Cases by Issue - Privacy

Ayotte v. Planned Parenthood of Northern New England - Oral Argument

Fri, 09 Jan 2009 14:48:56 +0000

Case:

Ayotte v. Planned Parenthood of Northern New England

Media File:

04-1144_20051130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Kelly A. Ayotte

Chief Justice Roberts: We'll hear argument next in Ayotte versus Planned Parenthood of Northern New England.

General Ayotte.

Mr. Ayotte: Mr. Chief Justice and may it please the Court--

The Court of Appeals struck down New Hampshire's parental notification act on its face based upon a potential application of the act that even respondents concede may only arise in the smallest fraction of cases.

In doing so, the act was rendered ineffective in the overwhelming number of applications where it is unquestionably constitutional, and State officials were denied the opportunity to imply... apply and enforce New Hampshire's act within constitutional limits.

New Hampshire's act can be applied in a manner to protect a minor's health if the rare case arises where a medical emergency occurs that requires an immediate abortion.

In that rare case, if it does arise, where an abortion has to be performed immediately and the child does not want to notify a parent, there is a judicial bypass mechanism available which requires New Hampshire courts to act promptly and without delay and in the best interests of the minor.

Justice Souter: May I interrupt you at this point?

Because there is one thing that I'm not sure that I understand about your position, and one way of reading your brief takes you a step beyond what you have just said.

So I would like to get clear on this.

And I understood your argument to be that given the safeguards such as judicial override, there simply was no... there was no need to read the health exception in, that in fact it was taken care of... any of the issues that might be raised in arguing for the need for health exception in fact were addressed by the statute.

The point at which I'm not clear on your position is... occurs in what you've said on page 11 of your yellow brief, if you could get that out.

Do you have the carry over paragraph on 11?

You go through the kind of a worst case analysis.

And you say, well, you know, assuming that all of the safeguards somehow do not work, finally, in the unlikely event that a parent refuses to waive the 48-hour waiting period and so on, a doctor who performs an emergency abortion under such circumstances would not be subject to either criminal prosecution or civil liability because his or her conduct would not only be constitutionally protected but would be independently justifiable, and then you cite the competing harms.

What do you mean when you say it would be constitutionally protected?

I read that as suggesting that there was indeed a constitutional requirement for some kind of a health exception, but that may not be what you meant.

What do you mean by constitutionally protected?

What are you getting at?

Mr. Ayotte: Justice Souter, in that instance, we did not say that it was an independent constitutional requirement that there be a health exception, but certainly reading this Court's cases, we should apply our act in a manner to protect if that rare case arises where an emergency abortion would come forward.

And, if a physician were prosecuted under those circumstances, we believe not only would he have a statutory ability to say this prosecution is inappropriate given our law, but also given those rare circumstances, we do not think that he, under the Constitution, may be prosecuted.

Justice Souter: And if he said,

"I may not be prosecuted under the Constitution because. "

what follows "because", in your view?

Mr. Ayotte: I may not because New Hampshire's act may not be applied in a manner to ensure that if a minor in that rare circumstance needs an immediate abortion, that she receives that immediate medical care in those circumstances.

Justice Souter: Doesn't that mean because there is a required health exception?

I mean, isn't that what you're saying?

Mr. Ayotte: Justice Souter, not that there is an express requirement of a health exception but that the law cannot be implied in a manner to infringe on the minor's health if that rare emergency case arises.

Justice Kennedy: Your first answer to Justice Souter was that the physician would say you can't be prosecuted under our law.

Do you mean this act that we're looking at here?

Or do you mean the law generally including constitutional protections that this Court has proclaimed?

Mr. Ayotte: Justice Kennedy, in that limited circumstance, we do not believe that the physician would be prosecuted under our parental notification act, given that there is a mechanism--

Justice Kennedy: Because of the text of the act or because of some policy that the attorney general would follow in order just to decline to prosecute?

We want to know what this act says in the instance posed by Justice Souter.

Mr. Ayotte: --Justice Kennedy, with respect to the act itself, assuming it were a life... excuse me, a health emergency short of a life threatening emergency, where a minor did not want to notify her parents and assuming those situations came forward and someone was unable to reach a judge, the act itself provides a mechanism in it that anticipates providing a judge where necessary, and so that would be the ability of a minor in those circumstances to seek a judge.

But if for some reason all of those situations came together and the minor could not seek a judicial bypass in those instances, there is an existing provision of New Hampshire law, our competing harms defense, that we believe protects the physician in those circumstances.

Justice Breyer: Let's just imagine a real circumstance.

A 15 year old walks in 2:00 in the morning on Saturday into the emergency room and the doctor looks at her, she's pregnant, she has this very high blood pressure, whatever.

And the doctor thinks to himself, he thinks, well, immediate abortion, no question, immediately deliver the child.

If I don't, I don't think she's going to die but she'll never have children.

And he's thinking that.

What's supposed to happen?

He calls up Pam Pevagoglio or Pam Livingston and there is no answer.

It's 2:00 in the morning and there is one of those things, leave a message, okay?

Should I call your parents?

No.

They don't know I'm pregnant.

Now, what's supposed to happen?

Mr. Ayotte: Justice Breyer, the physician in those instances could perform the immediate abortion.

Justice Breyer: It doesn't say that in the statute.

It suggests the contrary.

So what is the particular provision of New Hampshire law that tells that... I mean, the doctor... all these things are, you know, questions of probability.

And he doesn't want to risk being prosecuted and he doesn't want to risk losing his license.

And so what particular provision... he happens to have his lawyer with him.

[Laughter]

What does the lawyer say?

Okay?

What's the provision that saves him?

There is no health exemption in this statute.

Mr. Ayotte: Your Honor, his lawyer would advise him, in those circumstances, that the competing harms defense would protect his actions because he needs to act urgently necessary... in an urgently necessary circumstance.

Justice O'Connor: Would it protect him from a civil damages action as well as prosecution in a criminal case?

Mr. Ayotte: Justice O'Connor, by the plain language of the competing harms defense, it also precludes civil liability.

I would also say that that lawyer would also advise him, if given the opportunity, the attorney general is prepared also to issue an opinion describing the applicability of the competing harms defense in this very rare circumstance, should it arise.

Justice Breyer: How do we know?

I mean, what you're saying is fine, but how do we know that that's actually the law?

I mean, there are a lot of people who absolutely in very good faith would say that it isn't competing harm.

They would say that the competing right that the life of the fetus is more important than the possibility of the mother having children in the future herself.

See, there are people in good faith on both sides of this argument.

And so how do we know that the New Hampshire statute is going to do... not the statute, but your competing harms defense is going to do for this particular woman what a health exception would do?

Mr. Ayotte: Justice Breyer, because the harm that is being weighed here is the harm of urgently providing care to this minor who needs it, as opposed to the harm that the act is trying to get at, which is notification of parents.

It's not whether or not the minor can have an abortion.

The minor can always go forward and have an abortion under these circumstances.

So people aren't weighing the right of the fetus, in this instance, to the right of the mother's health.

So the weighing is quite easy.

And if given the opportunity, my office would be prepared to issue an opinion as to the applicability of this defense.

Justice Ginsburg: But, your opinion... that's the real problem here for the doctor who is on the line.

And you said the lawyer would say, oh, you've got this defense of... what do you call it harm--

Justice Souter: Competing harm.

Justice Ginsburg: --Competing harms, a defense... I think that a lawyer who cares about his client would say, defense is not what we want.

What we want is there is no claim, not that you have to put up a defense and maybe the attorney general will give us a letter saying that we come under that defense.

Wouldn't a careful lawyer say, what you need to be protected is that there is no claim for doing what you're doing?

Mr. Ayotte: Justice Ginsburg, in the Simopoulos case considered by this Court, one of the issues that was raised was a medical... the physician was prosecuted for performing an abortion outside the parameters of the Virginia act.

And the physician failed to raise a medical necessity defense.

This Court held that that was sufficient prosecution, that that was okay.

And this would work the same way.

Once the physician raises a competing harms defense--

Justice Stevens: General, may I just point this... suppose the lawyer or the doctor are aware of the legislative history and say, well, generally that's true.

But when you have a legislative history that suggests that the legislature considered this very defense and rejected it in the statute, would then that then give them some concern?

Mr. Ayotte: --Justice Stevens, the legislative history... there certainly was some indication that the legislature did not want a general health exception.

There is no indication in the legislative history that the legislature intended to preclude this narrow category of cases which constitute emergency cases short of that.

Justice Stevens: But if they discussed the issue on the floor of the legislature, why wouldn't they have drafted the precise protection they thought appropriate?

Mr. Ayotte: Your Honor, when they discussed the history on the floor of the House and Senate, they felt that it protected for emergencies and there was no discussion of this narrow category of cases short of death.

Justice Scalia: And you have another point here, don't you, about how general this statute is.

We don't normally interpret statutes this way, that they are totally invalid if any application of them would be unconstitutional.

That's not what we do with statutes normally, is it?

Mr. Ayotte: Justice Scalia, no.

In fact, the analysis, if you look at this one potential application, this... the standard applied by the Court of Appeals in this case goes well beyond even a substantial overbreadth test that is applied by this Court in the first amendment context.

Justice Scalia: In the first amendment.

Chief Justice Roberts: Am I right in reading your briefs that you don't object to a preenforcement challenge to the bypass procedure itself brought by physicians, for example?

Mr. Ayotte: Mr. Chief Justice, no, we do not object in that sense.

We think that is a very good mechanism to bring forth a case given that this Court has granted third party standing to physicians to resolve these types of claims.

And the benefit--

Chief Justice Roberts: And I gather that the debate on the evidence and the circumstances that might arise in that case would be quite similar to the debate in the present context.

In other words, there would be the same discussion between the different physicians about what emergencies arise and in what circumstances and whether that creates a problem and whether you can get to the courts in time and so on.

It would be the same underlying sort of evidence that we have here, right?

Mr. Ayotte: --Mr. Chief Justice, it would, but it would be much more narrowly focused in terms of bringing it as an as applied challenge, this was brought--

Justice Ginsburg: How would it be as applied?

Look at your reply brief at page 3.

And you've made it very clear, and I think that it is helpful that you did, that there could be this preenforcement action by doctors who would not have to wait until faced with an actual medical emergency to bring the suit.

You've talking about this small category of cases, but I take it from what you have read... what the lines I've just read, that you envision a doctor who says, sooner or later, I'm going to have such a case.

Right now, I don't know and I can't know until it's too late to come to any court, so I'm going to bring this preenforcement which you characterized as applied.

But I don't see how its as applied, if if the physician just says, as you put it, I don't have to wait until faced with an actual medical emergency to bring this suit.

So what is the relief, what is the lawsuit that you envision would be proper?

Mr. Ayotte: --Justice Ginsburg, the lawsuit would be a preenforcement as applied challenge and the physician would bring the claim and would say, as applied to me, I perform abortions, I also perform abortions on minors.

I need to perform an abortion in these emergency settings.

The court can issue an order, presuming it's not satisfied with the protections that are set forth in New Hampshire law that I've described.

Justice Ginsburg: Could you do that as a class action?

Mr. Ayotte: Depending on the circumstance, he may be able to.

Justice Ginsburg: What is the circumstance?

All you said here is there coule be a preenforcement challenge by doctors who would not have to wait until faced with an actual medical emergency.

Mr. Ayotte: Justice... I'm sorry.

Justice Stevens: Why isn't that this case?

I don't understand.

Justice Ginsburg: Yes, exactly.

Mr. Ayotte: Justice Stevens, this is not this case because this case was brought as a facial challenge.

Our entire act was struck down based upon that one potential--

Justice Stevens: You mean he has to bring the as applied challenge when he has the patient in his office?

He has to wait until he has the patient in the office, is that what you mean?

Mr. Ayotte: --No, he doesn't.

He can bring it before the patient is in his office and then the court could issue relief which would be much more consistent with the principles of certainly separation of powers and allowing the overwhelming number of our applications of our statutes that are valid to go forward.

Justice Scalia: We're talking about a lawsuit which asks for declaration, not that the entire statute is invalid.

But that, when faced with an emergency of the sort that this discussion has addressed, the physician can go ahead and perform the abortion?

Mr. Ayotte: That's correct, Justice Scalia.

Justice Scalia: Quite a different lawsuit from this one.

Mr. Ayotte: That's quite a different lawsuit and a lawsuit that would be certainly, from the State's perspective, would allow the overwhelming number of applications of this statute where there is no dispute that it works well, to go forward.

Justice Stevens: But in Justice Scalia's case, would not the reason for that relief have to be a finding that the statute is unconstitutional?

You can't just grant the relief because you think it's a good idea.

Mr. Ayotte: Justice Stevens, it would be only in the context of that one particular application as applied to that physician, which would have stare decisis--

Chief Justice Roberts: It would be a finding that the bypass procedure is inadequate which doesn't necessarily implicate the general notification provisions.

Mr. Ayotte: --Mr. Chief Justice, that would be the case.

And certainly if that one application, in that one potential rare case was found not to be valid, then the remainder of the applications can go forward.

And that is how most cases work with respect to as applied relief.

Justice Ginsburg: Then I think what you're saying essentially is that the First Circuit was concerned with this category, wanted to give preenforcement relief to the physician, so what they did was write except that they should have said this statute is not enforceable where there is a risk to the woman's health and it cannot be applied in any such cases.

Where there is a risk to the health, then the statute is okay.

Mr. Ayotte: Justice Ginsburg, the First Circuit went well beyond because it focused on a general health exception, they've now focusing it on an emergency exception.

But certainly the relief should have been as applied.

If I may reserve the rest of my time for rebuttal?

Justice O'Connor: Did you ask that the relief ordered below be more restrictive?

Was that challenged after the judgment was entered?

Mr. Ayotte: Justice--

Justice O'Connor: Did the Court below have a chance to consider tailoring it more narrowly, as you suggest today?

Mr. Ayotte: --Justice O'Connor, we did raise the application of the severance clause below, although the court, both at the district court level and the First Circuit appeared to look at the... the lack of a general health exception as a per se constitutional problem that rendered the statute as a whole invalid.

Justice O'Connor: I just am not clear to what extent you really raised the possibility with the court below of carrying its judgment more narrowly as you're suggesting today should be done.

Mr. Ayotte: Your Honor, we certainly raised the severance issue in the district court.

Justice Ginsburg: You've used this word severance now twice.

Severance is I excised a clause from the statute, but you're not asking for that.

It's not severance.

There is no provision to be severed here.

It's putting a caret mark and adding something to it.

Not taking out any provision, but putting in an additional provision.

Mr. Ayotte: Your Honor, you're correct.

What our position is is that they did not meet the standard that they should have been able to meet for a facial challenge, which would grant as applied relief which would only be invalid in that one potential application.

If I may reserve the rest of my time, with all due respect.

Argument of Paul D. Clement

Chief Justice Roberts: Thank you, General.

General Clement, we'll hear now from you.

Mr. Clement: Mr. Chief Justice and may it please the Court--

Attribution:

The Oyez Project

Featured:

Scheidler v. National Organization for Women (NOW) - Oral Argument

Fri, 09 Jan 2009 14:48:59 +0000

Case:

Scheidler v. National Organization for Women (NOW)

Media File:

04-1244_20051130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Alan Edward Untereiner

Chief Justice Roberts: We'll hear argument first today in Scheidler versus National Organization for Women, and Operation Rescue versus National Organization for Women.

Mr. Untereiner.

Mr. Untereiner: Mr. Chief Justice, and may it please the Court--

In 2003, this Court, through all appearances, brought this case to an end by holding that all of predicate RICO counts found by the jury must be reversed, that the liability judgment must be reversed, and that the injunction must be vacated.

On remand, however, a panel of the Seventh Circuit found a way to keep this case alive.

It held that four of the 121 RICO predicates somehow survived this Court's decision, and it strongly suggested that the Hobbs Act punishes acts or threats of physical violence that have no connection to either robbery or extortion.

Today, we are asking this Court to reverse the erroneous decision below and remand with very explicit instructions that judgment be entered in favor of Petitioners.

Reversal is warranted because of three separate legal errors made by the Seventh Circuit.

First, the lower court failed to obey the clear holdings and remand instructions of this Court.

Second, the Seventh Circuit erroneously held, in conflict with two other Circuits, that the Hobbs Act plausibly can be read to cover freestanding acts or threats of physical violence.

And, third, the Seventh Circuit erred in its previous decision, in 2001, in holding that the racketeering law, RICO, authorizes private injunctive relief.

Justice O'Connor: Counsel, if we were to agree with you on any one of the three questions, would that end the case?

Mr. Untereiner: That's correct, Justice O'Connor.

Because of what the Seventh Circuit also said, that a new trial is not in the cards and the damages verdict is gone and nothing more remains to be done except for the two issues that it outlined, that's correct.

If the Court rules in our favor on any issue, the case is over.

Let me turn to our first point.

The Seventh Circuit's decision is inconsistent with this Court's previous holdings.

This Court's 2003 opinion left no doubt that, quote, RICO predicates must be reversed.

But--

Justice Ginsburg: Yes, but there was a theory that was put to the jury... and it's right there on the special interrogatories... one category was violent acts that obstruct commerce with no connection at all to extortion.

That was there.

And I have a question about your characterization of what the Seventh Circuit did.

It was puzzled.

It says, "Extortion, they all go".

But here are these four that don't involve extortion, and there's no ruling from the Court on those.

Was the Court supposed to assume that the Court made a question... decided a question of statutory interpretation by silence?

Mr. Untereiner: --No.

No, Justice Ginsburg, but the argument was made in this Court, at the petition stage the last time around, that those four counts were, in fact, included in the petitions.

At that time, of course, there was no contrary authority.

The Yankowski opinion of the Ninth Circuit made clear, and I think the language of the Hobbs Act makes clear, that freestanding acts or threats of violence are not covered.

So, we argued, at the petition stage, that those counts were covered.

And then, at the merits stage, the Petitioners asked this Court to reverse and remand for entry of judgment in our favor on all claims and all counts.

The Respondents, at that point, did not argue--

Justice Stevens: Was there any argument on the merits as to those four counts?

Mr. Untereiner: --No, Justice Stevens.

Justice Stevens: No.

Yeah.

Is it conceivable that we overlooked that point?

Mr. Untereiner: Well, we take the Court to mean what it... what it says.

Justice Stevens: But if I just... do you think it's conceivable that we just didn't realize those four points were at issue?

Mr. Untereiner: I think it's possible.

But if the Court did overlook those, I think that would have been something that should have been raised in a rehearing petition in this Court.

Justice Stevens: And do you think we resolved the statutory construction issue that you're now arguing very carefully at this time?

Mr. Untereiner: There's no indication, in the court's opinion, that it resolved it.

It may have assumed that we were right, because we made the argument at the--

Justice Stevens: They may assume it--

Mr. Untereiner: --petition stage--

Justice Stevens: --but there's nothing in the opinion to give any--

Mr. Untereiner: --That's correct.

That's correct, Justice Stevens.

Justice O'Connor: If it's possible, at least, that we just overlooked that aspect in the issuance of our opinion, would it be more helpful to move on to the other two questions at issue here, since they would be determinative?

It's--

Mr. Untereiner: I'd be happy to--

Justice O'Connor: --it's disturbing to think that some court below deliberately was trying to defy what this Court said.

And I'm not sure there is any indication of that.

It may have thought that those issues... those other acts were overlooked, and, therefore, they had some right to deal with it.

But I wonder if we shouldn't focus on the other two legal issues here.

Mr. Untereiner: --I'd be happy to move on, Justice O'Connor, to those two issues.

Our second argument is that the Hobbs Act does not punish freestanding acts or threats of violence.

By "freestanding", we mean unconnected to either robbery or extortion.

And I think that's apparent from the language of the Hobbs Act, which has three clauses.

And the third clause covers acts or threats of violence, quote,

"in furtherance of any plan or purpose to do anything in violation of this section. "

unquote.

So, there needs to be a connection.

There needs to be a violation of this section.

And our position is that that refers back to the principal offenses under section 1951, robbery or extortion.

Now, the Respondent's position is that the mere act of obstructing commerce, or affecting commerce, or, I suppose, even delaying commerce, is a violation of the Hobbs Act.

And I don't think it's possible to read the statutory language that way.

So, we think that argument is clearly foreclosed.

Now, if there's any doubt about that, based on the language of the Hobbs Act, as amended in 1948, one need only look back to the 1946 version of the Hobbs Act, as originally passed.

And there, it... there's no debate that Congress intended to cover acts or threats of physical violence only if undertaken in furtherance of a plan or purpose to commit robbery or extortion.

So, Respondent's position rises or falls on the proposition that in 1948, when Congress recodified and revised all of Title 18 of the U.S. Code, it dramatically expanded the Hobbs Act.

This Court, in reviewing revision and recodification statutes, applies special rules of construction.

It requires the clear statement... or clear expression of intent to make a substantive change; and, if there isn't one, it assumes that no substantive change was intended.

If you look at the revisor's notes to section 1951(a) in the 1948 revision, it's clear that there is no intent to make any substantive change.

So, I think the Court really doesn't need to go any further on that second issue to rule in the Petitioner's favor.

Justice Ginsburg: The question is whether the Court should rule on it, as in a matter of first decision.

We are a court of review.

There was no determination of whether the Hobbs Act included such a category in the Seventh Circuit.

So, the difficulty, the impediment to addressing your position is that however strong it may be, it wasn't resolved below, so why shouldn't we follow the natural order that first the District Court speaks, and then the Court of Appeals, and then it comes here?

Mr. Untereiner: Justice Ginsburg, I understand the concern, but the Seventh Circuit did everything but resolve the issue.

It says it was resolving the issue, but it... at the same time, it said that it rejected our argument based on the rule of lenity.

It rejected our argument based on the over federalization of State crimes.

It said that both... it rejected our plain language argument.

It went on and on to reject all the same arguments we're making in this Court.

So, I think if the case were remanded to the District Court--

Justice Scalia: Excuse me.

How could the... how could the Court of Appeals not have resolved this issue?

How could it possibly have rendered its judgment without resolving this issue?

Mr. Untereiner: --Well, what the... what the Court--

Justice Scalia: Did you raise this issue below?

Mr. Untereiner: --Yes, we did, Your Honor.

We raised it both in the... at the rehearing petitions in the Seventh Circuit and in the initial appeal.

It did resolve the issue, insofar as it held that the Hobbs Act may plausibly be read to cover freestanding acts for threats of violence.

And that holding is in conflict with the decision of the Ninth Circuit and the Sixth Circuit.

Justice Scalia: Excuse me.

Is that how we apply statutes, that if they may plausibly be read a certain way, that's what they mean?

Mr. Untereiner: Well, that is what the--

Justice Scalia: I don't understand how that's a resolution of the question.

Mr. Untereiner: --The Seventh Circuit went out of its way to say it was not finally resolving the question.

But, Justice Scalia, it, again and again, went through our arguments and rejected them.

And then, at the end of its opinion, it said it would be better to read the statute at... take the statute at face value, and that, it suggests, was what Respondent's position was.

So, I think it went as far as it possibly could to resolve the question and reject all of the arguments that are being made here.

So, I think it... to go back to the District Court, it would be a foregone conclusion, and it would just result in further delay.

This case has gone on for almost--

Justice Kennedy: Well, I'm with you--

Mr. Untereiner: --20 years.

Justice Kennedy: --up to the point where you say it went as far as it possibly could.

As Justice Scalia indicates, why didn't it say,

"This is the way the Act must be interpreted. "

period?

So, it didn't go as far as... I'm just quibbling with your... I'm just quibbling with your statement that it went as far as it possibly could.

I don't think it did.

That's the problem.

Mr. Untereiner: Well, yes, it did leave open the possibility that a court might come to the opposite conclusion.

But I think if you're the District Court reading the opinion of the Seventh Circuit, I think it's clear which way you're going to have to come out.

Justice Ginsburg: Why?

Justice Kennedy: We got you off of--

Justice Ginsburg: Were you--

Justice Kennedy: --We got you off of your first point, but I'd like to just loop back to that for a minute, at this point.

Is this imprecision, this ambiguity, grounds for our reading... our insisting on reading our earlier remand and judgment literally and saying that there are no predicate acts... there are no predicate acts that support this judgment?

Mr. Untereiner: Well--

Justice Kennedy: Do... is there some prudential argument for us not to reach this issue and just insist on the wording of our earlier mandate?

Mr. Untereiner: --The Court could certainly come out that way on prudential grounds as a reason to avoid deciding a Hobbs Act issue.

But, in our view, the Hobbs Act question is a fairly easy and straightforward one.

And the Seventh Circuit's opinion is going to create mischief if left untouched.

Justice Ginsburg: --I'm concerned about your characterization, not only of suggesting that there was some attempt to force a particular decision, but I'm reading the Seventh Circuit's remand to the District Court.

It went through your argument, which it said was a substantial one, that no change was intended in the codification.

And it said,

"While these revisions were intended to be formal stylistic changes, it is not beyond the realm of the possible that the revisors may have made certain substantive changes. "

That doesn't sound like they were ruling on it definitively, but they were tipping their hand.

"Not beyond the realm of the possible. "

That was--

Mr. Untereiner: The Seventh Circuit did everything it could to make it seem like a plausible issue, as opposed to a very clear issue that should be resolved in our favor.

It went out of its way to do that.

Justice Scalia: I don't understand how they... how they could dispose of the case without resolving that.

That's my puzzlement.

Mr. Untereiner: Well--

Justice Scalia: How... I mean, can we do that in a case that comes up here, and just say,

"There are good arguments on both sides, it's quite plausible. "

and remand the case without resolving the issue?

[Laughter]

Justice Ginsburg: --They asked the District Court to resolve it.

They said the District Court should resolve it in the first instance, and then they would review it, presumably.

Mr. Untereiner: --That's right, Justice Ginsburg.

But I do think a premise of the remand for further proceedings in the District Court is that it's plausible to read the statute this way.

And I think the Court could, and should, reverse that aspect of the Seventh Circuit's decision.

Justice Stevens: --Of course, the reason they said it was plausible is that... and you may well be right, on the bottom line, and the Government agrees with you, but there are... there's a redundancy in the statute.

There's a phrase in there that could be taken out, and the statute would have exactly the same meaning, if you're correct.

Mr. Untereiner: We don't agree that there... well, perhaps Your Honor could elucidate--

Justice Stevens: It seems to me those words... I forget what the... "commit threats of physical violence".

So, take those words out.

The statute will have the same meaning.

Mr. Untereiner: --I don't think that's right.

I don't think that's right--

Justice Stevens: Oh, really?

Mr. Untereiner: --Justice Stevens.

I think that that does add something.

The argument is being made in this case that those words are superfluous under our reading, but I don't think that's correct.

Justice Stevens: What function do they perform?

What case would it cover that would not otherwise be covered?

Mr. Untereiner: It would cover preparatory acts of violence that do not rise to an attempt.

We gave several examples--

Justice Stevens: That do not rise to an obtaining?

Mr. Untereiner: --No, do not rise to an attempt, an attempted extortion or robbery.

The example we gave... we gave several examples in our blue brief.

One of them is a defendant who wants to rob a factory and--

Justice Stevens: Oh, I see what you're saying.

Mr. Untereiner: --and--

Justice Stevens: You're... I understand.

Mr. Untereiner: --Yes.

Yes.

If I may, I'd like to turn, in my limited time, to the third question, which is the... whether RICO authorizes private injunctive relief.

And we want to make three basic... or I'd like to make three basic--

Chief Justice Roberts: No, we didn't reach that, last time.

Mr. Untereiner: --That's correct, Mr. Chief Justice.

Chief Justice Roberts: Why, if we... if we agree with you on the Hobbs Act, I assume you would not have us reach that third question this time, either.

Mr. Untereiner: That's correct, there would be no need for the Court to reach that issue this time, either.

But I'd like to just say a few words about that provision, because I think we're right on that issue, as well.

And the Court can pick any one of these three grounds to rule in our favor.

We'd be happy with any of them.

Our principal argument on RICO is that RICO's civil remedies provisions were drawn from the antitrust laws, from the Clayton Act and from the Sherman Act before it.

In fact, the treble damages provision of RICO is taken almost verbatim from the Clayton Act and Sherman Act provisions.

This Court, in a long line of cases, held that the Sherman Act does not authorize private injunctive relief.

And that holding... those holdings were based on the provisions on which these RICO remedial provisions were modeled.

And so, we think when Congress took that language, which is essentially identical, at least in the... in the... in the treble damages provision, from the antitrust laws, that it was entitled to assume that they would be read the same way in RICO.

Justice Stevens: But, of course, at the time they did that, the Clayton Act had already been passed.

Mr. Untereiner: That's true, Justice Stevens.

But I think those provisions were carried forward, and Congress... and this Court's cases, again and again, have relied on Congress's use of the... of the Clayton and Sherman Act models.

You've said that's a dominant strand in the legislative history.

Chief Justice Roberts: Your argument's a little inconsistent with the Franklin case, though.

Mr. Untereiner: I'm sorry.

Chief Justice Roberts: Gwinnett... Franklin versus Gwinnett County.

Mr. Untereiner: Mr. Chief Justice, we think that Franklin is distinguishable.

There are two lines of this Court's cases.

Franklin falls into one line.

That's a case where this Court finds a... or acknowledges a private right of action, but where, necessarily, there's no guidance from Congress of what the remedies are.

And in that situation, the Court does apply a presumption that all available remedies are... will be... will be imputed.

In this... in the second line of cases, which is what this case is all about, Congress sets forth a detailed remedial scheme.

And in those cases, I think it's inappropriate... and this Court has said that repeatedly... for courts to add remedies to those schemes which Congress is... has selected.

Now, this is especially true in this case, because Congress relied on those antitrust precursors.

And, beyond that, section 16 of the Clayton Act, which expressly authorizes private injunctive relief, is... has no analog in RICO.

Now, Congress thought about including a provision like section 16 of the Clayton Act when it considered RICO.

Again and again, proposals were made, but Congress did not adopt those proposals either during the consideration of RICO or shortly thereafter.

If there are no further questions, I'd like to reserve the balance of my time for rebuttal.

Argument of Lisa Schiavo Blatt

Chief Justice Roberts: Thank you, Counsel.

Ms. Blatt.

Ms Blatt: Thank you, Mr. Chief Justice, and may it please the Court--

It is the position of the United States that the physical violence clause of the Hobbs Act requires an intended robbery or extortion, and that private parties, under RICO, cannot obtain injunctive relief.

Justice Stevens: Would you not--

Justice O'Connor: Would you tell us what... which one of these questions, in your view, we ought to address, first and foremost?

If the answer to any of them is favorable to Petitioner's position, I guess that's the end of the case.

Ms Blatt: That's right.

We think what would be appropriate is to recognize that the... this Court's decision last time around did contain a sweeping statement at the end that all the predicate acts must be reversed.

At the same time, the issue of the physical violence clause was not briefed by the parties, it was not discussed in this Court's opinion, it was not discussed in the Seventh Circuit's opinion.

And "law of the case" type principles are discretionary, and this Court has the discretion to reach the two other issues in the case.

Now, the RICO issue is more squarely presented, because there's an actual holding by the Seventh Circuit on that point.

It's also an issue on which the Circuits are divided.

It's important and recurring, and it's been before this Court twice.

At the same time, the Court also has discretion to clean up, or clarify, the Hobbs Act issue.

There was a remand.

And although there's no holding by the Seventh Circuit, there was a remand that was predicated and based on an assumption that the plaintiffs had raised at least a substantial question.

And this Court has discretion to say that was an error of law, because, under the plain language, the physical violence clause is linked to robbery or extortion.

That's plain on the statute, because it requires that the physical violence be in furtherance of a violation.

Justice Ginsburg: Even though two U.S. attorneys, years back, did predicate cases on there being a discrete crime of obstructing commerce through violent means.

Ms Blatt: That's correct.

And those prosecutions were inconsistent with the written guidance of the Department of Justice in a longstanding interpretation of the Hobbs Act, at least since 1965, that it required an intended robbery or extortion.

Justice Stevens: --Ms. Blatt--

Ms Blatt: And--

Justice Stevens: --can I identify a concern?

I'd like you to help me out on it.

I... that language, if you construe it the way the other side does, it would cover certain violent conspiracies that would merely obstruct interstate commerce that we could all be concerned about today.

Are there other criminal statutes on the book that fill that gap?

Ms Blatt: --Yes.

18 U.S.C. 2332(b), subsection (g), is a laundry list of Federal statutes, and it's a good source of reference for the type of Federal statutes that cover violence where there's a distinct Federal interest.

Justice Stevens: So that you're saying, in substance, that you don't need to read the Hobbs Act the way they do in order to protect the public from the kind of harms that the... they would read the statute as covering.

Ms Blatt: That's correct.

There's a lot of statutes on the books that apply to bombing in public places, violence against communication facilities, computer, transportation, energy, airports, any kind of mass transportation.

And that... 18 USC 2332... it's a long list of statutes.

There's also the arson statute and the bombing statute, the use of any explosives in a... in a... in a facility that's used in interstate commerce.

And the Government has brought thousands and thousands and thousands of Hobbs Act prosecutions, and, but for those two, the only two that we can identify, all of our prosecutions have been linked to robbery or extortion.

And if I could address the superfluous point, we don't think the clause is superfluous either, for two reasons.

It applies to a defendant who injures innocent bystanders during a robbery.

Now, the defendant has committed the crime of robbery, but he's also committed the separate crime of using violence against any person in furtherance of that robbery.

So, there could be cumulative punishment based on that offense, and there would be--

Justice Kennedy: What do you mean?

It's a separate--

Ms Blatt: --two separate offenses.

Justice Kennedy: --a separate offense?

Ms Blatt: It's a separate offense for--

Justice Kennedy: So you charge two counts for violating the same section?

Ms Blatt: --Yes, because there's two distinct harms.

There's not only the business, as the victim of the robbery, but there's the innocent bystanders who were injured or killed during the course of that robbery, and that would be two separate... and then there's another way it's not--

Justice Kennedy: Two separate violations, each of which violates the same statute?

Ms Blatt: --Yes, that's right.

Justice Breyer: Is it... you just... on your list, I had the impression, but tell me if I'm right or wrong, that there's a specific statute dealing with abortion clinics now, though there wasn't when this case began.

Ms Blatt: Yes, the--

Justice Breyer: So that if--

Ms Blatt: --FACE Act.

Justice Breyer: --Operation Rescue did the same kind of thing now that they did then, the Petitioners in... the plaintiffs in this case would be able to get relief under that statute.

Is that right or wrong?

Ms Blatt: That's absolutely correct.

The FACE Act, which was passed in 1994, gives private parties a right for damages and injunctive relief for blocking access to clinics.

That would... that would cover this specific case, and then there's the more general statutes I was speaking about earlier.

But there is a specific right to injunctive relief, and I think the plaintiffs in this case tried to add claims under the FACE Act, but they were... they were denied the ability to do that.

The second way it's not superfluous is the example given by Petitioners, in that it applies to a defendant, for instance, who tries to enlist another person in a robbery, but the neighbor, or the... excuse me, that person just refuses.

The physical violence clause would apply to that situation regardless of whether that conduct also qualifies as an attempt.

Justice Ginsburg: Ms. Blatt, your time is almost over, so, on the injunction part, what remedies are available to the United States under your reading of the provision?

Injunctive relief, yes.

What about... is there any monetary relief that the United States can seek under RICO?

Ms Blatt: Well, 1964(a) addresses equitable relief, and the Government can get things like disgorgement under (a).

But as far as damages are concerned--

Justice Ginsburg: Yes.

Ms Blatt: --no.

This Court held, in the Cooper case, which is an antitrust case that was talked about in the Flamingo decision recently, the United States is not a person who is able to sue under the antitrust laws, because... the general background principle that the United States is not a person.

And we think it's highly relevant that, after this Court repeatedly held that private parties cannot get injunctive relief, that the United States cannot get damages under the antitrust laws, Congress, in the Clayton Act, passed two express provisions of Government damages action... that was in 1955, and now it's a treble damages action... as well as an express private injunctive action.

And, thus, there was this menu of remedies in the antitrust laws of express Government equitable, express Government damages, express private treble damages, and then Government damages.

But Congress, in RICO, only picked up two of them.

It picked up an express, a right for the attorney general to seek injunctive relief and other equitable relief, and it picked up an express right for private parties only to seek treble damages.

In light of the holding after holding after holding, we identified six cases that were... that were rendered before the passage of RICO, and the Cooper decision, which said the Government cannot seek damages.

We think it's very clear that when Congress borrowed from the antitrust laws, but did not pick up those two express rights, that the governing principle is that when Congress borrows a statute that's been definitively construed, Congress adopts that judicial construction along with the statute.

And it's particularly relevant because of those two express provisions.

And RICO is... just contains that structure that was there in the Sherman Act, with the express public equitable action and the express private treble damages action.

If there are no question, we'd ask the Court to, if it wants, to reach--

Justice Kennedy: I have... just have one question.

If we were to adopt the Petitioner's first suggestion that we should simply have a strict reading of our mandate, would that cause problems, so far as people interpreting our precedent and indicating that, by implication, we've reached this Hobbs Act question?

Ms Blatt: --No, I don't think so.

I think in the... I don't think so.

The Court could apply just straightforward "law of the case" principles and say,

"Regardless of whether we actually reached the four predicate acts, our judgment spoke clearly that the injunction had to be vacated. "

Justice Stevens: Regardless of whether we knew what we were doing, we said it.

[Laughter]

Ms Blatt: And that's why we think it's appropriate for the Court to say, just like the Court did in the recent per curiam Eberhart, that generally courts are supposed to follow this Court's mandates, and they're supposed to articulate their concerns to facilitate resolution by this Court, and then leave it up to this Court to clarify an earlier decision.

Justice Scalia: Except if they think we didn't know what we were doing.

I--

Ms Blatt: I think that--

Justice Scalia: --they ignore it if they... if they think that we didn't know what we were doing.

Ms Blatt: --Well, they could have--

Justice Stevens: Only when it's perfectly clear that we didn't know it.

[Laughter]

Ms Blatt: --We do think that the judgment did sweep more broadly than the circumstances--

Justice Stevens: You don't think there's even an arguable basis for saying we resolved the statutory question that's presented now, do you?

Ms Blatt: --No, because usually the Court doesn't decide important... the construction of a Federal statute, a Federal criminal statute, without discussing it.

It was... I don't want to say "buried in footnotes", but it was mentioned in the footnotes at the petition stage the second time around, and then it dropped out of the case.

And even the United States didn't discuss it--

Justice Stevens: But it's not mentioned in the opinion.

Ms Blatt: --It's not mentioned in the opinion.

It's not mentioned in the briefs, at the merits stage.

It was not mentioned by the Seventh Circuit.

At the same time, the court, at the end, did say that all of the predicate acts had to be reversed.

Thank you.

Argument of Erwin Chemerinsky

Chief Justice Roberts: Thank you, Ms. Blatt.

Mr. Chemerinsky.

Mr. Chemerinsky: Good morning, Mr. Chief Justice, and may it please the Court--

The Seventh Circuit did exactly the right thing in this case.

It sent the case back to the District Court and asked the District Court to determine whether an injunction could remain, based on the four counts of physical violence and threats of violence, and asked the District Court to determine whether or not the Hobbs Act applies to physical violence and threats of violence apart from extortion and robbery.

This made great sense.

No court, in this long litigation, had yet discussed the meaning of the Hobbs Act and whether it applies to physical violence and threats of violence apart from extortion and robbery.

There's already been a good deal of discussion about what this Court meant in its prior decision.

I think you find clarification if you look at page 399 of your prior decision, where the Court lists the predicate acts that it was considering.

And if you add up the numbers, it adds to 117 predicate acts, but if you go to the jury's verdict, the special interrogatories, they found 121 acts.

What was omitted from the Supreme Court's listing last time were the four counts of physical violence and threats of violence in violation of the Hobbs Act.

Justice Souter: Well, that's true, but don't you have the further difficulty that we didn't nearly reverse with respect to the... to the Hobbs Act violations, or to the listed ones.

We made it clear.

We said, expressly, that the judgment had to be reversed, which seems to sweep everything within it, doesn't it?

Mr. Chemerinsky: No, Your Honor.

What this Court did was reverse and remand for further consideration, consistent with the decision of this Court.

Since this Court had not considered the--

Justice Souter: But, I mean, that's what we always say.

And it may be that there is absolutely nothing to do, at that point, except enter judgment for one side and be done with it.

Mr. Chemerinsky: --But this Court has been clear that it only decides the issues that it speaks to.

It's not plausible, Your Honor, that this Court was deciding a major unresolved issue of Federal criminal law without ever speaking to the question--

Justice Souter: Well, I think... I think, you know, your argument is fine, but the trouble is, if the question is,

"Did the Seventh Circuit honor the judgment of this Court? "

I think there's a pretty good argument that it not... that it did not, based upon the fact that we, in effect, summed up everything we were purporting to say with the phrase that the judgment itself had to be reversed.

Mr. Chemerinsky: --Except, Your Honor, this Court has said that it doesn't decide issues that weren't presented to it.

And if you look at page 397--

Justice Scalia: He's not talking about the deciding of issues; he's talking about reversing a judgment.

You don't have to go into what the issues are in order to follow that instruction.

The judgment is reversed.

And if there were issues that should have been resolved in order to reverse the judgment, and that weren't, it would seem to me that your remedy would not be to say to the Court of Appeals,

"Well, the Supreme Court didn't mean what it said. "

or,

"didn't know what it was doing. "

but, rather, to move for reconsideration here.

Mr. Chemerinsky: --No, Your Honor.

Rehearing is to issues that were decided by this Court.

This Court clearly did not speak to the meaning of the Hobbs Act.

And so, it was completely appropriate for the Seventh Circuit to say that this Court considered the issues, in terms of what extortion was about, whether the injunction is permissible under civil RICO.

If you look at the--

Justice Scalia: Are you saying you couldn't... you couldn't file a motion for rehearing on the ground that the Court neglected to address four points that were made very... you made nothing of them in the... in the argument or in the briefs.

It was almost not considered at all.

Do you mean that when a judgment is issued that is so clearly, in your view, erroneous, you can't come to the Court and say,

"The judgment is erroneous, you forgot to address these issues? "

I hope you can do that in a motion for rehearing.

Mr. Chemerinsky: --But, Your Honor, it's not required to present it that way.

And I think what's incorrect about your phrasing is, it was Petitioners that did not present this.

It was the same Petitioners last time.

They presented to this Court the questions as to the meaning of RICO.

In fact, if you look at page 397 of your prior decision, it clearly states that there were two issues presented, what RICO.

I think it was completely appropriate, then, for Respondents to say this Court didn't deal with the four issues in... concerning whether violence and threats of violence are separately from the Hobbs Act.

And it was then permissible to say to the Seventh Circuit,

"These remain as a basis for relief. "

Justice Scalia: They would have to say not just that.

They would have to say,

"The court did not deal with those four issues, and, therefore, its judgment was erroneous. "

They would have to say that in order to... in order to act the way they did--

Mr. Chemerinsky: Your Honor--

Justice Scalia: --because our judgment was "reverse".

Mr. Chemerinsky: --Your Honor, if this Court had entered judgment for Petitioners, which it could have, then you would be correct.

But, instead, what this Court did, as I said, is reverse and remand for consideration.

And the Seventh Circuit--

Chief Justice Roberts: Do we look... do we... do we typically enter judgment, ourselves?

Mr. Chemerinsky: --No, typically you don't.

But it is certainly permissible and possible for this Court to do so.

Chief Justice Roberts: When was the last time we did that?

Mr. Chemerinsky: I don't know the answer to that, Your Honor, other than, of course, as a court, this Court obviously could enter judgment for Petitioners.

The fact that this Court said--

Justice Stevens: Well, I don't think we would actually enter judgment.

We'd... we might reverse with instructions to have the lower court enter judgment, but we wouldn't enter the judgment ourselves.

Mr. Chemerinsky: --Your Honor, the Court could certainly, and, more likely, would do what you say.

It could also affect the judgment--

Justice Stevens: The mandate, in this case, remanded, is that what you--

Mr. Chemerinsky: --That's correct, Your Honor.

Justice Stevens: --So further proceedings--

Mr. Chemerinsky: That's right.

Justice Stevens: --consistent with the opinion.

Mr. Chemerinsky: And my only point is, since this Court clearly said it was dealing with 117 of the acts, and clearly did not mention the four counts of violence and threats of violence under the Hobbs Act--

Chief Justice Roberts: Well, it also said, in the last paragraph,

"all of the predicate acts supporting the jury's verdict. "

Mr. Chemerinsky: --That's right.

And the question, of course, is, What does "all" refer to here?

And I would say, if you go back to page 399, it lists the predicate acts that it's referring to and there--

Chief Justice Roberts: No, it says--

Mr. Chemerinsky: --117--

Chief Justice Roberts: "# all the predicate acts supporting the jury's finding of a RICO violation. "

Mr. Chemerinsky: --But, Your Honor--

Chief Justice Roberts: So, it's quite clear what "all" was referring to.

Mr. Chemerinsky: --But, Chief Justice Roberts, then the assumption would have to be that this Court was deciding the four counts, in terms of violence and threats of violence, even though it wasn't presented in the cert petition, even though it wasn't briefed, and even though it was never discussed in this Court's opinion.

And I think it was quite logical for the Seventh Circuit to say the appropriate thing to do is to let the District Court decide whether any injunctive relief was appropriate, based on those four counts; and, if so, what that provision of the Hobbs Act means.

Justice Ginsburg: Mr. Chemerinsky, if we turn from what this Court did, or did not, think about last time around to what those four counts were, would I look to find out what were those four acts of violence that remain in the case?

I could not find, in any of the papers before us, any specific definition of what those acts of violence were.

I mean, the jury was given... I don't know what... was it a dozen possibilities?

And they found four.

But which four, we have no idea.

Mr. Chemerinsky: But, Your Honor, that would be a reason why this case should go back to the District Court, because that's the judge who tried the case.

Justice Ginsburg: But he... but wasn't this tried to a jury?

That was a jury that made those findings.

Mr. Chemerinsky: Yes--

Justice Ginsburg: And the jury is no longer sitting.

Mr. Chemerinsky: --But the judge presided over the jury trial, and the judge could identify if there were four acts of violence and threats of violence to obstruct interstate commerce.

Justice Ginsburg: He knows that there were four acts.

He knows that he... under his instructions, the jury could pick 12.

How could he know which four the jury homed in on?

Mr. Chemerinsky: But, Justice Ginsburg, he doesn't need to know which four.

What he needs to determine is, Did the record that was presented to the jury support the finding that there were four acts of violence and threats of violence?

And we'd suggest that--

Justice Ginsburg: But does it... when what turns on that finding is injunctive relief, the judge might very well be influenced by what those particular acts were.

He might say one set of four was not adequate to issue this injunction, but another set of four would be.

And we just don't know... we don't know what those acts were.

The jury is not to be called back.

The Seventh Circuit said "no more evidence".

So, if we get down to those four acts, how can we say those are sufficient to uphold an injunction, when we don't even know what the acts were?

Mr. Chemerinsky: --But the traditional rule is to interpret the jury's verdict in a way that's most favorable to its conclusion.

And so, here what the judge has to decide is, based on the record, were there four acts of violence or threats of violence to obstruct interstate commerce?

And we'd suggest it would be quite easy for the judge to identify four such acts.

Justice Scalia: Well, you say "most favorable to its conclusion", but did the jury conclude that there should be an injunction?

Mr. Chemerinsky: No, of course, but--

Justice Scalia: That's up to the judge.

Mr. Chemerinsky: --but the jury--

Justice Scalia: So, I mean, the principle that you interpret a verdict in the manner most favorable to its conclusion has no application here at all.

Mr. Chemerinsky: --But, Your Honor, the jury did find, in special interrogatory 4(e), that there was violence and threats of violence and if... to obstruct interstate commerce.

Also here, remember the judge held a separate hearing after the jury verdict, before issuing injunction.

And if, on the basis of the evidence that he heard during the trial in that special hearing, he found four acts of violence and threats of violence, he then has to decide what injunctive relief is appropriate.

And, of course, he would also, consistent--

Justice Scalia: Excuse me.

You mean it's up... I don't understand that.

The judge, in order to issue the injunction, becomes a second factfinder, and he can find four... he can pick four out of the twelve, perhaps four that the jury had not picked?

Mr. Chemerinsky: --Your Honor, since this is an injunction, he is allowed to consider the evidence that he heard, since he was sitting in an equitable matter.

And so, there were actually two presentations--

Justice Scalia: So, he can... he can actually make a finding.

And it... and it could be that the jury found that eight of them weren't valid, and the judge, in order to issue an injunction, can contradict the jury and say,

"You know, I find that other four? "

Mr. Chemerinsky: --Well, when it comes to injunctive relief, the judge can hold a separate hearing, and that's exactly what happened here.

And I believe the issue for the judge on remand would be, Were there four acts of violence or threats of violence to obstruct interstate commerce?

And I think the record clearly indicates there were.

The judge said, here,

"There is enough evidence, to fill this courtroom, of illegal acts by the Respondents. "

Justice Ginsburg: But the Seventh Circuit in its most recent expression said,

"It may well be that the judge will decide that those four predicate acts. "

--as opposed to 121 going in, four...

"were not sufficient to support certainly a nationwide injunction, but perhaps not any injunction. "

Mr. Chemerinsky: That's correct, Your Honor.

That's why it was appropriate for the Seventh Circuit to remand the case to the District Court, because if the court were to conclude that an injunction is not appropriate, then anything that would be said about the meaning of the Hobbs Act or about civil RICO would then just be an advisory opinion.

And that's why this Court, we believe, should also send the case back to the District Court.

But if it reaches the meaning of the Hobbs Act or civil RICO, we believe that this is a situation there the plain meaning of the statute clearly controls.

Chief Justice Roberts: Is there anything that... under your reading of the Hobbs Act, that isn't covered by the FACE Act?

Mr. Chemerinsky: Well, yes, Your Honor.

The nature of the relief is certainly different under the Hobbs Act than under the FACE Act.

Also, of course, at the time this action was brought, 19 years ago, the FACE Act didn't exist.

Chief Justice Roberts: No, I know.

But in terms of the... we now have specific legislation addressed to the specific context.

And all of the acts that you're complaining of in the original suit are actionable under the FACE Act, aren't they?

Mr. Chemerinsky: That's correct, Your Honor.

Justice Breyer: I'd like you to get to the meaning of the Hobbs Act.

Mr. Chemerinsky: Yes, sir.

Justice Breyer: And I'll try to focus my own thoughts on this by saying two objections to what you're arguing, related, that when they passed the Hobbs Act, it had a section 2, and section 2 said,

"This is an Act that forbids robbery and extortion, all involving interstate commerce. "

"And robbery/extortion involve property. "

Then it had a section 5.

And section 5 said,

"This Act forbids physical violence or threats of violence related to section 2. "

Now, all that happened since then is, there was a recodification.

And the recodification wasn't meant to change anything substantive.

Second and related point Enmons.

For 35 years, working people in this country have thought they had a right to strike, free of the Hobbs Act.

And your interpretation, as the AFL CIO points out, will gut the right to strike.

Now, those are two strong arguments against you, and I'd like to hear your response.

Mr. Chemerinsky: Thank you.

And I'll address them, first and then second.

As to the first point, you correctly quote the 1946 statute, but the 1948 revision was approved by Congress, and it specifically says

"robbery or extortion or attempts so to do. "

comma,

"or physical violence or threats of violence. "

This Court has said, in cases like United States versus Ron Pair, that commas have to be given meaning.

This Court, in many cases, such as FCC versus Pacifica, said, "or" must be given meaning.

There is--

Chief Justice Roberts: Well, we've also said that we don't assume a substantive change from a recodification.

Mr. Chemerinsky: --But, Your Honor... the statute has been approved by Congress.

It is that which is authoritative.

And this Court has said, in other cases, like United States versus Wells, and State Farm versus Tashire, that revisors notes are often erroneous.

This Court has said the cardinal rule of statutory construction is that the plain language must be followed.

Chief Justice Roberts: So, your argument requires us to assume that Congress intended a substantive change when it recodified the Hobbs Act.

Mr. Chemerinsky: That's right.

This... my argument is that the plain language makes clear that Congress did enact a substantive change.

And, indeed, to interpret the law as Petitioner suggests, would render the words about

"physical violence or threats of violence. "

as mere surplusage.

And so, for example, some of the illustrations that were mentioned earlier, one was about the possibility of a planned pride and attempt.

But, in a model penal code, section 5.01, it's clear that any substantial step is sufficient for an attempt that--

Chief Justice Roberts: Who... who's enacted the model penal code?

Mr. Chemerinsky: --I mention the model penal code as just something that's regarded as an authoritative definition with regard to criminal law.

There's many jurisdictions around the country, including at the Federal level, consistently saying a substantial step is sufficient for an attempt.

Another example that was mentioned was the subordinate enforcer.

Would the subordinate enforcer would be likely considered part of a conspiracy or an accomplice?

Justice Ginsburg: Mr. Chemerinsky, the problem that I have, and Justice Breyer expressed, is, we have the revisor's notes that suggest,

"I was just getting rid of extra words. "

"I was making this a tighter provision. "

And there's not anything to indicate that Congress considered any change in the substance of the Act.

Mr. Chemerinsky: Your Honor, there is almost no legislative history for the 1948 revision.

All there is, as you rightly say, is the revisor's notes.

But this Court has said that the revisor's notes are not authoritative.

And this Court has said, on so many occasions, that--

Justice Ginsburg: But here's a... the revisor telling us,

"I did this, and I did this to clean up the Act, to make it less wordy. "

Mr. Chemerinsky: --Yes.

But even if that's regarded as authoritative, this Court has so often said legislative history cannot justify ignoring plain meaning.

And, given the comma and the word "or" and the fact that, otherwise, the words "by physical violence" would have no meaning--

Justice Scalia: Let me--

Mr. Chemerinsky: --that's the plain meaning.

Justice Scalia: --let me talk--

Justice Souter: Well--

Justice Scalia: --about the comma.

I don't... I don't... I don't understand your argument on that point.

I mean, it says,

"Whoever, in any way or degree, obstructs, delays, or affects commerce or the movement or any article or commodity in commerce by robbery or extortion or attempts or conspires to do so. "

comma... that's the comma you're talking about?

Mr. Chemerinsky: Yes.

Justice Scalia: "# or threatens physical violence to any person or property. "

but it continues,

"in furtherance of a plan or purpose to do anything in violation of this section. "

Now, the only thing that this section has, prior to that statement, said to be a violation is obstructing/delaying by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: No, Your Honor.

Two points here.

First, it says "a plan".

It's clear, there is... it's a plan to obstruct, interfere, or affect commerce.

The others, Your Honor, you quickly skipped over--

Justice Souter: --No, but--

Justice Scalia: "Plan to do anything in violation of this section. "

which is not just obstructing commerce, but obstructing it by robbery, extortion, or attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: --No, Your Honor.

I think that does deprive the comma or the word "or" meaning.

And, in fact, it deprives the title of meaning, because the title here can be used when the title makes clear that it's about violence to obstruct interstate commerce.

I'd also point out some words--

Justice Breyer: But that's a jurisdictional hook, isn't it?

When you see something in a criminal statute that forbids "affecting commerce by", that means that Congress wants to prevent the conduct that will follow the words "by", and it needs a jurisdictional hook, so it puts in "affecting commerce".

That's how I've always understood the Federal criminal code.

Am I--

Mr. Chemerinsky: --Yes.

Justice Breyer: --wrong in that?

Mr. Chemerinsky: Yes, Your Honor.

Here, what it's saying is that Congress is prohibiting

"plans to obstruct commerce by robbery or extortion or physical violence or threats of violence. "

And, Justice Scalia, when you read the statute to me, some of the words that were skipped over quickly were the words "so to do".

Notice it says

"with regard to robbery or extortion or attempts to do so. "

comma.

If they meant violence and physical violence to only refer to extortion or robbery, as they did with "attempt", then "so to do" could have been put into that clause, as well.

Justice Scalia: What is... what meaning do you give to the phrase

"in furtherance of a plan or purpose to do anything in violation of this section? "

Under your interpretation, you could just drop that... drop that phrase completely.

Mr. Chemerinsky: Not at all, because it makes clear that Congress didn't mean, here, to criminalize every act of violence that occurs.

It has to be, in order to be actionable, a

"plan of physical violence to obstruct interstate commerce. "

That's why this doesn't apply--

Justice Scalia: But that's not a violation of the section.

1951.

Mr. Chemerinsky: --No, Your Honor.

What is a violation of 1951--

Justice Scalia: --is obstructing it by robbery or by extortion or by attempt or conspiracy to robbery or extortion.

Mr. Chemerinsky: --I disagree, because I think then it does reduce the words

"physical violence or threats of physical violence. "

to mere surplusage.

Justice O'Connor: Well, no, because the--

Justice Souter: --Well, what do you say to the response--

Justice O'Connor: --the counsel for the Government explained that if, in the course of committing a robbery, some bystander is physically injured, it's covered.

Mr. Chemerinsky: No, Your--

Justice O'Connor: I mean, that's understandable, isn't it?

Mr. Chemerinsky: --No, Your Honor.

The reason is, if somebody is injured in the course of a robbery, that's already punished as part of the robbery.

In fact, the Federal sentencing guidelines make clear that harms that are caused while committing a crime are punished as a part of that crime.

You--

Justice Scalia: If you're--

Mr. Chemerinsky: --don't need to--

Justice Scalia: --convicted--

Mr. Chemerinsky: --include that language.

Justice Scalia: --of the crime, but you cannot be indicted as a separate crime.

This makes it a separate offense.

Mr. Chemerinsky: But, Your Honor--

Justice Scalia: You're saying we... you can use it to aggravate the punishment for some other offense, but this does... this does something quite beyond that.

It says it is a separate offense.

Mr. Chemerinsky: --But, Your Honor, for every criminal law, injuries that are committed by those who are engaged in the criminal activity are punished as a part of that criminal act.

Now, Justice Breyer, your second--

Justice Souter: --Well, you say they are punished as a part of the act, but Justice Scalia's point is still true, it only goes to punishment.

The way this is written, it may be charged as a separate offense.

Mr. Chemerinsky: --But, Your Honor, there would be no need to charge a separate offense.

If you look at 1951(b)--

Justice Souter: Well, I... I mean, one is... I'm attempted to say, "Well, tell Congress that".

If they want to create a separate offense, they can do it.

Mr. Chemerinsky: --No, Your Honor.

If you look at section 1951(b), where it defines "robbery" and "extortion", it already includes "violence" in the definition of "robbery" and "extortion".

There would be no need for Congress to separately--

Justice Souter: But isn't the reasonable reading of that,

"violence in the course of achieving... for the purpose of achieving the object in question. "

as opposed to, in effect, a "by blow against a bystander"?

Mr. Chemerinsky: --No, Your Honor, I don't think so, since the statute defines 1951(b), specifically to include acts of violence, then all the things we're talking about after the crime would already be part of what's prohibited by the statute.

Justice Breyer: Mr.--

Mr. Chemerinsky: It could already be charged--

Justice Breyer: --I want to give you a chance, because you're quite right in thinking that I'm moved, in large part... or worried, in large part... not about this language, but about the change in Federal criminal law.

And the change in Federal criminal law, if you're right, way beyond this case, would transform virtually every threat of violence made anywhere in the United States into a serious Federal crime.

At the least, it would... and make a major change in threats of violence on the picket line.

And those are two aspects of the same thing.

And I'm worried about the upsetting of expectations way outside the context of this case and making a major change in Federal labor law, for example.

Mr. Chemerinsky: --Let me start labor law and then go more generally.

Section 1951(c) has a specific provision that makes clear that the Hobbs Act was not meant to change the protection of labor unions.

And, in fact, every one of the statutory references in 1951(c) is to a statute protecting labor unions.

Enmons specifically says--

Justice Breyer: What does it... 1951(c) says what?

Mr. Chemerinsky: --It lists... it says

"nothing in this statute is meant to alter the protections of. "

and then it lists a whole number of statutes, and those are all statutes that protect labor unions.

Justice Breyer: Yeah, but I... then perhaps I... that's an old statute, 1951(c), isn't it?

Is it something brand new?

Mr. Chemerinsky: Well, this is the Hobbs Act.

Justice Breyer: Yeah.

Mr. Chemerinsky: Section 3--

Justice Breyer: All right.

What is it--

Mr. Chemerinsky: --of the Hobbs Act.

Justice Breyer: --Well, the case that interpreted the Hobbs Act, which is Enmons--

Mr. Chemerinsky: Right.

Justice Breyer: --seems to rely, for the labor union exemption, on the fact that a threat of violence in effort to obtain legitimate wages is not within the Act.

But if we read "legitimate wages" out of the Act, then I guess we would be left with "the threat of violence".

Mr. Chemerinsky: No, Your Honor.

And the reason is, Enmons says there's a special legislative history of the Hobbs Act specifically about labor.

And Enmons concluded that if the violence is part of a strike to pursue lawful union activities, it is not actionable under the Hobbs Act.

Nothing that this Court would decide here would change that specific protection of unions, one that's codified in the statute.

As to your former question, nor would ruling in favor of Respondents here change the criminal laws you suggest.

The statute would only apply to a plan to obstruct interstate commerce by physical violence or threats of violence.

Your Honor, this is an interpretation--

Justice Breyer: No, the... it's not a... that's wrong.

It says "affect commerce".

Mr. Chemerinsky: --Right.

Justice Breyer: And, therefore, we have the instance of any threat of violence that affects commerce becomes a Federal crime subject to 20 years of imprisonment.

And, of course, in today's world, as you know, I believe almost everything affects commerce.

And if I'm even close to being right, this is a major incursion of Federal law, serious criminal Federal law, into what could be fairly minor matters of State criminal law.

Mr. Chemerinsky: No, Your Honor, because of the importance of the word "plan".

And this goes to my answer to Justice Scalia earlier.

The fact that it has to be a plan to obstruct or affect interstate commerce is an important limitation here.

And it's key to remember that this is the position that the United States Government took for at least 25 years... from the Franks case, in 1974, to the Milton case, in the Fourth Circuit in 1998, the Yankowski case, in 1999... and it hasn't had those effects.

But if it does, Your Honor, then the appropriate solution is for Congress to change the statute, but not for this Court to ignore the plain meaning of the law.

The final issue that was presented concerns the RICO statute.

Here, section 1964(a) clearly authorizes courts to have jurisdiction to issue injunctions.

Unlike the Sherman Act provision that only authorized Government to seek injunctive relief, section 1964(a) allows Federal courts of jurisdiction, in any instance.

This Court has said, in many instances, as Chief Justice Roberts pointed out, such as Franklin versus Gwinnett County, that when Federal courts have jurisdiction, they retain equitable power unless Congress expressly stripped that authority.

So--

Chief Justice Roberts: Well, your friend's answer was that that was an implied right of action case; and, therefore, the remedies had not been spelled out; and so, you assume the broader remedies.

What's wrong with that answer?

Mr. Chemerinsky: --No, Your Honor, because this Court has said, in any instance, Federal courts have equitable power unless Congress has expressly stripped it of that power.

United States versus Umansky would be an example where this Court said that, as well as the language from Franklin versus Gwinnett County.

And that's especially true here, where Congress, in the RICO statute, specifically said that it should be broadly construed.

This Court, in Sedima versus Imrex, said especially as to the remedial provision, section 1964, this should be broad construction.

Justice Ginsburg: As you read it, can a private party get a preliminary injunction?

Mr. Chemerinsky: No, Your Honor, in terms of the Government specifically authorized by 1964(b) to get a preliminary injunction.

And the reason for that is, generally the Government can't get injunctions to stop criminal activity.

1964(b) was added for that.

But I'd say 1964(a), to go to your specific question, would authorize anyone to be able to go to the Federal court to use any of the Federal court's inherent powers.

Justice Ginsburg: So, a private party could get an... not only permanent, but preliminary--

Mr. Chemerinsky: Yes, Your Honor.

Justice Ginsburg: --injunction.

Mr. Chemerinsky: Yes.

1964(b) was added because of the traditional common law rule that the Government generally can't get such injunctions.

Our position is simple.

We believe that the Hobbs Act was changed precisely to deal with the situations where there might be a radical animal activist group that might be blowing up restaurants that serve meat, or clothing stores, or where there might be situations where racists were blowing up businesses owned by blacks or Jews.

That's what the Hobbs Act does.

And the RICO statute provides, as Congress intended, a broad remedial scheme.

Justice Scalia: Mr. Chemerinsky, I... you said earlier that our... that we "reversed and remanded".

That was not in our opinion, though, as it sometimes is,

"Therefore, you know, the case is remanded. "

It doesn't say that.

Our opinion here just says "reversed".

Mr. Chemerinsky: Right.

But, Your Honor, this case--

Justice Scalia: It just says--

Mr. Chemerinsky: --obviously was sent back--

Justice Scalia: --"# reversed".

Mr. Chemerinsky: --to the Seventh Circuit.

And the Seventh Circuit then had to interpret what this Court decided.

And--

Justice Scalia: I see.

And they interpreted "reversed" to mean "remanded".

Mr. Chemerinsky: --Because this Court had not considered--

Justice Scalia: I see.

Mr. Chemerinsky: --the four acts--

Justice Scalia: I see.

Mr. Chemerinsky: --of violence and threats of violence.

Justice Scalia: So, that enabled them to say that what we meant was not "reversed", but "reversed and remanded".

Mr. Chemerinsky: What this... what the Seventh Circuit did was look at this Court's opinion and see that the statement of the issues, on page 397--

Justice Scalia: They didn't look at the last line of our opinion, which said "reversed".

Mr. Chemerinsky: --But, Your Honor, that would then assume that this Court decided an issue about the meaning of the Hobbs Act that was never presented in the cert petitions, never briefed, never addressed in the opinion.

Justice Ginsburg: They made the assumption that this Court has an obligation to reason why, and there was no reason why given as to those four counts.

Mr. Chemerinsky: That's right.

No discussion whatsoever, Your Honor.

Justice Scalia: It's a broad principle.

Whenever a Court of Appeals thinks that we haven't really resolved all the issues in the case, they can ignore our order that says "reversed".

Mr. Chemerinsky: Of course not, Your Honor.

What the Seventh Circuit had to decide was, What about the four counts of violence or threats of violence that were found by the jury?

Since they weren't ever discussed, the Court of Appeals did exactly the right thing, sent it back to the District Court to decide whether an injunction is still appropriate; and, if so, what the Hobbs Act means.

Thank you.

Chief Justice Roberts: Well, Congress never discussed the change in the Hobbs Act that you're proposing, in 1948.

[Laughter]

Mr. Chemerinsky: That's true.

But it's unusual that, in 1948, Congress actually passed that statute.

And so, that's binding.

Here, the Seventh Circuit--

Justice Stevens: We also actually entered a mandate, too.

[Laughter]

Mr. Chemerinsky: --Yes, that's true.

Thank you very much.

Rebuttal of Alan Edward Untereiner

Chief Justice Roberts: Thank you, Mr. Chemerinsky.

Mr. Untereiner, you have 3 minutes remaining.

Mr. Untereiner: Thank you, Mr. Chief Justice.

I just want to make a few very quick points.

First, I heard Mr. Chemerinsky say that the third clause was unnecessary in the Hobbs Act, because robbery and extortion necessarily involve acts or threats of violence.

I just would like to point out that the Hobbs Act also covers official extortion, which does not require acts or threats of violence.

Secondly, on the Enmons point that Justice Breyer was asking about, you're quite right, Justice Breyer, that to accept the other side's position would effectively overrule Enmons.

Enmons did not rely, in any way, on section 1951(c), had nothing to do with the Court's analysis.

If you look at section 1951(c), which is reprinted in the Scheidler blue brief at page 2(a), you'll see that it just refers to some labor statutes.

It says that the Hobbs Act is not meant to repeal, modify, or affect those laws.

But those laws don't protect violent conduct, so that's a red herring.

And, number three, I'd just like to point out that in this Court's last decision in this case, the Court made clear that coercion is not covered by the Hobbs Act.

But under the Respondent's reading, some acts of coercion would, in fact, be covered by the Hobbs Act.

Finally, we'd just like to reiterate our request that, if the Court rules in our favor, it make very clear, in remanding the case, that judgment should be entered in favor of Petitioners.

Thank you.

Chief Justice Roberts: Thank you, Counsel.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Gonzales v. Oregon - Oral Argument

Fri, 09 Jan 2009 14:48:58 +0000

Case:

Gonzales v. Oregon

Media File:

04-623_20051005-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Paul D. Clement

Chief Justice Roberts: The Court will now hear argument in Gonzales v. Oregon.

General Clement.

Mr. Clement: Thank you, Mr. Chief Justice, and may it please the Court--

Before Oregon became the first State to authorize assisted suicide, the prescription of federally controlled substances to facilitate suicide generally violated State law and also violated Federal law.

Respondents contend that Oregon's decision to remove the Statelaw consequences from that conduct also operated to remove the Federallaw consequences.

Justice Stevens: May I ask, what Federal law does it violate?

Mr. Clement: It violated the Controlled Substances Act.

And the D.A. had taken the position, before Oregon acted, for example, that the fact that a doctor prescribed controlled substances for purposes of a suicide was a basis for revoking his license.

Justice O'Connor: Well, now, would that be true also for any doctor who provided the substances to furnish an execution of a convicted death penalty convict?

Mr. Clement: No, Justice O'Connor, the death penalty situation, lethal injection, is different, for a number of reasons.

Of course, the D.A. has long taken a position of nonenforcement in that context, which would be protected by this Court's decision in Heckler against Cheney.

Justice O'Connor: But, otherwise, it would be the same reasoning--

Mr. Clement: I don't think it would, Justice O'Connor, at least not since 1994, because in 1994 Congress passed a statute that I think is best read as ratifying the practice of lethal injection.

This is 18 U.S.C. 3596.

And that statute authorizes the Federal Government to use the method of execution in the State of the sentencing court.

And at the time that was passed, in 1994, the overwhelming majority... something like 25 of the 38 States... had already used lethal injection.

So, I would read that as--

Justice O'Connor: --But would it be open--

Mr. Clement: --a ratification--

Justice O'Connor: --to the Attorney General to pass a regulation like this one, and all of a sudden apply it... some new Attorney General, who had a very different view of the death penalty?

Mr. Clement: --No, I don't think so, Justice O'Connor, and I think the reason is, at a minimum, 18 U.S.C. 3596, because I think that would now stand as an obstacle to that type of regulatory impression--

Justice Souter: Does the--

Justice O'Connor: Well, not if it just refers back to the States, would it?

Mr. Clement: --No, but this is a provision that dictates how the Federal Government shall do its executions.

And I think, at that time, in 1994, it effectively ratified the practice of using lethal injection.

I--

Justice Souter: --Does the statute... does the Federal statute specifically authorize doctors to do this?

Or does it simply say that convicts may be executed by lethal injection?

Mr. Clement: --Well, the statute itself says that the Federal Government shall use the method in the State in which the sentencing court sits, the Federal sentencing court.

Justice Souter: No, but the method may simply be lethal injection.

And, going back to Justice O'Connor's question, it might still be the case that, on the theory the Government is advancing this morning, it would be unlawful for a doctor to engage in that, because that was, in fact, not within the limits of the practice of medicine, the doctor was using a controlled substance for something outside the practice of medicine, and hence, it would be illegal.

Mr. Clement: And again, Justice Souter, I think the best reading is, that is now foreclosed... that interpretation would be foreclosed by Congress's action in 1994.

There are also some technical differences--

Justice Souter: But I take it Congress did not refer specifically to... or did not include a specific authorization of doctors, so that we'd have to do a little construction to get to your point.

Mr. Clement: --I think we would have to do a little construction, in fairness, but I do think... I mean, and there also are some differences, because, for example, as I understand the practice in most States, doctors actually aren't exactly involved in the specific process of administering the lethal injection.

There's also a technical difference, which is, with respect to lethal injection, it's not the federally controlled substance which is the lethal agent.

It's just that there's a federally controlled substance that's used to administer... to relieve pain in conjunction with a different injection that's not... that does not involve a federally controlled substance.

And that's actually the lethal agent.

Here, of course, it's--

Justice Breyer: In your view, were it not for the statute, the Federal statute, your view of the Attorney General's authority is... leaving that statute aside, if it weren't there... the Attorney General, should we have an Attorney General who is opposed to the death penalty, could, in fact, regulate or stop Federal... State death penalties, through this same mechanism, by saying that no physician can be registered insofar as he engages in that.

Mr. Clement: --Justice Breyer, I haven't thoroughly considered the issue, precisely because I do think the '94 statute stands as an obstacle.

It may be that some of the differences in the way that the death penalty is administered, the fact that doctors aren't directly involved--

Justice Scalia: At most, it--

Mr. Clement: --would allow for--

Justice Scalia: --at most, it would allow him to prosecute, or to move for the discertification of doctors who engage in that practice.

And if the State chooses to do it without doctors, it would be okay.

Mr. Clement: --I think that's right.

As I say, I think some of the technical ways in which the penalty is administered could make a difference.

Justice Breyer: Well, what we're getting... at least what I'm getting at was this is, I would probably have read the statute to say that the drug statute, which is trying to stop drug addiction and heroin and... has nothing to do with the death penalty.

And I would think that the argument on the other side is that the statute has nothing to do with assisted suicide.

Congress didn't think about the death penalty, and it didn't think about assisted suicide.

It's rather like the tobacco case, except a fortiori.

Now, what's your response to that?

Mr. Clement: Well, several points, Justice Breyer.

I think that, first of all, I would say that Congress did focus on suicide, if not physician assisted suicide, and I think that's an important distinction that I'd like to come back to.

But I actually think the comparison to the tobacco case is quite instructive, because there what you had is a statute in which something seemed like it might come within the plain terms of the FDCA, and yet if you took that literally, it would run smack into another statutory scheme.

And here, there is no other statutory scheme.

To the contrary, the most natural reading of the Controlled Substances Act, I would say... and I'll address it in a minute... is that this falls within the authority of the Attorney General.

And if you look to any alternative congressional indication of intent on this topic, the only thing you would find is the Assisted Suicide Funding Restriction Act of 1997, which continues a Federal policy against assisted suicide.

Justice Ginsburg: May I comment--

Mr. Clement: So, in that sense, I think it's very different than the Brown and Williamson case.

Now, taking, though--

Justice Ginsburg: --May I--

Mr. Clement: --as to what Congress--

Justice Ginsburg: --may I ask you about the position this Court took in Glucksberg?

That is, everyone on the Court in that case seemed to assume that physician assisted suicide was a matter for the State, and the Government, at that time, said,

"State legislatures undoubtedly have the authority to create the kind of exception to assisted suicide fashioned by the court of appeals. "

"There is every reason to believe that State legislatures will address the urgent issues involved in this case in a fair and impartial way. "

And then the Government added that,

"There is no indication that the political processes are malfunctioning in this area. "

That was a position presented to this Court in the Glucksberg case by the Government.

Now, you are rejecting that position.

Mr. Clement: --With respect, Justice Ginsburg, I don't think so.

I... we stand by the brief in Glucksberg.

Now, obviously in the Glucksberg case, the Federal law that everybody was focused on... and, in fairness, the United States was focused on... was the Federal Constitution.

And so, that's one important difference.

Another important difference... and I think this is an important point... is that the Federal regulation here, the interpretation of the Attorney General, does not purport to foreclose the issue of assisted suicide--

Justice Souter: Well, they say--

Mr. Clement: --which is--

Justice Souter: --that, in practical terms, that is exactly what it does, because the only way they can administer their law sensibly is by using these kinds of drugs, scheduled drugs.

Mr. Clement: --Well, Justice Souter, we don't have a factual record on that question.

I think it's not clear that that's the case, because, I mean, proponents of physician assisted suicide have identified alternative methods.

Perhaps the most notorious proponent of physician assisted suicide, Dr. Kevorkian, operated without a federal controlled substance license for the last six years before his conviction--

Justice Souter: Well, did he use--

Mr. Clement: --at the time--

Justice Souter: --did he use a controlled substance?

Mr. Clement: --He did not.

He did not, which is why he could do that.

So, it just goes to prove that physician assisted suicide and the use of federally controlled substances for physician assisted suicide are not coextensive.

Justice Ginsburg: But we're told that the... those methods are less gentle to the patient, the methods that the State of Oregon has authorized its physicians to prescribe.

We are told, at least in some of the briefs, that, from the patient's point of view, it's much less upsetting.

Mr. Clement: Justice Ginsburg, we operate without a factual record on that point.

In doing some outside reading, it seems that some of the other methods are actually disapproved, not because they're less... more painful, but because it's more obvious that it's a suicide, in certain cases, and the administration of scheduled drugs sort of blurs that line.

Justice Stevens: General Clement--

Mr. Clement: But I guess my point would be, even if we take it as true that controlled substances are the most efficient way to do this, I take it as a given that if Oregon doctors decided that a schedule 1 substance was the most effective way to administer a lethal overdose--

Justice Ginsburg: But Congress--

Mr. Clement: --after this Court's--

Justice Ginsburg: --Congress spoke--

Mr. Clement: --decision in Raich--

Justice Ginsburg: --Congress spoke about section... schedule 1 drugs, and that's what's lacking here.

Congress says schedule 1 drugs, those are no, never; schedule 2 okay on a doctor's prescription.

Mr. Clement: --I agree there is that difference between schedule 1 and schedule 2 substances.

Now, I think that brings us to the Attorney General's regulation, which is a longstanding regulation.

Justice Stevens: --General Clement, before you go there, I want to question you about your distinction between Dr. Kevorkian and a doctor who uses controlled substances.

Why could not the Attorney General treat Dr. Kevorkian's conduct as conduct that may threaten the public health and safety, and seek his... cancellation of his license?

Mr. Clement: Justice Stevens, I don't think he could.

First of all, I think it's clear that that isn't the authority that's invoked here.

And the Attorney General in the--

Justice Stevens: Well, he--

Mr. Clement: --OLC opinion are patently--

Justice Stevens: --he can rely--

Mr. Clement: --clear on that.

Justice Stevens: --on things like prior convictions, other things unrelated to a specific transaction.

And if he thinks that assisted suicide is contrary conduct that threatens the public interest, health and safety, I don't know why that wouldn't apply to Dr. Kevorkian, as well as somebody using controlled substances.

Mr. Clement: Well, Justice Stevens, the reason I would say that it wouldn't is, I think you have to read this regulation against a backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substances.

Now, there have been a lot of statements and a lot of court opinions during that 90 years--

Justice Stevens: But the Attorney General's directive, if I remember it, does not identify any particular controlled substance.

It just identifies a particular kind of conduct by the doctor.

Mr. Clement: --The... I'm not sure if you're referring to the statute or the regulation.

I would say it this way, which is to say--

Justice Stevens: Neither one.

Neither one is identifying which schedule 2 or schedule 3 substance may not be used.

Mr. Clement: --I think that's fair, Justice Stevens.

I don't take issue with that.

And I think you're right to say that the statutory grant of authority to the Attorney General is quite broad.

He's supposed to make judgments in the public interest about public health and safety.

The point I was trying to make is, I would read all of that against the backdrop that for 90 years the Federal Government has been involved in the regulation of controlled substance.

And we all know that that is going to have an incidental effect on State regulation--

Justice Kennedy: Well, for me--

Mr. Clement: --of medicine.

Justice Kennedy: --for me, the case turns on the statute.

And it's a hard case.

And it seems to me that your answer to Justice Stevens would be to say that the Justice Department has found this practice to be an abuse of the drug.

But then, my question... and if... if you had, in fact, given that answer, my question--

[Laughter]

--my question would then be, Isn't that an odd statutory scheme, where the Attorney General can find it to be an abuse of the use of the drug if the State of Oregon has specifically told its doctors, under special procedures in defined circumstances, that they can administer it?

Mr. Clement: Well, I don't think that would be an odd regime. I think if, for example, Oregon made a radically different judgment and said that in Oregon it was going to be permissible to have treatment or detoxification programs that involve the administration of radically larger quantities of controlled substances than had been recognized in any other State, I think, under the authority of cases like Moore, the Attorney General can make a judgment... now, that's not a legitimate medical purpose, that's--

Justice Kennedy: Well, that's--

Mr. Clement: --an abuse.

Justice Kennedy: --that's... that's a... the slipper slope argument that I wanted to explore a bit.

If we do rule against you, and for the State of Oregon, on the statute, you do think that there will be some other serious consequence which will hinder the Department of Justice in an orderly implementation of this statute, particularly under the abuse formulation?

Mr. Clement: I think there could be, Justice Kennedy.

I don't want to overstate it, in the sense that... one of the reasons you don't see that much of a conflict between Federal and State law in the regulation of controlled substances is because, in the main, the States have adopted uniform controlled substances acts that mirror the Federal Act, and, in most of the instances there, works in the way of cooperative federalism in dealing with this problem.

This Court tends to see the cases... Raich, in this case... where there's a conflict between the State regime and the Federal regime.

And I guess my point is the... in a such a comprehensive Federal regime, if this Court makes clear that State law can overtake the Federal regime, I think it at least creates the potential for there to be a lot of holes in the regime and the possibility, if States take the... take you up on that invitation--

Justice Kennedy: But part--

Mr. Clement: --to really undermine the regime.

Justice Kennedy: --part of the regime referred to under the statute... and it's 801(a) implementing the convention on psychotropic drugs... and there, the implementation incorporates the treaty... but it says that,

"This shall not displace the judgment of the medical community, as determined by the Secretary. "

And it seems to me that that cuts against you in this case.

Mr. Clement: Well, Justice Kennedy, it is perfectly true that there are places in the statute where medical or scientific decisions are expressly given to the Secretary of Health and Human Services and not the Attorney General, but it is equally true that there are places in the Controlled Substances Act where medical determinations or public health determinations are given expressly to the Attorney General and not the Secretary of Health and Human Services.

And one of the places, of course, that's true is Sections 823 and 824 of Title 1... Title 21... which, of course, are the provisions about the registration and revocation of registrants.

And Congress--

Justice O'Connor: Well, certainly the practice of medicine by physicians is an area traditionally regulated by the States, is it not?

Mr. Clement: --It absolutely is, Justice O'Connor, but--

Justice O'Connor: And there is nothing express in the statute suggesting that it's designed to put in the hands of the Federal Government or the Attorney General the regulation of the practice of medicine, is there?

Mr. Clement: --Justice O'Connor, there's nothing that says we want to take over the regulation of medicine, but it's crystal clear--

Justice O'Connor: Well, and there were two attempts, were there not, to get legislation passed to do this expressly in Congress, and they failed?

Mr. Clement: --Well, yes, but I think this Court is always hesitant to draw inferences from--

Justice O'Connor: Yes.

Mr. Clement: --failed legislative efforts.

And if--

Justice O'Connor: Yes.

Mr. Clement: --the Attorney General had not adopted this interpretation, it may be that this Congress would have passed those initiatives--

Justice O'Connor: And a prior Attorney General had a different interpretation.

Mr. Clement: --And the prior administer of the DEA before that had our position.

So, this is an area where I think, you know, there are different approaches to this.

What I wanted to make clear, though, is, you're absolutely right that the regulation of medicine is... this Court has observed... is traditionally left to the States.

But that has to be reconciled with the fact that for 90 years the Federal Government has had a prominent role in the regulation of controlled substances.

And it's been clear--

Justice O'Connor: Yeah, but--

Mr. Clement: --since the very--

Justice O'Connor: --are these... are these drugs classified as illegal, for all purposes?

Mr. Clement: --Not for all--

Justice O'Connor: No.

Mr. Clement: --purposes, but they are highly classified, highly controlled substances.

They are the... the substances that are at issue here are the most highly controlled lawful substances.

And I think if you go back to the history of the Harrison Act, it's been clear since the very first prosecutions under the Harrison Narcotics Act of 1914 that the Federal Government's ability to regulate medicine was going to have an incidental effect on the State's ability to regulate medicine.

I mean, States had much more of a laissez attitude towards... laissez faire attitude towards the opium trade, but that was really displaced by the--

Justice O'Connor: Yeah, but it's a--

Mr. Clement: --Harrison Act.

Justice O'Connor: --it's a different thing to regulate by saying,

"No one can prescribe this substance. "

"It's so lethal, we won't let anyone prescribe it at all. "

And it's quite different to say,

"This... if a... if a physician follows the Oregon law, it's a... it's not a legitimate practice of medicine. "

That's a very different approach.

Mr. Clement: Justice O'Connor, I can't tell you there isn't a difference between the treatment of schedule 1 substances--

Justice O'Connor: Yeah.

Mr. Clement: --that are just verboten for all purposes and schedule 2 substances, but the regulation of Federal controlled substances in the Harrison Act has always focused on drugs that have some lawful medical uses but are--

Chief Justice Roberts: What--

Mr. Clement: --also susceptible to abuse.

Chief Justice Roberts: --what is the closest analog you have, outside of the present case, where the Attorney General's enforcement activity has impinged upon what the State has recognized as medical practice?

Mr. Clement: Well, I think I would... I mean, I... I guess I would do two answers to that, Mr.--

Chief Justice.

One, I would point to the fact that, at the genesis of the Harrison Act, it really was displacing State medical judgments about the opium trade.

I would point to two other examples, one under this statute and one other the... under the FDCA.

The idea under the FDCA... the example that comes to mind is the FDA's treatment of Laetrile, that this Court addressed in the Rutherford decision.

In that case, 17 States had made a judgment that Laetrile was... could be available, for prescription use, to treat cancer.

And the FDA, by refusing to approve Laetrile--

Chief Justice Roberts: Well, that's the FDA.

I'm talking about the Attorney General, under this statute.

Mr. Clement: --Well, then I think I would... I mean, I... I'm not sure I can point to a decision by the Attorney General, but I think it's... in the structure of this Act... obviously the schedule 1 treatment of marijuana that this Court had before it in the Raich case, involved a situation where the Act clearly displaced the medical judgments of California and nine other States--

Justice Souter: No, but--

Mr. Clement: --who recognized--

Justice Souter: --that was a clear act of Congress.

I mean, Congress had made that decision, and it was unmistakable.

It seems to me that the problem that you have, with your reference back to the Harrison Act and the 90 years of regulation, is that the 90 years of regulation was regulation for the purpose of stopping drug pushing and drug abuse, in the conventional sense.

And to say that a statute... or a statutory history taken into consideration in determining the scope of this statute, with that kind of a history, can support a view that suddenly the Attorney General of the United States is given, in effect, the sole authority to determine whether any State may or may not authorize assisted suicide, and may do so in a way that any other Attorney General can flip back and forth... as has happened in this case, if Attorney General Reno was wrong... seems to me a kind of argument from history that simply cuts against you, because it leads to a sort of a bizarre result.

I mean, what is your response to that?

Mr. Clement: --Well, Justice Souter, I think you have to look at the regulation of drug abuse and ask, To what end was Congress regulating these substances?

Justice Souter: Well, and I... as I said, it seems to me that your 91 years of history say that the end that Congress had in mind was to stop drug pushing and stop conventional drug abuse.

It didn't have any more... there's no indication that I know of that Congress had assisted suicide in mind, any more than it had the administration of the death penalty in mind.

Mr. Clement: Well, Justice Souter, what I would say is, what Congress had in mind in enacting these substances is, they were concerned about drug abuse, not for its own sake, but for the debilitating effect it has on people's lives, for its tendency to destroy lives.

And I will grant you that Congress, in 1970, did not have before it in its contemplation a State that would make physician assisted suicide lawful.

But that's because it would have been unthinkable at that time.

And what Congress did have clearly in its contemplation is the fact that a clear manifestation of a drug's potential for abuse was the fact that it could lead to suicide and overdoses.

And that's page 35 of the House report, for those that look at legislative history.

And I actually think that's--

Justice Souter: Suicide is a result of the kind of dementia that comes from drug abuse.

That is not suicide under the circumstances that we're talking about within the limits of the Oregon law.

Mr. Clement: --Well, Congress didn't specify, one way or another.

And what I would... I would point you to the House report, because I think it actually is indicative, because when Congress is framing the issue, they first look at the extent of the problem.

And one of the ways they identify the problem as serious is, they point to overdoses that are taking place among teenagers.

And then, in the next section of the report, they look at the question of the consequences of drug abuse.

And what do they point to as--

Justice Stevens: General, then may I just ask this question?

We're focusing on whether congress really authorized this action by the Attorney General.

And in the Raich case, which, of course, was a close case... there were three dissents in the case... the... there was great attention on the fact Congress had considered the interstate market for the product involved, an impact on the market if it was allowed to be sold in... or grown and so forth in California.

But is there any evidence at all that Congress thought that any of these... schedule 2 or 3 substances that are used in assisted suicide situations... that Congress focused on the impact of that use on the interstate market for those drugs?

Mr. Clement: --Well, Justice Stevens, I mean, I... first of all, I would say, as it compared to Raich, I would almost think this is an a fortiori case, as it affects commerce, because, unlike Raich, which, of course, were untraditional noncommercial transactions, the transactions at issue here are standard commercial transactions that are--

Justice Stevens: But are they--

Mr. Clement: --well within--

Justice Stevens: --are they transactions that have any impact on any market, any commercial market, that Congress ever mentioned?

Mr. Clement: --I think they do.

And I sure hope they do, because this is a situation where Congress and the Federal Government pervasively regulates the drug transactions at issue here in a way that even respondents don't object to.

The details of the form that you fill out for the prescription, the fact that it has to be in writing, the regulations specify whether it has to be in pen or pencil... I mean, there's such a pervasive involvement of the Federal Government in the regulation of these controlled substances that I don't think there's any additional commerce clause extension by regulating the purpose for which the prescription is being made.

That's what the DEA did in the context of Marinol, when it was first moved from schedule 1 to schedule 2, that... we discuss that in detail on page 30 of our brief.

And I think that kind of regulation, although it's not a common feature of the DEA in its administration of the Controlled Substances Act, is an important one, is a legitimate one.

And I guess what I would say, with respect to Congress's intent, is, it seems to me odd to think that a Congress that was concerned about overdoses, concerned about suicides, would be indifferent or agnostic on the question of using federally controlled substances for the express purpose of inducing a lethal overdose.

Justice Breyer: Why were... you were going to say, at one point... why was Congress concerned about overdoses of narcotics and so forth?

Why?

Mr. Clement: I think they were concerned with it part and parcel of... because, I mean, I think of the things that Congress does when it regulates is, it regulates to protect life, to protect health and safety--

Justice Breyer: But, I mean, there was a reason, wasn't there, that they're worried about people taking narcotics?

Mr. Clement: --I mean, sure--

Justice Breyer: Right.

Mr. Clement: --there are.

Sure they are.

Justice Breyer: Right.

What was the main--

Mr. Clement: And they're worried about the impact--

Justice Breyer: --I would have thought it was narcotics addiction.

Mr. Clement: --Well, I think it is, but, again, I think--

Justice Breyer: All right.

Well, if it is narcotics addiction--

Mr. Clement: --But not solely.

Justice Breyer: --and I would have thought that was it--

Mr. Clement: No, not solely.

Justice Breyer: --All right.

All right.

Again, because you know I'm going to say, What has this got to do with that?

So, why not solely?

[Laughter]

Not solely.

You go ahead.

What else?

Mr. Clement: Not solely.

And, again, I mean, I think, you know, addiction qua addiction was not the concern so much as addiction because of its tendency to debilitate lives--

Justice Breyer: Right.

Mr. Clement: --to destroy lives--

Justice Breyer: Yes.

Yes, but it's through addiction.

And this seems to--

Mr. Clement: --Well, no, I don't think that's right, Justice Breyer.

Justice Breyer: --No?

Mr. Clement: I think there are a number of instances where the abuse that is being... that Congress is concerned with is not solely the addictive abuse.

I mean, to take one example, Congress has recently, as part of the controlled substances regime, regulated GHB, one of these so called "date rape drugs".

And the concern for abuse there is not its addictive quality, but the fact that it can be used in a way that's not medical, that can be very pernicious, and the like.

And so, I think that's just another example of this concept of abuse being much broader than a narrow focus on diversion or a narrow focus on addiction.

Justice Souter: Yeah, but even in your example, the concern of Congress is with the use of the drug to hurt people who do not understand that they're going to be hurt, and don't want to be hurt, and perhaps, in your example, the use of the drug to facilitate the violation of the law, that seems to me worlds away from what we're talking about here.

Mr. Clement: Well, Justice Souter, I would simply say that the Controlled Substances Act, if you look at it, is a very paternalistic piece of legislation.

It's not designed to let people make their own judgments about the health risk.

And if I could reserve the remainder of my time?

Argument of Robert Moorehead Atkinson

Chief Justice Roberts: Thank you, General Clement.

Mr. Atkinson. ON BEHALF OF RESPONDENTS--

Mr. Atkinson: Mr. Chief Justice, and may it please the Court--

Since Gibbons versus Ogden, at the very latest, this Court has recognized that, in the system of dual sovereignty created by American federalism--

Justice O'Connor: Would you speak up just a little, please?

Mr. Atkinson: --I'm sorry, Your Honor, I will.

Justice Scalia: Maybe elevate your... the microphone.

Justice O'Connor: Maybe you could raise the podium.

Justice Scalia: You're too tall. [Laughter]

Mr. Atkinson: I'll work on that, Your Honor.

Justice Ginsburg: Raise it up.

Justice O'Connor: No, that... the crank will raise it, if you... no, the other way around.

Thank you.

Mr. Atkinson: Yes, Your Honor.

What the Court said in Gibbons versus Ogden was that health laws of every description were for the States to regulate.

In Glucksberg, this Court--

Chief Justice Roberts: --Well, the relationship between the States and the Federal Government has changed a little since Gibbons versus Ogden.

[Laughter]

Mr. Atkinson: --That's certainly true, Your Honor.

And yet I think if you look both at your opinion in Glucksberg and in the opinion... excuse me... and in the text of the Controlled Substances Act, you will find that this Court has recognized that this specific subject, physician assisted dying, is one that is for the States to regulate.

Chief Justice Roberts: Well, that begs the question... if you had said "this specific subject", the regulation of controlled substances, your answer would have come out the other way, which is kind of what the case is about.

Mr. Atkinson: I agree.

And let me talk, then, about the... why we believe the text of the statute demonstrates that Congress intended to leave the decision about what is, and is not, a legitimate medical practice to the States, as it has always been.

And that's the key question in this case, because the U.S. Attorney General--

Justice Breyer: Yes, because, I mean, wouldn't... suppose that some State said that,

"We think doctors can prescribe, for people who want to take it, morphine for recreational use. "

Mr. Atkinson: --Your Honor, there are a number of limits clear in the Controlled Substances Act.

But taking the hypothetical you've offered, specifically, we think that the answer would have to be that Congress intended to leave the definition of what is a legitimate medical practice to the States.

Justice Breyer: No matter what?

I mean, they have cases and so forth that say,

"Of course a State could go too far. "

"A State might decided it's. "

--just what I said.

And you're going to say your case turns or falls... you win or lose, depending on whether I accept that a State could not stop a doctor from becoming, in effect, a conduit to a group of drug dealers by saying,

"I think recreational use is part of my medical practice? "

That would be up to the State?

Mr. Atkinson: Certainly, the State could stop it, yes.

The question--

Justice Breyer: No.

Justice Scalia: No, it didn't "stop it"--

Mr. Atkinson: --But that--

Justice Scalia: --but could the State allow it?

Mr. Atkinson: --Yes.

Justice Scalia: And if the State allowed it, the Federal Government would have to allow the drugs to be used for that purpose--

Mr. Atkinson: Well--

Justice Scalia: --you're saying.

Mr. Atkinson: --there are a number of limits in the text of the Act itself.

There are limits in other Federal statutes not contained in the CSA.

There is also the political limits on irresponsible lawmaking at both the State and the Federal level that have served us well for almost 200 years.

Justice Scalia: I would have thought that at the time this legislation was enacted, it would have been as unthinkable for a State to allow drugs to be used... to be prescribed by a doctor to kill a patient as it would be for drugs to be subscribed by a doctor to make the patient feel better.

Mr. Atkinson: Your Honor, many drugs--

Justice Scalia: I mean, I think that assisted suicide would have been as unthinkable at the time this was enacted as prescribing cocaine just for recreational use.

Mr. Atkinson: --We don't suggest that Congress had physician assisted dying specifically in mind at the time that it enacted the Controlled Substances Act.

What we do think that Congress had in mind was the 200-year history of State regulation of medicine, of the practice of medicine, and what were, and were not, legitimate medical purposes.

Justice Ginsburg: But you agree... you... in answer to Justice Breyer's question, he mentioned a drug that was a schedule 1 drug, morphine.

Or maybe--

Mr. Atkinson: I'm sorry--

Justice Ginsburg: --perhaps it isn't--

Mr. Atkinson: --I think it is a schedule 2 drug, Your Honor.

Justice Ginsburg: --It's schedule 2 drug.

Mr. Atkinson: Yes.

We certainly don't suggest that a State could authorize the use of a schedule 1 drug for any purpose at all.

Justice Ginsburg: But are you saying that if the doctor is using it, saying,

"In my medical judgment, this makes people happy; and, therefore, I'm going to prescribe it. "

that a State could permit that?

Wouldn't the Moore case rule that out?

Mr. Atkinson: I don't think so, Your Honor.

There aren't... there is no history of the U.S. Attorney General prosecuting any doctor at any time in the... in the... since before Moore--

Justice Ginsburg: But I thought the idea of Moore was, if you're using this, the doctor is prescribing the drug as a pusher.

Mr. Atkinson: --That's correct.

And we have no... we have--

Chief Justice Roberts: Well, but let's... but the supposition is that the State legal judgment is that that's the wrong characterization, that it's legitimate medical practice to make patients feel better, and morphine does that; and so, the State can allow them to prescribe morphine to make people feel better.

And I understand your position to be that that would be permissible?

Mr. Atkinson: --Yes.

Chief Justice Roberts: That could not... that's not prohibited under the Controlled--

Mr. Atkinson: That is--

Chief Justice Roberts: --Substances Act.

Mr. Atkinson: --that is not prohibited under the Controlled Substances Act if the doctor was acting consistent with the specific terms of the Act and the specific terms of the State statutes.

Justice O'Connor: And you say the Attorney General of the United States could not deem it to be drug abuse under the Act if a State allowed that for recreational use or to cure depression or... How about steroids for bodybuilders +/?

and decided that's perfectly okay.

Now, can the Attorney General find that that's drug abuse?

Mr. Atkinson: As the term U.S. Attorney General is authorized to make, and required to make.

It is not otherwise generally used.

What the Controlled Substance--

Justice O'Connor: Well, I don't know that I understand your answer.

Could the Attorney General deem the authorization... purported authorization by a physician to use morphine to help with depression, or steroids for bodybuilding... can that Attorney General say, under the Act, that's drug abuse?

Mr. Atkinson: --Not if it is permitted by... and regulated by State law.

Justice Breyer: Suppose I disagreed with you about that, then would you lose the case?

Mr. Atkinson: I would certainly lose ground, Your Honor.

[Laughter]

Justice Breyer: I'm asking, if I disagreed with you that I thought... we take the facts of Moore, where he's a drug pusher, the doctor, and, for some unknown reason, the State says,

"That's fine, it doesn't violate State law. "

but the Attorney General says,

"Do what you want about State law. "

"I think it violates the Federal law. "

Suppose I think the Attorney General does have the right to do that for... assuming it... assuming it... then what do you say about this case?

Mr. Atkinson: Well, first of all, we don't think, Justice Breyer, that what the U.S. Attorney General is attempting to do here is reasonable within the scope of whatever authority he has.

Moreover, he has not followed the processes and procedures that are specified in the Controlled Substances Act.

But our first position in this case is, he simply lacks the authority to do that.

The Controlled Substances Act reflects, first, in Section 903, the antipreemption provision, which is found in the State's brief, at page 36, that Congress intended not to intrude on State laws that would otherwise be within the authority of the State.

Chief Justice Roberts: What does that do to the effectiveness of regulation under the Controlled Substances Act?

If one State can say it's legal for doctors to prescribe morphine to make people feel better, or to prescribe steroids for bodybuilding, doesn't that undermine the uniformity of the Federal law and make enforcement impossible?

Mr. Atkinson: I don't believe it does, Mr.--

Chief Justice.

In the first instance, we think the U.S. Attorney General's claim of uniformity is overstated.

We think it's clear from the text of the statute that Congress intended to leave the definition of what is, or is not, a legitimate medical practice in the hands--

Chief Justice Roberts: Well, that may or--

Mr. Atkinson: --of the States.

Chief Justice Roberts: --may not be true.

But focus on the particular question.

If you have one State that allows the use of a drug that the Federal Government has determined is illegal, and is illegal everywhere else because other States haven't done it, how is the Federal Government supposed to enforce that prohibition?

Mr. Atkinson: Well, I don't think the Federal Government is supposed to enforce that prohibition if the prohibition... if we're dealing with a schedule 2, 3, or 4 or 5 substance.

Congress has clearly spoken to schedule 1 substances.

Once we move into the other substances, traditionally and has... as has... as been the... as is the case today in every State, physicians, under the regulation of State medical boards, prescribe those medications for purposes other than those for which they're normally prescribed.

Chief Justice Roberts: I'm trying to get at the specific enforcement point.

If you have one State that allows morphine to be used legally for--

Mr. Atkinson: Yes.

Chief Justice Roberts: --recreational purposes, how is the Federal Government supposed to enforce the prohibition on that elsewhere?

Mr. Atkinson: Well, there is no... well, the Congress can prescribe... can enforce it in any State in which it is not authorized by State law.

If the U.S. Attorney General wants to regulate it in a State where it is authorized by State law, he must go to Congress and get a clear statement of authority to do that.

Justice Souter: But are you saying, in response to the Chief Justice's question, that, in fact, Congress, itself, could not explicitly pass a statute that says,

"No State, through its doctors or otherwise, may authorize the use of morphine-- "

Mr. Atkinson: Not at all, Justice Souter.

Justice Souter: --All right.

So, you're not making a--

Mr. Atkinson: No, not--

Justice Souter: --constitutional--

Mr. Atkinson: --at all.

Justice Souter: --argument.

You're sticking to your statutory argument.

Mr. Atkinson: We're sticking to the statutory argument.

Justice Souter: Okay.

Justice Scalia: Which comes down to an argument that "accepted medical practice" means accepted medical practice State by State--

Mr. Atkinson: That's correct.

Justice Scalia: --rather than on some uniform basis. Do you have any other area, regarding the enforcement of this Act, where the drug is allowed, or not allowed, to be used on the basis of divergent views of medical practice by divergent States?

Mr. Atkinson: There are any number of areas in which--

Justice Scalia: Such as?

Mr. Atkinson: --States diverge.

Such as... palliative care, I think, is the most obvious example.

These days, there is a great deal of divergence among the States as to how--

Justice Scalia: In palliative care?

And you think in some States you can... you can prescribe these drugs without violating the Act; whereas, in other States, the same prescription would violate the Act.

Mr. Atkinson: --In some States, a prescription would violate State law; and in other cases, in other States, that same prescription would not.

Justice Scalia: Would it violate the Federal law in those other States?

Mr. Atkinson: It would if the... if the prescription violated the State law, the U.S. Attorney General could take action against the physician.

Justice Scalia: Oh.

So you say that in... with respect to many aspects of this legislation, what's lawful... and what's lawful depends upon the accepted medical practice within the State.

Mr. Atkinson: That's exactly correct, Justice--

Justice Scalia: Does this have to be reflected in the State medical board determinations, or just in what the... what the doctors in that region tend to think is a good idea?

Mr. Atkinson: --Your Honor, what we believe is that what Congress did in enacting the Controlled Substances Act was leave those decisions to the States to enforce according to their traditional methods.

Now, in some cases, that may be by statute; in some cases, the States may discipline doctors for... through a State medical board.

Justice Scalia: Any cases that you can think of where the same prescription has been held okay in one State and not okay in another State?

Mr. Atkinson: Your Honor, we're not aware of any cases in which the U.S. Attorney General has ever attempted to deregister or to prosecute a doctor who was acting in accordance with State law.

We have a history that we're... to... at least since the Controlled Substances Act, in 1970, where the U.S. Attorney General has never attempted to suggest, as he does here, that something that is permissible under State law is, in any sense, a violation--

Justice Stevens: Yes, but the--

Mr. Atkinson: --of the Controlled Substances Act.

Justice Stevens: --statute goes beyond the State law, the five factors, you know, on the... justify the--

Mr. Atkinson: Yes.

Justice Stevens: --revocation.

And some are in compliance with State law, but the fifth factor is,

"such other conduct which may threaten the public health and safety. "

It seems to me that's a clear grant of authority to go beyond State law.

Mr. Atkinson: Justice Stevens, we think that the best reading of the five factors is that they continue to respect State laws.

Certainly, that's what the legislative history, for those of you who would be willing to look at it, of the 1984 amendments reflects.

Congress was not concerned about how States were defining legitimate medical practices.

Congress was concerned about the failure to enforce existing State law.

And that's clearly reflected in the legislative history, some of which is set out in the State's brief, on page 36, in note 16.

But if you look at those five factors, what they are addressed to is individual applicants... that is, individual doctors... not to broad medical purposes.

And what you're seeing here in the Attorney General's claim of authority, for the first time, is rules that are not addressed to controlled substances, per se, but to medical practices, and that is something that the Congress simply never contemplated giving you.

Chief Justice Roberts: Well, what do you do with regulation 1306, which... the one that, of course, talks about "legitimate medical purpose"?

That was promulgated in 1971.

It wasn't directed to the Oregon statute.

And yet it suggests that the Attorney General has the authority to interpret that phrase.

Mr. Atkinson: Well, we think there's... there are two answers to that, Chief... Mr. Chief Justice.

The first is that, in Harris versus Christensen, this Court said that a Federal agent cannot promulgate a new regulation in the guise of interpreting an old one.

Now, in 1971, when that regulation to which you refer was enacted, it was absolutely clear that the U.S. Attorney General could not have deregistered an Oregon doctor who was acting in accordance with State law, because, as this Court pointed out in United States versus Moore, the registration was a matter... was as a matter of right if the... if the physician was in good standing with State medical authorities.

So, what he's attempting to do today, in the guise of interpreting that rule, is to make it mean something entirely different than what it meant when he enacted it.

And I think Christensen versus Harris County says that he simply cannot do that.

Chief Justice Roberts: You had a--

Justice Scalia: The--

Chief Justice Roberts: --second answer?

Mr. Atkinson: Excuse me?

Chief Justice Roberts: I'm sorry.

You had a second answer?

Mr. Atkinson: That's all right.

I'm... I... I'm happy with the first one, at this point.

[Laughter]

Justice Scalia: --Mr. Atkinson, you've spent most of your time talking about the statute and the regulations.

Do you also make the argument that, even if the Government wanted to do this thing, it would be unconstitutional?

Mr. Atkinson: We do, Your Honor.

One of the questions presented in Raich was whether Congress "could" do what it had done.

The question here is... first of all, is whether Congress "did" what it had done.

And our point is not necessarily that it would be unconstitutional, but that it would raise a significant constitutional question, which implicates the clearstatement rule and the constitutional avoidance rule.

Justice Scalia: But why would it raise a significant constitutional question?

I take it that it's none of the Government's business whether people gamble or not.

I take it, it's none of the... the Federal Government... I take it, it's none of the Federal Government's business whether people are allowed to drink at 21 or at 18, innumerable other things, which really are matters that belong to the police power of the States.

But the Federal Government has chosen to regulate those things through the use of its commerce power.

Is the drinking age any more a matter of... or any less a matter of State privilege than suicide?

Mr. Atkinson: No, I wouldn't say that--

Justice Scalia: So, are those... are those entries of the Federal Government into the regulation of drinking age, are they unconstitutional--

Mr. Atkinson: --No, Justice Scalia.

Justice Scalia: --or do they raise serious constitutional questions?

Mr. Atkinson: No, they don't, Justice Scalia.

Justice Scalia: Well, why does this one?

I don't--

Mr. Atkinson: The difference here is simply that there... the amounts, as was suggested earlier, are so minute that there cannot be any significant effect on interstate commerce.

There is not even any evidence in this record that there is a market for the drugs that are used under the Death with Dignity Act, much less if there is an illicit trade.

There's no question here of... as the Court described it in Raich, where you had a $10 billion market of--

Justice Scalia: --Well, if ten States adopted assisted suicide, it might be a different... a different--

Mr. Atkinson: --Once again--

Justice Scalia: --constitutional--

Mr. Atkinson: --Your Honor, in--

Justice Scalia: --question.

Mr. Atkinson: --in Oregon's experience, we have a small number of people, most of whom consume the drug.

The amounts that are left over, even if this law spread nationwide, would not be significant.

Justice Breyer: Would you spend a minute--

Justice Kennedy: The statute gives the Attorney General authority to promulgate regulations for the dispensing of drug... 821... and that seems to me to describe precisely what the Attorney General has done here.

Mr. Atkinson: I can't disagree with that, Justice Kennedy.

The question is, Does he have authority to tell a doctor in a particular State, not by reference to a particular drug that he may not dispense this drug, but that he may not dispense a drug for a specific medical purpose?

And, as I've suggested, this is the first time we've ever seen that happen.

And we think that's because it's inconsistent with the congressional design, which was to leave the subject of what are, and are not, legitimate medical purposes to the States and to... and to have the U.S. Attorney General promulgate rules that deal with things like the... like prescriptions, scheduling of those drugs so that they are on schedule 2 or schedule 3 or perhaps--

Justice Kennedy: Well, it seems to me--

Mr. Atkinson: --schedule 1.

Justice Kennedy: --very odd to have a regulation on dispensing that takes no account of the purpose for which the drug is being used.

Mr. Atkinson: Well, we think it's somewhat odder, frankly, Justice Kennedy, to suggest that Congress intended to authorize a single unelected Federal official to decide, in his sole and apparently unreviewable discretion, that this medical practice, of which he disapproves, may not be--

Justice Kennedy: Well, but I give--

Mr. Atkinson: --followed.

Justice Kennedy: --you a statutory reference, and then you tell me about something else.

Mr. Atkinson: Well, no, I... we agree that he gets to authorize regulations on dispensation... to require, for example, that there be prescriptions before it be dispensed, that physicians shall follow certain rules and regulations before they dispense, and those are the kinds of things on which we agree he has the authority to engage in rulemaking and to... and to promulgate uniform--

Justice Breyer: --I'm sorry, on that, I didn't think that the reg was defining the word "dispense".

I thought the statute defines the word "dispense".

And it's... persons registered by the AG to dispense controlled substances are exempt.

And then you look at who is such a person.

A person who does that is a practitioner.

And who is a practitioner?

A registered practitioner is one who prescribes, a physician registered by the United States to distribute or dispense a controlled substance in the course of professional practice.

And I thought this reg is defining

"in the course of professional practice. "

Am I wrong about that?

I thought it was a reg that says,

"In the course of professional practice, the prescription, to be effective, must be a legitimate medical purpose by an individual practitioner. "

Now, I might be wrong.

How does it work?

Mr. Atkinson: --No, I think that's absolutely right.

But the question... that is a very different question from the question of, Who gets to define, as a matter of policy, what is a "legitimate medical practice"?

Justice Breyer: On the matter of policy, I would... since... if you... if you've said basically what you want to say in your argument, I would appreciate your devoting a minute to an assumption which you don't want to agree with.

But suppose I were to assume that a State is not free, through the device of defining what's good medical practice, to gut the Act... that is, to really make marijuana or something else, like morphine, legal... because they disagree with Congress's basic judgment that it should be illegal.

That could happen.

Mr. Atkinson: It could.

Justice Breyer: Now, suppose I think that the AG does have the power to stop Congress from gutting the Act.

All right?

Now, on that, do I have... if I believe that, on that assumption, do I have to decide this case against you?

Mr. Atkinson: No.

Justice Breyer: And if not, why not?

Mr. Atkinson: There are at least two reasons for that, Justice Breyer.

The first is the commerce clause question, which we believe to be--

Justice Breyer: Suppose, on the commerce clause question, I... on assumption, I don't agree with you, either... then do I have to decide?

[Laughter]

Mr. Atkinson: --I'm starting to be backed into a corner.

[Laughter]

I think... I think the third answer then becomes the procedural answer, Justice Breyer, and that is that what the U.S. Attorney General is doing here violates the rule this Court stated in Christensen versus Harris County, and he is attempting to do, by an administrative rule, what he can only do by notice in comment rulemaking.

Justice Scalia: I would--

Justice Breyer: Far be it from me to suggest an argument that you don't want to make, but, I mean, I've found it different, in life and law, when you pass a rule in a State that guts an Act, from when you pass the rule in a State that doesn't seem to have much to do with the purpose of the Act.

Mr. Atkinson: Well, I certainly would not disagree with that in--

Justice Scalia: --Yes, you would.

I think--

[Laughter] It seems to me... it seems to me that you... that you cannot accept the premise that it guts the Act, if you come in here with the proposition, which you do, that what the Act says is whatever is accepted medical practice within the State is okay.

That's your principal point.

Mr. Atkinson: --That is correct.

Justice Scalia: But the Act does not refer to any overall Federal accepted medical practice.

It refers to accepted medical practice, State by State.

And, therefore, it in no way guts the Act if a State wants to let these drugs be used for, you know, make people happy purposes.

I don't see how you can accept the premise.

Mr. Atkinson: I wasn't anxious to accept it, Justice Scalia, but I--

[Laughter]

--I was... I thought I was being told to.

Let me--

[Laughter]

--but let me... let me offer, if I can... we--

Justice Ginsburg: May I ask you, in... Mr. Atkinson, in response to the question you were just asked, you said there were procedural problems, no notice in comment.

So, that's a "how" it's done.

Mr. Atkinson: --That's--

Justice Ginsburg: How about the "who"?

Is this something... how does it work under the Controlled Substance Act?

What authority does the Department of HHS have?

What is the division of authority between those two under the Act?

The Attorney General, on the one hand, and the Department of Health and Human Services, and including the FDA, on the other.

Mr. Atkinson: --Justice Ginsburg, I can't answer that question in specific respect to this case, because there is no authority in the Controlled Substances Act for anyone to do what has been done here... that is, to focus on the specific medical practice and say, "No controlled substance"--

Justice Ginsburg: But you made--

Mr. Atkinson: --"# can be used for"--

Justice Ginsburg: --you made a point earlier that the Attorney General has never done this before, has never said,

"You can't prescribe particular drugs for. "

--has... that has not been done.

You've been giving examples of where the FDA ruled that you can't--

Mr. Atkinson: --That's correct.

Justice Ginsburg: --use a drug.

And that control is nationwide, no matter what the State medical board thinks, right?

Mr. Atkinson: Yes.

There is... there are... for example, in scheduling of drugs... and the U.S. Attorney General suggests, for example, that he could simply schedule these drugs in a way to... as a way of avoiding the Oregon Act... or voiding the Oregon Act, as it were.

And, to do that, he has to get his medical and scientific advice from the Secretary of Health and Services, and must accept that advice and be bound by it.

And certainly, that wasn't done in this case.

So, I hope that answers your question.

Justice Ginsburg: Who... the consultation, you said, was not with HHS, and it wasn't with Oregon?

Who did the Attorney General consult?

Mr. Atkinson: To the best of our knowledge, it was solely done within the Department of Justice.

Justice Stevens: May ask this question concerning the... Justice Scalia's suggestion that you're insisting the States would have the authority to act independently of a congressional prohibition against the use of a substance to make people happy and so forth.

Isn't your point in this case that Congress hasn't really spoken to the issue to which the Attorney General has spoken?

Mr. Atkinson: That's exactly right, Justice Stevens.

Justice Stevens: Which is the opposite of the case that Justice Scalia point, where the Congress has spoken to the issue.

Mr. Atkinson: And there are circumstances in which it has, and those in which it has not.

And to try to respond to Justice Scalia's point, again I would invoke the 200 years of responsible regulation of the practice of medicine, which is the backdrop against which Congress legislated in this case.

Congress does not lightly assume, nor should it, that States are going to... are going to simply legalize drugs to make people happy.

It hasn't happened.

Congress doesn't assume it's going to happen.

States act responsibly.

Congress assumes--

Chief Justice Roberts: Well, but in 1971 Congress didn't assume the States were going to pass legislation for use of drugs to assist with suicide, either.

Mr. Atkinson: --No, that's certainly true, Mr. Chief Justice.

But Congress knew, as we all know, that the practice of medicine evolves, that things change, that today's... acupuncture, the use of Botox, things that were unheard of 30 years ago, are all accepted medical practices today, and they are all regulated by the States, not by the U.S. Attorney General.

And the question here is whether Congress intended to enact a uniform medical practices--

Justice Scalia: These are all different manners of assisting people to stay alive or assisting people to feel better.

Assisting people to die is something of a totally different category.

Mr. Atkinson: --Justice Scalia, I have to disagree.

There's a great deal of medical practice now, and attention, focused on end of life issues.

This Court has seen them.

For example, in Cruzan, the Court said it is a matter for the States to decide those things.

The Court has seen cases that involve do not resuscitate orders.

The Court is familiar with living wills.

There are any number of--

Justice Scalia: I don't deny that.

I... I'm not taking a position on whether, you know, a State wants to allow it, or not.

I'm just taking a position on whether it was envisioned by Congress, in 1971, that accepted medical practice would include prescribing drugs to help somebody end his life.

And I don't think it... I don't think it would have occurred to Congress.

Mr. Atkinson: --I don't think that it would have occurred to them either, Justice Scalia, but I do think what occurred to them was that that was a matter that, like any other matter dealing with the regulation of medical practice, the States could be trusted to act responsibly.

That's what Oregon has done here.

That's what this Court invited the States to do in Glucksberg.

Justice Souter: But I take it you would agree that, in effect, all you need to win on the statutory argument is for us to accept the premise that Congress may very well have intended to interfere with the practice of medicine and to authorize the Attorney General to do it, insofar as the practice of medicine would have gutted the statute... e.g., doctors who prescribe recreational drugs, doctors who, in effect, cater to pushers... but that Congress did not intend to go any further than that in authorizing interference with the practice of medicine.

I take it you agree that if we accepted that premise, that would be sufficient for you in this case.

Mr. Atkinson: That's absolutely true.

Justice Souter: Okay.

Mr. Atkinson: That's absolutely true, Justice Souter. But... this case is obviously about statutory construction, but it's about statutory construction in a very special area, and that is the area of federalism, of the relationship between the sovereign States and the Federal Government.

We think it's clear, from examining the statute, that Congress intended to retain and respect the historic powers of the States to define legitimate medical practices.

Rebuttal of Paul D. Clement

Chief Justice Roberts: Thank you, Counsel.

General Clement, you have four minutes remaining.

Mr. Clement: Mr. Chief Justice, and may it please the Court--

I think Respondents have embraced the logical consequences of their position.

And what it results in is turning the Controlled Substances Act, the federal Controlled Substances Act, into an odd patchwork.

It also is profoundly ahistorical, because, at the time of the Harrison Act of 1914... which the Controlled Substances Act was intended to strengthen, not weaken, as this Court pointed out in Moore... at that time, the States had a variety of different approaches to opium and heroin and other... and cocaine and other substances... opium and cocaine now of which land on schedule 2.

Some of them tightly regulated them, some of them allowed them in over the counter tonics in large quantities.

And the point of the Harrison Act was to clean that up and impose a uniform Federal regime.

And they knew it would have an impact on State regulation of medicine.

And even the Court, in the Linder days, recognize that that was not, per se, a constitutional problem.

Justice Scalia: But what about gutting? Never mind Mr. Atkinson's argument.

What about gutting?

Mr. Clement: Well, it's an odd statutory... I mean, I'm not familiar with the... with the principle that the Federal authority only extends to prevent that which would gut the statute, and no further.

That seems like an odd principle.

And I think that, here, it is a perfectly legitimate interpretation of this statute to say that a Congress that was profoundly concerned with overdoses, with suicide, with drug abuse, precisely because of its debilitating effect on people's lives, would not have been agnostic at the prospect of--

Chief Justice Roberts: At the time--

Mr. Clement: --controlled substances.

Chief Justice Roberts: --at the time this statute was passed to deal with lax State treatment of opium, was opium regulated as part of medical practice in any of the States?

Mr. Clement: It was, Mr. Chief Justice.

They were all over the map, but there was clearly a recognition that doctors were part and parcel of the problem, that there were needs in States to more closely regulate both the doctors and the pharmacies.

That was, kind of, the two problems that gave rise to this.

And there's no question that the impact of the Federal program was profound on the State's practice of medicine.

Nonetheless, that program was upheld, and that has been the tradition in this area.

Justice Kennedy: Was the impact profound because they were in what's now schedule 1, that they were just prohibited?

In other words, were doctors allowed to prescribe opium for some purposes?

Mr. Clement: They were.

And opium's now on schedule 2.

The Harrison Act did not have the schedules we're familiar with from the Controlled Substance.

But most of what was at issue... I mean, opium, in its various forms, morphine, all of that of that is now on schedule 2, and that's really what prompted the Harrison Act in the first instance.

Justice Stevens: May I ask you this question? If the Attorney General determined that acupuncture was conduct that threatened the public health and safety, could he delicense, or revoke, the license of doctors who engaged in acupuncture?

Mr. Clement: I don't think so, Justice Stevens.

It's the same reason as my answer earlier, which is, I think you have to look at this regime, and read it in light of the 90 years of Federal involvement in the regulation of controlled substances and the lack of a traditional Federal role in regulating medicine qua medicine.

And I think this is on the... on the side of the line of regulating controlled substances.

With respect to the commerce clause issue, I would... thought that one thing that came clear out of the Raich decision is that the relevant factor to consider is not the class of activities that a State decides to decriminalize, but, rather, the class of activities that Congress decides to regulate.

And with respect to schedule 2 substances, I would think this case is a fortiori.

We're not talking about substances that are homegrown and are never part of a commercial transaction.

And even those who were in the dissent in Raich, I think, would think that this was an appropriate commerce clause application.

This case is to Raich as the regulation of commercial farming would be to Wickard against Filburn.

It is a much different situation.

Congress's commerce clause power is more robust here.

I wanted to remark and focus for a minute on what an odd statute Oregon has passed.

The practitioner respondents point out it is a prescribing law only.

And Oregon itself points out that what's allowed here is the prescription, but not the administration, of these substances.

Even what Oregon does, does not purport to be medicine, as one traditionally understands it.

I can think of no other medical substance where a doctor can prescribe it, but not administer it.

And I think if you look at that aspect of the statute, what becomes clear is that Oregon is not regulating medicine, it's purporting to basically take a Federal regulatory regime that allows doctors the ability to get at schedule 2 substances.

Thank you, Mr. Chief Justice.

Chief Justice Roberts: Thank you, General Clement.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Cheney v. U.S. District Court for the District of Columbia - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Cheney v. U.S. District Court for the District of Columbia

Media File:

03-475_20040427-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Theodore B. Olson

Chief Justice Rehnquist: We'll hear argument now on number 03-472... 475, Richard B. Cheney vs. United States District Court.

General Olson?

Mr. Olson: Mr. Chief Justice, and may it please the Court:

This is a case about the separation of powers.

The Constitution explicitly commits to the President's discretion the authority to obtain the opinions of subordinates and to formulate recommendations for legislation.

Congress may neither intrude on the President's ability to perform these functions, nor authorize private litigants to use the courts to do so.

As this Court has construed the Federal Advisory Committee Act to avoid what the Court regarded and described as formidable constitutional questions, FACA does not permit the litigation and discovery the Respondents wish to pursue.

Justice Kennedy: Would you say it's also a separation of powers question, Mr. Olson, to the extent that it involves the ability of the courts to formulate rules to prevent them from deciding questions unnecessarily?

Mr. Olson: I'm not sure I understand the thrust of your question.

Justice Kennedy: Well, you said this is a case about separation of powers.

And I wanted... I asked whether or not the authority of the courts is not also involved here, because there is a concern that we should have rules designed to prevent us from unnecessarily deciding questions.

Mr. Olson: Well, with respect to the... I'm not sure whether you are asking a question about the jurisdiction of the Court, because that's an issue that's before the Court, or with respect to construing the Federal Advisory Committee Act to avoid the constitutional questions that are implicit in that statute.

We think that there is jurisdiction in this Court.

We think that what the Court did in Public Citizen was make it very clear that because of the formidable constitutional questions, in fact, the Court referred to the constitutional questions in that case as undeniable.

The Court construed the Federal Advisory Committee Act not to apply in that case.

If that same rationale is applied here, the Court will not get to the constitutional question which FACA would inevitably raise if it intruded upon the President's power to obtain opinions from his subordinates, and to make recommendations to Congress with respect to legislation.

Justice Scalia: General Olson, we would also not get to it if we adhered to the firm final judgment rule which is the first hurdle that you have to overcome.

Justice Ginsburg: You wouldn't get to the merits if there is no jurisdiction for us to review at this point.

Mr. Olson: That's true, Justice Ginsburg.

This case fits squarely, we submit, within what the Court decided unanimously in the United States vs. Nixon for two reasons.

In the first place, a denial of immediate review would render impossible any review whatsoever of the claims, the separation of powers claims that are being made here, because the Vice President... and the Vice President is acting as the subordinate and surrogate for the President here.

This is the President's authority.

Justice Scalia: Well, of course, in the Nixon case, the President exercised his privilege and it was overruled.

Mr. Olson: Yes, Justice...

Justice Kennedy: So it's not, it's not on all fours in that sense.

Mr. Olson: Well, it's not all fours in that sense, but the principle as articulated by the Court on pages 683... I mean 691 to 692.

What the Court was concerned about there is that the traditional contempt avenue or any aspect of what would be required of the President of the United States to defy a court order would be both unseemly and would unnecessarily provoke a constitutional confrontation.

What the Court said in that case, when we are talking about, when the Court is talking about important separation of powers questions, the President is in the position of having to defy a court order, risk sanctions of some sort.

Justice Breyer: But you are not defying a court order if you exercise a privilege.

Justice Scalia: Or if you assert a privilege.

Mr. Olson: With respect, Justice Kennedy, this case, the separation of powers issue in this case goes far beyond the assertion of executive privilege.

Executive privilege concerns itself with particular documents or a concern over the relationship that particular documents refer to.

The objection here is to the process.

The President and the Vice President are being subjected to litigation and discovery which goes far beyond what the statute would require here.

Justice Scalia: It's essential to the Government's position, I take it, that this Court reject the de facto doctrine that was developed by the Court of Appeals.

Mr. Olson: We think, Mr. Chief Justice, that the de facto doctrine is wrong.

It's inconsistent with Public Citizen, and if the Court were to construe... find that somehow that the statute could be construed to create a de facto doctrine, which no court has ever done, finally done in connection with a case, that the case, the statute would be unconstitutional as it applied to these circumstances.

However, Mr. Chief Justice, we believe that the Court does not need to get there by construing the statute narrowly, as the Court did in Public Citizen, unanimously, I might say, because three of the eight justices felt that the statute, if it were construed any other way, would be unconstitutional.

Construing the statute in that fashion...

Justice Scalia: When you say construe it narrowly, but nonetheless, retain the de facto doctrine?

Mr. Olson: No.

Not deal with it at all.

I mean, the statute itself, we submit, addresses... I think in the context of this case, Mr. Chief Justice, the statute may be construed in the context of a Presidential advisory group explicitly excluding a committee that's formed of all government employees, and as construed by the Court in that case, either... the words used in the statute are established or utilized.

As construed by that case, this commission was established by the President.

It would be exempt on its face from application of FACA.

Justice Scalia: But what if it's, what if it's... what if the manner in which it's utilized is that, in fact, outsiders, nongovernment employees, were actually given a vote, that when the committee took a vote, there were some nongovernment employees who were counted?

Mr. Olson: We submit, Justice Scalia, that that would raise very serious constitutional questions.

As an antecedent to that, there was no intention when Congress passed a statute to prohibit or regulate ex parte communications between the executive branch and members of the public.

Justice Scalia: Well, this is, this is more than ex parte communications.

It's that the committee is in fact, as utilized, not a committee composed exclusively of government employees.

All I'm saying is the people voting, the people voting, why would that be such an intrusion upon the executive?

Simply to require knowledge of whether anybody that voted on the various recommendations of the commission was a nongovernment employee.

Why would that be such a terrible...

Mr. Olson: Well, I'm going to, I'm going to quote from the Public Citizen decision itself, which authoritatively and specifically defined the term or utilized in a way which would be flatly inconsistent with this question that you just raised.

But I also want to mention, and would want to go on to say, that would require that the courts ignore the presumption of regularity which applies to the executive, particularly when the executive is performing core executive branch functions, which it clearly is in this case.

But to get back to your question, the court in Public Citizen, on page 462, specifically defined what or utilized meant in that case.

And defined it in this way, in order to avoid the undeniable formidable constitutional questions that would be raised if it was defined as you suggested.

The Court said...

Justice Scalia: General Olson, would you clarify why we are dealing with the merits.

Justice Ginsburg: I thought, and correct me if I misunderstand this, that the merits will have to be resolved in the first instance by the court below.

If we find that there is jurisdiction, if we agree with you, for example, that this discovery should not have been allowed, then why should we take the first view of the merits of this case?

Mr. Olson: It seems to me in the context of this case, Justice Ginsburg, that once jurisdiction is acknowledged, the context of the case, the administrative record, which specifically contains within it the Presidential directive which created the advisory committee only to include members of the executive branch.

The report of the committee, which specifically identifies as members only members of the executive branch, and the affidavit or declaration that's on file from the deputy director, which said that the only participants were members of the executive branch, and the presumption of reliability, of regularity that the Court consistently, U.S. vs. Armstrong is one case, the Court consistently, absent clear evidence to the contrary, accords executive branch action...

Justice Scalia: But you would still be asking us to resolve the merits in the first instance, not to review any lower court decision because they said there ought to be discovery first.

Mr. Olson: Well, but we are submitting that the discovery itself violates the Constitution, violates FACA as properly construed.

Justice Souter: All discovery, not... you are not...

Mr. Olson: Yes, because...

Justice Scalia: But isn't that simply the basic argument on the merits again.

Justice Souter: The reason... I think you're saying the reason we can't have discovery is because the whole statute is unconstitutional as applied to the President.

Mr. Olson: Unconstitutional if it... if applied in these circumstances.

Now, it may be construed...

Justice Souter: Yes.

If we go... I mean, if we do what Justice Ginsburg is trying to do, and that is get to the jurisdictional issue without passing, in the first instance, as accord in the first instance on the merits, then it seems to me that the jurisdictional question, to me at least, boils down to this.

Why should we accept your position on jurisdiction when jurisdiction goes to the propriety with constitutional overtones, of course, of discovery, and we don't have the discovery order refined yet.

If this case goes back or if it had indeed not been appealed in the first place, you would have been fighting with your colleagues on the other side about what specific discovery to allow.

Once we knew what the District Court specifically was going to allow, we would have a fairly sharply focused question, and that arguably would be subject to an appeal regardless of the final judgment rule.

But we don't have that focus yet.

Mr. Olson: Well, there is two answers to that... at least two, Justice Souter.

In the first place, the discovery was ordered by the District Court.

It may be found at pages 215 to 220.

Justice Souter: But you never came down... I realize that, I have read the orders.

But you never came back, or the Government never came back and said, well, that order is too broad because, and we think it could be allowed to this extent, and there was... there was no, as I understand it, there was no process of trying to refine the discovery order down to anything beyond the generalities that we have on the record.

Mr. Olson: Every effort was made with respect to the actions of the litigants in the District Court to refine it as much as possible.

The District Court finally said this is what I order.

I order the Petitioners not to file any dispositive motions.

I order the Petitioners to respond to the discovery, to reply to nonprivileged discovery requests and assert executive privilege, which we are saying...

Justice Souter: And you did not assert any executive privilege.

Mr. Olson: No.

We did not.

Justice Breyer: So we don't know what might be subject to executive privilege, and sustained, perhaps, and what would not be.

Justice Souter: And it's the what would not be that would raise the constitutional issue that you are trying to raise.

And it seems to me, until we know exactly what that is, there is a pretty good argument that the final judgment rule should not be subject to exception at this point.

Mr. Olson: Well, I think that there is a very strong case that it should be, Justice Souter.

The Court of Appeals addressed this issue, too, and said, well, the District Court might have been too broad.

In fact, the Circuit Court, the Court of Appeals recognized the constitutional implications and then said, but maybe that can be narrowed down, but that the Respondents should be entitled to whatever discovery they need to prove their case.

Justice Scalia: Was the District, was the District Court's discovery order unconditional?

Mr. Olson: Well, it was... I don't know what you mean by...

Chief Justice Rehnquist: Well, I mean, did it say, you know, the Government must produce thus and so, thus and so, thus and so?

Mr. Olson: Yes, it did, Mr. Chief Justice, although it did say that the Government could assert privileges with respect to burden or executive privilege, and so forth.

But if one looks at those discovery orders and they are in the joint appendix, they were much broader than the statute itself, broader than the relief that possibly could...

Justice Scalia: But now we are dealing with the situation at the two, the two justices, judges on the Court of Appeals both said, this is too, this discovery order was too broad.

Justice Ginsburg: It ought to be trimmed.

Now the District judge would have that message, so you could have gone back there and said see, District judge, this has to be narrowed.

Mr. Olson: Inevitably what would have happened, because what the Court of Appeals said, and this is at Petition appendix 18-A of the Court of Appeals decision is that however refined the District Court's order would be, they would be, the Respondents would be entitled to whatever discovery they needed to prove their case.

Now, what they need to prove their case, notwithstanding the presumption of regularity that the Court has always applied to the executive, absent clear evidence to the contrary, there is no clear evidence to the contrary here, Justice Ginsburg.

All there is is a pure unadorned allegation which the Respondents say they get from media reports that there were contacts, nothing beyond that.

But what they would need to prove, to prove their case is precisely what the District Court was going to allow them to utilize.

Justice Scalia: Well, can we get to...

Mr. Olson: In the form of...

Justice Scalia: Can we get to the jurisdiction point?

Why is it that you went to... that you are justified in going to the Court of Appeals?

Justice Kennedy: Because there is a new exception to the collateral order doctrine, or because you are seeking mandate?

Mr. Olson: Both, Justice Kennedy.

Justice Kennedy: What is the exception?

Is it something new under Cox or is it on one of the before Cox exceptions?

Mr. Olson: This fits squarely within Nixon.

When the Court said to require the President, and remember, we are talking about the President as the real party in interest, to place himself in the posture of disobeying a court order, merely to trigger the procedural mechanism.

Justice Scalia: We have already discussed that he did not... the Vice President in this case did not exercise his privilege.

Wasn't close to being held.

Mr. Olson: What we are dealing with here is the President...

Justice Kennedy: How do you describe the general exception that you want us to have for discovery disputes in the District Courts?

Mr. Olson: When the...

Justice Kennedy: When it involves the Vice President, it's different?

Mr. Olson: Well, it certainly does when it involves the President or the Vice President in core constitutional functions.

And U.S. vs. Nixon stands for the proposition when the President must choose between submission to an unconstitutional order, which participation in this discovery, the process of participation, having to prove every time the President consults with someone, to submit to litigation, and potentially submit to discovery, to submit to the violation of the separation of powers, or, or violate or challenge either sanctions or some order from the District Court.

Justice Scalia: You wouldn't have to do that if you just asserted executive privilege as to each discovery request that you thought would be burdensome.

Justice Breyer: And then if that's granted, you have no problem.

And if it's denied, you immediately come up on that.

Mr. Olson: Justice Breyer...

Justice Breyer: Why not do that?

Mr. Olson: We believe that it's much broader than executive...

Justice Breyer: I know that's your legal argument, and you may be right about that.

But assuming you are right about that, you bring up the broader issue on an appeal from the case.

See if you lose it.

And as to your being right, being right I guess isn't enough to get you to appeal a discovery order if... but maybe you can if you really need to.

So my question is, why did you really need to since you could have asserted executive privilege as to each individual.

Mr. Olson: Because the act of forcing the President to invoke executive privilege every time someone files a lawsuit, notwithstanding the presumption of regularity which was completely ignored here, that means that FACA would be used in every case to file a lawsuit to challenge the President and the Vice President's ability to...

Justice Breyer: Well, let me...

Mr. Olson: To obtain opinions...

Justice Scalia: Let me ask you this.

At some point, I think the Government made a Section 12(b)(6) motion to dismiss this suit because the statute was unconstitutional.

Justice O'Connor: And that was denied.

Now, could the Government not have sought review either under the collateral order doctrine at that time, or even by mandamus to address directly whether the statute is constitutional?

Mr. Olson: Potentially, Justice O'Connor.

Justice O'Connor: Why didn't the Government do that?

Mr. Olson: Because the Government was anxious... because there was another way to resolve this whole problem, notwithstanding the denial of the 12(b)(6) motion to dismiss.

Justice Scalia: But wouldn't that have given the courts a chance to go directly to the issue of whether the statute is constitutional?

Mr. Olson: We submit that what the Government did here was try to work out the delicate constitutional problems that were involved here, the balancing of the executive's prerogative with the litigation function and that sort of thing, and to go the extra mile.

I don't think the Court would want to encourage filing a mandamus or collateral order appeals every time there is a denial of a motion to dismiss.

Justice Scalia: I take it, General Olson, that from the rest of your argument that traditional executive privilege doctrine would not cover all of the constitutional issues that you think exist here?

Mr. Olson: That's precisely correct, Mr. Chief Justice.

The forcing of the President to submit to litigation and discovery, which if permitted in this case could be in any case comparable to it, any time advice is being sought from a citizen or from subordinates who may have then talked to citizens, notwithstanding the clear four corners of the directive when the President created the body within his own Administration from which he sought advice, every time there would be a lawsuit, every time they would say, well, Mr. President, come into court and claim executive privilege.

Justice Kennedy: I see that.

Justice Breyer: I see that.

Justice Scalia: But that's an argument which you made in response to my question which is an argument on the merits.

Justice Breyer: And I want you to focus on the fact that... assume I agree with you on the merits.

You will have a chance to make that argument on the merits, even if you lose here and if you lose the case.

Now, my question is addressed to the need for an interim appeal from the discovery.

And as to that, what is your response to the fact that you could get your interim appeal or at least preserve yourself from harm if you had asserted executive privilege to the individual bits of the discovery order with which you disagreed.

Mr. Olson: There is two answers to that, one which the Chief Justice suggested in his question.

Executive privilege may not have covered every scrap of paper.

It would have required the President and the Vice President to spend time with documents deciding whether or not to assert executive privilege.

