Byron White, Criminal Procedure, Lewis Powell, Majority, Warren Burger, William Rehnquist

Whitley v. Albers

Byron White, Criminal Procedure, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to decide what standard governs a prison inmate’s claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.

I

At the time he was injured, respondent Gerald Albers was confined in cellblock “A” of the Oregon State Penitentiary. Cellblock “A” consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.

At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary’s isolation and segregation facility. This incident could be seen from the cell windows in cellblock “A,” and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock “A,” ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped, but Officer Fitts was taken hostage. Klenk and other inmates then began breaking furniture and milling about.

Upon

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Whitfield v. United States

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist / By

Justice O’Connor delivered the opinion of the Court.

These cases present the question whether conviction for conspiracy to commit money laundering, in violation of 18 U. S. C. §1956(h), requires proof of an overt act in furtherance of the conspiracy. We hold that it does not.

I
In March 1999, a federal grand jury returned a 20-count indictment against petitioners and five codefendants. As relevant here, Count II of the indictment charged petitioners with conspiracy to launder money, in violation of §1956(h). The indictment described, in general terms, the “manner and means” used to accomplish the objects of the money laundering conspiracy, but it did not charge the defendants with the commission of any overt act in furtherance thereof.

At trial, the Government presented evidence that petitioners were members of the executive board of an entity known as Greater Ministries International Church (GMIC). GMIC operated a “gifting” program that took in more than $400 million between 1996 and 1999. Under that program, petitioners and others induced unwary investors to give money to GMIC with promises that investors would receive double their money back within a year and a half. Petitioners marketed the program throughout the country, claiming that GMIC would generate returns on investors’ “gifts” through overseas investments in gold and diamond mining, commodities, and offshore banks. Investors were told that GMIC would use some of the profits for philanthropic purposes. Most of these claims were false. GMIC made none of the promised investments, had no assets, and gave virtually nothing to charity. Many participants in GMIC’s program received little or no return on their money, and their investments indeed largely turned out to be “gifts” to GMIC representatives. Petitioners together allegedly received more than $1.2 million in commissions on the money they solicited.

At the close of the evidence, petitioners asked the District Court to instruct the jury that the Government was required to prove beyond a reasonable doubt that at least one of the co-conspirators had committed an overt act in furtherance of the money laundering conspiracy. The court denied that request, and the jury returned a verdict of guilty on the money laundering conspiracy charge.

The Eleventh Circuit affirmed petitioners’ convictions, holding, in relevant part, that the jury instructions approved by the District Court were proper because §1956(h) does not require proof of an overt act. 349 F. 3d 1320, 1324 (2003). The Court of Appeals noted that some of its sister Circuits had taken the opposite position. Id., at 1323 (citing United States v. Wilson, 249 F. 3d 366, 379 (CA5 2001); United States v. Hildebrand, 152 F. 3d 756, 762 (CA8 1998)). It concluded, however, that those decisions were erroneously based on case law interpreting the general conspiracy statute, 18 U. S. C. §371, which, unlike §1956(h), expressly includes an overt-act requirement. 349 F. 3d, at 1323. The Eleventh Circuit instead relied upon United States v. Shabani, 513 U. S. 10 (1994), where we held that the drug conspiracy statute, 21 U. S. C. §846, does not require proof of an overt act. Because the language of 18 U. S. C. §1956(h) and 21 U. S. C. §846 is “nearly identical,” the Eleventh Circuit found itself compelled to follow the reasoning of Shabani in holding that §1956(h), too, requires no proof of an overt act. 349 F. 3d, at 1323–1324. We granted certiorari to resolve the conflict among the Circuits on the question presented, 542 U. S. ___ (2004), and we now affirm the decision below.

II
Congress enacted 18 U. S. C. §§1956 and 1957 (2000 ed. and Supp. II) as part of the Money Laundering Control Act of 1986, Pub. L. 99–570, 100 Stat. 3207–18. Section 1956 penalizes the knowing and intentional transportation or transfer of monetary proceeds from specified unlawful activities, while §1957 addresses transactions involving criminally derived property exceeding $10,000 in value. As originally enacted, neither section included a conspiracy provision. Accordingly, the Government relied on the general conspiracy statute, 18 U. S. C. §371, to prosecute conspiracies to commit the offenses set forth in §§1956 and 1957. In 1992, however, Congress enacted the money laundering conspiracy provision at issue in these cases, now codified at 18 U. S. C. §1956(h). See Annunzio-Wylie Anti-Money Laundering Act, Pub. L. 102–550, §1530, 106 Stat. 4066. Section 1956(h) provides: “Any person who conspires to commit any offense defined in [§1956] or section 1957 shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.”

