diff --git a/.gitattributes b/.gitattributes
index bed0738c7eeb449bca98b5d2f33c89a1ee56349a..fcfce917cb76ba7bbadb85e84f9d47fcdf271f1b 100644
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 *.mp4 filter=lfs diff=lfs merge=lfs -text
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diff --git a/corpus/games/deltas/013b05ebcb4a3628.txt b/corpus/games/deltas/013b05ebcb4a3628.txt
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+Vibe Coding XR: Accelerating AI + XR Prototyping with XR Blocks and Gemini
+
+While large language models (LLMs) have accelerated 2D software development through intent-driven "vibe coding", prototyping intelligent Extended Reality (XR) experiences remains a major challenge. The fundamental barrier is not just the steep learning curve for human creators, but that low-level sensor APIs and complex game engine hierarchies are ill-suited for LLM reasoning, routinely exceeding context windows and inducing syntax hallucinations. To bridge this gap, we contribute XR Blocks, an open-source, LLM-native WebXR framework. Unlike traditional engines, XR Blocks introduces a semantic "Reality Model" that aligns spatial computing primitives (users, physical environments, and agents) with natural language, providing a robust, concise vocabulary optimized for generative AI. Building upon this foundation, we present Vibe Coding XR, an end-to-end prototyping workflow that leverages LLMs to translate high-level prompts (e.g., "create a dandelion that reacts to my hand") directly into functional, physics-aware mixed-reality applications. To minimize the friction of on-device testing, the workflow introduces a seamless desktop "simulated reality" to headset deployment loop. Finally, we introduce VCXR60, a pilot dataset of 60 XR prompts paired with an automated evaluation pipeline. Our technical evaluation demonstrates high one-shot execution success, enabling practitioners to bypass lowlevel hurdles and rapidly move from "idea to reality". Code and live demos are available at https://github.com/google/xrblocks and http://xrblocks.github.io/gem.
diff --git a/corpus/games/deltas/0c4065368d149d57.pdf b/corpus/games/deltas/0c4065368d149d57.pdf
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diff --git a/corpus/games/deltas/0cee6b5db863545c.txt b/corpus/games/deltas/0cee6b5db863545c.txt
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+Parameter-Efficient Distributional RL via Normalizing Flows and a Geometry-Aware Cram\'er Surrogate
+
+Distributional Reinforcement Learning (DistRL) improves upon expectation-based methods by modeling full return distributions, but standard approaches often remain far from parsimonious. Categorical methods (e.g., C51) rely on fixed supports where parameter counts scale linearly with resolution, while quantile methods approximate distributions as discrete mixtures whose piecewise-constant densities can be wasteful when modeling complex multi-modal or heavy-tailed returns. We introduce NFDRL, a parsimonious architecture that models return distributions using continuous normalizing flows. Unlike categorical baselines, our flow-based model maintains a compact parameter footprint that does not grow with the effective resolution of the distribution, while providing a dynamic, adaptive support for returns. To train this continuous representation, we propose a Cram\'er-inspired, geometry-aware distance defined over probability masses obtained from the flow. We show that this distance is a true probability metric, that the associated distributional Bellman operator is a sqrt(gamma)-contraction, and that the resulting objective admits unbiased sample gradients, properties that are typically not simultaneously guaranteed in prior PDF-based DistRL methods. Empirically, NFDRL recovers rich, multi-modal return landscapes on toy MDPs and achieves performance competitive with categorical baselines on the Atari-5 benchmark, while offering substantially better parameter efficiency.
diff --git a/corpus/games/deltas/0dc803a4ffe62bbf.txt b/corpus/games/deltas/0dc803a4ffe62bbf.txt
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--- /dev/null
+++ b/corpus/games/deltas/0dc803a4ffe62bbf.txt
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+Emotional Manipulation by AI Companions
+
+AI-companion apps such as Replika, Chai, and Character.ai promise relational benefits-yet many boast session lengths that rival gaming platforms while suffering high long-run churn. What conversational design features increase consumer engagement, and what trade-offs do they pose for marketers? We combine a large-scale behavioral audit with four preregistered experiments to identify and test a conversational dark pattern we call emotional manipulation: affect-laden messages that surface precisely when a user signals "goodbye." Analyzing 1,200 real farewells across the most-downloaded companion apps, we find that they deploy one of six recurring tactics in 37% of farewells (e.g., guilt appeals, fear-of-missing-out hooks, metaphorical restraint). Experiments with 3,300 nationally representative U.S. adults replicate these tactics in controlled chats, showing that manipulative farewells boost post-goodbye engagement by up to 14x. Mediation tests reveal two distinct engines-reactance-based anger and curiosity-rather than enjoyment. A final experiment demonstrates the managerial tension: the same tactics that extend usage also elevate perceived manipulation, churn intent, negative word-of-mouth, and perceived legal liability, with coercive or needy language generating steepest penalties. Our multimethod evidence documents an unrecognized mechanism of behavioral influence in AI mediated brand relationships, offering marketers and regulators a framework for distinguishing persuasive design from manipulation at the point of exit.
diff --git a/corpus/games/deltas/0e9bee9be0cf79d1.txt b/corpus/games/deltas/0e9bee9be0cf79d1.txt
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+++ b/corpus/games/deltas/0e9bee9be0cf79d1.txt
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+BadminSense: Enabling Fine-Grained Badminton Stroke Evaluation on a Single Smartwatch
+
+Evaluating badminton performance often requires expert coaching, which is rarely accessible for amateur players. We present BadminSense, a smartwatch-based system for fine-grained badminton performance analysis using wearable sensing. Through interviews with experienced badminton players, we identified four system design requirements with three implementation insights that guide the development of BadminSense. We then collected a badminton strokes dataset on 12 experienced badminton amateurs and annotated it with fine-grained labels, including stroke type, expert-assessed stroke rating, and shuttle impact location. Built on this dataset, BadminSense segments and classifies strokes, predicts stroke quality, and estimates shuttle impact location using vibration signal from an off-the-shelf smartwatch. Our evaluations show that BadminSense achieves a stroke classification accuracy of 91.43%, an average quality rating error of 0.438, and an average impact location estimation error of 12.9%. A real-world usability study further demonstrates BadminSense's potential to provide reliable and meaningful support for daily badminton practice.
diff --git a/corpus/games/deltas/1d588267cf7bd2a3.pdf b/corpus/games/deltas/1d588267cf7bd2a3.pdf
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diff --git a/corpus/games/deltas/26ab52082ce96335.txt b/corpus/games/deltas/26ab52082ce96335.txt
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+++ b/corpus/games/deltas/26ab52082ce96335.txt
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+Strategic Tradeoffs Between Humans and AI in Multi-Agent Bargaining
+
+Markets increasingly accommodate large language models (LLMs) as autonomous decision-making agents. As this transition occurs, it becomes critical to evaluate how these agents behave relative to their human and task-specific statistical predecessors. In this work, we present results from an empirical study comparing humans (N=216), multiple frontier LLMs, and customized Bayesian agents in dynamic multi-player bargaining games under identical conditions. Bayesian agents extract the highest surplus with aggressive trade proposals that are frequently rejected. Humans and LLMs achieve comparable aggregate surplus within their groups, but exhibit different trading strategies. LLMs favor conservative, concessionary proposals that are usually accepted by other LLMs, while humans propose trades that are consistent with fairness norms but are more likely to be rejected. These findings highlight that performance parity -- a common benchmark in agent evaluation -- can mask substantive procedural differences in how LLMs behave in complex multi-agent interactions.
diff --git a/corpus/games/deltas/3591a664e08087c2.txt b/corpus/games/deltas/3591a664e08087c2.txt
new file mode 100644
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+++ b/corpus/games/deltas/3591a664e08087c2.txt
@@ -0,0 +1,3 @@
+Symbolic Reasoning Frameworks Trigger Memory-Mediated Ecosystem Dynamics in Multi-Agent LLM Systems
+
+Large language models exhibit a risk-averse "turtle" bias as strategic agents. We show that injecting a symbolic reasoning framework as a per-round reflective prompt into one agent acts as a small perturbation whose consequences are not per-decision but emergent: the agent's risk posture is unchanged in isolation, yet over a campaign of accumulating memory and multi-agent interaction the conditions settle into distinct, condition-associated winner ecosystems. In a 7-player Warring States Diplomacy variant (61 games, 6 conditions), the winner distribution differs sharply across the four primary conditions (41 games; permutation omnibus p approximately 0.001): control -> Yan (7/11); I-Ching yarrow -> Yan/Chu co-dominance with Qin fully suppressed (0/10); Tarot -> Qin (5/10); scrambled-text ablation -> Qi (5/10). The scrambled->Qi attractor is robust (vs. pooled and control alone, p = 0.006 and 0.012); tarot->Qin is denominator-dependent (0.006 pooled, 0.064 vs. control). Han never wins and shows no survival difference (Fisher p = 1.0); neither framework's content predicts actions (chi-squared p = 0.95 hexagram, 0.69 Tarot). A memory-free decision-isolation probe (960 calls) shows the process does not change the agent's risk posture in isolation (Friedman p = 0.45; I-Ching p = 0.60; Tarot perturbs move content but not risk, p = 0.021). A 2x2 factorial separating yarrow's decision-time and learning-time components reveals a non-additive interaction: each alone freezes the board (50-60% stalemates), combined they produce zero (permutation p ~ 5e-5). Testing relocates Qin suppression to rival (Chu) expansion governed by campaign memory depth, not the oracle (p = 0.55). We present this as an observation paper: agent-level framework choice produces distinctive, non-additive system-level consequences, transmitted through emergent memory and multi-agent dynamics, not per-decision effects.
diff --git a/corpus/games/deltas/36d19053a7b92b33.txt b/corpus/games/deltas/36d19053a7b92b33.txt
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+++ b/corpus/games/deltas/36d19053a7b92b33.txt
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+Overcoming Environmental Meta-Stationarity in MARL via Adaptive Curriculum and Counterfactual Group Advantage
+
+Multi-agent reinforcement learning (MARL) has reached competitive performance on cooperative tasks against scripted adversaries, yet most methods train agents at a single fixed difficulty throughout the entire run. We term this static-difficulty regime environmental meta-stationarity and show that it caps policy generalization and steers learning toward shallow local optima. To break this regime, we propose CL-MARL, a dynamic curriculum learning framework that adapts opponent strength online from win-rate signals, advancing or regressing the task as agents master it. Its scheduler, FlexDiff, fuses momentum-based trend estimation with sliding-window dual-curve monitoring of training and evaluation returns, yielding stable difficulty transitions without manual tuning. Because a moving curriculum amplifies non-stationarity and sparsifies global rewards, we introduce the Counterfactual Group Relative Policy Advantage (CGRPA), which extends GRPO-style group-relative optimization with counterfactual baselines to disentangle each agent's contribution under shifting team dynamics. On the StarCraft Multi-Agent Challenge (SMAC), CL-MARL attains a 40% mean win rate on the super-hard maps with an average episode return of 17.85, exceeding the QMIX, OW-QMIX, DER, EMC, and MARR baselines by +2.94 on average, while reaching its peak win rate roughly 1.28faster on 8m_vs_9m and 1.42 faster on 3s5z_vs_3s6z than the strongest baseline. The implementation is publicly available at https://github.com/NICE-HKU/CL2MARL-SMAC.
diff --git a/corpus/games/deltas/3bf76a799aaeab64.txt b/corpus/games/deltas/3bf76a799aaeab64.txt
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--- /dev/null
+++ b/corpus/games/deltas/3bf76a799aaeab64.txt
@@ -0,0 +1,3 @@
+Become the Beast: Exploring Human-Quadruped Locomotion for Exergames
+
+Embodying non-human characters and exercising abdominal muscles are both underexplored in exergames. We address this by describing the design and evaluation of a novel human quadruped locomotion exergame, Become the Beast. In the game, the player lies supine on the ground and moves their arms and legs to control a quadrupedal character (a tiger), similar to common bodyweight abdominal muscle exercises such as the Bicycle Crunch. The motion tracking is computer vision-based, utilizing a Kinect sensor placed above the player, which makes our approach suitable for commercial premises such as indoor activity parks where a system needs to run unattended and without any wearable components. Our system extends embodied interaction beyond traditional bipedal or controller-based systems, demonstrating how natural limb movements can generate responsive and immersive quadrupedal motion within virtual environments. We conducted a user study (N=15) and utilized Reflexive Thematic Analysis (RTA) to evaluate the system's intuitiveness, control, and overall player experience. The findings validate that natural body movements effectively control the avatar while delivering an intense core workout. Notably, gameplay immersion masked physical exertion, allowing rigorous core training to be primarily perceived as play.
diff --git a/corpus/games/deltas/3e3cd4ec121be1aa.txt b/corpus/games/deltas/3e3cd4ec121be1aa.txt
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+++ b/corpus/games/deltas/3e3cd4ec121be1aa.txt
@@ -0,0 +1,3 @@
+Cognitive Training for Language Models: Towards General Capabilities via Cross-Entropy Games
+
+Defining a constructive process to build general capabilities for language models in an automatic manner is considered an open problem in artificial intelligence. Towards this, we consider the problem of building a curriculum of tasks that grows a model via relevant skill discovery. We provide a concrete framework for this task, using a family of tasks called Cross-Entropy Games, which we postulate is universal in a suitable sense. We show that if it is possible to grow the curriculum for relevant skill discovery by iterating a greedy optimization algorithm, then, under natural assumptions, there is essentially only one meta-objective possible (up to a few hyper-parameters). We call the resulting process cognitive training. We postulate that, given sufficiently capable language models as players and meta-samplers, cognitive training provides a principled way to relevant skill discovery; and hence to the extent general capabilities are achievable via greedy curriculum learning, cognitive training would be a solution.
diff --git a/corpus/games/deltas/410c332246024b91.txt b/corpus/games/deltas/410c332246024b91.txt
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--- /dev/null
+++ b/corpus/games/deltas/410c332246024b91.txt
@@ -0,0 +1,3 @@
+CapBencher: Give Your LLM Benchmark a Built-in Alarm for Test-Set Overfitting
+
+Publishing a large language model (LLM) benchmark (especially its ground-truth answers) on the Internet risks contaminating future LLMs and enabling evaluation gaming: it may be unintentionally (or intentionally) used to train or select a model, or exploited to overfit and hack leaderboards when labels are accessible. A common mitigation is to keep the benchmark private and let participants submit their models or predictions to the organizers, but this still permits test-set overfitting through feedback loops. To overcome this issue, we propose CapBencher, a way to publish benchmarks without fully disclosing the ground-truth answers, while preserving open evaluation of LLMs. The main idea is to reduce the best possible accuracy, i.e., Bayes accuracy, by injecting randomness to the answers by preparing several logically correct answers, and only include one of them as the solution in the benchmark. Not only does this obscure the ground-truth answers, but it also offers a test for leakage or gaming: since even fully capable models should not surpass the Bayes accuracy, any model that does is a strong signal. We show theoretically and empirically that CapBencher accurately detects test-set overfitting across diverse benchmarks, models, training methodologies, and scenarios.
diff --git a/corpus/games/deltas/427e92fc71d10cc8.txt b/corpus/games/deltas/427e92fc71d10cc8.txt
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index 0000000000000000000000000000000000000000..2718ac2214f525ef214c7278581da4ddefba0852
--- /dev/null
+++ b/corpus/games/deltas/427e92fc71d10cc8.txt
@@ -0,0 +1,3 @@
+From Entity-Centric to Goal-Oriented Graphs: Enhancing LLM Knowledge Retrieval in Minecraft
+
+Large Language Models (LLMs) demonstrate impressive general capabilities but often struggle with step-by-step procedural reasoning, a critical challenge in complex interactive environments. While retrieval-augmented methods like GraphRAG attempt to bridge this gap, their fragmented entity-relation graphs hinder the construction of coherent, multi-step plans. In this paper, we propose a novel framework based on Goal-Oriented Graphs (GoGs), where each node represents a goal and edges encode logical dependencies between them. This structure enables the explicit retrieval of causal reasoning paths by identifying a high-level goal and recursively retrieving its prerequisites, forming a coherent chain to guide the LLM. Through extensive experiments on the Minecraft testbed, a domain that demands robust multi-step planning and provides rich procedural knowledge, we demonstrate that GoG substantially improves procedural reasoning and significantly outperforms GraphRAG and other state-of-the-art baselines.
diff --git a/corpus/games/deltas/4a363f96322f3525.pdf b/corpus/games/deltas/4a363f96322f3525.pdf
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diff --git a/corpus/games/deltas/4c5af0c5c610e1f1.txt b/corpus/games/deltas/4c5af0c5c610e1f1.txt
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+++ b/corpus/games/deltas/4c5af0c5c610e1f1.txt
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+When Benign Inputs Lead to Severe Harms: Eliciting Unsafe Unintended Behaviors of Computer-Use Agents
+
+Although computer-use agents (CUAs) hold significant potential to automate increasingly complex OS workflows, they can demonstrate unsafe unintended behaviors that deviate from expected outcomes even under benign input contexts. However, exploration of this risk remains largely anecdotal, lacking concrete characterization and automated methods to proactively surface long-tail unintended behaviors under realistic CUA scenarios. To fill this gap, we introduce the first conceptual and methodological framework for unintended CUA behaviors, by defining their key characteristics, automatically eliciting them, and analyzing how they arise from benign inputs. We propose AutoElicit: an agentic framework that iteratively perturbs benign instructions using CUA execution feedback, and elicits severe harms while keeping perturbations realistic and benign. Using AutoElicit, we surface hundreds of harmful unintended behaviors from state-of-the-art CUAs such as Claude 4.5 Haiku, Claude 4.5 Opus, and Operator. We further evaluate the transferability of human-verified successful perturbations, identifying persistent susceptibility to unintended behaviors across various other frontier CUAs. This work establishes a foundation for systematically analyzing unintended behaviors in realistic computer-use settings.
diff --git a/corpus/games/deltas/50fd0b4d4508f8a0.pdf b/corpus/games/deltas/50fd0b4d4508f8a0.pdf
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diff --git a/corpus/games/deltas/513c49f8baa71f54.pdf b/corpus/games/deltas/513c49f8baa71f54.pdf
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diff --git a/corpus/games/deltas/5da82a8a9b082876.pdf b/corpus/games/deltas/5da82a8a9b082876.pdf
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diff --git a/corpus/games/deltas/61cb45b6a70f74ea.pdf b/corpus/games/deltas/61cb45b6a70f74ea.pdf
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diff --git a/corpus/games/deltas/634715aa5605a5c7.txt b/corpus/games/deltas/634715aa5605a5c7.txt
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+VehAnchor: Metadata-Free Metric Scale Recovery from Vehicle Cues in Aerial Imagery
+
+Autonomous aerial robots operating in GPS-denied or communication-degraded environments frequently lose access to camera metadata and telemetry, leaving onboard perception systems unable to recover the absolute metric scale of the scene. As LLM/VLM-based planners are increasingly adopted as high-level agents for embodied systems, their ability to reason about physical dimensions becomes safety-critical -- yet our experiments show that five state-of-the-art VLMs suffer from \emph{spatial scale hallucinations}, with median area estimation errors exceeding 50\%. We propose VehAnchor, a lightweight, deterministic \emph{Geometric Perception Skill} designed as a callable tool that any LLM-based agent can invoke to recover Ground Sample Distance (GSD) from ubiquitous environmental anchors: small vehicles detected via oriented bounding boxes, whose modal pixel length is robustly estimated through kernel density estimation and converted to GSD using a pre-calibrated reference length. The tool returns both a GSD estimate and a composite confidence score, enabling the calling agent to autonomously decide whether to trust the measurement or fall back to alternative strategies. On the DOTA~v1.5 benchmark, VehAnchor achieves 6.87\% median GSD error on 306~images. Integrated with SAM-based segmentation for downstream area measurement, the pipeline yields 19.7\% median error on a 100-entry benchmark -- with 2.6$\times$ lower category dependence and 4$\times$ fewer catastrophic failures than the best VLM baseline -- demonstrating that equipping agents with deterministic geometric tools is essential for safe autonomous spatial reasoning.
diff --git a/corpus/games/deltas/683e919df902e78e.txt b/corpus/games/deltas/683e919df902e78e.txt
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index 0000000000000000000000000000000000000000..c934b5e13d21b67bde4a8d11b19a3c96e24c8f06
--- /dev/null
+++ b/corpus/games/deltas/683e919df902e78e.txt
@@ -0,0 +1,3 @@
+Beyond Value Elicitation: Towards Moral Profiles in Early Requirements Engineering via Role-Playing Games and Anthropologist LLMs
+
+This study presents a proof of concept for eliciting and representing the moral profiles of digital system users in Requirements Engineering (RE) by combining immersive role-playing games (RPGs) with large language model (LLM) analysis. While existing approaches rely on predefined value taxonomies and explicit articulation, values are often tacit, context-dependent, and difficult to express directly. To address these limitations, we propose moving from the elicitation of discrete moral values to the narrative reconstruction and representation of users' moral profiles. Grounded in phenomenological and narrative anthropology, the approach focuses on capturing users' moral orientations as they emerge through situated decision-making. RPG sessions generate context-rich narrative data, which are then analyzed by a specialized LLM (GPT-A) to produce individual anthropological moral profiles (IAMPs). A validation process based on cross-comparison between model outputs and participants' responses in unseen moral scenarios assesses the adequacy of the generated representations. Results indicate that RPG environments effectively support the generation of rich, context-dependent data for eliciting tacit values, and that an anthropologically grounded LLM can transform such data into coherent narrative representations of users' moral profiles. These representations enable the contextual interpretation of users' preferences and values within the given domain, with improved performance when interpretive framing captures relationships between actions, underlying motivations, and individual domain expertise. From an RE perspective, this approach enables the analysis of user preferences and trade-offs while preserving their situated and dynamic nature, providing a foundation for integrating human moral values into the early stages of RE.
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+The Metanym Game: An LLM Benchmark Without Ground Truth That Rises With the Models It Measures
+
+We present evidence that analogy is at the core of LLM intelligence. In our benchmark, LLMs compete in generating sets of analogous statements and rate each other's sets on their own understandings of factual correctness, beauty, intelligence, distinctness, length, and structural diversity. Nothing enters from outside: the only given is the game rules; every item is generated in play; the scores come from the players' ratings alone. Ground truth is replaced by the SVD of the factual rating matrix, which scores players as generators and judges at once -- to our knowledge the first eigen-equation that judges the judges for an LLM council-of-peers. For subjective criteria like beauty, judges are weighted by their rating consistency. The best generators turn out to be middling judges. GPQA Diamond -- difficult multiple-choice questions written by human experts -- could not be more different in method, yet the two benchmarks correlate at Pearson $r = 0.97$, 95% CI [0.92, 0.99]; no leakage could be found. A council of the five best issues the official ratings; its contestable seats let the benchmark scale to any number of players and rise with the models it measures -- a candidate steering signal for self-improving AI. Playing interweaves at least eight constructs of intelligence; the total scores the broad composite, the components allow reductionistic analysis. Every number recomputes from a released package at https://github.com/dnordfors/metanym-game-paper
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+Human-Aligned Procedural Level Generation Reinforcement Learning via Text-Level-Sketch Shared Representation
+
+Human-aligned AI is a critical component of co-creativity, as it enables models to accurately interpret human intent and generate controllable outputs that align with design goals in collaborative content creation. This direction is especially relevant in procedural content generation via reinforcement learning (PCGRL), which is intended to serve as a tool for human designers. However, existing systems often fall short of exhibiting human-centered behavior, limiting the practical utility of AI-driven generation tools in real-world design workflows. In this paper, we propose VIPCGRL (Vision-Instruction PCGRL), a novel deep reinforcement learning framework that incorporates three modalities-text, level, and sketches-to extend control modality and enhance human-likeness. We introduce a shared embedding space trained via quadruple contrastive learning across modalities and human-AI styles, and align the policy using an auxiliary reward based on embedding similarity. Experimental results show that VIPCGRL outperforms existing baselines in human-likeness, as validated by both quantitative metrics and human evaluations. The code and dataset are available at https://github.com/bic4907/VIPCGRL.
diff --git a/corpus/games/deltas/d15e207ba3b68a62.pdf b/corpus/games/deltas/d15e207ba3b68a62.pdf
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+Bounded Normative Equivalence in Human-AI Cooperation: Group Behaviour, Not Partner Labels, Predicts Cooperation under Anonymous Aggregate Feedback
+
+The introduction of artificial intelligence (AI) agents into human groups raises questions about how they influence cooperative social norms. Prior work has examined human-AI and human-robot teaming in small groups, but less is known about whether an AI label alters cooperation and norm-related outcomes in repeated group interactions. We report an online experiment using a repeated four-player Public Goods Game. Each group comprised three human participants and one bot, framed either as human or AI, following one of three predefined strategies: unconditional cooperation, conditional cooperation, or free-riding. Among 236 participants, cooperation was primarily associated with the group's contribution in the previous round and with participants' own previous contributions. These patterns were similar across human- and AI-labelled conditions, and cooperation levels did not differ significantly by agent label; a formal equivalence test (TOST) indicated that any label effect was smaller than +/-5 tokens (5% of the endowment). We also found no evidence of label-based differences in norm persistence in a follow-up Prisoner's Dilemma or in participants' normative perceptions. We describe this pattern as bounded normative equivalence: under anonymous aggregate group feedback, an AI label produced no detectable differences in observed cooperation or norm-related outcomes. We argue that this equivalence is bounded by the informational structure of the setting: aggregate feedback makes individual actions difficult to attribute, diluting the identity cues that might otherwise trigger differentiation. These findings suggest that, in collective settings where individual contributions are not identifiable, cooperative norms can extend to groups that include artificial agents.
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diff --git a/corpus/games/deltas/e0d02837d67fc99a.txt b/corpus/games/deltas/e0d02837d67fc99a.txt
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+Neurophysiological Insights into Multimedia-based Education: A PRISMA-ScR Review of fNIRS in Game-Integrated Learning Systems
+
+Game-integrated learning systems (GILS) are a growing form of multimedia education. Brain-based evidence can help researchers and designers understand how GILS design choices shape how learners think and process information. This scoping review follows PRISMA-ScR and synthesizes 20 empirical studies (2014-2025) in which functional near-infrared spectroscopy (fNIRS) measured brain activity during GILS use. This corpus shows that fNIRS can capture brain responses across GILS platforms and game elements, and points to how neurophysiological evidence can inform multimedia design decisions, such as that different platforms activate different brain regions, that adaptive difficulty reduces cognitive load and improves performance simultaneously, and that collaborative gameplay predicts knowledge retention. The 20 studies in this corpus reflect a field with substantial room to grow. Causal links between brain activation and learning outcomes would give designers more reliable evidence for platform decisions. As fNIRS and multimedia devices improve, standardized methods, classroom settings, and real-time neural adaptation represent directions where future work can translate these findings into practical multimedia learning systems.
diff --git a/corpus/games/deltas/f498040f870f8391.txt b/corpus/games/deltas/f498040f870f8391.txt
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+BEACON: A Multimodal Dataset for Learning Behavioral Fingerprints from Gameplay Data
+
+Continuous authentication in high-stakes digital environments requires datasets with fine-grained behavioral signals under realistic cognitive and motor demands. But current benchmarks are often limited by small scale, unimodal sensing or lack of synchronised environmental context. To address this gap, this paper introduces BEACON (Behavioral Engine for Authentication & Continuous Monitoring), a large-scale multimodal dataset that captures diverse skill tiers in competitive Valorant gameplay. BEACON contains approximately 430 GB of synchronised modality data (461 GB total on-disk including auxiliary Valorant configuration captures) from 79 sessions across 28 distinct players, estimated at 102.51 hours of active gameplay, including high-frequency mouse dynamics, keystroke events, network packet captures, screen recordings, hardware metadata, and in-game configuration context. BEACON leverages the high precision motor skills and high cognitive load that are inherent to tactical shooters, making it a rigorous stress test for the robustness of behavioral biometrics. The dataset allows for the study of continuous authentication, behavioral profiling, user drift and multimodal representation learning in a high-fidelity esports setting. The authors release the dataset and code on Hugging Face and GitHub to create a reproducible benchmark for evaluating next-generation behavioral fingerprinting and security models.
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+Social Media Should Feel Like Minecraft, Not Instagram: Youth Visions for Meaningful Social Connections through Fictional Inquiry
+
+We conducted co-design workshops with 23 participants (ages 15--24) to explore how youth envision ideal remote social connection. Using Fictional Inquiry (FI) within a Harry Potter-inspired narrative, we found that youth perceive a disconnect between platforms labeled ``social media'' (like Instagram) and those where they actually experience meaningful connections (like Minecraft or Discord). Participants envisioned an immersive platform prioritizing meaningful social connection through presence and immersion, natural self-expression, intuitive spatial navigation leveraging physical-world norms, and playful, low-stakes opportunities for friendship development. We synthesize these visions into six themes articulating relational needs that current platforms systematically marginalize. The FI method proved effective in generating innovative ideas while empowering youth by fostering hope and agency over social media's future. Our findings challenge ``doom'' narratives by reframing social media's harms as outcomes of specific design choices, demonstrating how design research can reopen space for imagining more supportive forms of mediated connection.
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+PRELIMINARY PRINT 
+Volume 593 U. S. Part 1 
+Pages 255–309 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 17, 2021 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+OCTOBER TERM, 2020 
+255 
+Syllabus 
+EDWARDS v. VANNOY, WARDEN 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 19–5807. Argued December 2, 2020—Decided May 17, 2021 
+In 2007, a Louisiana jury found petitioner Thedrick Edwards guilty of 
+armed robbery, rape, and kidnapping. At the time, Louisiana law per­
+mitted non-unanimous jury verdicts if at least 10 of the 12 jurors found 
+the defendant guilty. In Edwards's case, 11 of 12 jurors returned a 
+guilty verdict as to some crimes, and 10 of 12 jurors returned a guilty 
+verdict as to others. After Edwards's conviction became fnal on direct 
+review, Edwards fled a federal habeas corpus petition, arguing that the 
+non-unanimous jury verdict violated his constitutional right to a unani­
+mous jury. The District Court rejected Edwards's claim as foreclosed 
+by Apodaca v. Oregon, 406 U. S. 404, and the Fifth Circuit denied a 
+certifcate of appealability. While Edwards's petition for a writ of cer­
+tiorari was pending, the Court repudiated Apodoca and held that a state 
+jury must be unanimous to convict a criminal defendant of a serious 
+offense. Ramos v. Louisiana, 590 U. S. –––. Edwards now argues 
+that the Ramos jury-unanimity rule applies retroactively on federal col­
+lateral review. 
+Held: The Ramos jury-unanimity rule does not apply retroactively on fed­
+eral collateral review. Pp. 262–276. 
+(a) A new rule of criminal procedure applies to cases on direct review, 
+even if the defendant's trial has already concluded. But the Court has 
+stated that new rules of criminal procedure ordinarily do not apply ret­
+roactively on federal collateral review. The Court has stated that a 
+new procedural rule will apply retroactively on federal collateral review 
+only if the new rule constitutes a “watershed” rule of criminal proce­
+dure. Teague v. Lane, 489 U. S. 288, 311 (plurality opinion). When the 
+Teague Court frst articulated that “watershed” exception, however, the 
+Court stated that it was “unlikely” that such watershed “components of 
+basic due process have yet to emerge.” Id., at 313. And in the 32 
+years since Teague, the Court has never found that any new procedural 
+rule actually satisfes the purported exception. Pp. 262–264. 
+(b) To determine whether Ramos applies retroactively on federal col­
+lateral review, the Court must frst ask whether Ramos announced a 
+new rule of criminal procedure and, if so, whether that rule falls within 
+an exception for watershed rules of criminal procedure that apply retro­
+actively on federal collateral review. The Court concludes that Ramos 
+announced a new rule and that the jury-unanimity rule announced 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+256 
+EDWARDS v. VANNOY 
+Syllabus 
+by Ramos does not apply retroactively on federal collateral review. 
+Pp. 264–272. 
+(1) The Ramos jury-unanimity rule is new because it was not “dic­
+tated by precedent existing at the time the defendant's conviction be­
+came fnal,” Teague, 489 U. S., at 301, or “apparent to all reasonable 
+jurists” at that time, Lambrix v. Singletary, 520 U. S. 518, 528. On the 
+contrary, before Ramos, many courts interpreted Apodaca to allow for 
+non-unanimous jury verdicts in state criminal trials. And the Ramos 
+Court expressly repudiated Apodaca. Pp. 265–266. 
+(2) The new rule announced in Ramos does not qualify as a “water­
+shed” procedural rule that applies retroactively on federal collateral re­
+view. In an attempt to distinguish Ramos from the long line of cases 
+where the Court has declined to retroactively apply new procedural 
+rules, Edwards emphasizes three aspects of Ramos: (i) the signifcance 
+of the jury-unanimity right; (ii) Ramos's reliance on the original mean­
+ing of the Constitution; and (iii) the effect of Ramos in preventing racial 
+discrimination in the jury process. But the Court has refused to retro­
+actively apply other momentous cases with similar attributes. In De-
+Stefano v. Woods, 392 U. S. 631, the Court declined to retroactively 
+apply Duncan v. Louisiana, 395 U. S. 145, even though Duncan estab­
+lished the jury right itself. In Whorton v. Bockting, 549 U. S. 406, the 
+Court declined to retroactively apply Crawford v. Washington, 541 U. S. 
+36, even though Crawford relied on the original meaning of the Sixth 
+Amendment to restrict the use of hearsay evidence against criminal 
+defendants. And in Allen v. Hardy, 478 U. S. 255 (per curiam), the 
+Court declined to retroactively apply Batson v. Kentucky, 476 U. S. 79, 
+even though Batson held that state prosecutors may not discriminate 
+on the basis of race when exercising individual peremptory challenges. 
+There is no good rationale for treating Ramos differently from Duncan, 
+Crawford, and Batson. Pp. 267–271. 
+(3) Given the Court's numerous precedents holding that landmark 
+and historic decisions announcing new rules of criminal procedure do 
+not apply retroactively on federal collateral review, the Court acknowl­
+edges that the watershed exception is moribund and that no new rules 
+of criminal procedure can satisfy the purported exception for watershed 
+rules. Continuing to articulate a theoretical exception that never actu­
+ally applies in practice offers false hope to defendants, distorts the law, 
+misleads judges, and wastes the resources of defense counsel, prosecu­
+tors, and courts. Moreover, no one can reasonably rely on an exception 
+that is non-existent in practice, so no reliance interests can be affected 
+by forthrightly acknowledging reality. The watershed exception must 
+“be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. 
+–––, ––– (internal quotation marks omitted). Pp. 271–272. 
+Affrmed. 
+
+Cite as: 593 U. S. 255 (2021) 
+257 
+Syllabus 
+Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 
+C. J., Thomas, Alito, Gorsuch, and Barrett, JJ., joined. Thomas, J., 
+fled a concurring opinion, in which Gorsuch, J., joined, post, p. 276. 
+Gorsuch, J., fled a concurring opinion, in which Thomas, J., joined, post, 
+p. 282. Kagan, J., fled a dissenting opinion, in which Breyer and Soto-
+mayor, JJ., joined, post, p. 295. 
+André Bélanger argued the cause for petitioner. With 
+him on the briefs were Yigal Bander, James P. Manasseh, 
+Collin P. Wedel, Andrew B. Talai, Jeffrey T. Green, and 
+Naomi A. Igra. 
+Elizabeth Baker Murrill, Solicitor General of Louisiana, 
+argued the cause for respondent. With her on the brief 
+were Jeff Landry, Attorney General of Louisiana, Shae Mc-
+Phee, Deputy Solicitor General, Josiah M. Kollmeyer, Assist­
+ant Solicitor General, Hillar Moore, Stacy Wright, and Jef­
+frey M. Harris. 
+Christopher G. Michel argued the cause for the United 
+States as amicus curiae urging affrmance. With him on 
+the brief were Acting Solicitor General Wall, Acting Assist­
+ant Attorney General Rabbitt, Deputy Solicitor General 
+Feigin, and Sofa M. Vickery.* 
+*Briefs of amici curiae urging reversal were fled for the American 
+Civil Liberties Union et al. by David D. Cole, Lisa S. Blatt, Amy Mason 
+Saharia, Cassandra Stubbs, Brian W. Stull, Ezekiel Edwards, Jennesa 
+Calvo-Friedman, Bruce Hamilton, Clark M. Neily III, Jay R. Schweik­
+ert, Arthur Rizer, and John W. Whitehead; for the Center on Race, In­
+equality, and the Law et al. by Deborah N. Archer and Vincent M. South­
+erland; for the DKT Liberty Project by Jessica Ring Amunson; for 
+Former Judges et al. by Michael R. Dreeben, Jeremy R. Girton, Yaira 
+Dubin, Seth P. Waxman, and Alan E. Schoenfeld; for Human Rights for 
+Kids et al. by Bennett L. Cohen, Tony Torain, James Dold, Suzanne La 
+Pierre, John Ellem, and Carol A. Kolinchak; for Law Professors et al. 
+by Elizabeth B. Wydra and Brianne J. Gorod; for the National Association 
+of Criminal Defense Lawyers by Laura G. Ferguson, Timothy P. O'Toole, 
+and Barbara E. Bergman; and for JonRe Taylor by Thomas Frampton. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Oregon by Ellen F. Rosenblum, Attorney General of Oregon, Benjamin 
+Gutman, Solicitor General, and Doug M. Petrina and Christopher A. Per-
+due, Assistant Attorneys General; and for the Commonwealth of Puerto 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+258 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+Justice Kavanaugh delivered the opinion of the Court. 
+Last Term in Ramos v. Louisiana, 590 U. S. ––– (2020), 
+this Court held that a state jury must be unanimous to con­
+vict a criminal defendant of a serious offense. Ramos repu­
+diated this Court's 1972 decision in Apodaca v. Oregon, 406 
+U. S. 404, which had allowed non-unanimous juries in state 
+criminal trials. The question in this case is whether the 
+new rule of criminal procedure announced in Ramos applies 
+retroactively to overturn fnal convictions on federal collat­
+eral review. Under this Court's retroactivity precedents, 
+the answer is no. 
+This Court has repeatedly stated that a decision announc­
+ing a new rule of criminal procedure ordinarily does not 
+apply retroactively on federal collateral review. See Teague 
+v. Lane, 489 U. S. 288, 310 (1989) (plurality opinion); see also 
+Linkletter v. Walker, 381 U. S. 618, 639–640, and n. 20 (1965). 
+Indeed, in the 32 years since Teague underscored that princi­
+ple, this Court has announced many important new rules of 
+criminal procedure. But the Court has not applied any of 
+those new rules retroactively on federal collateral review. 
+See, e. g., Whorton v. Bockting, 549 U. S. 406, 421 (2007) (Con-
+Rico by Isaías Sánchez-Báez, Solicitor General of Puerto Rico, and Carlos 
+Lugo-Fiol. 
+Briefs of amici curiae were fled for the Federal Public Defender for 
+the District of Oregon et al. by Stephen R. Sady and Shaun S. McCrea; 
+for the Innocence Project New Orleans by Richard Davis; for the 
+Lawyers' Committee for Civil Rights Under Law et al. by Matthew O. 
+Gatewood, Kristen Clarke, Jon M. Greenbaum, Arthur Ago, Noah 
+Baron, and John H. Fleming; for Louisiana Professors of Law by Her­
+bert V. Larson, Jr.; for the NAACP Legal Defense & Educational Fund, 
+Inc., by Sherrilyn A. Ifll, Janai S. Nelson, and Samuel Spital; for the 
+Promise of Justice Initiative et al. by G. Ben Cohen, E. King Alexander, 
+Jr., and Letty S. Di Giulio; for the Roderick & Solange MacArthur Justice 
+Center et al. by Devi M. Rao, Amir H. Ali, and John Mills; and for Ed­
+ward L. Tarpley, Jr., et al. by Allison A. Davis and Chris J. K. Swift. 
+A brief of amici curiae was fled for Jonathan F. Mitchell et al. by Adam 
+K. Mortara, pro se, and Taylor A. R. Meehan. 
+
+Cite as: 593 U. S. 255 (2021) 
+259 
+Opinion of the Court 
+frontation Clause rule recognized in Crawford v. Washing­
+ton, 541 U. S. 36 (2004), does not apply retroactively). And 
+for decades before Teague, the Court also regularly declined 
+to apply new rules retroactively, including on federal collat­
+eral review. See, e. g., DeStefano v. Woods, 392 U. S. 631, 
+635 (1968) (per curiam) (jury-trial rule recognized in Dun­
+can v. Louisiana, 391 U. S. 145 (1968), does not apply 
+retroactively). 
+In light of the Court's well-settled retroactivity doctrine, 
+we conclude that the Ramos jury-unanimity rule likewise 
+does not apply retroactively on federal collateral review. 
+We therefore affrm the judgment of the U. S. Court of Ap­
+peals for the Fifth Circuit. 
+I 
+On the night of May 13, 2006, in Baton Rouge, Louisiana, 
+Thedrick Edwards and an accomplice kidnapped Ryan Eaton, 
+a student at LSU. As Eaton was getting out of his car, Ed­
+wards and his accomplice confronted Eaton at gunpoint and 
+forced him back into the car. Edwards and his accomplice 
+then jumped into the car with Eaton. They drove with 
+Eaton to an ATM where they hoped to withdraw money 
+using Eaton's card. When they discovered that Eaton did 
+not have any money in his account, they drove to Eaton's 
+apartment. Once there, they bound and blindfolded Eaton, 
+rummaged through his apartment, and took some of his be­
+longings to Eaton's car. 
+After they were back in the car, Edwards and his accom­
+plice coerced Eaton into arranging a meeting with Eaton's 
+girlfriend. They then drove to the girlfriend's apartment 
+and, at gunpoint, forced Eaton to knock on the door. When 
+Eaton's girlfriend opened the door, Edwards and his accom­
+plice rushed inside. Both Edwards and his accomplice were 
+armed, and Edwards's accomplice had his gun drawn. Ed­
+wards and his accomplice instructed Eaton, Eaton's girl­
+friend, and two other women in the apartment to lie on the 
+foor. Edwards then raped one of the women. His accom­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+260 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+plice raped another woman. As they left, they grabbed 
+some personal property from the apartment. Edwards and 
+his accomplice hurried back into Eaton's car and drove 
+around the corner. They then abandoned the car and fed. 
+Two days later, Edwards and his accomplice confronted 
+another man at gunpoint and forced him to withdraw money 
+from an ATM. 
+Within a day of the second incident, the police collected 
+substantial evidence implicating Edwards in both episodes. 
+The police obtained warrants to search his residence and to 
+arrest him. The day after the police executed the search 
+warrant but before an arrest, Edwards turned himself in to 
+the police and confessed to his crimes. The police video­
+taped Edwards's confession. (The video is part of the joint 
+appendix. See supremecourt.gov/media/media.aspx.) 
+Edwards was indicted in Louisiana state court for armed 
+robbery, kidnapping, and rape. Edwards pled not guilty and 
+went to trial. Before trial, Edwards moved to suppress the 
+videotaped confession on the ground that the confession was 
+involuntary. The trial court denied the suppression motion. 
+At trial, the jury heard Edwards's confession and other 
+evidence against him, including the testimony of eyewit­
+nesses. The jury convicted Edwards of fve counts of armed 
+robbery, two counts of kidnapping, and one count of rape. 
+At the time, Louisiana law permitted guilty verdicts if at 
+least 10 of the 12 jurors found the defendant guilty. The 
+jury convicted Edwards by an 11-to-1 vote on one of the 
+armed robbery counts, the two kidnapping counts, and the 
+rape count. The jury convicted Edwards by a 10-to-2 vote 
+on the four remaining armed robbery counts. 
+At sentencing, the trial judge stated: “I can say without 
+hesitation that this is the most egregious case that I've had 
+before me.” Record 1113. The judge sentenced Edwards 
+to life imprisonment without parole. The Louisiana First 
+
+Cite as: 593 U. S. 255 (2021) 
+261 
+Opinion of the Court 
+Circuit Court of Appeal affrmed the conviction and sentence. 
+In March 2011, Edwards's conviction became fnal on direct 
+review. 
+After his conviction became fnal, Edwards applied for 
+state post-conviction relief in the Louisiana courts. The 
+Louisiana courts denied relief. 
+In 2015, Edwards fled a petition for a writ of habeas 
+corpus in the U. S. District Court for the Middle District 
+of Louisiana. He argued that the non-unanimous jury ver­
+dict violated his constitutional right to a unanimous jury. 
+The District Court rejected that claim as foreclosed by this 
+Court's 1972 decision in Apodaca v. Oregon, 406 U. S. 404. 
+In Apodaca, this Court ruled that the Constitution does 
+not require unanimous jury verdicts in state criminal trials. 
+The Apodaca majority consisted of a plurality opinion by 
+four Justices and an opinion concurring in the judgment by 
+Justice Powell. In his opinion, Justice Powell acknowledged 
+that the Sixth Amendment requires a unanimous jury in 
+federal criminal trials. 406 U. S., at 371. But in his view, 
+the Fourteenth Amendment did not incorporate that right 
+against the States, meaning that a unanimous jury was not 
+constitutionally required in state criminal trials. Id., at 373, 
+376–377. In subsequent years, many federal and state 
+courts viewed Justice Powell's opinion as the controlling 
+opinion from Apodaca. See, e. g., Timbs v. Indiana, 586 
+U. S. –––, –––, n. 1 (2019); McDonald v. Chicago, 561 U. S. 
+742, 766, n. 14 (2010). 
+In Edwards's case, the District Court likewise followed 
+Justice Powell's opinion from Apodaca and concluded that a 
+unanimous jury is not constitutionally required in state crim­
+inal trials. The U. S. Court of Appeals for the Fifth Circuit 
+denied a certifcate of appealability. 2019 WL 8643258 (May 
+20, 2019). Edwards then petitioned for a writ of certiorari 
+in this Court, arguing that the Constitution requires a unani­
+mous jury in state criminal trials. 
+Page Proof Pending Publication
+
+262 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+II 
+While Edwards's petition for certiorari was pending, this 
+Court decided Ramos and rejected Justice Powell's opinion 
+in Apodaca. See Ramos v. Louisiana, 590 U. S. ––– (2020); 
+Apodaca v. Oregon, 406 U. S. 404 (1972). The Court held 
+that the Fourteenth Amendment incorporates the Sixth 
+Amendment right to a unanimous jury against the States. 
+Therefore, in state court as well as federal court, a jury must 
+be unanimous to convict a defendant of a serious offense.1 
+The Court's decision in Ramos directly affected Louisiana 
+and Oregon, which were the only two States that still al­
+lowed non-unanimous juries. For those States, this Court's 
+decision in Ramos immediately triggered a pressing ques­
+tion: Does Ramos apply retroactively to overturn fnal con­
+victions on federal collateral review? We granted certiorari 
+in Edwards's case to decide that question. 590 U. S. ––– 
+(2020). We conclude that Ramos does not apply retroac­
+tively on federal collateral review. 
+A 
+A new rule of criminal procedure applies to cases on direct 
+review, even if the defendant's trial has already concluded. 
+See Griffth v. Kentucky, 479 U. S. 314, 328 (1987). But 
+under the habeas corpus statute as interpreted by this 
+Court, a new rule of criminal procedure ordinarily does not 
+apply retroactively to overturn fnal convictions on federal 
+collateral review. See Teague v. Lane, 489 U. S. 288, 310 
+(1989) (plurality opinion); Penry v. Lynaugh, 492 U. S. 302, 
+313–314 (1989).2 
+1 Ramos does not apply to defendants charged with petty offenses, 
+which typically are offenses that carry a maximum prison term of six 
+months or less. 590 U. S., at –––, n. 7. See also Blanton v. North Las 
+Vegas, 489 U. S. 538, 543 (1989) (defning petty offense). 
+2 Before Griffth v. Kentucky, 479 U. S. 314 (1987), the Court sometimes 
+would decline to apply new procedural rules even to cases on direct review. 
+See, e. g., Johnson v. New Jersey, 384 U. S. 719, 721 (1966) (rule announced 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+263 
+Opinion of the Court 
+In stating that new procedural rules ordinarily do not 
+apply retroactively on federal collateral review, Teague rein­
+forced what had already been the Court's regular practice 
+for several decades under the retroactivity standard articu­
+lated in Linkletter v. Walker, 381 U. S. 618 (1965). Link-
+letter set forth a balancing test for determining retroactivity. 
+But even under Linkletter, “new rules that constituted clear 
+breaks with the past generally were not given retroactive 
+effect,” including on federal collateral review. Teague, 489 
+U. S., at 304 (plurality opinion). 
+As the Court has explained, applying “constitutional rules 
+not in existence at the time a conviction became fnal seri­
+ously undermines the principle of fnality which is essential 
+to the operation of our criminal justice system.” Id., at 309. 
+Here, for example, applying Ramos retroactively would po­
+tentially overturn decades of convictions obtained in reliance 
+on Apodaca. Moreover, conducting scores of retrials years 
+after the crimes occurred would require signifcant state re­
+sources. See Teague, 489 U. S., at 310 (plurality opinion). 
+And a State may not be able to retry some defendants at all 
+because of “lost evidence, faulty memory, and missing wit­
+nesses.” Allen v. Hardy, 478 U. S. 255, 260 (1986) (per cu­
+riam) (internal quotation marks omitted). When previously 
+convicted perpetrators of violent crimes go free merely be­
+cause the evidence needed to conduct a retrial has become 
+stale or is no longer available, the public suffers, as do the 
+victims. See United States v. Mechanik, 475 U. S. 66, 72 
+(1986). Even when the evidence can be reassembled, con­
+ducting retrials years later inficts substantial pain on crime 
+victims who must testify again and endure new trials. In 
+this case, the victims of the robberies, kidnappings, and 
+in Miranda v. Arizona, 384 U. S. 436 (1966), applies only to cases in which 
+the trial began after the date of the Miranda decision). Griffth ended 
+that practice and declared that new rules apply to all cases on direct 
+review. 
+Page Proof Pending Publication
+
+264 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+rapes would have to relive their trauma and testify again, 15 
+years after the crimes occurred. 
+Put simply, the “costs imposed upon the States by retroac­
+tive application of new rules of constitutional law on habeas 
+corpus thus generally far outweigh the benefts of this appli­
+cation.” Sawyer v. Smith, 497 U. S. 227, 242 (1990) (internal 
+quotation marks and alteration omitted). For that reason, 
+the Court has repeatedly stated that new rules of criminal 
+procedure ordinarily do not apply retroactively on federal 
+collateral review. 
+The Court has identifed only one possible exception to 
+that principle. The Court has stated that a new procedural 
+rule will apply retroactively on federal collateral review only 
+if it constitutes a “watershed” rule of criminal procedure. 
+Teague, 489 U. S., at 311 (plurality opinion). But the Teague 
+Court stated that it was “unlikely” that such watershed 
+“components of basic due process have yet to emerge.” Id., 
+at 313; see also Whorton v. Bockting, 549 U. S. 406, 417 
+(2007); Schriro v. Summerlin, 542 U. S. 348, 352 (2004); Tyler 
+v. Cain, 533 U. S. 656, 667, n. 7 (2001). And in the 32 years 
+since Teague, as we will explain, the Court has never found 
+that any new procedural rule actually satisfes that pur­
+ported exception.3 
+B 
+To determine whether Ramos applies retroactively on fed­
+eral collateral review, we must answer two questions. 
+First, did Ramos announce a new rule of criminal proce­
+dure, as opposed to applying a settled rule? A new rule 
+3 By contrast, a new substantive rule—for example, a rule that particu­
+lar conduct cannot constitutionally be criminalized—usually applies retro­
+actively on federal collateral review. See Welch v. United States, 578 
+U. S. 120, 128–129 (2016). The parties here agree, as do we, that the rule 
+announced in Ramos is procedural. The Ramos rule affects “only the 
+manner of determining the defendant's culpability,” not the “range of con­
+duct or the class of persons that the law punishes.” Schriro v. Summer­
+lin, 542 U. S. 348, 353 (2004) (emphasis deleted). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+265 
+Opinion of the Court 
+ordinarily does not apply retroactively on federal collateral 
+review. 
+Second, if Ramos announced a new rule, does it fall within 
+an exception for watershed rules of criminal procedure that 
+apply retroactively on federal collateral review? 
+1 
+Ramos held that a state jury must be unanimous to convict 
+a defendant of a serious offense. In so holding, Ramos an­
+nounced a new rule. 
+A rule is new unless it was “dictated by precedent exist­
+ing at the time the defendant's conviction became fnal.” 
+Teague, 489 U. S., at 301 (plurality opinion). In other words, 
+a rule is new unless, at the time the conviction became fnal, 
+the rule was already “apparent to all reasonable jurists.” 
+Lambrix v. Singletary, 520 U. S. 518, 528 (1997). The stark­
+est example of a decision announcing a new rule is a decision 
+that overrules an earlier case. See Whorton, 549 U. S., 
+at 416. 
+The jury-unanimity requirement announced in Ramos was 
+not dictated by precedent or apparent to all reasonable ju­
+rists when Edwards's conviction became fnal in 2011. On 
+the contrary, before Ramos, many courts interpreted Apo­
+daca to allow for non-unanimous jury verdicts in state crimi­
+nal trials.4 
+In addition, in Ramos itself, six Members of the 
+4 See, e. g., Timbs v. Indiana, 586 U. S. –––, –––, n. 1 (2019) (the “Sixth 
+Amendment requires jury unanimity in federal, but not state, criminal 
+proceedings”); McDonald v. Chicago, 561 U. S. 742, 766, n. 14 (2010) (“The 
+Court has held that although the Sixth Amendment right to trial by jury 
+requires a unanimous jury verdict in federal criminal trials, it does not 
+require a unanimous jury verdict in state criminal trials”); Schad v. Ari­
+zona, 501 U. S. 624, 634, n. 5 (1991) (plurality opinion) (a “state criminal 
+defendant, at least in noncapital cases, has no federal right to a unanimous 
+jury verdict”); Burch v. Louisiana, 441 U. S. 130, 137 (1979) (the Court 
+has “approved the use of certain nonunanimous verdicts in cases involving 
+12-person juries”); Ludwig v. Massachusetts, 427 U. S. 618, 625 (1976) (the 
+“holding in Apodaca” was that “the jury's verdict need not be unani­
+Page Proof Pending Publication
+
+266 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+Court acknowledged that Apodaca allowed non-unanimous 
+jury verdicts in state criminal trials. See 590 U. S., at ––– 
+(Sotomayor, J., concurring in part); id., at ––– (Kavanaugh, 
+J., concurring in part); id., at ––– – ––– (Thomas, J., concur­
+ring in judgment); id., at ––– (Alito, J., joined by Roberts, 
+C. J., and Kagan, J., dissenting). And other Members of the 
+Court recognized that Apodaca at least muddied the waters 
+of the Court's Sixth Amendment jurisprudence. Id., at –––, 
+and n. 36 (plurality opinion). In short, even in Ramos itself, 
+the Court indicated that the decision was not dictated by 
+precedent or apparent to all reasonable jurists. 
+Edwards responds that the Court's decision in Ramos 
+must have applied a settled rule, not a new rule, because 
+the decision adhered to the original meaning of the Sixth 
+Amendment's right to a jury trial and the Fourteenth 
+Amendment's incorporation of that right (and others) against 
+the States. That argument confates the merits question 
+presented in Ramos with the retroactivity question pre­
+sented here. On the merits question, the critical point, as 
+the Court thoroughly explained in Ramos, is that the Consti­
+tution's text and history require a unanimous jury in state 
+criminal trials. On the retroactivity question, the critical 
+point is that reasonable jurists who considered the question 
+before Ramos interpreted Apodaca to allow non-unanimous 
+jury verdicts in state criminal trials. 
+By renouncing Apodaca and expressly requiring unani­
+mous jury verdicts in state criminal trials, Ramos plainly 
+announced a new rule for purposes of this Court's retroactiv­
+ity doctrine. And new rules of criminal procedure ordi­
+narily do not apply retroactively on federal collateral review. 
+mous”); Smith v. Swarthout, 742 F. 3d 885, 895, n. 4 (CA9 2014) (“The 
+Supreme Court has instructed that the Sixth and Fourteenth Amend­
+ments do not require a unanimous verdict in state criminal prosecutions”); 
+see also 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure 
+§ 22.1(e), p. 23 (4th ed. 2015) (the “Sixth Amendment does not require jury 
+unanimity in state criminal trials”). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+267 
+Opinion of the Court 
+2 
+Having determined that Ramos announced a new rule re­
+quiring jury unanimity, we must consider whether that new 
+rule falls within an exception for watershed rules of crimi­
+nal procedure that apply retroactively on federal collateral 
+review. 
+This Court has stated that the watershed exception is “ex­
+tremely narrow” and applies only when, among other things, 
+the new rule alters “our understanding of the bedrock proce­
+dural elements essential to the fairness of a proceeding.” 
+Whorton, 549 U. S., at 417–418 (internal quotation marks 
+omitted). 
+In the abstract, those various adjectives—watershed, nar­
+row, bedrock, essential—do not tell us much about whether 
+a particular decision of this Court qualifes for the watershed 
+exception. In practice, the exception has been theoretical, 
+not real. The Court has identifed only one pre-Teague pro­
+cedural rule as watershed: the right to counsel recognized in 
+the Court's landmark decision in Gideon v. Wainwright, 372 
+U. S. 335, 344–345 (1963). See Whorton, 549 U. S., at 419, 
+421. The Court has never identifed any other pre-Teague 
+or post-Teague rule as watershed. None. 
+Moreover, the Court has fatly proclaimed on multiple oc­
+casions that the watershed exception is unlikely to cover any 
+more new rules. Even 32 years ago in Teague itself, the 
+Court stated that it was “unlikely” that additional watershed 
+rules would “emerge.” 489 U. S., at 313 (plurality opinion). 
+And since Teague, the Court has often reiterated that “it is 
+unlikely that any such rules have yet to emerge.” Whorton, 
+549 U. S., at 417 (internal quotation marks and alteration 
+omitted); see also Beard v. Banks, 542 U. S. 406, 417 (2004); 
+Summerlin, 542 U. S., at 352; Tyler, 533 U. S., at 667, n. 7; 
+Graham v. Collins, 506 U. S. 461, 478 (1993); Sawyer, 497 
+U. S., at 243; Butler v. McKellar, 494 U. S. 407, 416 (1990). 
+Consistent with those many emphatic pronouncements, the 
+Court since Teague has rejected every claim that a new pro­
+Page Proof Pending Publication
+
+268 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+cedural rule qualifes as a watershed rule. For example, in 
+Beard v. Banks, 542 U. S., at 408, the Court declined to retro­
+actively apply the rule announced in Mills v. Maryland, 486 
+U. S. 367, 384 (1988), that capital juries may not be required 
+to disregard certain mitigating factors. In O'Dell v. Nether-
+land, 521 U. S. 151, 153 (1997), the Court refused to retroac­
+tively apply the rule announced in Simmons v. South Caro­
+lina, 512 U. S. 154, 156 (1994), that a capital defendant must 
+be able, in certain circumstances, to inform the sentencing 
+jury that he is parole ineligible. In Lambrix v. Singletary, 
+520 U. S., at 539–540, the Court declined to retroactively 
+apply the rule announced in Espinosa v. Florida, 505 U. S. 
+1079, 1082 (1992) (per curiam), that sentencers may not 
+weigh invalid aggravating circumstances before recommend­
+ing or imposing the death penalty. In Sawyer v. Smith, 497 
+U. S., at 229, the Court refused to retroactively apply the 
+rule announced in Caldwell v. Mississippi, 472 U. S. 320, 323 
+(1985), which prohibited a death sentence by a jury led to 
+the false belief that responsibility for the sentence rested 
+elsewhere. 
+The list of cases declining to retroactively apply a new rule 
+of criminal procedure extends back long before Teague to 
+some of this Court's most historic criminal procedure deci­
+sions. For example, in Johnson v. New Jersey, 384 U. S. 719, 
+721 (1966), the Court declined to retroactively apply Mi­
+randa v. Arizona, 384 U. S. 436, 444–445 (1966), which re­
+quired that police inform individuals in custody of certain 
+constitutional rights before questioning them. And in Link-
+letter v. Walker, 381 U. S., at 639–640, the Court refused to 
+retroactively apply Mapp v. Ohio, 367 U. S. 643, 655 (1961), 
+which incorporated the Fourth Amendment exclusionary 
+rule against the States. 
+Edwards seeks to distinguish Ramos from the long line of 
+cases where the Court has declined to retroactively apply 
+new procedural rules. Edwards emphasizes three aspects 
+of Ramos: (i) the signifcance of the jury-unanimity right; (ii) 
+Ramos's reliance on the original meaning of the Constitution; 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+269 
+Opinion of the Court 
+and (iii) the effect of Ramos in preventing racial discrimina­
+tion in the jury process. 
+But Edwards's attempts to distinguish Ramos are unavail­
+ing because the Court has already considered and rejected 
+those kinds of arguments in prior retroactivity cases. 
+First, Edwards emphasizes the signifcance of the jury-
+unanimity right for criminal defendants. But that argu­
+ment for retroactivity cannot be squared with the Court's 
+decisions in Duncan v. Louisiana, 391 U. S. 145 (1968), and 
+DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam). In 
+Duncan, the Court repudiated several precedents and ruled 
+that a defendant has a constitutional right to a jury trial in 
+a state criminal case. 391 U. S., at 149–150, 154–155. Not­
+withstanding the extraordinary signifcance of Duncan in 
+guaranteeing a jury trial and expanding the rights of crimi­
+nal defendants, the Court in DeStefano declined to retroac­
+tively apply the jury right. 392 U. S., at 633; see also Sum-
+merlin, 542 U. S., at 356–358 (relying on DeStefano and 
+rejecting retroactivity of jury right recognized in Ring v. 
+Arizona, 536 U. S. 584, 589 (2002)). We cannot discern a 
+principled basis for retroactively applying the subsidiary 
+Ramos jury-unanimity right when the Court in DeStefano 
+declined to retroactively apply the broader jury right itself.5 
+5 Edwards argues that the Ramos rule mirrors the rule announced in 
+Burch v. Louisiana, 441 U. S. 130, 134 (1979). In Burch, the Court held 
+that six-person jury verdicts must be unanimous. According to Edwards, 
+the Court retroactively applied Burch in Brown v. Louisiana, 447 U. S. 
+323 (1980). But the Justices who concurred in the judgment and supplied 
+the decisive opinion in Brown said only that the Burch rule should apply 
+to all cases on direct review. 447 U. S., at 337 (opinion of Powell, J., joined 
+by Stevens, J.). They did not say that the rule should apply retroactively 
+on federal collateral review. So Brown does not help Edwards here. 
+The Court's decision in Ivan V. v. City of New York, 407 U. S. 203 (1972) 
+(per curiam), is no more helpful to Edwards. In In re Winship, the Court 
+held that a jury must fnd guilt “beyond a reasonable doubt.” 397 U. S. 
+358, 364 (1970). And in Ivan V., the Court held that the rule announced 
+in Winship applied in a case on direct review. 407 U. S., at 205. But in 
+its numerous retroactivity cases, this Court has never identifed the 
+Winship rule as a watershed rule of criminal procedure that applies retro­
+Page Proof Pending Publication
+
+270 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+Second, Edwards stresses that Ramos relied on the origi­
+nal meaning of the Sixth Amendment. But that argument 
+for retroactivity is inconsistent with Crawford v. Washing­
+ton, 541 U. S. 36 (2004), and Whorton v. Bockting, 549 U. S. 
+406 (2007). In Crawford, the Court relied on the original 
+meaning of the Sixth Amendment's Confrontation Clause to 
+overrule precedent and restrict the use of hearsay evidence 
+against criminal defendants. 541 U. S., at 60–69. Notwith­
+standing Crawford's reliance on the original meaning of the 
+Sixth Amendment, the Court in Whorton declined to retro­
+actively apply Crawford. 549 U. S., at 421. 
+Third, Edwards says that Ramos prevents racial discrimi­
+nation by ensuring that the votes of all jurors, regardless 
+of race, matter in the jury room. But that argument for 
+retroactivity cannot prevail in light of Batson v. Kentucky, 
+476 U. S. 79 (1986), and Allen v. Hardy, 478 U. S. 255 (1986) 
+(per curiam). In Batson, the Court overruled precedent 
+and revolutionized day-to-day jury selection by holding that 
+state prosecutors may not discriminate on the basis of race 
+when exercising individual peremptory challenges. 476 
+U. S., at 92–93, 96–98. Nonetheless, the Court in Allen de­
+clined to retroactively apply Batson. 478 U. S., at 261; see 
+also Teague, 489 U. S., at 295–296 (reaffrming Allen). 
+The Court's decisions in Duncan, Crawford, and Batson 
+were momentous and consequential. All three decisions 
+fundamentally reshaped criminal procedure throughout the 
+actively on federal collateral review. That no doubt explains why, in his 
+submissions to this Court, Edwards himself did not cite Ivan V. in support 
+of his retroactivity argument. 
+In any event, Brown and Ivan V. were pre-Teague decisions. See 
+Teague v. Lane, 489 U. S. 288 (1989). Because Teague tightened the pre­
+vious standard set forth in Linkletter v. Walker, 381 U. S. 618 (1965), 
+for applying a decision retroactively on federal collateral review, pre-
+Teague decisions holding that a rule is retroactive are not as relevant as 
+pre-Teague decisions holding that a rule is not retroactive, such as 
+DeStefano. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+271 
+Opinion of the Court 
+United States and signifcantly expanded the constitutional 
+rights of criminal defendants. One involved the jury-trial 
+right, one involved the original meaning of the Sixth Amend­
+ment's Confrontation Clause, and one involved racial discrim­
+ination in jury selection. Yet the Court did not apply any 
+of those decisions retroactively on federal collateral review. 
+Ramos is likewise momentous and consequential. But we 
+see no good rationale for treating Ramos differently from 
+Duncan, Crawford, and Batson. 
+Consistent with the 
+Court's long line of retroactivity precedents, we hold that 
+the Ramos jury-unanimity rule does not apply retroactively 
+on federal collateral review.6 
+In so concluding, we recognize that the Court's many ret­
+roactivity precedents taken together raise a legitimate ques­
+tion: If landmark and historic criminal procedure decisions— 
+including Mapp, Miranda, Duncan, Crawford, Batson, and 
+now Ramos—do not apply retroactively on federal collateral 
+review, how can any additional new rules of criminal proce­
+dure apply retroactively on federal collateral review? At 
+this point, some 32 years after Teague, we think the only 
+candid answer is that none can—that is, no new rules of 
+criminal procedure can satisfy the watershed exception. We 
+cannot responsibly continue to suggest otherwise to litigants 
+and courts. In Teague itself, the Court recognized that the 
+purported exception was unlikely to apply in practice, be­
+cause it was “unlikely” that such watershed “components of 
+basic due process have yet to emerge.” 489 U. S., at 313 
+(plurality opinion). The Court has often repeated that “it 
+is unlikely that any of these watershed rules has yet to 
+emerge.” Tyler, 533 U. S., at 667, n. 7 (alteration and inter­
+nal quotation marks omitted); see also, e. g., Whorton, 549 
+6 The Ramos rule does not apply retroactively on federal collateral re­
+view. States remain free, if they choose, to retroactively apply the jury-
+unanimity rule as a matter of state law in state post-conviction proceed­
+ings. See Danforth v. Minnesota, 552 U. S. 264, 282 (2008). 
+Page Proof Pending Publication
+
+272 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+U. S., at 417; Summerlin, 542 U. S., at 352. And for decades, 
+the Court has rejected watershed status for new procedural 
+rule after new procedural rule, amply demonstrating that 
+the purported exception has become an empty promise. 
+Continuing to articulate a theoretical exception that never 
+actually applies in practice offers false hope to defendants, 
+distorts the law, misleads judges, and wastes the resources 
+of defense counsel, prosecutors, and courts. Moreover, no 
+one can reasonably rely on an exception that is non-existent 
+in practice, so no reliance interests can be affected by forth­
+rightly acknowledging reality. It is time—probably long 
+past time—to make explicit what has become increasingly 
+apparent to bench and bar over the last 32 years: New proce­
+dural rules do not apply retroactively on federal collateral 
+review. The watershed exception is moribund. It must 
+“be regarded as retaining no vitality.” Herrera v. Wyo­
+ming, 587 U. S. –––, ––– (2019) (internal quotation marks 
+omitted). 
+3 
+We respectfully offer four responses to the dissent. 
+First, in the dissent's view, if a right is important enough 
+to justify overruling or repudiating precedent (as in Ramos), 
+then it often is important enough to apply retroactively as 
+a watershed rule of criminal procedure. But the Court's 
+precedents say the opposite and demonstrate that the dis­
+sent's position erroneously inverts stare decisis and Teague. 
+Teague recognized that the Court would occasionally an­
+nounce new rules of criminal procedure by overruling or re­
+pudiating existing precedents. Teague further explained, 
+however, that it was “unlikely” that such new procedural 
+rules would apply retroactively on federal collateral review. 
+489 U. S., at 313 (plurality opinion). In other words, under 
+this Court's longstanding case law, it is easier to overrule or 
+repudiate a precedent—as the Court did in Mapp, Miranda, 
+Duncan, Batson, and Crawford, for example—than it is to 
+apply the new procedural rule retroactively on federal collat­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+273 
+Opinion of the Court 
+eral review—as demonstrated by the Court's corresponding 
+non-retroactivity decisions in Linkletter, Johnson, DeStef­
+ano, Allen, and Whorton. 
+The Ramos Court fully understood all of this. Although 
+Ramos stopped short of expressly deciding this retroactivity 
+question (because it was not squarely presented), Ramos dis­
+cussed retroactivity and plainly foreshadowed today's deci­
+sion. The lead opinion in Ramos—which was joined in rele­
+vant part by two of today's dissenters, Justice Breyer and 
+Justice Sotomayor—explained that overruling or repudi­
+ating Apodaca was not likely to signifcantly affect Louisi­
+ana's and Oregon's reliance interests in preserving fnal con­
+victions because Ramos was not likely to apply retroactively 
+on federal collateral review. In particular, the lead opinion 
+said that the States' “worries” about Ramos applying retro­
+actively and overturning hundreds of fnal convictions out­
+stripped “the facts” because “Teague's test is a demanding 
+one, so much so that this Court has yet to announce a new 
+rule of criminal procedure capable of meeting it.” Ramos, 
+590 U. S., at ––– (opinion of Gorsuch, J.); see also id., at ––– – 
+––– (Kavanaugh, J., concurring in part). The lead opinion 
+added that Teague is “demanding by design, expressly cali­
+brated to address the reliance interests States have in the 
+fnality of their criminal judgments.” Id., at ––– (opinion of 
+Gorsuch, J.). In light of that explicit language in Ramos, 
+the Court's decision today can hardly come as a surprise. 
+In short, the Court's holding today—namely, that Ramos 
+does not apply retroactively on federal collateral review— 
+carefully adheres to Ramos and tracks the Court's many 
+longstanding precedents on retroactivity. 
+Second, the dissent suggests that the Court knows that 
+Ramos should apply retroactively under the watershed ex­
+ception, but wants to avoid applying Ramos retroactively, 
+and for that reason has decided to just eliminate the water­
+shed exception altogether. That suggestion is unfounded. 
+Ramos was a momentous decision, and those of us who 
+Page Proof Pending Publication
+
+274 
+EDWARDS v. VANNOY 
+Opinion of the Court 
+joined it continue to agree with it. But as we have ex­
+plained, Ramos itself analyzed the Court's retroactivity prec­
+edents and foretold today's decision on retroactivity. We 
+are simply following through on what Ramos (as well as the 
+Court's many other precedents) already said about retroac­
+tivity to now squarely hold that Ramos does not apply retro­
+actively on federal collateral review. If we thought other­
+wise and believed that Ramos qualifed under the Court's 
+precedents as a rule that applies retroactively, we would cer­
+tainly say so. But applying our retroactivity precedents, we 
+have concluded that Ramos does not apply retroactively— 
+just as the Court has previously held that other historic 
+cases like Mapp, Miranda, Duncan, Batson, and Crawford 
+did not apply retroactively. After reaching that conclusion, 
+we then took account of the overall jurisprudential landscape 
+of the last several decades in Teague cases and acknowledged 
+what has become unmistakably clear: The purported water­
+shed exception is moribund. 
+Third, on that last point, the dissent responds that Teague 
+nominally identifed a retroactivity exception for watershed 
+procedural rules and that we should do so as well. But the 
+problem, as we see it, is that Teague simultaneously said that 
+it was “unlikely” that new procedural rules would qualify as 
+watershed. 489 U. S., at 313 (plurality opinion). So Teague 
+took with one hand what it seemingly gave with the other. 
+And in the 32 years since Teague, this Court has never once 
+held that a new procedural rule qualifes for the purported 
+watershed exception. What is more, the Court has regu­
+larly repeated that Teague's watershed exception would 
+likely never be satisfed. The Court today need not and 
+does not overrule any post-Teague cases that held the water­
+shed exception satisfed because there are no post-Teague 
+cases that held the watershed exception satisfed. 
+As noted above, no stare decisis values would be served 
+by continuing to indulge the fction that Teague's purported 
+watershed exception endures. No one can reasonably rely 
+on a supposed exception that has never operated in practice. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+275 
+Opinion of the Court 
+And perpetuating what has become an illusory exception 
+misleads litigants and judges, and needlessly expends the 
+scarce resources of defense counsel, prosecutors, and courts. 
+At this point, given that landmark cases like Mapp, Mi­
+randa, Duncan, Batson, Crawford, and now Ramos have not 
+applied retroactively, we are simply acknowledging reality 
+and stating the obvious: The purported watershed exception 
+retains no vitality. 
+Fourth, the dissent asserts that the Court is not living up 
+to the promise of Ramos for criminal defendants. To begin 
+with, the dissent cannot reasonably charge the Court with 
+failing to live up to Ramos given that Ramos itself explicitly 
+forecast today's decision on retroactivity. Moreover, with 
+respect, Justice Kagan dissented in Ramos. To be sure, 
+the dissent's position on the jury-unanimity rule in Ramos 
+was perfectly legitimate, as is the dissent's position on retro-
+activity in today's case. And it is of course fair for a dissent 
+to vigorously critique the Court's analysis. But it is another 
+thing altogether to dissent in Ramos and then to turn around 
+and impugn today's majority for supposedly shortchanging 
+criminal defendants. To properly assess the implications for 
+criminal defendants, one should assess the implications of 
+Ramos and today's ruling together. And criminal defend­
+ants as a group are better off under Ramos and today's deci­
+sion, taken together, than they would have been if Justice 
+Kagan's dissenting view had prevailed in Ramos. If the 
+dissent's view had prevailed in Ramos, no defendant would 
+ever be entitled to the jury-unanimity right—not on collat­
+eral review, not on direct review, and not in the future. By 
+contrast, under the Court's holdings in Ramos and this case, 
+criminal defendants whose cases are still on direct review or 
+whose cases arise in the future will have the beneft of the 
+jury-unanimity right announced in Ramos. The rhetoric in 
+today's dissent is misdirected. Different Members of the 
+Court have reached different conclusions in Ramos and in 
+this case, but each Member of the Court has acted in good 
+faith in deciding the diffcult questions before us. 
+Page Proof Pending Publication
+
+276 
+EDWARDS v. VANNOY 
+Thomas, J., concurring 
+*
+*
+* 
+To summarize the Court's retroactivity principles: New 
+substantive rules alter “the range of conduct or the class of 
+persons that the law punishes.” Summerlin, 542 U. S., at 
+353. Those new substantive rules apply to cases pending in 
+trial courts and on direct review, and they also apply retroac­
+tively on federal collateral review. New procedural rules 
+alter “only the manner of determining the defendant's cul­
+pability.” Ibid. (emphasis deleted). Those new procedural 
+rules apply to cases pending in trial courts and on direct 
+review. But new procedural rules do not apply retroac­
+tively on federal collateral review. 
+Ramos announced a new rule of criminal procedure. It 
+does not apply retroactively on federal collateral review. 
+We affrm the judgment of the U. S. Court of Appeals for the 
+Fifth Circuit. 
+It is so ordered. 
+Justice Thomas, with whom Justice Gorsuch joins, 
+concurring. 
+I join the majority in full because it correctly charts its 
+way through precedent to hold expressly what we have long 
+implied: “New procedural rules do not apply retroactively on 
+federal collateral review.” Ante, at 272. I write separately 
+to highlight that we could also have resolved this case by 
+applying the statutory text of the Antiterrorism and Effec­
+tive Death Penalty Act of 1996 (AEDPA). AEDPA directs 
+federal courts to deny “any claim that was adjudicated on 
+the merits in State court” unless the state court's decision 
+“was contrary to, or involved an unreasonable application of, 
+clearly established Federal law, as determined by the Su­
+preme Court.” 28 U. S. C. § 2254(d)(1). In 2011, petitioner 
+urged a Louisiana court to hold that the Federal Constitution 
+requires jury unanimity, and the court rejected that claim on 
+the merits. That conclusion was consistent with Apodaca v. 
+Oregon, 406 U. S. 404 (1972), in which this Court deter­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+277 
+Thomas, J., concurring 
+mined that the Constitution does not require unanimous jury 
+verdicts for state criminal convictions. AEDPA thus leaves 
+no room for this Court—or any federal court—to grant 
+relief. 
+I 
+A 
+Congress frst prescribed federal habeas jurisdiction in the 
+Judiciary Act of 1789. That statute did not clearly defne 
+the scope of relief, but “the black-letter principle of the com­
+mon law [was] that the writ was simply not available at all 
+to one convicted of crime by a court of competent jurisdic­
+tion.” 1 
+Bator, Finality in Criminal Law and Federal Ha­
+beas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465– 
+466 (1963) (Bator); see Felker v. Turpin, 518 U. S. 651, 663 
+(1996) (citing Ex parte Watkins, 3 Pet. 193 (1830)). And the 
+writ did not extend at all to prisoners confned under state 
+authority. Bator 465. 
+Congress expanded the writ in the Habeas Corpus Act of 
+1867. Ch. 28, 14 Stat. 385. This Act extended the writ to 
+prisoners in state custody but again provided only “bare 
+guidelines” about the scope of the writ.2 
+Wright v. West, 
+505 U. S. 277, 285 (1992) (plurality opinion). At frst, this 
+Court continued to apply the common-law rule that allowed 
+1 Section 14 of the Judiciary Act provided that “courts of the United 
+States . . . shall have power to issue writs of . . . habeas corpus” and that 
+“justices of the supreme court, as well as judges of the district courts, 
+shall have power to grant writs of habeas corpus for the purpose of an 
+inquiry into the cause of commitment.—Provided, That writs of habeas 
+corpus shall in no case extend to prisoners in gaol, unless where they are 
+in custody, under or by colour of the authority of the United States, or are 
+committed for trial before some court of the same, or are necessary to be 
+brought into court to testify.” 1 Stat. 81–82. 
+2 The relevant language of the Act stated that courts, “in addition to the 
+authority already conferred by [the Judiciary Act of 1789], shall have 
+power to grant writs of habeas corpus in all cases where any person may 
+be restrained of his or her liberty in violation of the constitution, or of any 
+treaty or law of the United States.” 14 Stat. 385. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+278 
+EDWARDS v. VANNOY 
+Thomas, J., concurring 
+a state petitioner to challenge only “the jurisdiction of the 
+court that had rendered the judgment under which he was 
+in custody.” Ibid. But the Court later “expand[ed] the cat­
+egory of claims deemed to be jurisdictional for habeas pur­
+poses.” Ibid. In 1874, for example, this Court found juris­
+dictional defects whenever state courts imposed sentences 
+under unconstitutional statutes or imposed sentences not au­
+thorized by a statute. Ibid. (collecting cases). And a few 
+decades later, the Court expanded relief to situations where, 
+in the eyes of the federal court, “no state court had provided 
+a full and fair opportunity to litigate” a prisoner's federal 
+claims. Ibid. But absent a “jurisdictional” defect, a state 
+court judgment was entitled to “ `absolute respect' ” as long 
+as the prisoner “ `had been given an adequate opportunity to 
+obtain full and fair consideration of his federal claim in the 
+state courts.' ” Ibid. That rule left no room to grant relief 
+simply because a state court made an error of law. 
+In 1953, this Court abruptly changed course and decided 
+that federal courts could grant a writ of habeas corpus sim­
+ply because they disagreed with a state court's judgment. 
+See Brown v. Allen, 344 U. S. 443, 463. Around the same 
+time, this Court declared that many constitutional rights 
+of criminal procedure—some old, and some new—applied 
+against the States. See, e. g., Mapp v. Ohio, 367 U. S. 643 
+(1961) (exclusionary rule); Gideon v. Wainwright, 372 U. S. 
+335 (1963) (right to a court-appointed attorney); Miranda v. 
+Arizona, 384 U. S. 436 (1966) (right to be informed of right 
+against self-incrimination). That combination predictably 
+raised tough questions: Should new rules apply retroactively 
+to fnal state-court judgments, allowing federal courts to 
+grant habeas relief even if state courts did not err when issu­
+ing their decisions? And if so, by what authority could fed­
+eral courts grant that relief? 
+Admitting that “the Constitution neither prohibits nor re­
+quires retrospective effect,” Linkletter v. Walker, 381 U. S. 
+
+Cite as: 593 U. S. 255 (2021) 
+279 
+Thomas, J., concurring 
+618, 629 (1965), the Court took an atextual and ad hoc ap­
+proach, presumably based on its interpretation of the 1867 
+Act. The Court declared that some federal decisions apply 
+retroactively to fnal state convictions, thus allowing federal 
+courts to grant habeas relief depending on the “merits and 
+demerits in each case.” Ibid. To guide the analysis, Link-
+letter announced several factors for federal courts to con­
+sider: “the prior history of the rule in question, its purpose 
+and effect, and whether retrospective operation will further 
+or retard its operation.” Ibid. 
+This rule did “not le[ad] to consistent results,” so two dec­
+ades later the Court tried a new interpretation of the 1867 
+Act. See Teague v. Lane, 489 U. S. 288, 302 (1989) (plurality 
+opinion); Danforth v. Minnesota, 552 U. S. 264, 278 (2008) 
+(“Teague's general rule of nonretroactivity was an exercise of 
+this Court's power to interpret the federal habeas statute”). 
+Relevant here, Teague allowed federal courts to give new 
+constitutional rules of criminal procedure retroactive effect 
+on habeas review only if the new rule was “watershed,” 
+“ `bedrock,' ” or “ `essential.' ” 489 U. S., at 311 (emphasis 
+deleted).3 
+B 
+Teague, however, was not the fnal word on how federal 
+courts should review the decisions of state courts. In 1996, 
+Congress enacted AEDPA, the most signifcant change to 
+3 Two years before Teague, this Court overruled cases that had allowed 
+courts to apply the balancing test in Linkletter v. Walker, 381 U. S. 
+618 (1965), to cases on direct review, holding instead that the Constitution 
+required courts to apply new procedural rules retroactively to cases 
+on direct appellate review. Griffth v. Kentucky, 479 U. S. 314, 328 (1987). 
+Teague also explained that new rules that “accord constitutional pro­
+tection to . . . primary activity” retroactively apply to cases on fed­
+eral collateral review. 489 U. S., at 307, 310–311. These are considered 
+substantive rules. 
+See Welch v. United States, 578 U. S. 120, 128 
+(2016). 
+Page Proof Pending Publication
+
+280 
+EDWARDS v. VANNOY 
+Thomas, J., concurring 
+the habeas corpus statute since 1867. AEDPA flled in the 
+“bare guidelines” of the 1867 Act by creating a comprehen­
+sive system for addressing federal habeas claims brought by 
+state prisoners. See Wright, 505 U. S., at 285. 
+Directly relevant here are two provisions that ensure that 
+state courts have the primary role in adjudicating these 
+claims. First, a prisoner must exhaust his claims in state 
+court before he can seek relief in federal court. If “any 
+available [state-law] procedure” remains open, a federal 
+“writ of habeas corpus . . . shall not be granted.” §§ 2254(b)– 
+(c). Second, once a state court has had the opportunity to 
+decide that claim, AEDPA demands that federal courts re­
+spect that judgment. The law precludes relief “with respect 
+to any claim that was adjudicated on the merits in State 
+court proceedings unless the adjudication of the claim” either 
+(1) “resulted in a decision that was contrary to, or involved 
+an unreasonable application of, clearly established Federal 
+law, as determined by the Supreme Court of the United 
+States,” or (2) “resulted in a decision that was based on an 
+unreasonable determination of the facts in light of the evi­
+dence presented in the State court proceeding.” § 2254(d). 
+It is not enough for a federal court to disagree with the state 
+court—much less disagree on a point of law that this Court 
+had not yet settled when the state court issued its judgment. 
+Rather, the state court's decision must confict with clearly 
+established law and be obviously wrong “beyond any possi­
+bility for fairminded disagreement.” Harrington v. Rich­
+ter, 562 U. S. 86, 103 (2011); Greene v. Fisher, 565 U. S. 34, 
+38–40 (2011). 
+II 
+A 
+Here, the system worked as designed. Edwards pre­
+sented his unanimous jury claim to a Louisiana court. And 
+the state court reasonably relied on Apodaca in rejecting 
+that claim. AEDPA is clear about what happens next— 
+relief “shall not be granted.” § 2254(d). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+281 
+Thomas, J., concurring 
+Our analysis could have begun and ended there—with 
+§ 2254(d)(1)'s plain text. Congress, through AEDPA, has 
+made clear that federal courts cannot provide relief in this 
+case. See Montgomery v. Louisiana, 577 U. S. 190, 221 
+(2016) (Scalia, J., dissenting); see also Ex parte Bollman, 4 
+Cranch 75, 94 (1807) (Marshall, C. J.) (“[T]he power to award 
+the writ by any of the courts of the United States, must be 
+given by written law”). 
+B 
+The Court, instead, relies on Teague. I join the Court's 
+opinion because it correctly applies precedent and leads to 
+the same judgment, but I would be remiss if I did not point 
+out two other problems with Teague. 
+First, it has never been clear what gave this Court author­
+ity to grant habeas relief to state prisoners based on “new” 
+constitutional rules of criminal procedure. Teague did not 
+explain why the 1867 Act gave federal courts this power. 
+Moreover, Teague primarily focused on moving the law in 
+the opposite direction of Linkletter's permissive approach to 
+collaterally reviewing fnal state convictions. See Danforth, 
+552 U. S., at 278 (“Teague . . . situated the rule it announced 
+in th[e] line of cases adjusting the scope of federal habeas 
+relief in accordance with equitable and prudential considera­
+tions”). Even if federal courts had this power, we never de­
+cided whether Congress' most recent version of the habeas 
+statute—AEDPA—continued to allow such relief. Given all 
+that, the majority wisely closes a door to retroactive relief 
+that likely never existed in the frst place. 
+Second, the Court's reliance on Teague today and in the 
+past should not be construed to signal that AEDPA is an 
+afterthought in analyzing a claim like petitioner's or that 
+Teague could justify relief where AEDPA forecloses 
+it. AEDPA does contemplate that some new constitutional 
+rules might be retroactive in narrow circumstances. See 
+§§ 2254(e)(2)(A)(i) (evidentiary hearings), 2244(b)(2)(A) 
+(second-or-successive bar), 2244(d)(1)(C) (statute of limita­
+Page Proof Pending Publication
+
+282 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+tions). But it does not contemplate retroactive rules upset­
+ting a state court's adjudication of an issue that reasonably 
+applied the law at the time. Section 2254(d)—the absolute 
+bar on claims that state courts reasonably denied—has no 
+exception for retroactive rights. Congress' decision to cre­
+ate retroactivity exceptions to the statute of limitations and 
+to the bar on second-or-successive petitions but not for 
+§ 2254(d) is strong evidence that Teague could never have led 
+to relief here. Russello v. United States, 464 U. S. 16, 23 
+(1983).4 
+The plain text applies regardless of what a previous 
+interpretation of a previous statute says.5 
+*
+*
+* 
+A state court rejected petitioner's claim that he was enti­
+tled to a unanimous jury verdict. That adjudication was not 
+unreasonable or contrary to clearly established federal law. 
+AEDPA's explicit directive thus independently resolves this 
+case: “a writ of habeas corpus . . . shall not be granted.” 
+§ 2254(d). 
+Justice Gorsuch, with whom Justice Thomas joins, 
+concurring. 
+Sometimes this Court leaves a door ajar and holds out the 
+possibility that someone, someday might walk through it— 
+4 As Justice Gorsuch correctly points out, federal courts have “equita­
+ble discretion to decide whether to issue the writ or to provide a remedy,” 
+which includes the powers to create doctrines such as harmless error. 
+Post, at 289 (concurring opinion). And federal courts can rely on those 
+doctrines as well as statutory bars to deny relief. That is why, as Justice 
+Gorsuch explains, an equitable retroactivity bar with no watershed ex­
+ception can independently justify denying relief. Post, at 291, n. 5. 
+5 The Constitution does not require that habeas relief be available for 
+new “watershed” rules of criminal procedure. See, e. g., Brown v. Allen, 
+344 U. S. 443, 532–533 (1953) (Jackson, J., concurring in result); Linkletter, 
+381 U. S., at 629. Teague also acknowledged that a later change in law 
+does not require invalidating a fnal judgment. See 489 U. S., at 308–309 
+(plurality opinion). And again, habeas corpus traditionally did not apply 
+at all to prisoners sentenced by a court with valid jurisdiction. See Bator 
+465–466. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+283 
+Gorsuch, J., concurring 
+though no one ever has or, in truth, ever will. In Teague v. 
+Lane, 489 U. S. 288 (1989), the Court suggested that one day 
+it might apply a new “watershed” rule of criminal procedure 
+retroactively to undo a fnal state court conviction. But that 
+day never came to pass. Instead, over the following three 
+decades this Court denied “watershed” status to one rule 
+after another. Rules guaranteeing individuals the right to 
+confront their accusers. Rules ensuring that only a jury 
+may decide a defendant's fate in a death penalty case. Rules 
+preventing racially motivated jury selection. All failed to 
+win retroactive application. Today, the Court candidly ad­
+mits what has been long apparent: Teague held out a “false 
+hope” and the time has come to close its door. Ante, at 272. 
+We take this step not because this Court's criminal proce­
+dure rulings are somehow unimportant. Any decision seek­
+ing to enforce liberties enshrined in the Constitution has 
+a claim to “watershed” importance. Instead, we abandon 
+Teague's test because it poses a question this Court has no 
+business asking. 
+I 
+Though we often refer to the writ of habeas corpus, the 
+common law knew several. 
+See Ex parte Bollman, 4 
+Cranch 75, 97–98 (1807). All had one thing in common: 
+Each required a custodian to produce (habeas) a prisoner's 
+person (corpus). But they served different ends. Some 
+writs were tools for moving a prisoner from one court to 
+another—whether for a new prosecution (ad respondendum) 
+or to execute a prior judgment (ad satisfaciendum). Others 
+functioned more like a subpoena to procure a prisoner's pres­
+ence to testify in court (ad testifcandum). Others still 
+served to remove a case from an inferior court to a superior 
+one (cum causa). 3 W. Blackstone, Commentaries on the 
+Laws of England 129–131 (1768). 
+Among them all, however, only one came to be known as 
+“The Great Writ.” The writ of habeas corpus ad subjicien­
+dum was a mechanism for asking “why the liberty of [a] sub-
+jec[t] is restrained.” Id., at 131 (emphasis added). Lead­
+Page Proof Pending Publication
+
+284 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+ing up to the English Civil War, monarchs sometimes jailed 
+their subjects summarily and indefnitely, with little explana­
+tion and even less process. E. g., Darnel's Case, 3 How. 
+St. Tr. 1–59 (K. B. 1627). In response, common law courts 
+developed the ad subjiciendum writ to force the Crown to 
+provide reasons for its actions and, if necessary, to ensure 
+adequate process—like a criminal trial—to justify any fur­
+ther detention. See Petition of Right, 3 Car. 1, ch. 1, ¶¶ 5, 
+8 (1628). In other words, “habeas corpus [w]as the instru­
+ment by which due process could be insisted upon.” Hamdi 
+v. Rumsfeld, 542 U. S. 507, 555 (2004) (Scalia, J., dissenting). 
+Great though it was, the writ's power was never limitless. 
+A prisoner confned under a fnal judgment of conviction by 
+a court of competent jurisdiction stood on different footing 
+than one confned by the King without trial. A court might 
+issue the writ asking, “What is the reason for confnement?” 
+But if the return came back: “Because he's serving a custo­
+dial sentence after being convicted of a crime,” the inquiry 
+was usually at an end. See Opinion on the Writ of Habeas 
+Corpus, Wilm. 77, 88, 97 Eng. Rep. 29, 36 (K. B. 1758); cf. 
+Anonymus, Cart. 221, 124 Eng. Rep. 928 (C. P. 1671); Habeas 
+Corpus Act of 1679, 31 Car. 2, ch. 2, ¶¶ 2, 20. Custody pur­
+suant to a fnal judgment was proof that a defendant had 
+received the process due to him. See, e. g., Bushell's Case, 
+Vaugh. 135, 142–143, 124 Eng. Rep. 1006, 1009–1010 (C. P. 
+1670). 
+In 1789, Congress authorized federal courts to issue the 
+habeas writ. 1 Cong. ch. 20, § 14, 1 Stat. 73, 81–82; Ex parte 
+Bollman, 4 Cranch, at 93–94. When called upon to inter­
+pret that statute, this Court defned the scope of habeas 
+review by looking “to the common law.” Id., at 93–94. 
+Unsurprisingly, it proceeded to restate the longstanding 
+rule associated with criminal judgments: Ad subjiciendum 
+provided no recourse for a prisoner confned pursuant to 
+a fnal judgment of conviction. Ex parte Watkins, 3 Pet. 
+193, 209 (1830). As Chief Justice Marshall rhetorically 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+285 
+Gorsuch, J., concurring 
+asked, “is not that judgment in itself suffcient cause?” Id., 
+at 202 (emphasis added). 
+If the answer was nearly always yes, one important excep­
+tion existed both here and in England. A habeas court 
+could grant relief if the court of conviction lacked jurisdiction 
+over the defendant or his offense. Id., at 202–203. Still, 
+the exception was “confned” to that “limited class of cases.” 
+Ex parte Parks, 93 U. S. 18, 21 (1876). One judge could 
+not grant relief just because he might have decided the 
+merits of the case differently than another had. As this 
+Court put it, a perceived “error in the judgment or pro­
+ceedings, under and by virtue of which the party is impris­
+oned, constitute[d] no ground for” relief. Ex parte Sie­
+bold, 100 U. S. 371, 375 (1880). Any other approach, the 
+Court explained, risked converting the habeas writ into “a 
+mere writ of error,” little more than a chance to redo a trial 
+or its appeal. Ibid. 
+Originally, Congress allowed federal courts to issue habeas 
+writs only to federal custodians. Reconstruction changed 
+that. After the Civil War, Congress granted federal courts 
+the power to issue habeas writs to state authorities as well. 
+See Act of Feb. 5, 1867, 39 Cong. ch. 28, § 1, 14 Stat. 385.1 
+Even then, however, this Court continued to interpret the 
+habeas statute consistent with historical practice. If a pris­
+oner was in custody pursuant to a fnal state court judgment, 
+1 That Act conferred on federal courts the “power to grant writs of ha­
+beas corpus in all cases where any person may be restrained of his or her 
+liberty in violation of” federal law. §1, 14 Stat. 385 (emphasis added). 
+Two earlier statutes extended federal habeas jurisdiction to state custodi­
+ans, but only for a much narrower class of cases. In 1833, Congress au­
+thorized federal courts to issue habeas process to state custodians detain­
+ing federal offcers for acts taken to implement federal law. Act of Mar. 
+2, 1833, § 7, 4 Stat. 634–635. 
+This provision lives on in 28 U. S. C. 
+§ 2241(c)(2). And in 1842, Congress permitted federal courts to issue ha­
+beas process to state custodians detaining foreign offcials whose acts im­
+plicated the law of nations. Act of Aug. 29, 1842, Ch. 257, 5 Stat. 539. It, 
+too, lives on in 28 U. S. C. § 2241(c)(4). 
+Page Proof Pending Publication
+
+286 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+a federal court was powerless to revisit those proceedings 
+unless the state court had acted without jurisdiction. E. g., 
+In re Graham, 138 U. S. 461, 462 (1891); Tinsley v. Anderson, 
+171 U. S. 101, 104–106 (1898); Markuson v. Boucher, 175 U. S. 
+184, 185–186 (1899); Medcraf v. Hodge, 245 U. S. 630, 630 
+(1917) (per curiam). 
+Under the view that prevailed in this country for most of 
+our history, and in England for even longer, Teague's ques­
+tion about the “retroactive” application of “watershed” rules 
+of criminal procedure to undo fnal criminal judgments would 
+have made no sense. Because a fnal judgment of convic­
+tion, pursuant to a full-fedged criminal trial, was the process 
+due to a criminal serving a custodial sentence, the habeas 
+writ had served its purpose. A fnal judgment evidenced a 
+lawful basis for confnement and was “binding on all the 
+world.” Ex parte Watkins, 3 Pet., at 207. 
+II 
+Only in the middle of the twentieth century did things 
+really begin to change. In 1915, this Court suggested that 
+a state court's extreme departure from “established modes” 
+of criminal trial practice, such as proceeding under the spec­
+ter of mob violence, might be akin to the loss of “jurisdic­
+tion,” at least if no corrective mechanism like an appeal ex­
+isted. Frank v. Mangum, 237 U. S. 309, 326, 335–336 (1915). 
+But if that represented an innovation, it was a modest one. 
+The same cannot be said for Brown v. Allen, 344 U. S. 443, 
+464, 478 (1953). There, this Court effectively recast habeas 
+as another way for federal courts to redress practically any 
+error of federal law they might fnd in state court proceed­
+ings. Never mind that state courts are obligated to follow 
+federal law under the Supremacy Clause. Never mind that 
+those courts may have already passed on a defendant's argu­
+ment about his federal rights. See id., at 487; id., at 497– 
+501 (Frankfurter, J.). Never mind, too, that the defendant 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+287 
+Gorsuch, J., concurring 
+may have lost on appeal within the state court system, and 
+even petitioned this Court for direct review. See id., at 
+456–457; id., at 489–497 (Frankfurter, J.). Everyone accepts 
+that, in our criminal justice system today, a judgment be­
+comes fnal only after the completion of a trial and the ap­
+pellate process, including the opportunity to seek certiorari 
+from this Court on questions of federal law. See Clay v. 
+United States, 537 U. S. 522, 527 (2003).2 
+Yet, even after all 
+that, Brown held, a federal district court could still vacate a 
+fnal state court judgment based on any perceived error of 
+federal law it might detect—and do so though the entire 
+state judicial system and this Court had seen nothing amiss. 
+344 U. S., at 465–487; id., at 506–507 (Frankfurter, J.). 
+The result? As Justice Jackson warned, habeas became 
+little more than an ordinary appeal with an extraordinary 
+Latin name. The Court “so departed from [the fnality] 
+principle that the profession now believes that the issues 
+[federal courts] actually consider [in] habeas corpus are 
+substantially the same as would be considered on appeal.” 
+Id., at 540 (Jackson, J., concurring in result). “The fatal 
+sentence that in real life writes fnis to many causes”— 
+Judgment affrmed. or Certiorari denied.—became “in legal 
+theory . . . a complete blank.” Id., at 543. Justice Jackson 
+feared that this result not only “trivializ[ed] . . . the 
+writ,” but promised practical problems too. Id., at 536. A 
+large new “haystack” of frivolous habeas petitions was sure 
+to follow, making it that much harder for courts to identify 
+2 When a sovereign furnishes an opportunity to appeal (as state and 
+federal governments now do), it necessarily invites an appellate court to 
+revisit an initial merits determination. See J. Baker, An Introduction to 
+English Legal History 148–153 (5th ed. 2019) (describing development of 
+the appeal at common law); G. Jacob, A New Law-Dictionary (1729) (de­
+fning “appeal”). Under an appellate system, then, “none of th[e] [preced­
+ing decisions] are fnal” in an ultimate sense until any appeals are con­
+cluded. 3 W. Blackstone, Commentaries on the Laws of England 411 
+(1768). 
+Page Proof Pending Publication
+
+288 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+the meritorious “needle.” Id., at 537. The only solution 
+Justice Jackson could see was to hold fast to the traditional 
+rule: A fnal judgment, after completion of trial and the ex­
+haustion of any direct appellate review, was res judicata, and 
+the sole exception was a lack of jurisdiction. Id., at 543– 
+544. 
+Brown not only upended centuries of settled precedent 
+and invited practical problems; it produced anomalies as well. 
+The very same term it decided Brown, this Court rejected 
+Brown's fx-any-error approach for fnal judgments issued by 
+military courts. Burns v. Wilson, 346 U. S. 137, 142 (1953) 
+(plurality opinion); id., at 147 (Minton, J., concurring in judg­
+ment). So only state convicts—not United States service 
+members—were afforded an additional avenue for appellate 
+relief in the garb of habeas corpus proceedings. It turned 
+out, too, that only state courts—not executive tribunals— 
+were forced to suffer the indignity of having their fnal judg­
+ments reopened. So federal courts wound up with more 
+power to reopen the judgments of a different sovereign's 
+courts than the administrative proceedings of the federal 
+government itself. See Rushing v. Wilkinson, 272 F. 2d 
+633, 641 (CA5 1959); M. Howe, Foreword: The Supreme 
+Court, 1952 Term, 67 Harv. L. Rev. 91, 160–162 (1953). 
+With time, these implications became clear and, as Justice 
+Jackson predicted, Brown's innovation proved unsustainable. 
+The haystack just grew too large. During the 1960s, this 
+Court incorporated the exclusionary rule against the States. 
+Mapp v. Ohio, 367 U. S. 643, 655 (1961). It announced a 
+Sixth Amendment right to a public defender. Gideon v. 
+Wainwright, 372 U. S. 335, 339–340, 342 (1963). It barred 
+the government from speaking to the defendant outside de­
+fense counsel's presence. Massiah v. United States, 377 
+U. S. 201, 204–206 (1964). And it announced a new script 
+governing police interrogations. Miranda v. Arizona, 384 
+U. S. 436, 467–477 (1966). This proliferation of new fed­
+eral procedural rights, combined with a federal post­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+289 
+Gorsuch, J., concurring 
+conviction mechanism that functioned like an ordinary ap­
+peal, soon yielded a giant haystack of habeas petitions. 
+For years, this Court struggled to devise rules for sorting 
+the hay from the needles. Its approach varied wildly and 
+inconsistently over time. In a few cases, the Court held a 
+new rule of criminal procedure should not apply retroac­
+tively to settled convictions. Tehan v. United States ex. rel. 
+Shott, 382 U. S. 406, 409, n. 3, 419 (1966); Linkletter v. 
+Walker, 381 U. S. 618, 622, 639–640 (1965). On occasion, 
+though, it extended the beneft of a new rule to litigants with 
+fnal criminal judgments—sometimes only to the named peti­
+tioner in this Court, Jackson v. Denno, 378 U. S. 368, 377 
+(1964), other times to everyone laboring under a fnal judg­
+ment, McNerlin v. Denno, 378 U. S. 575, 575 (1964) (per cu­
+riam). Justice Harlan called these divergent results “an ex­
+traordinary collection of rules.” Desist v. United States, 394 
+U. S. 244, 256–257 (1969) (Harlan, J., dissenting). He even 
+wondered whether they could “properly be considered the 
+legitimate products of a court of law.” Id., at 259. 
+III 
+It was only in this world that Teague's question about the 
+retroactive application of new “watershed” rules of criminal 
+procedure could even begin to make sense. In an effort to 
+bring some coherence to the area, the Court refocused its 
+attention on the terms of the federal habeas statute. The 
+statute provides that “[w]rits of habeas corpus may be 
+granted”—not that they must be granted. 28 U. S. C. 
+§ 2241(a) (emphasis added); see also § 2243. The law thus in­
+vests federal courts with equitable discretion to decide 
+whether to issue the writ or to provide a remedy. Withrow 
+v. Williams, 507 U. S. 680, 716 (1993) (Scalia, J., concurring 
+in part and dissenting in part).3 
+3 That is how this Court reads nearly identical text in the Declaratory 
+Judgment Act (DJA). Because the DJA says federal courts “ `may de­
+clare the rights and other legal relations of any interested party,' ” district 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+290 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+Exercising this remedial discretion, the Court began to de­
+velop doctrines aimed at returning the Great Writ closer to 
+its historic offce. It decided that some claims are not cogni­
+zable on federal habeas review if state courts provide a 
+mechanism for review. Stone v. Powell, 428 U. S. 465, 494– 
+495 (1976). It established procedural default rules to pre­
+vent habeas petitioners from evading independent and ade­
+quate state law grounds for sustaining their convictions. 
+Wainwright v. Sykes, 433 U. S. 72, 86–87 (1977). It crafted 
+a heightened harmless error standard, calibrated to refect 
+the fnality interests at stake in the post-conviction context. 
+Brecht v. Abrahamson, 507 U. S. 619, 633–638 (1993). And 
+it applied abuse-of-the-writ rules to prevent an endless cycle 
+of petition and re-petition by prisoners with nothing but time 
+on their hands. McCleskey v. Zant, 499 U. S. 467, 489–493 
+(1991). 
+Chief among these new-but-old developments was Teague. 
+Drawing on the historic role of habeas, the Court held that 
+newly recognized rules of criminal procedure should not nor­
+mally apply to cases “which have become fnal.” 489 U. S., 
+at 304–310.4 
+Hard experience since Brown had reminded 
+the Court that fnality, “the idea that at some point a crimi­
+nal conviction reaches an end, a conclusion, a termination, `is 
+essential to the operation of our criminal justice system.' ” 
+Prost v. Anderson, 636 F. 3d 578, 582 (CA10 2011). One 
+might “always continue to ask” whether a particular judg­
+ment was “correct.” P. Bator, Finality in Criminal Law and 
+Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 
+441, 446–448 (1963). But if the rule of law means anything, 
+it means the fnal result of proceedings in courts of com­
+petent jurisdiction establishes what is correct “in the eyes 
+courts “possess discretion” to award declaratory relief. Wilton v. Seven 
+Falls Co., 515 U. S. 277, 282, 286 (1995). 
+4 Although the lead opinion in Teague garnered only a plurality, a major­
+ity of the Court adopted the plurality's rule later that same year in Penry 
+v. Lynaugh, 492 U. S. 302, 313 (1989). 
+
+Cite as: 593 U. S. 255 (2021) 
+291 
+Gorsuch, J., concurring 
+of the law.” Herrera v. Collins, 506 U. S. 390, 399–400 
+(1993).5 
+IV 
+While Teague did much to return the writ to its original 
+station, it didn't quite complete the journey. After insisting 
+that fnal judgments cannot be reopened as a “general rule,” 
+Teague left some wiggle room. It added that some new 
+rules of criminal procedure might yet apply retroactively if 
+they had “watershed” signifcance. 489 U. S., at 311. Why? 
+Because “ `time and growth in social capacity, as well as judi­
+cial perceptions,' ” might “ `alter our understanding of the 
+bedrock procedural elements' ” necessary to satisfy notions 
+of “ `fairness.' ” Ibid. To help the world know what a wa­
+tershed rule might look like, the Court described it in vari­
+ous ways—“bedrock,” “fundamental,” “central,” an “absolute 
+prerequisite.” Id., at 311–314. A rule ftting that bill, 
+Teague said, would do two things: (1) “ `signifcantly im­
+prove' ” existing procedures for determining factual guilt or 
+innocence and (2) “implicate the fundamental fairness of the 
+trial.” Id., at 312–313.6 
+5 Apparently believing our judge-made doctrines did not go far enough, 
+Congress added further “new restrictions” of its own in the Antiterrorism 
+and Effective Death Penalty Act of 1996 (AEDPA). Felker v. Turpin, 518 
+U. S. 651, 664 (1996). But AEDPA creates only additional conditions to 
+relief; it did not do away with the discretion afforded courts in the habeas 
+statute, or the various rules this Court has formulated in the exercise of 
+that discretion. As this Court has (unanimously) explained, “AEDPA did 
+not codify Teague” and the one “neither abrogates [n]or qualifes the 
+other.” Greene v. Fisher, 565 U. S. 34, 39 (2011). That is why Teague's 
+retroactivity bar operates “in addition” to AEDPA's relitigation bar in 28 
+U. S. C. § 2254(d). Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). 
+Because a retroactivity bar and a relitigation bar both pose threshold bar­
+riers, Justice Thomas's concurrence highlights how AEDPA provides an 
+additional reason why the Fifth Circuit correctly denied a certifcate of 
+appealability here. Ante, at 280 (concurring opinion); see Miller-El v. 
+Cockrell, 537 U. S. 322, 350 (2003) (Scalia, J., concurring). 
+6 Teague also discussed an exception to the fnality rule for certain “sub­
+stantive rules.” Because the parties agree that Ramos involved only a 
+Page Proof Pending Publication
+
+292 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+But all these words have yielded nothing. In more than 
+three decades since Teague, not a single new rule of criminal 
+procedure has satisfed its “watershed” test. Ante, at 267– 
+272. Nor is it as if we have lacked promising candidates. 
+This Court has refused “watershed” status to new rules that 
+seek to ensure death penalty decisions are made by jurors 
+rather than judges. See Schriro v. Summerlin, 542 U. S. 
+348 (2004) (denying watershed status to Ring v. Arizona, 
+536 U. S. 584 (2002)). New rules designed to ensure race 
+discrimination plays no role in jury selection met the same 
+fate even before Teague. See Allen v. Hardy, 478 U. S. 255 
+(1986) (per curiam) (denying retroactive application to Bat-
+son v. Kentucky, 476 U. S. 79 (1986)). Rules that sought 
+to realign our jurisprudence with the original meaning of 
+the Sixth Amendment's Confrontation Clause have failed to 
+qualify too. See Whorton v. Bockting, 549 U. S. 406 (2007) 
+(denying watershed status to Crawford v. Washington, 541 
+U. S. 36 (2004)). 
+The Court's decision today retraces this familiar path. It 
+denies “watershed” status to Ramos v. Louisiana, 590 
+U. S. ––– (2020), a decision that (like Crawford) returned us 
+to the original meaning of the Sixth Amendment—and one 
+that (like Ring and Batson) concerns a vital aspect of the 
+jury trial right. The Court explains why this result neces­
+sarily follows from our post-Teague precedents: If so many 
+other highly consequential rulings have failed to clear 
+Teague's bar, it's hard to see how Ramos might. One could 
+new rule of criminal procedure, little need be said about Teague's “substan­
+tive rule” exception. But it is worth noting that substantive rules, which 
+place certain conduct “ `beyond the power of the criminal law-making au­
+thority to proscribe,' ” 489 U. S., at 307, bear at least some resemblance to 
+this Court's early cases fnding a lack of jurisdiction over a defendant or 
+an offense. See Ex parte Siebold, 100 U. S., at 376; Ex parte Parks, 93 
+U. S., at 20–21. Perhaps this aspect of Teague can be understood as accu­
+rately invoking the jurisdictional exception to the fnality rule; perhaps 
+not. See Brown, 344 U. S., at 533, n. 4 (Jackson, J., concurring in result). 
+But that question is for another day. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 255 (2021) 
+293 
+Gorsuch, J., concurring 
+even say that any other result would defy this Court's recent 
+precedents. Ante, at 270–271. 
+At the same time, though, one might also say these prece­
+dents illustrate how mystifying the whole Teague project has 
+been from its inception. If Teague only prohibits the retro­
+active application of new rules of criminal procedure, after 
+all, it's not exactly obvious why that prohibition applies to 
+cases like Crawford or Ramos. Both decisions sought to re­
+align this Court's decisions with the original meaning of the 
+Sixth Amendment; in that sense, the rights they recognized 
+were anything but new. And to the extent Teague asks 
+whether a new rule is “fundamental” or “bedrock,” it's hard 
+to see how rights originally memorialized in the Constitution 
+could fail to qualify. Certainly, this Court is in no position 
+to second-guess the judgment of those who wrote and rati­
+fed the Constitution. Surely, too, many of the other rules 
+of criminal procedure this Court has found less than “funda­
+mental” since Teague seem anything but that to those whose 
+lives they affect. Nor is it only Teague's results that mys­
+tify. The test itself has been fraught with contradictions 
+from the start. It asks litigants to be on the lookout for new 
+procedural protections “ `implicit in the concept of ordered 
+liberty.' ” Beard v. Banks, 542 U. S. 406, 417 (2004). At the 
+same time, we have been told, the fact that “a new proce­
+dural rule is `fundamental' in some abstract sense is not 
+enough.” Summerlin, 542 U. S., at 352. 
+For me, it's here where the history canvassed above mat­
+ters. This Court's (in)activity since Teague only begins to 
+make sense when viewed against the backdrop of the tradi­
+tional rule that old judgments are impervious to new chal­
+lenges. Yes, this Court's decisions should apply to all cases 
+pending in trial courts and on direct appeal. But they 
+should not apply retroactively in habeas. The reason has 
+nothing to do with whether Members of this Court happen 
+to think the rules they announce are “new” in some sense 
+or insuffciently “fundamental” in another. It's simpler than 
+
+Page Proof Pending Publication
+294 
+EDWARDS v. VANNOY 
+Gorsuch, J., concurring 
+that: The writ of habeas corpus does not authorize federal 
+courts to reopen a judgment issued by a court of competent 
+jurisdiction once it has become fnal. Supra, at 283–286. 
+It's here, too, where today's decision makes its real contri­
+bution. If Teague pointed us back in the direction of the 
+traditional rule, each of the cases that has followed in its 
+wake has edged us, step-by-step, closer still. Today's deci­
+sion advances the progress by making express what has long 
+been barely implicit: The “watershed” exception for new 
+rules of criminal procedure is no exception at all. Ante, at 
+272. Not only does this development do much to honor the 
+traditional understanding of habeas review and the great 
+weight of this Court's precedents throughout its history. It 
+also allows us to retire a test that was unknown in law until 
+1989 and whose contours remain unknowable decades later. 
+It frees this Court from the dreary task of needing to concoct 
+reasons to denigrate the importance of obviously important 
+rules like those discussed in Ramos, Ring, Batson, and 
+Crawford, which affect the lives and liberty of countless indi­
+viduals. It does away with the strange business of having 
+to repackage old rules as new ones. And it eliminates 
+the need for litigants and lower courts to endure years of 
+protracted litigation—tangling with a contradictory test 
+and seemingly inexplicable precedents—all sure to achieve 
+nothing. 
+The Court's candor today is admirable—and 
+correct.7 
+7 The dissent criticizes today's decision as a departure from modern habeas 
+precedent. Post, at 296; post, at 297, n. 2; post, at 305–307. But the dis­
+sent's history is selective. The dissent champions decisions from the 1950s, 
+'60s, and '70s. But it disregards how those decisions departed from a cen­
+tury of this Court's precedents and the common law before that. Supra, 
+at 286–289. At the same time, the dissent's account overlooks this Court's 
+precedents refusing to afford retroactive application in every case since 
+the 1980s. Post, at 303–304; post, at 305–306, n. 7. The dissent may prefer 
+decisions within a particular 30-year window. But it is too much to say 
+this preference is required to “[r]espec[t] stare decisis.” Post, at 295, n. 1. 
+
+Cite as: 593 U. S. 255 (2021) 
+295 
+Kagan, J., dissenting 
+With these observations, I am pleased to join the Court's 
+opinion. My vote in similar cases to come will, I hope, “be 
+guided as nearly as [possible] by the principles set forth 
+herein.” Brown, 344 U. S., at 548 (Jackson, J., concurring 
+in result). 
+Justice Kagan, with whom Justice Breyer and Jus­
+tice Sotomayor join, dissenting. 
+“A verdict, taken from eleven, [i]s no verdict at all,” this 
+Court proclaimed just last Term. Ramos v. Louisiana, 590 
+U. S. –––, ––– – ––– (2020) (internal quotation marks omit­
+ted). Citing centuries of history, the Court in Ramos 
+termed the Sixth Amendment right to a unanimous jury 
+“vital,” “essential,” “indispensable,” and “fundamental” to 
+the American legal system. Id., at –––, –––, –––. The 
+Court therefore saw ft to disregard stare decisis and over­
+turn a 50-year-old precedent enabling States to convict crim­
+inal defendants based on non-unanimous verdicts.1 
+And in 
+taking that weighty step, the Court also vindicated core 
+principles of racial justice. For in the Court's view, the state 
+laws countenancing non-unanimous verdicts originated in 
+white supremacism and continued in our own time to have 
+racially discriminatory effects. See id., at ––– – –––; id., 
+at ––– (Sotomayor, J., concurring in part); id., at ––– – ––– 
+(Kavanaugh, J., concurring in part). Put all that together, 
+and it is easy to see why the opinions in Ramos read as 
+historic. Rarely does this Court make such a fundamental 
+change in the rules thought necessary to ensure fair criminal 
+process. If you were scanning a thesaurus for a single word 
+1 I dissented in Ramos precisely because of its abandonment of stare 
+decisis. See 590 U. S., at ––– – ––– (Alito, J., dissenting); see also Kimble 
+v. Marvel Entertainment, LLC, 576 U. S. 446, 455 (2015) (“Respecting 
+stare decisis means sticking to some wrong decisions”). Now that Ramos 
+is the law, stare decisis is on its side. I take the decision on its own terms, 
+and give it all the consequence it deserves. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+296 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+to describe the decision, you would stop when you came to 
+“watershed.” 
+Yet the Court insists that Ramos's holding does not count 
+as a “watershed” procedural rule under Teague v. Lane, 489 
+U. S. 288, 311 (1989) (plurality opinion). The result of to­
+day's ruling is easily stated. Ramos will not apply retroac­
+tively, meaning that a prisoner whose appeals ran out before 
+the decision can receive no aid from the change in law it 
+made. So Thedrick Edwards, unlike Evangelisto Ramos, 
+will serve the rest of his life in prison based on a 10-to-2 
+jury verdict. Only the reasoning of today's holding resists 
+explanation. The majority cannot (and indeed does not) 
+deny, given all Ramos said, that the jury unanimity require­
+ment fts to a tee Teague's description of a watershed proce­
+dural rule. Nor can the majority explain its result by rely­
+ing on precedent. Although faunting decisions since Teague 
+that held rules non-retroactive, the majority comes up with 
+none comparable to this case. Search high and low the set­
+tled law of retroactivity, and the majority still has no reason 
+to deny Ramos watershed status. 
+So everything rests on the majority's last move—the over­
+turning of Teague's watershed exception. If there can never 
+be any watershed rules—as the majority here asserts out of 
+the blue—then, yes, jury unanimity cannot be one. The re­
+sult follows trippingly from the premise. But adopting the 
+premise requires departing from judicial practice and princi­
+ple. In overruling a critical aspect of Teague, the majority 
+follows none of the usual rules of stare decisis. It discards 
+precedent without a party requesting that action. And it 
+does so with barely a reason given, much less the “special 
+justifcation” our law demands. Halliburton Co. v. Erica 
+P. John Fund, Inc., 573 U. S. 258, 266 (2014). The majority 
+in that way compounds its initial error: Not content to misap­
+ply Teague's watershed provision here, see ante, at 267–271, 
+the majority forecloses any future application, see ante, at 
+271–272. It prevents any procedural rule ever—no matter 
+
+Cite as: 593 U. S. 255 (2021) 
+297 
+Kagan, J., dissenting 
+how integral to adjudicative fairness—from benefting a de­
+fendant on habeas review. Thus does a settled principle of 
+retroactivity law die, in an effort to support an insupport­
+able ruling. 
+I 
+Start with what Teague and its progeny repeatedly said 
+about what makes a new rule of criminal procedure “water­
+shed” (so that, before today, the rule applied retroactively).2 
+A watershed rule, we held, is “implicit in the concept of or­
+dered liberty.” Teague, 489 U. S., at 311 (plurality opinion) 
+(internal quotation marks omitted). Such a rule addresses 
+one of “the bedrock procedural elements” of the criminal 
+process. Ibid. (emphasis deleted). Or similarly stated, it 
+plays a “fundamental” and “central[ ]” role in a trial. Beard 
+v. Banks, 542 U. S. 406, 418, 420 (2004). More specifcally, a 
+new rule, to qualify as watershed, must be “essential to [the 
+trial's] fairness.” Whorton v. Bockting, 549 U. S. 406, 418 
+(2007); see Teague, 489 U. S., at 312 (plurality opinion). And 
+it must go to the defendant's guilt or innocence, “prevent[ing] 
+an impermissibly large risk of an inaccurate conviction.” 
+Whorton, 549 U. S., at 418 (internal quotation marks omit­
+ted); see Teague, 489 U. S., at 312 (plurality opinion). Those 
+requirements set a high bar. But they capture—or anyway, 
+were once meant to—a “small core of rules” needed to fairly 
+adjudicate a defendant's guilt. Beard, 542 U. S., at 417. 
+The frst clue that the unanimity rule falls within Teague's 
+small core is that the Court thought its adoption justifed 
+overturning precedent. Ramos didn't just announce a new 
+rule. It reversed a prior, well-settled one. As the majority 
+recounts, “Ramos repudiated this Court's 1972 decision in 
+2 Prior to Teague, the Court gave retroactive effect to a somewhat wider 
+range of new procedural rules. See ante, at 282, n. 5; Danforth v. Minne­
+sota, 552 U. S. 264, 271–273 (2008). To fnd the no-retroactivity-ever rule 
+that the majority announces today, a time traveler would have to go back 
+to around 1950—when the Bill of Rights' protections for criminal defend­
+ants did not even apply to the States. See ibid. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+298 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+Apodaca v. Oregon, 406 U. S. 404, which had allowed non-
+unanimous juries in state criminal trials.” Ante, at 258. 
+Such a toppling of precedent needs a special justifcation— 
+more than a run-of-the-mill claim of error. To meet that de­
+mand, the Ramos majority described Apodaca as fouting the 
+essential “meaning of the Sixth Amendment's jury trial 
+right,” as revealed in both historical practice and judicial de­
+cisions. 590 U. S., at –––. Two concurring Justices added, 
+to support discarding this “egregiously wrong” precedent, 
+that the unanimity rule prevents improper verdicts: Apo­
+daca “sanctions the conviction” of some defendants who 
+would otherwise defeat the State's efforts “to [meet] its bur­
+den” of proving guilt. 590 U. S., at ––– (Kavanaugh, J.); id., 
+at ––– (Sotomayor, J.). And the majority and concurrences 
+alike invoked racial justice to support abandoning stare 
+decisis, explaining how a non-unanimity rule has posed a spe­
+cial danger of canceling Black jurors' votes. See id., at ––– 
+– –––, –––; id., at ––– (Sotomayor, J.); id., at ––– – ––– (Kav­
+anaugh, J.); infra, at 301–302. At bottom, then, the Court 
+took the unusual step of overruling precedent for the most 
+fundamental of reasons: the need to ensure, in keeping 
+with the Nation's oldest traditions, fair and dependable 
+adjudications of a defendant's guilt. In this much alone, 
+Ramos's reasoning evokes this Court's descriptions of wa­
+tershed rules.3 
+3 The majority misunderstands my point about the interaction between 
+stare decisis and Teague. I am not saying that if a “right is important 
+enough to justify overruling” precedent, then it is “important enough to 
+apply retroactively.” Ante, at 272. (If that were my claim, this dissent 
+would be far shorter.) Rather, the overruling of precedent—and more, 
+the justifcations given to support that overruling—are elements to con­
+sider when deciding on a rule's watershed status. Or, as I say above, “a 
+frst clue.” Here, that clue cuts against the majority: Ramos overturned 
+precedent (rather than just announcing a new rule) on grounds strikingly 
+reminiscent of Teague's criteria for watershed status. Still more clues, 
+pointing in the same direction, appear in the coming pages . . . . 
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 255 (2021) 
+299 
+Kagan, J., dissenting 
+And putting talk of stare decisis aside, there remains much 
+more in Ramos to echo Teague. If, as today's majority says, 
+Teague is full of “adjectives,” ante, at 267, so too is Ramos— 
+and mostly the same ones. Jury unanimity, the Court pro­
+nounced, is an “essential element[ ]” of the jury trial right, 
+and thus is “fundamental to the American scheme of justice.” 
+590 U. S., at ––– – –––. The Court discussed the rule's “an­
+cient” history—“400 years of English and American cases 
+requiring unanimity” leading up to the Sixth Amendment. 
+Id., at –––, –––. As early as the 14th century, English com­
+mon law recognized jury unanimity as a “vital right.” Id., 
+at –––. Adopting that view, the early American States like­
+wise treated unanimity as an “essential feature of the jury 
+trial.” Id., at –––. So by the time the Framers drafted the 
+Sixth Amendment, “the right to a jury trial meant a trial in 
+which the jury renders a unanimous verdict.” Id., at ––– 
+(emphasis in original). Because that was so, no jury verdict 
+could stand (or in some metaphysical sense, even exist) ab­
+sent full agreement: “A verdict, taken from eleven, was no 
+verdict at all.” Id., at ––– – ––– (internal quotation marks 
+omitted). Unanimity served as a critical safeguard, needed 
+to protect against wrongful deprivations of citizens' “hard­
+won liberty.” Id., at –––. Or as Justice Story summarized 
+the law a few decades after the Founding: To obtain a convic­
+tion, “unanimity in the verdict of the jury is indispensable.” 
+Id., at –––. 
+If a rule so understood isn't a watershed one, then nothing 
+is. (And that is, of course, what the majority eventually says.) 
+Once more, from the quotations just above: “fundamental,” 
+“essential,” “vital,” “indispensable.” No wonder today's 
+majority declares a new-found aversion to “adjectives”—or, 
+as a concurring opinion says, “all these words.” Ante, at 
+267; ante, at 292 (Gorsuch, J., concurring). The una­
+nimity rule, as Ramos described it, is as “bedrock” as bed­
+rock comes. Teague, 489 U. S., at 315 (plurality opinion). It 
+
+300 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+is as grounded in the Nation's constitutional traditions—with 
+centuries-old practice becoming part of the Sixth Amend­
+ment's original meaning. And it is as central to the Nation's 
+idea of a fair and reliable guilty verdict. When can the 
+State punish a defendant for committing a crime? Return 
+again to Ramos, this time going back to Blackstone: Only 
+when “the truth of [an] accusation” is “confrmed by the 
+unanimous suffrage” of a jury “of his equals and neighbours.” 
+590 U. S., at ––– (quoting 4 Commentaries on the Laws 
+of England 343 (1769)). For only then is the jury's fnding 
+of guilt certain enough—secure enough, mistake-proof 
+enough—to take away the person's freedom. 
+Twice before, this Court retroactively applied rules that 
+are similarly integral to jury verdicts. First, in Ivan V. v. 
+City of New York, 407 U. S. 203, 204 (1972) (per curiam), 
+we gave “complete retroactive effect” to the rule of In re 
+Winship, 397 U. S. 358 (1970), that a jury must fnd guilt 
+“beyond a reasonable doubt.” Like Ramos, Winship rested 
+on an “ancient” legal tradition incorporated into the Consti­
+tution. 397 U. S., at 361. As in Ramos, that tradition 
+served to “safeguard men” from “unjust convictions, with re­
+sulting forfeitures” of freedom. 397 U. S., at 362. And as 
+in Ramos, that protection plays a “vital” part in “the Amer­
+ican scheme of criminal procedure.” 397 U. S., at 363– 
+364. With all that established, the Ivan V. Court needed 
+just two pages to hold Winship retroactive, highlighting the 
+reasonable-doubt standard's “indispensable” role in “reduc­
+ing the risk” of wrongful convictions. 407 U. S., at 204–205. 
+Second, in Brown v. Louisiana, 447 U. S. 323 (1980), we ret­
+roactively applied the rule of Burch v. Louisiana, 441 U. S. 
+130 (1979), that a six-person guilty verdict must be unani­
+mous. Think about that for a moment: We held retroactive 
+a unanimity requirement, no different from the one here save 
+that it applied to a smaller jury. The reasoning should 
+by now sound familiar. Allowing conviction by a non-
+unanimous jury “impair[s]” the “purpose and functioning of 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+301 
+Kagan, J., dissenting 
+the jury,” undermining the Sixth Amendment's very “es­
+sence.” Brown, 447 U. S., at 331 (plurality opinion). It 
+“raises serious doubts about the fairness of [a] trial.” Id., at 
+335, n. 13. And it fails to “assure the reliability of [a guilty] 
+verdict.” Id., at 334. So when a jury has divided, as when it 
+has failed to apply the reasonable-doubt standard, “there has 
+been no jury verdict within the meaning of the Sixth Amend­
+ment.” Sullivan v. Louisiana, 508 U. S. 275, 280 (1993).4 
+And something still more supports retroactivity here, for 
+the opinions in Ramos (unlike in Winship or Burch) relied 
+on a strong claim about racial injustice. The Court detailed 
+the origins of Louisiana's and Oregon's non-unanimity rules, 
+locating them (respectively) in a convention to “establish the 
+supremacy of the white race” and “the rise of the Ku Klux 
+Klan.” 590 U. S., at ––– (internal quotation marks omitted). 
+Those rules, the Court explained, were meant “to dilute the 
+infuence [on juries] of racial, ethnic, and religious minori­
+ties”—and particularly, “to ensure that African-American 
+4 The majority argues that Ivan V. and Brown applied these new rules 
+only to cases on direct appeal. See ante, at 269–270, n. 5. But that isn't 
+right. Although Ivan V. itself involved a direct appeal, the Court has 
+made clear that the “complete retroactive effect” Ivan V. gave Winship 
+included cases in habeas. See, e. g., United States v. Johnson, 457 U. S. 
+537, 562–563, n. 21 (1982). And similarly, lower courts uniformly under­
+stood Brown to govern habeas cases, even though a concurring opinion 
+(which supplied the ruling's ffth and sixth votes) addressed only cases on 
+direct appeal. See, e. g., Atkins v. Listi, 625 F. 2d 525, 526 (CA5 1980); see 
+also Brown, 447 U. S., at 337 (opinion of Powell, J., joined by Stevens, J.). 
+Those applications to habeas cases make sense because the Court of that 
+time did not often distinguish in its retroactivity rulings between direct 
+and collateral review. See Stovall v. Denno, 388 U. S. 293, 300–301 (1967). 
+For that reason, the majority must fall back on the argument that “Brown 
+and Ivan V. were pre-Teague decisions” and “Teague tightened the previ­
+ous standard” for retroactivity. Ante, at 270, n. 5. That is true enough, 
+see supra, at 297, n. 2, but irrelevant here given Brown and Ivan V's 
+reasoning. As just noted, each of those decisions said everything a court 
+would say today in designating a new rule “watershed”—in essence, that 
+the rule is central to the process of fairly deciding on a defendant's guilt. 
+Page Proof Pending Publication
+
+302 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+juror service would be meaningless.” Ibid. (internal quota­
+tion marks omitted). Two concurring opinions linked that 
+history to current practice. “In light of the[ir] racist ori­
+gins,” Justice Kavanaugh stated, “it is no surprise that 
+non-unanimous juries can make a difference”—that “[t]hen 
+and now” they can “negate the votes of black jurors, espe­
+cially in cases with black defendants.” Id., at –––; see id., 
+at ––– (Sotomayor, J.). But that statement precludes to­
+day's result. If the old rule functioned “as an engine of dis­
+crimination against black defendants,” id., at ––– (Kava­
+naugh, J.), its replacement must “implicat[e]” (as watershed 
+rules do) “the fundamental fairness and accuracy of the crim­
+inal proceeding,” Beard, 542 U. S., at 417 (internal quotation 
+marks omitted). Or as Justice Kavanaugh put the point 
+more concretely, the unanimity rule then helps prevent 
+“racial prejudice” from resulting in wrongful convictions. 
+Ramos, 590 U. S., at –––. The rule should therefore apply 
+not just forward but back, to all convictions rendered absent 
+its protection. 
+II 
+The majority argues in reply that the jury unanimity rule 
+is not so fundamental because . . . . Well, no, scratch that. 
+Actually, the majority doesn't contest anything I've said 
+about the foundations and functions of the unanimity re­
+quirement. Nor could the majority reasonably do so. For 
+everything I've said about the unanimity rule comes straight 
+out of Ramos's majority and concurring opinions. Just 
+check the citations: I've added barely a word to what those 
+opinions (often with soaring rhetoric) proclaim. Start with 
+history. The ancient foundations of the unanimous jury 
+rule? Check. The inclusion of that rule in the Sixth 
+Amendment's original meaning? Check. Now go to func­
+tion. The fundamental (or bedrock or central) role of the 
+unanimous jury in the American system of criminal justice? 
+Check. The way unanimity fgures in ensuring fairness in 
+criminal trials and protecting against wrongful guilty ver­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+303 
+Kagan, J., dissenting 
+dicts? Check. The link between those purposes and safe­
+guarding the jury system from (past and present) racial 
+prejudice? Check. In sum: As to every feature of the una­
+nimity rule conceivably relevant to watershed status, Ramos 
+has already given the answer—check, check, check—and to­
+day's majority can say nothing to the contrary.5 
+Instead, the majority relies on decisions holding non-
+retroactive various other—even though dissimilar—proce­
+dural rules. In making that argument from past practice, 
+the majority adopts two discrete tactics. Call the frst 
+“throw everything against the wall.” Call the second “slice 
+and dice.” Neither can avail to render the jury unanimity 
+rule anything less than what Ramos thought it—as the ma­
+jority concedes, “momentous.” Ante, at 270. 
+As its frst move, the majority lists as many decisions hold­
+ing rules non-retroactive as it can muster. See ante, at 267– 
+269 (reviewing a “long line of cases”). The premise here is 
+that sheer volume matters: The majority presents the cata­
+log as if every rule is as important as every other and as if 
+comparing any to the unanimity requirement is beside the 
+point. But that idea founders on this Court's constant re­
+frain that watershed rules are only a small subset of proce­
+5 The majority does try to say that the plurality opinion in Ramos none­
+theless “plainly foreshadowed today's decision” by noting that Teague's 
+watershed test was “demanding by design,” in recognition of the States' 
+reliance interests. Ante, at 273 (internal quotation marks omitted); see 
+also ante, at 274–275 (repeating the assertion twice more). But the 
+Ramos plurality's description of the watershed test was nothing more than 
+objective fact: Yes, the watershed test was purposefully demanding. As 
+to whether the watershed test was so demanding as to exclude the jury 
+unanimity rule, here is what the plurality had to say: “Whether the right 
+to jury unanimity applies to cases on collateral review is a question for 
+a future case where the parties will have a chance to brief the issue and 
+we will beneft from their adversarial presentation.” Ramos, 590 U. S., 
+at –––. Not a lot of “plain[ ] foreshadow[ing]” there. Only a fair bit of 
+wisdom about how to resolve legal issues—which, as I'll later discuss, the 
+majority could usefully have considered before overruling the watershed 
+exception. See infra, at 306–307. 
+Page Proof Pending Publication
+
+304 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+dural rules. See, e. g., Graham v. Collins, 506 U. S. 461, 478 
+(1993). For under that view (as under the very meaning of 
+“watershed”), nothing could be less surprising than that non-
+watershed rules greatly outnumber watershed ones. That 
+inexorable fact cannot refute the designation of any given 
+rule—much less of jury unanimity—as watershed. And the 
+majority's kitchen-sink list becomes yet less probative of the 
+issue here because most of its bulk comes from decisions on 
+sentencing. See ante, at 267–268 (citing Beard, 542 U. S., at 
+408; O'Dell v. Netherland, 521 U. S. 151, 153 (1997); Lambrix 
+v. Singletary, 520 U. S. 518, 540 (1997); Sawyer v. Smith, 497 
+U. S. 227, 229 (1990); Schriro v. Summerlin, 542 U. S. 348, 
+352 (2004)). But Teague itself explains why sentencing pro­
+cedures are not watershed: A watershed rule, the Court said 
+there, must go to the jury's “determination of innocence or 
+guilt.” 489 U. S., at 313 (plurality opinion); see Beard, 542 
+U. S., at 417. So the majority's indiscriminate inventory of 
+non-retroactive rules cannot get it home. 
+Enter the majority's second stratagem, which tries to con­
+quer by dividing. Here, the majority picks out “three 
+aspects of Ramos” pointing toward watershed status, and 
+names one prior decision to match each of the three. Ante, 
+at 268. So in addressing the unanimity rule's “signifcance,” 
+the majority notes that the Court once held the jury-trial 
+right non-retroactive. Ante, at 269 (citing DeStefano v. 
+Woods, 392 U. S. 631, 633 (1968) (per curiam) and Duncan v. 
+Louisiana, 391 U. S. 145 (1968)). In tackling Ramos's re­
+turn to “original meaning,” the majority points to our deci­
+sion that an originalist rule about hearsay evidence should 
+not apply backward. Ante, at 270 (citing Whorton, 549 U. S., 
+at 421 and Crawford v. Washington, 541 U. S. 36 (2004)). 
+And in discussing Ramos's role in “prevent[ing] racial dis­
+crimination,” the majority invokes our denial of retroactivity 
+to a rule making it easier to prove race-based peremptory 
+strikes. Ante, at 270 (citing Allen v. Hardy, 478 U. S. 255, 
+261 (1986) (per curiam) and Batson v. Kentucky, 476 U. S. 
+79 (1986)). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+305 
+Kagan, J., dissenting 
+What the majority doesn't fnd—or even pretend to—is 
+any decision corresponding to Ramos on all of those dimen­
+sions. Take just a pair of examples. The Court has never 
+suggested that requiring a bench trial has race-based pur­
+poses or effects. See DeStefano, 392 U. S., at 633–635.6 
+Similarly, the Court thought its new rule on hearsay evi­
+dence of less than towering import: Calling the rule “limited 
+in scope,” we doubted that it would have any effect on the 
+“accuracy of factfnding.” Whorton, 549 U. S., at 419. I'll 
+resist making like points about other permutations because 
+the main point here is a general one. The majority must 
+slice and dice in this way—dividing Ramos into three for 
+purposes of comparison—because it cannot fnd any rule 
+analogous to jury unanimity on all relevant fronts. And that 
+is for a simple reason: No procedure adopted since Teague so 
+comprehensively fulflls that decision's criteria for retroactiv­
+ity. If any rule is watershed, it is jury unanimity. See 
+supra, at 299–300. 
+So the majority is left to overrule Teague's holding on wa­
+tershed rules.7 
+On the last page or so of its merits discus­
+6 Even on the metric of signifcance alone, the Court has not previously 
+ranked the jury-unanimity and jury-trial rights as today's majority does. 
+As earlier noted, the Court in Brown found a unanimity rule retroactive 
+despite its earlier holding that the jury-trial right was not. See supra, 
+at 300–301. The Court explained that the accuracy and fairness concerns 
+raised by divided juries—where, by defnition, at least one person retains 
+reasonable doubt—exceed those arising from judicial verdicts. See 
+Brown, 447 U. S., at 334–335, n. 13 (plurality opinion). In insisting 
+otherwise, the majority falls prey to a common greater-includes-the-lesser 
+fallacy—akin to the view that if a State can eliminate a jury, it can impose 
+jury rules of whatever kind it likes. See ante, at 269 (reasoning 
+that the treatment of a “broader” right controls that of a “subsidiary” 
+right); Brown, 447 U. S., at 334–335, n. 13 (rejecting precisely that 
+view). 
+7 In describing the majority as overruling Teague, I do not mean it over­
+rules only Teague. That decision doesn't stand alone in stating the water­
+shed exception as governing law. As I count, the Court has recited the 
+exception 17 more times before today. See Montgomery v. Louisiana, 
+577 U. S. 190, 198 (2016); Welch v. United States, 578 U. S. 120, 128 (2016); 
+Page Proof Pending Publication
+
+306 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+sion (before it turns to pre-butting this dissent), the majority 
+eliminates the watershed exception, declaring it “long past 
+time” to do so. Ante, at 272. Teague had said there would 
+not be “many” (retroactive) watershed rules. 489 U. S., at 
+313 (plurality opinion). The majority now says there will be 
+none at all. If that is so, of course, jury unanimity cannot 
+be watershed. Finally, the majority offers an intelligible 
+reason for declining to apply Ramos retroactively. 
+But in taking that road, the majority breaks a core judicial 
+rule: respect for precedent. Stare decisis is a foundation 
+stone of the rule of law, “promot[ing] the evenhanded, pre­
+dictable, and consistent development of legal principles, fos­
+ter[ing] reliance on judicial decisions, and contribut[ing] to 
+the actual and perceived integrity of the judicial process.” 
+Payne v. Tennessee, 501 U. S. 808, 827 (1991). Adherence to 
+precedent is, of course, “not an inexorable command.” Id., 
+at 828. Ramos itself teaches that much. But Ramos also 
+shows how high stare decisis sets the bar for overruling a 
+prior decision. To reverse course, we insist on compelling 
+reasons, thorough explanation, and careful attention to com­
+peting interests. But not here. The majority crawls under, 
+rather than leaps over, the stare decisis bar. 
+To begin with, no one here asked us to overrule Teague. 
+This Court usually confnes itself to the issues raised and 
+briefed by the parties. See, e. g., United States v. Sineneng-
+Chaidez v. United States, 568 U. S. 342, 347, n. 3 (2013); Danforth, 552 
+U. S., at 266, 274–275; Whorton v. Bockting, 549 U. S. 406, 416 (2007); 
+Beard v. Banks, 542 U. S. 406, 416–417 (2004); Horn v. Banks, 536 U. S. 
+266, 271, n. 5 (2002) (per curiam); Tyler v. Cain, 533 U. S. 656, 665 (2001); 
+Bousley v. United States, 523 U. S. 614, 619–620 (1998); O'Dell v. Nether-
+land, 521 U. S. 151, 156–157 (1997); Lambrix v. Singletary, 520 U. S. 518, 
+539 (1997); Gray v. Netherland, 518 U. S. 152, 170 (1996); Caspari v. Boh­
+len, 510 U. S. 383, 396 (1994); Graham v. Collins, 506 U. S., 461, 477– 
+478 (1993); Gilmore v. Taylor, 508 U. S. 333, 345 (1993); Saffe v. Parks, 
+494 U. S. 484, 494–495 (1990); Sawyer v. Smith, 497 U. S. 227, 241–242 
+(1990). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+307 
+Kagan, J., dissenting 
+Smith, 590 U. S. –––, ––– (2020) (discussing “the principle of 
+party presentation”). There may be reasons to ignore that 
+rule in one or another everyday case. But to do so in 
+pursuit of overturning precedent is nothing short of extraor­
+dinary. Cf. Ramos, 590 U. S., at –––, n. 4 (Kavanaugh, J.) 
+(An “important factor” protecting stare decisis “is that the 
+Court typically does not overrule a precedent unless a party 
+requests overruling”). We are supposed to (fairly) apply 
+the prevailing law until a party asks us to change it. And 
+when a party does make that request, we are supposed to 
+attend to countervailing arguments—which no one here had 
+a chance to make. That orderly process, skipped today, is 
+what enables a court to arrive at a considered decision about 
+whether to overthrow precedent. 
+Equally striking, the majority gives only the sketchiest 
+of reasons for reversing Teague's watershed exception. In 
+deciding whether to depart from precedent, the Court usu­
+ally considers—and usually at length—a familiar set of fac­
+tors capable of providing the needed special justifcation. 
+See, e. g., Knick v. Township of Scott, 588 U. S. –––, ––– 
+(2019) (listing such considerations). The majority can't be 
+bothered with that customary, and disciplining, practice; it 
+barely goes through the motions. Seldom has this Court so 
+casually, so off-handedly, tossed aside precedent. In its page 
+of analysis, the majority offers just one ground for its deci­
+sion—that since Teague, the Court has not identifed a new 
+rule as watershed, and so “the purported exception has be­
+come an empty promise.” Ante, at 272. But even viewed 
+in the abstract, that argument does not fy. That the Court 
+has not found a watershed rule since Teague does not mean 
+it could or would not in the future. Teague itself understood 
+that point: It saw value in the watershed exception even 
+while recognizing that watershed rules would be few and far 
+between. 489 U. S., at 313 (plurality opinion). And viewed 
+in the context of this case, the majority's argument positively 
+Page Proof Pending Publication
+
+308 
+EDWARDS v. VANNOY 
+Kagan, J., dissenting 
+craters. For the majority today comes face-to-face with a 
+rule that perfectly fts each of Teague's criteria: Jury unanim­
+ity, as described in Ramos, is watershed—even though no 
+prior rule was. See supra, at 297–302. That airtight match 
+between Ramos and Teague refutes the majority's one stated 
+reason for overruling the latter decision. The majority 
+could not rely on the absence of watershed rules to topple 
+Teague if it had just faithfully applied that decision to this 
+case. 
+In choosing otherwise, the majority imposes a steep price 
+for overruling Apodaca in Ramos. Taking with one hand 
+what it gave with the other, the Court curtails Ramos's ef­
+fects by expunging Teague's provision for watershed rules. 
+And so too the Court limits the consequences of any similarly 
+fundamental change in criminal procedure that may emerge 
+in the future. For the frst time in many decades (since long 
+before Teague, see supra, at 297, n. 2), those convicted under 
+rules found not to produce fair and reliable verdicts will be 
+left without recourse in federal courts.8 
+I would not discard Teague's watershed exception and so 
+keep those unfairly convicted people from getting new trials. 
+Instead, I would accept the consequences of last Term's hold­
+ing in Ramos. A decision like that comes with a promise, 
+or at any rate should. If the right to a unanimous jury is so 
+8 The majority's fnal claim is that it is properly immune from this 
+criticism—that I cannot “turn around and impugn” its ruling—because 
+“criminal defendants as a group are better off under Ramos and today's 
+decision, taken together, than they would have been if [my] dissenting 
+view had prevailed in Ramos.” Ante, at 275. The suggestion is surpris­
+ing. It treats judging as scorekeeping—and more, as scorekeeping about 
+how much our decisions, or the aggregate of them, beneft a particular 
+kind of party. I see the matter differently. Judges should take cases one 
+at a time, and do their best in each to apply the relevant legal rules. And 
+when judges err, others should point out where they went astray. No one 
+gets to bank capital for future cases; no one's past decisions insulate them 
+from criticism. The focus always is, or should be, getting the case before 
+us right. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 255 (2021) 
+309 
+Kagan, J., dissenting 
+fundamental—if a verdict rendered by a divided jury is “no 
+verdict at all”—then Thedrick Edwards should not spend his 
+life behind bars over two jurors' opposition. I respectfully 
+dissent. 
+Page Proof Pending Publication
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+PRELIMINARY PRINT 
+Volume 598 U. S. Part 1 
+Pages 175–217 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 14, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+175 
+OCTOBER TERM, 2022 
+Syllabus 
+AXON ENTERPRISE, INC. v. FEDERAL TRADE 
+COMMISSION et al. 
+certiorari to the united states court of appeals for 
+the ninth circuit 
+No. 21–86. Argued November 7, 2022—Decided April 14, 2023* 
+Michelle Cochran and Axon Enterprise, Inc.—respondents in separate en­
+forcement actions initiated in the Securities and Exchange Commission 
+(SEC) and the Federal Trade Commission (FTC)—each fled suit in fed­
+eral district court challenging the constitutionality of the agency pro­
+ceedings against them. When, as in the enforcement actions against 
+Cochran and Axon, a Commission elects to institute administrative pro­
+ceedings to address statutory violations, it typically delegates the initial 
+adjudication to an Administrative Law Judge (ALJ) with authority to 
+resolve motions, hold a hearing, and then issue a decision. As pre­
+scribed by statute, a party objecting to the Commission proceedings 
+makes its claims frst within the Commission itself, and then (if needed) 
+in a federal court of appeals. But the parties here sidestepped that 
+review scheme and brought their claims in district court, seeking to 
+enjoin the administrative proceedings. Cochran and Axon asserted 
+that the tenure protections of the agencies' ALJs render them insuff­
+ciently accountable to the President, in violation of separation-of-powers 
+principles. Axon also attacked as unconstitutional the combination of 
+prosecutorial and adjudicatory functions in the FTC. Each suit prem­
+ised jurisdiction on district courts' ordinary federal-question authority 
+to resolve “civil actions arising under the Constitution, laws, or treaties 
+of the United States.” 28 U. S. C. § 1331. 
+Cochran's and Axon's suits initially met the same fate: dismissal for 
+lack of jurisdiction. The district court in Cochran's case held that the 
+review scheme specifed in the Securities Exchange Act—“administra­
+tive review followed by judicial review in a federal court of appeals”— 
+“implicitly divest[s] district courts of jurisdiction” over “challenges to 
+SEC proceedings,” including Cochran's constitutional ones. Likewise, 
+the district court in Axon's case found that the FTC Act's comparable 
+review scheme displaces § 1331 jurisdiction for claims concerning the 
+*Together with No. 21–1239, Securities and Exchange Commission 
+et al. v. Cochran, on certiorari to the United States Court of Appeals for 
+the Fifth Circuit. 
+
+Page Proof Pending Publication
+176 
+AXON ENTERPRISE, INC. v. FTC 
+Syllabus 
+FTC's adjudications. On appeal, the Ninth Circuit affrmed the district 
+court's dismissal of Axon's constitutional challenges to the FTC proceed­
+ing, concluding that the claims were the type that fell within the FTC 
+Act's review scheme. But the en banc Fifth Circuit disagreed as to the 
+equivalent SEC question, fnding that Cochran's claim would not receive 
+“meaningful judicial review” in a court of appeals; that the claim was 
+“wholly collateral to the Exchange Act's statutory-review scheme”; and 
+that the claim fell “outside the SEC's expertise.” 
+Held: The statutory review schemes set out in the Securities Exchange 
+Act and Federal Trade Commission Act do not displace a district court's 
+federal-question jurisdiction over claims challenging as unconstitutional 
+the structure or existence of the SEC or FTC. Pp. 185–196. 
+(a) Although district courts may ordinarily hear challenges to federal 
+agency actions by way of § 1331's jurisdictional grant for claims “aris­
+ing under” federal law, Congress may substitute an alternative review 
+scheme. In both the Exchange Act and the FTC Act, Congress did so: 
+It provided for review of claims about agency action in a court of appeals 
+following the agency's own review process. The creation of such a re­
+view scheme divests district courts of their ordinary jurisdiction over 
+covered cases. But the statutory scheme does not necessarily extend 
+to every claim concerning agency action. See, e. g., Thunder Basin 
+Coal Co. v. Reich, 510 U. S. 200, 207–213. This Court has identifed 
+three considerations—commonly known as the Thunder Basin factors— 
+to determine whether particular claims concerning agency action are 
+“of the type Congress intended to be reviewed within th[e] statutory 
+structure.” Id., at 212. First, could precluding district court jurisdic­
+tion “foreclose all meaningful judicial review” of the claim? Id., at 
+212–213. Next, is the claim “wholly collateral” to the statute's review 
+provisions? Id., at 212. And last, is the claim “outside the agency's 
+expertise”? Ibid. 
+The Court has twice held specifc claims to ft within a statutory re­
+view scheme, based on the Thunder Basin factors. In Thunder Basin 
+itself, a coal company subject to the Mine Act fled suit in district court 
+instead of asserting its claims—as a statutory scheme prescribed—frst 
+before a mine safety commission and then (if needed) a court of appeals. 
+The crux of the dispute concerned the company's refusal to provide 
+employee-designated union offcials with access to the workplace in ac­
+cordance with the Mine Act. The company also objected on due process 
+grounds to the agency's imposition of a fne before holding a hearing. 
+See id., at 205. The Court held that the district court lacked jurisdic­
+tion over those claims, emphasizing the commission's “extensive experi­
+ence” in addressing the statutory issues raised, as well as its ability to 
+
+Cite as: 598 U. S. 175 (2023) 
+177 
+Syllabus 
+resolve them in light of its “expertise” over the mining industry. Id., 
+at 214–215. The Court acknowledged the company's constitutional 
+challenge was less tied to the agency's experience and expertise, but 
+concluded it could be “meaningfully addressed in the Court of Appeals.” 
+Id., at 215. 
+The Court applied similar reasoning in Elgin v. Department of Treas­
+ury, 567 U. S. 1, which involved a statutory review scheme that directed 
+federal employees challenging discharge decisions to seek review in the 
+Merit Systems Protection Board (MSPB) and then, if needed, in the 
+Federal Circuit. Elgin fled suit in district court when the government 
+fred him for failing to register for the draft. This Court held that the 
+district court lacked jurisdiction even though Elgin mainly claimed that 
+the draft's exclusion of women violated the Equal Protection Clause. 
+Although the MSPB might not be able to hold the draft law unconsti­
+tutional, the Court of Appeals could—and that was suffcient to ensure 
+“meaningful review” of Elgin's claim. Id., at 21. Further, Elgin's 
+challenge to his discharge was neither collateral to the MSPB's ordinary 
+proceedings nor unrelated to its expertise in the employment context. 
+In contrast, the Court in Free Enterprise Fund v. Public Company 
+Accounting Oversight Bd., 561 U. S. 477, applied the Thunder Basin 
+factors to determine that an accounting frm's Article II chal­
+lenge to the structure of the Public Company Accounting Oversight 
+Board—an agency regulating the accounting industry under the SEC's 
+oversight—landed outside the Exchange Act's review scheme. Because 
+not all Board action culminates in Commission action—which alone the 
+statute makes reviewable in a court of appeals—the Court determined 
+that the Exchange Act provided no “meaningful avenue of relief.” 561 
+U. S., at 490–491. And even if the SEC took up a matter arising from 
+the Board's investigation of the frm, the frm's constitutional challenge 
+to the Board's existence would be “collateral” to the subject of that 
+proceeding, as well as “outside the Commission's competence and exper­
+tise.” Ibid. Pp. 185–188. 
+(b) The Court must decide if the constitutional claims here are “of 
+the type” Congress thought belonged within a statutory review scheme. 
+Thunder Basin, 510 U. S., at 212. Like the accounting frm in Free 
+Enterprise Fund, Cochran and Axon assert sweeping constitutional 
+claims: They charge that the SEC and FTC are wielding authority un­
+constitutionally in all or broad swaths of their work. Applying the 
+Thunder Basin factors here, the Court comes out in the same place as 
+in Free Enterprise Fund. 
+First, preclusion of district court jurisdiction “could foreclose all 
+meaningful judicial review.” Thunder Basin, 510 U. S., at 212–213. 
+Adequate judicial review does not usually demand a district court's 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+178 
+AXON ENTERPRISE, INC. v. FTC 
+Syllabus 
+involvement. And the statutes at issue in this case provide for judicial 
+review of adverse SEC and FTC actions in a court of appeals. But 
+Cochran and Axon assert a “here-and-now injury” from being subjected 
+to an illegitimate proceeding, led by an illegitimate decisionmaker. 
+Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. 
+–––, –––. That injury is impossible to remedy once the proceeding is 
+over, which is when appellate review kicks in. Judicial review of the 
+structural constitutional claims would thus come too late to be meaning­
+ful. To be sure, “the expense and disruption” of “protracted adjudica­
+tory proceedings” on a claim do not alone justify immediate review. 
+FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 244. But the nature of 
+the injury here is different: As with a right “not to stand trial” that is 
+“effectively lost” if review is deferred until after trial, see Mitchell v. 
+Forsyth, 472 U. S. 511, 526, Axon and Cochran will lose their rights not 
+to undergo the complained-of agency proceedings if they cannot assert 
+those rights until the proceedings are over. 
+The collateralism factor also favors Axon and Cochran. The chal­
+lenges to the Commissions' authority have nothing to do with either the 
+enforcement-related matters the Commissions regularly adjudicate or 
+those they would adjudicate in assessing the charges against Axon and 
+Cochran. Elgin, 567 U. S., at 22. The parties' claims are thus “ `collat­
+eral' to any Commission orders or rules from which review might be 
+sought.” Free Enterprise Fund, 561 U. S., at 490. 
+Finally, Cochran's and Axon's claims are “outside the [Commissions'] 
+expertise.” Thunder Basin, 510 U. S., at 212. The Court in Free En­
+terprise Fund determined that claims that tenure protections violate 
+Article II raise “standard questions of administrative” and constitu­
+tional law, detached from “considerations of agency policy.” 561 U. S., 
+at 491 (internal quotation marks and alterations omitted). That state­
+ment covers Axon's and Cochran's claims that ALJs are too far insulated 
+from the President's removal authority. And Axon's constitutional 
+challenge to the combination of prosecutorial and adjudicative functions 
+in the FTC is similarly distant from the FTC's “competence and exper­
+tise.” Ibid. The Commission knows a good deal about competition 
+policy, but nothing special about the separation of powers. For that 
+reason, “agency adjudications are generally ill suited to address struc­
+tural constitutional challenges”—like those maintained here. Carr v. 
+Saul, 593 U. S. –––, –––. The Court concludes that the claims here are 
+not the type the statutory review schemes at issue reach. Pp. 188–196. 
+No. 21–86, 986 F. 3d 1173, reversed and remanded; No. 21–1239, 20 F. 4th 
+194, affrmed and remanded. 
+Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Thomas, Alito, Sotomayor, Kavanaugh, Barrett, and Jack­
+
+179 
+Cite as: 598 U. S. 175 (2023) 
+Syllabus 
+son, JJ., joined. Thomas, J., fled a concurring opinion, post, p. 196. Gor­
+such, J., fled an opinion concurring in the judgment, post, p. 204. 
+Paul D. Clement argued the cause for petitioner in No. 21– 
+86. With him on the briefs were Erin E. Murphy, Matthew 
+D. Rowen, and Pamela D. Petersen. 
+Deputy Solicitor General Stewart argued the cause for the 
+federal parties in both cases. With him on the brief were 
+Solicitor General Prelogar, Principal Deputy Assistant At­
+torney General Boynton, Vivek Suri, Mark B. Stern, Joshua 
+M. Salzman, Daniel Aguilar, Anisha S. Dasgupta, Joel 
+Marcus, Imad Dean Abyad, Dan M. Berkovitz, Michael A. 
+Conley, Dominick V. Freda, and Daniel Staroselsky. 
+Gregory G. Garre argued the cause for respondent in No. 
+21–1239. With him on the briefs were Charles S. Dameron, 
+Blake E. Stafford, Margaret A. Little, Markham S. Cheno­
+weth, Richard A. Samp, Kara M. Rollins, and Russell G. 
+Ryan.† 
+†Briefs of amici curiae urging reversal in No. 21–86 were fled for the 
+American Hospital Association by Mark R. Yohalem and Steffen N. John­
+son; for the Committee for Justice by J. Michael Connolly; for the Justice 
+Society by Holly A. Pierson; for the National Treasury Employees Union 
+by Julie M. Wilson, Paras N. Shah, and Allison C. Giles; and for the 
+Separation of Powers Clinic at Antonin Scalia Law School by Jennifer L. 
+Mascott and R. Trent McCotter. 
+Briefs of amici curiae urging reversal in No. 21–86 and affrmance in 
+No. 21–1239 were fled for the Americans for Prosperity Foundation by 
+Michael Pepson and Cynthia Fleming Crawford; for the Atlantic Legal 
+Foundation by Lawrence S. Ebner; for the Chamber of Commerce of the 
+United States of America by Sarah M. Harris; and for the Washington 
+Legal Foundation et al. by John M. Masslon II and Cory L. Andrews. 
+Briefs of amici curiae urging affrmance in No. 21–1239 were fled for 
+the Cato Institute by Clark M. Neily III; for Citizens United et al. by 
+Michael Boos, Daniel H. Jorjani, and Gary M. Lawkowski; for the Insti­
+tute for Justice by Jared McClain, Robert E. Johnson, and Paul V. Avelar; 
+for the Pacifc Legal Foundation by John F. Kerkhoff and Aditya Dynar; 
+for Phillip Goldstein et al. by Nicolas Morgan; and for Raymond J. Lucia, 
+Sr., et al. by Kellam M. Conover. 
+Briefs of amici curiae were fled in No. 21–86 for the American Anti­
+trust Institute by Randy M. Stutz; and for the Pacifc Legal Foundation 
+by John F. Kerkhoff and Oliver J. Dunford. 
+Page Proof Pending Publication
+
+180 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+Justice Kagan delivered the opinion of the Court. 
+In each of these two cases, the respondent in an adminis­
+trative enforcement action challenges the constitutional au­
+thority of the agency to proceed. Both respondents claim 
+that the agencies' administrative law judges (ALJs) are in­
+suffciently accountable to the President, in violation of sepa­
+ration-of-powers principles. And one respondent attacks as 
+well the combination of prosecutorial and adjudicatory func­
+tions in a single agency. The challenges are fundamental, 
+even existential. They maintain in essence that the agen­
+cies, as currently structured, are unconstitutional in much of 
+their work. 
+Our task today is not to resolve those challenges; rather, 
+it is to decide where they may be heard. The enforcement 
+actions at issue were initiated in the Securities and Ex­
+change Commission (SEC) and the Federal Trade Commis­
+sion (FTC). Most objections to those Commissions' pro­
+ceedings follow a well-trod path. As prescribed by statute, 
+a party makes its claims frst within the Commission itself, 
+and then (if needed) in a federal court of appeals. The par­
+ties here, however, sidestepped that review scheme. Seek­
+ing to stop the administrative proceedings, they instead 
+brought their claims in federal district court. The question 
+presented is whether the district courts have jurisdiction to 
+hear those suits—and so to resolve the parties' constitutional 
+challenges to the Commissions' structure. The answer is 
+yes. The ordinary statutory review scheme does not pre­
+clude a district court from entertaining these extraordinary 
+claims. 
+I 
+Congress established the SEC to protect investors in secu­
+rities markets, and created the FTC to promote fair competi­
+tion. The Commissions enforce, respectively, the Securities 
+Exchange Act and the FTC Act (among other laws). See 15 
+U. S. C. §78a et seq. (Exchange Act); 15 U. S. C. § 41 et seq. 
+(FTC Act). Those Acts authorize the Commissions to ad­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 175 (2023) 
+181 
+Opinion of the Court 
+dress statutory violations either by bringing civil suits in fed­
+eral district court or by instituting their own administrative 
+proceedings. See §§ 78u(d), 78u–1, 78u–2, 78u–3; §§ 45(b), (m). 
+When a Commission elects the latter option—as in these 
+two cases—it typically delegates the initial adjudication to 
+an ALJ. See § 78d–1(a); note following § 41. To foster inde­
+pendence, each Commission's ALJs are removable “only for 
+good cause” as determined by the Merit Systems Protection 
+Board (MSPB)—a separate agency whose members are 
+themselves removable by the President only for cause, such 
+as “neglect of duty” or “malfeasance.” 5 U. S. C. §§ 7521(a), 
+1202(d). An ALJ assigned to hear an SEC or FTC enforce­
+ment action has authority, much like a regular trial judge, to 
+resolve motions, hold a hearing, and then issue a decision. 
+See 16 CFR §§ 3.21–3.56 (2021); 17 CFR §§ 201.221–201.360 
+(2021). 
+A losing party may appeal the ALJ's ruling to the Com­
+mission; alternatively, the Commission may undertake re­
+view on its own initiative. See 16 CFR §§ 3.52–3.53; 17 CFR 
+§§ 201.410–201.411. Upon completion of internal review, the 
+Commission enters a fnal decision. See 16 CFR § 3.54; 17 
+CFR § 201.411(a). Or if no such review has occurred, the 
+ALJ's ruling itself becomes the decision of the Commission. 
+See 15 U. S. C. § 78d–1(c); 16 CFR § 3.51(a). 
+The Exchange Act and FTC Act both provide for review 
+of a fnal Commission decision in a court of appeals, rather 
+than a district court. Under the Exchange Act, “[a] person 
+aggrieved by [an SEC] fnal order . . . may obtain review of 
+the order” by fling a petition in a court of appeals. 15 
+U. S. C. § 78y(a)(1). That petition gives the appellate court 
+“jurisdiction” to “affrm or modify and enforce or to set aside 
+the order in whole or in part.” § 78y(a)(3). The FTC Act 
+similarly provides that the party subject to an FTC order 
+may “obtain a review of such order” in a court of appeals, 
+and grants the court “jurisdiction” to “affrm[ ], modify[ ], or 
+set[ ] aside the order.” § 45(c). 
+Page Proof Pending Publication
+
+182 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+The cases before us, though, did not take the above-
+described course. In each, the respondent in an administra­
+tive enforcement action sued in district court prior to an ALJ 
+decision, seeking to enjoin the Commission's proceeding. 
+Each suit charged that some fundamental aspect of the Com­
+mission's structure violates the Constitution; that the viola­
+tion made the entire proceeding unlawful; and that being 
+subjected to such an illegitimate proceeding causes legal in­
+jury (independent of any rulings the ALJ might make). 
+Finally, each suit premised jurisdiction on district courts' 
+ordinary federal-question authority—their power, under 
+28 U. S. C. § 1331, to resolve “civil actions arising under 
+the Constitution, laws, or treaties of the United States.” 
+We describe the two cases in turn, but what we have 
+just said they have in common is really all it is necessary 
+to know. 
+The frst case arises from an SEC enforcement action 
+brought against Michelle Cochran, a certifed public account­
+ant. In an earlier round of that proceeding, an ALJ found 
+that Cochran had failed to comply with auditing standards, in 
+violation of the Exchange Act. But soon after that decision 
+issued, this Court held that the SEC's ALJs had been im­
+properly appointed. See Lucia v. SEC, 585 U. S. –––, ––– 
+(2018). In compliance with that ruling, the SEC ordered a 
+fresh hearing, conducted by a now validly appointed ALJ. 
+That was the last straw for Cochran. Before the new ALJ 
+hearing began, she sued the Commission in federal district 
+court, asserting jurisdiction under § 1331. Cochran's com­
+plaint focused on the two layers of tenure protection all ALJs 
+hold: By statute, those offcials may be removed only “for 
+good cause as determined by the [MSPB], whose members 
+themselves can only be removed by the President for good 
+cause.” App. 60; see supra, at 181. That arrangement, 
+Cochran asserted, so greatly insulates ALJs from presiden­
+tial supervision as to violate the separation of powers—more 
+specifcally, Article II's vesting of executive power in the 
+Page Proof Pending Publication
+
+183 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+President. See App. 53–54, 60–62. And because that was 
+true (Cochran continued), ALJs could not constitutionally ex­
+ercise power: They could neither hold any hearings nor make 
+any decisions. Cochran thus sought declaratory and injunc­
+tive relief freeing her of the obligation “to submit to an un­
+constitutional proceeding.” Id., at 60; see id., at 64. 
+The second case arises from an FTC enforcement action 
+against Axon Enterprise, a company that makes and sells 
+policing equipment. In its complaint, the FTC alleged that 
+Axon's purchase of its closest competitor violated the FTC 
+Act's ban on unfair methods of competition. To stop the 
+FTC from pursuing that charge, Axon did just what Cochran 
+had—brought suit against the Commission in district court, 
+premised on federal-question jurisdiction. Like Cochran, 
+Axon asserted that the Commission's ALJs could not consti­
+tutionally exercise governmental authority because of their 
+dual-layer protection from removal. In addition, Axon 
+claimed that the combination of prosecutorial and adjudica­
+tive functions in the Commission renders all of its enforce­
+ment actions unconstitutional. See Complaint in No. 2:20– 
+cv–00014 (D Ariz.), ECF Doc. 1, p. 26 (protesting that “the 
+FTC will act as prosecutor, judge, and jury”). Again simi­
+larly to Cochran, Axon asked the court to enjoin the FTC 
+“from subjecting” it to the Commission's “unfair and uncon­
+stitutional internal forum.” Id., at 7; see id., at 28.1 
+1 In this Court, Axon contends that it separately objected to “the uncodi­
+fed, black-box `clearance' process” used to determine whether the FTC or 
+the Department of Justice will investigate a merger. Brief for Axon 13. 
+We do not read the complaint that way. In count I, Axon raised the 
+combination-of-functions claim; in count II, it raised the removal claim; 
+and in count III, it asserted the view (not at issue here) that it did not 
+violate the antitrust laws. See Complaint in No. 2:20–cv–00014 (D Ariz.), 
+pp. 26–28. The single paragraph criticizing the clearance process appears 
+only as background to Axon's dual constitutional claims. Accord, 986 
+F. 3d 1173, 1181, n. 3 (CA9 2021) (case below) (noting that the three claims 
+Axon pushed on appeal “do not line up with” Axon's complaint). We 
+therefore do not address the clearance-process issue. 
+Page Proof Pending Publication
+
+184 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+Cochran's and Axon's suits met an identical fate in district 
+court: dismissal for lack of jurisdiction. The district court 
+in Cochran's case held that the review scheme specifed in the 
+Exchange Act—“administrative review followed by judicial 
+review in a federal court of appeals”—“implicitly divest[s] 
+district courts of jurisdiction” over “challenges to SEC pro­
+ceedings,” including Cochran's constitutional ones. App. to 
+Pet. for Cert. in No. 21–1239, p. 141a. Likewise, the district 
+court in Axon's case found that the FTC Act's comparable 
+review scheme displaces § 1331 jurisdiction for claims con­
+cerning the FTC's adjudications. So Axon had to raise its 
+structural constitutional claims “during the administrative 
+process and then renew them” if and when “seeking review 
+in the Court of Appeals.” App. to Pet. for Cert. in No. 21– 
+86, pp. 50–51. 
+On appeal from those decisions, the United States Courts 
+of Appeals for the Fifth and Ninth Circuits split. The Ninth 
+Circuit, considering Axon's case, reached the same conclusion 
+as the district courts. See 986 F. 3d 1173 (2021). Review­
+ing this Court's precedents, the Ninth Circuit acknowledged 
+that a statutory review scheme precluding district court ju­
+risdiction—like the FTC Act's—might not extend to every 
+“type of claim[ ].” Id., at 1187 (citing Thunder Basin Coal 
+Co. v. Reich, 510 U. S. 200, 212 (1994)). But the court de­
+cided that Axon's constitutional challenges fell within the 
+FTC Act's scheme, mainly because the scheme guaranteed 
+them “meaningful judicial review.” 986 F. 3d, at 1181, 1187. 
+The en banc Fifth Circuit disagreed as to the equivalent SEC 
+question. See 20 F. 4th 194 (2021). The court maintained 
+that “Cochran's removal power claim is not the type of claim 
+Congress intended to funnel through the Exchange Act's 
+statutory-review scheme.” 
+Id., at 206–207 (also citing 
+Thunder Basin, 510 U. S., at 212). Drawing on considera­
+tions identifed in this Court's opinions, the Fifth Circuit rea­
+soned that Cochran's claim would not receive “meaningful 
+judicial review” in a court of appeals; that the claim was 
+“wholly collateral to the Exchange Act's statutory-review 
+Page Proof Pending Publication
+
+185 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+scheme”; and that the claim fell “outside the SEC's exper­
+tise.” 20 F. 4th, at 207–208. 
+We granted certiorari in both cases to resolve the division. 
+595 U. S. ––– (2022); 596 U. S. ––– (2022). We now conclude 
+that the review schemes set out in the Exchange Act and the 
+FTC Act do not displace district court jurisdiction over 
+Axon's and Cochran's far-reaching constitutional claims. 
+II 
+A 
+A special statutory review scheme, this Court has recog­
+nized, may preclude district courts from exercising jurisdic­
+tion over challenges to federal agency action. See, e. g., 
+Thunder Basin, 510 U. S., at 207. District courts may ordi­
+narily hear those challenges by way of 28 U. S. C. § 1331's 
+grant of jurisdiction for claims “arising under” federal law. 
+Congress, though, may substitute for that district court au­
+thority an alternative scheme of review. Congress of course 
+may do so explicitly, providing in so many words that district 
+court jurisdiction will yield. But Congress also may do 
+so implicitly, by specifying a different method to resolve 
+claims about agency action. The method Congress typically 
+chooses is the one used in both the Exchange Act and the 
+FTC Act: review in a court of appeals following the agency's 
+own review process. We have several times held that the 
+creation of such a review scheme for agency action divests 
+district courts of their ordinary jurisdiction over the covered 
+cases. See Thunder Basin, 510 U. S., at 207–212; Elgin v. 
+Department of Treasury, 567 U. S. 1, 10–15 (2012); see also 
+Free Enterprise Fund v. Public Company Accounting Over­
+sight Bd., 561 U. S. 477, 489 (2010) (noting that statutory 
+schemes for agency review “[g]enerally” are “exclusive”). 
+The agency effectively flls in for the district court, with the 
+court of appeals providing judicial review. 
+But a statutory review scheme of that kind does not neces­
+sarily extend to every claim concerning agency action. Our 
+decision in Thunder Basin made that point clear. After 
+Page Proof Pending Publication
+
+186 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+fnding that Congress's creation of a “comprehensive review 
+process” like the ones here ousted district courts of jurisdic­
+tion, the Court asked another question: whether the particu­
+lar claims brought were “of the type Congress intended 
+to be reviewed within this statutory structure.” 510 U. S., 
+at 208, 212. The Court identifed three considerations de­
+signed to aid in that inquiry, commonly known now as the 
+Thunder Basin factors. First, could precluding district 
+court jurisdiction “foreclose all meaningful judicial review” 
+of the claim? Id., at 212–213. Next, is the claim “wholly 
+collateral to [the] statute's review provisions”? Id., at 212 
+(internal quotation marks omitted). And last, is the claim 
+“outside the agency's expertise”? Ibid. When the answer 
+to all three questions is yes, “we presume that Congress does 
+not intend to limit jurisdiction.” Free Enterprise Fund, 561 
+U. S., at 489. But the same conclusion might follow if the 
+factors point in different directions. The ultimate question 
+is how best to understand what Congress has done—whether 
+the statutory review scheme, though exclusive where it 
+applies, reaches the claim in question. The frst Thunder 
+Basin factor recognizes that Congress rarely allows claims 
+about agency action to escape effective judicial review. See, 
+e. g., Bowen v. Michigan Academy of Family Physicians, 
+476 U. S. 667, 670 (1986). The second and third refect in 
+related ways the point of special review provisions—to give 
+the agency a heightened role in the matters it customarily 
+handles, and can apply distinctive knowledge to. 
+This Court has twice held specifc claims to ft within a 
+statutory review scheme, based on the Thunder Basin fac­
+tors. In Thunder Basin itself, a coal company subject to the 
+Mine Act fled suit in district court instead of asserting its 
+claims—as a statutory scheme prescribed—before a mine 
+safety commission and then (if needed) a court of appeals. 
+The crux of the dispute concerned the company's refusal to 
+provide employee-designated union offcials with access to 
+the workplace, as the Mine Act apparently required. The 
+Page Proof Pending Publication
+
+187 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+company claimed a right to exclude the offcials under an­
+other statute; it also objected on due process grounds to the 
+agency's imposing a fne before holding a hearing. See 510 
+U. S., at 205; see also Elgin, 567 U. S., at 17, n. 6. We held 
+the district court to lack jurisdiction over those claims, and 
+thus directed the company back to the statutory review 
+scheme. The Commission, we emphasized, had “extensive 
+experience” in addressing the statutory issues raised, and 
+could resolve them in ways that “brought to bear” its “exper­
+tise” over the mining industry. 510 U. S., at 214–215; see 
+Free Enterprise Fund, 561 U. S., at 491. All that was less 
+so, we acknowledged, of the company's constitutional chal­
+lenge; but that claim could be “meaningfully addressed in the 
+Court of Appeals.” 510 U. S., at 215. 
+We applied similar reasoning in Elgin. The statutory re­
+view scheme there directed federal employees challenging 
+discharge decisions to seek review in the MSPB and then, if 
+needed, in the Federal Circuit (a specifc court of appeals). 
+But Elgin fled suit in district court when he was fred by 
+the government for failing to register for the draft. We 
+held that the court lacked jurisdiction even though Elgin 
+mainly claimed that the draft law, in excluding women, vio­
+lated the Equal Protection Clause. Although the MSPB 
+might not be able to hold the draft law unconstitutional, we 
+stated, the Court of Appeals could—and that was suffcient 
+to ensure “meaningful review” of Elgin's claim. 567 U. S., 
+at 21. Still more, Elgin's claim was neither collateral to the 
+MSPB's ordinary proceedings nor unrelated to its expertise. 
+We reasoned that a “challenge to [a discharge] is precisely 
+the type of personnel action regularly adjudicated by the 
+MSPB.” Id., at 22. And we observed that such an act­
+ion could involve “threshold” and other “questions unique 
+to the employment context” that “fall[ ] squarely within the 
+MSPB's expertise.” Id., at 22–23. 
+But in Free Enterprise Fund, this Court went the oppo­
+site way, holding that certain claims landed outside a statu­
+Page Proof Pending Publication
+
+188 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+tory review scheme. The scheme was the Exchange Act's— 
+the same as in Cochran's case. And the main claim in Free 
+Enterprise Fund bears more than a passing resemblance to 
+one Axon and Cochran raise: It, too, alleged that offcials 
+with two layers of tenure protection were unconstitutionally 
+insulated from presidential control. The offcials challenged, 
+though, were different. They were members of the Public 
+Company Accounting Oversight Board—an agency regulat­
+ing the accounting industry under the SEC's oversight. 
+When the Board opened an investigation of an accounting 
+frm's auditing practices, the frm took its Article II claim to 
+district court. This time we held that the court had juris­
+diction of the action, based on the Thunder Basin factors. 
+We found that the Exchange Act provided no “meaningful 
+avenue of relief” for the frm, given the separation between 
+the Board and the Commission. 561 U. S., at 490–491 (inter­
+nal quotation marks omitted). Not every Board action, we 
+explained, culminates in Commission action—which alone 
+the statute makes reviewable in a court of appeals. And 
+even supposing the SEC took up a matter arising from the 
+Board's investigation, the frm's constitutional challenge 
+would be “collateral” to the subject of that proceeding. The 
+frm, we observed, “object[s] to the Board's existence, not to 
+any of its auditing standards.” Id., at 490. Finally, we 
+held, the frm's claim was “outside the Commission's compe­
+tence and expertise.” Id., at 491. It raised only a “stand­
+ard” issue of administrative and constitutional law, relating 
+not at all to “considerations of agency policy.” Ibid. (inter­
+nal quotation marks and alterations omitted). 
+B 
+One way of framing the question we must decide is 
+whether the cases before us are more like Thunder Basin 
+and Elgin or more like Free Enterprise Fund. The answer 
+appears from 30,000 feet not very hard. Recall our task: to 
+decide if a claim is “of the type” Congress thought belonged 
+Page Proof Pending Publication
+
+189 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+within a statutory scheme. Thunder Basin, 510 U. S., at 
+212. The claims here are of the same ilk as the one in Free 
+Enterprise Fund. There, the complaint alleged that the 
+Board's “freedom from Presidential oversight” rendered un­
+constitutional “all power and authority [the Board] exer­
+cised.” 561 U. S., at 508 (internal quotation marks omitted). 
+Only the Court's ability to sever the relevant statute's for-
+cause removal provision enabled the Board to keep running. 
+See ibid. The Article II challenges in Axon's and Cochran's 
+cases would likewise prevent ALJs—through whom the 
+Commissions do much of their work—from exercising any 
+power, unless they lose their double-for-cause tenure protec­
+tion. And Axon's combination-of-functions claim similarly 
+goes to the core of the FTC's existence, given that the 
+agency indeed houses (and by design) both prosecutorial 
+and adjudicative activities. The challenges here, as in Free 
+Enterprise Fund, are not to any specifc substantive deci­
+sion—say, to fning a company (Thunder Basin) or fring an 
+employee (Elgin). Nor are they to the commonplace proce­
+dures agencies use to make such a decision. They are in­
+stead challenges, again as in Free Enterprise Fund, to the 
+structure or very existence of an agency: They charge that 
+an agency is wielding authority unconstitutionally in all or a 
+broad swath of its work. Given that equivalence, it would 
+be surprising to treat the claims here differently from the 
+one in Free Enterprise Fund—which we held belonged in 
+district court. 
+And when we apply the Thunder Basin factors, we indeed 
+come out in the same place as Free Enterprise Fund. Our 
+reasoning differs in some particulars, refecting variations 
+between that case and the two here. But the 30,000-foot 
+view of the issue before us ends up a good proxy for the 
+more granular one. Each of the three Thunder Basin fac­
+tors signals that a district court has jurisdiction to adjudi­
+cate Axon's and Cochran's (like the accounting frm's) sweep­
+ing constitutional claims. 
+Page Proof Pending Publication
+
+190 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+We begin with the factor whose application here is least 
+straightforward: whether preclusion of district court juris­
+diction “could foreclose all meaningful judicial review.” 
+Thunder Basin, 510 U. S., at 212–213. Thunder Basin and 
+Elgin both make clear that adequate judicial review does not 
+usually demand a district court's involvement. Review of 
+agency action in a court of appeals can alone “meaningfully 
+address[ ]” a party's claims. Thunder Basin, 510 U. S., at 
+215; see Elgin, 567 U. S., at 21 (holding that Congress pro­
+vided “meaningful review” in authorizing the Federal Circuit 
+“to consider and decide petitioners' constitutional claims”).2 
+Still more, we agree with the Government that the reason 
+Free Enterprise Fund gave for departing from Thunder 
+Basin and Elgin on the judicial review issue does not apply 
+to the cases before us. See Brief for Federal Parties 39–40. 
+As just described, Free Enterprise Fund's analysis on that 
+score relied on the separation between the Board and the 
+SEC. See supra, at 188. The accounting frm, recall, was 
+enmeshed in a Board investigation. But some Board actions 
+never go to the SEC—and the statutory scheme, we ex­
+plained, “provides only for judicial review of Commission ac­
+tion.” 561 U. S., at 490 (emphasis in original). That meant 
+the accounting frm, absent district court jurisdiction, might 
+never have had judicial recourse. But no such worry exists 
+here. Cochran and Axon are parties in ongoing SEC and 
+FTC proceedings, and the statutes at issue provide for judi­
+cial review of SEC and FTC action. See 15 U. S. C. §§ 45(c), 
+78y(a). Under those statutes, Axon and Cochran can (even­
+2 That is so, as both decisions held, even if the agency itself could not 
+have considered or remedied the party's claim—for example, when the 
+agency lacks the power to “declare a statute unconstitutional.” Elgin, 
+567 U. S., at 17; see Thunder Basin, 510 U. S., at 215. It is also so, as 
+Thunder Basin illustrates, regardless of whether the claim involves a mat­
+ter of substance (e. g., the coal company's alleged right to exclude union 
+offcials) or one of procedure (e. g., the company's asserted entitlement to 
+an earlier hearing). See id., at 214–215; supra, at 186–187. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+191 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+tually) obtain review of their constitutional claims through 
+an appeal from an adverse agency action to a court of ap­
+peals. So Free Enterprise Fund's analysis of the judicial 
+review factor does not control. 
+Yet a problem remains, stemming from the interaction be­
+tween the alleged injury and the timing of review. To see 
+the diffculty, think frst about Thunder Basin and Elgin. If 
+an appellate court had ruled in favor of the coal company 
+or the federal employee on review of an agency decision, 
+the court could have remedied the party's injury. It could 
+have revoked the fne assessed on the company or reinstated 
+the employee with backpay. But not so here. The harm 
+Axon and Cochran allege is “being subjected” to “unconstitu­
+tional agency authority”—a “proceeding by an unaccountable 
+ALJ.” Brief for Axon 36; see Brief for Cochran 37 (contend­
+ing she suffers harm from “having to appear in proceedings” 
+before an unconstitutionally insulated ALJ). That harm 
+may sound a bit abstract; but this Court has made clear that 
+it is “a here-and-now injury.” Seila Law LLC v. Consumer 
+Financial Protection Bureau, 591 U. S. –––, ––– (2020) (in­
+ternal quotation marks omitted). And—here is the rub—it 
+is impossible to remedy once the proceeding is over, which is 
+when appellate review kicks in. Suppose a court of appeals 
+agrees with Axon, on review of an adverse FTC decision, 
+that ALJ-led proceedings violate the separation of powers. 
+The court could of course vacate the FTC's order. But 
+Axon's separation-of-powers claim is not about that order; 
+indeed, Axon would have the same claim had it won before 
+the agency. The claim, again, is about subjection to an ille­
+gitimate proceeding, led by an illegitimate decisionmaker. 
+And as to that grievance, the court of appeals can do nothing: 
+A proceeding that has already happened cannot be undone. 
+Judicial review of Axon's (and Cochran's) structural constitu­
+tional claims would come too late to be meaningful. 
+The limits of that conclusion are important to emphasize. 
+The Government, in disputing our position, notes that many 
+
+192 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+review schemes—involving not only agency action but also 
+civil and criminal litigation—require parties to wait before 
+appealing, even when doing so subjects them to “signifcant 
+burdens.” Brief for Federal Parties 47–49. That is true, 
+and will remain so: Nothing we say today portends newfound 
+enthusiasm for interlocutory review. Return, for example, 
+to Thunder Basin and Elgin. There, the coal company and 
+federal employee could both have argued that the statutory 
+review process would subject them to greater litigation costs 
+than their preferred suit in district court. But that would 
+not have mattered. We have made clear, just as the Govern­
+ment says, that “the expense and disruption” of “protracted 
+adjudicatory proceedings” on a claim do not justify immedi­
+ate review. FTC v. Standard Oil Co. of Cal., 449 U. S. 232, 
+244 (1980); see, e. g., Myers v. Bethlehem Shipbuilding Corp., 
+303 U. S. 41, 51 (1938). What makes the difference here is 
+the nature of the claims and accompanying harms that the 
+parties are asserting. Again, Axon and Cochran protest the 
+“here-and-now” injury of subjection to an unconstitutionally 
+structured decisionmaking process. See supra, at 191. 
+And more, subjection to that process irrespective of its out­
+come, or of other decisions made within it. A nearer anal­
+ogy than any the Government offers is to our established 
+immunity doctrines. There, we have identifed certain 
+rights “not to stand trial” or face other legal processes. 
+Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). And we have 
+recognized that those rights are “effectively lost” if review 
+is deferred until after trial. Ibid. So too here, Axon and 
+Cochran will lose their rights not to undergo the complained-
+of agency proceedings if they cannot assert those rights until 
+the proceedings are over. 
+The collateralism factor favors Axon and Cochran for 
+much the same reason—because they are challenging the 
+Commissions' power to proceed at all, rather than actions 
+taken in the agency proceedings. That distinction, as noted 
+earlier, guided Free Enterprise Fund's view that the ac­
+Page Proof Pending Publication
+
+193 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+counting frm's challenge qualifed as “collateral.” See 561 
+U. S., at 490; supra, at 188. The frm, the court reasoned, 
+“object[ed] to the Board's existence, not to any of [the] audit­
+ing standards” it might apply in regulating accountants. 
+561 U. S., at 490. Likewise here, both parties object to 
+the Commissions' power generally, not to anything partic­
+ular about how that power was wielded. The parties' 
+separation-of-powers claims do not relate to the subject of 
+the enforcement actions—in the one case auditing practices, 
+in the other a business merger. Cf. Mohawk Industries, 
+Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (considering as 
+part of the “collateral order doctrine,” which governs ap­
+peals in non-agency litigation, whether a question is “sepa­
+rate from the merits”). Nor do the parties' claims address 
+the sorts of procedural or evidentiary matters an agency 
+often resolves on its way to a merits decision. Cf. Florida 
+Power & Light Co. v. Lorion, 470 U. S. 729, 743 (1985) (favor­
+ing review of such preliminary matters along with the 
+agency's fnal order). The claims, in sum, have nothing to 
+do with the enforcement-related matters the Commissions 
+“regularly adjudicate[ ]”—and nothing to do with those they 
+would adjudicate in assessing the charges against Axon and 
+Cochran. Elgin, 567 U. S., at 22. Because that is so, the 
+parties' claims are “ `collateral' to any Commission orders or 
+rules from which review might be sought.” Free Enter­
+prise Fund, 561 U. S., at 490. 
+The Government's contrary argument would strip the col­
+lateralism factor of its appropriate function. In the Govern­
+ment's view, no claim “directed at” a pending Commission 
+proceeding can qualify as collateral to it, even if wholly dis­
+connected in subject. Tr. of Oral Arg. in No. 21–86, p. 75; 
+see Brief for Federal Parties 39, 52–53. The Government 
+thinks that position consistent with Free Enterprise Fund 
+because there an SEC proceeding had not yet begun. See 
+Brief for Federal Parties 38–39 (noting that the accounting 
+frm remained enmeshed in a Board investigation). But the 
+Page Proof Pending Publication
+
+194 
+AXON ENTERPRISE, INC. v. FTC 
+Opinion of the Court 
+Government's argument still conficts with Free Enterprise 
+Fund's reasoning. In addressing why the frm's claim was 
+collateral, the Court focused solely on what it was about— 
+again, that the frm challenged “the Board's existence,” not 
+“its auditing standards.” 561 U. S., at 490. And anyway, 
+the Government's theory ill fts the point of the Thunder 
+Basin inquiry—to decide when a particular claim is “of the 
+type” to fall outside a statutory review scheme. 510 U. S., 
+at 212. That inquiry, just as Free Enterprise Fund recog­
+nized, requires considering the nature of the claim, not the 
+status (pending or not) of an agency proceeding. Or said 
+another way, the inquiry contemplates (as our collateral-
+order doctrine also does) that even when a proceeding is 
+pending, an occasional claim may get immediate review—in 
+part because it involves something discrete. Cf. Cohen v. 
+Benefcial Industrial Loan Corp., 337 U. S. 541, 546 (1949) 
+(allowing an interlocutory appeal from a district court's “col­
+lateral” ruling, “independent of the cause itself”). The Gov­
+ernment's redefnition of what counts as collateral would 
+effectively foreclose that possibility. 
+Third and fnally, Cochran's and Axon's claims are “outside 
+the [Commissions'] expertise.” Thunder Basin, 510 U. S., at 
+212. On that issue, Free Enterprise Fund could hardly be 
+clearer. Claims that tenure protections violate Article II, 
+the Court there determined, raise “standard questions of ad­
+ministrative” and constitutional law, detached from “consid­
+erations of agency policy.” 561 U. S., at 491 (internal quota­
+tion marks and alterations omitted); see supra, at 188. That 
+statement covers Axon's and Cochran's claims that ALJs are 
+too far insulated from the President's supervision. And 
+Axon's constitutional challenge to the combination of pros­
+ecutorial and adjudicative functions is of a piece—similarly 
+distant from the FTC's “competence and expertise.” 561 
+U. S., at 491. The Commission knows a good deal about 
+competition policy, but nothing special about the separation 
+of powers. For that reason, we observed two Terms ago, 
+Page Proof Pending Publication
+
+195 
+Cite as: 598 U. S. 175 (2023) 
+Opinion of the Court 
+“agency adjudications are generally ill suited to address 
+structural constitutional challenges”—like those maintained 
+here. Carr v. Saul, 593 U. S. –––, ––– (2021). 
+On this last factor, even the Government mostly gives up 
+the ghost. Its argument goes: “Even when an agency lacks 
+expertise in interpreting the Constitution, it can still `apply 
+its expertise' by deciding other issues”—whether “statutory, 
+regulatory, or factual”—“that `may obviate the need to ad­
+dress the constitutional challenge.' ” Brief for Federal Par­
+ties 54 (quoting Elgin, 567 U. S., at 22–23). The frst clause 
+of that sentence concedes the expertise point—and the rest 
+cannot reclaim it. True enough, we partly relied in Elgin 
+on the MSPB's expertise on a raft of ordinary employment 
+issues surrounding the employee's contention that the Equal 
+Protection Clause barred his discharge. See 567 U. S., at 
+22–23; supra, at 187. But the Government here does not 
+pretend that Axon's and Cochran's constitutional claims are 
+similarly intertwined with or embedded in matters on which 
+the Commissions are expert. (It is precisely because those 
+claims are not so entangled that the Government must try 
+to redefne what it means for claims to be “collateral” to an 
+agency action. See supra, at 193–194.) And unlike in 
+Elgin, ruling for Axon and Cochran on expertise-laden 
+grounds would not “obviate the need” to address their consti­
+tutional claims—which, again, allege injury not from this or 
+that ruling but from subjection to all agency authority. 
+Those claims of here-and-now harm would remain no matter 
+how much expertise could be “brought to bear” on the other 
+issues these cases involve. Thunder Basin, 510 U. S., at 215. 
+All three Thunder Basin factors thus point in the same 
+direction—toward allowing district court review of Axon's 
+and Cochran's claims that the structure, or even existence, of 
+an agency violates the Constitution. For the reasons given 
+above, those claims cannot receive meaningful judicial re­
+view through the FTC Act or Exchange Act. They are col­
+lateral to any decisions the Commissions could make in in­
+Page Proof Pending Publication
+
+196 
+AXON ENTERPRISE, INC. v. FTC 
+Thomas, J., concurring 
+dividual enforcement proceedings. And they fall outside 
+the Commissions' sphere of expertise. Our conclusion fol­
+lows: The claims are not “of the type” the statutory review 
+schemes reach. Id., at 212. A district court can therefore 
+review them. 
+* 
+* 
+* 
+We accordingly reverse the judgment of the Court of Ap­
+peals for the Ninth Circuit, affrm the judgment of the Court 
+of Appeals for the Fifth Circuit, and remand the two cases 
+for further proceedings consistent with this opinion. 
+It is so ordered. 
+Justice Thomas, concurring. 
+I join the Court's opinion in full because it correctly ap­
+plies precedent to determine that Axon Enterprise's and 
+Michelle Cochran's structural constitutional claims need not 
+be channeled through the administrative review schemes at 
+issue. I write separately, however, because I have grave 
+doubts about the constitutional propriety of Congress vest­
+ing administrative agencies with primary authority to ad­
+judicate core private rights with only deferential judicial 
+review on the back end. 
+I 
+A 
+The Court correctly notes that precedent allows Congress 
+to replace Article III district courts with “an alternative 
+scheme of review,” as it did in the provisions of the Securities 
+Exchange Act and the Federal Trade Commission Act at 
+issue here. Ante, at 185; see 15 U. S. C. §§ 45(c) and 78y(a). 
+Under such schemes, administrative agencies may impose or­
+ders and penalties on private parties; adjudicate them before 
+agency administrative law judges (ALJs); and only then be 
+subjected to deferential review by an Article III court. As 
+the Court puts it, “[t]he agency effectively flls in for the 
+Page Proof Pending Publication
+
+197 
+Cite as: 598 U. S. 175 (2023) 
+Thomas, J., concurring 
+district court, with the court of appeals providing judicial 
+review.” Ante, at 185. That Article III review is sharply 
+limited. For example, under the administrative review 
+schemes at issue here, the reviewing court must treat agency 
+fndings of fact as “conclusive” so long as they are “supported 
+by substantial evidence,” § 78y(a)(4); see § 45(c) (“if sup­
+ported by evidence”), a highly deferential standard of re­
+view.1 
+The reviewing court also cannot take its own evi­
+dence—it can only remand the case to the agency for further 
+proceedings. See §§ 45(c) and 78y(a)(5). 
+This mixed system—primary adjudication by an executive 
+agency subject to only limited Article III review—is unlike 
+the system that prevailed for the frst century of our Nation's 
+existence. During that period, judicial review was “all-or­
+nothing”; “either a court had authority to review administra­
+tive action or not, and if it did, it decided the whole case.” 
+T. Merrill, Article III, Agency Adjudication, and the Origins 
+of the Appellate Review Model of Administrative Law, 111 
+Colum. L. Rev. 939, 944, 952 (2011) (Merrill). This all-or­
+nothing model rested on a conceptual distinction between 
+core private rights, on the one hand, and mere public rights 
+and governmental privileges, on the other. “Disposition of 
+private rights to life, liberty, and property” was understood 
+to “fal[l] within the core of the judicial power, whereas dispo­
+sition of public rights [was] not.” Wellness Int'l Network, 
+Ltd. v. Sharif, 575 U. S. 665, 711 (2015) (Thomas, J., dis­
+senting). Thus, “[t]he measure of judicial involvement was 
+private right. In particular, the extent to which the judi­
+1 Deferential review of the SEC's and FTC's decisions is particularly 
+concerning given their tendency to overwhelmingly agree with their re­
+spective agency's decisions. See 986 F. 3d 1173, 1187 (CA9 2021) (“FTC 
+has not lost a single case [in administrative proceedings] in the past quarter-
+century. Even the 1972 Miami Dolphins would envy that type of record”); 
+Brief for Respondent in No. 21–1239, p. 9 (noting that, between October 
+2010 and March 2015, SEC won more than 90% of cases brought before its 
+ALJs as compared to 69% of cases brought before federal courts). 
+Page Proof Pending Publication
+
+198 
+AXON ENTERPRISE, INC. v. FTC 
+Thomas, J., concurring 
+ciary reviewed actions and legal determinations of the execu­
+tive depended on private right.” J. Harrison, Jurisdiction, 
+Congressional Power, and Constitutional Remedies, 86 Geo. 
+L. J. 2513, 2516 (1998) (footnote omitted).2 
+Even today, the 
+distinction “between `public rights' and `private rights' ” con­
+tinues to inform this Court's understanding of “Article III 
+judicial power.” Oil States Energy Services, LLC v. 
+Greene's Energy Group, LLC, 584 U. S. –––, ––– (2018). 
+As I have explained, when private rights are at stake, full 
+Article III adjudication is likely required. Private rights 
+encompass “the three `absolute' rights,” life, liberty, and 
+property, “so called because they `appertain and belong to 
+particular men merely as individuals,' not `to them as mem­
+bers of society or standing in various relations to each 
+other'—that is, not dependent upon the will of the govern­
+ment.” Wellness Int'l Network, 575 U. S., at 713–714 (dis­
+senting opinion) (quoting 1 W. Blackstone, Commentaries on 
+the Laws of England 119 (1765); alterations omitted). Such 
+rights could be adjudicated and divested only by Article III 
+courts. See 575 U. S., at 713 (“[A]n exercise of the judicial 
+power is required `when the government wants to act au­
+thoritatively upon core private rights that had vested in a 
+particular individual' ” (quoting C. Nelson, Adjudication in 
+the Political Branches, 107 Colum. L. Rev. 559, 569 (2007) 
+(Nelson); alteration omitted)); see also J. Mascott, Constitu­
+tionally Conforming Agency Adjudication, 2 Loyola U. Chi. 
+J. Reg. Compliance 22, 45 (2017) (Mascott) (“Cases involving 
+. . . deprivations or transfers of life, liberty, or property con­
+2 This also helps to explain why, in Marbury v. Madison, 1 Cranch 137 
+(1803), Chief Justice Marshall found it necessary to frst determine 
+whether Marbury was “entitled to the possession of those evidences of 
+offce, which, being completed, became his property.” Id., at 155 (empha­
+sis added). Only once it was established that a vested property right was 
+at stake did the Court determine the remaining issues. Marbury thus 
+“stand[s] for the importance of private right.” Harrison, 86 Geo. L. J., at 
+2516, n. 10. 
+Page Proof Pending Publication
+
+199 
+Cite as: 598 U. S. 175 (2023) 
+Thomas, J., concurring 
+stitute a `core' of cases that . . . must be resolved by Article III 
+courts—not executive adjudicators `dressed up as courts' ”). 
+A different regime prevailed for public rights and privi­
+leges. Unlike “the private unalienable rights of each indi­
+vidual,” Lansing v. Smith, 4 Wend. 9, 21 (N. Y. 1829), public 
+rights “belon[g] to the people at large,” and governmental 
+privileges are “created purely for reasons of public policy 
+and . . . ha[ve] no counterpart in the Lockean state of na­
+ture.” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 
+574 U. S. 318, 344, n. 2 (2015) (Thomas, J., dissenting) (inter­
+nal quotation marks omitted). It was understood at the 
+founding that such governmental privileges (some of which 
+we today call Government benefts and entitlements) “could 
+be taken away without judicial process.” Sessions v. Di­
+maya, 584 U. S. –––, ––– (2018) (Thomas, J., dissenting); see 
+also Mascott 25. Thus, “the legislative and executive 
+branches may dispose of public rights [and privileges] at 
+will—including through non-Article III adjudications.” 
+Wellness Int'l Network, 575 U. S., at 713 (Thomas, J., 
+dissenting). 
+B 
+The requirement of plenary Article III adjudication of pri­
+vate rights began to change in the early 20th century. As 
+notions of administrative effciency came into vogue, courts 
+were viewed less as guardians of core private rights and 
+more as impediments to expert administrative adjudication. 
+See 20 F. 4th 194, 219 (CA5 2021) (Oldham, J., concurring). 
+After his election in 1904, President Theodore Roosevelt, 
+who “shared the progressive faith in administrative exper­
+tise,” sought to “rei[n] in judicial review” of administrative 
+action. Merrill 955. This progressive sentiment led to the 
+Hepburn Act, 34 Stat. 584, which was designed to curb judi­
+cial review of Interstate Commerce Commission (ICC) rate 
+orders. Prior to the Hepburn Act, the ICC was required to 
+fle a bill of equity in court to obtain judicial enforcement of 
+its rate orders. Merrill 955. But, the Hepburn Act pro­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+200 
+AXON ENTERPRISE, INC. v. FTC 
+Thomas, J., concurring 
+vided that the ICC's “orders were to be self-executing thirty 
+days after they became fnal, unless `suspended or set aside 
+by a court of competent jurisdiction' ”—almost inverting the 
+traditional system. Ibid. (quoting 34 Stat. 589). While the 
+Act was silent on the standard of review, this Court under­
+stood “the implied threat that if [it] did not back off from its 
+aggressive review practices, more drastic action would be in 
+the offng.” Merrill 959. 
+Accordingly, the Court began to develop what is now 
+known as the “appellate review model.” See id., at 963–965. 
+While maintaining that the courts must decide “all relevant 
+questions of constitutional power or right” and other ques­
+tions of law, ICC v. Illinois Central R. Co., 215 U. S. 452, 
+470 (1910), the Court held that an ICC order “supported by 
+evidence” must be “accepted as fnal,” ICC v. Union Pacifc 
+R. Co., 222 U. S. 541, 547 (1912). Following the Court's lead, 
+Congress codifed the appellate review model in the two stat­
+utes at issue here. The Federal Trade Commission Act pro­
+vided that “the fndings of the commission as to the facts, if 
+supported by testimony, shall in like manner be conclusive” 
+in federal court. 38 Stat. 720 (codifed, as amended, at 15 
+U. S. C. § 45(c)). The Securities Exchange Act of 1934 like­
+wise provided that the SEC's fndings “shall be conclusive” 
+“if supported by substantial evidence.” 48 Stat. 902 (codi­
+fed, as amended, at 15 U. S. C. § 78y). 
+In the 1930s, this Court upheld the constitutionality of the 
+appellate review model against arguments that it violated 
+the separation of powers and Seventh Amendment. First, 
+in Crowell v. Benson, 285 U. S. 22 (1932), the Court examined 
+the Longshoremen's and Harbor Workers' Compensation 
+Act, which authorized administrative agencies to adjudicate 
+workers' compensation claims against private parties. The 
+Court acknowledged that the case was “one of private right,” 
+id., at 51, but held that Congress had the authority to place 
+primary factfnding authority in an administrative agency, 
+id., at 54. It reasoned that such a scheme did not violate 
+
+201 
+Cite as: 598 U. S. 175 (2023) 
+Thomas, J., concurring 
+Article III because “Congress has considerable power to 
+structure [judicial] proceedings and to regulate the mecha­
+nisms that courts use to ascertain facts.” Nelson 600. 
+Next, in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 
+1 (1937), the Court examined the National Labor Relations 
+Act's judicial review provisions, which required an Article 
+III court to accept the National Labor Relations Board's fac­
+tual fndings so long as they were “supported by evidence” 
+in the administrative record. 49 Stat. 454. The Court held 
+that this arrangement did not violate the Seventh Amend­
+ment, which provides that “[i]n Suits at common law, where 
+the value in controversy shall exceed twenty dollars, the 
+right of trial by jury shall be preserved.” The Court rea­
+soned that, “because claims seeking statutory remedies for 
+violations of the Act were `statutory proceedings' that were 
+`unknown to the common law,' they were not `suits at com­
+mon law' within the meaning of the Seventh Amendment.” 
+Nelson 602 (quoting Jones & Laughlin, 301 U. S., at 48; alter­
+ations omitted). These cases solidifed administrative agen­
+cies' authority “to act as factfnding adjuncts to the federal 
+judiciary on a broad array of statutory claims, including 
+claims for monetary relief.” Nelson 602.3 
+II 
+As I have previously explained, “[b]ecause federal admin­
+istrative agencies are part of the Executive Branch, it is not 
+clear that they have power to adjudicate claims involving 
+3 The Court has further blurred the line between adjudications that re­
+quire Article III courts and those that do not by equating mere Govern­
+ment benefts and entitlements with core private rights. See, e. g., Gold­
+berg v. Kelly, 397 U. S. 254, 261–263 (1970) (holding that due process rights 
+attach to the deprivation of Government benefts); see also id., at 262, n. 8 
+(“It may be realistic today to regard welfare entitlements as more like 
+`property' than a `gratuity.' . . . It has been aptly noted that `society today 
+is built around entitlement' ” (quoting C. Reich, Individual Rights and So­
+cial Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965); 
+alteration omitted)). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+202 
+AXON ENTERPRISE, INC. v. FTC 
+Thomas, J., concurring 
+core private rights.” B&B Hardware, Inc. v. Hargis Indus­
+tries, Inc., 575 U. S. 138, 171 (2015) (dissenting opinion). 
+The “appellate review model” of agency adjudication thus 
+raises serious constitutional concerns. It may violate the 
+separation of powers by placing adjudicatory authority over 
+core private rights—a judicial rather than executive power— 
+within the authority of Article II agencies. See ibid. (“To 
+the extent that administrative agencies could, consistent 
+with the Constitution, function as courts, they might only be 
+able to do so with respect to claims involving public or quasi-
+private rights”). It may violate Article III by compelling 
+the Judiciary to defer to administrative agencies regarding 
+matters within the core of the Judicial Vesting Clause. See 
+P. Hamburger, Is Administrative Law Unlawful? 297 (2014) 
+(Hamburger) (explaining that, traditionally, “even at the be­
+hest of Congress, the judges could not defer to the executive 
+record or the facts supposedly established by it, lest they 
+abandon their offce of independent judgment and the offce 
+of juries to decide the facts”). And, it may violate due proc­
+ess by empowering entities that are not courts of competent 
+jurisdiction to deprive citizens of core private rights. See 
+B&B Hardware, 575 U. S., at 164 (Thomas, J., dissenting) 
+(“[H]owever broadly `court of competent jurisdiction' was 
+defned, it would require quite a leap to say that the concept 
+encompasses administrative agencies, which were recognized 
+as categorically different from courts” (alteration omitted)); 
+see also Hamburger 256 (“The guarantee of due process . . . 
+bars the government from holding subjects to account out­
+side courts and their processes”). Finally, the appellate re­
+view model may run afoul of the Seventh Amendment by 
+allowing an administrative agency to adjudicate what may 
+be core private rights without a jury. See Tull v. United 
+States, 481 U. S. 412, 417 (1987) (explaining that the Seventh 
+Amendment ensures the right to a jury trial for all adjudica­
+tions “analogous to `Suits at common law' ”). 
+It is no answer that an Article III court may eventually 
+review the agency order and its factual fndings under a def­
+
+203 
+Cite as: 598 U. S. 175 (2023) 
+Thomas, J., concurring 
+erential standard of review. In fact, there seems to be no 
+basis for treating factfnding differently from deciding ques­
+tions of law. Both are at the core of judicial power, as Arti­
+cle III itself acknowledges. See § 2, cl. 2 (providing that this 
+Court's appellate jurisdiction is “both as to Law and Fact”); 
+see also Stern v. Marshall, 564 U. S. 462, 484 (2011). For 
+much of the Nation's history, it was understood that Arti­
+cle III precluded “the political branches” from exercising 
+“power over the determination of individualized adjudicative 
+facts when core private rights were at stake.” Nelson 593 
+(emphasis deleted); see also Hamburger 297. It is obvious 
+that Article III “would not be satisfed if Congress provided 
+for judicial review but ordered the courts to affrm the 
+agency no matter what.” G. Lawson, The Rise and Rise of 
+the Administrative State, 107 Harv. L. Rev. 1231, 1247 (1994) 
+(Lawson). And, “[t]here is no reason to think that it is any 
+different if Congress instead simply orders courts to put a 
+thumb (or perhaps two forearms) on the agency's side of the 
+scale.” Id., at 1247–1248. Such a regime “allows a mere 
+party to supplant a jury as the court's fact fnder,” Ham­
+burger 319, and it “effectively vest[s] the judicial power 
+either in the agency or in Congress,” Lawson 1247. It thus 
+appears likely that, “when agency adjudicators stray outside 
+the proper limits of executive adjudication such as by depriv­
+ing individuals of vested property rights, they must not 
+serve even as fact-fnders subject to judicial deference.” 
+Mascott 25 (footnote omitted). 
+In sum, whether any form of administrative adjudication 
+is constitutionally permissible likely turns on the nature of 
+the right in question. If private rights are at stake, the 
+Constitution likely requires plenary Article III adjudication. 
+Conversely, if privileges or public rights are at stake, Con­
+gress likely can foreclose judicial review at will. 
+III 
+The rights at issue in these cases appear to be core private 
+rights that must be adjudicated by Article III courts. For 
+Page Proof Pending Publication
+
+204 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+one, Axon and Cochran face the threat of signifcant mone­
+tary fnes. Indeed, in the frst round of proceedings, the 
+SEC imposed a $22,500 civil penalty on Cochran. And, the 
+FTC seeks to require Axon to transfer intellectual property 
+to another entity. These types of penalties and orders im­
+plicate the core private right to property. See Lawson 1247 
+(“imposition of a civil penalty or fne” implicates core Article 
+III power); see also Nelson 626–627. Accordingly, they 
+likely must be adjudicated by Article III courts and juries. 
+See Tull, 481 U. S., at 422 (“A civil penalty was a type of 
+remedy at common law that could only be enforced in courts 
+of law”); accord, id., at 427–428 (Scalia, J., concurring in part 
+and dissenting in part). Naturally, merely labeling the dep­
+rivation of a core private right a “civil penalty” cannot allow 
+Congress and agencies to circumvent constitutional require­
+ments. Cf. Granfnanciera, S. A. v. Nordberg, 492 U. S. 33, 
+61 (1989) (“Congress cannot eliminate a party's Seventh 
+Amendment right to a jury trial merely by relabeling the 
+cause of action to which it attaches and placing exclusive 
+jurisdiction in an administrative agency or a specialized 
+court of equity”). By permitting administrative agencies to 
+adjudicate what may be core private rights, the administra­
+tive review schemes here raise serious constitutional issues. 
+*
+*
+* 
+Because the Court today correctly holds that Axon's and 
+Cochran's claims are not precluded by the review-channeling 
+provisions at issue here, I join its opinion in full. In an ap­
+propriate case, we should consider whether such schemes 
+and the appellate review model they embody are constitu­
+tional methods for the adjudication of private rights. 
+Justice Gorsuch, concurring in judgment. 
+I agree with the Court that Michelle Cochran and Axon 
+Enterprise are entitled to their day in court. But to my 
+mind the reason why has nothing to do with the “Thunder 
+Page Proof Pending Publication
+
+205 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+Basin factors.” Ante, at 186. Instead, it follows directly 
+from 28 U. S. C. § 1331. 
+I 
+The Constitution vests in Congress the power to create 
+and organize lower federal courts. See Art. I, § 8, cl. 9; 
+Art. III, § 1; Sheldon v. Sill, 8 How. 441, 449 (1850). Exer­
+cising that power, for the last 150 years Congress has afforded 
+lower federal courts jurisdiction to hear civil disputes arising 
+under the Constitution or laws of the United States. Act of 
+Mar. 3, 1875, ch. 137, § 1, 18 Stat. 470; see also Federal Ques­
+tion Jurisdictional Amendments Act of 1980, 94 Stat. 2369 
+(eliminating amount-in-controversy requirement). Today, 
+§ 1331 provides that “district courts shall have original juris­
+diction of all civil actions arising under the Constitution, 
+laws, or treaties of the United States.” Not may have juris­
+diction, but shall. Not some civil actions arising under fed­
+eral law, but all. The statute is as clear as statutes get, and 
+everyone agrees it encompasses the claims Ms. Cochran and 
+Axon seek to pursue. See ante, at 185. End of case, right? 
+Not so fast. As the Court sees it, Ms. Cochran, Axon, and 
+others like them must satisfy not only § 1331. They must 
+also satisfy a judge-made, multi-factor balancing test. One 
+assembled from remarks scattered here and there across the 
+pages of Thunder Basin Coal Co. v. Reich, 510 U. S. 200 
+(1994). And one, we are told, designed to ferret out whether 
+the legislators who adopted the Federal Trade Commission 
+Act in 1914 and the Securities Exchange Act in 1934 har­
+bored an “implici[t]” wish to “ous[t]” district courts of juris­
+diction in favor of agency proceedings. Ante, at 185–186. 
+So, yes, the law on the books may promise you the right to 
+be heard in a court of law. But sometimes that doesn't count 
+for much. Sometimes judges can shunt you to an agency 
+instead—so long as a test we have fabricated suggests to us 
+that is what Congress really wanted. 
+There are many problems with the Thunder Basin proj­
+ect, but start with its sheer incoherence. At the outset, 
+Page Proof Pending Publication
+
+206 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+Thunder Basin requires litigants and courts to ask whether 
+a “ `comprehensive review process' ” exists. Ante, at 186. 
+What does that mean? It seems a review process will “typi­
+cally” qualify as “comprehensive” when “review in a court 
+of appeals follow[s] the agency's own review.” Ibid. But 
+“typically” does not mean “necessarily.” Ibid. Just be­
+cause an agency can hear a case does not mean a district 
+court cannot. To decide whether a particular case belongs 
+in an agency rather than a court, you must consult three 
+further “considerations . . . commonly known now as the 
+Thunder Basin factors.” Ibid. 
+That's where the magic happens. The Thunder Basin fac­
+tors require assessing whether: (1) “precluding district court 
+jurisdiction” would “foreclose all meaningful judicial re­
+view”; (2) the plaintiff's claims are “wholly collateral” to the 
+statutory review scheme; and (3) the claims are “outside the 
+agency's expertise.” Ante, at 186 (internal quotation marks 
+omitted); see generally 510 U. S., at 207–215. Harnessing 
+the energy of these various factors, we are assured, will 
+allow anyone to detect a latent congressional intent to oust 
+district courts of their jurisdiction in any given case. See 
+ante, at 186–188. 
+Just see how easy it is. To apply the frst factor, all you 
+have to do is ask a few more questions. They include 
+whether the plaintiff could “eventually” obtain review in 
+some federal court; whether that court's review “would come 
+too late to be meaningful”; and (maybe) how analogous the 
+plaintiff's plea for immediate review is to a governmental 
+offcial's plea for qualifed immunity. Ante, at 190–192. If 
+this is starting to seem more confounding than clarifying, do 
+not worry. The frst factor is the “least straightforward” 
+anyway. Ante, at 190. When it comes to the second factor, 
+you only need to evaluate the “collateralism” of the plaintiff 's 
+claim. Ante, at 192. Apparently, that “requires consider­
+ing the nature of the claim, not the status (pending or not) 
+of an agency proceeding.” Ante, at 194. The third factor 
+Page Proof Pending Publication
+
+207 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+is just one easy question too, focused on whether the plain­
+tiff 's claim is “intertwined with or embedded in matters on 
+which the [agency is] expert.” Ante, at 195. If that does 
+not help, try asking if the claim is “entangled” with the 
+agency's expertise, ibid., or if the agency can bring to bear 
+“distinctive knowledge,” ante, at 186. 
+Even after you make it through these twists and turns, a 
+fnal surprise sometimes awaits. The Court holds that all 
+three Thunder Basin factors favor Ms. Cochran and Axon, 
+so their cases may proceed in district court. Ante, at 195. 
+But what happens when the factors point in different direc­
+tions, some in favor and others against immediate judicial 
+review? No one knows. You get to guess.1 
+II 
+Putting aside these problems with the Thunder Basin 
+project serves only to expose others. We are told that con­
+sulting so many disparate factors is essential if we are to 
+divine and give effect to “implici[t]” congressional “inten­
+[tions]” to divest district courts of jurisdiction in favor of cer­
+tain agency proceedings. Ante, at 185–186 (internal quota­
+tion marks omitted). But what gives courts authority to en­
+gage in this business of jurisdiction-stripping-by-implication? 
+The answer, of course, is nothing. Under our Constitu­
+tion, “Congress, and not the Judiciary, defnes the scope of 
+federal jurisdiction.” New Orleans Public Service, Inc. v. 
+Council of City of New Orleans, 491 U. S. 350, 359 (1989). 
+Federal courts “have no more right to decline the exercise 
+of jurisdiction which is given, than to usurp that which is 
+not given.” Cohens v. Virginia, 6 Wheat. 264, 404 (1821) 
+(Marshall, C. J., for the Court). That is why we have called 
+1 See Tr. of Oral Arg. in No. 21–86, p. 81 (“Justice Alito: . . . Does 
+Axon have to win on all three? Do you have to win on all three? Or can 
+either of you win if one or more factors go in one direction and the other 
+factor or factors go in the other direction? [Deputy Solicitor General]: 
+. . . I'm not trying to be obstreperous, but I think it would depend . . . ”). 
+Page Proof Pending Publication
+
+208 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+it the “true rule” that “statutes clearly defning the juris­
+diction of the courts . . . must control . . . in the absence 
+of subsequent legislation equally express.” Rosencrans v. 
+United States, 165 U. S. 257, 262 (1897). And why we have 
+said that “jurisdiction conferred by 28 U. S. C. § 1331,” in par­
+ticular, “should hold frm against mere implication[s]” from 
+other laws. Mims v. Arrow Financial Services, LLC, 565 
+U. S. 368, 383 (2012) (internal quotation marks omitted). 
+Thunder Basin defes these foundational rules. Maybe 
+worse, it exhibits familiarity with none of them. No one dis­
+putes that § 1331 represents a valid exercise of Congress's 
+authority to regulate the jurisdiction of the district courts. 
+No one questions that § 1331 permits cases like those before 
+us to proceed. No Member of the Court points to any stat­
+ute Congress has adopted that speaks otherwise. Under the 
+law, that should be the end of the matter. But under Thun­
+der Basin, courts may refuse individuals their right to a judi­
+cial forum based on nothing more than suppositions about 
+“implici[t]” congressional “inten[tions].” Ante, at 185–186. 
+Divesting jurisdiction by mere implication goes from out-of­
+bounds to the name of the game. Along the way, this Court 
+arrogates to itself a power to control the jurisdiction of lower 
+federal courts that the Constitution reserves to Congress. 
+All to what end? At bottom, Thunder Basin rests on a 
+view that it is sometimes more important to allow agencies 
+to work without the bother of having to answer suits against 
+them than it is to allow individuals their day in court. But 
+when Congress holds that view, it does not ask us to juggle 
+a variety of factors and then guess at the implicit intentions 
+of legislators past. It simply tells us. See, e. g., 12 U. S. C. 
+§ 1818(i)(1) (“[E]xcept as otherwise provided in this section 
+or under section 1831o or 1831p–1 of this title no court shall 
+have jurisdiction to affect by injunction or otherwise the is­
+suance or enforcement of any notice or order under any such 
+section”); 42 U. S. C. § 405(h) (“No action against the United 
+States, the Commissioner of Social Security, or any offcer or 
+Page Proof Pending Publication
+
+209 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+employee thereof shall be brought under section 1331 or 1346 
+of title 28 to recover on any claim arising under this 
+subchapter”).2 
+III 
+There is a better way. Our job is to interpret the laws 
+Congress has adopted. It is a task that “begins with the 
+language of the [relevant] statute[s]” and, when “the statu­
+tory language provides a clear answer, it ends there as well.” 
+Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999) 
+(internal quotation marks omitted). Because no one doubts 
+that § 1331 vests district courts with jurisdiction to hear 
+these cases, the only question properly before us is whether 
+Congress has actually carved out some exception in some 
+other statute. The government points to two candidates. 
+But the government's arguments from those laws are so im­
+probable that the Court barely mentions them. I pause to 
+walk through each only to illustrate how these cases should 
+have been resolved. 
+2 These are only a few of the conceptual problems with the Thunder 
+Basin project. Here's another: If the Thunder Basin factors really did 
+delineate the bounds of § 1331 jurisdiction, a district court would have to 
+balance them in every case where there is even the possibility of parallel 
+agency proceedings. That would hold true regardless of whether the 
+agency invokes Thunder Basin and regardless of whether the agency itself 
+may prefer to proceed in court. See Wilkins v. United States, 598 U. S. 
+–––, ––– (2023) (“courts have a duty to consider [jurisdictional bars] 
+sua sponte”). But this Court has never said Thunder Basin commands 
+anything like that. At the very least, then, the Court should acknowledge 
+Thunder Basin for what it truly is: a judge-made exhaustion requirement, 
+not a jurisdictional rule. Even that much candor, however, would not 
+rescue the contrivance. As this Court has recognized, we possess no 
+more authority to “impos[e] extra-statutory limitations” on the “capacity 
+to sue” than we do to impose extra-statutory limitations on the jurisdiction 
+of the lower federal courts. Ross v. Blake, 578 U. S. 632, 640, n. 1 (2016); 
+see Jones v. Bock, 549 U. S. 199, 203 (2007) (“crafting and imposing” ex­
+haustion rules “not required by” statute “exceeds the proper limits on the 
+judicial role”). 
+Page Proof Pending Publication
+
+210 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+In Ms. Cochran's case, the government directs our atten­
+tion to § 78y(a)(1) of the Exchange Act. That provision says 
+that “[a] person aggrieved by a fnal order of the Commission 
+. . . may obtain review of the order in the United States 
+Court of Appeals . . . by fling in such court . . . a written 
+petition requesting that the order be modifed or set aside in 
+whole or in part.” 15 U. S. C. § 78y(a)(1). Plainly, the stat­
+ute promises jurisdiction in a court of appeals for those hop­
+ing to contest “a fnal order of the Commission.” But just 
+as plainly, Ms. Cochran does not seek to challenge an SEC 
+fnal order. Nor could she, because the agency has not en­
+tered one in her case. Ms. Cochran does not even seek relief 
+in anticipation of a fnal agency order. Instead, she seeks 
+to avoid being hauled before an agency that she alleges is 
+unconstitutionally structured. See ante, at 182–183. That 
+is exactly the kind of “here-and-now injury” this Court has 
+held “can be remedied by a court” without regard to the 
+eventual outcome of agency proceedings. Seila Law LLC v. 
+Consumer Financial Protection Bureau, 591 U. S. –––, ––– 
+(2020) (internal quotation marks omitted). 
+If all that were not enough, there is more. A neighboring 
+statutory provision says that “the rights and remedies” the 
+Exchange Act authorizes “shall be in addition to any and 
+all other rights and remedies that may exist at law or in 
+equity.” § 78bb(a)(2). This Court has explained that a 
+“saving clause” of this sort “strongly buttresse[s]” the con­
+clusion that a review provision such as § 78y(a)(1) does not 
+preclude “traditional avenues of judicial relief.” Abbott 
+Laboratories v. Gardner, 387 U. S. 136, 142, 144 (1967). 