And it is the process... more importantly than that, it is the process itself of submitting, as it would be if someone, if the Congress had applied this statute to the Supreme Court of the United States or even to itself, and then allowed litigants to bring the Court or members of Congress into court to explain why they wouldn't produce information with respect to who they talked to.

Justice Scalia: Well, you know better than most the dynamics... than most attorneys, the dynamics of the discovery system.

I hear in your argument echoes of every discovery dispute I've ever listened to.

Mr. Olson: Yes.

There are several differences, Justice Kennedy.

As I said at the very beginning, this discovery dispute involves bringing the President and the Vice President of the United States into court to defend themselves with respect to textually committed obligations and responsibilities that they have under the Constitution.

Every other discovery dispute that I have experienced, and I submit this Court has experienced except for perhaps U.S. vs. Nixon, maybe another case, did not involve those circumstances.

This is at... this puts the President, in order to challenge the constitutionality of a process that's invasive to fundamental Presidential prerogatives and responsibilities into court to defend himself, notwithstanding the questionable constitutionality of the statute that triggers it, that mandamus may not be brought against the Vice President which is the... the Federal Advisory Committee Act, it's worth mentioning, does not create a private right of action.

The APA did not create a right of action against the Vice President here.

So the litigants in this case, not having a right to even bring this case under the statute, then sought mandamus, it's important to mention.

Justice Scalia: Well, then why did the Government turn over 36,000 pages of paper from the agencies that were also a part of this action if the whole thing is so misguided, if the application of this Act violates the separation of powers, why did the Government respond to the request for information from the agencies?

Mr. Olson: There are several answers to that.

One, the agencies occupy a different statute under the APA.

They occupy a different position under the Freedom of Information Act.

And therefore, the obligations were different with respect to the President's core function.

Arguments...

Justice Souter: But those documents that were turned over were, as I recall, documents that would have been available under FOIA, is that right?

Mr. Olson: Yes, Mr.... Justice Scalia, they would have been arguably available under FOIA, and they were produced under FOIA.

Justice Scalia: But you didn't get, you didn't make the argument that no discovery, you are very clear about that, no discovery is appropriate under this statute.

Justice Ginsburg: And yet you didn't, whether... whether the information that was turned over could have been gotten under FOIA, this wasn't a FOIA suit.

Mr. Olson: There was more than one action, Justice Ginsburg.

There were several FOIA actions brought against the various different departments.

Justice Scalia: Well, specifically, these pages that have been previously disclosed to other requesters under FOIA.

The request in this case, wasn't it made to them under the FACA?

Mr. Olson: Yes.

But the documents having already been produced and made available to the public under FOIA, it seemed to the government that would be foolhardy and unnecessarily confrontational and would serve no purpose whatsoever to withhold producing another set of those documents.

Again, this is effort...

Justice Souter: General Olson, would you clarify one thing for me?

Justice Scalia: Were these documents produced by agencies or were they produced by the energy policy group.

Mr. Olson: They were produced by agencies.

Justice Stevens: So there has been no discovery at all from the policy group, and you claim, of course, that they are totally exempt under the plain language of the statute.

Mr. Olson: Yes.

And Mr. Chief Justice, if I may reserve the balance of my time.

Justice Scalia: Very well.

Justice Kennedy: Very well, General Olson.

Justice Stevens: Mr. Morrison, we'll hear from you.

Argument of Alan B. Morrison

Mr. Morrison: Mr. Chief Justice, and may it please the Court:

The threshold question before this Court is whether the Court of Appeals correctly ruled that it lacked jurisdiction over Petitioners' attempt to obtain interlocutory review of the District Court's order.

In seeking review in this Court, Petitioners paint the picture of having been backed into a corner.

They claim that if they do not obtain immediate appellate review that they will lose all meaningful opportunity to obtain review of the legal positions that they have taken in the District Court.

The basis for this claim, as the Solicitor General said, is United States against Nixon.

The Court of Appeals correctly distinguished that case, and said that under neither mandamus or the collateral order was review proper.

The Petitioners...

Justice Breyer: The Court of Appeals based that, as I recall, on the fact that in Nixon, executive privilege had been asserted, right?

Rebuttal of Theodore B. Olson

Mr. Olson: They certainly made that observation, but that was not the only reason relied upon by the Court of Appeals.

There is some question as to the extent to which the Court of Appeals opinion can be read in that regard.

We do not rely on the fact that executive privilege was not claimed because here the Government's position is that no discovery of any kind whatsoever, other than the previously produced documents, is available here.

Justice Breyer: I'm surprised to hear that.

I was, I was going to talk to you about executive privilege, because I thought that your briefs did rely on the fact that executive privilege was not claimed, and that doesn't seem to me a very significant factor.

Rebuttal of Alan B. Morrison

Mr. Morrison: I thought I had been pretty clear in my brief saying that executive privilege was certainly something that could be claimed down the road.

And we certainly... the District judge had not precluded that from happening.

But as far as we were concerned...

Justice Breyer: It should make no difference to the outcome of this.

Mr. Morrison: It makes no difference.

It makes no difference.

Justice Breyer: But there is an interim position in which one would say, well, it makes a difference to this extent, that until the executive privilege has been claimed and has been ruled upon, the extent of... to which they have a plausible separation of powers argument is not clear.

Justice Souter: I mean, we could take that position, I take it, you would agree?

Mr. Morrison: Yes.

That would require accepting the notion that... that everything else that they can... they can refuse to turn over everything else, which is essentially their position here.

The Solicitor General's brief is very clear, no discovery, period, in this case.

Justice Breyer: It would also require acceptance of the position that executive privilege is a definable doctrine only applicable to certain matters, and that it is, it is the function of this court to decide what it can be asserted for and what it can't be asserted for.

Justice Scalia: And that is not my view of executive privilege.

I think executive privilege means whenever the President feels that he is threatened, he can simply refuse to comply with a court order.

And the same thing with Congress.

And it ends up in a, you know, a struggle of the two branches.

I don't view that as some legal doctrine that enables him to withhold certain documents.

He is, he has the power as an independent branch to say, no, this intrudes too much upon my powers, I will not do it.

And after that, it's a, it's a struggle between two branches.

And if you view executive privilege that way, forcing him to assert executive privilege is really pushing things to an extreme that should not very often occur in this Republic.

Mr. Morrison: Well, leaving aside the question of the interpretation of the United States against Nixon as to whether that decision agrees with Your Honor's interpretation, we don't have to get to that issue in this case, and... and the...

Justice Breyer: I don't want to delay this.

Justice Scalia: But to me this is important.

Justice Breyer: Assume that their interpretation of the statute is completely right.

Justice Scalia: Assume that.

Mr. Morrison: Yes.

Justice Breyer: I know you don't want to, but for argument's sake, then what they are really asking for is a separate exception from the collateral order.

I mean, and a separate exception that allows them, the Vice President and the President, and nobody else, to take an appeal from discovery.

Now, executive privilege in my mind came in by asking, well, shouldn't they at least have to assert that it's that kind of imposition upon the President's office prior to being able to carve out, under whatever name, a separate exception that would permit an appeal.

Mr. Morrison: I don't read the Government's brief as being that narrow.

But to the extent that what they are saying is that they have some kind of special immunity from discovery, it would, as Justice O'Connor suggested earlier, have been perfectly apparent the day of July 11th when the court denied the motion to dismiss, and ordered that discovery is going to take place.

That that was the time in which the Government should have taken an appeal if they claimed some sort of immunity like...

Justice Breyer: What kind of a...

Mr. Morrison...

You can't appeal from, you can't appeal from the denial of the motion to dismiss.

Justice O'Connor: That's really interlocutory.

Mr. Morrison: Well, Your Honor, but... the notion that there is a special kind of immunity from discovery of the President and Vice President, a situation like this which is what I understand their argument to be, that's the functional equivalent of an immunity defense for which there is an exception under the collateral order rule.

I disagree with the merits of that, but if that's their argument, that's when they should have taken the appeal.

Justice Souter: Are you saying...

Justice Scalia: I wonder about that.

I can see you coming up here and saying, everyone knows that the motion to dismiss was denied is not interlocutory.

Justice Breyer: There has been no discovery yet.

There's been no order.

They haven't been heard.

I can hear that.

Mr. Morrison: But nothing has happened of any legal significance in the case from that time on.

The Solicitor General said the Government was trying to work things out.

Justice Kennedy: Discovery order.

That's significant.

Justice Breyer: The mere denial of the motion to dismiss did not automatically determine that there would be a discovery order.

Justice Scalia: The court, the court might have found, in accordance with the arguments of the Government, that discovery would be inappropriate.

Mr. Morrison: Your Honor, with all respect...

Justice Scalia: And so that is a new injury to the, to the executive which they are trying to bring up here.

Mr. Morrison: With all respect, Your Honor, if you read the District Court's opinion, the principal grounds on which the District Court refused to dismiss the case was that discovery was required both with respect to the de facto officer issue and with respect to...

Justice Breyer: Ordinarily, that would be summary judgment, not motion to dismiss.

Motion to dismiss just deals with the pleadings.

Justice Scalia: You are not talking about discovery at that stage.

Mr. Morrison: Well, the Government, Your Honor, had offered in evidence the Executive Order creating the task force and a copy of the final report.

The Knutson affidavit did not come in until three months later.

Justice Breyer: Then why wasn't that the end of the case?

Because as I understand it, discovery is just what you want at the end of the case.

Mr. Morrison: No, Your Honor.

Justice Breyer: What relief can you get if you win the lawsuit?

Mr. Morrison: Well, if Your Honors will look...

Justice Scalia: No.

Justice Stevens: Tell me what relief you can get if you win the lawsuit?

Mr. Morrison: We can get a declaration that it was... that de facto has to apply.

We then get access to all the drafts.

Justice Breyer: So you get discovery.

Mr. Morrison: No, Your Honor.

What we get... some of the things we would have gotten...

Justice Scalia: You get more discovery, or what did you get if you win the lawsuit?

Justice Breyer: That's the thing I hadn't really been understanding.

Mr. Morrison: We get copies of all the papers that were exchanged in the entire advisory committee process.

Justice Breyer: Have you not asked for those in discovery?

Mr. Morrison: We have asked for document... for discovery requests which the Government contends are very broad and could include some of those things.

Our discovery plan...

Justice Breyer: And are they right?

Mr. Morrison: They could be interpreted as being right, but not in light of what the District Court said in his order denying the motion to dismiss.

He said, we are going to have very narrow, tailored discovery designed to find out first and foremost is the de facto officer applicable.

If you look at our plan of discovery, which is in the joint...

Justice Scalia: What is this de facto officer?

Justice Breyer: Where does that come from?

Mr. Morrison: It comes from a case that was decided in the D.C. Circuit in 1993.

Justice Breyer: It did not involve this particular exception from the FACA, though.

Mr. Morrison: Yes, it did, Your Honor.

Justice Stevens: It did not involve... it did not involve a committee composed entirely of government employees.

Mr. Morrison: Oh, yes, it did, Your Honor.

It was alleged that... the first place, the Hillary Clinton task force was composed entirely of government employees and the working subgroups were also composed entirely of government employees.

The first question was, was the First Lady a government employee.

Justice Scalia: Yes.

I understand.

Justice Breyer: But the... as to the working groups, they were found not to be government employees?

Mr. Morrison: No, Your Honor.

They were found sufficiently unclear that the Court of Appeals sent the matter back for discovery.

Justice Scalia: And they were defined, they were identified in the order appointing the committee, the working groups.

Justice Breyer: Do you contend that any of the people named in the order appointing this committee are not the people they purport to be?

Mr. Morrison: Not in the order appointing the committee, Your Honor.

But we do contend that the subgroups...

Justice Stevens: That people not named in the order are really members.

Mr. Morrison: Which were specifically authorized...

Justice Stevens: Which is different from that other case.

Mr. Morrison: It is arguably different.

But as Justice Ginsburg suggested earlier, since the Court of Appeals was the one who created this doctrine to begin with, it would seem inappropriate for this Court to try to distinguish this case from that one on the basis of when we, A, don't have a record, and B, when the Court of Appeals had never been allowed to pass on that particular issue.

Justice Breyer: That's a rather strange doctrine, that we can't tinker with what the Court of Appeals has done, even though we disagree with it.

Mr. Morrison: No.

It hadn't done anything, Your Honor.

It has not ruled on that doctrine in this case at all.

It hasn't reached the merits.

The Court of Appeals decided nothing but jurisdiction.

Chief Justice Rehnquist: And so you say that we then are prohibited from saying the Court of Appeals de facto doctrine is wrong?

Mr. Morrison: I didn't say prohibiting, Your Honor.

I said in the exercise of your discretion, it would be appropriate to allow the Court of Appeals in the first instance to pass on it.

Judge Randolph, by the way, Justice Stevens, thought in his dissenting opinion that the only way he could distinguish the two cases was to overrule the prior decision.

He may or may not be right, but it suggests to me...

Justice Breyer: Well, why isn't it wrong?

Justice Scalia: Why isn't, why isn't the Court of Appeals wrong on that, the argument being that this is not a discovery statute.

This is not an ex parte communications statute.

Justice Breyer: This is not a Freedom of Information Act statute.

This is a blue ribbon committee statute.

Mr. Morrison: No, Your Honor...

Justice Breyer: And if you turn it into the latter, you will stop...

Mr. Morrison: It is partially...

Justice Breyer: you will stop every... you'll stop every lower level official in government when he is creating legislative policy from getting on the phone and calling up whoever he pleases.

You understand that argument.

I want your response.

Mr. Morrison: All right.

Two responses.

First, to some extent, it is an open government statute because part of the relief under FACA is getting access to all the documents that the committee prepares, including its minutes.

Second is that this statute does not apply, except to committees.

A committee under the Public Citizen case requires a substantial level of formality.

We concede that both this committee and the Executive Office of the President and anyone else can call anyone they want at any time without triggering FACA.

Only if you have a formalized committee and if you bring people in to participate in the same manner as other committee members...

Justice Breyer: That would require voting.

Mr. Morrison: Not necessarily, Your Honor.

Justice O'Connor: I have... I have always been puzzled by that in your briefs, to participate in the same manner as other committee members.

It seems to me the essence of being a committee member is having a vote in the outcome.

Justice Scalia: So it seems to me the only discovery you would need is discovery as to whether anybody who was not a government employee voted.

Mr. Morrison: That, Your Honor, I suggest is a question of law as to whether voting is required, but we believe that if outsiders participated in the marking up of drafts, they had input into the drafts, particularly at the subgroup level, even though they had no formal vote...

Justice Scalia: Why is that?

Justice Breyer: If I bring somebody else from my agency with me, I expect all of these cabinet members didn't come to the meetings alone.

They certainly had assistants with them.

Justice Scalia: Were those assistants members of the committee?

Mr. Morrison: They were...

Justice Stevens: Certainly not.

Mr. Morrison: They did lose the exception, Your Honor, because they were full-time government employees.

Justice Scalia: I'm not asking whether they lost the exception.

I'm asking whether they were members of the committee, and the answer has to be no.

Now, suppose I bring instead of another government employee with me to give me advice, I bring a private individual with me to give me advice.

Suddenly, that private member becomes... private individual becomes a member of the committee even though a government agency member...

Mr. Morrison: It is certainly a plausible interpretation, Your Honor.

Justice Scalia: Not plausible to me.

Mr. Morrison: Well, the statute says the exception is composed of, wholly composed of full-time government employees.

Congress was well aware of this problem and it decided that it wanted to have a very narrow exception.

At least it's an arguable basis and we are now here on interlocutory appeal without any facts in the record whatsoever as to how these committees operated, how the subgroup operated.

They may have had a vote at the subgroup level.

Justice Breyer: What do you say about the presumption that high officials of the government obey the statutory provisions that they are supposed to follow?

Mr. Morrison: Well...

Justice Breyer: You don't have any information and belief that the people who are said to have been appointed were really not appointed, do you?

Mr. Morrison: They were appointed.

If I may, Your Honor, a quote from the staff director's affidavit, which appears in the, in the joint appendix on page 76.

He admits, and the Government admits, that there were substantial numbers of meetings between outside people and the task force.

The question is what happened at those meetings, and that's what we seek discovery.

This is not simply an allegation.

The General Accounting Office...

Justice Scalia: But that's all you would get if you won the suit, and it goes back to Justice Stevens' question.

Justice Breyer: Isn't the posture of this case one in which what happens at the end of discovery if you prevail and get discovery is substantially the same as if you won the suit.

Mr. Morrison: Your Honor, we would get properly reined in discovery, as the District Court understood it, we would get the basic information about who went to the meetings, who had access to the drafts, whether anybody had the right to vote.

At that stage of the proceeding, that's all the discovery we think we are entitled to.

Justice Breyer: Do you think those are fairly concluded within the separation of powers privilege that the Government is asserting?

Mr. Morrison: I do not think that the Government has any right to withhold that kind of information in this kind of case.

And if the Government makes...

Justice Kennedy: But that's, but that's the issue.

Mr. Morrison: Yes.

And if the Government asserts that it has the right to withhold that information, it may continue to assert that right.

The District Court will then proceed under Rule 37, enter an order against it.

It can then take an appeal from a final judgment and the question...

Justice Breyer: Only if the District judge enters a default judgment, but that's just one of many options.

Justice Scalia: The District judge isn't required to take that...

Mr. Morrison: No.

That is correct.

And get... the question is, should we try to anticipate what the District Court, District judge will do.

Justice Ginsburg: Thank you, Mr. Morrison.

Mr. Orfanedes, we'll hear from you.

Argument of Paul J. Orfanedes

Mr. Orfanedes: Mr. Chief Justice, and may it please the Court:

Judicial Watch submits there was no jurisdiction in the Court of Appeals to review the District Court's discovery orders, but assuming for purposes of argument that there was jurisdiction, we respectfully submit that the District Court properly denied Petitioners' motion to dismiss, both as a matter of statutory construction and consistent with Circuit precedent and separation of powers.

Justice Scalia: Well, that surely is one thing that's not before us, is it, is the District Court's denial of the motion to dismiss?

Mr. Orfanedes: Well, no...

Justice Souter: I mean, it's not appealable.

Mr. Orfanedes: That's correct.

The Government is arguing, however, that the discovery that the District Court did order should not have been ordered because of the underlying merits of the motion to dismiss is my understanding of the Government's argument.

We submit that that's a...

Justice Scalia: They are arguing that it's not before us... what they are arguing is that this statute doesn't apply, so therefore there was no discovery.

The statute isn't one under which you can go behind the certification of the President, the Vice President, et cetera.

Justice Breyer: We both read their briefs.

Mr. Orfanedes: I think that's indistinguishable from arguing...

Justice Breyer: Okay.

Well then go ahead and make the argument.

Mr. Orfanedes: If you could allow me to proceed.

The District Court ordered discovery because it believed that it was necessary in order to avoid the constitutional issues that the Government is raising in their briefs.

In denying the motion, the District Court properly applied what was Circuit precedent at the time and is Circuit precedent, the AAPS case, allowing for this de facto membership doctrine that we have talked about.

The District Court thought that if discovery yielded information that would show there were no, there was no involvement of private individuals in the task force, then there would be no reason, no reason to even reach the constitutional issues.

Justice Breyer: Involvement of private individuals in the task force does not equate with membership of private individuals in the task force, and I wonder what your view is about the question that I asked to Mr. Morrison.

Justice Scalia: What, what is it that makes you a de facto member?

It surely can't be just sitting there next to somebody else who is even at a full committee meeting.

It can't be sitting next to the cabinet member.

Mr. Orfanedes: I think the court in the AAPS case, that the District Court was relying on, and that the Circuit Court was also...

Justice Scalia: Yes.

Well, that case may be wrong.

What is it that makes you de facto member?

What... I assume it's the same thing that makes you a member, that is the power to determine the action the committee will take.

Justice Kennedy: That is the power to vote.

Mr. Orfanedes: I think it's not looking just at voting, but whether or not there is anything that functionally distinguishes the members, the de facto members from the actual members.

Justice Kennedy: There is.

Justice Scalia: The vote.

Let's assume that's the only thing that distinguishes them, the vote.

Isn't that enough?

Mr. Orfanedes: It could be a vote.

But there could also be... it could also be more than that, in this particular instance...

Justice Scalia: If it's more than that, you are not talking about de facto members.

You are talking about de facto participants, and that's a different...

Rebuttal of Alan B. Morrison

Mr. Morrison: In this particular instance, there was one allegation we set forth in our complaint of policy recommendations that were conveyed to the Vice President and those recommendations did end up mirroring recommendations that were...

Justice Scalia: Exactly.

Now, their problem with your interpretation of the statute, I take it, is the following.

Justice Kennedy: Forget the Vice President.

Justice Scalia: You are Assistant Secretary of Antitrust.

Rebuttal of Paul J. Orfanedes

Mr. Orfanedes: That's correct.

Justice Breyer: You are Assistant Secretary of HHS in charge of drug policy.

You are trying to develop a legislative proposal.

Every staff person in the Congress, given such a task, would phone everyone in sight who knows about it outside the Congress to try to develop sound proposals.

And if it's a serious matter, they'd have 50 meetings with everybody under the sun.

And if you assigned the same thing, try to do the same thing under your interpretation of the Act, every one of those outside people could be hit with a discovery order, what meetings did you go to, what did you say, what did you do.

And their final point is that Congress could not possibly have intended in this statute to have created that circumstance, putting government in a cocoon when it develops legislative policy.

Now, I have overstated what they said, but I'm trying to get a response from you as to what I take is their basic point.

Mr. Orfanedes: I think that's correct, Justice Breyer.

I don't think...

Justice Breyer: Well, you don't think it's correct.

Mr. Orfanedes: I don't think... I don't think Congress would have created such a statute, and I don't think they did create such a statute.

Justice Breyer: Cause.

Mr. Orfanedes: The case law that has interpreted the statute and the statute themselves requires a certain degree of formality, structure and continuity to an advisory committee before, before the requirements of the statute begin to apply.

Circuit Court precedent, including the Nader vs. Baroody case, that I think all the parties have cited in their brief held exactly that.

That there has to be... there cannot be ad hoc committee meeting or ad hoc committee members.

Justice Breyer: Explain the degree of formality that you think triggers the statute.

Mr. Orfanedes: Well, certainly there has to be an establishing document, according to FACA.

I think there has to be some degree of understanding of what the membership of the committee is going to be.

There talks about an end point to the committee as well.

Justice Breyer: The Attorney General of the United States turns to the head of the Antitrust Division and says I want a legislative proposal about Webb-Pomerene acts.

You get together with your counterpart at State, create an interagency task force and give me a document, and he announces the whole thing in a public speech.

Now, do we have the application, in your opinion, of FACA that would trigger the questions I mentioned?

Mr. Orfanedes: That, that may trigger the questions that we made.

And I think there is one thing that's important about this particular committee, and the document that established it.

It's a January 29th memorandum from the President.

It's in the appendix at 157, I believe.

And in that document, the Vice President was given the discretion to create subordinate working groups.

There is nothing in that document that limits subordinate working groups to consisting only of private employees.

Justice Scalia: If the interagency task force creates the FACA situation in your view, imagine that I have repeated my first question, but simply applied it to interagency task forces.

Justice Breyer: If you remember my first question, it had to do with the cocoon.

Mr. Orfanedes: Sorry.

Justice Breyer: All right.

Now, what is your response?

Mr. Orfanedes: I think again what becomes important is the membership of that task force.

And if that, if the idea behind creating that task force allowed for, in the AAPS case, outside consultants or consultants of undetermined origin, in this instance subgroups, without any limitation as to whether or not they would be Federal employees or not Federal employees, in that instance, the requirements of the statute could be triggered.

Justice Scalia: Those subgroups would report to the full committee, I assume, they would not have any dispositive authority over what the report of the committee says, would they?

Mr. Orfanedes: Well, there was nothing in the originating document that described who those subgroups would report to.

Justice Scalia: Well, they are called subgroups, aren't they?

Rebuttal of Alan B. Morrison

Mr. Morrison: That's whether or not...

Justice Scalia: That seems to indicate that they are under somebody.

And I gather what they are under is the committee.

Rebuttal of Paul J. Orfanedes

Mr. Orfanedes: It could very well be whether they reported to the committee as a whole or to the executive...

Justice Kennedy: Well, that's fine.

Justice Scalia: I don't care who they report to.

They are not the committee.

Mr. Orfanedes: They are not the committee, but FACA includes within its definition of an advisory committee any subgroups or working groups of a committee.

Justice Scalia: Well, if the, if the statute requires disclosure of all these things, at the end of the day, as a final order, and discovery, when they are hit with a discovery order, it gives them all the same information, why isn't the Government right, that this really is the essence of the suit and we should hear the merits of it now.

Mr. Orfanedes: I don't think it is the essence of the suit.

I think the appellate court gave some strong advice to the District Court to limit discovery to two points, really.

Number one, being the involvement, whether there were private individuals involved.

Justice Kennedy: I don't know how the Court of Appeals...

Mr. Orfanedes: and to what extent...

Justice Scalia: can give any advice at all if it says it has no jurisdiction or the case is improperly before it.

Rebuttal of Alan B. Morrison

Mr. Morrison: Well, I think... and also a significant point to be considered in that regard is that the Government did not object to the scope of this, of the discovery that it was... as it was served.

They had the opportunity, they had every opportunity to submit particularized objections, including privileges, but not just privileges, also objections as to scope, relevance, materiality.

The usual long litany of discovery objections that any party is able to.

They declined that opportunity.

The District Court was very careful.

I think he bent over backwards in inviting them to assert objections on several occasions.

They chose not to do so.

So for them to come back...

Justice Scalia: Suggesting that they... they consented to the discovery, but just they did not make specific objections?

Rebuttal of Paul J. Orfanedes

Mr. Orfanedes: They did not make specific objections.

No.

I'm not saying they consented to it.

They were, they were clear in their objections to any discovery whatsoever, discovery that the District Court felt it needed as a means of constitutional avoidance in order to determine, first of all, whether the statute applies.

And secondly, in order to narrow any constitutional issues that it might have to consider if the statute did apply.

Justice Scalia: In any case, they did not avail themselves of the opportunity that the Court of Appeals has clearly given them now to whittle that order down.

Mr. Orfanedes: That's correct.

They have not.

Justice Breyer: But you are... am I correct in thinking your case in the District Court was just a mandamus action, right?

Justice Souter: There is no cause of action under the statute.

And so in order to establish relief on mandamus, you have to show a clearly, clear right to relief and jurisdictional defect, something along that kind.

Justice Stevens: You don't normally file a mandamus action and then get discovery to see whether you are entitled to mandamus.

Mr. Orfanedes: Justice Stevens, we had actually several different counts in our complaint, which included, first of all, we did assert a count under FACA.

That was dismissed.

We also asserted a...

Justice Stevens: The FACA doesn't create a private cause of action.

Mr. Orfanedes: That was ultimately the basis for the dismissal.

Justice Stevens: That's why it was dismissed.

Mr. Orfanedes: But we also had an... an APA claim.

And then ultimately...

Justice Scalia: But you don't... that also has no merit because the Vice President is not an agency, and neither is the group.

Mr. Orfanedes: Well, the reasoning behind the APA claim...

Justice Breyer: The only viable claim you had was the mandamus claim, as I understand it.

Mr. Orfanedes: Well, the APA claim is continuing with respect to the agency defendants.

The heads... I shouldn't say the agency defendants.

Justice Stevens: And they have given you discovery you asked for, if I understand it?

Mr. Orfanedes: Actually, they have...

Justice Stevens: It's only the group itself that refuses to give any discovery.

Justice Scalia: And if I understand their position, if we give you discovery, that's just the same as giving you a victory in the lawsuit.

Mr. Orfanedes: The agency defendants have given us some discovery, but at the same time, they also asserted objections as to executive privilege and deliberative process in answering our questions.

They did not give us any information about what role, if any, independent individuals, private individuals played in the deliberations of the task force.

Justice Scalia: Could you just embellish your answer to Justice Stevens' question a little bit?

And that is, if you, if you get some discovery, and you win your case, what do you get when you win that you will not already have gotten by the discovery?

Mr. Orfanedes: I guess I just want to... is this as a comparison to the discovery that, that was ordered?

Justice Breyer: Whatever the discovery is.

Justice Souter: Whatever the discovery is.

You got enough discovery to win your case, you win it.

Justice Breyer: What do you get then besides a statement saying they were wrong, you win.

Mr. Orfanedes: If discovery is limited to the narrowing that the appellate court suggested, none of that information, I believe, would be something that we would get under the statute if we were to win.

Under the statute, we are entitled to basically the documents of the committee as limited by any properly applied exemptions of FOIA.

Justice Scalia: You are saying you get more discovery?

Mr. Orfanedes: I wouldn't... no, we don't get more discovery.

Justice Scalia: What are these documents that you would get that you would not already have gotten at the discovery stage?

Mr. Orfanedes: Well, the documents the appellate court was talking about, and in addition to interrogatories which we don't get... and actually, at one point the Government actually suggested that discovery take place on the basis of interrogatories.

We wouldn't get any interrogatory answers.

Justice Souter: So you would get documents?

Mr. Orfanedes: We would get documents.

Justice Souter: And what documents would you get?

Mr. Orfanedes: We would get, I believe the statute allows disclosure of all of the documents of the task force subject to the limitations of FOIA.

The documents are produced as if the task force was an agency subject to FOIA, and all the exemptions that FOIA applies, I believe, apply to these documents.

Justice Scalia: So you'd get a broad disclosure is what you are saying?

Mr. Orfanedes: That's right.

I think the discovery as suggested or as narrowed by the appellate court is a much smaller subset of the information we would get if we were entitled to... if we ultimately prevail on the merits of the lawsuit.

There has been a couple of statements with respect to our complaint being based on nothing more than mere unsupported allegations.

That is a false statement, in our view.

In order to support our claims, we are relying first and... first and foremost on the statement in the memorandum creating the document that says the Vice President has discretion to create subordinate working groups.

Then we also attach several statements, acknowledgments by the Government, that describe meetings between task force representatives and representatives of Enron and representatives of other working groups.

I believe the Government itself acknowledged there were at least five such meetings.

We know that the Vice President met with the chairman of Enron, Ken Lay.

The Vice President himself in an interview he gave on Nightline said we met with all kinds of folks, we met with energy groups, we met with environmental groups...

Justice Scalia: When does that... I don't see how that's...

What does that prove?

Mr. Orfanedes: The point is that this shows the involvement of outside...

Justice Breyer: They talked to a lot of people, got a lot of advice, but does that make them de facto members of the committee?

Mr. Orfanedes: Well, that's the question that we are seeking to answer through our discovery.

The point is that this is not an unsupported, these are not mere unsupported allegations.

Justice O'Connor: Well, I'm not sure that's right.

Justice Stevens: Just because you said they talked to a lot of people doesn't really prove anything, it doesn't seem to me.

Mr. Orfanedes: Well, if you put that together, the allegations of the individuals that were met with, with the statement in the memorandum that allows the Vice President discretion to create working groups, we think it does at least raise a significant question as to whether outside individuals were participating in these working groups and participating in the committee as a whole.

In any event, the District Court firmly believes that it needed this discovery in order to answer these questions.

I see my time is up.

Justice Souter: Yes.

Justice Breyer: Thank you, Mr. Orfanedes.

Justice Scalia: General Olson, you have five minutes left.

General Olson, I hope you'll address the point whether you'll, whether you'll have to disclose anything more at the end of the suit than you will under the discovery.

Rebuttal of Theodore B. Olson

Chief Justice Rehnquist: Is there a big difference between what they get under the discovery order and what they would get if they win the suit?

Mr. Olson: Thank you, Justice Scalia.

I was going to address that point because it's been addressed by Justice Souter, Justice Stevens, Justice Kennedy.

What the discovery... and I don't have time to read the interrogatories or the requests for admissions, but those require the production of all information with respect to any contacts at all between any member of the task force or any government employee that assisted with it or any agency...

Justice Scalia: Overall within the scope of the order that the District Court gave?

Mr. Olson: Yes.

Those were the discovery and requests for admissions.

Now, the Court of Appeals didn't refine that.

It said that, well, that's pretty broad, and it should be narrowed down, but it should be whatever is necessary to prove their case.

They thought what was necessary to prove their case was to have all outside contacts.

FACA does not require the production of that degree or that scope of documents.

It has to do with minutes and drafts and things that were actually considered by the committee.

So the discovery is vastly broader than the relief that would be available if FACA existed.

Secondly...

Justice Scalia: General Olson, I thought that the, what the Court of Appeals said is there could be discovery on two issues.

And one was what non-Federal offices participated, and two, to what extent.

Justice Ginsburg: Judge Tattle and Judge Edwards were both pretty clear on that, that that would be the nature of the discovery permissible.

Rebuttal of Paul J. Orfanedes

Mr. Orfanedes: Well, of course.

But that's exactly what those requests for admissions in those interrogatories seek.

All contacts between any member of the committee or any other government employee and any outside person.

And then what Judge Tattle and what... went on to say at page 18-A, that is to say the discovery they need to prove their case.

Justice Souter: The point is it's different, isn't it?

Rebuttal of Theodore B. Olson

Mr. Olson: It's...

Justice Scalia: They want stuff on discovery that has to do with who said what to who.

And if they win, they get a different set of things which are the documents of agendas, et cetera.

Mr. Olson: Well, it's...

Justice Scalia: Is that right?

Mr. Olson: It's different, but it... everything that they have asked for in those requests for admissions and those interrogatories, Justice Breyer, include everything they would get under FACA and a whole lot more.

So... and there is no question about that.

Now, with respect to the subordinate working groups, a point was made with respect to the President's directive, that the President said the Vice President may establish subordinate working groups to assist.

The declaration that's in the file at page 240 of the Joint Appendix specifically says that the Vice President authorized that, but the Vice President did not establish any such subordinate working groups.

And then the declaration goes on to say that there was only a public citizen that was involved in developing graphics and that sort of thing.

And that was the only person that was involved.

No such individuals, the individuals named in the litigation, participated in the working group formulation.

What we are saying here is that the constitutional immunity from discovery that we are talking about here is rooted in the overriding presumption of regularity, which, if repealed in this case, would repeal... if overridden in this case would repeal the exemption under FACA for all government working groups.

And these are exclusive functions, textually committed to the President of the United States getting opinions from his subordinates.

As your question suggested, Justice Breyer, virtually anything that the President might do, asking the Attorney General or the Assistant Attorney General for this or that to formulate something, and they go out to talk to people, that could be a... that would be a FACA lawsuit in a heartbeat.

There is no statute that creates the right that the Petitioners seek here.

There is no, there is no cause of action under FACA, and there is, no, Justice Stevens, no clear remedy, no clear right to which they are entitled to ministerial duty and therefore a remedy.

And they just jumped over the fact that the statute didn't give them the right to bring this case and brought it in the form of mandamus.

Mandamus is no substitute.

It's not appropriate here.

It's a pure circumvention of the statute.

There is, we submit, no such thing as a de facto member of an advisory group under FACA.

FACA was intended to address the creation of de jure working groups where the President would cloak himself in the benefit of public citizens who have come up with this proposal.

It's not, I think your question, Justice Breyer, it's not a FOIA case.

It's not a...

Chief Justice Rehnquist: Thank you, General Olson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Intel Corp. v. Advanced Micro Devices, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:08 +0000

Case:

Intel Corp. v. Advanced Micro Devices, Inc.

Media File:

02-572_20040420-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Seth P. Waxman

Chief Justice Rehnquist: We'll hear argument next in No. 02-572, the Intel Corporation v. Advanced Micro Devices.

The spectators are admonished do not talk until you get out of the courtroom.

The court remains in session.

Mr. Waxman.

Mr. Waxman: Mr. Chief Justice, and may it please the Court:

28 U.S.C., section 1782 authorizes discovery for use in a proceeding in a foreign or international tribunal, upon application by an interested person.

Those are words of indeterminate scope.

No one in this case contends that they should be applied to the limits of definitional possibility, that words like interested person, for use in, proceeding require a contextual interpretation, and the context in this case is comity in discovery.

As... in language that everyone in this case quotes, the 1964 Senate report characterized the statute as for the purpose of, quote, adjusting U.S. procedures to the requirements of foreign practice and procedure.

And with respect to the question presented in this case, there are three salient, completely undisputed facts.

Number one, EC law denies an antitrust complainant any discovery rights for anything at any stage of the proceeding however long or short it may go.

Number two, if AMD had filed its complaint with the Antitrust Division of the Justice Department or the FTC, it would likewise have no discovery rights whatsoever.

And third, the EC, which can obtain these documents directly from Intel, has not only declined to do so in this case, but has unequivocally represented to this Court that permitting parties that file complaints with it, thereby to invoke section 1782, will interfere with its governmental functions.

Justice Scalia: Mr. Waxman, I... I... it seems to make a lot of sense, but I need a... I need a... a hook to hang it on.

I need some language in that text which... which would enable me to say, oh, it means you only get discovery when there would have been discovery in the foreign proceeding.

But I... I don't... I don't see any language that gets me anywhere near that.

Mr. Waxman: Justice--

Justice Scalia: You can fall back, I suppose, on... on guided discretion until, you know, we can tell the lower courts never to do it unless its available in foreign... but I don't see it in the language.

Mr. Waxman: --Justice Scalia, I'm... I'm confident that our successive briefs in this case provide a number of hooks, but I'm going to give you one or two that I think are particularly applicable with respect to textual interpretation, although obviously we also would urge the Court, because this is a procedural statute, not one that grants substantive rights, that it can and must announce general rules of supervisory power that outline where a... where discretion ends and abuse begins because another operative word in the statute is may.

But since we're talking with text, let's look, for example, at the word, interested person.

The innovation of the statute is it said, okay, you can grant discovery either pursuant to a letter rogatory, et cetera, et cetera, which is the ordinary way in which international discovery is invoked by foreign tribunals or foreign sovereigns, or by an interested person.

Now, no one in this case says that interested person should be given its plain meaning, otherwise we would have essentially a universal private freedom of information act.

And so--

Justice Scalia: I understand that.

But I am looking or a word in here that... that similarly requires you to decide whether the foreign court itself would allow discovery.

Mr. Waxman: --Well, we... we think--

Justice Scalia: Which is... which is the... the major point you were addressing.

Mr. Waxman: --Yes.

Justice Scalia: I don't see any... any--

Mr. Waxman: Everybody will come... everybody who argues today will give you some definition of what interested person is, and none of them are the limits of definitional possibility.

So you've got to give it a construction that is consistent with the history and purpose of the statute.

Justice Ginsburg: --Why not at least a complainant?

I mean, the person who is seeking the discovery here is the complainant, the one who comes to the commission and says investigate.

And I understand your third point.

Your first two points puzzle me because there is no counterpart in European schemes to our out-of-court discovery.

It doesn't exist.

It all takes place under the control of the court and the direction of the court.

And on the other hand, the... the animal that the EC antitrust unit is is nothing like our Antitrust Division where the... we don't have that blending.

You don't have a complainant who has a right before that commission to submit evidence, to be present at their... if they... if they do have a hearing.

We don't have a complaining party before the Antitrust Division that has a statutory right to be present at a hearing.

So you... the... the systems are different and you can't compare them on both points.

Mr. Waxman: To be... to be sure... to be sure, Justice Ginsburg.

And you will hear... you know, everybody has their own favorite contextual interpretation of words like interested person or for use in.

But the context of this statute is discovery, and the purpose, as made pellucidly clear, is to reduce the significance of international boundaries in discovery.

And therefore, what we say, with respect, is you should read interested person to mean an entity that has at least some discovery rights to something at some stage of the process, whether it's pending or imminent or reasonably foreseeable.

Chief Justice Rehnquist: Some... some discovery rights in this country?

Mr. Waxman: In... in the foreign country, that is, for the foreign sovereign who's being assisted.

Now... now, AMD suggests that oh, no, no, no, no.

Another purpose of the statute was the imperial export of, quote, liberal American discovery rules.

Now, we think that's wrong, but even if it were right, it would be unavailing in this case because it is undisputed that if they had filed a complaint with any of the antitrust regulatory authorities here, they would be entitled to no discovery whatsoever.

And therefore, at least you ought to interpret interested person to mean a private entity that has no discovery rights whatsoever either in the foreign proceeding or would have it here.

I mean, the very premise of, quote, liberal American discovery is that it is available when a private party undertakes the obligations of being a litigant.

That is, you file a... you can't get discovery based on some speculation that you have a lawsuit.

You get discovery when you undertake the obligations consistent with rule 11 of pleading a case.

And what they are trying to do... there is no case, reported case, decided by any court in the long history of this--

Justice Ginsburg: But even so, if you take a typical civil law proceeding a... between private litigants, you can't go out and get discovery on your own.

The court has to authorize it, and the order for discovery will come not from a subpoena that you sent as a private party.

It's just... they don't... so if we were to interpret it your way, then you would say, well, that no private party in a civil law system that doesn't know from pretrial discovery, doesn't have anything like pretrial discovery, could never get any documents, could never get any testimony.

Mr. Waxman: --Justice Ginsburg, I... I think... I mean, I think this Court ought to announce that since the manifest purpose of the statute is to assist, quote, foreign tribunals and litigants before those tribunals, that the indeterminate words of the statute should be read in that context.

But even if you wanted to say that discovery would be available at least on a discretionary basis, to someone who has some discovery rights somewhere, if they were to file this type of action in some place, that would also be useful to the lower courts.

And there... it is simply irrational to say that a statute that was enacted in order to reduce the significance of international boundaries would create this giant loophole that creates ubiquitously universally unavailable discovery, just because somebody has... happens to bring an administrative complaint in one country and seeks to receive documents that are available in this country when he or she couldn't have received them if he had sued here and where the foreign, quote, tribunal has stated as a categorical matter that resort to section 1782 by complainants before it will affirmatively undermine its sovereign governmental processes.

Justice Kennedy: What happens when AMD goes to the court of first instance, disappointed with what the EU commission or that the EU committee has done, and then it goes to the court of first instance?

Can that court of first instance in its discretion order any discovery?

Mr. Waxman: I believe, Justice Kennedy, that the answer to that question is no.

I'm sure that Mr. Phillips, on behalf of the EC, will be able to correct me if I'm wrong.

But whether it can--

Justice Kennedy: I'm sure he'll... I'm sure he'll be glad you asked him to do that.

Unknown Speaker: [Laughter]

Mr. Waxman: --Well, I'm giving him at least 15 minutes advance... 10 minutes advance warning.

The point here, I think, in response to your question, Justice Kennedy, as whether it could or couldn't is a feature of a sovereign determination by the countries that make up the European Community.

If discovery is available in that proceeding, there's no doubt that's a court proceeding and that's a proceeding before a tribunal.

And whatever discovery rights--

Justice Ginsburg: But I'm talking, Mr. Waxman--

Mr. Waxman: --whatever--

Justice Ginsburg: --Mr. Waxman--

Justice Kennedy: --That's... that's why I asked and it would seem... let's assume that the court of first instance could order and in the usual course would order some sort of discovery.

Justice Ginsburg: Would that change your case here?

Mr. Waxman: --It... it wouldn't at all.

If it could, then, you know, a 1782 request could be made in the unlikely event that the EC or the court couldn't simply do what it can do now, which is order Intel to produce the documents.

I mean, that's... that's the jarringly anomalous result that they're seeking.

Justice Ginsburg: Mr. Waxman, I thought it was clear that the court proceeding is a review of the record as it comes to the court from the commission, that is, that the only proof-taking stage is before the commission and that the EC courts, both the tribunal of first instance and the ECJ, review on the record that exists.

They don't take any proof.

Mr. Waxman: I believe that's correct, and our... they call... they say that this puts them in a, quote, Catch-22 or a conundrum, but it does nothing of the sort.

The question before the court of first instance may be... and this is assuming a lot of speculative things including, among others, that they are disappointed with what the EC does and that the EC doesn't do what it could do any day, including this afternoon, which is order Intel to produce these documents, but assuming documents aren't produced and the EC decides, as we fervently hope, not to proceed against Intel and... and they decide that it's worth it to go to the court of first instance and the review will only be on the record that the EC compiled, under European Community law ipso facto the question would be whether or not the EC or DG comp erred in declining the request to obtain these documents.

I mean, you... we... we don't have a proceeding... let's say in a... just a regular lawsuit in the United States.

I'm... you know, Intel is suing AMD.

Intel wants certain discovery.

AMD objects.

The judge says, I'm not going to grant that discovery.

I don't really think that's necessary.

We don't have a procedure.

You'd be laughed out of court if you came in and said, well, nonetheless, we want it produced so that if we lose before this court proceeding and we go up on appeal, we'll be able to argue not only that the district judge abused his discretion in denying discovery, but we want to be able to show what those documents would say.

I mean, nobody has such a procedure.

And to the extent that there's any, quote, conundrum here... and frankly, I don't see it... it's a conundrum that is the result of the way that the European Community has chosen to organize its processes.

Justice Breyer: I think the... the difficulty is... is, well, what are the rules.

What you say sounds as if it makes a lot of sense, but there are three aspects to the case.

Starting backwards is, can a private party bring this?

The answer is yes.

You agree it's yes.

But you want to say not always.

So then you have a rule that you've just enunciated now of who definitely couldn't.

And as to the second, I guess... I mean, I'm not sure that's the right rule, frankly.

Maybe we'd figure that out.

Maybe it is.

The second part.

I found an opinion by Justice Ginsburg where she has a rule which is in the D.C. Circuit which says about how close it has to be in time, and my guess is that you will say that's okay, but I'd be interested if you don't.

And as to the first part about, well, yes, we agree this is a person who can get discovery, but not here, now, there I don't see any rule at all.

So I'd like to know your views on that.

Mr. Waxman: Well--

Justice Breyer: I mean, you want to follow their... all right.

So my two questions are, is Justice Ginsburg's approach to the time problem okay with you?

Mr. Waxman: --No.

We think--

Justice Breyer: No.

All right.

Mr. Waxman: --that insofar... well, we think, first of all, as the EC has explained, there is no proceeding before a tribunal and there won't be unless and until one of these two parties ever decides to go to the European--

Justice Breyer: Well, that... her quote--

Mr. Waxman: --And--

Justice Breyer: --Let me... I better quote this.

It says you have to have to get this discovery reliable indications of the likelihood that proceedings will be instituted within a reasonable time.

Mr. Waxman: --Right.

Justice Breyer: Now, you might win under that for the very reason you state.

Mr. Waxman: I think we certainly would win under it.

We think on balance that when the request is made by a private party, not a foreign sovereign or tribunal, that the request should be made by somebody who is a litigant in pending litigation but that at the most, if the court were to say, well, okay, even in the context in which there is a private who's not even a litigant yet, we're going to allow discovery to be obtained where litigation is, as the Second Circuit has said, imminent, that is, reasonably likely to occur and reasonably soon to occur, because otherwise discovery by private parties, prior to the... the initiation of any proceedings before a tribunal is ubiquitously unavailable unlike the context of, for example, an investigating magistrate or a criminal prosecutor where it almost always is universally available, and the 1996 amendment to the statute reflects that.

Justice Scalia: Do you have any explanation for elimination of the word pending from the statute?

Mr. Waxman: No, and particularly since the legislative history... the language of the legislative history that explains the statute continues to use it, it seems to me that what they... what they... it most likely reflects the fact that they wanted to include the French investigating magistrates... and I won't mangle the language by trying to give the French pronunciation... where it was arguable whether that was or wasn't a tribunal.

They wanted to... to cover it and therefore pending wouldn't necessarily have been required in that context.

But I don't think... there is not a shred of evidence that when Congress considered this statute at any point in its legislative development, it ever considered... and it had no reason in the cases to ever consider... an outlandish request where a private party that doesn't have any discovery rights at this stage anywhere in any country no matter where it files such a complaint would thereby get them as a windfall by means of this anachronism.

May I reserve the balance of my time?

Argument of Carter G. Phillips

Chief Justice Rehnquist: Very well, Mr. Waxman.

Mr. Phillips, we'll hear from you.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

Justice Kennedy, the answer to your question is that the court of first instance does not have the authority to order discovery.

But Justice Ginsburg, the answer to your question is that the court of first instance does have the authority to say, in response to an argument made by AMD, that we have not adequately explained why we didn't take that information into account.

And we know from the briefs that AMD has a pretty good idea what that information entails and therefore would be in a perfectly adequate position to go first, obviously, to the commission and say this is why we want you to consider this information.

And then second, in the event that we were to issue a refusal to go forward with the proceeding, which we have to explain, frankly, in quite excruciating detail, that's then subject to very much plenary review by the court of first instance and ultimately the Court of Justice.

Justice Kennedy: And the court of first instance can't expand the record.

Mr. Phillips: No.

The court of first instance does not expand the record.

It, like our Federal courts reviewing agency decision-making, has the authority to send the matter back to the agency to review the question a second time.

Justice Ginsburg: Where does this proceeding stand now?

I mean, this is a discovery request and it's pretty... it's been pending pretty long.

Has the commission made no preliminary determination?

Mr. Phillips: The commission has not made a preliminary determination.

I think it's important to put it in context.

This is a... an abuse of monopoly power claim based on a large number of contracting arrangements between Intel and a lot of its customers.

And the question... and so there's a serious question of having to review a lot of market data in order to determine whether or not there appears to be a pattern of abuse or a problem that's worthy of going forward with.

So the commission has for some time been taking a very hard look at the nature of the market, has obviously talked to AMD, has talked to Intel.

I think that's an important aspect of this case that the Court ought to have in mind, is that... and... and it's part of the comity concerns that I think ought to animate the Court's analysis of this problem.

The commission has an orderly process and that process may, at some day, require it to ask Intel to provide these particular documents or other documents.

We don't know.

But what we don't want frankly is for a private entity to run to a United States court and use essentially the commission as a pawn in an effort to obtain pre-complaint discovery.

That's pre-complaint both pre in the United States complaint and pre-complaint in the... before the European Commission.

If at some point in the future we need assistance, we know how to obtain that assistance on our own.

We don't require, quote, interested parties to do so.

In our... in our assessment of the case and--

Justice Breyer: How does that fit in the rule then?

I mean, what kind of... what kind of a rule of law is it?

I mean, what do you... how do you fit that in?

Mr. Phillips: --We... we--

Justice Breyer: Do you say if the commission doesn't want it, then don't give it to them, but if they do want it, do?

How does this fit?

Mr. Phillips: --Well--

Justice Breyer: How do you interpret the statute to get the result that you're arguing for?

Mr. Phillips: --Let me give you a preliminary answer and then I'll tell you... the... the real answer as how... we would interpret it through the word tribunal.

That's the statutory hook that the commission feels most comfortable with.

Justice Breyer: Well, with a tribunal you... I don't think it is a tribunal probably, but I'll hear more on the other side.

But still, there is a tribunal in the offing and that's the tribunal that will be there if the commission decides to enforce this.

Mr. Phillips: To be sure, Justice Breyer.

But the Ninth Circuit's decision was based on an assessment that the preliminary actions taken by the commission in this particular case are such that render us a tribunal within the meaning of the statute, which was the explicit basis on which the court of appeals ordered this information to be evaluated at least on remand by the district court.

And... and our position is, at least to the extent that this Court is going to adopt an... an approach akin to that by Judge Friendly in the Second Circuit opinion involving the Indian tax collectors, which looks to see whether or not the adjudicative function is distinct from the investigative functions, our answer would be that we are not that kind of a tribunal.

We... everything we do is investigative.

We do not perform--

Justice Breyer: That would do it, but they have... I think they have the alternative ground here, that even if you're not a tribunal, the Ninth Circuit says it could lead to a proceeding in the court of first instance.

Don't they say that somewhere in their opinion?

Mr. Phillips: --They make that argument, but that would be an alternative theory.

Justice Breyer: All right.

So as long as they make that argument, then I can't say, okay, I've got the result there that... that they're arguing for, assuming you're right, that... that just by using this thing about the tribunal.

Mr. Phillips: Well--

Justice Breyer: All right.

Now, so... so what else could we use to get to your desired end with this statute?

Mr. Phillips: --Well, the... the next step, obviously, and it's not one that the commission argues for specifically, but it's one that... that Intel makes, which is that even if... if you're going to use the court as the ultimate tribunal, then what is the nexus between this request for information and a proceeding before that court.

That's so far off into the future.

It certainly implicates the earlier D.C. Circuit opinion by Justice Ginsburg, et cetera.

Justice Stevens: I assume that the EU committee would be a tribunal under the first sentence if it asked for the documents.

Mr. Phillips: No, it would not regard itself as a tribunal under those circumstances.

If we wanted these documents, we... we would seek them either directly from the parties or through some other mechanism.

This is not a mechanism that the... that the commission itself views as available to it to seek documents.

We would go through government officials.

We would go to the FTC.

We would go to the Department of Justice to seek information.

We might go to our... our member countries to seek information, or we would go to parties over whom we have direct jurisdiction to seek information.

But 1782 is not a provision that the commission views itself as... views as available to it, nor does it want to be used as a pawn by... by private entities seeking to employ its processes as a mechanism to obtain pre-trial... pre-complaint discovery that's available under no other circumstances.

The... the over-arching argument that the commission would like the... the Court to take away from this is... is a question of if you have to decide on a contextual basis, because the language of the statute is not unambiguous and therefore you have to come up with some limiting principles, the commission urges the Court to recognize that the use of discovery in this... the use of this statute in this particular way is a direct interference.

It risks the release of confidential information.

It increases the burden on the commission and the workload that it has, and it allows us to unseemingly... unseemingly being used... unseemly being used as a pawn in this kind of... in this kind of an effort at discovery.

And we would ask--

Justice Souter: How does it increase the commission's workload?

Mr. Phillips: --Well, it... it--

Justice Souter: In the sense that you look at it if they give it to you?

Mr. Phillips: --In that sense and it also provides an incentive.

Justice Souter: Why... why don't you just say we're not going to look at--

Mr. Phillips: It... it provides an incentive for more filings with the commission in order to use this device in order to obtain discovery that you otherwise could not get.

And I think there's good reason to suspect that it may be used.

Certainly if this Court were to uphold what AMD attempted to accomplish here, I would be quite worried about other plaintiffs in future cases using this particular device.

And remember, there are no rule 11 sanctions that are available for a filing with the European Commission.

You don't have to be a lawyer to file a complaint with the European Commission.

It requires a relatively minimal amount of effort.

It's a letter that identifies a particular problem and asks the commission then to go forward and take a look at it.

Therefore, it's a... it's essentially a costless exercise by plaintiffs using the commission, I submit, in a way that I would hope the Court would find inappropriate and therefore ought to resolve the ambiguities, whether you do it on the basis of tribunal or for use of or proceeding... and the commission would not presume to tell this Court how to interpret the language of its statute, but whatever choice you make, whichever statutory hook you look for, the commission would ask that this Court interpret the statute narrowly.

Justice Ginsburg: --What about the one that comes up in the reply brief?

And it... and this is Intel's brief.

So I'm wondering if the commission shares the view that 1782 is meant to deal with procuring evidence in the United States from a third party, not from the party before the commission, not from Intel because the commission can tell Intel you give... give us these documents.

But it must refer to people who are not before the court.

Mr. Phillips: Yes, well, the commission is certainly supportive of that notion because the commission believes that when and if it needs these... this information, it will be able to obtain it directly from the party.

That is the easiest undertaking in order to obtain information that the commission has available to it.

So to the extent the Court wants to draw that line, certainly the commission would be quite comfortable with that line.

Again, of course, the commission is uncomfortable telling you how to decide the case... the statutory... the specific statutory language.

Let me just... one last point.

The last thing in the world the commission really wants is to have 800 district courts deciding this issue on a case-by-case basis exercising their discretion.

It seems to us that that is an intolerable burden to impose on the commission.

It cannot monitor all litigation in the United States in order to make its interests and concerns known.

And, therefore, it is terribly important that this Court announce a rule, either as a supervisory matter or as a matter of statutory construction, that will limit the ability of the commission to be used, as I say, as a pawn in this discovery effort.

Justice Kennedy: What... what's our authority to announce a supervisory rule?

What's your best case for that?

Mr. Phillips: Oh, geez.

I don't... off the top of my head... I mean, the commission didn't examine it... that particular issue specifically, Justice Kennedy.

I'm... I'm hoping that my colleague in rebuttal will be able to give--

Justice Breyer: Interpretation of what comity consists of in this instance.

Mr. Phillips: --Well, the... the comity principle are the cases like M'Culloch and the... and the... that we cited in the brief, and obviously Charming Betsy.

I mean, those are rules of interpretation that we have, but that's not... that doesn't answer Justice Kennedy's specific question.

Argument of Patrick Lynch

Chief Justice Rehnquist: Thank you, Mr. Phillips.

Mr. Lynch, we'll hear from you.

Mr. Lynch: Mr. Chief Justice, and may it please the Court:

I'd like to underline three points.

First of all, the question of the EC's comity concerns.

Those concerns deserve respect, but emasculating section 1782 is not the proper way to respect those concerns.

Privilege is really the right answer to the EC's concerns and the right answer to counsel's last-expressed concern about 800 district judges reaching different conclusions in different cases.

As to the second question, whether or not this is a proceeding before a tribunal, which seems to be the heart of this case, when Congress enacted or amended section 1782 in 1965, it is absolutely clear that Congress intended to extend the rights granted under section 1782 to proceedings in foreign countries that were quasi-judicial and administrative in nature.

And it is also quite clear that Congress did not know and did not consider it necessary to know all the different shapes and forms that administrative law might take in other jurisdictions.

Justice Breyer: In Israel, for example, if you have a... a criminal prosecutor, it looks just like our prosecutor.

My understanding is that the one difference is that a victim could go to court to force the prosecutor to bring a prosecution.

So does that mean now under this statute, because of that one difference, all prosecutors in Israel are open to this... our tribunals under this statute?

Mr. Lynch: Well, I... I think that the... the question of whether a victim is an interested person arises--

Justice Breyer: No, no.

I'm not... that's not the part I'm getting at.

I am saying it's easy to think of people whom, when we look at them, they are precisely like a human being in the U.S. Attorney's office, and everything they do every day is just like a U.S. Attorney, but for one thing, that somebody who wants a prosecution to be brought can get a court to review a decision, no prosecution.

Now, I'm asking you if that single difference is sufficient to translate this into a tribunal under the act.

Mr. Lynch: --Your Honor, I believe that the answer is that the court to which you can go in Israel and ask them to direct the prosecutor to bring a prosecution has to be a tribunal within the meaning of the statute.

Justice Breyer: No.

Now, you're not getting my questions.

Mr. Lynch: But the prosecutor is not a tribunal.

Justice Breyer: I don't want to just repeat it again.

Did you not understand the question?

The question is I'm imaging a person like a U.S. Attorney, exactly the same, and there's only the one difference I mentioned.

Somebody can go ask a judge to say did he abuse his discretion in not bringing this RICO case.

Okay?

That's the only difference.

Now, I'm asking you if we had such a person, does that make him a tribunal under the act.

Mr. Lynch: A person... the prosecutor would not be a tribunal.

Justice Breyer: Fine.

If that's so--

Mr. Lynch: The--

Justice Breyer: --and I agree with you... how does this particular tribunal differ from the one I just described?

I don't mean a tribunal.

How does the commission differ from that prosecutor I just described?

Mr. Lynch: --Because under the European rules of procedure which I can't relate to Israel, but I can relate to the United States--

Justice Breyer: Forget Israel.

I might even be wrong about Israel.

Mr. Lynch: --Under the--

Justice Breyer: You've got my question.

Mr. Lynch: --Under the--

Justice Breyer: And I want to know how they differ from what I just said.

Mr. Lynch: --Under the European rules of procedure, Justice Breyer, the... the European Commission has to consider the facts, has to apply the law to the facts, has to reach a decision which is reviewable by a court.

This is not--

Justice Breyer: And that differs from my case, which was our U.S. Attorney who can be brought to court for not prosecuting on those kinds of grounds.

You said it doesn't apply to him, and now you're more or less repeating what I said was the special feature of my imaginary U.S. Attorney.

Mr. Lynch: --Well--

Justice Breyer: So is... you can elaborate on that or give me another one too.

Mr. Lynch: --I believe that the... the process I described is a classic example of quasi-judicial activity by an administrative body.

It would be an adjudication under the Administrative Procedure Act.

Justice Scalia: The prosecutor has no authority on his own to impose a fine.

Right?

He can just bring the case to court, and I think what you're saying is that the commission here does have authority on its own to take action against a party.

That... now, that action that it takes will be reviewable, but it can impose a fine or require the... the selling of some of the assets of the company and so forth.

Isn't that right?

Mr. Lynch: Yes.

Yes, Your Honor.

Justice Breyer: That's very important.

Justice Scalia: That's--

--That's different.

That's different from what a prosecutor can do.

He can't... he can't do anything on his own.

Mr. Lynch: He cannot do anything on his own.

He does not have the power to issue fines.

Justice Breyer: And so what is the difference there between... and I... I'm serious about this question.

What is the... what... all my questions are serious.

But this is... I don't know the answer to this.

What is the difference specifically between the EU saying you pay $10 million and the U.S. Attorney saying we want him to pay $10 million?

What's the difference there procedurally?

Mr. Lynch: The... the order of the EC, the order of the commission is a final, enforceable judgment in Europe unless the party, the respondent to that order, takes an appeal to the community courts.

And that would be the same as an order of the NLRB or an order of one of our administrative agencies which is enforceable but subject to judicial review.

I don't want to--

Justice Breyer: When they review it, do they give a leg up to the commission?

Mr. Lynch: --When... when the... the commission--

Justice Breyer: If it goes to court, is the... is the issue in the court in the EU an issue like review of the NLRB, that the NLRB wins, unless they're quite wrong, or is it like a court reviewing a decision of the Antitrust Division to bring a tying case where the court will say, we'll make up our mind on our own?

You know, they know something about it, so do we.

Which is it?

Mr. Lynch: --It... I think it's some of both.

If the... if the--

Justice Breyer: It has to be either one or the other.

They... they either have to give deference to the agency, as we did, or they're making this decision on their own.

And so--

Mr. Lynch: --If the agency purports to be deciding on a question of law, like is this tying, they would review the decision of the agency the same way a U.S. court would and say, whether or not this is tying under article 82 or article 81, is ultimately a decision of law and ultimately the community courts have the last word on it.

If they were making a decision, was the procedure that was followed here adequate, did the... did the commission properly weigh the evidence, did it pursue the right evidence, they would give... they would give deference to the commission's ability to decide how to conduct its process.

So there's a great deal--

Justice Breyer: --How about fact-finding?

Mr. Lynch: --The fact-finding process is... I'm... I'm at a loss to relate it to U.S. process.

There's not like a substantial evidence--

Justice Breyer: No, I'm not talking about process.

I'm saying does the reviewing court defer to the commission's finding of fact.

Mr. Lynch: --It... I think it clearly defers, but I can't find that standard of review because the commission has been reversed in the Gregarian case, for example, which is cited in the briefs.

The commission has been reversed because the facts before it, according to the reviewing court, established a violation--

Justice Breyer: My impression, which only comes from the newspapers, is that the courts there are taking a much more active role and it's becoming like they're vis-a-vis the Antitrust Division and it's not like vis-a-vis a commission.

But is that... my--

Mr. Lynch: --I would... I would say--

Justice Breyer: --I'm wrong on that.

Mr. Lynch: --with... with all respect, I would say it would be like this Court vis-a-vis the district courts or vis-a-vis administrative agencies as opposed to prosecutors.

And where... where I started on this point was that in enacting 1782, Congress did not undertake to dictate Europe or to any other country in the world exactly our standards of administrative procedure.

Justice Souter: But did it... did it undertake to dictate to us that we should exceed our standards?

I mean, I can understand the... the argument that you... you mustn't, in effect, limit the... the discovery here by the discovery that they could have had over there because who knows what it... I mean, we're just not experts in that, and it's hard to find out.

We are, however, at least closer to being experts on what American law would provide.

Is it plausible to think that Congress was, in... in extending this great example to the world, extending an example which would provide even more generous discovery than American law would in a domestic antitrust proceeding?

Mr. Lynch: Your Honor, I think that is a false premise here.

The difference between what's going on in Europe and what's going on here is that Europe gave AMD one and only one Europe-wide remedy.

In the United States, we could have brought a private action in the district court for these very same violations.

In Europe, our only Europe-wide remedy was to go to the commission.

The European authorities as--

Justice Souter: So, in other words, you're simply saying we can't... we could sue here.

We can't sue there.

Therefore, you've got to, in effect, give us the right of a litigant here even though we are not there in a litigant's position.

Mr. Lynch: --With all respect, I would say we are in a litigant's position.

Under our interested party rules--

Justice Souter: But not in... not in the sense of being a party as... as you would be if you brought a private antitrust complaint.

That's all I meant.

Mr. Lynch: --In the sense of being a party in that our application has the same standing under European procedural law as a complaint would have here, that when we file that complaint, the commission ipso facto owes us an obligation to make an adjudication.

It cannot, just as a matter of discretion, disregard our complaint.

It must make a reasoned decision applying law to the facts.

It must consider the evidence.

Justice Souter: Okay.

So you, in effect, I think are telling me, yes, we'll accept the position that we shouldn't be better off than we would be in the United States if you realize that we are in the position of an American plaintiff right now.

That's... that's your answer.

Mr. Lynch: I'm... I would say it slightly differently, that whether you call us in the position of an American plaintiff right now or whether you say there is no direct analogy, we are a litigant in any practical sense of the word.

The commission in its brief acknowledges that when you get down to that last step, they are acting as a tribunal.

They are making a reasoned determination.

They're... they're doing everything that our Due Process Clause--

Justice Kennedy: Do they... do they--

Justice Souter: --May I go--

Justice Kennedy: --Must they consider... and I... I think this is along the lines of what Justice Souter is asking, so I hope I'm not interrupting.

Must they consider any evidence you give them?

Mr. Lynch: --They must.

Justice Kennedy: Or can they say that it's... that... that there's a... certain relevancy rules that... that you must adhere to?

Mr. Lynch: Well--

Justice Kennedy: Because what's happening, it seems to me, is that you want to force them to consider things they don't want to consider.

Mr. Lynch: --Well, I... with all respect, I don't know that they've ever said they don't want to consider it.

The indication we have is that they don't have the resources as... as an enforcement agency to go after this material which we think would be highly relevant.

But the answer to your question is, according to the... to the court of first instance, the European Court of Justice, they must consider the evidence we put before them.

Like a district court, they could presumably say this is irrelevant evidence, but they--

Justice Kennedy: But haven't they, in effect, said that?

They said, please, we don't... we don't want this.

Mr. Lynch: --They have not said that.

They have... the... the commission tells us... and I believe counsel has indicated... if we present the evidence, they have an obligation to consider it and they have an obligation to deal with that in their decision.

And they must make a reasoned decision which is reviewed by the court--

Justice Scalia: But they don't want it.

Justice Souter: Isn't the--

Justice Scalia: --But they don't want it.

They've also said they don't want it.

They said, if you give it to us, we'll look at it, we have to, but frankly, we'd rather you go away.

Isn't that what they've said?

Unknown Speaker: [Laughter]

Mr. Lynch: --No... no one connected with the commission has said that to us.

And the... the commission's briefs I guess are capable of that interpretation in this Court.

But what... what the staff working with us says is that they don't want to ask for it because of whatever decision they'd make.

But they have no have no objection to us asking for it.

We told them about this proceeding before we filed it.

We kept them informed every step of the way.

To go back--

Justice Souter: May... may I go back to the... to the one point of your answer that... that continues to bother me?

And it may be that I... I don't understand something.

So that's what I want you to help me on.

I thought their argument was that when you say your present position is just like the... or is the position of a litigant, the difference between you as a litigant over there and you as a litigant here is... is a difference in... in effect, in responsibility.

You at least at not supposed to bring an irresponsible complaint in the United States.

You can be sanctioned if you do.

They, I think, are implying that you don't have that obligation of responsibility over there and therefore simply by filing a complaint, without anything more, you get a free ticket to discovery, whereas your ticket to discovery if you were suing in the United States, is not free because you would have to meet a certain threshold of responsibility before you bring it, and therefore your positions aren't the same.

What is the answer to that?

Mr. Lynch: --There is no rule 11 for any proceeding brought in the European Commission.

They have no direct rule 11.

They have great power over the firms that come before them, and they're perfectly capable of protecting themselves from frivolous activity.

I think the difference between the commission and us is this.

When I finish or when the last person to speak finishes, this Court will say the matter stands submitted.

The commission is arguing, in effect, that it's not litigation until the commission says the matter stands submitted.

And there's this momentary point when they're a tribunal and the door slams shut.

Then the court of review says, you didn't come to the commission and offer your evidence.

It's taken us nearly 3 years to... to get access to this evidence, which we wish to put before the court.

We are like any litigant in the United States who wants to say that the body charged with enforcing the labor law, the body charged with enforcing the occupational safety law, has not properly conducted its due diligence.

We have a proprietary interest in our own right of coming forward and presenting persuasive evidence to the--

Justice Stevens: Mr. Lynch, can I ask you this question?

Mr. Lynch: --Yes, sir.

Justice Stevens: It's prompted by Mr. Waxman's argument.

Because you filed a complaint, you say you're an interested person.

Is that right?

Mr. Lynch: We can't be an interested person just by filing a complaint.

There are... there are the equivalent of--

Justice Stevens: Why not?

Mr. Lynch: --of standing requirements--

Justice Stevens: I was... I was going to ask you, what if you just filed an affidavit with the district court that you intended to file a complaint?

Mr. Lynch: --We would--

Justice Stevens: Would you then be interested?

Mr. Lynch: --We believe that... that the minimum that would be required is some proceeding underway.

Justice Stevens: So you would agree that there is some latitude for construing just the scope of what an interested person is.

Mr. Lynch: Well, yes.

I think the interested person has to have a... a place as of right in the proceeding which... in which the aid is sought, whether that's a district attorney, whether it might be a victim in Israel, whether it's a competitor.

But under European law, not just anybody can walk in and file these complaints.

You have to be a competitor or a consumer.

They're exactly the same standing requirements that we have under our antitrust law.

And... and the commission has issued regulations which are quite clear, that... that you must have standing to bring such a complaint.

Now--

Justice Stevens: So you have to... you would have to look to foreign law to determine whether the person is an interested party.

Mr. Lynch: --I think that's a U.S. law question under 1782.

Justice Scalia: But there has to be a pending proceeding, you're saying, because you obviously can't be a party if there's no proceeding yet.

Mr. Lynch: Well, again, to take some of the cases like Justice Ginsburg's case in the D.C. Circuit, a proceeding could be in reasonable contemplation when an official file has been opened to investigate.

I think that's what--

Justice Scalia: Then... then you're saying you could have come here even before you filed the... the complaint with the commission.

Mr. Lynch: --I'm saying that until you file the complaint with the commission, there is not sufficient showing of a reasonable probability of a proceeding for anyone to claim... anyone to claim... that they are an interested party.

I don't believe that the commission, the European Commission, could come in and say--

Justice Souter: No, but the contemplation of proceeding has got to be present.

Proceeding can be in the future.

Mr. Lynch: --And there has to be some official act that--

Justice Souter: And that's different from United States law.

Mr. Lynch: --That--

Justice Souter: In that respect, you are not a litigant in... in the same sense that you would be required to be a litigant for discovery here.

Mr. Lynch: --Those were the words I was trying to get out in answer to your earlier question, that the Ninth Circuit seemed to feel that although the process in Europe is different than it is in the United States and therefore it might not be exactly right to say we're a party in the context of U.S. expectation, we are in a... we're on a conveyor belt that inevitably turns us into a party if the process continues in its ordinary course.

We don't... there's nothing we have to do to make this into a--

Justice Souter: Unless... unless you get your discovery and say, well, we've learned a lot of interesting things about the other company.

We don't care about an antitrust suit now.

We've got what's valuable to us.

We're not going to initiate a proceeding.

That's what they're worried about.

Mr. Lynch: --But that could happen in... in any U.S. lawsuit.

I mean, the notion that cases can be settled--

Justice Souter: You've got rule 11.

You don't have rule 11 when you're merely in... in the EC and when you're merely in contemplation of litigation.

Mr. Lynch: --Well, with all respect, the rule 11... the notion that we don't have an obligation to the commission to proceed responsibly implies that without rule 11, litigation in the United States would have no... that... that lawyers would be free to do whatever they want to do.

The... the... it's quite clear under the commission's rules and regulations that there is a responsibility.

Justice Souter: Okay.

But is that a responsibility that they can enforce against you in any practical sense before you have initiated a proceeding with them?

In other words, in the case that they're worried about, you... you get American discovery to learn interesting things that as a competitor you want to learn and you drop it there.

Does the EC have a... have a means of, in effect, calling you to book for that?

Mr. Lynch: Well, I think the... I think the answer is there's no rule.

I can't point to a rule that says that, but the EC has plenary jurisdiction to regulate AMD and other firms doing business within the... within the community and they have... they have the power--

Justice Souter: So they can go against them as regulated industries quite apart from their litigant status.

Mr. Lynch: --But... but--

Justice Souter: Is... is that--

Mr. Lynch: --Well, I... I would just say it's like the inherent power of the court to find contempt that... that I don't think the EC has had this problem.

Justice Souter: --Yes, but we don't have contempt power if you're not in court, and that's the problem.

Mr. Lynch: But you... but we are in court.

When we file our complaint with the EC, we're as in court as--

Justice Souter: We're talking about the situation before you file a complaint, the situation in which you are contemplating the complaint.

Mr. Lynch: --I... I--

Justice Souter: There's nothing yet pending.

Mr. Lynch: --I'm sorry.

I misunderstood your question.

In our... in our view if you have not filed a complaint with the commission, you're not an interested person and there is not a sufficient likelihood of a proceeding for 1782 to apply.

There has to be in this context--

Justice Souter: So you're adopting a pending proceeding rule then.

Mr. Lynch: --We are saying that whether you call that complaint a proceeding, which... which certainly Intel and the commission say it is not, or whether you call it--

Justice Souter: But there's got to be something pending--

Mr. Lynch: --something leading to a proceeding, that it is a sufficient... it is sufficiently proximate to a proceeding, and I think that was the way the Ninth Circuit tried to sort of straddle the problem.

Chief Justice Rehnquist: --Thank you, Mr. Lynch.

Mr. Lynch: Thank you.

Argument of Jeffrey P. Minear

Chief Justice Rehnquist: Mr. Minear, we'll hear from you.

Justice Souter: Mr. Minear, would... would you take up where... where Mr. Lynch left off?

Do you take... would you take the position that an interested party has got to be a party at least who has filed a complaint?

Mr. Minear: Mr. Chief Justice, and may it please the Court:

Yes, we would agree with the position that an interested party does need to have a pending proceeding.

Justice Ginsburg: This interested person and the proceeding is initiated doesn't have to be the judicial proceeding or unless I was wrong in--

Mr. Minear: If I can go back and... and try and clarify my answer.

There's two questions here really.

First of all, is there a proceeding in which... before a foreign tribunal, and is there an interested person?

In our view, a private person becomes an interested person when there is a proceeding that is going forward.

The... in the case of the tribunal itself, it can, under section 1782, request this information even though no complaint has yet been filed and we think that that is the way that we ensure that there are not actions brought by people who have not taken any action but are simply seeking discovery without any proceeding being present.

Justice Ginsburg: --And you say tribunal, you're talking about the EC because the court of first instance and the ECJ would not be asking for material.

Mr. Minear: That... that's correct.

And I'd like to make three basic points.

Justice Scalia: Before you do that, explain what you've just... what you've just said.

It seems to me that there is no proceeding before a tribunal here yet.

Mr. Minear: We disagree with that, Your Honor.

Justice Scalia: You... you think that... that the... the commission is a tribunal even in the preliminary stages when it's investigating and... and is... has... is not adjudicating?

Mr. Minear: Yes, we think it... it is and we can point to several reasons why that is the case.

First of all, a textual reason, that the statute itself, section 1782, makes reference to proceedings before a foreign tribunal, including criminal investigations before formal accusations.

Justice Breyer: Yes, but that's... that's... there are criminal investigations in most countries other than Britain and the United States where the investigating magistrate is a judge.

Mr. Minear: That's correct.

Justice Breyer: Of course, they're a tribunal.

The key things here is that the people here are investigators who do not think of themselves as judges.

They are not judges.

And in addition, the proceedings are not adversarial, nor are they adjudicative in any sense.

And that is all the difference in the world between... you're talking... you think you could bring a... all we have is an investigation in France by the police judiciaire.

Mr. Minear: No, Your Honor.

Justice Breyer: And suddenly we're going to... we're going to start getting all... I mean, no.

It's a big difference whether it's a magistrate, a... you know, a judge.

Mr. Minear: Your Honor, I think part of the confusion here is the procedures that are actually in place by the European Commission.

In that regard, I suggest that the Court take heed of the notice concerning the filing of complaints that's cited on page 13 in note 3 of AMD's brief.

That's an 80-paragraph document that describes the procedures that the European Commission follows--

Justice Breyer: Well, I read through some, my clerk read through some, and I ended up by thinking there are some that are rather like the FTC, but then there are a certain number that are really very different.

And the thing that struck me as pretty critical is just what I said.

They do not think of themselves as judges.

They are... do not think of what they are doing as adjudicatory, and they don't even have a way of walling off, as we do, the investigators from the adjudicators.

Now, there are certain similarities too.

But where we have similarities and major differences, maybe we should pay attention to what they want to call themselves.

Mr. Minear: --Perhaps, but I would point out the similarities to an adjudication before I... I move on to answer that question.

First of all, a party that files a complaint does not simply send a letter in.

Instead, they must use the complaint form that's described.

They must set forth all of the information that they have available, and they must establish that they are an interested party.

A legitimate party I think is the term that's used, which is essentially the same as a standing requirement.

There's then proceedings in which they participate before the European Commission, ultimately leading to the commission issuing a letter indicating a preliminary decision.

They're allowed to respond to that as well.

And at that point, the commission then must make a choice.

Chief Justice Rehnquist: Proceedings in which they participate before the commission.

How do they participate?

Mr. Minear: Primarily by submitting written documents, by responding in written form.

It's my understanding there is no hearing before the commission in that first stage, but ultimately there is a decision that's produced by the commission that is... must include reasons for their decision, and that is judicially reviewable.

Now, that entire process bespeaks, to a considerable extent, of an adjudicative type proceeding.

But even if it's not, it's at least in preparation of what will then be one of two certainly adjudicative proceedings.

One is the review by the court of first instance, or in the alternative, if the commission decides to go forward with the complaint, a proceeding in which a statement of objections is then lodged against Intel.

My point in describing all this is just to emphasize that Congress used very broad language here in terms of a proceeding before a foreign tribunal because it realized that there's a vast and uncatalogued variety--

Justice Breyer: It sort of sloughed over a point I think was pretty critical.

I mean, if the commission itself is not proceeding... not a tribunal, which I... you dispute, but if I were to disagree with you about that, I would certainly agree with you that the court of first instance and the further reviewing courts are.

But there you run into the statement in that D.C. case that I referred to earlier which there must be reliable indications of the likelihood the proceedings will be instituted within a reasonable time.

And as to those further court of first instance, the reviewing court and over in the ECJ, then... then... do they meet that criterion?

Mr. Minear: --Well, that's a question, it seems to me, that goes to the district court's discretion, determining whether or not to allow the evidence.

That's not a statutory criteria that you're citing to, but rather I believe that the D.C. Circ was indicating a matter that informs the discretion.

The statute--

Justice Breyer: And it would be within this statute even if the only indication we had whichever... there would ever be a case is there's 1 chance in 50 that there will be a case 18 years from now.

Mr. Minear: --Well, it's--

Justice Breyer: That would fall within this statute and it's just some kind of discretion that keeps it out.

Mr. Minear: --The district court has to make that judgment of whether or not the action--

Justice Breyer: Even in the example I just gave?

Mr. Minear: --Well, in the example you just gave, there's been a complaint that's been filed and one of two things... I can say one of three things will happen.

Either a complaint will be denied... ultimately will be denied, in which case there will be an action before the court of first instance, or else there will be the... the commission will go forward with the complaint, in which case there will certainly be an adjudication against Intel, or AMD would withdraw the complaint for some reason that we don't know about.

Those are the only three alternatives.

So certainly under the decision of the D.C. circuit, I think that a... proceedings are in reasonable contemplation, or at a minimum, at least that issue ought to be placed before the district court in the exercise of its discretion.

Justice Breyer: You want 800 judges to review this even in the extreme case I mentioned, and unless... as long as you can find some in your favor, you can just go file a complaint over there and get all your competitors' documents and put everybody to about $5 million or $6 million worth of costs, et cetera.

Mr. Minear: By no means at all, Your Honor.

As we indicate in our brief, we believe that rules of... supervisory rules of practice can be developed by the courts to contain and channel the district court's--

Justice Kennedy: And what's our authority to do that?

Mr. Minear: --The authority is the type of authority that is described in Thomas v. Arn.

It's simply that the Court has... has authority to supervise the activity and provide guidance to district courts in the exercise of their discretion.

Chief Justice Rehnquist: Yes, but how... how are we to know what guidance to provide without a great deal of experience one way or another in... in the lower courts?

Mr. Minear: Well, we agree with that as well, and we think that type of guidance at this stage would be premature.

We suggested the Court take this case to resolve the circuit conflict on a question of statutory construction.

Chief Justice Rehnquist: And so now we go back to the 800 district judges and their discretion even in the kind of rather extreme case that Justice Breyer describes.

Mr. Minear: Well, Your Honor, the district courts have been at work at this area and there are about 20 cases now over the past 40 years in... that have construed section 1782, and they... those cases do provide guidance.

We think that the question... the primary question this Court needs to answer is, is there a rule of foreign discoverability?

And we submit that there's no such rule evident on the basis of the statute--

Justice Kennedy: But it's... it's an odd reading of the statute that we have these discoveries for use in a proceeding in a tribunal and the tribunal said it isn't for our use.

It's counterproductive.

Mr. Minear: --Well, Your Honor, I think--

Justice Kennedy: How can that be for use if it's counterproductive?

Mr. Minear: --Your Honor, we need to pay close attention to what the commission said and what it did not say.

Our view is if the commission does not want this information, then that's a very good reason for the district court to deny discovery in this case.

The court has not said... the commission has not said it would not use this information, which is quite a different matter.

If the commission said that it will simply not use this information, then that is a reason why section 1782 should not apply.

The information would simply not be used in the proceeding.

But we think that the... the circumstances here are far less certain.

I should point out that this matter has gone back down.

The issue... a mandate was issued while the petition for certiorari was pending.

And the magistrate judge has issued a preliminary order that the district court has not reviewed yet, which has limited the amount of discovery that would be available.

And in that course of that decision, the magistrate judge did point out that it was not clear whether this information... whether the commission had not made clear whether or not the information would be wanted or used by it.

That was... there was uncertainty--

Justice Breyer: Now, given their brief in this, which seems to me could not be more clear--

Mr. Minear: --The--

Justice Breyer: --and your belief that looked what happened, what we have even this court granting some discovery, even though the principle is they shouldn't--

Mr. Minear: --But that issue--

Justice Breyer: --then what are we supposed to write that makes real what you--

Mr. Minear: --Your Honor, first of all, I think you... you need to resolve the issue of statutory construction on the rule of the question of foreign discoverability.

And we've explained our views in the brief on that.

Rebuttal of Seth P. Waxman

Chief Justice Rehnquist: --Thank you, Mr. Minear.

Mr. Waxman, you have 3 minutes remaining.

Mr. Waxman: Thank you, Mr. Chief Justice.

The brief, amicus curiae of the European Commission, states that what it wants is reversal.

It wants reversal of the decision that sent this back for a discretionary, 1 of 800 judges' factor-by-factor balancing.

Now, everybody considers... Justice Souter, with respect to your question about how difficult it might be to determine foreign discoverability, everybody agrees that's a relevant factor.

So the question is going to come up in even more instances if you don't announce a rule, either by construing interested person or proceeding or for use in, that somehow channels the discretion of district judges.

Justice Kennedy, pages 36 and 37 and particularly footnote 18 of our blue brief provide, we think, the authority for instances.

But it's basically saying the way you do when you decide cases involving discovery under rule 26.

There are certain instances in which, since we know what the statute... there's no doubt about the purpose of the statute, it will always be an abuse of discretion.

Now, with respect to the question of whether this is isn't a tribunal or how soon a tribunal has to occur, AMD acquiesced, and this is a point made in footnote 2 of our reply brief on page 3.

They acquiesced... and this Court granted cert on the second question presented... on the assumption, as the lower court found, that there is no proceeding before a tribunal now.

Otherwise, the question of whether the D.C. Circuit's interpretation of how soon it had to be or the Second Circuit's interpretation would have been presented.

Similarly, this morning is the first time that... that AMD has argued that it was in... that it is, in fact, a litigant.

It has always argued that you shouldn't read the interested person to require litigant even in the private context because it's only in the title.

It's only showered throughout the legislative history, but it's not in the text.

But the question of when something is a tribunal or when it isn't may determine, as this Court's questions this morning suggest, lots of very, very fact-specific determinations that have to be examined perhaps on a case-by-case basis, although we would argue that where the, quote, tribunal itself says we're not, a court ought to accept it.

But if you simply interpret interested person or interpret for use in in the context of a request by a private party before there is any proceeding, that where the request is by an entity that has no rights of discovery at all, not to documents, not to testimony, not at the first stage, not at the second stage, and not in any subsequent judicial proceeding, we can simply cut this off.

It will always be abuse of discretion to come to the United States and try and get discovery when you're trying to aid a tribunal that doesn't now and never will allow you to get any discovery.

Chief Justice Rehnquist: Thank... thank you, Mr. Waxman.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The Oyez Project

Featured:

Doe v. Chao - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

Doe v. Chao

Media File:

02-1377_20031203-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jack W. Campbell Iv

Chief Justice Rehnquist: We'll hear argument next in No. 02-1377, Buck Doe v. Elaine Chao.

Mr. Campbell.

Mr. Iv: Mr. Chief Justice, and may it please the Court:

In this case, it is undisputed that petitioner Buck Doe suffered an adverse effect, the emotional distress typical of a privacy invasion caused by the Department of Labor's intentional and willful violation of the Privacy Act.

The only question is whether under these circumstances, petitioner is entitled to recover the Privacy Act's modest $1,000 statutory damages remedy.

Justice Souter: Before we go further, could you help me out on one thing?

You spoke of the modest $1,000 recovery.

The argument is made on the other side that, in fact, it would be $1,000 for every publication in this case, for example, for every caption of a... of... of an order that went out, to everyone to whom that order was sent, so that it would not be $1,000, it would be many, many thousands.

Is that the proper construction of the statute?

Mr. Iv: The answer to that is no, Justice Souter, and let me answer that in at least two ways.

First of all, the District of Columbia Circuit has already held that the number of... that the $1,000 is key to each individual and not to the number of disclosures.

For example, in the Tomasello case in the D.C. Circuit, there was a simultaneous disclosure of information about a single individual to some 4,000 recipients.

That court held--

Justice Souter: Okay.

Mr. Iv: --and I think correctly, that that would be considered one disclosure under the act and, thus, the individual would be entitled to only a single $1,000 recovery.

Justice Souter: What if... what if there had been an initial disclosure and he had protested it?

He said, you're violating the statute when you do this and they did it again.

Would that be a separate offense?

Mr. Iv: That's a closer question... it... because then you... you've got the... the temporal separation that did not exist in the Tomasello case.

Justice Souter: Yeah, but you'd have temporal separation if there were 10 pleadings over a period of 10 months.

Mr. Iv: But--

Justice Souter: And I take it in that case you're saying, no, there would still just be a... a... a one violation and... and the maximum recovery, at least under this provision, would be 1,000.

Mr. Iv: --I... I... I think that's right, Justice Souter, and I want to make clear too that for each of those disclosures you're describing, there would have to be an adverse effect described and... and a causation element met in each of those in any case before you even got to the question.

Justice Breyer: But suppose the IRS--

Justice O'Connor: --But that's so easy to establish, as shown here.

I mean, it bothers me that somebody else knows my Social Security number.

You don't think that's a realistic reason for not assuming application of the statute, do you?

Mr. Iv: I... if I understand your question, Justice O'Connor, the answer is, yes, there is a real harm suffered here, and adverse effect is not a meaningless standard.

And in this case, you don't just have a situation in which Buck Doe... it's obviously a pseudonym... just alleges, I was harmed.

This is a case in which he submitted an affidavit, and more importantly, testified in open court as to the severity and veracity of his emotional--

Justice O'Connor: Well, but wouldn't--

Mr. Iv: --and was cross-examined.

Justice O'Connor: --wouldn't every person who wanted to make such a claim make similar allegations?

Is a class action a reasonable possibility in a case like this?

Mr. Iv: Let me answer both parts of your question.

As to the first part, I... I don't think we can presume that plaintiffs are going to make up an adverse effect.

They are certainly under the obligations to testify truthfully, and in this case, the Government had every opportunity that... to... and did cross-examine Mr. Doe as to the veracity of his adverse effect.

The magistrate found as a matter of fact he did suffer an adverse effect, the district court adopted it and the Government never appealed that finding, so whatever arguments they have at this point are gone.

Second part of your question, class actions.

That's certainly the parade of horribles that the Government is trotting out here, and I think perhaps, Justice Souter, may go more... more directly to your question as well.

The answer is no.

Even if an individual who has suffered an adverse effect caused by an intentional or willful violation of the act is entitled to a statutory damages award without being required to quantify actual damages.

There are still at least two individualized issues that will exist in every case.

One is the pleading and proof of the adverse effect, which necessarily may vary among different plaintiffs.

Second is the causation, and particularly in the causation question, Justice O'Connor, this is not a... a standard that... that plaintiffs lightly leap over.

In fact, there are a number of cases, one of which is the Oroquoia decision of the First Circuit, which was handed down while this petition was pending, noted that in cases where the... the adverse effect alleged is a... an emotional distress-type problem, you may well run into causation problems.

There could be any number of other stressors in this person's life.

Justice Scalia: Let's assume that somebody wrongfully and intentionally releases Social Security numbers, you know, just... just a whole bunch of Social Security numbers of their... their entire list.

They sell their... their list to somebody.

Why wouldn't that be a perfectly valid class action?

Every one of them has had the adverse effect of having his Social Security number out there, and every one of them has this same adverse effect, which is the, I don't know, the trauma of knowing that... that your... your Social Security number is floating out there where anybody can use it.

Why wouldn't that be a perfectly good class action?

Mr. Iv: Well, I... I think that the example you give, the problem remains, particularly one of causation.

Some folks may not have an adverse effect, they may not be concerned, I think, particularly if you're describing a case in which it's only the number that's released but the number's not linked to a name.

I think in those cases you might have difficulty.

Justice Scalia: Those numbers are... are linked to names.

Mr. Iv: I'd still go back to the... there's a causation problem.

If... if you're going to talk... that is an individualized issue.

Now, I--

Justice Ginsburg: May I ask, with respect to that, you brought this case.

I mean, you tried to get it certified as a class action and you were unsuccessful.

So I... I hear you telling this Court, we were way off-base in attempting to bring this as a class action because the adverse effect is different for each person.

So you're giving up on your first loss.

I mean, there are other circuits that might say, yeah, why not class action?

Mr. Iv: --I don't... I don't... I don't contend that there aren't arguments to be made.

What I am stating here is that there are some very strong--

Justice Ginsburg: But you say you lost fair and square, and now you've seen the error of your ways?

Mr. Iv: --Well, we lost fair and square and I... and I want to point out too, I want to give another example of a case, and it's one of the cases that the Government cites in its brief as the example of... of this... this problem, and that's the Schmidt case that is pending in the Western District of Wisconsin, which involves a putative class action against the Veterans Administration.

In that case, the Western District of Wisconsin held, and this has been since cert was granted in this case, held that, if you prove an adverse effect caused by an intentional, willful violation of the act, you are entitled to statutory damages of $1,000.

Nonetheless, that district court refused to certify a class on precisely the grounds that I am describing to you today.

So is it conceivable there could be a class action in a case?

Yes, it's conceivable, and I do--

Justice Breyer: But even if they're not class actions, I have, I think, the same problem people have expressed.

In Massachusetts, we put our Social Security number on our driver's license.

I have it right in my pocket.

I show it 10 million times a day, or however many.

So suppose that, you know, the IRS releases... California wants to do the same thing.

They have 35 million drivers, and the IRS sends them a list so they can check it out, or the Social Security Administration does that and, my God, there's 35 million lawsuits, $1,000 each, that's only 35 billion.

Suppose they do it nationwide.

There's 200 billion, and that's only Social Security numbers.

All you have to do is read through these 14 pages of fine print of the requirements of the Privacy Act, certain days have to be met, certain deadlines, and it's very easy to imagine bankruptcy in the Federal Treasury.

All right.

So, I mean, you know, trillions, it's easy to see that.

I can make up hypotheticals, which I'll spare you, but you see where I'm going, because what I want is that is the horrible.

And when I read the horrible, I think, my God, they're right.

All right.

Now, you tell me why they're not.

Mr. Iv: --In the hypothetical that you're proposing, Justice Breyer, I think there are several answers.

Justice Breyer: And just make up, you know, it's easy for both of us to make up a lot.

Mr. Iv: Sure.

Justice Breyer: I want to know what are the protections if you win against generating millions and millions of lawsuits with billions of dollars.

Mr. Iv: In... in the hypotheticals that you've described, if I could take those on their terms first.

It's very likely that one of the exceptions to the Privacy Act disclosure is going to apply usual... if it's the case that... that this is a working relationship between the Federal Government and various state governments and the like, that may well fall within the usual use.

There are a number of these exceptions listed, so certainly you have to look to those first.

Have to go... go back to... this would have to be intentionally wrongful conduct by the Government--

Justice Breyer: Well, yeah, I can't imagine any government agency that takes place that isn't intentional.

You always have people intending to do what they do in the Government.

Mr. Iv: --Certainly, well--

Justice Breyer: Nobody released these... nobody... nobody puts anything on a piece of paper, releases it, isn't intentional.

Mr. Iv: --Certainly the... the intent to release the... the information would be correct, but that's not the same as to say there was an intent to violate the Privacy Act.

Justice Breyer: Ah, in other words, in order to recover... now, that's an important point to me... in order to recover, the plaintiff has to show that the government individuals or the agency not only intended to do what did violate the act, but they intended that what they did would violate the Act.

They knew about the... that's willful, it's like they knew about the legal obligation and they intentionally violated it.

Mr. Iv: That's correct, Justice--

Justice Breyer: Well, then, how did you ever win this one?

Chief Justice Rehnquist: That's... that's... that's a very strong--

Justice Breyer: --Yeah, very strong.

Chief Justice Rehnquist: --instruction.

Ordinary... ignorance of the law is... is no defense, and there are all sorts of statutes that use the word willful, which simply means that you intended to do the act that you did, not that you knew it violated the law.

Mr. Iv: --Well, in... in this case... I... the consistent constructions of... of the Privacy Act is it's... it's greater than gross negligence.

It... it necessarily encompasses more than just I intended to do something.

It's that I... I willfully blind to my obligations in the--

Justice O'Connor: Well, how about this case?

How... how was that shown in this case?

Mr. Iv: --In pages... if I could point the Court to pages... bear with me for one moment... pages 90... 96--

Justice O'Connor: This was a... this was a distribution by administrative law judges--

Mr. Iv: --That's correct.

Justice O'Connor: --of hearing notices and decisions?

Mr. Iv: That... among other things.

The answer is yes, Justice O'Connor.

On pages 96A to 97A of the petitioner's appendix, there is the description of the magistrate judge's finding that there was a willful violation of the Privacy Act here and that there was a... there was no attempt even... no even attempt to comply with the act's requirements, and I... I would point--

Chief Justice Rehnquist: But to say there's no intent to comply isn't the same thing as saying that you knew you were violating the act when you acted.

Mr. Iv: --Well, let me amend my answer in this way, Mr. Chief Justice.

A willful ignorance... a willful ignoring of the act's requirements would qualify as a willful... and I... I want to--

Chief Justice Rehnquist: Well, how can you... how can you willfully ignore an act's requirements?

Mr. Iv: --Well, the Department of Labor was well aware of what the Privacy Act's requirements were and made no attempt to get the administrative law judges to comply, and... and I want to go back here this... to one of the answers I gave with respect to your adverse effect questions.

This issue was decided by the magistrate judge, adopted by the district court, and this was never appealed by the Federal Government.

Justice Breyer: Well, but our concern--

Chief Justice Rehnquist: --We're concerned here, Justice Breyer and I guess... what is going to happen if we rule in your favor?

That will probably not result in any benefit for the Government on this ground, but are we just opening a can of worms or is... by ruling in your favor?

Mr. Iv: The answer is no, and... and certainly I acknowledge, Mr. Chief Justice, and Justice Souter and Justice Breyer, that in future cases there might well be a lot more time spent litigating the issues of whether there was an adverse... truly an adverse effect and whether... and... and whether the... the violation was truly intentional and willful.

But I want to--

Justice Souter: Okay, but can... can we just go back to that for a second?

Mr. Iv: --Sure.

Justice Souter: Because we've been concentrating on willful, and you say, well, willful requires a very high standard.

As... as you just indicated in your answers, the statute doesn't require willful.

It requires intentional or willful.

Mr. Iv: Or willful.

Justice Souter: And it would be even more remarkable to construe the... the term intentional as requiring conscious disregard of... of a known statutory obligation.

Mr. Iv: Let... let me answer this way in response, and maybe it will... will help ease the concerns.

For 22 years, the interpretation of the Privacy Act that petitioner offers today has been the law of the land, and in that--

Justice Souter: Do you have a case that says intentional standing alone must be construed to include this conscious disregard of a... of a known legal provision?

Mr. Iv: --I can't cite a specific case for that proposition, Justice Souter, but I again go back to we were talking about intentional or willful, it's a high burden under any concept of what intentional or willful will be, and for years, for 22 years, from 1975 to, at the earliest 1997, when the Sixth Circuit decided the Reno case, the interpretation that I am offering this Court is the one that the courts of appeals had unanimously adopted, and never in those 22 years had the kind of parade of horribles that the Government posits in this case materialize.

Indeed, if anything, if you look... there is a... a reporter that lists every single case decided under the Privacy Act since 1975.

Justice Stevens: But have any of those cases involved disclosure of Social Security numbers?

Mr. Iv: None that I recall.

That seems to be a relatively new--

Justice Stevens: See, this seems to me a particular kind of disclosure that might happen over and over again in a very casual way.

Mr. Iv: --I... I submit, Justice Stevens, if it happens in a casual way, that's not going to provide anyone with a cause of action.

Justice Stevens: Well, pursuant to a policy such as they had here of that's the way they use to identify... driver's license they use it on, the Holiday Inn uses it for their social... all sorts of people use Social Security number for another purpose.

Mr. Iv: That's true.

It's certainly true that Social Security numbers are used for other purposes.

But what is clear from this statute is that Congress was specifically focused on concerns about Social Security numbers being disclosed and the adverse effects that can result from that.

Justice Breyer: That... that may be true.

What's bothering me, which may be the same thing, as Justice Stevens says, is that I might have thought that a Labor Department official could reasonably think, I have a list of 50,000 people here, several are named John Smith, I want to be sure we get the right ones so I'll put the Social Security number as identifier.

That doesn't on its... on its face seem like such an unreasonable thing to think, even if it's wrong.

And... and yet we have here a finding that not only is it wrong, but that it's intentional and willful, and that's what brings up the problem you come to argue, and I don't know how to deal with it, because I think, well, if this statute, intentional, willful really means the tough thing that you say, well, then it'll work, then you're right, there won't be a horrible.

But then I see this case, which seems to me to stand for the proposition that that tough standard isn't being applied.

And then I think, my goodness, you're opening the door to the horribles and... and I don't know how to do it because the other part isn't being argued.

That's my honest dilemma.

I put it to you.

Mr. Iv: I... I... I under... I well understand your dilemma, Justice Breyer, and I again go back to, I don't doubt if this... if the statute is given its natural reading, that the $1,000 statutory damages is available to those to whom the United States shall be liable, there will be an awful lot more traction, a lot more fighting over the adverse effect and the particular circumstances that would rise to the level of an intentional or willful violation in the future.

Justice Scalia: Mr. Campbell--

Mr. Iv: That's simply not an issue here.

Justice Scalia: --Really what... what Justice Breyer is saying is... is that this issue of willfulness or not is not in the case and we wish it were, because the answer to that is important.

Could we talk a little bit about what is in the case?

Mr. Iv: Yes, yes, Justice Scalia, thank you.

Justice Scalia: Can... can you tell me what... I... I really have trouble understanding how there can be an adverse effect without actual damage.

That's a very strange line.

I mean, in... in the Administrative Procedure Act, you talk about any person adversely affected or aggrieved, and that's a person who suffered damage.

It seems very strange for Congress to use language that... that sets up two different categories, adverse effect on the one hand, and actual damage on the other.

When... when is there an adverse effect without actual damage?

Mr. Iv: I think there frequently can be an... an emotional harm that is not quantifiable in dollar terms--

Justice Scalia: Well--

Mr. Iv: --and that's very common in the law.

Justice Scalia: --That doesn't mean that it's not actual.

It just means that it's hard to quantify, but you've had the emotional harm.

Why isn't that an... why isn't that actual... actual harm?

Mr. Iv: I... I want... I... I agree with you that that is an actual harm, and I think that's one of the things that the Government is... is trying to cloud the issue a bit in this case, and that is to equate actual damages and actual harm.

I submit they are different, that the... in... in interpreting the statute, the deliberate use of a term adverse effect and the deliberate use of a term actual damages, those must be given different meanings.

Justice Kennedy: Well, do you agree that, or do you contend that adverse effect include... includes emotional distress and that you have to show something like emotional distress before there is an adverse effect?

Mr. Iv: Yes, yes indeed, Justice Kennedy, and that is indeed the unanimous position of the Federal courts on that question.

Justice Souter: What... what do you say about the position of the... which I understood the circuit to be taking that, on the assumption that there... there was some emotional damage, at least in the sense that the... the man said, I was very upset when I heard that the number was out.

Assuming that, I thought the Fourth Circuit was saying, there is a category of harm that is generally non-compensable in the law, and we assume it ought to be non-compensable here, and that category is emotional damage, which has no physical manifestation.

And the general policy behind that is, we don't allow generally, tort law doesn't allow recovery there because it's too easy to fake.

And the Fourth Circuit, I thought, was saying, you know, whether you're talking about damage or whether you're talking about effect, this is an effect that the law simply doesn't generally recognize and it shouldn't be recognized here.

That's a different issue from whether it can be quantified or not.

What the circuit was saying is, you don't even get to the point of proving quantification.

What... what is your response to that?

Mr. Iv: If that is indeed what the Fourth Circuit's position is, it's squarely wrong.

At common law and intentional torts generally, and in privacy torts specifically, this type of harm is compensable in some at least minimal way, even if it cannot be quantified, and I think that's why--

Justice Souter: What about... even if there is no physical manifestation?

Mr. Iv: --Even if there is no physical manifestation.

Indeed, I submit, Justice Souter, it's... there's nothing surprising about the overall remedial scheme here, because it does track what happened at common law and intentional torts and with respect to intentional privacy torts.

In fact, the Privacy Act is more strict even than what was required at common law.

At common law, even no damage at all, no... I'm sorry... I don't... I don't want to get back into the confusion over the terms.

Even if there was no harm at all, there would be still be some at least minimal award, recognizing the invasion.

Justice Souter: Sure, because privacy--

Mr. Iv: Here you have to put--

Justice Souter: --I mean, in your... I understand your privacy argument, but that's because the invasion of privacy or the infringement of privacy is regarded simply as... as injury per se, and... and I thought the circuit was saying, that's not what we're dealing with here.

But you're saying, what, privacy is privacy and... and--

Mr. Iv: --Well, I... I want to--

Justice Souter: --But it's... but if that is so, then let me just get to my question.

If that is so, why did the statute go into speaking of actual damage at all?

Why didn't the statute simply say, if they invade the privacy by publishing something they shouldn't publish, you get at least $1,000 regardless.

But that's not what it said.

It's keyed it to actual damage, and it said, if there's actual damage, the person entitled to recovery for actual damage gets at least 1,000, which is something quite different.

It does not take the position that it's a per se compensable harm.

Mr. Iv: --Well, I... I, of course, disagree with your characterization of what subsection (A) in fact says, but let me go back to first part of the answer.

We are talking about an adverse effect, so we are talking about having to prove a harm.

We're not just talking about the ability to vindicate a privacy interest in the abstract.

You can certainly do that at common law, and Congress could have written a statute that allowed you to do that under the Privacy Act.

It didn't.

It did at least require that you demonstrate an adverse effect and real harm.

Justice Kennedy: And what... can... can you... and this goes back to Justice Scalia's initial question, what is the difference in adverse effect and actual damage?

Mr. Iv: The difference is the ability to quantify the harm in some dollar amount.

Justice Stevens: Yes, but if that's... if that's the case, I don't see why the risk of being subjected to identity theft would be increased by the disclosure of your Social Security number, and if that's true, and I think some people could prove the risk is increased, that would be true of every release of every Social Security number.

Mr. Iv: I... I... I would certainly agree that there is a real risk of identity theft any time there's a disclosure of a Social Security number, particularly as here when it's linked directly with the name.

Justice Stevens: So does it not necessarily follow that every one of those releases causes an adverse effect?

Mr. Iv: I don't think it is.

There could be... there could be people who aren't bothered by that or who don't share that fear.

Justice Stevens: Whether they're bothered about it or not, they're... they have an increased risk, just if you increase your risk of death, maybe they're not aware of it, but it's still an adverse effect.

Mr. Iv: Well, I do not contend that the Privacy Act is a statute that... that compensates in some way for merely increased risk.

I think that does go back to the adverse effect here.

You do have to have some sort of harm that actualizes, and here it did actualize in his real emotional distress about the disclosure.

Justice Scalia: Well, I mean, that doesn't answer it.

The harm does actualize, as you say it, once the Social Security number is released, the harm actualizes.

You're at greater risk than you were before.

That's... that's actual as can be.

Mr. Iv: I can't support that interpretation of the act, although candidly, it... it probably would be a better one for plaintiffs in the... in the run-of-the-mine case.

And the reason is this: If the... if the disclosure itself is the adverse effect, what happens is that the causation language in subsection (g)(1)(D) becomes superfluous, and I am being careful to the... the text here--

Justice Stevens: Well, it's superfluous with respect to Social Security numbers, but the statute covers a whole range of activities other than this particular case.

Mr. Iv: --Absolutely, Justice Stevens, and I... I... but I'm not sure... I... I don't think the answer is that it would be just superfluous with respect to Social Security numbers.

In every case, if the release of any information, let's say it's a medical record, not a Social Security number.

If the release itself is the adverse effect, the problem is that does not... that does not hew to the... the causation language contained in subsection (g)(1)(D).

Justice Stevens: Well, the release of medical information doesn't necessarily increase the risk of any particular harm.

But this particular information does increase the risk of an identity theft for everybody.

Mr. Iv: It does increase that... it does increase the risk--

Justice Stevens: It is not true if you say, well, you're taking aspirin three times a day or something like that.

So what?

But this is not a so-what situation.

Mr. Iv: --No, it's a... I agree, Justice Stevens.

It does increase the risk, but... but for some people, that increased risk may not cause them an adverse effect, the personal adverse effect.

I would like to reserve the remainder of my time for rebuttal, if I may.

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: Very well, Mr. Campbell.

Mr. Stewart, we'll hear from you.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

I'd like to begin by discussing the distinction as we see it between the terms adverse effect and actual damages.

And as one of Justice Scalia's questions indicate, the term adverse effect is not one that originated in the Privacy Act.

It's... it's a term of art.

The general judicial review provision of the Administrative Procedure Act grants a right of action to persons adversely affected or aggrieved, and I don't think it's the case that a plaintiff under the APA needs to show that he has suffered the type of harm that would ordinarily be compensable in damages.

Because the APA excludes money damages as an available item of relief, the typical inquiry in... under the APA in determining whether a plaintiff has standing is whether he is likely to suffer harm in the future, not whether he has been harmed in the past.

And if we had a hypothetical APA suit, for instance, challenging an ongoing or imminent program by which the Government intended to release Social Security numbers, and a particular plaintiff could show there is a likelihood that my own Social Security number will be released in the near future, I think that would be sufficient in and of itself to establish that that person was adversely affected or aggrieved within the meaning of the act.

He would be suffering a... a violation of his legal right to have information about him maintained within the Government's files and he would also suffer at least an increased risk of identity theft.

That would be enough to get him into the... into court to seek prospective, injunctive, or declaratory relief.

But those certainly wouldn't be the types of harms that would ordinarily be compensable in damages.

Justice Scalia: Well, but that... but that's not the question.

It... it... the point is it's... it's not only enough to get him into court, which is what it is said adverse effect does here, it is enough under the APA to give him judgment.

He wins.

Mr. Stewart: He wins--

Justice Scalia: It... it is enough to give... to make his claim a valid... a valid claim.

Mr. Stewart: --He... he wins but--

Justice Scalia: And the reason he can't get money damages has nothing to do with the magic words, adversely affected.

It has to do with simply the fact that money damages are not available under the APA.

Mr. Stewart: --But--

Justice Scalia: But he wins under the APA.

Mr. Stewart: --But the fact that a plaintiff can win under the APA and, in our view, can't win under the damages provision of the Privacy Act simply reflects what is implicit in the APA's exclusion of money damages as an available item of relief, namely the view that agency action should ordinarily be reviewable in court, and plaintiffs who can show that they would be injured by unlawful government conduct in the future should ordinarily be able to get a judicial order decreeing that that not take place.

But plaintiffs are not ordinarily entitled to receive money damages from the Government for wrongs committed against them.

Justice Souter: And I take it you're... you're saying here... and they're not here because there's a further requirement of actual damage before they get money.

Mr. Stewart: That... that's right.

Justice Souter: Yeah.

Mr. Stewart: That the damages provisions restricts the availability of monetary relief to a person entitled to recovery, and the phrase, person entitled to recovery, is most naturally construed to mean someone who has not only established a violation of law, but who has established the prerequisites to an award of compensatory relief.

Justice Souter: Why... why did they put that phrase, entitled to recovery, in there in addition to actual damages?

I'll be candid with you that I... I was thinking that maybe they put it in there because they anticipated this... this category of cases like emotional damage without physical manifestations is non-compensable, and that... and that they were trying to leave open that kind fo a condition.

Mr. Stewart: One... one hypothesis as to why the phrase may appear as it does.

The phrase originated in the Senate version of the legislation, and the Senate version said that a plaintiff who establishes a will... an intentional or willful violation can collect actual or general damages, but a person entitled to recovery shall receive no less than $1,000.

And so, in the context of that provision, the phrase, person entitled to recovery, could be a shorthand for person entitled to recover either actual or general damages.

Justice Breyer: Well, he is entitled to recover actual damages if he has any.

Justice Souter: Yeah.

Mr. Stewart: But that--

Justice Breyer: And he's entitled to recover it if he doesn't have any.

He's entitled to recover it, whether he has some or whether he doesn't have some.

So I will... I don't understand, you say the most natural meaning of a person entitled to recovery is a person entitled to recovery who actually has actual damages.

That isn't how I'd normally read it.

I'd... I'd read it somebody who's... who's entitled to get it if he has it.

Justice O'Connor: Well, I guess that's the issue.

Justice Breyer: Yeah, that is the issue.

So I just want you to explain a little bit more--

Unknown Speaker: [Laughter]

Mr. Stewart: --I mean, I think... I think--

Justice Breyer: --about why that's the most natural reading.

Mr. Stewart: --I mean, the more... I think the more natural reading is that a person entitled to recovery is someone who not only has established some of the prerequisites to an actual recovery, namely a compensatory award, but who has established all of them.

And if the only compensatory relief available is actual damages, then a person who hasn't established actual damages is not entitled to recovery.

But even if a plausible argument could be made the other way, then the canon of construction that waivers of sovereign immunity are to be construed narrowly would compel the Court to read it in... in the narrow way.

Justice Stevens: Well, plus... plus the canon that... that you don't give words a meaning that renders them totally superfluous.

Mr. Stewart: That... that's--

Justice Scalia: And if it means what Justice Breyer suggests, you can just leave out the words, a person entitled to recovery.

Mr. Stewart: --Or... or--

Justice Scalia: Just read it, but in no case shall he receive less than the sum of 10,000, of $1,000.

Mr. Stewart: --That's correct.

If... if Congress had intended that any plaintiff who established an adverse effect from a willful or intentional violation would automatically receive at least $1,000, it could have used the word person or individual or complainant, which was... which were the words that Congress used elsewhere in the Privacy Act to describe the individual whose rights had arguably been violated.

Justice Scalia: Or just... just drop entitled to recovery.

Mr. Stewart: Exactly.

Justice Scalia: Shall a person receive less than the sum of--

Mr. Stewart: And the other point I would... we would make in following up on one of Justice--

Justice Ginsburg: --Mr. Stewart, if... and before going to the words of the statute, this... there are any number of statutes that have actual damages and it can say, or the statutory damages, and some of them have this formula, actual damages and person entitled to recover, and then there's shades in between.

Do you... do you really think that Congress, by using those different formulas, meant a different result in what would seem to be cases that don't... are not sensibly distinguished?

Mr. Stewart: --I mean, I think... I think we have to infer that Congress or presume that Congress meant something by the choice of words that it used.

And the phrase entitled to recovery is--

Justice Scalia: A benign fiction, right?

Mr. Stewart: --A benign fiction, that's right.

And I think it is also the cause that the phrase, person entitled to recovery, is used very rarely in the United States Code.

There are a number of provisions along the lines of actual damages or $1,000, whichever is greater, references to statutory damages or liquidated damages.

But the phrase, person entitled to recovery, is very rare and we would presume that Congress intended something specific--

Justice Breyer: All right.

I... I would... rather than do the presumption of what they intended deduced from canons, et cetera.

You assume that it is ambiguous.

You certainly got me there.

I'm... I see it's ambiguous.

And I also believe that Congress did not want to bankrupt the Treasury, destroying Medicare, Social Security, and every other programs we give $1 trillion in damages to people who have the social... I... I... you've got me there.

Now, how do... what they... what your opponents say is that is a made-up problem.

It doesn't... it isn't going to happen, and the reason it isn't going to happen is because these words, intentional or willful, are not used, the word intentional, as it normally is.

It's used in a very special way so that they have to almost... well, you've... now, you've... I'm cross-referencing our earlier argument and I'm at a dilemma here because it's not argued, I don't know how to deal with it, but it seems relevant to the underlying question that is moving me about what Congress intended.

Mr. Stewart: --The petitioner is correct that the phrase intentional or willful has been construed by the lower courts essentially as a term of art, and the prevailing test in the lower courts is whether the agency exhibited flagrant disregard for--

Justice Breyer: Oh, I'm sorry.

The lower court thing that we've looked up uses an or about that, and one of the parts of the or is without grounds for believing the action to be lawful, which means that part of the test, that if we have an ALJ, or we have people in the agency, just never think about it, as they might not in this case, that that cover... is covered by intentional or lawful.

And that's one of the problems I'm having, because it makes me think that that word intentional is a pretty complicated issue, which isn't argued.

It seems to be very important, and I don't know what to do.

Mr. Stewart: --I... I think, with respect to the... the language from the court of appeals' opinion that you quoted, the without grounds to believe that--

Justice Breyer: I have three of them like that.

Mr. Stewart: --Right.

I... I think what the courts are getting at is something at least akin to the standard that would prevail in a Bivens action, where an individual Federal officer was sued, where the question would be, could a reasonable officer in this person's position have believed that what he was doing was legal?

Probably the courts have applied it in a... in a manner that's slightly more deferential to the Government.

In... in... it doesn't mean, however, that the Government has to have been shown either to have intentionally violated the law or to have intentionally sought to bring about harm to the plaintiff.

Justice Scalia: Do we have to decide that in this case?

Mr. Stewart: No, no, I don't think you need to decide that.

Justice Scalia: I'd like a lot more argument on it before I decide that question.

Mr. Stewart: That... that's correct.

Justice O'Connor: Why--

Justice Scalia: --And some briefing on it.

Mr. Stewart: As the case comes to this Court, both parties are in agreement, or neither party contests the proposition that an intentional or willful violation was established.

Justice O'Connor: Mr. Stewart, what has happened in the 28-some years that this has been in effect concerning the amount of recoveries against the Government?

Mr. Stewart: I... I would candidly acknowledge we have not had a problem with enormous recoveries against the Government up to this point.

Justice O'Connor: What happened in the 1990 lawsuit you refer to on mailing of IRS farm... form 1040s, that had a Social Security number and the name.

Mr. Stewart: That... that was--

Justice O'Connor: What happened to that case?

Mr. Stewart: --That was ultimately dismissed on the ground that the Social Security numbers were not records, which is contrary to the general course of the law, which is that Social Security numbers would be... be records.

I... I want to be careful about this because we are not arguing that exorbitant liability would inevitably follow from a loss in this case.

What we are saying is, if we lose this issue and if the word adverse effect is given the same meaning in the Privacy Act that it has in the APA, the Government would be subject to enormous potential liability.

To take an example, following up on one of Justice Breyer's questions, as... as you pointed out, the Privacy Act is not limited to a prohibition on unlawful disclosures.

It contains a range of other provisions that could be best be described as technical or even bureaucratic.

One, for instance, is that when the Government collects information from private individuals, it has to identify, among other things, the source of authority, either a U.S. Code provision or an executive order that authorizes the information to be collected.

And if an agency circulated 100,000 forms and left off the U.S. Code cite, I think, under ordinary APA standards, any person who returned information on that form would be... would suffer an adverse effect, because he would have been deprived of--

Justice Breyer: Yeah, but that won't hurt you if... if, in fact, to show liability here, you have to show that the agency officials who made up that form knew... let's make it really tough... knew that leaving it off was command... putting it on was commanded by the act and they say, ha ha ha, I know it's commanded by the act, but I'm not going to do it.

Mr. Stewart: --I mean--

Justice Breyer: Now, that'll be pretty rare and the--

Mr. Stewart: --It would be rare.

Justice Breyer: --So the--

Mr. Stewart: Well, you could... you could imagine a situation, and we wouldn't condone this... this conduct, but you can imagine a situation in which an agency official gets back the 100,000 forms from the printer and says, oh my gosh, the U.S. Code cite was left off, but then decides, I know we're supposed to do this, but I'm not going to reprint 100,000 forms for something like that, let's circulate them.

We don't condone that behavior.

It would be a violation of law, but it's hard to imagine that Congress would have intended that everybody who fills out information on those forms would then be entitled to $1,000.

Justice Scalia: --Just to try to get this issue out of the case, are you content to have us decide this case on... on the assumption, just for the sake of argument but without ruling, that... that the act requires willfulness in the... in the most extreme sense that Justice Breyer describes?

Are you willing to have us decide the case on that assumption?

Mr. Stewart: Yes.

Justice Ginsburg: You're willing to have us decide what was not... what it was over, that there is an adverse effect?

In fact, the... the Government didn't dispute that, didn't dispute adverse effect, did it?

Mr. Stewart: Not... not as to Buck Doe.

The... the magistrate judge held that each of the plaintiffs had established an adverse effect simply by release of the Social Security numbers, and the district court didn't expressly endorse that view, but didn't reject it either.

Justice Kennedy: Is it your... is it your argument... and I'm glad we're back to the statute... that in order to determine in this case, in this case, whether there was a cause of action, you had to read beyond the adverse effect clause and go down to for... or before... and decide also whether there was actual damages, before there was a cause of action?

Mr. Stewart: You... you wouldn't have to decide whether there was proof of actual damages, but yes, I think if it was apparent on the complaint that there was an adverse effect but no possibility of proving actual damages, then the suit shouldn't be... shouldn't go forward, but--

Justice Kennedy: That... that's an... that's an unusual way to write the statute.

It's unusual to... to write the statute in a way where I don't know if I have a cause of action until I get down to where the damages are defined.

Mr. Stewart: --I... I agree, but I think it would be--

Justice Kennedy: Usually I would say that any person injured is the way we would expect this statute to have been written.

Mr. Stewart: --I agree, and it may be that to... Congress anticipated that questions concerning damages would be resolved at the end of the day, and there would obviously be a lot of cases in which a plaintiff would allege damages at the outset, and therefore, would have a cause of action, but if he failed to prove damages in the... the course of the trial, he wouldn't be entitled to the $1,000, even if he proved that he suffered an adverse effect from a willful or intentional violation.

Justice Souter: But Mr. Stewart, I... I take it that even... even if there was no indication of actual damage, the... by... by pleading the violation of the statute, he would at least have pleaded enough to entitle him to... to ask for a... to ask for equitable relief.

Mr. Stewart: We would say that equitable relief is not, in this context, is not specifically authorized by the Privacy Act.

But we would say that equitable relief would be available under the APA, and the allegation would be that the--

Justice Souter: Okay.

Mr. Stewart: --agency's action was not in accordance with law--

Justice Souter: I... I see.

Mr. Stewart: --because it violated the Privacy Act.

Justice Souter: May--

Mr. Stewart: So... so... and indeed, this suit at the outset included a request for injunctive relief against further disclosures, and the Government settled that part of the case with lightning speed.

There was... the... the plaintiff did obtain a judicial order directing the Government not to continue with its practice.

Justice Scalia: --So indeed there's... there... there's nothing bizarre about letting him get into court just on the basis of... of an adverse effect, because he can win in court on the basis of an adverse effect, not by reason of this act alone, but by reason of the obligations under this Act plus the APA.

Mr. Stewart: That's correct.

Justice Souter: Right.

May I... may I go to another issue?

I mean, one of things that's bothering us is several issues that seem crucial, which we're just having to make assumptions about here, and depending on the assumptions, the scope of liability may... may be enormous.

Here's the one that is bothering me.

The... the Government is not contesting here that in fact there... there was some kind of actual damage, even though it was not quantified.

Mr. Stewart: No, I think we are contesting that.

Justice Souter: Well, I... but... but you're not contesting the fact... let me put it... I... I misspoke... you're not contesting the fact that if he showed emotional damage and emotional damage alone, no physical effects, that that would be enough for recovery if... if a fact-finder said, well, I think the emotional damage is worth $250--

Mr. Stewart: No, no.

We... we are contesting that and--

Justice Souter: --You are contesting that?

Mr. Stewart: --It hasn't really been--

Justice Souter: Are... may... may I ask you just a further question, then you can tell me which... whatever you want.

Are you contesting as a matter of law the sufficiency of this plaintiff's testimony to at least get to the fact-finder on whether there was actual damage?

He testified... I forget his exact words... but he testified, you know, I was so upset when I heard that they had released my Social Security number, I just didn't know what to do or what to say, something like that.

Are you contesting the sufficiency of that evidence to put an issue of actual damage to the fact-finder?

Mr. Stewart: --Yes, and let me backtrack for a second to say that the Fourth Circuit decided that Mr. Doe had not proved actual damages, and the petitioner did not seek this Court's review of that holding, so--

Justice Souter: But they said he didn't prove actual damages because there was no physical effect.

Mr. Stewart: --That... that's right.

There was--

Justice Souter: They didn't say that, as a matter of law, if you don't have the emotional physical effect rule, he wouldn't have had enough to... to get to the fact-finder an actual damage.

Mr. Stewart: --That... that's correct.

My... my only point was, the reason we haven't briefed the question of whether there were in fact actual damages is that our understanding is that, because petitioner didn't seek this Court's review of that aspect of the... the court of appeals' holding, as the case comes to the Court, we're assuming that there were no actual damages.

Justice Souter: And you didn't... you didn't cross?

Mr. Stewart: But... but to answer your... your question about what the Government's position on the law is, our... our first argument is that in the context of this specific statute, the phrase actual damages refers only to pecuniary harm, and we've cited in a footnote a conflict among the circuits with respect to that question, and that... that isn't presented by this case.

Justice Souter: Okay.

Mr. Stewart: But we would--

Justice Ginsburg: Mr. Stewart, may I ask you a question with respect to that?

Suppose this Doe said, I'm very concerned about the impact of this on my credit rating, so I'm going to spend $10 to a credit... credit reporting company to find out whether there's been any theft of my identity, $10.

Would there then be a claim under this statute for actual damages?

Mr. Stewart: --I mean, there... there would be a question of whether that was... whether there was causation, whether that was a reasonable response to the threat, but in theory, an expense like that could qualify as pecuniary harm and, thus, is actual damages.

Justice Ginsburg: But it made... it made me think that if there's ambiguity in this statute, that wouldn't have made much sense for Congress to write a statute like this where, to meet the actual damage requirement, all you have to do is make a $10 expense.

Mr. Stewart: I mean, I agree that it's a somewhat anomalous result that the availability of the thousand can turn on a relatively small pecuniary loss.

It's... it's somewhat analogous at least to the common law rule that punitive damages are available only to a plaintiff who's shown some level of compensatory damages, and there also a plaintiff might be able to contrive a small loss that is compensable, and thereby make himself eligible for punitive damages that far exceed the amount of--

Justice Ginsburg: But it's not just not contrived, because now it's a formula for... for all the people who have this kind of complaint, so I think if that's what... what the line is, then Mr. Doe, is it, all the future Mr. Does will ask to have their credit checked.

Mr. Stewart: --I mean, we would still want to... we would still have to know whether that was in fact a reasonable response to what the Government had did... done... and what the... the threat that it posed to the... the plaintiff.

And even if that kind of machination might be possible in in one category of cases, it would still not be possible in a lot of other categories of potential... of Privacy Act violations.

To continue with my answer to Justice Souter's question, the... the second thing we would say about the emotional injury is that, even if some emotional harms were compensable as actual damages under the statute, we don't think that the particular emotional harm alleged here would be, because a Social Security number, unlike, for instance, intimate details about a person's family life, is not inherently private or secret or confidential.

It's not the sort of information that would cause a person to say, I would be horrified to think that somebody else knew that even if I could be sure that that person wasn't going to misuse it against me.

The... the reason that people are worried about release of Social Security numbers is that that release may lead to some further, more tangible harm, identify theft or--

Justice Souter: So you're saying as a matter of law, this is just what he testified to is simply too de minimis to be considered evidence--

Mr. Stewart: --That--

Justice Souter: --sufficient evidence.

Mr. Stewart: --That's correct.

And we've cited the Metro-North case in our brief, and I think that the harm... the emotional harm that he's alleged is really... really very similar to the fear of cancer as a result of asbestos exposure that was held not to be compensable in the absence of some current physical impairment.

So to... to... follow up on this and make our position absolutely clear, we are saying that if the term adverse effect is given its usual meaning, and every plaintiff who establishes an adverse effect from a willful or intentional violation is entitled to $1,000, that the potential financial consequences would be enormous.

Now, I would say in all candor that if we lose this case, it's quite possible that the Government would argue in the lower courts that to protect the public fisc, the... the phrase adverse effect should be given a narrower construction under this statute than under the APA.

But our basic point is--

Justice Stevens: May I ask, with respect to the parade of horribles that we're confronted with, is I... it's my understanding that there are several other statutes under entirely different statutes, they have the similar provision but they're clearly worded in a way that says, if you get anything, you'll get the minimum, and... but it's the position that your opponent contends is the proper reading of that statute.

There are several such statutes, am I--

Mr. Stewart: --There are a lot of statutes with wording, for instance, to the effect of a plaintiff who establishes a violation will receive actual damages or $1,000, whichever is greater.

Most of those don't apply to suits against the United States--

Justice Stevens: --And... and--

Mr. Stewart: --but there are many such laws.

Justice Stevens: --And most of those would not require proof of actual damages?

Mr. Stewart: That's correct.

Under the plain terms of the statute, the plaintiff would get the 1,000--

Justice Stevens: Why in your view did Congress come up with a different formula in this case than it has in that... in the pattern of statutes that those represent?

Mr. Stewart: --I'm... part of it may be that most of those statutes are not dealing with suits against the United States, and Congress may be more protective of the public fisc, and part of it is the... the legislative debates reveal that Congress considered a variety of potential damages provisions, some of which were more generous than the one that was ultimately enacted, some of them less generous.

For instance, the more generous provisions--

Justice Stevens: But this statute is unique, is it not?

Mr. Stewart: --It's not quite unique.

I believe there are a couple of other provisions that use the phrase, person entitled to recovery, and that phrase has not been authoritatively construed by this Court, so those... interpretation of those statutes would raise the same question this one does.

Justice Ginsburg: But there's a number of them that start out with actual damages.

Mr. Stewart: And... and sometimes, again, the words are to the effect of actual damages or $1,000, whichever is greater.

And because the availability of the $1,000 is not limited to a, quote, person entitled to recovery, unquote, the plain language of many of those statutes compels the conclusion that $1,000 will be awardable regardless of actual damages.

Justice Ginsburg: Now, there was an interpretation... Congress told OMB to do interpretive guides, and it did, and it... and it gave it the meaning that this plaintiff gives it.

It's... it read the statute... didn't... wasn't that what OMB said?

Wasn't that their contemporaneous--

Mr. Stewart: I mean, I think the more... I think you're right that the more natural reading... the OMB guideline didn't address in terms the situation where a plaintiff shows no actual damages but nevertheless claims the thousand, but the OMB guideline did say, a person who suffers an adverse effect from a willful or an intention violation shall receive a 1,000... actual damages or $1,000, whichever is greater.

Justice Ginsburg: --It said actual damages or 1,000.

As I understood the... that original interpretation, it was the reading that the plaintiff is putting forward here and your response to it in your brief seemed to be that was a wrong interpretation because it didn't take account of sovereign immunity or saving the sovereign fisc and an official at OMB said it was wrong and it's not... no longer effective.

Mr. Stewart: I mean, I think if... if plaintiffs are using the OMB interpretation to establish the point that intelligent people can read the statute the way that they did, I... I think it's validly used for that purpose.

But the OMB guideline is not entitled to deference, as the Court held in Adams Fruit, a statutory provision that is to administered solely by the courts is not one as to which the Court will defer to administrative interpretations.

The... the OMB--

Justice Ginsburg: But didn't... didn't Congress designate OMB to... to these guides?

Mr. Stewart: --Congress designated OMB, but it's... the particular provision that is at... specifically at issue is reprinted at page 13a to the appendix to the Government's brief.

And it says, the director of the Office of Management and Budget shall develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section.

So the only specific directive that OMB had was to instruct or direct agencies as to their substantive obligations under the act.

Now, in the course of doing that, it was entirely appropriate for OMB to go further and offer its view to the agencies as to what consequences would follow if they breached their substantive obligations, but that wasn't a task that was specifically entrusted to OMB by statute, so I don't think there's any basis for inferring that Congress--

Justice Scalia: I see.

You're... you're saying that... that it... it was meant just to tell the agencies what you have to do to comply with the act.

Mr. Stewart: --Exactly.

Justice Scalia: Yeah, that... that's probably the best reading of it.

Mr. Stewart: Exactly.

Justice Scalia: Yeah.

Mr. Stewart: So the... the last... the last point I wanted to make is, it might be possible, if... if we lost this case, it might be possible to mitigate the financial consequences to the Government by giving the term adverse effect a narrow construction, but our... our view is, if the consequence of adopting plaintiff's reading of the phrase person entitled to recovery is that an established term of art like adverse effect has to be construed in other than its normal manner in order to make the statute make sense, there's something wrong with plaintiff's reading.

Justice Breyer: But why... why do you say that?

Because, see, the adverse effect part governs people who don't even want damages.

I mean, it... it's to get into court, it's just to get into court, bring the suit, isn't it?

Mr. Stewart: Right.

Justice Breyer: So... so I would have thought that your... your reaction... I just want you to clarify this... would be, if they win this case, then the reaction would be to go back and say, all right, if we're going to give $1,000 to people who really are just feeling bad about what happened, we've got to give them all $1,000, well, it's only in circumstances where the agency really did something quite wrong.

And so you'll read that intentional or willful requirement toughly, not... not the adverse effect part tough.

I mean, why... why wouldn't that be the reaction?

Mr. Stewart: I mean, I guess if... if this... if this Court held that the phrase intentional or willful was limited to situations--

Justice Breyer: I don't see... yeah?

Mr. Stewart: --If it... if it was limited to situations in which the Government set out to violate an individual's rights under the Privacy Act, that... that would be another way at least of--

Justice Breyer: Yeah, yeah, and then you'd say, well, we should assume that's what happened here, though.

It certainly didn't--

Mr. Stewart: --I... I mean--

Justice Breyer: --but we should assume that.

Now, suppose I assume that, and then I decide that they're right on the basis of that assumption, and then in the next case it turns out my assumption happened to be quite wrong because Congress had a broad intent there.

Now what happens?

Mr. Stewart: --I mean, even under the narrowest possible interpretation of what intentional or willful means, you could have hypotheticals like the one with the form that left off the U.S.C. cite, and again, we... we hope those things would happen very rarely, but it seems highly unlikely that Congress would have wanted each of the hundred thousand people who put on... information on the form to get $1,000.

Thank you.

Rebuttal of Jack W. Campbell Iv

Chief Justice Rehnquist: Thank you, Mr. Stewart.

Mr. Campbell, you have five minutes remaining.

Mr. Iv: Thank you, Mr. Chief Justice.

Justice Kennedy, I'd like to address my first point to you, because I... I think you put your finger on one of the number of... of absurd results, or difficult-to-swallow results that flow from accepting the Government's interpretation.

The Government's essential contention here is that quantification of actual damages is an essential element of a Privacy Act claim, but boy, what a strange way to write the statute if that's what Congress intended.

The... the relative language is reproduced at pages 3 and 4 of petitioner's brief, and it says that whenever an agency fails to comply with any other provision of this section, and I'm going to ellipsis, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and I'm putting another ellipsis there.

You then go to subsection (g)(4), which states that if that adverse effect was the result of an intentional or willful violation, then the Government, the United States shall be liable, in the sum... in an amount equal to the sum of.

Liability is established once those three prerequisites are met.

All that is left at that point is an exercise of arithmetic.

It would be a very strange statute that says the United States shall be liable in the sum of the following amounts you are to add up, and that amount would be zero.

And, in fact, that would never be the case.

Costs are always available to a Privacy Act plaintiff who establishes an adverse effect caused by an intentional or willful violation of the act.

So there are certainly going to be at least some recovery.

There's no qualification of the costs award with reasonableness of precondition of actual damages.

So some... there is going to be a recovery in those cases.

Now, if that's the only recovery that's available, it's a very... it's, one, a very strange statute, and number two, a statute that arguably is unconstitutional.

But you don't need to read it that way, because the natural reading is, as was pointed out in the argument, that, yes, Congress did anticipate precisely this issue, that privacy invasions very typically result in emotional harms that inherently are not quantifiable, and Congress didn't intend, I can't imagine, to... to make the line of recovery turn on whether you can prove that you put 37... a 37-cent stamp on an... on an envelope to get your credit report or pay the $10 fee.

That's a very arbitrary line.

Why would Congress be solicitous of people who suffer the same harm... be solicitous of the one who put a stamp on an envelope?

That's a nonsensical.

Moreover, it reduces any efficiency savings that are realized under the act as Congress intended by saying, look, we're not going to get into those sorts of proof issues.

If you have an emotional distress and it's typical, it's caused by the intentional violation, we don't go through that.

You get your damages of $1,000 and let's not go through the proof.

That's a very natural reading of the act.

But the Government... the Government is asking you to adopt a... an interpretation that has a number of additional problems.

It renders the adverse effect requirement superfluous.

Proof of actual damages will necessarily in every case require proof of an actual harm and causation.

So even the attempt by the Government to place a... a meaning on the adverse effect requirement must fail.

Again, it turns the shall language into may, or at best, renders shall illusory, because the sum would be zero in most cases.

Justice Scalia: As to your point about the... the costs.

You don't get costs unless, it says the court may assess reasonable attorneys' fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed.

And I assume that when later on they... they say the costs of the action together with reasonable attorneys' fees as determined by the court, they're referring back to the court has allowed those... those costs and fees, because he has substantially prevailed?

Rebuttal of Malcolm L. Stewart

Mr. Stewart: I'm sorry, Justice Scalia.

I... are you referring to the language that's in (g)(2) and (g)(3) of the statute?

Justice Scalia: Yes, I am.

Mr. Stewart: (g)(2) and (g)(3) are entirely different causes of actions.

Those deal with requests for injunctive relief, and this is the only type of injunctive relief under the Privacy Act, injunctive relief for access to files or correction of files.

Those are separate causes of action.

In fact, I submit, Justice Scalia--

Justice Scalia: I see.

I see what you're saying.

Mr. Stewart: --that the contrast in the language between (g)(2) and (g)(3)--

Justice Scalia: I see what you're saying.

Mr. Stewart: --and (g)(4) proves my point.

Here, Congress anticipated that there is a substantial... substantially prevailing party.

That party--

Justice Breyer: Well, what assumption would you like us to make--

Justice Scalia: --Right, right.

Justice Breyer: --in respect to the meaning of intentional or willful?

Mr. Stewart: --I... I submit that a perfectly proper interpretation of intentional or willful can include conscious disregard of... of the... of the legal obligations.

That's a well-established standard.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Campbell.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at 10 o'clock.

Attribution:

The Oyez Project

Featured:

National Archives and Records Administration v. Favish - Oral Argument

Fri, 09 Jan 2009 14:49:06 +0000

Case:

National Archives and Records Administration v. Favish

Media File:

02-954_20031203-argument.mp3

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transcript.xml

Transcript:

Argument of Patricia A. Millett

Chief Justice Rehnquist: We'll hear argument now in No. 02-954, the Office of Independent Counsel v. Allan J. Favish.

Ms. Millett.

Ms Millett: Mr. Chief Justice, and may it please the Court:

In the course of their investigative work, Federal law enforcement officials, of necessity, routinely come into possession of substantial amounts of highly sensitive and highly personal information.

Sometimes that information includes graphic death scene and autopsy photographs.

Those photographs are taken for the limited and restricted use of law enforcement and public safety officials.

They are not freely available to the general public as a matter of law, custom, or practice.

The question presented in this case is whether death scene photographs should be broadly disclosed to the general public under the Freedom of Information Act.

They should not.

The Freedom of Information Act's purpose is not maximum disclosure, but responsible disclosure, and the publication of death scene photographs goes beyond the bounds of responsible disclosure, because in the terms of exemption 7(C), production could reasonably be expected to constitute an unwarranted invasion of the personal privacy of surviving family members.

In ordering the release of four photographs in this case, the court of appeals recognized that that substantial intrusion on privacy would occur, but it then committed three errors in assessing the countervailing public interest in disclosure.