In Shabani, we addressed whether the nearly identical language of the drug conspiracy statute, 21 U. S. C. §846, requires proof of an overt act. See ibid. (“Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy”). We held that it does not, relying principally upon our earlier decisions in Nash v. United States, 229 U. S. 373 (1913), and Singer v. United States, 323 U. S. 338 (1945). See Shabani, supra, at 13–14. In each of those cases, the Court held that, where Congress had omitted from the relevant conspiracy provision any language expressly requiring an overt act, the Court would not read such a requirement into the statute. See Singer, supra, at 340 (Selective Training and Service Act of 1940); Nash, supra, at 378 (Sherman Act).

As we explained in Shabani, these decisions “follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, 502 U. S. 301, 307–308 (1992). We have consistently held that the common law understanding of conspiracy ‘does not make the doing of any act other than the act of conspiring a condition of liability.’ ” 513 U. S., at 13–14 (quoting Nash, supra, at 378). In concluding that the drug conspiracy statute in Shabani did not require proof of an overt act, we found instructive the distinction between that statute and the general conspiracy statute, §371 , which supersedes the common law rule by expressly including an overt-act requirement. 513 U. S., at 14. See 18 U. S. C. §371 (“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both” (emphasis added)).

Shabani distilled the governing rule for conspiracy statutes as follows: “ ‘ Nash and Singer give Congress a formulary: by choosing a text modeled on §371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U. S. C. §1 [which, like 21 U. S. C. §846, omits any express overt-act requirement], it dispenses with such a requirement.’ ” 513 U. S., at 14 (quoting United States v. Sassi, 966 F. 2d 283, 284 (CA7 1992)). This rule dictates the outcome in the instant cases as well: Because the text of §1956(h) does not expressly make the commission of an overt act an element of the conspiracy offense, the Government need not prove an overt act to obtain a conviction.

III
Petitioners argue that the rule that governed Shabani is inapplicable here, because §1956(h) does not establish a new conspiracy offense; rather, they say, it merely increases the penalty for conviction of a money laundering conspiracy under §371. In other words, as we understand their argument, petitioners contend that the Government must continue to prosecute money laundering conspiracies under §371, but that §1956(h) now provides enhanced penalties for conviction. Since §371 contains an overt act requirement, the argument goes, the Government must prove an overt act in prosecutions ostensibly brought under §1956(h). This reading of §1956(h) is untenable for two principal reasons. First, petitioners concede—as they must—that §1956(h)’s text is sufficient to establish an offense. Indeed, its language is nearly identical to the drug conspiracy statute at issue in Shabani, which indisputably created an offense. Second, petitioners apparently read §1956(h) to supply an enhanced penalty for violation of §371 in cases where the object of the conspiracy is to violate the substantive money laundering offenses in §§1956(a) and 1957. But the text of §1956(h) fails to provide any cross-reference to §371. Mere use of the word “conspires” surely is not enough to establish the necessary link between these two separate statutes. In short, if Congress had intended to create the scheme petitioners envision, it would have done so in clearer terms.

Petitioners seek support for their construction of §1956(h) in the provision’s legislative history. They contend that this history contains no indication that Congress meant to create a new offense or to eliminate the pre-existing overt-act requirement for money laundering conspiracy prosecutions that hitherto had been brought under §371. They say that the history instead shows that §1956(h) was intended only to raise the penalty for money laundering conspiracy from the 5-year maximum sentence under §371 to the greater maximums available for substantive money laundering offenses under §§1956(a) and 1957. Petitioners also point out that, when Congress enacted §1956(h), it did so under the title “ Penalty for Money Laundering Conspiracies,” 106 Stat., at 4066 (emphasis added). Had Congress wanted to enact an “offense” provision, they argue, it would have titled it accordingly.

Because the meaning of §1956(h)’s text is plain and unambiguous, we need not accept petitioners’ invitation to consider the legislative history. But even were we to do so, we would reach the same conclusion. It is undisputed that Congress intended §1956(h) to increase the penalties for money laundering conspiracies. The provision’s text makes clear that Congress did so precisely by establishing a new offense. Given the clarity of the text, mere silence in the legislative history cannot justify reading an overt-act requirement, or a cross-reference to §371, into §1956(h). See, e.g., United States v. Wells, 519 U. S. 482, 496–497 (1997) (refusing to read a materiality element into the statute at issue based on silence in the legislative history); Harrison v. PPG Industries, Inc., 446 U. S. 578, 592 (1980) (“[I]t would be a strange canon of statutory construction that would require Congress to state in committee reports or elsewhere in its deliberations that which is obvious on the face of a statute”). Nor do we find it significant that Congress chose to label §1956(h) a “penalty” rather than an “offense” provision. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“ ‘[t]he title of a statute … cannot limit the plain meaning of the text’ ”); Castillo v. United States, 530 U. S. 120, 125 (2000) (although “[t]he title of the entirety of §924 is ‘Penalties’ … at least some portion of §924 … creates, not penalty enhancements, but entirely new crimes”).