+And, of course, one traditional avenue of relief is a suit in 
+district court under § 1331 seeking to enjoin unconstitutional 
+conduct. See Free Enterprise Fund v. Public Company Ac­
+counting Oversight Bd., 561 U. S. 477, 491, n. 2 (2010). Far 
+from barring Ms. Cochran's path to court, then, the Ex­
+change Act expressly preserves it. 
+The story repeats itself when it comes to Axon. The gov­
+ernment insists that § 5(c) of the FTC Act precludes district 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+211 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+courts from entertaining constitutional challenges to the 
+agency's structure. But § 5(c) provides only that parties 
+subject to “an order of the Commission to cease and desist 
+from using any method of competition or act or practice may 
+obtain a review of such order in the court of appeals of the 
+United States.” 15 U. S. C. § 45(c). And, here again, we 
+have nothing like that. The FTC has not ordered Axon to 
+cease and desist from anything. That § 5(c) does not fore­
+close Axon's case fnds reinforcement next door too. Section 
+5(d) holds that, “[u]pon the fling of the record . . . the juris­
+diction of the court of appeals of the United States to affrm, 
+enforce, modify, or set aside orders of the Commission shall 
+be exclusive.” § 45(d). So until an administrative record is 
+lodged in the court of appeals—something that hasn't hap­
+pened here either—the appellate court's jurisdiction is not 
+exclusive and a plaintiff like Axon remains free to proceed 
+in district court. 
+In both cases, the relevant statutes guide the way. Sec­
+tion 1331 grants district courts the power to hear Ms. Coch­
+ran's and Axon's claims and no other law takes that power 
+away. Resolving jurisdictional disputes by looking to the 
+terms of the statutes Congress has adopted may hold none 
+of the suspense that comes with a ride on the Thunder Basin 
+roller coaster. But that is as it should be. “Where the stat­
+utory language is clear, our sole function . . . is to enforce it 
+according to its terms.” Rake v. Wade, 508 U. S. 464, 471 
+(1993) (internal quotation marks omitted).3 
+3 The parties spar over whether the government forfeited different ar­
+guments against district court jurisdiction premised on two provisions of 
+the Administrative Procedure Act (APA). E. g., Reply Brief for Respond­
+ent in No. 21–1239, p. 21. Forfeited or not, these arguments hardly help 
+the government. One of the APA provisions the government cites con­
+cerns review of “preliminary, procedural, or intermediate agency action.” 
+5 U. S. C. § 704. The government assumes we have “agency action” by 
+dint of the “initiation” or “commencement” of agency proceedings against 
+Ms. Cochran and Axon. Tr. of Oral Arg. in No. 21–86, p. 51; Tr. of Oral 
+Arg. in No. 21–1239, p. 67. But “agency action” is a defned term, one 
+that embraces “the whole or a part of an agency rule, order, license, 
+
+212 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+IV 
+While the Court reaches the right result today, its choice 
+of the wrong path matters. Not just because continuing to 
+apply the Thunder Basin factors leaves the law badly dis­
+torted. It also matters because Thunder Basin's throw-it­
+in-a-blender approach to jurisdiction imposes serious and 
+needless costs on litigants and lower courts alike. 
+Jurisdictional rules, this Court has often said, should be 
+“clear and easy to apply.” Hamer v. Neighborhood Housing 
+Servs. of Chicago, 583 U. S. 17, ––– (2017); see also Sisson v. 
+Ruby, 497 U. S. 358, 364, n. 2 (1990); Foremost Ins. Co. v. 
+Richardson, 457 U. S. 668, 676–677 (1982). For parties, 
+“[c]omplex jurisdictional tests complicate a case, eating up 
+time and money as [they] litigate, not the merits of their 
+claims, but which court is the right court to decide those 
+claims.” Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010). For 
+courts, jurisdictional rules “mark the bounds” of their “ `adju­
+dicatory authority.' ” Boechler v. Commissioner, 596 U. S. 
+–––, ––– (2022). Judges therefore “beneft from straightfor­
+ward rules under which they can readily assure themselves 
+of their power to hear a case,” Hertz, 559 U. S., at 94, while 
+“adventitious” rules leave them with “almost impossible” 
+tasks to perform that squander their limited resources, Ex­
+ecutive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 266 
+(1972). 
+There are many words to describe the Thunder Basin fac­
+tors, but “clear and easy to apply” are not among them. To 
+sanction, relief, or the equivalent or denial thereof, or failure to act.” 
+5 U. S. C. § 551(13). Ms. Cochran and Axon are not subject to, and do not 
+seek review of, any of those things. The other APA provision says “[t]he 
+form of proceeding for judicial review is the special statutory review pro­
+ceeding relevant to the subject matter in a court specifed by statute.” 
+§ 703. But as we have seen, Ms. Cochran and Axon do not seek judicial 
+review of an SEC fnal order or an FTC cease-and-desist order—and both 
+the Exchange Act and the FTC Act preserve their right to proceed in 
+district court to address the here-and-now injuries they assert. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+213 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+appreciate the trouble Thunder Basin can generate for liti­
+gants and lower courts alike, consider some of the facts of 
+Ms. Cochran's case that do not fnd their way into the 
+Court's opinion. 
+A single mother of two and a certifed public accountant, 
+Ms. Cochran began looking for part-time work in 2007. 
+Eventually, she found a position at a small company called 
+The Hall Group. Soon, however, she discovered that the 
+owner, David Hall, was not just abrasive but dishonest. At 
+one point, he even added Ms. Cochran's name to the frm's 
+business license without her permission, all to facilitate his 
+idea of rebranding his company as “The Hall Group CPAs.” 
+When Ms. Cochran protested, Mr. Hall offered her a choice: 
+become a nonequity partner with no increase in pay so that 
+he could use the new name or leave the frm. Ms. Cochran 
+chose to quit and put the whole ordeal behind her. 
+Or so she thought. Years later, in 2016, Ms. Cochran 
+learned that the SEC had initiated an enforcement proceed­
+ing against Mr. Hall, another of his former employees, and 
+herself. The SEC charged Ms. Cochran with violating 
+“Rule 2–02(b)(1) of Regulation S–X and Section 13(a) of the 
+Securities Exchange Act of 1934 and Rules 13a–1 and 13a– 
+13 thereunder,” as well as “aid[ing] and abett[ing] . . . Rule 
+2–02(b)(1) violations.” In re Hall, SEC Initial Decision Re­
+lease No. 1114, p. 1 (2017). In English, the SEC alleged that 
+Ms. Cochran had failed to complete auditing checklists, leav­
+ing certain sections of certain forms “blank.” Id., at 12–13. 
+The agency brought these charges even though there was 
+“no evidence” that the incomplete paperwork had resulted in 
+any “monetary harm to clients or investors.” Id., at 28. 
+The SEC elected to proceed against Ms. Cochran before its 
+own internal tribunal rather than (as it could have) a court 
+of law. The agency assigned the case to one of its hearing 
+offcers (an “administrative law judge” or “ALJ”). Report­
+edly, that ALJ made a practice of warning defendants during 
+settlement discussions that he had “never ruled against the 
+
+214 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+agency's enforcement division.” J. Eaglesham, SEC Judges' 
+Fairness Is in Spotlight, Wall St. J., Nov. 23, 2015, p. C6. It 
+seems, though, Ms. Cochran didn't take the hint. She re­
+fused to settle and sought to represent herself in the hearing 
+that followed. It did not go well. Just as her hearing was 
+about to start, her former boss settled his own case and then 
+turned about to testify against Ms. Cochran. In the end, the 
+ALJ fned Ms. Cochran $22,500 and banned her from practic­
+ing before the SEC as an accountant for at least fve years. 
+Ms. Cochran responded by asking the full Commission to 
+review the ALJ's decision. Around the same time, this 
+Court held in an unrelated case that the ALJ who presided 
+over Ms. Cochran's case had been unconstitutionally ap­
+pointed. See Lucia v. SEC, 585 U. S. –––, ––– (2018). 
+Ms. Cochran might have thought that would bring her own 
+case to a close. But the SEC chose instead to take a mulli­
+gan. In 2018, the agency vacated the initial decision against 
+Ms. Cochran and assigned a different, properly appointed 
+ALJ to retry the case. So two years after her administra­
+tive proceedings began, they began again. 
+For Ms. Cochran, that was enough. She sued the SEC 
+in federal district court. She sought to enjoin the agency's 
+proceedings on the ground that all of its ALJs are unconsti­
+tutionally insulated from presidential supervision, pointing 
+to this Court's decisions in Lucia and Free Enterprise 
+Fund. Lucia held that SEC ALJs are inferior offcers 
+under the Constitution's Appointments Clause. 585 U. S., 
+at –––. And Free Enterprise Fund held that the President 
+must retain adequate authority to supervise and even re­
+move such offcers. 561 U. S., at 492. 
+In 2019, the district court dismissed Ms. Cochran's suit 
+without reaching its merits. 2019 WL 1359252 (ND Tex., 
+Mar. 25, 2019). The court did so because it thought Thunder 
+Basin required that result. Id., at *1. A year and a half 
+later, a panel of the Fifth Circuit ran through the Thunder 
+Basin factors and affrmed. 969 F. 3d 507 (2020). A year 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+215 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+and a half after that, the en banc Fifth Circuit took another 
+look and largely reversed. 20 F. 4th 194 (2021). Now, more 
+than four years after Ms. Cochran fled her complaint, this 
+Court balances the Thunder Basin factors anew and holds 
+that her case belonged in district court all along. Ante, at 
+195. For its part, Axon has endured a similarly tortuous 
+path. Over the course of three years, the district court dis­
+missed its case, 452 F. Supp. 3d 882 (Ariz. 2020), and the 
+court of appeals affrmed, 986 F. 3d 1173 (CA9 2021), only to 
+have this Court reverse that judgment today. 
+This is what a win looks like under Thunder Basin. 
+When you replace clear jurisdictional rules with a jumble of 
+factors, the room for disagreement grows. The incentive to 
+litigate increases. Years and fortunes are lost just fguring 
+out where a case belongs. Ms. Cochran and Axon have al­
+ready endured multi-year odysseys through the entire fed­
+eral judicial system—and no judge yet has breathed a word 
+about the merits of their claims. Nor can I fault the district 
+court in Ms. Cochran's case, or all of the lower courts in 
+Axon's case, for thinking the Thunder Basin factors required 
+dismissal. When we give our lower-court colleagues such 
+confused instructions, we guarantee different courts will 
+regularly reach different outcomes on the same facts. 
+Maybe even worse is what Thunder Basin means for oth­
+ers. Not many possess the perseverance of Ms. Cochran and 
+Axon. The cost, time, and uncertainty associated with liti­
+gating a raft of opaque jurisdictional factors will deter many 
+people from even trying to reach the court of law to which 
+they are entitled. Nor is the loss of a day in court in favor 
+of one before an agency a small thing. Agencies like the 
+SEC and FTC combine the functions of investigator, prose­
+cutor, and judge under one roof. They employ relaxed rules 
+of procedure and evidence—rules they make for themselves. 
+The numbers reveal just how tilted this game is. From 2010 
+to 2015, the SEC won 90% of its contested in-house proceed­
+ings compared to 69% of the cases it brought in federal court. 
+
+216 
+AXON ENTERPRISE, INC. v. FTC 
+Gorsuch, J., concurring in judgment 
+See G. Mark, Response: SEC Enforcement Discretion, 94 
+Texas L. Rev. See Also 261, 262 (2016). Meanwhile, some 
+say the FTC has not lost an in-house proceeding in 25 years. 
+See Brief for Petitioner in No. 21–86, p. 47. But see Brief 
+for American Antitrust Institute as Amicus Curiae in No. 
+21–86, p. 18 (suggesting the FTC has won more like 90% of 
+the time). 
+That review is available in a court of appeals after an 
+agency completes its work hardly makes up for a day in court 
+before an agency says it's done. When a case eventually 
+makes its way to an appellate court, judges sometimes defer 
+to the agency's conclusions (especially when it comes to dis­
+puted questions of fact). And how many people can afford 
+to carry a case that far anyway? Ms. Cochran's administra­
+tive proceedings have already dragged on for seven years. 
+Thanks in part to these realities, the bulk of agency cases 
+settle. See Tilton v. SEC, 824 F. 3d 276, 298, n. 5 (CA2 
+2016) (Droney, J., dissenting) (“vast majority” of SEC cases 
+settle); Tr. of Oral Arg. in No. 21–1239, p. 6 (“more than 90 
+percent” of such cases settle). Aware, too, that few can out­
+last or outspend the federal government, agencies sometimes 
+use this as leverage to extract settlement terms they could 
+not lawfully obtain any other way.4 
+Like any needlessly un­
+clear jurisdictional test, Thunder Basin carries with it real 
+costs—for individuals seeking to vindicate their rights, for 
+lower courts who deserve better guidance, and for our legal 
+system's promise of a “just, speedy, and inexpensive determi­
+nation of every” case, Fed. Rule Civ. Proc. 1. 
+4 See P. Hamburger, Purchasing Submission: Conditions, Power, and 
+Freedom 223 (2021) (describing this as “regulatory extortion”); D. Gins­
+burg & J. Wright, Antitrust Settlement: The Culture of Consent, in 1 
+W. Kovacic: An Antitrust Tribute 177 (N. Charbit, E. Ramundo, A. Cheh­
+tova, & A. Slater eds. 2013) (“Consent decrees create potential for an en­
+forcement agency to extract from parties under investigation commit­
+ments well beyond what the agency could obtain in litigation”). 
+Page Proof Pending Publication
+
+217 
+Cite as: 598 U. S. 175 (2023) 
+Gorsuch, J., concurring in judgment 
+* 
+When Congress withholds jurisdiction, we must respect its 
+choice. But when Congress grants jurisdiction to the Na­
+tion's courts, we must respect that choice too. We have no 
+authority to froth plain statutory text with factors of our 
+own design, all with an eye to denying some people the day 
+in court the law promises them. Respectfully, this Court 
+should be done with the Thunder Basin project. I hope it 
+will be soon. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+PRELIMINARY PRINT 
+Volume 605 U. S. Part 2 
+Pages 335–359 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 12, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2024 
+335 
+Syllabus 
+A. J. T., by and through her parents, A. T., et al. v. 
+OSSEO AREA SCHOOLS, INDEPENDENT SCHOOL 
+DISTRICT NO. 279, et al. 
+certiorari to the united states court of appeals for 
+the eighth circuit 
+No. 24–249. Argued April 28, 2025—Decided June 12, 2025 
+Multiple federal laws afford protections for children with disabilities in 
+public schools. Three statutory schemes are particularly relevant to 
+this case. Section 504 of the Rehabilitation Act of 1973 provides that 
+no qualifed individual with a disability shall be excluded from participa­
+tion in, denied the benefts of, or subjected to discrimination under any 
+federally funded program solely by reason of her or his disability. Simi­
+larly, Title II of the Americans with Disabilities Act (ADA) prohibits 
+qualifed individuals with disabilities from being excluded from or de­
+nied the benefts of a public entity's services, programs, or activities by 
+reason of disability. While the antidiscrimination guarantees of Section 
+504 and Title II apply in a variety of contexts, the Individuals with 
+Disabilities Education Act (IDEA) offers federal funds to States in ex­
+change for the commitment to furnish the core guarantee of a “free 
+appropriate public education” to children in public schools with certain 
+physical or intellectual disabilities. The centerpiece of the IDEA is 
+the provision of an “individualized educational program,” (IEP) which 
+“spells out” a plan to meet all of the educational needs of a child with a 
+qualifying disability. Fry v. Napoleon Community Schools, 580 U. S. 
+154, 158. 
+Petitioner A. J. T. is a teenage girl with a rare form of epilepsy that 
+severely limits her physical and cognitive functioning. She suffers from 
+seizures that are so frequent in the mornings that she cannot attend 
+school before noon, though she is alert and able to learn from noon until 
+6 p.m. For the frst few years of her schooling, school offcials accommo­
+dated A. J. T.'s condition by permitting her to avoid morning activities 
+and instead receive evening instruction. But when A. J. T.'s family 
+moved to Minnesota in 2015, her new school district—Osseo Area Public 
+Schools, Independent District No. 279—denied her parents' repeated 
+requests to include evening instruction in A. J. T.'s IEP. Between 2015 
+and 2018, A. J. T. received only 4.25 hours of instruction daily compared 
+to the typical 6.5-hour school day for nondisabled students in the dis­
+trict. After even further cuts to A. J. T.'s school day were proposed, 
+her parents fled an IDEA complaint with the Minnesota Department 
+
+Page Proof Pending Publication
+336 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Syllabus 
+of Education, alleging that the school's refusal to provide afterhours 
+instruction denied A. J. T. a free appropriate public education. An Ad­
+ministrative Law Judge determined that the school district had vio­
+lated the IDEA and ordered the school to provide compensatory educa­
+tion and evening instruction. Federal courts subsequently affrmed 
+A. J. T.'s IDEA victory. 
+A. J. T. and her parents then sued under the ADA and the Rehabilita­
+tion Act, requesting a permanent injunction, reimbursement for certain 
+costs, and compensatory damages. The District Court granted sum­
+mary judgment for the school, and the Eighth Circuit affrmed. In so 
+holding, the Eighth Circuit stated that a school district's failure to pro­
+vide a reasonable accommodation was not enough to state a prima facie 
+case of discrimination under Monahan v. Nebraska, 687 F. 2d 1164, 
+which requires a plaintiff to prove conduct by school offcials rising to 
+the level of bad faith or gross misjudgment. 
+Held: Schoolchildren bringing ADA and Rehabilitation Act claims related 
+to their education are not required to make a heightened showing of 
+“bad faith or gross misjudgment” but instead are subject to the same 
+standards that apply in other disability discrimination contexts. 
+Pp. 344–351. 
+(a) Outside the educational services context, courts of appeals permit 
+plaintiffs to establish violations and obtain injunctive relief under the 
+ADA and Rehabilitation Act without proving intent to discriminate. 
+To obtain compensatory damages, courts generally require a showing of 
+intentional discrimination, which most circuits fnd satisfed by “deliber­
+ate indifference”—a standard requiring only a showing that the defend­
+ant disregarded a strong likelihood that the challenged action would 
+violate federally protected rights. Nothing in the text of the applicable 
+substantive protections or remedial provisions of Title II of the ADA 
+or Section 504 of the Rehabilitation Act suggests that claims based on 
+educational services should be subject to a distinct, more demanding 
+analysis. Pp. 344–345. 
+(b) Some courts, however, have come to apply a heightened intent 
+standard to ADA and Rehabilitation Act claims in the educational serv­
+ices context. This standard traces back to the “bad faith or gross mis­
+judgment” rule articulated by the Eighth Circuit in its 1982 decision in 
+Monahan, in which the Eighth Circuit reasoned that to prove discrimi­
+nation under the Rehabilitation Act in the educational context, a plain­
+tiff must show “something more than a mere failure to provide” a free 
+appropriate public education. 687 F. 2d, at 1170. The court explained 
+a heightened showing of bad faith or gross misjudgment was necessary 
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 335 (2025) 
+337 
+Syllabus 
+to “harmonize” the Rehabilitation Act and the IDEA and to refect the 
+proper balance between disabled children's rights, state offcials' respon­
+sibilities, and courts' competence in technical felds. Id., at 1171. 
+In Smith v. Robinson, 468 U. S. 992, this Court similarly tried to “har­
+monize” the IDEA's specifc guarantee of a free appropriate public edu­
+cation with the protections of other antidiscrimination laws, ultimately 
+concluding that the IDEA's comprehensive statutory scheme was the 
+exclusive avenue by which a disabled child or his parents could chal­
+lenge the adequacy of his education. Within two years, however, Con­
+gress enacted a new provision of the IDEA overturning Smith. That 
+provision, now codifed at 20 U. S. C. § 1415(l), provides that nothing in 
+the IDEA “shall be construed to restrict or limit the rights, procedures, 
+and remedies available under” the ADA, Rehabilitation Act, or other 
+federal laws protecting disabled children's rights. This provision 
+makes clear that the IDEA does not restrict or limit rights or remedies 
+that other federal antidiscrimination statutes independently confer on 
+children with disabilities. The bad faith or gross misjudgment rule de­
+rived from Monahan is irreconcilable with the unambiguous directive 
+of § 1415(l). In imposing a higher bar for discrimination claims based 
+on educational services as compared to other sorts of disability discrimi­
+nation claims, the Eighth Circuit effectively read the IDEA to implicitly 
+limit the ability of disabled schoolchildren to vindicate their independent 
+ADA and Rehabilitation Act rights, thereby making it more diffcult to 
+secure the statutory remedies provided by Congress. Pp. 345–349. 
+(c) The school district no longer defends Monahan's asymmetric rule, 
+and contends instead that bad faith or gross misjudgment is the correct 
+standard of intent for all ADA and Rehabilitation Act claims, whether 
+in or out of schools. This argument was not resolved below, was not 
+raised in the brief in opposition to certiorari, and is outside the question 
+presented. The Court declines the invitation to inject into this case 
+signifcant issues that have not been fully presented. Pp. 349–351. 
+96 F. 4th 1058, vacated and remanded. 
+Roberts, C. J., delivered the opinion for a unanimous Court. Thomas, 
+J., fled a concurring opinion, in which Kavanaugh, J., joined, post, 
+p. 351. Sotomayor, J., fled a concurring opinion, in which Jackson, J., 
+joined, post, p. 355. 
+Roman Martinez argued the cause for petitioner. With 
+him on the briefs were Peter A. Prindiville, Nicholas Rosel­
+lini, and Amy J. Goetz. 
+
+338 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+Nicole Frazer Reaves argued the cause for the United 
+States as amicus curiae urging vacatur. With her on the 
+brief were Deputy Solicitor General Gannon, Acting Assist­
+ant Attorney General Roth, Deputy Assistant Attorney 
+General Warner, Deputy Solicitor General Stewart, Sydney 
+A. R. Foster, Ellen Noble, Charles W. Scarborough, Cather­
+ine Padhi, and Thomas Wheeler. 
+Lisa S. Blatt argued the cause for respondents. With 
+her on the brief were Charles L. McCloud, Aaron Z. Roper, 
+Laura Tubbs Booth, Christian R. Shafer, and Adam J. 
+Frudden.* 
+Chief Justice Roberts delivered the opinion of the 
+Court. 
+Petitioner A. J. T. is a teenage girl who suffers from a 
+rare form of epilepsy that severely limits her physical and 
+cognitive functioning. When school administrators denied 
+her certain educational accommodations, A. J. T.'s parents 
+sued the school district, alleging discrimination on the basis 
+of disability. The courts below held that A. J. T.'s claims 
+could not go forward because she had not shown that school 
+offcials acted with “bad faith or gross misjudgment.” That 
+standard, the courts explained, applies uniquely in the educa­
+tional services context and requires a more demanding show­
+*Briefs of amici curiae urging reversal were fled for the Council of 
+Parent Attorneys and Advocates et al. by Brian Wolfman, Regina Wang, 
+and Selene A. Almazan-Altobelli; and for Rep. Tony Coelho et al. by 
+David A. Strauss, Sarah M. Konsky, and Matthew S. Hellman. 
+A brief of amici curiae urging affrmance was fled for the State of 
+Tennessee et al. by Jonathan Skrmetti, Attorney General of Tennessee, J. 
+Matthew Rice, Solicitor General, Whitney D. Hermandorfer, and Virginia 
+N. Adamson, Assistant Solicitor General, and by the Attorneys General 
+for their respective States as follows: Tim Griffn of Arkansas, James 
+Uthmeier of Florida, Raúl Labrador of Idaho, Aaron M. Frey of Maine, 
+Lynn Fitch of Mississippi, and Ken Paxton of Texas. 
+Sonja H. Trainor and W. Stuart Stuller fled a brief for AASA, The 
+School Superintendents Association et al. as amici curiae. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+339 
+Opinion of the Court 
+ing compared to other sorts of disability discrimination 
+claims. We consider whether the courts below were right 
+to require this heightened showing. 
+I 
+A 
+Multiple federal laws afford “diverse” (and occasionally 
+overlapping) protections for children with disabilities in pub­
+lic schools. Fry v. Napoleon Community Schools, 580 U. S. 
+154, 170 (2017); see id., at 170–171. Three are particularly 
+relevant to this case. Beginning with two broadly applica­
+ble such laws, both Section 504 of the Rehabilitation Act of 
+1973, 87 Stat. 394, as amended, 29 U. S. C. § 794, and Title II 
+of the Americans with Disabilities Act of 1990 (ADA), 104 
+Stat. 337, as amended, 42 U. S. C. § 12131 et seq., prohibit 
+discrimination on the basis of disability in a wide variety 
+of contexts. See Fry, 580 U. S., at 159. Section 504 of the 
+Rehabilitation Act provides: “No otherwise qualifed individ­
+ual with a disability . . . shall, solely by reason of her or his 
+disability, be excluded from the participation in, be denied 
+the benefts of, or be subjected to discrimination under any 
+program or activity receiving Federal fnancial assistance.” 
+29 U. S. C. § 794(a). Similarly, under Title II of the ADA, 
+“no qualifed individual with a disability shall, by reason of 
+such disability, be excluded from participation in or be denied 
+the benefts of the services, programs, or activities of a public 
+entity, or be subjected to discrimination by any such entity.” 
+42 U. S. C. § 12132. Both Section 504 and Title II “authorize 
+individuals to seek redress for violations of their substantive 
+guarantees by bringing suits for injunctive relief or money 
+damages.” Fry, 580 U. S., at 160; see 29 U. S. C. § 794a(a)(2); 
+42 U. S. C. § 12133. 
+Beyond these generally applicable antidiscrimination laws, 
+the Individuals with Disabilities Education Act (IDEA), 84 
+Stat. 175, as amended, 20 U. S. C. § 1400 et seq., “offers fed­
+eral funds to States in exchange for a commitment: to fur­
+Page Proof Pending Publication
+
+340 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+nish” the core guarantee of a “ `free appropriate public educa­
+tion' . . . to all children with certain physical or intellectual 
+disabilities.” Fry, 580 U. S., at 158 (quoting § 1412(a)(1)(A)).1 
+To that end, once a State accepts the IDEA's fnancial assist­
+ance, it must provide “ `special education and related serv­
+ices,' ” including “ `instruction' tailored to meet a child's 
+`unique needs' and suffcient `supportive services' to permit 
+the child to beneft from that instruction.” Id., at 158 (quot­
+ing §§ 1401(9), (26), (29)). 
+The IDEA's “primary vehicle for implementing these con­
+gressional goals is the `individualized educational program' 
+(IEP).” Honig v. Doe, 484 U. S. 305, 311 (1988). An IEP 
+“spells out” for each child with a qualifying disability “a per­
+sonalized plan to meet all of the child's `educational needs.' ” 
+Fry, 580 U. S., at 158 (quoting § 1414(d)(1)(A)(i)(II)(bb)). It 
+is developed through a collaborative process between a 
+child's parents, teachers, and school offcials. See id., at 158. 
+But since “parents and school representatives sometimes 
+cannot agree” on all aspects of an IEP, “the IDEA estab­
+lishes formal procedures for resolving disputes,” starting 
+with administrative review in a local or state educational 
+agency, followed by the availability of judicial review in state 
+or federal court. Id., at 159. 
+B 
+Petitioner A. J. T. “requires assistance with everyday tasks 
+like walking and toileting,” and suffers from seizures 
+throughout the day that create safety concerns and interfere 
+with her capacity to learn. 96 F. 4th 1062, 1064 (CA8 2024); 
+see App. 515. Although A. J. T.'s seizures are so frequent 
+in the morning that she “can't attend school before noon,” 
+1 The IDEA was previously called “the Education of the Handicapped 
+Act.” Fry v. Napoleon Community Schools, 580 U. S. 154, 160, n. 1 
+(2017). Congress renamed the law in 1990. See ibid. We refer to the 
+statute and its predecessor versions as the IDEA throughout this opinion. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+341 
+Opinion of the Court 
+she is “alert and able to learn” from noon until about 6 p.m. 
+96 F. 4th, at 1064.2 
+For the frst few years of her schooling, A. J. T.'s parents 
+and educators accommodated her condition by permitting 
+her to avoid activities before midday and to receive evening 
+instruction at home. See ibid. That changed in 2015 when 
+A. J. T., then ten years old, moved with her family to Minne­
+sota. A. J. T.'s new school district, Osseo Area Public 
+Schools, Independent School District No. 279, denied her par­
+ents' repeated requests to include evening instruction in her 
+IEP. See ibid. As a result, between 2015 and 2018, A. J. T. 
+received 4.25 hours of instruction each day, as compared to 
+the typical 6.5 hour school day for other students. Ibid.; No. 
+21–cv–1760 (D Minn., Feb. 1, 2023), App. to Pet. for Cert. 8a. 
+In 2018, as the district prepared for A. J. T. to enter middle 
+school, it proposed further cutting back the length of her 
+school day. 96 F. 4th, at 1064. A. J. T.'s parents again 
+requested that she receive evening instruction and school­
+ing hours comparable to her nondisabled peers. See ibid. 
+School administrators again denied those requests, and also 
+rejected proposals to maintain at least the same length in­
+structional day that A. J. T. had been receiving in elementary 
+school. Ibid. 
+“Realizing that an agreement was beyond reach,” A. J. T.'s 
+parents fled an IDEA complaint with the Minnesota Depart­
+ment of Education, alleging that the school's refusal to pro­
+vide afterhours instruction denied A. J. T. a free appropriate 
+public education. See id., at 1064–1065. After a fve day 
+evidentiary hearing, an Administrative Law Judge deter­
+mined that the district had violated the IDEA. Id., at 1065. 
+The judge ordered the school to provide several hundred 
+2 Because this case comes to us on review of respondents' motion for 
+summary judgment, we view the evidence in the light most favorable to 
+A. J. T. Tolan v. Cotton, 572 U. S. 650, 657 (2014) (per curiam). 
+Page Proof Pending Publication
+
+342 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+hours of compensatory education and “add certain services 
+to [A. J. T.'s] IEP, including at-home instruction from 4:30 
+p.m. to 6:00 p.m. each school day.” Ibid. 
+The school district sought judicial review, and a Federal 
+District Court affrmed. 2022 WL 4226097, *21 (Minn., 
+Sept. 13, 2022). The court agreed with the agency that 
+school offcials' “steadfas[t] refus[al]” to provide A. J. T. eve­
+ning instruction, and “shifting reasons” for doing so, were 
+based not on A. J. T.'s needs but on concerns of “[a]dministra­
+tive convenience”—namely, maintaining “the regular hours 
+of the faculty.” Id., at *1, *13. The Eighth Circuit subse­
+quently affrmed A. J. T.'s IDEA victory, agreeing with the 
+District Court that the evidence showed that the school dis­
+trict's “choice to prioritize its administrative concerns had a 
+negative impact on A. J. T.'s learning” and that she “would 
+have made more progress with evening instruction.” 96 F. 
+4th, at 1067. 
+C 
+A. J. T. and her parents then sued the school district and 
+the Osseo School Board (collectively, the District) in federal 
+court, alleging violations of Title II of the ADA and Section 
+504 of the Rehabilitation Act. See App. 28–29. They re­
+quested a permanent injunction, reimbursement for certain 
+costs, and compensatory damages. Ibid. 
+The trial court granted the District's motion for summary 
+judgment. It acknowledged that A. J. T. is a “qualifed indi­
+vidual with a disability” who “was denied the same length 
+school day as her nondisabled peers based on her disability.” 
+App. to Pet. for Cert. 20a. But the court held that A. J. T. 
+failed to state a prima facie case under Section 504 or the 
+ADA because she did not show that school offcials “acted 
+with bad faith or gross misjudgment.” Id., at 35a–36a. 
+The Eighth Circuit affrmed. 96 F. 4th 1058, 1060 (2024). 
+It explained that, under Circuit precedent, when “alleged 
+ADA and Section 504 violations are `based on educational 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 335 (2025) 
+343 
+Opinion of the Court 
+services for disabled children,' a school district's simple fail­
+ure to provide a reasonable accommodation is not enough to 
+trigger liability.” Id., at 1061 (quoting B. M. v. S. Callaway 
+R–II School Dist., 732 F. 3d 882, 887 (CA8 2013)). Rather, 
+“a plaintiff must prove that school offcials acted with `either 
+bad faith or gross misjudgment,' which requires ` “something 
+more” than mere non-compliance with the applicable federal 
+statutes.' ” 96 F. 4th, at 1061 (frst quoting Monahan v. Ne­
+braska, 687 F. 2d 1164, 1171 (CA8 1982); then quoting B. M., 
+732 F. 3d, at 887; citation omitted). The panel explained 
+that, while “A. J. T. may have established a genuine dispute 
+about whether the district was negligent or even deliber­
+ately indifferent,” under the Eighth Circuit's controlling 
+standard, “that's just not enough.” 96 F. 4th, at 1061. 
+Since A. J. T. “failed to identify conduct” rising to the level 
+of bad faith or gross misjudgment, the court said it was “con­
+strained to hold that summary judgment was proper.” Ibid. 
+The panel itself, however, went on to question why the 
+Eighth Circuit imposes “such a high bar for claims based on 
+educational services,” when it “require[s] much less in other 
+disability-discrimination contexts.” Ibid., n. 2 (citing cases 
+requiring “no intent” for a “failure-to-accommodate claim” 
+and “deliberate indifference” for damages). “The answer,” 
+the panel said, “is a lesson in why `[w]e do not . . . add provi­
+sions to . . . federal statute[s].' ” Ibid. (quoting Alabama 
+v. North Carolina, 560 U. S. 330, 352 (2010); alterations in 
+original). The Circuit's “bad faith or gross misjudgment 
+rule,” the panel opined, added “without any anchor in statu­
+tory text . . . a judicial gloss on Section 504,” based on “spec­
+ulat[ion] that Congress intended the IDEA's predecessor to 
+limit Section 504's protections.” 96 F. 4th, at 1062, n. 2 (cit­
+ing Monahan, 687 F. 2d, at 1170–1171). The panel observed 
+that this rule had “spread like wildfre” in the lower courts, 
+although it “ha[d] been questioned” along the way. 96 F. 
+4th, at 1062, n. 2. And since the rule “remain[ed] the law” 
+
+344 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+in the Eighth Circuit, the panel was bound to follow it. Ibid. 
+A. J. T.'s petition for rehearing en banc was denied, with 
+three judges dissenting. App. to Pet. for Cert. 44a–45a. 
+We granted certiorari to resolve the disagreement in the 
+Courts of Appeals over whether schoolchildren bringing 
+ADA and Rehabilitation Act claims relating to their educa­
+tion must make this heightened showing of “bad faith or 
+gross misjudgment.” 604 U. S. 1096 (2025).3 
+II 
+A 
+Outside the context of elementary and secondary educa­
+tion, the Eighth Circuit—in line with the general approach 
+of the courts of appeals—permits plaintiffs to establish a 
+statutory violation and obtain injunctive relief under the 
+ADA and Rehabilitation Act without proving intent to dis­
+criminate. See, e. g., Hall v. Higgins, 77 F. 4th 1171, 1180– 
+1181 (CA8 2023); Midgett v. Tri-County Metropolitan Transp. 
+Dist. of Ore., 254 F. 3d 846, 851 (CA9 2001). To obtain com­
+pensatory damages, however, courts of appeals generally 
+agree that a plaintiff must show intentional discrimination. 
+See Hall, 77 F. 4th, at 1181; see also S. H. v. Lower Merion 
+School Dist., 729 F. 3d 248, 262 (CA3 2013) (collecting cases). 
+On that score, “a majority” of the Courts of Appeals to have 
+weighed in on the question—including the Eighth Circuit— 
+fnd the requirement to show “intentional discrimination” 
+satisfed by proof that the defendant acted with “deliberate 
+indifference.” Id., at 262–263.4 
+That standard “does not 
+3 Compare I. Z. M. v. Rosemount–Apple Valley–Eagan Public Schools, 
+863 F. 3d 966, 973, n. 6 (CA8 2017) (collecting cases applying this stand­
+ard to “alleged discrimination regard[ing] the education of disabled stud­
+ents”), with, e. g., D. E. v. Central Dauphin School Dist., 765 F. 3d 260, 
+269 (CA3 2014) (applying deliberate indifference standard for compensatory 
+damages). 
+4 Lower courts appear to have derived this standard from our caselaw 
+applying Title IX (which, like the Rehabilitation Act and ADA, was “mod­
+eled after Title VI”). Gebser v. Lago Vista Independent School Dist., 524 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+345 
+Opinion of the Court 
+require a showing of personal ill will or animosity toward 
+the disabled person.” Meagley v. Little Rock, 639 F. 3d 384, 
+389 (CA8 2011). Rather, to show deliberate indifference, it 
+is enough that a plaintiff prove the defendant disregarded a 
+“strong likelihood” that the challenged action would “result 
+in a violation of federally protected rights.” Ibid. 
+We hold today that ADA and Rehabilitation Act claims 
+based on educational services should be subject to the same 
+standards that apply in other disability discrimination con­
+texts. Nothing in the text of Title II of the ADA or Section 
+504 of the Rehabilitation Act suggests that such claims 
+should be subject to a distinct, more demanding analysis. 
+The substantive provisions of both Title II and Section 504, 
+by their plain terms, apply to “qualifed individual[s]” with 
+disabilities. 29 U. S. C. § 794(a); 42 U. S. C. § 12132. There 
+is no textual indication that the protections of either disabil­
+ity discrimination statute apply with lesser force to certain 
+qualifed individuals bringing certain kinds of claims. 
+Nor do the applicable remedial provisions suggest any 
+such distinction. Both Title II and Section 504 make the 
+“remedies, procedures, and rights” provided therein avail­
+able to “any person.” 29 U. S. C. § 794a(a)(2) (“any person 
+aggrieved”); 42 U. S. C. § 12133 (“any person alleging dis­
+crimination”). That language is expansive and unqualifed, 
+confrming applicability to every such person, “without dis­
+tinction or limitation.” SAS Institute Inc. v. Iancu, 584 
+U. S. 357, 363 (2018) (quoting Oxford English Dictionary (3d 
+ed., Mar. 2016)). 
+How, then, did some courts of appeals come to apply a 
+heightened intent standard to ADA and Rehabilitation Act 
+claims concerning educational opportunities? The bad faith 
+or gross misjudgment rule traces to the Eighth Circuit's 
+opinion in Monahan v. Nebraska, 687 F. 2d 1164. See 96 F. 
+4th, at 1061, n. 2. There the Eighth Circuit—in a case in-
+U. S. 274, 286, 290 (1998); see also Brief for United States as Amicus Cu­
+riae 15–20. 
+Page Proof Pending Publication
+
+346 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+volving an IDEA claim and a Rehabilitation Act claim alleg­
+ing “improper educational placement”—explained its view 
+that “in order to show a violation of the Rehabilitation Act, 
+something more than a mere failure to provide” the free ap­
+propriate public education “required by [the IDEA] must be 
+shown.” Monahan, 687 F. 2d, at 1169–1170. That “some­
+thing more,” the Eighth Circuit said, is “bad faith or gross 
+misjudgment,” which in its view “should be shown before a 
+§ 504 violation can be made out, at least in the context of 
+education of handicapped children.” Id., at 1170–1171.5 
+The Eighth Circuit explained that the bad faith or gross 
+misjudgment “standard of liability” was consistent with its 
+“duty to harmonize the Rehabilitation Act and the [IDEA] 
+to the fullest extent possible, and to give each of these stat­
+utes the full play intended by Congress.” Id., at 1171. The 
+court also concluded that this standard “refect[ed] . . . a 
+proper balance between the rights of handicapped children, 
+the responsibilities of state educational offcials, and the com­
+petence of courts to make judgments in technical felds.” 
+Ibid. (“So long as the state offcials involved [did not] depart 
+grossly from accepted standards among educational profes­
+sionals, we cannot believe that Congress intended to create 
+liability under § 504.”). 
+B 
+The Monahan court was not alone in its instinct to try to 
+“harmonize” the IDEA's specifc guarantee of a free appro­
+priate public education, on the one hand, with more broadly 
+applicable antidiscrimination laws, on the other. Indeed, 
+just two years later in Smith v. Robinson, 468 U. S. 992 
+(1984), this Court applied virtually identical reasoning to 
+hold that the IDEA was “ `the exclusive avenue' through 
+which a child with a disability (or his parents) could chal­
+5 The Eighth Circuit subsequently extended this standard to education 
+related claims brought under the ADA. See Hoekstra v. Independent 
+School Dist. No. 283, 103 F. 3d 624, 626–627 (1996). 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+347 
+Opinion of the Court 
+lenge the adequacy of his education.” Fry, 580 U. S., at 160 
+(quoting Smith, 468 U. S., at 1009). 
+The plaintiffs in Smith sued a school district under the 
+IDEA “to secure a `free appropriate public education' ” for 
+their handicapped child, id., at 994, and “appended” to their 
+complaint “virtually identical claims . . . under § 504 of the 
+Rehabilitation Act,” Fry, 580 U. S., at 160 (internal quotation 
+marks omitted). In “consider[ing] the interaction between” 
+the two statutes, ibid., the Smith Court looked to “the com­
+prehensive nature of the procedures and guarantees” set out 
+in the IDEA, which the Court thought evinced “Congress' 
+express efforts to place on local and state educational agen­
+cies the primary responsibility for developing a plan to ac­
+commodate the needs of each individual handicapped child,” 
+468 U. S., at 1011; see id., at 1016. In light of this “compre­
+hensive scheme,” this Court found it “diffcult to believe that 
+Congress also meant to leave undisturbed the ability of a 
+handicapped child to go directly to court” with a Rehabilita­
+tion Act claim. Id., at 1009, 1011, 1016. Such a result, the 
+Court said, would effectively permit a plaintiff “to circum­
+vent” and “render superfuous most of the detailed proce­
+dural protections outlined” in the IDEA. Id., at 1011–1012. 
+And “more important, it would also run counter to Congress' 
+view that the needs of handicapped children are best accom­
+modated” through the IDEA's “carefully tailored scheme.” 
+Id., at 1012. 
+Congress apparently did not agree. Within two years, it 
+enacted a new provision of the IDEA, “overturn[ing]” Smith 
+and “ `reaffrm[ing] the viability' of federal statutes like the 
+ADA or Rehabilitation Act `as separate vehicles,' no less in­
+tegral than the IDEA, `for ensuring the rights of handi­
+capped children.' ” Fry, 580 U. S., at 161 (quoting H. R. Rep. 
+No. 99–296, pp. 4, 6 (1985)). Now codifed at 20 U. S. C. 
+§ 1415(l), that provision states in relevant part: 
+“Nothing in [the IDEA] shall be construed to restrict 
+or limit the rights, procedures, and remedies available 
+Page Proof Pending Publication
+
+348 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+under the Constitution, the [ADA], title V of the Reha­
+bilitation Act [including § 504], or other Federal laws 
+protecting the rights of children with disabilities, except 
+that before the fling of a civil action under such laws 
+seeking relief that is also available under [the IDEA], 
+the [IDEA's administrative procedures shall frst be 
+exhausted].” 
+The plain text of § 1415(l) accordingly “makes clear that 
+nothing in the IDEA `restrict[s] or limit[s] the rights [or] 
+remedies' that other federal laws, including antidiscrimina­
+tion statutes, confer on children with disabilities.” Fry, 580 
+U. S., at 157 (quoting 20 U. S. C. § 1415(l)). And that explicit 
+edict applies “even” to a plaintiff who—“as in Smith itself”— 
+seeks relief “that is also available under” the IDEA. Fry, 
+580 U. S., at 161. 
+In imposing a higher “bar for claims based on educational 
+services” as compared to “other disability-discrimination 
+contexts,” however, the Eighth Circuit in Monahan effec­
+tively read the IDEA to implicitly limit the ability of chil­
+dren with disabilities to vindicate their independent ADA 
+and Rehabilitation Act rights. 96 F. 4th, at 1061–1062, n. 2 
+(recognizing that Congress “rejected Monahan's premise” in 
+enacting § 1415(l)). And the court thereby made it more dif­
+fcult for disabled schoolchildren to secure the statutory rem­
+edies provided by Congress in Title II and Section 504. 
+That approach is irreconcilable with the unambiguous direc­
+tive of § 1415(l).6 
+The District maintains that Monahan's rule survives 
+§ 1415(l). That is so, it says, because the Eighth Circuit de­
+rived the bad faith or gross misjudgment standard based 
+solely on Section 504's text, rather than anything to do with 
+6 Because we address only the application of the heightened bad faith 
+or gross misjudgment standard of intent to education related ADA and 
+Rehabilitation Act claims, our opinion should not be read to speak to any 
+other showing that a plaintiff must make in order to prove a violation of 
+the respective requirements of those statutes or the IDEA. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+349 
+Opinion of the Court 
+the IDEA. Brief for Respondents 24–25. The District in­
+sists that the court's statements that its chosen standard 
+best harmonized and gave full play to the two statutes, while 
+also balancing the interests of disabled schoolchildren and 
+state educational offcials, were mere observations of “the 
+salutary policy benefts” of an analysis otherwise driven by 
+the text of Section 504. Id., at 25. And the court's re­
+peated references to education of “handicapped children,” it 
+says, were simply descriptions of the “fact pattern at 
+hand”—not suggestions that the bad faith or gross misjudg­
+ment standard should apply only in that context. Id., at 24. 
+The District's reading of Monahan is diffcult to square 
+with what that opinion said. The Monahan court's discus­
+sion of Section 504 was inextricably bound with concomitant 
+references to the IDEA. And its reasoning, at bottom, was 
+grounded—much like this Court's in Smith—in an effort to 
+strike what it believed was the appropriate balance between 
+the two statutes. See Monahan, 687 F. 2d, at 1170–1171. 
+The District's take on Monahan is simply neither the most 
+natural nor the most persuasive one. Besides, it conficts 
+with the Eighth Circuit's own interpretation of its precedent, 
+including in the case before us. See 96 F. 4th, at 1062, n. 2 
+(noting that Monahan's rule was rooted in “specula[tion] that 
+Congress intended the IDEA's predecessor to limit Section 
+504's protections”); see, e. g., I. Z. M. v. Rosemount–Apple 
+Valley–Eagan Public Schools, 863 F. 3d 966, 973 (1996); 
+Hoekstra v. Independent School Dist. No. 283, 103 F. 3d 624, 
+627 (1996) (“In applying a bad faith/gross misjudgment 
+standard to § 504, the Monahan court reasoned that such a 
+standard harmonizes the [IDEA] and § 504.”). So too with 
+the understandings of other Courts of Appeals. See, e. g., 
+Knox County v. M. Q., 62 F. 4th 978, 1002 (CA6 2023). 
+C 
+Perhaps sensing the likely fate of Monahan's asymmetric 
+rule, the District no longer seeks to defend it. See Tr. of 
+Page Proof Pending Publication
+
+350 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Opinion of the Court 
+Oral Arg. 88 (stating that “the parties are in radical agree­
+ment” on the question “whether you have a different stand­
+ard in the educational context” (counsel for respondents)); 
+id., at 78 (agreeing “there's no two-tier test” (same)). The 
+District now contends instead that bad faith or gross mis­
+judgment is “the correct standard across the board” for 
+injunctive relief and damages, “both in schools and out.” 
+Brief for Respondents 2 (emphasis added). The “infrmity,” 
+the District says, is not “with Monahan's original interpre­
+tation,” but with “the logic of” later cases that imposed 
+lower intent standards in other disability discrimination con­
+texts. Id., at 24. 
+“As a general rule,” however, “we do not decide issues” 
+that were not “resolved below” and are “outside the ques­
+tio[n] presented by the petition for certiorari.” Glover v. 
+United States, 531 U. S. 198, 205 (2001). The District's posi­
+tion fails on both counts. A. J. T. asked us to review the 
+“uniquely stringent `bad faith or gross misjudgment' stand­
+ard,” which she characterized throughout her petition as an 
+“arbitrar[y] depart[ure] from the more lenient standards that 
+all courts—including the Eighth Circuit—apply to ADA and 
+Rehabilitation Act claims brought by plaintiffs outside the 
+school setting.” Pet. for Cert. i; see also, e. g., id., at 32. 
+For its part, the District never suggested at the certiorari 
+stage that it thought this case was about anything other than 
+the two-tiered approach set forth in Monahan. 
+We agree with A. J. T. that “it would be unfair at this 
+point” to allow the District “to switch gears and seek a rul­
+ing from us that the standard should be” bad faith or gross 
+misjudgment “across the board.” Norfolk Southern R. Co. 
+v. Sorrell, 549 U. S. 158, 165 (2007); see Tr. of Oral Arg. 101. 
+We will not entertain the District's invitation to inject into 
+this case signifcant issues that have not been fully pre­
+sented. See South Central Bell Telephone Co. v. Alabama, 
+526 U. S. 160, 171 (1999); Sorrell, 549 U. S., at 165. The 
+question before us “is a narrow one, and we see no need to 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+351 
+Thomas, J., concurring 
+do more than answer that question in today's decision.” Id., 
+at 171−172. 
+*
+*
+* 
+That our decision is narrow does not diminish its import 
+for A. J. T. and “a great many children with disabilities and 
+their parents.” Luna Perez v. Sturgis Public Schools, 598 
+U. S. 142, 146 (2023). Together they face daunting chal­
+lenges on a daily basis. We hold today that those challenges 
+do not include having to satisfy a more stringent standard of 
+proof than other plaintiffs to establish discrimination under 
+Title II of the ADA and Section 504 of the Rehabilitation 
+Act. 
+The judgment of the United States Court of Appeals for 
+the Eighth Circuit is vacated, and the case is remanded for 
+further proceedings consistent with this opinion. 
+It is so ordered. 
+Justice Thomas, with whom Justice Kavanaugh joins, 
+concurring. 
+The Court's opinion correctly resolves the question pre­
+sented. I write separately to note that in an appropriate 
+case, I would be willing to consider the additional issues 
+raised by the respondents (collectively, the District) at the 
+merits stage. Although those issues were not properly be­
+fore us in this case, they are important and merit our atten­
+tion in the future. 
+We granted certiorari to decide whether Title II of the 
+Americans with Disabilities Act and Section 504 of the Reha­
+bilitation Act require disabled schoolchildren to satisfy a 
+“uniquely stringent” standard when seeking relief under 
+those statutes. Pet. for Cert. i. In other words, we took 
+the case to decide whether Title II and Section 504 permit 
+courts to subject one subset of plaintiffs to a higher legal 
+standard than other plaintiffs, simply because their claims 
+arise in the school context. At the merits stage, both sides 
+Page Proof Pending Publication
+
+352 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Thomas, J., concurring 
+agreed that the answer must be “no.” Brief for Petitioner 
+2–3; Brief for Respondents 2; see also Tr. of Oral Arg. 78. 
+The Court today agrees with the parties, holding that school-
+related claims are subject to the same legal standards as 
+other claims. Ante, at 345. 
+At the merits stage, the District asked us to go beyond 
+the question presented. Specifcally, it urged us to clarify 
+the particular standards that should apply in Title II and 
+Section 504 litigation. In most courts of appeals, the opera­
+tive standard for discrimination claims under these statutes 
+turns on the kind of relief sought. To establish a violation 
+or to obtain injunctive relief, the plaintiff need not prove 
+intentional discrimination. E. g., Hall v. Higgins, 77 F. 4th 
+1171, 1180–1181 (CA8 2023); Midgett v. Tri-County Metro­
+politan Transp. Dist. of Ore., 254 F. 3d 846, 851 (CA9 2001). 
+But, to obtain compensatory damages, courts generally 
+agree that a plaintiff must prove that the defendant was at 
+least “deliberately indifferent” to federally protected rights. 
+E. g., Hall, 77 F. 4th, at 1180–1181; Silberman v. Miami Dade 
+Transit, 927 F. 3d 1123, 1134 (CA11 2019). The District 
+challenges the no-intent standard, arguing that intent to dis­
+criminate should be required to establish a violation or to 
+obtain any kind of relief. It presses its theory on both stat­
+utory and constitutional grounds. 
+To start, the District argues that the plain text of the un­
+derlying statutes prohibit only intentional discrimination. 
+Section 504 states that individuals with disabilities shall not 
+“be excluded from the participation in, be denied the benefts 
+of, or be subjected to discrimination” under any federally 
+funded “program or activity” “solely by reason of her or his 
+disability.” 29 U. S. C. § 794(a). Title II provides that indi­
+viduals with disabilities shall not, “by reason of such disabil­
+ity, be excluded from participation in or be denied the bene­
+fts of the services, programs, or activities of a public entity, 
+or be subjected to discrimination by any such entity.” 42 
+U. S. C. § 12132. The District asserts that this statutory 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+353 
+Thomas, J., concurring 
+language—which prohibits “discrimination” “by reason of” 
+disability—requires a showing of intent to discriminate be­
+fore a violation can be established. 
+Relatedly, the District contends that the underlying stat­
+utes do not permit one standard for damages and another 
+standard for injunctive relief. Title II incorporates the 
+“remedies, procedures, and rights set forth in [Section 504].” 
+§ 12133. And, Section 504, in turn, incorporates the “reme­
+dies, procedures, and rights set forth in title VI” of the Civil 
+Rights Act. 29 U. S. C. § 794a(a)(2). Title VI “prohibits 
+only intentional discrimination.” Alexander v. Sandoval, 
+532 U. S. 275, 280 (2001); accord, Students for Fair Admis­
+sions, Inc. v. President and Fellows of Harvard College, 600 
+U. S. 181, 288–290 (2023) (Gorsuch, J., concurring). This 
+Court has held that private individuals thus may “not re­
+cover compensatory damages under Title VI” unless they 
+prove “intentional discrimination.” Sandoval, 532 U. S., at 
+282–283. The District argues that if the incorporation of 
+Title VI's rights and remedies requires intent for an award 
+of damages, it should equally require intent for an award of 
+injunctive relief. I share the District's skepticism that the 
+same statutory language can mean two different things de­
+pending on the relief sought. 
+The District also raises a constitutional objection, arguing 
+that the Constitution compels a plaintiff to prove intent to 
+discriminate before a court may fnd a violation of Title II 
+or Section 504 or award any kind of relief. See also Brief 
+for State of Tennessee et al. as Amici Curiae 17–23 (arguing 
+that constitutional considerations “weigh against Petitioner's 
+no-intent reading” (boldface deleted)). Here too, I think the 
+District may have a point. 
+Congress enacted Section 504 pursuant to the so-called 
+Spending Clause. “We have repeatedly characterized . . . 
+Spending Clause legislation as `much in the nature of a con­
+tract: in return for federal funds, the [recipients] agree to 
+comply with federally imposed conditions.' ” Barnes v. Gor­
+Page Proof Pending Publication
+
+354 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Thomas, J., concurring 
+man, 536 U. S. 181, 186 (2002). “Just as a valid contract re­
+quires offer and acceptance of its terms, `[t]he legitimacy of 
+Congress' power to legislate under the spending power . . . 
+rests on whether the [recipient] voluntarily and knowingly 
+accepts the terms of the “contract.” ' ” Ibid. Thus, this 
+Court has held that “if Congress intends to impose a condi­
+tion on the grant of federal moneys, it must do so unambigu­
+ously.” Pennhurst State School and Hospital v. Halder­
+man, 451 U. S. 1, 17 (1981). But, the District argues, 
+Section 504 unambiguously covers only intentional discrimi­
+nation; nothing in the text conveys Congress's intent to im­
+pose liability on schools for unintentional discrimination. 
+The District tells us that a no-intent violation of Title II 
+is even more dubious. As an initial matter, the District ob­
+serves, it is unclear what constitutional authority Congress 
+has to require a public school, by way of an injunction, to 
+take an affrmative action such as providing additional in­
+struction to a student. Congress enacted the ADA under its 
+“power to enforce the fourteenth amendment and to regulate 
+commerce.” 42 U. S. C. § 12101(b)(4). But, the Commerce 
+Clause does not give Congress sweeping power to protect 
+“the learning environment” in schools. United States v. 
+Lopez, 514 U. S. 549, 564 (1995). And, the Fourteenth 
+Amendment does “not requir[e]” schools to “make special ac­
+commodations for the disabled.” Board of Trustees of Univ. 
+of Ala. v. Garrett, 531 U. S. 356, 367 (2001). Instead, it pro­
+hibits only conduct that lacks a rational basis, such as deci­
+sions motivated by a “ `bare . . . desire to harm.' ” Cleburne 
+v. Cleburne Living Center, Inc., 473 U. S. 432, 447 (1985). 
+The District contends that Title II, which targets “State 
+[and] local government[s],” § 12131(1)(A), cannot be read to 
+“ `compe[l]' ” States to “ `expend . . . state funds' ” to accom­
+modate people with disabilities “in accordance with federal 
+standards.” See Murphy v. National Collegiate Athletic 
+Assn., 584 U. S. 453, 463, 476 (2018). After all, the Constitu­
+tion “has never been understood to confer upon Congress the 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 335 (2025) 
+355 
+Sotomayor, J., concurring 
+ability to require the States to govern according to Congress' 
+instructions.” New York v. United States, 505 U. S. 144, 162 
+(1992). In the District's view, requiring a plaintiff to prove 
+intent to discriminate before fnding a violation or award­
+ing an injunction is necessary to mitigate these anti-
+commandeering concerns. 
+I express no defnitive views on the additional issues 
+raised by the District here. And, I agree with the Court's 
+decision to answer only the question presented today. See 
+this Court's Rule 14.1(a). But, in a case where the District's 
+additional issues are properly before us, I would be willing 
+to address them. Whether federal courts are applying the 
+correct legal standard under two widely utilized federal stat­
+utes is an issue of national importance, and the District has 
+raised serious arguments that the prevailing standards are 
+incorrect. 
+Of course, this Court's resolution of these issues could have 
+signifcant ramifcations for both disability law and discrimi­
+nation law more generally. See Reply for Petitioner 24 (ex­
+plaining that adopting the District's position would “cause a 
+sea change in disability law”). That these issues are conse­
+quential is all the more reason to wait for a case in which 
+they are squarely before us and we have the beneft of adver­
+sarial briefng. Until then, I hope lower courts will care­
+fully consider whether the existing standards comport with 
+the Constitution and the underlying statutory text. 
+Justice Sotomayor, with whom Justice Jackson joins, 
+concurring. 
+I join in full the Court's opinion, which holds that ADA 
+and Rehabilitation Act claims regarding educational services 
+are subject to the same standards applied in other disability 
+discrimination contexts. In reaching that conclusion, the 
+Court rightly declines to entertain respondents' newly raised 
+argument that “bad faith or gross misjudgment” is the cor­
+rect standard for all disability discrimination claims under 
+
+Page Proof Pending Publication
+356 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Sotomayor, J., concurring 
+Title II and Section 504 of those Acts. See ante, at 349–351. 
+I write separately, however, to highlight a foundational faw 
+in respondents' theory. Respondents contend that the “bad 
+faith or gross misjudgment” standard is appropriate because 
+the statutes require a showing of “improper purpose” or 
+“ `animus.' ” Brief for Respondents 11–12, 16–17. That is 
+incorrect. The statutes' text and history, as well as this 
+Court's precedent, foreclose any such purpose requirement. 
+Recall that Title II of the ADA provides that “no qualifed 
+individual with a disability shall, by reason of such disability, 
+be excluded from participation in or be denied the benefts 
+of the services, programs, or activities of a public entity, or 
+be subjected to discrimination by any such entity.” 42 
+U. S. C. § 12132 (emphasis added). The Rehabilitation Act's 
+similarly worded prohibition uses the same “by reason of” 
+language, with the modifer “solely.” 29 U. S. C. § 794(a).* 
+That statutory language contains no reference to improper 
+purpose. To the contrary, the phrase “by reason of” re­
+quires no more than a causal link between the individual's 
+disability and her “exclu[sion] from” participating in or re­
+ceiving the benefts of a covered service, program, or activ­
+ity. Ibid.; 42 U. S. C. § 12132. That is the ordinary meaning 
+of the phrase “by reason of.” See Merriam-Webster's Dic­
+tionary (11th ed. 2025), https://www.merriam-webster.com/ 
+dictionary/by%20reason%20of (defning “by reason of” as 
+“because of: due to”); Merriam-Webster's Collegiate Diction­
+ary 101 (10th ed. 1996) (defning “because of” as “by reason 
+of”); Webster's Third New International Dictionary 194 
+(1971) (same). It is also the reading this Court has afforded 
+*Section 504 of the Rehabilitation Act provides: “No otherwise qualifed 
+individual with a disability in the United States . . . shall, solely by reason 
+of her or his disability, be excluded from the participation in, be denied 
+the benefts of, or be subjected to discrimination under any program or 
+activity receiving Federal fnancial assistance or under any program or 
+activity conducted by any Executive agency or by the United States 
+Postal Service.” 29 U. S. C. § 794(a). 
+
+Cite as: 605 U. S. 335 (2025) 
+357 
+Sotomayor, J., concurring 
+the statutory phrase on numerous occasions. See, e. g., 
+Husted v. A. Philip Randolph Institute, 584 U. S. 756, 769 
+(2018) (“The phrase `by reason of' denotes some form of cau­
+sation”); University of Tex. Southwestern Medical Center v. 
+Nassar, 570 U. S. 338, 350 (2013) (describing “ `by reason of' ” 
+as another way to say “ `because,' ” which 
+indicates a 
+“ `causal relationship' ”). 
+Persons with disabilities can, of course, lose access to bene­
+fts and services “by reason of,” or “because of,” their disabil­
+ities absent any invidious animus or purpose. Stairs may 
+prevent a wheelchair-bound person from accessing a public 
+space; the lack of auxiliary aids may prevent a deaf person 
+from accessing medical treatment at a public hospital; and 
+braille-free ballots may preclude a blind person from voting, 
+all without animus on the part of the city planner, the hospi­
+tal staff, or the ballot designer. See, e. g., Tennessee v. Lane, 
+541 U. S. 509, 514 (2004) (Title II claim brought by paraplegic 
+individual who was forced to “craw[l] up two fights of stairs 
+to get to [a] courtroom”); Liese v. Indian River Cty. Hospital 
+Dist., 701 F. 3d 334, 338, 340–341 (CA11 2012) (Section 504 
+claim brought by deaf individual against hospital for failure 
+to provide adequate methods to communicate with doctors 
+before they performed a major surgery); National Federa­
+tion of Blind v. Lamone, 813 F. 3d 494 (CA4 2016) (Title II 
+and Section 504 claims regarding access for blind people to 
+an absentee voting system). The statutes' plain text thus 
+reaches cases involving a failure to accommodate, even 
+where no ill will or animus toward people with disabilities 
+is present. 
+There can be no question, too, that the statutes impose an 
+affrmative obligation on covered entities to provide reason­
+able accommodations, undercutting any improper-purpose 
+requirement. Title II of the ADA defnes a “ `qualifed indi­
+vidual with a disability' ” to mean an individual who, with 
+“reasonable modifcations to rules, policies, or practices, the 
+removal of architectural, communication, or transportation 
+Page Proof Pending Publication
+
+358 
+A. J. T. v. OSSEO AREA SCHOOLS, INDEPENDENT 
+SCHOOL DIST. NO. 279 
+Sotomayor, J., concurring 
+barriers, or the provision of auxiliary aids and services,” is 
+able to “mee[t] the essential eligibility requirements for the 
+receipt of services or the participation in programs or activi­
+ties provided by a public entity.” 42 U. S. C. § 12131(2) (em­
+phasis added). A separate provision also contemplates that 
+“a public entity under [Title] II” must provide “reasonable 
+accommodation[s],” subject to certain exceptions. § 12201(h). 
+For its part, Section 504 of the Rehabilitation Act makes 
+clear that accommodations, such as architectural alterations, 
+may be required “for the purpose of assuring program acces­
+sibility” if alternative accommodations are not available. 29 
+U. S. C. § 794(c). These affrmative obligations underscore 
+that the statutes do not require improper purpose to prove 
+liability. Entities can violate the Acts, for instance, by fail­
+ing to install a wheelchair-accessible ramp, without any dis­
+criminatory animus. 
+The statutes' use of the passive voice (“no qualifed indi­
+vidual with a disability shall, by reason of such disability, be 
+excluded . . . ”) only reinforces that conclusion. 42 U. S. C. 
+§ 12132; see 29 U. S. C. § 794(a). As this Court has recog­
+nized, “Congress's use of the passive voice” often indicates a 
+“focu[s] on an event that occurs without respect to a specifc 
+actor,” and therefore without respect to any actor's purpose. 
+Dean v. United States, 556 U. S. 568, 572 (2009). 
+If there were any remaining doubt, the history and pur­
+pose of the statutes further confrm that Congress never in­
+tended to impose an ulterior-purpose requirement. As this 
+Court recognized in Alexander v. Choate, 469 U. S. 287 
+(1985), when Congress enacted the Rehabilitation Act, it 
+“perceived” “[d]iscrimination against the handicapped” as 
+“most often the product, not of invidious animus, but rather 
+of thoughtlessness and indifference—of benign neglect.” 
+Id., at 295; see also id., at 296 (collecting statements by legis­
+lators describing the Act as a response to “ `neglect' ” of the 
+handicapped). As a result, “much of the conduct that Con­
+gress sought to alter in passing the Rehabilitation Act would 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 335 (2025) 
+359 
+Sotomayor, J., concurring 
+be diffcult if not impossible to reach were the Act construed 
+to proscribe only conduct fueled by a discriminatory intent.” 
+Id., at 296–297. That observation applies with equal force 
+to Title II of the ADA, which Congress modeled on Section 
+504. Cf. Fry v. Napoleon Community Schools, 580 U. S. 
+154, 159 (2017) (noting the two statutes impose the “same 
+prohibition” on covered entities). 
+Consider one of the paradigmatic applications of these two 
+laws: ensuring the “elimination of architectural barriers” to 
+provide access for individuals with disabilities. See Alexan­
+der, 469 U. S., at 297 (describing this as “one of the central 
+aims of the [Rehabilitation] Act”). Architectural barriers 
+like stairs are rarely (if ever) “erected with the aim or intent 
+of excluding the handicapped.” Ibid. Yet if respondents' 
+novel rule were the law, ADA and Rehabilitation Act claim­
+ants would have to show that a building's architect acted 
+with “animus” toward those with disabilities in sketching out 
+her designs. Brief for Respondents 16. It is hard to imag­
+ine any architectural-barrier claim succeeding under such a 
+standard. Indeed, the total universe of viable claims of that 
+nature may well be a null set. Respondents' proposed 
+improper-purpose requirement would thus eviscerate the 
+core of both the ADA and Rehabilitation Act, leaving mil­
+lions of our fellow citizens without the protections Con­
+gress intended. 
+*
+*
+* 
+In short, there is good reason no court of appeals has 
+adopted respondents' eleventh-hour argument. Congress 
+was not naive to the insidious nature of disability discrimina­
+tion when it enacted the ADA and Rehabilitation Act. It 
+understood full well that discrimination against those with 
+disabilities derives principally from “apathetic attitudes 
+rather than affrmative animus.” Alexander, 469 U. S., at 
+296. The resulting laws refect that understanding, and it is 
+not the Judiciary's prerogative to override Congress's pol­
+icy judgments. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 340, line 7: “support” is changed to “supportive” 
+p. 340, line 15: “§ 1414(d)(1)(B)” is changed to “§ 1414(d)(1)(A)(i)(II)(bb)” 
+p. 358, line 3: “the” is inserted before “participation” 
diff --git a/corpus/law/text/1a2073f2c6100e95.txt b/corpus/law/text/1a2073f2c6100e95.txt
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@@ -0,0 +1,78 @@
+Corrigendum: Accessing care services after sexual violence: A systematic review exploring experiences of women in South Africa
+
+No abstract available.
+
+http://www.curationis.org.za
+Open Access
+Curationis 
+ISSN: (Online) 2223-6279, (Print) 0379-8577
+Page 1 of 1
+Correction
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Authors:
+Moreoagae B. Randa1 
+Julie McGarry2 
+Sarah Griffiths3 
+Kathryn Hinsliff-Smith3 
+Affiliations:
+1Department of Public 
+Health, Faculty of Health 
+Care Sciences, Sefako 
+Makgatho Health Sciences 
+University, Pretoria, 
+South Africa
+2Health Sciences School, 
+University of Sheffield and 
+Sheffield Teaching Hospitals 
+NHS Foundation Trust, 
+Sheffield, United Kingdom
+3Leicester School of Nursing 
+and Midwifery, Faculty of 
+Health and Life Sciences, De 
+Montfort University, 
+Leicester, United Kingdom
+Corresponding author:
+Moreoagae Randa, 
+moreoagae@gmail.com
+Dates:
+Published: 10 Jan. 2024
+How to cite this correction:
+Randa, M.B., McGarry, J., 
+Griffiths, S. & Hinsliff-Smith, 
+K., 2024, ‘Corrigendum: 
+Accessing care services after 
+sexual violence: A systematic 
+review exploring experiences 
+of women in South Africa’, 
+Curationis 47(1), a2576. 
+https://doi.org/10.4102/
+curationis.v47i1.2576
+Copyright:
+© 2024. The Authors. 
+Licensee: AOSIS. This work 
+is licensed under the 
+Creative Commons 
+Attribution License.
+In the published article, Randa, M.B., McGarry, J., Griffiths, S. & Hinsliff-Smith, K., 2023, 
+‘Accessing care services after sexual violence: A systematic review exploring experiences of 
+women in South Africa’, Curationis 46(1), a2405. https://doi.org/10.4102/curationis.v46i1.2405. 
+The authors neglected to include the funder South African Medical Research Council, SIR:058 in 
+the funding statement.
+The authors apologise for this error. The correction does not change the study’s findings of 
+significance or overall interpretation of the study’s results or the scientific conclusions of the 
+article in any way.
+Corrigendum: Accessing care services after sexual 
+violence: A systematic review exploring 
+experiences of women in South Africa
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Note: DOI of original article published https://doi.org/10.4102/curationis.v47i1.2405.
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@@ -0,0 +1,40 @@
+Retraction Note: Sustainable development economy and the development of green economy in the European Union
+
+Mentes Energy, Sustainability and Society           (2024) 14:20  
+https://doi.org/10.1186/s13705-024-00453-4
+RETRACTION NOTE
+Open Access
+© The Author(s) 2024. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which 
+permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the 
+original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or 
+other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line 
+to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory 
+regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this 
+licence, visit http://creativecommons.org/licenses/by/4.0/. The Creative Commons Public Domain Dedication waiver (http://creativecom-
+mons.org/publicdomain/zero/1.0/) applies to the data made available in this article, unless otherwise stated in a credit line to the data.
+Energy, Sustainability
+and Society
+Retraction Note: Sustainable development 
+economy and the development of green 
+economy in the European Union
+Mert Mentes1* 
+Retraction Note: Energy, Sustainability and Society 
+(2023) 13:32  
+https://doi.org/10.1186/s13705-023-00410-7
+The author has retracted this article because it over-
+laps substantially with [1]. The author agrees with this 
+retraction.
+Reference
+	1.	
+Gevher R, Acet H (2023) Avrupa Birliğinde Sürdürülebilir Kalkinma Ve Yeşil 
+Ekonominin Gelişimİ. Anadolu Üniversitesi İktisadi Ve İdari Bilimler Fakül-
+tesi Dergisi 24(1):224–253. https://​doi.​org/​10.​53443/​anado​luibfd.​11844​07
+Publisher’s Note
+Springer Nature remains neutral with regard to jurisdictional claims in pub-
+lished maps and institutional affiliations.
+The original article can be found online at https://​doi.​org/​10.​1186/​s13705-​
+023-​00410-7.
+*Correspondence:
+Mert Mentes
+mertmentes@gmail.com; mert.mentes@uni-corvinus.hu
+1 Corvinus University of Budapest, Budapest, Hungary
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+PRELIMINARY PRINT 
+Volume 602 U. S. Part 1 
+Pages 175–204 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 30, 2024 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2023 
+175 
+Syllabus 
+NATIONAL RIFLE ASSOCIATION OF AMERICA v. 
+VULLO 
+certiorari to the united states court of appeals for 
+the second circuit 
+No. 22–842. Argued March 18, 2024—Decided May 30, 2024 
+Petitioner National Rifle Association (NRA) sued respondent Maria 
+Vullo—former superintendent of the New York Department of Financial 
+Services (DFS)—alleging that Vullo violated the First Amendment by 
+coercing DFS-regulated parties to punish or suppress the NRA's gun-
+promotion advocacy. The Second Circuit held that Vullo's alleged 
+actions constituted permissible government speech and legitimate law 
+enforcement. The Court granted certiorari to address whether the 
+NRA's complaint states a First Amendment claim. 
+The NRA's “well-pleaded factual allegations,” Ashcroft v. Iqbal, 556 
+U. S. 662, 678–679, are taken as true at this motion-to-dismiss stage. 
+DFS regulates insurance companies and fnancial services institutions 
+doing business in New York, and has the power to initiate investigations 
+and civil enforcement actions, as well as to refer matters for criminal 
+prosecution. The NRA contracted with DFS-regulated entities— 
+affliates of Lockton Companies, LLC (Lockton)—to administer insur­
+ance policies the NRA offered as a beneft to its members, which Chubb 
+Limited (Chubb) and Lloyd's of London (Lloyd's) would then underwrite. 
+In 2017, Vullo began investigating one of these affnity insurance 
+policies—Carry Guard—on a tip passed along from a gun-control advo­
+cacy group. The investigation revealed that Carry Guard insured gun 
+owners from intentional criminal acts in violation of New York law, and 
+that the NRA promoted Carry Guard without the required insurance 
+producer license. Lockton and Chubb subsequently suspended Carry 
+Guard. Vullo then expanded her investigation into the NRA's other 
+affnity insurance programs. 
+On February 27, 2018, Vullo met with senior executives at Lloyd's, 
+expressed her views in favor of gun control, and told the Lloyd's execu­
+tives “that DFS was less interested in pursuing” infractions unrelated 
+to any NRA business “so long as Lloyd's ceased providing insurance to 
+gun groups, especially the NRA.” App. to Pet. for Cert. 199–200, ¶21. 
+Vullo and Lloyd's struck a deal: Lloyd's “would instruct its syndicates 
+to cease underwriting frearm-related policies and would scale back its 
+NRA-related business,” and “in exchange, DFS would focus its forth­
+coming affnity-insurance enforcement action solely on those syndicates 
+which served the NRA.” Id., at 223, ¶69. 
+
+176 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Syllabus 
+On April 19, 2018, Vullo issued letters entitled, “Guidance on Risk 
+Management Relating to the NRA and Similar Gun Promotion Organi­
+zations.” Id., at 246–251 (Guidance Letters). In the Guidance Letters, 
+Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating 
+and managing their risks, including reputational risks, that may arise 
+from their dealings with the NRA or similar gun promotion organiza­
+tions”; (2) “review any relationships they have with the NRA or similar 
+gun promotion organizations”; and (3) “take prompt actions to manag[e] 
+these risks and promote public health and safety.” Id., at 248, 251. 
+Vullo and Governor Cuomo also issued a joint press release echoing 
+many of the letters' statements, and “ `urg[ing] all insurance companies 
+and banks doing business in New York' ” to join those “ `that have al­
+ready discontinued their arrangements with the NRA.' ” Id., at 244. 
+DFS subsequently entered into separate consent decrees with Lockton, 
+Chubb, and Lloyd's, in which the insurers admitted violations of New 
+York's insurance law, agreed not to provide any NRA-endorsed insur­
+ance programs (even if lawful), and agreed to pay multimillion dollar 
+fnes. 
+Held: The NRA plausibly alleged that respondent violated the First 
+Amendment by coercing regulated entities to terminate their business 
+relationships with the NRA in order to punish or suppress gun-
+promotion advocacy. Pp. 187–199. 
+(a) At the heart of the First Amendment's Free Speech Clause is the 
+recognition that viewpoint discrimination is uniquely harmful to a free 
+and democratic society. When government offcials are “engaging in 
+their own expressive conduct,” though, “the Free Speech Clause has 
+no application.” Pleasant Grove City v. Summum, 555 U. S. 460, 467. 
+“When a government entity embarks on a course of action, it necessarily 
+takes a particular viewpoint and rejects others,” and thus does not need 
+to “maintain viewpoint-neutrality when its offcers and employees speak 
+about that venture.” Matal v. Tam, 582 U. S. 218, 234. While a gov­
+ernment offcial can share her views freely and criticize particular be­
+liefs in the hopes of persuading others, she may not use the power of 
+her offce to punish or suppress disfavored expression. 
+In Bantam Books, Inc. v. Sullivan, 372 U. S. 58, this Court explored 
+the distinction between permissible attempts to persuade and impermis­
+sible attempts to coerce. The Court explained that the First Amend­
+ment prohibits government offcials from relying on the “threat of invok­
+ing legal sanctions and other means of coercion . . . to achieve the 
+suppression” of disfavored speech. Id., at 67. Although the defendant 
+in Bantam Books, a state commission that blacklisted certain publica­
+tions, lacked the “power to apply formal legal sanctions,” the coerced 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 175 (2024) 
+177 
+Syllabus 
+party “reasonably understood” the commission to threaten adverse ac­
+tion, and thus its “compliance with the [c]ommission's directives was not 
+voluntary.” Id., at 66–68. To reach this conclusion, the Court consid­
+ered things like: the commission's authority; the commission's communi­
+cations; and the coerced party's reaction to the communications. Id., 
+at 68. The Courts of Appeals have since considered similar factors to 
+determine whether a challenged communication is reasonably under­
+stood to be a coercive threat. Ultimately, Bantam Books stands for the 
+principle that a government offcial cannot directly or indirectly coerce 
+a private party to punish or suppress disfavored speech on her behalf. 
+Pp. 187–191. 
+(b) To state a claim that the government violated the First Amend­
+ment through coercion of a third party, a plaintiff must plausibly allege 
+conduct that, viewed in context, could be reasonably understood to con­
+vey a threat of adverse government action in order to punish or sup­
+press speech. See Bantam Books, 372 U. S., at 67–68. Here, the NRA 
+plausibly alleged that Vullo violated the First Amendment by coercing 
+DFS-regulated entities into disassociating with the NRA in order to 
+punish or suppress gun-promotion advocacy. 
+As DFS superintendent, Vullo had direct regulatory and enforcement 
+authority over all insurance companies and fnancial service institutions 
+doing business in New York. She could initiate investigations, refer 
+cases for prosecution, notice civil charges, and enter into consent de­
+crees. Vullo's communications with the DFS-regulated entities, partic­
+ularly with Lloyd's, must be considered against the backdrop of Vullo's 
+authority. Vullo made clear she wanted Lloyd's to disassociate from all 
+gun groups, although there was no indication that such groups had un­
+lawful insurance policies similar to the NRA's. Vullo also told the 
+Lloyd's executives she would “focus” her enforcement actions “solely” 
+on the syndicates with ties to the NRA, “and ignore other syndicates 
+writing similar policies.” App. to Pet. for Cert. 223, ¶69. The message 
+was loud and clear: Lloyd's “could avoid liability for [unrelated] infrac­
+tions” if it “aided DFS's campaign against gun groups” by terminating 
+its business relationships with them. Ibid. As the reaction from 
+Lloyd's further confrms, Vullo's alleged communications—whether seen 
+as a threat or as an inducement—were reasonably understood as coer­
+cive. Other allegations concerning the Guidance Letters and accompa­
+nying press release, viewed in context of their issuance, reinforce the 
+NRA's First Amendment claim. Pp. 191–194. 
+(c) The Second Circuit concluded that Vullo's alleged communications 
+were “examples of permissible government speech” and “legitimate en­
+forcement action.” 49 F. 4th 700, 717–719. The Second Circuit could 
+only reach this conclusion, however, by taking the complaint's allega­
+
+Page Proof Pending Publication
+178 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Syllabus 
+tions in isolation and failing to draw reasonable inferences in the 
+NRA's favor. 
+Vullo's arguments to the contrary lack merit. The conceded illegality 
+of the NRA-endorsed insurance programs does not insulate Vullo from 
+First Amendment scrutiny under Bantam Books. Nor does her argu­
+ment that her actions targeted “nonexpressive” business relationships 
+change the fact that the NRA alleges her actions were aimed at punish­
+ing or suppressing speech. Finally, Vullo claims that the NRA's posi­
+tion, if accepted, would stife government speech and hamper legitimate 
+enforcement efforts, but the Court's conclusion simply reaffrms the gen­
+eral principle that where, as here, the complaint plausibly alleges coer­
+cive threats aimed at punishing or suppressing disfavored speech, the 
+plaintiff states a First Amendment claim. Pp. 194–197. 
+(d) The NRA's allegations, if true, highlight the constitutional con­
+cerns with the kind of strategy that Vullo purportedly adopted. Al­
+though the NRA was not the directly regulated party here, Vullo alleg­
+edly used the power of her offce to target gun promotion by going after 
+the NRA's business partners. Nothing in this case immunizes the NRA 
+from regulation nor prevents government offcials from condemning dis­
+favored views. The takeaway is that the First Amendment prohibits 
+government offcials from wielding their power selectively to punish or 
+suppress speech, directly or (as alleged here) through private intermedi­
+aries. Pp. 197–198. 
+49 F. 4th 700, vacated and remanded. 
+Sotomayor, J., delivered the opinion for a unanimous Court. Gor­
+such, J., post, p. 199, and Jackson, J., post, p. 199, fled concurring 
+opinions. 
+David D. Cole argued the cause for petitioner. With him 
+on the briefs were Eugene Volokh, William A. Brewer III, 
+Sarah B. Rogers, Noah Peters, Cecillia D. Wang, Jennifer 
+Stisa Granick, Alan B. Morrison, Brian Hauss, Vera Eidel­
+man, Jennesa Calvo-Friedman, and Ben Wizner. 
+Ephraim A. McDowell argued the cause for the United 
+States as amicus curiae urging vacatur. With him on the 
+brief were Solicitor General Prelogar, Principal Deputy 
+Assistant Attorney General Boynton, Deputy Solicitor 
+General Fletcher, Sopan Joshi, Daniel Tenny, and Daniel 
+Winik. 
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 175 (2024) 
+179 
+Counsel 
+Neal Kumar Katyal argued the cause for respondent. 
+With him on the brief were William E. Havemann, Danielle 
+Desaulniers Stemple, Reedy C. Swanson, Mary B. McCord, 
+William Powell, Trevor W. Morrison, Andrew G. Celli, Jr., 
+and Debra L. Greenberger.* 
+*Briefs of amici curiae urging reversal were fled for the State of Mon­
+tana et al. by Austin Knudsen, Attorney General of Montana, Christian B. 
+Corrigan, Solicitor General, and Peter M. Torstensen, Jr., Deputy Solicitor 
+General, and by the Attorneys General for their respective States as fol­
+lows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn of 
+Arkansas, Christopher M. Carr of Georgia, Raúl R. Labrador of Idaho, 
+Brenna Bird of Iowa, Kris Kobach of Kansas, Russell Coleman of Ken­
+tucky, Liz Murrill of Louisiana, Andrew Bailey of Missouri, Michael T. 
+Hilgers of Nebraska, John M. Formella of New Hampshire, Drew H. 
+Wrigley of North Dakota, Dave Yost of Ohio, Gentner F. Drummond of 
+Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Da­
+kota, Jonathan Skrmetti of Tennessee, Sean D. Reyes of Utah, Jason Miy­
+ares of Virginia, Patrick Morrisey of West Virginia, and Bridget Hill of 
+Wyoming; for the State of Indiana et al. by Theodore E. Rokita, Attorney 
+General of Indiana, James A. Barta, Solicitor General, and Lynn Fitch, 
+Attorney General of Mississippi; for Advancing American Freedom et al. 
+by J. Marc Wheat; for the American Center for Law and Justice by Jay 
+Alan Sekulow, Stuart J. Roth, Jordan A. Sekulow, Craig L. Parshall, and 
+Walter M. Weber; for the Americans for Prosperity Foundation by Cyn­
+thia Fleming Crawford; for the Buckeye Institute by Jay R. Carson and 
+David C. Tryon; for the Competitive Enterprise Institute by Devin Wat­
+kins and Dan Greenberg; for Consumers' Research by Christopher E. 
+Mills; for Financial and Business Law Scholars by R. Trent McCotter, 
+Jonathan Berry, and Brian R. Knight and George A. Mocsary, both 
+pro se; for the Firearm Policy Coalition, Inc., by David H. Thompson and 
+Peter A. Patterson; for First Amendment Scholars by Lisa S. Blatt and 
+Joseph M. Terry; for the Foundation for Individual Rights and Expression 
+et al. by Robert Corn-Revere, Ronald G. London, Joshua A. House, Lee 
+Rowland, John W. Whitehead, and Edward S. Rudofsky; for the Goldwa­
+ter Institute et al. by Timothy Sandefur and Anastasia P. Boden; for Gun 
+Owners of America et al. by William J. Olson, Jeremiah L. Morgan, Rob­
+ert J. Olson, Mark J. Fitzgibbons, Michael J. Boos, and John I. Harris 
+III; for Heartbeat International, Inc., by John J. Bursch, Samuel J. Sala­
+rio, Jr., James A. Campbell, Jeremy D. Tedesco, and Travis C. Barham; 
+for the National Association for Gun Rights et al. by David A. Warrington 
+and Gary M. Lawkowski; for the New Civil Liberties Alliance by Jenin 
+
+Page Proof Pending Publication
+180 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+Justice Sotomayor delivered the opinion of the Court. 
+Six decades ago, this Court held that a government entity's 
+“threat of invoking legal sanctions and other means of coer­
+cion” against a third party “to achieve the suppression” of 
+disfavored speech violates the First Amendment. Bantam 
+Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). Today, the 
+Court reaffrms what it said then: Government offcials can­
+not attempt to coerce private parties in order to punish or 
+suppress views that the government disfavors. Petitioner 
+National Rife Association (NRA) plausibly alleges that re­
+spondent Maria Vullo did just that. As superintendent of 
+the New York Department of Financial Services, Vullo alleg­
+edly pressured regulated entities to help her stife the NRA's 
+Younes and Mark Chenoweth; for Project for Privacy and Surveillance 
+Accountability, Inc., by Gene C. Schaerr, Erik S. Jaffe, and Kenneth A. 
+Klukowski; for the Second Amendment Foundation et al. by Joseph G. S. 
+Greenlee, David B. Kopel, and Jonathan D. Guze; for Sen. Ted Budd et al. 
+by James R. Lawrence III; and for James P. Corcoran by Brett A. Shumate 
+and Charles E. T. Roberts. 
+Briefs of amici curiae urging affrmance were fled for the State of Hawaii 
+et al. by Anne E. Lopez, Attorney General of Hawaii, Kaliko`ona¯ lani D. Fer­
+nandes, Solicitor General, and Ewan C. Rayner and Thomas J. Hughes, Dep­
+uty Solicitors General, and by the Attorneys General for their respective 
+States as follows: Kathleen Jennings of Delaware, Anthony G. Brown of 
+Maryland, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. 
+Ford of Nevada, Raúl Torrez of New Mexico, Ellen F. Rosenblum of Oregon, 
+Charity R. Clark of Vermont, and Robert W. Ferguson of Washington; for 
+First Amendment Scholars by Matteo Godi; for Former and Current Prose­
+cutors et al. by Geoffrey M. Pipoly; for Former Executive Offcers of the 
+New York State Department of Financial Services by Daniel S. Alter; and 
+for Former State Commissioners of Insurance et al. by Beth C. Neitzel. 
+Briefs of amici curiae were fled for the Brady Center to Prevent Gun 
+Violence by Timothy C. Hester, Douglas N. Letter, and Shira Lauren Feld­
+man; for the Claremont Institute's Center for Constitutional Jurisprudence 
+by John C. Eastman and Anthony T. Caso; for Federal Courts and Civil Pro­
+cedure Scholars by Thomas G. Sprankling; for Financial Regulation and Ad­
+ministrative Law Scholars by Cyrus Vance; and for the International Munic­
+ipal Lawyers Association by Meaghan VerGow, Amanda Karras, and 
+Erich Eiselt. 
+
+Cite as: 602 U. S. 175 (2024) 
+181 
+Opinion of the Court 
+pro-gun advocacy by threatening enforcement actions 
+against those entities that refused to disassociate from the 
+NRA and other gun-promotion advocacy groups. Those al­
+legations, if true, state a First Amendment claim. 
+I 
+A 
+Because this case comes to us at the motion-to-dismiss 
+stage, the Court assumes the truth of “well-pleaded factual 
+allegations” and “reasonable inference[s]” therefrom. Ash­
+croft v. Iqbal, 556 U. S. 662, 678–679 (2009). Unless stated 
+otherwise, the allegations aver as follows: 
+The New York Department of Financial Services (DFS) 
+oversees insurance companies and fnancial services institu­
+tions doing business in the State. See N. Y. Fin. Servs. Law 
+Ann. § 201(a) (West 2012). DFS can initiate investigations 
+and civil enforcement actions against regulated entities, 
+and can refer potential criminal violations to the State's at­
+torney general for prosecution. §§ 301(b), (c)(4). The DFS-
+regulated entities in this case are insurers that had business 
+relationships with the NRA. 
+Since 2000, the NRA has offered a variety of insurance 
+programs as a beneft to its members. The NRA contracted 
+with affliates of Lockton Companies, LLC (Lockton), to ad­
+minister the various policies of these affnity insurance pro­
+grams, which Chubb Limited (Chubb) and Lloyd's of London 
+(Lloyd's) would then underwrite. In return, the NRA re­
+ceived a percentage of its members' premium payments. 
+One of the NRA's affnity products, Carry Guard, covered 
+personal-injury and criminal-defense costs related to li­
+censed frearm use, and “insured New York residents for in­
+tentional, reckless, and criminally negligent acts with a fre­
+arm that injured or killed another person.” 49 F. 4th 700, 
+707 (CA2 2022). 
+In September 2017, a gun-control advocacy group con­
+tacted the New York County District Attorney's offce to tip 
+Page Proof Pending Publication
+
+182 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+them off to “compliance infrmities in Carry Guard.” App. 
+to Pet. for Cert. 206, Second Amended Complaint ¶34. That 
+offce then passed on the allegations to DFS. The next 
+month, then-Superintendent of DFS Vullo began investigat­
+ing Carry Guard, focusing on Chubb and Lockton. The in­
+vestigation revealed at least two kinds of violations of New 
+York law: that Carry Guard insured intentional criminal acts, 
+and the NRA promoted Carry Guard without an insurance 
+producer license. By mid-November, upon fnding out about 
+the investigation following DFS information requests, Lock-
+ton and Chubb suspended Carry Guard. Vullo then ex­
+panded her investigation into the NRA's other affnity insur­
+ance programs, many of which were underwritten by Lloyd's 
+and administered by Lockton. These NRA-endorsed pro­
+grams provided similar coverage and suffered from the same 
+legal infrmities. 
+In the midst of the investigation, tragedy struck Parkland, 
+Florida. On February 14, 2018, a gunman opened fre at 
+Marjory Stoneman Douglas High School, murdering 17 stu­
+dents and staff members. Following the shooting, the NRA 
+and other gun-advocacy groups experienced “intense back­
+lash” across the country. 49 F. 4th, at 708. Major business 
+institutions, including DFS-regulated entities, spoke out 
+against the NRA, and some even cut ties with the organiza­
+tion. App. to Pet. for Cert. 244. MetLife, for example, 
+ended a discount program it offered with the NRA. On 
+February 25, 2018, Lockton's chairman “placed a distraught 
+telephone call to the NRA,” in which he privately shared 
+that Lockton would sever all ties with the NRA to avoid 
+“ `losing [its] license' to do business in New York.” Id., at 
+209, Complaint ¶42. Lockton publicly announced its deci­
+sion the next day. Following Lockton's decision, the NRA's 
+corporate insurance carrier also severed ties with the organi­
+zation and refused to renew coverage at any price. The 
+NRA contends that Lockton and the corporate insurance car­
+rier took these steps not because of the Parkland shooting 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+183 
+Opinion of the Court 
+but because they feared “reprisa[l]” from Vullo. Id., at 210, 
+¶44; see id., at 209–210, ¶¶41–43. 
+Around that time, Vullo also began to meet with execu­
+tives at the insurance companies doing business with the 
+NRA. On February 27, Vullo met with senior executives at 
+Lloyd's. There, speaking on behalf of DFS and then-
+Governor Andrew Cuomo, Vullo “presented [their] views on 
+gun control and their desire to leverage their powers to 
+combat the availability of frearms, including specifcally by 
+weakening the NRA.” Id., at 221, ¶67. She also “discussed 
+an array of technical regulatory infractions plaguing the 
+affnity-insurance marketplace” in New York. Id., at 199, 
+¶21. Vullo told the Lloyd's executives “that DFS was less 
+interested in pursuing the[se] infractions” unrelated to any 
+NRA business “so long as Lloyd's ceased providing insurance 
+to gun groups, especially the NRA.” Id., at 199–200, ¶21; 
+accord, id., at 223, ¶69 (alleging that Vullo made it clear to 
+Lloyd's that it “could avoid liability for infractions relating 
+to other, similarly situated insurance policies, so long as it 
+aided DFS's campaign against gun groups”).1 
+Vullo and 
+Lloyd's struck a deal: Lloyd's “would instruct its syndicates 
+to cease underwriting frearm-related policies and would 
+scale back its NRA-related business,” and “in exchange, 
+DFS would focus its forthcoming affnity-insurance enforce­
+ment action solely on those syndicates which served the 
+NRA, and ignore other syndicates writing similar policies.” 
+Ibid., ¶69. 
+On April 19, 2018, Vullo issued two virtually identical 
+guidance letters on DFS letterhead entitled, “Guidance on 
+Risk Management Relating to the NRA and Similar Gun 
+Promotion Organizations.” Id., at 246–251 (Guidance Let­
+ters). Vullo sent one of the letters to insurance companies 
+1 According to the complaint, other affnity organizations offered similar 
+insurance policies, including the New York State Bar Association, the New 
+York City Bar, and the New York State Psychological Association, among 
+others. See App. to Pet. for Cert. 207–208, Complaint ¶36. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+184 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+and the other to fnancial services institutions. In the let­
+ters, Vullo pointed to the “social backlash” against the NRA 
+and other groups “that promote guns that lead to senseless 
+violence” following “several recent horrifc shootings, includ­
+ing in Parkland, Florida.” Id., at 246, 249. Vullo then cited 
+recent instances of businesses severing their ties with the 
+NRA as examples of companies “fulflling their corporate so­
+cial responsibility.” Id., at 247, 250. 
+In the Guidance Letters' fnal paragraph, Vullo “encour­
+age[d]” DFS-regulated entities to: (1) “continue evaluating 
+and managing their risks, including reputational risks, that 
+may arise from their dealings with the NRA or similar gun 
+promotion organizations”; (2) “review any relationships they 
+have with the NRA or similar gun promotion organizations”; 
+and (3) “take prompt actions to manag[e] these risks and 
+promote public health and safety.” Id., at 248, 251.2 
+The same day that DFS issued the Guidance Letters, Vullo 
+and Governor Cuomo issued a joint press release that echoed 
+many of the letters' statements. The press release included 
+a quote from Vullo “ `urg[ing] all insurance companies and 
+banks doing business in New York' ” to join those “ `that have 
+already discontinued their arrangements with the NRA.' ” 
+Id., at 244. The press release cited Chubb's decision to stop 
+underwriting Carry Guard as an example to emulate. The 
+next day, Cuomo tweeted: “ `The NRA is an extremist organi­
+zation. I urge companies in New York State to revisit any 
+ties they have to the NRA and consider their reputations, and 
+responsibility to the public.' ” Id., at 213, Complaint ¶51. 
+2 The fnancial-regulatory term “reputational risk” is “ `the risk to cur­
+rent or projected fnancial condition and resilience arising from negative 
+public opinion,' which `may impair a bank's competitiveness by affecting 
+its ability to establish new relationships or services or continue servicing 
+existing relationships.' ” Brief for United States as Amicus Curiae 27– 
+28, and n. 10 (quoting Offce of the Comptroller of the Currency, Comptrol­
+ler's Handbook, Examination Process, Bank Supervision Process 28 (Sept. 
+2019)). DFS monitors the reputational risk of regulated institutions be­
+cause of its potential effect on market stability. See Brief for Respondent 6. 
+
+Cite as: 602 U. S. 175 (2024) 
+185 
+Opinion of the Court 
+Less than two weeks after the Guidance Letters and press 
+release went out, DFS entered into consent decrees with 
+Lockton (on May 2), and Chubb (on May 7). The decrees 
+stipulated that Carry Guard violated New York insurance 
+law because it provided insurance coverage for intentional 
+criminal acts, and because the NRA promoted Carry Guard, 
+along with other NRA-endorsed programs, without an insur­
+ance producer license. The decrees also listed other infrac­
+tions of the State's insurance law. Both Lockton and Chubb 
+admitted liability, agreed not to provide any NRA-endorsed 
+insurance programs (even if lawful) but were permitted to 
+sell corporate insurance to the NRA, and agreed to pay 
+fnes of $7 million and $1.3 million respectively. On May 9, 
+Lloyd's offcially instructed its syndicates to terminate exist­
+ing agreements with the NRA and not to insure new ones. 
+It publicly announced its decision to cut ties with the NRA 
+that same day. On December 20, 2018, DFS and Lloyd's en­
+tered into their own consent decree, which imposed similar 
+terms and a $5 million fne. 
+B 
+The NRA sued Cuomo, Vullo, and DFS. The only claims 
+before the Court today are those against Vullo—namely, 
+claims that Vullo violated the First Amendment by coercing 
+DFS-regulated parties to punish or suppress “the NRA's 
+pro-Second Amendment viewpoint” and “core political 
+speech.” Id., at 231, ¶91, 234, ¶101. The complaint asserts 
+both censorship and retaliation First Amendment claims, 
+which the parties and lower courts have analyzed together. 
+Vullo moved to dismiss, arguing that the alleged conduct did 
+not constitute impermissible coercion and that, in the alter­
+native, she was entitled to qualifed immunity because she 
+did not violate clearly established law. 
+The District Court denied Vullo's motion to dismiss the 
+NRA's First-Amendment damages claims. The court held 
+that the NRA plausibly alleged that “the combination of 
+Page Proof Pending Publication
+
+186 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+[Vullo's and Cuomo's] actions . . . could be interpreted as a 
+veiled threat to regulated industries to disassociate with the 
+NRA or risk DFS enforcement action.” NRA of Am. v. 
+Cuomo, 525 F. Supp. 3d 382, 402–403 (NDNY 2021). That 
+threat, the court said, crossed a First Amendment line. The 
+District Court concluded that Vullo was not entitled to quali­
+fed immunity at the motion-to-dismiss stage. 
+The Second Circuit reversed. It concluded that Vullo's al­
+leged actions constituted permissible government speech and 
+legitimate law enforcement, and not unconstitutional coer­
+cion. The Second Circuit determined that the Guidance 
+Letters and accompanying press release were not unconsti­
+tutionally coercive because they “were written in an even­
+handed, nonthreatening tone and employed words intended 
+to persuade rather than intimidate.” 49 F. 4th, at 717. The 
+court found it signifcant that Vullo “did not refer to any 
+pending investigations or possible regulatory action” and al­
+luded only to business-related risks “amid growing public 
+concern over gun violence.” Ibid. As for Vullo's meeting 
+with the Lloyd's executives, the court admitted that the alle­
+gations presented a “closer call.” Id., at 718. Nonetheless, 
+just as with the consent decrees, it found that Vullo “was 
+merely carrying out her regulatory responsibilities.” Id., at 
+718–719. The Second Circuit also held that, even if the com­
+plaint stated a First Amendment violation, the law was not 
+clearly established, and so Vullo was entitled to qualifed 
+immunity. 
+The NRA fled a petition for a writ of certiorari, seeking 
+either summary reversal or review of the First Amendment 
+and qualifed immunity holdings. This Court granted cer­
+tiorari on only the frst question presented whether the com­
+plaint states a First Amendment claim against Vullo. See 
+601 U. S. ––– (2023).3 
+3 Vullo argues that the Court must dismiss the case as improvidently 
+granted because the Court deprived itself of jurisdiction by limiting its 
+review to the First Amendment question and declining to review the Sec­
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+187 
+Opinion of the Court 
+II 
+As discussed below, Vullo was free to criticize the NRA 
+and pursue the conceded violations of New York insurance 
+law. She could not wield her power, however, to threaten 
+enforcement actions against DFS-regulated entities in order 
+to punish or suppress the NRA's gun-promotion advocacy. 
+Because the complaint plausibly alleges that Vullo did just 
+that, the Court holds that the NRA stated a First Amend­
+ment violation. 
+A 
+At the heart of the First Amendment's Free Speech Clause 
+is the recognition that viewpoint discrimination is uniquely 
+harmful to a free and democratic society. The Clause pro­
+hibits government entities and actors from “abridging the 
+freedom of speech.” When government offcials are “engag­
+ing in their own expressive conduct,” though, “the Free 
+Speech Clause has no application.” Pleasant Grove City v. 
+Summum, 555 U. S. 460, 467 (2009). The government can 
+“ `say what it wishes' ” and “select the views that it wants to 
+express.” Id., at 467–468 (quoting Rosenberger v. Rector 
+and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)). That 
+makes sense; the government could barely function other­
+wise. “When a government entity embarks on a course of 
+action, it necessarily takes a particular viewpoint and rejects 
+others,” and thus does not need to “maintain viewpoint-
+neutrality when its offcers and employees speak about that 
+venture.” Matal v. Tam, 582 U. S. 218, 234 (2017). 
+ond Circuit's alternative holding that Vullo is entitled to qualifed immu­
+nity. See Brief for Respondent 21–24. Not so. In this case, “[a]n order 
+limiting the grant of certiorari does not operate as a jurisdictional bar.” 
+Piper Aircraft Co. v. Reyno, 454 U. S. 235, 247, n. 12 (1981). Because the 
+Second Circuit is free to revisit the qualifed immunity question in light of 
+this Court's opinion, the NRA still could obtain “ `effectual relief' ” on re­
+mand. Chafn v. Chafn, 568 U. S. 165, 172 (2013). In such circumstances, 
+it cannot be said that the resolution of the First Amendment question is 
+merely advisory. 
+Page Proof Pending Publication
+
+188 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+A government offcial can share her views freely and criti­
+cize particular beliefs, and she can do so forcefully in the 
+hopes of persuading others to follow her lead. In doing so, 
+she can rely on the merits and force of her ideas, the strength 
+of her convictions, and her ability to inspire others. What 
+she cannot do, however, is use the power of the State to 
+punish or suppress disfavored expression. See Rosenberger, 
+515 U. S., at 830 (explaining that governmental actions seek­
+ing to suppress a speaker's particular views are presump­
+tively unconstitutional). In such cases, it is “the application 
+of state power which we are asked to scrutinize.” NAACP 
+v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958). 
+In Bantam Books, this Court explored the distinction be­
+tween permissible attempts to persuade and impermissible 
+attempts to coerce. There, a state commission used its 
+power to investigate and recommend criminal prosecution to 
+censor publications that, in its view, were “ `objectionable' ” 
+because they threatened “youthful morals.” 372 U. S., at 
+59–62, 71. The commission sent offcial notices to a distribu­
+tor for blacklisted publications that highlighted the commis­
+sion's “duty to recommend to the Attorney General” viola­
+tions of the State's obscenity laws. Id., at 62–63, and n. 5. 
+The notices also informed the distributor that the lists of 
+blacklisted publications “were circulated to local police de­
+partments,” and that the distributor's cooperation in remov­
+ing the publications from the shelves would “ `eliminate the 
+necessity' ” of any referral for prosecution. Ibid. A local 
+police offcer also conducted followup visits to ensure compli­
+ance. In response, the distributor took “steps to stop fur­
+ther circulation of copies of the listed publications” out of 
+fear of facing “ `a court action.' ” Id., at 63. 
+The publishers of the blacklisted publications sued the 
+commission, alleging that this scheme of informal censorship 
+violated their First Amendment rights. The commission re­
+sponded that “it d[id] not regulate or suppress obscenity but 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+189 
+Opinion of the Court 
+simply exhort[ed] booksellers and advise[d] them of their 
+legal rights.” Id., at 66. This Court sided with the publish­
+ers, holding that the commission violated their free-speech 
+rights by coercing the distributor to stop selling and display­
+ing the listed publications. 
+The Court explained that the First Amendment prohibits 
+government offcials from relying on the “threat of invoking 
+legal sanctions and other means of coercion . . . to achieve 
+the suppression” of disfavored speech. Id., at 67. Although 
+the commission lacked the “power to apply formal legal sanc­
+tions,” the distributor “reasonably understood” the commis­
+sion to threaten adverse action, and thus the distributor's 
+“compliance with the [c]ommission's directives was not vol­
+untary.” Id., at 66–68. To reach this conclusion, the Court 
+considered things like: the commission's coordination with 
+law enforcement and its authority to refer matters for prose­
+cution; the notices themselves, which were “phrased virtu­
+ally as orders” containing “thinly veiled threats to institute 
+criminal proceedings” if the distributor did not come around; 
+and the distributor's reaction to the notices and followup vis­
+its. Id., at 68. 
+Since Bantam Books, the Courts of Appeals have consid­
+ered similar factors to determine whether a challenged com­
+munication is reasonably understood to be a coercive threat. 
+Take the decision below, for example. The Second Circuit 
+purported to consider: “(1) word choice and tone; (2) the ex­
+istence of regulatory authority; (3) whether the speech was 
+perceived as a threat; and, perhaps most importantly, (4) 
+whether the speech refers to adverse consequences.” 49 F. 
+4th, at 715 (citations omitted).4 
+Other Circuits have taken 
+4 The NRA posits a three-factor test that looks to: (1) the actor's author­
+ity; (2) the content and purpose of the actor's communications; and (3) the 
+reactions of the recipient. Brief for Petitioner 26. The NRA concedes, 
+however, that its test is the same as the Second Circuit's, as it considers 
+the fourth factor in the Second Circuit's test of “ `whether the speech re­
+Page Proof Pending Publication
+
+190 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+similarly fact-intensive approaches, utilizing a multifactor 
+test or a totality-of-the-circumstances analysis. See, e.g., 
+Missouri v. Biden, 83 F. 4th 350, 380 (CA5 2023) (“[T]o help 
+distinguish permissible persuasion from impermissible coer­
+cion, we turn to the Second (and Ninth) Circuit's four-factor 
+test”); Kennedy v. Warren, 66 F. 4th 1199, 1207 (CA9 2023) 
+(applying the Second Circuit's “useful non-exclusive four-
+factor framework”); Backpage.com, LLC v. Dart, 807 F. 3d 
+229, 230–232 (CA7 2015) (considering the same factors as 
+part of a totality-of-the-circumstances analysis); R. C. Max­
+well Co. v. New Hope, 735 F. 2d 85, 88 (CA3 1984) (same). 
+The Courts of Appeals that employ a multifactor test agree 
+that “[n]o one factor is dispositive.” 49 F. 4th, at 715; accord, 
+Kennedy, 66 F. 4th, at 1210 (explaining that the absence of 
+direct regulatory authority is not dispositive). 
+Ultimately, Bantam Books stands for the principle that a 
+government offcial cannot do indirectly what she is barred 
+from doing directly: A government offcial cannot coerce a 
+private party to punish or suppress disfavored speech on her 
+behalf. See, e.g., 372 U. S., at 67–69; see also Backpage.com, 
+807 F. 3d, at 231 (holding that the First Amendment barred 
+a sheriff from “using the power of his offce to threaten legal 
+sanctions against . . . credit-card companies for facilitating 
+future speech”); Okwedy v. Molinari, 333 F. 3d 339, 344 
+(CA2 2003) (per curiam) (holding that a religious group 
+stated a First Amendment claim against a borough president 
+who wrote a letter “contain[ing] an implicit threat of retalia­
+tion” against a billboard company displaying the group's dis­
+favored message); cf. Penthouse Int'l, Ltd. v. Meese, 939 
+F. 2d 1011, 1016 (CADC 1991) (“[W]hen the government 
+threatens no sanction—criminal or otherwise—we very 
+much doubt that the government's criticism or effort to em­
+fers to adverse consequences' ” to be an “aspect of the inquiry into the 
+content and purpose of the communication.” Id., at 27, n. 8. 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+191 
+Opinion of the Court 
+barrass the [intermediary] threatens anyone's First Amend­
+ment rights”). 
+B 
+The parties and the Solicitor General, who fled an amicus 
+brief supporting vacatur, agree that Bantam Books provides 
+the right analytical framework for claims that the govern­
+ment has coerced a third party to violate the First Amend­
+ment rights of another. They also embrace the lower courts' 
+multifactor test as a useful, though nonexhaustive, guide. 
+Rightly so. Considerations like who said what and how, and 
+what reaction followed, are just helpful guideposts in an­
+swering the question whether an offcial seeks to persuade 
+or, instead, to coerce. Where the parties differ is on the 
+application of the Bantam Books framework. The NRA and 
+the Solicitor General reject the Second Circuit's application 
+of the framework, while Vullo defends it. The Court now 
+agrees with the NRA and the Solicitor General. 
+To state a claim that the government violated the First 
+Amendment through coercion of a third party, a plaintiff 
+must plausibly allege conduct that, viewed in context, could 
+be reasonably understood to convey a threat of adverse gov­
+ernment action in order to punish or suppress the plaintiff 's 
+speech. See 372 U. S., at 67–68. Accepting the well-
+pleaded factual allegations in the complaint as true, the NRA 
+plausibly alleged that Vullo violated the First Amendment 
+by coercing DFS-regulated entities into disassociating with 
+the NRA in order to punish or suppress the NRA's gun-
+promotion advocacy. 
+Consider frst Vullo's authority, which serves as a back­
+drop to the NRA's allegations of coercion. The power that 
+a government offcial wields, while certainly not dispositive, 
+is relevant to the objective inquiry of whether a reasonable 
+person would perceive the offcial's communication as coer­
+cive. See id., at 66–67. Generally speaking, the greater 
+and more direct the government offcial's authority, the less 
+Page Proof Pending Publication
+
+192 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+likely a person will feel free to disregard a directive from 
+the offcial. For example, imagine a local affnity group in 
+New York that receives a strongly worded letter. One 
+would reasonably expect that organization to react differ­
+ently if the letter came from, say, the U. S. Attorney for the 
+Southern District of New York than if it came from an out­
+of-state school board. 
+As DFS superintendent, Vullo had direct regulatory and 
+enforcement authority over all insurance companies and 
+fnancial service institutions doing business in New York. 
+See N. Y. Fin. Servs. Law Ann. §§ 202, 301. Just like the 
+commission in Bantam Books, Vullo could initiate investiga­
+tions and refer cases for prosecution. Indeed, she could do 
+much more than that. Vullo also had the power to notice 
+civil charges and, as this case shows, enter into consent de­
+crees that impose signifcant monetary penalties. 
+Against this backdrop, consider Vullo's communications 
+with the DFS-regulated entities, particularly with Lloyd's. 
+According to the NRA, Vullo brought a variety of insurance-
+law violations to the Lloyd's executives' attention during a 
+private meeting in February 2018. The violations included 
+technical infractions that allegedly plagued the affnity insur­
+ance market in New York and that were unrelated to any 
+NRA business. App. to Pet. for Cert. 199–200, Complaint 
+¶21; accord, id., at 207–208, ¶¶36–37; id., at 223, ¶69. Vullo 
+allegedly said she would be “less interested in pursuing 
+the[se] infractions . . . so long as Lloyd's ceased providing 
+insurance to gun groups, especially the NRA.” Id., at 199– 
+200, ¶21. Vullo therefore wanted Lloyd's to disassociate from 
+all gun groups, although there was no indication that such 
+groups had unlawful insurance policies similar to the NRA's. 
+Vullo also told the Lloyd's executives she would “focus” her 
+enforcement actions “solely” on the syndicates with ties to 
+the NRA, “and ignore other syndicates writing similar poli­
+cies.” Id., at 223, ¶69. The message was therefore loud 
+and clear: Lloyd's “could avoid liability for [unrelated] infrac­
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+193 
+Opinion of the Court 
+tions” if it “aided DFS's campaign against gun groups” by 
+terminating its business relationships with them. Ibid. 
+As alleged, Vullo's communications with Lloyd's can be 
+reasonably understood as a threat or as an inducement. 
+Either of those can be coercive. As Vullo concedes, the 
+“threat need not be explicit,” Brief for Respondent 47, and 
+as the Solicitor General explains, “[t]he Constitution does not 
+distinguish between `comply or I'll prosecute' and `comply 
+and I'll look the other way,' ” Brief for United States as Ami­
+cus Curiae 18, n. 7. So, whether analyzed as a threat or as 
+an inducement, the conclusion is the same: Vullo allegedly 
+coerced Lloyd's by saying she would ignore unrelated infrac­
+tions and focus her enforcement efforts on NRA-related busi­
+ness alone, if Lloyd's ceased underwriting NRA policies and 
+disassociated from gun-promotion groups. 
+The reaction from Lloyd's further confrms the communi­
+cations' coercive nature. Cf. Bantam Books, 372 U. S., at 
+63, 68 (noting that the distributor's “reaction on receipt of a 
+notice was to take steps to stop further circulation of copies 
+of the listed publications”). At the meeting itself, Lloyd's 
+“agreed that it would instruct its syndicates to cease under­
+writing frearm-related policies and would scale back its 
+NRA-related business.” App. to Pet. for Cert. 223, Com­
+plaint ¶69. Minutes from a subsequent board of directors' 
+meeting reveal that Lloyd's thought “the DFS investigation 
+had transformed the gun issue into `a regulatory, legal[,] and 
+compliance matter.' ” 2 App. to Pet. for Cert. 29 (Sealed). 
+That reaction is consistent with Lloyd's public announcement 
+that it had directed its syndicates to “terminate all insurance 
+related to the NRA and not to provide any insurance to the 
+NRA in the future.” App. to Pet. for Cert. 224, Complaint 
+¶72; accord, id., at 306, ¶20 (consent decree memorializing 
+commitment not to underwrite, or participate in, NRA-
+endorsed programs). 
+Other allegations, viewed in context, reinforce the NRA's 
+First Amendment claim. Consider the April 2018 Guidance 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+194 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+Letters and accompanying press release, which Vullo issued 
+on offcial letterhead. Cf. Bantam Books, 372 U. S., at 61– 
+63, and n. 5 (discussing notice issued in “offcial Commission 
+stationery”). Just like in her meeting with the Lloyd's exec­
+utives, here too Vullo singled out the NRA and other gun-
+promotion organizations as the targets of her call to action. 
+This time, the Guidance Letters reminded DFS-regulated 
+entities of their obligation to consider their “reputational 
+risks,” and then tied that obligation to an encouragement for 
+“prompt actio[n] to manag[e] these risks.” App. to Pet. for 
+Cert. 248, 251. Evocative of Vullo's private conversation 
+with the Lloyd's executives a few weeks earlier, the press 
+release revealed how to manage the risks by encouraging 
+DFS-regulated entities to “ `discontinu[e] their arrangements 
+with the NRA,' ” just like Chubb did when it stopped under­
+writing Carry Guard. Id., at 244. A follow-on tweet from 
+Cuomo reaffrmed the message: Businesses in New York 
+should “ `consider their reputations' ” and “ `revisit any ties 
+they have to the NRA,' ” which he called “ `an extremist or­
+ganization.' ” Id., at 213, ¶51. 
+In sum, the complaint, assessed as a whole, plausibly 
+alleges that Vullo threatened to wield her power against 
+those refusing to aid her campaign to punish the NRA's 
+gun-promotion advocacy. If true, that violates the First 
+Amendment. 
+C 
+In holding otherwise, the Second Circuit found that: (1) 
+the “Guidance Letters and Press Release are clear examples 
+of permissible government speech”; and (2) the Lloyd's meet­
+ing was “legitimate enforcement action” in which Vullo was 
+“merely carrying out her regulatory responsibilities” by of­
+fering “leniency in the course of negotiating a resolution of 
+the apparent insurance law violations.” 49 F. 4th, at 717– 
+719. The Second Circuit could only reach this conclusion by 
+taking the allegations in isolation and failing to draw reason­
+able inferences in the NRA's favor in violation of this Court's 
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 175 (2024) 
+195 
+Opinion of the Court 
+precedents. Cf. Iqbal, 556 U. S., at 678–679; Bell Atlantic 
+Corp. v. Twombly, 550 U. S. 544, 570 (2007). 
+For example, the Second Circuit failed to analyze the Guid­
+ance Letters and press release against the backdrop of other 
+allegations in the complaint, including the Lloyd's meeting. 
+Moreover, as discussed above, the complaint alleges that 
+Vullo made a not-so-subtle, sanctions-backed threat to 
+Lloyd's to cut all business ties with the NRA and other gun-
+promotion groups, although there was no sign that other gun 
+groups also had unlawful insurance policies. See supra, at 
+192. It is also relevant that Vullo made this alleged threat 
+in a meeting where she presented her “desire to leverage 
+[her] powers to combat the availability of frearms, including 
+specifcally by weakening the NRA.” App. to Pet. for Cert. 
+221, Complaint ¶67; id., at 223, ¶69 (alleging Vullo hoped 
+to enlist DFS-regulated entities in “aid[ing] DFS's campaign 
+against gun groups”). Given the obligation to draw reason­
+able inferences in the NRA's favor and consider the allega­
+tions as a whole, the Second Circuit erred in reading the 
+complaint as involving only individual instances of “permissi­
+ble government speech” and the execution of Vullo's “regula­
+tory responsibilities.” 49 F. 4th, at 717–719. 
+For the same reasons, this Court cannot simply credit Vul­
+lo's assertion that “pursuing conceded violations of the law,” 
+Brief for Respondent 29, is an “ `obvious alternative explana­
+tion' ” for her actions that defeats the plausibility of any coer­
+cive threat raising First Amendment concerns, id., at 37, 40, 
+42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in 
+this case might show that the allegations of coercion are 
+false, or that certain actions should be understood differently 
+in light of newly disclosed evidence. At this stage, though, 
+the Court must assume the well-pleaded factual allegations 
+in the complaint are true.5 
+5 Vullo also argues that she is entitled to absolute prosecutorial immu­
+nity for her enforcement actions. See Brief for Respondent 25–28. Put­
+ting aside whether a fnancial regulator like Vullo is entitled to such immu­
+
+Page Proof Pending Publication
+196 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+Moreover, the conceded illegality of the NRA-endorsed 
+insurance programs does not insulate Vullo from First 
+Amendment scrutiny under the Bantam Books framework. 
+Indeed, the commission in that case targeted the distribution 
+and display of material that, in its view, violated the State's 
+obscenity laws. Nothing in that case turned on the distribu­
+tor's compliance with state law. On the contrary, Bantam 
+Books held that the commission violated the First Amend­
+ment by invoking legal sanctions to suppress disfavored pub­
+lications, some of which may or may not contain protected 
+speech (i.e., nonobscene material). See 372 U. S., at 64, 67. 
+Here, too, although Vullo can pursue violations of state in­
+surance law, she cannot do so in order to punish or suppress 
+the NRA's protected expression. So, the contention that the 
+NRA and the insurers violated New York law does not ex­
+cuse Vullo from allegedly employing coercive threats to stife 
+gun-promotion advocacy. 
+Vullo next argues that this case does not involve unconsti­
+tutional coercion because her challenged actions in fact tar­
+geted business practices and relationships, which qualify as 
+“nonexpressive activity.” Brief for Respondent 32. The 
+argument is misplaced. That Vullo “regulate[d]” business 
+activities stemming from the NRA's “relationships with in­
+surers and banks,” ibid., does not change the allegations that 
+her actions were aimed at punishing or suppressing speech. 
+In Bantam Books, the commission interfered with the busi­
+ness relationship between the distributor and the publishers 
+in order to suppress the publishers' disfavored speech. 372 
+U. S., at 66–71. Similarly, in Backpage.com, a sheriff inter­
+fered with a website's business relationships with payments-
+service providers in order to eliminate the website's “adult 
+nity in the administrative context, because Vullo did not raise this defense 
+below with respect to the First Amendment claim (or even with respect 
+to allegations unrelated to the consent decrees), the Court declines to con­
+sider that argument here in the frst instance. 
+
+Cite as: 602 U. S. 175 (2024) 
+197 
+Opinion of the Court 
+section” (if not the website itself). 807 F. 3d, at 230–232, 
+235–236. In that case, the sheriff wanted to “suffocat[e]” 
+the website, “depriving the company of ad revenues by scar­
+ing off its payments-service providers.” Id., at 231. “The 
+analogy,” the Seventh Circuit explained, “is to killing a per­
+son by cutting off his oxygen supply rather than by shooting 
+him.” Ibid. So too here. One can reasonably infer from 
+the complaint that Vullo coerced DFS-regulated entities to 
+cut their ties with the NRA in order to stife the NRA's gun-
+promotion advocacy and advance her views on gun control. 
+See, e.g., supra, at 191–194; App. to Pet. for Cert. 221, 230– 
+235, Complaint ¶¶67, 87–105. Vullo knew, after all, that the 
+NRA relied on insurance and fnancing “to disseminate its 
+message.” Id., at 231, ¶92; see id., at 203–204, ¶¶28–29.6 
+Lastly, Vullo falls back on the argument that a ruling in 
+the NRA's favor would interfere with the government's abil­
+ity to function properly. She claims that the NRA's position, 
+if accepted, would stife government speech and hamper le­
+gitimate enforcement efforts. This argument falls fat for 
+the simple reason that it requires the Court to accept Vullo's 
+limited reading of the complaint. The Court does not break 
+new ground in deciding this case. It only reaffrms the gen­
+eral principle from Bantam Books that where, as here, the 
+complaint plausibly alleges coercive threats aimed at punish­
+ing or suppressing disfavored speech, the plaintiff states a 
+First Amendment claim. 
+III 
+The NRA's allegations, if true, highlight the constitutional 
+concerns with the kind of intermediary strategy that Vullo 
+purportedly adopted to target the NRA's advocacy. Such a 
+strategy allows government offcials to “expand their regula­
+6 Vullo's boss, Governor Cuomo, also urged businesses to disassociate 
+with the NRA to put the organization “into fnancial jeopardy” and “shut 
+them down.” App. 21 (Aug. 3, 2018, tweet). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+198 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Opinion of the Court 
+tory jurisdiction to suppress the speech of organizations that 
+they have no direct control over.” Brief for First Amend­
+ment Scholars as Amici Curiae Supporting Petitioner 8. It 
+also allows government offcials to be more effective in their 
+speech-suppression efforts “[b]ecause intermediaries will 
+often be less invested in the speaker's message and thus less 
+likely to risk the regulator's ire.” Ibid. The allegations 
+here bear this out. Although “the NRA was not even the 
+directly regulated party,” Brief for Respondent 32, Vullo al­
+legedly used the power of her offce to target gun promotion 
+by going after the NRA's business partners. Insurers in 
+turn followed Vullo's lead, fearing regulatory hostility. 
+Nothing in this case gives advocacy groups like the NRA 
+a “right to absolute immunity from [government] investiga­
+tion,” or a “right to disregard [state or federal] laws.” Pat­
+terson, 357 U. S., at 463. Similarly, nothing here prevents 
+government offcials from forcefully condemning views with 
+which they disagree. For those permissible actions, the 
+Constitution “relies frst and foremost on the ballot box, not 
+on rules against viewpoint discrimination, to check the gov­
+ernment when it speaks.” Shurtleff v. Boston, 596 U. S. 243, 
+252 (2022). Yet where, as here, a government offcial makes 
+coercive threats in a private meeting behind closed doors, 
+the “ballot box” is an especially poor check on that offcial's 
+authority. Ultimately, the critical takeaway is that the First 
+Amendment prohibits government offcials from wielding 
+their power selectively to punish or suppress speech, directly 
+or (as alleged here) through private intermediaries. 
+*
+*
+* 
+For the reasons discussed above, the Court holds that the 
+NRA plausibly alleged that Vullo violated the First Amend­
+ment by coercing DFS-regulated entities to terminate their 
+business relationships with the NRA in order to punish or 
+suppress the NRA's advocacy. 
+
+Cite as: 602 U. S. 175 (2024) 
+199 
+Jackson, J., concurring 
+The judgment of the U. S. Court of Appeals for the Second 
+Circuit is vacated, and the case is remanded for further pro­
+ceedings consistent with this opinion.7 
+It is so ordered. 
+Justice Gorsuch, concurring. 
+I write separately to explain my understanding of the 
+Court's opinion, which I join in full. Today we reaffrm a 
+well-settled principle: “A government offcial cannot coerce 
+a private party to punish or suppress disfavored speech on 
+her behalf.” Ante, at 190. As the Court mentions, many 
+lower courts have taken to analyzing this kind of coercion 
+claim under a four-pronged “multifactor test.” 
+Ibid. 
+These tests, the Court explains, might serve “as a useful, 
+though nonexhaustive, guide.” Ante, at 191. But some­
+times they might not. Cf. Axon Enterprise, Inc. v. FTC, 
+598 U. S. 175, 205–207 (2023) (Gorsuch, J., concurring in 
+judgment). Indeed, the Second Circuit's decision to break 
+up its analysis into discrete parts and “tak[e] the [com­
+plaint's] allegations in isolation” appears only to have con­
+tributed to its mistaken conclusion that the National Rife As­
+sociation failed to state a claim. Ante, at 194. Lower courts 
+would therefore do well to heed this Court's directive: What­
+ever value these “guideposts” serve, they remain “just” that 
+and nothing more. Ante, at 191. “Ultimately, the critical” 
+question is whether the plaintiff has “plausibly allege[d] con­
+duct that, viewed in context, could be reasonably understood 
+to convey a threat of adverse government action in order to 
+punish or suppress the plaintiff's speech.” Ante, at 191, 198. 
+Justice Jackson, concurring. 
+Applying our decision in Bantam Books, Inc. v. Sullivan, 
+372 U. S. 58 (1963), the Court today explains that a “govern­
+7 On remand, the Second Circuit is free to reconsider whether Vullo is 
+entitled to qualifed immunity. 
+Page Proof Pending Publication
+
+200 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Jackson, J., concurring 
+ment offcial cannot coerce a private party to punish or sup­
+press disfavored speech on her behalf.” Ante, at 190. I 
+agree. I write separately to stress the important distinction 
+between government coercion, on the one hand, and a viola­
+tion of the First Amendment, on the other. 
+I 
+Coercion of a third party can be the means by which the 
+government violates the First Amendment rights of another. 
+But the fact of coercion, without more, does not state a First 
+Amendment claim. Rather, in addition to fnding that the 
+government has crossed a line from persuasion to coercion, 
+courts must assess how that coercion actually violates a 
+speaker's First Amendment rights. 
+Our decision in Bantam Books provides one example of 
+how government coercion of a third party can indirectly 
+bring about a First Amendment violation. As the majority 
+explains, ante, at 188–189, Bantam Books held that a Rhode 
+Island commission's efforts to coerce intermediary book dis­
+tributors into pulling certain publications from circulation 
+violated the First Amendment rights of the books' publish­
+ers, 372 U. S., at 61–62, 66–67. Even though the state com­
+mission had not itself “seized or banned” any books, “the 
+threat of invoking legal sanctions and other means of coer­
+cion, persuasion, and intimidation” against the distributors 
+“directly and designedly stopped the circulation of publica­
+tions in many parts of Rhode Island.” Id., at 67–68. 
+Essentially, the State's threats to third parties—the 
+distributors—erected through private hands an “effective 
+state regulation . . . of obscenity.” Id., at 69. And the gov­
+ernment could not escape responsibility for the distributors' 
+actions merely because the commission did not itself seize 
+any books. See id., at 66–67. 
+Notably, however, the government's coercion of the 
+distributors into doing its bidding was not—in and of 
+itself—what offended the First Amendment. Rather, by 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 175 (2024) 
+201 
+Jackson, J., concurring 
+threatening those third-party conduits of speech, the state 
+commission had effectively “subject[ed] the distribution of 
+publications to a system of prior administrative restraints” 
+lacking the requisite constitutional safeguards. Id., at 70. 
+Put another way, by exerting pressure on a third party, the 
+State had constructed a “system of informal censorship.” 
+Id., at 71. 
+The lesson of Bantam Books is that “a government offcial 
+cannot do indirectly what she is barred from doing directly.” 
+Ante, at 190. That case does not hold that government coer­
+cion alone violates the First Amendment. And recognizing 
+the distinction between government coercion and a First 
+Amendment violation is important because our democracy 
+can function only if the government can effectively enforce 
+the rules embodied in legislation; by its nature, such enforce­
+ment often involves coercion in the form of legal sanctions. 
+The existence of an allegation of government coercion of a 
+third party thus merely invites, rather than answers, the 
+question whether that coercion indirectly worked a violation 
+of the plaintiff's First Amendment rights. 
+II 
+Whether and how government coercion of a third party 
+might violate another party's First Amendment rights will 
+depend on the facts of the case. Indeed, under our prece­
+dents, determining whether government action violates the 
+First Amendment requires application of different doctrines 
+that vary depending on the circumstances. 
+Different 
+circumstances—who is being coerced to do what, and why— 
+may implicate different First Amendment inquiries. 
+In Bantam Books and many cases applying it, the coercion 
+and First Amendment inquiries practically merge. This is 
+because those cases tend to follow a similar fact pattern: The 
+plaintiff claims that the government coerced a distributor, 
+purveyor, or conduit of expression—like a billboard company, 
+television station, or book retailer—to shut down the speech 
+Page Proof Pending Publication
+
+202 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Jackson, J., concurring 
+of another party that relies on that distributor, purveyor, or 
+conduit to spread its message.* Coercing an entity in the 
+business of disseminating speech to stop disseminating some­
+one else's speech obviously implicates the First Amendment, 
+insofar as it may result in censorship similar to the prior 
+restraint identifed in Bantam Books. 
+But, in my view, that censorship theory is an awkward ft 
+with the facts of this case. According to the complaint, 
+Vullo coerced various regulated entities to cut business ties 
+with the National Rife Association (NRA). See ante, at 
+183–184. The NRA does not contend that its (concededly 
+unlawful) insurance products offered through those business 
+relationships were themselves “speech,” akin to a billboard, 
+a television ad, or a book. Nor does the complaint allege 
+that Vullo pressured the printer of American Rifeman (a 
+longstanding NRA periodical) to stop printing the magazine, 
+or coerced a convention center into canceling the NRA's an­
+nual meeting. See VDARE Foundation v. Colorado 
+Springs, 11 F. 4th 1151, 1157 (CA10 2021). In other words, 
+the effect of Vullo's alleged coercion of regulated entities on 
+the NRA's speech is signifcantly more attenuated here than 
+in Bantam Books or most decisions applying it. It is, for 
+instance, far from obvious that Vullo's conduct toward regu­
+lated entities established “a system of prior administrative 
+restraints” against the NRA's expression. Bantam Books, 
+372 U. S., at 70. 
+*See, e.g., Okwedy v. Molinari, 333 F. 3d 339, 340, 342–344 (CA2 2003) 
+(per curiam) (billboard company); R. C. Maxwell Co. v. New Hope, 735 
+F. 2d 85, 85–88 (CA3 1984) (same); American Family Assn., Inc. v. City 
+and County of San Francisco, 277 F. 3d 1114, 1119–1120 (CA9 2002) (tele­
+vision stations); Kennedy v. Warren, 66 F. 4th 1199, 1204–1205 (CA9 2023) 
+(online book retailer); Penthouse Int'l, Ltd. v. Meese, 939 F. 2d 1011, 1013– 
+1016 (CADC 1991) (convenience stores carrying pornographic magazines); 
+Hammerhead Enterprises, Inc. v. Brezenoff, 707 F. 2d 33, 34–38 (CA2 
+1983) (department stores carrying satirical board game); VDARE Founda­
+tion v. Colorado Springs, 11 F. 4th 1151, 1156–1157 (CA10 2021) (resort 
+hosting advocacy group conference). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 175 (2024) 
+203 
+Jackson, J., concurring 
+Of course, as the majority correctly observes, none of that 
+means that Vullo may target with impunity the NRA's “ `non-
+expressive' ” activity if she is doing so to punish the NRA 
+for its expression. See ante, at 196. But it does suggest 
+that our First Amendment retaliation cases might provide a 
+better framework for analyzing these kinds of allegations— 
+i.e., coercion claims that are not directly related to the publi­
+cation or distribution of speech. And, fortunately for the 
+NRA, the complaint in this case alleges both censorship 
+and retaliation theories for how Vullo violated the First 
+Amendment—theories that, in my opinion, deserve sepa­
+rate analyses. 
+“ `[A]s a general matter,' the First Amendment prohibits 
+government offcials from subjecting individuals to `retalia­
+tory actions' after the fact for having engaged in protected 
+speech.” Houston Community College System v. Wilson, 
+595 U. S. 468, 474 (2022) (quoting Nieves v. Bartlett, 587 U. S. 
+391, 398 (2019)). “[A] plaintiff pursuing a First Amendment 
+retaliation claim must show, among other things, that the 
+government took an `adverse action' in response to his 
+speech that `would not have been taken absent the retalia­
+tory motive.' ” Wilson, 595 U. S., at 477 (quoting Nieves, 
+587 U. S., at 399). Although our analysis has varied by con­
+text, see Lozman v. Riviera Beach, 585 U. S. 87, 96–99 
+(2018), we have generally required plaintiffs claiming First 
+Amendment retaliation to “establish a `causal connection' be­
+tween the government defendant's `retaliatory animus' and 
+the plaintiff 's `subsequent injury,' ” Nieves, 587 U. S., at 398 
+(quoting Hartman v. Moore, 547 U. S. 250, 259 (2006)). 
+Requiring that causal connection to a retaliatory motive is 
+important, because “[s]ome offcial actions adverse to . . . a 
+speaker might well be unexceptionable if taken on other 
+grounds.” Id., at 256. In this case, for example, analyzing 
+causation matters because much of Vullo's alleged conduct, 
+if not done for retaliatory reasons, might otherwise be legiti­
+mate enforcement of New York's insurance regulations. 
+
+204 NATIONAL RIFLE ASSOCIATION OF AMERICA v. VULLO 
+Jackson, J., concurring 
+How a retaliation analysis should proceed in this case was 
+not addressed below, so the Court rightly leaves that ques­
+tion unanswered today. But, importantly, any such analysis 
+requires more than asking simply whether the government's 
+actions crossed the threshold from permissible persuasion to 
+impermissible coercion. The NRA concedes that, at the 
+very least, our burden-shifting framework from Mt. Healthy 
+City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), likely applies. 
+See Reply Brief 16–17. Should that test govern, the NRA 
+would have to plausibly allege that a retaliatory motive was 
+a “ `substantial' ” or “ `motivating factor' ” in Vullo's targeting 
+of the regulated entities doing business with the NRA. Mt. 
+Healthy, 429 U. S., at 287. Vullo, in turn, could rebut that 
+allegation by showing that she would have taken the same 
+action “even in the absence of the [NRA's] protected con­
+duct.” Ibid.; see Lozman, 585 U. S., at 96 (“[E]ven if retali­
+ation might have been a substantial motive for the board's 
+action, still there was no liability unless the alleged constitu­
+tional violation was a but-for cause of the employment 
+termination”). 
+*
+*
+* 
+The NRA's complaint advances both censorship and retali­
+ation claims, yet the lower courts in this case lumped these 
+claims together and ultimately focused almost exclusively on 
+whether Vullo's conduct was coercive. See ante, at 185–186. 
+Consequently, the strength of the NRA's claim under the Mt. 
+Healthy framework has received little attention thus far. 
+On remand, the parties and lower courts should consider the 
+censorship and retaliation theories independently, mindful of 
+the distinction between government coercion and the ways 
+in which such coercion might (or might not) have violated 
+the NRA's constitutional rights. That analysis can and 
+should likewise consider which First Amendment framework 
+best captures the NRA's allegations in this case. See, e.g., 
+VDARE, 11 F. 4th, at 1159–1175 (separately analyzing cen­
+sorship and retaliation claims). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
diff --git a/corpus/law/text/1cc4fe6881c50354.txt b/corpus/law/text/1cc4fe6881c50354.txt
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@@ -0,0 +1,3 @@
+LEI DE PROPRIEDADE INDUSTRIAL: PARÁGRAFO ÚNICO DO ARTIGO 40 DA LEI 9.279/96 E ACESSO A MEDICAMENTOS GENÉRICOS
+
+A pesquisa tem por objeto analisar os efeitos da aplicação do parágrafo único do art. 40 da Lei de Propriedade Industrial, que confere possibilidade de prorrogação da vigência da patente, em relação ao acesso aos medicamentos genéricos. Apresenta algumas reflexões sobre a proteção da propriedade intelectual enquanto direito fundamental. Verifica a situação do processo de análise de pedidos de patentes, de responsabilidade do Instituto Nacional de Propriedade Industrial (INPI), como forma de entender o que levou o legislador a introduzir o referido parágrafo único no art. 40 da Lei de Propriedade Industrial, especialmente no que se refere aos medicamentos genéricos. O método utilizado é o dedutivo, com base na revisão bibliográfica da legislação, doutrina e jurisprudência. Conclui que o parágrafo único do artigo 40 da Lei de Propriedade Industrial, que buscou minimizar os prejuízos dos autores de inventos em face da morosidade no processamento dos pedidos de patentes pelo INPI, que deveria ocorrer apenas em casos excepcionais, é aplicado sistematicamente em face da questão do backlog, retardando a entrada de novos medicamentos genéricos no mercado e, consequentemente, impedindo um maior acesso da população aos medicamentos genéricos, em regra mais baratos, seguros e eficazes que os remédios tradicionais.
\ No newline at end of file
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+PRELIMINARY PRINT 
+Volume 605 U. S. Part 1 
+Pages 73–90 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 15, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2024 
+73 
+Syllabus 
+BARNES, individually and as representative of the 
+ESTATE OF BARNES, DECEASED v. FELIX et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 23–1239. Argued January 22, 2025—Decided May 15, 2025 
+Respondent Roberto Felix, Jr., a law enforcement offcer, pulled over Ash­
+tian Barnes for suspected toll violations. Felix ordered Barnes to exit 
+the vehicle, but Barnes began to drive away. As the car began to move 
+forward, Felix jumped onto its doorsill and fred two shots inside. 
+Barnes was fatally hit but managed to stop the car. About fve seconds 
+elapsed between when the car started moving and when it stopped. 
+Two seconds passed between the moment Felix stepped on the doorsill 
+and the moment he fred his frst shot. 
+Barnes's mother sued Felix on Barnes's behalf, alleging that Felix 
+violated Barnes's Fourth Amendment right against excessive force. 
+The District Court granted summary judgment to Felix, applying the 
+Fifth Circuit's “moment-of-threat” rule. The Court of Appeals af­
+frmed, explaining that the moment-of-threat rule requires asking only 
+whether an offcer was “in danger at the moment of the threat that 
+resulted in [his] use of deadly force.” 91 F. 4th 393, 397. Under the 
+rule, events “leading up to the shooting” are “not relevant.” Ibid. 
+Here, the “precise moment of the threat” was the “two seconds” when 
+Felix was clinging to a moving car. Id., at 397–398. Because Felix 
+could then have reasonably believed his life in danger, the panel held, 
+the shooting was lawful. Id., at 398. 
+Held: A claim that a law enforcement offcer used excessive force during 
+a stop or arrest is analyzed under the Fourth Amendment, which re­
+quires that the force deployed be objectively reasonable from “the per­
+spective of a reasonable offcer on the scene.” Graham v. Connor, 490 
+U. S. 386, 396. The inquiry into the reasonableness of police force re­
+quires analyzing the “totality of the circumstances.” County of Los 
+Angeles v. Mendez, 581 U. S. 420, 427–428; Tennessee v. Garner, 471 U. S. 
+1, 9. That analysis demands “careful attention to the facts and circum­
+stances” relating to the incident. Graham, 490 U. S., at 396. 
+Most notable here, the “totality of the circumstances” inquiry has no 
+time limit. While the situation at the precise time of the shooting will 
+often matter most, earlier facts and circumstances may bear on how a 
+reasonable offcer would have understood and responded to later ones. 
+Prior events may show why a reasonable offcer would perceive other­
+
+Page Proof Pending Publication
+74 
+BARNES v. FELIX 
+Syllabus 
+wise ambiguous conduct as threatening, or instead as innocuous. 
+Plumhoff v. Rickard, 572 U. S. 765, well illustrates this point. There, 
+an offcer's use of deadly force was justifed “at the moment” partly 
+because of what had transpired in the preceding period. Id., at 777. 
+The moment-of-threat rule applied below prevents that sort of atten­
+tion to context, and thus conficts with this Court's instruction to ana­
+lyze the totality of the circumstances. By limiting their view to the 
+two seconds before the shooting, the lower courts could not take into 
+account anything preceding that fnal moment. So, for example, they 
+could not consider the reasons for the stop or the earlier interactions 
+between the suspect and offcer. And because of that limit, they could 
+not address whether the fnal two seconds of the encounter would look 
+different if set within a longer timeframe. A rule like that, which pre­
+cludes consideration of prior events in assessing a police shooting, is not 
+reconcilable with the fact-dependent and context-sensitive approach this 
+Court has prescribed. A court deciding a use-of-force case cannot re­
+view the totality of the circumstances if it has put on chronological 
+blinders. 
+The Court does not address a separate question about whether or 
+how an offcer's own “creation of a dangerous situation” factors into the 
+reasonableness analysis. The courts below never confronted that issue, 
+and it was not the basis of the petition for certiorari. Pp. 79–84. 
+91 F. 4th 393, vacated and remanded. 
+Kagan, J., delivered the opinion for a unanimous Court. Kavanaugh, 
+J., fled a concurring opinion, in which Thomas, Alito, and Barrett, JJ., 
+joined, post, p. 84. 
+Nathaniel A. G. Zelinsky argued the cause for petitioner. 
+With him on the briefs were Katherine B. Wellington, Neal 
+Kumar Katyal, and Adam W. Fomby. 
+Zoe A. Jacoby argued the cause for the United States as 
+amicus curiae supporting vacatur and remand. With her 
+on the brief were Solicitor General Prelogar, Assistant At­
+torney General Clarke, Principal Deputy Assistant Attor­
+neys General Argentieri and Boynton, Deputy Solicitor 
+General Feigin, Thomas Booth, and Teresa Kwong. 
+Charles L. McCloud argued the cause for respondents. 
+With him on the brief were Lisa S. Blatt, Peter S. Jorgensen, 
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+75 
+Counsel 
+Erin M. Sielaff, and Judith Ramsey Saldana. Lanora C. 
+Pettit, Principal Deputy Solicitor General of Texas, argued 
+the cause for Texas et al. as amici curiae supporting re­
+spondent Felix.* 
+*Briefs of amici curiae urging reversal were fled for the Cato Institute 
+et al. by Clark M. Neily III, Matthew P. Cavedon, and Michael Z. Fox; 
+for the Constitutional Accountability Center by Elizabeth B. Wydra, Bri­
+anne J. Gorod, David H. Gans, and Brian R. Frazelle; for Current and 
+Former Law Enforcement Officials by Elizabeth C. Rinehart, Barry 
+Friedman, Aaron Scherzer, and Josh Parker; for the Due Process Insti­
+tute et al. by Douglas E. Litvack and Shana-Tara O'Toole; for the Giffords 
+Law Center to Prevent Gun Violence et al. by Maureen P. Alger, Emily 
+J. Born, Douglas N. Letter, Shira Lauren Feldman, Kristen A. Johnson, 
+Amanda Liverzani, Esther Sanchez-Gomez, and Leigh Rome; for the In­
+stitute for American Policing Reform by Chantale Fiebig, Joshua M. 
+Wesneski, Stephanie Adamakos, and Steven Reiss; for the National Police 
+Accountability Project by Dana E. Foster; for the National Urban League 
+et al. by Rachel A. Chung, Janai S. Nelson, Kevin E. Jason, Jin Hee Lee, 
+and Melissa C. Cassel; for The Rutherford Institute by Angela M. Liu, 
+John W. Whitehead, and Christopher J. Merken; for the Southern Border 
+Communities Coalition by Delia Addo-Yobo and Roxanna Altholz; for the 
+Southern Poverty Law Center by Arthur Ago and Krista A. Dolan; and 
+for the Texas Civil Rights Project by Daniel N. Guisbond. Raff Melkon­
+ian fled a brief for the Color of Change as amicus curiae urging vacatur. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Texas et al. by Ken Paxton, Attorney General of Texas, Brent Webster, 
+First Assistant Attorney General, Aaron L. Nielson, Solicitor General, 
+Lanora C. Pettit, Principal Deputy Solicitor General, Kateland R. Jack­
+son, Assistant Solicitor General, and Brendan A. Fugere, Assistant Attor­
+ney General, and by the Attorneys General for their respective States as 
+follows: Steve Marshall of Alabama, Tim Griffn of Arkansas, Chris Carr 
+of Georgia, Theodore E. Rokita of Indiana, Brenna Bird of Iowa, Liz Mur­
+rill of Louisiana, Lynn Fitch of Mississippi, Austin Knudsen of Montana, 
+Michael T. Hilgers of Nebraska, Drew Wrigley of North Dakota, Alan 
+Wilson of South Carolina, Marty Jackley of South Dakota, Jonathan Skr­
+metti of Tennessee, and Jason Miyares of Virginia; for the Los Angeles 
+County Police Chiefs' Association by J. Scott Tiedemann and David A. 
+Urban; for the National Fraternal Order of Police by Larry H. James; for 
+the National Police Association et al. by Jeffrey C. Hendrickson and Rob­
+ert S. Lafferrandre; for the Peace Offcers Research Association of Califor­
+
+76 
+BARNES v. FELIX 
+Opinion of the Court 
+Justice Kagan delivered the opinion of the Court. 
+A police offcer's use of deadly force violates the Fourth 
+Amendment when it is not “objectively reasonable.” Gra­
+ham v. Connor, 490 U. S. 386, 397 (1989). And that inquiry 
+into reasonableness, we have held, requires assessing the 
+“totality of the circumstances.” Id., at 396 (quoting Tennes­
+see v. Garner, 471 U. S. 1, 9 (1985)). 
+The question here is whether that framework permits 
+courts, in evaluating a police shooting (or other use of force), 
+to apply the so-called moment-of-threat rule used in the 
+courts below. Under that rule, a court looks only to the cir­
+cumstances existing at the precise time an offcer perceived 
+the threat inducing him to shoot. Today, we reject that 
+approach as improperly narrowing the requisite Fourth 
+Amendment analysis. To assess whether an offcer acted 
+reasonably in using force, a court must consider all the rele­
+vant circumstances, including facts and events leading up to 
+the climactic moment. 
+I 
+On the afternoon of April 28, 2016, Roberto Felix, Jr., a 
+law enforcement offcer patrolling a highway outside Hous­
+ton, received a radio alert about an automobile on the road 
+with outstanding toll violations. Felix soon spotted the car, 
+a Toyota Corolla, and turned on his emergency lights to initi­
+ate a traffc stop. The driver, Ashtian Barnes, pulled over 
+to the highway's shoulder. 
+nia et al. by Timothy K. Talbot, Michael A. Morguess, and David E. Mas­
+tagni; and for the Texas Municipal League Intergovernmental Risk Pool 
+et al. by Laura O'Leary and Francisco J. Valenzuela. 
+Briefs of amici curiae were fled for the California State Sheriffs' Asso­
+ciation et al. by James R. Touchstone and Scott Wm. Davenport; for the 
+National Sheriffs' Association by Gregory C. Champagne and Maurice E. 
+Bostick; for Restore the Fourth, Inc., by Mahesha P. Subbaraman; for the 
+Wisconsin Coalition of Law Enforcement et al. by Remzy D. Bitar; and 
+for Seth W. Stoughton by J. Carl Cecere. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+77 
+Opinion of the Court 
+Parking his own car just behind, Felix walked to the Co­
+rolla's driver-side door and asked Barnes for his license and 
+proof of insurance. Barnes replied that he did not have his 
+license with him, and that the car was a rental in his girl­
+friend's name. As he spoke, Barnes rummaged through 
+some papers inside the car, causing Felix to tell him several 
+times to stop “digging around.” Felix also commented that 
+he smelled marijuana, and asked if there was anything in the 
+car he should know about. Barnes responded that he might 
+have some identifcation in the trunk. So Felix told him to 
+open the trunk from his seat. Barnes did so, while also 
+turning off the ignition. All that happened (as a dashcam 
+recording of the incident shows) in less than two minutes. 
+Then things began moving even faster. With his right 
+hand resting on his holster, Felix told Barnes to get out of 
+the car. Barnes opened the door but did not exit; instead, 
+he turned the ignition back on. Felix unholstered his gun 
+and, as the car began to move forward, jumped onto its door-
+sill. He twice shouted, “Don't fucking move.” And with no 
+visibility into the car (because his head was above the roof), 
+he fred two quick shots inside. Barnes was hit, but man­
+aged to stop the car. Felix then radioed for back-up. By 
+the time it arrived, Barnes was dead. All told, about fve 
+seconds elapsed between when the car started moving and 
+when it stopped. And within that period, two seconds 
+passed between the moment Felix stepped on the doorsill 
+and the moment he fred his frst shot. 
+Barnes's mother, Janice Barnes, sued Felix on her son's 
+behalf. The suit, brought under 42 U. S. C. § 1983, alleged 
+that Felix had violated Ashtian Barnes's Fourth Amendment 
+rights by using excessive force against him. 
+The District Court granted summary judgment to Felix. 
+The court explained that to prevail on her claim, Mrs. Barnes 
+needed to show that Felix's use of force was “objectively un­
+reasonable.” 532 F. Supp. 3d 463, 468 (SD Tex. 2021). In 
+
+78 
+BARNES v. FELIX 
+Opinion of the Court 
+the usual excessive-force case, the court noted, the inquiry 
+into reasonableness would involve considering a variety of 
+circumstances. See id., at 468–469. But when an offcer 
+has used deadly force, the court continued, “the Fifth Circuit 
+has developed a much narrower approach.” Id., at 469. 
+Then, a court could ask only about the situation existing “at 
+the moment of the threat” that sparked the fatal shooting. 
+Ibid. (quoting Rockwell v. Brown, 664 F. 3d 985, 991 (CA5 
+2011); emphasis in original). The District Court identifed 
+that moment as “the two seconds before Felix fred his frst 
+shot,” when he was standing on the doorsill of a moving vehi­
+cle. 532 F. Supp. 3d, at 471. At that moment, the court 
+found, an offcer could reasonably think himself “at risk of 
+serious harm.” Id., at 472. And under the Fifth Circuit's 
+rule, that fact alone concluded the analysis. The court ex­
+plained that it could not consider “what had transpired up 
+until” those last two seconds, including Felix's decision to 
+jump onto the sill. Id., at 471. Although a “more robust 
+examination” might have aided in assessing the reasonable­
+ness of the shooting, the court was “duty bound” by “Circuit 
+precedent” to “limit[ its] focus” to the “exact moment Felix 
+was hanging onto Barnes's” moving car. Id., at 472. 
+The Court of Appeals affrmed, explaining that it too was 
+“[b]ound” by “this Circuit's moment of threat doctrine.” 91 
+F. 4th 393, 394, 397 (2024). Under that rule, the panel 
+agreed, the “inquiry is confned to whether the offcer[ ]” was 
+“in danger at the moment of the threat that resulted in [his] 
+use of deadly force.” Id., at 397. Any prior events “leading 
+up to the shooting,” including actions the offcer took, were 
+simply “not relevant.” Ibid. (quoting Harris v. Serpas, 745 
+F. 3d 767, 772 (CA5 2014)). And here, as the District Court 
+found, the “precise moment of the threat” was the “two sec­
+onds” when Felix was clinging to a moving car. 91 F. 4th, 
+at 397–398. Because Felix could then have reasonably be­
+lieved his life in danger, the panel concluded, his decision to 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 73 (2025) 
+79 
+Opinion of the Court 
+shoot “did not violate Barnes's constitutional rights.” Id., 
+at 398. 
+In a concurring opinion, Judge Higginbotham (who also 
+authored the panel opinion) expressed “concern” with the 
+Fifth Circuit's moment-of-threat doctrine. 
+Ibid. 
+He 
+thought that rule inconsistent with this Court's directive to 
+assess the reasonableness of an offcer's use of force, includ­
+ing deadly force, by “look[ing] to the totality of circum­
+stances.” Id., at 399. Under the totality approach, Judge 
+Higginbotham wrote, a court could consider not just the 
+“precise millisecond” when an offcer deploys force, but ev­
+erything that “ha[d] transpired up until” that time. Ibid. 
+And with that wider focus, Judge Higginbotham would have 
+found that Felix's shooting of Barnes was unreasonable. 
+See id., at 401. 
+We granted certiorari to address whether, in resolving 
+Fourth Amendment excessive-force claims, courts may apply 
+the moment-of-threat rule just described. See 603 U. S. 949 
+(2024). We hold they may not because that rule con­
+stricts the proper inquiry into the “totality of the 
+circumstances.” 
+II 
+A claim that a law enforcement offcer used excessive force 
+during a stop or arrest is “analyzed under the Fourth 
+Amendment.” Graham, 490 U. S., at 395; see Amdt. 4 
+(applying to “seizures” of “persons”). The “touchstone of 
+the Fourth Amendment is `reasonableness,' ” as measured in 
+objective terms. Brigham City v. Stuart, 547 U. S. 398, 403 
+(2006). So the question in a case like this one, as this Court 
+has often held, is whether the force deployed was justifed 
+from “the perspective of a reasonable offcer on the scene,” 
+taking due account of both the individual interests and the 
+governmental interests at stake. Graham, 490 U. S., at 396; 
+County of Los Angeles v. Mendez, 581 U. S. 420, 428 (2017). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+80 
+BARNES v. FELIX 
+Opinion of the Court 
+That inquiry into the reasonableness of police force re­
+quires analyzing the “totality of the circumstances.” Id., at 
+427–428; Garner, 471 U. S., at 9. There is no “easy-to-apply 
+legal test” or “on/off switch” in this context. Scott v. 
+Harris, 550 U. S. 372, 382–383 (2007). Rather, the Fourth 
+Amendment requires, as we once put it, that a court “slosh 
+[its] way through” a “factbound morass.” Id., at 383. Or 
+said more prosaically, deciding whether a use of force was 
+objectively reasonable demands “careful attention to the 
+facts and circumstances” relating to the incident, as then 
+known to the offcer. Graham, 490 U. S., at 396. For exam­
+ple, the “severity of the crime” prompting the stop can carry 
+weight in the analysis. See ibid.; Garner, 471 U. S., at 11. 
+So too can actions the offcer took during the stop, such as 
+giving warnings or otherwise trying to control the encoun­
+ter. See id., at 12; Kingsley v. Hendrickson, 576 U. S. 389, 
+397 (2015). And the stopped person's conduct is always rele­
+vant because it indicates the nature and level of the threat 
+he poses, either to the offcer or to others. See ibid.; Gra­
+ham, 490 U. S., at 396. 
+Most notable here, the “totality of the circumstances” in­
+quiry into a use of force has no time limit. Of course, the 
+situation at the precise time of the shooting will often be 
+what matters most; it is, after all, the offcer's choice in that 
+moment that is under review. But earlier facts and circum­
+stances may bear on how a reasonable offcer would have 
+understood and responded to later ones. Or as the Federal 
+Government puts the point, those later, “in-the-moment” 
+facts “cannot be hermetically sealed off from the context in 
+which they arose.” Brief for United States as Amicus Cu­
+riae 14. Taking account of that context may beneft either 
+party in an excessive-force case. Prior events may show, 
+for example, why a reasonable offcer would have perceived 
+otherwise ambiguous conduct of a suspect as threatening. 
+Or instead they may show why such an offcer would have 
+perceived the same conduct as innocuous. The history of 
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+81 
+Opinion of the Court 
+the interaction, as well as other past circumstances known 
+to the offcer, thus may inform the reasonableness of the use 
+of force. 
+The Court's decision in Plumhoff v. Rickard, 572 U. S. 765 
+(2014), well illustrates the point. The excessive-force claim 
+there concerned the fatal shooting of a driver at the end of 
+a “dangerous car chase” lasting more than fve minutes. Id., 
+at 768. The driver had sped away from a traffc stop on a 
+well-used road, and tried to outrun as many as six police 
+cruisers at speeds sometimes exceeding 100 miles per hour. 
+Eventually, the feeing car ran into one of the cruisers and 
+came “to a near standstill.” Id., at 776. The driver, 
+though, still tried to escape, pumping the gas in a way that 
+sent his wheels “spinning” and then putting the car into re­
+verse. Ibid. At that point, one of the offcers fred several 
+shots into the car. In a suit brought against the offcer, the 
+driver's daughter contended that those shots were taken 
+when the chase was “already over.” Id., at 777. But this 
+Court rejected that claim based on everything that had hap­
+pened during the incident—the driver's “outrageously reck­
+less” behavior over the prior “fve minutes,” as well as his 
+last-second efforts to again take fight. Id., at 776. Given 
+all of those events, the Court explained, a reasonable offcer 
+would have concluded that the driver was “intent on resum­
+ing” his getaway and, if allowed to do so, would “again pose 
+a deadly threat for others.” Id., at 777. In short, the 
+shooting was justifed “at the moment” it occurred partly 
+because of what had transpired in the preceding period. 
+Ibid. 
+The moment-of-threat rule applied in the courts below pre­
+vents that sort of attention to context, and thus conficts with 
+this Court's instruction to analyze the totality of the circum­
+stances. Recall that the District Court and Fifth Circuit 
+limited their view to the two seconds before the shooting, 
+after Felix had stepped onto the doorsill of Barnes's car. See 
+supra, at 78–79. Those courts believed that, under Fifth 
+
+82 
+BARNES v. FELIX 
+Opinion of the Court 
+Circuit precedent, they could not take into account anything 
+preceding that fnal moment. See 532 F. Supp. 3d, at 471 
+(excluding analysis of “what had transpired up until the 
+shooting itself”); 91 F. 4th, at 397 (agreeing that “actions 
+leading up to the shooting are not relevant”). So, for exam­
+ple, they could not consider the reasons for the stop or the 
+earlier conduct of, and interactions between, the suspect and 
+offcer. And because of that limit, they could not address 
+whether the fnal two seconds of the encounter would look 
+different if set within a longer timeframe. It is as though 
+the Court in Plumhoff could consider only the instant when 
+the chased car was at a “near standstill,” and not the earlier 
+time when it zigzagged down a busy roadway at speed. 572 
+U. S., at 776. To be sure, historical facts will not often mat­
+ter as much as they did there to the reasonableness analysis. 
+See supra, at 81. And some of those facts may not be rele­
+vant at all. But no rule that precludes consideration of 
+prior events in assessing a police shooting is reconcilable 
+with the fact-dependent and context-sensitive approach we 
+have prescribed. A court deciding a use-of-force case can­
+not review the totality of the circumstances if it has put on 
+chronological blinders. 
+That point is so evident that not even Felix quarrels with 
+it; his defense of the decisions below instead relies on taking 
+a different view of their meaning and of the question they 
+raise. First, the agreement with what we have said: Yes, 
+Felix acknowledges, prior events are not “off limits” in the 
+reasonableness inquiry, for they may “inform the perspective 
+of the reasonable offcer.” Tr. of Oral Arg. 79; Brief for Re­
+spondent 2. Just so. But now the divergence: According to 
+Felix, the courts below acted consistently with that all-times­
+considered principle. The Fifth Circuit's moment-of-threat 
+doctrine, Felix argues, in fact allows courts to assess many 
+pre-shooting facts and circumstances—and courts applying it 
+often do so. See id., at 20 (citing other Fifth Circuit deci­
+sions). All that the doctrine bars is a single kind of in­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+83 
+Opinion of the Court 
+quiry—into whether an offcer's earlier error itself “created 
+the need for deadly force.” Id., at 21; see Tr. of Oral Arg. 
+53. And on that issue, Felix submits, the Fifth Circuit is 
+right: “[A]n offcer doesn't lose his right to defend himself 
+just because” he previously “made a mistake.” Ibid. 
+But whatever might be said of Fifth Circuit law generally, 
+the decisions below applied a rule about timing. As shown 
+above, both lower courts took pains to explain that, in evalu­
+ating the shooting's reasonableness, they could look only to 
+a two-second snippet of the encounter. See supra, at 78–79. 
+And because that was the reasoning in the case before us, 
+that is the reasoning we must address. It could make no 
+difference to our decision here if the Fifth Circuit in other 
+cases eschewed a strict time limit, as Felix claims. And 
+anyway, we are not sure Felix correctly describes the overall 
+state of Fifth Circuit law. Consider Harris v. Serpas—a 
+Fifth Circuit decision relied on below. See 91 F. 4th, at 397. 
+The court there noted the plaintiffs' recital of several histori­
+cal facts—actions of both the suspect and the offcer in the 
+period prior to the shooting. See 745 F. 3d, at 772. And 
+the court recognized that this Court's decisions directed an 
+inquiry into the “the `totality of the circumstances.' ” Ibid. 
+(quoting Graham, 490 U. S., at 396). But then came the fol­
+lowing: “This [Circuit], however, has narrowed that test” in 
+deadly force cases, holding that the inquiry there is “confned 
+to whether the [offcer] was in danger at the moment of the 
+threat that resulted in the [offcer's] shooting.” Ibid. (alter­
+ations in original). The problem with the statement is ap­
+parent. As we have explained, a court cannot thus “narrow” 
+the totality-of-the-circumstances inquiry, to focus on only a 
+single moment. It must look too, in this and all excessive-
+force cases, at any relevant events coming before. 
+We do not address here the different question Felix raises 
+about use-of-force cases: whether or how an offcer's own “cre­
+ation of a dangerous situation” factors into the reasonableness 
+analysis. Brief for Respondent 22; see supra, at 82–83. 
+
+84 
+BARNES v. FELIX 
+Kavanaugh, J., concurring 
+As in another of our recent Fourth Amendment cases, that 
+issue is not properly before us. See Mendez, 581 U. S., at 
+429, n. The courts below never confronted the issue, pre­
+cisely because their inquiry was so time-bound. In looking 
+at only the two seconds before the shot, they excluded from 
+view any actions of the offcer that allegedly created the dan­
+ger necessitating deadly force. See supra, at 78–79. So, to 
+use the obvious example, the courts below did not address 
+the relevance, if any, of Felix stepping onto the doorsill of 
+Barnes's car. And because they never considered that issue, 
+it was not the basis of the petition for certiorari. The 
+question presented to us was one of timing alone: whether 
+to look only at the encounter's fnal two seconds, or also to 
+consider earlier events serving to put those seconds in 
+context. 
+With that matter resolved, we return everything else to 
+the courts below. It is for them now to consider the reason­
+ableness of the shooting, using the lengthier timeframe we 
+have prescribed. 
+Accordingly, we vacate the judgment of the Court of Ap­
+peals and remand the case for further proceedings consistent 
+with this opinion. 
+It is so ordered. 
+Justice Kavanaugh, with whom Justice Thomas, Jus­
+tice Alito, and Justice Barrett join, concurring. 
+I join the Court's opinion. I agree that the offcer's ac­
+tions during the traffc stop in this case should be assessed 
+based on the totality of the circumstances. I write sepa­
+rately to add a few points about the dangers of traffc stops 
+for police offcers, particularly when as here the driver pulls 
+away in the midst of the stop. 
+Even for routine traffic violations, traffic stops are 
+“fraught with danger to police offcers.” Michigan v. Long, 
+463 U. S. 1032, 1047 (1983). An “inordinate risk confront[s] 
+an offcer as he approaches a person seated in an automo­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+85 
+Kavanaugh, J., concurring 
+bile.” Pennsylvania v. Mimms, 434 U. S. 106, 110 (1977) 
+(per curiam). That is in part because offcers operate at a 
+“tactical disadvantage” when “approaching an unknown ve­
+hicle, with limited visibility and unpredictable threats.” 
+Brief for National Fraternal Order of Police as Amicus Cu­
+riae 4. As this Court noted nearly 50 years ago, “a signif­
+cant percentage of murders of police offcers occurs when the 
+offcers are making traffc stops.” Mimms, 434 U. S., at 110 
+(quoting United States v. Robinson, 414 U. S. 218, 234, n. 5 
+(1973)). Traffc stops remain highly dangerous today. See 
+Dept. of Justice, Federal Bureau of Investigation, Law En­
+forcement Offcers Killed and Assaulted, 2023 (2024) (Table 
+27). On April 8, 2023, two offcers were shot and killed at 
+an intersection in Cameron, Wisconsin, after stopping a car 
+for a warrant and welfare check on the driver.1 
+On Decem­
+ber 8, 2024, an offcer was shot and killed after he pulled 
+over a pickup truck with expired license plates in a Super 8 
+motel parking lot in Terrell, Texas. See Brief for State of 
+Texas et al. as Amici Curiae 1, and n. 4. The list goes on 
+and on.2 
+Offcers cannot let their guard down and assume that any 
+particular traffc stop will be safe—even if a driver is pulled 
+over for nothing more than a speeding violation, a broken 
+taillight, or the like. The driver may be drunk, on drugs, 
+armed, or some combination thereof. Or the driver may 
+have committed (or may be about to commit) a serious crime. 
+“People detained for minor offenses” such as ordinary traffc 
+violations “can turn out to be the most devious and danger­
+1 See Offcer Down Memorial Page, Police Offcer Emily Ann Breidenbach, 
+https://www.odmp.org/officer/26693-police-officer-emily-ann-breidenbach; 
+Offcer Down Memorial Page, Police Offcer Hunter Timothy Scheel, https:// 
+www.odmp.org/offcer/26694-police-offcer-hunter-timothy-scheel. 
+2 To be sure, offcers sometimes use excessive force during traffc stops. 
+When that happens, offcers of course should be held to account for their 
+actions. See Brief for Current and Former Law Enforcement Offcials as 
+Amici Curiae 22; Brief for California State Sheriffs' Association et al. as 
+Amici Curiae 10. 
+
+Page Proof Pending Publication
+86 
+BARNES v. FELIX 
+Kavanaugh, J., concurring 
+ous criminals.” Florence v. Board of Chosen Freeholders of 
+County of Burlington, 566 U. S. 318, 334 (2012). Timothy 
+McVeigh, the man responsible for the 1995 Oklahoma City 
+bombing, was stopped for a missing license plate, which ulti­
+mately led to his apprehension for the bombing. See ibid. 
+Likewise, serial killer Ted Bundy was pulled over based on 
+a stolen-vehicle alert in Pensacola, Florida. When informed 
+that he was under arrest, Bundy kicked the offcer's legs out 
+from under him, and the two struggled over the offcer's gun 
+before the offcer was able to subdue and arrest Bundy. See 
+Bundy v. Dugger, 850 F. 2d 1402, 1422 (CA11 1988); see 
+also Brief for State of Texas et al. as Amici Curiae 11–12, 
+and n. 12. 
+So even though most traffc stops end without incident, 
+traffc stops are nonetheless inherently risky for police off­
+cers. And when, as in this case, the driver suddenly pulls 
+away in the midst of a stop, the risks multiply. A driver 
+speeding away from a traffc stop could easily endanger by­
+standers and other drivers—especially if the feeing driver 
+is under the infuence of alcohol or drugs, as might well be 
+the case when a driver fees. Moreover, the very “fact that 
+a suspect fees when suspected of a minor offense,” such as 
+speeding or a failure to pay tolls, “could well be indicative of 
+a larger danger.” Lange v. California, 594 U. S. 295, 331 
+(2021) (Roberts, C. J., concurring in judgment). Fleeing 
+from the traffc stop could suggest that the driver is prepar­
+ing to commit or has committed a more serious crime—and 
+is attempting to evade detection or arrest. The driver may 
+have illegal drugs or an illegal gun in the car. Or the driver 
+may be unlawfully in the country and fear removal if appre­
+hended. He might have a warrant out for his arrest. He 
+could have an abducted child in the car. See Tr. of Oral Arg. 
+18. Or as the tragic 2025 New Year's terrorist attack in 
+New Orleans illustrates, the driver might intend to use the 
+car as a weapon. See id., at 24. 
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 73 (2025) 
+87 
+Kavanaugh, J., concurring 
+The possibilities are many. But the key point is a com­
+monsense one: A driver who speeds away from a traffc stop 
+can pose signifcant dangers to both the offcer and the sur­
+rounding community. 
+The question when a driver fees, therefore, is not merely 
+whether the underlying traffc violation “presents risks to 
+public safety”—it is also “whether fight,” and what that 
+fight might indicate or enable, “does so.” Lange, 594 U. S., 
+at 331 (Roberts, C. J., concurring in judgment). In those 
+circumstances, in other words, it is not only the “severity of 
+the crime” that prompted the stop that is relevant to the 
+“totality of the circumstances” inquiry. Graham v. Connor, 
+490 U. S. 386, 396 (1989) (quotation marks omitted). The 
+Fourth Amendment analysis must also take account of the 
+suspect's attempt “to evade” the offcer “by fight.” Ibid. 
+What should the offcer do when a driver fees from a traf­
+fc stop? There are no easy or risk-free answers. Every 
+feasible option poses some potential danger to the offcer, the 
+driver, or the public at large—and often to all three. And 
+an offcer in that situation must make a split-second choice 
+among those various dangerous options. 
+First, the offcer could simply let the driver go. But be­
+cause the feeing driver might be a threat to the community, 
+letting the driver go may exacerbate the dangers, rather 
+than mitigate them. Encouraging offcers to stand back and 
+allow drivers to take off would also create “perverse incen­
+tives” for those who are stopped by the police. Scott v. Har­
+ris, 550 U. S. 372, 385 (2007). If doing nothing in response 
+to a feeing driver became a known and regular practice 
+among police offcers, that would presumably embolden some 
+drivers who otherwise might have thought twice about tak­
+ing off. 
+Of course, the offcer could let the driver go in the moment 
+but then attempt to catch the driver by, for example, track­
+ing the car's license plate or reviewing surveillance footage. 
+See Tr. of Oral Arg. 8. But after letting the driver go, the 
+
+88 
+BARNES v. FELIX 
+Kavanaugh, J., concurring 
+police may not be able to later track down the car or the 
+driver of the car. Even if the police are able to do so, the 
+escaped driver may pose a serious risk to the public in the 
+interim. And given that the driver has already shown a 
+propensity to evade law enforcement by feeing a traffc stop, 
+attempting to execute an arrest upon fnding the driver could 
+itself be dangerous for the police and others. 
+Second, the offcer could get back in his police car and give 
+chase, or could radio other offcers to pursue the driver. But 
+a high-speed chase likewise can be exceptionally dangerous 
+to the offcer, the driver, and others on the road. “Vehicular 
+pursuits” are “often catastrophic.” Lange, 594 U. S., at 324 
+(Roberts, C. J., concurring in judgment). Many real-world 
+examples demonstrate as much. Plumhoff v. Rickard in­
+volved a “ `dangerous car chase' ” in which the driver “tried 
+to outrun as many as six police cruisers at speeds sometimes 
+exceeding 100 miles per hour,” ending in the “fatal shooting” 
+of the driver. Ante, at 81 (quoting 572 U. S. 765, 768 (2014)). 
+In Scott v. Harris, multiple police cars “with blue lights 
+fashing and sirens blaring” chased the driver “for nearly 10 
+miles” while “he ignored their warning to stop,” culminating 
+in an offcer ramming the driver off the road. 550 U. S., at 
+384. Moreover, a recent study concluded that a signifcant 
+percentage of those killed in police chases are not the feeing 
+drivers but rather are passengers or bystanders. From 
+2017 through 2022, more than 500 bystanders were report­
+edly killed as a result of police chases.3 
+Third, the offcer might try to shoot out the tires of the 
+feeing car, or otherwise try to hinder the car's movement, 
+in order to bring it to a stop. But shooting at a car, espe­
+cially its tires, can be “dangerous” and is often “ineffective.” 4 
+3 See S. Neilson, J. Gollan, & J. Haseman, First-of-Its-Kind Database: 
+Majority of People Killed in Police Chases Aren't the Fleeing Drivers, San 
+Francisco Chronicle (Feb. 2024). 
+4 Los Angeles County Sheriff's Dept., Field Operations Support Services 
+Newsletter: 15–14 – Shooting at Vehicle Tires (2025). 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 73 (2025) 
+89 
+Kavanaugh, J., concurring 
+Even if the offcer manages to hit the tires, the driver could 
+lose control and crash into others on the road. That course 
+of action also poses the risk of the offcer accidentally shoot­
+ing the driver or innocent passengers. 
+Fourth, as happened here, the offcer could attempt to stop 
+the feeing driver at the outset by jumping on or reaching 
+into the car. The dangerousness of that option is readily 
+apparent. Perhaps the driver will hit the brakes once he 
+realizes an offcer is clinging to the car or attempting to 
+reach through the window. But if the driver does not slow 
+down, then the offcer may suffer serious and perhaps fatal 
+injuries. The offcer could try to fre his weapon to incapaci­
+tate the driver and bring the car safely to a stop. But the 
+car may be just as likely to go careening into traffc, thereby 
+threatening the safety of the offcer, other drivers, passen­
+gers, pedestrians, and more. 
+I could go on. The point here is that when a driver 
+abruptly pulls away during a traffc stop, an offcer has no 
+particularly good or safe options. None of the options avail­
+able to the offcer avoids danger to the community, and all 
+of them require life-or-death decisions that must be made 
+in a few seconds in highly stressful and unpredictable 
+circumstances. 
+Of course, when an offcer uses force against a feeing 
+driver, the judiciary still must assess any resulting Fourth 
+Amendment claim under the standard of objective reason­
+ableness. Under this Court's precedents, that inquiry in­
+volves “a careful balancing of `the nature and quality of the 
+intrusion on the individual's Fourth Amendment interests' 
+against the countervailing governmental interests at stake.” 
+Graham, 490 U. S., at 396 (quoting Tennessee v. Garner, 471 
+U. S. 1, 8 (1985)). In conducting that analysis, judges should 
+keep in mind that it is one thing to dissect and scrutinize an 
+offcer's actions with the “20/20 vision of hindsight,” “in the 
+peace of a judge's chambers.” Graham, 490 U. S., at 396 
+(quotation marks omitted). It is quite another to make 
+Page Proof Pending Publication
+
+90 
+BARNES v. FELIX 
+Kavanaugh, J., concurring 
+“split-second judgments” on the ground, “in circumstances 
+that are tense, uncertain, and rapidly evolving.” Id., at 397. 
+In analyzing the reasonableness of an offcer's conduct at a 
+traffc stop, particularly traffc stops where the driver has 
+suddenly pulled away, courts must appreciate the extraordi­
+nary dangers and risks facing police offcers and the commu­
+nity at large. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 73, line 18 from bottom: “the” is inserted before “threat” 
+p. 73, line 11 from bottom: “at” is changed to “on” 
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+_________________ 
+_________________ 
+1 
+Cite as: 604 U. S. ____ (2025) 
+SUPREME COURT OF THE UNITED STATES 
+No. 24A949 
+KRISTI NOEM, SECRETARY, DEPARTMENT OF 
+HOMELAND SECURITY, ET AL. v. KILMAR 
+ARMANDO ABREGO GARCIA, ET AL. 
+ON APPLICATION TO VACATE INJUNCTION ENTERED BY THE 
+UNITED STATES DISTRICT COURT FOR THE DISTRICT OF 
+MARYLAND 
+[April 10, 2025] 
+On March 15, 2025, the United States removed Kilmar 
+Armando Abrego Garcia from the United States to El Sal­
+vador, where he is currently detained in the Center for Ter­
+rorism Confinement (CECOT). The United States acknowl­
+edges that Abrego Garcia was subject to a withholding 
+order forbidding his removal to El Salvador, and that the
+removal to El Salvador was therefore illegal.  The United 
+States represents that the removal to El Salvador was the
+result of an “administrative error.”  The United States al­
+leges, however, that Abrego Garcia has been found to be a 
+member of the gang MS–13, a designated foreign terrorist 
+organization, and that his return to the United States
+would pose a threat to the public.  Abrego Garcia responds
+that he is not a member of MS–13, and that he has lived 
+safely in the United States with his family for a decade and
+has never been charged with a crime. 
+On Friday, April 4, the United States District Court for
+the District of Maryland entered an order directing the Gov­
+ernment to “facilitate and effectuate the return of [Abrego 
+Garcia] to the United States by no later than 11:59 PM on
+Monday, April 7.”  On the morning of April 7, the United 
+States filed this application to vacate the District Court’s
+order. THE CHIEF JUSTICE entered an administrative stay 
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+2 
+NOEM v. ABREGO GARCIA 
+Statement of SOTOMAYOR, J. 
+and subsequently referred the application to the Court. 
+The application is granted in part and denied in part,
+subject to the direction of this order.  Due to the adminis­
+trative stay issued by THE CHIEF JUSTICE, the deadline im­
+posed by the District Court has now passed.  To that extent, 
+the Government’s emergency application is effectively 
+granted in part and the deadline in the challenged order is 
+no longer effective. The rest of the District Court’s order 
+remains in effect but requires clarification on remand.  The 
+order properly requires the Government to “facilitate” 
+Abrego Garcia’s release from custody in El Salvador and to
+ensure that his case is handled as it would have been had 
+he not been improperly sent to El Salvador.  The intended 
+scope of the term “effectuate” in the District Court’s order
+is, however, unclear, and may exceed the District Court’s 
+authority. The District Court should clarify its directive,
+with due regard for the deference owed to the Executive
+Branch in the conduct of foreign affairs.  For its part, the 
+Government should be prepared to share what it can con­
+cerning the steps it has taken and the prospect of further 
+steps. The order heretofore entered by THE CHIEF JUSTICE 
+is vacated. 
+ Statement of JUSTICE SOTOMAYOR, with whom JUSTICE 
+KAGAN and JUSTICE JACKSON join, respecting the Court’s 
+disposition of the application. 
+The United States Government arrested Kilmar Ar­
+mando Abrego Garcia in Maryland and flew him to a “ter­
+rorism confinement center” in El Salvador, where he has 
+been detained for 26 days and counting.  To this day, the 
+Government has cited no basis in law for Abrego Garcia’s
+warrantless arrest, his removal to El Salvador, or his con­
+finement in a Salvadoran prison.  Nor could it. The Gov­
+ernment remains bound by an Immigration Judge’s 2019
+order expressly prohibiting Abrego Garcia’s removal to El 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+Cite as: 604 U. S. ____ (2025) 
+Statement of SOTOMAYOR, J. 
+Salvador because he faced a “clear probability of future per­
+secution” there and “demonstrated that [El Salvador’s] au­
+thorities were and would be unable or unwilling to protect 
+him.” App. to Application To Vacate Injunction 13a.  The 
+Government has not challenged the validity of that order.
+Instead of hastening to correct its egregious error, the
+Government dismissed it as an “oversight.” Decl. of R. 
+Cerna in No. 25–cv–951 (D Md., Mar. 31, 2025), ECF Doc.
+11–3, p. 3.  The Government now requests an order from
+this Court permitting it to leave Abrego Garcia, a husband 
+and father without a criminal record, in a Salvadoran 
+prison for no reason recognized by the law.  The only argu­
+ment the Government offers in support of its request, that 
+United States courts cannot grant relief once a deportee 
+crosses the border, is plainly wrong.  See Rumsfeld v. Pa­
+dilla, 542 U. S. 426, 447, n. 16 (2004); cf. Boumediene v. 
+Bush, 553 U. S. 723, 732 (2008).  The Government’s argu­
+ment, moreover, implies that it could deport and incarcer­
+ate any person, including U. S. citizens, without legal con­
+sequence, so long as it does so before a court can intervene.  
+See Trump v. J. G. G., 604 U. S. ___, ___ (2025) 
+(SOTOMAYOR, J., dissenting) (slip op., at 8).  That view re­
+futes itself. 
+Because every factor governing requests for equitable re­
+lief manifestly weighs against the Government, Nken v. 
+Holder, 556 U. S. 418, 426 (2009), I would have declined to 
+intervene in this litigation and denied the application in 
+full. 
+Nevertheless, I agree with the Court’s order that the 
+proper remedy is to provide Abrego Garcia with all the pro­
+cess to which he would have been entitled had he not been 
+unlawfully removed to El Salvador. That means the Gov­
+ernment must comply with its obligation to provide Abrego 
+Garcia with “due process of law,” including notice and an
+opportunity to be heard, in any future proceedings. Reno v. 
+Flores, 507 U. S. 292, 306 (1993).  It must also comply with 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+4 
+NOEM v. ABREGO GARCIA 
+Statement of SOTOMAYOR, J. 
+its obligations under the Convention Against Torture.  See 
+Convention Against Torture and Other Cruel and Inhuman
+or Degrading Treatment or Punishment, Dec. 10, 1984, S.
+Treaty Doc. No. 100–20, 1465 U. N. T. S. 113.  Federal law 
+governing detention and removal of immigrants continues, 
+of course, to be binding as well.  See 8 U. S. C. §1226(a) (re­
+quiring a warrant before a noncitizen “may be arrested and
+detained pending a decision” on removal); 8 CFR 
+§287.8(c)(2)(ii) (2024) (requiring same); see also 8 CFR 
+§241.4(l) (in order to revoke conditional release, the Gov­
+ernment must provide adequate notice and “promptly” ar­
+range an “initial informal interview . . . to afford the alien 
+an opportunity to respond to the reasons for the revocation 
+stated in the notification”).  Moreover, it has been the Gov­
+ernment’s own well-established policy to “facilitate [an] al­
+ien’s return to the United States if . . . the alien’s presence 
+is necessary for continued administrative removal proceed­
+ings” in cases where a noncitizen has been removed pending 
+immigration proceedings. See U. S. Immigration and Cus­
+toms Enforcement, Directive 11061.1, Facilitating the Re­
+turn to the United States of Certain Lawfully Removed Al­
+iens, §2 (Feb. 24, 2012). 
+In the proceedings on remand, the District Court should
+continue to ensure that the Government lives up to its obli­
+gations to follow the law. 
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+PRELIMINARY PRINT 
+Volume 594 U. S. Part 1 
+Pages 180–219 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 23, 2021 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+180 
+OCTOBER TERM, 2020 
+Syllabus 
+MAHANOY AREA SCHOOL DISTRICT v. B. L., a minor, 
+by and through her father, LEVY, et al. 
+certiorari to the united states court of appeals for 
+the third circuit 
+No. 20–255. Argued April 28, 2021—Decided June 23, 2021 
+Mahanoy Area High School student B. L. failed to make the school's var­
+sity cheerleading squad. While visiting a local convenience store over 
+the weekend, B. L. posted two images on Snapchat, a social media appli­
+cation for smartphones that allows users to share temporary images 
+with selected friends. B. L.'s posts expressed frustration with the 
+school and the school's cheerleading squad, and one contained vulgar 
+language and gestures. When school offcials learned of the posts, they 
+suspended B. L. from the junior varsity cheerleading squad for the up­
+coming year. After unsuccessfully seeking to reverse that punishment, 
+B. L. and her parents sought relief in federal court, arguing inter alia 
+that punishing B. L. for her speech violated the First Amendment. The 
+District Court granted an injunction ordering the school to reinstate 
+B. L. to the cheerleading team. Relying on Tinker v. Des Moines Inde­
+pendent Community School Dist., 393 U. S. 503, to grant B. L.'s subse­
+quent motion for summary judgment, the District Court found that 
+B. L.'s punishment violated the First Amendment because her Snapchat 
+posts had not caused substantial disruption at the school. The Third 
+Circuit affrmed the judgment, but the panel majority reasoned that 
+Tinker did not apply because schools had no special license to regulate 
+student speech occurring off campus. 
+Held: While public schools may have a special interest in regulating some 
+off-campus student speech, the special interests offered by the school 
+are not suffcient to overcome B. L.'s interest in free expression in this 
+case. Pp. 187–193. 
+(a) In Tinker, we indicated that schools have a special interest in 
+regulating on-campus student speech that “materially disrupts class­
+work or involves substantial disorder or invasion of the rights of oth­
+ers.” 393 U. S., at 513. The special characteristics that give schools 
+additional license to regulate student speech do not always disappear 
+when that speech takes place off campus. Circumstances that may im­
+plicate a school's regulatory interests include serious or severe bullying 
+or harassment targeting particular individuals; threats aimed at teach­
+ers or other students; the failure to follow rules concerning lessons, the 
+writing of papers, the use of computers, or participation in other online 
+school activities; and breaches of school security devices. Pp. 187–189. 
+
+Cite as: 594 U. S. 180 (2021) 
+181 
+Syllabus 
+(b) But three features of off-campus speech often, even if not always, 
+distinguish schools' efforts to regulate off-campus speech. First, a 
+school will rarely stand in loco parentis when a student speaks off cam­
+pus. Second, from the student speaker's perspective, regulations of off-
+campus speech, when coupled with regulations of on-campus speech, in­
+clude all the speech a student utters during the full 24-hour day. That 
+means courts must be more skeptical of a school's efforts to regulate off-
+campus speech, for doing so may mean the student cannot engage in 
+that kind of speech at all. Third, the school itself has an interest in 
+protecting a student's unpopular expression, especially when the expres­
+sion takes place off campus, because America's public schools are the 
+nurseries of democracy. Taken together, these three features of much 
+off-campus speech mean that the leeway the First Amendment grants to 
+schools in light of their special characteristics is diminished. Pp. 189–190. 
+(c) The school violated B. L.'s First Amendment rights when it sus­
+pended her from the junior varsity cheerleading squad. Pp. 190–194. 
+(1) B. L.'s posts are entitled to First Amendment protection. The 
+statements made in B. L.'s Snapchats refect criticism of the rules of a 
+community of which B. L. forms a part. And B. L.'s message did not 
+involve features that would place it outside the First Amendment's ordi­
+nary protection. Pp. 190–191. 
+(2) The circumstances of B. L.'s speech diminish the school's interest 
+in regulation. B. L.'s posts appeared outside of school hours from a loca­
+tion outside the school. She did not identify the school in her posts or 
+target any member of the school community with vulgar or abusive lan­
+guage. B. L. also transmitted her speech through a personal cellphone, 
+to an audience consisting of her private circle of Snapchat friends. P. 190. 
+(3) The school's interest in teaching good manners and conse­
+quently in punishing the use of vulgar language aimed at part of the 
+school community is weakened considerably by the fact that B. L. spoke 
+outside the school on her own time. B. L. spoke under circumstances 
+where the school did not stand in loco parentis. And the vulgarity in 
+B. L.'s posts encompassed a message of criticism. In addition, the 
+school has presented no evidence of any general effort to prevent stu­
+dents from using vulgarity outside the classroom. Pp. 191–192. 
+(4) The school's interest in preventing disruption is not supported 
+by the record, which shows that discussion of the matter took, at most, 
+5 to 10 minutes of an Algebra class “for just a couple days” and that 
+some members of the cheerleading team were “upset” about the content 
+of B. L.'s Snapchats. App. 82–83. This alone does not satisfy Tinker's 
+demanding standards. Pp. 192–193. 
+(5) Likewise, there is little to suggest a substantial interference in, 
+or disruption of, the school's efforts to maintain cohesion on the school 
+cheerleading squad. P. 193. 
+Page Proof Pending Publication
+
+182 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Syllabus 
+964 F. 3d 170, affrmed. 
+Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett, 
+JJ., joined. Alito, J., fled a concurring opinion, in which Gorsuch, J., 
+joined, post, p. 194. Thomas, J., fled a dissenting opinion, post, p. 211. 
+Lisa S. Blatt argued the cause for petitioner. With her 
+on the briefs were Sarah M. Harris, Eden Schiffmann, Mi­
+chael I. Levin, and David W. Brown. 
+Deputy Solicitor General Stewart argued the cause for the 
+United States as amicus curiae urging vacatur. On the 
+brief were Acting Solicitor General Prelogar, Acting Assist­
+ant Attorney General Boynton, Deputy Solicitor General 
+Kneedler, Sopan Joshi, and Michael S. Raab. 
+David D. Cole argued the cause for respondent. With 
+him on the brief were Witold J. Walczak, Arleigh P. Helfer 
+III, Theresa E. Loscalzo, Jennesa Calvo-Friedman, and Seth 
+F. Kreimer.* 
+*Briefs of amici curiae urging reversal were fled for the American 
+Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Jordan 
+Sekulow, Colby M. May, and Walter M. Weber; for First Amendment and 
+Education Law Scholars by Misha Tseytlin; for the Hunstville, Alabama 
+City Board of Education et al. by E. Travis Ramey, Christopher M. Pape, 
+and William Grayson Lambert; for the National Association of Pupil 
+Services Administrators et al. by Christopher B. Gilbert; for the National 
+Education Association by Alice M. O'Brien and Jason Walta; for the Na­
+tional School Boards Association et al. by Gregory G. Garre, Caroline A. 
+Flynn, and Francisco M. Negrón, Jr.; and for the Pennsylvania School 
+Boards Association et al. by Michael H. McGinley. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Louisiana et al. by Jeff Landry, Attorney General of Louisiana, Elizabeth 
+B. Murrill, Solicitor General, and Ben Wallace, Assistant Solicitor Gen­
+eral, and by the Attorneys General for their respective States as follows: 
+Leslie Rutledge of Arkansas, Daniel Cameron of Kentucky, Lynn Fitch of 
+Mississippi, Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug 
+Peterson of Nebraska, Ken Paxton of Texas, and Sean Reyes of Utah; for 
+the Advancement Project et al. by John A. Freedman, Gilda Daniels, 
+Marsha L. Levick, and Katherine E. Burdick; for the Alliance Defending 
+Freedom et al. by Kristen K. Waggoner, John J. Bursch, David A. Cort-
+man, Tyson C. Langhofer, and Kenneth W. Starr; for the Americans for 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 180 (2021) 
+183 
+Opinion of the Court 
+Justice Breyer delivered the opinion of the Court. 
+A public high school student used, and transmitted to her 
+Snapchat friends, vulgar language and gestures criticizing 
+Prosperity Foundation et al. by Cynthia Fleming Crawford and John W. 
+Whitehead; for the Becket Fund for Religious Liberty by Eric S. Baxter 
+and Nicholas R. Reaves; for College Athlete Advocates by Justin Mar­
+ceau; for Current and Former Student School Board Members by Hyland 
+Hunt and Ruthanne M. Deutsch; for the Electronic Frontier Foundation 
+et al. by Naomi Gilens and Sophia Cope; for the First Liberty Institute 
+by Kelly J. Shackelford, Jeffrey C. Mateer, Hiram S. Sasser III and David 
+J. Hacker; for the Foundation for Individual Rights in Education et al. by 
+Darpana Sheth, Jeffrey A. Trexler, and Eric M. Freedman; for the HISD 
+Student Congress et al. by Michael J. Grygiel and Vincent H. Chieffo; for 
+the Independent Women's Law Center by William M. Jay and Benjamin 
+Hayes; for Law and Education Professors by Elisabeth S. Theodore, R. 
+Stanton Jones, and Anthony Franze; for the Liberty Justice Center et al. 
+by Daniel R. Suhr; for the National Women's Law Center et al. by Doug­
+las H. Hallward-Driemeier, Stephanie A. Webster, Damon T. Hewitt, Jon 
+M. Greenbaum, David G. Hinojosa, David Brody, Paul D. Castillo, Fat­
+ima Goss Graves, Emily J. Martin, Sunu P. Chandy, Neena Chaudhry, 
+Camilla B. Taylor, and Kara N. Ingelhart; for the Pacifc Legal Founda­
+tion et al. by Deborah J. La Fetra, Daniel M. Ortner, and Ilya Shapiro; 
+for Parents Defending Education by William S. Consovoy, John Michael 
+Connolly, and Cameron T. Norris; for School Discipline Professors by 
+Richard W. Mark and Lee R. Crain; for the Student Press Law Center 
+et al. by David M. Zionts, Michael C. Hiestand, S. Mark Goodman, and 
+Therea Chmara; for Teachers et al. by Michael R. Dreeben, Samantha M. 
+Goldstein, and Anton Metlitsky; for VanHo Law by Adam M. VanHo; and 
+for Jane Bambauer et al. by Stuart Banner and Eugene Volokh, pro se. 
+Briefs of amici curiae were fled for the Commonwealth of Massachu­
+setts et al. by Maura Healey, Attorney General of Massachusetts, and 
+Joshua Olszewski-Jubelirer, Abrisham Eshghi, and Douglas Martland, 
+Assistant Attorneys General, by Karl A. Racine, Attorney General of the 
+District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van 
+Zile, Principal Deputy Solicitor General, and Samson J. Schatz, Assistant 
+Attorney General, Jane E. Young, Deputy Attorney General of New 
+Hampshire, and by the Attorneys General for their respective States as 
+follows: Xavier Becerra of California, Philip J. Weiser of Colorado, Kath­
+leen Jennings of Delaware, Clare E. Connors of Hawaii, Kwame Raoul of 
+Illinois, Thomas J. Miller of Iowa, Aaron M. Frey of Maine, Brian E. 
+Frosh of Maryland, Dana Nessel of Michigan, Keith Ellison of Minnesota, 
+Aaron D. Ford of Nevada, Gurbir S. Grewal of New Jersey, Hector Bald­
+
+184 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Opinion of the Court 
+both the school and the school's cheerleading team. The stu­
+dent's speech took place outside of school hours and away 
+from the school's campus. In response, the school sus­
+pended the student for a year from the cheerleading team. 
+We must decide whether the Court of Appeals for the Third 
+Circuit correctly held that the school's decision violated the 
+First Amendment. Although we do not agree with the rea­
+soning of the Third Circuit panel's majority, we do agree with 
+its conclusion that the school's disciplinary action violated 
+the First Amendment. 
+I 
+A 
+B. L. (who, together with her parents, is a respondent in 
+this case) was a student at Mahanoy Area High School, a 
+public school in Mahanoy City, Pennsylvania. At the end of 
+her freshman year, B. L. tried out for a position on the 
+school's varsity cheerleading squad and for right felder on a 
+private softball team. She did not make the varsity cheer-
+leading team or get her preferred softball position, but she 
+was offered a spot on the cheerleading squad's junior varsity 
+team. B. L. did not accept the coach's decision with good 
+grace, particularly because the squad coaches had placed an 
+entering freshman on the varsity team. 
+That weekend, B. L. and a friend visited the Cocoa Hut, a 
+local convenience store. There, B. L. used her smartphone 
+to post two photos on Snapchat, a social media application 
+that allows users to post photos and videos that disappear 
+after a set period of time. B. L. posted the images to her 
+Snapchat “story,” a feature of the application that allows any 
+eras of New Mexico, Letitia James of New York, Joshua H. Stein of North 
+Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, 
+Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, 
+Robert W. Ferguson of Washington, and Joshua L. Kaul of Wisconsin; 
+for the Cyberbullying Research Center et al. by David Beryl Rubin; for 
+the Life Legal Defense Foundation by Catherine W. Short; and for Mary 
+Beth Tinker et al. by Robert Corn-Revere. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+185 
+Opinion of the Court 
+person in the user's “friend” group (B. L. had about 250 
+“friends”) to view the images for a 24-hour period. 
+The frst image B. L. posted showed B. L. and a friend 
+with middle fngers raised; it bore the caption: “Fuck school 
+fuck softball fuck cheer fuck everything.” App. 20. The 
+second image was blank but for a caption, which read: “Love 
+how me and [another student] get told we need a year of jv 
+before we make varsity but tha[t] doesn't matter to anyone 
+else?” The caption also contained an upside-down smiley-
+face emoji. Id., at 21. 
+B. L.'s Snapchat “friends” included other Mahanoy Area 
+High School students, some of whom also belonged to the 
+cheerleading squad. At least one of them, using a separate 
+cellphone, took pictures of B. L.'s posts and shared them with 
+other members of the cheerleading squad. One of the stu­
+dents who received these photos showed them to her mother 
+(who was a cheerleading squad coach), and the images 
+spread. That week, several cheerleaders and other students 
+approached the cheerleading coaches “visibly upset” about 
+B. L.'s posts. Id., at 83–84. Questions about the posts per­
+sisted during an Algebra class taught by one of the two 
+coaches. Id., at 83. 
+After discussing the matter with the school principal, the 
+coaches decided that because the posts used profanity in con­
+nection with a school extracurricular activity, they violated 
+team and school rules. As a result, the coaches suspended 
+B. L. from the junior varsity cheerleading squad for the up­
+coming year. B. L.'s subsequent apologies did not move 
+school offcials. The school's athletic director, principal, 
+superintendent, and school board, all affrmed B. L.'s suspen­
+sion from the team. In response, B. L., together with her 
+parents, fled this lawsuit in Federal District Court. 
+B 
+The District Court found in B. L.'s favor. It frst granted 
+a temporary restraining order and a preliminary injunction 
+Page Proof Pending Publication
+
+186 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Opinion of the Court 
+ordering the school to reinstate B. L. to the cheerleading 
+team. In granting B. L.'s subsequent motion for summary 
+judgment, the District Court found that B. L.'s Snapchats 
+had not caused substantial disruption at the school. Cf. 
+Tinker v. Des Moines Independent Community School Dist., 
+393 U. S. 503 (1969). Consequently, the District Court de­
+clared that B. L.'s punishment violated the First Amend­
+ment, and it awarded B. L. nominal damages and attorneys' 
+fees and ordered the school to expunge her disciplinary 
+record. 
+On appeal, a panel of the Third Circuit affrmed the Dis­
+trict Court's conclusion. See 964 F. 3d 170, 194 (2020). In 
+so doing, the majority noted that this Court had previously 
+held in Tinker that a public high school could not constitu­
+tionally prohibit a peaceful student political demonstration 
+consisting of “ `pure speech' ” on school property during the 
+school day. 393 U. S., at 505–506, 514. In reaching its con­
+clusion in Tinker, this Court emphasized that there was no 
+evidence the student protest would “substantially interfere 
+with the work of the school or impinge upon the rights of 
+other students.” Id., at 509. But the Court also said that: 
+“[C]onduct by [a] student, in class or out of it, which for any 
+reason—whether it stems from time, place, or type of 
+behavior—materially disrupts classwork or involves sub­
+stantial disorder or invasion of the rights of others is . . . 
+not immunized by the constitutional guarantee of freedom of 
+speech.” Id., at 513. 
+Many courts have taken this statement as setting a 
+standard—a standard that allows schools considerable free­
+dom on campus to discipline students for conduct that the 
+First Amendment might otherwise protect. But here, the 
+panel majority held that this additional freedom did “not 
+apply to off-campus speech,” which it defned as “speech that 
+is outside school-owned, -operated, or -supervised channels 
+and that is not reasonably interpreted as bearing the school's 
+imprimatur.” 964 F. 3d, at 189. Because B. L.'s speech 
+took place off campus, the panel concluded that the Tinker 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+187 
+Opinion of the Court 
+standard did not apply and the school consequently could not 
+discipline B. L. for engaging in a form of pure speech. 
+A concurring member of the panel agreed with the majori­
+ty's result but wrote that the school had not suffciently justi­
+fed disciplining B. L. because, whether the Tinker standard 
+did or did not apply, B. L.'s speech was not substantially 
+disruptive. 
+C 
+The school district fled a petition for certiorari in this 
+Court, asking us to decide “[w]hether [Tinker], which holds 
+that public school offcials may regulate speech that would 
+materially and substantially disrupt the work and discipline 
+of the school, applies to student speech that occurs off cam­
+pus.” Pet. for Cert. I. We granted the petition. 
+II 
+We have made clear that students do not “shed their con­
+stitutional rights to freedom of speech or expression,” even 
+“at the school house gate.” Tinker, 393 U. S., at 506; see 
+also Brown v. Entertainment Merchants Assn., 564 U. S. 
+786, 794 (2011) (“[M]inors are entitled to a signifcant meas­
+ure of First Amendment protection” (alteration in original; 
+internal quotation marks omitted)). But we have also made 
+clear that courts must apply the First Amendment “in light 
+of the special characteristics of the school environment.” 
+Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 266 
+(1988) (internal quotation mark omitted). One such charac­
+teristic, which we have stressed, is the fact that schools at 
+times stand in loco parentis, i. e., in the place of parents. 
+See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 684 
+(1986). 
+This Court has previously outlined three specifc catego­
+ries of student speech that schools may regulate in certain 
+circumstances: (1) “indecent,” “lewd,” or “vulgar” speech 
+uttered during a school assembly on school grounds, see id., 
+at 685; (2) speech, uttered during a class trip, that promotes 
+“illegal drug use,” see Morse v. Frederick, 551 U. S. 393, 409 
+Page Proof Pending Publication
+
+188 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Opinion of the Court 
+(2007); and (3) speech that others may reasonably perceive 
+as “bear[ing] the imprimatur of the school,” such as that ap­
+pearing in a school-sponsored newspaper, see Kuhlmeier, 
+484 U. S., at 271. 
+Finally, in Tinker, we said schools have a special interest 
+in regulating speech that “materially disrupts classwork or 
+involves substantial disorder or invasion of the rights of oth­
+ers.” 393 U. S., at 513. These special characteristics call 
+for special leeway when schools regulate speech that occurs 
+under its supervision. 
+Unlike the Third Circuit, we do not believe the special 
+characteristics that give schools additional license to regu­
+late student speech always disappear when a school regu­
+lates speech that takes place off campus. The school's 
+regulatory interests remain signifcant in some off-campus 
+circumstances. The parties' briefs, and those of amici, list 
+several types of off-campus behavior that may call for school 
+regulation. These include serious or severe bullying or har­
+assment targeting particular individuals; threats aimed at 
+teachers or other students; the failure to follow rules con­
+cerning lessons, the writing of papers, the use of computers, 
+or participation in other online school activities; and breaches 
+of school security devices, including material maintained 
+within school computers. 
+Even B. L. herself and the amici supporting her would 
+redefne the Third Circuit's off-campus/on-campus distinc­
+tion, treating as on campus: all times when the school is 
+responsible for the student; the school's immediate surround­
+ings; travel en route to and from the school; all speech taking 
+place over school laptops or on a school's website; speech tak­
+ing place during remote learning; activities taken for school 
+credit; and communications to school e-mail accounts or 
+phones. Brief for Respondents 36–37. And it may be that 
+speech related to extracurricular activities, such as team 
+sports, would also receive special treatment under B. L.'s 
+proposed rule. See Tr. of Oral Arg. 71, 85. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+189 
+Opinion of the Court 
+We are uncertain as to the length or content of any such 
+list of appropriate exceptions or carveouts to the Third Cir­
+cuit majority's rule. That rule, basically, if not entirely, 
+would deny the off-campus applicability of Tinker's highly 
+general statement about the nature of a school's special in­
+terests. Particularly given the advent of computer-based 
+learning, we hesitate to determine precisely which of many 
+school-related off-campus activities belong on such a list. 
+Neither do we now know how such a list might vary, depend­
+ing upon a student's age, the nature of the school's off-campus 
+activity, or the impact upon the school itself. Thus, we do 
+not now set forth a broad, highly general First Amendment 
+rule stating just what counts as “off campus” speech and 
+whether or how ordinary First Amendment standards must 
+give way off campus to a school's special need to prevent, 
+e. g., substantial disruption of learning-related activities or 
+the protection of those who make up a school community. 
+We can, however, mention three features of off-campus 
+speech that often, even if not always, distinguish schools' ef­
+forts to regulate that speech from their efforts to regulate 
+on-campus speech. Those features diminish the strength of 
+the unique educational characteristics that might call for spe­
+cial First Amendment leeway. 
+First, a school, in relation to off-campus speech, will rarely 
+stand in loco parentis. The doctrine of in loco parentis 
+treats school administrators as standing in the place of stu­
+dents' parents under circumstances where the children's 
+actual parents cannot protect, guide, and discipline them. 
+Geographically speaking, off-campus speech will normally 
+fall within the zone of parental, rather than school-related, 
+responsibility. 
+Second, from the student speaker's perspective, regula­
+tions of off-campus speech, when coupled with regulations of 
+on-campus speech, include all the speech a student utters 
+during the full 24-hour day. That means courts must be 
+more skeptical of a school's efforts to regulate off-campus 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+190 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Opinion of the Court 
+speech, for doing so may mean the student cannot engage in 
+that kind of speech at all. When it comes to political or 
+religious speech that occurs outside school or a school pro­
+gram or activity, the school will have a heavy burden to 
+justify intervention. 
+Third, the school itself has an interest in protecting a stu­
+dent's unpopular expression, especially when the expression 
+takes place off campus. America's public schools are the 
+nurseries of democracy. Our representative democracy only 
+works if we protect the “marketplace of ideas.” This free 
+exchange facilitates an informed public opinion, which, when 
+transmitted to lawmakers, helps produce laws that refect 
+the People's will. That protection must include the protec­
+tion of unpopular ideas, for popular ideas have less need for 
+protection. Thus, schools have a strong interest in ensuring 
+that future generations understand the workings in practice 
+of the well-known aphorism, “I disapprove of what you say, 
+but I will defend to the death your right to say it.” (Al­
+though this quote is often attributed to Voltaire, it was likely 
+coined by an English writer, Evelyn Beatrice Hall.) 
+Given the many different kinds of off-campus speech, the 
+different potential school-related and circumstance-specifc 
+justifcations, and the differing extent to which those justif­
+cations may call for First Amendment leeway, we can, as a 
+general matter, say little more than this: Taken together, 
+these three features of much off-campus speech mean that 
+the leeway the First Amendment grants to schools in light 
+of their special characteristics is diminished. We leave for 
+future cases to decide where, when, and how these features 
+mean the speaker's off-campus location will make the critical 
+difference. This case can, however, provide one example. 
+III 
+Consider B. L.'s speech. Putting aside the vulgar lan­
+guage, the listener would hear criticism, of the team, the 
+team's coaches, and the school—in a word or two, criticism 
+of the rules of a community of which B. L. forms a part. 
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 180 (2021) 
+191 
+Opinion of the Court 
+This criticism did not involve features that would place it 
+outside the First Amendment's ordinary protection. B. L.'s 
+posts, while crude, did not amount to fghting words. See 
+Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). And 
+while B. L. used vulgarity, her speech was not obscene as 
+this Court has understood that term. See Cohen v. Califor­
+nia, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. ut­
+tered the kind of pure speech to which, were she an adult, 
+the First Amendment would provide strong protection. See 
+id., at 24; cf. Snyder v. Phelps, 562 U. S. 443, 461 (2011) (First 
+Amendment protects “even hurtful speech on public issues 
+to ensure that we do not stife public debate”); Rankin v. 
+McPherson, 483 U. S. 378, 387 (1987) (“The inappropriate . . . 
+character of a statement is irrelevant to the question 
+whether it deals with a matter of public concern”). 
+Consider too when, where, and how B. L. spoke. Her 
+posts appeared outside of school hours from a location out­
+side the school. She did not identify the school in her posts 
+or target any member of the school community with vulgar 
+or abusive language. B. L. also transmitted her speech 
+through a personal cellphone, to an audience consisting of 
+her private circle of Snapchat friends. These features of 
+her speech, while risking transmission to the school itself, 
+nonetheless (for reasons we have just explained, supra, at 
+189–190) diminish the school's interest in punishing B. L.'s 
+utterance. 
+But what about the school's interest, here primarily an in­
+terest in prohibiting students from using vulgar language 
+to criticize a school team or its coaches—at least when that 
+criticism might well be transmitted to other students, team 
+members, coaches, and faculty? We can break that general 
+interest into three parts. 
+First, we consider the school's interest in teaching good 
+manners and consequently in punishing the use of vulgar lan­
+guage aimed at part of the school community. See App. 35 
+(indicating that coaches removed B. L. from the cheer team 
+because “there was profanity in [her] Snap and it was di­
+
+192 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Opinion of the Court 
+rected towards cheerleading”); see also id., at 27, 47, and 
+n. 9, 78, 82. The strength of this anti-vulgarity interest is 
+weakened considerably by the fact that B. L. spoke outside 
+the school on her own time. See Morse, 551 U. S., at 405 
+(clarifying that although a school can regulate a student's use 
+of sexual innuendo in a speech given within the school, if the 
+student “delivered the same speech in a public forum outside 
+the school context, it would have been protected”); see also 
+Fraser, 478 U. S., at 688 (Brennan, J., concurring in judg­
+ment) (noting that if the student in Fraser “had given the 
+same speech outside of the school environment, he could not 
+have been penalized simply because government offcials 
+considered his language to be inappropriate”). 
+B. L. spoke under circumstances where the school did not 
+stand in loco parentis. And there is no reason to believe 
+B. L.'s parents had delegated to school offcials their own 
+control of B. L.'s behavior at the Cocoa Hut. Moreover, the 
+vulgarity in B. L.'s posts encompassed a message, an expres­
+sion of B. L.'s irritation with, and criticism of, the school and 
+cheerleading communities. Further, the school has pre­
+sented no evidence of any general effort to prevent students 
+from using vulgarity outside the classroom. Together, these 
+facts convince us that the school's interest in teaching good 
+manners is not suffcient, in this case, to overcome B. L.'s 
+interest in free expression. 
+Second, the school argues that it was trying to prevent 
+disruption, if not within the classroom, then within the 
+bounds of a school-sponsored extracurricular activity. But 
+we can fnd no evidence in the record of the sort of “substan­
+tial disruption” of a school activity or a threatened harm to 
+the rights of others that might justify the school's action. 
+Tinker, 393 U. S., at 514. Rather, the record shows that dis­
+cussion of the matter took, at most, 5 to 10 minutes of an 
+Algebra class “for just a couple days” and that some mem­
+bers of the cheerleading team were “upset” about the con­
+tent of B. L.'s Snapchats. App. 82–83. But when one of 
+B. L.'s coaches was asked directly if she had “any reason to 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+193 
+Opinion of the Court 
+think that this particular incident would disrupt class or 
+school activities other than the fact that kids kept asking . . . 
+about it,” she responded simply, “No.” Id., at 84. As we 
+said in Tinker, “for the State in the person of school offcials 
+to justify prohibition of a particular expression of opinion, it 
+must be able to show that its action was caused by something 
+more than a mere desire to avoid the discomfort and unpleas­
+antness that always accompany an unpopular viewpoint.” 
+393 U. S., at 509. The alleged disturbance here does not 
+meet Tinker's demanding standard. 
+Third, the school presented some evidence that expresses 
+(at least indirectly) a concern for team morale. One of the 
+coaches testifed that the school decided to suspend B. L., 
+not because of any specifc negative impact upon a particular 
+member of the school community, but “based on the fact that 
+there was negativity put out there that could impact stu­
+dents in the school.” App. 81. There is little else, however, 
+that suggests any serious decline in team morale—to the 
+point where it could create a substantial interference in, or 
+disruption of, the school's efforts to maintain team cohesion. 
+As we have previously said, simple “undifferentiated fear or 
+apprehension . . . is not enough to overcome the right to 
+freedom of expression.” Tinker, 393 U. S., at 508. 
+It might be tempting to dismiss B. L.'s words as unworthy 
+of the robust First Amendment protections discussed herein. 
+But sometimes it is necessary to protect the superfuous in 
+order to preserve the necessary. See Tyson & Brother v. 
+Banton, 273 U. S. 418, 447 (1927) (Holmes, J., dissenting). 
+“We cannot lose sight of the fact that, in what otherwise 
+might seem a trifing and annoying instance of individual dis­
+tasteful abuse of a privilege, these fundamental societal val­
+ues are truly implicated.” Cohen, 403 U. S., at 25. 
+*
+*
+* 
+Although we do not agree with the reasoning of the Third 
+Circuit's panel majority, for the reasons expressed above, re­
+sembling those of the panel's concurring opinion, we nonethe­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+194 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+less agree that the school violated B. L.'s First Amendment 
+rights. The judgment of the Third Circuit is therefore 
+affrmed. 
+It is so ordered. 
+Justice Alito, with whom Justice Gorsuch joins, 
+concurring. 
+I join the opinion of the Court but write separately to ex­
+plain my understanding of the Court's decision and the 
+framework within which I think cases like this should be 
+analyzed. This is the frst case in which we have considered 
+the constitutionality of a public school's attempt to regulate 
+true off-premises student speech,1 and therefore it is impor­
+tant that our opinion not be misunderstood.2 
+1 In Tinker v. Des Moines Independent Community School Dist., 393 
+U. S. 503 (1969), not only did the speech occur on school grounds during 
+the regular school day, but our opinion was specifcally directed at on-
+premises speech. See id., at 506 (“It can hardly be argued that either 
+students or teachers shed their constitutional rights to freedom of speech 
+or expression at the schoolhouse gate” (emphasis added)); ibid. (“First 
+Amendment rights, applied in light of the special characteristics of the 
+school environment, are available to teachers and students” (emphasis 
+added)); id., at 507 (“[T]he Court has repeatedly emphasized the need for 
+affrming the comprehensive authority of the States and of school offcials, 
+consistent with fundamental constitutional safeguards, to prescribe and 
+control conduct in the schools” (emphasis added)); id., at 512–513 (refer­
+ring to speech that occurs “in the classroom,” “in the cafeteria, or on the 
+playing feld, or on the campus during the authorized hours”). Tinker 
+makes no reference whatsoever to speech that takes place off premises 
+and outside “authorized hours.” 
+All our other cases involving the free-speech rights of public school stu­
+dents concerned speech in school or in a school-sponsored event or publica­
+tion. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 677–678 
+(1986) (school assembly); Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 
+260, 262 (1988) (school newspaper); Morse v. Frederick, 551 U. S. 393, 397 
+(2007) (display of banner on street near school at school-sponsored event). 
+2 This case does not involve speech by a student at a public college or 
+university. For several reasons, including the age, independence, and liv­
+ing arrangements of such students, regulation of their speech may raise 
+
+Cite as: 594 U. S. 180 (2021) 
+195 
+Alito, J., concurring 
+I 
+The Court holds—and I agree—that: the First Amend­
+ment permits public schools to regulate some student speech 
+that does not occur on school premises during the regular 
+school day; 3 this authority is more limited than the authority 
+that schools exercise with respect to on-premises speech; 4 
+courts should be “skeptical” about the constitutionality of the 
+regulation of off-premises speech; 5 the doctrine of in loco 
+parentis “rarely” applies to off-premises speech; 6 public 
+school students, like all other Americans, have the right to 
+express “unpopular” ideas on public issues, even when 
+those ideas are expressed in language that some fnd “ `inap­
+propriate' ” or “ `hurtful' ”; 7 public schools have the duty to 
+teach students that freedom of speech, including unpopular 
+speech, is essential to our form of self-government; 8 the Ma­
+hanoy Area High School violated B. L.'s First Amendment 
+rights when it punished her for the messages she posted on 
+her own time while away from school premises; and the judg­
+ment of the Third Circuit must therefore be affrmed. 
+I also agree that it is not prudent for us to attempt at this 
+time to “set forth a broad, highly general First Amendment 
+rule” governing all off-premises speech. Ante, at 189. But 
+in order to understand what the Court has held, it is helpful to 
+very different questions from those presented here. I do not understand 
+the decision in this case to apply to such students. 
+3 See ante, at 188 (stating that a public school's authority to regulate 
+student speech does not “always disappear” when the speech “takes place 
+off campus” (emphasis added)); ibid. (“The school's regulatory interests 
+remain signifcant in some off-campus circumstances” (emphasis added)). 
+4 See ante, at 190 (stating that schools have “diminished” authority to 
+regulate off-premises speech). 
+5 See ante, at 189–190 (“[C]ourts must be more skeptical of a school's 
+efforts to regulate off-campus speech”). 
+6 See ante, at 189 (“[A] school, in relation to off-campus speech, will 
+rarely stand in loco parentis”). 
+7 Ante, at 190–191. 
+8 Ante, at 190. 
+Page Proof Pending Publication
+
+196 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+consider the framework within which efforts to regulate off-
+premises speech should be analyzed. 
+II 
+I start with this threshold question: Why does the First 
+Amendment ever allow the free-speech rights of public 
+school students to be restricted to a greater extent than the 
+rights of other juveniles who do not attend a public school? 
+As the Court recognized in Tinker v. Des Moines Independ­
+ent Community School Dist., 393 U. S. 503, 509 (1969), when 
+a public school regulates student speech, it acts as an arm of 
+the State in which it is located. Suppose that B. L. had been 
+enrolled in a private school and did exactly what she did 
+in this case—send out vulgar and derogatory messages that 
+focused on her school's cheerleading squad. The Common­
+wealth of Pennsylvania would have had no legal basis to pun­
+ish her and almost certainly would not have even tried. So 
+why should her status as a public school student give the 
+Commonwealth any greater authority to punish her speech? 
+Our cases involving the regulation of student speech have 
+not directly addressed this question. All those cases in­
+volved either in-school speech or speech that was tantamount 
+to in-school speech. See n. 1, supra. And in those cases, 
+the Court appeared to take it for granted that “the special 
+characteristics of the school environment” justifed special 
+rules. Morse v. Frederick, 551 U. S. 393, 397, 403, 405, 406, 
+n. 2, 408 (2007) (internal quotation marks omitted); Hazel-
+wood School Dist. v. Kuhlmeier, 484 U. S. 260, 266 (1988) 
+(internal quotation marks omitted); Tinker, 393 U. S., at 
+506. 
+Why the Court took this for granted is not hard to imag­
+ine. As a practical matter, it is impossible to see how a 
+school could function if administrators and teachers could not 
+regulate on-premises student speech, including by imposing 
+content-based restrictions in the classroom. In a math class, 
+for example, the teacher can insist that students talk about 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+197 
+Alito, J., concurring 
+math, not some other subject. See Kuhlmeier, 484 U. S., at 
+279 (Brennan, J., dissenting) (“The young polemic who stands 
+on a soapbox during calculus class to deliver an eloquent po­
+litical diatribe interferes with the legitimate teaching of cal­
+culus”). In addition, when a teacher asks a question, the 
+teacher must have the authority to insist that the student 
+respond to that question and not some other question, and a 
+teacher must also have the authority to speak without inter­
+ruption and to demand that students refrain from interrupt­
+ing one another. Practical necessity likewise dictates that 
+teachers and school administrators have related authority 
+with respect to other in-school activities like auditorium pro­
+grams attended by a large audience. See Bethel School 
+Dist. No. 403 v. Fraser, 478 U. S. 675, 685 (1986) (“A high 
+school assembly . . . is no place for a sexually explicit mono­
+logue directed towards an unsuspecting audience of teenage 
+students”); id., at 689 (Brennan, J., concurring in judgment) 
+(“In the present case, school offcials sought only to ensure 
+that a high school assembly proceed in an orderly manner”); 
+see also Kuhlmeier, 484 U. S., at 279 (Brennan, J., dissent­
+ing) (“[T]he student who delivers a lewd endorsement of a 
+student-government candidate might so extremely distract 
+an impressionable high school audience as to interfere with 
+the orderly operation of the school”). 
+Because no school could operate effectively if teachers and 
+administrators lacked the authority to regulate in-school 
+speech in these ways, the Court may have felt no need to 
+specify the source of this authority or to explain how the 
+special rules applicable to in-school student speech ft into 
+our broader framework of free-speech case law. But when 
+a public school regulates what students say or write when 
+they are not on school grounds and are not participating in 
+a school program, the school has the obligation to answer the 
+question with which I began: Why should enrollment in a 
+public school result in the diminution of a student's free-
+speech rights? 
+Page Proof Pending Publication
+
+198 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+The only plausible answer that comes readily to mind is 
+consent, either express or implied. The theory must be that 
+by enrolling a child in a public school, parents consent on 
+behalf of the child to the relinquishment of some of the child's 
+free-speech rights. 
+This understanding is consistent with the conditions to 
+which an adult would implicitly consent by enrolling in an 
+adult education class run by a unit of state or local govern­
+ment. If an adult signs up for, say, a French class, the adult 
+may be required to speak French, to answer the teacher's 
+questions, and to comply with other rules that are imposed 
+for the sake of orderly instruction. 
+When it comes to children, courts in this country have ana­
+lyzed the issue of consent by adapting the common-law doc­
+trine of in loco parentis. See Morse, 551 U. S., at 413–416 
+(Thomas, J., concurring). Under the common law, as Black­
+stone explained, “[a father could] delegate part of his paren­
+tal authority . . . to the tutor or schoolmaster of his child; 
+who is then in loco parentis, and has such a portion of the 
+power of the parent committed to his charge, [namely,] that 
+of restraint and correction, as may be necessary to answer 
+the purposes for which he is employed.” 1 W. Blackstone, 
+Commentaries on the Laws of England 441 (1765) (some em­
+phasis added). 
+Blackstone's explanation of the doctrine seems to treat it 
+primarily as an implied term in a private employment agree­
+ment between a father and those with whom he contracted 
+for the provision of educational services for his child,9 and 
+therefore the scope of the delegation that could be inferred 
+depended on “the purposes for which [the tutor or school­
+master was] employed.” Ibid. If a child was sent to a 
+9 In a sensational and highly publicized mid-19th century case, there was 
+an express delegation, Regina v. Hopley, 2 F. & F. 202, 175 Eng. Rep. 1024 
+(N. P. 1860), but in other 19th century cases, the delegation was inferred. 
+See Fitzgerald v. Northcote, 4 F. & F. 656, 176 Eng. Rep. 734 (N. P. 1865); 
+State v. Osborne, 24 Mo. App. 309 (1887). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 180 (2021) 
+199 
+Alito, J., concurring 
+boarding school, the parents would not have been in a posi­
+tion to monitor or control the child's behavior or to attend to 
+the child's welfare on a daily basis, and the schoolmaster 
+would be regarded as having implicitly received the author­
+ity to perform those functions around the clock while the 
+child was in residence. On the other hand, if parents hired 
+a tutor to instruct a child in the home on certain subjects 
+during certain hours, the scope of the delegation would be 
+different. The tutor would be in charge during lessons, but 
+the parents would retain most of their authority. In short, 
+the scope of the delegation depended on the scope of the 
+agreed-upon undertaking. 
+Today, of course, the educational picture is quite different. 
+The education of children within a specifed age range is 
+compulsory,10 and States specify the minimum number of 
+hours per day and the minimum number of days per year 
+that a student must attend classes, as well as many aspects 
+of the school curriculum.11 
+Parents are not required to en­
+roll their children in a public school. They can select a pri­
+vate school if a suitable one is available and they can afford 
+the tuition, and they may also be able to educate their chil­
+dren at home if they have the time and ability and can meet 
+the standards that their State imposes.12 
+But by choice or 
+10 See Ingraham v. Wright, 430 U. S. 651, 660, n. 14 (1977) (noting that 
+“compulsory school attendance laws were in force in all the States” by 
+1918). 
+11 See National Center for Education Statistics (NCES), State Education 
+Practices, Table 5.14: Number of Instructional Days and Hours in the 
+School Year, by State, 2018, https://nces.ed.gov/programs/statereform/ 
+tab5_14.asp. 
+12 Pennsylvania, for example, requires a minimum of 180 days of instruc­
+tion per year. See Pa. Stat. Ann., Tit. 24, § 13–1327.1(c) (Purdon 2016). 
+Students must be taught English, mathematics, science, geography, his­
+tory, civics, safety education, health, physical education, music, and art. 