Chief Justice Rehnquist: Must there be identifiable family members to suffer this invasion of privacy?

Would it just be automatic instead?

The... a scene like this, you would assume that there was someone?

Ms Millett: No, the... the practice of the Federal Government is that we need to identify the existence of a survivor.

There was a case in the D.C.... excuse me... District Court, named Outlaw, that I believe was cited in respondent's brief, where the Department of Defense had asserted survivor privacy without having first identified a survivor, and that was held to be impermissible, and as a matter of practice, because this is sort of specialized application of privacy interest, the Government identifies a survivor before invoking it.

But that is often not a difficult job because the types of records that bring the photos to us, law enforcement records, military records when it's a military service member who's been autopsied, will often contain, or allow the identification, of family members.

Justice Scalia: And if you're so unfortunate as not to have survivors, or to have survivors who don't like you, the most embarrassing and gory photographs of your body can be released?

Ms Millett: Well, Justice Scalia, that has been the practice after the Outlaw decision of the Federal Government.

It... it's not inconceivable to me that because you're talking about an objective test, at least under 7(C)... some of these photographs are held... upheld under... or withheld under exemption 6, which doesn't have the same objective test language.

It's not inconceivable that the Government could justify withholding, in a situation like after the collapse of the World Trade Center towers, and their substantial amounts of... sorry, but, for the graphic nature... but partial remains that can't be matched with particular individuals.

But we know that for some significant percentage of those people, there are a significant percentage of survivors on a match for match.

In that case, I think we would argue should not be required and that withholding could be done because we...

Justice Scalia: But only on the assumption that there are survivors?

Ms Millett: On the assumption that there... a reasonable... obviously, a reasonable assumption...

Justice Scalia: I don't know why that's necessary.

I don't know why you... you can't say, and I think some courts have held, have they not, that... that there is a privacy interest in the... in the person who's died?

Ms Millett: For the most part, courts have said that privacy dies with the individual, but again, the problem in this case is the Ninth Circuit didn't think we were withholding too little.

It rule... it ruled that we were withholding too much that... and that, in fact, when there are known survivors, these... these disturbing photographs still have to be released.

And in doing that, they committed three errors.

Justice Ginsburg: Before we get to that though, on the question that was asked, if there are no survivors, given that the main rule of FOIA is disclosed, unless you fall under an exemption, and exemptions are to be narrowly construed, I don't think the... the Government could suppose, could hypothesize an interest that may or may not have existed in the decedent when there are no survivors.

Ms Millett: Well, Justice Ginsburg, that has been the Government's practice, is to identify a survivor, but again, I think our position is, because the nature of our world has changed and we now have to deal with situations involving mass deaths, that we aren't going to insist when you have a large collection of remains and we know that for some percentage of those there... there are survivors, that withholding would still be permissible.

Justice Scalia: But why is that any less of a leap than saying the deceased... the deceased's privacy is being invaded?

Why is it less of a leap to say that the privacy... the privacy of the survivors is being invaded?

It doesn't seem to me that it's... it's their privacy that's being invaded.

It's... it's their... their sensitivity, various other things, but... but it seems to me strange to speak of their having a privacy interest.

Surely they have an interest in not having their... their... their relative displayed this way, but I... I wouldn't normally call that a privacy interest.

Ms Millett: Well, Justice Scalia, the common law... a number of common law courts did, and they did... and we cite... one of the very first common law courts ever to recognize the right to privacy, in 1895, the Schuler v. Curtis case, which is cited in our reply brief, found exactly a privacy interest in the survivors, and it said it is not the privacy interest of the deceased, because under the common law tradition, privacy dies with the individual.

But what's being protected here is the survivors.

It sort of takes three forms, first of all, their... their memory of the deceased, their ability to provide a dignified disposition of the body, and the ability to have seclusion in their grief and repose and closure.

And those concepts packaged together have been recognized as a privacy right, both at tort law by a number of courts, and more broadly, by custom and practice in this country.

These types of photographs are not freely available virtually anywhere.

A large number of states, as we've cited in our brief, prevent their disclosure or have restrictions on their disclosure.

Justice O'Connor: Well, I guess we're, in this case, asked to apply FOIA's exemption 7(C) to interpret it anyway.

Ms Millett: Yes.

Justice O'Connor: Right?

Ms Millett: Yes.

Justice O'Connor: So that's what we're focused on.

Ms Millett: Yes.

Justice O'Connor: And what do you propose as the test?

Ms Millett: The test... the test is, as this Court has... to decide whether a... a invasion of privacy is clearly unwarranted, you have to weigh and balance the intrusion on privacy against the extent to which the information disclosed would, in this Court's Reporters Committees decision, contribute significantly to public understanding of the operations or activities of the Federal Government.

And in this case, on one side of the balance is a substantial intrusion on privacy, requiring... exposing this sort of information out where family members will see it, encounter it, where they will know that their... that their loved one has not been buried in any sense.

Justice O'Connor: Is that the test that the CADC used in the Accuracy in Media case involving these same photos?

Ms Millett: They used a... the same balancing.

They recognized the...

Justice O'Connor: So whatever you're proposing, you think the CADC correctly employed in that case?

Ms Millett: The... there... with... with one qualification, which I don't think is a distinction... don't think it's a distinction that makes a difference.

Certainly on the privacy interest side, they agreed with us that there's a survivor privacy interest and that that has to be balanced under this Court's Reporters Committee standard.

Now, the D.C. Circuit has said with... when the public interest that's asserted is substantial allegation, or is unsubstantiated allegations of governmental misconduct, that's not enough.

They require compelling evidence of governmental misconduct to overcome the presumption of regularity.

We've articulated the test is clear as evidence.

I don't think in practice there's any difference.

We've employed the clear evidence standard because that's the standard this Court has adopted for overcoming a presumption of regularity.

Justice Scalia: I'm... I'm... I'm glad you backed off from compelling evidence.

It seems to me if there were compelling evidence of Government's misdoing, you wouldn't need the photographs.

If it was already compelling, the photographs would... would not prove anything additional and you would... you would reject it for that reason, right?

Ms Millett: That may... that may well be.

The compelling... the way the compelling evidence standard works, as we understand it, and the way the clear evidence standard works that we propose is not that that means you get the photographs.

It just means that you have something of weight on your side of the balance.

We think the unsubstantiated allegations of governmental misconduct are worth virtually none, if no weight...

Justice Stevens: But are the... does the term compelling interest refer to the allegations that the person seeking the photographs makes, or the evidence he has supporting his position?

Ms Millett: It has to be the... the evidence of governmental misconduct.

Empty allegations...

Justice Stevens: Independently of what the... the photographs themselves would show?

Ms Millett: That... I mean, that presumably will not be the evidence, right, you can't just come say that... that would be sort of boot-strapping to say that the evidence is the... I have to see that so that I will have my evidence of your governmental misconduct, which essentially...

Justice Stevens: Okay, tell me again what... what the test is as you... you understand it.

Ms Millett: The... the test... you mean with respect to unsubstantiated allegations of governmental misconduct?

Justice Stevens: Yes.

Ms Millett: That is that the FOIA requester must come forward with clear evidence of governmental misconduct on their own, independent evidence on their own, to have a cognizable public interest to weigh against the intrusion on privacy that has occurred in this case.

And that is the standard that this... the clear evidence standard comes from this Court's decisions, which say that is the quantum of evidence needed to overcome the presumption of regularity and legitimacy that attaches in this case to law enforcement investigations.

Justice Ginsburg: Does the Government... does the Government... as I understand FOIA, the Government has the burden of proof, the Government presents an exemption and it is the Government's burden to show that the exemption applies, not the requester, because going in, am I right to say, the requester can ask for this information for any reason or no reason?

Ms Millett: That... that's... with respect... until an exemption is triggered, there's no need to have any reason for your FOIA.

You can have a good reason, a bad reason, or no reason to ask for information, but...

Justice Ginsburg: So what is the Government's burden that it has, at least the initial burden is on the Government to show what?

Ms Millett: The... the initial burden on the Government is once an exemption... we have to show that an exemption is triggered.

We have to, in this situation, identify a cognizable privacy interest which...

Justice Ginsburg: Now, after you point to which number, 7, you point to 7(C) and that... that... the burden must be more than just, say...

Ms Millett: No, that... that's right, in fact, we get the written steps.

We have to identify a cognizable privacy interest and then, before we make a decision to withhold, we ourselves must make the... must balance.

It's our job to do this balancing before we invoke an exemption, so we ourselves will then try to identify if we can from the requester's papers or on our own what public interest would be served by the disclosure of these documents.

Now, it's not the particular interest of the requester, but it's the relationship between this document and serving the public interest that was identified in Reporters Committee of revealing the operations or activities of the Government.

So in this case, we looked, we found a substantial privacy interest here, and then we looked at photographs of a deceased body at a death scene and in our judgement, these reveal nothing about the operations or activities of the Office of Independent Counsel and... and...

Justice Scalia: Ms. Millett, you... you... you say that you have to show clear evidence of... have clear evidence of government misconduct.

What do you mean by misconduct?

What... what has been brought forward here, at least, are some disparities in... in various governmental reports, which suggest that at least there was negligence or sloppiness in some of the reports.

Is that enough to establish what you mean by governmental misconduct?

Or does it have to be some willful cover-up?

Ms Millett: Justice Scalia, first of all, I don't think there's any evidence of negligence or sloppiness here, but if we adopt that...

Justice O'Connor: All right, well, we... we'll get to that, I assume, right?

Okay.

Ms Millett: If we adopt that characterization, the fact that someone cannot... can identify something more that they should have been done, or the fact that... that they disagree with the ultimate result, is not governmental misconduct.

The type of thing that might rise... that... that might count, is something that was... if you had evidence that, you know, governmental investigators had suborned perjury, and you had evidence in the form of...

Justice Kennedy: Willful?

Has to be willful?

Ms Millett: I'm sorry?

Justice Scalia: Has to be willful?

It cannot be just a sloppy job?

Why... why isn't that of interest to the public?

Ms Millett: I don't... I... I don't think... well, if... if they've got evidence of a sloppy job, then FOIA has already worked.

They can... the purpose of FOIA is not... it's not a 60(b) motion to reopen an investigation or to make us investigate more.

It's to see... learn what the Government did and then critique it as much as you like.

Justice Souter: Okay.

Why... why then do you take the... I'm sorry... why... why do you take the position that to satisfy the... the... the condition of revealing the operation of the Government, it's necessarily got to reveal something to the discredit of the Government?

What if someone came along and said, I think this was a superb investigation, and the Government is far too modest about what it has done, and I... I want the country to know?

Would... would that support a claim?

Ms Millett: Well, Justice Souter, let me be very clear.

We're talking here about the allegations of misconduct because that is the public interest that is asserted.

One might be able to...

Justice Souter: Right, but if misconduct... my... the reason I'm raising the question is, if misconduct does not have to be shown, I suppose that would have a bearing on the degree of misconduct in a case like this that would... that would suffice.

Ms Millett: Well, a public interest has to be identified at some point, and the problem with this case is, or the problem...

Justice Souter: No, but what about my question for a minute?

Ms Millett: Right.

Justice Souter: Why is... why is it an illegitimate public interest for somebody to come along and say, I want to make the Government look good.

They are hiding their light under a bushel.

I... I want the people to know how... how fine they've done.

Why is that not a... a possible legitimate objective under the statute?

Ms Millett: Well, I think that... that... that is sort of nothing more than... than a desire to show what the Government did in this investigation, transparency in government interest, which is the point of FOIA.

But once you've come to an... applying an exemption, you're going to need something more on your side than just serving the general interests that FOIA itself advances, because otherwise, the exemption doesn't work as an exemption.

You have to want... want something more than transparency in government.

Now, it may not be that you have to show misconduct.

You might be able to do it because there's some other sort of acute public interest that's going to outweigh it, but I think in the end, the public interest in making the Government look good or telling the Government... tell the public more about what the Government did is never going to be enough to outweigh the privacy interests of individuals.

You can do that with the substantial amounts of disclosures that have already been made.

I would like to reserve the balance of my time for rebuttal.

Argument of James Hamilton

Chief Justice Rehnquist: Very well, Ms. Millett.

We'll hear from you, Mr. Hamilton.

Mr. Hamilton: Mr. Chief Justice, and may it please the Court:

There are five basic reasons why the privacy interest at issue in this case should be protected.

First, the Foster family seeks to protect their own, wholly legitimate privacy interests.

The privacy interests here of the family are to be free from seeing these photographs on television and in grocery store tabloids, to be free from the knowledge that these photographs are displayed in virtual perpetuity on ghoulish Web sites that show death and carnage, to be free from the harassment by the media that inevitably will follow if these photographs are released.

Second, while FOIA privacy protection is broader, there is significant common law authority that a survivor's right of privacy is violated by showing photographs of deceased loved ones.

The Restatement of Torts recognizes this, so does Reid v. Pierce County, a 1998 decision by the Supreme Court of Washington, en banc, which allowed a cause of action for displaying the autopsy photographs of former Governor, Washington Governor, Dixie Lee Ray, at cocktail parties.

Third, every FOIA case that has examined the issue has found that in appropriate circumstances, survivors have a proper... a privacy interest.

The Ninth Circuit and the D.C. Circuit did so in the cases involving these photographs.

There is a 1987 opinion in the D.C. Circuit of Badhwar v. Air Force that does so regarding autopsy reports, and Justice Ginsburg joined in that opinion.

Justice Scalia: Mr. Hamilton, assume we agree with you on all of that.

We haven't heard anything about the other... the other half of the inquiry, and that is what the public interest is in... that might overcome that... that... that privacy interest.

I'm sure the other side is going to... is going to talk about that, the... the alleged discrepancies in the reports and whatnot.

Can... can you shed some light on that?

Mr. Hamilton: Well, Justice Scalia, we think that there is no public interest on the other side.

We think as... as counsel for the Solicitor General has said, that there's a strong evidence test for showing that there is government... government misconduct where that is the allegation of the public interest, which is the situation here.

A... a number of courts have said that the test should be compelling evidence.

The D.C. Circuit has done that in several cases.

The Fourth Circuit has done it.

Other circuits have come to other standards in... in terms of what the public interest should be, but it must be something that is strong, that is not insubstantial.

Secondly, in determining what the public interest is, the Court must be aware that there have been five investigations, five investigations of Mr. Foster's death, and all of them have found that he died by suicide.

These investigations have released over 3,000 documents over...

Justice Stevens: Yes, but it seems to me that the... arguably, the interest in disclosure might not challenge the ultimate conclusion, but rather they might contend... want to show that one of the team of investigators was totally incompetent, and it was necessary to have three or four other investigations to reach the correct result.

I don't think the ultimate conclusion necessarily answers the... the claim that there may be some public interest in how the investigation was conducted.

Mr. Hamilton: Well, Justice Stevens, the... 7(C) requires a balancing, and when you have this balance, you have to weigh whatever the public interest is against the privacy interest.

And here, where there have been five investigations, where the reports are voluminous, where the documents released and the photographs already released are voluminous, it is very difficult to see what the public interest is in getting these photographs, which would grossly invade the privacy of the family.

The other point on the public...

Justice Scalia: Well, let... let's take a particular item of evidence, I mean, like the... the autopsy report that Mr. Favish claims was... was... was altered, that the word neck was white... whitened out and head was written in instead to... to cover the fact that the bullet exited the neck rather than the head.

Now, you know, what... what he and other conspiracy theorists would say is, the fact that five investigations came up with the same conclusion just shows the extent of this... this conspiracy, you know.

They're not going to be satisfied by the mere fact that... that you had five separate groups.

They're going to say, oh, all the worse, all the worse, this... this conspiracy is so widespread.

Well, how do you respond to that?

Mr. Hamilton: Well, I think the first response I would make is that it is a difficult argument to make that Judge Starr conspired with members of the Clinton administration to protect that administration.

[Laughter]

Judge Starr... Judge Starr's report was quite thorough, it was over 110 pages.

He answered this question about the... the... the medical report.

The medical report was somewhat inconsistent, but certainly, when you look at the autopsy reports, when you look at the... the... the photographs themselves, it is clear that the... there... there was a... an exit wound in the back of the head.

There was no...

Justice Scalia: He might have been protecting Newt Gingrich.

Did you ever think of that?

Mr. Hamilton: I... I beg your pardon?

Justice Scalia: Mr. Starr might have been protecting Newt Gingrich.

We really... we really don't know.

Unidentified Justice: [Laughter]

Justice Kennedy: May... may I ask...

Mr. Hamilton: Justice...

Justice Kennedy: the... I wanted to ask this question of the Government, didn't have the opportunity.

The Government says there were three errors made by the Ninth Circuit.

I assume the district court, under the Government's test, does have substantial discretion even if we... if we adopt the test the Government wants us to adopt.

And my question is whether or not, rather than simply reverse and remand... and reverse, we have to remand for the district court to do this under the proper test?

Mr. Hamilton: Well, I would hope... I would hope, given the full record here, that this Court would not remand, that this Court would decide this issue.

It has been, Justice Kennedy, 10 years since...

Justice Kennedy: I... I understand, but as a... as a legal matter, if the Ninth Circuit didn't apply the proper test and if the district judge has to exercise discretion in the first entrance... instance... whether or not we have to remand even if we adopt the Government's argument?

Mr. Hamilton: I... I believe that on the record before the Court, the Court can decide that there is no valid public interest here, and that the interest of... the privacy interest of the Foster family greatly outweighs...

Justice Kennedy: So you want us to do that weighing?

Mr. Hamilton: I... I certainly do.

I want this case to end at this Court, Justice Kennedy.

It has been 10 years and it is time to give this family some peace.

Justice Ginsburg: That was the initial position of the district court, wasn't it?

In the... in the first round, didn't the district court uphold the exemption?

Mr. Hamilton: The... yes, Justice Ginsburg.

Justice Ginsburg: So the district judge... what... I don't recall what standard the district court applied in the first instance, but it was the Ninth Circuit that... that said, district court, you have to look at these and disclose the ones that aren't, whatever that series of adjectives is.

Justice Kennedy: Yes.

Unidentified Justice: That... that's my concern.

Justice Kennedy: Is there evidence that the district court used the standard that the Government now argues for in the first... when he... when the... Judge Keller first looked at this case, did he adopt basically what the Government is asking us to adopt?

Mr. Hamilton: Not... not exactly.

No, he did not adopt a... a clear evidence test, but the district court in the first instance, in his first decision, did weigh the public interest against the privacy interest and found that as to all of the photographs, the privacy interest prevailed.

I would like to... I would like to return to the... the family's privacy interest and make one more point, which is that law and tradition treat the moment surrounding death as special, private family matters.

A family generally has the right to decide how to conduct its leave-taking and how to dispose of the body of a loved one with dignity.

At a funeral, a family may choose whether a coffin is open or is shut, and they have that choice even if the deceased person was a public official.

Here, the Foster family decided that the coffin be shut, and to effectively open it now by disclosing the photographs would be an unconscionable invasion of the family's privacy interest.

In the Reporters Committee brief, the contention was made that the invasion of sorts here would be minimal and would impose no meaningful additional harm.

That assertion is just simply wrong, and those claims ignore the potent and the moving declarations submitted in this case by Ms. Anthony and Ms. Moody.

These declarations express what any family in the circumstance would feel, and they show why law and tradition treat death as a private, family matter.

Mr. Foster's sister, Ms. Anthony, in her declaration, recounted her nightmares and heart-pounding insomnia each time she has seen the leaked photograph of...

Argument of Allan J. Favish

Chief Justice Rehnquist: Thank you.

Thank you, Mr. Hamilton.

Mr. Favish, am I pronouncing your name correctly?

Mr. Favish: Yes, Chief Justice, thank you.

Mr. Chief Justice, and may it please the Court:

I can think of no clearer definition of the phrase, personal privacy, as Congress used it in exemption 7(C) than what this Court said about that phrase in the Reporters Committee case when it cited the work of former Solicitor General Charles Fried and other noted scholars on what the definition of privacy is: the right to control information about yourself

That's what I base this case on.

I want you to stick with what you said on that point in 1989.

Justice Ginsburg: The issue wasn't before the Court.

There were no family members.

It was an individual, so it was natural for the Court to address it.

Mr. Favish: Justice Ginsburg, the definition of privacy as intended by Congress in exemption 7(C) was before the Court in Reporters Committee, and this Court...

Justice Ginsburg: But the... the Court didn't have a case that involved, say, for example, what was presented in the Challenger case.

It didn't come here, but it did go to the district court and the D.C. Circuit.

Mr. Favish: I agree...

Justice Ginsburg: Are... are you saying that Reporters Committee showed that that decision was wrong?

Mr. Favish: No.

I... I agree with you that Reporters Committee did not involve death-related documents, if that's what you're saying.

I agree on that point.

But Reporters Committee gave only one definition of privacy as intended by Congress, and that definition should apply to all circumstances in which FOIA requests may come up.

Justice Breyer: There's a tradition going back thousands of years in human life.

You can go back to Antigone, Euripides, every major religion, respect for the dead, respect for survivors, and that runs through every religion, through Greek myth, tragedy, and why isn't that important enough to human life to believe that Congress also intended to encompass that?

Mr. Favish: I believe it is an important interest, but Congress left no indication that it intended for that interest to be protected by the privacy language in exemption 7(C).

Justice Breyer: Well, if the history is totally silent, why wouldn't we assume that Congress intended to recognize something so deep in human nature?

Mr. Favish: Well, the... the legislative history isn't totally silent.

Justice Breyer: No, I mean if they said, no, no, we do not intend to respect this sacred tradition, fine.

But I bet they didn't say that, and for good reason.

Mr. Favish: They did not say that, but they did talk about personally identifying details and government agencies where person...

Justice Scalia: Are you reading from the legislative history?

Mr. Favish: From the legislative history, which is at page...

Justice Scalia: Why don't you use the text of the statute?

Mr. Favish: Yes.

Justice Scalia: I would... I would think that your response to... to Justice Breyer would be that the... that the word privacy is not a... the normal way of... of expressing those concerns for respect for the dead.

Mr. Favish: I agree, I agree, and that's why I cited what this Court did in Reporters Committee, and those concerns are valid and those concerns should be made to Congress in an attempt to get them to add another exemption to the FOIA, if that's what the Government and the Foster respondents want.

We know that...

Justice Breyer: You've heard... you've heard Mr. Hamilton mention aspects of how the revelation of documents, pictures of the dead, can injure a survivor.

Why isn't the word privacy broad enough at least to cover that?

Mr. Favish: That's not the way this Court defined it in Reporters Committee.

That's not the way I've seen it defined anywhere else except a few aberrational cases, which by the way...

Justice Souter: Well, one... one of the... one of the definitions that I think we instinctively assume is the very simple one that Justice Brandeis used, the right to be let alone.

That is at the... at the heart of a lot of privacy thinking in our law, and the right to be let alone, I suppose, would encompass at least two things relevant in this case.

One is the right not to be assaulted by these photographs, which will be very upsetting.

That is... that's certainly not being left alone when... when you have to go through that.

And the second consequence, I would suppose, of publication is simply even in the narrowest definition of privacy, even apart from the Brandesian sense.

If these things are going to be published, the family is going to be subject to intrusive inquiries again.

People are going to ask them for comments on it.

They're going to go to their house again and take a picture of the front of the house.

Why aren't these interests, which at this time in our history I think do tend to fall with... within the concept of privacy, easily encompassed by the... the sense of privacy in the exemption?

Mr. Favish: The right to be let alone was not the sole expression of the definition of privacy in that article.

In fact, in Reporters Committee...

Justice Souter: Well, nothing it... I... I'm not suggesting... your... I mean, your argument is based upon the fact that there has to be one narrow definition of privacy encompassed by this word, and no other.

You've gone back to a case in which we were talking about the interests of the living, and you say it can't be anything more than that.

Why do you make the assumption that privacy is such a circumscribed concept in the exemption?

Mr. Favish: Well, the word privacy, if it's going to be meaning the right to be let alone in its broadest sense, I suppose anything that could be considered a tort then would be considered a violation of somebody's privacy right.

Justice Scalia: Mr. Favish, do... do we have any case law that suggests that the exemptions to the Freedom of Information Act are to be narrowly construed?

Mr. Favish: Well, sure, this Court's decision in Rose, Department of Air Force, there are many cases...

Justice Scalia: Isn't that your... isn't that your response to why you should not think that privacy means the right to be let alone?

Mr. Favish: Exactly.

Justice Scalia: Or anything beyond its narrowest meaning?

Mr. Favish: I... I...

Justice Scalia: I assume that that's your argument?

Mr. Favish: Yes, absolutely.

That's established that these are to be narrowly construed, and that was a part of the legislative intent of Congress to have the exemptions clearly delineated, specific, so that there would be clear standards.

In fact, that was the... the reason for the Freedom of Information Act being enacted in 1966, because the prior enactment was allowing the Government to take ambiguous language and cover every document with it.

So if you are going to come up with another definition of privacy, it has to fit within that legislative intent.

Justice Ginsburg: Are you saying that this Court, because of the definition in Reporters Committee, has already recognized that it's got to be the individual that is in the photograph and families are out of it?

That it... that... that's... so you would... you would say the D.C. Circuit was wrong, the district court in the Challenger case, which involved the voices of the people?

Mr. Favish: Okay.

Two... two parts to your question.

First, as to your first part, based on what this Court did in Reporters Committee, I'd say privacy in this context is the right to control information about yourself.

If the survivors have no information in that photograph or document, they have no privacy interest here.

With regard to the Challenger case, the D.C. Circuit in Challenger did not reach this issue.

The sole issue they decided was whether or not the threshold had been met in this exemption (C) case, which was whether the file was a personnel, medical, or similar file.

Justice Ginsburg: Yeah, but it went back to the district court.

Mr. Favish: The district court made the decision that there was a privacy interest, but it wasn't the D.C. Circuit that made that decision, and the D.C....

Justice Ginsburg: But in... in any event, you would say that district court decision was off-limits because this was a case of survivor grief, no information about the survivors?

Mr. Favish: Yes, I would.

And I'd like to point to two cases, one of which has already been cited to you in the brief by the Silha Center, one of the amicus, and that's Cordell v. Detective Publications.

It's a Sixth Circuit opinion from 1969.

And also, a case that hasn't been cited to you yet is a Federal district court case called Young v. That Was The Week That Was, and that's at 312 F. Supp. 1337.

The beauty of these two Federal cases, they're both from 1969, which is just three years after Congress first enacted FOIA, just a few years before they put the privacy phrase in exemption 7(C).

They talk about the common law definition of privacy and...

Chief Justice Rehnquist: Well, if... if they were decided in 1969, why are they not in your brief?

Mr. Favish: Well, I didn't... I filled up my 50 pages and I didn't address this specific issue, other than citing Reporters Committee.

Justice Kennedy: Well, on... on... on Reporters Committee, maybe you'll disagree, but what I think is... is... is the key language is in roman IV, where the Court says, to begin with, both the common law and the literal understandings of privacy encompass the individual's control of information concerning his or her person.

It doesn't say consists of or is defined, it says encompass.

The Court couldn't have been more careful to use a word to say that this is... that it includes.

It doesn't say it's exclusively confined to.

Mr. Favish: I... I...

Justice Kennedy: I... I just think that's a very unfair reading of that sentence.

Now, if you have something else.

Mr. Favish: No, well, then I look at... well, first of all, I generally agree with what you just said.

Justice Kennedy: I... you... you agree that that is... that's the key sentence that we're talking about.

Mr. Favish: Yes, and... but I don't... I disagree that it's unfair, because then I look at what was cited by the Court, and all these scholarly articles talk about the right to control information about yourself.

And I see nothing else in the word privacy from the common law, other than a minority of aberrational cases, and certainly nothing in the legislative history that would come up with this relational tort, this survivor privacy...

Justice Kennedy: Well, but that's what we were involved with.

It... it's not our style to say, now we have before us the question of whether there is this... privacy includes control of the individual's information about himself.

Now, of course, there are many other definitions, but we... we don't write opinions that way.

Mr. Favish: Right.

I agree, but if you look at the scholarly articles that you cited, none of them endorse this survivor privacy theory.

They talk about privacy as the right to control information about yourself exclusively.

Justice O'Connor: Well, Mr. Favish, now, the court below didn't really rest on that ground, did it?

I mean, you... you didn't... the court below didn't think that privacy was limited to this... to the deceased?

Mr. Favish: Neither the district court nor the Ninth Circuit...

Chief Justice Rehnquist: No.

Mr. Favish: accepted that.

Justice O'Connor: And so I assume you may want to address the other arguments in the case.

Mr. Favish: Certainly.

If you do...

Justice O'Connor: Do you defend the approach taken otherwise by the courts below?

Mr. Favish: No, I don't.

And if you do get to a second step where you are going to be balancing whatever privacy interest you might find here against the public's interest, then you have an overwhelming... an overwhelming case that's been established showing that there was government misconduct here, at least negligence.

And I talk about the government conduct on two separate levels.

One, there was government conduct in investigating Mr. Foster's death, finding out what happened to him.

Second, there was government conduct in reporting about that death and the investigation to the public.

The primary reporting agencies here were the Fiske and Starr OICs.

Now, with regard to the first area of government conduct, the investigation as to finding out what happened, it's just educated guesses that the public can make about whether there was any negligence here.

But with regard to the second area of whether or not the reporting conduct by the Government was at least negligent, we know to a 100 percent certainty that there was at least negligence, because we know that... let me talk about what Justice Scalia talked about, the autopsy report.

To be more correct, Your Honor, it was a... a report by the only doctor to view Mr. Foster's body at the park.

It was not the autopsy report.

It was a two-page document.

Page 2 talked about the death-shot being mouth to neck.

Mr. Hamilton stated that Mr. Starr dealt with that in his report.

That's not true.

Mr. Starr ignored page 2 of the Haut report.

That's one of the problems here.

We talk about these different investigations.

Well, nobody investigated that language on the Haut report.

Nobody investigated the FBI...

Justice Ginsburg: Explain how the... the four documents that we're concerned with don't talk about... none of them show head and neck, so I don't... we... we hear only about those four documents, right?

Because the district court and the Ninth Circuit said, right, not all ten but only those four?

And none of those four have anything to do with head and neck.

Mr. Favish: I... I... I'm... I'm not sure I follow your question.

I... I understand that all 10 photos are at play here because...

Justice Ginsburg: Well, that... that's what I'd like clarified, because I thought that we are reviewing a decision that the Government has asked us to review, which said, Government, disclose four photographs.

Mr. Favish: My understanding is that the petition that was granted by the Government had, as its question presented, was the Office of Independent Counsel correct in withholding all of these photographs?

And under the...

Justice Ginsburg: But the court below said yes with respect to six of them.

So how do we get to review that?

Mr. Favish: Yeah, the...

Justice Scalia: Didn't you cross-petition on the six?

I thought you cross-petitioned.

Mr. Favish: Yes, I did, and that's being held over.

Justice Scalia: That's the answer.

Justice Breyer: Right.

Mr. Favish: So I believe all 10 photos are at play here in what decision you come up with, because the... all the issues presented by all three petitioners are subsumed under the question presented in the petition that you granted.

Justice Breyer: I'm worried about... suppose you won.

I take it the police investigate hundreds of thousands or millions or crimes every year, and in those investigations they may investigate people whom they later conclude are innocent, perhaps again hundreds of thousands of millions of them.

And, of course, there might, in respect to those people, be lots of newspapers or others who would like to have the police records about people found to be innocent.

Now, what would protect these thousands or hundreds of thousands of innocent people from having the police investigation of them displayed on the front page of their local paper if you were to win this case?

Mr. Favish: Well, if I was one of those people that you're talking about and...

Justice Breyer: Yes, well...

Mr. Favish: and there's information about me in the document, I have a privacy interest in the document, is what my position is.

Justice Breyer: Well, if you... but suppose you won this, if you won it, then you and everybody else, let's say millions of people, you don't mind perhaps, or not enough, you don't mind enough, but a lot of people would mind having a police report about them on the front page of the local paper.

Mr. Favish: Well, then, in that case...

Justice Breyer: Now, what is it that... if you win, I don't see that those people would have any protection whatsoever.

Mr. Favish: The protection would be in the balancing that's done to see...

Justice Breyer: The balancing would be that the police had found them innocent, and it's not that hard if you win this, where there have been five investigations, for somebody to say, oh, there was a police cover-up, they weren't really innocent.

Mr. Favish: I...

Justice Breyer: And if there are two investigations, they'll still say it, and there'll always be something that isn't perfect about the investigation, so they'll have a peg to hang their hat on.

Mr. Favish: Under the balancing, all the factors must be taken into account.

We have an almost unique situation here of a deputy White House counsel, public official, very close to the President of the United States, who was under investigation at the time, there were documents related to that investigation in Mr. Foster's office, that is why Kenneth Starr and Robert Fiske investigated this.

We're talking about the highest levels of government where there's a mysterious death by gunshot.

This is not one of the cases that you pose a hypothetical about.

This is something unique and...

Justice Souter: But I don't see how you can confine it to uniqueness.

Why doesn't everyone in every hometown in America have a... a very significant interest in whether their police department is adequately investigating and evaluating reports of homicide.

Of course they have an... an interest in that.

Mr. Favish: I...

Justice Souter: Every... everyone in... in... in any Federal district has an interest in whether the United States Attorney and the FBI and so on are investigating serious crimes, and I... I don't see how you can confine this to what you call the unique case.

Mr. Favish: I... I'm not saying it would be confined.

I'm saying that this is what sets those other... this case apart from the others.

But in principle, unless it falls within one of the exemptions, then that information would have to be made public...

Justice Souter: So...

Mr. Favish: under the FOIA as it currently exists.

Justice Souter: But here's the... I think one of the... the... one of the things that's bothering Justice Breyer, and it's bothering me, if we accept as broad a principle as you argue for, is this: that one of the things that... that most police investigators learn very early on is that when the investigate a crime and they investigate a suspect, the suspect's old friends and enemies come forward, and the latter frequently even ups some old scores

The amount of misinformation that is intentionally communicated to law enforcement officers is enormous.

They have to evaluate that, and it seems to me that that kind of misinformation is... is... is going to come very close to the front page in most cases if... if a principle as broad as yours is accepted.

Mr. Favish: Well, first of all, I believe in the FOIA, in exemption 7, there is an exemption for ongoing investigations, so much of what you're talking about...

Justice Souter: Well, yeah, but the... the problem for the person being investigated who is ultimately exonerated is going to be the same the day after the investigation is... is over.

So that... that doesn't answer the problem.

Mr. Favish: Yeah.

Now, I'm just talking about the privacy exemption in 7(C).

Now, I don't know in your hypothetical whether there would be other exemptions to prevent disclosure in those situations.

I'm not commenting on that.

Now, with regard... yes.

Justice Souter: Neither... neither do I, in fact.

Justice Scalia: Mr. Favish, here's... here's my... I mean, one... once you get past the first... the first issue, whether the privacy exemption at all covers this, if you assume it does cover it, you have relatives here who are going to be very much... very much harmed by... by this, as is shown by the mere fact that they've conducted this lengthy litigation.

It's lasted how long, and I'm sure it's been expensive.

Now, what is the interest on the other side?

If... if you... if you had a plausible case that... that these investigations reached the wrong conclusion, I'd say, yeah, that's a pretty significant governmental interest.

But I don't see that here.

I... you... you... you've just demonstrated some foot faults in... in each of the investigations.

Oh, this... this investigation made this mistake, this other investigation made the other mistake.

Who cares?

I mean, you really think that that is a matter of... of significant moment for... for the country, that there was an isolated mistake in... in one and another of the investigations?

Who cares?

Mr. Favish: Justice Scalia, I would not characterize them as foot faults.

I think these are major omissions of significant evidence that pointed away from the Government's official conclusion, and what it establishes is that the government reports are not trustworthy.

I agree that in the end those reports may be correct and it was suicide in the park.

Again, like I said earlier, I can just make educated guesses about that.

I'm not saying that it was definitely something other than that, but I am saying that when you have a high-level government official involved in this kind of investigation, and then you have so many investigations by the Government, apparently to get it right, that it took so many, you have a public interest here, unlike almost any other case I could imagine.

Chief Justice Rehnquist: Well, why should the high level of the victim make that much difference?

Mr. Favish: As opposed to just an innocuous neighbor down the street, perhaps.

Chief Justice Rehnquist: Well, say a... a public interest in something that happens in Albuquerque, New Mexico, maybe the assistant to the mayor is shot.

Mr. Favish: Because we're dealing with somebody who was working close to the President of the United States and we're talking about the Freedom of Information Act, whose primary purpose is to allow the people to be a check on government, not only to...

Chief Justice Rehnquist: Well, but... but why... why wouldn't that be just as true of this incident, hypothetical incident in Albuquerque as the Vince Foster slaying?

Mr. Favish: Well, it very well might be with regard to city or state government and states have their open records acts, and as we heard before, some of them prohibit death photos, but they do that by legislation.

We know that the State of Florida did that in response to amicus Teresa Earnhardt's plea.

That's what should be done here if they want the Federal Government to follow the lead of the state legislatures here.

It's not for the courts, with all due respect, to rewrite the FOIA exemption, so I... I'm not disagreeing that that's a valid concern, but the way...

Justice Kennedy: Well, you're... you're... you're getting away from the hypothetical.

The hypothetical, if you... if you insist on taking this line, could be refined so that we assume New Mexico has exactly the same statute and has interpreted exactly the same way.

Then you have to answer the hypothetical.

Mr. Favish: Oh, absolutely then.

If... if the balancing is done and you're talking about a law like FOIA where the primary purpose is to allow the people to ensure that their government is honest, because that's the heart of our democracy and we're talking about the integrity of our law enforcement agencies, I can think of no higher public interest than what's being asserted here.

And again, all of this is going to have to be...

Justice Kennedy: So... so... so then it doesn't just turn on the fact that it's Vince Foster and that... and the Chief Justice's point is... is that this was going to apply to every police department, every... every local government in the country that has an act like this?

Mr. Favish: Well, in principle, yes.

How the balancing would come out in each individual case would depend on the ad hoc balancing, but the principles would... would be the same if the law is the same, I agree.

Justice Breyer: When a person goes to work for the Government, on top of everything else, he even loses a private right to bury the body.

I mean, I'm speaking metaphorically, but, I mean, there are a lot of disadvantages in government, and you're saying one of the things would be that after death there is no protection, even to see that that body is buried and the photographs disappear for the... for the...

Mr. Favish: Well...

Justice Breyer: It would just go on forever.

Mr. Favish: Well, we're not talking about interfering with the... the burial process.

Justice Breyer: No, I know.

I'm speaking metaphorically.

I have Antigone in my mind.

Unidentified Justice: [Laughter]

Mr. Favish: Again, as I read the FOIA exemption 7(C), the privacy exemption, Congress has not legislated that the Government is allowed to withhold death photographs under this privacy exemption.

If we think that's a good public policy to enact, we should get Congress to hold hearings on it and we'll find out all the yeas and the nays and that's how good legislation comes.

And that's what should be done here and...

Justice Ginsburg: What does privacy cover without that?

Are you suggesting that there be a catalog A to Z of... and the... and the word privacy within the meaning of 7(c) covers, and that's...

Mr. Favish: Oh, in terms of what Congress might do or what this Court might do?

Justice Ginsburg: No, in terms of... the Court has no leeway unless Congress has such a catalog and this is one of the enumerated items...

Mr. Favish: Well, we know that Congress used the phrase, personal privacy, in the statute, and now the debate is over what did they mean by that.

And apparently, people are scribing words, Alice-in-Wonderland-like definitions to words, and if we go down that route...

Justice Ginsburg: But it's not very Alice in Wonderland-like to take the Brandeis definition that started this all.

Mr. Favish: What I like about the Brandeis article is...

Justice Scalia: I think it's Alice in Wonderland-like.

Mr. Favish: What I like about the Brandeis article is the section of that article that was cited by this Court in Reporters Committee.

The Brandeis article was one of the six scholarly articles.

Now, keep in mind, the Brandeis article, 1890, was maybe the earliest trying to come up with a definition of privacy, so the language isn't as precise as what, for instance, former Solicitor General Fried came up with in his seminal 1996 article, also cited by this Court.

So I would say that the best definition that provides the clearest workable standard is the right to control information about yourself, and again, on the second point here, I... I won't go down the litany of things that are in the brief talking about how there was misconduct, at least negligence with regard to reporting this case, but once I've established that, which I have, I think that the Government can no longer be trusted to filter the raw evidence to the people in this case, and I don't see how in a democracy that depends on the integrity of its law enforcement agencies in a case where you've had... well, by the way, there haven't been five investigations.

For instance, the Senate Whitewater Committee stated out the outset of its two-day hearings they're not looking into whether Mr. Foster committed suicide or not.

That's in the record.

Look at ER 603 and those pages.

So we're also looking at a situation with regard to the Fiske and Starr offices using FBI agents as part of their investigation, where the FBI did the initial investigation with the Park Police.

That's all in the record.

There's a conflict of interest there when you have FBI agents participating in an examination of what they already did.

So to call this five separate investigations is highly misleading, and I think that the only investigation that will matter in this case is the one that the people can do directly by seeing the raw evidence for itself, because for whatever reason, and I don't impugn the motives of Judge Starr or anybody else, I have no personal knowledge that he actually wrote the report.

He had lawyers in his office.

I don't know what the mechanics was.

I want to make that very, very clear.

I just want it to be known that we know objectively, and it's undisputed, there were major pieces of evidence omitted from the Fiske and Starr reports that point to something other than the official conclusion, not just little details, because those things, I agree, can be explained sometimes.

We're talking about major, major issues, and those are spelled out in the brief in detail for you.

Justice Scalia: Mr. Favish, are there any other Federal statutes that use the term privacy?

Mr. Favish: There is the Privacy Act enacted in 1974, and there is a definition which talks about personally identifying details, and I don't have that at hand right now, but it's consistent...

Justice Scalia: You don't think that covers relatives who are deceased?

Mr. Favish: I don't think it enacts a definition that gives somebody a privacy interest in a document...

Justice Scalia: I don't either.

Mr. Favish: which has no information about them, and I think that's indicative also.

And my one last point has to do with what the Ninth Circuit did here in addition to the reasons I've already explained.

They basically said that it isn't the release of the photos that will cause the harm, it's what's going to be done later, media intrusion and so forth, which I think violates what Justice Scalia said in his concurrence in the Ray case about the derivative uses.

Now, Ray was an exemption 6 case, but it focused on the word that's common to both exemptions, constitute, would the release or production constitute the invasion of privacy?

What the Ninth Circuit came up with really violates what Justice Scalia said in his concurrence in Ray, with which I... I agree wholeheartedly.

Chief Justice Rehnquist: Do you think the Ninth Circuit is bound to agree with Justice Scalia's concurrence?

Unidentified Justice: [Laughter]

Mr. Favish: I... I...

Justice Scalia: You just think they would be well advised to do so.

Unidentified Justice: [Laughter]

Mr. Favish: I think they would be well advised to have at least noted what Justice Scalia said and compare it to what they were doing, and if they had done that, they would see that what they did was wrong on that score.

And that's really all I have.

I thank you.

Rebuttal of Patricia A. Millett

Chief Justice Rehnquist: Thank... thank you, Mr. Favish.

Ms. Millett, you have four minutes remaining.

Ms Millett: Thank you, Mr. Chief Justice.

Justice Breyer, you hit the nail on the head when you said that if this type of investigation isn't enough, what's going to happen in the routine case?

This is the gold standard for law enforcement investigations, and if in this case, the fact that someone can think of something more that should have been said, something more should have been done, something more should have been revealed, then in the run-of-the-mill routine law enforcement case, there will be little protection left for privacy.

And the problem won't be just that this information will end up on the front page of the New York Times, but under the 1996 amendments to the FOIA, if... if the Government anticipates three or more requests for information, we're obliged to post the information on our Web sites for photographs taken after 1996... November 1996.

You won't need to go to findadeath dot com.

You can go to departmentofdefense dot gov to find pictures of... the 50 pictures that are routinely taken during autopsies of military office... officials killed overseas.

Justice Kennedy, you had asked about the remand, whether a remand was necessary.

It is not in this case.

On pages 56A through 59A of the petition appendix, the district court, before being redirected by the court of appeals, we think erroneously, ruled that the... the pictures should be withheld applying a less demanding standard than the one that we approached, that it just balanced the allegations of misconduct against the privacy interest, and concluded that the privacy interest still outweighed, assuming that... that just allegations count for something on the public interest side.

So if this Court agrees with the Government's position or requires anything more than allegations of misconduct, there'll be no need to remand.

It's also not a discretionary decision, it's a de novo review.

The balancing is undertaken in the first instance, but it's reviewed de novo by the court of appeals and de novo by this Court.

Justice Scalia, you talked about this doesn't sound like privacy.

Well, privacy is a language that has been used by not all, but a number of common law courts that are cited in our opening and reply brief.

And this Court's interpretation of the concept of privacy under the Freedom of Information Act has gone far beyond what tort law would protect.

There... I don't know that there's any court case that would suggest that rap sheets should be public records, like rap sheets would be protected under privacy conceptions in common law, so it would be extraordinary in this case to decide that the language Congress employed, personal privacy, is intended to be interpreted more narrowly than it has, at least at some... at some courts at common law.

Justice Scalia, you also asked about narrowly construing the exemptions.

It's... I agree that there are cases that say that, but in John Doe Agency v. a John Doe Corporation, this Court made clear that these exemptions still have to be interpreted in a way that allows their exempt... the purposes of the exemptions to be served.

And in a... and they should not be construed in the non-functional manner.

If law enforcement is to become the instrument... in the eyes of the public, the law enforcement, the Federal Government, will be the instrument of these types of disclosures and causing this type of pain to families that is likely to have a chilling effect on people's willingness to provide information to law enforcement.

You asked about other statutes, and we discussed the Privacy Act statute.

The Privacy Act statute doesn't apply to survivors, but that's because the language is specifically different.

The Privacy Act talks about... defines the... the records that are covered in terms of information about an individual and information that... to that pertains to the individual.

It has a sort of very... and it has to be information contained in a system of records that... where information can be retrieved by an individual identifier.

It's a very narrow and specialized definition.

It's exactly the type of definition that Congress would have used if it wanted a more narrow approach.

Thank you.

Chief Justice Rehnquist: Thank you, Ms. Millett.

The case is submitted.

Attribution:

The Oyez Project

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Lawrence and Garner v. Texas - Oral Argument

Fri, 09 Jan 2009 14:50:37 +0000

Case:

Lawrence and Garner v. Texas

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02-102_20030326-argument.mp3

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Transcript:

Argument of Paul M. Smith

Chief Justice Rehnquist: We'll hear argument next in No. 02-102, John Geddes Lawrence and Tyron Garner v. Texas.

Mr. Smith.

Mr. Smith: Mr. Chief Justice, and may it please the Court.

The State of Texas in this case claims the right to criminally punish any unmarried adult couple for engaging in any form of consensual sexual intimacy that the State happens to disapprove of.

It further claims that there's no constitutional problem raised by a criminal statute that is directed not just at conduct, but at a particular group of people, a law that criminalizes forms of sexual intimacy only for same-sex couples and not for anyone else in the State who has... has the right to make a free choice to engage in the identical conduct.

Petitioners are two adults who were arrested in a private home and criminally convicted simply because they engaged in one of the forms of sexual intimacy that is on the banned list in the State of Texas for same-sex couples.

They bring two constitutional claims to the Court today.

First, among the fundamental rights that are implicit in our concept of order of liberty, must be the right of all adult couples, whether same-sex or not, to be free from unwarranted State intrusion into their personal decisions about their preferred forms of sexual expression.

Second, there's no legitimate and rational justification under the Equal Protection Clause for a law that regulates forms of sexual intimacy that are permitted in the State only for same-sex couples, thereby creating a kind of a second class citizenship to that group of people.

Chief Justice Rehnquist: On your substantive due process submission, Mr. Smith, certainly, the kind of conduct we're talking about here has been banned for a long time.

Now you point to a trend in the other direction, which would be fine if you're talking about the Eighth Amendment, but I think our case is like Glucksberg, say, if you're talking about a right that is going to be sustained, it has to have been recognized for a long time.

And that simply isn't so.

Mr. Smith: The Court's cases, Mr. Chief Justice, say that history is a starting point, not the end point of the analysis.

And I think that it's important to look at history as a whole and one of the errors that I think that the Court made in Bowers v. Hardwick was only looking at the issue in terms of homosexual sodomy and not looking at the issue in general terms, which is the right of everyone to decide for themselves about consensual private sexual intimacy.

If you look at the history as a whole, you find a much more complicated picture.

First of all, you find that sodomy was regulated going back to the founding for everyone and indeed the laws in the 19th century didn't focus on same-sex couples, they focused on particular--

Justice Scalia: Well, you're getting to your equal protection argument now.

Let's... let's separate the two.

The first is, your... your... your fundamental right argument, which has nothing to do with equal protection?

Mr. Smith: --Well, Your Honor--

Justice Scalia: So the same-sex/other-sex aspect doesn't come into it--

Mr. Smith: --I think it does come into it, because if you're going to suggest that the state of the law in the books in the 19th century is the touchstone you have to take into account that in the 19th century at least on the face of the law married couples were regulated in terms of their forms of sexual intimacy that were created for them.

Justice Scalia: --It may well be, but so were same-sex couples.

Mr. Smith: Indeed, they all were, Your Honor.

Justice Scalia: So all same-sex couples could not... could not perform this act lawfully.

What more do you need than that?

It was prohibited.

When you go beyond that and say, oh, but it was also prohibited for... for other sex couples, you're getting into an equal protection argument, it seems to me, not a fundamental right argument.

Mr. Smith: I guess I'm suggesting Mr.... Justice Scalia, that it's been conceded here by this State, it was conceded by the State of Georgia 17 years ago, that married couples can't be regulated as a matter of substantive due process in their personal sexual expression in the home.

That means that the state of the law on the books in the 19th century can't be the deciding factor.

Justice Scalia: They conceded it.

I haven't conceded it.

Mr. Smith: Your Honor.

That may well be true.

I was... I was working with the assumption that there may be Justices who... of the view that married couples do have such a right and I am suggesting that the real issue here is whether that fundamental right extends outside the marital context into other unmarried couples who form bonds and have... and... for whom sexual intimacy plays an equally important role in their lives.

Justice Ginsburg: Were you talking specifically about this Eisenstadt against Baird where there was an unmarried couple... while there was an unmarried person and the conduct in question would have been perhaps in the 19th century, early 19th century, criminal?

Are you talking about fornication?

Mr. Smith: Yes, Justice Ginsburg.

I think the Court in... has moved from Griswold to Eisenstadt... has moved in the contraception area outside of the marital context to the unmarried context, certainly the right... the qualified right to abortion applies to unmarried people, as well as married people.

And I think that the Court in... in looking at this issue of the scope of the fundamental right to make choices about sexual intimacy ought to take into account not just the state of law on the books in the 19th century but a couple of other factors, one the change in enforcement in the last 50 years because the Court's fundamental rights cases all do look at current laws, as well as 19th century law and also even in the 19th century, the fact that there's no record of active enforcement of these laws against conduct... of adults consensual occurring in the private setting and that's true for married couples, it's true for different-sex couples who weren't married, it's true for same-sex couples.

The enforcement of the sodomy laws of this country going back to the founding involves coercion, it involves children.

It involves public activity.

It doesn't involve the kind of conduct that's at issue here.

So you really have a tradition of respect for the privacy of couples in their... in their home, going back to the founding and I think then what began to happen in 1960 was a recognition that we should take that tradition and... and turn it into positive law on the books.

And so you now had three quarters of the States who no longer regulate this conduct for anyone based on a recognition that it's not consistent with our basic American values about the relationship between the individual and the State.

Justice Scalia: Well, it depends on what you mean by our basic American values, to revert to what the Chief Justice was suggesting earlier.

Really what's at issue in this case is whether we're going to adhere to... in the first part of the case, not the equal protection aspect.

It's whether we're going to adhere to what... what we said in... in Glucksberg, mainly that before we find a substantive due process right, a fundamental liberty, we have to assure ourselves that that liberty was objectively deeply rooted in this Nation's history and tradition.

That's what we said in Glucksberg and we've said it in other cases.

Or are we going to depart from that and go to the approach that we've adopted with regard to the Eighth Amendment, which is it evolves and changes in... in social values will justify a new perception of what is called unusual punishment.

Now, why should we... why should we slip into the second mode?

I'm... I mean, suppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws.

Does that make flagpole sitting a fundamental right?

Mr. Smith: No, Your Honor, but the Court's decisions don't look just at history, they look at the... at the function that a particular claimed freedom plays in the lives of real people.

That's why contraception became an issue.

That's why abortion became an issue.

Justice Scalia: I don't know what you mean by the function it plays in the lives of real people.

Mr. Smith: The Court has said that--

Justice Scalia: Any law stops people from doing what they really want to do.

Mr. Smith: --The Court has said that it's going to use reasoned judgment to identify a realm of personal liberty that involves matters of central and core to how a person defines their own lives, and relates to key other people.

It's about moral upbringing of children in the home.

It's about procreation or nonprocreation in your sexual relations with your mate.

It's about basic questions of what kind of a family you're going to live with and other intimate associations.

Chief Justice Rehnquist: Well, you say it's about procreation or nonprocreation, but none of the cases that you have talked about involved nonprocreation, did they?

Mr. Smith: They certainly involved the right to decide to engage in sexual relations with... while preventing procreation, that's what... that's what Griswold and Eisenstadt and Carey all say you have a right to do.

That there's a right to decide whether to bear and beget children and then that right resides with unmarried people as much as it resides with married people.

And I submit to you that it's illogical, fundamentally illogical to say that an unmarried couple has a right free of State intrusion to decide whether or not to have procreative sex or nonprocreative sex, but doesn't have the right to be free from State intrusion... free from a law that says you can't have any sexual intimacy at all.

There's a... there's a jagged piece missing from the edifice of this Court's substantive fundamental rights jurisprudence.

Justice Scalia: It doesn't say you can't have... you can't have any sexual intimacy.

It says you cannot have sexual intimacy with a person of the same sex.

Mr. Smith: This particular law does that, yes, Your Honor, but certainly our... our submission is that fornication laws and... and laws involving sodomy regulation more broadly would be equally unconstitutional, because they involve--

Justice Souter: But your position, as I understand it, is even if you take the narrowest view of Glucksberg and even if you say there's got to be a positive historical sanction, that in fact there is no historical... no substantial historical evidence to the contrary because, A, the... the sodomy laws were not enforced against consensual activity historically and B, they were not aimed at homosexual as opposed to sodomy in general?

Mr. Smith: --Right.

Justice Souter: Is that... your historical point, you say even if I accept your argument, I should win?

Mr. Smith: Yes, Your Honor.

I think first of all that the positive law, the law on the books proves too much because it intruded right into the marital bedroom and that the record of enforcement which may be more informative actually supports us rather than supporting the notion that this is something that can be regulated.

Justice Scalia: What do you mean by the record of enforcement, that there were... that what happened in this case was an accidental intrusion of the police?

They didn't come into the bedroom looking for people conducting illicit sexual relations?

They were there for another reason and happened to discover these... these men in that conduct.

What do you mean by lack of enforcement?

The police have not gone around knocking on bedroom doors to see if anyone... I mean... this is not the kind of a crime that the police go around looking for, but do you have any evidence to show that when they... when they found it being committed, they turned a blind eye to it and did not prosecute it?

Mr. Smith: The evidence we have is the... is the absence of reported cases discussing arrests for that kind of conduct.

Justice Scalia: Well, that's because it's... it's an act committed in private, and... and the police respect the privacy of... of one's home, of one's bedroom, and so they don't investigate and find it.

But it seems to me what you would need is evidence that when the police discovered this matter, they said, oh, well, these are not laws that we enforce.

I don't see any evidence of that sort.

Mr. Smith: Certainly it seems to us there's a significance to the fact that it has never been treated as, for example, drug use in the home has been treated.

And people do... the police obviously do actively seek to infiltrate homes to find that kind of activity, it's been treated in a categorically different way.

But perhaps--

Justice Breyer: To what extent can you characterize it?

I mean, the ACLU brief has a lot of evidence along this line.

I... and it seemed to me they want to characterize it as saying that the history has gone exactly the opposite direction than what's been suggested.

But if you go back to colonial times really, the laws not only were different but look at the prosecutions.

And they did prosecute people for sex crimes.

But they didn't prosecute people for same-sex crimes.

And then if you go across the history, it's only recently that people have been prosecuted for same-sex crimes.

Is that a fair characterization?

What is the real record?

Mr. Smith: --The argument about 19th century enforcement is that they didn't prosecute anyone for private and consensual crimes involving adults, that they worried about children, they worried about public activity, they worried about coercion, but that they didn't worry about same-sex or different-sex sodomy.

Now as to the equal protection point which I think I should get to in my remaining time.

This is a statute which in addition to intruding into that area of important fundamental protections, limits its focus just to one small minority of the people of the State of Texas.

It says that these specified forms of sexual intimacy called deviate sexual intercourse are illegal only for same-sex couples and not for anyone else in the State of Texas.

Justice O'Connor: Well, what about a statute that covered both?

Mr. Smith: Well, I think that would be unconstitutional under my first point, Your Honor.

Justice O'Connor: Right.

Mr. Smith: I think there is a multiple... multiply unconstitutional statute, because it does the second thing as well, it says that--

Justice Kennedy: Well, if the statute covered both, would there be an equal protection argument?

Mr. Smith: --If there was a record of enforcement almost exclusively as to same-sex couples, I think there would be potential constitutional problems there, but the statutory language itself would not involve an equal protection problem of the same sort that we're dealing with here.

Justice Scalia: Mr. Smith, aren't there a lot of statutes like that?

Aren't there statutes in many States about adultery that don't cover sexual relations of one of the married couple with someone else of the same sex?

Are they unconstitutional because of denial of equal protection?

Mr. Smith: I don't know whether statutes actually are written that way, Your Honor.

The point I would make is that when a statute--

Justice Scalia: What about rape laws?

There are... there are rape laws that... that only apply to... to male/female rape.

Mr. Smith: --That may be as well.

I think--

Justice Scalia: You think that they're unconstitutional?

Mr. Smith: --I didn't suggest that they're unconstitutional.

My point is that when a statute is limited to one particular group of people, particularly a minority of people in the State, that that limitation itself has to be justified under equal protection, that that's a classification of people, not merely a definition of conduct.

And that if the... if the justification of the line that was drawn here is... is insufficient as a matter of mere rationale basis analysis.

Because--

Justice Scalia: I don't understand that.

Suppose the State has a rape law that... that, you know, that really requires the penetration of the female sex organ by... which is the classic common-law definition definition of rape, and it has no... no law of... about homosexual rape.

You think that that law would be unconstitutional?

Mr. Smith: --I think it would have to be justified by the State.

They may well come in with evidence that this is not a problem that needs to be addressed or that the victims are more able to protect themselves, they may have... they may have--

Justice Scalia: One step at a time?

This is more common?

This is... or this is something that we find more... more... more... more odious?

Mr. Smith: --Well, the one thing that I submit, the Court, the State should not be able to come in to say is we are going to permit ourselves the majority of people in our society full... full and free rein to make these decisions for ourselves but there's one minority of people don't get that decision and the only reason we're going to give you is we want it that way.

We want them to be unequal in their choices and their freedoms, because we think we should have the right to commit adultery, to commit fornication, to commit sodomy and the State should have no basis for intruding into our lives but we don't want those people over there to have the same right.

Justice Scalia: I mean you you can put it that way, but society always... in a lot of its lives makes these moral judgments, you can make it sound very puritanical, the... you know, the laws... the laws against bigamy, I mean, who are you to tell me that I can't have more than one wife?

You blue-nose bigot.

Sure.

You can make it sound that way, but these are laws dealing with public morality.

They've always been on the book, nobody has ever told them they're unconstitutional simply because there are moral perceptions behind them.

Why is this different from bigamy?

Mr. Smith: First of all, the first law that's appeared on the books in the States of this country that singles out only same sex sodomy appeared in the '60s and the '70s and it did not... and it does not go way back, this kind of discrimination.

Now, bigamy involves protection of an institution that the State creates for its own purposes and there are all sorts of potential justifications about the need to protect the institution of marriage that are different in kind from the justifications that could be offered here involving merely a criminal statute that says we're going to regulate these peoples behaviors, we include a criminal law which is where the most heightened form of... of people protection analysis ought to apply.

This case is very much like McLaughlin, Your Honor, where you have a statute that said we're going to give an specially heightened penalty to cohabitation, but only when it involves a white person with a black person.

That interracial cohabitation is different, and the State there made the argument we're merely regulating a particular form of conduct, and that's a different form of conduct than... than intro racial cohabitation.

And this Court very clearly said no.

You're classifying people.

And that classification has to be justified.

And this Court at many times said a merely disapproval of one group of people, whether it be the hippie communes in Moreno or the mentally retarded in Cleburne, or indeed gay people.

Chief Justice Rehnquist: But all... almost all laws are based on disapproval of either some people or some sort of conduct.

That's people legislate.

Mr. Smith: And what this Court does under the equal protection clause is... is... standard as a bull work against arbitrary government when the... when there is no rational justification for the line that is drawn.

Justice O'Connor: Well, do you... do you... understood in order to win under an equal protection argument, do you have to apply some sort of heightened scrutiny?

Mr. Smith: We certainly do not think we do, Your Honor.

We think this fails rational basis scrutiny, just as the law did in Romer, in Cleburne, in Moreno, in Eisenstadt, all of those laws were thrown out under rational basis scrutiny, because the State basically didn't come up with anything other than we want it that way.

We want these people to be excluded.

We'd had distaste for them.

We disapprove of them.

It's mere disapproval, or hostility, however historically based, is not sufficient.

And certainly even applying the rational basis--

Justice Scalia: We said the opposite in bowers, didn't we?

Overrule bounds essentially on that point?

Mr. Smith: --Well, certainly bowers is not an equal protection case and it didn't involve this kind of discrimination.

Justice Scalia: The equal protection and on to the--

Mr. Smith: No I was still talking about the level of scrutiny under equal protection, Your Honor.

Justice Scalia: --Maybe you ought to hold up one hand so I'll know which?

Mr. Smith: It's hard when you have these two points to shift back and forth.

Justice Scalia: I understand.

We had the same problem in the last case--

Mr. Smith: Three weeks ago, yes, Your Honor.

The... but the Court in applying even the rational basis standard has not been insensitive to the reality of what the world is like, and to the fact that some groups of... some classifications tend to be involving minorities that have had histories of discrimination against them and that the overall effect of some line-drawing can be very harmful.

In Romer itself, the Court looked at the actual effects of the... of the amendment in the Constitution and all of the many ways in which it caused harm.

Here you have a statute that while it... while it purports to just to regulate sexual behavior, has all sorts of collateral effects on people.

People in the States who still regulate sodomy everyday they're denied visitation to their own children, they're denied custody of children, they're denied public employment.

They're denied private employment, because they're labeled as criminals merely because they've been identified as homosexuals.

And that we submit--

Chief Justice Rehnquist: --If you prevail, Mr. Smith, and this law is struck down, do you think that would also mean that a State could not prefer heterosexuals to homosexuals to teach kindergarten?

Mr. Smith: --I think the issue of... of preference in the educational context would involve very different criteria, Your Honor, very different considerations, the State would have to come in with some sort of a justification.

Justice Scalia: A justification is the same that's alluded to here, disapproval of homosexuality.

Mr. Smith: Well, I think it would be high... high problematic, such a custody case.

Justice Scalia: Yes, it would?

Mr. Smith: If that were the only justification that could be offered, there was no some showing that there would be any more concrete harm to the children in the school.

Justice Scalia: Only that the children might... might be induced to... to follow the path of homosexuality.

And that would not be... that would the not be enough?

Mr. Smith: Well, I... I think the State has to have a greater justification for its discrimination than we prefer pushing people towards heterosexuality.

That amounts to the same thing as disapproval of people's choices in this area and there has to be a more... more reasons and justifiable distinction than simply we prefer this group of people, the majority, instead of this group of people, the minority.

Justice Jackson in the railway express case said very eloquently that the equal protection clause is an important bull work against arbitrary government because it's there to make sure that legislators don't avoid political retribution by imposing onerous burdens only on one minority, but that in fact the majority will live by the same rules as purports to impose on everybody else.

Justice Ginsburg: Mr. Smith before you continue down to the equal protection line.

Your first argument was the right of personal privacy in one's most intimate sexual relations, you were asked and you didn't get a chance to answer because you went back on your equal protection track, you are asking the Court to overrule bowers against Hardwick.

I thought that was very--

Mr. Smith: Yes, Your Honor.

We're asking you to overrule it and we think that the right of... of the fundamental right of unmarried people to make these choices about private adult consensual intimacy applies to different sex couples as well as same sex couples and that Bowers was wrong for essentially three reasons, first it posed the question too narrowly by focusing just on homosexual sodomy, which is just one of the moral choices that couples ought to have... that people ought to have available to them.

And second in its analysis of history, which I think I explained already and third, and perhaps most importantly, in the assumptions that the Court made in 1986 about the realities of gay lives and gay relationships, the Court simply asserted in the Bowers case that there's no showing that has been demonstrated between the opportunity to engage in this conduct and family.

And certainly while it may not have been shown in that case or even apparent to the Court this 1986, I submit it has to be apparent to the Court now that there are gay families that family relationships are established, that there are hundreds of thousands of people registered in the Census in the 2000 census who have formed gay families, gay partnerships, many of them raising children and that for those people, the opportunity to engage in sexual expression as they will in the privacy of their own homes performs much the same function that it does in the marital context, that you can't protect one without the other, that it doesn't make sense to draw a line there and that you should protect it for everyone.

That this is a fundamental matter of American values.

So those are the three reasons we ask you to overrule Bowers v. Hardwick as to the fundamental rights aspect of the case and that we think that that is an area where the Court should go... should go back and reconsider itself.

The Court has now left open for nearly 30 years the question of whether anybody outside has a right... has a privacy right to engage in consensual sexual intimacy in the privacy of their home.

And I submit to you, you know, while the Court has left that unanswered, the American people have moved on to the point where that right is taken for granted for everyone.

Most Americans would be shocked to find out that their decision to engage in sexual intimacy with another person in their own home might lead to a knock on the door as occurred here and a criminal prosecution.

And that... that reality is something that the Court needs into account and certainly in so doing, it shouldn't... in constructing its fundamental rights edifice draw distinctions between gay couples and other couples.

Justice Scalia: --You probably say the same about adultery, you think adultery laws are unconstitutional?

Mr. Smith: I think that the state has--

Justice Scalia: I mean think people probably feel the same way about that, you know.

It may not be a nice thing to do, but I certainly don't expect a knock on the door and go to jail for it.

Mr. Smith: --Your Honor, adultery is a very different case.

It involves the State interests in protecting the marital contract which people voluntarily take on.

And... and so in assessing.

Justice Scalia: Why is the marital contract important to the State?

Because it's the source of... of the next generation, right?

Mr. Smith: Sure, the State is--

Justice Scalia: And you think that there's not some of the same thinking behind the conscious choice of the State to favor heterosexual and marital sex over homosexual sex?

Mr. Smith: --Well, I can understand a law which says we're going to attempt to channel heterosexuals towards marriage by making them... making it illegal for them to have sex without marriage.

I can't understand that law under... under that kind of rational which only regulates same sex couples and says you can't have sex but everyone else has a right to do that.

As for adultery and all of the other parade of horribles which people have raised in their briefs, it seems to me you've got to look at the individual interests and the State interests and their dramatically different in all of those cases incest, prostitution, all of these... bestiality, all of these things either there's very little individual interests or there's very heightened State interest or both, in all of those cases, so the idea that by recognizing the right of all adult couples to make choices like this in their own home the Court is going to open up a whole can of worms, I submit, is correct.

If I could reserve the balance of my time, Your Honor.

Argument of Charles A. Rosenthal

Chief Justice Rehnquist: Very well, Mr. Smith.

Mr. Rosenthal, we'll hear from you.

Mr. Rosenthal: Give me just a moment.

Mr. Chief Justice, and may it please the Court.

The State humbly submits that enforcement of Texas Penal Code Statute 21.06 does not violate the 14th Amendment of the Constitution because this Court has never recognized a fundamental right to engage in extramarital sexual conduct and because there is a rational basis for the statute sufficient to withstand equal protection scrutiny.

I'd like to begin with a brief discussion of substantive due process.

From a practitioner's standpoint, it appears that the jurisprudence of this Court appears to resolve the means by which the Court entertains a claim of novel protected liberty interests.

Since the Constitution does not expressly address the issue of privacy or of sexual conduct, we look to the Court's precedents and to the history of our people.

If a historical, traditional analysis applies, it then serves as objective guideposts to guide this Court, as long as those ideals and laws do not infringe on fundamental rights.

The Court has maintained that designation of a liberty interest is done... not done with impunity.

But only those interests that appear to be carefully identified asserted rights should be drawn and should be considered as liberty interests.

The record in this case does not particularly show which rights the petitioners are asking to uphold.

Justice Scalia: I... I don't understand what you mean by that.

Aren't we clear what right they're seeking to uphold?

Mr. Rosenthal: No, sir, they're... they're asking for the right of homosexuals to engage in homosexual conduct.

Justice Scalia: Right.

Mr. Rosenthal: But there's nothing in the record to indicate that these people are homosexuals.

They're not homosexuals by definition if they commit one act.

It's our position that a heterosexual person can also violate this code if they commit an act of deviate sexual intercourse with another of the same sex.

Justice Scalia: Why aren't... why aren't they seeking to vindicate the right of either homosexuals or heterosexuals to commit homosexual act?

What difference does that make?

Mr. Rosenthal: The difference it makes is as the... as the record is set out, it does not really define the issues such that the Court can actually give the petitioners a... a specific form of relief.

Justice Ginsburg: But the... the... the statute, Texas has already decided that for us.

It has called this homosexual conduct, so whether it's a heterosexual person or a homosexual person, the crime is engaging in homosexual conduct.

Mr. Rosenthal: That's correct.

Justice Souter: You don't even have to get to the... as I understand it, you don't even have to get to the characterization of homosexual.

The statute clearly defines certain acts committed by or together with individuals of the same sex and that's your class, isn't it?

Mr. Rosenthal: Yes, it is.

Justice Souter: What more do we need?

Mr. Rosenthal: We're... the class actually is people who violate the act, not classes of individuals based upon sexual orientation.

Justice Kennedy: Well, I... I can see that your point may have some relevance on the equal protection side of the equation, some relevance, I don't think it may be controlling.

It... it doesn't seem to meet the arguments that's made under the substantive liberty part of the argument with reference to Bowers.

Mr. Rosenthal: I beg your pardon?

Justice Kennedy: It doesn't meet the petitioners' argument with respect to Bowers versus Hardwick, which they say should be overruled.

Mr. Rosenthal: Well, of course we... we believe that Bowers versus Hardwick is... is good law.

It's substantial law and that this Court should not overrule Bowers--

Justice Kennedy: But that question is certainly clearly before us.

I mean this is your statute.

You convicted the people for these acts and you have to be... you have it.

Mr. Rosenthal: --Yes, sir.

And it's our position that Bowers versus Hardwick is still good law, that there's nothing that's changed about the fundamental liberties or the... or the history or traditions of our country that should make the analysis in Bowers incorrect any longer.

The petitioner also claims that the mores of our nation have changed to the point where physical homosexual intimacy is now part of the fabric of American values.

And it's our position this cannot be correct.

Even if you infer that various States acting through their legislative process have repealed sodomy laws, there is no protected right to engage in extrasexual... extramarital sexual relations, again, that can trace their roots to history or the traditions of this nation.

Justice Breyer: Their basic argument, I think--

Justice Scalia: --I... I'm sorry.

I didn't get that argument.

I thought you were going to say... you were responding to the argument that the morals haven't changed, or that the morals have changed so that homosexuality is now approved.

And you respond to that by saying that there's no tradition?

I mean, that's... that's a totally different argument from tradition.

I mean, the... the argument is tradition doesn't matter.

Mr. Rosenthal: Well, history... tradition does not matter in terms of whether or not it... it can be a protected liberty interest.

Justice Scalia: Why... why do you think that the public perception of... of homosexual acts has... has not changed?

Do you think it hasn't?

Mr. Rosenthal: The public perception of it?

Justice Scalia: Yes, yes.

Do you think there's public approval of it?

Mr. Rosenthal: Of homosexuals, but not of homosexuality activity.

Justice Scalia: What do you base that on?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What do you base that on?

Mr. Rosenthal: Well, even--

Justice Scalia: I mean I think there ought to be some evidence which... which you can bring forward?

Mr. Rosenthal: --Sure.

Justice Scalia: Like perhaps the failure of the Federal Congress to add the sexual preference to the list of protected statuses against which private individuals are not permitted to discriminate, that addition has been sought several times and it's been rejected by the Federal Congress, hasn't it?

Mr. Rosenthal: Yes, sir, and... and in addition, what I was trying to say by the fact that various States have changed their position on sodomy, they've done it through the legislative process.

And that's where we believe this belongs, is in the State House of Texas, not this Court.

Justice Scalia: Yes, but I thought you were responding to the argument that the public perception hasn't changed.

That there still is... is a public disapproval of homosexual acts.

And you can't establish that by saying that the States have repealed their homosexual laws.

Mr. Rosenthal: Well, I think it goes back to whether the... where... whether people in Texas and people in the other States that had this law on their books actually accepted through their representative government.

I think it comes down to the... the actual people who... who determine the consensus and mores of the State or the... or the elected legislators.

Justice Scalia: Might there be a difference between the people's willingness to prosecute something criminally and the people's embracing of that as a fundamental right?

Mr. Rosenthal: Well, certainly.

And just because someone has decriminalized sodomy doesn't mean that they embraced that practice as something that ought to be taught in the schools as was mentioned before.

Justice Breyer: But the argument of... of Bowers, to overrule Bowers is not directly related to sodomy.

It's related, but not directly.

It's that people in their own bedrooms, which have their right to do basically what they want, it's not hurting other people.

And they... the other side... says Bowers understated the importance of that.

It got the history wrong.

It didn't understand the relationship of the sodomy to families and in addition, Bowers has proved to be harmful to thousands and thousands and thousands of people, if not because they're going to be prosecuted, because they fear it... they might be, which makes it a possible instrument of repression in the hands of the prosecutors.

Now, that's the kind of argument that they're making.

Harmful in consequence, wrong in theory, understating the constitutional value.

Mr. Rosenthal: All right--

Justice Breyer: All right, now how do you respond to that?

Mr. Rosenthal: --Okay.

First of all, let me... let me correct something that... that's very minor at this point, but the allegation was made in petitioners' argument that people can... convicted of homosexual conduct are banned from jobs and housing and all... and all that kind of thing.

In Texas, homosexual conduct is a class C misdemeanor.

That is, it is the lowest misdemeanor... or the lowest prohibition that Texas has.

Justice Breyer: That I didn't bring in in my question.

Mr. Rosenthal: Yes, sir.

Justice Breyer: My question was, getting those sort of three or four basic points, I would like to hear your... your straight answer to those points--

Unknown Speaker: [Laughter]

Justice Breyer: --because on their face, they're... I mean, I'm not... not a criticism, I mean, directly responding, directly responding to the... to the... to the question.

Mr. Rosenthal: Well, it's our position that the line should be drawn at the marital bedroom, through which we can... through the law enforcement or anyone else cannot pass unless something illegal happens inside that bedroom.

Justice Breyer: Well, if this is drawing the line at the bedroom door, this case is inside the bedroom, not outside.

That's the statute makes criminal, to my understanding, of it what takes place within the bedroom through consent.

Am I right about that?

Mr. Rosenthal: You're right about that, but--

Justice Breyer: And why isn't that something that the State has no business getting involved in--

Mr. Rosenthal: --First of all, let me say--

Justice Breyer: --as long as it doesn't hurt anybody?

Mr. Rosenthal: --First of all, let me say that consent may alleged in this case, but consent is not proven in the record in this case.

There's... there is nothing in the record that shows that people are capable of giving consent or that consent was, in fact, given, but even given that, I... I think that the... that this Court having determined that there are certain kinds of conduct that it will accept and certain kinds of conduct it will not accept may draw the line at the bedroom door of the heterosexual married couple because of the interest that this Court has that this Nation has and certainly that the State of Texas has for the preservation of marriage, families and the procreation of children.

Justice Ginsburg: Does Texas permit same-sex adoptions... two women or two men to adopt a child or to be foster parents?

Mr. Rosenthal: I don't know the answer to that, Justice.

Justice Ginsburg: Well, in portraying what Texas sees as a family and distinguishing both married and unmarried heterosexual people from homosexual people, those things wouldn't go together if the State said at the same time said same sex couples are qualified to raise a family.

You can adopt children, you can be foster parents.

You don't know what... what the Texas law is on that?

Mr. Rosenthal: I do not know what that Texas law... what the Texas law says in that regard.

Justice Ginsburg: I think it would be relevant to your argument that they're making... that Texas is making the distinction between kinds of people who have family relationships and can be proper guardians of children and those who can't.

Mr. Rosenthal: Well, again, Your Honor, we're not saying that they can't be proper guardians and we can't say that they can't raise children.

That... that's not the issue.

The issue--

Justice Scalia: You're fairly certain that they can't procreate children, aren't you?

Unknown Speaker: [Laughter]

Mr. Rosenthal: --We are sure that they... that they can't do that.

But we're also not... not penalizing their... their status.

We're penalizing only the particular activity that those unmarried couples may have with respect to whether they have sexual intimacies.

Justice Stevens: Does Texas prohibit sexual intercourse between unmarried heterosexuals?

Mr. Rosenthal: Well, it used to.

It does not do that now, unless the sexual intimacy is in public or where someone might view--

Justice Stevens: No, say in a... a private situation like this, it would not... it would not be prohibited?

Mr. Rosenthal: --It does not criminalize it, it does not condone it.

Justice Scalia: What about adultery?

Mr. Rosenthal: I beg your pardon?

Justice Scalia: What about adultery?

Mr. Rosenthal: Again, adultery is not penalized in Texas, but it is certainly not condoned in Texas.

[Laughter]

Justice Breyer: All right, so you said... you said procreation, marriage and children, those are your three justifications.

Now from what you recently said, I don't see what it has to do with marriage, since, in fact, marriage has nothing to do with the conduct that either this or other statutes do or don't forbid.

I don't see what it has to do with children, since, in fact, the gay people can certainly adopt children and they do.

And I don't see what it has to do with procreation, because that's the same as the children.

All right.

So... so what is the justification for this statute, other than, you know, it's not what they say on the other side, is this is simply, I do not like thee, Doctor Fell, the reason why I cannot tell.

Unknown Speaker: [Laughter]

Justice Breyer: Now, what is aside... aside from that?

Mr. Rosenthal: I think what... what I'm saying is... and I had not gotten into the equal protection aspect of the... of the argument yet, but under the equal protection argument, Texas has the right to set moral standards and can set bright line moral standards for its people.

And in the setting of those moral standards, I believe that they can say that certain kinds of activity can exist and certain kinds of activity cannot exist.

Justice Breyer: Could they say, for example, it is against the law at the dinner table to tell really serious lies to your family?

Mr. Rosenthal: Yes, they can make that a law, but there would be no rational basis for the law.

Justice Breyer: Oh, really.

It's very immoral.

I mean, I know there's certainly... it's certainly immoral to tell very serious harmful lies to your own family under certain circumstances and around the dinner table, some of the worst things can happen.

Unknown Speaker: [Laughter]

Justice Breyer: But the... the... so Texas could go right in there and any kind of morality that they think is just immoral or bad, cheating, perhaps.

What about rudeness, serious rudeness, et cetera?

Mr. Rosenthal: Well, again, if... if Texas did pass the law, it would have to... have to show through some rational basis test that it's rationally related to some State interest.

Justice Scalia: Mr. Rosenthal, don't you think that what laws a State may constitutionally pass has a lot to do with what laws it has always been thought that a State can constitutionally pass, so that if you have a 200-year tradition of a certain type of law... and I don't know of a 200-year tradition of laws against lying at the dinner table... the presumption is that the State can within the bounds of... of the Constitution to pass that law in... as declaring what it has proscribed as contra bonos mores, a term that's been in the common law from the beginning as against good morals, bigamy, adultery, all sorts of things like that, and isn't that determined pretty much on the basis of what kind of laws the State has traditionally been allowed to pass?

Mr. Rosenthal: Certainly.

And it goes... it goes to things as diverse as--

Justice Stevens: I don't suppose you're going to argue that Loving against Virginia was incorrectly decided, are you?

Mr. Rosenthal: --Oh, certainly not.

Justice Stevens: And that was certainly a long tradition that supported that--

Mr. Rosenthal: But it also violated a fundamental right.

Justice Stevens: --And that's the issue here.

Unknown Speaker: [Laughter]

Mr. Rosenthal: Yes, sir.

And the fundamental right that was asserted there is... is a long-established fundamental right that we don't... we don't treat races differently because we think that one's inferior or we stereotype someone--

Justice Scalia: There was a constitutional text there, wasn't there, with Loving versus Virginia.

I thought there was something about a Civil War and no discrimination on the basis of race.

Mr. Rosenthal: --Yes, and the same with... with the case that was cited from Florida.

Justice Souter: When... when did Texas select homosexual sodomy as... as a subject of specific criminal prohibition?

Mr. Rosenthal: Sodomy as a... as a--

Justice Souter: My question--

Mr. Rosenthal: --Yes, sir.

Justice Souter: --Go ahead, but my question is--

Mr. Rosenthal: Yes, sir.

Justice Souter: --is about sodomy among two adults of the same sex?

Mr. Rosenthal: Yes, sir.

And sodomy had... has a longstanding tradition of the history of Texas of sodomy being against the law, however--

Justice Souter: When... when was... was the first statute passed?

I think 200 years was mentioned.

Was there a law in the books in 1803?

Mr. Rosenthal: --No, I don't think Texas was a State back then.

[Laughter]

Justice Souter: It doesn't have to be... it doesn't have to--

--Territorial--

Justice Scalia: --It's a trick question, Mr. Rosenthal.

Don't... don't fall into that trap.

Unknown Speaker: [Laughter]

Justice Souter: 1803 or the first date of the Texas legislature's meeting, did they pass it at the... at the first meeting of the legislature?

Mr. Rosenthal: Well, certainly in the... in the 1854 Penal Code, the... the kinds of activity that... that were classified now as sodomy were against the law.

However, I think to address your question--

Justice Souter: When did... when did they single out homosexual sodomy?

Mr. Rosenthal: --In 1973, in the passage of the 1974 Penal Code.

Justice Souter: So the issue here doesn't have much of a longstanding tradition specific to this statute, does it?

Mr. Rosenthal: Well, not specific to... not specific to that statute, but it has a longstanding tradition in Texas as being something that should be proscribed and something that is regarded as immoral and unwholesome.

Justice Scalia: Well, homosexual sodomy was unlawful in Texas from when?

There was not a statute addressed just to that.

It was addressed to sodomy in general, but homosexual... but homosexual sodomy included, and that law goes back how long?

To 1803?

Mr. Rosenthal: To the... to the time that Texas was a republic, before it--

Justice Breyer: But what about the statute which this Court I think had to grapple with, people felt during World War I that it was immoral to teach German in the public schools.

So then would you say that the State has every right to do that, parents want their children to learn German, but the schools forbid it?

See, the hard question here is can the State, in fact, pass anything that it wants at all, because they believe it's immoral.

If you were going to draw the line somewhere, I guess you might begin to draw it when the people is involved inside his own bedroom and not hurting anybody else.

Now that... that now... so you say it's morality.

I... I agree many people do believe that that's a question of morality.

Many do not, but nonetheless, what can you add to what you're saying, other than simply asserting its morality?

Because I don't think you think that the State could pass anything in the name of morality?

Mr. Rosenthal: --Certainly not.

But it would have... any law that would pass would have to have some rational basis to the State interest.

Justice Breyer: You've not given a rational basis except to repeat the word morality.

Justice Scalia: Is the rational basis is that the State thinks it immoral just as the State thinks adultery immoral or bigamy immoral.

Justice Breyer: Or teaching German.

Justice Scalia: Well, that--

Unknown Speaker: [Laughter]

Chief Justice Rehnquist: Maybe we should go through counsel, yes.

Justice Souter: Isn't the... Mr. Rosenthal, isn't the thrust of Justice Breyer's question that when... when the State criminalizes behavior as immoral, customarily what it points to is not simply an isolated moral judgment or the moral judgment alone, but it points to a moral judgment which is backed up by some demonstration of harm to other people.

We... we've heard questions for example about harm to a... a marital institution.

It makes sense to say whether you think the law is enforceable or not.

It makes sense to say that adultery threatens the... the durability of a particular instance of marriage.

On the instance of marriage.

What kind of harm to others can you point to in this case to take it out of the category of simple moral disapproval, per se?

Mr. Rosenthal: Well, part of the... part of the rationale for the law is to discourage similar conduct, that is, to discourage people who may be in jail together or want to experiment from doing the same kind of thing and I think... and I think that the State can do that.

People can harm themselves and still be... and still have it be against the law.

But they can take drugs and do that.

Justice Souter: Well, do you point to a kind of harm here to an individual or to the individual's partner, which is comparable to the harm that results from the... the harm to the deterioration of the body and the mind from drug-taking?

I mean, I don't see the parallel between the two situations.

Mr. Rosenthal: Well, not... not only do we say that morality is a basis for this, but of course the antecedents have raised that there may also be health considerations.

I don't know whether there are or not.

Justice Souter: That is not the State's claim in any case?

Mr. Rosenthal: That's not the State's claim, but I can't say that it's not true.

Obviously this... this has--

Justice Souter: Did you read... I don't know... I can't remember now who filed it, but there was one medical brief filed on that subject and the argument there was that, in fact, these laws are... are directly antithetical to health claim.

Do you... do you have any comment to make on that brief?

Mr. Rosenthal: --Yes, sir.

There was a law filed on behalf of the respondents that took exactly the opposite position.

Justice Souter: So the issue was open, so far as... as we're concerned that that would be your position, I take it?

Mr. Rosenthal: Yes, sir, for each expert there's an equal and opposite expert.

Justice Ginsburg: But you're not saying the State of Texas is doing this for... to protect the actors who are involved in this?

One can say the State is taking action to see that people don't harm others or themselves.

You're not suggesting that that's the reason for... for this particular law?

Mr. Rosenthal: Well, I think Texas has the right to prohibit certain conduct.

Justice Souter: But if that's the reason for it, why doesn't Texas prohibit the conduct in a heterosexual relationship?

I mean, it doesn't seem to be any harm because if there were a harm, beyond moral disapproval, the law would not be restricted to homosexuals.

Mr. Rosenthal: Well, because heterosexual conduct is... the same kinds of conduct... and by the way it's not distinguished, it's still called deviate sexual intercourse with heterosexuals.

Justice Souter: But it's not prohibited?

Mr. Rosenthal: But it's not prohibited.

Justice Souter: Yeah.

Mr. Rosenthal: But it also can lead to marriage and to procreation.

And that's... and that's a legitimate State interest.

Justice Ginsburg: But... but procreation... many people with the blessings of Texas can have sexual relations who are unable to procreate, so I don't see how... whatever the line might have meant in times gone, it certainly isn't true that sexual relations are for the purpose of procreation and anything that is not for that purpose is beyond the pale.

You can't make that distinction.

Mr. Rosenthal: No, but I think as a matter of public policy, the State can make... have... can have preferences... and again it doesn't say that simply because heterosexual people can... can have deviate sexual intercourse, the State approves it.

There are just simply other sanctions that the... that the State may imply.

I did want to briefly distinguish this case from your decision in Romer v. Evans.

And obviously the distinction there was... was that the Colorado amendment sought to classify people based on their orientation and not their conduct.

And by so doing, they excluded a certain class of people from the political debate.

Now, on the contrary, Texas welcomes all into the political debate and... in the last Texas legislature, fortunately our legislature meets only every other year, but in the last Texas legislature, there was a hate crime statute passed which made it a more heinous crime to make someone a victim of crime based upon their sexual orientation and it included all sexual orientations.

It included homosexuals, bisexuals and heterosexuals, all, so I don't think we can say across the board that there's some sort of Texas policy that we're trying to overall discriminate against... against homosexuals as a group.

Justice Ginsburg: Somebody wants to participate in the political process, run for political office who is homosexual and the charge is made on the other side don't... don't vote for this person, this person is a law breaker, there is a closer connection to Romer in that regard, isn't there?

Mr. Rosenthal: Well, that would be true, if it weren't that the historical fact that that's not in fact true.

That there have been people who have campaigned in Texas and have admitted their homosexuality and have been elected to office.

Justice Ginsburg: But the charge... they could be charged as law-breakers.

Mr. Rosenthal: No, ma'am, they can't be charged as law-breakers for having that orientation.

They can only be charged as law-breakers if they commit that particular act.

And then, again, the State does not allow any disabilities to come from class C misdemeanor acts.

I'm sure it's obvious to this Court that the issues of homosexual rights are highly emotional for the petitioner in these quarters but equally anxious in this Court's... for this Court's decision are those who are, number one, concerned with the rights of States to determine their own destiny, and, two, and possibly more important, those persons who are concerned that the invalidation of this little Texas statute would make... would make marriage law subject to constitutional challenge.

Then again, how far behind that can there be other acts of sexual gratification brought for constitutional challenge also.

There's already movements to lower the age limit of consent for children engaged in sexual practices.

And there are secondary effects, particularly in Texas law, where we are a common law state and the common law is based upon community property shared by both spouses.

The State of Texas is asking this Court to be mindful of the far-reaching aspects of your decision in this case, so as not to disenfranchise 23 million Texans who ought to have the right to participate in questions having to do with moral issues.

We ask you to affirm the Texas Court of Appeals.

Rebuttal of Paul M. Smith

Chief Justice Rehnquist: Thank you, Mr. Rosenthal.

Mr. Smith, you have 4 minutes remaining.

Mr. Smith: Thank you, Mr. Chief Justice.

I just have a couple of points to make.

I thought I might address this question of what it was that we proved in the record below and whether or not we have, as a result, adequately teed up the issues before the Court without having put into evidence directly that this was a noncoercive act or a noncommercial act or a nonpublic act or things of that kind.

Our position is that this is a criminal statute that has only two elements, it has a list of particular kinds of sexual intimacy that you're not allowed to engage in and it they have to prove as well that the two people involved were of the same sex.

There was a complaint that was filed that listed those two elements.

My clients pleaded no contest to those two elements but said that there is an insufficient basis for imposing criminal liability on them, because, first of all, they invade fundamental rights and second of all, because the law is discriminatory, while it's supposedly got a moral basis, it's a discriminatory morality, a morality imposed only on one category of couples in a State which does not penalize in any way adultery, fornication or sodomy for people of... of couples that are different sex.

Those are the arguments that were made and... so our position is that that the statute is unconstitutional both facially and as applied here, because the State purports to impose liability based on those two elements alone and that they are constitutionally insufficient bases both for fundamental rights reasons and because it's a discriminatory state.

The other point I thought I might just address for the moment is the public health rationale which didn't come up before.

Essentially, what the facts are... and I think this comes out to a large extent, it's undisputed in the amicus briefing... the issue is not briefed in here because the Texas brief doesn't even attempt to make this argument, but it is... the facts are that if this was the line between safe and unsafe forms of sexual intimacy it's as if the law cuts right across it.

Regulating some of the most safe forms of sexual activity possible, including, for example, lots of safe sex... same-sex activity involving women and leaving completely unregulated all sorts of forms of unsafe sexual activity involving different sex couples.

So if there was ever a case of a law where the fit is egregiously improper and insufficient to justify the law under the rational basis test, this would be such a case.

Unless the Court has further questions, thank you very much.

Chief Justice Rehnquist: Thank you Mr. Smith.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Scheidler v. National Organization for Women (NOW) - Oral Argument

Fri, 09 Jan 2009 14:50:42 +0000

Case:

Scheidler v. National Organization for Women (NOW)

Media File:

01-1118_20021204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Roy T. Englert

Justice Stevens: We'll hear argument in case Number 01-1118, Scheidler against the National Organization of... of Women.

You may proceed.

Mr. Englert, Jr.: Thank you, Justice Stevens, and may it please the Court:

This case comes to the Court in a remarkable posture.

If you agree with the Hobbs Act arguments in the blue briefs, you should reverse the jury verdicts and direct entry of judgment for the defendants.

But even if you believe the arguments in the red and gray briefs, you should still reverse, but for a new trial.

And whatever you do on the Hobbs Act, you should reverse the RICO injunction because RICO simply does not authorize private injunctive relief.

Now, why do I say so starkly that even respondents and the Government's theories require reversal of the jury verdict?

Because the attempts in those briefs, to salvage the theory of plaintiffs' case, concede that someone must obtain the victim's property for the offense of extortion to be shown.

And the whole reason the Court granted cert on the Hobbs Act issue was to review the Seventh Circuit's holding directly contrary to those concessions that, quote, a loss to, or interference with the rights of the victim is all that is required, closed quote.

Likewise, the jury was instructed that all it had to find was that the defendants caused someone, quote, to give up a property right, closed quote.

You will find in the red and gray briefs very elaborate efforts to suggest meanings of obtain and property under which the record in this case supposedly could support a finding that petitioners obtained some abstract form of property from the clinics or women.

But no defense of the Seventh Circuit's holding and the jury instructions that substituted the phrases, interference with and give up for obtaining.

So there ought to be no question that some form of reversal is required.

Now, the reason why there should be reversal for the entry of judgment for the defendants, and not just for a new trial, is that respondents and the Government's brief-formulated conceptions of obtaining and property are wrong.

The essence of the theories is that petitioners obtained control over the use and disposition of clinic assets.

To refer to that as obtaining property of another... the language of the Hobbs Act... is an awfully broad use of language.

It's a far cry from the New York law on which the Hobbs Act was based.

Justice Kennedy: I suppose in some instances one competitor can buy another competitor's firm and just close it up in a regular business transaction, and that... that would be obtaining it in that sense.

Now, of course, I recognize that title transfers, et cetera, et cetera.

Here the result is about the same.

Mr. Englert, Jr.: No, Your Honor.

Respectfully, it's not.

My clients don't have the clinic's property today as they would if they had, in fact, obtained it.

They may have temporarily interfered with some use of it.

Justice Kennedy: Let's assume that the... that the boycott or... or the protests are sufficient to close it down.

They have obtained it in a certain sense in that they have obtained... they have secured for themselves the use that they want of it, i.e., no use.

Mr. Englert, Jr.: That is a sense of the word obtain, but it's not the sense relevant for interpreting the Hobbs Act for several reasons.

One is the Hobbs Act has historical predecessors that this Court has said should be looked to in interpreting its terms.

Justice Scalia: You... you concede it's a sense of the term obtained?

I mean, would you really speak of obtaining somebody's property when you... when you interfere with that person's use of it?

Mr. Englert, Jr.: Well, I certainly don't... I'm sorry, Justice Scalia.

I certainly don't concede it's a relevant sense of obtain.

Because of... because of the Hobbs Act historical antecedents, because of the rule of lenity, because of the very odd use of language, for all those reasons, that's not how the Court should interpret obtain.

But more important than any of those things is the implications of such a theory.

When Carry Nation went into saloons with her axe and destroyed property, she certainly interfered with the property owner's unfettered use and control over disposition of his assets, and that's exactly what she intended to do.

Was that extortion?

The civil rights boycott of white merchants that the Court considered in Claiborne Hardware certainly affected the ability of the boycotted merchants to use their property and involved isolated acts of violence as well.

Was that extortion?

These aren't hypothetical concerns.

Justice Stevens: Of course, that... extortion wasn't charged in that case, was it?

Mr. Englert, Jr.: No, Your Honor, but were the Court to uphold the theory in the red and gray briefs, which wouldn't support the judgment, but if the Court were to uphold that theory, it certainly could be charged the next time the facts of Claiborne Hardware come along.

Justice Scalia: One must wonder why it wasn't charged.

Mr. Englert, Jr.: Yes.

Justice Stevens: Because it was a State case it wasn't... the reason... reason it wasn't charged.

It grew up through the Mississippi court system, if I remember correctly, didn't it?

Mr. Englert, Jr.: Well, my... that's correct, of course, Justice Stevens.

But my fundamental point is not that one case was or wasn't charged as... as extortion.

It's if you uphold the theory of the red and gray briefs, it can be charged as extortion in the future.

And that's actually happened to People for the Ethical Treatment of Animals.

It's happened to other animal rights groups.

Because of these implications, the Southern Christian Leadership Conference joined the amicus brief of the Seamless Garment Network at the cert stage.

Disability rights groups that conduct protests have joined the Seamless Garment Network brief at the merits stage.

Activists of all stripes and their admirers... Daniel and Philip Berrigan, Nat Hentoff, Martin Sheen--

Justice O'Connor: But are we talking about actions that constitute the commission of some kind of criminal offense in the process?

Mr. Englert, Jr.: --Oh, yes.

Justice O'Connor: Yes.

Mr. Englert, Jr.: Oh, yes.

Trespass.

Justice O'Connor: Yes, and other things, destruction of property and so forth, I suppose.

Mr. Englert, Jr.: Oh, yes, Justice O'Connor.

Justice O'Connor: Yes.

Mr. Englert, Jr.: There's never been any doubt in this case--

Justice O'Connor: I mean, we're not talking about conduct that is lawful here.

Mr. Englert, Jr.: --We are not talking about extortion, but we are talking about some things that could be punished much less severely.

It has never been disputed in this case, from the opening statement through the closing statement of the trial or in the earlier phases of the case, that there were trespasses.

There could be in particular circumstances--

Justice O'Connor: --more than that.

In some cases, assaults and so forth.

Mr. Englert, Jr.: --Well, fair enough except the... the jury verdict really is quite at rejection of petitioners' proof in many respects rather than supporting it.

But, yes, Justice O'Connor.

I really don't want to fight with you on that particular point.

But... but let's--

Justice O'Connor: --I think to paint the picture that we're talking about, just pure speech is... is not the case.

Mr. Englert, Jr.: --No, but that's why I used the examples of Carry Nation and Claiborne Hardware which weren't pure speech either.

There was certainly violence in those cases, but not extortion.

Justice O'Connor: Would you say coercion?

One of the questions was, well, coercion... if that's defined as using compulsion to force a person to do or not do something that she otherwise would do or not do, does this conduct fit that crime?

Mr. Englert, Jr.: Yes.

Justice O'Connor: That crime--

Mr. Englert, Jr.: And that's a very important point supporting our position because Congress at one point had coercion as a predicate act in the Anti-Racketeering Act of 1934 and, at the request of organized labor, took it out.

In the Hobbs Act, in the passage of the Hobbs Act in 1946, again, organized labor lobbied to make sure that coercion was not part of the Hobbs Act.

Coercion is a different crime from extortion, and interfering with someone's rights is the crime of coercion under the Model Penal Code, under New York law, under various other bodies of law, but it's not the crime of extortion.

Justice Kennedy: --Just... just on the obtain point, which I... I agree with you is of great relevance here, if... if a group trespasses on property and... and remains there for a period of days, can it be said that they're obtaining the use of the property, or is... is that too much of a stretch?

Mr. Englert, Jr.: I think it's a stretch, Justice Kennedy, but even if it weren't a stretch, it still wouldn't be a Hobbs Act violation for a different reason.

There must be consent to the obtaining of property or... of another, and simply going in and engaging in adverse possession doesn't necessarily entail consent.

Justice Kennedy: Well, suppose you withdraw in order to avoid confrontation.

I suppose if A robs B, and B turns over the wallet, in a sense there's consent, not... not the kind of consent that the law would ever recognize.

It's a consent in a... just from the standpoint that there's a voluntary act in handing over the... the wallet.

Mr. Englert, Jr.: Well, that actually--

Justice Kennedy: You make your... you make your muscles move and that's about it.

Mr. Englert, Jr.: --Yes.

Words can be stretched to make lots of things into lots of things that the law doesn't want them to be.

And in fact, the common law distinction between robbery and extortion, which are both Hobbs Act predicates, is one is with consent and the other is without.

So robbery is a classic example of something that you could stretch the word of consent to cover, but it isn't extortion.

Justice Breyer: I guess it's obtaining property if a group of people through criminal means tell an owner of a business precisely and in detail how he has to run his business.

Mr. Englert, Jr.: Oh, I don't think so, Justice Breyer.

Justice Breyer: No?

In other words, if... if, say, you have a group of terrible criminals, and they say here is what... we're going to kill you unless you do the following, and then they say, today you serve X and tomorrow you serve Y, and you send the money over to Z, and you do all these different things; in other words, they run the business.

Mr. Englert, Jr.: If it--

Justice Breyer: Now, why haven't they obtained that business?

Mr. Englert, Jr.: --In the hypothetical example you just gave me, they most certainly have obtained property.

You said send the money over to Z.

Justice Breyer: Because I said... say... I regretted putting that in the hypothetical the instant I did.

Unknown Speaker: [Laughter]

Justice Breyer: I'm simply looking for an example of a group of criminals who will tell a property owner, a businessman, exactly and precisely how to run his business in a way that he doesn't want to run it.

Now, why isn't that obtaining the property called the business?

I mean, that's what the SG I think is suggesting basically.

Mr. Englert, Jr.: --And the SG is wrong because that's not what obtaining property meant under the New York law in 1946.

It... it's a stretch of words.

It's a modern concept of property.

Justice Breyer: It's like a theft of services.

I mean, you go in and you... there was a... years ago a person who figured out how to whistle various tones into the telephone so that it would connect people without charge.

All right.

Now, hasn't that person stolen the use of the telephone?

Mr. Englert, Jr.: Yes.

Justice Breyer: Yes.

And... and a person who tells the telephone company owner, I want you to go and provide the services to A, B, and C, hasn't he stolen those services?

Mr. Englert, Jr.: Well, that's getting to be more of a stretch, but probably yes, under United States v.--

Justice Breyer: Then... then the difference between that and a person who tells the business owner to provide his services to A, B, C, D, and E, whom he doesn't want to, that doesn't seem a difference.

Mr. Englert, Jr.: --No.

There is a major difference, with respect, Justice Breyer.

Saying do provide services to A, B, C, D, and E is quite different from saying don't provide services to A, B, C--

Justice Breyer: That's what I wondered, and what is the difference there?

Mr. Englert, Jr.: --The difference is that A, B, C, D, and E have obtained the services in one case and they have... and no one has obtained any property in the other case, exactly the words of the Hobbs Act.

Justice Souter: Except that services is not property, and the one thing that is common in both the negative and the positive examples is the obtaining of control.

It's... it's... it seems to me it's... it's the control that's important when he says serve A, B, and C. It isn't property that he has obtained.

It's... it's an action.

It's a service.

Mr. Englert, Jr.: Justice Souter--

Justice Souter: And that's true in each case.

Mr. Englert, Jr.: --if I've understood you correctly, that's even more support for our position because the words of the Hobbs Act are obtaining of property from another.

So if all of Justice Breyer's examples--

Justice Souter: No, no--

Mr. Englert, Jr.: --property--

Justice Souter: --I... I agree with you on that point, but I... I guess I'm saying that if you concede in the one case, I don't see why you... you really don't have to concede in... in the other case because the one thing that is common to each is control, and there is no property in a tangible sense that is obtained in... in the positive service examples.

Mr. Englert, Jr.: --No. With respect, what is common is not control.

It's acquisition.

It's obtaining.

That's what obtaining means.

The Solicitor General's own brief on page 21 in footnote 11 says that's what obtaining means.

And--

Justice Souter: And what does one obtain?

One obtains, in each case, control--

Mr. Englert, Jr.: --But control--

Justice Souter: --i.e., direction.

Mr. Englert, Jr.: --I apologize, Justice Souter, for interrupting, but control is not property.

Property is property.

Justice Souter: My point is if you are conceding that Justice Breyer's positive examples would fall within the statute, I don't see why you don't have to concede that the negative example, i.e., don't serve, doesn't also fall--

Mr. Englert, Jr.: The--

Justice Souter: --on... on your own theory.

Mr. Englert, Jr.: --I don't think so, respectfully, Justice Souter.

The distinction I draw is that in the words of the statute, one involves obtaining property, and the other doesn't, on the assumption that the services are property.

If they aren't property, I win the case for a different reason.

Justice Stevens: What do you do with the New York case involving a work stoppage?

Do you agree with that case, or do you think it's wrong?

The one the Solicitor General cites in his brief, the... the old 1890 case involving a stop... a strike, I guess, is what you'd say.

Do you think that case would... would be decided the same way under your view?

Mr. Englert, Jr.: I... I think so, Justice Stevens, but the case is not immediately coming to mind.

I'm sorry.

I... I do think the New York courts construed rather strictly the obtaining of property, and the Solicitor General's more expansive cases are from long after 1946.

Justice Stevens: It's People against Barondess, decided in 1892.

It was under the... under the New York statute, which I think everyone agrees was the model for the Federal statute.

Mr. Englert, Jr.: Yes, Your Honor.

Justice Stevens: It seemed to me there was no obtaining in the very literal sense that you used the term, but there was merely acquisition of control of the operation in that.

And I'm not quite sure how you come out on... on those facts.

Mr. Englert, Jr.: Well, Your Honor, I'm... I'm, as I stand here, blanking on those facts.

I... I believe the New York courts did construe obtaining of property rather strictly in that case and in every other pre-1946 case, but I can't... I apologize.

I can't give you an intelligent discussion of that right at this moment.

I'd like to turn to the RICO injunction issue, if I may.

It's very straightforward.

I plan to address it only briefly.

First, this Court has held in several cases that section 7 of the Sherman Act and section 4 of the Clayton Act, both worded almost identically to section 1964(c) of RICO, did not authorize private injunctive relief.

The dissent in Paine Lumber contended that courts had inherent power to grant injunctions--

Justice O'Connor: The language of the acts, though, is a little different than this, isn't it?

Mr. Englert, Jr.: --Well, very, very slightly different, Justice O'Connor.

Justice O'Connor: The analogy may not be perfect because the language differs.

Mr. Englert, Jr.: Very slightly, but the... where there's a world of difference and not a slight difference is between section 16 of the Clayton Act and section 1964 of RICO.

And in section 16 of the Clayton Act, Congress authorized private injunctive relief.

No language remotely resembling section 16 appears in section 1964 of RICO, but all of the language from the statutes this Court held didn't authorize injunctive relief with very tiny variations appears in RICO.

Besides the obvious statutory language borrowed from the Clayton and Sherman Acts, as this Court has recognized throughout its cases, the statutory evolution of RICO presented Congress with repeated opportunities expressly to provide private parties with injunctive relief under RICO.

Every such proposal failed before and after the final enactment of RICO.

The court below dismissed the reliance on legislative history on the theory that this Court would not ascribe any significance to legislative inaction.

But ironically the very day the Seventh Circuit decided this case, this Court was hearing argument in Chickasaw Nation v. United States, and the opinion of the Court in that case reiterated the longstanding principle... with which some members of the Court disagreed, but the longstanding principle in majority opinions... that courts ordinarily will not assume that Congress intended to enact statutory language that it has earlier discarded in favor of other language.

Justice Stevens: Would you clarify one thing on the... on the rejected amendment?

Was it voted down or withdrawn?

I can't remember.

Mr. Englert, Jr.: It was actually passed unanimously by the Senate, but then the House didn't take a vote on it.

Justice Souter: But we don't know why they--

Mr. Englert, Jr.: I'm sorry.

I... Justice Stevens, I... I've misspoken slightly.

Excuse me.

The... the post-RICO effort--

Justice Stevens: --Well, no.

I'm talking about the one before enactment.

The post... the later statute is a little less persuasive.

Mr. Englert, Jr.: --The pre-RICO effort was withdrawn.

The pre-RICO effort was withdrawn by Representative Steiger on the ground that it would complicate matters too much to take it up at that stage of the legislation, but it was very important.

He'd come... come back again with it next year.

But he recognized that the statute didn't have private injunctive relief in it in his floor statements.

Justice Souter: At the... on the second round, when... when the Senate passed and the House didn't, there's no explanation in the House record, is there?

Mr. Englert, Jr.: Nothing that sheds tremendous light on this except for Representative Steiger's--

Justice Souter: Yes.

Mr. Englert, Jr.: --own statements.

Justice Souter: It would... it would be... I... the trouble I'm having is I don't have any trouble seeing the argument your way.

The... the reason I'm... at this point, I'm not convinced is that you do have in subsection (c) the language referring... it says may.

What is it?

May sue... I can't... yes, may sue therefor.

And we've got the general presumption that all appropriate remedies go with a cause of action.

And I'm... I'm wondering if in a case in which it's uncertain what to infer, either from the legislative record in... on intent, or from the textual record here, whether the presumption not to carry the day in a case of doubt--

Mr. Englert, Jr.: It shouldn't because, as is pointed out at pages 7 and 8 of the Operation Rescue reply brief and correctly so, this Court has two lines of cases: one when Congress doesn't specify the remedies.

That's cases like Franklin v. Gwinnett County which was an implied right of action case, and like Califano v. Yamasaki.

And a different line of cases saying, when Congress does specify remedies, they're intended to be exclusive.

A line of cases that... that--

Justice Souter: --Well, it... may I tell you the reason I wasn't convinced on that is that if... if Congress were... were specifying in the text here choices among ordinary remedies, I think that would be a very strong argument.

The reason it seems less strong here is that the choices that... or the... the remedies that Congress has specified are extraordinary remedies, e.g., right in this section.

What is specified is treble damages, not damages.

If they had simply said can get damages, I think it would be a slam-dunk, but... but what they did was... was to specify something out of the ordinary, and I'm not sure that that carries the implication that ordinary remedies, consistent with what it specifies, are... are meant to be excluded.

Mr. Englert, Jr.: --Well, Justice Souter, this Court said over and over again that it did carry that implication when the exact same language was used in the Sherman and Clayton Acts.

The Paine Lumber case, the D.R. Wilder Manufacturing case, a whole host of antitrust cases.

Justice Souter: And I just don't remember this.

Does... does the... does Clayton use the phrase, sue therefor?

Mr. Englert, Jr.: Oh, yes.

Justice Souter: I have to go back and look.

Is that the term of art that's in there?

Mr. Englert, Jr.: Oh, yes.

Oh, yes.

The... the language of Sherman and Clayton is in the appendix to the Scheidler blue brief--

Justice Souter: Yes.

I just... I just didn't go back and look.

That is the phrase?

Mr. Englert, Jr.: --It is.

It is.

The terms that differ are quite trivial, and some sections are separated into different subsections.

That's about all the difference there is.

I'd like to reserve the balance of my time for rebuttal.

Justice Stevens: Mr. Solicitor General.

Argument of Theodore B. Olson

Mr. Olson: Justice Stevens, and may it please the Court:

The right to control a business, whether or not for profit, is a well-recognized and longstanding interest in property.

When that control is surrendered in response to unlawful force, whether motivated by economics, politics, or ideals, the extortionist has attained his objective, and the Hobbs Act has been violated.

Justice Kennedy: Well, under that definition, I suppose that anytime protesters trespass on property, they've obtained the use of that property and there's a Hobbs Act violation--

Mr. Olson: If--

Justice Kennedy: --Hobbs Act predicate violation?

Mr. Olson: --If there's an unlawful use of force or threats or violence, Justice Kennedy, whether it be in the form of trespassing... and the aim... which this Court recognized 8 years ago in this... in this very predecessor case was to shut down the clinics.

If that aim is achieved, the control of the property has been transferred from the owner of those clinics to the extortionist.

Justice Kennedy: Well, if... if that's... if that's a strained reading of obtained, shouldn't we be... take counsel of... that there's a... serious First Amendment consequences... consequence if we adopt that extensive definition?

Mr. Olson: As Justice Souter said in... in the dissent, which you joined, in the earlier case, the First Amendment is not an issue in this case, and it can be dealt with in particular circumstances in particular cases where it arises.

The issue here is if the use of force--

Justice Kennedy: Well, the... there's always a First Amendment implication in a protest case.

There's... at this point there is a First Amendment issue in the case because of the broad definition you're proposing, it seems to me.

Mr. Olson: --Well, it was the question that was presented that was not accepted by this Court.

Question 3, I think it was, or 4 in the... the one Scheidler petition was not accepted by this Court.

Justice Scalia: Well, but the point... the point is... the point is not whether there's a First Amendment violation here.

The point is whether the interpretation of the word obtain that the Government is... is suggesting we adopt does not threaten to... to bring us constantly into difficult situations where we're going to have to try to sort out whether that definition doesn't sail too close to the wind with respect to First Amendment rights.

Mr. Olson: I submit, Justice Scalia, that that is not going to be the... the problem that this Court or any courts are going to have to face.

First of all, the definition of property as controlling a business has been accepted for a long time.

Now, the only question that is--

Justice Scalia: You... you... do you agree that your interpretation would have been applicable to the civil rights sit-ins?

Mr. Olson: --Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating.

Justice Scalia: Do you--

Mr. Olson: In many--

Justice Scalia: --Do you agree that it would be applicable to many labor picketing situations--

Mr. Olson: --Well, they--

Justice Scalia: --where they obstruct entrance?

Mr. Olson: --This... this Court specifically carved out an exemption in... in the Enmons case with respect to legitimate labor objectives--

Justice Scalia: No, but--

Mr. Olson: --and made it--

Justice Scalia: --The exception wasn't with regard to labor objection.

What... what is there in the statute that... that enables you to make an exception for labor picketing?

Mr. Olson: --What... what this Court--

Justice Scalia: What language of the statute enables you to separate labor?

Mr. Olson: --Well, I... I can't pull a specific piece of the language out of the statute, but this Court said nearly 20 times in the Enmons case that the Hobbs Act was not intended to cover achievement of legitimate collective bargaining demands, and because the Court did not want to--

Justice Scalia: It said any legitimate demands--

Mr. Olson: --No, it--

Justice Scalia: --elsewhere.

It didn't always limit it to just legitimate collective bargaining demands, did it?

Mr. Olson: --I... I take that the Court, because it said over 15, nearly 20 times legitimate collective bargaining demands, legitimate union objectives--

Justice Scalia: Because that's what was involved in the case.

But why would you separate legitimate collective bargaining demands from other legitimate demands?

What is there possibly in the word obtain that could cause you to separate legitimate collective bargaining demands from legitimate demands that you... that you refrain from doing something else?

Mr. Olson: --I... I can only submit, Justice Scalia, that it seemed to me a clear implication of the words used by the Court and the fact that the Court emphasized that it was... that we were dealing with... the Court was dealing with the extraordinary... the potential extraordinary change in Federal labor law, that that phrase was emphasized over and over again.

Neither this Court--

Justice Scalia: So... so you say we simply made a labor law exception to the extortion statute.

Mr. Olson: --In the... in the context of the history--

Justice Scalia: Just... just out of nowhere, a labor law exception.

Mr. Olson: --No, not out of nowhere, Justice Scalia.

There was a long history of--

Justice Scalia: You give me no language in the statute that would justify it.

Mr. Olson: --What... what the statute... what the language of the statute does... and here's... here's where... what I would emphasize.

The language of the statute specifically makes it unlawful and makes no exception for... for whether the... whether the... the petitioner... the... the protester, or the... or the alleged extortionist is motivated by ideals or politics or wanting to shut down a business or a... or a boycott of Israel or... this is a classic use of force and extortion in the organized crime setting.

The use of force or threats to take over a labor union or a business--

Justice Breyer: But it says there, to obtain control.

To obtain control.

Mr. Olson: --Yes.

Justice Breyer: Fine.

What I don't understand is whether there isn't a line somewhere between obtaining control in the sense of taking over a business for a period of time, shutting down a business, and just telling the owner of the business to do one single thing once that the blackmailer... but not the owner... wants to do.

Mr. Olson: Let me--

Justice Breyer: There's a spectrum that falls within that word control or the word taking over that if you push it to an extreme, the Hobbs Act becomes a coercion statute in respect to a business owner.

Mr. Olson: --It... the question, it seems to me, was answered in part by this Court in the earlier NOW case by saying that the extortionist doesn't have to gain a financial benefit or take possession.

Now, the... the robbery and larceny statutes at common law required the taking and acquiring of possession.

Justice Breyer: I take where you're going is that it is a coercion statute in respect to a businessperson insofar as you ask the owner of the business to do something that he doesn't want to do.

Mr. Olson: That's... that's part of it, yes.

And the answer to the question about obtaining--

Justice Breyer: If I think that's too extreme, is there any stopping place?

Mr. Olson: --Well, there... there is a stopping point, is whether at the end of the day, through the threats or the... the actions of the extortionist, that property interest that was held by the victim of the extortion has been transferred to the hands of the extortionist in the sense that the aim has been accomplished.

The aim was to shut down the clinics.

That was the attempt, and to the extent that that was or was attempted to be accomplished, that control--

Justice Ginsburg: General Olson--

Justice O'Connor: --Mr.... yes, Mr. Olson.

If... if we agreed with your view... and I'm not sure we will... about property including the right to control business assets, it does not, I assume, cover some personal right of somebody to obtain services in the clinic.

And I guess the jury verdict covered both.

Could the jury verdict be upheld here even if the Court agreed with your view?

Mr. Olson: --We... we have not addressed that, Justice O'Connor.

I do--

Justice O'Connor: Well, I'm asking you to.

Mr. Olson: --I do... I do agree.

I think that it would have to be sent back to the Seventh Circuit for a remand to examine that question.

The jury instruction did have the component to which you refer which we would characterize as a liberty interest of a right of an individual.

And that was--

Justice Ginsburg: And we have no idea what the jury went on.

There were three pieces, and one involved the people who worked in the clinic.

One involved the women who were served by the clinic, and the third involved the clinic operation.

And that was exactly the question that I wanted to ask you.

Is your bottom line a new trial?

Because the charge doesn't match the theory you're putting forward.

Mr. Olson: --I think that... I think that at the end of the day, although we haven't briefed it and the Government is interested in the definition of extortion, at the end of the day that might have to be the result because the general... generalized verdict does not make a distinction between that which we contend is property right which was obtained by the extortionist or... or was attempted to be obtained--

Chief Justice Rehnquist: Well, you wouldn't want us to send it back without resolving the extortion issue, would you?

Mr. Olson: --That's... no, I--

Chief Justice Rehnquist: You want us to send it back so it is... it is... the jury is given a charge only on the extortion theory that you're... that you're delivering.

Then it comes back up and then we will resolve the issue.

Mr. Olson: --Well, I... the question presented, in connection with the Hobbs Act, I think is answered this way.

Where unlawful... which this Court should articulate, we hope, in its opinion.

Where unlawful force is used to arrest sufficient control of a business to stop the performance of its services, the Hobbs Act has been violated because control of the business, a property right has been acquired.

I... I may have 1 minute left to just mention one thing with respect to the... the RICO provision.

Congress created a private right to damages for RICO violations by intentionally copying language from the antitrust laws that this Court had repeatedly held did not confer a right to seek injunctive relief.

This Court has said that Congress was aware of the antitrust history, was copying it, intended to copy it, and was presumed to know the consequences of what Congress was doing.

Justice Stevens: Of course, at the time the statute was enacted, a private litigant could get relief, injunctive relief, under the antitrust laws, not under the... not under the section 7 of the Sherman Act, or section 4 of the Clayton Act, but under whatever the other number is.

Mr. Olson: Section 16.

Justice Stevens: But the question is really whether the first section of the RICO gives us authority.

Mr. Olson: Well, may I answer that, Justice Stevens?

Justice Stevens: Sure.

Mr. Olson: It seems to me that in the context of the language that the... that Congress knew would not create a right, and knowing... Congress knowing that section 16 did specifically create such a right, and knowing that this Court had said that when a right is created and remedies specifically provided, the Court... the Court will not expand.

The Court will accept what Congress has done.

And Congress did not adopt and in fact rejected the opportunities or... or failed to accept the opportunities to adopt precisely the remedy that would have had that result.

Justice Stevens: Thank you, Mr. Olson.

Ms. Clayton.

Argument of Fay Clayton

Mr. Clayton: Justice Stevens, and... and may it please the Court:

I'd like to begin with the RICO issue, if I may, and then turn to the Hobbs Act questions.

The stark contrasts between the antitrust law and RICO prove the... prove why private injunctions are available.

When it comes to damages, we agree that the language is virtually the same, treble damages and so forth.

But when you look at the injunction provisions, they are radically different.

In the antitrust law, Sherman IV, all the injunction provisions were put in a single paragraph giving the Government the exclusive duty to enforce.

That is not... that was not copied in RICO.

In RICO, Congress took out permanent injunctions, put them in section 1964(a), a separate, unrestricted section.

Not only did it give the duty to the Government, it didn't even mention the Government.

Justice Scalia: But in the next section, it did mention the Government and said that the Government shall have the authority to... to use the injunctive provisions mentioned in the first section.

Right?

Mr. Clayton: No, Your Honor.

Justice Scalia: And then in the third section, it gives private individuals a right to damages, but does not mention that they have the right to use the first... first section.

Mr. Clayton: Justice Scalia, of course, you are correct about section (c).

Section (c) does give standing to private parties, and gives them these extraordinary new remedies, treble damages and legal fees, which they could never get without a statutory grant.

But section (b) does not give the Government the right to use permanent injunctions.

It only talks about preliminary relief.

It takes that one section of Sherman IV out, and the other part, the permanent injunctions in Sherman IV, are now, under RICO, put in a wholly different provision, the unrestricted section (a).

The natural reading of section (a), which says all these permanent remedies, including the injunction that our trial court granted here, went against future criminal activity.

Section (a) in an... unrestricted language makes that available to the court to restrain violations of section 1962, the very violations that section (c)--

Justice Ginsburg: Section (a) says what the court may grant.

It doesn't say who has authority to ask the court to do that.

And in the... the provision (b), it empowers the Government and the Government only to ask for preliminary injunctive relief.

It's a strange thing.

Why would Congress withhold the power to seek a preliminary injunction and yet give that party the right to seek a permanent injunction?

Mr. Clayton: --That's a question that we have pondered for a long time, and... and I think the Motorola brief, which explains... a very important brief... why preliminary injunctions should be available to everybody, makes a good argument for that.

But we don't have to address that question here.

My own thinking is that section (b) gives the Government something that it wouldn't have had without the statutory grant because preliminary injunctions require one... one element that permanent ones don't, the irreparable harm to the victim.

And the Government, suing as sovereign, doesn't have property that's harmed.

And if you look at the Wollersheim case, they recognize that was a plausible reason for why section (b) is there.

Justice Scalia: But you're just addressing the second sentence of section (b).

There is a first sentence which says, the Attorney General may institute proceedings under this section.

Mr. Clayton: That's right.

Justice Scalia: Now--

Mr. Clayton: That's right.

Justice Scalia: --that... that gives the Attorney General the power to institute proceedings under (a).

Mr. Clayton: Your Honor, it doesn't... excuse me, Justice Scalia.

Section (b) does not say the Attorney General may institute proceedings under section 1964(a).

It says under this section which is section--

Justice Souter: What else could it mean?

What else could it mean?

Mr. Clayton: --It means section 1964 as a whole, Your Honor, and in section (c) private parties are given the right to sue, which is another way of saying the very same thing.

In fact--

Justice Breyer: As I... sorry.

--I was going to say in the American Stores case, this Court construed the very same language in the Clayton Act, sections 15 and 16.

Mr. Clayton: Institute proceedings, sue for in the other.

And the Court said both of them mean both the Government and private parties may go and get injunctive relief including divestiture.

It's just two ways of saying the same thing.

The Government is thought to institute proceedings.

It's bringing them as a sovereign.

Private parties are suing for.

It's just the traditional language.

Certainly those phrases don't bear the weight of the argument that institute proceedings means this party and only this party has access to those unrestricted remedies of section 1964(a).

Justice Breyer: And I looked... I mean, I couldn't make too much out of the fact that you take the language from the Clayton Act which says the Attorney General may institute proceedings in equity, and you move it to section (b) and just change it to say, he may institute proceedings under this section.

That's the only difference with the Clayton Act that I could find.

So I looked up the history.

In the history, it looks as if there were five different bills floating around, and things didn't... weren't all that straightforward.

It got a little mixed up.

And you have in the House several Congressmen getting up and saying they made a mistake in the Senate.

They didn't include this.

They should have.

And then there were four more bills floating around, and the ones who wanted to include it said, send it all to the Judiciary Committee, let them work it out, and they never worked it out.

I mean, that's... that's the thrust of it that I... that I got out of that.

Maybe it was just a mistake.

Well, if it was a mistake, you're the... you have another law.

You can bring it under the... you could get an injunction I guess under the Abortion Act, the Abortion Clinics Act, or... it seemed to me this one... they made a mistake.

Well, they made it.

Mr. Clayton: Well, Justice Breyer, even if someone made a mistake, the bill, as it stands, is what Congress voted on, and what the President signed.

It is that bill that we interpret.

And we all agree... this Court has said on many occasions that--

Justice Scalia: I'm with you on that.

Mr. Clayton: --I know you are, Justice Scalia.

[Laughter]

Perhaps the only thing.

And you've often commented on how there are probably as many reasons for congressional action or inaction as there are Members of Congress.

But the fact is the bill makes a very... it's a very radically different structure from the antitrust law.

Private... I mean, permanent injunctions are unrestricted, and under the traditional jurisprudence, Califano... when we... we assume all traditional remedies are available unless... unless there's the clearest command.

There's not even a hint here.

Maybe it was a mistake.

It was certainly not a clear command to do the opposite.

And as my... petitioners have pointed out, the only time private injunctions were voted on, they passed unanimously.

Why didn't they put it in there?

I think it would have been redundant, and the Court doesn't like surplusage.

If they had said in section (c), and private parties can get permanent injunctions, then the courts would have been trying to figure out, well, what did they mean in section (a).

That has to mean something different.

They didn't say again the Government could get permanent injunctions in section (b).

That would have been redundant too.

But everybody agrees the Government can get permanent injunctions.

In any event, this Court's jurisprudence teaches us--

Justice Scalia: Don't you think it's--

Justice Stevens: --We don't agree on whether they get it pursuant to section (a) or section (b), though.

Mr. Clayton: --The Scheidler brief, the opening brief, says that section (b) gives the Government unrestricted access to the remedies in section (a).

That's the way they've put it.

I don't read... if... if that's the case for the Government, the same applies to private parties.

By parity of reasoning, anyone with standing... and it's strict standing for private parties.

You've got to be injured in your business or property.

Justice Scalia: But... so you say private parties have the power to require... to ask the court to order a person to divest himself of any interest, direct or indirect?

Do you know of any other situation in which a private party can... can cause the... the divestiture of a business?

Mr. Clayton: Justice Scalia, it's not automatic.

The court in its discretion might do it or might not, but it must--

Justice Scalia: I understand that, but to put that power and... and to request it in the hands of a power... of a private party seems to me extraordinary.

Mr. Clayton: --It's been in the hands of private parties under the antitrust law for more than a half century before RICO was passed, and the courts have had no problem exercising their discretion to my knowledge.

In fact, in the American Stores case, this Court pointed out how the very same remedy sought by the Government and sought by private parties, the Government might get it, and the private party might not.

Furthermore, any... any injunctive relief--

Justice Scalia: You can understand it in the context of the antitrust laws where the divestiture is the only way to prevent the... the monopolization, but to use that as a punishment for... for extortion is, it seems to me, quite... quite bizarre.

Mr. Clayton: --And then I think the court wouldn't grant it to the private party, and they certainly wouldn't grant it unless it was designed to remedy the particular injury that the private party suffered to their business and property by virtue of a 1962 violation.

It would be very strange, indeed, Your Honor, to remove from private parties who are deputized to be a... private attorneys general, supplement the Government resources, to take away this powerful core injunctive remedy and instead make them sue for treble--

Justice Scalia: But the divestiture... you say the divestiture should never be... should never be used by the courts.

Mr. Clayton: --No, I don't, Your Honor.

I think that the district courts are--

Justice Scalia: It could... could simply destroy an organization as the punishment for... for extortion as you--

Mr. Clayton: --The court would only do that in an extreme case, I am sure.

Maybe they would never give it to a private party, but it would be up to the... but the private party may seek it.

Section (a) doesn't say they automatically get it.

Justice Ginsburg: --Then it's even odder that they don't... the private party can't seek that preliminary injunction even if they can show irreparable injury.

Justice Kennedy: To give the extraordinary power of ordering divestiture and not giving a party who is irreparably injured the authority to go into court and say, stop now... temporarily--

Mr. Clayton: I... I agree, Your Honor, and even though that's not an issue that the Court has to resolve in this case, I think the Motorola brief makes an excellent case for why... since this is a very special remedy, it's not an exclusive list.

Congress didn't mean to deprive private parties or anyone else of any of the traditional remedies.

The Califano rule is clear.

Unless there's a clear command to deny it, it's available.

I don't think section (b)... remember, it doesn't even have that duty language.

One other point I'd like to make is when the antitrust laws were written, there was no merger of law in equity.

To go in... when someone had a right to get damages, they had to go into the law court which could only give money damages.

It couldn't give injunctions.

That had changed by the time RICO passed.

And Congress knew that.

Congress knew the Federal courts had the ability to design any appropriate remedy to fix the wrong, barring the clearest command.

There's no clearest command.

Justice O'Connor: --Well, you do agree, though, I guess that were efforts to include language authorizing the obtaining of injunctions by private petitioners, and that was not adopted by Congress.

Mr. Clayton: But they were passed unanimously.

They didn't get in I believe because it would have been surplusage.

It would have been redundant, and we don't like that in statutes.

Justice O'Connor: Well, we don't know.

Mr. Clayton: We don't know, Your Honor, and we can... and as the Court has said in Central Bank and Solid Waste, one never... it's a thin reed to rest an interpretation on what Congress might have had--

Justice Breyer: And they have a long, long discussion of the battle, and everybody says, without any opposition, that this isn't there.

You would have thought if it was surplusage, somebody would have gotten up and said, well, it is.

Mr. Clayton: --Well, I think that's what Representative Steiger said.

The... in fact, we quoted him.

It's ambiguous.

Justice Breyer: I don't know.

Mr. Clayton: But it's certainly not the clear command to the contrary.

Justice Kennedy: Well, you have two... two difficult and major arguments here.

Mr. Clayton: I'd like to turn to it.

Thank you, Justice Kennedy.

Justice Kennedy: I... I would like to hear your comments on obtaining property.

Mr. Clayton: I would like to turn to those.

I think we all agree that property includes both tangible things and intangible things.

Of course, in this information age, some of our most important property is intangible.

So the question, of course, is how does one obtain it.

One obtains it by obtaining control over it or dominion over it, as this Court explained in the Carpenter and Green case.

Remember in Carpenter... now, this is a mail fraud case that had the same phrase, obtain property.

Mr. Winans, the Wall Street Journal reporter, the On the Street column, was held to have wrongfully obtained property.

Now, he had already received the information.

Justice O'Connor: Do you think that it includes liberty interest deprivation?

Mr. Clayton: No.

No, Your Honor, I don't.

We do not believe... but sometimes they--

Justice O'Connor: Then what happens to a generalized verdict no matter how you define this--

Mr. Clayton: --Your Honor, the verdict here is based only on property.

If you look at the Hobbs Act instruction, it required that the respondents be made to part with property, not part with liberty interests.

If a newspaper publishes an editorial, it has a liberty interest, a First Amendment right, to do it, but it also has a property right.

Justice Breyer: --Yes, but it defined property.

It says you can find a violation, other things... all the other... all the other requirements being met.

You have to say that the doctors, nurses, or other staff or clinics themselves give up a property right.

The term property right means anything of value--

Mr. Clayton: Right.

Justice Breyer: --including a woman's right to seek services from the clinic, the right of doctors or nurses to perform their jobs, the right of the clinic to provide medical services free from wrongful threats.

Mr. Clayton: Right.

Justice Breyer: Now, your brief I think, more or less, seemed to concede that... that at least two out of those three parts were certainly wrong.

Mr. Clayton: Oh, no.

Justice Breyer: You don't.

I mean, then... then do we have to decide... is this... is--

Mr. Clayton: No, no.

No, Your Honor.

What we believe is that to find property in any one of those aspects of property... there are three aspects of property: the clinic's right to control its equipment and buildings and so forth, the women's right to spend their money, and the contract among... between the two parties.

Extortion of any one of them proximately injures all of them because it's two sides of the same coin.

If the clinic is forcibly... through threats of violence, the clinic is forcibly closed, now the women who have appointments, which are contracts, bilateral contracts, they can't get in.

It's a... it's two sides of the same coin.

So to extort the property of the clinic is to proximately injure the women in her business or property, which is... the standing comes under RICO.

This is something that petitioners have never even challenged at the trial court--

Justice Breyer: --All right.

So... so in other words, this instruction is correct that it's... it's--

Mr. Clayton: --It is, Your Honor.

Justice Breyer: --So a... a woman's right to seek services is property which, if they say, I don't want you, the clinic, to serve the woman so the woman can't get the services, that is obtaining property?

Mr. Clayton: It is under these circumstances where she has an actual agreement with the... the clinic.

She's not just going shopping.

Each woman who went to these clinics had an actual appointment for a particular service at a particular time.

When I have an appointment with my doctor for a biopsy, I have a property right in seeing my doctor at that time.

Justice Scalia: What have you obtained control of?

What have you obtained control of?

Mr. Clayton: Just as in the Carpenter case, you've obtained control of the right to do business and the intangible rights that come out of business, the exclusive rights.

Justice Scalia: Obtaining control means... means nothing at all if... if whenever you deprive somebody of... of a right, you say you obtain control of the right that... that you've deprived them of.

I mean, everything becomes an obtaining of property.

Mr. Clayton: When one uses a demand to make one cede their control over property... this is my pen.

This is my property.

It has ink and plastic.

But I also have a right to use it for writing.

And if someone puts a gun to my head and says, if you use that pen, I'll shoot you, they have taken my property.

They've taken my control.

Justice Scalia: If I... if I say to you, don't... don't use that pen, or I'll do something unlawful and you don't use the pen, I have obtained the pen.

Mr. Clayton: You have obtained control.

Justice Scalia: In... in ordinary parlance, I have obtained the pen.

Mr. Clayton: Your Honor, in the Florida Prepaid case, in the Craft case, in the Drye case, this Court made crystal clear the essence of intangible... and, for that matter, tangible property is the rights that come out of it, especially the right of control.

The right to control my pen, the right of the clinics to control their--

Justice Breyer: Or what about the right to perform a job?

Let's think of a labor strike.

Mr. Clayton: --Absolutely.

Justice Breyer: And... and think of the strike, my goodness, where people can't get into the factory.

And... and somebody comes out and says, you've... you've interfered under the Hobbs Act and have obtained property; namely, my right to perform my job is interfered with.

The person at the soda fountain... you've heard the litany.

Mr. Clayton: Right.

Justice Breyer: There are the soda fountain... the sit-ins.

The soda jerk who wouldn't serve the black customers.

Well, this... this is interfering with my right to perform my job.

I mean, this seems... you have another statute that you can sue under.

But a lot of... a lot of people who don't like these various demonstrations don't, and they'll all be in under the Hobbs Act and... and RICO and so forth.

I'm rather concerned about this problem.

I'd like you to address it.

Mr. Clayton: I'd like to address those, Justice Breyer.

Let's start with the soda joke... jerk example.

Martin Luther King didn't tell his followers to go into the Woolworth's and bash the people around and forcibly prevent the white people from getting service.

Justice Scalia: No, but just obstructing... just obstructing... you've used the term violence several times.

That's not what the instruction required.

Mr. Clayton: It--

Justice Scalia: As... as your argument to the jury itself indicated, it was enough if they obstructed the entrance and failed to part like the Red Sea--

Mr. Clayton: --Not true.

Justice Scalia: --if somebody wanted to go in.

Mr. Clayton: Justice Scalia, that is not correct.

We... the instruction required that the respondents be made to give up property.

We... and... and question 12 ensured that a mere blockade or sit-in... question 6 on the jury form asked the jury if any of the predicate acts they found was based on a mere blockade and sit-in.

The jury said no.

I told the jury don't include in your predicate acts... I told them... anything that was based on mere speech, or mere presence, or the message.

It had to be something that involved force or violence, the wrongful use of fear--

Justice Scalia: I... I am reading the closing argument on behalf of the clinic plaintiffs at the trial, and it says, in every issue we've shown you the property rights of the clinics and the women were extorted under RICO.

Even a few hours of deprivation of legal rights will satisfy the RICO act of extortion.

There is one way, I guess, in which you don't have the element of force in a blockade, and that would be if the blockaders did something that they were specifically instructed that they should never do, that is, politely move aside, part like the Red Sea, and let a woman through.

But you know that never happened.

No witness ever testified to that.

No witness... not defense, not plaintiff... ever said that any of the blockaders were instructed to let women through.

In other words, you told the jury that you could find an offense here under the Hobbs Act by the mere blockade.

It wasn't smacking people around.

It was just not letting people in.

Mr. Clayton: --No, Your Honor.

If the jury had found a mere... first of all, that was argument.

The jury follows instructions not argument, as the Weeks case from this Court has held.

But the evidence supported--

Justice Scalia: So you're... you're changing your position here.

Mr. Clayton: --No, Your Honor.

Justice Scalia: I see.

Mr. Clayton: When we made... we made that argument, but we also told the jury that if they were basing any predicate acts on the mere presence and a mere blockade, mere sit-in, they had to put yes to question 6.

They put no because we showed them that they had to find that any predicate act needed an element of force or violence.

And that's what PLAN did.

It used these--

Justice Kennedy: Well... well, but still... still it seems to me that your... your theory doesn't depend on violence.

Your theory is that you're obtaining... or that the defendants here were obtaining property because they prohibited its use.

That's your theory.

Mr. Clayton: --Yes, Your Honor, by... by wrongful means.

That's correct.

Justice Kennedy: And... and so... so long as the means were wrongful, the obtaining definitional problem still remains, and I think you should address that.

Mr. Clayton: I'd like... yes, I'd like to go back to the Carpenter case.

Mr. Winans had the information, but then he wrongfully obtained it.

How did he wrongfully obtain it?

When he exercised dominion or control over it.

This Court said he... he wrongfully obtained it when he deprived... that was this Court's word... deprived the Journal of its right to control that property.

In the Green case, the same way.

The--

Justice Ginsburg: How about Carry Nation?

I... you would concede, I take it, based on your argument that if RICO had been around then and the Hobbs Act, that she would have been in violation.

Mr. Clayton: --I would, Your Honor, if she had been doing it to get consent, to get the business to change its ways, which I guess she was.