Petitioners’ legislative history argument is particularly inapt here, we might add, because Congress is presumed to have knowledge of the governing rule described in Shabani. While Shabani was decided two years after §1956(h) was enacted, the rule it articulated was established decades earlier in Nash and Singer. These decisions establish a “formulary” that provides clear and predictable guidance to Congress. As the Government points out, Congress has included an express overt-act requirement in at least 22 other current conspiracy statutes, clearly demonstrating that it knows how to impose such a requirement when it wishes to do so. See Brief for United States 11, and n. 5 (citing statutes). Where Congress has chosen not to do so, we will not override that choice based on vague and ambiguous signals from legislative history.

We conclude by addressing two arguments raised by petitioners relating to the text and structure of §1956 as a whole. First, petitioners note that Congress placed each of the three substantive money laundering offenses in §1956 under subsection (a). Had the drafters intended §1956(h) to create a new offense, petitioners contend, they would have placed it with the other offenses in subsection (a) instead of in its own separate subsection. We fail to see why that should be so. The three offenses placed in subsection (a) share a common feature: All are substantive money-laundering crimes. We find nothing remarkable in Congress’ decision to place a qualitatively different conspiracy offense provision in a separate subsection.

Petitioners’ second textual argument is based on §1956(i) (2000 ed., Supp. II), a venue provision added to the statute in 2001. See USA PATRIOT ACT, Pub. L. 107–56, §1004, 115 Stat. 392. Section 1956(i)(2) (2000 ed., Supp. II) provides that “[a] prosecution for an attempt or conspiracy offense under [§1956 or §1957] may be brought in the district where venue would lie for the completed offense under [§1956(i)(1)], or in any other district where an act in furtherance of the attempt or conspiracy took place.” Petitioners contend that, by setting venue in the district where an overt act took place, Congress confirmed what (petitioners say) was the majority view of the Courts of Appeals at the time of §1956(i)’s enactment: that proof of an overt act was required under §1956(h). Moreover, petitioners argue, setting venue where an overt act took place makes little sense if such an act is not an element of the offense.

This argument fails for several reasons. As a preliminary matter, petitioners assume that §1956(i) is the sole provision setting venue in money laundering conspiracy prosecutions. Although we need not definitively construe that provision here, we note that its language appears permissive rather than exclusive—§1956(i) says a conspiracy prosecution “ may be brought” in a district meeting the specified criteria. (Emphasis added.) This suggests that the provision serves to supplement, rather than supplant, the default venue rule: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed. Rule Crim. Proc. 18. For a conspiracy prosecution under the common law rule, the district in which the unlawful agreement was reached would satisfy this default venue rule. See Hyde v. Shine, 199 U. S. 62, 76 (1905).

But even if we assume, for the sake of argument, that §1956(i) is an exclusive venue provision, petitioners’ argument still fails. The provision authorizes two alternative venues for money laundering conspiracy prosecutions: (1) the district in which venue would lie if the completed substantive money laundering offense had been accomplished, or (2) any district in which an overt act in furtherance of the conspiracy was committed. The first venue option clearly does not require that any overt act have been committed, and the Government therefore need not allege or prove such an act for venue to be properly established under this portion of §1956(i). As to the second venue option, this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 252 (1940); United States v. Trenton Potteries Co., 273 U. S. 392, 402–404 (1927). In light of this longstanding rule, §1956(i)(2)’s authorization of venue in a district where an overt act took place cannot be taken to indicate that Congress deemed such an act necessary for conviction under §1956(h). Instead, Congress appears merely to have confirmed the availability of this alternative venue option in money laundering conspiracy cases.

* * *

For the reasons set forth above, we hold that conviction for conspiracy to commit money laundering, in violation of 18 U. S. C. §1956(h), does not require proof of an overt act in furtherance of the conspiracy. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Byron White, Judicial Power, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Bowsher v. Merck & Co. Inc

Byron White, Judicial Power, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price [ Footnote 1 ] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor’s records of direct costs, but not records of indirect costs.

I

In 1973, Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans’ Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising. [ Footnote 2 ] The pharmaceutical products supplied under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts.

As required by 10 U.S.C. § 2313(b) and 65 Stat. 700, 41 U.S.C. § 254(c), [ Footnote 3

Byron White, Federal Taxation, Lewis Powell, Majority, Warren Burger, William Brennan, William Rehnquist

Hillsboro Nat’l Bank v. Commissioner

Byron White, Federal Taxation, Lewis Powell, Majority, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

These consolidated cases present the question of the applicability of the tax benefit rule to two corporate tax situations: the repayment to the shareholders of taxes for which they were liable, but that were originally paid by the corporation, and the distribution of expensed assets in a corporate liquidation. We conclude that, unless a nonrecognition provision of the Internal Revenue Code prevents it, the tax benefit rule ordinarily applies to require the inclusion of income when events occur that are fundamentally inconsistent with an earlier deduction. Our examination of the provisions granting the deductions and governing the liquidation in these cases leads us to hold that the rule requires the recognition of income in the case of the liquidation, but not in the case of the tax refund.