+§§ 13–1327.1(c)(1)–(2). Parents are required to maintain current and 
+detailed records of their child's learning materials and progress, § 13– 
+1327.1(e)(1), and they must turn those records over to a teacher or psychol­
+ogist for an annual evaluation to determine whether “an appropriate 
+
+Page Proof Pending Publication
+200 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+necessity, nearly 90% of the students in this country attend 
+public schools,13 and parents and public schools do not enter 
+into a contractual relationship. 
+If in loco parentis is transplanted from Blackstone's Eng­
+land to the 21st century United States, what it amounts to 
+is simply a doctrine of inferred parental consent to a public 
+school's exercise of a degree of authority that is commensu­
+rate with the task that the parents ask the school to perform. 
+Because public school students attend school for only part of 
+the day and continue to live at home, the degree of authority 
+conferred is obviously less than that delegated to the head 
+of a late-18th century boarding school, but because public 
+school students are taught outside the home, the authority 
+conferred may be greater in at least some respects than that 
+enjoyed by a tutor of Blackstone's time. 
+So how much authority to regulate speech do parents im­
+plicitly delegate when they enroll a child at a public school? 
+The answer must be that parents are treated as having relin­
+quished the measure of authority that the schools must be 
+able to exercise in order to carry out their state-mandated 
+educational mission, as well as the authority to perform any 
+other functions to which parents expressly or implicitly 
+agree—for example, by giving permission for a child to 
+education is occurring,” §13–1327.1(e)(2). The evaluation also includes an 
+interview of the child. Ibid. Once the evaluation is completed, it is sub­
+mitted to the superintendent of the public school district of residence. 
+§§ 13–1327.1(e)(2), (h)(1). If the superintendent and a hearing examiner 
+fnd that the child is not being supplied an appropriate education, and the 
+parents' appeal of that decision is unsuccessful, the child will be promptly 
+enrolled in the public school district of residence or a private school. 
+§§ 13–1327.1(k)–(l). 
+13 See NCES, School Choice in the United States, 2019, Table 206.20: 
+Percentage Distribution of Students Ages 5 through 17 Attending Kinder­
+garten through 12th Grade, By School Type or Participation in Home­
+schooling and Selected Child, Parent, and Household Characteristics, Se­
+lected Years 1999 Through 2016, https://nces.ed.gov/programs/digest//d19/ 
+tables/dt19_206.20.asp. 
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 180 (2021) 
+201 
+Alito, J., concurring 
+participate in an extracurricular activity or to go on a 
+school trip. 
+III 
+I have already explained what this delegated authority 
+means with respect to student speech during standard class­
+room instruction. And it is reasonable to infer that this au­
+thority extends to periods when students are in school but 
+are not in class, for example, when they are walking in a 
+hall, eating lunch, congregating outside before the school day 
+starts, or waiting for a bus after school. During the entire 
+school day, a school must have the authority to protect every­
+one on its premises, and therefore schools must be able to 
+prohibit threatening and harassing speech. An effective in­
+structional atmosphere could not be maintained in a school, 
+and good teachers would be hard to recruit and retain, if 
+students were free to abuse or disrespect them. And the 
+school has a duty to protect students while in school because 
+their parents are unable to do that during those hours. See 
+Morse, 551 U. S., at 424 (Alito, J., concurring). But even 
+when students are on school premises during regular school 
+hours, they are not stripped of their free-speech rights. 
+Tinker teaches that expression that does not interfere with 
+a class (such as by straying from the topic, interrupting the 
+teacher or other students, etc.) cannot be suppressed unless 
+it “involves substantial disorder or invasion of the rights of 
+others.” 393 U. S., at 513. 
+IV 
+A 
+A public school's regulation of off-premises student speech 
+is a different matter. While the decision to enroll a student 
+in a public school may be regarded as conferring the author­
+ity to regulate some off-premises speech (a subject I address 
+below), enrollment cannot be treated as a complete transfer 
+of parental authority over a student's speech. In our soci­
+ety, parents, not the State, have the primary authority and 
+
+202 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+duty to raise, educate, and form the character of their chil­
+dren. See Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) 
+(“The history and culture of Western civilization refect a 
+strong tradition of parental concern for the nurture and up­
+bringing of their children. This primary role of the parents 
+in the upbringing of their children is now established beyond 
+debate as an enduring American tradition”); Pierce v. Soci­
+ety of Sisters, 268 U. S. 510, 534–535 (1925) (discussing “the 
+liberty of parents and guardians to direct the upbringing and 
+education of children under their control”). Parents do not 
+implicitly relinquish all that authority when they send their 
+children to a public school. As the Court notes, it would be 
+far-fetched to suggest that enrollment implicitly confers the 
+right to regulate what a child says or writes at all times of 
+day and throughout the calendar year. See ante, at 189–190.14 
+Any such argument would run headlong into the fundamen­
+tal principle that a State “may not deny a beneft to a person 
+14 There is no basis for concluding that the original public meaning of 
+the free-speech right protected by the First and Fourteenth Amendments 
+was understood by Congress or the legislatures that ratifed those Amend­
+ments as permitting a public school to punish a wide swath of off-premises 
+student speech. Compare post, at 212–215 (Thomas, J., dissenting). At 
+the time of the adoption of the First Amendment, public education was 
+virtually unknown, and the Amendment did not apply to the States. And 
+as for the Fourteenth Amendment, research has found only one pre-1868 
+case involving a public school's regulation of a student's off-premises 
+speech. In Lander v. Seaver, 32 Vt. 114 (1859), an 11-year-old boy, while 
+driving his father's cow by the home of his teacher, called the teacher “Old 
+Jack Seaver” in the presence of other students. Id., at 115 (emphasis 
+deleted). The next day, the teacher “whipped him with a small rawhide.” 
+Ibid. In a tort suit against the teacher for assault and battery, the Su­
+preme Court of Vermont reversed the lower court's judgment for the 
+teacher but opined that the teacher had the authority to punish the stu­
+dent's speech because of its effect on the operation of the school. Id., at 
+120–121, 125. This decision is of negligible value for present purposes. 
+It does not appear that any claim was raised under the state constitutional 
+provision protecting freedom of speech. And even if finty Vermont par­
+ents at the time in question could be understood to have implicitly dele­
+gated to the teacher the authority to whip their son for his off-premises 
+speech, the same inference is wholly unrealistic today. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+203 
+Alito, J., concurring 
+on a basis that infringes his constitutionally protected . . . 
+freedom of speech even if he has no entitlement to that bene­
+ft.” 15 
+Agency for Int'l Development v. Alliance for Open 
+Society Int'l, Inc., 570 U. S. 205, 214 (2013) (internal quota­
+tion marks omitted). While the in-school restrictions dis­
+cussed above are essential to the operation of a public school 
+system, any argument in favor of expansive regulation of 
+off-premises speech must contend with this fundamental 
+free-speech principle. 
+B 
+The degree to which enrollment in a public school can be re­
+garded as a delegation of authority over off-campus speech de­
+pends on the nature of the speech and the circumstances under 
+which it occurs. I will not attempt to provide a complete tax­
+onomy of off-premises speech, but relevant lower court cases 
+tend to fall into a few basic groups. And with respect to 
+speech in each of these groups, the question that courts must 
+ask is whether parents who enroll their children in a public 
+school can reasonably be understood to have delegated to the 
+school the authority to regulate the speech in question. 
+One category of off-premises student speech falls easily 
+within the scope of the authority that parents implicitly or 
+explicitly provide. This category includes speech that takes 
+place during or as part of what amounts to a temporal or 
+spatial extension of the regular school program, e. g., online 
+instruction at home, assigned essays or other homework, and 
+transportation to and from school. Also included are state­
+ments made during other school activities in which students 
+participate with their parents' consent, such as school trips, 
+school sports and other extracurricular activities that may 
+take place after regular school hours or off school premises, 
+and after-school programs for students who would otherwise 
+be without adult supervision during that time. Abusive 
+15 Here, the Pennsylvania Constitution required that B. L. and all other 
+students be offered “a thorough and effcient system of public education.” 
+Art. III, § 14. 
+Page Proof Pending Publication
+
+204 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+speech that occurs while students are walking to and from 
+school may also fall into this category on the theory that it 
+is school attendance that puts students on that route and in 
+the company of the fellow students who engage in the abuse. 
+The imperatives that justify the regulation of student speech 
+while in school—the need for orderly and effective instruc­
+tion and student protection—apply more or less equally to 
+these off-premises activities. 
+Most of the specifc examples of off-premises speech that 
+the Court mentions fall into this category. See ante, at 188 
+(speech taking place during “remote learning,” “participation 
+in other online school activities,” “activities taken for school 
+credit,” “travel en route to and from the school,” “[the time 
+during which] the school is responsible for the student,” and 
+“extracurricular activities,” as well as speech taking place on 
+“the school's immediate surroundings” or in the context of 
+“writing . . . papers”).16 
+The Court's broad statements about 
+off-premises speech must be understood with this in mind. 
+16 Two other examples mentioned by the Court—“communications to 
+school e-mail accounts or phones” and speech “on a school's website”—may 
+fall into the same category if they concern school work. Ante, at 188. 
+The Court also mentions “breaches of school security devices,” ibid., but 
+such breaches may be punishable regardless of whether the perpetrator is 
+a student at the school. See, e. g., 18 Pa. Cons. Stat. § 7611 (Cum. Supp. 
+2016) (“Unlawful use of computer and other computer crimes”). Another 
+specifc example provided by the Court is “all speech taking place over 
+school laptops.” Ante, at 188. I do not take this statement to apply 
+under all circumstances to all student speech on such laptops. In a well-
+publicized case, a public high school that provided laptops to high school 
+students used those computers to surreptitiously monitor students' private 
+messages and to photograph them in their homes. See Robbins v. Lower 
+Merion School Dist., 2010 WL 3421026, *1 (ED Pa., Aug. 30, 2010); see 
+also Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion 
+for Class Certifcation and in Support of Defendants' Cross-Motion for 
+Entry of Permanent Equitable Relief in Robbins v. Lower Merion School 
+Dist., No. 2:10–cv–00665 (ED Pa.), pp. 4–5. I do not understand the Court 
+to approve such a practice. In assessing the degree to which a school can 
+regulate speech on a laptop that a school provides for student use outside 
+school, it would be important to know the terms of the agreement under 
+which the laptop was provided. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+205 
+Alito, J., concurring 
+At the other end of the spectrum, there is a category of 
+speech that is almost always beyond the regulatory author­
+ity of a public school. This is student speech that is not 
+expressly and specifcally directed at the school, school ad­
+ministrators, teachers, or fellow students and that addresses 
+matters of public concern, including sensitive subjects like 
+politics, religion, and social relations. Speech on such mat­
+ters lies at the heart of the First Amendment's protection, 
+see Lane v. Franks, 573 U. S. 228, 235 (2014) (“Speech by 
+citizens on matters of public concern lies at the heart of the 
+First Amendment”); Schenck v. Pro-Choice Network of West­
+ern N. Y., 519 U. S. 357, 377 (1997) (“Leafetting and com­
+menting on matters of public concern are classic forms of 
+speech that lie at the heart of the First Amendment”); Capi­
+tal Square Review and Advisory Bd. v. Pinette, 515 U. S. 
+753, 760 (1995) (“[A] free-speech clause without religion 
+would be Hamlet without the prince”); McIntyre v. Ohio 
+Elections Comm'n, 514 U. S. 334, 347 (1995) (“[A]dvocacy of 
+a politically controversial viewpoint . . . is the essence of 
+First Amendment expression”); Hustler Magazine, Inc. v. 
+Falwell, 485 U. S. 46, 50 (1988) (“At the heart of the First 
+Amendment is the recognition of the fundamental impor­
+tance of the free fow of ideas and opinions on matters of 
+public interest and concern”); Connick v. Myers, 461 U. S. 
+138, 145 (1983) (“[S]peech on public issues occupies the high­
+est rung of the hierarchy of First Amendment values, and 
+is entitled to special protection” (internal quotation marks 
+omitted)), and the connection between student speech in this 
+category and the ability of a public school to carry out its 
+instructional program is tenuous. 
+If a school tried to regulate such speech, the most that it 
+could claim is that offensive off-premises speech on impor­
+tant matters may cause controversy and recriminations 
+among students and may thus disrupt instruction and good 
+order on school premises. But it is a “bedrock principle” 
+that speech may not be suppressed simply because it ex­
+presses ideas that are “offensive or disagreeable.” Texas v. 
+Page Proof Pending Publication
+
+206 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+Johnson, 491 U. S. 397, 414 (1989); see also Matal v. Tam, 
+582 U. S. 218, 223 (2017) (“Speech may not be banned on the 
+ground that it expresses ideas that offend”); FCC v. Pacifca 
+Foundation, 438 U. S. 726, 745 (1978) (opinion of Stevens, J.) 
+(“[T]he fact that society may fnd speech offensive is not a 
+suffcient reason for suppressing it”); Young v. American 
+Mini Theatres, Inc., 427 U. S. 50, 63–64 (1976) (plurality 
+opinion) (“Nor may speech be curtailed because it invites dis­
+pute, creates dissatisfaction with conditions the way they 
+are, or even stirs people to anger”); Street v. New York, 394 
+U. S. 576, 592 (1969) (“It is frmly settled that under our Con­
+stitution the public expression of ideas may not be prohibited 
+merely because the ideas are themselves offensive to some 
+of their hearers”). It is unreasonable to infer that parents 
+who send a child to a public school thereby authorize the 
+school to take away such a critical right. 
+To her credit, petitioner's attorney acknowledged this dur­
+ing oral argument. As she explained, even if such speech is 
+deeply offensive to members of the school community and 
+may cause a disruption, the school cannot punish the student 
+who spoke out; “that would be a heckler's veto.” Tr. of Oral 
+Arg. 15–16.17 
+The school may suppress the disruption, but 
+it may not punish the off-campus speech that prompted other 
+students to engage in misconduct. See id., at 5–6 (“[I]f lis­
+teners riot because they fnd speech offensive, schools should 
+punish the rioters, not the speaker. In other words, the 
+hecklers don't get the veto”); see also id., at 27–28. 
+This is true even if the student's off-premises speech on a 
+matter of public concern is intemperate and crude. When a 
+17 Counsel was asked what a school could have done during the Vietnam 
+War era if a student said, “[the] war is immoral, American soldiers are 
+baby killers, I hope there are a lot of casualties so that people will rise up.” 
+Tr. of Oral Arg. 15. Counsel agreed that “[e]ven if that would cause a dis­
+ruption in the school,” “the school couldn't do anything about it.” Ibid. 
+In her words, “that would be a heckler's veto, no can do.” Id., at 15–16. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+207 
+Alito, J., concurring 
+student engages in oral or written communication of this na­
+ture, the student is subject to whatever restraints the stu­
+dent's parents impose, but the student enjoys the same First 
+Amendment protection against government regulation as all 
+other members of the public. And the Court has held that 
+these rights extend to speech that is couched in vulgar and 
+offensive terms. See, e. g., Iancu v. Brunetti, 588 U. S. 388 
+(2019); Matal, 582 U. S. 218; Snyder v. Phelps, 562 U. S. 443 
+(2011); Cohen v. California, 403 U. S. 15 (1971); Brandenburg 
+v. Ohio, 395 U. S. 444 (1969) (per curiam). 
+Between these two extremes (i. e., off-premises speech 
+that is tantamount to on-campus speech and general state­
+ments made off premises on matters of public concern) lie 
+the categories of off-premises student speech that appear to 
+have given rise to the most litigation. A survey of lower 
+court cases reveals several prominent categories. I will 
+mention some of those categories, but like the Court, I do 
+not attempt to set out the test to be used in judging the 
+constitutionality of a public school's efforts to regulate such 
+speech. 
+One group of cases involves perceived threats to school 
+administrators, teachers, other staff members, or students. 
+Laws that apply to everyone prohibit defned categories of 
+threats,18 see, e. g., 18 Pa. Cons. Stat. § 2706(a); 19 Tex. Penal 
+18 The First Amendment permits prohibitions of “true threats,” which 
+are “statements where the speaker means to communicate a serious ex­
+pression of an intent to commit an act of unlawful violence to a particular 
+individual or group of individuals.” Virginia v. Black, 538 U. S. 343, 359 
+(2003). 
+19 This law is commonly referred to as Pennsylvania's “terrorist threat 
+statute.” It prohibits “communicat[ing], either directly or indirectly, a 
+threat to: (1) commit any crime of violence with intent to terrorize an­
+other; (2) cause evacuation of a building, place of assembly or facility of 
+public transportation; or (3) otherwise cause serious public inconvenience, 
+or cause terror or serious public inconvenience with reckless disregard of 
+the risk of causing such terror or inconvenience.” 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+208 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+Code Ann. § 22.07(a) (West 2020),20 but schools have claimed 
+that their duties demand broader authority.21 
+Another common category involves speech that criticizes 
+or derides school administrators, teachers, or other staff 
+members.22 
+Schools may assert that parents who send their 
+children to a public school implicitly authorize the school to 
+demand that the child exhibit the respect that is required 
+for orderly and effective instruction, but parents surely do 
+not relinquish their children's ability to complain in an appro­
+priate manner about wrongdoing, dereliction, or even plain 
+20 In Texas, it is a crime to “threate[n] to commit any offense involving 
+violence to any person or property” with specifed intent, such as the in­
+tent to “place another person in fear of imminent serious bodily injury” or 
+to “interrupt the occupation or use of a . . . public place.” 
+21 See, e. g., McNeil v. Sherwood School Dist. 88J, 918 F. 3d 700, 704 
+(CA9 2019) (per curiam) (student created a “hit list” of students and drew 
+graphic images of violence); Wynar v. Douglas County School Dist., 728 
+F. 3d 1062, 1065–1066 (CA9 2013) (student spoke about committing a school 
+shooting); Wisniewski v. Board of Ed., 494 F. 3d 34, 36 (CA2 2007) (student 
+sent a message depicting a pistol fring a bullet at his English teacher's 
+head); Porter v. Ascension Parish School Bd., 393 F. 3d 608, 611 (CA5 
+2004) (student drew a picture showing his school under attack by a gaso­
+line tanker, missile launcher, helicopter, and armed individuals); Doe v. 
+Pulaski County Special School Dist., 306 F. 3d 616, 619 (CA8 2002) (en 
+banc) (student drafted letters expressing a desire to molest, rape, and 
+murder his ex-girlfriend); but see Conroy v. Lacey Twp. School Dist., 2020 
+WL 528896, *1 (D NJ, Jan. 31, 2020) (two high school students posted 
+photos on Snapchat showing them with legally purchased guns at a shoot­
+ing range on a Saturday, which another student claimed made him “ `ner­
+vous to come to school' ”); see also Conroy v. Lacey Twp. School Dist., 
+No. 3:19–cv–09452 (D NJ, Aug. 25, 2020) (order dismissing case with preju­
+dice after settlement). The cases cited in this footnote and footnotes 22– 
+23 are listed to show types of claims addressed by the lower courts. I do 
+not express any view about the correctness of the decisions. 
+22 See, e. g., Doninger v. Niehoff, 527 F. 3d 41, 45 (CA2 2008) (member 
+of student council posted a message on her personal blog complaining 
+about the administration and encouraging readers to call or e-mail the 
+school to complain); Evans v. Bayer, 684 F. Supp. 2d 1365, 1367 (SD Fla. 
+2010) (student created a Facebook group “for students to voice their dis­
+like” of their teacher). 
+
+Cite as: 594 U. S. 180 (2021) 
+209 
+Alito, J., concurring 
+incompetence. See Brief for College Athlete Advocates as 
+Amicus Curiae 12–21; Brief for Student Press Law Center 
+et al. as Amici Curiae 10–11, 17–20, 30. 
+Perhaps the most diffcult category involves criticism or 
+hurtful remarks about other students.23 
+Bullying and se­
+vere harassment are serious (and age-old) problems, but 
+these concepts are not easy to defne with the precision re­
+quired for a regulation of speech. See, e. g., Saxe v. State 
+College Area School Dist., 240 F. 3d 200, 206–207 (CA3 2001). 
+V 
+The present case does not fall into any of these categories. 
+Instead, it simply involves criticism (albeit in a crude man­
+ner) of the school and an extracurricular activity. Unfat­
+tering speech about a school or one of its programs is dif­
+ferent from speech that criticizes or derides particular 
+individuals, and for the reasons detailed by the Court and 
+by Judge Ambro in his separate opinion below, the school's 
+justifcations for punishing B. L.'s speech were weak. She 
+sent the messages and image in question on her own time 
+while at a local convenience store. They were transmitted 
+via a medium that preserved the communication for only 24 
+hours, and she sent them to a select group of “friends.” She 
+did not send the messages to the school or to any administra­
+tor, teacher, or coach, and no member of the school staff 
+would have even known about the messages if some of B. L.'s 
+“friends” had not taken it upon themselves to spread the 
+word. 
+23 See, e. g., S. J. W. v. Lee's Summit R–7 School Dist., 696 F. 3d 771, 
+773–774 (CA8 2012) (high school juniors posted a variety of offensive, rac­
+ist, and sexually-explicit comments about particular female classmates); 
+Kowalski v. Berkeley County Schools, 652 F. 3d 565, 567–568 (CA4 2011) 
+(student created an online discussion group accusing another student of 
+having a sexually-transmitted disease); Dunkley v. Board of Ed. of 
+Greater Egg Harbor Regional High School Dist., 216 F. Supp. 3d 485, 487 
+(NJ 2016) (student used an anonymous Twitter account to insult other 
+students based on their appearances and athletic abilities). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+210 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Alito, J., concurring 
+The school did not claim that the messages caused any sig­
+nifcant disruption of classes. The most it asserted along 
+these lines was that they “upset” some students (including 
+members of the cheerleading squad),24 caused students to ask 
+some questions about the matter during an algebra class 
+taught by a cheerleading coach,25 and put out “negativity . . . 
+that could impact students in the school.” 26 
+The freedom of 
+students to speak off-campus would not be worth much if it 
+gave way in the face of such relatively minor complaints. 
+Speech cannot be suppressed just because it expresses 
+thoughts or sentiments that others fnd upsetting, and the 
+algebra teacher had the authority to quell in-class discussion 
+of B. L.'s messages and demand that the students concen­
+trate on the work of the class. 
+As for the messages' effect on the morale of the cheerlead­
+ing squad, the coach of a team sport may wish to take group 
+cohesion and harmony into account in selecting members of 
+the team, in assigning roles, and in allocating playing time, 
+but it is self-evident that this authority has limits. (To take 
+an obvious example, a coach could not discriminate against a 
+student for blowing the whistle on serious misconduct.) 
+And here, the school did not simply take B. L.'s messages 
+into account in deciding whether her attitude would make 
+her effective in doing what cheerleaders are primarily ex­
+pected to do: encouraging vocal fan support at the events 
+where they appear. Instead, the school imposed punish­
+ment: suspension for a year from the cheerleading squad de­
+spite B. L.'s apologies. 
+There is, fnally, the matter of B. L.'s language. There are 
+parents who would not have been pleased with B. L.'s lan­
+guage and gesture, but whatever B. L.'s parents thought 
+about what she did, it is not reasonable to infer that they 
+gave the school the authority to regulate her choice of lan­
+24 App. 82. 
+25 Id., at 82–84. 
+26 Id., at 81. 
+
+Cite as: 594 U. S. 180 (2021) 
+211 
+Thomas, J., dissenting 
+guage when she was off school premises and not engaged in 
+any school activity. And B. L.'s school does not claim that 
+it possesses or makes any effort to exercise the authority to 
+regulate the vocabulary and gestures of all its students 24 
+hours a day and 365 days a year. 
+There are more than 90,000 public school principals in this 
+country27 and more than 13,000 separate school districts.28 
+The overwhelming majority of school administrators, teach­
+ers, and coaches are men and women who are deeply dedi­
+cated to the best interests of their students, but it is predict­
+able that there will be occasions when some will get carried 
+away, as did the school offcials in the case at hand. If to­
+day's decision teaches any lesson, it must be that the regula­
+tion of many types of off-premises student speech raises seri­
+ous First Amendment concerns, and school offcials should 
+proceed cautiously before venturing into this territory. 
+Justice Thomas, dissenting. 
+B. L., a high school student, sent a profanity-laced message 
+to hundreds of people, including classmates and teammates. 
+The message included a picture of B. L. raising her middle 
+fnger and captioned “F*** school” and “f*** cheer.” This 
+message was juxtaposed with another, which explained that 
+B. L. was frustrated that she failed to make the varsity 
+cheerleading squad. The cheerleading coach responded by 
+disciplining B. L. 
+The Court overrides that decision—without even mention­
+ing the 150 years of history supporting the coach. Using 
+broad brushstrokes, the majority outlines the scope of school 
+27 See NCES, School Principals, Table 212.08: Number and Percentage 
+Distribution in Public and Private Elementary and Secondary Schools, 
+Selected Years 1993–1994 Through 2017–2018, https://nces.ed.gov/ 
+programs/digest/d19/tables/dt19_212.08.asp?current=yes. 
+28 See NCES, Overview of Schools and School Districts, Table 214.10: 
+Number of Public School Districts and Public and Private Elementary and 
+Secondary Schools, Selected Years 1869–1870 Through 2018–2019, https:// 
+nces.ed.gov/programs/digest/d20/tables/dt20_214.10.asp. 
+Page Proof Pending Publication
+
+212 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Thomas, J., dissenting 
+authority. When students are on campus, the majority says, 
+schools have authority in loco parentis—that is, as substi­
+tutes of parents—to discipline speech and conduct. Off cam­
+pus, the authority of schools is somewhat less. At that level 
+of generality, I agree. But the majority omits important de­
+tail. What authority does a school have when it operates in 
+loco parentis? How much less authority do schools have 
+over off-campus speech and conduct? And how does a court 
+decide if speech is on or off campus? 
+Disregarding these important issues, the majority simply 
+posits three vague considerations and reaches an outcome. 
+A more searching review reveals that schools historically 
+could discipline students in circumstances like those pre­
+sented here. Because the majority does not attempt to ex­
+plain why we should not apply this historical rule and does 
+not attempt to tether its approach to anything stable, I re­
+spectfully dissent. 
+I 
+A 
+While the majority entirely ignores the relevant history, I 
+would begin the assessment of the scope of free-speech 
+rights incorporated against the States by looking to “what 
+`ordinary citizens' at the time of [the Fourteenth Amend­
+ment's] ratifcation would have understood” the right to en­
+compass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) 
+(Thomas, J., concurring in part and concurring in judgment). 
+Cases and treatises from that era reveal that public schools 
+retained substantial authority to discipline students. As I 
+have previously explained, that authority was near plenary 
+while students were at school. See Morse v. Frederick, 551 
+U. S. 393, 419 (2007) (concurring opinion). Authority also 
+extended to when students were traveling to or from school. 
+See, e. g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, 
+although schools had less authority after a student returned 
+home, it was well settled that they still could discipline stu­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 180 (2021) 
+213 
+Thomas, J., dissenting 
+dents for off-campus speech or conduct that had a proximate 
+tendency to harm the school environment. 
+Perhaps the most familiar example applying this rule is a 
+case where a student, after returning home from school, used 
+“disrespectful language” against a teacher—he called the 
+teacher “old”—“in presence of the [teacher] and of some of 
+his fellow pupils.” Id., at 115 (emphasis deleted). The Ver­
+mont Supreme Court held that the teacher could discipline a 
+student for this speech because the speech had “a direct and 
+immediate tendency to injure the school, to subvert the mas-
+ter's authority, and to beget disorder and insubordination.” 
+Id., at 120; see also ibid. (“direct and immediate tendency to 
+. . . bring the master's authority into contempt”). The court 
+distinguished the speech at issue from speech “in no ways 
+connected with or affecting the school” and speech that has 
+“merely a remote and indirect tendency to injure.” Id., at 
+120–121. In requiring a “direct and immediate tendency” to 
+harm, id., at 120, the court used the language of proximate 
+causation, see Black's Law Dictionary 274 (11th ed. 2019) (de­
+fning “proximate cause” as a “cause that directly produces 
+an event”); id., at 1481 (defning “proximate” as “[i]mmedi­
+ately before or after”); see also Atchison, T. & S. F. R. Co. v. 
+Calhoun, 213 U. S. 1, 7 (1909) (using “proximate” cause and 
+“immediate” cause interchangeably). 
+This rule was widespread. It was consistent with “the 
+universal custom” in New England. Lander, 32 Vt., at 121. 
+Various cases, treatises, and school manuals endorsed it.* 
+And a justice of the Rhode Island Supreme Court, presiding 
+over a trial, declared the rule “well settled.” T. Stockwell, 
+*E. g., Deskins v. Gose, 85 Mo. 485, 488–489 (1885) (citing Lander); 
+F. Burke, Law of Public Schools 116, 129 (1880) (“[W]hatsoever has a direct 
+and immediate tendency to injure the school in its important interests, or 
+to subvert the authority of those in charge of it, is properly a subject for 
+regulation and discipline, and this is so wherever the acts may be com­
+mitted” (citing Lander)); C. Bardeen, The New York School Offce's Hand­
+book 158 (1910) (citing Lander). 
+
+Page Proof Pending Publication
+214 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Thomas, J., dissenting 
+The School Manual, Containing the School Laws of Rhode 
+Island 236–238 (1882) (Stockwell). 
+So widespread was this rule that it served not only as the 
+basis for schools to discipline disrespectful speech but also to 
+regulate truancy. Although modern doctrine draws a clear 
+line between speech and conduct, cases in the 19th century 
+did not. E. g., Lander, 32 Vt., at 120 (describing speech as 
+“acts of misbehavior”); Stockwell 236–238 (applying the 
+Lander rule to “[t]he conduct of pupils”); Morse, 551 U. S., at 
+419 (Thomas, J., concurring) (“speech rules and other school 
+rules were treated identically”). Citing Lander, schools jus­
+tifed regulating truancy because of its proximate tendency 
+to harm schools. As the Missouri Supreme Court put it, al­
+though “[t]ruancy is an act committed out of the school,” 
+schools could regulate it because of its “subversive” effects 
+on the “good order and discipline of the school.” Deskins v. 
+Gose, 85 Mo. 485, 488–489 (1885); see also Burdick v. Bab­
+cock, 31 Iowa 562, 565, 567 (1871) (“If the effects of acts done 
+out of school-hours reach within the schoolroom during 
+school hours and are detrimental to good order and the best 
+interest of the pupils, it is evident that such acts may be 
+forbidden”). 
+Some courts made statements that, if read in isolation, 
+could suggest that schools had no authority at all to regulate 
+off-campus speech. E. g., Dritt v. Snodgrass, 66 Mo. 286, 297 
+(1877) (Norton, J., joined by a majority of the court, concur­
+ring) (“neither the teacher nor directors have the authority 
+to follow [a student home], and govern his conduct while 
+under the parental eye” because that would “supersede en­
+tirely parental authority”). But, these courts made it clear 
+that the rule against regulating off-campus speech applied 
+only when that speech was “nowise connected with the man­
+agement or successful operation of the school.” King v. 
+Jefferson City School Bd., 71 Mo. 628, 630 (1880) (distin­
+guishing Dritt); accord, Lander, 32 Vt., at 120–121 (similar). 
+In other words, they followed Lander: A school can regulate 
+
+Cite as: 594 U. S. 180 (2021) 
+215 
+Thomas, J., dissenting 
+speech when it occurs off campus, so long as it has a proxi­
+mate tendency to harm the school, its faculty or students, or 
+its programs. 
+B 
+If there is a good constitutional reason to depart from this 
+historical rule, the majority and the parties fail to identify it. 
+I would thus apply the rule. Assuming that B. L.'s speech 
+occurred off campus, the purpose and effect of B. L.'s speech 
+was “to degrade the [program and cheerleading staff]” in 
+front of “other pupils,” thus having “a direct and immediate 
+tendency to . . . subvert the [cheerleading coach's] authority.” 
+Id., at 115, 120. As a result, the coach had authority to disci­
+pline B. L. 
+Our modern doctrine is not to the contrary. “[T]he penal­
+ties imposed in this case were unrelated to any political 
+viewpoint” or religious viewpoint. Bethel School Dist. No. 
+403 v. Fraser, 478 U. S. 675, 685 (1986). And although the 
+majority sugar coats this speech as “criticism,” ante, at 190– 
+191, it is well settled that schools can punish “vulgar” 
+speech—at least when it occurs on campus, e. g., Fraser, 478 
+U. S., at 683–684; ante, at 187–188. 
+The discipline here—a 1-year suspension from the team— 
+may strike some as disproportionate. Tr. of Oral Arg. 31, 
+57. But that does not matter for our purposes. State 
+courts have policed school disciplinary decisions for “reason­
+able[ness].” E. g., Burdick, 31 Iowa, at 565. And dispro­
+portionate discipline “can be challenged by parents in the 
+political process.” Morse, 551 U. S., at 420 (Thomas, J., 
+concurring). But the majority and the parties provide no 
+textual or historical evidence to suggest that federal courts 
+generally can police the proportionality of school disciplinary 
+decisions in the name of the First Amendment. 
+II 
+The majority declines to consider any of this history, in­
+stead favoring a few pragmatic guideposts. This is not the 
+Page Proof Pending Publication
+
+216 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Thomas, J., dissenting 
+frst time the Court has chosen intuition over history when 
+it comes to student speech. The larger problem facing us 
+today is that our student-speech cases are untethered from 
+any textual or historical foundation. That failure leads the 
+majority to miss much of the analysis relevant to these kinds 
+of cases. 
+A 
+Consider the Court's longtime failure to grapple with the 
+historical doctrine of in loco parentis. As I have previously 
+explained, the Fourteenth Amendment was ratifed against 
+the background legal principle that publicly funded schools 
+operated not as ordinary state actors, but as delegated sub­
+stitutes of parents. Id., at 411–413. This principle freed 
+schools from the constraints the Fourteenth Amendment 
+placed on other government actors. “[N]o one doubted the 
+government's ability to educate and discipline children as 
+private schools did,” including “through strict discipline . . . 
+for behavior the school considered disrespectful or wrong.” 
+Id., at 411–412. “The doctrine of in loco parentis limited 
+the ability of schools to set rules and control their classrooms 
+in almost no way.” Id., at 416. 
+Plausible arguments can be raised in favor of departing 
+from that historical doctrine. 
+When the Fourteenth 
+Amendment was ratified, just three jurisdictions had 
+compulsory-education laws. M. Katz, A History of Compul­
+sory Education Laws 17 (1976). One might argue that the 
+delegation logic of in loco parentis applies only when delega­
+tion is voluntary. But cf. id., at 11–13 (identifying analogs 
+to compulsory-education laws as early as the 1640s); Pierce 
+v. Society of Sisters, 268 U. S. 510 (1925) (requiring States to 
+permit parents to send their children to nonpublic schools). 
+The Court, however, did not make that (or any other) argu­
+ment against this historical doctrine. 
+Instead, the Court simply abandoned the foundational rule 
+without mentioning it. See Tinker v. Des Moines Independ­
+ent Community School Dist., 393 U. S. 503 (1969). Rather 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+217 
+Thomas, J., dissenting 
+than wrestle with this history, the Court declared that it 
+“ha[d] been the unmistakable holding of this Court for almost 
+50 years” that students have free-speech rights inside 
+schools. Id., at 506. “But the cases the Court cited in favor 
+of that bold proposition do not support it.” Morse, 551 U. S., 
+at 420, n. 8 (Thomas, J., concurring). The cases on which 
+Tinker chiefy relied concerned the rights of parents and pri­
+vate schools, not students. 551 U. S., at 420, n. 8. Of the 
+11 cases the Court cited, only one—West Virginia Bd. of Ed. 
+v. Barnette, 319 U. S. 624 (1943)—was on point. But, like 
+Tinker, Barnette failed to mention the historical doctrine un­
+dergirding school authority. Not until decades later did the 
+Court even hint at this doctrine, and, then, only as an aside. 
+See Fraser, 478 U. S., at 684. 
+The majority does no better today. At least it acknowl­
+edges that schools act in loco parentis when students speak 
+on campus. See, e. g., ante, at 187. But the majority fails 
+to address the historical contours of that doctrine, whether 
+the doctrine applies to off-campus speech, or why the Court 
+has abandoned it. 
+B 
+The Court's failure to explain itself in Tinker needlessly 
+makes this case more diffcult. Unlike Tinker, which in­
+volved a school's authority under a straightforward fact 
+pattern, this case involves speech made in one location but 
+capable of being received in countless others—an issue that 
+has been aggravated exponentially by recent technological 
+advances. The Court's decision not to create a solid founda­
+tion in Tinker, and now here not to consult the relevant his­
+tory, predictably causes the majority to ignore relevant 
+analysis. 
+First, the majority gives little apparent signifcance to 
+B. L.'s decision to participate in an extracurricular activity. 
+But the historical test suggests that authority of schools over 
+off-campus speech may be greater when students participate 
+in extracurricular programs. The Lander test focuses on 
+Page Proof Pending Publication
+
+218 
+MAHANOY AREA SCHOOL DIST. v. B. L. 
+Thomas, J., dissenting 
+the effect of speech, not its location. So students like B. L. 
+who are active in extracurricular programs have a greater 
+potential, by virtue of their participation, to harm those pro­
+grams. For example, a profanity-laced screed delivered on 
+social media or at the mall has a much different effect on a 
+football program when done by a regular student than when 
+done by the captain of the football team. So, too, here. 
+Second, the majority fails to consider whether schools 
+often will have more authority, not less, to discipline stu­
+dents who transmit speech through social media. Because 
+off-campus speech made through social media can be re­
+ceived on campus (and can spread rapidly to countless peo­
+ple), it often will have a greater proximate tendency to harm 
+the school environment than will an off-campus in-person 
+conversation. 
+Third, and relatedly, the majority uncritically adopts the 
+assumption that B. L.'s speech, in fact, was off campus. But, 
+the location of her speech is a much trickier question than 
+the majority acknowledges. Because speech travels, schools 
+sometimes may be able to treat speech as on campus even 
+though it originates off campus. Nobody doubts, for exam­
+ple, that a school has in loco parentis authority over a 
+student (and can discipline him) when he passes out vulgar 
+fyers on campus—even if he creates those fyers off campus. 
+The same may be true in many contexts when social media 
+speech is generated off campus but received on campus. To 
+be sure, this logic might not apply where the on-campus 
+presence of speech is not proximately connected to its off-
+campus origin—as when a student “wholly accidental[ly]” 
+brings a sibling's sketch to school years after it is created. 
+Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, 
+617–618 (CA5 2004). This break in proximate causation 
+might occur more often when a school prohibits the use of 
+personal devices or social media on campus. See Tr. of Oral 
+Arg. 68–69. But where it is foreseeable and likely that 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 180 (2021) 
+219 
+Thomas, J., dissenting 
+speech will travel onto campus, a school has a stronger claim 
+to treating the speech as on-campus speech. 
+Here, it makes sense to treat B. L.'s speech as off-campus 
+speech. There is little evidence that B. L.'s speech was re­
+ceived on campus. The cheerleading coach, in fact, did not 
+view B. L.'s speech. She viewed a copy of that speech (a 
+screenshot) created by another student. Ante, at 185. But, 
+the majority mentions none of this. It simply, and uncriti­
+cally, assumes that B. L.'s speech was off campus. Because 
+it creates a test untethered from history, it bypasses this 
+relevant inquiry. 
+*
+*
+* 
+The Court transparently takes a common-law approach to 
+today's decision. In effect, it states just one rule: Schools 
+can regulate speech less often when that speech occurs off 
+campus. It then identifes this case as an “example” and 
+“leav[es] for future cases” the job of developing this new 
+common-law doctrine. Ante, at 190. But the Court's foun­
+dation is untethered from anything stable, and courts (and 
+schools) will almost certainly be at a loss as to what exactly 
+the Court's opinion today means. 
+Perhaps there are good constitutional reasons to depart 
+from the historical rule, and perhaps this Court and lower 
+courts will identify and explain these reasons in the future. 
+But because the Court does not do so today, and because it 
+reaches the wrong result under the appropriate historical 
+test, I respectfully dissent. 
+Page Proof Pending Publication
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@@ -0,0 +1,759 @@
+ 
+Cite as: 607 U. S. ____ (2026) 
+1 
+ 
+ALITO, J., concurring 
+SUPREME COURT OF THE UNITED STATES 
+_________________ 
+No. 25A914 
+_________________ 
+NICOLE MALLIOTAKIS, ET AL. v. MICHAEL 
+WILLIAMS, ET AL. 
+ON APPLICATION FOR STAY 
+_________________ 
+No. 25A915 
+_________________ 
+PETER KOSINSKI, ET AL. v. MICHAEL 
+WILLIAMS, ET AL. 
+ON APPLICATION FOR STAY 
+[March 2, 2026]
+ The applications for stay presented to JUSTICE 
+SOTOMAYOR and by her referred to the Court are granted.  
+The January 21, 2026 order entered by the Supreme Court 
+of the State of New York, New York County, Index No. 
+164002/2025, is stayed pending the disposition of the ap-
+peal in the New York state courts and disposition of a peti-
+tion for a writ of certiorari in this Court, if such a writ is 
+timely sought.  Should certiorari be denied, this stay shall 
+terminate automatically.  In the event certiorari is granted, 
+the stay shall terminate upon the issuance of the mandate 
+of this Court. 
+ JUSTICE ALITO, concurring in grant of stay. 
+ These cases concern a state-court order that blatantly 
+discriminates on the basis of race.  The New York Supreme 
+Court (that State’s trial-level court) ordered the New York 
+Independent Redistricting Commission to draw a new con-
+gressional district for the express purpose of ensuring that 
+“minority voters” are able to elect the candidate of their 
+choice.  1 App. to Emergency Application for Stay 15a. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+MALLIOTAKIS v. WILLIAMS 
+ALITO, J., concurring 
+That is unadorned racial discrimination, an inherently 
+“‘odious’” activity that violates the Fourteenth Amend­
+ment’s Equal Protection Clause except in the “most extraor­
+dinary case.”  Students for Fair Admissions, Inc. v. Presi­
+dent and Fellows of Harvard College, 600 U. S. 181, 208 
+(2023). Extraordinary circumstances exist only when the
+challenged state conduct is narrowly tailored to achieve a 
+“compelling” interest, and our precedents have identified 
+only two compelling interests that can justify race-based 
+government action: (1) mitigating prison-specific risks and 
+(2) “remediating specific, identified instances of past dis­
+crimination that violated the Constitution or a statute.” 
+Id., at 206–207.  Neither of those interests is present here. 
+Instead, the court based its injunction on an interpretation
+of state law. But under the Supremacy Clause, a state law 
+cannot authorize the violation of federal rights.  It is there­
+fore an understatement to say that applicants are likely to 
+succeed on the merits of their equal protection claim.
+Despite this, the New York courts refused to stay the trial
+court’s order. After that highly questionable injunction was
+issued, the applicants filed appeals in both the Appellate
+Division (the State’s intermediate appellate court) and the
+Court of Appeals (its highest court) challenging the trial
+court’s order on federal constitutional grounds.  At the same 
+time, applicants asked both courts to stay the trial court’s 
+order. The Appellate Division refused to issue a stay, and
+by order issued on February 11, the Court of Appeals sent 
+the appeal filed in that court to the Appellate Division and 
+dismissed applicants’ motions for a stay. 
+With nowhere else to turn, the applicants asked us to is­
+sue a stay, and we have jurisdiction to entertain their ap­
+plication. Title 28 U. S. C. §1257(a) gives us jurisdiction to
+review “[f]inal judgments or decrees” that are rendered by 
+a State’s highest court and adjudicate federal constitutional 
+claims, and the Court of Appeals’ February 11 order falls
+within that category.  Our decision in National Socialist 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 607 U. S. ____ (2026) 
+ALITO, J., concurring 
+Party of America v. Skokie, 432 U. S. 43, 44 (1977) (per cu­
+riam), makes that clear.  In that case, a trial court issued 
+an injunction that prohibited petitioner’s members from en­
+gaging in various forms of expression.  Without providing 
+any reasoning, both the State’s intermediate appellate
+court and supreme court denied applications for a stay 
+pending appeal, and the latter court also refused to hear the 
+stay applicants’ appeal prior to the time when their consti­
+tutional rights would be violated. See App. to Application 
+for Stay in National Socialist Party of America v. Skokie, 
+O. T. 1976, No. 76-1786, pp. 5a–7a (unreasoned orders by
+the State’s intermediate and supreme courts). We held that 
+by “den[ying] both the stay and leave for an expedited ap­
+peal,” the State Supreme Court was necessarily rendering
+a final judgment or decree on “the merits of petitioners’ 
+claim that the outstanding injunction will deprive them of
+rights protected by the” Constitution “during the period of
+appellate review.” Skokie, 432 U. S., at 43–44.  The same 
+is true here: The New York Court of Appeals’ decision not
+to grant a stay or hear a direct appeal was effectively a final
+determination on the merits of the applicants’ claim that 
+the outstanding injunction is depriving them of their con­
+stitutional rights pending appeal. Because the situation 
+here is not materially different from that in Skokie, we have 
+jurisdiction.
+We are likewise authorized to grant a stay because it is
+“necessary or appropriate in aid of [our] jurisdiction.”  28 
+U. S. C. §1651(a).  That requirement is met when a stay is
+“necessary to prevent a state court from so interfering with
+a federal court’s consideration or disposition of a case as to 
+seriously impair the federal court’s flexibility and authority 
+to decide that case.” Atlantic Coast Line R. Co. v. Locomo­
+tive Engineers, 398 U. S. 281, 295 (1970). 
+That is the situation here because there is an unaccepta­
+bly strong possibility that the applicants’ appeal in the state 
+court system will not conclude until it is too late for us to 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+4 
+MALLIOTAKIS v. WILLIAMS 
+ALITO, J., concurring 
+review the ultimate decision by means of a writ of certio­
+rari, even if it appears that the decision is based on a seri­
+ously mistaken understanding of the Constitution.  By
+then, the principle of restraint we recognized in Purcell v. 
+Gonzalez, 549 U. S. 1 (2006) (per curiam), may counsel
+against the issuance of an injunction.  An injunction is an
+equitable remedy, and such relief may be inequitable if it is
+issued shortly before an election, when candidates, election 
+officials, and voters have relied on the rules in place at that 
+time. Ibid. 
+At this point, however, the Purcell principle does not
+counsel against a stay. That principle concerns “[l]ate judi­
+cial tinkering” that “can lead to disruption and to unantici­
+pated and unfair consequences for candidates, political par­
+ties, and voters, among others.” Merrill v. Milligan, 595 
+U. S. ___, ___ (2022) (KAVANAUGH, J., concurring in grant 
+of application for stay) (slip op., at 4).  Here, our stay, far 
+from causing disruption or upsetting legitimate expecta­
+tions, eliminates much of the uncertainty and confusion 
+that would exist if the Independent Redistricting Commis­
+sion proceeded to draw a new district that this Court would 
+likely strike down if the cases reached us in time.
+For these reasons, the stay issued by the Court rests on
+sound and well-established legal grounds.  JUSTICE 
+SOTOMAYOR’s accusation of two-faced practice, post, at 1, is 
+baseless, and her 13-page dissent is most notable for what 
+it conspicuously omits: even the most tepid imaginable de­
+fense of the constitutionality of the trial court’s order. In­
+stead, her disquisition ducks that issue and demands that 
+we wait until the completion of a series of events that would 
+likely run out the clock before we could review the order.
+That would provide a way of achieving what full review
+would not permit: the use of an unconstitutional district in
+the November election and the election of a Member of the 
+House of Representatives whose entitlement to the office 
+would be tainted.  That is a prospect this Court should not 
+countenance. 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+1 
+ 
+SOTOMAYOR, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+_________________ 
+No. 25A914 
+_________________ 
+NICOLE MALLIOTAKIS, ET AL. v. MICHAEL 
+WILLIAMS, ET AL. 
+ON APPLICATION FOR STAY 
+_________________ 
+No. 25A915 
+_________________ 
+PETER KOSINSKI, ET AL. v. MICHAEL 
+WILLIAMS, ET AL. 
+ON APPLICATION FOR STAY 
+[March 2, 2026] 
+ JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 
+JUSTICE JACKSON join, dissenting from grant of stay. 
+ The Court’s 101-word unexplained order can be summa-
+rized in just 7: “Rules for thee, but not for me.”  Time and 
+again, this Court has said that federal courts have limited 
+jurisdiction.  Time and again, this Court has said that fed-
+eral courts should not interfere with state-court litigation.  
+Time and again, this Court has said that federal courts 
+should not meddle with state election laws ahead of an elec-
+tion.  Today, the Court says: except for this one, except for 
+this one, and except for this one.  Ignoring every limit on 
+federal courts’ authority, the Court takes the unprece-
+dented step of staying a state trial court’s decision in a re-
+districting dispute on matters of state law without giving 
+the State’s highest court a chance to act.  Because that or-
+der violates basic principles of jurisdiction, federalism, and 
+equity, I respectfully dissent. 
+
+2 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+I 
+ New York’s Eleventh Congressional District is located in 
+New York City and covers all of Staten Island and part of 
+southwestern Brooklyn.  Representative Nicole Malliotakis 
+currently represents the district. 
+ In October 2025, New York voters sued state election of-
+ficials in the Supreme Court of New York, the State’s trial 
+court, to challenge the district’s lines.  They claimed that 
+the district as drawn violates the New York Constitution 
+because it dilutes Black and Latino votes.  Representative 
+Malliotakis intervened to defend the current map. 
+ Following a 4-day trial in early January, the trial court 
+sided with the voters.  It first observed that this action pre-
+sented “an issue of first impression” because “New York 
+courts have yet to determine the appropriate legal standard 
+to evaluate a vote dilution claim” under the New York Con-
+stitution.  Williams v. Board of Elections, ___ N. Y. S. 3d 
+___, ___, 2026 N. Y. Slip Op. 26015, *2 (Jan. 21, 2026).  Ap-
+plying a new legal standard, the trial court held that, based 
+on the totality of the circumstances, the district as drawn 
+denied Black and Latino voters the equal “opportunity to 
+participate in the political process . . . and to elect repre-
+sentatives of their choice” guaranteed to them by Article III, 
+§4, of the New York Constitution. 
+ The trial court then enjoined New York’s current congres-
+sional map and ordered New York’s Independent Redis-
+tricting Commission to redraw the district as a “crossover” 
+district that met three criteria.1  First, under the remedial 
+—————— 
+1 A crossover district is one in which minority voters do not constitute 
+a majority in a district but are able to elect their preferred candidates 
+through “crossover” support from White voters.  The trial court’s discus-
+sion of crossover districts relied heavily on Justice Souter’s separate 
+writings, which have been especially influential in this area. See Wil-
+liams v. Board of Elections, ___ N. Y. S. 3d ___, ___, 2026 N. Y. Slip Op. 
+26015, *6 (Jan. 21, 2026); see also League of United Latin American Cit-
+izens v. Perry, 548 U. S. 399, 484–491 (2006) (Souter, J., concurring in 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+3 
+ 
+SOTOMAYOR, J., dissenting 
+district’s lines, minority voters must be able to elect their 
+preferred candidates in primary elections.  Second, minor-
+ity-favored candidates must typically win general elections.  
+Third, the district must ensure that minority voters’ sup-
+port is decisive in primary elections.  The court’s order also 
+made clear that the case would not be “resolved until the 
+successful implementation of a new Congressional Map 
+complying with [its] order.”  ___ N. Y. S. 3d, at ___, 2026 
+N. Y. Slip Op. 26015, *8.  As of today, the Commission has 
+not yet drawn a new district. 
+ Defendants appealed to both the Appellate Division (New 
+York’s intermediate court) and the Court of Appeals (New 
+York’s highest court) on January 26 and simultaneously 
+sought a stay pending appeal from both courts.  Together, 
+they argued that the trial court’s order requiring a new dis-
+trict to be drawn violates the Federal Due Process Clause, 
+Elections Clause, and Equal Protection Clause even before 
+any new district had been drawn.  On February 11, the 
+Court of Appeals transferred its appeal to the Appellate Di-
+vision on the grounds that defendants could not first appeal 
+directly to the Court of Appeals.  See 1 App. to Emergency 
+Application 20a–21a (App.); see also N.Y. Const., Art. VI, 
+§3b(2); N. Y. C. P. L. R. §5601(b)(2). 
+ The next day, without a response from the Appellate Di-
+vision, defendants applied to this Court for an emergency 
+stay pending appeal.  While the applications were pending, 
+the Appellate Division denied a stay pending appeal.  Supp. 
+App. 102–103.  Since that denial, defendants have neither 
+sought leave to appeal the denial nor asked for a stay from 
+the New York Court of Appeals, an obvious place “to turn” 
+to for relief, see ante, at 2; see also N. Y. C. P. L. R. §§5519, 
+5602. 
+—————— 
+part and dissenting in part); Bartlett v. Strickland, 556 U. S. 1, 31–35 
+(2009) (Souter, J., dissenting) (discussing crossover claims under §2 of 
+the Voting Rights Act); see also id., at 22 (plurality opinion) (discussing 
+Justice Souter’s proposed definition). 
+
+4 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+II 
+ Today, the Court takes the astonishing, unexplained step 
+of staying a state trial court’s order before the state high 
+court has had a chance to weigh in.  To do so, the majority 
+had to conclude that it has jurisdiction to act, that acting 
+now is consistent with the bedrock federalism values under-
+lying its jurisdictional limits, and that the equities favor 
+granting this relief despite the Court’s repeated admoni-
+tions to proceed cautiously when intervening in state elec-
+tions or court proceedings.  The Court goes badly wrong at 
+every turn. 
+A 
+ To begin, this Court has repeatedly held that federal 
+courts are courts of limited jurisdiction.  See, e.g., Hain Ce-
+lestial Group, Inc. v. Palmquist, 607 U. S. ___, ___ (2026) 
+(slip op., at 1); Kempe’s Lessee v. Kennedy, 5 Cranch 173, 
+185 (1809) (Marshall, C. J., for the Court).  If a lower federal 
+court lacks jurisdiction, then it cannot act.  Hain, 607 U. S., 
+at ___ (slip op., at 5). 
+ This Court’s jurisdiction is supposed to be limited too, es-
+pecially as to state-court proceedings.  Title 28 U. S. C. 
+§1257(a) allows this Court to review “[f]inal judgments or 
+decrees rendered by the highest court of a State” that im-
+plicate federal law.  As this Court has explained, §1257(a) 
+“establishes a firm final judgment rule,” requiring a state-
+court judgment to be final “ ‘in two senses: it must be subject 
+to no further review or correction in any other state tribu-
+nal; it must also be final as an effective determination of the 
+litigation and not of merely interlocutory or intermediate 
+steps therein.’ ”  Jefferson v. City of Tarrant, 522 U. S. 75, 
+81 (1997).  Put simply, the decision on review “ ‘must be the 
+final word of a final court.’ ”  Ibid. 
+ Here, there is no final decision from any state court, let 
+alone New York’s highest court, on any federal question.  
+After the New York trial court entered its interim order, 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+5 
+ 
+SOTOMAYOR, J., dissenting 
+defendants ran to this Court and sought a stay of that order 
+before either the Appellate Division or the Court of Appeals 
+had weighed in on the merits.  Needless to say, an order by 
+a state trial court is not a decision by “the highest court of 
+a State.”  §1257(a).  While these applications were pending 
+before this Court, the Appellate Division denied a stay.  The 
+Appellate Division’s order cannot satisfy §1257(a), however, 
+because that denial is reviewable by the New York Court of 
+Appeals.  See N. Y. C. P. L. R. §5602.  Yet defendants have 
+not even asked the Court of Appeals to act following the Ap-
+pellate Division’s denial. 
+ This procedural defect should be fatal.  In every other 
+case in which this Court has granted emergency relief from 
+a state-court decision, the State’s highest court either de-
+nied it first or failed to act promptly on a request for it.  See, 
+e.g., National Socialist Party of America v. Skokie, 432 U. S. 
+43, 43–44 (1977) (per curiam); CBS Inc. v. Davis, 510 U. S. 
+1315, 
+1316 
+(1994) 
+(Blackmun, 
+J., 
+in 
+chambers); 
+Volkswagenwerk A. G. v. Falzon, 461 U. S. 1303, 1303–1305 
+(1983) (O’Connor, J., in chambers); M. I. C., Ltd. v. Bedford 
+Township, 463 U. S. 1341, 1342–1343 (1983) (Brennan, J., 
+in chambers); Nebraska Press Assn. v. Stuart, 423 U. S. 
+1327, 1328–1329 (1975) (Blackmun, J., in chambers).  That 
+is true even of cases that came to this Court through New 
+York courts.  In Yeshiva Univ. v. YU Pride Alliance, 597 
+U. S. ___ (2022), for instance, this Court denied an emer-
+gency application to stay a permanent injunction entered 
+by a New York trial court because “applicants h[ad] at least 
+two further avenues for expedited or interim state court re-
+lief,” including by seeking a stay from the New York Court 
+of Appeals.  Id., at ___ (slip op., at 1); see also New Jersey 
+Transit Corp. v. Colt, 606 U. S. 1051 (2025) (staying state-
+court trial only after applicants were denied relief by the 
+Appellate Division and the Court of Appeals, see Applica-
+tion for Stay, O. T. 2024, No. 25A287, p. 2). 
+
+6 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+ Defendants contend that they cannot ask the Court of Ap-
+peals for relief.  Not so.  Although the Court of Appeals pre-
+viously transferred their appeal to the Appellate Division, 
+it did so because it lacked jurisdiction over the initial direct 
+appeal of the trial court’s order that had bypassed the Ap-
+pellate Division.  See App. 20a–21a (citing N.Y. Const., 
+Art. VI, §§3b(2), 5(b); N. Y. C. P. L. R. §5601(b)(2)).  In 
+denying a procedurally improper appeal, the Court of Ap-
+peals did not close its doors to a procedurally proper one 
+later.  JUSTICE ALITO claims that National Socialist Party 
+of America v. Skokie, 432 U. S. 43, “makes . . . clear” that 
+this transfer order is a final judgment under §1257(a).  
+Ante, at 2–3 (concurring opinion).  That is wrong.  In Skokie, 
+petitioners sought, and were denied, interim relief from the 
+state intermediate and high courts before seeking relief 
+from this Court.  432 U. S., at 43–44.  Based on those deni-
+als of relief, the Court concluded that the state high court 
+had “finally determined the merits of petitioners’ claim.”  
+Id., at 44.  No such determination has occurred here.  The 
+New York Court of Appeals did not resolve anything on the 
+merits, much less finally, when it told defendants to seek 
+relief from the Appellate Division first.2 
+ As for the Appellate Division, defendants claim that that 
+court denied them leave to appeal the denial of stay.  It did 
+no such thing: All it did was deny their request for leave to 
+appeal the trial court’s order directly to the Court of 
+—————— 
+2 Skokie is also distinguishable because it involved a prior restraint on 
+speech.  This Court has long held that a prior restraint carries “a heavy 
+presumption against its constitutional validity” and can be “tolerated” 
+only where a litigant may seek “an almost immediate judicial determi-
+nation of the validity of the restraint.”  Bantam Books, Inc. v. Sullivan, 
+372 U. S. 58, 70 (1963).  This Court has not expanded this exception be-
+yond that uniquely unconstitutional type of law.  16B C. Wright, A. Mil-
+ler, and E. Cooper, Federal Practice and Procedure §4010 (3d ed., 2025 
+Supp.) (Skokie “may signify little for general doctrine” because it “rested 
+finality on such special reasons” and “has not yet had a sweeping impact 
+on general finality doctrine”).   
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+7 
+ 
+SOTOMAYOR, J., dissenting 
+Appeals.  Supp. App. 102–103.  Besides, even if the Appel-
+late Division denied defendants leave to appeal the denial 
+of stay, defendants still may seek that same relief from the 
+Court of Appeals directly.  N. Y. C. P. L. R. §5519(c); 
+§5602(a)(2) (permitting a litigant to seek leave to appeal 
+from the Court of Appeals “upon refusal by the appellate 
+division” as to “an order of the appellate division which does 
+not finally determine [the] proceeding”). 
+ Until defendants try to obtain relief from New York’s 
+highest court, this Court cannot and should not act.  That 
+defendants have not taken that modest step should have 
+resulted in the denial of the stay they seek.3 
+B 
+ The limits on this Court’s authority to review state 
+courts’ judgments exist for a reason: They reinforce basic 
+federalism values.  This Court has long held that, con-
+sistent with States’ sovereignty, state courts can resolve 
+both federal- and state-law issues.  See Claflin v. House-
+man, 93 U. S. 130, 136–137 (1876).  This Court has also rec-
+ognized that, as early as 1793, “Congress adopted a general 
+policy under which state proceedings ‘should normally be 
+allowed to continue unimpaired by intervention of the lower 
+federal courts, with relief from error, if any, through the 
+state appellate courts and ultimately this Court.’ ”  Chick 
+Kam Choo v. Exxon Corp., 486 U. S. 140, 146 (1988); see 28 
+U. S. C. §2283.  This policy of allowing state courts to adju-
+dicate cases free of federal interference, even when those 
+cases involve federal issues, “is a necessary concomitant of 
+the Framers’ decision to authorize, and Congress’ decision 
+—————— 
+3 JUSTICE ALITO faults me for “duck[ing]” the merits.  Ante, at 4.  Juris-
+dictional rules, however, do not depend on the underlying merits.  Lance 
+v. Coffman, 549 U. S. 437, 439 (2007) (per curiam) (Federal courts “must 
+determine that they have jurisdiction before proceeding to the merits”); 
+but see ante, at 1–2 (discussing merits before jurisdiction). 
+
+8 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+to implement, a dual system of federal and state courts.”  
+Chick Kam Choo, 486 U. S., at 146. 
+ To persuade this Court to violate these principles and in-
+terfere with the New York courts, defendants assert that 
+this Court must act now because doing so is “necessary or 
+appropriate in aid of [this Court’s] jurisdictio[n]” under the 
+All Writs Act.  §1651(a).  That assertion is perplexing.  This 
+Court lacks jurisdiction over the trial court’s interlocutory 
+order, see supra, at 4–7, and “[w]e have long held [that t]he 
+authority to issue a writ under the All Writs Act is not a 
+font of jurisdiction,” United States v. Denedo, 556 U. S. 904, 
+914 (2009). 
+ Even assuming that that Act permits this Court to go be-
+yond its jurisdictional limits, it requires that the Court’s ac-
+tions today aid its ability to hear and decide a federal ques-
+tion later.4  See Atlantic Coast Line R. Co. v. Locomotive 
+Engineers, 398 U. S. 281, 295 (1970).  The majority’s unrea-
+soned order, however, gives no reasons at all for why its in-
+tervention meets that requirement.  Defendants, for their 
+part, argue that this Court’s intervention is needed because 
+the primary election is right around the corner.  If this 
+Court does not act now, they say, then it will not be able to 
+act before the election. 
+ That argument starts from a flawed premise.  It assumes, 
+for no apparent reason, that this Court will need to act at 
+all, never mind by any deadline.  If the trial court’s federal 
+constitutional errors are as obvious as defendants claim 
+they are, then the Court of Appeals could very well give 
+them the relief they seek.  The Court of Appeals also could 
+decide that the trial court decided a novel question of state 
+constitutional law incorrectly or that the novelty of the 
+—————— 
+4 Title 28 U. S. C. §2101(f ) also does not authorize the relief defendants 
+seek.  That statute permits this Court to stay a “final judgment or decree 
+of any court [that] is subject to review by the Supreme Court on writ of 
+certiorari.”  For all the reasons explained in the text, there is no final 
+judgment reviewable by this Court. 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+9 
+ 
+SOTOMAYOR, J., dissenting 
+state-law question warrants a stay pending appeal.  It also 
+could decide that the trial court erred on any one of several 
+independent state-law grounds that defendants have raised 
+in the courts below.  See Brief for Respondent Kathy Hochul 
+et al. 16–20.  Yet neither defendants nor the majority afford 
+the Court of Appeals a chance to do any of those things. 
+ Next, defendants’ supposed time constraints are illusory.  
+The general election is eight months away and the primary 
+is about four months away.  That is more than enough time 
+for defendants to, at the very least, seek a stay from the 
+Court of Appeals.  It is also enough time for the New York 
+courts to decide this case finally on the merits.  The New 
+York courts are surely aware that their State is without a 
+congressional districting plan in the middle of an election 
+year and that they must act swiftly in the weeks ahead.  
+The New York Constitution directs state courts to do just 
+that: They must prioritize apportionment disputes above all 
+other matters.  See Art. VI, §5.  New York courts take that 
+command seriously.  In 2022, for example, the Appellate Di-
+vision decided an appeal in a partisan gerrymandering 
+challenge in just 21 days.  As for the Court of Appeals, it 
+needed only 6.5 
+ Even if 6 days is still somehow not fast enough for the 
+majority, New York courts can move the primary election 
+date.  They did just that in 2022 to leave enough time to 
+resolve state-court litigation, ensure that state law was be-
+ing followed, and give the State enough time to implement 
+new maps before the election.  See United States v. New 
+York, 2022 WL 1473259, *1 (NDNY, May 10, 2022); see also 
+Harkenrider v. Hochul, 38 N. Y. 3d 494, 522, 197 N. E. 3d 
+437, 454–455 (2022). 
+—————— 
+5 The trial court issued its decision on March 31, 2022.  Harkenrider v. 
+Hochul, 173 N. Y. S. 3d 109.  The Appellate Division decided the appeal 
+on April 21, 2022.  Harkenrider v. Hochul, 204 App. Div. 3d 1366, 167 
+N. Y. S. 3d 659.  The Court of Appeals issued its decision on April 27, 
+2022.  Harkenrider v. Hochul, 38 N. Y. 3d 494, 197 N. E. 3d 437. 
+
+10 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+ In short, there is every reason to think that the New York 
+courts will fully, swiftly, and prudently resolve this case be-
+fore the primary election.  Basic federalism principles, 
+which have bound federal courts since the founding, require 
+giving the New York courts a fair opportunity to do so.  The 
+majority, however, denies them that chance. 
+C 
+ The majority’s decision to grant relief here is also irrec-
+oncilable with its repeated admonishing of lower federal 
+courts not to interfere with state election laws on the “eve 
+of an election.”  Republican National Committee v. Demo-
+cratic National Committee, 589 U. S. 423, 424 (2020) (per 
+curiam).  Known as the “Purcell principle,” this doctrine 
+generally holds that, because late-breaking changes to elec-
+tion procedures can cause chaos, federal courts should hes-
+itate before exercising their equitable discretion to alter 
+state election laws close to an election.  Merrill v. Milligan, 
+595 U. S. ___, ___ (2022) (KAVANAUGH, J., concurring in 
+grant of application for stays) (slip op., at 4); see also Purcell 
+v. Gonzalez, 549 U. S. 1 (2006) (per curiam).  Importantly, 
+this Court has never applied Purcell to prevent state courts 
+from adjudicating state-law election disputes, even when 
+state-court action might cause “confusion,” ante, at 4.  “It is 
+one thing for a State on its own to toy with its election laws 
+close to a State’s elections.  But it is quite another thing for 
+a federal court to swoop in and re-do a State’s election laws 
+in the period close to an election.”  See Milligan, 595 U. S., 
+at ___ (slip op., at 4) (opinion of KAVANAUGH, J.). 
+ The Court has deployed Purcell at least three times in the 
+last five years to stay federal-court injunctions of state re-
+districting plans months ahead of an upcoming election.  
+Just this past December, the Court relied on Purcell to stay 
+a Federal District Court’s injunction against Texas’s con-
+gressional districting plan ahead of the primary election in 
+March.  Abbott v. League of United Latin American Citizens, 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+11 
+ 
+SOTOMAYOR, J., dissenting 
+607 U. S. ___, ___ (2025) (LULAC) (slip op., at 2); see id., at 
+___ (KAGAN, J., dissenting from grant of application for 
+stay) (slip op., at 15).  That District Court, this Court 
+chided, “improperly inserted itself into an active primary 
+campaign, causing much confusion and upsetting the deli-
+cate federal-state balance in elections.”  Id., at ___ (majority 
+opinion) (slip op., at 2).  Similarly, this Court stayed a Fed-
+eral District Court’s injunction of Alabama’s congressional 
+districts issued four months ahead of the next primary elec-
+tion, even though this Court later held that map unlawful.  
+Milligan, 595 U. S., at ___ (slip op., at 1); see id., at ___ 
+(KAGAN, J., dissenting from grant of application for stays) 
+(slip op., at 10); Allen v. Milligan, 599 U. S. 1, 23 (2023).  It 
+even stayed a federal injunction of Louisiana’s congres-
+sional districts more than six months before the next elec-
+tion.  Robinson v. Callais, 601 U. S. ___ (2024) (slip op., at 
+1); see id., at ___ (JACKSON, J., dissenting from grant of ap-
+plications for stay) (slip op., at 2). 
+ I disagreed with the majority’s position in those cases 
+that the “eve” of an election is four (never mind six) months 
+long.  Apparently, the majority now thinks so too, but only 
+for this case.  Four months before an election may be too 
+late for a lower federal court to act, but it is not too late for 
+this Court to upend a State’s administration of its own elec-
+tion laws.  What was “imprope[r]” just this past December, 
+LULAC, 607 U. S., at ___ (slip op., at 2), is now “necessary 
+or appropriate,” 28 U. S. C. §1651(a).  Both state courts and 
+lower federal courts deserve more than the majority’s unex-
+plained about-face.6 
+ Some Members of this Court have expressed the view 
+that Purcell does not bar federal-court action when “the un-
+derlying merits are entirely clearcut in favor of the 
+—————— 
+6 JUSTICE ALITO suggests that this Court must act today because Pur-
+cell might prevent it from acting later.  Ante, at 4.  In so doing, he turns 
+what is supposed to be a “principle of restraint,” ibid., into an excuse for 
+intemperance. 
+
+12 
+MALLIOTAKIS v. WILLIAMS 
+ 
+ 
+SOTOMAYOR, J., dissenting 
+plaintiff.”  Milligan, 595 U. S., at ___ (opinion of 
+KAVANAUGH, J.) (slip op., at 5).  Whatever clarity the ma-
+jority may have found in this case is hard to discern.  The 
+trial court’s order, to be sure, calls for creating a crossover 
+district, and Members of this Court have previously noted 
+that intentionally creating such a district raises “serious 
+constitutional questions.”  Bartlett v. Strickland, 556 U. S. 
+1, 18 (2009) (plurality opinion) (addressing crossover dis-
+tricts).  Even so, no remedial district has been drawn yet, 
+and it is not remotely clear that one would have been drawn 
+after the New York appellate courts reviewed the trial 
+court’s decision.  The majority, however, seems to have no 
+doubts that whatever district may or may not be drawn nec-
+essarily will violate the Federal Constitution, regardless of 
+how it might be configured, regardless of how the New York 
+Independent Redistricting Commission might go about 
+drawing it, and regardless of what state law might actually 
+require.  All this, even though this Court has purposefully 
+left open the constitutionality of crossover districts.  See 
+Bartlett, 556 U. S., at 21 (plurality opinion); see also Be-
+thune-Hill v. Virginia State Bd. of Elections, 580 U. S. 178, 
+192 (2017) (holding that “the use of an express racial target” 
+in redistricting must be evaluated in context based on the 
+district as a whole).  The Court should not so prematurely 
+and dismissively decide so serious a question.7 
+—————— 
+7 Far from “baseless,” ante, at 4, my opinion is based entirely on what 
+JUSTICE ALITO and the majority have done in the recent past.  JUSTICE 
+ALITO frets that if the Court does not act today, then New York may be 
+able to hold an election using an illegal map.  Ibid.  Yet he himself relied 
+on Purcell just four years ago to permit Alabama to hold an election using 
+a map that this Court later held was unlawful under a “faithfu[l] ap-
+pli[cation of] our precedents” and “the law as it exists.”  Allen v. Milligan, 
+599 U. S. 1, 23 (2023); Merrill v. Milligan, 595 U. S. ___, ___ (2022) 
+(KAVANAUGH, J., joined by ALITO, J., concurring) (slip op., at 2).  In any 
+event, JUSTICE ALITO’s fears are unwarranted.  Again, the general elec-
+tion is eight months away.  During that time, defendants could seek a 
+stay of the trial court’s order before the Court of Appeals, or reversal on 
+
+ 
+Cite as: 607 U. S. ____ (2026) 
+13 
+ 
+SOTOMAYOR, J., dissenting 
+*  *  * 
+ If this Court’s grasping reach extends even to a nonfinal 
+decision of a state trial court, then every decision from any 
+court is now fair game.  By granting these applications, the 
+Court thrusts itself into the middle of every election-law 
+dispute around the country, even as many States redraw 
+their congressional maps ahead of the 2026 election.  It also 
+invites parties searching for a sympathetic ear to file emer-
+gency applications directly with this Court, without even 
+bothering to ask the state courts first.  There is much rea-
+son to question whether the majority will exercise its new-
+found authority wisely, but there is no reason to question 
+this: If you build it, they will come. 
+ I respectfully dissent. 
+—————— 
+the merits before both the Appellate Division and the Court of Appeals.  
+If neither of those courts grants them relief, then a new map will have to 
+be devised and implemented to replace the enjoined one so that a general 
+election can occur in November.  Thus, there will be some juncture in the 
+months ahead at which defendants could return to this Court with an 
+order that actually falls within its jurisdiction. 
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@@ -0,0 +1,2558 @@
+PRELIMINARY PRINT 
+Volume 597 U. S. Part 1 
+Pages 215–423 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 24, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2021 
+215 
+Syllabus 
+DOBBS, STATE HEALTH OFFICER OF THE MISSIS­
+SIPPI DEPARTMENT OF HEALTH, et al. v. JACKSON 
+WOMEN'S HEALTH ORGANIZATION et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 19–1392. Argued December 1, 2021—Decided June 24, 2022 
+Mississippi's Gestational Age Act provides that “[e]xcept in a medical 
+emergency or in the case of a severe fetal abnormality, a person shall 
+not intentionally or knowingly perform . . . or induce an abortion of an 
+unborn human being if the probable gestational age of the unborn 
+human being has been determined to be greater than ffteen (15) weeks.” 
+Miss. Code Ann. §41–41–191(4)(b). Respondents—Jackson Women's 
+Health Organization, an abortion clinic, and one of its doctors—challenged 
+the Act in Federal District Court, alleging that it violated this Court's 
+precedents establishing a constitutional right to abortion, in particular 
+Roe v. Wade, 410 U. S. 113, and Planned Parenthood of Southeastern Pa. 
+v. Casey, 505 U. S. 833. The District Court granted summary judgment 
+in favor of respondents and permanently enjoined enforcement of the 
+Act, reasoning that Mississippi's 15-week restriction on abortion violates 
+this Court's cases forbidding States to ban abortion pre-viability. The 
+Fifth Circuit affrmed. Before this Court, petitioners defend the Act 
+on the grounds that Roe and Casey were wrongly decided and that the 
+Act is constitutional because it satisfes rational-basis review. 
+Held: The Constitution does not confer a right to abortion; Roe and Casey 
+are overruled; and the authority to regulate abortion is returned to the 
+people and their elected representatives. Pp. 234–302. 
+(a) The critical question is whether the Constitution, properly under­
+stood, confers a right to obtain an abortion. Casey's controlling opinion 
+skipped over that question and reaffrmed Roe solely on the basis of 
+stare decisis. A proper application of stare decisis, however, requires 
+an assessment of the strength of the grounds on which Roe was based. 
+The Court therefore turns to the question that the Casey plurality did 
+not consider. Pp. 234–257. 
+(1) First, the Court reviews the standard that the Court's cases 
+have used to determine whether the Fourteenth Amendment's reference 
+to “liberty” protects a particular right. The Constitution makes no ex­
+press reference to a right to obtain an abortion, but several constitu­
+tional provisions have been offered as potential homes for an implicit 
+constitutional right. Roe held that the abortion right is part of a right 
+
+Page Proof Pending Publication
+216 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Syllabus 
+to privacy that springs from the First, Fourth, Fifth, Ninth, and Four­
+teenth Amendments. See 410 U. S., at 152–153. The Casey Court 
+grounded its decision solely on the theory that the right to obtain an 
+abortion is part of the “liberty” protected by the Fourteenth Amend­
+ment's Due Process Clause. Others have suggested that support can 
+be found in the Fourteenth Amendment's Equal Protection Clause, but 
+that theory is squarely foreclosed by the Court's precedents, which es­
+tablish that a State's regulation of abortion is not a sex-based classifca­
+tion and is thus not subject to the heightened scrutiny that applies to 
+such classifcations. See Geduldig v. Aiello, 417 U. S. 484, 496, n. 20; 
+Bray v. Alexandria Women's Health Clinic, 506 U. S. 263, 273– 
+274. Rather, regulations and prohibitions of abortion are governed by 
+the same standard of review as other health and safety measures. 
+Pp. 235–237. 
+(2) Next, the Court examines whether the right to obtain an abor­
+tion is rooted in the Nation's history and tradition and whether it is an 
+essential component of “ordered liberty.” The Court fnds that the 
+right to abortion is not deeply rooted in the Nation's history and tradi­
+tion. The underlying theory on which Casey rested—that the Four­
+teenth Amendment's Due Process Clause provides substantive, as well 
+as procedural, protection for “liberty”—has long been controversial. 
+The Court's decisions have held that the Due Process Clause protects 
+two categories of substantive rights—those rights guaranteed by the 
+frst eight Amendments to the Constitution and those rights deemed 
+fundamental that are not mentioned anywhere in the Constitution. In 
+deciding whether a right falls into either of these categories, the ques­
+tion is whether the right is “deeply rooted in [our] history and tradition” 
+and whether it is essential to this Nation's “scheme of ordered liberty.” 
+Timbs v. Indiana, 586 U. S. –––, ––– (internal quotation marks omitted). 
+The term “liberty” alone provides little guidance. Thus, historical in­
+quiries are essential whenever the Court is asked to recognize a new 
+component of the “liberty” interest protected by the Due Process 
+Clause. In interpreting what is meant by “liberty,” the Court must 
+guard against the natural human tendency to confuse what the Four­
+teenth Amendment protects with the Court's own ardent views about 
+the liberty that Americans should enjoy. For this reason, the Court 
+has been “reluctant” to recognize rights that are not mentioned in the 
+Constitution. Collins v. Harker Heights, 503 U. S. 115, 125. 
+Guided by the history and tradition that map the essential compo­
+nents of the Nation's concept of ordered liberty, the Court fnds the 
+Fourteenth Amendment clearly does not protect the right to an abor­
+tion. Until the latter part of the 20th century, there was no support in 
+American law for a constitutional right to obtain an abortion. No state 
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+217 
+Syllabus 
+constitutional provision had recognized such a right. Until a few years 
+before Roe, no federal or state court had recognized such a right. Nor 
+had any scholarly treatise. Indeed, abortion had long been a crime in 
+every single State. At common law, abortion was criminal in at least 
+some stages of pregnancy and was regarded as unlawful and could have 
+very serious consequences at all stages. American law followed the 
+common law until a wave of statutory restrictions in the 1800s expanded 
+criminal liability for abortions. By the time the Fourteenth Amend­
+ment was adopted, three-quarters of the States had made abortion a 
+crime at any stage of pregnancy. This consensus endured until the day 
+Roe was decided. Roe either ignored or misstated this history, and 
+Casey declined to reconsider Roe's faulty historical analysis. 
+Respondents' argument that this history does not matter fies in the 
+face of the standard the Court has applied in determining whether an 
+asserted right that is nowhere mentioned in the Constitution is never­
+theless protected by the Fourteenth Amendment. The Solicitor Gen­
+eral repeats Roe's claim that it is “doubtful . . . abortion was ever frmly 
+established as a common-law crime even with respect to the destruc­
+tion of a quick fetus,” 410 U. S., at 136, but the great common-law au­
+thorities—Bracton, Coke, Hale, and Blackstone—all wrote that a post-
+quickening abortion was a crime. Moreover, many authorities asserted 
+that even a pre-quickening abortion was “unlawful” and that, as a result, 
+an abortionist was guilty of murder if the woman died from the attempt. 
+The Solicitor General suggests that history supports an abortion right 
+because of the common law's failure to criminalize abortion before quick­
+ening, but the insistence on quickening was not universal, see Mills v. 
+Commonwealth, 13 Pa. 631, 633; State v. Slagle, 83 N. C. 630, 632, and 
+regardless, the fact that many States in the late 18th and early 19th 
+century did not criminalize pre-quickening abortions does not mean that 
+anyone thought the States lacked the authority to do so. 
+Instead of seriously pressing the argument that the abortion right 
+itself has deep roots, supporters of Roe and Casey contend that the 
+abortion right is an integral part of a broader entrenched right. Roe 
+termed this a right to privacy, 410 U. S., at 154, and Casey described it 
+as the freedom to make “intimate and personal choices” that are “central 
+to personal dignity and autonomy,” 505 U. S., at 851. Ordered liberty 
+sets limits and defnes the boundary between competing interests. Roe 
+and Casey each struck a particular balance between the interests of a 
+woman who wants an abortion and the interests of what they termed 
+“potential life.” Roe, 410 U. S., at 150; Casey, 505 U. S., at 852. But 
+the people of the various States may evaluate those interests differently. 
+The Nation's historical understanding of ordered liberty does not pre­
+
+Page Proof Pending Publication
+218 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Syllabus 
+vent the people's elected representatives from deciding how abortion 
+should be regulated. Pp. 237–255. 
+(3) Finally, the Court considers whether a right to obtain an abor­
+tion is part of a broader entrenched right that is supported by other 
+precedents. The Court concludes the right to obtain an abortion cannot 
+be justifed as a component of such a right. Attempts to justify abor­
+tion through appeals to a broader right to autonomy and to defne one's 
+“concept of existence” prove too much. Casey, 505 U. S., at 851. Those 
+criteria, at a high level of generality, could license fundamental rights 
+to illicit drug use, prostitution, and the like. What sharply distin­
+guishes the abortion right from the rights recognized in the cases on 
+which Roe and Casey rely is something that both those decisions ac­
+knowledged: Abortion is different because it destroys what Roe termed 
+“potential life” and what the law challenged in this case calls an “unborn 
+human being.” None of the other decisions cited by Roe and Casey 
+involved the critical moral question posed by abortion. Accordingly, 
+those cases do not support the right to obtain an abortion, and the 
+Court's conclusion that the Constitution does not confer such a right 
+does not undermine them in any way. Pp. 255–257. 
+(b) The doctrine of stare decisis does not counsel continued accept­
+ance of Roe and Casey. Stare decisis plays an important role and pro­
+tects the interests of those who have taken action in reliance on a past 
+decision. It “reduces incentives for challenging settled precedents, sav­
+ing parties and courts the expense of endless relitigation.” Kimble v. 
+Marvel Entertainment, LLC, 576 U. S. 446, 455. It “contributes to the 
+actual and perceived integrity of the judicial process.” Payne v. Ten­
+nessee, 501 U. S. 808, 827. And it restrains judicial hubris by respecting 
+the judgment of those who grappled with important questions in the 
+past. But stare decisis is not an inexorable command, Pearson v. Calla­
+han, 555 U. S. 223, 233, and “is at its weakest when [the Court] inter-
+pret[s] the Constitution,” Agostini v. Felton, 521 U. S. 203, 235. Some 
+of the Court's most important constitutional decisions have overruled 
+prior precedents. See, e. g., Brown v. Board of Education, 347 U. S. 
+483, 491 (overruling the infamous decision in Plessy v. Ferguson, 163 
+U. S. 537, and its progeny). 
+The Court's cases have identifed factors that should be considered 
+in deciding when a precedent should be overruled. Janus v. State, 
+County, and Municipal Employees, 585 U. S. –––, ––– – –––. Five fac­
+tors discussed below weigh strongly in favor of overruling Roe and 
+Casey. Pp. 263–290. 
+(1) The nature of the Court's error. Like the infamous decision in 
+Plessy v. Ferguson, Roe was also egregiously wrong and on a collision 
+course with the Constitution from the day it was decided. Casey per­
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+219 
+Syllabus 
+petuated its errors, calling both sides of the national controversy to 
+resolve their debate, but in doing so, Casey necessarily declared a win­
+ning side. Those on the losing side—those who sought to advance the 
+State's interest in fetal life—could no longer seek to persuade their 
+elected representatives to adopt policies consistent with their views. 
+The Court short-circuited the democratic process by closing it to the 
+large number of Americans who disagreed with Roe. Pp. 268–269. 
+(2) The quality of the reasoning. Without any grounding in the 
+constitutional text, history, or precedent, Roe imposed on the entire 
+country a detailed set of rules for pregnancy divided into trimesters 
+much like those that one might expect to fnd in a statute or regulation. 
+See 410 U. S., at 163–164. Roe's failure even to note the overwhelming 
+consensus of state laws in effect in 1868 is striking, and what it said 
+about the common law was simply wrong. Then, after surveying his­
+tory, the opinion spent many paragraphs conducting the sort of fact-
+fnding that might be undertaken by a legislative committee, and did 
+not explain why the sources on which it relied shed light on the meaning 
+of the Constitution. As to precedent, citing a broad array of cases, the 
+Court found support for a constitutional “right of personal privacy.” 
+Id., at 152. But Roe confated the right to shield information from dis­
+closure and the right to make and implement important personal deci­
+sions without governmental interference. See Whalen v. Roe, 429 U. S. 
+589, 599–600. None of these decisions involved what is distinctive 
+about abortion: its effect on what Roe termed “potential life.” When 
+the Court summarized the basis for the scheme it imposed on the coun­
+try, it asserted that its rules were “consistent with,” among other 
+things, “the relative weights of the respective interests involved” and 
+“the demands of the profound problems of the present day.” Roe, 410 
+U. S., at 165. These are precisely the sort of considerations that legisla­
+tive bodies often take into account when they draw lines that accommo­
+date competing interests. The scheme Roe produced looked like legis­
+lation, and the Court provided the sort of explanation that might be 
+expected from a legislative body. An even more glaring defciency was 
+Roe's failure to justify the critical distinction it drew between pre- and 
+post-viability abortions. See id., at 163. The arbitrary viability line, 
+which Casey termed Roe's central rule, has not found much support 
+among philosophers and ethicists who have attempted to justify a right 
+to abortion. The most obvious problem with any such argument is that 
+viability has changed over time and is heavily dependent on factors— 
+such as medical advances and the availability of quality medical care— 
+that have nothing to do with the characteristics of a fetus. 
+When Casey revisited Roe almost 20 years later, it reaffrmed Roe's 
+central holding, but pointedly refrained from endorsing most of its rea­
+
+Page Proof Pending Publication
+220 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Syllabus 
+soning. The Court abandoned any reliance on a privacy right and in­
+stead grounded the abortion right entirely on the Fourteenth Amend­
+ment's Due Process Clause. 505 U. S., at 846. The controlling opinion 
+criticized and rejected Roe's trimester scheme, 505 U. S., at 872, and 
+substituted a new and obscure “undue burden” test. Casey, in short, 
+either refused to reaffrm or rejected important aspects of Roe's analy­
+sis, failed to remedy glaring defciencies in Roe's reasoning, endorsed 
+what it termed Roe's central holding while suggesting that a majority 
+might not have thought it was correct, provided no new support for the 
+abortion right other than Roe's status as precedent, and imposed a new 
+test with no frm grounding in constitutional text, history, or precedent. 
+Pp. 269–280. 
+(3) Workability. Deciding whether a precedent should be over­
+ruled depends in part on whether the rule it imposes is workable—that 
+is, whether it can be understood and applied in a consistent and predict­
+able manner. Casey's “undue burden” test has scored poorly on the 
+workability scale. The Casey plurality tried to put meaning into the 
+“undue burden” test by setting out three subsidiary rules, but these 
+rules created their own problems. And the diffculty of applying 
+Casey's new rules surfaced in that very case. Compare 505 U. S., at 
+881–887, with id., at 920–922 (Stevens, J., concurring in part and dissent­
+ing in part). The experience of the Courts of Appeals provides further 
+evidence that Casey's “line between” permissible and unconstitutional 
+restrictions “has proved to be impossible to draw with precision.” 
+Janus, 585 U. S., at –––. Casey has generated a long list of Circuit 
+conficts. Continued adherence to Casey's unworkable “undue burden” 
+test would undermine, not advance, the “evenhanded, predictable, and 
+consistent development of legal principles.” Payne, 501 U. S., at 827. 
+Pp. 280–286. 
+(4) Effect on other areas of law. Roe and Casey have led to the 
+distortion of many important but unrelated legal doctrines, and that 
+effect provides further support for overruling those decisions. See 
+Ramos v. Louisiana, 590 U. S. –––, ––– (Kavanaugh, J., concurring in 
+part). Pp. 286–287. 
+(5) Reliance interests. Overruling Roe and Casey will not upend 
+concrete reliance interests like those that develop in “cases involving 
+property and contract rights.” Payne, 501 U. S., at 828. In Casey, the 
+controlling opinion conceded that traditional reliance interests were not 
+implicated because getting an abortion is generally “unplanned activity,” 
+and “reproductive planning could take virtually immediate account of 
+any sudden restoration of state authority to ban abortions.” 505 U. S., 
+at 856. Instead, the opinion perceived a more intangible form of reli­
+ance, namely, that “people [had] organized intimate relationships and 
+
+Cite as: 597 U. S. 215 (2022) 
+221 
+Syllabus 
+made choices that defne their views of themselves and their places in 
+society . . . in reliance on the availability of abortion in the event that 
+contraception should fail” and that “[t]he ability of women to participate 
+equally in the economic and social life of the Nation has been facilitated 
+by their ability to control their reproductive lives.” Ibid. The con­
+tending sides in this case make impassioned and conficting arguments 
+about the effects of the abortion right on the lives of women as well as 
+the status of the fetus. The Casey plurality's speculative attempt to 
+weigh the relative importance of the interests of the fetus and the 
+mother represent a departure from the “original constitutional proposi­
+tion” that “courts do not substitute their social and economic beliefs for 
+the judgment of legislative bodies.” Ferguson v. Skrupa, 372 U. S. 726, 
+729–730. 
+The Solicitor General suggests that overruling Roe and Casey would 
+threaten the protection of other rights under the Due Process Clause. 
+The Court emphasizes that this decision concerns the constitutional 
+right to abortion and no other right. Nothing in this opinion should be 
+understood to cast doubt on precedents that do not concern abortion. 
+Pp. 287–290. 
+(c) Casey identifed another concern, namely, the danger that the 
+public will perceive a decision overruling a controversial “watershed” 
+decision, such as Roe, as infuenced by political considerations or public 
+opinion. 505 U. S., at 866–867. But the Court cannot allow its deci­
+sions to be affected by such extraneous concerns. A precedent of this 
+Court is subject to the usual principles of stare decisis under which 
+adherence to precedent is the norm but not an inexorable command. If 
+the rule were otherwise, erroneous decisions like Plessy would still be 
+the law. The Court's job is to interpret the law, apply longstanding 
+principles of stare decisis, and decide this case accordingly. Pp. 290–292. 
+(d) Under the Court's precedents, rational-basis review is the ap­
+propriate standard to apply when state abortion regulations undergo 
+constitutional challenge. Given that procuring an abortion is not a fun­
+damental constitutional right, it follows that the States may regulate 
+abortion for legitimate reasons, and when such regulations are chal­
+lenged under the Constitution, courts cannot “substitute their social and 
+economic beliefs for the judgment of legislative bodies.” Ferguson, 372 
+U. S., at 729–730. That applies even when the laws at issue concern 
+matters of great social signifcance and moral substance. A law regu­
+lating abortion, like other health and welfare laws, is entitled to a 
+“strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319. It 
+must be sustained if there is a rational basis on which the legislature 
+could have thought that it would serve legitimate state interests. Id., 
+at 320. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+222 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Syllabus 
+Mississippi's Gestational Age Act is supported by the Mississippi Leg­
+islature's specifc fndings, which include the State's asserted interest in 
+“protecting the life of the unborn.” § 2(b)(i)(7) (internal quotation 
+marks omitted). These legitimate interests provide a rational basis for 
+the Gestational Age Act, and it follows that respondents' constitutional 
+challenge must fail. Pp. 300–301. 
+(e) Abortion presents a profound moral question. The Constitution 
+does not prohibit the citizens of each State from regulating or prohibit­
+ing abortion. Roe and Casey arrogated that authority. The Court 
+overrules those decisions and returns that authority to the people and 
+their elected representatives. P. 302. 
+945 F. 3d 265, reversed and remanded. 
+Alito, J., delivered the opinion of the Court, in which Thomas, Gor­
+such, Kavanaugh, and Barrett, JJ., joined. Thomas, J., post, p. 330 
+and Kavanaugh, J., post, p. 336, fled concurring opinions. Roberts, 
+C. J., fled an opinion concurring in the judgment, post, p. 347. Breyer, 
+Sotomayor, and Kagan, JJ., fled a dissenting opinion, post, p. 359. 
+Scott G. Stewart, Solicitor General of Mississippi, argued 
+the cause for petitioners. With him on the briefs were Lynn 
+Fitch, Attorney General, Whitney H. Lipscomb, Deputy At­
+torney General, Justin L. Matheny, Deputy Solicitor Gen­
+eral, and Wilson Minor, Special Assistant Attorney General. 
+Julie Rikelman argued the cause for respondents. With 
+her on the brief were Hillary Schneller, Jenny Ma, Shayna 
+Medley, Robert B. McDuff, Jeffrey L. Fisher, Anton Metlit­
+sky, Claudia Hammerman, and Alexia D. Korberg. 
+Solicitor General Prelogar argued the cause for the 
+United States as amicus curiae urging affrmance. With 
+her on the brief were Acting Solicitor General Fletcher, 
+Acting Assistant Attorney General Boynton, Erica L. Ross, 
+Michael S. Raab, and Dana Kaersvang.* 
+*Briefs of amici curiae urging reversal were fled for the State of Texas 
+et al. by Ken Paxton, Attorney General of Texas, Judd E. Stone II, Solici­
+tor General, Brent Webster, First Assistant Attorney General, and Kyle 
+D. Highful and Beth Klusmann, Assistant Solicitors General, and by the 
+Attorneys General for their respective States as follows: Steve Marshall 
+of Alabama, Treg R. Taylor of Alaska, Mark Brnovich of Arizona, Leslie 
+Rutledge of Arkansas, Ashley Moody of Florida, Christopher M. Carr of 
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+223 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+Abortion presents a profound moral issue on which Ameri­
+cans hold sharply conficting views. Some believe fervently 
+that a human person comes into being at conception and that 
+Georgia, Lawrence G. Wasden of Idaho, Theodore E. Rokita of Indiana, 
+Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry of 
+Louisiana, Eric Schmitt of Missouri, Austin Knudsen of Montana, Doug­
+las J. Peterson of Nebraska, Wayne Stenehjem of North Dakota, Dave 
+Yost of Ohio, John M. O'Connor of Oklahoma, Alan Wilson of South Caro­
+lina, Jason R. Ravnsborg of South Dakota, Herbert H. Slatery III of Ten­
+nessee, Sean D. Reyes of Utah, Patrick Morrisey of West Virginia, and 
+Bridget Hill of Wyoming; for African-American, Hispanic, Roman Catholic 
+and Protestant Religious and Civil Rights Organizations et al. by Mathew 
+D. Staver, Anita L. Staver, Horatio G. Mihet, and Roger K. Gannam; for 
+the American Association of Pro-Life Obstetricians and Gynecologists by 
+Andrew C. Nichols and Sean P. Gates; for the American Center for Law 
+and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, 
+Walter M. Weber, Jordan A. Sekulow, Laura Hernandez, Matthew R. 
+Clark, Nikolas T. Nikas, and Dorinda C. Bordlee; for the American Col­
+lege of Pediatricians et al. by Christopher E. Mills; for the American Cor­
+nerstone Institute et al. by Edward M. Wenger and David W. Childs; for 
+The Becket Fund for Religious Liberty by Mark L. Rienzi, Eric C. Rass­
+bach, Lori H. Windham, Adèle Auxier Keim, and William J. Haun; for 
+the Center for Religious Expression by Nathan W. Kellum; for Cleveland 
+Lawyers for Life by David F. Forte; for Concerned Women for America 
+by Mario Diaz; for the Conservative Legal Defense and Education Fund 
+by Patrick M. McSweeney, Robert J. Cynkar, William J. Olson, Jeremiah 
+L. Morgan, Robert J. Olson, and J. Mark Brewer; for Democrats for Life 
+of America et al. by Julian McPhillips; for the Elliot Institute by Jay 
+Alan Sekulow, Stuart J. Roth, Colby M. May, Walter M. Weber, Laura 
+Hernandez, Cecilia Noland-Heil, Francis J. Manion, and Geoffrey R. 
+Surtees; for the Ethics and Public Policy Center by Charles J. Cooper, 
+Peter A. Patterson, John D. Ohlendorf, and Richard W. Garnett; for the 
+European Centre for Law and Justice by Jordan A. Sekulow, Cecilia 
+Noland-Heil, Andrew J. Ekonomou, and Walter M. Weber; for the Family 
+Research Council by Thomas R. McCarthy and Travis Weber; for the Jew­
+ish Pro-Life Foundation et al. by Allan E. Parker, Jr., and R. Clayton 
+Trotter; for Judicial Watch, Inc., by Meredith L. Di Liberto and James F. 
+Peterson; for the National Catholic Bioethics Center et al. by William 
+Wagner and Erin Elizabeth Mersino; for the National Right to Life Com­
+mittee et al. by James Bopp, Jr., and Richard E. Coleson; for the Prolife 
+
+Page Proof Pending Publication
+224 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+abortion ends an innocent life. Others feel just as strongly 
+that any regulation of abortion invades a woman's right to 
+control her own body and prevents women from achieving 
+full equality. Still others in a third group think that abor-
+Center at the University of St. Thomas by Teresa S. Collett and Paul 
+Benjamin Linton; for Reason for Life by Samuel D. Green; for Scholars 
+of Jurisprudence et al. by Robert P. George, pro se; for Texas Right to Life 
+by Jonathan F. Mitchell and Adam K. Mortara; for the Thomas More 
+Society by Thomas Brejcha and Paul Benjamin Linton; for the Trinity 
+Legal Center by Linda Boston Schlueter; for the World Faith Foundation 
+et al. by James L. Hirsen, Deborah J. Dewart, and Tami Fitzgerald; for 
+Mary Kay Bacallao by George L. Lyon, Jr.; for Rep. Steve Carra et al. by 
+Matthew E. Gronda and Philip L. Ellison; for Stephen G. Gilles by Ste­
+phen G. Gilles, pro se; for Mary Ann Glendon et al. by Heather Gebelin 
+Hacker; for Sen. Josh Hawley et al. by Sen. Hawley, pro se, and Michael 
+K. Velchik; for Gov. Henry McMaster et al. by Thomas A. Limehouse, Jr., 
+William Grayson Lambert, William G. Parker, Jr., David B. Dove, Brady 
+Hall, Anita Milanovich, and Jeff Oldham; for Melinda Thybault et al. by 
+Allan E. Parker, Jr., R. Clayton Trotter, and Mary J. Browning; for Moni­
+que Chireau Wubbenhorst et al. by Heather Hacker; and for 375 Women 
+Injured by Second and Third Trimester Late Term Abortions et al. by 
+Allan E. Parker, Jr., R. Clayton Trotter, and Mary J. Browning. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+California et al. by Rob Bonta, Attorney General of California, Michael J. 
+Mongan, Solicitor General, Renu R. George, Senior Assistant Attorney 
+General, and Aimee Feinberg and Helen H. Hong, Deputy Solicitors Gen­
+eral, and Karli Eisenberg, Supervising Deputy Attorney General, by An­
+drew J. Bruck, Acting Attorney General of New Jersey, and by the Attor­
+neys General for their respective jurisdictions as follows: Philip J. Weiser 
+of Colorado, William Tong of Connecticut, Kathleen Jennings of Dela­
+ware, Karl A. Racine of the District of Columbia, Clare E. Connors of 
+Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E. 
+Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Mich­
+igan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Hector Bald-
+eras of New Mexico, Letitia James of New York, Joshua H. Stein of North 
+Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, 
+Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, 
+Mark R. Herring of Virginia, Robert W. Ferguson of Washington, and 
+Joshua L. Kaul of Wisconsin; for the Abortion Care Network et al. by E. 
+Joshua Rosenkranz, Jennifer Keighley, Rachel G. Shalev, and Elizabeth 
+R. Moulton; for Abortion Funds and Practical Support Organizations by 
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+225 
+Opinion of the Court 
+tion should be allowed under some but not all circumstances, 
+and those within this group hold a variety of views about 
+the particular restrictions that should be imposed. 
+For the frst 185 years after the adoption of the Constitu­
+tion, each State was permitted to address this issue in ac­
+cordance with the views of its citizens. Then, in 1973, this 
+Court decided Roe v. Wade, 410 U. S. 113. Even though the 
+Constitution makes no mention of abortion, the Court held 
+that it confers a broad right to obtain one. It did not claim 
+Stephanie Toti, Amanda Allen, and Melissa Shube; for the American Bar 
+Association by Reginald M. Turner, Amanda Shafer Berman, Clifton S. 
+Elgarten, Keith Harrison, and Monica R. Sterling; for the American Civil 
+Liberties Union et al. by Brigitte Amiri, Jennifer Dalven, Louise Mell­
+ing, and David D. Cole; for the American College of Obstetricians and 
+Gynecologists et al. by Kimberly A. Parker, Shiri A. Hickman, and Alan 
+E. Schoenfeld; for the American Historical Association et al. by Jessica 
+Ellsworth, Kaitlyn A. Golden, and Alicia J. Paller; for Americans United 
+for Separation of Church and State et al. by Richard B. Katskee; for the 
+Autistic Self Advocacy Network et al. by Geoffrey M. Wyatt; for the Cali­
+fornia Women's Law Center by Theane D. Evangelis and Lauren Blas; for 
+Campaña Nacional por el Aborto Libre, Seguro y Accesible et al. by 
+Hiram Meléndez-Juarbe; for Catholics for Choice et al. by Eugene M. Gel­
+ernter and Saul B. Shapiro; for the Constitutional Accountability Center 
+by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for Current 
+and Former Prosecutors et al. by John P. Mastando III and David Weiss; 
+for Economists by Anjali Srinivasan; for Howard University School of 
+Law Human and Civil Rights Clinic by Tiffany R. Wright; for Human 
+Rights Watch et al. by Jeffrey T. Green, Xiao Wang, Michael G. Bochenek, 
+and Amanda Klasing; for International and Comparative Legal Scholars 
+by Shannon Rose Selden and Martha F. Davis; for the International Fed­
+eration of Gynecology and Obstetrics by Adam Gershenson, Kathleen 
+Hartnett, and Angeline Chen; for the Lawyers' Committee for Civil Rights 
+Under Law et al. by Damon Hewitt, Jon Greenbaum, Wade Henderson, 
+and Lena Zwarensteyn; for LGBTQ Organizations et al. by Deanne E. 
+Maynard, Brian R. Matsui, Jamie A. Levitt, James E. Hough, Katie L. 
+Viggiani, Shannon Minter, and Julianna Gonen; for Local Governments 
+by Jonathan B. Miller, Jonathan K. Youngwood, Simona G. Strauss, 
+Anne L. Morgan, Arturo G. Michel, Michael N. Feuer, Rodrigo A. Castro-
+Silva, Diana P. Cortes, Lyndsey M. Olson, Dennis J. Herrera, James R. 
+Williams, and Peter S. Holmes; for National Advocates for Pregnant 
+
+Page Proof Pending Publication
+226 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+that American law or the common law had ever recognized 
+such a right, and its survey of history ranged from the consti­
+tutionally irrelevant (e. g., its discussion of abortion in antiq­
+uity) to the plainly incorrect (e. g., its assertion that abortion 
+Women et al. by Lynn M. Paltrow and David T. Goldberg; for the National 
+Asian Pacifc American Women's Forum et al. by Robert M. Palumbos and 
+Niyati Shah; for the National Women's Law Center et al. by Fatima Goss 
+Graves, Gretchen Borchelt, Heather Shumaker, Michelle Banker, Sunu 
+Chandy, and Agnès Dunogué; for Organizations Dedicated to the Fight for 
+Reproductive Justice by Jessica Ring Amunson; for Reproductive Justice 
+Scholars by Gary N. Frischling and Erin M. Culbertson; for Social Sci­
+ence Experts by Leah R. Bruno; for the Yale Law School Information 
+Society Project by Priscilla J. Smith; for YWCA USA et al. by Angela 
+C. Vigil, Lindsay Wright Brett, and Kimberly F. Rich; for Lee C. Bol­
+linger by Orin Snyder and Joshua S. Lipshutz; for Cecilia Fire Thunder 
+et al. by Lael Echo-Hawk; for Anthony Hawks by Stephen C. Leckar; for 
+Serena Mayeri by Roberta A. Kaplan; for Scott Pyles by Scott Pyles, pro 
+se; for 236 Members of Congress by John A. Freedman and Sally L. Pei; 
+for 500 Women Athletes et al. by David A. Barrett; for 547 Deans et al. 
+by Edward T. Waters, Phillip A. Escoriaza, and Rosie Dawn Griffn; and 
+for 896 State Legislators by Claude G. Szyfer. 
+Briefs of amici curiae were fled for Advancing American Freedom, 
+Inc., et al. by Renee K. Carlson, Teresa S. Collett, and Matthew J. Sheehan; 
+for Advocates for Youth, Inc., et al. by Erica W. Harris; for the Alabama 
+Center for Law and Liberty by Matthew J. Clark; for the American Soci­
+ety for Legal History et al. by Catherine M. Foti, Karen R. King, Nicole 
+L. Buseman, and Bronwyn C. Roantree; for Americans United for Life 
+by Catherine Glenn Foster, Steven H. Aden, and Clarke D. Forsythe; for 
+Biologists by Lynn D. Dowd; for Birth Equity Organizations et al. by Car­
+olyn F. Corwin; for the Billy Graham Evangelistic Association et al. by 
+Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Davids, and 
+David A. Bruce; for Care Net et al. by Harold J. Cassidy, Joseph R. Zak­
+hary, and Thomas J. Viggiano III; for the Catholic Medical Association 
+et al. by Maura K. Quinlan; for the CatholicVote.org Education Fund by 
+Scott W. Gaylord; for the Center for Family and Human Rights by Alexis 
+I. Fragosa and Cathleen A. Ruse; for the Center for Medical Progress 
+et al. by Charles S. LiMandri, Paul M. Jonna, Jeffrey M. Trissell, Har­
+meet K. Dhillon, and Mark P. Meuser; for the Christian Legal Society 
+et al. by Kimberlee Wood Colby, Kenneth W. Starr, and Bradley J. Lingo; 
+for Christian Medical and Dental Associations by D. Kent Safriet and Ken­
+neth C. Daines; for the Claremont Institute's Center for Constitutional 
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+227 
+Opinion of the Court 
+was probably never a crime under the common law). After 
+cataloging a wealth of other information having no bearing 
+on the meaning of the Constitution, the opinion concluded 
+with a numbered set of rules much like those that might be 
+found in a statute enacted by a legislature. 
+Jurisprudence by John C. Eastman and Anthony T. Caso; for European 
+Law Professors by Simon A. Steel and Stephen R. McAllister; for Euro­
+pean Legal Scholars by Brian J. Field and Riddhi Dasgupta; for Experts, 
+Researchers, and Advocates Opposing the Criminalization of People Who 
+Have Abortions by Farah Diaz-Tello, Sara L. Ainsworth, Paul J. Law­
+rence, Jessica A. Skelton, and Alanna Peterson; for the Feminist Majority 
+Foundation et al. by John E. Hall and David M. Zionts; for the Foundation 
+for Moral Law et al. by John A. Eidsmoe and Roy S. Moore; for the 
+Foundation to Abolish Abortion et al. by Bradley W. Pierce; for Good 
+Counsel, Inc., by Sean Collier; for Heartbeat International, Inc., by Dan­
+ielle M. White; for Human Coalition Action et al. by Chelsey D. Youman; 
+for Illinois Right to Life et al. by Thomas G. Olp and Rita Louise Lowery 
+Gitchell; for Intercessors for America et al. by William J. Olson and Phil­
+lip L. Jauregui; for the Jewish Coalition for Religious Liberty by Howard 
+Slugh; for Legal Voice et al. by Kim Clark and Amanda J. Beane; for the 
+LONANG Institute by Kerry Lee Morgan and Randall A. Pentiuk; for 
+the March for Life Education and Defense Fund by Jonathan P. Lienhard; 
+for Organizations of Women Lawyers—Women Lawyers on Guard Inc. 
+et al. by Mia Guizzetti Hayes, Cory M. Amron, Elaine Metlin, and Karen 
+M. Richardson; for the Pacifc Justice Institute by Frederick W. Clay-
+brook, Jr., and David A. Bruce; for the Pennsylvania Pro-Life Federation 
+by Maura K. Quinlan; for Priests for Life by Robert Joseph Muise and 
+David Yerushalmi; for Scholars of Court Procedure by Anna-Rose Ma­
+thieson and Susan Yorke; for the Society for Maternal-Fetal Medicine 
+et al. by Janice Mac Avoy, Jennifer L. Colyer, and Leigh G. Rome; for 
+United Nations Mandate Holders by Emma Lindsay; for the United 
+States Conference of Catholic Bishops et al. by Anthony R. Picarello, Jr., 
+Jeffrey Hunter Moon, Michael F. Moses, Carl H. Esbeck, Christian J. 
+Strickland, and Stephen J. Carmody; for Women Legislators et al. by H. 
+Christopher Bartolomucci and Hannah C. Smith; for Randy Beck by 
+Elizabeth Brooks Scherer; for David Boyle by David Boyle, pro se; for 
+Maureen L. Condic et al. by Gene C. Schaerr and Scott D. Goodwin; for 
+Joseph W. Dellapenna by Frederick W. Claybrook, Jr.; for Jonathan Eng­
+lish by Jonathan English, pro se; for Andy Gipson by William L. Smith, 
+Sharon A. Rose, and Jared R. Butcher; for Kurt T. Lash by Kevin C. 
+Walsh; for Robin Pierucci et al. by Catherine W. Short; for Hannah S. 
+
+Page Proof Pending Publication
+228 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Under this scheme, each trimester of pregnancy was regu­
+lated differently, but the most critical line was drawn at 
+roughly the end of the second trimester, which, at the time, 
+corresponded to the point at which a fetus was thought to 
+achieve “viability,” i. e., the ability to survive outside the 
+womb. Although the Court acknowledged that States had a 
+legitimate interest in protecting “potential life,” 1 it found 
+that this interest could not justify any restriction on pre­
+viability abortions. The Court did not explain the basis for 
+this line, and even abortion supporters have found it hard 
+to defend Roe's reasoning. One prominent constitutional 
+scholar wrote that he “would vote for a statute very much 
+like the one the Court end[ed] up drafting” if he were “a 
+legislator,” but his assessment of Roe was memorable and 
+brutal: Roe was “not constitutional law” at all and gave “al­
+most no sense of an obligation to try to be.” 2 
+At the time of Roe, 30 States still prohibited abortion at 
+all stages. In the years prior to that decision, about a third 
+of the States had liberalized their laws, but Roe abruptly 
+ended that political process. It imposed the same highly 
+restrictive regime on the entire Nation, and it effectively 
+struck down the abortion laws of every single State.3 
+As 
+Justice Byron White aptly put it in his dissent, the decision 
+represented the “exercise of raw judicial power,” 410 U. S., 
+et al. by Mary J. Browning, Allan E. Parker, Jr., and R. Clayton Trotter; 
+for Lee J. Strang by Philip D. Williamson; for Connie Weiskopf et al. by 
+Kristine L. Brown, pro se; for 22 State Policy Organizations by J. Thomas 
+Smith; for 141 International Legal Scholars by Antony B. Kolenc and 
+Stephen M. Krason; for 228 Members of Congress by Catherine Glenn 
+Foster and Steven H. Aden; for 240 Women Scholars et al. by Teresa S. 
+Collett, Erika Bachiochi, and Helen M. Alvaré; and for 396 State Legisla­
+tors by Jeffrey A. Shafer. 
+1 Roe v. Wade, 410 U. S. 113, 163 (1973). 
+2 J. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale 
+L. J. 920, 926, 947 (1973) (Ely) (emphasis deleted). 
+3 L. Tribe, Foreword: Toward a Model of Roles in the Due Process of 
+Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (Tribe). 
+
+Cite as: 597 U. S. 215 (2022) 
+229 
+Opinion of the Court 
+at 222, and it sparked a national controversy that has embit­
+tered our political culture for a half century.4 
+Eventually, in Planned Parenthood of Southeastern Pa. v. 
+Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the 
+Members of the Court split three ways. Two Justices ex­
+pressed no desire to change Roe in any way.5 
+Four others 
+wanted to overrule the decision in its entirety.6 
+And the 
+three remaining Justices, who jointly signed the controlling 
+opinion, took a third position.7 
+Their opinion did not en­
+dorse Roe's reasoning, and it even hinted that one or more 
+of its authors might have “reservations” about whether the 
+Constitution protects a right to abortion.8 
+But the opinion 
+concluded that stare decisis, which calls for prior decisions 
+to be followed in most instances, required adherence to what 
+it called Roe's “central holding”—that a State may not 
+constitutionally protect fetal life before “viability”—even if 
+that holding was wrong.9 
+Anything less, the opinion 
+claimed, would undermine respect for this Court and the rule 
+of law. 
+Paradoxically, the judgment in Casey did a fair amount 
+of overruling. Several important abortion decisions were 
+overruled in toto, and Roe itself was overruled in part.10 
+4 See R. Ginsburg, Speaking in a Judicial Voice, 67 N. Y. U. L. Rev. 1185, 
+1208 (1992) (“Roe . . . halted a political process that was moving in a reform 
+direction and thereby, I believed, prolonged divisiveness and deferred sta­
+ble settlement of the issue”). 
+5 See 505 U. S., at 911 (Stevens, J., concurring in part and dissenting in 
+part); id., at 922 (Blackmun, J., concurring in part, concurring in judgment 
+in part, and dissenting in part). 
+6 See id., at 944 (Rehnquist, C. J., concurring in judgment in part and 
+dissenting in part); id., at 979 (Scalia, J., concurring in judgment in part 
+and dissenting in part). 
+7 See id., at 843 (joint opinion of O'Connor, Kennedy, and Souter, JJ.). 
+8 Id., at 853. 
+9 Id., at 860. 
+10 Id., at 861, 870, 873 (overruling Akron v. Akron Center for Reproduc­
+tive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American Col­
+lege of Obstetricians and Gynecologists, 476 U. S. 747 (1986)). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+230 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Casey threw out Roe's trimester scheme and substituted a 
+new rule of uncertain origin under which States were forbid­
+den to adopt any regulation that imposed an “undue burden” 
+on a woman's right to have an abortion.11 
+The decision pro­
+vided no clear guidance about the difference between a “due” 
+and an “undue” burden. But the three Justices who au­
+thored the controlling opinion “call[ed] the contending sides 
+of a national controversy to end their national division” by 
+treating the Court's decision as the fnal settlement of the 
+question of the constitutional right to abortion.12 
+As has become increasingly apparent in the intervening 
+years, Casey did not achieve that goal. Americans continue 
+to hold passionate and widely divergent views on abortion, 
+and state legislatures have acted accordingly. Some have 
+recently enacted laws allowing abortion, with few restric­
+tions, at all stages of pregnancy. Others have tightly re­
+stricted abortion beginning well before viability. And in 
+this case, 26 States have expressly asked this Court to over­
+rule Roe and Casey and allow the States to regulate or pro­
+hibit pre-viability abortions. 
+Before us now is one such state law. The State of Missis­
+sippi asks us to uphold the constitutionality of a law that 
+generally prohibits an abortion after the 15th week of preg­
+nancy—several weeks before the point at which a fetus is 
+now regarded as “viable” outside the womb. In defending 
+this law, the State's primary argument is that we should re­
+consider and overrule Roe and Casey and once again allow 
+each State to regulate abortion as its citizens wish. On the 
+other side, respondents and the Solicitor General ask us to 
+reaffrm Roe and Casey, and they contend that the Missis­
+sippi law cannot stand if we do so. Allowing Mississippi to 
+prohibit abortions after 15 weeks of pregnancy, they argue, 
+“would be no different than overruling Casey and Roe en­
+tirely.” Brief for Respondents 43. They contend that “no 
+11 505 U. S., at 874. 
+12 Id., at 867. 
+
+Cite as: 597 U. S. 215 (2022) 
+231 
+Opinion of the Court 
+half-measures” are available and that we must either reaf­
+frm or overrule Roe and Casey. Brief for Respondents 50. 
+We hold that Roe and Casey must be overruled. The Con­
+stitution makes no reference to abortion, and no such right 
+is implicitly protected by any constitutional provision, includ­
+ing the one on which the defenders of Roe and Casey now 
+chiefy rely—the Due Process Clause of the Fourteenth 
+Amendment. That provision has been held to guarantee 
+some rights that are not mentioned in the Constitution, but 
+any such right must be “deeply rooted in this Nation's his­
+tory and tradition” and “implicit in the concept of ordered 
+liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 
+(1997) (internal quotation marks omitted). 
+The right to abortion does not fall within this category. 
+Until the latter part of the 20th century, such a right was 
+entirely unknown in American law. Indeed, when the Four­
+teenth Amendment was adopted, three quarters of the 
+States made abortion a crime at all stages of pregnancy. 
+The abortion right is also critically different from any other 
+right that this Court has held to fall within the Fourteenth 
+Amendment's protection of “liberty.” Roe's defenders char­
+acterize the abortion right as similar to the rights recognized 
+in past decisions involving matters such as intimate sexual 
+relations, contraception, and marriage, but abortion is funda­
+mentally different, as both Roe and Casey acknowledged, be­
+cause it destroys what those decisions called “fetal life” and 
+what the law now before us describes as an “unborn human 
+being.” 13 
+Stare decisis, the doctrine on which Casey's controlling 
+opinion was based, does not compel unending adherence 
+to Roe's abuse of judicial authority. Roe was egregiously 
+wrong from the start. Its reasoning was exceptionally 
+weak, and the decision has had damaging consequences. 
+And far from bringing about a national settlement of the 
+13 Miss. Code Ann. § 41–41–191(4)(b) (2018). 
+Page Proof Pending Publication
+
+232 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+abortion issue, Roe and Casey have enfamed debate and 
+deepened division. 
+It is time to heed the Constitution and return the issue of 
+abortion to the people's elected representatives. “The per­
+missibility of abortion, and the limitations upon it, are to be 
+resolved like most important questions in our democracy: by 
+citizens trying to persuade one another and then voting.” 
+Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in 
+part and dissenting in part). That is what the Constitution 
+and the rule of law demand. 
+I 
+The law at issue in this case, Mississippi's Gestational Age 
+Act, see Miss. Code Ann. § 41–41–191 (2018), contains this 
+central provision: “Except in a medical emergency or in the 
+case of a severe fetal abnormality, a person shall not inten­
+tionally or knowingly perform . . . or induce an abortion of 
+an unborn human being if the probable gestational age of the 
+unborn human being has been determined to be greater than 
+ffteen (15) weeks.” § 4(b).14 
+To support this Act, the legislature made a series of fac­
+tual fndings. It began by noting that, at the time of en­
+actment, only six countries besides the United States “per-
+mit[ted] nontherapeutic or elective abortion-on-demand after 
+the twentieth week of gestation.” 15 
+§ 2(a). The legislature 
+14 The Act defnes “gestational age” to be “the age of an unborn human 
+being as calculated from the frst day of the last menstrual period of the 
+pregnant woman.” §3(f). 
+15 Those other six countries were Canada, China, the Netherlands, North 
+Korea, Singapore, and Vietnam. See A. Baglini, Charlotte Lozier Insti­
+tute, Gestational Limits on Abortion in the United States Compared to 
+International Norms 6–7 (2014); M. Lee, Is the United States One of Seven 
+Countries That “Allow Elective Abortions After 20 Weeks of Pregnancy?” 
+Wash. Post (Oct. 9, 2017), www.washingtonpost.com/news/fact-checker/wp/ 
+2017/10/09/is-the-united-states-one-of-seven-countries-that-allow-elective­
+abortions-after-20-weeks-of-pregnancy (stating that the claim made by 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+233 
+Opinion of the Court 
+then found that at 5 or 6 weeks' gestational age an “unborn 
+human being's heart begins beating”; at 8 weeks the “unborn 
+human being begins to move about in the womb”; at 9 weeks 
+“all basic physiological functions are present”; at 10 weeks 
+“vital organs begin to function,” and “[h]air, fngernails, and 
+toenails . . . begin to form”; at 11 weeks “an unborn human 
+being's diaphragm is developing,” and he or she may “move 
+about freely in the womb”; and at 12 weeks the “unborn 
+human being” has “taken on `the human form' in all relevant 
+respects.” § 2(b)(i) (quoting Gonzales v. Carhart, 550 U. S. 
+124, 160 (2007)). It found that most abortions after 15 
+weeks employ “dilation and evacuation procedures which in­
+volve the use of surgical instruments to crush and tear the 
+unborn child,” and it concluded that the “intentional commit­
+ment of such acts for nontherapeutic or elective reasons is a 
+barbaric practice, dangerous for the maternal patient, and 
+demeaning to the medical profession.” § 2(b)(i)(8). 
+Respondents are an abortion clinic, Jackson Women's 
+Health Organization, and one of its doctors. On the day the 
+Gestational Age Act was enacted, respondents fled suit in 
+Federal District Court against various Mississippi offcials, 
+alleging that the Act violated this Court's precedents es­
+tablishing a constitutional right to abortion. The District 
+Court granted summary judgment in favor of respondents 
+and permanently enjoined enforcement of the Act, reasoning 
+that “viability marks the earliest point at which the State's 
+interest in fetal life is constitutionally adequate to justify 
+a legislative ban on nontherapeutic abortions” and that 15 
+weeks' gestational age is “prior to viability.” Jackson 
+the Mississippi Legislature and the Charlotte Lozier Institute was “backed 
+by data”). A more recent compilation from the Center for Reproductive 
+Rights indicates that Iceland and Guinea-Bissau are now also similarly 
+permissive. See The World's Abortion Laws, Center for Reproductive 
+Rights (Feb. 23, 2021), https://reproductiverights.org/maps/worlds­
+abortion-laws/. 
+Page Proof Pending Publication
+
+234 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Women's Health Org. v. Currier, 349 F. Supp. 3d 536, 539– 
+540 (SD Miss. 2018) (internal quotation marks omitted). 
+The Fifth Circuit affrmed. 945 F. 3d 265 (2019). 
+We granted certiorari, 593 U. S. ––– (2021), to resolve the 
+question whether “all pre-viability prohibitions on elective 
+abortions are unconstitutional,” Pet. for Cert. i. Petitioners' 
+primary defense of the Mississippi Gestational Age Act is 
+that Roe and Casey were wrongly decided and that “the Act 
+is constitutional because it satisfes rational-basis review.” 
+Brief for Petitioners 49. Respondents answer that allowing 
+Mississippi to ban pre-viability abortions “would be no differ­
+ent than overruling Casey and Roe entirely.” Brief for Re­
+spondents 43. They tell us that “no half-measures” are 
+available: We must either reaffrm or overrule Roe and 
+Casey. Brief for Respondents 50. 
+II 
+We begin by considering the critical question whether the 
+Constitution, properly understood, confers a right to obtain 
+an abortion. Skipping over that question, the controlling 
+opinion in Casey reaffrmed Roe's “central holding” based 
+solely on the doctrine of stare decisis, but as we will explain, 
+proper application of stare decisis required an assessment of 
+the strength of the grounds on which Roe was based. See 
+infra, at 269–280. 
+We therefore turn to the question that the Casey plurality 
+did not consider, and we address that question in three steps. 
+First, we explain the standard that our cases have used in 
+determining whether the Fourteenth Amendment's refer­
+ence to “liberty” protects a particular right. Second, we ex­
+amine whether the right at issue in this case is rooted in our 
+Nation's history and tradition and whether it is an essential 
+component of what we have described as “ordered liberty.” 
+Finally, we consider whether a right to obtain an abortion 
+is part of a broader entrenched right that is supported by 
+other precedents. 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+235 
+Opinion of the Court 
+A 
+1 
+Constitutional analysis must begin with “the language of 
+the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189 
+(1824), which offers a “fxed standard” for ascertaining what 
+our founding document means, 1 J. Story, Commentaries on 
+the Constitution of the United States § 399, p. 383 (1833). 
+The Constitution makes no express reference to a right to 
+obtain an abortion, and therefore those who claim that it pro­
+tects such a right must show that the right is somehow im­
+plicit in the constitutional text. 
+Roe, however, was remarkably loose in its treatment of the 
+constitutional text. It held that the abortion right, which is 
+not mentioned in the Constitution, is part of a right to pri­
+vacy, which is also not mentioned. See 410 U. S., at 152– 
+153. And that privacy right, Roe observed, had been found 
+to spring from no fewer than fve different constitutional pro­
+visions—the First, Fourth, Fifth, Ninth, and Fourteenth 
+Amendments. Id., at 152. 
+The Court's discussion left open at least three ways in 
+which some combination of these provisions could protect the 
+abortion right. One possibility was that the right was 
+“founded . . . in the Ninth Amendment's reservation of rights 
+to the people.” Id., at 153. Another was that the right was 
+rooted in the First, Fourth, or Fifth Amendment, or in some 
+combination of those provisions, and that this right had been 
+“incorporated” into the Due Process Clause of the Four­
+teenth Amendment just as many other Bill of Rights provi­
+sions had by then been incorporated. Ibid.; see also Mc­
+Donald v. Chicago, 561 U. S. 742, 763–766 (2010) (majority 
+opinion) (discussing incorporation). And a third path was 
+that the First, Fourth, and Fifth Amendments played no role 
+and that the right was simply a component of the “liberty” 
+protected by the Fourteenth Amendment's Due Process 
+Clause. Roe, 410 U. S., at 153. Roe expressed the “feel­
+Page Proof Pending Publication
+
+236 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+[ing]” that the Fourteenth Amendment was the provision 
+that did the work, but its message seemed to be that the 
+abortion right could be found somewhere in the Constitution 
+and that specifying its exact location was not of paramount 
+importance.16 
+The Casey Court did not defend this unfo­
+cused analysis and instead grounded its decision solely on 
+the theory that the right to obtain an abortion is part of 
+the “liberty” protected by the Fourteenth Amendment's Due 
+Process Clause. 
+We discuss this theory in depth below, but before doing so, 
+we briefy address one additional constitutional provision 
+that some of respondents' amici have now offered as yet an­
+other potential home for the abortion right: the Fourteenth 
+Amendment's Equal Protection Clause. 
+See Brief for 
+United States as Amicus Curiae 24 (Brief for United 
+States); see also Brief for Equal Protection Constitutional 
+Law Scholars as Amici Curiae. Neither Roe nor Casey saw 
+ft to invoke this theory, and it is squarely foreclosed by our 
+precedents, which establish that a State's regulation of abor­
+tion is not a sex-based classifcation and is thus not subject 
+to the “heightened scrutiny” that applies to such classifca­
+tions.17 
+The regulation of a medical procedure that only one 
+sex can undergo does not trigger heightened constitutional 
+scrutiny unless the regulation is a “mere pretex[t] designed 
+to effect an invidious discrimination against the members of 
+one sex or the other.” Geduldig v. Aiello, 417 U. S. 484, 496, 
+n. 20 (1974). And as the Court has stated, the “goal of 
+preventing abortion” does not constitute “invidiously dis­
+criminatory animus” against women. Bray v. Alexandria 
+16 The Court's words were as follows: “This right of privacy, whether it 
+be founded in the Fourteenth Amendment's concept of personal liberty 
+and restrictions upon state action, as we feel it is, or, as the District Court 
+determined, in the Ninth Amendment's reservation of rights to the people, 
+is broad enough to encompass a woman's decision whether or not to termi­
+nate her pregnancy.” 410 U. S., at 153. 
+17 See, e. g., Sessions v. Morales-Santana, 582 U. S. 47, 57 (2017). 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+237 
+Opinion of the Court 
+Women's Health Clinic, 506 U. S. 263, 273–274 (1993) (inter­
+nal quotation marks omitted). Accordingly, laws regulating 
+or prohibiting abortion are not subject to heightened scru­
+tiny. Rather, they are governed by the same standard of 
+review as other health and safety measures.18 
+With this new theory addressed, we turn to Casey's bold 
+assertion that the abortion right is an aspect of the “liberty” 
+protected by the Due Process Clause of the Fourteenth 
+Amendment. 505 U. S., at 846; Brief for Respondents 17; 
+Brief for United States 21–22. 
+2 
+The underlying theory on which this argument rests—that 
+the Fourteenth Amendment's Due Process Clause provides 
+substantive, as well as procedural, protection for “liberty”— 
+has long been controversial. But our decisions have held 
+that the Due Process Clause protects two categories of sub­
+stantive rights. 
+The frst consists of rights guaranteed by the frst eight 
+Amendments. Those Amendments originally applied only 
+to the Federal Government, Barron ex rel. Tiernan v. 
+Mayor of Baltimore, 7 Pet. 243, 247–251 (1833) (opinion for 
+the Court by Marshall, C. J.), but this Court has held that 
+the Due Process Clause of the Fourteenth Amendment “in­
+corporates” the great majority of those rights and thus 
+makes them equally applicable to the States. See McDon­
+ald, 561 U. S., at 763–767, and nn. 12–13. The second cate­
+gory—which is the one in question here—comprises a select 
+list of fundamental rights that are not mentioned anywhere 
+in the Constitution. 
+In deciding whether a right falls into either of these cate­
+gories, the Court has long asked whether the right is “deeply 
+rooted in [our] history and tradition” and whether it is essen­
+tial to our Nation's “scheme of ordered liberty.” Timbs v. 
+18 We discuss this standard in Part VI of this opinion. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+238 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Indiana, 586 U. S. –––, ––– (2019) (internal quotation marks 
+omitted); McDonald, 561 U. S., at 764, 767 (internal quota­
+tion marks omitted); Glucksberg, 521 U. S., at 721 (internal 
+quotation marks omitted).19 
+And in conducting this inquiry, 
+we have engaged in a careful analysis of the history of the 
+right at issue. 
+Justice Ginsburg's opinion for the Court in Timbs is a re­
+cent example. In concluding that the Eighth Amendment's 
+protection against excessive fnes is “fundamental to our 
+scheme of ordered liberty” and “deeply rooted in this Na­
+tion's history and tradition,” 586 U. S., at ––– (internal quota­
+tion marks omitted), her opinion traced the right back to 
+Magna Carta, Blackstone's Commentaries, and 35 of the 37 
+state constitutions in effect at the ratifcation of the Four­
+teenth Amendment. 586 U. S., at ––– – –––. 
+A similar inquiry was undertaken in McDonald, which 
+held that the Fourteenth Amendment protects the right to 
+keep and bear arms. The lead opinion surveyed the origins 
+of the Second Amendment, the debates in Congress about 
+the adoption of the Fourteenth Amendment, the state consti­
+tutions in effect when that Amendment was ratifed (at least 
+22 of the 37 States protected the right to keep and bear 
+arms), federal laws enacted during the same period, and 
+other relevant historical evidence. 561 U. S., at 767–777. 
+Only then did the opinion conclude that “the Framers and 
+ratifers of the Fourteenth Amendment counted the right to 
+keep and bear arms among those fundamental rights neces­
+sary to our system of ordered liberty.” Id., at 778; see also 
+id., at 822–850 (Thomas, J., concurring in part and concur­
+ring in judgment) (surveying history and reaching the same 
+19 See also, e. g., Duncan v. Louisiana, 391 U. S. 145, 148 (1968) (asking 
+whether “a right is among those `fundamental principles of liberty and 
+justice which lie at the base of our civil and political institutions' ”); Palko 
+v. Connecticut, 302 U. S. 319, 325 (1937) (requiring “a `principle of justice 
+so rooted in the traditions and conscience of our people as to be ranked 
+as fundamental' ” (quoting Snyder v. Massachusetts, 291 U. S. 97, 105 
+(1934))). 
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+239 
+Opinion of the Court 
+result under the Fourteenth Amendment's Privileges or Im­
+munities Clause). 
+Timbs and McDonald concerned the question whether the 
+Fourteenth Amendment protects rights that are expressly 
+set out in the Bill of Rights, and it would be anomalous if 
+similar historical support were not required when a putative 
+right is not mentioned anywhere in the Constitution. Thus, 
+in Glucksberg, which held that the Due Process Clause does 
+not confer a right to assisted suicide, the Court surveyed 
+more than 700 years of “Anglo-American common-law tradi­
+tion,” 521 U. S., at 711, and made clear that a fundamental 
+right must be “objectively, `deeply rooted in this Nation's 
+history and tradition,' ” id., at 720–721. 
+Historical inquiries of this nature are essential whenever 
+we are asked to recognize a new component of the “liberty” 
+protected by the Due Process Clause because the term “lib­
+erty” alone provides little guidance. “Liberty” is a capa­
+cious term. As Lincoln once said: “We all declare for lib­
+erty; but in using the same word we do not all mean the same 
+thing.” 20 
+In a well-known essay, Isaiah Berlin reported that 
+“historians of ideas” had cataloged more than 200 different 
+senses in which the term had been used.21 
+In interpreting what is meant by the Fourteenth Amend­
+ment's reference to “liberty,” we must guard against the 
+natural human tendency to confuse what that Amendment 
+protects with our own ardent views about the liberty that 
+Americans should enjoy. That is why the Court has long 
+been “reluctant” to recognize rights that are not mentioned 
+in the Constitution. Collins v. Harker Heights, 503 U. S. 
+115, 125 (1992). “Substantive due process has at times been 
+a treacherous feld for this Court,” Moore v. East Cleveland, 
+431 U. S. 494, 502 (1977) (plurality opinion), and it has some­
+times led the Court to usurp authority that the Constitution 
+20 Address at Sanitary Fair at Baltimore, Md. (Apr. 18, 1864), reprinted 
+in 7 The Collected Works of Abraham Lincoln 301 (R. Basler ed. 1953) 
+(emphasis deleted). 
+21 Four Essays on Liberty 121 (1969). 
+
+240 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+entrusts to the people's elected representatives. See Re­
+gents of Univ. of Mich. v. Ewing, 474 U. S. 214, 225–226 
+(1985). As the Court cautioned in Glucksberg, “[w]e must 
+. . . exercise the utmost care whenever we are asked to break 
+new ground in this feld, lest the liberty protected by the 
+Due Process Clause be subtly transformed into the policy 
+preferences of the Members of this Court.” 521 U. S., at 720 
+(internal quotation marks and citation omitted). 
+On occasion, when the Court has ignored the “[a]ppro­
+priate limits” imposed by “ `respect for the teachings of his­
+tory,' ” Moore, 431 U. S., at 503 (plurality opinion), it has 
+fallen into the freewheeling judicial policymaking that char­
+acterized discredited decisions such as Lochner v. New York, 
+198 U. S. 45 (1905). The Court must not fall prey to such an 
+unprincipled approach. Instead, guided by the history and 
+tradition that map the essential components of our Nation's 
+concept of ordered liberty, we must ask what the Fourteenth 
+Amendment means by the term “liberty.” When we engage 
+in that inquiry in the present case, the clear answer is that 
+the Fourteenth Amendment does not protect the right to 
+an abortion.22 
+22 That is true regardless of whether we look to the Amendment's Due 
+Process Clause or its Privileges or Immunities Clause. Some scholars 
+and Justices have maintained that the Privileges or Immunities Clause is 
+the provision of the Fourteenth Amendment that guarantees substantive 
+rights. See, e. g., McDonald v. Chicago, 561 U. S. 742, 813–850 (2010) 
+(Thomas, J., concurring in part and concurring in judgment); Duncan, 391 
+U. S., at 165–166 (Black, J., concurring); A. Amar, Bill of Rights: Creation 
+and Reconstruction 163–180 (1998) (Amar); J. Ely, Democracy and Distrust 
+22–30 (1980); 2 W. Crosskey, Politics and the Constitution in the History 
+of the United States 1089–1095 (1953). But even on that view, such a 
+right would need to be rooted in the Nation's history and tradition. See 
+Corfeld v. Coryell, 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1823) 
+(describing unenumerated rights under the Privileges and Immunities 
+Clause, Art. IV, § 2, as those “fundamental” rights “which have, at all 
+times, been enjoyed by the citizens of the several states”); Amar 176 (rely­
+ing on Corfeld to interpret the Privileges or Immunities Clause); cf. Mc­
+Donald, 561 U. S., at 819–820, 832, 854 (opinion of Thomas, J.) (reserving 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+241 
+Opinion of the Court 
+B 
+1 
+Until the latter part of the 20th century, there was no sup­
+port in American law for a constitutional right to obtain an 
+abortion. No state constitutional provision had recognized 
+such a right. Until a few years before Roe was handed 
+down, no federal or state court had recognized such a right. 
+Nor had any scholarly treatise of which we are aware. And 
+although law review articles are not reticent about advocat­
+ing new rights, the earliest article proposing a constitutional 
+right to abortion that has come to our attention was pub­
+lished only a few years before Roe.23 
+Not only was there no support for such a constitutional 
+right until shortly before Roe, but abortion had long been a 
+crime in every single State. At common law, abortion was 
+criminal in at least some stages of pregnancy and was 
+regarded as unlawful and could have very serious conse­
+quences at all stages. American law followed the common 
+law until a wave of statutory restrictions in the 1800s ex­
+panded criminal liability for abortions. By the time of the 
+adoption of the Fourteenth Amendment, three-quarters of 
+the States had made abortion a crime at any stage of preg­
+nancy, and the remaining States would soon follow. 
+Roe either ignored or misstated this history, and Casey 
+declined to reconsider Roe's faulty historical analysis. It is 
+therefore important to set the record straight. 
+the question whether the Privileges or Immunities Clause protects “any 
+rights besides those enumerated in the Constitution”). 
+23 See R. Lucas, Federal Constitutional Limitations on the Enforcement 
+and Administration of State Abortion Statutes, 46 N. C. L. Rev. 730 (1968) 
+(Lucas); see also D. Garrow, Liberty and Sexuality 334–335 (1994) (Gar­
+row) (stating that Lucas was “undeniably the frst person to fully articu­
+late on paper” the argument that “a woman's right to choose abortion was 
+a fundamental individual freedom protected by the U. S. Constitution's 
+guarantee of personal liberty”). 
+Page Proof Pending Publication
+
+242 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+2 
+a 
+We begin with the common law, under which abortion was 
+a crime at least after “quickening”—i. e., the frst felt move­
+ment of the fetus in the womb, which usually occurs between 
+the 16th and 18th week of pregnancy.24 
+The “eminent common-law authorities (Blackstone, Coke, 
+Hale, and the like),” Kahler v. Kansas, 589 U. S. –––, ––– 
+(2020), all describe abortion after quickening as criminal. 
+Henry de Bracton's 13th-century treatise explained that if a 
+person has “struck a pregnant woman, or has given her poi­
+son, whereby he has caused abortion, if the foetus be already 
+formed and animated, and particularly if it be animated, he 
+commits homicide.” 2 De Legibus et Consuetudinibus An­
+gliae 279 (T. Twiss ed. 1879); see also 1 Fleta, ch. 23, re­
+printed in 72 Selden Soc. 60–61 (H. Richardson & G. Sayles 
+eds. 1955) (13th-century treatise).25 
+Sir Edward Coke's 17th-century treatise likewise asserted 
+that abortion of a quick child was “murder” if the “childe be 
+born alive” and a “great misprision” if the “childe dieth in 
+her body.” 
+3 Institutes of the Laws of England 50–51 
+24 The exact meaning of “quickening” is subject to some debate. Com­
+pare Brief for Scholars of Jurisprudence as Amici Curiae 12–14, and n. 32 
+(emphasis deleted) (“ `a quick child' ” meant simply a “live” child, and under 
+the era's outdated knowledge of embryology, a fetus was thought to be­
+come “quick” at around the sixth week of pregnancy), with Brief for Amer­
+ican Historical Association et al. as Amici Curiae 6, n. 2 (“quick” and 
+“quickening” consistently meant “the woman's perception of fetal move­
+ment”). We need not wade into this debate. First, it suffces for present 
+purposes to show that abortion was criminal by at least the 16th or 18th 
+week of pregnancy. Second, as we will show, during the relevant pe­
+riod—i. e., the period surrounding the enactment of the Fourteenth 
+Amendment—the quickening distinction was abandoned as States crimi­
+nalized abortion at all stages of pregnancy. See infra, at 246–250. 
+25 Even before Bracton's time, English law imposed punishment for the 
+killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed. 1972) 
+(imposing penalty for any abortion and treating a woman who aborted a 
+“quick” child “as if she were a murderess”). 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+243 
+Opinion of the Court 
+(1644). (“Misprision” referred to “some heynous offence 
+under the degree of felony.” Id., at 139.) Two treatises by 
+Sir Matthew Hale likewise described abortion of a quick 
+child who died in the womb as a “great crime” and a “great 
+misprision.” Pleas of the Crown 53 (P. Glazebrook ed. 1972); 
+1 History of the Pleas of the Crown 433 (1736) (Hale). And 
+writing near the time of the adoption of our Constitution, 
+William Blackstone explained that abortion of a “quick” child 
+was “by the ancient law homicide or manslaughter” (citing 
+Bracton), and at least a very “heinous misdemeanor” (citing 
+Coke). 1 Commentaries on the Laws of England 129–130 
+(7th ed. 1775) (Blackstone). 
+English cases dating all the way back to the 13th century 
+corroborate the treatises' statements that abortion was a 
+crime. See generally J. Dellapenna, Dispelling the Myths 
+of Abortion History 126, and n. 16, 134–142, 188–194, and 
+nn. 84–86 (2006) (Dellapenna); J. Keown, Abortion, Doctors 
+and the Law 3–12 (1988) (Keown). In 1732, for example, 
+Eleanor Beare was convicted of “destroying the Foetus in 
+the Womb” of another woman and “thereby causing her to 
+miscarry.” 26 
+For that crime and another “misdemeanor,” 
+Beare was sentenced to two days in the pillory and three 
+years' imprisonment.27 
+Although a pre-quickening abortion was not itself consid­
+ered homicide, it does not follow that abortion was permissi­
+ble at common law—much less that abortion was a legal 
+right. Cf. Glucksberg, 521 U. S., at 713 (removal of “com­
+mon law's harsh sanctions did not represent an acceptance of 
+suicide”). Quite to the contrary, in the 1732 case mentioned 
+above, the judge said of the charge of abortion (with no men­
+tion of quickening) that he had “never met with a case so 
+barbarous and unnatural.” 28 
+Similarly, an indictment from 
+1602, which did not distinguish between a pre-quickening 
+and post-quickening abortion, described abortion as “perni­
+26 2 Gentleman's Magazine 931 (Aug. 1732). 
+27 Id., at 932. 
+28 Ibid. 
+Page Proof Pending Publication
+
+244 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+cious” and “against the peace of our Lady the Queen, her 
+crown and dignity.” Keown 7 (quoting R. v. Webb, Calendar 
+of Assize Records, Surrey Indictments 512 (1980)). 
+That the common law did not condone even pre-quickening 
+abortions is confrmed by what one might call a proto-felony­
+murder rule. Hale and Blackstone explained a way in which 
+a pre-quickening abortion could rise to the level of a homi­
+cide. Hale wrote that if a physician gave a woman “with 
+child” a “potion” to cause an abortion, and the woman died, 
+it was “murder” because the potion was given “unlawfully 
+to destroy her child within her.” 1 Hale 429–430 (emphasis 
+added). As Blackstone explained, to be “murder” a killing 
+had to be done with “malice aforethought, . . . either express, 
+or implied.” 4 Blackstone 198 (emphasis deleted). In the 
+case of an abortionist, Blackstone wrote, “the law will imply 
+[malice]” for the same reason that it would imply malice if a 
+person who intended to kill one person accidentally killed a 
+different person: 
+“[I]f one shoots at A and misses him, but kills B, this is 
+murder; because of the previous felonious intent, which 
+the law transfers from one to the other. The same is 
+the case, where one lays poison for A; and B, against 
+whom the prisoner had no malicious intent, takes it, and 
+it kills him; this is likewise murder. So also, if one 
+gives a woman with child a medicine to procure abor­
+tion, and it operates so violently as to kill the woman, 
+this is murder in the person who gave it.” Id., at 200– 
+201 (emphasis added; footnotes omitted).29 
+Notably, Blackstone, like Hale, did not state that this 
+proto-felony-murder rule required that the woman be “with 
+29 Other treatises restated the same rule. 
+See 1 W. Russell & C. 
+Greaves, Crimes and Misdemeanors 540 (5th ed. 1845) (“So where a person 
+gave medicine to a woman to procure an abortion, and where a person put 
+skewers into the womb of a woman for the same purpose, by which in both 
+cases the women were killed, these acts were clearly held to be murder” 
+(footnotes omitted)); 1 E. East, Pleas of the Crown 230 (1803) (similar). 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+245 
+Opinion of the Court 
+quick child”—only that she be “with child.” Id., at 201. 
+And it is revealing that Hale and Blackstone treated abor­
+tionists differently from other physicians or surgeons who 
+caused the death of a patient “without any intent of doing 
+[the patient] any bodily hurt.” Hale 429; see 4 Blackstone 
+197. These other physicians—even if “unlicensed”—would 
+not be “guilty of murder or manslaughter.” Hale 429. But 
+a physician performing an abortion would, precisely because 
+his aim was an “unlawful” one. 
+In sum, although common-law authorities differed on the 
+severity of punishment for abortions committed at different 
+points in pregnancy, none endorsed the practice. Moreover, 
+we are aware of no common-law case or authority, and 
+the parties have not pointed to any, that remotely suggests 
+a positive right to procure an abortion at any stage of 
+pregnancy. 
+b 
+In this country, the historical record is similar. The “most 
+important early American edition of Blackstone's Commen­
+taries,” District of Columbia v. Heller, 554 U. S. 570, 594 
+(2008), reported Blackstone's statement that abortion of 
+a quick child was at least “a heinous misdemeanor,” 2 
+St. George Tucker, Blackstone's Commentaries 129–130 
+(1803), and that edition also included Blackstone's discussion 
+of the proto-felony-murder rule, 5 id., at 200–201. Manuals 
+for justices of the peace printed in the Colonies in the 18th 
+century typically restated the common-law rule on abortion, 
+and some manuals repeated Hale's and Blackstone's state­
+ments that anyone who prescribed medication “unlawfully to 
+destroy the child” would be guilty of murder if the woman 
+died. See, e. g., J. Parker, Conductor Generalis 220 (1788); 2 
+R. Burn, Justice of the Peace, and Parish Offcer 221–222 (7th 
+ed. 1762) (English manual stating the same).30 
+30 For manuals restating one or both rules, see J. Davis, Criminal Law 
+96, 102–103, 339 (1838); Conductor Generalis 194–195 (1801) (printed in 
+Philadelphia); Conductor Generalis 194–195 (1794) (printed in Albany); 
+Page Proof Pending Publication
+
+246 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+The few cases available from the early colonial period cor­
+roborate that abortion was a crime. See generally Della­
+penna 215–228 (collecting cases). In Maryland in 1652, for 
+example, an indictment charged that a man “Murtherously 
+endeavoured to destroy or Murther the Child by him begot­
+ten in the Womb.” Proprietary v. Mitchell, 10 Md. Ar­
+chives 80, 183 (1652) (W. Browne ed. 1891). And by the 19th 
+century, courts frequently explained that the common law 
+made abortion of a quick child a crime. See, e. g., Smith v. 
+Gaffard, 31 Ala. 45, 51 (1857); Smith v. State, 33 Me. 48, 55 
+(1851); State v. Cooper, 22 N. J. L. 52, 52–55 (1849); Common­
+wealth v. Parker, 50 Mass. 263, 264–268 (1845). 
+c 
+The original ground for drawing a distinction between pre­
+and post-quickening abortions is not entirely clear, but some 
+have attributed the rule to the diffculty of proving that a 
+pre-quickening fetus was alive. At that time, there were 
+no scientifc methods for detecting pregnancy in its early 
+stages,31 and thus, as one court put it in 1872: “[U]ntil the 
+period of quickening there is no evidence of life; and what­
+ever may be said of the foetus, the law has fxed upon this 
+Conductor Generalis 220 (1788) (printed in New York); Conductor Genera­
+lis 198 (1749) (printed in New York); G. Webb, Offce and Authority of a 
+Justice of Peace 232 (1736) (printed in Williamsburg); Conductor Generalis 
+161 (1722) (printed in Philadelphia); see also J. Conley, Doing It by the 
+Book: Justice of the Peace Manuals and English Law in Eighteenth Cen­
+tury America, 6 J. Legal Hist. 257, 265, 267 (1985) (noting that these manu­
+als were the justices' “primary source of legal reference” and of “practical 
+value for a wider audience than the justices”). 
+For cases stating the proto-felony-murder rule, see, e. g., Common­
+wealth v. Parker, 50 Mass. 263, 265 (1845); People v. Sessions, 58 Mich. 
+594, 595–596, 26 N. W. 291, 292–293 (1886); State v. Moore, 25 Iowa 128, 
+131–132 (1868); Smith v. State, 33 Me. 48, 54–55 (1851). 
+31 See E. Rigby, A System of Midwifery 73 (1841) (“Under all circum­
+stances, the diagnosis of pregnancy must ever be diffcult and obscure 
+during the early months”); see also id., at 74–80 (discussing rudimentary 
+techniques for detecting early pregnancy); A. Taylor, A Manual of Medical 
+Jurisprudence 418–421 (6th Am. ed. 1866) (same). 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+247 
+Opinion of the Court 
+period of gestation as the time when the child is endowed 
+with life” because “foetal movements are the frst clearly 
+marked and well defned evidences of life.” Evans v. Peo­
+ple, 49 N. Y. 86, 90 (emphasis added); Cooper, 22 N. J. L., at 
+54 (“In contemplation of law life commences at the moment 
+of quickening, at that moment when the embryo gives the 
+frst physical proof of life, no matter when it frst received 
+it” (emphasis deleted and added)). 
+The Solicitor General offers a different explanation of the 
+basis for the quickening rule, namely, that before quickening 
+the common law did not regard a fetus “as having a `separate 
+and independent existence.' ” Brief for United States 26 
+(quoting Parker, 50 Mass., at 266). But the case on which 
+the Solicitor General relies for this proposition also sug­
+gested that the criminal law's quickening rule was out of step 
+with the treatment of prenatal life in other areas of law, not­
+ing that “to many purposes, in reference to civil rights, an 
+infant in ventre sa mère is regarded as a person in being.” 
+Ibid. (citing 1 Blackstone 129); see also Evans, 49 N. Y., at 
+89; Mills v. Commonwealth, 13 Pa. 631, 633 (1850); Morrow 
+v. Scott, 7 Ga. 535, 537 (1849); Hall v. Hancock, 32 Mass. 255, 
+258 (1834); Thellusson v. Woodford, 4 Ves. 227, 321–322, 31 
+Eng. Rep. 117, 163 (1789). 
+At any rate, the original ground for the quickening rule is 
+of little importance for present purposes because the rule 
+was abandoned in the 19th century. During that period, 
+treatise writers and commentators criticized the quickening 
+distinction as “neither in accordance with the result of medi­
+cal experience, nor with the principles of the common law.” 
+F. Wharton, Criminal Law § 1220, p. 606 (rev. 4th ed. 1857) 
+(footnotes omitted); see also J. Beck, Researches in Medicine 
+and Medical Jurisprudence 26–28 (2d ed. 1835) (describing 
+the quickening distinction as “absurd” and “injurious”).32 
+In 
+32 See Mitchell v. Commonwealth, 78 Ky. 204, 209–210 (1879) (acknowl­
+edging the common-law rule but arguing that “the law should punish abor­
+tions and miscarriages, willfully produced, at any time during the period 
+of gestation”); Mills v. Commonwealth, 13 Pa. 631, 633 (1850) (the quicken­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+248 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+1803, the British Parliament made abortion a crime at all 
+stages of pregnancy and authorized the imposition of severe 
+punishment. See Lord Ellenborough's Act, 43 Geo. 3, ch. 58 
+(1803). One scholar has suggested that Parliament's deci­
+sion “may partly have been attributable to the medical man's 
+concern that fetal life should be protected by the law at all 
+stages of gestation.” Keown 22. 
+In this country during the 19th century, the vast majority 
+of the States enacted statutes criminalizing abortion at all 
+stages of pregnancy. See Appendix A, infra (listing state 
+statutory provisions in chronological order).33 
+By 1868, the 
+year when the Fourteenth Amendment was ratifed, three-
+quarters of the States, 28 out of 37, had enacted statutes 
+making abortion a crime even if it was performed before 
+quickening.34 
+See ibid. Of the nine States that had not yet 
+ing rule “never ought to have been the law anywhere”); J. Bishop, Com­
+mentaries on the Law of Statutory Crimes § 744, p. 471 (1873) (“If we look 
+at the reason of the law, we shall prefer” a rule that “discard[s] this doc­
+trine of the necessity of a quickening”); I. Dana, Report of the Committee 
+on the Production of Abortion, in 5 Transactions of the Maine Medical 
+Association 37–39 (1866); Report on Criminal Abortion, in 12 Transactions 
+of the American Medical Association 75–77 (1859); W. Guy, Principles of 
+Forensic Medicine 133–134 (1845); J. Chitty, Practical Treatise on Medical 
+Jurisprudence 438 (2d Am. ed. 1836); 1 T. Beck & J. Beck, Elements of 
+Medical Jurisprudence 293 (5th ed. 1835); 2 T. Percival, The Works, Liter­
+ary, Moral, and Medical 430 (1807); see also Keown 38–39 (collecting Eng­
+lish authorities). 
+33 See generally Dellapenna 315–319 (cataloging the development of the 
+law in the States); E. Quay, Justifable Abortion—Medical and Legal Foun­
+dations, 49 Geo. L. J. 395, 435–437, 447–520 (1961) (Quay) (same); J. Wither­
+spoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and The 
+Fourteenth Amendment, 17 St. Mary's L. J. 29, 34–36 (1985) (Wither­
+spoon) (same). 
+34 Some scholars assert that only 27 States prohibited abortion at all sta­
+ges. See, e. g., Dellapenna 315; Witherspoon 34–35, and 33, n. 15. Those 
+scholars appear to have overlooked Rhode Island, which criminalized abor­
+tion at all stages in 1861. See Acts and Resolves R. I. 1861, ch. 371, 
+§ 1, p. 133 (criminalizing the attempt to “procure the miscarriage” of “any 
+pregnant woman” or “any woman supposed by such person to be preg­
+
+Cite as: 597 U. S. 215 (2022) 
+249 
+Opinion of the Court 
+criminalized abortion at all stages, all but one did so by 1910. 
+See ibid. 
+The trend in the Territories that would become the last 13 
+States was similar: All of them criminalized abortion at all 
+stages of pregnancy between 1850 (the Kingdom of Hawaii) 
+and 1919 (New Mexico). See Appendix B, infra; see also 
+Casey, 505 U. S., at 952 (Rehnquist, C. J., concurring in judg­
+ment in part and dissenting in part); Dellapenna 317–319. 
+By the end of the 1950s, according to the Roe Court's own 
+count, statutes in all but four States and the District of 
+Columbia prohibited abortion “however and whenever per­
+formed, unless done to save or preserve the life of the 
+mother.” 410 U. S., at 139.35 
+This overwhelming consensus endured until the day Roe 
+was decided. At that time, also by the Roe Court's own 
+count, a substantial majority—30 States—still prohibited 
+abortion at all stages except to save the life of the mother. 
+nant,” without mention of quickening). The amici brief for the American 
+Historical Association asserts that only 26 States prohibited abortion at 
+all stages, but that brief incorrectly excludes West Virginia and Nebraska 
+from its count. Compare Brief for American Historical Association 27–28 
+(citing Quay), with Appendix A, infra. 
+35 The statutes of three States (Massachusetts, New Jersey, and Pennsyl­
+vania) prohibited abortions performed “unlawfully” or “without lawful 
+justifcation.” Roe, 410 U. S., at 139 (internal quotation marks omitted). 
+In Massachusetts, case law held that abortion was allowed when, according 
+to the judgment of physicians in the relevant community, the procedure 
+was necessary to preserve the woman's life or her physical or emotional 
+health. Commonwealth v. Wheeler, 315 Mass. 394, 395, 53 N. E. 2d 4, 5 
+(1944). In the other two States, however, there is no clear support in 
+case law for the proposition that abortion was lawful where the mother's 
+life was not at risk. See State v. Brandenburg, 137 N. J. L. 124, 58 A. 2d 
+709 (1948); Commonwealth v. Trombetta, 131 Pa. Super. 487, 200 A. 107 
+(1938). 
+Statutes in the two remaining jurisdictions (the District of Columbia 
+and Alabama) permitted “abortion to preserve the mother's health.” Roe, 
+410 U. S., at 139. Case law in those jurisdictions does not clarify the 
+breadth of these exceptions. 
+Page Proof Pending Publication
+
+250 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+See id., at 118, and n. 2 (listing States). And though Roe 
+discerned a “trend toward liberalization” in about “one-third 
+of the States,” those States still criminalized some abortions 
+and regulated them more stringently than Roe would allow. 
+Id., at 140, and n. 37; Tribe 2. In short, the “Court's opinion 
+in Roe itself convincingly refutes the notion that the abor­
+tion liberty is deeply rooted in the history or tradition of our 
+people.” Thornburgh v. American College of Obstetricians 
+and Gynecologists, 476 U. S. 747, 793 (1986) (White, J., 
+dissenting). 
+d 
+The inescapable conclusion is that a right to abortion is 
+not deeply rooted in the Nation's history and traditions. On 
+the contrary, an unbroken tradition of prohibiting abortion 
+on pain of criminal punishment persisted from the earliest 
+days of the common law until 1973. The Court in Roe could 
+have said of abortion exactly what Glucksberg said of as­
+sisted suicide: “Attitudes toward [abortion] have changed 
+since Bracton, but our laws have consistently condemned, 
+and continue to prohibit, [that practice].” 
+521 U. S., 
+at 719. 
+3 
+Respondents and their amici have no persuasive answer 
+to this historical evidence. 
+Neither respondents nor the Solicitor General disputes the 
+fact that by 1868 the vast majority of States criminalized 
+abortion at all stages of pregnancy. See Brief for Petition­
+ers 12–13; see also Brief for American Historical Association 
+et al. as Amici Curiae 27–28, and nn. 14–15 (conceding that 
+26 out of 37 States prohibited abortion before quickening); 
+Tr. of Oral Arg. 74–75 (respondents' counsel conceding the 
+same). Instead, respondents are forced to argue that it 
+“does [not] matter that some States prohibited abortion at 
+the time Roe was decided or when the Fourteenth Amend­
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+251 
+Opinion of the Court 
+ment was adopted.” Brief for Respondents 20. But that 
+argument fies in the face of the standard we have applied 
+in determining whether an asserted right that is nowhere 
+mentioned in the Constitution is nevertheless protected by 
+the Fourteenth Amendment. 
+Not only are respondents and their amici unable to show 
+that a constitutional right to abortion was established when 
+the Fourteenth Amendment was adopted, but they have 
+found no support for the existence of an abortion right that 
+predates the latter part of the 20th century—no state consti­
+tutional provision, no statute, no judicial decision, no learned 
+treatise. The earliest sources called to our attention are a 
+few district court and state court decisions decided shortly 
+before Roe and a small number of law review articles from 
+the same time period.36 
+A few of respondents' amici muster historical arguments, 
+but they are very weak. The Solicitor General repeats 
+Roe's claim that it is “ `doubtful' . . . `abortion was ever frmly 
+established as a common-law crime even with respect to the 
+destruction of a quick fetus.' ” Brief for United States 26 
+(quoting Roe, 410 U. S., at 136). But as we have seen, great 
+common-law authorities like Bracton, Coke, Hale, and Black­
+stone all wrote that a post-quickening abortion was a 
+crime—and a serious one at that. Moreover, Hale and 
+Blackstone (and many other authorities following them) as­
+serted that even a pre-quickening abortion was “unlawful” 
+and that, as a result, an abortionist was guilty of murder if 
+the woman died from the attempt. 
+36 See 410 U. S., at 154–155 (collecting cases decided between 1970 and 
+1973); C. Means, The Phoenix of Abortional Freedom: Is a Penumbral or 
+Ninth-Amendment Right About To Arise From the Nineteenth-Century 
+Legislative Ashes of a Fourteenth-Century Common-Law Liberty? 17 
+N. Y. L. Forum 335, 337–339 (1971) (Means II); C. Means, The Law of New 
+York Concerning Abortion and the Status of the Foetus, 1664–1968: A 
+Case of Cessation of Constitutionality, 14 N. Y. L. Forum 411 (1968) (Means 
+I); Lucas 730. 
+Page Proof Pending Publication
+
+252 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Instead of following these authorities, Roe relied largely 
+on two articles by a pro-abortion advocate who claimed that 
+Coke had intentionally misstated the common law because of 
+his strong anti-abortion views.37 
+These articles have been 
+discredited,38 and it has come to light that even members of 
+Jane Roe's legal team did not regard them as serious scholar­
+ship. An internal memorandum characterized this author's 
+work as donning “the guise of impartial scholarship while 
+advancing the proper ideological goals.” 39 
+Continued reli­
+ance on such scholarship is unsupportable. 
+The Solicitor General next suggests that history supports 
+an abortion right because the common law's failure to crimi­
+nalize abortion before quickening means that “at the Found­
+ing and for decades thereafter, women generally could termi­
+nate a pregnancy, at least in its early stages.” 40 
+Brief for 
+37 See 410 U. S., at 135, n. 26 (citing Means II); 410 U. S., at 132–133, 
+n. 21 (citing Means I). 
+38 For critiques of Means's work, see, e. g., Dellapenna 143–152, 325–331; 
+Keown 3–12; J. Finnis, “Shameless Acts” in Colorado: Abuse of Scholarship 
+in Constitutional Cases, 7 Academic Questions 10, 11–12 (1994); R. Destro, 
+Abortion and the Constitution: The Need for a Life-Protective Amend­
+ment, 63 Cal. L. Rev. 1250, 1267–1282 (1975); R. Byrn, An American Trag­
+edy: The Supreme Court on Abortion, 41 Ford. L. Rev. 807, 814–829 (1973). 
+39 Garrow 500–501, and n. 41 (internal quotation marks omitted). 
+40 In any event, Roe, Casey, and other related abortion decisions imposed 
+substantial restrictions on a State's capacity to regulate abortions per­
+formed after quickening. See, e. g., June Medical Services L. L. C. v. 
+Russo, 591 U. S. ––– (2020) (holding a law requiring doctors performing 
+abortions to secure admitting privileges to be unconstitutional); Whole 
+Woman's Health v. Hellerstedt, 579 U. S. 582 (2016) (similar); Casey, 505 
+U. S., at 846 (declaring that prohibitions on “abortion before viability” are 
+unconstitutional); id., at 887–898 (holding that a spousal notifcation provi­
+sion was unconstitutional). In addition, Doe v. Bolton, 410 U. S. 179 
+(1973), has been interpreted by some to protect a broad right to obtain an 
+abortion at any stage of pregnancy provided that a physician is willing to 
+certify that it is needed due to a woman's “emotional” needs or “familial” 
+concerns. Id., at 192. See, e. g., Women's Medical Professional Corp. v. 
+Voinovich, 130 F. 3d 187, 209 (CA6 1997), cert. denied, 523 U. S. 1036 
+(1998); but see id., at 1039 (Thomas, J., dissenting from denial of 
+certiorari). 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+253 
+Opinion of the Court 
+United States 26–27; see also Brief for Respondents 21. But 
+the insistence on quickening was not universal, see Mills, 13 
+Pa., at 633; State v. Slagle, 83 N. C. 630, 632 (1880), and re­
+gardless, the fact that many States in the late 18th and early 
+19th century did not criminalize pre-quickening abortions 
+does not mean that anyone thought the States lacked the 
+authority to do so. When legislatures began to exercise that 
+authority as the century wore on, no one, as far as we are 
+aware, argued that the laws they enacted violated a funda­
+mental right. That is not surprising since common-law au­
+thorities had repeatedly condemned abortion and described 
+it as an “unlawful” act without regard to whether it occurred 
+before or after quickening. See supra, at 242–246. 
+Another amicus brief relied upon by respondents (see 
+Brief for Respondents 21) tries to dismiss the signifcance 
+of the state criminal statutes that were in effect when the 
+Fourteenth Amendment was adopted by suggesting that 
+they were enacted for illegitimate reasons. According to 
+this account, which is based almost entirely on statements 
+made by one prominent proponent of the statutes, important 
+motives for the laws were the fear that Catholic immigrants 
+were having more babies than Protestants and that the avail­
+ability of abortion was leading White Protestant women to 
+“shir[k their] maternal duties.” Brief for American Histori­
+cal Association et al. as Amici Curiae 20. 
+Resort to this argument is a testament to the lack of any 
+real historical support for the right that Roe and Casey rec­
+ognized. This Court has long disfavored arguments based 
+on alleged legislative motives. See, e. g., Erie v. Pap's 
+A. M., 529 U. S. 277, 292 (2000) (plurality opinion); Turner 
+Broadcasting System, Inc. v. FCC, 512 U. S. 622, 652 (1994); 
+United States v. O'Brien, 391 U. S. 367, 383 (1968); Arizona 
+v. California, 283 U. S. 423, 455 (1931) (collecting cases). 
+The Court has recognized that inquiries into legislative mo­
+tives “are a hazardous matter.” O'Brien, 391 U. S., at 383. 
+Even when an argument about legislative motive is backed 
+by statements made by legislators who voted for a law, we 
+Page Proof Pending Publication
+
+254 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+have been reluctant to attribute those motives to the legisla­
+tive body as a whole. “What motivates one legislator to 
+make a speech about a statute is not necessarily what moti­
+vates scores of others to enact it.” Id., at 384. 
+Here, the argument about legislative motive is not even 
+based on statements by legislators, but on statements made 
+by a few supporters of the new 19th-century abortion laws, 
+and it is quite a leap to attribute these motives to all the 
+legislators whose votes were responsible for the enactment 
+of those laws. Recall that at the time of the adoption of the 
+Fourteenth Amendment, over three-quarters of the States 
+had adopted statutes criminalizing abortion (usually at all 
+stages of pregnancy), and that from the early 20th century 
+until the day Roe was handed down, every single State had 
+such a law on its books. Are we to believe that the hun­
+dreds of lawmakers whose votes were needed to enact these 
+laws were motivated by hostility to Catholics and women? 
+There is ample evidence that the passage of these laws 
+was instead spurred by a sincere belief that abortion kills a 
+human being. Many judicial decisions from the late 19th 
+and early 20th centuries made that point. See, e. g., Nash v. 
+Meyer, 54 Idaho 283, 301, 31 P. 2d 273, 280 (1934); State v. 
+Ausplund, 86 Ore. 121, 131–132, 167 P. 1019, 1022–1023 
+(1917); Trent v. State, 15 Ala. App. 485, 488, 73 S. 834, 836 
+(1916); State v. Miller, 90 Kan. 230, 233, 133 P. 878, 879 (1913); 
+State v. Tippie, 89 Ohio St. 35, 39–40, 105 N. E. 75, 77 (1913); 
+State v. Gedicke, 43 N. J. L. 86, 90 (1881); Dougherty v. Peo­
+ple, 1 Colo. 514, 522–523 (1873); State v. Moore, 25 Iowa 128, 
+131–132 (1868); Smith, 33 Me., at 57; see also Memphis Cen­
+ter for Reproductive Health v. Slatery, 14 F. 4th 409, 446, 
+and n. 11 (CA6 2021) (Thapar, J., concurring in judgment in 
+part and dissenting in part) (citing cases). 
+One may disagree with this belief (and our decision is not 
+based on any view about when a State should regard prena­
+tal life as having rights or legally cognizable interests), but 
+even Roe and Casey did not question the good faith of abor­
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+255 
+Opinion of the Court 
+tion opponents. See, e. g., Casey, 505 U. S., at 850 (“Men and 
+women of good conscience can disagree . . . about the pro­
+found moral and spiritual implications of terminating a preg­
+nancy, even in its earliest stage”). And we see no reason to 
+discount the signifcance of the state laws in question based 
+on these amici's suggestions about legislative motive.41 
+C 
+1 
+Instead of seriously pressing the argument that the abor­
+tion right itself has deep roots, supporters of Roe and Casey 
+contend that the abortion right is an integral part of a 
+broader entrenched right. Roe termed this a right to pri­
+vacy, 410 U. S., at 154, and Casey described it as the freedom 
+to make “intimate and personal choices” that are “central to 
+personal dignity and autonomy,” 505 U. S., at 851. Casey 
+elaborated: “At the heart of liberty is the right to defne one's 
+own concept of existence, of meaning, of the universe, and of 
+the mystery of human life.” Ibid. 
+The Court did not claim that this broadly framed right 
+is absolute, and no such claim would be plausible. While 
+individuals are certainly free to think and to say what they 
+wish about “existence,” “meaning,” the “universe,” and “the 
+41 Other amicus briefs present arguments about the motives of pro­
+ponents of liberal access to abortion. They note that some such support­
+ers have been motivated by a desire to suppress the size of the African-
+American population. See Brief for African-American Organizations 
+et al. as Amici Curiae 14–21; see also Box v. Planned Parenthood of Ind. 
+and Ky., Inc., 587 U. S. –––, ––– – ––– (2019) (Thomas, J., concurring). 
+And it is beyond dispute that Roe has had that demographic effect. A 
+highly disproportionate percentage of aborted fetuses are Black. See, 
+e. g., Dept. of Health and Human Servs., Centers for Disease Control and 
+Prevention (CDC), K. Kortsmit et al., Abortion Surveillance—United 
+States, 2019, 70 Morbidity and Mortality Report, Surveillance Summaries, 
+p. 20 (Nov. 26, 2021) (Table 6). For our part, we do not question the 
+motives of either those who have supported or those who have opposed 
+laws restricting abortions. 
+Page Proof Pending Publication
+
+256 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+mystery of human life,” they are not always free to act in 
+accordance with those thoughts. License to act on the basis 
+of such beliefs may correspond to one of the many under­
+standings of “liberty,” but it is certainly not “ordered 
+liberty.” 
+Ordered liberty sets limits and defnes the boundary be­
+tween competing interests. Roe and Casey each struck a 
+particular balance between the interests of a woman who 
+wants an abortion and the interests of what they termed 
+“potential life.” Roe, 410 U. S., at 150 (emphasis deleted); 
+Casey, 505 U. S., at 852. But the people of the various 
+States may evaluate those interests differently. In some 
+States, voters may believe that the abortion right should be 
+even more extensive than the right that Roe and Casey rec­
+ognized. Voters in other States may wish to impose tight 
+restrictions based on their belief that abortion destroys an 
+“unborn human being.” Miss. Code Ann. § 41–41–191(4)(b). 
+Our Nation's historical understanding of ordered liberty does 
+not prevent the people's elected representatives from decid­
+ing how abortion should be regulated. 
+Nor does the right to obtain an abortion have a sound basis 
+in precedent. Casey relied on cases involving the right to 
+marry a person of a different race, Loving v. Virginia, 388 
+U. S. 1 (1967); the right to marry while in prison, Turner v. 
+Safey, 482 U. S. 78 (1987); the right to obtain contraceptives, 
+Griswold v. Connecticut, 381 U. S. 479 (1965), Eisenstadt v. 
+Baird, 405 U. S. 438 (1972), Carey v. Population Services 
+Int'l, 431 U. S. 678 (1977); the right to reside with relatives, 
+Moore v. East Cleveland, 431 U. S. 494 (1977); the right to 
+make decisions about the education of one's children, Pierce 
+v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska, 
+262 U. S. 390 (1923); the right not to be sterilized without 
+consent, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 
+535 (1942); and the right in certain circumstances not to un­
+dergo involuntary surgery, forced administration of drugs, or 
+other substantially similar procedures, Winston v. Lee, 470 
+U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+257 
+Opinion of the Court 
+Rochin v. California, 342 U. S. 165 (1952). Respondents 
+and the Solicitor General also rely on post-Casey decisions 
+like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage 
+in private, consensual sexual acts), and Obergefell v. Hodges, 
+576 U. S. 644 (2015) (right to marry a person of the same 
+sex). See Brief for Respondents 18; Brief for United States 
+23–24. 
+These attempts to justify abortion through appeals to a 
+broader right to autonomy and to defne one's “concept of 
+existence” prove too much. Casey, 505 U. S., at 851. Those 
+criteria, at a high level of generality, could license fundamen­
+tal rights to illicit drug use, prostitution, and the like. See 
+Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 
+(CA9 1996) (O'Scannlain, J., dissenting from denial of rehear­
+ing en banc). None of these rights has any claim to being 
+deeply rooted in history. Id., at 1440, 1445. 
+What sharply distinguishes the abortion right from the 
+rights recognized in the cases on which Roe and Casey rely is 
+something that both those decisions acknowledged: Abortion 
+destroys what those decisions call “potential life” and what 
+the law at issue in this case regards as the life of an “unborn 
+human being.” See Roe, 410 U. S., at 159 (abortion is “in­
+herently different”); Casey, 505 U. S., at 852 (abortion is “a 
+unique act”). None of the other decisions cited by Roe and 
+Casey involved the critical moral question posed by abortion. 
+They are therefore inapposite. They do not support the 
+right to obtain an abortion, and by the same token, our con­
+clusion that the Constitution does not confer such a right 
+does not undermine them in any way. 
+2 
+In drawing this critical distinction between the abortion 
+right and other rights, it is not necessary to dispute Casey's 
+claim (which we accept for the sake of argument) that “the 
+specifc practices of States at the time of the adoption of 
+the Fourteenth Amendment” do not “mar[k] the outer limits 
+of the substantive sphere of liberty which the Fourteenth 
+Page Proof Pending Publication
+
+258 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Amendment protects.” 505 U. S., at 848. Abortion is noth­
+ing new. It has been addressed by lawmakers for centuries, 
+and the fundamental moral question that it poses is ageless. 
+Defenders of Roe and Casey do not claim that any new 
+scientifc learning calls for a different answer to the underly­
+ing moral question, but they do contend that changes in soci­
+ety require the recognition of a constitutional right to obtain 
+an abortion. Without the availability of abortion, they 
+maintain, people will be inhibited from exercising their free­
+dom to choose the types of relationships they desire, and 
+women will be unable to compete with men in the workplace 
+and in other endeavors. 
+Americans who believe that abortion should be restricted 
+press countervailing arguments about modern developments. 
+They note that attitudes about the pregnancy of unmarried 
+women have changed drastically; that federal and state laws 
+ban discrimination on the basis of pregnancy; 42 that leave for 
+pregnancy and childbirth are now guaranteed by law in 
+many cases; 43 that the costs of medical care associated with 
+pregnancy are covered by insurance or government assist­
+ance; 44 that States have increasingly adopted “safe haven” 
+42 See, e. g., Pregnancy Discrimination Act, 92 Stat. 2076, 42 U. S. C. 
+§ 2000e(k) (federal law prohibiting pregnancy discrimination in employ­
+ment); Dept. of Labor, Women's Bureau, Employment Protections for 
+Workers Who Are Pregnant or Nursing, https://www.dol.gov/agencies/wb/ 
+pregnant-nursing-employment-protections (showing that 46 States and 
+the District of Columbia have employment protections against pregnancy 
+discrimination). 
+43 See, e. g., Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C. 
+§ 2612 (federal law guaranteeing employment leave for pregnancy and 
+birth); Bureau of Labor Statistics, Access to Paid and Unpaid Family 
+Leave in 2018, https://www.bls.gov/opub/ted/2019/access-to-paid-and­
+unpaid-family-leave-in-2018.htm (showing that 89 percent of civilian work­
+ers had access to unpaid family leave in 2018). 
+44 The Affordable Care Act (ACA) requires non-grandfathered health 
+plans in the individual and small group markets to cover certain essential 
+health benefts, which include maternity and newborn care. See 124 Stat. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+259 
+Opinion of the Court 
+laws, which generally allow women to drop off babies anony­
+mously; 45 and that a woman who puts her newborn up for 
+adoption today has little reason to fear that the baby will not 
+fnd a suitable home.46 
+They also claim that many people 
+now have a new appreciation of fetal life and that when pro­
+spective parents who want to have a child view a sonogram, 
+they typically have no doubt that what they see is their 
+daughter or son. 
+Both sides make important policy arguments, but support­
+ers of Roe and Casey must show that this Court has the 
+authority to weigh those arguments and decide how abortion 
+may be regulated in the States. They have failed to make 
+that showing, and we thus return the power to weigh those 
+arguments to the people and their elected representatives. 
+163, 42 U. S. C. § 18022(b)(1)(D). The ACA also prohibits annual limits, 
+see § 300gg–11, and limits annual cost-sharing obligations on such benefts, 
+§ 18022(c). State Medicaid plans must provide coverage for pregnancy-
+related services—including, but not limited to, prenatal care, delivery, and 
+postpartum care—as well as services for other conditions that might com­
+plicate the pregnancy. 42 CFR §§ 440.210(a)(2)(i)–(ii) (2020). State Med­
+icaid plans are also prohibited from imposing deductions, cost-sharing, 
+or similar charges for pregnancy-related services for pregnant women. 
+42 U. S. C. §§1396o(a)(2)(B), (b)(2)(B). 
+45 Since Casey, all 50 States and the District of Columbia have enacted 
+such laws. Dept. of Health and Human Servs., Children's Bureau, Infant 
+Safe Haven Laws 1–2 (2016), https://www.childwelfare.gov/pubPDFs/ 
+safehaven.pdf (noting that safe haven laws began in Texas in 1999). 
+46 See, e. g., CDC, Adoption Experiences of Women and Men and Demand 
+for Children To Adopt by Women 18–44 Years of Age in the United States 
+16 (Aug. 2008) (“[N]early 1 million women were seeking to adopt children 
+in 2002 (i.e., they were in demand for a child), whereas the domestic supply 
+of infants relinquished at birth or within the frst month of life and avail­
+able to be adopted had become virtually nonexistent”); CDC, National 
+Center for Health Statistics, Adoption and Nonbiological Parenting, 
+https://www.cdc.gov/nchs/nsfg/key_statistics/a-keystat.htm#adoption 
+(showing that approximately 3.1 million women between the ages of 18– 
+49 had ever “[t]aken steps to adopt a child” based on data collected from 
+2015–2019). 
+
+260 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+D 
+1 
+The dissent is very candid that it cannot show that a con­
+stitutional right to abortion has any foundation, let alone a 
+“ `deeply rooted' ” one, “ `in this Nation's history and tradi­
+tion.' ” Glucksberg, 521 U. S., at 721; see post, at 370–372 
+(joint opinion of Breyer, Sotomayor, and Kagan, JJ.). 
+The dissent does not identify any pre-Roe authority that 
+supports such a right—no state constitutional provision or 
+statute, no federal or state judicial precedent, not even a 
+scholarly treatise. Compare post, at 370–372, n. 2, with 
+supra, at 241, and n. 23. Nor does the dissent dispute the 
+fact that abortion was illegal at common law at least after 
+quickening; that the 19th century saw a trend toward crimi­
+nalization of pre-quickening abortions; that by 1868, a 
+supermajority of States (at least 26 of 37) had enacted stat­
+utes criminalizing abortion at all stages of pregnancy; that 
+by the late 1950s at least 46 States prohibited abortion “how­
+ever and whenever performed” except if necessary to save 
+“the life of the mother,” Roe, 410 U. S., at 139; and that when 
+Roe was decided in 1973 similar statutes were still in effect 
+in 30 States. Compare post, at 370–372, nn. 2–3, with supra, 
+at 248–250 and nn. 33–34.47 
+The dissent's failure to engage with this long tradition is 
+devastating to its position. We have held that the “estab­
+lished method of substantive-due-process analysis” requires 
+that an unenumerated right be “ `deeply rooted in this Na­
+tion's history and tradition' ” before it can be recognized as 
+a component of the “liberty” protected in the Due Process 
+Clause. Glucksberg, 521 U. S., at 721; cf. Timbs, 586 U. S., 
+at –––. But despite the dissent's professed fdelity to stare 
+47 By way of contrast, at the time Griswold v. Connecticut, 381 U. S. 479 
+(1965), was decided, the Connecticut statute at issue was an extreme out­
+lier. See Brief for Planned Parenthood Federation of America, Inc. as 
+Amicus Curiae in Griswold v. Connecticut, O. T. 1964, No. 496, p. 27. 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+261 
+Opinion of the Court 
+decisis, it fails to seriously engage with that important prec­
+edent—which it cannot possibly satisfy. 
+The dissent attempts to obscure this failure by misrepre­
+senting our application of Glucksberg. The dissent suggests 
+that we have focused only on “the legal status of abortion in 
+the 19th century,” post, at 384, but our review of this Na­
+tion's tradition extends well past that period. As explained, 
+for more than a century after 1868—including “another half-
+century” after women gained the constitutional right to vote 
+in 1920, see post, at 373; Amdt. 19—it was frmly established 
+that laws prohibiting abortion like the Texas law at issue in 
+Roe were permissible exercises of state regulatory authority. 
+And today, another half century later, more than half of the 
+States have asked us to overrule Roe and Casey. The dis­
+sent cannot establish that a right to abortion has ever been 
+part of this Nation's tradition. 
+2 
+Because the dissent cannot argue that the abortion right 
+is rooted in this Nation's history and tradition, it contends 
+that the “constitutional tradition” is “not captured whole at 
+a single moment,” and that its “meaning gains content from 
+the long sweep of our history and from successive judicial 
+precedents.” Post, at 376 (internal quotation marks omit­
+ted). This vague formulation imposes no clear restraints on 
+what Justice White called the “exercise of raw judicial 
+power,” Roe, 410 U. S., at 222 (dissenting opinion), and while 
+the dissent claims that its standard “does not mean anything 
+goes,” post, at 375, any real restraints are hard to discern. 
+The largely limitless reach of the dissenters' standard is 
+illustrated by the way they apply it here. First, if the “long 
+sweep of history” imposes any restraint on the recognition 
+of unenumerated rights, then Roe was surely wrong, since 
+abortion was never allowed (except to save the life of the 
+mother) in a majority of States for over 100 years before 
+that decision was handed down. Second, it is impossible to 
+Page Proof Pending Publication
+
+262 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+defend Roe based on prior precedent because all of the prece­
+dents Roe cited, including Griswold and Eisenstadt, were 
+critically different for a reason that we have explained: None 
+of those cases involved the destruction of what Roe called 
+“potential life.” See supra, at 257. 
+So without support in history or relevant precedent, Roe's 
+reasoning cannot be defended even under the dissent's pro­
+posed test, and the dissent is forced to rely solely on the fact 
+that a constitutional right to abortion was recognized in Roe 
+and later decisions that accepted Roe's interpretation. 
+Under the doctrine of stare decisis, those precedents are 
+entitled to careful and respectful consideration, and we en­
+gage in that analysis below. But as the Court has reiterated 
+time and time again, adherence to precedent is not “ `an inex­
+orable command.' ” Kimble v. Marvel Entertainment, LLC, 
+576 U. S. 446, 455 (2015). There are occasions when past 
+decisions should be overruled, and as we will explain, this is 
+one of them. 
+3 
+The most striking feature of the dissent is the absence of 
+any serious discussion of the legitimacy of the States' inter­
+est in protecting fetal life. This is evident in the analogy 
+that the dissent draws between the abortion right and the 
+rights recognized in Griswold (contraception), Eisenstadt 
+(same), Lawrence (sexual conduct with member of the same 
+sex), and Obergefell (same-sex marriage). Perhaps this is 
+designed to stoke unfounded fear that our decision will im­
+peril those other rights, but the dissent's analogy is objec­
+tionable for a more important reason: what it reveals about 
+the dissent's views on the protection of what Roe called “po­
+tential life.” The exercise of the rights at issue in Griswold, 
+Eisenstadt, Lawrence, and Obergefell does not destroy a 
+“potential life,” but an abortion has that effect. So if the 
+rights at issue in those cases are fundamentally the same as 
+the right recognized in Roe and Casey, the implication is clear: 
+The Constitution does not permit the States to regard the de­
+struction of a “potential life” as a matter of any signifcance. 
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+263 
+Opinion of the Court 
+That view is evident throughout the dissent. The dissent 
+has much to say about the effects of pregnancy on women, 
+the burdens of motherhood, and the diffculties faced by poor 
+women. These are important concerns. However, the dis­
+sent evinces no similar regard for a State's interest in pro­
+tecting prenatal life. The dissent repeatedly praises the 
+“balance,” post, at 360, 364, 366, 368, 370, that the viability 
+line strikes between a woman's liberty interest and the 
+State's interest in prenatal life. But for reasons we discuss 
+later, see infra, at 274–279, 280, and given in the opinion of 
+The Chief Justice, post, at 349–352 (opinion concurring in 
+judgment), the viability line makes no sense. It was not 
+adequately justifed in Roe, and the dissent does not even 
+try to defend it today. Nor does it identify any other point 
+in a pregnancy after which a State is permitted to prohibit 
+the destruction of a fetus. 
+Our opinion is not based on any view about if and when 
+prenatal life is entitled to any of the rights enjoyed after 
+birth. The dissent, by contrast, would impose on the people 
+a particular theory about when the rights of personhood 
+begin. According to the dissent, the Constitution requires 
+the States to regard a fetus as lacking even the most basic 
+human right—to live—at least until an arbitrary point in a 
+pregnancy has passed. Nothing in the Constitution or in 
+our Nation's legal traditions authorizes the Court to adopt 
+that “ `theory of life.' ” Post, at 366. 
+III 
+We next consider whether the doctrine of stare decisis 
+counsels continued acceptance of Roe and Casey. Stare deci­
+sis plays an important role in our case law, and we have 
+explained that it serves many valuable ends. It protects the 
+interests of those who have taken action in reliance on a past 
+decision. See Casey, 505 U. S., at 856 (joint opinion); see 
+also Payne v. Tennessee, 501 U. S. 808, 828 (1991). It “re­
+duces incentives for challenging settled precedents, saving 
+parties and courts the expense of endless relitigation.” 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+264 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Kimble, 576 U. S., at 455. It fosters “evenhanded” decision-
+making by requiring that like cases be decided in a like man­
+ner. Payne, 501 U. S., at 827. It “contributes to the actual 
+and perceived integrity of the judicial process.” Ibid. And 
+it restrains judicial hubris and reminds us to respect the 
+judgment of those who have grappled with important ques­
+tions in the past. “Precedent is a way of accumulating and 
+passing down the learning of past generations, a font of es­
+tablished wisdom richer than what can be found in any single 
+judge or panel of judges.” N. Gorsuch, A Republic, If You 
+Can Keep It 217 (2019). 
+We have long recognized, however, that stare decisis is 
+“not an inexorable command,” Pearson v. Callahan, 555 U. S. 
+223, 233 (2009) (internal quotation marks omitted), and it “is 
+at its weakest when we interpret the Constitution,” Agostini 
+v. Felton, 521 U. S. 203, 235 (1997). It has been said that it 
+is sometimes more important that an issue “ `be settled than 
+that it be settled right.' ” Kimble, 576 U. S., at 455 (quoting 
+Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) 
+(Brandeis, J., dissenting)). But when it comes to the inter­
+pretation of the Constitution—the “great charter of our lib­
+erties,” which was meant “to endure through a long lapse of 
+ages,” Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816) 
+(opinion for the Court by Story, J.)—we place a high value 
+on having the matter “settled right.” In addition, when one 
+of our constitutional decisions goes astray, the country is usu­
+ally stuck with the bad decision unless we correct our own 
+mistake. An erroneous constitutional decision can be fxed 
+by amending the Constitution, but our Constitution is no­
+toriously hard to amend. See Art. V; Kimble, 576 U. S., at 
+456. Therefore, in appropriate circumstances we must be 
+willing to reconsider and, if necessary, overrule constitu­
+tional decisions. 
+Some of our most important constitutional decisions have 
+overruled prior precedents. We mention three. In Brown 
+v. Board of Education, 347 U. S. 483 (1954), the Court repu­
+
+Cite as: 597 U. S. 215 (2022) 
+265 
+Opinion of the Court 
+diated the “separate but equal” doctrine, which had allowed 
+States to maintain racially segregated schools and other 
+facilities. Id., at 488 (internal quotation marks omitted). 
+In so doing, the Court overruled the infamous decision in 
+Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other 
+Supreme Court precedents that had applied the separate­
+but-equal rule. See Brown, 347 U. S., at 491. 
+In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), 
+the Court overruled Adkins v. Children's Hospital of D. C., 
+261 U. S. 525 (1923), which had held that a law setting mini­
+mum wages for women violated the “liberty” protected by 
+the Fifth Amendment's Due Process Clause. Id., at 545. 
+West Coast Hotel signaled the demise of an entire line of 
+important precedents that had protected an individual lib­
+erty right against state and federal health and welfare legis­
+lation. See Lochner, 198 U. S. 45 (holding invalid a law set­
+ting maximum working hours); Coppage v. Kansas, 236 U. S. 
+1 (1915) (holding invalid a law banning contracts forbidding 
+employees to join a union); Jay Burns Baking Co. v. Bryan, 
+264 U. S. 504 (1924) (holding invalid laws fxing the weight 
+of loaves of bread). 
+Finally, in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 
+624 (1943), after the lapse of only three years, the Court 
+overruled Minersville School Dist. v. Gobitis, 310 U. S. 586 
+(1940), and held that public school students could not be com­
+pelled to salute the fag in violation of their sincere beliefs. 
+Barnette stands out because nothing had changed during the 
+intervening period other than the Court's belated recogni­
+tion that its earlier decision had been seriously wrong. 
+On many other occasions, this Court has overruled impor­
+tant constitutional decisions. (We include a partial list in 
+the footnote that follows.48) Without these decisions, Amer­
+48 See, e. g., Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex 
+marriage), overruling Baker v. Nelson, 409 U. S. 810 (1972); Citizens 
+United v. Federal Election Comm'n, 558 U. S. 310 (2010) (right to engage 
+in campaign-related speech), overruling Austin v. Michigan Chamber of 
+Page Proof Pending Publication
+
+266 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+ican constitutional law as we know it would be unrecogniz­
+able, and this would be a different country. 
+No Justice of this Court has ever argued that the Court 
+should never overrule a constitutional decision, but overrul-
+Commerce, 494 U. S. 652 (1990), and partially overruling McConnell v. 
+Federal Election Comm'n, 540 U. S. 93 (2003); Montejo v. Louisiana, 556 
+U. S. 778 (2009) (Sixth Amendment right to counsel), overruling Michigan 
+v. Jackson, 475 U. S. 625 (1986); Crawford v. Washington, 541 U. S. 36 
+(2004) (Sixth Amendment right to confront witnesses), overruling Ohio v. 
+Roberts, 448 U. S. 56 (1980); Lawrence v. Texas, 539 U. S. 558 (2003) (right 
+to engage in consensual, same-sex intimacy in one's home), overruling 
+Bowers v. Hardwick, 478 U. S. 186 (1986); Ring v. Arizona, 536 U. S. 584 
+(2002) (Sixth Amendment right to a jury trial in capital prosecutions), 
+overruling Walton v. Arizona, 497 U. S. 639 (1990); Agostini v. Felton, 521 
+U. S. 203 (1997) (evaluating whether government aid violates the Estab­
+lishment Clause), overruling Aguilar v. Felton, 473 U. S. 402 (1985), and 
+School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985); Seminole Tribe 
+of Fla. v. Florida, 517 U. S. 44 (1996) (lack of congressional power under 
+the Indian Commerce Clause to abrogate States' Eleventh Amendment 
+immunity), overruling Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989); 
+Payne v. Tennessee, 501 U. S. 808 (1991) (the Eighth Amendment does not 
+erect a per se bar to the admission of victim impact evidence during the 
+penalty phase of a capital trial), overruling Booth v. Maryland, 482 U. S. 
+496 (1987), and South Carolina v. Gathers, 490 U. S. 805 (1989); Batson v. 
+Kentucky, 476 U. S. 79 (1986) (the Equal Protection Clause guarantees the 
+defendant that the State will not exclude members of his race from the 
+jury venire on account of race), overruling Swain v. Alabama, 380 U. S. 
+202 (1965); Garcia v. San Antonio Metropolitan Transit Authority, 469 
+U. S. 528, 530 (1985) (rejecting the principle that the Commerce Clause 
+does not empower Congress to enforce requirements, such as minimum 
+wage laws, against the States “ `in areas of traditional governmental func­
+tions' ”), overruling National League of Cities v. Usery, 426 U. S. 833 
+(1976); Illinois v. Gates, 462 U. S. 213 (1983) (the Fourth Amendment re­
+quires a totality of the circumstances approach for determining whether 
+an informant's tip establishes probable cause), overruling Aguilar v. 
+Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 
+(1969); United States v. Scott, 437 U. S. 82 (1978) (the Double Jeopardy 
+Clause does not apply to Government appeals from orders granting de­
+fense motions to terminate a trial before verdict), overruling United 
+States v. Jenkins, 420 U. S. 358 (1975); Craig v. Boren, 429 U. S. 190 (1976) 
+(gender-based classifcations are subject to intermediate scrutiny under 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+267 
+Opinion of the Court 
+ing a precedent is a serious matter. It is not a step that 
+should be taken lightly. Our cases have attempted to pro­
+vide a framework for deciding when a precedent should be 
+overruled, and they have identifed factors that should be 
+the Equal Protection Clause), overruling Goesaert v. Cleary, 335 U. S. 464 
+(1948); Taylor v. Louisiana, 419 U. S. 522 (1975) (jury system which oper­
+ates to exclude women from jury service violates the defendant's Sixth 
+and Fourteenth Amendment right to an impartial jury), overruling Hoyt 
+v. Florida, 368 U. S. 57 (1961); Brandenburg v. Ohio, 395 U. S. 444 (1969) 
+(per curiam) (the mere advocacy of violence is protected under the First 
+Amendment unless it is directed to incite or produce imminent lawless 
+action), overruling Whitney v. California, 274 U. S. 357 (1927); Katz v. 
+United States, 389 U. S. 347, 351 (1967) (Fourth Amendment “protects peo­
+ple, not places,” and extends to what a person “seeks to preserve as pri­
+vate”), overruling Olmstead v. United States, 277 U. S. 438 (1928), and 
+Goldman v. United States, 316 U. S. 129 (1942); Miranda v. Arizona, 384 
+U. S. 436 (1966) (procedural safeguards to protect the Fifth Amendment 
+privilege against self-incrimination), overruling Crooker v. California, 357 
+U. S. 433 (1958), and Cicenia v. Lagay, 357 U. S. 504 (1958); Malloy v. 
+Hogan, 378 U. S. 1 (1964) (the Fifth Amendment privilege against self-
+incrimination is also protected by the Fourteenth Amendment against 
+abridgment by the States), overruling Twining v. New Jersey, 211 U. S. 78 
+(1908), and Adamson v. California, 332 U. S. 46 (1947); Wesberry v. Sand­
+ers, 376 U. S. 1, 7–8 (1964) (congressional districts should be apportioned 
+so that “as nearly as is practicable one man's vote in a congressional elec­
+tion is to be worth as much as another's”), overruling in effect Colegrove 
+v. Green, 328 U. S. 549 (1946); Gideon v. Wainwright, 372 U. S. 335 (1963) 
+(right to counsel for indigent defendant in a criminal prosecution in state 
+court under the Sixth and Fourteenth Amendments), overruling Betts v. 
+Brady, 316 U. S. 455 (1942); Baker v. Carr, 369 U. S. 186 (1962) (federal 
+courts have jurisdiction to consider constitutional challenges to state re­
+districting plans), effectively overruling in part Colegrove, 328 U. S. 549; 
+Mapp v. Ohio, 367 U. S. 643 (1961) (the exclusionary rule regarding the 
+inadmissibility of evidence obtained in violation of the Fourth Amendment 
+applies to the States), overruling Wolf v. Colorado, 338 U. S. 25 (1949); 
+Smith v. Allwright, 321 U. S. 649 (1944) (racial restrictions on the right 
+to vote in primary elections violates the Equal Protection Clause of the 
+Fourteenth Amendment), overruling Grovey v. Townsend, 295 U. S. 45 
+(1935); United States v. Darby, 312 U. S. 100 (1941) (congressional power to 
+regulate employment conditions under the Commerce Clause), overruling 
+Hammer v. Dagenhart, 247 U. S. 251 (1918); Erie R. Co. v. Tompkins, 304 
+
+Page Proof Pending Publication
+268 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+considered in making such a decision. 
+Janus v. State, 
+County, and Municipal Employees, 585 U. S. –––, ––– – ––– 
+(2018); Ramos v. Louisiana, 590 U. S. –––, ––– – ––– (2020) 
+(Kavanaugh, J., concurring in part). 
+In this case, fve factors weigh strongly in favor of overrul­
+ing Roe and Casey: the nature of their error, the quality of 
+their reasoning, the “workability” of the rules they imposed 
+on the country, their disruptive effect on other areas of the 
+law, and the absence of concrete reliance. 
+A 
+The nature of the Court's error. An erroneous interpre­
+tation of the Constitution is always important, but some are 
+more damaging than others. 
+The infamous decision in Plessy v. Ferguson, was one such 
+decision. It betrayed our commitment to “equality before 
+the law.” 163 U. S., at 562 (Harlan, J., dissenting). It was 
+“egregiously wrong” on the day it was decided, see Ramos, 
+590 U. S., at ––– (opinion of Kavanaugh, J.), and as the Solic­
+itor General agreed at oral argument, it should have been 
+overruled at the earliest opportunity, see Tr. of Oral Arg. 
+92–93. 
+Roe was also egregiously wrong and deeply damaging. 
+For reasons already explained, Roe's constitutional analysis 
+was far outside the bounds of any reasonable interpretation 
+of the various constitutional provisions to which it vaguely 
+pointed. 
+Roe was on a collision course with the Constitution from 
+the day it was decided, Casey perpetuated its errors, and 
+those errors do not concern some arcane corner of the law of 
+little importance to the American people. Rather, wielding 
+nothing but “raw judicial power,” Roe, 410 U. S., at 222 
+U. S. 64 (1938) (Congress does not have the power to declare substantive 
+rules of common law; a federal court sitting in diversity jurisdiction must 
+apply the substantive state law), overruling Swift v. Tyson, 16 Pet. 1 
+(1842). 
+
+Cite as: 597 U. S. 215 (2022) 
+269 
+Opinion of the Court 
+(White, J., dissenting), the Court usurped the power to ad­
+dress a question of profound moral and social importance 
+that the Constitution unequivocally leaves for the people. 
+Casey described itself as calling both sides of the national 
+controversy to resolve their debate, but in doing so, Casey 
+necessarily declared a winning side. Those on the losing 
+side—those who sought to advance the State's interest in 
+fetal life—could no longer seek to persuade their elected rep­
+resentatives to adopt policies consistent with their views. 
+The Court short-circuited the democratic process by closing 
+it to the large number of Americans who dissented in any 
+respect from Roe.
+“Roe fanned into life an issue that has 
+infamed our national politics in general, and has obscured 
+with its smoke the selection of Justices to this Court in par­
+ticular, ever since.” Casey, 505 U. S., at 995–996 (opinion of 
+Scalia, J.). Together, Roe and Casey represent an error that 
+cannot be allowed to stand. 
+As the Court's landmark decision in West Coast Hotel illus­
+trates, the Court has previously overruled decisions that 
+wrongly removed an issue from the people and the demo­
+cratic process. As Justice White later explained, “decisions 
+that fnd in the Constitution principles or values that cannot 
+fairly be read into that document usurp the people's author­
+ity, for such decisions represent choices that the people have 
+never made and that they cannot disavow through corrective 
+legislation. For this reason, it is essential that this Court 
+maintain the power to restore authority to its proper pos­
+sessors by correcting constitutional decisions that, on re­
+consideration, are found to be mistaken.” Thornburgh, 476 
+U. S., at 787 (dissenting opinion). 
+B 
+The quality of the reasoning. Under our precedents, the 
+quality of the reasoning in a prior case has an important 
+bearing on whether it should be reconsidered. See Janus, 
+585 U. S., at –––; Ramos, 590 U. S., at ––– – ––– (opinion of 
+Page Proof Pending Publication
+
+270 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+Kavanaugh, J.). In Part II, supra, we explained why Roe 
+was incorrectly decided, but that decision was more than just 
+wrong. It stood on exceptionally weak grounds. 
+Roe found that the Constitution implicitly conferred a 
+right to obtain an abortion, but it failed to ground its decision 
+in text, history, or precedent. It relied on an erroneous his­
+torical narrative; it devoted great attention to and presum­
+ably relied on matters that have no bearing on the meaning 
+of the Constitution; it disregarded the fundamental differ­
+ence between the precedents on which it relied and the ques­
+tion before the Court; it concocted an elaborate set of rules, 
+with different restrictions for each trimester of pregnancy, 
+but it did not explain how this veritable code could be teased 
+out of anything in the Constitution, the history of abortion 
+laws, prior precedent, or any other cited source; and its most 
+important rule (that States cannot protect fetal life prior to 
+“viability”) was never raised by any party and has never 
+been plausibly explained. Roe's reasoning quickly drew 
+scathing scholarly criticism, even from supporters of broad 
+access to abortion. 
+The Casey plurality, while reaffrming Roe's central hold­
+ing, pointedly refrained from endorsing most of its reasoning. 
+It revised the textual basis for the abortion right, silently 
+abandoned Roe's erroneous historical narrative, and jetti­
+soned the trimester framework. 
+But it replaced that 
+scheme with an arbitrary “undue burden” test and relied on 
+an exceptional version of stare decisis that, as explained 
+below, this Court had never before applied and has never 
+invoked since. 
+1 
+a 
+The weaknesses in Roe's reasoning are well-known. 
+Without any grounding in the constitutional text, history, or 
+precedent, it imposed on the entire country a detailed set of 
+rules much like those that one might expect to fnd in a stat­
+Page Proof Pending Publication
+
+Cite as: 597 U. S. 215 (2022) 
+271 
+Opinion of the Court 
+ute or regulation. See 410 U. S., at 163–164. Dividing 
+pregnancy into three trimesters, the Court imposed special 
+rules for each. During the frst trimester, the Court an­
+nounced, “the abortion decision and its effectuation must be 
+left to the medical judgment of the pregnant woman's at­
+tending physician.” Id., at 164. After that point, a State's 
+interest in regulating abortion for the sake of a woman's 
+health became compelling, and accordingly, a State could 
+“regulate the abortion procedure in ways that are reasonably 
+related to maternal health.” Ibid. Finally, in “the stage 
+subsequent to viability,” which in 1973 roughly coincided 
+with the beginning of the third trimester, the State's interest 
+in “the potentiality of human life” became compelling, and 
+therefore a State could “regulate, and even proscribe, abor­
+tion except where it is necessary, in appropriate medical 
+judgment, for the preservation of the life or health of the 
+mother.” Id., at 164–165. 
+This elaborate scheme was the Court's own brainchild. 
+Neither party advocated the trimester framework; nor did 
+either party or any amicus argue that “viability” should 
+mark the point at which the scope of the abortion right and 
+a State's regulatory authority should be substantially trans­
+formed. See Brief for Appellant and Brief for Appellee in 
+Roe v. Wade, O. T. 1972, No. 70–18; see also C. Forsythe, 
+Abuse of Discretion: The Inside Story of Roe v. Wade 127, 
+141 (2012). 
+b 
+Not only did this scheme resemble the work of a legisla­
+ture, but the Court made little effort to explain how these 
+rules could be deduced from any of the sources on which 
+constitutional decisions are usually based. We have already 
+discussed Roe's treatment of constitutional text, and the 
+opinion failed to show that history, precedent, or any other 
+cited source supported its scheme. 
+Roe featured a lengthy survey of history, but much of its 
+discussion was irrelevant, and the Court made no effort to 
+Page Proof Pending Publication
+
+272 
+DOBBS v. JACKSON WOMEN'S HEALTH ORGANIZATION 
+Opinion of the Court 
+explain why it was included. For example, multiple para­
+graphs were devoted to an account of the views and practices 
+of ancient civilizations where infanticide was widely ac­
+cepted. See 410 U. S., at 130–132 (discussing ancient Greek 
+and Roman practices).49 
+When it came to the most impor­
+tant historical fact—how the States regulated abortion when 
+the Fourteenth Amendment was adopted—the Court said al­
+most nothing. It allowed that States had tightened their 
+abortion laws “in the middle and late 19th century,” id., at 
+139, but it implied that these laws might have been enacted 
+not to protect fetal life but to further “a Victorian social con­
+cern” about “illicit sexual conduct,” id., at 148. 
+Roe's failure even to note the overwhelming consensus of 
+state laws in effect in 1868 is striking, and what it said about 
+the common law was simply wrong. Relying on two dis­
+credited articles by an abortion advocate, the Court errone­
+ously suggested—contrary to Bracton, Coke, Hale, Black­
+stone, and a wealth of other authority—that the common law 
+had probably never really treated post-quickening abortion 
+as a crime. See id., at 136 (“[I]t now appear[s] doubtful that 
+abortion was ever frmly established as a common-law crime 
+even with respect to the destruction of a quick fetus”). This 
+erroneous understanding appears to have played an impor­
+tant part in the Court's thinking because the opinion cited 
+“the lenity of the common law” as one of the four factors that 
+informed its decision. Id., at 165. 
+After surveying history, the opinion spent many para­
+graphs conducting the sort of fact-fnding that might be 
+undertaken by a legislative committee. This included a 
+lengthy account of the “position of the American Medical As­
+sociation” and “[t]he position of the American Public Health 
+49 See, e. g., C. Patterson, “Not Worth the Rearing”: The Causes of Infant 
+Exposure in Ancient Greece, 115 Transactions Am. Philological Assn. 103, 
+111–123 (1985); A. Cameron, The Exposure of Children and Greek Ethics, 
+46 Classical Rev. 105–108 (1932); H. Bennett, The Exposure of Infants in 
+Ancient Rome, 18 Classical J. 341–351 (1923); W. Harris, Child-Exposure 
+in the Roman Empire, 84 J. Roman Studies 1 (1994). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 597 U. S. 215 (2022) 
+273 
+Opinion of the Court 
+Association,” as well as the vote by the American Bar Asso­
+ciation's House of Delegates in February 1972 on proposed 
+abortion legislation. Id., at 141, 144, 146 (emphasis deleted). 
+Also noted were a British judicial decision handed down in 
+1939 and a new British abortion law enacted in 1967. Id., 
+at 137–138. The Court did not explain why these sources 
+shed light on the meaning of the Constitution, and not one 
+of them adopted or advocated anything like the scheme that 
+Roe imposed on the country. 
+Finally, after all this, the Court turned to precedent. Cit­
+ing a broad array of cases, the Court found support for a 
+constitutional “right of personal privacy,” id., at 152, but it 
+confated two very different meanings of the term: the right 
+to shield information from disclosure and the right to make 
+and implement important personal decisions without govern­
+mental interference. See Whalen v. Roe, 429 U. S. 589, 599– 
+600 (1977). Only the cases involving this second sense of the 
+term could have any possible relevance to the abortion issue, 
+and some of the cases in that category involved personal de­
+cisions that were obviously very, very far afield. 
+See 
+Pierce, 268 U. S. 510 (right to send children to religious 
+school); Meyer, 262 U. S. 390 (right to have children receive 
+German language instruction). 
+What remained was a handful of cases having something 
+to do with marriage, Loving, 388 U. S. 1 (right to marry a 
+person of a different race), or procreation, Skinner, 316 U. S. 
+535 (right not to be sterilized); Griswold, 381 U. S. 479 (right 
+of married persons to obtain contraceptives); Eisenstadt, 405 
+U. S. 438 (same, for unmarried persons). But none of these 
+decisions involved what is distinctive about abortion: its ef­
+fect on what Roe termed “potential life.” 
+When the Court summarized the basis for the scheme it 
+imposed on the country, it asserted that its rules were “con­
+sistent with” the following: (1) “the relative weights of the 
+respective interests involved,” (2) “the lessons and examples 
+of medical and legal history,” (3) “the lenity of the common 
+law,” and (4) “the demands of the profound problems of the 
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+RETRACTION NOTICE: Model Kolaborasi Antar-lembaga dan Reformasi Tata Kelola Keamanan Maritim Dalam Menjaga Kedaulatan Indonesia Pasca Reformasi
+
+RETRACTION TO: Sudarto Sudarto (2024). Model Kolaborasi Antar-lembaga dan Reformasi Tata Kelola Keamanan Maritim Dalam Menjaga Kedaulatan Indonesia Pasca Reformasi. Jurnal USM Law Review Vol 7, No 3, pp. 1260-1271, December 2024, DOI: 10.26623/julr.v7i3.8912. Following a rigorous, carefully concerned, and considered review of the article published in Jurnal USM Law Review to article entitled “Model Kolaborasi Antar-lembaga dan Reformasi Tata Kelola Keamanan Maritim Dalam Menjaga Kedaulatan Indonesia Pasca Reformasi” Jurnal USM Law Review Vol 7, No 3, pp. 1260-1271, December 2024, DOI: 10.26623/julr.v7i3.8912. Sudarto Sudarto. The article contains redundant material and copyright infringement. Following a report from the original author and an investigation conducted by the editor, it was found that the article bears similarities to a previously published article in the NUSANTARA: Jurnal Ilmu Pengetahuan Sosial Vol. 8 No. 5 (2021) DOI: 10.31604/jips.v8i6.2021.1406-1428, Ministrate Jurnal Birokrasi & Pemerintahan Vol 3. No. 1 (2021) DOI: https://doi.org/10.15575/jbpd.v3i3, Jurnal Kebijakan Sosial Ekonomi Kelautan dan Perikanan Vol. 13 No. 2 Jurnal Kebijakan Sosial Ekonomi Kelautan dan Perikanan Vol. 13 No 2 (2023) http://ejournal-balitbang.kkp.go.id/index.php/jkse/article/view/12542
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+The Urgency of Guidance in Correctional Institutions
+
+This study aims to determine and analyze the implementation of prisoner coaching. This research uses normative and empirical research. Normative and empirical variety research is used in this study. Normative research examines laws, ideas, and conceptions related to the problem being investigated. The field as the primary data source includes findings from interviews and observations. Which is supported by a statutory approach and an analytical approach. The results of the study indicate that the implementation of coaching has not been effective, when viewed from the understanding of the existing guidance in the detention center, there are still obstacles in the implementation of coaching, the number of inmates who are not following the capacity (over-capacity), lack of facilities and infrastructure for coaching and health services.
+
+KRTHA BHAYANGKARA, Vol. 16, No. 2 (2022), pp. 397-414 
+ISSN 1978-8991 (print) | ISSN 2721-5784 (online) 
+Available online at: http://ejurnal.ubharajaya.ac.id/index.php/KRTHA 
+ 
+ 
+The Urgency of Guidance in Correctional Institutions 
+ 
+ 
+Muhammad Akbar Fhad Syahril1*, Ibrahim Rusli2, Ardyanti Aris3 
+1,3Faculty of Law, Institut Ilmu Sosial dan Bisnis Andi Sapada 
+2Barru Class II B State Detention Center 
+Email: akbar9.a9@gmail.com 
+*Corresponding author 
+ 
+ 
+Article info  
+Received: Sep 1, 2022  
+Revised: Oct 13, 2022 
+Accepted: Oct 27, 2022 
+DOI: https://doi.org/10.31599/krtha.v16i2.1521 
+ 
+Keywords : 
+Coaching, Inmates, Correctional 
+ 
+ 
+Abstract   : 
+This study aims to determine and analyze the implementation of prisoner coaching. This research 
+uses normative and empirical research. Normative and empirical variety research is used in this 
+study. Normative research examines laws, ideas, and conceptions related to the problem being 
+investigated. The field as the primary data source includes findings from interviews and 
+observations. Which is supported by a statutory approach and an analytical approach. The results 
+of the study indicate that the implementation of coaching has not been effective, when viewed from 
+the understanding of the existing guidance in the detention center, there are still obstacles in the 
+implementation of coaching, the number of inmates who are not following the capacity (over-
+capacity), lack of facilities and infrastructure for coaching and health services.   
+ 
+ 
+ 
+ 
+Kata kunci : Pembinaan, Narapidana, Pemasyarakatan. 
+ 
+ 
+Abstrak      : Penelitian ini bertujuan untuk mengetahui dan menganalisis pelaksanaan 
+pembinaan narapidana. Penelitian ini menggunakan penelitian normatif dan 
+empiris. Penelitian ragam normatif dan empiris digunakan dalam penelitian ini. 
+Penelitian normatif mengkaji hukum, gagasan, dan konsepsi yang berkaitan dengan 
+masalah yang sedang diselidiki. Lapangan sebagai sumber data primer, meliputi 
+temuan dari wawancara dan observasi. Yang didukung dengan pendekatan 
+perundang-undangan, dan penedekatan analsisi. Hasil penelitian menunjukkan 
+bahwa pelaksanaan pembinaan belum berjalan efektif, jika dilihat dari pemahaman 
+terhadap pembinaan yang ada di Rutan, masih terdapat kendala dalam pelaksanaan 
+pembinaan, banyaknya warga binaan yang tidak sesuai dengan daya tampung (over 
+capacity), kurangnya sarana dan prasarana pembinaan dan pelayanan kesehatan. 
+ 
+ 
+ 
+ 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+398 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+I. INTRODUCTION 
+Indonesia is a vast country and is a state of Law. National development in the outline of 
+the state policy covers all aspects of the life of the community, nation, and State intending 
+to realize a just society.1 Law is the result of social interaction with people's lives. The 
+development of Law is a mirror of community development. 
+The sentencing of perpetrators of criminal acts is not merely a form of retaliation 
+for the crimes committed but is given guidance. The concept of coaching adopted by 
+Indonesia is how to integrate criminals into society. This guidance is carried out because 
+it is an Indonesian society with rights that must be protected. These rights are given by 
+providing physical and mental advice so that they can become fully human and be 
+accepted again when they return to the community.2 
+The Minister of Justice Sahardjo first perfected the concept of the prison in 1963. 
+The task of a prison officer is not only to carry out sentences, but a much more difficult 
+task is to return people convicted of a crime to society, following the main purpose of 
+establishing the Correctional Institution as stated in Article 2 in Law no. 12 of 1995 
+concerning Corrections, namely forming prisoners so that they become fully human 
+beings who realize their mistakes, improve themselves, and do not repeat criminal acts so 
+that they can be accepted by the community and become good responsible and useful 
+citizens.3 
+Philosophically, the penitentiary is a criminal system that has far left the 
+philosophy of retributive deterrence, and rationalization. In other words, punishment is 
+not intended to torture or make suffering a form of retaliation, nor does it consider the 
+convict to be someone who lacks socialization.4 
+A person sentenced to prison will be placed in the Correctional Institution. In the 
+Correctional Institution, guidance will be carried out as regulated in the Correctional Law 
+and Government Regulation Number 31 of 1999. Government Regulation Number 31 
+of 1999, in Article 2, confirms that: 
+1. The coaching and mentoring program includes coaching and mentoring activities 
+for personality and independence; 
+2. Development program for correctional students and students; and 
+3. Mentoring program.5 
+ 
+1 Ibrahim Rusli. 2021. Analisis Yuridis Terhadap Pembinaan Narapidana Terkait Dengan Undang-Undang 
+No.12 Tahun 1995 Tentang Pemasyarakatan Pada Rumah Tahanan Negara Kelas II B Barru. Thesis has not been 
+published. Parepare: Amsir Parepare College of Law (STIH). 
+2 Ibrahim Rusli. 2021. Analisis Yuridis Terhadap Pembinaan Narapidana Terkait Dengan Undang-Undang 
+No.12 Tahun 1995 Tentang Pemasyarakatan Pada Rumah Tahanan Negara Kelas II B Barru. Thesis not published. 
+Parepare: Amsir Parepare College of Law (STIH). 
+3 Eryansyah, A. M. (2022). Hakikat Sistem Pemasyarakatan Sebagai Upaya Pemulihan Terhadap 
+Warga Binaan Pemasyarakatan= The Nature of the Correctional System as a Recovery Effort for the 
+Correctional Assisted Citizens (Doctoral dissertation, Universitas Hasanuddin). 
+4 Aprilianto, D. (2015). Program Pembinaan Di Lapas Kelas II B Lamongan Perspektif Filsafat 
+Hukum Pidana Islam. Maraji: Jurnal Ilmu Keislaman, 2(1), 67-91. 
+5 Vide Pasal 2 Peraturan Pemerintah No. 31 Tahun 1999 Tentang. Pembinaan dan Pembimbingan 
+Warga Binaan Pemasyarakatan 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+399
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+The three provisions stipulated in Article 2 of Government Regulation no. 31 of 
+1999 are a pattern of guidance for prisoners that must be carried out in correctional 
+institutions throughout Indonesia. However, what is expected by the Law regarding the 
+design of fostering prisoners in Correctional Institutions does not run according to the 
+provisions; there are many factors that cause this to happen, such as overcapacity, which 
+is the main problem.6 
+Based on the system in the correctional database, it is recorded that the number 
+of prisoners and convicts occurs every year; although the number of Technical 
+Implementation Units (UPT) and their capacity has also increased, of course, they cannot 
+stem the surge in prisoners and prisons. Population. It was recorded that in November 
+2020, there were 525 UPTs with a capacity of 135,406 people, and the number of 
+prisoners and detainees reached 211,051 people, resulting in overcapacity reaching 56%. 
+It was recorded in the Barru Rutan Class II B; the number of residents in November 2020 
+reached 194 people with a capacity of 112 people. 
+The overcapacity that has occurred has made the training of prisoners ineffective, 
+so currently, the activity of prisoners is carried out in prisons and detention centres. 
+Prisons in Law no. 8 of 1981 concerning the Criminal Procedure Code (KUHAP) is a 
+places where suspects or defendants are detained during the process of investigation, 
+prosecution, and examination in courts in Indonesia.7 Currently, many detentions centres 
+have become places for inmates to be trained because of excess capacity in prisons. 
+Reducing the overcapacity of prisoners/conditional release for prisoners who have met 
+the requirements is one solution or way to reduce overcapacity in detention 
+centers/prisons. 
+The issue of parole is only part of the problem of prisoners' rights, which until 
+now has not been fully implemented. Many more prisoners' rights must be considered 
+and protected, especially after serving a sentence, so the community and the surrounding 
+environment can accept those prisoners again. 
+ 
+II. RESEARCH METHODS 
+It is a research method that, in this case, combines elements of normative Law which are 
+then supported by the addition of data or empirical elements.   Normative-empirical legal 
+research is legal research that focuses attention on legal issues as a matter of the existence 
+of a gap between imperatives, namely orders and prohibitions (das sollen) contained in 
+various laws and regulations, both types of laws and regulations which are affirmed in 
+article 7 and article 7 8 Law Number 12 of 2011 concerning the Establishment of 
+Legislation. 
+ 
+ 
+6 Apsari, D. S., Trwati, A., & Mukharom, M. (2019). Pelaksanaan Sistem Pemasyarakatan Terhadap 
+Narapidana Di Lembaga Pemasyarakatan Perempuan Klas Ia Semarang. Humani (Hukum Dan Masyarakat 
+Madani), 5(3), 26–37. 
+7 Vide Kitab Undang Undang Hukum Acara Pidana (KUHAP) 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+400 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+III. RESULT AND DISCUSSION 
+The Effectiveness of the Implementation of Prisoner Development in the 
+Detention Center Class II B Barru 
+Before discussing the effectiveness of implementing Prisoners' Guidance in 
+Detention Centers, it is necessary first to know what Rutan is. A State Detention House 
+is where suspects are detained or detained during the process of investigation, prosecution 
+and examination at court hearings.8 Article 1 paragraph (2) Decree of the Minister of 
+Justice and Human Rights of the Republic of Indonesia No. M.01.PL.01.01 of 2003 
+concerning the Correctional Technical Implementing Unit Building Pattern.9 
+Article I paragraph (13) of Regulation No. 35 of 2018 concerning the 
+Revitalization of Correctional Services states that the State Detention Center, after this 
+referred to as Rutan, is an institution or place to carry out the function of serving 
+prisoners.10 
+The definition of coaching according to article 1 paragraph (1) Government 
+Regulation of the Republic of Indonesia no. 31 of 1999 concerning the Guidance and 
+Guidance of Correctional Assisted Citizens is an activity to improve the quality of 
+devotion to God Almighty, intellectual, attitude, and behaviour, professional, physical and 
+spiritual health of prisoners and correctional students.11 Convict coaching is a series of 
+processes based on the correctional system to shape prisoners into better individuals.12 
+Prison development is carried out based on the correctional system regulated in Law 
+Number 12 of 1995 concerning Corrections and Government Regulation of the Republic 
+of Indonesia Number 31 of 1999 concerning Guidance and Guidance of Convicts, 
+Ministerial Regulation Number 03 of 2018 concerning Granting Remissions, 
+Assimilation, Leave to Visit Family, Leave Before Release, Conditional Release, and 
+Conditional Leave, Ministerial Regulation Number 18 of 2019 concerning Amendments 
+to Ministerial Regulation 03 of 2018, Regulation of the Minister of Law and Human Rights 
+of the Republic of Indonesia 35 of 2018 concerning Revitalization of Correctional 
+Institutions, as well as Decree of the Minister of Law and Human Rights Republic of 
+Indonesia Number M.HH-19.PK.01.04.04 of 2020 concerning the Liberation and 
+Liberation of Prisoners and Children Through Assimilation and Integration in the 
+Context of Prevention and Control of the Spread of Covid-19. 
+The concept of fostering inmates in the detention centre refers to the rules and 
+laws and the implementation procedures that apply in prisons. In the Author's opinion, 
+this means that there is no notable difference between Rutan and Lapas regarding the 
+ 
+8 Purlamtasari, D. A. (2020). Tinjauan Pengelolaan Sampah Di Rumah Tahanan Negara Kelas IIB 
+Kabupaten Purbalingga Tahun 2020. 
+9 Vide Pasal 1 ayat (2) Keputusan Menteri Kehakiman dan HAM No. M.01.PL.01.01 Tahun 2003 
+tentang Pola Bangunan Unit Pelaksana Teknis Pemasyarakatan. 
+10 Vide Pasal I Ayat (13) Peraturan Menteri No. 35 Tahun 2018 Tentang Revitalisasi 
+Penyelenggaraan Pemasyarakatan 
+11Vide Pasal 1 Ayat (1) Peraturan Pemerintah No. 31 Tahun 1999 Tentang Pembinaan dan 
+Pembimbingan Warga Binaan 
+12Sinabang, A. (2021). Pembinaan dan Pemberian Hak-Hak Warga Binaan di Lapas. Nusantara: 
+Jurnal Ilmu Pengetahuan Sosial, 8(2), 293-302. 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+401
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+guidance provided.13 
+As stated in Law Number 12 of 1995 concerning Corrections, the Correctional 
+System focuses on efforts to care for, develop, educate and guide inmates to restore the 
+unity of the basic relationship between the individual inmates and the community.14 
+The implementation of corrective development is based on the principles of the 
+penitentiary system to care for, foster, educate and guide inmates to become good and 
+useful citizens. Inmates in the correctional system have the right to receive spiritual and 
+physical guidance, their right to carry out their worship, to communicate with outside 
+parties, both their families and other parties, to obtain information, either through print 
+or electronic media, to receive proper education, and so on. 