Yes, that's not the lawful way.

If my client, the National Organization for Women, organized people to go to Augusta Golf Course and tear up the greens until they let women members, that would be extortion.

Justice Scalia: But it is... it is strange to think of Carry Nation, that notorious extortionist.

I mean, you know, that's just not the crime involved.

There... there's a crime there, but is it extortion?

Mr. Clayton: Your Honor, the Hobbs Act doesn't give exemptions for motives, as this Court has repeatedly held.

There's no more a motive requirement there than there is under RICO.

Justice Ginsburg: What's the difference between--

Justice Stevens: --Ms. Clayton, may I ask you one question?

I just... I... I want to be sure I heard you correctly.

There's a definition of property in the instructions, a three-part definition, at page 158.

Did you tell us that that instruction was not objected to?

Mr. Clayton: Oh, no, I don't believe I said that.

Justice Stevens: I just misunderstood you.

Mr. Clayton: The... the petitioners had offered a definition of... of extortion that was part with property, and they didn't define it.

So at the trial... at the pretrial stage, that was all they offered.

They didn't object then.

During the course of trial, they made numerous objections.

I can't say they never objected.

They didn't timely object.

And their original view of what extortion meant was part with property, which is the same I think as give up property.

Justice Ginsburg: What is the difference between coercion and extortion?

Mr. Clayton: The difference is whether property is being attacked.

When you coerce somebody to give up their First Amendment right, that might be coercion, but since it's not focused on property, it's not extortion.

Justice Scalia: What would you coerce them to do that is not the giving up of property?

Give me an example.

Mr. Clayton: To stop speaking.

You don't have property in your speech.

Liberty interests are not the subject of extortion, but... but property interests are.

Every extortion is a coercion.

Justice Souter: Shouldn't we draw the line this way?

Instead of speaking as, for example, the Solicitor General did and some of the cases do about obtaining control, isn't the way to... to adhere to the line between the liberty and property distinction to say that you extort if you gain control in a way which prevents them from doing business, i.e., engaging in a property exercise, but you do not extort if you gain control simply in the way they do business, i.e., their choice of whom to serve?

If we draw that distinction, then the old sit-ins in the lunch counter weren't there to stop them from doing business.

They wanted them to do business.

They wanted them to do business with them.

Whereas, the case which I think you have is a case that could be argued that the point of it was to stop the business, period, and that gets into property and crosses the line from liberty to property.

Would you accept that distinction?

Mr. Clayton: Not quite, Justice Souter.

I certainly agree that the... that the sit-in protesters were not extorting anybody because they were trying to change people's mind by persuasion, not by intimidation.

But I believe if you look at the old--

Justice Souter: Well, they wanted a... I mean, but they... the--

Mr. Clayton: --They--

Justice Souter: --their immediate object was to get the sandwich or the Coke.

So that was easy.

Mr. Clayton: --But... okay, that... that may be right.

But when we look at the old organized crime, the classic organized crime extortion cases that the Hobbs Act was based on, we see organized crime going in saying, let these people run your pension fund.

Don't do business with these people.

Fire these people.

Hire those.

Any attempt to control a lawful business decision I believe is extortion, whether it's positive or negative.

Justice Souter: Well, maybe... maybe it is, but I... I think... among other things, I think we are, and should be more concerned about the First Amendment issues which arise when you cross the line into liberty than the... than the cases were 40 years ago and--

Mr. Clayton: But the proper... excuse me, Justice Souter.

The best way to address the First Amendment issue is to apply the standards of Claiborne Hardware to any extortion at conduct, as was done here.

Make sure that the petitioners had to have specific intent that the crime be done.

Make sure it was done knowingly, willingly, wrongfully, not just accidentally.

Make sure the enterprise authorized or ratified it.

Those were the instructions given here.

There was... nothing could be a predicate act unless all those tests were met.

And then on top of that, they had to use demands, wrongful demands, to control lawful business decisions.

And I do believe that decisions either to do something or not to do something, as long as the business owner... say the company makes round widgets and square widgets.

And the... the extortionist says, we don't like round widgets.

We want you to only make the other kind.

Or maybe they don't make round and they want them to start doing it.

That's as much a control of their business decisions as all those classic organized crimes that were the basis of the Hobbs Act.

And it's just as offensive here.

Your Honor, we ask the clock not to turn back the... ask the Court not to turn back the clock on 50 years of Hobbs Act jurisprudence which protected businesses and their customers in making their lawful business decisions.

We ask the Court to decline to add any limitations like tangible or personal to... to the Hobbs Act.

By the way, even if you did, the State law--

Justice Scalia: --You want to retain the labor union exception, however, I assume.

Mr. Clayton: --And of course.

Enmons... and it's section (c), Your Honor.

It's section (c) of 1951 that says nothing in this law will affect... and then they list all the labor laws.

That's why there's a union exception.

Plus the... the New York and all the other States had not only a statutory labor exception, but common law.

And please don't--

Justice Stevens: Thank you, Mrs.... Ms. Clayton.

Mr. Clayton: --Thank you.

Thank you, Your Honors.

Justice Stevens: Mr. Englert, you have 6 minutes left.

Rebuttal of Roy T. Englert

Mr. Englert, Jr.: Thank you, Justice Stevens.

The defendants in this case objected strenuously to reading the word obtain out of the Hobbs Act.

They did not say that giving up property is enough.

If you read the 1995 opinion wrongly denying the 12(b)(6) motion, that's all over the place.

If you look at pages 4324 to 4340 of the transcript at the jury colloquy, the point that there needs to be obtaining was made quite strenuously.

Justice Breyer: Was... was this particular instruction, the one that I read from in 1998, the instruction that had the three parts to it... was that objected to?

Mr. Englert, Jr.: Yes, at the... at the pages I indicated.

People v. Barondess.

The work stoppage led to obtaining $100.

Of course, it was extortion.

That's the property in that case.

That's... it's cited in footnote 16 of our opening... of the Scheidler opening brief.

United States v. Cleveland Indians Baseball Company.

This Court reminded us members of the bar that the tendency to assume that a word used in two different legal rules always has the same meaning, has all the tenacity of original sin, and must constantly be guarded against.

To think that property's definition in tax cases and in Fifth Amendment takings cases is necessarily the definition of the Hobbs Act is simply wrong.

The Hobbs Act draws its definition of property from the common law and the New York law, not from takings cases and tax cases.

The First Amendment is in this case.

Yes, the Court did not take the First Amendment question, but the principle of constitutional avoidance always governs the construction of statutes.

And Ms. Clayton concedes that classic protest activities that are venerated in American history in retrospect would be covered as extortion by her definition.

That should give the Court pause.

Claiborne--

Justice Souter: They wouldn't... they wouldn't be if you observed the distinction I was throwing out.

Mr. Englert, Jr.: --The... the answer to that distinction, if I may, Justice Souter, is Claiborne Hardware and Carry Nation... those fact patterns certainly would be covered even under the distinction you suggest.

There were 10 acts of violence in 1966 in Claiborne Hardware.

Justice Souter: Yes, Carry Nation would be covered.

There's no question.

The... the lunch counter sit-ins would not, as I understand it.

Mr. Englert, Jr.: Well, actually I... I don't think that's historically accurate.

I think there was an effort to stop the lunch counters from serving other people in addition to getting them to... to serve black people.

But it doesn't matter.

Justice Souter: Well, the--

Mr. Englert, Jr.: It... it... there are... there are examples that this Court should be concerned, I respectfully submit, about calling extortion under Ms. Clayton's definition, and that would include the facts in Claiborne Hardware.

That would include the Carry Nation example.

The Seamless Garment Network brief goes into many other examples.

Justice Stevens: --If the conduct in Claiborne Hardware was pretty rough.

Maybe it should have been included.

Unknown Speaker: You're not going to get... you're not going to get my--

Mr. Englert, Jr.: Your Honor, the... the opinion of the Court in that case refers to it has having elements of majesty as well as elements of violence.

And the Court really should be concerned about whether the classic historical pattern... and please look at the Seamless Garment Network brief... the classic historical pattern of venerable leaders whose followers get out of hand is really what is meant by Hobbs Act extortion and RICO.

Justice Souter: --No majesty with Carry Nation.

I mean, you don't get my sympathy by saying you... you might have interfered with Carry Nation on--

Mr. Englert, Jr.: Well, I--

Justice Ginsburg: --He didn't say might have.

You said that you would.

Mr. Englert, Jr.: --There's another more legalistic reason.

Justice Ginsburg: I think both sides agree on Carry Nation.

Mr. Englert, Jr.: If... if I may, there's another more legalistic reason why Ms. Clayton's and the Solicitor General's position has to be wrong, and Justice Breyer and others have laid their finger on it, Justice Ginsburg as well.

What they're talking about is the classic example of coercion, not extortion, and for those who like legislative history, the fact that organized labor got coercion out of the statute should give you pause.

For those who don't like legislative history, the fact that there's a list of predicate acts and coercion isn't one of them should give you pause.

I think almost everyone agrees that there has to be at the very least a remand in this case, and Ms. Clayton hasn't quite conceded it.

But if this Court's decision in Griffin v. United States, a criminal case, is applicable in civil cases or if this Court's decisions in Yates v. United States, Maryland v. Baldwin, Sunkist Growers are applicable, then this jury verdict, which almost indisputably rests, at least in part, on indefensible notions of property, has to be reversed.

Justice Stevens: Can I ask you one question about that?

Did the individuals get damages here, or was it just the clinics?

Mr. Englert, Jr.: Only the clinics for extraordinary security costs.

Justice Stevens: Okay.

Mr. Englert, Jr.: Violence.

Let's talk about violence for a moment.

Please look at... at special interrogatory 4(e).

The jury was asked to find how many acts or threats of violence to persons or property were there.

The jury said four.

Ms. Clayton argued 30 in her closing argument, and the jury said 4.

So actually the jury rejected... we know to a certainty the jury rejected most of NOW's evidence, and there weren't even any allegations that Mr. Scheidler, Mr. Scholberg, or Mr. Murphy actually engaged in violence.

There were allegations they were connected to violence, not that they engaged in violence.

And I should say my clients are proponents of nonviolence.

Mr. Terry was not alleged to engage in acts of violence either, I should add.

RICO.

Section 4 of the Sherman Act is repeated almost verbatim in 1964(a) and 1964(b).

Section 7 of the Sherman Act is repeated almost verbatim in 1964(c).

Section 4 of the Clayton Act is repeated almost verbatim in 1964(c).

Section 15 of the Clayton Act is repeated almost verbatim in 1964(a) and (b).

Section 16 of the Clayton Act, the statute that authorizes injunctions, nowhere in 1964.

And as... as... thank you.

Justice Stevens: Thank you, Mr. Englert.

Attribution:

The Oyez Project

Featured:

Gonzaga University v. Doe - Oral Argument

Fri, 09 Jan 2009 14:50:23 +0000

Case:

Gonzaga University v. Doe

Media File:

01-679_20020424-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in Number 01-679, Gonzaga University and Roberta S. League v. John Doe.

Mr. Roberts.

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

In 1974, when it enacted the Family Educational Rights and Privacy Act, Congress conditioned Federal funding for educational institutions on the institution not having a policy or practice of releasing student records without consent.

Congress did not phrase this condition in terms of individual rights.

It did not, for example, follow the model of title IX, enacted 2 years earlier and also dealing with educational institutions, and say something like, no student at a school receiving Federal funds shall have his records released without his consent.

Instead, Congress proceeded more indirectly.

It said that no funds shall be made available to any institution having a policy or practice of releasing student records without consent.

The statute is directed to the Secretary of Education.

He's the one who makes Federal funds available, not to the institution receiving the funds, and certainly not to the individual student.

This Court's cases establish that that is a distinction that makes a difference.

In Cannon, for example, the Court said there would be far less reason--

Mr. Roberts: Mr. Roberts, isn't it primarily a distinction that makes a difference in connection with whether there's an implied cause of action, rather than whether 1983 authorized a cause of action?

Mr. Roberts: --In the implied right of action question there are two questions, did Congress intend to create a right, and did Congress intend to provide a judicial remedy?

In the 1983 context, there are two questions, did Congress intend to create a right, and did Congress intend to preclude resort to the 1983 remedy, so that first question I think is the same under both categories of cases, and as the Court said in Cannon, if Congress phrases the statute as... quote, as a prohibition on the disbursement of public funds, there's far less reason to think that they intended a private remedy.

In addition, purpose speaks in terms of an institutional policy or practice, not individual instances of disclosures.

Again, the contrast with a rights-creating provision like title IX is stark.

Title IX says, no student shall be subject to discrimination, but FERPA doesn't look at what happens to individual students.

It looks at institutional behavior, institutional policy or practice.

Mr. Roberts: The statute does talk about rights of students and rights of parents.

It's, of course, as you say, preceded by the mandate that there shall be no policy, but in this regard it seems to me to be at least more specific than... with references to rights than some of the other funding statutes we've looked at.

Mr. Roberts: Well, of course, the word rights does not appear in the disclosure provision, subsection (b), and in Pennhurst, where the Court was dealing with developmentally disabled bill of rights, the Court explained that just because the statute uses the word rights doesn't mean that it creates a 1983 right.

Mr. Roberts: Yes, I recognize in the one section that we're talking about here you have a stronger argument than the other, but if we assume for the moment would have a 1983 cause of action under the whole act without going down provision by provision, then I do think you have to recognize that the act does talk about rights of students, rights of parents to look at files, et cetera.

Mr. Roberts: Well, first of all, the Court in Blessing said that you don't look at the whole act.

You have to look at the particular provision that is relied upon to create the 1983 right.

Second of all, we're 6 years before Maine v. Thiboutot when Congress passed this, so it's not as if they're using rights as some term of art under the established jurisprudence, and finally, I think Congress can use the term to refer to the opportunity of parents and students to participate in the administrative remedy, to the criteria that the Secretary of Education is to use in deciding whether to terminate funds, without thereby necessarily triggering coverage under section 1982.

Mr. Roberts: Well, I think it's that latter rationale that might be stronger for your case.

I'll be somewhat reluctant to parse through this statute and say there's no right under (b), there is a right under (e), et cetera.

Mr. Roberts: Well, whatever rights, whether you're talking... putting aside the question whether it's a 1983 right or a right to participate in the process that's established under the statute, it is part of the policy or practice that the Secretary of Education is to look to in deciding whether to disburse funds.

The obligation is to the Secretary, not to the institution, and that is made clear when you look at what Congress said about enforcement.

The Congress said, the Secretary shall enforce FERPA, and the Secretary shall deal with violations.

Now, that deal-with-violations language should strike the Court as unusual and, in fact, nowhere else in the United States Code does Congress tell an agency to deal with violations.

It has almost a colloquial tone to it.

Mr. Secretary, FERPA is your problem, you deal with the violations.

There's no suggestion that they would be dealt with by private actions brought in court and, in fact, that conclusion is reinforced when you look at subsection (g), which tells the Secretary, you set up an office to deal--

Mr. Roberts: Whereabouts is this, Mr. Roberts?

Mr. Roberts: --12a of our statutory appendix, Your Honor.

Mr. Roberts: Thank you.

Mr. Roberts: It says to the Secretary, you set up an office to investigate, process, review, and adjudicate complaints about violations under FERPA.

I think this is something--

Mr. Roberts: You say violations of this section.

You tell us that there's no violation of this section unless there's a policy, right?

Mr. Roberts: --There's no violation unless there's a policy.

Mr. Roberts: So he doesn't have to investigate any individual complaint, unless the person comes in and says, not only do they do it to me, but this is their policy, right?

Mr. Roberts: It's evidence that there might be a problem with the school's policy, and this is what makes it different, for example, from the Wright case.

In Wright, the Court said, look, all you can do is terminate funding.

There's no process to bring complaints to the attention of the Secretary.

That's not enough.

Here, Congress said to the Secretary, you set up a complaint procedure, and if someone's got a problem with the release of their records you investigate it, you process the complaint, you review it, and you adjudicate it, and what has happened is that complaints have come in, and the Family Policy Compliance Office have gotten responses from the university, and voluntary compliance has ensured that the policy and practice of the institution complies with the Secretary's view.

Mr. Roberts: I guess that that's all that the plaintiff could accomplish in court anyway.

The plaintiffs here don't contend that they would be entitled to recovery if there is no policy or practice.

Mr. Roberts: That's correct.

That's correct.

Mr. Roberts: So the Secretary's enforcement authority is coextensive with what the court did.

Mr. Roberts: In terms of the scope of liability--

Mr. Roberts: You'd need an allegation of a policy or practice.

Mr. Roberts: --Exactly, but it is the fact that Congress focused on the policy or practice that helps establish that they were not concerned with individual instances of disclosure.

It is odd to speak of a distinctly individual right being protected when whether it's protected or not depends on whether the school does the same thing to others.

That looks more like a systemic concern, not an individual concern, and it's the--

Mr. Roberts: Well, Mr. Roberts, why are they mutually exclusive?

The Secretary has this authority, and I think your argument would be more impressive if this were a large operation.

On the one hand you say, the courts, that the institutions will be harassed by all these lawsuits across the country, and yet this one agency that you are saying will take care of it, this centralized administration, we're told that as of 2000 it had all of seven staff members in that entire office, hardly a number that is likely to be able to handle a lot of complaints.

Mr. Roberts: --It's very important to keep in mind the distinction between how matters are handled before the Family Policy Compliance Office and in court.

FERPA places a premium on voluntary compliance, on informal and inexpensive adjudication.

A 1983 damages action in Federal court doesn't.

The statute says the Secretary shall deal with violations, not the court.

The Secretary says... and the statute goes on to say, we're going to tell you how to deal with individual complainants.

They don't go to court, either.

They go to the office that's set up by the Secretary, and there they will find an informal, inexpensive procedure in which people can quickly find out what the school's answer is and, in a case in which it suggests that there's a policy or practice problem, secure voluntary problem.

Mr. Roberts: Do we know from the... maybe the Solicitor General can tell us... if the seven people are overworked?

Mr. Roberts: In fact, in practice most of what they do is field questions from the school, how do we handle this situation, what do we do about this?

Mr. Roberts: But how do you get a stop order?

One of the points that were made is that if records are about to be divulged to, say, a newspaper, and the student or the parent wants an immediate stop order, you can go into court and get a TRO.

There's nothing comparable in the Secretary's arsenal that has that kind of muscle behind it, is there?

Mr. Roberts: There certainly is.

The first thing, if you're a student subjected to that, what you would do is call the Family Policy Compliance Office and the Secretary, keep in mind, has the cudgel of terminating funding behind the most informal telephone call or correspondence.

Schools respond to what the Secretary of Education tells them to do with respect to FERPA, because they appreciate the sanctions that can be brought.

That's the way the system has worked effectively since FERPA was enacted.

Mr. Roberts: This office can't really give relief to any individual, however, right, except to tell the school not to release, wrongfully release records in the future, right?

Mr. Roberts: The focus of the office is in vindicating what the statute provides.

The statute is directed to institutional behavior.

The office reviews complaints in order to secure compliance with the proper policy or practice.

Mr. Roberts: So all--

Mr. Roberts: It is... it is--

Mr. Roberts: --All you have to do is eliminate the policy, and everything that's happened in the past is water over the dam--

Mr. Roberts: --Because--

Mr. Roberts: --and go and sin no more is what the Secretary says, right?

Mr. Roberts: --Because the statute is directed to prospective compliance, not retrospective compensation for injuries.

That is a different focus than section 1983.

The 1983--

Mr. Roberts: What do you do about the language where it says, no funds shall be made available to a school that effectively prevent, et cetera, the student... it says, of the right to inspect.

It says of the right to inspect right in the first sentence, and then later on it says in (b) no... or later on it says that you have to tell the parent in (e) of the rights accorded them by this.

I mean, that's the same question, but I want to get... that others have asked, but I want to have very clear in my mind the specific answer.

It says, we won't give you any money if you interfere with the right.

Now, that sounds as if there's a right, and then they underline it by saying, and you have to tell them about the right, and what's... your direct response to that is what?

Mr. Roberts: --The direct response is that... you left out words in the quote, which is that no funds shall be made available to an institution that has a policy or practice, and the question is, is Congress focusing on protecting individual rights in, as the Court said in Blessing, an individual way, or are they addressing a systemic concern.

The policy, or the focus on the Secretary... this statute is directed to the Secretary.

Don't make funds available, and it says, look at the policy or practice.

It's not written the way title IX is, which would suggest the conferring of an individual right.

Secondly, you're quoting from subsection (a).

Subsection (b) does not talk about rights.

And finally, the answer--

Mr. Roberts: Well, but Mr. Roberts, let me just be sure I understand your answer.

I have the same problem Justice Breyer does, because in 1232g(1)(B) on page 2a, no funds and so forth shall be made available if the agency has a policy of denying or effectively prevents the parents of students the right to inspect.

Now, is the right to inspect a Federal right?

Mr. Roberts: --I think not, because--

Mr. Roberts: What is its source?

Mr. Roberts: --The right to inspect is not an independent and freestanding right.

It is a description of the sort of policy or practice that should prompt the Secretary of Education to withhold funds.

In addition, this is not the provision that's at issue in this case.

Subsection (b)--

Mr. Roberts: Well, I understand, but your initial submission is that this is not a rights-creating statute, it just... but I don't know where the right comes from that they refer to in that section and also in... on 12a informing parents and students of rights under this section.

Mr. Roberts: --Under this section.

I think Congress can use the term, rights, to refer to the opportunities that are provided to the parents and students and to the criteria that the Secretary of Education will look to in deciding funding, without thereby triggering coverage under section 1983.

Just like in Pennhurst, Congress used the word rights repeatedly in--

Mr. Roberts: But do you think that they would have had the rights described herein even if this statute had not been passed?

Mr. Roberts: --No.

There would not have been... no rights are conferred under this statute.

What is conferred is discretion on the Secretary of Education to withhold funds depending upon a policy or practice.

In describing the policy or practice that should trigger action by the Secretary of Education, the statute refers to opportunities that must be provided to parents and students by that institution, but in doing so I don't think Congress is necessarily triggering the right to a damages action.

Mr. Roberts: You use the word opportunity in the statute wherever the statute used the word rights.

Mr. Roberts: Well, the statute doesn't use the words right under subsection (b).

The statute in Pennhurst was called the Bill of Rights, and this Court concluded that that did not confer rights.

The question is whether Congress acted in a way that indicated an intent to confer an individually enforceable right.

Mr. Roberts: Mr. Roberts, you said that 1232g(b) is not the section at issue here.

Mr. Roberts: No--

Mr. Roberts: What section is the one at issue?

Mr. Roberts: --1232g(b) is the section at issue.

Justice Stevens and Justice Breyer were quoting from 1232g(a).

(a) refers to rights, (b) does not.

Mr. Roberts: Well, but (b) does say, the parents of students the right to inspect and review.

Mr. Roberts: That's (a), Your Honor.

That's 1232g(a)(1)(A).

Mr. Roberts: (b) is on 6a, I gather is what you're--

--Oh, (b) is on--

Mr. Roberts: (b) is on 6a, and it does not refer to rights.

Mr. Roberts: --Okay.

Thank you.

Mr. Roberts: Thank you, Your Honor.

Mr. Roberts: Ms. Millett, we'll hear from you.

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Ms Millett: Mr. Chief Justice, and may it please the Court:

If I could begin by responding to Justice Kennedy's question about whether the Family Policy Compliance Office is overworked, I will tell you that they do work very hard, but they handle... for a small staff, they handle an amazing amount of work, and have been doing so for 28 years under this statute.

They handle over 900 pieces of correspondence a year, up to... close to 100 of things that are formally categorized as complaints as they go through the investigation stages.

Mr. Roberts: Three letters a day, I guess.

Ms Millett: Hmm?

Mr. Roberts: That's three letters a day.

Ms Millett: Yes, but they also... I'm not done with my... forgive me.

[Laughter]

They have about 300 phone calls a month, and well over 1,000 e-mails a year to--

Mr. Roberts: That's 10 phone calls a day.

[Laughter]

Ms Millett: --That's right, and well over 1,000 e-mails, and I think one of the reasons that there isn't... I mean, if you look at the legal landscape out there, too, there hasn't been an enormous volume of 1983 actions, and that is because the Secretary has been very successful, I think, in communicating and enforcing this in an informal manner with the universities.

The universities wish to comply with this, and a lot of it is... we've had 28 years now to explicate what this statute means and to clarify what it means.

Now, I fear that may change if this Court were to recognize a 1983 action--

Mr. Roberts: What is your opinion about the idea that this could be bifurcated, that it orders a right to inspect, that isn't going to be too tough, you let the person look at the record, but there's a policy of disclosure.

Does that make sense in terms of the statute to say there's a private right under (a) but not under (b)?

What's your opinion of that?

Ms Millett: --Okay, I'll answer that in two stages.

It makes sense to bifurcate analysis as a matter of this Court's 1983 precedents, and specifically that's exactly what the Court did in the Blessing case, which is your most recent case up here.

As a whole, we don't think it actually makes sense to do so under this statute.

The Court may not decide that today because the only provision at issue is subsection (b), which does not refer to rights and focuses on policies or practices, but our position is that there are three mutually reinforcing features here, both in (a) and (b), that show there is not a right under 1983, and that is... even under (a), the very beginning of the sentence, and the operative command is that no funds shall be distributed, or shall be distributed by the Secretary of Education, and that is distinctive, unique language that this Court recognized, suggested in Cannon, and held just last term in Sandoval.

It's not the type of language Congress would use to create individual rights and in particular, in 1974, 2 years after title IX was enacted, Congress chose different, distinctly different language that is very uncommon in the U.S. Code.

Mr. Roberts: If you go through the first three factors listed in Blessing, Congress intended to benefit the plaintiff, and it not be beyond judicial competence--

Ms Millett: Not not be--

Mr. Roberts: --and there must be an unambiguously binding obligation on the State, it would seem to me that those are met here, and that you then have to go to the next part of the test which is... that creates a presumption that there is a right.

Ms Millett: --Well, as we said in our brief, we think that the problem here is not that it's vague or amorphous, and it's not that there's not binding obligations, which is the second two prongs of the Blessing test, but the first prong of the Blessing test, while phrased in terms of benefiting individuals, the Court made clear in Blessing it's not just a general inquiry if it's of some good to people, because all legislation is of some good to somebody.

It is whether it creates individual entitlements, and that's where we think this statute fails, a statute that--

Mr. Roberts: Well, with reference to the other parts, the non-(b) parts of the statute, it does seem to me that it talks about the student and the parent in very specific terms, and it uses the term, rights.

Ms Millett: --Well, again, this Court made clear in Pennhurst that you can't just look at the word right in isolation.

You have to put it in context, and there are some important contexts I would like to stress, again even up through subsection (a).

The right begins with... it begins with the no-funds command.

The focus is on a policy, system-wide basis, and even when it talks about rights, it's not an individual right, it is the... the education records of the children... I'm sorry, I'm reading from... this is my appendix.

I hate to confuse the Court, to my brief, at 1a, where subsection (a) is, and there has to be a policy of denying or effectively preventing the parents of students, plural, access to these records, so we think that makes clear that you have the same programmatic, system-wide rule here, and in fact the Secretary's position is that if you had one instance of a failure to allow someone access to records during nonpolicy or nonprogram-wide failure to allow access to records, that would not violate FERPA.

The command is still... it's written differently.

I mean, the statute was put on, was enacted on the floor of Congress.

It didn't have long hearings where people sort of labored and struggled over precise language, but it contains--

Mr. Roberts: May I ask you... it's really the same question I asked Mr. Roberts, I suppose, but the first sentence of 1232g(a)(1)(A) refers to a policy of denying access, denying the right to inspect and review education records.

In your view, is that right a federally created right, or is that a right created by some other source and, if so, what is the source of the right?

Ms Millett: --I'm sorry, I'm having... there were too many numbers in that.

g(1)--

Mr. Roberts: it's the first sentence of 1232g on page 2a of the blue brief, and the first, very first sentence in the statute ends by saying the right to inspect and review the education records of their children, and my question is whether you think that is a federally created right and, if not, what is the source of that right?

Ms Millett: --I think it's not... I have two answers.

First of all, whatever it is, it's a collective, program-wide, aggregated right, because it speaks in the plural, but secondly it; 's not... I think it is used as Mr. Roberts said here in a shorthand way, and the legislative history says that one of the things they were trying to enforce here is what Congress considered to be pre-existing moral or legal--

Mr. Roberts: Let me be sure you have my question in mind.

Do you think the right to which the statute refers is a federally created right, or right with a different source?

Ms Millett: --I think what the statute is creating there is a Federal overlay to protect pre... as was said in the legislative history on page 17 of our brief, preexisting legal or moral right.

Mr. Roberts: So that if a school came back and said, in our State there's no such right, then the statute would not apply?

Ms Millett: Congress felt that when it said preexisting moral or legal rights, there was a sense of Congress that this is a type of, not in a bright sense that we use for purposes of 1983 actions, but the legislative history was that Congress had a sense here that this was something all individuals should have.

But this--

Mr. Roberts: It is something they should have by reason of this statute, and therefore it's created, or by some preexisting rule of law in some... at some other source?

Ms Millett: --Well, Congress' language was preexisting moral or legal rights, and so I'm not sure what one considers--

Mr. Roberts: If it's another source, it seems to me that the State or the institution could say, in this locality there is no such right, and that would make the statute totally inapplicable.

Ms Millett: --No, it wouldn't, because what you still have is, once you take these funds you have a Federal overlay.

Once you decide to take these funds your prior law doesn't matter, which you have--

Mr. Roberts: It's a Federal overlay on a nonexistent right, if I understand you correctly.

Ms Millett: --Well, there's a... there is... there's no doubt that there's a Federal level of protection here for privacy, and it's at an aggregated, collective system-wide level.

It's not at the individual level of--

Mr. Roberts: But you use the word overlay, Mr. Roberts used the word obligation, you stay away from the term, right, in the statute.

If we followed Justice Stevens' line of questions and concluded that there is a Federal right, would you necessarily... would your position... would that be fatal to your position, or would you say it's a right that can be enforced through a comprehensive administrative scheme?

Ms Millett: --In two ways it wouldn't.

It's not at issue in this case, and the second argument is that the nature of the... whatever the nature of the right is that's created here, Congress has created the very type of scheme that it thinks is appropriate to enforce these collective, aggregated, system-wide rights that it created here, that in fact--

Mr. Roberts: Well, are you in effect saying, as Mr. Roberts did, I think when he used the word, opportunity, that this is kind of, that the scheme of this section is sort of an if-then sort of scheme.

If you deny them the opportunity then... and you do so on a systemic basis, then the Secretary will take, or should take certain action.

Is that... you are saying essentially the same thing that he did.

Ms Millett: --Yes.

Mr. Roberts: So when you say there's a Federal right, you really mean there's an opportunity.

If the opportunity is denied, then certain administrative action can be taken.

Ms Millett: That's right.

There's a Federal obligation... to use Mr. Roberts' words, a Federal obligation, once you take these funds, to not have system-wide practices or policies that either deny access or, in this case, disclose without consent, or an authorized basis for disclosure, and I think it's very... again, very unique language.

You have... you didn't have to look at the two separately, but when you combined the no-funds language and the focus on system-wide policies and practices, that this Court made clear in Blessing that type of aggregate language doesn't create individual lights... rights, excuse me, and then you marry to that the fact that Congress has enacted an administrative scheme that is directly responsive to that type of system-wide overlay, there should not--

Mr. Roberts: Thank you, Ms. Millett.

Ms Millett: --thank you.

Mr. Roberts: Ms. Brinkmann, we'll hear from you.

ORAL ARGUMENT OF BETH S. BRINKMANN ON BEHALF OF THE RESPONDENT

Mr. Brinkmann: Mr. Chief Justice, and may it please the Court:

In FERPA, Congress gave parents the right to prevent the release of certain educational records.

That's evident from Congress' choice of words and the structure and history of the statute.

There are at least five indications of that intent, including references to rights under that provision, which I'll get to in a moment.

It involves reading two sections together.

First, in section... this is on page 9a of the red brief, at the very top.

In 1232g(b)(2)(A), at the top of page 9a, Congress prohibited a recipient from having a policy of releasing education records, quote, unless there is written consent from the students' parents.

Congress did not say, unless there is a policy of obtaining written consent.

Congress thereby--

Mr. Roberts: Now, you're reading from 9a, Ms. Brinkmann?

Whereabouts on page 9a?

Mr. Brinkmann: --At the very top, Your Honor, paragraph 2 begins that no fund shall be given to an agency, and explains that has a policy or--

Mr. Roberts: --see it either.

I'm looking at page--

--I think she said red brief.

9a of the red brief.

Mr. Brinkmann: --It's on page 8a of the--

Mr. Roberts: You're switching briefs on us.

Mr. Brinkmann: --I'm sorry.

[Laughter]

It's on page 8a of the blue brief, if you prefer that.

The problem is, there are other provisions in here I need to refer to.

At the very top of the page, it explains that no funds shall go to a school that has a policy of releasing information, and at the end of that first paragraph, quote, unless, and then we go to subparagraph (A), there is written consent from the students' parents.

Congress did not say, unless the school has a policy of obtaining consent.

Mr. Roberts: Yes, it does.

It says no money will go to an educational agency or institution which has a policy or practice.

Mr. Brinkmann: Unless.

Mr. Roberts: Unless.

Mr. Brinkmann: Yes.

Mr. Roberts: Now, if you don't have a policy or practice, the whole provision doesn't apply.

Mr. Brinkmann: If you don't have a policy or practice of releasing information other than under the preceding (b)(1), you're correct, Your Honor.

Mr. Roberts: The whole thing wouldn't apply, so I don't--

Mr. Brinkmann: And (b)(2)(A) is... (b)(1) says you can't... a school can't have a policy of releasing without consent, other than to certain categories.

Mr. Roberts: --It's a question of whether you read the word policy, what policy?

I think Justice Scalia is reading it as, what policy?

Mr. Brinkmann: It's a policy--

Mr. Roberts: A policy of releasing records without written consent.

Mr. Brinkmann: --That's not what not... that's not what (b)(2)(A) says.

That language is not... that is, the without consent is in (b)(1).

It's not in (b)(2).

It says, has a policy or practice of releasing or providing access to any personally identifiable information, other than direct information, or is permitted under paragraph (1).

That's what paragraph (1) does.

It permits a laundry list of releases where Congress said, we're not going to require parental consent.

School educators need this information.

(b)(1), no problem, you get all of this information without parental consent.

Other than in those situations, if you have policy or practice, then the school decides--

Mr. Roberts: I'm really not following you.

What do you think the unless goes to?

I take it that the unless goes to, no funds shall be made available.

Mr. Brinkmann: --Yes.

Mr. Roberts: Unless.

Mr. Brinkmann: Yes.

Mr. Roberts: Okay.

Mr. Brinkmann: So--

Mr. Roberts: But that whole provision, no funds shall be made available, only applies to an educational agency or institution which has a policy or practice of releasing.

Mr. Brinkmann: --Absolutely.

Mr. Roberts: If it doesn't have a policy or practice of releasing, it's entirely exempt from that provision.

Mr. Brinkmann: That's correct, Your Honor, because they did not... Congress did not intend to go after inadvertent releases.

For example, the school makes a decision if they are going to have a policy of releasing information to a scholarship program, or to the press, and if they have a policy release, they have to abide by this very specific requirement in (b)(2)(A).

Mr. Roberts: Well--

Mr. Brinkmann: They may choose not to.

It's parallel to the directory information provision in the statute.

Congress also said, you, school, can make a choice.

If you want to release things like names, classes, awards receipts under the directory information provision, you can make that decision.

You have to give notice at the beginning of the year, and you have to give parents enough time to respond whether or not they want to opt out of that.

Same thing under (b)(2)(A).

If you as a university decide that you want to have a policy or practice of releasing things beyond what is already authorized under (b)(1), which includes other teachers, emergency situations, Federal officials, all kinds of situations, then you have to abide by (b)(2)(A), and you cannot have that policy or practice unless there is written consent from the students' parents.

Mr. Roberts: --But it appears to be a scheme, at least as I read it, just directed at when Federal funds are going to be given to a school, and you determine that by whether the school has a particular policy or practice, and the remedy is withholding funds.

I don't see how you extrapolate from this statute the intent to create a private cause of action for damages.

Mr. Brinkmann: Your Honor, in addition to the language, unless there is, our position is, because there is that requirement, unless there is written consent from the parent, Congress intended to directly benefit the parents and to say to the parents in a particular situation, you can say no, I don't want this information released.

Parents may have different decisions based on whether or not they think it will benefit the child.

Mr. Roberts: But they can't do that, because I mean, if the information is released and the parent says, I object, the institution can say, oh, I'm sorry, that was just a mistake.

We don't have that policy.

You know, we released it.

Too bad.

We don't have the policy.

So there is no absolute right on the part of the parent to prevent it.

Mr. Brinkmann: There is, Your Honor, because the... if they do have a policy and practice, it's akin to the standard that the Court adopted in Gebser, and here Congress did that.

They said, we are not going to charge every institution with inadvertent release, but to the extent, as under Monell, if there is requisite knowledge by the school that they have a policy or practice, they're intending to be releasing information, they are charged with getting the consent from the parents, and again I have to--

Mr. Roberts: The consequence, if they don't get consent from the parents, the express consequence is no funds shall be made available.

Mr. Brinkmann: --Which is the commonality in all of the Spending Clause cases that have come before the Court, Your Honor.

Mr. Roberts: Ms. Brinkmann, but not the emphasis, as was pointed out by Mr. Roberts.

Title IX, title VI say, no person shall be, and this starts out with no funds.

Do you have any statutes, any spending statutes that uses the no funds shall, instead of no person shall be denied, where this Court has either implied a private right of action, or has found a right which 1983 can then be used to enforce?

Mr. Brinkmann: Well, Your Honor, there's never been a formula.

None of the statutes where the Court has found a right has included that language, Wright, Wilde, or Blessing, none of them have the language the petitioner and the Solicitor General now urges.

In fact, in footnote 12 of the Suter opinion the Court contrasted the language where they were not finding a right to a statute that, quote, said, no Federal payment may be made under this part, and they said, now, there's a specific requirement, so there's no formula.

None of the courts have had this language that they're now urging.

The Suter opinion refers to this type of language as being more specific, and it doesn't as a practical matter make any difference what these Spending Clause statutes do say.

If you receive Federal funds, you have to abide by these conditions.

Mr. Roberts: I'm not sure that I gave you my question precisely.

There are title VI, title IX, statutes that use the formula, no person shall, and under those statutes a right of action has been implied, and what I'm asking is, is there any statute with the language, no funds shall, where a right of action has been implied?

Mr. Brinkmann: No statute of that language has ever come before the Court, Your Honor, and all I'm saying is, there are many other cases in which statutes have been found to accord rights under section 1983 that don't have that no-student-shall language.

Mr. Roberts: What about... you say, you agree there is no example of a case we've decided where the term is no funds shall?

Mr. Brinkmann: That statute has not come before the Court.

I have to say in the title IX and title VI context, it was a broader inquiry of whether or not there was implied cause of action, but in Your Honor's opinion, in Suter, in footnote 12, it does refer to this type of statute and suggests that that is a direct requirement.

Mr. Roberts: If I may--

--Well, where is the statute... the footnote you're quoting speaks in terms of, or addresses the no funds shall?

Mr. Brinkmann: The precise language in that statute which is quoted in that footnote says that no Federal funds payments shall be made, Your Honor.

It's on page 361 of the opinion, and it's citing 42 U.S.C. 672(e) that says, quote, for example, no Federal payment may be made under this part, and then it goes on and it says that that is an example of more precise requirements as contrasted to the statute in Suter.

If I may, there are four other provisions I'd like to speak to in addition to the language, unless there is.

In addition, again on page 9a under (b)(2)(A), it's not just unless there is written consent.

That consent has to have included a provision of a copy of what is intended to be released by the school to the parents.

The parents have to be told why the information is being released, and the parents have to know to whom it is being released.

That is exactly what the Court referenced in Blessing about Congress addressing the particular need of the individuals who they're according the rights to.

They knew that parents were going to be able to need to know why the information was provided, exactly what it is, and to whom.

Parents may think it's fine to release financial information, personal information about their household for a scholarship or an honorary award purpose, but not, for example, to a newspaper story about low income families in the school district.

Third, the history of the... before I go to the history, actually, I want to explain another provision of the statute which I think--

Mr. Roberts: Two more.

You have two more coming.

You said you had four.

Mr. Brinkmann: --Yes.

Yes.

Actually, I'm going to jump in, though, because this responds to questions of the Court about the use of the word, right.

If you could turn to page 12a in the red brief, subsection (d), 1232g(d), is entitled,

"Students Rather than Parents' Permission or Consent."

That clearly references the permission or consent under (b)(2)(A).

That is where this permission or consent is referenced in FERPA, and it explains there the purpose of it, to explain that when a student becomes 18, as the student here was, or attending a school of higher education, the permission or consent required, and the rights accorded to the parents of the students, shall be required in accordance... (b)(2)(A) gives the student, requires permission or consent, and then gives the right to deny permission or consent.

That is a direct reference to the rights under (b)(2)(A).

Moreover, as members of the--

Mr. Roberts: So we have right, the word right used in (b) as well as in (a), or at least with reference to (b) as well as with reference to (a).

Mr. Brinkmann: --Much more precisely, Your Honor, here, because they are specifically talking not just about (b) generically, but about permission or consent.

Mr. Roberts: Why does right refer to (b)?

I mean, rights could refer to (a).

Mr. Brinkmann: Because the whole provision of (d) refers to permission nor consent, Your Honor.

There is no permission or--

Mr. Roberts: No, it says permission or consent of and the rights.

Mr. Brinkmann: --Yes.

Mr. Roberts: So--

Mr. Brinkmann: Yes, but--

Mr. Roberts: --(b), the first is this, and the other is that.

Mr. Brinkmann: --But if you look at the structure of the provision, they are referring to the actual permission or consent, because that's when you would need to know, do I go to the... when I... for a college student, do I go to the--

Mr. Roberts: The right to inspect after he's 18 is a right that goes to the student, not to the parent.

Mr. Brinkmann: --But Your Honor, this is specifically addressing the permission or consent provision.

You can tell by the heading of subsection (d).

Moreover, under (e), as Your Honor pointed out before, the school is obligated to inform parents or students of their rights under the regulations promulgated by the Secretary of Education.

One of the rights they are required to inform parents and students about is the consent--

Mr. Roberts: Ms. Brinkmann--

Mr. Brinkmann: --required there.

Mr. Roberts: --Where does it say that?

Where does it say that?

Mr. Brinkmann: It would be in the regulations, Your Honor.

Mr. Roberts: In the regulations, okay, fine.

Even if we say that you met the three Blessing standards, Blessing still kind of said in that opinion, there's something more, and the more is what seems to be the strongest emphasis of the case that Mr. Robert and Ms. Millett made, and that is that Congress created an enforcement scheme that they meant to be it, that would be incompatible with individual enforcement.

Mr. Brinkmann: Actually that, ironically, leads me to my third point, in fact.

When you look at this history, Congress clearly was addressing the interest of parents in controlling dissemination of information about their children.

This is a paradigm example of what they were worrying about, information that's gossip, unsubstantiated, never had a chance to respond to it, could have a devastating effect on a student's career.

Under petitioner's interpretation--

Mr. Roberts: But the issue isn't whether they were worried about that.

The issue is whether they wanted to eliminate that worry by having the Secretary police the thing, or by having lawsuits to vindicate private rights.

Mr. Brinkmann: --Yes, Your Honor, and I think--

Mr. Roberts: I don't see how you advance the ball at all by saying what they were worried about was precisely this thing.

I mean, I think Mr. Roberts would stipulate that.

Mr. Brinkmann: --Well, it was the point that Justice Ginsburg brought up before, which actually I think responds to your inquiry.

Under petitioner's interpretation, if this student had found out that this information was about to be released, information he could prove was false, he would have no avenue to prevent the release of that.

There was no method at the Department of Education to provide any individual remedy, let alone our TRO, and I think that that's even magnified by--

Mr. Roberts: It may not be the ideal remedy.

It may not be the best remedy, and one of the anomalies here that wouldn't be present in title IX is working through 1983, where you must have a State action pegged.

Now, here, it happened that there was a connection with a State, with a State officer.

The conversation was between private institutions and State officer, but suppose we have two schools, and one is about to give a record to a newspaper, and the other is about to do the same thing, and one is the State university, and one is the private university.

Under your scheme, the private university would be home free, it wouldn't be subject to 1983 liability, but the public would, and I think that would be a strange scheme for Congress to enact.

Mr. Brinkmann: --Your Honor, actually it's much more complicated than that.

It's just not whether or not suits are available against public or private, because, of course, State universities are often deemed arms of the State, so they're not subject to suit at all.

The only action that can be brought against a State official is for injunctive relief.

Moreover, most private elementary and secondary schools, as was pointed out in the amicus brief in support of respondent, don't receive Federal funding, so there are a lot of different ways in which there may be different actions, but that is because of 1983 Eleventh Amendment--

Mr. Roberts: Well, maybe that shows that 1983 really doesn't fit this pattern, because why... even, why should certain kinds of institutions be stopped, and others not, from doing the same thing?

Mr. Brinkmann: --Because the relationship of students at the private school is different than a relationship with a public school.

A relationship of a student at public school is defined by State law.

It is... and that's what an action under 1983 is, it's under color of State law.

Mr. Roberts: But doesn't the student have the same, whether we're going to call it right or opportunity, in the private school with respect to records, like a private university?

Mr. Brinkmann: Only if the school receives Federal funds.

Secondary and elementary--

Mr. Roberts: Which an overwhelming number of schools do.

Mr. Brinkmann: --Only universities, Your Honor.

Actually, the amicus brief of the ACLU cites a letter from the Department of Education explaining that the vast majority of private schools, elementary and secondary, do not receive Federal funding, but if I may, I think that the important point here is, the relationship of a student with a private school is different.

There is a contractual relationship there, and there may very well be other remedies against a private school arising out of... for example, here in Exhibit 1 at the trial, the handbook, Gonzaga promised to abide by FERPA and said, we will not release information without your consent.

There could be a contractual action there.

You can't have those kinds of actions against a school, public school.

That's why Congress created section 1983.

There was--

Mr. Roberts: Ms. Brinkmann, can I come back to your assertion that there is no right to an injunction, you can't get an injunction under this act, but you can't get an injunction, even if we accept your theory of the act.

You cannot get an injunction unless you show not only that they're about to release this information, but also that this is their practice or policy.

Mr. Brinkmann: --Absolutely, Your Honor.

Mr. Roberts: Isn't that right?

Mr. Brinkmann: Absolutely, and--

Mr. Roberts: So what good does that do you?

You have to go in--

Mr. Brinkmann: --Because in this case you needed the testimony of one witness--

Mr. Roberts: --Which suggests that you're not vindicating a private right of yours, that somehow what Congress is concerned with is the existence of a policy or practice that it doesn't like, even though--

Mr. Brinkmann: --With all due respect--

Mr. Roberts: --Even though you're being harmed by this release, under your theory you can't get an injunction against it.

Mr. Brinkmann: --I respectfully disagree.

Mr. Roberts: Unless you show that there's a policy or practice.

Mr. Brinkmann: You absolutely could get an injunction, Your Honor.

Mr. Roberts: How so?

Mr. Brinkmann: Because you needed the testimony of one witness in this case who said, we do this all of the time.

We disclose information to the State agency before--

Mr. Roberts: You need that witness, and if you don't have such a witness, you cannot get an injunction, isn't that right?

Mr. Brinkmann: --That's right.

That's a matter of proof, and Your Honor, what... I just have to emphasize that what the provision here goes to with the policy and practice in (b)(2)(A) is Monell, Gebser, it is Congress saying, we're not going to charge every university with this requirement.

If they have a policy or practice, if this decision is made at a high enough level that they would have requisite knowledge, that's the only place in which this section 1983 liability would be triggered.

Mr. Roberts: Is there... can I ask you one question on the practicality?

Assuming all the language is ambiguous, et cetera, and I would like you to remove this image from my mind, the image that I have in my mind was an earlier case argued here in this Court, and as a result of the lawyer's argument in that case I focused on the language, educational record, and I realized it's a close question, perhaps, as to whether those words do include things like a gold star the third grade teacher might give out in class, or the statement, you're going to get a bad mark on your report card.

I suddenly realized it's highly ambiguous, and the lawyer said that he had been cross-examining the school officials on this and related questions in the courtroom for several hours, I thought.

I mean, at least for a time, and suddenly it occurred to me, how are they teaching or running the school district, and the image that came up in my courtroom was of private actions all over the place trying to bring into court school officials to interpret language which really doesn't explain itself.

Therefore, a need for centralized administration, which of course would be harmful to some parents, but counterbalanced by the need for effective school administration, and those were the things in my mind, and that's the image it called up, and I want you to reply to that, because I think that's at the heart of this, at least the practical part.

I think I have at least five answers.

I haven't counted them off.

First of all, I think it's important to realize that that's one of the reasons you have the particularized examination in Blessing.

We are not saying there's a right under every one of these provisions, but if you look at (b)(2)(A), unless there is the specific requirement, the history of it, and also if you compare it to the other release provisions that do not have this kind of right, they say you have to notify the parent, or you have to make the person who's getting it promise to destroy it when they're done with it.

They don't have this right.

So if you look at this particular right, then you step back and you realize what the Department of Education has been saying.

Schools comply with this statute.

It is clear and simple.

You give them a copy, you ask the parents... tell the parents why and to whom it is going.

In the 28 years since this statute has been enacted, there has been no flood of litigation, despite the fact that the Second Circuit, I think 15 years ago, held that there was a section 1983 cause of action, the Fifth Circuit more than 10 years ago.

There is no Federal court of appeals that has taken petitioner's position.

I think in the past 5 or 6 years there have been at least two more circuits.

People comply.

But Ms. Brinkmann, if your... if the force... if we accept the force of your argument, then I think we'd have to say, well, Congress really didn't need to bother with the centralized administration provision, and yet Congress did put it in, and it seems to me the most likely reason that it put it in is the reason that Justice Breyer just gave.

Mr. Brinkmann: I think--

Mr. Roberts: So you may have made a good argument for getting rid of it, but as long as it's there, it seems to have the same lesson that his question suggests.

Mr. Brinkmann: --I think that the FPCO office serves a admirably meritorious role.

It answers countless numbers of phone calls and inquiries about this, but its own interpretation of its role I think is really illustrated by footnote 6 in our brief, which is on page 35.

In 1987, when FPCO changed regulations, it explained that it wasn't going to require schools even to afford them access to education records information because they don't go out and investigate.

What more accurately reflects their investigation is allowing schools to submit reports... and this is quotes... since its inception, FPCO has not conducted any on-site visits to resolve complaints.

Rather, it has resolved complaints through correspondence and telephone calls with the affected parties, and that works in the vast majority of cases.

In the limited number of cases that are brought under FERPA in the Federal courts, Federal and State courts since its enactment, this is the only reported case that anyone has located for punitive damages, and the only other case that had any damages was $1 of nominal damages that we've been able to--

Mr. Roberts: But that may be a very good argument for saying that what Congress had in mind, in effect, in confining the enforcement the way it seems to have done by this exclusive authority provision works in the general run of cases, and therefore there is not a good reason to say that Congress probably would have wanted this private right of action with the punitive damages.

Mr. Brinkmann: --I think it works generally, and then you look at the Blessing inquiry to see if Congress intended to create a right, they intended to create a right from all of those reasons I said.

Once you get there, it's clear, it's mandatory--

Mr. Roberts: But we're at the... we're beyond stage 1, 2, 3--

Mr. Brinkmann: --It's... yes.

Mr. Roberts: --and we're saying, okay, are there particular reasons to think that they did not.

Mr. Brinkmann: Then it's presumptively available, a section 1983 action.

It's not an implied cause of action.

Congress created 1983 and said, if you have a Federal right, you can enforce it in court.

It is against that presumption the petitioner has to carry the heavy burden that this Court has found met only twice, in the Sea Clammers case and Smith v. Robinson.

Mr. Roberts: Why isn't the theory of centralized administration, spelled out in the statute, with the Secretary's office doing this thing, why doesn't that overcome the presumption?

Mr. Brinkmann: Because the presumption has to be overcome by an enforcement scheme, an administrative scheme that supplants the section 1983 that has some address for a private remedy.

Mr. Roberts: Well, certainly it doesn't have to be a duplicate of section 1983, or there would be no point in saying it supplants it.

Mr. Brinkmann: Absolutely, Your Honor, but here there is absolutely no availability for any remedy for an individual injury, and Sea Clammers--

Mr. Roberts: Ms. Brink--

--Well now, wait a minute.

As I understand it, people who are aggrieved by some practice in the schools can get a hold of the Secretary's office and... by a phone call and perhaps by the Secretary's action in saying, either you fly right or we'll cut off funds, they do have a remedy.

Mr. Brinkmann: --Not under (b)(2)(A), if they have released records.

There's no provision for any kind of damages compensation for an individual, and the Court has looked at that role of the administrative scheme in its line of cases, deciding whether or not it was sufficient to supplant this congressionally created right under section 1983.

In the two cases--

Mr. Roberts: Ms. Brinkmann, can you give us one other example of a right that depends upon whether the person allegedly violating the right has done it before?

Mr. Brinkmann: --Yes, Your Honor.

Mr. Roberts: Or has a policy or practice of doing it?

For example, you know, your right to be free from unreasonable searches and seizures.

I suppose you're going to tell us about the Monell case.

Mr. Brinkmann: I was going to cite the Monell case.

I think that's--

Mr. Roberts: No, no, no.

Mr. Brinkmann: --exactly what the Monell case is about.

Mr. Roberts: That depends on whom you can sue.

That depends upon whom you can assert the right against, but against the individual you can assert that right, whether there's a policy or practice or not.

That's simply the question of whether you can reach the municipality, but I cannot think of a single other right in the world which only exists as a right when somebody is a two-time loser, or has a policy, or practice.

Mr. Brinkmann: Your Honor, a policy or practice may not have injured anyone in the past.

They may have a written policy in saying, we're going to release these things to--

Mr. Roberts: Maybe, but it's a very strange right.

I don't know of any--

Mr. Brinkmann: --This is the fact--

Mr. Roberts: --I mean, I have another rights question, too, but I... you're relying on the use of the right, of the term, right, in the statute.

What do you do... what do you conceive to be the... it's on the... it's on page 4a of the blue brief.

It refers to the privacy rights of students.

It says that no funds shall be available, blah, blah, blah, unless in accordance with regulations of the Secretary, the student or parents has a right to challenge the content of each student's education record in order to ensure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students.

Is that also the creation of a Federal privacy right?

Mr. Brinkmann: --I don't believe so, Your Honor.

I have to--

Mr. Roberts: Does it refer to existing State privacy rights, or just sort of a moral notion of what things should be kept private?

Mr. Brinkmann: --Well, I have to emphasize, our statutory argument about rights is not based solely on the 1232g(d) referenced rights.

It's based on the, unless there is consent from the parents, and on this particularized consent required, giving parents a copy, telling them to whom am I... that is what demonstrates under the Blessing standard it was intended to benefit parents and to address their specific needs to protect their children from information they have never been informed about, as in this case, that destroyed this person's career.

That's exactly what Congress was aiming at, and without... in petitioner's position there was absolutely nothing that anyone can do to protect that right.

The Department of Education cannot give individual relief, and this... anybody will be barred from going into court.

Fortunately, this doesn't happen.

It's simple.

Schools comply with it.

This is an exceptionally unusual and egregious case.

Mr. Roberts: Well, Ms. Brinkmann, there haven't been other cases where substantial monetary damages and punitive damages have been available, and maybe that's the concern.

I mean, it's... this is a person who did have a right.

There was a contract right, and there was the deformation, but by bringing 1983 into the picture, the damages are increased for the same conduct, and you can pick up 1988 counsel fees.

Mr. Brinkmann: It's not the same conduct, Your Honor, if I may.

First of all, deformation would not necessarily cover cases that involved truthful information, but in this particular case, if I could just make clear, what I think... first of all, this involved compensatory damages, just not punitive, but of course this Court's ruling will affect injunctive actions also, but in this case, because this information was released at the very outset of this investigation, it affected the school's decision about whether or not to issue an affidavit to my client.

There was disagreement... even as it stood, without any information from my client to say this was false, there was disagreement amongst the school officials about whether or not to issue this, and plaintiff's exhibit 28 has a chronology.

The people at the school who were in favor of releasing, of not giving the affidavit got State officials to contact the dean and--

Mr. Roberts: Thank you, Ms. Brinkmann.

Mr. Roberts, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR. ON BEHALF OF THE PETITIONERS

Mr. Roberts: Thank you, Your Honor.

Two statutes enacted within 2 years of each other: title IX, no person shall be subject to discrimination; FERPA, no funds shall be made available to an institution that has a policy or practice described in the statute, and the Secretary shall deal with violations, and the Secretary shall do that at one place, because we're worried about multiple interpretations causing confusion.

Now, that is two... those are two very different ways of approaching a problem.

Under this Court's precedents the former, the title IX model confers privately enforceable rights.

The latter does not.

Why would Congress proceed differently in dealing with educational institutions in those two different contexts?

Because of the appreciation that the regulation of student records from kindergarten through graduate school directly implicated pedagogical concerns.

It would have been a radical notion, even in 1974, for Congress to confer individual rights on every student from kindergarten to graduate school in a way that would directly implicate the day-to-day running of schools across the country, and there's no evidence to suggest that that's what Congress had in mind.

The evidence is the opposite.

It proceeded gingerly.

It said, this is directed to the Secretary.

It's directed to policies and practice.

Who's going to deal with violations?

Mr. Secretary, deal with violations, and do it in one place.

Four months after FERPA was enacted, in response to what was called by the sponsors the perplexity and frustration it had caused... four months... they added the second sentence to subsection (g) on page 12a of the blue brief, and that said, don't do any of this, Mr. Secretary, in any of the regional offices.

The reason?

We're afraid of multiple interpretation.

Well, multiple interpretations caused by regional offices, there's a slight problem there, are, after all, answerable to the Secretary.

Individual private plaintiffs suing in State and Federal court around the country, any one of these 62 million students covered by the Federal funds requirement, that would give rise to multiple interpretations, and it is implausible to suppose--

Mr. Roberts: They're answerable to us, presumably.

We could take care of all of that, right?

[Laughter]

Mr. Roberts: --Well, it is implausible to suppose that the same Congress that was so worried about multiple interpretations of the law from the regional offices of one Department would have been perfectly content and, in fact, intended to confer the right for every one of 62 million students to go into court in a 1983 action.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Roberts: Thank you, Your Honor.

Chief Justice Rehnquist: The case is submitted.

Attribution:

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Featured:

Board of Education v. Earls - Oral Argument

Fri, 09 Jan 2009 14:50:22 +0000

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Board of Education v. Earls

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01-332_20020319-argument.mp3

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Transcript:

ORAL ARGUMENT OF LINDA M. MEOLI ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in No. 00... oh, pardon me... 01-332, the Board of Education of Independent School District No. 92 of Pottawatomie County v. Lindsay Earls.

Ms. Meoli.

Meoli I guess.

Is... is that the correct pronunciation?

Mr. Meoli: Meoli.

Unidentified Justice: Meoli, okay.

The third time is the charm.

[Laughter]

Mr. Meoli: Mr. Chief Justice, and may it please the Court:

This case involves the constitutionality of the Tecumseh School Board's decision to implement a suspicionless drug testing policy for students in competitive activities as a reasonable response to student drug use.

Tecumseh's policy represents a natural, logical, and rational application of this Court's decision in Vernonia v. Acton.

Vernonia's policy applied to students who chose to participate in interscholastic athletics.

Tecumseh's policy applies as well to athletics, but also to all the other competitive activities that are offered by the district.

Respondents do not challenge the policy as applied to the athletics, conceding that this Court approved that practice in Vernonia.

Competitive--

Unidentified Justice: Well, this policy goes beyond what was permitted in Vernonia, does it not?

Mr. Meoli: --Well, it covers--

Unidentified Justice: It greatly expands the number of students covered by the policy.

Mr. Meoli: --It... it covers a wider variety of interscholastic competitive activities.

Unidentified Justice: And the evidence is not as strong, is it, in this case of drug use in the school as... as was the case in Vernonia?

Mr. Meoli: Well, Your Honor, we do not believe that is true.

Unidentified Justice: Well, if you go by the district court's findings, that's what you'd conclude.

Mr. Meoli: The district court in Vernonia?

Unidentified Justice: In this case.

Mr. Meoli: In this case.

No, Your Honor, I... I really don't think so.

I think there is ample evidence in the record to demonstrate a drug problem in Tecumseh.

Unidentified Justice: What do you--

--By the... by the young people who were involved in these particular extracurricular activities?

Mr. Meoli: Yes, we do have evidence of drug use with these students in extracurricular activities.

Unidentified Justice: Well, what do you make of the... the reports that have been filed up to the eve of the adoption of this regulation by the school district with the Feds, year after year after year, saying, things are fine here?

The only thing we have to worry about is some beer.

Were they lying?

Mr. Meoli: No, Your Honor, I don't think they were lying.

Number one, the district has always admitted that alcohol really is the number one problem in the school district, and that's what the applications for the Federal--

Unidentified Justice: Yes, but they were... they were saying at the same time that they didn't have a problem with... with what we usually refer to as drugs.

Mr. Meoli: --They said it... it wasn't a major problem at that time.

And... and I think if you compare--

Unidentified Justice: And... and in point of fact, as I understand it, since the testing has been carried out among the... the class of people subject to this challenge, there have been only three instances of any drug use found.

Mr. Meoli: --From the... from the drug testing?

Unidentified Justice: It would seem... it seems to me that your evidentiary problem is up to the eve of adopting the regulation, the school district was saying, we don't have a problem.

And once the regulation was, in fact, in... was... was placed into effect, you've gone for several years and you found three instances.

I... I don't see how you... you don't lose whether we look at it ex ante or ex post.

Mr. Meoli: Let me answer the second part first.

First of all, the... the policy was only in effect for a limited amount of time in the 2-year span of time.

It was implemented halfway into the first school year, and so a limited amount of students were covered in that first year.

The second year, the lawsuit was filed at the beginning of August, and therefore only a very limited number of initial testing was done before the district determined to hold the policy in abeyance.

There were four students in... under those limited amount of students that tested positive.

I know the court of appeals referred to three in one area, but that was just in the high school.

Unidentified Justice: But didn't one--

--Well, I suppose the existence of a policy might be expected to deter drug use so that you would have fewer instances after it was imposed.

Mr. Meoli: Yes, Your Honor, and... and in fact really--

Unidentified Justice: We will never know, will we?

Well, let her answer the question.

[Laughter]

Mr. Meoli: --Your Honor, in fact, it... it really did.

I... I mean, if you even take the limited amount of testing that we did in the 2-year period of time, the first year three students tested positive, the second year one student tested positive.

The only full year that the testing was applied in the Tecumseh School District was after the district court made its decision but before the court of appeals overruled it.

And that evidence is not in the record, but it was... there was a greater number of students that tested--

Unidentified Justice: Ms. Meoli, didn't we say in Vernonia that in Skinner, which was the railroad employee testing case, we did not demand that it be shown that the particular railroad had a drug problem?

Didn't we say it was enough that there was a nationwide problem?

Mr. Meoli: --Yes, Your Honor.

Unidentified Justice: We said that in Skinner, and we adverted to that in Vernonia.

Mr. Meoli: And... and Vernonia's evidence as well showed that there was not a specific drug problem among athletes.

Unidentified Justice: I thought the argument in Vernonia and I thought the opinion in Vernonia, in assessing the particular interest of the district, repeatedly emphasized the particular problems with the athletes.

The athletes were the ones that the kids looked up to.

They were the role models.

There was rampant drug use among the athletes.

There was a rampant disciplinary problem among the athletes.

Athletes were getting injured.

There was a very specific showing of a specific interest of the district.

And now you're coming in and saying, well, that... that really does not matter.

And it seems to me that the implication of what you're saying is that this so-called special needs requirement will apply to every child in every school in the United States.

Mr. Meoli: I'm not saying that, Your Honor.

I... I think there is a corollary--

Unidentified Justice: But isn't that the implication of what you're saying?

Mr. Meoli: --No, Your Honor, I don't.

For instance, you were talking about in Vernonia the athletes were looked up as role models.

Well, the athletes in interscholastic competition in Tecumseh are looked at as role models to some students--

Unidentified Justice: Except for one startling difference.

The... in... there was a problem with athletes.

Here, one thing that is clear in the record is the... the school board's admission that the... that the drug and alcohol problem is more of a problem with those who are not engaged in these extracurricular activities.

In other words, the testing is directed to a group, those engaged in competitive activities, that is less of a problem, as far as drug use is concerned, than the rest of the students who are idle.

And just naturally one would expect what turns out to be the case, that there's more drug use in the group that's not tested than there is in the group that's tested.

Mr. Meoli: --Well, Your Honor, we have never said that the... the students in interscholastic competitive activities are the only students or even the most likely students to be abusing drugs.

But the evidence that we have in the case demonstrate that they do abuse drugs.

Unidentified Justice: Well, I'm... I'm referring specifically to page 100 and 101 of the joint appendix where the question is whether the students who tend to be involved in drugs are the ones most likely to be choosing extracurricular activities.

And the answer ultimately is, we have students that are on drugs, and they are in extracurricular activities.

They are... they are... there are probably more that are not in activities.

Mr. Meoli: That was the testimony of the... of the board president, Dean Rogers.

There's also testimony of James Blue that said he really didn't find that difference between--

Unidentified Justice: Where is that testimony?

Mr. Meoli: --I think it is at page 106, Your Honor.

Page 106.

Now, national studies show that band, vocal and non-athletic extracurricular activities students, they are the least likely of all students to use drugs.

Would you agree that this same... the same thing would hold true for Tecumseh High School students?

The answer was, no, I would not.

Unidentified Justice: He had no basis for saying yes or no.

Mr. Meoli: Well, yes, he... he says that initially, and then he goes on to say, I just know that all age levels, all categories... if we're categorizing the students that frequent the park.

This part of the deposition was referring to this--

Unidentified Justice: Yes, but he's not saying, as was the case in Vernonia, that here is a group that we can identify that has this problem.

Either there's no particular problem with this group as opposed to all students... so, my question is if... if you can, on the absence of any special showing with respect to this extracurricular group, then it seems to me that your argument is really that all students can be tested.

I mean, there was a special circumstance with the athletes in Vernonia.

Your argument for these extracurricular people I think would hold as well for... for all the students because there's no more of a problem and probably less among those engaged in extracurricular activities than the... than among the students that don't do anything after school.

Mr. Meoli: --Your Honor, the use of... of drugs among the students in competitive activities was just one of the factors as to why the Tecumseh board selected that group.

I really do think that, in fact, the... at the meeting that the school district held for the community to give input, they asked that same question, why can't we drug test all students?

And I think there's a couple of reasons as to why you can't.

One of the reasons I think is because students in general have a property right in their education.

Hence, they have a legal entitlement to a free public education.

Secondly, the State compels them to be there, and parents, if they do not send their... their children to school, face criminal prosecution.

So... so they are there.

And I don't think that you can fashion a drug testing policy that could have the kind of consequences that would deny them that opportunity or... or prevent parents from being persecuted for not--

Unidentified Justice: Well, if you want--

--You don't... you don't have to go that far, do you, in order to... in order to justify limiting it to those who participate in... in voluntary activities?

Mr. Meoli: --No, Your Honor.

We... we--

Unidentified Justice: It seems to me you could say even if we could drug test anybody, we made the choice of giving a student who feels that strongly about not undergoing drug testing the ability to avoid it by simply not engaging in the extracurricular activities.

You don't have to forego going to school entirely or go to a private school.

You can simply not participate in extracurricular activity.

Isn't that in itself a valid reason for limiting it to extracurricular activities?

Mr. Meoli: --Yes.

Yes, Your Honor.

I--

Unidentified Justice: It's an equally valid argument... I... I suppose an equally valid argument would... for... for testing everybody would be our object is to stop drug use, not to penalize people who go out for band.

And there's some evidence in this record that there is more drug use about the... among the people who are not going out for extracurricular activities, but among those who do.

And therefore, if your argument is good for this case, it seems to me your argument, a fortiori, is good for testing everybody in the school.

Mr. Meoli: --Your Honor, the... the purpose of this program is not to discipline students.

It's not to catch them.

It is to deter drug use and to help those students--

Unidentified Justice: Don't you want to deter drug use among those who do not go out for band?

Mr. Meoli: --Yes, Your Honor, I... I believe we do.

Unidentified Justice: Then why isn't the argument good that you can test everybody?

Mr. Meoli: Well, number one, I... I think there is a deterrent effect for implementing this program among the student... general student body.

If they want to--

Unidentified Justice: Well, I think... go ahead.

Mr. Meoli: --If they want to try out or... or audition for one of those competitive activities, they know in advance that one of the regulations is to be subjected to drug testing.

Unidentified Justice: No, but with respect, what you're arguing is... is a justification for the present policy that you've got, and I understand your position there.

What I'm interested in and Justice Ginsburg was a moment ago is it seems to me that if... if we take your argument and we take the evidence that is indicated on the record, there is at least an equally good argument for testing everybody in the school, whether they go out for band or whatnot or... or do not.

And... and isn't that the case?

That's what we're interested in.

Mr. Meoli: Well, I think there is a reasonably good argument for that.

We're not espousing that, but I think--

Unidentified Justice: No, I realize--

Mr. Meoli: --even though... even... even if we utilize the balancing test that was utilized in Vernonia, I... I think there is a really good argument--

Unidentified Justice: --But if we get to that point, then the whole notion of special need has... has, more or less, evaporated.

We don't have the kind of special safety need as... as in the railroad case.

We don't have the unusual temptation to crime need as in the immigration case, and the special need is simply the need to deter drug use among all children in all schools of the United States.

And... and if the... if the theory of this is special need, it seems to me that the concept of special need seems to have gotten lost.

I suppose the distinction that you draw is based on the fact that you have a sanction for the people that you apply it to.

You can tell them you cannot participate in extracurricular activities.

But as... if you applied it to the whole school board... to the whole school population, rather, you couldn't sanction them by saying you cannot come to school.

Mr. Meoli: --Exactly, Your Honor, and... and that really is our position because we have to educate the--

Unidentified Justice: But you could say--

--And the only sanction you impose is you just can't play in the band or... or cheerlead or whatever it is they want to do.

Mr. Meoli: --You can... you can remain in the class.

Unidentified Justice: So, you have a special burden if you want to engage in extracurricular activities.

Mr. Meoli: Yes, Your Honor.

Unidentified Justice: Or how about taking elective classes, classes that the State doesn't require you to take, but some students might like to take?

Mr. Meoli: Well, Your Honor, we have to draw a line somewhere, and... and even though elective classes are a choice--

Unidentified Justice: Well, I wondered what... the line that you would draw as a question of the school's policy, but you were saying at least you see a problem with testing everyone because people are compelled to go to school and... so that's why you resisted drawing the line there.

My question is if you're doing a voluntary, then why don't you say as well, you volunteer for... you're taking a certain course, this is an elective course.

Same thing.

Mr. Meoli: --Well... well, elective courses are really mandatory, Your Honor, in many cases.

I mean, you have your core curriculum that are required for graduation, and you also have your electives.

You need 24 credits in order to graduate from high school.

18 of them have to be in the core subjects.

The rest of them are electives.

But those are required.

Unidentified Justice: Except for that, it would be a good idea, though, wouldn't it?

[Laughter]

Mr. Meoli: Yes, Your Honor.

I... I think if... if we could fashion--

Unidentified Justice: That's what I thought you'd say.

Mr. Meoli: --If we could fashion a way to do it, I believe the majority of school boards would be behind it.

But... but at the state of the constitutions of... of the 50 States and the states of the compulsory education laws that all the States have, I... I don't think that is possible.

So, if a line is going to be drawn, I think the line can be drawn between the students in the general school population and students in extracurricular--

Unidentified Justice: May I ask?

Is there any other sanction other than... other than ineligibility for extracurricular activities?

Is there any other sanction imposed on a student who is found to have been using drugs?

Mr. Meoli: --No... no, Your Honor, and in fact, that only happens in this policy under the third time--

Unidentified Justice: So, really the student could say, well, the worst... if I go out for extracurricular activities and get caught, it'll be back where if I had gone out at all.

[Laughter]

He gets back to square one.

Mr. Meoli: --Well, I think... I think children who engage in these activities really want to compete.

I mean, they are really interested in what they are doing.

So, they don't want to get caught.

And it's also a... a way for these students to say no.

Peer pressure among elementary and secondary school children is... is very significant, and--

Unidentified Justice: Could you, for that reason, adopt as a... as one of our sanctions or a supplementary sanction simply publicity that the person has been caught?

Anybody who fails the drug test will have his name and photograph posted on the bulletin board.

Would that be... would that be constitutional too?

I presume it would be under your theory.

Mr. Meoli: --I... I think it would be very cruel, Your Honor.

As... as to whether--

Unidentified Justice: It would get the job done.

Mr. Meoli: --as to whether it is constitutional or not... we're... we're not in... in the job of disciplining students.

And... and we seem to be going into that realm more and more.

This program... we don't want to put an A on them or a big substance abuse on them.

What we really want to do is help those students.

And it may be constitutional to do that, but that's not what we are asking this Court to do.

We're just asking you to give us the tools to deter drug use, to help those drug users.

And... and if there are no other questions--

Unidentified Justice: Very well, Ms. Meoli.

Mr. Meoli: --my time.

Unidentified Justice: Mr. Clement.

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Clement: Mr. Chief Justice, and may it please the Court:

A school district that reasonably concludes that it faces a drug problem may adopt random drug tests for students engaged in competitive extracurricular activities without violating the Constitution.

Unidentified Justice: Suppose you've had hard statistical evidence to show that the kids that go out for the extracurricular activities are the ones that really do not use drugs, that the high drug user population is in those that don't engage in the activities.

What... what would your recommendation be to the school board at that point?

Mr. Clement: I think in a case like that, it still might be appropriate for the school district to test the students involved in extracurricular activities, and I think that is because, as this Court has emphasized on a number of occasions, by making the... the testing program applicable only to an avoidable activity, the... the school district would be ensuring the reasonableness of the program under the Fourth Amendment.

Unidentified Justice: But there's some... we... we had an amicus brief by some... a pediatrics association and so forth that pointed out that students that engage in these extracurricular activities are, indeed, the least likely to be involved in drug use.

And it seems so odd to try to penalize those students and leave untested the students that are most apt to be engaged in the problem.

Mr. Clement: Well--

Unidentified Justice: It's just... it's so counterintuitive, isn't it?

Mr. Clement: --A couple of points in response to that, Justice O'Connor.

First, there's contrary evidence as well, and the petitioners in their reply brief point to some evidentiary studies that showed that really drug use is distributed evenly across all groups in the student... in the student population.

The second thing I would add is that as... as I was noting in answer to Justice Kennedy's question, there is a sense, and which the majority and Justice Ginsburg in... in Vernonia emphasized, that by making the program only applicable to activities that are avoidable, you... you limit Fourth Amendment difficulties.

You make the program more reasonable.

And as Justice Stevens pointed out, you also avoid any difficult questions that might be occasioned by the consequences of a drug testing program that applies to school-wide.

Unidentified Justice: Well, this in the face of a school district that is certifying to the Federal Government they don't have a drug problem.

I mean, the whole thing is absolutely odd.

Mr. Clement: Well, I don't think it's that odd, Justice O'Connor.

First of all, in terms of the certifications, I would direct you to footnote 23 of the district court opinion.

And the district court found in that footnote that what those reports really emphasized are the relative natures of the problem.

Alcohol was the major problem they faced, but in each one of those... those reports, they note that they do have a drug problem.

Unidentified Justice: Well, if alcohol is the problem, why don't they address that?

This is just... I mean, it's structured in a way to do very little good it seems to me.

Mr. Clement, do you think any school in the country doesn't have a drug problem?

Mr. Clement: I would be surprised to find a school district that didn't.

The national figures on... on the... the amount of drug use are really staggering.

As we note in our brief, over half of all 12th graders have tried illegal drugs by the time they graduate from high school.

So, I really think that, you know, if anything, the burden ought to shift in these cases to the other side to show that this one school district is the one school district--

Unidentified Justice: Can... can you tell me--

--In both Skinner and Von Raab, we imposed or we permitted the imposition of drug testing on the basis of a nationwide problem, didn't we, without... without showing that the particular entity in question shared in that national problem?

Mr. Clement: --That's correct, Justice Scalia.

And I would also point out I'm not sure you want to put school districts in the business of trying... when they... when they find some incidental evidence of drug use, to try to pin it down to the exact extracurricular groups involved.

If a student comes in--

Unidentified Justice: Well, do--

Mr. Clement: --for some sort of anonymous drug counseling, I'm not sure they want to ask him what groups are you in.

Unidentified Justice: --May I ask?

What is your view on... on the validity of a... a school-wide drug testing program?

Mr. Clement: Justice Stevens, we think such a program would be constitutional, but we think the program at issue here--

Unidentified Justice: So, you would differ from the petitioners then.

Mr. Clement: --We... we do have that difference, but we think a program like this is constitutional for three reasons.

One, extracurricular students agree to additional intrusions on their privacy and have additional safety risks.

Second, as--

Unidentified Justice: No.

But you say they agree to it.

They agree to it only under the circumstances that if they don't agree to it, they can't engage in any of these activities.

They know perfectly well they'll never get into a competitive college if they don't.

And the... the agreement is not simply something that is... is arrived at sort of in the abstract.

There's... there's tremendous pressure on them to agree to it.

Mr. Clement: --Two points, Justice Souter.

First, we're not suggesting this is... this is constitutional because it's consensual.

I think Justice Kennedy, in... in his separate opinion in the Ferguson case, pointed out that in these special needs contexts, there's an element of voluntariness which is important to the constitutional analysis, even if it's not voluntary in the full sense of the word.

This... a second and related point about that, though, is that these are avoidable programs, and I think that makes the important difference.

And again, as I noted earlier, because they're... they're avoidable in that sense, it avoids any difficult questions with the consequences that a positive test might generate.

Unidentified Justice: But it doesn't--

--May I ask you a question that... that is... concern... concerns me about the difference between this case and Vernonia?

If we... if we look at what people might expect in the real world, where people know that athletes, professional athletes, Olympic athletes, athletes are tested for drugs, but people who are just everyday people aren't.

So, Vernonia could be regarded as all the students who are athletes... they will be treated as athletes are generally.

But that's not true of the... the large population of high school students.

Mr. Clement: Well, I mean, I... I think one fact is that I think it is increasingly becoming true that... that these sorts of policies are in society as a whole.

And one of the petitioners in this case who... who didn't wanted to be drug tested at school had to go get drug tested for the job at the Kmart, at the McDonald's.

And I do think that probably does have some influence on the reasonable expectations of privacy in this area.

But I also think that it really doesn't make a lot of sense to draw a line on... on sports, and even within sports, of course, there are differences.

The Vernonia policy applied to golfers, as well as football players.

Now, I'm not aware that golfers, as a general matter, are tested for substance abuse even on the PGA Tour.

I could be wrong about that, but the point is there are differences in the risks even among the athletes, and I think this Court in Vernonia didn't make anything turn on those differences.

The dissent in Vernonia pointed out that there wasn't any evidence of drug use at the grade school in the 7th and 8th grade, and that the evidence really wasn't an evidence of a disciplinary problem that was specific to student athletes.

And the majority in Vernonia did not... was not... was not moved by those two points.

The majority said that the evidence was good enough in these contexts.

And I think this is an area where deference to the local school boards in their determinations about the nature of the problem, the nature of the solution, and particularly the particular students that are going to be tested is quite appropriate.

It's important to recognize--

Unidentified Justice: But you would make... you would make... and I think you've said this... the same argument if they had decided to have a universal drug testing policy in the school.

Mr. Clement: --I would, Justice Souter.

I do... as I said, I think it's a more difficult question.

And I think the most difficult problem with a school-wide test is what Justice Stevens pointed out, and that would be what are the consequences of a positive test.

But if you imagine a school district that... that faced... reasonably concluded it faced a serious problem and instituted a drug test where the only ramification of a positive drug test was a confidential notification of the parents, I don't see why that test would violate Fourth Amendment reasonableness.

Unidentified Justice: But at that point, I... the so-called special need has become virtually a universal need.

Mr. Clement: I would like to say two things in response to that.

First, in Vernonia itself, this Court didn't identify the special need as being the drug problem.

This Court identified the special need as being the school setting, and that's consistent with this Court's decision in T.L.O.--

Unidentified Justice: And... and the special need would be a universal need in every school in the United States.

Mr. Clement: --I... I do think it would properly recognize that the school context is different, and that school boards have a freer hand in testing their students than the Government has testing either employees or its citizens at large.

Unidentified Justice: But if... if that is the case, what is the danger in the school case, comparable to the... to the railroad worker's danger or the... the customs officer's danger?

What is the danger as distinct from simply the desire to deter illegal drug use?

Mr. Clement: I think the danger is this.

I mean, it... and I think Von Raab actually is... is an excellent counterpoint.

This Court in Von Raab said that you could test the customs official because they are on the front line of the drug problems on the supply side.

I think by parity of reasoning, children today are on the front lines of the drug problem, but on the demand side.

The evidence shows that if you can stop children from using drugs before their 18th birthday, they're not likely to start using drugs after that--

Unidentified Justice: But if--

--The danger is getting young people used to a drug culture.

You're raising young people in school.

And the... the specific danger is unlike with adults.

You're forming... you're forming their habits for the rest of their life.

Mr. Clement: --I agree with that, Justice Scalia, and I would... I would add that this is not the only context where... where the Federal Government has recognized that difference.

The penalties for dealing drugs in a school area or selling drugs to a minor are much more substantial than those selling drugs to adults.

Unidentified Justice: I think that's hardly a revelation that the Government is concerned about what drugs do to our culture.

Mr. Clement: Absolutely, and I think it's perfectly--

Unidentified Justice: It's not exactly rocket science, is it?

Mr. Clement: --No, and... and I don't think it's rocket science also to say that that... that concern is particularly acute with respect to the youngest and most vulnerable members of society.

And as I say, if you look at 21 U.S.C. 859, 860, 861, all of those provisions put added penalties on someone who deals drugs involving children.

Thank you.

Unidentified Justice: Thank you, Mr. Clement.

Mr. Boyd, we'll hear from you.

ORAL ARGUMENT OF GRAHAM A. BOYD ON BEHALF OF THE RESPONDENTS

Mr. Boyd: Mr. Chief Justice, and may it please the Court:

Opposing counsel said we have to draw the line somewhere, and the... the way to draw the line in this case is to keep in mind the core principle that individualized reasonable suspicion is the standard for school searches set forth in T.L.O. If there's going to be a line as to where do we go past that standard, while still retaining the core of T.L.O.--

Unidentified Justice: There was no individualized suspicion in Vernonia.

Mr. Boyd: --There... there was not, and Vernonia is the exception.

Unidentified Justice: Well, so... so there goes your principle.

Mr. Boyd: Vernonia is the exception to the T.L.O. rule.

It didn't... it did not overrule T.L.O. What Vernonia said is that in certain special circumstances, that rule would be set aside.

The key--

Unidentified Justice: You can have medical... metal detectors in schools where they're afraid the children have guns?

Mr. Boyd: --Yes, they can.

Unidentified Justice: Now, there's no individualized suspicion there, is there?

Mr. Boyd: No, there's not, and the reason--

Unidentified Justice: Can we take throat swabs if you feel that there is a contagious disease?

Mr. Boyd: --Throat swabs if you think there's a contagious disease.

I'm not--

Unidentified Justice: I was trying to... well, that's what I... I raised that because, of course, everyone is making a criminal analogy, but nobody is arrested here.

Mr. Boyd: --Well--

Unidentified Justice: Nobody is arrested.

This is counseling.

It's an effort to deal with the demand side of drugs, and... and I just wonder.

That's why I'm... I'm raising, right at the beginning, the question of whether this individualized suspicion is the correct model to apply.

Mr. Boyd: --Well, unless the Court stands ready to overrule T.L.O., I believe it is the standard.

I think what's behind your question, Justice Breyer, is... is a question about intrusiveness of the search.

Obviously, there is a difference between the passive--

Unidentified Justice: Well, I mean, it's absolutely clear there isn't individualized suspicion, so you win automatically if that's the test, I would think.

Mr. Boyd: --Well--

Unidentified Justice: And, of course, it wasn't in Vernonia.

I would think it wouldn't be in certain instances in the school like guns.

And so, rather than just start off, as you did, assuming that that's it, I'd like to hear some argument for it.

Mr. Boyd: --Of... of course.

Let... let me try to set up what... what I see as... as basically how you move from the general rule of T.L.O. to the exception of Vernonia.

In order to set aside that core Fourth Amendment principle, I think there has to be some nexus to a problem, some connection that is demonstrated to a problem either, and preferably both, in terms of safety and drug use.

Both of those are missing here.

The reason this school expanded its initial policy from athletes to include non-athletes was because it wanted to appear evenhanded.

Now, that's not a value that this Court has recognized in the... in the special needs context.

They didn't want to stigmatize the athletes alone through the drug test, so they said, who else can we get?

Their lawyers said, well, the Seventh Circuit said you can get the non-athletes, and so they expanded it.

But let's look at the safety rationale here.

Now, in Vernonia, the school board said up front, this is about the safety of our athletes, and that's why we're doing it.

In this case, the school board's testimony and the testimony of everyone else who has been... who's... who's testified is that safety is not a reason for this test.

There is nothing about the band or the choir that is dangerous.

And this is a very important too that we did not make in our briefs I want to bring out.

In Vernonia, the drug test was for in-season athletic activities.

While you're playing football, you're drug tested.

They were concerned about that.

In this case, they test year in, year out.

If you look at page 198 of the joint appendix, the policy itself says it is in season and out season.

So, there's nothing about the activities of Lindsay Earls in the choir, who's here today, not a drug user... there's nothing about her activities in the choir that requires her being drug tested.

Unidentified Justice: But the choir is presumably a year-round thing in a way that football is not.

Mr. Boyd: No, it's not, Your Honor.

All of these activities have competitive seasons, and the competition is what triggers the drug testing.

It's quite clear that in the academic team, choir, band, all of these activities, they are participating at a certain point, and yet they are drug tested throughout the year.

Unidentified Justice: Are you saying that, for instance, choir in Tecumseh is only in the fall?

Mr. Boyd: The--

Unidentified Justice: Or only in the winter or only in the spring?

Mr. Boyd: --Yes, Your Honor, in terms of the competitions, they are.

There's a class which... which they are very clear, it is not the reason that drug testing takes place, and someone who's merely in the class is not drug tested.

But if you go out for the team, as it were, which competes during a limited season, then you are drug tested, although it is for the entire year.

So, again, it's not the activities of the choir competition that are of concern to the school.

Unidentified Justice: Well, give me the quote.

Which season of the four seasons is for band in Tecumseh?

Mr. Boyd: I honestly don't know what months of the year they compete in, and... and in rebuttal, if I'm wrong, I'm--

Unidentified Justice: They can't be for all four seasons, I guess.

But--

Mr. Boyd: --Excuse me?

Unidentified Justice: --let me... let me ask you this.

What... what they're... what they're trying to do is to find a basis on which they can implement a program which has an element of consent to it.

The Government does not think that's necessary, but that's the case that we have before us.

And so, what the school district has done has taken a set of programs and they said, this is a surrogate for consent, and that's what's happening here.

This... I... I think this goes beyond Vernonia.

Mr. Boyd: Right.

Unidentified Justice: But we take cases as they come to us, and in this case, it is clear that the student who is... is so offended by the idea of a search and does not care about the school district's policy of ensuring that drugs are school-free doesn't need to participate in the extracurricular activity.

That's their choice.

Mr. Boyd: Well, Justice Kennedy, you're absolutely right.

That's the position here.

And frankly, I think that's what it comes down to for them.

They don't have the safety rationale.

They don't have the drug use rationale.

And... and I would actually point to the... to your concurrence in the Ferguson case where you... where you, albeit briefly, survey the special needs in drug testing jurisprudence and point out that in all of those cases, the activity was, in a sense, consensual or voluntary.

I mean, this goes back to Justice Scalia's question in... in the initial round, too.

If you want to drive a train, if you want to be a customs agent, if you want to be a football player in Vernonia, if you want to run for office in Chandler, these are all activities which you're perfectly free to not do.

Now, maybe that weighs into the balance, the constitutional reasonableness balance, somewhat but it certainly is not dispositive.

And when that's all you have, when there isn't the history of drug use, when there isn't a safety rationale, when all you have is this, then it's nothing.

Now, I think also I need to--

Unidentified Justice: It... it seems to me if a school is better than other school districts insofar as drug use, they have less drug use, that they're maybe entitled to keep it that way.

Mr. Boyd: --Well--

Unidentified Justice: You seem to say not.

You seem to say there has to be some great crisis where we lose a couple years of kids to drugs, and then we... and then we move.

National statistics just don't support that.

Mr. Boyd: --Well, there... there are a couple of things.

I mean, first of all, the... the crisis nationally of drug abuse is one that certainly we need to be concerned about, and I think Justice O'Connor is right to point out that the pediatricians, along with the public health social workers and teachers, all say that this policy of setting up barriers for extracurricular activities is actually counterproductive.

It promotes drug use and other dangerous activities.

But let me get to precisely the question that you're asking, too.

This is a school that has in place cameras in the halls, security guards, drug dogs that sweep through the school and the... and the parking lot and the students.

They search lockers.

They have teachers who are trained in looking for drug use.

They have all of these things in place, and they have a mandatory reporting policy that if they discover any drug use, they have to report it.

Now, over the years, that's added up to two instances of drugs being found, none of them associated with non-athletes, none of them associated with extracurricular activities.

Unidentified Justice: Yes, but they have a record here that, of course, suggests if you want to know if drugs are going on in your school, you ask the kids.

You don't find them because nobody is stupid enough to take them into the school.

But it's all around and they use them.

And here they ask the kids, and the teachers ask the kids, and they say, sure, there's a lot of drug use going on over in the park, at parties.

That's the record that I saw.

Mr. Boyd: Well--

Unidentified Justice: And I don't really see how that... I mean, you know, you might be able to drive a millimeter of light between that and Vernonia.

Mr. Boyd: --Well--

Unidentified Justice: So, go ahead and try.

But I... I can't--

[Laughter]

I mean, I... I... they did what I would have done.

I would have asked my children what's really going on in this school, and they get a positive response when it's a question of drugs.

Mr. Boyd: --Justice Breyer, I... I think you're right.

I'm going to go ahead and try.

But I think there's... I think there's an important distinction here.

What the kids said in this case is, to the extent there's drug use going on, who's doing it?

It's not the choir and the band and so forth.

And I think that that's critical.

I think that the jurisprudence of this Court in looking at when do you set aside individualized suspicion, it says there has to be that connection between--

Unidentified Justice: Why?

Now, I--

Mr. Boyd: --Why.

Unidentified Justice: --Of course, if I read the cases, as I do, and they logically require you to win, that's the end.

You win.

Mr. Boyd: Sure.

Unidentified Justice: But just in case it's open--

[Laughter]

--I would like to know why.

I take it they've given you some reasons why they've limited it.

One, these are the school leaders and maybe it'll spread.

Mr. Boyd: Sure.

Unidentified Justice: Two, we don't want to put the student, although we'd really like to, to the choice of school versus drug testing.

We'll put him to the choice of extracurricular versus drug testing.

It's a little bit better.

Okay.

That's their reason.

Now, what do you say?

Mr. Boyd: Well, I... I mean, I think what's perhaps behind your question is a little bit of what's the law and why is the law that way and a little bit of why the policy--

Unidentified Justice: I'll tell you what's behind the question.

What's behind the question is that I think undoubtedly you're right, that this is a slight expansion of Vernonia.

You want to say a lot.

They'll say hardly any.

So, it's hard for me to see why, if I came out one way in Vernonia, I'd come out differently here.

And that's what I want you to--

Mr. Boyd: --Okay, fair enough.

I... I think the question is where do you want to put your focus.

If your focus is solely on is there evidence of drug use in the high school alone, then the difference here I think is still very important.

In Vernonia, you had athletes who were skipping class and being arrested.

You had people smoking marijuana across the street in plain view.

You've got none of that here.

I think there is that difference.

But I think that also I would ask you to focus somewhere different than what is the overall general problem.

I would say that if you take seriously the idea of the nexus, or connection, being there in order to take what is a serious step from individualized suspicion to blanket intrusive search, I would say you have to look at what are the reasons for picking this group.

Is it simply to be fair to the athletes where a problem may exist, or is it... which is the case here, or is it because there's a problem here, which is certainly not the case here.

And there's another difference too, Justice Breyer, which I think is absolutely critical.

In Vernonia, that was a school where discipline was out of control.

Discipline throughout the school jurisprudence of this Court has been a critical factor.

In Vernonia, it was a school that said, quote, we don't have a major drug problem for many years, just like this school.

But then in the space of 2 or 3 years, they said, discipline referrals have increased by almost threefold.

Teachers are threatening to quit.

We're thinking about mass expulsion of the students.

We can't keep control of this school.

Now, if you look what this school has said, by contrast, let me refer you to the joint appendix.

In their Federal reports, they say... now, I'm not talking about the drug use here.

I'm talking about discipline.

They say on page 192, minimal problems have been experienced due to violent safety and discipline problems.

That's right in the middle.

And in the very last sentence on that page--

Unidentified Justice: --I don't understand the point of this argument, counsel.

I mean, is... is the only reason schools want to prevent drug use is that they have unruly classrooms when they have drug use?

I should think that is the least of the reasons to prevent drug use.

Mr. Boyd: --Well, it--

Unidentified Justice: And... and what I miss in your argument is any recognition of the fact that we are dealing here with minors.

I mean, you're talking here about a search rather than a seizure, but in the case of minors, you can keep them, in effect, imprisoned after school, can you not, if they haven't done their homework or something else?

The school is standing in loco parentis.

It is trying to train and raise these young people to be responsible adults.

And I think that... it's a... it's a world of difference from... from what... from what the State can do with regard to adults.

Mr. Boyd: --Let... let me... let me do two things, if I may, Justice Scalia.

Let me just quote the last sentence of what I was about to say and then I... and then, if I may have your permission to address the in loco parentis argument, because there's a good answer to that.

In terms of the discipline argument, Justice Breyer, what the school said is we don't have that problem, and in the last sentence, the discipline policies in place at each site have been effective in dealing with the problems.

So, I think if one of the things, maybe not the only thing, Justice Scalia, but if one of the things we care about is can the kids learn here, is this a school environment that is conducive to learning and safety and discipline, Tecumseh High School has that in hand with their cameras and guards and dogs and everything else.

They don't need this policy.

Especially they don't need it for Lindsay Earls.

I mean, if they want to voluntarily test all the students, they apparently will get many of them, but why should we force Lindsay Earls to... to give up her privacy as part of that?

Unidentified Justice: You're willing to rest your case on the proposition that the only valid basis for conducting drug searches is to... is to enable the school to maintain discipline.

Mr. Boyd: No, no.

Unidentified Justice: So long as you have a bunch a druggies who are orderly in class, the school can take no action.

Is... is that what you want us to--

Mr. Boyd: Absolutely not.

Given that we have here a school that has not only discipline in hand, but also drug use itself in hand, especially among these activities, which themselves aren't dangerous, it seems it adds up to me the mirror image of Vernonia.

But let me address your point, Justice Scalia, about in loco parentis.

Unidentified Justice: --Except for one point that was made in Vernonia, and it does go across the board, and that was the statement that drug testing on suspicion, which is the alternative, because in life, it's everything as compared to what.

So, if we didn't have the... the random testing, it would be on individual suspicion.

And the point was made there that if you had... if you treated the children that way, you would transform this random process into what the opinion author called a badge of shame, and that it might be worse the risk of singling out the troublesome, but not drug likely student, the one that the teacher... the one that's always the bad boy in the class and diverts the teachers--

Mr. Boyd: Right.

Unidentified Justice: --who are engaged in that exercise from the job of teaching to being a police officer.

Mr. Boyd: Justice Ginsburg, there's a good answer to that question.

Let me focus on the facts of this case, as they come to this Court.

This is a school that already has not had this problem of pointing the finger of... of accusation at students, although it could do that with its drug dogs and locker searches and everything else.

When it gets a student for whom there is some suspicion of drug use, say, a... a drug dog hits on a student who could easily have had dad's beer spilled on the... on the sleeve.

That will make a drug dog alert.

That student is then questioned.

That already happens in this school.

But there's also a key point that I think was missed in that... in that discussion in Vernonia, which is that even if... whichever way you rule in this case, suspicion-based drug testing can and will go forward in this and many other schools.

So, even if you have a blanket policy, if there is, say, some malicious teacher out there who wants to... to pick out Johnny because Johnny is acting bad and... and put that badge of shame on him, she or he can certainly do that.

I don't think that that is a reason to go ahead with the policy that doesn't have a basis in the safety, discipline, or drug use rationales.

Now, Justice Scalia, I'm feeling like I'm not getting to the in loco parentis question, and I do because the... the short answer is, I believe the brief by the parents, the amicus brief... Jean Burkett is the lead one... really engages this question in a very vigorous and intelligent manner.

And what they say is this.

In loco parentis is a doctrine that does not say the school is the parent, can take over from the parent.

The parent still retains certain roles, and the parents in this community... a good number of the parents in this community say I want to raise my kid and I've succeeded so far in raising my kid by having open communication where they can come to me and talk and we will... and we will have that trust there.

The school has interfered with that relationship by forcing me, the parent, to sign off on this drug test, which is a different way of raising kids.

Unidentified Justice: Well, but the in loco parentis argument works against you there too because in loco parentis also indicates that all children are forced to go to this school.

Mr. Boyd: Yes.

Unidentified Justice: And we have to accept that a majority of the parents want to make sure that those children are in a drug-free atmosphere.

Mr. Boyd: In--

Unidentified Justice: And they have... they... you seem to me to be disparaging about police dogs and locker searches, and maybe that's what you're going to challenge next.

But what the... what... what the school board has said is that this is a necessary and effective policy, and that's... that's all it said.

Mr. Boyd: --Justice--

Unidentified Justice: And there are rights of other children who want to go to a school which is drug-free, if they can.

Mr. Boyd: --Absolutely, Justice Kennedy.

Unidentified Justice: And it seems to me that's part of in loco parentis too because those students are required to go the school just as... as the drug user is.

Mr. Boyd: You're absolutely right about that, and please don't hear me to be disparaging of those other tools because those are tools that do not include a blanket intrusive search, which is the principle that's at issue here.

And I actually applaud this school for being--

Unidentified Justice: Well, why does it make difference why you applaud it or not?

Mr. Boyd: --Oh, it probably doesn't.

It probably doesn't.

Unidentified Justice: We're talking about a constitutional question.

Mr. Boyd: It... it does.

But... but the point I'm trying to make is that... is that these other tools, which they have the legal right to use, are being used successfully.

In loco parentis I think comes into play when you have a school like Vernonia where, as... as you put it, Justice Kennedy, the rights of the other students, their ability to get an education and to themselves stay drug-free is being interfered with.

Now, if we were talking about the Vernonia school--

Unidentified Justice: Are you saying that the in loco parentis principle does not apply in the case of a school if a minority of parents object to what the school is doing?

Mr. Boyd: --That's not my position.

Unidentified Justice: Well, I thought that was what you were saying a moment ago?

Mr. Boyd: Let... let me please try to be more clear about that.

It depends on what the issue is and what's happening in the school.

When there is an issue of school discipline, say, in the Fraser case or the Hazelwood case, where you had student conduct that was in a sense... well, certainly had... had a element of connection to constitutional protection, but yet affected the rights of other students to be able to learn in that environment, then--

Unidentified Justice: Well, how did... how does Hazelwood fit that description?

Mr. Boyd: --Well, because of the disruption that could be caused by the... by the school paper articles.

My... my point is that where disruption--

Unidentified Justice: I don't think the reason in Hazelwood was... where the discipline was justified was... caused disruption, but because when you're learning in school, you follow the instructions of the teacher.

Mr. Boyd: --Well, and also the form issue.

I mean, I... I think that's certainly there and I don't... I... I brought this upon myself by bringing up the case, but I hope--

Unidentified Justice: You did, yes.

[Laughter]

Mr. Boyd: --I did.

I did.

I did and I apologize for that.

But my point is that the in loco parentis doctrine more broadly comes into play when the rights of the student who says, I want to... or the minority comes into conflict with... with the environment of the school of learning and discipline.

And that's... that was the case in Vernonia.

That's not the case here.

And it's certainly not the case if you think of it in terms of the rights of the student--

Unidentified Justice: Now, say again why you... you think the Vernonia situation, with respect to this point, is different than the Tecumseh.

Mr. Boyd: --Sure.

It's... it's really the point I was making to Justice Breyer about discipline in the school.

Vernonia had convincingly shown and the district court found that there was a discipline problem that was out of control that was directly tied to drug use by athletes.

They wanted to address this problem by going after the thing that was connected to it.

Now, this is a school that doesn't have any of that.

It doesn't have the discipline problem.

It doesn't have the drug use.

Unidentified Justice: Well, but that... that question has been batted back and forth... you're... you're not saying, are you, that unless the school has the sort of discipline problem they had in Vernonia, it can't do this?

Mr. Boyd: No, I'm not.

No, I'm not, although I think that when you have neither a discipline problem nor a drug use problem among the tested students, nor a safety among the students tested, I don't see how you get within Vernonia at all unless Vernonia sort of quietly, implicitly said what we really meant to say was drug test everybody because those principles do apply to all 24 million secondary school students in this Nation.

And so I don't--

Unidentified Justice: May I ask on the drug test?

If you had a choice, in terms of which is the... I understand you think this is clearly unconstitutional.

Would it be more unconstitutional or less unconstitutional to test everybody?

Mr. Boyd: --I'm not really sure that one can... can rank more and less constitutional.

Both seem to me plainly unconstitutional.

The only constitutional way to go beyond individualized reasonable suspicion is to identify a problem in a school and devise a solution that has a close nexus to that particular problem, and that certainly isn't the case here.

Let me put that a little bit differently, Justice Stevens.

Unidentified Justice: Of course, Justice Scalia would... would respond by saying, well, everybody knows there's a potential problem in every school in the country, and that's enough.

And why isn't that an effective argument?

Mr. Boyd: It's not... it's not enough because what I would say is that it is really that the balancing test behind the Fourth Amendment reasonableness requirement becomes one where there's no weight on one side of the... of the balance.

That's a little vague, so let me--

Unidentified Justice: Why is that?

Now, they've come in with a brief on the other side and said, you know, despite the fact that we're spending X billion dollars, two-thirds of which goes on the supply side for interdiction--

Mr. Boyd: --Right.

Unidentified Justice: --demand has stayed constant among teenagers, and it's about 20 to 30 percent of all of the children in these high schools who take drugs.

Now, if you know that that is a fact, why is it... and if you know this is a typical high school, why isn't that enough to do just what you said would be constitutional, to say here's a particular problem, 20 to 30 percent of the kids are taking drugs, and we want to come in with a solution that's tailored to that?

Mr. Boyd: Well, it's... you know, the number is probably, according to Mr. Clement, is more like 50 percent, and... and that 50 percent of... of the kids in the high schools are using drugs.

Unidentified Justice: All right.

Then it's much worse than I thought.

Mr. Boyd: And--

[Laughter]

Unidentified Justice: And then if that... if that's fine, then... then there is the problem you talked about, which I just heard you say.

And so, if... you said if there's a problem of a serious sort, and that this is tailored to that problem, they can do it.

All right.

So then why couldn't they do this on that theory?

Mr. Boyd: Well, if it's 50 percent nationally, this school in its reports to the Federal Government says that its school-wide drug use based on its own surveys, which is where the national data comes from, surveys, is 5 percent.

5 percent.

Unidentified Justice: All right, 5 percent.

I mean, maybe... maybe they exaggerated in that report.

I guess I'd have to take the finding of the district court here, and when I read the district court opinion, I thought the district judge thought it was a fairly serious problem.

Mr. Boyd: Well--

Unidentified Justice: He didn't put numbers on it.

Mr. Boyd: --Right, he did not.

Unidentified Justice: But you used the word serious problem.

So--

Mr. Boyd: Okay.

What... what I wanted to say, Justice Breyer, is this.

If you take the school at their own word, that their data shows that it's at 5 percent, and you take the school board president and all three teachers at their word in saying, to the extent that that drug use... that 5 percent is there, it tends not to be among these activities, and if you take this Court seriously in articulating a nexus test, there simply is not a nexus between choosing these non-athletes who, both in terms of school versus Nation and the non-athletes and the school versus the other students, are really exceptionally unlikely to be using drugs.

It's a terribly poor--

Unidentified Justice: --Now, in your opinion a school that did find that it was within, let's say, half the average, say 20 percent or 25 percent, and they did feel that a significant number of their extracurricular activity students were involved in that, if... if they've heard that through hearsay or any other way that was reasonably plausible for policy makers, they could then do this in your opinion.

Mr. Boyd: --No, they could not because there still is a need for a safety rationale.

There is not a single case in which drug testing has been upheld by any court, outside of this line of cases for extracurricular non-athletes.

Unidentified Justice: Well, what was the safety rationale with golfers in Vernonia?

Mr. Boyd: Well, the safety rationale... I mean, certainly the Court in Vernonia didn't talk about golfers one way or another, but--

Unidentified Justice: Well, but you're... you're saying that Vernonia was based on a safety rationale.

Its testing included golfers.

Mr. Boyd: --Well, in Vernonia, the Court talked at some length about the safety rationale.

Justice Kennedy, in his... in his Ferguson concurrence, also described the Vernonia holding as... as being about students who are athletes and face these danger risks.

Now, reasonableness, Your Honor... reasonableness... it does need to turn in the end on some kind of reasonable line drawing.

I think it was reasonable for the Court to say in Vernonia, the line that was drawn by Vernonia among athletes, the vast majority of whom are doing things that, if not involving physical contact, certainly involve exertion of the court, that in the opinion of the Court could cause death.

Death was what was... the word that was used by this Court.

Also, in Skinner, death from train accidents; in Von Raab, death from misguided bullets.

Those were the stakes in those cases.

Here you've got a choir.

Unidentified Justice: How about death from overdose?

Mr. Boyd: Death from overdose is certainly a concern, but there's no--

Unidentified Justice: I mean, do you think life and death is... is really not involved in... in the fight against drugs?

Mr. Boyd: --It absolutely is, Justice Scalia, and... and where there's--

Unidentified Justice: Let's not minimize that.

Mr. Boyd: --I don't mean to, and where there is evidence of drug use among a group of students, then I--

Unidentified Justice: As far as... as far as the extent of the drug use is concerned, this is an elected school board, isn't it?

Mr. Boyd: --It is.

Unidentified Justice: Why... why should I trust your assessment of how serious the drug problem is and what measures are reasonable to counter that... that seriousness over the assessment of... of the local citizens who... who elect their school board, and their school board says we have a big enough problem that we want to use this draconian measure?

Mr. Boyd: Well, I think if we listen to the school board and to the school administration, who themselves are even closer to that problem, what they say is, we've identified enough of a problem that initially we want to test our athletes.

And they directed Mr. Jacobs to go off and draft a policy for athletes.

He did so.

They came back and he said, you know, we feel kind of bad about stigmatizing our athletes.

Who else can we test?

Now, that's not identifying a drug problem.

In fact, the best evidence in this case is what the school itself says to the Federal Government where the Federal Government says, now, remember these reports, when they write them, they say, tell us what you know, not based on just sort of vague evidence, but tell us what you really know about drug use, do some surveys, ask some questions, look around.

The school did that, and over the course of a number of years, they said consistently exactly what Vernonia said back before it had a problem.

We don't have any--

Unidentified Justice: Suppose... suppose the school district said, we're going to have two schools and you can go to either one.

One, they don't have dogs or... or tests or anything else.

It's the druggie school.

[Laughter]

And... and the other school... and the other school is they have mandatory testing for everybody.

Would that be constitutional?

And then your client could go to the druggie school.

Mr. Boyd: --I don't think so because I think even by the nature of that hypothetical, it presupposes one of the schools is going to be vastly inferior on a number of grounds.

Unidentified Justice: Vastly experience why?

Mr. Boyd: Excuse me?

Unidentified Justice: Why?

Because there are drug users there.

Mr. Boyd: Well, I... I think... no, I don't think that's the reason why.

I think--

Unidentified Justice: No parent... no parent would... would send the child to the first school that I suggested, other than perhaps your client wants to go there.

[Laughter]

Mr. Boyd: --Well, she absolutely would not, Your Honor.

I mean, Lindsay Earls is... is a young woman, a freshman at Dartmouth now, who hasn't used drugs.

She was drug tested and she passed, and no one has suspected her of using drugs.

I'm sure my... my opposing counsel would attest to that.

Unidentified Justice: Can... can... doesn't... don't magnet schools have rules for uniforms and so forth that they're... they're completely optional?

A school district could have two schools, one with... one with no testing, the other with testing.

Then you have a choice.

Mr. Boyd: I think uniforms are a world apart.

There's not an intrusive blanket search.

Unidentified Justice: Well, they're not covered by the Fourth Amendment.

Mr. Boyd: Exactly.

Unidentified Justice: I mean, isn't that the problem?

Mr. Boyd: It is.

Unidentified Justice: What do you... do you say just frankly to the argument, forget individualized need, forget special need entirely, forget suspicion?

We're standing in loco parentis and if we think it's reasonable to do it, we can do it.

What's the answer to that argument?

Mr. Boyd: I... I think the answer to the argument is the Fourth Amendment turns on reasonableness.

It's not a majority rules standard.

And I think you have to look at the incremental intrusion here, and this is a point that I don't think has been made today.

But with school athletes, they already submit a urine sample.

Unidentified Justice: That doesn't answer the question.

The question... yes, it turns on reasonableness, but what Justice Souter's question suggests is that the... the issue is whether it would be reasonable for a parent who's concerned about drug use on the part... on the part of his children, to be this intrusive.

That is the question.

Mr. Boyd: For a parent to do it... I... well, I see that my time is up.

May I--

Unidentified Justice: Yes.

I extend your time by 30 seconds.

Mr. Boyd: --Thank you.

A parent can do many things that are different than what a school could do.

The fact that a parent could do a drug test is exactly the reason... and in Tecumseh they could do that.

That is not a reason for a school to do it in circumstances where there is not a demonstrated problem among the students who were being tested with a... with a solution that's actually tailored in any reasonable fashion to meet that problem.

Otherwise--

Unidentified Justice: Thank you, Mr. Boyd.

Ms. Meoli, you have 1 minute remaining.

Mr. Meoli: Mr. Chief Justice, if there are no further questions, I'll waive the remainder of my time.

Chief Justice Rehnquist: Very well.

The case is submitted.

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Owasso Independent School Dist. No. I011 v. Falvo - Oral Argument

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Owasso Independent School Dist. No. I011 v. Falvo

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Transcript:

ORAL ARGUMENT OF JERRY A. RICHARDSON ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument next in Number 00-1073, Jerry... correction, Owasso Independent School District No.

I-011, also known as the Owasso Public Schools, v. Kristja J. Falvo.

Mr. Richardson.

Mr. Richardson: Mr. Chief Justice, and may it please the Court:

The issue presented by this case is whether Congress, in enacting the Family Educational Rights and Privacy Act, intended to prohibit the common and longstanding practice of peer grading of routine homework papers, quizzes, and tests.

Congress did not intend FERPA to apply to such routine classroom activities, because Congress was concerned only with information that might have a long-term negative impact on a student's academic or career opportunities.

Unidentified Justice: Mr.--

--Did you take the position in the court of appeals that there is no private contract?

Mr. Richardson: We did not raise that issue in the court of appeals, Your Honor.

No, we did not.

Unidentified Justice: The court of appeals discussed it.

Mr. Richardson: The court of appeals raised it sua sponte, and it has been raised in amicus briefs submitted... in fact, three amici have discussed it.

Unidentified Justice: Why didn't you raise the issue?

Why isn't that more important than what you did raise?

Mr. Richardson: Candidly, Your Honor, we didn't raise it for a number of reasons.

Number 1, because in the district court there was a Fourteenth Amendment claim which clearly was actionable under section 1983.

Number 2, quite honestly we believe the merits argument regarding FERPA was stronger than the section 1983 argument.

Remember--

Unidentified Justice: Well, I just don't know if it's a good practice for you to force us to reach an issue you think is important if there's no cause of action anyway.

That just doesn't seem to me an orderly way to proceed.

Mr. Richardson: --Well, in hindsight I would agree with the Court that we should have approached it a different way.

Please recall, however, that at the time this case was filed, at the time the court of... at the time the district court entered its decision, and at the time the briefs were submitted in the Tenth Circuit, the Christiansen decision had not come down.

We did not have the benefit... we were under the impression, I should say, that we... that the family policy compliance officer's letter would be accorded Chevron deference, as the district court did.

We did not know that the Court was going to decide Christiansen and hold that such opinion letters were not entitled to such deference.

We made a tactical decision to focus on the merits rather than focus--

Unidentified Justice: Well--

Mr. Richardson: --on the 1983 aspect of it.

Unidentified Justice: --you also certainly had some justification on the private cause of action.

Seeing a number of decisions from this Court which have come out 5 to 4 one way and then 5 to 4 the other way--

Mr. Richardson: That's very true, Your Honor.

Unidentified Justice: --you're not sure that you're going to prevail on that.

Mr. Richardson: That's very true, Your Honor.

Both the decisions of this Court, with all due respect, are sometimes difficult for a practicing attorney to discern a clear line of--

Unidentified Justice: They're hard for us, too.

[Laughter]

Mr. Richardson: --And the other factor I would say is that the two decisions that the Tenth Circuit cited from other courts of appeals, the only two decisions that we were aware of from the Second Circuit, the Fay v. South Colonie School District decision, and from the Fifth Circuit, Tarka v. Cunningham, both of those courts of appeals had held that FERPA was actionable under 1983, so again, we made a strategic decision--

Unidentified Justice: Well, what if we think there's a real problem with that notion under this scheme, where the whole object was to have it administratively determined and it was funding mechanism, and under the act, the penalty for not following it is a cut-off of funding.

Now, what if we're quite concerned about that.

Mr. Richardson: --Oh, I--

Unidentified Justice: Do we send it back and let it be briefed and argued below?

Mr. Richardson: --No, I don't believe so, Your Honor.

The Tenth Circuit did rule on it, and we not only have... three amici in support of the petitioners addressed it.

Respondent herself did address it in her brief.

The only party that really hasn't briefed the issue is petitioners.

We would be the only one that would suffer any prejudice.

We have endorsed the position argued by the amici in the three briefs that have raised the issue.

I believe it's perfectly appropriate for the Court to decide that, and I believe that the Court... that the Court's decisions do indicate that FERPA is not actionable under 1983.

If you focus on the... go back and look at the language of the statute, of course, which is the ultimate issue, there is no rights creating language in FERPA the way there is, for instance, in title 9, that the Court focused on in Canon.

Also, this is a Spending Clause case.

There is no... the Spending Clause, as the Court has indicated repeatedly, is in the nature of a contract and there is no unambiguous indication here that Congress--

Unidentified Justice: You didn't raise this in your petition for certiorari, though, did you?

Mr. Richardson: --We didn't raise it... no, Your Honor, we didn't.

We didn't raise it in the petition for certiorari because we had not raised it in the court below and, frankly, we believed that the odds of persuading the Court to grant certiorari on an issue that we had not raised and briefed below were not very good and, again, our focus had always been on the merits of the case, and I believe we should win on the merits, but I also believe that section 1983 is not... does not provide a cause of action under FERPA.

FERPA says... it uses the language, no funds shall be available to an educational agency or institution that has a policy or practice of allowing the disclosure of education records.

That is clearly talking about a systematic practice on the part of an educational agency or institution.

If a section 1983 remedy were allowed, then what about an individual teacher who, in violation of the district's own policy or practice... the district, say, has a policy that we will not release it, yet an individual teacher makes a deliberate choice to release the information.

Under 1983 that teacher would have to be held liable, it would seem to me, even though the district had done exactly what Congress commanded.

The district had enacted a policy saying, don't do that, so that clearly militates against a 1983 cause of action.

In addition, FERPA--

Unidentified Justice: Do you know anything about how this act is enforced on the Federal side?

Have there been any fund terminations, because the only thing in the statute itself is fund termination, isn't that right?

Mr. Richardson: --That is correct, Your Honor, and I'm not aware of any decisions.

There is certainly nothing in the record to indicate that there's ever been a funding... well, I may have overspoken.

I do not recall from the record.

There might be something in the lodging of those extensive letters from the FPCO, but I do not recall, and do not... cannot represent to the Court that there's anything in the record regarding there ever having been a funding cut-off.

Unidentified Justice: Well, I guess we are taking you away from the question on which we granted certiorari.

As I understand the position of the respondent here, and tell me if I'm incorrect, if the respondent is correct, the teacher would have to keep a record of all of these quizzes as part of the permanent record, is that the necessary result of the respondent's argument?

Mr. Richardson: The respondent seems to take the position, which is contrary to what the Tenth Circuit said... the respondent seems to take the position that only records, only grades or scores that are recorded in the teacher's grade book are education records.

The Tenth Circuit clearly said that's not the case.

The Tenth Circuit clearly said, even if the grade is never recorded in a teacher's grade book, the mere fact that the teacher receives it and uses it for some purpose, maybe even just to evaluate her own teaching performance, and determine whether the class is ready to move on to the next lesson, that makes it an education record.

Respondents have backed away from that.

They argue in their brief at least, or she argues in her brief at least that it has to be recorded in the teacher's grade book, but we believe that even that is a far more broad definition of education records than what Congress plainly says in the statute.

The statute defines education records with a two-part definition.

It's those records, files, documents, or other materials that contain personally identifiable information and are maintained by an educational agency or institution, or by a person acting for an educational agency or institution.

Now, maintained has to have some substantive meaning, because it's half of the definition.

Clearly, homework papers are personally identifiable.

There's no doubt about that.

But if maintained doesn't mean anything more than what the Tenth Circuit said it meant, simply possessed by a teacher for some brief period of time, then that's really writing that word out of the definition.

Any document that comes across a teacher's desk would be an education record.

In fact, chalkboard work would have to be an education record.

If a teacher asks a student to come to the chalkboard, do a math problem, that's personally identifiable information.

The entire class can see this student working a math problem.

That math problem is maintained on the chalkboard until the teacher directs a student either to erase it, or erases it herself, or himself.

Unidentified Justice: What's your definition of maintain, what, a week, a month?

Mr. Richardson: I don't think that--

Unidentified Justice: Make me an offer.

What's your--

[Laughter]

Mr. Richardson: --Your Honor, I think that what Congress is getting at with the word maintained, it goes back to what I said in the opening statement, which is, information that could have a long-term effect on the student's career.

I think Congress was talking about... and the legislative history bears this out.

I know Your Honor is not particularly persuaded by that--

Unidentified Justice: Some of my colleagues like that stuff.

[Laughter]

Mr. Richardson: --by that argument, but Congress was concerned about things that would have a long-term effect.

What I would suggest the Court focus on, is this the kind of document that's going to be looked at by a college admissions officer?

Is this the kind of document that's going to be looked at by a potential employer, or a governmental agency at some point down the road?

Unidentified Justice: Is there a difference between your position and... the Government said, it means, educational records means institutional records.

Mr. Richardson: No.

Unidentified Justice: The kind that would be in the principal's office and not in the teacher's drawer.

Mr. Richardson: No.

No, Your Honor.

Our position and the Government's, with that regard I believe the Government's current position, as reflected in the brief of the United States, are consistent.

I don't think--

Unidentified Justice: It's not been the position that the Government, that this FPCO has taken consistently, because wasn't there... didn't they say that the teacher's grade book--

Mr. Richardson: --Yes.

Unidentified Justice: --did count as an educational record?

Mr. Richardson: Yes.

The FPCO had previously taken a much broader interpretation of education records, and had taken the position which essentially seems now to be adopted by the respondent, that once the teacher main... once the teacher receives possession of the grade, or the score, it becomes an education record.

The United States has disavowed that position and said that is clearly more broad than what the... but the key point--

Unidentified Justice: But if your definition is correct, and it's that limited that it's only the stuff the school keeps that will go on into the permanent record of the student, what would be the reason for that exception that the statute contains for, you know, personal notes that a teacher makes?

You wouldn't need that exception.

That stuff never goes down to the central office, much less is kept for, you know, for future reference.

Mr. Richardson: --Well, not necessarily, Your Honor, and that... you're referring, I believe, to the sole possession notes exception--

Unidentified Justice: Sole--

Mr. Richardson: --but that's not limited to grade books.

In fact, that--

Unidentified Justice: --Where is it?

Can we look at that?

What's the section?

Mr. Richardson: --Yes, Your Honor.

That's section (a)(4)(B)(i).

Unidentified Justice: Where is it, in the briefs?

Appendix page 4 of your brief?

Mr. Richardson: Yes.

Yes.

I'm sorry.

B, capital (B), then small (i), the term education records does not include... there's nothing in this definition about grade books.

The reference to the grade books, and it's really not a reference to grade books, it's a reference to record books, is from the legislative history, where the Court... where the Congress said, this exception was meant to apply to things used as memory aids.

I would argue that a grade book is not something that is intended as a memory aid.

Unidentified Justice: But my point is, you wouldn't need that exception.

Mr. Richardson: Well--

Unidentified Justice: If... that... I mean, that exception suggests that other things that are only... only held in the sole possession of the maker--

Mr. Richardson: --I disagree that you would not need that.

Unidentified Justice: --could be within the statute.

Why would you need that exception?

Mr. Richardson: Well, for instance, a document... a counseling record, for instance, perhaps the student had experienced some emotional problems, or something--

Unidentified Justice: Right.

Mr. Richardson: --that has come to the attention of a counselor.

The counselor writes a confidential memorandum to her permanent file.

That is an institutional record.

It's not something that's going to be thrown away, but it's also, as long as the counselor doesn't put that document, that memorandum in the institution records, or doesn't show it to another person, that's a sole possession notes exception, and would not--

Unidentified Justice: And you think that's the kind of thing that would come within your definition of permanent records, the kind of things that go on to college admissions offices, and so forth?

That's what I thought you were saying.

Mr. Richardson: --Well, I think that's--

Unidentified Justice: But now you're saying, even the notes, personal notes kept by a counselor come... would come within this statute but for that exception, right?

Mr. Richardson: --Well, but for that exception.

I think that's why the exception is there, is to keep materials like that from coming into the possession--

Unidentified Justice: Exactly.

Mr. Richardson: --because materials like that are maintained by an educational agency or institution.

They are a... counselors that have a record of a student with emotional problems--

Unidentified Justice: So are a teacher's grade books.

Why in that respect is a teacher's grade book different from the counselor's notes?

Mr. Richardson: --I believe because a grade book is, in my opinion, Your Honor, more of an evaluation instrument rather than a record.

A transcript shows what the student earned in a grade, or in a group of grades during the course of his academic career.

A grade book is more than simply a dry record of the percentages that a student achieved during his time in his class.

For instance, during a relevant grading period a student might start out doing very average C work.

The student then might near the end of the grading period suddenly get it, and start doing B and A work.

The teacher would, I think any teacher in America would look at a grade book containing those records and would not simply go, okay, the total average for this grading period is a 78.5, he or she gets a C.

The teacher would look at the improvement shown in the student's performance and would in all likelihood round it up and give the student a B.

The grade book is an evaluation instrument.

It is not simply a collection of records.

Unidentified Justice: And the counselor's notes aren't?

The counselor's notes aren't?

Mr. Richardson: Well, that argument might very well apply to counselor's notes as well.

Unidentified Justice: I mean, that's the problem.

Your notion of what are records maintained just does not square with the existence of that exception.

I mean, sometimes Congress does more harm than good by putting in an exception, because the exception suggests that if it had not been there, the stuff would have been covered.

Maybe Congress didn't want this stuff to be covered, but--

Mr. Richardson: Well, I think that's an alternative possibility, Your Honor, is that it's a belt and suspenders approach that Congress never intended grade books to be covered, but just in case somebody happened to be inclined to read them that way, we're going to put this exception in as well.

Unidentified Justice: --We usually don't interpret statutes that way.

Mr. Richardson: Well, I can understand--

Unidentified Justice: You started out by referring to maintain as implying some significant period.

Mr. Richardson: --Yes.

Unidentified Justice: And it would be consistent with that argument that you say, well, a teacher's grade book is kept for the year, but it doesn't become normally part of the institutional records of the school, so it's not maintained for a substantial enough period of time to qualify, whereas... and I just don't know factually about this... maybe the guidance counselor's records are simply kept forever.

I don't know.

I mean, is that kind of a durational criterion something you want to stand on here?

Mr. Richardson: Not in a... no, not a pure durational criteria.

I don't think that is the key.

Again, many grade books are not... I don't think Congress meant to draw a line and say, okay, you keep it 6 months, it's maintained, if you keep it 5 months and 3 weeks and 6 days it's not maintained.

I don't think Congress intended to do that, and I'm not asking the Court to do that.

I think Congress again intended to get at records that are, as a practical matter, maintained over a long period of time that are institutional records.

Unidentified Justice: But what is the definition of maintain, then, that you're using?

Mr. Richardson: The definition of maintain that I would ask the Court to adopt is its common meaning, to preserve, to retain.

Unidentified Justice: Yes, but don't... doesn't that force us into some kind of a durational... and I'm not saying this is an objection to your argument, particularly, but I mean, doesn't this force us into some kind of a durational criterion?

The record of the quiz which student A corrects the student B and calls out to the teacher, the number that student B puts on top of the quiz is a record for a short period of time.

Mr. Richardson: But it's not the kind--

Unidentified Justice: I mean, something is recorded, and you're saying, well, sure, they can't be getting at that, but if they're not getting at that, then it's either got to be for one of two reasons, either the kid who does the correction isn't a person who maintains, who makes a record by definition--

Mr. Richardson: --Correct.

Unidentified Justice: --or a record is something that has got to be maintained longer than the period that it takes for some kid to call a number out to the teacher, which is a durational criteria.

Mr. Richardson: That's true, and that's the same reason that a chalkboard, work on a chalkboard would not be maintained in the meaning of FERPA, even though it might be up there not only for a minute or two... I mean, in some college--

Unidentified Justice: May I ask you--

Mr. Richardson: --courses you may have chalkboard work that's up there for a week or more.

Unidentified Justice: --do you concede, or do you not, that the announcement by one student of another student's grades within the classroom and not outside the classroom is a release of information within (B)(i)?

Mr. Richardson: No, absolutely not.

Unidentified Justice: Because?

Mr. Richardson: Because it's not an education record.

You can only have--

Unidentified Justice: Assuming it was an educational record, would you say that it's a release when it's revealed by one student to another within the classroom?

Mr. Richardson: --No, I don't believe... in the context of pure grading, it would make no sense to say that one student, that it's not a release if the student grading the paper records the grade.

I mean, in that context, the Tenth Circuit's analysis would be right.

If it is an education record, then the fact that one student sees it is just as damming as the fact that the entire class sees it, it seems to me, but it's not an education record, therefore there's no question of release.

The other point I would make, going back to the grade book--

Unidentified Justice: I'm slightly worried about that, because suppose that... I take it attendance records are also... they probably are maintained, and they are records, aren't they?

Mr. Richardson: --Attendance... well, again I would say that attendance records are not the kind of information--

Unidentified Justice: Thank you, Mr. Richardson.

Mr. Kneedler, we'll hear from you.

ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act does not prohibit the common classroom practice of one student grading another student's paper, or other common classroom and teaching practices.

FERPA regulates the records maintained by an institution, not the homework and classwork of students.

Congress did not intend for FERPA to intrude into the day-to-day activities of hundreds of thousands of classrooms across the Nation, or the way in which teachers conduct the educational process in those classrooms, or the way in which students interact with each other.

Unidentified Justice: Does the act cover a teacher's grade book that she keeps during the term?

Mr. Kneedler: It addresses the grade book, in our view, by including it... we think ordinarily it would come within the sole possession exception in the act.

Now, I think it's important to recognize that even a grade book... there may be no one uniform practice about the way a grade book is handled.

It could be that a particular school would regard the grade book as an official school record from the outset, where the principal always has access to it, and the teacher is really maintaining a record on behalf of the institution in keeping the grade book.

You could have other school systems in which the grade book is essentially used by and for the future as a memory jog, and all that she ever discloses to the front office is the semester grade.

In that event, we think that the grade book would fall within the sole possession exception, so that this is one of the things about FERPA, is that it addresses the situation in which actual record-keeping practices may vary, or let me change that, actual pedagogical practices may vary widely from school district to school district, and that's why we think importantly this act did not enter the classroom by addressing the way teachers handle papers, give feedback to students, have students grade each other's--

Unidentified Justice: What about posting the results of the exam, the big exam, mid-term exam, and the student posts the results on the board.

Mr. Kneedler: --I think under the position we've espoused here, that would not be a violation of the act.

FPCO has taken the position in the past that it would be.

I think it would depend, though, or may depend on the way in which the grades were assembled.

I think if the teacher or professor, let's say, in college, the only grades probably ever, ever assembled or marked down for a college course may be the final exam grade.

The professor may have a grade sheet, a roster in which the professor marks down the grade for everyone in that class and sends it to the registrar, and from that list puts a list of final grades for the course.

I think at that point, the fact that the grades would be derived from something that would be regarded as an institutional record, in that instance I think the posting of the grades may well be a violation.

Unidentified Justice: But if he posts it before he sends it on to the administration office--

Mr. Kneedler: If it's posted... and this may sound technical, but this is where the two categories we think intersect.

If a grade is divulged from the paper, he takes the grade book and puts A or B or C on the paper, we don't think that the student work itself is an institutional record, and it's not--

Unidentified Justice: --But you're also, I think, saying that the disclosure has got to be of the record, not merely of information that may ultimately end up in a record?

Mr. Kneedler: --That's exactly true, and there are analogous situations in which that's true, for instance the attorney-client privilege, that the attorney can't disclose something that he's learned from the client, but that doesn't mean that the same information in the possession of the client is privileged.

Unidentified Justice: How is this... the more I hear, I... there used to be schools in any case that would say, the following 10 percent of the class graduates with honors, the next 40 percent, okay, and sort of honors, and the last 60 percent, well, they graduated, didn't they.

I mean, they didn't put it quite like that, but it was all public, in the newspaper.

Mr. Kneedler: Yes.

Unidentified Justice: Now, is that all forbidden now?

Mr. Kneedler: No.

Quite aside from the issue in this case, this statute contains an exception for what's called directory information, which includes common information about a student, the fact of their attendance, et cetera, and that includes honors awarded to a student.

That information can be released.

The school district or higher education institution has to announce a policy.

Unidentified Justice: What are we dealing with here?

You don't have much time, and I am concerned.

Are we dealing, do you think, just with the student grading and the knowledge obtained thereby, or are we dealing with the teacher's grade book, or both?

Mr. Kneedler: All that is strictly presented in this case is the practice of one student grading another's paper before the teacher has gotten the papers themselves or entered them in the grade book.

Unidentified Justice: And as to that, what is your succinct explanation of why it's not covered by the statute?

Mr. Kneedler: There's no educational record maintained by the school.

Unidentified Justice: Because it isn't maintained, or because it isn't a record?

Mr. Kneedler: Well, whether it's maintained is part of the definition of educational record.

An educational record is a record or document containing information directly related to the student that is maintained by the school and, in our view, maintained in that situation means maintained as an institutional record, and we think that the act generally draws a distinction between the institutional records and the classroom records of the teacher, and I--

Unidentified Justice: Mr. Kneedler, do you have a position on the threshold question?

Is there a claim for relief, a private claim for relief?

Mr. Kneedler: --We do not have a position on that.

That was not presented in the petition and therefore we did not address it in our brief, and under this Court's Air Couriers decision, the existence of a cause of action is not jurisdictional and may be assumed.

We... I would point out, though, that the ability of the Department of Education to cut off funds is not the sort of factor that has in other situations been thought to be sufficient to preclude a 1983 cause of action.

In Blessing v. Freestone and other cases, this Court has said that that is a different sort of remedy and does not preclude a private right of action.

Unidentified Justice: Mr. Kneedler, you said it doesn't include the teacher's classroom records.

Why, by reason of that exception that we were talking about earlier--

Mr. Kneedler: Well--

Unidentified Justice: --the sole possession exception?

Mr. Kneedler: --Two different questions.

One is whether it covers the student's work, and we think that that--

Unidentified Justice: Yes, I understand that.

Mr. Kneedler: --That that's not covered.

By teacher's records, if you mean the grade book, yes, we think that that would fall under the... or, what we commonly call grade book, some way in which the teacher keeps track of the student's progress during the marking period or--

Unidentified Justice: It's covered by the sole possession exception?

Mr. Kneedler: --That's correct.

Unidentified Justice: Which means it would have been embraced by the statute, but for that.

Mr. Kneedler: That's probably true, but it's... one thing to bear in mind here is, this act was passed in one form early in 1974.

Some difficulties were identified, and it was amended and revised and elaborated upon later in 1974, and there is a description by Senators Pell and Buckley describing the original version of the act, in which they indicated that personal records were not the sort of thing that was intended to be included, because the act then used the definition of official records that were intended to be for school use, and they said that these informal notes, and I think teacher notes would be include din that, were not intended to be included in the act to begin with.

So I think that there is a way in which that gives emphasis to something that may well have been excluded anyway, but they do fall within the coverage of the act, because the act was revised to meet some concerns that had been raised by local school districts.

I did want to point out two things in response to Justice Kennedy's question.

This act does not require a school district to retain any records.

It may destroy records at any time.

It only addresses rights of parents while the records are actually retained.

The other point is, we don't think that there is anything talismanic about the duration--

Unidentified Justice: But they don't have to be retained for 45 days or anything?

Mr. Kneedler: --If a request is made for them they have to be retained until the request is resolved, a request to inspect them, but if the parent or student, adult student has not requested it, nothing in this act requires the school district to keep them.

We don't think that duration is dispositive.

We think because the act was designed... we point this out at pages 20 and 21 of our brief, and page 23 of our brief... was intended to reach records that the school was going to be... use to make decisions about the student in an institutional way, institutional decisions about the student, which we think are different from what goes on in the classroom in the day-to-day learning experience, and so we think that that could include records, or some materials that are kept by a principal that wouldn't necessarily go into the permanent record, but would be part of the school's overall supervision of the student for that school year, so we do not think that the duration of the period is dispositive.

Having said that, what gave rise to this act was concerns about the sorts of things that were in the permanent institutional records of the student, the sorts of things that would follow the student, or that law enforcement officers or probation officers or others would have free access to when parents did not, and there was concern that there might be irrelevant information, or inaccurate or anecdotal information in records that would make a real difference in the child's life, and that's what this act is directed towards.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Mr. Wright, we'll hear from you.

ORAL ARGUMENT OF WILFRED K. WRIGHT, JR. ON BEHALF OF THE RESPONDENT

Mr. Wright: Mr. Chief Justice, and may it please the Court:

The Family Educational Rights and Privacy Act was drafted by Senator Buckley, also known as the Buckley Amendment.

Senator Buckley in 1974 stated that most conscientious teachers would have no problem gaining the consent of a parent, provided the teacher has demonstrated the worth of his proposal.

In other words, Senator Buckley did intend the Family Educational Rights and Privacy Act to reach out into the record keeping process that included the teacher's work or the... or the records that were being maintained by the teacher.

What the petitioners are requesting of this Court is to have unfettered and unshackled right to disclose exam grades to whomever they choose.

If in fact, only the cumulative or the permanent or the transcript record is the only record that is an education record, then a teacher like Justice Scalia mentioned could post the exam scores in the local newspaper, if she wanted to, prior to handing them in to the central custodian.

Such a result was not intended--

Unidentified Justice: Well, but has that ever happened?

Had any teacher ever posted exam scores in the local newspaper?

Mr. Wright: --Under the facts of this particular case--

Unidentified Justice: No.

I say, was there any... any incident of that sort that had ever been called to the attention of Congress?

I mean, was that really what Congress was trying to prevent?

Mr. Wright: --Not that particular action, but that would be a consequence of... of finding that the education records would be just a permanent--

Unidentified Justice: Well, it would be... the consequence you describe would allow a teacher to do something that no teacher has ever done.

Mr. Wright: --Contrary, Your Honor, I believe that the teachers, not only in this particular case, but in many cases, especially in the... the Krebs v. the Rutgers University case, were disclosing exam scores--

Unidentified Justice: They were posting them in newspapers?

Mr. Wright: --No.

They weren't posting them in newspapers.

Unidentified Justice: Well, that was what I asked you about because you mentioned it.

Mr. Wright: That's correct, Your Honor.

They weren't posting them in newspapers.

Unidentified Justice: If... even if we... we take the... the expansive definition that you would use, what is your response to the point that came out in... in my exchange with Mr. Kneedler, that the... that the mere disclosure of information, which may ultimately end up in a record, but a disclosure before that information is, in fact, recorded would not be prohibited by the act?

Mr. Wright: Here we have a situation, the facts of this case, that happened simultaneously.

The teacher is gathering--

Unidentified Justice: Well, do... I don't want to cut off your answer there.

But as... as a general proposition... it may not apply here, but as a general proposition, do you agree with Mr. Kneedler?

Mr. Wright: --If it doesn't make it into the teacher's maintenance of the record.

Unidentified Justice: No.

I think the assumption is it may well make it into.

It simply hasn't made it into the record yet.

At that point, before it makes it into the record, is the disclosure a violation of... of the act?

Mr. Wright: I believe that the teacher is disclosing the information that she is intending to collect.

It would be no different than a doctor sitting five patients down in front of them, having them exchange their diagnostic test, and saying, please call out that information to me.

Unidentified Justice: Well, yes--

Mr. Wright: That would not be permitted.

Unidentified Justice: --we... we don't know whether there's a statute that covers that, and we've got a statute here.

You're saying that the words of the statute would... would make it an... a violation to disclose the information that may ultimately be recorded, even before it is in fact recorded and made part of a record, as you define record.

Mr. Wright: No.

As I define record, here we have a gathering of the information, and that's as far as I'm going.

And that is, the teacher is gathering the information.

She is collecting it.

This whole process is simultaneous.

They're having the students call out the grades.