I

In No. 81-485, Hillsboro National Bank v. Commissioner, the petitioner, Hillsboro National Bank, is an incorporated bank doing business in Illinois. Until 1970, Illinois imposed a property tax on shares held in incorporated banks. Ill.Rev.Stat., ch. 120, § 557 (1971). Banks, required to retain earnings sufficient to cover the taxes, § 558, customarily paid the taxes for the shareholders. Under § 164(e) of the Internal Revenue Code of 1954, 26 U.S.C. § 164(e), [ Footnote 1 ] the bank was allowed a deduction for the amount of the tax, but the shareholders were not. In 1970, Illinois amended its Constitution to prohibit ad valorem taxation

Byron White, First Amendment, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan

Minneapolis Star v. Minnesota Comm’r

Byron White, First Amendment, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan / By

JUSTICE O’CONNOR delivered the opinion of the Court.*

This case presents the question of a State’s power to impose a special tax on the press and, by enacting exemptions, to limit its effect to only a few newspapers.

I

Since 1967, Minnesota has imposed a sales tax on most sales of goods for a price in excess of a nominal sum. [ Footnote 1 ] Act of June 1, 1967, ch. 32, Art. XIII, § 2, 1967 Minn. Laws 2143, 2179, codified at Minn.Stat. § 297A.02 (1982). In general, the tax applies only to retail sales. Ibid. An exemption for industrial and agricultural users shields from the tax sales of components to be used in the production of goods that will themselves be sold at retail. § 297A.25(1)(h). As part of this general system of taxation and in support of the sales tax, see Minn.Code of Agency Rules, Tax S & U 300 (1979), Minnesota also enacted a tax on the “privilege of using, storing or consuming in Minnesota tangible personal property.” This use tax applies to any nonexempt tangible personal property unless the sales tax was paid on the sales price. Minn.Stat. § 297A.14 (1982). Like the classic use tax, this use tax protects the State’s sales tax by eliminating the residents’ incentive to travel to States with lower sales taxes to buy goods, rather than buying them in Minnesota. §§ 297A.14, 297A.24.

The appellant, Minneapolis Star & Tribune Co., “Star Tribune,” is the publisher of a morning newspaper and an evening newspaper (until 1982) in Minneapolis. From 1967 until 1971,

Byron White, Criminal Procedure, John Paul Stevens, Lewis Powell, Majority, William Rehnquist

United States v. Frady

Byron White, Criminal Procedure, John Paul Stevens, Lewis Powell, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Rule 52(b) of the Federal Rules of Criminal Procedure permits a criminal conviction to be overturned on direct appeal for “plain error” in the jury instructions, even if the defendant failed to object to the erroneous instructions before the jury retired, as required by Rule 30. In this case, we are asked to decide whether the same standard of review applies on a collateral challenge to a criminal conviction brought under 28 U.S.C. § 2255.

I

A

Joseph Frady, the respondent, does not dispute that, 19 years ago, he and Richard Gordon killed Thomas Bennett in the front room of the victim’s house in Washington, D.C. Nonetheless, because the resolution of this case depends on what the jury learned about Frady’s crime, we must briefly recount what happened, as told by the witnesses at Frady’s trial and summarized by the Court of Appeals. See Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (en banc) ( Frady I ), cert. denied, 382 U.S. 909 (1965).

The events leading up to the killing began at about 4:30 p.m. on March 13, 1963, when two women saw Frady drive slowly by Bennett’s house in an old car. Later, at about 7:00 p.m., Frady, accompanied by Richard Gordon and Gordon’s friend, Elizabeth Ryder, returned to the same block. On this second trip, Ryder overheard Frady say “something about that is the house over there,” at which point Frady and Gordon looked in the direction of the victim’s house.