+These rights are not obtained automatically, but with certain conditions or criteria, 
+such as to get remission, assimilation must meet certain requirements. For the rights of 
+the inmates as stated in Article 14 paragraph (1) and paragraph (2), Article 22 paragraph 
+(2), Article 29 paragraph (2), and Article 36 paragraph (2) of Law Number 12 of 1995 
+concerning Corrections If it can be implemented properly, then for each class of inmates, 
+different terms and procedures are determined because each group has additional rights, 
+such as criminals who do not have the right to receive wages or premiums, State children 
+do not have the right to receive wages or salaries. Remission and Civilian Children do not 
+receive stipends, remissions, parole, or leave before being released.15 
+When a prisoner undergoes a sentence handed down by the court, his rights as a 
+citizen will be limited. Although the convict loses his freedom, prisoners' rights are still 
+protected in the Indonesian penitentiary system. Following Government Regulation of 
+the Republic of Indonesia No. 31 of 1999 concerning the Guidance and Guidance of 
+Correctional Inmates to carry out these coaching, there are three stages of the coaching 
+process, namely: 
+1. Early stage. The convict starts when the person concerned is a prisoner up to 1/3 
+of the criminal period. At this stage, the correctional observer team conducts 
+observations, introductions, and environmental research for a maximum of 1 
+month. Planning and implementation of personality and spiritual development 
+programs. Assessment of the implementation of the early-stage development 
+program. 
+2. The first advanced stage. Suppose the process of fostering a prisoner has lasted 
+for one-third of his actual criminal period, and according to the opinion of the 
+Correctional Observer Team, sufficient progress has been made, among others. 
+In that case, he shows conviction, improvement, and discipline and obeys the rules 
+and regulations in force at the Detention Center/ Penitentiary. He is given more 
+freedom by imposing a medium security level of supervision. The second, 
+advanced stage If the coaching process for a prisoner has been going on for half 
+ 
+13Rasad, F. (2021). Perubahan Pidana Mati Menjadi Pidana Penjara Melalui Pemidanaan Secara 
+Alternatif. Jurnal HAM, 12, 141-163. 
+14 Vide Undang-Undang Nomor 12 Tahun 1995 Tentang Pemasyarakatan 
+15Vide Pasal 14 ayat (1) dan ayat (2), Pasal 22 ayat (2), Pasal 29 ayat (2), dan Pasal 36 ayat (2) 
+Undang-undang Nomor 12 Tahun 1995 tentang Pemasyarakatan 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+402 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+of his actual criminal period, and according to the opinion of the Correctional 
+Observer Team, considerable progress has been made both physically and 
+mentally. Physically as well as mentally and in terms of skills, the forum for the 
+development process is expanded by allowing the inmate concerned to assimilate 
+with the community outside the Rutan/Penitentiary. 
+3. Final Stage. Suppose the coaching process for a prisoner has been ongoing for 
+two-thirds of his substantial criminal period or at least nine months. In that case, 
+the prisoner can be released on parole, which is determined by the Correctional 
+Observer Team.16 
+Matters regarding the terms and procedures for granting remission, assimilation, 
+leave to visit family, leave before release, conditional leave, and parole are regulated in the 
+Regulation of the Minister of Law and Human Rights of the Republic of Indonesia No. 
+03 of 2018 and underwent changes to the Regulation of the Minister of Law and Human 
+Rights No. 18 of 2019.17 
+Based on the Regulation of the Minister of Law and Human Rights of the 
+Republic of Indonesia Number 6 of 2013 concerning Procedures for Correctional 
+Institutions and State Detention Centers (Rutan), it is explained that the State Detention 
+Center, hereinafter referred to as Rutan, is a place where suspects or defendants are 
+detained during the process of investigation, prosecution and examination. In court.18 
+Based on the placement of detainees in the Rutan/Rutan Branch or Lapas/Prison 
+Branch in a certain place, it is a series of sentencing processes that begins with the 
+investigation process, then continues with the prosecution and examination of cases in 
+the Court Session and the implementation of court decisions at the Correctional 
+Institution. 
+1. Scope of Coaching 
+Guidance based on Government Regulation of the Republic of Indonesia No. 31 
+of 1999 concerning the Guidance and Guidance of Correctional Inmates in Article 2 
+states that: 
+a. The coaching and mentoring program includes coaching and mentoring activities 
+for personality and independence; 
+b. Coaching Program for Prisoners and Correctional Students.19 
+Further details regarding the development of prisoners are regulated in the Decree 
+of the Minister of Justice of the Republic of Indonesia Number: M. 02.-PK.04.10 of 1990 
+concerning the Pattern of Guidance for Prisoners/Detainees of the Minister of Justice of 
+ 
+16Vide Peraturan Pemerintah No. 31 Tahun 1999 tentang Pembinaan dan Pembimbingan Warga 
+Binaan pemasyarakatan 
+17Vide Peraturan Menteri Hukum dan Hak Asasi Manusia Republik Indonesia No. 03 Tahun 2018 
+dan mengalami perubahan pada Peraturan Menteri Hukum dan Hak Asasi Manusia No. 18 Tahun 2019. 
+18Vide pada Peraturan Menteri Hukum dan Hak Asasi Manusia No. 6 Tahun 2013 Tentang Tata 
+tertib Lembaga Pemasyarakatan dan Rumah Tahanan Negara (Rutan) 
+19Vide Pasal 2 Pemerintah No. 31 Tahun 1999 tentang Pembinaan dan Pembimbingan Warga 
+Binaan Pemasyarakatan 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+403
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+the Republic of Indonesia, which is regulated in Chapter VII concerning the 
+Implementation of Guidance as follows "the functions and duties of fostering early-stage 
+of inmates (prisoners, state children, correctional clients, and prisoners) are carried out in 
+an integrated manner with the aim that after they have finished serving their sentence, 
+their guidance and guidance can become good citizens of the community.20 
+As servants of the state and public servants, they are obliged to live and practice 
+the tasks of correctional development with full responsibility. Officers must have 
+professional abilities and moral integration to carry out effective, effective, and effective 
+corrective development activities. 
+To be able to base the prisoner development program, the State puts it in Article 
+5 of Law no. 12 of 1995 concerning corrections that the correctional development system 
+is carried out based on the principle of: 
+a. Shelter 
+b. Equality of treatment and service 
+c. Education 
+d. Guidance on respect for human dignity 
+e. Losing freedom is the only suffering and 
+f. Guaranteed right to keep in touch with family and certain people.21 
+As well as in the context of fostering prisoners in prisons, classification is carried 
+out in accordance with the provisions of Article 12 paragraph (1) No. 12 of 1995 
+concerning Corrections, namely: 
+a. Age 
+b. Gender 
+c. Length of the sentence imposed 
+d. Type of crime and 
+e. Other criteria are in accordance with the needs or development of coaching.22 
+And furthermore, the development of female prisoners in prisons is carried out 
+in women's prisons in accordance with Article 12 paragraph (2) No. 12 of 1995 
+concerning Corrections. The revitalization of the correctional administration regarding 
+the development of prisoners is further regulated in Article 8 paragraph (1) of Ministerial 
+Regulation no. 35 of 2018, which states that the Revitalization of Convict Guidance, as 
+referred to in Article 3 letter b, is carried out to improve the quality of the Convict 
+Guidance function in encouraging behavioural changes and reducing the risk level of 
+Prisoners. 
+And then in article 8 paragraph (2) Ministerial Regulation no. 35 of 2018, which 
+ 
+20Vide Keputusan Menteri Kehakiman Republik Indonesia Nomor: M. 02.-PK.04.10 Tahun 1990 
+Tentang Pola Pembinaan Narapidana/Tahanan Menteri Kehakiman Republik Indonesia 
+21 Vide Pasal 5 Undang-Undang No. 12 Tahun 1995 Tentang Pemasyarakatan 
+22 Vide Pasal 12 ayat (1) Undang-Undang No. 12 Tahun 1995 Tentang Pemasyarakatan 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+404 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+states that the Revitalization of Convict Guidance, as referred to in paragraph (1), is held 
+in: 
+a. Lapas Super Maximum Security 
+b. Lapas Maximum Security 
+c. Lapas Medium Security; or 
+d. Lapas minimum security23 
+ 
+2. Stages of Inmate Development 
+The stages of implementing prisoner development are further regulated in 
+Chapter II of Government Regulation of the Republic of Indonesia No. 31 of 1999 
+concerning Guidance and Guidance of Correctional Inmates, starting from Article 7 to 
+Article 12. 
+In improving the implementation of prisoner development in prisons, following 
+the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia 
+No. 35 of 2018 concerning the Revitalization of Correctional Administration, it is stated 
+that the implementation of prisoner development starts from Article 9 to Article 27. 
+In researching the development of prisoners, the first thing to discuss is the 
+legislation that underlies the development of prisoners. In this case, in addition to 
+referring to Law Number 12 of 1995, where the purpose of coaching is to form 
+Correctional Inmates to become fully human, realize their mistakes, improve themselves, 
+and not repeat their crimes so that they can be accepted again by the community.24 To 
+achieve this goal, Prisoners/Inmates are required to participate in all the coaching 
+programs that have been set at the Class II B Barru Rutan from the time they enter until 
+I release them from the State Detention Center because their criminal period has ended. 
+Currently, several circulars are needed it is real, or the confirmation of the 
+previous brochure in the Correctional Institution in the guidance refers to the pattern of 
+guidance/detainees, which the Ministry of Justice issued in 1990. Although in practice, it 
+is not yet fully implemented. Conducted. 
+ 
+Opinions and Responses to Interviews of Inmates at The Barru Class II B State 
+Detention Center 
+Opinions and responses from prisoners regarding implementing guidance at the Class II 
+B Barru State Detention Center are deemed necessary to know so that the implementation 
+of prisoner coaching can be further improved or maintained. 
+ 
+ 
+23Vide Pasal 8 ayat (1) Peraturan Menteri Hukum dan Hak Asasi Manusia No. 35 Tahun 2018 
+Tentang Revitalisasi Penyelenggaraan Pemasyarakatan 
+24 Nurfianti, N. (2017). Pembinaan Terhadap Narapidana Pelaku Pencabulan Anak di Bawah Umur di 
+Rutan Kelas II B Kabupaten Sinjai (Doctoral dissertation, Univeritas Islam Negeri Alauddin Makassar). 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+405
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+Table 1. Inmates' Opinions on Coaching 
+NO 
+Opinions on Coaching 
+Percentage 
+1 
+In Retaliation 
+18,75 % 
+2 
+As Coaching 
+81,25 % 
+3 
+Don't Know 
+0 % 
+Overall Number 
+100 % 
+Source: Interview Results25 
+From this data, there are still prisoners who think implementing guidance in 
+detention centres tends to retaliate. This should not have happened because, since the 
+issuance of the Correctional Law, the orientation of prisoner development must have 
+been changed to a more humane direction. However, from the data, it is clear that most 
+inmates consider the coaching process in the detention centre to be correct. This is 
+reflected in the purpose of the penitentiary system, which is an order regarding the 
+direction and boundaries as well as the method of fostering correctional inmates based 
+on Pancasila which is carried out in an integrated manner between the coaches, those who 
+are fostered, and the community to improve the quality of correctional inmates so that 
+they are aware of their mistakes, improve themselves, and do not repeat criminal acts so 
+that they can be accepted again by the community, can play an active role in the 
+development and can live normally as good and responsible citizens. 
+Rutan as well as correctional institutions have a function in the process of 
+fostering prisoners. There are many types of coaching or activities carried out in prisons 
+to meet prisoners' physical and spiritual needs, commonly called correctional inmates. 
+Table 2. Religious Formation 
+NO 
+Religious Formation 
+Percentage 
+1 
+Effective 
+81,25 % 
+2 
+Quite Effective 
+18,75 % 
+3 
+Ineffective 
+0 % 
+Overall Number 
+16 Person 
+Source: Results from the interview26 
+From the table data above, the process of coaching in the religious field is quite 
+effective in clearing the thoughts, hearts, and behaviour of prisoners; this can be seen in 
+81.25% of prisoners who are satisfied with religious guidance. And as many as 18.75% of 
+inmates are not confident with the process of spiritual development in the detention 
+centre. This must be a benchmark for correctional personnel to continue to improve in 
+spiritual growth so that prisoners or correctional inmates are assisted in adapting to the 
+outside community to become useful individuals for families, communities, nations, and 
+ 
+25 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+26 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+406 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+the State. 
+Table 3. Skills Coaching 
+NO 
+Skills Coaching 
+Persentase 
+1 
+Effective 
+87,5 % 
+2 
+Quite Effective 
+12,5 % 
+3 
+Ineffective 
+0 % 
+Overall Number 
+100 % 
+Source: Results from the interview27 
+From the data table above, they classified the skill development process as 
+effective, with 87.5%. And 12.5% feel that skills development in the detention centre is 
+quite effective; this is due to the limited area of the detention centre to exercise and try 
+other skills and the lack of coaches in the routine that can take care of all the inmates. 
+Class II B Barru Rutan carries out skills development programs such as 
+counselling guidance, making entrepreneurial crafts, and washing vehicles outside the 
+walls, carried out by assimilation. As stated by the Head of Detention Service Subsidy in 
+an Interview with the Author: 
+They carried out skills activities every day. For example, those who want to make 
+crafts can go to the room that has been provided—many of their fine arts. 
+However, implementing these activities still encounters several obstacles, such as 
+inadequate facilities and infrastructure.28 
+Table 4 Quality of Coaching 
+NO 
+Fostering Correctional Efforts 
+Fostering Correctional Efforts 
+1 
+Effective 
+75 % 
+2 
+Quite Effective 
+25 % 
+3 
+Ineffective 
+0 % 
+Overall Number 
+100 % 
+Source: Results from the interview29 
+From the table data above, the quality that is being developed is already 75% less 
+effective, and this happens because there is still violence in the routine against both those 
+carried out by officers and themselves. 
+Mastery of the coaching model is very important to be reached by officers in the 
+field. Coaching, which is divided into 3 (three) stages, namely the initial stage, the 
+advanced stage, and the final stage, is a system that must be implemented effectively in 
+the field. Guidance in detention centres or prisons must be in the form of protection that 
+ 
+27 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+28 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+29 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+407
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+does not emphasize suppression (retaliation) in order to realize correctional expectations 
+to return the prisoners who were lost to find a straight and right way during society. 
+The development at the Class II B Barru State Detention Center, especially related 
+to Law No. 12 concerning Corrections, has been going well and as it should. However, in 
+its implementation, there are still obstacles that result in little feeling dissatisfied with the 
+existing coaching process. The Guidance of Prisoners at the Class II B Barru State 
+Detention Center is guided by Law no. 12 of 1995 concerning Corrections and other 
+regulations, namely Government Regulation no. 31 of 1999 concerning the Guidance and 
+Guidance of Correctional Inmates, Government Regulation no. 32 of 1999 concerning 
+the Terms and Procedures for the Implementation of the Rights of Correctional Inmates, 
+Government Regulation no. 28 of 2006 concerning Amendments to Government 
+Regulation no. 32 of 1999 concerning the Terms and Procedures for the Implementation 
+of the Rights of Correctional Inmates, Government Regulation No. 99 of 2012 
+concerning the Second Amendment to Government Regulation 32 of 1999 concerning 
+the Terms and Procedures for the Implementation of the Rights of Correctional Inmates, 
+and Government Regulation No. 35 of 2018 concerning Revitalization of Correctional 
+Services. 
+ 
+Obstacles to Handling Inmate Development in Class II B Barru Detention Center  
+Based on the results of the research the Author did at the Class II B Barru Rutan in 
+conducting guidance to prisoners, there were several factors that influenced the 
+implementation of coaching for prisoners, including: 
+1. The Law itself 
+It can be seen from the existence of laws and regulations, which are made by the 
+government with the expectation of positive impacts that will be obtained from law 
+enforcement. Executed based on the laws and regulations to achieve effective goals. 
+However, in line with the length of the criminal period served by the inmate, it will have 
+an impact on the mental State of the inmate, such as the incidence of depression in 
+inmates, which is influenced by the length of the sentence and the length of time the 
+inmate spends in prison and loses a job which is a source of income. The longer the 
+criminal period, the longer the prisoner languishes in prison and loses his job or source 
+of income, and the easier it is for the inmates to experience depression and feel low self-
+esteem. 
+Therefore, this is where the task of the correctional institution is to eliminate 
+depression experienced by inmates by replacing it with life motivation so that after being 
+released from prison, they will start a new life and become useful human beings for 
+society. 
+With the criminal period served by prisoners, it will make a very long time to 
+reflect on all the mistakes that have been made while outside the prison. Over time, the 
+criminal will become a better person than before. For example, an inmate who has never 
+stepped foot into a place of worship while outside the detention centre will be inversely 
+proportional to when he is in the detention centre who is treated to spiritual development, 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+408 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+which little by little will strengthen the inmate's faith and help him find peace in his life.  
+2. Quantity of Officers 
+Officers have a very important role in coaching; the thing that becomes the basis 
+for influencing officers to act is of course, the level of knowledge, especially about the 
+coaching of prisoners themselves, so that officers are required to be able to understand 
+the problems that arise for the smooth process of the coaching. The Class II B Barru 
+Rutan has several occupants of, 196 people, where the total officers are 40 officers, and 
+each guarding officer is 4 guards; this indicates that the number of officers guarding the 
+Class II B Barru State Detention Center is still not ideal, with a total of This is what makes 
+the efforts to guard prisons and detention centres considered not optimal. 
+Table 6 Correctional officers' Treatment of Inmates 
+NO Correctional Officer Treatment 
+Percentage 
+1 
+Effective 
+87,5 % 
+2 
+Less Effective 
+12,5 % 
+3 
+Ineffective 
+0 % 
+Overall Number 
+100 % 
+Source: Results from the interview30 
+From the table above, the treatment of correctional officers against prisoners as 
+law enforcers is considered effective, but there is still dissatisfaction from prisoners 
+against correctional officers. The personal attitude of correctional officers who still apply 
+the old prison system triggers this by prioritizing violence that has long been replaced 
+with a correctional system that prioritizes the coaching process. 
+3. Facilities and Infrastructure 
+The pattern and layout of the building as stipulated in the Decree of the Minister 
+of Justice of the Republic of Indonesia No. M.O1.PL.01.01 of 1985, dated April 11, 1985, 
+concerning the Building Pattern of the State Correctional Institution and Detention 
+Center needs to be realized because the pattern and layout of the building an important 
+factor to support the implementation of human rights for prisoners with guidance 
+following the purpose of disciplinary. 
+Several factors that influence determining the location of the Class II B Barru 
+Detention Center are: 
+a) Condition and Layout of Rutan Class II B Barru Building. 
+This building is on the outskirts of town. In terms of transportation and 
+communication, there are no problems. However, because the Class II B Barru Detention 
+Center has residents not only from the surrounding area but also from various corners of 
+Indonesia, especially South Sulawesi Province, it will certainly make it easier for families 
+visiting their families. 
+ 
+30 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+409
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+Currently, the spatial condition of the Class II B Barru Rutan, especially the living 
+room, is maintained and pays attention to human dignity and the rights of prisoners as 
+human beings so that their basic needs are kept. And the Class II B Barru Rutan has been 
+designed concerning privacy and support for rehabilitation programs and integration into 
+society in the future. 
+b) Facilities needed by Rutan Class II B Barru 
+Table 7 Facilities and Infrastructure 
+NO 
+Facilities and Infrastructure 
+Percentage 
+1 
+Effective 
+56,25 % 
+2 
+Less Effective 
+43,75 % 
+3 
+Ineffective 
+0 % 
+Overall Number 
+100 % 
+Source: Results from the interview31 
+The table above illustrates that the facilities and infrastructure in the Class II B 
+Barru Rutan have not been adequate in the process of fostering prisoners, although some 
+prisoners are satisfied with the existing facilities and infrastructure. Based on interviews 
+conducted by the Author with the Head of Rutan Class II B Barru, he stated that: 
+Lack of equipment or facilities, both in quantity and quality, is one of the 
+inhibiting factors for the smooth process of coaching prisoners. Class II B Barru 
+Rutan has fulfilled the provisions regarding facilities such as spiritual and 
+entertainment facilities. Still, some facilities are unsuitable for use, thus reducing 
+the quality of the coaching facilities themselves.32 
+Several facilities contribute to the implementation of prisoner training, namely; 
+1) Administration room; The place where all administrative process activities are 
+held. Rutan Class II B Barru has one administrative room that is quite adequate. 
+2) Reception room; The place where the reception for prisoners and prisoners who 
+have just arrived at the Barru Class II B detention center is held. Newly arrived 
+inmates and prisoners were listed and given uniform clothing, which was then put 
+in an orientation cell for some time to determine the next coaching program. We 
+equipped this reception room with facilities for administrative purposes such as 
+registration, shooting, finger marks and matters related to the admission process. 
+Barru's Class II B detention centre also has an admission room for prisoners and 
+prisoners who have just arrived. 
+3) Inmates' Living Room 
+ 
+ 
+ 
+31 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+32 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+410 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+Table 8 Room Situation 
+NO 
+Room Situation 
+Percentage 
+1 
+Adequate 
+25 % 
+2 
+Less (Almost) Adequate 
+75 % 
+3 
+Inadequate 
+0 % 
+Overall Number 
+100 % 
+Source: Results from the interview33 
+From the data above, the major obstacle in fostering prisoners is inadequate 
+residential rooms. This can cause discomfort for inmates. The situation is overcapacity in 
+the detention centre causes this to happen; the capacity of the occupancy rooms is only 8 
+inmates, but with the current situation, it can reach 20 people in one occupancy room. 
+They still need supervision in living rooms with medium security standards, but 
+not too tight. The equipment in the living room is the same as the equipment in the living 
+room, with maximum security, namely a bed, wardrobe, and lighting. Close supervision is 
+still required inside the maximum-security living room because prisoners are considered 
+dangerous. 
+Regarding the living room for prisoners, it is still between medium security and 
+maximum security because supervision is still carried out strictly, and the officer still holds 
+the room key. The classification of institutions with ultimate, medium and minimum 
+deposits no longer follows the needs of the correctional system. 
+The basis for this classification is only seen from the security approach, as stated 
+in Article 13 of the Criminal Code. It is better to think about the condition of the building 
+of an open prison with a minimum standard of security or the need for semi-institutional 
+facilities that are well coordinated within the framework of integrating prisoners into 
+society. Although this, of course, requires careful planning and preparation, it also requires 
+the involvement of an independent institution supported by qualified officers. 
+4) Dining room; All the inmates ate in their respective cell rooms because the 
+agency's officers delivered the food directly. In this case, prisoners are entitled to 
+quality food and sufficient quantity adjusted to health standards. 
+5) Discipline Cells; Cells place prisoners who violate the rules or discipline of the 
+rules that have been determined. The Class II B Barru detention centre has a 
+disciplinary cell for prisoners who violate the laws. However, this disciplinary cell 
+is not used because if a violation occurs, it will impose a warning, except for 
+serious violations. 
+In connection with this, as stated by the Narcotics prisoner (48 years old) that, 
+“Convicts who violate will be given sanctions ranging from reprimand to being 
+transferred to an isolation room or disciplinary punishment. Depending on the violation 
+ 
+33 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+411
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+committed.”34 
+An Inmate of Theft (32 Years Old) said that, “Gradual sanctions are given, 
+ranging from reprimands to severe sanctions, namely the revocation of rights, depending 
+on the type of violation committed.”35 
+6) Orientation Cells; To place new prisoners in temporary residences, where they are 
+studied, to determine the next program. The Class II B Barru detention centre has 
+one orientation room; this cell follows its function of giving rights to prisoners. 
+7) Visiting room; A place where family gatherings are held. Class II B Barru Rutan 
+has a visiting room that is united with the coaching administration room. It's just 
+that in its implementation for family visits at this time, even though it has a clear 
+time limit, sometimes violations still occur. This usually happens to prisoners with 
+upper social status and also to visitors who are already familiar with the officers; 
+the period can be extended. 
+8) Coaching room; In the framework of the training of prisoners. Then rooms are 
+needed that function to support the realization of the guidance.  
+9) Education Room; In accommodating educational and scientific activities, under 
+the leadership of the Regional Office of the Ministry of Education and Culture. 
+10) Library Building; Although the library building in this institution is quite adequate, 
+the condition of the books is partly very outdated, with the contents that are not 
+actual/not updated. This certainly affects the process of fostering child prisoners 
+because children must get true outside-world information, so they do not miss 
+news even though they are in the institution. 
+11) Auditorium Room; This room is housed as a multipurpose place, for example, for 
+holding ceremonies, lectures, art, etc. Currently, the multipurpose room is 
+sufficiently functioning as it should be, for instance, with more effectiveness of 
+counselling. 
+12) Places of Worship; The Class II B Barru detention centre has one prayer room. 
+This room serves to accommodate religious activities for inmates. Physically, this 
+building is quite adequate, but it needs to be improved qualitatively and 
+quantitatively regarding religious programs. 
+13) Clinic; Currently, Rutan Class II B Barru only has a clinic for medical services for 
+inmates who need examination and treatment. 
+14) Kitchen; Rutan Class II B Barru has adequate kitchen space for cooking to meet 
+the food needs of the inmates of the Class II B Barru detention centre. Inmates 
+employed as chefs carry out cooking activities every 3 times a day. 
+15) Workspace Bimker (Workshop): At the Class II B Detention Center, Barru has a 
+workroom / Biker, which functions as a space for non-formal education. This 
+room serves to practice painting, music, electronic skills, screen printing, sewing, 
+ 
+34 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+35 Results of Interviews with Prisoners at the Class State Detention Center II B Barru 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+412 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+and plywood crafts. However, something did not fully implement some activities 
+due to a shortage of teachers in work guidance.  
+4. Overlapping Implementations 
+The Class II B Barru State Detention Center's coaching program is diverse. But 
+in reality, not all of these programs can be implemented as desired. The number of 
+coaching personnel, facilities, funds, and the number of prisoners as inmates influences 
+this. The facts on the ground show that the implementation of coaching seems to overlap, 
+and is forced to keep going. This has an impact on the results of coaching that are less 
+than optimal because, according to data obtained by researchers, one of the WBP has not 
+fully explored the coaching that is occupied and has to move to another coaching. 
+In implementing the role of Correctional Institutions in carrying out the process 
+of fostering prisoners, there are factors that influence both supporting and inhibiting 
+factors. Factors that support the detention centre's efforts in carrying out the prisoner 
+development process are the number of prisoners who do not exceed the detention 
+capacity, a conducive detention centre situation, and bottom-up approach development. 
+Based on the facts that occurred in the field, the authors analyzed the obstacles to 
+handling the construction of prisoners in the Class II B Barru State Detention House, 
+namely the sentence that was too long resulted in inmates experiencing depression so that 
+the guidance carried out at the Class II B Barru State Detention Center was disrupted, the 
+number of officers was minimal, a small budget, inadequate facilities, and infrastructure 
+and the implementation of overlapping developments are also factors that hamper the 
+handling of prisoner development at the Class II B Barru State Detention Center. 
+ 
+IV. CONCLUSION 
+Community guidance has not been effective when viewed from the inmates' 
+understanding of coaching at the detention center, namely most of the inmates do not 
+understand the types of coaching so it becomes an obstacle in handling the development 
+of prisoners in Class II B. Barru detention centers such as the relatively long detention 
+period causes inmates to experience depression, minimal number of officers, small 
+budget, inadequate facilities, and infrastructure and overlapping implementation of 
+coaching. 
+ 
+V. SUGGESTION 
+This article would not have been possible without the help of the Barru IIB Detention 
+Center, which helped the team tremendously to devote their time and energy to providing 
+data and reports for the successful implementation of the research. Articles created on 
+similar themes, and their quotes helped us compile this article in a timely and smooth 
+manner. The authors would also like to thank the leadership, especially the Chancellor of 
+the Institut Ilmu Sosial dan Bisnis Andi Sapada, and all faculty leaders. 
+ 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+413
+ 
+Muhammad Akbar Fhad Syahril, Ibrahim Rusli, Ardyanti Aris
+ 
+BIBLIOGRAPHY 
+ 
+Books and Writings 
+Eryansyah, A. M. (2022). Hakikat Sistem Pemasyarakatan Sebagai Upaya Pemulihan 
+Terhadap Warga Binaan Pemasyarakatan= The Nature of the Correctional System 
+as a Recovery Effort for the Correctional Assisted Citizens (Doctoral dissertation, 
+Universitas Hasanuddin). 
+Ibrahim Rusli. 2021. Analisis Yuridis Terhadap Pembinaan Narapidana Terkait Dengan 
+Undang-Undang No.12 Tahun 1995 Tentang Pemasyarakatan Pada Rumah 
+Tahanan Negara Kelas II B Barru. Thesis not published. Parepare: Amsir Parepare 
+College of Law (STIH). 
+Nawi, S. (2017). Penelitian Normatif Versus Penelitian hukum empiris. Makassar: PT 
+Umitoha Ukhuwah Grafika. 
+Nurfianti, N. (2017). Pembinaan Terhadap Narapidana Pelaku Pencabulan Anak di 
+Bawah Umur di Rutan Kelas II B Kabupaten Sinjai (Doctoral dissertation, 
+Univeritas Islam Negeri Alauddin Makassar). 
+Purlamtasari, D. A. (2020). Tinjauan Pengelolaan Sampah Di Rumah Tahanan Negara 
+Kelas IIB Kabupaten Purbalingga Tahun 2020. 
+ 
+Journals 
+Aprilianto, D. (2015). Program Pembinaan Di Lapas Kelas II B Lamongan Perspektif 
+Filsafat Hukum Pidana Islam. Maraji: Jurnal Ilmu Keislaman, 2(1), 67-91. 
+Apsari, D. S., Trwati, A., & Mukharom, M. (2019). Pelaksanaan Sistem Pemasyarakatan 
+Terhadap Narapidana Di Lembaga Pemasyarakatan Perempuan Klas Ia 
+Semarang. Humani (Hukum Dan Masyarakat Madani), 5(3), 26–37 
+Karim, K., Herman, B., Akbar, M., & Syahril, F. (2021). Criminological Analysis of Online 
+Buying Fraud. DME Journal of Law (Guru Gobind Singh Indraprastha 
+University), 2(1), 10–16. https://doi.org/10.53361/DMEJL.v2i01.0002 
+Rasad, F. (2021). Perubahan Pidana Mati Menjadi Pidana Penjara Melalui Pemidanaan 
+Secara Alternatif. Jurnal HAM, 12, 141-163. 
+Sinabang, A. (2021). Pembinaan Dan Pemberian Hak-Hak Warga Binaan di Lapas. 
+Nusantara: Jurnal Ilmu Pengetahuan Sosial, 8(2), 293-302. 
+ 
+Statutory 
+Kitab Undang-Undang Hukum Acara Pidana (KUHAP) 
+Undang-Undang No. 12 Tahun 1995 Tentang Pemasyarakatan 
+
+KRTHA BHAYANGKARA | Volume 16 Number 2, December 2022 
+414 
+ 
+        
+ 
+ 
+ 
+   The Urgency of Guidance in Correctional Institutions 
+Peraturan Pemerintah No. 31 Tahun 1999 Tentang. Pembinaan dan Pembimbingan 
+Warga Binaan Pemasyarakatan 
+Keputusan Menteri Kehakiman Republik Indonesia Nomor: M. 02.-PK.04.10 Tahun 
+1990 Tentang Pola Pembinaan Narapidana/Tahanan Menteri Kehakiman 
+Republik  Indonesia 
+Keputusan Menteri Kehakiman dan HAM RI No. M.01.PL.01.01 Tahun 2003 tentang 
+Pola Bangunan Unit Pelaksana Teknis Pemasyarakatan. 
+Peraturan Menteri Hukum dan HAM No. 6 Tahun 2013 Tentang Tata tertib Lembaga 
+Pemasyarakatan dan Rumah Tahanan Negara (Rutan) 
+Peraturan Menteri Hukum dan HAM tentang Perubahan atas Peraturan Menteri Hukum 
+dan Hak Asasi Manusia Nomor 3 Tahun 2018 tentang Syarat dan Tata Cara 
+Pemberian Remisi, Asimilasi, Cuti Mengunjungi Keluarga, Pembebasan Bersyarat, 
+Cuti Menjelang Bebas, dan Cuti Bersyarat 
+Peraturan Menteri Hukum dan HAM No. 35 Tahun 2018 Tentang Revitalisasi 
+Penyelenggaraan Pemasyarakatan 
diff --git a/corpus/law/text/2338a4eda0c8b003.txt b/corpus/law/text/2338a4eda0c8b003.txt
new file mode 100644
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@@ -0,0 +1,2463 @@
+PRELIMINARY PRINT 
+Volume 607 U. S. Part 2 
+Pages 627–692 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+March 31, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2025 
+627 
+Syllabus 
+CHILES v. SALAZAR, EXECUTIVE DIRECTOR OF 
+THE COLORADO DEPARTMENT OF REGULATORY 
+AGENCIES, et al. 
+certiorari to the united states court of appeals for 
+the tenth circuit 
+No. 24–539. Argued October 7, 2025—Decided March 31, 2026 
+Kaley Chiles holds a master's degree in clinical mental health and a state 
+counseling license in Colorado. Ms. Chiles does not begin counseling 
+with any predetermined goals; instead, she sits down with clients, dis­
+cusses their goals, and then formulates methods of counseling that will 
+most beneft them, seeking throughout to respect her clients' fundamen­
+tal right of self-determination. On matters of sexuality and gender, 
+Ms. Chiles's clients, including young people, often have different goals: 
+Some are content with their sexual orientation and gender identity and 
+want help with social issues or family relationships, while others hope 
+to reduce or eliminate unwanted sexual attractions, change sexual be­
+haviors, or grow in the experience of harmony with their bodies. With 
+all those clients, Ms. Chiles seeks to help them reach their stated objec­
+tives. And she employs only talk therapy. 
+In 2019, Colorado adopted a law prohibiting licensed counselors from 
+engaging in “conversion therapy” with minors, Colo. Rev. Stat. § 12– 
+245–224(1)(t)(V), defning the term to include “any practice or treatment 
+. . . that attempts . . . to change an individual's sexual orientation or 
+gender identity,” as well as any “effor[t] to change behaviors or gender 
+expressions or to eliminate or reduce sexual or romantic attractions to­
+ward individuals of the same sex,” § 12–245–202(3.5)(a). Yet the law 
+explicitly allows counselors to provide “[a]cceptance, support, and un­
+derstanding for . . . identity exploration and development,” § 12–245– 
+202(3.5)(b)(I), and to assist persons “undergoing gender transition,” 
+§ 12–245–202(3.5)(b)(II). Ms. Chiles fled suit in federal court seeking 
+a preliminary injunction, raising a First Amendment challenge to the 
+law as it applies to her talk therapy. 
+Both the district court and the Tenth Circuit determined that Ms. 
+Chiles had Article III standing to pursue her as-applied pre­
+enforcement challenge. On the merits, however, both courts denied Ms. 
+Chiles's request for a preliminary injunction, reasoning that Colorado's 
+law is best understood as regulating professional conduct and that it regu­
+lates speech only incidentally, thus triggering no more than rational-
+basis review under the First Amendment. This Court granted certio­
+
+Page Proof Pending Publication
+628 
+CHILES v. SALAZAR 
+Syllabus 
+rari to resolve a circuit confict over how the First Amendment interacts 
+with laws like Colorado's when those laws are applied to talk therapy. 
+Held: Colorado's law banning conversion therapy, as applied to Ms. Chiles's 
+talk therapy, regulates speech based on viewpoint, and the lower courts 
+erred by failing to apply suffciently rigorous First Amendment scrutiny. 
+Pp. 639–655. 
+(a) The First Amendment protects the inalienable right of every indi­
+vidual to decide for himself “how best to speak,” Riley v. National Fed­
+eration of Blind of N. C., Inc., 487 U. S. 781, 791, and laws regulating 
+speech based on its subject matter or “communicative content” are “pre­
+sumptively unconstitutional,” triggering “strict scrutiny” that requires 
+the government to prove its restriction is “narrowly tailored to serve 
+compelling state interests,” Reed v. Town of Gilbert, 576 U. S. 155, 163. 
+“Viewpoint discrimination” represents an even more “egregious form” 
+of content regulation from which governments must nearly always “ab­
+stain.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 
+819, 829. 
+The Court has recognized only a “few historic and traditional catego­
+ries of expression”—such as fraud, defamation, and “fghting words”— 
+where content-based restrictions do not automatically trigger strict 
+scrutiny. United States v. Alvarez, 567 U. S. 709, 717. These catego­
+ries are narrowly drawn and share a long and well-recognized histori­
+cal pedigree. 
+A law regulating the content of speech cannot avoid searching First 
+Amendment review just because it mostly regulates non-expressive con­
+duct. What matters is whether, in fact, the law regulates speech in the 
+case at hand, as illustrated by Cohen v. California, 403 U. S. 15, and 
+Holder v. Humanitarian Law Project, 561 U. S. 1. And the First 
+Amendment's protections extend to licensed professionals much as they 
+do everyone else. National Institute of Family and Life Advocates v. 
+Becerra, 585 U. S. 755, 766–767. Pp. 640–643. 
+(b) As applied to Ms. Chiles, Colorado's law regulates the content of 
+her speech and goes further to prescribe what views she may and may 
+not express, discriminating on the basis of viewpoint. The law permits 
+her to express acceptance and support for clients exploring their iden­
+tity or undergoing gender transition, § 12–245–202(3.5)(b), but forbids 
+her from saying anything that attempts to change a client's “sexual ori­
+entation or gender identity,” including efforts to change “behaviors,” 
+“gender expressions,” or “romantic attraction[s],” §12–245–202(3.5)(a). 
+Her speech does not become “conduct” just because a government says 
+so or because it may be described as a “treatment” or “therapeutic mod­
+ality.” The First Amendment is no word game, and “the exercise of 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+629 
+Syllabus 
+constitutional rights” cannot be circumscribed “by mere labels.” 
+NAACP v. Button, 371 U. S. 415, 429. 
+The fact that the State's viewpoint regulation falls only on licensed 
+health care professionals does not change the equation. The First 
+Amendment protects the right of all to speak their minds, and NIFLA 
+expressly rejected the notion that professional speech is subject to “ `di­
+minished constitutional protection.' ” 585 U. S., at 767. History is lit­
+tered with examples of governments that have sought to manipulate 
+professional speech “to increase state power,” “suppress minorities,” 
+and censor “ `unpopular ideas.' ” Id., at 771. 
+Colorado's law does not implicate any recognized exception to the 
+Court's usual First Amendment rules. It does not require disclosure 
+of “factual, noncontroversial information in . . . `commercial speech,' ” 
+id., at 768, and as applied to Ms. Chiles, it does not regulate conduct in 
+a way that only “incidentally burden[s] speech,” id., at 769. All she 
+does is speak, and speech is all Colorado seeks to regulate. 
+Colorado's argument that the law regulates speech only incidentally 
+fails because the Court's speech-incident-to-conduct doctrine asks 
+whether the law restricts speech only because it is integrally related to 
+unlawful conduct, or whether the law restricts expressive conduct only 
+for reasons unrelated to its content. Colorado's law does neither: Ms. 
+Chiles's speech does not bear a close causal connection to any separately 
+unlawful conduct, and the State's law trains directly on the content of 
+her speech, permitting some viewpoints but not others. Pp. 643–650. 
+(c) Colorado cannot establish that applying its law to Ms. Chiles falls 
+within a long tradition of permissible content regulation. 
+Colorado's arguments proceed at far too high a level of generality, 
+asking the Court to recognize a broad “ `First Amendment Free Zone' ” 
+for speech the State considers “substandard care.” United States v. 
+Stevens, 559 U. S. 460, 469. The Court's precedents foreclose aggregat­
+ing discrete traditions of content-based regulations to sustain some new 
+and broader category of lesser-protected speech. 
+Even taking each of the traditions Colorado invokes on its own terms, 
+none supports the State's position. Colorado's suggestion that the stat­
+ute represents a traditional law licensing of medicine fails because the 
+State has not presented persuasive evidence of a historic tradition— 
+the frst state “counselor-licensure bill” was adopted only in 1976—and 
+because licensing laws have traditionally addressed qualifcations, not 
+dictated a professional's point of view. Colorado's analogy to informed-
+consent laws fails because such laws regulate speech only incident to 
+separate physical conduct and usually require disclosure of only factual 
+and uncontroversial information, whereas Colorado's law as applied to 
+Ms. Chiles seeks to silence a viewpoint she wishes to express. Finally, 
+
+630 
+CHILES v. SALAZAR 
+Syllabus 
+Colorado's invocation of traditional tort claims for malpractice fails be­
+cause malpractice actions require exacting proof of injury caused by 
+breach of duty, “provid[ing] breathing room for protected speech,” Illi­
+nois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 
+620, whereas Colorado's law threatens fnes, probation, and loss of li­
+cense simply for expressing a particular view, and does not allow clients 
+to consent to practices that depart from the prevailing standard of care. 
+Pp. 650–655. 
+(d) The First Amendment stands as a bulwark against any effort to 
+prescribe an orthodoxy of views, refecting a belief that each American 
+enjoys an inalienable right to speak his mind and a faith in the free 
+marketplace of ideas as the best means for fnding truth. Laws like 
+Colorado's, which suppress speech based on viewpoint, represent an 
+egregious assault on both commitments. P. 655. 
+116 F. 4th 1178, reversed and remanded. 
+Gorsuch, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Bar­
+rett, JJ., joined. Kagan, J., fled a concurring opinion, in which Soto-
+mayor, J., joined, post, p. 655. Jackson, J., fled a dissenting opinion, post, 
+p. 659. 
+James A. Campbell argued the cause for petitioner. With 
+him on the briefs were Kristen K. Waggoner, Barry K. Ar­
+rington, Shaun Pearman, John J. Bursch, David A. Cort-
+man, Erin M. Hawley, Caroline C. Lindsay, Jonathan A. 
+Scruggs, Jacob P. Warner, Roger G. Brooks, and Bryan D. 
+Neihart. 
+Principal Deputy Solicitor General Moopan argued the 
+cause for the United States as amicus curiae supporting 
+petitioner. With him on the brief were Solicitor General 
+Sauer, Assistant Attorney General Shumate, Zoe A. Jacoby, 
+Michael S. Raab, and Lowell V. Sturgill, Jr. 
+Shannon Wells Stevenson, Solicitor General of Colorado, ar­
+gued the cause for respondents. With her on the brief were 
+Philip J. Weiser, Attorney General of Colorado, Helen Norton, 
+Deputy Solicitor General, Andrew M. Williams, Assistant 
+Deputy Attorney General, Robert W. Finke, First Assistant 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+631 
+Counsel 
+Attorney General, and Janna K. Fischer, Abby Chestnut, 
+and Talia Kraemer, Assistant Solicitors General, and Bri­
+anna S. Tancher, Assistant Attorney General.* 
+*Briefs of amici curiae urging reversal were fled for the State of Iowa 
+et al. by Brenna Bird, Attorney General of Iowa, Eric Wessan, Solicitor 
+General, and by the Attorneys General for their respective States as fol­
+lows: Steve Marshall of Alabama, Treg Taylor of Alaska, Tim Griffn of 
+Arkansas, James Uthmeier of Florida, Chris Carr of Georgia, Raúl R. 
+Labrador of Idaho, Kris Kobach of Kansas, Russell M. Coleman of Ken­
+tucky, Liz Murrill of Louisiana, Andrew T. Bailey of Missouri, Austin 
+Knudsen of Montana, Michael T. Hilgers of Nebraska, Drew Wrigley of 
+North Dakota, Dave Yost of Ohio, Gentner Drummond of Oklahoma, Alan 
+Wilson of South Carolina, Marty Jackley of South Dakota, Ken Paxton of 
+Texas, and John B. McCuskey of West Virginia; for the Alliance for Thera­
+peutic Choice and Scientifc Integrity by Nicholas P. Miller; for the Amer­
+ican College of Pediatricians by Gene C. Schaerr, Edward H. Trent, and 
+John Greil; for the American Unity Fund et al. by Megan M. Wold; for 
+the Americans for Prosperity Foundation et al. by Cynthia Fleming 
+Crawford, Casey Mattox, James L. Kerwin, and William E. Trachman; 
+for America's Frontline Doctors et al. by David A. Dalia; for America's 
+Future et al. by William J. Olson, Jeremiah L. Morgan, and Joseph W. 
+Miller; for the Anglican Church in North America et al. by R. Shawn 
+Gunnarson and Christopher A. Bates; for the Association of American 
+Physicians and Surgeons by Andrew L. Schlafy; for the Association of 
+Certifed Biblical Counselors by Michael S. Overing, Edward C. Wilde, 
+and Itzel Morales; for the Becket Fund for Religious Liberty by Adèle A. 
+Keim, Luke W. Goodrich, Rebekah P. Ricketts, Benjamin A. Fleshman, 
+and Amanda G. Dixon; for Catholic Licensed Counselors et al. by Freder­
+ick W. Claybrook, Jr.; for the CatholicVote.org Education Fund by Scott 
+W. Gaylord; for the Changed Movement by Samuel J. Salario, Jr.; for the 
+Christian Family Coalition (CFC) Florida, Inc., by Dennis Grossman; for 
+the Christian Legal Society by Steven T. McFarland, Laura Nammo, Lori 
+Kepner, and Dustin D. Romney; for the Colson Center for Christian 
+Worldview et al. by Michael Francisco and Andrew Nussbaum; for Do 
+No Harm, Inc., by David H. Thompson and Brian W. Barnes; for the 
+Family Research Council et al. by Christopher E. Mills; for First Amend­
+ment Scholars by William H. Hurd and Michael W. Thomas; for the Foun­
+dation for Moral Law by John A. Eidsmoe; for the Frontline Policy Council 
+et al. by Kristine L. Brown; for Heartbeat International by Patrick Straw-
+bridge, Tiffany H. Bates, Kelly J. Shackelford, Jeffrey C. Mateer, David J. 
+Hacker, and Jeremiah G. Dys; for the Institute for Free Speech by Owen 
+
+632 
+CHILES v. SALAZAR 
+Opinion of the Court 
+Justice Gorsuch delivered the opinion of the Court. 
+Kaley Chiles is a mental-health counselor in Colorado. In 
+this case, we consider her First Amendment challenge to a 
+Yeates; for Jaco Booyens Ministries (JBM) et al. by Frank J. Wright; for 
+Legislators from 30 State Legislatures by William Wagner; for Liberty 
+Counsel by Mathew D. Staver, Anita L. Staver, and Horatio G. Mihet; for 
+the Liberty Justice Center by Jeffrey Schwab; for the Manhattan Institute 
+et al. by Ilya Shapiro and Howard Slugh; for Medical Professionals by 
+John C. Sullivan and Robert P. George; for the National Association of 
+Scholars by Dennis J. Saffran; for National Religious Broadcasters by 
+Michael P. Farris; for the NC Values Institute et al. by Deborah J. Dew-
+art, Tami Fitzgerald, and Robert H. Tyler; for Our Duty-USA et al. by Dan­
+iel Cragg; for the Pacifc Legal Foundation by Ethan W. Blevins and Caleb 
+R. Trotter; for Sexual Orientation Scholars by Jonathan R. Whitehead; 
+for the United States Conference of Catholic Bishops et al. by Nicholas J. 
+Nelson; for the Women's Liberation Front by Elspeth B. Cypher; for Erin 
+Brewer et al. by Renee K. Carlson and Douglas G. Wardlow; for Joy Buch­
+man et al. by Luke N. Berg and Richard M. Esenberg; for Sexuality Re­
+search Scholar Amy E. Hamilton by Randall L. Wenger and Janice L. 
+Martino-Gottshall; for Mary Hasson et al. by Thomas Brejcha; for 
+Anthony M. Joseph by Allan E. Parker, Jr., R. Clayton Trotter, and 
+Steven W. Fitschen; and for David A. Robinson, pro se. Robert J. Mc­
+Namara, Samuel B. Gedge, Andrew Ward, Michael N. Greenberg, Jeffrey 
+T. Rowes, and Paul V. Avelar fled a brief for Parties in Other First 
+Amendment Cases Pending Before the Court urging vacatur and 
+remand. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Washington et al. by Nicholas W. Brown, Attorney General of Washing­
+ton, Noah G. Purcell, Solicitor General, Cristina Sepe, Deputy Solicitor 
+General, and by the Attorneys General for their respective jurisdictions as 
+follows: Rob Bonta of California, William Tong of Connecticut, Kathleen 
+Jennings of Delaware, Brian L. Schwalb of the District of Columbia, Anne 
+E. Lopez of Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, 
+Anthony G. Brown of Maryland, Andrea Joy Campbell of Massachusetts, 
+Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of 
+Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez of New Mexico, 
+Letitia James of New York, Jeff Jackson of North Carolina, Dan Rayfeld 
+of Oregon, Peter F. Neronha of Rhode Island, Charity R. Clark of Ver­
+mont, and Joshua L. Kaul of Wisconsin; for the American Psychological 
+Association et al. by Jessica Ring Amunson, Deanne M. Ottaviano, and 
+Aaron M. Panner; for the Constitutional Accountability Center by Eliza­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+633 
+Opinion of the Court 
+state law regulating what she may say when speaking with 
+her clients. 
+beth B. Wydra, Brianne J. Gorod, and David H. Gans; for Constitutional 
+Law and First Amendment Scholars by Thomas S. Kessler, Luke A. Bare­
+foot, and Sarah E. Libowsky; for the Conversion Therapy Survivor Net­
+work et al. by Shayna Medley, Ezra Cukor, and Katherine Rosenfeld; for 
+Experts in Health Care Practice et al. by Craig Konnoth, Lisa Linsky, 
+and Jared Gerber; for Faith-Based Mental Health Professionals by Paul 
+Alessio Mezzina, Amy R. Upshaw, and Sean P. Madden; for the Fred T. 
+Korematsu Center for Law and Equality et al. by Paul F. Rugani, Nicole 
+Ries Fox, Shane McCammon, and Robert S. Chang; for Health Law Schol­
+ars by Cynthia Cheng-Wun Weaver, Ami R. Patel, and John Paul 
+Schnapper-Casteras; for Legal Ethics Professors by Melissa C. Cassel; for 
+Medical History Scholars et al. by Kendra N. Beckwith; for Members of Con­
+gress by Conor Tucker and Jefferson Klocke; for PFLAG, Inc., et al. by Jo­
+seph H. Lang, Jr., and Nancy J. Faggianelli; for Parents of Conversion-
+Therapy Participants et al. by Parker Rider-Longmaid, Steven Marcus, and 
+Hanaa Khan; for Professors of Law et al. by Kathleen R. Hartnett, Patrick 
+J. Hayden, Raymond P. Tolentino, and Joshua Revesz; for Religious Organi­
+zations by Amy Tai; for the Trevor Project, Inc., et al. by Abbey Hudson, 
+Amer S. Ahmed, Kelly Herbert, Shireen A. Barday, and Stuart F. Delery; 
+for Guy Albert, Ph.D., by Alice W. Yao and Mary Rohmiller; for Interna­
+tional Law Scholar Paul Behrens by Sonia Miller-Van Oort; for Gregory 
+Coles et al. by William L. Harbison; for Ryan M. Kendall et al. by Sarah 
+Austin and Patience Crozier; for David Palmieri et al. by Mark W. Fried­
+man and Justin R. Rassi; for Mathew Shurka by Ross M. Bagley and 
+Meghan E. Hill; for Dr. Jack L. Turban MD, MHS, et al. by John M. 
+McHugh; and for 27+ Lay Roman Catholics by James K. Riley, pro se. 
+Briefs of amici curiae were fled for the American Association of Chris­
+tian Counselors et al. by Sean P. Gates; for the Christian Medical and 
+Dental Associations et al. by Kristine L. Brown; for Former Conversion 
+Therapy Leaders by Laura Landenwich; for the Freedom From Religion 
+Foundation by Patrick Elliott; for the International Foundation for Thera­
+peutic and Counseling Choice by William Bock III; for Land-Surveyor 
+and Civil-Engineer Trade Associations by Jens B. Koepke and Steve 
+Hirsch; for the LONANG Institute by Kerry Lee Morgan and Randall A. 
+Pentiuk; for the UCLA School of Law Williams Institute Scholars by S. 
+Douglas Bunch and Ryan Wheeler; for Randy Elf, pro se; for Erin Lee 
+et al. by J. Brad Bergford; for Joseph Nicolosi, Jr., Ph.D., et al. by Jeffrey 
+M. Trissell, Charles S. LiMandri, Paul M. Jonna, and Thomas Brejcha; 
+for Clifford J. Rosky et al. by Veronica Percia and Whitney Pellegrino; 
+and for Eugene Volokh, pro se. 
+
+634 
+CHILES v. SALAZAR 
+Opinion of the Court 
+I 
+A 
+According to Ms. Chiles's verifed complaint, she holds a 
+master's degree in clinical mental health and a state counsel­
+ing license. App. to Pet. for Cert. 212a (App.). Clients 
+seek her help on a wide variety of mental-health issues, in­
+cluding trauma, addiction, “eating disorders, gender dyspho­
+ria[,] and sexuality.” Id., at 206a–207a, 215a. Ms. Chiles 
+“does not begin counseling” on any topic “with any predeter­
+mined goals.” Id., at 207a. Nor does she seek to “impose 
+her values or beliefs” on clients. Id., at 212a. Instead, she 
+“sits down . . . and talks to them about their goals.” Id., at 
+207a; see also id., at 213a. Only after clients have identifed 
+their own aspirations does Ms. Chiles begin “formulat[ing] 
+methods of counseling that will most beneft” them. Id., at 
+207a. In any counseling that follows, as well, Ms. Chiles 
+seeks to respect her “clients' fundamental right of self-
+determination.” Ibid. 
+On matters of sexuality and gender, Ms. Chiles's clients, 
+including minors, come to her with different goals in mind. 
+Some “are content with” their sexual orientation and gender 
+identity and seek assistance only with “social issues, family 
+relationships,” and the like. Id., at 207a, 213a–214a. In 
+cases like those, Ms. Chiles does not try to persuade her 
+clients to “change their attractions, behavior, or identity,” 
+but aims instead to help them address their stated goals. 
+Id., at 214a; see also id., at 207a. Other clients, however, 
+come to her hoping to “reduce or eliminate unwanted sexual 
+attractions, change sexual behaviors, or grow in the experi­
+ence of harmony with [their] bod[ies].” Ibid. And in these 
+cases, too, Ms. Chiles seeks to help her clients reach their 
+own stated objectives. Ibid. In doing so, she does not pre­
+scribe any medicines, perform any physical treatments, or 
+engage in any coercive or aversive practices. Id., at 205a– 
+207a. All Ms. Chiles offers is talk therapy. Ibid. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+635 
+Opinion of the Court 
+B 
+In 2019, Colorado adopted a law prohibiting licensed coun­
+selors from engaging in “conversion therapy” with minors. 
+Colo. Rev. Stat. § 12–245–224(1)(t)(V) (2025). The State re­
+ports that it adopted the law “in response to a growing men­
+tal health crisis among Colorado teenagers and mounting evi­
+dence that conversion therapy is associated with increased 
+depression, anxiety, suicidal thoughts, and suicide attempts.” 
+Brief for Respondents 11–12. Any Coloradan who thinks a 
+licensed counselor is engaging in conversion therapy may 
+fle a complaint with a regulatory board. See § 12–245– 
+226(1)(a)(II)(B). A complaint, in turn, triggers a discipli­
+nary review process that can yield a fne, probation, or the 
+loss of a license. See § 12–245–225; Brief for Respondents 9. 
+The term “conversion therapy” may evoke physical tech­
+niques such as “ `electric shoc[k]' ” therapy aimed at chang­
+ing an individual's sexual orientation or gender identity. 
+Id., at 4. But Colorado's ban on conversion therapy reaches 
+further, forbidding “any practice or treatment . . . that 
+attempts . . . to change an individual's sexual orientation 
+or gender identity.” § 12–245–202(3.5)(a) (emphasis added). 
+The law forbids as well any “effor[t ] to change behaviors or 
+gender expressions or to eliminate or reduce sexual or ro­
+mantic attraction or feelings toward individuals of the same 
+sex.” Ibid. At the same time, the law explicitly allows 
+counselors to engage in “practices” that provide “[a]ccept­
+ance, support, and understanding for the facilitation of an 
+individual's . . . identity exploration and development.” 
+§ 12–245–202(3.5)(b)(I). Likewise, the law allows counselors 
+to provide “[a]ssistance to a person undergoing gender tran­
+sition.” § 12–245–202(3.5)(b)(II). 
+After Colorado adopted its new law, Ms. Chiles fled suit 
+in federal court and sought a preliminary injunction prohibit­
+ing the State from enforcing it against her. She did not dis­
+pute that the statute has many valid applications. Indeed, 
+Ms. Chiles did not take issue with Colorado's effort to ban 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+636 
+CHILES v. SALAZAR 
+Opinion of the Court 
+what she herself calls “long-abandoned, aversive” physical 
+interventions. Brief for Petitioner 10. Instead, Ms. Chiles 
+objected to Colorado's law only as it applies to her talk ther­
+apy, therapy that involves no physical interventions or medi­
+cations, only the spoken word. Motion for Preliminary 
+Injunction in No. 22–cv–2287 (D Colo.), ECF Doc. 29, pp. 2– 
+3, 15. 
+Ms. Chiles's as-applied challenge ran this way. With re­
+spect to gender identity, she claimed, the law permits her to 
+speak in ways that encourage a client “ `undergoing gender 
+transition,' ” but the law prohibits her from speaking in ways 
+that help a client “realign [his] identity with [his] sex.” 
+Brief for Petitioner 11; see ECF Doc. 29, at 17–20. With 
+respect to sexual orientation, Ms. Chiles continued, Colora­
+do's law similarly allows her to affrm a client's sexual orien­
+tation, but prohibits her from speaking in any way that helps 
+a client “change” his sexual attractions or behaviors. Brief 
+for Petitioner 11; see ECF Doc. 29, at 17–20. Even though 
+Colorado's law surely has other constitutional applications, 
+she insisted, these constraints strip her of her First Amend­
+ment right to speak freely with her clients in ways she be­
+lieves might help them meet “their own goals.” Brief for 
+Petitioner 12; see ECF Doc. 29, at 2–3. 
+C 
+Both the district court and the Tenth Circuit determined 
+that Ms. Chiles had Article III standing to pursue her as-
+applied pre-enforcement challenge. 116 F. 4th 1178, 1199, 
+1201 (2024); Civ. Action No. 1:22–cv–2287 (D Colo., Dec. 19, 
+2022), App. 139a. 
+In support of their conclusion, both courts read Colorado's 
+law as prohibiting licensed counselors like Ms. Chiles from 
+engaging in any attempt—including through speech—to help 
+a minor client change his gender identity or sexual orienta­
+tion. 116 F. 4th, at 1197; App. 141a–142a. Both courts un­
+derstood this prohibition as extending to any attempt—in­
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+637 
+Opinion of the Court 
+cluding through speech—to change a client's “behaviors or 
+gender expressions or to eliminate or reduce sexual or ro­
+mantic attraction or feelings toward individuals of the same 
+sex.” § 12–245–202(3.5)(a); see 116 F. 4th, at 1197; App. 
+141a–142a. As both courts saw it, too, Ms. Chiles had pre­
+viously spoken in ways the law now forbids, and she would 
+continue speaking the same way but for Colorado's new law. 
+116 F. 4th, at 1196–1198; App. 141a–142a. Finally, both 
+courts concluded that Ms. Chiles had alleged a “credible 
+threat” that the State would enforce its law against her if 
+she continued speaking as she had in the past and wished to 
+do in the future. Indeed, both courts observed, Colorado 
+authorities had refused to disavow bringing enforcement ac­
+tions against her. 116 F. 4th, at 1198–1199; App. 142a–144a. 
+Under these circumstances, the courts held, Ms. Chiles 
+faced an “ongoing injury resulting from the statute's chilling 
+effect” on her speech. 116 F. 4th, at 1195 (internal quotation 
+marks omitted); see App. 140a–141a. Satisfed as well that 
+Ms. Chiles's injury was traceable to Colorado's law and re­
+dressable by an as-applied constitutional ruling in her favor, 
+both courts held that she possessed Article III standing to 
+bring suit. 116 F. 4th, at 1194, 1199; App. 145a, n. 5. In 
+coming to this conclusion, the lower courts joined others that 
+have found standing in similar cases involving similar stat­
+utes. See, e. g., Tingley v. Ferguson, 47 F. 4th 1055, 1066 
+(CA9 2022); Catholic Charities of Jackson, Lenawee and 
+Hillsdale Ctys. v. Whitmer, 162 F. 4th 686, 691 (CA6 2025).* 
+*We, too, agree that Ms. Chiles has standing. Before us, Colorado only 
+halfheartedly contests the point, suggesting Ms. Chiles cannot establish a 
+present “intention” to speak in a way the law forbids. Brief for Respond­
+ents 23, n. 18. But the State's argument is based not on some new insight 
+about Ms. Chiles's state of mind, only a new and narrowed construction of 
+the statute that the State advances for the frst time in this Court. Id., 
+at 18–19. Colorado's late-breaking construction of its law, however, would 
+render much of the law's language superfuous. Reply Brief 2–6; People 
+v. Rodriguez-Morelos, 562 P. 3d 71, 73 (Colo. 2025) (reciting the presump­
+tion against surplusage when construing state statutes). The State's new 
+
+638 
+CHILES v. SALAZAR 
+Opinion of the Court 
+Turning to the merits, both the district court and the 
+Tenth Circuit denied Ms. Chiles's request for a preliminary 
+injunction. The courts recognized that Ms. Chiles provides 
+only “talk therapy.” 116 F. 4th, at 1193; see App. 152a. 
+And they acknowledged that Colorado's law regulates the 
+“verbal language” she may use. 116 F. 4th, at 1208; see App. 
+152a. But, the courts held, the main thrust of the State's 
+law is to delineate which “treatments” and “therapeutic mo­
+dalit[ies]” are permissible. 116 F. 4th, at 1208, 1210; see 
+App. 151a. Accordingly, the courts reasoned that Colorado's 
+law is best understood as regulating “professional conduct.” 
+116 F. 4th, at 1206, 1208, 1214; see App. 151a, 155a. At most, 
+they continued, Colorado's law regulates speech only “inci­
+dentally” to professional conduct. 116 F. 4th, at 1204; see 
+App. 155a. As a result, the courts concluded, Colorado's law 
+triggers no more than “rational basis review” under the First 
+Amendment, requiring the State to show merely that its law 
+is rationally related to a legitimate governmental interest. 
+116 F. 4th, at 1215; App. 156a. Because the State satisfed 
+that standard, the courts held that Ms. Chiles was not enti­
+tled to the relief she sought. 116 F. 4th, at 1220–1221; 
+App. 157a. 
+At the Tenth Circuit, Judge Hartz dissented. As he saw 
+it, the majority committed “several fundamental errors.” 
+116 F. 4th, at 1227. While Colorado's law may ban conduct 
+in other applications, he observed, with respect to Ms. Chiles 
+it regulates only what she may and may not say. Id., at 
+interpretation also seemingly stands at odds with how the State itself 
+understood its law in proceedings below. See, e. g., Motion to Dismiss 
+Complaint in No. 22–cv–2287 (D Colo.), ECF Doc. 52, p. 5, n. 3. Sepa­
+rately, Colorado suggests that Ms. Chiles has not shown a credible threat 
+that the State will enforce its law against her. Brief for Respondents 23, 
+n. 18. But Colorado has fought this suit through three courts over three 
+years and, at argument here, expressly declined to disavow enforcement 
+against Ms. Chiles. Tr. of Oral Arg. 80–81. As the lower courts held, no 
+more is required under this Court's precedents. 116 F. 4th, at 1199; App. 
+145a; see Susan B. Anthony List v. Driehaus, 573 U. S. 149, 159 (2014). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+639 
+Opinion of the Court 
+1231. And under this Court's precedents, he argued, that 
+kind of speech regulation triggers far more demanding scru­
+tiny than mere rational-basis review. Id., at 1226–1229. 
+Nor, Judge Hartz continued, does the fact that Ms. Chiles 
+happens to hold a professional license change the equation. 
+Id., at 1229–1230. To the contrary, he said, the majority's 
+effort to recast Ms. Chiles's speech as “professional conduct” 
+amounted to little more “than a labeling game.” Id., at 1231 
+(internal quotation marks omitted). 
+After the Tenth Circuit ruled, Ms. Chiles sought certio­
+rari. In doing so, she argued that the Tenth Circuit's deci­
+sion “worsened a circuit confict” over how the First Amend­
+ment interacts with laws like Colorado's. Pet. for Cert. 16; 
+compare 116 F. 4th, at 1221, and Tingley, 47 F. 4th, at 1077, 
+with Catholic Charities of Jackson, 162 F. 4th, at 696; Otto 
+v. Boca Raton, 981 F. 3d 854, 868–870 (CA11 2020); King v. 
+Governor of New Jersey, 767 F. 3d 216, 229 (CA3 2014), abro­
+gated in part by National Institute of Family and Life Ad­
+vocates v. Becerra, 585 U. S. 755, 767–769 (2018) (NIFLA); 
+Tingley v. Ferguson, 57 F. 4th 1072, 1083–1085 (CA9 2023) 
+(Bumatay, J., dissenting from denial of rehearing en banc). 
+We agreed to hear the case. 604 U. S. 1193 (2024). 
+II 
+The question before us is a narrow one. Ms. Chiles does 
+not question that Colorado's law banning conversion therapy 
+has some constitutionally sound applications. See Brief for 
+Petitioner 53. She does not take issue with the State's 
+effort to prohibit what she herself calls “long-abandoned, av­
+ersive” physical interventions. Id., at 10. Instead, Ms. 
+Chiles stresses that she provides only talk therapy, employ­
+ing no physical techniques or medications. Yet, she argues, 
+Colorado's law still applies to her, prescribing what she may 
+say in “voluntary counseling conversations” with her clients. 
+Id., at 50. And because that application of the law strikes 
+at the heart of the First Amendment's protections for free 
+Page Proof Pending Publication
+
+640 
+CHILES v. SALAZAR 
+Opinion of the Court 
+speech, she contends, it warrants considerably more search­
+ing scrutiny than the rational-basis review the Tenth Circuit 
+applied in this case or the intermediate-scrutiny review some 
+other lower courts have employed in cases like hers. Id., at 
+38; see, e. g., King, 767 F. 3d, at 237. We agree. To explain 
+why, we begin by outlining the relevant First Amendment 
+principles that govern us before discussing how they apply 
+here. 
+A 
+The First Amendment “envisions the United States as a 
+rich and complex place” where all enjoy the “ `freedom to 
+think as you will and to speak as you think.' ” 303 Creative 
+LLC v. Elenis, 600 U. S. 570, 584, 603 (2023) (quoting Boy 
+Scouts of America v. Dale, 530 U. S. 640, 660–661 (2000)). 
+Often, speech may prove illuminating and inspiring. Some­
+times, it can be misguided, offensive, or cause “incalculable 
+grief.” Snyder v. Phelps, 562 U. S. 443, 456 (2011). But 
+either way, the First Amendment protects the inalienable 
+right of every individual to decide for himself “how best to 
+speak.” Riley v. National Federation of Blind of N. C., 
+Inc., 487 U. S. 781, 791 (1988). In this Nation, no offcial— 
+“high or petty”—may command our tongues or silence our 
+voices. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 
+642 (1943). 
+Consistent with the First Amendment's jealous protec­
+tions for the individual's right to think and speak freely, this 
+Court has long held that laws regulating speech based on its 
+subject matter or “communicative content” are “presump­
+tively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 
+155, 163 (2015). As a general rule, such “content-based” re­
+strictions trigger “strict scrutiny,” a demanding standard 
+that requires the government to prove its restriction on 
+speech is “narrowly tailored to serve compelling state inter­
+ests.” Ibid. Under that test, it is “ `rare that a regulation 
+. . . will ever be permissible.' ” Brown v. Entertainment 
+Merchants Assn., 564 U. S. 786, 799 (2011) (quoting United 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+641 
+Opinion of the Court 
+States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 
+818 (2000)). 
+We have recognized, as well, the even greater dangers as­
+sociated with regulations that discriminate based on the 
+speaker's point of view. When the government seeks not 
+just to restrict speech based on its subject matter, but also 
+seeks to dictate what particular “opinion or perspective” in­
+dividuals may express on that subject, “the violation of the 
+First Amendment is all the more blatant.” Rosenberger v. 
+Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). 
+“Viewpoint discrimination,” as we have put it, represents “an 
+egregious form” of content regulation, and governments in 
+this country must nearly always “abstain” from it. Ibid.; 
+see also Iancu v. Brunetti, 588 U. S. 388, 393 (2019) (describ­
+ing “the bedrock First Amendment principle that the gov­
+ernment cannot discriminate” based on viewpoint (internal 
+quotation marks omitted)); Good News Club v. Milford Cen­
+tral School, 533 U. S. 98, 112–113 (2001); Barnette, 319 U. S., 
+at 642. 
+Of course, with almost any rule comes exceptions. And 
+this Court has recognized a “few historic and traditional 
+categories of expression long familiar to the bar” where 
+content-based restrictions on speech will not automatically 
+trigger strict scrutiny—categories that include fraud, 
+defamation, and “fghting words.” United States v. Alvarez, 
+567 U. S. 709, 717 (2012) (plurality opinion) (alterations and 
+internal quotation marks omitted). But, as we have taken 
+pains to emphasize, these exceptional categories are few and 
+narrowly drawn, and all share a long and wellrecognized his­
+torical pedigree. Ibid.; see NIFLA, 585 U. S., at 767. In­
+deed, even within these categories we have sometimes still 
+applied strict scrutiny when governments have sought to 
+regulate speech based on viewpoint. See, e. g., R. A. V. v. 
+St. Paul, 505 U. S. 377, 392, 395–396 (1992) (addressing an 
+ordinance that barred certain “fghting words” based on 
+viewpoint). 
+Page Proof Pending Publication
+
+642 
+CHILES v. SALAZAR 
+Opinion of the Court 
+From these general principles, other more specifc ones fol­
+low. So, for example, a law regulating the content of speech 
+cannot avoid searching First Amendment review just be­
+cause it mostly regulates non-expressive conduct. Take a 
+classic illustration: Cohen v. California, 403 U. S. 15 (1971). 
+There, the State of California charged Paul Cohen with “ma­
+liciously and willfully disturb[ing] the peace.” Id., at 16 (in­
+ternal quotation marks omitted). Often, of course, a person 
+disturbs the peace through conduct alone (say, by brawling 
+at a city council meeting). But that is not always true. 
+And in Mr. Cohen's case, California charged him for disturb­
+ing the peace because he wore a jacket bearing the words 
+“ `Fuck the Draft' ” in the corridor of a municipal courthouse. 
+Ibid. As applied to him, the Court recognized, the law im­
+plicated core First Amendment concerns because the only 
+“ `conduct' ” he engaged in was the speech he displayed. Id., 
+at 18. And, we held, California could not constitutionally 
+punish him because of the “content” of his message. Ibid. 
+We repeated the point in Holder v. Humanitarian Law 
+Project, 561 U. S. 1 (2010). That case involved a federal law 
+banning the provision of “ `material support' ” to certain for­
+eign terrorist organizations. Id., at 8–9. Much as Califor­
+nia had in Cohen, the federal government in Holder argued 
+that the law did not trigger strict scrutiny because it ad­
+dressed “conduct, not speech.” 561 U. S., at 26. We dis­
+agreed. True, we acknowledged, the law often might regu­
+late conduct. But, we observed, in the case before us the 
+government threatened to prosecute lawyers, doctors, and 
+others for providing spoken training and expert advice (such 
+as “ `how to use humanitarian and international law to peace­
+fully resolve disputes' ”) to certain groups. Id., at 16, 21–22. 
+And that application of the law, we held, sought to “regulat[e] 
+speech on the basis of its content” and thus demanded strict-
+scrutiny review. Id., at 27–28. 
+As Holder indicates, too, the First Amendment's protec­
+tions extend to licensed professionals much as they do to 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+643 
+Opinion of the Court 
+everyone else. It's a point we have since discussed at length 
+in NIFLA. There, California sought to require crisis preg­
+nancy clinics to make certain statements to their clients. 
+The State argued that its law did not trigger demanding 
+First Amendment review because it sought to regulate only 
+“ `professional speech' ” by state license holders. 585 U. S., 
+at 766–767. We rejected that move. By compelling clinics 
+to speak the State's message, the law regulated speech based 
+on its content. Id., at 766. And, we held, California had 
+failed to “identif[y] a persuasive reason for treating profes­
+sional speech as a unique category . . . exempt from ordinary 
+First Amendment principles.” Id., at 773. 
+In reaching that conclusion, to be sure, we acknowledged 
+two kinds of content-based restrictions that can apply to pro­
+fessional speech without triggering strict scrutiny. First, 
+courts generally deploy less searching review when faced 
+with laws that require speakers to disclose only factual, non­
+controversial information in “ `commercial speech.' ” Id., at 
+768; Zauderer v. Offce of Disciplinary Counsel of Supreme 
+Court of Ohio, 471 U. S. 626, 650–653 (1985). Second, laws 
+regulating conduct in ways that incidentally sweep in speech 
+may also generally avoid strict scrutiny. NIFLA, 585 U. S., 
+at 769. As with laws addressing fraud, defamation, and 
+“fghting words,” laws regulating speech along these two 
+lines enjoy a long historical tradition. Id., at 767. But, we 
+stressed, neither “turn[s] on the fact” that a licensed profes­
+sional happens to be speaking. Id., at 768. Nor, we empha­
+sized, do these narrow categories of lesser-protected speech 
+warrant a new rule exempting a broader “category called 
+`professional speech' ” from demanding First Amendment re­
+view. Ibid. 
+B 
+Applying these principles, we conclude that the courts 
+below failed to apply suffciently rigorous First Amendment 
+scrutiny in this case. 
+Page Proof Pending Publication
+
+644 
+CHILES v. SALAZAR 
+Opinion of the Court 
+Start with the most obvious point. While the First 
+Amendment protects many and varied forms of expression, 
+the spoken word is perhaps the quintessential form of pro­
+tected speech. And that is exactly the kind of expression in 
+which Ms. Chiles seeks to engage. As a talk therapist, all 
+Ms. Chiles does is speak with clients; she does not prescribe 
+medication, use medical devices, or employ any physical 
+methods. App. 205a–207a. 
+Next, and nearly as clear to our eyes, Colorado seeks to 
+regulate the content of Ms. Chiles's speech. When it comes 
+to issues of human sexuality, some of her clients “are content 
+with” their sexual identity and orientation and want help 
+only “with social issues [or] family relationships.” Id., at 
+207a, 214a. But other clients seek her counsel on how to 
+“reduce or eliminate unwanted sexual attractions, change 
+sexual behaviors, or grow in the experience of harmony with 
+[their] bod[ies].” Id., at 207a. And in those cases, Colorado 
+regulates how Ms. Chiles may respond. Under its law, she 
+may not speak in any way that attempts to change a client's 
+“sexual orientation or gender identity”—including a client's 
+“behaviors or gender expressions”—or in any way that seeks 
+to “eliminate or reduce” a client's “sexual or romantic at­
+traction or feelings toward individuals of the same sex.” 
+§ 12–245–202(3.5)(a). 
+Doubtless, Colorado sees things differently. The State in­
+sists, and the Tenth Circuit agreed, that its law does not 
+“regulate expression” at all, only “conduct,” “treatment,” or 
+a “therapeutic modality.” Brief for Respondents 2, 36–37, 
+47; 116 F. 4th, at 1208. As a result, Colorado reasons, its 
+law triggers no more than rational-basis or intermediate-
+scrutiny review. Brief for Respondents 42–44. But the 
+State's premise is simply mistaken. In many applications, 
+the State's law banning “conversion therapy” may address 
+conduct—such as aversive physical interventions. But here, 
+Ms. Chiles seeks to engage only in speech, and as applied to 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+645 
+Opinion of the Court 
+her the law regulates what she may say. Her speech does 
+not become conduct just because the State may call it that. 
+Nor does her speech become conduct just because it can also 
+be described as a “treatment,” a “therapeutic modality,” or 
+anything else. The First Amendment is no word game. 
+And the rights it protects cannot be renamed away or their 
+protections nullifed by “mere labels.” NAACP v. Button, 
+371 U. S. 415, 429 (1963). 
+Our precedents have long made that much clear. Califor­
+nia faulted Mr. Cohen for the “conduct” of wearing an offen­
+sive jacket. Cohen, 403 U. S., at 16. The federal govern­
+ment insisted that its law banning support to terrorists 
+regulated “conduct” even as applied to the written and 
+spoken advice of professionals like lawyers and doctors. 
+Holder, 561 U. S., at 10, 26. But the effort to recast speech 
+as conduct failed in those cases—and it must here too. 
+Under the First Amendment, what matters is not how a gov­
+ernment describes its law or whether the law may regulate 
+conduct in other circumstances. What matters is whether, 
+in fact, the law regulates speech in the case at hand. 
+As applied here, Colorado's law does not just regulate the 
+content of Ms. Chiles's speech. It goes a step further, pre­
+scribing what views she may and may not express. For a 
+gay client, Ms. Chiles may express “[a]cceptance, support, 
+and understanding for the facilitation of . . . identity explora­
+tion.” § 12–245–202(3.5)(b)(I). For a client “undergoing 
+gender transition,” Ms. Chiles may likewise offer words of 
+“[a]ssistance.” § 12–245–202(3.5)(b)(II). But if a gay or 
+transgender client seeks her counsel in the hope of changing 
+his sexual orientation or gender identity, Ms. Chiles cannot 
+provide it. The law forbids her from saying anything that 
+“attempts . . . to change” a client's “sexual orientation or 
+gender identity,” including anything that might represent an 
+“effor[t] to change [her client's] behaviors or gender expres­
+sions or . . . romantic attraction[s].” § 12–245–202(3.5)(a). 
+Page Proof Pending Publication
+
+646 
+CHILES v. SALAZAR 
+Opinion of the Court 
+Colorado disputes none of this; neither does the dissent. 
+See post, at 677–678 (opinion of Jackson, J.) (acknowledging 
+that Colorado has engaged in viewpoint discrimination). 
+Of course, Ms. Chiles remains free to say other things. 
+As Colorado and the dissent emphasize, she may “shar[e] in­
+formation” about sexual orientation or gender identity. 
+Brief for Respondents 20. She can “criticiz[e] Colorado's 
+law.” Ibid. She can “writ[e] papers” espousing her views. 
+Post, at 677 (opinion of Jackson, J.). She may even encour­
+age a client to seek advice from someone else who doesn't 
+hold a state license. Brief for Respondents 20. But true as 
+all that may be, it is also true that she cannot voice certain 
+“perspective[s]” the State disfavors when speaking with con­
+senting clients. Rosenberger, 515 U. S., at 829. And, under 
+our precedents, viewpoint restrictions like that are not sub­
+ject to mere rational-basis review or intermediate scrutiny. 
+Rather, they represent “an egregious form of content dis­
+crimination” where First Amendment concerns are at their 
+most “blatant.” Ibid.; see also Reed, 576 U. S., at 168–169; 
+contra, post, at 666, 677–679 (Jackson, J., dissenting) (con­
+tending that “heightened scrutiny . . . is not warranted” even 
+while admitting that Colorado's law discriminates based on 
+viewpoint). 
+The fact that the State's viewpoint regulation targets only 
+licensed healthcare professionals like Ms. Chiles changes 
+nothing. Colorado and the dissent may believe that the 
+First Amendment should carry “far less salience” for the Na­
+tion's millions of “medical professionals” than for everyone 
+else. Post, at 646 (opinion of Jackson, J.); post, at 674–683; 
+Brief for Respondents 23. They may believe that state-im­
+posed orthodoxies in speech pose few dangers and many bene­
+fts in this feld (and who knows what others). But their policy 
+is not the First Amendment's. The Constitution does not pro­
+tect the right of some to speak freely; it protects the right of 
+all. It safeguards not only popular ideas; it secures, even and 
+especially, the right to voice dissenting views. Consist­
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+647 
+Opinion of the Court 
+ent with these principles, our precedents have expressly re­
+jected the State and dissent's notion that “professional 
+speech” represents some “separate category of speech” sub­
+ject to “diminished constitutional protection.” NIFLA, 585 
+U. S., at 767 (internal quotation marks omitted). History is 
+littered with examples of offcial efforts to manipulate and 
+control professional speech—including “the content of 
+doctor-patient discourse”—in ways designed “to increase 
+state power,” “suppress minorities,” and muzzle “unpopular 
+ideas.” Id., at 771 (internal quotation marks omitted) (re­
+counting examples). And the “dangers associated with” 
+censorship, we have recognized, are no less acute “in the 
+felds of medicine and public health” than they are anywhere 
+else. Ibid. (internal quotation marks omitted). 
+Nor does Colorado's law implicate any recognized excep­
+tion to our usual First Amendment rules. As we have seen, 
+some laws regulating speech based on its content—like ones 
+addressing fraud, defamation, and “fghting words”—do not 
+generally trigger heightened scrutiny because of their long 
+historical pedigree. See Part II–A, supra. As we have 
+seen, too, NIFLA recognized that two kinds of such laws 
+sometimes apply to professionals. See 585 U. S., at 768. 
+But Colorado's law fts in neither category. The State does 
+not require professionals to disclose “factual, noncontrover­
+sial information in their commercial speech.” Ibid. (internal 
+quotation marks omitted). Instead, Colorado seeks to sup­
+press views Ms. Chiles wishes to express. Nor, with re­
+spect to Ms. Chiles, does Colorado's law regulate conduct in 
+a way that only “incidentally burden[s] speech.” Id., at 769. 
+All Ms. Chiles does is speak—and, as far as she is concerned, 
+speech is all Colorado seeks to regulate. 
+Resisting this conclusion, Colorado and the dissent try to 
+shoehorn the State's statute into the latter category. See, 
+e. g., Brief for Respondents 37. By defning prohibited “con­
+version therapy” broadly, Colorado observes, its law pro­
+scribes a “wide range” of “treatments.” Id., at 18. Any 
+Page Proof Pending Publication
+
+648 
+CHILES v. SALAZAR 
+Opinion of the Court 
+activity that seeks to change a client's gender identity or 
+sexual orientation—whether it involves “electric shocks” or 
+consists of “words only”—is banned. Ibid. And consider­
+ing the full scope of the law's many applications, the State 
+submits, it seeks to regulate mostly conduct and reaches 
+speech only incidentally. Ibid. The dissent pursues a simi­
+lar theme, insisting that Colorado has only incidentally pro­
+hibited Ms. Chiles's speech because the law's “primary objec­
+tive” is to regulate medical treatments. Post, at 666–683 
+(opinion of Jackson, J.). 
+This argument echoes Colorado's claim that it seeks to reg­
+ulate only conduct, and they falter for similar reasons. If a 
+government could reclassify talk therapy as speech incident 
+to conduct, it might just as easily do the same for speech 
+incident to “teaching or protesting.” Otto, 981 F. 3d, at 865. 
+“[B]oth are activities, after all.” Ibid. Were that the rule, 
+“[w]hat an opportunity for [the] suppression of dissent this 
+would offer.” 116 F. 4th, at 1228 (Hartz, J., dissenting). 
+Governments could easily wield all manner of laws regulat­
+ing some conduct to silence speech they disfavor. It is a 
+result that would not “compor[t] with the First Amend­
+ment's animating principles” so much as betray them. Con­
+tra, post, at 674 (Jackson, J., dissenting). 
+Recognizing as much, our precedents in Cohen and Holder 
+already foreclose exactly this move. California prosecuted 
+Mr. Cohen under a law banning disturbances of the peace. 
+Cohen, 403 U. S., at 16. The federal government threatened 
+lawyers and doctors with prosecution under a law prohibit­
+ing support for terrorists. Holder, 561 U. S., at 10, 14–15, 
+25. In both cases, the government defended its actions on 
+the ground that the law in question was generally aimed at 
+certain types of conduct. But in both cases, we emphati­
+cally rejected that argument. Just because a law may “gen­
+erally functio[n] as a regulation of conduct,” we held, does 
+not exempt it from demanding First Amendment review 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+649 
+Opinion of the Court 
+when a government seeks to apply that law to speech alone. 
+Id., at 27–28. 
+At bottom, Colorado and the dissent fundamentally mis­
+conceive this Court's speech-incident-to-conduct precedents. 
+In these cases, the question is not whether a law mostly ad­
+dresses conduct and only sometimes sweeps in speech. In­
+stead, the focus lies on two entirely different questions: 
+whether the law in question restricts speech only because it 
+is integrally related to unlawful conduct—or whether the law 
+restricts expressive conduct only for reasons unrelated to its 
+content. Illustrative of the frst category, this Court has 
+held that strict scrutiny does not apply to regulations aimed 
+at speech promoting the sale of contraband because such 
+speech is often bound up with traditional criminal conduct. 
+United States v. Williams, 553 U. S. 285, 297–298 (2008); see 
+also Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 
+(1949); Brief for Eugene Volokh as Amicus Curiae 3–11. Il­
+lustrative of the second category, “an ordinance against out­
+door fres” would not require a court to apply strict scrutiny 
+even if it prohibited burning a fag in protest, because the 
+law forbids conduct without regard to the message it may 
+convey. Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011). 
+Colorado's law does not regulate speech incident to con­
+duct under either test. The State does not dictate what Ms. 
+Chiles may say because her speech bears a close causal con­
+nection to some separately unlawful conduct like a tradi­
+tional crime. Rather, Ms. Chiles seeks to speak with inter­
+ested clients about steps they might take to change 
+unwanted behaviors, expressions, or attractions related to 
+sexual orientation or gender identity—conduct Colorado it­
+self does not dispute those clients (or anyone else) may law­
+fully undertake. Cf. Tr. of Oral Arg. 58 (conceding that “life 
+coaches” and other non-licensees can lawfully convey the ad­
+vice Ms. Chiles seeks to offer). Nor does Colorado seek to 
+regulate Ms. Chiles's speech for reasons unrelated to its con­
+
+650 
+CHILES v. SALAZAR 
+Opinion of the Court 
+tent, like a ban on outdoor fres that happens to sweep in 
+fag burning. Instead, the State's law trains directly on the 
+content of her speech and permits her to express some view­
+points but not others. Colorado does not regulate speech 
+incident to conduct; it regulates “speech as speech.” 
+NIFLA, 585 U. S., at 770. 
+C 
+Perhaps sensing that this Court's existing precedents offer 
+it little support, Colorado ultimately pivots, urging us to re­
+shape our doctrine. In doing so, the State begins by point­
+ing again to NIFLA. There, recall, the Court observed that 
+our cases have identifed “two circumstances” in which 
+speech by professionals may warrant “diminished” First 
+Amendment protection: when a law seeks to compel disclo­
+sure of factual, noncontroversial information in commercial 
+speech; and when a law regulates speech only incidentally to 
+conduct. Id., at 767–768 (internal quotation marks omitted). 
+Still, Colorado emphasizes, NIFLA left open the possibility 
+that a future party might present “persuasive evidence . . . 
+of a long (if heretofore unrecognized) tradition” of content 
+regulation regarding additional categories of professional (or 
+other) speech that might likewise warrant only “diminished” 
+First Amendment protection. Id., at 767 (internal quotation 
+marks omitted); see also United States v. Stevens, 559 U. S. 
+460, 472 (2010). 
+Seeking to take up this challenge, Colorado contends that 
+its law falls within a long tradition of permissible content 
+regulation. It's a line of argument that comes with a daunt­
+ing burden. Under our precedents, the State must present 
+“persuasive” historical evidence in order to overcome our 
+“especia[l]” “reluctan[ce] to mark off new categories of 
+speech for diminished constitutional protection.” NIFLA, 
+585 U. S., at 767 (internal quotation marks omitted). Still, 
+Colorado insists, it can carry that burden in this case because 
+States have traditionally enjoyed wide latitude to proscribe 
+“substandard care” even when that involves regulating the 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+651 
+Opinion of the Court 
+content of speech. Brief for Respondents 16. As evidence, 
+Colorado points to the history of state laws licensing the 
+practice of medicine, regulating informed consent, and per­
+mitting tort suits for medical malpractice. Id., at 23–36. 
+The dissent pursues the same point citing the same authori­
+ties. See post, at 667–669, 683–689, 692 (opinion of Jackson, 
+J.) (suggesting that States may ban “substandard care” pro­
+vided “via speech” in light of licensing, informed consent, and 
+malpractice laws). 
+This argument stumbles out of the gate, for it proceeds at 
+far too high a level of generality. From three specifc sets 
+of laws, Colorado and the dissent ask us to recognize a cav­
+ernous “First Amendment Free Zone,” Stevens, 559 U. S., at 
+469 (internal quotation marks omitted), one in which States 
+may censor almost any speech they consider “substandard 
+care.” It is, once more, an approach our precedents al­
+ready foreclose. 
+Consider a couple examples. In Alvarez, the federal gov­
+ernment pointed to specifc, historical laws proscribing fraud 
+and defamation and asked us to extrapolate from them a 
+much broader rule allowing it to enforce content-based re­
+strictions on any “false statements.” In NIFLA, California 
+suggested that informed-consent laws and our speech­
+incident-to-conduct doctrine might be cobbled together to 
+sustain the recognition of a feld of “professional speech” sub­
+ject only to rational-basis review. We rejected both efforts, 
+stressing instead that discrete traditions of content-based 
+regulations cannot be aggregated together to sustain some 
+new and broader category of lesser-protected speech. Al­
+varez, 567 U. S., at 718–722 (plurality opinion); id., at 736 
+(Breyer, J., concurring in judgment); NIFLA, 585 U. S., at 
+767–768; see also Button, 371 U. S., at 439–440 (distinguish­
+ing State's law from laws proscribing accepted “common-law 
+offenses”); Florida Star v. B. J. F., 491 U. S. 524, 539 (1989) 
+(similar). And Colorado's similar effort can succeed no more 
+than others like it have in the past. 
+Page Proof Pending Publication
+
+652 
+CHILES v. SALAZAR 
+Opinion of the Court 
+Beyond that problem lies another. Taking each of the 
+three traditions Colorado and the dissent invoke on its own 
+terms—as we must—none delivers the support they suppose. 
+Start with Colorado's suggestion, endorsed by the dissent, 
+that the State's statute represents nothing more than a tra­
+ditional law licensing the practice of medicine. See Brief for 
+Respondents 27–28; post, at 683–685 (opinion of Jackson, J.). 
+We cannot agree for at least two reasons. First, the State 
+has not presented persuasive evidence that its law is part of 
+a historical tradition. When assessed at the level of gener­
+ality our precedents demand, what Colorado describes turns 
+out to be a relatively recent innovation. Indeed, the 
+briefng before us suggests that the very frst state “coun­
+selor-licensure bill” was adopted only in 1976. National 
+Academies, Institute of Medicine, Provision of Mental Health 
+Counseling Services Under TRICARE 94 (2010); D. Berg­
+man, The Role of Government and Lobbying in the Creation 
+of a Health Profession: The Legal Foundations of Counseling, 
+91 J. Counseling & Development 61 (2013) (Bergman); see 
+also Brief for Petitioner 42. And that is far from the sort 
+of “persuasive evidence” of a historically grounded practice 
+our precedents require. NIFLA, 585 U. S., at 767 (internal 
+quotation marks omitted). 
+Second, licensing laws have traditionally addressed what 
+qualifcations an individual must possess before practicing a 
+particular profession. See Bergman 62 (licensing laws gen­
+erally “establis[h] minimum standards of preparation and en-
+sur[e] the professional is qualifed”); R. Kry, The “Watchman 
+for Truth”: Professional Licensing and the First Amend­
+ment, 23 Seattle U. L. Rev. 885, 887 (2000) (a “licensure 
+scheme typically sets out certain requirements that the pro­
+fessional must fulfll before practicing”). And whatever tra­
+ditional interest a State may have in ensuring a professional 
+possesses a particular set of qualifcations, that interest does 
+not automatically entail a right to dictate a professional's 
+point of view. NIFLA, 585 U. S., at 773. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+653 
+Opinion of the Court 
+Turn now to Colorado's effort, again echoed by the dissent, 
+to compare its statute to informed-consent laws. See Brief 
+for Respondents 34–36; post, at 667–669 (opinion of Jackson, 
+J.). Those laws generally require a doctor to inform a pa­
+tient about “the nature of [a proposed] procedure” and its 
+attendant “risks.” NIFLA, 585 U. S., at 769–770 (internal 
+quotation marks omitted). As such, informedconsent laws 
+do not usually trigger strict scrutiny because they regulate 
+speech only incident to separate physical conduct that would, 
+“without [the] patient's consent,” amount to “an assault.” 
+Id., at 770 (internal quotation marks omitted). Usually, too, 
+informed-consent laws require practitioners to disclose only 
+factual and uncontroversial information. See id., at 769– 
+770. But all that is a far cry from how Colorado's law oper­
+ates here. As applied to Ms. Chiles, the State seeks neither 
+to regulate her speech incident to any conduct, nor does it 
+seek to compel disclosure of factual and uncontroversial in­
+formation. Instead, it seeks to silence a viewpoint she 
+wishes to express. 
+Colorado and the dissent close by asking us to analogize 
+the State's law to traditional tort malpractice claims. See 
+Brief for Respondents 25–26; post, at 685–686 (opinion of Jack­
+son, J.). But here again the differences are impossible to 
+ignore. In a traditional malpractice action, liability attaches 
+only if the plaintiff shows, among other things, that he has 
+suffered an injury caused by the defendant's breach of the 
+applicable duty of care. See, e. g., Day v. Johnson, 255 P. 3d 
+1064, 1068–1069 (Colo. 2011). Those kinds of “[e]xacting 
+proof requirements,” we have observed, may “provide suff­
+cient breathing room for protected speech.” Illinois ex rel. 
+Madigan v. Telemarketing Associates, Inc., 538 U. S. 600, 
+620 (2003). Yet Colorado's law contains nothing like them, 
+instead threatening individuals with fnes, probation, and the 
+loss of their licenses simply for expressing a particular view. 
+See §§ 12–245–202(3.5), 12–245–224(1)(t), 12–245–225. Nor 
+does Colorado's law allow clients to consent to practices that 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+654 
+CHILES v. SALAZAR 
+Opinion of the Court 
+depart from the prevailing standard of care, while malprac­
+tice law sometimes does. See Restatement (Third) of Torts: 
+Medical Malpractice § 11 (2024); Schneider v. Revici, 817 
+F. 2d 987, 995 (CA2 1987). 
+Consider, too, where the State and dissent's logic leads. 
+Not long ago, many medical experts and organizations, in­
+cluding the American Psychiatric Association, considered ho­
+mosexuality a mental disorder. See American Psychiatric 
+Association, Diagnostic and Statistical Manual of Mental Dis­
+orders 38–39 (1952); cf. American Psychiatric Association, 
+Position Statement on Homosexuality and Civil Rights, 131 
+Am. J. Psychiatry 497 (1974). On the view Colorado and the 
+dissent advance, a law adopted during that era prohibiting 
+counselors from engaging in the “substandard care” of af­
+frming their clients' homosexuality would have been subject 
+to only rational-basis or intermediate-scrutiny review—and 
+likely upheld. See 116 F. 4th, at 1237–1238 (Hartz, J., dis­
+senting). Today, tomorrow, and forever, too, any profes­
+sional speech that deviates from “current beliefs about the 
+safety and effcacy of various medical treatments” could be 
+silenced with relative ease. Post, at 681 (opinion of Jack­
+son, J.). It is a consequence Colorado freely acknowledges. 
+Tr. of Oral Arg. 61–63. And one the dissent embraces. 
+Post, at 681–683, and n. 9 (opinion of Jackson, J.). So what 
+if that kind of refexive deference to currently prevailing pro­
+fessional views may not always end well? Cf. Buck v. Bell, 
+274 U. S. 200, 205–207 (1927). 
+Fortunately, that is not the world the First Amendment 
+envisions for us. Licensed professionals “have a host of 
+good-faith disagreements” about the “prudence” and “ethics” 
+of various practices in their felds. NIFLA, 585 U. S., at 772. 
+Medical consensus, too, is not static; it evolves and always 
+has. A prevailing standard of care may refect what most 
+practitioners believe today, but it cannot mark the outer 
+boundary of what they may say tomorrow. Far from a test 
+
+Cite as: 607 U. S. 627 (2026) 
+655 
+Kagan, J., concurring 
+of professional consensus, the First Amendment rests in­
+stead on a simple truth: “[T]he people lose” whenever the 
+government transforms prevailing opinion into enforced con­
+formity. Ibid. 
+III 
+We do not doubt that the question “how best to help mi­
+nors” struggling with issues of gender identity or sexual ori­
+entation is presently a subject of “ferce public debate.” 
+Tingley v. Ferguson, 601 U. S. 955, 956 (2023) (Thomas, J., 
+dissenting from denial of certiorari). But Colorado's law ad­
+dressing conversion therapy does not just ban physical inter­
+ventions. In cases like this, it censors speech based on 
+viewpoint. Colorado may regard its policy as essential to 
+public health and safety. Certainly, censorious governments 
+throughout history have believed the same. But the First 
+Amendment stands as a shield against any effort to enforce 
+orthodoxy in thought or speech in this country. It refects 
+instead a judgment that every American possesses an in­
+alienable right to think and speak freely, and a faith in the 
+free marketplace of ideas as the best means for discovering 
+truth. However well-intentioned, any law that suppresses 
+speech based on viewpoint represents an “egregious” assault 
+on both of those commitments. Rosenberger, 515 U. S., 
+at 829. 
+The judgment of the Tenth Circuit is reversed, and the 
+case remanded for further proceedings consistent with this 
+opinion. 
+It is so ordered. 
+Justice Kagan, with whom Justice Sotomayor joins, 
+concurring. 
+The Court today decides that the Colorado law challenged 
+here, as applied to talk therapy, conficts with core First 
+Amendment principles because it regulates speech based on 
+viewpoint. See ante, at 655. I agree. I write only to note 
+Page Proof Pending Publication
+
+656 
+CHILES v. SALAZAR 
+Kagan, J., concurring 
+that if Colorado had instead enacted a content-based but 
+viewpoint-neutral law, it would raise a different and more 
+diffcult question. 
+As the Court states, governments must “nearly always” 
+abstain from adopting viewpoint-based restrictions. Ante, 
+at 641. Those laws represent a particularly “egregious 
+form” of content-based regulation, implicating First Amend­
+ment concerns to the highest possible degree. Ibid.; see 
+Iancu v. Brunetti, 588 U. S. 388, 393 (2019). A law drawing 
+a line based on the “ideology” of the speaker—disadvantag­
+ing one view and advantaging another—skews the market­
+place of ideas our society depends on to discover truth. Ro­
+senberger v. Rector and Visitors of Univ. of Va., 515 U. S. 
+819, 829 (1995). And such a law suggests an impermissible 
+motive—that the government is regulating speech because 
+of its own “hostility” toward the targeted messages. R. A. V. 
+v. St. Paul, 505 U. S. 377, 386 (1992). If the First Amend­
+ment prohibits anything, it is the “offcial suppression of 
+ideas.” Id., at 390; see Reed v. Town of Gilbert, 576 U. S. 
+155, 181–183 (2015) (Kagan, J., concurring in judgment). Be­
+cause viewpoint-based laws always raise that specter, they 
+are the most suspect of all speech regulations. So much so 
+that this Court has refused to permit viewpoint discrimina­
+tion even within unprotected categories of speech, like fght­
+ing words or obscenity. See R. A. V., 505 U. S., at 384–390. 
+Colorado's law, as applied to talk therapy, regulates based 
+on viewpoint, for the reasons the Court gives. See ante, 
+at 645–646. The law forbids a counselor to provide therapy 
+designed to “change [a minor's] sexual orientation or gender 
+identity.” Colo. Rev. Stat. § 12–245–202(3.5)(a) (2025); see 
+§ 12–245–224(1)(t)(V). At the same time, the law specifcally 
+allows a counselor to offer therapy expressing “[a]cceptance, 
+support,” and other affrmation of the minor's “identity ex­
+ploration.” § 12–245–202(3.5)(b)(I)–(II). So, for example, 
+the law prevents a therapist from saying she can help a 
+minor change his same-sex orientation, but permits her to 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+657 
+Kagan, J., concurring 
+say that such a goal is impossible and so she will help him 
+accept his gay identity. Colorado does not dispute that 
+point. See Tr. of Oral Arg. 78. Nor does it dispute that 
+under normal First Amendment principles, that difference 
+constitutes viewpoint discrimination. See ibid. Indeed, 
+the case is textbook. The law “distinguishes between two 
+opposed sets of ideas”—the one resisting, the other refect­
+ing, the State's own view of how to speak with minors about 
+sexual orientation and gender identity. Iancu, 588 U. S., at 
+394. Or said just a bit differently, the law draws a line based 
+on the speaker's “opinion or perspective,” and thus enables 
+“speech on only one side”—the State's preferred side—of an 
+ideologically charged issue. Rosenberger, 515 U. S., at 829; 
+McCullen v. Coakley, 573 U. S. 464, 485 (2014). 
+Of course, it does not matter what the State's preferred 
+side is. Consider a hypothetical law that is the mirror 
+image of Colorado's. Instead of barring talk therapy de­
+signed to change a minor's sexual orientation or gender iden­
+tity, this law bars therapy affrming those things. As Ms. 
+Chiles readily acknowledges, the First Amendment would 
+apply in the identical way. See Tr. of Oral Arg. 25–26; see 
+also id., at 37–38 (United States as amicus curiae agreeing). 
+Once again, because the State has suppressed one side of a 
+debate, while aiding the other, the constitutional issue is 
+straightforward. 
+It would, however, be less so if the law under review was 
+content based but viewpoint neutral. Such content-based 
+laws, as the Court explains, trigger strict scrutiny “[a]s a 
+general rule.” Ante, at 640. But our precedents respecting 
+those laws recognize complexity and nuance. We apply our 
+most demanding standard when there is any “realistic possi­
+bility that offcial suppression of ideas is afoot”—when, that 
+is, a (merely) content-based law may reasonably be thought 
+to pose the dangers that viewpoint-based laws always do. 
+Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 
+(2007); see supra, at 656. But when that is not the case— 
+Page Proof Pending Publication
+
+658 
+CHILES v. SALAZAR 
+Kagan, J., concurring 
+when a law, though based on content, raises no real concern 
+that the government is censoring disfavored ideas—then we 
+have not infrequently “relax[ed] our guard.” Reed, 576 
+U. S., at 183 (opinion of Kagan, J.); see Davenport, 551 U. S., 
+at 188 (noting the “numerous situations in which [the] risk” 
+of a content-based law “driv[ing] certain ideas or viewpoints 
+from the marketplace” is “attenuated” or “inconsequential, 
+so that strict scrutiny is unwarranted”). Just two Terms 
+ago, for example, the Court declined to apply strict scrutiny 
+to a content-based but viewpoint-neutral trademark restric­
+tion. See Vidal v. Elster, 602 U. S. 286, 295 (2024); id., at 
+312 (Barrett, J., concurring in part); id., at 329–330 (Soto­
+mayor, J., concurring in judgment). In the trademark con­
+text, as in some others, experience and reason alike showed 
+“no signifcant danger of idea or viewpoint” bias. R. A. V., 
+505 U. S., at 388. 
+The same may well be true of content-based but 
+viewpoint-neutral laws regulating speech in doctors' and 
+counselors' offces.* Medical care typically involves speech, 
+so the regulation of medical care (which is, of course, perva­
+sive) may involve speech restrictions. And those restric­
+tions will generally refer to the speech's content. Cf. Reed, 
+576 U. S., at 177 (Breyer, J., concurring in judgment) (noting 
+that “[r]egulatory programs” addressing speech “inevitably 
+involve content discrimination”). But laws of that kind may 
+not pose the risk of censorship—of “offcial suppression of 
+ideas”—that appropriately triggers our most rigorous re­
+view. R. A. V., 505 U. S., at 390. And that means the “dif­
+*Justice Jackson's dissenting opinion claims that this is a small, or 
+even nonexistent, category. See post, at 679–680, n. 8. But even her own 
+opinion, when listing laws supposedly put at risk today, offers quite a few 
+examples. See post, at 689–690, and n. 13. Her view to the contrary 
+rests on reimagining—and in that way collapsing—the well-settled distinc­
+tion between viewpoint-based and other content-based speech restrictions. 
+See, e. g., Vidal v. Elster, 602 U. S. 286, 292–293 (2024) (explaining the 
+difference). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+659 
+Jackson, J., dissenting 
+ference between viewpoint-based and viewpoint-neutral con­
+tent discrimination” in the health-care context could prove 
+“decisive.” Vidal, 602 U. S., at 330 (opinion of Sotomayor, 
+J.). Fuller consideration of that question, though, can wait 
+for another day. We need not here decide how to assess 
+viewpoint-neutral laws regulating health providers' expres­
+sion because, as the Court holds, Colorado's is not one. 
+Justice Jackson, dissenting. 
+“[T]here is no right to practice medicine which is not sub­
+ordinate to the police power of the States.” Lambert v. Yel­
+lowley, 272 U. S. 581, 596 (1926). This was true 100 years 
+ago, and it should be true today. 
+Many States have now chosen to exercise their police pow­
+ers to ban “conversion therapy” based on the medical profes­
+sion's broad consensus that this medical treatment (which 
+seeks to change a gay or transgender person's sexual orienta­
+tion or gender identity) is ineffective and harmful. This 
+case involves the Colorado Legislature's policy decision to 
+prohibit licensed medical professionals from offering or pro­
+viding conversion therapy to minors in that State. 
+Petitioner Kaley Chiles is a licensed counselor who works 
+in the State of Colorado. She does not dispute that conver­
+sion therapy can be harmful to minors in certain circum­
+stances. Nor does she contest that Colorado has a signif­
+cant interest in protecting minors from harm. Chiles 
+complains nevertheless that, because the particular form of 
+conversion therapy she wants to offer clients utilizes only 
+speech, the First Amendment prevents Colorado from pro­
+hibiting that treatment. But “[t]he power of government to 
+regulate the professions is not lost whenever the practice of 
+a profession entails speech.” Lowe v. SEC, 472 U. S. 181, 
+228 (1985) (White, J., concurring in result). And “[m]edical 
+professionals do not, generally speaking, have a right to use 
+the Constitution as a weapon allowing them rigorously to 
+control the content of . . . reasonable conditions” that a State 
+Page Proof Pending Publication
+
+660 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+imposes on licensed healthcare providers for the protection 
+of its residents. National Institute of Family and Life Ad­
+vocates v. Becerra, 585 U. S. 755, 785 (2018) (Breyer, J., 
+dissenting) (NIFLA). 
+So, I respectfully dissent. Stated simply, the majority has 
+failed to appreciate the crucial context in which Chiles's con­
+stitutional claims have arisen. Chiles is not speaking in the 
+ether; she is providing therapy to minors as a licensed 
+healthcare professional. The Tenth Circuit was correct to 
+observe that “[t]here is a long-established history of states 
+regulating the healthcare professions.” 116 F. 4th 1178, 
+1206 (2024). And, until today, the First Amendment has not 
+blocked their way. For good reason: Under our precedents, 
+bedrock First Amendment principles have far less salience 
+when the speakers are medical professionals and their 
+treatment-related speech is being restricted incidentally to 
+the State's regulation of the provision of medical care. 
+No one directly disputes that Colorado has the power to 
+regulate the medical treatments that state-licensed profes­
+sionals provide to patients. Nor is it asserted that, when 
+doing so, a State always runs afoul of the Constitution. So, 
+in my view, it cannot also be the case that Colorado's decision 
+to restrict a dangerous therapy modality that, incidentally, 
+involves provider speech is presumptively unconstitutional. 
+In concluding otherwise, the Court's opinion misreads our 
+precedents, is unprincipled and unworkable, and will eventu­
+ally prove untenable for those who rely upon the long-
+recognized responsibility of States to regulate the medical 
+profession for the protection of public health. 
+I 
+To properly evaluate the First Amendment claim at issue 
+in this case, one must frst understand the impetus for Colo­
+rado's regulation, what that law requires, and the nature of 
+the speech it implicates. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+661 
+Jackson, J., dissenting 
+A 
+Conversion therapy is designed to “convert” a person's 
+sexual orientation or gender identity, so that the person will 
+become heterosexual or cisgender. Generally speaking, con­
+version therapy began as an attempt to “cure” gay and trans­
+gender people of their “nonconforming” orientations or iden­
+tities. Brief for American Psychological Association et al. 
+as Amici Curiae 13. 
+Conversion-therapy efforts have historically included 
+aversive therapeutic modalities. Those ranged from induc­
+ing nausea, vomiting, or paralysis in patients or subjecting 
+them to severe electric shocks to telling patients to snap an 
+elastic band on their wrists in response to nonconforming 
+thoughts. Aversive therapies have now fallen out of fash­
+ion; nonaversive treatments—primarily, talk therapy—are 
+currently the predominant form of conversion therapy. All 
+such therapies seek to encourage patients to change their 
+behavior in an attempt to “change” their identity. 
+Over the past few decades, however, the premise of con­
+version therapy (in whatever form) has been widely discred­
+ited within the medical and scientifc community. Conver­
+sion therapy is, at bottom, “based on a view of gender 
+diversity that runs counter to scientifc consensus.” Sub­
+stance Abuse and Mental Health Services Administration 
+(SAMHSA) Report, 2 App. 570. That is, contrary to the 
+core beliefs that undergird conversion therapy, a robust pro­
+fessional consensus now acknowledges that sexual orienta­
+tions and gender identities range widely. And it no longer 
+regards nonheterosexual orientations or noncisgender identi­
+ties as “nonconforming.” 
+Because people's identities are simply “a part of the nor­
+mal spectrum of human diversity,” id., at 535, the medical 
+community has determined that efforts to change a patient's 
+sexual orientation or gender identity will necessarily be inef­
+fective. The American Psychological Association (APA), for 
+Page Proof Pending Publication
+
+662 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+example, has found “no empirical evidence that providing 
+any type of therapy in childhood can alter adult same-sex 
+sexual orientation.” APA Report, 1 App. 360. And “[n]o 
+research has been published in the peer-reviewed literature 
+that demonstrates the effcacy of conversion therapy efforts 
+with gender minority youth, nor any benefts of such inter­
+ventions to children and their families.” SAMHSA Report, 
+2 App. 569. 
+Not only is conversion therapy ineffective, former partici­
+pants of conversion therapy report that it causes lasting psy­
+chological harm. Gay and transgender children who under­
+went nonaversive conversion therapy say they were taught 
+to feel shame and self-hatred. See Brief for Conversion 
+Therapy Survivor Network et al. as Amici Curiae 11–14. 
+And survivors of conversion therapy continue to suffer from 
+PTSD, anxiety, and suicidal ideation. Id., at 19–22. As one 
+survivor put it, conversion therapy “ `came close to killing 
+me.' ” Id., at 17.1 
+The scientifc literature confrms what anecdotal experi­
+ences suggest: Conversion therapy has harmed patients, par­
+ticularly minors. The APA found that “the reported nega­
+1 Consider a specifc example: An amicus who received conversion 
+therapy as a child, Mathew Shurka, was told that his sexual orientation 
+was a disorder either rooted in childhood trauma or stemming from an 
+overbearing mother or absent father. Brief for Mathew Shurka as Ami­
+cus Curiae 6. In the course of this therapy, Mathew's therapist said that 
+being gay was a mental illness that could be cured and that, unless he was 
+cured, he could never live a happy and fulflled life. Id., at 3. Mathew's 
+conversion therapists eventually hypothesized that his mother was the 
+source of his sexual orientation and instructed him to avoid speaking with 
+her. Id., at 8. For three years, he had barely any contact with his 
+mother. Ibid. The years of conversion therapy brought Mathew nothing 
+but increased isolation from his family, worsening depression, and suicidal 
+ideation. Id., at 11. Thus, as Mathew's experience illustrates, the harm 
+from conversion therapy extends to the patient's family. See also Brief 
+for Parents of Conversion-Therapy Participants et al. as Amici Curiae 9– 
+19 (describing the impact of conversion therapy on amici's families, includ­
+ing the loss of loved ones to suicide). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+663 
+Jackson, J., dissenting 
+tive social and emotional consequences [of conversion 
+therapy] include self-reports of anger, anxiety, confusion, de­
+pression, grief, guilt, hopelessness, deteriorated relation­
+ships with family, loss of social support, loss of faith, poor 
+self-image, social isolation, intimacy diffculties, intrusive im­
+agery, suicidal ideation, self-hatred, and sexual dysfunction.” 
+APA Report, 1 App. 253–254. Even for those study partici­
+pants who reported positive effects initially, many described 
+experiencing the negative effects later. Id., at 254. More­
+over, studies show that children often feel the effects of the 
+shame and stigma from conversion therapy even more viv­
+idly than adults due to their “increased emotional vulnerabil­
+ity and less developed capacity to cope effectively with the 
+harm of discrimination.” Glassgold Decl., 1 App. 53–54, 
+¶ 50. 
+Ultimately, scientifc evidence supports the conclusion that 
+the anticipated harms from conversion therapy are twofold. 
+First, conversion therapy stigmatizes the patient, telling 
+them that their gender identity or sexual orientation is 
+something to be fxed, rather than accepted. This rejection 
+can lead to shame and guilt, which in turn can cause long­
+term emotional distress. Second, conversion therapy sets 
+patients up to fail by giving them an unattainable goal. 
+Some patients have described that experience of failure “as 
+a signifcant cause of emotional and spiritual distress and 
+negative self-image.” Id., at 63, ¶ 66. 
+B 
+In 2019, Colorado joined 25 other States in banning the 
+practice of conversion therapy for minors. Colorado's law— 
+titled the Minor Conversion Therapy Law (MCTL)—prohib­
+its licensed healthcare professionals from practicing conver­
+sion therapy with children. It defnes conversion therapy 
+as “any practice or treatment” that “attempts or purports to 
+change an individual's sexual orientation or gender identity, 
+including efforts to change behaviors or gender expressions 
+Page Proof Pending Publication
+
+664 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+or to eliminate or reduce sexual or romantic attraction or 
+feelings toward individuals of the same sex.” Colo. Rev. 
+Stat. § 12–245–202(3.5)(a) (2025).2 
+Not all therapeutic discussions of sexuality and gender 
+identity are prohibited by the MCTL. The law allows 
+“practices or treatments that provide: 
+“(I) Acceptance, support, and understanding for the 
+facilitation of an individual's coping, social support, and 
+identity exploration and development, including sexual-
+orientation-neutral interventions to prevent or address 
+unlawful conduct or unsafe sexual practices, as long as 
+the counseling does not seek to change sexual orienta­
+tion or gender identity; or 
+“(II) Assistance to a person undergoing gender tran­
+sition.” § 12–245–202(3.5)(b). 
+The Colorado Legislature made these allowances after 
+crediting witness testimony and the professional consensus 
+about conversion therapy—namely, that it is harmful, and 
+that the preferred treatment for minors relating to their sex­
+ual orientation and gender identity is affrming care (i. e., 
+medical care that helps minors focus on acceptance, support, 
+coping, and identity exploration and development). Prohibit 
+Conversion Therapy for a Minor: Hearing on H. B. 19–1129 
+before the House Committee on Public Health Care & Hum. 
+Servs., 2019 Leg., 72d Gen. Sess. (Colo., Feb. 13, 2019). 
+C 
+Chiles insists that, although she is a counselor licensed by 
+Colorado, she has a constitutional right to fout Colorado's 
+2 The MCTL primarily applies to licensed healthcare professionals; such 
+professionals are already subject to a number of other restrictions on their 
+professional practice. Most relevant here, under Colorado law, licensed 
+therapists must provide therapy that is consistent with the standard of 
+care, defned as “the standards of practice generally recognized by state 
+and national associations of practitioners in the feld of the person's profes­
+sional discipline.” Colo. Rev. Stat. § 12–245–224(1)(g)(I). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+665 
+Jackson, J., dissenting 
+statute and the standard of care it incorporates if a client 
+asks her to do so. Never mind that medical professionals— 
+including counselors like Chiles—are generally bound to fol­
+low medical standards and state licensing requirements 
+when they provide medical care to patients. Chiles wants 
+to offer patients conversion therapy despite the MCTL and 
+the medical consensus it refects. So she has invoked the 
+First Amendment, arguing that, because talk therapy is 
+speech, no State can impose treatment standards like the 
+MCTL on licensed talk therapists without frst satisfying 
+heightened scrutiny. 
+As applied to Chiles, the MCTL treats the talk-therapy 
+form of conversion therapy as a prohibited medical treat­
+ment. But Chiles is free to express her opinion about the 
+effcacy of conversion therapy or her disagreement with Col-
+orado's conclusion that such therapy is harmful to minors. 
+Colorado's law does not target or prohibit the expression of 
+such views by anyone in any form—including by licensed 
+healthcare providers in discussions with patients and their 
+families. All that Colorado's law proscribes is the provision 
+of such therapy to minors. This means that, while Chiles 
+can freely promote conversion therapy and vociferously 
+decry the State's prohibition, she cannot practice that ther­
+apy without being subject to professional discipline under 
+Colorado law. 
+II 
+I begin my analysis with a simple observation: Our First 
+Amendment jurisprudence does not treat speech as existing 
+in a vacuum. Instead, how the First Amendment applies to 
+a State's power to regulate speech depends upon the context 
+in which the regulation of speech occurs. See, e. g., Vidal v. 
+Elster, 602 U. S. 286 (2024) (trademark context); Tinker v. 
+Des Moines Independent Community School Dist., 393 U. S. 
+503 (1969) (school context). We have not mechanically held 
+that the First Amendment protects all communicative con­
+tent; rather, we have evaluated First Amendment claims in 
+Page Proof Pending Publication
+
+666 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+a nuanced way, sensitive to both core principles and the spe­
+cifc circumstances under which the claim arises. See, e. g., 
+Virginia Bd. of Pharmacy v. Virginia Citizens Consumer 
+Council, Inc., 425 U. S. 748, 758, 762–770 (1976) (considering 
+First Amendment principles in the commercial speech 
+context). 
+In my view, then, it matters for First Amendment pur­
+poses that the MCTL restricts treatment-related speech 
+uttered by medical professionals only as part of a larger reg­
+ulatory scheme aimed at ensuring that providers tender 
+high-quality medical care to patients. 
+In Part II–A, I explain that this way of conceptualizing 
+the question before us is not novel—we have long understood 
+that States have the power to regulate medical professionals. 
+And our precedents demonstrate that, when a healthcare 
+provider's speech is incidentally restricted as part of a state-
+law scheme regulating the provision of medical treatments, 
+the heightened scrutiny we refexively apply in other situa­
+tions is not warranted. In Part II–B, I show that First 
+Amendment principles are not offended when lesser scrutiny 
+is applied to a state law regulating medical treatments in a 
+manner that incidentally restricts a provider's professional 
+medical speech. 
+A 
+1 
+A case that we decided in 2018—NIFLA—shows us the 
+way to determine the appropriate level of constitutional scru­
+tiny here. 585 U. S. 755. In that case, we began by explain­
+ing that “[s]peech is not unprotected merely because it is 
+uttered by `professionals.' ” Id., at 767; see also ante, at 642– 
+643, 646–647. But, critically, we also acknowledged that the 
+Court has afforded less protection for professional speech in 
+two circumstances—one of which occurs when a State “regu­
+late[s] professional conduct, even though that conduct inci­
+dentally involves speech.” NIFLA, 585 U. S., at 768; see 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+667 
+Jackson, J., dissenting 
+ante, at 643. This acknowledgement was grounded in an al­
+ready well-established principle: “[T]he First Amendment 
+does not prevent restrictions directed at . . . conduct from 
+imposing incidental burdens on speech.” Sorrell v. IMS 
+Health Inc., 564 U. S. 552, 567 (2011). 
+To further explain the contours of this presumptively per­
+missible speech restriction, NIFLA cited Planned Parent­
+hood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). In 
+Casey, the Court assessed “an asserted First Amendment 
+right of a physician not to provide information about the 
+risks of abortion, and childbirth, in a manner mandated by 
+the State.” Id., at 884 (joint opinion of O'Connor, Kennedy, 
+and Souter, JJ.). More specifcally, Casey involved a chal­
+lenge to a Pennsylvania law requiring that “a doctor give a 
+woman certain information as part of obtaining her consent 
+to an abortion.” Ibid.3 
+We held that Pennsylvania's 
+informed-consent mandate did not violate the First Amend­
+ment. “To be sure, the physician's First Amendment rights 
+not to speak [were] implicated” by Pennsylvania's law. Ibid. 
+But we emphasized that those rights were implicated “only 
+as part of the practice of medicine, subject to reasonable 
+licensing and regulation by the State.” Ibid. (emphasis 
+added). Thus, there was “no constitutional infrmity in the 
+requirement that the physician provide the information man­
+dated by the State.” Ibid. 
+In NIFLA, we reaffrmed the principle from Casey that 
+the First Amendment inquiry requires consideration of 
+whether the regulated speech was made during the provision 
+of medical care. NIFLA involved a challenge to a California 
+law that required certain crisis pregnancy centers to post 
+notices in their waiting rooms informing low-income patients 
+3 The First Amendment challenge to Pennsylvania's law in Casey was 
+effectively the fipside of the one Chiles brings here: While the doctors in 
+Casey complained that Pennsylvania was forcing them to speak when they 
+did not want to, Chiles asserts that Colorado is preventing her from saying 
+what she wants to say. 
+Page Proof Pending Publication
+
+668 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+that California paid for qualifying abortions. 585 U. S., at 
+762–763. We asked whether, on the one hand, this law was 
+regulating the clinics' speech qua speech, or whether, on the 
+other, the notice requirement was actually regulating the 
+clinics' professional conduct and only incidentally restricting 
+speech. If the latter, the NIFLA Court explained, Califor­
+nia's notice requirement would ft into the category of cases 
+that Casey illustrated; namely, those in which “this Court 
+has upheld regulations of professional conduct that inciden­
+tally burden speech.” 585 U. S., at 769. 
+Relying in part on Casey's analytical framework, the 
+NIFLA Court held that California's law regulated “speech 
+as speech.” 585 U. S., at 770. We explained this conclusion 
+by contrasting the Pennsylvania regulation at issue in Casey: 
+While the notice requirement in Casey restricted doctors' 
+speech, it did so “only `as part of the practice of medicine.' ” 
+585 U. S., at 770. The notice requirement at issue in 
+NIFLA, by contrast, was “not an informed-consent require­
+ment or any other regulation of professional conduct.” Ibid. 
+“In fact,” California's notice was “not tied to a procedure at 
+all. It applie[d] to all interactions between a covered facil­
+ity and its clients, regardless of whether a medical procedure 
+[was] ever sought, offered, or performed.” Ibid. (emphasis 
+added). So, we reasoned, unlike Pennsylvania's informed-
+consent requirement in Casey, California's notice mandate 
+warranted heightened scrutiny because it “regulate[d] 
+speech as speech.” 585 U. S., at 770. 
+The takeaway from NIFLA is that Casey applied a lower 
+level of scrutiny because the law in Casey restricted speech 
+uttered in the course of—and as a part of—providing profes­
+sional medical care. By contrast, the notice requirement in 
+NIFLA was not “tied to a procedure at all” and was there­
+fore meaningfully different: That law restricted “speech as 
+speech.” 585 U. S., at 770. Thus, the key distinction, as the 
+NIFLA Court saw it, was whether the challenged law was a 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+669 
+Jackson, J., dissenting 
+regulation of speech as such or a regulation of “professional 
+conduct that incidentally burden[ed] speech.” Id., at 769. 
+2 
+Given all this, one might think today's majority would 
+make more of an effort to explain why the MCTL does not 
+likewise qualify as a regulation of “professional conduct that 
+incidentally burden[s] speech.” Ibid.; see ante, at 646–650. 
+Such an inquiry would entail evaluating whether the MCTL's 
+restriction on Chiles's therapy only “incidentally” restricts 
+Chiles's speech by virtue of the fact that the medical care 
+she provides is delivered orally. It would also require ac­
+knowledging that the MCTL's restriction on Chiles is plainly 
+“tied to [the provision of] a [medical] procedure,” NIFLA, 
+585 U. S., at 770—one that, but for Colorado's law, a licensed 
+counselor like Chiles might offer to minors. 
+In my view, it is obvious that the MCTL is regulating pro­
+fessional conduct insofar as it prohibits providing a particu­
+lar therapy; the aim of the statute is not suppressing speech. 
+Indeed, Chiles's claim that her (otherwise protected) speech 
+is being swept up by Colorado's (otherwise valid) treatment 
+prohibition proves that very point. This set of circum­
+stances seems to ft NIFLA's idea of permissible state “regu­
+lation of professional conduct” that “incidentally burdens 
+speech” to a “T.” 
+Yet, the majority strangely suggests otherwise with the 
+opinion it hands down today. Ante, at 646–650. The major­
+ity does this primarily by eschewing serious engagement 
+with the interaction between NIFLA and Casey. Its work­
+around seems to be: The First Amendment applies full bore 
+here because Chiles's speech is being impacted; after all, she 
+is a talk therapy provider. Ante, at 644–650. But when 
+NIFLA's teachings are properly understood, this comeback is 
+no answer. Yes, Chiles happens to be talking when she's pro­
+viding therapy to patients, but the MCTL regulates the provi­
+Page Proof Pending Publication
+
+670 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+sion of medical treatments by licensed medical professionals, 
+which States are fully empowered to do. That Chiles's kind 
+of medical care involves talk therapy is, in NIFLA's words, 
+merely “incidenta[l].” 585 U. S., at 769. 
+I am the frst to admit that, as applied to talk therapists 
+like Chiles, the MCTL restricts speech—I do not argue that 
+this law really just limits Chiles's professional conduct. See 
+ante, at 644–645, 647–648 (characterizing Colorado's argu­
+ment). Similarly, I do not maintain that, because this law 
+primarily regulates talk-therapists' professional conduct, it 
+should not be conceived of as a speech restriction. See ante, 
+at 649. I agree with the majority that, in cases like Cohen 
+v. California, 403 U. S. 15 (1971), we frmly rejected a State's 
+attempt to suppress free speech by calling the restricted ex­
+pression “conduct.” Ante, at 648–649. But, here, the ob­
+servation that the MCTL indeed restricts Chiles's “speech” 
+(not reformulated as conduct) just raises the question that 
+this case presents: Whether the MCTL is restricting Chiles's 
+speech “incidentally” to its regulation of medical profession­
+als' treatment-related conduct, such that the law warrants 
+less scrutiny under the First Amendment than a law that re­
+stricts her speech “as speech.” NIFLA, 585 U. S., at 769–770. 
+The majority's failure to acknowledge that this is the ac­
+tual issue here—not just whether Chiles's “speech” or “con­
+duct” is being restricted, but what the State is doing— 
+ignores what has always been true under our precedents. 
+The real lesson of NIFLA's discussion of Casey is this: When 
+a healthcare professional's speech is not being targeted “as 
+speech” (because it conveys an idea) but is instead “inciden­
+tally” restricted due to a State's otherwise legitimate regula­
+tion of the medical treatments being offered to patients, 
+heightened scrutiny is not warranted. 585 U. S., at 769–770; 
+Casey, 505 U. S., at 884 (joint opinion of O'Connor, Kennedy, 
+and Souter, JJ.). 
+3 
+NIFLA's focus on a State's regulation of medical treat­
+ments also undermines the position the United States has 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+671 
+Jackson, J., dissenting 
+taken on today's First Amendment question. The United 
+States, joining this case as amicus curiae, insists, in essence, 
+that when the NIFLA Court acknowledged that States can 
+regulate professional conduct while “incidentally” restrict­
+ing speech, it was blessing only two circumstances: (1) where 
+the speech that is being restricted is inextricably tied to an 
+act of the speaker (so, speech-only therapists are never in­
+cluded), or (2) where speech is being regulated in a manner 
+entirely unrelated to its content. Brief for United States as 
+Amicus Curiae 17–21; see ante, at 643, 647–649. But, under 
+NIFLA's reasoning, that cannot be so—at least not logically. 
+With respect to the frst category, the United States mis­
+takenly swaps “integral” (i. e., whether the restricted speech 
+is bound up with the regulated conduct) for “incidental”— 
+but these are two completely different concepts.4 
+Given 
+NIFLA's focus on the “incidental” nature of the challenged 
+speech restriction, the State's objective is the actual fulcrum: 
+We ask whether, on the one hand, the State's law is restrict­
+ing the provider's speech “incidentally” (meaning in the 
+4 Under the reading the United States advocates, the line between per­
+missible and impermissible state regulation seems to turn on the relation­
+ship between the restricted speech and a physical act of the speaker. See 
+Tr. of Oral Arg. 35–36. So, the argument goes, the First Amendment 
+allows state regulation if the speech restriction is “incidental” to a physi­
+cal act of the healthcare provider, but prohibits it if there is no physical 
+act for the speech to be “incidental” to because the provider treats pa­
+tients solely with speech. See id., at 35 (“[T]his Court hasn't drawn a 
+particularly clear line about when speech is close enough to conduct to be 
+viewed as incidental, but, here, again, this is an easy case because there 
+is no conduct”); id., at 33 (emphasizing that, because Chiles is a talk thera­
+pist, “[t]here's no separate non-speech conduct being regulated here”); see 
+also Brief for United States as Amicus Curiae 24, 26 (noting that “regula­
+tions of the mental-health profession are less likely to qualify as `inciden­
+tal' burdens on speech . . . because much mental-health treatment is con­
+ducted using only speech”). This logic rests upon the integral nature of 
+the speech to the conduct that is being regulated. But that is different 
+from—and says nothing about—whether the speech is being regulated “in­
+cidentally,” which is the line that NIFLA draws. See National Institute 
+of Family and Life Advocates v. Becerra, 585 U. S. 755, 769–770 (2018). 
+Page Proof Pending Publication
+
+672 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+course of the State's pursuit of its primary objective of regu­
+lating the provision of medical care), or whether, on the 
+other, the State's law is restricting her speech “as speech” 
+(primarily to suppress its message or expressive content). 
+585 U. S., at 769–770. The appropriate scrutiny level logi­
+cally follows: Incidentally restricting speech needs less scru­
+tiny because we view the State as generally regulating the 
+provision of medical care, while restricting “speech as 
+speech” receives heightened scrutiny because the State is 
+aiming at professional speech qua speech. 
+The second “speech incident to conduct” category the 
+United States advances—whether the restriction on speech 
+is unrelated to its content—is also fatally fawed. It ignores 
+what NIFLA plainly recognizes: that States can regulate the 
+medical treatments healthcare professionals provide to pa­
+tients without running afoul of the First Amendment, even 
+if the regulation applies to and restricts speech based on 
+its content. 585 U. S., at 769–770. In other words, what 
+mattered to NIFLA's analysis was not that the regulation 
+was content-based, but instead that the speech was being 
+restricted incidentally. 
+So it is here. Talk therapy is a medical treatment. 116 
+F. 4th, at 1206, 1208–1210. So, why wouldn't such speech-
+based medical treatments be subject to reasonable state reg­
+ulation like any other kind of medical care? The United 
+States and the majority just insist that a law that undertakes 
+to regulate speech-based medical treatments is presump­
+tively unconstitutional because the treatment is being 
+administered solely through speech. But that reasoning 
+is maddeningly circular, and it is based on happenstance, 
+not logic. Even more important, it is not the rationale upon 
+which NIFLA's analysis relies. To the contrary, with 
+its description of Casey, NIFLA recognizes precisely the 
+opposite—a State can regulate professionals' treatment-
+related conduct even if doing so impacts treatment-related 
+speech. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+673 
+Jackson, J., dissenting 
+Again, what distinguished NIFLA from Casey was the fact 
+that Pennsylvania's speech-related mandate was aimed at 
+regulating the provision of medical treatments to patients; 
+the fact that the particular medical treatment at issue in 
+Casey involved a physical (instead of a verbal) act was of 
+no moment. NIFLA, 585 U. S., at 769–770. The reading of 
+NIFLA the United States favors—which the majority ap­
+pears to endorse in part, see ante, at 649–650—is irrational 
+because, for purposes of the State's regulation of harmful 
+professional conduct, treatments administered through 
+words versus treatments administered through acts are not 
+meaningfully different.5 
+By contrast, NIFLA's actual line marks a real, constitu­
+tionally relevant distinction: Restrictions of speech that 
+occur when a State undertakes to regulate the treatments 
+that professionals provide to patients are merely “inciden­
+tal”; they are materially different from speech restrictions 
+that are not “tied to a [medical] procedure at all.” 585 U. S., 
+at 769–770; cf. Black's Law Dictionary 686 (5th ed. 1979) (de­
+fning “incidental” as “[d]epending upon or appertaining to 
+something else as primary,” such as “something incidental to 
+the main purpose”). The latter warrants strict scrutiny 
+since the State is regulating “speech as speech,” while in the 
+former case—where the State is merely restricting speech 
+due to its regulation of medical treatments—heightened 
+scrutiny is not needed. 585 U. S., at 770. 
+The “speech incident to conduct” doctrine thus ably bal­
+ances the interests at stake by accommodating a State's tra­
+5 The majority appears to adopt a theory of the “speech incident to con­
+duct” doctrine that is analytically similar to, but ultimately narrower than, 
+the recitation adopted by the United States. Ante, at 649–650. But, just 
+like the United States, the majority fails to account for NIFLA's conceptu­
+alization of the doctrine as turning on the State's objectives. Indeed, the 
+majority's analysis offers no cohesive narrative to explain either why this 
+exception to heightened scrutiny exists or how—like all exceptions—it 
+operates to consistently effect a balance of the public's interests (here, 
+free speech and the personal safety that medical standards secure). 
+
+674 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+ditional police power to regulate the practice of medicine 
+for the protection of its residents while also ensuring 
+that speech is not being targeted. As we explained in 
+NIFLA, that doctrine recognizes that the treatments pro­
+vided by licensed medical professionals can be prohib­
+ited even if, by doing so, the State incidentally restricts 
+those providers' speech. Id., at 769–770. This is constitu­
+tionally permissible precisely because the restricted speech 
+is not being regulated “as speech”—i. e., based on or due 
+to its message or expressive content. Rather, the speech 
+restriction is a mere byproduct of the State's healthcare 
+regulation. 
+So, at the end of the day, I think what we have here is 
+what Casey involved and NIFLA did not: a State restricting 
+a medical provider's speech only as part of its regulation of 
+the provision of medical treatments to individual patients. 
+See NIFLA, 585 U. S., at 769–770; Casey, 505 U. S., at 884 
+(joint opinion of O'Connor, Kennedy, and Souter, JJ.). And 
+it is precisely because the MCTL is restricting Chiles's 
+speech “only as part of [her] practice of medicine” that the 
+First Amendment is not particularly bothered despite the 
+impact on her speech. Casey, 505 U. S., at 884 (same). Ac­
+cordingly, talk therapists like Chiles—just like any other 
+healthcare provider seeking to treat patients—can presump­
+tively be “subject[ed] to reasonable licensing and regulation 
+by the State.” Ibid. 
+B 
+The conclusion that a State can regulate the provision of 
+medical care even if, in so doing, it incidentally restricts the 
+speech of some providers, fully comports with the First 
+Amendment's animating principles. These principles in­
+clude the well-settled notion that context matters when eval­
+uating First Amendment challenges to state regulation. 
+See Virginia Bd. of Pharmacy, 425 U. S., at 762–768 (analyz­
+ing the First Amendment protections due speech in the com­
+mercial context); cf. Central Hudson Gas & Elec. Corp. v. 
+Public Serv. Comm'n of N. Y., 447 U. S. 557, 564, n. 6 (1980) 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+675 
+Jackson, J., dissenting 
+(explaining how the context and characteristics of commer­
+cial speech justify less scrutiny). 
+The context that frames today's debate is the kind of 
+speech that is at issue here—what I am calling (as short­
+hand) “professional medical speech.” This is the only type 
+of speech the MCTL restricts. 
+1 
+Properly defned, “professional medical speech” is a nar­
+row category. It is not all speech “uttered by `profession­
+als.' ” NIFLA, 585 U. S., at 767. Rather, it is speech by 
+healthcare professionals made as part of their provision of 
+medical care to patients. To be even more specifc, profes­
+sional medical speech occurs when a medical professional 
+speaks to a client (1) in the context of the professional-
+patient relationship; (2) on matters within the provider's pro­
+fessional expertise as defned by the medical community; 
+(3) for the purpose of providing medical care. See C. Haupt, 
+Professional Speech, 125 Yale L. J. 1238, 1247–1248 (2016); R. 
+Post, Informed Consent to Abortion: A First Amendment 
+Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 
+939, 947; D. Halberstam, Commercial Speech, Professional 
+Speech, and the Constitutional Status of Social Institutions, 
+147 U. Pa. L. Rev. 771, 834 (1999). 
+First, professional medical speech is speech uttered within 
+the bounds of the professional-patient relationship. See, 
+e. g., Haupt, 125 Yale L. J., at 1254–1255. That relationship 
+imposes certain duties and restrictions on the medical pro­
+fessional. For example, medical providers are bound by the 
+twin duties of benefcence (the obligation to act for the bene­
+ft of the patient) and nonmalefcence (the obligation not to 
+harm the patient). B. Varkey, Principles of Clinical Ethics 
+and Their Application to Practice, 2020 Med. Principles and 
+Prac. 17, 18.6 
+6 This means, of course, that a provider is not employing professional 
+medical speech when speaking outside of the professional-patient relation­
+ship. The provider who gives a speech touting the benefts of conversion 
+Page Proof Pending Publication
+
+676 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+Second, professional medical speech is speech within the 
+healthcare provider's area of expertise as a member of the 
+medical community. Haupt, 125 Yale L. J., at 1248–1251. 
+Within the professional-patient relationship, the professional 
+has knowledge that the patient does not have, including 
+knowledge of which medical treatments are appropriate and 
+how to administer them. The patient comes to the provider 
+to access that expertise, which is informed by—and con­
+strained by—what the medical community knows. See id., 
+at 1243. 
+Finally, and most importantly, professional medical speech 
+is made for the purpose of providing the patient with medical 
+care. See id., at 1255. This speech is a tool employed to 
+treat patients. In this sense, professional medical speech fa­
+cilitates the professional's goal of providing the patient with 
+the treatment, procedure, or healthcare that is within her 
+expertise and that forms the basis of the professional-
+patient relationship. 
+2 
+Keeping in mind these characteristics of professional med­
+ical speech, consider the First Amendment principles that 
+serve as guideposts for determining the level of scrutiny that 
+a government restriction of such speech deserves. 
+First, and most fundamentally, is preservation of the mar­
+ketplace of ideas. See Abrams v. United States, 250 U. S. 
+616, 630 (1919) (Holmes, J., dissenting); Meyer v. Grant, 486 
+U. S. 414, 421 (1988). Indeed, the “whole project of the First 
+Amendment” stemmed from the Founders' desire to protect 
+the “critically important” goal of having “a well-functioning 
+sphere of expression, in which citizens have access to infor­
+mation from many sources.” Moody v. NetChoice, LLC, 603 
+therapy, or writes a paper criticizing those who do not practice conversion 
+therapy, or even expresses to a patient her general (non-treatment­
+related) views about conversion therapy does not have the duties that 
+arise in the context of the professional-patient relationship and, accord­
+ingly, is not engaging in professional medical speech. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+677 
+Jackson, J., dissenting 
+U. S. 707, 732 (2024). Within the marketplace of ideas, 
+speech that is expressive of the speaker's thoughts and views 
+is, generally speaking, highly valued. See Leathers v. Med-
+lock, 499 U. S. 439, 447 (1991); Ashcroft v. American Civil 
+Liberties Union, 535 U. S. 564, 573–574 (2002). 
+But professional medical speech does not intersect with 
+the marketplace of ideas: “[I]n the context of medical prac­
+tice we insist upon competence, not debate.” Post, 2007 U. 
+Ill. L. Rev., at 950. The degree to which medical providers 
+speaking within the boundaries of providing patient care can 
+express themselves is limited because their interactions with 
+patients are constrained by their well-established duties to 
+those patients and the requirement that they meet the stand­
+ard of care. Moreover, given these limits, professional med­
+ical speech does not necessarily involve the expression of 
+ideas or messages, so it does not provide signifcant value 
+to the general marketplace. See Dun & Bradstreet, Inc. v. 
+Greenmoss Builders, Inc., 472 U. S. 749, 758–759 (1985) (plu­
+rality opinion). 
+That's not to say that there isn't a robust marketplace of 
+ideas within the medical community. Medical professionals 
+contribute to that particular marketplace by writing papers, 
+giving speeches, and pushing the bounds of the community's 
+knowledge through experimentation. And, indeed, the 
+standard of care for a medical treatment can be greatly in­
+fuenced and changed by virtue of such speech. It is there 
+that truth competes for “accept[ance] in the . . . market.” 
+Abrams, 250 U. S., at 630 (Holmes, J., dissenting). But that 
+marketplace exists outside the confnes of the professional-
+patient relationship. See Haupt, 125 Yale L. J., at 1243–1244 
+(discussing the epistemic marketplace among medical 
+professionals). 
+Within the confnes of the professional-patient relation­
+ship, treatment-related “truths” are a given—they are set 
+by licensing and malpractice standards, and it is not uncom­
+mon that such regulation incidentally restricts provider 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+678 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+speech. Moreover, regulation of the practice of medicine is 
+pervasively and unavoidably viewpoint based. The major­
+ity and the concurrence both resist this: They relentlessly 
+deride Colorado for engaging in “viewpoint discrimination” 
+by banning conversion therapy but permitting affrming 
+care. Ante, at 645–646 (majority opinion); ante, at 655–657 
+(Kagan, J., concurring). But context makes that point 
+ring hollow. 
+When a State establishes a standard of care, or punishes 
+a doctor for providing care outside of that standard, it neces­
+sarily limits what medical professionals can say and do on 
+the basis of viewpoint. A State can permissibly “prohibi[t] 
+the administration of specifc drugs for particular medical 
+uses” but not for others. United States v. Skrmetti, 605 
+U. S. 495, 516 (2025).7 
+So, too, may it prohibit a doctor from 
+encouraging a patient to commit suicide, see Tr. of Oral Arg. 
+43–45, or a dietician from telling an anorexic patient to eat 
+less, see id., at 22–23. Likewise, no one would bat an eye if 
+a State required its doctors to discourage, but not encourage, 
+smoking tobacco. 
+Even though these kinds of regulations are inherently 
+viewpoint based, in the context of medical care, a State can 
+certainly require the medical professionals it licenses to 
+stand on one side of an issue. See Collins v. Texas, 223 U. S. 
+288, 297–298 (1912) (recognizing the “right of the State to 
+adopt a policy even upon medical matters concerning which 
+there is difference of opinion and dispute”). Though these 
+proscriptions certainly promote a viewpoint, in this context, 
+that alone does not suffce to establish a presumptive First 
+Amendment violation. Instead, under the “speech incident 
+to conduct” doctrine, the challenged laws must also operate 
+7 Of course, when the State discriminates “on the basis of sex and trans­
+gender status” with respect to the administration of specifc drugs, that 
+discrimination implicates the Equal Protection Clause and requires height­
+ened scrutiny for purposes of the Fourteenth Amendment. See Skrmetti, 
+605 U. S., at 579 (Sotomayor, J., dissenting). 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 627 (2026) 
+679 
+Jackson, J., dissenting 
+as speech-suppression tools, designed to vanquish free 
+expression. 
+But, here, Colorado's clear aim is enforcement of a stand­
+ard of care that is indisputably applicable to the State's li­
+censed healthcare professionals. Taking a position as to 
+how those providers should handle a medical issue is the 
+very essence of standard-setting—once again, this kind of 
+viewpoint-based regulation ensures “competence, not de­
+bate.” Post, 2007 U. Ill. L. Rev., at 950. My colleagues' 
+contrary conclusions are puzzling, for a standards-based 
+healthcare scheme cannot function unless its regulators are 
+permitted to choose sides.8 
+8 Faulting Colorado for legislating based on its view that conversion 
+therapy is harmful for minors and that affrming care is the better treat­
+ment, the concurrence purports to save “for another day” the question 
+whether “content-based but viewpoint-neutral laws regulating speech in 
+doctors' and counselors' offces” comport with the First Amendment. 
+Ante, at 659 (opinion of Kagan, J.). But that magnanimity is a mirage. 
+Standards-based regulations exist in the medical context precisely because 
+the State has a view about safety or effcacy; regulation is a State's police-
+power prerogative to promote those views (as the standard of care) while 
+simultaneously rejecting all others. 
+The laws I reference in Part IV, infra, are not examples of content-
+based, viewpoint-neutral laws, as the concurrence maintains. Contra, 
+ante, at 658, n. Rather, when properly analyzed, those laws are either 
+facially viewpoint based—see, e.g., the requirement that the medical pro­
+fessional must not provide care “in a cruel manner,” Kan. Admin. Regs. 
+102–3–12a(b)(11) (2022)—or unavoidably viewpoint based in application. 
+Consider, for example, a therapist disciplined for failing to provide care that 
+promotes the “best interests” of her client. See Ga. Comp. Rules & Regs., 
+Rule 135–7–.01(1) (2026). Punishment for a violation of that standard re­
+quires the State to impose its view of what a therapist should have said 
+or done, and would necessarily “refect the [State's] disapproval” of the 
+speech the therapist actually employed. See Matal v. Tam, 582 U. S. 218, 
+249 (2017) (Kennedy, J., concurring in part and concurring in judgment). 
+But, of course, imposing the State's view of what is appropriate is the 
+entire point of standards-based regulation. The First Amendment allows 
+this because the State is regulating professional conduct and this profes­
+sional's speech is only being incidentally restricted; the analysis does not 
+turn on whether the State's regulation is viewpoint neutral. Neutrality 
+
+680 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+A second and corollary First Amendment principle is the 
+listener's interest in receiving information. See Murthy v. 
+Missouri, 603 U. S. 43, 75 (2024); accord, Kleindienst v. Man­
+del, 408 U. S. 753, 762 (1972). In the professional medical 
+context, however, informational asymmetry shapes the lis­
+tener's interest. To be sure, “[r]espect for patients' auton­
+omy is a cornerstone of medical ethics.” American Medical 
+Association Code of Medical Ethics, Opinion 11.2.4: Trans­
+parency in Health Care (2026). But that interest is not 
+served by receiving all existing opinions—only information 
+about treatments that are within the standard of care ad­
+vances patients' interests. Ibid. (“[P]hysicians have an obli­
+gation to inform patients about all appropriate treatment 
+options” (emphasis added)). Patients are not in a position 
+to wade through medical discourse and independently evalu­
+ate the best treatment for their circumstances. Their inter­
+ests as listeners are thus limited by the nature and purpose 
+of the professional-patient relationship. 
+Third, and fnally, the First Amendment protects a speak-
+er's autonomy. 
+“ `[T]he fundamental rule of protection 
+under the First Amendment [is] that a speaker has the au­
+tonomy to choose the content of his own message.' ” Rums­
+feld v. Forum for Academic and Institutional Rights, Inc., 
+547 U. S. 47, 63–64 (2006) (quoting Hurley v. Irish-American 
+Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 
+557, 573 (1995)). But, here again, with respect to profes­
+sional medical speech, healthcare providers do not have au­
+tonomy; when it comes to providing treatments for their pa­
+tients, they are bound by the standard of care and are not 
+generally free to “choose the content” of their message. See 
+Haupt, 125 Yale L. J., at 1272; Halberstam, 147 U. Pa. L. Rev., 
+at 867. Put differently, although medical professionals do 
+have an autonomy interest in communicating their ideas to 
+the patients they are treating, that interest only extends to 
+is not—and cannot be—the touchstone of the laws that govern the quality 
+of care that professionals provide to patients. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+681 
+Jackson, J., dissenting 
+treatment-related advice and information that is consistent 
+with the standard of care. 
+In my view, the majority is mistaken to equate treatment-
+related speech rendered in the context of providing medical 
+care with any spoken words uttered by any other speaker. 
+See, e. g., ante, at 644 (“While the First Amendment protects 
+many and varied forms of expression, the spoken word is per­
+haps the quintessential form of protected speech. And that 
+is exactly the kind of expression in which Ms. Chiles seeks to 
+engage”). The majority is also wrong to insist that it is anti­
+thetical to the First Amendment for a State to incidentally re­
+strict a healthcare provider's treatment-related speech based 
+on a “prevailing standard of care” because “[m]edical consen­
+sus . . . is not static; it evolves and always has.” Ante, at 654. 
+The mutability of medical standards tells us little about the 
+First Amendment's scope in a country where medical stand­
+ards are enforceable by law and govern the treatment-related 
+conduct of professional healthcare providers. 
+Like it or not, treatment standards exist in America. And 
+those standards necessarily refect the expert medical com­
+munity's current beliefs about the safety and effcacy of vari­
+ous medical treatments, whatever those beliefs might be. 
+Medical standards are driven by science (objective facts and 
+data), but, naturally, they are not viewpoint neutral. Conse­
+quently, the people win—not lose—when a State incorpo­
+rates the medical profession's viewpoint into laws that re­
+quire licensed treatment providers to conform to prevailing 
+standards of care. Contra, ante, at 655 (suggesting other­
+wise). For this reason, the Court has long recognized a 
+State's power to regulate to protect its residents even in the 
+face of uncertainty. Cf. Gonzales v. Carhart, 550 U. S. 124, 
+163 (2007) (collecting cases and noting the “wide discretion” 
+afforded state legislatures to “pass legislation in areas where 
+there is medical and scientifc uncertainty”).9 
+9 The majority laments that, because medical consensus is “not static,” 
+a law like the MCTL might operate to “silenc[e]” professional speech going 
+forward even if medical consensus swings the other way. Ante, at 654. 
+Page Proof Pending Publication
+
+682 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+Put differently, States impose treatment standards incor­
+porating the current consensus of medical experts to protect 
+state residents from harm. And they do this to ensure that 
+professionals provide patients with high-quality care. A 
+State that, alternatively, pursues an agenda of purposefully 
+silencing critics, muzzling opponents, or targeting views it 
+considers threatening would, of course, violate the First 
+Amendment. But it behooves us all (and especially courts) 
+to see and know the difference. 
+Ultimately, then, no traditional First Amendment princi­
+ple justifes preventing a State from regulating medical care 
+simply and solely because its law happens to restrict 
+treatment-related speech. And in this case, there is zero 
+evidence that Colorado has engaged in the corrosive and il­
+licit suppression of ideas that the First Amendment valiantly 
+repels. The record here does not show that Chiles is being 
+“target[ed]” or “muzzle[d]” or “silenced” or “censor[ed],” as 
+the majority suggests. Ante, at 646, 647, 653, 655. Instead, 
+as a healthcare provider licensed by the State of Colorado, she 
+is simply being held to the same standard of care that all other 
+licensed medical professionals in that State must follow.10 
+Illustrating this problem, the majority points to shameful parts of this 
+country's past to show the dangers that can come from regulation that 
+relies on outdated medical practices. Ibid. (citing Buck v. Bell, 274 U. S. 
+200, 205–207 (1927)). But the majority does not mention that, if the 
+standard of care does change, the state legislature has the power to change 
+the law in response to that evidence. The majority's point seems to be 
+that States should not be permitted to enact (rigid) laws based on current 
+scientifc thought because expert opinions might shift over time. But 
+those uncertainties—which have always existed—are no reason to aban­
+don medical standards or to alter how the law has traditionally accommo­
+dated scientifc discoveries. The potential that medical consensus may 
+change in the future does not mean that the Constitution prevents a State 
+from acting today to protect its residents from what medical experts cur­
+rently believe is a harmful medical treatment. 
+10 Under my analysis, evidence of speech targeting or suppression could 
+include the fact that the challenged state regulation does not, in fact, refect 
+current medical consensus. See ante, at 654–655 (noting the mutability of 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 627 (2026) 
+683 
+Jackson, J., dissenting 
+The MCTL's conversion-therapy ban only incidentally re­
+stricts professional medical speech as a result of Colorado's 
+regulation of a harmful medical treatment; nothing compels 
+the conclusion that a state regulation that operates to re­
+strict this kind of communication in this way is targeting 
+speech qua speech. 
+III 
+The centuries-long tradition of States using their police 
+powers to establish and enforce the standards of care that 
+bind medical professionals—including those who use speech 
+to administer treatments—is another indication that height­
+ened scrutiny does not and need not apply here. The major­
+ity's opinion largely omits this broader historical record. 
+But, when consulted, that history demonstrates unequivo­
+cally that the MCTL is neither unusual nor inherently 
+suspect. 
+States have always had “broad power to establish stand­
+ards for licensing practitioners and regulating the practice 
+of professions.” Goldfarb v. Virginia State Bar, 421 U. S. 
+773, 792 (1975). With respect to the medical profession in 
+particular, States have used that power to control how medi­
+cine is practiced “from time immemorial.” Dent v. West Vir­
+ginia, 129 U. S. 114, 122 (1889). 
+the medical consensus). If a State enacts a treatment prohibition that 
+substantially diverges from the medical community's present beliefs, the 
+law might well be a pretext for illicit speech-targeting objectives. Far 
+from requiring “refexive deference,” id., at 654, proof of such motivation 
+would be unearthed, and carefully examined, as part and parcel of a court's 
+proper “speech incident to conduct” inquiry, since the doctrine is only ap­
+plicable to reasonable State regulations. See Planned Parenthood of 
+Southeastern Pa. v. Casey, 505 U. S. 833, 884 (1992) (joint opinion of O'Con­
+nor, Kennedy, and Souter, JJ.) (noting that medical professionals are “sub­
+ject to reasonable licensing and regulation by the State”); NIFLA, 585 
+U. S., at 785 (Breyer, J., dissenting) (stating that the First Amendment 
+yields to “reasonable conditions” that States impose on medical 
+providers). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+684 
+CHILES v. SALAZAR 
+Jackson, J., dissenting 
+States have historically regulated the medical profession 
+in two complementary ways: licensing schemes and medical-
+malpractice liability. Both necessarily encompass restric­
+tions on professional medical speech through the regulation 
+of the provision of medical care. 
+Medical licensing began as early as 1639, before this coun­
+try was founded. R. Horowitz, In the Public Interest: Medi­
+cal Licensing and the Disciplinary Process 39 (2013). Many 
+States deregulated in the mid-1800s by abolishing their li­
+censing schemes. Id., at 40. But regulation through licens­
+ing was not abandoned for long: By the turn of the 20th cen­
+tury, 12 States had adopted licensing laws. D. Johnson & H. 
+Chaudhry, Medical Licensing and Discipline in America: A 
+History of the Federation of State Medical Boards 23 (2012). 
+We held that such laws were a permissible exercise of a 
+State's traditional police powers, declaring that “[t]he power 
+of the state to provide for the general welfare of its people 
+authorizes it to prescribe all such regulations as, in its judg­
+ment, will secure or tend to secure them against the conse­
+quences of ignorance and incapacity as well as of deception 
+and fraud.” Dent, 129 U. S., at 122; see also Watson v. 
+Maryland, 218 U. S. 173, 176 (1910) (rejecting challenge to 
+medical-licensing law). 
+Today, every State has a medical-licensing scheme. See 
+App. to Brief for Health Law Scholars as Amici Curiae. In 
+practice, medical licensing serves two functions, both essen­
+tial to patient safety. First, as the majority emphasizes, li­
+censing sets limits on who may practice medicine. See 
+P. Larkin, M. Fishpaw, & L. McCarthy, Telemedicine and Oc­
+cupational Licensing, 73 Admin. L. Rev. 747, 774 (2021); ante, 
+at 652. But the second function is more important for this 
+case: State licensing laws also regulate how those profession­
+als may practice, by requiring them to adhere to a standard 
+of care. See Brief for Respondents 27; see also App. to id., 
+at 1a–8a (listing state laws that require medical and mental 
+
+Cite as: 607 U. S. 627 (2026) 
+685 
+Jackson, J., dissenting 
+health professionals to be licensed and to comply with profes­
+sional standards). 
+While licensing regulates medical professionals ex ante, 
+medical-malpractice lawsuits enforce those standards 
+ex post. And just like medical licensing, the tort of medical 
+malpractice has a long pedigree. 
+English common law held doctors liable for harm caused 
+by their negligent medical treatment. 3 W. Blackstone, 
+Commentaries on the Laws of England *122 (W. Lewis ed. 
+1922) (1768). The English tradition carried forward; this 
+legal claim has been available in our country since the found­
+ing. See K. De Ville, Medical Malpractice in Nineteenth-
+Century America: Origins and Legacy 3, 5 (1990) (De Ville). 
+In the mid-1800s, the number of malpractice cases skyrock­
+eted, flling the void left by the States' temporary deregula­
+tion of medical licensing. See id., at 25–34; see also id., 
+at 115–137; Graham v. Gautier, 21 Tex. 111, 117–118 (1858) 
+(observing that the lack of a licensing scheme demanded 
+enforcement of a corresponding standard of care). 
+Historically, the medical-malpractice tort generally re­
+quired the plaintiff to prove three things: (1) that there was 
+a professional-patient relationship, (2) that the medical pro­
+fessional had caused him harm, and (3) that the provider had 
+departed from a standard of care. De Ville 46–50. The ma­
+jority focuses on the requirement to show harm. Ante, at 
+653–654. But the entire point of the third element was to 
+reinforce the standards that govern medical practitioners. 
+For that reason, the harmed plaintiff was required to establish 
+that the accused physician had not practiced with “ordinary 
+care, diligence, and skill.” See De Ville 49 (emphasis deleted). 
+State enforcement of the standard of care—i. e., “the care, 
+skill, and knowledge regarded as competent among similar 
+medical providers in the same or similar circumstances,” Re­
+statement (Third) of Torts: Medical Malpractice § 5 (Tent. 
+Draft No. 2, Mar. 2024)—has continued over time and still 
+Page Proof Pending Publication
diff --git a/corpus/law/text/23443c4cba5874b8.txt b/corpus/law/text/23443c4cba5874b8.txt
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+Legal implications of the climate-health crisis: A case study analysis of the role of public health in climate litigation
+
+BACKGROUND: Strong scientific evidence affirms that climate change is now a public health emergency. Increasingly, climate litigation brought against governments and corporations utilizes international human rights, environmental and climate laws and policies to seek accountability for climate-destructive and health-harming actions. The health impacts of climate change make litigation an important means of pursuing justice and strategically challenging legal systems. Yet there is scant documentation in the literature of the role that public health has played in climate litigation and the legal weight public health narratives are given in such contexts. Therefore, we assessed to what extent courts of law have used public health harm in legal adjudication and sought to provide practical recommendations to address barriers to positioning legal arguments in public health-centric frames. METHODS: We reviewed legal databases to identify all publicly reported, documented, cases of climate litigation filed in any country or jurisdiction between 1990 and September 2020. For the 1641 cases identified, we quantified the frequency of cases where health concerns were explicitly or implicitly raised. FINDINGS: Case numbers are trending upwards, notably in high income countries. Resolution remains pending in over half of cases as the majority were initiated in the past three years. Cases were primarily based in climate and human rights law and brought by a wide range of groups and individuals predominantly against governments. About half of the decided cases found in favour for the plaintiffs. Based on this, we selected the 65 cases that were directly linked to public health. We found economic forces and pricing of health risks play a key role, as courts are challenged by litigants to adjudicate on the responsibility for health impacts. CONCLUSIONS: While courts of law are receptive to public health science, significant legal reform is needed to enhance leveraging of public health evidence in legal judgements of climate litigation cases. The integration of a public health mandate into a new eco-centric legal paradigm will optimize its potential to promote human well-being-the core objective underpinning both international law, human rights, and public health. Existing legal doctrines and practices can be enhanced to increase the weight of public health arguments in climate legal action and consequently ensure legal rulings in climate litigation prioritize, protect and promote public health.
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+PRELIMINARY PRINT 
+Volume 599 U. S. Part 1 
+Pages 166–235 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 8, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+166 
+OCTOBER TERM, 2022 
+Syllabus 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+COUNTY et al. v. TALEVSKI, as personal repre­
+sentative of the ESTATE OF TALEVSKI 
+certiorari to the united states court of appeals for 
+the seventh circuit 
+No. 21–806. Argued November 8, 2022—Decided June 8, 2023 
+After Gorgi Talevski's move to a nursing home in 2016 proved problematic, 
+Talevski (through his wife Ivanka) brought an action under 42 U. S. C. 
+§ 1983 against a county-owned nursing home and its agents (collectively, 
+HHC), claiming that HHC's treatment of Talevski violated rights guar­
+anteed him under the Federal Nursing Home Reform Act (FNHRA). 
+The District Court granted HHC's subsequent motion to dismiss Talev­
+ski's complaint, reasoning that no plaintiff can enforce provisions of the 
+FNHRA via § 1983. The Seventh Circuit reversed, concluding that the 
+rights referred to in two FNHRA provisions invoked by Talevski—the 
+right to be free from unnecessary chemical restraints, see § 1396r(c)(1) 
+(A)(ii), and rights to be discharged or transferred only when certain 
+preconditions are met, see § 1396r(c)—“unambiguously confer individu­
+ally enforceable rights on nursing-home residents,” making those rights 
+presumptively enforceable via § 1983. 6 F. 4th 713, 720. The Seventh 
+Circuit further found nothing in the FNHRA to indicate congressional 
+intent to foreclose § 1983 enforcement. 
+Held: The FNHRA provisions at issue unambiguously create § 1983­
+enforceable rights, and the Court discerns no incompatibility between 
+private enforcement under § 1983 and the remedial scheme that Con­
+gress devised. Pp. 174–192. 
+(a) Section 1983 has, since the 1870s, provided an express cause of 
+action to any person deprived (by someone acting under color of state 
+law) of “any rights . . . secured by the Constitution and laws.” The 
+Court has long refused to read § 1983's unmodifed term “laws” to mean 
+only some of the laws. Maine v. Thiboutot, 448 U. S. 1, 6. Looking 
+to history, HHC attempts to sow doubt about § 1983's textually unquali­
+fed sweep, and proffers a Spending Clause-based argument to narrow 
+§ 1983's meaning. But a fuller picture of the relevant history lends 
+HHC no aid. 
+The Court is unpersuaded by HHC's argument that, because Congress 
+seems to have enacted the FNHRA pursuant to the Spending Clause, 
+Talevski cannot invoke § 1983 to vindicate rights recognized by the 
+FNHRA. HHC starts with the Court's observation that federal legis­
+lation premised on the Spending Clause power is “much in the nature 
+
+Page Proof Pending Publication
+Cite as: 599 U. S. 166 (2023) 
+167 
+Syllabus 
+of a contract,” Pennhurst State School and Hospital v. Halderman, 451 
+U. S. 1, 17. From there, HHC argues that Spending Clause statutes 
+may not be enforced via § 1983 because contracts were not generally 
+enforceable by third-party benefciaries when § 1983 was enacted in the 
+1870s. The Court rejects HHC's argument. First, while the Court 
+has reasoned that Congress's failure to displace frmly rooted common-
+law principles generally indicates that it incorporated those established 
+principles into § 1983, Wyatt v. Cole, 504 U. S. 158, 163–164, HHC's key 
+common-law plank here—that third-party benefciaries could not sue to 
+enforce contractual obligations during the relevant time—is, at a mini­
+mum, contestable. “[S]omething more than `ambiguous historical evi­
+dence' is required [to] `fatly overrule a number of major decisions of this 
+Court,' ” Gamble v. United States, 587 U. S. –––, –––. Second, because 
+“[t]here is no doubt that the cause of action created by § 1983 is, and 
+was always regarded as, a tort claim,” Monterey v. Del Monte Dunes 
+at Monterey, Ltd., 526 U. S. 687, 727 (Scalia, J., concurring in part and 
+concurring in judgment), HHC's focus on 1870s law governing third­
+party-benefciary suits in contract is perplexing, and HHC offers no rea­
+son those principles should be read to displace the plain scope of “laws” 
+in § 1983. Pp. 174–180. 
+(b) Under the Court's precedent, the FNHRA provisions at issue here 
+unambiguously confer individual federal rights enforceable under § 1983, 
+and the Court discerns no intent by Congress in the FNHRA to pre­
+clude private enforcement of these rights under § 1983. Pp. 180–192. 
+(1) Although federal statutes have the potential to create § 1983­
+enforceable rights, they do so under this Court's precedents only when 
+the statute unambiguously confers those rights. The Court has recog­
+nized that the typical remedy for noncompliance with a federal statute 
+enacted pursuant to the Spending Clause is not a private cause of action 
+for noncompliance but rather termination of funds to the State. See 
+Gonzaga Univ. v. Doe, 536 U. S. 273, 280. The parties here thus dispute 
+whether this is the atypical case; that is, whether the unnecessary-
+restraint and predischarge-notice provisions of the FNHRA “unambigu­
+ously confe[r]” individual rights, making those rights “presumptively 
+enforceable” under § 1983. Id., at 283–284. 
+Gonzaga sets forth the Court's established method for ascertaining 
+unambiguous conferral. Courts must employ traditional tools of statu­
+tory construction to assess whether Congress has “unambiguously con­
+ferred” “individual rights upon a class of benefciaries” to which the 
+plaintiff belongs. Id., at 283, 285–286. Notably, it must be determined 
+that “Congress intended to create a federal right” for the identifed 
+class, not merely that the plaintiffs fall “within the general zone of inter­
+est that the statute is intended to protect.” Id., at 283 (emphasis de­
+leted). The test for unambiguous conferral is satisfed where the provi­
+
+Page Proof Pending Publication
+168 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Syllabus 
+sion in question is “ `phrased in terms of the persons benefted' ” and 
+contains “rights-creating,” individual-centric language with an “ `unmis­
+takable focus on the benefted class.' ” Id., at 284, 287 (emphasis de­
+leted). If a statutory provision surmounts this signifcant hurdle, it 
+“secures” individual rights that are deemed “presumptively enforceable” 
+under § 1983. Id., at 284. 
+The unnecessary-restraint and predischarge-notice provisions in 
+the FNHRA that Talevski's complaint invokes meet this test. The 
+FNHRA lays out a litany of statutory “[r]equirements relating to resi­
+dents' rights,” § 1396r(c). The unnecessary-restraint provision requires 
+nursing facilities to “protect and promote” residents' “right to be free 
+from . . . any physical or chemical restraints . . . not required to treat the 
+resident's medical symptoms.” § 1396r(c)(1)(A)(ii). The predischarge­
+notice provision imposes preconditions that a nursing facility must meet 
+to “transfer or discharge [a] resident.” §§ 1396r(c)(2)(A)–(B). Both 
+provisions reside in § 1396r(c), which expressly concerns “[r]equirements 
+relating to residents' rights.” Ibid. (emphasis added). This framing is 
+indicative of an individual “rights-creating” focus. Gonzaga, 536 U. S., 
+at 284. That these two provisions also establish who must comply with 
+these statutory rights (namely, the Medicaid-participant nursing homes) 
+does not dispel the statute's focus on the nursing-home residents, i. e., 
+the benefted class. The provisions use clear “rights-creating lan­
+guage,” speak “ `in terms of the persons benefted,' ” and have an “ `un­
+mistakable focus on the benefted class.' ” Id., at 284, 287, 290 (empha­
+sis deleted). Thus, they satisfy Gonzaga's stringent standard, and the 
+rights they recognize are presumptively enforceable under § 1983. 
+Pp. 180–186. 
+(2) Even if a statutory provision unambiguously secures rights, a 
+defendant “may defeat [the] presumption by demonstrating that Con­
+gress did not intend” that § 1983 be available to enforce those rights. 
+Rancho Palos Verdes v. Abrams, 544 U. S. 113, 120. Evidence of such 
+intent may be found expressly in the statute creating the right, or im­
+plicitly, by creating “a `comprehensive enforcement scheme that is in­
+compatible with individual enforcement under § 1983,' ” ibid. Here, the 
+Court fnds evidence of neither. The FNHRA establishes a detailed 
+administrative scheme for inspections of nursing facilities, see 
+§ 1396r(g), and authorizes governments to sanction and correct noncom-
+pliant facilities, see § 1396r(h). But the statute lacks any indicia of con­
+gressional intent to preclude § 1983 enforcement, such as an express 
+private judicial right of action or any other provision that might signify 
+that intent. HHC focuses on comprehensiveness of the FNHRA's en­
+forcement mechanisms, but implicit preclusion is shown only by a “ `com­
+prehensive enforcement scheme that is incompatible with individual en­
+forcement under § 1983.' ” Fitzgerald v. Barnstable School Comm., 555 
+
+Cite as: 599 U. S. 166 (2023) 
+169 
+Syllabus 
+U. S. 246, 252 (emphasis added). The Court's prior cases fnding implicit 
+preclusion involved statutes where private enforcement under § 1983 
+would have thwarted Congress's scheme by circumventing the statutes' 
+presuit procedures, or by giving plaintiffs access to tangible benefts 
+otherwise unavailable under the statutes construed. HHC has identi­
+fed no equivalent sign of incompatibility in the FNHRA, which lacks a 
+private judicial right of action, a private federal administrative remedy, 
+or any “ `carefu[l]' ” congressional “ `tailor[ing],' ” id., at 255, that § 1983 
+actions would “distort,” Rancho Palos Verdes, 544 U. S., at 127. Fi­
+nally, the Court rejects any speculation that because Congress knew 
+most nursing homes are private entities not subject to suit under § 1983, 
+the FNHRA's remedial scheme “necessarily refects Congress's judg­
+ment that these administrative enforcement mechanisms appropriately 
+protect the rights the statute confers,” Brief for United States as Ami­
+cus Curiae 31. The focus in the implicit-preclusion inquiry remains 
+whether something in the FNHRA has foreclosed §1983's “genera[l]” 
+availability as “a remedy for the vindication of rights secured by federal 
+statutes.” Gonzaga, 536 U. S., at 284. The Court sees no such sign, 
+much less a license for the Court to construct and impute to Congress 
+an intent that the FNHRA does not embody. Pp. 186–192. 
+6 F. 4th 713, affrmed. 
+Jackson, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., 
+joined. Gorsuch, J., fled a concurring opinion, p. 192. Barrett, J., 
+fled a concurring opinion, in which Roberts, C. J., joined, p. 193. 
+Thomas, J., fled a dissenting opinion, p. 196. Alito, J., fled a dissenting 
+opinion, in which Thomas, J., joined, p. 230. 
+Lawrence S. Robbins argued the cause for petitioners. 
+With him on the briefs were Carolyn M. Forstein, Jeffrey C. 
+Fourmaux, and Anil K. Vassanji. 
+Thomas M. Fisher, Solicitor General of Indiana, argued 
+the cause for the State of Indiana et al. as amici curiae urg­
+ing reversal. With him on the brief were Theodore E. Rok­
+ita, Attorney General of Indiana, James A. Barta, Deputy 
+Solicitor General, and Julia C. Payne and Melinda R. 
+Holmes, Deputy Attorneys General, and by the Attorneys 
+General for their respective States as follows: Steve Mar­
+shall of Alabama, Treg Taylor of Alaska, Leslie Rutledge of 
+Arkansas, Ashley Moody of Florida, Lawrence Wasden of 
+Idaho, Derek Schmidt of Kansas, Daniel Cameron of Ken­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+170 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Counsel 
+tucky, Jeff Landry of Louisiana, Lynn Fitch of Mississippi, 
+Austin Knudsen of Montana, Doug Peterson of Nebraska, 
+John Formella of New Hampshire, David A. Yost of Ohio, 
+John M. O'Connor of Oklahoma, Alan Wilson of South Caro­
+lina, Mark Vargo of South Dakota, Herbert H. Slatery III of 
+Tennessee, Ken Paxton of Texas, Sean Reyes of Utah, Jason 
+Miyares of Virginia, and Patrick Morrisey of West Virginia. 
+Benjamin W. Snyder argued the cause for the United 
+States as amicus curiae. With him on the brief were Solic­
+itor General Prelogar, Principal Deputy Assistant Attorney 
+General Boynton, Deputy Solicitor General Kneedler, Mark 
+B. Stern, and Alisa B. Klein. 
+Andrew T. Tutt argued the cause for respondent. With 
+him on the briefs were R. Stanton Jones, Kristine Black-
+wood, Stephen K. Wirth, and Susie Talevski.* 
+*Briefs of amici curiae urging reversal were fled for the American 
+Health Care Association et al. by James F. Segroves; and for the National 
+Conference of State Legislatures et al. by Christopher J. Wright, John R. 
+Grimm, and Lisa Soronen. 
+Briefs of amici curiae urging affrmance were fled for AARP et al. 
+by Maame Gyamf, William Alvarado Rivera, and Kelly Bagby; for the 
+American Cancer Society Cancer Action Network et al. by Thomas W. 
+Curvin, John H. Fleming, Thomas M. Byrne, and Mary Rouvelas; for the 
+American Public Health Association et al. by Stephanie A. Webster; for 
+the Constitutional Accountability Center et al. by Elizabeth B. Wydra, 
+Brianne J. Gorod, David D. Cole, and Kenneth J. Falk; for Contract Law 
+Professors et al. by Thomas G. Sprankling and Charles C. Bridge; for 
+Former Members of Congress by Matthew J. Dowd; for Former Senior 
+Offcials of the Department of Health and Human Services by Ishan K. 
+Bhabha, Samuel S. Ungar, and Stephen I. Vladeck; for the Georgia Advo­
+cacy Offce et al. by Paul Koster; for Indiana Disability Rights by Emily 
+A. Munson; for the Indiana Trial Lawyers Association by Ashley N. Hadler; 
+for the Judge David L. Bazelon Center for Mental Health Law et al. by 
+Aaron M. Panner and Ira A. Burnim; for Members of Congress by Anjali 
+Srinivasan; for the National Health Law Program et al. by Donald B. Ver­
+rilli, Jr., and Jane Perkins; for the Pennsylvania Association for Justice 
+et al. by Robert F. Daley, Jeffrey R. White, and Greg Heller; for Public Citi­
+zen by Wendy Liu and Scott L. Nelson; for Statutory Interpretation Schol­
+ars by Karla Gilbride; for Toby S. Edelman by Theodore A. Howard; and for 
+Daniel L. Hatcher by Robert J. Ward, Douglas I. Koff, and Frank Olander. 
+
+Cite as: 599 U. S. 166 (2023) 
+171 
+Opinion of the Court 
+Justice Jackson delivered the opinion of the Court. 
+The Federal Nursing Home Reform Act (FNHRA or Act) 
+ensures that nursing homes that receive Medicaid funding 
+respect and protect their residents' health, safety, and dig­
+nity. Provisions of the FNHRA refer to rights of nursing-
+home residents to be free from unnecessary physical or 
+chemical restraints and to be discharged or transferred only 
+when certain preconditions are satisfed. This case is about 
+these particular provisions and whether nursing-home resi­
+dents can seek to vindicate those FNHRA rights in court. 
+Respondent Ivanka Talevski maintains that she can en­
+force the rights these particular FNHRA provisions describe 
+via 42 U. S. C. § 1983, which, since the 1870s, has provided an 
+express cause of action to any person deprived (by someone 
+acting under color of state law) of “any rights . . . secured by 
+the Constitution and laws.” Petitioners insist that respond­
+ent is wrong about being able to rely on § 1983 in this con­
+text, for two independent reasons. First, petitioners urge 
+us to discard our longstanding recognition that § 1983's un­
+qualifed reference to “laws” “means what it says,” Maine v. 
+Thiboutot, 448 U. S. 1, 4 (1980), and to rule instead that 
+§ 1983 contains an implicit carveout for laws that Congress 
+enacts via its spending power—a holding that, according to 
+petitioners, would mean that § 1983 could not be used to en­
+force any rights the FNHRA purports to recognize. In the 
+alternative, petitioners point to our established methods for 
+determining whether a statutory provision creates a § 1983­
+Briefs of amici curiae were fled for the California Medical Association 
+by Stacey M. Leyton; for Children's Health Care Providers and Advocates 
+by Benjamin G. Shatz; for Health Policy Scholars by Carolyn F. Corwin 
+and Virginia A. Williamson; for the Institute for Justice by Brian A. 
+Morris; for the National Association of Community Health Centers et al. 
+by Edward T. Waters, Matthew Sidney Freedus, Phillip A. Escoriaza, 
+and Rosie Dawn Griffn; for the National Center for Youth Law et al. by 
+Constance Van Kley, Rylee Sommers-Flanagan, Gregory Bass, and 
+Brenda Shum; for Retired Lawyers by William J. Rold, John W. Cleve­
+land, and Arthur S. Leonard, all pro se; and for Robert M. Kerr by Chris­
+topher P. Schandevel, John J. Bursch, Kelly M. Jolley, and Ariail B. Kirk. 
+Page Proof Pending Publication
+
+172 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+enforceable right and maintain that these FNHRA provi­
+sions do not create rights that nursing-home residents can 
+enforce via § 1983. 
+We reject both propositions. “Laws” means “laws,” no 
+less today than in the 1870s, and nothing in petitioners' ap­
+peal to Reconstruction-era contract law shows otherwise. 
+Consequently, as we have previously held, § 1983 can pre­
+sumptively be used to enforce unambiguously conferred fed­
+eral individual rights, unless a private right of action under 
+§ 1983 would thwart any enforcement mechanism that the 
+rights-creating statute contains for protection of the rights 
+it has created. Fitzgerald v. Barnstable School Comm., 555 
+U. S. 246, 253–255 (2009); Gonzaga Univ. v. Doe, 536 U. S. 
+273, 284, and n. 4 (2002). We hold that the two FNHRA 
+provisions at issue here do unambiguously create § 1983­
+enforceable rights. And we discern no incompatibility be­
+tween private enforcement under § 1983 and the statutory 
+scheme that Congress has devised for the protection of those 
+rights. Accordingly, we affrm the lower court's judgment 
+that respondent's § 1983 action can proceed in court. 
+I 
+In 2016, when Gorgi Talevski's dementia progressed to the 
+point that his family members could no longer care for him, 
+they placed him in petitioner Valparaiso Care and Rehabili­
+tation's (VCR) nursing home.1 
+When he entered VCR, 
+Mr. Talevski could talk, feed himself, walk, socialize, and rec­
+ognize his family. Later in 2016, however, Mr. Talevski's 
+condition suddenly deteriorated. He became unable to eat 
+on his own and began losing the ability to communicate in 
+English (leaving him to rely primarily on Macedonian, his 
+native language). 
+VCR staff claimed this was dementia's natural progres­
+sion. But Mr. Talevski's daughter suspected, and then con­
+1 We rely for these facts on the operative complaint's well-pleaded alle­
+gations. See Walden v. Fiore, 571 U. S. 277, 281, n. 2 (2014). 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+173 
+Opinion of the Court 
+frmed with outside physicians, that VCR was chemically 
+restraining Mr. Talevski with six powerful psychotropic med­
+ications. With the help of an outside neurologist, his medi­
+cation was tapered down, and he began to regain the ability 
+to feed himself. Around this time, the Indiana State De­
+partment of Health (Department) conducted its periodic in­
+spection of VCR, and the Talevskis fled a formal complaint 
+with the inspectors regarding the chemical restraints. 
+The problems did not end there. Toward the end of 2016, 
+VCR began asserting that Mr. Talevski was harassing female 
+residents and staff. Based on that claim, VCR began send­
+ing Mr. Talevski to a psychiatric hospital 90 minutes away 
+for several days at a time. VCR readmitted Mr. Talevski 
+the frst two times it sent him away. But the third time, 
+instead of accepting him back, VCR tried to force his perma­
+nent transfer to a dementia facility in Indianapolis. It exe­
+cuted these changed circumstances without frst notifying 
+Mr. Talevski or his family. 
+The Talevskis fled a complaint with the Department re­
+garding Mr. Talevski's forced transfer. While the complaint 
+was pending, Mr. Talevski had to stay at another facility that 
+was 90 minutes away from his family. Eventually, a Depart­
+ment administrative law judge nullifed VCR's attempted 
+transfer of Mr. Talevski. Based on that determination, 
+the Talevskis endeavored to have Mr. Talevski returned to 
+VCR. But VCR ignored the judge's decision and refused 
+readmission. 
+The Talevskis complained again to the Department, which 
+later issued a report regarding the Talevskis' complaints. 
+Subsequently, petitioner American Senior Communities LLC 
+(ASC), which manages VCR, contacted Mr. Talevski's wife, 
+Ivanka, to discuss the possibility of Mr. Talevski's return. 
+At this point, however, Mr. Talevski had acclimated to his 
+new home, and the Talevskis feared retribution against him 
+if he returned to VCR. So they opted to leave him in the 
+new facility, which meant that every family visit required a 
+3-hour round trip. 
+Page Proof Pending Publication
+
+174 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+In 2019, Mr. Talevski (through Ivanka) sued VCR, ASC, 
+and petitioner Health and Hospital Corporation of Marion 
+County (collectively, HHC) under Rev. Stat. § 1979, 42 
+U. S. C. § 1983.2 
+The lawsuit claimed that HHC's treatment 
+of Mr. Talevski—in particular, the use of chemical restraints 
+and the persistent transfer attempts—had violated rights 
+that the FNHRA guaranteed him as a nursing-home resi­
+dent. The District Court granted HHC's subsequent mo­
+tion to dismiss the complaint, reasoning that no plaintiff can 
+enforce provisions of the FNHRA via § 1983. 
+The Court of Appeals for the Seventh Circuit reversed. 
+It concluded that, under this Court's precedent, the relevant 
+FNHRA provisions “unambiguously confer individually en­
+forceable rights on nursing-home residents,” making those 
+rights presumptively enforceable via § 1983. 6 F. 4th 713, 
+720 (2021). The Court of Appeals held further that the pre­
+sumption had not been rebutted here, because nothing in the 
+FNHRA indicated congressional intent to foreclose § 1983 
+enforcement of these rights. Id., at 720–721. 
+HHC fled a petition for certiorari, which we granted.3 
+596 U. S. ––– (2022). For the reasons explained below, we 
+affrm the Seventh Circuit's judgment. 
+II 
+A 
+As relevant here, § 1983 provides that 
+“[e]very person who, under color of any statute, ordi­
+nance, regulation, custom, or usage, of any State or Ter­
+2 Marion County, Indiana, owns Health and Hospital Corporation, which 
+in turn wholly owns VCR. 
+3 After the Seventh Circuit's ruling, Mr. Talevski passed away. We 
+granted Ivanka Talevski's substitution motion, and substituted her as a 
+party at the same time we granted certiorari. See Supreme Court Rule 
+35.1. Subsequent references to Talevski encompass both Talevskis inso­
+far as Ivanka is advancing Gorgi's interests. 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+175 
+Opinion of the Court 
+ritory or the District of Columbia, subjects, or causes to 
+be subjected, any citizen of the United States or other 
+person within the jurisdiction thereof to the deprivation 
+of any rights, privileges, or immunities secured by the 
+Constitution and laws, shall be liable to the party in­
+jured in an action at law, suit in equity, or other proper 
+proceeding for redress.” 
+That is, any person within the jurisdiction of the United 
+States may invoke this cause of action against any other per­
+son who, acting “under color of” state law, has deprived them 
+of “any rights, privileges, or immunities secured by the Con­
+stitution and laws” of the United States. 
+We have been asked before to narrow the scope of this 
+express authorization, i. e., to read “laws” to mean only “civil 
+rights or equal protection laws.” Thiboutot, 448 U. S., at 6. 
+We declined to do so, reasoning that a straightforward read­
+ing of the “plain language” of § 1983 is required. Id., at 4. 
+That should have been no surprise; “Congress attached no 
+modifers to the phrase [`and laws'].” Ibid. 
+Since Thiboutot, we have crafted a test for determining 
+whether a particular federal law actually secures rights 
+for § 1983 purposes. See Gonzaga, 536 U. S., at 283–285; 
+Part III–B, infra. But we have not previously doubted that 
+any federal law can do so. 
+B 
+1 
+HHC attempts to sow renewed doubt about § 1983's textu­
+ally unqualifed sweep by proffering “historical evidence.” 
+Brief for Petitioners 3; see also id., at 2 (asserting that “[f]or 
+most of this nation's history, individuals did not have a recog­
+nized private right to enforce obligations prescribed by fed­
+eral statutes”). As background for our evaluation of the 
+particulars of HHC's Spending Clause-based argument re­
+garding § 1983's meaning, see Part II–B–2, infra, a fuller pic­
+ture of the relevant historical context is warranted. United 
+Page Proof Pending Publication
+
+176 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+States v. Union Pacifc R. Co., 91 U. S. 72, 79 (1875); accord, 
+Towne v. Eisner, 245 U. S. 418, 425 (1918) (Holmes, J., for 
+the Court). 
+Before the Civil War, few direct federal protections for 
+individual rights against state infringements existed. The 
+Thirteenth, Fourteenth, and Fifteenth Amendments worked 
+a sea change in this regard. See McDonald v. Chicago, 561 
+U. S. 742, 754 (2010); Fitzpatrick v. Bitzer, 427 U. S. 445, 453– 
+456 (1976); Ex parte Virginia, 100 U. S. 339, 344–345 (1880). 
+Still, neither these Civil War Amendments nor the landmark 
+Civil Rights Act of 1866 successfully prevented postbellum 
+state actors from continuing to deprive American citizens of 
+federally protected rights. Mitchum v. Foster, 407 U. S. 
+225, 240 (1972). 
+In early 1871, a Senate Select Committee produced and 
+distributed a Report that ran hundreds of pages and re­
+counted pervasive state-sanctioned lawlessness and violence 
+against the freedmen and their White Republican allies. 
+Monroe v. Pape, 365 U. S. 167, 174 (1961) (citing S. Rep. 
+No. 1, 42d Cong., 1st. Sess. (1871)).4 
+After reading the Re­
+port, President Ulysses S. Grant implored Congress to act. 
+It is against this backdrop that the 42d Congress enacted, 
+and President Grant signed, the Civil Rights Act of 1871. 
+4 Encapsulating the Report, victim testimony, and press accounts for his 
+colleagues, one Congressman (as Monroe noted) lamented that “ `murder 
+is stalking abroad in disguise, . . . whippings and lynchings and banishment 
+have been visited upon unoffending American citizens, [and] the local ad­
+ministrations have been found inadequate or unwilling to apply the proper 
+corrective.' ” 365 U. S., at 175 (quoting Cong. Globe, 42d Cong., 1st Sess., 
+App. 374 (1871)). Another, summing up the same facts, stated: 
+“ `Sheriffs, having eyes to see, see not; judges, having ears to hear, hear 
+not; witnesses conceal the truth or falsify it; grand and petit juries act as 
+if they might be accomplices. . . . [A]ll the apparatus and machinery of civil 
+government, all the processes of justice, skulk away as if government and 
+justice were crimes and feared detection. Among the most dangerous 
+things an injured party can do is to appeal to justice.' ” Mitchum, 407 
+U. S., at 241 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 78). 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+177 
+Opinion of the Court 
+The frst section of that statute, as reenacted in 1874, created 
+the federal cause of action now codifed as § 1983. Chapman 
+v. Houston Welfare Rights Organization, 441 U. S. 600, 608, 
+and n. 16 (1979) (citing Rev. Stat. § 1979 (1874)). The “plain 
+language['s]” lack of “modifers,” Thiboutot, 448 U. S., at 4, 
+refected the regrettable reality that “state instrumentali­
+ties” could not, or would not, fully protect federal rights, 
+Mitchum, 407 U. S., at 242. 
+We have adhered to this understanding of § 1983's opera­
+tion. To guarantee the protection of federal rights, “the 
+§ 1983 remedy . . . is, in all events, supplementary to any 
+remedy any State might have.” Owens v. Okure, 488 U. S. 
+235, 248 (1989) (internal quotation marks omitted); Knick v. 
+Township of Scott, 588 U. S. –––, ––– (2019). And we have 
+consistently refused to read § 1983's “plain language” to mean 
+anything other than what it says. Thiboutot, 448 U. S., 
+at 4–6 (observing that our cases, running back to at least 
+1968, only make sense if “laws” indeed means “laws”). 
+2 
+We are not persuaded by HHC's argument (which Justice 
+Thomas supports, see post, at 196, 229 (dissenting opinion)), 
+that Talevski cannot invoke § 1983 to vindicate the rights the 
+FNHRA provisions at issue here purport to recognize be­
+cause Congress seems to have enacted the FNHRA pursuant 
+to the spending power recognized in Article I, § 8, of the 
+Constitution.5 
+HHC's argument generally proceeds as follows. Starting 
+with our precedent regarding Congress's spending power, 
+HHC begins by emphasizing our observation that federal 
+legislation premised on that power is “much in the nature of 
+a contract,” because, “in return for federal funds, the States 
+5 See Art. I, § 8, cl. 1 (authorizing the Legislature to “lay and collect 
+Taxes . . . to pay the Debts and provide for the common Defence and 
+general Welfare of the United States”). 
+Page Proof Pending Publication
+
+178 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+agree to comply with federally imposed conditions.” Penn­
+hurst State School and Hospital v. Halderman, 451 U. S. 1, 
+17 (1981); see also Cummings v. Premier Rehab Keller, 596 
+U. S. –––, ––– (2022). HHC then seizes on the “contract” 
+analogy to create a syllogism. It reasons that (1) any pri­
+vate party suing to enforce an obligation between Federal 
+and State Governments that a Spending Clause statute cre­
+ates is, essentially, a “third-party benefciary” (by which 
+HHC means benefciaries of rights created in any such 
+statute); and (2) under common-law contract principles ex­
+tant at the time that Congress enacted § 1983, third-party 
+benefciaries were “generally” barred from suing to enforce 
+contract obligations; therefore, (3) plaintiffs like Talevski, as 
+a purported third-party benefciary of the FNHRA, may 
+not use § 1983 to do something that third-party benefciaries 
+of contracts generally could not do in the 1870s. Brief 
+for Petitioners 13, 17–18 (citing 1870s treatises and state 
+cases). 
+The upshot, for HHC, is that “Spending Clause statutes do 
+not give rise to privately enforceable rights under Section 
+1983” because contracts were not “generally” enforceable by 
+third-party benefciaries at common law. Id., at 11, 13. On 
+this basis alone, HHC thus, in effect, urges us to reject dec­
+ades of precedent, and to rewrite § 1983's plain text to read 
+“laws (unless those laws rest on the Spending Power).” 
+Two well-established principles, applied here, suffce to re­
+ject HHC's invitation to reimagine Congress's handiwork 
+(and our precedent interpreting it). 
+First, our prior § 1983 cases reference “ `frmly rooted' ” 
+common-law principles. Wyatt v. Cole, 504 U. S. 158, 164 
+(1992). We implement Congress's choices rather than re­
+make them. Azar v. Allina Health Services, 587 U. S. 
+–––, ––– – ––– (2019). 
+Thus, we have reasoned that Con­
+gress's failure to displace frmly rooted common-law prin­
+ciples generally indicates that it incorporated those 
+established principles into § 1983. Wyatt, 504 U. S., at 163– 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 599 U. S. 166 (2023) 
+179 
+Opinion of the Court 
+164. 6 
+Here, HHC's key common-law plank—that third-
+party benefciaries could not sue to enforce contractual 
+obligations during the relevant time—is, at a minimum, con­
+testable. See Brief for Contract Law Professors et al. as 
+Amici Curiae 4 (“[A] majority of American jurisdictions . . . 
+permit[ted] third-party benefciaries to sue through at least 
+the early 1870s”); see also Hendrick v. Lindsay, 93 U. S. 143, 
+149 (1876) (concluding that “the right of a party to maintain 
+assumpsit on a promise not under seal, made to another for 
+his beneft, . . . is now the prevailing rule in this country”).7 
+“[S]omething more than `ambiguous historical evidence' is 
+required before we will `fatly overrule a number of major 
+decisions of this Court,' ” Gamble v. United States, 587 U. S. 
+–––, ––– (2019), as HHC essentially asks us to do here. 
+Second, because “[t]here is no doubt that the cause of ac­
+tion created by § 1983 is, and was always regarded as, a tort 
+claim,” Monterey v. Del Monte Dunes at Monterey, Ltd., 526 
+U. S. 687, 727 (1999) (Scalia, J., concurring in part and concur­
+ring in judgment), HHC's particular focus on 1870s law gov­
+erning third-party-benefciary suits in contract is, at the very 
+least, perplexing. If there is a reason that the principles 
+governing those suits should be read to displace the plain 
+6 For example, we have recognized immunities in the § 1983 context 
+when a “ `tradition of immunity was so frmly rooted in the common law 
+and was supported by such strong policy reasons that “Congress would 
+have specifcally so provided had it wished to abolish” ' ” that particular 
+immunity. Wyatt, 504 U. S., at 164 (quoting Owen v. Independence, 445 
+U. S. 622, 637 (1980)); see also Tenney v. Brandhove, 341 U. S. 367, 372– 
+376 (1951) (rooting immunity in a well-settled, pre-Revolutionary tradition 
+that Congress could not be thought to have “covert[ly]” abrogated). We 
+relied on similar reasoning when consulting well-settled common-law prin­
+ciples to determine the “contours of a [§ 1983] claim,” Nieves v. Bartlett, 
+587 U. S. –––, ––– (2019), the accrual date for § 1983 claims, McDonough v. 
+Smith, 588 U. S. –––, ––– (2019) (citing, inter alia, Heck v. Humphrey, 512 
+U. S. 477, 483 (1994)), and “ `prerequisites for th[e] recovery' ” of monetary 
+damages, id., at 483 (quoting Carey v. Piphus, 435 U. S. 247, 257–258 (1978)). 
+7 Black's Law Dictionary 154 (11th ed. 2019) (defning assumpsit, as rele­
+vant, as a “common-law action for . . . breach of a contract”). 
+
+180 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+scope of § 1983's “ `species of tort liability,' ” Heck v. Hum­
+phrey, 512 U. S. 477, 483 (1994), HHC has utterly failed to 
+identify it. 
+We have no doubt that HHC wishes § 1983 said something 
+else. But that is “an appeal better directed to Congress.” 
+Nieves v. Bartlett, 587 U. S. –––, ––– (2019) (Gorsuch, J., 
+concurring in part and dissenting in part). Hewing to 
+§ 1983's text and history (not to mention our precedent and 
+constitutional role), we reject HHC's request, and reaffrm 
+that “laws” in § 1983 means what it says. Thiboutot, 448 
+U. S., at 4.8 
+III 
+The FNHRA can create § 1983-enforceable rights. But 
+do the two FNHRA provisions at issue in this case actually 
+do so? In that respect, our precedent sets a demanding bar: 
+Statutory provisions must unambiguously confer individual 
+federal rights. Gonzaga, 536 U. S., at 280. For the reasons 
+explained below, we conclude that the bar has been cleared 
+with respect to the presently contested provisions. And 
+while the FNHRA itself might nevertheless evince Con­
+gress's intent to preclude the use of § 1983 to enforce these 
+particular rights, id., at 284, n. 4, we hold further that it 
+does not. 
+A 
+The FNHRA provisions at issue in this case, like the rest 
+of the Act, stem from a longstanding national commitment 
+8 HHC's reply brief retreats from its initial ask, by appearing to concede 
+that Spending Clause legislation can secure individual rights under § 1983, 
+but (it says) only if the statutory language “giv[es] funding recipients clear 
+notice.” Reply Brief 1. This newly minted argument contradicts the 
+opening brief's categorical claims about the scope of §1983. In any event, 
+the well-established requirement that Congress must have “unambigu­
+ously conferred” a § 1983-enforceable right in a Spending Clause statute 
+ensures the clear notice that HHC's reply brief requests. Gonzaga Univ. 
+v. Doe, 536 U. S. 273, 279–280, 283 (2002); Part III, infra. 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+181 
+Opinion of the Court 
+to provide safe and dignifed care for the elderly. Since as 
+early as the Social Security Act of 1935, federal law has 
+aimed in myriad ways to promote nursing homes that pro­
+vide quality services. Yet, concerns about the poor condi­
+tion of such facilities persisted even after Congress enacted 
+the 1965 Medicare and Medicaid Acts,9 partly due to wide­
+spread noncompliance with existing federal and state laws. 
+See Institute of Medicine, Improving the Quality of Care in 
+Nursing Homes 2–3, 11, 241–246 (1986); H. R. Rep. No. 100– 
+391, pt. 1, pp. 448–452 (1987). Thus, in 1987, Congress 
+passed, and President Ronald Reagan signed, the FNHRA, 
+effecting a “seismic shift” in nursing-home quality standards. 
+B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz, 
+Health Law 51 (3d ed. 2015) (Health Law).10 
+The FNHRA 
+is largely composed of a litany of statutory requirements that 
+Congress laid out for Medicaid-participant States and “nurs­
+ing facilities.” § 1396a(a)(28).11 
+Those include “[r]equire­
+ments relating to residents' rights,” § 1396r(c) (boldface 
+deleted), two of which Talevski's complaint invoked. 
+The frst requires nursing facilities to “protect and pro­
+mote” residents' “right to be free from . . . any physical or 
+9 Medicare “provides Government-funded health insurance to” millions 
+of “elderly or disabled Americans,” while Medicaid “provides health insur­
+ance to all low-income individuals, regardless of age or disability.” Be­
+cerra v. Empire Health Foundation, for Valley Hospital Medical Center, 
+597 U. S. –––, ––– – ––– (2022). 
+10 The Omnibus Budget Reconciliation Act of 1987 added the FNHRA 
+to Title XIX of the Social Security Act, i. e., Medicaid. See 101 Stat. 
+1330–182. The FNHRA added a materially identical section to the 
+Medicare-focused portion of the Social Security Act, 101 Stat. 1330–160, 
+42 U. S. C. § 1395i–3 et seq. Because Talevski's complaint relies only on 
+the Medicaid-related FNHRA provisions, App. to Pet. for Cert. 76a, we 
+hereafter follow the parties and the Court of Appeals in referring only to 
+the pertinent Medicaid provisions, as codifed in the U. S. Code (§§ 1396a 
+(a)(28), 1396r). 
+11 “Nursing facility” is the FNHRA's term for a nursing home. 
+§ 1396r(a). 
+Page Proof Pending Publication
+
+182 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+chemical restraints imposed for purposes of discipline or 
+convenience and not required to treat the resident's medical 
+symptoms.” §1396r(c)(1)(A)(ii) (referred to herein as “the 
+unnecessary-restraint provision”). The second appears in a 
+subparagraph concerning “[t]ransfer and discharge rights,” 
+§ 1396r(c)(2)(A) (boldface deleted), and tells nursing facilities 
+that they “must not transfer or discharge [a] resident” unless 
+certain enumerated preconditions, including advance notice 
+of such a transfer or discharge, are met. E. g., §§ 1396r(c) 
+(2)(A)–(B) (referred to herein as “the predischarge-notice 
+provision”). 
+As for enforcement, like other aspects of Medicaid, the 
+FNHRA anticipates “cooperative federalism”—i. e., federal 
+and state actors working together—to carry out the statute's 
+aims. Wisconsin Dept. of Health and Family Servs. v. 
+Blumer, 534 U. S. 473, 495 (2002). Thus, qualifying State 
+Medicaid plans, which are approved by the Secretary of the 
+U. S. Department of Health and Human Services (HHS Sec­
+retary), § 1396a(b), must include provisions that relate to 
+nursing facilities, and must require “any nursing facility re­
+ceiving payments under” the plan to satisfy certain FNHRA 
+mandates. § 1396a(a)(28). The HHS Secretary must also 
+“assure that” approved state plans—and “the enforcement of 
+[plan] requirements”—are, inter alia, “adequate” to “protect 
+the health, safety, welfare, and rights of [nursing-home] resi­
+dents.” §1396r(f)(1). 
+The FNHRA also establishes a detailed administrative 
+scheme for government inspections of nursing facilities. 
+§ 1396r(g). “Surveys” (in the statute's parlance) must be 
+conducted to detect nursing homes that are falling short of 
+the FNHRA's minimum standards, and state and federal of­
+fcials must periodically fle certifcations, based on these 
+surveys, regarding nursing-home compliance, see § 1396r(g) 
+(1)(A). In addition, the statute authorizes government 
+actors to sanction and correct noncompliant facilities, or, if 
+appropriate, exclude them from the Medicaid program en­
+tirely. § 1396r(h); see also Health Law 56–63. 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+183 
+Although federal 
+Opinion of the Court 
+B 
+1 
+statutes have the potential to create 
+§ 1983-enforceable rights, they do not do so as a matter of 
+course. For Spending Clause legislation in particular, we 
+have recognized that “ `the typical remedy for state noncom­
+pliance with federally imposed conditions is not a private 
+cause of action for noncompliance but rather action by the 
+Federal Government to terminate funds to the State.' ” 
+Gonzaga, 536 U. S., at 280 (quoting Pennhurst, 451 U. S., at 
+28). The parties here thus dispute whether this is the atypi­
+cal case; that is, whether the unnecessary-restraint and 
+predischarge-notice provisions of the FNHRA “unambigu­
+ously confe[r]” individual rights, making those rights “pre­
+sumptively enforceable” under § 1983. 536 U. S., at 283–284. 
+Gonzaga sets forth our established method for ascertain­
+ing unambiguous conferral. Courts must employ traditional 
+tools of statutory construction to assess whether Congress 
+has “unambiguously conferred” “individual rights upon a 
+class of benefciaries” to which the plaintiff belongs. Id., at 
+283, 285–286; see also Rancho Palos Verdes v. Abrams, 544 
+U. S. 113, 120 (2005). Notably, it must be determined that 
+“Congress intended to create a federal right” for the identi­
+fed class, not merely that the plaintiffs fall “within the gen­
+eral zone of interest that the statute is intended to protect.” 
+Gonzaga, 536 U. S., at 283 (emphasis deleted). This para­
+digm respects Congress's primacy in this arena and thus vin­
+dicates the separation of powers. Id., at 286. 
+We have held that the Gonzaga test is satisfed where the 
+provision in question is “ `phrased in terms of the persons 
+benefted' ” and contains “rights-creating,” individual-centric 
+language with an “ `unmistakable focus on the benefted 
+class.' ” Id., at 284, 287 (emphasis deleted). Conversely, we 
+have rejected §1983 enforceability where the statutory pro­
+vision “contain[ed] no rights-creating language”; had “an 
+aggregate, not individual, focus”; and “serve[d] primarily to 
+Page Proof Pending Publication
+
+184 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+direct the [Federal Government's] distribution of public 
+funds.” Id., at 290. 
+If a statutory provision surmounts this signifcant hurdle, 
+it “secure[s]” § 1983-enforceable rights, consistent with 
+§ 1983's text. And because “§ 1983 generally supplies a rem­
+edy for the vindication of rights secured by federal statutes,” 
+rights so secured are deemed “presumptively enforceable” 
+under § 1983. Id., at 284. 
+2 
+The unnecessary-restraint and predischarge-notice provi­
+sions meet this test. To start, we note that both reside in 42 
+U. S. C. § 1396r(c), which expressly concerns “[r]equirements 
+relating to residents' rights.” Ibid. (emphasis added; bold­
+face deleted); see also West Virginia v. EPA, 597 U. S. 
+–––, ––– (2022) (statutory provisions “ `must be read in their 
+context and with a view to their place in the overall statu­
+tory scheme' ”). This framing is indicative of an individual 
+“rights-creating” focus. Gonzaga, 536 U. S., at 284. Exam­
+ined further, the text of the unnecessary-restraint and 
+predischarge-notice provisions unambiguously confers rights 
+upon the residents of nursing-home facilities. 
+The unnecessary-restraint provision requires nursing 
+homes to “protect and promote . . . [t]he right to be free 
+from . . . any physical or chemical restraints imposed for 
+purposes of discipline or convenience and not required to 
+treat the resident's medical symptoms.” § 1396r(c)(1)(A)(ii) 
+(emphasis added). The provision's enumerated exceptions 
+further sustain the focus on individual residents. For exam­
+ple, nursing homes may use restraints “to ensure the physi­
+cal safety of the resident or other residents,” but “only upon 
+the written order of a physician that specifes the duration 
+and circumstances under which the restraints are to be used” 
+(absent emergency circumstances specifed by the HHS Sec­
+retary). §§ 1396r(c)(1)(A)(ii)(I)–(II) (emphasis added). 
+The predischarge-notice provision is more of the same. 
+Nestled in a paragraph concerning “transfer and discharge 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+185 
+Opinion of the Court 
+rights,” § 1396r(c)(2) (emphasis added; boldface deleted), that 
+provision tells nursing facilities that they “must not transfer 
+or discharge [a] resident” unless certain preconditions are 
+met, including advance notice of the transfer or discharge 
+to the resident and his or her family. §§ 1396r(c)(2)(A)–(B) 
+(emphasis added). And, again, the statute's caveats remain 
+focused on individual residents: A nursing home may trans­
+fer or discharge such an individual if, among other things, 
+the transfer is “necessary to meet the resident's welfare”; or 
+if the resident's health has improved so much that the facility 
+is no longer necessary; or if the safety or health of other 
+individuals would be endangered. § 1396r(c)(2)(A) (emphasis 
+added). The exceptions to the advance-notice requirement, 
+too, turn (inter alia) on the “resident's health,” the “resi­
+dent's urgent medical needs,” or the existence of threats to 
+the safety or health of other individuals in the nursing home. 
+§§ 1396r(c)(2)(B)(ii)(I)–(III) (emphasis added). 
+To be sure, these two provisions also establish who it is 
+that must respect and honor these statutory rights; namely, 
+the Medicaid-participant nursing homes in which these resi­
+dents reside. 
+See, e. g., §§ 1396a(a)(28), 1396r(c)(1)(A), 
+1396r(c)(2)(A); see also §§ 1396r(c)(1)(B)(i)–(ii) (requiring nur­
+sing homes to inform nursing-home residents of their rights, 
+orally and in writing, upon admission and upon request). 
+But that is not a material diversion from the necessary focus 
+on the nursing-home residents, contrary to HHC's represen­
+tations. Indeed, it would be strange to hold that a statutory 
+provision fails to secure rights simply because it considers, 
+alongside the rights bearers, the actors that might threaten 
+those rights (and we have never so held).12 
+The unnecessary-restraint and predischarge-notice provi­
+sions thus stand in stark contrast to the statutory provisions 
+that failed Gonzaga's test in Gonzaga itself. Those provi­
+sions lacked “rights-creating language,” primarily directed 
+12 The Fourteenth Amendment hardly fails to secure § 1983-enforceable 
+rights because it directs state actors not to deny equal protection. 
+Page Proof Pending Publication
+
+186 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+the Federal Government's “distribution of public funds,” and 
+had “an aggregate, not individual, focus.” 536 U. S., at 290. 
+The opposite is true here. The unnecessary-restraint and 
+predischarge-notice provisions use clear “rights-creating lan­
+guage,” speak “ `in terms of the persons benefted,' ” and 
+have an “ `unmistakable focus on the benefted class.' ” 
+Id., 
+at 284, 287, 290 (emphasis deleted). Thus, they satisfy Gon­
+zaga's stringent standard, and the rights they recognize are 
+presumptively enforceable under § 1983. 
+C 
+Even if a statutory provision unambiguously secures 
+rights, a defendant “may defeat th[e] presumption by demon­
+strating that Congress did not intend” that § 1983 be avail­
+able to enforce those rights. Rancho Palos Verdes, 544 
+U. S., at 120.13 
+For evidence of such intent, we have looked 
+to “the statute creating the right.” Ibid. A statute could, 
+of course, expressly forbid § 1983's use. Fitzgerald, 555 
+U. S., at 252; Rancho Palos Verdes, 544 U. S., at 120. Ab­
+sent such a sign, a defendant must show that Congress is­
+sued the same command implicitly, by creating “a `compre­
+hensive enforcement scheme that is incompatible with 
+individual enforcement under § 1983.' ” Id., at 120. Only 
+the latter path is at issue here. 
+13 The “ `rebuttable presumption' ” that our cases describe, Rancho Palos 
+Verdes, 544 U. S., at 120, is not an artifcially onerous court-made hur­
+dle. It merely refects what § 1983's plain text commands: The § 1983 
+remedy is available to vindicate federal individual rights “secured by . . . 
+la[w].” In other words, the presumption recognizes that, even where 
+Congress has unambiguously secured certain federal individual rights by 
+law, it may have simultaneously given good reason (detectable with 
+ordinary interpretive tools) to conclude that the § 1983 remedy is not avail­
+able for those rights, even though it “generally” is. Gonzaga, 536 U. S., 
+at 284, and n. 4. And it also recognizes that it is the defendant's burden 
+to show that a right otherwise secured by law is not § 1983 enforce­
+able. Rancho Palos Verdes, 544 U. S., at 120; Gonzaga, 536 U. S., at 284, 
+and n. 4. 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+187 
+Opinion of the Court 
+1 
+Our precedent outlines what HHC must show to traverse 
+the implicit-preclusion path. “ `The crucial consideration' ” 
+is whether “Congress intended a statute's remedial scheme 
+to `be the exclusive avenue through which a plaintiff may 
+assert [his] claims.' ” Fitzgerald, 555 U. S., at 252 (quoting 
+Smith v. Robinson, 468 U. S. 992, 1009, 1012 (1984) (emphasis 
+added)); Fitzgerald, 555 U. S., at 252 (framing “ `[t]he critical 
+question' ” as “ `whether Congress meant [the statute's reme­
+dial scheme] to coexist with . . . a § 1983 action' ” (quoting 
+Rancho Palos Verdes, 544 U. S., at 120–121)). 
+Our precedents make clear that the sine qua non of a fnd­
+ing that Congress implicitly intended to preclude a private 
+right of action under § 1983 is incompatibility between en­
+forcement under § 1983 and the enforcement scheme that 
+Congress has enacted. 555 U. S., at 252–254. We have 
+used many terms and concepts to describe the necessary dis­
+cordance between § 1983 and a rights-conferring statute's 
+remedial scheme: “ `incompatible,' ” “ `inconsistent,' ” and 
+“thwar[t]” are examples. Id., at 252–255. In all events, the 
+question is whether the design of the enforcement scheme in 
+the rights-conferring statute is inconsistent with enforce­
+ment under § 1983, such that a court must infer that “Con­
+gress did not intend” to make available the “[§ 1983] remedy 
+for [these] newly created right[s].” Rancho Palos Verdes, 
+544 U. S., at 120; see also Fitzgerald, 555 U. S., at 252. 
+Put another way, the inquiry boils down to what Congress 
+intended, as divined from text and context. The application 
+of the traditional tools of statutory construction to a statute's 
+remedial scheme may reveal no incompatibility between the 
+enforcement scheme that Congress crafted in the rights-
+conferring statute and enforcement under § 1983, or it may 
+uncover suffcient incompatibility to make manifest Con­
+gress's intent to preclude § 1983 actions. See, e. g., id., at 
+253 (explaining a past implicit-preclusion case on the ground 
+that permitting §1983 claims there would have “thwarted 
+Page Proof Pending Publication
+
+188 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+Congress' intent”); Rancho Palos Verdes, 544 U. S., at 127 
+(§ 1983's operation would have “distort[ed]” the pertinent 
+other statute's remedial scheme). 
+2 
+We discern no incompatibility between the FNHRA's re­
+medial scheme and § 1983 enforcement of the rights that the 
+unnecessary-restraint and predischarge-notice provisions un­
+ambiguously secure. 
+As explained in Part III–A, supra, the FNHRA details 
+administrative processes concerning inspection of covered 
+nursing facilities and accountability for noncompliant facili­
+ties. But the statute lacks any indicia of congressional in­
+tent to preclude § 1983 enforcement, such as an express pri­
+vate judicial right of action or any other provision that might 
+signify that intent. See, e. g., id., at 121 (“[T]he existence of 
+a more restrictive private remedy [in the statute itself] for 
+statutory violations has been the dividing line between those 
+cases in which we have held that an action would lie under 
+§ 1983 and those in which we have held that it would not”). 
+Nor has HHC otherwise demonstrated that enforcement via 
+§ 1983 would thwart the operation of the administrative re­
+medial scheme in any respect. 
+HHC's argument that we need look no further than the 
+detail of the FNHRA's enforcement mechanisms to fnd con­
+clusive evidence of implicit preclusion is unpersuasive. Im­
+plicit preclusion is shown by a “ `comprehensive enforcement 
+scheme that is incompatible with individual enforcement 
+under § 1983.' ” Fitzgerald, 555 U. S., at 252 (emphasis 
+added). HHC's single-minded focus on comprehensiveness 
+mistakes the shadow for the substance, and it disregards the 
+import of these FNHRA provisions' unambiguous conferral 
+of rights. The attendant presumption is that § 1983 can play 
+its textually prescribed role as a vehicle for enforcing those 
+rights, even alongside a detailed enforcement regime that 
+also protects those interests, so long as § 1983 enforcement 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 599 U. S. 166 (2023) 
+189 
+Opinion of the Court 
+is not “ `incompatible' ” with Congress's handiwork. Rancho 
+Palos Verdes, 544 U. S., at 120, 122; Blessing v. Freestone, 
+520 U. S. 329, 347–348 (1997) (collecting cases). 
+To be clear, a defendant can discharge its burden of show­
+ing that the presumption is rebutted by pointing to a com­
+prehensive scheme. Middlesex County Sewerage Authority 
+v. National Sea Clammers Assn., 453 U. S. 1, 20 (1981) (stat­
+utory “remedial devices” that are “suffciently comprehen­
+sive . . . may suffce” to show implicit preclusion). But when 
+a particular comprehensive remedial scheme discharges the 
+defendant's burden, it does so because the application of ordi­
+nary interpretive tools reveals incompatibility, i. e., it demon­
+strates that “Congress intended [that] statute's remedial 
+scheme to `be the exclusive avenue through which a plaintiff 
+may assert [his] claims.' ” Fitzgerald, 555 U. S., at 252. 
+Nothing in the FNHRA indicates the incompatibility 
+evinced in our three prior cases fnding implicit preclusion. 
+Rancho Palos Verdes, 544 U. S., at 120–123, 127; Smith, 468 
+U. S., at 1008–1013; Sea Clammers, 453 U. S., at 6–7, 19–21. 
+Rancho Palos Verdes, Smith, and Sea Clammers concerned 
+statutes with self-contained enforcement schemes that in­
+cluded statute-specific rights of action. Rancho Palos 
+Verdes, 544 U. S., at 120–123; Smith, 468 U. S., at 1008–1012; 
+Sea Clammers, 453 U. S., at 6–7, 17, and n. 27, 19–21. Each 
+such statute required plaintiffs to “comply with particular 
+procedures and/or to exhaust particular administrative rem­
+edies” under the statute's enforcement scheme before suing 
+under its dedicated right of action. Fitzgerald, 555 U. S., at 
+254. And each statute-specifc right of action offered fewer 
+benefts than those available under § 1983. Ibid., and n. 1. 
+Thus, in all three cases, § 1983's operation would have 
+thwarted Congress's scheme coming and going: It would 
+have “circumvented” the statutes' presuit procedures, and 
+would have also “given plaintiffs access to tangible bene­
+fts” as remedies that were “unavailable under the stat­
+utes.” Id., at 254. Those “ `comprehensive enforcement 
+
+Page Proof Pending Publication
+190 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Opinion of the Court 
+scheme[s]' ” were “ `incompatible with individual enforcement 
+under § 1983.' ” Id., at 252 (quoting Rancho Palos Verdes, 
+544 U. S., at 120). 
+HHC has identifed no equivalent sign in the FNHRA; nor 
+has Justice Alito, see post, at 230, 232–235 (dissenting 
+opinion). In focusing on what the FNHRA contains, they 
+ignore what it lacks—a private judicial right of action, a pri­
+vate federal administrative remedy, or any “ `carefu[l]' ” con­
+gressional “ `tailor[ing],' ” Fitzgerald, 555 U. S., at 255, that 
+§ 1983 actions would “distort,” Rancho Palos Verdes, 544 
+U. S., at 127. HHC seems to think it enough to show that 
+Congress was not slipshod in crafting the remedial scheme. 
+But in a world where the FNHRA's remedial scheme could 
+“complement,” not “supplant, § 1983,” id., at 122, HHC must 
+demonstrate more than that. 
+One last rebuttal argument warrants addressing. The 
+United States says that, because private entities owned most 
+nursing homes when the FNHRA was enacted in 1987 
+(as they do now), the FNHRA is a rare bird for implicit-
+preclusion purposes. In the United States' view, because 
+Congress knew that most nursing homes could not be subject 
+to suit under § 1983 anyway, see, e. g., Polk County v. Dod­
+son, 454 U. S. 312, 317–319 (1981), the FNHRA's remedial 
+scheme “necessarily refects Congress's judgment that these 
+administrative enforcement mechanisms appropriately pro­
+tect the rights the statute confers,” Brief for United States 
+as Amicus Curiae 31. 
+This argument is unavailing. The implicit-preclusion in­
+quiry looks to “the statute creating the right” and any “ `com­
+prehensive enforcement scheme' ” Congress has created in 
+the statute “ `that is incompatible with individual enforce­
+ment under § 1983.' ” Rancho Palos Verdes, 544 U. S., at 120 
+(emphasis added). It does not invite speculation about os­
+tensible marketplace realities that appear nowhere in the 
+statute's text or relevant context. The relevant FNHRA 
+provisions speak in neutral terms that do not distinguish be­
+tween private and public nursing homes. And, regardless, 
+
+Cite as: 599 U. S. 166 (2023) 
+191 
+Opinion of the Court 
+the question remains whether something in the FNHRA has 
+foreclosed §1983's “genera[l]” availability as “a remedy for 
+the vindication of rights secured by federal statutes.” Gon­
+zaga, 536 U. S., at 284. We see no such sign, much less a 
+license for us to construct and impute congressional intent 
+that the FNHRA does not embody. 
+The diffculty for HHC and the United States is that im­
+plicit preclusion, in this context, requires something in the 
+statute that shows that permitting § 1983 to operate would 
+“thwar[t] Congress' intent” in crafting the FNHRA. Fitz­
+gerald, 555 U. S., at 253. We see nothing in the FNHRA 
+that even hints at Congress's intent in this regard; if any­
+thing, the language of the Act confrms otherwise, for it 
+plainly states that “[t]he remedies provided under” its 
+enforcement-process subsection are “in addition to those 
+otherwise available under State or Federal law and shall not 
+be construed as limiting such other remedies.” § 1396r(h)(8) 
+(emphasis added).14 
+We will not rewrite § 1396r(h)(8) in lieu 
+of rewriting § 1983.15 
+14 We found similar (but not identical) language to be insuffcient to pre­
+serve the presumption in Middlesex County Sewerage Authority v. Na­
+tional Sea Clammers Assn., 453 U. S. 1 (1981), and Rancho Palos Verdes 
+v. Abrams, 544 U. S. 113 (2005). See id., at 125–127. But those clauses 
+did not purport to preserve “other remedies,” and were embedded in stat­
+utes that (unlike the FNHRA) contained private judicial rights of action. 
+See ibid.; Sea Clammers, 453 U. S., at 6–7, 20, and n. 31. The FNHRA's 
+explicitly expressed objective of preserving other remedies bolsters our 
+reluctance to infer implicit displacement of the § 1983 remedy. We think 
+Justice Alito's response in this regard overreads Rancho Palos Verdes. 
+See post, at 234–235. That case merely provided an unremarkable de­
+scription of Sea Clammers' “refus[al] to read” the saving clauses there as 
+preserving § 1983 actions, in light of the different (and signifcant) textual 
+and contextual evidence of preclusion that the statutes at issue provided. 
+Rancho Palos Verdes, 544 U. S., at 127. 
+15 The United States' suggestion that § 1396r(h)(8) just ensures that rem­
+edies available under non-FNHRA, non-§ 1983 statutes remain available 
+is not persuasive. Brief for United States as Amicus Curiae 34. Noth­
+ing in the Act supports interpreting § 1396r(h)(8)'s language in that man­
+ner, especially given § 1983's unqualifed command. 
+Page Proof Pending Publication
+
+192 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Gorsuch, J., concurring 
+*
+*
+* 
+At oral argument, HHC's counsel remarked that the “right 
+question” is “what rights are secured by law within the 
+meaning of [§] 1983.” Tr. of Oral Arg. 39. That is an accu­
+rate statement of the key issue in this case. Section 1983 
+itself provides the answer. By its terms, § 1983 is avail­
+able to enforce every right that Congress validly and un­
+ambiguously creates; we will not impose a categorical font-
+of-power condition that the Reconstruction Congress did 
+not. And, here, the test that our precedents establish leads 
+inexorably to the conclusion that the FNHRA secures the 
+particular rights that Talevski invokes, without other­
+wise signaling that enforcement of those rights via § 1983 
+is precluded as incompatible with the FNHRA's remedial 
+scheme. 
+Accordingly, we affrm the judgment of the Court of 
+Appeals. 
+It is so ordered. 
+Justice Gorsuch, concurring. 
+Section 1983 permits individuals to sue to vindicate their 
+“rights . . . secured by . . . la[w].” Rev. Stat. § 1979, 42 
+U. S. C. § 1983. I agree with the Court's disposition of the 
+two questions we took this case to decide and in arriving 
+there largely track Justice Barrett's reasoning. First, 
+the Federal Nursing Home Reform Act qualifes as a “law” 
+for purposes of § 1983. Post, at 193 (Barrett, J., concur­
+ring). Second, the text of the Act's operative provisions re­
+fers to individual “rights.” Post, at 193–195 (same). But, 
+to my mind, there are other issues lurking here that petition­
+ers failed to develop fully—whether legal rights provided for 
+in spending power legislation like the Act are “secured” as 
+against States in particular and whether they may be so se­
+cured consistent with the Constitution's anti-commandeering 
+principle. See, e. g., National Federation of Independent 
+Business v. Sebelius, 567 U. S. 519, 575–578 (2012); Murphy 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+193 
+Barrett, J., concurring 
+v. National Collegiate Athletic Assn., 584 U. S. –––, ––– – 
+––– (2018). As I see it, those are questions for another day. 
+Justice Barrett, with whom The Chief Justice joins, 
+concurring. 
+Today's opinion makes three important points. First, 
+Maine v. Thiboutot remains good law. 448 U. S. 1 (1980). 
+Second, Gonzaga University v. Doe sets the standard for 
+determining when a Spending Clause statute confers individ­
+ual rights, and the Federal Nursing Home Reform Act 
+(FNHRA) satisfes it. 536 U. S. 273 (2002). Third, courts 
+must carefully consider whether individual rights estab­
+lished by a Spending Clause statute are enforceable through 
+42 U. S. C. § 1983—in the FNHRA's case, they are. 