Ms. Falvo's children were having to call out the grades without her consent.

Unidentified Justice: Is the calling out a record?

What... what does the record consist of?

Mr. Wright: That's gathering the information.

The teacher writing--

Unidentified Justice: What... what is the definition of record?

I mean, it... does it include--

Mr. Wright: --Records, files, documents, something--

Unidentified Justice: --Something written.

Yes, but when... yes, and when the--

Mr. Wright: --She's making the record.

Unidentified Justice: --when the kid speaks, nothing has been written yet.

Records, files, documents, and other materials.

I don't see what there is in this case that falls within that category.

Mr. Wright: The grade.

Unidentified Justice: The grade is not a record, file, document, or other material.

Mr. Wright: She's making--

Unidentified Justice: A.

You know, I say, A.

The child shouts out, A.

That is a record?

Mr. Wright: --And I write it down as you shout it out.

Unidentified Justice: Oh, after you write it down, maybe when the teacher writes it down... at most when the teacher writes it down in her grade book, you say it... it then becomes a record.

But she doesn't disclose that grade book.

The only thing that's been disclosed is the child's, after he grades that paper, shouting out A.

What... what is the record that has been disclosed when the child does that?

Mr. Wright: That is the record that has been disclosed because the teacher is making the record.

Unidentified Justice: So you're saying the information before it becomes a... before it becomes a record, because it doesn't become a record until the child says it, and then the teacher writes it down.

You're saying the information even before it becomes a record cannot be disclosed.

Mr. Wright: If she's collecting it, yes.

Unidentified Justice: Suppose a child--

--Where do you get that from the statute?

Mr. Wright: (B)(i).

It would be illogical for a teacher to have a legal obligation to protect the confidentiality of that grade that she just created in her grade book, yet have the student call out the grade.

It is no longer--

Unidentified Justice: It may well be illogical, but I don't see anything in the statute that... that prohibits it, anymore... you could say it's just as illogical to prohibit the teacher from disclosing that information, but if somebody else happens to know it, for that person to be perfectly free to say, you know, Jack Smith's kid got a D in that test.

Does that violate the statute?

No, of course, it doesn't because the statute only covers certain things, and what it covers is records.

I don't see what record has been disclosed here.

Mr. Wright: --If a teacher has a legal obligation to protect the information in the grade book, if the grade book is an education record--

Unidentified Justice: It isn't in the grade book yet.

Your... your objection is the child grades the paper and says to the class, says to the teacher, A.

What... what is the record that is being disclosed then?

Mr. Wright: --She's making the record.

The facts of this case--

Unidentified Justice: Ah, yes.

Mr. Wright: --where she's making the record.

Unidentified Justice: The teacher is making the record after the child says, A.

Mr. Wright: That is true.

Unidentified Justice: What about a child who... I remember in my third grade, my teacher, who thought it was her job to teach, had problems sometimes with discipline.

And I might talk too much.

I used to.

[Laughter]

And... and so the teacher would say that's reasoned self-discipline.

You lack it.

And I'd get a check.

And you'd get three checks, and you get a mark on your report card.

All right?

And say, Stephen, that's the third time.

You now have a mark on your report card.

All right.

Now, she did that in front of the class because she felt that this is the way I keep my class in order and it helps me teach.

She did the same thing with her grades, many of them.

She did the same thing with attendance, by the way.

We all said, here, here, sometimes present.

All right.

In your view, are all those things now forbidden by Senator Buckley's statute that the teacher cannot run her class that way?

Mr. Wright: Not all of those items are forbidden, Your Honor.

The Socratic method is not forbidden, Your Honor.

Going to the chalkboard is not forbidden.

Unidentified Justice: No, no.

Let's use my examples.

My example was I act up in class.

The teacher says you get a check for reasoned self-discipline.

She says to the whole class... that's how she keeps order in her class.

That used to be true in the third grade.

My teacher, Miss Rosmond--

[Laughter]

--whom I recall with fondness, did--

[Laughter]

All right.

But now... now, what about my example?

I'd like an answer to that example.

Mr. Wright: If she's making a record, I would say that would be a disclosure.

Unidentified Justice: Okay.

My next question is each morning we came in and said, present or here, and she'd keep a record.

Now, is that also forbidden by this statute, unless you go through the elaborate procedures in the directory section, which I don't know any school that would have done for something like that?

But is that, in the absence of that, also forbidden?

Mr. Wright: No.

That's part of the directory information.

Unidentified Justice: No, no.

If they don't go through the procedures.

In other words, they... the teacher doesn't announce to every parent, now we want to have a hearing for you to see whether we say to your child, here or not here.

Mr. Wright: Under your--

Unidentified Justice: That would be a violation in your view on the same theory.

Mr. Wright: --It'd be a violation, but it's not under the statute.

Unidentified Justice: Well, all right.

My question ultimately then, given our examples, is do we really think that Senator Buckley intended to so interfere with the way in which a teacher would run his or her classroom--

Mr. Wright: Senator--

Unidentified Justice: --for teaching and disciplinary purposes.

And... and if so, do we think that the Congress agreed with Senator Buckley?

[Laughter]

Mr. Wright: --That's correct, because in answer to... to Justice Breyer, Senator Buckley specifically stated, some may argue that my amendment will create too much additional work and red tape.

To that argument, I must reply that I am no... not so much concerned about the workload or convenience of the educational bureaucracy.

He was not concerned about what type of convenience.

Another way--

Unidentified Justice: So no... no gold stars on the... on the paper that goes back to the student that any other student can see, or in these days, a Post-it with a happy face?

[Laughter]

The Federal Government prohibits that.

Mr. Wright: --He's intending to give the parent the right to consent to the release of information.

We believe the grade book is information.

Handing back a paper, it could be handed back to the child upside down if it has a grade on it.

There are a hundred ways to skin this cat.

Unidentified Justice: If I... if I don't agree with you on this... and I thought my examples that I gave are extreme instances, and it doesn't cover that.

Can you give me any help at all as to how this statute might be interpreted to keep its basic point, which... which might be a desirable one, but not to cover my extreme cases?

Mr. Wright: Senator Buckley said another statement.

Simple forms could be mailed to parents to obtain their permission for certain activities with regard to their children.

I would also further note that many schools already require the prior written consent of parents on a number of matters, including testing, special projects, drug programs, sex education, not to mention permission slips to go on field trips, permission slips to go play on the football team, permission slips to sell candy.

Parents are bombarded with consent forms.

What the consent form does is it informs the parent as to what is happening to their child with respect to their education.

The teacher does not have the fundamental right to educate the child.

Ms.--

Unidentified Justice: But it gives the individual... it gives the individual parent a veto, and that's what you're saying.

You have a school district.

Education is one of the... the areas that is most traditionally handled locally.

Right?

And your... your scheme is that any one parent in any classroom is going to have a veto over how that classroom operates.

Mr. Wright: --Not necessarily, Your Honor.

One parent has a veto with respect to their one child because they have the fundamental parental right to educate their child.

The teacher does not; they do.

And that's exactly what Senator Buckley was... was intending with the Buckley Amendment.

Unidentified Justice: So the rules... any parent can make the rules for that parent's child, what that parent wants them to be, not the teacher, not the school district.

Mr. Wright: With respect to--

Unidentified Justice: You think that's what Senator Buckley meant.

Mr. Wright: --Yes, with respect to education records, that is correct, especially scores on exams.

We're dealing with a special ed student here that was being mainstreamed in the classroom and having his grades called out loud.

Unidentified Justice: As long as the teacher records them, you say that.

But I think you said all this could go on, the teacher could give a spot quiz and say, I'm not counting it today, but everybody wants to know how everybody performed, so we're going to have the grades called out.

Mr. Wright: That's possibly true, but there are other means.

Even the district court found--

Unidentified Justice: But what is the answer to that?

Is it... is it... the teacher gives a quiz, has the grades called out, but doesn't record in her grade book.

Mr. Wright: --If she's not recording it in her grade book, that is not a violation.

Unidentified Justice: And if she says, class, I want to give you an incentive to do better, so I'm going to write down these grades but I'm going to discount... at the end of the term I'm going to discount the lower two-thirds of them.

Mr. Wright: It's an education record.

The fact that the teacher only uses three exam scores that she's written in her grade book as opposed to five exam scores does not nullify the parent's right to consent to the release of that exam grade in the classroom.

Unidentified Justice: Is it perfectly clear that the disclosure of information within the classroom setting is a release of education records within the meaning of (B)(i)?

Mr. Wright: Within the meaning of (B)(i)--

Unidentified Justice: Yes.

Mr. Wright: --our interpretation is it has to be.

Unidentified Justice: Why do you say that if... if it has the more formal concern about release to the public and law enforcement and so forth?

It seems to me that there's an awful lot of information about special students and others that... that the student's classmates are inevitably going to learn about just by being in class seeing what goes on in class.

It isn't, though, the... his general performance is a secret to the... to the other... to his classmates.

Mr. Wright: That... that's correct, Your Honor.

In fact, FERPA is not a panacea for all performances.

In fact, the directory information exception to the education record specifically says that participation in school activities is fine.

Unidentified Justice: But this particular school activity, it's not fine.

I'm reading off the answers in... in the presence of no one else except your classmates who generally have a pretty good idea of who the good students are and who... who the bad students are.

But you still say that's... that's clearly a release within the meaning of the statute in your view.

Mr. Wright: The grade that's going in the grade book is a release, Your Honor.

Unidentified Justice: You think it's especially... especially mean with respect to this special... special ed student who's being mainstreamed.

What... what do you say to the petitioners' footnote in their reply brief that the record establishes that the only special education service Philip received was 45 minutes of speech therapy once a week?

And that was discontinued, with respondent's consent, prior to the end of Philip's seventh grade year.

That's not as appealing as your description of this... of this student.

Mr. Wright: The fact that a special ed--

Unidentified Justice: Is that... is that what you mean by a special ed student, a student who is receiving 45 minutes of speech therapy once a... once a week?

Mr. Wright: --Yes.

I think that's--

Unidentified Justice: That's what you mean by a special... special ed student.

Mr. Wright: --He was.

He was IEP.

He was in an IEP program under the IDE Act.

Unidentified Justice: 45 minutes a week.

Did he get anything else other than that?

Of speech therapy.

What did he have?

A stutter perhaps?

Mr. Wright: No.

He was slow in reading, Your Honor.

He was slow in reading the exams, the pop quizzes, Your Honor.

I mean--

Unidentified Justice: Well, how would speech therapy help that?

Mr. Wright: --I don't know, Your Honor.

Those questions were not raised.

None of those material facts were part of the record.

Unidentified Justice: Well, I suggest you not paint your client as more sympathetic than he is.

Mr. Wright: I am just trying to be sensitive not only to just that one child, but even to her other children who are also part of this case with respect to their A's.

They were straight A students.

So rather... whether one child receives low grades or whether one child receives stellar performance in the classroom, it does not matter.

It is still a release of a grade.

Those children know the grade.

The parents of those children know the grade.

When a parent goes to the parent-teacher conference and she shows up and the teacher says, all right, these are the... we're going to keep this private, it's not private information.

It's already been disclosed.

That information is not private.

How can the teacher keep concealed that which she already revealed?

And even the district court found that hard to believe.

And... and that's... that's the logic of the Tenth Circuit.

The Tenth Circuit didn't prohibit the practice.

The Tenth Circuit merely suggested that the statute on its face, the plain language of the statute, says, give the parent the right to consent.

That was the intent of Senator Buckley: give the parent the right to consent to the release.

Unidentified Justice: If it's an educational record as defined under the act and maintained as such... and that's really the issue, whether it... it's covered at this stage of a fellow student calling out a grade.

Mr. Wright: It's covered because in the facts of this case, the teacher is using that protocol to collect the information.

Unidentified Justice: Well, but that is not the text of the statute.

You have to overcome the fact that the literal language wouldn't cover it.

Mr. Wright: The literal language interpreted in the context of the parent's right to consent, in other words, keeping that information confidential.

If there is a legal obligation on the part of the teacher to keep that grade confidential once it's in her hands--

Unidentified Justice: She had... they have no right to keep information confidential.

They have a right to keep the record confidential.

If the information is obtained from some source other than the record, the statute does not... does not address its release.

Mr. Wright: --I respectfully disagree.

The statute specifically says, which has a policy or practice of permitting the release of education records or personally identifiable information contained therein--

Unidentified Justice: Contained in the records.

Mr. Wright: --She's making the record.

She's maintaining the record.

That has to be interpreted in the context of what we're doing here.

And if we look at Whalen v. Roe--

Unidentified Justice: I'm way out-of-date probably, but again, when I used to be in school, grades were thought of, to some degree, as an incentive, that they weren't totally private.

One of their functions is they should be at least told to other people in the class in order to get them to work harder or to strive harder.

Now, in... the term of records, when they talk about records, which I don't think defines itself, is there any indication in this history that that idea that if a teacher wants to use grades as a kind of incentive device, that that should not be up to the teacher?

She isn't able to do it?

I mean, is there... see, records doesn't define itself, and I'm looking for a line.

Mr. Wright: --Congress intended that--

Unidentified Justice: In... in the absence of some other line, I might tend to think a line should be drawn to give the teacher maximum freedom to run his or her class the way the teacher feels is best educationally.

That's different from having a record in an office somewhere in the clerk's office in the school.

See, that's where... that's where I'm sort of looking for, and I'm trying to get some help from you with that.

Mr. Wright: --The line is the grade that is going in the grade book with respect to this particular case.

If the grade is going in the grade book, what she is creating, she is maintaining.

If... if that... if maintain does not mean that she is making the record or creating the record, if we subscribe to their view that maintain means the central custodian, then the central custodian doesn't have any record either until it's actually in their hands.

And then we can disclose, we can access, we... everything.

Unidentified Justice: So what... so what if you could?

Suppose you were to say that.

Suppose you were to say before it becomes part of the permanent records of the school, you can disclose it to other people.

You can.

That's right.

The teacher can tell other students.

The teacher can tell the parents.

The teacher can have a discussion about it.

They can do a lot of those things if the teacher feels that's good educationally and the school approves.

What would be so terrible about that in terms of this statute?

Mr. Wright: It would be terrible.

It would be disastrous.

Students, parents would not have the right, that privacy.

That interest in keeping that information private would not be there.

Everybody would have access to that information.

In fact, that reads out of the statute (B)(i).

You wouldn't have confidentiality.

Education records, by its plain language in the statute, means information directly related to the student and maintained by the institution or somebody acting on behalf of the institution.

And clearly, by the plain language of the statute, that includes the teacher.

So, yes, the teacher grade books... the teacher grade books are education records, subject to the Family Educational Rights and Privacy Act, the privileges and the obligations that come with this particular statute.

Unidentified Justice: Mr. Wright, this goes all the way through, I take it, in your view that... take a college student.

The college student can say, oh, I don't want to participate.

I don't want anybody else to know what my grade is, and I'm not going to exchange papers with another person.

Mr. Wright: Precisely.

We don't engage in this practice at college because we would have mutiny at all colleges.

They have the capacity as adults, I'm not doing this.

I'm out of this class.

I don't want people knowing what my--

Unidentified Justice: I understand it's a--

--You're out of the college.

I mean, that--

[Laughter]

It's a technique that teachers do use, to have students prepare and present each other's papers, that that's a technique that's quite common in colleges and professional schools.

Mr. Wright: --You're referring to the... the teacher assistant helping them grade?

Unidentified Justice: No, no.

The students critique each other's papers.

Mr. Wright: Okay.

Student peer critiquing?

That is not prohibited by FERPA.

The teacher is not collecting that information.

The students are making the evaluation or assessment of each other for their sole purpose, not for the purpose of the teacher recording and making--

Unidentified Justice: The teacher writes down... the teacher writes down in the book the comments that the students made and she takes that into account in the final grade in the course.

Mr. Wright: --Outside of the facts of this case, that may be a violation if, in fact, she's making a record and that was the intent of the teacher to make a record.

Unidentified Justice: A... a good alternate name for this statute would have been the Anti... the Prevention of Mutiny Among Students Act?

[Laughter]

Suppose... suppose that a school district received $100 a year in Federal funds, and this act were applied in the way you said, would that to you raise any serious concerns of federalism?

Mr. Wright: I think the funds need to be available under an applicable program, and I think the lower cases have... have deemed that certain programs are applicable and certain others are not.

Federal funding through a State agency would be an applicable program.

Those facts were never raised in this particular case, never defended by petitioners as to whether or not there was any applicable Federal funding involved in this particular case.

The solution to the problem with respect to this issue that is before the Court, provide the parent the right to consent... in fact, that's what they're doing in many schools or they're just, like the Tenth Circuit said, do it anonymously or don't do it at all.

Have the student grade their own paper.

Encourage the parent to come and... and be informed as to what is happening--

Unidentified Justice: To have the student grade their own paper might have some problems with it too.

[Laughter]

Mr. Wright: --I cross examined the principal with respect to that particular issue, and he said, well, we exchange papers because the students cheat.

I said, well, the neighbor grading the other neighbor's paper... they don't have an opportunity to cheat?

Oh, yes, you're right, Mr. Wright.

They do cheat.

So that doesn't preclude the students from cheating, does it?

No.

Well, no, they could cheat even during the exam because they could write the answers on their hand.

Unidentified Justice: Well, you need two cheaters for that to work, whereas if you grade your own paper, it only takes one.

Right?

[Laughter]

Mr. Wright: We believe that the plain language governs what is an educational record and it does not mean the permanent transcript.

If Congress had intended for education records to mean a permanent transcript, they could have easily placed language in there that said only the permanent or cumulative record of a child is an education record.

They didn't say that.

They even excepted out sole possession notes, which are notes of the teachers.

They excepted out directory information.

The Family Policy Compliance Office has consistently over the last 25 years held that the grade book is an education record.

A parent would like to access it.

Here's the... here's another consequence, that a parent doesn't have a right to access if it's merely the permanent education record of the grades.

The teacher could... could say, no, you can't see your child's grades.

A parent has to have that information available to her for the purpose of making some important decisions with respect to her child, and that's exactly what Ms. Falvo went to the school district and argued.

She argued that those are my children's grades.

Those are between me and the teacher.

I have a right to consent to their release, and I have a right to access.

Unidentified Justice: Well, but a moment ago, from what you said, I thought the school district was telling her that she couldn't see her children's grades.

That never happened, did it?

Mr. Wright: No, that never happened.

But that happened in a particular case that has been cited by the petitioners in the State of California where a mom with a special ed child was having a hearing and needed the information in the grade book, and they said, no, FERPA doesn't apply.

The grades in the grade book... she had no evidence available to her to make an informed decision with respect to whether or not her child belonged--

Unidentified Justice: But that... that wasn't what happened here, was it?

Mr. Wright: --That isn't what happened here, but that has happened, Your Honor.

Any further questions?

Seeing none, Your Honor, we submit.

Chief Justice Rehnquist: Thank you, Mr. Wright.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Dept of Interior v. Klamath Water Users Protect. Assoc. - Oral Argument

Fri, 09 Jan 2009 14:50:28 +0000

Case:

Dept of Interior v. Klamath Water Users Protect. Assoc.

Media File:

99-1871_20010110-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Malcolm L. Stewart

Chief Justice Rehnquist: We'll hear argument next in Number 99-1871, Department of the Interior and Bureau of Indian Affairs v. Klamath, the Klamath Water Users Protective Association.

Mr. Stewart.

Mr. Stewart: Mr. Chief Justice, and may it please the Court:

This case involves the application of exemption 5 of the Freedom of Information Act to seven documents that pertain to the Federal Government's exercise of its responsibility to act as trustee for the property and natural resources of Indian tribes.

Six of the seven documents were submitted by the Klamath tribes to the Department of the Interior at the Government's request.

The seventh document was prepared by a DOI official and was provided to attorneys for the Klamath and...

Chief Justice Rehnquist: By DOI, Department of the Interior?

Mr. Stewart: That's correct.

The documents relate to the United States' representation of the tribes' interests in a pending general Oregon stream adjudication as well as to the Bureau of Reclamation's management of the Klamath reclamation project during the period while that adjudication remains pending.

Justice O'Connor: Mr. Stewart, there was some long-term plan for this water basin that was being considered?

Mr. Stewart: At the time that the documents submitted, the Department of Interior or the Bureau of Reclamation more specifically was attempting to prepare a long-term operations plan for the Klamath project.

Justice O'Connor: Has that been abandoned?

Mr. Stewart: It has not been abandoned.

The long... no draft long-term plan has yet been issued, but the...

Justice O'Connor: Is it still under preparation?

Mr. Stewart: It is still under preparation.

Chief Justice Rehnquist: Is it ongoing?

Mr. Stewart: It is still ongoing on a year-by-year basis the Bureau of Reclamation, or BOR, manages the Klamath project based on water availability during the course of that year.

The idea behind the long-term operations plan, sometimes known as the Klamath project operations plan, or KPOP colloquially, was to devise a methodology whereby the Department would decide in advance how water would be distributed in both wet and dry years, whereas current practice has been at the beginning of the season to assess the likely availability of water and make a determination for that year.

The preparation of the KPOP in a sense interacts with the United States' representation of the tribes in the Oregon general stream adjudication, because it's the State of Oregon that will be making the final permanent determination as to who has what water rights and in what order of priority and, in connection with that adjudication, the United States has filed claims on behalf of the tribes, on behalf of the project, as well as on behalf of other Federal interests.

Justice Souter: So in the Oregon litigation I take it then the United States is really acting as counsel for the tribes?

Mr. Stewart: We are not technically acting as their attorney.

That is, the tribes have their own attorneys, but the United States acts as trustee.

It has filed claims in the Oregon adjudication...

Justice Souter: Well, are the claims that the tribes' lawyers are supporting the claims that the United States filed, or are they separate claims?

Mr. Stewart: The United States has filed claims on behalf of the tribes.

With regard to virtually the entirety of the United States submission the tribes have filed a document that simply says, we accept and incorporate by reference the claims of the United States.

Justice Souter: So...

Mr. Stewart: With respect to a small fraction of the case the tribes have filed their own claim that differs marginally from that of the United States on their behalf, but I think there is nearly a 100-percent alignment of interests in the Oregon...

Justice Souter: So your interests... with that minor exception, your interests are identical.

Counsel, technically, is separate?

Mr. Stewart: That's correct.

Chief Justice Rehnquist: Okay.

Justice Stevens: But isn't it true the United States has an interest other than just representing the tribes' interest?

Mr. Stewart: That's correct.

The United States has also filed claims on behalf of the project and on behalf of other Federal interests.

For instance, there is a wildlife refuge in the area for which the United States...

Justice Stevens: If there were a separation of responsibility within the United States presentations and if these documents had been given to the right hand rather than the left hand of the United States, would you still say they were privileged?

Mr. Stewart: I think we would certainly say that to the extent the submissions were submitted... to the extent the documents were submitted to the United States in its capacity as trustee, that is, with regard to the preparation of the United States' claims on the tribes' behalf, they would be privileged and confidential.

Chief Justice Rehnquist: But wasn't there some effort at the time the FOIA was drafted or amended to put in an exemption for a trustee which Congress turned down?

Mr. Stewart: In 1976 there was a legislative proposal that would have created a new FOIA exemption for all documents in the possession of a Government agency pertaining to the exercise of trust responsibilities, and that bill was never acted on.

That bill would have accomplished an exemption from the FOIA that is significantly broader than the exemption we're asking for here.

That is, the applicability of that exemption would not have turned on whether the documents came from the tribes initially and, perhaps more important, it wouldn't have turned on whether particular documents would be privileged from discovery in civil litigation.

That is, the focus of the court of appeals' concern... perhaps I should turn to page 2 of our brief, which sets forth the language of exemption 5 of the Freedom of Information Act.

Exemption 5 states that the requirement of compelled disclosure does not apply to matters that are, quote, interagency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency, and...

Chief Justice Rehnquist: Certainly what you have here does not literally fill that bill, does it?

Mr. Stewart: It certainly doesn't fit within the most common conception of what an interagency or intraagency memorandum would be.

The courts of appeals have, over the past 30 years, devised a methodology for determining when documents that were created by persons outside the Government may nevertheless be regarded as sufficiently internal from a pragmatic point of view that they can qualify for the exemption.

Chief Justice Rehnquist: Why would they go about that business... why wouldn't they simply read what the statute says?

Mr. Stewart: I think because they have come to the conclusion that some documents submitted by outside persons play a role in the agency's deliberations that is so similar to the role that a staff memorandum would play.

Chief Justice Rehnquist: Did they call it a consultative privilege?

Mr. Stewart: They haven't referred to it as a consultative privilege, but they have certainly said that they have used outside consultants as an example of the types...

Chief Justice Rehnquist: People that the agency hires to do work that the agency would otherwise do?

Mr. Stewart: There are really two different categories of cases in the courts of appeals, and one is as you suggest.

That is, there are situations in which a person is consulted because he has preexisting expertise but no particular institutional perspective on the matter at issue, and there I think it is fair to say that the basis for the arrangement is that this person is serving in effect as a temporary employee, performing the role an employee would perform.

There are other cases in the...

Justice O'Connor: Well, you don't assert that all tribal communications with the Federal Government concerning tribal resources are always exempt from disclosure under FOIA, do you?

Mr. Stewart: No.

We would say that the document needs to be submitted to the Government in its capacity as trustee.

So, for example, if the Fish & Wildlife Service is making a determination as to whether a particular species should be listed as threatened or endangered under the Endangered Species Act it's possible that the outcome of that listing decision might have a practical effect on the way in which tribal land can be used.

Chief Justice Rehnquist: You say as a trustee.

Where do you get that out of the statute?

Mr. Stewart: Oh, the statute refers to interagency or intraagency memorandums and the courts of appeals, in determining what can be properly regarded as internal, have focused on the existence of a special relationship between the outside person and the government official, and in many instances the outside person, as I say, is one who fulfills the role of an agency employee.

Justice Souter: But that...

Justice O'Connor: But the tribe is not an agency.

Mr. Stewart: The tribe is not an agency.

Justice O'Connor: So it's literally not covered.

Mr. Stewart: It is not covered under the most natural reading of that language.

I think there is a sense in which these submissions are properly characterized as interagency, and that is when the Federal Government actively solicits advice and assistance, when it identifies the person from whom advice is sought, when it constructs the decision... when it constructs the consultative process in a way that is reasonably designed to further the Government's own interests, the resulting document can be said to be internal in the sense that the circle begins and ends with the Government.

Justice Scalia: Well, okay, but...

It isn't a matter of being... it seems to me all of... almost all of the courts of appeals cases you're referring to do deal with consultants who have been hired by the Government to further the Government's own interests.

This is really part of the Government's operating.

The tribe here was not seeking to further the Government's interests at all.

It was seeking to further its own interests.

I think it's a stretch beyond what most of these courts of appeals cases... which I agreed with.

I mean, I've spoken to that in an earlier case, but this seems to me to take it a step further, and I can see how you can get to the conclusion that a consultant whom you hire, any memorandum produced by that consultant who was hired by you is an intraagency memorandum.

I do not see how you can leap to the conclusion that anything that is given to you by a trustee, by a trust, is an intraagency memorandum.

I mean, maybe it should be confidential, but I find it hard to call that an intraagency memorandum.

Mr. Stewart: Well, with respect to the existing court of appeals case law, certainly the consultant temporary employee is the paradigmatic example, but the D.C. Circuit has also applied this approach in cases such as Ryan and Public Citizen to Members of the Senate, to a former President who was advising the archivist regarding the proper disposition of records created during his term of office, where the idea was not that the person outside the Government was stepping into the shoes of an agency employee, or adopting an employee's perspective.

Justice Scalia: No, but it was surely... I mean, the Senate didn't have its own ax to grind when it was giving the Justice Department information about judicial nominees.

It was certainly trying to further the Government's interest, not its own interest.

Mr. Stewart: But it was consulted precisely because it would have a distinct perspective on the proper manner of accomplishing the Government's objectives, and that's really...

Justice Kennedy: In that view, if the Klamath Water Users' Association had submitted these documents, would they also be privileged from disclosure?

Mr. Stewart: No, because the United States does not act as a trustee for the Water Users Association.

Justice Kennedy: So then it's not the deliberative process privilege that we're talking about at all.

It's simply this trust relationship.

Mr. Stewart: I think the trust relationship is the thing that brings this case within a larger principle.

Justice O'Connor: No, but...

Justice Ginsburg: And yet you concede that the trust relationship in itself doesn't create any exemption under FOIA, and Mr. Stewart, this is the problem that I have with the picture here.

It's the one-way-street aspect of it.

I mean, you said the United States has made claims on behalf of the water association, too.

Mr. Stewart: It has not made claims on behalf of the water association.

It has made claims on behalf of the project, but the association and...

Justice Ginsburg: Where they have the same interest, where there's an identity of interest between... the United States might agree with the users on some of the questions, is that not so?

Mr. Stewart: There are certainly aspects of the case on which we and the users are in agreement.

Justice Ginsburg: What... but, and the users and the tribes are in, at least in tension on some of these issues.

One of the statements made is that the United States has been routinely turning over what it gets from the water association to the tribes, so the information... the tribes get information from one side that has a stake in this venture, but that side doesn't get what the tribe is giving to the Government, so it looks like it's not evenhanded.

Mr. Stewart: I think to understand why, in our view, it is evenhanded, it's essential to explain that there are several component agencies within the Department of the Interior, but two that are particularly important here, the Bureau of Indian Affairs and the Bureau of Reclamation.

Now, both the tribes and the water users corresponded with the Bureau of Reclamation, or BOR, and BOR received a FOIA request from both the tribes and the users association asking for the documents that the others had submitted, and for better or for worse BOR turned everything over.

BOR was absolutely evenhanded in divulging both tribal communications and the water users association communications.

It may be that under our theory BOR should not have been quite so forthcoming, but it was.

There was no disuniformity with respect to BOR.

BIA was a different story.

BIA is set up with the special responsibility of exercising the Government's trust responsibilities to the Indian tribes.

It essentially corresponds with the Indian tribes, and it would be unusual for the water users to correspond with BIA at all.

BIA was the subagency within the Department of the Interior that refused to disclose some of these documents, with one exception of the seven.

One of the adjudication-related documents was addressed to the Regional Solicitor of the Department of the Interior.

So primarily we are concerned with documents that were submitted to a subagency within DOI whose particular sphere of duty and expertise is the exercise of trust responsibilities for the tribes, and this Court in Nevada v. United States emphasized the BIA's unique mission, its separate juridical status...

Justice Souter: No, but isn't the value of that emphasis, if it has any value at all, only proportional to the independence of BIA from the rest of the Department of Interior, because I think the questions of several of my colleagues here have raised the same point.

If the BIA is not independent of them, then your analogy between the tribes and the consultants fails.

If we accept the consultant situation as being inter or intraagency, we can rationalize it by saying, as several have said, that the consultants really are doing something that the Department itself might be doing.

It's an extension of the Department.

It's reportable only to the Department.

But if, in fact, the Indian tribes are consulting with an agency which is concerned not only with the Indian tribes' interests, but in adjusting those interests as against the interests of other claimants, which seems to be the case here, then you don't have an analogy with a situation in which the Department and the consultant alone are involved, so it seems to me your whole argument either stands or falls on the independence of BIA, and we know that the BIA is not somehow totally independent of the rest of the Department of the Interior, whether it's preparing a KPOP or whether it's representing the United States in Oregon litigation.

Mr. Stewart: I mean, I guess I have two or three responses to that.

First, you're correct that the BIA is not an independent agency.

It is a subagency of DOI, and therefore is ultimately subject to DOI control.

At the same time, the Government is attempting to deal in a pragmatic fashion with the sort of combination of responsibilities that no private party would ever be given.

That is, things would certainly be cleaner from our point of view of DOI could either say, we will treat the tribes exactly like we treat everyone else, or it could say, we will treat the tribes exactly as a private trustee would treat the beneficiary, namely, show it a duty of undivided loyalty.

It's clear, I think from first principles and from this Court's decision in Nevada v. United States, that the Department can't pursue either of those courses.

It must on the one hand fulfill its trust responsibilities but on the other hand it has other responsibilities that would be considered conflicting if they were imposed on a private person, so giving BIA primary responsibility for the carrying out of the Department's trust mission is a pragmatic response to an admittedly messy situation.

The other thing I would say is, we don't contend that the tribes are analogous to a consultant in the sense of stepping into the shoes of an agency employee or doing what an agency employee would otherwise do.

To the contrary, we think the input from the tribes is essential if the Department is to carry out its trust responsibilities, but that's precisely because the tribes have an expertise and a perspective that no agency employee would have.

Justice Souter: Well, that's true, but I mean the problem comes because the Department has responsibilities to other people, too and it is... in effect, on your view of the Freedom of Information Act, it is able to favor one side with information while denying an equal, in effect an equal access to another side, and...

Mr. Stewart: Well, certainly...

Justice Souter: that's the real rub in deciding whether we should stretch the Freedom of Information Act language broadly enough to in effect allow the United States to grant privileges to one of the interest groups it's supposed to favor, the Indians, as against the other interest groups, water users, the general public, what-not, and that's a great stretch.

Mr. Stewart: Well, again I would say, for better or for worse, the BOR did not favor the tribes vis-a-vis the water users.

It was equally responsive to both FOIA requests.

The only...

Justice Ginsburg: But I think your position here today is, it didn't have to be, that it could claim an exemption with respect to whatever it gets from the tribes.

Mr. Stewart: Not whatever it gets from the tribes, but whatever the tribes submit to it in its capacity as trustee, so yes, our position would be, if the tribes approach BOR and say, in order to fulfill the United States' duties as trustee, the BOR must take the following management steps.

Chief Justice Rehnquist: Well, Mr. Stewart, your argument would be very convincing if Congress had enacted that trustee thing, but it didn't.

Mr. Stewart: I mean, I think it's... obviously, one of the arguments advanced in favor of the legislation that was proposed in 1976 was that the legislation would clarify the ambiguity, would make it unnecessary to resolve difficult questions concerning the application of existing FOIA exemptions, but I think the Court has long taken the position that the FOIA should be implemented in a practical way, that it should be implemented in a way that doesn't interfere with the Government's performance of its substantive...

Justice Ginsburg: But also that the exemption shall be narrowly construed.

The Court has said that repeatedly.

The main rule is, disclose unless you fit into one of these exemptions, and the exemptions are to be tightly construed.

Mr. Stewart: I mean, certainly, if we are able to persuade the Court that the threshold language is satisfied here, that is that these documents are properly regarded as interagency or intraagency memorandums or letters, we would still have to persuade presumably the court of appeals on remand that the documents would be privileged...

Justice Ginsburg: But the question is whether it fits within... the words for the exemption are interagency.

That's what has to be strictly construed.

Mr. Stewart: And in the past...

Justice Ginsburg: Once you get past that, then there's an issue that isn't even before us now whether these are deliberative and whatever else.

Mr. Stewart: I mean, with respect, I think the Court's general methodology has been to construe the threshold language of the various exemptions in a way that would protect the values that the body of the exemption is intended to protect, and the Court has said, in a shorthand formulation admittedly, that exemption 5 protects those documents, and only those documents that would be privileged in civil discovery.

I mean, the point is, most of the work here is supposed to be done by the inquiry into whether there is actually an applicable privilege.

It maybe that the threshold language will screen out some things that would be privileged in discovery, but there's no indication, either in the legislative history or in this Court's decisions, that the threshold language is supposed to screen out a lot.

To take another example...

Justice Souter: No, but we can't construe the exemption as if it were an exemption only for privileged material, because we've got inter or intraagency language that has somehow got to be satisfied before we get to the question of privilege.

Mr. Stewart: But I think it's also worth emphasizing that the one alternative that I think is not clearly on the table is to give the threshold language an absolutely rigid literal interpretation.

That is to say, nothing can be...

Justice Souter: Okay, and we've been assuming in our arguments, at least for the sake of argument, that we wouldn't be so literal as to exclude the relationship between the consultant and the agency, but the analogy between the consultant and the agency fails here because the agency here is in fact wearing more than one hat.

It's in the role of an advocate, or the role of an adjudicator, vis-a-vis the Indian tribe, so that analogy doesn't work, and it seems to me the only way you can win is to say, well, come up with a new exception, or a new interpretation of inter or intraagency, and I haven't heard what that is yet.

If we don't accept the analogy with the consultant...

Mr. Stewart: I mean, I think the...

Justice Souter: and we don't have another model for a construction or an exception, then I think you're... then I think you have to lose.

Mr. Stewart: I mean, I think the best analogy from the existing case law is to the Senators in Ryan and to the former President in Public Citizen.

That is, these are people who were not literally part of any FOIA agency, and who were consulted not because they were expected to perform exactly the same role as an agency employee.

Rather, they were consulted because they were believed to have a distinct institutional perspective.

Justice Souter: Okay, was the United States in that case in the position, formally or informally of adjudicating the interests, say of the President vis-a-vis somebody else?

Mr. Stewart: I mean, certainly the archivist was ultimately going to be making the determination whether particular documents would be made public or not, and in other private individuals such as Public...

Justice Souter: But at the time the privilege was recognized, or the exemption was recognized, was the archivist in the situation of saying, well, I have the President telling me to do one... or whoever it was... telling me to do one thing and a bunch of historians want me to do something else, so I'll consult with the President, and my consultation with him should be exempt.

Was that the situation?

Mr. Stewart: I don't know that it had progressed to quite that point, but certainly the point of the scheme was that private parties would like to have as much information as possible from the former President's records in order to do whatever type of research they wanted to do, and the former President was being consulted because of his own distinct perspective, and...

Justice Souter: Well, maybe the exemption shouldn't have been recognized in that situation, then.

Mr. Stewart: Well, I think the... certainly Congress over the years has revisited, has amended the FOIA in various respects.

It's not...

Justice Ginsburg: But you are asking for a stretch even beyond that, because this... the adversary nature of the tribes' interests versus the water users' interests.

Mr. Stewart: I mean, I think we are not... I think we're not asking for a stretch, because the United States in its capacity as trustee, and in particular the Bureau of Indian Affairs, owes a duty of loyalty to the tribes, and certainly Federal policy for most of the 20th Century has been to exercise the trusteeship in a way that will promote values of tribal self-determination, so if the United States as trustee...

Justice Ginsburg: What I mean is, that's a new element that wasn't... it's not like the paid consultant who's substituting for an employee, it's not like the Senate that's representing the U.S. Government, and it's not like the President.

You are asking for something that no other case is like.

Mr. Stewart: I would agree that the tribes' potential financial interest in the outcome of the decision, the various decisionmaking processes is unlike interests that have been recognized in the past, but again the United States is supposed to act as the trustee.

One of the central duties of a trustee in virtually every context is to preserve a duty of confidentiality to the beneficiary, and so it would be strange to say that the tribe's status as a beneficiary, the tribe's interest in the trust corpus, is the very thing that causes its submissions to lose the confidentiality that they might otherwise have.

Justice Stevens: It's not completely clear that that confidentiality is also a defense to discovery in litigation.

Mr. Stewart: I mean, certainly in litigation the particular needs of an individual requestor would be relevant in a way that they would not be relevant under the FOIA, so I think your question... the premise of your question is correct in two different respects.

First, the fact that these are in our view interagency documents doesn't automatically mean that they would even satisfy the second part of the FOIA test.

Second, even if they satisfied the second part of the FOIA test in the sense that they would not be routinely discoverable, that wouldn't by itself eliminate the possibility that they could be discovered by a litigant with a particular need.

If I may, I'd like to reserve the remainder of my time.

Argument of Andrew M. Hitchings

Chief Justice Rehnquist: Very well, Mr. Stewart.

Mr. Hitchings, we'll hear from you.

Mr. Hitchings: Mr. Chief Justice, and may it please the Court:

FOIA exemption 5 does not apply to communications between the Government and outside nonagency parties when the communications concern the Government's allocation of a valuable right or benefit among these nonagency parties.

This rule does not change due to the existence of a trustee-beneficiary relationship between the Government and the nonagency party, a relationship that itself does not give rise to a civil discovery privilege.

As we heard in the discussion preceding this, this Court's decisions and Congress itself have consistently recognized that the dominant purpose of FOIA is disclosure, not secrecy, and that FOIA exemptions must be narrowly construed.

Justice Breyer: If an ordinary person has a trustee... in fact, any one of millions of Americans indeed do have a trustee they have to give confidential... they give confidential documents to, it would be privileged in litigation, like attorney-client work privilege.

There's no way for adversaries to get those documents, is there?

Mr. Hitchings: In the context of civil litigation there is not a recognized...

Justice Breyer: So if you're an Indian, however, a member of an Indian tribe, you do exactly the same thing because your Government happens to be the trustee, opponents in litigation could get it, so the court privileges would be useless to them.

I mean, insofar as they have to give documents to their trustees, all the court privileges would be useless.

I'm not saying that means you'd lose, but I want to be sure that's the consequence.

Mr. Hitchings: Well, the consequence should be looked at within the context of...

Justice Breyer: But that is the consequence.

Mr. Hitchings: The consequence, yes, I will agree with that.

Justice Breyer: All right.

If that's the consequence, then what I'm looking for is, it seems an undesirable consequence, and therefore I wonder if their status isn't unique enough to analogize them to consultants.

That's basically... I mean, it's like nothing else.

The Indian tribe relationship is totally unique, and there's a choice of analogies, and I agree with you that it's a stretch of the language, but consultants is a stretch of the language, so shouldn't we try to see if that can't be done in order to prevent the consequence that I just described?

Mr. Hitchings: Well, I think when you are in a situation, granted the Indian tribes are unique, and they've been recognized that way throughout history, but in the same instance, in Nevada v. U.S., this Court's decision in that case did recognize the unique nature that the Government has to deal with, competing interests within water rights adjudications, and while the relationship that the Government and Interior may have with project water, irrigation water users may not approach that of a trustee, certainly Nevada said that the Government is obligated to undertake substantial obligations on their behalf.

And when you're talking about the Government making decisions regarding these competing interests, and it's not just the interests of the irrigation interests and of the tribes, it's also competing Federal interests for other federally reserved water rights, one thing that...

Justice Breyer: It didn't seem to me that's what would be relevant to the questions that I'm asking, or necessarily to the holding of the case.

That is, if we held they're not within the agency exception, they are not within it, and therefore whatever documents they give to the trustee, whether it happened to be your situation or any other situation in the world, would be absolutely... other people would get them.

The court privileges would be useless to the Indians, and that would be not only true in your situation, it would be true in every situation, if they don't fall within this.

Now, that's what's worrying me.

Mr. Hitchings: Well, I think that one of the potential off-ramps to that is that there may be other FOIA exemptions that would apply in other cases.

For the purposes of FOIA exemption 5 our position is that it does not where you have the Government allocating a valuable privilege amongst competing nonagency parties.

Justice Scalia: Mr. Hitchings, I guess you believe that the moral is you should never pick a trustee who enacts a Freedom of Information Act.

Unidentified Justice: [Laughter]

Mr. Hitchings: I don't know if that's quite the moral of the story, but it's... certainly the...

Justice Breyer: But I'm not sure the Indians had a choice.

I mean, the Congress...

Justice Scalia: Alternative moral, if you are a trustee you should not enact a Freedom of Information Act.

Mr. Hitchings: Well, I think one of the other points regarding Your Honor's question was, what other circumstances may apply.

I think in many circumstances it is going to be the Government competing, or balancing, or allocating amongst a number of competing interests, but there certainly may be circumstances where Indian tribes will communicate with BIA or Interior, and the Government is not in this position where they actually are balancing...

Justice Breyer: Is there any way to work with that, because I would normally think, you know, that people get sued, and tribes get sued like any other entity for millions of things, accidents, contracts, who knows?

I mean, there are 30 million lawsuits, or I don't know, 10 million anyway, and in each of those lawsuits they would be unable to use the privileges that are given to every other litigant if they turned over documents, as they normally would in the course of business, to their trustee.

Now, is... you say, well this is a special situation as described.

Is there any way to work with that that it could make a difference?

Mr. Hitchings: I think the rule that I articulated in the first sentence here is that FOIA exemption 5 does not apply to communications between the Government and outside nonagency parties when the communications concern the Government's allocation of a valuable benefit or privilege amongst those interested nonagency parties.

Chief Justice Rehnquist: Don't the tribes generally, in matters of contract or tort, refer to... they have their own attorneys, don't they?

Mr. Hitchings: They do, and they have their own attorneys in this circumstance too, both in the Klamath project operations plan as well as in the adjudication.

Justice Ginsburg: Mr. Hitchings, I think that Mr. Stewart said that this case, if we got past interagency, would be on the deliberative process.

Nobody is claiming in this case that the United States has an attorney-client relationship that would bring forth a privilege.

I think that Mr. Stewart agreed with that, so if we... if exemption 5 applied at all, we would be looking to the deliberative process privilege but not to attorney-client or work product, is that right?

Mr. Hitchings: Well, in this case the Government has asserted the deliberative process privilege protects all seven documents that remain in dispute.

They have also asserted that the attorney work product privilege protects two of those seven, and that's an additional basis for withholding those documents within the rubric of FOIA exemption 5, and those two documents for which the attorney-client privilege was claimed... I'm sorry, the attorney work product privilege was claimed, one of them specifically discusses the Klamath project operations plan, one of them specifically discusses the adjudication.

So there is somewhat of a mix in the privileges that have been claimed here, but it is true that the primary thrust of the Government's argument in this case has been that all of the documents are protected by the deliberative process privilege within FOIA exemption 5.

Justice Kennedy: If the Government cannot prevail under section 5, are there as to these two documents as to which work product was... will the work product privilege protect those independently of section 5?

Mr. Hitchings: Our position is that it does not, and it's because they do not... for the same reasons that it does not work within the deliberative process analysis it does not work within the attorney work product analysis either.

They do not have a common goal, a common defense or prosecution against a common adversary here.

The Government again, Interior itself has many obligations and many competing interests.

Justice Kennedy: In fact, they may even be adverse to each other in certain respects, I guess.

Mr. Hitchings: Correct and, in fact, as far as the Klamath project operations plan, there are a number of interests that the tribes are adverse to the Government on, as well as in the adjudication, too, and the adjudication contests were filed in May of this year, where the tribes themselves have filed contests to claims filed on behalf of the Fish & Wildlife Service for wildlife refuges up there.

That's within the Department of Interior.

The same is the case for the Bureau of Reclamation's claims that have been filed.

The same is the case for the Klamath project operations claim.

The tribes contest the manner in which the project is operated if the Government is operating in a manner to benefit project irrigation users, perhaps wildlife refuges, whatever the other Federal interests may be in that case.

One of the points that was brought up by the Solicitor General's argument was this alternative test of what the role of the document might play, and our position has been throughout this that that would pretty much bring within the purview of FOIA exemption 5 any document that is submitted to the Government.

If the Government was able to withhold a document based upon its affidavit of the role that document played within its discussion, that would include just about anything, and it would provide the opportunity for Federal agencies to cloak all types of discussions based upon that type of assertion.

Justice Breyer: Well, now I don't understand that.

I thought that in order to work, 5, you have to satisfy two things.

First, you don't even get there unless it's interagency, and if you are there, it's still not protected unless you can assert a privilege that you could assert in a litigation.

Am I wrong about that?

Mr. Hitchings: That's correct, there are those two tests to that.

Justice Breyer: All right, so in other words, the only things that you... the only... if it applies, it only creates privacy in respect to the following things, those things that, independently, litigation privilege creates privacy for.

Now, am I right about that, or not?

Mr. Hitchings: Correct.

You would need to satisfy that threshold test of whether it is inter or intraagency and then meet the secondary test, which is whether it is normally privileged within the civil discovery context.

Justice Breyer: That's... you see, that's why I'm worried, because we're only talking about things that would otherwise be privileged, and now they lose that privilege.

I'm just repeating myself, but I'm explaining why I'm worried to try to get from you something that will make me less worried.

Mr. Hitchings: Well, I understand that, the worry that is caused by that, but again, I think there may be other circumstances where other FOIA exemptions may apply.

It may be that in other circumstances that FOIA exemption 4 could apply, because it's a commercial privilege that is... or involves commercial information, or financial information that is otherwise privileged and confidential.

In fact, amici in support of the petitioner in this case brought that very point up, so there may be circumstances where the Government could assert other FOIA privileges.

Justice Breyer: Medical records, are medical records privileged under FOIA?

Mr. Hitchings: That would be within unwarranted invasion of personal privacy, perhaps, or one of the other exemptions...

Justice Scalia: I think they're specifically mentioned in that provision, medical records and other... whose disclosure would constitute an unwarranted invasion of privacy, but that provision letters that would not be available, memorandums or letters which would not be available by law to a party other than an agency in litigation, that isn't... that goes well beyond just attorney-client material, doesn't it?

I mean, I thought that was a fairly expansive provision, and if it were not routinely available in litigation, it benefits from that.

Mr. Hitchings: Correct.

There are other examples, and it is the discovery privilege that have been historically noted, and those would be attorney-client, attorney work product, deliberative process, if there are specific, maybe psycho... psychiatrist-patient, doctor-patient, those types of discovery privileges, but in this case there is no recognized trustee-beneficiary privilege.

There has not been recognized within... there has not been one recognized within the civil discovery context, and FOIA is not a means to create a new civil discovery privilege.

This Court's decision in Weber Aircraft explicitly stated that, and that's cited in our brief.

Chief Justice Rehnquist: So you say that the petitioner would ultimately lose, even though satisfying the interagency requirement, because of the routinely available of discovery product.

Mr. Hitchings: Our position is that the Government simply cannot meet that threshold intraagency test here, because you have a circumstance where they are not serving as a neutral outside, objective consultant.

They are... in this case the tribes are an interested party.

The Government is allocating a valuable benefit or privilege amongst not only that interested party but many others, including other Federal interests, and our position is that test just simply is not met here because of those circumstances.

Now, granted, there are circumstances where you do have a paid outside consultant that is providing information to the agency because it may be outside of that agency's expertise, but the paid consultant has no direct interest in the decision that the Government is making for which those correspondence are provided, and that's clearly distinguishable from this case.

Justice Breyer: Suppose that we thought... I may be taking it out of context, but Justice Scalia once wrote that that's exemption... said something about including any agency document that is part of the deliberative process.

Just taking that phrase, suppose it was possible to read section 5 in that way, would your documents come into that, too, not the ones you want, but your own submissions?

Mr. Hitchings: From the Klamath water users, members themselves?

Justice O'Connor: Yes.

Yes.

Justice Scalia: Yes.

Mr. Hitchings: I don't think so.

We're not asking for that.

Granted, we would love to have the opportunity to have secret communications with Interior on the decisions that we're making here, but we recognize that FOIA exemption 5 just is not read that broadly, and should not be read that broadly, and I think in Justice Scalia's dissent, I believe that was in the Julian case, he specifically stated that it talks about a consultant in a governmentally conferred capacity, and that seems to indicate that you're talking about the traditional relationship where you have a consultant that's paid by the Government to give it expert advice.

Justice Scalia: I wasn't dissenting on this point.

I just had to reach this point because of my dissent, whereas the majority didn't have to reach it, so...

Mr. Hitchings: Correct.

In that case...

Justice Scalia: The Court hasn't really addressed it...

Mr. Hitchings: Right, exactly.

In that case, the... whether the documents were intraagency was not raised below and was not part of the majority's opinion.

If the Court has nothing further, that would conclude my statement.

Rebuttal of Malcolm L. Stewart

Chief Justice Rehnquist: Thank you, Mr. Hitchings.

Mr. Stewart, you have 2 minutes remaining.

Mr. Stewart: I'd like to address the question of the role of the Government in allocating a scarce benefit, and particularly with regard to the Oregon general stream adjudication.

I think as the Court is certainly aware, the way that a priority system of water rights works is the most senior water user gets whatever rights it's entitled to, and then if there's water remaining the next most senior, and so forth down the line, and the position of the United States in the Oregon adjudication, and a position which was upheld by the Ninth Circuit in Adair, is that the tribes have a priority date earlier than that of the Klamath project.

And there are questions remaining as to the quantification of that right, but when the United States presents claims on behalf of the tribe, if the United States believed that the tribes was entitled to a certain amount of water but nevertheless asserted claims for a lesser amount in order that more should be left over for the project, we would be breaching our fiduciary duty to the tribes.

Justice Breyer: The more difficult question, if you want to take 30 seconds, is how do you get the tribe beneficiary into interagency even if you couldn't get consultants in there?

Mr. Stewart: Again, we think that the ultimate question should be whether the Government has solicited... in this case whether the Government has solicited input from a person technically outside the four walls of the Government based on a distinct perspective which is particularly useful to the Government, and an analogy...

Justice Souter: Why doesn't that cover the water users association, distinct perspective, technical, why not?

Mr. Stewart: It's not the same sort of relationship between the Government and the water users that exists between the Government and the tribe.

That is, the...

Justice Scalia: You're arguing for a trustee exception, basically, just...

Mr. Stewart: Certainly we are arguing that the trust relationship is, we would say is one example of a broader principle.

Another analogy would be to our representation of current and former Federal employees in Bivens suits, where the Federal employee obviously has a personal stake in the outcome of the litigation.

Justice Souter: Attorney-client.

Mr. Stewart: But the attorney-client privilege would kick in only if the threshold language of interagency or intraagency were satisfied, so certainly with respect to former employees I think the necessary implication of the opponents' test is, no matter how privileged the communications were, they would nevertheless be disclosable under FOIA because they could not be characterized as interagency or intraagency documents.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Stewart.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Stenberg v. Carhart - Oral Argument

Fri, 09 Jan 2009 14:50:21 +0000

Case:

Stenberg v. Carhart

Media File:

99-830_20000425-argument.mp3

Related Transcript:

1999_99_830_argument.xml

Transcript:

Argument of Donald B. Stenberg

Chief Justice Rehnquist: We'll hear argument now in Number 99-830, Don Stenberg v. Leroy Carhart.

Mr. Stenberg.

Mr. Stenberg: Mr. Chief Justice, and may it please the Court:

In Roe v. Wade, this Court said that there is no absolute right to terminate a pregnancy at whatever time, in whatever way, and for whatever reason a woman chooses.

With that legal principle, and the Casey undue burden test in mind, the issue here today is whether a State may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions.

Clearly, the State can constitutionally ban some abortion procedures.

For example, the State can unquestionably prohibit an abortion procedure that is unsafe for the woman's health.

Justice Ginsburg: General Stenberg, I just would like to clarify one thing.

You say, borders on infanticide.

I thought that this case related only to pre-viability.

Is that not so?

Mr. Stenberg: Well, that... the statute would cover both pre-viability and post viability, Your Honor, but I believe it was the legislature's observation that, whether viable or not, that it's important...

Justice Ginsburg: This case concerns only the pre-viable stage, is that not so?

Mr. Stenberg: Yes.

That's because the district judge... because Dr. Carhart testified that he did not perform post viability partial birth abortions, and therefore the Federal judge did not need to rule on the post-viability aspect of the statute.

The statute itself covers...

Justice Souter: I take it...

Mr. Stenberg: Covers both, Your Honor.

Justice Souter: I take it that save with respect to a... an exception to save the woman's life, and so on, that post viability abortions are generally precluded, by the State.

Mr. Stenberg: I'm sorry, Your Honor.

Justice Souter: Post viability abortions are generally prohibited, I assume, by separate statute.

Mr. Stenberg: Yes.

There is a separate statute that prohibits all post viability abortions except to save the life or for the health of the mother.

That is under another statute.

But I believe, Your Honor, Justice Ginsburg, that the State interest here is drawing a bright line between infanticide and abortion, and that's such a strong State interest that 30 States in our Nation have addressed this issue and have voted to ban that procedure.

In fact, in Nebraska the sentiment was so strong on the State interest to draw a bright line between infanticide...

Justice Stevens: But General, isn't the bright line between infanticide and abortion at the... a claim of viability?

Isn't that the statute that draws that bright line?

Mr. Stenberg: I think that 30 States...

Justice Stevens: It does draw that bright line, doesn't it?

Mr. Stenberg: Well, that would be a line.

That's not the bright line, however, that the legislature drew in this instance, Your Honor.

Justice Stevens: No, but that is a bright line that separates post viability from pre-viability abortions, since one is legal and the other is illegal, under Nebraska law?

Mr. Stenberg: Well, that is under one Nebraska statute, that's correct, Your Honor, but the legislature has also been concerned about the partial birth abortion procedure which led to the passage of this particular statute.

Justice Scalia: General Stenberg, I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide...

Mr. Stenberg: Yes.

Justice Scalia: when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb.

Is that not what the legislature was concerned about?

Mr. Stenberg: That is precisely the point, Your Honor, and that is precisely what motivated the legislature of the State of Nebraska in this case.

In fact, the State interest here was so strong that the statute passed the Nebraska legislature with only one dissenting vote, with many pro-choice State legislators voting in favor of this ban on partial birth abortion.

Now, the respondent argues that drawing a bright line between abortion and infanticide is not a valid State interest.

The respondent argues that there are only two valid State interests, one being maternal health and the other essentially discouraging abortions.

However, Casey specifically recognized that other State interests could be weighed as part of the undue burden test, and at 505 U.S. 877 the Court said, quote, a statute which, while furthering this interest in potential life or some other valid State interest, and then goes on to describe the substantial obstacle test, so the Court recognized that there could be other State interests besides merely maternal health and discouraging abortions.

Now, the respondent next argues that even if there is a valid State interest, that it can only be asserted if it creates no burden on a woman's right to have an abortion.

The respondent implicitly asks this Court to adopt a no-burden test, or perhaps reestablish a strict scrutiny test in place of Casey.

The respondent argues that, under the no-burden test that any State regulation which increases the health risk to a woman by even the slightest amount is unconstitutional.

This is contrary to Casey, which held... which upheld the 24-hour waiting period because it did not create, quote, a real health risk, unquote, or a, quote, a significant threat, unquote, to the health of a woman.

The respondent also asks this Court to in effect adopt an all-or-nothing test in place of the large fraction test to judge the facial constitutionality of abortion restrictions.

In other words, the respondent argues that unless a statute is constitutional in every conceivable application, it must be struck down as facially unconstitutional.

Chief Justice Rehnquist: Was this a facial challenge, General Stenberg?

Mr. Stenberg: This was pled as a facial challenge.

There's some language in the district court decision as being applied.

However, the State has never applied this statute.

This lawsuit was filed within 2 or 3 or 4 days after the statute took effect.

The State has never had a chance to attempt to apply the statute.

Justice Stevens: But General Stenberg, in the very first paragraph of the Judge's opinion it says, I do not reach the question of whether the law is facially invalid.

Mr. Stenberg: Well, I understand... and I mention...

Justice Stevens: He held it invalid as to this doctor.

Mr. Stenberg: And frankly I think, Your Honor, that the district court was simply wrong in its characterization of this case.

The State has not had an opportunity to apply the statute to...

Justice Stevens: Well, the injunction is just limited to against this doctor and his patients, isn't it?

Mr. Stenberg: I think what the district court may have had in mind...

Justice Stevens: Well, am I correct in that?

Mr. Stenberg: I'm sorry, Your Honor?

Justice Stevens: Am I correct that the injunction only applies to this doctor and his patients?

Mr. Stenberg: And similarly situated individuals, is the way I believe the court's order read, Your Honor.

Chief Justice Rehnquist: How did the court of appeals... did the court of appeals say whether it was treating this as a facial challenge, or an as-applied challenge?

Mr. Stenberg: It seems... my reading of the circuit court was that they viewed it as an applied... or, excuse me, as a facial challenge.

I think what the district judge may have thought when he said, as applied, he may have meant as applied to pre-viability abortions, drawing the distinction that Dr. Carhart testified that he doesn't do post viability abortions.

Justice O'Connor: Mr. Stenberg, do you take the position that the State of Nebraska could also prohibit the dilation and evacuation procedure for pre-viability abortions?

Mr. Stenberg: Well, under... under Danforth, Your Honor, that was still...

Justice O'Connor: Well, I just wanted your position.

Yes or no?

Mr. Stenberg: For purposes of this case, the State's position would be that the State could not prohibit the D&E procedure, but also the State has not attempted to prohibit the D&E procedure.

Justice O'Connor: I know that's the position you take, but it is difficult to read the statute and be certain that that is so.

They're both rather gruesome procedures, but in fact one may be very similar to the other...

Mr. Stenberg: I think...

Justice O'Connor: and I'm not certain whether the statute might not prohibit the D&E procedure as well.

Mr. Stenberg: It's our position, Your Honor, that it does not prohibit the D&E procedure, and I'd like to address that question first from a, kind of an institutional standpoint and then turn specifically to the language of the statute.

In the absence of a decision interpreting this law by our State supreme court, the foremost legal authority on the proper interpretation of State law is the Office of the State Attorney General.

The Attorney General interprets the law, gives legal advice to State agencies, the Governor, our administrative agencies, appears in State court every week, appears before the Nebraska supreme court virtually every time that it's in session interpreting and arguing points of State law.

A U.S. district court, by comparison, spends most of its time dealing with issues of Federal constitutional law and Federal statutory interpretation.

Justice Kennedy: Does the Attorney General in the State of Nebraska issue rulings or opinion letters?

Mr. Stenberg: We do, Your Honor.

We did not have the opportunity to do that.

We were not asked, while this statute was in the legislative process, to issue an interpretation.

But the point I want to make here is that there are approximately 20 of these cases in various stages in various Federal courts throughout the Nation and, at least so far as my staff can determine, no State Attorney General has interpreted this law or similar laws in their own States to ban the D&E procedure.

Justice Ginsburg: General Stenberg, one of the authorities that you cited for deference was the Arizonan's case where there was a formal opinion of the State Attorney General, and yet when that case was ultimately decided by the State's own supreme court, the Arizona supreme court, they rejected the formal opinion of the State Attorney General, so I think you can say that you deserve respectful consideration, but no more than that.

We don't know what the supreme court of your State would say about a position that you're taking in litigation.

Mr. Stenberg: Well, I understand that, Your Honor.

I guess my point is, is that for the Court to do that, this Court would have to essentially tell the Attorneys General of approximately 20 States that each and every one of them misunderstood and misinterpreted their own State law, even though that is their principal business day-in and day-out, year-in and year-out.

Justice Kennedy: Well, outside of this litigation, has your office or the Attorney General's office in Nebraska taken a formal position that this statute does not apply to the D&E procedure?

Mr. Stenberg: Well, our formal position was taken in the context of this litigation, Your Honor.

Justice Kennedy: Of this litigation, but not... in no other form and in no other venue have you made that statement or that representation?

Mr. Stenberg: No, Your Honor, but I would strongly recommend to this Court...

Justice O'Connor: Mr. Stenberg, let me ask you another question.

There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?

Mr. Stenberg: That is correct, Your Honor, and it's not necessary here because the D&E procedure remains available any time there is a health problem, and that procedure is available to...

Justice O'Connor: Was there no testimony to the effect that there might be circumstances in which the health of the woman required D&X versus D&E?

Mr. Stenberg: There was... there was testimony that I would regard as speculation, Your Honor, but both the American Medical Association and the American College of Obstetricians and Gynecologists have studied this issue and said that they could not identify a single circumstance when a... in which a partial birth abortion, or a D&X abortion would be the only procedure available to save the life...

Justice Ginsburg: Then why did you need an exception for life, because if you say the D&X procedure is never medically necessary, then what you're saying about no need for a health exception would seem to apply as well to a life exception.

Mr. Stenberg: I think from a legal standpoint it does apply.

I think the legislature acted, as legislative bodies do, as part of a political compromise, as part of a, perhaps an effort to be particularly careful when the life of the woman was involved, but I don't believe that it would have been necessary in order to have a constitutional statute.

Justice Breyer: If I read these correctly, and I'm not a doctor, it seems to me a lot of the amici on the other side representing medical organizations say that there could be circumstances where this D&E procedure is more risky for the health of the woman.

For example, hurting the womb so perhaps the woman couldn't have children in the future, and there are a whole lot of circumstances where labor-induced abortion... you know, induced labor can be more dangerous.

At least they list quite a few.

So what are we supposed to do where the medical opinion seems at least divided?

Mr. Stenberg: Oh, I think the medical opinion is divided, Your Honor, and I think what this Court should do when the medical opinion is divided is defer to the judgment of the State legislative body, which is the proper fact-finder when we're dealing with...

Justice Breyer: All right.

Well, if the medical opinion is divided, and then if there are doctors who feel it is necessary for the health of the mother, then what is the excuse for the legislature not putting in an exception for health, since, after all, if you're right on the facts, it would make no difference, and if you're wrong on the facts it would violate Roe and Casey?

Mr. Stenberg: Well, Your Honor, the fact is, is that the... even the experts who testified for Dr. Carhart here, that of the 60 or so doctors who have testified in these partial-birth abortion cases all across the country, only about three could be identified as actually performing this procedure themselves.

I don't think that we can conclude, as a legislative policy matter, that there are only... that almost 60 of these doctors are not properly caring, or significantly creating a health risk for their women who are patients.

This is a practice that is not used even by most abortionists in the United States, and so it's very difficult to conclude that there is any health risk when both ACOG and the American Medical Association specifically found that there are always alternatives available to a woman in need of abortion if there is a health concern.

But to return briefly to the overall picture of statutory construction, I would strongly recommend that this Court adopt the corollary proposed in the Friend of the Court brief authored by the State of Virginia, which basically says that when a Federal court is faced with a State statute that has not been construed by the State's highest court, that the Federal court either defer to the opinion of the Attorney General or... of the State, or, if the Court is unwilling, or finds that that would not be a correct interpretation of the law, to certify the question to the State supreme court, because that way...

Justice Ginsburg: Did you ask the district court to do that?

Mr. Stenberg: Pardon me, Your Honor?

Justice Ginsburg: Did you ask the district court to certify the question?

Mr. Stenberg: In our answer we... no, we did not.

We did ask the court in our answer to the complaint to abstain so that the State courts could hear the case.

Justice Ginsburg: If you didn't suggest it at the district court level, did you suggest it at the Eighth Circuit level?

Mr. Stenberg: No, Your Honor, we did not.

There was a conversation...

Justice Ginsburg: You know, that's one of the notable differences between Arizonans and this case, is they had the Attorney General from day 1 say to the district court, please certify it to our State supreme court.

They said the same thing to the Ninth Circuit.

Justice O'Connor: But you're saying it for the first time to this Court.

Mr. Stenberg: Well, yes, Your Honor, we did ask for abstention, but I suppose that...

Justice Scalia: Did the other side ask for it to be certified?

Mr. Stenberg: Not to my knowledge.

There was a discussion, Your Honor, in closing arguments between Mr. Heller, counsel for Dr. Carhart, and the district judge, closing arguments on the preliminary injunction, and Judge Kopf brought up the issue of certification, and Mr. Heller did not strongly object, but his argument was that that would not resolve the controversy, that even if the State supreme court would narrow the construction to D&X the statute was still unconstitutional, and that therefore the controversy would not be resolved by referring it to the State supreme court and in essence suggested, therefore, that the district court proceed.

Justice Scalia: Of course, if a court was going to reach that resolution it wouldn't make any sense for a court to certify it, would it?

Mr. Stenberg: If it was going to decide that the D&X was unconstitutional there would be no reason...

Justice Scalia: Even interpreted the way you say it should be interpreted, it would be wrong, I think, for the court to ask for certification.

Mr. Stenberg: Well, precisely right, and in essence Judge Kopf commented, not in those words, but generally to that effect.

Justice Ginsburg: So that it would be no more appropriate for us to certify it.

The same reasons would apply, but you've just asked us to do that.

Mr. Stenberg: Well, no, Your Honor.

If this Court is going to construe Nebraska's statute contrary to the opinion of the Attorney General that it is limited to D&X... or, excuse me, that it includes D&E, then you should certify it, but if...

Justice Scalia: Should certify it only if that makes a difference to us.

Mr. Stenberg: Only if it makes a difference.

If this...

Justice Scalia: You would acknowledge that we also should not certify if, even, we agree with your interpretation of the statute, we think it's unconstitutional.

Mr. Stenberg: Yes, that's correct.

If...

Justice Scalia: I mean, if we interpret it that way.

Mr. Stenberg: Yes.

The State's position is, this statute bans the D&X procedure.

If this Court feels that ban is unconstitutional, then there would be no need to certify that question.

But if the question is, does this statute ban the D&E procedure or not, and this Court is uncertain on that, then it should certify that question to the State supreme court, rather than, in my opinion at least, incorrectly interpret Nebraska's own statute.

Justice Souter: Is it your position that the language of the statute itself is incapable of covering D&E perhaps because of the intent requirement, or is it your position that there is a gray area, and the better interpretation is the one in accordance with the legislative intent, which was simply to get to the D&X abortion?

Which is your position?

Mr. Stenberg: I think it's fair to say the statute might be amenable to more than one construction, but we believe that the State's construction is a reasonable one.

It's one that would uphold, hopefully uphold the cons...

Chief Justice Rehnquist: Well, and we have held, have we not, that a Federal court in construing a State statute is obligated to, if there's constitutional doubt to construe in a reasonable way that will avoid the constitutional doubt?

Mr. Stenberg: Yes, that is exactly right, Your Honor, and that's of course the rule that is followed by the Nebraska supreme court as well.

Justice Ginsburg: Why is it, of course, because it wasn't in Arizonans.

In Arizonans, the State Attorney General had offered a limited construction that would remain within constitutional bounds, and then the Arizona supreme court said no, we can't read the statute that way.

We read the statute as, in covering much more than the Attorney General is arguing, and therefore it's unconstitutional.

So whatever we say about our accounting with respect to Federal legislation, certainly we can't say what the State can do with its own legislation.

Mr. Stenberg: That's true, Your Honor, and that's why I think the State certification rule offered by the State of Virginia removes the Federal court from a source of friction with the States by either accepting the interpretation placed on the statute by the Attorney General, or certifying to the State supreme...

Justice Scalia: We don't always certify State questions to the State courts, especially when there's only one interpretation that would render the statute constitutional and another one to render it unconstitutional.

It isn't the Federal law that we must certify to State courts, is it?

Mr. Stenberg: No, Your Honor, and I'm not suggesting that.

I only suggest certification if the Court places... it would place a different interpretation on the statute than placed on it by the State Attorney General.

Justice Stevens: General, may I ask you this question: let's assume your construction of the statute is correct, and then the question is whether, could the State ban just D&X, and I understood you to say earlier that the American College of Obstetricians and Gynecologists said you don't need this procedure in substance

But I notice in their brief they have a sentence, depending on the physician's skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances, and then they have a footnote to the... a finding of the district court that there are at least 10 to 20 Nebraska women each year for whom the D&X is the most appropriate procedure.

Now, do we have to disagree with that finding to hold this statute valid?

Mr. Stenberg: No, I don't believe so, Your Honor.

I think you need to accept that the legislature could consider all of the competing...

Justice Stevens: And it can ban the most appropriate procedure for a small number of women?

Mr. Stenberg: Well, I don't... I believe that the district court was simply erroneous...

Justice Stevens: Well, that's what I'm asking you.

Do we have to find that finding erroneous in order to sustain your position?

Mr. Stenberg: I don't believe so, Your Honor.

Dr. Carhart testified that he attempts approximately 200 D&X abortions a year, but only successfully completes 10 or 20 of them, and a procedure that is completed so rarely, and that is practiced so rarely across the United States, even by persons in the practice of abortion, simply prohibiting that procedure can simply not be considered to present any significant threat to a woman's health if that procedure's not available.

Justice Souter: Well, but I mean, you could make the same argument about the exception to save life.

There are very rarely instances, probably, in the whole spectrum of abortion practice in which the life exception is necessary, but you can't thereby simply say, well, we're going to allow the legislature to ignore those cases and eliminate a life exception even in your later term prohibition, so why, I guess, should the legislature be more cavalier in overruling medical judgment in this circumstance?

Mr. Stenberg: Well, I think the overwhelming weight of medical judgment, as opposed to the district court judge's view, comes from the American Medical Association and ACOG that this particular procedure is never necessary to save the life or preserve the health of the woman.

Justice Souter: Well, I think when we're talking about most appropriate procedure, as Justice Stevens is quoting their brief as doing, I think normally we take... at least I take that to mean the procedure which is most conducive to an uncomplicated abortion and hence one that does not present any health risks that can be avoided, so I find your assumption hard to accept if we are entitled to take into consideration the position stated in the OB-GYN brief.

Mr. Stenberg: Well, under Casey, Your Honor, if the test were a no-burden test, or if there could be not even the smallest possible health consideration, then Casey would have come out differently on the 24-hour waiting period.

The whole concept of undue burden is the word, undue, and it seems the respondent wants to argue here for a no-burden test, so the...

Justice Ginsburg: General Stenberg, I thought that Casey indicated that there were two interests throughout pregnancy, and one is the health of the woman and the other is the potential life of the fetus.

And whatever this particular ban does, it certainly can't be urged that it is passed in the interests of the health of the woman, and it doesn't serve the interests of the potential life of the fetus, because it just says, as you said, there's always another way to do it.

So it doesn't serve either of the purposes that we recognized in Casey as central, and therefore seems to be out of the balance that this Court set for legitimate pre-viability regulation.

Mr. Stenberg: Well, as I mentioned earlier in my argument when I quoted from Casey, the Court in very general terms recognized other State interests, presumably to be recognized and defined in subsequent case law, and I believe that case is now here.

Mr. Chief Justice, if I might reserve the remainder of my...

Justice Scalia: Just, what does a waiting... a 24-hour waiting period, how does that affect either of those two interests?

Mr. Stenberg: Well, there was...

Justice Scalia: Either the health of the... you know, the potential viability of the fetus or the health of the mother?

Doesn't that have another interest in...

Mr. Stenberg: There was testimony in the Casey decision, recorded in the Casey decision about, that the 24-hour waiting period might require more travel.

It might, in fact, lead to delays of more than 24 hours, that any delay leads to some theoretical increase, the passage of each day...

Justice Scalia: The State interest that it protects is certainly not a State interest in either the health of the mother or the viability, the potential viability of the fetus, is it, the 24-hour wait?

Mr. Stenberg: No.

That was... that...

Justice Scalia: It's a totally different State interest.

Mr. Stenberg: That's correct, Your Honor.

Justice Souter: You don't think the waiting period, the object behind the waiting period is its tendency to induce second thoughts about having the abortion?

Mr. Stenberg: Yes, that is... that is... or, I think... I would... yes, Your Honor, I would think it...

Justice Souter: So I think that does go to the potential life involved in the viability of the fetus, when the fetus, at the stage it would become viable and hence subject to full protection.

Mr. Stenberg: Yes.

It could lead the mother to decide...

Justice Ginsburg: And indeed wasn't that the purpose that the State put forward, that by giving an interval, the woman might change her mind?

Mr. Stenberg: Yes.

Justice Ginsburg: So it quite clearly was intended to serve the... what the Court described as the interest in the potential life of the fetus.

Mr. Stenberg: Yes, that's correct, Your Honor.

If I might reserve the rest of my time.

Argument of Simon Heller

Chief Justice Rehnquist: Very well, General Stenberg.

Mr. Heller, we'll hear from you.

Mr. Heller: Mr. Chief Justice, and may it please the Court:

The Nebraska statute before this Court aims to eliminate the two central principles of Roe v. Wade and Planned Parenthood v. Casey.

It seeks to reverse the supremacy of women's health over fetal interests throughout pregnancy, and it seeks to replace the viability line established in this Court's jurisprudence with a new line, one based on the location of the fetus inside the woman's body.

I want to focus on three main reasons that the Nebraska ban is unconstitutional.

First, it's so broadly written that it could prohibit most second trimester abortions as they are performed in Nebraska today.

Chief Justice Rehnquist: Well, but are... are you defending the court of appeals' construction of the statute here?

Mr. Heller: Yes.

Chief Justice Rehnquist: Do you think the court of appeals followed our admonition that when you have two plausible constructions available and one would avoid constitutional difficulty, you should follow that, even though it's a State statute?

Mr. Heller: Absolutely, Your Honor.

That principle is... only holds where the two alternative constructions are both reasonable.

In this case, the standard canons of statutory construction, those applied by the Nebraska Supreme Court and this Court, all indicate that the Nebraska statute is much broader than a prohibition just on the D&X technique.

First, its plain language describes the elements of most second trimester abortion procedures, in particular the dilation and evacuation method, as both the district court and the court of appeals found.

And they found that based not simply on this text of the statute, but the text of the statute interpreted in light of the testimony of the witnesses, both the witnesses for Dr. Carhart and the State's own witnesses who acknowledged that this statute could be broad enough to prohibit...

Chief Justice Rehnquist: Do we ordinarily go into the testimony of witnesses?

These were witnesses at a trial?

Mr. Heller: That's correct.

Chief Justice Rehnquist: And what... what authority do they have to speak to the construction of a statute?

Mr. Heller: No, I'm not talking about their authority to speak to the construction of the statute, but describing how abortion procedures actually occur and how they are performed and then comparing that to the language of the statute to see if the steps that occur in abortion...

Chief Justice Rehnquist: These witnesses compared it to the language of the statute?

Mr. Heller: No.

The... the court did.

The court relied on the descriptions of abortion procedures by the witnesses.

Justice Scalia: Well, I... I must say I don't understand... I don't understand that conclusion.

The statute prohibits a procedure in which the person performing the abortion partially delivers vaginally a living, unborn child before killing the unborn child and completing the delivery.

Now, how does that occur in D&E?

As I understand what happens in D&E sometimes is that they... is that they... is your argument that in breaking off a leg and dismembering the fetus inside the womb, when you... when you pull the leg out of the womb, that amounts to delivering, partially delivering a living, unborn child?

Pulling out a... a torn-off leg is... is delivering a living, unborn child?

Mr. Heller: The factual findings of the district court are quite clear that the way the D&E typically occurs is that the physician partially delivers the intact, living fetus into the vagina while it... before fetal demise has occurred, so that there is a living, unborn child partially in the uterus and partially outside the uterus.

Justice Scalia: But in order to... for the purpose of killing it, partially delivers... the term partially delivers a living... the unborn child means deliberately and intentionally delivering into the vagina a living, unborn child.

Now, in... in a D&E, does... is that what the... is that what the physician tries to do, tries to intentionally deliver into the vagina a living, unborn child for the purpose of... of then killing it?

Mr. Heller: Yes.

Justice Scalia: Yes?

Mr. Heller: In every pre-viability...

Justice Scalia: That's not my understanding of the D&E at all.

My understanding is that... that you... you try to dismember it if possible before the delivery.

Mr. Heller: That's not what the district court found.

All the expert testimony shows that to... if the physician were to attempt to induce fetal demise while the fetus is still in the uterus, that would impose increased health risks on the woman.

And that's really what this case is about.

It's about shifting the location of the abortion procedure into the uterus at the expense of women's health.

Justice Breyer: You mean that some of the time D&E could be that, or all the time?

My impression in reading it was that some significant part of the time this could... this statutory wording would be satisfied with the D&E.

Mr. Heller: That's right.

In fact, in the majority of the cases...

Justice Breyer: The majority?

Mr. Heller: That's right.

That... that the way a D&E is performed matches the statutory elements.

In fact, the Attorney General of Nebraska told the district court that anytime a living fetus is brought part way into the vagina, before fetal demise has occurred, and is then killed by some step, that that constitutes a...

Justice Scalia: No, but it has to be more than just bringing it.

It has to be the object of the physician to do it that way.

And I do not understand it to be the case that this is what you set out to do when you do a D&E.

Mr. Heller: Actually Dr. Carhart, in each second trimester abortion by D&E that he performs, sets out to bring as much of the fetus out of the uterus at once as possible because it reduces risks to... to the women.

It reduces the risks of uterine perforation and infection.

Justice Kennedy: Well...

Mr. Heller: So, his intention is always to do that, if possible.

Justice Kennedy: As you describe these two procedures, which in your view seem to come close together, the American Medical Association and the Association of American Physicians and Surgeons are just confused on this point?

Mr. Heller: Well, the American Medical Association described the D&X technique as a form of D&E.

It is in the record in their report on abortion that's in the record.

They describe the D&X technique as a form of D&E, and that's because it basically involves the same steps as a D&E.

It involves the same procedure of delivering the fetus vaginally.

And pre-viability, that inevitably results in fetal demise.

Justice Scalia: Where... where is that?

Will you give us the citation in the record?

I did not understand that to be the case.

Mr. Heller: Certainly.

The citation occurs in exhibit 7, which is on pages 482 through 500 of the joint appendix.

In particular, on page 492 of the joint appendix, the AMA report calls the D&X method a form of D&E and, in fact, goes on to state... the AMA states further that the D&X technique may be preferred by some physicians precisely because it reduces risks to the woman.

That's the opinion of the American Medical Association, consistent with the opinion of the specialty group, the American College of Obstetricians and Gynecologists.

Justice Scalia: Well, they... they describe it as a form of DE... D&E not in that, like D&E, it involves partial birth of the child.

That isn't the respect in which they say it's a form of D&E.

Mr. Heller: Well, the factual findings of the district court established that in all D&E's the fetus is brought through the vagina and out of the woman's body.

That's how the abortion...

Justice Scalia: Ultimately, yes, but not... not always intact and not always alive.

Mr. Heller: Typically intact and alive.

Those are the findings in the district court, and that's what Dr. Carhart does in most of the D&E abortions he performs, including those in which he's able to perform the D&X technique.

So, that's one reason that we believe the statute encompasses the D&E method.

Justice Scalia: Why... why would you be able to do a D&E and... as I understand it, the... the D&X is only possible 90 to 95 percent of the time that he attempts it.

Right?

Mr. Heller: Well, it's possible about... he is able to do it about 10 percent of the time.

Justice Scalia: Yes.

He's... I'm sorry.

Just the opposite.

It's not possible to do it 90 to 95.

Mr. Heller: Right.

Justice Scalia: What makes it impossible?

I thought what made it impossible is the inability to take out the... the fetus from the vagina intact and still alive.

Mr. Heller: Well...

Justice Scalia: And if... if you can do it and if that... if that's the same thing you do for D&E, then I don't understand any difference at all between the two procedures.

Mr. Heller: There are a variety of factors that determine how exactly a physician, whether it's Dr. Carhart of any other physician, performs the D&E when you... if you were to measure what parts are delivered and so forth.

Justice Scalia: I mean, just... just tell me what it means to say that... that 90 percent of the time he can't do a D&X, but he can do a D&E?

What does that mean?

Mr. Heller: For example, insufficient cervical dilation may exist so that... that the D&X is not possible because there's not sufficient cervical dilation to perform it.

Justice Scalia: Which would mean he cannot get out a substantial portion of the living fetus.

Mr. Heller: Well, he...

Justice Scalia: I can understand that, but if it means something other than that, then I... it doesn't mean anything to me.

He can say that he can do a D&X only 10 percent of the time.

Mr. Heller: He nevertheless is able to, in almost all D&E's, bring a substantial portion of the living fetus into the vagina before any step is taken that causes fetal demise.

And it's very clear from the legislative history here that substantial portion was intended to be very broad by the legislature.

The chief sponsor wanted to accord legal protection to the fetus anytime more than a little bit of the fetus was brought into the vagina.

Justice Scalia: But the medical testimony certainly acknowledges a general understanding of a difference between D&X and D&E.

Isn't that right?

Mr. Heller: The medical testimony shows that they are... that the D&X is a form of D&E.

It has certain specific elements, the same way as... as any particular type of surgery might...

Justice Scalia: Let me put the question differently.

The medical testimony certainly establishes that there is a distinctive form of procedure known as D&X.

Correct?

Mr. Heller: There's a distinctive variation of the D&E that's called D&X.

Justice Scalia: Well, call it a variation, whatever.

It's a distinctive procedure.

People talk about D&X.

We've been talking about it today...

Mr. Heller: That's right.

Justice Scalia: as though it is something distinctive.

It is.

Mr. Heller: Yes, it is.

Justice Scalia: So, the only question is whether this statute covers only that distinctive procedure or something beyond that.

Mr. Heller: That's one of the questions...

Justice Scalia: Can we agree that that distinctive procedure is also generally called partial-birth abortion...

Mr. Heller: Well...

Justice Scalia: and that that term is not normally applied to D&E?

Mr. Heller: No.

There is no... first, again the district court found that there was no medical definition of partial-birth abortion.

Justice Scalia: I'm not asking whether there's a medical definition.

Is... is the term partial-birth abortion not normally applied to what we've been discussing as D&X?

Mr. Heller: No, it's not normally applied.

Justice Scalia: You don't think so.

Mr. Heller: No.

Justice Scalia: If I find to the contrary, would... would you lose?

Mr. Heller: No...

Justice Scalia: Because the statute does begin partial-birth abortion means an abortion procedure in which, and then goes on, blah, blah, blah.

Mr. Heller: No, of course, because the title of the statute doesn't control its meaning in... in the case of the definition...

Justice Scalia: It isn't the title.

It's part of the text.

Mr. Heller: or in case of the legislative history.

Justice Ginsburg: Mr. Heller, what isn't part of this statute... all of this dispute would be out of the case if the legislature had simply said, we ban D&X and not D&E.

And to me it's... it's... that's just glaring here that they could have reduced all question of ambiguity if they had simply said we ban a term that the doctors call D&X and we don't ban D&E.

Is there any explanation why they didn't simply say if they meant to cut out D&X, D&X is banned?

Mr. Heller: Well, there is.

First, they... they rejected an amendment that would have done just that.

Secondly, throughout the legislative history, it's apparent that what they wanted to do was prohibit the D&X technique, but also to prohibit many other forms of abortion in which the living fetus was brought into the vagina before demise was caused.

That was their intention.

Indeed, that's the purpose that Mr. Stenberg acknowledged today, that the purpose of the statute is to accord legal protection to the fetus once it's emerged from the womb.

But even if this statute were limited to the D&X technique by some replacement of the existing definition with, say, the ACOG definition of the D&X technique, it's nevertheless unconstitutional under this Court's precedents.

First, under both Casey and Roe, the State must show that any regulation of abortions serves one of the two recognized interests, maternal health or potential life.

There's no evidence before this Court...

Chief Justice Rehnquist: Your... your opponent argues the language in Casey suggests that those are not the only two.

You disagree with that, I take it.

Mr. Heller: Well, there is language in Casey that suggests that other valid State interests could justify regulation of abortion.

That's absolutely correct.

What I'm suggesting is that the two recognized interests are not served.

I'll turn briefly to the... the new interests that are proposed.

There's a sort of a laundry list of about seven or eight new interests that the State suggests could justify a prohibition on the D&X technique.

We believe none of those is sufficient to override the woman's health.

For example, beginning with Roe and on through Casey, this Court has consistently held that the woman's interest in her health and in her bodily integrity overrides the State interests in the fetus even after viability.

So, it follows from that some... the subsidiary interests suggested by Nebraska showing concern for potential life, showing respect for potential life... they certainly can't overcome the woman's health interests and the woman's interest in her own bodily integrity.

Justice Scalia: Certainly it depends upon how significant the health interest is.

If... if there is an insignificant difference between... between using D&X and using D&E, which... which some of the medical testimony seems to indicate, you're saying that there's no interest whatever in... in the State in... in preventing the coarsening of manners from... from having the doctor and those in attendance and those who know what goes on witnessing the... the destruction of a... of a live human creature outside the womb?

There's no State interest in that at all?

Mr. Heller: Well, first, the district court found that a prohibition on the D&X technique would impose appreciable risks on women, and that follows from the very common sense findings of the district court that the D&X technique reduces instrumentation in the uterus and reduces, therefore, the risk of uterine perforation and infection.

But even if the risks were less than appreciable, anytime a State prohibits a safe abortion technique, it is prohibiting a technique that will be the safest for some women.

And in this case, we have coupled with that the very strong interests the woman has in literally declining to have additional intrusions into her body of surgical instruments.

This is the sort of interest that this Court in Glucksberg recognized as having special protection under the Fourteenth Amendment.

So, we have a... a conjunction of strong rights here...

Justice Scalia: You can't destroy the fetus after it's born if it's viable.

Right?

We... we do make the... the distinction at that point.

Mr. Heller: That's correct, and that's a distinction that this Court made in Roe for the very good reason that once the fetus is outside the woman's body, her right to control her own body is no longer at issue.

So, here... but here what we're talking about is her right to have an abortion by the safest possible means.

And there's... there's nothing in this Court's precedents that suggests that that right can be overridden by any sort of fetal interest.

Let me just add that many of the other interests suggested by the State have no support in the record.

And it would... we believe it's appropriate that if the State is going to ask this Court to recognize new valid interests that can override constitutional rights, that the State provide some evidence at least that one of those interests is actually promoted by the statute.

Let me take one example, if I may, the interest in the integrity of the medical profession.

Quite to the contrary, all the evidence suggests that the integrity of the medical profession is promoted when physicians are able to treat their patients in the most appropriate and safest possible manner.

So...

Justice Kennedy: As... as determined by the individual physician.

Mr. Heller: As determined by the individual physician in light of medical standards and the standards of the medical community.

Justice Kennedy: Well, there are certain objective standards that the profession as a whole can adopt and... and recommend to the courts.

Is that not true?

Mr. Heller: That is true, and in... in this instance, both the specialty group of American College of Obstetricians and Gynecologists and the AMA have recognized the D&X technique is the most appropriate procedure in some circumstances.

So, with the weight of that professional support behind it, we believe it's... it undermines the integrity of the medical profession to take away the most appropriate procedure in a particular case.

In fact, most of the evolution in safety of abortion since Roe has been due to the protection that's been accorded to the physician's judgment about how to carry out the abortion prior to viability.

Justice Scalia: Roe... Roe... neither Roe nor Casey are written in the Constitution.

They may not have mentioned all of the... all of the appropriate interests that may be taken into account.

Why is it not an appropriate interest that the State is worried about rendering society callous to infanticide?

There were very many highly civilized societies, including the Ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn't want, especially a deformed child.

And therefore, in order to prevent other societies descending into that degree of callousness, the... the numerous States that have enacted these laws... I don't think it's so much a concern with... with medical matters.

I think it's a concern with the horror of seeing, you know, a... a live human creature outside the womb dismembered.

Mr. Heller: Well, again, let me start by saying that...

Justice Scalia: Why can't that be a valid societal interest...

Mr. Heller: There's certainly...

Justice Scalia: whether it's expressed in Roe and Casey or not?

Mr. Heller: There's certainly a valid State interest in preventing or prohibiting infanticide.

And of course, Nebraska, like virtually every other State, already does so through its general homicide statutes, so that Nebraska protects the fetus, even the pre-viable fetus, if it has an independent existence from the woman.

But to say that an abortion procedure that is safest for the woman, a pre-viability abortion procedure, is so horrific and so like infanticide, any of the... any of the abortion procedures... that could be said about any abortion procedure because every abortion procedure pre-viability involves fetal demise.

They all do.

This is an interest which, if recognized and if it could override the woman's right to... to health and bodily integrity, would authorize States to prohibit any abortion method and prohibit, indeed, all abortions.

So that it's irreconcilable ultimately with the right recognized in Roe and Casey.

I want to turn also to... to a second reason that the D&X... prohibition on the D&X technique is invalid if, indeed, the statute could be so limited.

And that is the recognition in Casey that a statute which has the purpose of imposing an undue burden on the woman's right to obtain a pre-viability abortion is also invalid.

Here the only purpose suggested, indeed, the primary purpose identified by the Attorney General of Nebraska, is precisely to elevate the status of the fetus based on its location within the woman's body, not in its location once it's born, not on viability.

And this is an interest.

If this elevation were permitted, it would authorize States to prohibit all abortions.

That's an impermissible purpose under Casey.

Coupled with this impermissible effect of effectively depriving women in Nebraska of the safest and most medically appropriate method of second trimester abortion, the statute simply can't survive under this Court's decisions.

Indeed, when you... when you consider the State interests there... some of the other State interests that are proposed, not even they are served by the statute.

The interest in, for example, cruelty to the fetus.

There's no evidence that that interest is served here.

In fact, the statute doesn't say anything about cruelty to the fetus at all.

So, we're looking at a statute that doesn't serve either of the recognized State interests.

It doesn't... there's no evidence that it serves any of the proposed new State interests by permissible means, and at the same time, it imposes some health risks on women.

That sort of statute... the balancing in that sort of statute is decisively against the constitutionality of the statute under any interpretation, whether broad or narrow.

For example, again, if... if the State... if the State couldn't really prohibit a more dangerous procedure for abortions such as hysterotomy because those methods are most medically appropriate for some women.

And to take one method like the D&X technique out of the hands of physicians performing pre-viability abortions inevitably makes abortion more dangerous for women.

So, when this Court, for example, in Danforth struck down the... Missouri's prohibition on saline abortions, it took a step that enabled physicians to continue to develop newer, safer methods of abortion.

That really relates to one of the points made by Mr. Stenberg in his opening, which is that, well, why aren't all these other physicians around the country doing this if it's so safe?

The reason is that it's new.

Any new surgical technique, any new medical technique is at the beginning going to be used only in a scattered way.

Justice Scalia: So, we can look forward to this being more widespread in the years to come.

Is that right?

Mr. Heller: We don't know and that's because we don't know whether in the future even new methods will replace this method as the safest for women.

But this Court's jurisprudence has always pushed in the direction of allowing physicians to exercise judgment so that they could determine the safest possible means of performing abortion not State legislators.

It should be the doctor deciding how surgery is performed, not the Nebraska Senators.

So, with the improper purpose and with the lack of service of any State interest, we believe the statute is unconstitutional.

But I want to turn to yet an additional problem with the statute which is... which is its lack of any health exception.

This is a problem which even the Attorney General doesn't suggest, well, go ahead, we think it should be interpreted to have a health exception.

They don't want it to have a health exception.

They resist that interpretation which could ameliorate one of the constitutional problems with the statute.

Chief Justice Rehnquist: Well, but hasn't there been some criticism of the health exception as it has been used in some circumstances as a way of simply avoiding the prohibition entirely by a doctor who says there's always a health exception?

Mr. Heller: Well, there... there has certainly been criticism of that, of course.

But considering, for example, Nebraska's post-viability abortion prohibition, which has exceptions for the life and health of the woman without restriction, there's... there's no evidence, for example, that that statute has ever been misapplied by a physician in Nebraska.

Nor is there a suggestion that similar statutes have ever been misapplied by physicians in other States.

So that this sort of health exception which...

Chief Justice Rehnquist: Well, then whence the criticism?

Is it just totally based on no evidence whatever?

Mr. Heller: Well, I think there's criticism, for example, from some who oppose abortion entirely.

Chief Justice Rehnquist: But how about... are you saying that there's simply no basis for saying that a health exception could be used by doctors who wish to avoid the general prohibition to get out of it in more cases than they should?

Mr. Heller: I think there is no basis for that... that claim.

A physician who used a different abortion technique for a woman who was sick or dying and not because it was the most appropriate technique would already be subject to malpractice penalties and penalties for unprofessional conduct.

So, if this was going on, we would see evidence of it.

But in fact, what we see is just increasing safety of abortion for women in the United States.

The lack of a health exception is also one that could not be, in our view, cured by any sort of certification process, which has been suggested, because it would really require just rewriting the statute, and... and we believe the Nebraska Supreme Court would not do that, nor would the Nebraska Attorney General want them to.

Justice Scalia: Do you think when you have a... a fully viable fetus that no State restrictions upon... upon the woman's right to abort could involve any risk whatever to the woman's health?

There has to be a health exception?

Mr. Heller: Well, in... in Thornburgh, this Court required that a choice of methods statute not impose risks on the woman's health...

Justice Scalia: Any... any risk whatever.

Mr. Heller: Well...

Justice Scalia: If there's the slightest risk whatever, the... the State must allow the woman to dispose of a fully viable fetus.

Mr. Heller: I don't think Thornburgh says that.

I think Thornburgh says that the State...

Justice Scalia: Do you think that that's the rule?

Mr. Heller: I think the rule is under Thornburgh that the State cannot impose significant risks on women's health after viability.

Before viability where the State interest in the fetus is much less than after...

Justice Scalia: I understand that, but it... it's possible that there is a similar rule applicable here, that the State may not impose significant health risks upon the woman.

But that doesn't mean that there can't be, you know, a minimal, virtually nonexistent health risk, which is what your argument assumes, that you cannot have any... any risk whatever.

Mr. Heller: First, again the district court findings say that there is an appreciable health risk from prohibiting the D&X technique.

But secondly, again part of this calculus is looking at the State interests, and the State... there are no State interests served by this statute, unlike the post-viability statute which serves a very compelling interest.

Justice Scalia: What if another district court makes a different finding?

I mean, do... do we accept the district court's findings on these general medical questions as binding?

Is it... is it binding just in this case?

Or if we have another abortion case from another... from another circuit where the district judge makes a different conclusion, the... the nonmedical district judge, do... do we then accept that other conclusion too?

Mr. Heller: We believe that the conclusion here must be drawn from much of the evidence that could not be disputed in any case around the country, which is that the AMA and the... and ACOG both recognize that this, the D&X procedure...

Justice Breyer: Is it... is it the case that the risk... I thought the risks being insubstantial was of a kind where we say one in a million.

But once we've identified the woman, for that woman it's no longer insubstantial, is it?

Mr. Heller: That's absolutely correct.

The risks...

Justice Breyer: And... and therefore a health exception or a life exception helps that single woman.

Mr. Heller: Absolutely.

And so, it helps the 10 to 20 women, for example, for whom Dr. Carhart is able to perform the D&X technique.

Rebuttal of Donald B. Stenberg

Chief Justice Rehnquist: Thank you, Mr. Heller.

General Stenberg, you have 3 minutes left.

Mr. Stenberg: Thank you, Your Honor.

First of all, on May 20th, 1997, the Nebraska legislature adopted an amendment that was proposed to Congress by the American Medical Association for the purpose of making clear that the statute did not prohibit the D&E procedure.

And the best discussion of that can be found on page 418 of the joint appendix.

Justice Ginsburg: Why didn't they just say that, General Stenberg?

Why didn't they just... I mean, that was proposed, Mr. Heller told us... say that what's banned is D&X, what's not banned is D&E?

That was such a simple way of clarifying it.

Why didn't they do that?

Mr. Stenberg: Because the Nebraska legislature was relying on the American Medical Association and the Congress of the United States and patterned their legislation on that.

And they felt that if this gained the support of the American Medical Association and Congress, which it did for the 1997 law, that they wanted to pattern that and rely on the American Medical Association and their lawyers and congressional lawyers.

Justice Ginsburg: Did the medical... American Medical Association recommend this text or did they simply say, in our judgment, it's okay to ban D&X?

Mr. Stenberg: No.

They did... they did both.

They... they... what they said is if the Congress would adopt these amendments, which were the same as... as what Nebraska adopted, that they would then support the ban on D&X abortion.

Justice Ginsburg: Well, is there any question that they would have supported a ban that simply said what you tell me the legislature meant, that is, we ban D&X and nothing else?

Mr. Stenberg: There's... of course, there's more than one way to achieve the same result, Your Honor.

The Nebraska legislature chose to...

Justice Ginsburg: You would just be saying that the AMA liked this other text.

Is there anything in the world to indicate that they wouldn't have preferred the clarity that we ban D&X would have brought?

Mr. Stenberg: Well, of course, viewed from, I think, the standpoint of a State Senator in... in the State of Nebraska, they're not really in a position to go to the AMA and say, well, is there some other language that might be just as good?

They just took what was given to them.

Justice Ginsburg: But there was a medical term.

Is there any reasonable doubt that a doctor would say... a medical term is what doctors use.

Are you suggesting that any legislator in... in the State was genuinely in doubt, whether if he had used D&X, the medical association would have disapproved?

Mr. Stenberg: Well, there was some doubt because in 1997 there were several terms used to describe this procedure, the D&X, the intact D&E, the intact D&X, and the Haskell D&X.

So, there were several different, quote, medical terms that were being applied in 1997, and the legislature chose to attack it by... by describing the procedure rather than using a medical term, which I believe the legislature is free to do.

On this question of what is a D&E, Dr. Carhart addressed that in his complaint on paragraph 30 in which he pled, the intact removal of the fetus...

Chief Justice Rehnquist: Thank you, General Stenberg.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Hill v. Colorado - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Hill v. Colorado

Media File:

98-1856_20000119-argument.mp3

Related Transcript:

1999_98_1856_argument.xml

Transcript:

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument now in No. 98-1856, Leila Jeanne Hill, et al. v. Colorado.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice, and may it please the Court:

The Colorado statute at issue here, 18-9-122, section 3, converts protected speech into a crime.

The statute, which can be found at page 64a and 65a of the petition appendix, the last two pages, imposes an 8-foot floating bubble zone around every person who passes within a 100-foot radius of every entrance door to every health care facility in the State of Colorado.

Within that floating bubble zone, the statute criminalizes a knowing approach made for the purposes of engaging in constitutionally protected speech unless prior consent is obtained.

The consent provision alone invalidates the statute.

It makes the peaceful distribution of a leaflet, the display of a sign, and even specific oral communications in a traditional public forum a crime if prior consent is not obtained.

The statute targets only constitutionally protected speech.

There is no core or prescribable conduct which this statute reaches.

The bubble zone, with its consent provisions, attaches to every person who comes within a 100-foot radius of every health care facility in the State.

Justice Ginsburg: Mr. Sekulow, am I correct in understanding that no speech, no words, are prohibited.

It's only distance.

You can speak anything you want at an 8-foot distance.

Mr. Sekulow: Outside of the zone, there is no restriction on speech.

It's when you...

Justice Ginsburg: But even in the zone, as long as you're 8 feet away, you can speak.

Mr. Sekulow: Yes, but there... you have... there are two different zones here.

The 8-foot bubble zone comes into existence when someone is within a 100-foot area... radius of a health care facility.

The bubble zone which floats attaches to every person who enters that specific... specific zone.

So, you... once you're within the 8-foot of someone, if you do not ask for consent, you do not... you're not allowed to speak.

It's a...

Justice Breyer: What is it... what is it that... I mean, 8 feet.

You're 16 feet away from me.

8 feet is about the distance to Mrs. Underwood here.

What... what is it that she can't tell me?

Mr. Sekulow: I think it's...

Justice Breyer: What... what speech is it difficult for anyone to make when you're about this 8 feet, say, the distance between me and Justice Kennedy?

Mr. Sekulow: Justice Breyer, I think it's the same issues that the Court dealt with in Schenck, the distribution...

Justice Breyer: Well, in Schenck I suppose the problem was that you couldn't... you didn't know where the bubble started.

Somebody walking along the sidewalk... you carried the bubble with you.

They didn't know where they're supposed to be.

Now, there's none of that problem here.

Mr. Sekulow: Well, I... I think there is, Justice Breyer.

I think the... the bubble zone floats.

There's no doubt about that.

It attaches to everyone who is within... comes within the initial 100-foot area.

That bubble zone floats to... unless you...

Justice Breyer: That wasn't... I thought the problem in the other case was that as the person walked along the sidewalk, people who were just standing on the sidewalk would have to get out of the way as the person carrying the bubble moved along.

But here anyone on the sidewalk simply stops.

There's no problem.

They can come within 1 feet, but if the woman wants to avoid that person, the person can't chase after her.

Mr. Sekulow: This...

Justice Breyer: Now, is... am I right about that factually?

Mr. Sekulow: I think that's incorrect, Justice Breyer.

Justice Kennedy: All right.

What...

Mr. Sekulow: And here's the reason why.

The zone here does float.

You are not allowed to enter that 8-foot zone unless there is prior consent.

Justice Breyer: I'm... I'm sorry.

I didn't... I wasn't clear.

I didn't say it didn't float.

I said that a person standing on the sidewalk, as the woman approaches, if the person stands still, the person doesn't have to do anything even if the woman comes within 6 inches.

Mr. Sekulow: That's...

Justice Breyer: But if in fact the woman decides she doesn't want to go close to that person and walks around him, then he cannot chase her.

Now, that's my understanding of how it worked physically.

Is that right?

Mr. Sekulow: That's correct.

If you're standing still and you're there first.

In... in that regard, it operates... the consent provision here operates exactly as the consent provision in Madsen.

In Madsen, you could stand still.

If you weren't there first, you could stand still.

It prohibited a physical approach, which is exactly what this statute does here.

This statute actually combines the floating zone of Schenck with the no-approach zone that the Court prohibited in Madsen.

So, if you're going to enter within 8-feet of a person, if you're not there first... in other words, if you stand still, sure, you don't violate it, just like in Madsen.

But the consent provision alone in Madsen invalidates the statute.

Justice Stevens: Well, that's not like in Madsen.

In Madsen, at least the Court assumed they would have had to move out of the bubble.

That's what I remember the Chief Justice's opinion said, I think.

Mr. Sekulow: Actually, Justice Stevens, in Madsen the... the prohibition that was at issue in the injunction prohibited a physical approach.

Justice Stevens: Well, didn't the Chief Justice's opinion interpret it as requiring the stand-by to move?

Mr. Sekulow: Not in Madsen.

In Schenck that was the concern of the floating bubble zone.

Justice O'Connor: Oh, okay.

Mr. Sekulow: And in that... in that regard, here the concern was that the zone floats in Schenck.

It does here.

I mean, while the person moves, you have to move with them unless you have consent.

So, Justice Breyer, it's the same.

Justice Breyer: Remind me... my original question was this, and it may just require reminding me of what these other cases said.

But if I'm standing still and I... people can approach me, and then I'm about the distance I am from Justice Kennedy.

Mr. Sekulow: Yes.

Justice Breyer: And there's a woman coming along.

What is it... because she can walk around me... that I can't tell her?

Mr. Sekulow: I think...

Justice Breyer: This is a speech case.

What's the restriction on the speech?

Mr. Sekulow: The display of a leaflet, the showing someone written material.

In... in Schenck we talked about, Justice Breyer... we talked about the displaying of a Bible.

In Schenck, this Court at page 377 stated... and I'll... I'll quote it exactly... that the concern of the floating bubble zone was that it prevented defendants, except for two sidewalk counselors, while they are tolerated within the targeted zone, from communicating a message from a normal conversational distance or handing a leaflet to people and...

Justice Ginsburg: What was the distance, Mr. Sekulow?

It was more than 8 feet.

Mr. Sekulow: That's correct.

It was 15 feet there.

I don't think the difference between 15 feet and 8 feet would make the constitutionality any different.

The standard is still the same.

You cannot display or hand out a leaflet, say, to someone 8 feet away without, again, asking for consent.

It was in Schenck this Court said that the leafleting and commenting on matters of public concern are protected speech, especially on traditional public forum.

Chief Justice Rehnquist: But the... but the distance must make some difference, Mr. Sekulow.

Perhaps the difference between 8 feet and 15 doesn't, but if you got down to 3 feet, for example, it doesn't seem to me there's any message you can't communicate at a distance of 3 feet.

The... the distance requirement would impede you.

Mr. Sekulow: Well, interestingly in this particular case, the statute does prohibit impeding, blocking, or crowding, section 2, which is not challenged.

And I don't think, Mr. Chief Justice, that it's simply the location being 2 feet.

You could be 2 feet next to someone, as I am with co-counsel, and... and not cause any impeding.

You could be 1... about 5 feet in front of somebody and block them.

So, I don't think it's necessarily just distance.

It's location as well, and... and this is distribution of literature.

Justice Souter: It's not just impeding.

Justice Scalia: It's also intimidating.

It's also threatening.

I... I suppose you would acknowledge that... what about 2 inches?

I mean, you know, going nose to nose to someone, thrusting your... your head right in their face.

Certainly that could be prohibited.

That's intimidating behavior.

Mr. Sekulow: Well, Justice Scalia, this Court has recognized that when it comes to public debate, that it can be robust.

I think if someone is 2 inches away from somebody and they're blocking access, they should be violating section 2.

Justice Stevens: No.

Justice Scalia: They're just 2 inches away and not blocking access.

They just come up and thrust their... their face right in front of me, just like this.

Mr. Sekulow: I don't... first... first of all, this would not... that action would not violate the statute because this statute, section 3, does not prohibit simply an approach.

It is an approach with speech, and it's the speech that is the violation.

The way the statute works... and again, it's on page 64a and 65a of the petition appendix in its entirety... it states that no person shall knowingly approach another person within 8 feet for the purpose... unless there's consent, for the purpose of displaying a leaflet, displaying signs, handing out a leaflet, or for engaging in specific oral communications, oral protest, education...

Justice Stevens: Have you... I don't think you've answered the question.

Supposing it said 1 foot.

Would that be bad too?

Mr. Sekulow: I... I think it suffers from the same constitutional problem.

I... I don't think it's...

Justice Scalia: It would be the same, okay.

Mr. Sekulow: Justice Stevens, I don't think it's simply the location because you could be 6 inches away from someone and not be blocking them at all.

You could be 3 feet and block somebody.

Justice Scalia: How about an eighth of an inch?

An eighth of an inch?

Mr. Sekulow: Justice Scalia, I... I wouldn't even want to give you the eighth of the inch.

Justice Scalia: Really, your client holds some very unreasonable territory.

Mr. Sekulow: I... I don't... I don't think so because this is... this is speech on a public forum, and if you're blocking somebody, that... that's a different story.

Chief Justice Rehnquist: But speech on a public forum, the traditional concept is, you know, there's somebody on a soapbox and a bunch of people gathered around them, not that you're one on one with someone an eighth of an inch away.

Mr. Sekulow: I... I think leafleting, Mr. Chief Justice, does require close contact.

When someone distributes a leaflet, usually it's with a hand extended which if you were, by the way, 8 feet away from this particular person you were approaching, you'd violate that bubble with... with...

Chief Justice Rehnquist: Well, in Abrams against United States, they threw them out of a second story window... the leaflets.

Mr. Sekulow: Yes, and I... I take it, when it landed on the streets, it would be... have been protected speech at that point.

[Laughter]

Justice Scalia: Would you acknowledge, Mr. Sekulow... would you... no, I gather you would not acknowledge that it would be reasonable to have such a law which limited the bubble to a distance which is inherently intimidating.

You just... you just don't acknowledge that there's any distance at which you can talk to somebody which is inherently intimidating.

Mr. Sekulow: I think that the danger in that is, because it's so specific on facts and circumstances, in the context of a statute like this, that if the concern that's being addressed is access or blocking, the way to handle it... the State of Colorado did it... and that is section 2.

A person commits a class 3 misdemeanor.

It's the same offense.

7 months in jail.

If you obstruct, detain, hinder, or impede.

I would take it if you're an eighth away...

Justice Scalia: I'm not obstructing, detaining, hindering.

I'm just intimidating.

I'm just... I'm just intimidating.

What if I... my nose touched your nose?

Oh, that would be okay even though I'm...

Mr. Sekulow: No.

It probably would be an assault at that point.

Justice Scalia: What makes that okay?

Mr. Sekulow: But under the statute...

Justice Scalia: What makes that okay?

Mr. Sekulow: Because of speech activity.

This... and interestingly, under your example, if you came up to someone or a protestor came up to someone and engaged in very intimidating facial expressions and made very intimidating gestures, they don't violate this statute, but the petitioner here, Jeannie Hill, if she goes and approaches someone to hand them a leaflet or to engage in quiet conversation, a counseling, she violates the statute.

So, the intimidating conduct does not violate the statute.

The petitioner handing out a leaflet...

Justice O'Connor: Well, but you... you certainly can convey anything you want to convey orally from a distance of 8 feet.

It's just not difficult.

You can speak in a normal conversational tone and be heard fully.

And to distribute a leaflet, it doesn't matter if you're 6 inches away or 8 feet away, the person receiving it, in order to receive it, has to accept it.

Mr. Sekulow: That's correct.

Justice O'Connor: And so, this isn't some unusual provision.

Mr. Sekulow: But I... I think, Justice...

Justice O'Connor: You don't... you don't say that a person must accept the leaflet.

Mr. Sekulow: No.

They have absolutely... they do not have an obligation to accept it.

But I think what... Your Honor, Justice O'Connor, what you wrote in Kokinda... and that is people that live in metropolitan areas know that one need not ponder the contents of a leaflet to mechanically take it out of someone's hand or, for that matter, to reject it, but it's that mechanical taking out of someone's hand.

Traditional leafleting on public sidewalks, is the kind of situation where someone is out there approaching people.

People will come up and take it.

8 feet away is the same prohibition as a restriction on speech.

Justice O'Connor: Well, if the person to whom it's offered wants to take it under this statute, they can and will.

I mean, it's just...

Mr. Sekulow: And the same...

Justice O'Connor: And it would be the same if it were 1 foot or 8 feet.

Mr. Sekulow: And it... the same argument could have been and was made in Schenck, and this Court said there 15 feet was still a problem because the zone floats.

And it does, Justice Breyer...

Justice Souter: Mr. Sekulow, on... on that, I understood you to answer Justice Breyer's question by saying that the stationary speaker, so-called, could not even station... in a stationary position offer leaflets without violating the statute.

Did I understand you correctly?

Mr. Sekulow: If you're standing still and you're in... within that 8-foot zone before someone else is, you...

Justice Souter: I'm standing still and somebody...

Mr. Sekulow: Approaches you?

Justice Scalia: gets within 8 feet.

Mr. Sekulow: It's... that's correct.

That's not a problem.

It's exactly the situation...

Justice Souter: So, I can say to that person, will you take a leaflet, or just hold the leaflet out.

Justice Kennedy: No problem.

Mr. Sekulow: If you're there first.

Justice Breyer: Pardon me?

Mr. Sekulow: If you're there first.

Justice Souter: If you're there first and you're stationary...

Mr. Sekulow: Absolutely.

Justice Breyer: you can do that.

Mr. Sekulow: That operates exactly, Justice Souter, as the no-approach zone in Madsen.

Justice Breyer: Now, why then being that... if that's the case, what's exactly the problem?

I'm not just saying another case.

I'm trying to understand what the problem is.

I'm standing here.

I plunk myself down on the sidewalk in front of the abortion clinic.

Anyone who's walking into that abortion clinic has to pass me, and I simply hold out the leaflet.

Now, if a woman wants the leaflet, she'll take it, but if she walks around me, now she doesn't want it.

So, what's the problem if I can stand still, hand it out just like this, and she'd have to walk around in order to avoid taking it, but she's free to walk around under this statute?

What's the problem?

Mr. Sekulow: The problem is the assumption, Justice Breyer, that you're operating under is that you got there first, and if you got there first, you... and you stand still and someone approaches you and you're not blocking them... of course, the... the dichotomy of all this is, if you're standing still, you may well be blocking.

Generally protest activities, distribution of literature, speech, in the robust debate, people are moving, but if you're standing still and you're there first, it's not a violation.

But in Madsen, this Court dealt with exactly the same situation.

It was a no-approach zone, no physical approaches.

If you were there first, if you were standing still, it wasn't a violation.

And the Court in Madsen said that the consent provision alone invalidated the provision of the injunction in Madsen.

The same should apply here, especially since you have the combination of the floating zone in Schenck.

It does float.

If you're not there first, Justice Breyer, it does float and it floats.

You have to stay unless you have obtained consent.

You have to maintain that 8-foot distance.

And I think showing someone a Bible verse, the display of a sign, all of that type of activity which is more intimate in its communication...

Chief Justice Rehnquist: How practically?

I mean, it's not as if this were a parade, you know, of people marching double-file to get into the clinic where the question of whether you got there first might be very important.

I mean, certainly there are times when no one is coming to the clinic.

There a person has a perfect opportunity to get there first.

Mr. Sekulow: That's right, if they got there before the event opened.

But this statute, which is not limited to abortion facilities, which has the floating bubble zone, applies to everyone in that 100-foot zone.

It's not just...

Justice Breyer: Mr. Sekulow...

Mr. Sekulow: Yes.

Justice Stevens: May... may I just ask kind of a general question?

And I think it was the Heffron case, the Court made a reference to the importance of getting access to the willing listener and the willing recipient.

Now, I think you'd probably agree that this ordinance doesn't really restrict your ability to communicate with a woman who wants to receive your message.

It really does pose some limit on the leafleting to a woman who presumably doesn't want the leaflet.

Mr. Sekulow: Well, to anyone who doesn't want the leaflet.

It's not limited to people...

Justice O'Connor: Well, I understand that.

Mr. Sekulow: seeking access to or egress from the clinic.

Justice Stevens: So... so, you... you have... it's... there's kind of a dilemma, it seems to me.

You either have to assume that the... that you have a right to make the unwilling listener take the leaflet, which doesn't seem it would work in the real world...

Mr. Sekulow: You don't have the... you... you can't require someone to take a leaflet, but I think Heffron is a good example of this.

Justice Stevens: But... but you do have a constitutional right to give her an opportunity if she's a willing recipient, either the doctor or the... to have that.

And doesn't she have that... assuming it's a willing person interested in the... in the leaflet?

Mr. Sekulow: If there's... consent is given, there's no violation of the statute.

It's the requirement of consent, we think, which caused the problem.

In Heffron, which was interesting, of course, the Court said it was not a traditional public forum.

The sidewalks in front of these medical health care facilities, which could even be an ophthalmologist's office, the way the statute is written, has a provision in there that... it's very specific.

If you enter that 8-foot zone, you have to obtain consent.

In Heffron, the Court found it not to be a traditional public forum and said that...

Justice Stevens: But see, what I'm trying to suggest is that you have to be a willing listener if you're in the 8-foot zone.

And it seems to me if you're not a willing listener, you're not going to take the leaflet anyway.

Mr. Sekulow: It's... it's not simply leafleting.

I think it's the... also the oral communication.

Justice Stevens: Well, I'm just concentrating on the leafleting now because, it seems to me, that's your strongest argument.

Mr. Sekulow: Well, the... the way the leafleting works is usually, in a... in a leafleting situation, people are close, closer than 8 feet.

They're not asking may I... you know, this statute turns every literature distribution into a solicitation because you have to ask consent before you approach.

And interestingly, in Heffron the Court stated that, while finding it not to be a public forum, that in fact they did allow one-on-one, face-to-face communications to go on throughout the State fair without any restrictions.

That's absolutely...

Justice Scalia: Mr. Sekulow?

Mr. Sekulow: Yes.

Chief Justice Rehnquist: In Madsen, we said that an injunction would be judged by a more stringent standard than a statute, and here, of course, we... we have a statute, not an injunction.

Mr. Sekulow: That's correct.

Chief Justice Rehnquist: Yet, you frequently refer to Madsen as if the things were interchangeable.

Mr. Sekulow: Well, in this context.

Number one, our position is that this is a content-based prohibition on speech.

So, it would be a higher standard than the Madsen standard.

It would be strict scrutiny because of the specific limitations on oral communications that constitute protest, education, or counsel.

And also this Court in Madsen...

Justice Scalia: Why don't you talk about that one?

You've been just talking about your point that the mere... the mere consent requirement invalidates it.

You also contend that this is a... a content-based restriction.

How is that so?

Mr. Sekulow: Absolutely.

The prohibition here as... specifically on its... the face of the statute, section 3, requires consent if you're going to engage in specific oral communication: protest, education, or counsel

A prosecutor who's bringing a criminal accusation for a violation of section 3 would have to establish through the presentation of evidence what exactly was said to determine if, in fact, it constitutes protest, education, or counsel.

Justice Kennedy: Can you... can you tell me?

Suppose someone wanted to encourage a... a patient to get a particular procedure.

Would that be barred by the statute?

Mr. Sekulow: That... that's interesting.

We... we have thought about that, and if it constitutes a form of protest, education, or counsel, it would.

Justice Kennedy: It's... it's not protest.

It's... it's...

Mr. Sekulow: Encouragement?

Justice Kennedy: encouraging the person.

Mr. Sekulow: Oh, it... I think that that would not, but I think the State, if they were making an accusation, would probably say... they would argue that it may constitute a form a counseling, offering of guidance, the way they... they've drafted this.

But what is interesting here in that exact type of scenario, if a news reporter... say there was a protest going on at a particular health care facility, and a news reporter entered the 100-foot radius and then was going to approach someone, did not ask for consent, and asked a general question.

Justice Kennedy: How do you feel?

Mr. Sekulow: How do you feel?

What do you think about health care in America today?

Probably not counsel, education, or protest.

If that same news reporter were to approach a person again without consent and say something like Congress was considering changes to the health care laws in the United States allowing for private lawsuits against HMO carriers.

What do you think?

That's education and that would be a violation of the statute.

Justice Breyer: Well, but which is it?

I mean, I grant you it's... you may not have a good answer to this because I have a hard time with the cases on this one.

But it seems to me if they... if the State tries to write a... one that covers more than just abortion clinics and tries to go beyond just as you've said... you said, well, this is terrible.

It... it gets innocent things like what time is it.

But then if they try to be more narrow, you say, well, it's too... it's too... it's too... it's narrow.

I mean, either they didn't narrowly tailor it...

Mr. Sekulow: Which I think they did not.

Justice Breyer: or... or if they do narrowly tailor it, it's content discrimination.

Mr. Sekulow: And... and...

Justice Breyer: So... so, whenever the State would try to regulate anything, they'd fall into the one or the other.

Mr. Sekulow: Justice Breyer, I don't think so.

The State has argued that they're in the proverbial catch 22.

They've drafted a statute that we argue is overbroad and one that is content-based.

Justice Kennedy: Do you know of any precedent which defines narrow tailoring by whether or not it's content-based?

Mr. Sekulow: I... I think looking at it, no because the most realistic narrow tailoring case that fits this the Court found it to be content-neutral, which was United States v. Grace.

There's never been a statute, though, written like this.

Justice Ginsburg: Mr. Sekulow, I was reading your brief closely and trying to envision the statute that would be constitutional.

The Chief has reminded you that the Court has held that the statute, which is passed when it... we don't know who the particular people are, requires less rigid review.

So, reading... reading your brief, I had the impression that no statute, other than the one that bars obstruction, would do in your judgment, that you could not have a... a statute like Madsen or Schenck had an injunction.

You simply couldn't.

Mr. Sekulow: I think that's... that's a correct position.

That's the position we're asserting.

And the reason, Justice Ginsburg, that that's our position is that this is speech on a public sidewalk, and it does apply.

It's a statute.

And I think the difficulty is... and far be it for me to draft Colorado's statute...

Justice Scalia: Wait.

Justice Breyer: Go... go back for a second because certainly you would agree that you can write legislation in terms of categories like advertising or lawyer solicitation, counseling.

I mean, those aren't all unconstitutional, are they?

Mr. Sekulow: Well, the way Colorado has drafted it, I think it is.

Justice Kennedy: No, no.

Justice Breyer: But I mean, to talk about a category called advertising is okay, isn't it?

Our cases are filled with that.

Mr. Sekulow: Commercial speech would...

Justice Breyer: That isn't content-based because you...

Mr. Sekulow: That's...

Justice Breyer: treat advertising differently from... all right.

So...

Mr. Sekulow: Although it does bring up an interesting scenario here, Justice Breyer, and that is the way that this statute works... let's say someone talking about advertising, to take your example.

If someone was handing out discount pizza coupons on a public sidewalk in front... front of Denver General Hospital and failed to ask for consent before they approached someone to distribute them the free discount coupon, they violate this statute.

That's how broad the statute is written.

It prohibits...

Chief Justice Rehnquist: Well, you... you argue... my colleagues admitted you argue, on one hand, the statute is too broad and, on the other hand, it's too narrow.

I mean, that's like the old arguments we used to get here about the Establishment Clause.

If... if a... if the State tried to regulate the expenditure of funds for parochial schools, then it was said to be too much entangled, and there... under that line of thinking, there was nothing the State could do.

Are you saying, in effect, that the State can't draft a statute, any kind of a statute, to cover what it conceives to be this problem here?

Mr. Sekulow: No, I think the State can.

And... and, Mr. Chief Justice...

Chief Justice Rehnquist: Well... go ahead.

Mr. Sekulow: What I would... what I would have drafted if I was the... the State here...

Chief Justice Rehnquist: You were the State.

Mr. Sekulow: Yes, but I'm not.

[Laughter]

Is a statute that...

Chief Justice Rehnquist: That's why you should use the subjunctive.

Unidentified Justice: [Laughter]

Mr. Sekulow: Yes.

And in the... in the... in this particular case, the State's concerns, the asserted interests here are to prevent intimidation, crowding, and threatening conduct.

This statute does not do that.

They need to draft a statute that targets the precise concerns...

Justice Ginsburg: They have that statute.

Chief Justice Rehnquist: They have...

Mr. Sekulow: Section 2.

Justice Ginsburg: Yes, and I asked you before and you, I thought, were quite candid in saying that's all they can do.

Mr. Sekulow: I think that's...

Justice Ginsburg: section 2 and there's no other statute that would satisfy your test.

Mr. Sekulow: I think that... that...

Justice Breyer: It could not go beyond that.

Mr. Sekulow: because section 2 would satisfy my test, Justice Ginsburg.

Justice Ginsburg: Yes, but I asked you if there was any statute that tried to replicate...

Mr. Sekulow: What they've done here.

Justice Ginsburg: or controls the injunctions that we have permitted...

Mr. Sekulow: I don't think so, and let me clarify my position and the reason why.

I don't think so because in Madsen and in Schenck, despite the somewhat more rigorous standard that was given there... in Madsen and in Schenck, the concern over leafleting and uninvited approaches, even if they're peaceful being prohibited... the Madsen concern... the Schenck concern about literature distribution, both of those cases dealt with... the Court relied on Boos v. Barry in... in Madsen and Boos v. Barry and United States v. Grace in Schenck... were both statutory cases.

Those were not injunction cases, and it was the concern of literature distribution and... and one-on-one advocacy that was the concern.

Justice Ginsburg: But as I remember Boos at least, that was a one viewpoint.

You couldn't picket against the embassy, but you could... no... there was no prohibition on doing something they were of.

And here, the statute is written in neutral terms.

It says you can't counsel about either side.

Mr. Sekulow: And this Court...

Justice Ginsburg: You can't educate about either side.

Mr. Sekulow: Justice Ginsburg, the... this Court in Madsen and Schenck, in dealing with the issues, said that the injunctions were content-neutral and...

Justice O'Connor: Well, this... this statute makes me think, in a way, of the City of Renton case where the concern was the secondary effects of the conduct.

It was First Amendment activity, the adult theater.

Mr. Sekulow: I...

Justice O'Connor: But there were secondary effects being addressed, and maybe...

Mr. Sekulow: Justice...

Justice O'Connor: that's the situation here, that the... the State doesn't care on which side of the message it is, but is concerned about the secondary effects of intimidation... intimidating conduct near a medical facility.

Mr. Sekulow: If that's... based on your question and... and comment, Justice O'Connor, they need to draft a statute that prohibits intimidation, crowding, or violence which I think... or threatening conduct, which I think they did in section 2.

Justice Breyer: But we...

Mr. Sekulow: This isn't...

Justice Kennedy: we take the case, I think, on the assumption that Colorado has tried to do that and cannot enforce it if there are crowds.

The problem here is crowds.

And so, what they want to do is to have a... a zone where we know who is coming up to push or pinch or shove, and that's all they're trying to do.

Is that a... is that a fair assessment of what the purpose of the statute was?

Maybe they failed, maybe they... maybe they succeeded.

Mr. Sekulow: I think they set the purpose out of the statute in section 1, which states that the General Assembly recognizes access to health care facilities for the purposes of obtaining medical counsel and treatment that's imperative for citizens, that the exercise of a person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling.

To me that points very closely to content-based...

Justice Stevens: Mr. Sekulow, can I ask... I'm really seeking information here on your position.

I thought there was some tension between your quoting the engaging in oral protest, education, or counseling as being content-based and not viewpoint-neutral on the one hand and saying that those words would cover the delivery of a pizza solicitation.

Mr. Sekulow: The pizza solicitation would be the distribution of literature prohibition which applies to all literature distribution.

Justice Stevens: I see.

That is not... that is not content-based...

Mr. Sekulow: We... we think it's content-based from the standpoint that it provides an opportunity for... because of the prior consent requirement, to allow for content-based determinations.

But the distribution of literature prohibition is because of the prohibition of literature.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Argument of Michael E. McLachlan

Chief Justice Rehnquist: Very well, Mr. Sekulow.

Mr. McLachlan, we'll hear from you.

Mr. McLachlan: Thank you, Mr. Chief Justice, and may it please the Court:

The Colorado legislature acted to protect sick, disabled, and vulnerable people on their way to and from its hospitals and doctor's offices.

And it designed the statute to keep our...

Justice Scalia: Excuse me.

Just sick, disabled, or vulnerable people?

Justice Kennedy: Is that... is the only...

Mr. McLachlan: That's what I said, Your Honor.

Justice Scalia: It only protects those people?

Mr. McLachlan: No.

The statute was designed to protect medical patients who are often sick, disabled, and who are vulnerable...

Justice Scalia: But it doesn't cover just medical patients.

How many... what... what percentage of the people going in and out of... of these facilities do you think are sick... what was it... sick, vulnerable and... and whatnot?

Mr. McLachlan: No, Your Honor...

Justice Scalia: I mean, that's a very small percentage of the... of the universe covered by this thing, isn't it?

Mr. McLachlan: Your Honor, the... the statute covers all persons within 100 feet of a medical facility, and a great percentage of those people are... are either treating individuals who are sick and vulnerable and disabled or persons who are seeking treatment from these...

Justice Kennedy: Well, in... in that respect, how does this statute work?

Suppose there's a seven-story building and on the sixth floor there are doctors' offices.

On... on the... all of the other floors, there are other businesses.

I take it this statute operates with respect to anyone who engages in the prohibited activity outside the main entrance to the building?

Mr. McLachlan: The statute operates to the extent that it is covered, public sidewalk or a public way.

And so if there's a 20-story building...

Justice Kennedy: So, if...

Mr. McLachlan: a story of any type, it would be the entrance to the building which contained the medical facility...

Justice Stevens: So...

Mr. McLachlan: and the public right-of-way.

Justice Kennedy: So, with respect to all of the businesses in those buildings, the press, lawyers, business people, people engaged in manufacturing that might affect the environment, this statute happens to apply just because there's a doctor's office there.

Justice Breyer: Isn't that right?

Mr. McLachlan: No.

Yes, because there's entrance to a medical facility.

Justice Kennedy: It seems to me that that's... that that's whimsical and imprecise and inconsistent with our speech precedents.

Mr. McLachlan: Your Honor, it was... it's narrowly designed to affect only the 100 feet within a medical facility or a hospital.

Justice Kennedy: But we've just discussed the hypothetical in which it is not.

Mr. McLachlan: Well, if a doctor's office is contained within a... a private building, the statute would not be operative because it doesn't involve a public way or a public sidewalk.

The statute requires...

Justice Kennedy: I... I... my hypothesis is a private building that has an entry off a public sidewalk...

Mr. McLachlan: That's...

Justice Kennedy: which I assume most buildings do.

Mr. McLachlan: That's correct, Your Honor.

That would operate in those circumstances to the extent that it involves 100 foot of the entrance and a public sidewalk, and also I don't think, as... as ordinary course, Your Honor, that we would have a situation where persons would be protesting within the building.

Justice Kennedy: Sorry.

Justice Breyer: I didn't... I didn't pick this up in the briefs.

So, what is the definition of a medical facility?

If you have the... the Russell Building which is 20 floors high, and on floor 18 there's a doctor, and on all the other floors it's a lawyer, is the whole Russell Building a medical facility under this statute?

I mean, if that... if that's the problem with this, I'm surprised that I didn't pick it up in the brief.

Mr. McLachlan: The statute uses the term, Justice Breyer, health care facility, and it states that a health care facility means any entity that is licensed, certified, or otherwise authorized or permitted by law to administer medical treatment in the State.

Justice Breyer: So, I guess that... that floor 18 or... has office number 1806 is the medical facility.

Is the whole building a medical facility?

Mr. McLachlan: No, Your Honor, it would not be.

It's only as to the entrance of that medical facility.

Justice Scalia: Right.

The crucial provision is the entrance... is the entrance provision.

How does that read?

To what does the 100-foot restriction apply?

Mr. McLachlan: The provision states...

Justice Scalia: Within 100 feet of what?

Mr. McLachlan: Within 100 feet of a medical... of the entrance to a medical facility.

Justice Scalia: Of the entrance to a medical facility.

Now, do you consider that to be the entrance to the building and not the entrance to the... to the office in which the... in... in a large building the facility is contained?

Mr. McLachlan: Your Honor, the statute only operates within 100... of a medical... 100 feet of a... entrance to a medical facility and on a public sidewalk.

Chief Justice Rehnquist: Now, Mr.... Mr. McLachlan, in section 2 on page 65a, it uses the term health care facility.

You said medical facility.

Is that the word used somewhere else, or is that just a synonym for health care facility?

Mr. McLachlan: I believe they're synonymous, Your Honor.

And I... I read the narrow statutory definition of health care facility which is in the statute.

Chief Justice Rehnquist: Where... where you reading from?

Mr. McLachlan: I was... Your Honor, the best location of the statute is appendix to the Solicitor General's brief where the entire statute is set out verbatim on pages...

Justice Breyer: Is... am I... where... where does this issue that Justice Kennedy just raised fit in this case, that the reason that it's too broad is it would cover offices that are located within some large, downtown office building that don't have doctors in it?

Now, has that suddenly... what's your... what's... what's the reaction to that issue in the context of...

Mr. McLachlan: Your Honor, it's narrowly drawn because the statute only operates in conjunction with entrance to a medical facility and a public side-way or walkway.

So, if there's a public...

Justice Kennedy: I don't want to distract the Court on an issue that wasn't briefed, but it seems to me that this is troublesome and I would read the statute... and I thought... and I think that's your answer, that it applies to anybody on the... on the sidewalk of that building.

But the point... the reason I brought it up at the point that I did was it indicates that your opening statement, which is that this is for the... for the vulnerable and the sick, is not a ground on which we can sustain a statute.

The... the statute... there's nothing in the record that says there's a high percentage of these people that... that are on these sidewalks fit that category.

I think you would have to make a different argument to sustain the statute.

Mr. McLachlan: Your Honor, the statute is predicated upon a finding by the Colorado legislature that it is imperative to protect access to health care facilities and that the relationship between that... that location and a public sidewalk is the object of the... of the regulation.

Those two operating together...

Chief Justice Rehnquist: But...

Mr. McLachlan: are the circumstances in which it would apply.

Chief Justice Rehnquist: Mr. McLachlan, now as I recall in Madsen, it was a free-standing clinic.

You know, we had diagrams and so forth, and the... the clinic was the only operation in... in the building.

In Justice Kennedy's hypothesis, you're really... you're curtailing a lot of other activity that would otherwise take place that may be not at all related to the health care facility.

Mr. McLachlan: Well, Your Honor, again because the statute only operates as to a public sidewalk or... or way... public way, I think, as a practical matter, the statute operates outside the facility within... within a...

Justice Kennedy: But that's... that's the whole point.

There are all kinds of people with all kinds of views and all kinds of messages and all kinds of purposes on a public sidewalk.

Mr. McLachlan: That's correct, Your Honor.

Justice Souter: Well, Mr.... Mr. McLachlan, I thought a moment ago your answer to the 18-story building hypothesis was that the medical facility was the office up on... whatever it was... the 16th floor.

It was not the whole building.

Mr. McLachlan: That's correct, Your Honor.

Justice Souter: All right.

Now...

Mr. McLachlan: But the entrance is located in conjunction with the public sidewalk and the public way.

Justice Souter: So that if there is one doctor's office on the 16th floor, the whole sidewalk and entrance is subject to this regulation by the statute as if the entire building were filled with doctors' offices?

Mr. McLachlan: No, not as if, Your Honor.

It... it would constitute an entrance to the health care facility if the building contained...

Justice Souter: No, but you're saying that if there's a doctor's office on any floor of the skyscraper, that the entrance and the sidewalk is subject to regulation under the statute.

Mr. McLachlan: That's correct, Your Honor.

Justice O'Connor: Mr. McLachlan, if there's a...

Justice Stevens: May I ask if any Colorado judge or anybody in the legislature ever discussed this hypothetical?

Mr. McLachlan: No, Your Honor.

Justice Ginsburg: And it's not for you to say.

It's for the Colorado Supreme Court to answer that hypothetical, and they have not, have they?

Mr. McLachlan: That's correct, Your Honor.

That hypothetical has not been discussed by the legislature nor has it been discussed by the court.

Chief Justice Rehnquist: But if... if you're talking about a statute that abridges freedom of speech or is alleged to, it... it can't be vague.

I mean, we've... you've got to be able to tell from reading the statute just where it applies.

Now, you've given... given an interpretation and we've often accepted the statement of the State solicitor general in the absence of any decision from... from a Colorado court on the subject.

Mr. McLachlan: Thank you, Your Honor.

Justice Breyer: Is that the case that you want us to do, that we... we now accept as the... to turn this case on your interpretation of a matter that hasn't come up before I gather, and that you're saying officially in your role as a representative of the State that it does apply to an 18-story office building on the... on the sidewalk where there's nobody but one doctor up on the 18th floor and stops everybody else from speaking about anything?

Mr. McLachlan: I'm not... I'm not asking the... the Court to accept my interpretation.

I'm simply pointing out that the Colorado Supreme Court has not looked at this issue, but the Colorado Supreme Court has reviewed the statute otherwise and has upheld it.

Justice Breyer: Well, has the statute ever been applied...

Justice Scalia: You don't... you don't want us to accept the opposite interpretation either, do you?

Do... are you willing to say that it does not apply to the... to the entrance of a facility where there's a doctor's office on the 16th floor?

Mr. McLachlan: I think it does apply in conjunction...

Justice Souter: You think it does.

Mr. McLachlan: If it's... if it's in connection with a public way and a public sidewalk.

Justice Scalia: You think it does, and although you're not willing... you're not willing to say authoritatively that it does?

Mr. McLachlan: No.

Excuse me, Your Honor.

I... I didn't mean to use the word in a haphazard fashion.

I... there's no question in the position of the State of Colorado...

Justice Breyer: That it does.

Mr. McLachlan: that it applies to the entrance of a health care facility in connection with a public sidewalk or a public way.

Justice Souter: And that is so even if the health care facility on the 18th floor is more than 100 feet away from the sidewalk.

Justice Breyer: Vertically.

Justice Souter: Yes.

Mr. McLachlan: That's correct, Your Honor, because the focus of the statute is with 100 feet of the entrance.

Justice Souter: Has the statute ever been applied in the fashion you... you maintain it would apply?

Has there ever been a prosecution...

Mr. McLachlan: No, Your Honor.

As we point out in our brief...

Justice Souter: The answer is no.

Mr. McLachlan: there has never been a prosecution under the statute.

The statute...

Justice Souter: For anybody.

Mr. McLachlan: has never been enjoined.

There's never been a civil complaint for damages, nor has there been a criminal complaint filed pursuant to the statute.