After reconnoitering Bennett’s

Concurrence, Judicial Power

Elk Grove Unified School Dist. v. Newdow

Concurrence, Judicial Power / By

Justice O’Connor, concurring in the judgment.
I join the concurrence of The Chief Justice in full. Like him, I would follow our policy of deferring to the Federal Courts of Appeals in matters that involve the interpretation of state law, see Bowen v. Massachusetts, 487 U. S. 879 (1988), and thereby conclude that the respondent does have standing to bring his constitutional claim before a federal court. Like The Chief Justice, I believe that we must examine those questions, and, like him, I believe that petitioner school district’s policy of having its teachers lead students in voluntary recitations of the Pledge of Allegiance does not offend the Establishment Clause. But while the history presented by The Chief Justice illuminates the constitutional problems this case presents, I write separately to explain the principles that guide my own analysis of the constitutionality of that policy.
As I have said before, the Establishment Clause “cannot easily be reduced to a single test. There are different categories of Establishment Clause cases, which may call for different approaches.” Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 720 (1994) (O’Connor, J., concurring). When a court confronts a challenge to government-sponsored speech or displays, I continue to believe that the endorsement test “captures the essential command of the Establishment Clause, namely, that government must not make a person’s religious beliefs relevant to his or her standing in the political community by conveying a message ‘that religion or a particular religious belief is favored or preferred.’ ” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 627 (1989) (opinion of O’Connor, J.) (quoting Wallace v. Jaffree, 472 U. S. 38, 70 (1985) (O’Connor, J., concurring in judgment)). In that context, I repeatedly have applied the endorsement test, Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 772–773 (1995) (opinion of O’Connor, J.) (display of a cross in a plaza next to state capitol); Allegheny, supra, at 625 (display of crèche in county courthouse and menorah outside city and county buildings); Wallace, supra, at 69 (statute authorizing a meditative moment of silence in classrooms); Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O’Connor, J., concurring) (inclusion of Nativity scene in city government’s Christmas display), and I would do so again here.
Endorsement, I have explained, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Ibid. In order to decide whether endorsement has occurred, a reviewing court must keep in mind two crucial and related principles.
First, because the endorsement test seeks “to identify those situations in which government makes adherence to a religion relevant … to a person’s standing in the political community,” it assumes the viewpoint of a reasonable observer. Pinette, supra, at 772 (internal quotation marks omitted). Given the dizzying religious heterogeneity of our Nation, adopting a subjective approach would reduce the test to an absurdity. Nearly any government action could be overturned as a violation of the Establishment Clause if a “heckler’s veto” sufficed to show that its message was one of endorsement. See Pinette, 515 U. S. at 780 (“There is always someone who, with a particular quantum of knowledge, reasonably might perceive a particular action as an endorsement of religion”). Second, because the “reasonable observer” must embody a community ideal of social judgment, as well as rational judgment, the test does not evaluate a practice in isolation from its origins and context. Instead, the reasonable observer must be deemed aware of the history of the conduct in question, and must understand its place in our Nation’s cultural landscape. See id., at 781.
The Court has permitted government, in some instances, to refer to or commemorate religion in public life. See , e.g., Pinette, supra ; Allegheny, supra ; Lynch, supra ; Marsh v. Chambers, 463 U. S. 783 (1983) . While the Court’s explicit rationales have varied, my own has been consistent; I believe that although these references speak in the language of religious belief, they are more properly understood as employing the idiom for essentially secular purposes. One such purpose is to commemorate the role of religion in our history. In my view, some references to religion in public life and government are the inevitable consequence of our Nation’s origins. Just as the Court has refused to ignore changes in the religious composition of our Nation in explaining the modern scope of the Religion Clauses, see , e.g., Wallace, supra, at 52–54 (even if the Religion Clauses were originally meant only to forestall intolerance between Christian sects, they now encompass all forms of religious conscience), it should not deny that our history has left its mark on our national traditions. It is unsurprising that a Nation founded by religious refugees and dedicated to religious freedom should find references to divinity in its symbols, songs, mottoes, and oaths.* Eradicating such references would sever ties to a history that sustains this Nation even today. See Allegheny, supra, at 623 (declining to draw lines that would “sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens”).
Facially religious references can serve other valuable purposes in public life as well. Twenty years ago, I wrote that such references “serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Lynch, supra, at 692–693 (O’Connor, J., concurring). For centuries, we have marked important occasions or pronouncements with references to God and invocations of divine assistance. Such references can serve to solemnize an occasion instead of to invoke divine provenance. The reasonable observer discussed above, fully aware of our national history and the origins of such practices, would not perceive these acknowledgments as signifying a government endorsement of any specific religion, or even of religion over non-religion.
There are no de minimis violations of the Constitution— no constitutional harms so slight that the courts are obliged to ignore them. Given the values that the Establishment Clause was meant to serve, however, I believe that government can, in a discrete category of cases, acknowledge or refer to the divine without offending the Constitution. This category of “ceremonial deism” most clearly encompasses such things as the national motto (“In God We Trust”), religious references in traditional patriotic songs such as the Star-Spangled Banner, and the words with which the Marshal of this Court opens each of its sessions (“God save the United States and this honorable Court”). See Allegheny, 492 U. S., at 630 (opinion of O’Connor, J.). These references are not minor trespasses upon the Establishment Clause to which I turn a blind eye. Instead, their history, character, and context prevent them from being constitutional violations at all.
This case requires us to determine whether the appearance of the phrase “under God” in the Pledge of Allegiance constitutes an instance of such ceremonial deism. Although it is a close question, I conclude that it does, based on my evaluation of the following four factors.