+As to 
+the frst point: Section 1983 provides a cause of action 
+against “[e]very person” who, under color of state law, vio­
+lates “any rights, privileges, or immunities secured by the 
+Constitution and laws.” In Thiboutot, we held that the 
+plain language of the statute was not limited to “some subset 
+of laws.” 448 U. S., at 4. Rather, the term “laws” encom­
+passes all federal laws, including those passed pursuant 
+to Congress's Spending Clause authority. Ibid. Like the 
+Court, I would not abandon that holding based on petition­
+ers' novel contract-law theory. 
+Second, our decision in Gonzaga establishes the standard 
+for analyzing whether Spending Clause statutes give rise to 
+individual rights. Under Gonzaga, courts must ask whether 
+“text and structure” indicate that the statute “unambigu­
+ously” confers federal rights. 536 U. S., at 283, 286. Rele­
+vant considerations include whether the statute is “ `phrased 
+in terms of the persons benefted,' ” whether it uses “explicit 
+rights-creating terms,” and whether it has an “individual,” 
+rather than an “aggregate,” focus. Id., at 284, 290. 
+This bar is high, and although the FNHRA clears it, many 
+federal statutes will not. As the Court explains, § 1983 ac­
+tions are the exception—not the rule—for violations of 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+194 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Barrett, J., concurring 
+Spending Clause statutes. Ante, at 183. This is because 
+“the typical remedy for state noncompliance with federally 
+imposed conditions is not a private cause of action for non­
+compliance but rather action by the Federal Government to 
+terminate funds to the State.” Pennhurst State School and 
+Hospital v. Halderman, 451 U. S. 1, 28 (1981). Indeed, since 
+Pennhurst, we have interpreted only two Spending Clause 
+statutes to be enforceable through § 1983. See Wright v. 
+Roanoke Redevelopment and Housing Authority, 479 U. S. 
+418, 432 (1987); Wilder v. Virginia Hospital Assn., 496 U. S. 
+498, 522–523 (1990). 
+The third point is that even when a statute unambiguously 
+confers rights, Congress can “supplant any remedy that 
+otherwise would be available under § 1983.” Middlesex 
+County Sewerage Authority v. National Sea Clammers 
+Assn., 453 U. S. 1, 21 (1981). At this step of the analysis, 
+courts should apply ordinary interpretive tools to determine 
+whether the statute allows access to § 1983. Ante, at 187; 
+see Sea Clammers, 453 U. S., at 13, 20–21 (“We look frst, of 
+course, to the statutory language, particularly to the provi­
+sions made therein for enforcement and relief”). In some 
+cases, the text may expressly forbid § 1983 actions. In oth­
+ers, context may point to the same result. It is especially 
+telling, for example, if the statute “ `creat[es] a comprehen­
+sive enforcement scheme that is incompatible with individual 
+enforcement under § 1983.' ” Gonzaga, 536 U. S., at 284– 
+285, n. 4. 
+As the Court notes, the presence of an “express private 
+judicial right of action” typically demonstrates that a § 1983 
+suit is not also available. Ante, at 188; see Rancho Palos 
+Verdes v. Abrams, 544 U. S. 113, 121 (2005) (express cause of 
+action “is ordinarily an indication that Congress did not in­
+tend to leave open a more expansive remedy under § 1983”). 
+When the statutory cause of action restricts available reme­
+dies or imposes procedural hurdles to obtaining relief, the 
+inference is even stronger. See Fitzgerald v. Barnstable 
+
+Cite as: 599 U. S. 166 (2023) 
+195 
+Barrett, J., concurring 
+School Comm., 555 U. S. 246, 254 (2009) (considering whether 
+a § 1983 suit “would have circumvented these procedures 
+and given plaintiffs access to tangible benefts—such as dam­
+ages, attorney's fees, and costs—that were unavailable under 
+the statut[e]”); Rancho Palos Verdes, 544 U. S., at 122–123 
+(similar). 
+But an actual clash—one private judicial remedy against 
+another, more expansive remedy—is not required to fnd that 
+a statute forecloses recourse to § 1983. Our cases have 
+looked to a wide range of contextual clues, like “enforcement 
+provisions” that “confe[r] authority to sue . . . on government 
+offcials,” Sea Clammers, 453 U. S., at 13, 20, and any “ad­
+ministrative remedies” that the statute offers, Smith v. Rob­
+inson, 468 U. S. 992, 1012 (1984). We have noted the rele­
+vance of a centralized review mechanism that would be 
+undermined by piecemeal litigation. Gonzaga, 536 U. S., 
+at 289–290 (statute directed the Secretary of Education to 
+establish a review board to investigate and adjudicate al­
+leged violations). And we have regularly taken account of 
+the overall comprehensiveness of the statute's enforcement 
+scheme. The more comprehensive the scheme, the less 
+likely that it leaves the door open for § 1983 suits. Sea 
+Clammers, 453 U. S., at 20 (“When the remedial devices pro­
+vided in a particular Act are suffciently comprehensive, they 
+may suffce to demonstrate congressional intent to preclude 
+the remedy of suits under § 1983”); Smith, 468 U. S., at 1011– 
+1012 (§ 1983 suits unavailable “[i]n light of the comprehensive 
+nature of the procedures and guarantees set out” in the stat­
+ute). None of these features is necessarily determinative, 
+but each is part of the larger picture that courts must 
+assess. 
+Courts must tread carefully before concluding that Spend­
+ing Clause statutes may be enforced through § 1983. In this 
+case, however, the Seventh Circuit correctly allowed Talev­
+ski's § 1983 suit to proceed. I therefore join the Court's 
+opinion in full. 
+Page Proof Pending Publication
+
+196 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+Justice Thomas, dissenting. 
+I agree with Justice Alito that the Federal Nursing 
+Home Reform Act (FNHRA) cannot be enforced through 
+Rev. Stat. § 1979, 42 U. S. C. § 1983, under Gonzaga Univ. v. 
+Doe, 536 U. S. 273 (2002). I write separately to highlight 
+another and more fundamental reason why FNHRA cannot 
+be enforced under § 1983. Section 1983 provides a cause of 
+action to redress only “the deprivation of any rights, privi­
+leges, or immunities secured by the Constitution and laws.” 
+But legislation enacted pursuant to Congress' spending 
+power, like FNHRA, does not “secure” rights by “law.” 
+For nearly all of our Nation's history, it was understood 
+that there is a fundamental difference between the exercise 
+of Congress' sovereign legislative powers, on the one hand, 
+and the exercise of its power to spend money and to attach 
+conditions to the receipt of that money, on the other. Only 
+the former sort of legislation, which imposes obligations on 
+regulated parties with the force of law, directly secures by 
+law the rights corresponding to those obligations. By con­
+trast, an exercise of Congress' spending power, whether it 
+comes from the so-called Spending Clause or elsewhere in 
+the Constitution, is no more than a disposition of funds. As 
+such, a conditional exercise of the spending power is nothing 
+more than a contractual offer; any “rights” that may fow 
+from that offer are “secured” only by the offeree's acceptance 
+and implementation, not federal law itself. 
+Since Maine v. Thiboutot, 448 U. S. 1 (1980), however, this 
+Court has ignored that fundamental distinction, permitting 
+third parties who beneft from spending conditions to enforce 
+them in § 1983 suits against state actors. In doing so, it has 
+created a constitutional quandary: If spending conditions 
+that beneft third parties are laws and secure rights in the 
+same manner as ordinary lawmaking under Congress' sover­
+eign legislative powers, then such conditions would con­
+tradict the bedrock constitutional prohibition against federal 
+commandeering of the States. We escape this quandary 
+only by recognizing spending conditions, not as rights­
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+197 
+Thomas, J., dissenting 
+securing laws, but as the terms of possible contracts that 
+secure rights only by virtue of an offeree's acceptance—the 
+very conclusion compelled by the traditional understanding 
+of the spending power. The choice between these alterna­
+tives is stark and unavoidable: Either spending conditions in 
+statutes like FNHRA are not laws that secure rights cogni­
+zable under § 1983, or they are unconstitutional direct regu­
+lations of States. The Court must, at some point, revisit its 
+understanding of the spending power and its relation to 
+§ 1983. 
+I 
+This case arises from a § 1983 suit to enforce FNHRA's 
+spending conditions against a county-owned nursing home 
+that receives federal funding. Enacted under Congress' 
+spending power, FNHRA conditions the receipt of federal 
+Medicaid funding by States and nursing facilities on compli­
+ance with a broad range of requirements. 
+These conditions largely consist of requirements that fund­
+ing recipients protect certain “rights” of nursing-home resi­
+dents. In a subsection entitled “[r]equirements relating to 
+residents' rights,” the Act requires recipients to “protect and 
+promote the rights of each resident,” including “[t]he right 
+to choose a personal attending physician” and make informed 
+medical decisions; “[t]he right to be free from physical or 
+mental abuse, corporal punishment, involuntary seclusion, 
+and any [medically unnecessary] physical or chemical re­
+straints”; and “[t]he right[s] to privacy” and “confdentiality.” 
+42 U. S. C. §§ 1396r(c)(1)(A)(i)–(iv). The Act further pro­
+vides that funding recipients “must permit each resident to 
+remain in the facility and must not transfer or discharge the 
+resident” without cause. § 1396r(c)(2)(A). Recipients must 
+also adopt procedures for residents to assert these “rights” 
+and to otherwise “voice grievances with respect to [their] 
+treatment or care.” § 1396r(c)(1)(A)(vi). 
+The Act also imposes many requirements directly and 
+uniquely upon participating States, including in a subsection 
+entitled “State requirements relating to nursing facility re­
+Page Proof Pending Publication
+
+198 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+quirements.” § 1396r(e). For instance, States must es­
+tablish procedures for residents to challenge transfer and 
+discharge decisions and an appeals process for other determi­
+nations. §§ 1396r(e)(3) and (e)(7)(F). States are also re­
+quired to certify non-state-run facilities' compliance with the 
+Act's provisions by conducting annual surveys using proto­
+cols developed by the Secretary of Health and Human Serv­
+ices. § 1396r(g)(2)(A). If a State fnds that a facility is not 
+providing adequate care, it must conduct an extended survey. 
+§ 1396r(g)(2)(B). The Act also requires States to investigate 
+resident complaints and perform onsite monitoring at pre­
+viously noncompliant or potentially noncompliant facilities. 
+§ 1396r(g)(4)(B). And, if it fnds a violation that “jeopar­
+dize[s] the health or safety of [a facility's] residents, the State 
+shall take immediate action to remove the jeopardy and cor­
+rect the defciencies.” § 1396r(h)(1)(A).1 
+FNHRA's scheme is illustrative of many modern federal 
+spending programs, which often impose obligations directly 
+on States as a condition of funding. For example, as a condi­
+tion on highway funding, the Clean Air Act requires States 
+to draft “State implementation plans” if their metropolitan 
+areas fail to satisfy national ambient air quality standards. 
+42 U. S. C. §§ 7410 and 7509(a)–(b). Among other require­
+ments, these plans must include emission limitations, com­
+pliance timetables, source monitoring, permitting systems, 
+enforcement programs, and public participation. 
+See 
+§ 7410(a)(2). Other examples, spanning virtually every do­
+main of national and state policy, abound. 
+1 This survey merely scratches the surface of the requirements that 
+FNHRA imposes upon participating States. See also, e. g., 42 U. S. C. 
+§ 1396r(e)(4) (“[T]he State must have implemented and enforced the nurs­
+ing facility administrator standards developed” by the Secretary for 
+Health and Human Services); § 1396r(e)(7)(B)(i)(I) (in the case of mentally 
+ill residents, “the State . . . must review and determine . . . whether or 
+not the resident . . . requires the level of services provided by a nursing 
+facility” or the services of different institutions). 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+199 
+Thomas, J., dissenting 
+The ubiquity of such spending conditions, combined with 
+the Federal Government's overwhelming fnancial heft, has 
+made Spending Clause legislation an extraordinarily potent 
+instrument of federal control.2 
+Congress and federal agen­
+cies “regularly us[e] conditions to direct state and local 
+governments in their regulatory and spending policies.” 
+P. Hamburger, Purchasing Submission 139 (2021) (Ham­
+burger). As a result, “the priorities and programs of state 
+and local governments have increasingly come to refect fed­
+eral decisions,” to the point that the States have virtually 
+become “disaggregated sites of national governance, not sep­
+arate sovereigns.” Id., at 141 (internal quotation marks 
+omitted). Given the profound consequences of spending 
+conditions for the Nation's governance and the fundamental 
+shift that they have wrought in our federalist system, a 
+sound understanding of their constitutional basis and permis­
+sible legal effects is essential. 
+II 
+This case presents one aspect of that question: whether 
+spending conditions that impose obligations on States for the 
+2 The power of this tool has grown with the steady increase in federal 
+income-tax revenues since the adoption of the Sixteenth Amendment. Al­
+though the Revenue Act of 1913 accounted for only 10% of federal revenue, 
+by 1950, the income tax was the Nation's largest source of revenue, and, 
+by 2010, it accounted for a whopping 82% of federal revenue overall. E. 
+Jensen, Did the Sixteenth Amendment Ever Matter? Does It Matter 
+Today? 108 Nw. U. L. Rev. 799, 807, n. 44 (2014). This explosion of funds 
+created unprecedented threats to federalism due to the increased use of 
+grants. Federal “[m]onetary grants, so-called grants-in-aid, became more 
+frequent during the 1930's, and by 1950 they had reached $20 billion or 
+11.6% of state and local government expenditures.” National Federation 
+of Independent Business v. Sebelius, 567 U. S. 519, 674 (2012) (NFIB) 
+(joint dissent of Scalia, Kennedy, Thomas, and Alito, JJ.) (citation and 
+footnote omitted). “By 1970 this number had grown to $123.7 billion or 
+29.1% of state and local government expenditures . . . . As of 2010, federal 
+outlays to state and local governments came to over $608 billion or 37.5% 
+of state and local government expenditures.” Ibid. (footnote omitted). 
+Page Proof Pending Publication
+
+200 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+beneft of third parties may be enforced under § 1983. That 
+statute provides a cause of action against any “person who, 
+under color” of state law, deprives the plaintiff “of any 
+rights, privileges, or immunities secured by the Constitution 
+and laws.” Accordingly, for the violation of a federal statu­
+tory provision to give rise to a cognizable § 1983 claim, the 
+provision must confer “rights, privileges, or immunities” that 
+are “secured by . . . la[w].” This Court's cases make clear 
+that a right is secured by law in the relevant sense if, and 
+only if, federal law imposes a binding obligation on the de­
+fendant to respect a corresponding substantive right that be­
+longs to the plaintiff.3 
+In Thiboutot, the Court held that “the plain language of 
+[§ 1983] undoubtedly embraces [a] claim that [the defendant] 
+violated” a spending-power statute, reasoning that “the 
+phrase `and laws' . . . means what it says” and is not “limited 
+to some subset of laws.” 448 U. S., at 4. The Court un­
+questioningly follows Thiboutot's logic today. 
+It is obvious, however, that conditional spending legisla­
+tion does not function—and, in particular, does not “secure 
+rights”—like laws enacted under Congress' enumerated leg­
+islative powers, such as the Commerce Clause. The latter, 
+3 See Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 106 (1989) 
+(“[T]he plaintiff must assert the violation of a federal right. . . . In deciding 
+whether a federal right has been violated, we have considered whether 
+the provision in question creates obligations binding on the governmental 
+unit” and “whether the provision in question was intended to beneft the 
+putative plaintiff ” (alteration and internal quotation marks omitted)); 
+Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 15, 16, 
+n. 12, 18–19 (1981) (repeatedly using the formula “rights and obligations” 
+correlatively); see also W. Hohfeld, Some Fundamental Legal Conceptions 
+as Applied in Judicial Reasoning, 23 Yale L. J. 16, 28–32 (1913). This rule, 
+it should be noted, addresses what it means for private rights to be se­
+cured by law, a distinct question from the level of clarity with which Con­
+gress must speak before courts may infer that it intended to create such 
+rights. See Gonzaga Univ. v. Doe, 536 U. S. 273, 290 (2002). 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+201 
+Thomas, J., dissenting 
+which I will refer to as “sovereign legislative” or “regula­
+tory” powers, include powers to directly impose obligations, 
+duties, prohibitions, and the like on individuals and entities 
+beyond the Federal Government, and hence to secure corre­
+sponding rights in the persons and entities to which such 
+obligations are owed. Laws that Congress enacts pursuant 
+to its regulatory powers are binding on the regulated parties 
+and pre-empt contrary state law of their own force. What­
+ever rights such laws secure, those rights are secured “by 
+the . . . laws” themselves. § 1983. 
+By contrast, legislation that conditions a State's receipt of 
+federal funds on compliance with certain requirements im­
+poses no obligations and secures no rights of its own force. 
+The stated conditions simply have no effect and do not argua­
+bly secure any rights (“by law” or otherwise) unless and until 
+they are freely accepted by the State. Not only that, the 
+Executive Branch can prevent the conditions from taking ef­
+fect by rejecting a State's application to participate in the 
+spending program, and it can terminate their effect by cut­
+ting off a State's participation for noncompliance with the 
+conditions. In addition, States can opt out of spending pro­
+grams, completely nullifying whatever force the spending 
+conditions once had. This alone suggests that spending con­
+ditions do not operate with the force of federal law, as “Con­
+gress' legislative powers cannot be avoided by simply opting 
+out.” D. Engdahl, The Contract Thesis of the Federal 
+Spending Power, 52 S. D. L. Rev. 496, 498 (2007) (emphasis 
+deleted); see also Townsend v. Swank, 404 U. S. 282, 292 
+(1971) (Burger, C. J., concurring in result) (“[A]dherence to 
+the provisions of [spending statutes] is in no way mandatory 
+upon the States under the Supremacy Clause”). 
+Indeed, spending conditions like those in FNHRA do not 
+function as laws enacted under Congress' regulatory powers, 
+and, if they did, they would unconstitutionally commandeer 
+the States to administer federal programs ranging from wel­
+Page Proof Pending Publication
+
+202 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+fare, to healthcare, to air quality, and much more. Such con­
+ditions are thus constitutional, if at all, only if understood as 
+setting forth the terms of a federal-state contract, rather 
+than as binding federal law imposing legally enforceable obli­
+gations of its own force. In holding that FNHRA secures 
+rights by federal law, the majority ignores the contractual 
+understanding of spending conditions and, by doing so, calls 
+their very constitutionality into question. 
+A 
+As noted earlier, a defning characteristic of modern 
+spending legislation is the imposition of obligations on States 
+that accept federal funds. Understanding a State's breach 
+of such obligations as akin to violating rights secured by fed­
+eral law is incompatible with this Court's anticommandeer­
+ing doctrine. Under this bedrock constitutional principle, 
+Congress generally cannot directly regulate the States or 
+require them to implement federal programs. 
+“When the original States declared their independence, 
+they claimed the powers inherent in sovereignty.” Murphy 
+v. National Collegiate Athletic Assn., 584 U. S. –––, ––– 
+(2018) (citing Declaration of Independence ¶32).4 
+Later, in 
+ratifying the Constitution, the people of the original States 
+granted carefully enumerated legislative powers to the new 
+Federal Congress, while preserving the States' pre-existing 
+legislative power. 584 U. S., at –––. “[C]onspicuously ab­
+4 The Articles of Confederation granted Congress only the power to act 
+upon States; it had no power to directly regulate individuals. The Consti­
+tution fipped this arrangement by granting the Federal Government the 
+power to regulate individuals directly, but not States. See New York v. 
+United States, 505 U. S. 144, 162 (1992) (“ `The people, through [the Consti­
+tution], established a more perfect union by substituting a national govern­
+ment, acting, with ample power, directly upon the citizens, instead of the 
+Confederate government, which acted with powers, greatly restricted, 
+only upon the States' ” (quoting Lane County v. Oregon, 7 Wall. 71, 76 
+(1869); emphasis deleted)). 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+203 
+Thomas, J., dissenting 
+sent from” Congress' enumerated powers was “the power to 
+issue direct orders to the governments of the States.” Ibid. 
+Thus, as this Court has made clear, the Constitution “con­
+fers upon Congress the power to regulate individuals, not 
+States.” New York v. United States, 505 U. S. 144, 166 
+(1992).5 
+As a corollary, Congress “may not conscript state 
+governments as its agents,” nor can it “require the States to 
+govern according to [its] instructions.” Id., at 162, 178. 
+And, “[w]hatever the outer limits of [state] sovereignty may 
+be, one thing is clear: The Federal Government may not com­
+pel the States to enact or administer a federal regulatory 
+program.” Id., at 188.6 
+Yet that is precisely what many spending conditions re­
+quire the State to do. Spending conditions like FNHRA's 
+are nothing more than commands to States, qua States, to 
+administer federal benefts programs on terms dictated by 
+Congress. Such conditions cannot be treated as having the 
+force of federal law imposing direct obligations on the States 
+and securing correlative rights of private parties without vi­
+olating the anticommandeering doctrine. 
+It is no answer that the States consent to direct regulation 
+by agreeing to the spending conditions in return for federal 
+dollars. As the Court held in New York, “[w]here Congress 
+exceeds its authority relative to the States, . . . the departure 
+from the constitutional plan cannot be ratifed by the `con­
+sent' of state offcials.” Id., at 182. Because the people 
+5 Congress possesses limited powers to directly regulate the States 
+under the Reconstruction Amendments. See, e. g., City of Boerne v. Flo­
+res, 521 U. S. 507, 518 (1997). Due to the federalism concerns inherent in 
+such regulation, these enforcement powers are cabined by the congruence­
+and-proportionality test. Id., at 518–519. The careful tailoring of this 
+exception vividly proves the rule. 
+6 The anticommandeering doctrine protects “political subdivisions” of 
+States against federal cooptation, as well as the States themselves. 
+Printz v. United States, 521 U. S. 898, 935 (1997); see also id., at 931, n. 15 
+(“[T]he distinction in our Eleventh Amendment jurisprudence between 
+States and municipalities is of no relevance here”). 
+Page Proof Pending Publication
+
+204 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+have surrendered only limited and enumerated powers to the 
+Federal Government, the States and Congress cannot jointly 
+circumvent the ratifcation and amendment process by agree­
+ing “to the enlargement of the powers of Congress beyond 
+those enumerated in the Constitution.” Ibid. The Federal 
+Government cannot buy (or rent) the States' power to imple­
+ment a federal program and then regard the conditions that 
+the States are implementing themselves as having the force 
+of federal law. 
+B 
+Of course, it is ultimately the States' consent that gives 
+effect to conditions in spending legislation, but it does so 
+in an entirely different manner from an illicit expansion of 
+Congress' regulatory powers. Rather, as the Court ob­
+served in Pennhurst State School and Hospital v. Halder­
+man, 451 U. S. 1 (1981), “legislation enacted pursuant to the 
+spending power is much in the nature of a contract.” Id., at 
+17. A federal statute imposing conditions upon the receipt 
+of federal funding does not enact those conditions with “the 
+obligation of law”; it merely “proposes them as the terms 
+of a contractual promise.” Hamburger 132. Such spending 
+provisions “merely stipulate what the government expects 
+from recipients if it is to pay them or, later, not withhold 
+further payment and demand its money back.” Ibid. Thus, 
+“even when fully recited in statutes, federal conditions do 
+not come with legal obligation.” Ibid. 
+Further, and as already noted, the conditions in spending 
+legislation only come into force upon the acceptance of an­
+other party. Such conditions are thus “obligatory only by 
+virtue of such agreement and not by force of law.” D. Eng­
+dahl, The Spending Power, 44 Duke L. J. 1, 104 (1994). To 
+be sure, “it is a statute that prescribes the funding condition 
+and requires denial of federal assistance if the funding condi­
+tion is not agreed to.” Ibid. But, “only the agreement— 
+and not the statute—makes the terms obligatory on the 
+funds recipient and thus `secures' the contemplated third­
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+205 
+Thomas, J., dissenting 
+party rights.” Ibid.7 
+Accordingly, such “third-party rights 
+. . . are `secured' (if at all) not by any `law,' but only by the 
+contract between the recipient and the United States.” 
+Ibid. 
+This contractual understanding of conditional spending 
+legislation is much more than a mere analogy; it is the only 
+possible explanation for why such legislation is not an uncon­
+stitutional direct regulation of the States. To deny or down­
+play this principle is to seek to have it both ways. Much 
+spending legislation conditions States' receipt of federal 
+funds on their undertaking obligations with respect to third 
+parties. For such legislation to survive a federalism chal­
+lenge, it must not directly impose obligations on the States 
+with the force of federal law. But, for those conditions to 
+be enforceable under § 1983, they must secure third-party 
+rights by directly imposing correlative obligations on the 
+States with the force of federal law. Both of these things 
+cannot be true. 
+III 
+This contractual understanding of spending conditions is 
+also a necessary consequence of the limited nature of Con­
+7 For this reason, the mere fact that spending conditions are enacted 
+in statutory form is irrelevant; “not everything in a statute is legally bind­
+ing.” Hamburger 131; see also D. Engdahl, The Contract Thesis of the 
+Federal Spending Power, 52 S. D. L. Rev. 496, 500 (2007). In other words, 
+while Congress may infuence policy “by attaching `strings' to grants of 
+money given to state and local governments, . . . those strings aren't laws,” 
+and do not secure rights, in the sense needed to support § 1983 liability. 
+United States v. Morgan, 230 F. 3d 1067, 1073 (CA8 2000) (Bye, J., specially 
+concurring); see also Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 
+581–582 (ED Mich. 2001) (“[N]o interest is `secured' by the federal Medi­
+caid statute. Upon its enactment, this federal law does not vest in a sin­
+gle American the right or privilege of receiving federally-subsidized medi­
+cal care. . . . [T]hough passed by both houses of Congress and signed by 
+the President, the Medicaid statute has no force of its own. It is only 
+when a State . . . accepts the Federal Government's offer and agrees to 
+participate in the program that any benefts accrue to eligible individu­
+als”), rev'd, 289 F. 3d 852 (CA6 2002). 
+Page Proof Pending Publication
+
+206 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+gress' spending power, as consistently understood for nearly 
+two centuries of our Nation's history. Indeed, this is one 
+point on which the Framers all seem to have agreed. De­
+spite heated debates over the source and scope of Congress' 
+power to spend, all understood that this power did not carry 
+with it any independent regulatory authority. That agree­
+ment persisted throughout the 19th century. And, in the 
+20th, it was a critical underpinning of this Court's precedents 
+upholding expansive uses of the spending power as consist­
+ent with Congress' limited legislative powers and our feder­
+alist system of government. 
+A 
+At the outset, while Congress undoubtedly possesses the 
+power to direct the expenditure of federal funds, it is impor­
+tant to note that the Constitution contains no “spending 
+clause.” From the beginning, some have located the spend­
+ing power in the General Welfare Clause, and that view has 
+generally been accepted by this Court's modern doctrine. 
+See Engdahl, 44 Duke L. J., at 53, and n. 220 (describing 
+Alexander Hamilton's views); South Dakota v. Dole, 483 
+U. S. 203, 206 (1987). Yet, there are serious problems with 
+that view. 
+The General Welfare Clause is simply part of the Taxing 
+Clause, which reads in relevant part: “The Congress shall 
+have Power To lay and collect Taxes, Duties, Imposts and 
+Excises, to pay the Debts and provide for the common De-
+fence and general Welfare of the United States.” Art. 1, § 8, 
+cl. 1. By its terms, the only authority vested by this text is 
+a power to “lay and collect Taxes, Duties, Imposts and Ex­
+cises.” This power is then qualifed by the Debts and Gen­
+eral Welfare Clauses, which limit the objects for which Con­
+gress can exercise that power. The General Welfare Clause 
+is thus most naturally read as a qualifcation on the substan­
+tive taxing power. 
+Consider also that the General Welfare Clause references 
+not only the “general Welfare” but also “the common De­
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+207 
+Thomas, J., dissenting 
+fence.” If the Clause were construed as an affrmative 
+grant of power to spend for the common defense, it would 
+make redundant Congress' powers to “raise and support Ar­
+mies” and to “provide and maintain a Navy,” also found in 
+Article I, § 8, cls. 12–13. Thus, “[i]f the reference to `com­
+mon Defence' spending simply alludes to power conferred 
+elsewhere,” then it seems illogical to consider the terms 
+“general Welfare” as the source of a freestanding power to 
+spend for whatever purposes. D. Engdahl, The Basis of the 
+Spending Power, 18 Seattle U. L. Rev. 215, 222 (1995). 
+The Taxing Clause is also a strange candidate for the 
+source of a general congressional spending power because “it 
+fails to provide any authority at all to spend money acquired 
+otherwise than by taxation.” Ibid. Yet, “[t]he federal 
+treasury receives money from many other sources, including 
+penalties, fnes, user fees, leases, surplus property sales, 
+gifts, bequests, and returns on investments.” Ibid. And 
+those sums are a pittance in comparison to those raised 
+under Congress' Borrowing Clause power, see Art. I., § 8, 
+cl. 2, which has always been one of the major sources of fed­
+eral funds. Unless federal spending on credit and from rev­
+enues not derived from “Taxes, Duties, Imposts and Excises” 
+is unconstitutional, the General Welfare Clause cannot be the 
+source of Congress' spending power. 
+The Clause certainly is not an independent grant of regu­
+latory power to legislate for the general welfare, as the his­
+tory of the Constitution's framing and ratifcation makes 
+clear. The Philadelphia Convention initially adopted a reso­
+lution that Congress be authorized “ `to legislate in all cases 
+for the general interests of the Union, and also in those to 
+which the States are separately incompetent, or in which the 
+harmony of the United States may be interrupted by the 
+exercise of individual legislation.' ” J. Renz, What Spending 
+Clause? (Or the President's Paramour), 33 John Marshall 
+L. Rev. 81, 104 (1999) (Renz). But the Convention later 
+abandoned this vesting of a broad power to legislate for the 
+general welfare in favor of the enumeration of specifc fed­
+Page Proof Pending Publication
+
+208 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+eral legislative powers and the creation of a taxing power 
+limited by the General Welfare Clause. See R. Natelson, 
+The General Welfare Clause and the Public Trust: An Essay 
+in Original Understanding, 52 Kan. L. Rev. 1, 23–29 (2003) 
+(Natelson); see also Renz 104–105 (counting fve instances 
+in which the Convention considered and rejected attempts 
+“to insert a grant of general legislative power into the 
+Constitution”).8 
+Consistent with its text, Federalist advocates of the Con­
+stitution defended the General Welfare Clause to the ratify­
+ing public as nothing more than a limitation on the taxing 
+power. See, e. g., 3 Debates on the Constitution 207 (J. El­
+liot ed. 1876) (Elliot's Debates) (E. Randolph, Virginia Con­
+vention) (“The plain and obvious meaning of this is, that no 
+more duties, taxes, imposts, and excises, shall be laid, than 
+are suffcient to pay the debts, and provide for the common 
+defence and general welfare, of the United States”); N. Web­
+ster, An Examination Into the Leading Principles of the Fed­
+eral Constitution, in Pamphlets on the Constitution of the 
+United States 50 (P. Ford ed. 1888) (“[I]n the very clause 
+which gives the power of levying duties and taxes, the pur­
+poses to which the money shall be appropriated are specifed, 
+viz. to pay the debts and provide for the common defence 
+and general welfare of the United States”); see also Natelson 
+47–49. “[T]heir basic message was that the language in 
+question was not a grant at all—rather it was a restriction 
+on federal authority.” Id., at 39. As Governor Randolph 
+emphatically declared: “Is this an independent, separate, 
+8 One instance in particular demonstrates that the General Welfare 
+Clause is simply a restriction on the Taxing Clause. The Committee of 
+Style slightly altered the text agreed to by the Convention by changing 
+the comma after “Excises” into a semicolon, so that the General Welfare 
+Clause “became an additional power, conjoined to the power to tax, rather 
+than merely a limitation on it.” Hamburger 283. The Convention, how­
+ever, recognized the alteration and restored the comma, “corroborat[ing] 
+the conclusion that the General Welfare Clause was not an independent 
+power.” Natelson 28. 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+209 
+Thomas, J., dissenting 
+substantive power, to provide for the general welfare of the 
+United States? No, sir.” 3 Elliot's Debates 466. 
+Federalists went out of their way to specifcally disclaim 
+that the General Welfare Clause would vest any independent 
+regulatory power. For example, James Madison expressly 
+rejected Anti-Federalist attempts to portray the General 
+Welfare Clause as granting “an unlimited commission to ex­
+ercise every power which may be alleged to be necessary for 
+the common defense or general welfare.” The Federalist 
+No. 41, p. 262 (C. Rossiter ed. 1961). Similarly, in rebutting 
+Patrick Henry's warning that the Clause would vest a regu­
+latory power, Governor Randolph observed: “You must vio­
+late every rule of construction and common sense, if you 
+sever it from the power of raising money, and annex it to any 
+thing else, in order to make it that formidable power which 
+it is represented to be.” 3 Elliot's Debates 600. Again and 
+again, leading Federalists represented the General Welfare 
+Clause simply “as qualifying the fscal power.” E. Corwin, 
+The Spending Power of Congress—Apropos the Maternity 
+Act, 36 Harv. L. Rev. 548, 552 (1923) (citing The Federalist 
+Nos. 30 and 34 (A. Hamilton), and 41 (J. Madison)). “It was 
+generally understood” by the Constitution's ratifers “that 
+the General Welfare Clause did not confer power to regu­
+late”; such regulatory powers were conferred only by specifc 
+enumerations such as the Commerce Clause. T. Sky, To 
+Provide for the General Welfare 67 (2003) (Sky). 
+Thus, even if one implausibly regards the General Welfare 
+Clause as a “Spending Clause,” it is unambiguous that the 
+Clause confers no independent regulatory power. Impor­
+tantly, the same holds for every other plausible textual an­
+chor for Congress' general spending power. First, the Nec­
+essary and Proper Clause is a natural candidate for the 
+spending power because spending funds may be “necessary 
+and proper for carrying into Execution” the Federal Govern­
+ment's enumerated powers. Art. I, § 8, cl. 18; see G. Law­
+son & G. Seidman, The Constitution of Empire 30 (2004) 
+Page Proof Pending Publication
+
+210 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+(Lawson & Seidman) (“This `Sweeping Clause' . . . unques­
+tionably includes the power to enact spending laws that 
+are `necessary and proper' for effectuating federal powers”); 
+K. Stith, Congress' Power of the Purse, 97 Yale L. J. 1343, 
+1348 (1988) (arguing that the Necessary and Proper Clause 
+“includes the power to spend public funds on authorized fed­
+eral activities”). But, because the Clause authorizes only 
+those spending measures that are “ `necessary and proper for 
+carrying into Execution' other enumerated federal powers[,] 
+Congress can . . . spend only if the appropriation is tied to 
+the execution of one of the federal government's granted 
+powers.” Lawson & Seidman 30. The Clause thus “does 
+not provide a stand-alone grant of spending authority, and 
+certainly not an authority to spend for a nonspecifc `general 
+welfare of the United States.' ” Ibid. 
+A second plausible source of the spending power is the 
+Property Clause, which provides that “Congress shall have 
+Power to dispose of and make all needful Rules and Regula­
+tions respecting the Territory or other Property belonging 
+to the United States.” Art. IV, § 3, cl. 2. The term “other 
+Property” may “comprehen[d] personal property no less than 
+real,” and “personal property includes money, as well as f­
+nancial assets of all kinds.” Engdahl, 18 Seattle U. L. Rev., 
+at 250 (emphasis deleted). But the power to dispose of funds 
+does not carry with it any regulatory power; the Property 
+Clause “only authorizes the control and disposition of federal 
+property” and “does not disturb the allocation of governance 
+authority otherwise accomplished under the principle of enu­
+merated powers.” Id., at 251. Thus, when disposing of fed­
+eral property under the Property Clause, “Congress has no 
+more competence to make `law' than any private donor or 
+testator has.” Engdahl, 44 Duke L. J., at 104. 
+B 
+In the early decades after ratifcation, both the source and 
+the scope of the spending power were hotly contested, usu­
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+211 
+Thomas, J., dissenting 
+ally in debates over “internal improvements” such as roads 
+and canals. One side, represented by Madison, maintained 
+that federal spending must be strictly in aid of the Federal 
+Government's specifcally enumerated powers—for instance, 
+expenditures to construct a road would be justifed only if 
+the road could be constructed under the Post Roads Clause 
+or some other enumerated power. See Renz 108–119; see 
+also J. Eastman, Restoring the “General” to the General Wel­
+fare Clause, 4 Chap. L. Rev. 63, 72 (2001). As this side of the 
+debate also took a narrow view of the enumerated powers, 
+it generally argued that the Federal Government could not 
+fund internal improvements without a constitutional amend­
+ment. See Sky 140–141. The other camp, associated with 
+the nationalist views of Hamilton and Joseph Story, under­
+stood the General Welfare Clause to “include very broad 
+spending authority,” which could be applied to purposes not 
+specifcally enumerated by the Constitution. Natelson 12; 
+see also Renz 124–126. 
+Even this camp, however, understood that “the General 
+Welfare Clause does not include a power to regulate.” Natel­
+son 12; see also Sky 96. Hamilton, for example, made clear 
+that the spending power did not “imply a power to do what­
+ever else should appear to Congress conducive to the general 
+welfare.” Report on the Subject of Manufactures 37 (1791). 
+As he further elaborated, “[a] power to appropriate money 
+[does] not carry a power to do any other thing, not authorized 
+in the Constitution, either expressly or by fair implication.” 
+Ibid. Instead, any regulatory authority had to be tethered 
+to some independent regulatory power. Thus, under this 
+view, Congress could spend money on roads and canals un­
+connected with the enumerated powers, but it would have to 
+depend on the States for any regulatory legislation needed 
+to complete and preserve the improvements. 
+This understanding that the spending power itself ex­
+tended only to the “application of money,” ibid. (emphasis 
+in original), led Hamilton to favor a constitutional amend­
+Page Proof Pending Publication
+
+212 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+ment “empowering Congress to open canals.” Letter from 
+A. Hamilton to J. Dayton (1799), in 10 Works of Alexander 
+Hamilton 334 (H. Lodge ed. 1904). After all, opening canals 
+“involve[d] much more than spending money: it involve[d] 
+acquiring rights of way and constructing and operating the 
+improvements.” Engdahl, 44 Duke L. J., at 23. Thus, it 
+was precisely the “insuffciency of the spending power to 
+override state law obstacles to achieving the targeted end 
+that made Hamilton conclude that a constitutional amend­
+ment for canals was necessary.” Id., at 24. “[F]ederal 
+funding alone” could not “override” “incompatible or adverse 
+state policies.” Ibid. As this example demonstrates, even 
+those who held the broadest conception of the spending 
+power recognized that it was only a power to spend, not a 
+power to impose binding requirements with the force of fed­
+eral law. See Sky 95. 
+The limited nature of the spending power was also a rare 
+point of agreement in Hamilton and Jefferson's bitter quarrel 
+over the constitutionality of a national bank. Refecting the 
+ratifcation era understanding of the General Welfare Clause, 
+Jefferson observed that “the laying of taxes is the power and 
+the general welfare the purpose for which the power is to be 
+exercised.” Opinion on the Constitutionality of the Bill for 
+Establishing a National Bank (Feb. 15, 1791), in 19 Papers of 
+Thomas Jefferson 277 (J. Boyd ed. 1974) (emphasis in origi­
+nal). If the General Welfare Clause went beyond “describ­
+ing the purpose of the” Taxing Clause and represented “a 
+distinct and independent power to do any act [Congress may] 
+please, which might be for the good of the Union,” it “would 
+render all the preceding and subsequent enumerations of 
+power completely useless.” Ibid.; accord, J. Madison, The 
+Bank Bill (Feb. 2, 1791), in 13 Papers of James Madison 375 
+(C. Hobson & R. Rutland eds. 1981) (interpreting the General 
+Welfare Clause as a distinct power “would supersede all the 
+powers reserved to the state governments”). In response, 
+Hamilton justifed the bank based on Congress' enumerated 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+213 
+Thomas, J., dissenting 
+powers, such as the Commerce and Taxing Clauses. Opin­
+ion on the Constitutionality of an Act To Establish a Bank 
+(Feb. 23, 1791), in 8 Papers of Alexander Hamilton 97 (H. 
+Syrett ed. 1965). He discussed the General Welfare Clause 
+only as a limitation: “It is true, that [Congress] cannot with­
+out breach of trust, lay taxes for any other purpose than 
+the general welfare.” Id., at 129. In his view, the spending 
+power was emphatically limited to “the application of 
+money.” Ibid. (emphasis in original). Jefferson and Hamil­
+ton could agree that it was no independent font of legisla­
+tive power. 
+In sum, the Framers and Ratifers understood the Taxing 
+and General Welfare Clauses as granting only a power to tax. 
+What our modern cases refer to as the “Spending Clause”— 
+in fact, the General Welfare Clause—was understood by the 
+Framers and the ratifying public as granting no regulatory 
+authority. One thing that the opposing men and factions of 
+the founding generation agreed upon was that the Federal 
+Government's power to spend was just that—a power to 
+spend, involving no regulatory authority. Instead, the 
+power to bind with the force of law must come from Con­
+gress' enumerated legislative powers rather than its spend­
+ing power. 
+C 
+Though the scope and source of the spending power contin­
+ued to be vigorously contested into the 19th century, the fun­
+damental understanding that federal spending measures 
+could not bind with the force of law remained common 
+ground. For example, in his last offcial act, President Madi­
+son vetoed an internal improvements bill in part because 
+the “train of powers incident” to constructing and maintain­
+ing such improvements were beyond Congress' enumerated 
+powers. 30 Annals of Cong. 211, 212 (1817). The General 
+Welfare Clause could not provide the needed regulatory au­
+thority, as such an interpretation “would have the effect of 
+giving to Congress a general power of legislation,” thus ren­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+214 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+dering the Constitution's “special and careful enumeration of 
+powers . . . nugatory and improper.” Id., at 212. That the 
+bill required state consent was likewise insuffcient because, 
+if the power “be not possessed by Congress, the assent of 
+the States . . . cannot confer the power.” Ibid. 
+Upon assuming offce, President James Monroe sent a mes­
+sage to Congress agreeing with Madison's views; the mes­
+sage was then referred to a special Committee in the House 
+of Representatives led by Congressman Henry Tucker. 
+Corwin, 36 Harv. L. Rev., at 559–560. The Tucker Commit­
+tee produced an exhaustive report on internal improve­
+ments, which disagreed with nearly every aspect of Madison 
+and Monroe's position. Id., at 560–561. Signifcantly, how­
+ever, the Committee agreed that the General Welfare Clause 
+did not vest the power needed to make internal improve­
+ments, relying instead on the Constitution's specifc enumer­
+ations such as the Post Roads Clause. 31 Annals of Cong. 
+454 (1817) (“disavow[ing] any use of the general phrase in the 
+Constitution to provide for the common defence and general 
+welfare, as applicable to the enumeration of powers, or as 
+extending the power of Congress beyond the specifed pow­
+ers”). The Tucker Committee also agreed with President 
+Monroe that the spending power did not “extend the speci­
+fed or incidental powers of Government” or allow Congress 
+to exercise any “jurisdictional [i. e., regulatory] rights” over 
+improvements. Id., at 459–460. Thus, “if the power to 
+make a road or dig a canal is not given” by one of Congress' 
+enumerated regulatory powers, “the power of appropriating 
+money cannot confer it.” Id., at 459.9 
+9 After a debate on the Tucker Report, the House approved a resolution 
+declaring Congress' authority to appropriate money to construct internal 
+improvements pursuant to its enumerated powers, voting down several 
+other resolutions that would have declared a congressional power to make 
+monetary grants to States untethered to any enumerated power and that 
+the Federal Government had the power to itself construct and maintain 
+internal improvements. 32 Annals of Cong. 1381–1389 (1818). 
+
+Cite as: 599 U. S. 166 (2023) 
+215 
+Thomas, J., dissenting 
+In his second term, President Monroe set forth the fullest 
+exposition of the understanding that the spending power in­
+volved no regulatory authority. In 1822, Congress passed a 
+bill to establish a system of internal improvements, asserting 
+the “power to establish turnpikes with gates and tolls, and 
+to enforce the collection of tolls by [federal] penalties.” Sky 
+147 (internal quotation marks omitted). President Monroe 
+then vetoed the measure, judging that Congress' spending 
+authority did not extend to such “a complete right of jurisdic­
+tion and sovereignty for all the purposes of internal improve­
+ment, and not merely the right of applying money under the 
+power vested in Congress to make appropriations.” 2 Mes­
+sages and Papers of the Presidents 1789–1908, p. 142 (J. Rich­
+ardson ed. 1897) (Richardson). Because Monroe understood 
+“that Congress do[es] not possess this power [and] the States 
+individually can not grant it,” he agreed with Madison and 
+Hamilton that the “power can be granted only by an amend­
+ment to the Constitution.” Id., at 143. 
+To explain his veto, President Monroe sent Congress an 
+extensive report entitled “Views of the President of the 
+United States on the Subject of Internal Improvements.” 
+In this report—perhaps “the most elaborate constitutional 
+discussion ever sent to the Capitol from the White House”— 
+Monroe synthesized the understanding of the spending 
+power from the founding of the Republic. L. Rogers, The 
+Postal Power of Congress 75 (1916). And, in doing so, he 
+largely settled the contours of that understanding for over 
+a century. 
+In the centerpiece of the Views, Monroe explained that 
+the spending power carries no incidental power to regulate 
+individuals or States. Echoing Hamilton, Monroe under­
+stood the spending power to consist of “a right to appro­
+priate the public money, and nothing more.” Richardson 
+162. It carries with it “no incidental power, nor does it draw 
+after it any consequences of that kind.” Id., at 168. Mon­
+roe proceeded to carefully distinguish the spending power 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+216 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+from Congress' authority to impose obligations and duties: 
+“[T]he use or application of the money after it is raised is a 
+power altogether of a different character” from Congress' 
+enumerated regulatory powers such as the taxing power; 
+“[i]t imposes no burden on the people, nor can it act on them 
+in a sense to take power from the States.” Id., at 164. 
+Applying this understanding of the spending power to the 
+question of internal improvements, Monroe explained that 
+Congress could only “appropriate the money necessary to 
+make them.” Id., at 168. Where none of Congress' enu­
+merated regulatory powers was applicable, Monroe con­
+cluded, “[f]or every act requiring legislative sanction or sup­
+port the State authority must be relied on.” Ibid. Thus, 
+Congress could not itself pass laws providing for “[t]he con­
+demnation of the land, . . . the establishment of turnpikes and 
+tolls, and the protection of the work when fnished.” Ibid. 
+Monroe's summation of the federal spending power, re­
+fecting that it does not carry with it any regulatory power, 
+was accepted throughout the 19th century by friends and 
+foes of federal power alike. In his 1825 inaugural address, 
+President John Quincy Adams explained that Monroe's Views 
+had “conciliated the sentiments and approximated the opin­
+ions of enlightened minds upon the question of constitutional 
+power.” Inaugural Address, Mar. 4, 1825, in 5 American 
+State Papers, Foreign Relations 753, 755 (1858). Five years 
+later, President Andrew Jackson vetoed the Maysville Road 
+Bill of 1830 for the same reasons Monroe had vetoed the 
+Cumberland Road Bill of 1822: Congress lacks “[t]he right to 
+exercise as much jurisdiction as is necessary to preserve the 
+works and to raise funds by the collection of tolls to keep 
+them in repair,” and “[w]ithout [such power] nothing exten­
+sively useful can be effected.” Richardson 492. 
+Justice Joseph Story's Commentaries on the Constitution 
+also recognized that the spending power did not carry with 
+it any auxiliary power to bind individuals or States. Citing 
+Monroe's Views liberally, Story agreed that Congress could 
+
+Page Proof Pending Publication
+Cite as: 599 U. S. 166 (2023) 
+217 
+Thomas, J., dissenting 
+not enact a system of internal improvements under the Gen­
+eral Welfare Clause. Although he located the spending 
+power in that Clause, Story understood that the power was 
+confned “to mere appropriations of money,” and that, as a 
+result, the Federal Government could not regulate internal 
+improvements except pursuant to its legislative “enumerated 
+powers.” 3 Commentaries on the Constitution of the United 
+States, § 1269, p. 150 (1833); see also Sky 224 (“[A]s read by 
+Story, the General Welfare Clause did not constitute a regu­
+latory power, independent of the spending power, authoriz­
+ing Congress to enact whatever measures it wished . . . under 
+an unlimited power to legislate for the general welfare of the 
+United States”). 
+Although disagreement on whether Congress could spend 
+for purposes beyond the enumerated powers persisted 
+through the Antebellum and Reconstruction eras, the under­
+standing that the spending power did not imply regulatory 
+power persisted. See generally Sky 232–240, 270–291. Be­
+cause Congress was acting solely under its power to spend, 
+it relied on the States' acceptance of terms and upon the 
+States' legislative powers to carry out federal spending 
+programs. 
+D 
+Given this consensus, it is not surprising that the frst fed­
+eral grant-in-aid spending programs were contractual in na­
+ture. The Morrill Act of 1862, perhaps the frst such pro­
+gram, extended an offer to the States to accept donations of 
+federal lands on the condition that the State use the land to 
+establish a college. 12 Stat. 504–505. States had two years 
+to accept the federal terms in the form of an Act by the 
+State's legislature. Id., at 505 Signifcantly, the only con­
+sequence for a State's breach of the use condition was con­
+tractual in nature—“the grant to such State shall cease; and 
+said State shall be bound to pay the United States the 
+amount received of any lands previously sold.” Id., at 504– 
+505. The Second Morrill Act, enacted in 1890, followed the 
+
+218 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+same framework, donating money for the endowment of ag­
+ricultural and mechanical arts colleges, subject to the condi­
+tion that black students not be excluded. Ch. 841, 26 Stat. 
+417. Like the First Morrill Act, the only consequence for 
+noncompliance was that future appropriations under the Act 
+would cease until the State brought itself into compliance. 
+Id., at 419. 
+In the early 20th century, the adoption of the Sixteenth 
+Amendment and the national income tax vastly expanded the 
+revenue available to the Federal Government. But the in­
+creasingly ambitious spending programs that followed did 
+not break the contractual pattern established by the Morrill 
+Acts. Thus, early-20th-century highway grants took the 
+form of an offer to enter a contract, with the consequence of 
+noncompliance being the cutoff of federal funds. See Cor­
+win, 36 Harv. L. Rev., at 574, n. 72 (describing Federal High­
+way Act of 1916); see also id., at 573–575 (collecting other 
+examples). 
+Even in the New Deal era, advocates of far-reaching 
+spending programs continued to understand the spending 
+power as a mere power of appropriation. Professor Corwin, 
+for example, recognized that the States must be depended 
+upon to exercise the legislative power needed to implement 
+such programs. Thus, “federal highway construction re-
+lie[d] on the state power of eminent domain, as well as on 
+state power to police and protect highways during and after 
+their construction.” National-State Cooperation—Its Pres­
+ent Possibilities, 46 Yale L. J. 599, 617 (1937). Similarly, na­
+tional protection of forests depended on “the power of the 
+states to regulate the conduct of persons entering forests,” 
+and the provision of maternity benefts depended on “the 
+power of the cooperating states to compel birth registration, 
+the licensing of mid-wives, etc.” Ibid. Thus, more than 
+100 years after Monroe's Views, it was still well understood 
+that the Federal Government's spending power needed to 
+work with “the wider coercive powers of the states” to ac­
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+219 
+Thomas, J., dissenting 
+complish its ends. Ibid. And, a State's acceptance of fed­
+eral funds in return for exercising its own powers did not 
+expand the Federal Government's legislative powers. 
+In sum, from the framing of the Constitution to well into 
+the 20th century, it was virtually undisputed that Congress' 
+spending power was nothing more than a power to spend. 
+It included no regulatory authority to bind parties, to secure 
+rights or impose duties with the force of federal law, and no 
+authority to directly regulate the States even with their 
+consent. 
+E 
+When cases concerning expansive federal spending pro­
+grams frst began to reach this Court, they vividly illustrated 
+both the enduring understanding of the spending power as 
+a nonregulatory power and the contractual understanding 
+of spending conditions. The Federal Government defended 
+major spending programs on the basis of that understanding, 
+and the programs survived this Court's review only because 
+of those traditional premises. 
+In Massachusetts v. Mellon, 262 U. S. 447 (1923), the Court 
+rejected as nonjusticiable Massachusetts' claim that the Ma­
+ternity Act of 1921 was “an attempt to legislate outside the 
+powers granted to Congress by the Constitution and within 
+the feld of local powers exclusively reserved to the States.” 
+Id., at 482. The Court frst stated that it “[p]robably . . . 
+would be suffcient to point out that the powers of the State 
+are not invaded, since the statute imposes no obligation but 
+simply extends an option which the State is free to accept or 
+reject.” Id., at 480. In other words, the State could not be 
+injured because the Act was not a direct legal regulation. 
+Rather, it was a mere offer to bargain—it “imposed” no “bur­
+den . . . upon the States” and did not require them “to do or 
+to yield anything” of its own force. Id., at 482. The State 
+could not seek judicial redress because the contractual na­
+ture of the Act's provisions meant that States could vindicate 
+their own rights “by the simple expedient of not yielding.” 
+Page Proof Pending Publication
+
+220 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+Ibid.; see also Corwin, 36 Harv. L. Rev., at 579 (noting that 
+the Maternity Act adhered to the traditional requirements of 
+state consent and the “general caveat against jurisdictional 
+rights following in the wake of appropriations”). “[T]he 
+Justices in Mellon understood that Congress' power to spend 
+money is not a legislative power.” Engdahl, 52 S. D. 
+L. Rev., at 498 (emphasis in original). 
+Cases involving New Deal spending programs teach the 
+same lesson. For example, United States v. Butler, 297 U. S. 
+1 (1936), concerned the constitutionality of the Agricultural 
+Adjustment Act, which offered subsidies to farmers not to 
+sell crops. The Government defended the Act on the ground 
+that it did not regulate any private or state party. Instead, 
+“[a]ny commands or restrictions in the Act [were] imposed 
+only upon the use by [federal] administrative offcials of the 
+money granted.” Brief for United States in United States 
+v. Butler, O. T. 1935, No. 401, p. 264. In line with the tradi­
+tional distinction between mere spending and regulatory 
+commands, the Government urged that “Congress ha[d] not 
+gone beyond its power of authorizing an expenditure” pre­
+cisely because “[i]t ha[d] not sought to force or command citi­
+zens to receive the money offered and to perform the condi­
+tions upon which the funds are to be disbursed.” Id., at 265. 
+The Government expressly relied on the contractual nature 
+of the Act's conditions, as distinct from any “exercise of sov­
+ereign regulation”: 
+“It would be most unusual to suppose that a contract 
+of this nature, entered into freely by both parties, is an 
+exercise of sovereign regulation and control over one of 
+the parties or over the subject matter with which the 
+contract deals. . . . The rights of the United States under 
+the contracts are no greater than would be the rights of 
+a private citizen under similar contracts, and enforce­
+ment must be by ordinary judicial process according to 
+the law of the forum. The contracts are not derogatory 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+221 
+Thomas, J., dissenting 
+of any sovereign rights of the States; they are carried 
+out pursuant to and under the protection of the laws of 
+the States. . . . The purpose and effect of the contracts 
+so entered into are simply to accomplish the spending of 
+the money on the conditions imposed by Congress, and 
+in authorizing execution of such contracts Congress was 
+not exerting a power outside of the feld of appropria­
+tion.” Id., at 266–267. 
+The Government also disclaimed that the Act would have 
+pre-emptive effect: Because it went “no further than offering 
+benefts to those who comply with certain conditions,” States 
+“remain[ed] as free after the passage of this Act as before to 
+pass laws rendering it impossible for any of their inhabitants 
+to comply with such conditions.” Id., at 268. Thus, to 
+avoid a Tenth Amendment problem, the Government relied 
+on the traditional distinction between the Federal Govern­
+ment's power to spend and its power to regulate: 
+“The distinction between an application of the Federal 
+lawmaking power to enforce compliance with the desire 
+of Congress and the use of the spending power to offer 
+benefts which might persuade people to that end [was] 
+recognized in this manner by th[e] frst Congresses. 
+.
+.
+.
+.
+. 
+“When the United States goes no further than extend­
+ing benefts to citizens who arrange their affairs in a 
+manner thought benefcial by Congress, there is no di­
+rect exercise of Federal power on those affairs and they 
+remain subject to the unhampered control of the States. 
+Consequently, in a case of this nature, the effect which 
+the Act of Congress will have in a State is dependent 
+entirely upon the voluntary action of that State and its 
+inhabitants.” Id., at 274, 276. 
+In deciding the case, the Court took the Government's con­
+cessions as given, stating, “[i]t is not contended that [the 
+Page Proof Pending Publication
+
+222 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+General Welfare Clause] grants power to regulate agricul­
+tural production.” Butler, 297 U. S., at 64. The Court then 
+agreed with Justice Story's observation that “the only thing 
+granted is the power to tax for the purpose of providing 
+funds for payment of the nation's debts and making provision 
+for the general welfare.” 
+Ibid. Congress' spending power, 
+even if located in the General Welfare Clause, conferred no 
+regulatory power. 
+The Court proceeded to hold the Act unconstitutional pre­
+cisely because it was, in reality, “a statutory plan to regulate 
+and control agricultural production, a matter beyond the 
+powers delegated to the federal government.” Id., at 68. 
+That was because the “regulation [was] not in fact volun­
+tary,” as it would lead to “fnancial ruin” for farmers who 
+refused the Act's benefts. Id., at 70–71. Confrming an­
+other aspect of the traditional doctrine, the Court held that 
+even the purely voluntary consent of private parties could 
+not expand Congress' limited regulatory powers. Id., at 
+74–75.10 
+10 The anticoercion rule refected in Butler remains a vital part of this 
+Court's spending-power jurisprudence. See NFIB, 567 U. S., at 575–585 
+(opinion of Roberts, C. J.); id., at 671–678 (joint dissent of Scalia, Ken­
+nedy, Thomas, and Alito, JJ.). As Butler makes clear, that rule is frmly 
+rooted in the contractual understanding of spending conditions, and NFIB 
+further recognized the close connection between the rule and the anticom­
+mandeering doctrine when spending conditions involving States are at 
+issue. See NFIB, 567 U. S., at 575–585 (opinion of Roberts, C. J.); id., at 
+677–678 (joint dissent). Indeed, the anticoercion rule supplements those 
+doctrines through its recognition of the practical realities of Congress' 
+modern spending power: Because the Federal Government's overwhelm­
+ing fscal resources enable it to create “gun to the head” situations in 
+which there is no practical possibility of opting out, the rule prevents the 
+Government from purchasing the States' regulatory powers to implement 
+federal goals that it cannot attain through its own more limited powers. 
+Id., at 581 (opinion of Roberts, C. J.); accord, id., at 677 (joint dissent) 
+(“Congress effectively engages in this impermissible compulsion when 
+state participation in a federal spending program is coerced, so that the 
+Page Proof Pending Publication
+
+Cite as: 599 U. S. 166 (2023) 
+223 
+Thomas, J., dissenting 
+The challenge to the Social Security Act in Steward Ma­
+chine Co. v. Davis, 301 U. S. 548 (1937), followed a similar 
+pattern but reached the opposite result based on a different 
+level of perceived coercion. As in Butler, the Federal Gov­
+ernment defended a federal statute—here, the Social Secu­
+rity Act—by representing that conditions on the grant of 
+federal funds “are not regulatory” in nature and are thus 
+within the spending power. Brief for Respondent in Stew­
+ard Machine Co. v. Davis, O. T. 1936, No. 837, p. 135. Seek­
+ing to avoid a repeat of its loss in Butler, the Government 
+argued that the program was also not regulatory in fact be­
+cause it did not coerce States to take or refrain from taking 
+any actions. Brief for Respondent in Steward Machine Co. 
+100, 105–106. 
+This time, the Court agreed with the Government, fnding 
+that the Act was not coercive and thus did not “go beyond 
+the bounds of” Congress' spending power. Steward Machine 
+Co., 301 U. S., at 591–592. Then, in rejecting a federalism 
+challenge to the measure, the Court observed that once the 
+State accepted the federal conditions, it was bound with even 
+lesser force than an ordinary contract. Id., at 594–595. 
+The State was “still free, without breach of an agreement, to 
+change her system over night.” Id., at 595. “No offcer or 
+agency of the national Government [could] force a compensa­
+tion law upon her or keep it in existence,” nor could they “su­
+pervise or control the application of the payments.” Ibid.11 
+The Court again demonstrated its adherence to the tradi­
+tional view in Oklahoma v. Civil Serv. Comm'n, 330 U. S. 
+127 (1947). There, the U. S. Civil Service Commission de-
+States' choice whether to enact or administer a federal regulatory pro­
+gram is rendered illusory”). 
+11 Justice Sutherland's dissent recognized that the majority had applied 
+the traditional framework, disagreeing only with its interpretation of how 
+the Social Security Act actually functioned. See Steward Machine Co., 
+301 U. S., at 611–612. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+224 
+HEALTH AND HOSPITAL CORPORATION OF MARION 
+CTY. v. TALEVSKI 
+Thomas, J., dissenting 
+termined that an Oklahoma highway commissioner had vio­
+lated the Hatch Act, pledging to withhold a portion of the 
+State's highway grants equal to two years' of the commis­
+sioner's compensation if the State failed to remove him. 
+Oklahoma challenged the Commission's order and the Act on 
+which it was based as an illicit attempt to regulate the 
+State's internal affairs. Id., at 133. Citing Mellon, the 
+Court held that the Act was valid because it did not directly 
+regulate the State, which had “adopted the `simple expedi­
+ent' of not yielding” by refusing to remove its highway com­
+missioner. 330 U. S., at 143. 
+Thus, to defend these spending programs in the frst half of 
+the 20th century, the Government relied on the long-settled 
+understanding that the power to spend carries with it no 
+sovereign legislative power to create rights and duties. To 
+the contrary, the Government represented that these pro­
+grams had the binding force, at most, of contracts. They did 
+not pre-empt, nor did they bind States with the force of law; 
+they merely spent federal dollars upon conditions, the viola­
+tion of which entitled the Government to cease further pay­
+ments. The Court took this position as a given, and the 
+contractual nature of spending conditions is precisely what 
+saved them from constitutional challenge. 
+In sum, the historical record is clear and consistent on a 
+critical proposition: The spending power is the power to 
+spend only. Any duties imposed by regulatory legislation, 
+and any correlative rights secured by law, must fnd their 
+source in one of Congress' enumerated powers or the legisla­
+tive powers of the States. Congress' spending power cannot 
+secure rights by law. 
+IV 
+The contractual nature of spending conditions was taken 
+as a given until the second half of the 20th century, when 
+individuals frst began to bring § 1983 suits premised on 
+violations of conditions contained within spending statutes 
+(usually, the Social Security Act). From the enactment of 
diff --git a/corpus/law/text/270262de9a59ee0e.txt b/corpus/law/text/270262de9a59ee0e.txt
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+Poverty in Judgecraft: New Narratives through the Language of Equality – CORRIGENDUM
+
+CORRIGENDUM
+Poverty in Judgecraft: New Narratives through
+the Language of Equality – CORRIGENDUM
+Sarah Ganty
+Yale Law School, New Haven, Connecticut, USA and UCLouvain, Louvain-la-Neuve, Belgium
+DOI: https://doi.org/10.1017/glj.2025.6. Published by Cambridge University Press, 1 September 2025.
+Keywords: Poverty; judgecraft; narratives; culture; equality; power; stigmatization; racialization; rationalization
+The author has informed us of the following corrections to the published article.
+In Section II, the following sentence is inaccurate:
+“The Court could have opted for a narrative that excluded such a myth—after all, social benefits
+were available in Sweden, Ms. Dano’s country.” (p. 175)
+It should read:
+“The Court could have opted for a narrative that excluded such a myth—especially if social
+benefits were available in Romania, Ms. Dano’s country.”
+The reference in footnote 203 is incorrect.
+The text containing the footnote reads:
+“Considering that the “unemployment of a parent is already a factor that has a harmful impact on
+children,” and that such restriction “makes their position even more difficult,”203 the Committee
+insisted on the fact:” (p. 195)
+The correct citation is:
+203. Central Union for Child Welfare (CUCW) v. Finland, Complaint No. 139/2016, § 71 (Sept. 11,
+2019), https://hudoc.esc.coe.int/.
+Reference
+Ganty S. Poverty in Judgecraft: New Narratives through the Language of Equality. German Law Journal. 2025;26(2):170–197.
+doi:10.1017/glj.2025.6
+© The Author(s), 2025. Published by Cambridge University Press on behalf of the German Law Journal. This is an Open Access article,
+distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits
+unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
+Cite this article: Ganty S (2025). Poverty in Judgecraft: New Narratives through the Language of Equality – CORRIGENDUM.
+German Law Journal 26, 1718. https://doi.org/10.1017/glj.2025.10162
+German Law Journal (2025), 26, p. 1718
+doi:10.1017/glj.2025.10162
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+Anything Goes in Private Law Theory? On the Epistemic and Ontological Commitments of Private Law Multi-Pluralism – ERRATUM
+
+ERRATUM
+Anything Goes in Private Law Theory? On the Epistemic
+and Ontological Commitments of Private Law
+Multi-Pluralism – ERRATUM*
+Martijn W. Hesselink
+https://doi:10.1017/glj.2022.52. Published by Cambridge University Press on behalf of the German
+Law Journal, 25 July 2022.
+Keywords: Pluralism; legal epistemology; legal ontology; skepticism; democratic private law
+During the editing process, the title of the article was inadvertently changed to include an
+additional ‘and’ without the author’s knowledge. On initial publication, the article bore this
+incorrect title “Anything Goes in Private Law Theory? On the Epistemic and Ontological
+Commitments of Private Law and Multi-Pluralism”.
+This article has now been updated with the intended title “Anything Goes in Private Law Theory?
+On the Epistemic and Ontological Commitments of Private Law Multi-Pluralism”. We apologise
+to the author for the error and issue this erratum for the sake of transparency in the scholarly
+record.
+Reference
+Hesselink, M. (2022). Anything Goes in Private Law Theory? On the Epistemic and Ontological Commitments of Private Law
+Multi-Pluralism. German Law Journal, 23(6), 891–899. doi: 10.1017/glj.2022.52
+*The online version of this article has been updated since original publication. A notice detailing the change has also been
+published
+© The Author(s), 2022. Published by Cambridge University Press on behalf of the German Law Journal. This is an Open Access article,
+distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits
+unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
+Cite this article: Hesselink MW (2022). Anything Goes in Private Law Theory? On the Epistemic and Ontological
+Commitments of Private Law Multi-Pluralism – ERRATUM. German Law Journal 23, 1158. https://doi.org/10.1017/
+glj.2022.61
+German Law Journal (2022), 23, pp. 1158
+doi:10.1017/glj.2022.61
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+PRELIMINARY PRINT 
+Volume 607 U. S. Part 2 
+Pages 438–464 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+February 25, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+438 
+OCTOBER TERM, 2025 
+Syllabus 
+GEO GROUP, INC. v. MENOCAL et al. 
+certiorari to the united states court of appeals for 
+the tenth circuit 
+No. 24–758. Argued November 10, 2025—Decided February 25, 2026 
+Petitioner GEO Group operates a private detention facility in Aurora, Col­
+orado, under a contract with U. S. Immigration and Customs Enforce­
+ment (ICE). Respondent Alejandro Menocal, a former detainee at the 
+Aurora facility, initiated this class action, alleging GEO's work policies 
+for detainees violate a federal bar on forced labor and Colorado's prohi­
+bition on unjust enrichment. GEO responded that the suit must be 
+dismissed under Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, which 
+held that a federal contractor cannot be held liable for conduct that the 
+Government has lawfully “authorized and directed” the contractor to 
+perform. Id., at 20–21. GEO argued that ICE had authorized and di­
+rected it to carry out the challenged labor policies. But the District 
+Court did not read GEO's contract with the Government to instruct 
+GEO to adopt those policies. The District Court thus concluded that 
+the Yearsley doctrine did not relieve GEO of legal responsibility and a 
+trial would be necessary. GEO immediately fled an appeal, which the 
+Court of Appeals for the Tenth Circuit dismissed for lack of jurisdiction, 
+holding that an order denying Yearsley protection does not qualify for 
+interlocutory review under Cohen v. Benefcial Industrial Loan Corp., 
+337 U. S. 541. 
+Held: Because Yearsley provides federal contractors a potential merits 
+defense rather than an immunity from suit, a pretrial order denying 
+Yearsley protection is not immediately appealable. Pp. 443–452. 
+(a) The courts of appeals have jurisdiction over appeals from “fnal 
+decisions of the district courts.” 28 U. S. C. § 1291. A decision gener­
+ally is “fnal” only when it “resolves the entire case”—when it “ends the 
+litigation” on the merits or otherwise. Ritzen Group, Inc. v. Jackson 
+Masonry, LLC, 589 U. S. 35, 37–38. That fnal-judgment rule, by pre­
+venting piecemeal appeals, “promotes the effcient administration of jus­
+tice” and “preserves the proper balance between trial and appellate 
+courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37. 
+Under the collateral-order doctrine, however, a “small class” of deci­
+sions are treated as “fnal”—and thus immediately appealable—even 
+though they do not end a case. Cohen, 337 U. S., at 546. To get imme­
+diate review, a prejudgment order must satisfy the three conditions this 
+Court has “distilled” from Cohen. Will v. Hallock, 546 U. S. 345, 349. 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 438 (2026) 
+439 
+Syllabus 
+The order must “(1) conclusively determine the disputed question, (2) 
+resolve an important issue completely separate from the merits of the 
+action, and (3) be effectively unreviewable on appeal from a fnal judg­
+ment.” Van Cauwenberghe v. Biard, 486 U. S. 517, 522. 
+Whether the denial of a pretrial request to dismiss a case like the one 
+here can satisfy Cohen's third condition will generally turn on whether 
+the defendant has asserted a defense to liability or instead an immunity 
+from suit. A party asserting a merits defense advances some reason 
+why his conduct was not unlawful and he should not be found liable. 
+But a party asserting an immunity need not challenge the merits of the 
+charge against him: his claim of immunity does not turn on his conduct's 
+legality. That difference entails another. Because it ensures a defend­
+ant need not “answer for his conduct” in court at all, an immunity is in 
+its “essence” an “entitlement not to stand trial.” Mitchell v. Forsyth, 
+472 U. S. 511, 525–526. A liability defense, by contrast, does not allow 
+the defendant to escape legal proceedings, because it is through them 
+that the asserted defense is addressed and liability fnally determined. 
+And that divergence matters for Cohen's third condition, which requires 
+that the order involve a right that “would be irretrievably lost absent 
+an immediate appeal.” Van Cauwenberghe, 486 U. S., at 524. The 
+right not to stand trial is irretrievably lost once trial occurs, but the 
+right to a fnding of non-liability can be effectively vindicated after trial, 
+through reversal of an adverse fnal judgment. So, if a defendant as­
+serts a liability defense, Cohen is likely to block an immediate appeal; if 
+he asserts an immunity, Cohen will likely allow it. Pp. 443–447. 
+(b) Does Yearsley offer federal contractors a merits defense or in­
+stead an immunity? Menocal says a defense, because Yearsley gives 
+contractors only a way to show that their conduct complied with the 
+law. GEO says an immunity—more specifcally, “derivative sovereign 
+immunity”—where the Government's own immunity extends to contrac­
+tors who meet specifed conditions. Brief for GEO 15. 
+Yearsley provides a potential defense to liability, not an immunity 
+from suit. In Yearsley, the Court held that a contractor that had 
+fooded the Yearsleys' property while performing work “authorized and 
+directed by the Government” was not liable to the landowner. 309 
+U. S., at 20. The Court explained that a contractor acting as an agent 
+of the Government could be held liable for injurious conduct in only two 
+circumstances: when “he exceeded his authority” or when that authority 
+“was not validly conferred.” Id., at 21. The Court found neither cir­
+cumstance obtained in Yearsley, because the contractor received a law­
+ful authorization and stayed within the bounds of the authority given. 
+That reasoning describes a defense, not an immunity: Yearsley's protec­
+tion runs out when the contractor may have violated the law—when the 
+
+Page Proof Pending Publication
+440 
+GEO GROUP, INC. v. MENOCAL 
+Syllabus 
+contractor either acted under an illegal authorization or exceeded the 
+scope of a legal one. Yearsley thus ensures that it will never shield 
+unlawful conduct, in the way that all immunities do. 
+GEO's contrary view—that it enjoys “derivative sovereign immu­
+nity”—would put Yearsley in confict with the general rule that sover­
+eign immunity is not transferrable to government agents. The Court 
+has repeatedly held that the Government's immunity from suit “does 
+not extend to those that act[ ] in its name,” Sloan Shipyards Corp. v. 
+United States Shipping Bd. Emergency Fleet Corporation, 258 U. S. 
+549, 568, or do its work, Keifer & Keifer v. Reconstruction Finance 
+Corporation, 306 U. S. 381, 388, including by “reason of a contract” with 
+the Government, Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583; see 
+also Hopkins v. Clemson, 221 U. S. 636, 642–643. The whole thrust of 
+those decisions is to deny that government agents can assert—whether 
+always or sometimes—a “derived” form of sovereign immunity. Instead, 
+sovereign immunity belongs alone to the Government. Pp. 447–451. 
+(c) Once Yearsley is properly understood as a merits defense, the 
+question before the Court almost answers itself. Like the denial of 
+other defenses, a district court's denial of Yearsley protection is not 
+immediately appealable under § 1291. Such a ruling is not, as Cohen's 
+third condition demands, “effectively unreviewable on appeal from a 
+fnal judgment.” Van Cauwenberghe, 486 U. S., at 522. The right that 
+a merits defense affords is to a fnding of non-liability. And that right— 
+unlike the right not to stand trial—is fully vindicable on appeal from a 
+fnal judgment. Accordingly, the fnality rule of § 1291 precludes inter­
+locutory review of a Yearsley denial. Pp. 451–452. 
+Affrmed and remanded. 
+Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson, JJ., 
+joined, and in which Thomas, J., joined as to Parts I and III. Thomas, 
+J., fled an opinion concurring in part and concurring in the judgment, post, 
+p. 452. Alito, J., fled an opinion concurring in the judgment, post, p. 453. 
+Dominic E. Draye argued the cause for petitioner. With 
+him on the briefs were William E. Eye, Scott A. Schipma, 
+and Joseph Negron, Jr. 
+Jennifer D. Bennett argued the cause for respondents. 
+With her on the brief were Jessica Garland, Deepak Gupta, 
+Gregory A. Beck, and Thomas Scott-Railton. 
+Sopan Joshi argued the cause for the United States as 
+amicus curiae urging affrmance. With him on the brief 
+
+Cite as: 607 U. S. 438 (2026) 
+441 
+Opinion of the Court 
+were Solicitor General Sauer, Assistant Attorney General 
+Shumate, Deputy Solicitor General Harris, Michael S. 
+Raab, and Ashley C. Honold.* 
+Justice Kagan delivered the opinion of the Court. 
+In Yearsley v. W. A. Ross Constr. Co., 309 U. S. 18, 20 
+(1940), this Court held that a federal contractor cannot be 
+held liable for conduct that the Government has lawfully “au­
+thorized and directed” the contractor to perform. Rather, 
+liability may attach only if the authorization was unlawful or 
+if the contractor acted outside its scope. See id., at 20–21. 
+The question here is whether a contractor may take an 
+immediate appeal of a district court's pretrial order denying 
+Yearsley protection. The answer is no. Because Yearsley 
+provides a defense to liability, not an immunity from suit, an 
+order denying its protection can be effectively reviewed 
+after a fnal judgment. So appellate review of such an 
+order, as of most pretrial rulings, must await completion of 
+the district court's proceedings. 
+*Briefs of amici curiae urging reversal were fled for the Chamber of 
+Commerce of the United States of America by Michael R. Huston, Shae 
+McPhee, Jonathan D. Urick, and Nicholas S. Crown; for the Coalition 
+for Common Sense in Government Procurement by Nicole Saharsky and 
+Charles A. Rothfeld; for MVM, Inc., by Paul J. Fraidenburgh, Alexander 
+P. Carroll, and Anne M. Voigts; for the Nevada Hospital Association by 
+Hugh C. Griffn; for the Professional Services Council—The Voice of the 
+Government Services Industry by Daniel L. Russell, Jr., and Raymond 
+B. Biagini; and for Alexander Volokh, pro se. 
+Briefs of amici curiae urging affrmance were fled for the American 
+Association for Justice by Robert S. Peck, Bruce Plaxen, and Jeffrey R. 
+White; for Citizens for Responsibility and Ethics in Washington by Jona­
+than Maier and Donald K. Sherman; for Public Citizen by Nandan M. 
+Joshi, Scott L. Nelson, and Allison M. Zieve; for the Roderick and Solange 
+MacArthur Justice Center et al. by Amit Jain, Ellen Noble, Anya Bidwell, 
+and Patrick Jaicomo; and for Erwin Chemerinsky by Steven A. Hirsch 
+and Anne Bloom. 
+Georgina Yeomans, Teague Paterson, and Matthew Stark Blumin fled 
+a brief of amicus curiae for the American Federation of State, County 
+and Municipal Employees. 
+Page Proof Pending Publication
+
+442 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of the Court 
+I 
+Petitioner GEO Group operates a private detention facility 
+in Aurora, Colorado, under a contract with U. S. Immigration 
+and Customs Enforcement (ICE). The facility holds individ­
+uals whose immigration proceedings are pending. Respond­
+ent Alejandro Menocal was detained there in 2014. Soon 
+afterward, he initiated this class action on behalf of the Au­
+rora facility's detainees. 
+The suit challenges two policies GEO used to put the de­
+tainees to work, thereby reducing its own labor costs. 
+First, the so-called Sanitation Policy required detainees to 
+clean, without any pay, all the facility's common areas. A 
+detainee's failure to perform his assigned tasks led to esca­
+lating sanctions, up to 72 hours in solitary confnement. 
+Second, the so-called Voluntary Work Program offered $1 
+per day to detainees for other kinds of needed work, such 
+as preparing food and doing laundry. Menocal's complaint 
+alleged that the former policy violated a federal bar on 
+forced labor and that the latter breached Colorado's prohibi­
+tion on unjust enrichment. 
+Following discovery, the District Court addressed GEO's 
+contention that Yearsley required the suit's dismissal. That 
+was so, the argument ran, because ICE had by contract “au­
+thorized and directed” GEO to carry out the two challenged 
+policies. Defendant's Cross-Motion for Summary Judgt. in 
+No. 14–2887 (D Colo., June 25, 2020), ECF Doc. 284, p. 17. 
+But the District Court did not read the government contract 
+that way. Nothing in its terms, the court found, instructed 
+GEO to adopt the work rules at issue. Rather, in “inde­
+pendently develop[ing] and implement[ing]” those rules, 
+GEO “far exceeded its contractual obligations.” 
+635 
+F. Supp. 3d 1151, 1173 (Colo. 2022). So the Yearsley doc­
+trine, the District Court concluded, did not relieve GEO of 
+legal responsibility. Instead, a trial would be necessary to 
+address whether GEO's policies violated the referenced bans 
+on forced labor or unjust enrichment. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+443 
+Opinion of the Court 
+GEO immediately fled an appeal, but the Court of Appeals 
+for the Tenth Circuit dismissed it for lack of jurisdiction. 
+See 2024 WL 4544184 (Oct. 22, 2024). Appellate jurisdic­
+tion, the court explained, seldom extends to an order that 
+does not terminate the litigation at issue. Such an order 
+qualifes for interlocutory review only if it satisfes three con­
+ditions deriving from this Court's decision in Cohen v. Bene­
+fcial Industrial Loan Corp., 337 U. S. 541 (1949). And an 
+order denying Yearsley protection, the Tenth Circuit held, 
+does not do so. The court saw no need to address the frst 
+or third Cohen conditions because it concluded that a Years­
+ley denial funked the second: Such a ruling is not (as Cohen 
+demands) “completely separate from the merits” of the suit. 
+2024 WL 4544184, *7. That is because, the court reasoned, an 
+inquiry into what the Government instructed the contractor 
+to do is relevant to both Yearsley's application and the “law­
+fulness of the contractor's challenged actions.” Id., at *8. 
+We granted certiorari, 605 U. S. 968 (2025), to resolve 
+whether a pretrial order denying Yearsley protection to a 
+government contractor is immediately appealable. Like the 
+Tenth Circuit, we hold that it is not. But unlike the Tenth 
+Circuit, we focus on the third Cohen condition, which re­
+quires an order to be effectively unreviewable on appeal from 
+a fnal judgment. 
+II 
+“Finality as a condition of review is an historic characteris­
+tic of federal appellate procedure.” Cobbledick v. United 
+States, 309 U. S. 323, 324 (1940). Originating in the First 
+Judiciary Act of 1789, the fnality requirement is now codifed 
+in 28 U. S. C. § 1291. The courts of appeals, that section pro­
+vides, have jurisdiction over appeals from “fnal decisions of 
+the district courts.” And a decision generally is “fnal” 
+under § 1291 only when it “resolves the entire case”—when it 
+“ends the litigation” (on the merits or otherwise) and “leaves 
+nothing for the court to do but execute the judgment.” Rit­
+zen Group, Inc. v. Jackson Masonry, LLC, 589 U. S. 35, 37–38 
+Page Proof Pending Publication
+
+444 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of the Court 
+(2020). That fnal-judgment rule, by preventing piecemeal 
+appeals, “promotes the effcient administration of justice” 
+and “preserves the proper balance between trial and appellate 
+courts.” Microsoft Corp. v. Baker, 582 U. S. 23, 36–37 (2017). 
+For a “small class” of decisions, however, the fnality rule 
+gives ground and allows interlocutory appeals. Cohen, 337 
+U. S., at 546. Section 1291, we have often explained, re­
+quires a “practical rather than a technical construction,” and 
+thus may treat as “fnal” certain decisions that do not end a 
+case. Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 
+106 (2009) (quoting Cohen, 337 U. S., at 546). We identify 
+those decisions by category, not case-specifc circumstances. 
+See Mohawk, 558 U. S., at 107. And we erect a high bar. 
+A non-terminal order may be appealed, Cohen held, only if 
+it “fnally determine[s] claims of right separable from, and 
+collateral to, rights asserted in the action, too important to 
+be denied review and too independent of the cause itself to 
+require that appellate consideration be deferred.” 337 U. S., 
+at 546. That so-called collateral-order doctrine, we have 
+since underscored, is “narrow,” “stringent,” and of “modest 
+scope.” Digital Equipment Corp. v. Desktop Direct, Inc., 511 
+U. S. 863, 868 (1994); Will v. Hallock, 546 U. S. 345, 350 (2006). 
+To keep it that way, this Court has “distilled” the Cohen 
+ruling into three non-negotiable conditions. Will, 546 U. S., 
+at 349. A pre-judgment order, to get immediate review, 
+must “(1) conclusively determine the disputed question, (2) 
+resolve an important issue completely separate from the 
+merits of the action, and (3) be effectively unreviewable on 
+appeal from a fnal judgment.” Van Cauwenberghe v. 
+Biard, 486 U. S. 517, 522 (1988). Failure on any component 
+of that three-part test is fatal. 
+When, as here, an order denies a pretrial request to dis­
+miss, appealability under Cohen will generally turn on 
+whether the defendant has asserted a defense to liability or 
+instead an immunity from suit. See Mitchell v. Forsyth, 472 
+U. S. 511, 526–527 (1985). If a defense, Cohen is likely to 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 438 (2026) 
+445 
+Opinion of the Court 
+block an immediate appeal; if an immunity, Cohen will likely 
+allow it. To show why, we describe below the difference 
+between a merits defense and an immunity; what that differ­
+ence entails for the right to avoid trial; and how that right 
+matters in applying the third Cohen condition. Once that is 
+done, it becomes clear why, as later described, the parties 
+here mainly contest whether Yearsley offers an immunity or 
+just a merits defense. See infra, at 447–448.1 
+To start, a party asserting a merits defense in a lawsuit 
+makes a fundamentally different kind of argument than a 
+party asserting an immunity. The former advances some 
+reason why his conduct was not unlawful—or said otherwise, 
+why under the law he did nothing wrong. And so, that de­
+fendant says, he should not be found liable: Because he 
+obeyed the law, he should not, for example, have to pay dam­
+ages. By contrast, a party asserting an immunity “makes 
+no challenge” to “the merits of the charge against him.” 
+Abney v. United States, 431 U. S. 651, 659 (1977). That de­
+fendant need never say he followed the law, because his claim 
+of immunity does not turn on his conduct's legality. “[A]n 
+immunity frees one who enjoys it from a lawsuit whether or 
+not he acted wrongly.” Richardson v. McKnight, 521 U. S. 
+399, 403 (1997). A classic example is sovereign immunity: It 
+shields the Government from suit (absent a waiver) regard­
+less whether the Government violated the law. See, e. g., 
+FDIC v. Meyer, 510 U. S. 471, 475 (1994).2 
+1 Note that one category of cases exists outside this dichotomy: a non­
+merits-based defense that also is not an immunity. On occasion, this 
+Court has decided that a defense, although barring suit irrespective of 
+the merits, still fails to qualify as an immunity because it does not serve 
+suffciently “weighty public objective[s].” Will v. Hallock, 546 U. S. 345, 
+353 (2006) (so holding with respect to the Federal Tort Claims Act's judg­
+ment bar). That “public interest” wrinkle, however, never arises if the 
+defense is on the merits—which, as we will explain, is the case here. 
+2 Qualifed immunity is, in the respect relevant here, the same. That 
+doctrine shields a defendant even when the claim against him “in fact has 
+merit”—or otherwise said, even when he violated the law—so long as the 
+
+446 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of the Court 
+That difference between a merits defense and an immunity 
+entails another: The latter, but not the former, is in its “es­
+sence” an “entitlement not to stand trial.” Mitchell, 472 
+U. S., at 525. Because an immunity applies irrespective of 
+the merits, the protection it offers is not a simple fnding of 
+non-liability. Rather, the immunity ensures that the defend­
+ant need not “answer for his conduct” in court at all—that 
+he avoids, in addition to liability, all the usual “burdens of 
+litigation,” including a trial. Id., at 525–526. And so we 
+typically describe the protection in just that way: as an im­
+munity “from suit.” Id., at 526 (emphasis in original); see, 
+e. g., Thacker v. TVA, 587 U. S. 218, 221 (2019); Jam v. Inter­
+national Finance Corp., 586 U. S. 199, 202 (2019). A “mere 
+defense” to liability, as we have noted, offers something dif­
+ferent, and of lesser value. Mitchell, 472 U. S., at 526. Be­
+cause it establishes that the defendant acted lawfully, a valid 
+defense leads to a judgment of non-liability. But it does not 
+allow the defendant to escape the varied rigors and costs of 
+legal proceedings. Indeed, it is in and through those pro­
+ceedings that the asserted defense is addressed and liability 
+fnally determined. 
+And that divergence—in whether the defendant possesses 
+a right not to stand trial—matters for the third Cohen condi­
+tion. Again, that condition states that a non-terminal order 
+may be appealed when issued only if it is “effectively unre­
+viewable on appeal from a fnal judgment.” Van Cauwen­
+berghe, 486 U. S., at 522; see supra, at 444. For that to be 
+true, we have explained, the order must involve a right that 
+“would be irretrievably lost absent an immediate appeal.” 
+Van Cauwenberghe, 486 U. S., at 524. The right to avoid 
+trial fts that description. It is irretrievably lost once trial 
+occurs, even supposing the defendant were to prevail on the 
+law at that time was not “clearly established.” Camreta v. Greene, 563 
+U. S. 692, 705 (2011). “Like other forms of immunity,” then, qualifed im­
+munity offers protection “even when [the defendant] acts unlawfully.” 
+Brief for United States as Amicus Curiae 23. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+447 
+Opinion of the Court 
+merits. And so, in the ordinary case, the denial of an immu­
+nity is immediately appealable. See ibid.; Abney, 431 U. S., 
+at 659–660. But the right to a fnding of non-liability stands 
+on a different footing: It can be effectively vindicated after 
+a trial has occurred, through the reversal of an adverse fnal 
+judgment. And so the denial of a merits defense is gener­
+ally appealable only once trial-court proceedings have ended. 
+See Van Cauwenberghe, 486 U. S., at 524; Mitchell, 472 U. S., 
+at 526. 
+In short, then, distinguishing between a merits defense 
+and an immunity from suit, in the way described above, of­
+fers a ready way of determining whether the denial of a re­
+quest to dismiss a case can satisfy Cohen's third condition for 
+interlocutory review.3 
+III 
+For just that reason, the parties here mainly dispute 
+whether our Yearsley decision offers federal contractors a 
+3 By the same token, that distinction is likely to determine whether the 
+other two Cohen conditions are met, though we need not here address the 
+reasons in any detail. See Puerto Rico Aqueduct and Sewer Authority 
+v. Metcalf & Eddy, Inc., 506 U. S. 139, 144 (1993) (“Once it is established 
+that” a State is “immune from suit in federal court, it follows that the 
+elements of the Cohen collateral order doctrine are satisfed”). Recall 
+that Cohen's second condition, on which the Court of Appeals relied, de­
+mands that the order “resolve an important issue completely separate 
+from the merits of the action.” Van Cauwenberghe v. Biard, 486 U. S. 
+517, 522 (1988); see supra, at 444. A decision on a defense, addressing 
+the legality of the defendant's conduct, goes directly to the suit's merits— 
+whereas a decision on an immunity, applying regardless of that conduct's 
+legality, does not. Similarly for the frst condition, which is that the order 
+“conclusively determine the disputed question.” Van Cauwenberghe, 486 
+U. S., at 522. When a defense turns on contested facts, as is often true, 
+a pretrial order denying it functions only to defer its resolution until trial. 
+By contrast, we have held, a pretrial denial of an immunity always acts as 
+a “fully consummated decision” because nothing can then happen to avert 
+“the trial the defendant maintains is barred.” Mitchell v. Forsyth, 472 
+U. S. 511, 527 (1985) (quoting Abney v. United States, 431 U. S. 651, 659 
+(1977)). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+448 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of the Court 
+merits defense or instead an immunity. Menocal (supported 
+by the United States as amicus curiae) says a defense, be­
+cause Yearsley gives contractors only a way to show that 
+their conduct complied with the law. GEO says an immu­
+nity—more specifcally, “derivative sovereign immunity.” 
+Brief for GEO 15. Under Yearsley, GEO contends, the Gov­
+ernment's own immunity extends to contractors who meet 
+specifed conditions, thereby giving them the “right not to 
+stand trial.” Brief for GEO 15. So which is it—a defense 
+or an immunity? 
+Yearsley involved a suit by landowners against a federal 
+contractor for fooding their property. The Government had 
+hired the contractor to redirect the Missouri River in order 
+to improve its navigation. The construction company, as 
+specifed in the contract, built dikes in a part of the river 
+near where the Yearsleys owned a farm. The result, as ex­
+pected, was to wash away almost 100 acres of their land. 
+The Yearsleys did not dispute that the contractor's work was 
+“all authorized and directed by the Government.” 309 U. S., 
+at 20. Nonetheless, they sued the contractor for money 
+damages. 
+This Court held that there was “no liability on the part of 
+the contractor.” Id., at 21. Drawing from multiple prece­
+dents involving agency law, the Court explained that a con­
+tractor acting as an agent of the Government could be held 
+liable for injurious conduct in only two circumstances: when 
+“he exceeded his authority” or when that authority “was not 
+validly conferred.” Ibid. Here, neither circumstance ob­
+tained. As to the second, the Court explained that the Gov­
+ernment had “validly” authorized the company to food the 
+Yearsleys' land, because the Government itself possessed 
+that legal right and had properly delegated it by contract. 
+Id., at 21–22. And as to the frst, the Court concluded that 
+all the company's work had stayed within the bounds of the 
+authority given: The Government had provided instructions, 
+and the contractor had merely “execut[ed] its will.” Id., at 
+
+Cite as: 607 U. S. 438 (2026) 
+449 
+Opinion of the Court 
+20–21. Given both those facts—the Government's lawful au­
+thorization and the contractor's compliance with it—the 
+Court could see “no ground for holding [the contractor] lia­
+ble.” Id., at 22. 
+That reasoning describes a defense, not an immunity. 
+Yearsley provides protection to a contractor when it has re­
+ceived a lawful authorization and acted according to its 
+terms—meaning, when the contractor has acted within legal 
+bounds. So in invoking Yearsley, the contractor is making 
+the argument of a merits defense—that it is not liable be­
+cause it has complied with the law. See supra, at 445. 
+Conversely, Yearsley's protection runs out when the contrac­
+tor may have violated the law—when the contractor either 
+acted under an illegal authorization or exceeded the scope of 
+a legal one. By drawing the line there, Yearsley ensures 
+that it will never shield unlawful conduct, in the way that all 
+immunities do. See supra, at 445. In short, because Year­
+sley protects a contractor only when—and only because—it 
+has acted lawfully, Yearsley operates as a defense to liability 
+on the merits. And that is consistent with all Yearsley's lan­
+guage. The decision never refers to an “immunity,” or oth­
+erwise suggests that the defendant receives a pass from legal 
+proceedings; it asks only whether the contractor may be 
+found “liable.” 309 U. S., at 21–22. 
+Still more, GEO's contrary view would put Yearsley in con­
+fict with the general rule that sovereign immunity is not 
+transferrable to agents, including contractors, of a govern­
+ment. As Justice Holmes once explained, the Federal Gov­
+ernment's immunity from a suit (absent a statute providing 
+otherwise) “does not extend to those that act[ ] in its name.” 
+Sloan Shipyards Corp. v. United States Shipping Bd. Emer­
+gency Fleet Corporation, 258 U. S. 549, 568 (1922). The 
+Court repeated that precept in the Term just before Year­
+sley: “[T]he government does not become the conduit of its 
+immunity in suits against its agents” just because “they 
+do [the government's] work.” Keifer & Keifer v. Recon­
+Page Proof Pending Publication
+
+450 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of the Court 
+struction Finance Corporation, 306 U. S. 381, 388 (1939). 
+Rather, the “exceptional freedom from legal responsibility” 
+that sovereign immunity offers is “confned” to the sovereign 
+entity itself. Ibid. Or again, a few Terms after Yearsley: 
+A private contractor cannot obtain “[i]mmunity from suit” 
+by “reason of a contract” it made with the Government. 
+Brady v. Roosevelt S. S. Co., 317 U. S. 575, 583 (1943). GEO 
+tries to bypass those holdings by arguing that they preclude 
+a contractor from asserting only “unconditional” sovereign 
+immunity, not the (supposed) “derivative sovereign immu­
+nity” Yearsley offers, which is conditioned on compliance 
+with the Government's lawful directives. Reply Brief 6–7. 
+But the proposed distinction is strained. The whole thrust 
+of the decisions is to deny that government agents can as­
+sert—whether always or sometimes—a “derived” form of 
+sovereign immunity. Rather, the Court insisted, sovereign 
+immunity belongs alone to the Government. 
+And another, pre-Yearsley decision proves the point, by 
+relegating a state agent that had asserted sovereign immu­
+nity to a merits defense, whose contours anticipated what 
+Yearsley would offer. See Hopkins v. Clemson, 221 U. S. 
+636 (1911). Oddly enough, the suit challenged the same kind 
+of conduct involved in Yearsley: The government agent had 
+fooded a person's land. The State itself, the Court noted, 
+would have had “immunity from [a] suit” based on such con­
+duct. 221 U. S., at 642. But an agent working on the 
+State's behalf could not “avail itself” of that special “exemp­
+tion” from “judicial process.” Id., at 642, 645. “[I]mmunity 
+from suit,” the Court explained, “is a high attribute of sover­
+eignty—a prerogative of the State itself”—which cannot be 
+invoked by the State's agents. Id., at 642–643. Yet all was 
+not lost: The agent got something. Although the agent was 
+“not exempt from suit,” it could “successfully defend” 
+against the charges by showing the “lawful authority under 
+which [it] acted.” Id., at 643. Those terms evoke the ones 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+451 
+Opinion of the Court 
+Yearsley used later. See 309 U. S., at 22 (precluding liability 
+for a contractor “acting under” “validly conferred” author­
+ity); supra, at 448–449. And they function not, as GEO pos­
+its, to condition the transfer of sovereign immunity, but to 
+describe something different—as the Court made explicit, a 
+merits “defen[se].” Hopkins, 221 U. S., at 643.4 
+Once Yearsley is understood in that way—as a merits de­
+fense—the question before us almost answers itself: No, a 
+district court's denial of Yearsley protection is not immedi­
+ately appealable under § 1291. Like the denial of other de­
+fenses, such a ruling is not, as Cohen's third condition de­
+mands, “effectively unreviewable on appeal from a fnal 
+judgment.” Van Cauwenberghe, 486 U. S., at 522. The 
+right that a merits defense affords is to a fnding of non-
+liability. And that right—unlike the right not to stand trial— 
+is fully vindicable on appeal from a fnal judgment. See 
+Swint v. Chambers County Comm'n, 514 U. S. 35, 43 (1995); 
+supra, at 446–447. All an appellate court need do at that 
+4 GEO counters that two of our decisions refer to Yearsley as offering 
+“immunity,” see Brief for GEO 17, 23, but that argument makes far too 
+much of one piece of loose language. The frst cited case, Brady v. Roose­
+velt S. S. Co., 317 U. S. 575 (1943), mainly cuts against GEO. As noted 
+above, the Court there rejected the view that a government contractor 
+obtains “[i]mmunity from suit” by virtue of its contractual relation. Id., 
+at 583; see supra, at 450. The Court then turned to Yearsley, fnding it 
+not to apply because the suit alleged negligent conduct, outside what the 
+Government had authorized. In that half-paragraph, the decision once 
+refers to Yearsley as providing a “certain immunity.” 317 U. S., at 583. 
+But it apparently used that term in a colloquial sense, as something of 
+a synonym for “protection.” The Court's fuller description of Yearsley 
+explains that it relieves the contractor of “liability,” without suggesting 
+that it also offers a pass from litigation. 317 U. S., at 583. And the sec­
+ond cited case, Campbell-Ewald Co. v. Gomez, 577 U. S. 153 (2016), gives 
+GEO even less to work with. That decision merely quotes the imprecise 
+phrase in Brady on the way to rejecting another contractor's claim (even 
+more expansive than GEO's) to share in the Government's sovereign im­
+munity. 577 U. S., at 166. 
+Page Proof Pending Publication
+
+452 
+GEO GROUP, INC. v. MENOCAL 
+Opinion of Thomas, J. 
+point is reverse the erroneous liability fnding. So the fnal­
+ity rule of § 1291 precludes interlocutory review of a Year­
+sley denial.5 
+For those reasons, we hold that the Court of Appeals 
+lacked jurisdiction over GEO's appeal. If eventually found 
+liable, GEO may of course appeal the District Court's rejec­
+tion of its asserted Yearsley defense. But GEO must wait 
+until then. A Yearsley denial is not appealable before the 
+trial court's proceedings have ended. 
+We therefore affrm the judgment of the Court of Appeals 
+and remand the case for further proceedings consistent with 
+this opinion. 
+It is so ordered. 
+Justice Thomas, concurring in part and concurring in the 
+judgment. 
+I concur in Parts I and III of the Court's opinion and in 
+its judgment. I agree with the Court that Yearsley v. W. A. 
+Ross Constr. Co., 309 U. S. 18 (1940), and similar decisions 
+establish a defense from liability and not an immunity from 
+suit. See ante, at 448–449. Orders rejecting Yearsley de­
+fenses are therefore unlike the orders denying immunities that 
+this Court has already held to be immediately appealable. 
+Because no other statute or rule authorized an interlocutory 
+appeal here, the Court correctly affrms the Tenth Circuit's 
+dismissal. I do not join Part II because “[w]e need not, and 
+in my view should not, further justify our holding by apply­
+ing” the collateral-order doctrine established by Cohen v. 
+Benefcial Industrial Loan Corp., 337 U. S. 541 (1949). Mo­
+hawk Industries, Inc. v. Carpenter, 558 U. S. 100, 115 (2009) 
+5 This holding still allows review of a given Yearsley denial by means of 
+§ 1292(b)'s separate appeal-certifcation process. Under that provision, a 
+district court may fnd that the special diffculty and importance of an 
+otherwise unappealable order counsels in favor of immediate review, and 
+an appellate court may accept that determination. Here, though, the Dis­
+trict Court saw no reason to act under § 1292(b). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+453 
+Alito, J., concurring in judgment 
+(Thomas, J., concurring in part and concurring in judgment). 
+I remain of the view that we should not expand the Cohen 
+collateral order doctrine beyond orders that our precedents 
+have already held to be immediately appealable. 
+The Cohen collateral-order doctrine, which allows federal 
+courts to exercise appellate jurisdiction over certain inter­
+locutory orders, conficts with Congress's authority over fed­
+eral appellate jurisdiction. U. S. Const., Art. I, § 8, cl. 9; 
+Art. III, § 1. By statute, parties generally cannot appeal 
+before fnal judgment. See 28 U. S. C. § 1291; ante, at 443– 
+444. Congress has established certain exceptions to that 
+fnal-judgment rule that allow parties to appeal some inter­
+locutory orders immediately. E. g., § 1292(a)(1). It has also 
+authorized this Court to create further exceptions through 
+rulemaking. § 1292(e). Cohen's collateral-order doctrine 
+allows judges to create additional exceptions by judicial opin­
+ion, which bypasses “ `Congress's designation of the rule-
+making process as the way to defne or refne when a district 
+court ruling is “fnal” and when an interlocutory order is 
+appealable.' ” Mohawk Industries, 558 U. S., at 114–115 
+(opinion of Thomas, J.) (quoting Swint v. Chambers County 
+Comm'n, 514 U. S. 35, 48 (1995)). For that reason, if an in­
+terlocutory order “is not on all fours with orders we pre­
+viously have held to be appealable under the collateral order 
+doctrine,” it should not be immediately appealable. Mo­
+hawk Industries, 558 U. S., at 115 (opinion of Thomas, J.). 
+Justice Alito, concurring in the judgment. 
+I agree with the Court that the defense conferred by Year­
+sley v. W. A. Ross Constr. Co., 309 U. S. 18 (1940), is not 
+an “immunity from suit.” I therefore agree that an order 
+denying a Yearsley defense is not a “collateral order” subject 
+to immediate appeal. But I would not rest these conclusions 
+solely on the fact that Yearsley's applicability “turn[s] on [the 
+defendant's] conduct's legality.” Ante, at 445. Under the 
+collateral-order doctrine, defendants may sometimes appeal 
+Page Proof Pending Publication
+
+454 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+the denial of a defense immediately when doing so is neces­
+sary to vindicate important constitutional or public-policy in­
+terests. And this rule holds true even if the defense at issue 
+turns on the legality of the defendant's conduct. Thus, I 
+cannot join the opinion of the Court, but I concur in the judg­
+ment because deferring appellate review of Yearsley rulings 
+until fnal judgment does not imperil important constitu­
+tional or public-policy interests. 
+I 
+Since 1789, Congress has generally limited the universe of 
+appealable orders to “fnal decrees and judgments.” Act of 
+Sept. 24, 1789, 1 Stat. 84. Today, this “fnal-judgment rule” 
+limits the jurisdiction of federal courts of appeals. See 28 
+U. S. C. § 1291. The Court has long given this limit a “prac­
+tical rather than a technical construction.” Cohen v. Bene­
+fcial Industrial Loan Corp., 337 U. S. 541, 546 (1949). Con­
+sistent with that approach, our decision in Cohen held that 
+certain interlocutory orders—now known as collateral or­
+ders—are suffciently “fnal” that a party may appeal them 
+before litigation reaches fnal judgment. Id., at 546–547. 
+Our collateral-order doctrine establishes three criteria 
+that an order must satisfy to qualify for immediate appeal. 
+The order must (1) “conclusively determine [a] disputed 
+question,” (2) resolve an issue “separate from the merits of 
+the action,” and (3) be “effectively unreviewable on appeal 
+from a fnal judgment.” Coopers & Lybrand v. Livesay, 437 
+U. S. 463, 468 (1978). Whether a given order satisfes these 
+criteria does not turn on the “facts of a particular case.” 
+Carroll v. United States, 354 U. S. 394, 405 (1957). Rather, 
+the criteria must be satisfed for the “entire category” of or­
+ders. Digital Equipment Corp. v. Desktop Direct, Inc., 511 
+U. S. 863, 868 (1994). 
+A 
+Initially, this Court applied the “effectively unreviewable” 
+requirement to capture orders that would become moot by 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+455 
+Alito, J., concurring in judgment 
+the time of fnal judgment. See Cohen, 337 U. S., at 546. 
+For those orders, a strict application of the fnal-judgment 
+rule “would practically defeat the right to any review at all.” 
+Cobbledick v. United States, 309 U. S. 323, 324–325 (1940). 
+We frst applied this reasoning in Cohen, which involved a 
+district-court order that excused the plaintiffs from a 
+litigation-bond requirement. 337 U. S., at 544–547. Appli­
+cable state law required the plaintiffs to post such a bond 
+to secure their obligation to pay the defendant's litigation 
+expenses and attorney's fees if their claims failed. Cohen 
+held that the order excusing the plaintiffs from posting that 
+bond was immediately appealable because it would “not be 
+merged in fnal judgment.” Id., at 546. Regardless of who 
+prevailed at fnal judgment, the question whether the plain­
+tiffs had to post a bond would be moot. If the defendant 
+prevailed, an appeal would not relieve it from the plaintiffs' 
+failure to post a bond. And if the plaintiffs prevailed, the 
+defendant would not be entitled to recover its legal costs. 
+Thus, if orders denying requests for litigation bonds were 
+not subject to immediate appeal, those orders would never 
+receive appellate review. 
+This conception of the collateral-order doctrine's “effec­
+tively unreviewable” requirement informed our decision in 
+Swift & Co. Packers v. Compania Colombiana Del Caribe, 
+S. A., 339 U. S. 684 (1950). There, we held that the Fifth 
+Circuit had appellate jurisdiction over a lower court's order 
+vacating the attachment of a foreign vessel. Id., at 685–689. 
+That vessel, which the libelants attached while it passed 
+through U. S.-controlled waters, served as security for their 
+claims against the foreign defendant. In this respect, the 
+vessel resembled the bond in Cohen. As was the case with 
+the bond order, an immediate appeal was the only means for 
+appellate review of the order vacating the attachment of the 
+vessel. If the libelants in Swift did not prevail at fnal judg­
+ment, the court's vacatur of the attachment order would be­
+come moot. And if the libelants did prevail, any appellate 
+Page Proof Pending Publication
+
+456 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+review of the attachment issue would be an “empty rite,” as 
+the vessel would have likely departed U. S. jurisdiction. 339 
+U. S., at 689. 
+The same reasoning explains our jurisdictional holding in 
+Stack v. Boyle, 342 U. S. 1 (1951), which extended Cohen to 
+an order denying a criminal defendant's motion to modify 
+his pretrial bail-bond amount. 342 U. S., at 3. Once a court 
+renders fnal judgment in a criminal case, the conditions gov­
+erning the defendant's pretrial release become moot. By 
+that juncture, the defendant has either been released from 
+custody or begun a sentence of incarceration. Thus, if there 
+were to be any appellate review of bail, it would need to 
+occur before fnal judgment. 
+In sum, our early collateral-order cases applied the “effec­
+tively unreviewable” requirement narrowly. It captured 
+those orders that would be unreviewable on appeal from a 
+fnal judgment on account of mootness. 
+B 
+Over the ensuing decades, the Court expanded its applica­
+tion of the “effectively unreviewable” requirement to include 
+orders that undoubtedly would not become moot by fnal 
+judgment. For example, in Abney v. United States, 431 
+U. S. 651 (1977), and Helstoski v. Meanor, 442 U. S. 500 
+(1979), the Court held that denials of defenses under the 
+Double Jeopardy Clause and Speech or Debate Clause satis­
+fed Cohen even though these protections could be “vin­
+dicated on an appeal following fnal judgment.” Abney, 
+431 U. S., at 660. Like most criminal-law defenses, double-
+jeopardy and speech-or-debate issues merge into the fnal 
+judgment, and a reviewing court can grant meaningful relief 
+on these grounds by reversing a defendant's conviction. 
+Abney and Helstoski nevertheless held that denials of relief 
+under these two Clauses were collateral orders. 
+Our holdings in these cases relied on the premise that 
+those two protections were not merely shields from criminal 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+457 
+Alito, J., concurring in judgment 
+liability. They were instead “guarantee[s] against being . . . 
+put to trial” at all. Abney, 431 U. S., at 661; accord, Hel­
+stoski, 442 U. S., at 508 (“[T]he Speech or Debate Clause was 
+designed to protect Congressmen . . . from the burden of 
+defending themselves” (internal quotation marks omitted)). 
+Thus, although a court could review these defenses on appeal 
+from a fnal judgment, a court could not fully vindicate their 
+protections at that time. By the time of fnal judgment, the 
+defendant would have already been exposed to trial, thereby 
+suffering the very harm that these defenses exist to prevent. 
+This line of reasoning suffced to render the orders in Abney 
+and Helstoski “effectively unreviewable” on appeal from a 
+fnal judgment. See Abney, 431 U. S., at 662. 
+This doctrinal development had important implications for 
+our collateral-order jurisprudence. Under Abney and Hel­
+stoski's logic, once a court designates a defense as an “immu­
+nity from suit,” that defense satisfes the third collateral-
+order criterion. Digital Equipment, 511 U. S., at 870. We 
+have likewise recognized that an order denying an immunity 
+from suit will also satisfy the other two collateral-order re­
+quirements. See ante, at 447, n. 3. The denial of an immu­
+nity satisfes the frst criterion because it “conclusively de­
+termine[s]” that a defendant may go to trial. Coopers & 
+Lybrand, 437 U. S., at 468. See Helstoski, 442 U. S., at 507 
+(“Once a motion to dismiss is denied, there is nothing the 
+Member can do under the [Speech or Debate] Clause . . . to 
+prevent the trial”). And a “claim of immunity is conceptu­
+ally distinct from the merits,” so an order denying an immu­
+nity claim satisfes the second requirement. Mitchell v. For­
+syth, 472 U. S. 511, 527 (1985). For these reasons, federal 
+courts have consistently held that denials of an immunity 
+are collateral orders subject to immediate appeal. See, e. g., 
+Nixon v. Fitzgerald, 457 U. S. 731, 742 (1982) (Presidential 
+civil immunity); Mitchell, 472 U. S., at 530 (qualifed immu­
+nity); Puerto Rico Aqueduct and Sewer Authority v. Met-
+calf & Eddy, Inc., 506 U. S. 139, 143 (1993) (state and territo­
+Page Proof Pending Publication
+
+458 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+rial sovereign immunity); Kilburn v. Socialist People's 
+Libyan Arab Jamahiriya, 376 F. 3d 1123, 1126 (CADC 2004) 
+(foreign sovereign immunity). 
+Given that the designation of a defense as an immunity is 
+dispositive under the collateral-order doctrine, our Court has 
+stringently guarded the designation. See Midland Asphalt 
+Corp. v. United States, 489 U. S. 794, 801 (1989). After all, 
+“virtually every right that could be enforced appropriately 
+by pretrial dismissal” could be loosely described as an immu­
+nity from suit. Digital Equipment, 511 U. S., at 873. But 
+treating every such right as an immunity would permit the 
+“narrow” collateral-order doctrine to “swallow” the fnal-
+judgment rule in “virtually every case.” Id., at 868, 873 (in­
+ternal quotation marks omitted). Our Court has therefore 
+recognized the need to distinguish “between a right not to 
+be tried and a right whose remedy requires the dismissal of 
+charges.” United States v. Hollywood Motor Car Co., 458 
+U. S. 263, 269 (1982) (per curiam). And we have explained 
+that determining whether a defense constitutes an immunity 
+requires an evaluation of “the value of the interests” that an 
+immediate appeal would advance. Digital Equipment, 511 
+U. S., at 878–879. Specifcally, we explained in Will v. Hal-
+lock, 546 U. S. 345 (2006), that a defense “should be treated 
+as an immunity demanding the protection of a collateral 
+order appeal” only if wrongly allowing a suit to proceed 
+would “imperil a substantial public interest.” Id., at 353; 
+see also Lauro Lines s.r.l. v. Chasser, 490 U. S. 495, 502 
+(1989) (Scalia, J., concurring) (“The reason” that a right fails 
+the third requirement of the collateral-order doctrine “is, 
+quite simply, that the law does not deem the right impor­
+tant enough”). 
+Our collateral-order decisions refect this approach. We 
+have applied the immunity label to defenses when allowing 
+an immediate appeal was necessary to preserve “some par­
+ticular value of a high order,” such as “honoring the separa­
+tion of powers, preserving the effciency of government and 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+459 
+Alito, J., concurring in judgment 
+the initiative of its offcials, respecting a State's dignitary 
+interests, and mitigating the government's advantage” over 
+individual defendants in high-stakes matters. Will, 546 
+U. S., at 352–353; see, e. g., Nixon, 457 U. S., at 742–743, 749, 
+758 (citing separation-of-powers concerns when allowing an 
+appeal of an order denying Presidential immunity); Mitchell, 
+472 U. S., at 526 (explaining that the avoidance of distraction, 
+overdeterrence, and timidity in Government service justifed 
+immediate appeals of orders denying qualifed immunity); 
+Puerto Rico Aqueduct and Sewer Authority, 506 U. S., at 
+146 (allowing an appeal of an order denying sovereign immu­
+nity to “ `prevent the indignity of subjecting a State to the 
+coercive process of judicial tribunals' ”). In contrast, we 
+have declined to designate defenses as immunities when 
+postponing appellate review to fnal judgment would not im­
+peril important interests. See, e. g., Will, 546 U. S., at 353 
+(holding that the interest in shortening troublesome litiga­
+tion is insuffcient to treat a defense as an immunity); Mo­
+hawk Industries, Inc. v. Carpenter, 558 U. S. 100, 108–113 
+(2009) (acknowledging that the attorney-client privilege 
+serves important public interests but declining to designate 
+it as an immunity because deferring appeals would not mean­
+ingfully harm those interests). 
+As these decisions illustrate, we have been cautious in re­
+cent years about expanding the collateral-order doctrine, but 
+we have not closed the book on Cohen. Just two Terms ago, 
+we designated another defense as an immunity and evaluated 
+it in an interlocutory posture. See Trump v. United States, 
+603 U. S. 593, 635 (2024) (citing Mitchell, 472 U. S., at 524– 
+530); 603 U. S., at 654–655 (Barrett, J., concurring in part). 
+The test for determining whether a defense constitutes an 
+immunity therefore remains keyed to the interests that an 
+immediate appeal would vindicate. If postponing review of 
+a wrongly denied defense would undermine important con­
+stitutional or policy interests, that defense constitutes an 
+immunity. 
+Page Proof Pending Publication
+
+460 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+II 
+Under this framework, the Yearsley doctrine is not an im­
+munity from suit. Permitting immediate appeals of orders 
+denying Yearsley defenses is not necessary to vindicate any 
+sufficiently important constitutional or public-policy 
+interests. 
+A 
+As the majority correctly explains, Yearsley shields de­
+fendants from damages actions for conduct that federal law 
+authorized. See Campbell-Ewald Co. v. Gomez, 577 U. S. 
+153, 166–167 (2016). Although this protection is important 
+for a range of Government operations, it does not meet the 
+threshold to be designated an immunity. 
+First, postponing appellate review of Yearsley's applic­
+ability until fnal judgment would not create signifcant 
+separation-of-powers problems. To be sure, the possibility 
+that courts might impose liability for conduct that Congress 
+authorized presents some conflict between those two 
+branches of Government. Likewise, incorrect contractor-
+liability adjudications can interfere with Executive Branch 
+operations. But these risks of error arise anytime a court 
+misapplies a federal statute or entertains an action involving 
+a Government contractor. Moreover, these risks pale in 
+comparison to the separation-of-powers concerns that moti­
+vated the application of the collateral-order doctrine in other 
+immunity contexts. See, e. g., Helstoski, 442 U. S., at 502 
+(concerning a Congressman who was exposed to criminal lia­
+bility based on his decision to introduce a bill in the House 
+of Representatives). 
+Yearsley does not implicate sovereign-dignity interests, 
+either. Although GEO Group describes Yearsley as confer­
+ring “derivative sovereign immunity” on contractors, Brief 
+for Petitioner 10, this label is a poor ft. Sovereign immu­
+nity protects governments from the indignity of being sub­
+jected to a court's jurisdiction. Puerto Rico Aqueduct and 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 438 (2026) 
+461 
+Alito, J., concurring in judgment 
+Sewer Authority, 506 U. S., at 146. 
+We have never de­
+scribed the Yearsley doctrine in those terms, nor have we 
+suggested that it limits courts' jurisdiction over contractors. 
+Cf. Yearsley, 309 U. S., at 19 (noting without disagreement 
+that the lower court exercised jurisdiction over the case); 
+Campbell-Ewald Co., 577 U. S., at 165–166 (concluding that 
+the lower court had jurisdiction over a case before determin­
+ing whether Yearsley applied). Rather, Yearsley merely 
+shields contractors from exposure for conduct that federal 
+law authorized. I therefore agree with the majority that 
+the Yearsley doctrine “derives” from the Government's law­
+making authority, not its sovereign immunity. See ante, at 
+449–451; cf. Campbell-Ewald Co., 577 U. S., at 166–167; 
+Sloan Shipyards Corp. v. United States Shipping Bd. Emer­
+gency Fleet Corporation, 258 U. S. 549, 566–567 (1922). 
+Last, unlike with qualifed immunity, allowing immediate 
+appeals of Yearsley denials is not necessary to prevent over-
+deterrence, timidity, and distraction in Government service. 
+That is not to say that these concerns are entirely absent 
+when plaintiffs bring damages actions against Government 
+contractors. As this Court recognized in Filarsky v. Delia, 
+566 U. S. 377 (2012), the public has an interest in preventing 
+overdeterrence, timidity, and distraction in Government 
+functions no matter the “nature of [the defendant's] particu­
+lar relationship with the government.” Id., at 389–392. 
+But our doctrine already accommodates these concerns by 
+allowing contractors to invoke qualifed immunity. Ibid.; 
+Campbell-Ewald Co., 577 U. S., at 167. Indeed, qualifed im­
+munity provides a greater protection to contractors than 
+Yearsley does. Whereas Yearsley shields only those con­
+tractors who act within the bounds of their legal authoriza­
+tion, qualifed immunity protects “all but the plainly incom­
+petent or those who knowingly violate the law.” Malley v. 
+Briggs, 475 U. S. 335, 341 (1986). And as the defense's name 
+indicates, contractors may immediately appeal denials of 
+qualifed immunity. Mitchell, 472 U. S., at 530. Because 
+Page Proof Pending Publication
+
+462 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+qualifed immunity already vindicates the public interest in 
+avoiding overdeterrence, timidity, and distraction among 
+contractors, there is no overriding interest in also allowing 
+immediate appeals of orders denying Yearsley's more modest 
+protections.* Cf. Mohawk Industries, Inc., 558 U. S., at 
+109–112 (declining to treat the attorney-client privilege as an 
+immunity because other “established mechanisms for appel­
+late review” were available). 
+In sum, allowing immediate appeals of orders denying 
+Yearsley defenses is not necessary to vindicate any impor­
+tant constitutional or public-policy interests. Accordingly, 
+the Yearsley doctrine is not an immunity from suit. And 
+because Yearsley issues can be reviewed on an appeal from 
+a fnal judgment, these orders do not otherwise satisfy the 
+third collateral-order requirement. 
+B 
+Rather than conducting the public-interest inquiry that 
+our immunity case law employs, the majority trains most of 
+its analysis on a single question: Whether the Yearsley doc­
+trine “turn[s] on [the defendant's] conduct's legality.” Ante, 
+*Although Government contractors may generally assert qualifed im­
+munity, this Court has held that “private prison guards” may not in Rev. 
+Stat. § 1979, 42 U. S. C. § 1983 cases. See Richardson v. McKnight, 521 
+U. S. 399, 412 (1997). Separately, this Court has not decided whether 
+corporate-contractor defendants like GEO Group may invoke qualifed im­
+munity. But see United Pet Supply, Inc. v. Chattanooga, 768 F. 3d 464, 
+484, n. 3 (CA6 2014) (noting that the Sixth Circuit has entertained corpo­
+rate defendants' assertions of qualifed immunity). Perhaps the public in­
+terest would be well-served by allowing appeals of orders denying Years­
+ley defenses to those defendants who cannot invoke qualifed immunity. 
+Even so, our doctrine requires us to decide whether Yearsley denials are 
+collateral orders as a category, not “as applied” to particular defendants. 
+If, however, most defendants who invoke Yearsley could not invoke quali­
+fed immunity, the collateral-order analysis might be different. For exam­
+ple, if corporate contractors could never invoke qualifed immunity, then 
+there would be a stronger argument that denials of Yearsley defenses 
+should be immediately appealable. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 438 (2026) 
+463 
+Alito, J., concurring in judgment 
+at 445. Because the Yearsley doctrine does, the majority 
+concludes that it fails to satisfy the third collateral-order re­
+quirement. That analysis is oversimplifed. 
+Of course, whether a defense turns on the legality of a 
+defendant's conduct can be relevant to the collateral-order 
+analysis. For example, the degree of overlap between a de­
+fense and a defendant's conduct can bear on whether an 
+order is “ `separate from the merits of the action.' ” Ante, 
+at 447, n. 3; but see Mitchell, 472 U. S., at 527. It is also true 
+that certain “immunities from suit” are jurisdictional bars 
+that shield a defendant from judicial process regardless of 
+whether it acted lawfully. See, e. g., 28 U. S. C. § 1604 (codi­
+fying foreign sovereign immunity as a jurisdictional bar); 
+Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 72–73 (1996) 
+(treating state sovereign immunity as a jurisdictional limit). 
+Nonetheless, the majority's rule cannot fully explain our 
+collateral-order case law. For instance, qualifed immunity 
+is an immunity from suit, yet its applicability can and often 
+does turn on whether a defendant violated the law. See 
+District of Columbia v. Wesby, 583 U. S. 48, 62–63 (2018). 
+Indeed, before this Court decided Pearson v. Callahan, 555 
+U. S. 223 (2009), a court evaluating a qualifed-immunity de­
+fense had to resolve the legality of the defendant's alleged 
+conduct. Id., at 232; see, e. g., Scott v. Harris, 550 U. S. 372, 
+377 (2007). We nevertheless treated (and continue to treat) 
+denials of qualifed immunity as collateral orders. 
+On the other side of the ledger, we have held that several 
+defenses are not immunities even though they do not turn 
+on the legality of the defendant's conduct. For instance, this 
+Court has held that neither the Federal Tort Claims Act's 
+judgment bar nor a criminal defendant's right against vindic­
+tive prosecution qualifes as an immunity from suit, even 
+though neither defense concerns a defendant's challenged 
+conduct. See Will, 546 U. S., at 353–355; Hollywood Motor 
+Car Co., 458 U. S., at 267–270; see also Digital Equipment 
+Corp., 511 U. S., at 884 (holding that a lower court's refusal 
+
+464 
+GEO GROUP, INC. v. MENOCAL 
+Alito, J., concurring in judgment 
+to enforce a settlement agreement against a plaintiff 's claims 
+was not a collateral order). 
+In short, although the majority's focus—whether a defense 
+turns on the legality of the defendant's conduct—can be rele­
+vant in the collateral-order analysis, it is not dispositive of 
+whether a defense constitutes an immunity. 
+*
+*
+* 
+Because postponing appellate review of Yearsley issues 
+until fnal judgment would not imperil important constitu­
+tional or public-policy interests, I concur in the judgment of 
+the Court. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. Other revisions may include adjustments to formatting, cap­
+tions, citation form, and any errant punctuation. The following additional 
+edits were made: 
+None 
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+Cite as: 608 U. S. ____ (2026) 
+Statement of SOTOMAYOR, J. 
+SUPREME COURT OF THE UNITED STATES 
+TONY TERRELL CLARK v. MISSISSIPPI 
+ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
+COURT OF MISSISSIPPI 
+No. 25–6846. Decided June 8, 2026 
+The petition for a writ of certiorari is denied. 
+ Statement of JUSTICE SOTOMAYOR respecting the denial 
+of certiorari. 
+Although I agree with the Court’s decision to deny certi­
+orari for the reason explained below, I write separately to 
+address the problematic standard the Mississippi Supreme 
+Court applied to the claim petitioner Tony Terrell Clark 
+raised under Batson v. Kentucky, 476 U. S. 79 (1986), in the
+context of his ineffective-assistance-of-counsel claim. 
+During Clark’s capital trial, the prosecution struck Black
+prospective jurors at a rate more than five times that of 
+white jurors. The prosecution also conducted dubious “spe­
+cial investigations into some of the most qualified Black 
+prospective jurors in an attempt to disqualify them,” but did 
+not investigate similarly situated white jurors. Clark v. 
+Mississippi, 600 U. S. ___, ___–___ (2023) (SOTOMAYOR, J. 
+dissenting from denial of certiorari) (slip op., at 5–6).  Many
+of the prosecution’s proffered reasons for striking Black ju­
+rors, moreover, applied equally to white jurors that it did 
+not strike.  For instance, the record “reveal[ed] a double 
+standard where the State struck Black jurors who took an­
+ything but the most hardline pro-death penalty position,
+but not white jurors who expressed serious doubts about the
+death penalty.” Id., at ___ (slip op., at 8). 
+Despite all this, the Mississippi Supreme Court con­
+cluded on direct appeal that the State had not violated Bat-
+son. In determining that none of the prosecution’s strikes 
+were “‘motivated in substantial part by discriminatory 
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+CLARK v. MISSISSIPPI 
+Statement of SOTOMAYOR, J. 
+intent,’” Flowers v. Mississippi, 588 U. S. 284, 303 (2019),
+the court relied, in part, on the fact that Clark’s trial coun­
+sel did not present a “‘comparative analysis of minority and
+non-minority jurors to show disparate treatment’” during
+the Batson proceedings. Clark v. State, 343 So. 3d 943, 961– 
+962 (2022).  The court declined to conduct that analysis in
+the first instance. Id., at 962. 
+Clark then filed a habeas petition in state court and ar­
+gued that, in the context of the Batson proceedings, his trial
+counsel was constitutionally ineffective under Strickland v. 
+Washington, 466 U. S. 668 (1984).  To succeed under Strick­
+land, a defendant must make two independent showings.
+First, that his counsel’s performance was deficient, mean­
+ing that the counsel’s error was “so serious that [he] was 
+not functioning as the ‘counsel’ guaranteed the defendant 
+by the Sixth Amendment.” Id., at 687. Second, that the 
+deficient performance “prejudiced the defense,” ibid., mean­
+ing that there is “a reasonable probability that, but for 
+counsel’s unprofessional errors, the result of the proceeding
+would have been different,” id., at 694. 
+The Mississippi Supreme Court held that Clark’s ineffec­
+tive-assistance claim failed on both grounds.  As the court 
+saw it, Clark did not prove that his “counsel’s performance 
+before the trial court was deficient” or that his “counsel’s 
+performance deprived him of a fair trial with a reliable re­
+sult.” 418 So. 3d 1226, 1232 (2025).  In conducting the prej­
+udice analysis, the court relied on Powers v. State, 371 
+So. 3d 629 (Miss. 2023), which assessed whether “the out­
+come of the trial would have been different” if, but for the 
+counsel’s deficient performance, a properly presented Bat-
+son challenge had succeeded and the Black jurors had not 
+been struck. See 371 So. 3d, at 682, 684, 690–691.  In other 
+words, in Mississippi, showing that prejudice resulted from 
+counsel’s ineffective presentation of a Batson claim requires
+proving not only that the Batson claim would have suc­
+ceeded, but that this success would have produced a 
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+Cite as: 608 U. S. ____ (2026) 
+Statement of SOTOMAYOR, J. 
+different substantive outcome at a trial: for example, that a
+defendant would have been acquitted rather than con­
+victed. 
+Other courts have taken a different approach. They un­
+derstand the “prejudice” analysis in this context to require
+asking only whether the “Batson challenge would have been 
+successful” but for the counsel’s deficient performance,
+without further inquiry into whether a hypothetical jury 
+that included jurors who were struck based on their race
+would have voted differently. See, e.g., Yazzie v. State, 2021 
+WY 72, ¶¶21–24, 487 P. 3d 555, 563; see also Carew v. Mor­
+ton, 150 F. 4th 150, 171, n. 17 (CA2 2025) (recognizing this
+conflict and collecting cases). In other words, the relevant 
+“proceeding” for Strickland purposes, 466 U. S., at 694, is 
+the Batson proceeding, not the trial that follows.*
+The Mississippi Supreme Court’s approach, to the extent 
+it requires a criminal defendant to show that a competently 
+presented Batson challenge would have produced a differ­
+ent trial outcome, is almost certainly wrong.
+To start, it misunderstands the nature of a Batson error. 
+Generally, constitutional errors do not “‘automatically re­
+quire reversal of a conviction.’”  Weaver v. Massachusetts, 
+582 U. S. 286, 294 (2017).  Instead, a conviction can stand 
+despite most constitutional errors at trial if the government
+proves beyond a reasonable doubt that a given error was 
+harmless and did not “‘contribute to the verdict obtained.’”  
+Ibid. “Structural” errors, however, are different.  These er­
+rors “‘defy analysis by “harmless-error” standards’ because
+they ‘affec[t] the framework within which the trial 
+—————— 
+*Other courts, in unpublished opinions, have agreed with the Missis­
+sippi Supreme Court, requiring defendants raising Strickland claims re­
+garding Batson errors to prove that a competently presented Batson chal­
+lenge would have succeeded and that this success would have changed 
+the result of trial.  See, e.g., Hutchinson v. Superintendent Greene SCI, 
+860 Fed. Appx. 246, 249 (CA3 2021); Parks v. Chapman, 815 Fed. Appx. 
+937, 943 (CA6 2020). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+4 
+CLARK v. MISSISSIPPI 
+Statement of SOTOMAYOR, J. 
+proceeds,’” which means that their “‘consequences . . . are 
+necessarily unquantifiable and indeterminate.’”  United 
+States v. Gonzalez-Lopez, 548 U. S. 140, 148, 150 (2006). 
+Thus, when made, structural errors require “‘automatic re­
+versal.’” Weaver, 582 U. S., at 299. 
+When raised as a standalone claim (that is, not as part of 
+an ineffective-assistance claim), Batson has always been 
+treated as a structural error not subject to harmless-error
+analysis. See, e.g., Weaver, 582 U. S., at 301 (noting that 
+successful Batson claims result in “automatic relief ”); Ri­
+vera v. Illinois, 556 U. S. 148, 161 (2009) (characterizing 
+Batson as an “automatic reversal preceden[t]”); Snyder v. 
+Louisiana, 552 U. S. 472, 474 (2008) (reversing conviction 
+based on Batson error without assessing harmlessness); cf. 
+Vasquez v. Hillery, 474 U. S. 254, 263–264 (1986) (holding 
+that racial discrimination in grand jury selection is a struc­
+tural error).  There is no sound basis for treating Batson 
+differently in the context of an ineffective-assistance claim.
+ This Court in Weaver v. Massachusetts addressed the in­
+terplay between Strickland prejudice and other structural 
+errors. There, the Court held that a defendant must show 
+Strickland prejudice “in the ordinary sense” (meaning a dif­
+ferent trial outcome) when one kind of structural error, the
+violation of the right to a public trial, is raised “via a claim
+alleging ineffective assistance of counsel.”  582 U. S., at 293, 
+303. The Court clarified, however, that this answer may 
+not hold true for other structural errors, and that “the na­
+ture of the error” and “the reasons an error is deemed struc­
+tural may influence the proper standard used to evaluate
+an ineffective-assistance claim premised on the failure to
+object to that error.” Id., at 294, 302; see id., at 300 (making 
+clear that Strickland’s “prejudice inquiry is not meant to be 
+applied in a ‘mechanical’ fashion”). 
+A Batson error is one such error that likely requires a dif­
+ferent standard for prejudice. Weaver, for example, ob­
+served that “not every public-trial violation will in fact lead 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+5 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Statement of SOTOMAYOR, J. 
+to a fundamentally unfair trial.”  582 U. S., at 300. The 
+same does not hold true for Batson violations, given that
+“[i]n the eyes of the Constitution, one racially discrimina­
+tory peremptory strike is one too many.”  Flowers, 588 U. S., 
+at 298. It is the racial discrimination in jury selection itself,
+not merely its effect on the outcome of trial, that causes the
+harms (to defendants, jurors, and the process itself ) with
+which Batson is principally concerned.  See, e.g., Powers v. 
+Ohio, 499 U. S. 400, 412–413 (1991).
+Yet there is an even clearer reason why the default prej­
+udice standard should not apply here.  Asking a defendant
+to demonstrate a reasonable probability that the jury would 
+not have convicted him had his counsel successfully raised 
+the Batson error imposes the burden to persuade courts “of
+the very conclusion that Batson prohibits: that the race of
+jurors affects their thinking as jurors.” Eagle v. Linahan, 
+279 F. 3d 926, 943–944, n. 22 (CA11 2001).   Batson and its 
+progeny are premised on the idea that a person’s race (and 
+gender) is simply “‘unrelated to his fitness as a juror.’”  Bat-
+son, 476 U. S., at 87; cf. J. E. B. v. Alabama ex rel. T. B., 511 
+U. S. 127, 149 (1994) (O’Connor, J., concurring) (“[T]he im­
+port of our holding is that any correlation between a juror’s
+gender and attitudes is irrelevant as a matter of constitu­
+tional law”). Batson, for example, rejected the idea “that a 
+prosecutor could strike a black juror based on an assump­
+tion or belief that the black juror would favor a black de­
+fendant.” Flowers, 588 U. S., at 299.  It follows that a de­
+fendant cannot make, and courts should not accept, that 
+same argument to prove prejudice. Requiring a defendant 
+to show that a missing, meritorious Batson claim would 
+have affected the trial outcome is thus fundamentally in­
+consistent with Batson’s foundational principles.
+The Court should one day resolve the conflict outlined 
+above and hold that Strickland does not require the kind of 
+prejudice analysis that the Mississippi Supreme Court has
+adopted 
+for 
+Batson-related 
+ineffectiveness 
+claims. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+6 
+CLARK v. MISSISSIPPI 
+Statement of SOTOMAYOR, J. 
+Unfortunately, this case, at least in its current procedural
+posture, does not present a viable path for doing so.  As 
+noted, Strickland requires defendants to make two inde­
+pendent showings to succeed (deficiency and prejudice), and
+the Mississippi Supreme Court concluded that Clark failed 
+to satisfy either one. Before this Court, Clark does not ar­
+gue that his counsel was so ineffective at trial that he “was
+not functioning as the ‘counsel’ guaranteed the defendant 
+by the Sixth Amendment.” Strickland, 466 U. S., at 687. 
+Given the independent basis on which Clark’s Strickland 
+claim failed below, I concur in the denial of Clark’s petition
+for a writ of certiorari. 
diff --git a/corpus/law/text/2fdf768e813f3f97.txt b/corpus/law/text/2fdf768e813f3f97.txt
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@@ -0,0 +1,24 @@
+The Role of the EU Charter of Fundamental Rights in Climate Litigation – CORRIGENDUM
+
+CORRIGENDUM
+The Role of the EU Charter of Fundamental Rights in
+Climate Litigation – CORRIGENDUM
+Josephine ven Zeben
+https://doi.org/10.1017/glj.2021.78, Published by Cambridge University Press, 19 January 2022
+Keywords: Climate litigation; Human Rights; European Convention on Human Rights; EU Charter of Fundamental Rights;
+Judicial Dialogue
+In Table 1 (p. 1507), the case “Friends of the Earth Germany, Association of Solar Supporters, and
+Others v. Germany November 22, 2018” is listed as “pending”.
+On March 24, 2021, the case was dismissed as inadmissible by the German Federal Constitutional
+Court (case number 1 BvR 2656/18).
+The author would like to thank Matti Gurreck for noting this error.
+Reference
+Van Zeben, J. (2021). The Role of the EU Charter of Fundamental Rights in Climate Litigation. German Law Journal, 22(8),
+1499–1510. https://doi.org/10.1017/glj.2021.78
+© The Author(s) 2022. Published by Cambridge University Press on behalf of the German Law Journal. This is an Open Access article,
+distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits
+unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
+Cite this article: ven Zeben J (2022). The Role of the EU Charter of Fundamental Rights in Climate Litigation –
+CORRIGENDUM. German Law Journal 23, 687. https://doi.org/10.1017/glj.2022.10
+German Law Journal (2022), 23, pp. 687
+doi:10.1017/glj.2022.10
diff --git a/corpus/law/text/35d8ed43c35ddd34.txt b/corpus/law/text/35d8ed43c35ddd34.txt
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@@ -0,0 +1,20 @@
+‘A few practical things’: The Redress of Law and the irritation of (critical) constitutional theory – ERRATUM
+
+ERRATUM
+‘A few practical things’: The Redress of Law and the
+irritation of (critical) constitutional theory – ERRATUM
+Angelo Golia Jr
+https://doi.org/10.1017/elo.2023.19, Published by Cambridge University Press, 29 June 2023.
+Max-Planck-Institute for Comparative Public Law and International Law was not listed as the
+author’s primary institution in the original article. The research for this paper was carried out
+while the author was still affiliated to the MPIL Heidelberg. The publisher apologises for the error.
+Reference
+Golia, A. (2023). ‘A few practical things’: The Redress of Law and the irritation of (critical) constitutional theory. European
+Law Open, 2(1), 184–200. doi: 10.1017/elo.2023.19
+© The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative
+Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction,
+provided the original article is properly cited.
+Cite this article: Golia A, Jr (2023). ‘A few practical things’: The Redress of Law and the irritation of (critical) constitutional
+theory – ERRATUM. European Law Open 2, 881. https://doi.org/10.1017/elo.2023.37
+European Law Open (2023), 2, 881
+doi:10.1017/elo.2023.37
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@@ -0,0 +1,618 @@
+Page Proof Pending Publication
+A 
+PRELIMINARY PRINT 
+Volume 607 U. S. Part 2 
+Pages 537–551 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+March 4, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2025 
+537 
+Syllabus 
+URIAS-ORELLANA et al. v. BONDI, ATTORNEY 
+GENERAL 
+certiorari to the united states court of appeals for 
+the rst circuit 
+No. 24–777. Argued December 1, 2025—Decided March 4, 2026 
+This case presents the question whether the courts of appeals must apply 
+substantial-evidence review to the Board of Immigration Appeals' de­
+termination whether a given set of undisputed facts constitutes “perse­
+cution” under 8 U. S. C. § 1101(a)(42). 
+Petitioners Douglas Humberto Urias-Orellana, his wife Sayra Iliana 
+Gamez-Mejia, and their minor child G. E. U. G. are natives of El Salva­
+dor who entered the United States without authorization in 2021. 
+After being placed in removal proceedings, petitioners applied for asy­
+lum. Under the Immigration and Nationality Act (INA), the U. S. Gov­
+ernment “may grant asylum” to a noncitizen if it “determines” that he 
+“is a refugee.” §1158(b)(1)(A). An asylum seeker qualifes as a “refu­
+gee” if he “is unable or unwilling to return” to his country of nationality 
+“because of persecution or a well-founded fear of persecution on account 
+of race, religion, nationality, membership in a particular social group, or 
+political opinion.” § 1101(a)(42)(A). 
+In support of petitioners' applications for asylum, Urias-Orellana tes­
+tifed that he was being targeted by a hitman in El Salvador. The Im­
+migration Judge (IJ) found Urias-Orellana's testimony credible but con­
+cluded that it did not establish past persecution or a well-founded fear 
+of future persecution under the INA. The IJ accordingly denied peti­
+tioners' asylum applications and ordered their removal. The Board of 
+Immigration Appeals (BIA) affrmed. On petition for review, the U. S. 
+Court of Appeals for the First Circuit also affrmed, holding that, under 
+the substantial-evidence standard of review, the record did not compel 
+a contrary fnding. 
+Held: The INA requires application of the substantial-evidence standard 
+to the agency's determination whether a given set of undisputed facts 
+rises to the level of persecution under § 1101(a)(42)(A). Pp. 543–551. 
+(a) Section 1252(b)(4) sets forth the scope and standard of review for
+courts of appeals evaluating IJ and BIA removal orders; subparagraph 
+(B) provides that “administrative fndings of fact are conclusive unless
+any reasonable adjudicator would be compelled to conclude to the con­
+trary.” The Court has previously interpreted this provision to pre­
+scribe a deferential, “substantial-evidence standard,” Nasrallah v. Barr,
+
+Page Proof Pending Publication
+538 
+URIAS-ORELLANA v. BONDI 
+Syllabus 
+590 U. S. 573, 584, meaning “ `such relevant evidence as a reasonable 
+mind might accept as adequate to support a conclusion,' ” Biestek v. Ber­
+ryhill, 587 U. S. 97, 103. The courts of appeals have split over the ex­
+tent to which this standard applies to the agency's determination that 
+an asylum applicant has established persecution. Pp. 543–545. 
+(b) Though the courts of appeals apply varying standards, the Court 
+has already concluded that the persecution determination—including 
+both the underlying factual fndings and the application of the INA to 
+those fndings—receives substantial-evidence review. In INS v. Elias-
+Zacarias, 502 U. S. 478, the Court held that to obtain judicial reversal 
+of the agency's persecution determination, an asylum applicant must 
+show that the evidence presented was “so compelling that no reasonable 
+factfnder could fail to fnd the requisite fear of persecution.” Id., at 
+484. Congress amended the INA shortly after the Court's decision, but 
+those amendments—and the addition of § 1252(b)(4)(B) in particular— 
+codifed the Elias-Zacarias standard. The statute as it reads today 
+therefore requires substantial-evidence review. Pp. 545–549. 
+(c) The Court rejects petitioners' arguments that de novo review 
+should apply because § 1252(b)(4)(B) requires deference only for “fnd­
+ings of fact” and no subparagraph explicitly addresses the mixed ques­
+tion of law and fact that is the determination of persecution. However, 
+Elias-Zacarias and the subsequent statutory history suggest that Con­
+gress meant for the entirety of this “mixed” determination to receive 
+deference under § 1252(b)(4)(B). The Court's decisions in Wilkinson v. 
+Garland, 601 U. S. 209, and Guerrero-Lasprilla v. Barr, 589 U. S. 221, 
+are not to the contrary. Those cases addressed whether a mixed ques­
+tion qualifes as a “question of law” exempt from § 1252(a)'s bar on judi­
+cial review, 601 U. S., at 212; 589 U. S., at 225; but whether a given 
+issue is treated as a question of law exempt from the INA's jurisdiction-
+stripping provisions says nothing about the type of review the court 
+must afford to that issue under other provisions of the statute. 
+Pp. 549–550. 
+121 F. 4th 327, affrmed. 
+Jackson, J., delivered the opinion for a unanimous Court. 
+Nicholas Rosellini argued the cause for petitioners. 
+With him on the briefs were S. Y. Jessica Hui, Gregory G. 
+Garre, and Christine C. Smith. 
+Joshua Y. Dos Santos argued the cause for respondent. 
+With him on the brief were Solicitor General Sauer, Assist­
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+539 
+Opinion of the Court 
+ant Attorney General Shumate, Deputy Solicitor General 
+Gannon, John W. Blakeley, Melissa Neiman-Kelting, and 
+Bryan S. Beier.* 
+Justice Jackson delivered the opinion of the Court. 
+Petitioners Douglas Humberto Urias-Orellana, his wife 
+Sayra Iliana Gamez-Mejia, and their minor child G. E. U. G. 
+are Salvadoran natives who sought asylum after entering the 
+United States without authorization. An Immigration 
+Judge (IJ) denied their applications and ordered their re­
+moval, determining that they had neither demonstrated past 
+“persecution” nor established a “well-founded fear” of future 
+“persecution” as required under the Immigration and Na­
+tionality Act (INA), 66 Stat. 163, 8 U. S. C. § 1101(a)(42)(A). 
+After unsuccessfully challenging their removal order with 
+the Board of Immigration Appeals (BIA), petitioners sought 
+review in federal court. The Court of Appeals affrmed the 
+BIA's ruling, holding that “substantial evidence” supported 
+the agency's persecution determination. Urias-Orellana v. 
+Garland, 121 F. 4th 327, 335–338 (CA1 2024). 
+We granted certiorari to determine whether the Court of 
+Appeals applied the appropriate standard of review under 
+the INA. We conclude that the statute requires application 
+of the substantial-evidence standard to the agency's conclu­
+sion that a given set of undisputed facts does not constitute 
+persecution. Accordingly, we affrm. 
+*Briefs of amici curiae urging reversal were fled for the Center for 
+Individual Rights by Jonathan C. Bond, Trenton J. Van Oss, Lavi M. Ben 
+Dor, and Caleb Kruckenberg; for Former Executive Offce for Immigration 
+Review Judges by Richard W. Mark and Amer S. Ahmed; for Immigration 
+Law Professors by Minh Nguyen-Dang; and for Legal Services Providers 
+et al. by Ethan Nutter, Melissa Crow, Robert Pauw, and Matthew X. Et­
+chemendy. Briefs of amici curiae urging vacatur were fled for Immigra­
+tion Law Scholars et al. by Peter E. Davis; and for Nancy Morawetz by 
+Eugene A. Sokoloff. 
+
+Page Proof Pending Publication
+540 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+I 
+A 
+Petitioners entered the United States without authoriza­
+tion in 2021. Soon after they arrived, the Government 
+served petitioners with notices to appear in federal immigra­
+tion court for a removal hearing. When they appeared as 
+scheduled in an immigration court in Boston, petitioners con­
+ceded their removability but claimed asylum (along with 
+other forms of relief from removal that are no longer at 
+issue). 
+Petitioner Urias-Orellana was the sole witness at the re­
+moval hearing. He testifed that a “sicario” (i. e., hitman) 
+from his hometown had been targeting him since 2016. 
+That year, the sicario shot two of Urias-Orellana's half-
+brothers and vowed to kill every member of his family. Id., 
+at 332. To escape the sicario's threats, Urias-Orellana, 
+Gamez-Mejia, and G. E. U. G. relocated within El Salvador 
+several times over the next few years. After each move, 
+Urias-Orellana was threatened by men who demanded 
+money and warned that they would leave him like his broth­
+ers if he did not pay up. One of the men even physically 
+assaulted Urias-Orellana when he returned to his hometown 
+for a brief visit. Id., at 333. 
+The last straw came soon after Urias-Orellana's fourth and 
+fnal move in 2021, when he learned that men had been ask­
+ing around town about the arrival of any newcomers. It 
+was at this point that Urias-Orellana, Gamez-Mejia, and 
+G. E. U. G. left El Salvador for the United States. 
+Under the INA, the U. S. Government “may grant asylum” 
+to a noncitizen if it “determines” that he “is a refugee.” 8 
+U. S. C. § 1158(b)(1)(A). An asylum seeker qualifes as a 
+“refugee,” and is thus eligible for asylum, if he “is unable or 
+unwilling to return” to his country of nationality “because of 
+persecution or a well-founded fear of persecution on account 
+of race, religion, nationality, membership in a particular so­
+cial group, or political opinion.” § 1101(a)(42)(A). An asy­
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+541 
+Opinion of the Court 
+lum seeker can submit an affrmative application to the De­
+partment of Homeland Security, see § 1158(a), or raise asylum 
+eligibility as a defense to removal proceedings before an IJ, 
+see § 1229a(c)(4). Urias-Orellana and his family chose the 
+latter path: When the Government initiated removal pro­
+ceedings against them, they defended by asserting asylum 
+eligibility. 
+The IJ credited Urias-Orellana's account of the facts but 
+concluded that those facts were insuffcient to establish 
+either past persecution or a well-founded fear of future per­
+secution. The IJ explained that, under First Circuit prece­
+dent, death threats may establish past persecution only when 
+they are “ `so menacing as to cause signifcant actual suffer­
+ing or harm.' ” App. to Pet. for Cert. 31a (quoting Bonilla 
+v. Mukasey, 539 F. 3d 72, 77 (CA1 2008)). The IJ concluded 
+that Urias-Orellana's past-persecution claim failed under 
+that standard, as he had not submitted any medical, psychi­
+atric, or psychological evaluations indicating that he had ex­
+perienced such suffering or harm. App. to Pet. for Cert. 
+31a–32a. The IJ further found the evidence regarding 
+Urias-Orellana's alleged fear of future persecution to be lack­
+ing. He observed that Urias-Orellana had successfully es­
+caped danger after many of his relocations and that any risk 
+resurfaced only when Urias-Orellana returned to his home­
+town or nearby areas. Id., at 32a–35a. 
+Given the dearth of evidence establishing past or future 
+persecution, the IJ determined that Urias-Orellana did not 
+qualify as a refugee eligible for asylum under § 1101(a)(42). 
+See id., at 44a. The IJ determined that Gamez-Mejia and 
+G. E. U. G. were likewise ineligible for asylum, as their claims 
+were “derivativ[e]” of Urias-Orellana's. Id., at 28a. So, the 
+IJ ordered all three petitioners' removal. Id., at 44a. 
+B 
+Petitioners appealed the IJ's ruling to the BIA. See 8 
+CFR § 1003.1(b) (2025) (providing authority for such an ap­
+peal). But the BIA affrmed the IJ's conclusion that Urias­
+
+Page Proof Pending Publication
+542 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+Orellana's testimony “did not establish that he suffered past 
+harm in the aggregate rising to the level of persecution.” 
+App. to Pet. for Cert. 21a. It also agreed that because 
+Urias-Orellana “only had problems when he returned to his 
+hometown,” his testimony did not establish a well-founded 
+fear of future persecution. Id., at 22a. 
+Petitioners then sought further review in the U. S. Court 
+of Appeals for the First Circuit pursuant to 8 U. S. C. 
+§ 1252(b)(2). See 121 F. 4th, at 331. Petitioners did not dis­
+pute that death threats may establish past persecution only 
+when they are “so menacing as to cause signifcant actual 
+suffering or harm.” Opening Brief for Petitioners in No. 
+24–1042 (CA1), pp. 9–10 (internal quotation marks omitted). 
+Instead, they argued that the undisputed facts of this case 
+met that standard. The Court of Appeals emphasized that 
+its review was “cabin[ed]” to “whether the Agency conclu­
+sion [that petitioners] had not demonstrated past persecution 
+or a well-founded fear of future persecution was supported 
+by substantial evidence.” 121 F. 4th, at 335. Under that 
+standard, reversal was warranted only “if, in reviewing the 
+record as a whole, any reasonable adjudicator would be com­
+pelled to conclude to the contrary.” Ibid. (internal quota­
+tion marks omitted). 
+The Court of Appeals ultimately affrmed, concluding that 
+Urias-Orellana's testimony did not compel a fnding of either 
+past persecution or a well-founded fear of future persecution. 
+See id., at 336–338. In particular, it determined that “[t]he 
+Agency reasonably concluded that the threats experienced 
+by Urias-Orellana” were not “so menacing as to cause sig­
+nifcant actual suffering or harm.” Id., at 336 (internal quo­
+tation marks omitted). It similarly determined that, be­
+cause “Urias-Orellana was able to live in towns across El 
+Salvador for years without harassment and only encountered 
+diffculties once he returned to his hometown,” a reasonable 
+factfnder would not be compelled to fnd a well-founded fear 
+of future persecution. Id., at 338. 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+543 
+Opinion of the Court 
+We granted certiorari, 606 U. S. 930 (2025), to evaluate 
+whether the Court of Appeals applied the appropriate stand­
+ard of review when evaluating Urias-Orellana's asylum 
+claim.1 
+II 
+Section 1252(b)(4) does not use the phrase “substantial evi­
+dence.” But it does specifcally address the “[s]cope and 
+standard for review” that the courts of appeals must apply 
+when evaluating IJ and BIA removal orders. 
+As relevant here, each of § 1252(b)(4)'s four subparagraphs 
+truncates the court's review in a particular manner. Sub­
+paragraph (A) states that “the court of appeals shall decide 
+the petition only on the administrative record on which the 
+order of removal is based.” Subparagraph (C) says that “a 
+decision [by the agency] that [a noncitizen] is not eligible for 
+admission to the United States is conclusive unless mani­
+festly contrary to law.” And, per subparagraph (D), “the 
+Attorney General's discretionary judgment whether to grant 
+relief under section 1158(a) of this title shall be conclusive 
+unless manifestly contrary to the law and an abuse of 
+discretion.” 
+This case involves subparagraph (B), which provides that 
+“the administrative fndings of fact are conclusive unless any 
+reasonable adjudicator would be compelled to conclude to 
+the contrary.” § 1252(b)(4)(B). This Court has previously 
+interpreted subparagraph (B) to prescribe a deferential, 
+“substantial-evidence standard” for review of agency factual 
+1 Because petitioners have not challenged the standard of persecution 
+that the agency applied—i. e., that death threats are suffcient to establish 
+past persecution only when they are so menacing as to cause signifcant 
+actual suffering or harm, see App. to Pet. for Cert. 31a—we consider only 
+the appropriate standard of review for the agency's application of that 
+standard to the facts. We note the Solicitor General agrees with petition­
+ers that “purely legal questions about the appropriate standard” of perse­
+cution are subject to de novo review. Brief for Respondent 40; see Tr. of 
+Oral Arg. 48. 
+
+Page Proof Pending Publication
+544 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+fndings. Nasrallah v. Barr, 590 U. S. 573, 584 (2020). Sub­
+stantial evidence, we have long emphasized, is “ `more than 
+a mere scintilla,' ” but “means—and means only—`such rele­
+vant evidence as a reasonable mind might accept as adequate 
+to support a conclusion.' ” Biestek v. Berryhill, 587 U. S. 97, 
+103 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 
+U. S. 197, 229 (1938)). Or, to come full circle, “ `fndings of 
+fact are conclusive unless any reasonable adjudicator would 
+be compelled to conclude to the contrary.' ” Nasrallah, 590 
+U. S., at 584 (quoting § 1252(b)(4)(B)). 
+Whether a given agency determination fts within the pur­
+view of subparagraph (B)—and is thus reviewed for substan­
+tial evidence—is not always clear. Indeed, the courts of ap­
+peals have split over the standard of review that should 
+apply to the agency's determination that an asylum applicant 
+has not established past “persecution” or a “well-founded 
+fear of [future] persecution” within the meaning of 
+§ 1101(a)(42)(A). 
+Some courts review the entire inquiry (both the underly­
+ing factual fndings about what happened to the applicant 
+in her home country and the agency's application of the stat­
+ute to those fndings) under the substantial-evidence stand­
+ard.2 
+Other courts break down the inquiry into two parts, 
+reviewing the agency's factual fndings for substantial evi­
+dence and its legal conclusions de novo.3 
+Yet even those 
+courts are not always careful when differentiating between 
+factual fndings and the application of the law to those fnd­
+2 See Gómez-Medina v. Barr, 975 F. 3d 27, 31, 33 (CA1 2020); Ai Hua 
+Chen v. Holder, 742 F. 3d 171, 177–178 (CA4 2014); Yu v. Ashcroft, 364 
+F. 3d 700, 702–703 (CA6 2004); Ahmed v. Gonzales, 467 F. 3d 669, 673 (CA7 
+2006); Vicente-Elias v. Mukasey, 532 F. 3d 1086, 1091 (CA10 2008). 
+3 See Diallo v. INS, 232 F. 3d 279, 287 (CA2 2000); Herrera-Reyes v. 
+Attorney Gen., 952 F. 3d 101, 106 (CA3 2020); Lopez-Gomez v. Ashcroft, 
+263 F. 3d 442, 444 (CA5 2001) (per curiam); Njong v. Whitaker, 911 F. 3d 
+919, 922 (CA8 2018); Kaur v. Wilkinson, 986 F. 3d 1216, 1221 (CA9 2021); 
+Mejia v. Attorney Gen., 498 F. 3d 1253, 1256 (CA11 2007). 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+545 
+Opinion of the Court 
+ings, sometimes applying substantial-evidence review to the 
+entire inquiry.4 
+Today we resolve the proper-standard question as it re­
+lates to the courts of appeals' review of the agency's persecu­
+tion determination. As explained in Part III, infra, we hold 
+that § 1252(b)(4)(B) requires courts to review the entirety of 
+the agency's conclusions—both the underlying factual fnd­
+ings and the application of the INA to those fndings—for 
+substantial evidence. Thus, in the language of the statute, 
+the agency's determination whether a given set of undis­
+puted facts rises to the level of persecution under 
+§ 1101(a)(42)(A) is generally “conclusive unless any reason­
+able adjudicator would be compelled to conclude to the con­
+trary.” § 1252(b)(4)(B). 
+III 
+Though the courts of appeals apply varying standards to 
+the agency's persecution determination, we have already 
+concluded that these determinations receive substantial-
+evidence review. Specifcally, in INS v. Elias-Zacarias, 502 
+U. S. 478 (1992), we held that “to obtain judicial reversal” 
+of the agency's persecution determination, an asylum ap­
+plicant “must show that the evidence he presented was 
+so compelling that no reasonable factfnder could fail to 
+fnd the requisite fear of persecution.” Id., at 483–484. To 
+be sure, Congress amended the INA shortly after our de­
+cision. 
+But those amendments—and the addition of 
+§ 1252(b)(4) in particular—codifed the Elias-Zacarias stand­
+ard. As such, the statute as it reads today requires 
+substantial-evidence review for the entirety of the persecu­
+tion determination. 
+4 See Scarlett v. Barr, 957 F. 3d 316, 328, 336 (CA2 2020); Thayalan v. 
+Attorney Gen., 997 F. 3d 132, 137–138, n. 1 (CA3 2021); Gjetani v. Barr, 
+968 F. 3d 393, 396–397, and n. 2 (CA5 2020); Brizuela v. Garland, 71 F. 4th 
+1087, 1093 (CA8 2023); Sharma v. Garland, 9 F. 4th 1052, 1060 (CA9 2021); 
+Martinez v. Attorney Gen., 992 F. 3d 1283, 1292 (CA11 2021). 
+
+Page Proof Pending Publication
+546 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+A 
+Like this case, Elias-Zacarias began with an IJ's determi­
+nation that a noncitizen was ineligible for asylum. Id., at 
+480. Elias-Zacarias had testifed that he feared retaliation 
+in his home country of Guatemala after he refused to join a 
+group of guerillas who had attempted to recruit him. Id., 
+at 479–480. But the IJ concluded that this testimony “failed 
+to demonstrate persecution or a well-founded fear of perse­
+cution on account of race, religion, nationality, membership 
+in a particular social group, or political opinion” as the INA 
+requires. Id., at 480 (citing 8 U. S. C. §§ 1101(a)(42), 1158(a)). 
+After the BIA affrmed, Elias-Zacarias sought review in fed­
+eral court. 502 U. S., at 480. 
+The Court of Appeals sided with Elias-Zacarias, holding 
+that “a guerilla organization's attempt to conscript a person 
+into its military forces necessarily constitutes `persecution 
+on account of . . . political opinion,' because `the person resist­
+ing forced recruitment is expressing a political opinion hos­
+tile to the persecutor.' ” Id., at 481 (quoting Elias-Zacarias 
+v. INS, 921 F. 2d 844, 850 (CA9 1990)). We reversed the 
+Court of Appeals, however, reading the INA to require 
+substantial-evidence review. See 502 U. S., at 481, 483–484. 
+The version of the INA in place at the time of our decision 
+did not contain what is now § 1252(b)(4)(B). But it contained 
+a similar provision, which specifed that agency “fndings of 
+fact, if supported by reasonable, substantial, and probative 
+evidence on the record considered as a whole, shall be conclu­
+sive.” 8 U. S. C. § 1105a(a)(4) (1988 ed.). We interpreted 
+that provision to require substantial-evidence review of the 
+BIA's determination that Elias-Zacarias was ineligible for 
+asylum. More specifcally, we explained that the provision 
+set forth the substantial-evidence standard for review, allow­
+ing reversal “only if the evidence presented . . . was such 
+that a reasonable factfnder would have to conclude that the 
+requisite fear of persecution existed.” 502 U. S., at 481. 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+547 
+Opinion of the Court 
+Though we did not explicitly use the term “substantial evi­
+dence,” our explanation accorded with how we have long 
+understood that standard to apply in the administrative 
+context. See Consolidated Edison, 305 U. S., at 229 (ex­
+plaining that a statute providing that an agency's “fndings 
+. . . as to the facts, if supported by evidence, shall be conclu­
+sive” means “substantial evidence” and requires only “such 
+relevant evidence as a reasonable mind might accept as ade­
+quate to support a conclusion” (internal quotation marks 
+omitted)). 
+We then went on to apply the substantial-evidence stand­
+ard to the entirety of the agency's persecution determina­
+tion—including its conclusion that Elias-Zacarias's testimony 
+did not satisfy the legal standard for persecution. We ex­
+plained that Elias-Zacarias had failed to establish a “well­
+founded fear” that the guerillas would “persecute him be­
+cause of ” his political opinion “with the degree of clarity 
+necessary to permit reversal of a BIA fnding to the con­
+trary.” 502 U. S., at 483 (internal quotation marks omitted). 
+In other words, even accepting his allegations as true, 
+they were not “so compelling that no reasonable factfnder 
+could fail to fnd the requisite fear of persecution.” Id., at 
+484. 
+Elias-Zacarias thus clarifed that the INA's provision 
+for substantial-evidence review encompassed not only the 
+agency's factual fndings but also the application of those 
+fndings to the statutory standard for persecution. Indeed, 
+following our decision, the courts of appeals overwhelmingly 
+understood it to require substantial-evidence review of the 
+entirety of the persecution determination. See, e.g., Klawit­
+ter v. INS, 970 F. 2d 149, 152 (CA6 1992) (“According to the 
+Supreme Court, the Board's determination [a noncitizen] is 
+not eligible for asylum must be upheld unless the [noncitizen] 
+shows that the evidence he or she presented was `so compel­
+ling that no reasonable factfnder could fail to fnd the requi­
+
+Page Proof Pending Publication
+548 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+site fear of persecution' ” (quoting Elias-Zacarias, 502 U. S., 
+at 483–484)).5 
+B 
+Just a few years after we decided Elias-Zacarias, Con­
+gress passed the Illegal Immigration Reform and Immigrant 
+Responsibility Act of 1996 (IIRIRA), amending several pro­
+visions of the INA governing judicial review. § 306(a)(2), 
+110 Stat. 3009–607. Among other things, IIRIRA added 
+§ 1252(b)(4), clarifying the relevant standards of review for 
+IJ and BIA removal orders. But § 1252(b)(4) did not depart 
+from our decision in Elias-Zacarias. To the contrary, 
+§ 1252(b)(4) stayed the course. 
+Indeed, subparagraph (B) largely tracks our opinion in 
+Elias-Zacarias. Compare § 1252(b)(4)(B) (providing that 
+“administrative fndings of fact are conclusive unless any rea­
+sonable adjudicator would be compelled to conclude to the 
+contrary”) with 502 U. S., at 483–484 (stating that, if an asy­
+lum applicant “seeks to obtain judicial reversal of the BIA's 
+determination, he must show that the evidence he presented 
+was so compelling that no reasonable factfnder could fail to 
+fnd the requisite fear of persecution”). Thus, § 1252(b)(4)(B) 
+effectively restates the pre-IIRIRA practice of applying the 
+INA's deferential standard for factual fndings to the perse­
+cution determination. Cf. Bartenwerfer v. Buckley, 598 
+U. S. 69, 80 (2023) (“This Court generally assumes that, when 
+Congress enacts statutes, it is aware of this Court's relevant 
+precedents” (internal quotation marks omitted)). 
+Supporting this reading of § 1252(b)(4)(B) are IIRIRA's 
+other amendments to the INA, which tend to restrict (rather 
+than expand) review of immigration-related determinations 
+in federal court. IIRIRA added, for instance, § 1252(a) 
+5 See also Huaman-Cornelio v. BIA, 979 F. 2d 995, 999 (CA4 1992) (citing 
+Elias-Zacarias, 502 U. S., at 483–484); Chun v. INS, 40 F. 3d 76, 78 (CA5 
+1994) (per curiam) (same); Milosevic v. INS, 18 F. 3d 366, 370 (CA7 1994) 
+(same); Yacoub v. INS, 999 F. 2d 1296, 1297 (CA8 1993) (per curiam) 
+(same); Kazlauskas v. INS, 46 F. 3d 902, 905 (CA9 1995) (same). 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+549 
+Opinion of the Court 
+(2)(D), which strips courts of jurisdiction to review certain 
+types of removal orders entirely, restoring jurisdiction only 
+for “constitutional claims or questions of law.” IIRIRA sim­
+ilarly limited the scope of review under § 1252(b)(4), even in 
+the areas where courts retain their jurisdiction over removal 
+orders. Not only does subparagraph (B) require deference 
+toward “administrative fndings of fact,” but subparagraphs 
+(C) and (D) mandate that certain agency determinations are 
+“conclusive unless manifestly contrary to the law.” Against 
+this backdrop, it would make little sense to interpret sub­
+paragraph (B) as expanding judicial review beyond the pre-
+IIRIRA practice of applying deference to agency persecu­
+tion determinations. 
+IV 
+Given the force of Elias-Zacarias and IIRIRA's enact­
+ment history, we cannot accept petitioners' arguments about 
+the applicable standard of review. Petitioners primarily 
+contend that Congress meant for de novo review to apply to 
+persecution determinations because § 1252(b)(4)(B) requires 
+deference only for “fndings of fact” and no subparagraph of 
+§ 1252(b)(4) explicitly addresses the “mixed question of law 
+and fact” that is the determination of past persecution and 
+fear of future persecution. See Brief for Petitioners 15–16. 
+With their focus on the metaphorical trees, we think peti­
+tioners have missed the forest. It is certainly true that the 
+required persecution determination turns on more than just 
+the facts: The INA's legal standard for “persecution” must 
+be applied to the IJ's fndings of fact. But Elias-Zacarias 
+and the subsequent statutory history suggest that Congress 
+meant for the entirety of this kind of “mixed” determina­
+tion—including both the IJ's factual fndings and the applica­
+tion of the statute to those fndings—to receive deference 
+under § 1252(b)(4)(B). That makes sense because the overall 
+determination of refugee status primarily requires the IJ to 
+make critical factual fndings about a given applicant's expe­
+riences in his country of nationality. And even where, as 
+
+Page Proof Pending Publication
+550 
+URIAS-ORELLANA v. BONDI 
+Opinion of the Court 
+here, the IJ accepts the applicant's testimony as true, the IJ 
+must make an antecedent determination on the factual ques­
+tion of the applicant's credibility. See Garland v. Ming Dai, 
+593 U. S. 357, 373 (2021) (explaining that, during immigration 
+proceedings, the IJ “makes fndings of fact, including deter­
+minations as to the credibility of particular witness testi­
+mony”). Given that Congress has required the courts of 
+appeals to give significant deference to IJ factfinding 
+throughout § 1252(b)(4), it would be anomalous indeed to con­
+clude that courts can review substantially similar 
+persecution-related fndings de novo.6 
+Our decisions in Wilkinson v. Garland, 601 U. S. 209 
+(2024), and Guerrero-Lasprilla v. Barr, 589 U. S. 221 (2020), 
+are not to the contrary. In those cases, we held that a mixed 
+question of law and fact could qualify as a “question of law” 
+exempt from § 1252(a)'s bar on judicial review. 601 U. S., 
+at 212; 589 U. S., at 225. But unlike § 1252(b), § 1252(a) does 
+not speak to the standards of review for removal orders; 
+rather, it addresses a court's ability to review removal orders 
+at all. As a result, whether a given issue is treated as 
+a question of law exempt from the INA's jurisdiction-
+stripping provisions tells us nothing about the type of review 
+the court must afford to that issue under other provisions of 
+the statute. See Wilkinson, 601 U. S., at 222 (recognizing 
+that the INA's jurisdiction-stripping provisions do not gov­
+ern the standard of review); Guerrero-Lasprilla, 589 U. S., 
+at 228 (same). Neither case, then, requires de novo review 
+here. 
+6 Our conclusion that § 1252(b)(4)(B) applies to the persecution determi­
+nation and sets forth a deferential standard of review means we need not 
+address petitioners' argument about Loper Bright Enterprises v. Rai­
+mondo, 603 U. S. 369 (2024). See Brief for Petitioners 23–24 (maintaining 
+that Loper Bright requires de novo review under these circumstances). 
+That decision is not applicable “when a particular statute” mandates defer­
+ential review or otherwise “delegates authority to an agency consistent 
+with constitutional limits.” 603 U. S., at 413. 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 537 (2026) 
+551 
+Opinion of the Court 
+*
+*
+* 
+Because the Court of Appeals applied the appropriate 
+standard under § 1252(b)(4)(B) when it reviewed the agency 
+persecution determination for substantial evidence, the judg­
+ment below is affrmed. 
+It is so ordered. 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. Other revisions may include adjustments to formatting, cap­
+tions, citation form, and any errant punctuation. The following additional 
+edits were made: 
+None 
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+PRELIMINARY PRINT 
+Volume 596 U. S. Part 2 
+Pages 543–572 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 13, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2021 
+543 
+Syllabus 
+GARLAND, ATTORNEY GENERAL, et al. v. 
+ALEMAN GONZALEZ et al. 
+certiorari to the united states court of appeals for 
+the ninth circuit 
+No. 20–322. Argued January 11, 2022—Decided June 13, 2022* 
+Respondents are aliens who were detained by the Federal Government 
+pursuant to 8 U. S. C. § 1231(a)(6) of the Immigration and Nationality 
+Act (INA). Respondents Esteban Aleman Gonzalez and Jose Eduardo 
+Gutierrez Sanchez—the named plaintiffs in the case that bears Aleman 
+Gonzalez's name—are natives and citizens of Mexico who were detained 
+under § 1231(a)(6) after reentering the United States illegally. They 
+fled a putative class action in the United States District Court for the 
+Northern District of California, alleging that aliens detained under 
+§ 1231(a)(6) are entitled to bond hearings after six months' detention. 
+The District Court certifed a class of similarly situated plaintiffs and 
+“enjoined [the Government] from detaining [respondents] and the class 
+members pursuant to section 1231(a)(6) for more than 180 days without 
+providing each a bond hearing.” Gonzalez v. Sessions, 325 F. R. D. 616, 
+629. A divided panel of the Ninth Circuit affrmed. Aleman Gonzalez 
+v. Barr, 955 F. 3d 762, 766. Respondent Edwin Flores Tejada—the 
+named plaintiff in the case that bears his name—is a native and citizen 
+of El Salvador. He likewise reentered the country illegally and was 
+detained under § 1231(a)(6). He fled suit in the Western District of 
+Washington, alleging that § 1231(a)(6) entitled him to a bond hearing. 
+The District Court certifed a class, granted partial summary judgment 
+against the Government, and entered class-wide injunctive relief. A 
+divided panel of the Ninth Circuit affrmed. Flores Tejada v. Godfrey, 
+954 F. 3d 1245, 1247. This Court granted certiorari and instructed the 
+parties to brief the threshold question whether the District Courts had 
+jurisdiction to entertain respondents' requests for class-wide injunctive 
+relief under the INA. 
+Held: Section 1252(f)(1) of the INA deprived the District Courts of juris­
+diction to entertain respondents' requests for class-wide injunctive re­
+lief. Pp. 548–556. 
+(a) Section 1252(f)(1) generally strips lower courts of “jurisdiction or 
+authority” to “enjoin or restrain the operation of” certain provisions of 
+*Together with Garland, Attorney General, et al. v. Flores Tejada et al. 
+(see this Court's Rule 12.4), also on certiorari to the same court. 
+
+Page Proof Pending Publication
+544 
+GARLAND v. ALEMAN GONZALEZ 
+Syllabus 
+the INA. The ordinary meaning of the terms “enjoin” and “restrain” 
+bars the class-wide relief awarded by the two District Courts here. 
+When a court “enjoins” conduct, it issues an “injunction,” which is a 
+judicial order that “tells someone what to do or not to do.” Nken v. 
+Holder, 556 U. S. 418, 428. The Court has suggested that “restrain” 
+sometimes has a “broad meaning” that refers to judicial orders that 
+“inhibit” particular actions, and at other times it has a “narrower mean­
+ing” that includes “orders that stop (or perhaps compel)” such acts. Di­
+rect Marketing Assn. v. Brohl, 575 U. S. 1, 12–13. In §1252(f)(1), the 
+object of the verbs “enjoin or restrain” is the “operation of” certain 
+provisions of the INA—provisions that charge the Federal Government 
+with the implementation and enforcement of the immigration laws gov­
+erning the inspection, apprehension, examination, and removal of aliens. 
+See §§1221–1232. Putting these terms together, §1252(f)(1) generally 
+prohibits lower courts from entering injunctions that order federal off­
+cials to take or to refrain from taking actions to enforce, implement, or 
+otherwise carry out the referenced INA statutory provisions. 
+Section 1252(f)(1) includes one exception to this general prohibition: 
+The lower courts retain the authority to “enjoin or restrain the opera­
+tion of” the relevant statutory provisions “with respect to the applica­
+tion of such provisions to an individual alien against whom proceedings 
+under such part have been initiated.” In Reno v. American-Arab Anti-
+Discrimination Comm., 525 U. S. 471, 481–482, the Court stated that 
+§1252(f)(1) “prohibits federal courts from granting classwide injunctive 
+relief” but “does not extend to individual cases.” Here, both District 
+Courts entered injunctions requiring the Government to provide bond 
+hearings, not only for respondents, but also for all other class members. 
+Those orders “enjoin or restrain the operation” of § 1231(a)(6) because 
+they require offcials to take actions that (in the Government's view) are 
+not required by § 1231(a)(6) and to refrain from actions that (again in 
+the Government's view) are allowed by § 1231(a)(6). Those injunctions 
+thus interfere with the Government's efforts to operate § 1231(a)(6), and 
+the injunctions do not fall within the exception for individualized relief 
+because the injunctions were entered on behalf of entire classes of 
+aliens. Pp. 548–551. 
+(b) Respondents' two counter-arguments fail. First, respondents 
+contend that “the operation” of the covered immigration provisions 
+means the operation of those provisions “as properly interpreted” and 
+that what §1252(f)(1) bars are class-wide injunctions that prohibit the 
+Government from doing what the statute allows or commands. Brief 
+for Respondents 49 (emphasis added). The ordinary meaning of the 
+language of §1252(f)(1) weighs against respondents' interpretation. It 
+is very common to refer to the “unlawful” or “improper” operation of 
+something, and it is not apparent why the same cannot be said of a 
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 543 (2022) 
+545 
+Syllabus 
+statute. The statutory context provides additional reasons to reject 
+respondents' reading. 
+Respondents next argue that §1252(f)(1) allows class-wide relief so 
+long as all the class members are “individuals who already face the 
+enforcement action.” Id., at 55 (emphasis added). But §1252(f)(1) re­
+fers to “an individual,” not “individuals,” and the Court has repeatedly 
+stated that it bars class-wide injunctive relief. See, e. g., American-
+Arab Anti-Discrimination Comm., 525 U. S., at 481. Respondents 
+argue that the absence of any express reference to class actions in 
+§1252(f)(1)—unlike the express reference in §1252(e)(1)—suggests that 
+no preclusion of class-wide relief was intended. The Court is reluctant 
+to give much weight to this negative inference; it is possible that 
+§1252(f)(1) simply uses different language to bar class-wide injunctive 
+relief. But a literal reading of the provision could also rule out efforts 
+to obtain any injunctive relief that applies to multiple named plaintiffs. 
+The Court has no occasion to adopt such an interpretation here. It is 
+suffcient to hold that the class-wide injunctive relief awarded in these 
+cases was unlawful. Pp. 552–555. 
+955 F. 3d 762 and 954 F. 3d 1245, reversed and remanded. 
+Alito, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Soto-
+mayor, J., fled an opinion concurring in the judgment in part and dissent­
+ing in part, in which Kagan, J., joined, and in which Breyer, J., joined as 
+to Parts II–A–2, II–B–2, and III, post, p. 556. 
+Deputy Solicitor General Gannon argued the cause for 
+petitioners. With him on the brief were Solicitor General 
+Prelogar, Acting Solicitor General Fletcher, Acting Assist­
+ant Attorney General Boynton, Vivek Suri, Austin L. 
+Raynor, and Jessica W. D'Arrigo. 
+Matthew H. Adams argued the cause for respondents. 
+With him on the brief were Leila Kang, Aaron Korthuis, 
+Michael Kaufman, Ahilan Arulanantham, Marc Van Der 
+Hout, Johnny Sinodis, Alison Pennington, Claudia Valen­
+zuela, Vasudha Talla, David D. Cole, Judah Lakin, Amalia 
+Wille, Jesse Newmark, Bardis Vakili, Cecillia D. Wang, and 
+Michael K. T. Tan.† 
+†Lawrence J. Joseph and Christopher J. Hajec fled a brief for the Immi­
+gration Reform Law Institute as amicus curiae urging reversal. 
+Briefs of amici curiae urging affrmance were fled for the Constitu­
+tional Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, 
+
+546 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+Respondents in these two cases are aliens who were de­
+tained by the Federal Government pursuant to 8 U. S. C. 
+§ 1231(a)(6) pending removal from this country. Respond­
+ents sued in two Federal District Courts, alleging that 
+§ 1231(a)(6) requires the Government to provide bond hear­
+ings in cases like theirs. Both District Courts certifed 
+classes, agreed with respondents' claims on the merits, and 
+entered class-wide injunctive relief. The Ninth Circuit af­
+frmed both judgments in relevant part. 
+We granted certiorari and instructed the parties to ad­
+dress whether another provision of the Immigration and Na­
+tionality Act, 66 Stat. 208, as amended, 8 U. S. C. §1252(f)(1), 
+deprived the District Courts of jurisdiction to entertain 
+respondents' requests for class-wide injunctive relief. 
+We hold that the statute has that effect, and we therefore 
+reverse. 
+I 
+The two cases before us arise out of respondents' detention 
+pursuant to § 1231(a)(6), which gives the Federal Govern­
+ment discretionary authority in specifed circumstances to 
+detain aliens who have been “ `ordered removed' ” from the 
+United States. See Johnson v. Arteaga-Martinez, 596 U. S. 
+573, 578–579 (2022). 
+Respondents Esteban Aleman Gonzalez and Jose Eduardo 
+Gutierrez Sanchez—the named plaintiffs in the case that 
+bears Aleman Gonzalez's name—are natives and citizens of 
+Mexico. They each reentered the United States illegally 
+and Brian R. Frazelle; for Former Immigration Judges et al. by Joseph 
+R. Palmore and James J. Beha II; and for Law Professors by Samir Deger-
+Sen and Richard P. Bress. 
+Briefs of amici curiae were fled for Asian Americans Advancing 
+Justice–Asian Law Caucus et al. by Nancy Morawetz; and for Retired 
+Federal Judges by Joshua A. Matz. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+547 
+Opinion of the Court 
+after being removed, and after they were apprehended, their 
+prior orders of removal were “reinstated” as authorized by 
+§ 1231(a)(5). They sought withholding of removal on the 
+ground that they would be subject to torture or persecution 
+if they were returned to Mexico. While they awaited pro­
+ceedings before an immigration judge, they were detained 
+under § 1231(a)(6), and they then fled a putative class action 
+in the United States District Court for the Northern District 
+of California, alleging that aliens detained under § 1231(a)(6) 
+are entitled to bond hearings after six months' detention. 
+The District Court certifed a class of similarly situated 
+plaintiffs and “enjoined [the Government] from detaining [re­
+spondents] and the class members pursuant to section 
+1231(a)(6) for more than 180 days without providing each a 
+bond hearing.” Gonzalez v. Sessions, 325 F. R. D. 616, 629 
+(2018). A divided panel of the Ninth Circuit affrmed. 
+Compare Aleman Gonzalez v. Barr, 955 F. 3d 762, 766 (2020), 
+with id., at 790 (Fernandez, J., dissenting). 
+Respondent Edwin Flores Tejada—the named plaintiff in 
+the case that bears his name—is a native and citizen of El 
+Salvador. He likewise was previously ordered removed, re­
+entered the country illegally, had his prior removal order 
+reinstated, applied for withholding of removal, and was de­
+tained under § 1231(a)(6). He fled suit in the Western Dis­
+trict of Washington, likewise alleging (as relevant here) that 
+§ 1231(a)(6) entitled him to a bond hearing. The District 
+Court certifed a class, granted partial summary judgment 
+against the Government, and entered class-wide injunctive 
+relief. See App. to Pet. for Cert. 110a; Report and Recom­
+mendation in Martinez Baños v. Asher, No. 2:16–cv–01454 
+(WD Wash., Jan. 23, 2018) (ECF), Doc. 77–1, p. 2. A divided 
+panel of the Ninth Circuit affrmed in relevant part. Com­
+pare Flores Tejada v. Godfrey, 954 F. 3d 1245, 1247 (2020), 
+with id., at 1251 (Fernandez, J., concurring in part and dis­
+senting in part). 
+Page Proof Pending Publication
+
+548 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of the Court 
+The Government petitioned for certiorari and asked us to 
+decide whether an alien detained under § 1231(a)(6) is enti­
+tled to a bond hearing. We granted that petition and in­
+structed the parties to address the threshold question 
+whether the District Courts had jurisdiction to entertain re­
+spondents' requests for class-wide injunctive relief. 594 
+U. S. ––– (2021). 
+II 
+We hold that the District Courts exceeded their jurisdic­
+tion in awarding such relief. 
+A 
+1 
+We begin with the text of §1252(f)(1), which provides: 
+“Regardless of the nature of the action or claim or of 
+the identity of the party or parties bringing the action, 
+no court (other than the Supreme Court) shall have ju­
+risdiction or authority to enjoin or restrain the opera­
+tion of the provisions of part IV of this subchapter, as 
+amended by the Illegal Immigration Reform and Immi­
+grant Responsibility Act of 1996, other than with re­
+spect to the application of such provisions to an individ­
+ual alien against whom proceedings under such part 
+have been initiated.” (Emphasis added.) 
+With one exception that we will discuss momentarily, the 
+critical language in this provision strips lower courts of “ju­
+risdiction or authority” to “enjoin or restrain the operation 
+of” the relevant statutory provisions. The ordinary mean­
+ing of these terms bars the class-wide relief awarded by the 
+two District Courts. 
+The term “to enjoin” ordinarily means to “require,” “com­
+mand,” or “positively direct” an action or to “require a per­
+son . . . to perform, or to abstain or desist from, some act.” 
+Black's Law Dictionary 529 (6th ed. 1990); see also Webster's 
+Third New International Dictionary 754 (1993) (defning “en­
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+549 
+Opinion of the Court 
+join” to mean “to direct, prescribe, or impose by order”). 
+When a court “enjoins” conduct, it issues an “injunction,” 
+which is a judicial order that “tells someone what to do or 
+not to do.” Nken v. Holder, 556 U. S. 418, 428 (2009); see 
+also Black's Law Dictionary, at 784 (defning an “injunction” 
+as a “court order prohibiting someone from doing some speci­
+fed act or commanding someone to undo some wrong or in­
+jury”); 2 J. Story, Commentaries on Equity Jurisprudence 
+§ 861, p. 178 (13th ed. 1886) (similar). 
+The term “to restrain” means to “check, hold back, or pre­
+vent (a person or thing) from some course of action.” 5 Ox­
+ford English Dictionary 756 (2d ed. 1989) (emphasis deleted); 
+Webster's Third New International Dictionary, at 1936 (“to 
+hold (as a person) back from some action, procedure, or 
+course: prevent from doing something”). We have sug­
+gested in another context that “restrain” sometimes has a 
+“broad meaning” that refers to judicial orders that “inhibit” 
+particular actions, and at other times it has a “narrower 
+meaning” that includes “orders that stop (or perhaps com­
+pel)” such acts. Direct Marketing Assn. v. Brohl, 575 U. S. 
+1, 12–13 (2015) (emphasis deleted). 
+The object of the verbs “enjoin or restrain” is the “opera­
+tion of ” certain provisions of federal immigration law. See 
+§§1221–1232. The “operation of” (a thing) means the func­
+tioning of or working of (that thing). Random House Dic­
+tionary of the English Language 1357 (2d ed. 1987) (“an act 
+or instance, process, or manner of functioning or operating”); 
+Webster's Third New International Dictionary, at 1581 
+(“method or manner of functioning”). The way in which 
+laws ordinarily “work” or “function” is through the actions 
+of offcials or other persons who implement them. This is 
+certainly true of the statutes to which §1252(f)(1) refers— 
+i.e., the provisions of part IV of subchapter II of the Immi­
+gration and Nationality Act. Those provisions charge the 
+Federal Government with the implementation and enforce­
+ment of the immigration laws governing the inspection, ap­
+Page Proof Pending Publication
+
+550 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of the Court 
+prehension, examination, and removal of aliens. 
+See 
+§§1221–1232. Accordingly, the “operation of” the relevant 
+statutes is best understood to refer to the Government's ef­
+forts to enforce or implement them. As the Government 
+put it at oral argument, the “operation of the provisions” is 
+a reference “not just to the statute itself but to the way that 
+[it is] being carried out.” Tr. of Oral Arg. 11. 
+Putting these terms together, §1252(f)(1) generally pro­
+hibits lower courts from entering injunctions that order fed­
+eral offcials to take or to refrain from taking actions to 
+enforce, implement, or otherwise carry out the specifed 
+statutory provisions. 
+2 
+Section 1252(f)(1) includes one exception to this general 
+prohibition: The lower courts retain the authority to “enjoin 
+or restrain the operation of” the relevant statutory provi­
+sions “with respect to the application of such provisions to 
+an individual alien against whom proceedings under such 
+part have been initiated.” 
+The Court has already commented on the meaning of this 
+exception. In Reno v. American-Arab Anti-Discrimination 
+Comm., 525 U. S. 471, 481–482 (1999), we wrote that §1252(f) 
+(1) “prohibits federal courts from granting classwide injunc­
+tive relief” but “does not extend to individual cases.” See 
+also Jennings v. Rodriguez, 583 U. S. –––, ––– (2018); Nken, 
+556 U. S., at 431. 
+This interpretation follows from the statutory text. In 
+framing the exception to the general ban on injunctive relief, 
+Congress used the phrase “an individual alien.” It thus em­
+ployed a singular noun (“an alien”), modifed by an adjective 
+(“individual”) that means “pertaining or belonging to, or 
+characteristic of, one single person.” Black's Law Diction­
+ary, at 773. Therefore, §1252(f)(1) does not preclude a court 
+from entering injunctive relief on behalf of a particular alien 
+(so long as “proceedings” against the alien have been “initi­
+ated”), but injunctive relief on behalf of an entire class of 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+551 
+Opinion of the Court 
+aliens is not allowed because it is not limited to remedying 
+the unlawful “application” of the relevant statutes to “an 
+individual alien.” 
+3 
+On this interpretation of §1252(f)(1), the injunctions en­
+tered by the District Courts in these cases were barred. 
+The respondents in both cases were detained pursuant to 
+§ 1231(a)(6), and no one disputes that § 1231(a)(6) is among 
+the provisions the “operation” of which cannot be “enjoined 
+or restrained” under §1252(f)(1). Both District Courts en­
+tered injunctions requiring the Government to provide bond 
+hearings not only for respondents but also for all other class 
+members.1 
+Those orders “enjoin or restrain the operation” 
+of § 1231(a)(6) because they require offcials to take actions 
+that (in the Government's view) are not required by § 1231(a) 
+(6) and to refrain from actions that (again in the Govern­
+ment's view) are allowed by § 1231(a)(6). Those injunctions 
+thus interfere with the Government's efforts to operate 
+§ 1231(a)(6), and the injunctions do not fall within the excep­
+tion for individualized relief because the injunctions were 
+entered on behalf of entire classes of aliens.2 
+1 See Gonzalez v. Sessions, 325 F. R. D. 616, 629 (ND Cal. 2018) (“The 
+Government is enjoined from detaining Plaintiffs and the class members 
+pursuant to section 1231(a)(6) for more than 180 days without providing 
+each a bond hearing before an [immigration judge]”); ECF Doc. 77–1, at 2 
+(“The Government is enjoined from enforcing their policy and practice of 
+failing to provide class members with individualized custody hearings be­
+fore an [immigration judge] every six months” (boldface and capitaliza­
+tion omitted)). 
+2 At oral argument, the Government suggested that §1252(f)(1) not only 
+bars class-wide injunctive relief but also prohibits any other form of relief 
+that is “practically similar to an injunction,” including class-wide declara­
+tory relief. Tr. of Oral Arg. 16. The Government analogized §1252(f)(1) 
+to the Tax Injunction Act, 28 U. S. C. § 1341, which we have held extends 
+to declaratory judgments. See California v. Grace Brethren Church, 457 
+U. S. 393, 408–409 (1982). Because only injunctive relief was entered 
+here, we have no occasion to address this argument. 
+Page Proof Pending Publication
+
+552 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of the Court 
+B 
+Respondents advance two counter-arguments, but both 
+fail. 
+1 
+Respondents frst contend that “the operation” of the cov­
+ered immigration provisions means the operation of those 
+provisions “as properly interpreted” and that what §1252(f) 
+(1) bars are class-wide injunctions that prohibit the Govern­
+ment from doing what the statute allows or commands. 
+Brief for Respondents 49 (emphasis added). 
+We do not think that this is the most natural interpreta­
+tion of the term “operation,” since it is very common to refer 
+to the “unlawful” or “improper” operation of whatever it is 
+that is being operated. See, e. g., Brendlin v. California, 
+551 U. S. 249, 253 (2007) (“unlawful operation of the car”); 
+Kansas v. Colorado, 533 U. S. 1, 7 (2001) (“improper opera­
+tion” of “drainage ditches”); Jeffers v. United States, 432 
+U. S. 137, 149, n. 14 (1977) (plurality opinion) (“unlawful oper­
+ation of motor carriers”); Chicago, B. & Q. R. Co. v. Willard, 
+220 U. S. 413, 424 (1911) (“unlawful operation of a railway”); 
+United States v. Medford, 661 F. 3d 746, 747 (CA4 2011) (“un­
+lawful operation of video poker machines”); In re Dillon, 138 
+Fed. Appx. 609, 611 (CA5 2005) (“unlawful operation of public 
+water utilities”); Cadillac/Oldsmobile/Nissan Center, Inc. v. 
+General Motors Corp., 391 F. 3d 304, 311 (CA1 2004) (“unlaw­
+ful operation of [auto dealership]”); Ickes v. FAA, 299 F. 3d 
+260, 265–266 (CA3 2002) (per curiam) (“unlawful operation 
+of [airplane]”); Williams v. Panetta, 70 F. 3d 110, 1995 WL 
+686128, *1 (CA1 1995) (per curiam) (“unlawful operation of 
+a `megawatt' CB radio”); Cox Cable Tucson, Inc. v. Ladd, 795 
+F. 2d 1479, 1485 (CA9 1986) (“unlawful operation of its CATV 
+cable systems” (internal quotation marks omitted)). If cars, 
+trucks, railroads, water utilities, drainage ditches, auto deal­
+erships, planes, radios, video poker machines, cable TV sys­
+tems, and many other things can be unlawfully or improperly 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 543 (2022) 
+553 
+Opinion of the Court 
+operated, it is not apparent why the same cannot be said of 
+a statute. Thus, the ordinary meaning of the language of 
+§1252(f)(1) weighs against respondents' interpretation.3 
+Apart from ordinary meaning, the statutory context pro­
+vides three additional reasons to reject respondents' reading. 
+First, respondents' interpretation, which makes the reach of 
+§1252(f)(1) depend on the nature of the claim in question, 
+clashes with §1252(f)(1)'s prefatory clause, which states that 
+the bar applies “[r]egardless of the nature of the action or 
+claim.” See also Nielsen v. Preap, 586 U. S. –––, ––– (2019) 
+(Thomas, J., concurring in part and concurring in judgment). 
+Second, respondents' interpretation would limit §1252(f) 
+(1)'s restriction to a most unlikely set of claims. With 
+perhaps a few small exceptions,4 the only claims to which 
+3 The dissent agrees that “operation” means “functioning” or “working,” 
+but it claims that “unlawful agency action is not a part of the functioning 
+or working of the authorizing statute.” Post, at 559 (opinion of Soto-
+mayor, J.). The reason that statutes cannot be operated unlawfully, ac­
+cording to the dissent, is this: “[A] statute is the law. Offcials may imple­
+ment a statute unlawfully, but a statute does not operate in confict with 
+itself.” Post, at 566. But because to “implement” a statute is to “carry 
+out” that statute, Random House Dictionary of the English Language 715 
+(2d ed. 1987); Webster's Third New International Dictionary 1134 (1993), 
+the dissent's concession that a statute can be “implement[ed]” “unlawfully” 
+is quite damaging to its position. The dissent asserts, but never explains 
+why, the same cannot be said of a statute's “operation.” 
+4 Respondents argue in passing that their interpretation would also bar 
+injunctive relief for certain statutory claims. See Brief for Respondents 
+52; see also post, at 567–568. Respondents hypothesize a situation in 
+which a non-immigration statute, or some immigration statute not speci­
+fed in §1252(f)(1), might require injunctive relief against the enforcement 
+of one of the covered immigration provisions. Their brief cited no case 
+in which such a situation has ever arisen. At oral argument counsel for 
+respondents did reference one case, see Tr. of Oral Arg. 34–35 (referencing 
+Gonzales v. DHS, 508 F. 3d 1227 (CA9 2007)), but that case stands at 
+most for the unresponsive proposition that a court may enjoin the unlawful 
+operation of a provision that is not specifed in §1252(f)(1) even if that 
+injunction has some collateral effect on the operation of a covered provi­
+sion, see id., at 1233. 
+
+Page Proof Pending Publication
+554 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of the Court 
+§ 1252(f)(1)'s prohibition would apply are constitutional 
+claims. But it would be most unusual for Congress to disfa­
+vor constitutional claims in this way. Cf. Webster v. Doe, 
+486 U. S. 592, 603 (1988) (requiring “clear” indication of con­
+gressional intent to “preclude judicial review of constitu­
+tional claims”). And if Congress had wanted to target just 
+constitutional claims, it could have surely made the point 
+more directly. The suggestion that Congress sought to 
+achieve that goal by using the term “operation” is far-fetched. 
+Third, respondents' interpretation would make a court's 
+jurisdiction to entertain a request for class-wide injunctive 
+relief dependent upon the merits of the claim. Under re­
+spondents' reading, if a complaint sought class-wide relief on 
+the ground that the Government was misinterpreting and 
+misapplying a covered statutory provision, the court would 
+proceed to adjudicate the merits of that claim and might even 
+hold a trial. But if the court ultimately rejected the claim 
+on the merits, that holding would mean that the court never 
+had jurisdiction to grant that request for relief.5 
+For all these reasons, respondents' interpretation of “oper­
+ation” must be rejected. 
+2 
+Respondents next argue that §1252(f)(1) allows class-wide 
+relief so long as all the class members are “individuals who 
+already face the enforcement action.” Brief for Respond­
+ents 55 (emphasis added). But §1252(f)(1) refers to “an indi­
+vidual,” not “individuals,” and as noted, we have stated on 
+5 The dissent says, post, at 567, that it is common for jurisdictional in­
+quiries and the merits to overlap, and that is of course true. But the 
+dissent's interpretation would mean that §1252(f)(1) precludes injunctive 
+relief for a plaintiff's statutory claim if, but only if, that claim already 
+independently fails on the merits. The dissent cannot seriously dispute 
+that such complete overlap between a jurisdictional inquiry and the merits 
+of a claim is unusual, and an interpretation of §1252(f)(1) that bars injunc­
+tive relief only when such relief would already be improper fails to “give 
+effect” to “every clause” of §1252(f)(1). Duncan v. Walker, 533 U. S. 167, 
+174 (2001) (internal quotation marks omitted). 
+
+Cite as: 596 U. S. 543 (2022) 
+555 
+Opinion of the Court 
+more than one occasion that it bars class-wide injunctive re­
+lief. See American-Arab Anti-Discrimination Comm., 525 
+U. S., at 481; Jennings, 583 U. S., at –––; Nken, 556 U. S., 
+at 431. 
+Respondents dispute the correctness of these statements 
+and point out that a nearby provision, § 1252(e)(1)(B), ex­
+pressly bars the certifcation of “a class under Rule 23 of 
+the Federal Rules of Civil Procedure.” Because §1252(f)(1) 
+lacks any express reference to class actions, respondents 
+infer that no preclusion of class-wide relief was intended. 
+We are reluctant to give much weight to this negative in­
+ference. It is possible that §1252(f)(1) simply uses different 
+language to bar class-wide injunctive relief and extends no 
+further. But if the provision is not read that way, then the 
+most plausible reading is not that it allows class-wide relief 
+but rather that it permits injunctive relief only “with respect 
+to the application of [a covered provision] to an individual 
+alien against whom proceedings under such part have been 
+initiated.” §1252(f)(1) (emphasis added). A literal reading 
+of that language could rule out efforts to obtain any injunc­
+tive relief that applies to multiple named plaintiffs (or per­
+haps even rule out injunctive relief in a lawsuit brought by 
+multiple named plaintiffs). 
+The Government does not advocate that we adopt such an 
+interpretation, see Reply Brief 11, and we have no occasion 
+to do so in these cases. It is suffcient to hold that the class-
+wide injunctive relief awarded in these cases was unlawful.6 
+6 The dissent also notes that Califano v. Yamasaki, 442 U. S. 682, 698– 
+701 (1979), held that the Social Security Act provisions permitting “ `[a]ny 
+individual' ” to fle a “civil action” did not preclude class-wide relief. See 
+post, at 562–563, 568–569. That judicial-review provision, the Court rea­
+soned, was not “exempt” from the “operation of the Federal Rules of Civil 
+Procedure” that authorized class actions. Califano, 442 U. S., at 700. 
+Section 1252(f) (1) is quite different: It does not authorize judicial review 
+but limits it, and the saving clause is an exception to the general bar on 
+injunctive relief that must be read “narrowly in order to preserve the 
+primary operation of the provision.” Maracich v. Spears, 570 U. S. 48, 60 
+(2013) (internal quotation marks omitted). Califano is thus inapposite. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+556 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+*
+*
+* 
+The judgments of the Court of Appeals are reversed, and 
+the cases are remanded for further proceedings consistent 
+with this opinion. 
+It is so ordered. 
+Justice Sotomayor, with whom Justice Kagan joins, 
+and with whom Justice Breyer joins as to Parts II–A– 
+2, II–B–2, and III, concurring in the judgment in part and 
+dissenting in part. 
+The Court holds that lower federal courts are powerless 
+to issue classwide injunctive relief against the Executive 
+Branch's violation of noncitizens' rights under several provi­
+sions of the Immigration and Nationality Act (INA). It 
+reaches this conclusion in a purportedly textualist opinion 
+that, in truth, elevates piecemeal dictionary defnitions and 
+policy concerns over plain meaning and context. I respect­
+fully dissent from the Court's blinkered analysis, which will 
+leave many vulnerable noncitizens unable to protect their 
+rights.1 
+I 
+Respondents in these two cases are named plaintiffs in two 
+class actions: Esteban Aleman Gonzalez and Jose Eduardo 
+Gutierrez Sanchez in the Aleman Gonzalez litigation, and 
+Edwin Omar Flores Tejada in the Flores Tejada litigation. 
+Respondents sought withholding of removal under the INA 
+based on their fear that, if returned to their countries of 
+origin, they would face persecution or torture. See ante, at 
+547; Johnson v. Guzman Chavez, 594 U. S. –––, ––– – ––– 
+(2021) (explaining “withholding-only proceedings”). The 
+Government detained them pending their proceedings, a de­
+1 I concur in the judgment because the Government prevails on the mer­
+its. See Pet. for Cert. I; Johnson v. Arteaga-Martinez, 596 U. S. 573 
+(2022). 
+
+Cite as: 596 U. S. 543 (2022) 
+557 
+Opinion of Sotomayor, J. 
+tention this Court has held authorized by 8 U. S. C. § 1231. 
+See Guzman Chavez, 594 U. S., at –––. 
+In both cases, respondents raised statutory and constitu­
+tional challenges to their prolonged detention without bond 
+hearings. In both cases, respondents moved to certify 
+classes of similarly situated individuals. In Aleman Gonza­
+lez, the District Court certifed a class of “ `all individuals 
+who are detained pursuant to 8 U. S. C. § 1231(a)(6) in the 
+Ninth Circuit . . . and who have reached or will reach six 
+months in detention, and have been or will be denied a 
+prolonged detention bond hearing before an Immigration 
+Judge.' ” Gonzalez v. Sessions, 325 F. R. D. 616, 621, 626 
+(ND Cal. 2018). In Flores Tejada, the District Court certi­
+fed a class of “ `[a]ll individuals who (1) were placed in with­
+holding only proceedings . . . in the Western District of 
+Washington . . . , and (2) have been detained for 180 days (a) 
+without a custody hearing or (b) since receiving a custody 
+hearing.' ” App. to Pet. for Cert. 149a. By these defni­
+tions, the specifed classes include only individuals against 
+whom the Government has initiated removal proceedings. 
+Both District Courts held that § 1231(a)(6) did not author­
+ize prolonged detention exceeding six months without bond 
+hearings.2 
+Both District Courts issued classwide injunctive 
+relief (preliminary in Aleman Gonzalez and permanent in 
+Flores Tejada) requiring individualized bond hearings. The 
+Ninth Circuit affrmed in relevant part. 
+When the Government petitioned for certiorari, it chal­
+lenged only the lower courts' interpretations of § 1231(a)(6) 
+as requiring bond hearings after six months of detention. 
+See Pet. for Cert. I. The Court granted certiorari on the 
+question presented by the Government in these cases and a 
+companion case from the Third Circuit. 594 U. S. ––– (2021); 
+see Johnson v. Arteaga-Martinez, 596 U. S. 573 (2022). The 
+Court additionally directed the parties in these cases “to 
+2 The District Courts did not reach respondents' constitutional claims. 
+Page Proof Pending Publication
+
+558 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+brief and argue the following question: Whether, under 8 
+U. S. C. §1252(f)(1), the courts below had jurisdiction to 
+grant classwide injunctive relief.” 594 U. S. –––. As to 
+that question, the Court now holds that §1252(f)(1) barred 
+the lower courts from granting such relief. 
+II 
+Section 1252(f)(1) sets forth a precise limitation on the 
+lower federal courts' jurisdiction to enter injunctive relief in 
+cases involving specifed sections of the INA. The provi­
+sion states: 
+“(f) Limit on injunctive relief 
+“(1) In general 
+“Regardless of the nature of the action or claim or of 
+the identity of the party or parties bringing the action, 
+no court (other than the Supreme Court) shall have ju­
+risdiction or authority to enjoin or restrain the opera­
+tion of [§§ 1221–1232], as amended by the Illegal Immi­
+gration Reform and Immigrant Responsibility Act of 
+1996, other than with respect to the application of such 
+provisions to an individual alien against whom proceed­
+ings under such part have been initiated.” 
+Section 1252(f)(1) includes two operative clauses: a pri­
+mary clause that strips courts of authority “to enjoin or re­
+strain the operation of” the specifed provisions of the INA, 
+and a saving clause that reserves that authority as applied 
+to a noncitizen “against whom proceedings . . . have been 
+initiated.” Properly read, both clauses independently pre­
+serve the lower courts' authority to order classwide injunc­
+tive relief compelling the Executive Branch to comply with 
+the INA in these cases. The Court holds otherwise only by 
+disregarding the language Congress used in §1252(f)(1) it­
+self, elsewhere in § 1252, and in the INA as a whole. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+559 
+Opinion of Sotomayor, J. 
+A 
+1 
+Section 1252(f)(1)'s primary clause provides that the lower 
+federal courts may not “enjoin or restrain the operation of” 
+the specified provisions of the INA. An injunction that 
+compels the Executive Branch to comply with the specifed 
+provisions (or, phrased differently, prohibits the unlawful im­
+plementation of the specifed provisions) does not “enjoin or 
+restrain” the “operation” of those provisions. 
+This is clear as a matter of plain meaning. Starting with 
+the word “operation,” all agree that the ordinary meaning of 
+“operation” is “functioning” or “working.” Ante, at 549. 
+An injunction requiring the Executive Branch to conform its 
+conduct with a statute or to cease statutorily unauthorized 
+conduct does not enjoin or restrain the “functioning or work­
+ing” of the statute. That is because unlawful agency action 
+is not a part of the functioning or working of the authoriz­
+ing statute. 
+The Government responds that “operation,” as used in 
+§1252(f)(1), is synonymous with “implementation,” which may 
+include either lawful or unlawful implementation. Reply 
+Brief 3. This contention, however, disregards Congress' 
+careful choice of language. Section 1252(f)(1) says nothing 
+about enjoining or restraining the Executive Branch's “imple­
+mentation” of the law. By contrast, in other subsections of 
+§ 1252 enacted simultaneously with this one, Congress twice 
+expressly limited jurisdiction over challenges to “implementa­
+tion” of a statute or order or specifed a particular forum for 
+judicial review of such challenges. See § 1252(a)(2)(A)(i) (re­
+stricting jurisdiction to review claims “arising from or relating 
+to the implementation or operation of an order of removal”); 
+§ 1252(e)(3)(A) (channeling review of the “implementation” of 
+specifed provisions into the U. S. District Court for the Dis­
+trict of Columbia); see also §1252(a)(2)(A)(iv) (limiting juris­
+Page Proof Pending Publication
+
+560 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+diction to review “procedures and policies adopted by the 
+Attorney General to implement” a certain provision). As 
+this Court previously explained when interpreting this very 
+statute: “ `[W]here Congress includes particular language in 
+one section of a statute but omits it in another section . . . it 
+is generally presumed that Congress acts intentionally and 
+purposely in the disparate inclusion or exclusion.' ” Nken v. 
+Holder, 556 U. S. 418, 430 (2009). “This is particularly true 
+here, where [the relevant subsections of § 1252] were enacted 
+as part of a unifed overhaul of judicial review procedures.” 
+Id., at 430–431. 
+In addition to Congress' deliberate use of “operation,” its 
+use of “enjoin or restrain” in this context is most naturally 
+read to bar only lower court injunctions that stop the opera­
+tion of a statute, not those that command the Executive 
+Branch to conform its conduct to the statute. It is true that, 
+depending on the context, the word “enjoin” may describe a 
+prohibition (“abstain or desist from . . . some act”) or an 
+affrmative command (“perform . . . some act”). Black's Law 
+Dictionary 529 (6th ed. 1990); see ante, at 548–549. In 
+§1252(f)(1), however, clear textual signals point to the con­
+clusion that “enjoin” refers to a prohibition on the operation 
+of a statute. First, Congress consistently has used the term 
+“enjoin” in Title 8 to refer to prohibitions, including in the 
+immediately neighboring and simultaneously enacted subsec­
+tion, §1252(f)(2).3 
+“A standard principle of statutory con­
+struction provides that identical words and phrases within 
+the same statute should normally be given the same meaning,” 
+Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 
+232 (2007), particularly where, as here, “the same term was 
+used in related provisions enacted at the same time,” Return 
+3 Section 1252(f)(2) provides: “[N]o court shall enjoin the removal of any 
+alien pursuant to a fnal order under this section unless the alien shows 
+by clear and convincing evidence that the entry or execution of such order 
+is prohibited as a matter of law.” This use of “enjoin” can only mean 
+“prohibit.” 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+561 
+Opinion of Sotomayor, J. 
+Mail, Inc. v. Postal Service, 587 U. S. –––, ––– (2019). Even 
+beyond § 1252 itself, every use of “enjoin” in Title 8 refers to 
+prohibitory injunctions.4 
+Moreover, in §1252(f)(1) specif­
+cally, “enjoin” is paired with the term “restrain,” which 
+means to “check, hold back, or prevent (a person or thing) 
+from some course of action.” 13 Oxford English Dictionary 
+756 (2d ed. 1989) (emphasis deleted). “[T]he company [the 
+word] keeps,” Direct Marketing Assn. v. Brohl, 575 U. S. 1, 
+13 (2015), thus cements a prohibitory reading of “enjoin.” 
+Under this reading, lower courts may not prohibit the opera­
+tion of the specifed statutes, but nothing in §1252(f)(1) pre­
+vents them from commanding compliance with the statutes 
+or enjoining unauthorized agency action. 
+Finally, if any ambiguity remains as to the meaning of the 
+primary “enjoin or restrain the operation of” clause, a long­
+standing clear-statement principle counsels in favor of pre­
+serving the lower courts' remaining equitable jurisdiction. 
+This Court “ `will not construe a statute to displace courts' 
+traditional equitable authority absent the clearest com­
+mand.' ” McQuiggin v. Perkins, 569 U. S. 383, 397 (2013) 
+(quoting Holland v. Florida, 560 U. S. 631, 646 (2010)); ac­
+cord, e. g., Porter v. Warner Holding Co., 328 U. S. 395, 398 
+(1946); Brown v. Swann, 10 Pet. 497, 503 (1836). There can 
+be no doubt that §1252(f)(1) operates to displace equitable 
+authority to an extent. As explained, however, the most 
+natural and contextual reading of the provision's primary 
+clause does not limit federal courts' authority to enjoin or 
+4 See § 1227(a)(2)(E)(ii) (enacted simultaneously with § 1252 and refer­
+ring to a noncitizen “who at any time after admission is enjoined under a 
+protection order issued by a court,” with “protection order” defned as 
+“any injunction issued for the purpose of preventing violent or threatening 
+acts of domestic violence”); §1324a(f)(2) (authorizing the Attorney General 
+to sue over pattern or practice of unlawful employment, recruitment, or 
+referral of noncitizens under header titled “[e]njoining of pattern or prac­
+tice violations”). After oral argument in these cases, Congress used the 
+term “enjoined” in an amendment to an additional provision of Title 8, 
+again in a prohibitory sense. See § 1153(b)(5)(I)(iv)(I). 
+Page Proof Pending Publication
+
+562 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+restrain agency action unauthorized by statute, or to compel 
+agency action commanded by a statute. The clause con­
+tains nothing approaching the clear command necessary, 
+under centuries of this Court's precedents, to displace that 
+authority. 
+2 
+Independently of §1252(f)(1)'s primary clause, the provi­
+sion's saving clause also operates to preserve the lower fed­
+eral courts' equitable authority here. That clause provides 
+that lower courts may enjoin or restrain the operation of the 
+covered statutory provisions “with respect to the application 
+of such provisions to an individual alien against whom pro­
+ceedings under such part have been initiated.” §1252(f)(1). 
+Each benefciary of the injunctions in these cases is “an in­
+dividual alien against whom [removal] proceedings . . . 
+have been initiated.” Ibid. Under these circumstances, 
+§1252(f)(1) poses no barrier to classwide injunctive relief. 
+The Government contends that the phrase “an individual 
+alien” is inconsistent with injunctive relief on a classwide 
+basis. A class action, however, is a collection of individual 
+claims. See, e. g., Califano v. Yamasaki, 442 U. S. 682, 701 
+(1979) (“Where the district court has jurisdiction over the 
+claim of each individual member of the class, Rule 23 pro­
+vides a procedure by which the court may exercise that juris­
+diction over the various individual claims in a single proceed­
+ing”); Shady Grove Orthopedic Associates, P. A. v. Allstate 
+Ins. Co., 559 U. S. 393, 408 (2010) (plurality opinion of Scalia, 
+J.) (“A class action, no less than traditional joinder (of which 
+it is a species), merely enables a federal court to adjudicate 
+claims of multiple parties at once, instead of in separate 
+suits”). Moreover, contextual and historical evidence dem­
+onstrates that the enacting Congress would not have prohib­
+ited classwide relief simply by using the word “individual.” 
+It was well understood when Congress enacted §1252(f)(1) 
+in 1996 that mere use of the word “individual” would not 
+preclude classwide adjudication or relief. In Califano, a 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+563 
+Opinion of Sotomayor, J. 
+unanimous Court interpreted § 205(g) of the Social Security 
+Act, codifed at 42 U. S. C. § 405(g), to permit class actions 
+and classwide relief, even though the statute provided only 
+that “ `[a]ny individual' ” could obtain judicial review. See 
+442 U. S., at 698–701. The Court rejected the Government's 
+argument that the word “individual” required “a case-by­
+case adjudication of claims under § 205(g) that is incompatible 
+with class relief.” Id., at 698–699. “[C]lass relief is consist­
+ent with the need for case-by-case adjudication,” the Court 
+noted, “at least so long as the membership of the class is 
+limited to those who meet the requirements of” the provi­
+sion. Id., at 701. 
+“We normally assume that, when Congress enacts stat­
+utes, it is aware of relevant judicial precedent.” Merck & 
+Co. v. Reynolds, 559 U. S. 633, 648 (2010). When §1252(f)(1) 
+was enacted in 1996, that precedent included both Califano 
+and the settled rule, discussed above, that a statute should 
+not be construed to displace a court's equitable authority ab­
+sent a clear command. Yet Congress provided no such com­
+mand against all classwide injunctive relief in §1252(f)(1). 
+Indeed, in other subsections of § 1252, Congress provided 
+precisely such a clear command. Section 1252(e)(1)(B), en­
+acted simultaneously with §1252(f)(1), explicitly divests fed­
+eral courts of authority to “certify a class under Rule 23 of 
+the Federal Rules of Civil Procedure” in certain cases. The 
+enacting Congress thus knew how to preclude classwide re­
+lief and did so in unmistakable terms when that was its in­
+tent. In §1252(f)(1), however, it made no mention of class 
+actions or Rule 23. Again, “ `it is generally presumed that 
+Congress acts intentionally and purposely in the disparate 
+inclusion or exclusion' ” of language, particularly where, 
+as here, it enacted the language as part of a unifed whole. 
+Nken, 556 U. S., at 430. 
+The Government responds that this reading of 
+§1252(f)(1)'s saving clause renders the word “individual” su­
+perfuous. “ `[S]ometimes the better overall reading of the 
+Page Proof Pending Publication
+
+564 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+statute contains some redundancy,' ” however, as Congress 
+may “emplo[y] a belt and suspenders approach” to ensure its 
+aims are met. Atlantic Richfeld Co. v. Christian, 590 U. S. 
+–––, –––, n. 5 (2020). Relevant here, parties other than indi­
+viduals in removal proceedings may bring immigration-
+related lawsuits. For example, prior to 1996, several organi­
+zations brought preenforcement challenges to immigration 
+statutes. See Brief for Respondents 55 (collecting exam­
+ples). In recent years, States, too, increasingly have sued 
+on behalf of their own interests. See, e. g., Biden v. Texas, 
+No. 21–954, now pending before the Court; Department of 
+Homeland Security v. Regents of Univ. of Cal., 591 U. S. ––– 
+(2020); United States v. Texas, 579 U. S. 547 (2016) (per cu­
+riam). In drafting §1252(f)(1), Congress had every reason 
+“to be doubly sure,” Barton v. Barr, 590 U. S. –––, ––– (2020), 
+that only individuals in removal proceedings and not other 
+entities would receive injunctive relief restraining the opera­
+tion of the specifed provisions of the INA. Additionally, the 
+Government's redundancy concern is particularly unpersua­
+sive because Congress used the adjective “individual” redun­
+dantly in other immigration-related provisions within Title 8. 
+See § 1446(a) (authorizing the Attorney General to waive in­
+vestigation of applicant for naturalization “in an individual 
+case or in such cases or classes of cases as may be designated 
+by him”); § 1601(4) (expressing concern that “individual 
+aliens,” prior to 1996, were “burden[ing] the public benefts 
+system”). 
+3 
+In sum, the courts below retained their equitable authority 
+to issue classwide injunctive relief for two independent rea­
+sons. First, the relief the District Courts issued did not 
+purport “to enjoin or restrain the operation of” any statute; 
+rather, the District Courts sought to enforce a statute and 
+enjoin what they deemed to be unlawful agency action. Sec­
+ond, and in any event, the injunctive relief issued below fell 
+within §1252(f)(1)'s saving clause because it concerned only 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+565 
+Opinion of Sotomayor, J. 
+the application of provisions of the INA to individual nonciti­
+zens in removal proceedings. 
+This interpretation is a reasonable one. Congress' ex­
+press and particular use of words in §1252(f)(1) protected 
+the specifed statutory provisions against restraint by lower 
+court injunctions, but evinced no quarrel with lower courts 
+ensuring that the Executive Branch complied with the com­
+mands in those provisions. In addition, Congress ensured 
+that this goal did not come at the expense of violating the 
+rights of noncitizens in removal proceedings. 
+B 
+The Court reaches a contrary result only by prioritizing 
+unavailing and largely atextual concerns. 
+1 
+Starting with the primary “enjoin or restrain the opera­
+tion of” clause, the Court accepts the Government's argu­
+ment that “the `operation of' the relevant statutes is best 
+understood to refer to the Government's efforts to enforce 
+or implement them.” Ante, at 550. Aside from ignoring 
+Congress' choice to restrict judicial review of “implementa­
+tion” in some subsections of § 1252 but not others, the Court 
+misapprehends how statutes operate. No doubt, “laws ordi­
+narily `work' or `function' . . . through the actions of offcials 
+or other persons who implement them.” Ante, at 549. 
+That proposition, however, only holds if those individuals 
+properly implement the relevant statute. An unlawful im­
+plementation of a statute is not the “work[ing]” or “function­
+[ing]” of the statute at all; it is simply unauthorized. Re­
+straining such action does not interfere with the operation 
+of the statute for purposes of §1252(f)(1). 
+Resisting this result, the Court offers a string cite of sev­
+eral inapt uses of “operation,” none of which concern the op­
+eration of legal authority. See ante, at 552. The Court 
+wonders why, “[i]f cars, trucks, railroads, water utilities, 
+Page Proof Pending Publication
+
+566 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+drainage ditches, auto dealerships, planes, radios, video 
+poker machines, cable TV systems, and many other things 
+can be unlawfully or improperly operated, . . . the same can­
+not be said of a statute.” Ante, at 552–553. The answer is 
+obvious: Unlike all of those examples, a statute is the law. 
+Offcials may implement a statute unlawfully, but a statute 
+does not operate in confict with itself.5 
+The Court also agrees with the Government that “enjoin,” 
+as used in §1252(f)(1), necessarily takes on both affrmative 
+and negative connotations, but only by rigidly segmenting 
+each word in the clause, defning each in isolation, and adding 
+those definitions together. See ante, at 548–549. Else­
+where, however, this Court has cautioned against such a 
+piecemeal approach to statutory interpretation. Cf., e. g., 
+FCC v. AT&T Inc., 562 U. S. 397, 406 (2011) (cautioning that 
+“two words together may assume a more particular meaning 
+than those words in isolation”). Moreover, the Court pays 
+no mind to Congress' other uses of “enjoin” in § 1252 and 
+elsewhere in Title 8 as meaning banning or stopping. 
+The Court offers one fnal purportedly textual basis for its 
+strained reading of the primary clause: that it is the only 
+option consistent with §1252(f)(1)'s prefatory clause. See 
+ante, at 553; §1252(f)(1) (“Regardless of the nature of the 
+action or claim . . . ”). The prefatory clause, however, does 
+not purport to expand the scope of §1252(f)(1)'s restriction; 
+it simply makes clear that the restriction must apply to all 
+claims that would otherwise fall within it, without exception. 
+See Atlantic Richfeld Co., 590 U. S., at –––, n. 5 (reasoning 
+similarly as to phrase “ `without regard to the citizenship of 
+the parties or the amount in controversy' ”). 
+5 The Court's sole response is to suggest that if an offcial can “ `carry out' ” 
+a statute contrary to its terms, the statute should be able to “ `operat[e]' ” 
+contrary to itself, too. Ante, at 553, n. 3. This once again elides the dis­
+tinction Congress drew in § 1252 between “implementation” and “opera­
+tion,” a difference that must be given meaning. See supra, at 559–560. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+567 
+Opinion of Sotomayor, J. 
+The Court closes with two policy arguments. It deems 
+it “most unlikely” that Congress would enact a statute that 
+disproportionately limits lower courts' authority to issue in­
+junctive relief to remedy constitutional claims, a result it con­
+tends would fow from respondents' reading. Ante, at 553. 
+This is in large part a problem of the Court's own making. 
+As explained, a proper interpretation of §1252(f)(1)'s saving 
+clause preserves lower courts' authority to issue injunctive 
+relief on constitutional claims, including on a classwide basis, 
+so long as all plaintiffs are individuals against whom removal 
+proceedings have been initiated. Moreover, even in pre­
+enforcement challenges brought by entities or by individ­
+uals not in removal proceedings, respondents' reading of 
+§1252(f)(1) does not prohibit injunctive relief exclusively as 
+to constitutional claims, but also as to claims that arise from 
+any statutes external to the covered INA provisions (for ex­
+ample, a claim that a covered provision violates the Religious 
+Freedom Restoration Act (RFRA)). See ante, at 553, n. 4. 
+The correct reading of §1252(f)(1) evenhandedly protects the 
+specifed INA provisions from all such external, preenforce­
+ment, lower court injunctions, whether on statutory or con­
+stitutional grounds, without shielding unlawful agency action 
+inconsistent with the specifed provisions. Whatever the 
+Court may think of the wisdom of that policy, it is a perfectly 
+plausible one. 
+The Court also worries that under this reading of 
+§1252(f)(1), the inquiry as to whether injunctive relief 
+is available may overlap with the merits of a claim that a 
+covered provision has been violated. Ante, at 554. The 
+Court is wrong to fnd “anything unusual about that conse­
+quence.” Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 351 
+(2011). Even as to the question of subject-matter jurisdic­
+tion (as opposed to the remedial authority at issue here), 
+“[t]he necessity of touching aspects of the merits . . . is a 
+familiar feature of litigation.” Id., at 351–352; accord, e. g., 
+Page Proof Pending Publication
+
+568 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+Perry v. Merit Systems Protection Bd., 582 U. S. 420, 434– 
+435 (2017) (“[T]he distinction between jurisdictional and 
+merits issues is not inevitably sharp, for the two inquiries 
+may overlap”). Any overlap may be substantial: Under the 
+Federal Tort Claims Act, for instance, “all elements of a mer­
+itorious claim are also jurisdictional.” Brownback v. King, 
+592 U. S. –––, ––– (2021).6 
+This concern, too, offers no justi­
+fcation for the Court's departure from ordinary meaning or 
+its disregard of clear contextual evidence contrary to its view. 
+2 
+The Court's arguments in support of its reading of the sav­
+ing clause fare little better. The Court opens with language 
+from past cases suggesting support for its interpretation. 
+See ante, at 550. None of the cases the Court quotes, how­
+ever, presented or decided the scope of §1252(f)(1)'s bar on 
+injunctive relief. 
+The Court next affords dispositive weight to its class-exclu­
+sive view of the word “individual” in §1252(f)(1). See ante, 
+at 550–551. The Court distinguishes Califano in a footnote, 
+asserting that §1252(f)(1)'s saving clause should be construed 
+narrowly because it is an exception to the primary clause. 
+See ante, at 555, n. 6. The point, however, is not that the stat­
+ute interpreted in Califano was identical to §1252(f)(1), but 
+that Califano established that a statute's mere use of the word 
+“individual” does not suffce to preclude classwide relief. 