Justice Stevens: But even in the case...

There's probably never been an abortion protest outside the Empire State Building either.

Mr. McLachlan: That's correct, Your Honor.

We don't also have the Empire State Building in Colorado.

[Laughter]

Justice Scalia: Is... excuse me.

Is this statute just addressed to abortion protests?

Is... is that...

Mr. McLachlan: To the contrary, Your Honor.

It covers all...

Justice Scalia: I didn't think it was.

Mr. McLachlan: all conduct of the subject matter of the statute which occurs within 100 feet of a health care facility.

Justice Scalia: It would be bad if it was addressed just to abortion protests, wouldn't it?

Mr. McLachlan: Absolutely, Your Honor.

It would violate content neutrality.

Justice Kennedy: So... so it applies to labor picketing?

Mr. McLachlan: It would apply to labor picketing under the circumstances present in this case if you were within 100...

Justice Kennedy: So, a labor organization has a different rule if it's in front of a health facility than it's... if it's in front of a manufacturing plant.

Mr. McLachlan: That's correct, Your Honor.

Justice Kennedy: That's... is that content-based?

Mr. McLachlan: No, Your Honor, it's not because again the purpose of the statute and the scope of the statute is to govern all... all forms of...

Justice Breyer: But I suppose the NLRB, if it turned out to be a labor problem, could preempt any effect of Colorado's State law in respect to the labor unions, couldn't it?

Mr. McLachlan: That... that may well be the result, Justice Breyer, that the operation of the Federal law would... would affect the statute that way.

Justice Scalia: What...

Justice Stevens: Except in the labor law, we said there are different rules apply to medical facilities than apply to other facilities.

Mr. McLachlan: That's correct, Your Honor.

In... and in those cases, the Court recognized that the... that the patients are entitled to consideration under... under the rule and that in this particular case our statute is also designed to protect the patients.

Justice Scalia: I'm curious.

You know, I'm sure there... there has been violence in... in some abortion protests.

Are you aware that there's been more violence in that context than in labor picketing, for example?

I mean, the number... the number of people killed or the number of people intimidated in in labor protests annually.

Do you think it's...

Mr. McLachlan: I'm not aware of that, Your Honor.

I am aware that...

Justice Scalia: I'm just wondering why... you know, why this is a... a great... this particular area is of... is of great concern to the... I don't know.

People going into supermarkets that are being picketed... are they... are they any less... what... vulnerable and... I forget what your other adjectives were.

It's curious that this need to protect the innocent and vulnerable from... from being approached is... is felt only in this one... one area.

Mr. McLachlan: Your Honor, the Colorado legislature, in its review of the statute, first of all, we've never employed the term innocent.

We've simply determined that they are ill, that they are vulnerable, and that they are, as medical patients, entitled to consideration under the statute.

Justice Scalia: I just wonder whether the statute is... is, you know, although facially applicable to anybody who... who approaches this kind of facility, I think... I think we know what it's aimed at, which is abortion protests.

And I just wonder what justification there is for singling them out as being particularly intimidating as opposed to, let's say, labor picketing.

Mr. McLachlan: Your Honor, what the statute singles out and what the statute focuses upon is the approach in a... in a circumstance which can arise and become, as this Court recognized in... in the Schenck case, a constructive obstruction.

Justice Stevens: In other words...

Justice Scalia: You could... you could at least apply this rationale that you're defending here... you acknowledge that it could be applied to labor picketing.

If... if you had a similar finding by the legislature that labor picketing can be intimidating, you could require all labor pickets to... within 100 feet of whatever they're picketing, to stay 8 feet away from people.

Mr. McLachlan: I think the reason this has a different under... under-support than labor picketing is because it focuses solely on people within 100 feet of a health care facility.

Justice O'Connor: No.

Justice Scalia: I understand, but...

Mr. McLachlan: And that these people are entitled to special protection as found by our legislature.

Justice Ginsburg: And it would apply to labor people who were trying to educate the public about a labor union matter, people who were objecting to the facility charging too much money, people who were objecting to the facility's use of animals in experimenting.

They would all come under the same rules.

Mr. McLachlan: That is correct, Your Honor.

That is correct.

It... it would apply...

Justice Scalia: What...

Mr. McLachlan: It applies to both sides or all the multiple sides of the debate because it is a content-neutral statute.

Justice O'Connor: Would you tell us what this portion of the statute accomplishes that subsection 2 does not?

Mr. McLachlan: Subsection 2 only deals with, in our... in our view, physical contact between persons and...

Justice O'Connor: Well, it... it deals with knowingly obstructing, detaining, impeding, and so forth.

Now, it's... it's hard for me to know what this covers that that wouldn't also cover.

Mr. McLachlan: What this covers by the establishment of the 8-foot zone of separation is it allows a normal conversation to occur.

It is a speech inducing, it's a speech allowing, it's a speech endorsement, and that is... that is what this statute allows that the other statute doesn't address.

Justice Kennedy: But...

Mr. McLachlan: The other section just deals with physical... physical contact and... and physical obstruction without... without regard to the proximity between the... the willing listener and... and the demonstrator.

Chief Justice Rehnquist: We don't ordinarily think that to... to be able to speak you have to have State authorization or permission to speak.

The... the view is almost to the contrary that you can speak unless there's valid prohibition against speech.

Mr. McLachlan: That's correct, Your Honor, and I think it's important for us to point out again in front of this Court that from 8 feet away all forms of expression, irrespective of their content, are... are encouraged, allowed, and permitted under the statute...

Justice Scalia: Well, you... you could say that from... from 100 feet if you use a... you know, a bullhorn, but... but you can't... what the... what these abortion protestors, which is what this is directed at, generally do is... is... like to say, you know, my dear, have you really considered the consequences?

Are you going to shout this?

Justice Kennedy: My dear, have you really considered?

Justice Scalia: It's a totally different... it's a totally different enterprise when you do it from 8 feet away.

You can't really seriously say that there's no difference between approaching someone quietly, confidentially and speaking in... in that kind of a manner and shouting whatever you want to do from 8 feet away.

You... you really assert that there's no difference?

Mr. McLachlan: Your Honor, 8 feet is a normal conversational tone.

Justice O'Connor: It is?

Mr. McLachlan: Yes, it is, Your Honor.

In fact, in this courtroom...

Justice Scalia: My goodness, I... I rarely stand 8 feet away from somebody that I'm talking to.

I don't stand an eighth of an inch, and... and if that's what the distance was, I... I'd have no problem here.

But 8 feet?

Mr. McLachlan: I understand, Your Honor, but everybody that you communicate with is a willing listener.

[Laughter]

Justice Scalia: Oh, I... I think not.

Justice Kennedy: Don't be so sure.

Unidentified Justice: [Laughter]

Mr. McLachlan: But if I may, Your Honor...

Justice O'Connor: Don't be too sure.

Unidentified Justice: [Laughter]

Justice O'Connor: Don't be too sure.

Mr. McLachlan: Yes, ma'am.

Unidentified Justice: [Laughter]

Mr. McLachlan: But if I may, Your Honor, 8 feet is the precise distance... on an earlier occasion, we were permitted by the Marshal to measure the distances in this courtroom and 8 feet is the distance from this podium to the edge of the Court where the Chief Justice sits.

Justice Kennedy: Why isn't this a content-based statute if what it does is foreclose discussion of all the issues Justice Ginsburg was mentioning with relation to the health... health care system?

Mr. McLachlan: I'm sorry, Your Honor.

Justice Kennedy: Why isn't this content-based because it has... imposes a special burden on people who want to discuss issues, all of the ones Justice Ginsburg raised and more, HMO cost, et cetera, with reference to the health system?

Mr. McLachlan: It's not content-based because it allows... it takes no side on the debate.

It... it simply designates a...

Justice Kennedy: It forecloses all debate on that subject.

Mr. McLachlan: All... all debates on the... no subject.

Justice Kennedy: Well, on the subject of health care.

That's the whole justification for the statute or how the health care facilities are being operated.

Mr. McLachlan: Again, within the 100... 100-foot from an entrance of a facility, it allows completely for both uninhibited debate on all topics and it allows it if the listener wants...

Justice Kennedy: You're saying the statute is not content-based if it forecloses discussions on both sides of... of a particular subject.

Mr. McLachlan: It doesn't foreclose discussions, Your Honor.

Justice Kennedy: That's not my definition of content...

Mr. McLachlan: All discussions can occur from 8 feet, and if the... if the listener is willing to allow a... a person to approach... and again, one of the reasons for the 8 feet is a very common sense thing.

Justice Stevens: This would cover a protest over the death penalty as well as something to do with health care, wouldn't it?

Would this statute apply to somebody who wants to speak about the death penalty?

Mr. McLachlan: If it... yes, yes, it would.

Justice Stevens: So, I mean, not only point of view, but also a wide range of subject matter can be spoken in... in this kind of activity.

Mr. McLachlan: That's correct, Your Honor, if it meets the statutory definition, oral protest, education, or...

Justice Kennedy: If you're interested in health care issues, do you go to a health care facility or to the zoo?

Mr. McLachlan: I think probably you would go to your insurance carrier, if you have one, or you would go to your doctor and you would want to make sure that you would have access to your doctor because the Colorado legislature has provided that you will have that access through the operation of the statute.

Justice Scalia: Why... why wouldn't it suffice for the concerns of the State here to... to prohibit any intimidating approach by speech or otherwise?

I mean, what the State has prohibited here is speech.

It's the only thing that is prohibited is speech, not intimidation, not approaching.

Why wouldn't prohibiting an intimidating approach suffice?

Mr. McLachlan: Again, Your Honor, it's our position that there is no prohibition.

There is simply a minimal restriction, a minimal burden with inside of the 8 feet.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. McLachlan.

Ms. Underwood, we'll hear from you.

Ms Underwood: Thank you.

Mr. Chief Justice, and may it please the Court:

Under this statute, petitioners are free to say and to show anything they want to people near a health care facility.

They can shout or they can talk in normal tones.

They can offer literature and hold up signs and pictures that can be seen by their target audience.

They can station themselves where the patients will have to pass by much closer than 8 feet.

They just can't move toward the target without consent once the distance between them is 8 feet or less.

Justice O'Connor: Ms. Underwood...

Justice Scalia: If... if that is so reasonable, I assume it... it could apply... could be applied to normal labor picketing at any facility.

I mean, it's so reasonable.

You can say whatever you want.

You can... you think it would be constitutional applied to normal labor picketing?

Ms Underwood: No, not a general... not... not a general statute like...

Justice O'Connor: Why not?

Ms Underwood: Well, Colorado was responding to a particular need.

If the same need existed, which is...

Justice Scalia: Well, there's violence in... you... you unaware that there... that there have occurred instances of violence and intimidation in labor picketing?

Ms Underwood: Well, the Court has...

Justice Scalia: We can make the same finding they have here and say all... all picketing... you know, we apply it generally to all... all commercial establishments.

Ms Underwood: Colorado hasn't made that finding that... I don't think that finding would be supported.

And we do expect... we have a tradition of people being of rather more robust activity...

Justice Scalia: So, there is some problem about... about not letting somebody come closer than 8 feet.

You're not...

Ms Underwood: There is a First Amendment issue.

I don't think there's a problem with this statute.

Justice O'Connor: Not a real...

Chief Justice Rehnquist: So, you're saying, Ms. Underwood, that... you know, supposing Colorado on the basis of things that happened out there in the early 20th century... read Moyer against Peabody if you want to find out about it.

And there is violence in labor picketing.

We're going to impose this same regulation.

You say that would be judged by a different standard, or that it would... that it would fail, whereas this would succeed?

That's a very strange position.

Ms Underwood: No.

No.

What I meant to say was that if... if exactly the same findings and exactly the same need were found, then the same statute would be upheld.

But it...

Justice Breyer: Well, it might or might... wouldn't it be for the labor board in the labor case... the constitutional issue has to presuppose that the labor board made findings like Colorado and then, as a labor law matter, laid it down.

And the question would be is that unconstitutional if the labor board did it.

Is that right?

Ms Underwood: That's right.

Chief Justice Rehnquist: Well, why... why do you say that's right in this very peripheral discussion?

I mean, let's suppose Colorado passes a statute affecting labor picketing this same way and it is simply challenged on a First Amendment basis.

The labor board doesn't even get into it.

I take it that the answer you gave to my question is... is the correct one.

Ms Underwood: If Colorado made findings that... that there was a problem of violence and intimidation that arose out of one-to-one close... close approaches of the sort here and that was not capable of being dealt with in any other way, as Colorado had tried to do here and that a statute like this was the least restrictive or at least the... was the most appropriate way of dealing with the problem, then such a statute would be upheld.

There is no such finding and there is...

Justice O'Connor: Is it necessary that there be hearings and findings in order to sustain a statute like this?

Ms Underwood: It is necessary that the judgment be supported.

This Court reviews the judgments of legislatures with some deference when a factual matter is concerned and hearings and findings are helpful, but the Court has never prescribed a particular method for... for...

Justice O'Connor: But is there... there is Federal legislation, is there not?

Ms Underwood: Yes.

Justice O'Connor: A Federal Freedom of Access to Clinic Entrances Act?

Ms Underwood: Yes, there is.

Justice O'Connor: And how does that differ from this?

And was that factored into the hearings and the findings, the effect of that Federal act?

Ms Underwood: Well, this statute was passed before the Federal Access to Clinics Act was passed, about a year before.

Under the Federal Access to Clinics Act, an injunction can issue and, in at least one case that we've called to the Court's attention, has issued, that imposes a similar sort of restriction.

There are differences, obviously, between the way injunctions are judged and the way statutes are judged, but that some evidence that under the Federal statute it has been found necessary by courts, pursuant to the statute, to impose a no-approach... a small no-approach zone in order to protect against intimidation and... and threats.

This is not the floating bubble of Schenck or the no-approach rule of Madsen for several reasons.

As... as has been noted, the target can't create a violation here.

The distance in question is 8 feet rather than 15.

In Madsen, while there was a no-approach rule that the Court rejected, there was in the same case a 36-foot absolute ban which covered most of the approach to the... to the facility that the Court... that the Court upheld.

The matter... there was a discussion about whether this is content-based.

This Court has found many similar bans to be content-neutral.

I understand there's an argument that there is some speech that's covered and some not.

But the Court in Grace held that the ban on displays was content-neutral; in Heffron, that the ban on demonstrating... that the ban on distributing written materials was content-neutral.

And in fact, in Schenck and Madsen, it found that those injunctions were content-neutral.

Justice Scalia: Excuse me.

In the two cases you mentioned, did those bans refer to the content of the speech as this one does?

It's only that speech that educates, that counsels, and so forth.

Ms Underwood: The ban in Grace around the Supreme Court is on flags and devices that call attention to an organization, a movement, or... there clearly... there's a communicative requirement there that's quite similar to this.

Presumably a work of art on a flag would not qualify.

And the bans in... in Schenck and Madsen, the ones that were upheld, as well as the ones that were struck down, were on demonstrating, which again is... is essentially what this language captures.

And on the question whether we can look behind the... the words to its purpose, Justice Scalia, you spoke about the purpose of this.

First of all, the clear purpose of the Colorado legislature was to reduce the risk of violence and intimidation at health care facilities, not just at reproductive health care facilities and not just from those with one particular viewpoint.

While it's true that the anti-abortion protests generated much of the activity that led to the statute, the legislature was clearly aware of and concerned about both reciprocal violence by pro-abortion protestors...

Justice Kennedy: If there were a sudden interest in the automobile industry, could Colorado have these speech regulatory zones around every auto dealership?

Ms Underwood: This isn't a... first, if exactly the same findings were made, obviously, it seems to me...

Justice Kennedy: You don't like that term speech regulatory zone?

That's what this is.

Ms Underwood: No.

It's an approach regulatory zone, and I'd like to take issue with this...

Justice Kennedy: But what about the hypothetical?

Approach regulatory zone?

Ms Underwood: Yes.

What this statute prohibits is moving in on somebody.

It doesn't...

Justice Scalia: It's not an approach... you can approach as close as you like so long as you don't speak.

Ms Underwood: No, that's not right.

You have the purpose...

Justice Scalia: It's only the person who approaches to speak or to... or to hand a leaflet...

Ms Underwood: With... with that...

Justice Scalia: who is prohibited.

Ms Underwood: With that purpose.

Actually I'd like to just on the words of the statute... what has to happen is an approach.

The... the advocacy aspect of the statute is the purpose.

You don't have to get as...

Justice Scalia: Approach with the intention of.

Ms Underwood: With the intent.

You can approach without intent...

Justice Kennedy: Right.

Justice Scalia: With the intention of speaking.

Ms Underwood: without getting to the point of speaking.

Justice Kennedy: Or you could do this just for auto dealerships...

Ms Underwood: If there were...

Justice Kennedy: or law offices.

How about lawyers?

Any law office?

No.

Ms Underwood: If there were a problem...

Justice Kennedy: And what I'm... what I'm trying to find out is if this isn't a basis to say that this is content-controlled and not content... that obviously underlies the question.

That's what I'd like you to address.

Ms Underwood: No, it's not content control.

It is facility protective.

There is a problem at health care facilities, a problem of intimidation and violence, that Colorado...

Justice Kennedy: Because of the message that goes on there.

Ms Underwood: No.

Actually with respect to a great many messages, although there's one that perhaps is more common than others.

There is a problem.

The legislature is not required to act with respect to problems that don't exist.

And if you're hypothesizing a world in which people are intimidating people from buying cars by coming up close to them in their face and... and showing them pictures of automobile accidents, then perhaps Colorado would want to do something and could do something like what it did here, which is to permit them to show those pictures and to permit them to give those messages, but to require them not to move in on somebody closer than 8 feet.

Justice Scalia: Ms. Underwood, what about... what about the consent requirement?

Now, you know, we... we allow people to prevent unwelcome speech in their homes.

You can cancel, you know... require mail not to be delivered.

You can have a city ordinance saying I don't want any... you need consent before hawkers can come to the door.

But in the public forum outside in the street, can... can we have a law that... that enables people to... to turn off unwelcome speech?

Ms Underwood: Not to turn off unwelcome... may I answer, Mr. Chief Justice?

Not to turn off unwelcome speech.

To repel unwanted close approaches.

This is about a close approach and not about speech at all.

Rebuttal of Jay A. Sekulow

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Sekulow, you have 3 minutes remaining.

Mr. Sekulow: Thank you, Mr. Chief Justice.

With regard to the Free Access to Clinic Entrances Act, Justice O'Connor, it specifically exempts First Amendment activities.

With regard to reliance on United States v. Grace, on page 176 of this Court's opinion... I'm quoting... we also accept the Government's contention not contested by appellees about the content of the speech.

We are contesting that here.

Justice Ginsburg: Mr. Sekulow...

Mr. Sekulow: Yes.

Justice Ginsburg: am I wrong in thinking that there... there's legislation that establishes quiet zones around hospitals, around schools, which would be much more restrictive than what's involved here, based on the character of the facility?

Is that not so?

Mr. Sekulow: You often see signs even that say quiet zones.

I think the difference is here a silent approach without any words to distribute a leaflet requires consent.

Justice Breyer: Well, is it...

Mr. Sekulow: And it's not a quiet zone here that they're talking about.

There's nothing... no prohibition here that says you can't talk loud.

Justice Breyer: But... but given the fact that there is a history of women in a very vulnerable, emotionally charged state, in a difficult physical condition, and given the fact that using words like you can't harass and you can't... whatever those words are in section 2... are very hard to interpret, could you say that having 8 feet as the limit between my fist and your face, so to speak, helps the First Amendment?

It makes clear what you can do and what you can't do...

Mr. Sekulow: No.

Justice Breyer: rather than every time getting into an argument about what constitutes harassment.

Mr. Sekulow: Justice Breyer, this case... this particular statute is a criminal statute.

It requires precision of regulation.

An 8-foot prohibition here requiring consent we believe violates the First Amendment.

There is not a First Amendment health care exception.

I am sure...

Justice Breyer: That's my very point.

Why isn't it more precise to say 8 feet than to say in each case we'll... we'll litigate whether my waving my arm or something like that did or did not constitute harassment?

Mr. Sekulow: I think for the exact same reason that this Court in Madsen and in Schenck rejected the health care exception to the First Amendment.

I think it points to the situation in NAACP v. Clayborne Hardware.

I'm sure the... the gentleman that ran Clayborne Hardware would have rather not had those protestors out in front of his stores.

And maybe he had a heart condition, and if he did, I don't think you can carry a sign that says I've got a heart condition, don't approach you.

Justice Ginsburg: But, Mr. Sekulow, isn't there something different about a hospital, I mean, wholly apart from the question of abortion clinics?

Haven't there been restrictions on speech activity around schools?

I mean, mostly the problem was not that they... you couldn't have the restriction, but you couldn't favor one speaker.

Mr. Sekulow: But this Court has also said in those same contexts... Mr. Chief Justice, my time is expired.

Would the Court like me to respond?

Justice Stevens: Briefly.

Mr. Sekulow: The difference is there the question was was the conduct going to aggravate what was going on inside, and because the courts there gave a narrowing construction that only when it... it violates what's going on inside or causes a problem, that there would be a violation.

That's not the case here.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Troxel v. Granville - Oral Argument

Fri, 09 Jan 2009 14:50:16 +0000

Case:

Troxel v. Granville

Media File:

99-138_20000112-argument.mp3

Related Transcript:

1999_99_138_argument.xml

Transcript:

Argument of Mark D. Olson

Chief Justice Rehnquist: We'll hear argument now in Number 99-138, Jenifer Troxel v. Tommie Granville.

Mr. Olson.

Mr. Olson: Mr. Chief Justice, may it please the Court:

We present two questions today, and the advance of theory for the resolution of the case before this Court.

The first question is, was the Washington State supreme court correct when it held that a visitation order to a person other than a parent may not be granted absent a showing of physical or mental harm to the child, and the other question is, should the Court at this time resolve all of the constitutional questions that could be raised by any other orders, other than the Troxel order before this Court?

The answer to those questions are, we believe, the court did not make the correct decision below requiring a greater standard by a specific showing of substantial harm to the child than is already required by the best-interests-of-the-child standard, and we also ask this Court to leave for another day the resolution of the constitutional questions that may be raised by other visitation orders not before the Court.

Justice O'Connor: Mr. Olson, it's not clear to me just what the Washington court included in the word harm.

Can harm be stress to the child because of the severance of a substantial relationship?

Is that harm?

I... it's not clear to me how we even define the term.

Mr. Olson: The term harm is fuzzy.

There... that is a problem.

Is it... and I agree, is it a little bit of harm?

Is it a great deal of harm?

Do we look for bruises if visitation isn't ordered, or...

Justice O'Connor: It surely must mean more than physical harm, but what other things fall within it, do you think?

Mr. Olson: Harm to the child.

It is difficult to put one's finger on what harm is.

Best-interest-of-the-child standard subsumes many factors that the court considers.

Justice Kennedy: Can you argue that best interest of the child like, not being... that the child is harmed if his best interests are not being served, so that it's just really the flip side?

Mr. Olson: Well, we believe that the rule of the Washington supreme court requires a greater harm, a more specific showing, although that term is fuzzy, as Justice O'Connor points out, but in the best-interests-of-the child standard, there is harm considered to the child whether visitation is ordered or not ordered.

Chief Justice Rehnquist: I always considered the supreme court of Washington agreed with what you just said.

I had thought that the State statute said best interests of the child, and the supreme court of Washington said that you can't get a third party visitation rights as against the parent unless you can show harm, which suggests that they thought the two might... were mutually exclusive.

Mr. Olson: That harm and the best interests...

Chief Justice Rehnquist: That... yes.

Mr. Olson: standard were exclusive?

Chief Justice Rehnquist: That the best interests standard would cover a much broader spectrum than the harm standard.

Mr. Olson: If I understand the question correctly, our concern is that the focus of the best interests of the harm standard would over-emphasize that and create a hurdle that would be greater, or higher, or more difficult to prove and would, particularly in the case that is before this Court, would effectively bar visitation for the Troxels...

Justice Ginsburg: But Mr. Olson, isn't that some...

Mr. Olson: when it's very slight.

Justice Ginsburg: Mr. Olson, isn't that something for the Washington supreme court to spell out case by case?

After all, it's not our job to say what, under a State law, harm means, because that definition can come over time, the way law generally develops, case by case.

Mr. Olson: And that is why the theory that we advance to the Court is that the magnitude of the intrusion be balanced against the constitutionally required justification, and in this case we believe that best interests of the child is sufficient for the order, because the intrusion in our case is slight.

It's just 25.5 hours a month with the grandparents, and we believe that it is a State issue.

Chief Justice Rehnquist: But you have to show, don't you, that at least this visitation order is constitutionally permissible?

The supreme court of Washington I guess struck down the entire statute, and the argument you make, which I think has some force to it, is that you don't lightly strike down an entire statute, and... but you do have, from your point of view to avoid that you have to show that there's at least some order that could be issued consistent with this statute which would not be unconstitutional, and... I think your problem, probably, is to what extent can a court intervene in the case of parents who are not harming the child to say that outsiders such as grandparents can have a court-ordered visitation right?

Mr. Olson: I'm not certain of the question to me, Mr. Chief Justice.

The State courts, as Justice Ginsburg asked, does set forth the best-interests-of-the-child standard that the trial court would then apply in any given case.

The intrusion in our case, in the Troxel matter, is very slight.

There's no constitutional infringement upon any religious belief, right to educate, or any other matter.

It is simply in the best interests of the child, as was stipulated at the trial court by the experts and by the mother.

Chief Justice Rehnquist: But you do have a line of cases not directly on point, but that cut the other way, I think.

That is, the parents, it's up to the parents to decide, you know, not just who has custody, how the kids are going to be brought up, who they're going to see.

Mr. Olson: Yes.

Chief Justice Rehnquist: Does this mean that next a great aunt can come in and say, well, you know, I want to take her to the movies every Friday?

Mr. Olson: Well, the line of cases held that any parental decision is not above government regulation, but a parental decision would be subject... I'm sorry.

State regulation would be subject to strict scrutiny of a parental decision in the area of religion or First Amendment, if I understand the question, but in this case it is not.

Justice Ginsburg: But also health and safety.

Isn't that... those cases say parents decide, but the State can regulate to spare the child from harm.

Mr. Olson: That is true.

Justice Scalia: And you say the State can regulate just whenever it's in the best interests of the child.

The parent says, no candy.

The State says, oh, that's unreasonable.

Kids ought to have some candy.

Mr. Olson: Well, the magnitude of the intrusion would be balanced against the...

Justice Scalia: Oh, it's very little intrusion.

Give the kid some candy once a week.

[Laughter]

Alternate Fridays, or whatever.

This is an enormous intrusion?

And you think the State can tell parents because that's in the interests of the child, according to the State, or according to one judge who sits as the agent of the State and likes candy?

Mr. Olson: Well, our...

[Laughter]

Our theory, Justice Scalia, is that all those other hypotheticals would be left for the State courts to work out as those instances arise, and...

Justice O'Connor: But do you really think that the State can have a statute as broad as this that says, any person at any time can march in and ask a court in the best interests of the child to order some kind of visitation?

I mean, this is a breathtakingly broad provision, is it not, and it's very expensive for parents to defend lawsuits if anybody can walk in at any time and file a court action.

Mr. Olson: Regarding the expense, Your Honor, there are two statutes in Washington that allow the court to award attorneys' fees on the basis of need and ability to pay, and that if there is any economic imbalance the court can address that.

Justice Breyer: Mr....

Justice Scalia: A need or an ability to pay, but I mean, let's assume these people lay out a lot of money but in fact, you know, they have it.

It's just money that would have gone to something else.

Mr. Olson: Well, Justice...

Justice Scalia: They're not impoverished.

It's just cost them $100,000 to defend this case.

Mr. Olson: Justice...

Justice Scalia: Is there any remedy for that?

Mr. Olson: Yes.

The attorneys' fees could be reimbursed if there was... if there was an imbalance, or intransigence.

There are a number of bases by which the court could address any complaints regarding...

Justice O'Connor: Well, let's get back to my question of the breadth of this statute.

Do you defend it, any person, any time?

Mr. Olson: I believe, Your Honor, that the best-interest-of-the-child standard is what controls, not the any person language.

Justice O'Connor: But wait a minute.

That means that some welfare caseworker can march into court and ask for some order.

Mr. Olson: Your Honor, of course that's not the record in this case, and...

Justice Souter: Oh, but Mr. Olson, unless you are prepared to accept something that broad, I don't understand what your position is in this Court, because as I understand it you are not here and you are not in the courts of Washington claiming a substantive due process right, exclusive of the statute, to have this visitation.

As I understand it, you are claiming a statutory right.

The courts of Washington have said that the statute is too broad, and they have declared the entire statute unconstitutional, and they have said, we're not going to narrow or sever, and I presume that's their business.

Therefore, it seems to me that, for you to get relief in this Court, we would have to hold that in every possible or reasonably possible application of that statute it was constitutional, because unless we hold that, Washington was perfectly proper in declaring the statute unconstitutional, and if you, representing grandparents, want to come into court and claim rights, you've either got to get a new statute, or you've got to claim a constitutional right of your own, which you're not doing.

Am I missing something in the posture of the case?

Mr. Olson: Well, the State court didn't strike down the statute because it was too broad.

What the State court did was, it struck down the statute because it said that there was a requirement of a substantial physical and mental harm to the child.

Justice Souter: Well, it mentioned that, but it also mentioned the breadth of the statute.

It said this statute, in effect, gives third party rights to the world.

That's number 1, and number 2, it does so on the basis of an improper standard.

Mr. Olson: I don't believe...

Justice Souter: And it seems to me that unless we are in a position to resurrect the statute, you really don't have a claim to make under the law of Washington, and you're not making an independent constitutional claim of your own.

Mr. Olson: There are three responses I have, Your Honor, and that is that the any person language admits that family law is complex, and the nature of families is so varied that it's impossible for us to...

Justice Souter: Well, it may be complex, but let me ask you this question.

Do you believe that any person walking in off the street, without any relationship by blood or marriage to the child, may, as against the parents' claim of the right to control the upbringing of their children, get a court order based simply on a best-interests-of-the-child standard?

Do you believe that anyone walking in off the street may do that, as against the parents' constitutional claim?

Mr. Olson: Your Honor, the cases that we have cited to the Court and in the appendix show that it is normally deceased parent... grandparents of deceased parents...

Justice Souter: That's not my question.

The supreme court of Washington read its statute as saying just what I... my question assumed.

Anybody can make a claim under the statute.

Do you believe that anyone, as against the parental claim of a constitutional right to control the upbringing of their children, is... may constitutionally get a... an order for visitation or some interference with parental rights solely on a best-interests-of-the-child standard?

Mr. Olson: The best-interests-of-the-child standard does restrict who may petition, and the any person language addresses those people who have relationships with the child or who has some meaningful reason...

Chief Justice Rehnquist: Mr. Olson...

Justice Souter: That's now what the supreme court of Washington said.

Chief Justice Rehnquist: Mr. Olson, I think I disagree with Justice Souter as to the standard you have to meet, but I think we're both focusing on the same kind of thing.

My understanding is that, unless you're talking about the area of the First Amendment, if a statute is to be stricken down on its face, as the supreme court of Washington did here, you must... the person supporting that must show that there are no possible applications of the statute that would be permissible.

So... but whether Justice Souter is right that you have to show that almost all applications would be permissible, or whether I'm right that you have to show just that an appli... I'm still not persuaded that you have shown even that the order in this case is... avoids constitutional difficulties.

You say that the intrusion is minimal, and there are no religious or discriminatory implications.

Is that the substance of the constitutional test that you seek?

Mr. Olson: The only claim by the mother was that it was her decision, and there were no other constitutional issues raised by her at trial or anywhere in the court.

Justice Scalia: Why isn't that enough of a constitutional issue, that it is her decision?

I...

Mr. Olson: Well, that would extend the line of cases in Yoder to give constitutional weight to any decision of a parent, in that they could go to school...

Justice Scalia: Such as whether the kind can eat candy or not.

Mr. Olson: Well...

Justice Scalia: I really thought that was the parents' call.

Mr. Olson: Whether the parents be able to go to school and dictate what ideas or people who are associated...

Justice Scalia: Yes, don't you think...

Mr. Olson: In public schools...

Justice Scalia: You don't think?

Mr. Olson: I do not believe so.

Justice Scalia: You don't think.

I see.

Justice Souter: Suppose...

Justice Scalia: Where do you get the notion that the best interests of the child is the standard somehow in the common law world?

We certainly use that where there's been a divorce or separation, and you have to decide between the two parents, but when it's not the parents involved, can you give me any cases where... it would be in the best interests of a lot of children to take them away from their parents and give them to somebody else, but the parents have rights in the children.

Mr. Olson: Well, two questions there.

The common law question is in our footnote, I believe it's 45, Roberts v. Ward from New Hampshire, and many other cases held that it was common law to grant that visitation right, and your other question was...

Justice Scalia: To grant visitation rights?

Mr. Olson: To a person other than a parent, to a grandparent.

There were common law cases cited...

Justice Scalia: No, but I... you're talking about best interests of the child as though that's the generally well-accepted common law rule for what courts can do with regard to children.

They can do whatever is in the best interests of the child.

I don't... I'm unaware that that's our general rule at all.

Where there's a dispute between the parents, that will be resolved in the best interests of the child, but where it's a dispute between the parents and someone else, you think common law courts just say, well, what's in the best interest of the child?

It seems to me they say, well, what do the parents want?

They don't want the kid to eat candy, the kid doesn't eat candy.

Mr. Olson: Well, the courts do look at many factors under the best-interest-of-the-child standard as well as the fact that in some cases the parents themselves are responsible for creating the relationships that now the child requires, and the child does, we assert, have some constitutional claim here, and the court should balance all the interests involved, not just the parents.

Justice Scalia: Why?

Justice Stevens: May I ask this question...

Justice Scalia: The child does not belong the court.

The child belongs to the parents.

Justice Stevens: Is that a question, or...

Mr. Olson: It's the welfare of the children that the State is interested in.

Justice Stevens: I don't mean to get into this argument between the two of you.

I don't know if there was a question or not.

[Laughter]

But I did have this question for you.

As I understand, one of the problems with this statute is anybody's standing, but is it not true that there are a lot of statutes out there that give grandparents standing, and relatives, and I'd just like to ask you, what is the standard that is applied in most of the statutes throughout the country?

Mr. Olson: In 48 States, the standard is best interests of the child and no substantial harm, physical or mental, is required to be shown.

Justice Stevens: So that if we were to invalidate this statute on the grounds suggested in the questioning, we'd probably invalidate 48 statutes.

Mr. Olson: 48 States, that's right.

Justice Souter: When you refer to the 48 statutes, were you referring to the 48 statutes that give rights to the whole world, or 48 statutes that give rights to grandparents?

Mr. Olson: There are approximately four statutes that include the provision, any person.

The other statutes do attempt to limit to siblings or step-parents or grandparents.

What our statute does is, it admits that we are unable to foresee how relationships may be generated between children and significant adults.

Justice Breyer: Tell me something about your case.

I don't want to hear about the law.

I want to know something about your case.

All right.

Now, suppose I think the Constitution doesn't permit people to wander in at random.

Even if it's good for a child to learn the accordion, an accordion player couldn't come in and say, I want to visit once a year, even if the interference is trivial, all right.

So I start with that, and I also think maybe you could make out a case that yours isn't that case.

You have something special going for you, so that if it's applied to you, maybe you could win.

Now, I don't want to hear about how minimal an interference it is.

It isn't much of an interference to play the accordion once a year, okay.

I want to hear what's special about your relationship in your case that could overcome some kind of special burden that might be imposed before somebody can come in off the street and start hauling mothers into court.

Is there anything in your situation that's special and, if so, what?

Mr. Olson: The special nature involved in our case is that the children's father, Brad Troxel, is deceased.

The children had a 2-year relationship with the grandparents, staying in the grandparents' home every other weekend, and there was a substantial relationship from the ages of 1 and 3 until the action was filed and the children were 3 and 5 years of age.

There is that relationship.

There is the requirement, we hope, that the memory of the children's father will be preserved in the... by the grandparents, and that the growth of the children will be enhanced by knowing the kinship in the family, where they come from, and that is a very, very significant interest for the State to have in terms of how our children develop and what occurs with regard to their growth.

In terms of the harm question, Justice O'Connor, when children are taken away, or where there's significant grief or loss, a lot of time that pain goes deep within.

It will not resurface until the children are older, and there is loss of adult relationships...

Justice O'Connor: Well, what you're saying is that the loss of a substantial relationship can constitute harm, in your view.

Now, we don't know whether the Washington State court would deem that as a possible kind of harm, I gather.

Mr. Olson: Well, they created a higher standard of harm that will be then applied to grandparent visitation cases, of which they are more numerous than these stranger cases, which have not been shown to exist, but the higher standard will be applied to cases where the intrusion is slight.

Justice O'Connor: Well, excuse me, I didn't find where the Washington court ever defined harm.

Would you show me where it did?

Mr. Olson: I do not believe it did.

Justice O'Connor: Okay.

Mr. Olson: I believe that the standard that they used is not defined.

Justice O'Connor: Well, so as I said, we don't know what the State of Washington will do in interpreting the concept of harm.

Mr. Olson: And that's why our theory is that we leave for another day the difficult cases that the Court is raising and resolve this case.

Justice Breyer: All right, but are you satisfied... that is, suppose we were to say from your point of view that of course you must show a substantial relationship in the past, plus harm.

Now, some harm and loss of a substantial relationship could count as harm.

If it were that, then what happens to your case?

Mr. Olson: You mean, if that were the standard to be...

Justice Breyer: We're setting a constitutional standard.

We're not running public relation... domestic relations law, so suppose the outside limit were, the State's free to do this if it shows harm to the child, that loss of a substantial relationship could count as harm.

Mr. Olson: That could be a standard.

We're not asking the Court to adopt that standard for resolution of this case, because the best-interests-of-the-child standard was sufficient under our theory to resolve this case.

Justice Breyer: If that were the constitutional standard, what would happen to your case?

Would you lose?

Mr. Olson: No.

I believe that there is a substantial relationship, and there would be evidence of harm.

However, the appellate court and the supreme court never got to that question because we never developed it, and at the trial court it was stipulated that it was in the best interests of the children to visit their grandparents.

The only question before the trial court was what was the duration of the harm.

Justice Ginsburg: Mr. Olson, may I ask you to go back to the 48 States that you claim... it wasn't my understanding that those States simply say best interest, period, and also it's not my reading of the Washington supreme court decision that they passed on the constitutionality of that other provision that does set standards, that doesn't have just some broad best interest, but doesn't set standards that can be applied by judges.

Mr. Olson: Well, most of the States state that the best interests of the child is the touchstone, and that other factors may be considered, and it is the best-interests-of-the-child standard including but not limited to the following factors.

In family law cases, because they're so complex, the facts and circumstances dictate the factors that we consider in a trial, and I do not believe...

Justice Ginsburg: But is there any State legislature that has said, just best interests without any guidance at all about what comprises...

Mr. Olson: Some States set forth factors as guidance.

Justice Ginsburg: How many are like Washington that don't... that say best interests, period, nothing else?

Mr. Olson: I would have to look closer at that.

Kentucky has an any person statute, as does Connecticut, and Washington and California.

As to whether or not there are any standards or factors set forth in those statutes, I'd have to look at that again.

Justice Souter: Mr. Olson, let's assume that this Court at least agreed with you to some extent and said yes, given the special relationship that grandparents may normally establish with their children, some heightened standard less than the harm that might be necessary for the State to move in would suffice to justify overcoming the parents' constitutional claim of their rights to bring up the children without interference.

Let's assume that we held that was the law.

Wouldn't you be faced with this, nonetheless.

The case would go back to the State of Washington, and the Washington supreme court would say, well, we certainly accept the U.S. Supreme Court's view of the limitations on the parental Federal constitutional rights.

We accept that, of course.

However, we don't have a statute here any more.

The statute is unconstitutional.

It's unconstitutional regardless of its application to grandparents.

It's unconstitutional because, as we have already explained, its great breadth and its low statutory standard with respect to other third parties, and therefore what we've got is a very interesting statement from the Supreme Court on what the law is.

But you have come into court, grandparents, with a statutory claim, and we have declared the statute unconstitutional because of its many unconstitutional applications regardless of its application to you.

Therefore, we can't give you any relief.

Would that happen if the case went back to Washington, or wouldn't it?

Mr. Olson: If I understand your question that would, I believe, be a facial attack on the statute that shows that it...

Justice Souter: Well, isn't the supreme court of Washington entitled to decide how broad an attack on its own statute it will allow?

Mr. Olson: It would need to apply the standard that no case exists under which the statute...

Justice Souter: Why does it have to apply that?

That's the standard that we apply, or it may be the standard that we apply...

[Laughter]

in Federal constitutional challenges to Federal statutes, but if Washington as a matter of State law wants to entertain broader challenges, and if Washington, as a matter of State law, says we don't have to narrow our statutes in order to try to save them, isn't that, or are not each of those decisions perfectly within the competence of the supreme court of Washington?

Mr. Olson: It may be, Your Honor.

We would argue again that...

Justice Souter: But if those two decisions are within the competence of the State of Washington, then we could send this case back with a ruling on grandparents and there still wouldn't be any Washington statute, and you'd still lose in Washington, wouldn't you?

Mr. Olson: Well, that may be.

Justice Souter: Yes.

Mr. Olson: I'd like to reserve the rest of my time.

Thank you.

Argument of Catherine W. Smith

Chief Justice Rehnquist: Very well, Mr. Olson.

Ms. Smith, I hope you will address yourself to the question that we've also addressed to Mr. Olson, whether the... what exactly was the visitation order in this case?

Was it one weekend a month?

Mr. Smith: Yes, Your Honor.

Chief Justice Rehnquist: Whether an order of one weekend a month on the facts of this case violates the Federal Constitution.

Mr. Smith: Yes, Mr. Chief Justice, and may it please the Court, I will do so immediately.

I believe that this visitation order in this case was unconstitutional.

The order provided for one weekend a month from 4:30 Saturday until 6:00 p.m. on Sunday.

It also provided for notification provisions regarding the girls' activities to the grandparents, for what amounted to a court-ordered birthday party on the grandparents' birthdays, and it also provided how the parties would address the children, or one of the children, in which there was a dispute.

The order violated...

Chief Justice Rehnquist: Did you say address, or dress?

Mr. Smith: Address.

Chief Justice Rehnquist: Address.

Mr. Smith: Address.

The...

Justice O'Connor: You mean the name, the use of the name?

Mr. Smith: Yes, that's true.

Justice Ginsburg: And a week in the summer, was it?

Mr. Smith: There was a week in the summer, also.

The order violated the mother's rights to make these decisions absent evidence that the children were being harmed, and Justice O'Connor, in response to your question about what constitutes harm, in fact the Washington courts have been working on these issues for many years.

They have addressed harm in other circumstances.

In the case In re Sumey, which is in the briefs, they talk about the fact that they protect the physical and mental health of children.

This Court has also talked about the fact that the State can only come in under circumstances in which the health and safety of children is being jeopardized.

Chief Justice Rehnquist: When you say this court, you mean the supreme court of Washington?

Mr. Smith: No.

I mean the Supreme...

Chief Justice Rehnquist: This Court.

Mr. Smith: This Supreme Court, in Yoder, and in Santosky both the majority opinion and Justice Rehnquist's opinion in dissent talk about the fact that the State will step in when harm to the child is being threatened.

That is, in fact, the proper standard under our Constitution.

Justice Breyer: Suppose the divorce...

Justice Stevens: Under that standard there would be no relief for a grandparent even if the visitation order was 20 minutes every 6 months.

Mr. Smith: That's correct, Your Honor.

That decision...

Justice O'Connor: Now, there are a number of statutes around the country in different States that specifically address the right of grandparents to seek visitation orders, are there not?

Mr. Smith: Yes, there are.

Justice O'Connor: How many States have that kind of legislation?

Mr. Smith: I believe it's 38, but I'm not exactly sure on the count.

Justice O'Connor: So apparently, in your view, all of those are unconstitutional?

Mr. Smith: No, Your Honor.

Justice O'Connor: Out.

Gone.

Mr. Smith: No.

Justice O'Connor: Why?

Mr. Smith: Because first of all there may be circumstances under which a grandparent visitation statute could be enacted, and in many of those States...

Justice O'Connor: Well, we have 38 of them.

Now, as I understand your view, most of those are unconstitutional.

Mr. Smith: No.

Justice O'Connor: If they speak in terms of the right of a grandparent to seek visitation based on best interest, in any event.

Mr. Smith: If they rely on a strict best interest standard, without creating a burden of proof and a presumption that the parent is, in fact, acting in a child's best interests, yes, I do believe those statutes unconstitutionally impair a parent's right to make decisions...

Justice Stevens: Yes, but what if...

Mr. Smith: about their child.

Justice Stevens: they acknowledge those presumptions but do not have a requirement of showing harm?

Mr. Smith: Excuse me, Your Honor.

I didn't hear the beginning of the question.

Justice Stevens: What if those statutes acknowledge all those presumptions and say there's a presumption that the parents are the final say on what goes on...

Mr. Smith: Uh-huh.

Justice Stevens: and the grandparent may not have visitation rights unless the grandparent can prove that absent visitation rights the child will be seriously harmed?

Mr. Smith: I believe that those statutes violate the constitutional rights of the parents.

Yes, I do.

Justice Breyer: Well, what do we do in... I mean, unhappy families are all different, and...

Mr. Smith: And so are happy ones... yes.

Justice Breyer: what happens where there are custody proceedings, there are very complex situations, where children... suppose you're already in court in a domestic relations case and there's some complex situation, has to do with a stepfather, cousins, no relationships... there are all... and sometimes domestic relations judges have to work out very, very detailed orders in highly complex situations, and do you want to say there, too, what we're doing is giving a constitutional veto to a natural mother, where she's already in court and it's one of these complex situations?

I mean...

Mr. Smith: Yes.

Justice Breyer: Yes?

Mr. Smith: Yes.

Justice Breyer: Well, what are we going to do to circumstances where the mother has problems, where they've been raised by foster families, where there are schooling problems, where there's a search for stable relationships, where the child's interest is what the judge is thinking of, and sometimes he has to work out something that's highly detailed.

Why should the mother in that kind of ongoing situation suddenly have a kind of veto?

Mr. Smith: Your Honor, in that circumstance I believe the court would be able to find harm under the circumstances that would allow the parent's decision to be overridden.

The point is that the court has to have a level at which they start making decisions, the State starts making these decisions instead of the parent, and the best-interest standard alone is insufficient.

It's particularly insufficient when it is characterized, as it was in this statute, and it was characterized by this Court, as simply the State saying what it thinks that the best interest of the child is, as opposed to the parent.

Justice Kennedy: Could you have answered Justice Breyer by saying that where custody is in issue, best interest then becomes the standard.

Mr. Smith: Well, I...

Justice Kennedy: But where visitation is an issue, it is not, or do you make that distinction?

Mr. Smith: Well, I do make the distinction, but perhaps in a slightly different way.

When custody is at issue between parents, for instance, there is a best-interest standard that should be applied between the parents, because you've got a neutral playing field there.

You have two people who have...

Justice O'Connor: Yes, but often these come up in contexts where it isn't between two parents.

There may be one parent who's impaired through drug abuse or something else, and you may have an aunt or a grandparent who's had the child all along, for years.

Now, what standard does the Constitution demand in a custody situation?

Mr. Smith: The right to assert the fundamental interest depends upon the relationship between the parent and the child, or the person who is acting in the parent relationship with the child.

This Court talked about the parameters of this in Moore, for instance, in which the grandmother was acting as the parent to the child.

It is the intimate family relationship between the parent and the child that creates not only the right but the obligation to make these decisions for children.

Justice Kennedy: And are you saying that all we need to decide here is that that right applies when custody is conceded?

Mr. Smith: Yes.

That's... that is what we're saying.

We have a perfect...

Justice Breyer: You're a domestic relations... are you... you know a lot about this area, I hope.

Mr. Smith: Yes.

Justice Breyer: Okay, good.

Mr. Smith: I hope so, too.

Justice Breyer: So are there... look, if we get out of the problem I raised in that way...

Mr. Smith: Uh-huh.

Justice Breyer: what is also lurking in the back of my mind is not this case.

I'm not thinking of this case.

Mr. Smith: Uh-huh.

Justice Breyer: I'm worried about words that will affect other cases.

Now, are there other kinds of proceedings where it's not exactly custody, but there's this kind of complexity that's worrying me, where the stability of the child... you know, and you can't say harm.

The judge is out there writing a rather detailed order, and he can't prove harm in respect to every word in that detailed order.

Are there other things we should be writing into this that this case isn't?

Mr. Smith: I am not aware of another circumstance in which this type of intrusion occurs, where you have a third party coming into court and asking for associational rights with the child, essentially.

Now, there may be circumstances under which people want to have children do other things, but I believe that the lower courts are perfectly capable of looking at the differences between deciding whether a parent is not acting in the best interests of the child which I believe, Your Honor, is sort of... I think it was Justice Kennedy who said, this is sort of the flip side of the harm analysis, and having a court independently substitute its decision of what's in the best interests of the child.

And the difference is this, and the reason it is so important in domestic relations that this distinction be made is that if you put the burden on someone to show harm, as that will be defined and as it has been defined in many cases in Washington... and most particularly I would ask the Court to look at the Littlefield case which was decided 2 years ago in Washington and talked about harm in a relocation and travel situation.

If you put the burden on an individual to look at the parents' decision and see whether it is within the range of acceptable decisions, that is a very different thing than telling a court, as the courts were told in these statutes, you decide what you think is in the best interests of the child, and it's different, and it's important for two different reasons.

The first is, when judges are making decisions, when the State is making decisions in a best-interest situation, it's very much different than the sorts of decisions that most judges make under most other circumstances, where they're deciding whether somebody committed a crime or breached a contract.

Chief Justice Rehnquist: When you get... range that broadly, Ms. Smith, I'm very much bothered by the fact that the supreme court of Washington here struck down on Federal constitutional grounds an entire statute, not simply saying it couldn't apply in this case or that case, and I think our constitutional rule for Federal purposes is that to do that you have to show that no conceivable circumstances could the statute be constitutionally applied, and I take it you're taking that position.

Mr. Smith: That's correct.

Chief Justice Rehnquist: But the fact that there are all sorts of cases where it wouldn't be constitutional I don't think helps you, unless you can show that there are no cases in which it would be constitutional.

Mr. Smith: This statute does not provide a constitutional rule of law for the determination of when a visitation order is to be entered.

Justice Scalia: You're saying, even though they might come up accidentally with a result that you could have decided properly under a proper standard...

Mr. Smith: Yes.

Justice Scalia: the standard here, which is simply the best interests of the child, is always wrong...

Mr. Smith: That's...

Justice Scalia: as applied in every case to which this statute applies.

Mr. Smith: That's correct.

Justice Souter: What about custody cases?

Mr. Smith: Well, in a custody case... in a custody case between a third party and a parent, this standard would not be used in Washington, and it could not be used, I do not believe.

Justice Stevens: Would it be used in a dispute between the two parents in a divorce situation?

Mr. Smith: Well, the... it would have been used in Washington between 1974 and 1987.

The Washington legislature...

Justice Stevens: In a divorce situation do you think it was constitutional?

Mr. Smith: Yes, because you've got two individuals who have been acting as a parent to the child, and they, between the two of those... I mean, you've got to have a tie-breaker at that point, if they're disputing, but you don't need to have a tie-breaker under these circumstances.

We've already got a tie-breaker, and it is the fact that the parent makes the decision unless it's putting the child at risk, which...

Justice Souter: Would the statute... may I interrupt you?

Would the statute apply in a case in which the child had been brought up by one single parent, let's say the mother, who at all times during the child's upbringing was living with her own mother and father, and a question then arose as between, let's say, her mother, who had always been with the child just as much as she had.

Would the statute apply in that case?

Mr. Smith: For custody or visitation?

This statute?

Justice Souter: Yes.

Mr. Smith: Well, if the parent was making a choice to live with the parent, with her parents...

Justice Souter: Right.

Mr. Smith: Yes.

I...

Justice Souter: And then the day comes that she moves out.

Mr. Smith: And then the day comes when she decides to move out.

Justice Souter: Yes.

Mr. Smith: Now, under a properly drafted statute I certainly think that there might be circumstances under which, if the individual was completely cut off...

Justice Souter: Excuse me, but before you get to that, would the... would this statute apply in that case?

I assumed it would, frankly?

Mr. Smith: It could.

Justice Souter: The mother, after 10 years living with the child with her own mother, the child's mother takes the child and moves out.

Mr. Smith: Uh-huh.

Justice Souter: Her own mother wants some visitation.

The statute would apply in that case, wouldn't it?

Mr. Smith: The statute would apply, but I don't think it could be constitutionally applied, because it doesn't provide a constitutional rule of law.

Justice Souter: But earlier I thought you said that the best-interest standard determined the appropriate circumstances for a best-interest standard, which you admit in some narrower range, turned not on the blood relationship but between, in effect, the functional relationship, whether or not there was the kind of intimate association which is normally associated with parents, and I would have thought that in my hypo there would have been that extended intimate association, and that therefore, in my hypo the best-interest standard, on your own reasoning, would be constitutional.

Mr. Smith: The court makes a... well, parents may live with other individuals.

That does not give a parent-child relationship to those individuals with whom they live.

There's still one...

Justice Souter: So that there is a blood component to this.

Mr. Smith: Well, I don't think there necessarily has to be.

I don't think the court has to...

Justice Souter: Well, what about my case, then, in which the grandmother has had just as intimate a relationship with the child as the child's own mother?

Mr. Smith: Your Honor, respectfully I would suggest that they didn't have just as intimate a relationship, because the decision...

Justice Souter: You don't like the hypo.

[Laughter]

Mr. Smith: No, it's not that I don't like the hypo.

It's just that I think that... I mean, I don't know exactly why these people were living together, but I presume it was because the parent made the choice to live with her parents.

Justice Souter: Right.

Mr. Smith: And that was the choice that she made for herself and her child.

Justice Souter: Yes, and she went to work every day, and she left the child with the grandmother.

Is that a sufficiently intimate relationship or not?

Mr. Smith: No, not... the parent is making the decision how the parent-child relationship is...

Justice Stevens: May I ask you...

Mr. Smith: and who the child is going to associate with.

Justice Stevens: May I ask you to comment on a problem that concerns me?

I'm just really interested in your answer.

Take Justice Souter's hypothetical and assume that... we see in domestic relations fights sometimes children are used by one spouse against the other as part of the bargaining and so forth, and supposing you have a situation in which the mother of the child gets into a dispute with the grandmother that's totally unrelated to the welfare of the child, but decides for arbitrary reasons to deny visitation rights because it will further her ability to pursue whatever the dispute is...

Mr. Smith: Uh-huh.

Justice Stevens: Arbitrary in the sense of best interests of the child, but yet using the child as a weapon in a dispute like that.

I take it your standard would say, total control in the mother?

Mr. Smith: Absent evidence of harm.

Absent some indication that the...

Justice Stevens: No evidence of harm, except the grandmother just won't get to see the child she's been living with for the last 20 years.

Mr. Smith: Under a properly...

Justice Stevens: Or 10 years.

She'd be too old.

Mr. Smith: 20 years, I think the child...

Justice Stevens: Yes.

Mr. Smith: might be making the decision.

[Laughter]

Justice Stevens: Yes.

10 years.

Leave it at 10 years.

But that is the consequence, that it's an absolute veto unless the other side can prove harm to the child?

Mr. Smith: Yes.

Justice Scalia: And you would apply that, I suppose, also to the case of the no-good black sheep husband who has abandoned his wife and child, and then the wife dies, and the husband suddenly reappears and decides what will happen to the child, I take it?

Mr. Smith: No, I would not.

Justice Scalia: Why not?

Mr. Smith: Because I think it's both the combination of... well, this is the reason I said I'm not sure the biological relationship is the truly relevant one.

It's the fact that the parent, by definition, has the right and the obligation to make day-to-day decisions for the child, and this is exactly the sort of day-to-day decision that parents rather than the State should be making, and you...

Justice Scalia: Well, but this is a parent.

I mean, this is the father.

There's no doubt that he was the biological father, and I suppose he would be entitled to custody if he...

Mr. Smith: I think we're defining parent differently.

I'm defining parent in a way that acknowledges the fact that a parent parents a child, that...

Justice Scalia: You're saying there's got to be blood and a history of intimate association in practice.

Mr. Smith: That's correct.

Justice Scalia: Does the statute require that?

Bear in mind that you're trying to sustain the burden of saying that this statute is unconstitutional in all its applications, but you've just said that it's certainly not unconstitutional in the application where the parent who is trying to determine the future behavior of the child is this no-good black sheep father who hasn't been with the child.

Now, there's at least one situation where you could apply the rule of this statute constitutionally, right?

Mr. Smith: Well, the fact that the... no.

I don't believe so, because the fact that the biological parent, who has not acted as a parent to the child... he wouldn't have any standing under this statute.

Justice Souter: You'd say the statute would be irrelevant in that case.

Mr. Smith: Yes.

Who's going to be... somebody's taking care of the child, presumably.

Justice Souter: You would say the statute was irrelevant, but I don't have any reason to believe that the supreme court of Washington would say it was irrelevant.

I mean, that's not... what... your concept of parent as having the two factors does not seem to be the concept of the statute.

It certainly isn't defined that way.

Mr. Smith: Well, the court had before it, and I certainly don't think that they anticipated a situation... they had before it three fit parents, in which there was no question, and there's certainly no question in this case that those parents were fully capable of making decisions for the children, and that there was... there was nothing wrong with those decisions, except somebody who had the filing fee amount disagreed with them.

Justice O'Connor: Is there a statute left in Washington now to cover visitation...

Mr. Smith: Yes.

Justice O'Connor: and if so, what is it?

Mr. Smith: The statute that is now left in fact requires that there be a court action pending.

Justice O'Connor: Do we have that in the...

Mr. Smith: It is reproduced in the appendix to the brief of the petitioner.

It was not... and it would not have provided relief to the grandparents in this case, or the petitioner in this case or in any of the cases that were before the State supreme court because there was not a custody action pending.

It does...

Justice Ginsburg: Is that the normal, that a visitation application can attend some other proceedings, divorce, separation, custody, but can't be made at any time?

Mr. Smith: Well, I don't know if it's normal.

It's certainly the case in many jurisdictions that that is a triggering mechanism, and certainly the intrusion under circumstances like that is far less than it is in a situation like this, where any person at any time can seek visitation, because the parties are already in court at that point.

Somebody's going to be making a decision concerning this.

And when the Washington legislature passed that statute in 1996 they required not only that there be a custody action pending, but that the individual who is seeking visitation show a substantial relationship to the child.

They presumed that grandparents have such a relationship, but again, they required that there be a custody action pending, and it's the intrusion of coming into court that is, in fact, one of the things about this statute that is so pernicious.

You should not be placed in the situation that my client was placed in of coming in and defending a perfectly reasonable decision, because this started out as a dispute about whether these grandparents, who were never denied access, were going to see these children once a month or every other weekend, which is what they were seeking.

They wanted every other weekend overnight visitation with two girls who at the time were less than 2 and 4, and no one should be brought into court for that sort of dispute, and that's what the Washington supreme court recognized in finding that the parents in the cases before it had a statute unconstitutionally applied to them, because there was no standard for either allowing individuals to come into court, which individuals, when they could come into court, or what had to be proven in order for a visitation order, or any of the other little micromanagement that goes on in these sorts of orders, to be entered.

Justice Ginsburg: And there is an assumption that the Washington supreme court was talking about a fit parent who has custody?

Mr. Smith: That's correct, and that's what they had before them, and in fact I think it's quite clear that they thought they were applying this statute to these fact situations.

Justice Scalia: Can I come back to my no-good black sheep runaway...

Mr. Smith: Oh, sure.

Justice Scalia: runaway husband...

[Laughter]

because I'm worried about that being the case...

Mr. Smith: Yes.

Justice Scalia: where this statute might... maybe the answer to that case is that that husband would first have to seek custody of the children, and custody would be denied.

Mr. Smith: That... he would be denied custody.

Justice Scalia: Okay.

Mr. Smith: I believe.

Justice Scalia: But if he were granted custody, then you would say it would play out the same way your case does?

Mr. Smith: Yes.

Justice Scalia: Okay.

Mr. Smith: Because we have a situation... I mean, the Constitution, as it's been characterized by this Court, or interpreted by this Court, and as a matter of the way we've operated our society, we have parents make decisions about who children are going to visit with, what candy they're going to eat, how much television they're going to eat, and we don't take that decision away from them.

All those little decisions, the big decisions, all the things that raise children...

Justice O'Connor: All right, but now your own State of Washington has adopted a new statute to fill the gap, hasn't it?

Mr. Smith: Yes.

Justice O'Connor: And again, it bases it on the best-interests-of-the-child standard.

Mr. Smith: With a number of factors.

Justice O'Connor: Yes, but under the rule that you would have us adopt, that also is invalid.

Mr. Smith: I believe that the court... and I would encourage them to, and I may get the opportunity to, to have them apply a harm standard.

They did that in the Littlefield case with regard to relocation.

Chief Justice Rehnquist: They could easily have done it here, but they simply refused to.

Mr. Smith: Well, I think what they recognized is this, that they had a statute that allowed any person at any time to seek visitation, and at least with regard to that broad a statute, they believed that there had to be a showing of harm, and I think that it's important to recognize...

Justice O'Connor: But under your view, if we were to adopt it, this follow-up statute is also invalid...

Mr. Smith: I believe...

Justice O'Connor: on its literal language of the best-interest standard.

Mr. Smith: It would have to be interpreted by the court.

I believe that...

Justice O'Connor: To mean something else?

Mr. Smith: No.

I think that the court could characterize the best-interest standard as providing an appropriate protection for the parents' right, because... if it required a showing that the parents' decision under those circumstances was not in the best interest of the child, that would be the equivalent of a showing of harm.

Chief Justice Rehnquist: But if the supreme court of Washington wouldn't construe this statute to require harm, is there any reason to think they're going to construe the follow-up?

Mr. Smith: Well, the statute has factors involved in it.

It also requires that there already be the court intrusion.

I don't know, and they haven't had that case before them.

They had to consider what they were going to do in situations like this, where a third party was seeking visitation absent such an intrusion already occurring.

Justice Stevens: May I ask, in this case you appealed to the appellate court and the State court.

Did you argue, in addition to arguing the statute was unconstitutional, that the trial judge had engaged in too much micromanaging?

Mr. Smith: Yes.

Justice Stevens: And of course, if they'd accepted that argument, we wouldn't be here.

Mr. Smith: We wouldn't be here.

If they'd accepted my argument that they should apply what they'd been doing for 20 years with the State, there had to be another action pending.

Justice Kennedy: Can you tell me, in a case something like this, where the initial position of each side is rejected, then the court makes some Solomon-like midway compromise, in a case like that, would the parents... assume younger parents faced with well-financed grandparents... ever be entitled to 100 percent of their attorneys' fees, or do you have to be a prevailing party?

How does the attorneys' fees...

Mr. Smith: You know, I can tell... I can only tell you what happens in a situ... in most of these situations, and that is, in the course of the Solomonic division, the courts usually don't award fees.

I can certainly represent that to you, and I can also tell you that in the two other cases that were pending before the State supreme court, that in the other case in which I represented the parent, that the court below... because these decisions are made by the trial courts, who have just had themselves reversed... did not award fees to a client who was in much worse financial situation than the parents... than the grandparents.

Justice Scalia: As I understand... I understand the dichotomy you draw between a harm-to-the-child standard and a best-interests-of-the-child standard.

I'm not so sure about your fallback standard, which is, you think it would be okay if you applied not a best-interests-of-the-child standard, but a standard to the effect that the parent who has custody is not acting in the best interests of the child.

You don't think that that's much different from the judge deciding what is in the best interests of the child?

Mr. Smith: I absolutely do, and I think Justice Kennedy pointed out that it's really the flip side of that.

If you... and this goes back to something I was talking about earlier, which is the second reason the best interest standard doesn't work, and that is that when you tell the State or a court to make a determination of whether a parent is not acting in a child's best interest, the focus of the decision is much different than asking a court...

Justice Scalia: Oh, I see.

Mr. Smith: what is in a child's best interest.

Justice Scalia: I see.

You don't mean that what the parent has decided to do is not in the child's best interest.

You're applying a subjective standard?

Mr. Smith: No.

Justice Scalia: The court has to decide whether the parent subjectively is trying to do what is best for the child?

Mr. Smith: It's... the court has to look at whether the consequences of the parent's decision will be to harm the child.

In that circumstance, a parent would not be acting in a child's best interest.

It's the difference between asking in this case...

Justice Scalia: Well, no, no.

I mean, you could not harm the child, but still not be acting in the child's best interests.

Mr. Smith: Well, best interests I think has to be defined in a way that you recognize that there are all kinds of decisions that could be made about a child, and we may disagree about what is in a... I might think that it's in the best interests of my child to go out for football rather than to play the violin.

The choice of the outcome, as long as it's not harmful to the child, is the parents, and if you're making decisions that go towards that outcome, then somebody else shouldn't substitute their decision.

If I think instead that it would be in the best interests of my child to be in child pornography, then somebody else can step in and say, that is not a decision that can be in the child's best interest.

Justice Scalia: It's no different from harm, the way you're describing...

Mr. Smith: It is.

You're absolutely right, I don't think it's any different from harm, and the reason that it isn't is because it takes the focus away from the State making the decision to whether the parent's decision is within the range of acceptable decisions.

Justice O'Connor: May I ask you one last question here about what you urged the Washington court to do?

Mr. Smith: Yes.

Justice O'Connor: Did you ask the court to find the statute then being used constitutionally overbroad, applying the Federal standard for overbreadth...

Mr. Smith: Well...

Justice O'Connor: constitutional overbreadth?

Mr. Smith: The... this argument that's being made now that we... there's a difference between...

Justice O'Connor: Well, just answer my question.

Mr. Smith: I'm sorry.

No.

What I asked the court to do... first of all, I made an argument that they should rely on our State constitution, which they didn't address.

Then I asked the court to construe the statute narrowly so that it could be properly applied, and that under the facts of these cases these people could not seek the...

Justice O'Connor: Do you think, then, that the Washington supreme court applied a Federal constitutional overbreadth standard in striking the entire statute?

Mr. Smith: The court thought that the statute violated the Federal Constitution.

Chief Justice Rehnquist: Thank you, Ms. Smith.

Mr. Smith: Thank you.

Rebuttal of Mark D. Olson

Chief Justice Rehnquist: Mr. Olson, you have 2 minutes remaining.

Mr. Olson: Thank you, Mr. Chief Justice.

Justice Breyer, what I think is most important about the special question that you asked is that the father in this case, Brad Troxel, wanted the grandchildren to know their grandparents, and the State can continue to respect his views before he died, and Justice Souter...

Justice Ginsburg: But, of course, these children have a father now.

The mother's husband adopted...

Mr. Olson: It's a step-parent adoption, and 28 States permit visitation in step-parents adoption cases.

Justice Souter, your question, we don't read the Washington opinion to establish a different standard for facial invalidity, and no party argued for a different standard in the State court, and Mr. Chief Justice...

Justice Souter: They didn't say anything one way or the other about the standard they were applying.

Mr. Olson: It was not discussed.

And Mr. Chief Justice, the best-interests-of-the-child standard in the amended statute in Washington, 26.09.240, still is the basic best-interest standard that exists in 48 States.

It just says, include and consider these factors, but you're not limited to it, because the complex nature of State dissolution and family law cases dictates the factors.

We don't want to create an Internal Revenue Code to try to figure out how to ferret out these problems.

On the micromanagement, it's important to know that, regarding the use of the name, Isabel, it was the mother's request that the grandparents not call her Rose, to which the grandparents conceded.

That was put in the order.

All of the micromanagement issues were requested by the parents.

The grandparents conceded that, and that was to make the parents feel better so that that would be better for the children.

The...

Justice Ginsburg: I just want to go back to earlier, raising of the... are you suggesting that the grandparents accede to the rights that the dead father would have had, even though we're dealing with an adoptive parent, not a step-parent?

Mr. Olson: The problem with kinship, I believe, is that we can't ignore that the children had another parent, and that we want to respect the rights of that parent.

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Olson: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Chandler v. Miller - Oral Argument

Fri, 09 Jan 2009 14:50:09 +0000

Case:

Chandler v. Miller

Media File:

96-126_19970114-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Walker L. Chandler

Chief Justice Rehnquist: We'll hear argument first this morning in Number 96-126, Walker Chandler v. Zell D. Miller, Governor of Georgia.

Mr. Chandler.

Mr. Chandler: Mr. Chief Justice, and may it please the Court:

In 1990 the State of Georgia adopted a law requiring drug testing of all members of the State government, State employees.

Almost as an afterthought, it adopted a law requiring drug testing as a condition of employment or candidacy for candidates for public office.

The first of those laws was struck down in the lower courts.

This law was brought forward before this Court by me and my co-plaintiff, who ran for office in 1994.

Unknown Speaker: Mr. Chandler--

Mr. Chandler: Yes.

Unknown Speaker: --you say that the petitioners ran for office in '94, and in the petition you brought here there's no assertion that any of the petitioners plan to run again in the future, is there?

Mr. Chandler: Not in the... as I recall, not in the actual pleadings in the lower court.

However--

Unknown Speaker: No.

So how would we have jurisdiction?

Mr. Chandler: --Your Honor, I believe this case would not be moot, because it would be capable of repetition and yet evading--

Unknown Speaker: Well, how would it be if none of the petitioners plan to run again?

Mr. Chandler: --Your Honor, I plan to run again.

Unknown Speaker: But that was not stated--

Mr. Chandler: That was not stated below.

Also, Justice O'Connor, I... my candidacy and the candidacy of all Libertarian Party members is premised on the concepts of limited government and freedom from unconstitutional searches and seizures among all the other liberties reserved to the people by the Founding Fathers, and in that respect I would think that OCGA 21-2-140 is violative of the interests of all candidates, whether or not--

Unknown Speaker: --Well, that's a merits argument, certainly, but normally we would look to see if there's some situation in a case like this of being capable of repetition and avoiding any review, and normally we would look to see some avowal that yes, indeed, these petitioners or at least one of them intends to run again.

Mr. Chandler: --Yes, I understand that.

Unknown Speaker: And you didn't seek to bring this on behalf of a class of candidates.

Mr. Chandler: No, sir, Your Honor, I did not.

Unknown Speaker: Mr. Chandler--

Mr. Chandler: Yes.

Unknown Speaker: --I'm wondering why, if you want to raise this issue, you don't have to refuse to take the drug test, rather than go ahead and take it and get on the ballot and then challenge it later.

Mr. Chandler: Your Honor, we filed this action prior to submitting to the test, prior to qualification by having this little piece of paper that certified us as being drug-free.

We were the nominees of our party.

We had an obligation to take forward the message of our party, the other messages of our party in the electoral process, so we essentially had no choice but to submit... unwillingly, perhaps, but to submit to this State-ordered search.

Unknown Speaker: When did you file the suit, before the election or after the election?

Mr. Chandler: Before the election, Your Honor, in May of--

Unknown Speaker: So at that time there's no doubt that the case was not moot.

Mr. Chandler: --Yes, Your Honor.

Unknown Speaker: At that time it was very much alive.

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So the complaint is that you... what, that you didn't amend your complaint in order to assert repetition after the election?

Have we ever required that, amending a complaint in a suit that originally was not moot in order to aver that mootness has not occurred?

Mr. Chandler: I don't know, Justice Scalia.

Unknown Speaker: I don't recall we've ever required that.

Anyway, as an officer of the court, you represent to us that you intend to run again, that this issue will arise again if the Georgia law stands?

Mr. Chandler: Yes, sir.

We search in vain the cases that this Court has handed down which deal with suspicionless searches to find where any blanket search of this nature, this magnitude, and lacking any showing of any compelling State interest, has been granted by this Court.

Unknown Speaker: Suppose that a State agency said, in the interests of all of our employees, everyone once a year must take a physical exam.

We don't want to know the results.

All we want you to do is to say that you've gone to a doctor, any doctor you want, for a physical examination.

Is that a search?

Mr. Chandler: Yes, Your Honor, I would think that would be a search.

Unknown Speaker: When does a search arise, when you go into the doctor's office?

Mr. Chandler: I would think so, Your Honor.

Unknown Speaker: Even though the results are disclosed only to you?

Mr. Chandler: I would think that it would be a search, because if the result of that search is that you can no longer serve in that agency, then--

Unknown Speaker: No, no.

No, the agency says, we don't care what the medical exam discloses.

We just, in the interests of our employees we want you to be examined once a year.

Mr. Chandler: --Well, I would think, Your Honor, that's... with all due respect, that's not before the Court, and... but the--

Unknown Speaker: Well, there are a lot of things that are not before the Court that are going to be before the Court based on this opinion, and so we have to write an opinion that covers more than your particular case because we're interested in the general principle.

Mr. Chandler: --Yes, Your Honor.

I--

Unknown Speaker: So I'm asking why this is a search.

Mr. Chandler: --I would think that it would be a search if, as a result of that search, a person could lose employment.

Unknown Speaker: That's not my hypothetical.

All you have to do is go to the doctor and just certify that you've had a physical exam once a year at a doctor of your choice.

The agency says we want to do this in the interests of our employees, and that may well... we can play with the hypothetical.

Mr. Chandler: Yes, sir.

Unknown Speaker: The agency pays for it, or whatever.

Why is that a search?

Mr. Chandler: I would think it would be a search under the principles of... that were announced in Schermberger, which drew a distinction between bodily searches--

Unknown Speaker: That is to say, Schmerber?

Mr. Chandler: --Yes, sir.

Unknown Speaker: Well, there the... involuntarily a needle was inserted in the... with the patient by a doctor who was not of his choice at a time that was not of his choice.

He had... he was there, on the gurney, in custody.

But that's quite different, it seems to me, from just saying go to a doctor once a year.

Mr. Chandler: It may well be, Your Honor.

Unknown Speaker: It may well be?

You think... I assume this physical exam requires a strip, right?

Mr. Chandler: Yes, sir.

Unknown Speaker: And you're saying that that's not a search, requiring you to go to somebody else and strip down and have that person examine your body?

Mr. Chandler: I think it's--

Unknown Speaker: What possibly could be a search if that's not a search?

Mr. Chandler: --Yes, Your Honor.

Unknown Speaker: I mean, you might want to argue about whether it's an unreasonable search, but you don't have any doubt it's a search, do you?

Mr. Chandler: No, sir, Your Honor.

Unknown Speaker: Mr. Chandler, would you have any problem if what the State did instead of requiring a drug test within 30 days of filing your nominating petition is require every candidate for the State office to file an affidavit certifying that the candidate is not now and has not in the past used or ingested illegal narcotic drugs?

Mr. Chandler: I would object to that, Your Honor, because that would--

Unknown Speaker: There's no search.

Mr. Chandler: --There is no search, but I--

Unknown Speaker: It certainly wouldn't... you wouldn't be here on the basis that you are here today.

Mr. Chandler: --That would be true.

Unknown Speaker: And a State has wide latitude, does it not, to define qualifications for State office?

Mr. Chandler: Yes, so long as those... so long as they do not violate people's constitutional protections.

Unknown Speaker: And what constitutional protection would be violated by requiring such an affidavit, that to be a candidate for State office you certify that you're not a drug abuser?

Mr. Chandler: Or never have been in your hypothetical, Your Honor.

You asked if I would object, and I would object not on a constitutional grounds--

Unknown Speaker: I'm asking on what constitutional basis.

Mr. Chandler: --I'm sorry, Your Honor, I fail to know of a constitutional basis that that might fit within that hypothetical.

Unknown Speaker: You just wouldn't like it.

Mr. Chandler: Yes, Your Honor.

I think that it might have some implication for free... free speech implications under the First Amendment, Your Honor, but--

Unknown Speaker: Well, if you had to take an oath that you have never been disloyal to the Government of the United States, of a State, or you've never been a member of, say, the Socialist Party, then you might have an objection under a different amendment than the one you're claiming, but you are claiming the Fourth Amendment, and you are doing it in relation to a bodily intrusion.

The Fourth Amendment puts on the same line as the security of one's person the security of one's papers.

Would you then question the requirement that if you run for office you must do a complete financial disclosure which will involve disclosing papers?

Mr. Chandler: --I think that there the Court has drawn distinctions in the past between bodily searches and financial disclosure.

I did not object in this case to financial disclosure.

Unknown Speaker: But the Fourth Amendment does say persons, houses, papers, so why would you say that it's all right to demand papers but not have anything to do with the person?

Mr. Chandler: Because I think there is a strong, compelling privacy interest in the person that goes far beyond the compelling... any compelling interest--

Unknown Speaker: Where do you get that from in the Constitution?

Mr. Chandler: --Justice Ginsburg, I do not know.

Unknown Speaker: Well, isn't--

--And is it the personal interest in not having to strip and have needles inserted, or is it the personal interest in not disclosing the results, because if it's the latter, then your case is perhaps more difficult.

Mr. Chandler: I think it's the former, Your Honor.

It's the actual giving up of bodily fluids, the insertion of--

Unknown Speaker: So you think most people would think that that's more of an invasion of privacy, just going to the doctor once a year, than having to disclose all of your financial records, all of your holding, all of your poverty or all of your wealth, as the case may be?

Mr. Chandler: --There is a big distinction in this case, Your Honor, and that is that if I disclose my wealth I cannot be kept off the ballot.

Unknown Speaker: Mr. Chandler, every invasion of privacy is not a search, is it?

Are you willing to equate every invasion of privacy with a search?

I mean, would you consider it a search if, instead of having someone examine you physically to decide whether you have cocaine in your body, you are required to disclose whether you have cocaine in your body?

I mean, that may be an invasion of privacy, but is it a search?

Mr. Chandler: Yes sir, I would deem it a search.

Unknown Speaker: You think it's a search?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So when I ask you, you know, are you a drug addict, I'm searching you?

Words have no meaning if we're going to talk like that.

Why--

--You just told me it wasn't, so which answer are you giving?

You answered to me that no, it wouldn't be a Fourth Amendment search, but I'd object, and now you tell Justice Scalia, yes, it's a search.

Now, which answer do you want to abide by here.

Mr. Chandler: I'm sorry, Justice O'Connor, I'm not exactly sure of the contradiction that I've voiced here.

Unknown Speaker: Mr. Chandler, going back to Justice Ginsburg's question, assuming that you had actually to disclose papers, produce papers as distinct simply from producing information, so that there really were... in the same sense that we're talking with here, there really were a search involved, I take it that your answer would... I take it that your answer to the question would not necessarily be the same as your position here, because the governmental interests involved are different.

You might or might not think the Government had a sufficient interest in requiring that kind of production from its political candidates, but at least the Government's justification, what we would look to to decide whether it was reasonable or not would, I take it, in your view be different from the weight of the government's justification in this case.

Is that a fair way to characterize your position?

Mr. Chandler: Yes, Your Honor.

I think that would be a fair way to characterize it.

Unknown Speaker: And your real argument before us, I take it, doesn't go to the scope of what is or is not a search, but the scope of what is permissible on the grounds that the government does have a justification which is sufficiently weighty to make that search a reasonable one.

Is that it?

Mr. Chandler: Well, I certainly felt like it was a... that a financial search or a financial disclosure was a more reasonable government requirement than a drug test.

Unknown Speaker: All right, and what is your reason for saying that this particular search is not a reasonable one?

What's the nub of your attack on the government's justification?

Mr. Chandler: First, there is no real evidence of a real problem.

There... this... the searches which have been allowed by this Court have always been narrowly limited to certain areas... the front line in the war on drugs, drug interdiction, the use of firearms, the train accidents, things where a real problem or a real potentiality has been shown, and not mere hypotheticals.

And so the essence of this case is that this is just yet another attempt at expansion of governmental power over people for a very symbolic purpose, which is put on the State of Georgia.

It's not a test that's designed to keep drug abusers out of office.

It's a blanket search, carried out for symbolic purposes to... in my opinion to show that the General Assembly of Georgia is against drugs.

Unknown Speaker: Mr. Chandler, at the outset of your argument you mentioned that there was a... the statute originally applied to all State employees, and that that was held invalid.

Was that by Georgia courts or a Federal court?

Mr. Chandler: Federal court, but that was a companion statute, not this statute.

Unknown Speaker: I understand, but who held it unconstitutional?

Mr. Chandler: The district court in Atlanta.

Unknown Speaker: A State district court, or a Federal district court?

Mr. Chandler: A Federal district court, Your Honor.

Unknown Speaker: Was that case appealed?

Mr. Chandler: I don't know, Your Honor.

Unknown Speaker: When was that?

Is it--

Mr. Chandler: That was in 1990.

Unknown Speaker: --1990.

Mr. Chandler: Yes, sir.

Unknown Speaker: Thank you.

Mr. Chandler: This... a very similar case was brought in the district court.

this district... Harmon v. Thornburgh was also decided in the district court level in 1990, where the Justice Department wished to test, have blanket tests of all Justice Department attorneys, and that was held by the court at that time, the district court, to be not within the parameters announced by this court in Skinner and Von Raab.

Certiorari was sought in that case by the Government and was denied.

I consider this case to be almost exactly in line with that particular case.

Unknown Speaker: Well, the statute here, Mr. Chandler, does single out certain high-ranking State offices, and I think... I would think you're in a position... you ran for what, lieutenant governor?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: You're in a position to challenge the requirement for lieutenant governor.

I don't know that you're in a position to challenge requirements for other offices which you didn't seek, and certainly, don't you think there is an argument on behalf of the State that the people have a right to have a lieutenant governor who is, free of drug use?

Mr. Chandler: First, Your Honor, the... my coplaintiff, Sharon Harris, ran for commissioner of agriculture.

Secondly, there was never any showing that drug abuse or drug use in high offices or any other offices in Georgia has been any kind of a problem.

Unknown Speaker: Well, Georgia, then you feel can't adopt a prophylactic rule that says we want to make sure it doesn't become a problem?

Mr. Chandler: No, sir, I do not think they can.

I think that a potential problem, a hypothetical, potential problem is not a real problem and is therefore a symbolic problem.

Unknown Speaker: What if the Georgia statute, instead of reading the way it does, had said everybody has to take this drug test but anybody can get on the ballot.

All you have to do is announce the results of your drug test.

Mr. Chandler: Your Honor, that might be more permissible in my opinion, because then it would at least leave it to the voters to decide whether they want to choose a person who submits to a test, who passes a test--

Unknown Speaker: Why--

Mr. Chandler: --or who refuses a test.

Unknown Speaker: --I thought you were complaining about the search.

Mr. Chandler: Yes.

Unknown Speaker: The search would be exactly the same in that situation, wouldn't it?

Mr. Chandler: Yes, Your Honor.

Unknown Speaker: So how would it be any better?

I mean, if your real objection is the search, your answer should be, you know, no, it's just as bad.

I think he's capable of answering himself.

Well, but he's not capable, perhaps, of perceiving whether what he's objecting to is the search, Chief Justice.

If... maybe you're not objecting to the search, then.

You have some other problem than the search?

Mr. Chandler: I certainly object to the search as a prerequisite to being... to ballot placement, Justice Scalia.

Unknown Speaker: Well, isn't there a search in this other case?

But you don't object to that.

Mr. Chandler: In which other case?

Unknown Speaker: In the case the Chief Justice put to you, where you had to undergo the same search, but you could run whether it came out positive or negative.

Mr. Chandler: Well, I'm just saying that there's... that that would not... I think it's for the people of Georgia to decide whether or not you can be on the ballot, Your Honor.

Unknown Speaker: I'm sorry, I just don't understand, given that your objection is to the search--

Mr. Chandler: Yes.

Unknown Speaker: --why you would not... if it is to the search.

Mr. Chandler: Yes.

Unknown Speaker: Maybe it's not.

I don't understand why you would not find the Chief Justice's hypothetical just as bad as the one that you confront.

You can't run unless you get searched.

Mr. Chandler: Well, obviously, Your Honor, I have objected to the search.

Unknown Speaker: Or take another example.

No testing before, but the moment you are elected to office, you must have a test and you must repeat it annually.

Would you object to that?

Then the voters make their choice without any requirement of a--

Mr. Chandler: I would object to that because, Justice Ginsburg, there's no showing that there is a problem.

Unknown Speaker: --Well then, how does that differ from in between the time that you're on the ballot and the time that you're elected?

What is the difference in my situation, in the question that I pose and the one that Justice Scalia posed?

Mr. Chandler: I believe this Court has held, at least since the Carroll case in 1925, that blanket searches are intolerable, and that that would just be a blanket search.

Unknown Speaker: And would that be the same if every employee was required to get a physical examination once a year?

Mr. Chandler: Yes, sir, I believe it would be.

It would be a blanket search required by government, and I think a blanket search of people to determine whether or not they're using drugs, or whether or not they have a terminal illness, or whether or not they have a genetic defect, or a blood-borne disease... we have to look at--

Unknown Speaker: And that's because you object to the intrusion of going into the doctor's office, not the disclosure of the result?

Mr. Chandler: --Insofar as that intrusion is forced upon me by the State, yes, Your Honor.

Unknown Speaker: Mr. Chandler, I guess the test under the Fourth Amendment is whether the search is reasonable.

Now, does it enter into the balance of whether it's reasonable at all if it were shown that the virtually universal experience of private employers is to require an annual physical of employees, or to require a periodic drug testing?

Does that affect the balance when we look at a State-ordered search or not?

Does it affect what's reasonable, the general practice in the private community?

Mr. Chandler: I do not think so, Justice O'Connor, because there's a difference between the contractual relationship between employee and an employer and the political relationship between the government and candidates, and people who wish to be a part of that government.

That would be my answer to that question, Your Honor, but it may not address the point that you're concerned with.

Unknown Speaker: You'd have no problem with the law saying... or maybe you do, but if a high official, say the Governor, uses drugs, he is immediately disqualified from office, illegal drugs?

Mr. Chandler: Your Honor, for one thing, that--

Unknown Speaker: Would you have a problem with that?

Mr. Chandler: --I would even have a problem with that, Your Honor.

Unknown Speaker: Why?

Mr. Chandler: For one thing, that presupposes that the person that's in the high office has broken the laws of the State of Georgia.

The person could have, for example, been in a jurisdiction or another country where such drug use was not even illegal.

Therefore, he would not have broken the laws under the State of Georgia.

It is a shifting majority decides what is legal and illegal.

We see tobacco, for example, approaching illegality in this country, or portions thereof.

That introduces the novel idea that a citizen of a State is subject to the jurisdiction of that State no matter where in the world he or she might go, and that is an element--

Unknown Speaker: You think drug use is irrelevant to the abilities and the qualifications of a public officeholder?

Mr. Chandler: --Your Honor, I would think that that would be a matter of a question of how long ago was it, the frequency of use--

Unknown Speaker: Let's just suppose, during his term of office.

Mr. Chandler: --During his term of office, Your Honor, again it might be a question of frequency.

It might be a question of which drugs are being talked about.

It might be... there might be any number of questions--

Unknown Speaker: If they're illegal drugs--

Mr. Chandler: --If--

Unknown Speaker: --would you distinguish between illegal drugs?

Mr. Chandler: --Your Honor, we would like always for our elected officials to be people who obey the law.

However, when the Founding Fathers set forth the Fourth Amendment's prohibitions against illegal searches, I think they realized that people would be doing things that were illegal, and the answer that they sought, the answer that they would not allow would be blanket, suspicionless searches.

Unknown Speaker: But Mr. Chandler, I think the issue that's been raised is at least so far not an issue of search, as such, but an issue of substantive qualification.

Do you think there is anything unconstitutional about a State law provision to the effect that an officeholder who commits a crime... let's make it easy, a crime in the State, under State law, forfeits his office?

Is that unconstitutional?

Mr. Chandler: I do not think that would be unconstitutional.

Unknown Speaker: Okay.

Mr. Chandler: One of the issues here is, are there adequate protections that the people and the governments have to answer these questions?

I think there are already adequate protections in normal law enforcement, in the electoral process itself when people can be weeded out.

Nothing prevents a... an opponent of a politician in an election process to hold out his piece of paper saying he's been tested and then challenge his opponent to be tested.

Nothing would prevent that sort of buffoonery, and there's also the adequate protection of a free press and public scrutiny.

People live their whole lives, and they should be judged, perhaps, by the things that they do and the things that they say, and not by the products of their bodies.

I would like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Chandler.

Ms. Guilday, we'll hear from you.

Argument of Patricia Guilday

Mr. Guilday: Mr. Chief Justice, and may it please the Court:

This Court has established in Skinner, Von Raab, and Acton the test which permits drug testing in various contexts.

The State of Georgia is not here today to challenge that test in any way or to ask for any extensions of that test.

What we are asking the Court to do is to take the balancing of that test and apply it in a Tenth Amendment context, in the elections context.

Unknown Speaker: Does Georgia think this case is moot?

Mr. Guilday: Georgia thinks that the injunctive relief that Mr. Chandler and the co-petitioner sought with respect to the 1994 election is certainly moot.

The complaint also included a demand for, and the district court also recognized that the complaint also included a demand for declaratory judgment as to the merits, the constitutional merit of that statute, so to that extent, no, we do not think the case is moot.

Unknown Speaker: Even in the absence of... that the petitioners would seek office in the future, and in the absence of a class action?

Mr. Guilday: Justice O'Connor, we would admit that that question is close.

We read closely this Court's opinion in Storer, Norman, Meyer v. Grant, and the Democratic Party v. Wisconsin, all of which were elections cases.

There were various factual contexts in those cases, and in many, or in some at least, the facts were similar, where the electior was over and there was no statement that the particular candidates intended to run for office in the future.

Nonetheless, this Court held that because it was an elections context and the issues were likely to come before the Court again, that... I'm not sure which way to read the Court, either.

It was not moot, and so we will hear it, or it is moot, but even though it is moot we are going to consider it because it is an elections context.

Unknown Speaker: I hope we didn't say that.

[Laughter]

I mean, if it is moot, how would we have Article III jurisdiction at all?

That's jurisdictional.

Mr. Guilday: I believe--

Unknown Speaker: How could we say, even if it's moot we have jurisdiction?

Mr. Guilday: --If it is not... if it is moot, the Court does not have jurisdiction.

Unknown Speaker: You said that's what we have said.

Mr. Guilday: To be truthful, my reading of those cases makes it unclear as to what the Court was saying in each particular case.

Unknown Speaker: Do you think it's a pleading question, Ms Guilday, that whether a case is moot or not depends on what has been pleaded, as opposed to what exists?

Suppose he pleaded that he would run again but you could demonstrate that he has no intention of running again, wouldn't the case be moot?

Mr. Guilday: Your question asked whether it was a pleading--

Unknown Speaker: I mean, it seems to me it's moot if he has no intention of running again.

If he intends to run again and you accept that he... do you deny that he intends to run again?

Mr. Guilday: --No, we do not.

Unknown Speaker: It seems to me the case is not moot.

There is such a case where the person said he was not going to run again and this Court did hold it moot.

I forgot the name of it.

But there are other temporal things, like residency to qualify to vote, or pregnancy, that inevitably are going to be over for that particular individual.

Mr. Guilday: That is correct, but in the elections context, whether this particular candidate decides to run again, certainly there will be other candidates who may make--

Unknown Speaker: But he didn't ask for a class action.

Mr. Guilday: --He did not.

Unknown Speaker: And he has represented in Court today that he does intend to run again.

Mr. Guilday: That's correct, Your Honor.

Unknown Speaker: So if it's a pleading defect, it's a curable one.

Mr. Guilday: Correct, and that was going to be my response to Justice Scalia's question.

If it is a pleading defect, the fact that Georgia comes in and proves that he's not going to run again, then it's no longer a pleading.

Then it's evidentiary.

So--

Unknown Speaker: So how does this work?

I mean, if a case is moot, and then the parties come to this Court and they tell us something, a fact, make a factual statement that would mean it wasn't moot, are we just supposed to say, all right, now we treat the amendment as... the complaint as if it were amended?

I mean, how does this work?

I mean, there might be a lot of moot cases that people could file statements and say, well, we would like here to say a few things we didn't say in the district court which will make them not moot.

Are we now supposed to treat all these cases as if they weren't?

I mean, how does it work?

Mr. Guilday: --It works, Your Honor, in fact that Mr. Chandler and the other petitioners pled in their complaint, or they requested in their complaint for declaratory relief as well as relief--

Unknown Speaker: I don't see why that matters if it isn't a class action, and if there's no claim that he is going to run again.

I mean, a lot of people would like declaratory relief on a lot of theoretical questions that they have, very interesting questions of law, but--

Mr. Guilday: --This Court--

Unknown Speaker: --how does this all work?

I don't think it's just enough to come in and say, I would like some declaratory relief here in the absence of a showing that you have some plaintiff to whom it makes a difference.

Mr. Guilday: --This Court has responded to that very argument in the series of cases that I've just cited, which are in the elections context.

They have not required to my reading of those cases any actual allegational proof that the particular candidate who is the plaintiff in that particular case--

Unknown Speaker: Isn't it a class action on behalf of other people who are clearly going to run?

Mr. Guilday: --I do not believe that all of those were class actions.

I may be wrong in that, but I do not believe--

Unknown Speaker: Ms. Guilday, as I understand it, when this complaint was filed he didn't have to assert that he intended to run again because the election had not yet occurred.

There was clearly no mootness when the complaint was filed.

Isn't that correct?

Mr. Guilday: --That is absolutely correct.

Unknown Speaker: So the only issue is whether he had some obligation after the election to amend the complaint.

Now, is there some obligation?

Did the State, after the election, move to dismiss on the basis of mootness?

Mr. Guilday: Because we believed that the--

Unknown Speaker: Did the State do that?

Mr. Guilday: --No, it did not.

Unknown Speaker: So why would he amend his complaint?

Did the court ask him to amend, to come forward to show that what was originally clearly not moot is now moot?

Did the court make any such request?

Mr. Guilday: The district court--

Unknown Speaker: I can't imagine why he would have amended his complaint, no one having raised this issue.

And Justice Scalia will correct me on this if I am mis-citing 1653, but it does say that defective allegations of jurisdiction may be amended in a trial or appellate court, so--

--Thank you for the law, Justice Ginsburg.

[Laughter]

Ms. Guilday, may I ask you whether there is any place in the record in this case where we might find evidence of some particular or special need in Georgia for a suspicionless general search program for candidates for office in Georgia?

Is there any place where, in this record, we might find that, oh, there have been a number of officeholders, State officeholders in Georgia who have turned out to have drug problems?

Mr. Guilday: --There is no such record evidence in this case, Your Honor.

Unknown Speaker: Was any offered by the State and rejected?

Mr. Guilday: No, Your Honor.

The reason there was not... and I'm not sure at what stage you're talking about.

At the time the legislature passed this statute, Georgia law has consistently held from the beginning that in Georgia the statute itself evidences the legislative history.

There is no recording of any committee hearings, of any floor debate, anything like that.

Unknown Speaker: Is there any indication anywhere in this record that Georgia has a particular problem here with State officeholders being drug abusers?

Mr. Guilday: No, there is no such evidence, Your Honor, and there is no... to be frank, there is no such problem as we sit here today.

Unknown Speaker: Has this Court, in dealing with suspicionless searches, looked to what special needs there might be that would be an indication that a suspicionless... a blanket, suspicionless search would be appropriate?

Isn't that what we've looked to?

Is there a special need for the government?

Mr. Guilday: I think the question as to whether there is a special--

Unknown Speaker: Have we looked to that, or not?

Von Raab or other cases on which you rely, has this Court looked at a special need by the government--

Mr. Guilday: --Absolutely.

Unknown Speaker: --for a suspicionless search program?

Mr. Guilday: Absolutely, the Court has looked at special need.

Unknown Speaker: Okay.

So what is the need Georgia asserts here that is special?

Mr. Guilday: The special need that Georgia asserts is that in Georgia the elected officials that are included in this statute are by constitution trustees and servants of the public.

They are, by that constitutional provision, held to a much higher standard than is the ordinary citizen.

They are, in fact, fiduciaries to the public.

Unknown Speaker: Could Georgia require, instead of a physical search, an affidavit of a proposed candidate that that candidate is not now and has not been in the past a drug abuser, or user of illegal drugs?

Mr. Guilday: That requirement would raise issues involving the Fifth Amendment.

Obviously, the opposite side of that is a compelled statement as to whether or not I use drugs.

Secondly, this statute does not ask the candidate to say that I use illegal drugs.

All it does is say the negative of that, that on this particular--

Unknown Speaker: And you think a State could not ask a candidate to make some affidavit or certification regarding illegal drug use?

Mr. Guilday: --I believe it could not.

Unknown Speaker: Even if the State offers criminal immunity for making that statement?

Mr. Guilday: That would then raise questions as to Federal law, would that State immunity affect any Federal drug enforcement--

Unknown Speaker: What is your reason for saying that the State could not require an affidavit that you had not used illegal drugs as a candidate?

Mr. Guilday: --I think the question would, one, put in... it would be more intrusive and be more violative of the First Amendment rights of the individual to say, I have or have not in my past used illegal drugs.

Unknown Speaker: What First Amendment right is violated there?

Mr. Guilday: The compelled... the State is compelling him to make a statement which he may or may not want to make.

Unknown Speaker: Well, what if the State were to require a candidate to file an affidavit saying that he had complied with the financial disclosure laws of the State, and--

Mr. Guilday: I think the State does require that.

Unknown Speaker: --And would that, too, be a violation of the First Amendment?

Mr. Guilday: It would not.

Unknown Speaker: Why is one different from the other?

Mr. Guilday: The difference is, this Court has upheld the validity of the financial disclosure laws in several cases.

Unknown Speaker: But we've never upheld the validity of drug laws?

Mr. Guilday: You've upheld the validity of drug laws.

You have not upheld the validity of a affidavit... you have not addressed the issue, to my knowledge, of an affidavit saying I have or have not used drugs.

Unknown Speaker: But why isn't the First Amendment issue, if there is one, the same in each case?

In each case perhaps a candidate is unwilling to make that statement, and yet nonetheless the State requires it of him before he goes on the ballot.

Mr. Guilday: The issue in the First Amendment is, how intrusive is that of the First Amendment right?

Unknown Speaker: So it's more intrusive to find out that a person has violated the drug laws than they've violated the financial disclosure laws?

Mr. Guilday: The Georgia statute does not require a citizen to state that he has violated the drug law.

Unknown Speaker: No, but this is a hypothetical.

Mr. Guilday: As to an affidavit saying I have not violated the drug laws?

Unknown Speaker: Yes.

Mr. Guilday: I still think that is more intrusive, because it is covering a larger period of time than is a drug test on one specific day that discloses only the presence of five specific drugs.

Unknown Speaker: May I ask in that connection whether it would be constitutional or not to require an affidavit?

At least it would not be a search, whereas I think you would agree that this test does involve a search.

Mr. Guilday: This Court has established that it is a search, so--

Unknown Speaker: Now, similarly we go into the financial disclosure area and say an affidavit describing one's finances would not be a search, but do you think under the reasoning you're advancing in this case that Georgia could constitutionally require every candidate for public office to say not only what his finances are but say, you may examine all of my private papers in order to be sure I haven't committed a violation of law in the past, and you'd get a full picture of my finances.

So instead of a financial disclosure statement, we just say, you may search my papers, all of my private papers to try and find out if I've been guilty of any wrongdoing.

Would that be permissible?

Mr. Guilday: --That would not be permissible.

Unknown Speaker: Why not, because it would probably weed out the unqualified candidates.

Mr. Guilday: The test comes down again to balancing how intrusive is the nature of that infringement on First Amendment rights versus how intrusive is it in the Fourth Amendment context.

Unknown Speaker: You'd rather have your papers searched than your body searched?

I don't... I'm not sure that that's... as far as intrusiveness is concerned--

Mr. Guilday: I'm not sure it's a question of which I would rather.

This Court has held in the financial disclosure area that there are limits on what those statutes can require.

They have not gotten so far... this Court and other courts have not gone so far to require a full production of income tax records, which would reveal a variety of information... you know, how many times I've gone to the doctor, how many businesses I own, or what... all of the other financial transactions I might have had.

Questions--

Unknown Speaker: --Well, I suppose there are Federal laws that say income tax returns are not open to examination by third parties.

Mr. Guilday: --That's the point I'm making, that to compel--

Unknown Speaker: But there's no Federal law, is there, saying that a State may not require a proposed candidate to make certain certifications or affidavits before being a candidate?

There's no Federal law about that, is there--

Mr. Guilday: --There's no--

Unknown Speaker: --restricting the qualifications that a State may set for its elected officials?

Mr. Guilday: --The same constraints that apply in this case, and that is the First Amendment, how in the elections context--

Unknown Speaker: You think the First Amendment is violated by seeking... by a State requiring an affidavit of a potential candidate disclosing all criminal offenses of which the candidate has been convicted in the past?

Mr. Guilday: --Perhaps we should look at the Tenth Amendment.

The Tenth Amendment says that a candidate restriction or a ballot restriction is constitutionally valid if it is a reasonable and nonarbitrarily intrusive restriction upon the individual's fundamental rights.

Unknown Speaker: Well, I wouldn't have thought you could derive all of that from the Tenth Amendment.

It doesn't say anything about ballot restrictions that I know of.

Mr. Guilday: This Court has used the Tenth Amendment to authorize the States to control their own elections, to regulate their own elections.

Of course, within those constraints--

Unknown Speaker: So you take the position that a State cannot ask... make it a requirement for a candidate for State office to file an affidavit disclosing criminal offenses of which that proposed candidate has been convicted?

Mr. Guilday: --No, I do not take that position because criminal--

Unknown Speaker: You just did in response to my question, so what is your answer?

Can a State do that?

Mr. Guilday: --My answer is--

Unknown Speaker: Yes or no.

Mr. Guilday: --Yes, if it is otherwise constitutional.

Your question--

Unknown Speaker: Well, what other constitutional issues does that raise?

These are matters of public record.

Is it some constitutional violation to require an affidavit on some matter of public record--

Mr. Guilday: --No.

Unknown Speaker: --on a proposed candidate?

Mr. Guilday: No, and that was going to be my answer.

No.

Criminal convictions are matters of public record in most States.

In some States they are not.

And so no, that would not be a restriction that impinges the Constitution in any way.

However, the financial disclosure statements, because of the privacy interest that that intrudes, yes, does touch upon constitutional issues, and at that point this Court has called... has made limits on what information can be revealed.

It's not an across-the-board, open all your papers up to the--

Unknown Speaker: Can you... have you finished your answer to Justice O'Connor?

Can you... can I get you back to the Fourth Amendment?

That's the part of this case that I'm most interested in, because it does raise a Fourth Amendment issue.

Do you agree that if the State required, as a condition for running for office, that the candidate must allow a representative of the State to make... or, say, a certified public accountant of his own choosing to make a thorough examination of all his financial papers, including his income tax returns... I don't think there's any Federal statute that says he can't make his income tax returns available if he wants to... that that would violate the Fourth Amendment?

Do you think it would or would not?

Mr. Guilday: --I'm sorry, your hypothetical--

Unknown Speaker: My hypothetical is, the State requires not just a financial disclosure affidavit, but an opening up of the candidate's records for examination by a representative of the election commission, or whatever it is, to find out if this man may have committed some crimes or done a lot of bad things that the electorate would like to know about, such as possibly buying and selling drugs from time to time, which might be revealed by his financial records.

In order to accomplish that goal, could they require that sort of a general requirement of candidates?

Reveal your financial papers.

We don't want to trust your word that you did or did not do it.

Mr. Guilday: --It comes back to the same balancing test, and that is, how invasive are those... is that restriction, or--

Unknown Speaker: They're invasive in that they reveal everything that's in writing in your private files about your correspondence with people and your financial transactions.

Mr. Guilday: --I think that requirement would require the candidate to disclose much more information than would be permitted under the Fourth Amendment.

Unknown Speaker: Do you think it would violate... that statute would violate the Fourth Amendment?

Mr. Guilday: I do.

Unknown Speaker: And your reason for saying, this is different, is that the search is less intrusive?

Mr. Guilday: Exactly, just as this Court has held in Skinner, Von Raab, and Acton.

Unknown Speaker: Because it is a body search as opposed to a paper search?

Mr. Guilday: I don't think the distinction is body versus paper.

I think the distinction is what information is disclosed.

Unknown Speaker: Well, what about a case... let's take a building search.

I suppose the State has just as much interest in assuring itself that its candidates and its officers are not drug possessors and drug dealers as it has in assuring them that they are at least not current drug users.

Would it violate the Fourth Amendment to require a candidate to open his house to a search by some private investigatory agency which would then certify after the search that no drugs were found there?

Would that violate the Fourth Amendment?

Mr. Guilday: I believe it certainly would violate the Fourth Amendment.

Unknown Speaker: And why is opening the house less intrusive than opening the body?

Mr. Guilday: The difference is in the information that is disclosed.

Unknown Speaker: Well, the information in the one case says there are no drug residues in the body, and the information in the other case is, there are no drugs in the house.

Why is there a significant distinction between those two disclosures?

Mr. Guilday: There's two distinctions.

In the Georgia statute, yes, we require the candidate to submit the urine sample.

The information comes back only to him.

That is, whether or not there are--

Unknown Speaker: And he then has to pass it on... and I guess I was assuming... maybe I didn't state it carefully enough, but I was assuming that in my example he would have to pass on the certification from the private investigatory agency.

In each case the candidate could withhold the certification and be disqualified.

Assuming that, is there any distinction in principle or practice between the degree of intrusion?

Mr. Guilday: --The private investigatory agency has learned a substantial amount of information.

Unknown Speaker: Well, so does the laboratory or the tester in the case of the bodily search.

Mr. Guilday: The tester learns only the presence of those five drugs.

Any other individual that walks into a candidate's home or to my home learns everything about me, and I think that's the distinction, the amount of information that's disclosed by the required test.

Unknown Speaker: Or the amount of what is searched also.

Isn't that relevant also?

I mean, wouldn't your answer be different if the test in question, even though it only came up with those five drugs, is a test that required a full body search, body cavity search and everything else.

Mr. Guilday: That's absolutely true.

Unknown Speaker: Your point here is this is just a urinalysis.

That's all that's involved.

How does this test work, actually?

Like... I don't see how... I'm not totally familiar with how the statute works.

It sounds as if it tells a candidate, well, in some 30-day period of your choosing go in and get a drug test.

Is that what it does?

Mr. Guilday: Not within some 30 days of your choosing, 30 days within the qualifying deadlines for the particular office that you were running for.

Unknown Speaker: Is it a deadline, or is it when he files?

I mean, it's usually... say the deadline's September 30.

Suppose he files the preceding June 30.

Mr. Guilday: No.

This statute says--

Unknown Speaker: It has to be... in other words, the deadline's September 30.

It has to be in the month of September.

Mr. Guilday: --The particular offices that are involved in the statute have particular times for qualifying.

Unknown Speaker: So you have to be 30 days previous to that.

Mr. Guilday: Right.

Unknown Speaker: You find one day where you go in and you're drug-free.

Mr. Guilday: That's correct.

Unknown Speaker: All right, so how's that supposed to prove anything?

I mean, I guess the greatest druggie in the world could go in and find a day when he was drug-free.

Mr. Guilday: As this Court held in Von Raab, perhaps the greatest druggie in the world could not.

Unknown Speaker: Is that right?

That's what I don't know.

I mean, how... what are the facts?

That is, if a person does take drugs, is it impossible to find a day in a 30-day period when he's free of drugs and would pass the test?

Mr. Guilday: That, of course--

Unknown Speaker: Suppose he stays off drugs for a month preceding, or 2 months preceding the test.

Mr. Guilday: --If that particular individual can do that, yes, you're right, when he goes in for his drug test, his drug test is going to become positive--

Unknown Speaker: How long in advance of the test do you have to stay off drugs if a moderate drug user, before the moderate drug user is drug-free on the day of the test?

Is 3 weeks good enough?

Is 4 weeks good enough?

Mr. Guilday: --The cases before this Court have cited expert testimony giving a range of from 22 days until a month before.

Unknown Speaker: All right.

So I mean, what is the statute doing?

Mr. Guilday: It's doing--

Unknown Speaker: Is it simply... what is the theory behind the statute other than making a political statement?

Is it that there are some people who want to run for office who find it impossible to refrain from drugs for 22 days prior to their voluntarily going in and taking the test?

I mean, what is the theory of the statute?

Mr. Guilday: --I think that is one purpose, to--

Unknown Speaker: Is that an important purpose, a purpose that we find those people in society who are not able to stay off drugs for 22 days and therefore... is that the basic idea?

Mr. Guilday: --That is not the primary reason, no.

It is a reason that this Court in Von Raab found to be significant.

In our case, the primary purpose we would offer this Court for this statute is that the information that a negative drug test gives to the public about the individual candidate is significant.

Unknown Speaker: Has this Court ever gone into the... I mean, I thought in Vernonia, for example they're like random drug-testing.

Random drug-testing, of course, catches people.

Mr. Guilday: That's correct.

Unknown Speaker: Have there been cases which are not random drug-testing?

Mr. Guilday: Von Raab involved pre-employment or pre-promotion testing, one-time basis, of individuals who sought positions in the various categories.

It was not random testing.

Unknown Speaker: Ms. Guilday, do I understand you correctly that your major reason, Georgia's major reason is symbolic to the extent I think you said they wanted the public... they wanted the people who were in public office to have what it takes to exercise their best judgment.

Is that--

Mr. Guilday: That is our purpose.

It is not our position that that is a solely symbolic purpose.

It may have symbolic implications, but because a statute is symbolic, if it's otherwise constitutional, does not render it constitutional.

Unknown Speaker: --This is my question, then.

If it comes down to, this is not like the random test that's designed to catch people but is in part symbolic, and the State is making a judgment, and then we have a Constitution with the Fourth Amendment in it, if we're choosing between the public perception, the lesson that we want to teach the people, doesn't the constitutional amendment come first, come before the notion that we want people to show that they can exercise their best judgment by being willing to submit to drug testing?

Mr. Guilday: My way of answering that question is what I started saying in the beginning.

The Fourth Amendment requires the balancing test that this Court used in Skinner, Von Raab, and Acton to determine whether or not a particular--

Unknown Speaker: But my question to you is, then, doesn't the Fourth Amendment always win on that balance unless you have a good reason, a reason beyond, we want to show that these people take tests.

One reason is that you would catch people, as was the case in the train engineer, but here that's not the purpose.

Mr. Guilday: --The Fourth Amendment always wins out if in that balancing test the government interests are not sufficient to outweigh the privacy interest.

It is our position that when you do that test in an elections context in which the people have a right to know anything about a candidate which touches on their qualifications for office--

Unknown Speaker: Then go for... once they're in office, and they're going to be in and maybe run for election, so do this periodically?

Can people have any less... is their interest any less if we're doing this balancing?

Mr. Guilday: --No, the balancing is no less in that context.

The distinction or the reason for not requiring them then primarily are procedural.

Once--

Unknown Speaker: But you could... as a matter of constitutional law, Georgia could say, annually, or even randomly, everyone in office in this State has to have a drug test.

Mr. Guilday: --Everyone in the category of offices that are included in the statute, yes, I believe Georgia could have--

Unknown Speaker: But if you rely on the public's right to know everything about the candidate, as I think you described it, it seems to me that that would justify a totally unrestricted search of the house and all private papers.

Mr. Guilday: --I said that and I... and that is a quote from one of this Court's cases.

However, obviously the Constitution has to define everything.

Unknown Speaker: And the Constitution looks a little more closely at totally suspicionless searches, doesn't it?

Mr. Guilday: It does.

Unknown Speaker: Yes.

I take it... or I took it that part of your argument for the State interest that sort of overcomes the private interest here is based on the Tenth Amendment, and I'm not sure that I understand that argument.

I mean, I take it you do not argue that the Tenth Amendment in effect gives the State some kind of right or some dispensation from the Fourth Amendment, so what is the Tenth Amendment argument?

Mr. Guilday: The Tenth Amendment argument is, in this balancing test that's required in the Fourth Amendment, that in the usual context the scales start out even for both sides.

What the Tenth Amendment does is, it tips those scales from the outset on the side of the government because--

Unknown Speaker: Why?

Mr. Guilday: --Because the Tenth Amendment in the cases this Court has held in the elections context say, we are going to give great deference to the State's own characterizations of its interest in the elections and in particular in the qualifications of its elected officials.

Unknown Speaker: Well, there's no question of there being an assertable Tenth Amendment interest there, but there's no question about there being an assertable Tenth Amendment interest to prosecute homicide, but that doesn't affect the balancing that goes on in determining... or that does not affect the Fourth Amendment analysis.

Mr. Guilday: I'm not sure I understand--

Unknown Speaker: Well, I suppose if someone challenged the right of the State to prosecute murder we would say, well, that certainly is not one of those powers that was taken away from the State when the national Constitution was ratified.

Mr. Guilday: --That's absolutely--

Unknown Speaker: I don't see how that would affect the Fourth Amendment analysis when somebody objected to an unreasonable search and seizure that had resulted in evidence that the State wanted to introduce in a homicide case.

Mr. Guilday: --The distinction being that the Tenth Amendment and in particular the elections context has repeatedly been given by this Court special consideration.

In Gregory--

Unknown Speaker: Well, we've said that a great deal of discretion over elections is within the State's power, but that's as far as we've gone, isn't it?

Thank you, Ms. Guilday.

Mr. Guilday: --Thank you, Your Honor.

Unknown Speaker: Mr. Chandler, you have 5 minutes remaining.

Rebuttal of Walker L. Chandler

Mr. Chandler: An interesting aspect of the Tenth Amendment question to me is that that the States... that which was not granted to the Federal Government specifically was... the rights not granted to the Federal Government was reserved to the States or the people respectively, and when the States appear to jealously protect their rights, they are not so jealous in protecting the rights that the people reserved unto themselves, and one of those rights is that a citizen should be free from unreasonable searches and seizures.

Unknown Speaker: Mr Chandler, do you think this case would be stronger for the State if it was random drug-testing?

Does that thought comfort you, if they amended this statute to make it random?

Mr. Chandler: It would not comfort me, Your Honor, and I'm not sure--

Unknown Speaker: This is stronger, isn't it, because it says... basically what she said was that this is the State's interest only in making certain that the really serious drug users who can't stay off drugs for 30 days, which you have to be quite a heavy user, that they want to identify those people, so she said that's a very important interest, identifying these very, very heavy drug users, and against that it's a fairly limited intrusion.

I think that was her point.

So what would your reply be to that?

Mr. Chandler: --The State might be in a better position if they had some sort of random search system for people who had been elected to office.

However, I think even such a search would violate the principles that have been enunciated by this Court in Skinner, Von Raab, and the Vernonia School District case, because there has to be some nexus between the tests, and there has to be some compelling State interest, and there has to be a showing of, not potential harm, but an actual existing harm.

I don't know, for example, that they've ever shown that commissioners of agriculture in Georgia have a heavy drug problem, or for that matter lieutenant governors.

Unknown Speaker: Well, what if they show that there was a commission of agriculture in Alabama and a lieutenant governor in Alabama who turned out to drug addicts.

Does Georgia have to wait for it to happen in Georgia?

Mr. Chandler: I'm not sure, Your Honor, but I would sort of think so.

I would also just--

Unknown Speaker: But isn't your real argument they have to wait at least till it happens in Alabama.

[Laughter]

Mr. Chandler: --A lot of things happen in Alabama that don't happen in Georgia, Your Honor.

[Laughter]

Unknown Speaker: Does the State have to show that he was a worse secretary of agriculture because of that drug habit?

Mr. Chandler: I would think so, Your Honor, although arguably--

Unknown Speaker: I mean, it's supposed to be good for poetry.

I don't know what it does for--

[Laughter]

Mr. Chandler: --And how... and also, Your Honor, how could we argue that drug users would be any worse than the General Assembly Georgia has now.

[Laughter]

There's an old saying down in Georgia that no man's liberty or property is safe as long as it's in session, and 21.2.140 is a perfect example of that, where for the most cavalier of reasons, just pure symbolism, they want to take away people's Fourth Amendment rights, they want to make people stand up and take these tests so as to somehow show that they are... by a piece of paper that they... that's easily avoided that they can be qualified to hold high office.

Unknown Speaker: One point that you made in your brief was that this is... this test is not very serious because it would catch at best the worst cases, but you certainly wouldn't find more satisfactory a test that was less hard to beat, a test more pervasive, so I didn't understand your point about the lack of effect of this test.

Mr. Chandler: This test is even worse because it involves cheap symbolism.

The other test would violate the Fourth Amendment protections announced by this Court in Von Raab and the other cases as being suspicionless.

I would like to just say finally that this all reminds me of what Franklin warned us about, is that people who would give up some of their liberty to get some security will end up with neither liberty nor security.

And we are rapidly approaching a time in this country where there are absolutely no technological limits to what a government can do to make sure that people are obeying its edicts.

There will be a possibility of hair testing to show that people can... have used something that the government has declared illegal within the last 6 or 8 months based on where in the hair... the fact that we can force obedience by these people should not necessarily mean that we should do so, especially if what that means is that we have to give up our constitutional rights to do so.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Chandler.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Washington v. Glucksberg - Oral Argument

Fri, 09 Jan 2009 14:50:08 +0000

Case:

Washington v. Glucksberg

Media File:

96-110_19970108-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of William L. Williams

Chief Justice Rehnquist: We'll hear argument now in No. 96-110, Washington versus Harold Glucksberg.

Mr. Williams--

Mr. Williams: Mr. Chief Justice and may it please The Court.

We are here today representing the people of the State of Washington to defend their legislative policy judgment to prohibit assisted suicide.

The Constitutional concept of ordered liberty requires the drawing of clear lines to delineate that conduct which is permissible from that conduct which is not.

The Washington statute prohibiting assisted suicide was forged at the common law, tempered by centuries of legal traditions and ratified by recent legislative action and by a direct vote of the people of Washington.

The same prohibition has been enacted by the legislatures of virtually every state and the line that it draws in the end-of-life context is supported by the organizations of the health care professionals who care for the sick and dying on a daily basis.

The issue here today is whether the Constitution requires that the social policy developed by Washington voters must be supplanted by a far different social policy, a Constitutionally recognized right to physician-assisted suicide that is contrary to our traditions and overrides the important state interests that are served by the Washington statute.

In contrast to the clear line that is drawn by Washington law, Respondents offer a line that is unstable and inconsistent with the concept of ordered liberty.

It is inconsistent with liberty in three respects.

First, it is limited to a very few of our citizens.

Secondly, those few must justify their exercise of this so-called Constitutional right.

Thirdly, if... even the Respondents and their amici agree that this right, if it is to be exercised at all, if it is to be recognized at all, must be closely regulated.

And their equal protection argument demonstrates just how unstable the line is, because they suggest that flowing from this Court's assumed recognition of a right to refuse treatment in the Cruzan case, there is a seamless web of Constitutional... excuse me, a seamless... stream of Constitutional rights that flows from that decision.

Justice Ginsburg: Mr. Williams, in the Cruzan case, The Court recognized a liberty interest and yet it upheld restrictive legislation.

Mr. Williams: Yes, ma'am, Justice Ginsburg.

Justice Ginsburg: So couldn't one take the same approach here, there is a liberty interest, but because of the risks and dangers involved, considerable state regulation is permissible?

Mr. Williams: Yes, Your Honor, one could take that approach.

The problem that that would create by recognizing a liberty interest is that many states are considering whether to move the line by legislation... in fact, our sister state of Oregon has done just that... in the beginning of a recognition of a liberty interest may limit their flexibility to deal with this complicated area.

We agree that, even if you find the existence of a liberty interest, that the same important state interests that were present in Cruzan are present in this case and would justify the statute nonetheless.

Justice Ginsburg: And the bottom line of Cruzan was to uphold precisely what the state did.

Mr. Williams: That's exactly right, Your Honor.

Justice O'Connor: What are the state interests you would argue support the law here in the event that a liberty interest is recognized?

Mr. Williams: Your Honor, there are three important state interests that are involved.

The first one is life, which includes the state's interest in prevent... is a subset the interest of preventing suicide.

And, in the hierarchy of Constitutional value, certainly the protection of life is the highest.

In fact, one could argue that that's why people organize into communities, into civilized societies, is to protect life.

The second one is to prevent abuse and undue influence, and certainly the risk is higher in the physician-assisted suicide context than it is in the refusal of treatment context.

And thirdly, there is a strong interest in regulating the medical profession.

Precisely because physicians have the capacity to injure or perhaps cause the death of their patients, the state has an important interest in maintaining a clear line between physicians as healers and curers and physicians as instruments of death of their patients.

And we believe all three of those interests together or frankly any one of them separately would support the state legislation in this case.

Justice Souter: Mr. Williams, taking the second one separately, the fear of abuse, the argument runs in various forms that, if what the... what the two Courts of Appeals so far have recognized prevails, the risk is that, in fact, the practice of assistance, so-called, is going to sort of gravitate down to those who are not terminally ill, to those, in fact, who have not made a truly voluntary or knowing choice.

And ultimately it's going to gravitate out of physician-assisted suicide into euthanasia.

One of the difficulties that I have with this case and with the one that follows it is I'm not sure how I should weight or value that risk or those risks.

What the argument raises is plausible.

I mean, it's easy to see.

But I don't know how realistic it is.

And I don't know how much weight to put on it.

What should I do, where should I look, or what methodology should I pursue to try to solve my difficulty?

Mr. Williams: I would make at least two suggestions, Justice Souter.

First, look at the Respondents' equal protection argument and contrast that with the doctrinal support that they offer for a liberty interest in this case.

The doctrinal support that they offer does not provide the limitations that they suggest should be in play with respect to this liberty interest.

Yet their equal protection argument that equates the withdrawal of medical treatment, in effect, which is a time-honored right under our common-law, with the physician-assisted suicide, when assisted suicide itself was contrary to the common law, it was a common-law crime, and yet they equate those two, while these Respondents may say that what they are trying to do is limit this to a narrow class, the next case will argue much the same as they have, that it should be extended perhaps to the chronically ill, perhaps to those who... to euthanasia for those who can't administer that.

And in fact, some of their amici have acknowledged that.

Justice Souter: Let me direct you into a narrower channel.

I understand the, let's say, the problem of doctrinal slippage which is what you're talking about here.

But there's also a, just, kind of an empirical component.

There's is a prediction about what, in fact, would happen even if the doctrine is maintained pure, even if we draw a line and that line is never going to be crossed.

What basis do I have for evaluating the claim that, in fact, apart from doctrine, this slippage is going to occur and that, in effect, the innocent are going to die as a result of this?

Mr. Williams: Again, the second suggestion I was going to make would be to look at the district court decision in the case involving the Oregon statute, where the district court noted that the proponents of the Oregon law which is limited in the same way that these Respondents suggest it should be, to the terminally ill.

But the proponents of that law acknowledged in that district court proceeding that they intend... that this was a first step and it would be extended by statute.

Justice Souter: But that's a variant... I think that's a variant of the... sort of the problem of doctrinal slippage.

This is step one and they have step two or three or whatever in mind.

My question is, let's assume that there isn't going to be doctrinal slippage, let's assume that we're simply evaluating the argument that if you recognize what is being requested now, in fact, what will happen is that people who don't consent, who are not terminally ill, who do not even self-administer, are going to end up dying as a result of this.

What empirical basis do I have for evaluating that argument?

Mr. Williams: Well, there's no empirical basis in our country, of course, because we do not have a history of recognizing that.

Justice Souter: Is there anything beyond the references to the Dutch experience?

Mr. Williams: Well, there's the references to the Dutch experience which are I think important and telling in terms of modern history.

And, of course, there is the German experience in the early 1930s.

Justice Ginsburg: What about the Australian, wasn't there something about Australian law?

Mr. Williams: The northern territory of Australia, Justice Ginsburg, has authorized by statutory action a form of physician-assisted suicide.

And I think a state may legitimately create an exception to its homicide laws for physician-assisted suicide.

And if it is subject only to rational basis rule... review, then I think that the line could be maintained at the terminally ill.

Chief Justice Rehnquist: The Australian proposal was not as the result of a judicial decision I take it.

Mr. Williams: That's my understanding, Mr. Chief Justice.

Justice Ginsburg: Indeed it was... whatever the legal status of the Netherlands, but courts elsewhere don't have the kind of Constitutional review that we do either.

So--

Mr. Williams: I believe that's correct, Justice Ginsburg.

Justice Ginsburg: --But has there been a lot in the briefs about the Netherlands experience, there is this limited legislation in Australia.

Has there been any evidence about what's going on under that legislation?

Mr. Williams: I think that legislation is so new, my understanding it just became effective in this past year in 1996, that we don't... I'm not aware of any--

Justice Stevens: May I ask you a question.

You referred to the... your sister state Oregon's experience.

And one of the most powerful arguments in support of your position in this case is legislatures might adopt the remedy rather than the courts.

Is it your view that a legislature does have the Constitutional authority to authorize assisted suicide?

Mr. Williams: --Yes, Justice Stevens, it is.

Legislature under its police powers can define the crime of homicide, and a subcomponent of that is the current physician... excuse me, the current assisted suicide statute.

Justice Stevens: The district court in that case disagreed with that, I think, didn't it?

Mr. Williams: My... Your Honor, the district court said that the statute that they adopted did not have adequate safeguards and, therefore, did not qual... did not meet rational basis review for equal protection purposes.

It did not say that, as a Constitutional concept, they couldn't strengthen those.

Chief Justice Rehnquist: Didn't the Ninth Circuit in this case kind of express its disapproval of the district court ruling in Oregon?

Mr. Williams: That's correct, Mr. Chief Justice, Judge Rhinehart.

Justice Stevens: Of course, you're not endorsing the Ninth Circuit's position, though?

[Laughter]

Mr. Williams: Let me be perfectly clear on that.

[Laughter]

Justice Kennedy: You indicated in your response to Justice Ginsburg that, if we assumed a liberty interest but nevertheless found that the very substantial arguments you have made outweighed it, so that the Washington laws would remain in effect, that this would somehow be confining to legislators and regulators?

I wasn't quite sure that I followed that.

I understand the doctrinal significance of this suggestion that was made.

I wasn't sure of its practical implications that so concerned you.

Would you expand on that?

Mr. Williams: What I was trying to suggest, that... maybe if I could explain it differently.

If you accept our position, which is rational basis review would be the appropriate level of review, then states would have the maximum flexibility to look at this complicated and complex issue and decide on a state-by-state basis.

I don't know for certain that assuming a liberty interest in sustaining the statute would complicate it.

I am concerned, depending on how that's expressed, that it may complicate it, that's all I was trying to say.

Chief Justice Rehnquist: Well, it would be very difficult to assume a liberty interest and rule in your favor in this case, would it not?

Because if we assume a liberty interest but nonetheless say that, even assuming a liberty interest, a state can prohibit it entirely, that would be rather a conundrum.

Mr. Williams: Well, Mr. Chief Justice, I disagree to this extent: I believe the state... the same important state interests that were implicated in the Cruzan case are implicated here but more strongly, because in the context of withdrawing life support and in the physician assisted suicide there are some different factual--

Chief Justice Rehnquist: But in Cruzan what we were dealing with was a state rule that said you had to prove a certain thing by clear and convincing evidence.

Here we're not dealing with any sort of an evidentiary rule, we're dealing with an outright prohibition.

Mr. Williams: --That's correct, Mr. Chief Justice.

Justice Scalia: I suppose that proclaiming a liberty interest is cost-free so long as you can proclaim them and then say, however they can be outweighed by various social policies adopted by the states.

We can say there's a liberty interest in murdering people, however it's outweighed by the state's interest in preserving the lives of its' citizens.

I guess we could do that, couldn't we?

Mr. Williams: That's true, Justice Scalia.

We... the other point I was going to make to Mr. Chief Justice, in response to your question, there is the Oregon Employment Security Division versus Smith case, the peyote case, where the court there, involving a much stronger interest, the First Amendment free exercise of religion, nonetheless upheld an absolute ban on the use of drugs because of the state's important interest in its drug enforcement policies.

Justice Kennedy: The analysis usually is to ask and to determine whether there's a liberty interest at the outset rather than say that your... that that inquiry is going to be affected by the standard of review that you use.

You don't say, oh, well, I'll find liberty interest because it's going to be a rational basis and everything is going to come out all right.

Mr. Williams: That's correct, Your Honor.

Mr. Chief Justice, I'd like to reserve the rest of my time for rebuttal.

Argument of Walter E. Dellinger, III

Chief Justice Rehnquist: Very well, Mr. Williams.

General Dellinger.

Mr. Dellinger: Mr. Chief Justice and may it please the Court:

Justice O'Connor: General Dellinger, these last questions, of course, really should be addressed by you because it's your brief that takes the position that there is a liberty interest, but nonetheless, the law should be upheld.

Mr. Dellinger: --That is correct, Justice O'Connor.

The liberty interest we would recognize, however, unlike the argument made by Respondents is not a liberty interest in dying.

We recognize the existence of a liberty interest because, on a careful reading of the complaints in this case, the Plaintiffs allege that they were undergoing severe pain and suffering.

And the state had a rule which prevented them from the means of relieving that pain and suffering.

Narrowly conceived, we believe that that state's... the kind of liberty interest that, while not fundamental, while not even as strong as the liberty interest in Cruzan, nonetheless is not the ordinary liberty interest of shifting commercial arrangements, where a state merely need have a plausible--

Chief Justice Rehnquist: And what... what precisely is the liberty interest that you urge us to recognize?

Mr. Dellinger: --We urge you to acknowledge, Mr. Chief Justice, that we think it's not critical to the case, but we urge you to acknowledge that a person states a cognizable liberty interest when he or she alleges that the state is imposing severe pain and suffering or has adopted a rule which prevents someone from the only means of relieving that pain and suffering.

This is a narrow liberty interest, but it's... and it's... and it's--

Chief Justice Rehnquist: It certainly wasn't the basis on which the Ninth Circuit decided that.

Mr. Dellinger: --That is correct, that is correct.

And we do not agree with the Ninth Circuit's conclusion that there is a general liberty interest in dying.

But we... and indeed this does not... this isn't an acknowledgment on our part that does not advance our conclusion that these state laws are constitutional.

But we felt it important to indicate that--

Justice O'Connor: And how does it differ from the liberty interest recognized or assumed, let's say, by the plurality in Cruzan?

Mr. Dellinger: --That is a liberty interest that is sort of a... deeply a part of the antitotalitarian principle, the state may not compel a person to undergo unwanted medical treatment, recognized very substantially in history.

Here I think we're... we merely look at cases like Ingraham against Wright involving corporal punishment or the prisoner medical cases about not denying prisoners access to pain relief to indicate that there is a liberty interest.

But the critical part here, I think, is that here, as in Cruzan, the critical issue is the state's overwhelming interest.

States have long had laws that affirm the value of life by prohibiting anyone from promoting or assisting a suicide and I believe that no one disputes the constitutionality of those laws as a general matter.

The actual question before The Court is whether the Constitution compels an exception to those laws here.

In our view it does not.

The--

Justice Scalia: Mr. Dellinger, we've always had such laws and you go back as far as Blackstone and find Blackstone saying that suicide is not excused even when committed, quote, to avoid those ills which persons had not the fortitude to endure.

When is it that you suppose this liberty interest that didn't used to exist sprang into existence?

When?

1963?

What year do you think it... it came to be?

Mr. Dellinger: --1790.

Justice Scalia: 1790?

Mr. Dellinger: I'm saying... the answer is not... not in jest.

The liberty interest that we suggest unlike the generalized liberty interest in defining the time and manner of one's death, and... and we would have made our oral argument easier if we had just gone along with the states on this.

But... but... but, in fact, we believe that, that if one alleges the kind of severe pain and agony that is being suffered here and that the state is the cause of standing between you and the only method of relieving that, you have stated a constitutionally cognizable liberty interest to which a merely plausible response is not true.

If the state, for example, Justice Scalia, barred all pain medication for the terminally ill on a theory that we felt was merely plausible, we think that you would need something more substantial, not perhaps a compelling governmental interest but... but--

Justice Scalia: But that has nothing to do with... that has nothing to do with suicide, it has nothing to do with--

Mr. Dellinger: --That is correct.

Justice Scalia: --with a continuous tradition in our society, if not, indeed, in all western society against... against suicide.

Mr. Dellinger: That is correct.

I think our difference is that... is... is... is perhaps only one of where the greater analytical clarity comes in.

We put this on the side of... of the state's compelling interest, because here I think what is critical is that, if this... while the individual stories are heartrending and make the case for an exception one that strikes a resonant chord for many people, it's important for this Court to recognize that, if you were to affirm the judgments below, lethal medication could be proposed as a treatment, not just to those in severe pain, but to every competent terminally ill person in the country.

Justice Souter: General, it could.

The problem that I'm having is as my earlier question indicated is I... I don't know how to weight this probability and this risk.

Help me out on that.

Mr. Dellinger: Justice Souter, it is said that the risks that... that are suggested I think by all of the parties are best weighed by you with the understanding that no American jurisdiction has ever recognized physician-assisted suicide as a lawful practice.

So that there's no experiential basis for the conclusion that there could be adequate safeguards to protect those who are suffering from depression and who may request lethal medication because of untreated depression which is--

Justice Souter: Of course, that... that might be a... a perfectly legitimate argument for saying that, on the... on the subject of recognizing the... the... the... the ultimate cognizability of... of new substantive due process rights, timing is a legitimate factor in what The Court does and maybe, in fact, you might argue The Court should wait until it can know more--

Mr. Dellinger: --It would be--

Justice Souter: --before it passes ultimate judgment.

Mr. Dellinger: --Yes.

Yes, in light of the multiple uncertainties we refer to in our brief, it would be I think a grave mistake for The Court to impose on 50 states such a marked transformation that had never been tried by even a single state.

Justice Ginsburg: General Dellinger, now or ever, because this case raises that very basic question of who decides.

And is it simply a question of waiting for more experience abroad or in Oregon or is it... but, what is your position?

Is this ever a proper question for courts as opposed to legislatures to decide?

Mr. Dellinger: Justice Ginsburg, we believe that the states have interests that are enduring that would sustain a decision by the state simply not to introduce lethal medication.

It is--

Justice Scalia: But you say... you say only if we agree with the states, you say there is a liberty interest which... which... which tosses the whole matter into this Court so that it's up to us to decide whether indeed the states are right or wrong that this is a dangerous practice.

And, if we think they're wrong, then... then the liberty interest must prevail.

Mr. Dellinger: --Yes.

Justice Scalia: That's the consequence of recognizing the literate.

Mr. Dellinger: Yes, that is... that is correct.

And I would... but I would... I would refer you... I know one seldom reads but just two sentences of the New York State task force address Justice Souter's question on life and... and, well, as I say in our briefs and both parties' briefs and many amicus briefs.

But after... after study since 1982 they said that for purposes of public debate--

Justice Kennedy: What page?

What page are you reading from.

Mr. Dellinger: --Page 120, Justice Kennedy, the third paragraph below the middle of the page.

They... they note that one can deposit ideal cases in which all recommended safeguards would be satisfied: Patients would be screened for depression and offered treatment, effective pain medication would be available, and all patients would have a supportive, committed family and doctor.

Yet the reality of existing medical practice in doctors' offices and hospitals cannot generally meet these expectations, however any guidelines or safeguards might be framed.

The systemic dangers are dramatic.

The least costly treatment for any illness is lethal medication.

And the medical profession tells you in briefs from the A.M.A., The National Hospice Organization, the American Geriatric Association, the nurses association, that we have a system in which we are struggling to try to provide proper treatment for pain and for depression.

Someone who is not treated for pain is not in a position to make the kind of decisions they need to be forced to make here.

Justice Breyer: So... so what... what should I make I thought in these very helpful briefs and there were so many helpful briefs, the statistics, and I'm quite serious here, they were very helpful, on that worried me the most that says that only between 1 percent or 2 percent of possibly all people need die in pain.

But 25 percent or more do die in pain.

And I suppose that the first fact isn't of much help to the people in the second category.

I'd like to get a... I'd like to get a reaction from you.

Mr. Dellinger: The fact that 25 percent unnecessarily die in pain shows the task awaiting the medical profession, but it's not a task that calls for the cheap and easy expedient of lethal medication rather than the more expensive pain palliative.

Argument of Kathryn L. Tucker

Chief Justice Rehnquist: Thank you, General Dellinger.

Ms. Tucker, we'll hear from you.

Ms Tucker: Thank you.

Mr. Chief Justice, and may it please the Court:

This case presents the question whether dying citizens in full possession of their mental faculties at the threshold of death due to terminal illness have the liberty to choose to cross that threshold in a humane and dignified manner.

Does our constitution endow government with the power to intrude into--

Chief Justice Rehnquist: You say... you say they have the... have the liberty to choose.

But no... as I understand it there is not an issue here.

Any patients choosing to die or to commit suicide, it's that they want assistance from a physician to do it, that's what we're arguing about.

Ms Tucker: --That's correct, Your Honor.

And the reason why we are focused on that is because these dying patients want a peaceful death, they want a humane death and they want a dignified death.

And, in order to access that kind of death they need the assistance of their physician.

The physician is the gatekeeper for the medications that can bring that peaceful end to the suffering that for these patients is intolerable.

Justice Scalia: Ms. Tucker, why... why is it limited to those on the threshold of death?

I mean suppose I have, you know, terrible pain and the doctor says you're going to be in terrible pain for ten years.

Ms Tucker: Your Honor--

Justice Scalia: Why shouldn't I have the right to suicide.

Ms Tucker: --Justice Scalia, we do draw the line at a patient who is confronting death.

That individual has a very different choice than the one you posit.

This individual does not have a choice between living and dying.

This dying patient whose dying process has begun and is underway, this individual has only the choice of how to die.

Will that death be brutal, will that death be peaceful.

Justice Scalia: I hate to tell you, but the dying process of all of us has begun and is underway.

It's just a matter of time.

And it seems to me that the patient who has ten years of agony to look forward to has a more appealing case than the patient who is at the threshold of death.

Ms Tucker: Well, I think not, Justice Scalia, because the patient who is facing this question of how to die... this is the final decision for this individual.

This is a patient who physicians do not have the difficulty that the state would suggest in determining that, in fact, the dying process really is imminent at this point.

Now, keep in mind in the record in this case it was never disputed that these patients who came forward to bring this case were, in fact, quite close to death and then subsequently all did die.

There's no dispute in the record about that.