History and UbiquityThe constitutional value of ceremonial deism turns on a shared understanding of its legitimate nonreligious purposes. That sort of understanding can exist only when a given practice has been in place for a significant portion of the Nation’s history, and when it is observed by enough persons that it can fairly be called ubiquitous. SeeLynch, 465 U. S., at 693. By contrast, novel or uncommon references to religion can more easily be perceived as government endorsements because the reasonable observer cannot be presumed to be fully familiar with their origins. As a result, in examining whether a given practice constitutes an instance of ceremonial deism, its “history and ubiquity” will be of great importance. As I explained inAllegheny,supra, at 630–631:
“Under the endorsement test, the ‘history and ubiquity’ of a practice is relevant not because it creates an ‘artificial exception’ from that test. On the contrary, the ‘history and ubiquity’ of a practice is relevant because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.”
Fifty years have passed since the words “under God” were added, a span of time that is not inconsiderable given the relative youth of our Nation. In that time, the Pledge has become, alongside the singing of the Star-Spangled Banner, our most routine ceremonial act of patriotism; countless schoolchildren recite it daily, and their religious heterogeneity reflects that of the Nation as a whole. As a result, the Pledge and the context in which it is employed are familiar and nearly inseparable in the public mind. No reasonable observer could have been surprised to learn the words of the Pledge, or that petitioner school district has a policy of leading its students in daily recitation of the Pledge.
It cannot be doubted that “no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it. Yet an unbroken practice… is not something to be lightly cast aside.” Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 678 (1970). And the history of a given practice is all the more relevant when the practice has been employed pervasively without engendering significant controversy. In Lynch, where we evaluated the constitutionality of a town Christmas display that included a crèche, we found relevant to the endorsement question the fact that the display had “apparently caused no political divisiveness prior to the filing of this lawsuit” despite its use for over 40 years. See 465 U. S., at 692–693. Similarly, in the 50 years that the Pledge has been recited as it is now, by millions of children, this was, at the time of its filing, only the third reported case of which I am aware to challenge it as an impermissible establishment of religion. See Sherman v. Community Consol. School Dist. 21, 980 F. 2d 437 (CA7 1992); Smith v. Denny, 280 F. Supp. 651 (ED Cal. 1968). The citizens of this Nation have been neither timid nor unimaginative in challenging government practices as forbidden “establishments” of religion. See, e.g., Altman v. Bedford Central School Dist., 245 F. 3d 49 (CA2 2001) (challenging, among other things, reading of a story of the Hindu deity Ganesha in a fourth-grade classroom); Alvarado v. San Jose, 94 F. 3d 1223 (CA9 1996) (challenge to use of a sculpture of the Aztec deity Quetzalcoatl to commemorate Mexican contributions to city culture); Peloza v. Capistrano Unified School Dist., 37 F. 3d 517 (CA9 1994) (high school biology teacher’s challenge to requirement that he teach the concept of evolution); Fleischfresser v. Directors of School Dist. 200, 15 F. 3d 680 (CA7 1994) (challenge to school supplemental reading program that included works of fantasy involving witches, goblins, and Halloween); United States v. Allen, 760 F. 2d 447, 449 (CA2 1985) (challenge to conviction for vandalism of B–52 bomber, based on theory that property-protection statute established a “ ‘national religion of nuclearism … in which the bomb is the new source of salvation’ ”); Grove v. Mead School Dist. No. 354, 753 F. 2d 1528 (CA9 1985) (challenge to use of The Learning Tree, by Gordon Parks, in high school English literature class); Crowley v. Smithsonian Inst., 636 F. 2d 738 (CADC 1980) (challenge to museum display that explained the concept of evolution). Given the vigor and creativity of such challenges, I find it telling that so little ire has been directed at the Pledge.
Absence of worship or prayer“[O]ne of the greatest dangers to the freedom of the individual to worship in his own way [lies] in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”Engelv.Vitale,370 U. S. 421, 429 (1962). Because of this principle, only in the most extraordinary circumstances could actual worship or prayer be defended as ceremonial deism. We have upheld only one such prayer against Establishment Clause challenge, and it was supported by an extremely long and unambiguous history. SeeMarshv.Chambers,463 U. S. 783(1983) (upholding Nebraska Legislature’s 200-year-old practice of opening its sessions with a prayer offered by a chaplain). Any statement that has as its purpose placing the speaker or listener in a penitent state of mind, or that is intended to create a spiritual communion or invoke divine aid, strays from the legitimate secular purposes of solemnizing an event and recognizing a shared religious history.Santa Fe Independent School Dist.v.Doe,530 U. S. 290, 309 (2000) (“[T]he use of an invocation to foster … solemnity is impermissible when, in actuality, it constitutes [state-sponsored] prayer”).
Of course, any statement can be imbued by a speaker or listener with the qualities of prayer. But, as I have explained, the relevant viewpoint is that of a reasonable observer, fully cognizant of the history, ubiquity, and context of the practice in question. Such an observer could not conclude that reciting the Pledge, including the phrase “under God,” constitutes an instance of worship. I know of no religion that incorporates the Pledge into its canon, nor one that would count the Pledge as a meaningful expression of religious faith. Even if taken literally, the phrase is merely descriptive; it purports only to identify the United States as a Nation subject to divine authority. That cannot be seen as a serious invocation of God or as an expression of individual submission to divine authority. Cf. Engel, supra, at 424 (describing prayer as “a solemn avowal of faith and supplication for the blessing of the Almighty”). A reasonable observer would note that petitioner school district’s policy of Pledge recitation appears under the heading of “Patriotic Observances,” and the California law which it implements refers to “appropriate patriotic exercises.” Cal. Educ. Code §52720. Petitioner school district also employs teachers, not chaplains or religious instructors, to lead its students’ exercise; this serves as a further indication that it does not treat the Pledge as a prayer. Cf. Lee v. Weisman, 505 U. S. 577, 594 (1992) (reasoning that a graduation benediction could not be construed as a de minimis religious exercise without offending the rabbi who offered it).