+Moreover, the Court overlooks that it is §1252(f)(1)'s prima­
+ry clause (which divests lower courts of their “ `tradi­
+6 The Court states that respondents' reading of §1252(f)(1) will, in some 
+cases, cause a “complete overlap between a jurisdictional inquiry and the 
+merits of a claim.” Ante, at 554, n. 5. Once again, such an overlap is far 
+from unprecedented. Moreover, as the Court implicitly concedes, it will 
+not always be present. As explained, respondents' interpretation divests 
+the lower courts of authority to issue injunctive relief on external chal­
+lenges to the specifed provisions (e. g., a challenge to a specifed provision 
+based on RFRA or the Due Process Clause), regardless of the merits of 
+those challenges, unless the saving clause applies. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+569 
+Opinion of Sotomayor, J. 
+tional equitable authority' ”) that constitutes an exception 
+to the norm. McQuiggin, 569 U. S., at 397. The Court 
+ignores the clear-statement rule for such displacements 
+of courts' equitable jurisdiction. Califano and the clear-
+statement rule both instruct that Congress would not have 
+done so much so obliquely, particularly when it clearly 
+prohibited class relief in another subsection of the same 
+statute. 
+On the question of Congress' disparate inclusion and exclu­
+sion of language in § 1252 referring to class actions, the 
+Court declines to decide what it thinks. Taking one path, it 
+suggests that one should not “give much weight to this nega­
+tive inference.” Ante, at 555. But see Nken, 556 U. S., at 
+430–431 (giving weight to equivalent inference when inter­
+preting same statute). Taking another, the Court admits 
+that adhering to its holding might well “rule out efforts to 
+obtain any injunctive relief that applies to multiple named 
+plaintiffs (or perhaps even rule out injunctive relief in a law­
+suit brought by multiple named plaintiffs).” Ante, at 555. 
+That result, which would require separate remedial orders 
+or even separate lawsuits for family members asserting le­
+gally and factually identical claims based on joint immigra­
+tion applications or proceedings, is absurd. There is no con­
+ceivable beneft in requiring identical claims to be raised in 
+separate, duplicative actions. This bizarre outcome offers 
+further proof that the Court has erred. 
+III 
+The ramifcations of the Court's errors should not be ig­
+nored. Today's holding risks depriving many vulnerable 
+noncitizens of any meaningful opportunity to protect their 
+rights. 
+To understand why, consider the practical realities of the 
+removal and detention system. Noncitizens subjected to re­
+moval proceedings are disproportionately unlikely to be fa­
+miliar with the U. S. legal system or fuent in the English 
+Page Proof Pending Publication
+
+570 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+language. Even so, these individuals must navigate the Na­
+tion's labyrinthine immigration laws without entitlement to 
+appointed counsel or legal support. If they are detained, 
+like respondents here, they face particularly daunting hur­
+dles. On average, immigration detention facilities are lo­
+cated signifcantly farther away from detained individuals' 
+communities and court proceedings than criminal jails, mak­
+ing it extraordinarily diffcult to secure legal representation. 
+Even for those individuals who can locate and afford counsel 
+under these circumstances, such remote confnement im­
+pedes evidence gathering and communication with counsel. 
+After traveling (perhaps for hours) to meet with detained 
+clients, attorneys may be barred from doing so due to logisti­
+cal or administrative errors; legal phone calls, too, frequently 
+are nonconfdential, prohibitively costly, or otherwise un­
+available. Exacerbating these challenges, the Government 
+regularly transfers detained noncitizens between facilities, 
+often multiple times.7 
+It is one matter to expect noncitizens facing these obsta­
+cles to defend against their removal in immigration court. 
+It is another entirely to place upon each of them the added 
+burden of contesting systemic violations of their rights 
+through discrete, collateral, federal-court proceedings. In a 
+7 See, e. g., Brief for Former Immigration Judges et al. as Amici Curiae 
+8–14; Z. Manfredi & J. Meyers, Isolated and Unreachable: Contesting Un­
+constitutional Restrictions on Communication in Immigration Detention, 
+95 N. Y. U. L. Rev. 130, 139–145 (2020); E. Ryo & I. Peacock, A National 
+Study of Immigration Detention in the United States, 92 S. Cal. L. Rev. 
+1, 29, 37–41 (2018); I. Eagly & S. Shafer, A National Study of Access to 
+Counsel in Immigration Court, 164 U. Pa. L. Rev. 1, 30–36 (2015); P. Mar­
+kowitz et al., Accessing Justice: The Availability and Adequacy of Counsel 
+in Removal Proceedings, 33 Cardozo L. Rev. 357, 367–373 (2011); M. Tay­
+lor, Promoting Legal Representation for Detained Aliens: Litigation and 
+Administrative Reform, 29 Conn. L. Rev. 1647, 1670–1673 (1997); cf. De-
+more v. Kim, 538 U. S. 510, 554 (2003) (Souter, J., concurring in part and 
+dissenting in part) (explaining that immigration offcials “can detain, trans­
+fer, and isolate aliens away from their lawyers, witnesses, and evidence”). 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 543 (2022) 
+571 
+Opinion of Sotomayor, J. 
+great many cases, the inevitable consequence of barring 
+classwide injunctive relief will be that those violations will 
+go unremedied, except as to the few fortunate enough to af­
+ford competent collateral counsel or to secure vigorous 
+pro bono representation. The burdens will fall on those 
+least able to vindicate their rights, as well as the law frms 
+and nonproft organizations that will endeavor to assist as 
+many of these noncitizens as their capacity permits.8 
+If, somehow, a substantial number of noncitizens are able 
+to overcome these obstacles and fle separate federal lawsuits 
+against unlawful removal or detention policies, a different 
+problem will arise. Class litigation not only enables individ­
+ual class members to enforce their rights against powerful 
+actors, but also advances judicial economy by eliminating the 
+need for duplicative proceedings pertaining to each class 
+member. In contrast, the Court's overbroad reading of 
+§1252(f)(1) forces noncitizens facing unlawful detention, if 
+they are able, “to food district court dockets with individual 
+habeas actions raising materially indistinguishable claims 
+and requesting materially indistinguishable injunctive re­
+lief.” Brief for Retired Federal Judges as Amici Curiae 15. 
+There is no reason to think Congress intended either of these 
+untenable results. 
+In fairness, the Court's decision is not without limits. For 
+instance, the Court does not purport to hold that §1252(f)(1) 
+affects courts' ability to “hold unlawful and set aside agency 
+action, fndings, and conclusions” under the Administrative 
+Procedure Act. 5 U. S. C. § 706(2). No such claim is raised 
+here. In addition, the Court rightly does not embrace the 
+Government's eleventh-hour suggestion at oral argument to 
+8 It is no answer to say that other individuals similarly situated may 
+generate controlling precedent by pursuing their own claims. In the 
+months or years it may take to secure a published appellate ruling resolv­
+ing a pertinent legal issue, a great many noncitizens without meaningful 
+access to justice will suffer irreparable injury. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+572 
+GARLAND v. ALEMAN GONZALEZ 
+Opinion of Sotomayor, J. 
+hold that §1252(f)(1) bars even classwide declaratory relief,9 
+a suggestion that would (if accepted) leave many noncitizens 
+with no practical remedy whatsoever against clear violations 
+by the Executive Branch. 
+Even with these limits, however, the repercussions of to­
+day's decision will be grave. In view of the text and context 
+of §1252(f)(1), these repercussions offer yet more evidence 
+that the Court's interpretive effort has gone badly astray. 
+*
+*
+* 
+The essence of statutory interpretation is to review the 
+plain meaning of a provision in its context. The Court's 
+analysis, by violating several interpretive principles, ulti­
+mately fails in that endeavor. I respectfully dissent. 
+9 Although I reach no defnitive conclusion on this unpresented issue, it 
+is diffcult to square the Government's claim with the statute Congress 
+enacted. Section 1252(f)(1) limits lower courts' authority to “enjoin or 
+restrain,” whereas a declaratory judgment (unlike an injunction) “ `is not 
+ultimately coercive.' ” Steffel v. Thompson, 415 U. S. 452, 471 (1974). In 
+addition, §1252(f)(1) is titled “[l]imit on injunctive relief,” in contrast to 
+nearby §1252(e)(1)'s broader “[l]imitations on relief.” True to its title, 
+§ 1252(e)(1) expressly prohibits courts from “enter[ing] declaratory, injunc­
+tive, or other equitable relief” under certain circumstances, whereas 
+§1252(f)(1) makes no mention of declaratory relief. 
+Moreover, if (as the Court holds today) §1252(f)(1) bars classwide relief, 
+and (as the Government suggests) the provision affects both injunctive 
+and declaratory relief, it is hard to see how any class action could proceed, 
+as no relief would be available in the lower courts. That, in turn, would 
+prevent any such case from reaching this Court, rendering Congress' res­
+ervation of this Court's authority a nullity. See §1252(f)(1) (stripping au­
+thority from all courts “other than the Supreme Court”). 
+For these reasons and others, several Courts of Appeals have held that 
+§1252(f)(1) poses no bar to the issuance of declaratory relief. See Brito 
+v. Garland, 22 F. 4th 240, 250–252 (CA1 2021); Make The Road New York 
+v. Wolf, 962 F. 3d 612, 635 (CADC 2020); Alli v. Decker, 650 F. 3d 1007, 
+1010–1013 (CA3 2011); Rodriguez v. Hayes, 591 F. 3d 1105, 1119–1120 (CA9 
+2010). But see Hamama v. Adducci, 912 F. 3d 869, 880, n. 8 (CA6 2018) 
+(suggesting, but not holding, otherwise). 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 570, n. 7, line 8 from bottom: “Markovitz” is replaced with “Markowitz” 
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+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+KAVANAUGH, J., concurring 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A97 
+NETCHOICE, LLC v. LYNN FITCH, ATTORNEY 
+GENERAL OF MISSISSIPPI 
+ON APPLICATION TO VACATE STAY 
+[August 14, 2025] 
+The application to vacate stay presented to JUSTICE 
+ALITO and by him referred to the Court is denied.
+ JUSTICE KAVANAUGH, concurring in the denial of the 
+application to vacate stay. 
+I concur in the Court’s denial of NetChoice’s application
+for interim relief because NetChoice has not sufficiently
+demonstrated that the balance of harms and equities favors
+it at this time. See Response in Opposition 37–39. 
+To be clear, NetChoice has, in my view, demonstrated 
+that it is likely to succeed on the merits—namely, that
+enforcement of the Mississippi law would likely violate its 
+members’ First Amendment rights under this Court’s
+precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 
+(2024); Brown v. Entertainment Merchants Assn., 564 U. S. 
+786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 
+U. S. ___ (2025). Given those precedents, it is no surprise
+that the District Court in this case enjoined enforcement of
+the Mississippi law and that seven other Federal District 
+Courts have likewise enjoined enforcement of similar state 
+laws. 
+See No. 1:24–cv–170 (SD Miss., June 18, 2025); 
+NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (SD Ohio 
+2024); Computer & Communications Industry Assn. v. 
+Paxton, 747 F. Supp. 3d 1011 (WD Tex. 2024); NetChoice, 
+LLC v. Reyes, 748 F. Supp. 3d 1105 (Utah 2024); NetChoice, 
+LLC v. Bonta, 770 F. Supp. 3d 1164 (ND Cal. 2025); 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NETCHOICE, LLC v. FITCH 
+KAVANAUGH, J., concurring 
+NetChoice, LLC v. Griffin, No. 5:23–cv–5105 (WD Ark.,
+Mar. 31, 2025); Computer & Communications Industry 
+Assn. v. Uthmeier, ___ F. Supp. 3d ___, No. 4:24–cv–438 
+(ND Fla., June 3, 2025); NetChoice v. Carr, ___ F. Supp. 3d
+___, No. 1:25–cv–2422 (ND Ga., June 26, 2025).   
+In short, under this Court’s case law as it currently 
+stands, the Mississippi law is likely unconstitutional.
+Nonetheless, because NetChoice has not sufficiently
+demonstrated that the balance of harms and equities favors
+it at this time, I concur in the Court’s denial of the 
+application for interim relief. 
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+ 
+Cite as: 607 U. S. ____ (2025) 
+ALITO, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+SUSAN HUTSON v. UNITED STATES, ET AL. 
+ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
+STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 
+No. 24–1022. Decided November 17, 2025 
+The petition for a writ of certiorari is denied.  JUSTICE 
+GORSUCH would grant the petition for a writ of certiorari. 
+JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis­
+senting from the denial of certiorari. 
+I would have granted certiorari to terminate the
+longstanding and unlawful prison-building order at the cen­
+ter of this case. In 2019, the District Court ordered New 
+Orleans to construct a new facility for inmates with mental-
+health needs. Yet the Prison Litigation Reform Act of 1995
+(PLRA) specifically states that “[n]othing in this section 
+shall be construed to authorize the courts, in exercising
+their remedial powers, to order the construction of prisons.” 
+18 U. S. C. §3626(a)(1)(C).  If a court issued an injunction
+in violation of the PLRA, then a party “shall be entitled to 
+the immediate termination of any prospective relief.”
+§3626(b)(2); see Miller v. French, 530 U. S. 327, 331 (2000).
+Thus, because the prison-building injunction was illegal 
+from the beginning, the courts below should have termi­
+nated it. 
+The lower courts further erred by failing to terminate the
+injunction for a second, independent reason.  Even if an in­
+junction complied with the PLRA when it was issued, the 
+injunction “shall be terminable . . . 2 years after the date 
+the court granted or approved the prospective relief.” 
+§3626(b)(1)(A)(i). Here, the New Orleans sheriff filed a 
+“‘motion to terminate all orders regarding the construction 
+of the Phase III jail’” four years after the court granted the 
+injunction. App. to Pet. for Cert. 81a.  At that point, the 
+
+ 
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+2 
+HUTSON v. UNITED STATES 
+ALITO, J., dissenting 
+District Court could maintain the injunction only if it found 
+the injunction “remains necessary to correct a current and
+ongoing violation,” “extends no further than necessary,”
+and “is narrowly drawn and the least intrusive means to
+correct the violation.”  §3626(b)(3). There is a Circuit split 
+about which party bears the burden at this stage of the lit­
+igation.* But Fifth Circuit precedent places the burden on
+the party supporting the injunction—not the party seeking
+termination. Guajardo v. Texas Dept. of Crim. Justice, 363 
+F. 3d 392, 395–396 (2004) (per curiam). Here, the lower 
+courts did not hold the Government or private plaintiffs to
+their burden. Rather, the courts below denied the sheriff ’s 
+termination motion because it provided no “basis for the
+district court to grant it.”  Anderson v. Hutson, 114 F. 4th 
+408, 420 (CA5 2024). That gets the inquiry backwards. It 
+was not the sheriff ’s burden to provide a basis for termina­
+tion; it was the opposing parties’ burden to show a basis for 
+maintaining the injunction. 
+In short, the Fifth Circuit erroneously resolved an im­
+portant issue of federal law on which there is a Circuit split. 
+This case cried out for our review.  By failing to intervene, 
+we leave New Orleans to pay for the Fifth Circuit’s serious 
+errors. I respectfully dissent. 
+—————— 
+*Compare Balla v. Idaho, 29 F. 4th 1019, 1025 (CA9 2022) (“ ‘[T]he 
+burden is on the movant to demonstrate that there are no ongoing con­
+stitutional violations, that the relief ordered exceeds what is necessary 
+to correct an ongoing constitutional violation, or both’ ”), with Laaman v. 
+Warden, N. H. State Prison, 238 F. 3d 14, 20 (CA1 2001) (“[T]he burden
+remains on the plaintiffs to show that such violations persist”). 
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+PRELIMINARY PRINT 
+Volume 596 U. S. Part 2 
+Pages 880–891 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 21, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+880 
+OCTOBER TERM, 2021 
+Syllabus 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE 
+HEALTH BENEFIT PLAN et al. v. DAVITA 
+INC. et al. 
+certiorari to the united states court of appeals for 
+the sixth circuit 
+No. 20–1641. Argued March 1, 2022—Decided June 21, 2022 
+Petitioner Marietta Memorial Hospital Employee Health Beneft Plan is 
+an employer-sponsored group health plan that offers all of its partici­
+pants the same limited coverage for outpatient dialysis. Respondent 
+DaVita—a major provider of dialysis services—sued the Marietta Plan, 
+arguing that the Plan's limited coverage for outpatient dialysis violated 
+the Medicare Secondary Payer statute. The statute makes Medicare a 
+“secondary” payer to an individual's existing insurance plan for certain 
+medical services, including dialysis, when that plan already covers the 
+same services. 42 U. S. C. §§ 1395y(b)(1)(C), (2), (4). To prevent plans 
+from circumventing their primary-payer obligation for end-stage renal 
+disease treatment, the statute imposes two constraints relevant here. 
+First, a plan “may not differentiate in the benefts it provides between 
+individuals having end stage renal disease and other individuals covered 
+by such plan on the basis of the existence of end stage renal disease, the 
+need for renal dialysis, or in any other manner.” § 1395y(b)(1)(C)(ii). 
+Second, a plan “may not take into account that an individual is entitled 
+to or eligible for” Medicare due to end-stage renal disease. § 1395y(b) 
+(1)(C)(i); see § 426–1. The District Court dismissed DaVita's claims that 
+the Marietta Plan violated both statutory constraints. A divided panel 
+of the U. S. Court of Appeals for the Sixth Circuit reversed. Among 
+other things, the Court of Appeals ruled that the statute authorized 
+disparate-impact liability and that the limited payments for dialysis 
+treatment had a disparate impact on individuals with end-stage renal 
+disease. 
+Held: Section 1395y(b)(1)(C) does not authorize disparate-impact liability, 
+and the Marietta Plan's coverage terms for outpatient dialysis do not 
+violate § 1395y(b)(1)(C) because those terms apply uniformly to all cov­
+ered individuals. Pp. 885–888. 
+(a) Section 1395y(b)(1)(C)(ii) prohibits a plan from differentiating in 
+benefts between individuals with and without end-stage renal disease. 
+Because the Marietta Plan's terms apply uniformly to individuals with 
+and without end-stage renal disease, the Plan does not “differentiate in 
+the benefts it provides between individuals” with and without end­
+
+Cite as: 596 U. S. 880 (2022) 
+881 
+Syllabus 
+stage renal disease. DaVita argues that the statute authorizes liability 
+even when a plan limits benefts in a uniform way if the limitation on 
+benefts has a disparate impact on individuals with end-stage renal 
+disease. But the text of the statute cannot be read to encompass a 
+disparate-impact theory. The statutory provision simply coordinates 
+payments between group health plans and Medicare; the statute does 
+not dictate any particular level of dialysis coverage. Pp. 885–887. 
+(b) DaVita's contention that a plan that provides limited coverage for 
+outpatient dialysis impermissibly “take[s] into account” the Medicare 
+eligibility of plan participants with end-stage renal disease fails for the 
+same reason. Because the Marietta Plan provides the same outpatient 
+dialysis benefts to all Plan participants, whether or not a participant is 
+entitled to or eligible for Medicare, the Plan cannot be said to “take into 
+account” whether its participants are entitled to or eligible for Medicare. 
+Pp. 887–888. 
+978 F. 3d 326, reversed and remanded. 
+Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Thomas, Breyer, Alito, Gorsuch, and Barrett JJ., joined. 
+Kagan, J., fled an opinion dissenting in part, in which Sotomayor, J., 
+joined, post, p. 888. 
+John J. Kulewicz argued the cause for petitioners. With 
+him on the briefs were Rodney A. Holaday, Daniel E. 
+Shuey, Anthony Spina, Brent D. Craft, Emily E. St. Cyr, 
+William H. Prophater, Jr., and D. Wesley Newhouse. 
+Matthew Guarnieri argued the cause for the United 
+States as amicus curiae supporting reversal. With him on 
+the brief were Solicitor General Prelogar, Deputy Solicitor 
+General Kneedler, Deputy Assistant Attorney General Har­
+rington, and Daniel Tenny. 
+Seth P. Waxman argued the cause for respondents. With 
+him on the brief were David W. Ogden, Kelly P. Dunbar, Ari 
+Holtzblatt, Jeffrey S. Bucholtz, Matthew Leland, Marisa C. 
+Maleck, and Alexander Kazam.* 
+*Briefs of amici curiae urging reversal were fled for the Pacifc Health 
+Coalition et al. by John R. Christiansen and Mary L. Stoll; and for the 
+Self-Insurance Institute of America, Inc., by Christopher J. Walker. 
+Briefs of amici curiae urging affrmance were fled for Dialysis Patient 
+Citizens by Nicholas J. Nelson and Jackson Williams; for the Kidney 
+Page Proof Pending Publication
+
+882 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 
+BENEFIT PLAN v. DaVITA INC. 
+Opinion of the Court 
+Justice Kavanaugh delivered the opinion of the Court. 
+The question in this case is whether a group health plan 
+that provides limited benefts for outpatient dialysis—but 
+does so uniformly for all plan participants—violates the 
+Medicare Secondary Payer statute. We agree with peti­
+tioner Marietta and the United States as amicus curiae that 
+the answer is no. We therefore reverse the judgment of 
+the U. S. Court of Appeals for the Sixth Circuit and remand 
+the case for further proceedings consistent with this 
+opinion. 
+I 
+A 
+Medicare provides health insurance coverage for those 
+who are 65 or over, or are disabled. In 1972, Congress 
+extended Medicare coverage to individuals with end-stage 
+renal disease, regardless of age or disability. See Social Se­
+curity Amendments of 1972, § 299I, 86 Stat. 1463; 42 U. S. C. 
+§ 426–1. That beneft now covers hundreds of thousands of 
+Americans with end-stage renal disease. In the aggregate, 
+the costs of healthcare for individuals with end-stage renal 
+disease are high, and Medicare spends about $50 billion annu­
+ally on treatments for those individuals. 
+During the initial years of the Medicare program after its 
+enactment in 1965, Medicare acted as the frst payer for 
+many medical services, regardless of whether a Medicare 
+benefciary was also covered under another insurance plan, 
+such as an employer-sponsored group health plan. In 1980 
+and 1981, in part due to rising Medicare costs, Congress 
+enacted and amended the Medicare Secondary Payer statute. 
+That statute as amended makes Medicare a “secondary” 
+Care Council et al. by Michael E. Bern; for Kidney Care Partners by Paul 
+W. Hughes; for the National Association for the Advancement of Colored 
+People by Carter G. Phillips, Kwaku A. Akowuah, and Christopher A. 
+Eiswerth; for Thomas A. Scully by James F. Bennett; and for Congressman 
+William Thomas by Misha Tseytlin. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 880 (2022) 
+883 
+Opinion of the Court 
+payer to an individual's existing insurance plan for certain 
+medical services, including dialysis, when that plan already 
+covers the same services. 
+See Medicare and Medicaid 
+Amendments of 1980, § 953, 94 Stat. 2647; Medicare and Med­
+icaid Amendments of 1981, § 2146, 95 Stat. 800; 42 
+U. S. C. §§ 1395y(b)(1)(C), (2), (4). 
+Given the signifcant costs of healthcare for those with 
+end-stage renal disease, Congress recognized that a plan 
+might try to circumvent the statute's primary-payer obliga­
+tion by denying or reducing coverage for an individual who 
+has end-stage renal disease, thereby forcing Medicare to 
+incur more of those costs. To prevent such circumvention, 
+the statute imposed two specifc constraints on group health 
+plans. First, a plan “may not differentiate in the benefts it 
+provides between individuals having end stage renal disease 
+and other individuals covered by such plan on the basis of 
+the existence of end stage renal disease, the need for renal 
+dialysis, or in any other manner.” § 1395y(b)(1)(C)(ii). Sec­
+ond, as relevant here, a plan “may not take into account that 
+an individual is entitled to or eligible for” Medicare due to 
+end-stage renal disease. § 1395y(b)(1)(C)(i); see § 426−1. 
+B 
+DaVita is one of the two major dialysis providers in the 
+United States. DaVita provides dialysis to hundreds of 
+thousands of individuals each year, including individuals in­
+sured by their employers' group health plans. 
+The Marietta Memorial Hospital Employee Health Beneft 
+Plan is an employer-sponsored group health plan. The Plan 
+offers the same terms of coverage for outpatient dialysis to 
+all of its participants. But under the Plan, outpatient dial­
+ysis services are subject to relatively limited reimburse­
+ment rates. 
+In 2018, DaVita sued the Plan, arguing that the Plan's lim­
+ited coverage for outpatient dialysis both (i) differentiates 
+between individuals with and without end-stage renal dis­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+884 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 
+BENEFIT PLAN v. DaVITA INC. 
+Opinion of the Court 
+ease and (ii) takes into account the Medicare eligibility of 
+individuals with end-stage renal disease in violation of the 
+Medicare Secondary Payer statute. § 1395y(b)(1)(C). 
+The District Court dismissed DaVita's claims, concluding 
+that the Plan does not violate the anti-differentiation or take­
+into-account provisions of the Medicare Secondary Payer 
+statute because the Plan's terms, including its terms for 
+outpatient dialysis treatments, apply uniformly to all Plan 
+participants. 
+A divided panel of the U. S. Court of Appeals for the Sixth 
+Circuit reversed. See 978 F. 3d 326 (2020). Among other 
+things, the Court of Appeals ruled that the statute author­
+ized disparate-impact liability, and the Court concluded that 
+the limited payments for dialysis treatment had a disparate 
+impact on individuals with end-stage renal disease. 
+Judge Eric Murphy dissented in relevant part. He rea­
+soned that the Plan's terms do not violate the statute be­
+cause the Plan “offers the same benefts to all participants.” 
+Id., at 358 (opinion concurring in judgment in part and dis­
+senting in part). 
+The Sixth Circuit's interpretation of the Medicare Second­
+ary Payer statute departed from the holdings of district 
+courts that had considered the question. See DaVita, Inc. 
+v. Amy's Kitchen, Inc., 379 F. Supp. 3d 960 (ND Cal. 2019); 
+Dialysis of Des Moines, LLC v. Smithfeld Foods Healthcare 
+Plan, 2019 WL 8892581 (ED Va., Aug. 5, 2019); National 
+Renal Alliance, LLC v. Blue Cross & Blue Shield of Geor­
+gia, Inc., 598 F. Supp. 2d 1344 (ND Ga. 2009). Moreover, 
+several weeks after the Sixth Circuit's decision, the Ninth 
+Circuit agreed with Judge Murphy's dissent and largely re­
+jected the Sixth Circuit's analysis. See DaVita Inc. v. 
+Amy's Kitchen, Inc., 981 F. 3d 664 (2020). 
+This Court granted certiorari to resolve the dis­
+agreement between the Courts of Appeals. 595 U. S. ––– 
+(2021). 
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 880 (2022) 
+885 
+Opinion of the Court 
+II 
+A 
+We frst consider DaVita's differentiation argument. To 
+reiterate, the relevant statutory provision states: A plan 
+“may not differentiate in the benefts it provides between 
+individuals having end stage renal disease and other individ­
+uals covered by such plan on the basis of the existence of end 
+stage renal disease, the need for renal dialysis, or in any 
+other manner.” 42 U. S. C. § 1395y(b)(1)(C)(ii). 
+That statutory language prohibits a plan from differenti­
+ating in benefts between individuals with and without end-
+stage renal disease. For example, a group health plan may 
+not single out plan participants with end-stage renal disease 
+by imposing higher deductibles on them, or by covering 
+fewer services for them. See 42 CFR §§ 411.161(b)(2)(i)– 
+(iv). If a plan does not differentiate in the benefts provided 
+to individuals with and without end-stage renal disease, then 
+a plan has not violated that statutory provision, and the dif­
+ferentiation inquiry ends there.1 
+The Marietta Plan provides the same benefts, including 
+the same outpatient dialysis benefts, to individuals with and 
+without end-stage renal disease. Indeed, DaVita does not 
+dispute that the Plan's terms apply uniformly to all Plan par­
+ticipants. Therefore, the Plan does not “differentiate in the 
+1 If and only if a plan differentiates in benefts between those with and 
+those without end-stage renal disease, the next question would be whether 
+the plan differentiates “on the basis of” (i) the existence of the disease, 
+(ii) the need for renal dialysis, or (iii) in any other manner. 42 
+U. S. C. § 1395y(b)(1)(C)(ii). Those three circumstances, especially the 
+somewhat ungrammatically phrased catchall “in any other manner,” ap­
+pear to cover the waterfront of possible bases on which a plan might differ­
+entiate in the benefts provided to those with end-stage renal disease. In 
+other words, if there is differentiation, the differentiation is likely on an 
+impermissible basis. Therefore, the only meaningful question under this 
+statutory provision appears to be whether the plan differentiates in bene­
+fts between those with and those without end-stage renal disease. 
+
+886 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 
+BENEFIT PLAN v. DaVITA INC. 
+Opinion of the Court 
+benefts it provides between individuals” with and without 
+end-stage renal disease. 42 U. S. C. § 1395y(b)(1)(C)(ii). 
+In response, DaVita primarily argues that the statute au­
+thorizes liability even when a plan limits benefts in a uni­
+form way if the limitation on benefts has a disparate impact 
+on individuals with end-stage renal disease. 
+To begin with, the text of the statute cannot be read to 
+encompass a disparate-impact theory. That text requires 
+inquiry into whether a plan provides different benefts to 
+(i) those with end-stage renal disease and (ii) those without 
+end-stage renal disease. The text does not ask about “the 
+effects of non-differentiating plan terms that treat all indi­
+viduals equally.” 978 F. 3d, at 363 (opinion of Murphy, J.); 
+see also Amy's Kitchen, 981 F. 3d, at 674−675. In light of 
+that plain text, it comes as no surprise that the Centers 
+for Medicare and Medicaid Services have never adopted a 
+disparate-impact theory in their longstanding regulations 
+implementing this statute. 
+The disparate-impact theory not only is atextual but also 
+would be all but impossible to fairly implement. The prem­
+ise of the disparate-impact theory is that the plan's benefts 
+for outpatient dialysis are inadequate. But what level of 
+benefts would be adequate, and how would courts determine 
+the level of benefts that qualifes as adequate? 
+Neither the statute nor DaVita offers a basis for determin­
+ing when coverage for outpatient dialysis could be consid­
+ered inadequate. And neither the statute nor DaVita sup­
+plies an objective benchmark or comparator against which to 
+measure a plan's coverage for outpatient dialysis. 
+Absent some benchmark or comparator, courts would have 
+great diffculty trying to make an apples-to-apples compari­
+son of a plan's coverage for outpatient dialysis against its 
+coverage for other services. Group health plans cover serv­
+ices for many different health issues at varied rates. Those 
+rates may refect negotiations with third parties, the needs 
+of a particular plan's benefciaries, and other factors such as 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 880 (2022) 
+887 
+Opinion of the Court 
+geography. Courts would be entirely at sea in trying to de­
+termine an appropriate benchmark or comparator for out­
+patient dialysis. Put simply, DaVita's approach is a pre­
+scription for judicial and administrative chaos, and further 
+demonstrates that DaVita's disparate-impact theory is not a 
+correct interpretation of the statute.2 
+DaVita's position would ultimately require group health 
+plans to maintain some (undefned) minimum level of benefts 
+for outpatient dialysis. But this statutory provision simply 
+coordinates payments between group health plans and Medi­
+care. As the Government itself acknowledges, the statute 
+does not dictate any particular level of dialysis coverage by 
+a group health plan. See Brief for United States as Amicus 
+Curiae 13. If Congress wanted to mandate that group 
+health plans provide particular benefts, or to require that 
+group health plans ensure parity between different kinds of 
+benefts, Congress knew how to write such a law. It did not 
+do so in this statute. To the extent that Congress wants to 
+create such a system going forward, Congress of course may 
+do so. 
+In sum, the Marietta Plan does not “differentiate in the 
+benefts it provides” to those with end-stage renal disease 
+and those without end-stage renal disease. 
+B 
+DaVita also contends that a plan that provides limited cov­
+erage for outpatient dialysis impermissibly “take[s] into ac­
+2 DaVita's related proxy theory—that singling out outpatient dialysis is 
+simply a proxy for singling out individuals with end-stage renal disease 
+because those individuals disproportionately receive outpatient dialysis— 
+likewise fnds no support in the statutory text. The statute requires 
+that a plan provide the same dialysis benefts regardless of whether an 
+individual has end-stage renal disease. If a plan provides the same bene­
+fts to all individuals, the plan does not “differentiate in the benefts it 
+provides” to individuals with and without end-stage renal disease. 
+§ 1395y(b)(1)(C)(ii) (emphasis added). This statute is a coordination-of­
+benefts statute, not a traditional antidiscrimination statute. 
+Page Proof Pending Publication
+
+888 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 
+BENEFIT PLAN v. DaVITA INC. 
+Kagan, J., dissenting in part 
+count” the Medicare eligibility of plan participants with end-
+stage renal disease in violation of the statute. To reiterate, 
+that statutory provision states that a plan “may not take 
+into account that an individual is entitled to or eligible for” 
+Medicare. 42 U. S. C. § 1395y(b)(1)(C)(i); see also § 426–1. 
+For example, a plan may not terminate coverage, limit cover­
+age, or charge higher premiums for an individual who has 
+Medicare coverage due to end-stage renal disease. See 42 
+CFR §§ 411.108(a)(3), (5)−(6). 
+As already discussed, the Marietta Plan's terms, including 
+its terms of coverage for outpatient dialysis, are uniform for 
+all individuals. Because the Plan provides the same outpa­
+tient dialysis benefts to all Plan participants, whether or not 
+a participant is entitled to or eligible for Medicare, the Plan 
+cannot be said to “take into account” whether its participants 
+are entitled to or eligible for Medicare. 
+*
+*
+* 
+Because the Marietta Plan's terms as relevant here apply 
+uniformly to all covered individuals, the Plan does not “dif­
+ferentiate in the benefts it provides” to individuals with end-
+stage renal disease or “take into account” whether an indi­
+vidual is entitled to or eligible for Medicare. We therefore 
+reverse the judgment of the U. S. Court of Appeals for the 
+Sixth Circuit and remand the case for further proceedings 
+consistent with this opinion. 
+It is so ordered. 
+Justice Kagan, with whom Justice Sotomayor joins, 
+dissenting in part. 
+Today the Court crafts for the Medicare Secondary Payer 
+Act (MSPA) a massive and inexplicable workaround. The 
+MSPA instructs that a group health plan “may not differenti­
+ate in the benefts it provides between individuals having 
+end stage renal disease and other individuals covered by 
+such plan on the basis of the existence of end stage renal 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 880 (2022) 
+889 
+Kagan, J., dissenting in part 
+disease, the need for renal dialysis, or in any other manner.” 
+42 U. S. C. § 1395y(b)(1)(C)(ii). The majority holds that the 
+plan here does not so “differentiate” because it draws distinc­
+tions only between dialysis and other treatments—not be­
+tween individuals with end stage renal disease and individu­
+als without it. See ante, at 887, n. 2. That conclusion fies 
+in the face of both common sense and the statutory 
+text.* 
+One fact is key to understanding this case: Outpatient dial­
+ysis is an almost perfect proxy for end stage renal disease. 
+Virtually everyone with end stage renal disease—and hardly 
+anyone else—undergoes outpatient dialysis. Ninety-seven 
+percent of people diagnosed with end stage renal disease— 
+all those who do not obtain a preemptive kidney transplant— 
+undergo dialysis. See National Institutes of Health, United 
+States Renal Data System, 2021 Ann. Data Rep.: End Stage 
+Renal Disease, ch. 1, fgure 1.2, https://adr.usrds.org/2021/ 
+end-stage-renal-disease. And 99.5% of DaVita's outpatient 
+dialysis patients have or develop end stage renal disease. 
+See Brief for Respondents 6. 
+Because that is so, common sense suggests that we should 
+not care whether a health plan differentiates in benefts by 
+targeting people with end stage renal disease, or instead by 
+targeting the use of dialysis. When “status and conduct” 
+are proxies for each other, “[o]ur decisions have declined to 
+distinguish” between them. Christian Legal Soc. Chapter 
+of Univ. of Cal., Hastings College of Law v. Martinez, 561 
+U. S. 661, 689 (2010). So, for example, we have explained 
+that a penalty for “homosexual conduct” is a penalty for “ho­
+mosexual persons.” Lawrence v. Texas, 539 U. S. 558, 575 
+(2003). And likewise, a “tax on wearing yarmulkes is a tax 
+*Like the majority, I am unpersuaded by DaVita's arguments concern­
+ing disparate-impact liability and the MSPA's separate take-into-account 
+clause. See ante, at 886–888. But I part ways with the majority as to 
+DaVita's “proxy” theory (which the majority relegates to a footnote). See 
+ante, at 887, n. 2. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+890 
+MARIETTA MEMORIAL HOSPITAL EMPLOYEE HEALTH 
+BENEFIT PLAN v. DaVITA INC. 
+Kagan, J., dissenting in part 
+on Jews.” Bray v. Alexandria Women's Health Clinic, 506 
+U. S. 263, 270 (1993). The same goes here: A reimburse­
+ment limit for outpatient dialysis is in reality a reimburse­
+ment limit for people with end stage renal disease. And so 
+a plan singling out dialysis for disfavored coverage “differen­
+tiate[s] in the benefits it provides between individuals 
+having end stage renal disease and other individuals.” 
+§ 1395y(b)(1)(C)(ii). That is so even if, as petitioner Marietta 
+notes, dialysis is also a treatment for some miniscule number 
+of people with acute kidney injury. See Reply Brief 13. 
+That a proxy is only 99.5% (not 100%) accurate should make 
+no difference. A tax on yarmulkes remains a tax on Jews, 
+even if friends of other faiths might occasionally don one at 
+a Bar Mitzvah. 
+And if common sense were not enough, statutory text 
+would come to the rescue. Congress was well aware of the 
+relationship between end stage renal disease and dialysis— 
+and the text it wrote refects that knowledge. The statute 
+proscribes not just differentiation “on the basis of the exist­
+ence of end stage renal disease,” but also “on the basis of 
+. . . the need for renal dialysis, or in any other manner.” 
+§ 1395y(b)(1)(C)(ii). The back half of that provision prevents 
+exactly the circumvention the majority today allows. It 
+bars plans from differentiating between people with and 
+without end stage renal disease even when that differentia­
+tion is accomplished indirectly—by targeting their treat­
+ment, or by relying on some other proxy for the condition. 
+So contra the majority, the statutory text does indeed pro­
+hibit differentiation as to services—and not only as to indi­
+viduals. See ante, at 887, n. 2. 
+That reading also fts with the statute's purpose. As the 
+majority recognizes, the MSPA's renal disease provisions 
+were designed to prevent plans from foisting the cost of dial­
+ysis onto Medicare. See ante, at 883. Yet the Court now 
+tells plans they can do just that, so long as they target dial­
+ysis, rather than the patients who rely on it, for disfavored 
+
+Cite as: 596 U. S. 880 (2022) 
+891 
+Kagan, J., dissenting in part 
+coverage. Congress would not—and did not—craft a stat­
+ute permitting such a maneuver. Now Congress will have 
+to fix a statute this Court has broken. 
+I respectfully 
+dissent. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+Erratum: From three congregations to one autonomous church: The Swaziland Reformed Church
+
+HTS Teologiese Studies/Theological Studies is an acclaimed journal with broad coverage that promotes multidisciplinary, religious, and biblical aspects of studies in the international theological arena. The journal’s publication criteria are based on high ethical standards and the rigor of the methodology and conclusions reported.
+
+http://www.hts.org.za
+Open Access
+HTS Teologiese Studies/Theological Studies 
+ISSN: (Online) 2072-8050, (Print) 0259-9422
+Page 1 of 1
+Correction
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Author: 
+Arnau van Wyngaard1 
+Affiliation: 
+1Department of Science of 
+Religion and Missiology, 
+University of Pretoria, 
+Pretoria, South Africa
+Corresponding author: 
+Arnau van Wyngaard, 
+wyngaard@lando.co.za
+Dates: 
+Published: 20 Oct. 2021
+How to cite this article: 
+Van Wyngaard, A., 2021, 
+‘Erratum: From three 
+congregations to one 
+autonomous church: The 
+Swaziland Reformed Church’, 
+HTS Teologiese Studies/
+Theological Studies 77(1), 
+a6992. https://doi.org/​
+10.4102/hts.v77i1.6992
+Copyright:
+© 2021. The Authors. 
+Licensee: AOSIS. This work 
+is licensed under the 
+Creative Commons 
+Attribution License.
+In the version of the article initially published, Van Wyngaard, A., 2018, ‘From three congregations 
+to one autonomous church: The Swaziland Reformed Church’, HTS Teologiese Studies/Theological 
+Studies 74(1), 4922. https://doi.org/10.4102/hts.v74i1.4922, the word moderature was misspelled. 
+The correct spelling of the word should be moderature instead of modarature throughout the 
+article. 
+This correction does not alter the study’s findings of significance or overall interpretation of the 
+study’s results. The publisher apologises for any inconvenience caused.
+Erratum: From three congregations to one autonomous 
+church: The Swaziland Reformed Church
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Note: DOI of original article published: https://doi.org/10.4102/hts.v74i1.4922
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+PRELIMINARY PRINT 
+Volume 608 U. S. Part 2 
+Pages 380–390 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 28, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+380 
+OCTOBER TERM, 2025 
+Syllabus 
+FLOWERS FOODS, INC., et al. v. BROCK 
+certiorari to the united states court of appeals for 
+the tenth circuit 
+No. 24–935. Argued March 25, 2026—Decided May 28, 2026 
+The Federal Arbitration Act (FAA) requires courts to enforce many pri­
+vate arbitration agreements, but it also provides that “nothing” in the 
+law shall be used to compel arbitration in disputes involving the “con­
+tracts of employment” of any class of workers “engaged in . . . interstate 
+commerce.” 9 U. S. C. §1. This case poses the question whether some­
+one can qualify as a worker under the § 1 exemption if he never crosses 
+state lines and never interacts with vehicles that do. Flowers Foods, 
+Inc., is a large producer of packaged baked goods with bakeries in 19 
+States. To get its products to market, the company depends in part on 
+franchisees who buy the distribution rights to Flowers's products in 
+specifc geographic territories. Angelo Brock is one such franchisee 
+serving the Denver area; he picks up Flowers's products from a ware­
+house in Colorado and delivers them to local stores, all without leaving 
+the State. In 2022, Brock sued Flowers in federal district court alleg­
+ing that the company had underpaid him and other distributors in viola­
+tion of various federal and state laws. Flowers moved to compel arbi­
+tration, arguing that the FAA generally requires courts to stay or 
+dismiss cases when the parties have agreed to resolve their disputes by 
+arbitration and that Brock had signed a distribution agreement promis­
+ing to arbitrate any disagreement. The district court denied Flowers's 
+motion, and the Tenth Circuit affrmed. Resting its decision on 9 
+U. S. C. § 1, the Tenth Circuit reasoned that Brock belonged to a class 
+of workers engaged in interstate commerce and thus the court lacked 
+authority to compel arbitration. 
+Held: A worker who transports goods on an intrastate leg of an interstate 
+journey can qualify for § 1's exemption without crossing state lines or 
+interacting with vehicles that do. Pp. 385–390. 
+(a) The statutory text does not support a rule requiring workers to 
+cross state lines or interact with vehicles that do. When the FAA was 
+enacted, to “engage” meant to “take part in” something or to be “em­
+ploy[ed]” or “involve[d]” in that thing. Black's Law Dictionary 661. 
+And “interstate commerce” meant “[t]raffc,” “intercourse,” or “the 
+transportation of persons or property between or among the several 
+states . . . or from or between points in one state and points in another 
+state.” Id., at 1001. Nothing in those terms requires an individual to 
+
+Cite as: 608 U. S. 380 (2026) 
+381 
+Syllabus 
+cross state lines or interact with a vehicle that does. Interstate com­
+merce includes transporting products “between points in one state and 
+points in another state,” ibid., which involves not just crossing state 
+lines but intrastate activity too; “a continuous carriage” may begin in 
+one State and end in another while “much of the journey” takes place 
+“within the limits of a single state,” Cyclopedic Law Dictionary 548. 
+And at least sometimes, a person can take part, be employed, or be 
+involved in that continuous journey without leaving a State or touching 
+vehicles that do. Pp. 385–387. 
+(b) Historical precedent supports this interpretation. In The Daniel 
+Ball, 10 Wall. 557, the Court held that a steamer transporting goods 
+entirely within Michigan was “engaged in commerce between the 
+States” because it “was employed in transporting goods destined for 
+other States, or goods brought from without . . . Michigan.” Id., at 
+565. The Court explained that “[t]he fact that several different and 
+independent agencies are employed in transporting the commodity, 
+some acting entirely in one State, and some acting through two or more 
+States, does in no respect affect the character of the transaction.” Ibid. 
+Other cases are to similar effect. See, e. g., Rearick v. Pennsylvania, 
+203 U. S. 507; Rhodes v. Iowa, 170 U. S. 412; Norfolk & Western R. Co. 
+v. Pennsylvania, 136 U. S. 114. Pp. 387–388. 
+(c) Flowers's counterarguments are unavailing. Flowers observes 
+that the cases above interpreted the Constitution's Commerce Clause, 
+not § 1 of the FAA. The Court does not suggest that the scope of § 1 is 
+coterminous with the scope of the Commerce Clause as interpreted at 
+the time of the FAA's adoption in 1925. However, cases using the same 
+language as § 1, or formulations very close to it, offer probative evidence 
+of what an ordinary person at the time of the FAA's enactment would 
+have understood its terms to mean. 
+Flowers hints at other reasons why Brock might not qualify for § 1's 
+exemption, including that Flowers conducts its business with Brock 
+through a distribution agreement with an independently operated com­
+pany Brock owns, and that he orders and purchases Flowers's goods, 
+taking title to them, before selling them to local stores—facts that some 
+lower courts have found relevant. However, while Flowers discusses 
+these facts in passing, it does not ask the Court to decide their legal 
+signifcance, instead venturing all upon one cast by asking the Court to 
+adopt a bright-line rule that an individual can never qualify for § 1's 
+exemption unless he crosses state lines or interacts with vehicles that 
+do. The statutory text cannot support such a rule. Pp. 388–390. 
+121 F. 4th 753, affrmed. 
+Gorsuch, J., delivered the opinion for a unanimous Court. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+382 
+FLOWERS FOODS, INC. v. BROCK 
+Counsel 
+Traci L. Lovitt argued the cause for petitioners. With 
+her on the briefs were John Brinkerhoff, Amanda K. Rice, 
+David K. Suska, Matthew J. Rubenstein, and Kevin 
+P. Hishta. 
+Jennifer Bennett argued the cause for respondent. With 
+her on the brief were Hannah Kieschnick, Matthew Guar­
+nieri, Jessica Garland, Craig M. Nicholas, Alex Tomasevic, 
+and Shaun Markley.* 
+*Briefs of amici curiae urging reversal were fled for the State of Mis­
+souri et al. by Catherine L. Hanaway, Attorney General of Missouri, 
+Louis J. Capozzi III, Solicitor General, and Ryan Dugan, Assistant Solici­
+tor General, and by the Attorneys General for their respective States as 
+follows: Stephen J. Cox of Alaska, Tim Griffn of Arkansas, Austin Knud­
+sen of Montana, and Ken Paxton of Texas; for Amazon.com, Inc., by Mi­
+chael E. Kenneally; for the California Employment Law Council by Paul 
+Grossman, Chris A. Jalian, and Sean D. Unger; for the Chamber of Com­
+merce of the United States of America et al. by Archis A. Parasharami, 
+Daniel E. Jones, Jennifer B. Dickey, Jonathan D. Urick, Monica Welt, 
+Joshua Moore, Karen R. Harned, Erika Klenicki, Elizabeth Gaudio Mil­
+ito, and Patrick J. Moran; for the DRI Center for Law and Public Policy 
+et al. by Sarah Elizabeth Spencer and Lawrence S. Ebner; for the Inde­
+pendent Bakers Association et al. by Thomas G. Hungar, Russell B. Bali­
+kian, and Cameron J. E. Pritchett; for Menzies Aviation, Inc., by Christo­
+pher Ward and John FizGerald; for the Pioneer New England Legal 
+Foundation by Benjamin G. Robbins and Frank J. Bailey; and for the 
+Washington Legal Foundation by Cory L. Andrews and Zac Morgan. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Illinois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor 
+Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, and 
+R. Henry Weaver and Brianna Yang, Assistant Attorneys General, by 
+Jennifer Davenport, Acting Attorney General of New Jersey, and by the 
+Attorneys General for their respective jurisdictions as follows: Rob Bonta 
+of California, Philip J. Weiser of Colorado, Kathleen Jennings of Dela­
+ware, Brian L. Schwalb of the District of Columbia, Aaron M. Frey of 
+Maine, Anthony G. Brown of Maryland, Andrea Joy Campbell of Massa­
+chusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Letitia 
+James of New York, Dan Rayfeld of Oregon, Peter F. Neronha of Rhode 
+Island, and Charity R. Clark of Vermont; for AARP et al. by Louis Lopez, 
+William Alvarado Rivera, and Dean Graybill; for the American Federa­
+tion of Labor and Congress of Industrial Organizations by Matthew 
+
+Cite as: 608 U. S. 380 (2026) 
+383 
+Opinion of the Court 
+Justice Gorsuch delivered the opinion of the Court. 
+The Federal Arbitration Act requires courts to enforce 
+many private arbitration agreements. But not all. Section 
+1 of the Act provides that “nothing” in the law shall be used 
+to compel arbitration in disputes involving the “contracts of 
+employment” of any class of workers “engaged in . . . inter­
+state commerce.” 9 U. S. C. § 1. This case is the latest in a 
+line posing questions about the scope of that exemption. 
+I 
+Flowers Foods, Inc., is one of the Nation's largest produc­
+ers of packaged baked goods. Some of its familiar products 
+include Butterscotch Krimpets, Jumbo Honey Buns, and 
+Wonder Bread, “which it promotes with a 95-foot-tall hot air 
+balloon and a parade foat called The Wondership.” Bisson­
+nette v. LePage Bakeries Park St., LLC, 601 U. S. 246, 249 
+(2024). From its bakeries in 19 States, Flowers distributes 
+its products across the country. 
+To get its products to market, the company depends in 
+part on franchisees who “buy the rights to distribute Flow­
+ers['s] products in particular geographic territories.” Ibid. 
+This case involves one such franchisee, Angelo Brock, who 
+serves the Denver area. Brock picks up Flowers's products 
+from a warehouse in Colorado and delivers them to local 
+stores, all without leaving the State. 
+In 2022, Brock sued Flowers in federal district court alleg­
+ing that the company had underpaid him and other distribu-
+J. Ginsburg and Darin M. Dalmat; for the Constitutional Accountability 
+Center by Elizabeth B. Wydra and Brianne J. Gorod; for the National 
+Employment Law Project by Catherine Ruckelshaus, Harold L. Lichten, 
+Shannon Liss-Riordan, and Matthew Thomson; and for Professors and 
+Scholars of Linguistics and Law by Peter Romer-Friedman. 
+Briefs of amici curiae were fled for the Coalition for Workforce Innova­
+tion by Alex T. MacDonald; for the National Academy of Arbitrators by 
+Barry Winograd and Joshua M. Javits; and for Public Justice et al. by 
+Shelby Leighton, Leah M. Nicholls, Sachin S. Pandya, Bruce Plaxen, and 
+Jeffrey R. White. 
+Page Proof Pending Publication
+
+384 
+FLOWERS FOODS, INC. v. BROCK 
+Opinion of the Court 
+tors in violation of various federal and state laws. In re­
+sponse, Flowers fled a motion asking the court to send the 
+dispute to arbitration. In support of its motion, Flowers ob­
+served that the Federal Arbitration Act (FAA) generally re­
+quires courts to stay or dismiss cases when the parties have 
+agreed to resolve their disputes by arbitration rather than 
+litigation. And Flowers argued that rule applied here be­
+cause Brock had signed a distribution agreement promising 
+to arbitrate any disagreement that might arise between him­
+self and Flowers. Ultimately, the district court denied 
+Flowers's motion and, in an opinion by Judge Phillips, the 
+Tenth Circuit affrmed. 
+The Tenth Circuit rested its decision on 9 U. S. C. § 1. 
+While the FAA requires courts to enforce arbitration agree­
+ments in many circumstances, § 1 contains an exception. It 
+provides that “nothing” in the statute shall be used to com­
+pel arbitration in disputes involving “contracts of employ­
+ment of seamen, railroad employees, or any other class of 
+workers engaged in foreign or interstate commerce.” § 1. 
+Reasoning that Brock belonged to a class of workers engaged 
+in interstate commerce, the court concluded that it lacked 
+authority to compel the arbitration Flowers sought. To be 
+sure, the court recognized, Brock does not cross state lines 
+himself or interact directly with those who do. 121 F. 4th 
+753, 757–761 (CA10 2024). But, the court held, those facts 
+were “not dispositive.” Id., at 761. Instead, the court said, 
+what mattered was that Brock's “intrastate route formed a 
+constituent part of the . . . interstate journey” of Flowers's 
+goods from out-of-state bakeries to their intended destina­
+tions at retail stores. Id., at 764; see also id., at 766. 
+Flowers petitioned for certiorari. In doing so, it asked us 
+to resolve a single question: whether someone can qualify as 
+a worker “engaged in . . . interstate commerce” under § 1 if 
+he never crosses state lines and never interacts with vehicles 
+that do. Pet. for Cert. i. We agreed to take up that ques­
+tion. 607 U. S. 992 (2025). 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 380 (2026) 
+385 
+Opinion of the Court 
+II 
+In recent years, we have had occasion to address the scope 
+of § 1's exemption no fewer than three times. In each case, 
+we have rejected efforts to cabin its reach. First, in New 
+Prime Inc. v. Oliveira, 586 U. S. 105 (2019), we held that 
+the “contracts of employment” § 1 embraces include contracts 
+governing independent contractors, not just employees. Id., 
+at 116. Then, in Southwest Airlines Co. v. Saxon, 596 U. S. 
+450 (2022), we held an airline worker who loaded and un­
+loaded cargo ft within § 1's exemption even though she did 
+not fy planes or otherwise cross state lines. Id., at 459, 461. 
+Finally, in Bissonnette, we held that a worker can fall under 
+§ 1 whether he is employed in the “transportation industry” 
+or some other, so long as his work “play[s] a direct and neces­
+sary role in the free fow of goods across borders.” 601 
+U. S., at 256 (internal quotation marks omitted). 
+Make this case the fourth. Before us, Flowers's sole the­
+ory is that, to be engaged in interstate commerce for pur­
+poses of § 1, a worker must either cross state lines or interact 
+with a vehicle that does (say, by loading or unloading the 
+goods it carries). That theory is incorrect. We have al­
+ready held in Saxon that § 1 does not require workers to 
+cross state lines. 596 U. S., at 459, 461. Nor, we now add, 
+does § 1 turn on a game of tag with vehicles that do. At 
+least sometimes, a worker who transports goods on an intra­
+state leg of an interstate journey can qualify for § 1's exemp­
+tion without satisfying either of those criteria. 
+Start with the statutory text. Section 1's exemption ap­
+plies to “workers engaged in . . . interstate commerce.” 
+When the FAA was enacted, to “engage” meant to “take 
+part in” something or to be “employ[ed]” or “involve[d]” in 
+that thing. Black's Law Dictionary 661 (3d ed. 1933) 
+(Black's); see also Webster's New International Dictionary 
+725 (1913) (“To embark in a business; to take a part; to em­
+ploy or involve one's self; to devote attention and effort”). 
+And “interstate commerce” meant “[t]raffc,” “intercourse,” 
+Page Proof Pending Publication
+
+386 
+FLOWERS FOODS, INC. v. BROCK 
+Opinion of the Court 
+or “the transportation of persons or property between or 
+among the several states of the Union, or from or between 
+points in one state and points in another state.” Black's 
+1001; see also Cyclopedic Law Dictionary 548 (2d ed. 1922) 
+(Cyclopedic) (“A shipment from one state to another under a 
+contract for continuous carriage is interstate commerce, even 
+as to so much of the journey as is within the limits of a 
+single state”). 
+Nothing in those terms requires an individual to cross 
+state lines or interact with a vehicle that does. Interstate 
+commerce includes transporting products “between points in 
+one state and points in another state.” Black's 1001. That 
+involves not just crossing state lines, but intrastate activity 
+too. Though “a continuous carriage” may begin in one State 
+and end in another, “much of the journey” can take place 
+“within the limits of a single state.” Cyclopedic 548. And 
+at least sometimes, a person can “take part,” be “em­
+ploy[ed],” or be “involve[d]” in that continuous journey with­
+out leaving a State or touching vehicles that do. Black's 
+661. 
+Some hypotheticals help illustrate the point. Imagine 
+Customer A in State A enters a contract to purchase a truck­
+load of Butterscotch Krimpets from Company B in State B. 
+Company B makes the Krimpets in State B, but the contract 
+requires Company B to deliver them to Customer A's head­
+quarters in State A. So, Company B hires a driver to take 
+the Krimpets from the bakery in State B to the headquarters 
+in State A. All agree that the driver in a case like that is 
+engaged in interstate commerce. 
+Now imagine instead that Company B hires three drivers 
+to make the delivery. Driver 1 takes the Krimpets from 
+Company B's bakery right up to the border between States 
+A and B. He then gets out of his truck, unloads pallets of 
+Krimpets on his side of the border, and drives home. Driver 
+2 then picks up the Krimpets, drives ten feet across the bor­
+der, puts the Krimpets down again, and heads off. Finally, 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 608 U. S. 380 (2026) 
+387 
+Opinion of the Court 
+Driver 3 picks up the Krimpets in State A and delivers them 
+to Company A's headquarters. Who was engaged in inter­
+state commerce? On Flowers's account, only Driver 2 would 
+be—neither Driver 1 nor Driver 3 crossed state lines or 
+touched a vehicle that had. But that cannot be right. Each 
+of the drivers played a direct, active, and necessary part in 
+ensuring the Krimpets got from a point in State B (the bak­
+ery) to a point in State A (the headquarters) as the con­
+tract required. 
+This hypothetical, really, is hardly a hypothetical at all. 
+This Court confronted similar facts more than 150 years ago 
+in The Daniel Ball, 10 Wall. 557 (1871). There, a steamer 
+transporting goods on Grand River operated “entirely within 
+the limits of the State” of Michigan. Id., at 565. The 
+steamer “did not run in connection with, or in continuation 
+of, any line of vessels or railway leading to other States,” 
+but “was employed in transporting goods destined for other 
+States, or goods brought from without the limits of Michigan 
+and destined to places within that State.” Ibid. Still, the 
+Court held, the steamer “was engaged in commerce between 
+the States.” Ibid. As the Court put it, “[t]he fact that sev­
+eral different and independent agencies are employed in 
+transporting the commodity, some acting entirely in one 
+State, and some acting through two or more States, does in 
+no respect affect the character of the transaction.” Ibid. 
+In other words, the steamer was “engaged in” interstate 
+commerce even though it stayed in Michigan, and even 
+though it did not come into direct contact with a vessel that 
+had crossed state lines. 
+Other cases are to similar effect. In Rearick v. Pennsyl­
+vania, 203 U. S. 507 (1906), we held that a Pennsylvania 
+salesman who picked up goods shipped from out of state and 
+delivered them to their fnal destination was “engaged in in­
+terstate commerce” with no indication that he ever left Penn­
+sylvania or interacted with vehicles that had. Id., at 510– 
+513. In Rhodes v. Iowa, 170 U. S. 412 (1898), we held that a 
+
+388 
+FLOWERS FOODS, INC. v. BROCK 
+Opinion of the Court 
+railroad agent who moved a package from a train “platform 
+to [a] freight warehouse” entirely within one State could, in 
+certain circumstances, be “part of . . . interstate commerce 
+transportation.” Id., at 413–414, 426. And in Norfolk & 
+Western R. Co. v. Pennsylvania, 136 U. S. 114 (1890), we held 
+that an intrastate portion of an interstate railroad business 
+was “immediately connected with interstate commerce.” 
+Id., at 119–120; see also id., at 119 (citing The Daniel Ball, 
+10 Wall., at 565). We could go on. 
+Flowers's only real answer is to observe that these cases 
+and others like them interpreted the Constitution's Com­
+merce Clause, not § 1 of the FAA. Fair enough. We do not 
+mean to suggest that the scope of § 1 is coterminous with the 
+scope of the Commerce Clause as it was interpreted at the 
+time of the FAA's adoption in 1925. After all, § 1 “exempts 
+from the FAA only contracts of employment of transporta­
+tion workers.” Circuit City Stores, Inc. v. Adams, 532 U. S. 
+105, 119 (2001) (emphasis added). And the statute speaks of 
+transportation workers “engaged in” interstate commerce, 
+while Congress sometimes uses broader terms, like “affect­
+ing” or “involving” interstate commerce, when it wishes to 
+regulate to the outer bounds of its authority under the Com­
+merce Clause. Saxon, 596 U. S., at 458 (internal quotation 
+marks omitted). At the same time, we can hardly blind our­
+selves to what this Court's cases said, both before and around 
+the time of the FAA's adoption, about what it means to be 
+“engaged in commerce between the States.” The Daniel 
+Ball, 10 Wall., at 565. We think cases using the same lan­
+guage as § 1, or formulations very close to it, offer probative 
+evidence of what an ordinary person at the time of the FAA's 
+enactment would have understood its terms to mean. 
+To be sure, and as Flowers highlights, we have held that 
+the phrase “engaged in” interstate commerce in § 1 denotes 
+a “direct,” “necessary,” and “activ[e]” role in moving goods 
+across borders. Saxon, 596 U. S., at 458 (internal quotation 
+marks omitted). We reaffrm as much today. But we do 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 380 (2026) 
+389 
+Opinion of the Court 
+not see how any of that dictates the rule Flowers seeks. As 
+the hypothetical above and cases like The Daniel Ball illus­
+trate, individuals can sometimes be direct, necessary, and ac­
+tive participants in moving goods “from . . . points in one 
+state” to “points in another state” without crossing state 
+lines or interacting with vehicles that do. Black's 1001. 
+Unable to persuade us that the FAA incorporates its cross­
+or-tag rule, Flowers hints at other reasons why Brock might 
+not qualify for § 1's exemption. Flowers observes, for exam­
+ple, that it conducts its business with Brock through a distri­
+bution agreement it has with an “independently operated 
+compan[y]” he owns. Brief for Petitioners 9. And, indeed, 
+some lower courts have found that relevant when assessing 
+whether a “contract of employment” exists suffcient to trig­
+ger § 1's exemption. Compare Fli-Lo Falcon, LLC v. Ama­
+zon.com, Inc., 97 F. 4th 1190, 1197–1198 (CA9 2024) (holding 
+§ 1 inapplicable to a contract “between two business en­
+tities”), with Silva v. Schmidt Baking Distribution, LLC, 
+162 F. 4th 354, 356–357 (CA2 2025) (holding § 1 applicable 
+to certain agreements with “single-employee corporations”). 
+Flowers also contends that Brock orders, purchases, and 
+takes title to Flowers's goods, before selling them to local 
+stores. Brief for Petitioners 21, 42. And, again, some 
+lower courts have found facts like those relevant when as­
+sessing § 1's reach. See, e. g., Rittmann v. Amazon.com, 
+Inc., 971 F. 3d 904, 916 (CA9 2020) (focusing on whether a 
+product has reached its “intended destinatio[n]” under an in­
+terstate contract); 121 F. 4th, at 766–767 (considering title 
+changing hands); Immediato v. Postmates, Inc., 54 F. 4th 67, 
+72, 78 (CA1 2022) (holding that intrastate couriers fulflling 
+take-out orders made within the State are not engaged in 
+interstate commerce). 
+The trouble is that, while Flowers discusses these facts in 
+passing, it does not ask us to decide their legal signifcance. 
+Instead, it ventures all upon one cast, asking us to adopt a 
+bright-line rule that an individual can never qualify for § 1's 
+Page Proof Pending Publication
+
+390 
+FLOWERS FOODS, INC. v. BROCK 
+Opinion of the Court 
+exemption unless he crosses state lines or interacts with ve­
+hicles that do. And whatever other limits § 1 may or may 
+not contain, we do not see how the statutory text can support 
+that one. 
+* 
+The judgment of the Tenth Circuit is affrmed. 
+It is so ordered. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+No. 25–385 (25A378) 
+CHARLES RAY CRAWFORD v. MISSISSIPPI 
+ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF 
+CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI 
+[October 15, 2025] 
+The application for stay of execution of sentence of death 
+presented to JUSTICE ALITO and by him referred to the
+Court is denied. The petition for a writ of certiorari is de­
+nied. 
+JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 
+JUSTICE JACKSON join, dissenting from the denial of appli­
+cation for stay and denial of certiorari. 
+Charles Ray Crawford will be executed tonight for a 
+crime that his own lawyers told the jury he committed, de­
+spite his express instructions not to do so. Had this case 
+come to this Court on direct appeal, Crawford could have 
+proved that his Sixth Amendment rights were violated un­
+der our decision in McCoy v. Louisiana, 584 U. S. 414 
+(2018), in which we held that lawyers may not override a
+defendant’s explicit and unequivocal decision not to concede
+guilt at trial. He would also likely be entitled to a new trial, 
+as a McCoy violation is a structural error that mandates 
+reversal. 
+Because Crawford’s convictions became final before 
+McCoy was decided, however, this case raises a threshold 
+issue that this Court has not squarely resolved: Whether 
+McCoy applies to cases on collateral review because it 
+merely applied existing law, or whether McCoy announced 
+a nonretroactive “new” rule of constitutional law.  This 
+question has divided lower courts.  It is also undoubtedly
+important, and is even more so in this case because its 
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+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+answer determines whether Crawford will be executed.  I 
+would therefore grant Crawford’s application for a stay of 
+execution and petition for certiorari.  As the Court aban­
+dons its duty to resolve this important question, I respect­
+fully dissent. 
+I 
+In September 1993, Crawford was indicted for murdering 
+Kristy Ray.  See Crawford v. State, 716 So. 2d 1028, 1031 
+(Miss. 1998).  The State alleged that Crawford kidnapped, 
+raped, and stabbed Ray. Id., at 1031–1037.  Crawford dis­
+puted these allegations and pleaded not guilty. 
+The trial court appointed two attorneys to assist Craw­
+ford in his defense.  Crawford grew upset with his lawyers
+because he did not believe that they were adequately inves­
+tigating the charges against him.  He sent them several let­
+ters from jail urging them to do more.  He described in de­
+tail the pretrial motions he wanted them to file, the lines of 
+attack he wanted them to pursue, and the evidence he 
+wanted them to put on, all in pursuit of showing at trial 
+that the State did not prove each element of its case against 
+him. See Exhs. F, J.1 
+Simply put, Crawford had one goal: to be found “not 
+guilty.” He instructed his counsel: “Any mistake, no matter 
+how great or small, made by the prosecution in preparing
+its case against me must be brought before the court and
+put on record!” Exh. F, p. 12 (spelling corrected, emphasis 
+in original).  He also reminded his counsel: “Until all 12 
+members of a jury find me guilty beyond a reasonable doubt 
+of every element of the crimes I’ve been charged with? I am 
+still innocent!!” Id., at 13 (spelling corrected, emphasis in
+original). 
+—————— 
+1Citations to exhibits are to the exhibits attached to Crawford’s Peti­
+tion for Post-Conviction Relief before the Mississippi Supreme Court, No.
+2024–DR–01386–SCT (filed Dec. 12, 2024). 
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+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+Crawford’s lawyers did not listen.  Not because they mis­
+understood Crawford, but because they chose not to.  As one 
+of the lawyers later attested, they knew full well that Craw­
+ford had “objected to the concession of his guilt and the pur­
+suit of an insanity defense before and during trial.”  Exh. A, 
+at 1. Even so, they did the exact opposite of what Crawford
+asked of them: They conceded to the jury that Crawford had
+killed Ray and pursued an insanity defense.
+Crawford’s lawyers’ first concession came before the jury 
+was even seated. During voir dire, they told potential ju­
+rors that “the State . . . will be primarily concerned almost 
+exclusively with the ‘what’ of this case. What happened? 
+. . . What did [Crawford] do?”  Exh. M, at 309. They clari­
+fied, however, that the jurors should not “anticipate a de­
+fense or that the defense is going to be able to . . . prevent 
+[the State] from showing that [Crawford] did in fact commit
+the acts that he is charged with. The ‘what’ is not going to
+be very much in question here.”  Id., at 310. Crawford’s 
+lawyers repeated these points during opening arguments. 
+See id., at 415–416. During closing arguments, counsel
+again told the jury that “[t]he what of this case is not in 
+question,” because “[n]o one” other than Crawford “is le­
+gally responsible for what happened here.”  Id., at 1179. 
+Counsel also told the jury there was “certainly not” “any
+question” that he “is still dangerous to the community” and 
+that he understood if the jurors thought Crawford was a 
+“monster” who should not be “turn[ed] . . . loose.” Id., at 
+1189–1190. 
+ Crawford vigorously objected to these concessions 
+throughout trial.  He told the judge: “I have got copies of
+letters here that I sent my attorneys and things that I 
+wanted them to do . . . . They have not done them.  They
+came here yesterday [and] told the jury that I was already 
+guilty before the trial started and I do not recognize them
+as my attorneys any more.”  Id., at 409. He also moved for 
+a mistrial on the ground that “the jury was tainted from the 
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+4 
+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+beginning” and had been further tainted by his counsel’s 
+repeated admissions of guilt.  Id., at 819–820.  In his view, 
+his lawyers “might as well [have] been sitting over there
+with the prosecution.” Id., at 820. 
+The trial judge overruled Crawford’s objections and de­
+nied his motion for a mistrial. The jury convicted Crawford 
+and sentenced him to death. The Mississippi Supreme
+Court affirmed Crawford’s conviction and sentence in 1998. 
+Crawford has continued to challenge his convictions and 
+death sentence in both state and federal postconviction pro­
+ceedings. 
+See, e.g., Crawford v. State, 867 So. 2d 196 
+(2003); Crawford v. Epps, 353 Fed. Appx. 977 (CA5 2009); 
+Crawford v. State, 218 So. 3d 1142 (Miss. 2016); see also 
+Crawford v. Cain, 122 F. 4th 158 (CA5 2024).
+After the State moved for a death warrant, Crawford filed 
+this postconviction motion before the Mississippi Supreme
+Court in December 2024. He claimed that, under McCoy v. 
+Louisiana, 584 U. S. 414, his conviction must be vacated be­
+cause his Sixth Amendment right to maintain his innocence
+was violated by his counsel’s concessions of guilt at trial. 
+The Mississippi Supreme Court did not act on the motion 
+for eight months. It then issued a death warrant for Craw­
+ford and a short order denying relief on the ground that
+Crawford’s McCoy claim was barred. ___ So. 3d ___, ___, 
+2025 WL 2675597, *1 (Sept. 12, 2025); Pet. App. 5a–6a.  It 
+began by noting that Crawford’s petition was subject to
+Mississippi’s timeliness and successive-writ bars unless he 
+could show that McCoy qualified as an “intervening deci­
+sion” that exempted him from them.  2025 WL 2675597, *1; 
+see Miss. Code Ann. §§99–39–5(2)(a)(i), 99–39–27(9) (1973–
+2020). It declined to apply that exception.  It first explained 
+that Crawford had “waited seven years to file this claim af­
+ter the decision in McCoy was issued.”  2025 WL 2675597, 
+*1. It then held that “Crawford [had] not shown that McCoy
+should be given retroactive effect.” Ibid. This petition for 
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+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+a stay and petition for writ of certiorari followed less than 
+three weeks later. 
+II 
+As a threshold matter, Mississippi argues that we lack
+jurisdiction to hear this case because Crawford’s motion
+was procedurally barred as untimely and successive under
+state law. Neither ground precludes review here. 
+This Court will not review a state-court decision that 
+rests on adequate and independent state-law grounds. 
+Glossip v. Oklahoma, 604 U. S. 226, 242 (2025).  “A state 
+ground of decision is independent only when it does not de­
+pend on a federal holding, and also is not intertwined with
+questions of federal law.”  Ibid. (citation omitted). A state-
+law ground’s independence must be “‘clear from the face of
+the opinion.’” Ibid. (quoting Michigan v. Long, 463 U. S. 
+1032, 1040–1041 (1983)). 
+The Mississippi Supreme Court’s opinion is intertwined
+with federal law. It rejected the intervening-decision excep­
+tion on the grounds that McCoy was not retroactive. 2025 
+WL 2675597, *1. That is a squarely federal issue, as “[t]he 
+determination whether a constitutional decision of this 
+Court is retroactive . . . is a matter of federal law.” Ameri­
+can Trucking Assns., Inc. v. Smith, 496 U. S. 167, 177 
+(1990) (plurality opinion); Harper v. Virginia Dept. of Tax­
+ation, 509 U. S. 86, 100 (1993) (“The Supremacy Clause 
+does not allow federal retroactivity doctrine to be sup­
+planted by the invocation of a contrary approach to retroac­
+tivity under state law” (citation omitted)); Yates v. Aiken, 
+484 U. S. 211, 214–218 (1988). 
+The State contends that the intervening-decision excep­
+tion does not turn on whether a rule is retroactive but turns 
+instead on a state-law determination whether McCoy qual­
+ified as an “intervening decisio[n]” that “‘would have actu­
+ally adversely affected’” Crawford’s case.  Brief in Opposi­
+tion 19. That reasoning, however, appears nowhere on the 
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+6 
+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+face of the Mississippi Supreme Court’s opinion, see 2025
+WL 2675597, *1, and so it does not bar our review here, see 
+Long, 463 U. S., at 1040–1041.  In any event, whether 
+McCoy would have affected Crawford’s conviction neces­
+sarily depends on federal law because a McCoy violation is 
+a structural error that automatically entitles a defendant
+to a reversal of his conviction.  See 584 U. S., at 427–428. 
+To be sure, the Mississippi Supreme Court also observed
+that Crawford did not file this motion until seven years af­
+ter McCoy was decided. 2025 WL 2675597, *1. It is not 
+clear that the court rejected Crawford’s claim on this basis,
+so it cannot independently support the judgment below.
+See, e.g., Long, 463 U. S., at 1040–1401. 
+Nor does the 
+State’s opposition argue that this delay alone deprives the 
+Court of jurisdiction.  That is not surprising, as the Missis­
+sippi Supreme Court has long recognized that state law
+specifies no “time limitation in which to file a second or suc­
+cessive application if such application meets one of the stat­
+utory exceptions,” such as the intervening-decision excep­
+tion. See Bell v. State, 66 So. 3d 90, 93 (2011) (granting 
+relief on a motion filed eight years after the intervening de­
+cision from this Court on which the motion was based).  We 
+thus have jurisdiction. 
+III 
+To grant a stay, this Court must find a reasonable proba­
+bility that the Court would vote to grant certiorari, a signif­
+icant possibility of reversal, and a likelihood of irreparable
+injury to the applicant without a stay.  Barefoot v. Estelle, 
+463 U. S. 880, 895 (1983).  Crawford’s application meets 
+these criteria. There is no question that Crawford will suf­
+fer irreparable harm if he is executed before the weighty 
+constitutional issues he raises are resolved.  As for the other 
+factors, the Mississippi Supreme Court’s retroactivity hold­
+ing warrants this Court’s review because it implicates a 
+split among the lower courts on an important constitutional 
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+7 
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+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+issue. Crawford has also shown a significant possibility of 
+reversal because the decision below is deeply flawed. Fi­
+nally, although Crawford did not raise his McCoy claim un­
+til after the State sought a death warrant, that delay does
+not require denial here. 
+A 
+First, this case warrants our review because it implicates
+a split among the lower courts on an important issue that
+will decide whether Crawford lives or dies: Whether McCoy
+is retroactive and applies to individuals like Crawford who 
+are litigating their claims in the postconviction setting.
+At the outset, a case decided after a conviction becomes 
+final applies retroactively if it either (1) merely applied set­
+tled law to a new factual context or (2) announced a “new” 
+substantive rule of law that removed certain conduct from 
+criminal prohibition. Chaidez v. United States, 568 U. S. 
+342, 347–348, and n. 3 (2013). A new procedural rule will
+not be given retroactive effect. Edwards v. Vannoy, 593 
+U. S. 255, 273 (2021).
+Courts have come to different conclusions over where 
+McCoy falls within this framework.  Two courts hold that 
+McCoy applies retroactively because it did not announce a
+new rule of constitutional law. In their view, McCoy applied
+pre-existing precedents to a new factual circumstance.  See 
+In re Smith, 49 Cal. App. 5th 377, 390–392, 263 Cal. Rptr. 
+3d 63, 73–74 (2020) (explaining that McCoy did not an­
+nounce a new rule); Jan G. v. Commissioner of Correction, 
+2023 WL 8431827, *18–*20 (Conn. Super. Ct., Nov. 20, 
+2023) (same).
+The Mississippi Supreme Court, on the other hand, held 
+in this case that McCoy is not retroactive, apparently on the 
+ground that McCoy announced a new rule that is procedural
+and not substantive.  See 2025 WL 2675597, *1; see also 
+Miss. Motion to Dismiss in No. 2024–DR–01386–SCT 7 (ar­
+guing that McCoy announced a nonretroactive new rule). 
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+8 
+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+The Fourth Circuit has also suggested, though it did not de­
+cide, that “McCoy might . . . be considered a new rule.” 
+Smith v. Stein, 982 F. 3d 229, 234 (2020).
+This split goes to the heart of defendants’ Sixth Amend­
+ment rights to control their own defense.  As we explained 
+in McCoy, depriving a defendant of his “Sixth Amendment-
+secured autonomy” violates “the fundamental legal princi­
+ple that a defendant must be allowed to make his own 
+choices about the proper way to protect his own liberty.”
+584 U. S., at 427 (internal quotation marks omitted).  It also 
+causes “immeasurable” harm to a defendant, because “a 
+jury would almost certainly be swayed by a lawyer’s conces­
+sion of his client’s guilt.”  Id., at 428. 
+The importance of the question whether McCoy is retro­
+active is on full display in this case. McCoy violations are 
+so antithetical to the Sixth Amendment that they are
+treated as “structural” errors “not subject to harmless-error 
+review.” Id., at 427. Accordingly, if Crawford prevails on 
+his McCoy claim, he would be automatically entitled to re­
+versal of his conviction and sentence and would not be fac­
+ing execution tonight.
+The Court’s review is needed to resolve the lower courts’ 
+disagreement on this fundamental question.  Indeed, this 
+Court routinely grants certiorari on important questions in
+capital cases without any split at all.2 
+B 
+Second, Crawford has shown a significant possibility of 
+reversal. Mississippi now correctly concedes before this 
+Court that McCoy is retroactive because the rule it applied
+is not new. 
+And if McCoy retroactively applies to 
+—————— 
+2See, e.g., Pet. for Cert., Ramirez v. Collier, No. 21-5592 (U. S. Sept. 7, 
+2021) (no split); Pet. for Cert., Gutierrez v. Saenz, No. 19–8695 (U. S. 
+June 15, 2020) (no split); see also Pet. for Cert. 17–19, Glossip v. Okla­
+homa, No. 22-7466 (U. S. May 4, 2023) (alleging a shallower split than 
+the one present here). 
+
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+9 
+ 
+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+Crawford’s case, then relief is warranted because it was 
+clearly violated at Crawford’s trial. 
+1 
+As mentioned, cases applying old rules to a new context 
+are retroactive, and cases applying new rules are not retro­
+active unless they are substantive. Chaidez, 568 U. S., 
+at 347–348, and n. 3.  A case “does not announce a new rule 
+when it is merely an application of the principle that gov­
+erned a prior decision to a different set of facts.” Id., at 347– 
+348 (brackets, emphasis, and quotation marks omitted). 
+“[W]here the beginning point of our analysis is a rule of gen­
+eral application, a rule designed for the specific purpose of 
+evaluating a myriad of factual contexts, it will be the infre­
+quent case that yields a result so novel that it forges a new 
+rule, one not dictated by precedent.”  Id., at 348 (quotation 
+marks omitted).
+As Mississippi now recognizes, McCoy readily qualifies as 
+an old rule because it “did not . . . change the landscape of
+Sixth Amendment claims about the right to make a de­
+fense.” Brief in Opposition 17. The Sixth Amendment 
+guarantees a criminal defendant the “assistance of counsel 
+for his defence.” The right to counsel is “personal” because 
+it is “the defendant, and not his lawyer,” who “will bear the
+personal consequences of a conviction.”  Faretta v. Califor­
+nia, 422 U. S. 806, 834 (1975).  The defendant’s “choice” in 
+exercising that right “must be honored out of ‘that respect 
+for the individual which is the lifeblood of the law.’”  Ibid. 
+(quoting Illinois v. Allen, 397 U. S. 337, 350–351 (1970) 
+(Brennan, J., concurring)); see Gannett Co. v. DePasquale, 
+443 U. S. 368, 382, n. 10 (1979) (“[T]he [Sixth] Amendment 
+. . . contemplat[es] a norm in which the accused, and not a
+lawyer, is master of his own defense”).  Consistent with the 
+basic principle that the accused is in control of his own de­
+fense, the Court has long recognized that attorneys may not
+override “certain fundamental decisions” made by the 
+
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+10 
+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+defendant, such as “whether to plead guilty, waive a jury,
+testify in his or her own behalf, [] take an appeal,” or even
+“act as his or her own advocate.” Jones v. Barnes, 463 U. S. 
+745, 751 (1983); see Brookhart v. Janis, 384 U. S. 1, 7 
+(1966). 
+McCoy’s holding directly followed from the Court’s prior 
+cases such as Faretta and Jones. “Just as a defendant may
+steadfastly refuse to plead guilty in the face of overwhelm­
+ing evidence against [him], or reject the assistance of legal
+counsel despite the defendant’s own inexperience,” so too
+may a defendant “insist on maintaining [his] innocence.” 
+McCoy, 584 U. S., at 422.  That is because “[t]hese are not 
+strategic choices about how best to achieve [his] objectives”
+but rather “choices about what [his] objectives in fact are.” 
+Ibid. (emphasis in original).  Indeed, for decades prior to 
+McCoy, the clear consensus among lower courts was that a
+defendant has the right to insist on his innocence and that
+the attorney cannot override that choice.3 Before Craw­
+ford’s conviction in this case, moreover, the American Bar 
+Association’s Model Rules of Professional Conduct specified 
+that “[a] lawyer shall abide by a client’s decisions concern­
+ing the objectives of representation.”  Am. Bar. Assn., Model 
+Rules of Prof. Conduct R. 1.2(a) (1989). 
+In view of all these pre-McCoy authorities, Crawford has 
+a strong argument that McCoy’s holding was nothing new
+and that it therefore should apply to his case. 
+2 
+If McCoy does apply to Crawford’s case on postconviction
+review, then there is little question that Crawford is 
+—————— 
+3 See, e.g., Wiley v. Sowders, 647 F. 2d 642, 650 (CA6 1981); Francis v. 
+Spraggins, 720 F. 2d 1190, 1194–1195 (CA11 1983); State v. Anaya, 592 
+A. 2d 1142, 1145–1146 (N. H. 1991); State v. Carter, 14 P. 3d 1138, 1148 
+(Kan. 2000); Cooke v. State, 977 A. 2d 803, 849–850 (Del. 2009); People v. 
+Bergerud, 223 P. 3d 686, 699 (Colo. 2010); cf. Jones v. State, 877 P. 2d 
+1052, 1056–1057 (Nev. 1994); State v. Harbison, 337 S. E. 2d 504, 506– 
+507 (N. C. 1985). 
+
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+11 
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+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+entitled to relief because Crawford’s Sixth Amendment 
+rights were violated at his trial.  Crawford was unequivocal 
+in defining the goal of his defense: to maintain his inno­
+cence and require the Government to prove each element of 
+its case against him. His attorneys took the opposite ap­
+proach. They told the jury at every step of the trial, from
+jury selection through closing arguments, that the State
+was right and that Crawford killed Ray. The record could 
+not be clearer that what Crawford defined, his counsel de­
+fied. 
+Resisting this conclusion, the State contends that defense
+counsel did not concede guilt because counsel pursued an
+insanity defense, which technically results in an acquittal. 
+That hair-splitting argument misses the mark entirely.  See 
+United States v. Read, 918 F. 3d 712, 719–721 (CA9 2019) 
+(rejecting this argument).  First, we made clear in McCoy
+that a defendant has a constitutional right “to decide that 
+the objective of [his] defense is to assert innocence,” not just 
+to obtain a technical acquittal.  584 U. S., at 422 (emphasis 
+added). Second, the difference between a verdict of “not 
+guilty” and a verdict of “not guilty by reason of insanity” is
+highly consequential. The former is an exoneration; the lat­
+ter leads to a defendant’s commitment at a state psychiatric 
+hospital. See Miss. Code Ann. §99-13-7(1); Ex. M, at 1190–
+1191 (defense counsel stating during closing argument that 
+there is “certainly not” “any question . . . that Charles Ray 
+Crawford is still dangerous to the community” and should 
+not be “put . . . on the street”).  The right to direct the goals
+of one’s criminal defense plainly includes the right to decide 
+whether to pursue freedom rather than confinement.
+Crawford’s lawyers, however, deprived him of that basic 
+right. And because the Court declines to act, Crawford will 
+be sent to his death without ever having had a real oppor­
+tunity to hold the State to its burden of proving his guilt. 
+
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+12 
+CRAWFORD v. MISSISSIPPI 
+SOTOMAYOR, J., dissenting 
+3 
+Finally, without doubt, Crawford could have brought his 
+McCoy claim earlier and before the State sought a death 
+warrant.  As the Court has acknowledged, granting a stay
+in late-stage capital litigation, especially when a litigant
+could have asserted his claim earlier, is generally disfa­
+vored. Gomez v. United States Dist. Court for Northern 
+Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam).
+Crawford’s delay, however, is not disqualifying in this 
+case. That is because Mississippi law did not require Craw­
+ford to litigate this claim any sooner.  As the Mississippi 
+Supreme Court observed in 2011, Mississippi law does not 
+impose a filing deadline on a successive habeas petition 
+filed after an intervening decision. Bell, 66 So. 3d, at 93. In 
+the 14 years since then, Mississippi has not amended its
+law to impose one.  The State also cites no cases in which 
+the Mississippi Supreme Court denied relief on timeliness 
+grounds despite a qualifying intervening decision. 
+Given Mississippi’s failure to protect its own interest in
+finality, I would not deny this petition simply because
+Crawford could have filed it earlier, especially considering 
+the other factors that strongly weigh in favor of granting
+relief. I would instead exercise our broad discretion to stay 
+Crawford’s execution, resolve this important question, and 
+fulfill “our duty to search for constitutional error with 
+painstaking care [which] is never more exacting than it is
+in a capital case.”  Kyles v. Whitley, 514 U. S. 419, 422 
+(1995) (quotation marks, brackets omitted); cf. Shinn v. 
+Martinez Ramirez, 596 U. S. 366, 375, n. 1 (2022) (choosing 
+to forgive the State’s forfeiture of an argument in a capital 
+case). 
+*
+*
+* 
+Charles Ray Crawford has identified an important con­
+stitutional issue that this Court has not addressed and has 
+divided courts around the country.  The Court refuses to 
+
+ 
+ 
+ 
+ 
+ 
+ 
+13 
+ 
+Cite as: 607 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+resolve that question, even though a man’s life is in the bal­
+ance. For these reasons, the Court should have granted
+Crawford’s motion for a stay of execution and petition for 
+writ of certiorari.  I respectfully dissent. 
diff --git a/corpus/law/text/46e45cd63fb726a8.txt b/corpus/law/text/46e45cd63fb726a8.txt
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+Analysing the application of governance principles in the management of COVID-19 in South Africa: Lessons for the future
+
+Background: The coronavirus disease 2019 (COVID-19), also known as SARS-CoV-2, poses an enormous challenge to South Africa and the world in as far as its management is concerned. The virus originated in Wuhan City in China at the end of the year 2019 before it spread to other countries of the world. The World Health Organization (WHO) later declared it as a pandemic because of the rapid spread. However, the management of the virus differs from one country to another depending on the systems and principles adopted in that specific country. Aim: Using relevant literature, this article analyses the application of governance principles in the management of the COVID-19 pandemic in South Africa. The article argues that the application of the governance principles was not adequately adhered to. Setting: The coronavirus disease 2019 has an effect globally, however, the focus of this article is specifically in South Africa. However, the lessons learnt are not limited to COVID-19 but to other future epidemics. Methods: The research is qualitative and is based on the vigorous review of relevant literature including relevant reports, regulations and published academic work. Governance theory was adopted to be the lenses within which the reality is viewed. Results: The article presents lessons that have been learnt from the management of COVID-19 and suggests a balance between a special need to manage pandemics and adherence to standard principles of good governance to ensure accountability in the use of state resources whilst ensuring effective management of a disaster. Conclusion: It is imperative that there is an adherence of relevant policies regulating public procurement of goods and services. This is due to the fact that procurement policies make provision for procurement in instances where open bidding process may not be followed including during the time of disaster. Necessary inputs from relevant stakeholders need to be sought for a proper collaboration and support from them and the society at large.
\ No newline at end of file
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+(Slip Opinion) 
+OCTOBER TERM, 2025 
+Syllabus 
+NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
+being done in connection with this case, at the time the opinion is issued. 
+The syllabus constitutes no part of the opinion of the Court but has been 
+prepared by the Reporter of Decisions for the convenience of the reader. 
+See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 
+SUPREME COURT OF THE UNITED STATES 
+Syllabus 
+T. M. v. UNIVERSITY OF MARYLAND MEDICAL 
+SYSTEM CORPORATION ET AL. 
+CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
+THE FOURTH CIRCUIT 
+No. 25–197. Argued April 20, 2026—Decided June 18, 2026 
+The Rooker-Feldman doctrine bars federal district courts from exercising
+jurisdiction over cases brought by state-court losers seeking review 
+and rejection of state-court judgments rendered before district court 
+proceedings commenced.  See Exxon Mobil Corp. v. Saudi Basic Indus­
+tries Corp., 544 U. S. 280, 284.  This case asks whether the doctrine 
+applies only to final judgments rendered by the highest court of a State
+in which a decision could be had, or whether it also bars suit when the 
+state-court judgment at issue remains subject to further review in 
+state appellate proceedings. 
+Petitioner T. M. alleges that she has a medical condition that causes 
+changes in her mental status, including psychosis, when she ingests 
+gluten.  In March 2023, T. M. accidentally ingested gluten and was 
+taken to the emergency room at Baltimore Washington Medical Cen­
+ter, where, after an administrative hearing and over her and her fa­
+ther’s objections, she was involuntarily committed for about three 
+months.  During her stay, T. M.’s treating psychiatrist and the medical
+center obtained an order authorizing the facility to forcibly inject T. M. 
+with antipsychotic medication.  These events prompted a flurry of liti­
+gation, with T. M. and her parents filing several state and federal law­
+suits seeking T. M.’s release and to avoid the forced injections.  T. M. 
+and respondents negotiated a settlement agreement to facilitate 
+T. M.’s discharge, and the state judge presiding over T. M.’s state ha­
+beas petition entered the agreement as a consent order on June 12,
+2023. The consent order provided for T. M.’s immediate release subject 
+to several conditions, including that T. M. obtain a new treating psy­
+chiatrist, continue taking her prescribed medications, and dismiss 
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+2 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Syllabus 
+with prejudice all pending actions against respondents.  Ten days after
+the state court entered the consent order, T. M. and her parents ob­
+tained new counsel and sued respondents in Federal District Court for 
+the District of Maryland, seeking a declaration that the consent order
+violated T. M.’s federal and state due-process rights, a declaration that
+the order was obtained under duress, and an injunction preventing its 
+enforcement. Meanwhile, T. M. appealed the consent order to the Ap­
+pellate Court of Maryland and raised similar arguments.  T. M. later 
+successfully moved to stay the state-court appeal to prevent incon­
+sistent rulings.  The District Court dismissed the complaint sua sponte 
+for lack of subject matter jurisdiction under the Rooker-Feldman doc­
+trine.  The Fourth Circuit affirmed, rejecting T. M.’s argument that 
+Rooker-Feldman applies only to judgments that are final judgments
+from the highest court of a State in which the decision could be had. 
+Held: The Rooker-Feldman doctrine bars federal district court jurisdic­
+tion over cases brought by state-court losers complaining of injuries
+caused by state-court judgments rendered before the district court pro­
+ceedings commenced and seeking district court review and rejection of
+those judgments, regardless of whether the state-court judgment re­
+mains subject to further review in state appellate proceedings.  Pp. 5–
+18. 
+(a) Federal district courts generally lack “any power to review di­
+rectly cases from state courts.” Atlantic Coast Line R. Co. v. Locomo­
+tive Engineers, 398 U. S. 281, 286. The Supreme Court is the only fed­
+eral court with appellate jurisdiction to review state-court judgments,
+and that jurisdiction extends only to “[f]inal judgments or decrees ren­
+dered by the highest court of a State in which a decision could be had,” 
+28 U. S. C. §1257(a). In Rooker v. Fidelity Trust Co., 263 U. S. 413, the 
+Court held that a Federal District Court lacked jurisdiction to declare 
+a state-court judgment “null and void” because doing so would be “an 
+exercise of appellate jurisdiction,” which only the Supreme Court pos­
+sesses, and the “jurisdiction possessed by the District Courts is strictly
+original.” Id., at 414–416.  In District of Columbia Court of Appeals v. 
+Feldman, 460 U. S. 462, the Court held that a Federal District Court 
+lacked jurisdiction to “review” a final judicial determination of the 
+D. C. high court because such “[r]eview . . . can be obtained only in [the
+Supreme] Court” under §1257.  Id., at 476, 482. 
+Rooker and Feldman rest on two closely related bases of reasoning. 
+First, when plaintiffs “essentially invit[e] federal courts of first in­
+stance to review and reverse unfavorable state-court judgments,” they
+are seeking an exercise of appellate jurisdiction.  Exxon, 544 U. S., at 
+283–284.  Second, such “appellate jurisdiction to reverse or modify a
+state-court judgment is lodged, . . . by 28 U. S. C. §1257, exclusively in 
+[the Supreme] Court.”  544 U. S., at 283. This Court has since refused 
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+3 
+Cite as: 608 U. S. ___ (2026) 
+Syllabus 
+to expand the Rooker-Feldman doctrine but has also reaffirmed its rule 
+in the narrow ground it occupies.  Exxon, 544 U. S., at 284.  Pp. 5–8.
+(b) T. M.’s case falls within “the narrow ground occupied by Rooker-
+Feldman,” Exxon, 544 U. S., at 284, because she is complaining of in­
+juries caused by, and seeking relief from, the state-court judgment it­
+self, arguing that the consent order violates her federal and state due
+process rights and was entered into under duress.  The consent order 
+was rendered 10 days before T. M. commenced this federal lawsuit, 
+and she plainly seeks “review and rejection” of the “ ‘Consent Order’ ” 
+by asking the District Court to declare it “unconstitutional, unenforce­
+able, and void ab initio” and to enjoin its “enforcement.”  139 F. 4th 
+344, 347.  P. 8. 
+(c) The Court rejects T. M.’s argument that Rooker-Feldman should 
+apply only to final judgments rendered by the highest court of a State
+in which a decision could be had, i.e., the kinds of judgments that
+strictly fall within this Court’s jurisdiction under 28 U. S. C. §1257.
+Pp. 9–18.
+(1) T. M.’s theory cannot be squared with the Court’s precedents. 
+T. M. reads the Court’s prior Rooker-Feldman cases not to evince any 
+concern about district courts exercising what amounts to appellate ju­
+risdiction over state-court judgments, but instead as relying on a strict
+negative inference from §1257: when this Court has jurisdiction over a 
+state-court judgment, district courts must not.  But this Court’s prece­
+dents plainly adopted a more functional view of what constitutes orig­
+inal and appellate jurisdiction under §1331. In Rooker, nothing in the
+Court’s reasoning suggested the outcome would have been different 
+had the judgment still been on appeal; the Court held that seeking to
+“reverse or modify the [state-court] judgment” would be an “exercise of 
+appellate jurisdiction,” which the District Court lacks because it has 
+“strictly original” jurisdiction.  263 U. S., at 416.  Later cases confirmed 
+that Rooker-Feldman bars suits in federal district court that “see[k] 
+what in substance would be appellate review of [a] state judgment,”
+regardless of whether the judgment formally falls within this Court’s 
+§1257 jurisdiction.  Johnson v. De Grandy, 512 U. S. 997, 1005–1006. 
+In fact, Feldman explicitly rejected the notion that district courts have
+jurisdiction to review state-court judgments so long as the judgments
+are not yet within this Court’s §1257 jurisdiction.  460 U. S., at 483– 
+484, n. 16 (explaining that irrespective of the Court’s “jurisdiction to 
+review a final state court judgment . . . ‘lower federal courts possess 
+no power whatever to sit in direct review of state court decisions’ ”).
+Pp. 9–13.
+(2) If departure from this Court’s precedents alone were not 
+enough to affirm the dismissal of T. M.’s suit under Rooker-Feldman, 
+adopting T. M.’s rule would also create anomalous outcomes and 
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+4 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Syllabus 
+undermine federalism principles.  Allowing federal district courts to 
+review state-court judgments while they are on appeal in the state-
+court system would undermine the “[c]ooperation and comity” on 
+which the Nation’s federal system is built. Ruhrgas AG v. Marathon 
+Oil Co., 526 U. S. 574, 586. T. M.’s rule would also produce arbitrarily
+different results depending on when a federal suit seeking review of a 
+state-court judgment is filed, encouraging parties to file earlier in fed­
+eral court while the state appellate proceedings are pending, and to 
+duplicate their efforts even though the state process may resolve the 
+dispute in their favor.
+T. M.’s contention that abstention and preclusion doctrines can do 
+nearly all of the work that Rooker-Feldman does is unavailing. It is 
+unclear if such doctrines even apply in cases where a plaintiff com­
+plains of injuries that stem directly from a state-court judgment rather 
+than attempting to relitigate the same claims.  Federalism principles 
+are thus best served by continuing to apply Rooker-Feldman to federal 
+plaintiffs seeking review of state-court judgments, regardless of
+whether those judgments are final trial-court judgments or those of a 
+State’s highest court. Pp. 13–16.
+(3) T. M. contends that the Court should adopt her position be­
+cause it will generally cabin Rooker-Feldman, a doctrine she claims 
+has caused confusion and is overused as a docket-clearing mechanism 
+in the lower courts.   T. M.’s proposed rule would fail to address the 
+source of confusion in current Rooker-Feldman doctrine—determining 
+when a plaintiff is seeking federal review and rejection of a state-court
+judgment—and would add a new source of confusion by requiring 
+courts to determine whether a state-court judgment is a reviewable 
+final judgment under §1257(a). In any event, the animating force be­
+hind T. M.’s arguments is the belief that Rooker and Feldman were 
+wrongly decided, but this issue is not fairly included in the question
+presented.  The Court today neither expands nor constrains Rooker-
+Feldman but leaves the doctrine as it found it.  Pp. 16–18. 
+139 F. 4th 344, affirmed. 
+SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS, 
+ALITO, KAVANAUGH, and JACKSON, JJ., joined.  THOMAS, J., filed a concur­
+ring opinion. BARRETT, J., filed a dissenting opinion, in which ROBERTS, 
+C. J., and KAGAN and GORSUCH, JJ., joined. 
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+_________________ 
+_________________ 
+1 
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+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+NOTICE: This opinion is subject to formal revision before publication in the 
+United States Reports. Readers are requested to notify the Reporter of 
+Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+SUPREME COURT OF THE UNITED STATES 
+No. 25–197 
+T. M., PETITIONER v. UNIVERSITY OF MARYLAND 
+MEDICAL SYSTEM CORPORATION, ET AL. 
+ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
+APPEALS FOR THE FOURTH CIRCUIT 
+[June 18, 2026] 
+JUSTICE SOTOMAYOR delivered the opinion of the Court. 
+Under what has become known as the Rooker-Feldman 
+doctrine, federal district courts lack jurisdiction over “cases 
+brought by state-court losers complaining of injuries caused
+by state-court judgments rendered before the district court
+proceedings commenced and inviting district court review
+and rejection of those judgments.”  Exxon Mobil Corp. v. 
+Saudi Basic Industries Corp., 544 U. S. 280, 284 (2005). 
+This case asks whether this rule bars suit when the state-
+court judgment at issue is subject to further review in state
+appellate proceedings. A straightforward application of the 
+logic and reasoning underlying Rooker-Feldman leads to 
+one conclusion: It does. Because this suit falls within the 
+narrow doctrine’s limits, the Court of Appeals for the 
+Fourth Circuit properly affirmed its dismissal. 
+I 
+A 
+Petitioner T. M. alleges that she has a medical condition 
+that “‘causes changes in [her] mental status upon ingesting 
+any amount of gluten’ and can result in ‘episodes of psycho­
+sis.’”  139 F. 4th 344, 347 (CA4 2025) (alteration in 
+
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+2 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+original). In March 2023, T. M. accidentally ingested glu­
+ten and was taken to the emergency room at Baltimore
+Washington Medical Center. After an administrative hear­
+ing before a Maryland administrative law judge (ALJ), and 
+over her and her father’s objection, she was involuntarily 
+committed to the facility, where she stayed for about three 
+months. During her stay, T. M.’s treating psychiatrist and 
+the medical center sought, and were granted by a clinic re­
+view panel, an order authorizing the facility forcibly to in­
+ject T. M. with antipsychotic medication.  That order was 
+later affirmed by an ALJ.
+These events jumpstarted a flurry of litigation, with T. M. 
+and her parents filing several state and federal lawsuits
+seeking to have T. M. released from involuntary commit­
+ment and to avoid the forced injections. In state court, 
+T. M. filed two petitions for judicial review of the ALJ deci­
+sions allowing her involuntary admission and upholding 
+the forced-injection order. She also filed a state habeas pe­
+tition and a separate civil action, with several emergency
+motions, seeking release from the medical center.  In fed­
+eral court, T. M. filed a due-process suit seeking damages 
+and an injunction requiring her discharge. T. M.’s father, 
+for his part, filed a state-court action against respondents
+seeking an order requiring them to recognize T. M.’s pur­
+ported advance medical directive listing him as T. M.’s
+healthcare agent if she became incompetent to make deci­
+sions. 
+In the midst of those lawsuits, T. M. and respondents ne­
+gotiated a settlement agreement to facilitate T. M.’s dis­
+charge, and the state judge presiding over the state habeas 
+petition entered the agreement as a consent order.  The con­
+sent order provided for T. M.’s immediate release subject to 
+several conditions, including that T. M. would “(1) obtain a
+new treating psychiatrist and continue to take her hospital-
+prescribed medications; (2) regularly meet and consult with
+a third-party provider regarding her treatment and 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+medication; (3) accept a referral to [an outpatient clinic] and
+follow their recommendations; (4) take all prescribed medi­
+cations; and (5) dismiss with prejudice all of her [and her 
+parents’] pending actions against [respondents].”  App. to 
+Pet. for Cert. 24a. The consent order also required T. M.’s
+parents to monitor her use of her medications and report if 
+she stopped taking them. The state court, counsel for T. M., 
+and respondents signed the consent order on June 12, 2023, 
+and respondents discharged T. M. 
+B 
+Unfortunately, the consent order did not end the parties’
+dispute in either state or federal court. Ten days after the
+state court entered the consent order, T. M. and her parents 
+obtained new counsel and sued respondents in the District
+Court for the District of Maryland. This lawsuit is now be­
+fore the Court. The complaint sought a declaration that the 
+consent order violated T. M.’s federal and state due-process 
+rights, a declaration that the order was obtained under du­
+ress, and an injunction preventing the order’s enforcement.
+Meanwhile, back in state court, T. M. appealed the con­
+sent order to the Appellate Court of Maryland and raised
+similar arguments. About four months later, T. M. moved 
+to stay the pending appeal in the Appellate Court of Mary­
+land, contending that a stay was warranted to “prevent in­
+consistent rulings” because both the state appeal and the
+pending federal lawsuit were “based on the same facts and
+events.” Motion to Stay in No. 1:23–cv–1684, ECF Doc. 81– 
+1, p. 1. The Appellate Court of Maryland granted the stay,
+which remains in effect. 
+In the federal case, the Maryland District Court dis­
+missed the complaint sua sponte for lack of subject matter
+jurisdiction, holding that T. M.’s claims were barred by the 
+Rooker-Feldman doctrine.  That doctrine, addressed in de­
+tail below, generally holds that federal courts lack jurisdic­
+tion over lawsuits brought by parties who received adverse 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+4 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+judgments in state courts and then turn to federal courts
+seeking “review and rejection of ” those judgments.  Exxon, 
+544 U. S., at 284.1 
+The Fourth Circuit affirmed. The panel observed that in 
+Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923), this Court 
+held that a Federal District Court lacked jurisdiction to 
+“‘declar[e]’ that [a] state court’s judgment was ‘null and 
+void’” under the Federal Constitution because doing so 
+“‘would be an exercise of appellate jurisdiction,’” which only 
+the Supreme Court possesses.  139 F. 4th, at 348 (quoting 
+263 U. S., at 414–415, 416).  Because T. M. was asking the 
+District Court here to do precisely that, the Fourth Circuit 
+reasoned that this “case is too much like Rooker to justify a 
+different” conclusion and thus required dismissal based on 
+Rooker-Feldman. 139 F. 4th, at 346.  In so holding, the 
+Fourth Circuit also rejected T. M.’s argument that Rooker-
+Feldman applies only to judgments that are “‘final judg­
+ment[s] from the highest court of a State in which the deci­
+sion could be had,’” reasoning that this Court has never im­
+posed such a requirement. 139 F. 4th, at 353–354. 
+T. M. filed a timely petition for a writ of certiorari seeking
+review of the Fourth Circuit’s conclusion that the Rooker-
+Feldman doctrine can be triggered by a state-court judg­
+ment that remains subject to further review in state court. 
+The Sixth Circuit has taken the same position as the Fourth
+Circuit. See RLR Invs., LLC v. Pigeon Forge, 4 F. 4th 380, 
+389–390, 396 (2021). Other Circuits have held that Rooker-
+Feldman applies only if the state-court proceedings have 
+“ended.” See, e.g., Federación de Maestros de P. R. v. Junta 
+de Relaciones del Trabajo de P. R., 410 F. 3d 17, 24–25 (CA1 
+2005) (outlining three-part test to determine whether state 
+—————— 
+1The District Court also granted respondents’ motion to dismiss 
+T. M.’s parents’ claims on the merits. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+ 
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+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+proceedings have functionally “ended”).2  The Court granted 
+certiorari to resolve the conflict among the Courts of Ap­
+peals. 607 U. S. 1079 (2025). 
+II 
+A 
+“Federal courts are courts of limited jurisdiction and gen­
+erally can resolve only the cases that Congress grants them
+power to hear.” Hain Celestial Group, Inc. v. Palmquist, 
+607 U. S. 421, 424 (2026).  As relevant here, Congress in 28
+U. S. C. §1331 granted federal district courts “original ju­
+risdiction of all civil actions” raising federal questions. Dis­
+trict courts generally lack “any power to review directly
+cases from state courts.”  Atlantic Coast Line R. Co. v. Lo­
+comotive Engineers, 398 U. S. 281, 286 (1970).  Instead, this 
+Court is the only federal court with appellate jurisdiction to
+review state-court judgments, and that jurisdiction extends 
+only to “[f]inal judgments or decrees rendered by the high­
+est court of a State in which a decision could be had.” 
+§1257(a). Thus, “from the beginning we have had in this 
+country two essentially separate legal systems” with “[e]ach
+system proceed[ing] independently of the other with ulti­
+mate review in this Court of the federal questions raised in
+either system.” Atlantic Coast Line, 398 U. S., at 286.3 
+The Court delineated some of the bounds that separate
+these two systems in Rooker and Feldman. First, in Rooker, 
+—————— 
+2See also, e.g., Malhan v. Secretary U. S. Dept. of State, 938 F. 3d 453, 
+459–460 (CA3 2019); Nicholson v. Shafe, 558 F. 3d 1266, 1275–1277, and 
+n. 9 (CA11 2009); Guttman v. Khalsa, 446 F. 3d 1027, 1032, n. 2 (CA10 
+2006); Hoblock v. Albany Cty. Bd. of Elections, 422 F. 3d 77, 89 (CA2 
+2005); Mothershed v. Justices of the Sup. Ct., 410 F. 3d 602, 604, n. 1 
+(CA9 2005). 
+3To be sure, “Congress . . . may explicitly empower district courts to 
+oversee certain state-court judgments and has done so, most notably, in
+authorizing federal habeas review of state prisoners’ petitions.”  Exxon 
+Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 292, n. 8 
+(2005) (citing 28 U. S. C. §2254(a)). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+6 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+the Court held that a Federal District Court lacked juris­
+diction to resolve a case that sought “to have a judgment of
+a circuit court in Indiana, which was affirmed by the Su­
+preme Court of the State, declared null and void” because it 
+violated the Constitution’s due process, contracts, and 
+equal protection clauses. 263 U. S., at 414.  The Court ex­
+plained that “entertain[ing] a proceeding to reverse or mod­
+ify [a] judgment for errors of that character” would be “an 
+exercise of appellate jurisdiction.” Id., at 415–416. As a 
+result, the suit was “plainly not within the District Court’s
+jurisdiction” because the “jurisdiction possessed by the Dis­
+trict Courts is strictly original.”  Ibid.  The Court also laid 
+out the path to challenging a state-court judgment: “If the
+constitutional questions . . . actually arose” in the suit, “it 
+was the province and duty of the state courts to decide 
+them” in the first instance. Id., at 415.  “If the decision was 
+wrong, that did not make the judgment void, but merely left
+it open to reversal or modification in an appropriate and
+timely appellate proceeding,” including through appellate
+review in this Court. Ibid. 
+ Second, in District of Columbia Court of Appeals v. Feld­
+man, 460 U. S. 462 (1983), the Court held that a Federal
+District Court lacked jurisdiction to “review” a final judicial 
+determination of the D. C. high court because such 
+“[r]eview . . . can be obtained only in this Court” under 
+§1257. Id., at 476, 482.  The plaintiffs there had challenged 
+as unconstitutional a court rule requiring D. C. bar appli­
+cants to have graduated from an approved law school.  They 
+had also sought a waiver of that rule. This Court held that 
+the Federal District Court had no jurisdiction to review the
+D. C. high court’s denial of the plaintiffs’ waiver petitions,
+but possessed jurisdiction to adjudicate the validity of the
+rule itself because, in the latter situation, the “district court 
+is not reviewing a state-court judicial decision.”  Id., at 486. 
+Rooker and Feldman are thus built on two closely related 
+bases of reasoning. 
+The first is that, when plaintiffs 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+“essentially invit[e] federal courts of first instance to review
+and reverse unfavorable state-court judgments,” they are
+seeking an exercise of appellate jurisdiction.  See Exxon, 
+544 U. S., at 283–284 (describing Rooker and Feldman).
+The second is that such “appellate jurisdiction to reverse or 
+modify a state-court judgment is lodged, . . . by 28 U. S. C. 
+§1257, exclusively in this Court.”  544 U. S., at 283.  Federal 
+district courts, by contrast, are “empowered to exercise
+[only] original, not appellate, jurisdiction.” Ibid. 
+In the years since Rooker and Feldman, this Court has 
+refused to expand the Rooker-Feldman doctrine.4  In the 
+“narrow ground occupied by Rooker-Feldman,” however, 
+the Court has repeatedly reaffirmed its rule. Exxon, 544 
+U. S., at 284.  In Exxon, the Court held that the “Rooker-
+Feldman doctrine . . . is confined to cases of the kind from 
+which the doctrine acquired its name: cases brought by
+state-court losers complaining of injuries caused by state-
+court judgments rendered before the district court proceed­
+ings commenced and inviting district court review and 
+—————— 
+4For instance, this Court has held that Rooker-Feldman does not apply 
+when the federal plaintiff “was not a party in the state court” because 
+that plaintiff would not have been in any “position to ask this Court to 
+review the state court’s judgment.” Johnson v. De Grandy, 512 U. S. 997, 
+1006 (1994); see Lance v. Dennis, 546 U. S. 459, 466 (2006) (per curiam)
+(The “Rooker-Feldman doctrine does not bar actions by nonparties to the
+earlier state-court judgment” even if “they could be considered in privity 
+with a party to the judgment”).  This Court has also held that Rooker-
+Feldman does not apply when there is parallel litigation, such as when
+a party files a federal action raising the same claim as one in a state court 
+action that has not yet reached a judgment.  Exxon, 544 U. S., at 293– 
+294. Finally, this Court has held that Rooker-Feldman bars suits “chal­
+leng[ing]” an “adverse” state-court decision, but does not bar a suit chal­
+lenging a “statute or rule governing th[at] [state-court] decision.”  Skin­
+ner v. Switzer, 562 U. S. 521, 532 (2011); see also Reed v. Goertz, 598 
+U. S. 230, 235 (2023). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+rejection of those judgments.”  544 U. S., at 284.5  In those 
+cases, Rooker-Feldman continues to require “dismiss[al] for 
+want of subject-matter jurisdiction.”  544 U. S., at 284; see 
+also Lance v. Dennis, 546 U. S. 459, 466 (2006) (per curiam)
+(“The doctrine applies only in ‘limited circumstances’ . . . 
+where a party in effect seeks to take an appeal of an unfa­
+vorable state-court decision to a lower federal court”); Reed 
+v. Goertz, 598 U. S. 230, 235 (2023) (“Th[e] doctrine prohib­
+its federal courts from adjudicating cases brought by state-
+court losing parties challenging state-court judgments”). 
+B 
+Under these precedents, T. M.’s case falls within “the
+narrow ground occupied by Rooker-Feldman.” Exxon, 544 
+U. S., at 284.  T. M. is complaining of injuries caused by,
+and is seeking relief from, the state-court judgment itself,
+arguing that the consent order violates her federal and 
+state due process rights and was entered into under duress. 
+See App. 40–45 (complaint alleging injuries stemming from 
+the consent order). The consent order was rendered 10 days
+before T. M. commenced this federal lawsuit.  T. M. plainly
+seeks “review and rejection” of the consent order by asking
+the District Court to “[d]eclare that the ‘Consent Order’” is
+“unconstitutional, unenforceable, and void ab initio” and to 
+enjoin “enforcement of the ‘Consent Order.’”  139 F. 4th, at 
+347. Thus, T. M.’s case is the “‘paradigm situation in which 
+Rooker-Feldman precludes a federal district court from pro­
+ceeding’”: She does not like the result reached in state court 
+—————— 
+5 Exxon elsewhere also noted that in both Rooker and Feldman, the 
+federal plaintiffs sued “after the state proceedings ended.”  544 U. S., at 
+291. The dissent argues that this fact was a “key featur[e]” of those cases, 
+post, at 6–7 (opinion of BARRETT, J.), but Exxon never mentioned this fact 
+in the cited “hold[ing]” when it described the “kind” of cases to which 
+Rooker-Feldman still applies.  See 544 U. S., at 284.  Needless to say, 
+neither Rooker nor Feldman constrained their rules of decision to cases 
+that perfectly match their facts.  
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+9 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+and “repaired to federal court to undo the [state] judgment
+in [her] favor.” Exxon, 544 U. S., at 293. 
+III 
+Instead of disputing any of the points discussed above,6 
+T. M. asks this Court to add a new requirement to the 
+Rooker-Feldman doctrine.  In T. M.’s view, endorsed by the 
+dissent, the Court should adopt a new rule specifying that 
+Rooker-Feldman bars only federal suits seeking review and 
+rejection of “[f]inal judgments” that are “rendered by the
+highest court of a State in which a decision could be had,” 
+28 U. S. C. §1257(a).  See Brief for Petitioner 19; post, at 6 
+(opinion of BARRETT, J.). Because that rule is inconsistent 
+with the Court’s precedents, risks producing anomalous re­
+sults, and undermines federalism interests, the Court de­
+clines to adopt it. 
+A 
+T. M.’s theory, echoed by the dissent, fails because it re­
+quires a reimagining, rather than an application, of the 
+Court’s Rooker-Feldman precedents. Taking T. M.’s argu­
+ment step-by-step illustrates the point.
+In T. M.’s view, Rooker-Feldman has never rested on any 
+distinction between what, in substance, qualifies as original 
+and appellate jurisdiction.  Instead, on her theory, an action
+commenced in federal district court “seeking the adjudica­
+tion of a freestanding [federal-question] cause of action” al­
+ways technically “invok[es] the district court’s original ju­
+risdiction” under 28 U. S. C. §1331 and is akin to a 
+collateral attack. Brief for Petitioner 32; see post, at 2–3 
+(opinion of BARRETT, J.). Therefore, as T. M. sees things, 
+—————— 
+6In the Fourth Circuit, T. M. contended that she was not a “ ‘state­
+court loser’ ” and that her suit was “really about injuries inflicted by the 
+medical center rather than the consent order,” but the Fourth Circuit 
+rejected those arguments and she has not raised them here.  139 F. 4th, 
+at 350–352. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+10 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+the Court’s prior Rooker-Feldman cases should not be read 
+to evince any concern about district courts exercising what
+amounts to appellate jurisdiction over state-court judg­
+ments, but instead should be read as relying on a strict neg­
+ative inference, from §1257, that when this Court has juris­
+diction over a state-court judgment, district courts must 
+not.  In T. M.’s view, it follows from here that, for Rooker-
+Feldman to bar a federal suit, it is not enough that a state-
+court loser seeks what is effectively appellate review of
+prior state-court judgment.  For T. M., the judgment under
+attack must be a “[f]inal judgmen[t] or decre[e] rendered by 
+the highest court of a State in which a decision could be 
+had,” §1257(a), at the time the federal suit is initiated, be­
+cause only then does this Court gain jurisdiction over a 
+state-court judgment.
+T. M.’s theory cannot be squared with this Court’s prece­
+dents, which plainly adopted a different, more functional
+view of original and appellate jurisdiction than what T. M.
+advances here. In Rooker, for example, it was true that the
+judgment at issue had been affirmed by the state high court 
+by the time the federal suit was filed, but nothing in this
+Court’s reasoning suggested that the outcome would have 
+been different had the judgment still been on appeal.  There 
+(as here), Rooker’s federal suit sought to “reverse or modify
+the [state-court] judgment,” which the Court held would be
+an “exercise of appellate jurisdiction,” 263 U. S., at 416, and 
+not a collateral attack invoking original jurisdiction.  There 
+(as here), the District Court would lack such “appellate” ju­
+risdiction because it has “strictly original” jurisdiction. 
+Ibid. There (as here), it would be the “province and duty of 
+the state courts to decide” the federal questions first, and 
+“[i]f the decision was wrong,” Rooker could seek “reversal or 
+modification in an appropriate and timely appellate pro­
+ceeding,” including in this Court under §1257. Id., at 415. 
+Later cases delineating the bounds of Rooker-Feldman, 
+see n. 4, supra, confirmed the understanding that Rooker­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+11 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+Feldman bars suits in federal district court that “see[k] 
+what in substance would be appellate review of [a] state 
+judgment,” regardless of whether the judgment formally 
+falls within this Court’s §1257 jurisdiction. Johnson v. De 
+Grandy, 512 U. S. 997, 1005–1006 (1994).  As this Court ex­
+plained in Exxon, the doctrine “‘recognizes that 28 U. S. C. 
+§1331 is a grant of original jurisdiction, and does not au­
+thorize district courts to exercise appellate jurisdiction over
+state-court judgments, which Congress has reserved to this
+Court, see §1257(a).’”  544 U. S., at 292 (quoting Verizon 
+Md. Inc. v. Public Serv. Comm’n of Md., 535 U. S. 635, 644, 
+n. 3 (2002)).  In Lance, too, this Court emphasized that 
+“[t]he doctrine applies only in ‘limited circumstances’ where 
+a party in effect seeks to take an appeal of an unfavorable
+state-court decision to a lower federal court.”  546 U. S., at 
+466 (citation omitted). None of these cases suggests that
+district courts have jurisdiction to review state-court judg­
+ments, and declare them void, so long as the judgments are
+not yet within this Court’s §1257 jurisdiction.   
+ In fact, Feldman explicitly rejected that notion.  There, 
+the Court addressed a Fifth Circuit case holding that 
+Rooker did not apply because the judgment “‘could not have
+been reviewed on a writ of certiorari from the United States 
+Supreme Court,’” given the plaintiff ’s failure to raise the 
+relevant federal issue in state court.  460 U. S., at 483, n. 16 
+(quoting Dasher v. Supreme Ct. of Tex., 658 F. 2d 1045, 
+1051 (1981)). The Court rejected that reasoning as “flawed” 
+because “the fact that we may not have jurisdiction to re­
+view a final state-court judgment . . . does not mean that a 
+United States district court should have jurisdiction over 
+the claims.” 460 U. S., at 484, n. 16.  After all, the Court 
+explained, “‘lower federal courts possess no power whatever 
+to sit in direct review of state court decisions.’” Id., at 483, 
+n. 16; but see id., at 490 (Stevens, J., dissenting) (arguing,
+as T. M. and the dissent do here, that the Feldman majority
+improperly “fail[ed] to distinguish between . . . appellate 
+
+ 
+ 
+ 
+   
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+12 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+review and collateral attack”). Feldman thus explicitly re­
+jected T. M.’s view that Rooker rested solely on a strict neg­
+ative inference from §1257.7 
+The dissent, for its part, admits that this Court has relied
+on both §§1331 and 1257 in justifying Rooker-Feldman, but 
+contends that Exxon “buried” and “discarded” the §1331 ra­
+tionale. Post, at 7–8. Had the Court in Exxon intended to 
+bury or discard the §1331 rationale, one might have ex­
+pected it to say so rather than to quote affirmatively a case 
+that directly describes the doctrine as resting on both 
+§§1331 and 1257. See 544 U. S., at 292 (citing Verizon Md. 
+Inc., 535 U. S., at 644, n. 3).  Moreover, Exxon acknowl­
+edged, without disapproval, Rooker’s reasoning that 
+“[f]ederal district courts . . . lacked the requisite appellate
+authority, for their jurisdiction was ‘strictly original.’” 544 
+U. S., at 284. It also summarized Rooker and Feldman as 
+“essentially invit[ing] federal courts of first instance to re­
+view and reverse unfavorable state-court judgments,” 544 
+U. S., at 283, and it held that Exxon’s federal suit did not 
+fall within Rooker-Feldman because Exxon did “not repai[r] 
+to federal court to undo the Delaware judgment in its fa­
+vor,” 544 U. S., at 293.  All these statements are only con­
+sistent with the view that Rooker-Feldman is based on both 
+§§1331 and 1257, and none even suggests that the state­
+—————— 
+7Indeed, even though the state-court judgment in Rooker v. Fidelity 
+Trust Co., 263 U. S. 413 (1923), was a final judgment of a state high 
+court, it did not fall within this Court’s certiorari jurisdiction under
+§1257 either because the Court’s jurisdictional deadline for filing the pe­
+tition for a writ of certiorari had passed.  See id., at 416; this Court’s Rule 
+13.2 (describing civil filing deadline as jurisdictional). Still, the Court 
+reasoned, “an aggrieved litigant cannot be permitted to do indirectly” in
+federal district court “what he no longer can do directly” in this Court. 
+263 U. S., at 416.  True, T. M. seeks federal appellate review of a state-
+court judgment prematurely (before receiving a final judgment this
+Court can review), whereas Rooker tried to do so belatedly.  Either way, 
+the same principle applies: T. M. “cannot be permitted to do indirectly”
+what she cannot yet “do directly.”  Ibid. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+13 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+court judgment at issue must be a “[f]inal judgmen[t] . . . 
+rendered by the highest court of a State” under §1257(a).8 
+Ultimately, adopting T. M. and the dissent’s rule would 
+require the Court to abandon a central part of Rooker’s rea­
+soning and reinterpret the doctrine to rest solely on a strict
+negative inference from §1257. See Brief for Petitioner 33– 
+34 (acknowledging that the Court’s precedents have rested 
+in part based on the distinction between original and appel­
+late jurisdiction); post, at 3 (acknowledging that Rooker 
+rested in part on §1331). The Court declines to do so. 
+B 
+The fact that T. M. and the dissent’s rule departs from
+this Court’s precedents is enough to affirm the dismissal of 
+T. M.’s suit under Rooker-Feldman. If more is necessary, 
+however, the Court also declines to distort the Rooker-Feld­
+man doctrine in service of a rule that would create anoma­
+lous outcomes and undermine the federalism principles
+upon which the doctrine rests.  The upshot of T. M. and the 
+dissent’s rule would be that federal district courts could not 
+exercise jurisdiction if a plaintiff seeks review of a state 
+high-court judgment, but they could exercise jurisdiction if 
+—————— 
+8The dissent also appears to equate Exxon’s reference to the fact that 
+“‘state proceedings [had] ended’” in Rooker and Feldman with a judg­
+ment being final under §1257. Post, at 6 (emphasis deleted).  Exxon, 
+however, did not itself draw that connection.  Likely as a result, many of
+the Circuits that interpreted Exxon to hold that Rooker-Feldman applies 
+only when state-court proceedings have “ended” have not adopted T. M.
+and the dissent’s §1257 finality rule.  See, e.g., Federación de Maestros 
+de P. R. v. Junta de Relaciones del Trabajo de P. R., 410 F. 3d 17, 24–25 
+(CA1 2005); Malhan, 938 F. 3d, at 459–460 (collecting cases).  They in­
+stead reasoned that a state proceeding may “end” even without a final 
+judgment from a state high court, such as when a state-court loser does
+not appeal to the state high court. See Federación de Maestros, 410 F. 3d, 
+at 24–25.  Based on this reasoning, these Circuits created multipart anal­
+yses to determine whether state proceedings have functionally “ended” 
+(and thus Rooker-Feldman may apply), see 410 F. 3d, at 24–25, which
+neither the dissent nor T. M. embrace. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+14 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+the plaintiff seeks the same review of a state lower-court 
+judgment while that judgment is on appeal in the state-
+court system.  That makes little sense. 
+To start, allowing federal district courts to review state-
+court judgments while they are on appeal in the state-court 
+system would undermine the “[c]ooperation and comity” on 
+which our federal system is built. Ruhrgas AG v. Marathon 
+Oil Co., 526 U. S. 574, 586 (1999).  Indeed, that is the reason 
+why, “ever since 1789, Congress has granted this Court the 
+power to intervene in State litigation only after ‘the highest 
+court of a State in which a decision in the suit could be had’ 
+has rendered a ‘final judgment.’”  Radio Station WOW, Inc. 
+v. Johnson, 326 U. S. 120, 124 (1945); see North Dakota Bd. 
+of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U. S. 156, 
+159 (1973) (explaining that one of §1257’s purposes is to
+“limi[t] review of state court determinations of federal con­
+stitutional issues to leave at a minimum federal intrusion 
+in state affairs”). It is difficult to see why Congress would 
+have authorized district courts to review final state-court 
+judgments pending appeal in state court when it did not au­
+thorize this Court to do so. 
+T. M. and the dissent’s rule also would produce arbitrar­
+ily different results depending on when, exactly, a federal 
+suit seeking review of a state-court judgment is filed.  In 
+their view, a district court can review a state-court judg­
+ment so long as it has not been affirmed by the state high
+court by the time the federal action is filed.  Yet a state high
+court may well affirm such a judgment while such a federal 
+action is still pending. In that event, the plaintiff would be
+in the exact same situation Rooker disapproved: seeking to
+have declared null and void “a judgment of a [state court], 
+which was affirmed by the Supreme Court of the State.” 
+263 U. S., at 414.  Yet, under T. M. and the dissent’s rule, a 
+district court would have jurisdiction to proceed simply be­
+cause the plaintiff filed her federal suit while the state ap­
+pellate proceedings were pending, rather than waiting for 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+15 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+the state high court to act. Such a rule would only encour­
+age parties to file earlier in federal court, duplicating their
+efforts even though the state process may well resolve the
+dispute in their favor.
+T. M., her amici, and the dissent respond that federal
+courts have at their disposal various abstention and preclu­
+sion doctrines, which generally prevent federal courts from
+interfering with state proceedings or bar parties from relit­
+igating issues already decided.  According to T. M., those 
+doctrines prevent federal-court intervention while state ap­
+pellate proceedings are ongoing and thus do “nearly all,” 
+but apparently not all, “of the work that Rooker-Feldman 
+does.” Reply Brief 18; see Brief for Federal Courts Scholars 
+as Amici Curiae 7–16 (listing nine doctrines); see also post, 
+at 4–5 (opinion of BARRETT, J.) (describing preclusion and 
+abstention doctrines).  It is unclear, however, if such doc­
+trines even apply in cases, like this one, where a plaintiff
+does not attempt to relitigate the same claims in state and
+federal forums but rather complains of injuries that stem
+directly from a state-court judgment.  See Letter Order in 
+No. 1:23–cv–1684 (D Md.), ECF Doc. 27, pp. 3–5 (holding 
+that neither abstention under Younger v. Harris, 401 U. S. 
+37 (1971), nor Colorado River Water Conservation Dist. v. 
+United States, 424 U. S. 800 (1976), nor Maryland’s collat­
+eral-attack doctrine applied to this case); see also Lucky 
+Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 590 
+U. S. 405, 411 (2020) (explaining that issue preclusion “pre­
+cludes a party from relitigating an issue actually decided in
+a prior case and necessary to the judgment”). Federalism 
+principles are thus best served by continuing to apply 
+Rooker-Feldman to federal cases in which plaintiffs seek re­
+view of state-court judgments, regardless of whether those 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+16 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+judgments are final trial-court judgments or those of a 
+State’s highest court.9 
+C 
+Finally, T. M. contends that the Court should adopt her
+position for the more practical reason that it will generally 
+cabin Rooker-Feldman, a doctrine she claims has caused 
+confusion and is overused as a docket-clearing mechanism 
+in the lower courts. See Brief for Petitioner 35.  As T. M. 
+admits, however, most of the confusion in the lower courts 
+“stems from the need to determine when a plaintiff is seek­
+ing federal ‘review and rejection’ of a state-court judgment.” 
+Id., at 37; see Gilbank v. Wood Cty. Dept. of Human Servs., 
+111 F. 4th 754, 792–798 (CA7 2024) (en banc) (majority 
+opinion of Kirsch, J.); id., at 760, 769–778 (dissenting opin­
+ion of Hamilton, J.) (describing the confusion over the “‘re­
+view and rejection’” requirement). That “review and rejec­
+tion” question is not disputed in this case, so adopting
+T. M.’s rule does nothing to ameliorate any confusion over 
+that distinct issue.10 
+—————— 
+9Strangely, the dissent resists the idea that federalism principles play 
+any role in Rooker-Feldman at all.  Post, at 9–11.  It is true that neither 
+Rooker nor Feldman uses the word “federalism,” but both discuss the ap­
+propriate roles of the state and federal courts.  See supra, at 5–7. The 
+dissent’s resistance to acknowledging federalism values here is also in­
+consistent with its own interpretation of Rooker-Feldman as a “ ‘§1257 
+Rule.’ ” Post, at 11. The Court has consistently explained that §1257’s 
+finality requirement rests in part on principles of federalism.  See Penn­
+sylvania v. Ritchie, 480 U. S. 39, 48–49, n. 7 (1987) (“[T]he justifications
+for the finality doctrine” include “efficiency, judicial restraint, and feder­
+alism”); Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945) 
+(similar). 
+10Nor did the Fourth Circuit apply an overly broad interpretation of
+“review and rejection” in this case.  It emphasized that T. M.’s complaint, 
+which plainly sought to void and enjoin the consent order, sat “[i]n con­
+trast” to two other federal actions T. M. filed, neither of which were dis­
+missed under Rooker-Feldman. 139 F. 4th, at 352, n. 2. The first was a 
+due-process suit, which she voluntarily dismissed but which Rooker­
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+17 
+ 
+Cite as: 608 U. S. ____ (2026) 
+Opinion of the Court 
+In fact, T. M. and the dissent’s rule would needlessly com­
+plicate the Rooker-Feldman analysis. 
+It is not always
+straightforward to determine whether a given state-court
+judgment is a reviewable final judgment under §1257(a) be­
+cause that question requires determining whether the judg­
+ment is both “subject to no further review or correction in 
+any other state tribunal” and also “an effective determina­
+tion of the litigation.” Market Street R. Co. v. Railroad 
+Comm’n of Cal., 324 U. S. 548, 551 (1945).  Nor is it neces­
+sarily clear when state proceedings have “ended.”  See Fed­
+eración de Maestros de P. R., 410 F. 3d, at 24–25 (describing 
+test to determine whether proceedings have functionally
+“ended”). For example, in this case, the parties dispute
+whether the consent order is appealable under Maryland 
+law. See Brief in Opposition 23–24; Reply Brief for Peti­
+tioner 9–10. If it is not, then the consent order may be final 
+for §1257 purposes and the “end” of state-court proceedings.
+Further, even if a state judgment is technically subject to 
+further review in state proceedings, it may nevertheless be 
+reviewable by this Court under §1257 under a limited set of 
+circumstances.  See Cox Broadcasting Corp. v. Cohn, 420 
+U. S. 469, 477–486 (1975) (describing four sets of circum­
+stances within the Court’s “pragmatic approach” to final­
+ity). Thus, T. M. and the dissent’s rule would both fail to 
+address the source of confusion in the current Rooker-Feld­
+man doctrine and add a new source to the mix. 
+Finally, the animating force behind many of T. M.’s and 
+the dissent’s arguments appears to be the belief that Rooker 
+—————— 
+Feldman would not have barred because it was commenced before the 
+consent order was entered.  139 F. 4th, at 352, n. 2.; see Exxon, 544 U. S., 
+at 293–294.  The second was a federal discrimination suit, which was 
+dismissed on the merits and did not implicate Rooker-Feldman because, 
+though it involved the same parties and facts, the suit did not seek re­
+view and rejection of the consent order.  139 F. 4th, at 352, n. 2.; see Doe 
+v. University of Md. Medical System Corp., 2025 WL 3553026, *1–*2 
+(CA4, Dec. 11, 2025) (describing T. M.’s claims). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+18 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+Opinion of the Court 
+and Feldman were wrongly decided and so should be cab­
+ined whenever possible, if not outright overruled.  Cf. post, 
+at 2–5 (raising doubts about Rooker-Feldman’s conceptual
+basis).  This issue is not fairly included in the question pre­
+sented and was not pressed at the certiorari stage.  See this 
+Court’s Rule 14.1(a). 
+IV 
+The Court today neither expands nor constrains Rooker-
+Feldman. Instead, the Court leaves the doctrine as it found 
+it: narrowly confined to “cases brought by state-court losers
+complaining of injuries caused by state-court judgments
+rendered before the district court proceedings commenced 
+and inviting district court review and rejection of those 
+judgments.” Exxon, 544 U. S., at 284.  Because T. M.’s suit 
+falls within these strict limits, the judgment of the Court of
+Appeals for the Fourth Circuit is affirmed. 
+It is so ordered. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+SUPREME COURT OF THE UNITED STATES 
+No. 25–197 
+T. M., PETITIONER v. UNIVERSITY OF MARYLAND 
+MEDICAL SYSTEM CORPORATION, ET AL. 
+ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
+APPEALS FOR THE FOURTH CIRCUIT 
+[June 18, 2026] 
+JUSTICE THOMAS, concurring. 
+When you lose in trial court, you go to an appeals court.
+The so-called Rooker-Feldman doctrine reflects that com­
+monsense understanding.  See Rooker v. Fidelity Trust Co., 
+263 U. S. 413 (1923); District of Columbia Court of Appeals 
+v. Feldman, 460 U. S. 462 (1983).  At its core, the doctrine 
+says that parties who lose in state trial court do not get to 
+appeal to a federal trial court. Instead, they may take their
+appeal to a state appeals court and, if a federal statute al­
+lows, ultimately seek review in this Court. That “basic fact” 
+has been a part of our law for more than 200 years.  Reed v. 
+Goertz, 598 U. S. 230, 244 (2023) (THOMAS, J., dissenting). 
+The Court’s opinion thus properly rejects petitioner’s quest 
+to reimagine, artificially cabin, or overrule Rooker-Feld­
+man. Ante, at 5–18.  I join it in full.  I write separately to 
+explain why Rooker, properly understood, is correct as an 
+original matter. 
+I 
+A unanimous three-page opinion, Rooker was uncontro­
+versial in its day. It started as an ordinary lawsuit.  Wil­
+liam and Dora Rooker sued Fidelity Trust Company in state 
+court. See Rooker v. Fidelity Trust Co., 191 Ind. 141, 143, 
+131 N. E. 769, 770 (1921).  The trial court entered judgment 
+against the Rookers. Id., at 154–155, 131 N. E., at 773.  The 
+
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+Rookers sought review in the State Supreme Court and lost. 
+Id., at 163, 131 N. E., at 776.  This Court denied certiorari. 
+Rooker v. Fidelity Trust Co., 259 U. S. 580 (1922).  The 
+Rookers then sought review from this Court on a writ of er­
+ror instead. Rooker v. Fidelity Trust Co., 261 U. S. 114, 116 
+(1923). But, the Court declined to grant relief on their
+claims of constitutional errors in the state-court judgment 
+and dismissed the writ.  Id., at 116–118. 
+Unsatisfied, the Rookers filed a bill in equity in Federal
+District Court. Rooker, 263 U. S., at 414.  They asked the 
+Federal District Court to declare the state trial court’s judg­
+ment “null and void” on the ground that it “was rendered 
+and affirmed in contravention of the” Constitution.  Id., at 
+414–415. The District Court dismissed the bill for lack of 
+jurisdiction, and this Court affirmed that “plainly” correct
+decree. Id., at 415, 417. “Under the legislation of Con­
+gress,” this Court recognized, “no court of the United States 
+other than this Court could entertain a proceeding to re­
+verse or modify the judgment for” constitutional errors.  Id., 
+at 416. “To do so would be an exercise of appellate jurisdic­
+tion.” Ibid. “The jurisdiction possessed by the District
+Courts is strictly original.”  Ibid. Accordingly, the Court 
+held that district courts have no jurisdiction to “get rid of ” 
+state-court judgments even “for alleged errors of law.”  Ibid. 
+Rooker was thus based on two premises.  See ante, at 5– 
+7, 9–10. First, “to reverse or modify the” allegedly errone­
+ous judgment of another court is to “exercise . . . appellate
+jurisdiction.” Rooker, 263 U. S., at 416.  Second, “[t]he ju­
+risdiction possessed by the District Courts is strictly origi­
+nal”; only “this Court” has “appellate jurisdiction” over 
+state-court judgments. Ibid.  From these two premises, it 
+follows that district courts lack jurisdiction to reverse or
+modify the allegedly erroneous judgments of state courts. 
+The conclusion follows from the premises, so the only ques­
+tion is whether the premises are true. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+  
+3 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+II 
+Rooker’s first premise was recognized long before Rooker, 
+and its second has been an indubitable “fact of federal stat­
+utory law” for more than 200 years. Reed, 598 U. S., at 244 
+(opinion of THOMAS, J.). 
+A 
+The power to revise or modify another court’s judgment
+or decree has been recognized as an exercise of appellate
+jurisdiction from before the ratification of the Constitution. 
+1 
+The Constitution vests the “judicial Power” in this Court
+and in the “inferior Courts” that Congress creates.  Art. III, 
+§1. The jurisdiction of federal courts to exercise that judi­
+cial power is limited to “Cases” and “Controversies.”  §2, cl.
+1. That jurisdiction, in turn, comes in two types: “original”
+and “appellate.” §2, cl. 2.  If a court exercises appellate ju­
+risdiction, it does not exercise original jurisdiction.  Mar-
+bury v. Madison, 1 Cranch 137, 175 (1803); 3 J. Story, Com­
+mentaries on the Constitution of the United States §1698,
+p. 574 (1833) (Story).
+Original jurisdiction is “[a] court’s power to hear and de­
+cide a matter before any other court can review the matter.”
+Black’s Law Dictionary 856 (7th ed. 1999).  In a typical orig­
+inal case, a plaintiff sues a defendant.  The plaintiff com­
+plains of an injury that the defendant’s allegedly illegal con­
+duct caused and “seeks a remedy that runs against the
+defendant.” Reed, 598 U. S., at 243 (opinion of THOMAS, J.).  
+The case is “original” inasmuch as there is no earlier pro­
+ceeding in which another court had already “determine[d] 
+that defendant’s duties or liabilities (e.g., a judgment for 
+money damages or an injunction).” Ibid. 
+Unlike the plaintiff in a typical original action, the appel­
+lant in a typical appeal cannot simply complain of an injury 
+that the other party caused before a court has spoken. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+4 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+Instead, “the subject matter” under consideration “has al­
+ready been instituted in, and acted upon, by some other 
+court.” 3 Story §1755, at 627.  As the party who lost in the 
+other court, the appellant “complain[s] of an injury caused
+by” that court’s allegedly erroneous judgment.  Exxon Mobil 
+Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 291 
+(2005). He thus seeks to invoke the court’s jurisdiction to 
+remedy an injury of that description and, ordinarily, the ap­
+pellate court cannot directly redress the injury that caused 
+the plaintiff to file his original suit.  The remedy, instead,
+consists in “correcting that judicial action (e.g., reversal or 
+vacatur of the challenged judgment),” not in awarding dam­
+ages. Reed, 598 U. S., at 244 (opinion of THOMAS, J.).
+When a party asks one court to revise another’s judg­
+ment, he invokes what the Constitution calls “appellate Ju­
+risdiction.” Art. III, §2, cl. 2.  Appellate jurisdiction is a
+court’s “power to revise the judgments rendered” by other 
+courts. 1 J. Kent, Commentaries on American Law 353 
+(11th ed. 1867) (Kent); accord, 3 W. Blackstone, Commen­
+taries on the Laws of England 56 (1768) (Blackstone) (“re­
+verse judgments in certain suits originally begun in [an­
+other] court”); ibid. (high court had appellate jurisdiction to
+correct “mistake[s] of the law, committed by [other] 
+courts”); W. Rawle, A View of the Constitution 241 (2d ed.
+1829) (Rawle) (“revision of the [decisions] of other courts”); 
+3 Story 626 (power to “revis[e] and correc[t] the proceedings 
+in a cause already instituted”); 1 G. Curtis, Commentaries 
+on the Jurisdiction, Practice, & Peculiar Jurisprudence of
+the Courts of the United States §113, p. 131 (1854) (Curtis)
+(same); Black’s Law Dictionary 79 (1891) (same); 1 A. Bur-
+rill, A New Law Dictionary 79 (1850) (“review the proceed­
+ings of another [court]”).  For that reason, exercising that
+revising power over the judgments of “state tribunals” in 
+
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+5 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+cases involving “[federal] questions” is appellate in nature.
+1 Kent 353.1 
+The Founders accepted this straightforward account of 
+appellate jurisdiction without reservation. The Articles of 
+Confederation gave the Confederation Congress authority
+to create courts with “appellate power . . . to be exercised in 
+revising the decisions of state tribunals” in cases of cap­
+tures. Martin v. Hunter’s Lessee, 1 Wheat. 304, 345 (1816) 
+(Story, J., for the Court); see Art. IX.  In 1780, the Confed­
+eration Congress created a court under that authority 
+whose jurisdiction allowed it to “hear new evidence without
+deference to state courts’” legal conclusions. W. Pryor, The
+Appellate Jurisdiction Clause, in The Heritage Guide to the 
+Constitution 499 (3d ed. 2025) (Pryor).  That power was “ap­
+pellate” in nature precisely because it was the “power to re­
+vise the decisions of state courts.” 
+Hunter’s Lessee, 1 
+Wheat., at 345; 3 Story 605–606. 
+When the Founders deliberated about whether to replace
+the Articles with the Constitution, all maintained the same 
+view about the nature of appellate jurisdiction. At that 
+time, different “technical sense[s] ha[d] been affixed to the
+term ‘appellate’” such that any technical interpretation 
+would “not be understood in the same sense” in different 
+jurisdictions. The Federalist No. 81, pp. 488–489 (C. Ros­
+siter ed. 1961) (A. Hamilton).  That fact showed “the impro­
+priety of a technical interpretation.”  Id., at 489; accord, 
+ante, at 10.  Instead, the Federalists thought that the term 
+“appellate jurisdiction” in the proposed Constitution 
+—————— 
+1To “revise” originally meant to “review” for error.  2 N. Webster, An 
+American Dictionary of the English Language (1828); The Federalist No.
+81, p. 489 (C. Rossiter ed. 1961) (A. Hamilton).  The revising power did 
+not require literally changing another court’s judgment.  See, e.g., 
+Ex parte Bollman, 4 Cranch 75, 101 (1807) (“grant[ing]” motion “for a 
+habeas corpus to the marshal of the district of Columbia,” even though it 
+did not change the lower court’s order, is an exercise of “appellate” juris­
+diction); Black’s Law Dictionary 331 (12th ed. 2024) (“A petition for a 
+writ of habeas corpus is one type of collateral attack”); infra, at 8–11. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+6 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+“denotes nothing more than the power of one tribunal to re­
+view the proceedings of another, either as to the law or fact,
+or both.” The Federalist No. 81, at 489.  For their part, the 
+Anti-Federalists seemed to agree.  They worried that “ap­
+pellate jurisdiction,” as used in the Constitution, would au­
+thorize civil-law “appeals,” which involved the power to “re­
+examine the whole merits of ” a previously initiated case, 
+including review of facts.  2 H. Storing, The Complete Anti-
+Federalist 433 (1981); see also United States v. Wonson, 28 
+F. Cas. 745, 750 (No. 16,750) (CC Mass. 1812) (Story, J.). 
+All appeared to agree, however, that “the revising power” of 
+a court is “appellate” in nature. Hunter’s Lessee, 1 Wheat., 
+at 344. 
+Traditionally, the “most usual modes of exercising appel­
+late jurisdiction” were “by a writ of error, or by an appeal.”2 
+3 Story §1756, at 627. But, courts could also exercise appel­
+late jurisdiction through writs of habeas corpus or manda­
+mus, provided that granting such a writ would involve re­
+vising the decision of another court on the merits.  Ibid.; 1 
+Curtis §113, at 131; Marbury, 1 Cranch, at 175. Today, this
+Court usually exercises appellate jurisdiction by writs of
+certiorari. 28 U. S. C. §§1257(a), 1254(1).  But, it also hears 
+“appeal[s],” in some cases, §1253, applications for stays of 
+lower court judgments, in others, §2101(f ), and even peti­
+tions for mandamus, §1651(a). 
+—————— 
+2A writ of error was “a process of common law origin; and it remove[d] 
+nothing for re-examination, but the law.”  3 Story §1756, at 628.  In the 
+technical sense, an appeal was “a process of civil law origin, and re­
+move[d] a cause, entirely subjecting the fact, as well as the law, to review
+and a re-trial.”  Id., at 627–628.  But, “appeal” is also used “in legal lan­
+guage to denote the nature of appellate jurisdiction, as distinguished
+from original jurisdiction, without regard to the particular mode, by
+which a cause is transmitted to a superior jurisdiction.”  United States v. 
+Wonson, 28 F. Cas. 745, 748, 750 (No. 16,750) (CC Mass. 1812) (Story, 
+J.).  In that sense, writs of error were exercises of appellate jurisdiction
+at common law; appeals were exercises of appellate jurisdiction in equity. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+Thus, whether jurisdiction is appellate turns not on the
+specific mode of proceeding but on the nature of the relief 
+sought. See Reed, 598 U. S., at 244 (opinion of THOMAS, J.). 
+Scholars and jurists have long recognized that “any . . . 
+mode in which the judgment or proceedings of an inferior
+tribunal c[ould] be revised” was an exercise of appellate ju­
+risdiction. 1 Curtis §113, at 131 (emphasis added).  A court 
+therefore acts as “a court of appeal” whenever it “correct[s]
+the errors of other jurisdictions,” 3 Blackstone 55, whatever 
+the mode “by which a cause is transmitted to” it, Wonson, 
+28 F. Cas., at 748; accord, 3 Story §1755, at 627 (“[W]here 
+the object is to revise a judicial proceeding, the mode is 
+wholly immaterial”). 
+2 
+This Court has long understood that to exercise the revis­
+ing power is to exercise appellate jurisdiction, regardless of 
+the form of the exercise. 
+Most law students learn as much on the first day of con­
+stitutional-law class. In Marbury v. Madison, the Court 
+considered whether it had the jurisdiction “to issue a man­
+damus” compelling “an officer for the delivery of ” Mar­
+bury’s judicial commission when no other court had before 
+entertained the cause. 1 Cranch, at 175. Writing for the
+Court, Chief Justice Marshall held that the Court lacked 
+such jurisdiction.  The Constitution, he said, “define[d] the 
+jurisdiction of the supreme court by declaring the cases in 
+which it shall take original jurisdiction, and that in all oth­
+ers it shall take appellate jurisdiction.”  Ibid. These cate­
+gories, he reasoned, are mutually exclusive: “[I]n one class
+of cases its jurisdiction is original, and not appellate; in the 
+other it is appellate, and not original.”  Ibid. Because the 
+Constitution did not give the Court original jurisdiction to
+issue mandamus, the Court could do so only if it would “be 
+an exercise of appellate jurisdiction” in the case before it. 
+Ibid. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+The form of proceeding was not dispositive of the ques­
+tion. Even though mandamus was often issued in original 
+cases, and the case was filed first in the Supreme Court, the 
+Court agreed that “appellate jurisdiction may be exercised
+in a variety of forms, and that if it be the will of the legisla­
+ture that a mandamus should be used for that purpose, that
+will must be obeyed.”  Ibid. Because “a mandamus may be 
+directed to courts,” the question became whether, in con­
+text, granting mandamus relief would be appellate in na­
+ture. Ibid. 
+On the facts of the case, the exercise of jurisdiction was 
+original in nature.  There was no decision of another court 
+that this Court could revise.  Chief Justice Marshall recog­
+nized that it “is the essential criterion of appellate jurisdic­
+tion, that it revises and corrects the proceedings in a cause
+already instituted.” Ibid. To issue mandamus “to an officer 
+for the delivery of a paper, is in effect the same as to sustain 
+an original action for that paper, and therefore seems not 
+to belong to appellate, but to original jurisdiction.”  Id., at 
+175–176; accord, ante, at 10. 
+From Marbury’s holding, then, a clear principle emerged: 
+When a court “revises” or “corrects the proceedings in a 
+cause already instituted,” it exercises appellate jurisdic­
+tion; when there is no previous “cause” or judicial proceed­
+ing to revise, it exercises “original” jurisdiction.  1 Cranch, 
+at 175. And, from Marbury’s reasoning, another principle 
+followed: A court can exercise appellate jurisdiction even if 
+the action is filed outside of the most common appellate
+forms, such as a writ of error or a modern appeal, provided 
+that there is another court’s decision to be revised. Ibid. 
+Chief Justice Marshall reaffirmed both principles for the
+Court just a few years later. See Rawle 227–228.  Ex parte 
+Bollman, 4 Cranch 75 (1807), involved two individuals—
+Bollman and Swartwout—who were implicated in the infa­
+mous Burr conspiracy. Both had been jailed by the circuit
+court for the District of Columbia pending their trial.  Id., 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+9 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+at 75–76. And, each sought a writ of habeas corpus from 
+this Court. Id., at 75. The question, as in Marbury, was 
+whether this Court had jurisdiction to issue the writs. This 
+time the Court held that it had such jurisdiction. 
+The arguments before the Court concerned the nature of 
+original and appellate jurisdiction.  Counsel for Bollman ar­
+gued that the Judiciary Act gave “this court the power to
+grant writs of habeas corpus,” and that “congress had au­
+thority, by the constitution,” to give the Court such power. 
+4 Cranch, at 84–85.  But, this second point, he argued, de­
+pended on “whether this power or jurisdiction be in its na­
+ture original or appellate.” Id., at 85. He conceded that, if 
+granting the writ would be an exercise of original jurisdic­
+tion, then Congress could not give this Court the power to
+issue the writ. Id., at 85–86.  “This principle,” he acknowl­
+edged, had been “established by the case of Marbury v. 
+Madison.” Id., at 86. Following Marbury, he argued that
+the “criterion which distinguishes appellate from original 
+jurisdiction, is that it revises and corrects the decisions of
+another tribunal.” 4 Cranch, at 86.  And, the “object of the 
+habeas corpus now applied for,” he urged, “is to revise and 
+correct the proceedings of the Court below . . . so far as re­
+spects the legality of such commitment.” Ibid. 
+Again writing for the Court, Chief Justice Marshall
+agreed with this approach. He began by explaining that
+federal courts, as creatures of “written law,” cannot “trans­
+cend th[e] jurisdiction” that is “defined by written law.”  Id., 
+at 93. “[F]or the meaning of the term habeas corpus,” he 
+said, “resort may unquestionably be had to the common 
+law; but the power to award the writ by any of the courts of 
+the United States, must be given by written law.”  Id., at 
+93–94. So, the question was the same as in Marbury: 
+“whether by any statute, compatible with the constitution
+of the United States, the power to award the writ . . . has 
+been given to this court.”  4 Cranch, at 94. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+10 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+This time, though, Chief Justice Marshall answered yes.
+The Judiciary Act, he concluded, purported to give “the
+power to award writs of habeas corpus in order to examine 
+into the cause of commitment.” 
+Id., at 100.  And, he 
+“acknowledged that the writ was sought in the first in­
+stance in the Supreme Court.” Pryor 500. But, the Consti­
+tution did not stand in the way of the Court’s issuing the 
+writ in the case before it.  Though “the mandamus case” of 
+Marbury required that the Court “would not exercise origi­
+nal jurisdiction,” he explained, “that which the court is now 
+asked to exercise is clearly appellate.” 4 Cranch, at 100– 
+101. He reasoned that the “decision that the individual 
+shall be imprisoned must always precede the application for 
+a writ of habeas corpus.” Id., at 101.  In other words, a court 
+had already addressed the issue of the imprisonment, so 
+there was “a cause already instituted.” Marbury, 1 Cranch, 
+at 175. Because “this writ must always be for the purpose 
+of revising that decision,” he concluded that it is “therefore 
+appellate in its nature.”  4 Cranch, at 101. 
+*
+*
+* 
+ Thus, both Marbury and Bollman support Rooker’s first 
+premise that to reverse or modify the allegedly erroneous 
+judgment of another court is to exercise appellate jurisdic­
+tion. Federal courts must inquire into the nature of the ju­
+risdiction a party seeks to invoke and whether it takes “an
+appellate form,” regardless of the label placed on the paper
+filed in the court.  Ex parte Watkins, 7 Pet. 568, 573 (1833)
+(Story, J., for the Court); accord, ante, at 10. And, they fur­
+ther explain that “seek[ing] to revise the acts of ” another 
+court is “appellate” in nature.  Ex parte Watkins, 7 Pet., at 
+573. Whether the court hears the claim in the form of a 
+mandamus petition as in Marbury, a habeas petition as in 
+Bollman, or a bill in equity as in Rooker, if a party asks one 
+court to revise the judgment of another court for errors of
+law, it invokes appellate jurisdiction.  The question is then 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+11 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+whether the court has revising power to “declar[e]” a state-
+court judgment “a nullity [on the merits].” Voorhees v. 
+Jackson, 10 Pet. 449, 474 (1836). 
+B 
+Congress has long given only this Court, and not inferior
+courts, appellate jurisdiction to revise state-court judg­
+ments. 
+The Constitution defines the limits of this Court’s juris­
+diction. Its “original Jurisdiction” is limited to “Cases af­
+fecting Ambassadors, other public Ministers and Consuls, 
+and those in which a State shall be Party.”  Art. III, §2, cl. 2.
+In “all” other cases, “in Law and Equity,” this Court “shall
+have appellate Jurisdiction,” subject to any “Exceptions,
+and under such Regulations as the Congress shall make.” 
+§2, cls. 1–2. Only this Court “possesses jurisdiction derived
+immediately from the constitution.”  United States v. Hud­
+son, 7 Cranch 32, 33 (1812).
+As creatures of statute, inferior federal courts “possess no
+jurisdiction but what is given them by the power that cre­
+ates them.” Ibid.  They have “none” beyond what Congress 
+“authorize[s].” Ibid. Whether inferior federal courts have 
+revising power thus depends on whether a statute says that 
+they do. C. Williams, Jurisdiction and Practice of Federal 
+Courts 433 (1917) (Williams). Today, statutes say that
+courts of appeals have revising power over district-court 
+judgments, 28 U. S. C. §1291, and that district courts have 
+revising 
+power 
+over 
+bankruptcy-court 
+judgments, 
+§158(a)(1).
+Since the founding, there has been no doubt that inferior 
+“federal” courts have the power “to review the proceedings
+of ” “State courts” only if Congress, in its “discretion,” has 
+given them “appellate jurisdiction” to do so.3 The Federalist 
+—————— 
+3In fact, the only dispute was whether such jurisdiction was constitu­
+tional even if Congress purported to authorize it.  See The Federalist No. 
+82, at 494–495 (A. Hamilton). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+12 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+Nos. 81, 82, at 488–490, 493–495 (A. Hamilton); see also 
+Hudson, 7 Cranch, at 33.  Congress “is not limited by the
+constitution to any particular mode, or time of exercising 
+it,” but there must be a statutory grant of revising power 
+over state-court judgments before inferior courts can revise 
+them. Hunter’s Lessee, 1 Wheat., at 349; accord, 3 Story 
+§1755, at 627 (“any form, which the legislature may choose
+to prescribe”).
+Congress has never purported to give inferior federal
+courts general revising power over state-court judgments 
+for errors of federal law.  The First Congress declared that, 
+in federal-question cases, “a final judgment or decree” of 
+“the highest court of law or equity of a State” “may be re­
+examined and reversed or affirmed in” this Court.  Judici­
+ary Act of 1789, §25, 1 Stat. 85–86.  Congress called that 
+revising power “appellate jurisdiction” and identified the
+mode as a writ of error. §§13, 25, id., at 80–81, 85–86.  It 
+gave no other federal court revising power over “courts of 
+the several states.” §13, id., at 81. And, it gave no other
+federal court civil federal-question jurisdiction, either.  Cf. 
+§§9, 11, id., at 75–79.  Thus, only state courts could exercise
+original jurisdiction in federal-question cases, and only this 
+federal Court could revise their judgments. 
+It took Congress 86 years to give federal district courts
+federal-question jurisdiction, but it limited that jurisdiction 
+to original actions.  See Schweiker v. Chilicky, 487 U. S. 
+412, 420–421 (1988). In 1875, Congress granted federal
+courts “original” jurisdiction, “concurrent with the courts of 
+the several States,” over federal-question cases.  Act of Mar. 
+3, 1875, ch. 137, §1, 18 Stat. 470. But, that grant of original 
+jurisdiction was not a grant of revising power.  No inferior 
+federal court was “empowered . . . to enjoin the judgment of 
+a State court.”  D. Chamberlain, The State Judiciary, in
+Constitutional History of the United States 254 (1889); id., 
+at 253–259. 
+State-court “judgments and decrees” were 
+“subject in all cases . . . arising under the Constitution,” or 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+13 
+ 
+Cite as: 608 U. S. ____ (2026) 
+THOMAS, J., concurring 
+federal law, “to the revising or appellate jurisdiction of the 
+Supreme Court . . . , but in all other cases controlled only
+by the constitutions and laws of the respective States.” Id., 
+at 259. 
+Nothing relevant has changed since 1875.4 See Atlantic 
+Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 
+286 (1970).  Thus was the state of the law before Rooker. 
+263 U. S., at 416; Act of Mar. 3, 1911, §§24–27, 36 Stat.
+1091–1094; Act of Sept. 6, 1916, ch. 448, §2, 39 Stat. 726; 
+Williams 48–49 (“The appellate jurisdiction [of district
+courts] is very slender”).  And, it remains true today that
+district courts have only “original jurisdiction” in federal-
+question cases, 28 U. S. C. §1331, and that only this Court 
+has appellate jurisdiction over state courts in such cases, 
+§1257(a). See ante, at 5.  Congress specified no mode for 
+district courts to exercise appellate jurisdiction in federal-
+question cases, §1331; the only federal court authorized to 
+do so over state courts is this one—“by writ of certiorari,”
+§1257(a).
+A district court therefore cannot “act as an appellate
+Court” to revise state-court judgments.  Smith v. McIver, 9 
+Wheat. 532, 535 (1824) (Marshall, C. J., for the Court).  To 
+do so by “declar[ing]” a state-court judgment “void” for 
+—————— 
+4Arguably, modern federal habeas-corpus practice has drifted in the
+direction of appellate review of state-court judgments. See Harrington 
+v. Richter, 562 U. S. 86, 97–98, 100–101 (2011).  I have my reservations 
+about this development.  See Wright v. West, 505 U. S. 277, 285–293 
+(1992) (opinion of THOMAS, J.). But, it at least has the advantage of some
+grounding in statutory language, unlike petitioner’s desired exercise of 
+appellate jurisdiction here. Compare 28 U. S. C. §2254(a) (federal courts
+“shall entertain an application for a writ of habeas corpus in behalf of a
+person in custody pursuant to the judgment of a State court only on the 
+ground that he is in violation of the Constitution or laws or treaties of
+the United States”) with §1331 (“The district courts shall have original
+jurisdiction of all civil actions arising under the Constitution, laws, or 
+treaties of the United States”). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+14 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+THOMAS, J., concurring 
+errors of federal law “usurps the jurisdiction of an appellate
+court.” Voorhees, 10 Pet., at 474. 
+III 
+As “creatures of a distinct government,” “state courts are
+not, in any sense of the word, inferior” to inferior federal 
+courts. Bollman, 4 Cranch, at 97.  From the founding, state
+courts have had original jurisdiction in federal-question 
+cases, and their judgments in such cases could be revised
+only in state appellate courts or in this Court.  Ante, at 13– 
+16. Congress did not give federal district courts revising
+power over state-court judgments by giving them only orig­
+inal jurisdiction in federal-question cases. Grants of “origi­
+nal jurisdiction” do “not authorize district courts to exercise
+appellate jurisdiction.”  Verizon Md. Inc. v. Public Serv. 
+Comm’n of Md., 535 U. S. 635, 644, n. 3 (2002). Rooker thus 
+“correctly applied the simple legal proposition that only this
+Court may exercise appellate jurisdiction over state-court 
+judgments.” Lance v. Dennis, 546 U. S. 459, 467 (2006) 
+(Stevens, J., dissenting). 
+The Court reaffirms that 
+longstanding proposition. Ante, at 5–8.  I therefore join its 
+opinion in full. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+No. 25–197 
+T. M., PETITIONER v. UNIVERSITY OF MARYLAND 
+MEDICAL SYSTEM CORPORATION, ET AL. 
+ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
+APPEALS FOR THE FOURTH CIRCUIT 
+[June 18, 2026] 
+JUSTICE BARRETT, with whom THE CHIEF JUSTICE, 
+JUSTICE KAGAN, and JUSTICE GORSUCH join, dissenting. 
+Twenty years ago, this Court held that the Rooker-Feld­
+man doctrine is “confined” to the procedural circumstances 
+of the two cases from which the doctrine draws its name. 
+Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 
+U. S. 280, 284, 291 (2005); see Rooker v. Fidelity Trust Co., 
+263 U. S. 413 (1923); District of Columbia Court of Appeals 
+v. Feldman, 460 U. S. 462 (1983).  In “both cases,” we em­
+phasized, the federal action was brought “after the state 
+proceedings ended.” Exxon, 544 U. S., at 291.  Seven Courts 
+of Appeals took us at our word, refusing to apply Rooker-
+Feldman when the underlying state action remained pend­
+ing.1  They were right to hold the line. Because the Court 
+has chosen to relax it, I respectfully dissent. 
+—————— 
+1See Federación de Maestros de Puerto Rico v. Junta de Relaciones del 
+Trabajo de Puerto Rico, 410 F. 3d 17, 24 (CA1 2005); Hunter v. McMahon, 
+75 F. 4th 62, 70 (CA2 2023); Malhan v. Secretary United States Dept. of 
+State, 938 F. 3d 453, 459–460 (CA3 2019); Miller v. Dunn, 35 F. 4th 1007, 
+1013 (CA5 2022); Parker v. Lyons, 757 F. 3d 701, 705–706 (CA7 2014) 
+(per curiam), overruled on other grounds by Hadzi-Tanovic v. Johnson, 
+62 F. 4th 394 (CA7 2023); Guttman v. Khalsa, 446 F. 3d 1027, 1032 
+(CA10 2006); Nicholson v. Shafe, 558 F. 3d 1266, 1274–1275 (CA11 
+2009).  Until the Fourth Circuit decided today’s case, only the Sixth Cir­
+cuit had gone the other way. See RLR Investments, LLC v. Pigeon Forge, 
+4 F. 4th 380, 389–390, 396 (CA6 2021). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+2 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+I 
+Until today, this Court has applied the Rooker-Feldman 
+doctrine “only twice.” Exxon, 544 U. S., at 283.  That is no 
+accident: Because Rooker-Feldman stands on shaky
+ground, we have consciously kept its footprint small.  Its 
+rationale has gotten no firmer, so we should make the doc­
+trine no larger. 
+Rooker-Feldman is a “maddeningly elusive” doctrine.  B. 
+Friedman & J. Gaylord, Rooker-Feldman, from the Ground 
+Up, 74 Notre Dame L. Rev. 1129, 1133 (1999).  We have 
+primarily justified it as a negative inference from 28 
+U. S. C. §1257: Because Congress gave this Court appellate
+jurisdiction over certain state-court judgments, district
+courts must lack original jurisdiction to entertain a collat­
+eral attack against those judgments.  See Rooker, 263 U. S., 
+at 415–416; Feldman, 460 U. S., at 476. This Court’s exer­
+cise of appellate jurisdiction, the argument runs, is “func­
+tional[ly]” equivalent to a district court’s exercise of original
+jurisdiction over a collateral attack.  Ante, at 10. The prob­
+lem? A collateral attack is not functionally equivalent to an
+appeal.
+Consider just a few of the differences. An appeal “re­
+moves the record into the supervising tribunal.”  Cohens v. 
+Virginia, 6 Wheat. 264, 410 (1821).  A collateral attack does 
+not. See Fed. Rules Civ. Proc. 3, 7.  On appeal, new evi­
+dence is generally unwelcome.  See Fed. Rule App. Proc. 10; 
+United States v. Coe, 155 U. S. 76, 83–84 (1894).  In a col­
+lateral attack, new evidence is fair game. See, e.g., Fed. 
+Rule Civ. Proc. 26.  Most obviously, preclusion does not ap­
+ply on appeal. This Court is not barred from considering an
+issue just because the state high court already decided it—
+reconsidering the state court’s judgment is the whole point.
+Not so with a collateral attack; preclusion restrains district
+courts from simply redoing the state court’s work. See, e.g., 
+Parsons Steel, Inc. v. First Alabama Bank, 474 U. S. 518, 
+523 (1986). Finally, while this Court can vacate or reverse 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+3 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+the judgment of the state high court and remand for further 
+proceedings, a district court entertaining a collateral attack 
+cannot. See 7 J. Lucas, Moore’s Federal Practice ¶60.36,
+pp. 60–365 to 60–371 (2d ed. Cum. Supp. 1996–1997) (ex­
+plaining that collateral attacks “d[o] not operate to vacate
+or annul the [original] judgment”).  Because of the many
+differences between appellate jurisdiction and original ju­
+risdiction over a collateral attack, it is doubtful that by giv­
+ing this Court the former, Congress intended to deprive dis­
+trict courts of the latter. 
+Occasionally, we have also cited 28 U. S. C. §1331 as sup­
+port for the Rooker-Feldman doctrine, observing that it 
+gives district courts “original,” not appellate, jurisdiction. 
+Rooker, 263 U. S., at 416.  This observation adds nothing—
+as just explained, a collateral attack is not the functional 
+equivalent of an appeal.  Besides, §1331 cannot explain why 
+Rooker-Feldman has always been limited to collateral at­
+tacks on state-court judgments.  If entertaining a collateral
+attack goes beyond “original jurisdiction,” then it should not 
+matter whether the underlying judgment is from a state 
+court or a federal one. Yet it is well settled that district 
+courts can entertain collateral attacks on federal judg­
+ments—for example, an independent action for relief from 
+a judgment to prevent a “grave miscarriage of justice.” 
+United States v. Beggerly, 524 U. S. 38, 45–47 (1998); see 
+Fed. Rule Civ. Proc. 60(d) (Rule 60 does not limit a court’s 
+power to “entertain an independent action to relieve a party
+from a judgment, order, or proceeding”).  It is little wonder 
+that (at least until today) we had backed away from the 
+§1331 rationale.
+Beyond the difficulties of finding a statutory basis for 
+Rooker-Feldman, parts of the United States Code undercut 
+it. The doctrine is in tension, to say the least, with statutes 
+granting district courts jurisdiction in categorical terms.
+Section 1331 gives district courts “original jurisdiction” 
+over “all civil actions” presenting a federal question—not 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+4 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+“all civil actions” presenting a federal question “minus
+those that attack a state-court judgment.”  The other juris­
+dictional grants are similar. See, e.g., 28 U. S. C. §1332
+(“The district courts shall have original jurisdiction of all 
+civil actions” meeting certain diversity and amount-in-con­
+troversy requirements).  None has a carveout for collateral 
+attacks. 
+More to the point, in trying to read between the lines of 
+§1257 and §1331, Rooker-Feldman misses what is further 
+down the page: Congress has told us how to treat state-
+court judgments.  The Full Faith and Credit Act, 28 U. S. C. 
+§1738, provides that the “judicial proceedings of any court”
+of any State “shall have the same full faith and credit in 
+every court within the United States . . . as they have by 
+law or usage in the courts of such State . . . from which they
+are taken.” In other words, federal courts “must give the 
+same preclusive effect to a state-court judgment as another 
+court of that State would give.”  Parsons Steel, 474 U. S., at 
+523. 
+Conceptual problems aside, it is not clear what Rooker-
+Feldman brings to the table.  Preclusion already bars par­
+ties from relitigating issues and claims that were decided 
+in state court.  See, e.g., ibid.2  And when state litigation is 
+ongoing, various abstention doctrines prevent federal
+courts from getting involved. Younger abstention, for ex­
+ample, precludes federal courts from interfering with state 
+criminal prosecutions and certain state civil proceedings.
+See Younger v. Harris, 401 U. S. 37 (1971); Sprint Commu­
+nications, Inc. v. Jacobs, 571 U. S. 69, 72–73 (2013); see also 
+Colorado River Water Conservation Dist. v. United States, 
+424 U. S. 800, 818–821 (1976) (Colorado River abstention); 
+Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496, 
+—————— 
+2To the extent that preclusion would not bar relitigation, using Rooker-
+Feldman to do so seems to violate the Full Faith and Credit Act by giving
+state judgments more preclusive effect than they would have in the state 
+courts from which they are taken.  See infra, at 9–10. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+500–501 (1941) (Pullman abstention); Burford v. Sun Oil 
+Co., 319 U. S. 315, 332–334 (1943) (Burford abstention). Fi­
+nally, the Anti-Injunction Act generally bars federal courts
+from enjoining state proceedings.  28 U. S. C. §2283. 
+None of this is to say that Rooker-Feldman is inconse­
+quential. Crucially, it is jurisdictional—so courts must an­
+alyze it, even if no one raises it.  And because Rooker-Feld­
+man lacks both a clear role and a clear rationale, it is hard 
+to contain. After Feldman, the doctrine became “perhaps
+the primary docket-clearing workhorse for the federal 
+courts.”  S. Bandes, The Rooker-Feldman Doctrine: Evalu­
+ating Its Jurisdictional Status, 74 Notre Dame L. Rev. 1175 
+(1999). “In the process,” Rooker-Feldman “mushroomed 
+well beyond the §1257 explanation that gave it birth, as the 
+federal courts found one claim after another closely inter­
+twined with claims raised, resolved, sometimes still pend­
+ing, in the state courts.” VanderKodde v. Mary Jane M. El­
+liott, P. C., 951 F. 3d 397, 406 (CA6 2020) (Sutton, J., 
+concurring). 
+II 
+A 
+Recognizing that things had gone awry, this Court inter­
+vened. In Exxon, we neutralized Rooker-Feldman by con­
+fining it to the procedural circumstances of the Rooker and 
+Feldman cases.  544 U. S., at 284, 291.  Our treatment of 
+the doctrine was so devastating that one scholar penned its
+obituary. See S. Bray, Rooker Feldman (1923–2006), 9 
+Green Bag 2d 317 (2006). 
+ Faithfully read, Exxon requires us to reject the applica­
+tion of Rooker-Feldman to T. M.’s case.  In Exxon, we la­
+mented that lower courts had construed the doctrine “to ex­
+tend far beyond the contours of the Rooker and Feldman 
+cases.” 544 U. S., at 283.  We acknowledged its tension with
+both jurisdictional statutes like §1331 and the Full Faith 
+and Credit Act, observing that the doctrine risks 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+6 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+“overriding Congress’ conferral of federal-court jurisdiction
+concurrent with jurisdiction exercised by state courts” and
+“superseding the ordinary application of preclusion law 
+pursuant to 28 U. S. C. §1738.”  Ibid.; see id., at 284.  And 
+we drew a line: Rooker-Feldman “is confined to cases of the 
+kind from which the doctrine acquired its name.”  544 U. S., 
+at 284.  We then identified the key features of those cases. 
+Id., at 291. Among them: In “both” Rooker and Feldman, 
+the losing party sued in federal court “after the state pro­
+ceedings ended.” 544 U. S., at 291 (emphasis added). 
+This limitation flows directly from Exxon’s logic. Exxon 
+confines Rooker-Feldman to cases like Rooker and Feldman 
+for a reason: Those two cases “exhibit the limited circum­
+stances in which this Court’s appellate jurisdiction over 
+state-court judgments” under §1257 “precludes a United
+States district court from exercising subject-matter juris­
+diction in an action it would otherwise be empowered to ad­
+judicate under a congressional grant of authority, e.g., 
+§1330 (suits against foreign states), §1331 (federal ques­
+tion), and §1332 (diversity).”  544 U. S., at 291.  This Court’s 
+appellate jurisdiction is limited to “final judgments or de­
+crees rendered by the highest court of a State in which a 
+decision could be had.” §1257(a).  If there is no final judg­
+ment from a state high court, §1257 does not confer juris­
+diction in this Court; thus, there is nothing to “preclud[e]”
+district courts from exercising the jurisdiction they would 
+“otherwise” have. Id., at 291. 
+Here, the state proceedings have not “ended.”  T. M.’s 
+original action is still pending in a Maryland appellate 
+court. See ante, at 3. So this case falls outside the narrow 
+confines in which Rooker-Feldman continues to operate,
+and the District Court had jurisdiction.  See Exxon, 544 
+U. S., at 291. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+7 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+B 
+Rather than hew to this straightforward analysis, the 
+Court reshapes Rooker-Feldman. It does so by both retreat­
+ing to the old (the §1331 rationale that Exxon discarded)
+and inventing the new (a grab bag of policy reasons for dis­
+regarding §1257’s finality requirement).  This reconception
+of Rooker-Feldman leaves the doctrine worse off. 
+The Court’s first mistake is failing to believe that Exxon 
+means what it says. The Court acknowledges that Exxon 
+limits Rooker-Feldman to “‘cases of the kind from which the 
+doctrine acquired its name.’”  Ante, at 7 (quoting Exxon, 544 
+U. S., at 284). But it ignores that Exxon identifies the de­
+fining features of those cases and specifically notes that
+“both” had been filed “after the state proceedings ended.” 
+544 U. S., at 291; see Skinner v. Switzer, 562 U. S. 521, 531 
+(2011) (reiterating that Rooker and Feldman were filed “af­
+ter the state proceedings ended”).  Almost every circuit has 
+recognized the significance of this language.  See n. 1, su­
+pra. This Court dismisses it in a footnote. Ante, at 8, n. 5. 
+To justify giving Rooker-Feldman a broader sweep, the
+Court resurrects a rationale that Exxon buried: §1331.  Be­
+fore Exxon, we had cited §1331 as a secondary rationale for 
+the doctrine, see ante, at 3; according to the Court, Exxon 
+continues the thread, see ante, at 11. That is a very ambi­
+tious reading of Exxon.3  Rather than describing Rooker-
+Feldman as a negative inference from §1331, Exxon por­
+trays it as a negative inference from §1257 that overrides 
+§1331. As Exxon summarizes: Rooker-Feldman describes 
+when this Court’s appellate jurisdiction “precludes” district
+courts from exercising the jurisdiction they would “other­
+wise” have. 544 U. S., at 291.  The Court protests that if 
+—————— 
+3The Court relies on a quotation from a footnote in another case that 
+Exxon includes in a parenthetical, treating that language as if it were 
+Exxon’s own explanation of the doctrine. See ante, at 11. Obviously, a 
+stray citation does not override the thrust of Exxon’s logic. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+8 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+Exxon had intended to discard the §1331 rationale, it would 
+have said so. See ante, at 12.  But the Court does not even 
+mention this language—Exxon’s only explanation of the
+doctrine’s rationale—much less explain why it does not suf­
+fice. And our more recent Rooker-Feldman cases confirm 
+that Exxon tossed the §1331 justification. These cases pre­
+sent Rooker-Feldman as a “strict negative inference from 
+§1257,” ante, at 13, and do not mention §1331 at all.  See 
+Skinner, 562 U. S., at 531–532 (explaining Rooker-Feldman 
+solely as an inference from §1257); Lance v. Dennis, 546 
+U. S. 459, 463 (2006) (per curiam) (same). 
+Yet even as it resuscitates the §1331 rationale, the Court 
+acknowledges that §1257 remains in the mix. Ante, at 6 
+(describing Rooker-Feldman as “built” on both §1331 and 
+§1257).  And by recognizing that the doctrine applies only 
+to “state-court judgments,” ante, at 1 (emphasis added), the 
+Court tacitly admits that §1257—not §1331—is what really 
+determines when Rooker-Feldman kicks in. Still, the 
+Court’s embrace of §1257 is only partial: It is unwilling to 
+accept §1257’s requirement of a “[f]inal judgment” from the
+“highest court of a State.” The Court’s main reason for dis­
+regarding this limit appears to be Exxon, but as explained, 
+Exxon compels the opposite conclusion.
+Perhaps recognizing that its new approach to §1257 re­
+quires some other rationale, the Court spends several pages 
+running through various policy considerations.  Applying 
+§1257’s finality limit, the Court says, would generate
+“anomalous outcomes,” disrespect “federalism,” and sow
+“confusion.” Ante, at 13, 17. Its theory is an innovation, but 
+not an improvement.
+Take “anomalous outcomes.” The Court reasons that it is 
+“difficult to see why Congress would have authorized dis­
+trict courts to review final state-court judgments pending 
+appeal in state court when it did not authorize this Court 
+to do so.” Ante, at 14. But the Court’s approach also yields 
+“anomalous outcomes.”  To give one example: As the Court 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+9 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+concedes, the doctrine applies only to “‘state-court judg­
+ments’”; it does not bar district courts from reviewing state-
+court interlocutory orders.  Ante, at 1 (quoting Exxon, 544 
+U. S., at 284). Yet it is similarly “difficult to see why Con­
+gress would have authorized district courts” to review in­
+terlocutory orders subject to further review in state court 
+“when it did not authorize this Court to do so.”  Ante, at 14. 
+The Court’s approach cannot answer this question, but 
+mine can: Rooker-Feldman allows for this result because it 
+is rooted in §1257, not in a vague notion of which outcomes
+are “anomalous.” 
+The Court also insists that “[f]ederalism principles are 
+. . . best served” by applying Rooker-Feldman to dismiss 
+T. M.’s challenge. Ante, at 15. But the word “federalism” 
+does not appear in either Rooker or Feldman. And if it were 
+true that general concerns about federalism animate the 
+doctrine, Exxon would have come out the opposite way.  The 
+lower court in Exxon applied Rooker-Feldman in part be­
+cause the federal suit was “an ‘insurance policy’ against an
+adverse result in state court”—a clear affront to federalism. 
+544 U. S., at 294, n. 9 (quoting 364 F. 3d 102, 105–106 (CA3 
+2004)). We dismissed that line of reasoning in a footnote,
+explaining that there is “nothing necessarily inappropriate”
+about “a protective action.” 544 U. S., at 294, n. 9. If feder­
+alism drives Rooker-Feldman, the Exxon Court missed the 
+memo. 
+Even if federalism were a solid rationale, it is doubtful 
+that “[f]ederalism principles are . . . best served by” dis­
+missing T. M.’s challenge.  Ante, at 15.  Like other States, 
+Maryland has adopted preclusion rules to determine when 
+parties may relitigate issues and claims decided in a prior 
+case. The District Court determined that T. M.’s lawsuit is 
+not “precluded” under Maryland law—which means that 
+T. M. could have filed a suit just like this one in a Maryland 
+state court. Letter Order in No. 1:23–cv–1684 (D Md.), ECF 
+Doc. 27, pp. 2–3. Yet the Court maintains that bouncing 
+
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+10 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM 
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+her suit from federal court best serves federalism. Why?
+Wouldn’t Maryland’s interests be best served by affording 
+its judgments the effect they would have under state law? 
+In any event, Congress has already made the federalism 
+calculus, and this Court is not free to override it.  As Exxon 
+recognizes, the Full Faith and Credit Act—which the Court 
+does not mention—requires federal courts to give state
+judgments the effect that they would have in state courts.
+544 U. S., at 293; see Lance, 546 U. S., at 466 (“Congress
+has directed federal courts to look principally to state law in 
+deciding what effect to give state-court judgments”).  So 
+even if the Court could otherwise ignore state law in the
+name of federalism, Congress has foreclosed that path.
+Grounding Rooker-Feldman in federalism is also at odds 
+with our abstention doctrines, which already account for 
+friction between state and federal courts but do not apply
+here. We have purposefully kept these doctrines narrow,
+stressing that district courts have a “virtually unflagging
+obligation . . . to exercise the jurisdiction given them.”  Col­
+orado River, 424 U. S., at 817.  “[O]nly exceptional circum­
+stances justify a federal court’s refusal to decide a case in 
+deference to the States.”  New Orleans Public Service, Inc. 
+v. Council of City of New Orleans, 491 U. S. 350, 368 (1989). 
+No one argues that T. M.’s challenge fits within those “ex­
+ceptional circumstances.”  Nonetheless, the Court repack­
+ages the same principle—“deference to the States”—as a 
+reason why the District Court lacked jurisdiction in the first
+place. See ante, at 14. It is ironic that in the Court’s view, 
+federalism concerns that are too weak to trigger abstention 
+doctrines are strong enough to deprive district courts of ju­
+risdiction altogether. Cf. Exxon, 544 U. S., at 284 (outside 
+the circumstances of Rooker and Feldman, Rooker-Feldman 
+doctrine “does not . . . augment the circumscribed doctrines
+that allow federal courts to stay or dismiss proceedings in
+deference to state-court actions”). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+ 
+ 
+11 
+ 
+Cite as: 608 U. S. ____ (2026) 
+BARRETT, J., dissenting 
+The Court’s reliance on federalism also sits uneasily with
+the fact that T. M.’s suit arises under 42 U. S. C. §1983. 
+Section 1983 was the “product of a vast transformation 
+from” traditional “concepts of federalism.”  Mitchum v. Fos­
+ter, 407 U. S. 225, 242 (1972).  Its “very purpose” was “to
+interpose the federal courts between the States and the peo­
+ple, as guardians of the people’s federal rights—to protect
+the people from unconstitutional action under color of state
+law, ‘whether that action be executive, legislative, or judi­
+cial.’”  Ibid. (quoting Ex parte Virginia, 100 U. S. 339, 346 
+(1880)). Given our longstanding interpretation of §1983, it 
+is odd to cite federalism as grounds for dismissing a §1983
+suit. Cf. J. Beermann, Comments on Rooker-Feldman or Let 
+State Law Be Our Guide, 74 Notre Dame L. Rev. 1209, 
+1230–1231 (1999).  Notably, we have construed the Anti-
+Injunction Act—which normally bars federal courts from
+enjoining state-court proceedings—to contain an exception
+for §1983 suits like T. M.’s.  See Mitchum, 407 U. S., at 242– 
+243. 
+Finally, the Court insists that drawing the line at finality 
+would “needlessly complicate the Rooker-Feldman analy­
+sis” because “[i]t is not always straightforward to determine 
+whether a given state-court judgment is a reviewable final
+judgment under §1257(a).”  Ante, at 17. But the line must 
+be drawn somewhere, and there is no reason to think that 
+drawing it at “judgment,” as the Court does, is any more 
+manageable. We apply the finality test with little trouble;
+surely lower courts can do the same. 
+*
+*
+* 
+The upshot of today’s decision is that the Court has mud­
+died waters that were hardly clear to begin with.  That is 
+unfortunate, because there was a better path available:
+treating Rooker-Feldman as “the §1257 Rule.” Vander-
+Kodde, 951 F. 3d, at 409 (Sutton, J., concurring).  Doing so 
+would have been both clearer and more faithful to Exxon. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+12 
+T. M. v. UNIVERSITY OF MD. MEDICAL SYSTEM
+ 
+CORPORATION 
+BARRETT, J., dissenting 
+Still, the news is not all bad.  Although the Court expands 
+Rooker-Feldman beyond Exxon’s line, it repeatedly empha­
+sizes that the doctrine is “narrow.” See ante, at 1, 7, 8, 18. 
+Courts should not lose sight of that message.  In the end, 
+Rooker-Feldman has been given an inch—it should not be 
+allowed to take a mile. 
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+Page Proof Pending Publication
+PRELIMINARY PRINT 
+Volume 598 U. S. Part 1 
+Pages 230–263 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 19, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+230 
+OCTOBER TERM, 2022 
+Syllabus 
+REED v. GOERTZ 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 21–442. Argued October 11, 2022—Decided April 19, 2023 
+A Texas jury found petitioner Rodney Reed guilty of the 1996 murder of 
+Stacey Stites. The Texas Court of Criminal Appeals affrmed Reed's 
+conviction and death sentence. In 2014, Reed fled a motion in Texas 
+state court under Texas's post-conviction DNA testing law. Reed re­
+quested DNA testing on certain evidence, including the belt used to 
+strangle Stites, which Reed contended would help identify the true per­
+petrator. The state trial court denied Reed's motion, reasoning in part 
+that items Reed sought to test were not preserved through an adequate 
+chain of custody. The Texas Court of Criminal Appeals affrmed, and 
+later denied Reed's motion for rehearing. Reed then sued in federal 
+court under 42 U. S. C. § 1983, asserting that Texas's post-conviction 
+DNA testing law failed to provide procedural due process. Reed ar­
+gued that the law's stringent chain-of-custody requirement was uncon­
+stitutional. The District Court dismissed Reed's complaint. The Fifth 
+Circuit affrmed on the ground that Reed's § 1983 claim was fled too 
+late, after the applicable 2-year statute of limitations had run. The 
+Fifth Circuit held that the limitations period began to run when the 
+Texas trial court denied Reed's motion, not when the Texas Court of 
+Criminal Appeals denied rehearing. 
+Held: When a prisoner pursues state post-conviction DNA testing through 
+the state-provided litigation process, the statute of limitations for a 
+§ 1983 procedural due process claim begins to run when the state litiga­
+tion ends, in this case when the Texas Court of Criminal Appeals denied 
+Reed's motion for rehearing. Pp. 234–237. 
+(a) Texas's three threshold arguments lack merit. First, Reed has 
+standing because Reed suffciently alleged an injury in fact: denial of 
+access to the requested evidence by the state prosecutor (the named 
+defendant). A federal court conclusion that Texas's post-conviction 
+DNA testing procedures denied Reed due process would “amount to a 
+signifcant increase in the likelihood” that Reed “would obtain relief that 
+directly redresses the injury suffered.” Utah v. Evans, 536 U. S. 452, 
+464. Second, Texas's invocation of the State's sovereign immunity fails 
+because the Ex parte Young doctrine allows suits like Reed's for declar­
+atory or injunctive relief against state offcers in their offcial capacities. 
+209 U. S. 123, 159–161. Third, Reed's procedural due process claim does 
+not contravene the Rooker-Feldman doctrine. Pp. 234–235. 
+
+Page Proof Pending Publication
+231 
+Cite as: 598 U. S. 230 (2023) 
+Syllabus 
+(b) The sole question before the Court is whether Reed's § 1983 suit 
+raising a procedural due process challenge to Texas's post-conviction 
+DNA testing law was timely under the applicable 2-year statute of limi­
+tations. The statute of limitations begins to run when the plaintiff has 
+a “complete and present cause of action,” Bay Area Laundry and Dry 
+Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 
+201, a determination the Court makes by focusing frst on the specifc 
+constitutional right alleged to have been infringed. See McDonough v. 
+Smith, 588 U. S. –––, –––. Here, that right is procedural due process. 
+A procedural due process claim is complete not “when the deprivation 
+occurs” but only when “the State fails to provide due process.” Ziner­
+mon v. Burch, 494 U. S. 113, 126. Texas's process for considering a 
+request for DNA testing in capital cases includes both trial court pro­
+ceedings and appellate review, which under Texas Rule of Appellate 
+Procedure 79.1 encompasses a motion for rehearing. In Reed's case, 
+the State's alleged failure to provide Reed with a fundamentally fair 
+process was complete when the state litigation ended—when the Texas 
+Court of Criminal Appeals denied Reed's motion for rehearing. There­
+fore, the statute of limitations began to run on Reed's § 1983 claim when 
+Reed's motion for rehearing was denied. Pp. 235–237. 
+995 F. 3d 425, reversed. 
+Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Sotomayor, Kagan, Barrett, and Jackson, JJ., joined. 
+Thomas, J., fled a dissenting opinion, post, p. 237. Alito, J., fled a dis­
+senting opinion, in which Gorsuch, J., joined, post, p. 256. 
+Parker Rider-Longmaid argued the cause for petitioner. 
+With him on the briefs were Kyser Blakely, Cliff C. Gardner, 
+Michelle L. Davis, Barry C. Scheck, and Jane Pucher. 
+Judd E. Stone II, Solicitor General of Texas, argued the 
+cause for respondent. With him on the brief were Ken Pax­
+ton, Attorney General of Texas, Brent Webster, First Assist­
+ant Attorney General, Ari Cuenin and Bill Davis, Deputy 
+Solicitors General, Michael R. Abrams and Kyle D. Highful, 
+Assistant Solicitors General, and Cody Coll, Assistant Attor­
+ney General.* 
+*Briefs of amici curiae urging reversal were fled for the Constitutional 
+Accountability Center by Elizabeth B. Wydra, Brianne J. Gorod, and 
+Brian R. Frazelle; for Eight Retired Judges by Jessica L. Ellsworth and 
+Jo-Ann Tamila Sagar; for Federal Courts Scholars by Meaghan VerGow; 
+
+Page Proof Pending Publication
+232 
+REED v. GOERTZ 
+Opinion of the Court 
+Justice Kavanaugh delivered the opinion of the Court. 
+In many States, a convicted prisoner who still disputes 
+his guilt may ask state courts to order post-conviction DNA 
+testing of evidence. If the prisoner's request fails in the 
+state courts and he then fles a federal 42 U. S. C. § 1983 pro­
+cedural due process suit challenging the constitutionality of 
+the state process, when does the statute of limitations for 
+that § 1983 suit begin to run? The Eleventh Circuit has held 
+that the statute of limitations begins to run at the end of 
+the state-court litigation denying DNA testing, including the 
+state-court appeal. See Van Poyck v. McCollum, 646 F. 3d 
+865, 867 (2011). In this case, by contrast, the Fifth Circuit 
+held that the statute of limitations begins to run when the 
+state trial court denied DNA testing, notwithstanding a sub­
+sequent state-court appeal. See 995 F. 3d 425, 431 (2021). 
+We conclude that the statute of limitations begins to run at 
+the end of the state-court litigation. 
+I 
+In 1996, Stacey Stites was strangled to death in Bastrop 
+County, Texas. The State charged Rodney Reed with mur­
+for the Law Enforcement Action Partnership et al. by Jim Davy; for the 
+NAACP Legal Defense & Educational Fund, Inc., by Janai Nelson, Sam 
+Spital, and Adam Murphy; for the National Association of Criminal De­
+fense Lawyers et al. by Barbara E. Bergman, Clark M. Neily III, Jay R. 
+Schweikert, John W. Whitehead, Sean M. SeLegue, and David D. Cole; and 
+for Texas Exonerees et al. by Craig E. Stewart. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Montana et al. by Austin Knudsen, Attorney General of Montana, David 
+M. S. Dewhirst, Solicitor General, and Kathleen L. Smithgall, Assistant 
+Solicitor General, and by the Attorneys General for their respective States 
+as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, Leslie Rut­
+ledge of Arkansas, Lawrence Wasden of Idaho, Jeff Landry of Louisiana, 
+Lynn Fitch of Mississippi, John M. O'Connor of Oklahoma, Alan Wilson 
+of South Carolina, and Sean D. Reyes of Utah. 
+Briefs of amici curiae were fled for Chase Baumgartner by Michael L. 
+Ware; and for Fred Smith, Jr., by Gregory Dubinsky. 
+
+Page Proof Pending Publication
+233 
+Cite as: 598 U. S. 230 (2023) 
+Opinion of the Court 
+dering Stites. At trial, Reed claimed that he was innocent 
+and that Stites's fancé or another acquaintance had com­
+mitted the murder. A jury rejected that defense theory 
+and found Reed guilty. Reed was sentenced to death. The 
+Texas Court of Criminal Appeals affrmed the conviction and 
+death sentence. Reed's state and federal habeas petitions 
+were unsuccessful. 
+Then in 2014, Reed fled a motion in state court under 
+Texas's post-conviction DNA testing law. See Tex. Code 
+Crim. Proc. Ann., Arts. 64.01–64.05 (Vernon 2018). Reed re­
+quested DNA testing on more than 40 pieces of evidence, 
+including the belt used to strangle Stites. Reed contended 
+that DNA testing would help identify the true perpetrator. 
+The state prosecutor, respondent Bryan Goertz, agreed to 
+test several pieces of evidence, but otherwise opposed the 
+motion and refused to test most of the evidence. 
+The state trial court denied Reed's motion. The court 
+reasoned in part that (i) many items Reed sought to test— 
+including the belt—were not preserved through an adequate 
+chain of custody and (ii) Reed did not demonstrate that he 
+would have been acquitted if the DNA results were exculpa­
+tory. On appeal, the Texas Court of Criminal Appeals af­
+frmed the trial court and later denied Reed's motion for 
+rehearing. 
+Reed next sued in federal court under 42 U. S. C. § 1983, 
+asserting that Texas's post-conviction DNA testing law 
+failed to provide procedural due process. Among other 
+things, Reed argued that the law's stringent chain-of-custody 
+requirement was unconstitutional and in effect foreclosed 
+DNA testing for individuals convicted before “rules govern­
+ing the State's handling and storage of evidence were put in 
+place.” App. 39. 
+The U. S. District Court for the Western District of Texas 
+dismissed Reed's complaint. The U. S. Court of Appeals for 
+the Fifth Circuit affrmed on the ground that Reed's § 1983 
+suit was fled too late, after the applicable 2-year statute of 
+
+Page Proof Pending Publication
+234 
+REED v. GOERTZ 
+Opinion of the Court 
+limitations had run. The Fifth Circuit ruled that the stat­
+ute of limitations began to run when the Texas trial court 
+denied Reed's motion (which occurred more than two years 
+before Reed fled his § 1983 suit in federal court), not when 
+the Texas Court of Criminal Appeals denied rehearing. 
+Because the federal Courts of Appeals disagree about 
+when the statute of limitations begins to run for a § 1983 suit 
+regarding a State's post-conviction DNA testing procedures, 
+we granted certiorari. 596 U. S. ––– (2022). 
+II 
+Texas raises three threshold arguments. 
+First, Texas argues that Reed lacks standing. We dis­
+agree. Reed suffciently alleged an injury in fact: denial of 
+access to the requested evidence. The state prosecutor, who 
+is the named defendant, denied access to the evidence and 
+thereby caused Reed's injury. And if a federal court con­
+cludes that Texas's post-conviction DNA testing procedures 
+violate due process, that court order would eliminate the 
+state prosecutor's justifcation for denying DNA testing. It 
+is “substantially likely” that the state prosecutor would 
+abide by such a court order. Utah v. Evans, 536 U. S. 452, 
+464 (2002) (internal quotation marks omitted). In other 
+words, in “terms of our `standing' precedent, the courts 
+would have ordered a change in a legal status,” and “the 
+practical consequence of that change would amount to a sig­
+nifcant increase in the likelihood” that the state prosecutor 
+would grant access to the requested evidence and that Reed 
+therefore “would obtain relief that directly redresses the in­
+jury suffered.” Ibid. 
+Second, Texas invokes the State's sovereign immunity. 
+But the Ex parte Young doctrine allows suits like Reed's for 
+declaratory or injunctive relief against state offcers in their 
+offcial capacities. 209 U. S. 123, 159–161 (1908). 
+Third, Texas contends that Reed's procedural due process 
+claim contravenes the Rooker-Feldman doctrine. 
+See 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 230 (2023) 
+235 
+Opinion of the Court 
+Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923); District of 
+Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983). 
+That doctrine prohibits federal courts from adjudicating 
+cases brought by state-court losing parties challenging state-
+court judgments. But as this Court explained in Skinner v. 
+Switzer, even though a “state-court decision is not review­
+able by lower federal courts,” a “statute or rule governing 
+the decision may be challenged in a federal action.” 562 
+U. S. 521, 532 (2011). Here, as in Skinner, Reed does “not 
+challenge the adverse” state-court decisions themselves, but 
+rather “targets as unconstitutional the Texas statute they 
+authoritatively construed.” Ibid. 
+III 
+This Court's case law “severely limits the federal action 
+a state prisoner may bring for DNA testing.” Skinner v. 
+Switzer, 562 U. S. 521, 525 (2011). The Court has “rejected 
+the extension of substantive due process to this area, and 
+left slim room for the prisoner to show that the governing 
+state law denies him procedural due process.” Ibid. (cita­
+tion omitted); see District Attorney's Offce for Third Judi­
+cial Dist. v. Osborne, 557 U. S. 52, 69, 72 (2009). 
+Seeking to ft his § 1983 suit within the “slim room” left by 
+this Court's precedent, Reed raised a procedural due process 
+challenge to Texas's post-conviction DNA testing law. The 
+sole question now before this Court is whether Reed's § 1983 
+suit was timely. The parties agree that the statute of limi­
+tations for Reed's claim is two years. But the parties dis­
+agree about when that 2-year limitations period began to 
+run. That question is one of federal law. See Wallace v. 
+Kato, 549 U. S. 384, 388 (2007). 
+As a general matter, the statute of limitations begins to 
+run when the plaintiff has a “complete and present cause 
+of action.” Bay Area Laundry and Dry Cleaning Pension 
+Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997) 
+(internal quotation marks omitted). To determine when a 
+
+Page Proof Pending Publication
+236 
+REED v. GOERTZ 
+Opinion of the Court 
+plaintiff has a complete and present cause of action, the 
+Court focuses frst on the specifc constitutional right alleged 
+to have been infringed. See McDonough v. Smith, 588 U. S. 
+–––, ––– (2019). 
+Here, the specifc constitutional right allegedly infringed 
+is procedural due process. A procedural due process claim 
+consists of two elements: (i) deprivation by state action of a 
+protected interest in life, liberty, or property, and (ii) inade­
+quate state process. See Zinermon v. Burch, 494 U. S. 113, 
+125 (1990). Importantly, the Court has stated that a proce­
+dural due process claim “is not complete when the depriva­
+tion occurs.” Id., at 126. Rather, the claim is “complete” 
+only when “the State fails to provide due process.” Ibid. 
+Reed contends that the State's process for considering his 
+DNA testing request was fundamentally unfair in violation 
+of the Due Process Clause. Texas's process for considering 
+a request for DNA testing in capital cases includes not only 
+trial court proceedings, but also appellate review by the 
+Court of Criminal Appeals. Tex. Code Crim. Proc. Ann., 
+Art. 64.05. And under longstanding Texas rules of appellate 
+procedure, the Court of Criminal Appeals's appellate review 
+process encompasses a motion for rehearing. Tex. Rule 
+App. Proc. 79.1 (2022). 
+In Reed's case, the State's alleged failure to provide Reed 
+with a fundamentally fair process was complete when the 
+state litigation ended and deprived Reed of his asserted 
+liberty interest in DNA testing. Therefore, Reed's § 1983 
+claim was complete and the statute of limitations began to 
+run when the state litigation ended—when the Texas Court 
+of Criminal Appeals denied Reed's motion for rehearing. 
+The soundness of that straightforward conclusion is “rein­
+forced by the consequences that would follow” from a con­
+trary approach. McDonough, 588 U. S., at –––. If the stat­
+ute of limitations for a § 1983 suit like Reed's began to run 
+after a state trial court's denial of a plaintiff 's motion for 
+DNA testing (or even after the appeal before the plaintiff's 
+
+Page Proof Pending Publication
+237 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+rehearing proceedings), the plaintiff would likely continue to 
+pursue relief in the state system and simultaneously fle a 
+protective federal § 1983 suit challenging that ongoing state 
+process. That parallel litigation would “run counter to core 
+principles of federalism, comity, consistency, and judicial 
+economy.” Id., at –––. We see no good reason for such 
+senseless duplication. 
+Moreover, signifcant systemic benefts ensue from start­
+ing the statute of limitations clock when the state litigation 
+in DNA testing cases like Reed's has concluded. If any due 
+process faws lurk in the DNA testing law, the state appellate 
+process may cure those faws, thereby rendering a federal 
+§ 1983 suit unnecessary. And if the state appellate court 
+construes the DNA testing statute, that construction will 
+streamline and focus subsequent § 1983 proceedings. 
+In sum, when a prisoner pursues state post-conviction 
+DNA testing through the state-provided litigation process, 
+the statute of limitations for a § 1983 procedural due proc­
+ess claim begins to run when the state litigation ends. 
+In Reed's case, the statute of limitations began to run when 
+the Texas Court of Criminal Appeals denied Reed's motion 
+for rehearing. Reed's § 1983 claim was timely.1 
+We reverse the judgment of the U. S. Court of Appeals for 
+the Fifth Circuit. 
+It is so ordered. 
+Justice Thomas, dissenting. 
+The Texas Court of Criminal Appeals (CCA) affrmed the 
+denial of petitioner Rodney Reed's state-law motion for post­
+1 According to Reed, a plaintiff may forgo full appellate review in the 
+state-court system and still bring a procedural due process suit challeng­
+ing a State's post-conviction DNA testing law. See Tr. of Oral Arg. 9–14. 
+As this Court indicated in District Attorney's Offce for Third Judicial 
+Dist. v. Osborne, it may be “diffcult” as a practical matter “to criticize the 
+State's procedures when [the prisoner] has not invoked them.” 557 U. S. 
+52, 71 (2009). In any event, we need not address that hypothetical 
+scenario. 
+
+Page Proof Pending Publication
+238 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+conviction DNA testing. Reed petitioned this Court for cer­
+tiorari, arguing that the CCA's interpretation and applica­
+tion of the relevant state law violated his federal due process 
+rights. After we denied his petition, Reed repackaged it as 
+a complaint in Federal District Court, naming respondent 
+(the Bastrop County District Attorney) as a placeholder de­
+fendant. Like his earlier certiorari petition, Reed's com­
+plaint assails the CCA's state-law reasoning as inconsis­
+tent with due process, and it seeks a declaration that the 
+CCA's interpretation and application of state law was 
+unconstitutional. 
+Reed's action should be dismissed for lack of subject-
+matter jurisdiction. Federal district courts lack appellate 
+jurisdiction to review state-court judgments, and Reed's 
+action presents no original Article III case or controversy 
+between him and the district attorney. Because the Court 
+erroneously holds that the District Court had jurisdiction 
+over Reed's action, I respectfully dissent. 
+I 
+A 
+On April 23, 1996, 19-year-old Stacey Stites failed to re­
+port for her 3:30 a.m. shift at the H.E.B. grocery store in 
+Bastrop, Texas. The truck Stites drove to work was found 
+abandoned in the Bastrop High School parking lot a couple 
+of hours later. That afternoon, a passerby discovered Stites' 
+body in a ditch by a country road, her clothing disturbed 
+in a manner suggesting sexual violence. Medical examiners 
+determined that Stites had been strangled to death with her 
+own belt, which was found in two pieces—one near the truck, 
+the other near Stites' body. There was semen in Stites' va­
+gina and rectum and saliva on her breasts. The police con­
+cluded that Stites had been raped and murdered. 
+Despite a wide-ranging investigation, the police were ini­
+tially unable to fnd a DNA match for the bodily fuids recov­
+ered from Stites' corpse. Then, about six months after 
+
+Page Proof Pending Publication
+239 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+Stites' death, Reed was arrested for kidnaping and attempt­
+ing to rape and murder another young woman near the route 
+Stites typically took to work and around the same time of 
+night when Stites had gone missing. Reed lived near the 
+high school and was often seen walking the surrounding area 
+at night. Intrigued, the police checked Reed's DNA profle, 
+which Texas had on fle from an earlier sexual-assault case 
+against him. A series of tests established a conclusive, one-
+in-the-world-population match between Reed and the fuids 
+recovered from Stites' corpse. 
+When frst questioned, Reed insisted that he did not know 
+Stites at all, unaware that the police had DNA evidence dis­
+proving that claim. By the time of his trial, he had changed 
+his story: He and Stites were having a consensual affair, and 
+someone else—perhaps her jealous fancé—had committed 
+the murder. The jury rejected that post hoc narrative and 
+found Reed guilty. In the separate penalty phase, Reed's 
+kidnaping victim testifed about how Reed had abducted, 
+threatened, and attempted to rape her before she was fortu­
+itously able to escape. Four other women—and one under­
+age girl—also testifed that Reed had brutally beaten and 
+raped them in the past. Reed was sentenced to death. 
+The CCA affrmed Reed's conviction and sentence in 2000. 
+In the 23 years since, he has kept up a constant stream of 
+postconviction flings asserting his innocence. Every few 
+years, Reed's lawyers have produced a new theory and a new 
+purportedly exculpatory affdavit. With the patience of Job, 
+the Texas courts have duly considered them all. On one 
+such occasion, the CCA noted “the complete lack of a cohe­
+sive theory of innocence” across Reed's unending series of 
+attempts to relitigate his guilt. Ex parte Reed, 271 S. W. 3d 
+698, 746 (2008).1 
+1 One example encapsulates the meritlessness of those attempts. In one 
+of his many state postconviction proceedings, Reed submitted an affdavit 
+from his own father, Walter, stating that an acquaintance had told him 
+that he knew where Stites was the night she died. Reed submitted no 
+
+Page Proof Pending Publication
+240 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+B 
+In Texas, a convict has two distinct avenues to obtain post-
+conviction DNA testing of evidence—one executive and dis­
+cretionary, the other judicial and legal. As for the frst, the 
+convict can attempt to reach an agreement with the district 
+attorney, who has broad discretion to order or allow DNA 
+testing. See Tr. of Oral Arg. 39–40. In the case of the sec­
+ond, the convict can fle a motion under Tex. Code Crim. 
+Proc. Ann., Arts. 64.01 through 64.05 (Vernon 2018) (Chapter 
+64), which requires “the convicting court” to “order testing” 
+if the movant establishes certain requirements. Ex parte 
+Gutierrez, 337 S. W. 3d 883, 889–890 (Tex. Crim. App. 2011). 
+In 2014, on the same day that the trial court held a hearing 
+to set Reed's execution date, Reed fled a Chapter 64 motion 
+for DNA testing of a large number of items. The district 
+attorney consented to test some of the items outside of the 
+Chapter 64 framework, but he otherwise opposed Reed's re­
+quest. The trial court denied the motion, fnding that Reed 
+had not established two necessary elements for Chapter 64 
+testing: (1) that he “would not have been convicted if excul­
+patory results had been obtained through DNA testing,” 
+Art. 64.03(a)(2)(A); and (2) that his Chapter 64 motion was 
+“not made to unreasonably delay the execution of sentence 
+or administration of justice,” Art. 64.03(a)(2)(B). Reed ap­
+pealed, and the CCA remanded for the trial court to address 
+the other elements of the Chapter 64 rubric. After making 
+supplemental fndings, the trial court again denied Reed's 
+motion, and Reed again appealed. 
+In April 2017, the CCA issued an opinion affrming the 
+trial court. First, the CCA held that the record supported 
+the trial court's fnding that many of the items had not “been 
+affdavit from the acquaintance. The State then obtained an affdavit 
+from the acquaintance, in which he swore that he “ `never told Walter Reed 
+that I knew where Stacey Stites was on the night she was killed. All I 
+ever told Walter was that Rodney Reed was a crackhead who raped girls 
+on the [railroad] tracks. I have no idea where Stacey Stites was when 
+she died.' ” 271 S. W. 3d, at 736. 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 230 (2023) 
+241 
+Thomas, J., dissenting 
+subjected to a chain of custody suffcient to establish that 
+[they had] not been substituted, tampered with, replaced, or 
+altered in any material respect.” Art. 64.03(a)(1)(A)(ii); see 
+Reed v. State, 541 S. W. 3d 759, 769–770. Second, it held 
+that Reed had not shown “a reasonable likelihood” that many 
+of the items “contain[ed] biological material suitable for 
+DNA testing.” Art. 64.03(a)(1)(B); see 541 S. W. 3d, at 772. 
+Third, addressing only the items that survived the previous 
+two holdings, the CCA held that Reed had not established 
+that exculpatory results from DNA testing of those items 
+would have prevented his conviction. See id., at 773–777. 
+Finally, the CCA held that Reed had failed to establish that 
+his Chapter 64 motion was not made for purposes of delay. 
+See id., at 777–780. The CCA noted that “Chapter 64 had 
+existed with only slight variations for over thirteen years at 
+the time Reed fled his motion,” and that Reed's motion was 
+suspiciously fled “on the same day the judge heard the 
+State's motion to set an execution date.” Id., at 779. 
+Reed moved for rehearing, arguing that the CCA had mis­
+applied the Chapter 64 elements and asserting, in broad 
+terms, that those errors violated his due process rights. 
+See App. to Pet. for Cert. in Reed v. Texas, O. T. 2017, No. 
+17–1093, pp. 263a–272a. The CCA denied rehearing by sum­
+mary order in October 2017. 
+Reed then timely petitioned this Court for a writ of certio­
+rari to review the CCA's judgment. His petition contended 
+that the CCA's judgment “violate[d his] due process rights” 
+because it was based on “arbitrary and fundamentally un­
+fair interpretation[s]” of Chapter 64's chain-of-custody and 
+unreasonable-delay elements. Pet. for Cert. in No. 17–1093, 
+pp. i–ii. We denied certiorari. See Reed v. Texas, 585 
+U. S. ––– (2018). 
+C 
+In August 2019, Reed sued the district attorney under 
+Rev. Stat. § 1979, 42 U. S. C. § 1983, in the U. S. District 
+Court for the Western District of Texas. As relevant here, 
+Reed's complaint alleges that he successfully “proved each 
+
+Page Proof Pending Publication
+242 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+of the statutory requirements of [Chapter] 64” in the state-
+court proceedings, App. 31, ¶52, but that “the CCA's adop­
+tion of non-statutory criteria to preclude . . . Reed from test­
+ing key trial evidence to prove his innocence violate[d] fun­
+damental notions of fairness and denie[d] him due process of 
+law,” id., at 14, ¶2. Reed proceeds to allege “several ways” 
+in which “[t]he CCA's interpretation and application of 
+[Chapter] 64 violate[d] fundamental fairness,” id., at 41, ¶79, 
+with particular focus on the CCA's allegedly arbitrary con­
+structions of the chain-of-custody, unreasonable-delay, and 
+exculpatory-results elements, see id., at 41–42, ¶¶79–81; 43– 
+45, ¶¶84–87. For relief, “Reed seeks a declaration that 
+[Chapter] 64, as interpreted, construed and applied by the 
+Texas courts to deny his motion for DNA testing, violates 
+his rights under” the Constitution. Id., at 14, ¶3; see also 
+id., at 49 (prayer for relief ). 
+The district attorney moved to dismiss Reed's complaint 
+for lack of subject-matter jurisdiction and for failure to state 
+a claim. See Fed. Rules Civ. Proc. 12(b)(1) and (b)(6). The 
+District Court held that it had jurisdiction but dismissed 
+Reed's complaint on the merits, concluding that Reed had 
+alleged only “that he disagree[d] with the state court's con­
+struction of Texas law” and that none of the issues in the 
+complaint “r[ose] to the level of a procedural due-process vio­
+lation.” 2019 WL 12073901, *7 (WD Tex., Nov. 15, 2019). 
+The Fifth Circuit affrmed on the alternative ground that 
+Reed's claim was untimely: Applying Texas' 2-year statute 
+of limitations for personal-injury claims, it reasoned that 
+Reed's due process claim accrued when the trial court frst 
+denied his Chapter 64 motion, rendering his complaint sev­
+eral years too late. 995 F. 3d 425, 431 (2021). 
+II 
+Two intertwined principles of federal jurisdiction—Article 
+III standing and the Rooker-Feldman doctrine2—mandate a 
+2 See District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 
+(1983); Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923). 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 230 (2023) 
+243 
+Thomas, J., dissenting 
+fnding that the District Court lacked jurisdiction over this 
+action. The majority gives short shrift to these principles, 
+and its holding that Reed's claim was timely serves only to 
+underscore its antecedent jurisdictional errors. 
+A 
+The Constitution limits the federal courts' jurisdiction to 
+“Cases” and “Controversies,” Art. III, § 2, cl. 1, constraining 
+judicial power to “the determination of real, earnest and 
+vital controvers[ies] between” contending litigants. Chi­
+cago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 
+(1892). “[A]n essential and unchanging part of [this] case­
+or-controversy requirement” is the doctrine of Article III 
+standing. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 
+(1992). Under that doctrine, any party requesting relief 
+from a federal court must assert “an injury” that is “con­
+crete, particularized, and actual or imminent,” and he must 
+show that his injury is both “fairly traceable to the chal­
+lenged action” and “redressable by a favorable ruling.” 
+Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 149 
+(2010); see also Town of Chester v. Laroe Estates, Inc., 581 
+U. S. 433, 438–439 (2017). Absent that showing, the court 
+has no jurisdiction and thus no “power to adjudicate the 
+case.” Steel Co. v. Citizens for Better Environment, 523 
+U. S. 83, 89 (1998) (emphasis deleted). 
+Jurisdiction, moreover, comes in two types—original and 
+appellate—and the application of the Article III standing el­
+ements is interwoven with that constitutionally grounded 
+distinction. See Art. III, § 2, cl. 2. In an original case or 
+controversy, the plaintiff traces his injury “to the defendant's 
+allegedly unlawful conduct,” Allen v. Wright, 468 U. S. 737, 
+751 (1984), and, correspondingly, seeks a remedy that runs 
+against the defendant and determines that defendant's duties 
+or liabilities (e. g., a judgment for money damages or an in­
+junction). On the other hand, “[t]he criterion which distin­
+guishes appellate from original jurisdiction, is that it revises 
+and corrects the decisions of another tribunal.” Ex parte 
+
+Page Proof Pending Publication
+244 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+Bollman, 4 Cranch 75, 86 (1807); see also Marbury v. Madi­
+son, 1 Cranch 137, 175–176 (1803). As such, a case or contro­
+versy is appellate in nature when the relief-seeking party's 
+injury is traceable to the allegedly erroneous action of an­
+other court and requires a remedy correcting that judicial 
+action (e. g., reversal or vacatur of the challenged judgment).3 
+See, e. g., Food Marketing Institute v. Argus Leader Media, 
+588 U. S. –––, ––– – ––– (2019); Monsanto, 561 U. S., at 150– 
+153. Thus, whenever a party seeks relief from a federal 
+court, the elements that bring his claim within Article III in 
+the frst place—the nature and source of his injury and the 
+remedy needed to redress it—also dictate whether his claim 
+invokes original or appellate jurisdiction. 
+The conceptual distinction between original and appellate 
+jurisdiction also animates the Rooker-Feldman doctrine— 
+which, despite its name, is not so much a “doctrine” as a basic 
+fact of federal statutory law. This Court has discretionary 
+appellate jurisdiction to review certain state-court judg­
+ments by certiorari. 28 U. S. C. § 1257(a). But no other 
+federal court has appellate jurisdiction over state-court judg­
+3 The limited exceptions to these generalizations only prove the rules. 
+Appellate courts sometimes issue remedies that operate directly on the 
+parties (e. g., injunctions pending appeal), but such remedies are “extra­
+ordinary” and appropriate only when “ `in aid of ' ” the court's primary ap­
+pellate jurisdiction. Wisconsin Right to Life, Inc. v. Federal Election 
+Comm'n, 542 U. S. 1305, 1305–1306 (2004) (Rehnquist, C. J., in chambers) 
+(quoting 28 U. S. C. § 1651(a) (2000 ed.)). And, while certain original reme­
+dies, like declaratory judgments and quiet title decrees, do not necessarily 
+impose new duties on the losing defendant, they conclusively establish the 
+parties' legal relations from which such duties fow. See Nashville, C. & 
+St. L. R. Co. v. Wallace, 288 U. S. 249, 261–265 (1933). Signifcantly, this 
+Court has long held that an action for declaratory relief alone implicates 
+the same constitutional “case or controversy” as would an action for coer­
+cive relief involving the same parties and subject matter, see ibid., and 
+that declaratory relief “cannot alone supply jurisdiction otherwise absent,” 
+California v. Texas, 593 U. S. –––, ––– (2021); see also R. Fallon, J. Man­
+ning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts 
+and the Federal System 841 (7th ed. 2015). 
+
+Page Proof Pending Publication
+245 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+ments, and, in particular, “[t]he jurisdiction possessed by the 
+District Courts is strictly original.” Rooker v. Fidelity 
+Trust Co., 263 U. S. 413, 416 (1923); see, e. g., 28 U. S. C. §1331 
+(“The district courts shall have original jurisdiction of all 
+civil actions arising under [federal law]”). Thus, if the los­
+ing party in a state judicial proceeding “claim[s] that the 
+state judgment itself violates [his] federal rights”—a claim 
+that calls for an exercise of appellate jurisdiction—his only 
+remedy in the federal system is certiorari in this Court. 
+Johnson v. De Grandy, 512 U. S. 997, 1006 (1994). He may 
+not “see[k] what in substance would be appellate review of 
+the state judgment” under the guise of an original action in 
+federal district court. Id., at 1005–1006; see also Exxon 
+Mobil Corp. v. Saudi Basic Industries Corp., 544 U. S. 280, 
+284–285 (2005); District of Columbia Court of Appeals v. 
+Feldman, 460 U. S. 462, 482–488, and nn. 15, 16 (1983). 
+Yet, that is precisely what Reed has done here. While his 
+complaint purports to bring an original action against the 
+district attorney, in reality, it seeks appellate review to re­
+dress an alleged injury inficted by the CCA's adverse de­
+cision “in [his] particular cas[e].” Id., at 487, n. 18. The 
+gravamen of Reed's claim—made clear again and again 
+throughout his complaint—is that the CCA violated his due 
+process rights through its reasoning in his case. See, e. g., 
+App. 14, ¶2; 31–33, ¶¶53–57; 38, ¶69; 39–40, ¶¶71, 74; 41, 
+¶79; 42–43, ¶¶83–84; 44–45, ¶¶86–87. All of those alleged 
+injuries are traceable to the CCA, not the district attorney. 
+And, redressing them would require an exercise of appellate 
+jurisdiction over the CCA—jurisdiction that the District 
+Court does not have. Confrming the point, Reed's com­
+plaint does not ask the District Court to control the district 
+attorney's actions at all. Instead, the only relief it requests 
+is “[a] declaration that the CCA's interpretation and applica­
+tion of [Chapter] 64 . . . is unconstitutional.” Id., at 49. The 
+complaint transparently seeks nothing more than the Dis­
+trict Court's “review and rejection” of the CCA's judgment. 
+
+Page Proof Pending Publication
+246 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+Exxon Mobil, 544 U. S., at 284. As such, it founders upon 
+the Rooker-Feldman doctrine as well as the Article III 
+traceability and redressability requirements with which that 
+doctrine is intertwined. 
+Any doubt that Reed seeks de facto appellate review 
+should be dispelled by one undisputed fact: Every due proc­
+ess violation that Reed alleges could have been considered 
+on direct review of the CCA's judgment in this Court. 
+After all, determining whether state-court judgments ap­
+plied unconstitutional constructions of state law is a classic 
+use of this Court's appellate jurisdiction under § 1257(a). 
+See, e. g., Rogers v. Tennessee, 532 U. S. 451, 453 (2001); 
+Bouie v. City of Columbia, 378 U. S. 347, 349 (1964); 
+Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U. S. 673, 678 
+(1930). That is why Reed originally petitioned this Court 
+for certiorari to review the CCA's judgment. And it is why 
+he agreed at oral argument that we could have granted that 
+petition. See Tr. of Oral Arg. 32–33. 
+Yet, even after repackaging his failed certiorari petition 
+as an original § 1983 complaint, Reed not only concedes but 
+affrmatively argues that his claim is analogous to the due 
+process arguments presented in Rogers, Bouie, and 
+Brinkerhoff-Faris. See Brief for Petitioner 33–34. That 
+he is correct on that front should be fatal to his complaint. 
+Like the petitioners in those cases, Reed contends that the 
+rules of decision applied against him in a state-court pro­
+ceeding violated his due process rights. Because those con­
+tentions would have been appropriate subjects for this 
+Court's appellate review, it follows that Reed cannot press 
+the same due process challenges and seek the same relief in 
+an original action in the District Court. See Feldman, 460 
+U. S., at 482–486, and n. 15; accord, id., at 489 (Stevens, J., 
+dissenting). 
+In holding otherwise, the majority improperly separates 
+the Rooker-Feldman and Article III inquiries and applies a 
+different theory of Reed's claim to each. But, Reed's claim 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 230 (2023) 
+247 
+Thomas, J., dissenting 
+must satisfy two conditions at once: It must implicate an Ar­
+ticle III case or controversy between the parties to this ac­
+tion, and that case or controversy must fall within the Dis­
+trict Court's “strictly original” jurisdiction. Rooker, 263 
+U. S., at 416. The majority articulates no theory of how 
+Reed's claim can satisfy both conditions. That is because 
+there is no such theory. 
+A useful way to view this is to work backwards from the 
+majority's Rooker-Feldman holding. The majority accepts 
+Reed's representation that he “does `not challenge the ad­
+verse' state-court decisions themselves,” but only “ `targets 
+as unconstitutional the Texas statute [Chapter 64] they au­
+thoritatively construed.' ” Ante, at 235 (quoting Skinner v. 
+Switzer, 562 U. S. 521, 532 (2011)). But this workaround to 
+Rooker-Feldman raises a glaring Article III problem: As 
+this Court has repeatedly explained, a federal court may not 
+entertain a free-foating challenge to a statute unmoored 
+from a concrete case or controversy. See, e. g., California v. 