The physicians each testified in both of these cases that it is their regular medical practice to make that diagnosis and of course--

Justice Ginsburg: Ms. Tucker, you... you... you said on one end of it that it's got to be the terminal point of life, however one defines soon to die.

And that's not as clear.

But what about the person who is in such agony that that person is not able to assist in her own suicide so she needs the doctor or the nurse to administer the lethal dose.

Isn't that person in a more sympathetic situation than the one you're describing?

Ms Tucker: --Your Honor, we don't believe that that class of persons in reality would exist.

We believe that any patient who could fully express their wishes with regard to this end of life choice--

Justice Ginsburg: Let's take this person.

I'm in agony, but I just can't do it myself, please do it for me.

Ms Tucker: --I see your point.

I think you are describing someone who just can't bring themself to do it, as opposed to having the--

Justice Ginsburg: But wants it and six psychiatrists will swear that that's the mental state of that person.

Ms Tucker: --Your Honor, we would posit that that is not permissible, that self-administration does address an important state concern here, and that's the concern of voluntariness.

We agree that this decision should always rest with the individual and that it should be authentic and voluntary.

And to require the individual to not only make this choice but then to take the final act, we believe assures voluntariness in an important way.

Justice Ginsburg: Now, we believe everything that you said, it seems to me, could go on in a legislative chamber.

Where should we draw the line?

Ms Tucker: Well--

Justice Ginsburg: To say that as a matter of Constitutional due process you include the person who is able to take the pill herself but exclude the one whose mental state is the same?

I don't understand how you get that line out of a grand due process clause.

Ms Tucker: --I think again in the constitutional analysis, Your Honor, we are considering the state interests as balanced against the patient's interests.

And because voluntariness is so essential here, an additional guarantee of voluntariness tips that balance differently.

And I would posit that, when the patient is fully mentally competent, is making a reasoned and deliberative decision and is able then to take final action on that decision, that the balance clearly tips in favor of individual having the right to exercise this choice.

Justice Scalia: Why should that decision, if it's competent, reasoned, and deliberated, why should it be limited to physical pain?

What... what about the patient who has terrible emotional suffering in life and just says life is not worth it anymore?

Ms Tucker: That--

Justice Scalia: You would not allow assisted suicide in that case, I take it?

Ms Tucker: --No, Your Honor.

Justice Scalia: Why is that?

Because we make some... the government makes the judgment that physical pain is worse than emotional suffering?

Ms Tucker: Your Honor, mental competency and freedom from a mental disability or instability including such as a condition--

Justice Scalia: You don't have to be--

Ms Tucker: --like depression.

Justice Scalia: --You don't have to be unstable to think that your life is not worth living, do you?

Or is the government going to make that judgment?

Ms Tucker: I think that mental competency here is a bright line and that the... that decision as to whether the patient is mentally competent, of course, is a clinician's judgment.

Justice Scalia: Assume mental competence and assume a patient who is thoroughly mentally competent, is not at the threshold of death, is not in physical pain, but does not want to live anymore.

Ms Tucker: Well, and again that patient is not confronted with the choice that we address in this lawsuit.

Justice Scalia: What I'm asking, why you... how can you limit the choice you're presenting to us to the physical pain situation?

Ms Tucker: That individual, if intervention occurs and is not allowed to make this choice, may one day rejoice in that.

It is an individual who has an expectation of life that could then be a fruitful and fulfilling life which is not the case with a patient whose life is ending due to the progress of terminal illness.

That patient has an entirely different character of interest.

And I do want to address--

Justice Scalia: And you're willing to have the government impose that judgement, even though the patient says these emotional scars will never heal.

Ms Tucker: --I believe that the constitutional--

Justice Scalia: And I've tried it for ten years, I want out; you're willing to let the government make that judgment for the person, but not willing to make the judgment that your... your physical pain is... is not as harmful as a few more years of life would be.

You're not willing to let the state make that judgment, but you will let the state make the judgment, your emotional pain is not important enough.

Ms Tucker: --I believe that's an entirely different case, Your Honor.

And I did want to respond to what the Solicitor General is suggesting--

Justice Kennedy: Well, but it is... it is different.

But it means that there is a limit to this autonomy that you are supposing.

Ms Tucker: --Yes, Your Honor.

Justice Kennedy: And you are saying that the state can tell individuals that they may not take their own life.

Ms Tucker: Yes, Your Honor, absolutely.

Justice Souter: But I... I still... I... I confess I don't understand what the limit is.

You, for example, a moment ago said the... the person with a longer life span may indeed someday rejoice that... that... that he was prevented from making the kind of decision effectively which you would allow here.

I mean, you can argue that of the... of the terminally ill patient.

I mean, we... if we want to be anecdotal, we've heard anecdotes about those who suffer and at the moment of death say I have fought the good fight.

I mean, you can make exactly the same argument, it seems to me, in each case.

Ms Tucker: Well, the... the terminally ill patient does not have the expectation of a continued life beyond this very short interim before death.

Certainly the patient that you described that would choose to endure that period of suffering before death and find it ennobling and find it fulfilling should be permitted to make that choice, and many will make that choice, Justice Souter.

But for some patients, based on their values and beliefs formed over a lifetime, that additional quantum of suffering is intolerable to their personhood.

The notion--

Justice Souter: Your... your argument basically is an autonomy argument, then.

Ms Tucker: --Well, this... this I think will enable me to respond to the Solicitor General's comment that what we're dealing with here is simply a liberty interest in avoiding pain and suffering.

That absolutely trivializes the claim.

We have a constellation of interest, each of great Constitutional dimension.

Yes, there is the interest in avoiding pain and suffering.

And that, of course, was recognized as recently as in Casey as being an important feature.

Justice Kennedy: Well, it is... it is not only important, but it's essential--

Ms Tucker: It is--

Justice Kennedy: --to your... to your definition of the liberty interest.

And we don't understand how that squares, A, with the reasoning of the Ninth Circuit which ruled in your favor and, B, with this definition of autonomy which you are asserting.

Ms Tucker: --The... the second in the constellation of interest is decisional autonomy, and the third in the constellation that has bearing here is the interest in bodily integrity.

Each of those separate interests is of constitutional dimension and each has bearing here.

Going--

Justice Ginsburg: Ms. Tucker, may I ask you just to qualify one thing.

You said formed over a lifetime.

That's surely not part of your calculus, it could be someone who never thought a moment about this but is in terrible agony and would fit your terminal illness category.

And I thought that the question Justice Souter was asking you was isn't it possible that such a person could at one time, even for a period of days, say I want to die, I want to die, and didn't get the assistance, lives on, and says I'm glad that I didn't do that, just like mistakes are made about people who commit crimes, isn't there the possibility of a person saying, gee, I really thought I wanted it yesterday, but today I don't?

Ms Tucker: --I think that's possible, Justice Ginsburg.

I do think that it would be permissible for the state in an abundance of concern in that regard to impose a waiting period.

It would be appropriate to ensure that this decision is reflective and that it is enduring.

And that is a kind of regulation that certainly--

Justice Ginsburg: That's another thing too, you're talking about all these regulations, very tight regulations for most liberty interests, we think of them as being free, not... and then, if you're asking a court to declare the interests, who is then to make all these regulations?

The waiting period and what else?

Ms Tucker: --Justice Ginsburg, we are asking simply that this Court recognize the vital liberty interest at stake and that it is a protected choice but not asking this Court to engage in legislation, we are not asking this Court to promulgate a code for regulation of the practice.

We do think it should be left to the states.

Chief Justice Rehnquist: You're not asking that now.

But surely that's what the next couple of generations are going to have to deal with, what regulations are permissible and whatnot if we uphold your position here.

Ms Tucker: I think not, Chief Justice Rehnquist, for this reason, we do think it's appropriate for that experimentation to occur in the states.

There is substantial consensus as to what form of regulation would be appropriate.

And what I can direct you to in that regard is the amicus briefing by the state legislators--

Chief Justice Rehnquist: But you're going to find the same thing I suspect that perhaps has happened with the abortion cases, there are people who are just totally opposed and people who are totally in favor of them.

So you're going to have those factions fighting it out in every session of the legislature, how far can we go in regulating this.

And that will be a Constitutional decision in every case.

Ms Tucker: --Well, I think that what we see when we look at the quite extensive proposed models that are both in the medical and legal literature and have been presented to The Court and discussed in some of the amicus briefs is that there is substantial agreement from all factions that have joined--

Justice O'Connor: Well, I think that there is no doubt that it would result if we upheld your position, it would result in a flow of cases through The Court system for heaven knows how long.

I wanted to ask you whether it should enter the balance of state interests versus the interests of the patient here, that this is an issue that every one of us faces, young or old, male or female, whatever it might be.

And all of us who are citizens and authorized to vote can certainly participate through that process in the development of state laws in this area.

Does that cause the balance in any way to shift do you think?

We are not dealing perhaps with an unrepresented group, a group of children or a group of women who have no other means to protect themselves, some specific confined group.

This is something that affects all of us.

Ms Tucker: --I take your point, Justice O'Connor, but I do think that we are dealing with an issue, the literature is extensive on this, that ours is a culture of denial of death.

And that people in our society do not deal with their own mortality until confronted with their death and because of that I think we do have some concerns that the political process would not be expected to work in a usual fashion.

We also have the reality.

Justice Scalia: Presumably the majority disagrees with you about that?

I mean, if you're right about that scientific analysis, it's contrary to what the majority feels.

And why shouldn't we follow the majority?

Ms Tucker: We also have the problem, Your Honor, of the quite well-established and understood underground practice of physician aid in dying and that that is available primarily to the educated and the affluent who can access a physician to provide in that assistance.

Justice Souter: May I go back to the reference in your answer to Justice O'Connor to the political process not working.

It seems to me that in the prior cases in which we have spoken of the political process being imperfect, it has been imperfect for exactly the reasons suggested by her question.

And that is, there were certain groups who simply did not get a representative fair shake for whatever reason.

That's not what we've got here.

The premise of her question I thought was, in any case I'll make it the premise of mine, is that everybody is in the same boat.

And, if, in fact, you are right about the pervasiveness of the denial of death, that denial simply reflects the way we are.

And it seems to me that it's a perfectly legitimate reflection when it finds its way into the legislative process.

Is there a flaw in that reasoning?

Ms Tucker: Well, I think what I was getting at, Justice Souter, is that because there's the denial and people do not confront mortality until faced up against it, you do not have an activist component that is able to address that in the legislative process.

When a patient is on their death bed, they don't have the ability to become politically active.

And that is part of the problem--

Justice Stevens: I think your argument there is somewhat inconsistent with the filings in this case.

There are also sorts of active filings of amicus briefs that indicate there is very strong political support for the contrary view.

Justice Ginsburg: And, Ms. Tucker, isn't it true that maybe the individual hasn't thought about it, but most of us have parents or other loved ones and we've lived through a dying experience that forces us to think about these things.

And so the large question of... why isn't age considered the same kind of suspect classification as race.

Well, because we were all once young, we hope we will be old, it's universal.

Ms Tucker: --I think the final point that I will address to the court on why we should not simply leave this to the legislative process is perhaps the most important point, and that is that this Court has never left to the legislative process the protection of vital liberties, and the liberty at issue in this case is certainly of a vital and substantial nature.

Justice Kennedy: Well, but it's a matter of defining the liberty.

And this is a question of ethics and of morals and of allocation of resources and of our commitment to treat the elderly and the infirm.

And surely legislators have much more flexibility and a much greater capacity to absorb those kind of arguments and make those decisions than we do.

You're asking us in effect to declare unconstitutional the law of fifty states.

Ms Tucker: We're asking this Court to simply recognize the vital nature of this liberty and to leave to state experimentation the regulatory process and the state--

Justice Souter: Ms. Tucker, may I challenge your premise.

Your premise is all we are being asked to do is to recognize the vital nature of the liberty interest.

But the issue that comes before us in a substantive due process case like this is an issue of the sort that has described in the question compared to what.

And it's the... compared among other things, the... compared to what, which is very, very difficult for us to assess.

And it may be impossible for a court to assess that sensibly for a long time until there is more experience out in the world with what you claim ought to be the case than there is now.

Why isn't that a reason for saying we are not in a position either to weight the liberty interest, although we may recognize that there is one, or to weight the countervailing claim of the state.

And, therefore, for substantive due process purposes, as an institution, we are not in a position to make the judgment now that you want us to make.

It would just be guesswork.

Ms Tucker: --I think, Justice Souter, there is a tremendous amount of guidance on how to weight this liberty interest in this Court's precedence.

I think, if one looks to the Cruzan case, where the patient there had lost permanently all cognition and the question was whether her feeding tube could be withdrawn so that she might die as a result, The Court there found that to be a very significant liberty interest, because the idea.

Justice Kennedy: I disagree with that characterization.

I think The Court was very, very careful to assume a liberty interest.

Ms Tucker: Yes.

Yes.

Thank you, Justice Kennedy.

Justice Kennedy: That's a rather critical point, is it not?

Ms Tucker: Yes, it is correct.

Justice Kennedy: And you're talking about all of these precedents, so this first precedent you site Cruzan and that was just an assumption contrary to your description?

Ms Tucker: I went straight to Cruzan because it's most factually similar and I appreciate the correction that, of course, it was just an assumption by The Court.

And that assumption was that that individual had a liberty interest in being--

Justice Ginsburg: On the way to upholding the choice that the state made about how it wished to regulate this particular matter--

Ms Tucker: --Yes.

Justice Ginsburg: --and that's what makes this case worlds different from Cruzan.

The Court was explaining what the legislature had done and why it was reasonable.

Ms Tucker: In Cruzan that is correct, absolutely, Your Honor, however, the focus was very much on preserving to the individual the choice.

Justice Ginsburg: That was the focus of the legislature.

And this Court said, yes, the legislature did right, they recognized a liberty interest or whatever you want to call it, but they put conditions on it.

And we say that what the legislature did was all right.

I don't see how that is at all helpful when you are asking The Court not to approve what the legislature did and explain what the legislature did to the public, maybe better than the public might have known without The Court's decision.

Instead you are asking to overturn the laws of, now, all states but one.

Ms Tucker: The point that... of Cruzan that I wish to suggest has important bearing here is the point that in reviewing the state legislation that did impose that very high evidentiary standard, the point was that that was permissible to do so because it did then safeguard the personal element of the individual's choice that--

Chief Justice Rehnquist: I don't think Cruzan was primarily about choice in the sense you're... it was... the liberty interest it recognized was the right to be refused medical treatment, which was based on the common-law idea that... imposition of a medical treatment was a battery of common law.

Ms Tucker: --It also, Your Honor, was based on broader concepts than just being free of unwanted bodily invasion.

It includes within it the ability to make decisions, and the right decisions.

Chief Justice Rehnquist: Are you now drawing language... I don't think there was language like that in the Cruzan opinion.

Ms Tucker: I understand the Cruzan assumption of a liberty interest to be something in addition to a recognition that the common law had protected against bodily invasion.

Chief Justice Rehnquist: But your remark just now, that was not a quotation from anything in Cruzan.

Ms Tucker: Correct.

And I think that moving into this subject of withdrawal of treatment and what bearing it has here, I'd like to direct some comments there.

In Washington an individual can direct the withdrawal of treatment and have the medical assistance in doing so.

And Washington's legislature has described that as a fundamental right and to protect the dignity and autonomy of the patient.

And here, where a patient does not happen to be on a removable form of life support but has, of course, had extensive medical treatment, that has very much changed their way of dying.

Justice Scalia: Declining medical treatment is something quite different from suicide.

In saying you have a right not to have your body invaded, if you choose not to receive it, you're following a common-law tradition that goes all the way back.

You're opposing a common-law tradition when you say there is a right to kill yourself.

Why can't a society simply determine as a matter of public morality that it is wrong to kill yourself just as it is wrong to kill someone else.

What in the Constitution prevents that moral judgment from being made in this society's laws?

Ms Tucker: Because I think, Your Honor, that this decision is so profoundly personal, so intimate to the individual, so much based on their own values and beliefs and perhaps religious beliefs included among those that the for the state to--

Justice Scalia: Every religious decision which tells you to do all sorts of unlawful acts by reason of your religious conviction, those are intensely personal as well.

We don't change the law on that ground.

Ms Tucker: --This, however, Your Honor, has to do with one's own body, one's own medical care, and suffering in the face of death.

And that brings it within... if any decision falls within the private realm of decision-making, which this Court has indicated the government may not enter, it would be this decision.

Justice Stevens: May I ask you before you finish to tell us as best you can how you would define the liberty interest on which you rely?

Ms Tucker: That this is a liberty, Your Honor, that involves bodily integrity, decisional autonomy, and the right to be free of unwanted pain and suffering, and that that constellation of interests gives rise to a vital liberty, at least of the level of Cruzan.

Justice Ginsburg: But only for this narrow class.

Because if you describe those as a lot of people would fit the category, but you say there are these interests but we are going to draw the line at which we recognize these interests for this terminally ill group.

Ms Tucker: Yes.

Justice Ginsburg: So how do you get... leave out the rest of the world who would fit the same standards?

Ms Tucker: Yes, Your Honor, and again that gets back to the fact that these individuals that are in the process of dying are confronted only with the choice of how to die, they are not confronted with the choice of should I live or should I die.

Justice Souter: But that describes something, but I don't understand why that is a disposit... I don't understand what that justifies.

Ms Tucker: It is as if, Your Honor, the right that we claim here only ripens or matures when that patient is at that stage.

Justice Souter: By why?

That's what you're saying, but why?

Ms Tucker: I don't think that the interest is as weighty at that point, I think that the state's interests are greater perhaps at a prior point where that individual may go on to lead a fulfilling life and contribute to society.

This is not the case for someone who is right about to die.

And I would also like to say that the State of Washington has recognized that the State's interest should ordinarily give way when a patient is in that phase, because the state does permit the individual to make the choice to direct the withdrawal of treatment and thereby bring about death as a result.

Justice Ginsburg: At any time?

Ms Tucker: No.

Justice Ginsburg: Someone can withdraw treatment or refuse treatment at age 16 as well as at age 96, isn't that true?

Ms Tucker: Actually, Justice Ginsburg, in the State of Washington, both by statute and by case law, the right to direct the withdrawal of treatment is specifically limited to two situations.

And that is terminal illness or permanent unconsciousness.

And so we have the statutory and judicial--

Justice Ginsburg: Do you mean I can't refuse treatment in the State of Washington?

I don't want a blood transfusion.

I have to get it?

Ms Tucker: --I think that on those kinds of situations you may implicate different rights to refuse the treatment, First Amendment rights perhaps.

Justice Kennedy: No, but what is the law in the State of Washington?

I have a toothache, I have to go get it fixed?

Ms Tucker: I don't think so much that you are compelled to pursue medical treatment.

But I think that if you are--

Justice Kennedy: But you're telling us what the law of the State of Washington is.

And I thought you told Justice Ginsburg and us that in Washington there is no right to refuse medical treatment except under some very narrow conditions.

This may be true with comatose people or people in temporary shock.

But I assume that Justice Ginsburg meant... and we're interested here, our whole discussion... is about those who are competent and have a voluntary choice.

Ms Tucker: --I was pointing out that in the State of Washington the right to direct the withdrawal of treatment is limited, tightly, to those who are terminally ill.

Justice Stevens: You mean as a result of death, you mean withdrawal that will result in death?

Ms Tucker: Yes.

The withdrawal of life-sustaining treatment is limited to terminally ill patients and those that are permanently unconscious.

And because the state has recognized--

Chief Justice Rehnquist: You mean someone who is permanently... aren't you talking about substituted judgment?

Someone who is permanently unconscious obviously cannot direct the withdrawal of anything.

Ms Tucker: --Well, we do that in the State of Washington, as many states do, through the advanced directive, so that... this is the law that I'm referring to is that advanced directive law.

But for patients who are competent, presently competent, it is limited to patients who are terminally ill.

And it's the state's recognition that when the--

Justice O'Connor: Well, I think you would have a pretty good case if you had some kind of kidney disease and said, I'm not going to take dialysis: Or somebody offers surgery to remedy something that's going to be a serious life threatening problem and you say, thanks but no thanks.

Now somebody has that treatment forced on them, maybe they ought to bring a case.

Ms Tucker: --I think in that context, Your Honor, the doctrine of informed consent would arise and the question could the... would the patient consent to the treatment.

And if the patient refused to consent, I do think it's possible that if that patient was appearing to refuse for suicidal reasons, that the state has the power to intervene in what would seem to be a suicidal act.

And that's what I'm trying to suggest, is that it's not a completely unlimited and unfettered right to reject treatment.

A patient who has a temporary condition that can be resolved through a short period of life-sustaining treatment and then go on to a healthy life is not a patient in the State of Washington.

Justice Scalia: That's not an intensely personal decision?

I don't know how it becomes an intensely personal decision, you know, within a short time of death and it's not an intensely personal decision elsewhere.

Ms Tucker: I don't think that it becomes less intensely personal, but I do think, as I have indicated in earlier responses, that it's a different choice for that patient.

It is the choice of how to die when confronted by death that distinguishes it and does, in fact, place it in a separate category.

Justice Scalia: I don't see... I don't see how you can separate out the two situations and say the state is entitled to impose its will despite the preferences of the individual at one stage and with respect to some pain and suffering, namely physical, but is not entitled to do it then, but is entitled to do it in other situations, when the person has emotional trauma or when the person is further away from death.

It seems to me in both cases it is an intensely personal decision and if you want to leave it to the individual, your argument should be much broader than what it is.

Rebuttal of William L. Williams

Chief Justice Rehnquist: You may consider that a question, if you wish, and answer.

[Laughter]

Yes or no?

[Laughter]

Chief Justice Rehnquist: Thank you, Ms. Tucker.

Mr. Williams, you have five minutes remaining--

Mr. Williams: Thank you, Mr. Chief Justice.

There's no question that death and dying are difficult issues around which to formulate public policy.

And there's also no question that the line that currently exists, although bright and understandable by all, may be exceedingly fine in its application.

Justice Stevens: The legal line is bright and understandable.

Is the real practice as clear a line as you define?

Mr. Williams: Your Honor, we have to go only by the data that we have.

And there is only one study in Washington state, and for that matter it's the only study I know of nationally, in which doctors were asked whether they had been requested to provide assistance in suicide to terminally ill patients and, if so, to what extent they had complied with those requests and whether they had then been carried out.

And in that study there were about 200 requests, 30--

Justice Stevens: I'm not thinking so much of studies of data that's not in the public domain generally, but the one historical thing that I can't get totally out of mind is I'm not aware of any doctor ever being convicted of committing this particular offense; is that correct?

Mr. Williams: --I'm not aware of any either.

Justice Stevens: And it's hard to believe it has never been committed.

Mr. Williams: I don't disagree with that, Justice Stevens.

But I would remind The Court that there are other regulations as well, the licensing regulations, the heavy regulation of these very dangerous drugs, the regulation of the health care facilities, there are other constraints.

And I guess the other thing I would observe--

Justice Scalia: Are you aware of anybody ever having been prosecuted for attempted suicide, which is unlawful in some states?

I mean, assuming suicide, you know, early in life, not later.

I know it's unlawful, I don't know anybody who has ever been prosecuted for it.

Mr. Williams: --Most of the... I believe all of the statutes making that a crime have been repealed because of the recognition or the heavy influence that mental disease, most likely depression, plays in the request for suicide.

And that... by the way, there are studies showing that that's true with respect to people suffering a serious illness as well.

So it's the... the suggestion that somehow the terminally ill and dying are different in that regard is again not substantiated by the studies.

But the other observation I was going to make is that if one assumes that there is some covert practice in the current law with the line as clear as it is, if the line becomes unstable or gets muddied and the very private nature of the physician-assisted suicide transaction, if you will, between the physical and the patient, one must conclude that the abuses, if they exist at all, will be much worse.

At least the potential for abuse will be much worse in that setting as well.

Justice Kennedy: Does the literature tell us that there have been significant advances in palliative care to reduce pain for the terminally ill over the last five years, or the last ten years?

Mr. Williams: Absolutely, Justice Kennedy.

If you read the brief of the American Medical Association and the American Nurses Association and the other health care groups who filed a consolidated brief, that that information is in there, as well as the American Geriatric Society brief.

And one of policy arguments against allowing physician-assisted suicide is that it might be... become the alternative to improvements in palliative care.

Whether that's not... known or not, who knows, but that's one of considerations that anyone making this policy decision should take into account.

Justice Souter, I have had an opportunity to think a little bit more about your question about what... experience.

And I would point out that, in the Netherlands, one of the problems is that, because it's now permitted, it's become institutionalized.

And there is... although there is some disagreement about how the data is interpreted, that it appears to be pretty clear that a significant number of the deaths occur involuntarily without any consultation with the patient.

The physicians over time believe they know what the patients will want and go ahead at what they think is the appropriate time and administer that.

And I would also point out that the Supreme Court of Canada has rejected the notion that there is a Constitutional right under their Article of Freedoms, which is very similar to our Due Process Clause.

And that the British Government, with the assistance of the British Medical Society, considered this, they rejected the notion on policy grounds.

And of course, the New York State Task Force, which is the most comprehensive report on this subject.

So while we can't foretell the future for sure, that's one of the things that a legislature should take into account and we're asking the Court to give the legislature that opportunity.

Justice Ginsburg: Do you know of the... any of the international human rights documents or regional human rights documents, there is recognition of what has been called the right to die or, as described today, for the terminally ill?

Mr. Williams: I'm sorry, Justice Ginsburg.

I don't know of any such thing, but I don't want to represent that I have a comprehensive knowledge on that.

The other point I would make is in the withdrawal and refusal of treatment, the advocates for the handicapped would suggest that that's become institutionalized, and that... there was an article in The Post on Sunday suggesting that handicapped persons who are admitted to hospitals are routinely... not routinely, but upon occasion at least, sort of coerced--

Chief Justice Rehnquist: Mr. Williams, your time has expired.

The case is submitted.

Attribution:

The Oyez Project

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Vacco v. Quill - Oral Argument

Fri, 09 Jan 2009 14:50:06 +0000

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Vacco v. Quill

Media File:

95-1858_19970108-argument.mp3

Related Transcript:

1996_95_1858_argument.xml

Transcript:

Argument of Dennis C. Vacco

Chief Justice Rehnquist: We'll hear next in No. 95-1858, Dennis C. Vacco, Attorney General of New York, versus Timothy E. Quill.

Mr. Vacco: Mr. Chief Justice and may it please The Court.

The question in this case is whether the state must remain neutral in the face of a decision of one of its citizens to help another kill herself.

The Second Circuit below said yes, as a matter of equal protection.

It is New York's view, however, that the Constitution does not require this to be the case.

Indeed, equal protection is not implicated at all in this case.

Patients who withdraw from life support are not similarly situated to terminally ill people who are seeking physician-assisted suicide.

Chief Justice Rehnquist: Well, perhaps a more accurate way of putting your point of view, if I understand, would be that the Equal Protection Clause is not offended by treating those two differently, not that it's not implicated?

Mr. Vacco: The Equal Protection Clause is indeed not offended, Mr. Chief Justice.

In any event we also believe that these, these two acts are similarly not situated and there are six primary reasons why we believe so.

Justice Ginsburg: Mr. Vacco, instead of going down the list of six, if we could focus on what was of concern to the Second Circuit so we're not talking about a right to withdraw treatment from age 16 to age 96.

The distinction that the Second Circuit fastened on was the terminally ill person who says no more life supports, I want to die, and the person who wants a pill that will achieve the same end.

So let's narrow it to what that court was dealing with and tell us why that court was wrong.

Mr. Vacco: Justice Ginsburg, simply put, the people that you describe, or that the Second Circuit described, are not similarly situated.

In the first context the individual who is at the, in terminal illness, at the end stages of their life as the Second Circuit defined it, are exercising their right, which in New York state is recognized by not only the common law, but by our New York State Constitution, their right to refuse treatment.

That right which has been recognized for centuries as springing from the common law, the right of being free from bodily interference, the right to be free from battery.

In the context of saying that they are refusing treatment, individuals, terminally ill or otherwise, are merely asserting that right to be let alone.

On the contrary, and in contrast, are those individuals who are not asserting a right, that is, a bodily defensive right, their rights to bodily integrity, but instead attempting to assert, as the Plaintiff Respondents in this case are claiming, that there is some right to have a third party, in this instance physicians, help kill themselves.

And we believe that these two acts are clearly distinguishable.

Justice Ginsburg: But, if we had just those two neat categories, this might be an easier case; that is, of pulling the plug, that's the patient's choice, anything affirmative.

But we're told in this wealth of briefs that there are things in between that go on, like sedation for pain that can be controlled.

And that is not rationally distinguished from the pill that the physician... increasing, say, the morphine is not rationally distinguishable from giving a person a pill.

Mr. Vacco: Justice Ginsburg, in all due respect, I disagree.

The notion of sedation, and by the way, we happen to believe that the Respondents have misstated it factually and legally in their brief, but the notion of sedation as recognized by the vast majority of the medical professionals, is a notion of sedation in the imminently dying.

When individuals are actually in the last hours of death, sedation is for the purpose of treating four distinct symptoms, nausea, shortness of breath, delirium, and excruciating pain.

And only when these symptoms are intractable--

Chief Justice Rehnquist: --Is that really a correct use of the word sedation?

It seems to me you're talking about analgesics, painkillers, whereas sedation is just to kind of make you feel better, not mind things so much, isn't it.

Mr. Vacco: Mr. Chief Justice, as the medical professionals have written in their briefs and even the articles that are alluded to in the various briefs will indicate, the medication that is provided in these limited circumstances is provided only for the very limited effort to control those four symptoms that I articulated.

Chief Justice Rehnquist: Yes, my only question is whether it's properly called sedation or not, or perhaps something else.

Mr. Vacco: I am taking that terminology and that phraseology from the medical professionals.

The correct phrase in a medical context is sedation in the imminently dying, not terminal sedation as referred to in the Respondents' brief.

Justice Ginsburg: General Vacco, may I ask you, then, to train your attention on what has been described as the worst case, it's been called the barbiturate coma or whatever, that is not in the last hour or hours, what you've just been addressing, but you render a person unconscious, you withdraw nutrition, and water, and it goes on for days and days and the person finally shrivels up and dies, and that that, we're told, is permissible and goes on in hospitals in New York?

Mr. Vacco: Justice Ginsburg, again I believe that the description of this by the Plaintiff Respondents is simply incorrect.

What really transpires... again the medication which is designed to deal with four specific symptoms is only administered to the extent that it will deal with those symptoms.

And the suggestion that the death is brought upon by virtue of a coma coupled with the termination of nutrition and hydration is simply wrong.

Most medical professionals will agree that the death from the underlying illness or, if the drugs are going to suppress respiration so critically, that death will come from those two reasons long before it comes from starvation as a result of the withdrawal of nutrition and hydration.

Justice Ginsburg: But the question I'm asking you is, you say you've distinguished the drugs at the last hour or hours of life.

But we're told that this treatment, whatever you want to call it, that inevitably will lead to death, will do so in a matter of days, not hours.

And that that goes on.

And how is that rationally distinguishable from a pill that will work--

Mr. Vacco: Justice Ginsburg, it's rationally distinguishable because it is consistent medical practice.

It has never been... the concept of providing drugs specifically and solely for the purpose of killing someone has never been embraced by the medical profession.

Justice Souter: --But, when you say it's consistent medical practice, I take it you mean, but if I'm wrong, tell me, I take it you mean that, once you accept the right of a patient to withdraw all life support including hydration and feeding, then the only way to prevent excruciating pain as the person nears death is with these extraordinarily high dosages of painkiller that induce coma.

So that your justification for the painkiller and the coma is essentially your justification for preventing excruciating pain which is caused by a decision which the individual has a right to make.

Is that your argument?

Mr. Vacco: Yes, essentially, Justice Souter.

And the concept of--

Justice Souter: So it's not merely that the doctors have been doing this.

The argument is that it's justifiable essentially on the ground that the right to withdraw life support is recognized and the right to ameliorate pain is recognized.

Mr. Vacco: --Yes.

And indeed the subsequent administration of the palliative care drugs is consistent with the long-standing notion of the double effect, that the drugs in that instance are not being administered for the purpose of causing the death, they are administered in the context of the post refusal or post withdrawal of treatment palliative care of the patient.

And those... that is indeed distinguishable from the act of purposely and intentionally providing a drug to kill the patient.

And the State... besides the fact that the State believes that these two acts are indeed not similar, the State also believes that there are several legitimate interests that we have in regulating the process of physician-assisted suicide in New York State as we have, which is by virtue of an outright ban.

New York has chosen to draw its line in a rational and indeed in the same rational place that virtually every state in the nation has drawn that line.

This line that we have drawn in New York State is vigorously supported by professionals, particularly those--

Justice Ginsburg: But Mr. Vacco, you don't dispute that a legislature in New York or elsewhere could come to the rational judgment that a legislature in Australia or in Oregon or... I don't know how it came about in the Netherlands, but a rational decision could be made the other way, couldn't it?

Mr. Vacco: --Yes, Justice Ginsberg, indeed we do assert that the State of New York's legislature, if it so chose, could indeed make a judgment in the opposite direction.

What we are here today to say is that from New York's position, they should not be constitutionally compelled or constitutionally required to make those judgments or to change the line which is indeed a rational and principled line.

New York has made this judgment, and in some fashion that judgment has been based upon the widely quoted New York State Task Force on Life and the Law, which over a nine-year period conducted an exhaustive study on health care in New York State.

And, while this study recognizes that there is needs for advancement in treating pain and recognizing symptoms of depression that lead to suicidal ideation, this task force report, which has been embraced by the New York State Legislature, quite succinctly and specifically says we should not embrace the concept of physician-assisted suicide because of the fear that it leads to euthanasia.

And most of this report deals with the risks of physician-assisted suicide.

Justice Stevens: May I ask you, General Vacco, kind of a basic question?

Many of the arguments are that there are the same risks involved in pulling the plug and physician-assisted suicide, both in terms of making sure what the patient wants and making sure there are no abuses.

In your view, could the New York legislature have decided in the cases of terminating life support equipment, to totally forbid it for the same reasons that they totally forbid the assisted suicide?

Mr. Vacco: Justice Stevens, I believe that, if the New York State legislature or for that matter the New York State Court of Appeals had decided differently on the issue of refusal of treatment than they have already, that we would be back here in another context discussing the right of an individual to have the ability to refuse treatment.

Justice Stevens: I'm curious to know what your answer is to the question.

Mr. Vacco: I don't believe that the legislature of the State of New York could constitutionally prohibit the ability of a patient in the end stages of their life to refuse treatment.

Justice Scalia: Just a patient in the end stages of their life.

Can the state, if someone goes on a hunger strike and wants to die to protest something or other, can the state force-feed that person.

Mr. Vacco: Yes, Justice Scalia.

Justice Scalia: I see.

So you're drawing the same line that was drawn in the last argument, that there's something special about the last hours of death that creates a liberty interest, but before that there's no liberty interest.

Mr. Vacco: No, I'm not drawing the same line, Justice Scalia.

Justice Scalia: I don't know why you want to limit the discretion of the New York legislature that way.

Mr. Vacco: The... indeed the discretion of the New York State legislature would only be limited to the, to an individual's right to refuse... right to refuse treatment.

I don't believe that--

Justice Scalia: That's what I'm talking about, an individual who says I'm on a hunger strike, I do not want to be force-fed.

Mr. Vacco: --That's a different circumstance than an individual who is by virtue of medical treatment being force-fed, by virtue of some tubes that are implanted into his person.

That person, his bodily integrity has been violated, and that is distinguishable from the individual who is otherwise healthy and merely says that I am not going to eat for the purposes of killing myself.

Indeed, in New York State, we have said that it would be appropriate for the state to intervene and prevent that person from killing himself.

And indeed in--

Chief Justice Rehnquist: It seems odd that your bodily integrity is violated by sticking a needle in your arm but not by sticking a spoon in your mouth.

I mean, how would you force-feed these people in a way not to violate their bodily integrity?

Mr. Vacco: --Your Honor, Mr. Chief Justice, indeed this Court said in Cruzan that, in the context of an individual who is otherwise healthy, that the State need not stand by neutrally in the face of somebody who is attempting to commit suicide.

In New York State, where we have an individual... an individual, for instance, who is incarcerated in our correctional facility and goes on a hunger strike is otherwise healthy, competent, and goes on a hunger strike asserting his interest in suicide, the state indeed in our estimation has the ability to say we are not going to stand by quietly to allow you to kill yourself.

And that's not inconsistent with the tradition of the law in New York State and indeed the tradition of law in terms of suicide going back to the time of Blackstone.

Where we have said in New York State, while we haven't criminalized suicide, and we have long not criminalized attempted suicide, we still have put barriers, social and societal and legal barriers to signal our interest in people not performing suicide.

Justice Ginsburg: General Vacco, if you could be more precise about who is the we that you are talking about.

You have asserted that the State of New York could use its authority to force-feed a person who doesn't want to be fed.

Does that go for... well, first, is that a legislative decision, did the courts make that decision, did the police make the decision?

And what people are affected by it?

Mr. Vacco: The decision that I speak to in the context of the example that I posed is a decision of the New York State Court of Appeals, but it's not inconsistent, for instance, with legislation--

Justice Ginsburg: What was that decision and who did it affect?

Mr. Vacco: --That decision affected a prisoner in the state correctional facility who was indeed on a hunger strike, announced a hunger strike for the purposes of committing suicide and he wanted to starve himself.

Justice O'Connor: Well, how about a person with terminal kidney disease and says I'm not going on dialysis.

I know what the result will be, I'm not doing it.

New York can force that treatment; is that right?

That's your position?

Mr. Vacco: No, Justice O'Connor, New York cannot.

In the context of refusing treatment, whether it's terminally ill or otherwise, whether it's the 16-year-old who has been told to go home and take two aspirin or the 97-year-old who is plugged into various medical devices, we respect in New York state that person's right to refuse treatment.

Justice Scalia: We're not talking about what you do, I'm talking about what you may do.

Are you equating sensible results with what the Constitution requires?

I agree the line you've drawn is a very sensible one.

But you're coming here and saying that is the line that the Constitution imposes.

That, had you tried to do the other, you would be reversed because it is unconstitutional.

Isn't that what you're telling us?

Mr. Vacco: I am suggesting--

Justice Scalia: The Consititution is what is sensible and good; is that right?

And New York state may not err and do something that is foolish.

Mr. Vacco: --Justice Scalia, in the context of equal protection, the Constitution says that the state may do what is rational.

And we believe that the line that we have drawn here in this case is indeed rational.

And it's based upon some very serious and compelling state interests.

And among those interests is probably primarily the interest in avoiding abuse here.

We already know in the context of our--

Justice Souter: Is that the reason you draw the line ultimately between ending the life support and the affirmative act of giving the pill, is it essentially a line that depends on the argument for risk of abuse?

Mr. Vacco: --Justice Souter, in all due respect, I believe that the line was drawn much longer ago than the time that the notion of assisted suicide--

Justice Souter: I grant you that it was.

But we're being asked to justify that line today.

And my question is, is your principal justification for that line the risk of abuse argument?

Mr. Vacco: --The principal... yes, the principal justification indeed, one of the most compelling reasons, state interest, is the risk of abuse.

And that abuse is going to manifest itself in a variety--

Justice Souter: Well, why isn't there a risk of abuse that those who might stand to profit or at least themselves risk further discomfort by an early death for a person on life support will try to coerce or persuade that person to end life support when it really isn't a voluntary decision, why isn't that a risk?

Mr. Vacco: --Justice Souter, there is no question that in certain instances there is an overlapping of the risk of abuse.

But we believe in the context of physician-assisted suicide.

The risk of abuse is far greater.

Simply put, when you terminate--

Justice Souter: Is it far greater with respect to those who, in fact, are truly terminally ill?

Or is it far greater because it affects a broader class than the terminally ill?

Mr. Vacco: --It's for both reasons, in our estimation.

In the context of the terminally ill, now we move into the area of risk of error which leads to abuse.

Who is to define terminally ill, how do we define it with such certainty?

Justice Ginsburg: What about the risks on the other side, that even the American Medical Association recognizes; that is, this gray area in between makes doctors fearful of putting people out of pain because they don't know whether that's going to constitute physician-assisted suicide or accepted relief of pain?

Isn't that a real risk?

Mr. Vacco: It's a minimal risk, Justice Ginsburg, because we can indeed treat virtually all forms of pain.

The medical professionalism from the amicus briefs that have been filed point out the fact that pain is indeed manageable.

And as my colleague from the State of Washington indicated, unfortunately we just don't do a good enough job in America of treating the pain.

Justice O'Connor: What if what's given is some form of sedation and the person has asked to be relieved of life support systems and so the sure consequence of sedation will be an earlier death?

Mr. Vacco: Then, Justice O'Connor, if the purposes of that sedation is to bring about the death as opposed to treating the symptoms of the pain--

Justice O'Connor: It's to alleviate pain but with the certain knowledge that it will hasten the death?

Mr. Vacco: --In the context of treating the pain, even though there is a risk of death, pursuant to the principle of double effect, that is not criminal conduct in the State of New York.

Chief Justice Rehnquist: Thank you, General Vacco.

Mr. Vacco: Thank you.

Argument of Walter E. Dellinger, III

Chief Justice Rehnquist: General Dellinger, we'll hear from you.

Mr. Dellinger: Mr. Chief Justice, may it please The Court, the issue that is raised with more saliency in New York is that even if the state may, as a general matter, legitimately prohibit the granting of lethal medication, the fact that these state permit practices that are in the Respondents' view medically, ethically, and morally indistinguishable from lethal medication requires that these states also do that.

We do not agree that the states' interest in prohibiting lethal medication is lessened by the fact that the state permits competent terminally ill adults to refuse unwanted medical treatment.

There is an important common sense distinction between withdrawing artificial support so that a disease will progress to its inevitable end and providing chemicals to be used to kill someone.

Justice Kennedy: So I take it the example or the hypothetical, taken either way, that we're considering, is a person... consider that the asset, is a terminally ill person on a life support system.

And that person makes the choice to have the life support system withdrawn.

Let's assume that death will take 10 to 20 days and that there will be considerable pain.

The State of New York would prevent that person from receiving a lethal injection; is that not correct?

Mr. Dellinger: That is correct.

Justice Kennedy: And you support that distinction based on these other factors; namely, the long-standing tradition against permitting suicide?

Mr. Dellinger: Yes, Justice Kennedy.

First of all, the interest in refusing... the strength of the interest in refusing the state's forcible imposition of medical treatment is so historically great.

Justice O'Connor: Well, could we put this in the framework of the position, General Dellinger, that you have taken here, which is that there is some recognizable liberty interest, and how does that affect the analysis under an equal protection approach?

Does it mean that rational basis just won't suffice, we have something else that we have to apply here?

Mr. Dellinger: I think it does, even in an equal protection context, ask for something more than a merely plausible explanation.

I think here the states have--

Justice O'Connor: More than a rational basis, I think that's the term.

Mr. Dellinger: --More than a rational basis, yes, and by that I meant... yes, more than a rational basis, and by that I meant that sometimes the rational basis test seems to be a little tougher than others.

I meant merely to exclude--

Justice O'Connor: So what test is it that you say this Court should apply in the equal protection context?

Mr. Dellinger: --In the equal protection context, I think at most this Court should apply something on the order of an intermediate scrutiny.

But it is not at all clear to me that the state... that would assume, Justice O'Connor, I wanted to answer your question, but that assumes that the state has even drawn a classification here.

When, in fact, what the state has done is to allow to every citizen of New York a number of steps that the state and the medical profession have taken to alleviate pain and suffering in the end.

Justice Kennedy: Well, what about the hypothetical that I put, patient A is going to have 10 to 20-day lingering, painful death; patient B in exactly the same position wants to unhook the life system and have the lethal dose?

In light of your position that there is a liberty interest in obtaining medication to prevent pain, how is this distinction between these two people compatible with a heightened scrutiny?

Mr. Dellinger: Justice Kennedy, the historic distinction between killing someone and letting them die is so powerful that we believe that it fully suffices here.

Justice Kennedy: I could agree with that.

But I don't think you need heightened scrutiny for that.

Mr. Dellinger: I agree.

Chief Justice Rehnquist: But doesn't the strong historical distinction which you mentioned, aren't you suggesting that if you did need heightened scrutiny, that would help the thing pass it?

Mr. Dellinger: Yes... yes, of course.

Justice Souter: Do you agree with your cocounsel in this case that, in fact, it also reflects a difference in risk assessment?

Mr. Dellinger: That is true.

I think that, and the briefs of the medical professions will indicate that a legislature could reasonably conclude that the risk of those who would seek lethal medication, being depressed or undertreated from pain, are not as competent--

They're greater than they are with respect to someone who is declining unwanted medical treatment--

--Yes, Justice Breyer.

Justice Breyer: --So then what happens under your analysis?

I take it your analysis is you find some kind of basic right or liberty interest in the avoidance of the most serious pain and suffering and, moreover, we've been submitted... we've had submitted what I think of as a gigantic Brandeis'ed brief, which presents all kinds of empirically-based judgment by those who know, though they don't always agree, about what the conditions are in which you find justification, few people seriously need undergo terrible pain.

And the risks of killing people who shouldn't be killed are great.

On that analysis, what happens if three years passes and it turns out that, instead of more people actually getting the hospice treatment, instead of people being able to go to hospices and have opiates to relieve pain, what happens is instead of 25 percent not getting that treatment, 50 percent don't get it?

Suppose for doctors being afraid or people changing their mind about the double effect or any of those conditions change so that people really don't get the pain-relieving medication that is possible, then what happens to the law under your theory?

Mr. Dellinger: Justice Breyer, I believe that that would strengthen a state's concern about introducing lethal medication into such a medical system, that is, that they... if the need of the medical system is to further the process that the medical associations contend is ongoing of enhancing palliative care, enhancing--

Justice Breyer: Suppose they don't, suppose they just don't do it, you have 25 percent now, suppose that number keeps going up, then suppose New York changes its law about the double effect?

Mr. Dellinger: --The state in our view is entitled to think that introducing lethal medication into a system is... puts an even greater risk on those who are... particularly those who are poor and those who are handicapped, an even greater risk if that system is decreasing the amount of palliatives.

If a person supposedly is making a voluntary choice to choose lethal medication but they're in a system, in an institution in which their pain is not being controlled, and perhaps the insurance adjuster is saying we're not... this is expensive, this team of professionals is too expensive, but you do have an alternative to your suffering.

Remember, that to some uncertain extent, if you recognize a Constitutionally based right to have lethal medication in the system, I do not know to what extent physicians would be required to present it as a treatment option, I mean that is the general requirement.

We don't know that, we don't know to what extent insurance companies as they have indicated in Oregon would quickly say of course we will pay for this treatment while they are not paying for a hospitalization for palliative treatment.

Justice Ginsburg: General Dillinger, if you could deal with the argument that's been made about winks and nods, that all of this is really a great sham because physician-assisted suicide goes on for anybody who is sophisticated enough to want it.

Mr. Dellinger: Judge Ginsburg, I simply... we looked and we don't know what the evidentiary basis is for that.

That is, that the counsel for the Respondents in New York says that in New York there is this process called terminal... the state permits terminal sedation.

We found nothing in New York's statutory law, nothing in the regulations.

Your question goes also to the practice.

I think there may be some confusion.

We agree that state law may, without crossing this important line, not only allow withdrawal of medical treatment but also allow physicians to prescribe medication in sufficient doses to relieve pain even when the necessary dose will hasten death, so long as the physician's intent is to relieve pain and not cause death.

We do not know any basis for the conclusion that pain medication's being deliberately offered in excess of what is necessary to relieve pain in order to cause death.

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Thank you, General Dellinger.

Mr. Tribe, we'll hear from you.

Mr. Tribe: Mr. Chief Justice, and may it please The Court.

Perhaps I would begin with Justice Ginsburg's question to the Solicitor General about winks and nods.

I don't think the issue really is whether there are some people who violate existing laws like the law in New York which, as I hope to explain in a minute, really makes it legal to do what is described in a rather powerful article in the bioethics brief in support of Respondents as slow euthanasia.

I don't think so much the issue is how many people violate the law.

Charlatans, doctors of death, just by the nature of it they operate in the dark and we don't know.

The winks and nods I think affect the capacity of the system to respond humanely and rationally to what is actually going on rather than just to bright line hypotheticals.

The winks and nods really relate to things that we all accept, the principle of double effect.

Just as Justice Souter asked the question, take one of our patient plaintiffs, the Jane Doe.

She had a tumor that wrapped itself around her esophagus.

Result, she couldn't eat.

So she had the choice, she could have said no, don't give me a feeding tube.

She acceded to having a feeding tube implanted.

It had to be surgically implanted because it couldn't be done nasogastrically because Jane Doe really didn't have an esophagus left.

As she neared death, and indeed only nine days passed between the filing of her declaration and her demise, as she neared death, she was, as are many patients in the modern world who die not rapidly of an infection but at the end of a long, degenerative process, she was the recipient of all sorts of medical interventions that she could have said no to.

Some of them really weren't life-saving; they just prevented even greater torment, agony, disintegration, and then she did have a choice, she could have chosen on the theory I suppose that, even though her rabbi said you can't step in the same river twice, she could have turned back the clock, she could have said no to tube, she could now say take out the tube, I don't want it here anymore.

And as the law of New York is now structured, because she is terminally ill, there is no inquiry into her intent.

Even if it were undisputed that the only reason she wanted the tube out was that that would enable her to die a little bit sooner, that would be irrelevant.

It's not irrelevant when you force-feed someone, however, that is in the context of Mark Chapman, the guy who was force-fed in the New York case, the murderer of Beatle John Lennon, it was decisive, that the reason he didn't want food was not that he just didn't like it, he was anorexic or something, it was that that was his way of trying to kill himself.

And so his bodily integrity had to give way.

That is, he could be force-fed under New York law.

But, being terminally ill, Jane Doe couldn't be force-fed.

And I don't think much should turn on the label of whether you call a tube a treatment or, as the Chief Justice asked, what in the world difference does it make if it's a tube or a spoon, it's an invasion of your bodily integrity which is where this principle supposedly comes from.

So to begin with, we have this question: Jane Doe has the right to have the tube removed because she's dying anyway.

Mark Chapman didn't have a right not to be force-fed.

Chief Justice Rehnquist: That wasn't the basis of the Second Circuit's ruling, was it, that Mark Chapman could be force-fed?

Mr. Tribe: Well, the Second Circuit, Mr. Chief Justice, did base its ruling on the equal protection principle that Mark Chapman, I think helps me illustrate.

They didn't talk about John Lennon or Mark Chapman.

Chief Justice Rehnquist: They didn't talk about that particular provision, they said you can't distinguish between... as I understand their opinion, you can't distinguish between a removal at the patient's instance of life support mechanisms and asking for a lethal dose?

Because I didn't think it had anything to do with Mark Chapman.

Mr. Tribe: Well, Mr. Chief Justice, it's true it had nothing to do with that particular fellow.

But it was the arbitrariness of the following scheme in New York law, which I think you can give you a quick picture of, the scheme that the Second Circuit thought was irrational.

The scheme was that, despite your interest in bodily integrity, if you're not terminally ill, the state allows an invasion of the body in those cases where you're trying to kill yourself.

So that if the woman in the Fosmire case, which was referred to in the briefs, I think it's page 11 or 12 of our brief, if the woman in the Fosmire case, instead of saying no to blood transfusions after a cesarean section for religious reasons had slashed her wrists and said, I don't want blood transfusions, bodily integrity, no question under New York law, as The Court made clear in footnote 2, that could be overridden.

But what now happens when someone is terminally ill and dying, even if it is undisputed that the reason the person says, no blood transfusions, take out the tube, is to commit suicide.

At that point the state says, we don't care about your reason, the technology is what makes the difference.

Justice Scalia: So you disagree, Mr. Tribe, if I understand it, with counsel for Respondent in the prior case, who asserted that it was not only rational but that there is a Constitutional line between suicide of those who are at the threshold of death and the suicide of the young and healthy but despondent.

Mr. Tribe: No, Justice Scalia, I did not say--

Justice Scalia: That's what I thought you were saying--

Mr. Tribe: --Well, can I--

Justice Scalia: --that it's irrational, but it can make an exception between--

Mr. Tribe: --No, Justice Scalia, it's not irrational--

Justice Scalia: --Tell me why.

You're not--

Mr. Tribe: --Because for purposes of defining a particular liberty, recognizing a greater freedom to decide this amount of agony is enough, it may make a difference whether someone is dying or healthy and just temporarily disabled.

But for purposes of drawing a distinction among technologies, saying we don't care when you're young and healthy whether the way you're trying kill yourself is by saying unplug that respirator or give me a lethal medication.

And, however, drawing that very line for the terminally ill, for the terminally ill they say we do care.

That is, Jane Doe didn't want the surgical removal of the tube because that would have left her in starving and dehydration... not just discomfort but according to Dr. Grossman agony for a couple of weeks and she didn't want to be turned into a zombie, she wouldn't have accepted terminal sedation.

But she had the right, that is, whether she could end her life because she was in that small group that the Solicitor General describes as having really no choice between agony and unconsciousness, even with the best palliative care, whether she could do that, terms under New York law, when she's in this terminal phase, not on her intent but just on the particular technique involved.

Now if the New York legislature--

Justice Scalia: --Excuse me.

Is it a technique or is it the distinction between action and inaction?

The state allows someone to not provide medical assistance but forbids someone from injecting something that will cause death?

Surely you don't assert that the distinction between action and inaction is irrational?

Mr. Tribe: --No.

I suggest, Justice Scalia, that even though the action/inaction distinction that you criticized in Cruzan isn't quite irrational, the distinction between these two different kinds of action, the action that is requested of someone, operate on me to take out the tube, and the action, please give me a lethal prescription, that operates irrationally.

Justice Scalia: I see, you just object to the taking out of the tube.

If the issue were simply I don't want a tube put in in the first place--

Mr. Tribe: --in the first place.

Justice Scalia: --you would have no problem with that?

Mr. Tribe: I think there I--

Justice Scalia: --you would have no problem with that?

Mr. Tribe: --I think that's right.

I would be an action/inaction advocate, although I do think, if it were demonstrable, as I think it's true in New York, that someone who, for example, slashed her wrists and said, no action has been taken yet, don't put the IV in me, if New York says to her, sorry, we're going do it anyway and overrides her bodily integrity in order to prevent what it calls suicide, but then tells someone else who is in the process of dying and is 10 or 11 days from death, for you we are not going to worry about the intent that you have--

Justice Ginsburg: But, Mr. Tribe, the whole solution now you've given us, I think, in your answer to Justice Scalia, New York could say and be perfectly compatible with equal protection, as you've just described it, person who is terminally ill, you've got to make the choice now before we give you the life support, you have a right to refuse it, but once you've accepted it, you have no right to have it taken out.

So understand that, and New York does that, then these... this equal protection problem disappears; is that right?

Mr. Tribe: --No, I don't think so, Justice Ginsburg.

A liberty problem of a different sort might become even more severe.

But the point is... and again, I'm sorry to go back to a certain kind of reality... you don't suddenly become terminally ill at midnight on a given day.

Justice Ginsburg: That's one of the problems, isn't it?

One of the problems of defining--

Mr. Tribe: If I can get to it, I'll try to discuss how one might deal with that, but if I might just stick with equal protection for a moment.

What happens to people as they degenerate is that they are given all kinds of treatments and they accept them, and this idea that at the end you're either in this closed class of people who luckily have a plug that can be pulled, or you're in some other group, is a fantasy.

Every case, or virtually every case--

Justice Kennedy: --Well, I suppose it's based on the distinction between allowing events to take their own course and third-person intervention, which the law has recognized in the law of torts and in most of its other substantive areas for centuries.

Mr. Tribe: --Justice Kennedy, none of these patients is in a state of nature.

They're in a hospital or a hospice.

And they're receiving chemotherapy, radiation, bone marrow transplants--

Justice Kennedy: Yes.

But when a person on a life support system wants the systems discontinued, she is not committing suicide, which is what you said earlier.

She is not doing that, she's allowing nature to take its course.

Mr. Tribe: --If I could explore nature just for a moment.

Of course, it's up to the State of New York how to characterize whether she's committing suicide.

But as you've said in your Colorado opinion, the government's characterization can't control the constitutional analysis.

New York says that if a person... suppose there's a car accident, and my wife and I... no, I won't be personal.

Suppose it's a car accident and two people are in the car.

One of them is so badly injured that the person is bound to die within a few weeks.

The other person is not quite that badly injured at all but needs a respirator for a while.

And is in a coma.

The respirator is put on, so we don't have Justice Ginsburg's problems of... well, you've signed up, now you're stuck... the person is in a coma, the respirator is put on, wakes up and is delighted to learn that he's going to be fine in a couple of weeks, unless the respirator is taken off, in which case he will asphyxiate.

So he has no objection to the respirator.

He learns that his spouse, his wife, is dying and she's not going to make it no matter what.

She as it happens is not on a respirator, she's on all kinds of stuff but none of them have a detachable plug.

New York says to him when... he says, well, now that I know what's happened to my wife, I want to die, take the respirator out.

I think under footnote 2 of Fosmire, he wouldn't be entitled to that, he would be using--

Chief Justice Rehnquist: Well, Mr. Tribe, if we go into this sort of intricate analysis of state law in order... in accepting... we won't be deciding any case except New York's here.

We would have to make the same analysis for 49 other states.

If we do the sort of intricate analysis that you talk about, where we talk about someone being force-fed in a prison--

Mr. Tribe: --Well, The Court did say that in that case that the prison context did not determine the outcome.

And I do suggest that, given the complexity and difficulty of the area, the desire to have an easy answer for the whole country mightn't work, that's not what I would propose.

Justice Breyer: --How then do you react?

I would be very interested in getting your reaction.

Because however you define the liberty interest, there are tremendously difficult procedural questions of what would be the safeguards of voluntariness, a much more difficult question on... when you go into it than what you might think.

And how do you decide terminal condition.

And what about the relationship of laws like double effect and all of that area.

Why... what's your response to the proposition that these different groups, interacting with the legislature, are far more suited, that legislature, to come up with an answer than a court writing a Constitutional provision.

Mr. Tribe: Well, Justice Breyer, my answer is in part equal protection and in part Judge Calabrese.

Because it seems to me that what we have here, setting aside the issue of liberty for the moment, and I don't understand frankly the Solicitor General's position it can be a

"now you see it, now you don't. "

liberty.

It's liberty, but--

Justice Breyer: I would be interested in your definition of the liberty interest as well.

Mr. Tribe: --I'll try.

But I think, if I could pursue your question for a moment as to, sort of, how does one deal with this.

I mean, in a sense there are 50 laboratories out there.

The famous state laboratories of Justice Brandeis, although I guess it wasn't in the Brandeis brief, but he talked about them.

These laboratories, however, are now operating largely with the lights out.

They're operating with the lights out because it's not just New York.

What I've described is as far as I've been able to determine through research of the law of at least 35 or maybe 40 states... and I know maybe I shouldn't admit that because that means that an equal protection ruling would require lots of states to reexamine where the lines should be drawn... but in all of these states what they do, and it's a logic that collapses on itself, is they combine two understandable principles.

One principle is you can medicate someone to make them comfortable, to reduce their pain even when you are pretty sure... or even when you know, as long as that's not your real intent, that it will hasten their death.

The other principle is that a person has the right to say, no, don't give me that feeding tube.

Once I've got it, it may be hard to take it out, and anyway, leave me alone.

You combine these two and the logic so remarkably collapses in the case of terminal sedation, which is overwhelmingly documented everywhere in the country, it's not some sneaky practice, although it's called slow euthanasia in this latest article, that what you wonder is where did this all this come from?

Did a--

Justice Scalia: What do you mean... do you mean nothing more by terminal sedation than the sedation of those who are terminal?

Mr. Tribe: --Oh, much more, yes, Justice Scalia.

It's described in the AMA's brief and the Geriatrics brief.

What I mean is, after having discovered that opioids are not going to work to get rid of the person's agony, physical and... physical pain and deterioration and dyspnea and other symptoms, after you learn that, then you have the option of using barbiturates or benzodiazepines to put the person into a comatose state.

And you can do that hopefully with their consent.

But sadly there are almost no safeguards on the existing legal practice to assure that consent is given.

You sedate them either before taking them off a respirator because we are told that asphyxiation is one of the most terrifying and excruciating deaths, or you keep them sedated as they starve and dehydrate and their families see them disintegrate.

Because that's all that's available to them.

It is the Kafkaesque but entirely logical result of the principles that the states haven't really adopted but have fallen into.

Justice Souter: Well, Mr. Tribe, you say they've fallen into it and you referred in answering Justice Breyer a moment ago to the state laboratories operating with the lights out.

Isn't it fair to say that the issue that we are dealing with is a really serious legislative issue, is fairly recent.

20 years ago we weren't even reading about this.

So that the fact may be and the metaphor may be right, that the lights have been out, but the effort to put the lights on is fairly recent.

And doesn't... doesn't that sort of put some punch behind Justice Breyer's question?

Mr. Tribe: Well, I thought it had a lot of punch to begin with.

But I guess the problem is, you know, most of us... these legislatures are operating in the dark and we hope that they will take into account everyone's interests as they work.

Justice Kennedy: But do they have less light than we do?

Mr. Tribe: No, not at all.

I think they have... the lights are bright here.

When I say the dark, I mean this: Doctors, like Dr. Quill, who, when he explained what he was doing in the case of someone who thought it would be dehumanizing to be terminally sedated, so he publicly explained in an article called Diane, that he was actually going to leave her with some lethal medications, he was investigated by the grand jury.

When doctors do a lot of what they do in upping the level of the morphine and actually using more benzodiazepine than is needed to make sure the person is comfortable but to make sure the person dies sooner, they're not going to talk to others about it because they might be prosecuted because of the lines that are drawn.

Justice Kennedy: But the New York report, and perhaps this will get you to the autonomy interest and it bridges what Justice Breyer and Justice Souter suggested, that we're just beginning to get a public awareness and to find out much more about these things.

The New York report, it seems to me, is a Brandeis brief for the proposition that the autonomy that you suggest, that you wish to protect, or that you wish to create, is illusory, it's chimerical, that there will be less autonomy, less autonomy, by the unanimous judgment of the members of that task force, if you allow the option that you choose.

In fact, you will be introducing fear into medical care facilities.

You will diminish, diminish the choices, not increase them.

That's what I get from the New York report.

And I would appreciate your comment on that.

Justice Kennedy, I think as I read the report, the premise of that proposition was that people would be fearful that doctors would be making decisions in the end that would terminate their lives.

What I'm saying is that the... if anyone reads that report as you have, as I have, and thinks about what happens in the hospital wards when terminal sedation is given, when the morphine drip is increased, when the person is asleep and it's said that they wanted the respirator disconnected but there are no required witnesses, that's pretty scary.

And what I suggest is that the New York legislature, which initially outlawed all physician-assisted suicide, not by identifying physicians, but by just saying if A helps B commit suicide, it's a crime, now confronts a rather different regime, a regime that says near the end of life, whether or not the intent of somebody is deliberately to die, if certain techniques are used, combination of morphine and barbiturates, a surgical removal of something implanted, we don't call that suicide and actually we don't regulate it very much.

But, on the other side, if the patient is prescribed, at the patient's request, a lethal drug, we make that absolutely forbidden.

That combination which has not been chosen by the legislature, when Mr. Vacco held up that report and said, this is the choice of people of New York and I wondered what his answer was to Justice Ginsburg's question, who is the we, New York in its legislature did nothing in response that to that report.

That is, they didn't change the law, but that was inaction.

The line, it's like Thompson v. Oklahoma.

When Oklahoma passed some laws that had the unfortunate consequence of exposing 15-year-olds to execution and, Justice O'Connor, you concluded that you didn't have to reach the ultimate merits of whether that was unconstitutional, because that was really a question that didn't have to be decided.

It was at least Constitutionally dubious as I suggest the rationality of this line is at least Constitutionally dubious.

That was a concurring both that in the end sent the thing back to Oklahoma and said if you really need to execute 15-year-olds, tell us that.

Justice Ginsburg: Mr. Tribe, that's a discrete situation.

This is the question I'd like to ask you: You have said, or at least many of your amici have said, protocols and criteria are the watchword, because you have to be very careful.

This is a dangerous authority that you would be giving to the medical profession.

Mr. Tribe: They already have it unfortunately.

Justice Ginsburg: But the moment this Court says, liberty interest is broad enough to cover the terminally ill, we don't define what that is, there is no law.

And by your very argument and very excellent brief, one can see a lawyer criticizing any line that the legislature would come up with.

Mr. Tribe: It seems to me, Justice O'Connor... oustice Ginsburg, that the methodology of equal protection... sorry... that the methodology of equal protection does mean that any line would be subject to meaningful scrutiny.

But I suggest to you that the defensability of a line of the kind we have here would never reach this Court because no legislature would actually draw a line that says you can sedate somebody to death as long as you meet the criteria of double effect, but you can't do much of what is now--

Justice Ginsburg: But that is what... how many legislatures have.

I mean, you're not singling out New York as being different from New Jersey or anyplace else in that regard, are you?

Mr. Tribe: --No.

But that's the residual of what's happening in these states--

Justice Breyer: Yeah, but they recommended that.

I mean, the report as I read it, the English report, recommends this as a line various... and one of the things that impressed me about looking at that is they said, in Holland, where they have the different line, there were three centers to deal with palliative care, pain removal.

And in England, where they have the New York law, there were 185.

Do you see the conclusion that they're drawing?

Mr. Tribe: --Well, but that's--

Justice Breyer: And suppose the legislature comes to us and says, hey, that's what we want and that's the reason we're more interested in people dying without suffering, we've looked at this information, we think this is the way to do it, just the way they recommended in the report.

What are we supposed to say to that?

Mr. Tribe: --Well, I think, if one were a legislator, one might look at that report and say, you know, there is no better line, we're going to stick with it.

And if, after a careful look, the legislature came up with a line that looks very much like the existing one, the issue that would face this Court, either as a matter of liberty or as a matter of equal protection, would be a bit different.

Chief Justice Rehnquist: Well, why on earth would it be any different unless you would buy Justice... Judge Calabrese's idea?

Mr. Tribe: Well, by the tone of your question, I guess I'm supposed to say I thought it was a crazy idea, but I didn't.

I didn't.

I think it's very much like... what does this Court do when it says something is a suspect classification, as in Croson?

It says if there were different findings and if the legislature or other governing body really went through the process with care of doing it it might pass muster.

Now, being Constitutionally dubious--

Chief Justice Rehnquist: That's traditional equal protection jurisprudence though, but this idea of can I send it back for a second look, do you really want to do this?

I think that's quite different.

Mr. Tribe: --Well, it looks different, I grant you, Mr. Chief Justice.

But the meaning really of... I think, of deciding that something is either Constitutionally too dubious to pass muster given the haphazard way in which it came about, or that it's suspect, is that the very same thing might be upheld otherwise.

In Egglehoff--

Justice Scalia: Sort of a legislative process requirement in the Constitution, legislative due process?

I thought we had specifically disclaimed the existence of any such thing.

I mean, the law is either good or bad.

You're telling us if the legislature goes about doing it one way, it's okay; if it goes about doing it another way, it's not okay.

Mr. Tribe: --I thought you joined Justice O'Connor's opinion in Croson.

Justice Scalia: I didn't mean to do that, that was a mistake.

[Laughter]

Mr. Tribe: I think that it does make... I think that, when one concludes... in an area as profoundly difficult as this, when one concludes that something is Constitutionally doubtful, and when it came about by kind of inadvertence, that is, various things being subtracted from an existing piece of legislation, it's a little bit like a law that looks suspect and that doesn't have behind it the kinds of findings by the government that could satisfy--

Unknown Speaker: Legislative due process, there have to be particular findings before we will sustain... do you know any case where we've held such a thing?

Mr. Tribe: --I submit that in Croson you held such a thing.

Chief Justice Rehnquist: I don't think we held such a thing in Croson.

Croson, we held the statute was invalid.

Mr. Tribe: Well, that's what I'm suggesting here.

That it should be in... that it's invalid... in Croson you said it was invalid because it was a suspect classification and the governing body responsible for it hadn't actually provided the kind of defense justification assurance, that they did it thoughtfully and not kind of out of some knee jerk--

Chief Justice Rehnquist: Well, it wasn't... the test wasn't thoughtfully, it had to meet certain criteria.

Mr. Tribe: --That's right.

And I think that it may be that in this area one could specify some criteria that would have to be met--

Justice Stevens: Mr. Tribe, before your time expires, would you tell us what you think the liberty interest is.

Mr. Tribe: --Well, I think the liberty interest in this case is the liberty, when facing imminent and inevitable death, not to be forced by the government to endure a degree of pain and suffering that one can relieve only by being completely unconscious.

Not to be forced into that choice, that the liberty is the freedom, at this threshold at the end of life, not to be a creature of the state but to have some voice in the question of how much pain one is really going through.

Justice Souter: Why does the voice just arrive when death is imminent?

Mr. Tribe: The Court's jurisprudence has identified, I think for good reason, that life, though it feels continuous to many of us, has certain critical thresholds: Birth, marriage, child-bearing.

I think death is one of those thresholds.

That is, it is the last chapter of one's life after all.

I don't think you have to say, I have a right to make any--

Justice Scalia: All of this is in the Constitution?

Mr. Tribe: --Well, the substantive due process.

Justice Scalia: You see, this is lovely philosophy.

But you want us to frame a Constitutional rule on the basis of that?

Life has various stages, birth, death--

Mr. Tribe: Well, Casey said as much.

And unless Casey... unless Casey is to be isolated--

Justice Breyer: --You're going back... you have several parts to it.

And the parts each have precedental effect, and you're putting the several parts together.

One of parts is pain and suffering.

What in the history, what in the history of the decisions shows something... a personal right against enduring pain and suffering, if you go back into the law.

Mr. Tribe: --That is prior to Casey, which did emphasize--

Justice Breyer: Yeah.

I mean, but... I'm not saying it would be in certain contexts only.

But what is there--

Mr. Tribe: --Well, actually, Justice Breyer, it seems to me that it is the confluence of several things.

I mean, the general interest in--

Chief Justice Rehnquist: You can answer the question.

Mr. Tribe: --Thanks.

I'll do it briefly.

The general interest in avoiding suffering is a bit too nebulous for me.

I think when it's combined with shaping your life and with the ultimate avoidance of being subjected to the state's control, then it's a special liberty.

Chief Justice Rehnquist: Thank you, Mr. Tribe.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Schenck v. Pro-Choice Network of Western New York - Oral Argument

Fri, 09 Jan 2009 14:50:08 +0000

Case:

Schenck v. Pro-Choice Network of Western New York

Media File:

95-1065_19961016-argument.mp3

Related Transcript:

1996_95_1065_argument.xml

Transcript:

Argument of Jay A. Sekulow

Chief Justice Rehnquist: We'll hear argument first this morning in Number 95-1065, Paul Schenck and Dwight Saunders v. Pro-Choice Network of Western New York.

Mr. Sekulow.

Mr. Sekulow: Mr. Chief Justice and may it please the Court:

Whatever one thinks of abortion, this Court in both Bray and Casey has recognized that there are common and respectable reasons for opposing it.

We are not here challenging the prohibitions of the injunction which prohibit blockades, trespass, or obstruction of access.

In the Western District of New York, the opposition to abortion with which we are concerned involves demonstrations such as picketing, leafleting, the holding of a sign, or a prayer vigil.

Under the one-size-fits-all injunction issued by the district court, the petitioners are prohibited from engaging in these form of demonstrations inside overlapping speech-free zones that float without geographic limitation.

The injunction also allows, to a very limited extent, a form of demonstration that--

Unknown Speaker: Mr. Sekulow--

Mr. Sekulow: --Yes, Justice--

Unknown Speaker: --I think we can hear you quite well if you were to lower your voice a little.

Mr. Sekulow: --Yes, Mr. Chief Justice.

The other provision of the injunction that we are challenging involves a sidewalk counseling allowance.

It allows sidewalk counseling.

However, that sidewalk counseling can be terminated based on facial gestures.

In other words, what we call and the lower courts recognized as a cease-and-desist provision.

This provision of the injunction is implemented on verbal or nonverbal indications.

In fact, the injunction itself prohibits and allows for... prohibits any person being approached.

It's not just limited to women seeking the services of an abortion facility.

On page 183 of the petition appendix--

Unknown Speaker: You'd be content if we modified that so only verbal indications would suffice?

Mr. Sekulow: --No, Justice Scalia, we would not.

That would be certainly a step in the right direction.

The ACLU in their brief has acknowledged that--

Unknown Speaker: And that's not really what you're after here, is it?

Mr. Sekulow: --That is not.

We think that the no consent, and that's what this is, without consent, the speech stops, and that could be before a word is even uttered, and we think that provision of the injunction, like the no approach zone in Madsen, because it is dependent upon consent of the people speaking and the people that are listening, therefore it is unconstitutional, because without a doubt it burdens more speech than necessary to serve any of these purposes.

Unknown Speaker: How does it stop?

I mean, we're 15 feet apart now.

Mr. Sekulow: Yes.

Unknown Speaker: Even without this microphone I think I can hear you perfectly well.

Mr. Sekulow: The Chief Justice certainly said that.

Unknown Speaker: Yes.

So what is the problem?

I mean--

[Laughter]

--here we are, we're having a conversation, and we're 15 feet apart--

Mr. Sekulow: We're in the--

Unknown Speaker: --and the judge's decree allows everybody to go 15 feet apart, doesn't it?

Mr. Sekulow: --Justice Breyer, I think that in reality we're talking about, of course, in Buffalo city sidewalks and city streets, with sidewalk escorts trying to get people into the clinic.

It's the hustle and bustle of any metropolitan area, and to carry on intimate conversation, one-on-one communication with a desire to dissuade, to tell someone we really don't you... want you to go into this particular abortion facility.

That is intimate conversation.

Sure, you could be 15 feet away, but in that 15 feet, if you were to ask me, as a demonstrator, if I was the demonstrator, you wanted some information, under this injunction consensual speech is also prohibited, and that's where I think, if we look at the burdening-no-more-speech-than-necessary standard, why is it that 15 feet serves as a standard, especially--

Unknown Speaker: Let me ask you--

Mr. Sekulow: --Yes, Justice Stevens.

Unknown Speaker: --Would 5 feet be okay?

Mr. Sekulow: I don't think so in the particular situation here.

If there is--

Unknown Speaker: Two feet?

Mr. Sekulow: --Two feet I think would approach what we would consider probably blocking, certainly crowding, and crowding is prohibited by section 1(c) of the injunction and we're not challenging that, but crowding in the sense that if I were blocking your access.

One of the examples that we use, and I think it was one of the contempt proceedings... it's found in the Joint Appendix on page... beginning... commencing on page 101, actually 102 going forward.

Bonnie Behn and Carla Rainero were engaged in sidewalk counseling.

They were held in contempt.

The court held them in contempt.

On page 107 of the Joint Appendix, in describing what exactly was taking place, and then going on to page 108, and I'll refer to page 108, Bonnie Behn and Carla Rainero walked alongside the young woman, her companions and the escorts, and continued talking to the young woman.

They were engaged in a conversation.

Now, ultimately, the woman in that particular case that was seeking the abortion said, please stop talking.

There's no finding of yelling, no finding of blockades, no finding of impeding access.

She just said, stop talking.

The two individuals, Carla Rainero and Bonnie Behn, continued to communicate, and for that the court held them, the district court held them in contempt, because the injunction itself prohibits that type of speech on a public sidewalk in New York absent evidence of yelling, absent evidence of blockades.

That information or that concern is handled by the injunction, as is the noise restrictions.

We're not challenging those.

Unknown Speaker: Yelling.

Yelling.

You would accept this injunction if it prevented you from raising your voice to anyone going into the clinic?

Mr. Sekulow: Oh, no, I don't think that is the prohibition that we're concerned with.

The noise provision, Justice Scalia, excessively loud noise to be heard inside--

Unknown Speaker: To be heard inside.

Mr. Sekulow: --Yes.

Unknown Speaker: But you wouldn't say that this injunction would be okay if it prevented the counselors from shouting at the--

Mr. Sekulow: No.

I think that's robust speech, and this Court has talked about the need to protect robust speech in public forums.

This is clearly a public forum.

The fact that these sidewalks abut an abortion clinic does not mean that they become enclaves immune from the First Amendment.

Unknown Speaker: --Well, are you challenging the fixed 15-foot limit?

Mr. Sekulow: We are challenging that as well.

Justice O'Connor, the way that these zones work in operation, you have, as you acknowledge, the 15-foot fixed zone, which actually is really 45 feet, because as an individual approaches the clinic their bubble zone, their floating zone goes with them.

Unknown Speaker: I'm not talking about the floating bubble, I'm talking about the fixed buffer zone provision.

Mr. Sekulow: The fixed buffer zone in and of itself, Justice O'Connor, we are challenging.

Two reasons.

Number 1, the Court here, before... when it issued the temporary restraining order had a speech-restrictive provision initially.

I think what this Court said in Madsen as it relates to the entire issue of was there a... before a broader injunction is issued, is there a least restrictive or less restrictive injunction that just didn't do the job, and I don't think that's the facts here.

The reality is that the injunction had a speech restriction at the outset.

Then the Court increased that speech restriction in the final... the preliminary injunction.

Unknown Speaker: Is it your position that there was no post-TRO conduct that justified the 15-foot limit?

Mr. Sekulow: That is our position, and I think the record in that sense shows it, because there would have been six contempts, or actually seven contempt actions brought in an almost 18-month period, three of them involving cease and desist... yes, Justice Ginsburg.

Unknown Speaker: As I recall, Judge Meskill in the panel ruling did find that there had been violations after the issuance of the TRO, and if you would look at A-57 he refers to an incident on March 26, 1991, in which two men blocked the doorway to the clinic, and then another one on January 1, so Judge Meskill, whose position I think you are not challenging--

Mr. Sekulow: That's correct.

Unknown Speaker: --did find post-TRO conduct that violated the Court's order.

Mr. Sekulow: Yes, Justice Ginsburg, that's correct, and we've acknowledged, and they're in the Joint Appendix, there are also contempt actions that have been filed.

Unknown Speaker: But you did say in your reply brief that the district judge found no defendants physically blocked access after the issuance of the TRO, and as I read Judge Meskill's opinion that's not so.

Mr. Sekulow: What it's talking about there in the particular page A-57, the way we understand the evidence was submitted at trial and the way we've seen the case was, this was not a mass blockade, and what we were talking about in our reply brief, Justice Ginsburg, is, this is not a case involving mass blockades.

There have been occasions where protesters have trespassed, and we believe--

Unknown Speaker: But I wanted to inquire, what is the principle that limits the Court to the conduct post-TRO and pre-preliminary injunction, given the long history of discord, to use the mildest term, what is it that confines the district judge in thoughtfully drawing a preliminary injunction after trying to preserve the peace with a TRO, from crafting it in a sensible way in light of all of the past history?

Why is he confined just to this post-TRO conduct?

Mr. Sekulow: --I think that the Court should only be looking at this particular injunction in light of the facts that the district court have.

Was the injunction that was issued, Justice Kennedy, then, the question that we would submit is, did it burden more speech than necessary, and the provisions that we're challenging... we're not saying that it was inappropriate to say, as the court did... it increased the... under provision 1(c) from the TRO to the preliminary injunction, it did increase things such as no touching, no physical contact.

We're not challenging that.

But there's nothing that justifies the speech-free zones that float without any geographic limitation, and speech can be silenced on command.

Justice Scalia.

Unknown Speaker: Was that 15-foot... not the floating zone, but the 15-foot absolute, that was in the TRO originally.

That wasn't added.

Mr. Sekulow: Actually, the--

Unknown Speaker: Wasn't that in the original TRO as well?

Mr. Sekulow: --Justice Scalia, actually it was the floating zone was in the TRO.

Unknown Speaker: Ah.

Mr. Sekulow: And the fixed zone came afterwards, and I think that points to the nature of what took place here, so we have these automatic floating zones, if you will, without geographic limitation, and then a 15-foot zone is imposed, and we would--

Unknown Speaker: What Meskill says on A-57, after noting that there were these two violations after the TRO, he says, however, the Supreme Court's First Amendment jurisprudence clearly requires more than two isolated incidents over the course of 1-1/2 years before a court may banish an entire protest demonstration from a given area, and that's your contention here.

Mr. Sekulow: --And that is our contention, and also--

Unknown Speaker: But Mr. Sekulow, I think you will agree that it is a standard in law regarding injunctions that if there is no incident following the TRO... the TRO is a very temporary thing.

Mr. Sekulow: --Right.

Unknown Speaker: And if there is no violation of it, that shows the injunction is working, not that it should be stopped.

I think your proposition is extraordinary, that if the very brief TRO is working, then the injunction must be stopped, rather than maintained.

Mr. Sekulow: But Justice Ginsburg, if it is working but infringes on free speech at the same time--

Unknown Speaker: Well, then... then there was something wrong with the TRO.

Mr. Sekulow: --Well, precisely.

Unknown Speaker: But the notion that I thought you were putting forward to us was that because there was compliance with the TRO there was no longer need for that restraint.

Mr. Sekulow: We have not challenged, nor are we here challenging the restrictions other than the two speech provisions, but the district court and the court of appeals acknowledge, and it's on A-8 of the petition appendix, that the demonstrations are mostly peaceful in nature.

Twelve judges of the Second Circuit Court of Appeals stated that in fact this was very different record than in Madsen.

And in Madsen, this Court held that in fact the issue of a fixed zone was debatable.

We think the debate should tip in favor of free speech here, especially since this Court in Madsen said that precision of regulation is required, couched in the narrowest possible terms.

Unknown Speaker: We also said in Madsen, Mr. Sekulow, that some deference was due to the trial court's formulation of the thing.

Mr. Sekulow: Yes, and this Court, in looking at the... in giving some deference to the trial court struck down the no-approach zone in Madsen and also declared that a portion of the 36-foot zone burdened more speech than necessary.

Mr. Chief Justice, I think that's precisely our point, that the pinpoint precision that this Court talked about in Madsen is absent here.

This is a one... this injunction applies to every single facility where abortions are performed in the Western District of New York, and it is one size fits all.

They did not carve it to specific needs, and we think a floating zone is not justified anyways, and a cease-and-desist provision--

Unknown Speaker: May I ask on the floating zone--

Mr. Sekulow: --Yes.

Unknown Speaker: --is it your position that a floating zone, no matter how carefully tailored, could never be justified as a remedy for repetitive speech?

Say a person operated a fur store and some animal rights person wanted... day after day walked... followed the person going to business, repeating the same message over and over and over again, would the First Amendment permit or prohibit some kind of floating zone for... to protect that person from just the repetition of the same message over and over again?

Mr. Sekulow: I think it would be prohibited by the First Amendment.

I don't think we can say--

Unknown Speaker: There's no... floating zone is per se bad?

Mr. Sekulow: --There are times, Justice Stevens, where floating zones have been adopted in domestic violence situations where... of course, that's not involving speech.

Unknown Speaker: No.

I'm just talking--

Mr. Sekulow: Right.

Unknown Speaker: --about harassing only in the sense of one must listen to the same message over and over and over again, and you say you just have to... you have to swallow that.

Mr. Sekulow: Well, I think on a public sidewalk or a public street we're going to hear messages we may not like, we may disagree with, but it can--

Unknown Speaker: Yes, but I'm talking about the same message over and over and over--

Mr. Sekulow: --By one person to the same person.

Could that approach harassment?

Maybe it could.

However--

Unknown Speaker: --And then if one could do it, why is it different if, instead of one doing it 20 times, 20 different people do it in succession?

Mr. Sekulow: --I don't think that necessarily that would be inappropriate.

Unknown Speaker: Oh.

Mr. Sekulow: In the context of robust debate on a public issue like this, there is going to be a variety of speech.

This injunction, though, which is interesting, prohibits a person from... a demonstrator from approaching anyone.

In fact, interestingly, this injunction does not limit its impact to women seeking the services of an abortion clinic, or physicians and staff.

It applies to any person seeking access, and provision 1(c), the no approach zone, it's similar to the no-approach zone.

It's the cease-and-desist provision, says on its face... I mean, it's very clear that a person or a group of persons can prohibit, or use the provision and prohibit speech.

How does a group of persons do that?

Is it one individual wants to hear a message, the other does not?

What happens if--

Unknown Speaker: Is that the way you would distinguish, if you would distinguish this situation from the application of some of the new stalker laws?

Mr. Sekulow: --I think the stalker laws are different in that regard.

Unknown Speaker: Because?

Mr. Sekulow: Because the persistence is not necessarily, Number 1, protected speech.

There's a number of issues.

Unknown Speaker: Well, let's assume that the stalker does have a message, and my guess is a lot of them do.

Mr. Sekulow: And at some point that crosses the line from speech to harassment.

We've looked at that issue.

Is there a way to prohibit one-on-one persistent speech on a public forum?

I have trouble with that, because I think it leads to a dangerous provision, but if there was harassment, you had... we have the case in the Second Circuit involving Ms. Onassis, and there the court said that a zone was appropriate.

But of course, there the court out the zone.

I also think--

Unknown Speaker: This injunction doesn't prohibit following, does it?

Mr. Sekulow: --It does not.

Unknown Speaker: It prohibits speaking.

Mr. Sekulow: That's correct.

It is targeted directly at speech.

Unknown Speaker: And you would feel differently about an injunction that prohibited following.

Mr. Sekulow: It's a different scenario.

It's the purpose of the communication, but--

Unknown Speaker: But I don't think this injunction prohibits the speech.

It just requires the speaker to stay 15 feet away, which is prohibiting following.

Mr. Sekulow: --No, I think not, Justice Stevens, with respect, for two reasons.

Number 1... and I want to draw an analysis, if I could.

In NAACP v. Claiborne Hardware, one of the most effective tools for the civil rights protestors was the stationing of sidewalk-based store watchers.

They were sometimes called deacons, sometimes called black hats.

And the Court acknowledged... this Court acknowledged that, as the lower courts found, that the volition of many black citizens were just overcome by sheer fear because the presence of these black hats was so strong and it was intimidating, but the Court still said that that was protected speech, and the fact that here the speech is vigorous, and it's about an issue that is part of a debate, doesn't entitle it to less constitutional protection, or alternatively protecting platitude.

Unknown Speaker: I still don't understand, what is the word, or the idea, or the expression that one could make if you're within a 15-foot radius that you couldn't communicate being the distance, a little bit less than the distance that we are now.

Is there some word, or expression, or thought, or idea, or view that is only communicable when I'm closer to you than I am at this moment, and if so, what is it?

Mr. Sekulow: I think, Justice Breyer, all of the above.

I think someone that is on the streets of New York that wants to talk to a woman who is about to engage in an abortion procedure, or for that matter a salesman who does business with this abortion facility, wants to communicate a message one-on-one, maybe wanting to share, as the records happen in this case, a Bible verse.

It's hard to show someone a Bible 15 feet away.

Unknown Speaker: But then they can go up and do that, can't they, unless the person affirmatively says that they don't want that.

Mr. Sekulow: Actually, there's no demonstration allowed within the 15-foot zones at all.

The only carve-out is the sidewalk counseling, which is the distribution of literature, according to the lower court, to dissuade someone from not having an abortion based on a particular statement, and then, of course, the cease-and-desist language comes in.

But if someone were simply holding a sign, or handing a religious tract, or simply trying to show a Bible to someone, they cannot do it, and in the decorum of this courtroom, it's quite easy for you and I to communicate.

Unknown Speaker: Why couldn't the counselor show the person the Bible within the 15... if the person doesn't object.

Mr. Sekulow: Well, the counselor could.

Unknown Speaker: Yes.

Mr. Sekulow: Unless, of course, somebody in that group says, get away.

Unknown Speaker: You need more than two people to show the passage from the Bible?

Mr. Sekulow: Well, I don't think that's... I don't think that's what I'm saying, Justice Stevens.

What I'm saying is, the Bible itself may not be deemed a form of demonstrating... a form of sidewalk counseling.

Unknown Speaker: But you're saying that because it's small print you have to be close for the person to be able to read it.

Fifteen feet, you can't read the Bible, obviously.

Mr. Sekulow: I think it's more than print.

I think it's the communication and the print.

I think if someone wearing a button that makes a statement, a religious statement, or a sentiment, that person--

Unknown Speaker: No, but you're responding to a question about what can't you do at 15 feet that you could do in less than 15 feet, and it seems to me your point is you've got something they couldn't read.

Mr. Sekulow: --I have something they couldn't read, it's hard to shout over sidewalk counselors, the lower courts acknowledge that the sidewalk counselors, the escorts, rather, trying to get these women in the clinic create an increased atmosphere, it's noisy, and it's hard to communicate.

Unknown Speaker: I understood from the record that the... whatever you call them, the antiabortion people had people called sidewalk counselors--

Mr. Sekulow: Sidewalk counselors, yes, Justice.

Unknown Speaker: --and the clinics had people who were meant to counter the sidewalk counselors.

Mr. Sekulow: Escorts.

Unknown Speaker: Who would surround the person coming in and talk about everything and anything, make noise, which made it quite difficult to speak to that person from 15 feet.

Mr. Sekulow: Precisely, and in that nature would also inform these women about their rights under the injunction, would encourage them to engage in a communication to stop the communication, they would surround them... this was not, as I said, courtroom decorum discussion.

This is discussion on a street where there's people on both sides of the issue.

Unknown Speaker: Mr. Sekulow, you had--

--But would that solve the problem if the injunction only applied to unescorted persons?

Mr. Sekulow: I don't think so.

I think that would be like--

Unknown Speaker: So really you're not resting on the fact that they are escorts there.

Mr. Sekulow: --My response was, Justice Stevens, that Justice Breyer and Justice Scalia were asking about the issue of communicating a message.

It's difficult to communicate a message on a public sidewalk.

How does one hand someone a leaflet 15 feet away when this Court recognized that one need not ponder the contents of a leaflet to mechanically take it out of someone's hand.

You can't take it unless you have an awfully long hand.

You can't take it out of someone's hand--

Unknown Speaker: Well, you can offer it, presumably, at the 15-foot boundary and say, here, I'd like you to take this to read it.

The person can refuse, and if you were closer and offer a leaflet, the person can refuse.

Mr. Sekulow: --But I think the point is, Justice O'Connor, that 15 feet away on a city street in Buffalo, New York, is not this courtroom, and I cannot just hand the leaflet, and I think I have the right--

Unknown Speaker: I thought the injunction let you.

Mr. Sekulow: --Excuse me?

Unknown Speaker: I'm sorry.

Doesn't the injunction allow someone to go right up next to the woman and say here, I'm 1 foot away, would you like to read this, I want to counsel you, and then the woman can say no.

Mr. Sekulow: The woman can say no, which we think the consent provision alone is the reason this provision of the injunction should be declared to burden more speech than necessary and therefore unconstitutional, but that's one--

Unknown Speaker: Mr. Sekulow--

Mr. Sekulow: --Yes, Justice Ginsburg.

Unknown Speaker: --Unlike a statute that's just regulating everybody, we do have an injunction that's supposed to be tailored to these circumstances, and you had no objection, I take it, to injunction against grabbing, pushing, shoving.

Mr. Sekulow: That is correct.

Unknown Speaker: The district court did make a finding that the sidewalk counselors often crowded around the patients, and mustn't there be some kind of keep-your-distance rule to prevent the pushing, shoving, grabbing that had gone on before?

There is a past history here that the judge was taking into account.

Mr. Sekulow: I think, though, the way to... if someone pushes, if someone grabs, if someone crowds so that someone can't move forward, there's provisions of the injunction that cover that, and they should be prosecuted for contempt.

I don't think to limit speech, including prohibiting demonstrations completely... I mean, under--

Unknown Speaker: No, but isn't the answer to that, Mr. Sekulow, that the closer they are, given the history, the more likely there are going to be incidents of pushing and shoving, and you can't as a practical matter, simply as a court, prosecute 100 contempts a day under these orders, so the idea, to have something... you're making a practicality argument.

I think the court is making a practicality argument.

The court is saying, let's have some kind of a zone which isn't going to cut off speech entirely, but which is going to reduce the probability that we are going to have a multiplicity of contempt actions every time somebody walks into an abortion clinic.

Mr. Sekulow: --Justice Souter--

Unknown Speaker: Isn't that the answer?

Mr. Sekulow: --I don't think it is in this regard.

The court tailored its injunction, or attempted to tailor its injunction to say no grabbing, no physical abuse.

We're not challenging that, but this injunction itself says, no--

Unknown Speaker: No, but don't you agree that the probability of grabbing is going to be greater the closer people are in these situations?

Isn't that the point upon which the court's order rests, and isn't that point correct?

Mr. Sekulow: --Well, they made that argument.

That was one of the--

Unknown Speaker: Isn't that point correct?

Mr. Sekulow: --Public access was one of the concerns that the court raised.

Unknown Speaker: Yes.

Mr. Sekulow: But I think--

Unknown Speaker: And that's... I mean, the point is correct.

Well, do you think that the requirement of very precise tailoring is consistent with sort of a prophylactic provision like that?

Mr. Sekulow: --I think no.

It has to be tailored specifically to what's taking place, and I think that precision of regulation is the standard, and--

Unknown Speaker: Mr. Sekulow, can you enter the 15-foot zone, crowd, and even grab, so long as you don't try to talk?

Mr. Sekulow: --You know, that's interesting.

It doesn't prohibit standing.

It doesn't prohibit--

Unknown Speaker: As long as you don't have a poster, and so long as you don't try to talk to the person, you can get within the 15 feet, grab, crowd, do--

Mr. Sekulow: --Well, you know, it says that no demonstrator shall physically abuse, grab, or touch, but I mean--

Unknown Speaker: --But the 15-foot zone does not apply to someone who is not trying to communicate.

Mr. Sekulow: --That's... that is how I think this injunction can be read, and that's, I think, again--

Unknown Speaker: Is there any evidence that the people who were grabbing and shoving before were tightlipped?

Mr. Sekulow: --No, there isn't, but I think... I think that--

[Laughter]

Unknown Speaker: The two go together, don't they?

Mr. Sekulow: I think not in this context.

I think yes, they can go together in the sense, is there a need for an injunction of some type?

The answer, yes.

We're not challenging the issuance of the injunction.

However, does that mean that demonstrations, the holding of a sign, the wearing of a button within 15 foot, 15 feet of an individual, any person seeking access, is constitutional, and we think not.

It has to burden more speech than necessary.

Unknown Speaker: Mr. Sekulow, what was... what is the meaning of something that the Government emphasizes in its brief, the provision that if the court concludes that some of the relief requested by the plaintiff should be granted, that the defendants will consent to the entry of an injunction against each and every one of them, and the Government tells us that the defendants thus stipulated below that any unlawful conduct found to have been performed by any of them could be attributed to all of them for purposes of the preliminary injunction.

So that sounds like if you did have some people crowding, pushing, needing this kind of keep-your-distance rule, that that same rule could apply to all of the people.

Mr. Sekulow: There was a concession, Justice Ginsburg, in the district court regarding the nature of the evidence, and it simplified in a pretty real way, and a not necessarily beneficial one, it simplified the evidence that was presented.

It does not change the nature of what's being challenged here, though.

We're not saying that an injunction should not be issued.

We're not saying it applies to one person and not the other.

We're saying that any demonstrator is prohibited from demonstrating within a 15-foot zone and a floating zone that goes without geographic limitation whatsoever.

No geographic limitation of this zone.

It just floats, and we think that burdens more speech than necessary, and--

Unknown Speaker: Did you ask to have that clarified, because wasn't there a point where the district judge said, gee, that's not what I meant.

Mr. Sekulow: --I found that... we found that fascinating, too.

The Court said, my gosh, it would be impractical.

In fact, it says... it goes further.

He said, no one would know how to comply with the floating zone, but then he acknowledges it's floating, and the Second Circuit acknowledges it's floating, so maybe the judge at the district court level forgot what he meant, I don't know, but it burdens more speech than necessary because it does exactly what the judge was concerned about.

How does one know when to back off?

Unknown Speaker: Mr. Sekulow, was it suggested at any point in the proceedings that it was inappropriate or inadvisable for the district court to maintain pendant jurisdiction in this case?

Mr. Sekulow: Yes, it was.

It was raised below, and it was rejected.

Unknown Speaker: You don't raise that point here?

Mr. Sekulow: Well, I think we're beyond that point.

I think that at this point... we thought it was a valid issue.

It's not part of the cert petition in that sense.

Mr. Chief Justice, I'd like to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Sekulow.

Ms. Finley, we'll hear from you.

Argument of Lucinda M. Finley

Mr. Finley: Thank you, Mr. Chief Justice, and may it please the Court:

I think we cannot lose sight of the record and the evidence in this case.

We have here an unrelenting campaign by defendants of illegal and tortious harassment, intimidation, obstruction, and trespass at health care facilities.

We have to keep that in mind as well.

The activity that the district court found occurred repeatedly is antithetical to the need of surgical facilities and hospitals for quiet and calm.

The idea of quiet zones and buffer zones around hospitals is a well established traditional principle in law, and all we're trying to do here is make sure such a zone pertains outside these surgical facilities.

Unknown Speaker: By requiring people to speak from a distance of 15 feet--

Mr. Finley: All... sorry.

Unknown Speaker: --instead of coming up close, does that--

Mr. Finley: The--

Unknown Speaker: --make the zone quieter or noisier?

Mr. Finley: --The preliminary injunction allows sidewalk counselors to come right up to people, which is far more accommodating of defendants' free speech rights than the buffer zone affirmed by this Court in Madsen and by the buffer zone around polling places affirmed by this Court in Burson v. Freeman.

The injunction here gives far more leeway to defendants than buffer zones previously upheld by this Court, despite their record of dangerous, medically risky, intimidating and harassing activity.

I think we need to focus on... yes, from 15 feet away they can, in fact, communicate.

As Justice Breyer pointed out, we are approximately 15 feet away now, and he--

Unknown Speaker: Without any traffic and without any opposing escort.

Mr. Finley: --He refers to the hustle and bustle of streets.

In fact, the record shows most of the time when people are trying to get in it's about 7:00 in the morning, and there isn't much traffic on the streets at 7:00 in the morning.

The record also shows that the greatest amount of noise being created is by the defendants themselves.

If occasionally other people lose their cool and shout back, that's to be expected and understood in this kind of volatile situation.

The district court found that it's the persistent face-to-face harangue by the defendants that often triggers other people into starting to yell back.

It's the defendants' conduct who initiates all of this noise and cacophony outside of surgical facilities, and that is what the district court found.

Unknown Speaker: Well, Ms. Finley, are you suggesting that there's some special rule for abortion clinics that wouldn't apply in other cases where people are being perhaps harassed or counseled or argued with?

Mr. Finley: No, not at all, of course--

Unknown Speaker: Certainly Madsen doesn't say that.

Mr. Finley: --No, it does not.

Unknown Speaker: Then why do you keep stressing the quiet zone outside the abortion--

Mr. Finley: Because Madsen did recognize that the governmental interest ensuring... in ensuring safe conditions for health care is a compelling interest, and I think we must keep in mind that that interest is very present in this case.

So I think there are a different calculus of governmental interests that are involved when protest is occurring outside hospitals and surgical facilities, as this Court recognized in the labor cases, NLRB v. Baptist Hospital and Beth Israel Hospital, so sometimes what might be a no more burdensome provision than necessary at a hospital, it may be different from what is no more burdensome than necessary at another sort of facility that doesn't have the same need for people being able to get in without being in stressed-out hysterics.

Unknown Speaker: --Did Madsen suggest that there has to be some underlying violation of statutory or common law to support a preliminary injunction burdening speech?

Mr. Finley: Well, of course, to get a preliminary injunction anyone has to show a likelihood of success on the merits of some valid cause of action.

That's--

Unknown Speaker: Okay, and what is it here that you rely on?

Mr. Finley: --Our causes of action... well, the district court found that in addition to the Federal civil rights claim that the--

Unknown Speaker: I thought that claim under section 1985(3) was dismissed here.

Mr. Finley: --Dismissed, and subsequently the complaint was amended and it was reasserted, but the district court also found that the State law causes of action for trespass, which under New York law broadly protects people's use and enjoyment of their property rights, and the causes of action under New York State law for harassing people for exercising their right--

Unknown Speaker: Could there be trespass on a public street or sidewalk, or would that just apply to the property of the clinic?

Mr. Finley: --In... under New York law, trespass is not simply the physical invasion of a line-demarcated private property.

It also includes interference with the fair and unfettered use and quiet enjoyment of your property.

We also have State law claims in the case for intentional interference with business relations, infliction of emotional distress.

Our State law causes of action are virtually identical to the State law causes of action involved in Madsen.

But this issue of whether the State law claims in this case still warrant relief has never been raised by the petitioners in the lower court, which I think is the forum that should first be given the chance to look at the remaining causes of action in light of the evidence.

Unknown Speaker: Did Madsen state that the consent requirement alone invalidated the no-approach provision in that case?

Mr. Finley: That is, I believe, an accurate quotation from Madsen, yes, Justice--

Unknown Speaker: So are you asking that we ignore that here?

Mr. Finley: --No.

We do not have a no-approach-without-consent provision in this injunction.

The cease-and-desist provision is substantially different.

The cease-and-desist provision specifically allows all uninvited approaches without consent.

It specifically allows the very thing the Madsen no approach zone did not allow.

There's a substantial difference under First Amendment law between not letting someone try to go up to somebody versus saying you have to respect that other person's right to refuse you.

This Court has repeatedly emphasized that the right to refuse a messenger, and the right to make your own choices about what you do and do not listen to--

Unknown Speaker: But the reason... the reason we struck down the uninvited approach provision in Madsen is as follows, quoting from Boos v. Barry: As a general matter, we have indicated that in public debate our own citizens must tolerate insulting and even outrageous speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.

Now, if you apply that same statement to... to what... unwanted speech just as we applied it to uninvited speech, it seems to me you get the same result.

Mr. Finley: --Nobody under this injunction, Your Honor, is protected from any speech at all.

They're just protected from the forced physical proximity of an intimidating person with medical evidence that that forced physical proximity elevates health risks.

Everyone here is going to have to encounter the message whether they want to or not.

Unknown Speaker: Medical evidence that the forced physical--

Mr. Finley: Yes.

Unknown Speaker: --proximity... where is that?

Mr. Finley: Dr. Hoagland's testimony, which is extensively recounted--

Unknown Speaker: He did studies on forced physical proximity, and it's--

Mr. Finley: --Dr. Hoagland was certified as an expert in both behavioral medicine and social impact theory, and social impact theory is, in fact, the study of how invasions of personal space create physical stress reactions, and the adverse effect of such reactions on medical care.

That was her precise area of expertise, and she testified about that at great length.

Unknown Speaker: --So we have experts like that now in any case where we're talking about this sort of thing?

Mr. Finley: I... it may be advisable for people to put on medical testimony.

Unknown Speaker: What was she a specialist in, social impact theory?

Mr. Finley: Behav... it's an established area of social science.

Unknown Speaker: Would you name it again?

Mr. Finley: It's called social impact theory, a scholar named Edward Hall developed it in the fifties, and there's been an extensive body of research in the fields of psychology, medicine, and anthropology that have further studied it.

It's the idea, the basic idea that there is a zone of personal space, and it varies according to the nature of the encounter.

For example, the appropriate zone of personal space here for this sort of encounter is about 15 feet.

Unknown Speaker: But I thought we had to... the Court had to find some violation of statutory or common law to justify a preliminary injunction.

Mr. Finley: And it did.

It found a likelihood of success on the merits.

Unknown Speaker: So I don't know what this argument does to bolster that.

I mean, it's not a theory of a violation of law.

Mr. Finley: No.

I think the relevance as I was responding to Justice Scalia's question, which I understood to be is there... what is the problem with having somebody force their physical proximity on you, so I was highlighting that particularly when people are going in for medical care, that is a... it escalates the health risks, which is a factor, of course, for injunctive relief.

Unknown Speaker: But you say the preliminary injunction could be based solely on testimony of an expert--

Mr. Finley: Oh... oh, no... oh, I--

Unknown Speaker: --on this social theory?

Mr. Finley: --I'm sorry, Your Honor, if you understood me to say that.

Unknown Speaker: I did.

Mr. Finley: Certainly I misspoke if I did.

No, that is not my position.

My position is that to get a preliminary injunction you have to show likelihood of success on the merits of a valid cause of action, irreparable injury, no adequate remedy at law, which the district court found that we in fact did, amply.

Unknown Speaker: Do I understand, Ms. Finley, that that is still something that's open to inspection by the district judge?

We did start out with a 1985(3) claim that the district judge erroneously thought was solid.

Then he said, but there are these State claims that can be substituted for it, and the Second Circuit refused... did not deal with that.

Mr. Finley: Absolutely yes, Your Honor, it is very much open to the district court.

This is a preliminary injunction.

Everything is open to the district court.

The Second Circuit instructed petitioners and the panel 2 years ago that they should take these arguments to the district court where they belong, and they never have.

Unknown Speaker: So the viability of this whole case under State law has yet to be fully tested in the district court, and it hasn't been touched by the court of appeals.

Mr. Finley: That is correct, Your Honor.

Unknown Speaker: But the district judge did make a preliminary finding that you had under New York law a probability of success on the merits.

Mr. Finley: That is correct, Your Honor, yes.

Unknown Speaker: But even... regarding... you're not contending that the provisions of the injunction do not have to be designed to prevent a violation of the law, as opposed to prevent the kind of emotional upset that your expert testimony related to.

You still acknowledge that the provisions of the injunction must be ordinated to preventing a violation of law.

Mr. Finley: Yes, of course.

The expert testimony documented elevated physical medical risk, which is substantially greater than mere emotional upset.

I want to move a moment--

Unknown Speaker: I don't understand that.

Does that have anything to do with whether State law is being violated?

Mr. Finley: --No.

Your Honor.

No.

Well, it may.

We've never yet tested in the district court the State law claims for tortious harassment, for example, and whether someone is being put under medically dangerous physical stress may be highly relevant to whether you've made out a claim for harassment.

That issue has never yet been tested in the district court.

Also, the amount of stress caused, and distress, may be highly relevant to whether we've made out a claim under our State law cause of action for intentional infliction of emotional distress.

In this context of antiabortion protest, there are State law-based decisions finding that conduct very similar to what defendants here do constitutes intentional infliction of emotional distress.

Unknown Speaker: I would say that persons who walk through a picket line in order to work despite a strike face extreme stress.

Have we ever in the labor area recognized that stressed individuals is ground for enjoining picketing and labor protest activities?

Mr. Finley: In the labor context, many courts have established buffer zones to keep the picketers out of the face of people, particularly when they're picketing at hospitals.

Unknown Speaker: But this is an order to prevent violence, et cetera.

Mr. Finley: Violence and intimidation.

Unknown Speaker: Those cases do not talk about stress to the individual.

That's somewhat antithetical to very, very essential First Amendment values.

Mr. Finley: Well, I think that when people are going in for surgery, and there's medical evidence that to safely perform the surgery the stress needs to be reduced, not elevated, that is a governmental interest that is present in this context that is only present in labor contexts when people are picketing at hospitals or nursing homes, and--

Unknown Speaker: And I submit to you that anybody who walks through a picket line at any facility in order to take a job during the pendency of a strike is subjected to great emotional stress, and our cases have never recognized that as a ground for injunction.

Mr. Finley: --Well, Madsen recognized that the elevated medical risks are a governmental interest that needs to be weighed in assessing whether the restrictions on speech are no more burdensome than necessary to protect that governmental interest in ensuring safe conditions for health care.

Unknown Speaker: But only in the context of keeping the noise down outside the hospital which could be heard inside.

We studiously avoided using that as a basis for validating any of the restrictions imposed outside the facility which could not... with respect to speech that could not be heard inside.

Isn't that what we did in Madsen?

Mr. Finley: Well, I'm sure Your Honors know better what you did in Madsen than I do.

Unknown Speaker: Oh, I doubt it.

[Laughter]

Mr. Finley: That discussion was... yes, Your Honor, that discussion was linked to the noise provision, but the same interest pertains when people are having others screaming in their face.

Unknown Speaker: Well, what about a situation such as Justice Kennedy posits, where you walk through a picket line to go to work, and you've got a very important assignment that day, and you feel you're subjected to a great deal of stress, you're not going to be able to do that work.

Now, is that kind of a separate governmental interest that has to be taken into consideration, too?

Mr. Finley: Whether the protest conduct disrupts the safe and normal functioning of the place is a basic governmental interest that this Court has recognized many times in Grayned v. Rockford on, so I think yes, whether--

Unknown Speaker: Ms. Finley, why do you lay such stress on this point, when I thought the major reason for the injunction and for its provisions was that there was a history of grabbing, pushing, shoving, and the district judge thought that it was reasonable to have a keep-your-distance rule to make sure that the pushing, grabbing, and shoving didn't go on again?

I did not regard whatever you call that expert as central to your case, and perhaps you ought to clarify whether it is an extra, or whether it's pivotal.

Mr. Finley: --No, I would agree, Your Honor, with your point that the defendant's persistent, proven conduct of crowding, grabbing, punching, sometimes knocking people down is what necessitates some kind of a clear zone in this case.

I also want to emphasize this idea of floating--

Unknown Speaker: It's not enough that the zone be reasonable, though.

You use the language, necessitates.

It isn't enough that it be reasonable to establish--

Mr. Finley: --No.

In Madsen--

Unknown Speaker: --such a zone.

The zone must be no more than is necessary.

Mr. Finley: --That's right, and here the 15-feet, the length of a car, is necessary to ensure that a car can safely drive down the road.

Unknown Speaker: Well, it's 15 feet on all sides.

Mr. Finley: All sides of--

Unknown Speaker: Of the person, I take it, or the vehicle.

Mr. Finley: --Yes.

It would be like a circle around, yes.

Unknown Speaker: All right, and so if you have two people, that amounts to a 60-foot exclusion zone, I take it.

Mr. Finley: No.

Two people are walking side by side--

Unknown Speaker: No.

I have two people walking 15 feet away from each other.

Mr. Finley: --But at all points sidewalk counselors can always come right up.

Unknown Speaker: I'm talking about the extent of the zone.

It can be 60 feet if two people are walking 15 feet away from each other, each being protected by the bubble.

Mr. Finley: I think I would say it could be 30 feet but not 60, 15 in this direction and 15... that's 30.

Unknown Speaker: At the outer extremities it would be 60.

There's a 60-foot slot.

Mr. Finley: It could possibly be, although--

Unknown Speaker: Fifteen... well, it's not... it's mathematical.

It's 15 feet to the left, 15 feet to the right, 15 feet each between, that's 60, right?

Mr. Finley: --The reason I said possibly is there's no evidence in the record of that problem ever happening.

Unknown Speaker: Do we need evidence to add 15 X 4?

[Laughter]

Mr. Finley: No, Your Honor, we don't need a mathematical expert.

But this... the point you're raising--

Unknown Speaker: Of course, we don't have to limit it to two.

They could have four each, 15 feet apart.

[Laughter]

It would take care of a four-lane highway.

I don't know why Justice Kennedy limits it to two.

Mr. Finley: --I think you're alluding to the notion of the floating bubble, and I want to remind this Court that judges under a Federal statute, 18 U.S.C. 1507, have what amounts to a floating bubble around any building or residence you use or occupy.

People can't go near--

Unknown Speaker: Yes, but the building doesn't float.

[Laughter]

Mr. Finley: --But judges move from building to building, and it says building or residence used or occupied by judges, so you are protected from people demonstrating near your courthouse, your home, an office you may use off-premises--

Unknown Speaker: Yes, but I have to get... On the hypothesis you're raising, I have to get to the courthouse or to the house, or whatnot, before the zone appears.

Mr. Finley: --Yes, and it--

Unknown Speaker: It doesn't come out to meet me.

Mr. Finley: --No, and if there were a record that protestors started impeding your paths as you tried to go to work or to home, I submit someone could easily get an injunction to keep a clear zone--

Unknown Speaker: But wouldn't the--

Mr. Finley: --around you so you could get to work.

Unknown Speaker: --But wouldn't there be a difference, and isn't this the difficulty in this case, that if there were simply a 15-foot zone around one person, that's fairly easy to administer and to police, but when you've got multiple, intersecting 15-foot zones around a lot of people who may even be subject to argument as even covered by the zone, you've got something which is far more difficult to administer.

And I was suggesting a moment ago that... when Mr. Sekulow was arguing that there was a kind of a practicality consideration in having a zone at all, but there's another practicality argument, and that is when the zones are moving and intersecting like this, it may be difficult to enforce with reliable evidence, with reliable proof.

And isn't that a good argument for saying, don't have floating zones, have fixed zones.

Realize that things are going to be unpleasant outside the fixed zones, they're going to be less unpleasant inside, but everybody will know where the line is, and the First Amendment isn't going to suffer from the uncertainty.

Isn't that a fair argument?

Mr. Finley: I think it is, Your Honor, and just if I may conclude the point... I see the red light is on... that a lot of the problems you're alluding to are precisely because the district judge here gave the defendants more leeway than the fixed zone in Madsen.

He allowed them on the same side of the sidewalk, which creates the need to have a clear zone around people.

If you push them across the street, as you affirmed in Madsen, a lot of these problems would not arise, and this--

Unknown Speaker: Thank you, Ms. Finley.

Mr. Finley: --Thank you.

Unknown Speaker: General Dellinger, we'll hear from you.

Argument of Walter E. Dellinger, III

Mr. Dellinger: Thank you, Mr. Chief Justice, and may it please the Court:

In light of the questions about the practicality of how this injunction works, it might be useful to look at this case from the vantage point of the trial judge in February of 1992.

At that point, he had had several days of hearings on the preliminary injunction and weeks of testimony on the contempt proceedings against Paul and Robert Schenck and others who violated the temporary restraining order.

One of his findings, and they're set out at pages 79 to 149 of the Joint Appendix, one of his findings was that these named defendants had deliberately engaged in a technique of physically crowding in an intimidating and obstructing manner.

What's a trial judge supposed to do in the face of that kind of finding?

If he were to issue an injunction precisely in those terms ordering the defendants to cease crowding in an intimidating and obstructing manner, what problems would that cause for a police officer who is at the scene, trying to understand how to enforce that?

Unknown Speaker: Well, one of the things he's supposed to do is read the First Amendment, I take it, and what he's doing here is, he's prohibiting certain conduct based on speech, and that means that the injunction must be precisely tailored.

It's not just to eliminate harassment.

Mr. Dellinger: I'm--

Unknown Speaker: This injunction goes much further than that, and if you want to defend it as saying that everything here is necessary to avoid the touching, grabbing aspect, that's one thing, but the harassment rationale as I see it goes much further.

It protects people against repeated, very annoying, very stressful expression of views by those who differ with them--

Mr. Dellinger: --Justice Kennedy, I--

Unknown Speaker: --and that's a very difficult First Amendment case.

Mr. Dellinger: --I believe that it is not difficult because the trial judge did tailor this to burden no more speech than necessary by making it clear that this message, or messages could continue to be conveyed.

There's no speech that is silenced by this injunction.

I think the judge understood that the message that someone is about to commit a deeply immoral act is disturbing and upsetting, but that's the price of the First Amendment.

One of our citizens has a constitutional right to convey that message to another, but in this case to avoid a different kind of problem, not the message, but two aspects of the crowding that are not related to the message are at issue here.

Unknown Speaker: In--

Mr. Dellinger: Justice Breyer, if you wish... well, in further response to Justice Kennedy, one of those issues is the sheer effect of the crowding itself, that is, the use of what were called constructive blockades by having 4, 6, 10 people literally crowd around a patient as she attempted to approach the clinic, and to use that in an intimidating way.

The second--

Unknown Speaker: --I don't under... why is that a constructive blockade?

I... a blockade means preventing somebody from entering.

Were these people preventing anyone from entering?

Mr. Dellinger: --It was a construct--

Unknown Speaker: They were just annoying the person--

Mr. Dellinger: --No.

Unknown Speaker: --and that's why it was a constructive blockade.

Mr. Dellinger: Well, they were not physically barring the people from entering, but--

Unknown Speaker: Well then, it's not a blockade--

Mr. Dellinger: --Then it's not a blockade.

Unknown Speaker: --constructive or otherwise, it seems to me.

Mr. Dellinger: The term, constructive blockade I think came from those who were engaged in them, Justice Scalia, because the use of 4, 6, or 10 people to crowd around an individual and to use that effect... we had testimony, or the plaintiffs had testimony in this case of one of the women who said she felt like she was in the middle of a lynch mob.

That is intended to dissuade people from continuing to go, not by appealing to her conscience or her shame or her medical self-interest, but to dissuade her because of running this gauntlet, and if that prevents people--

Unknown Speaker: I see.

Are you going to apply that to labor picketing, too?

And Claiborne Hardware case, where the Court... this Court struck down a speech-restrictive injunction because the violence that accompanied it was episodic and isolated.

Mr. Dellinger: --Here, Justice O'Connor--

Unknown Speaker: How do you distinguish that?

Mr. Dellinger: --Here I think it is--

Unknown Speaker: And it effectively prevented people from entering a restaurant, or what have you.

Mr. Dellinger: --I think the difference is that in this case the... first of all, there was a record... the contempt proceedings are probably the most accessible place... that this was constant and ongoing, and this was an attempt that this was a medical facility, its--

Unknown Speaker: But I thought there were something like five episodes over 18 months.

Mr. Dellinger: --Those were the ones, I think, that were raised in the contempt proceedings.

The actual controversy itself, the actual proceedings were continuous and, of course, they were under, as several justices noted, under a TRO, so that, you know, ideally they're... they... there shouldn't have been any.

What the judge did in this case, faced with this situation and trying to give some kind of guidance that would be useful to the parties, to the police, is to set what Justice Ginsburg called a keep-your-distance rule.

Basically--

Unknown Speaker: In answer to Justice Kennedy and Justice O'Connor, and I wonder, I'm just asking this, is it relevant to consider this is not labor picketing or civil rights picketing because the people by and large are pregnant women who are undergoing a serious medical procedure.

You haven't brought that up, and I wonder the extent to which that is constitutionally relevant.

I would think it might be.

Mr. Dellinger: --I do think it is relevant in precisely this way.

The Court's decisions, like Grayned v. City of Rockford, about a public school, NLRB v. Baptist Hospital, cases like that, note that the Government interest is sometimes dependent upon the nature of the activities that are to occur.

You don't need social science... you don't need social science evidence to reach the conclusion that having to go through this kind of obstructive and intimidating crowding is not good for people who are on their way to see the doctor.

Unknown Speaker: Is there... well, that's it, on their way to see the doctor.

Surely it's not the case that every woman who's going in there is going in to have an abortion.

I assume they must visit the clinic at least once beforehand.

Mr. Dellinger: There are different--

Unknown Speaker: And maybe once afterwards.

Mr. Dellinger: --That is correct.

Unknown Speaker: So probably less than half of the women who are going in, just to speak of the women who are going in... does this injunction apply only to women going in?

Mr. Dellinger: No.

It applies to all of those, including staff members, who--

Unknown Speaker: Who go in, so even if you take just the women, probably less than half of them are going in to have--

Mr. Dellinger: --That is--

Unknown Speaker: --a medical procedure--

Mr. Dellinger: --Well--

Unknown Speaker: --at that time.

Mr. Dellinger: --Yes.

At least there are probably less than half of them are going in.

Some may be being treated for cervical cancer, or for a number of--

Unknown Speaker: So would the same reasoning apply simply to a group of, a building where doctors had offices but no surgical procedures were performed?

Would the same stress analysis apply?

Mr. Dellinger: --It would apply, Chief Justice Rehnquist, but with, I think, significantly less force than it does in those facilities where stress applies.

Basically these... what the judge came up with, here, while protecting the ability to convey this message, was a simple set of rules.

If you read... if you read the preliminary injunction at pages 183 and--

Unknown Speaker: Mr. Dellinger, may I interrupt you--

Mr. Dellinger: --Yes.

Unknown Speaker: --because I think you're going on to another point, and I just want to raise another point along Justice Breyer's lines.

Is your argument that when the State is... or when the court is enforcing, let's say, a trespassing law, in determining what would be an appropriate injunction to enforce that star to preclude threatened violations, it may take into consideration the activities of the victims, and if the activity of the victim may be to obtain medical treatment, then high blood pressure can be taken into account.

Is that basically your argument?

Mr. Dellinger: Yes, that is certainly part of a calculation here.

Unknown Speaker: So labor picketing in the context of air traffic controllers would be a different case?

Mr. Dellinger: I think--

Unknown Speaker: Because you don't want to upset air traffic controllers.

[Laughter]

Mr. Dellinger: --It is... it is not at all clear that there would be any prohibition in the First Amendment or elsewhere on the use of close physical proximity and an intimidating and obstructing manner whether you're dealing with judges coming to work or air traffic controllers.

I mean, I think what you want to look at the cases and be careful about, as this judge was, is that you do not want to predicate an injunction on the fact that the message would be upsetting to the air traffic controllers or the judge.

The message is something we have to tolerate.

Unknown Speaker: General Dellinger, what is careful about 15 feet of any personal vehicle seeking access to or leaving?

One point that was made is, there's no definition of when access begins or when leaving ends, so this could go on and on and on.

There's no stopping point and there's no starting point.

Mr. Dellinger: Justice O'Connor, at page 29 of the Joint Appendix the judge... I'm sorry.

I'm sorry, Justice Ginsburg... at page 8... 29 of the Joint Appendix the judge notes precisely that this is limited to activities that are at the sites, not anywhere you may go in doing it, and it is limited as well by the fact that it simply says, stop crowding these patients and let them walk away.

It doesn't--

Unknown Speaker: Thank you, General Dellinger.

Mr. Dellinger: --Thank you.

Unknown Speaker: Mr. Sekulow, you have 3 minutes remaining.

Rebuttal of Jay A. Sekulow

Mr. Sekulow: Thank you, Mr. Chief Justice.

Actually, what General Dellinger was referring to on page 29 says that the scope of the injunction and these injunction floating zones do float without geographic limitation.

It says that they are structured to protect the rights of all party and directed to the activities at the site chosen for demonstration.

Anyplace these individuals are demonstrating is the site chosen for demonstration.

As I understand the Government's argument and the respondents', there is now a medical exception to the First Amendment.

This Court in Madsen dealt with evidence that came to the same conclusions regarding increased stress.

Despite that increased stress, the no-approach zone was still deemed to burden more speech than necessary.

If the owner of Claiborne Hardware had a heart condition, would he now say, get these protesters away from the front of my store because I've got a heart condition that's going to be aggravated when I go in there, and I think the answer has to be no to that, that... the owner of a fur store is aggravated because there's animal rights protesters out there picketing.

I think these are the types of things which is part of our free debate.

Unknown Speaker: Sticks and stones will break my bones but words can never hurt me.

That's the First Amendment.

Mr. Sekulow: That's certainly our position of it, and that is exactly correct, and those verbs might be aggressive advocacy, and I think it's also important--

Unknown Speaker: And your point is they've never used sticks or stones.

Mr. Sekulow: --Not these clients.

Unknown Speaker: No.

Mr. Sekulow: But they do use words, but it's interesting, those words under this injunction, if they were directed at, say, a Xerox salesman who was doing business with the abortion facility and a demonstrator were to try to approach him and say, please don't do business with this facility because they're engaged in a practice that we personally find abhorrent.

That Xerox salesman... not just the woman seeking abortion... that Xerox salesman has the advantage of this injunction.

On page 183, it says it applies to any person seeking access.

Unknown Speaker: But if in fact, coming right next to a person, right in their face, screaming at them and so forth, does physically hurt them, then it's like a stick or stone.

Mr. Sekulow: Well, I think that's actually prohibited by the injunction that we're not challenging, screaming in someone's face to the point where--

Unknown Speaker: And if pressing around them and so forth hurts them as they're going into a medical procedure, then it's like a stick or stone.

Mr. Sekulow: --And I think that's why section 1(c), Justice Breyer, prohibits crowding, and we're not challenging that.

But this injunction on the cease-and-desist provision on paragraph 1(c) says that it can be imposed by any person or any group of persons, so a group of persons are entering the abortion facility, the woman seeking the abortion wants to get the information, wants to talk to the sidewalk counselor, but the companion says no.

Under this injunction, under section (c), 1(c), the cease-and-desist provision is implicated.

That's the way it's drafted.

That burdens more speech than necessary.

The citation, and it's consistent in the briefs, we think it just misses the mark, and that is the Beth Israel Hospital v. NRLB did not say you can't distribute literature inside a hospital.

It said that... which by the way, of course, as this Court knows, NLRB was not a First Amendment case, but it overturned a prohibition on leafleting and solicitation in the cafeteria and in the lunchroom in a private hospital where patients did gather on occasion, so--

Unknown Speaker: Mr. Sekulow, was there any followup to the colloquy with the district judge, who seemed to recognize that there was some ambiguity in this 15... what has been referred to here as the bubble zone within 15 feet of persons or vehicles seeking access to, or leaving the facilities... you've called our attention to that colloquy where the judge said, gosh, I didn't mean that.

Mr. Sekulow: --Your Honor, I was referring to the reply brief, the attachment at appendix A-3.

Chief Justice Rehnquist: Thank you, Mr. Sekulow.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Vernonia School District v. Acton - Oral Argument

Fri, 09 Jan 2009 14:49:58 +0000

Case:

Vernonia School District v. Acton

Media File:

94-590_19950328-argument.mp3

Related Transcript:

1994_94_590_argument.xml

Transcript:

Argument of Timothy R. Volpert

Chief Justice Rehnquist: We'll hear argument now in Number 94-590, Vernonia School District.

Is that the way you pronounce the name of the--

Mr. Volpert: Yes, it is, Mr. Chief Justice.

Chief Justice Rehnquist: --Versus Wayne Acton.

Mr. Volpert.

Mr. Volpert: Mr. Chief Justice, and may it please the Court:

The issue presented is whether a school district faced with a serious drug problem with student athletes at its core may reasonably require athletes to submit to drug testing absent individualized suspicion.

The school district has established a serious threat to its ability to educate its students and to the safety of its athletes--

Justice Souter: Has it identified that threat as drug use, as opposed to, sort of a lot of bragging about drug use?

It seems to me, my recollection is that the, kind of the hard evidence on the actual usage was on the thin side, whereas there was plenty of evidence that people were going around bragging about drug use, glorifying drug use, giving the impression that it was a smart thing to do, and kids at that age claim to have done a lot of things that they haven't done.

Where does the, sort of the hard evidence stop and the evidence of talk begin?

Mr. Volpert: --The hard evidence of drug use consists, Justice Souter, of observations on numerous occasions by a teacher of students smoking marijuana across the street, arrests of student athletes for using drugs, confiscation of drug paraphernalia on school grounds, admissions by students to the principal that they have used drugs, admissions by certain student athletes to the coaches that they had used drugs, coaches' observations of marijuana coming from the room of athletes the day after a serious injury--

Justice Souter: Well, there was one example of that, for example.

Was there more?

Mr. Volpert: --I'm sorry, of what?

Justice Souter: I mean, the... as I recall the briefs, there was one example of a coach going into a... I think it was a wrestler's room, and he smelled... after the kid had been injured, and he smelled pot.

I mean, were there other instances of that?

Mr. Volpert: There were no other instances that I can recall from the record, Justice Souter, where the smell of marijuana, where the teachers or coaches noticed the smell of marijuana.

Justice Souter: I think that's what's bothering me, because... I'm sure you didn't intend this, but I think you spoke of it in the plural, and yet there was only one instance of it, and that's why I'm troubled by the difficulty of figuring out just what is provably there about use, as opposed to what is generalization, or what is generalization about student bragging.

Mr. Volpert: Well, I could only answer that by saying that I believe that we have numerous... I don't believe, we do have numerous observations, admissions, proof of athletes being arrested for the use of drugs, and there is... I believe what you're referring to is, there is one instance, and I did not mean to speak of it in the plural, where a wrestler... where a coach smelled marijuana coming from a wrestler's room.

The one thing that it seems to me is missing from this record is a direct observation of a student athlete using drugs and then, for instance--

Justice O'Connor: Well, Mr. Volpert, did the school district try a drug testing scheme based on reasonable suspicion that a particular student might be experimenting with drugs?

Mr. Volpert: --If you mean urinalysis drug testing, Justice O'Connor, no, they did not.

Justice O'Connor: Well, the same kind of testing you're doing under... or the school was doing under this random--

Mr. Volpert: No, they--

Justice O'Connor: --testing.

You didn't ever use reasonable suspicion, and for those that the coaches suspected of using drugs--

Mr. Volpert: --We did not--

Justice O'Connor: --Ask them to be tested.

Mr. Volpert: --Excuse me.

We did not ever combine reasonable suspicion with urinalysis drug testing.

Justice O'Connor: Why not?

Mr. Volpert: There's no direct evidence in the record with regard to that.

I can only surmise that the district determined, the school district and the school board made a reasonable determination that first of all they would have difficulty making a reasonable accusation based only on suspicion of drug intoxication, and second of all, that they assumed that there would not be the deterrent effect that a random drug testing program would have, because the only way to... if you are basing it on reasonable suspicion, you are largely left to observing behavior, and bizarre behavior, and then reaching a conclusion--

Justice O'Connor: Or relying on what people have been saying.

If somebody says they have been experimenting, you don't think that would give rise to reasonable suspicion--

Mr. Volpert: --Well, the--

Justice O'Connor: --that it might be true?

Mr. Volpert: --The problem is that if someone says on Wednesday that they have used drugs in the past, I am not at all convinced that there would be a reasonable suspicion sufficient to test them at that time, just based on conversations of past drug use.

Justice Kennedy: Do you think that the rule that we announce ought to be a rule that's specific on a school-by-school, case-by-case basis, or would it be plausible for us to say, a) there is a drug problem of dangerous proportions in this middle and high school population throughout the country, and that even those schools that are relatively drug free have a strong interest in keeping themselves that way?

Mr. Volpert: Justice Kennedy, I believe that this Court's holdings in Skinner and Von Raab, this Court could reach such a conclusion.

However, I think that there is a reasonable basis for drawing the line and requiring individual school districts to establish, or to reasonably conclude that they have individual problems.

Justice Kennedy: Each district, or each school?

Suppose there are three high schools, one with a serious drug problem, the other mild... the other mild by today's standard, which means only 10 percent of the students are using them from time to time... and the other substantially less than that.

Could you have a district-wide rule?

Mr. Volpert: If the school district on the local level determined that there was a serious drug problem in one of the schools, and after deliberation reached a reasonable conclusion that there was an immediate threat to the other schools, I believe you could.

Chief Justice Rehnquist: How about our decision in the City of Renton case dealing with adult bookstores and so forth?

There we said that one city council could rely on findings made by other city councils as to the effect of adult bookstores in connection with neighborhood deterioration?

Mr. Volpert: Mr. Chief Justice, I believe that certainly a school district could rely on evidence of a drug problem in neighboring school districts.

I also believe that based on this Court's decisions, especially in Von Raab, this Court could decide that a school district without any drug problem could rely on national evidence, but I think that there is a reasonable basis for drawing a line and allowing individual school boards to make that determination.

That is not to say that it would have to be based on... that it has to be based on evidence in each school in the district.

That does not say that it cannot be based on evidence of a drug problem in the county, or in the general area.

If there is a reasonable belief of a serious and eminent threat of drug use in the schools, we believe that testing should be allowed.

Justice Souter: Now, by the same reasoning, shouldn't testing then be allowed through the entire school population?

And haven't, in fact, you made... if your case is good here, haven't you in fact made a case for random testing of the entire school population in these schools?

Mr. Volpert: Justice Souter, under the facts of this case, I believe we have probably made a sufficient case for drug testing of the entire student body of the Vernonia School District.

Justice Souter: Because your argument basically is that the nonathletes tend to follow the lead of the athletes, so that if your hypothesis is right, then sort of--

Mr. Volpert: No.

Justice Souter: --throughout the school population you're doing this.

Mr. Volpert: No, that would not be our argument.

Our... my argument is that that, in fact, occurred.

I would not... to the extent... I would not base that on speculation that because athletes are using drugs, that there might be a spillover effect.

In this case, there is proof, I believe the district court called beyond any reasonable doubt, that there was a drug problem which was all-pervasive throughout the school system, athletes and nonathletes.

Justice Ginsburg: Mr. Volpert, isn't there a significant difference between the people who go to school, who are required to go to school by State law, and athletes?

The athletes sign a consent form, do they not?

Isn't there a difference between athletics, which is a volunteer activity... I thought that you were relying on that distinction, and that's why you were limiting the testing to the athletics program, but now you tell me no, it's just on the basis of pervasive drugs.

You could randomly test all students.

Mr. Volpert: Justice Ginsburg, in this case we have a serious threat to athletes and a serious threat to preservation of discipline and order in the schools.

In our case, we have both.

In response to Justice Souter's question, I was simply suggesting that it would be possible to establish a situation that was so bad in the general school population and was such a threat to the preservation of order in the schools that would justify testing of all athletes... excuse me, of all students.

That is not--

Justice Souter: But didn't you also say that you had it here, that you had made the case here, or could have made the case here?

Mr. Volpert: --I think hypothetically we could have made that case under these facts.

Justice Souter: So that you didn't... on your theory you didn't need, as Justice Ginsburg points out, the feature of the voluntary consent form.

Mr. Volpert: Our case is based on both.

I am responding to a hypothetical.

I do not think that in all circumstances it is necessary for you to have both.

Justice Souter: Serious enough problem, you don't need the consent; less serious problem, you might need it?

Mr. Volpert: Extreme problem.

Justice Stevens: Let me ask a different question.

Supposing... if it's that serious, you're also assuming it's so serious you can't... you wouldn't have any individualized suspicion as to particular students who might be using drugs.

It would be sort of a contradiction, it seems to me.

Mr. Volpert: Well, I don't think so, Justice Stevens, because if you... it's kind of hard to characterize the record in this case, but when you read the record in its entirety, you realize the extent to which drug use became... the extent to which disciplinary problems became pervasive.

Justice Ginsburg: But Mr. Volpert, we have findings.

What did the... the district court made findings, and the Ninth Circuit said, we accept those findings.

Mr. Volpert: Correct.

Justice Ginsburg: Rejected... even though the Ninth Circuit came out the other way.

Those facts are the ones that control this case.

And what were the facts that the district court found?

Did they find... the district court find that everybody in the school was involved, or what exactly is the fact basis for the case?

Mr. Volpert: The district court found, Justice Ginsburg, a startling and progressive increase in the use and glamorization of drugs, characterized the studert body being in a state of rebellion, characterized... said a general flagrant attitude that there was nothing the school could do about their conduct or drug use typified a usual day.

Teachers testified about a tremendous difference in the type of behavior than they had seen over the course of the last 16 or 17 years.

Justice Stevens: None of that sounds like it's confined to athletes.

Mr. Volpert: Pardon me?

Justice Stevens: None of that sounds like it's confined to athletes.

Mr. Volpert: Justice Stevens, the district court found that the athletes were among the leaders of the group in the classroom who were causing disruptions.

Justice Stevens: How do they know that if they don't have individualized suspicion?

That's what puzzles me.

Mr. Volpert: How do they know that--

Justice Stevens: Yes.

Mr. Volpert: --That the athletes were being disruptive?

Justice Stevens: No, no.

They know who the leaders are who are the most frequent users of drugs, but they don't have any individualized suspicion as to particular individuals.

Mr. Volpert: Well, the district courts referred to the conclusion that this was... that the conduct was drug-related, if that's what you're asking, as being inescapable, and the Ninth Circuit said that the district... the district officials observed conduct which was so far out of the norm that drug use was a logical conclusion.

Now--

Justice Stevens: Well, that would be individualized suspicion, wouldn't it?

Mr. Volpert: --Well, I don't think so necessarily.

If you see in the classroom someone misbehaving, and you're a teacher, you at that point have to make an important choice if you're suggesting that you drug test based on individualized suspicion.

You have to decide... make very difficult decisions as to whether this behavior is so bizarre that it indicates the use of drugs, and that you're going to make an accusation and drag someone down to the principal's office--

Justice O'Connor: But Mr. Volpert, isn't that pretty much what the Fourth Amendment is designed to require, something based on individualized suspicion, and the school district didn't even try that, did they?

Mr. Volpert: --Well--

Justice O'Connor: I mean, the school made no effort to at least launch its program on the basis of some kind of testing based on individualized suspicion, and I think in the school context we've said it doesn't have to be probable cause, but there was no effort made to do that, was there?

Mr. Volpert: --There was no... let me draw a distinction, Justice O'Connor.

There was no drug testing program based on reasonable suspicion.

Justice O'Connor: Right.

Mr. Volpert: The district took many, many steps to try to solve it as a behavioral problem--

Justice O'Connor: Well--

Mr. Volpert: --observing behavior and dealing with it.

Justice O'Connor: --let me ask you this.

Suppose we were to conclude that at least on this record the school should try individualized suspicion.

Now, it's overlaid here by the use of consent forms.

Do you take the position that if there is a valid consent form by the student and the student's parents that there would for that student not have to be individualized suspicion?

Mr. Volpert: We have never relied on the consent form in this case.

James Acton--

Justice O'Connor: But could you?

Mr. Volpert: --did not sign a consent.

Yes, I believe we could.

Justice O'Connor: Yes, so you might have some combination in effect.

Mr. Volpert: The problem, Justice O'Connor, with individualized suspicion is clear in our record in the problem of drugs, it was clear in the record in Skinner, and clear in the record in Von Raab.

Because it is so difficult to detect for certain that you have any kind of drug involvement in behavior, especially with adolescents--

Justice O'Connor: A reasonable suspicion doesn't mean for certain, does it?

Mr. Volpert: --No, it does not, but when you are asking a teacher to actually make an accusation of drug use, and that accusation is based on a number of circumstances, it is far less intrusive in a circumstance like this to allow the random drug testing rather than just fingering individual athletes, taking them to the principal's office, and make them submit to the test.

You would also--

Justice Kennedy: It's not only less intrusive, I take it the suggestion of individualized suspicion would alter fundamentally the relation between the student and the teacher.

Mr. Volpert: --I think it would, Justice Kennedy.

Certainly under this record I think virtually everyone acting up in the classroom would have been taken down to the principal's office and basically accused of drug use.

In this situation, contrary to the position--

Justice O'Connor: Not accused, just asked to be tested, isn't that the proposal?

Mr. Volpert: --Except that in the situation of individualized suspicion, you are telling an individual student, I believe that you are using drugs, and I think the Court must focus on the burden that that places on teachers to actually make that type of accusation.