It is true that some of the legislators who voted to add the phrase “under God” to the Pledge may have done so in an attempt to attach to it an overtly religious message. See H. R. Rep. No. 1693, 83d Cong., 2d Sess., pp. 2-3. But their intentions cannot, on their own, decide our inquiry. First of all, those legislators also had permissible secular objectives in mind—they meant, for example, to acknowledge the religious origins of our Nation’s belief in the “individuality and the dignity of the human being.” Id., at 1. Second—and more critically—the subsequent social and cultural history of the Pledge shows that its original secular character was not transformed by its amendment. In School Dist. of Abington Township v. Schempp, 374 U. S. 203 (1963), we explained that a government may initiate a practice “for the impermissible purpose of supporting religion” but nevertheless “retai[n] the la[w] for the permissible purpose of furthering overwhelmingly secular ends.” Id., at 263–264 (citing McGowan v. Maryland, 366 U. S. 420 (1961)). Whatever the sectarian ends its authors may have had in mind, our continued repetition of the reference to “one Nation under God” in an exclusively patriotic context has shaped the cultural significance of that phrase to conform to that context. Any religious freight the words may have been meant to carry originally has long since been lost. See Lynch, 465 U. S., at 716 (Brennan, J., dissenting) (suggesting that the reference to God in the Pledge might be permissible because it has “lost through rote repetition any significant religious content”).
Absence of reference to particular religion“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”Larsonv.Valente,456 U. S. 228, 244 (1982). While general acknowledgments of religion need not be viewed by reasonable observers as denigrating the nonreligious, the same cannot be said of instances “where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ.”Weisman,supra,at 641 (Scalia, J., dissenting). As a result, no religious acknowledgment could claim to be an instance of ceremonial deism if it explicitly favored one particular religious belief system over another.
The Pledge complies with this requirement. It does not refer to a nation “under Jesus” or “under Vishnu,” but instead acknowledges religion in a general way: a simple reference to a generic “God.” Of course, some religions— Buddhism, for instance—are not based upon a belief in a separate Supreme Being. See Brief for Buddhist Temples, Centers, and Organizations as Amicus Curiae at 15–16. But one would be hard pressed to imagine a brief solemnizing reference to religion that would adequately encompass every religious belief expressed by any citizen of this Nation. The phrase “under God,” conceived and added at a time when our national religious diversity was neither as robust nor as well recognized as it is now, represents a tolerable attempt to acknowledge religion and to invoke its solemnizing power without favoring any individual religious sect or belief system.
Minimal religious contentA final factor that makes the Pledge an instance of ceremonial deism, in my view, is its highly circumscribed reference to God. In most of the cases in which we have struck down government speech or displays under the Establishment Clause, the offending religious content has been much more pervasive. See,e.g.,Weisman,supra, at 581–582 (prayers involving repeated thanks to God and requests for blessings). Of course, a ceremony cannot avoid Establishment Clause scrutiny simply by avoiding an explicit mention of God. SeeWallacev.Jaffree,472 U. S. 38(1985) (invalidating Alabama statute providing moment of silence for meditation or voluntary prayer). But the brevity of a reference to religion or to God in a ceremonial exercise can be important for several reasons. First, it tends to confirm that the reference is being used to acknowledge religion or to solemnize an event rather than to endorse religion in any way. Second, it makes it easier for those participants who wish to “opt out” of language they find offensive to do so without having to reject the ceremony entirely. And third, it tends to limit the ability of government to express a preference for one religious sect over another.
The reference to “God” in the Pledge of Allegiance qualifies as a minimal reference to religion; respondent’s challenge focuses on only two of the Pledge’s 31 words. Moreover, the presence of those words is not absolutely essential to the Pledge, as demonstrated by the fact that it existed without them for over 50 years. As a result, students who wish to avoid saying the words “under God” still can consider themselves meaningful participants in the exercise if they join in reciting the remainder of the Pledge.
I have framed my inquiry as a specific application of the endorsement test by examining whether the ceremony or representation would convey a message to a reasonable observer, familiar with its history, origins, and context, that those who do not adhere to its literal message are political outsiders. But consideration of these factors would lead me to the same result even if I were to apply the “coercion” test that has featured in several opinions of this Court. Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000); Lee v. Weisman, 505 U. S. 577 (1992).
The coercion test provides that, “at a minimum … government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’ ” Id., at 586 (quoting Lynch, supra, at 678). Any coercion that persuades an onlooker to participate in an act of ceremonial deism is inconsequential, as an Establishment Clause matter, because such acts are simply not religious in character. As a result, symbolic references to religion that qualify as instances of ceremonial deism will pass the coercion test as well as the endorsement test. This is not to say, however, that government could overtly coerce a person to participate in an act of ceremonial deism. Our cardinal freedom is one of belief; leaders in this Nation cannot force us to proclaim our allegiance to any creed, whether it be religious, philosophic, or political. That principle found eloquent expression in a case involving the Pledge itself, even before it contained the words to which respondent now objects. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943) (Jackson, J.). The compulsion of which Justice Jackson was concerned, however, was of the direct sort—the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree. It would betray its own principles if it did; no robust democracy insulates its citizens from views that they might find novel or even inflammatory.
* * *
Michael Newdow’s challenge to petitioner school district’s policy is a well-intentioned one, but his distaste for the reference to “one Nation under God,” however sincere, cannot be the yardstick of our Establishment Clause inquiry. Certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty. It would be ironic indeed if this Court were to wield our constitutional commitment to religious freedom so as to sever our ties to the traditions developed to honor it.