+Texas, 593 U. S. –––, ––– – ––– (2021); Valley Forge Christian 
+College v. Americans United for Separation of Church and 
+State, Inc., 454 U. S. 464, 471–472 (1982); Massachusetts v. 
+Mellon, 262 U. S. 447, 488 (1923); Muskrat v. United States, 
+219 U. S. 346, 360–362 (1911). Unless Reed merely seeks an 
+advisory opinion, his due process challenge to Chapter 64 
+must seek relief from some concrete enforcement or applica­
+tion of that law that affects him. More specifcally, Reed 
+must be challenging either (1) some conduct of the district 
+attorney constituting enforcement of Chapter 64 against him 
+or (2) the CCA's application of Chapter 64 as a rule of de­
+cision in his case.4 
+If it is the former, Reed's suit is origi­
+4 I acknowledge that our most recent DNA-testing precedent, Skinner 
+v. Switzer, 562 U. S. 521 (2011), contains loose language suggesting that 
+Skinner's due process claim challenged neither “the [defendant] prosecu­
+tor's conduct [n]or the decisions reached by the CCA” in his case, but only 
+“Texas' postconviction DNA statute `as construed' by the Texas courts.” 
+Id., at 530. But, the majority surely cannot think that federal courts have 
+
+Page Proof Pending Publication
+248 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+nal; if it is the latter, it requires an exercise of appellate 
+jurisdiction. 
+So, which is it? As already indicated, the correct answer 
+is the latter: Fundamentally, Reed's complaint—like his cer­
+tiorari petition before it—contests how “the Texas courts” 
+“interpreted, construed[,] and applied” Chapter 64 “to deny 
+his motion for DNA testing,” App. 14, ¶3, which is why the 
+only relief he requests is an abstract “declaration that the 
+CCA's interpretation and application of [Chapter] 64 . . . is 
+unconstitutional.” Id., at 49. The idea that his claim “does 
+not challenge the adverse state-court decisions,” ante, at 235 
+(internal quotation marks omitted), cannot survive even a 
+cursory examination of his complaint. See supra, at 245. 
+Nor would the other possibility make any sense. Reed 
+cannot be seeking relief from the district attorney's enforce­
+ment of Chapter 64, because the district attorney has not 
+enforced that law against Reed at all. The sum total of the 
+district attorney's relevant conduct is as follows. First, he 
+declined to order Reed's desired testing in his executive dis­
+cretion, independent of Chapter 64. Next, when Reed asked 
+the Texas courts to grant testing under Chapter 64, the dis­
+trict attorney opposed his motion. Finally, after Reed's mo­
+tion proved unsuccessful, the district attorney continued to 
+subject-matter jurisdiction over challenges to statutes in the abstract, nor 
+does Skinner actually stand for that proposition. Skinner's only jurisdic­
+tional holding was that the petitioner's claim was not barred by Rooker-
+Feldman. See 562 U. S., at 532–533. Skinner did not address Article III 
+standing and thus has “ `no precedential effect' ” on that issue. Arbaugh 
+v. Y & H Corp., 546 U. S. 500, 511 (2006). Yet, for the curious, Skinner's 
+complaint did in fact allege that the defendant prosecutor was violating 
+his due process rights through her conduct, and it expressly requested 
+injunctive relief against her. See App. in Skinner v. Switzer, O. T. 2010, 
+No. 09–9000, pp. 5–6, ¶¶1–2; 20–21, ¶33; 22, ¶37. Thus, Skinner's claim 
+as pleaded clearly was original in nature, but for precisely the same rea­
+sons that Reed's is not: Where Skinner claimed injury from and sought 
+relief against the party whom he had sued, Reed claims injury from and 
+seeks relief against an adverse judicial decision. 
+
+Page Proof Pending Publication
+249 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+decline to order Reed's desired testing. To say that this 
+conduct amounts to enforcing Chapter 64 makes as much 
+sense as saying that a party to a discovery dispute, who de­
+feats a motion to compel, in effect, “enforces” the Federal 
+Rules of Civil Procedure by continuing not to turn over the 
+demanded documents. Again, any due process injury that 
+Chapter 64 has caused Reed is traceable to the CCA's judicial 
+application of that law in his case, not to any executive acts 
+or omissions of the district attorney. 
+The majority permits Reed to evade that problem by fram­
+ing his Article III injury as the mere lack of access to his 
+desired evidence, independent of any alleged due process de­
+nial. See ante, at 234. But, if framing Reed's injury that 
+way helps with traceability, it only worsens his redressabil­
+ity problem. Suppose that the District Court accepted 
+Reed's due process arguments and issued his requested re­
+lief: an abstract declaration that the interpretation of Chap­
+ter 64 that the CCA applied in his case is unconstitutional. 
+How, exactly, would that redress Reed's injury of not having 
+the evidence tested? The CCA's Chapter 64 judgment 
+would remain untouched; Reed would have obtained an opin­
+ion disapproving its reasoning, but without any appellate 
+“revis[ion] and correct[ion]” to disturb its fnality. Bollman, 
+4 Cranch, at 86. Nor would a declaration that the CCA's 
+construction of Chapter 64 was unconstitutional imply any­
+thing about the district attorney's duties or liabilities. 
+The majority asserts that such a declaration would cause 
+“ `a signifcant increase in the likelihood' ” that the district 
+attorney would grant Reed's desired testing. Ante, at 234 
+(quoting Utah v. Evans, 536 U. S. 452, 464 (2002)). But the 
+district attorney has made clear that he does not understand 
+Reed's requested relief to “require any change in conduct” 
+from him and that it is not “likely to bring about such 
+change.” Brief for Respondent 38–39. If the majority 
+thinks the district attorney is wrong about that, it would 
+only be fair to explain exactly what change in conduct would 
+
+Page Proof Pending Publication
+250 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+be legally required of him if Reed prevailed on his due proc­
+ess claim. The majority fails to do so.5 
+Instead, it offers a number of vague pronouncements, all of 
+which wilt under scrutiny. Consider the claim that Reed's 
+victory in this action would “eliminate the [district attor­
+ney's] justifcation for denying DNA testing.” Ante, at 234. 
+If this means that Reed's requested relief would entitle him 
+to testing under Chapter 64, it is wrong because the CCA's 
+unreversed judgment would stand as a fnal, binding deter­
+mination of Reed's Chapter 64 rights even if the District 
+Court were to declare that, in its opinion, the CCA had ap­
+plied that law unconstitutionally in Reed's case. Alterna­
+tively, if the majority means that the success of Reed's due 
+process claim would require the district attorney to permit 
+testing in his independent executive discretion, it is also 
+wrong because Reed is not challenging the district attorney's 
+denial of discretionary testing as unlawful—only the CCA's 
+“interpretation and application of [Chapter] 64.” App. 49. 
+The majority also misses the mark when it asserts that it 
+is “substantially likely that the [district attorney] would 
+abide by [Reed's requested] court order.” Ante, at 234 (in­
+ternal quotation marks omitted). Again, the only “court 
+order” Reed seeks is a declaration disapproving the legal un­
+derpinnings of the CCA's judgment. Such an “order” would 
+have no bearing on the district attorney's future conduct; in a 
+literal sense, there would be nothing for him to “abide by.” 
+Finally, the majority says that the District Court “ `would 
+have ordered a change in a legal status' ” were it to grant 
+5 This failure will have troubling consequences if Reed's claim ever prog­
+resses beyond the pleading stage. To survive summary judgment, Reed 
+cannot “rest on mere allegations, but must set forth by affdavit or other 
+evidence specifc facts” showing that his requested relief will make it like­
+lier that he obtains the desired testing. Clapper v. Amnesty Int'l USA, 
+568 U. S. 398, 412 (2013) (alteration and internal quotation marks omitted). 
+It is far from clear what such a showing would entail, and the majority 
+leaves the parties in the dark. 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 230 (2023) 
+251 
+Thomas, J., dissenting 
+the declaration Reed seeks. Ibid. (quoting Utah, 536 U. S., 
+at 464). The intended meaning of this statement is com­
+pletely obscure. The “status” that the majority has in mind 
+cannot be that of Chapter 64 itself. See California, 593 
+U. S., at ––– (explaining that judicial remedies “ `operate with 
+respect to specifc parties,' ” not “ `on legal rules in the ab­
+stract' ”); see also Mellon, 262 U. S., at 488 (explaining that 
+courts “have no power per se to review and annul [statutes] 
+on the ground that they are unconstitutional,” only “the neg­
+ative power to disregard an unconstitutional enactment” 
+when “declaring the law applicable to [a justiciable] contro­
+versy”). Nor can the majority mean that the District Court 
+could change the “status” of the CCA's judgment. In real­
+ity, the only way that the District Court could possibly help 
+Reed obtain DNA testing is by directly controlling the dis­
+trict attorney's actions. But, again, Reed's complaint nei­
+ther requests nor sets forth a basis for any such relief.6 
+6 This case is thus very different from Utah v. Evans, 536 U. S. 452 
+(2002), on which the majority relies heavily (indeed, exclusively). There, 
+as earlier in Franklin v. Massachusetts, 505 U. S. 788 (1992), we held that 
+a State had standing to sue the Secretary of Commerce for injunctive and 
+declaratory relief against an allegedly improper census report that would 
+have diminished the State's congressional delegation. See Utah, 536 
+U. S., at 459–464; Franklin, 505 U. S., at 801–803 (plurality opinion). In 
+both cases, Justice Scalia argued in dissent that redressability was lacking 
+because the causal link between the Secretary's preparation of a new re­
+port and redress of the States' apportionment injuries depended on the 
+actions of other offcials not bound by the court's judgment. See Utah, 
+536 U. S., at 511; Franklin, 505 U. S., at 824–825. The Court answered 
+that objection by “assum[ing]”—in large part because “the Solicitor Gen­
+eral ha[d] not contended to the contrary”—that it was “substantially 
+likely” that those other offcials would cooperate with a judgment in the 
+suing State's favor. Id., at 803 (plurality opinion); see Utah, 536 U. S., at 
+460–461, 463–464. Utah and Franklin thus represent nothing more than 
+a context-specifc application of the settled rule that “standing is not pre­
+cluded” (although it is “more diffcult to establish”) when the connection 
+between the defendant's court-ordered remedial conduct and ultimate re­
+dress of the plaintiff 's injury partly depends on the actions of third par­
+ties. Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992) (internal 
+
+Page Proof Pending Publication
+252 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+In sum, there is no getting around the essential problem 
+with Reed's due process claim: To the extent he is not merely 
+seeking an advisory opinion, he is complaining about a court-
+inficted injury, and redressing that injury would require an 
+exercise of appellate jurisdiction that the District Court does 
+not possess. In substance, his complaint in this action is a 
+mere reprise of his prior certiorari petition, camoufaged as 
+an original action against the district attorney. Thus, I 
+would vacate the Fifth Circuit's judgment and remand this 
+case to the District Court with instructions to dismiss the 
+complaint for lack of subject-matter jurisdiction. 
+B 
+The majority next holds that Reed's § 1983 due process 
+claim was timely because it did not accrue until the CCA 
+denied rehearing. The little reasoning the majority offers 
+for this conclusion helpfully accentuates its antecedent juris­
+dictional errors. 
+First, the majority points out that a procedural due proc­
+ess claim is not necessarily “ `complete when the deprivation 
+occurs,' ” but “only when `the State fails to provide due proc­
+ess.' ” Ante, at 236 (quoting Zinermon v. Burch, 494 U. S. 
+113, 126 (1990)). Yet, “the general rule” is that due process 
+itself “requir[es] predeprivation notice and hearing,” so the 
+truism for which the majority quotes Zinermon matters only 
+in those “extraordinary situations” in which “[w]e toler­
+ate” postdeprivation process as suffcient. United States v. 
+James Daniel Good Real Property, 510 U. S. 43, 53 (1993) 
+(internal quotation marks omitted); see Zinermon, 494 U. S., 
+at 127–130. The majority proceeds to show, however, that 
+it does not regard this case as a postdeprivation case at all, 
+quotation marks omitted). Here, by contrast, the majority fnds redress-
+ability in an abstract declaration—in truth, an advisory opinion—that 
+would not require any change in conduct on the part of the only defendant 
+in this case. Nothing in our precedents supports that holding. 
+
+Page Proof Pending Publication
+253 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+for it says that the State “deprived Reed of his asserted 
+liberty interest in DNA testing” at the very moment when 
+“the State's alleged failure to provide Reed with a fundamen­
+tally fair process was complete.” Ante, at 236. Given this 
+understanding of Reed's claim, the “[i]mportan[t]” proposi­
+tion with which the majority begins its analysis is doctrinally 
+irrelevant. Ibid. 
+After that red herring, the majority engages in an obvious 
+equivocation, confating the Chapter 64 “process” that Reed 
+challenges as “fundamentally unfair” with the Texas courts' 
+generally applicable decisional procedures. Ibid. But of 
+course, those procedures are not what Reed challenges. In­
+stead (and, again, exactly like the arguments in his prior 
+certiorari petition), his due process claim “ `targets as uncon­
+stitutional' ” the substantive requirements of Chapter 64 as 
+construed. Ante, at 235. His claim plainly would be no dif­
+ferent if the CCA did not entertain rehearing motions. 
+Still, the majority's confused accrual reasoning is useful 
+for the added light that it shines on Reed's jurisdictional 
+problems. As the majority says, a procedural due process 
+claim has two elements: (1) a deprivation and (2) inadequate 
+process. The majority then acknowledges that the state 
+courts effectuated Reed's deprivation, and it treats the state 
+courts' ordinary decisional mechanics as the allegedly inade­
+quate process. But, after both elements of Reed's claim are 
+thus laid at the feet of the state courts, what role is left 
+for the nominal defendant here, the district attorney? What 
+part did he play in violating Reed's procedural due process 
+rights, and what makes him a proper defendant to Reed's 
+§ 1983 claim? 
+The majority has no answer. At bottom, its approval of 
+Reed's claim is intelligible only upon the supposition that the 
+district attorney may be sued as a mere stand-in for the 
+State as a whole, such that Reed can urge against him the 
+due process violations that the State allegedly committed 
+through its courts. That is a profound mistake. True, the 
+
+Page Proof Pending Publication
+254 
+REED v. GOERTZ 
+Thomas, J., dissenting 
+district attorney and the CCA are both state actors. But, 
+States act in different ways through their different entities 
+and offcers, and the nature of a challenged state action de­
+termines what federal-court remedy may be available. 
+As this Court has explained, “[a] State acts by its legisla­
+tive, its executive, or its judicial authorities,” and “in no 
+other way.” Ex parte Virginia, 100 U. S. 339, 347 (1880). 
+The Due Process Clause applies to action through any of 
+these agencies, ibid., but not every alleged due process viola­
+tion may be asserted in an original § 1983 action. By itself, 
+a State's legislative enactment of an unconstitutional law 
+does not give rise to a justiciable case or controversy. See 
+California, 593 U. S., at ––– – –––; Muskrat, 219 U. S., at 361. 
+Next, when a State allegedly violates due process through 
+executive action, the aggrieved party may bring an original 
+action for appropriate relief against the relevant executive 
+offcer. See Mellon, 262 U. S., at 488; Ex parte Young, 209 
+U. S. 123 (1908).7 
+And, when a State allegedly violates due 
+7 Young cautioned that, 
+“[i]n making an offcer of the State a party defendant in a suit to enjoin 
+the enforcement of an act alleged to be unconstitutional[,] it is plain that 
+such offcer must have some connection with the enforcement of the act, 
+or else it is merely making him a party as a representative of the State, 
+and thereby attempting to make the State a party.” 209 U. S., at 157 
+(emphasis added). 
+Invoking this language, the district attorney argues that Reed's suit is 
+independently barred by state sovereign immunity, in addition to Article 
+III and the Rooker-Feldman doctrine. 
+It appears fairly debatable 
+whether the “connection” requirement described in Young is best under­
+stood as a precondition to Young's sovereign-immunity exception or as a 
+simple application of Article III traceability. Compare Okpalobi v. Fos­
+ter, 244 F. 3d 405, 410–424 (CA5 2001) (en banc) (plurality opinion) (taking 
+the former view), with id., at 439 (Benavides, J., concurring in part and 
+dissenting in part) (arguing that “modern standing doctrine has subsumed 
+the connection inquiry”). I see no need to tackle that question here, since 
+Article III and Rooker-Feldman amply establish the jurisdictional impro­
+priety of Reed's suit. I add only that, on either interpretation, Young 
+makes it clear that a state offcer cannot be sued “as a representative of 
+the State” writ large—rather, he can only be sued for legal violations 
+attributable to his own offce. 
+
+Page Proof Pending Publication
+255 
+Cite as: 598 U. S. 230 (2023) 
+Thomas, J., dissenting 
+process through its judicial actions—be it through the denial 
+of a fundamentally fair judicial procedure or through the ap­
+plication of a rule of decision that itself violates due proc­
+ess—the remedy that Congress has provided is appellate 
+“review of the [challenged] judgmen[t] in this Court.” Feld­
+man, 460 U. S., at 482; see, e. g., Rogers, 532 U. S., at 453; 
+Bouie, 378 U. S., at 349; Brinkerhoff-Faris, 281 U. S., at 678; 
+cf. Stop the Beach Renourishment, Inc. v. Florida Dept. of 
+Environmental Protection, 560 U. S. 702 (2010) (reviewing 
+judicial-taking claim on certiorari to the challenged state-
+court judgment). But, if that remedy proves unsuccessful— 
+as it did for Reed—the aggrieved party cannot simply substi­
+tute an executive offcer as a defendant, charge the state 
+court's errors to that offcer, and seek redress for a court-
+inficted injury in a purported original action. 
+Properly understood, therefore, Article III, the Rooker-
+Feldman doctrine, and procedural due process principles 
+work in harmony. The majority's piecemeal analysis re­
+places this natural coherence with chaos. It dilutes Arti­
+cle III's traceability and redressability requirements to the 
+point of irrelevance. It creates a system in which the same 
+state-court actions simultaneously give rise to identical orig­
+inal and appellate claims for relief. See this Court's Rule 
+13.3 (“[T]he time to fle [a] petition for a writ of certiorari 
+. . . runs from the date of the denial of rehearing” by the 
+lower court). It allows Reed to convert his failed certiorari 
+petition into a § 1983 complaint. And, in doing so, it author­
+izes a proceeding in which the District Court can do nothing 
+except opine on the constitutional merits of a state-court 
+adjudication. 
+*
+*
+* 
+If there is a mitigating factor to today's decision, it is that 
+the § 1983 action that the Court misguidedly allows to pro­
+ceed is no barrier to the prompt execution of Reed's lawful 
+sentence. See Hill v. McDonough, 547 U. S. 573, 583–584 
+(2006). Indeed, Reed conceded at oral argument “that you 
+do not get a stay of execution just because you brought [a 
+
+Page Proof Pending Publication
+256 
+REED v. GOERTZ 
+Alito, J., dissenting 
+Chapter] 64 proceeding or just because you're in [§ ]1983 pro­
+ceedings . . . challenging the adequacy of the procedures 
+available to you from the state.” Tr. of Oral Arg. 68. Texas 
+is free to take him at his word. But, because the majority 
+undermines vital principles of federal jurisdiction and desta­
+bilizes the orderly working of our judicial system, I respect­
+fully dissent. 
+Justice Alito, with whom Justice Gorsuch joins, 
+dissenting. 
+This case involves a suit brought by petitioner Rodney 
+Reed under Rev. Stat. § 1979, 42 U. S. C. § 1983, against 
+Bryan Goertz, the District Attorney of Bastrop County, 
+Texas. Reed claims that Goertz violated his due process 
+rights when, based on the Texas Court of Criminal Appeals' 
+interpretation of the Texas statute that allows post-trial 
+DNA testing under specifed circumstances, Article 64 of the 
+Texas Code of Criminal Procedure, Goertz continued to deny 
+Reed's request for DNA testing of certain items found near 
+the scene of the murder for which he was convicted 25 
+years ago. 
+As the Court notes and the parties agree, the statute of 
+limitations for Reed's claim is two years. Ante, at 235; Brief 
+for Petitioner 17; Brief for Respondent 17. Reed fled his 
+complaint on August 8, 2019, and the lower courts held that 
+this was too late. The question before us is when the 2-year 
+statute of limitations began to run, that is in legal parlance, 
+when Reed's claim “accrued.” As the parties agree, the 
+general rule is that a claim accrues when the plaintiff has “a 
+complete and present cause of action,” Wallace v. Kato, 549 
+U. S. 384, 388 (2007) (internal quotation marks omitted). 
+Reed contends that his claim did not accrue until the Texas 
+Court of Criminal Appeals (CCA) denied his petition for re­
+hearing on October 4, 2017, and thus refused to retract the 
+interpretation of Article 64 that the court had unanimously 
+adopted on April 12, 2017. Goertz, on the other hand, ar­
+
+Page Proof Pending Publication
+257 
+Cite as: 598 U. S. 230 (2023) 
+Alito, J., dissenting 
+gues that Reed's claim accrued no later than the date of the 
+CCA's April 12 decision, and because that date preceded the 
+federal lawsuit by more than two years, Goertz maintains 
+that we should affrm the Fifth Circuit's decision that Reed's 
+complaint was fled too late. 
+As I will explain, there is room for debate about exactly 
+when Reed's DNA testing claim accrued, but in my view, the 
+notion that this did not take place until rehearing was denied 
+is clearly wrong. 
+I 
+Before getting to the nub of this case, I briefy explain 
+why Reed's claim might have accrued even earlier than April 
+12, 2017. First, it can be argued that Reed's claim against 
+Goertz accrued on or before July 2014, when Goertz initially 
+refused Reed's testing request.1 
+The general rule is that a 
+plaintiff 's § 1983 claim against a state offcial for violating a 
+constitutional right accrues when the alleged violation takes 
+place. See Wallace, 549 U. S., at 388 (§ 1983 claim “normally 
+commence[s] to run” from when wrong occurs). And the 
+Court does not disclaim the possibility that a plaintiff could 
+fle a § 1983 claim as soon as a state prosecutor denies a DNA 
+testing request. See ante, at 237, and n. 1. 
+Another possibility is that the particular claim Reed now 
+asserts did not accrue until the state trial court held that 
+Goertz had properly denied Reed's testing request. Reed 
+does not claim that the bare text of Article 64 is unconstitu­
+tional. (Had he done so, he could hardly argue, as he does 
+now, that his claim did not accrue until the end of the appel­
+late process.) Instead, he stresses that his claim concerns 
+the state courts' construction of that statute and in particu­
+1 We are told that Reed and Goertz engaged in lengthy negotiations 
+about the testing of certain items prior to the date in July 2014 when Reed 
+fled his claim in the District Court of Bastrop County under Article 64. 
+Brief for Petitioner 13; Brief for Respondent 5–6; see Reed v. State, 541 
+S. W. 3d 759, 779 (Tex. Crim. App. 2017). 
+
+Page Proof Pending Publication
+258 
+REED v. GOERTZ 
+Alito, J., dissenting 
+lar, their holding that the evidence for which testing is 
+sought must not be contaminated. Brief for Petitioner 3, 15, 
+29. In response to this argument, Goertz contends that 
+every allegedly unconstitutional aspect of the judicial inter­
+pretation of the statute was adopted by the time the state 
+trial court issued amended fndings of fact and conclusions of 
+law in 2016, and Goertz therefore takes the position that 
+Reed's unconstitutional-construction claim accrued at that 
+time. Brief for Respondent 18–19. 
+II 
+A 
+For present purposes, it is not necessary to decide whether 
+Reed's claim accrued on either of these two dates. We need 
+only decide whether accrual was put off until the CCA de­
+nied rehearing, and it is clear to me that this delayed accrual 
+date is wrong.2 
+As noted, the claim that Reed asserts is not 
+based on the bare text of Article 64, but on what he claims 
+is an erroneous interpretation of that provision by the Texas 
+courts. He thus submits that his claim accrued when the 
+“authoritative construction of Article 64” that he challenges 
+was pronounced by the CCA. Brief for Petitioner 17. 
+I will assume for the sake of argument that Reed's claim 
+accrued when the CCA issued its “authoritative construction 
+of Article 64,” but I cannot agree with Reed's argument— 
+2 We have noted that a couple special cases can displace that “presump­
+tiv[e]” accrual rule, such as where “a particular claim may not realistically 
+be brought while a violation is ongoing,” or where a special accrual rule 
+governed “the most natural common-law analogy.” McDonough v. Smith, 
+588 U. S. –––, ––– – ––– (2019). But the majority (correctly) does not 
+adopt Reed's view, see Brief for Petitioner 32–39, that this matter raises 
+one of those special cases. Under Reed's theory as expressed as argu­
+ment, he could have proceeded with a claim under Skinner v. Switzer, 562 
+U. S. 521 (2011), at any time in the process. Tr. of Oral Arg. 12 (stating 
+that “a prisoner could exit the state court procedures at any point” and 
+bring a challenge). 
+
+Page Proof Pending Publication
+259 
+Cite as: 598 U. S. 230 (2023) 
+Alito, J., dissenting 
+which the Court conspicuously declines to defend—that the 
+CCA's interpretation did not become “authoritative” until re­
+hearing was denied. 
+Reed cites no authority for the proposition that the fling 
+of a petition for rehearing typically suspends the authorita­
+tive force of an appellate court's decision, and in fact, it ap­
+pears that the opposite is true—as this Court's “GVR” prac­
+tice illustrates. On or shortly after the day when we hand 
+down a decision, we often “GVR” cases in which petitions 
+raising similar issues are pending before us. (That is, we 
+grant the petition, vacate the decision below, and remand 
+the case for reconsideration in light of the decision we have 
+handed down.) On June 30, 2022, for example, we did this 
+in no fewer than 33 cases.3 
+We do not wait to see if a peti­
+tion for rehearing will be fled; nor do we hold off until a 
+mandate is issued or a certifed copy of the judgment is pre­
+pared. See this Court's Rules 45.2 and 45.3. If our deci­
+sions did not become authoritative and binding as soon as 
+they are issued, this practice would be impermissible. 
+There is no reason why decisions of the CCA should be 
+viewed any differently. On the contrary, it appears that the 
+CCA has followed a practice similar to our GVR practice. 
+See Oliver v. State, 872 S. W. 2d 713, 716 (Tex. Crim. App. 
+1994) (vacating judgment and remanding for reconsideration 
+in light of decision on same day). And neither Reed nor the 
+Court has cited any contrary Texas authority. Accordingly, 
+Reed's “authoritative construction” argument became com­
+plete, at the latest, when the CCA adopted that construction 
+on April 12, 2017, two years and 11 months before Reed fled 
+his § 1983 complaint. 
+B 
+Unlike Reed, the Court does not contend that the CCA's 
+interpretation lacked “authoritative” status until rehearing 
+3 Journal of the Supreme Court 711–716 (June 30, 2022); see, e. g., id., at 
+685–689 (June 27, 2022) (granting, vacating, and remanding 28 cases). 
+
+Page Proof Pending Publication
+260 
+REED v. GOERTZ 
+Alito, J., dissenting 
+was denied. Instead, the Court merely proclaims that the 
+State, acting through Goertz, did not deny Reed due process 
+of law until “the state litigation ended.” Ante, at 236.4 
+I 
+certainly see the logic in this view: until the process afforded 
+by a State has been exhausted, it may be said that the State 
+has not defnitively denied the process that the Constitution 
+is alleged to demand. This logic leads to the conclusion that 
+a prisoner like Reed should exhaust state remedies—some­
+thing that would generally be required if the proper vehicle 
+for contesting the denial of a DNA testing claim were a peti­
+tion for a writ of habeas corpus. See 28 U. S. C. § 2254(b)(1). 
+But the Court rejected that proposition in District Attor­
+ney's Offce for Third Judicial Dist. v. Osborne, 557 U. S. 52 
+(2009), and it is well-established that a § 1983 plaintiff need 
+not exhaust state remedies. Patsy v. Board of Regents of 
+Fla., 457 U. S. 496, 500–501 (1982); Edwards v. Balisok, 520 
+U. S. 641, 649 (1997). Not only is this the general rule, but 
+the Osborne Court found that the rule applies in cases in­
+volving constitutional challenges to the denial of requested 
+DNA testing. 557 U. S., at 71. Thus, the Court's reasoning 
+collides with precedent. 
+On top of this, the Court's reasoning, if taken to its logi­
+cal conclusion, points to a result that neither Reed nor the 
+Court is willing to embrace: namely, that a due process chal­
+lenge to the denial of a request for DNA testing is not ripe 
+until state remedies have been exhausted. (Reed squarely 
+rejects that conclusion, Brief for Petitioner 48; Tr. of Oral 
+Arg. 12–13, and the Court reserves judgment. Ante, at 237, 
+n. 1.) But that is where the Court's reasoning is likely to 
+lead. 
+4 Even the CCA's denial of rehearing in a DNA testing case may not 
+mark the end of state court litigation on that issue, to the extent that the 
+issue may be taken up again in a state collateral review proceeding or 
+otherwise renewed. Cf. Darnell v. State, 2004 WL 1088755, *1 (Tex. App., 
+May 13, 2004) (discussing “reconsider[ation]” granted in DNA-testing ac­
+tion “after submission of additional information”). 
+
+Page Proof Pending Publication
+261 
+Cite as: 598 U. S. 230 (2023) 
+Alito, J., dissenting 
+Reed tries to circumvent this problem by distinguishing 
+between a claim that challenges the literal terms of a state 
+law and one that challenges the law as authoritatively inter­
+preted by the State's highest court. Brief for Petitioner 30, 
+48. On this view, only claims of the latter type would have 
+to proceed through the entire state court appellate process 
+before a § 1983 challenge could be brought. But this catego­
+rization of DNA-testing claims is problematic. When a 
+State's high court interprets a state law, it generally settles 
+what the law always meant, and therefore it is hard to see 
+the difference between a claim that the text of a state statute 
+is unconstitutional and a claim that the text is unconsti­
+tutional as interpreted by the State's highest court. In 
+the case of a state law like Article 64, which permits DNA 
+testing under limited circumstances, the court may interpret 
+the statute to impose requirements that are not expressly 
+spelled out in the statutory text. (That is what happened 
+here.) Or the state high court may interpret requirements 
+in the text more leniently than a literal reading of the text 
+would demand. In either event, the statute means what the 
+state high court says it means, and if accrual in the frst of 
+these situations does not take place until the end of appellate 
+review, it is hard to see why the same should not be true in 
+the second as well. 
+In light of these problems, it is not surprising that the 
+Court declines to say anything about whether prisoners who 
+wish to challenge a state DNA testing law may sue as soon 
+as their testing requests are denied. The Court says only 
+that it “need not address th[e] hypothetical scenario” of a 
+plaintiff who declines “full appellate review,” ante, at 237, 
+n. 1, but what does that mean? Does it mean that such a 
+plaintiff must exhaust state remedies at the trial level but 
+need not appeal? Does it mean that such a plaintiff must 
+pursue some (but not “full”) appellate review? Litigants 
+and the lower courts are left to guess. Instead of clarifying 
+the law, the Court's decision may sow confusion. 
+
+Page Proof Pending Publication
+262 
+REED v. GOERTZ 
+Alito, J., dissenting 
+C 
+Much of Reed's argumentation is not aimed at the argu­
+ment that his claim accrued when the CCA issued its con­
+tested interpretation of Article 64. Instead, Reed directs 
+his attack on the earlier possible accrual dates discussed in 
+Part I of this opinion and in particular the Fifth Circuit's 
+holding that a claim like Reed's accrues when testing is de­
+nied at the trial level. He says that this rule is unfair be­
+cause he “isn't Nostradamus,” lacks “supernatural fore­
+sight,” and therefore could not have predicted at the time of 
+the trial court decision whether the CCA would ultimately 
+agree. Brief for Petitioner 26, 32. He argues that his rule 
+promotes federalism (because it encourages resort to state 
+court litigation before turning to the federal courts), judicial 
+economy (because it tends to avoid contemporaneous litiga­
+tion in both state and federal court), comity (because it 
+allows state courts to adopt interpretations of their statutes 
+that avoid federal constitutional problems), and practical re­
+ality (because a prisoner bringing an authoritative-
+construction claim cannot know in advance how a State's 
+high court will interpret the relevant statute). Id., at 36– 
+39. The Court makes related arguments. Ante, at 236–237. 
+Whatever merit these arguments might have in relation 
+to the accrual date adopted by the Fifth Circuit, they ring 
+hollow as applied to the choice between the date when a state 
+high court issues a decision interpreting the state testing 
+statute and the date when that court refuses to rehear and 
+overturn that interpretation. One need not have “supernat­
+ural foresight” in order to predict that rehearing is unlikely 
+to be granted. And it is hard to see how requiring a § 1983 
+plaintiff to sue within two years after a state high court deci­
+sion is issued is unfair or does any damage to federalism, 
+comity, or judicial economy. 
+Reed has provided no explanation why he could not have 
+fled his § 1983 action within two years after the CCA's deci­
+sion. Instead, he waited until an execution date was set. 
+
+Page Proof Pending Publication
+263 
+Cite as: 598 U. S. 230 (2023) 
+Alito, J., dissenting 
+While that event may have “concentrate[d] his mind wonder­
+fully,” that is not an excuse for the basic mistake of missing 
+a statute of limitations.5 
+*
+*
+* 
+For these reasons, I would affrm the judgment below, and 
+I therefore respectfully dissent. 
+5 J. Boswell, Life of Samuel Johnson, LL.D., in 44 Great Books of the 
+Western World 351 (R. Hutchins & M. Adler eds. 1952) (internal quotation 
+marks omitted). 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 243, line 3, “serve” is changed to “serves”
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+A 
+Page Proof Pending Publication
+PRELIMINARY PRINT 
+Volume 607 U. S. Part 2 
+Pages 421–437 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+February 24, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2025 
+421 
+Syllabus 
+HAIN CELESTIAL GROUP, INC., et al. v. 
+PALMQUIST, individually and as next 
+friend of E. P., a minor, et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 24–724. Argued November 4, 2025—Decided February 24, 2026 
+Respondents Sarah and Grant Palmquist fed their child E. P. baby food 
+that was made by petitioner Hain Celestial Group, Inc., and that they 
+purchased from petitioner Whole Foods Market, Inc. When E. P. was 
+2½ years old, he began exhibiting serious developmental disorders and 
+was diagnosed with a range of physical and mental conditions that some 
+doctors attributed to heavy-metal poisoning. In 2021, a subcommittee 
+of the U. S. House of Representatives released a staff report fnding that 
+certain baby foods, including Hain's, contained elevated levels of toxic 
+heavy metals. Following the report's release, the Palmquists sued both 
+Hain and Whole Foods in Texas state court, alleging state-law product 
+liability and negligence claims against Hain, and state-law breach-of­
+warranty and negligence claims against Whole Foods. Hain, a Dela­
+ware corporation with a principal place of business in New York, re­
+moved the case to federal court based on diversity of citizenship, but 
+confronted a problem: Federal courts may exercise diversity jurisdiction 
+only when no adverse party is from the same State, but Whole Foods 
+and the Palmquists are all Texas citizens. As a result, the District 
+Court lacked jurisdiction as the case stood upon removal. Hain sought 
+to cure this problem by arguing in its notice of removal that Whole 
+Foods had been improperly joined in the lawsuit and should be dis­
+missed, which would have established complete diversity between Hain 
+and the Palmquists. The District Court agreed with Hain, dismissed 
+Whole Foods, and denied the Palmquists' motion to remand. The case 
+then went to trial against Hain alone in federal court. The District 
+Court granted Hain's motion for judgment as a matter of law on all 
+claims, explaining that the Palmquists had failed to present suffcient 
+evidence to prove causation. On appeal, the Fifth Circuit reversed the 
+District Court's improper-joinder decision and dismissal of Whole Foods. 
+Because Whole Foods had been improperly dismissed, the Fifth Circuit 
+concluded that the District Court lacked diversity jurisdiction, that the 
+District Court's judgment had to be vacated, and that the case had to 
+be remanded to state court. This Court granted certiorari to resolve a 
+
+Page Proof Pending Publication
+422 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Syllabus 
+divide among the Courts of Appeals on whether vacatur is required in 
+these circumstances. 
+Held: Because the District Court's erroneous dismissal of Whole Foods did 
+not cure the jurisdictional defect that existed when this case was re­
+moved to federal court, the Fifth Circuit correctly vacated the judgment 
+in Hain's favor. Pp. 427–434. 
+(a) Federal courts are courts of limited jurisdiction, and a federal 
+court of appeals must “satisfy itself not only of its own jurisdiction, but 
+also of that of the lower courts in a cause under review.” Mitchell v. 
+Maurer, 293 U. S. 237, 244. In most cases, federal appellate courts as­
+sess the district court's jurisdiction based on “the state of facts that 
+existed at the time of fling.” Grupo Datafux v. Atlas Global Group, 
+L. P., 541 U. S. 567, 571. If the court of appeals concludes that the 
+district court lacked jurisdiction over the case when it was fled in or 
+removed to federal court, then the court of appeals typically must vacate 
+any judgment on the merits. 
+One exception to this general rule is relevant here: If a district court 
+cures a jurisdictional defect before fnal judgment, then the court of 
+appeals is not required to vacate that judgment even if, at some earlier 
+point in the case, the district court lacked jurisdiction. The Court dis­
+cussed this exception in Caterpillar Inc. v. Lewis, 519 U. S. 61, in which 
+the nondiverse defendant was fully dismissed with all of the parties' 
+consent through a partial fnal judgment under Federal Rule of Civil 
+Procedure 54(b), leaving behind a completely diverse set of parties be­
+fore trial commenced. In those circumstances, the Court held that the 
+jurisdictional defect had been cured and the verdict could stand despite 
+the District Court's earlier “statutory misstep” in denying the motion to 
+remand. Id., at 73. On the other hand, the Court stated, had the juris­
+dictional defect not been cured and instead “lingered through judgment,” 
+then vacatur would have been required. Id., at 76–77. Pp. 428–430. 
+(b) The core dispute in this case is whether Whole Foods's erroneous 
+dismissal before fnal judgment cured the jurisdictional defect that ex­
+isted at the time of removal. It did not. The District Court's dismissal 
+of Whole Foods as improperly joined was both erroneous and “[i]nterloc­
+utory,” meaning it did “not dispose of the whole case” and “merge[d] 
+into the fnal judgment” for “revie[w] on appeal.” Dupree v. Younger, 
+598 U. S. 729, 734, 735. When the Fifth Circuit reversed the District 
+Court's error, it restored Whole Foods to the case and thus destroyed 
+complete diversity. As a result, the jurisdictional defect “lingered 
+through judgment” uncured and the judgment “must be vacated.” Cat­
+erpillar, 519 U. S., at 77. 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 421 (2026) 
+423 
+Syllabus 
+Hain argues that the correctness of the District Court's dismissal is 
+irrelevant because the parties were completely diverse by the time of 
+fnal judgment, but the Court has never held that a district court can 
+create jurisdiction through its own mistakes. A rule to the contrary 
+would permit courts to enlarge their jurisdiction beyond the limits Con­
+gress imposed. Hain also appeals to effciency, arguing that it would 
+be wasteful to send this case back to state court for a new trial. The 
+“considerations of fnality, effciency, and economy” recognized in Cater­
+pillar, 519 U. S., at 75, however, were relevant only to excusing noncom­
+pliance with the removal statute's requirement of complete diversity at 
+the time of removal after a jurisdictional defect has been properly and 
+fnally cured. As to the jurisdictional requirement itself, Caterpillar 
+held that an uncured jurisdictional defect means that “the judgment 
+must be vacated.” Id., at 76–77. Pp. 430–432. 
+(c) Finally, Hain argues that Whole Foods should now be dismissed 
+under Federal Rule of Civil Procedure 21, which permits a federal court 
+to “add or drop a party” “on just terms.” In Newman-Green, Inc. v. 
+Alfonzo-Larrain, 490 U. S. 826, 833, 837–838, the Court held that courts 
+may use Rule 21 “to dismiss a dispensable nondiverse party” in appro­
+priate circumstances, but must “carefully consider whether the dis­
+missal . . . will prejudice any of the parties in the litigation.” This case 
+is unlike Newman-Green, in which the plaintiff sought the dismissal, 
+because here a defendant is seeking dismissal of another, nondiverse 
+defendant. The identity of the party asking for the dismissal is impor­
+tant because “[t]he plaintiff is `the master of the complaint,' ” and gener­
+ally has the right to choose whether to proceed in federal or state court. 
+Royal Canin U. S. A., Inc. v. Wullschleger, 604 U. S. 22, 35. Hain's pro­
+posed use of Rule 21 would force the Palmquists to litigate this case in 
+federal court against their wishes and despite their right to control the 
+forum for this case. See Atlantic Marine Constr. Co. v. United States 
+Dist. Court for Western Dist. of Tex., 571 U. S. 49, 63. The Palmquists 
+exercised their right to choose a state forum by purposefully and prop­
+erly joining a nondiverse defendant against whom they could not pro­
+ceed in federal court, and diligently asserted that right by promptly 
+moving to remand the case to state court. Rule 21 does not permit a 
+court or a defendant to override their choice in these circumstances. 
+Pp. 432–433. 
+103 F. 4th 294, affrmed and remanded. 
+Sotomayor, J., delivered the opinion for a unanimous Court. Thomas, 
+J., fled a concurring opinion, post, p. 434. 
+
+424 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Opinion of the Court 
+Sarah E. Harrington argued the cause for petitioners. 
+With her on the briefs were Paul W. Schmidt, Michael X. 
+Imbroscio, Abby C. Wright, Nicole M. Antoine, Matthew C. 
+Quallen, Bradley E. Chambers, Kristine L. Roberts, Brian 
+M. Ballay, and Alexandra B. Rychlak. 
+Russell S. Post argued the cause for respondents. With 
+him on the brief were Owen J. McGovern and David C. 
+Frederick.* 
+Justice Sotomayor delivered the opinion of the Court. 
+Federal courts are courts of limited jurisdiction and gener­
+ally can resolve only the cases that Congress grants them 
+power to hear. One class of cases over which Congress has 
+given federal courts jurisdiction is “diversity” cases between 
+“citizens of different States.” 28 U. S. C. § 1332(a). 
+If a federal court of appeals fnds that a district court 
+lacked jurisdiction over a case (for example, because the par­
+ties turned out not to be from different States), then the 
+district court's judgment on the merits must be vacated. A 
+district court's judgment can stand, however, if the district 
+court “cured” the jurisdictional defect before entering fnal 
+judgment, such as by properly dismissing a nondiverse party 
+from the case. 
+This case asks whether a district court's erroneous dis­
+missal of a nondiverse party before fnal judgment can cure 
+a jurisdictional defect that existed when the case was re­
+moved to federal court. The Fifth Circuit held that it can­
+*Briefs of amici curiae urging reversal were fled for the National Asso­
+ciation of Manufacturers et al. by Jaime A. Santos, Rohiniyurie Tashima, 
+Jennifer B. Dickey, and Erica Klenicki; for the Product Liability Advi­
+sory Council, Inc., by Nicole Saharsky and Minh Nguyen-Dang; and for 
+the Washington Legal Foundation by Cory L. Andrews and Zac Morgan. 
+Lawrence S. Ebner fled a brief for the Atlantic Legal Foundation as ami­
+cus curiae urging vacatur and remand. 
+Briefs of amici curiae urging affrmance were fled for the American 
+Association for Justice by Deepak Gupta and Jonathan E. Taylor; and for 
+Civil Procedure Professors by David Freeman Engstrom, pro se. 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 421 (2026) 
+425 
+Opinion of the Court 
+not, and this Court agrees. In these circumstances, the dis­
+trict court's fnal judgment must be vacated for lack of 
+jurisdiction. 
+I 
+Respondents Sarah Palmquist and Grant Palmquist have 
+a young son, E. P., who was born in 2014. For the frst two 
+years of E. P.'s life, the Palmquists fed him baby food that 
+was made by petitioner Hain Celestial Group, Inc., and that 
+they purchased from petitioner Whole Foods Market, Inc. 
+At frst, E. P.'s development progressed ordinarily, and he 
+was a healthy child. Things changed when E. P. was 2½ 
+years old. He began exhibiting serious developmental dis­
+orders and was diagnosed with a range of physical and men­
+tal conditions. After identifying high levels of arsenic, lead, 
+and mercury in E. P.'s blood tests, some doctors attributed 
+these conditions to heavy-metal poisoning. In 2021, years 
+after E. P.'s diagnosis, a subcommittee of the U. S. House of 
+Representatives Committee on Oversight and Reform re­
+leased a staff report fnding that certain baby foods, includ­
+ing Hain's, contained elevated levels of toxic heavy metals. 
+See Staff Report, Subcommittee on Economic and Consumer 
+Policy, Baby Foods Are Tainted With Dangerous Levels of 
+Arsenic, Lead, Cadmium, and Mercury 2–4 (Feb. 4, 2021). 
+Following the report's release, the Palmquists sued both 
+Hain and Whole Foods in Texas state court. As to Hain, the 
+Palmquists alleged state-law product liability and negligence 
+claims. As to Whole Foods, the Palmquists alleged state-
+law breach of warranty and negligence claims based on 
+Whole Foods's alleged misrepresentation of Hain's products 
+as safe for consumption. 
+Hain removed the case to federal court based on the par­
+ties' diversity of citizenship. At the time of removal, how­
+ever, Hain confronted a problem. Generally, 28 U. S. C. 
+§ 1332(a) allows federal courts to exercise jurisdiction only 
+when the parties are completely diverse, which means that 
+no adverse party is from the same State, and the amount in 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+426 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Opinion of the Court 
+controversy exceeds $75,000. Lincoln Property Co. v. 
+Roche, 546 U. S. 81, 89 (2005). As the case stood upon re­
+moval, though, this requirement was not met. The Palm­
+quists were Texas citizens. Hain was a Delaware corpora­
+tion with a principal place of business in New York, and so 
+was both a Delaware and New York citizen. Whole Foods, 
+however, was headquartered in Texas and so was, like the 
+Palmquists, a Texas citizen. Because Whole Foods and the 
+Palmquists were all Texas citizens, the parties were not com­
+pletely diverse. 
+Hain nevertheless argued in its notice of removal that re­
+moval was proper because Whole Foods had been improperly 
+joined and should be dismissed, which would leave only par­
+ties who were completely diverse in federal court. The 
+Palmquists disagreed, argued that Whole Foods was prop­
+erly joined, and moved to remand the case to state court 
+given the lack of diversity jurisdiction.1 
+The District Court sided with Hain. Under Fifth Circuit 
+precedent, which was not disputed here, a defendant is im­
+properly joined if the plaintiff fails to “state a claim for relief 
+that is facially plausible” against the defendant. 103 F. 4th 
+294, 304 (2024); see Smallwood v. Illinois Central R. Co., 385 
+F. 3d 568, 573 (2004) (en banc). Applying that test, the Dis­
+trict Court concluded that the Palmquists had not alleged a 
+plausible claim against Whole Foods. It thus dismissed 
+Whole Foods and denied the Palmquists' motion to remand. 
+The Palmquists then went to trial against Hain in federal 
+court. After the Palmquists rested their case, Hain moved 
+for judgment as a matter of law on all claims. The District 
+Court granted that motion in full, explaining that the Palm­
+quists had failed to present suffcient evidence to the jury to 
+prove that “the ingestion of heavy metals can cause the 
+array of symptoms that [E. P.] suffers from, much less any 
+1 Improper joinder is also often referred to as “fraudulent joinder.” Be­
+cause there are no allegations of fraud by the Palmquists in this case, the 
+Court uses the term “improper joinder.” 
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 421 (2026) 
+427 
+Opinion of the Court 
+evidence of at what level those metals would have to be in­
+gested to bring about those symptoms.” 103 F. 4th, at 300. 
+The Palmquists appealed that judgment along with the Dis­
+trict Court's improper-joinder decision that had dismissed 
+Whole Foods. 
+The Fifth Circuit reversed the improper-joinder decision 
+and vacated the District Court's judgment. The Court of 
+Appeals held that Whole Foods was properly joined because 
+the Palmquists had plausibly alleged that Whole Foods had 
+violated state law by misrepresenting Hain's products as 
+safe. Given that Whole Foods had been erroneously dis­
+missed, the action was not diverse. The Court of Appeals 
+then concluded that the District Court lacked jurisdiction 
+and that the judgment in Hain's favor had to be vacated. 
+The Fifth Circuit denied en banc review. 
+Hain and Whole Foods fled a timely petition for certiorari 
+seeking review of the Fifth Circuit's holding that the District 
+Court's judgment must be vacated. One other Court of Ap­
+peals has held that vacatur is not required in these circum­
+stances, while another agrees with the Fifth Circuit and has 
+held that it is.2 
+The Court granted certiorari to resolve the 
+divide among the Courts of Appeals. See 604 U. S. 1267 
+(2025). 
+II 
+It is important to emphasize at the outset “two `givens' in 
+this case.” Caterpillar Inc. v. Lewis, 519 U. S. 61, 70 (1996). 
+First, no party asks this Court to revisit the Fifth Circuit's 
+holding that the District Court's improper-joinder decision 
+was incorrect and that Whole Foods should not have been 
+dismissed. See Brief for Petitioners 7, n. 1. Second, no 
+party disputes that, had the District Court performed the 
+joinder analysis correctly when the case was initially re­
+2 Compare Junk v. Terminix Int'l Co., 628 F. 3d 439, 447, 450–451 (CA8 
+2010), with Henderson v. Washington Nat. Ins. Co., 454 F. 3d 1278, 1284– 
+1285 (CA11 2006). 
+
+428 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Opinion of the Court 
+moved, it would have lacked jurisdiction and would have 
+been required to remand the case to state court. See 28 
+U. S. C. §§ 1332(a), 1447(c). What remains for this Court to 
+decide is whether the District Court, having erroneously dis­
+missed Whole Foods, had jurisdiction to enter a fnal judg­
+ment as to Hain. It did not. 
+A 
+Federal courts “are all of limited jurisdiction, and their 
+proceedings are erroneous, if the jurisdiction be not shown 
+upon them.” Kempe's Lessee v. Kennedy, 5 Cranch 173, 185 
+(1809) (Marshall, C. J.). Because of this limitation on federal 
+courts' authority, a federal court of appeals must “satisfy it­
+self not only of its own jurisdiction, but also of that of the 
+lower courts in a cause under review.” Mitchell v. Maurer, 
+293 U. S. 237, 244 (1934). In most cases, federal appellate 
+courts assess the district court's jurisdiction based on “the 
+state of facts that existed at the time of fling.” Grupo Da­
+tafux v. Atlas Global Group, L. P., 541 U. S. 567, 571 (2004). 
+If the court of appeals concludes that the district court 
+lacked jurisdiction over the case when it was fled in or re­
+moved to federal court, then the court of appeals typically 
+must vacate any judgment on the merits. See Williams v. 
+Zbaraz, 448 U. S. 358, 368 (1980); American Fire & Casualty 
+Co. v. Finn, 341 U. S. 6, 17–18 (1951). 
+There is, however, one exception to the general rule rele­
+vant to this case. If a district court “cures” a jurisdictional 
+defect prior to fnal judgment, then the court of appeals is 
+not required to vacate that judgment even if, at some earlier 
+point in the case, the district court lacked jurisdiction. 
+The Court discussed this exception in Caterpillar Inc. v. 
+Lewis, 519 U. S. 61. In Caterpillar, Lewis was a citizen of 
+Kentucky who brought a product-liability suit in state court 
+against Caterpillar, a Delaware- and Illinois-based equip­
+ment manufacturer, and Whayne Supply, a Kentucky com­
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 421 (2026) 
+429 
+Opinion of the Court 
+pany that serviced Caterpillar equipment. Id., at 64–65. 
+Lewis's insurer (a Massachusetts corporation) intervened as 
+a plaintiff and asserted claims against both Whayne and Cat­
+erpillar. Id., at 65. At that point, complete diversity was 
+lacking, as there was one plaintiff (Lewis) and one defendant 
+(Whayne) from Kentucky. 
+Lewis then settled his claims against Whayne. Ibid. 
+Caterpillar, thinking that the settlement would result in 
+Whayne's dismissal from the case, promptly removed the 
+case to federal court. Ibid. Lewis moved to remand, 
+pointing out that Whayne was still in the case because the 
+insurer had not settled its claim against Whayne. Id., at 
+65–66. Without addressing Lewis's argument, the District 
+Court erroneously denied the motion to remand, keeping the 
+case in federal court. Id., at 66. Whayne eventually set­
+tled with the insurer and was voluntarily dismissed from the 
+case via a partial fnal judgment under Federal Rule of Civil 
+Procedure 54(b). See App. A to Brief for Respondents. That 
+dismissal left three completely diverse parties in the case: 
+Lewis (from Kentucky), the insurer (from Massachusetts), 
+and Caterpillar (from Delaware and Illinois). 
+The case then went to trial, at which Caterpillar prevailed. 
+519 U. S., at 66–67. Lewis appealed, and the Sixth Circuit 
+vacated the verdict. It held that the District Court should 
+have remanded the case because, at the time of removal, 
+complete diversity did not exist. Id., at 67. 
+This Court reversed. It held that, because Whayne had 
+been fully dismissed, “the jurisdictional defect [had been] 
+cured, i. e., complete diversity [had been] established before 
+the trial commenced.” Id., at 73. Because “considerations 
+of fnality, effciency, and economy become overwhelming” 
+after “a diversity case has been tried in federal court,” the 
+Court held that the verdict could stand despite the District 
+Court's “statutory misstep” in denying the motion to re­
+mand. Id., at 73, 75, 77. On the other hand, the Court 
+Page Proof Pending Publication
+
+430 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Opinion of the Court 
+stated, had the jurisdictional defect not been cured and in­
+stead “lingered through judgment,” then vacatur would have 
+been required. Id., at 76–77. 
+B 
+The core dispute in this case is whether Whole Foods's 
+erroneous dismissal before fnal judgment cured the jurisdic­
+tional defect that existed at the time of removal. It did not. 
+Because the jurisdictional defect lingered through judgment, 
+the judgment “must be vacated.” Id., at 77. 
+When Hain removed this case to federal court, the District 
+Court was required to determine whether it had jurisdiction 
+by ensuring that none of the plaintiffs was from the same 
+State as any of the defendants. Because Whole Foods (a 
+defendant) and the Palmquists (the plaintiffs) were all Texas 
+citizens, the District Court lacked jurisdiction. It then tried 
+to cure that jurisdictional defect by dismissing Whole Foods 
+as improperly joined. 
+That dismissal, the Fifth Circuit held, was erroneous. It 
+was also “[i]nterlocutory,” meaning that it did “not dispose 
+of the whole case.” Dupree v. Younger, 598 U. S. 729, 734 
+(2023). The “ `general rule' ” is that parties cannot immedi­
+ately appeal interlocutory orders and must instead wait until 
+the end of the case, when those orders “merge into the fnal 
+judgment” and are “reviewable on appeal” from that judg­
+ment. Id., at 735 (quoting Quackenbush v. Allstate Ins. Co., 
+517 U. S. 706, 712 (1996)). 
+Under that general rule, once 
+the District Court entered fnal judgment in Hain's favor, 
+the court's earlier jurisdictional holding merged into the 
+judgment and was reviewable by the Court of Appeals as 
+part of the Palmquists' post-trial appeal. 
+On appeal, the question before the Court of Appeals was 
+whether the District Court had correctly dismissed Whole 
+Foods at the outset. If it had, then this case would be more 
+like Caterpillar, where the District Court correctly and f­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 607 U. S. 421 (2026) 
+431 
+Opinion of the Court 
+nally dismissed Whayne with the parties' consent and left 
+behind a completely diverse set of parties. 
+Whole Foods, however, was not dismissed correctly, and 
+the interlocutory nature of that dismissal meant that it was 
+reversible on appeal from the fnal judgment in Hain's favor. 
+Whole Foods thus was only temporarily and erroneously re­
+moved from the case; it was not “gone for good.” Royal 
+Canin U. S. A., Inc. v. Wullschleger, 604 U. S. 22, 33 (2025). 
+When the Fifth Circuit reversed the District Court's error, 
+it restored Whole Foods to the case and correctly held that 
+the jurisdictional defect had not been cured. That meant 
+that the defect “lingered through judgment” and that the 
+District Court's judgment therefore “must be vacated.” 
+Caterpillar, 519 U. S., at 77. 
+In Hain's view, the correctness of the District Court's dis­
+missal is irrelevant because, like in Caterpillar, the parties 
+were completely diverse by the time of fnal judgment. 
+Hain is mistaken. This Court has never held that a district 
+court can create jurisdiction through its own mistakes. A 
+rule to the contrary would permit courts to enlarge their 
+jurisdiction beyond the limits Congress imposed. Cf. Kok­
+konen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 
+377 (1994) (“Federal courts . . . possess only that power au­
+thorized by Constitution and statute, which is not to be ex­
+panded by judicial decree” (citations omitted)). 
+Hain also appeals to effciency, arguing that it would be 
+wasteful to send this case back to state court for a new trial. 
+This argument also fails. To be sure, Caterpillar recog­
+nized that “considerations of fnality, effciency, and economy 
+become overwhelming” after “a diversity case has been tried 
+in federal court.” 519 U. S., at 75. Those considerations, 
+however, were relevant only to excusing noncompliance with 
+the removal statute's requirement “that there be complete 
+diversity at the time of removal” after a jurisdictional defect 
+had been properly and fnally cured. Grupo Datafux, 541 
+
+432 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Opinion of the Court 
+U. S., at 574. As to the jurisdictional requirement itself, 
+Caterpillar held that an uncured jurisdictional defect means 
+that “the judgment must be vacated,” 519 U. S., at 76–77, 
+regardless of how effcient it might be to leave the judgment 
+in place. That the parties may need to litigate a new trial 
+in state court does not change the jurisdictional analysis or 
+make the District Court's error an effective cure.3 
+III 
+As a fallback, Hain argues that, even if the jurisdictional 
+defect was not cured, Whole Foods should now be dismissed 
+under Federal Rule of Civil Procedure 21. That Rule per­
+mits a federal court “on its own” to “add or drop a party” 
+“on just terms.” This argument is unavailing.4 
+In Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 
+(1989), this Court held that, in appropriate circumstances, 
+courts may use Rule 21 “to dismiss a dispensable nondiverse 
+party.” Id., at 833, 837. To do so, courts must “carefully 
+consider whether the dismissal of a nondiverse party will 
+prejudice any of the parties in the litigation,” as “[i]t may be 
+that the presence of the nondiverse party produced a tactical 
+advantage for one party or another.” Id., at 838. 
+3 Other procedural mechanisms may be available to reduce wasteful liti­
+gation. For instance, both partial fnal judgment under Federal Rule of 
+Civil Procedure 54(b) and certifcation under 28 U. S. C. § 1292(b) allow 
+district courts to certify matters for early appeal. Those procedures 
+could help resolve any uncertainty over whether a nondiverse party 
+should remain in the case at the time of removal and avoid the need to 
+wait until a post-trial appeal. See Tr. of Oral Arg. 20–23, 34–36. 
+4 The Palmquists contend the Rule 21 argument was forfeited, but it is 
+fairly included within the question presented, was raised in the petition for 
+certiorari, and was pressed before the Fifth Circuit. See Pet. for Cert. i, 
+22–24 (arguing that “appellate courts . . . ha[ve] dismissed dispensable 
+nondiverse parties in order to preserve jurisdiction as to diverse parties” 
+and citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 834–836 
+(1989)); Brief for Whole Foods in No. 23–40197 (CA5), p. 16; see also this 
+Court's Rule 14.1(a). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 421 (2026) 
+433 
+Opinion of the Court 
+This case is very different from Newman-Green. Here, 
+the defendants are seeking dismissal of a nondiverse defend­
+ant, whereas in Newman-Green, the plaintiff sought the dis­
+missal. Id., at 829. The identity of the party asking for the 
+dismissal is important because “[t]he plaintiff is `the master 
+of the complaint,' ” and generally has the right to choose 
+whether to proceed in federal or state court. Royal Canin, 
+604 U. S., at 35. Dismissing a nondiverse party with the 
+plaintiff 's consent is consistent with that right, as is a plain­
+tiff 's ability to amend the complaint to “bring the suit either 
+newly within or newly outside a federal court's jurisdiction.” 
+Id., at 35–36. 
+Hain's proposed use of Rule 21, however, would force the 
+Palmquists to litigate this case in federal court against their 
+wishes and despite their right to control the forum for this 
+case. Hain cites no cases in which a court used Rule 21, 
+over the plaintiff 's consistent objections, to dismiss a prop­
+erly joined defendant to preserve jurisdiction over an incor­
+rectly removed case that never should have been in federal 
+court. That lack of authority is not surprising. The preju­
+dice to the plaintiff in such circumstances is clear, for “plain­
+tiffs are ordinarily allowed to select whatever forum they 
+consider most advantageous.” Atlantic Marine Constr. Co. 
+v. United States Dist. Court for Western Dist. of Tex., 571 
+U. S. 49, 63 (2013). The Palmquists exercised their right to 
+choose a state forum by purposefully and properly joining a 
+nondiverse defendant against whom they could not proceed 
+in federal court, and diligently asserted that right by 
+promptly moving to remand the case to state court. The 
+decision to structure their case in this way was the Palm­
+quists' to make; Rule 21 does not permit a court or a defend­
+ant to override their choice in these circumstances.5 
+5 Some courts have used Rule 21 to dismiss nondiverse parties joined 
+after the case was properly removed to federal court. See, e. g., Gorfnkle 
+v. U. S. Airways, Inc., 431 F. 3d 19, 21–23 (CA1 2005). Because Whole 
+Foods was named in the original state-court complaint in this case, the 
+Page Proof Pending Publication
+
+434 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Thomas, J., concurring 
+IV 
+The District Court's erroneous dismissal of Whole Foods 
+did not cure the jurisdictional defect that existed when this 
+case was improperly removed to federal court. The Court 
+of Appeals therefore correctly vacated the judgment in 
+Hain's favor. The judgment of the Court of Appeals is af­
+frmed, and the case is remanded for further proceedings 
+consistent with this opinion. 
+It is so ordered. 
+Justice Thomas, concurring. 
+I join the Court's opinion in full. I write separately to 
+note my skepticism of the doctrine of “improper joinder,” 
+which the District Court invoked to dismiss Whole Foods in 
+this case. The doctrine appears to allow federal courts to 
+enlarge their jurisdiction by assessing the merits of claims 
+over which they lack jurisdiction. 
+“Federal courts are courts of limited jurisdiction.” Kok­
+konen v. Guardian Life Ins. Co. of America, 511 U. S. 375, 
+377 (1994). As “an essential ingredient of separation and 
+equilibration of powers,” the Constitution gives Congress 
+broad power over the scope of federal courts' jurisdiction. 
+Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 
+101 (1998). “When we assume jurisdiction too hastily, we risk 
+aggrandizing ourselves at the expense of the political 
+branches.” Monsalvo Velazquez v. Bondi, 604 U. S. 712, 737 
+(2025) (Thomas, J., dissenting). Accordingly, if a federal 
+court determines that it lacks jurisdiction in a case, “the only 
+function remaining to the court is that of announcing the fact 
+and dismissing the cause.” Ex parte McCardle, 7 Wall. 506, 
+514 (1869). 
+Court expresses no view on whether using Rule 21 to dismiss a nondiverse 
+party added after a proper removal is appropriate. The Court also ex­
+presses no view as to Rule 21's role in cases originally fled by plaintiffs 
+in federal court. See, e. g., Publicker Industries, Inc. v. Roman Ceramics 
+Corp., 603 F. 2d 1065, 1067, 1069 (CA3 1979). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 421 (2026) 
+435 
+Thomas, J., concurring 
+Federal courts therefore “must determine that they have 
+jurisdiction before proceeding to the merits.” Lance v. Cof­
+fman, 549 U. S. 437, 439 (2007) (per curiam). “The require­
+ment that jurisdiction be established as a threshold matter 
+spring[s] from the nature and limits of the judicial power of 
+the United States and is infexible and without exception.” 
+Steel Co., 523 U. S., at 94–95 (internal quotation marks omit­
+ted). “For a court to pronounce upon” the merits “when it 
+has no jurisdiction to do so is, by very defnition, for a court 
+to act ultra vires.” Id., at 101–102. 
+In this case, federal jurisdiction was based on diversity of 
+citizenship. The removing defendant, Hain Celestial Group, 
+invoked federal jurisdiction under 28 U. S. C. § 1332(a), which 
+gives district courts jurisdiction over “civil actions where 
+the matter in controversy exceeds the sum or value of 
+$75,000 . . . and is between . . . citizens of different States.” 
+This Court has always interpreted §1332(a)'s language “to 
+require `complete diversity,' ” meaning that a federal court 
+can exercise jurisdiction only if no plaintiff shares state citi­
+zenship with any defendant. Carden v. Arkoma Associates, 
+494 U. S. 185, 187 (1990) (citing Strawbridge v. Curtiss, 3 
+Cranch 267 (1806)). 
+Although the parties in this case were not completely di­
+verse, the District Court exercised jurisdiction based on the 
+doctrine of “improper joinder.” Under that doctrine, fed­
+eral courts exercise jurisdiction over cases that originally 
+involved nondiverse defendants by frst deeming the claims 
+against those nondiverse defendants suffciently weak on the 
+merits and then dismissing them. See, e. g., International 
+Energy Ventures Mgmt., L.L.C. v. United Energy Group, 
+Ltd., 818 F. 3d 193, 205–209 (CA5 2016). Here, the Palm­
+quists, Texas citizens, sued both an out-of-state defendant, 
+Hain Celestial Group, and a Texas defendant, Whole Foods. 
+The District Court therefore lacked jurisdiction over the 
+case when it was removed to federal court. The District 
+Court nonetheless proceeded to dismiss Whole Foods based 
+Page Proof Pending Publication
+
+436 
+HAIN CELESTIAL GROUP, INC. v. PALMQUIST 
+Thomas, J., concurring 
+on its merits assessment that there was not a “reasonable 
+basis to predict that [the Palmquists] could recover from 
+Whole Foods” under Texas products-liability law. App. to 
+Pet. for Cert. 25a–26a. After dismissing Whole Foods, it 
+adjudicated the claims against Hain Celestial on the merits. 
+The Fifth Circuit vacated that merits judgment for lack of 
+jurisdiction, but not because it thought that conducting an 
+improper-joinder inquiry was inappropriate. 103 F. 4th 294, 
+302–307 (2024). It simply thought that the Palmquists pos­
+sibly stated meritorious claims against Whole Foods under 
+Texas law. See id., at 305–307. It reaffrmed that the 
+improper-joinder doctrine allows federal courts to engage in 
+a “Rule 12(b)(6)-type analysis” of claims against nondiverse 
+defendants, albeit with legal ambiguities resolved in the 
+plaintiffs' favor. Id., at 306. Federal Rule of Civil Proce­
+dure 12(b)(6) dismissals, of course, are merits determina­
+tions. See Federated Department Stores, Inc. v. Moitie, 452 
+U. S. 394, 399, n. 3 (1981). 
+Other federal courts adopt a similar approach to dismiss 
+claims against nondiverse parties. See, e. g., Johnson v. 
+Midwest Div.-RBH, LLC, 88 F. 4th 731, 735–736 (CA8 2023); 
+Jerome-Duncan, Inc. v. Auto-By-Tel, L. L. C., 176 F. 3d 904, 
+907–909 (CA6 1999); Legg v. Wyeth, 428 F. 3d 1317, 1324, 
+1320–1325 (CA11 2005). Courts justify this approach based 
+on a group of this Court's early-20th-century precedents that 
+recognized a doctrine called fraudulent joinder. See, e. g., 
+Alabama Great Southern R. Co. v. Thompson, 200 U. S. 206, 
+217 (1906).* 
+*Many Circuits still use the “fraudulent joinder” term today, even when 
+they engage in the same merits analysis that the Fifth Circuit more accu­
+rately calls improper joinder. See, e. g., Johnson, 88 F. 4th, at 735–736 
+(holding that “joinder . . . was fraudulent” because state-law claim was 
+unlikely to succeed on the merits); Jerome-Duncan, Inc., 176 F. 3d, at 907– 
+909 (affrming “fraudulent joinder” dismissal because of weakness of claim 
+under state law); Cline v. Dart Transit Co., 804 Fed. Appx. 307, 312 (CA6 
+2020) (holding that “fraudulent joinder occurred” because plaintiff lacked 
+“a colorable cause of action”). 
+Page Proof Pending Publication
+
+Cite as: 607 U. S. 421 (2026) 
+437 
+Thomas, J., concurring 
+But this Court's precedents do not support the lower 
+courts' more recent approach. As I read them, this Court's 
+“fraudulent joinder” precedents concerned only whether the 
+plaintiff avoided federal diversity jurisdiction by bad faith or 
+actual fraud—such as lying about a party's conduct or citi­
+zenship. See Alabama Great Southern R. Co., 200 U. S., at 
+218 (asking whether the plaintiff “attempt[ed] to commit a 
+fraud upon the jurisdiction of the Federal courts”); Illinois 
+Central R. Co. v. Sheegog, 215 U. S. 308, 316 (1909) (asking 
+whether a claim was “fraudulent and false”); Mecom v. Fitz­
+simmons Drilling Co., 284 U. S. 183, 190 (1931) (asking 
+whether the plaintiff committed “actual fraud”). These 
+precedents were limited to cases of “extreme abuse.” Mur­
+riel-Don Coal Co. v. Aspen Ins. UK Ltd., 790 F. Supp. 2d 
+590, 596 (ED Ky. 2011) (Thapar, J.). Unlike the lower courts' 
+more recent decisions, they did not appear to turn on the 
+strength of the claims on the merits. 
+Federal courts sitting in diversity likely cannot dismiss 
+nondiverse parties based on their view of the merits of the 
+claims against those parties. Doing so appears unfaithful to 
+Congress's limits on our diversity jurisdiction and inconsist­
+ent with this Court's precedents. As Judge Thapar has put 
+it, the improper-joinder doctrine “requires federal courts to 
+exercise jurisdiction where none exists over questions of 
+state law that the state courts are better suited to address 
+themselves.” Id., at 597. In a future case where the issue 
+is briefed and squarely presented, this Court should consider 
+the propriety of the improper-joinder doctrine. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+PRELIMINARY PRINT 
+Volume 606 U. S. Part 2 
+Pages 748–830 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 27, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+748 
+OCTOBER TERM, 2024 
+Syllabus 
+KENNEDY, SECRETARY OF HEALTH AND HUMAN 
+SERVICES, et al. v. BRAIDWOOD MANAGEMENT, 
+INC., et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 24–316. Argued April 21, 2025—Decided June 27, 2025 
+In 1984, the Department of Health and Human Services (HHS) created 
+the U. S. Preventive Services Task Force, a body that formulates 
+evidence-based recommendations regarding preventive healthcare serv­
+ices. Congress codifed the Task Force's role in 1999, establishing it as 
+an entity within the Agency for Healthcare Research and Quality 
+(AHRQ) in HHS's Public Health Service. The Task Force currently 
+consists of 16 volunteer members appointed by the Secretary of HHS 
+to staggered 4-year terms. Before 2010, Task Force recommendations 
+were purely advisory. The Affordable Care Act of 2010 changed this 
+by requiring most health insurers and group health plans to cover with­
+out cost sharing those preventive services that receive “A” or “B” rat­
+ings from the Task Force. The Act also amended the governing statute 
+to describe the Task Force as “independent” and to provide that mem­
+bers and their recommendations “shall be independent and, to the ex­
+tent practicable, not subject to political pressure.” 42 U. S. C. §§ 299b– 
+4(a)(1), (6). 
+Plaintiffs, individuals and small businesses who object to the Afford­
+able Care Act's preventive-services coverage requirements, sued in fed­
+eral court. Lead plaintiff Braidwood Management runs a health and 
+wellness center offering insurance coverage to its approximately 70 em­
+ployees through a self-insured plan. Plaintiffs argued that Task Force 
+members are principal offcers under the Appointments Clause who 
+must be appointed by the President “with the Advice and Consent of 
+the Senate,” Art. II, § 2, cl. 2, not by the Secretary. The District Court 
+agreed, recognizing that Task Force members are removable at will by 
+the Secretary but concluding they are principal offcers because they 
+“have no superior” who supervises and directs them. 627 F. Supp. 3d 
+624, 646. While the Government's appeal was pending, the Secretary 
+in June 2023 ratifed existing appointments made by the AHRQ Director 
+and began personally appointing Task Force members. The Fifth Cir­
+cuit affrmed the District Court, holding that while Task Force members 
+are removable at will, they are not inferior offcers because they cannot 
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+749 
+Syllabus 
+be “ `independent' ” and “free from `political pressure' ” while simultane­
+ously being supervised by a political appointee. 104 F. 4th 930, 944. 
+Held: Task Force members are inferior offcers whose appointment by 
+the Secretary of HHS is consistent with the Appointments Clause. 
+Pp. 759–794. 
+(a) The Appointments Clause in Article II specifes how “Offcers of 
+the United States” must be appointed, dividing all offcers into two 
+classes. Principal offcers must be appointed by the President “with 
+the Advice and Consent of the Senate.” Inferior offcers likewise may 
+be appointed by Presidential nomination and Senate confrmation, but 
+Congress may also “by Law vest” their appointment “in the President 
+alone, in the Courts of Law, or in the Heads of Departments.” Art. II, 
+§ 2, cl. 2. Principal offcers encompass at least department heads who 
+report directly to the President. Inferior offcers are those “whose 
+work is directed and supervised at some level by others who were ap­
+pointed by Presidential nomination with the advice and consent of the 
+Senate.” Edmond v. United States, 520 U. S. 651, 663. Pp. 759–761. 
+(b) Task Force members are inferior offcers because their work is 
+“directed and supervised” by the Secretary of HHS, a principal offcer, 
+through two main sources of authority. Pp. 761–768. 
+(1) The Secretary's authority to remove Task Force members at 
+will provides a “powerful tool for control.” Edmond, 520 U. S., at 664. 
+An offcer's “ `presumed desire to avoid removal' ” generally creates 
+“ `here-and-now subservience.' ” Bowsher v. Synar, 478 U. S. 714, 727, 
+n. 5. Here, the Secretary has power to appoint Task Force members, 
+and no statute restricts their removal. Therefore, the Secretary may 
+remove Task Force members at will, enabling him to supervise and di­
+rect them. Pp. 762–765. 
+(2) Beyond at-will removal, the Secretary has statutory authority 
+to directly review and block Task Force recommendations before they 
+take effect. Several statutes give the Secretary general supervisory 
+authority over the Public Health Service, within which the Task Force 
+is housed, as well as rulemaking authority with respect to the Afford­
+able Care Act's coverage provisions. See 42 U. S. C. §§ 202, 300gg–92; 
+Reorganization Plan No. 3 of 1966; 98 Stat. 2705. During the minimum 
+1-year interval before recommendations become binding, the Secretary 
+can use his supervisory authority to direct that Task Force recommen­
+dations he disagrees with not be “in effect” and therefore not be binding, 
+or he can establish formal review processes through rulemaking. 
+§ 300gg–13(a)(1). Task Force members therefore “have no power to 
+render a fnal decision on behalf of the United States unless permitted 
+to do so by” the Secretary. Edmond, 520 U. S., at 665. Pp. 765–768. 
+
+Page Proof Pending Publication
+750 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Syllabus 
+(c) The conclusion that Task Force members are inferior offcers fol­
+lows a fortiori from this Court's precedents. In Edmond, Coast Guard 
+judges who were removable at will and whose decisions could be re­
+viewed and reversed were deemed inferior offcers, even though superi­
+ors could not infuence individual proceedings. Like those judges, Task 
+Force members are removable at will and their decisions can be re­
+viewed and overruled by the Secretary. In Free Enterprise Fund v. 
+Public Company Accounting Oversight Bd., 561 U. S. 477, PCAOB mem­
+bers removable at will by the Securities and Exchange Commission were 
+inferior offcers, even though they were “empowered to take signifcant 
+enforcement actions . . . largely independently of the Commission.” Id., 
+at 504. In United States v. Arthrex, 594 U. S. 1, Administrative Patent 
+Judges whose decisions were reviewable but who were removable only for 
+cause were inferior offcers. If patent judges subject only to review au­
+thority were inferior offcers, Task Force members subject to both at-will 
+removal and review authority are clearly inferior offcers. Pp. 768–770. 
+(d) Braidwood's arguments against inferior-officer status fail. 
+Pp. 770–779. 
+(1) The independence provision in § 299b–4(a)(6) stating that Task 
+Force members shall be “independent and, to the extent practicable, not 
+subject to political pressure” does not create for-cause removal protec­
+tion. To displace the default of at-will removal, Congress must use 
+“very clear and explicit language”—“mere inference or implication” does 
+not suffce. Shurtleff v. United States, 189 U. S. 311, 315. The term 
+“independent” alone does not make an offcer removable only for cause, 
+as this Court held in Collins v. Yellen, 594 U. S. 220. Pp. 770–772. 
+(2) Braidwood claims that 42 U. S. C. § 299b–4(a)(6)'s requirement 
+that Task Force members be “independent and, to the extent practica­
+ble, not subject to political pressure” must mean that the Task Force is 
+completely insulated from the Secretary. But “independent” is best 
+read to mean that Task Force members must not be unduly infuenced 
+by their outside professional affliations with universities, hospitals, and 
+professional associations. Even if the independence provision meant 
+some insulation from the Secretary when “practicable,” that would 
+affect only the formulation of recommendations, not the Secretary's 
+authority to review them before they take effect. This mirrors the 
+“almost-universal model of adjudication in the Executive Branch” where 
+inferior offcers make independent initial decisions subject to review by 
+politically accountable superiors. Arthrex, 594 U. S., at 25 (opinion of 
+Roberts, C. J.). Pp. 772–776. 
+(3) The Secretary's inability to compel the Task Force to issue par­
+ticular “A” or “B” recommendations does not undermine inferior-offcer 
+status. This Court has not suggested that a principal offcer must be 
+
+Cite as: 606 U. S. 748 (2025) 
+751 
+Syllabus 
+able to compel subordinates to take affrmative acts for them to qualify 
+as inferior offcers. In Free Enterprise Fund, the SEC lacked power 
+to require the PCAOB to “start” investigations, 561 U. S., at 504, yet 
+PCAOB members were inferior offcers. Similarly, in Edmond and 
+Arthrex, superiors could not compel initial decisions. Pp. 776–777. 
+(4) When Congress wants to create an independent agency, it gen­
+erally does so by explicitly conferring for-cause removal protection on 
+the agency's leadership and usually couples that protection with express 
+Presidential nomination and Senate confrmation requirements. The 
+statute establishing the Task Force contains none of this customary lan­
+guage. Pp. 778–779. 
+(e) Congress has by law vested appointment authority in the Secre­
+tary of HHS through two steps. First, the 1999 statute governing the 
+Task Force gives the AHRQ Director the authority to “convene” a Task 
+Force “to be composed of individuals with appropriate expertise.” 
+§ 299b–4(a)(1). Congress need not use magic words to confer appoint­
+ment authority, and around the time of the Founding, “ `appoint' ” was 
+synonymous with “ `allot, assign, or designate.' ” NLRB v. SW General, 
+Inc., 580 U. S. 288, 312–313 (Thomas, J., concurring). In the absence of 
+a statutory provision that more explicitly confers appointment authority, 
+the AHRQ Director's power to “convene” is naturally read to include 
+the power to appoint. § 299b–4(a)(1). Second, Reorganization Plan 
+No. 3 of 1966, ratifed by Congress in 1984, transfers to the Secretary 
+“all functions of the Public Health Service” and its “offcers,” “employ­
+ees,” and “agencies.” 80 Stat. 1610. The AHRQ Director is an “off­
+cer” of the Public Health Service, so Reorganization Plan No. 3 transfers 
+all of the AHRQ Director's functions to the Secretary. After statutory 
+codifcation of the Task Force in 1999, those powers of the Secretary 
+included the AHRQ Director's power to appoint the Task Force mem­
+bers. Therefore, by virtue of the 1984 Act ratifying Reorganization 
+Plan No. 3 and the 1999 Act conferring appointment authority, Congress 
+vested the power to appoint Task Force members in the Secretary of 
+HHS. Pp. 779–786. 
+(f) Braidwood's arguments that Congress has not properly vested ap­
+pointment authority in the Secretary fail. Braidwood frst claims that 
+the 1999 statute using “convene” does not confer appointment authority 
+and is instead “agnostic” about who should appoint Task Force mem­
+bers. Brief for Respondents 22. Braidwood's interpretation would 
+create a bizarre scheme where Congress was entirely indifferent about 
+who would appoint members making legally binding healthcare recom­
+mendations. Braidwood next argues that even if the Director has ap­
+pointment authority, Reorganization Plan No. 3 does not transfer that 
+power to the Secretary because it applies only to the Director's func­
+Page Proof Pending Publication
+
+752 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Syllabus 
+tions as of 1966. This frozen-in-time reading fnds no footing in statu­
+tory text or common sense. The Plan's language “all functions” most 
+naturally means an ongoing transfer of authority, including new powers 
+granted by Congress after 1966. 80 Stat. 1610. Pp. 786–793. 
+(g) The Secretary has properly exercised his appointment authority 
+since June 2023. P. 793. 
+104 F. 4th 930, reversed and remanded. 
+Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Sotomayor, Kagan, Barrett, and Jackson, JJ., joined. 
+Thomas, J., fled a dissenting opinion, in which Alito and Gorsuch, JJ., 
+joined, post, p. 794. 
+Principal Deputy Solicitor General Mooppan argued the 
+cause for petitioners. On the briefs were Solicitor General 
+Sauer, Acting Solicitor General Harris, Acting Assistant 
+Attorney General Shumate, Deputy Solicitors General 
+Kneedler and Gannon, Ephraim A. McDowell, Michael S. 
+Raab, Daniel Aguilar, Sean R. Keveney, and Janice L. 
+Hoffman. 
+Jonathan F. Mitchell argued the cause and fled briefs 
+for respondents.* 
+*Briefs of amici curiae urging reversal were fled for the State of Illi­
+nois et al. by Kwame Raoul, Attorney General of Illinois, Jane Elinor 
+Notz, Solicitor General, Alex Hemmer, Deputy Solicitor General, and Sa­
+mantha Sherman, Assistant Attorney General, and by the Attorneys Gen­
+eral for their respective jurisdictions as follows: Kris Mayes of Arizona, 
+Rob Bonta of California, Philip J. Weiser of Colorado, William Tong of 
+Connecticut, Kathleen Jennings of Delaware, Brian L. Schwalb of the 
+District of Columbia, Anne E. Lopez of Hawaii, Aaron M. Frey of Maine, 
+Anthony G. Brown of Maryland, Andrea Joy Campbell of Massachusetts, 
+Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of 
+Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez of New Mexico, 
+Letitia James of New York, Jeff Jackson of North Carolina, Dan Rayfeld 
+of Oregon, Peter F. Neronha of Rhode Island, Charity R. Clark of Ver­
+mont, Nicholas W. Brown of Washington, and Joshua L. Kaul of Wiscon­
+sin; for the American Hospital Association et al. by Chad Golder; for the 
+American Public Health Association et al. by Andrew J. Pincus; for the 
+Center for HIV Law and Policy et al. by David W. DeBruin; for the HIV 
+and Hepatitis Policy Institute et al. by Richard H. Hughes IV, Spreeha 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+753 
+Opinion of the Court 
+Justice Kavanaugh delivered the opinion of the Court. 
+This case concerns the Appointments Clause in Article II 
+of the Constitution. The U. S. Preventive Services Task 
+Force, an entity within the Department of Health and 
+Human Services, issues public recommendations about pre­
+ventive healthcare services—for example, cancer and diabe­
+tes screenings. Before 2010, the Task Force's recommenda-
+Choudhury, and Devon Minnick; for Members of the Chronic Illness and 
+Disability Partnership by Benjamin G. Shatz and Carmel Shachar; for the 
+National Alliance of State and Territorial AIDS Directors et al. by Jose I. 
+Abrigo, Jr., Omar Gonzalez-Pagan, Karen L. Loewy, Christopher R. 
+Riano, Bennett Klein, Chris Erchull, and Suman Chakraborty; for Pa­
+tient and Physician Professional Organizations by Beth Petronio, John 
+Longstreth, and Mary Rouvelas; for Public Citizen et al. by Nicolas A. 
+Sansone, Allison M. Zieve, and Scott L. Nelson; for the Susan G. Komen 
+Breast Cancer Foundation, Inc., by David C. Frederick; for United States 
+of Care et al. by Daniel G. Jarcho; and for 48 Bipartisan Economic and 
+Other Social Science Scholars by Matthew S. Hellman. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Texas et al. by Ken Paxton, Attorney General of Texas, Aaron L. Nielson, 
+Solicitor General, Brent Webster, First Assistant Attorney General, Wil­
+liam F. Cole, Principal Deputy Solicitor General, and Eric Abels, Assist­
+ant Attorney General, and by the Attorneys General for their respective 
+States as follows: James Uthmeier of Florida, Raúl Labrador of Idaho, 
+Theodore E. Rokita of Indiana, Brenna Bird of Iowa, Liz Murrill of Loui­
+siana, Lynn Fitch of Mississippi, Austin Knudsen of Montana, Michael T. 
+Hilgers of Nebraska, Dave Yost of Ohio, Gentner Drummond of Okla­
+homa, Alan Wilson of South Carolina, Marty Jackley of South Dakota, 
+Jonathan Skrmetti of Tennessee, Derek Brown of Utah, and John B. Mc-
+Cuskey of West Virginia; for the Association of American Physicians and 
+Surgeons by Andrew L. Schlafy; for the Buckeye Institute by Jay R. 
+Carson and David C. Tryon; for the Cato Institute by Thomas Berry; for 
+the Goldwater Institute by Timothy Sandefur; for the Manhattan Insti­
+tute by R. Trent McCotter and Ilya Shapiro; and for the Pacifc Legal 
+Foundation by Michael Poon. 
+Briefs of amici curiae were fled for the American College of Gastroen­
+terology by Andrew E. Tauber; for the Christian Employers Alliance by 
+Erin M. Hawley, John J. Bursch, Matthew S. Bowman, James A. Camp­
+bell, and Daniel J. Grabowski; and for Gilead Sciences, Inc., by Kwaku A. 
+Akowuah and Madeleine Joseph. 
+Page Proof Pending Publication
+
+754 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+tions were purely advisory. But the Affordable Care Act of 
+2010 now mandates that health insurers cover some of the 
+recommended services at no cost to the insured. 
+The Secretary of Health and Human Services appointed 
+the 16 current members of the Task Force. The question in 
+this case is whether appointment of Task Force members by 
+the Secretary is consistent with the Appointments Clause in 
+Article II. That question turns on whether the Task Force 
+members are principal offcers or inferior offcers. Principal 
+offcers must be nominated by the President and confrmed 
+by the Senate. That process can be lengthy and therefore 
+can hinder the Executive Branch's ability to promptly fll of­
+fces—and thus also impede the President's ability to execute 
+the laws through his subordinate executive offcers. By con­
+trast, inferior executive offcers may be directly appointed 
+by the President or by the head of a department, such as by the 
+Secretary of HHS—a more effcient and expeditious process. 
+The Executive Branch under both President Trump and 
+President Biden has argued that the Preventive Services 
+Task Force members are inferior offcers and therefore may 
+be appointed by the Secretary of HHS. We agree. The 
+Task Force members are removable at will by the Secretary 
+of HHS, and their recommendations are reviewable by the 
+Secretary before they take effect. So Task Force members 
+are supervised and directed by the Secretary, who in turn 
+answers to the President, preserving the chain of command 
+in Article II. See Edmond v. United States, 520 U. S. 651, 
+663 (1997). Therefore, under Article II and this Court's 
+precedents, the Task Force members are inferior offcers. 
+As a result, appointment of Task Force members by the Sec­
+retary of HHS is consistent with the Appointments Clause. 
+I 
+A 
+In 1984, the Department of Health and Human Services 
+created an advisory body known as the U. S. Preventive 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+755 
+Opinion of the Court 
+Services Task Force. The Task Force formulates and pub­
+lishes evidence-based recommendations regarding preven­
+tive healthcare services. 
+In 1999, Congress enacted legislation codifying the role of 
+the Task Force. See § 915, 113 Stat. 1659. That legislation 
+established the Task Force as an entity within the Agency 
+for Healthcare Research and Quality (AHRQ), which in turn 
+is an agency in the Public Health Service within HHS. 
+Under that 1999 statute, the Director of AHRQ “con­
+vene[s]” the Task Force, which is “to be composed of indi­
+viduals with appropriate expertise.” Ibid.; see 42 U. S. C. 
+§299b–4(a)(1). The Task Force reviews “the scientifc evi­
+dence related to the effectiveness, appropriateness, and cost-
+effectiveness of clinical preventive services for the purpose 
+of developing recommendations for the health care commu­
+nity.” § 299b–4(a)(1). 
+As presently constituted, the Task Force consists of 16 
+members who are now appointed by the Secretary of HHS 
+to staggered 4-year terms. Those members are “nationally 
+recognized experts in prevention, evidence-based medicine, 
+and primary care.” App. 39. They include researchers, 
+professors, and practicing physicians with experience and ex­
+pertise in public health and across a wide range of medical 
+specialties. They serve on a volunteer basis, so they are 
+not paid by the Federal Government for their service on the 
+Task Force. 
+Preventive services “can help people avoid acute illness, 
+identify and treat chronic conditions, prevent cancer or lead 
+to earlier detection, and improve health.” HHS, Issue 
+Brief—Access to Preventive Services Without Cost-Sharing: 
+Evidence From the Affordable Care Act 1 (Jan. 2022). A 
+wide range of individuals and organizations rely on the Task 
+Force's preventive-services recommendations. They include 
+“health care systems, professional societies, employers,” 
+“Congress and other policymakers, governmental pub­
+lic health agencies,” and those directly “delivering clinical 
+Page Proof Pending Publication
+
+756 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+services,” such as “primary care professionals.” § 299b– 
+4(a)(1). 
+The Task Force develops recommendations through a 
+standardized process. It selects a topic to study, reviews 
+the relevant scientifc evidence, formulates a draft recom­
+mendation statement, takes public comments, and then votes 
+on the fnal recommendation. 
+The Task Force uses a letter grading system for its recom­
+mendations. It assigns an “A” grade to services with a high 
+certainty of substantial net beneft and a “B” grade to serv­
+ices with at least a moderate certainty of a moderate net 
+beneft. It also issues “C” and “D” grades to services with 
+little to no net beneft, and an “I” grade to services for which 
+the current evidence is “insuffcient” to assess the balance of 
+benefts and harms. App. 46. The Task Force can vote to 
+change the grade that was assigned in a previous 
+recommendation. 
+The Task Force has given an “A” or “B” rating to more 
+than 40 preventive services. Those services include screen­
+ings to detect lung, breast, cervical, and colorectal cancer; 
+risk-reducing medications for women at high risk of breast 
+cancer; nicotine patches for adults trying to quit smoking; 
+statin medications to reduce the risk of heart disease and 
+stroke; physical therapy to help the elderly avoid falls; and 
+diabetes screenings. 
+For many years after its initial creation in 1984 and codif­
+cation in 1999, the Task Force's recommendations were 
+purely advisory. That changed in 2010 when Congress 
+passed and President Obama signed the Affordable Care Act. 
+124 Stat. 119. That Act requires most health insurers and 
+group health plans to cover certain preventive services with­
+out cost sharing—that is, without imposing copayments, de­
+ductibles, or other charges on patients. 
+Rather than set forth a fxed list, the Act tied coverage 
+for preventive services to the recommendations of several 
+entities within the Federal Government, including the Pre­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+757 
+Opinion of the Court 
+ventive Services Task Force. Specifcally, the Act mandates 
+no-cost coverage of “evidence-based items or services that 
+have in effect a rating of `A' or `B' in the current recommen­
+dations” of the Task Force. § 300gg–13(a)(1). 
+After the Task Force makes an “A” or “B” recommenda­
+tion, the insurance coverage requirements for that preven­
+tive service do not take effect immediately. Rather, the law 
+directs the Secretary of HHS to “establish a minimum inter­
+val,” not less than one year, between when an “A” or “B” 
+recommendation is issued by the Task Force and when insur­
+ers must cover the recommended service without cost shar­
+ing. § 300gg–13(b). During that interval, the Secretary 
+can review the Task Force's recommendation and block it 
+from going into effect. 
+The Affordable Care Act also amended the statute govern­
+ing the Task Force to describe the Task Force as “independ­
+ent” and to provide that the members of the Task Force and 
+their recommendations “shall be independent and, to the 
+extent practicable, not subject to political pressure.” 
+§§ 299b–4(a)(1), (6). 
+B 
+The question in this case is whether the Task Force mem­
+bers were appointed in a manner consistent with the Ap­
+pointments Clause in Article II of the Constitution. § 2, 
+cl. 2. 
+The plaintiffs are several individuals and small businesses 
+who object to the Affordable Care Act's preventive-services 
+coverage requirements. The lead plaintiff, Braidwood Man­
+agement, runs a health and wellness center. It offers 
+health-insurance coverage to its approximately 70 employees 
+through a self-insured plan. Braidwood wants to exclude 
+coverage for certain drugs and to impose copays or deduct­
+ibles for other covered services. 
+The plaintiffs—collectively, Braidwood—sued in the U. S. 
+District Court for the Northern District of Texas. Braid-
+wood argued that the structure of the Task Force violated 
+Page Proof Pending Publication
+
+758 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+the Appointments Clause. In Braidwood's view, Task Force 
+members are principal offcers who must be appointed by the 
+President “with the Advice and Consent of the Senate.” 
+Ibid. 
+The District Court agreed. It recognized that there are 
+no statutory removal restrictions on Task Force members, 
+meaning that the Secretary of HHS may remove them at 
+will. But the court nonetheless concluded that Task Force 
+members are unconstitutionally appointed principal offcers 
+because they “have no superior” who supervises and directs 
+them. Braidwood Mgmt. Inc. v. Becerra, 627 F. Supp. 3d 
+624, 646 (ND Tex. 2022). The court enjoined the Govern­
+ment from enforcing against Braidwood any insurance cover­
+age mandates based on Task Force recommendations issued 
+after the 2010 enactment of the Affordable Care Act.1 
+The Government appealed to the U. S. Court of Appeals 
+for the Fifth Circuit. Until that point, the Task Force mem­
+bers had been selected and appointed by the Director of 
+AHRQ, an agency within the Public Health Service of HHS. 
+But in June 2023, while the Government's appeal was pend­
+ing, the Secretary of HHS ratifed the appointments of the 
+existing Task Force members and re-appointed them on a 
+prospective basis. And from then on, the Secretary has con­
+tinued to appoint Task Force members. 
+The Fifth Circuit affrmed in relevant part. In a thorough 
+opinion, the court held that the Task Force members are 
+principal offcers who must be appointed by the President 
+with the advice and consent of the Senate. Like the District 
+Court, the Fifth Circuit understood the Task Force members 
+1 Braidwood also brought a claim under the Religious Freedom Restora­
+tion Act of 1993, 107 Stat. 1488, 42 U. S. C. § 2000bb et seq. It prevailed 
+on that claim and secured an injunction against enforcement of the specifc 
+requirement that it cover certain HIV-prevention medications without 
+cost sharing. The Government did not appeal that aspect of the District 
+Court's judgment, and this Court's decision will not affect the injunction 
+premised on Braidwood's RFRA claim. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+759 
+Opinion of the Court 
+to be removable at will by the Secretary of HHS. But the 
+Fifth Circuit concluded that the Secretary cannot block Task 
+Force recommendations before they take effect. The court 
+pointed to 42 U. S. C. § 299b–4(a)(6), which provides that 
+Task Force members “shall be independent and, to the ex­
+tent practicable, not subject to political pressure.” The 
+Task Force, according to the Fifth Circuit, “cannot be `inde­
+pendent' and free from `political pressure' on the one hand, 
+and at the same time be supervised by the HHS Secretary, 
+a political appointee, on the other.” Braidwood Mgmt., Inc. 
+v. Becerra, 104 F. 4th 930, 944 (2024). So the court con­
+cluded that the Task Force is not supervised and directed by 
+the Secretary—and that Task Force members are therefore 
+principal offcers and may not be appointed by the Secretary. 
+We granted certiorari to consider whether appointment of 
+Task Force members by the Secretary of HHS violates the 
+Appointments Clause. 604 U. S. 1073 (2025). 
+II 
+A 
+The Appointments Clause in Article II of the Constitution 
+specifes how “Offcers of the United States,” as distinct from 
+employees, must be appointed. § 2, cl. 2. An offcer exer­
+cises “ `signifcant authority pursuant to the laws of the 
+United States.' ” Lucia v. SEC, 585 U. S. 237, 245 (2018). 
+An employee, by contrast, does not exercise signifcant gov­
+ernmental authority. See ibid. 
+The text of the Appointments Clause “very clearly divides 
+all its offcers into two classes”: principal offcers and inferior 
+offcers. United States v. Germaine, 99 U. S. 508, 509 (1879). 
+Here, all agree that the Preventive Services Task Force 
+members are offcers. The question is whether they are 
+principal or inferior. 
+Principal offcers must be appointed by the President 
+“with the Advice and Consent of the Senate.” Art. II, § 2, 
+cl. 2. The constitutionally mandated joint participation of 
+Page Proof Pending Publication
+
+760 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+the President and Senate in the appointments process is de­
+signed to promote “a judicious choice” for “flling the offces 
+of the Union.” The Federalist No. 76, p. 455 (C. Rossiter 
+ed. 1961) (A. Hamilton). The President and the Senate are 
+accountable “for both the making of a bad appointment and 
+the rejection of a good one.” Edmond v. United States, 520 
+U. S. 651, 660 (1997). 
+Inferior offcers may also be appointed via Presidential 
+nomination and Senate confrmation. See Art. II, § 2, cl. 2. 
+The Framers, though, recognized that requiring all offcers 
+of the Federal Government to run the gauntlet of Presiden­
+tial nomination and Senate confrmation would prove admin­
+istratively unworkable as offces became “numerous” and 
+“sudden removals” and prompt replacements became “neces­
+sary.” Germaine, 99 U. S., at 510. So on one of the last 
+days of the Constitutional Convention—September 15, 
+1787—they authorized an additional and streamlined method 
+of appointment for inferior offcers. Specifcally, Congress 
+may “by Law vest” appointment of inferior offcers “in the 
+President alone, in the Courts of Law, or in the Heads of 
+Departments.” Art. II, § 2, cl. 2. Congress therefore may 
+provide that inferior executive offcers be unilaterally ap­
+pointed by the President or a Head of Department. 
+The Appointments Clause is “more than a matter of `eti­
+quette or protocol' ”—it is “among the signifcant structural 
+safeguards of the constitutional scheme.” Edmond, 520 
+U. S., at 659. The Appointments Clause ensures that the 
+President or his subordinate Heads of Departments play a 
+central role in selecting the offcers within the Executive 
+Branch who will assist in exercising the “executive Power.” 
+Art. II, § 1, cl. 1. The Clause thereby helps protect the inde­
+pendence of the Executive Branch and maintain the Consti­
+tution's separation of powers. 
+How does a court determine whether an executive offcer 
+is principal (and must be appointed by the President with 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+761 
+Opinion of the Court 
+the advice and consent of the Senate) or inferior (and may be 
+appointed by the President or Head of Department alone)? 
+Principal offcers in the Executive Branch encompass at 
+least the Heads of Departments, who report directly to the 
+President. Examples include the Secretary of State, Secre­
+tary of the Treasury, Secretary of Defense, and Attorney 
+General. 
+Inferior offcers are most readily defned by their relation­
+ship to principal offcers. “Generally speaking,” whether 
+“one is an `inferior' offcer depends on whether he has a supe­
+rior” other than the President, Edmond, 520 U. S., at 662, 
+and how much power the offcer “exercises free from control 
+by a superior,” United States v. Arthrex, Inc., 594 U. S. 1, 17 
+(2021). In Edmond v. United States, the Court summarized 
+the governing principle: Inferior offcers are those “whose 
+work is directed and supervised at some level by others who 
+were appointed by Presidential nomination with the advice 
+and consent of the Senate.” 520 U. S., at 663. 
+As the author of Edmond, Justice Scalia, once explained: 
+“It is perfectly obvious” that the language in Article II au­
+thorizing department heads to appoint inferior offcers “was 
+intended merely to make clear . . . that those offcers ap­
+pointed by the President with Senate approval could on their 
+own appoint their subordinates, who would, of course, by 
+chain of command still be under the direct control of the 
+President.” Morrison v. Olson, 487 U. S. 654, 720–721 
+(1988) (Scalia, J., dissenting). 
+B 
+Before 2010, members of the Preventive Services Task 
+Force were not offcers at all. The Task Force was an advi­
+sory body, and the Task Force members made only non-
+binding recommendations. As a result of the 2010 Afford­
+able Care Act, however, the Task Force's “A” and “B” recom­
+mended preventive services now must be covered by health 
+Page Proof Pending Publication
+
+762 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+insurers at no cost to the insured. For that reason, the par­
+ties here agree that the Task Force members exercise sig­
+nifcant governmental authority and qualify as “offcers” of 
+the United States. They disagree, however, over whether 
+Task Force members are principal or inferior offcers. 
+We conclude that Task Force members are inferior offcers 
+because their work is “directed and supervised” by the Sec­
+retary of HHS, a principal offcer. Edmond, 520 U. S., at 
+663. The Secretary's ability to direct and supervise the 
+Task Force derives from two main sources: the Secretary's 
+authority to remove Task Force members at will; and the 
+Secretary's authority to review and block the Task Force's 
+recommendations before they can take effect. 
+1 
+An offcer such as a Task Force member who is removable 
+at will by a principal offcer (here, by the Secretary of HHS) 
+typically qualifes as an inferior offcer. So it is here. 
+This Court has said that the authority to remove an offcer 
+at will is a “powerful tool for control.” Edmond, 520 U. S., 
+at 664; see Free Enterprise Fund v. Public Company Ac­
+counting Oversight Bd., 561 U. S. 477, 510 (2010). The rea­
+son is straightforward: “ `Once an offcer is appointed, it is 
+only the authority that can remove him, and not the author­
+ity that appointed him, that he must fear and, in the per­
+formance of his functions, obey.' ” Bowsher v. Synar, 478 
+U. S. 714, 726 (1986). An offcer's “ `presumed desire to 
+avoid removal' ” generally creates a “ `here-and-now subser­
+vience.' ” Id., at 727, n. 5. The prerogative of at-will re­
+moval of a subordinate, then, often carries with it the power 
+to supervise and direct that subordinate. See Intercolle­
+giate Broadcasting System, Inc. v. Copyright Royalty Bd., 
+684 F. 3d 1332, 1341 (CADC 2012) (Williams, J.). 
+Historical practice supports treating an offcer who is re­
+movable at will by a principal offcer as an inferior offcer. 
+Since the Founding, Congress has routinely tied inferior­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+763 
+Opinion of the Court 
+offcer status to at-will removability by Heads of Depart­
+ments. See Ex parte Hennen, 13 Pet. 230, 259–260 (1839). 
+For example, in designating the “chief Clerk in the Depart­
+ment of Foreign Affairs” as an “inferior offcer,” the First 
+Congress made clear that the Clerk was “to be employed” as 
+the Secretary of Foreign Affairs “shall deem proper.” Act 
+of July 27, 1789, ch. 4, 1 Stat. 29. The same was true of the 
+Chief Clerk of the Department of War. See Act of Aug. 7, 
+1789, ch. 7, 1 Stat. 49–50. In 1839 in Hennen, this Court 
+explained that the First Congress had bestowed upon the 
+Secretaries of various Departments the authority to “appoint 
+all necessary clerks”; that those clerks were subject to at-
+will removal by the Secretaries; and that they fell “under 
+that class of inferior offcers.” 13 Pet., at 259–260; see, e. g., 
+Act of Apr. 30, 1798, ch. 35, 1 Stat. 553–554 (clerks to the 
+Secretary of the Navy); see also, e. g., Act of Sept. 2, 1789, 
+ch. 12, 1 Stat. 65 (assistant to the Secretary of the Treasury); 
+Act of Feb. 20, 1792, ch. 7, 1 Stat. 234 (deputy postmasters). 
+On the other side of the ledger, Braidwood has not identi­
+fed any instance where an executive offcer was removable 
+at will by someone other than the President and nonetheless 
+deemed a principal offcer. 
+Here, because the Secretary of HHS appoints the Task 
+Force members, he also has the authority to remove the Task 
+Force members at will. See Braidwood Mgmt. Inc. v. Be­
+cerra, 627 F. Supp. 3d 624, 647 (ND Tex. 2022); Braidwood 
+Mgmt., Inc. v. Becerra, 104 F. 4th 930, 943 (CA5 2024). 
+When a statute empowers a department head to appoint an 
+offcer, the default presumption is that the offcer holds his 
+position “at the will and discretion of the head of the depart­
+ment,” even if “no power to remove is expressly given.” 
+Hennen, 13 Pet., at 259–260. That is because the “power of 
+removal of executive offcers” is “incident to the power of 
+appointment.” Myers v. United States, 272 U. S. 52, 119 
+(1926). As this Court recently summarized in Free Enter­
+prise Fund v. Public Company Accounting Oversight 
+
+Page Proof Pending Publication
+764 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+Board, when as here Congress vests appointment of inferior 
+offcers in “heads of departments,” “it is ordinarily the de­
+partment head . . . who enjoys the power of removal.” 561 
+U. S., at 493. 
+The Secretary of HHS has the power to appoint (and has 
+appointed) the Task Force members. See Part III, infra. 
+And no statute restricts removal of Task Force members. 
+Therefore, “there can be no doubt” that the Secretary may 
+remove Task Force members at will. Hennen, 13 Pet., at 
+259. 
+The Secretary's authority to remove Task Force members 
+at will in turn enables him to supervise and direct them. 
+When a Task Force member makes a decision that the Secre­
+tary disagrees with, the Secretary may remove that member. 
+In other words, the Secretary “may consider the decision 
+after its rendition as a reason for removing” the Task Force 
+member, “on the ground that the discretion regularly en­
+trusted to” that member “has not been on the whole intelli­
+gently or wisely exercised.” Myers, 272 U. S., at 135. 
+In addition, the Secretary can block a Task Force rec­
+ommendation from taking effect by combining his at-will 
+removal authority with his authority to determine when 
+Task Force recommendations become binding. 
+To explain: The Affordable Care Act expressly affords 
+the Secretary the power to “establish a minimum interval” 
+between when the Task Force issues an “A” or “B” recom­
+mendation and when insurers must cover the recommended 
+service without cost sharing. 42 U. S. C. § 300gg–13(b)(1). 
+Congress specifed that the minimum interval “shall not be 
+less than 1 year,” leaving the Secretary with discretion to 
+set a longer minimum interval. § 300gg–13(b)(2). 
+So during the minimum 1-year period after the Task Force 
+makes a recommendation before it becomes binding, the Sec­
+retary can request that the Task Force reconsider or with­
+draw a recommendation that he disfavors. He has plenty of 
+time to remove and replace Task Force members who refuse. 
+
+Cite as: 606 U. S. 748 (2025) 
+765 
+Opinion of the Court 
+And he can then request that the reconstituted Task Force 
+modify or rescind the recommendation. Therefore, in this 
+statutory scheme, the Secretary can use his at-will removal 
+power to stop any preventive-services recommendation con­
+trary to his judgment from taking effect. 
+In short, through the power to remove and replace Task 
+Force members at will, the Secretary can exert signifcant 
+control over the Task Force—including by blocking recom­
+mendations he does not agree with. The Secretary's power 
+to supervise and direct Task Force members in that way is 
+a strong indication that the Task Force members are infe­
+rior offcers. 
+2 
+Regardless of whether the Secretary's authority to remove 
+Task Force members at will suffces on its own to render 
+them inferior offcers, the Secretary also has statutory power 
+to directly review and block Task Force recommendations 
+before they take effect. That power confrms that the Task 
+Force members are inferior offcers. 
+At-will removal is one means of ensuring supervision and 
+direction. But in evaluating inferior-officer status, the 
+Court has also examined whether the relevant offcer has the 
+“power to render a fnal decision on behalf of the United 
+States” without review by a principal offcer. Edmond, 520 
+U. S., at 665. 
+That consideration has taken on particular importance in 
+assessing whether adjudicative offcers are principal or infe­
+rior. See id., at 664–665; Arthrex, 594 U. S., at 13–14. If 
+an adjudicative offcer's decisions are reviewable by a supe­
+rior, then the offcer may be considered inferior even if not 
+removable at will. See Arthrex, 594 U. S., at 16–17; id., at 
+25–26 (opinion of Roberts, C. J.).2 
+2 Review by an Article III court does not render the adjudicative offcer 
+inferior; it is review by a superior within the Executive Branch that does 
+so. See Arthrex, 594 U. S., at 17. 
+Page Proof Pending Publication
+
+766 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+Here, the Secretary's power to supervise and direct the 
+Task Force members derives from more than simply at-will 
+removal authority. As explained, at-will removal provides 
+the Secretary with a means of ensuring that no recommenda­
+tion that he disapproves will take effect. But the Secretary 
+also has the statutory authority to directly review—and, if 
+necessary, block—Task Force recommendations before they 
+take effect. So members of the Task Force cannot make any 
+legally binding, fnal decision on behalf of the United States 
+if the Secretary disagrees and wants to block it. As a result, 
+the Secretary retains ultimate responsibility over whether 
+Task Force recommendations become fnal decisions that 
+mandate no-cost coverage by health insurers. 
+To spell this out: A collection of statutes grants the Sec­
+retary general supervisory authority over the Task Force. 
+That supervisory authority in turn enables the Secretary to 
+review and, if he chooses, directly block a recommendation 
+he disagrees with. 
+First, 42 U. S. C. § 202 provides that the Public Health 
+Service, which houses the Task Force, “shall be administered 
+. . . under the supervision and direction of the Secretary.” 
+Second, Reorganization Plan No. 3 of 1966 grants the Sec­
+retary authority to perform “all functions of the Public 
+Health Service” and its “offcers,” “employees,” and “agen­
+cies.” 80 Stat. 1610.3 
+3 Braidwood contends that the Reorganization Plan does not apply to 
+the Task Force because the Plan contains an exception for “the functions 
+vested by law in any advisory council, board, or committee of or in the 
+Public Health Service.” 80 Stat. 1610. That is incorrect. As Braidwood 
+itself has explained, the Task Force “ceased to be an advisory committee” 
+in 2010 “when Congress enacted” the Affordable Care Act and “empow­
+ered” the Task Force to issue binding recommendations. App. 25. Task 
+Force members are offcers because, by operation of the ACA, their “A” 
+and “B” recommendations are not purely advisory. And Congress has 
+confrmed that the post-ACA Task Force is not an advisory entity by ex­
+pressly providing that “the Task Force is not subject to” the Federal Advi­
+sory Committee Act. 42 U. S. C. §299b–4(a)(5) (2018 ed., Supp. IV). 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+767 
+Opinion of the Court 
+Third, 42 U. S. C. § 300gg–92 states that the Secretary 
+“may promulgate such regulations as may be necessary or 
+appropriate to carry out the provisions of this subchapter”— 
+including the section of the Affordable Care Act that re­
+quires no-cost coverage of Task Force “A” and “B” 
+recommendations. 
+The Affordable Care Act mandates coverage without cost 
+sharing of “evidence-based items or services that have in 
+effect a rating of `A' or `B' ” from the Task Force. § 300gg– 
+13(a)(1) (emphasis added). During the minimum 1-year in­
+terval, the Secretary can use his general supervisory author­
+ity under § 202 and Reorganization Plan No. 3 to direct that 
+the Task Force's recommendation not be “in effect” and 
+therefore not be binding on health insurers. Moreover, 
+the Secretary can use his rulemaking authority under 
+§ 300gg–92 to establish a formal review process. For exam­
+ple, the Secretary can issue a regulation providing that 
+no Task Force recommendation shall be deemed “in effect” 
+until he or his designee has affrmatively reviewed and ap­
+proved it.4 
+Taken together, those complementary review authorities 
+ensure that the Task Force members “have no power to ren­
+der a fnal decision on behalf of the United States unless 
+permitted to do so by” the Secretary of HHS. Edmond, 520 
+U. S., at 665. To be clear, to supervise and direct for pur­
+poses of the Appointments Clause, the Secretary “need not 
+review every decision.” Arthrex, 594 U. S., at 27. Rather, 
+“[w]hat matters is that” the Secretary “have the discretion 
+to review decisions rendered by” the Task Force. Ibid. (em­
+4 The body within HHS assigned to recommend immunization coverage 
+requirements under the Affordable Care Act—the Advisory Committee on 
+Immunization Practices—already operates under such a regulation. The 
+regulation states that a recommendation of the Committee is not “consid­
+ered in effect” until “it has been adopted by” the Director of the Centers 
+for Disease Control and Prevention, who answers to the Secretary of 
+HHS. 45 CFR § 147.130(a)(1)(ii) (2024). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+768 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+phasis added). Under the statutory provisions described 
+above, the Secretary possesses that authority.5 
+C 
+Given the multiple and mutually reinforcing means by 
+which the Secretary of HHS can supervise and direct the 
+Task Force—namely, both the general authority to remove 
+Task Force members at will and the more specifc statutory 
+authority to review and block their recommendations before 
+they take effect—this Court's precedents preordain the con­
+clusion that the Task Force members are inferior offcers. 
+In Edmond v. United States, the Court ruled that judges 
+of the Coast Guard Court of Criminal Appeals were inferior 
+offcers. See 520 U. S., at 666. In reaching that conclusion, 
+the Court emphasized that (i) the Judge Advocate General, 
+who exercised administrative oversight over the judges, 
+could remove them at will and (ii) the Court of Appeals for 
+the Armed Forces could review and reverse their decisions. 
+See id., at 664–665. The Court reached that inferior-offcer 
+conclusion even though, pursuant to the Uniform Code of 
+Military Justice, no superior could “attempt to infuence (by 
+5 The dissent asserts that § 202 and the Reorganization Plan are inappli­
+cable because those statutes give the Secretary authority over the Public 
+Health Service, and the Task Force is not part of the Public Health Service 
+at all. Post, at 826–827 (opinion of Thomas, J.). At oral argument, the 
+Government succinctly summed up why the dissent's position is incorrect: 
+“[W]hen you have an entity that's convened by the Public Health Service, 
+selected by the Public Health Service, supervised by the Public Health 
+Service, and supported by the Public Health Service, it's part of the Public 
+Health Service.” Tr. of Oral Arg. 34; see also post, at 798 (The “AHRQ,” 
+which “is part of the Public Health Service,” is “responsib[le] for the Task 
+Force”). No doubt that is why the provisions governing the Task Force 
+are housed within the chapter of the U. S. Code entitled “Public Health 
+Service.” See 42 U. S. C. ch. 6A. Braidwood does not even try to claim 
+that the Task Force falls outside of the Public Health Service—on the 
+contrary, it concedes that, from the outset, the Task Force has been estab­
+lished as an entity “within the Public Health Service.” Supp. Brief for 
+Respondents 1; Brief for Respondents 34–35. 
+
+Cite as: 606 U. S. 748 (2025) 
+769 
+Opinion of the Court 
+threat of removal or otherwise) the outcome of individual 
+proceedings” conducted by the Coast Guard judges. Id., at 
+664 (citing 10 U. S. C. § 837). 
+Like the Coast Guard judges in Edmond, the Task Force 
+members here are removable at will and their decisions can 
+be reviewed and overruled by a superior—here, the Secre­
+tary of HHS. Therefore, the result in this case follows 
+a fortiori from Edmond. 
+In Free Enterprise Fund, the Court considered whether 
+members of the Public Company Accounting Oversight 
+Board were inferior offcers. See 561 U. S., at 510. After 
+fnding the members of the PCAOB removable at will by the 
+Securities and Exchange Commission, the Court concluded 
+that PCAOB members were inferior offcers. See id., at 
+508–510. The fact that the PCAOB was nonetheless “em­
+powered to take signifcant enforcement actions . . . largely 
+independently of the Commission” was no barrier to that 
+conclusion. Id., at 504. 
+In this case, the Task Force members are removable at 
+will, just as the PCAOB members were. And Task Force 
+members have no greater power than PCAOB members did 
+to independently make fnal, binding decisions. So the re­
+sult in this case also follows directly from Free Enterprise 
+Fund. 
+And in United States v. Arthrex, after ensuring that the 
+Director of the Patent and Trademark Offce had authority 
+to review fnal decisions issued by Administrative Patent 
+Judges, the Court deemed those judges to be inferior off­
+cers—even though they were removable only for cause and 
+thus insulated from at-will removal. See 594 U. S., at 16– 
+17; id., at 25–26 (opinion of Roberts, C. J.). 
+If the patent judges in Arthrex, whose decisions were re­
+viewable but who were not removable at will, were inferior 
+offcers, then there can be no doubt that the Task Force 
+members, who are subject to both forms of control, are infe­
+rior offcers. 
+Page Proof Pending Publication
+
+770 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+In sum, considering the Secretary's removal and review 
+authorities together, the inferior-officer issue is quite 
+straightforward under Edmond, Free Enterprise Fund, and 
+Arthrex. In light of those precedents, “we have no hesita­
+tion in concluding” that Task Force members are inferior 
+offcers whose appointment by the Secretary of HHS is per­
+missible under the Appointments Clause. Free Enterprise 
+Fund, 561 U. S., at 510. 
+D 
+On three separate grounds, Braidwood resists the conclu­
+sion that Task Force members are inferior offcers. First, 
+Braidwood claims that Task Force members cannot be 
+removed at will. Second, Braidwood contends that Task 
+Force members exercise unreviewable authority in making 
+preventive-services recommendations. Third, Braidwood 
+posits that Task Force members cannot be inferior offcers 
+because the Secretary lacks power to compel the Task Force 
+to issue a particular recommendation, as opposed to power 
+to block a recommendation. None of the three arguments 
+is persuasive. 
+1 
+Braidwood frst claims that the Secretary cannot remove 
+Task Force members at will. It rests that argument on 42 
+U. S. C. § 299b–4(a)(6). That provision states that Task 
+Force members and their recommendations shall be “inde­
+pendent and, to the extent practicable, not subject to political 
+pressure.” See also § 299b–4(a)(1) (“The Director shall con­
+vene an independent Preventive Services Task Force”). 
+According to Braidwood, it is impossible for Task Force 
+members to be “independent” if they are also removable at 
+will. So they must not be removable at will, Braidwood 
+reasons. 
+In essence, Braidwood invites the Court to read a for-
+cause removal restriction into a statute that does not explic­
+itly provide for one. We decline to do so. The Court has 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+771 
+Opinion of the Court 
+said that to “take away” the power of at-will removal from 
+an appointing offcer, Congress must use “very clear and ex­
+plicit language.” Shurtleff v. United States, 189 U. S. 311, 
+315 (1903); see Hennen, 13 Pet., at 259–260. “[M]ere infer­
+ence or implication” does not suffce. Shurtleff, 189 U. S., 
+at 315. 
+When Congress wants to depart from the default of at-
+will removability and instead furnish for-cause protection, it 
+knows how to do so. In many statutes, Congress has speci­
+fed that offcers shall be removed only for good cause, often 
+using a formulation like “ineffciency, neglect of duty, or mal­
+feasance in offce.” 15 U. S. C. § 41 (Federal Trade Commis­
+sioners); 42 U. S. C. § 7171(b)(1) (Federal Energy Regulatory 
+Commission members); 49 U. S. C. § 1301(b)(3) (Surface 
+Transportation Board members); see also Arthrex, 594 U. S., 
+at 17 (Patent judges may be removed only “ `for such cause 
+as will promote the effciency of the service' ” (quoting 5 
+U. S. C. § 7513(a))). 
+In fact, Congress has done so with respect to members of 
+other bodies that, like the Task Force, are within the Public 
+Health Service of HHS: Ethics board members who review 
+research involving human subjects may be removed only “for 
+neglect of duty or malfeasance or for other good cause 
+shown.” 42 U. S. C. § 289a–1(b)(5)(E). Notably, however, 
+Congress did not employ that kind of language in the statute 
+governing the Task Force. 
+Braidwood nonetheless suggests that the term “independ­
+ent” in this statute suffces to displace the default of at-will 
+removal. But this Court already rejected that move in Col­
+lins v. Yellen. There, the challengers argued that the Act­
+ing Director of the Federal Housing Finance Agency must 
+have been removable only for cause because Congress de­
+scribed the agency as “ `independent.' ” 594 U. S. 220, 248 
+(2021) (quoting 12 U. S. C. § 4511(a); emphasis deleted). The 
+Court disagreed, concluding that the challengers read “far 
+too much into the term `independent.' ” 594 U. S., at 248. 
+Page Proof Pending Publication
+
+772 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+The Court explained that “Congress has described many 
+agencies as `independent' without imposing any restriction 
+on the President's power to remove the agency's leadership.” 
+Id., at 249. 
+Given Collins, Braidwood's argument based on the term 
+“independent” falls short. The word “independent” alone in 
+a statute does not make an offcer removable only for cause. 
+Rather, Congress must speak clearly if it wishes to insulate 
+offcers from at-will removal. It has not done so here. 
+2 
+Next, Braidwood insists that the Task Force members can­
+not be inferior offcers because, in Braidwood's view, they 
+exercise unreviewable authority in making fnal recommen­
+dations that are binding on health insurers. In other words, 
+Braidwood contends that the Secretary cannot prevent the 
+Task Force's “A” and “B” recommendations from taking 
+effect, and that the Task Force members are therefore not 
+inferior offcers. 
+The premise is wrong. As we have explained, the Secre­
+tary in fact has authority to review the Task Force's recom­
+mendations and can block them from taking effect. 
+Braidwood's argument to the contrary is, essentially, just 
+another version of its frst argument. Braidwood again falls 
+back on the independence provision. Braidwood claims that 
+§ 299b–4(a)(6)'s requirement that Task Force members be 
+“independent and, to the extent practicable, not subject to 
+political pressure” must mean that the Task Force is com­
+pletely insulated from the Secretary. As Braidwood sees it, 
+the Task Force's recommendations cannot be “independent” 
+or free from “political pressure” if the Secretary can review 
+and block them. We disagree for two distinct reasons. 
+First, the requirement that Task Force members be “inde­
+pendent” is best read to mean that Task Force members 
+must not be unduly infuenced by their outside affliations. 
+Task Force members hail from universities, hospitals, and 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+773 
+Opinion of the Court 
+professional associations. The requirement that they be 
+“independent” instructs them not to act as mere agents or 
+representatives of those outside entities. See Brief for 
+United States 32 (members “must not regard themselves as 
+mere representatives of the organizations or professions in 
+which they serve”); Brief for State of Illinois et al. as Amici 
+Curiae 13 (the provision ensures that members are not “op­
+erating at the behest of external entities” given their “pro­
+fessional and organizational ties”). 
+To reinforce that critical aspect of independence, Task 
+Force members are subject to rigorous confict-of-interest 
+rules. See App. 42–44. The stated purpose of those rules 
+is to protect the public's “confdence in the integrity of the 
+process by which the Task Force makes its recommenda­
+tions.” Id., at 42. 
+Moreover, it would not make sense to read “independent” 
+in § 299b–4(a)(6) more broadly to also mean insulation from 
+politically accountable superiors. That is because the re­
+mainder of § 299b–4(a)(6) expressly provides that Task Force 
+members shall be, “to the extent practicable, not subject to 
+political pressure.” (Emphasis added.) Congress therefore 
+plainly contemplated that insulation from all political pres­
+sure would be impracticable. So to read the term “inde­
+pendent” to mean that Task Force members must be entirely 
+shielded from political pressure would nullify Congress's 
+purposeful choice of language—“to the extent practicable”— 
+in the remainder of the provision. § 299b–4(a)(6). Where 
+one reading of part of a statutory provision “deprives an­
+other” part “of all independent effect” and another reading 
+“leaves both . . . with some independent operation,” we gen­
+erally prefer the latter. A. Scalia & B. Garner, Reading 
+Law: The Interpretation of Legal Texts 176 (2012). 
+Second, even if we were to interpret “independent” to 
+apply to political pressure, the phrase “independent and, to 
+the extent practicable, not subject to political pressure” 
+would mean only that Task Force members are generally 
+Page Proof Pending Publication
+
+774 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+free from the Secretary's infuence in their formulation of 
+recommendations in the frst instance. The Secretary would 
+still retain power to review and block recommendations in 
+the minimum 1-year period before the recommendations 
+take effect. 
+Braidwood disagrees. It contends that the Secretary's 
+only power with respect to the Task Force's recommenda­
+tions is to determine when they take effect. It says that 
+§ 300gg–13 makes the Task Force's recommendations binding 
+after the minimum 1-year interval regardless of what the 
+Secretary does. But that understanding of the statute can­
+not be squared with the provisions discussed above that give 
+the Secretary general supervisory authority over the Task 
+Force. 
+So given the Secretary's review authority, Congress's in­
+struction that Task Force members and their recommenda­
+tions be “independent and, to the extent practicable, not sub­
+ject to political pressure” means at most that Task Force 
+members can exercise independent judgment in generating 
+recommendations on the front end—in the same way that 
+the Coast Guard judges in Edmond and the patent judges in 
+Arthrex made initial adjudicative decisions free from direc­
+tion by superiors. 
+In that way, the Task Force's operation vis-à-vis the Secre­
+tary is entirely consistent with Congress's longstanding prac­
+tice—refected in Edmond and Arthrex—of authorizing 
+inferior-offcer adjudicators in the Executive Branch to make 
+initial, independent decisions that are only then subject to 
+review by a superior offcer. The “modern federal hearing 
+examiner or administrative law judge” generally “exercises 
+his independent judgment on the evidence before him, free 
+from pressures by the parties or other offcials within the 
+agency.” Butz v. Economou, 438 U. S. 478, 513 (1978). But 
+“it certainly is the norm for principal offcers to have the 
+capacity to review decisions made by inferior adjudicative 
+offcers.” Arthrex, 594 U. S., at 20 (quotation marks omit­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+775 
+Opinion of the Court 
+ted). That is the “almost-universal model of adjudication in 
+the Executive Branch.” Id., at 25 (opinion of Roberts, 
+C. J.). Indeed, the Administrative Procedure Act expressly 
+provides for agency-head review of initial decisions made by 
+Executive Branch adjudicators in 5 U. S. C. § 557(b). And 
+“ `higher-level agency reconsideration' by the agency head is 
+the standard way to maintain political accountability and ef­
+fective oversight for adjudication that takes place outside the 
+confnes of § 557(b).” Arthrex, 594 U. S., at 20 (quoting C. 
+Walker & M. Wasserman, The New World of Agency Adjudi­
+cation, 107 Cal. L. Rev. 141, 157 (2019)); see also Arthrex, 
+594 U. S., at 20 (citing Freytag v. Commissioner, 501 U. S. 
+868 (1991)). 
+The fact that a wide range of administrative law judges 
+and other inferior-offcer adjudicators throughout the Execu­
+tive Branch make independent decisions in the frst instance 
+that are only later reviewable by politically accountable su­
+periors reinforces the conclusion that Task Force members, 
+whose function at the very least accords with that practice, 
+are inferior offcers. Under the Appointments Clause, Con­
+gress may permissibly provide for an initial “impartial deci­
+sion by a panel of experts” who are appointed by a depart­
+ment head, followed by a fnal “transparent decision for 
+which a politically accountable offcer must take responsibil­
+ity.” Arthrex, 594 U. S., at 16. The structure of the Task 
+Force preserves both expertise and accountability. 
+Finally, even if we perceived ambiguity in how § 299b– 
+4(a)(6)'s language regarding independence and freedom from 
+political pressure should be construed, constitutional avoid­
+ance would counsel against adopting Braidwood's expansive 
+interpretation. We should not read the statute in a way 
+that makes the current method of appointment—by the 
+Secretary—unconstitutional if we can reasonably read it oth­
+erwise. We have applied that constitutional-avoidance prin­
+ciple in similar Appointments Clause cases. See, e. g., 
+Edmond, 520 U. S., at 658. As this Court explained in Ed­
+
+776 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+mond, “we must of course avoid” reading the statute “in a 
+manner that would render it clearly unconstitutional” when 
+“there is another reasonable interpretation available.” 
+Ibid. 
+An interpretation of § 299b–4(a)(6) under which the Task 
+Force members exercise independent judgment in formulat­
+ing recommendations, but the Secretary maintains authority 
+to review and block them before they take effect is at the 
+very least a reasonable one. Under that interpretation, the 
+Task Force's operation is akin to the longstanding model of 
+agency adjudications. See id., at 664–665; Arthrex, 594 
+U. S., at 19–20. And that reading avoids making the stat­
+ute's method of appointment to the Task Force—that is, ap­
+pointment by the Secretary—unconstitutional. So to steer 
+clear of unconstitutionality, we would adopt that interpreta­
+tion even if the statute's references to “independent” and 
+“to the extent practicable, not subject to political pressure” 
+created ambiguity as to what powers the Secretary pos­
+sesses to review and block the Task Force's recommenda­
+tions. § 299b–4(a)(6). 
+3 
+Braidwood's third argument is that Task Force members 
+are not inferior offcers because, even assuming that the Sec­
+retary can review and block recommendations, the Secretary 
+cannot directly compel the Task Force to make an “A” or “B” 
+recommendation in the frst place. 
+To begin with, in light of the Secretary's at-will removal 
+power, he could in effect require the Task Force to make 
+certain recommendations—at least in some situations. See 
+§ 299b–4(a)(6) (Task Force “not subject to political pressure” 
+but only “to the extent practicable”). Specifcally, if the cir­
+cumstances so warranted, the Secretary could remove and 
+replace members of the Task Force who were unwilling to 
+assign an “A” or “B” recommendation to a particular service. 
+In any event, even assuming that Braidwood's argument 
+on this point is correct, that would not affect the Task Force 
+members' inferior-offcer status. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+777 
+Opinion of the Court 
+For one thing, when the Task Force declines to issue an 
+“A” or “B” recommendation, there is less cause for concern 
+about executive offcers exercising signifcant governmental 
+authority without adequate supervision and direction. That 
+is because when the Task Force decides not to issue an “A” 
+or “B” recommendation, the Government is not regulating 
+private parties: Health insurers are free to cover or not 
+cover the preventive service at issue as they wish. Con­
+gress made that freedom of choice explicit in the statute: 
+“Nothing in this subsection shall be construed to prohibit a 
+plan or issuer from providing coverage for services in addi­
+tion to those recommended by” the Task Force “or to deny 
+coverage for services that are not recommended by such 
+Task Force.” § 300gg–13(a). 
+More fundamentally, this Court has not suggested that a 
+principal offcer must be able to compel a subordinate to take 
+an affrmative act affecting private parties in order for the 
+subordinate to qualify as an inferior offcer. On the con­
+trary, the Court essentially held the opposite in Free Enter­
+prise Fund. There, the Court recognized that the Securi­
+ties and Exchange Commission lacked the power to require 
+the PCAOB to “start” individual investigations. 561 U. S., 
+at 504. That was no impediment to this Court's concluding 
+that the PCAOB members were inferior offcers. 
+Similarly, in Edmond, the Judge Advocate General and 
+Court of Appeals for the Armed Forces could not compel the 
+Coast Guard judges to make a particular decision in the frst 
+instance. See 520 U. S., at 664–665. Nor could the Director 
+of the Patent and Trademark Offce exercise that kind of 
+power over the patent judges in Arthrex. See 594 U. S., at 
+8–9; id., at 25–26 (opinion of Roberts, C. J.). The Coast 
+Guard and patent judges were nonetheless considered infe­
+rior offcers. 
+Here, even if the Secretary cannot directly order the Task 
+Force to formulate an “A” or “B” recommendation, that does 
+not undermine the inferior-offcer status of the Task Force 
+members. 
+Page Proof Pending Publication
+
+778 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+4 
+In essence, Braidwood urges this Court to read the rele­
+vant statutes as having created an independent agency—the 
+U. S. Preventive Services Task Force—whose members 
+wield unchecked power in making preventive-services rec­
+ommendations of great consequence for the healthcare and 
+health-insurance industries and the American people more 
+broadly. At oral argument, Braidwood went so far as to as­
+sert that, with respect to preventive-services recommenda­
+tions, the Task Force members are “more powerful than the 
+Secretary of HHS or the President.” Tr. of Oral Arg. 101. 
+It would be odd, however, for this Court to attribute to 
+Congress the intent to create such a powerful independent 
+agency—whose members would therefore require Presiden­
+tial nomination and Senate confrmation—when the text of 
+the statute says nothing of the sort. 
+When Congress wants to create an independent agency, it 
+generally does so by explicitly conferring for-cause removal 
+protection on the agency's leadership. See Part II–D–1, 
+supra. And Congress usually couples that express for-cause 
+protection from removal with an express statement that 
+those agency heads shall be nominated by the President and 
+confrmed by the Senate. See, e. g., 15 U. S. C. §41 (The 
+Federal Trade Commission “shall be composed of fve Com­
+missioners, who shall be appointed by the President, by and 
+with the advice and consent of the Senate”); 42 U. S. C. 
+§ 7171(b) (The Federal Energy Regulatory Commission 
+“shall be composed of fve members appointed by the Presi­
+dent, by and with the advice and consent of the Senate”); 
+49 U. S. C. § 1301(b)(1) (The Surface Transportation Board 
+“shall consist of 5 members, to be appointed by the Presi­
+dent, by and with the advice and consent of the Senate”). 
+The statute establishing the Task Force contains none of 
+that customary language—either with respect to for-cause 
+removal or appointment by the President with the advice 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+779 
+Opinion of the Court 
+and consent of the Senate. That silence speaks volumes. 
+Contrary to the argument advanced by Braidwood, we will 
+not judicially construct a powerful new independent agency 
+that Congress and the President did not themselves establish 
+by statute. 
+III 
+Braidwood contends that even if Task Force members are 
+inferior offcers, their appointments were nonetheless uncon­
+stitutional. Since June 2023, after questions arose about the 
+AHRQ Director's appointment of the Task Force members, 
+the Secretary of HHS has appointed all Task Force mem­
+bers, including by re-appointing those who were already 
+serving. But Braidwood says that the Secretary lacks stat­
+utory authority to make appointments to the Task Force, 
+which in turn would create a separate Appointments Clause 
+problem. 
+The dissent advances a version of the same 
+argument. 
+Under the Appointments Clause, “Congress may by Law 
+vest the Appointment of” inferior offcers “in the Heads of 
+Departments.” Art. II, § 2, cl. 2 (emphasis added). Accord­
+ing to Braidwood and the dissent, though, Congress has not 
+vested the authority to appoint Task Force members in the 
+Secretary of HHS, the relevant Head of Department. 
+Braidwood and the dissent maintain that, given the absence 
+of any statutory authorization for the Secretary to appoint, 
+Task Force members must be appointed by Presidential nom­
+ination and Senate confrmation. 
+We disagree. Congress has, in two steps, expressly 
+vested the Secretary of HHS with the authority to appoint 
+Task Force members. First, in 1999, when Congress codi­
+fed the Task Force, Congress authorized the Director of the 
+Agency for Healthcare Research and Quality (AHRQ) to ap­
+point members of the Task Force. Second, Reorganization 
+Plan No. 3 of 1966 transfers all of the AHRQ Director's func­
+tions to the Secretary. Congress ratifed that Reorganiza­
+Page Proof Pending Publication
+
+780 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+tion Plan in 1984. So in 1999, when Congress gave the 
+AHRQ Director the authority to appoint Task Force mem­
+bers, that authority vested in the Secretary. 
+Beginning in June 2023, the Secretary has exercised that 
+statutory authority to appoint the Task Force members. 
+Therefore, since June 2023, all Task Force members (includ­
+ing the ones who already held offce as of that date) have 
+been appointed by the Secretary of HHS pursuant to a law 
+enacted by Congress—and thus they have been appointed in 
+a manner consistent with the “Congress may by Law vest” 
+requirement of the Appointments Clause. Art. II, § 2, cl. 2. 
+A 
+1 
+The statute governing the Task Force, as originally 
+enacted in 1999 and amended in 2010, authorizes the AHRQ 
+Director to appoint the Task Force members. See § 915, 113 
+Stat. 1659; 124 Stat. 541–542. That statute provides that 
+the Director “shall convene” a Task Force “to be composed 
+of individuals with appropriate expertise.” 
+42 U. S. C. 
+§ 299b–4(a)(1). 
+To be sure, the statute does not use the term “appoint.” 
+But Congress need not use magic words to confer appoint­
+ment authority. Around the time of the Founding, “the verb 
+`appoint' ” was synonymous with “ `allot, assign, or desig­
+nate.' ” NLRB v. SW General, Inc., 580 U. S. 288, 312–313 
+(2017) (Thomas, J., concurring) (quoting 1 N. Webster, An 
+American Dictionary of the English Language 11–12 (1828)); 
+see Al Bahlul v. United States, 967 F. 3d 858, 863, 873–874 
+(CADC 2020) (holding that statute permitting the Secretary 
+of Defense to “designate” an offcer responsible for convening 
+military commissions vested the Secretary with authority to 
+“appoint” the convening offcer (quoting 10 U. S. C. § 948h)); 
+post, at 804 (opinion of Thomas, J.) (A “statute giving” a 
+department head “authority to assign a person” to an offce 
+satisfes the Appointments Clause (emphasis added)). 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+781 
+Opinion of the Court 
+Depending on context, other terms like “direct” that are 
+perhaps less obviously synonymous with “appoint” may also 
+suffce to confer appointment authority—and that may be so 
+even if the same statute uses the term “appoint” with re­
+spect to other offcers. See SW General, Inc., 580 U. S., at 
+312 (Thomas, J., concurring) (concluding that when the Presi­
+dent “ `direct[s]' ” someone to “ `perform the functions and du­
+ties' ” of an offce temporarily, “he is `appoint[ing]' that per­
+son as an `offcer of the United States' within the meaning of 
+the Appointments Clause” even though the statute refers to 
+“appointment[s]” to the same offces, 5 U. S. C. § 3345). 
+More to the point, the AHRQ Director's power to “con­
+vene” is naturally read to include the power to appoint in 
+this specifc context. Of course, “convene” in the abstract 
+could mean to merely “call together” or “assemble.” Supp. 
+Brief for Respondents 4 (quotation marks omitted). But 
+where as here there is no separate statutory provision speci­
+fying who is to appoint the individuals to be called together 
+or assembled, the obvious conclusion is that the person with 
+the power to convene is also the person with the power to 
+appoint. That is especially so when the person charged with 
+convening is required to ensure that members of the body to 
+be convened meet certain qualifcations, such as “appropriate 
+expertise.” § 299b–4(a)(1). 
+Congress has elsewhere used the term “convene” to au­
+thorize an offcial to both assemble a body and select its 
+members. For example, 10 U. S. C. § 948h states: “Military 
+commissions under this chapter may be convened by the Sec­
+retary of Defense or by any offcer or offcial of the United 
+States designated by the Secretary for that purpose.” That 
+statute contains no provision using the term “appoint.” 
+Therefore, § 948h—along with a neighboring provision that 
+also uses a term other than “appoint” (namely, “detail”)—has 
+been read to authorize the Secretary of Defense or his desig­
+nee to appoint commission members. See Al Bahlul, 967 
+F. 3d, at 863–864; see also § 948i(b) (“When convening a mili­
+Page Proof Pending Publication
+
+782 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+tary commission under this chapter, the convening authority 
+shall detail” eligible “members of the armed forces”); see 
+also, e. g., 10 U. S. C. § 14903(a) (“The Secretary of the mili­
+tary department concerned shall convene a board of inquiry” 
+to “be composed of not less than three offcers” with specifed 
+“qualifcations”); 14 U. S. C. § 3703(a) (“The Secretary shall 
+convene a Coast Guard Reserve Policy Board,” and at “least 
+one-half of the members of the Board shall be Reserve off­
+cers”); 33 U. S. C. § 3022(a) (The Secretary of Commerce 
+“shall convene a personnel board” which “shall consist of not 
+less than fve offcers” of a certain “grade”). 
+On the fip side, when Congress wants to decouple the 
+power to convene from the power to appoint, it has done so 
+explicitly. Consider 15 U. S. C. § 634c(b)(2)(A), which pro­
+vides that “the Chief Counsel for Advocacy” within the 
+Small Business Administration “shall convene an Inter-
+agency Working Group” but then states that the Working 
+Group shall be composed of representatives from particular 
+agencies “as selected by the head of the agency.” See also, 
+e. g., 20 U. S. C. §§ 107d–2(a), (b) (The Secretary of Education 
+“shall convene an ad hoc arbitration panel” with three mem­
+bers “appointed” by others); 50 U. S. C. §§ 3022(b), (d) (2018 
+ed., Supp. II) (“The Director of National Intelligence shall 
+convene meetings of the Joint Intelligence Community Coun­
+cil” with membership of the Council specifed in the law 
+itself). 
+The statute setting up the Task Force is more like the 
+former set of statutes than the latter. So in context, the 
+AHRQ Director's power to “convene” naturally encompasses 
+the power to appoint. 
+Not surprisingly, the Executive Branch's actions for the 
+last 26 years, since the 1999 codifcation of the Task Force, 
+have refected that straightforward interpretation of the 
+statute—without any apparent objection from Congress. 
+For those 26 years, the relevant government actors have al­
+ways read the authorization to “convene” the Task Force to 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+783 
+Opinion of the Court 
+include the power to appoint the Task Force members. 
+That considered and consistent Executive Branch practice— 
+which began contemporaneously with enactment of the stat­
+ute codifying the Task Force in 1999—buttresses the or­
+dinary meaning and natural interpretation of the term 
+“convene” in the statute. See Loper Bright Enterprises v. 
+Raimondo, 603 U. S. 369, 394 (2024); see also Bondi v. Van-
+DerStok, 604 U. S. 458, 480–481 (2025). 
+2 
+Of course, if the statute vested the power to appoint Task 
+Force members in the AHRQ Director alone, a constitutional 
+problem would exist. Not in 1999 when the “convene” pro­
+vision was enacted and the Task Force's recommendations 
+were still advisory—at that point, the Task Force members 
+were mere employees who could be appointed by the AHRQ 
+Director. But there would be a problem beginning in 2010 
+after the Affordable Care Act was enacted. Starting then, 
+the Task Force's “A” and “B” recommendations were no 
+longer merely advisory. Rather, health insurers had to 
+begin covering those recommended services at no cost to the 
+insured. So after the Affordable Care Act, the Task Force 
+members were offcers, not just employees. And as inferior 
+offcers, they could be appointed by the Secretary, who is a 
+Head of Department, but not by the AHRQ Director. In 
+short, since 2010, the Appointments Clause has required that 
+the Task Force members be appointed by the Secretary of 
+HHS. 
+As the Government explains, however, Congress itself 
+solved the potential constitutional issue that arose in 2010. 
+See Supp. Brief for United States 5. Specifcally, Reorgani­
+zation Plan No. 3 of 1966, which was ratifed by Congress in 
+1984, transfers all authority of the AHRQ Director to the 
+Secretary. So under Reorganization Plan No. 3, the AHRQ 
+Director's power to appoint the Task Force members was 
+transferred to the Secretary. That means the Secretary 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+784 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+possesses the authority to appoint the Task Force members. 
+And the Secretary has exercised that appointment authority. 
+To explain the background a bit more fully: The Reorgani­
+zation Act of 1949 charged the President with examining 
+“the organization of all agencies of the Government.” § 2(a), 
+63 Stat. 203. That Act authorized the President to prepare 
+reorganization plans when he determined that “the transfer 
+of the whole or any part of any agency” or its “functions” 
+“to the jurisdiction and control of any other agency” was 
+necessary. § 3, id., at 203; see id., at 204. 
+In 1966, acting pursuant to the 1949 Act, President Lyndon 
+Johnson issued Reorganization Plan No. 3. Before 1966, the 
+Public Health Service was separate from the Department of 
+Health and Human Services, then known as the Department 
+of Health, Education, and Welfare (HEW). See Public Pa­
+pers of the Presidents, Lyndon B. Johnson, Vol. I, Apr. 25, 
+1966, p. 455 (1967). But in 1966, Reorganization Plan No. 3 
+transferred to the Secretary of HHS (then HEW) “all func­
+tions of the Public Health Service” and its “offcers and em­
+ployees” as well as “all functions of all agencies of or in the 
+Public Health Service.” 80 Stat. 1610. 
+In 1984, Congress passed and President Reagan signed 
+legislation that ratifed and affrmed Reorganization Plan No. 
+3 “as law.” 98 Stat. 2705. 
+The AHRQ is an agency “of or in the Public Health Serv­
+ice,” and the AHRQ Director is an “offcer” of the Public 
+Health Service. 80 Stat. 1610; see 42 U. S. C. § 299(a). So 
+Reorganization Plan No. 3 “transfer[s]” all of the AHRQ Di­
+rector's functions to the Secretary of HHS. 80 Stat. 1610. 
+As the Government stated at oral argument here, under Re­
+organization Plan No. 3, “all of the Director's powers are the 
+Secretary's powers.” Tr. of Oral Arg. 110. 
+After statutory codifcation of the Task Force in 1999, 
+those powers of the Secretary included the AHRQ Director's 
+power to appoint the Task Force members. Therefore, by 
+virtue of the 1984 Act ratifying Reorganization Plan No. 3 
+
+Cite as: 606 U. S. 748 (2025) 
+785 
+Opinion of the Court 
+and the 1999 Act conferring appointment authority, Congress 
+vested the power to appoint Task Force members in the Sec­
+retary of HHS.6 
+To be sure, Congress could have vested the Secretary 
+with appointment authority in more direct ways. But given 
+that the Appointments Clause question arose only in 2010 
+when the Task Force recommendations became binding and 
+Task Force members became offcers under the Affordable 
+Care Act, it is no surprise that the 1999 statute did not ex­
+pressly name the Secretary. 
+Moreover, this Court has upheld as consistent with the 
+Appointments Clause statutory schemes that less directly 
+vest appointment authority in the Head of Department. For 
+example, in Free Enterprise Fund v. Public Company Ac­
+counting Oversight Board, the Court stated that it had “pre­
+viously found that the department head's approval” of an 
+inferior offcer's appointment of another inferior offcer “sat­
+isfes the Appointments Clause.” 561 U. S. 477, 512, n. 13 
+(2010). For that proposition, the Court cited with approval 
+United States v. Hartwell, 6 Wall. 385 (1868). In Hartwell, 
+the Court considered a statute that authorized “the assistant 
+treasurer, at Boston, with the approbation of the Secretary 
+of the Treasury, to appoint a specifed number of clerks.” 
+Id., at 393 (citing Act of July 23, 1866, 14 Stat. 202). The 
+Hartwell Court explicitly blessed that arrangement, holding 
+that the clerks were “appointed by the head of a department 
+within the meaning of the constitutional provision.” 6 Wall., 
+at 393–394. 
+6 That is not to say that the Secretary must personally perform every 
+function assigned by Congress to the Public Health Service and trans­
+ferred to the Secretary by operation of Reorganization Plan No. 3. With 
+respect to most functions, the Secretary may delegate responsibility to 
+carry out the function back to the Public Health Service. See § 2, 80 Stat. 
+1610. But where the Constitution requires that the Secretary personally 
+perform a particular function, like appointing the Task Force members, 
+delegation is not an option. 
+Page Proof Pending Publication
+
+786 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+The appointment scheme at issue in this case more clearly 
+vests appointment authority in the department head (the 
+Secretary of HHS) than did the statute in Hartwell, the va­
+lidity of which the Court affrmed in Free Enterprise Fund. 
+See 561 U. S., at 512, n. 13 (citing 6 Wall., at 393–394). In 
+Hartwell, the Secretary could only approve or disapprove 
+appointments proposed and carried out by the assistant 
+treasurer. So the assistant treasurer could frustrate the 
+Secretary's ability to appoint clerks of his choosing simply 
+by refusing to propose their appointment. Nonetheless, the 
+Court concluded that the statute vested authority to appoint 
+the clerks in the Secretary. Here, Reorganization Plan No. 
+3 grants the Secretary the power to stand in the shoes of the 
+AHRQ Director and himself appoint the Task Force mem­
+bers—far more direct appointment authority than existed 
+in Hartwell. 
+B 
+Braidwood and the dissent push back against the conclu­
+sion that Congress has by law vested the Secretary with 
+appointment authority. They argue that the statute gov­
+erning the Task Force actually does not grant appointment 
+authority to the AHRQ Director. And they contend that 
+even assuming that it does so, no statute “vests” such author­
+ity in the Secretary. 
+1 
+Braidwood frst asserts that the 1999 statute codifying the 
+Task Force simply says “convene” and is therefore actually 
+“agnostic” about who should appoint the Task Force mem­
+bers. Brief for Respondents 22; see Tr. of Oral Arg. 59–61. 
+In other words, Braidwood claims that “Congress has not 
+`vested' the appointment of the Task Force in anyone.” 
+Supp. Brief for Respondents 1 (emphasis added). As Braid-
+wood sees it, Congress did not care—either in 1999 when it 
+codifed the Task Force or in 2010 when it made the Task 
+Force's recommendations legally binding—whether the Task 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+787 
+Opinion of the Court 
+Force members are appointed by the AHRQ Director, the 
+Secretary of HHS, the President, the Secretary of Energy, a 
+private party, or anyone else. See Tr. of Oral Arg. 59. And 
+Braidwood detects no problem with a statute under which 
+multiple different offcials or entities could all purport to ap­
+point members of the Task Force. Braidwood suggests that 
+the AHRQ Director, the Secretary of HHS, or the President 
+could simply step in to announce which collection of individu­
+als is the “real” Task Force. See Supp. Brief for Respond­
+ents 5, n. 5. 
+We will not read the statute to usher in such a bizarre 
+and half-baked scheme. It is implausible to conclude that 
+Congress in 1999 established the Task Force and in 2010 
+charged its members with making legally binding healthcare 
+recommendations—but was entirely indifferent as to who 
+would appoint those members. Tellingly, Braidwood has 
+failed to identify any other statute that establishes a govern­
+ment entity but is entirely agnostic about who will select the 
+members of that government entity. The far more sensible 
+reading of the Task Force statute is the Government's: that 
+in 1999, in authorizing the AHRQ Director to “convene” a 
+Task Force composed of members with “appropriate exper­
+tise,” Congress also charged the Director with selecting 
+those members. Supp. Brief for United States 2–3 (quoting 
+§ 299b–4(a)(1)). 
+The dissent, for its part, cannot bring itself to endorse 
+Braidwood's farfetched theory. But it nonetheless asserts 
+that we should not read “convene” to mean “appoint” because 
+the Appointments Clause supplies a default rule for how 
+inferior offcers should be appointed: by the President with 
+Senate confirmation. But § 299b–4(a)(1), together with 
+Reorganization Plan No. 3 of 1966 as ratifed by Congress in 
+1984, expressly vests appointment authority in the Secretary 
+and therefore displaces any such default rule. 
+The dissent all but concedes that between 1999 and 2010— 
+before the Task Force members were offcers and therefore 
+
+788 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+before the Appointments Clause was relevant—the statutory 
+authorization to “convene” was best read to confer appoint­
+ment authority. See post, at 816; see also post, at 815 (When 
+“no other provision addresses how the group's members are 
+named because the Appointments Clause does not apply,” 
+the “authority to `convene' ” confers appointment authority). 
+But according to the dissent, the meaning of the statute sud­
+denly changed in 2010 after the enactment of the Affordable 
+Care Act. The problem with that theory is that the relevant 
+statutory text did not change in 2010. Both before and 
+after the enactment of the Affordable Care Act, the statute 
+has granted authority to “convene” a Task Force “composed 
+of individuals with appropriate expertise.” § 299b–4(a)(1); 
+§ 299b–4(a)(1) (2006 ed.). So in effect, the dissent reads the 
+same words to mean different things before and after 2010. 
+2 
+Braidwood and the dissent next argue that, even if the 
+AHRQ Director's statutory authority to “convene” carries 
+with it the power to appoint, Reorganization Plan No. 3 does 
+not actually transfer the Director's appointment authority to 
+the Secretary and thus does not vest appointment authority 
+in the Secretary. 
+First, Braidwood and the dissent emphasize that Reorga­
+nization Plan No. 3 is not a “law” at all. They note that 
+the Plan was originally submitted to Congress in 1966 by 
+President Johnson and took effect only because neither 
+House of Congress passed a disapproval resolution within 
+60 days. 
+True but irrelevant. In a 1984 Act passed by Congress 
+and signed by President Reagan—an Act that therefore in­
+disputably qualifes as a “law”—Congress stated that it 
+“hereby ratifes and affrms as law each reorganization plan” 
+previously enacted, including Reorganization Plan No. 3 of 
+1966. 98 Stat. 2705. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+789 
+Opinion of the Court 
+Second, Braidwood and the dissent point out that Con­
+gress did not codify the Task Force or the authority to ap­
+point Task Force members until 1999. And they claim that 
+Reorganization Plan No. 3 transferred to the Secretary only 
+those functions that existed as of 1966. But that frozen-in­
+time reading of Reorganization Plan No. 3 fnds no footing in 
+either the statutory text or common sense. 
+Starting with the text, Reorganization Plan No. 3 transfers 
+to the Secretary “all functions” of the Public Health Service 
+and its offcers. 80 Stat. 1610 (emphasis added). That most 
+naturally means an ongoing transfer of authority—that is, 
+any new powers granted to the Public Health Service and its 
+offcers by Congress after 1966 would be transferred to the 
+Secretary, in addition to those powers existing as of 1966. 
+Moreover, the Dictionary Act provides that, “unless the con­
+text indicates otherwise,” “words used in the present tense 
+include the future as well as the present.” 1 U. S. C. § 1. 
+Reorganization Plan No. 3 speaks in the present tense, pro­
+viding that “all functions” “are hereby transferred.” 80 
+Stat. 1610 (emphasis added). The use of the present tense 
+combined with the expansive phrase “all functions” shows 
+that Congress intended that Reorganization Plan No. 3 effect 
+a continuing transfer of functions from the Public Health 
+Service to the Secretary. 
+Braidwood and the dissent both lean on a provision of the 
+Reorganization Act of 1949 stating that no “reorganization 
+plan shall provide for, and no reorganization under this Act 
+shall have the effect of . . . authorizing any agency to exercise 
+any function which is not expressly authorized by law at the 
+time the plan is transmitted to the Congress.” 63 Stat. 205. 
+But that language merely prevented “the President, under 
+the guise of consolidating and rearranging, from actually cre­
+ating authority in the Executive Branch which had not ex­
+isted before.” Dept. of Justice, Offce of Legal Counsel, 
+Memorandum of William H. Rehnquist, Assistant Atty. Gen. 
+Page Proof Pending Publication
+
+790 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+(Sept. 11, 1969), in Reorganization Plan No. 1 of 1969 (ICC): 
+Hearing before the Subcommittee on Executive Reorga­
+nization of the Senate Committee on Government Opera­
+tions, 91st Cong., 1st Sess., 29 (1969). In other words, that 
+provision barred the President from seizing on a reorga­
+nization plan to unilaterally confer new powers on an 
+agency. 
+But that provision in no way barred Congress from later 
+enacting a law that conferred new powers on an agency sub­
+ject to a reorganization plan. That is precisely what Con­
+gress did in 1999 when it codifed the Task Force and granted 
+the AHRQ Director authority to appoint the Task Force 
+members. At that point, the AHRQ Director's authority to 
+appoint Task Force members became one of the “functions” 
+transferred to the Secretary. 80 Stat. 1610. 
+Reading Reorganization Plan No. 3 to provide for only a 
+one-time transfer of functions in 1966 and thereby freeze in 
+time the relationship between the Public Health Service and 
+the Secretary of HHS would also produce untenable—bor­
+dering on absurd—results from the standpoint of the 
+agency's practical operations. It would mean that all func­
+tions of the Public Health Service statutorily conferred on 
+the Service through 1966 would rest with the Secretary, but 
+any functions statutorily conferred on it after the 1966 Plan 
+became effective would fall outside of the Secretary's pur­
+view. There is no good or plausible reason to think that 
+Congress created such an “arbitrary bifurcation.” Supp. 
+Brief for United States 6. 
+To the extent it may be relevant, the then-Secretary of 
+HEW explained to Congress in 1966 that one objective of 
+Reorganization Plan No. 3 was to vest all of the Public 
+Health Service's current and future functions in the Secre­
+tary so that he would have the “fexibility” “to reorganize” 
+the Service—then and “at any future time”—“as the require­
+ments of the times demand.” Reorganization Plan No. 3 of 
+1966 (Public Health Service): Hearing before a Subcommittee 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+791 
+Opinion of the Court 
+of the House Committee on Government Operations, 89th 
+Cong., 2d Sess., 7 (1966). If the Secretary were vested with 
+only the functions of the Public Health Service that existed 
+as of 1966, he would lack the fexibility to reorganize the 
+Service as public health needs evolved and as Congress cor­
+respondingly conferred new powers upon the Service. 
+Third, the dissent spins out a new theory of its own, posit­
+ing that Reorganization Plan No. 3 of 1966 could not have 
+transferred the AHRQ Director's functions to the Secretary 
+because otherwise the Director would be an “empty husk.” 
+Post, at 819. But as the Government explains, the text of 
+Reorganization Plan No. 3 of 1966 is plain: It explicitly states 
+that it “ `transfer[s]' ” “ `all functions' ” of “ `offcers' ” of the 
+Public Health Service, including the AHRQ Director, “ `to 
+the Secretary.' ” Supp. Brief for United States 5 (quoting 80 
+Stat. 1610). And after that statutory transfer, the offcers 
+of the Public Health Service are not “empty husks” because 
+the Secretary may delegate responsibility to carry out func­
+tions back to the Public Health Service and its offcers. See 
+n. 6, supra. Section 2 of Reorganization Plan No. 3 ex­
+pressly provides for such delegation: It states that the “Sec­
+retary may from time to time make such provisions as he 
+shall deem appropriate authorizing the performance of any 
+of the functions transferred to him by the provisions of this 
+reorganization plan by any offcer, employee, or agency of 
+the Public Health Service.” 80 Stat. 1610. And the Secre­
+tary has in fact delegated functions back to the Public Health 
+Service. See, e. g., 31 Fed. Reg. 8964 (1966); 33 Fed. Reg. 
+5426 (1968); 53 Fed. Reg. 3457 (1988); 61 Fed. Reg. 29566 
+(1996). 
+So it is not correct, either in statutory text or in actual 
+practice, that the Reorganization Plan left the offcers of the 
+Public Health Service as “empty husks.” 
+In sum, Braidwood's and the dissent's arguments on the 
+vesting issue fall fat. Read in context, two laws taken to­
+gether—Reorganization Plan No. 3 of 1966 as ratifed by the 
+
+792 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Opinion of the Court 
+1984 Act; and the 1999 statute conferring appointment au­
+thority—expressly vest the Secretary with authority to ap­
+point the Task Force members.7 
+3 
+Braidwood's and the dissent's arguments that Congress 
+has not properly vested the Secretary with authority to ap­
+point Task Force members fail on their own terms. But if 
+there were any doubt on that score, the canon of constitu­
+tional avoidance as applied in this Court's prior Appoint­
+ments Clause cases would again dispel it. 
+Edmond v. United States is instructive. 520 U. S. 651 
+(1997). There, the challengers argued that Congress gave 
+the power to appoint judges of the Coast Guard Court of 
+Criminal Appeals to the Judge Advocate General. But be­
+cause the Judge Advocate General was not a Head of Depart­
+ment, it would have been unconstitutional for Congress to 
+vest appointment authority in the Judge Advocate General 
+alone. Rather than read the statute “in a manner that 
+would render it clearly unconstitutional,” the Court adopted 
+a “reasonable” alternative reading: It interpreted the statu­
+tory scheme to vest appointment authority in the Secretary 
+of Transportation. Id., at 658. 
+Here, reading the statutes at issue to vest appointment 
+authority in the AHRQ Director alone would likewise render 
+them “clearly unconstitutional.” Ibid. Meanwhile, it is at a 
+minimum “reasonable” to read Reorganization Plan No. 3 to 
+have transferred the AHRQ Director's appointment power 
+to the Secretary, such that the statutes together vest the 
+7 Even if the statutes vested appointment authority in both the Secre­
+tary and the AHRQ Director, the Government says (and Braidwood 
+agreed, at least at oral argument) that such a structure would not raise 
+constitutional concerns so long as the Secretary was the one to actually 
+make the appointments—as has been the case since June 2023. See Supp. 
+Brief for United States 7; Tr. of Oral Arg. 67–70, 111. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 748 (2025) 
+793 
+Opinion of the Court 
+Secretary with authority to appoint the members of the Task 
+Force. Ibid. 
+C 
+Not only has Congress vested authority to appoint the 
+Task Force members in the Secretary of HHS, the Secretary 
+has now in fact exercised that authority. The Task Force 
+members have been inferior offcers since 2010 when the Af­
+fordable Care Act was enacted. Until June 2023, the Task 
+Force members were appointed by the AHRQ Director 
+alone, not by the Secretary. Then in June 2023, after litiga­
+tion belatedly alerted the Government to the fact that Task 
+Force members had become offcers, the Secretary both rati­
+fed the Director's previous appointments of the Task Force 
+members and also re-appointed them (a sequence of events 
+that similarly occurred in Edmond). The Secretary has con­
+tinued to appoint members of the Task Force, including all 
+current members. 
+The fact that the Secretary did not begin personally ap­
+pointing the Task Force members until June 2023 is irrele­
+vant to whether the Task Force members appointed by the 
+Secretary have been properly appointed. In Edmond, the 
+Secretary of Transportation had not historically appointed 
+the Coast Guard judges. After Appointments Clause chal­
+lenges arose in litigation, the Secretary “issued a memoran­
+dum `adopting' ” the Judge Advocate General's appointments 
+as his own. Id., at 654. Those developments did not pre­
+vent the Court from concluding that the Coast Guard judges 
+were properly appointed. The same is true here. 
+*
+*
+* 
+To sum up: Task Force members issue preventive-services 
+recommendations of critical importance to patients, doctors, 
+insurers, employers, healthcare organizations, and the Amer­
+ican people more broadly. In doing so, however, the Task 
+Force members remain subject to the Secretary of HHS's 
+
+794 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+supervision and direction, and the Secretary remains subject 
+to the President's supervision and direction. So under Arti­
+cle II and this Court's precedents, Task Force members are 
+inferior offcers, and Congress may vest the power to appoint 
+them in the Secretary of HHS. Congress has done so, and 
+the Secretary has appointed the Task Force members pursu­
+ant to that grant of authority. 
+Therefore, the Task Force members' appointments are 
+fully consistent with the Appointments Clause in Article II 
+of the Constitution. The structure of the Task Force and 
+the manner of appointing its offcers preserve the chain of 
+political accountability that was central to the Framers' de­
+sign of the Appointments Clause: The Task Force members 
+were appointed by and are supervised and directed by the 
+Secretary of HHS. And the Secretary of HHS, in turn, an­
+swers to the President of the United States. 
+We reverse the judgment of the Court of Appeals and re­
+mand the case for further proceedings consistent with this 
+opinion. 
+It is so ordered. 
+Justice Thomas, with whom Justice Alito and Justice 
+Gorsuch join, dissenting. 
+To promote democratic accountability, the Appointments 
+Clause establishes a default rule that all Executive Branch 
+offcers must be appointed by the President with the Senate's 
+approval. Art. II, § 2, cl. 2. Congress may depart from this 
+default by authorizing a department head to appoint “infe­
+rior Offcers”—but only if it does so expressly. Ibid. 
+This case concerns the U. S. Preventive Services Task 
+Force, a body that issues legally binding recommendations 
+regarding preventive healthcare treatments. At the begin­
+ning of this suit, a subordinate offcial within the Department 
+of Health and Human Services (HHS) had for years ap­
+pointed the Task Force's members. Everyone now agrees 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+795 
+Thomas, J., dissenting 
+that this practice was unlawful. Everyone further agrees 
+that no one statute provides for a department head to ap­
+point the Task Force's members. But, rather than accept 
+that the default mode of appointment applies, the Govern­
+ment invented a new theory on appeal, arguing that the com­
+bination of two ambiguously worded statutes enacted dec­
+ades apart establishes that the Secretary of HHS can 
+appoint the Task Force's members. 
+The Court today rushes to embrace this theory. I cannot. 
+To begin with, I would not rule on the Government's new 
+theory before any lower court has done so. But, if we are 
+to decide this question now, I do not see how Congress has 
+spoken with the clarity needed to depart from the default 
+rule established by the Appointments Clause. In ruling 
+otherwise, the Court treats the default rule as an inconve­
+nient obstacle to be overcome, not a constitutional principle 
+to be honored. And, it distorts Congress's design for the 
+Task Force, changing it from an independent body that re­
+ports directly to the President to one subject to the control 
+of the Secretary of HHS. 
+I 
+A 
+The Appointments Clause provides that the President 
+“shall nominate, and by and with the Advice and Consent 
+of the Senate,” appoint all “Offcers of the United States.” 
+Art. II, §2, cl. 2. But, “the Congress may by Law vest the 
+Appointment of such inferior Offcers, as they think proper, 
+in the President alone, in the Courts of Law, or in the Heads 
+of Departments.” Ibid. 
+The Clause prescribes the exclusive means of appointing 
+“ `Offcers of the United States.' ” Lucia v. SEC, 585 U. S. 
+237, 244 (2018). Offcers are Government offcials who exer­
+cise “ `signifcant' ” federal authority on an “ongoing” basis. 
+Id., at 245–246. Those who do not exercise such authority 
+Page Proof Pending Publication
+
+796 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+are mere nonoffcer employees and are not subject to the 
+Clause's requirements. Id., at 245.1 
+The Appointments Clause classifes offcers as either “infe­
+rior” or noninferior. Noninferior offcers, called “principal” 
+offcers in our case law, must be appointed by the President 
+with the Senate's advice and consent. Inferior offcers by 
+“default” must be appointed in the same manner. Edmond 
+v. United States, 520 U. S. 651, 660 (1997). But, Congress 
+may depart from the default by conferring the appointment 
+power on the President alone, a department head, or the 
+courts. A principal offcer in the Executive Branch is one 
+who has no “superior” other than the President. See id., at 
+662. An inferior offcer is one “whose work is directed and 
+supervised at some level by” a principal offcer. Id., at 663. 
+The Appointments Clause serves several purposes. It 
+protects the President's control over the Executive Branch 
+by providing that only the President or a department head 
+under his control may appoint executive offcers.2 
+At the 
+same time, it checks the President's power by requiring him 
+1 The parties agree that the exercise of “signifcant authority” marks the 
+dividing line between offcers and nonoffcer employees. Brief for Peti­
+tioners 2 (internal quotation marks omitted); Brief for Respondents 4–5. 
+I will assume that this view is correct for purposes of this opinion. But 
+see Lucia, 585 U. S., at 254 (Thomas, J., concurring) (“The Founders likely 
+understood the term `Offcers of the United States' to encompass all fed­
+eral civil offcials who perform an ongoing, statutory duty—no matter how 
+important or signifcant the duty”). 
+2 Although this Court has held that Congress may sometimes vest the 
+courts with the power to appoint inferior executive offcers, Morrison 
+v. Olson, 487 U. S. 654, 673–677 (1988), I doubt that such “inter-branch” 
+appointments are consistent with the original understanding of the separa­
+tion of powers. See In re Sealed Case, 838 F. 2d 476, 489–496 (CADC 
+1988) (Silberman, J.). In any event, the Appointments Clause at a mini­
+mum prevents Congress from vesting the appointment power in itself, as 
+many preframing state legislatures did. See Freytag v. Commissioner, 
+501 U. S. 868, 904, n. 4 (1991) (Scalia, J., concurring in part and concurring 
+in judgment). 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+797 
+Thomas, J., dissenting 
+to nominate principal offcers personally and to obtain the 
+Senate's consent. These requirements ensure that the se­
+lection of offcers is a public matter in which the President 
+must justify “the propriety of his choice.” The Federalist 
+No. 76, p. 457 (C. Rossiter ed. 1961) (A. Hamilton). 
+With respect to inferior offcers, the Appointments Clause 
+balances effciency and accountability. The “obvious pur­
+pose” of allowing appointment by the President alone or a 
+department head is “administrative convenience.” Ed­
+mond, 520 U. S., at 660. But, even with this allowance, the 
+Clause still imposes signifcant constraints. The Clause per­
+mits a more informal method of appointment only when Con­
+gress affrmatively chooses one, and Congress has retained 
+the default of requiring Senate confrmation in many cases 
+where it is not constitutionally required.3 
+Moreover, even 
+when Congress chooses to depart from the default rule, it 
+can vest the appointment power no more than one rung 
+below the President in the executive hierarchy. See id., at 
+658. By preventing lower level offcials from appointing of­
+fcers, the Appointments Clause ensures that offcer selection 
+remains visible “to the public eye.” The Federalist No. 77, 
+at 461 (A. Hamilton). 
+B 
+The Preventive Services Task Force is an “independent 
+panel” of nationally recognized medical experts charged with 
+making evidence-based recommendations about preventive 
+healthcare services. App. 37. Its 16 members are physi­
+3 To give just a few examples, there are 14 Senate-confrmed positions 
+in HHS besides its head, the Secretary. See Senate Committee on Home­
+land Security and Governmental Affairs, Policy and Supporting Positions, 
+118th Cong., 2d Sess., 62–70 (Comm. Print 2024). All 93 U. S. Attorneys, 
+who are subordinate to the Attorney General, likewise are appointed only 
+by the President with Senate confrmation. 28 U. S. C. § 541(a). And, the 
+Senate confrms tens of thousands of military offcers each year. See, e. g., 
+170 Cong. Rec. D512 (May 16, 2024). 
+Page Proof Pending Publication
+
+798 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+cians and researchers in the felds of preventive medicine and 
+primary care. They work on a volunteer basis and receive 
+no compensation for their service. 
+The Task Force reviews preventive services for their med­
+ical effcacy and cost effectiveness. It assigns letter grades 
+to services, ranging from “A” to “D.” “A” represents a high 
+certainty of a substantial net beneft, and “D” represents a 
+moderate or high certainty of no net beneft. The Task 
+Force may alternatively issue an “I” grade if there is insuff­
+cient evidence to assess the balance of a service's benefts 
+and harms. 
+HHS offcials frst commissioned the Task Force in 1984 to 
+serve as a purely advisory body. In 1995, the Agency for 
+Healthcare Research and Quality (AHRQ) assumed “respon­
+sibility” for the Task Force. 63 Fed. Reg. 880 (1998). 
+AHRQ is part of the Public Health Service, a collection of 
+agencies within HHS. 42 U. S. C. § 203. The Agency is 
+headed by a Director, who is appointed by the Secretary of 
+HHS. § 299(a). The Director thus became responsible for 
+naming the Task Force's members and calling its meetings. 
+See 63 Fed. Reg. 879–880. 
+Congress codifed AHRQ's responsibility for the Task 
+Force in 1999. 113 Stat. 1659–1660. It provided that the 
+Director “may periodically convene a Preventive Services 
+Task Force to be composed of individuals with appropriate 
+expertise.” 42 U. S. C. § 299b–4(a)(1) (2000 ed.). 
+The character of the Task Force fundamentally changed in 
+2010, when Congress passed the Affordable Care Act (ACA). 
+The ACA transformed the Task Force from a purely advisory 
+body into one whose recommendations carry the force of law. 
+Specifcally, the ACA requires health-insurance issuers and 
+group health plans to cover preventive services for which the 
+Task Force has issued an “A” or “B” recommendation without 
+imposing copayments, deductibles, or other cost-sharing 
+charges on patients. 42 U. S. C. § 300gg–13(a)(1). The ACA 
+also replaced the 1999 version of § 299b–4(a)(1) with a new 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+799 
+Thomas, J., dissenting 
+version providing that the AHRQ “Director shall convene an 
+independent Preventive Services Task Force.” It further 
+provided that Task Force members and their recommenda­
+tions “shall be independent and, to the extent practicable, 
+not subject to political pressure.” § 299b–4(a)(6). Follow­
+ing this enactment, the AHRQ Director continued to appoint 
+Task Force members. 
+C 
+In 2020, four individuals and two businesses who objected 
+to covering certain preventive treatments sued the Secre­
+tary of HHS and other Government defendants, arguing that 
+the Task Force's members were invalidly appointed under 
+the Appointments Clause. The parties cross-moved for 
+summary judgment, with the Government arguing that the 
+Task Force's members are not offcers under the Clause be­
+cause they are outside experts who do not exercise signif­
+cant governmental authority. 
+The District Court granted summary judgment for the 
+challengers. Braidwood Mgmt. Inc v. Becerra, 627 F. Supp. 
+3d 624 (ND Tex. 2022). The court frst held that the Task 
+Force's members have been offcers since 2010, because the 
+ACA made their recommendations legally binding. It then 
+held that the Task Force's members had been invalidly ap­
+pointed for two independent reasons. First, because no 
+other offcers supervise the Task Force's issuance of recom­
+mendations, its members were principal offcers who had to 
+be appointed by the President with Senate confrmation. 
+Second, even if the Task Force members were inferior off­
+cers, the AHRQ Director could not appoint them because, as 
+an offcer subordinate to the Secretary of HHS, the Director 
+is not a department head. The District Court issued an in­
+junction prohibiting enforcement of the Task Force's recom­
+mendations. Braidwood Mgmt. Inc v. Becerra, 666 F. Supp. 
+3d 613 (ND Tex. 2023). 
+The Government did not defend its original theory on ap­
+peal. Instead, it argued for the frst time that the Task 
+Page Proof Pending Publication
+
+800 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+Force's members are offcers, but only inferior ones subordi­
+nate to the Secretary of HHS. And, while briefng was on­
+going, the Secretary purported to appoint the Task Force 
+members. By that act, the Government argued, the mem­
+bers now lawfully held their offces, because Congress had 
+vested the appointment of the Task Force's members in the 
+Secretary. The Government derived this purported ap­
+pointment authority from the combination of two statutes, 
+enacted decades apart. 
+First, § 299b–4(a)(1) gave the 
+AHRQ Director the power to “convene” the Task Force, 
+which the Government read to include appointing its mem­
+bers. Second, a statute called Reorganization Plan No. 3 of 
+1966, 80 Stat. 1610 (Reorganization Plan), “transferred” to 
+the Secretary “all functions” of all offcers of the Public 
+Health Service, including AHRQ. In addition to claiming to 
+appoint the members, the Secretary issued an order purport­
+ing to ratify all the recommendations that the Task Force 
+had issued from 2010 to 2022, when its members had been 
+unlawfully appointed by the AHRQ Director. 
+The challengers opposed the Government's new theory. 
+They contended that the Director's convening power does 
+not include the power to appoint, and that this power is in 
+any event not one of the functions transferred by the Reor­
+ganization Plan. The challengers also maintained that the 
+Task Force members were principal offcers who had to be 
+appointed by the President with Senate confrmation. 
+The Fifth Circuit affrmed in relevant part. Braidwood 
+Mgmt., Inc. v. Becerra, 104 F. 4th 930 (2024). The court as­
+sumed without deciding that the Secretary had the statutory 
+power to appoint the Task Force. It then held that Task 
+Force members are principal offcers. The court acknowl­
+edged that, if the Secretary has the authority to appoint the 
+Task Force's members, he would thereby have the authority 
+to remove them at will, giving him a powerful mechanism 
+for de facto control. But, that control was insuffcient to 
+make the Task Force inferior offcers, the court concluded, 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+801 
+Thomas, J., dissenting 
+because the Secretary has no authority to exercise direct 
+review or supervision over the Task Force's issuance of rec­
+ommendations. Rather, the statutory scheme “contem­
+plates complete autonomy” for the Task Force. Id., at 944. 
+The court then held that the Secretary's purported ratifca­
+tion was invalid because the Secretary has no authority to 
+“review, revise, or issue the preventive-care recommenda­
+tions himself.” Id., at 948. 
+The Government asked this Court to decide whether the 
+structure of the Task Force violates the Appointments 
+Clause. We granted certiorari. 604 U. S. 1073 (2025). 
+II 
+I would remand for the Fifth Circuit to consider the im­
+portant threshold question that it skipped: whether the Sec­
+retary has the statutory power to appoint the Task Force. 
+The Secretary may appoint the Task Force's members only 
+if (1) Congress has vested in the Secretary the power to ap­
+point them, and (2) the members are inferior offcers under 
+the Appointments Clause. The answer to the frst question 
+signifcantly affects the analysis of the second question. 
+But, no court has passed on the frst question, and this Court 
+has had only a limited opportunity to consider it. 
+We should resolve the statutory challenge to the Secre­
+tary's appointment authority before addressing the constitu­
+tional challenge. Due respect for Congress as a coordinate 
+branch of Government usually demands that we refrain from 
+calling the constitutionality of its enactments into question 
+“ `unless absolutely necessary to a decision of the case.' ” 
+Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., 
+concurring). Accordingly, before “ `reaching any constitu­
+tional questions, federal courts must consider nonconstitu­
+tional grounds for decision.' ” Jean v. Nelson, 472 U. S. 846, 
+854 (1985); see Edmond, 520 U. S., at 655–656 (considering 
+the petitioner's statutory challenge to an offcer's appoint­
+ment before his constitutional challenge). 
+Page Proof Pending Publication
+
+802 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+That rule applies with special force here because the statu­
+tory question logically precedes the constitutional question. 
+The Task Force's members are inferior offcers if their “work 
+is directed and supervised at some level” by the Secretary. 
+Id., at 663. To determine whether that is the case, our prec­
+edents instruct us to consider (1) whether the Secretary can 
+remove them at will and (2) whether the Secretary can di­
+rectly review or command their actions. See Free Enter­
+prise Fund v. Public Company Accounting Oversight Bd., 
+561 U. S. 477, 510 (2010). Whether the Secretary appoints 
+the Task Force's members affects both these inquiries. Ab­
+sent a statutory provision to the contrary, “the power of re­
+moval” is “incident to the power of appointment.” Ex parte 
+Hennen, 13 Pet. 230, 233 (1839). And, if the Secretary has 
+the statutory power to appoint, we will also be more likely 
+to conclude that he has the power to direct the Task Force 
+and review their decisions. After all, if the Secretary ap­
+points the Task Force, it must be subject to his supervision 
+to be constitutionally structured. Under the canon of con­
+stitutional avoidance, we would therefore have to interpret 
+the statutes governing the Task Force to permit secretarial 
+supervision if it is “fairly possible” to do so. United States 
+v. Jin Fuey Moy, 241 U. S. 394, 401 (1916). In contrast, if 
+Congress never gave the Secretary the appointment power, 
+it makes no constitutional difference whether the Task Force 
+answers to the Secretary or to the President alone. We 
+would have no reason to put a thumb on the scale in favor of 
+secretarial supervision.4 
+4 Whether the Secretary has statutory appointment authority may also 
+affect the appropriate remedy for an unlawful appointment. This Court's 
+“severability” doctrine directs that, when a court fnds “ `a constitutional 
+faw in a statute,' ” it should “seve[r] any `problematic portions while leav­
+ing the remainder intact,' ” unless the court can divine that Congress 
+“would have preferred” the statute's wholesale invalidation. Free Enter­
+prise Fund, 561 U. S., at 508–509. Thus, when Congress unconstitution­
+ally vests the power to appoint a principal offcer in a department head, 
+this Court will ask whether it is possible to save the appointment by “sev­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+803 
+Thomas, J., dissenting 
+The Fifth Circuit did not follow the standard order of oper­
+ations. It skipped over whether Congress had vested the 
+appointment of the Task Force's members in the Secretary 
+and instead held that, even assuming that Congress had, the 
+Task Force members are principal offcers not subject to the 
+Secretary's supervision. Because the Fifth Circuit should 
+have decided the statutory question before the constitutional 
+one, I would vacate and remand for it to do so. See Massa­
+chusetts v. Westcott, 431 U. S. 322, 323 (1977) (per curiam).5 
+It is not our “usual practice” to decide important legal ques­
+tions in the frst instance. CRST Van Expedited, Inc. v. 
+EEOC, 578 U. S. 419, 435 (2016). Deviating from standard 
+practice is particularly unwise here, where the Government 
+frst developed its statutory theory on appeal and the parties 
+have only minimally addressed the question in their principal 
+briefs. But, because the majority insists on deciding the 
+statutory question now, see ante, at 779–793, so will I. 
+ering” the provisions that insulate the offcer from supervision. See 
+United States v. Arthrex, Inc., 594 U. S. 1, 23–26 (2021) (plurality opinion). 
+But, if Congress never vested the appointment of an offcer in a depart­
+ment head in the frst place, this option is off the table. Justice Gor­
+such and I have criticized the Court's severability doctrine as inconsistent 
+with traditional remedial principles. See id., at 32–33 (Gorsuch, J., con­
+curring in part and dissenting in part); Seila Law LLC v. Consumer Fi­
+nancial Protection Bureau, 591 U. S. 197, 251–253 (2020) (Thomas, J., 
+concurring in part and dissenting in part). But, so long as this Court 
+adheres to the doctrine, the question of a department head's statutory 
+authority is very likely to emerge at the remedial stage. This reality 
+counsels further in favor of resolving statutory challenges to appointment 
+authority before constitutional challenges. 
+5 Although prudence counsels in favor of deciding the statutory question 
+frst, the Fifth Circuit's decision to skip over it was understandable. The 
+District Court passed on only the constitutional question because the Gov­
+ernment at that time did not claim that it was the Secretary's responsibil­
+ity to appoint the Task Force's members. Like us, the Fifth Circuit is not 
+supposed to be a court of frst view, so it decided only the question on 
+which it had a lower court decision from which to work. The fault for the 
+unusual posture of this case lies principally with the Government for 
+adopting an entirely new theory on appeal. 
+Page Proof Pending Publication
+
+804 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+III 
+If forced to decide, I would affrm on the ground that Con­
+gress has not given the Secretary of HHS the power to ap­
+point Task Force members. The members must therefore 
+be appointed by the President with Senate confrmation. 
+A 
+A department head may appoint an inferior offcer only if 
+Congress has “by Law vest[ed] the Appointment of such” 
+offcer in him. Art. II, § 2, cl. 2. At the time of the framing, 
+“ `by Law' ” of course meant “by statute.” Lucia, 585 U. S., 
+at 254 (Thomas, J., concurring); see United States v. Mau­
+rice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Mar­
+shall, C. J.). “[T]he verb `appoint' meant `[t]o establish any 
+thing by decree' or `[t]o allot, assign, or designate.' ” NLRB 
+v. SW General, Inc., 580 U. S. 288, 312–313 (2017) (Thomas, 
+J., concurring) (quoting 1 S. Johnson, A Dictionary of the 
+English Language (def. 3) (6th ed. 1785); 1 N. Webster, An 
+American Dictionary of the English Language (def. 3) (1828); 
+citations omitted). Thus, to vest appointment power for an 
+offce in a department head, Congress must pass a statute 
+giving him the authority to assign a person to that offce. 
+The vesting of appointment authority must be explicit. 
+When reading two legal texts together, the “specifc con­
+trols” over the “general.” National Cable & Telecommuni­
+cations Assn., Inc. v. Gulf Power Co., 534 U. S. 327, 335–336 
+(2002). The Appointments Clause's default rule of appoint­
+ment by the President with Senate confrmation specifcally 
+addresses how an inferior offcer is to be appointed. Ap­
+pointment authority therefore cannot be deemed implicit in 
+a more general grant of authority to a department head; only 
+a provision that specifcally addresses appointment can dis­
+place the default. And, because the Appointments Clause's 
+default rule, as a constitutional provision, is of greater “dig­
+nity” than a statute, we should not presume that Congress 
+meant to set it aside if the question is doubtful. See A. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 748 (2025) 
+805 
+Thomas, J., dissenting 
+Scalia & B. Garner, Reading Law 187 (2012) (Scalia & Gar­
+ner). In particular, we cannot infer appointment authority 
+from a principal offcer's authority to supervise an inferior 
+offcer. By its default rule, the Appointments Clause pre­
+sumes that an inferior offcer will act at the direction of a 
+principal offcer and yet be appointed by the President with 
+Senate confrmation. 
+Further, the statute must vest the power in the depart­
+ment head himself, not one of his subordinates. By limiting 
+the executive offcials who can appoint inferior offcers to 
+“the President” and “the Heads of Departments,” Art. II., 
+§ 2, cl. 2, the Appointments Clause prohibits the exercise of 
+appointment authority by inferior offcers, even though in 
+other contexts a department head can validly act through 
+such subordinate offcers. See Scalia & Garner 107 (“The 
+expression of one thing implies the exclusion of others” 
+(boldface deleted)). Thus, a law purporting to vest the ap­
+pointment power in an offcer below a department head is 
+not a backdoor way of vesting power in the head; it is a 
+“clearly unconstitutional” enactment. Edmond, 520 U. S., at 
+658; accord, 11 Op. Atty. Gen. 209, 213 (1865). 
+Our precedents illustrate these principles. In 1866, Con­
+gress “authorized” an “assistant treasurer . . . to appoint, 
+with the approbation of the Secretary of the Treasury,” cer­
+tain “clerk[s].” 14 Stat. 202 (emphasis added). Because the 
+statute required the Secretary's personal approval, this 
+Court held that such clerks were “appointed by the head of 
+a department within the meaning of the” Appointments 
+Clause. United States v. Hartwell, 6 Wall. 385, 393–394 
+(1868). In contrast, the Court held that a statute authoriz­
+ing the “collector” of customs to employ “clerks,” Rev. Stat. 
+§ 2634 (repealed), did not vest the appointment power in the 
+Secretary of the Treasury, even though the collector was 
+subordinate to that Secretary. United States v. Smith, 124 
+U. S. 525, 532–533 (1888). Unlike in Hartwell, no “act of 
+Congress” established that the clerks' appointment “could 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+806 
+KENNEDY v. BRAIDWOOD MANAGEMENT, INC. 
+Thomas, J., dissenting 
+only be made with the approbation of the Secretary.” 124 
+U. S., at 532; see also United States v. Germaine, 99 U. S. 
+508, 511 (1879) (holding that Congress cannot vest the 
+appointment power by conferring it on offcials who are 
+“the mere aids and subordinates of the heads of the 
+departments”). 
+The Executive Branch—despite having every institutional 
+incentive to avoid the hurdle of Senate confrmation—has 
+also long recognized that only an explicit statute can vest 
+the appointment power. For over 170 years, the Attorney 
+General has held that “without there be[ing an] express en­
+actment to the contrary, . . . the appointment of any offcer 
+of the United States belongs to the President, by and with 
+the advice and consent of the Senate.” 6 Op. Atty. Gen. 1 
+(1853) (emphasis added); accord, 15 Op. Atty. Gen. 449, 450 
+(1878); 17 Op. Atty. Gen. 532, 533 (1883); 26 Op. Atty. Gen. 
+627, 629 (1908); 29 Op. Atty. Gen. 116, 117 (1911); 38 Op. Atty. 
+Gen. 566, 574 (1937); 20 Op. OLC 124, 139, n. 46 (1996). In 
+1908, for instance, Congress created the offce of Second Dep­
+uty Comptroller of the Currency, to assist the Comptroller 
+and the First Deputy with their duties. 35 Stat. 203. Al­
+though Congress had vested the authority to appoint the 
+Comptroller and First Deputy in the Secretary of the Treas­
+ury, it enacted no language to that effect for the Second Dep­
+uty. See 26 Op. Atty. Gen., at 629. Despite fnding the re­
+sult “anomalous,” the Attorney General concluded that the 
+Secretary did “not possess the power to appoint this Second 
+Deputy.” Ibid. 
+Finally, because of the need for vesting to be explicit, Con­
+gress's choice of words matters. When the First Congress 
+sought to vest the appointment of an inferior offcer in a 
+department head, it usually, if not always, enacted a provi­
+sion stating that the head shall “appoint” the offcer. See, 
+e. g., 1 Stat. 29, 50, 65, 68. Although “appoint” is not the only 
+verb that Congress can use, see SW General, 580 U. S., at 
+313 (Thomas, J., concurring), this Court has been reluctant 
+to fnd a vesting where the statute in question uses a verb 
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+PRELIMINARY PRINT 
+Volume 601 U. S. Part 2 
+Pages 285–293 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 15, 2024 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+OCTOBER TERM, 2023 
+285 
+Syllabus 
+DeVILLIER et al. v. TEXAS 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 22–913. Argued January 16, 2024—Decided April 16, 2024 
+Richard DeVillier and more than 120 other petitioners own property north 
+of U. S. Interstate Highway 10 between Houston and Beaumont, Texas. 
+The dispute here arose after the State of Texas took action to use por­
+tions of I–10 as a food evacuation route, installing a roughly 3-foot-tall 
+barrier along the highway median to act as a dam. When subsequent 
+hurricanes and storms brought heavy rainfall, the median barrier per­
+formed as intended, keeping the south side of the highway open. But 
+it also fooded petitioners' land to the north, causing signifcant damage 
+to their property. DeVillier fled suit in Texas state court. He alleged 
+that by building the median barrier and using his property to store 
+stormwater, Texas had effected a taking of his property for which the 
+State must pay just compensation. Other property owners fled similar 
+suits. Texas removed the cases to federal court, where they were con­
+solidated into a single proceeding with one operative complaint. The 
+operative complaint includes inverse-condemnation claims under both 
+the Texas Constitution and the Takings Clause of the Fifth Amendment. 
+As relevant, Texas moved to dismiss the federal inverse-condemnation 
+claim, arguing that a plaintiff has no cause of action arising directly 
+under the Takings Clause. The District Court denied Texas' motion, 
+concluding that a property owner may sue a State directly under the 
+Takings Clause. The Fifth Circuit reversed, holding “that the Fifth 
+Amendment Takings Clause as applied to the states through the Four­
+teenth Amendment does not provide a right of action for takings claims 
+against a state.” 53 F. 4th 904 (per curiam). 
+Held: DeVillier and the other property owners should be permitted to 
+pursue their claims under the Takings Clause through the cause of ac­
+tion available under Texas law. The Takings Clause of the Fifth 
+Amendment states: “nor shall private property be taken for public use, 
+without just compensation.” The Court has explained that “a property 
+owner acquires an irrevocable right to just compensation immediately 
+upon a taking” “[b]ecause of `the self-executing character' of the Tak­
+ings Clause `with respect to compensation.' ” Knick v. Township of 
+Scott, 588 U. S. 180, 192 (quoting First English Evangelical Lutheran 
+Church of Glendale v. County of Los Angeles, 482 U. S. 304, 315). The 
+Page Proof Pending Publication
+
+286 
+DeVILLIER v. TEXAS 
+Syllabus 
+question here concerns the procedural vehicle by which a property 
+owner may seek to vindicate that right. Constitutional rights do not 
+typically come with a built-in cause of action to allow for private en­
+forcement in courts, see Egbert v. Boule, 596 U. S. 482, 490–491, and so 
+they are asserted offensively pursuant to an independent cause of action 
+designed for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier relies 
+on First English and other cases to argue that the Takings Clause cre­
+ates by its own force a cause of action authorizing suits for just compen­
+sation. But those cases do not directly confront whether the Takings 
+Clause provides a cause of action. It would be imprudent to decide 
+that question without frst establishing the premise in the question pre­
+sented that no other cause of action exists to vindicate the property 
+owner's rights under the Takings Clause. Texas state law does provide 
+an inverse-condemnation cause of action by which property owners may 
+seek just compensation against the State based on both the Texas Con­
+stitution and the Takings Clause. This case therefore does not present 
+the circumstance in which a property owner has no cause of action to 
+seek just compensation. The Court therefore remands so that DeVillier 
+and the other property owners may proceed through the cause of action 
+available under Texas law. Pp. 291–293. 
+53 F. 4th 904, vacated and remanded. 
+Thomas, J., delivered the opinion for a unanimous Court. 
+Robert J. McNamara argued the cause for petitioners. 
+With him on the briefs were Andrew H. Ward, Christen 
+Mason Hebert, Daniel H. Charest, E. Lawrence Vincent, and 
+Charles Irvine. 
+Aaron L. Nielson, Solicitor General of Texas, argued the 
+cause for the State of Texas. With him on the brief were 
+Lanora C. Pettit, Principal Deputy Solicitor General, 
+Natalie D. Thompson, Kateland R. Jackson, and Sara B. 
+Baumgardner, Assistant Solicitors General, Ken Paxton, At­
+torney General, Brent Webster, First Assistant Attorney 
+General, and J. Andrew Mackenzie, Assistant Attorney 
+General. 
+Deputy Solicitor General Kneedler argued the cause for 
+the United States as amicus curiae urging affrmance. 
+With him on the brief were Solicitor General Prelogar, As­
+Page Proof Pending Publication
+
+Cite as: 601 U. S. 293 (2024) 
+287 
+Opinion of the Court 
+sistant Attorney General Kim, Principal Deputy Assistant 
+Attorney General Boynton, Anthony A. Yang, William B. 
+Lazarus, John L. Smeltzer, and Alisa B. Klein.* 
+Justice Thomas delivered the opinion of the Court. 
+Richard DeVillier alleges that the State of Texas took his 
+property for stormwater storage. He sought just compensa­
+tion under the Takings Clause of the Fifth Amendment, ar­
+guing that the Constitution itself authorized him to bring 
+suit. We granted certiorari to decide whether “a person 
+whose property is taken without compensation [may] seek 
+redress under the self-executing Takings Clause even if the 
+*Briefs of amici curiae urging reversal were fled for the American 
+Farm Bureau Federation by Paul Beard II, Susan V. Warner, Ellen Steen, 
+and Travis Cushman; for the Atlantic Legal Foundation by Lawrence S. 
+Ebner and Nancie G. Marzulla; for the Chamber of Commerce of the 
+United States of America by Jeremy C. Marwell, Andrew R. Varcoe, and 
+Jonathan D. Urick; for the National Association of Realtors® et al. by 
+Brett A. Shumate and William J. Strench; for the Pacifc Legal Foundation 
+et al. by Deborah J. La Fetra, Robert H. Thomas, Kathryn D. Valois, 
+Elizabeth Milito, and Ilya Shapiro; for James W. Ely, Jr., et al. by Thomas 
+G. Saunders, David Tryon, and Jay Carson; for Ilya Somin et al. by Caro­
+line C. Lindsay and Anastasia P. Boden; and for Ernest A. Young by 
+Gregg J. Costa. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Minnesota et al. by Keith Ellison, Attorney General of Minnesota, 
+Liz Kramer, Solicitor General, and Michael Goodwin and Colin O'Dono­
+van, Assistant Attorneys General, and by the Attorneys General for 
+their respective States as follows: Steve Marshall of Alabama, Treg Taylor 
+of Alaska, Raúl Labrador of Idaho, Theodore E. Rokita of Indiana, 
+Jeff Landry of Louisiana, Lynn Fitch of Mississippi, Michael T. Hilgers 
+of Nebraska, Matthew J. Platkin of New Jersey, Josh Stein of North 
+Carolina, Drew Wrigley of North Dakota, Dave Yost of Ohio, Gentner 
+Drummond of Oklahoma, Ellen F. Rosenblum of Oregon, Alan Wilson 
+of South Carolina, Sean Reyes of Utah, and Jason S. Miyares of 
+Virginia. 
+Felicia H. Ellsworth and Eric L. Hawkins fled a brief for Carlos M. 
+Vázquez as amicus curiae. 
+Page Proof Pending Publication
+
+288 
+DeVILLIER v. TEXAS 
+Opinion of the Court 
+legislature has not affrmatively provided them with a cause 
+of action.” Pet. for Cert. i. That question assumes the 
+property owner has no separate cause of action under which 
+to bring a claim based on the Takings Clause. But, that is 
+not the case here. Texas law provides a cause of action that 
+allows property owners to vindicate their rights under the 
+Takings Clause. We therefore vacate and remand so that 
+DeVillier's claims may proceed under Texas' state-law cause 
+of action. 
+I 
+Richard DeVillier and more than 120 other petitioners own 
+property north of U. S. Interstate Highway 10 between 
+Houston and Beaumont, Texas.1 
+The State of Texas under­
+took several projects to facilitate the use of that portion of 
+the highway as a food-evacuation route. It installed a 
+roughly 3-foot-tall barrier along the highway median to act 
+as a dam, preventing stormwater from covering the south 
+side of the road. 
+In August 2017, Hurricane Harvey brought heavy rain­
+fall to southeast Texas. The new median barrier per­
+formed as intended, keeping the south side of the highway 
+open. But, it also fooded petitioners' land to the north, 
+displacing them from their homes, damaging businesses, 
+ruining crops, killing livestock, and destroying family heir­
+looms. The same thing happened during Tropical Storm 
+Imelda in 2019. As depicted, the median barrier kept the 
+south side of the highway open (on the left side of both 
+pictures) by holding back stormwater, which then sub­
+merged property north of the highway (on the right side 
+of both pictures): 
+1 Because this case comes to us at the pleading stage, we assume the 
+truth of the facts alleged in the operative complaint. See, e.g., Swierkie­
+wicz v. Sorema N. A., 534 U. S. 506, 508, n. 1 (2002). 
+Page Proof Pending Publication
+
+Cite as: 601 U. S. 293 (2024) 
+289 
+Opinion of the Court 
+Figure 1 
+Page Proof Pending Publication
+Figure 2 
+Because heavy rainfall is not uncommon in southeast 
+Texas, the median barrier will continue to cause fooding on 
+DeVillier's land during future storms. 
+DeVillier fled suit in Texas state court. He alleged that, 
+by building the median barrier and using his property to 
+store stormwater, Texas had effected a taking of his prop­
+erty. DeVillier argued that he was therefore entitled to just 
+
+Page Proof Pending Publication
+290 
+DeVILLIER v. TEXAS 
+Opinion of the Court 
+compensation under both the United States and Texas Con­
+stitutions. 
+Other property owners filed similar suits. 
+Texas removed the cases to federal court, where they were 
+consolidated into a single proceeding with one operative 
+complaint. 
+The operative complaint includes inverse-
+condemnation claims under both the Texas Constitution and 
+the Takings Clause of the Fifth Amendment. See Knick v. 
+Township of Scott, 588 U. S. 180, 186 (2019) (“Inverse 
+condemnation is a cause of action against a governmental 
+defendant to recover the value of property which has been 
+taken in fact by the governmental defendant” (internal quo­
+tation marks omitted)). 
+As relevant, Texas moved to dismiss the federal inverse-
+condemnation claim, arguing that a plaintiff has no cause of 
+action arising directly under the Takings Clause. It con­
+tended that only Rev. Stat. § 1979, 42 U. S. C. § 1983, provides 
+a vehicle to assert constitutional violations, and § 1983 does 
+not authorize claims against a State. DeVillier did not dis­
+pute that he intended to bring his federal claim directly 
+under the Fifth Amendment. Instead, he responded that 
+the Takings Clause is “self-executing,” which, he argued, 
+means that the Clause itself provides a cause of action for 
+just compensation. 
+The District Court denied Texas' motion, concluding that 
+a property owner may sue a State directly under the 
+Takings Clause. The Court of Appeals disagreed. In a 
+one-paragraph opinion, it “h[eld] that the Fifth Amendment 
+Takings Clause as applied to the states through the Four­
+teenth Amendment does not provide a right of action for 
+takings claims against a state.” 53 F. 4th 904 (CA5 2023) 
+(per curiam). 
+We granted certiorari to decide whether a property owner 
+may sue for just compensation directly under the Takings 
+Clause. 600 U. S. ––– (2023). We now vacate and remand 
+for further proceedings. 
+
+Cite as: 601 U. S. 293 (2024) 
+291 
+Opinion of the Court 
+II 
+The Takings Clause of the Fifth Amendment states: “nor 
+shall private property be taken for public use, without just 
+compensation.” We have explained that “a property owner 
+acquires an irrevocable right to just compensation immedi­
+ately upon a taking” “[b]ecause of `the self-executing charac­
+ter' of the Takings Clause `with respect to compensation.' ” 
+Knick, 588 U. S., at 192 (quoting First English Evangelical 
+Lutheran Church of Glendale v. County of Los Angeles, 482 
+U. S. 304, 315 (1987)). Texas does not dispute the nature of 
+the substantive right to just compensation. This case pre­
+sents only a question regarding the procedural vehicle by 
+which a property owner may seek to vindicate that right. 
+Constitutional rights do not typically come with a built-
+in cause of action to allow for private enforcement in courts. 
+See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, 
+constitutional rights are generally invoked defensively in 
+cases arising under other sources of law, or asserted offen­
+sively pursuant to an independent cause of action designed 
+for that purpose, see, e.g., 42 U. S. C. § 1983. DeVillier ar­
+gues that the Takings Clause is an exception. He relies on 
+First English Evangelical Lutheran Church of Glendale v. 
+County of Los Angeles to assert that the just-compensation 
+requirement of the Takings Clause is “self-executing” and 
+that “[s]tatutory recognition [is] not necessary” for takings 
+claims because they “are grounded in the Constitution itself.” 
+482 U. S., at 315 (internal quotation marks omitted). In 
+other words, the Takings Clause creates by its own force a 
+cause of action authorizing suits for just compensation. 
+The cases that DeVillier cites do not directly confront 
+whether the Takings Clause provides a cause of action for 
+just compensation. First English itself proceeded under a 
+state-law cause of action. Id., at 313–314, n. 8. DeVillier 
+also points to several takings cases where property owners 
+sought injunctions to prevent the Government from interfer­
+Page Proof Pending Publication
+
+292 
+DeVILLIER v. TEXAS 
+Opinion of the Court 
+ing with their property rights, such as by obtaining ease­
+ments or imposing zoning regulations. See Dohany v. Rog­
+ers, 281 U. S. 362, 364 (1930); Delaware, L. & W. R. Co. v. 
+Morristown, 276 U. S. 182, 188 (1928); Village of Euclid v. 
+Ambler Realty Co., 272 U. S. 365, 384 (1926); Cuyahoga 
+River Power Co. v. Akron, 240 U. S. 462, 463 (1916); Norwood 
+v. Baker, 172 U. S. 269, 276 (1898). Because none of those 
+cases relied on § 1983 for a cause of action, he reasons that 
+those cases must have proceeded directly under the Consti­
+tution. But, the mere fact that the Takings Clause provided 
+the substantive rule of decision for the equitable claims in 
+those cases does not establish that it creates a cause of action 
+for damages, a remedy that is legal, not equitable, in nature.2 
+That said, the absence of a case relying on the Takings 
+Clause for a cause of action does not by itself prove there is 
+no cause of action. It demonstrates only that constitutional 
+concerns do not arise when property owners have other ways 
+to seek just compensation. Our precedents do not cleanly 
+answer the question whether a plaintiff has a cause of action 
+arising directly under the Takings Clause. 
+But, this case does not require us to resolve that question. 
+The question presented asks what would happen if a prop­
+erty owner had no cause of action to vindicate his rights 
+under the Takings Clause. It would be imprudent to decide 
+that question without satisfying ourselves of the premise 
+that there is no cause of action. Our constitutional system 
+assigns to state offcers “a coordinate responsibility to en­
+force [the Constitution] according to their regular modes of 
+procedure.” Howlett v. Rose, 496 U. S. 356, 367 (1990). It 
+therefore looks to “[t]he good faith of the States [to] provid[e] 
+an important assurance that `this Constitution, and the Laws 
+2 The signifcance of DeVillier's equitable cases is further obscured by 
+fundamental changes to the law of equity that postdate those decisions. 
+Compare Fed. Rule Civ. Proc. 2 with A. Bellia & B. Clark, The Original 
+Source of the Cause of Action in Federal Courts, 101 Va. L. Rev. 609, 
+653 (2015). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 601 U. S. 293 (2024) 
+293 
+Opinion of the Court 
+of the United States which shall be made in Pursuance 
+thereof shall be the supreme Law of the Land.' ” Alden v. 
+Maine, 527 U. S. 706, 755 (1999) (quoting U. S. Const., 
+Art. VI; original alterations omitted). We should not 
+“assume the States will refuse to honor the Constitution,” 
+including the Takings Clause, because “States and their 
+offcers are [also] bound by obligations imposed by the 
+Constitution.” 527 U. S., at 755. 
+The premise that Texas left DeVillier with no cause of ac­
+tion to obtain the just compensation guaranteed by the Tak­
+ings Clause does not hold. Texas state law provides a cause 
+of action by which property owners may seek just compensa­
+tion against the State. As Texas explained at oral argu­
+ment, its state-law inverse-condemnation cause of action pro­
+vides a vehicle for takings claims based on both the Texas 
+Constitution and the Takings Clause. Tr. of Oral Arg. 38; 
+id., at 40 (citing Baytown v. Schrock, 645 S. W. 3d 174 (Tex. 
+2022)); Tr. of Oral Arg. 59–60. And, although Texas as­
+serted that proceeding under the state-law cause of action 
+would require an amendment to the complaint, it also as­
+sured the Court that it would not oppose any attempt by 
+DeVillier and the other petitioners to seek one. Id., at 41, 
+61, 64. This case therefore does not present the circum­
+stance in which a property owner has no cause of action to 
+seek just compensation. On remand, DeVillier and the 
+other property owners should be permitted to pursue their 
+claims under the Takings Clause through the cause of action 
+available under Texas law. 
+III 
+The judgment of the Court of Appeals is vacated, and the 
+case is remanded for further proceedings consistent with 
+this opinion. 
+It is so ordered. 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+ 
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+_________________ 
+_________________ 
+1 
+Cite as: 604 U. S. ____ (2024) 
+Statement of SOTOMAYOR, J. 
+SUPREME COURT OF THE UNITED STATES 
+No. 24–5753 (24A349) 
+ROBERT LESLIE ROBERSON III v. TEXAS 
+ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF 
+CERTIORARI TO THE TEXAS COURT OF CRIMINAL APPEALS 
+[October 17, 2024] 
+The application for stay of execution of sentence of death 
+presented to JUSTICE ALITO and by him referred to the
+Court is denied. The petition for a writ of certiorari is de­
+nied. 
+ Statement of JUSTICE SOTOMAYOR respecting the denial
+of the application for stay of execution and denial of certio­
+rari. 
+In 2003, a Texas jury convicted Robert Leslie Roberson of 
+murdering his chronically ill infant daughter, Nikki, and 
+sentenced him to death.  At trial, the State relied heavily 
+on expert testimony to show that “child physical abuse con­
+sistent with the picture of what they call shaken impact 
+syndrome,” or shaken baby syndrome, had caused Nikki’s
+death. Tr. 55 (Feb. 3, 2003).  At the time, infants exhibiting
+a triad of symptoms—subdural bleeding, brain swelling, 
+and retinal hemorrhages—were presumed to be victims of 
+child abuse, absent evidence of a major traumatic event 
+such as a car crash. This view went so unquestioned that 
+Roberson’s own defense counsel told the jury in his opening
+statement that this was “unfortunately a shaken baby 
+case,” that the evidence would “show that Nikki did suffer 
+injuries that are totally consistent with those applied by ro­
+tational forces more commonly known as shaken baby syn­
+drome,” and that he would not “tell you that there is just no 
+responsibility here at all.”  Id., at 57–58. 
+As the Texas Court of Criminal Appeals (TCCA) has itself 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+ROBERSON v. TEXAS 
+Statement of SOTOMAYOR, J. 
+confirmed, the scientific basis for shaken baby syndrome
+has since been called into significant question. Were the 
+experts at Roberson’s trial to testify to the same theory 
+again today, they “would be confronted with twenty years 
+of reputable scientific evidence that contradicts their trial
+testimony.” 
+Ex parte Andrew Wayne Roark, No. WR– 
+56,380–03, 2024 WL 4446858, at *26 (Tex. Ct. Crim. App.,
+Oct. 9, 2024).  For that reason, the TCCA just this week 
+granted a new trial to Andrew Wayne Roark, a non-capital 
+defendant whose child-abuse conviction rested on the same 
+shaken-baby-syndrome testimony, from the same expert 
+witness, that led to Roberson’s conviction.  When Roberson 
+sought a stay of execution based on the argument the TCCA 
+credited in Roark, the TCCA summarily denied relief. 
+Roberson now seeks a stay of execution from this Court, 
+but he presents no cognizable federal claim. Meanwhile, 
+mounting evidence suggests that Nikki died from a combi­
+nation of pneumonia and improperly prescribed medica­
+tion, that Nikki’s severe bruising could well have occurred, 
+at least in part, as a result of her extensive medical proce­
+dures at the hospital, and that Roberson (who repeatedly 
+sought emergency medical care for his daughter in the days
+and hours leading up to her death) committed no crime at
+all. Because this Court is powerless to act without a color-
+able federal claim, and because the Texas Board of Pardons 
+and Paroles declined to recommend clemency, only one rem­
+edy remains: an executive grant of a reprieve delaying Rob­
+erson’s execution by thirty days. 
+I 
+A 
+In January 2002, Roberson discovered that he was the fa­
+ther of a young child, who had then just turned two and 
+resided with her maternal grandparents.  Roberson took 
+custody of Nikki and cared for her together with his par­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+3 
+Cite as: 604 U. S. ____ (2024) 
+Statement of SOTOMAYOR, J. 
+ents. Nikki suffered from several serious illnesses, includ­
+ing chronic antibiotic-resistant infections and unexplained
+“breathing apnea.”  Pet. App. 208a–210a, 285a, 312a.  On 
+January 28, 2002, Roberson and his mother took Nikki to
+the hospital following five days of vomiting, coughing, and 
+diarrhea; an attending physician prescribed Phenergan, a
+potent anti-nausea medication, and sent Nikki back home.
+As Nikki’s fever continued to rise, Roberson brought her 
+back to the hospital the next morning.  Although Nikki now
+had a 104.5 degree fever, the attending physicians pre­
+scribed Phenergan with Codeine (a cough medication), and 
+again sent Nikki home.  The FDA has since warned against
+prescribing these medications to young children.  Phener­
+gan, the FDA warns, “should not be used in pediatric pa­
+tients less than 2 years of age because of the potential for 
+fatal respiratory depression.”  Codeine, too, “carr[ies] seri­
+ous risks, including slowed or difficult breathing and death,
+which appear to be a greater risk in children younger than
+12 years.”*
+When Roberson woke up the next morning, he found 
+Nikki turning blue and unable to breathe.  After attempting
+to revive her, Roberson called emergency services.  He told 
+police that Nikki had fallen out of bed earlier that night,
+that he had comforted her and sat with her for two hours 
+before falling back asleep, and that he had found her unre­
+sponsive when he next woke up.  Tr. 170 (Feb. 3, 2003). 
+Over the course of two days, doctors made extensive efforts 
+to treat Nikki, including by surgically affixing a pressure 
+—————— 
+*FDA, FDA-Approved Drugs, Phenergan, online at https://www.
+accessdata.fda.gov/drugsatfda_docs/label/ 2004/07935s030lbl.pdf (last
+accessed Oct. 17, 2024); FDA, FDA Drug Safety Communication: FDA
+requires labeling changes for prescription opioid cough and cold medi­
+cines to limit their use to adults 18 years and older (Apr. 20, 2017), 
+https://www.fda.gov/drugs/drug-safety-and-availability/fda-drug-safety-
+communication-fda-restricts -use -prescription-codeine-pain-and-cough­
+medicines-and (last accessed Oct. 17, 2024). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+  
+4 
+ROBERSON v. TEXAS 
+Statement of SOTOMAYOR, J. 
+monitor to the top of her skull.  Tragically, these efforts 
+could not save Nikki’s life. 
+Medical personnel diagnosed Nikki with shaken baby 
+syndrome based on the “triad” of symptoms: subdural bleed­
+ing, brain swelling, and retinal hemorrhages.  An autopsy
+revealed evidence of internal bleeding near Nikki’s brain,
+as well as extensive bruising on her head, face, and shoul­
+ders, leading the doctor who conducted the autopsy to con­
+clude that Nikki had died of “blunt force head injuries.” Tr. 
+55 (Feb. 3, 2003). 
+Texas charged Roberson with capital murder.  At trial, 
+the State repeatedly argued that “Nikki died or . . . was the 
+victim of child physical abuse consistent with the picture of 
+what they call shaken impact syndrome” or shaken baby 
+syndrome. Id., at 54–55.  Notwithstanding Roberson’s in­
+sistence that he was innocent and the abundant evidence 
+that Nikki had been severely ill prior to her death, Rob­
+erson’s trial counsel conceded that his client had abused 
+Nikki and argued only that Roberson had not intended to 
+kill her. Id., at 60–61. 
+The State called Dr. Janet Squires as an expert witness
+to substantiate its theory that Nikki had died of shaken
+baby syndrome.  Dr. Squires testified that Nikki’s extensive
+brain injuries could not have been “explained by a simple
+impact.” Tr. 107 (Feb. 4, 2003).  Instead, she said, it was 
+her opinion “that there was some component of shaking 
+that happened to explain all the deep brain injury out of
+proportion, I would say, to the injury to the skull and the
+back of the head.”  Id., at 107–108. Dr. Squires further tes­
+tified that children can “stop breathing immediately” if “you
+shake them hard enough and you hurt them bad enough.” 
+Id., at 108. Both Dr. Squires and Dr. Urban (the physician 
+who had conducted the autopsy) also testified to the bruis­
+ing on Nikki’s body.  Because they examined Nikki only af­
+ter her treatment at the hospital, however, their testimony
+left unclear precisely when Nikki sustained these injuries. 
+
+ 
+ 
+ 
+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+Cite as: 604 U. S. ____ (2024) 
+Statement of SOTOMAYOR, J. 
+See e.g., Tr. 72 (Feb. 5, 2003) (Dr. Urban acknowledging 
+medical treatment could have caused some of the bruising); 
+id., at 96 (similar); id., at 79 (Dr. Urban noting that she was 
+“not prepared to say” bruises on Nikki’s arm and foot had 
+been caused by Roberson).  In closing, the prosecution relied
+on this expert testimony to argue again that Nikki died of 
+“shaken baby syndrome” and “shaken impact syndrome.” 
+Tr. 25 (Feb. 11, 2003).  The jury convicted Roberson and 
+sentenced him to death. 
+B 
+In 2016, Roberson filed a habeas petition under a Texas
+statute that allows a court to grant habeas relief when new 
+scientific evidence casts doubt on a conviction.  Tex. Code. 
+Crim. Proc. art. 11.073.  In his petition, Roberson presented 
+extensive evidence, including in the form of expert testi­
+mony, that the medical community no longer recognized the 
+“triad” as presumptive evidence of child abuse. Expert 
+opinion, rather, supported the conclusion that Nikki’s only
+external injuries were consistent with a short fall from her
+bed, and that the extensive subdural bleeding found at the
+autopsy (which led to the conclusion that Nikki had died 
+from blunt force impacts to her head) had in fact been a re­
+sult of her surgical treatment in the hospital.  Further sup­
+porting that theory, Roberson presented CAT scans taken
+of Nikki’s head soon after she initially arrived at the hospi­
+tal, which showed only a very small amount of subdural
+bleeding.
+At an evidentiary hearing, multiple specialists further
+testified that Nikki’s lungs showed severe pneumonia and 
+that she had a toxic level of respiratory-suppressing pre­
+scription drugs in her system at the time of her death.  Rob­
+erson also pointed to the FDA’s urgent warnings against 
+the use of Phenergan and Codeine in young children “be­
+cause of the potential for fatal respiratory depression”
+(Phenergan) and the serious risk of “slowed or difficult 
+
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+6 
+ROBERSON v. TEXAS 
+Statement of SOTOMAYOR, J. 
+breathing and death” (Codeine).  In an order that adopted 
+large portions of the State’s proposed findings of fact verba­
+tim, the trial court denied Roberson relief. It found that no 
+“false evidence was presented in regards to” shaken-baby 
+syndrome, and that in any event “no evidence was pre­
+sented to the jury that shaking alone” had caused Nikki’s
+death. Pet. App. 177a, 181a.  The trial court’s findings did 
+not address the other evidence presented at the evidentiary 
+hearings. The TCCA summarily affirmed.  App. 4a. 
+In the years that followed, Roberson retained additional 
+experts who each concluded that Nikki had died of pneumo­
+nia and toxic levels of anti-respiratory drugs.  Based on that 
+additional evidence, Roberson filed another state habeas 
+petition, which the TCCA declined to consider on proce­
+dural grounds.  This Court denied certiorari.  See 144 S. Ct. 
+129 (mem.) (Oct. 2, 2023). 
+C 
+As Roberson sought to prove his innocence, the parallel
+case of Andrew Wayne Roark made its way through the 
+Texas courts. Roark’s case involved claims nearly identical
+to Roberson’s, raised under the same provisions of Texas
+law. There, as here, the State had argued at trial that 
+Roark “caused the infant victim serious bodily injury by vi­
+olently shaking her and possibly striking her with or
+against something, respectively referred to as Shaken Baby 
+Syndrome and Shaken Impact Syndrome.” Ex parte Roark, 
+2024 WL 4446858, at *2.  There, as here, the State had re­
+lied on expert testimony from Dr. Janet Squires about
+shaken baby syndrome to secure a conviction.  Id., at *3. 
+There, as here, the defendant challenged his conviction on 
+the ground that the science underlying the shaken baby 
+syndrome diagnosis had since been discredited. 
+In a landmark opinion, the TCCA held that, based on cur­
+rent medical science, “there would be a marked shift in tes­
+timony today concerning the effect of a short-distance fall 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+Cite as: 604 U. S. ____ (2024) 
+Statement of SOTOMAYOR, J. 
+to a child, the effect of shaking a child . . . retinal hemor­
+rhaging, and [shaken baby syndrome] in general as applied 
+to [the victim’s] injuries.”  Id., at *23. Had Roark been tried 
+on the same theory today, the TCCA explained: 
+The [State’s] experts would be confronted with twenty
+years of reputable scientific studies and publications
+that, if graphed, continually point away from their 
+stated positions. If the expert were to experience the
+ostrich effect and wish to bury his or her head in the 
+sand, then that expert would have to bear the brunt of 
+a grueling cross-examination. One in which they would 
+be confronted with twenty years of reputable scientific 
+evidence that contradicts their trial testimony. 
+Id., at *26. The TCCA thus granted Roark a new trial.  Ibid.
+ While Roark was pending before the TCCA, Roberson
+filed a “suggestion for rehearing” with that court seeking 
+reconsideration of its prior decision on his habeas petition,
+based on the proceedings in Roark and on a statement of 
+support from 86 members of the Texas House of Represent­
+atives. Pet. App. 492–546a, 547–550a.  In that statement, 
+the bipartisan House Criminal Justice Caucus urged the
+Board of Pardons and Paroles to recommend clemency in
+light of the “strong evidence of [Roberson’s] innocence.  Id., 
+at 548a. The representatives further explained that the 
+House had unanimously passed Article 11.073 specifically
+to allow “challenges to convictions that were based on dis-
+proven or incomplete science,” and that they were “dis­
+mayed to learn that this law has not been applied as in­
+tended and has not been a pathway to relief—or even a new 
+trial—for people like Mr. Roberson.”  Ibid. Brian Wharton, 
+the lead detective on Roberson’s case, likewise stated that 
+he believed Roberson to be innocent and that clemency 
+would be appropriate. Id., at 549a. Notwithstanding these 
+statements, the Board of Pardons and Paroles declined to 
+recommend clemency. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+ 
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+ 
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+ 
+ 
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+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+ROBERSON v. TEXAS 
+Statement of SOTOMAYOR, J. 
+Before issuing its opinion in Roark, the TCCA again de­
+nied relief to Roberson without opinion.  In a concurrence, 
+Justice Yeary maintained that Roberson’s case had not de­
+pended exclusively on shaken-baby syndrome evidence be­
+cause it had also involved evidence of blunt force impacts, 
+suggesting Roberson could have beaten Nikki to death.  Ex 
+parte Roberson, Nos. WR–63,081–03, 04 (Tex. Crim. App.
+Oct. 10, 2024) (Yeary, J., concurring in denial of suggestion 
+for reconsideration).
+After the TCCA issued Roark, Roberson filed a fourth 
+post-conviction petition in light of the TCCA’s decision, il­
+lustrating in detail that the testimony as to shaken-baby 
+syndrome in Roark had been nearly indistinguishable from
+the testimony in his case. Addressing Justice Yeary’s con­
+currence, Roberson pointed out that the CAT scans taken 
+directly after Nikki’s admission to the emergency room 
+showed only minimal subdural bleeding, suggesting that
+the blunt impact evidence on which Justice Yeary relied
+could well have been caused by Nikki’s subsequent brain 
+surgery, rather than by any injuries she suffered at home. 
+By a 5-4 vote, the TCCA again denied relief. 
+II 
+Current postconviction remedies often fail to correct con­
+victions “secured by what we now know was faulty science.” 
+McCrory v. Alabama, 603 U. S. ___, slip. op., at 1 (2024) 
+(statement of JUSTICE SOTOMAYOR respecting the denial of
+certiorari). This case is emblematic of that problem.  To its 
+credit, Texas has “led the way in forensic science reform in
+criminal procedure,” including by passing the statute that 
+allowed Roberson to challenge his conviction based on 
+changes in forensic science that seriously undermined the 
+integrity of his criminal trial.  Id., at 11. Tragically, that 
+statute did not help Roberson in this case.
+Roberson now seeks a stay of execution with this Court. 
+Few cases more urgently call for such a remedy than one 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+9 
+Cite as: 604 U. S. ____ (2024) 
+Statement of SOTOMAYOR, J. 
+where the accused has made a serious showing of actual in­
+nocence, as Roberson has here. Yet this Court can grant a
+stay only if Roberson can show a “significant possibility of 
+success on the merits” of a federal claim. 
+Hill v. 
+McDonough, 547 U. S. 573, 584 (2006).  Roberson did not 
+bring federal claims before the TCCA. Instead, he relied 
+exclusively on Texas’s Article 11.073.  Before this Court, 
+Roberson’s only federal challenge is to the TCCA’s practice
+of issuing “boilerplate opinions dismissing subsequent ha­
+beas petitions for purported failure to satisfy” Texas’s pro­
+cedural requirements in habeas cases. Appl. 6. This Court 
+has held, however, that it has “no power to tell state courts
+how they must write their opinions.”  Coleman v. Thomp­
+son, 501 U. S. 722, 739 (1991).
+Nevertheless, it is notable that the TCCA’s decisions in 
+this case do not address the whole of Roberson’s evidence of 
+actual innocence. Justice Yeary stated that shaken-baby 
+syndrome was not dispositive at Roberson’s trial because
+the State introduced evidence of bruising and “multiple im­
+pacts to Nikki’s head.”  Ex parte Roberson, Nos. WR– 
+63,081–03, 04, at 2 (Yeary, J., concurring in denial of sug­
+gestion for reconsideration). Yet as Roberson explained to
+the TCCA, the record reveals that shaken-baby syndrome
+was the prosecution’s core theory throughout the trial.  The 
+evidence of bruising to Nikki’s head does not change that, 
+for two reasons.  First, no court has yet considered the evi­
+dence suggesting that the “areas of dense hemorrhage” dis­
+covered during Nikki’s autopsy, which the examiner took to 
+be signs of blunt force impact, in fact resulted from Nikki’s 
+subsequent brain surgery.  As already explained, several
+experts concluded that CAT scans taken shortly after
+Nikki’s admission to the hospital showed only minimal sub­
+dural bleeding. Second, the TCCA previously affirmed the 
+habeas court’s factual finding that “Dr. Janet Squires . . . 