They are not experts in the field.

Justice O'Connor: Well, if it's combined, however... if all the school wants to do is test student athletes, and if all but a handful have signed valid consent forms, I assume as to those with valid consent forms that the existing program could be used.

That leaves you with a handful of people who decline to sign a consent form, I suppose.

Mr. Volpert: That would.

Another problem with reasonable suspicion, of course, is in the case of drug use, most of the time you're going to miss it.

That may be the primary problem.

The expert testimony is that 90 percent of the time, you're not going to detect drug use.

Justice O'Connor: How long was this random testing in effect in the school?

Mr. Volpert: It began in the fall of 1989, and the decision from the Ninth Circuit was rendered last spring.

Justice O'Connor: And during that interval of time, how many tests turned up positive?

Mr. Volpert: I believe the testimony was, an estimate from the superintendent, two or three.

Justice Scalia: It must have been a very effective program, then--

Mr. Volpert: Well, it was a very effective--

[Laughter]

Justice Scalia: --Shows how effective it was, I suppose.

Mr. Volpert: I believe it does, Justice Scalia.

It--

Justice Ginsburg: One side says it shows no problem, the other side it shows how effective it is--

[Laughter]

--but I'm wondering, Mr. Volpert, why you didn't test for the most frequently used controlled substance... well, it's not a controlled substance--

--Steroids.

--alcohol.

Steroids.

It's alcohol, I think.

Don't kids drink beer and wine?

Mr. Volpert: --I will focus on the question about alcohol.

There's no direct evidence in the record as to why alcohol was not tested.

I would assume, if I may infer from the record, that the district believed that they were better equipped to detect the use of alcohol because of alcohol being on one's breath, and perhaps the effect on gait, which is fundamentally different from the use of drugs.

Justice Scalia: Well, maybe it was because they did not think that the drinking of alcohol, which kids have been doing for a long time, produced the kind of classroom disruption that harder drugs do.

Mr. Volpert: There is a comment, Justice Scalia, from Principal Aultman to that effect, that alcohol has been around for a long time.

I think he was probably referring to that.

Justice Stevens: That makes alcohol use by high school students okay, that it's been around a long time?

Mr. Volpert: No, I think--

Justice Stevens: I don't understand that one.

Mr. Volpert: --No, I'm not... no one's saying it's okay, Justice Stevens, but I think the school board made a determination that these drugs were what were causing the problem, and it's one of the types of decisions the Court--

Justice Stevens: Do these tests pick up steroids, which I suppose athletes might be more inclined to take?

Mr. Volpert: --It did not test for steroids.

Justice Stevens: The one athlete related drug that might be involved.

Mr. Volpert: There's no evidence in the record as to why that is, although I understand that steroid testing is very expensive, and the district may have made the determination based on the cost.

Justice Souter: May I ask you a question which you may have answered, I just seem to be unclear on it.

If there were not at least generalized suspicion that there was a drug problem in schools, do you take the position that the consent form would be sufficient to authorize the random athletic... systematically random athletic testing that you were doing here?

Mr. Volpert: Justice Souter, we have never argued or briefed that issue.

Justice Souter: So your position is... here is that both, i.e., the behavioral evidence and the consent forms, are sufficient, and that's as far as your argument goes?

Mr. Volpert: No.

Our argument here is that the behavior, which disrupted the classroom severely, and the threat to student athletes were sufficient to jeopardize compelling governmental interests of the school.

Justice Souter: Oh, even without the consent from?

Mr. Volpert: Even without the consent form, yes.

We believe that this policy is constitutional notwithstanding the consent form.

Justice O'Connor: But I thought you answered my question about the consent form to the effect that that alone would provide the basis for random testing, if you didn't have more.

That's what you said.

Do you want to retract that now?

Mr. Volpert: I didn't understand that to be your question, Justice O'Connor.

Justice O'Connor: So what is your answer?

Mr. Volpert: Could I ask you to restate the question?

Justice O'Connor: Suppose all you had was a consent form, validly obtained, knowingly, willingly given by the student and the student's parents, is that enough for that student to be randomly tested for drugs, using the test in this case?

Mr. Volpert: We have never taken the position that it was, because consent was not given in this case.

Justice O'Connor: Well, what is your position today?

Mr. Volpert: I'm sorry, I do not have a position on that.

That's never been briefed, and I don't have a position on that.

Unknown Speaker: Thank you, Mr. Volpert.

Mr. Seamon, we'll hear from you.

Argument of Richard H. Seamon

Mr. Seamon: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to begin by addressing a question that arose earlier.

The question was, if there was so much evidence of drug use in Vernonia, why wasn't there enough individualized suspicion to make individualized suspicion-based testing effective?

That question is plainly relevant under the balancing approach this Court applied in Skinner and Von Raab, because even though the Court declined to impose a least intrusive means requirement in its analysis, it is plain that alternatives to suspicionless testing are relevant to decide whether suspicionless testing is actually necessary to further the governmental interest that is being asserted, and I think that the limitations of individualized suspicion testing are illustrated well on the facts of this case.

Some of the evidence concerned drug use by individual students, and would have permitted individualized suspicion-based testing of those students... for example, the students from whom drug paraphernalia was confiscated, the students who were seen smoking marijuana in the coffee shop across the street from the school, the students who were arrested for using intoxicants at a party during the school day.

But this was not the only relevant evidence in the record that there was a drug problem in Vernonia.

The school district witnessed a two to threefold increase in disciplinary problems over the course of a couple of years.

At the same time, it witnessed the rise of an apparent drug culture.

Students boasting about their use of drugs, whether true or false, was certainly relevant to the officials' assessment of whether a drug problem existed, and finally, the organization of groups with names like The Drug Cartel.

Now, maybe the fact that a student belongs to a group called The Drug Cartel does not provide individualized reasonable suspicion for testing that individual.

That would be a debatable point.

But the fact that such a group springs into existence at the same time that there is a two to threefold increase in disciplinary problems, and teachers for the first time begin hearing students boasting about drug use and writing about it in essays that they hand in to be graded clearly is relevant in assessing the existence of a drug problem.

Justice Stevens: Mr. Seamon, do you think the evidence would have supported a random program not limited to athletes, but for the entire student body?

Mr. Seamon: I don't think that it would have supported a program for the entire student body.

I think it's... the fact that the program in this case was limited to student athletes was relevant, and supports the reasonableness of the program in several ways.

Perhaps first and foremost is the fact that interscholastic sports is a voluntary activity.

The student can avoid testing simply by deciding not to engage--

Justice Kennedy: It's a little bit like saying going to graduation is a voluntary activity, as far as I'm concerned.

A lot of students consider that a very important part of their education.

I'm not sure why you should draw your answer, and draw the line you're proposing exactly that way.

If there's a school-wide problem, what's wrong with school-wide testing?

It certainly seems... in one sense, the required courses are more important than the voluntary courses.

Mr. Seamon: --The required courses are of course more important, in our view, than extracurricular activities.

One of... and the reason that we find it significant that this testing was limited to students who participated in an extracurricular activity is that it gave the student the ability to avoid testing at the same time he or she was not denied access to the required curriculum that he or she needed to get a diploma.

Justice Scalia: So I guess a school where it has a problem with drug use where it isn't the athletes who seem to be leading the thing, they're just sort of out of luck.

You're a lucky school if it's the athletes who are the potheads, but if you're in another school there's really nothing you can do about it.

Mr. Seamon: We would not draw a line--

Justice Scalia: Very strange.

Mr. Seamon: --to limit drug testing to student athletes.

We think that testing of athletes is particularly defensible because... for some of the reasons--

Justice Scalia: That wasn't the question you were asked.

The question you were asked is not whether this one is particularly defensible, but where the other one is defensible, and you said no.

Mr. Seamon: --I'm sorry if I misstated our position.

It is not our position that drug testing of all students would be invalid in all circumstances.

If a school district had a severe enough drug problem that it reasonably concluded that that was the only way in which the drug problem could be effectively addressed, then such a program may well be permissible, but it would depend to a large extent on the consequences of testing positive.

Chief Justice Rehnquist: Didn't the district here have some fear of injury to the athletes as a result of drug use?

Mr. Seamon: Yes, that's right.

It had a reasonable fear of that, and that's why testing of athletes was particularly defensible, because their engaging in that activity and playing sports posed a risk of physical injury both to themselves--

Justice O'Connor: Well, Mr. Seamon, you started, I thought, to tell us why the school district couldn't rely on individualized reasonable suspicion, but I never heard you answer that question that you posed.

Why couldn't it?

Mr. Seamon: --Well, I... let me complete the answer to that question.

I began by making the point that much of the evidence that the school officials could reasonably credit as pointing to the existence of a drug problem was not necessarily focused on individual students, and wouldn't necessarily--

Justice O'Connor: But some was.

They could have tried their program that way.

Mr. Seamon: --And some was.

Justice O'Connor: Could the school district have relied on the consent forms for... as to those students who had validly executed them?

Mr. Seamon: Yes, to the extent that valid consent was given under this Court's cases.

Justice O'Connor: That doesn't trouble like your predecessor.

Mr. Seamon: No.

Valid consent is a basis for a search, and that's always been true.

Justice Scalia: Even though it was coerced?

I mean, even though they said you can't play on the varsity team unless you give the consent?

Mr. Seamon: This is--

Justice Scalia: I mean, it seems to me the consent form is bound in with the whole program.

I agree, if you just ask voluntarily, whoever's willing to undergo testing, no penalty if you don't... is that the kind of consent form you're talking about, or is the consent form in this case?

The consent form in this case was... well, would have been coerced.

Mr. Seamon: --Well, this is the difficult question.

This is, I suppose, why petitioner isn't relying on the consent forms.

In many... there is at least a plausible argument to the extent that you're denying a student a benefit the consent is coerced, and--

Justice Souter: Well, do you rely on the forms because athletics are in effect an incidental, voluntary activity?

Mr. Seamon: --We don't rely on the forms.

We really rely on the voluntary nature, the extracurricular nature of the activity that triggered the testing.

Justice Souter: All right.

Let me give you a different example.

Maybe it won't make a difference, but let me give it to you.

What if the kids at the National Honor Society dance had been found smoking pot, and the school adopted a policy that no one could be inducted into the National Honor Society without signing one of these consent forms, would that consent would be sufficiently uncoerced to be valid, and would that then justify testing of those who had consented?

Mr. Seamon: I'm not sure of the answer to that.

I suspect that, you know--

Justice Souter: Isn't the reason that you're concerned about it that you know perfectly well that if these kids want to get into a good college and they're not in the Honor Society or the record says, couldn't join the Honor Society because they wouldn't consent to drug testing, that they're going to be at a tremendous disadvantage in college application?

Isn't that the problem?

Mr. Seamon: --That's right, and--

Justice Souter: Why isn't there a like problem for the student athletes?

Their athletic activities are taken into consideration when they apply to colleges.

Mr. Seamon: --That's right, and that's why we rely on the extracurricular, voluntary nature of the activity than the concept of consenting to it or not, because questions of consent can become very difficult, depending on the value of the benefit that you're conditioning the consent on.

I want to--

Justice Ginsburg: Mr. Seamon, you answer that you have some reservations about testing everyone based on what this Court did in Von Raab.

There was a whole category of employees.

The case was remanded, was it not?

Mr. Seamon: --Yes, that's right.

Justice Ginsburg: Do you know what was the follow-up on remand with respect to all those other people, the accountants, the animal caretakers?

Mr. Seamon: Yes.

The district court on remand upheld the testing program with respect to the categories of employees who had access to sensitive classified information, and it noted that some of the categories that this Court expressed concern about, including animal caretakers, were not subject to the testing--

Justice Kennedy: Do you take the position that the relation between schools and their students is the same as between the Government and its employees?

Mr. Seamon: --No, we do not.

It is a different one, and it is important, especially, I believe, in assessing the impact of individualized suspicion-based testing in this context.

One of the problems, to finish my answer to Justice O'Connor, with individualized suspicion-based testing is that in a sense you get both false positives and false negatives.

I mean, there may be one student who uses drugs, but simply sits quietly in the back of the classroom and gets straight D's, and that student goes unnoticed.

Argument of Thomas M. Christ

Chief Justice Rehnquist: Thank you, Mr. Seamon.

Mr. Christ, we'll hear from you.

Am I pronouncing your name correctly?

Mr. Christ: Mr. Chief Justice, no, you're not.

It's Mr. Christ.

Chief Justice Rehnquist: Christ, Mr. Christ.

Mr. Christ: Thank you, and may it please the Court:

My opponents have just offered you two justifications for this highly intrusive search.

One is maintaining order in the classroom, and the other is promoting athletic safety, and I'd like to address each in turn.

First, order in the classroom.

If that's the goal, then it seems to me that this test is completely unnecessary.

You don't need urine testing to detect, punish, and by punishing deter disorderly behavior.

Disorderly behavior is obvious.

Disruptive students give themselves away.

Urine testing isn't going to aid in detecting.

Now, it may help in explaining why disorderly students are that way, but you don't need to know that in order to detect this problem and deter it through appropriate punishment.

Justice Ginsburg: If you have an unruly student, the teacher reports a student as unruly, on your individual testing, or individual suspicion basis, could every unruly student be then subject to urinalysis because the teacher says, I've got a discipline problem here, maybe it's drugs, let's test her?

Mr. Christ: It depends on the misbehavior, but I think if there is sufficiently disruptive behavior to justify their conclusion now that these misbehaving students were all on drugs, that would perhaps, under T.L.O., present individualized suspicion to test that student.

Justice Ginsburg: Mr. Christ, I'd like you to be as concrete as possible about this, because I was troubled by your, well, you can... the answer is individual testing.

Isn't that fraught with the risk that the teacher is going to pick out the kid he doesn't like, and those are the people that will be subject to the discipline, as opposed to the random selection?

There's something even about that.

Mr. Christ: Well, the problem with the random selection is that you are subjecting every student, including those who are not disorderly, not misbehaving, to this intrusive degrading experience, and that's the problem, on the one side, to be balanced against this risk that maybe the school district would pick out certain students.

It would not apply the individualized suspicion standard appropriately, and I have no reason--

Justice Scalia: Well, I mean, suspicion, unless you mean by suspicion probable cause, I mean, a high degree of proof, you're always going to get people who are utterly innocent, and I frankly would find it much more shameful to be picked out and sent to have a drug test because I'm suspected of using drugs than I would to be part of a general school population who just repeatedly do this.

Indeed, wouldn't there be a right to individualized hearings before one is, in effect, accused of having used drugs?

Could you do that without giving some individual hearing to the student?

And all of a sudden we're into a big deal of a due process case.

Mr. Christ: --No, I don't think... there wasn't in T.L.O. a requirement of a hearing before the school officials looked into the student's purse.

They had reasonable suspicion to suspect that the student was violating school rules, and so they conducted a search.

Justice Scalia: And you don't think it was a lawsuit if they didn't have reasonable suspicion?

I mean, I can just imagine a parent whose child has been sent down to have drug testing because the child was "suspected" of having used drugs, and the parent saying, my child never used drugs, not... never suspected at all.

It's a lawsuit, isn't it?

Mr. Christ: Well, I think the intrusion here is less if you pick out the few students who are disbehaving and disorderly, and subject them to testing as opposed to take every student, including those who are well-behaved and simply want to play school sports--

Justice Scalia: I see, you're not suspected of using drugs.

Just bad kids can be drug-tested, misbehaving students.

There's no suspicion of drugs involved at all.

You're just... you're a bad actor.

Mr. Christ: --Well, my first point is, if you want to deter disorderly conduct, you just see it and you punish it appropriately.

You don't need to go beyond that and say, are drugs the cause, in order to have any deterrent effect.

Justice Scalia: You think it's better to be selected as one of the few in the school to be drug-tested on the basis of a suspicion, than to be part of the general... what is the intrusion that is involved?

Mr. Christ: Well, if you are disrupting class, then you have justified, perhaps, school officials in taking you out and subjecting you to a test.

That is less intrusive than to take everybody who is well-behaved and subjecting all of them to the test.

Justice Kennedy: Do you think--

Justice O'Connor: --The random test, though, didn't subject everyone.

I thought it was administered to a few on a random basis.

It wasn't everyone in the school, and it wasn't every student athlete, was it?

Mr. Christ: No, it is every student athlete, every athlete who tries out for sports.

Justice O'Connor: Well, the initial test.

Mr. Christ: Initial test--

Justice O'Connor: Yes, but I'm talking about the random testing.

Mr. Christ: --Thereafter they're testing 10 percent of each student each week, so that during the course of the season you're eventually probably going to get to everybody.

Justice Kennedy: Do you think the district could reasonably conclude that the dangers of an individualized suspicion requirement go beyond the danger that the teacher might single out the unpopular student, but that it changes the whole relation between the teacher and the student?

One of the big complaints of teachers is that they're being turned into policemen.

You want this Court to turn them into policemen, I take it.

Mr. Christ: I don't want to turn them into policemen, Your Honor, but there is... the relationship is, at times, adversarial.

As you pointed out in T.L.O., they're there to educate but first they also have to maintain order and discipline, and students... teachers are disciplinarians in the first instance.

Justice Kennedy: But you want us to structure the law on drug testing for individualized suspicion, which it seems to me is a very significant step forward in assigning the responsibilities of this sort of very, very difficult and highly intrusive judgment to the teacher, whereas a random testing program eliminates that need altogether, and it seems to me the school district at least could make the plausible argument that this is a reasonable alternative for it to adopt.

Mr. Christ: Your Honor, I don't want to misstate my position here.

I am not contending for urine testing on individualized suspicion.

I'm not conceding that that would be constitutional.

I am submitting to you that that would be less intrusive than the present program of random testing.

Justice Kennedy: Well, it's rather hard for us to write an opinion to say that there's a less intrusive alternative but that that's unconstitutional, too.

Mr. Christ: I think you should find that any urine testing is unconstitutional on the justifications that are given to you, but if they cannot prevent random testing of everyone, including my client, who is well-behaved and simply wants to play sports, then I'm suggesting that short of that you should have testing for those who are not well-behaved, and who are disorderly, and who are disrupting classes.

Then they should be the ones... if the school district needs to find out why these students are misbehaving, and I don't think they need to know that in order to punish the behavior and thus deter it, but if they do need to know that, then they should subject the disorderly students to urine testing, not every--

Chief Justice Rehnquist: But surely the drug problem goes deeper than just... if it exists, and the courts below found it did, goes deeper than just misbehavior in class, doesn't it?

I mean, it has other deleterious consequences.

Mr. Christ: --Sure.

Drugs are harmful to the users.

There are other deleterious consequences to drug use, but the justification that the school district has put forth throughout these proceedings is that we have students who are disorderly, and we need to find an effective means of deterring that behavior.

Justice O'Connor: Well, what if the justification offered was that there's an increased risk of physical harm, health risks to athletes who are using drugs, and as part of our policy in the school to weed out those with heart problems, or those with other special risks in athletic programs, we're going to require this kind of testing for health purposes.

Now, would that be sufficient to justify this?

Mr. Christ: No, we don't believe that's sufficient.

Justice O'Connor: Well, why not?

It would be just like testing for a hernia, or a heart problem, or asthma, or whatever else might be the case.

Mr. Christ: Well, I don't know that the school district can compel anyone to submit to an examination for those purposes, but under the safety standard that you set in Skinner and Von Raab--

Justice O'Connor: Surely you would not take the position that a school can't protect itself from risk of injury to its student athletes by requiring physical exams for all those problems.

Mr. Christ: --I'm not contending that the school district does not--

Justice O'Connor: Is that your position, that the school district can't do that for a student athlete?

Mr. Christ: --That's not my position.

I don't need to take that here.

I am contending that the risk of injury from a student using drugs in sports, in athletics, is not sufficiently compelling to justify so intrusive an invasion of privacy as urine testing.

Chief Justice Rehnquist: You agree, don't you... and surely it's done all over the country for every high school sport... you've got to take a physical exam before you can participate?

Mr. Christ: True, and my client took a physical exam here, too, which was required here, but the circumstances of that examination indicate the privacy that attaches to the passing of urine.

He took the examination in the privacy of his doctor's office.

Chief Justice Rehnquist: Well, how much privacy is there in a boy's locker room with a bunch of urinals lined up against the wall, guys walking naked from the shower to the lockers?

Mr. Christ: The point... it's substantially different.

There's a substantial difference between using a public facility and being singled out and compelled to produce urine while somebody monitors and observes the production of the sample, and then surrender the sample to the Government so it can be chemically analyzed for whatever secrets are contained therein.

Justice O'Connor: Well, would it make any difference to you if the test... if the student had an option of going to a private clinic, or private physician to have the test done?

Mr. Christ: It would make--

Justice O'Connor: Would that save it, in your view?

Mr. Christ: --No, it would not save it, but it would make it less intrusive, and that was one of the procedural safeguards that you identified in Skinner and Von Raab as necessary to reduce the intrusiveness of urine testing to a constitutional permissible level.

Independent monitors, independent test sites, no direct observation of the sample being produced, advance notice--

Justice O'Connor: But you say if all those things were done, it wouldn't make any difference.

You say that's better, but that's not enough.

Mr. Christ: --Correct.

Justice O'Connor: Well, what is enough?

Mr. Christ: I don't think anything is enough to justify urine testing of students for the purposes that have been advanced by my opponents.

Justice Souter: Do you have a fallback position?

I mean, is it all or nothing here?

[Laughter]

Mr. Christ: Well, that's the position I'm taking is, if they cannot--

Justice Souter: I know that's the position you have taken, but I mean it seriously.

Do you have a fallback position?

Mr. Christ: --My fallback position is, if they are justified in urine testing, in implementing a program, they are not justified in implementing this program because it lacks the procedural safeguards you identified in Skinner and Von Raab.

Justice Ginsburg: Then what is the program?

Can you be concrete about the program that you think would be appropriate?

First, could the school have the physical exam on the school's premises?

You distinguished the physical exam because you said it's in the privacy of the student's own physician's office, but suppose the school... this is a wealthy district, and said, we're going to do it all in school.

Would that be all right?

Physical exam includes everything including urinalysis.

Mr. Christ: You identified... let me respond this way.

You've identified these procedures in Skinner and Von Raab.

I do not read those opinions to say that each and every one of those is essential, and I do not read that opinion to say you give greater weight to one or the other.

At the same time, I don't read those opinions to say that a program completely lacking in all of them would pass muster, which is what we have here, so I can't say that if they have no direct observation but they still require disclosure of medications, and they don't use independent monitors, that that would pass muster.

Justice Scalia: Well, you have some factors here that didn't exist there, and that is the... this is an athletic program.

It's not that you have to leave school entirely, it's just that you don't play athletics.

You didn't have in Von Raab the factor that these are minors in a tutelary context.

Surely that's a factor that cuts in favor of being able to do it.

Mr. Christ: Those are two factors that do reduce the intrusiveness, but as... let me speak to both of them, first the fact that this is voluntary.

You don't have to play athletics.

That's true, but you have to appreciate how important athletics is to the school experience, especially in this school district.

The testimony on that is quite clear.

Justice Scalia: You painted a very depressing picture of this town, as I recall.

You said there's virtually nothing else to do except go to the intramural athletic games.

Mr. Christ: Actually, that was my opponent who painted that picture, but--

Justice Scalia: Oh, I see.

[Laughter]

I know somebody did.

I certainly didn't want to visit the place.

Mr. Christ: --That was the testimony they presented, and I'm just illustrating the ramifications of that.

To say that this is simply athletics and you don't have to play sports doesn't quite answer the question.

That... it still... it may be voluntary, but it's an important part of the school experience, and to compel a student to give that up in order to protect themselves from this search just simply isn't justified.

Now, as to your second point that we're talking here about students and not adults, there should not be a different standard for students than adults.

A different standard might be justified if the Government... if you accept the proposition that the Government is substantially less interested in preventing drug-related injuries to students than adults, or if you accept the proposition that students have substantially less privacy interest, that urine testing is for them not so severe an invasion of privacy as it is for adults.

Justice Scalia: Haven't we allowed schools to impose mild corporal punishment?

Mr. Christ: I don't know.

Justice Scalia: Yes, I think we have, and why is that?

Because the school has at least some portion of the authority that the parent has when the child goes to school.

It seems to me you just cannot assume that children in that kind of a context have all of the rights that an emancipated adult has in a context such as Von Raab.

Mr. Christ: I am not contending the student's rights of privacy are coextensive with an adult's, and I think you've held otherwise in T.L.O., but I'm saying when you come to something so private and personal as the passing of urine, that their rights certainly extend that far.

Justice Stevens: Let me ask you a question on that one, if I might.

What if the school had a physical examination requirement for every student at the beginning of the school year that included this particular urine test, would that be constitutional?

Mr. Christ: No.

Justice Stevens: It would not?

Mr. Christ: It would not, we don't believe, if they required just as a condition of going to school that they take a urine test.

Justice Stevens: How about a physical exam with everything except this particular test, just to be sure they're healthy, and for the good of the kids, to find out if there was any problem the school ought to be aware of?

Can they take blood?

Blood is okay, but urine's bad?

Mr. Christ: Well, you said in Skinner that blood tests, compelled removal of blood as opposed to a urine test, is substantially less intrusive, but I don't think that they would be justified in compelling a student to produce blood, simply--

Justice Kennedy: Does that rest on your assumption that there's no Nation-wide drug problem in the schools?

Mr. Christ: --I'm not assuming that there's no Nation-wide drug problem in the--

Justice Kennedy: Suppose that we assume that there is.

Does that change your answer?

Mr. Christ: --No.

I think you need to judge each drug-testing program byu the problem it's intended to solve, district by district, school by school.

Justice Kennedy: Thirty percent users in a rural high school, would that be sufficient to sustain a test where at the beginning of the year everybody takes a physical exam and there's a testing for drugs?

Mr. Christ: No, because my first contention is that you don't need the drug test in order to solve the problem of disorders... disorderly behavior in the schools, so whatever--

Justice Kennedy: I'm talking about solving the problem of drugs in the schools.

Mr. Christ: --We still don't think that it would be justified, Your Honor.

Justice Breyer: Are you saying actually you can't have a medical test?

You couldn't... I mean, a school district couldn't say we want to know how the students, whether they're nourished properly, whether they're... whether they have disease, how they're going... and so what we want to do, we'll give you the nurse or the doctor, but you couldn't require constitutionally a medical test, physical exams?

Can't they require physical exams for athletes?

Mr. Christ: They do require a physical exam.

Justice Breyer: I mean, so... couldn't... are you saying they couldn't require physical exams for students to come to school?

They want to know how the health of a student is.

Mr. Christ: I'm not saying that.

I don't think that I need to contend that here.

Justice Breyer: All right.

Well then, the problem, of course, for people is, if they can require the physical exams for the health, and I guess you could require medical... metal detectors to keep guns out of schools, a lot of things you can require, what's different about this?

Mr. Christ: Because this is so highly intrusive.

Justice Breyer: Medical exams all involve urinalyses.

Mr. Christ: That's--

Justice Breyer: I've probably had hundreds of them in my life, and so have you, and you know, what's the special thing here?

Mr. Christ: --The medical exam you're talking about is being conducted in private by the student's doctor.

It is not being conducted--

Justice Breyer: Well, people urinate, you know, in men's rooms all over the country.

It's not necessarily... and I don't mean to be... trivialize it, but it isn't really a tremendously private thing, is it?

Mr. Christ: --I think it is private when it is being compelled by the Government, and the Government is there watching and observing and collecting specimens.

Justice Breyer: All right.

What I'm trying to get you to do is to pinpoint precisely what it is that's the intrusion of the privacy interest.

That's what I'm trying--

Mr. Christ: It's not--

Justice Breyer: --That's what I'm aiming at.

Mr. Christ: --It's not the mere act.

We all urinate.

That's... has to be conceded.

[Laughter]

In fact, I might do so here, if--

[Laughter]

Justice Breyer: A serious point, which is difficult.

I think it's a very difficult thing to do, because I, like you, and a lot of other people, have some kind of instinct that there is something private going on here, but to try to pinpoint it precisely is difficult, and it's because it is difficult that I'm asking you the question, to help on this, to the extent you can, to try to pinpoint just what it is about this test that is private, and therefore offends you and many others.

Mr. Christ: I appreciate the help, and what I think is the point here is that this is being compelled by the Government, they're watching you do it, they're taking your urine, and they're analyzing it to see what secrets therein, and at the same time they are compelling a student to come forward and disclose all their private medications, and that is highly intrusive and personal to most people.

Justice Breyer: That's what I wondered, too.

Is there... is that in this case?

That is, is there in this case any indication that people who had medications that they didn't want disclosed have to proceed with the normal test, or is there... could they have their own doctor do it and give the result, or... in other words, how much is that in this case, that problem?

Mr. Christ: The disclosure of private medications, both prescription and nonprescription, is compelled by the policy statement itself, and is also compelled by the... Exhibit 109 is the urine sample specimen form.

You have to fill that out at the time you--

Justice Ginsburg: But Mr. Christ, you made a grand-scale attack on this.

This is a child whose parents did not wish the form to be signed.

The child didn't want it to be signed.

You never got to any refined question of, well, I'll sign it but I won't disclose what drugs I'm taking, what prescription drugs I'm taking, so that's... whether that feature of the program is infirm is not part of this case, is it?

Mr. Christ: --It's part of the case.

All of the testing protocol is part of the case.

We think that it is intrusive for all those reasons as well as the fact that it doesn't serve a compelling governmental interest.

Justice Ginsburg: Your case is not one to modify this program.

Your case is one that, I'm not required to submit to it, period--

Mr. Christ: Correct, but--

Justice Ginsburg: --not that it can be tailored in some way that it would be satisfactory.

Mr. Christ: --But as Justice Souter indicated, that... my fallback position is that if you say drug testing is okay, then I at least want to stop this drug test because it is being performed in an especially intrusive fashion.

Chief Justice Rehnquist: Mr. Christ, supposing that instead of feeling that drugs were the problem in the high school, the board had felt that it was alcohol that was a problem, and that they had the same reason to attribute it to athletes as the board here did to... drugs to athletes, and so... but they don't set up a urine testing program, they set up a breathalyzer program under exactly the same circumstances here.

Is that... I mean, what I'm trying to find out is, is it the fact that it's the urine factor that makes this invalid, or is it the factor that the Government administers a test to some individual?

Is a breathalyzer test okay?

Mr. Christ: No, we think not, but the problem here is twofold.

One, the purposes for which they're testing are not compelling enough: maintaining order in the classroom and preventing... and preserving athletic safety, but in addition to that--

Chief Justice Rehnquist: Well, isn't there something broader, the idea that drug use has a lot more... brings with it a lot more problems than that, just to try to ferret out drug use?

Mr. Christ: --Well, Your Honor, drugs do have a problem, and no one is denying that, and they're a problem for the young and the old, and if simply the problem of drugs on the user is sufficient to justify the Government in compelling urine tests, then we should all be subjected to urine tests.

Chief Justice Rehnquist: Well, but school performance on tests, not necessarily disruptive performance, but it just affects a student in many, many ways, doesn't it?

Mr. Christ: That's true, it does affect them in many ways, and it's a tragedy if someone takes drugs, young or old, but it has not been... that has not been offered as justification by the school district for this drug test, and if you accept that as justification for drug testing students, then I think that you have arrived very nearly at universal drug testing, because you could not confine your ruling to the school setting.

Drugs present all those problems to adults--

Chief Justice Rehnquist: Yes, but--

Mr. Christ: --as to students.

Chief Justice Rehnquist: --surely the school... the school has an interest in seeing students learn and perform in a way that the Government has no interest in seeing citizens in general.

I mean, they are not... the Government is not the tutor of its citizens generally.

Justice Scalia: Students are kids.

You have no doubt that the parents can do this if they want to, don't you?

Mr. Christ: The parents may have that right.

Justice Scalia: Well, of course.

Mr. Christ: But the schools don't.

Justice Scalia: You're dealing with people who are subject to others' tutelage, and the question here is to what extent some of that authority and responsibility can be exercised by the school districts even when the parent, particularly the parent in this case, doesn't want it to be exercised.

There may be parents who don't like corporal punishment in schools, for example, but we've indicated that we... it existed at common law, and we won't use the Eighth Amendment to say you can't have it, so you either accept it, or you don't go to public school, and the question here is whether this is another instance like that.

But you're dealing with children.

You're not dealing with adults who have a totally different set of rights.

The question is to what extent the school has some of the authority of the parents in this regard.

Mr. Christ: I don't think they have sufficient authority to justify this intrusion on privacy, and some of what we have been referring to are children, are 18 years of age.

Justice Souter: May I go back to the--

Mr. Christ: They're--

Justice Souter: --I'm sorry.

Mr. Christ: --I'd just point out, they're old enough to vote and serve on juries.

Chief Justice Rehnquist: Well, your client's in seventh grade?

Mr. Christ: My client was in seventh grade at the time of this drug test.

He is a sophomore now.

He will be 18--

Justice Ginsburg: And it's not a class action, so that's the case that's before us.

Mr. Christ: --It's not, but he's seeking an injunction against having to submit to this test for the balance of his high school career--

Justice Souter: May I take you back to the question--

Mr. Christ: --which will take him to age 17.

Justice Souter: --I seem bent on interrupting you.

I'm sorry.

May I go back to the question of intrusiveness again?

You answered the Chief Justice that a breathalyzer test, if alcohol had been the drug of concern here, that a breathalyzer test would also have been unconstitutional, other things being equal.

Mr. Christ: Well, as I understood, a random breathalyzer test.

Justice Souter: That's right.

Mr. Christ: Yes.

Justice Souter: Other things being equal, administered the same way, just do it by breath.

Mr. Christ: Correct.

Justice Souter: And you said that would be unconstitutional.

Mr. Christ: Yes.

Justice Souter: I take it, then, that the intrusive feature, or features, which are of concern to you in the urine test in fact are not the quasi-exposure of having to produce the sample with someone standing behind you, because that doesn't occur in the breath test, so I take it the reasons that you find the intrusiveness to be unreasonable is that you are disclosing the contents of something... chemicals in your urine, chemicals in your breath... and you are being forced as a protective measure in appropriate cases to disclose any drugs you may be taking that might affect the test.

Those are the two points of intrusiveness that are crucial for you, is that correct?

Mr. Christ: Correct, and I would add that you're doing all of that without ever having given suspicion to suspect that you've done anything wrong.

Justice Souter: Right.

I realize the question of justification is there, too, but the features of intrusiveness which are crucial to you are the disclosures of knowledge which in effect can be gained either from your admission of, or your disclosure of other drug use and the testing of the chemicals.

Those are the two features.

Mr. Christ: Correct.

Justice Souter: Yes.

Justice O'Connor: Now, presumably the disclosure of what other prescription drugs you might be taking could be easily cured.

These samples go to a testing lab, and the student could fill out a form saying what they are, put it in a sealed envelope, and have it transmitted to the testing, the independent testing, without ever disclosing to the school district at all what private prescription medication is in use.

Mr. Christ: It must be possible, because it was in Skinner and Von Raab, although I do not know why the school district here did not, after Skinner and Von Raab, adopt the same procedures.

Maybe there was something--

Justice O'Connor: Well, if it did, then that would go a long way towards solving your objection, I gather.

Mr. Christ: --Not--

Justice O'Connor: And make this a more reasonable program.

Mr. Christ: --It would not go far enough.

Justice Kennedy: On this record, were the results disclosed to the school officials?

Mr. Christ: Pardon me?

Justice Kennedy: On this record, in this case--

Mr. Christ: Yes.

The school--

Justice Kennedy: --And there's no particular guarantees of confidentiality?

Mr. Christ: --The disclosure is made to the school officials who are conducting the test.

They aid the student in filling out the form--

Justice Kennedy: I see.

Mr. Christ: --at the time, and so when you disclose your medication, you are disclosing to the school officials.

Chief Justice Rehnquist: Thank you, Mr. Christ.

Mr. Christ: Thank you very much.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Madsen v. Women's Health Center, Inc. - Oral Argument

Fri, 09 Jan 2009 14:49:49 +0000

Case:

Madsen v. Women's Health Center, Inc.

Media File:

93-880_19940428-argument.mp3

Related Transcript:

1993_93_880_argument.xml

Transcript:

Argument of Mathew D. Staver

Chief Justice Rehnquist: We'll hear argument now in Number 93-880, Judy Madsen v. Womens Health Care Center.

Mr. Stavers.

Mr. Staver: Mr. Chief Justice and may it please the Court:

Neither Judy Madsen, Ed Martin, nor Shirley Hobbs surrender their constitutional rights to free speech when they enter the speech free zone surrounding the Aware Clinic.

This case is about the right to peacefully display a sign and distribute literature in a traditional public forum.

Petitioners do not seek to trespass or blockade, nor are those portions of the injunction challenged here today.

In a nonpublic forum, this Court noted that one need not ponder the contents of a pamphlet or leaflet in order to mechanically take it from someone's hand.

Despite this Court's holding, the injunction totally bans literature distribution.

This Court recognized in Bray and in Casey that men and women of good conscience have common and respectable reasons for opposing abortion.

Indeed, abortion speech, or speech about abortion lies at the very core of the First Amendment.

If the First Amendment really means that speech must be uninhibited, robust, and wide open, the injunction must be dissolved.

The injunction violates petitioner's right to free speech because it is both viewpoint-based and a prior restraint, and because it lacks precision.

Viewpoint-based regulations like prior restraints come to this Court with a heavy presumption against their constitutional validity.

Unknown Speaker: Why do you say it's viewpoint-based, Mr. Staver?

Mr. Staver: Your Honor, Mr. Chief Justice, the reason why it's viewpoint-based is, Judy Madsen is restrained once she enters the 300-foot buffer zone.

When she enters that zone, she can only speak if the listener favorably reacts to that speech.

When she enters this zone, the injunction states that she can only speak if someone approaches her, extends a hand, or she can continue to speak only if they show a positive interest in what she has to say.

Also, the injunction is specifically addressing Judy Madsen's speech, which in context is more than activities which it restrains, but goes to speech.

Judy Madsen's speech at the abortion clinic is clearly on the issue of abortion.

Judy Madsen had not been to this clinic prior to the entry of the injunction.

Now when she enters the speech-free zones--

Unknown Speaker: Well, what about the application of the 36-foot limit that just says you have to stay out of that?

Do you take the position that's content-based, or viewpoint-based?

Mr. Staver: --Yes, Justice O'Connor, we do.

Unknown Speaker: Why?

Mr. Staver: The reason is, is that Judy Madsen cannot ever enter that zone, whereas other individuals expressing a contrary view can.

Unknown Speaker: Well, but on your theory, every injunction, whether it's in the labor context or any other context, would be viewpoint-based, and I don't think we've ever thought that injunctions of that type became content-based just because they were focused on a named individual, or a group of individuals.

Mr. Staver: Justice O'Connor, it wouldn't be viewpoint-based on every injunction.

This injunction, for example, in sections (1) and (2) would clearly not be viewpoint-based.

Those restrain activities which we don't challenge, but the injunction the way it was drafted and the way--

Unknown Speaker: No, but similarly, on the 36-foot zone, I don't see what makes that content-based, or a restriction that says you can't make noise within that zone, or something of that sort.

Mr. Staver: --Your Honor, on... Justice O'Connor, on page 24 of the respondent's brief, they specifically address the types of images that would be impermissible under this injunction.

They state that the images that would be impermissible are those that tend to traumatize.

Who makes that determination but the listener's reaction to speech, and the listener's reaction to speech could never be a content-neutral basis for regulating an individual's--

Unknown Speaker: I think you're really spreading this content-based and viewpoint thing all over the First Amendment area, rather than confining it.

I mean, it seems to me that answer is really a vagueness challenge, rather than a viewpoint-base challenge.

Mr. Staver: --Mr. Chief Justice, we raise the vagueness challenge as well as a viewpoint-base challenge, and I believe in this particular case, looking at Justice... or Judge McGregor, who drafted this injunction, he clearly stated that it applies to a belief, not specifically activities or individuals.

It applies to those beliefs that seem to be supportive of prolife.

Unknown Speaker: Is any part of your challenge here based on the fact that the injunction enjoined only those who wanted to protest against abortion and not those for it?

Mr. Staver: No, Mr. Chief Justice, that's not the basis of the challenge.

The basis is that in the internal workings of the injunction itself, it says that when someone enters this zone... for example, Judy Madsen... she can only speak if that individual listener shows a positive interest in what she has to say.

That listener, therefore, is empowered with ex parte adjunctive authority to censor her speech.

Unknown Speaker: That's the 300-foot zone, Mr. Staver, but what about the 36-foot zone, which is what Justice O'Connor was asking about.

Mr. Staver: Justice Scalia, the 36-foot zone would be the same way.

The way Judge McGregor intended and applied that 36--

Unknown Speaker: Well, she's not allowed within that zone at all.

Mr. Staver: --She can't ever go within that zone.

Unknown Speaker: Okay, so that's... you can't say that that's content-based because she can only go in if the people agree with her.

She can't go in at all.

Mr. Staver: No, she can't go in at all.

Unknown Speaker: So why is it content-based?

Mr. Staver: Because of... the only reason she can't go in has nothing to do with her activities but solely because of her belief.

Judge McGregor--

Unknown Speaker: In that extent, every injunction that... if you enjoin a labor union where there's been violence on the picket line you're only directing the injunction against somebody that has a particular point of view.

Doesn't it always... isn't it always content-based where it's an injunction?

Mr. Staver: --I believe it is, Justice Scalia.

Unknown Speaker: Okay, but why did you say no before?

Mr. Staver: No, well, in the sections (1) and (2)--

Unknown Speaker: It seems to me you say yes, and that's why we have to be especially careful with injunctions.

Mr. Staver: --Sections (3) through (9) would be the content-based.

Sections (1) and (2) I would say would not be, because that simply restrains an activity and not individual speech, which we are not challenging.

Unknown Speaker: May I ask you a question that seems to be the premise... one of the premises of your argument here about the 300-foot zone?

I understood you to say that within the 300-foot zone your clients could not distribute a leaflet, or offer them, and could not speak, but as I'm reading the reference, and I'm on A-9 of the petition appendix, under paragraph (5) on the 300-foot... covering the 300-foot zone, there's an injunction against physically approaching any person seeking the services of the clinic, but I don't see anything in there that prevents your clients from standing there with a picket sign or with leaflets ready for somebody who may want to take them, or even, so long as it doesn't otherwise offend the noise proscription, from saying, don't go in and get an abortion, or what-not.

It's just that they cannot go up to individuals and importune them on an individual basis, isn't that true?

Mr. Staver: That's true in part, Justice Souter, but outside of the 36-foot zone, for example, Judy Madsen could not raise her voice to reach somebody within the zone because that could be heard.

She could not display an image, for that could be seen.

Unknown Speaker: But that is... and I see what you're getting at there.

You've got a problem of images seen inside, noise penetrating the clinic, but there is in terms no limitation on speech which does not project images inside, or rise to a level that would be heard inside, within the 300-foot zone, isn't that true?

Mr. Staver: No, that's not true, Justice Souter.

Going on further, at the end of the injunction, it speaks about the invited contact portion.

It says that that portion--

Unknown Speaker: Where are you reading?

Where are you?

Mr. Staver: --I'm reading right now on the Joint Appendix, page 63, which is also reproduced in the petition for writ of cert, but it's on the last page of the injunction, just before the signature blocks.

It speaks about invited contact, and it begins with, ordered and adjudged.

Unknown Speaker: Is... just so I don't flip back and forth, is the same thing in the petition appendix?

Mr. Staver: Yes.

It's reproduced in the Petition for Writ of Certiorari, and it's also in the Joint Appendix.

Unknown Speaker: Okay.

Mr. Staver: In that section, Justice Souter, it speaks about invited contact, and that invited contact portion applies outside of the 36-foot zone.

It calls it the buffer zone.

Section (3) is the only place within the injunction that refers to a buffer zone, so the invited contact applies outside of the zone, which would be in that 300-foot zone.

It says that Judy Madsen would not be able to speak if someone didn't have a positive interest in what she had to say, nor could she distribute literature--

Unknown Speaker: Well, can you quote the text that you're relying on?

Mr. Staver: --Yes.

Unknown Speaker: What's the numbered paragraph in the injunction?

Mr. Staver: On the petition for writ of cert, Justice Souter, it is on page B-11.

Unknown Speaker: B-11?

Mr. Staver: At the bottom, and it begins with, ordered and adjudged.

It's the second ordered and adjudged on that page.

It says,

"At all times on all days, respondents will have the right of invited contact with persons protected hereby so long as it is outside the clinic buffer zone. "

which is the 36-foot zone.

""Invited contact" is defined as conduct by the person sought to be contacted which affirmatively indicates a desire to engage in conversation or to receive literature. "

"Such affirmative indication may include where the person sought to be contacted physically approaches a respondent or where such person extends his or her hand to receive literature, or speaks words indicating a positive interest in what the respondent is saying. "

It goes on down--

Unknown Speaker: Which implies that the respondent is saying something, and clearly implies that the respondent can be holding literature to distribute if somebody will take it, and that was the only point that I was trying to make.

Mr. Staver: --Justice Souter, the next sentence goes down and basically says such invited contact by a person protected hereby as it relates to conduct... contact at such person's residence is limited to conduct transmitted by the resident to a respondent at a distance from and at a time prior to the contact, so that--

Unknown Speaker: That's--

--Well, you may have a different issue--

Mr. Staver: --That's--

Unknown Speaker: --at the residence zone than you do at the 300-foot zone around the clinic, but there's nothing in there that indicates to me... in fact, the indication is to the contrary... that you cannot speak so long as you're not heard inside, or that you can't hold a placard or a leaflet.

Mr. Staver: --Justice Souter, I believe that when Judy Madsen enters this 36-foot zone, she--

Unknown Speaker: No, I'm talking about--

Mr. Staver: --I'm sorry, the--

Unknown Speaker: --the 300-foot zone.

Mr. Staver: --I'm sorry... the 300-foot zone.

She could not approach an individual if they didn't show some positive interest in her.

Unknown Speaker: That's entirely correct.

I mean, I understand that, but they can be within the 300-foot zone, speaking, I presume, at a normal voice level, holding their placard, and offering leaflets in case somebody is willing to come over and take one.

But they can't speak to anybody unless spoken to.

Mr. Staver: That's exactly right.

Prior consent equals prior--

Unknown Speaker: Well, they can't physically approach.

Mr. Staver: --They can't... but they couldn't physically approach if they're simply there with literature within the 300-foot zone.

Unknown Speaker: Mr. Staver, you've several times said, I believe, in connection with your responses.

Was there a time... did you ever seek from the trial judge a clarification or a modification?

I mean, you concede that the first injunction was valid.

Do you concede... because you said you don't challenge parts of this, that there was a violation of that first injunction, so some remedy was in order.

So my first question is, did you propose, when you got this injunction, any modifications to clarify the vague portions, and second, having conceded violation of the original injunction, what remedy would have been within the First Amendment limits?

Mr. Staver: Justice Ginsbug, let me answer both questions, and looking at the second one first, there is no conceded violation of the first injunction.

On page 375 of the Joint Appendix, respondents specifically stated that the contempt proceedings regarding any violations of the 1992 had nothing to do with Judy Madsen.

On page 436, the judge said, I understand that, and that's why Judy Madsen never testified.

But going to the first... the... question second, there were no requests specifically for modification on the 1993.

There was a request to dissolve the temporary restraining order back in 1991 and 1992.

That was denied.

Right after the entry of this '93 injunction was the only time that arrest occurred, and it wasn't petitioners.

It was those individuals penetrating the zone.

Unknown Speaker: Judy Madsen wasn't around, was she, at the time the amended injunction was entered?

Mr. Staver: Yes, she was, Justice Scalia.

She was not at the clinic.

Her name... the reason why she is here--

Unknown Speaker: I thought you said that she had come there... she had not been a party who had violated any prior injunction.

Mr. Staver: --That's correct, Justice Scalia.

Unknown Speaker: Had she been demonstrating after the first injunction was entered?

Mr. Staver: Not at the Aware Clinic, Justice Scalia.

In fact, her name appeared--

Unknown Speaker: Well then, how could she move for modification of the amended injunction if it was entered before she was even around the place?

Mr. Staver: --I don't believe that she really could, and I believe that it would have bee futile to do that, because Judge McGregor, a few days after this injunction was entered, made all of the statements that are before this court about how he interpreted this injunction.

He said it applied to anybody who seemed to be supportive of prolife.

If you had notice of the injunction, penetrated the zone, 36-foot zone, and were prolife, you were hauled off to jail.

Unknown Speaker: Is your position, then, that this injunction may be valid as to some people, but it isn't as to the particular complainants in this case?

Mr. Staver: Justice Ginsburg, it's certainly not valid as it relates to the three petitioners.

I don't believe--

Unknown Speaker: That's the limit of your argument, just these three petitioners, and for the rest, the injunction would stand?

If you're saying that Judy Madsen wasn't around, and the others weren't around, this injunction shouldn't have touched them, then is the relief you're seeking just to excise those three people from the terms of the injunction?

Mr. Staver: --No, Justice Ginsburg, it is not, because that would not give full relief to Judy Madsen, because she would be like Myrna Cheffer before the Eleventh Circuit Court of Appeals.

By simply penetrating the 36-foot zone, she would be considered to act in concert.

So we bring both an as-applied and a facial challenge to the overbreadth of how the judge... not pursuant to Rule 65, but how the judge crafted and applied the in-concert section.

He clearly tried to restrain a belief.

He clearly tries to require prior consent before even distributing pieces of literature, and prior consent would be--

Unknown Speaker: Let me--

Mr. Staver: --a prior restraint.

Unknown Speaker: --just to be sure I understand your position, are you arguing that as a matter of fact the evidence doesn't show that she was in concert with those, or are you arguing as a matter of law that if she didn't have anything to do with the protests until after the injunction was entered, she could not ever be held in concert?

Mr. Staver: I believe, Justice Stevens, as a matter of fact and law.

As a matter of fact, she was not in concert, and as a matter of law--

Unknown Speaker: And is there a finding of fact to the contrary?

Mr. Staver: --That she was in concert?

Unknown Speaker: Yes.

Mr. Staver: There is a finding of fact in the 1992 generically lumping all of the people together, but in the 1993 injunction, Justice Stevens, there's no finding--

Unknown Speaker: Well, let me just take it one step at a time, because it's hard to... this is a complicated case.

Is there, or is there not, a finding of fact that Judy Madsen acted in concert with the people who were enjoined?

Mr. Staver: --Not in the 1993 injunction.

It never--

Unknown Speaker: So that's not before us.

But then your legal position is that as a matter of law, if she came in after the injunction was entered, she could never be held in concert with the defendants?

Mr. Staver: --No.

She could be held in concert, Justice Stevens, if she were really actively aiding and abetting those named in the injunction, but that's not how the judge intended to apply the in-concert.

He commanded that a traffic sign be erected that simply said, warning, demonstrations and picketing in this area are limited by court order.

Unknown Speaker: Well, Judy Madsen has never been found guilty of anything, has she?

Mr. Staver: She has in the 1993, but not guilty as terms of criminal, no.

Unknown Speaker: She was cited for contempt?

Mr. Staver: No, Mr. Chief Justice, she was never cited for contempt, never arrested.

Unknown Speaker: Well then, what sanctions have been imposed on her by the trial court?

Mr. Staver: The 1993 injunction is the sanction of not being able to speak.

Unknown Speaker: Well, but has she been held to have violated that?

Mr. Staver: No, she has not.

Unknown Speaker: So we're not talking, then, about any sanction that was imposed on her.

You're saying that she is subject to sanctions for conduct that she shouldn't be.

Mr. Staver: Exactly right, Mr. Chief Justice.

Unknown Speaker: Well, in Broadrick v. Oklahoma, I think we used some language about an in-concert statement there, saying that we would cross that bridge when we came to it, in effect.

Mr. Staver: Mr. Chief Justice, I think this Court has come to it, because we don't have to speculate as to how far the in-concert section goes.

In fact, we have an unusual record where we see the judge's comments about how he applied it.

Secondly, we have the city police who were enforcing the injunction asking the judge to clarify, and that did come up, Justice Ginsburg, about the police enforcers wanting to clarify whether that was proper to arrest anybody who penetrated the zone.

The judge denied their motion to clarify, and that motion was opposed by the clinic.

Unknown Speaker: Mr. Staver, you said I believe in your brief that you were attacking this injunction on its face, and that's why the record didn't need to have in it any more than it already had, so when you speak of the internal operations of this, that seems to be inconsistent with your insistence that you didn't need to put very much in the record because you were attacking the injunction on its face, which seems to say that these restrictions never could be constitutional, no matter what the facts were.

Mr. Staver: Justice Ginsburg, we've argued to the Florida supreme court and also to this court that it's as applied to Judy Madsen factually and on its face as well, and in fact the same evidence that's before this Court was before the court of Florida, and the same arguments were made, and we asked them to de novo review this case.

The only pieces of testimony that were not before the Florida supreme court was that of Arick, Doyle, and Wymer, but respondents specifically stated that testimony had nothing to do with petitioners.

This particular court, as well as the Florida supreme court, had the testimony of April 12th, the record and the comments by Judge McGregor, and all the testimony that was before this particular court except for those other three testimonies, so the record evidence, looking at it de novo, does not show that the injunction was constitutionally applied properly to the three petitioners.

Unknown Speaker: Well, Mr. Staver, is everything you've said about petitioner Madsen equally true as to the other named petitioners?

None of them were found to have violated the earlier injunction?

None of them were active at this particular clinic demonstration?

Mr. Staver: That's correct, Justice O'Connor.

Let me explain that statement.

Petitioner--

Unknown Speaker: Your comments have all been directed to petitioner Madsen, but I want to be clear about the other named petitioners as well.

Mr. Staver: --Yes.

Petitioner Madsen nor Hobbs testified, because there was no allegations against them.

Petitioner Martin did testify.

There were two allegations.

However, there was never a finding of contempt.

There was only the motion... there was only the modification of the 1993 injunction.

The 1993 injunction never names any of petitioners or Rescue America by name.

In respect to petitioner Martin, the two allegations against him were, number 1) did he on one occasion stand in front of a doctor's car and move after the doctor honked the horn, and secondly, did he distribute a brochure that was published prior to the 1992 injunction after that injunction?

First, if he were there on this occasion, which he denies, that wouldn't constitute blocking.

Secondly, if he did distribute the brochure, which he denies, it doesn't incite anyone to illegal activity.

He specifically disclaimed blocking access to a clinic--

Unknown Speaker: What was the proceeding at which this testimony was taken?

Mr. Staver: --This was at a proceeding, Mr. Chief Justice, for a motion to contempt, and a motion to modify.

Unknown Speaker: At a motion to hold Martin in contempt?

Mr. Staver: Yes, Mr. Chief Justice, a motion to hold all the defendants named in the 1992 injunction in contempt.

Unknown Speaker: And Martin was one of them?

Mr. Staver: That's correct.

Unknown Speaker: Mr. Staver, I must say, you have me thoroughly confused.

You say you're challenging this injunction as applied to Judy Madsen, but you also say it has not yet been applied to Judy Madsen.

How can you challenge it as applied when it hasn't been applied?

I don't understand.

Mr. Staver: What I mean by that, Justice Scalia, is that she is presently restrained.

She has not been found in contempt, and so it's not applied in that particular sense.

Unknown Speaker: Well, you say she's restrained.

Maybe she's not.

Do we know that she's... how do we know that she's restrained?

You tell us that she's covered by the in-concert.

We don't know that she's covered by the in-concert until someone says, Judy Madsen, you're covered by the in-concert provision.

Mr. Staver: As far as the in-concert provision, we don't know that for a fact, but we don't have to speculate about the broad breadth of this in concert, because we know that 2 days after this injunction all these others were arrested for simply penetrating the zone, who were not in concert.

Unknown Speaker: Well, that seems to me not an as-applied-to-Judy-Madsen point.

That seems to me a facial challenge.

Mr. Staver: That's exactly right.

That's the section that we're bringing as a facial challenge.

Unknown Speaker: Your contention is you can't use the terms, in-concert?

I don't know how you can issue an injunction that's effective unless it applies not just to the people it's directed at but to anyone acting in concert with them.

Mr. Staver: Justice Scalia, let me explain.

The 336-foot zone.

The in-concert section is the only thing that would be facially, so if you excise Judy Madsen out, she would find herself in the same position as the Myrna Cheffer in the Eleventh Circuit court of appeals case, not being able to penetrate the zone.

But at any rate, this particular injunction certainly restrains her speech by restricting her access in this 300-foot zone.

Unknown Speaker: You're saying that "in concert" cannot be used in an injunction?

Mr. Staver: No, it certainly can, if it's used properly according to this Court's decision in Chase.

In Chase, this Court looked at how an in-concert application could be used, and that it should not be used to attempt to restrain the entire world who simply receives notice of an injunction, but it should be used if proof was shown that someone was actively in concert, aiding and abetting.

How the judge applied this, though, was to restrain the entire world.

Unknown Speaker: How do we know that?

Mr. Staver: We know it from the April 12 transcript, where the judge brought individuals who simply penetrated the zone.

On page 68 of the Joint Appendix, the judge--

Unknown Speaker: We don't have those people in front of us.

It's just... your argument is so confusing, because we don't have people here that have been found in contempt, so I don't know why we aren't just looking at this facially.

Mr. Staver: --Justice O'Connor, even aside from the in-concert, that's not the basis of the argument.

The basis of the argument is that originally this injunction should never have been applied against Judy Madsen.

This Court could not--

Unknown Speaker: But there are parts of this injunction that you say are okay.

Maybe we should clarify that by looking at the appendix.

You say you're not challenging every part of this current injunction.

Can you... by pointing us to the Joint Appendix, which parts are you saying you're not challenging, are okay?

Mr. Staver: --We would not challenge page 57, sections (1) and (2).

That section would prohibit blocking access to the clinic.

Unknown Speaker: Can you tell me where in the petitioner... the appendix--

Mr. Staver: That's Joint Appendix, Volume 1, page 57, in the Joint Appendix.

That's sections (1) and (2), and that is a reiteration, actually, of the 1992 injunction verbatim.

Unknown Speaker: --So that's what you're saying... you are challenging this new injunction wholesale.

The only thing that you're saying is okay is what was repeated from the first injunction.

Mr. Staver: Well, no, we would also not challenge the jamming phone that is part of this injunction.

We don't believe that that would be a constitutional right to call somebody's phone and jam up their phones.

Section (4) is the sound limitation.

We do challenge parts of that.

Parts of that section (4) on the sound and images limitation specifically prohibits the use of bullhorns.

We would not challenge a clearly defined volume restriction which would protect the interest of the clinic as well as sections (1) and (2), but we do challenge a prohibition on the making of any sound, or the display of any image.

In this particular injunction, someone who would be singing outside of the 36-foot zone, if that could be heard within the clinic, would violate the injunction.

Unknown Speaker: I... it seems to me that section (4) is limited to that, as far as sound goes... other sounds within earshot of the patients inside the clinic.

I read (4) as saying you only can't make such noise as would penetrate the clinic.

You don't contend that's unreasonable, do you?

Mr. Staver: We wouldn't contend that that's unreasonable, but this particular section speaks about the time limitations that these restrictions apply.

It says it applies from 7:30 a.m. to noon, Mondays through Saturdays, during surgical procedures and recovery periods.

We don't know when surgical procedures or recovery periods are, and it's not our interpretation, it's respondents' as well, because on pages 79 or so of the Joint Appendix, they specifically requested that that term be specified so that they would know when the surgery and recovery periods are.

Unknown Speaker: So that's a vagueness challenge to (4).

Mr. Staver: That's a vagueness challenge, Justice Scalia.

Unknown Speaker: But you don't contest that they can prevent people from making so much noise that it annoys patients at the clinic, inside the clinic.

Mr. Staver: No.

We wouldn't contest that, Justice Scalia.

What we would contest, though, is the limitation on sound.

If it simply said you can't intentionally shout to disturb this clinic, or to use sound amplification devices, we would have no problem with that kind of a reasonably defined--

Unknown Speaker: So you don't have an objection--

Mr. Staver: --broad restriction.

Unknown Speaker: --So you don't have an objection to the injunction against using a bullhorn.

Mr. Staver: No, we would not, Justice Souter.

Mr. Chief Justice, I would like to reserve the rest of my time for rebuttal.

Unknown Speaker: Very well, Mr. Staver.

Mr. D'Alemberte.

Argument of Talbot D'Alemberte

Mr. D'Alemberte: Mr. Chief Justice, may it please the Court:

This cases arises in context of an extensive and sustained campaign directed against the women's health care clinic in Melbourne, Florida.

This clinic provided a variety of services, including abortions.

The campaign employed tactics which included the blocking of access to the clinic and the creation of rather chaotic conditions around the clinic.

Unknown Speaker: What do you mean by the blocking of access, Mr. D'Alemberte?

Mr. D'Alemberte: Your Honor, I think the testimony showed--

Unknown Speaker: Did they specifically stop cars from going in?

Mr. D'Alemberte: --Yes, sir, Your Honor, they did, by conducting a closely ordered and slow-moving parade--

Unknown Speaker: They did not part when cars came up?

Mr. D'Alemberte: --They... they did not immediately part.

What happened Your Honor, and you can see it on the videotape which has been lodged with the Court--

Unknown Speaker: I watched the videotape.

It seemed to me they parted when the cars came up.

Mr. D'Alemberte: --They did, Your Honor.

What happened... I think as you look at the videotape and listen to the testimony of Ruth Arick, which accompanies that videotape and explains it, it shows that the people would begin to approach the car as the car moved off of U.S. 1 on Dixie Way.

As the car then moved towards the clinic, it was moving through crowds of people.

The videotape showed one of the days when there were not 400 demonstrators, as there were at other days, but they showed some number, and then what happened as they got to the clinic driveway.

People would slowly move out of the way, and you'd see, I think in the videotape, people swarming around the car, sometimes thrusting literature, attempting to thrust literature into the car.

Unknown Speaker: Is that unlawful?

Mr. D'Alemberte: Your Honor, it is in context--

Unknown Speaker: --into the car?

Mr. D'Alemberte: --It is in context of a health care facility.

It is not a violation of statutes, but it is within the discretion of a trial judge to prohibit that kind of conduct when the consequences of that conduct are shown to impair women's health, and that's the testimony in this case.

Unknown Speaker: The testimony is that... well.

Mr. D'Alemberte: Yes, sir.

The testimony is quite clearly, from Dr. Snydle and from the nurses, and from Ruth Arick, that the pulse rate, respiration rate, all the vital signs were changed, that the procedures became more dangerous to women, that sometimes people had to be delayed or turned away, they required higher sedation.

There's a strong health care interest here which is demonstrated by the facts in this record and uncontradicted.

Unknown Speaker: Mr. D'Alemberte, there was a case that didn't come to this Court but that was once very much in the news, and it was the Skokie case, where the argument was made that the people that would be subjected to this demonstration, because of their peculiar condition, would be certainly psychologically upset and even physically sick.

Do I take it from your argument that you disagree with the lower court's disposition?

Mr. D'Alemberte: No, Your Honor.

I think that demonstrations and other circumstances that upset the listener cannot be banned just because people are upset, but we are now dealing with a facility that's a health care facility.

We would not tolerate this kind of conduct around a hospital.

Unknown Speaker: Whose testimony are you relying on?

How many items of testimony?

Is it not the testimony of one doctor?

Mr. D'Alemberte: Well--

Unknown Speaker: One doctor at the abortion clinic, correct?

Mr. D'Alemberte: --One... the doctor... Dr. Snydle, yes, sir.

Unknown Speaker: Right.

Mr. D'Alemberte: --and--

Unknown Speaker: Right, and what opposing testimony would you have expected to be introduced?

Mr. D'Alemberte: --Well, Your Honor, what I would expect is that Dr. Snydle might be cross-examined in a way to make that testimony unbelievable.

It's clear from the record that the trial judge who sat on this case found Dr. Snydle's testimony quite credible, and that testimony showed not only that people's vital signs were affected and their health was affected but also it showed that people turned away from the clinic.

Unknown Speaker: So no... any speech can be prohibited if it affects people's vital signs, encourages them to be upset and may place their health at risk, is that... is that--

Mr. D'Alemberte: Well, Your Honor, in context of people who are coming to a health care facility... and we need to think of this as a hospital.

Unknown Speaker: --If I have a heart condition, can I carry a sign on me which says, heart condition, do not upset me--

[Laughter]

--and the court can issue an injunction that people shall not approach me unless I invite them to?

Mr. D'Alemberte: Well, Your Honor, I don't think that courts could do that precisely, unless there were someone... they might issue an injunction not against all the world, but if someone were coming around and stalking you, as this Court found these people, the defendants in this case were stalking the clinic personnel, yes, I think the Court can--

Unknown Speaker: What does stalking mean?

Does it mean walking after them?

Mr. D'Alemberte: --Following closely, I think, Your Honor.

Unknown Speaker: Following closely and saying nasty things to them?

Mr. D'Alemberte: Yes, sir.

Unknown Speaker: Have you ever gone near a picket line around a strike-bound plant?

Mr. D'Alemberte: Absolutely, Your Honor.

Unknown Speaker: And been called a strike-breaker?

Mr. D'Alemberte: I don't think that's been said to me, Your Honor, but--

Unknown Speaker: You've heard other people--

[Laughter]

All of these things are... this is wide, robust, wide-open debate you're talking about.

Mr. D'Alemberte: --Exactly, Your Honor, but not the kind of debate--

Unknown Speaker: You can't be stalked by people who want to say nasty things to you.

Mr. D'Alemberte: --Precisely, but not the kind of debate we have in a hospital zone.

The reason we pass by a hospital zone and we see that sign which says, quiet, hospital zone, is because we expect that to be a tranquil environment.

Unknown Speaker: How about a building of doctor's offices?

Would the same thing apply there?

Mr. D'Alemberte: It might, depending on the conditions, Your Honor.

If people were going there for treatment, and there were people crowding closely around in a way that was frankly intended to upset, intended to block... one of the things that I think is missing from the discussion so far, and certainly from counsel's presentation, is the intention of these defendants.

Not of all the world, not of all prolife advocates, but of these defendants, their intention, and announced intention before the trial court, as stipulated, they intended to block the clinics.

Unknown Speaker: Well, just before you get into that, would your heart-beat test apply to an abortion counseling facility where there is just counseling of women?

There are no abortion procedures undertaken there.

That's at some other clinic.

Mr. D'Alemberte: It clearly would not be... I mean, again I'm not familiar with all the medical tests, but it seems to me that the value would not be quite so high, because you'd not be providing treatment, and I think all of us--

Unknown Speaker: Was there a specific finding here that it was because of the treatment--

Mr. D'Alemberte: --No, sir--

Unknown Speaker: --that it was necessary to have this injunction?

Mr. D'Alemberte: --No, sir.

The trial court order cited to the doctor's testimony, and cited to the doctor's testimony relating to the impact of these... they were not just demonstrations.

The trial judge called this area through which they had to pass a gauntlet, and if you listen to the testimony and think about 400 people being in this narrow residential street, and think about what someone's going through when they're going to that facility--

Unknown Speaker: You talked about a gauntlet, and you said they were swarming, they were thrusting--

Mr. D'Alemberte: --Yes, sir.

Unknown Speaker: --I did not see this in the videotape.

I looked at the videotape, and it seemed to me to be a rather orderly demonstration, given the emotions and the philosophic differences between these people.

Mr. D'Alemberte: Well, Your Honor, the videotape was not taken on the day in which the greatest number of people were there, but if you will look at that videotape, and while you look at it think not just about the... what we see there, but think about what's being seen from inside that car as the patient is coming to the clinic, perhaps apprehensive, as of all of us would be, in going through any kind of medical procedure, and think about what happens when somebody approaches your car, somebody does indeed swarm around the car.

At least I see that in the videotape--

Unknown Speaker: Mr.--

Mr. D'Alemberte: --people thrusting literature, attempting to thrust literature in the window, sometimes people calling names of people who might have some expectation of privacy coming to a medical facility.

I just don't think it's the kind of thing that we want to permit going into a hospital facility--

Unknown Speaker: --Mr.--

Mr. D'Alemberte: --going into a medical facility.

Unknown Speaker: --Do you agree that the named petitioners here were not found in contempt?

Mr. D'Alemberte: Your Honor, I do disagree with that, and if I may--

Unknown Speaker: You think they were found--

Mr. D'Alemberte: --I'm sorry, I didn't listen to your question closely enough.

They were not, by name, found in contempt.

What they were found is the court finding said that the respondents, and I think this is finding A, and I'm reading from the appendix--

Unknown Speaker: --Where in the... is it in the Joint--

Mr. D'Alemberte: --It is in the Joint Appendix, Your Honor, and I'm sorry, I was reading from the appendix to the petition for certiorari.

Unknown Speaker: --Where is it in the petition for certiorari?

Mr. D'Alemberte: It's in... it's point A on B-5, Your Honor.

Unknown Speaker: B-5?

Mr. D'Alemberte: B-5, that the actions of the respondents and those in concert with them in the street and driveway approaches to the clinic of the plaintiffs continue to impede and obstruct both staff and patients from entering the clinic.

Unknown Speaker: Well, in any event, there's no finding by name of these three.

Mr. D'Alemberte: By name.

Unknown Speaker: Do we then have, in your view, just a facial challenge here?

Is that what we have to address?

Mr. D'Alemberte: I believe that's correct, Your Honor, indeed.

That was--

Unknown Speaker: All right, and if we have that, address, if you would, for a few minutes in your argument what standard we employ to test the validity of an injunction like this.

Mr. D'Alemberte: --Yes.

Unknown Speaker: I'm not aware of any case where we've applied time, place, and manner tests to injunctions.

Maybe we should, but I don't know that we ever have, and I'm not sure what the test is.

Some amici have said it must be a stricter test than the ordinary time, place, and manner.

How do we test out the provisions in front of us on a facial challenge?

Mr. D'Alemberte: Your Honor, in introduction I think I can find only one opinion.

It was, I think, Justice Stevens in Hirsh v. City of Atlanta mentioned that time, place, and manner should apply to injunctions as well.

Well, I think there should be no different test, in a way.

The suggestion of amici, as I understand it, is that injunctions should be looked at more closely for some reason.

The point made earlier, I believe, by Justice Ginsburg was that an injunction, unlike a statute, can be easily amended.

It can be modified.

If we're dealing with some kind of a special circumstance the courts are free to hear those special circumstances.

Unknown Speaker: A statute applies to everybody, Mr. D'Alemberte.

When a legislature says nobody shall annoy people going into hospitals, a 36-foot quiet zone around a hospital, nobody, no matter what their cause, shall be in there.

It's even-handed.

Mr. D'Alemberte: Yes, sir.

Unknown Speaker: An injunction applies to one group and says, this group shall not be within 36 feet of a hospital.

You don't see any difference between those two situations?

Mr. D'Alemberte: Yes, sir, Your Honor, and I see an important difference, and the difference, I think, favors the injunction, and the difference is that now you do not say to all the world you may not enter this zone.

You say it only to the people who have said, in open court, that they are going to block the clinic.

Please understand that that's the undertaking of these petitioners, and indeed, of all the defendants in the trial court, that their intention was to block the clinic.

They said it in a stipulation before the court, before the 1992 injunction was entered.

These people have vowed their purpose to block access to the clinic.

They've said on the record that they--

Unknown Speaker: Mr. D'Alemberte--

Mr. D'Alemberte: --do not believe that criminal law ought to prevent them from blocking the clinic.

Unknown Speaker: --They have conceded that section (2) of the injunction, which prevents them from in any manner obstructing or interfering with access to the clinic is okay.

Mr. D'Alemberte: Well--

Unknown Speaker: That's not contested.

Mr. D'Alemberte: --Well, Your Honor, on the record... and it's not in the Joint Appendix.

For some reason it got left out... at pages 64 and 65, the stipulation was that Ed Martin, Judy Madsen, and Shirley Hobbs well understand that peacefully blocking access to facilities might constitute a trespass.

They feel a violation of such a criminal statute is justified by their belief that protection of the unborn may merit breaking the criminal trespass laws.

Now, what they've said, they've announced that the spirit of Wichita is coming to Central Florida.

They've announced that they intend to close down abortion clinics, and they have said that they will conduct activity, and that they do not have to follow the law, that their... it's in the stipulation, Your Honor.

Unknown Speaker: Section (2) is in the injunction, too.

It says, you do that, you're going to go to jail.

Mr. D'Alemberte: Well, Your Honor--

Unknown Speaker: That's all right.

They don't object to that.

Mr. D'Alemberte: --Section (2) they did object to up to the point where the Fifth District Court of Appeals in Florida affirmed it in December of last year.

Unknown Speaker: They've gotten wiser.

They don't object to it now.

Mr. D'Alemberte: Well, this can be an educational process--

[Laughter]

--and yet we know--

Unknown Speaker: Mr. D'Alemberte--

Mr. D'Alemberte: --that prior to the 1993 injunction the clinic was still being harassed, and indeed, the harassment was escalating, and we do know that.

Unknown Speaker: --I'd like to go back to this point about the difference between the statute and injunction, and call your attention specifically to the point that was made in one of the many amici briefs in this case.

This was the one on behalf of the CIO... AFL-CIO, and it was that a statute of general application has little danger of censoring one set of ideas or speakers but not others, where an injunction by its very nature homes in on a particular group of speakers, so there can be a suspicion.

You gave the example of quiet around hospitals, but that's not what this regulation is.

It's quiet around this particular clinic, directed to a particular group of speakers.

Mr. D'Alemberte: It is, Your Honor, and to illustrate the point, if these particular defendants, who have a record of harassing intimidation, doing a large range of activities to block the clinic and to upset clinic personnel, to try to drive people away, if these defendants were actually to walk across the street carrying a prochoice sign, they would be prohibited.

It's these defendants, because of what their avowed purpose has been of closing down the clinic.

They have been enjoined, and they have not been enjoined as a way of trying to eliminate speech from this area.

It's--

Unknown Speaker: You say a prochoice speaker would be subject to the injunction?

Mr. D'Alemberte: --If these defendants were to carry prochoice signs, they would be subject to an injunction.

Conversely, if a prolife person not acting in concert with these defendants were to be in that zone, they would not be prohibited, unless they were operating in concert with these defendants, and so it's not a matter of what's being said, it's what these people have done.

Unknown Speaker: So these defendants were enjoined from making any sort of speech of any kind, whether prolife or prochoice?

Mr. D'Alemberte: In the 36-foot zone, because they had used that zone, the court found, to block access, and those findings were--

Unknown Speaker: And you consider that content-neutral, just as a... it's... an injunction against a labor union is content-neutral because it also prevents the labor union from saying, don't join the union, right, so it's not--

[Laughter]

Mr. D'Alemberte: --Yes, sir.

Unknown Speaker: Well, I--

--Mr. D'Alemberte--

Mr. D'Alemberte: It's simply, they're not allowed in the area, Your Honor, and the reason they're not allowed in the area, because they've avowed their purpose to close down the clinic, and they took activity to do it.

Unknown Speaker: --With respect, Mr. D'Alemberte, de facto, any injunction against a labor union or against this group is content-directed, de facto it is.

You may say in theory the union can come out for the employer, but that's not--

Mr. D'Alemberte: But Your Honor... Your Honor--

Unknown Speaker: --what it's all about.

You know what kind of speech you're stopping.

Mr. D'Alemberte: --Except, Your Honor, there's a difference here.

The difference here is that these rescue organizations do not represent all of the prolife movement.

They represent a small fraction of it, and they represent a fraction of it that's dedicated to shutting down the clinics, and one that avowedly says they will violate the law to do it.

Now, if someone shows up who is not associated with them, but is a prolife speaker, they're not subject to the injunction, and so it's not their speech, but it's their conduct--

Unknown Speaker: Well, they take their chance--

Mr. D'Alemberte: --and it's conduct which they said--

Unknown Speaker: --They take their chance at being considered in concert.

I mean, if you walk up... you know, a policeman say, he looks to me like he's in... have ever heard of chilling effect?

Mr. D'Alemberte: --Your Honor, I concede that there's a possibility of some chilling effect.

You have to make the judgments.

But let me make certain that the Court understands that the judgments being represented earlier, being made by the court... that is, the trial judge... I hope that full transcript is read in context of the fact that these people who were charged with violation of the injunction were at a preliminary hearing.

They were not under oath, not under cross-examination, and a number of their representations of the facts are now being incorporated into this argument.

That's not really what the trial judge intended by this order and I think it's clear.

Unknown Speaker: Mr. D'Alemberte, may I ask you just some factual background that would relate to the 300-foot zone around the house?

If we were to follow the suggestion of the AFL-CIO and apply something like the Carroll standard, at the very least we would require that before there was a restriction, an injunction restricting speech, there would have to have been demonstration that an injunction relating to action only had been inadequate.

Was there any prior injunction with respect to activities at the residences of the clients?

Mr. D'Alemberte: There was not, Your Honor.

Unknown Speaker: Is there anything in the record about what happened at the residences, other than the incident about the individuals going to the nurse's house when the children were at home?

Mr. D'Alemberte: Yes, there was, Your Honor.

A portion of the videotape shows a demonstration that I believe one of the clinic personnel and was commented on by Ruth Arick, a witness, and I believe that there was also a nurse... well, Nurse Pam Doyle.

There were several instances of that.

Unknown Speaker: Was there any indication that any conduct at the residences which were subject to this 300-foot injunction was unlawful?

Was there any allegation of an unlawful act committed?

Mr. D'Alemberte: Of... in the sense of violating the statute, no, Your Honor.

Unknown Speaker: Any statute, or any injunction.

Mr. D'Alemberte: No, Your Honor.

Unknown Speaker: So there'd been nothing except lawful but annoying actions?

Mr. D'Alemberte: Not in the record.

There... one of these may have been in a municipality where there was an antiresidential picketing statute... ordinance, but I don't think it's in the record, Your Honor.

Let me make the final point, and that is that the protesters now, after this injunction, may stand with their toes against the pavement, and they can be as close to the targets of their speech... indeed, the targets of the speech are the people coming into the clinic, as the width of that road, and since all people, according to this record, come to this clinic by car, they can be within a few feet of anyone who is attempting to come to the car.

They can hold up their signs, they can voice their slogans, and they can shout so long as it's not so loud that people can be heard inside the clinic.

They can stand just as close today as they could prior to this injunctive... injunction of 1993.

They cannot stand on the north side of this narrow residential street, but they can stand on the south side.

Thank you.

Unknown Speaker: Thank you, Mr. D'Alemberte.

General Days, we'll hear from you.

Argument of Drew S. Days, III

Mr. Days, III: Mr. Chief Justice and may it please the Court:

In contrast to a statute or ordinance, a court order properly addresses the particular conduct that is before the Court and is properly confined to addressing that conduct.

Consequently, we think the question before the Court presented here is whether the 1993 amended permanent injunction properly addressed the particular conduct before that court, and properly confined itself to addressing that conduct within constitutional limits.

This is a situation where Judge McGregor found that the 1992 injunction was inadequate to protect the interests of persons associated with the clinic, and that was not... that was an injunction that was not challenged.

I think the record also shows some reluctance on the part of the judge to modify that injunction, but once he did, it was because he had heard 3 days of evidence in that regard.

The constitutional limits with respect to injunctions, we would submit, are those imposed by this Court with respect to reasonable time, place, and manner.

Unknown Speaker: Do you have a case in which a challenged injunction was judged by the time, place, and manner standard?

Mr. Days, III: We do not have any additional case to the one that Mr. D'Alemberte cited, the Hirsh v. City of Atlanta.

Unknown Speaker: Yes, which wasn't a case, really, but was--

Mr. Days, III: Well, that's correct.

Unknown Speaker: --the opinions of separate justices.

Mr. Days, III: Well, Your Honor, I suppose that's one of the reasons why we're here--

[Laughter]

--because we think that's what the Court should be doing in this respect.

Unknown Speaker: Specifically, why not the Carroll standard?

Mr. Days, III: Why not the Carroll standard?

Because I think that first of all it depends on what part of the 1993 injunction you're addressing.

You were talking about the residential picketing provision.

But I think to pick up on something that my colleague said, we're talking about not just a medical facility, we're talking about conditions where interference with the ability of women to get to the clinic and get the services that the clinic provides would cause them irreparable harm.

This is not a provision that would apply across the board to medical facilities, although I think it is true that medical facilities are not factories, mines, or assembly plants, as one of the members of the court said, but no, I think a court looking at the situation has the power to enjoin certain behavior that poses a threat to people in violation of rights that are protected under State or Federal law, and that's what the judge did in this case.

Unknown Speaker: Do you think there are any special dangers that attend the use of injunctions to prohibit this conduct that do not attend the enactment of a criminal statute?

Mr. Days, III: I wouldn't... Justice Kennedy, I wouldn't call them special dangers.

I think that it's simply that the mode of analysis, the evidence that the court would look at with respect to the constitutionality of a statute that imposed time, place, or manner restrictions would be different from the type of evidence that the court would look at in dealing with an injunction.

Unknown Speaker: The punishment would be different, too, wouldn't it?

Punishment for contempt can be a good deal more summary than a criminal indictment and trial.

Mr. Days, III: That is true, but I think it's also the case that an injunction has more flexibility.

That is, the court can look at the situation and make modifications to the extent that they overreach--

Unknown Speaker: But isn't that just the point?

Mr. Days, III: --with respect to the particular problem.

Unknown Speaker: It has flexibility because it can be applied to some parties and not to others, and isn't that... I use the word "danger"... a significant concern where free speech is at issue?

Mr. Days, III: It's certainly a matter of concern, but I think that unless the Court is going to prohibit courts from issuing injunctions under circumstances like these, there has to be some ability of the courts to address problems like those presented in this particular case.

Unknown Speaker: Yes, there has to be an ability, but doesn't that ability have to be accompanied by a special solicitude for free speech rights because certain persons are being singled out, which is not the case of a statute, and I don't see anything in your argument where you've acknowledged that.

Mr. Days, III: Well, first of all, Justice Kennedy, I think it is possible for even statutes to deal with particular problems that may fall more heavily on one group than another, but once again, what the court would do is try to determine whether the legislative body that enacted the statute or ordinance was responding to an actual evil.

That would be the analysis.

But it seems to me that applying the Fair Education Association time, place, or manner approach is perfectly suitable and sufficient for situations of this kind.

I don't agree with the AFL-CIO that there has to be something you might call a time, place, manner plus test.

I simply think that, given this type of situation, the court can look at the evidence.

Unknown Speaker: Mr. Days, we're not dealing with an abstract question now.

We have... don't we have a long history in this country of enjoining labor unions, of enjoining all kinds of political protesters, students in the sixties, civil rights marchers?

Doesn't that caution particular care in dealing with injunctions, rather than a lighter brand of review than one we would apply to a statute?

Mr. Days, III: I'm not suggesting a lighter brand.

I'm simply suggesting that the same approach that's used with respect to statutes ought to be adopted by this Court, but the evidence that is considered is different, but I don't think that is any reason to think that there has to be a heavier test under these circumstances.

What this particular case establishes is that the conduct is the purpose... is the objective of the injunction.

It's not directed at content of the petitioner's speech, but rather to conduct that the trial court found--

Unknown Speaker: Excuse me.

Mr. Days, III: --Yes.

Unknown Speaker: The... what should I say?

What prompts the injunction is conduct, but what the injunction is directed to is not only conduct but attempted speech, and I assume that, you know, in some cases that can be justified if there's been a history of violence on the picket line, you can simply say okay, we've given you guys a chance.

You had a prior injunction, you ignored it.

No picket line.

You just can't be trusted.

But you know, it isn't the conduct that's being enjoined any more, it's speech that's being enjoined because of prior conduct.

Now, do you acknowledge that that's what's involved here?

Mr. Days, III: Well, certainly the restriction--

Unknown Speaker: Or do you think the speech itself is unlawful?

Mr. Days, III: --No, the speech of course is not unlawful.

That's not our assertion.

Of course, controlling the conduct, enjoining the conduct will have some impact on speech, but it is in response to the fact that people in the position, in this case close to the clinic, intimidated, harassed, interfered with people who were seeking the services of the clinic, or were providing those services, and that was sufficient in the view of the court to justify the injunction.

Unknown Speaker: What do you mean by intimidated or harassed?

Do you mean, seeking to give them leaflets?

Mr. Days, III: No, I'm not talking about that.

Unknown Speaker: Calling them names?

Mr. Days, III: I'm not talking about that.

I think, Justice Scalia, this record shows, for example, that there were ladders placed up against the fences of the clinic, signs were put down inside these privacy fences so that the patients could see it in the areas where surgery was being conducted, or they were recovering.

Some of those signs had the names of the partners of women who were going through those surgical procedures.

Those were not simply informational efforts on the part of the protesters.

Those were designed to interfere with the processes of the clinic.

Unknown Speaker: Well, just as calling names is designed to hurt.

Calling President Nixon, to speak of recent events, a murderer as happened in demonstrations when the Vietnam War was in progress is designed to hurt.

Does that make it unlawful?

Mr. Days, III: It does not make it unlawful.

I--

Unknown Speaker: May I ask--

Mr. Days, III: --Justice Ginsburg raised the Skokie issue... excuse me.

Unknown Speaker: --are you saying that it would be constitutionally protected conduct to follow someone around day after day after day, calling him a murderer and a baby killer and so forth, just... everywhere he went, a person could follow him and keep repeating the same message over and over?

Would that be constitutionally protected?

Mr. Days, III: I think, given those facts, that might approach to the point of being an assault, creating a fear for that person of some type of physical attack.

Under those circumstances, I think courts could intervene.

Indeed, under Florida law, there is a stalking statute which is simply not following people around, it's putting them in fear of some other harm to their person.

Unknown Speaker: But are you in effect saying that there does have to be at least a predicate threat of illegal conduct?

Mr. Days, III: I'm not saying that.

I think that there, in this case was illegal--

Unknown Speaker: So... well, the only reason I ask, in your answer to Justice Stevens, when you said that that might raise the... might rise to the level of an assault or a threat of harm, I thought you were saying those would in fact be criminal offenses and they would be the predicate for the injunction in that case.

Mr. Days, III: --May I finish?

Unknown Speaker: Yes.

That is not what you meant?

You may answer the question.

Mr. Days, III: That there could be a predicate for criminal action.

Unknown Speaker: But that they are not a necessary predicate.

Mr. Days, III: That's correct.

Unknown Speaker: Thank you, General Days.

Mr. Days, III: Thank you.

Unknown Speaker: Mr. Staver, you have 3 minutes remaining.

Rebuttal of Mathew D. Staver

Mr. Staver: An injunction, de facto, is content-based.

The Carroll standard is the applicable standard.

To apply the time, place, and manner standard would result in the overruling of more than 60 years of this Court's precedent, beginning in 1931 with Near.

The standard applicable to this case is that an injunction touching on free speech is a prior restraint which carries a heavy presumption against constitutional validity and which must be precisely tailored to the exact needs of the case.

That standard is totally inapposite to a time, place, and manner standard precisely because it focuses on someone's speech, in this case petitioner's prior to her or them being able to speak their speech.

It criminalizes their side of the debate.

This particular case is certainly coming to this Court with a heavy presumption against constitutional validity.

It is a touchstone of First Amendment regulation to be very precise, not overkill.

This injunction is overkill.

As in Claiborne Hardware, that injunction was overkill.

As in Near, that injunction was a prior restraint.

This injunction, instead of using a surgeon's scalpel, cuts with a butcher's knife.

This injunction restrains Judy Madsen's speech from being able to distribute a piece of literature which is not offensive or distressing to anyone forever, within the 36-foot zone.

Judy Madsen can never lawfully be present on a public sidewalk, public highway, or right-of-way, period, under this injunction.

Judy Madsen must censor her speech when she goes within the 36-foot zone.

Despite page 375 of the Joint Appendix, where respondent specifically said, Judy Madsen had never been a target of the contempt proceedings, yet she's still a part of this injunction.

The clinic and the court below impermissibly lumped her protected speech with some other unknown--

Unknown Speaker: Are you arguing that if she had been the president of Operation Rescue and said, I believe in everything they're doing and I want to help them as much as I can, there'd be a different result?

Mr. Staver: --If she were, Justice Stevens, condoning and orchestrating this?

Unknown Speaker: Yes.

Mr. Staver: She was not a target of the contempt in any respect.

Unknown Speaker: But I'm asking you, if she were, if she said, I agree with everything they do, I want to help them as much as I can, would she then lose her... the rights you're describing?

Mr. Staver: No, Justice Stevens.

Unknown Speaker: Then I don't really understand what difference it makes if you've got Judy Madsen rather than the president of the organization.

Mr. Staver: I believe on page 920 of this Court's decision in Claiborne Hardware, it says that to restrain those illegal activities for individuals, not simply because they're members of a group.

Judy Madsen did no illegal activity.

Thank you, Mr. Chief Justice.

Chief Justice Rehnquist: Thank you, Mr. Staver, the case is submitted.

Attribution:

The OYEZ Project

Featured:

National Organization for Women (NOW) v. Scheidler - Oral Argument

Fri, 09 Jan 2009 14:49:53 +0000

Case:

National Organization for Women (NOW) v. Scheidler

Media File:

92-780_19931208-argument.mp3

Related Transcript:

1993_92_780_argument.xml

Transcript:

Argument of Fay Clayton

Chief Justice Rehnquist: We'll hear argument first this morning in No. 92-780, National Organization for Women, Inc. v. Joseph Scheidler.

Ms. Clayton.

Mr. Clayton: Thank you, Mr. Chief Justice, may it please the Court:

Unknown Speaker: Ms. Clayton, before you start, could I ask precisely whom you represent here?

Mr. Clayton: --Yes, Your Honor.

I represent the National Organization for Women in its capacity as a representative of its female members who might use the clinic service... the clinic services, and not in it's own capacity on the RICO claim.

We did have NOW in its individual capacity on the antitrust, which may have given some confusion.

Of course, in addition I also represent the clinics, Delaware Women's Health Center and Summit, who have standing in their own right and who also represent a class of all similarly situated clinics.

Unknown Speaker: So NOW, using the initials, is definitely a party to this proceeding here.

Mr. Clayton: Yes, it is, Your Honor.

It's seeking to protect the rights of its women members.

And in particular it's just seeking the injunctive relief, it's not seeking damages for those women.

The clinics, of course, are seeking damages for themselves and all similarly situated clinics.

Your Honors, this case involves forcible violent conduct by a highly structured enterprise called PLAN, an enterprise with a very clearly defined goal, to force every women's health center that offers abortion out of business by whatever means are necessary, including terrorist tactics.

Our case arises under RICO, which doesn't say a word about economic motive, and the question before this Court is whether to apply the statute that Congress wrote or amend it judicially to add this unstated requirement.

I'd like to discuss three points this morning.

First, that the text and structure of RICO do not allow for an economic motive requirement.

Second, that to apply the statute as Congress wrote it easily comports with the First Amendment.

And third, that an economic motive requirement would be bad policy in any event.

Starting with the text, we bring our case under section 1962(c) of RICO, which doesn't mention economic motive, and neither do the two terms where the lower court claimed to find this requirement.

Both "racketeering activity" and "enterprise" are terms that Congress expressly defined.

They're terms that this Court has called broad.

And in the Sedima case, this Court pointed out that "racketeering activity" consists of the commission of the predicate acts, no more and no less.

And in H.J. the Court recognized that this generous definition would purposefully attract a broad array of perpetrators.

We know that Congress did not want to limit racketeering activity to only those crimes that were economically motivated, because when Congress chose the 30-some-odd crimes to include in RICO as the predicate acts, it included numerous crimes that have no necessary relation to money at all.

In fact, three of the first four, arson, kidnap, and murder, have no necessary relation to money.

And none of the predicate acts is any less a crime if it's committed for some other reason like power, hatred, or revenge.

Unknown Speaker: Kidnapping is usually done for money, isn't it?

Mr. Clayton: Your Honor, it sometimes is and it sometimes isn't.

The news the other night indicated there's a new theory about the Lindbergh kidnapping, and it's my suggestion that if it turns out that it was a relative who did it because of a spurned love affair, that would be just as much kidnapping as if it were Mr. Hauptmann who had done it for the ransom.

The fact is that kidnapping doesn't require money.

That's not an element of the crime.

It sometimes includes it, it sometimes doesn't.

Sometimes even organized crime, in terms of mobsters, kidnap people to protect their turf or to avenge an insult, or for some other reason.

Unknown Speaker: Ms. Clayton, it isn't really the predicate acts so much that we're concerned about, as the organization which allegedly is supposed to have committed the predicate acts.

Mr. Clayton: Well, Your Honor, that is the alternate source that the lower court--

Unknown Speaker: Right.

And Congress does use the word "enterprise" for that.

Mr. Clayton: --It certainly does, Your Honor.

Unknown Speaker: And one of the popular proposals that's given political discussion nowadays is so-called enterprise zones.

What do you think they relate to, 4-H Clubs, voluntary associations, or commercial associations essentially?

Mr. Clayton: Well, as used in the enterprise zones that we have in Chicago, they relate to commercial businesses.

But Congress defined the term--

Unknown Speaker: And free enterprise, the term "free enterprise" is used the same way.

It doesn't mean, you know, freedom to associate; it means freedom to conduct business activities.

Mr. Clayton: --Enterprise has many definitions, including that, Your Honor, that's correct.

Unknown Speaker: One of... one of the meanings of "enterprise" at least, one of the possible meanings of "enterprise" does have a commercial element to it.

Mr. Clayton: Unquestionably.

But Congress defined the term "enterprise".

It didn't leave it to our imagination.

It didn't even leave it to dictionary definitions.

Unknown Speaker: Define it.

Now, it defines a number of terms in 1961 where it says "racketeering activity means", and it says what racketeering activity means.

But for enterprise it says "enterprise includes"--

Mr. Clayton: That's right, Your Honor.

Unknown Speaker: --And then it lists a number of things it includes: an individual partnership, corporation, association, and so forth.

Mr. Clayton: And as this Court said in Turkette, that word "includes" means that there are no restrictions on the word "enterprise".

It includes any association, in fact.

Unknown Speaker: Well, but suppose the... suppose the word... just to make the point I'm asking you about clearer, suppose that the phrase used were not "enterprise" alone but "business enterprise".

Mr. Clayton: We'd have a very different situation then, Your Honor.

Unknown Speaker: Yes, but... yeah, and if that were the case and you had this same what you call definition in 1961(4), suppose it read, "business enterprise" includes any individual partnership, corporation, association, and whatnot, would you think that to say it included all of those things would mean that it read out the business, the word "business"?

Mr. Clayton: Your Honor, I would suggest that if Congress had defined the term that way, that would have been an ambiguous definition.

We know that in a predecessor--

Unknown Speaker: Well, but that depends on whether you think enterprise--

Mr. Clayton: --Not at all, Your Honor.

Unknown Speaker: --Has a business connotation to it or not.

Mr. Clayton: Not at all, Your Honor.

I would suggest that in Your Honor's hypothetical, business enterprise seems a little inconsistent with associations, in fact which, as this Court pointed out, is an unambiguous term.

The Court has said that.

The predecessor draft of RICO did use... one of the predecessor drafts, in fact three of them used the term "business enterprise".

Not as part of a definition, I think that would have been confusing; they used it as part of the statutory text.

If 1962(c) said business enterprise, we couldn't be here, there's no question.

But that particular language was dropped by Congress.

It was dropped from Senate bill 1623.

It was dropped from Senate bill 2048 and 2049.

And the version that Congress enacted, Your Honor, doesn't have "business" in it.

Unknown Speaker: My point is that if you believe that 1961(4) alone would not eliminate the business connotation of it.

Mr. Clayton: Your Honor, I do not concede that business means... that enterprise means business.

It includes business enterprises, it includes nonbusiness enterprises.

In fact, the argument that Your Honor is articulating is so much like the one that this Court rejected in Turkette, where it refused to limit RICO's enterprises to legitimate enterprises.

The argument was meant... the argument was made that the enterprise definition meant only legitimate enterprises, but this Court said if Congress had wanted to limit the statute to only legitimate enterprises, it could have used the word.

Here not only did Congress not include the word "business enterprise" in either the statute itself or the definition, Justice Scalia, it actually dropped that term.

And that shows, one, that Congress knows how to use the words when it wants to limit a statute.

And, two, it made the decision not to do that.

Unknown Speaker: Maybe it didn't want... it didn't business there because they didn't think it had to be a business, but it had to... still had to have a commercial motivation, which is what "enterprise" connotes.

Mr. Clayton: Well, Your Honor, Congress didn't say--

Unknown Speaker: You had an antitrust claim below, didn't you?

Mr. Clayton: --We did, Your Honor, and we--

Unknown Speaker: Now, the antitrust laws don't say anything about commercial motivation either, do they?

Mr. Clayton: --They certainly don't.

And it's absolutely--

Unknown Speaker: But do we... do we apply them against, let's say, grape boycotts--

Mr. Clayton: --Your--

Unknown Speaker: --If a group of citizens for political reasons wants to boycott grapes, that's certainly a contract combination or conspiracy in restraint of trade.

Do we apply the antitrust law to them?

Mr. Clayton: --Your Honor, the answer to your question is no, but not because of the definition of what antitrust covers, but because of the First Amendment.

The First Amendment doesn't let the antitrust laws or any laws cover protected speech like a boycott, like a nonviolent boycott.

Unknown Speaker: A boycott's not speech.

It's an action.

Mr. Clayton: Your Honor, the antitrust laws are crystal clear that nonprofit organizations are covered.

This Court said that in D.C. Lawyers, it said it in Professional Engineers, and it said it from time immemorial.

The antitrust laws are clearly applicable to nonprofit organizations.

Unknown Speaker: Of course, the words "trade or commerce" have a business aspect to them too, don't they?

Mr. Clayton: They do, Your Honor.

And you know something, it's very important, Justice Stevens, to remember that RICO does have one business requirement.

It requires effects on business or property.

It requires in section 1964(c) that for a plaintiff to come before this Court in a private case it must have been injured in its business or property.

Congress spelled that out right in the statute, unlike this missing motive requirement which doesn't appear anywhere.

And by the way, Justice Stevens, that economic effect is something that even the lower court recognized we unquestionably have, because this nationwide campaign of terror has caused and continues to cause enormous business and property damages to our plaintiffs.

Another reason that we should not infer an economic motive requirement into a statute that is totally devoid of one is RICO's liberal construction clause.

This clause shows that Congress purposefully chose breadth over narrow constructions.

And as the Court pointed out in Russello, this is an unusual provision, particularly for a criminal statute, and it shows Congress' choice to be expansive, particularly in the remedial provisions of RICO's application.

I would like to address the First Amendment issue.

Justice Scalia's question about the antitrust laws certainly brought that into play.

And the respondents have argued here that their conduct is really speech, but both of the lower courts recognized how false that claim was.

PLAN, as we've pled in our complaint, is dedicated, committed to mob violence, to the use of any and all means necessary to force the clinics and patients to give up their protected rights.

PLAN ridicules peace-loving opponents of abortion.

It calls them wimps.

PLAN says it will only answer to higher laws, which are articulated by the leaders of PLAN.

It will not--

Unknown Speaker: Well those are some of your claims.

But you assert that you would... you would have a right to win here if you... if you proved acts of extortion--

Mr. Clayton: --That's correct.

Unknown Speaker: --Which you would define to include acts which intimidate someone into... simply into not doing something.

Mr. Clayton: Well--

Unknown Speaker: Extortion doesn't even mean you have to get money or property from someone, in your view.

Mr. Clayton: --That's right, Your Honor, on the first point at least.

Unknown Speaker: But just intimidating them into not doing something.

Mr. Clayton: One does not have to get property.

One has to obtain property, which has been interpreted by the courts, meaning to make someone give up property.

In Green this Court said the emphasis is on what the victim loses.

Unknown Speaker: You're getting it is the same as somebody else giving it up.

Mr. Clayton: Not always, Your Honor.

When somebody extorts--

Unknown Speaker: Not always, just for purposes of this statute.

Mr. Clayton: --In this case, Your Honor, there actually is some gain, because in many cases the clinics run by PLAN and its coconspirators actually get the business opportunities in the form of patients who they take to the... the antichoice clinics.

Unknown Speaker: Well, let's say that I want to stop somebody... just to take it out of the abortion context, which tends to inflame... inflame emotions, suppose I want to get somebody to stop selling grapes and I throw pickets across the street.

And simply in order to save... to save... urging other people to boycott.

Simply in order to save money, the supermarket, whoever, says it's just not worth it, we won't sell grapes.

They've been intimidated from selling grapes, isn't that right?

Mr. Clayton: It's protected by the First Amendment, Your Honor.

And in that example, that conduct is not extortion because First Amendment protected speech can never be extortion.

If those same boycott... if those same protesters took their picket signs and hit the... their... the grocery store on the head or forcibly blockaded the store so they could not do business and thus deprived them of their property right, then we would have extortion.

But peaceful picketing can never be extortion.

It can never be a predicate act of any sort under RICO.

Unknown Speaker: Ms. Clayton, do we have... do we have a ruling to review on that issue, as distinguished from the one that you were just discussing with Justice Scalia?

Mr. Clayton: Thank you, Justice Ginsburg.

No, we do not.

That was offered as a question for review by the respondents, but the Court did not see fit to take that issue.

And, in fact, Your Honor, even if the Court were to totally disregarded Hobbs Act extortion, we have so many other predicate acts that arise under Federal pleading standards, that arise from the very same allegations of the complaint... I mean there's Travel Act violations, State law extortion, section 659, arson, kidnap, a lot of others.

So even if we totally put aside the Hobbs Act extortion issue, we have far more than the two required predicate acts.

Unknown Speaker: Well, and if... if we rule as you ask us to in the question presented, that does not prevent the defendants from raising First Amendment defenses below.

Mr. Clayton: Your Honor, of course it doesn't.

We treasure the defendants' First Amendment rights like we treasure our own, and we do not want to in any way infringe on those rights.

We have tried in the discovery and the district court... and as the district court recognized, we've drawn such a wide margin around protected speech.

When they picket, when they pray, when they leaflet, when they petition Congress, this is protected, this can never be extortion, it can never be a predicate act.

But when they give up that protected form of speech and they turn to force and violence and the use of fear of more force and violence, particularly in a context where we have arson, we have killings, we have threatened killings, that... once and a while their advocacy can cross the line, as this Court explained in Claiborne Hardware and in Meadowmore, it can cross the line--

Unknown Speaker: But those issues are not presented here.

Mr. Clayton: --They're not, Your Honor.

They're not.

Unknown Speaker: The question is on the definition of enterprise and pattern of racketeering activity and whether economic motivation is required for those, and that's it, as far what is before us to review this morning.

Mr. Clayton: That's exactly right, Your Honor.

Those are the precise issues.

And as I... I believe I've explained, the statute and the structure of RICO do not allow for it.

Looking at the structure, we see the Organized Crime Control Act does have some business enterprise limitations, RICO does not.

There are a host of policy reasons also for not inferring an economic motive.

If the Court doesn't have any further questions, I would like to save my remaining time for rebuttal.

Unknown Speaker: Very well, Ms. Clayton.

And Mr. Estrada, we'll hear from you.

Argument of Miguel A. Estrada

Mr. Estrada: Thank you, Mr. Chief Justice, and may it please the Court:

For three reasons, RICO does not require a prosecutor or a plaintiff to prove an economic motive.

First, there is no textual basis for such a requirement.

Second, this Court has already rejected similar nontextual limitations on the scope of RICO which were also claimed to derive from Congress' purpose in passing the statute.

And third, the economic motive requirement is elusive and really has little to do with the societal effects of systematic ongoing crime, which is what the statute is about.

As to our first point, the respondents in this Court have not identified the single one textual home of the economic doctrine.

Unknown Speaker: Just... but Justice Scalia just did.

What do you say about the word "enterprise"?

Mr. Estrada: The word "enterprise", Justice Stevens, is defined by statute, and it is not new to this Court.

The notion that the word "enterprise" can include this doctrine really comes from the Ivic case in the Second Circuit, where the Government tried to use the statute to prosecute terrorism in New York City.

And in that case, the Court did point to that word as a... xx basis for the doctrine.

Everything--

Unknown Speaker: In an opinion by--

Mr. Estrada: --Judge Friendly.

Unknown Speaker: --By Judge Friendly, and a pretty good panel.

Judge Oaks, right, and who was the third one, Judge Feinberg, Chief Judge Feinberg?

Mr. Estrada: They're all good judges, Justice Scalia.

[Laughter]

And even good judges sometimes get it wrong.

[Laughter]

Everything the court said, Judge Friendly and all, in the Ivic case had been foreclosed by this Court in the Turkette case.

There is practically no argument in the Ivic opinion that does not have a counterpart in this Court's opinion in Turkette.

And the failure of the enterprise element to give content to this doctrine I think is not only demonstrated by what the Court said in the Turkette case, but also by what the Second Circuit itself did with the doctrine 3 months later in the Bagaric case.

Unknown Speaker: What did Turkette say about enterprise?

Mr. Estrada: The Court in that case noted that the definition by Congress is very broad, and it certainly includes any entity or group of individuals associated in fact, which, the Court noted, includes any group that associates for a common purpose.

The Court said nothing about what the nature of that purpose must be, and that's all the Court said.

And, in fact, as the lower courts have recognized, pinning this doctrine on the enterprise element would really cripple the role that Congress thought RICO would play.

It would take out of the reach of RICO Government entities, courts, nonprofit organizations, all of which have uniformly been recognized by the lower courts to be RICO enterprises, and which even Respondent Scheidler, I think, at page 14 of his brief concedes are RICO enterprises.

In addition, one of this Court's cases, the H.J., Inc. case, had a Government agency as a claimed RICO enterprise, and that certainly gave no pause to the Court in ruling that the complaint in that case was sufficient.

Now--

Unknown Speaker: How do you... how do you, Mr. Estrada, explain our more limited scope accorded to the Sherman Act?

Mr. Estrada: --Well--

Unknown Speaker: Not expanding that to the limit of the meaning of its words.

Mr. Estrada: --Well, there is a difference in the Sherman Act, Justice Scalia, in that it really does tend to make unlawful things that in the absence of the act could be done lawfully.

RICO takes a different tack, and it starts with conduct that is already criminal.

And while Congress said that as to the civil side of RICO, it was looking to the antitrust model, this Court has recognized that that is not a model that the Court should follow in all contexts.

For example, in the Sedima case a claim was made that based on the antitrust laws which called for some form of antitrust injury, there should be a requirement in RICO that there be racketeering injury.

And this Court turned down that argument, saying that racketeering activity is nothing more and nothing less than the commission of the predicate crimes.

Thus while Congress did have the antitrust model of civil damages in mind, I don't think this Court has ever ruled that it... that every aspect of RICO is ruled by what Congress has done in the antitrust areas.

They're similar to some extent, but they're not identical.

That brings me--

Unknown Speaker: The Government supports the interpretation of extortion that the court below adopted as well, doesn't it?

Mr. Estrada: --We haven't briefed--

Unknown Speaker: That is to say you don't have to obtain property?

Mr. Estrada: --We have not briefed the issue, Justice Scalia, but it... because it is not the question on which the Court granted cert. And in our view, whatever--

Unknown Speaker: Well, it is... it is an issue which, if... if supported, would sustain the judgment below, isn't it?

Mr. Estrada: --No--

Unknown Speaker: And therefore we could entertain it.

Mr. Estrada: --You could entertain it.

But if ruled on by the Court, and even if ruled on favorably to the respondents, it would not, in the end, support the judgment, because in our view the facts pled in the complaint, though not the legal theory, do show other predicate acts like arson and other crimes that are predicate acts under RICO, which though not pled as a legal theory, are pled as facts and which would be... and which, in our view, would be sufficient to support the judgment on the pleadings.

Though we have not briefed the Hobbs Act issue, I should say that it is far from clear that nothing was obtained in this case, taking the claims in the complaint in the light most favorable to the plaintiffs.

In the Green case, this Court essentially held that if I put a gun to your head and have you give your wallet to the first person who comes down the street, that is extortion under the Hobbs Act, even though I get nothing physically.

And the reason for that has to be that because even though I have not myself obtained your wallet, I have obtained the right to control the disposition of your wallet which is, in itself, a property right.

You have a right to give your wallet to whom you please, or even keep it yourself, and that's what you usually do all the time.

But if I put a gun to your head and make you give your wallet to the first person who comes down the street, I have taken to you a right to control who should have your wallet.

I have chosen the person who should have your wallet.

And that, in itself, is an important right of your property right to your wallet and is itself a property right.

So even though we have not briefed it--

Unknown Speaker: Mr. Estrada, why I'm concerned about it is that the combination of that broad interpretation of extortion, plus the interpretation of RICO that the petitioners favor here, leaves one in a situation where any... any national organization which has adherents and hangers-on who may commit a tort, hitting someone with a picket sign or trespassing upon property, by committing an unlawful act can be charged with committing extortion even though they're not trying to get money.

And this means that any... any national organization demonstrating for some political cause exposes itself to lawsuits nationwide... which they may win, but they may lose, but it's an enormous amount of expense... by people claiming that that is the very purpose of the organization, to extort.

And it makes... if it were applied to the NAACP in the days of civil rights activism, it would have been very debilitating.

Does it not concern you that the combination of the two can have that effect?

Mr. Estrada: --Justice Scalia, I don't think that anyone here has said anything different about the governing constitutional standards, and I don't think anyone views them any differently as the case comes to the Court.

And there is no question that, as with every other area, there will be issues at the margins.

However, the issue here is whether an economic motive doctrine should be implied to take that danger out of RICO.

And in our view, it would be a poor proxy for that danger and it's not really the issue at this stage on the pleadings.

Thank you.

Unknown Speaker: Thank you, Mr. Estrada.

Mr. Blakey, we'll hear from you.

Argument of G. Robert Blakey

Mr. Blakey: Mr. Chief Justice, and may it please the Court:

This appeal is about a misguided effort by two clinics to invoke two Federal statutes, two powerful Federal statutes, the Hobbs Act and RICO, in the context of a social protest movement.

Under their construction of the statute, it would be applicable not only to a Gotti or a King, but to a Ghandi or a Chavez.

That's a result the Congress specifically intended to avoid in 1970.

This appeal runs squarely into four... three rock-like noes: no extortion, no economic motive, and no standing.

Let me turn first to the question of extortion.

Unknown Speaker: Mr. Blakey, I assume that you're going to deal, both with respect to what you said about standing and what you said about no extortion, with our function as a court of review rather than as a court of first view.

And as I understand it, there was no ruling on standing in the district court or in the court of appeals.

Mr. Blakey: Let me answer your second question first, Your Honor.

The question of standing is always before this Court.

It is jurisdictional.

Even if not raised below, you must face it here.

Unknown Speaker: You are quite right that it's jurisdictional.

But it's usual that we have the benefit of a prior decision on that question.

It's not common that this Court makes the ruling for the first time on an issue of standing.

Was this raised in the district court?

Mr. Blakey: To my knowledge... Your Honor, the posture of this case changed over time.

For example, at the time it was in the circuit court NOW was a plaintiff under the antitrust statute and had standing.

When this Court declined to grant cert on the antitrust question, NOW then no longer was a plaintiff in the antitrust count, and its lack of standing in this Court is directly related to the fact that it is not a plaintiff in the RICO count.

That's something that could not have been raised in the lower court simply because their lack of standing on RICO was not involved in their original petition.

Unknown Speaker: I thought that Ms. Clayton had explained, in answer to Justice Blackmun's question, the capacity in which NOW is appearing at this stage, as distinguished from its position as an antitrust claimant.

Mr. Blakey: Well, if it is appearing as a representative of either the... she is appearing as a representative of the two clinics.

NOW has no standing.

We would quarrel with the standing, first, of NOW because it is not a RICO plaintiff.

We would quarrel with the standing of NOW in behalf of anyone else.

This case was not certified as a class.

They must first--

Unknown Speaker: Was... there was no ruling on that question.

Mr. Blakey: --That is correct, Your Honor.

Unknown Speaker: So it's not as though you're here after there has been a denial of certification.

At this stage, mustn't we assume that question in the light most favorable to the plaintiff?

Mr. Blakey: Yes, but even on the face of this complaint, and certainly in light of the facts set out in the RICO cases statement, NOW has no standing, neither of these clinics have standing.

And it is not only appropriate, but it's a duty on us, as an advocate of this Court, to draw that lack of standing to this Court's attention.

Unknown Speaker: I appreciate that, Mr. Blakey, and I don't want to belabor this point.

But you know that even for jurisdictional questions, this Court generally sits as a court of review.

Mr. Blakey: Yes.

Let me answer the first part of your question.

The grant of cert... contrary to Ms. Clayton's position is we did not seek a grant of cert. What we merely pointed out in our brief was that if this Court took the RICO question, it would face necessarily the question of extortion.

And since we are respondents and not petitioners, we may defend the court below, the judgment of the court below, on any ground whether it was raised below or not, and in this case it was.

Our central and strongest argument is "no extortion".

And there is no extortion in this case for two fundamental reasons.

This statute, the Hobbs Act, was modeled on New York law.

New York law was modeled on the common law.

In 1865, the field code commentary carefully explained that the extortion provisions of that code was part of the property loss series: embezzlement, larceny, robbery and extortion.

Each requires a common law taking, a trespatory taking.

What is happening in this case is they are transposing a clear common law term, extortion, and making it into a modern statutory term, coercion.

And they're doing that by taking the concept "property", which starts out to mean tangible property.

You can interpret it to be intangible property.

You can interpret it to be intangible rights.

And finally, the right is not obtained but the other is deprived of it.

That particular process of interpretation is not reading a statute, it is redrafting it.

Unknown Speaker: Mr. Blakey--

--Mr. Blakey--

--Mr. Blakey, I thought we had a case before us that comes here on a motion to dismiss.

I mean that's what happened below, pleadings and a motion to dismiss.

And I thought that the petitioners... certainly Mr. Estrada, as amicus, said that there are other allegations of predicate acts other than extortion in the pleadings that would be sufficient to withstand a motion to dismiss.

Now, I assume all these things can be addressed in the courts below if it gets back, if it survives the motion to dismiss.

I don't understand why we're really addressing that here.

Mr. Blakey: Your Honor, it is correct to say that the lower court dismissed this under Rule 12.

But the lower court relied on materials outside of the pleading, to wit, in the RICO cases statement.

Unknown Speaker: Well, but do we have to do that?

I mean, do we have to do more than look at the pleadings and are petitioners correct that in those pleadings, at least, that there are allegations of arson and kidnapping and one thing and another, that fall within the--

Mr. Blakey: If you confine yourself to the four corners of the complaint.

Unknown Speaker: --Yeah.

Mr. Blakey: There's not one word about arson, kidnapping, murder, terrorism, or any of the violent acts being alleged here.

The underlying facts in this case are no more than, no less than--

Unknown Speaker: But is there not... Mr. Blakey, is there not the counterpart of a bill of particulars here in the RICO statements that were made?

Mr. Blakey: --Your Honor, the RICO cases statement that was filed was filed after two motions were made.

One was a motion for a more definite statement under Rule 12.

That function would be, really, to explain what was already in the complaint.

You can't amend a complaint by filing an answer under Rule 12.

It was also filed in response to a motion under Rule 16, as to control the docket, and the function of the RICO cases statement here is an admission by a party opponent.

And this judge asked, in February these plaintiffs, tell me your facts consistent with Rule 11 that you rely on.

Tell me the statutes that you rely on.

They answered that in the court below, and the only answer they gave was the Hobbs Act.

We didn't hear one word about murder.

That's outside the record.

About terrorism, which happens not to be a predicate offense... we didn't hear anything about bombing.

All we heard was these acts violate the Hobbs Act.

Unknown Speaker: But, Mr. Blakey.

Mr. Blakey: Not State extortion, not coercion, but the Hobbs Act.

Unknown Speaker: But, Mr. Blakey, just looking briefly at the district court's opinion, the ground of decision both in the district court and in the court of appeals was the lack of an economic motive, as I understand it.

Mr. Blakey: That's correct.

Unknown Speaker: And if that's correct, you win and there'd be no leave to amend and the ballgame is entirely over.

But if there is a dispute about fringe facts, I would suppose the district judge would let them amend and add these additional things that might not be a complete termination of litigation.

Mr. Blakey: Your Honor, this is after almost 5 years of discovery.

Unknown Speaker: It's a judgment for the district court.

Yes, but on the specific ground that we've granted certiorari to decide, that's... both lower courts decided that issue, and it's a very important issue.

Mr. Blakey: Whether or not they could amend is not in front of this Court, because they never made a motion to amend below.

Unknown Speaker: Because, they were... they lost on the ground of no economic motive.

Mr. Blakey: Let me turn, Your Honor, if I might, to the economic motive.

Unknown Speaker: I wish you would, because that's what we really granted cert to do... to consider.

[Laughter]

Mr. Blakey: This statute can be summed up in two words, illicit gain.

The concept of illicit gain pervades the statute, the title, the findings, the definitions, the operative language in the statute, the criminal remedies, the civil remedies, statutes with which it is in pari materia, and the legislative history.

The precise words used in each section varies with the purpose of each section, but this statute can be summed up in two words, illicit gain.

Look at the title.

This is the label on the bottle.

It says Racketeering Influenced and Corrupt Organizations.

Racketeer means extortion and fraud.

Corrupt means venal.

There right in the label of the bottle is the commercial notion of gain.

Look at the findings.

There are five findings in this statute: the last deals with legal defects; the first two deal with obtaining and utilizing illicit gain; the second two deal with the effects of it when you invest and weaken.

Look at the definitions in the statute.

The word "person" describes the class who can sue and be sued, or be indicted.

It is, by the definition of the statute, limited to people who can hold a beneficial interest in property.

Look at the concept of enterprise as it's found in the statute.

Enterprise is illustrated in the statute, not defined.

It is appropriate therefore to look to its common everyday meaning.

Its common everyday meaning is precisely that of a business venture.

Unknown Speaker: Do you agree, though, that if you look specifically at the text of 1262(a), (b), and (c), that in each of those instances it is certainly possible, consistently with those texts, for there to be an enterprise which is not itself devoted to economic gain?

Mr. Blakey: That's correct.

Unknown Speaker: Okay.

Mr. Blakey: My point here is precisely that of Justice Cardozo in American Knife.

To interpret this statute and understand it, let's take a look at its average case, not the exceptional case.

The average case within the statute is going to be a commercial enterprise engaging in commercial activity.

There are penumbra issues such as a government, and... which is clearly within the statute, and was recognized by Judge Kaufman in Anginelli, in the course of the Ivic opinion.

Nothing that we say here today should be understood to suggest that governments cannot be enterprises, but only when they engage in or they are utilized to engage in a pattern of racketeering activity that has a commercial dimension.

Unknown Speaker: But you're... again, I don't think you're doing this, but you're not suggesting that the only noncommercial example of an enterprise which might fit under (a), (b), or (c), would be a government.

Mr. Blakey: No, no.

Unknown Speaker: That is simply one--

Mr. Blakey: Sheerly that to respond to the Government.

Let me go through the text of the statute, the opportunity--

Unknown Speaker: --I don't understand your test, Mr. Blakey, and both the Government and the petitioner assert that it's... it's too confusing to work with.

What is your test about whether the requirement of commerciality, or whatever you want to call it, is satisfied?

Mr. Blakey: --Well, what I think you have to meet, Your Honor, is the language of the statute.

What... the phrase commercial dimension is something that pervades the statute as a whole.

You have to go... for example, to recover damages in this case, you must show injury to business or property.

The commercial dimension is the injury to business or property.

In the example of the criminal sanctions, the characteristic criminal sanction of this statute is a forfeiture.

If you take the profit out of crime, you presuppose a profit-making crime.

Unknown Speaker: Well, how do I know whether it's an enterprise within the meaning of the act?

Mr. Blakey: It's within the meaning of the act, which means you must sit it in the text as drafted.

Unknown Speaker: Of course.

Mr. Blakey: And what we would do--

Unknown Speaker: Tell me... yeah.

Mr. Blakey: --What we would do in... and let's turn right to section 1962(c).

Section 1962 says:

"Any person employed by or associated with an enterprise that conducts that enterprise's affairs by a pattern of racketeering activity. "

Wherein lies the commercial dimension?

The commercial dimension in that provision lies in the word "affairs".

Affairs means commercial or professional business, as a matter of plain meaning.

The set--

Unknown Speaker: Then, why don't you... why don't you go the... why don't you go the whole hog, then, and say that the... that it is an absolute requirement that the commercial enterprise in fact... that the enterprise be commercial, but you instead have an alternative definition.

You say, well, it would be all right if the acts themselves, if the predicate acts were commercial.

Why... why... if your argument is as strong as you say it is, why do you have this fallback position?

Mr. Blakey: --Your Honor, let me explain it this way.

We deal here with the set.

The set is activity.

The subset is racketeering activity.

The sub-subset is racketeering activity in affairs.

It is quite possible to have a noncommercial enterprise that engages in noncommercial racketeering activity, but not in its affairs.

The affairs is the word of limitation that confines 1962--

Unknown Speaker: The Union Trust Fund would be an example, I presume.

Mr. Blakey: --Yes, yes.

Unknown Speaker: Which is certainly one of the things they were concerned with.

Mr. Blakey: A benevolent association.

Unknown Speaker: Yeah.

Mr. Blakey: A benevolent association may very well have a large pension fund and the mob wants to take it over.

That's an enterprise.

But the reason they want to take it over and the way they must take it over to fall within RICO is by engaging in, for example, extortion.

And extortion is a property-obtaining notion.

It's not coercion, which is conduct-forcing notion.

And if there were any doubt about the text of the statute, and I think when you see the word (a), (b), and (c), there ought not be any doubt--

Unknown Speaker: Just a minute, Professor Blakey, let me just be sure I understand.

Has the word "affairs" been relied on in the opinions adopting your position?

Mr. Blakey: --No.

Unknown Speaker: So this is debateable.

Thank you.

Mr. Blakey: No.

No, Your Honor, wisdom comes so late in the affairs of man.

[Laughter]

That we'll not turn it down simply because it--

Unknown Speaker: That doesn't respond to the question Justice Scalia has raised too.

That's a concern, is that the Seventh Circuit's original position seemed rather clear, but the Second Circuit seemed over the years to have somewhat withdrawn from the economic test.

And it's kind of hard to know exactly what the test is.

Mr. Blakey: --Well, if you... a careful reading of the Seventh Circuit's opinion is that it adopted the Ivic-Bagaric-Ferguson line of opinions.

And what happened from Ivic to Bagaric to Ferguson, the use of the word motivation was thought, in retrospect, to be inappropriate because it might deal with subjective motive.

Therefore the test changed from Ivic to Bagaric and became an objective characterization.

And then the question of degree came up, which the Government has raised.

In Ferguson it was clarified to be any.

It's not a question of degree, it's a question of kind.

Unknown Speaker: The... one of the cases that troubles me if you're trying to think through this thing, say you've got a terrorist organization... because we're not just dealing with the abortion situation, but terrorism and other things.

And say that their ultimate motive is... the purpose of the crusade, whatever it is, but they're doing these activities to get some money to help finance purchasing guns that the IRA needs and that sort of thing.

Would the mixed motive qualify for... under your test?

Mr. Blakey: Yes.

And the cases are clear.

Precisely in Bagaric it was the same basic terrorist group that was involved in Ivic, but in Bagaric they were only... in Ivic they were only engaging in homicides.

In Bagaric they were engaging in classic extortion, it was property obtaining.

This statute has been successfully applied to terrorist groups where they engage in commercial activity, for example to raise money.

The Order, an antisemitic group in the West that went around... you may recall, killed Alan Berg simply because he was a Jew.

Unknown Speaker: Commercial is really not the right word.

I mean, you would also apply it to a... to a terrorist group that robs banks, I assume, wouldn't you?

Mr. Blakey: The word I would prefer--

Unknown Speaker: It seems strange to call that a commercial activity.

Mr. Blakey: --Your Honor, I'm kind of stuck with the language in the cases.

I would suggest to you that the two words that summarize the statute is illicit gain.

In fact, when you find out the sense in which they're using commercial motivation or mercenary purpose or financial purpose, what they, in fact, in the cases have said meets it is some kind of a gain, a robbery that produces money.

For example, in the Order case, they were robbing banks and they were prosecuted for robbing banks--

Unknown Speaker: But then you have to give away enterprise.

You have to give away your enterprise argument.

I mean, you can rely on affairs, but you've given away enterprise, because you--

Mr. Blakey: --Your Honor, I don't--

Unknown Speaker: --Don't pull a bunch of free enterprises and a bunch of bank robbers.

Enterprise zones is not... is not bank robbers.

Mr. Blakey: --Your Honor, I would prefer not to give up anything.

[Laughter]

What I'm suggesting to you, if I may borrow the language of this Court, is the interpretation of this statute is a holistic endeavor.

We've got to look at the entire text, the punctuation, the words, the structure.

Unknown Speaker: But what if a series of very dramatic illegal acts in support of a cause generate large contributions to the cause from third parties, would that provide the economic requirement that you're talking about?

Mr. Blakey: No.

Unknown Speaker: Even though they're publicized and deliberately done for that purpose?

Mr. Blakey: No.

Unknown Speaker: Why wouldn't it be?

Because it's indirect or in--

Mr. Blakey: Well--

Unknown Speaker: --Because it would be insufficient to get you over the RICO standing?

Mr. Blakey: --Well, there are two answers to it.

In this case that argument was made.

To show in this case economic motive, you can do it either in the predicate acts or in the enterprise.

The predicate act extortion requires the money to be obtained from the victim.

Now the question is if the money was obtained merely by donations from third parties, this is a situation where precisely in this record it was held, or it was found that there's no proximate cause relationship between third-party donations and--

Unknown Speaker: Well, I'm not suggesting the facts of this case are strong enough, but I was thinking of the hypothetical where they said we are going to burn down a church, or something, to demonstrate our strong feelings about this, and we hope everybody who reads about it will send in 100 to such and such an address.

Mr. Blakey: --As you move in that--

Unknown Speaker: Would that qualify--

Mr. Blakey: --As you move in that direction... and the question is how far you take me.

Unknown Speaker: --Yeah.

Mr. Blakey: You will make those third party donors coconspirators and aid-and-abettors.

They're the people who, in effect, are hiring this crime to be done.

Unknown Speaker: Even though they send the money in after the fact only?

Mr. Blakey: Well, it's quite possible to ratify a crime.

It's certainly possible to join the conspiracy afterwards.

Let me take two items in addition to those in the text.

I think this is a text-based argument.

It rises from a holistic view of the statute, of the actual language employed in each section.

Let's look and see whether this is confirmed... not independently established, but confirmed by the legislative history.

Put yourself back in 1970.

The issue that burned in this country then was not abortion, not animal rights, not fossil fuels, not fur and the fur industry, but the war in Vietnam.

This statute was proposed and it was objected to by the American Civil Liberties Union specifically on the grounds that the definition of racketeering activity was so wide open it might apply to the takeover of the Pentagon and to the takeover of the University at Columbia.

Congress immediately turned to narrow that definition, with a specific intent of avoiding the application of RICO to demonstrations.

Not abortion demonstrations: what they had in mind was the war in Vietnam.

And they selected... this is now the problem of set and subset again.

The set for this are all State and Federal crimes.

They didn't put them all in, they selected them.

And what was the principle of selection?

And this can be determined by looking at the statutes, not the legislative history.

Unknown Speaker: But the response to that concern was not any narrowing of this definition of enterprise which, on the face of it, is about as broad as you can get.

Includes any... they didn't... in response to the concern that you just mentioned, what was the change that was made?

Mr. Blakey: The change was not to the definition of enterprise.

But, Your Honor, enterprise sits in a context, and if you don't have a pattern of racketeering activity what good does it do to have an enterprise.

And what we're looking at now is what Congress' intention was in 1970.

They modified the definition of pattern of racketeering activity specifically to avoid the application of this statute to the demonstrations on the war in Vietnam.

Unknown Speaker: And what was the precise modification?

Mr. Blakey: They took the definition of racketeering activity, which included any crime dangerous to life, limb, or property... dangerous to life, limb, or property, which clearly would have fit this facts, and they moved it down to specific crimes.

And the specific crimes that they adopted was extortion, not coercion.

In 1961 this country had promulgated in the criminal law community the model penal code.

Anyone familiar with the vocabulary of the model penal code... and McLellan, Hruska, and Paff, the principal architects of this statute were familiar with the model penal code; they served on the Brown Commission... knew the difference between extortion and coercion.

When they put in extortion and leave out coercion--

Unknown Speaker: Yes, but--

--But that, it seems to me, contradicts your argument in which you pin your entire argument on the word "affairs".

Mr. Blakey: --Your Honor, this is holistically.

You have to look at every word in context.

I am--

Unknown Speaker: Well, and I've been meaning to add as a footnote that murder is included.

That's not necessarily an economic crime.

It usually isn't in fact--

Mr. Blakey: --If... when you read the legislative history closely, you see that the addition of some offenses... murder would be one, obstruction of justice would be another... was added for the instrumental role... not the direct role, but the instrumental role... role they play in economic affairs, not independent.

Unknown Speaker: --Why isn't it... why isn't it still the case that your... the point of your argument is that extortion should be construed narrowly so that it does not include coercion, but that is irrelevant to the question of what enterprise means.

Mr. Blakey: Your Honor, absolutely.

But what I'm suggesting to you is you cannot do this word by word.

You've got to do it line by line, text by text.

Unknown Speaker: No, but Congress... by the same token, Congress doesn't have to do the same thing three different ways.

And if, in fact, it was addressing the concerns that the ACLU raised by its definition of predicate offense, that is not a premise for saying that it therefore also intended enterprise to be narrowed in the way... with the limitation that you want to place on it.

Mr. Blakey: Your Honor, I think the... the limitation comes from the word (c).

It comes from (b).

It comes from (a).

Unknown Speaker: Well, I would certainly feel betrayed if I were one of the Senators who favored a broader statute and the ACLU came in with objections and I conceded well, okay, to meet your objections what we'll do is we'll narrow the crime; we'll just have certain types of crimes instead of other crimes.

And I thought that was the deal, and the ACLU says, yeah, that's good enough, okay, and then we all go home, and then it turns out that by narrowing the crimes I've also changed the meaning of the word "affairs".

Mr. Blakey: Your Honor.

Unknown Speaker: Or I've changed the meaning of the word "enterprise".

Mr. Blakey: Your Honor, this statute was--

Unknown Speaker: It seems to me a deal is a deal.

If that's what... if that's how they meant to narrow the statute, that ought to be narrow enough.

And the argument you must rely on, then, is that this is not extortion.

Mr. Blakey: --Your Honor, I want to rely on all the arguments--

Unknown Speaker: I know you do.

Mr. Blakey: --And let me... let me turn to another one.

Unknown Speaker: Before you leave this argument, though, you suggest that in response to the concern about the Vietnam protestors they drew up... drafted a rather narrow definition of racketeering activity.

Mr. Blakey: That's correct.

Unknown Speaker: The narrowed definition includes over 2 pages and lists lots of crimes, some of which do not have an economic motive such as some of the obscenity crimes.

So I don't know how that helps here.

Mr. Blakey: Obscenity was not in it, Your Honor, in 1970.

Unknown Speaker: Well, it's in it now.

Mr. Blakey: It's in it now, and maybe Congress was unwise in doing that.

[Laughter]

Let me turn to... but we're not here to argue that, fortunately.

Unknown Speaker: No, but I think it's inconsistent with the notion that they limit it in a way which definitely excluded everything except economic gain.

Mr. Blakey: Well, Your Honor, I think whatever 1970, it remains that no matter what they do when they introduce obscenity.

Let me turn... in other words, if obscenity comes in it doesn't change the meaning of the word "affairs".

Affairs means commercial or professional business, and it's the word of limitation in this context.

Let me turn, if I might, to the statutes in pari materia with this statute.

This statute was modeled on the antitrust statutes.

The antitrust statutes have as their purpose securing freedom in the marketplace.

RICO has as its purpose securing integrity in the marketplace.

When Congress adopted RICO in 1970, it had before it the subtle jurisprudence of this Court under the antitrust laws, and that subtle jurisprudence excludes political activity, it excludes labor activity, it... and we've learned since, in Claiborne Hardware, that it excludes protest activity.

If, in fact, Carrie Nation and the Anti-Saloon League wielding an ax in a saloon is not in restraint of trade, if William Letter heading up the American Association... American Federation of Hosiery Workers in a violent sitdown strike is not restraint of trade, if Medgar Evers and the NAACP in a sometimes violent civil rights boycott is not in restraint of trade, then I suggest to you Joe Scheidler and PLAN is not conducting the affairs in the sense of business or commercial.

Unknown Speaker: Mr. Blakey, I've been thinking about affairs, and it... if Congress wanted to convey the meaning you suggested, wouldn't it have said business?

Because affairs come in all sizes and shapes.

There are private affairs, there are family affairs.

Mr. Blakey: That's why, Your Honor--

Unknown Speaker: But wouldn't business fit much better if that's what Congress was trying to portray?

Mr. Blakey: --Your Honor, let me trace the legislative history at this point.

An earlier statute indeed used the word "business" and the reason the word "business" was dropped is because two statutes were merged.

Senator McLellan's original Syndicate bill, which was aimed at the underworld generally, Senator Hruska's Infiltration bills were aimed at the upper world.

Senator Hruska's bill said "business enterprise".

When those two bills were merged, had the statutory draftsman left the word "business" in there, you would have had the very real ambiguity this Court had to deal with in Turkette as to whether this meant legitimate business only.

The word "business" was dropped not to make it beyond business--

Unknown Speaker: And you don't think you can have legitimate and illegitimate affairs?

Mr. Blakey: --Your Honor--

[Laughter]

You certainly do.

The question is whether you have them in this statute in this context.

And the answer to that question is holistic and cannot be done by the abstract analysis of the word "affairs".

Look at it in context.

Unknown Speaker: Thank you... thank you, Mr. Blakey.

Ms. Clayton, you have 5 minutes remaining.

Rebuttal of Fay Clayton

Mr. Clayton: Thank you, Mr. Chief Justice, may it please the Court:

If I heard Mr. Blakey right, his argument began with the principle that the concept of illicit gain sums up the RICO statute.

I think in... Justice Ginsburg's question just a moment ago pointed out how inaccurate that statement really is.

But I would also like to remind the Court and Mr. Blakey that in his 1980 article which is relied upon by Mr. Scheidler in his brief, he said... and more important, this Court has said on many occasion that Congress knew how to put a limitation in RICO when it wanted to.

And if Congress wanted to limit RICO to crimes done for illicit gain, two words would have solved the problem and we wouldn't see the quagmire of issues like Mr. Blakey has been forced to address this morning.

The question... the argument that he makes raises so many questions that no one can answer.

Even the lower courts couldn't say... with all the various definitions they've come up with in Ivic, in Bagaric, which took away motive and gave dimension, it still doesn't answer the question of where we're supposed to look for this economic motive or dimension or gain.

Is it supposed to be in the crimes, in the enterprise, in the criminals themselves?

Congress knew how to put limits in RICO, and as this Court said in Russello, the short answer is that Congress did not write the statute that way.

It could have... certainly it could have limited enterprises to business enterprises.

It could have limited predicate acts to ones done for gain: murder for profit, arson for profit.

It didn't do that.

Affairs certainly doesn't imply the exclusion of illegitimate affairs any more... or noneconomic affairs any more than the arguments that this Court heard in Turkette made any sense.

It just doesn't wash.

Mr. Blakey's reliance on the antitrust laws is mystifying to me, because the antitrust laws for more than three-quarters of a century have taught that good motives do not save illegal acts.

And all the authorities, his reference to antitrust cases, are entirely apart from this case, because each and every one of them involved either petitioning or protected lawful speech.

Even the Seventh Circuit, which threw out... which upheld throwing out our complaint, recognized--

Unknown Speaker: Well, that may be, but I think the point he's using them for... and this statute is modeled after the treble damage actions in the antitrust laws.

What he's using them for is to show that in another area we have imported an extratextual limitation upon the statute.

Now for whatever reasons, First Amendment reasons, whatever reasons, the point is it is an extratextual limitation.

Mr. Clayton: --But, Your Honor, it was based on the text, the phrase "restraint of trade".

Restraint of trade was not a defined term in the antitrust--

Unknown Speaker: It restrains trade to have a grape boycott.

That certainly restrains trade.

Mr. Clayton: --Your Honor, going back almost a century, we know that when the antitrust laws were enacted, the word "restraint of trade" was a highly technical, highly legalistic term, and the Court had to infer what it meant.

Unknown Speaker: In any case, it was a limitation on what, by analogy, we would call the predicate acts, wasn't it?

Mr. Clayton: I'm sorry, Justice Souter, I didn't hear your question.

Unknown Speaker: The limitations that Mr. Blakey was referring to are those which, by analogy, we would refer to as limitations on the predicate acts which would suffice?

Mr. Clayton: It would... it would seem like that would be the limitation, but he--

Unknown Speaker: It certainly would not support the argument that... that enterprise... in this case, that enterprise has to be so limited.

Mr. Clayton: --Well, Your Honor, the antitrust laws don't exclude nonprofit enterprises.

I mean... or nonprofit businesses.

We have the... all the professional, the lawyers that we had, the medical association, the people who were the association saying plastic tube was dangerous, all these nonprofit associations, they were not--

Unknown Speaker: But they're acting for commercial motives,--

Mr. Clayton: --Not always, Your Honor.

In many cases the... in fact, there's never been a case, Your Honor, where the antitrust law has been limited... except this case, where the lower court... we had wished you had taken our antitrust issue too.

But the lower court was the first one in the country to ever say motives count.

The Eighth Circuit decision in Council of Defense had said exactly the opposite.

A purely political boycott there, and a peaceable one so we didn't invoke the First Amendment problems... that the Eighth Circuit said in 1920 and that had been good law ever since, that the fact that they did it purely for politics, they didn't like Mr. Hearst's pro-German sympathy and so they called for a major commercial boycott, not a consumer boycott, of his paper, that wasn't protected.

This is the first case that's ever--

Unknown Speaker: --Do you agree with that decision?

Mr. Clayton: --Absolutely, Your Honor.

I think it's right and I think to impose a requirement on the antitrust laws that if... that if they're done for another motive, it flies in the face of all of the antitrust case law which shows that purpose and effect on commerce is what counts.

Thank you very much, Your Honors.

Chief Justice Rehnquist: Thank you, Ms. Clayton.

The case is submitted.

Attribution:

The OYEZ Project

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