Notes
* Note, for example, the following state mottoes: Arizona (“God Enriches”); Colorado (“Nothing without Providence”); Connecticut (“He Who Transplanted Still Sustains”); Florida (“In God We Trust”); Ohio (“With God, All Things Are Possible”); and South Dakota (“Under God the People Rule”). Arizona, Colorado, and Florida have placed their mottoes on their state seals, and the mottoes of Connecticut and South Dakota appear on the flags of those States as well. Georgia’s newly-redesigned flag includes the motto “In God We Trust.” The oaths of judicial office, citizenship, and military and civil service all end with the (optional) phrase “[S]o help me God.” See 28 U. S. C. §453; 5 U. S. C. §3331; 10 U. S. C. §502; 8 CF R §337.1. Many of our patriotic songs contain overt or implicit references to the divine, among them: “America” (“Protect us by thy might, great God our King”); “America the Beautiful” (“God shed his grace on thee”); and “God bless America.”

David Souter, First Amendment, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, Timeline

McConnell v. Federal Election Comm’n

David Souter, First Amendment, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, Timeline / By

Justice Stevens and Justice O’Connor delivered the opinion of the Court with respect to BCRA Titles I and II.*

The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11, as amended, 2 U. S. C. A. §431 et seq. (main ed. and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U. S. C. A. §315, and other portions of the United States Code, 18 U. S. C. A. §607 (Supp. 2003), 36 U. S. C. A. §§510–511, that are challenged in these cases.[ Footnote 1 ] In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The Chief Justice, post, p. ___, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post , p. ___, discusses Title V.

I

More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent “ ‘the great aggregations of wealth, from using their corporate funds, directly or indirectly,’ ” to elect legislators who would “ ‘vote for their protection and the advancement of their interests as against those of the public.’ ” United States v. Automobile Workers, 352 U. S. 567 , 571 (1957) (quoting E. Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds. 1916)). In Root’s opinion, such legislation would “ ‘strik[e] at a constantly growing evil which has done more to shake the confidence

Concurrence, Privacy

Lawrence v. Texas

Concurrence, Privacy / By

JUSTICE O’CONNOR, concurring in the judgment.

The Court today overrules Bowers v. Hardwick, 478 U.S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.

The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); see also Plyler v. Doe, 457 U.S. 202, 216 (1982). Under our rational basis standard of review, “legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.” Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973); Romer v. Evans, 517 U.S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U.S. 1, 11-12 (1992).

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since “the Constitution presumes that even improvident decisions will eventually be rectified by the

[580]

democratic processes.” Cleburne v. Cleburne Living Center, supra, at

Criminal Procedure, Dissent, William Rehnquist

Ring v. Arizona

Criminal Procedure, Dissent, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

I understand why the Court holds that the reasoning of Apprendi v. New Jersey, 530 U. S. 466 (2000), is irreconcilable with Walton v. Arizona, 497 U. S. 639 (1990). Yet in choosing which to overrule, I would choose Apprendi, not Walton.

I continue to believe, for the reasons I articulated in my dissent in Apprendi, that the decision in Apprendi was a serious mistake. As I argued in that dissent, Apprendi’s rule that any fact that increases the maximum penalty must be treated as an element of the crime is not required by the Constitution, by history, or by our prior cases. See 530 U. S., at 524-552. Indeed, the rule directly contradicts several of our prior cases. See id., at 531-539 (explaining that the rule conflicts with Patterson v. New York, 432 U. S. 197 (1977), Almendarez-Torres v. United States, 523 U. S. 224 (1998), and Walton, supra). And it ignores the “significant history in this country of… discretionary sentencing by judges.” 530 U. S., at 544 (O’CONNOR, J., dissenting). The Court has failed, both in Apprendi and in the decision announced today, to “offer any meaningful justification for deviating from years of cases both suggesting and holding that application of the ‘increase in the maximum penalty’ rule is not required by the Constitution.” Id., at 539.

Not only was the decision in Apprendi unjustified in my view, but it has also had a severely destabilizing effect on our criminal justice system.