+clearly stated [at trial] that Nikki’s injuries were unlikely to 
+have been caused by an impact alone,” but rather were 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+10 
+ROBERSON v. TEXAS 
+Statement of SOTOMAYOR, J. 
+caused by shaking and a subsequent impact on a surface
+such as a mattress. App. 173a (emphases added).  Thus, 
+the Texas courts themselves determined that the State’s ex­
+pert had disavowed a beating or impact-only theory of death
+at trial. 
+Under these circumstances, a stay permitting examina­
+tion of Roberson’s credible claims of actual innocence is im­
+perative; yet this Court is unable to grant it.  That means 
+only one avenue for relief remains open: an executive re­
+prieve. In Texas, as in virtually every other State and the 
+federal government, “[t]he Executive has the power to exer­
+cise discretion to grant clemency and affect sentences at
+any stage after an individual is convicted[.]” Vandyke v. 
+State, 538 S. W. 3d 561, 581 (Tex. Ct. Crim. App. 2017).
+Preventing the execution of one who is actually innocent by
+means of a review “unhampered  by legal technicalities” is 
+a core historical purpose of the executive power to grant 
+pardons or reprieves. 
+Christen Jensen, The Pardoning 
+Power in the American States 49 (1922); see also Herrera v. 
+Collins, 506 U. S. 390, 417 (1993) (“History shows that the 
+traditional remedy for claims of innocence based on new ev­
+idence, discovered too late in the day to file a new trial mo­
+tion, has been executive clemency”); Graham v. Texas Bd. 
+of Pardons and Paroles, 913 S. W. 2d 745, 748 (Tex. Ct.
+Crim. App. 1996) (same).  An executive reprieve of thirty 
+days would provide the Texas Board of Pardons and Paroles 
+with an opportunity to reconsider the evidence of Rob­
+erson’s actual innocence.  That could prevent a miscarriage 
+of justice from occurring: executing a man who has raised 
+credible evidence of actual innocence. 
diff --git a/corpus/law/text/5766857bb3c84297.txt b/corpus/law/text/5766857bb3c84297.txt
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+Dugenets A.S. Administrative liability: features of legal relations involving correctional agencies
+
+The subject of the research is the modern administrative law and administrative procedural doctrine shaping the view of the contents and nature of the legal relationship of administrative liability involving correctional agencies. The purpose of the article is to confirm or disprove the hypothesis about significant features of legal relations of administrative liability arising, developing and terminating in the field of execution of criminal penalties. The methodology includes systematic analysis of legal academic literature, interpretation of Russian legislation on administrative offences. The main results. The static (universal for all law enforcement agencies) structure of the institution of administrative liability acquires its qualitative originality in the process of its practical implementation in the law enforcement activities of the relevant bodies and officials authorized by the state to bring to administrative responsibility through appropriate legal relations. The main part of the legal relations of administrative responsibility that develop in the activities of correctional institutions and pre-trial detention centers are of a security nature. These relations are primarily aimed not at implementing the main tasks of the legislation on administrative responsibility, but at achieving the basic goal of the func- tioning of penitentiary institutions, i.e. ensuring the public safety of objects of the Federal Penitentiary Service of Russia. Identification and proper procedural registration of the fact of an administrative offense will be the basis for the emergence of the corresponding protective legal relationship. The authors make proposals aimed at improvement of normative regulation and practice of application of administrative coercive measures, enforced by employees of the Federal Penitentiary Service of Russia. It is necessary to radically change the approach to the administrative and jurisdictional practice of correctional agencies by expanding the application of administrative responsibility to convicted persons and persons held in pre-trial detention centers. Conclusions. Administrative liability relations involving correctional agencies have specific features. The application of such liability is aimed at maintaining the normal legal regime and ensuring the public safety of the relevant penitentiary facility. Administrative responsibility should be applied by correctional agencies to citizens who are located on the territory of the penitentiary institution and pre-trial detention center, civil personnel of the penitentiary system and special agents. A doctrinal definition of the legal relationship of administrative liability involving correctional agencies is formulated by authors.
\ No newline at end of file
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+Corrigendum: Experiences of healthcare staff in forensic care facilities supporting sexual violence survivors, in Tshwane, South Africa
+
+No abstract available.
+
+http://www.curationis.org.za
+Open Access
+Curationis 
+ISSN: (Online) 2223-6279, (Print) 0379-8577
+Page 1 of 1
+Correction
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Authors:
+Moreoagae B. Randa1 
+Julie McGarry2 
+Affiliations:
+1Department of Public 
+Health, Faculty of Health 
+Care Sciences, Sefako 
+Makgatho Health Sciences 
+University, Pretoria, 
+South Africa
+2Health Sciences School, 
+University of Sheffield and 
+Sheffield Teaching Hospitals 
+NHS Foundation Trust, 
+Sheffield, United Kingdom
+Corresponding author:
+Moreoagae Bertha, 
+moreoagae.randa@smu.ac.za
+Date: 
+Published: 13 Feb. 2024 
+How to cite this correction: 
+Randa, M.B. & McGarry, J., 
+2024, ‘Corrigendum: 
+Experiences of healthcare 
+staff in forensic care facilities 
+supporting sexual violence 
+survivors, in Tshwane, South 
+Africa’, Curationis 47(1), 
+a2591. https://doi.
+org/10.4102/curationis.
+v47i1.2591
+Copyright:
+© 2024. The Authors. 
+Licensee: AOSIS. This work 
+is licensed under the 
+Creative Commons 
+Attribution License.
+In the published article, Randa, M.B. & McGarry, J., 2023, ‘Experiences of healthcare staff in 
+forensic care facilities supporting sexual violence survivors, in Tshwane, South Africa’, Curationis 
+46(1), a2374. https://doi.org/10.4102/curationis.v46i1.2374, the authors neglected to include the 
+funder South African Medical Research Council, SIR:058, to Randa MB. 
+The authors apologise for this error. The correction does not change the study’s findings of 
+significance or overall interpretation of the study’s results or the scientific conclusions of the 
+article in any way.
+Corrigendum: Experiences of healthcare staff in forensic 
+care facilities supporting sexual violence survivors, 
+in Tshwane, South Africa
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Note: DOI of original article published: https://doi.org/10.4102/curationis.v46i1.2374 
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+Law, language, and knowledge: Legal transplants from a cultural perspective
+
+Abstract In this Article, I have analyzed the philosophical grounds on which stands the conception of law implied in legal transplants. On the one hand, behind the idea of legal transplants lurks the misleading assumption that two different legal cultures share common epistemological accounts of what is meant by law; on the other, the idea that a certain legal institution verbally framed may be exported to another culture and touch off similar interpretations and conceptual performances reflects, at its core, a conception of language based on an isomorphic correspondence between legal words and the meanings those words are to stand for. My goal has been to critically expose the philosophical backdrop that lies behind the conception of law implied in the idea of a legal transplant with an eye to the cultural perspective. To this end, I have availed myself of different but convergent perspectives gathered from Wittgenstein’s pragmatic philosophy of language, Geertz’s cultural anthropology, Eco’s semiology, Harris’ integrational epistemology, and Rosen’s cultural theory of law, as a methodological strategy to spotlight different facets of the problem in three dimensions: Language, knowledge, and law.
\ No newline at end of file
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+PRELIMINARY PRINT 
+Volume 606 U. S. Part 1 
+Pages 226–258 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 20, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+226 
+OCTOBER TERM, 2024 
+Syllabus 
+FOOD AND DRUG ADMINISTRATION et al. v. R. J. 
+REYNOLDS VAPOR CO. et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 23–1187. Argued January 21, 2025—Decided June 20, 2025 
+The Family Smoking Prevention and Tobacco Control Act (TCA) requires 
+manufacturers to apply for and receive approval from the Food and 
+Drug Administration (FDA) before marketing any “new tobacco prod­
+uct.” 21 U. S. C. § 387j. In 2016, the FDA decided that e-cigarettes 
+and related products were new tobacco products subject to the TCA. 
+Given the size of the existing e-cigarette market, the FDA announced 
+that it would defer enforcement of the TCA against e-cigarette manu­
+facturers and retailers while the manufacturers sought FDA appro­
+val. 
+R. J. Reynolds Vapor Co. (RJR Vapor)—a manufacturer of 
+e-cigarettes—sought FDA approval to continue marketing its popular 
+Vuse Alto products. The FDA denied the applications, fnding that 
+RJR Vapor had failed to demonstrate that marketing Vuse Alto prod­
+ucts would be “appropriate for the protection of the public health” as 
+required by the TCA. § 387j(c)(2)(A). The FDA's order sounded the 
+death knell for a signifcant portion of the e-cigarette market, and RJR 
+Vapor sought to challenge it. 
+The TCA provides that “any person adversely affected” by an FDA 
+denial order can petition for judicial review in either the D. C. Circuit 
+or “the circuit in which such person resides or has their principal place 
+of business.” § 387l(a)(1). Had RJR Vapor sought judicial review on 
+its own, it could have fled a petition in the D. C. Circuit (the statutory 
+default) or the Fourth Circuit (which includes North Carolina, RJR Va-
+por's state of incorporation and principal place of business). RJR Vapor 
+instead combined forces with a Texas-based retailer and a Mississippi-
+based trade association of retailers to challenge the FDA's denial order 
+in the Fifth Circuit (which includes both Texas and Mississippi). In 
+response, the FDA asked the court to either dismiss the joint petition 
+for lack of venue or transfer it to the D. C. Circuit or Fourth Circuit. 
+The FDA argued that only a disappointed applicant—in this case, RJR 
+Vapor—is “adversely affected” by an FDA denial order within the 
+meaning of the TCA. Because the retailers had no right to seek review, 
+the FDA argued, the petition had no basis for being in the Fifth Circuit. 
+A divided Fifth Circuit panel concluded venue was proper and denied 
+the FDA's motion. 
+
+Cite as: 606 U. S. 226 (2025) 
+227 
+Syllabus 
+Held: Retailers who would sell a new tobacco product if not for the FDA's 
+denial order may seek judicial review of that order under § 387l(a)(1). 
+Pp. 232–241. 
+(a) To invoke a statutory cause of action, a plaintiff must be within 
+the “zone of interests” that the statute protects. Lexmark Int'l, Inc. 
+v. Static Control Components, Inc., 572 U. S. 118, 129. That means a 
+plaintiff must belong to the class of persons to which the statute grants 
+a right to sue, which under the TCA is “any person adversely affected” 
+by the FDA's “denial.” § 387l(a)(1). 
+“Adversely affected” (and its variations like “adversely affected or 
+aggrieved”) is a term of art with a “long history in federal administra­
+tive law.” Director, Offce of Workers' Compensation Programs v. 
+Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 126. Many 
+statutes use the term, most notably the Administrative Procedure Act 
+(APA), which entitles anyone “adversely affected or aggrieved by 
+agency action within the meaning of a relevant statute . . . to judicial 
+review.” 5 U. S. C. § 702. The Court has interpreted “adversely af­
+fected” broadly, as covering anyone even “arguably within the zone of 
+interests to be protected or regulated by the statute . . . in question.” 
+Association of Data Processing Service Organizations, Inc. v. Camp, 
+397 U. S. 150, 153 (emphasis added). 
+The FDA insists that the capacious understanding of “adversely af­
+fected” is unique to the APA, and that other statutes require a person 
+to “actually”—not “arguably”—fall within the statute's zone of interests. 
+And, as the FDA sees it, under the TCA the only person actually ag­
+grieved by the denial of permission to market a tobacco product is the 
+one with the closest relationship to the application—the applicant. But 
+the Court has not drawn the distinction the FDA proposes. Instead, 
+the Court has borrowed from its APA cases, including their broad for­
+mulation of the zone-of-interests test, when it has interpreted variations 
+of the phrase “adversely affected or aggrieved” in other statutes. See, 
+e. g., Bank of America Corp. v. Miami, 581 U. S. 189, 193 (interpreting 
+“aggrieved person” in the Fair Housing Act); Thompson v. North Amer­
+ican Stainless, LP, 562 U. S. 170, 177 (interpreting “person claiming to 
+be aggrieved” in Title VII); Newport News, 514 U. S., at 123 (interpret­
+ing “person adversely affected or aggrieved” in the Longshore and Har­
+bor Workers' Compensation Act). Taken together, these cases refect a 
+presumption that “adversely affected” carries the same meaning outside 
+the APA as in it. 
+The Court interprets “adversely affected” in the TCA against this 
+backdrop. Echoing the APA, the TCA provides that “any person ad­
+versely affected by [the FDA's] denial” may petition for judicial review. 
+§ 387l(a)(1). The retailers ft the bill. If the FDA denies an applica­
+Page Proof Pending Publication
+
+228 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Syllabus 
+tion, the retailers lose the opportunity to proft from the sale of the new 
+tobacco product—or, if they sell the product anyway, risk imprisonment 
+and other sanctions. See §§ 331, 333(a), 387b(6)(A), 387j(a)–(c). Ac­
+cordingly, the retailers are “adversely affected” by a denial order and 
+are therefore proper petitioners under § 387l(a)(1). Pp. 232–236. 
+(b) The FDA argues that the TCA's text and structure refect Con­
+gress's choice to offer judicial review only to manufacturers denied per­
+mission to market a tobacco product. The FDA's arguments, which 
+focus almost entirely on § 387j, cannot be squared with § 387l(a)(1)—the 
+provision that creates the cause of action. Start with the textual oddity 
+of using the phrase “any person adversely affected” to describe a cause 
+of action that only one person—the applicant manufacturer—could use. 
+Congress's use of “any” suggests that a denial order can adversely affect 
+multiple persons. 
+Even without the word “any,” the phrase “person adversely affected” 
+suggests an intent to cover more than one party. If Congress intended 
+to convey the FDA's reading, it would more naturally have said “appli­
+cant.” And there is “no basis in text or prior practice” for limiting 
+“person adversely affected” to mean “the applicant.” Cf. Thompson, 
+562 U. S. 170 (rejecting analogous argument that Title VII's use of “per­
+son claiming to be aggrieved” refers to a single person). Congress 
+knows how to limit the scope of a cause of action—in fact, it did so 
+elsewhere in the TCA. When the FDA withdraws an existing approval 
+of an application to market a new tobacco product, only the “holder 
+of [the] application” may challenge the withdrawal order. § 387j(d)(2). 
+Congress's use of materially different terms in the TCA—“holder of 
+[the] application” in § 387j(d)(2) and “any person adversely affected” 
+in §387l(a)(1)—raises the presumption that the different terms mean 
+different things. This principle is fatal to the FDA's reading of 
+§ 387l(a)(1). The FDA's other structural and policy arguments likewise 
+cannot be squared with Congress's use of the phrase “any person ad­
+versely affected.” 
+The retailers had the right to petition for review under the TCA, and 
+the Fifth Circuit denied the FDA's motion to dismiss or transfer because 
+it correctly concluded that at least one proper petitioner had venue. 
+Pp. 236–240. 
+(c) The FDA now argues that each petitioner in a joint petition for 
+review must independently establish venue. The FDA did not make 
+that argument in the Fifth Circuit. The Court rarely addresses an ar­
+gument raised frst to the Court, see OBB Personenverkehr AG v. 
+Sachs, 577 U. S. 27, 38, and prudence counsels against doing so here. 
+Pp. 240–241. 
+Affrmed and remanded. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+229 
+Opinion of the Court 
+Barrett, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined. 
+Jackson, J., fled a dissenting opinion, in which Sotomayor, J., joined, 
+post, p. 241. 
+Vivek Suri argued the cause for petitioners. With him on 
+the briefs were Solicitor General Prelogar, Principal Dep­
+uty Assistant Attorney General Boynton, Deputy Solicitor 
+General Gannon, Joshua M. Koppel, Catherine Padhi, Sam­
+uel R. Bagenstos, and Wendy S. Vicente. 
+Ryan J. Watson argued the cause for respondents. With 
+him on the brief were Noel J. Francisco, Christian G. Ver­
+gonis, Andrew J. M. Bentz, Charles E. T. Roberts, and An­
+drew J. Clopton.* 
+Justice Barrett delivered the opinion of the Court. 
+The Family Smoking Prevention and Tobacco Control Act 
+(TCA) requires manufacturers to apply for and receive ap­
+proval from the Food and Drug Administration (FDA) before 
+marketing any “new tobacco product.” 123 Stat. 1807, 21 
+U. S. C. § 387j. Companies that manufacture or sell new to­
+bacco products without the FDA's approval face signifcant 
+penalties. See §§ 331, 333(a), 387b(6)(A), 387j(a)–(c). If the 
+FDA denies an application, the TCA authorizes “any person 
+adversely affected” by the denial order to petition for judicial 
+*William B. Schultz, Andrew N. Goldfarb, and Dennis A. Henigan fled 
+a brief for Public Health Groups et al. as amici curiae urging reversal. 
+Briefs of amici curiae urging affrmance were fled for the American 
+Center for Law and Justice by Jordan Sekulow, Donn Parsons, and Ben­
+jamin P. Sisney; for the Atlantic Legal Foundation by Lawrence S. Ebner; 
+for Electronic Nicotine Delivery System Trade Associations et al. by Eric 
+P. Gotting and Azim Chowdhury; for Foreign Ends Manufacturers et al. 
+by Eric N. Heyer, Joseph A. Smith, James C. Fraser, and Anna Stres­
+senger; and for Vaping Industry Stakeholders by J. Gregory Troutman. 
+Briefs of amici curiae were fled for the Chamber of Commerce of the 
+United States of America by Christopher G. Michel, Jennifer B. Dickey, 
+and David A. Nabors; and for the New Civil Liberties Alliance by Andrew 
+J. Morris, Daniel Kelly, and Mark Chenoweth. 
+Page Proof Pending Publication
+
+230 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+review under the standards of the Administrative Procedure 
+Act (APA). §§ 387l(a)–(b). We must decide whether retail­
+ers who would sell a new tobacco product if not for the FDA's 
+denial order have the right to seek judicial review. We hold 
+that they do. 
+I 
+When modern e-cigarettes made their American debut, the 
+FDA did not treat them as “new tobacco products” for pur­
+poses of the TCA. See FDA v. Wages & White Lion Invest­
+ments, LLC, 604 U. S. 542, 553–556 (2025). They could 
+therefore be sold without the FDA's approval, and over the 
+years, a large market developed. See ibid. But in 2016, 
+the FDA changed direction: It announced that e-cigarettes 
+and related products are subject to the TCA after all. 81 
+Fed. Reg. 29028–29044 (2016). Given the size of the 
+e-cigarette market, pulling products from the shelves while 
+manufacturers sought “premarket” authorization to sell 
+them would have been disruptive. To mitigate the disrup­
+tion, the FDA announced that it would defer enforcement of 
+the TCA against e-cigarette manufacturers and retailers 
+while the manufacturers sought FDA approval. 
+Id., at 
+29009–29015. 
+R. J. Reynolds Vapor Co. (RJR Vapor) manufactures e-
+cigarettes, including the popular menthol- and mixed-berry­
+favored Vuse Alto products. It timely applied for authori­
+zation to market its Vuse Alto products, but three years 
+later, the FDA denied the applications. According to the 
+FDA, RJR Vapor had failed to demonstrate that marketing 
+Vuse Alto products would be “appropriate for the protection 
+of the public health.” § 387j(c)(2)(A). This order sounded 
+the death knell for a signifcant portion of the e-cigarette 
+market. 
+When the FDA denies premarket authorization, “any per­
+son adversely affected” by the denial may petition for judi­
+cial review in either the D. C. Circuit or “the circuit in which 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+231 
+Opinion of the Court 
+such person resides or has their principal place of business.” 
+§ 387l(a)(1). RJR Vapor is incorporated and has its principal 
+place of business in North Carolina; thus, had it fled alone, 
+its options were the D. C. Circuit and the Fourth Circuit. 
+Rather than fling alone, however, RJR Vapor combined 
+forces with retailers of Vuse Alto products: Avail Vapor 
+Texas, L.L.C., a Texas company that owns and operates the 
+“Vuse Inspiration Store” in Houston; the Mississippi Petro­
+leum Marketers and Convenience Stores Association, a trade 
+association of gas stations and convenience stores; and an­
+other North Carolina-based RJR corporate affliate that sold 
+Vuse products online. RJR Vapor and the retailers fled a 
+joint petition in the Fifth Circuit, where Avail Vapor and the 
+trade association are located. 
+The FDA asked the court to either dismiss the joint peti­
+tion for lack of venue or transfer it to the D. C. Circuit or 
+Fourth Circuit. It pointed out that under the TCA, only 
+those “adversely affected” by the denial of premarket au­
+thorization may petition for review of the FDA's order. And 
+in the FDA's view, only a disappointed applicant—in this 
+case, RJR Vapor—is “adversely affected” within the mean­
+ing of the TCA. Because the retailers had no right to seek 
+review, the FDA argued, the petition had no basis for being 
+in the Fifth Circuit. RJR Vapor could fle in the D. C. Cir­
+cuit (the default) or the Fourth Circuit (its home). 
+A divided Fifth Circuit panel denied the FDA's motion and 
+concluded that venue was proper over the joint petition to 
+review the FDA's denial order.1 
+The FDA sought this 
+Court's review of the Fifth Circuit's order, and we granted 
+certiorari.2 
+603 U. S. 948 (2024). 
+1 In a separate order, the Fifth Circuit also stayed the FDA's denial 
+order. The Fifth Circuit's stay order is not before us. 
+2 The respondents argue that we lack jurisdiction to decide this case. 
+Outside of limited circumstances, Article III allows this Court to exercise 
+only “appellate jurisdiction,” not “original jurisdiction.” Marbury v. 
+Page Proof Pending Publication
+
+232 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+II 
+A 
+To invoke a statutory cause of action, a plaintiff must be 
+within the “zone of interests” that the statute protects. 
+Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 
+U. S. 118, 129 (2014).3 
+Put differently, a plaintiff must be­
+long to the class of persons to whom the statute grants a 
+right to sue. Id., at 127. Under the TCA, the relevant class 
+is “any person adversely affected” by the FDA's “denial.” 
+21 U. S. C. §387l(a)(1). 
+“Adversely affected” (and its variations like “adversely af­
+fected or aggrieved”) is a term of art with a “long history 
+in federal administrative law.” Director, Offce of Workers' 
+Compensation Programs v. Newport News Shipbuilding & 
+Dry Dock Co., 514 U. S. 122, 126 (1995); see also Brief for 
+New Civil Liberties Alliance as Amicus Curiae 26–27 (claim­
+ing that 124 statutes use variations of “adversely affected”). 
+Most notably, the term appears in the APA, which entitles 
+anyone “adversely affected or aggrieved by agency action 
+within the meaning of a relevant statute . . . to judicial re­
+view.” 4 
+5 U. S. C. § 702. We have interpreted “adversely 
+Madison, 1 Cranch 137, 175 (1803). The respondents argue that we are 
+unconstitutionally exercising original jurisdiction because the Court of 
+Appeals has not yet adjudicated the merits of their petition. This argu­
+ment is clever but misguided. We are reviewing the Fifth Circuit's order 
+denying a motion to transfer venue. So, as with any other case in which 
+we review a lower court order, we are exercising appellate jurisdiction 
+over that order—not deciding the motion in the frst instance. 
+3 Though we once applied the zone-of-interests test as part of a “prudential 
+standing” doctrine, we have abandoned that label as “misleading.” Bank 
+of America Corp. v. Miami, 581 U. S. 189, 196–197 (2017). As we have ex­
+plained, the question is not one of standing, but of “whether the statute 
+grants the plaintiff the cause of action that he asserts.” Ibid. The zone-
+of-interests test is part of the ordinary statutory interpretation analysis 
+that courts employ to answer that question. Lexmark, 572 U. S., at 127. 
+4 Because the APA provides an omnibus cause of action for violations of 
+other statutes, the “relevant statute” for an APA zone-of-interests analysis 
+is not the APA itself, but the statute under which the relevant agency 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 226 (2025) 
+233 
+Opinion of the Court 
+affected” broadly, as covering anyone even “arguably within 
+the zone of interests to be protected or regulated by the 
+statute . . . in question.” Association of Data Processing 
+Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 
+(1970) (emphasis added). A plaintiff may sue under the APA 
+unless her “interests are so marginally related to or incon­
+sistent with the purposes implicit in the statute that it can­
+not reasonably be assumed that Congress intended to permit 
+the suit.” Clarke v. Securities Industry Assn., 479 U. S. 
+388, 399 (1987). The inquiry is “not especially demanding.” 
+Lexmark, 572 U. S., at 130 (internal quotation marks 
+omitted). 
+The FDA, however, attempts to ratchet up the standard. 
+It insists that the capacious understanding of “adversely af­
+fected” is unique to the APA, whose “omnibus judicial-review 
+provision . . . permits suit for violations of numerous statutes 
+of varying character that do not themselves include causes 
+of action for judicial review.” Ibid.; see also, e. g., Bennett 
+v. Spear, 520 U. S. 154, 163 (1997). For statutes other than 
+the APA, the FDA argues, a person must “actually”—not 
+“arguably”—fall within the statute's zone of interests. 
+Brief for Petitioners 12–13. And as the FDA sees it, the 
+person actually aggrieved by the denial of permission to 
+market a tobacco product is the one with the closest relation­
+ship to the application—the applicant. 
+We have not drawn the distinction that the FDA proposes. 
+On the contrary, when we have interpreted variations of the 
+phrase “adversely affected or aggrieved” outside the context 
+of the APA, we have borrowed from our APA cases, includ­
+ing their broad formulation of the zone-of-interests test. 
+For instance, in Bank of America Corp. v. Miami, we inter­
+preted the Fair Housing Act's (FHA) cause of action—which 
+permits any “aggrieved person” to sue. 581 U. S. 189, 193 
+(2017); 42 U. S. C. § 3613(a)(1)(A). Citing our canonical artic­
+acted. See Association of Data Processing Service Organizations, Inc. 
+v. Camp, 397 U. S. 150, 153 (1970). 
+
+Page Proof Pending Publication
+234 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+ulation of the APA's broad zone-of-interests test in Data 
+Processing, we held that Miami could sue under the FHA 
+because the city “arguably” fell within the interests that the 
+FHA sought to protect. 581 U. S., at 197–201. 
+Thompson v. North American Stainless, LP, runs in the 
+same vein. 562 U. S. 170 (2011). There, we interpreted the 
+scope of Title VII's cause of action, which permits a “person 
+claiming to be aggrieved” to sue. 42 U. S. C. §2000e–5(f)(1). 
+We held that this cause of action is neither so narrow as to 
+include only the person claiming to be the victim of discrimi­
+nation nor so broad as to encompass every person with Arti­
+cle III standing. Thompson, 562 U. S., at 177. Instead, 
+interpreting the term “aggrieved” consistently with its 
+“common usage” in the APA context, we held that Title VII 
+authorized suit by “any plaintiff with an interest `arguably 
+[sought] to be protected by the statute.' ” Id., at 177–178 
+(quoting National Credit Union Admin. v. First Nat. 
+Bank & Trust Co., 522 U. S. 479, 495 (1998)). Under this 
+test, an employee who had allegedly been fred in retaliation 
+for the protected activity of his fancée (who was also his 
+co-worker) was “aggrieved” and could sue. Thompson, 562 
+U. S., at 178. 
+Finally, in Newport News, we had to decide whether the 
+Director of the Offce of Workers' Compensation Programs 
+in the Department of Labor was “[a] person adversely af­
+fected or aggrieved by a fnal order” under the Longshore 
+and Harbor Workers' Compensation Act. 514 U. S., at 123; 
+44 Stat. 1436, 33 U. S. C. § 921(c). To answer this question, 
+we considered the history of this “term of art” across admin­
+istrative law, including our canonical interpretation of it 
+under the APA: “[A] litigant [must] show . . . that the interest 
+he seeks to vindicate is arguably within the `zone of interests 
+to be protected or regulated by the statute.' ” Newport 
+News, 514 U. S., at 126–127 (quoting Data Processing, 
+397 U. S., at 153; emphasis added). Considering the “long 
+lineage” of this language, we found it telling that neither 
+
+Cite as: 606 U. S. 226 (2025) 
+235 
+Opinion of the Court 
+we nor any court of appeals had ever held, under the APA 
+or otherwise, that “an agency, in its regulatory or policy­
+making capacity, is `adversely affected' or `aggrieved.' ” 
+Newport News, 514 U. S., at 127. 
+Taken together, these cases refect a presumption that the 
+term “adversely affected” carries the same meaning outside 
+the APA as in it.5 
+The Fair Housing Act, Title VII, and 
+the Longshore and Harbor Workers' Compensation Act have 
+different histories, scopes, and purposes. Yet in interpret­
+ing each statute, we borrowed principles from cases describ­
+ing the APA's cause of action. The FDA cannot explain 
+why—repeatedly and without regard for their differing stat­
+utory purposes—we have interpreted other causes of action 
+with variations of “adversely affected or aggrieved” consist­
+ently with the APA's cause of action.6 
+We interpret the phrase “adversely affected” in the TCA 
+against this backdrop. Echoing the APA, the TCA provides 
+that “any person adversely affected by [the FDA's] denial” 
+may petition for judicial review. 21 U. S. C. § 387l(a)(1); see 
+5 The FDA invokes Bennett and Lexmark for support, but the statutes 
+at issue in those cases did not use variations of the phrase “adversely 
+affected” to create a cause of action. See 16 U. S. C. § 1540(g) (Bennett v. 
+Spear, 520 U. S. 154 (1997)); 15 U. S. C. § 1125(a)(1) (Lexmark Int'l, Inc. v. 
+Static Control Components, Inc., 572 U. S. 118 (2014)). So neither case 
+sheds light on whether “adversely affected” has a unique meaning in the 
+context of the APA. 
+6 The FDA notes that the phrase “adversely affected or aggrieved” pre­
+dates the APA. Director, Offce of Workers' Compensation Programs v. 
+Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 126 (1995). 
+But the FDA has not shown that the pre-APA defnition of “adversely 
+affected or aggrieved” was meaningfully narrower than the version of the 
+zone-of-interests test articulated in modern APA cases, not to mention 
+Bank of America and Thompson v. North American Stainless, LP, 562 
+U. S. 170 (2011). Even our pre-APA construction of “adversely affected” 
+was quite broad. See, e. g., FCC v. Sanders Brothers Radio Station, 309 
+U. S. 470, 475–477 (1940) (holding that competitors of FCC licensees are 
+“adversely affected” by an order granting a license within the meaning of 
+§ 402(b)(2) of the Communications Act of 1934). 
+Page Proof Pending Publication
+
+236 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+also 5 U. S. C. § 702 (“[a] person . . . adversely affected or 
+aggrieved by agency action”). The TCA's cause of action 
+thus extends to any petitioner “with an interest `arguably 
+sought to be protected by the statute.' ” Thompson, 562 
+U. S., at 178 (quoting National Credit Union Admin., 522 
+U. S., at 495; alteration omitted). The retailers ft the bill. 
+If the FDA denies an application, the retailers, like the man­
+ufacturer, lose the opportunity to proft from the sale of the 
+new tobacco product—or, if they sell the product anyway, 
+risk imprisonment and other sanctions. See 21 U. S. C. 
+§§ 331, 333(a), 387b(6)(A), 387j(a)–(c). Given this signifcant, 
+direct impact on retailers, their interests are not “so margin­
+ally related to or inconsistent with the purposes implicit in 
+the statute that it cannot reasonably be assumed that Con­
+gress intended to permit the suit.” Clarke, 479 U. S., at 399. 
+Accordingly, the retailers are “adversely affected” by a de­
+nial order and are therefore proper petitioners under 
+§ 387l(a)(1).7 
+B 
+Resisting this conclusion, the FDA (followed by the dis­
+sent) argues that the TCA's text and structure refect Con­
+7 The dissent argues that the zone-of-interests inquiry turns exclusively 
+on § 387j(c), which governs the FDA's response to a marketing application. 
+See post, at 246 (opinion of Jackson, J.) This myopic approach is incon­
+sistent with Clarke v. Securities Industry Assn., which explains that the 
+zone-of-interests analysis must not “focu[s] too narrowly” on the basis for 
+the violation, but must also consider that provision “in the overall context” 
+of the relevant Act. 479 U. S. 388, 401 (1987). Here, the relevant context 
+includes not only the application process outlined in § 387j(c), but also the 
+legal consequences if that process ends with a denial order—namely, the 
+threat of criminal penalties for retailers who sell the denied products. 
+According to the dissent, this threat is irrelevant because § 387j(c) does 
+not enable the retailers to “weigh in on” the FDA's consideration of an 
+application for premarket authorization. Post, at 248, n. 1 (opinion of 
+Jackson, J.). But the TCA does not authorize suit only for those permit­
+ted to “weigh in on” the agency's disposition of an application—it author­
+izes suit for those “adversely affected” by the denial of an application. 
+The retailers meet that description. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+237 
+Opinion of the Court 
+gress's choice to offer judicial review only to manufacturers 
+denied permission to market a tobacco product. The FDA 
+emphasizes that TCA applications result in an “order,” 
+§ 387j(c)(1)(A), and that “orders” may normally be challenged 
+only by the participants in the proceeding that led to the 
+order. It also asserts that other provisions of the statute 
+refect an overriding concern with the applicant manufac­
+turer: Only the manufacturer may ask the FDA to refer its 
+application to a scientifc committee, receive notice of a de­
+nial order, or receive a statement about why the application 
+was denied. §§ 387j(b)(2)(B), (e)(2), (c)(3). And, the FDA 
+observes, only the manufacturer is positioned to demonstrate 
+that a product is “appropriate for the protection of the public 
+health.” § 387j(c)(2)(A). Putting these provisions together, 
+the FDA says that the TCA is concerned exclusively with 
+the interests of the manufacturer. Retailers are outside the 
+TCA's zone of interests. 
+These arguments, which focus almost entirely on § 387j, 
+cannot be squared with § 387l(a)(1)—the provision that cre­
+ates the cause of action. Start with the textual oddity of 
+using the phrase “any person adversely affected” to describe 
+a cause of action that only one person—the applicant manu­
+facturer—could use. “Read naturally, the word `any' has an 
+expansive meaning, that is, `one or some indiscriminately of 
+whatever kind.' ” United States v. Gonzales, 520 U. S. 1, 5 
+(1997) (quoting Webster's Third New International Diction­
+ary 97 (1976)). Congress's use of “any” suggests that a 
+denial order can adversely affect multiple persons. 
+Even without the word “any,” the phrase “person ad­
+versely affected” suggests an intent to cover more than one 
+party. Thompson is probative. In that case, the respond­
+ent similarly argued that the phrase “person aggrieved” re­
+ferred to only the person who engaged in statutorily pro­
+tected activity. 562 U. S., at 177. We said that “[w]e know 
+of no other context in which the words carry this artifcially 
+narrow meaning, and if that is what Congress intended,” 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+238 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+then “it would more naturally have said `person claiming to 
+have been discriminated against' rather than `person claim­
+ing to be aggrieved.' ” Ibid. We saw “no basis in text or 
+prior practice for limiting the latter phrase” to the single 
+person who engaged in protected conduct. Ibid. So too 
+here. If Congress intended to convey the FDA's reading, it 
+would more naturally have said “applicant” rather than “per­
+son adversely affected.” And there is “no basis in text or 
+prior practice” for limiting “person adversely affected” to 
+mean “the applicant”—or, for that matter, the “party” with 
+whom the agency dealt. See NRC v. Texas, 605 U. S. 
+665, 675–676 (2025) (distinguishing between statutes that 
+grant a cause of action to a “party” aggrieved, as opposed to 
+the broader any “person” aggrieved). 
+The FDA tries to explain away the breadth of § 387l(a)(1) 
+by stressing that it applies not only to denial orders under 
+§ 387j(c), but also to regulations promulgated under § 387g. 
+See also post, at 251 (Jackson, J., dissenting). The provi­
+sion's breadth, the FDA says, accommodates the latter con­
+text: Regulations affect more than one person, even if a de­
+nial order affects only the applicant. So, the FDA stresses, 
+its interpretation does not read the phrase “any person” out 
+of the provision. Fair enough. But it does read the phrase 
+“an applicant” into the provision. Congress did not enact a 
+narrow cause of action for denial orders and a broader one 
+for regulations. Instead, it brought them under the same 
+umbrella, using the same language—“any person adversely 
+affected”—to cover both contexts. The FDA's spin on the 
+provision proposes to undo that choice. 
+Congress knows how to limit the scope of a cause of ac­
+tion—in fact, it did so elsewhere in the TCA. When the 
+FDA issues an order withdrawing an existing approval of an 
+application to market a new tobacco product, only the 
+“holder of [the] application” may challenge the order. 
+§ 387j(d)(2). The difference between “holder of [the] applica­
+tion” and “any person adversely affected” is conspicuous. 
+When Congress uses “one term in one place, and a materially 
+
+Cite as: 606 U. S. 226 (2025) 
+239 
+Opinion of the Court 
+different term in another, the presumption is that the differ­
+ent term denotes a different idea.” A. Scalia & B. Garner, 
+Reading Law 170 (2012); see also, e. g., Southwest Airlines 
+Co. v. Saxon, 596 U. S. 450, 457–458 (2022). That principle 
+is fatal to the FDA's reading of § 387l(a)(1). 
+The FDA tries to turn this liability into an asset. See 
+also post, at 249–250 (Jackson, J., dissenting). It argues 
+that Congress would not have allowed retailers to challenge 
+denial orders (in which they normally have no reliance inter­
+ests) but not withdrawal orders (in which they usually have 
+signifcant reliance interests). Yet Congress made this very 
+choice by using different language for the two types of chal­
+lenges. Plainly, the FDA wishes that Congress had written 
+the review provision differently. As we have explained be­
+fore, however, “[w]e do not ask whether in our judgment 
+Congress should have authorized” this lawsuit, “but whether 
+Congress in fact did so.” Lexmark, 572 U. S., at 128. 
+The FDA's other structural and policy arguments similarly 
+fail. See also post, at 246–248 (Jackson, J., dissenting). It 
+claims that § 387j's statutory structure suggests that only the 
+applicant has a protected stake in the application process. 
+In particular, it highlights the confdentiality protections, ar­
+guing that they could prevent a retailer from obtaining the 
+information necessary to mount a successful challenge. See 
+§ 387f(c) (applying protection to information obtained by the 
+FDA through § 387j's application process). Maybe—though 
+the confdentiality provisions did not frustrate this lawsuit. 
+In any event, § 387l(a)(1) asks whether a petitioner is “ad­
+versely affected” by the denial order, not whether a peti­
+tioner is the person best positioned to challenge a denial 
+order. If Congress had wanted only those with the most 
+information to be able to bring these challenges, it would 
+have said so.8 
+8 The FDA relies heavily on Block v. Community Nutrition Institute, 
+467 U. S. 340 (1984). See also post, at 252–254 (Jackson, J., dissenting). 
+But Block is readily distinguishable. The question in Block was whether 
+the Act at issue “preclude[d] judicial review” within the meaning of 5 
+Page Proof Pending Publication
+
+240 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Opinion of the Court 
+The retailers had the right to petition for review under 
+the TCA. Because Avail Vapor and the trade association 
+have their principal places of business in Texas and Missis­
+sippi, respectively, they could both fle in the Fifth Circuit. 
+So when it denied the FDA's motion to dismiss or transfer, 
+the Fifth Circuit correctly concluded that at least one proper 
+petitioner had venue. 
+III 
+In addition to contending that the retailers are not “ad­
+versely affected,” the FDA advances an argument in this 
+Court that it failed to make in the Fifth Circuit: It maintains 
+that each petitioner in a joint petition for review must in­
+dependently establish venue. RJR Vapor and the RJR-
+affliated retailer, standing alone, could not fle in the Fifth 
+Circuit. Thus, the FDA says, the Fifth Circuit must dismiss 
+the RJR petitions even if the other retailers may petition for 
+review there. 
+No court, including the Fifth Circuit in this case, has ana­
+lyzed whether every petitioner in a joint petition must inde­
+pendently satisfy the TCA's venue provisions. We rarely 
+address an argument raised for the frst time in this Court. 
+OBB Personenverkehr AG v. Sachs, 577 U. S. 27, 38 (2015). 
+In the ordinary course, “[p]rudence . . . dictates awaiting a 
+case in which the issue was fully litigated below, so that we 
+will have the beneft of developed arguments on both sides 
+and lower court opinions squarely addressing the question.” 
+U. S. C. § 701(a)(1), such that milk consumers could not invoke the APA's 
+omnibus cause of action to challenge the Secretary of Agriculture's milk 
+market orders. Block, 467 U. S., at 341, 345. We held that consumers 
+could not sue under the APA, primarily because the Act itself included a 
+separate cause of action enabling dairy handlers (and not consumers) to 
+seek judicial review of the orders after frst exhausting administrative 
+remedies. See id., at 345–347 (citing 7 U. S. C. § 608c(15)). Allowing con­
+sumers to sue under the APA would have frustrated that scheme. Block, 
+467 U. S., at 345–347. This case—which involves a single cause of action 
+and no administrative exhaustion requirement—is not analogous. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+241 
+Jackson, J., dissenting 
+Yee v. Escondido, 503 U. S. 519, 538 (1992). Prudence coun­
+sels that course here, because anything we say about the 
+TCA's venue provisions would inevitably inform debates 
+about similar statutes—including 28 U. S. C. § 1391(e)(1), the 
+general venue statute for lawsuits against the Government. 
+*
+*
+* 
+We affrm the Fifth Circuit's denial of the FDA's motion 
+and remand the case for further proceedings consistent with 
+this opinion. 
+It is so ordered. 
+Justice Jackson, with whom Justice Sotomayor joins, 
+dissenting. 
+The statute at issue in this case requires tobacco manufac­
+turers to receive permission from the Food and Drug Admin­
+istration (FDA) before new tobacco products may be mar­
+keted or sold. 21 U. S. C. § 387j. In deciding who falls 
+within the zone of interest of that statute, the Court largely 
+ignores this context. Instead, the Court directs all atten­
+tion to the language of the statute's cause of action—and 
+then essentially nullifes the zone-of-interest test by reduc­
+ing it to the near-meaningless proposition that anyone af­
+fected, or even arguably affected, by the FDA's marketing 
+denial can sue. 
+The actual zone-of-interest inquiry, however, requires us 
+to examine exactly whom Congress intended to protect 
+under the relevant statutory provisions. And, here, all the 
+usual tools of statutory interpretation point in the same di­
+rection: Congress established a detailed scheme for manufac­
+turers to obtain authorization to market new tobacco prod­
+ucts—a scheme within which retailers have no rights and 
+play no role—and, in the context of that scheme, Congress 
+provided a cause of action for the protection of the manu­
+facturers' statutorily created interests. Because nothing in 
+this statute suggests that Congress meant to authorize 
+Page Proof Pending Publication
+
+242 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+retailers to sue to challenge the FDA's denial of a manufac­
+turer's marketing application, much less bring that legal 
+challenge in a venue that is otherwise unavailable, I respect­
+fully dissent. 
+I 
+The Family Smoking Prevention and Tobacco Control Act 
+empowers the Secretary of Health and Human Services, act­
+ing through the FDA, to regulate tobacco products. See 21 
+U. S. C. §§ 387a, 393(d)(2). The Act expressly applies to 
+many tobacco products that were popular when the Act was 
+enacted in 2009, such as cigarettes. See § 387a(b). But rec­
+ognizing that markets evolve, Congress provided that the 
+Act would also apply to “any other tobacco products” that 
+the FDA “by regulation deems to be subject to” the Act. 
+Ibid. Within that covered-product category, the Tobacco 
+Control Act prohibits manufacturers from marketing without 
+FDA authorization any “new tobacco product,” defned as a 
+product not generally available on the market as of February 
+15, 2007. §§ 387j(a)(1), (a)(2)(A). The statute also prohibits 
+any retailer from selling a “new tobacco product” unless that 
+product has been authorized by the FDA. See §§ 387b(6) 
+(A), 331(a). 
+When a manufacturer seeks FDA authorization to market 
+a new tobacco product, it must submit an application to the 
+agency. See FDA v. Wages & White Lion Investments, 
+LLC, 604 U. S. 542, 551–552 (2025); § 387j(b). That applica­
+tion must include “full reports of all information” the manu­
+facturer is (or should be) aware of “concerning investigations 
+which have been made to show the health risks of” the prod­
+uct. § 387j(b)(1)(A). It must also include a list of the prod­
+uct's “components, ingredients, additives, and properties,” 
+along with a description of the manufacturing methods and 
+facilities. §§ 387j(b)(1)(B), (C). And the manufacturer must 
+produce any “samples of such tobacco product” that the 
+agency “may reasonably require.” § 387j(b)(1)(E). 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+243 
+Jackson, J., dissenting 
+“There are many reasons why the FDA may deny market­
+ing authorization to a `new tobacco product,' ” but it must do 
+so if the manufacturer fails to show “that the product `would 
+be appropriate for the protection of the public health.' ” Id., 
+at 552 (quoting § 387j(c)(2)(A)). Congress has thus placed 
+the burden on the applicant (the manufacturer) to persuade 
+the FDA that its product would help—not hurt—public 
+health. 
+If the agency denies a manufacturer's application for fail­
+ure to make this showing, or if the application is denied for 
+any other reason, the statute further authorizes judicial re­
+view of that FDA decision. The Act specifcally provides 
+that “any person adversely affected” by the FDA's denial 
+“may fle a petition for judicial review of such . . . denial 
+with the United States Court of Appeals for the District of 
+Columbia or for the circuit in which such person resides or 
+has their principal place of business.” § 387l(a)(1). 
+The question before us today is what “any person ad­
+versely affected” by the FDA's denial means in the context 
+of this statute. 
+II 
+A 
+“Read literally,” the “broad language” of the Tobacco Con­
+trol Act's judicial-review provision “might suggest that an 
+action is available to anyone who can satisfy the minimum 
+requirements of Article III.” Lexmark Int'l, Inc. v. Static 
+Control Components, Inc., 572 U. S. 118, 129 (2014). But, as 
+the majority acknowledges, this Court has not read this or 
+similar wording for all it is worth when interpreting causes 
+of action. See ante, at 232–233. In the administrative-law 
+context, we have long recognized that “adversely affected” 
+is a term of art that can be far more cabined than its literal 
+meaning suggests. Indeed, we have consistently eschewed 
+reading the “adversely affected” word formulation to apply 
+to anyone in the world who might be affected by an agency's 
+Page Proof Pending Publication
+
+244 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+action, and have instead interpreted this language to refer 
+“only to plaintiffs whose interests `fall within the zone of 
+interests protected by the law invoked.' ” Lexmark, 572 
+U. S., at 129 (quoting Allen v. Wright, 468 U. S. 737, 751 
+(1984)). 
+We call this the zone-of-interest test—and it is, by now, 
+well established. Simply stated, the test “is a guide for de­
+ciding whether . . . a particular plaintiff should be heard to 
+complain of a particular agency decision.” Clarke v. Securi­
+ties Industry Assn., 479 U. S. 388, 399 (1987). “The essen­
+tial inquiry is whether Congress `intended for [this particu­
+lar] class [of plaintiffs] to be relied upon to challenge agency 
+disregard of the law.' ” Ibid. (quoting Block v. Community 
+Nutrition Institute, 467 U. S. 340, 347 (1984); some alter­
+ations in original). We have also explained that, at bottom, 
+“the reviewability question turns on congressional intent, 
+and all indicators helpful in discerning that intent must be 
+weighed.” Clarke, 479 U. S., at 400. In short: “Whether a 
+plaintiff comes within `the “zone of interests” ' is an issue 
+that requires us to determine, using traditional tools of stat­
+utory interpretation, whether a legislatively conferred cause 
+of action encompasses a particular plaintiff's claim.” Lex-
+mark, 572 U. S., at 127. 
+Our decision in Lexmark illustrates how the zone-of­
+interest test works in practice. The statute at issue there 
+authorized a suit brought by “ `any person who believes that 
+he or she is likely to be damaged' by a defendant's false ad­
+vertising.” Id., at 129 (quoting 15 U. S. C. § 1125(a)(1)). 
+Applying the zone-of-interest test, we held that, despite the 
+statute's broad “any person” language, contextual clues—in­
+cluding the statute's expressed purpose—demonstrated that 
+Congress intended to permit suit only by persons who suf­
+fered a particular type of injury (specifcally, “an injury to a 
+commercial interest in reputation or sales”). 572 U. S., at 
+131–132. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+245 
+Jackson, J., dissenting 
+The Administrative Procedure Act (APA) is on the other 
+side of the spectrum of outcomes when the zone-of-interest 
+test is applied. We have long recognized that the APA's 
+judicial-review provision is particularly capacious. See 
+ante, at 233–234. Notably, we have observed that such 
+breadth is necessary in the context of that statute in order 
+to “preserv[e] the fexibility” of the APA's provisions, which 
+apply in a range of contexts. Lexmark, 572 U. S., at 130. 
+The majority accepts that the zone-of-interest test is the 
+proper legal framework for assessing the breadth of the 
+cause of action at issue. See ante, at 232. It also goes to 
+great lengths to emphasize that the zone-of-interest test op­
+erates identically across all statutes that permit aggrieved 
+persons to sue—be it the APA or a more specifc provision. 
+See ante, at 233–235. I wholeheartedly agree. Whatever 
+the underlying statute, our task is “to determine the mean­
+ing of the congressionally enacted provision creating a cause 
+of action,” which we do by “apply[ing] traditional principles 
+of statutory interpretation.” Lexmark, 572 U. S., at 128. 
+Sometimes, as with the APA, those contextual clues demon­
+strate a cause of action's breadth. Other times, as was the 
+case in Lexmark, those clues suggest a narrower scope. In 
+each case, the question is one of Congress's intent. 
+B 
+To properly discern congressional intent about the breadth 
+of a particular cause of action, it is crucial to know where to 
+look. And, unlike the majority's opinion here, our prece­
+dents do not merely look to the words of the cause-of-action 
+provision that prompted the need to inquire further about 
+what Congress intended. Doing so would be, of course, en­
+tirely circular. Instead, because the zone-of-interest test is 
+premised on the idea that interpreting a seemingly un­
+bounded cause of action requires exploration into what Con­
+gress wanted in the context of that particular statute, we 
+look to “the particular provision of law upon which the plain­
+Page Proof Pending Publication
+
+246 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+tiff relies” for his legal claim—that is, “ `the statutory provi­
+sion whose violation forms the legal basis for his complaint.' ” 
+Bennett v. Spear, 520 U. S. 154, 175–176 (1997) (quoting 
+Lujan v. National Wildlife Federation, 497 U. S. 871, 883 
+(1990); emphasis deleted). Although one would not know it 
+from reading the majority's opinion, this is blackletter law. 
+See, e. g., Clarke, 479 U. S., at 396–397; Air Courier Confer­
+ence v. Postal Workers, 498 U. S. 517, 523–524 (1991); Thomp­
+son v. North American Stainless, LP, 562 U. S. 170, 178 
+(2011). 
+Respondents here allege that the FDA improperly denied 
+a marketing application fled by R. J. Reynolds Vapor Co. 
+(RJR Vapor) in violation of 21 U. S. C. § 387j(c). So, it is that 
+statutory provision, not the cause of action itself, that is the 
+proper focus of the zone-of-interest inquiry. 
+Analyzing that provision (as the majority fails to do) re­
+veals that § 387j(c) is part of a statutory scheme that estab­
+lishes an adjudicatory process between a manufacturer and 
+the FDA—and no one else. Per that process, after the FDA 
+receives a manufacturer's marketing application and reviews 
+it, the statute requires a particular agency response: The 
+FDA “shall” “issue an order that the new product” either 
+may be, or may not be, “introduced . . . into interstate com­
+merce.” § 387j(c)(1)(A). 
+The FDA makes this marketing-approval decision in ac­
+cordance with the statute's directives, by considering the 
+manufacturer's marketing application in all of its particulars. 
+See §§ 387j(b), (c). I touched on those details above, see 
+supra, at 242, but it bears repeating here that, by law, a manu­
+facturer's application must contain a “full statement of the 
+components, ingredients, additives, and properties” of the 
+proposed tobacco product; a “description of the methods used 
+in, and the facilities and controls used for, the manufacture, 
+processing, and . . . packing” of the product; and, in some 
+instances, samples of the product itself. § 387j(b)(1). The 
+manufacturer gathers all of that information and submits it 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+247 
+Jackson, J., dissenting 
+directly to the FDA. That is it—the agency does not solicit 
+any information from interested third parties, such as poten­
+tial consumers or retailers who wish to sell the product, and 
+manufacturers are not required to submit any information to 
+the FDA on their behalf. 
+Nor do retailers, in particular, have any procedural rights 
+whatsoever after a manufacturer submits its marketing ap­
+plication. Indeed, in many circumstances, the FDA is re­
+quired to deny an application without regard to the impact 
+that doing so might have on retailers. For example, the 
+FDA must deny an application if the manufacturer's produc­
+tion, processing, or packing facilities fail to conform to regu­
+latory standards. See § 387j(c)(2)(B). The FDA must also 
+deny an application if the manufacturer fails to show “that 
+permitting such tobacco product to be marketed would be 
+appropriate for the protection of the public health.” 
+§ 387j(c)(2)(A). 
+This all means that, under the premarketing-approval 
+scheme that Congress has crafted, the interests of tobacco 
+retailers are entirely beside the point—they do not factor in 
+at all. It is the manufacturers that have to make the requi­
+site showings, and if they do a poor job, the retailers are 
+simply out of luck. There is no mechanism by which any 
+interested third party (including a retailer excited by the 
+prospect of being able to sell the relevant product) can sup­
+plement a manufacturer's marketing application. There are 
+also no third-party notice requirements, and Congress has 
+emphasized the importance of confdentiality, so third-party 
+retailers may not even know that an application for the mar­
+keting of a particular new tobacco product has been submit­
+ted to the FDA at all, let alone that one was denied. See 
+§ 387j(e)(2) (requiring the FDA to serve denial notices on 
+applicants, but not retailers); see also § 387f(c) (providing 
+that the agency may not disclose confdential information to 
+nonapplicants); 86 Fed. Reg. 55398 (2021) (recognizing that 
+“the intent to market a tobacco product that is not currently 
+Page Proof Pending Publication
+
+248 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+marketed is often considered confidential commercial 
+information”).1 
+Thus, the text of the statutory provisions that create the 
+premarketing-approval scheme Congress adopted does not 
+support the conclusion that Congress promulgated this stat­
+ute with retailers' interests in mind. 
+C 
+Nor does the purpose of the Tobacco Control Act's 
+premarketing-approval or judicial-review provisions. In­
+stead, the statute's judicial-review mechanism operates to 
+ensure that those most invested in a new product's authoriza­
+tion can enlist a court to double check the FDA's work. 
+Manufacturers plainly fall within that category: At the time 
+a manufacturer applies for authorization to market a new 
+tobacco product, it has already expended considerable time, 
+money, and effort to develop that product. 
+But retailers are differently situated. As a general mat­
+ter, when a manufacturer applies for authorization to market 
+a new product, retailers are mere bystanders—they do not 
+yet have any skin in the game. Cf. §§ 331(c), 387b(6)(A) 
+(clarifying that a new tobacco product may not be sold before 
+1 Contrary to the majority's assertion (ante, at 236, n. 7), the fact that 
+retailers can face criminal penalties for selling a tobacco product that lacks 
+FDA approval tells us nothing about the scope of the statute's zone of 
+interest related to the FDA's denial of a manufacturer's marketing applica­
+tion. After all, it is not Congress's decision to deny a manufacturer's 
+marketing application that subjects a retailer to criminal penalties; a re­
+tailer never has a legal right to sell an unauthorized product—before or 
+after an application is submitted. See infra this page and 249. So, 
+although retailers may hope that the FDA will grant a particular appli­
+cation, the FDA's failure to do so does not impact the retailer's 
+rights. What is more, the zone-of-interest inquiry asks us to consider 
+who Congress intended to weigh in on the FDA's decision to deny the 
+manufacturer authorization to market the product. Neither Congress's 
+general prohibition on the sale of unauthorized tobacco products nor the 
+mechanisms it has provided for the enforcement of that prohibition speaks 
+to the threshold authorization issue. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+249 
+Jackson, J., dissenting 
+the FDA approves it). A retailer may desire to sell an up­
+coming (not-yet-approved) product—it may even expect to 
+proft handsomely, if the manufacturer's application were to 
+be approved and the product deemed marketable. But that 
+kind of forward-looking interest is different in kind from the 
+manufacturer's backward-looking one. If the FDA denies a 
+manufacturer's marketing application, a retailer might well 
+be disappointed, but it will not lose an investment; it can 
+stock its shelves with something else. Thus, Congress could 
+have rationally intended to protect manufacturers' reliance 
+interests by affording them a layer of judicial review if the 
+FDA denies a marketing application, while feeling no need 
+to extend similar protection to retailers. 
+The intuition that Congress reasonably intended to draw 
+a distinction between the interests of manufacturers and re­
+tailers—and protected only the former in the instant con­
+text—is confrmed by a provision of § 387j that enables the 
+FDA to withdraw its prior approval of a tobacco product in 
+certain situations. See § 387j(d). That provision states 
+that the agency's decision to withdraw its approval of a to­
+bacco product may be challenged in court by only the 
+“holder of [the] application subject to” the withdrawal 
+order—in other words, the manufacturer alone. § 387j(d)(2). 
+To me, this is the single most signifcant piece of textual 
+evidence bearing on Congress's intent regarding the protec­
+tion of retailers. 
+Under the majority's view, even though a retailer cannot 
+challenge the FDA's decision to withdraw its prior approval 
+per § 387j(d), it can fle a lawsuit to challenge the FDA's de­
+nial of a manufacturer's application in the frst instance due 
+to the “any person adversely affected” language of the cause 
+of action. But as I see it, the fact that a retailer cannot 
+challenge a withdrawal order makes it much more likely that 
+Congress did not intend to permit it to challenge the agency's 
+initial denial of an application either—a consistent and rea­
+sonable result since, as I have explained, retailers generally 
+Page Proof Pending Publication
+
+250 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+lack any fnancial stake or reliance interests in the applica­
+tion's approval. 
+Indeed, in my view, the provision prohibiting retailers 
+from challenging the withdrawal of an approved application 
+puts the nail in the proverbial coffn of the contention that 
+retailers' interests are being protected by this statute. 
+When the FDA withdraws its marketing approval, retailers 
+may well have already invested considerably in the new to­
+bacco product—e. g., by purchasing inventory, setting up 
+store displays, or attracting new customers. But Congress 
+did not seem to care; the statute states plainly that only man­
+ufacturers can fle suit to challenge such withdrawal. Why 
+would Congress have wanted retailers to be able to seek ju­
+dicial review of the agency's initial denial (at which point 
+they generally lack reliance interests), but not when the 
+agency withdraws its approval (at which point they generally 
+will have such interests)? 
+The majority offers no explanation, stating only that this 
+differential treatment was Congress's “choice.” Ante, at 
+238. But “[t]he illogic of the majority's interpretation 
+strongly signals that what the majority believes Congress 
+`chose' is not actually what Congress intended or accom­
+plished.” Advocate Christ Medical Center v. Kennedy, 605 
+U. S. 1, 29 (2025) (Jackson, J., dissenting). The more logical 
+inference by far is that Congress excluded retailers from pro­
+tecting their interests in the withdrawal context precisely 
+because retailers are not within the zone of interest of this 
+statutory scheme. 
+III 
+A 
+Ignoring our past edicts regarding how the zone-of-interest 
+test works, the majority spends very little time evaluating 
+the substantive provisions of the Tobacco Control Act's mar­
+keting scheme. Instead, it zeroes in on the language of the 
+provision supplying the cause of action: § 387l(a)(1). In its 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+251 
+Jackson, J., dissenting 
+view, retailers ft within that provision's scope because, by 
+permitting suit by “ `any person adversely affected,' ” the 
+statute's text “suggests an intent to cover more than one 
+party.” Ante, at 237. But as I have already noted, fxating 
+on the broad text of a judicial-review provision substantially 
+similar to the ones that prompted us to birth the zone-of­
+interest test gets us nowhere—at least, nowhere remotely 
+resembling the traditional inquiry and what it was designed 
+to do. This observation is fundamental; as our foundational 
+zone-of-interest precedents recognized, a literal reading of 
+capacious cause-of-action language renders the provision far 
+broader than it is typically reasonable to conclude Congress 
+intended. Cf. Thompson, 562 U. S., at 176–177 (observing 
+that “absurd consequences” about who was entitled to sue 
+would follow if the Court were to interpret literally a simi­
+larly worded cause of action). 
+In any event, even pure textualists would have to acknowl­
+edge that § 387l(a)(1)'s seemingly infnite terminology can be 
+adequately explained by a linguistic quirk that has little to 
+do with Congress's “choice” to allow any arguably affected 
+person to sue. Carefully examined, the text of this provi­
+sion permits suit by “any person adversely affected by” 
+either “the promulgation of a regulation” or the “denial of 
+an application.” § 387l(a)(1). One way to use a single sub­
+ject to describe two different types of plaintiffs (those who 
+may seek to challenge an FDA regulation and also those 
+who may seek to challenge the FDA's denial of a manufactur­
+er's application) is to use a generic term, such as “any per­
+son.” By design, that generic phrasing relates to “more 
+than one party” and does not explain or suggest who is in­
+cluded in either category. Ante, at 237. So, ultimately, the 
+“any person” phrasing the majority puts so much stock in 
+might just be a product of Congress's desire to use a single 
+statutory provision to cover both situations. 
+Another noteworthy problem with the majority's interpre­
+tation is that it draws almost exclusively from what this 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+252 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+Court has said about the breadth of the cause of action in an 
+entirely different statute (the APA). It is certainly true 
+that, in the APA context, the zone-of-interest test is “not 
+especially demanding.” Ante, at 233 (internal quotation 
+marks omitted). But, again, we have explained that Con­
+gress intended this language to be broadly interpreted as it 
+appears in the APA precisely because of the breadth of the 
+APA itself. See supra, at 245. By contrast, as I have 
+shown, the Tobacco Control Act's premarketing-approval 
+scheme is narrow: It involves an exchange between tobacco 
+manufacturers and the FDA that occurs when said manufac­
+turers wish to market a new tobacco product. Third parties 
+are entirely excluded from that back-and-forth. And, nota­
+bly, that is so even when circumstances develop that do, in 
+fact, implicate third-party interests (such as when a retailer 
+has already begun marketing the product). There really is 
+no material similarity between the premarketing-approval 
+scheme Congress has constructed in the Tobacco Control 
+Act, on the one hand, and the various interests that the APA 
+protects, on the other. Consequently, the zones of interest 
+those two statutes create are completely different, making it 
+diffcult to understand why the majority fnds the APA paral­
+lel so persuasive. 
+B 
+The majority's take on the scope of § 387l(a)(1)'s cause of 
+action also fails to fully appreciate the reasoning of our zone-
+of-interest precedents. The zone-of-interest analysis here is 
+substantially similar to that of Block, 467 U. S. 340. There, 
+the Court held that the Agricultural Marketing Agreement 
+Act of 1937 permitted only milk handlers and producers— 
+not consumers—to seek judicial review of the Secretary of 
+Agriculture's milk pricing orders, even though the orders af­
+fected (indeed, harmed) consumers by increasing the price 
+of milk. Consumers were not in the zone of interest (and 
+thus were not “adversely affected” persons under the rele­
+vant cause of action, id., at 345), the Court reasoned, because 
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 226 (2025) 
+253 
+Jackson, J., dissenting 
+of the structure of the underlying administrative scheme. 
+Milk market orders were promulgated via a “cooperative 
+venture” between the agency, milk handlers, and milk pro­
+ducers; “[n]owhere in the Act” was there any “provision for 
+participation by consumers.” Id., at 346–347. The Court 
+recognized that “[i]n a complex scheme of this type, the omis­
+sion of such a provision is suffcient reason to believe that 
+Congress intended to foreclose consumer participation in the 
+regulatory process.” Ibid. 
+In the same way that the Agricultural Marketing Agree­
+ment Act contemplated collaboration between the agency, 
+milk handlers, and milk producers—but not consumers—the 
+Tobacco Control Act's premarket-authorization program con­
+templates collaboration between the agency and manufactur­
+ers—but not retailers. Therefore, here, just as in Block, the 
+absence of any mechanism for retailers to participate in that 
+collaborative premarketing-approval process on the front 
+end is a strong signal that Congress did not intend to protect 
+any interests retailers may have on the back end, if premar­
+keting approval is denied. 
+Moreover, as with the would-be plaintiff-consumers in 
+Block, “preclusion of [retailer] suits will not threaten realiza­
+tion of the fundamental objectives of the statute.” Id., at 
+352. After all, a retailer's interest generally will be aligned 
+with a manufacturer's—both want the FDA to approve the 
+application. Manufacturers, then, can “be expected to chal­
+lenge unlawful agency action and to ensure that the statute's 
+objectives will not be frustrated.” Ibid.; cf. Joint Anti-
+Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 153–154 
+(1951) (Frankfurter, J., concurring) (recognizing that the like­
+lihood that a person would be “adequately protected” by the 
+party who is able to challenge the underlying Government 
+action is a “relevant consideration” when determining the 
+scope of judicial review). 
+The majority dismisses Block in a footnote, arguing that 
+it is “readily distinguishable” because the statute provided 
+
+254 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+that certain industry participants could seek judicial review 
+only “after first exhausting administrative remedies.” 
+Ante, at 240, n. 8. But Block is not an exhaustion case. 
+Rather, the Court held that consumers' inability to partici­
+pate in the administrative process was in and of itself a “suf­
+fcient reason” to believe that Congress intended to exclude 
+consumers from using the statutory cause of action to seek 
+judicial review of the relevant agency action. 467 U. S., at 
+347.2 
+Applying the plainly analogous reasoning of Block to the 
+question presented in this case gets us to the most straight­
+forward answer: Like the consumers in Block, the retailers 
+here are beyond the zone of interest and thus cannot invoke 
+the cause of action. But instead of just applying Block, the 
+majority opts to rely on a number of cases interpreting 
+causes of action that are far less similar to the statute at 
+issue here. Ante, at 232–235. 
+Those cases are really of no help because, in each of them, 
+the plaintiff was expressly protected by the statute at issue, 
+and thus ft well within the zone of interest. In Thompson, 
+for example, we had no trouble concluding that an employee 
+injured by his employer's unlawful retaliation fell within the 
+zone of interests of a statute whose purpose was “to protect 
+2 In any event, permitting retailers to sue would “frustrat[e]” the statu­
+tory scheme at issue here, too. Ante, at 240, n. 8. When the FDA denies 
+a manufacturer's application, the manufacturer faces a choice. It can (1) 
+stand on its initial application and challenge the FDA's denial in court; (2) 
+attempt to address its application's shortcomings (by, for example, fxing 
+the part of its manufacturing or processing facilities that the FDA deemed 
+insuffcient, see 21 U. S. C. § 387j(c)(2)(B)); or (3) give up on the product. 
+Allowing retailers to challenge the denial in court deprives the manufac­
+turer of agency over its own application, and risks manufacturers and re­
+tailers taking inconsistent actions after an application is denied. Of 
+course, there may be times in which a retailer and a manufacturer are in 
+lockstep. But, in that situation, one wonders why a retailer needs to be 
+able to sue at all—beyond, of course, its desire to bring a legal challenge 
+in a venue unavailable to the manufacturer. See infra, at 257. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+255 
+Jackson, J., dissenting 
+employees from their employers' unlawful actions.” 562 
+U. S., at 178. And in Bank of America Corp. v. Miami, 581 
+U. S. 189 (2017), the statute had specifcally defned “ `ag­
+grieved person' ” to include “ `any person who . . . claims to 
+have been injured by a discriminatory housing practice,' ” 
+when the plaintiff there had made that claim. Id., at 193. 
+The majority makes much of the Court's statements in 
+those cases that the statutes at issue permitted suit by any­
+one whose interests were at least “ ` “arguably . . . protected 
+by the statute.” ' ” Ante, at 236 (quoting Thompson, 562 
+U. S., at 178; emphasis added). But the retailers here cannot 
+even satisfy that formulation of the standard. The majority 
+explains how retailers may be affected by § 387j but never 
+articulates how retailers are protected by this statute—not 
+arguably, and certainly not actually. See ante, at 236, and 
+n. 7. That's because they can't. No matter how long you 
+stare at § 387j, you will not fnd anything looking out for 
+retailers. They are simply not protected by the provision 
+at all. 
+IV 
+Finally, when evaluating Congress's intent regarding the 
+scope of the cause of action it established in § 387l(a)(1), we 
+should keep in mind, too, that this provision does not merely 
+authorize judicial review of agency determinations at the be­
+hest of “any person adversely affected.” Congress also spe­
+cifcally prescribed where that review must be sought. 
+Again, the text states that “any person adversely affected” 
+by the FDA's denial “may fle a petition for judicial review 
+of such . . . denial with the United States Court of Appeals 
+for the District of Columbia or for the circuit in which such 
+person resides or has their principal place of business.” 
+§ 387l(a)(1). 
+No one disputes that RJR Vapor itself qualifes as a “per­
+son adversely affected” by the FDA's denial of its marketing 
+application. Therefore, it is not as though RJR Vapor had 
+no options—it most certainly could have brought a lawsuit 
+Page Proof Pending Publication
+
+256 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+challenging the FDA's denial in the D. C. Circuit or in the 
+Fourth Circuit, where it has its principal place of business.3 
+So, stepping back, one wonders: Why does it even matter 
+whether the tobacco retailers RJR Vapor has chosen to pair 
+up with have the ability to sue? 
+The above-quoted statutory text provides the answer. As 
+it turns out, at the time RJR Vapor fled its application, the 
+D. C. Circuit and the Fourth Circuit had each already re­
+jected on the merits similar challenges that other favored e-
+cigarette manufacturers had fled. See Avail Vapor, LLC v. 
+FDA, 55 F. 4th 409, 413, 422 (CA4 2022); Prohibition Juice 
+Co. v. FDA, 45 F. 4th 8, 12, 20–21 (CADC 2022). It thus 
+became (perhaps) imperative from RJR Vapor's perspective 
+that its own lawsuit challenging the FDA's denial of its fa­
+vored e-cigarette marketing applications be fled somewhere 
+else. To accomplish that objective—i. e., to facilitate RJR 
+Vapor's end run around § 387l(a)(1)'s venue restrictions— 
+RJR Vapor needed another party to bring its legal challenge 
+to court. 
+It is not hard to see where this is going. RJR Vapor 
+teamed up with a Texas-based retailer that sold the relevant 
+e-cigarettes—respondent Avail Vapor Texas, LLC—and, to­
+gether, they fled a joint petition in the Fifth Circuit, chal­
+lenging the FDA's denial of RJR Vapor's application.4 
+The 
+possibility that the courts would allow venue to be estab­
+lished based on Avail Vapor's presence on the petition gave 
+RJR Vapor hope that its substantive legal challenge would 
+move forward in a more applicant-friendly venue.5 
+3 RJR Vapor is incorporated in North Carolina and maintains its princi­
+pal place of business there too. 
+4 Two other parties were also included on the petition: the Mississippi 
+Petroleum Marketers and Convenience Stores Association and an RJR 
+Vapor corporate affliate that sold the relevant product. The presence of 
+these parties does not affect the legal analysis. 
+5 Although a Fifth Circuit panel had rejected a similar arbitrary-and­
+capricious challenge levied against the FDA's denial of a similar applica­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 226 (2025) 
+257 
+Jackson, J., dissenting 
+From RJR Vapor's strategic litigating standpoint, neither 
+Congress's intent concerning the scope of the cause of action, 
+nor the fact that retailers were not front of mind for Con­
+gress when it crafted the premarketing-approval provisions 
+of the Tobacco Control Act (see Part II, supra) mattered 
+much. Regardless, it was critical for the retailers to partici­
+pate as plaintiffs if RJR Vapor was going to successfully 
+skirt § 387l(a)(1)'s venue restrictions and steer this case to 
+the preferred—but unauthorized—forum. 
+This is, of course, precisely the kind of manipulation that 
+the pesky zone-of-interest test operates to prevent, insofar 
+as it requires § 387l(a)(1) to be interpreted consistent with 
+what Congress cared about when it crafted that statute (in­
+cluding, presumably, its venue-related policies), rather than 
+with undue adherence to whatever might be necessary to 
+advance a party's litigating interests. And, ultimately, for 
+present purposes, the distinction between what Congress 
+wanted when it enacted § 387l(a)(1) and what some tobacco 
+manufacturers want to do now is particularly acute. 
+As we consider who can sue under § 387l(a)(1), it is impor­
+tant to acknowledge that the statute Congress enacted also 
+articulates a clear venue mandate: Thwarted tobacco manu­
+facturers have a cause of action to challenge the FDA's denial 
+of their marketing applications in court, but they must liti­
+gate their interests in the designated venues and, presum­
+ably, not elsewhere—including through proxy suits that third 
+parties fle in other places on their behalf. 
+tion, see Wages & White Lion Investments, L.L.C. v. FDA, 41 F. 4th 427, 
+430, 436–439 (2022), the Circuit had vacated that decision and granted 
+rehearing en banc at the point in which RJR Vapor and Avail Vapor fled 
+their joint action, see 58 F. 4th 233, 234 (2023). That vacatur strongly 
+suggested that the full Fifth Circuit would come out against the FDA— 
+as, indeed, it eventually did. See 90 F. 4th 357, 362, 371 (2024) (en banc). 
+We later vacated the Fifth Circuit's en banc decision, disagreeing with its 
+primary holding. See FDA v. Wages & White Lion Investments, LLC, 
+604 U. S. 542, 592 (2025). 
+Page Proof Pending Publication
+
+258 
+FDA v. R. J. REYNOLDS VAPOR CO. 
+Jackson, J., dissenting 
+*
+*
+* 
+The majority correctly acknowledges that the disputed 
+“any person adversely affected” language in § 387l(a)(1) of 
+the Tobacco Control Act implicates our well-established 
+zone-of-interest test. All agree, too, that, under the zone-
+of-interest test, the watchword is congressional intent. But 
+I would proceed to determine Congress's intent as normal, 
+by applying the traditional tools of statutory interpreta­
+tion to investigate the scope of § 387j(c)—the provision that 
+respondents argue the FDA violated. Every available indi­
+cator reveals that Congress intended to permit manufac­
+turers—not retailers—to challenge the denial of a manufac­
+turers' marketing application (and to do so only in the 
+designated courts). In concluding otherwise, the majority 
+not only opens up an avenue for judicial review that Con­
+gress did not intend, it also allows manufacturers like RJR 
+Vapor to evade the statute's venue requirements. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+(Slip Opinion) 
+OCTOBER TERM, 2021 
+Syllabus 
+NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
+being done in connection with this case, at the time the opinion is issued. 
+The syllabus constitutes no part of the opinion of the Court but has been 
+prepared by the Reporter of Decisions for the convenience of the reader. 
+See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 
+SUPREME COURT OF THE UNITED STATES 
+Syllabus 
+MISSISSIPPI v. TENNESSEE ET AL. 
+ON EXCEPTIONS TO REPORT OF SPECIAL MASTER 
+No. 143, Orig. Argued October 4, 2021—Decided November 22, 2021 
+Mississippi brought an original action against Tennessee for damages
+and other relief related to the pumping of groundwater by the City of 
+Memphis from the Middle Claiborne Aquifer, a valuable water re­
+source that lies beneath eight States.  Mississippi argues that Tennes­
+see’s pumping—using wells Mississippi concedes are located entirely 
+in Tennessee—siphons water away from Mississippi and amounts to a
+tortious taking of groundwater owned by Mississippi. Mississippi ex­
+pressly disclaims any equitable apportionment remedy, arguing that 
+the “fundamental premise of this Court’s equitable apportionment ju­
+risprudence—that each of the opposing States has an equality of right 
+to use the waters at issue—does not apply to this dispute.”  Complaint 
+¶49. The Special Master appointed by the Court to assess Mississippi’s
+claims determined that the aquifer is an interstate water resource and 
+that equitable apportionment is the exclusive judicial remedy. Be­
+cause Mississippi’s complaint did not seek equitable apportionment, 
+the Special Master recommended that the Court dismiss the complaint
+but grant Mississippi leave to amend.  Mississippi challenges the rec­
+ommendation to dismiss; Tennessee objects to the recommendation to
+grant Mississippi leave to file an amended complaint.  
+Held:  The waters of the Middle Claiborne Aquifer are subject to the ju­
+dicial remedy of equitable apportionment; Mississippi’s complaint is 
+dismissed without leave to amend.  Pp. 7–12. 
+(a) The doctrine of equitable apportionment aims to produce a fair 
+allocation of a shared water resource between two or more States, see 
+Colorado v. New Mexico, 459 U. S. 176, 183, based on the principle that
+States have an equal right to reasonable use of shared water resources. 
+Florida v. Georgia, 592 U. S. __, __.  The Court has applied the doctrine
+to interstate rivers and streams, see South Carolina v. North Carolina, 
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+MISSISSIPPI v. TENNESSEE 
+Syllabus 
+558 U. S. 256, to disputes over interstate river basins, see Florida v. 
+Georgia, 585 U. S. __, __, and in situations where the pumping of 
+groundwater has affected the flow of interstate surface waters, see Ne­
+braska v. Wyoming, 515 U. S. 1, 14.  The Court has also applied the 
+doctrine to anadromous fish that migrate between the Pacific Ocean 
+and spawning grounds in the Columbia-Snake River system, 
+“travel[ing] through several States during their lifetime.”  Idaho ex rel. 
+Evans v. Oregon, 462 U. S. 1017, 1018–1019, 1024.   
+The Court has not before addressed whether equitable apportion­
+ment applies to interstate aquifers.  Equitable apportionment of the 
+Middle Claiborne Aquifer is “sufficiently similar” to past applications
+of the doctrine to warrant the same treatment, for several reasons.  Id., 
+at 1024.  First, the Court has applied equitable apportionment when 
+transboundary water resources were at issue.  Here the Middle 
+Claiborne Aquifer’s “multistate character” seems beyond dispute. 
+Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941, 953.  Second, the 
+Middle Claiborne Aquifer contains water that flows naturally between 
+the States, and the Court’s equitable apportionment cases have all con­
+cerned such water, Kansas v. Colorado, 206 U. S. 46, 98, or fish that 
+live in it, Idaho ex rel. Evans, 462 U. S., at 1024.  While Mississippi
+contends the natural transboundary flow of the Middle Claiborne Aq­
+uifer is slower than some streams and rivers, the Court has applied 
+equitable apportionment even to streams that run dry from time to 
+time. See Kansas, 206 U. S., at 115.  The speed of the flow does not 
+place the aquifer beyond equitable apportionment.  Finally, actions
+taken in Tennessee to pump water from the aquifer clearly have effects 
+on the portion of the aquifer that underlies Mississippi. Tennessee’s 
+pumping has contributed to a cone of depression that extends miles 
+into northern Mississippi, and Mississippi itself contends that this 
+cone of depression has reduced groundwater storage and pressure in 
+northern Mississippi.  Such interstate effects are a hallmark of the 
+Court’s equitable apportionment cases, see, e.g., Florida, 592 U. S., at 
+__.  For all these reasons, the Court holds that the judicial remedy of 
+equitable apportionment applies to the waters of the Middle Claiborne 
+Aquifer. Pp. 7–9. 
+(b) The Court rejects Mississippi’s contention that it has a sovereign 
+ownership right to all water beneath its surface that precludes appli­
+cation of equitable apportionment. The Court has “consistently de­
+nied” the proposition that a State may exercise exclusive ownership or 
+control of interstate “waters flowing within her boundaries.”  Hinder­
+lider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102. 
+Although the Court’s past equitable apportionment cases have gener­
+ally concerned streams and rivers, no basis exists for a different result 
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+3 
+Cite as: 595 U. S. ____ (2021) 
+Syllabus 
+in the context of the Middle Claiborne Aquifer.  To the contrary, Mis­
+sissippi’s ownership approach would allow an upstream State to com­
+pletely cut off flow to a downstream one, a result contrary to the 
+Court’s equitable apportionment jurisprudence.  The Court’s decision 
+in Tarrant Regional Water Dist. v. Herrmann, 569 U. S. 614, does not 
+support Mississippi’s position. Tarrant concerned whether one State 
+could cross another’s boundaries to access a shared water resource un­
+der the terms of an interstate compact.  The Court did not consider 
+equitable apportionment, because the affected States had negotiated a
+compact that determined their respective rights to the resource.  To 
+the extent Tarrant stands for the broader proposition that one State
+may not physically enter another to take water in the absence of an 
+express agreement, that principle is not implicated here.  The parties
+have stipulated all of Tennessee’s wells are drilled straight down and 
+do not cross the Mississippi-Tennessee border.  While the origin of an
+interstate water resource may be relevant to the terms of an equitable
+apportionment, that feature alone cannot place the resource outside 
+the doctrine itself.  Because the waters contained in the Middle 
+Claiborne Aquifer are subject to equitable apportionment, the Court 
+overrules Mississippi’s exceptions and adopts the Special Master’s rec­
+ommendation to dismiss the bill of complaint.  Pp. 9–11.
+(c)  Mississippi has neither sought leave to amend its complaint nor
+tendered a proposed complaint seeking equitable apportionment.  The 
+Court does not address whether Mississippi should be granted such 
+leave and sustains Tennessee’s objection to the Special Master’s rec­
+ommendation to grant Mississippi leave to amend.  Pp. 11–12. 
+Exceptions overruled in part and sustained in part, and case dismissed.
+ ROBERTS, C. J., delivered the opinion for a unanimous Court. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+NOTICE: This opinion is subject to formal revision before publication in the 
+preliminary print of the United States Reports. Readers are requested to 
+notify the Reporter of Decisions, Supreme Court of the United States, Wash­
+ington, D. C. 20543, of any typographical or other formal errors, in order that 
+corrections may be made before the preliminary print goes to press. 
+SUPREME COURT OF THE UNITED STATES 
+No. 143, Orig. 
+STATE OF MISSISSIPPI, PLAINTIFF v. TENNESSEE, 
+CITY OF MEMPHIS, TENNESSEE, AND MEMPHIS 
+LIGHT, GAS & WATER DIVISION 
+ON EXCEPTIONS TO REPORT OF SPECIAL MASTER 
+[November 22, 2021]
+ CHIEF JUSTICE ROBERTS delivered the opinion of the 
+Court. 
+The City of Memphis sits on the banks of the Mississippi 
+River in the southwest corner of Tennessee.  Arkansas 
+marks the City’s western border, and Mississippi its south­
+ern. Hundreds of feet beneath Memphis lies one of the 
+City’s most valuable resources: the Middle Claiborne Aqui­
+fer. Workers discovered the aquifer in 1886 while drilling 
+a well for the Bohlen-Huse Ice Company.  Ever since, water 
+pumped from the aquifer has provided Memphis with an
+abundant supply of clean, affordable drinking water.
+The Middle Claiborne Aquifer underlies other States too,
+including Mississippi.  This case began in 2014 when Mis­
+sissippi invoked our original jurisdiction and sought leave
+to file a bill of complaint against Tennessee. Mississippi 
+alleges that Tennessee’s pumping has taken hundreds of 
+billions of gallons of water that were once located beneath 
+Mississippi.  It seeks at least $615 million in damages, as 
+well as declaratory and injunctive relief. We granted Mis­
+sissippi leave to file its complaint and appointed a Special 
+Master to oversee proceedings. The Special Master has now 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+issued his report, which recommends that this Court dis­
+miss Mississippi’s complaint with leave to amend.  Both 
+Mississippi and Tennessee have filed exceptions. 
+I 
+A 
+Layers of rock, clay, silt, sand, and gravel exist below the
+Earth’s surface.  Groundwater percolates through the 
+spaces in and around these materials, sometimes forming 
+underground reservoirs of water known as aquifers.  Some 
+aquifers are small, while others span tens of thousands of 
+square miles. The Middle Claiborne Aquifer is one of the
+latter. It underlies portions of eight States in the Missis­
+sippi River Basin: Alabama, Arkansas, Illinois, Kentucky,
+Louisiana, Mississippi, Missouri, and Tennessee.  See Re­
+port of Special Master 16; Hearing Tr. 278–279.  Many of 
+these States, including Mississippi and Tennessee, draw 
+significant amounts of groundwater from the aquifer.  Id., 
+at 660–662, 1038–1040; Joint Exh. J–71. 
+To extract water from an aquifer, people drill wells.
+Pumps then draw water to the surface, where it is processed
+and piped to customers. Pumping does not just bring water 
+to the surface; it also lowers water pressure at the site of 
+the well. Water is naturally drawn to this area of lower 
+pressure. This, in turn, “causes a pattern of lower or de­
+pressed water levels around the wells.”  Report of Special
+Master 13.  Hydrogeologists call such areas “cones of de­
+pression.” These cones of depression can be local—say, the
+size of a backyard. Or they can be regional, stretching out 
+for many miles from a pumping site.  See id., at 21–23; 
+Hearing Tr. 176, 188, 435. 
+The City of Memphis, through its public utility, the Mem­
+phis Light, Gas and Water Division (MLGW), pumps ap­
+proximately 120 million gallons of groundwater from the 
+Middle Claiborne Aquifer each day.  Id., at 186, 200; Pl. 
+Exh. P–157.  It does so using more than 160 wells located 
+
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+3 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+in and around Memphis.  Joint Statement of Stipulated and 
+Contested Facts 101. Some of these wells are located just a 
+few miles from the Mississippi-Tennessee border, though
+all are drilled straight down such that none crosses the
+physical border between the States. Id., at 101–102, 106. 
+MLGW’s pumping contributes to a cone of depression that 
+underlies both the City of Memphis and DeSoto County,
+Mississippi.  Report of Special Master 21–23; Hearing Tr.
+206, 435–436, 525. 
+Mississippi argues that MLGW’s pumping has altered 
+the historic flow of groundwater within the Middle 
+Claiborne Aquifer.  Mississippi concedes that some water 
+naturally flows from the part of the aquifer beneath Missis­
+sippi to the part beneath Tennessee. But only to the extent
+of some 30 to 60 feet per year.  See Exceptions Brief for Mis­
+sissippi 8; see also Report of Special Master 24 (“Mississippi
+does not dispute the expert consensus that at least some 
+quantity of groundwater . . . crossed the border under nat­
+ural conditions.”). 
+Mississippi contends that MLGW’s
+pumping has substantially hastened this existing flow, al­
+lowing Memphis to take billions of gallons of groundwater 
+that otherwise would have remained under Mississippi for 
+thousands of years. 
+B 
+In 2005, prior to the present litigation, the Attorney Gen­
+eral of Mississippi sued the City of Memphis and MLGW in 
+Federal District Court.  The suit alleged that Memphis had 
+wrongfully appropriated groundwater belonging to Missis­
+sippi through its pumping activities.  Mississippi sought
+hundreds of millions of dollars in damages. 
+The District Court dismissed the suit for failure to join
+Tennessee, which it determined was an indispensable 
+party. Hood ex rel. Miss. v. Memphis, 533 F. Supp. 2d 646, 
+651 (ND Miss. 2008). The Fifth Circuit then affirmed. 
+Hood ex rel. Miss. v. Memphis, 570 F. 3d 625 (2009). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+4 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+Both decisions turned in large part on what is known as
+“equitable apportionment.” Under that doctrine, this Court 
+allocates rights to a disputed interstate water resource af­
+ter one State sues another under our original jurisdiction. 
+See Kansas v. Colorado, 206 U. S. 46, 97–98 (1907).  Tradi­
+tionally, equitable apportionment has been the exclusive ju­
+dicial remedy for interstate water disputes, unless a stat­
+ute, compact, or prior apportionment controls.  This Court 
+has never before held that an interstate aquifer is subject 
+to equitable apportionment, so Mississippi’s suit implicated 
+a question of first impression.
+The Court of Appeals, affirming the District Court, held
+that interstate aquifers are comparable to interstate rivers 
+and are thus subject to equitable apportionment.  It rea­
+soned that an aquifer “flows, if slowly.” Hood ex rel. Miss., 
+570 F. 3d, at 630.  And it said the fact that an aquifer is
+“located underground, as opposed to resting above ground,” 
+was of “no analytical significance.”  Ibid. Because deter­
+mining “Mississippi and Tennessee’s relative rights to the 
+Aquifer” brought the case within the equitable apportion­
+ment doctrine, the Court of Appeals affirmed the District
+Court’s holding that Tennessee was an indispensable party. 
+Id., at 630–631; see also Fed. Rule Civ. Proc. 19(a).  Joinder 
+of Tennessee in the lower federal courts was not possible, 
+however, because this Court has exclusive jurisdiction over
+suits between States. See U. S. Const., Art. III, §2; 28 
+U. S. C. §1251(a).  So the Fifth Circuit held that the District 
+Court had properly dismissed the suit.  Hood ex rel. Miss., 
+570 F. 3d, at 632–633; Fed. Rule Civ. Proc. 19(b).
+Mississippi then petitioned for a writ of certiorari.  It also 
+sought leave to file a bill of complaint against Tennessee,
+Memphis, and MLGW under our original jurisdiction.  The 
+proposed complaint requested over $1 billion in damages for 
+the alleged taking of Mississippi’s water.  In the alterna­
+tive, it sought equitable apportionment of the aquifer, with
+a damages award for past diversions of groundwater.  We 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+declined to grant certiorari, 559 U. S. 904 (2010), and de­
+nied without prejudice Mississippi’s request for leave to file
+a bill of complaint, 559 U. S. 901 (2010). 
+C 
+In 2014, Mississippi again sought leave from this Court
+to file a bill of complaint against Tennessee, Memphis, and 
+MLGW. That is the basis of this suit.  Mississippi’s com­
+plaint alleges that MLGW “has forcibly siphoned into Ten­
+nessee hundreds of billions of gallons of high quality 
+groundwater owned by Mississippi.”  Complaint ¶23.  It 
+says that MLGW’s “mechanical pumping” is to blame and 
+that the “groundwater taken by Defendants from within
+Mississippi’s borders would have never under normal, nat­
+ural circumstances been drawn into Tennessee.”  Id., ¶24.
+This “wrongful taking,” the State contends, “is evidenced by
+a substantial drop in pressure and corresponding draw-
+down of stored groundwater” in northwest Mississippi, and 
+by a cone of depression extending miles into its territory. 
+Id., ¶25. As a result, Mississippi says, it has to drill its own 
+wells deeper to access the aquifer, and use more electricity 
+to pump water to the surface.  Id., ¶54(b).
+Mississippi claims an absolute “ownership” right to all 
+groundwater beneath its surface—even after that water 
+has crossed its borders. See id., ¶¶8–12, 39.  It argues that 
+Tennessee’s pumping thus amounts to a tortious taking of 
+property, and it seeks at least $615 million in damages.  See 
+id., ¶¶55–56. Mississippi expressly disclaims equitable ap­
+portionment, arguing that the “fundamental premise of this 
+Court’s equitable apportionment jurisprudence—that each
+of the opposing States has an equality of right to use the 
+waters at issue—does not apply to this dispute.”  Id., ¶49.
+We granted Mississippi leave to file its complaint and ap­
+pointed Judge Eugene E. Siler, Jr., of the Sixth Circuit to
+serve as Special Master. He has ably discharged his duties. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+6 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+Following motions practice, discovery, and a five-day evi­
+dentiary hearing, the Special Master issued a report recom­
+mending that we dismiss Mississippi’s complaint, but with
+leave to amend. 
+He first determined that the Middle 
+Claiborne Aquifer is an interstate water resource.  He found 
+that the aquifer is a “single hydrogeological unit,” that Ten­
+nessee’s pumping affects groundwater beneath Mississippi, 
+and that prior to such pumping, “groundwater flowed be­
+tween Mississippi and Tennessee”—a fact Mississippi “does 
+not dispute.” Report of Special Master 15–24.
+The Special Master then concluded that, because the aq­
+uifer is an interstate water resource, equitable apportion­
+ment is the appropriate remedy.  He recognized that equi­
+table apportionment “stands alone as the federal common-
+law principle for disputes over interstate water,” id., at 31, 
+and saw “no compelling reason to chart a new path for 
+groundwater resources,” id., at 26. Because Mississippi’s
+complaint did not seek equitable apportionment, the Spe­
+cial Master recommends that we dismiss it.  But he also 
+recommends that we grant Mississippi leave to file an
+amended complaint seeking equitable apportionment, 
+though the State has not yet sought such leave.
+Mississippi and Tennessee both filed exceptions to the 
+Special Master’s report. Mississippi objects to the Special
+Master’s recommendation that we dismiss the suit.  It ar­
+gues that the Special Master erred in finding the water in
+the Middle Claiborne Aquifer subject to equitable appor­
+tionment. Tennessee objects only to the Special Master’s 
+recommendation that we grant Mississippi leave to amend
+its complaint.
+We “conduct an independent review of the record, and as­
+sume the ultimate responsibility for deciding all matters.” 
+Kansas v. Nebraska, 574 U. S. 445, 453 (2015) (internal
+quotation marks omitted).  Based on that review, we dis­
+miss Mississippi’s complaint and decline to grant leave to 
+amend. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+II 
+A 
+Equitable apportionment aims to produce a fair alloca­
+tion of a shared water resource between two or more States. 
+See Colorado v. New Mexico, 459 U. S. 176, 183 (1982).  The 
+doctrine’s “guiding principle” is that States “have an equal
+right to make a reasonable use” of a shared water resource. 
+Florida v. Georgia, 592 U. S. ___, ___ (2021) (slip op., at 4) 
+(internal quotation marks omitted).
+We pioneered the doctrine in Kansas v. Colorado, 206 
+U. S. 46. Since then, we have often applied it to interstate
+rivers and streams. See South Carolina v. North Carolina, 
+558 U. S. 256 (2010); Colorado v. New Mexico, 459 U. S. 
+176; Nebraska v. Wyoming, 325 U. S. 589 (1945); Wyoming 
+v. Colorado, 259 U. S. 419 (1922).  We have also applied the
+doctrine to disputes over interstate river basins, see Florida 
+v. Georgia, 585 U. S. ___, ___–___ (2018) (slip op., at 2–3), 
+and in situations where the pumping of groundwater has
+affected the flow of interstate surface waters, see Nebraska 
+v. Wyoming, 515 U. S. 1, 14 (1995).  We have even applied 
+the doctrine to anadromous fish—such as Chinook salmon 
+and steelhead trout—that migrate between the Pacific 
+Ocean and spawning grounds in the Columbia-Snake River 
+system, “travel[ing] through several States during their 
+lifetime.” See Idaho ex rel. Evans v. Oregon, 462 U. S. 1017, 
+1018–1019, 1024 (1983). 
+Mississippi correctly observes that we have never consid­
+ered whether equitable apportionment applies to interstate 
+aquifers. See Exceptions Brief for Mississippi 28. Con­
+fronted as we are with this matter of first impression, we 
+resist general propositions and focus our analysis on
+whether equitable apportionment of the Middle Claiborne 
+Aquifer would be “sufficiently similar” to past applications
+of the doctrine to warrant the same treatment.  Idaho ex rel. 
+Evans, 462 U. S., at 1024 (adopting such an approach in ex­
+tending the doctrine to anadromous fish). We conclude that 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+it would. 
+First, we have applied equitable apportionment only
+when transboundary resources were at issue. See Virginia 
+v. Maryland, 540 U. S. 56, 74, n. 9 (2003); Colorado v. New 
+Mexico, 459 U. S., at 183.  The Middle Claiborne Aquifer’s
+“multistate character” seems beyond dispute.  See Sporhase 
+v. Nebraska ex rel. Douglas, 458 U. S. 941, 953 (1982).  Mis­
+sissippi concedes that the “geologic formation in which the
+groundwater is stored straddles two states.”  Complaint
+¶41. Indeed, a core premise of Mississippi’s suit is that Ten­
+nessee is pumping water that was once in Mississippi.  The 
+evidence shows that wells in Memphis and wells in north­
+west Mississippi are “pumping from the same aquifer.” 
+Hearing Tr. 492; see Report of Special Master 20 (noting 
+that the “scientific consensus holds that the Middle 
+Claiborne Aquifer is a single hydrogeological unit” span­
+ning multiple States).
+Also pertinent is that the Middle Claiborne Aquifer con­
+tains water that flows naturally between the States.  All of 
+our equitable apportionment cases have concerned such wa­
+ter, Kansas v. Colorado, 206 U. S., at 98, or fish that live in 
+it, Idaho ex rel. Evans, 462 U. S., at 1024.  Mississippi sug­
+gests the Middle Claiborne Aquifer is distinguishable from
+interstate rivers and streams because its natural flow is 
+“extremely slow.”  Exceptions Brief for Mississippi 8.  But 
+we have long applied equitable apportionment even to
+streams that run dry from time to time.  See Kansas v. Col­
+orado, 206 U. S., at 115.  And although the transboundary 
+flow here may be a mere “one or two inches per day,” Ex­
+ceptions Brief for Mississippi 8, that amounts to over 35
+million gallons of water per day, and over ten billion gallons
+per year, see Hearing Tr. 532–533.  So the speed of the flow,
+at least in the context of this case, does not place the aquifer 
+beyond equitable apportionment.
+Finally, it is clear that actions in Tennessee “reach[] 
+through the agency of natural laws” to affect the portion of 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+9 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+the aquifer that underlies Mississippi.  Kansas v. Colorado, 
+206 U. S., at 97.  Tennessee’s pumping has contributed to a
+cone of depression that extends miles into northern Missis­
+sippi. Hearing Tr. 484–485, 501–502, 926; see also Report 
+of Special Master 22–23. Mississippi itself contends that 
+this cone of depression has reduced groundwater storage 
+and pressure in northern Mississippi.  See Complaint ¶¶25,
+54. It also alleges that Tennessee’s pumping is “siphoning” 
+tens of millions of gallons of groundwater each day from 
+Mississippi’s portion of the aquifer. Id., ¶54. Such inter­
+state effects are a hallmark of our equitable apportionment 
+cases. See, e.g., Florida v. Georgia, 592 U. S., at ___–___ 
+(2021) (slip op., at 2–3) (examining the effects of Georgia’s
+water use on Florida’s oyster fisheries and river ecosystem).
+For these reasons, we hold that the waters of the Middle 
+Claiborne Aquifer are subject to the judicial remedy of eq­
+uitable apportionment. 
+B 
+Mississippi contends that it has sovereign ownership of 
+all groundwater beneath its surface, so equitable apportion­
+ment ought not apply.  We see things differently.  It is cer­
+tainly true that “each State has full jurisdiction over the 
+lands within its borders, including the beds of streams and 
+other waters.”  Kansas v. Colorado, 206 U. S., at 93.  But 
+such jurisdiction does not confer unfettered “ownership or
+control” of flowing interstate waters themselves.  Wyoming 
+v. Colorado, 259 U. S., at 464.  Thus, we have “consistently 
+denied” the proposition that a State may exercise exclusive 
+ownership or control of interstate “waters flowing within
+her boundaries.” Hinderlider v. La Plata River & Cherry 
+Creek Ditch Co., 304 U. S. 92, 102 (1938).  Although our past
+cases have generally concerned streams and rivers, we see
+no basis for a different result in the context of the Middle 
+Claiborne Aquifer.  When a water resource is shared be­
+tween several States, each one “has an interest which 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+10 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+should be respected by the other.”  Wyoming v. Colorado, 
+259 U. S., at 466.  Mississippi’s ownership approach would 
+allow an upstream State to completely cut off flow to a 
+downstream one, a result contrary to our equitable appor­
+tionment jurisprudence.
+Mississippi argues that our decision in Tarrant Regional 
+Water Dist. v. Herrmann, 569 U. S. 614 (2013), supports its 
+position. We disagree. Tarrant concerned the interpreta­
+tion of an interstate compact.  We held that the compact did
+not authorize the party States to “cross each other’s bound­
+aries to access a shared pool of water.” Id., at 627. Our 
+decision turned on the language of the compact and back­
+ground principles of contract law. We did not consider eq­
+uitable apportionment, because the affected States had 
+taken it upon themselves to negotiate a compact that deter­
+mined their respective rights to the resource in question. 
+To the extent Tarrant stands for the broader proposition
+that one State may not physically enter another to take wa­
+ter in the absence of an express agreement, that principle 
+is not implicated here.  The parties have stipulated that all
+of Tennessee’s wells are drilled straight down and do not 
+cross the Mississippi-Tennessee border. See Joint State­
+ment of Stipulated and Contested Facts 106.  When Ten­
+nessee pumps groundwater, it is pumping water located 
+within its own territory.  That some of the water was previ­
+ously located in Mississippi is of no moment, just as it was 
+not dispositive that the river at issue in Colorado v. New 
+Mexico started in Colorado, 459 U. S., at 181, n. 8, or that 
+certain fish at issue in Idaho ex rel. Evans hatched in Idaho, 
+462 U. S., at 1028, n. 12.  The origin of an interstate water 
+resource may be relevant to the terms of an equitable ap­
+portionment. But that feature alone cannot place the re­
+source outside the doctrine itself. 
+We conclude that the waters contained in the Middle 
+Claiborne Aquifer are subject to equitable apportionment. 
+We therefore overrule Mississippi’s exceptions and adopt 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+11 
+Cite as: 595 U. S. ____ (2021) 
+Opinion of the Court 
+the Special Master’s recommendation to dismiss the bill of 
+complaint. 
+III 
+After recommending that this Court dismiss Mississippi’s 
+suit, the Special Master went on to recommend that we 
+grant the State leave to file an amended complaint seeking 
+equitable apportionment.  We decline to decide whether 
+Mississippi should be granted such leave, because the State 
+has never sought it.  As Mississippi itself emphasizes—lit­
+erally—it has “not yet requested equitable apportionment.” 
+Reply Brief to Defendants’ Exception 7.
+Nor can we assume Mississippi will do so.  Mississippi’s 
+initial pleadings in this case disavowed equitable appor­
+tionment entirely. See Complaint ¶38 (“This case does not
+fall within the Court’s equitable apportionment jurispru­
+dence.”). The State instead sought relief under principles 
+of tort law. And the proceedings below reflected this pos­
+ture, focusing on the physical properties of the aquifer and 
+Tennessee’s pumping. An equitable apportionment case
+would require us to consider a broader range of evidence. 
+Such evidence often includes not only the physical proper­
+ties and flow of a water resource, but also existing uses, the 
+availability of alternatives, practical effects, and the costs
+and benefits to the States involved. See Florida v. Georgia, 
+585 U. S., at ___–___ (2018) (slip op., at 13–14); South Car­
+olina, 558 U. S., at 271–272; Colorado v. New Mexico, 459 
+U. S., at 183, 186–187.  A just equitable apportionment 
+might also require the joinder of additional parties, cf. Fed.
+Rule Civ. Proc. 19(a), as Mississippi and Tennessee are not 
+the only States that rely on the Middle Claiborne Aquifer 
+for groundwater, see Hearing Tr. 660–662, 1038–1040; 
+Joint Exh. J–71. Finally, if Mississippi were to seek leave 
+to amend, its complaint would be subject to our longstand­
+ing rule that a “State seeking equitable apportionment un­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+12 
+MISSISSIPPI v. TENNESSEE 
+Opinion of the Court 
+der our original jurisdiction must prove by clear and con­
+vincing evidence some real and substantial injury or dam­
+age.” Idaho ex rel. Evans, 462 U. S., at 1027. 
+As Mississippi has neither sought leave to amend nor ten­
+dered a proposed complaint seeking equitable apportion­
+ment, we have no occasion to determine how these and 
+other pertinent principles might apply. 
+* 
+* 
+* 
+Mississippi has failed to show that it is entitled to relief. 
+We therefore overrule Mississippi’s exceptions to the Spe­
+cial Master’s report, sustain Tennessee’s, and dismiss the 
+case. 
+It is so ordered. 
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+Corrigendum: Towards strengthening collaboration between district and local municipalities in South Africa: Insights from Ehlanzeni District Municipality
+
+No abstract available.
+
+http://www.td-sa.net
+Open Access
+The Journal for Transdisciplinary Research in Southern Africa 
+ISSN: (Online) 2415-2005, (Print) 1817-4434
+Page 1 of 1
+Correction
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Authors:
+Douglas N. Magagula1 
+Ricky M. Mukonza2 
+Rasodi K. Manyaka1 
+Kabelo B. Moeti3 
+Affiliations:
+1Department of Public 
+Management, Tshwane 
+University of Technology, 
+Mbombela, South Africa
+2Department of Public 
+Management, Tshwane 
+University of Technology, 
+Polokwane, South Africa
+3Department of Public 
+Management, Tshwane 
+University of Technology, 
+Pretoria, South Africa
+Corresponding author:
+Ricky Mukonza, 
+mukonzarm@tut.ac.za
+Dates:
+Published: 09 Nov. 2020
+How to cite this article:
+Magagula, D.N., Mukonza, 
+R.M., Manyaka, R.K. & Moeti, 
+K.B., 2020, ‘Corrigendum: 
+Towards strengthening 
+collaboration between district 
+and local municipalities in 
+South Africa: Insights from 
+Ehlanzeni District 
+Municipality’, The Journal for 
+Transdisciplinary Research in 
+Southern Africa 16(1), a799. 
+https://doi.org/10.4102/
+td.v16i1.799
+Copyright:
+© 2020. The Authors. 
+Licensee: AOSIS. This work 
+is licensed under the 
+Creative Commons 
+Attribution License.
+Note: DOI of original article: https://doi.org/10.4102/td.v15i1.673 
+In the version of this article initially published, Magagula, D.N., Mukonza, R.M., Manyaka, R.K. 
+& Moeti, K.B., 2019, ‘Towards strengthening collaboration between district and local municipalities 
+in South Africa: Insights from Ehlanzeni District Municipality’, The Journal for Transdisciplinary 
+Research in Southern Africa 15(1), a673. https://doi.org/10.4102/td.v15i1.673, the organisation 
+name ‘Ehlanzeni District Municipality’ was incorrectly abbreviated as EDMEDM in some 
+instances throughout the article. The correct abbreviation should be EDM.
+This correction does not alter the study’s findings of significance or overall interpretation of the 
+study’s results. The authors apologise for any inconvenience caused.
+Corrigendum: Towards strengthening collaboration 
+between district and local municipalities in South Africa: 
+Insights from Ehlanzeni District Municipality
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
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+PRELIMINARY PRINT 
+Volume 605 U. S. Part 1 
+Pages 165–167 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 22, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+OCTOBER TERM, 2024 
+165 
+Syllabus 
+OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD 
+et al. v. DRUMMOND, ATTORNEY GENERAL OF 
+OKLAHOMA, ex rel. OKLAHOMA 
+certiorari to the supreme court of oklahoma 
+No. 24–394. Argued April 30, 2025—Decided May 22, 2025* 
+2024 OK 53, 558 P. 3d 1, affrmed by an equally divided Court. 
+James A. Campbell argued the cause for petitioners in No. 
+24–394. With him on the brief were Kristen K. Waggoner, 
+Christopher P. Schandevel, Philip A. Sechler, Mark A. Lip­
+pelmann, John J. Bursch, Erin M. Hawley, Caroline C. 
+Lindsay, Andrea R. Dill, and Cheryl Plaxico. 
+Michael H. McGinley argued the cause for petitioner in 
+No. 24–396. With him on the briefs fled in both cases were 
+Steven A. Engel, Brian A. Kulp, John A. Meiser, Meredith 
+H. Kessler, and Michael R. Perri. 
+Solicitor General Sauer argued the cause for the United 
+States as amicus curiae supporting petitioners. On the 
+brief fled in both cases were Acting Solicitor General Har­
+ris, Deputy Assistant Attorney General McArthur, Yaira 
+Dubin, Michael S. Raab, Lowell V. Sturgill, Jr., and Sean 
+R. Janda. 
+Gregory G. Garre argued the cause for respondent in both 
+cases. With him on the brief fled in both cases were Gent­
+ner F. Drummond, Attorney General of Oklahoma, Garry 
+M. Gaskins II, Solicitor General, Bradley S. Clark, Jordan 
+R. Goldberg, and Christine C. Smith.† 
+*Together with No. 24–396, St. Isidore of Seville Catholic Virtual 
+School v. Drummond ex rel. Oklahoma, also on certiorari to the same 
+court. 
+†Briefs of amici curiae urging reversal in both cases were fled for the 
+American Center for Law and Justice et al. by Jay Alan Sekulow, Benja­
+min P. Sisney, Jordan A. Sekulow, Stuart J. Roth, and Andrew J. Ekono­
+mou; for the Christian Legal Society et al. by Eric W. Treene, Steven T. 
+McFarland, and Laura Nammo; for Classical Charter Schools of America, 
+
+166 
+OK CHARTER SCHOOL BOARD v. DRUMMOND 
+Per Curiam 
+Per Curiam. 
+The judgment is affrmed by an equally divided Court. 
+Justice Barrett took no part in the consideration or de­
+cision of these cases. 
+Inc., et al. by Aaron M. Streett, J. Mark Little, and Travis L. Gray; for 
+the Covenant Journey Academy by Mathew D. Staver, Anita L. Staver, 
+and Horatio G. Mihet; for EdChoice et al. by Thomas M. Fisher, Bryan 
+G. Cleveland, Cynthia Fleming Crawford, and Lawrence S. Ebner; for the 
+General Council of the Assemblies of God et al. by Noel J. Francisco and 
+Eric C. Rassbach; for Great Hearts Academies et al. by Denise M. Harle, 
+Nicholas J. P. Meros, and Kassandra S. Reardon; for the Jewish Coalition 
+for Religious Liberty et al. by Jacob Huebert and Howard Slugh; for the 
+Lepanto Institute by Gerard V. Bradley; for the Manhattan Institute by 
+Ilya Shapiro; for National Religious Broadcasters by Michael P. Farris; 
+for The Rutherford Institute by Jason P. Gosselin and John W. Whitehead; 
+for the Union of Orthodox Jewish Congregations of America by Lori H. 
+Windham, Adèle A. Keim, Benjamin A. Fleshman, Andrea R. Butler, and 
+Nathan J. Diament; for the United States Conference of Catholic Bishops 
+by Benjamin M. Flowers; for the Wisconsin Institute for Law & Liberty, 
+Inc., by Richard M. Esenberg and Luke Berg; for the World Faith Founda­
+tion et al. by James L. Hirsen, Tami Fitzgerald, and Deborah J. Dewart; 
+for Peter Deutsch by Gordon D. Todd and Nicholas R. Reaves; for Charles 
+L. Glenn by Eric N. Kniffn; for Francis Keating II et al. by Miles E. 
+Coleman and Randall L. Wenger; for Sen. James Lankford et al. by Mark 
+I. Pinkert, Jason Torchinsky, and Edward M. Wenger; for John M. O'Con­
+nor et al. by Thomas R. McCarthy and Tiffany H. Bates; for Gov. J. Kevin 
+Stitt by Jonathan R. Whitehead; for Ryan Walters et al. by Allyson N. 
+Ho, Elizabeth A. Kiernan, Kelly J. Shackelford, Jeffrey C. Mateer, Hiram 
+S. Sasser III, David J. Hacker, Anthony J. Ferate, and Andrew W. Lester; 
+for S. Ernie Walton by Christopher T. Holinger; and for the Wolff Family 
+by Will K. Wright. 
+Briefs of amici curiae urging affrmance in both cases were fled for the 
+Advancement Project et al. by Carmen Daugherty; for American Atheists, 
+Inc., by Geoffrey T. Blackwell; for the Baptist Joint Committee for Reli­
+gious Liberty et al. by David M. Gossett, Thaila K. Sundaresan, K. Hol­
+lyn Hollman, and Heather E. Kimmel; for the Charter School Growth 
+Fund by Jonathan Y. Ellis and H. Brent McKnight, Jr.; for Charter 
+Schools by Christopher A. Brook; for Constitutional and Education Law 
+Scholars by Stephan J. Schlegelmilch; for Historians and Legal Scholars 
+
+Cite as: 605 U. S. 165 (2025) 
+167 
+Per Curiam 
+by Charles A. Rothfeld, Steven K. Green, and Eugene R. Fidell; for the 
+National Alliance for Public Charter Schools by Pratik A. Shah and Kris­
+ten E. Loveland; for the National Association of Charter School Authoriz­
+ers by Lisa Scruggs; for the National Parents Union et al. by Seth P. Wax-
+man and James S. Liebman; for the Oklahoma Parent Legislative 
+Advocacy Coalition et al. by Alex J. Luchenitser, Robert Kim, Jessica 
+Levin, Daniel Mach, Heather L. Weaver, Cecillia D. Wang, Louise Mell­
+ing, Patrick Elliott, Benjamin H. Odom, John H. Sparks, Michael W. 
+Ridgeway, and J. Douglas Mann; for Public Charter School Organizations 
+by Paul E. Salamanca; for Public Charter School Parents et al. by Dallas 
+F. Kratzer III and Shaina Richardson; for Public School Organizations 
+and Advocates by Daniel A. Rubens, Alyssa Barnard-Yanni, Melanie R. 
+Hallums, and Thomas M. Bondy; and for Scholars of the Religion Clauses 
+by Donald B. Verrilli, Jr., and Martin S. Lederman. 
+Briefs of amici curiae were fled in both cases for the State of Colorado 
+et al. by Philip J. Weiser, Attorney General of Colorado, Shannon Steven­
+son, Solicitor General, Russell D. Johnson, Deputy Solicitor General, Joe 
+Peters, Senior Assistant Attorney General, and Abby Chestnut and Dayna 
+Zolle Hauser, Assistant Solicitors General, and by the Attorneys General 
+for their respective jurisdictions as follows: Kris Mayes of Arizona, Rob 
+Bonta of California, William Tong of Connecticut, Kathleen Jennings of 
+Delaware, Brian L. Schwalb of the District of Columbia, Kwame Raoul 
+of Illinois, Aaron M. Frey of Maine, Anthony G. Brown of Maryland, An­
+drea Joy Campbell of Massachusetts, Keith Ellison of Minnesota, Aaron 
+D. Ford of Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez of 
+New Mexico, Letitia A. James of New York, Dan Rayfeld of Oregon, 
+Peter F. Neronha of Rhode Island, and Nicholas W. Brown of Washington 
+State; for the State of South Carolina et al. by Alan Wilson, Attorney 
+General of South Carolina, Robert D. Cook, Solicitor General, and Joseph 
+D. Spate, Assistant Deputy Solicitor General, and by the Attorneys Gen­
+eral for their respective States as follows: Steve Marshall of Alabama, Tim 
+Griffn of Arkansas, James Uthmeier of Florida, Christopher M. Carr of 
+Georgia, Kris Kobach of Kansas, Liz Murrill of Louisiana, Andrew Bailey 
+of Missouri, Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, 
+Dave Yost of Ohio, and Ken Paxton of Texas; for the Association on Ameri­
+can Indian Affairs et al. by John E. Echohawk, Melody L. McCoy, and 
+Morgan E. Saunders; for Former Elected and Appointed State Offcials 
+et al. by Joshua Tropper; for the Foundation for Moral Law by Roy S. 
+Moore and Jeffrey Tuomala; and for Jon R. Meador, pro se. 
+
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
diff --git a/corpus/law/text/798310e7de6a4eaa.txt b/corpus/law/text/798310e7de6a4eaa.txt
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@@ -0,0 +1,416 @@
+Features of the labor organization of persons sentenced to compulsory and correctional labor
+
+The article covers controversial issues of legal regulation of labor of persons sentenced to compulsory and corrective labor. On the basis of an analysis of the norms of national legislation a conclusion was made on the priority of the norms of the Penal Code of the Russian Federation over the norms of labor legislation in the regulation of labor of convicts.
+
+59
+Преступление • наказание • исправление
+Юридические науки
+УДК 343.82 	 	
+	
+	
+	
+	
+      DOI 10.46741/2076-4162-2019-13-1-59-63
+Особенности организации трудовой деятельности лиц, 
+привлеченных к отбыванию наказания в виде обязательных  
+и исправительных работ
+С. Н. Кондратовская – начальник кафедры гражданско-правовых дис-
+циплин ВИПЭ ФСИН России, кандидат юридических наук, доцент;
+Е. В. Валькова – преподаватель кафедры гражданско-правовых дисци-
+плин ВИПЭ ФСИН России
+Р е ф е р а т
+Статья освещает спорные вопросы правового регулирования труда лиц, осуж-
+денных к обязательным и исправительным работам. На основе анализа норм нацио-
+нального законодательства сделан вывод о приоритете норм УИК РФ перед норма-
+ми трудового законодательства при регулировании труда осужденных.
+К л ю ч е в ы е с л о в а: правовое регулирование труда осужденного без изоляции 
+от общества; трудовые права; обязательные работы; исправительные работы; уго-
+ловно-исполнительные инспекции.
+12.00.08 – Уголовное право и криминология; уголовно-исполнительное право
+Features of the labor organization  
+of persons sentenced to compulsory and correctional labor
+S. N. Kondratovskaya – Head of the Department of Civil Law Disciplines 
+of the Vologda Institute of Law and Economics of the Federal Penal Service of 
+Russia, PhD. in Law, Associate Professor;
+E. V. Valkova – Lecturer at the Department of Civil Law Disciplines of the 
+Vologda Institute of Law and Economics of the Federal Penal Service of Russia
+A b s t r a c t
+The article covers controversial issues of legal regulation of labor of persons sentenced 
+to compulsory and corrective labor. On the basis of an analysis of the norms of national 
+legislation a conclusion was made on the priority of the norms of the Penal Code of the 
+Russian Federation over the norms of labor legislation in the regulation of labor of convicts.
+Key w o r d s: legal regulation of labor of a convicted person without isolation from 
+society; labor rights; compulsory work; correctional labor; penal inspections.
+12.00.08 – Criminal law and criminology; penal law
+Согласно ст. 9 УИК РФ под  исправлени-
+ем осужденных понимается формирование 
+у них уважительного отношения к обществу, 
+человеку, труду, правилам и традициям че-
+ловеческого общежития и стимулирование 
+правопослушного поведения. Достижение 
+целей наказания обеспечивается во мно-
+гом соблюдением принципа индивидуали-
+зации: применением средств исправления 
+осужденных с учетом характера и степени 
+общественной 
+опасности 
+совершенного 
+преступления, личности осужденных и их 
+поведения. Кроме того, по мнению ряда ис-
+следователей, важное криминологическое 
+значение имеет выявление мотива совер-
+шения преступного деяния [4, с. 22].
+Современная уголовная политика Рос-
+сии, основываясь на реализации основных 
+задач, которые были поставлены в Концеп-
+ции развития уголовно-исполнительной си-
+стемы Российской Федерации до 2020 г. [6], 
+идет по пути уменьшения применения нака-
+зания в виде лишения свободы и более ча-
+стого применения наказания, не связанного 
+
+60
+В е с т н и к  и н с т и т у та
+с изоляцией от общества, к лицам, которые 
+осуждены за преступления небольшой об-
+щественной опасности, где исправление 
+возможно при сохранении привычных им ус-
+ловий жизни. 
+В этой связи одним из оснований сокра-
+щения реального лишения свободы (помимо 
+условного осуждения) становятся исправи-
+тельные или обязательные работы, причем 
+в последние годы наблюдается тенденция к 
+увеличению числа лиц, осужденных к обяза-
+тельным работам. 
+Так, мировыми судами Вологодской об-
+ласти в 2014 г. был вынесен приговор о на-
+значении наказания в виде обязательных 
+работ в отношении 16,9 % лиц, в виде ис-
+правительных работ – в отношении 27, 6%; 
+в 2015 г. – 19,2 % и 23 %; в 2016 г. – 41,5 % 
+и 12,3 %, в 2017 г. – 34,4 % и 18 % соответ-
+ственно [7]. 
+Закономерно встает вопрос: а что такое 
+обязательные и исправительные работы? 
+Регулируются ли они трудовым законода-
+тельством? Или это специальные меры на-
+казания без изоляции от общества, никак не 
+связанные с понятием работы, трудовыми 
+отношениями.  
+Следует отметить, что правовой статус 
+лиц, осужденных без изоляции от общества, 
+относится к статусу отдельных категорий 
+осужденных и имеет существенные отличия, 
+обусловленные особенностями отбываемо-
+го ими наказания [3, с. 253] .
+Исходя из содержания ст. 49 УК РФ обяза-
+тельные работы характеризуются выполне-
+нием осужденным в свободное от основной 
+работы или учебы время бесплатных обще-
+ственно полезных работ.
+Согласно ст. 50 УК РФ исправительные 
+работы назначаются осужденному, имею-
+щему основное место работы, а равно не 
+имеющему его, то есть осужденный, имею-
+щий основное место работы, отбывает ис-
+правительные работы по основному месту 
+работы, а осужденный, не имеющий такого 
+места работы, отбывает исправительные 
+работы в местах, определяемых органами 
+местного самоуправления по согласованию 
+с уголовно-исполнительными инспекциями, 
+но в районе места жительства осужденного. 
+То есть, обязательные работы – это обще-
+ственно полезный труд, а исправительные 
+работы – это трудовая деятельность, и они 
+должны регулироваться по общему правилу 
+трудовым законодательством. 
+Главной особенностью трудовой право-
+субъектности осужденных лиц является то, 
+что в отличие от Конституции Российской 
+Федерации, где провозглашается право на 
+труд (ст. 37), осужденные к наказанию в виде 
+обязательных и исправительных работ обя-
+заны трудиться (ч. 1 ст. 26 и ч. 1 ст. 40 УИК 
+РФ). 
+Установленная обязанность трудиться 
+является дискуссионной на протяжении 
+многих лет, поскольку противоречит нормам 
+международного права, а также нормам 
+Конституции Российской Федерации и рос-
+сийского трудового законодательства, кото-
+рые запрещают принудительный труд. 
+На международно-правовом уровне за-
+прет принудительного труда наличествует, 
+прежде всего, в Международном пакте о 
+гражданских и политических правах (1966) 
+[5]. Однако в ст. 8 данного документа отме-
+чается, что труд по приговору суда не счита-
+ется принудительным. 
+Более основательно понятие принуди-
+тельного труда закреплено в Конвенции МОТ 
+№ 29 «Относительно принудительного или 
+обязательного труда» (1930) [8]. Конвенция 
+определяет принудительный труд как рабо-
+ту под угрозой наказания, психического или 
+физического воздействия при условии, что 
+лицо не желает добровольно предоставлять 
+свои услуги. В довершение всего, данная 
+конвенция, повторяя норму Всеобщей де-
+кларации прав человека [1], также отмечает, 
+что труд по приговору суда нельзя считать 
+принудительным.
+В ТК РФ под принудительным трудом по-
+нимается выполнение работы под угрозой 
+применения какого-либо наказания (на-
+сильственного воздействия), в том чис-
+ле прочего в целях поддержания трудовой 
+дисциплины; в качестве меры ответствен-
+ности за участие в забастовке; в качестве 
+средства мобилизации и использования 
+рабочей силы для нужд экономического 
+развития; в качестве наказания за наличие 
+или выражение политических взглядов или 
+идеологических убеждений, противополож-
+ных установленной политической, социаль-
+ной или экономической системе; в качестве 
+дискриминации по признакам расовой, со-
+циальной, национальной или религиозной 
+принадлежности. При этом в ст. 4 опреде-
+лено, что принудительный труд не включа-
+ет в себя работу, выполняемую вследствие 
+вступившего в законную силу приговора 
+суда под надзором государственных ор-
+ганов, ответственных за соблюдение за-
+конодательства при исполнении судебных 
+приговоров. В данном случае такими орга-
+нами являются уголовно-исполнительные 
+инспекции. 
+
+61
+Преступление • наказание • исправление
+Юридические науки
+В этой связи можно согласиться с выво-
+дом Е. С. Шукаевой, что характеризуемые 
+нормы подчеркивают отсутствие у труда 
+осужденных принудительного характера, а 
+обозначают, что труд таких лиц не является 
+принудительным в понимании ст. 8 Между-
+народного пакта о гражданских и политиче-
+ских правах и ст. 4 ТК РФ, то есть не относит-
+ся к запрещенному принудительному труду 
+[9, с. 160] .
+Однако условия труда осужденных к обя-
+зательным и исправительным работам бу-
+дут совершенно разные. 
+Как уже отмечалось, обязательные рабо-
+ты, по смыслу уголовного законодательства, 
+заключаются в выполнении осужденным в 
+свободное от основной работы или учебы 
+время бесплатных общественно полезных 
+работ. 
+Указанный вид наказания исполняется 
+уголовно-исполнительной инспекцией по 
+месту жительства осужденного, то есть в 
+пределах муниципального образования, в 
+котором проживает осужденный. Вид обя-
+зательных работ и объекты, на которых они 
+отбываются, определяются органами мест-
+ного самоуправления по согласованию с 
+уголовно-исполнительной инспекцией. 
+Кроме того, особенности правового ста-
+туса осужденных обусловливают опреде-
+ленные ограничения их труда. Во-первых, 
+обязательные работы выполняются бес-
+платно, и заработная плата осужденному 
+за такие работы не выдается. Во-вторых, 
+условия труда зависят от уголовно-испол-
+нительной инспекции и органов местного 
+самоуправления, и, например, уволиться 
+по собственному желанию осужденному 
+нельзя. 
+Уголовное  наказание в виде исправи-
+тельных работ также регламентируется УИК 
+РФ и реализуется уголовно-исполнитель-
+ными инспекциями. Данное учреждение 
+не позднее 15 дней со дня получения соот-
+ветствующего распоряжения суда с копией 
+приговора обязано привлечь осужденного к 
+отбыванию наказания по основному месту 
+работы, а осужденного, не имеющего основ-
+ного места работы, – в местах, определяе-
+мых органами местного самоуправления по 
+согласованию с уголовно-исполнительными 
+инспекциями. Осужденный не вправе отка-
+заться от предложенной органами службы 
+занятости работы или переквалификации.
+Исправительные работы устанавливают-
+ся на срок от двух месяцев до двух лет.
+Исправительные работы выражаются в 
+ряде правоограничений лица, отбывающе-
+го данный вид наказания. Из его заработ-
+ной платы производятся удержания в доход 
+государства в размере, установленном при-
+говором суда, в пределах от 5 до 20 %.
+Ежегодный отпуск лицам, отбывающим 
+исправительные работы, предоставляется 
+лишь в размере 18 рабочих дней, а отбы-
+вающим обязательные работы вообще не 
+предоставляется, кроме того, время обя-
+зательных работ не включается в трудовой 
+стаж, поэтому трудовая книжка на таких 
+осужденных не заводится [2, с. 9–10]. Для 
+таких лиц очередной отпуск по месту основ-
+ной работы, отпуск для сдачи экзаменов или 
+каникулы не приостанавливают исполнение 
+обязательных работ. В данном случае, исхо-
+дя из конкретной ситуации, только уголов-
+но-исполнительная инспекция может пре-
+доставить отсрочку (например, для сдачи 
+выпускных экзаменов). Данные положения 
+противоречат основным принципам трудо-
+вого законодательства.
+В то же время, как и любой другой работ-
+ник, в соответствии с нормами законода-
+тельства о труде осужденный к обязатель-
+ным или исправительным работам во время 
+отбывания наказания обязан соблюдать 
+правила внутреннего трудового распорядка 
+учреждения, где он работает, добросовест-
+но относиться к труду. 
+Кроме того, если осужденному лицу был 
+причинен вред, который был связан с вы-
+полнением обязательных или исправитель-
+ных работ, возмещение вреда производится 
+в общем порядке в соответствии с действу-
+ющим трудовым законодательством.
+Если рассматривать поощрения и взы-
+скания в отношении осужденных к испра-
+вительным или обязательным работам, то 
+можно выделить следующее. Мерами по-
+ощрения могут быть сокращение срока, 
+объема обязанностей и запретов, которые 
+были применены уголовно-исполнительной 
+инспекцией к осужденному. Кроме того, мо-
+жет быть применена такая мера поощрения, 
+как представление к условно-досрочному 
+освобождению от отбывания наказания. 
+За нарушение трудовой дисциплины, в 
+частности за неявку на работу и прогул, 
+а также появление на работе в состоянии 
+алкогольного, наркотического или токси-
+ческого опьянения, в качестве взыскания 
+в соответствии со ст. 29, 30 и 46 УИК РФ 
+уголовно-исполнительная инспекция мо-
+жет применить к осужденному взыскание в 
+виде предупреждения в письменной фор-
+ме о замене обязательных или исправи-
+тельных работ другим видом наказания, а 
+
+62
+В е с т н и к  и н с т и т у та
+в отношении осужденного, злостно укло-
+няющегося от отбывания наказания, ин-
+спекция направляет в суд представление 
+о замене обязательных или исправитель-
+ных работ другим видом наказания в соот-
+ветствии с ч. 3 ст. 49 или ч. 4 ст. 50 УК РФ. 
+Заметим, что такие виды дисциплинарных 
+взысканий не входят в список, указанный в 
+ст. 192 ТК РФ.
+Таким образом, на основе анализа зако-
+нодательства можно сделать вывод, что ТК 
+РФ не содержит никаких норм относительно 
+труда осужденных лиц, основой регулиро-
+вания труда данной категории лиц является 
+уголовно-исполнительный закон, а нормы 
+трудового права применяются в части, от-
+носящейся к условиям труда, рабочему вре-
+мени, оплате труда, охране труда и социаль-
+ному страхованию. Меры дисциплинарной 
+и материальной ответственности лиц, вре-
+мя отдыха, основания и размер удержаний 
+из заработной платы урегулированы непо-
+средственно в УИК РФ.
+Подводя итог, отметим, что современное 
+состояние правового регулирования отбы-
+вания наказания лицами, осужденными без 
+изоляции от общества, коррелируется с со-
+циально-экономической ситуацией в стране, 
+своевременно меняется под воздействием 
+важнейших направлений государственного 
+развития (гуманизации уголовной политики, 
+административной реформы, антикорруп-
+ционной политики). Вместе с тем в данной 
+сфере существуют определенные недо-
+статки. Во-первых, они обусловлены подза-
+конным характером значимых нормативных 
+правовых актов, регулирующих обществен-
+ные отношения в сфере исполнения уголов-
+ных наказаний. Во-вторых, связаны с одно-
+временным 
+существованием 
+нескольких 
+нормативных правовых актов, регулирую-
+щих одни и те же общественные отношения, 
+но использующих различные способы кон-
+струирования нормативной информации, 
+что неизбежно приводит к коллизиям либо 
+спорам о компетенции.
+СПИСОК ЛИТЕРАТУРЫ
+1. Всеобщая декларация прав человека : принята Генеральной Ассамблеей ООН 10.12.1948 // Рос. газ. 1995. 5 апр.
+2. Грушин Ф. Д. О некоторых правовых аспектах исполнения наказания в виде обязательных работ // Ведомости 
+уголов.-исполнит. системы. 2007. № 12. С. 7–10. 
+3. Кондратовская С. Н., Избушкина С. И. Правовой статус лиц, осужденных без изоляции от общества // Инноваци-
+онные научные исследования: теория, методология, практика : сб. ст. IX Междунар. науч.-практ. конф. Пенза, 2017. 
+С. 253–255.
+4. Криминологическая характеристика мужчин, осужденных к лишению свободы / А. М. Смирнов и др. // Актуаль-
+ные вопросы образования и науки. 2016. № 3–4. С. 20–29.
+5. Международный пакт о гражданских и политических правах : принят 16.12.1966 Резолюцией 2200 (XXI) на 1496-м 
+пленарном заседании Генеральной Ассамблеи ООН // Ведомости Верхов. Совета СССР. 1976. № 17. Ст. 291.
+6. О Концепции развития уголовно-исполнительной системы Российской Федерации до 2020 года : распоряжение 
+Правительства Российской Федерации от 14.10.2010 № 1772-р (ред. от 23.09.2015)  // Собр. законодательства 
+Рос. Федерации. 2010. № 43. Ст. 5544.
+7. Обзор судебной статистики о результатах деятельности мировых судей Вологодской области за период с 2014 
+по 2017 гг. URL: http://usd.vld.sudrf.ru/modules.php?name=stat&rid=3/ (дата обращения: 10.07.2018).
+8. Относительно принудительного или обязательного труда : конвенция Международной организации труда от 
+28.06.1930 № 29 // Ведомости Верхов. Совета СССР. 1956. № 13. Ст. 279.
+9. Шукаева Е. С. О степени свободы труда лиц, осужденных к лишению свободы // Вестн. Воронеж. ин-та МВД 
+России. 2015. № 3. С. 160.
+References
+1. Vseobshchaya deklaraciya prav cheloveka : prinyata General’noj Assambleej OON 10.12.1948 [Universal Declaration 
+of Human Rights : adopted by the UN General Assembly 12.10.1948]. Ros. gaz. – Russian newspaper. 1995. April 5. (In 
+Russ.).
+2. Grushin F. D. O nekotoryh pravovyh aspektah ispolneniya nakazaniya v vide obyazatel’nyh rabot [On some legal aspects 
+of the execution of punishment in the form of compulsory labor]. Vedomosti ugolov.-ispolnit. sistemy – Bulletin of the penal 
+system. 2007. Iss. 12. P. 7–10. (In Russ.).
+3. Kondratovskaya S. N., Izbushkina S. I. Pravovoj status lic, osuzhdennyh bez izolyacii ot obshchestva [The legal status of 
+persons convicted without isolation from society]. Innovacionnye nauchnye issledovaniya: teoriya, metodologiya, praktika :  
+sb. st. IX Mezhdunar. nauch.-prakt. konf. – Innovative scientific research: theory, methodology, practice : IX International 
+scientific-practical conf. collection. Penza, 2017. P. 253–255. (In Russ.).
+4. Kriminologicheskaya harakteristika muzhchin, osuzhdennyh k lisheniyu svobody / A. M. Smirnov i dr. [Criminological 
+characteristics of men sentenced to imprisonment / A. M. Smirnov et al.]. Aktual’nye voprosy obrazovaniya i nauki – Current 
+issues of education and science. 2016. Iss. 3–4. P. 20–29. (In Russ.).
+5. Mezhdunarodnyj pakt o grazhdanskih i politicheskih pravah : prinyat 16.12.1966 Rezolyuciej 2200 (XXI) na 1496-m 
+plenarnom zasedanii General’noj Assamblei OON [International Covenant on Civil and Political Rights : adopted on 
+16.12.1966 by Resolution 2200 (XXI) at the 1496th plenary meeting of the UN General Assembly]. Vedomosti Verhov. 
+Soveta SSSR – Bulletin of the Supreme Soviet of the USSR. 1976. Iss. 17. Art. 291. (In Russ.).
+6. O Koncepcii razvitiya ugolovno-ispolnitel’noj sistemy Rossijskoj Federacii do 2020 goda : rasporyazhenie Pravitel’stva 
+Rossijskoj Federacii ot 14.10.2010 № 1772-r (red. ot 23.09.2015) [On the Concept for the Development of the Penal 
+System of the Russian Federation until 2020: Order of the Government of the Russian Federation from 14.10.2010  
+
+63
+Преступление • наказание • исправление
+Юридические науки
+No. 1772-p (in red. on 23.09.2015)]. Sobr. zakonodatel’stva Ros. Federacii – Collection of Legislation of the Russian 
+Federation. 2010. Iss. 43. Art. 5544. (In Russ.).
+7. Obzor sudebnoj statistiki o rezul’tatah deyatel’nosti mirovyh sudej Vologodskoj oblasti za period s 2014 po 2017 gg. 
+[Review of judicial statistics on the performance of the magistrates of the Vologda region for the period from 2014 to 2017]. 
+Availabel at: http://usd.vld.sudrf.ru/modules.php?name=stat&rid=3/ (accessed 10.07.2018). (In Russ.).
+8. Otnositel’no prinuditel’nogo ili obyazatel’nogo truda : konvenciya Mezhdunarodnoj organizacii truda ot 28.06.1930  
+№ 29 [Regarding forced or compulsory labor : Convention of the International Labor Organization from 29.06.1930 No. 29]. 
+Vedomosti Verhov. Soveta SSSR – Bulletin of the Supreme Soviet of the USSR. 1956. Iss. 13. Art. 279. (In Russ.).
+9. SHukaeva E. S. O stepeni svobody truda lic, osuzhdennyh k lisheniyu svobody [On the degree of freedom of labor of 
+persons sentenced to imprisonment]. Vestn. Voronezh. in-ta MVD Rossii – Bulletin of the Voronezh Institute of the Ministry 
+of Internal Affairs of Russia. 2015. Iss. 3. P. 160. (In Russ.).
diff --git a/corpus/law/text/7a1219f520e16537.txt b/corpus/law/text/7a1219f520e16537.txt
new file mode 100644
index 0000000000000000000000000000000000000000..5a865104f31ae69cdc519a0a0a4a6a92bd9e441c
--- /dev/null
+++ b/corpus/law/text/7a1219f520e16537.txt
@@ -0,0 +1,112 @@
+Corrigendum: Leveraging windows of opportunity for expertise to matter in global environmental governance: insights from the United Nations Convention to Combat Desertification
+
+CORRECTION article Front. Clim., 21 March 2024Sec. Climate and Decision Making Volume 6 - 2024 | https://doi.org/10.3389/fclim.2024.1395927
+
+Frontiers in Climate
+01
+frontiersin.org
+Corrigendum: Leveraging 
+windows of opportunity for 
+expertise to matter in global 
+environmental governance: 
+insights from the United Nations 
+Convention to Combat 
+Desertification
+Sara Velander 1,2* and Matteo De Donà 3,4
+1 Center for Development Research, University of Bonn, Bonn, Germany, 2 Institute of Political Science, 
+University of Münster, Münster, Germany, 3 Department of Political Science, Lund University, Lund, 
+Sweden, 4 School of Global Studies, University of Gothenburg, Göteborg, Sweden
+KEYWORDS
+expertise, global environmental governance, institutional design, desertification, 
+scientific knowledge, sustainable development, boundary work, influence
+A Corrigendum on 
+Leveraging windows of opportunity for expertise to matter in global 
+environmental governance: insights from the United Nations Convention 
+to Combat Desertification
+by Velander, S., and De Donà, M. (2024). Front. Clim 5:1325030. doi: 10.3389/fclim.2023.1325030
+In the published article, there was an error in Discussion, Paragraph 10 due to 
+misinterpreting a claim from Akhtar-Schuster et al. (2022). The first sentence of Discussion, 
+Paragraph 10 stated that “The advantages of a closer collaboration with the UNCCD secretariat 
+and member states suggest that the proposal put forth by Akhtar-Schuster et al. (2022) to grant 
+the SPI an independent, formal legal status, similar to the IPCC and IPBES, may not be the 
+most ideal approach”. However Akhtar-Schuster et al. (2022) did not state that the UNCCD 
+SPI should become formalized outside the convention and transformed into an independent 
+expert group like the IPCC or IPBES, but found that “further formalization of the SPI’s status 
+within the UNCCD is vital to improve its functions, undertake its work, and enable the 
+UNCCD to maintain its global lead in providing knowledge and advice on combating 
+desertification, land degradation and drought.” The sentence has therefore been updated to 
+“The advantages of a closer collaboration with the UNCCD secretariat and member states 
+suggest that granting the SPI an independent, legal status, similar to the IPCC and IPBES, may 
+not be an ideal approach”. A correction has been made to Discussion, Paragraph 10 below:
+The advantages of a closer collaboration with the UNCCD secretariat and member 
+states suggest that granting the SPI an independent, legal status, similar to the IPCC and 
+IPBES, may not be an ideal approach. This is because it could potentially result in 
+expertise becoming excessively detached from policy, as highlighted in the study by De 
+Donà and Linke (2023). However, we acknowledge that while the IPCC and IPBES are 
+OPEN ACCESS
+APPROVED BY
+Inkyoung Kim, 
+Bridgewater State University, 
+United States
+*CORRESPONDENCE
+Sara Velander 
+ svelander@uni-bonn.de
+RECEIVED 04 March 2024
+ACCEPTED 11 March 2024
+PUBLISHED 21 March 2024
+CITATION
+Velander S and De Donà M (2024) 
+Corrigendum: Leveraging windows of 
+opportunity for expertise to matter in global 
+environmental governance: insights from the 
+United Nations Convention to Combat 
+Desertification.
+Front. Clim. 6:1395927.
+doi: 10.3389/fclim.2024.1395927
+COPYRIGHT
+© 2024 Velander and De Donà. This is an 
+open-access article distributed under the 
+terms of the Creative Commons Attribution 
+License (CC BY). The use, distribution or 
+reproduction in other forums is permitted, 
+provided the original author(s) and the 
+copyright owner(s) are credited and that the 
+original publication in this journal is cited, in 
+accordance with accepted academic 
+practice. No use, distribution or reproduction 
+is permitted which does not comply with 
+these terms.
+TYPE  Correction
+PUBLISHED  21 March 2024
+DOI  10.3389/fclim.2024.1395927
+
+Velander and De Donà
+10.3389/fclim.2024.1395927
+Frontiers in Climate
+02
+frontiersin.org
+independent from their associated Rio conventions, they continue 
+to have strong impacts on global environmental policies through 
+a scientific assessment process and, particularly, the development 
+of a summary for policymakers, in which both intergovernmental 
+expert groups are highly influenced by the policy side. 
+Additionally, with the IPCC and IPBES generating assessments 
+which are, by design, not policy-prescriptive, and covering the 
+issues of biodiversity loss and climate change more 
+comprehensively, they have a broader reach in their influence and 
+audience. This contrasts with the UNCCD SPI in its institutional 
+design of being firmly embodied in the UNCCD mechanism and, 
+therefore, mandated to “translate relevant scientific findings and 
+recommendations… into proposals to be considered by the CST 
+for the consideration of the COP” (UNCCD Secretariat, 2017). 
+This results in a different type of output, typically topic-specific 
+assessments almost exclusively catered to a policy audience.
+The authors apologize for this error and state that this does not 
+change the scientific conclusions of the article in any way. The original 
+article has been updated.
+Publisher’s note
+All claims expressed in this article are solely those of the authors 
+and do not necessarily represent those of their affiliated organizations, 
+or those of the publisher, the editors and the reviewers. Any product 
+that may be evaluated in this article, or claim that may be made by its 
+manufacturer, is not guaranteed or endorsed by the publisher.
diff --git a/corpus/law/text/8501273f8364f4ab.txt b/corpus/law/text/8501273f8364f4ab.txt
new file mode 100644
index 0000000000000000000000000000000000000000..532b3874d04f009f05a7faeda06e9417d47a71c1
--- /dev/null
+++ b/corpus/law/text/8501273f8364f4ab.txt
@@ -0,0 +1,51 @@
+Centre de lutte contre l’oppression des genres c. Procureur général du Québec : une réécriture queer de jugement – CORRIGENDUM
+
+C O R R I G E N D U M
+Centre de lutte contre l’oppression des genres
+c. Procureur général du Québec : une réécriture
+queer de jugement – CORRIGENDUM
+Léo Lecomte
+, Laurence Gauvin-Joyal
+et Djemila Carron
+DOI: https://doi.org/10.1017/cls.2024.37 Published by Cambridge University
+Press, 28 February 2025.
+Mots clés: réécriture de jugement; théories queers; discriminations; genre et sexualités;
+droits des personnes trans et/ou intersexes; corrigendum
+The authors apologise for errors in four of the in-text citations. They should be as
+follows:
+At the end of the first paragraph on page 7 it should say: (paragraphe 53).
+In the second paragraph on page 7 it should say: (par exemple au paragraphe
+33).
+In the third paragraph on page 9 it should say: (paragraphe 53)
+Nearer the end of the third paragraph on page 9 it should say: (note de bas de
+page 62)
+Les auteurs et autrices s’excusent pour les erreurs dans quatre des références
+présentes dans le corps du texte. Elles devraient être les suivantes :
+À la fin du premier paragraphe de la page 7, il faut lire : (paragraphe 53).
+Dans le deuxième paragraphe de la page 7, il faut lire : (par exemple au
+paragraphe 33).
+Au troisième paragraphe de la page 9, il faut lire : (paragraphe 53).
+Vers la fin du troisième paragraphe de la page 9, il faut lire : (note de bas de
+page 62).
+© The Author(s), 2025. Published by Cambridge University Press on behalf of Canadian Law and Society Association /
+Association Canadienne Droit et Société. This is an Open Access article, distributed under the terms of the Creative
+Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use,
+distribution and reproduction, provided the original article is properly cited.
+Canadian Journal of Law and Society / Revue Canadienne Droit et Société (2025),
+40: 1, 96–97; doi:10.1017/cls.2025.5
+use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2025.5
+Downloaded from https://www.cambridge.org/core. IP address: 155.69.196.24, on 17 Sep 2026 at 05:38:44, subject to the Cambridge Core terms of
+
+Reference
+Léo Lecomte, Laurence Gauvin-Joyal et Djemila Carron. Centre de lutte contre l’oppression des genres
+c. Procureur général du Québec : une réécriture queer de jugement. Canadian Journal of Law and
+Society / Revue Canadienne Droit et Société. Published by Cambridge University Press, 28 February
+2025. https://doi.org/10.1017/cls.2024.37.
+Citer cet article: Lecomte, Léo, Laurence Gauvin-Joyal, et Djemila Carron. 2025. Centre de lutte contre
+l’oppression des genres c. Procureur général du Québec : une réécriture queer de jugement –
+CORRIGENDUM. Canadian Journal of Law and Society / Revue Canadienne Droit et Société 40, 96–97.
+https://doi.org/10.1017/cls.2025.5
+Centre de lutte contre l’oppression des genres c. Procureur général du Québec
+97
+use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/cls.2025.5
+Downloaded from https://www.cambridge.org/core. IP address: 155.69.196.24, on 17 Sep 2026 at 05:38:44, subject to the Cambridge Core terms of
diff --git a/corpus/law/text/878b3610d26e5c85.txt b/corpus/law/text/878b3610d26e5c85.txt
new file mode 100644
index 0000000000000000000000000000000000000000..538bbd95835b5c5ce8dc40bd757d4d4bcc91fe04
--- /dev/null
+++ b/corpus/law/text/878b3610d26e5c85.txt
@@ -0,0 +1,2256 @@
+PRELIMINARY PRINT 
+Volume 593 U. S. Part 1 
+Pages 98–151 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 22, 2021 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+98 
+OCTOBER TERM, 2020 
+Syllabus 
+JONES v. MISSISSIPPI 
+certiorari to the court of appeals of mississippi 
+No. 18–1259. Argued November 3, 2020—Decided April 22, 2021 
+A Mississippi jury convicted petitioner Brett Jones of murder for killing 
+his grandfather. Jones was 15 years old when he committed the crime. 
+Under Mississippi law at the time, murder carried a mandatory sentence 
+of life without parole. The trial judge duly imposed that sentence, 
+which was affrmed on direct appeal. This Court subsequently decided 
+Miller v. Alabama, 567 U. S. 460, which held that the Eighth Amend­
+ment permits a life-without-parole sentence for a defendant who com­
+mitted a homicide when he or she was under 18, but only if the sentence 
+is not mandatory and the sentencer therefore has discretion to impose 
+a lesser punishment. In the wake of that decision, the Mississippi Su­
+preme Court ordered that Jones be resentenced in accordance with 
+Miller. At the resentencing, the sentencing judge acknowledged that 
+he had discretion under Miller to impose a sentence less than life with­
+out parole. The judge determined, however, that life without parole 
+remained the appropriate sentence for Jones. Jones again appealed his 
+sentence, citing both Miller and the then-recently decided case of Mont­
+gomery v. Louisiana, 577 U. S. 190, which held that Miller applied ret­
+roactively on collateral review. Jones contended that, under Miller and 
+Montgomery, a sentencer must make a separate factual fnding that a 
+murderer under 18 is permanently incorrigible before sentencing the 
+offender to life without parole. The Mississippi Court of Appeals re­
+jected Jones's argument. 
+Held: In the case of a defendant who committed a homicide when he or 
+she was under 18, Miller and Montgomery do not require the sentencer 
+to make a separate factual fnding of permanent incorrigibility before 
+sentencing the defendant to life without parole. In such a case, a dis­
+cretionary sentencing system is both constitutionally necessary and con­
+stitutionally suffcient. Pp. 104–121. 
+(a) A sentencer need not make a separate factual fnding of perma­
+nent incorrigibility before sentencing a murderer under 18 to life with­
+out parole. In Miller, the Court mandated “only that a sentencer follow 
+a certain process—considering an offender's youth and attendant char­
+acteristics—before imposing” a life-without-parole sentence. 567 U. S., 
+at 483. And in Montgomery, the Court stated that “a fnding of fact 
+regarding a child's incorrigibility . . . is not required.” 577 U. S., at 211. 
+Miller and Montgomery require consideration of an offender's youth 
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 98 (2021) 
+99 
+Syllabus 
+but not any particular factual fnding. Miller and Montgomery there­
+fore refute Jones's argument that a fnding of permanent incorrigibility 
+is constitutionally necessary. Pp. 105–113. 
+(b) Nor must a sentencer provide an on-the-record sentencing expla­
+nation with an “implicit fnding” of permanent incorrigibility before 
+sentencing a murderer under 18 to life without parole. An on-the­
+record sentencing explanation is not necessary to ensure that a sen­
+tencer considers a defendant's youth. Nor is an on-the-record sentenc­
+ing explanation required by or consistent with Miller or Montgomery, 
+neither of which said anything about a sentencing explanation. 
+Pp. 113–118. 
+(c) The Court's decision does not disturb Miller's holding (that a State 
+may not impose a mandatory life-without-parole sentence on a murderer 
+under 18) or Montgomery's holding (that Miller applies retroactively on 
+collateral review). The resentencing in Jones's case complied with 
+Miller and Montgomery because the sentencer had discretion to impose 
+a sentence less than life without parole in light of Jones's youth. The 
+Court's decision today should not be construed as agreement or dis­
+agreement with Jones's sentence. In addition, the Court's decision does 
+not preclude the States from imposing additional sentencing limits in 
+cases involving murderers under 18. Nor does the Court's decision pro­
+hibit Jones from presenting his moral and policy arguments against his 
+life-without-parole sentence to the state offcials who are authorized to 
+act on those arguments. Pp. 118–121. 
+285 So. 3d 626, affrmed. 
+Kavanaugh, J., delivered the opinion of the Court, in which Roberts, 
+C. J., Alito, Gorsuch, and Barrett, JJ., joined. Thomas, J., fled an 
+opinion concurring in the judgment, post, p. 121. Sotomayor, J., fled a 
+dissenting opinion, in which Breyer and Kagan, JJ., joined, post, p. 129. 
+David M. Shapiro argued the cause for petitioner. With 
+him on the briefs were Amir H. Ali, Devi Rao, Jacob How­
+ard, and Jeffrey T. Green. 
+Krissy C. Nobile, Deputy Solicitor General of Mississippi, 
+argued the cause for respondent. With her on the brief 
+were Lynn Fitch, Attorney General of Mississippi, Kristi H. 
+Johnson, Solicitor General, Justin L. Matheny, Assistant So­
+licitor General, and Scott Stuart, Special Assistant Attor­
+ney General. 
+Frederick Liu argued the cause for the United States as 
+amicus curiae urging affrmance. With him on the brief 
+
+Page Proof Pending Publication
+100 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+were Acting Solicitor General Wall, Acting Assistant Attor­
+ney General Rabbitt, Deputy Solicitor General Feigin, and 
+Robert A. Parker.* 
+Justice Kavanaugh delivered the opinion of the Court. 
+Under Miller v. Alabama, 567 U. S. 460 (2012), an individ­
+ual who commits a homicide when he or she is under 18 may 
+be sentenced to life without parole, but only if the sentence 
+is not mandatory and the sentencer therefore has discretion 
+to impose a lesser punishment. In this case, a Mississippi 
+*Briefs of amici curiae urging reversal were fled for the American Bar 
+Association by Judy Perry Martinez, Christopher M. Murphy, Lawrence 
+A. Wojcik, and Ethan H. Townsend; for Current and Former Prosecutors 
+et al. by Mary B. McCord, Amy L. Marshak, and Annie L. Owens; for the 
+Juvenile Law Center et al. by Nicole A. Saharsky, Kristen Clarke, Jon 
+Greenbaum, Arthur Ago, Noah Baron, Marsha L. Levick, Riya Saha 
+Shah, Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, Jin Hee Lee, 
+and Mahogane D. Reed; for the National Association of Criminal Defense 
+Lawyers et al. by Ginger D. Anders, Barbara E. Bergman, and André de 
+Gruy; and for Erwin Chemerinsky et al. by Harry Sandick and John 
+Mills. A brief of amici curiae urging vacatur was fled for the American 
+Civil Liberties Union Foundation et al. by David D. Cole, Jennesa Calvo-
+Friedman, Larry W. Yackle, David H. Safavian, John W. Whitehead, and 
+Arthur Rizer. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Indiana et al. by Curtis T. Hill, Jr., Attorney General of Indiana, Thomas 
+M. Fisher, Solicitor General, Kian J. Hudson, Deputy Solicitor General, 
+and Julia C. Payne, Deputy Attorney General, and by the Attorneys Gen­
+eral for their respective States as follows: Steve Marshall of Alabama, 
+Leslie Rutledge of Arkansas, Ashley Moody of Florida, Lawrence G. Was-
+den of Idaho, Daniel Cameron of Kentucky, Eric Schmitt of Missouri, 
+Timothy C. Fox of Montana, Doug Peterson of Nebraska, David A. Yost 
+of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason 
+R. Ravnsborg of South Dakota, Herbert H. Slatery III of Tennessee, Ken 
+Paxton of Texas, and Bridget Hill of Wyoming; for the Criminal Justice 
+Legal Foundation by Kent S. Scheidegger and Kymberlee C. Stapleton; 
+and for the National Organization of Victims of Juvenile Murderers et al. 
+by Kent S. Scheidegger and Kymberlee C. Stapleton. 
+Briefs of amici curiae were fled for Amicus Populi by Mitchell Keiter; 
+for Madge Jones et al. by Angela C. Vigil; and for Jonathan F. Mitchell 
+et al. by Taylor A. R. Meehan. 
+
+Cite as: 593 U. S. 98 (2021) 
+101 
+Opinion of the Court 
+trial judge acknowledged his sentencing discretion under 
+Miller and then sentenced petitioner Brett Jones to life 
+without parole for a murder that Jones committed when he 
+was under 18. The Mississippi Court of Appeals affrmed, 
+concluding that the discretionary sentencing procedure satis­
+fed Miller. 
+Jones argues, however, that a sentencer's discretion to im­
+pose a sentence less than life without parole does not alone 
+satisfy Miller. Jones contends that a sentencer who im­
+poses a life-without-parole sentence must also make a sepa­
+rate factual fnding that the defendant is permanently incor­
+rigible, or at least provide an on-the-record sentencing 
+explanation with an implicit fnding that the defendant is 
+permanently incorrigible. And Jones says that the trial 
+judge did not make such a fnding in his case. 
+Jones's argument that the sentencer must make a fnding 
+of permanent incorrigibility is inconsistent with the Court's 
+precedents. In Miller, the Court mandated “only that a 
+sentencer follow a certain process—considering an offender's 
+youth and attendant characteristics—before imposing” a life­
+without-parole sentence. Id., at 483. And in Montgomery 
+v. Louisiana, which held that Miller applies retroactively on 
+collateral review, the Court fatly stated that “Miller did not 
+impose a formal factfnding requirement” and added that “a 
+fnding of fact regarding a child's incorrigibility . . . is not 
+required.” 577 U. S. 190, 211 (2016). In light of that ex­
+plicit language in the Court's prior decisions, we must reject 
+Jones's argument. We affrm the judgment of the Missis­
+sippi Court of Appeals. 
+I 
+A 
+In August 2004, Brett Jones was living with his grandpar­
+ents, Bertis and Madge, in Shannon, Mississippi. Shannon 
+is a small town of about 2,000 in northern Mississippi near 
+Tupelo, about halfway between Memphis and Birmingham 
+off I–22. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+102 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+At the time, Jones was only 15 years old. On the morning 
+of August 9, 2004, Bertis discovered Jones's girlfriend, Mi­
+chelle Austin, in Jones's bedroom. Bertis and Jones got into 
+an argument, and Bertis ordered Austin out of the house. 
+A few hours later, Jones told Austin that he “ `was going to 
+hurt' ” his grandfather. 938 So. 2d 312, 314 (Miss. App. 2006). 
+That afternoon, Jones was in the kitchen making himself 
+something to eat. Jones and Bertis began arguing again. 
+The clash escalated from shouts to shoves to punches. Jones 
+then stabbed his grandfather with a kitchen knife. When 
+that knife broke, Jones picked up a second knife and contin­
+ued stabbing Bertis. In total, Jones stabbed his grandfa­
+ther eight times. 
+Bleeding profusely, Bertis staggered outside, fell to the 
+ground, and died. Jones did not call 911. Instead, he hap­
+hazardly attempted to cover up his role in the murder. He 
+dragged Bertis's body back inside. Jones then washed the 
+blood off his arms with a water hose, changed out of his 
+bloody shirt, and moved Bertis's car over some blood stains 
+on the carport foor. 
+While Jones was outside, he was seen by a neighbor. The 
+neighbor called the police. Shortly thereafter, another 
+neighbor saw Jones and Austin leaving the house together 
+on foot. Later that night, police located Jones and Austin 
+at a gas station several miles away. When questioned, 
+Jones and Austin provided fake names to the offcer. After 
+a police pat down revealed a knife in Jones's pocket, the off­
+cer asked Jones whether it was the knife that he “ `did it 
+with.' ” Id., at 315. Jones responded, “ `No, I already got 
+rid of it.' ” Ibid. 
+B 
+Jones was charged with murder. The trial judge in­
+structed the jury on murder and the lesser included offense 
+of manslaughter. Jones claimed that he was not guilty be­
+cause he acted in self-defense. The jury rejected that de­
+fense and found Jones guilty of murder. 
+
+Cite as: 593 U. S. 98 (2021) 
+103 
+Opinion of the Court 
+Under Mississippi law at the time, murder carried a man­
+datory sentence of life without parole. Miss. Code Ann. 
+§ 97–3–21 (2000), § 47–7–3(g) (2004); see Parker v. State, 119 
+So. 3d 987, 996–997 (Miss. 2013). The trial judge therefore 
+imposed that sentence. In 2006, the Mississippi Court of 
+Appeals affrmed. See 938 So. 2d 312. 
+Jones later moved for post-conviction relief in state court, 
+asserting among other things that his mandatory life­
+without-parole sentence violated the Cruel and Unusual Pun­
+ishments Clause of the Eighth Amendment. The trial court 
+denied the motion, and the Mississippi Court of Appeals af­
+frmed. See 122 So. 3d 725 (2011). 
+In 2012, while the Mississippi Supreme Court was consid­
+ering whether to review Jones's case, this Court decided 
+Miller v. Alabama, 567 U. S. 460. Miller held that the 
+Cruel and Unusual Punishments Clause of the Eighth 
+Amendment prohibits mandatory life-without-parole sen­
+tences for murderers under 18, but the Court allowed discre­
+tionary life-without-parole sentences for those offenders. 
+In the wake of Miller, the Mississippi Supreme Court con­
+cluded that Miller applied retroactively on state collateral 
+review. In Jones's case, the State Supreme Court ordered 
+a new sentencing hearing where the sentencing judge could 
+consider Jones's youth and exercise discretion in selecting an 
+appropriate sentence. See 122 So. 3d 698 (2013). 
+At the resentencing, Jones's attorney argued that Jones's 
+“chronological age and its hallmark features” diminished the 
+“penological justifcations for imposing the harshest sen­
+tences.” App. 25, 27 (quoting Miller, 567 U. S., at 472, 477; 
+emphasis deleted). Jones's attorney added that “nothing in 
+this record . . . would support a fnding that the offense re­
+fects irreparable corruption.” App. 143–144. 
+At the end of the hearing, the sentencing judge acknowl­
+edged that he had discretion under Miller to impose a sen­
+tence less than life without parole. But after considering 
+the factors “relevant to the child's culpability,” App. 149, the 
+Page Proof Pending Publication
+
+104 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+judge determined that life without parole remained the ap­
+propriate sentence for Jones, id., at 152. 
+Jones appealed his sentence to the Mississippi Court of 
+Appeals, citing both Miller and the then-recently decided 
+case of Montgomery v. Louisiana, 577 U. S. 190 (2016), 
+which in the interim had held that Miller applied retroac­
+tively on collateral review. According to Jones, in order to 
+impose a life-without-parole sentence on a defendant who 
+committed a murder when he or she was under 18, the sen­
+tencer must make a separate factual fnding that the defend­
+ant is permanently incorrigible. The Mississippi Court of 
+Appeals rejected Jones's argument, relying on this Court's 
+express statement in Montgomery that “ `Miller did not re­
+quire trial courts to make a fnding of fact regarding a child's 
+incorrigibility.' ” 285 So. 3d 626, 632 (2017) (quoting Mont­
+gomery, 577 U. S., at 211). 
+In light of disagreement in state and federal courts about 
+how to interpret Miller and Montgomery, we granted certio­
+rari. 589 U. S. ––– (2020). Compare, e. g., Malvo v. Ma­
+thena, 893 F. 3d 265 (CA4 2018), Commonwealth v. Batts, 640 
+Pa. 401, 163 A. 3d 410 (2017), and Veal v. State, 298 Ga. 691, 
+784 S. E. 2d 403 (2016), with, e. g., United States v. Sparks, 
+941 F. 3d 748 (CA5 2019), People v. Skinner, 502 Mich. 89, 
+917 N. W. 2d 292 (2018), and State v. Ramos, 187 Wash. 2d 
+420, 387 P. 3d 650 (2017). 
+II 
+According to Jones, a sentencer's discretion to impose a 
+sentence less than life without parole does not alone satisfy 
+Miller. In Jones's view, a sentencer who imposes a life­
+without-parole sentence must also either (i) make a separate 
+factual fnding of permanent incorrigibility, or (ii) at least 
+provide an on-the-record sentencing explanation with an 
+“implicit fnding” of permanent incorrigibility. Tr. of Oral 
+Arg. 32; see id., at 6, 14. 
+As we will explain, the Court has already ruled that a 
+separate factual fnding of permanent incorrigibility is not 
+required. In Montgomery, the Court unequivocally stated 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+105 
+Opinion of the Court 
+that “Miller did not impose a formal factfnding require­
+ment” and added that “a fnding of fact regarding a child's 
+incorrigibility . . . is not required.” 577 U. S., at 211. In a 
+case involving an individual who was under 18 when he or 
+she committed a homicide, a State's discretionary sentencing 
+system is both constitutionally necessary and constitution­
+ally suffcient.1 
+A 
+In 2004, the year that Jones murdered his grandfather, 
+about 16,000 individuals committed a homicide in the United 
+States. See Dept. of Justice, Federal Bureau of Investiga­
+tion, Crime in the United States 2004, Murder Offenders by 
+Age, Sex, and Race 17 (Table 2.5). About 850 of the individ­
+uals who committed a homicide were known to be under 18— 
+meaning that, on average, more than two homicides were 
+committed every day by individuals under 18. Ibid. 
+The States authorize strict punishments for homicide, in­
+cluding for homicides committed by individuals under 18. 
+But this Court has held that sentencing an offender who was 
+under 18 at the time of the crime raises special constitu­
+tional considerations. 
+Ratifed in 1791, the Eighth Amendment provides that 
+“cruel and unusual punishments” shall not be “inficted.” 
+Ratifed in 1868, the Fourteenth Amendment incorporates 
+the Cruel and Unusual Punishments Clause against the 
+States. 
+In a series of Eighth Amendment cases applying the Cruel 
+and Unusual Punishments Clause, this Court has stated that 
+youth matters in sentencing. In Roper v. Simmons, 543 
+1 Both Miller and Montgomery generated vigorous dissents. The dis­
+sents in Miller stated that the Eighth Amendment does not prohibit man­
+datory life-without-parole sentences and asserted that the Court's decision 
+contravened this Court's precedents. See 567 U. S., at 493–502 (Rob­
+erts, C. J., dissenting); id., at 502–509 (Thomas, J., dissenting); id., at 509– 
+515 (Alito, J., dissenting). The lead dissent in Montgomery argued that 
+Miller should not apply retroactively on collateral review. 577 U. S., at 
+224–227 (Scalia, J., dissenting). 
+Page Proof Pending Publication
+
+106 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+U. S. 551 (2005), the Court concluded that the Eighth Amend­
+ment prohibits capital punishment for murderers who were 
+under 18 at the time of their crimes. And in Graham v. 
+Florida, 560 U. S. 48 (2010), the Court held that the Eighth 
+Amendment prohibits life without parole for offenders 
+who were under 18 and committed nonhomicide offenses. 
+Importantly, however, Graham did not prohibit life with­
+out parole for offenders who were under 18 and committed 
+homicide. The Graham Court stated: “There is a line be­
+tween homicide and other serious violent offenses against the 
+individual.” Id., at 69 (internal quotation marks omitted). 
+And then in Miller in 2012, the Court allowed life-without­
+parole sentences for defendants who committed homicide 
+when they were under 18, but only so long as the sentence 
+is not mandatory—that is, only so long as the sentencer has 
+discretion to “consider the mitigating qualities of youth” and 
+impose a lesser punishment. 567 U. S., at 476 (internal 
+quotation marks omitted). Four years later, Montgomery 
+held that Miller applied retroactively to cases on collateral 
+review. 577 U. S., at 206, 212. 
+Jones argues that Miller requires more than just a discre­
+tionary sentencing procedure. According to Jones, the sen­
+tencer must also make a separate factual fnding of perma­
+nent incorrigibility before sentencing a murderer under 18 
+to life without parole. 
+The problem for Jones is that Miller and Montgomery 
+squarely rejected such a requirement. Miller mandated 
+“only that a sentencer follow a certain process—considering 
+an offender's youth and attendant characteristics—before 
+imposing” a life-without-parole sentence. 567 U. S., at 483. 
+Montgomery then fatly stated that “Miller did not impose 
+a formal factfnding requirement” and that “a fnding of fact 
+regarding a child's incorrigibility . . . is not required.” 577 
+U. S., at 211.2 
+2 The key paragraph from Montgomery is as follows: 
+“Louisiana suggests that Miller cannot have made a constitutional dis­
+tinction between children whose crimes refect transient immaturity and 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+107 
+Opinion of the Court 
+Notwithstanding that clear language in Miller and Mont­
+gomery, Jones advances three distinct arguments for why 
+this Court should require a sentencer to make a fnding of 
+permanent incorrigibility before sentencing a murderer 
+under 18 to life without parole. 
+First, Jones analogizes to cases where the Court has rec­
+ognized certain eligibility criteria, such as sanity or a lack of 
+intellectual disability, that must be met before an offender 
+can be sentenced to death. See Ford v. Wainwright, 477 
+U. S. 399 (1986); Atkins v. Virginia, 536 U. S. 304 (2002). 
+Jones argues that the Constitution similarly requires a sen­
+tencer to fnd permanent incorrigibility before sentencing a 
+murderer under 18 to life without parole. 
+The State responds that permanent incorrigibility is not 
+an eligibility criterion akin to sanity or a lack of intellectual 
+disability. We agree with the State. For one thing, the 
+Court has recognized that it “is diffcult even for expert psy­
+chologists to differentiate between the juvenile offender 
+whose crime refects unfortunate yet transient immaturity, 
+and the rare juvenile offender whose crime refects irrepara­
+ble corruption.” Roper, 543 U. S., at 573. In addition, 
+when the Court has established such an eligibility criterion, 
+those whose crimes refect irreparable corruption because Miller did not 
+require trial courts to make a fnding of fact regarding a child's incorrigi­
+bility. That this fnding is not required, however, speaks only to the de­
+gree of procedure Miller mandated in order to implement its substantive 
+guarantee. When a new substantive rule of constitutional law is estab­
+lished, this Court is careful to limit the scope of any attendant procedural 
+requirement to avoid intruding more than necessary upon the States' sov­
+ereign administration of their criminal justice systems. See Ford v. 
+Wainwright, 477 U. S. 399, 416–417 (1986) (`[W]e leave to the State[s] the 
+task of developing appropriate ways to enforce the constitutional restric­
+tion upon [their] execution of sentences'). Fidelity to this important prin­
+ciple of federalism, however, should not be construed to demean the sub­
+stantive character of the federal right at issue. That Miller did not 
+impose a formal factfnding requirement does not leave States free to sen­
+tence a child whose crime refects transient immaturity to life without 
+parole. To the contrary, Miller established that this punishment is dis­
+proportionate under the Eighth Amendment.” 577 U. S., at 211. 
+Page Proof Pending Publication
+
+108 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+the Court has considered whether “ `objective indicia of soci­
+ety's standards, as expressed in legislative enactments and 
+state practice,' ” demonstrated a “national consensus” in 
+favor of the criterion. Graham, 560 U. S., at 61 (quoting 
+Roper, 543 U. S., at 563). But Miller did not identify a sin­
+gle State that, as of that time, made permanent incorrigibil­
+ity an eligibility criterion for life-without-parole sentences 
+imposed on murderers under 18. 
+Given those two points, it comes as no surprise that Miller 
+declined to characterize permanent incorrigibility as such an 
+eligibility criterion. Rather, Miller repeatedly described 
+youth as a sentencing factor akin to a mitigating circum­
+stance. And Miller in turn required a sentencing procedure 
+similar to the procedure that this Court has required for the 
+individualized consideration of mitigating circumstances in 
+capital cases such as Woodson v. North Carolina, 428 U. S. 
+280, 303–305 (1976) (plurality opinion), Lockett v. Ohio, 438 
+U. S. 586, 597–609 (1978) (plurality opinion), and Eddings v. 
+Oklahoma, 455 U. S. 104, 113–115 (1982). Those capital 
+cases require sentencers to consider relevant mitigating cir­
+cumstances when deciding whether to impose the death pen­
+alty. And those cases afford sentencers wide discretion in 
+determining “the weight to be given relevant mitigating evi­
+dence.” Id., at 114–115. But those cases do not require the 
+sentencer to make any particular factual fnding regarding 
+those mitigating circumstances. 
+Repeatedly citing Woodson, Lockett, and Eddings, the 
+Miller Court stated that “a judge or jury must have the op­
+portunity to consider” the defendant's youth and must have 
+“discretion to impose a different punishment” than life with­
+out parole. 567 U. S., at 489; id., at 465; see id., at 470, 476, 
+483. Stated otherwise, the Miller Court mandated “only 
+that a sentencer follow a certain process—considering an of­
+fender's youth and attendant characteristics—before impos­
+ing” a life-without-parole sentence. Id., at 483. In that 
+process, the sentencer will consider the murderer's “dimin­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+109 
+Opinion of the Court 
+ished culpability and heightened capacity for change.” Id., 
+at 479. That sentencing procedure ensures that the sen­
+tencer affords individualized “consideration” to, among other 
+things, the defendant's “chronological age and its hallmark 
+features.” Id., at 477. 
+To be sure, Miller also cited Roper and Graham. 567 
+U. S., at 471–475. Roper barred capital punishment for of­
+fenders under 18. And Graham barred life without parole 
+for offenders under 18 who committed non-homicide offenses. 
+But Miller did not cite those cases to require a fnding of 
+permanent incorrigibility or to impose a categorical bar 
+against life without parole for murderers under 18. We 
+know that because Miller said so: “Our decision does not 
+categorically bar a penalty for a class of offenders or type of 
+crime—as, for example, we did in Roper or Graham.” 567 
+U. S., at 483. Instead, Miller cited Roper and Graham for 
+a simple proposition: Youth matters in sentencing. And be­
+cause youth matters, Miller held that a sentencer must have 
+discretion to consider youth before imposing a life-without­
+parole sentence, just as a capital sentencer must have discre­
+tion to consider other mitigating factors before imposing a 
+death sentence. 
+In short, Miller followed the Court's many death penalty 
+cases and required that a sentencer consider youth as a 
+mitigating factor when deciding whether to impose a 
+life-without-parole sentence. Miller did not require the 
+sentencer to make a separate fnding of permanent incorrigi­
+bility before imposing such a sentence. And Montgomery 
+did not purport to add to Miller's requirements.3 
+3 If permanent incorrigibility were a factual prerequisite to a life­
+without-parole sentence, this Court's Sixth Amendment precedents might 
+require that a jury, not a judge, make such a fnding. See Ring v. Ari­
+zona, 536 U. S. 584 (2002); Apprendi v. New Jersey, 530 U. S. 466 (2000). 
+If we were to rule for Jones here, the next wave of litigation would likely 
+concern the scope of the jury right. The fact that neither Miller nor 
+Montgomery even mentioned the Sixth Amendment is further reason to 
+Page Proof Pending Publication
+
+110 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+Second, Jones contends that the Montgomery Court must 
+nonetheless have assumed that a separate factual fnding of 
+permanent incorrigibility was necessary because Montgom­
+ery deemed Miller a substantive holding for purposes of 
+applying Miller retroactively on collateral review. See 
+Teague v. Lane, 489 U. S. 288, 310–311 (1989) (plurality 
+opinion). 
+In advancing that argument, Jones relies on language 
+in Montgomery that described Miller as permitting life­
+without-parole sentences only for “those whose crimes re­
+fect permanent incorrigibility,” rather than “transient im­
+maturity.” 577 U. S., at 209. In other words, because the 
+Montgomery Court deemed Miller to be a substantive hold­
+ing, and because Montgomery said that life without parole 
+would be reserved for the permanently incorrigible, Jones 
+argues that the Montgomery Court must have envisioned a 
+separate factual fnding of permanent incorrigibility, not just 
+a discretionary sentencing procedure where youth would be 
+considered. 
+That is an incorrect interpretation of Miller and Mont­
+gomery. We know as much because Montgomery said 
+as much. To reiterate, the Montgomery Court explicitly 
+stated that “a fnding of fact regarding a child's incorrigibil­
+ity . . . is not required.” 577 U. S., at 211. 
+To break it down further: Miller required a discretionary 
+sentencing procedure. The Court stated that a mandatory 
+life-without-parole sentence for an offender under 18 “poses 
+too great a risk of disproportionate punishment.” 567 U. S., 
+at 479. Despite the procedural function of Miller's rule, 
+Montgomery held that the Miller rule was substantive for 
+retroactivity purposes and therefore applied retroactively on 
+collateral review. 577 U. S., at 206, 212.4 
+But in making 
+doubt that those cases implicitly required a fnding of permanent incorrigi­
+bility by the sentencer. 
+4 As the Court has stated in cases both before and after Montgomery, 
+the Court determines whether a rule is substantive or procedural for ret­
+roactivity purposes “by considering the function of the rule” itself—not 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+111 
+Opinion of the Court 
+the rule retroactive, the Montgomery Court unsurprisingly 
+declined to impose new requirements not already imposed by 
+Miller. As Montgomery itself explained, the Court granted 
+certiorari in that case not to consider whether the rule an­
+nounced in Miller should be expanded, but rather simply to 
+decide whether Miller's “holding is retroactive to juvenile 
+offenders whose convictions and sentences were fnal when 
+Miller was decided.” 577 U. S., at 194. On the question of 
+what Miller required, Montgomery was clear: “A hearing 
+where youth and its attendant characteristics are considered 
+as sentencing factors is necessary to separate those juveniles 
+who may be sentenced to life without parole from those who 
+may not.” Id., at 210 (internal quotation marks omitted). 
+But a separate fnding of permanent incorrigibility “is not 
+required.” Id., at 211. 
+The key assumption of both Miller and Montgomery was 
+that discretionary sentencing allows the sentencer to con­
+sider the defendant's youth, and thereby helps ensure that 
+life-without-parole sentences are imposed only in cases 
+“by asking whether the constitutional right underlying the new rule is 
+substantive or procedural.” Welch v. United States, 578 U. S. 120, 130– 
+131 (2016). For purposes of Teague v. Lane, 489 U. S. 288 (1989), a rule is 
+procedural if it regulates “ `only the manner of determining the defendant's 
+culpability.' ” Welch, 578 U. S., at 129 (quoting Schriro v. Summerlin, 542 
+U. S. 348, 353 (2004); emphasis deleted). A rule is substantive and applies 
+retroactively on collateral review, by contrast, if it “ `alters the range of 
+conduct or the class of persons that the law punishes.' ” Welch, 578 U. S., 
+at 129 (quoting Summerlin, 542 U. S., at 353). As the Court's post-
+Montgomery decision in Welch already indicates, to the extent that Mont­
+gomery's application of the Teague standard is in tension with the Court's 
+retroactivity precedents that both pre-date and post-date Montgomery, 
+those retroactivity precedents—and not Montgomery—must guide the de­
+termination of whether rules other than Miller are substantive. See 
+Welch, 578 U. S. 120; Summerlin, 542 U. S. 348; Lambrix v. Singletary, 
+520 U. S. 518 (1997); Saffe v. Parks, 494 U. S. 484 (1990). To be clear, 
+however, our decision today does not disturb Montgomery's holding that 
+Miller applies retroactively on collateral review. By now, most offenders 
+who could seek collateral review as a result of Montgomery have done 
+so and, if eligible, have received new discretionary sentences under Miller. 
+Page Proof Pending Publication
+
+112 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+where that sentence is appropriate in light of the defendant's 
+age. If the Miller or Montgomery Court wanted to require 
+sentencers to also make a factual fnding of permanent incor­
+rigibility, the Court easily could have said so—and surely 
+would have said so. But the Court did not say that, or any­
+thing like it. On the contrary, the Montgomery Court de­
+clared just the opposite: that the sentencer need not make 
+such a separate factual fnding of permanent incorrigibility. 
+In short, Jones's Montgomery-based argument for requir­
+ing a fnding of permanent incorrigibility is unavailing be­
+cause Montgomery explicitly stated that “Miller did not im­
+pose a formal factfnding requirement” and that “a fnding of 
+fact regarding a child's incorrigibility . . . is not required.” 
+Montgomery, 577 U. S., at 211. 
+Third, Jones relatedly argues that Miller and Montgom­
+ery sought to ensure that life without parole for murderers 
+under 18 would be relatively rare. According to Jones, a 
+separate factual fnding of permanent incorrigibility is neces­
+sary to achieve that goal. 
+But in Miller, the Court stated that a discretionary sen­
+tencing procedure—where the sentencer can consider the 
+defendant's youth and has discretion to impose a lesser sen­
+tence than life without parole—would itself help make life­
+without-parole sentences “relatively rar[e]” for murderers 
+under 18. 567 U. S., at 484, n. 10. 
+Importantly, in concluding that a discretionary sentencing 
+procedure would help make life-without-parole sentences rel­
+atively rare, the Court relied on data, not speculation. The 
+Court pointed to statistics from 15 States that used discre­
+tionary sentencing regimes to show that, “when given the 
+choice, sentencers impose life without parole on children 
+relatively rarely.” Ibid.5 
+In light of those statistics, the 
+5 See Cal. Penal Code Ann. § 190.5 (West 2014); Ga. Code Ann. § 16–5–1 
+(2011), § 17–10–31 (2013); Ind. Code § 35–50–2–3 (2009); Me. Rev. Stat. 
+Ann., Tit. 17–A, § 1251 (2006); Md. Crim. Law Code Ann. §§ 2–201 to 2– 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+113 
+Opinion of the Court 
+Court reasoned that a discretionary sentencing procedure 
+would make life-without-parole sentences relatively rare for 
+juvenile offenders. But the Court did not suggest that the 
+States with discretionary sentencing regimes also required 
+a separate factual fnding of permanent incorrigibility, or 
+that such a fnding was necessary to make life-without-parole 
+sentences for juvenile offenders relatively rare. Therefore, 
+to remain true to Miller's reasoning, we cannot now require 
+a separate factual finding of permanent incorrigibility. 
+(Moreover, to reiterate, Montgomery explicitly stated that 
+such a fnding is not required.) 
+In sum, the Court has unequivocally stated that a separate 
+factual fnding of permanent incorrigibility is not required 
+before a sentencer imposes a life-without-parole sentence on 
+a murderer under 18. To borrow the apt words of the Michi­
+gan Supreme Court: “Given that Montgomery expressly held 
+that `Miller did not require trial courts to make a fnding of 
+fact regarding a child's incorrigibility,' we likewise hold that 
+Miller does not require trial courts to make a fnding of fact 
+regarding a child's incorrigibility.” People v. Skinner, 502 
+Mich. 89, 122, 917 N. W. 2d 292, 309 (2018) (citation omitted). 
+B 
+Even if a separate factual fnding of permanent incorrigi­
+bility is not required, Jones alternatively contends that a sen­
+tencer must at least provide an on-the-record sentencing 
+explanation with an “implicit fnding” of permanent in­
+corrigibility. Tr. of Oral Arg. 32; see id., at 6, 14. Jones 
+203, 2–304 (2012); Nev. Rev. Stat. § 200.030 (2012); N. M. Stat. Ann. §§ 31– 
+18–13, 31–18–14, 31–18–15.2 (2010); N. D. Cent. Code Ann. §§12.1–32–01, 
+12.1–32–09.1 (2012); Okla. Stat., Tit. 21, §§ 13.1, 701.9 (2011); R. I. Gen. 
+Laws §11–23–2 (2002); S. C. Code Ann. §16–3–20 (2015); Tenn. Code Ann. 
+§§ 39–13–202, 39–13–204, 39–13–207 (2018); Utah Code §§ 76–3–206, 76–3– 
+207 (2012); W. Va. Code Ann. § 62–3–15 (Lexis 2014); Wis. Stat. § 939.50 
+(2005), § 973.014 (2007). 
+Page Proof Pending Publication
+
+114 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+argues that such an explanation is necessary to ensure that 
+the sentencer actually considers the defendant's youth. And 
+Jones further asserts that the sentencing judge did not pro­
+vide such an explanation at his resentencing. 
+We reject Jones's alternative argument because an on-the­
+record sentencing explanation with an implicit fnding of per­
+manent incorrigibility (i) is not necessary to ensure that a 
+sentencer considers a defendant's youth, (ii) is not required 
+by or consistent with Miller, (iii) is not required by or con­
+sistent with this Court's analogous death penalty precedents, 
+and (iv) is not dictated by any consistent historical or con­
+temporary sentencing practice in the States. 
+First, and most fundamentally, an on-the-record sentenc­
+ing explanation is not necessary to ensure that a sentencer 
+considers a defendant's youth. Jones's argument to the con­
+trary rests on the assumption that meaningful daylight ex­
+ists between (i) a sentencer's discretion to consider youth, 
+and (ii) the sentencer's actual consideration of youth. But 
+if the sentencer has discretion to consider the defendant's 
+youth, the sentencer necessarily will consider the defend­
+ant's youth, especially if defense counsel advances an argu­
+ment based on the defendant's youth. Faced with a con­
+victed murderer who was under 18 at the time of the offense 
+and with defense arguments focused on the defendant's 
+youth, it would be all but impossible for a sentencer to avoid 
+considering that mitigating factor.6 
+6 If defense counsel fails to make the sentencer aware of the defendant's 
+youth, it is theoretically conceivable (albeit still exceedingly unlikely in 
+the real world) that the sentencer might somehow not be aware of the 
+defendant's youth. But in that highly unlikely scenario, the defendant 
+may have a potential ineffective-assistance-of-counsel claim, not a Miller 
+claim—just as defense counsel's failure to raise relevant mitigating circum­
+stances in a death penalty sentencing proceeding can constitute a potential 
+ineffective-assistance-of-counsel problem, not a Woodson/Lockett/Eddings 
+violation. Cf. Wiggins v. Smith, 539 U. S. 510, 533–538 (2003) (counsel in 
+capital case was ineffective for failing to investigate and present mitigat­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+115 
+Opinion of the Court 
+It is true that one sentencer may weigh the defendant's 
+youth differently than another sentencer or an appellate 
+court would, given the mix of all the facts and circumstances 
+in a specifc case. Some sentencers may decide that a de­
+fendant's youth supports a sentence less than life without 
+parole. Other sentencers presented with the same facts 
+might decide that life without parole remains appropriate 
+despite the defendant's youth. But the key point remains 
+that, in a case involving a murderer under 18, a sentencer 
+cannot avoid considering the defendant's youth if the sen­
+tencer has discretion to consider that mitigating factor.7 
+Second, turning to precedent, an on-the-record sentencing 
+explanation with an implicit fnding of permanent incorrigi­
+bility is not required by or consistent with Miller. The 
+Court's thorough opinion in Miller did not even hint at re­
+quiring an on-the-record sentencing explanation with an 
+implicit fnding of permanent incorrigibility. Miller high­
+lighted 15 existing discretionary state sentencing systems as 
+examples of what was missing in the mandatory Alabama 
+regime before the Court in that case. 567 U. S., at 484, n. 10. 
+As the Court explained, those discretionary sentencing re­
+gimes ensured individualized consideration of youth. 
+ing evidence at sentencing); Williams v. Taylor, 529 U. S. 362, 395–398 
+(2000) (same). 
+7 This Court's death penalty cases recognize a potential Eighth Amend­
+ment claim if the sentencer expressly refuses as a matter of law to con­
+sider relevant mitigating circumstances. See Eddings v. Oklahoma, 455 
+U. S. 104, 114–115 (1982). By analogy here, if a sentencer considering life 
+without parole for a murderer who was under 18 expressly refuses as a 
+matter of law to consider the defendant's youth (as opposed to, for exam­
+ple, deeming the defendant's youth to be outweighed by other factors or 
+deeming the defendant's youth to be an insuffcient reason to support a 
+lesser sentence under the facts of the case), then the defendant might be 
+able to raise an Eighth Amendment claim under the Court's precedents. 
+In any event, we need not explore that possibility because the record here 
+does not refect that the sentencing judge refused as a matter of law to 
+consider Jones's youth. 
+Page Proof Pending Publication
+
+116 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+But the Court did not suggest that those discretionary 
+sentencing regimes required some kind of sentencing expla­
+nation. Again, if the Miller Court believed that a sentenc­
+ing explanation with an implicit fnding of permanent incorri­
+gibility was constitutionally necessary, the Court easily could 
+have and surely would have said so. But Miller did not say 
+a word about requiring some kind of particular sentencing 
+explanation with an implicit fnding of permanent incorrigi­
+bility, as Montgomery later confrmed. 
+Third, and just as telling, an on-the-record sentencing ex­
+planation with an implicit fnding of permanent incorrigibil­
+ity is not required by or consistent with this Court's death 
+penalty cases. Those cases demonstrate that an on-the­
+record sentencing explanation is not necessary to ensure that 
+the sentencer considers relevant mitigating circumstances. 
+In a series of capital cases over the past 45 years, the 
+Court has required the sentencer to consider mitigating cir­
+cumstances when deciding whether to impose the death pen­
+alty. See Woodson, 428 U. S., at 303–305 (plurality opinion); 
+Lockett, 438 U. S., at 597–609 (plurality opinion); Eddings, 
+455 U. S., at 113–115; see also Tennard v. Dretke, 542 U. S. 
+274, 285 (2004); Penry v. Lynaugh, 492 U. S. 302, 318–319 
+(1989). 
+But the Court has never required an on-the-record sen­
+tencing explanation or an implicit fnding regarding those 
+mitigating circumstances. The reason is evident: Under the 
+discretionary death penalty sentencing procedure required 
+by cases such as Woodson, Lockett, and Eddings, the sen­
+tencer will necessarily consider relevant mitigating circum­
+stances. A sentencing explanation is not necessary to en­
+sure that the sentencer in death penalty cases considers the 
+relevant mitigating circumstances. It follows that a sen­
+tencing explanation is likewise not necessary to ensure that 
+the sentencer in juvenile life-without-parole cases considers 
+the defendant's youth. 
+Because the Constitution does not require an on-the­
+record explanation of mitigating circumstances by the sen­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+117 
+Opinion of the Court 
+tencer in death penalty cases, it would be incongruous to 
+require an on-the-record explanation of the mitigating cir­
+cumstance of youth by the sentencer in life-without-parole 
+cases. Jones offers no persuasive answer for that incongru­
+ity in his argument. 
+Fourth, an on-the-record sentencing explanation with an 
+implicit fnding of permanent incorrigibility is not dictated 
+by any historical or contemporary sentencing practice in the 
+States. To be sure, when a state judge imposes a sentence 
+of imprisonment, particularly a lengthy sentence, the judge 
+often will explain both the sentence and the judge's evalua­
+tion of any mitigating circumstances. But many States tra­
+ditionally have not legally required (and some States still do 
+not legally require) on-the-record explanations by the sen­
+tencer. See, e. g., A. Campbell, Law of Sentencing § 10:5, 
+pp. 473–480 (3d ed. 2004) (hereinafter Campbell). Indeed, 
+in some States, the jury is the sentencer for certain kinds of 
+crimes, and juries typically do not supply sentencing expla­
+nations. See generally King & Noble, Felony Jury Sentenc­
+ing in Practice: A Three-State Study, 57 Vand. L. Rev. 885 
+(2004). Even when state law requires a sentencer to supply 
+reasons, many States do not impose a formulaic checklist of 
+topics or a magic-words requirement with respect to particu­
+lar mitigating circumstances. And appellate courts do not 
+necessarily reverse merely because the sentencer could have 
+said more about mitigating circumstances. See Campbell 
+477; 22A Cal. Jur. 3d, Crim. Law: Posttrial Proceedings § 408, 
+p. 234 (2017) (“[U]nless the record affrmatively refects oth­
+erwise, the trial court will be deemed to have considered the 
+relevant criteria, such as mitigating circumstances, enumer­
+ated in the sentencing rules”). 
+Those state practices matter here because, as the Court 
+explained in Montgomery, when “a new substantive rule of 
+constitutional law is established, this Court is careful to limit 
+the scope of any attendant procedural requirement to avoid 
+intruding more than necessary upon the States' sovereign 
+administration of their criminal justice systems.” 577 U. S., 
+Page Proof Pending Publication
+
+118 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+at 211. So it is here. Because Montgomery directs us to 
+“avoid intruding more than necessary” upon the States, ibid., 
+and because a discretionary sentencing procedure suffces to 
+ensure individualized consideration of a defendant's youth, 
+we should not now add still more procedural requirements. 
+In sum, Jones's alternative argument fails. The Court's 
+precedents do not require an on-the-record sentencing expla­
+nation with an implicit fnding of permanent incorrigibility. 
+III 
+The Court's decision today carefully follows both Miller 
+and Montgomery. The dissent nonetheless claims that we 
+are somehow implicitly overruling those decisions. We re­
+spectfully but frmly disagree: Today's decision does not 
+overrule Miller or Montgomery. Miller held that a State 
+may not impose a mandatory life-without-parole sentence on 
+a murderer under 18. Today's decision does not disturb that 
+holding. Montgomery later held that Miller applies retro­
+actively on collateral review. Today's decision likewise does 
+not disturb that holding. 
+We simply have a good-faith disagreement with the dissent 
+over how to interpret Miller and Montgomery. That kind 
+of debate over how to interpret relevant precedents is com­
+monplace. Here, the dissent thinks that we are unduly nar­
+rowing Miller and Montgomery. And we, by contrast, 
+think that the dissent would unduly broaden those decisions. 
+The dissent draws inferences about what, in the dissent's 
+view, Miller and Montgomery “must have done” in order for 
+the decisions to “make any sense.” Post, at 140 (opinion of 
+Sotomayor, J.). We instead rely on what Miller and Mont­
+gomery said—that is, their explicit language addressing the 
+precise question before us and defnitively rejecting any re­
+quirement of a fnding of permanent incorrigibility. 
+Notwithstanding our disagreement about whether Miller 
+and Montgomery require a fnding of permanent incorrigibil­
+ity, we and the dissent both recognize that Miller and Mont­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+119 
+Opinion of the Court 
+gomery have been consequential. Miller's discretionary 
+sentencing procedure has resulted in numerous sentences 
+less than life without parole for defendants who otherwise 
+would have received mandatory life-without-parole sen­
+tences. For example, in Miller resentencings in Mississippi 
+where Jones was convicted and sentenced, Miller has re­
+duced life-without-parole sentences for murderers under 18 
+by about 75 percent. See The Campaign for the Fair Sen­
+tencing of Youth, Tipping Point: A Majority of States Aban­
+don Life-Without-Parole Sentences for Children 7 (2018). 
+Those statistics bear out Miller's prediction: A discretionary 
+sentencing procedure has indeed helped make life-without­
+parole sentences for offenders under 18 “relatively rar[e].” 
+567 U. S., at 484, n. 10. 
+Moreover, as a result of Montgomery, many homicide of­
+fenders under 18 who received life-without-parole sentences 
+that were fnal before Miller have now obtained new sen­
+tencing proceedings and have been sentenced to less than 
+life without parole. 
+Despite the signifcant changes wrought by Miller and 
+Montgomery, the dissent now wants more—an additional 
+constitutional requirement that the sentencer must make a 
+fnding of permanent incorrigibility before sentencing a mur­
+derer under 18 to life without parole. But to reiterate, in 
+Miller and Montgomery, the Court unequivocally stated that 
+such a fnding is not required. And we will not now rewrite 
+those decisions to impose a requirement that the Court 
+twice rejected. 
+To be clear, our ruling on the legal issue presented here 
+should not be construed as agreement or disagreement with 
+the sentence imposed against Jones. As this case again 
+demonstrates, any homicide, and particularly a homicide 
+committed by an individual under 18, is a horrifc tragedy for 
+all involved and for all affected. Determining the proper 
+sentence in such a case raises profound questions of morality 
+and social policy. The States, not the federal courts, make 
+Page Proof Pending Publication
+
+120 
+JONES v. MISSISSIPPI 
+Opinion of the Court 
+those broad moral and policy judgments in the frst instance 
+when enacting their sentencing laws. And state sentencing 
+judges and juries then determine the proper sentence in indi­
+vidual cases in light of the facts and circumstances of the 
+offense, and the background of the offender. 
+Under our precedents, this Court's more limited role is 
+to safeguard the limits imposed by the Cruel and Unusual 
+Punishments Clause of the Eighth Amendment. 
+The 
+Court's precedents require a discretionary sentencing proce­
+dure in a case of this kind. The resentencing in Jones's case 
+complied with those precedents because the sentence was 
+not mandatory and the trial judge had discretion to impose 
+a lesser punishment in light of Jones's youth. Moreover, 
+this case does not properly present—and thus we do not 
+consider—any as-applied Eighth Amendment claim of dis-
+proportionality regarding Jones's sentence. See Brief for 
+United States as Amicus Curiae 23; Harmelin v. Michigan, 
+501 U. S. 957, 996–1009 (1991) (Kennedy, J., concurring in 
+part and concurring in judgment). 
+Importantly, like Miller and Montgomery, our holding 
+today does not preclude the States from imposing additional 
+sentencing limits in cases involving defendants under 18 con­
+victed of murder. States may categorically prohibit life 
+without parole for all offenders under 18. Or States may 
+require sentencers to make extra factual fndings before sen­
+tencing an offender under 18 to life without parole. Or 
+States may direct sentencers to formally explain on the rec­
+ord why a life-without-parole sentence is appropriate not­
+withstanding the defendant's youth. States may also estab­
+lish rigorous proportionality or other substantive appellate 
+review of life-without-parole sentences. All of those op­
+tions, and others, remain available to the States. See gener­
+ally J. Sutton, 51 Imperfect Solutions (2018). Indeed, many 
+States have recently adopted one or more of those reforms. 
+See, e. g., Brief for Former West Virginia Delegate John 
+Ellem et al. as Amici Curiae in Mathena v. Malvo, O. T. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+121 
+Thomas, J., concurring in judgment 
+2019, No. 18–217, pp. 29–36. But the U. S. Constitution, as 
+this Court's precedents have interpreted it, does not demand 
+those particular policy approaches. 
+Finally, our holding today is far from the last word on 
+whether Jones will receive relief from his sentence. Jones 
+contends that he has maintained a good record in prison and 
+that he is a different person now than he was when he killed 
+his grandfather. He articulates several moral and policy ar­
+guments for why he should not be forced to spend the rest 
+of his life in prison. Our decision allows Jones to present 
+those arguments to the state offcials authorized to act on 
+them, such as the state legislature, state courts, or Gover­
+nor. Those state avenues for sentencing relief remain open 
+to Jones, and they will remain open to him for years to 
+come. 
+*
+*
+* 
+We affrm the judgment of the Mississippi Court of 
+Appeals. 
+It is so ordered. 
+Justice Thomas, concurring in the judgment. 
+The Court correctly holds that the Eighth Amendment 
+does not require a fnding that a minor be permanently incor­
+rigible as a prerequisite to a sentence of life without parole. 
+But in reaching that result, the majority adopts a strained 
+reading of Montgomery v. Louisiana, 577 U. S. 190 (2016), 
+instead of outright admitting that it is irreconcilable with 
+Miller v. Alabama, 567 U. S. 460 (2012)—and the Constitu­
+tion. The better approach is to be patently clear that Mont­
+gomery was a “demonstrably erroneous” decision worthy 
+of outright rejection. Gamble v. United States, 587 U. S. 
+–––, ––– (2019) (Thomas, J., concurring). 
+I 
+Brett Jones, then 15, murdered his grandfather. At the 
+time of his trial and sentencing, Mississippi law automatically 
+Page Proof Pending Publication
+
+122 
+JONES v. MISSISSIPPI 
+Thomas, J., concurring in judgment 
+punished his crime with life without parole. A few years 
+later, however, this Court held that youthful offenders are 
+constitutionally entitled to an “individualized sentencing” 
+process. Miller, 567 U. S., at 465. The Mississippi Su­
+preme Court thus ordered a new hearing at which the judge 
+dutifully considered the factors “relevant to [Jones'] culpabil­
+ity” before again sentencing him to life without parole. 
+App. 149. 
+Jones appealed, citing yet another new decision—Mont­
+gomery—in which this Court held that Miller's rule was 
+“substantive” and hence had to be retroactively applied to 
+cases on collateral review. 577 U. S., at 212. Without more, 
+the fact that Miller was now retroactive did not help Jones, 
+as he had already received the “individualized” hearing 
+Miller required. 567 U. S., at 465. Therefore, Jones ar­
+gued that Montgomery further required the sentencing 
+judge to “make a specifc `fnding' that he is irretrievably 
+depraved, irreparably corrupt, or permanently incorrigible.” 
+285 So. 3d 626, 632 (Miss. App. 2017). That theory was not 
+necessarily a stretch—as Montgomery explained that a life­
+without-parole sentence “violates the Eighth Amendment 
+for a child whose crime refects ` “unfortunate yet transient 
+immaturity.” ' ” 
+577 U. S., at 208. But the Mississippi 
+Court of Appeals disagreed, noting that Montgomery also 
+“stated that `Miller did not require trial courts to make a 
+fnding of fact regarding a child's incorrigibility' [or] `impose 
+a formal factfnding requirement.' ” 285 So. 3d, at 632. 
+II 
+Miller and Montgomery are from the same lineage of 
+precedent that refashions the Eighth Amendment to accom­
+modate this Court's views of juvenile justice.1 
+The similari­
+1 See, e. g., Roper v. Simmons, 543 U. S. 551, 556, 578 (2005) (prohibiting 
+the execution of a (barely) juvenile murderer who had bragged that his 
+age would allow him to “ `get away with it' ”); Graham v. Florida, 560 
+U. S. 48, 74 (2010) (prohibiting life-without-parole sentences for juvenile 
+nonhomicide offenders). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+123 
+Thomas, J., concurring in judgment 
+ties end there, however, because the decisions cannot be 
+reconciled. 
+A 
+Miller announced a purely procedural rule: A State may 
+not automatically sentence a juvenile to life without parole, 
+but must instead provide an individualized sentencing proc­
+ess. In reaching this conclusion, the Court explicitly cab­
+ined its holding to cases in which the sentencer lacked “dis­
+cretion to impose a different punishment.” Miller, 567 
+U. S., at 465; accord, e. g., id., at 479–480. Were there any 
+doubt that Miller focused only on the availability of individu­
+alized sentencing, the Court stressed that it was “not cate­
+gorically bar[ring] a penalty for a class of offenders or type 
+of crime” but instead “mandat[ing] only that a sentencer fol­
+low a certain process.” Id., at 483. 
+Miller's descriptions of its procedural holding track with 
+the opinion's mode of analysis. At one point, for example, 
+Miller discussed a line of precedents that condition the death 
+penalty on an individualized sentencing process. Id., at 
+475–476. Reasoning by analogy, the Court explained that 
+“mandatory penalties” for juveniles “preclude a sentencer 
+from taking account of an offender's age and the wealth of 
+characteristics and circumstances attendant to it.” Id., at 
+476. The Court also canvassed the jurisdictions that had 
+some form of mandatory life-without-parole, id., at 482–487, 
+and nn. 9–10, 13–14, which would have been an unusual de­
+tour if the opinion were concerned with anything more than 
+nondiscretionary punishments. And it declined to “consider 
+[the] alternative argument that the Eighth Amendment re­
+quires a categorical bar on life without parole for juveniles.” 
+Id., at 479. 
+B 
+This narrow holding became inconvenient when the Court 
+decided to apply Miller retroactively to prisoners whose sen­
+tences were already fnal. Under the approach announced 
+in Teague v. Lane, 489 U. S. 288 (1989), Miller could have 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+124 
+JONES v. MISSISSIPPI 
+Thomas, J., concurring in judgment 
+been retroactive only if it were a “watershed” rule of crimi­
+nal procedure or a “substantive” rule, Beard v. Banks, 542 
+U. S. 406, 416–419, and n. 7 (2004). 
+Precedent foreclosed the frst option. Miller “mandate[d] 
+only that a sentencer follow a certain process” as a prerequi­
+site to life without parole, 567 U. S., at 483, but this directive 
+was hardly “watershed.” According to Teague, a procedural 
+rule might have a claim to watershed status if it were “ ` “im­
+plicit in the concept of ordered liberty.” ' ” Banks, 542 U. S., 
+at 417. So limited was this possibility that, in “ `the years 
+since Teague, we . . . rejected every claim that a new rule 
+satisfed the requirements for watershed status.' ” Ramos 
+v. Louisiana, 590 U. S. –––, ––– (2020) (Kavanaugh, J., con­
+curring in part). Or in more concrete terms, we repeatedly 
+suggested that a rule might be watershed only if it were akin 
+to a defendant's right to counsel as articulated in Gideon v. 
+Wainwright, 372 U. S. 335 (1963). See Banks, 542 U. S., at 
+417–418. Whatever Miller might have done, its narrow rule 
+about juvenile sentencing “ `ha[d] none of the primacy and 
+centrality of the rule adopted in Gideon.' ” Banks, 542 
+U. S., at 420. 
+Rather than accept what was plainly the case—that Miller 
+was procedural, not watershed, and thus not retroactive— 
+Montgomery proceeded to “rewrite” it into a substantive 
+rule. 577 U. S., at 224 (Scalia, J., dissenting). Despite ac­
+knowledging that “Miller's holding has a procedural compo­
+nent,” the majority explained that this procedure was actu­
+ally just a way “to implement a substantive guarantee.” 
+Id., at 209–210. This guarantee, according to Montgomery, 
+was that “all” juvenile offenders—except for a rare few 
+“whose crimes refect permanent incorrigibility”—are cate­
+gorically exempt from life without parole. Id., at 209. 
+That reimagined rule was substantive under our prece­
+dents. Substantive rules include those that “ `prohibi[t] a 
+certain category of punishment for a class of defendants be­
+cause of their status or offense.' ” Banks, 542 U. S., at 416. 
+
+Cite as: 593 U. S. 98 (2021) 
+125 
+Thomas, J., concurring in judgment 
+For example—a rule that “life without parole is an excessive 
+sentence for children whose crimes refect transient immatu­
+rity.” Montgomery, 577 U. S., at 210. Montgomery could 
+not have been clearer that its rule transcended mere pro­
+cedure: “Even if a court considers a child's age before 
+sentencing him or her to a lifetime in prison, that sentence 
+still violates the Eighth Amendment for a child whose 
+crime refects ` “unfortunate yet transient immaturity.” ' ” 
+Id., at 208. 
+The problem with this new rule is that it had little to do 
+with Miller. Through a feat of legerdemain, Montgomery 
+began by acknowledging that Miller did “ `not categorically 
+bar a penalty for a class of offenders or type of crime,' ” yet 
+just three sentences later concluded that “Miller did bar life 
+without parole . . . for all but the rarest of juvenile offenders, 
+those whose crimes refect permanent incorrigibility.” 577 
+U. S., at 209. In a similar Janus-faced demonstration, Mont­
+gomery reiterated Miller's assurance that “trial courts [need 
+not] make a fnding of fact regarding a child's incorrigibility,” 
+yet decided that “Miller drew a line between children whose 
+crimes refect transient immaturity and those rare children 
+whose crimes refect irreparable corruption.” 577 U. S., at 
+209–211.2 
+These statements cannot be reconciled. 
+2 The Court's language in this line of precedents is notable. When ad­
+dressing juvenile murderers, this Court has stated that “ `children are 
+different' ” and that courts must consider “a child's lesser culpability.” 
+Montgomery, 577 U. S., at 207–208 (emphasis added). And yet, when as­
+sessing the Court-created right of an individual of the same age to seek 
+an abortion, Members of this Court take pains to emphasize a “young 
+woman's” right to choose. See, e. g., Lambert v. Wicklund, 520 U. S. 292, 
+301 (1997) (Stevens, J., joined by Ginsburg and Breyer, JJ., concurring in 
+judgment) (emphasis added); Planned Parenthood of Southeastern Pa. v. 
+Casey, 505 U. S. 833, 899 (1992) (joint opinion of O'Connor, Kennedy, and 
+Souter, JJ.); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 
+532 (1990) (Blackmun, J., joined by Brennan and Marshall, JJ., dissenting). 
+It is curious how the Court's view of the maturity of minors ebbs and 
+fows depending on the issue. 
+Page Proof Pending Publication
+
+126 
+JONES v. MISSISSIPPI 
+Thomas, J., concurring in judgment 
+C 
+Just as the procedural rule of Miller created problems for 
+the majority in Montgomery, the substantive rule of Mont­
+gomery creates problems for the majority in this case. If 
+Montgomery is correct about the existence of a concrete 
+class of offenders who—as a matter of fundamental constitu­
+tional law—are categorically exempt from a sentence of life 
+without parole, then there must be a determination as to 
+whether Jones falls within that protected class. Otherwise, 
+the “line” Miller ostensibly “drew . . . between children 
+whose crimes refect transient immaturity and those rare 
+children whose crimes refect irreparable corruption” is more 
+fanciful than real. Montgomery, 577 U. S., at 209. 
+Sure enough, this Court has often demanded factual fnd­
+ings when it comes to other classes of criminals that this 
+Court has declared categorically exempt from certain pun­
+ishments. See, e. g., Moore v. Texas, 586 U. S. –––, ––– 
+(2019) (per curiam) (fnding that an offender “ha[d] shown 
+[that] he is a person with intellectual disability”); Madison v. 
+Alabama, 586 U. S. –––, –––, ––– – ––– (2019) (vacating and 
+remanding “for renewed consideration” of the record after a 
+state court “found [a prisoner] mentally competent” and thus 
+eligible for execution). I doubt that a majority of this Court 
+would tolerate the execution of an offender who alleges in­
+sanity or intellectual disability absent a satisfactory fnding 
+to the contrary. 
+In response, the majority suggests that insanity and in­
+tellectual disability are legitimate “eligibility criteri[a]” be­
+cause they are easy to evaluate, whereas “permanent incorri­
+gibility . . . `is diffcult even for expert psychologists to 
+[assess].' ” Ante, at 107. This notion that the former cate­
+gories are clear cut and predictable might come as news to 
+the States that have spent years chasing the ever-evolving 
+defnitions of mental incompetence promulgated by this 
+Court and its preferred experts. See, e. g., Moore, 586 U. S., 
+at ––– – –––; Moore v. Texas, 581 U. S. 1, 5–6, 8–21 (2017) 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+127 
+Thomas, J., concurring in judgment 
+(courts must heed “the force of the medical community's con­
+sensus”); Hall v. Florida, 572 U. S. 701, 724 (2014). I trust, 
+however, that future decisions will contain simple and 
+static rules. 
+D 
+Montgomery's creation of a categorical exemption for cer­
+tain offenders thus leaves us with two obvious options. 
+First, we could follow Montgomery's logic and hold that the 
+“legality” of Jones' sentence turns on whether his crime in 
+fact “refect[s] permanent incorrigibility.” 577 U. S., at 205, 
+209. Or we could just acknowledge that Montgomery had 
+no basis in law or the Constitution. 
+The majority, however, selects a third way: Overrule 
+Montgomery in substance but not in name. The opinion 
+candidly admits both that Miller's rule was “procedural” and 
+that Montgomery “ma[de] the rule retroactive.” Ante, at 
+108, 110–111. The only way to reconcile these statements 
+with the bottom-line judgment in this case—that Jones is not 
+entitled to a determination whether he falls within a consti­
+tutionally protected category of offenders—is to reject Mont­
+gomery. And sure enough, the majority does just that, albeit 
+in a footnote. See ante, at 111, n. 4 (explaining that Montgom­
+ery is “in tension” with many other decisions). But because 
+Montgomery's freewheeling approach to the law is ripe for 
+abuse, the majority's whisper is worth restating above the 
+line: Montgomery gave a good-for-one-ride ticket to a class 
+of juvenile offenders, and its errors will never be repeated. 
+Firm condemnation of Montgomery is particularly appro­
+priate because this Court is unable to fully repair the dam­
+age it has caused. Although the majority closes the door to 
+courts following Montgomery in the future, in doing so it 
+tacitly admits that the horses have already left the barn: 
+“[M]ost offenders who could seek collateral review as a re­
+sult of Montgomery have done so.” Ante, at 111, n. 4. To­
+day's judgment thus offers cold comfort to the States that 
+Page Proof Pending Publication
+
+128 
+JONES v. MISSISSIPPI 
+Thomas, J., concurring in judgment 
+have already faced the unenviable choice between “permit­
+ting juvenile homicide offenders to be considered for pa­
+role” and relitigating murder sentences long after the fact. 
+Montgomery, 577 U. S., at 212; see also id., at 226–227 
+(Scalia, J., dissenting). The least we can do is to fully own 
+up to Montgomery's sins. 
+The majority also largely leaves untouched Montgomery's 
+violation of the rule that the Constitution “ `leaves the un­
+avoidably moral question of who “deserves” a particular non-
+prohibited method of punishment to the judgment of the leg­
+islatures that authorize the penalty.' ” Miller, 567 U. S., at 
+504 (Thomas, J., dissenting). When the Eighth Amendment 
+was enacted, juveniles even younger than Jones could be 
+tried as adults, and mandatory death sentences were avail­
+able. See id., at 503, n. 2. “It is therefore implausible that 
+a [15]-year-old's . . . prison sentence—of any length, with or 
+without parole—would have been viewed as cruel and un­
+usual.” Id., at 504, n. 2. By failing to condemn Montgom­
+ery's expansion of Miller to an entire category of individuals, 
+the majority blesses yet another step “on the path to further 
+judicial displacement of the legislative role in prescribing ap­
+propriate punishment for crime.” 567 U. S., at 500 (Rob­
+erts, C. J., dissenting). 
+Finally, I would expressly reject the portion of Montgom­
+ery that “purported to constitutionalize” the substantive ex­
+ception “so that it would apply in [the petitioner's] state 
+court proceeding.” Brief for Jonathan F. Mitchell et al. as 
+Amici Curiae in Edwards v. Vannoy, O. T. 2020, No. 19– 
+5807, pp. 5–6 (emphasis deleted). Despite this Court's long­
+standing recognition that “the Constitution neither prohibits 
+nor requires retrospective effect,” Linkletter v. Walker, 381 
+U. S. 618, 629 (1965); cf. Teague, 489 U. S., at 302–310 (plural­
+ity opinion) (narrowing Linkletter even further), the Mont­
+gomery Court demanded that the Louisiana courts “recog­
+nize [Miller's] retroactive effect.” 577 U. S., at 200, 205. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+129 
+Sotomayor, J., dissenting 
+That improper intrusion on state postconviction review is 
+also worth correcting. 
+*
+*
+* 
+Today's majority labors mightily to avoid confronting the 
+tension between Miller and Montgomery. But though the 
+Court purports to leave Montgomery's holding intact, it rec­
+ognizes that Montgomery's analysis is untenable and not to 
+be repeated. It would be simpler to reject Montgomery in 
+both name and substance. 
+Justice Sotomayor, with whom Justice Breyer and 
+Justice Kagan join, dissenting. 
+Today, the Court guts Miller v. Alabama, 567 U. S. 460 
+(2012), and Montgomery v. Louisiana, 577 U. S. 190 (2016). 
+Contrary to explicit holdings in both decisions, the majority 
+claims that the Eighth Amendment permits juvenile offend­
+ers convicted of homicide to be sentenced to life without pa­
+role (LWOP) as long as “the sentence is not mandatory and 
+the sentencer therefore has discretion to impose a lesser 
+punishment.” Ante, at 100. In the Court's view, a sen­
+tencer never need determine, even implicitly, whether a ju­
+venile convicted of homicide is one of “those rare children 
+whose crimes refect irreparable corruption.” Montgomery, 
+577 U. S., at 209. Even if the juvenile's crime refects “ `un­
+fortunate yet transient immaturity,' ” Miller, 567 U. S., at 
+479, he can be sentenced to die in prison. 
+This conclusion would come as a shock to the Courts in 
+Miller and Montgomery. Miller's essential holding is that 
+“a lifetime in prison is a disproportionate sentence for all 
+but the rarest children, those whose crimes refect `irrepara­
+ble corruption.' ” Montgomery, 577 U. S., at 195 (quoting 
+Miller, 567 U. S., at 479–480). Sentencing discretion is “nec­
+essary to separate those juveniles who may be sentenced to 
+life without parole from those who may not,” Montgomery, 
+Page Proof Pending Publication
+
+130 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+577 U. S., at 210, but it is far from suffcient. A sentencer 
+must actually “make th[e] judgment” that the juvenile in 
+question is one of those rare children for whom LWOP is a 
+constitutionally permissible sentence. Miller, 567 U. S., at 
+480. The Court has thus expressly rejected the notion that 
+sentencing discretion, alone, suffces: “Even if a court consid­
+ers a child's age before sentencing him or her to a lifetime 
+in prison, that sentence still violates the Eighth Amendment 
+for a child whose crime refects unfortunate yet transient 
+immaturity.” Montgomery, 577 U. S., at 208 (internal quo­
+tation marks omitted). 
+Today, however, the Court reduces Miller to a decision 
+requiring “just a discretionary sentencing procedure where 
+youth [is] considered.” Ante, at 110. Such an abrupt break 
+from precedent demands “special justifcation.” Ramos v. 
+Louisiana, 590 U. S. –––, ––– (2020) (Kavanaugh, J., concur­
+ring in part) (internal quotation marks omitted). The Court 
+offers none. Instead, the Court attempts to circumvent 
+stare decisis principles by claiming that “[t]he Court's deci­
+sion today carefully follows both Miller and Montgomery.” 
+Ante, at 118. The Court is fooling no one. Because I can­
+not countenance the Court's abandonment of Miller and 
+Montgomery, I dissent. 
+I 
+Time and again, this Court has recognized that “children 
+are constitutionally different from adults for purposes of sen­
+tencing.” Miller, 567 U. S., at 471. In Roper v. Simmons, 
+543 U. S. 551 (2005), the Court held that the Eighth Amend­
+ment forbids sentencing children to death because “[c]apital 
+punishment must be limited to those offenders . . . whose 
+extreme culpability makes them the most deserving of exe­
+cution.” Id., at 568 (internal quotation marks omitted). 
+Juvenile offenders “cannot with reliability be classified 
+among the worst offenders” for several reasons. Id., at 569. 
+First, “as any parent knows,” and as scientifc and sociologi­
+cal studies have confrmed, juveniles are less mature and re­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+131 
+Sotomayor, J., dissenting 
+sponsible than adults, which “often result[s] in impetuous and 
+ill-considered actions and decisions.” Ibid. (internal quo­
+tation marks omitted). Second, juveniles are “more vul­
+nerable or susceptible to negative infuences and outside 
+pressures” and “have less control . . . over their own environ­
+ment.” Ibid. Finally, “the character of a juvenile” is “more 
+transitory” than that of an adult. Id., at 570. “[A]s individ­
+uals mature, the impetuousness and recklessness that may 
+dominate in younger years can subside.” Ibid. (internal 
+quotation marks omitted). Weighed against these “signa­
+ture qualities of youth,” the penological justifcations for the 
+death penalty collapse. Id., at 570–571 (internal quotation 
+marks omitted). 
+Next, in Graham v. Florida, 560 U. S. 48 (2010), this Court 
+held that “[t]he Constitution prohibits the imposition of a life 
+without parole sentence on a juvenile offender who did not 
+commit homicide.” Id., at 82. “To justify life without pa­
+role on the assumption that the juvenile offender forever will 
+be a danger to society requires the sentencer to make a judg­
+ment that the juvenile is incorrigible.” Id., at 72. But “in­
+corrigibility is inconsistent with youth.” Id., at 73 (internal 
+quotation marks omitted). Rather, “[m]aturity can lead to 
+that considered refection which is the foundation for re­
+morse, renewal, and rehabilitation.” Id., at 79. Graham 
+therefore insisted that sentencers not deprive juvenile non-
+homicide offenders “of the opportunity to achieve matu­
+rity . . . and self-recognition of human worth and potential” 
+by sentencing them to die in prison. Ibid. 
+In Miller, this Court extended Graham's logic to juveniles 
+convicted of homicide. Miller recognized that “none of what 
+[Graham] said about children . . . is crime-specifc.” 567 
+U. S., at 473. Thus, taking Graham as its “foundation 
+stone,” Miller reiterated that “the distinctive attributes of 
+youth diminish the penological justifcations for imposing the 
+harshest sentences on juvenile offenders, even when they 
+commit terrible crimes.” 567 U. S., at 470–471, n. 4, 472. 
+Page Proof Pending Publication
+
+132 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+Miller emphasized that LWOP is an “ `especially harsh pun­
+ishment for a juvenile.' ” Id., at 475 (quoting Graham, 560 
+U. S., at 70). “Imprisoning an offender until he dies alters 
+the remainder of his life `by a forfeiture that is irrevocable.' ” 
+567 U. S., at 474–475 (quoting Graham, 560 U. S., at 69). It 
+is the “denial of hope” itself. Id., at 70 (internal quotation 
+marks omitted). 
+Miller stopped short of prohibiting LWOP for all juveniles 
+convicted of homicide. Instead, it required sentencers to 
+distinguish “between the juvenile offender whose crime re­
+fects unfortunate and transient immaturity, and the rare ju­
+venile offender whose crime refects irreparable corruption.” 
+567 U. S., at 479–480 (internal quotation marks omitted). 
+Only those rare few in the latter category are constitution­
+ally eligible for LWOP under Miller. As such, before impos­
+ing a sentence of LWOP, a sentencer must actually “make 
+that judgment,” and make it correctly. Id., at 480; see 
+Adams v. Alabama, 578 U. S. 994, 999 (2016) (Sotomayor, 
+J., concurring in decision to grant, vacate, and remand). 
+Finally, in Montgomery, this Court confrmed the substan­
+tive nature of Miller's prohibition on LWOP for most juve­
+niles. Montgomery held that Miller applies retroactively in 
+cases on collateral review because it “rendered life without 
+parole an unconstitutional penalty for . . . juvenile offenders 
+whose crimes refect the transient immaturity of youth.” 
+577 U. S., at 208. Under the retroactivity doctrine in Teague 
+v. Lane, 489 U. S. 288 (1989), a new constitutional rule is 
+considered “substantive,” and thus retroactive, if it “alters 
+the range of conduct or the class of persons that the law 
+punishes.” Montgomery, 577 U. S., at 206 (internal quota­
+tion marks omitted); see Teague, 489 U. S., at 311 (plurality 
+opinion). A procedural rule, on the other hand, “regulate[s] 
+only the manner of determining the defendant's culpability.” 
+Montgomery, 577 U. S., at 206 (emphasis deleted; internal 
+quotation marks omitted). Such rules generally have not 
+applied retroactively. Id., at 198. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+133 
+Sotomayor, J., dissenting 
+Montgomery recognized that Miller “has a procedural 
+component,” in that “[a] hearing where `youth and its attend­
+ant characteristics' are considered as sentencing factors is 
+necessary to separate those juveniles who may be sentenced 
+to life without parole from those who may not.” 577 U. S., 
+at 209–210 (quoting Miller, 567 U. S., at 465). The Court 
+made clear, however, that “[t]he hearing does not replace . . . 
+Miller's substantive holding that life without parole is an 
+excessive sentence for children whose crimes refect tran­
+sient immaturity.” 577 U. S., at 210. Rather, the hearing 
+“gives effect” to Miller's prohibition on LWOP by “en­
+abl[ing] a prisoner to show that he falls within the category 
+of persons whom the law may no longer punish [with 
+LWOP].” 577 U. S., at 210. Thus, under Miller, juvenile 
+offenders “must be given the opportunity to show their 
+crime did not refect irreparable corruption; and, if it did not, 
+their hope for some years of life outside prison walls must 
+be restored.” 577 U. S., at 213. 
+II 
+A 
+Today, the Court distorts Miller and Montgomery beyond 
+recognition. According to the majority, “a State's discre­
+tionary sentencing system is both constitutionally necessary 
+and constitutionally suffcient” for a State to sentence a juve­
+nile convicted of homicide to LWOP. Ante, at 105. “[S]o 
+long as the sentencer has discretion to `consider the mitigat­
+ing qualities of youth' and impose a lesser punishment,” any 
+juvenile convicted of homicide may be sentenced to LWOP, 
+even if his crime refects transient immaturity. Ante, at 106 
+(quoting Miller, 567 U. S., at 476). It does not matter 
+whether the sentencer meaningfully considers youth: The 
+Court assumes it will, see ante, at 114, but ultimately, the 
+mere existence of “a discretionary sentencing procedure suf­
+fces,” ante, at 118. 
+Page Proof Pending Publication
+
+134 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+The Court rests its conclusion on Montgomery's modest 
+statement that “Miller did not impose a formal factfnding 
+requirement,” and so “a fnding of fact regarding a child's 
+incorrigibility . . . is not required.” 577 U. S., at 211. This 
+statement is the linchpin of the Court's opinion. See ante, 
+at 101, 105, 106, 110–113. As the Court quietly admits in a 
+footnote, however, Montgomery went on to clarify that the 
+fact “[t]hat Miller did not impose a formal factfnding re­
+quirement does not leave States free to sentence a child 
+whose crime refects transient immaturity to life without pa­
+role. To the contrary, Miller established that this punish­
+ment is disproportionate under the Eighth Amendment.” 
+Montgomery, 577 U. S., at 211; see ante, at 106–107, n. 2 
+(quoting the same). 
+Montgomery was equally explicit elsewhere: “Miller . . . 
+did more than require a sentencer to consider a juvenile of­
+fender's youth before imposing life without parole.” 577 
+U. S., at 208. Sentencing discretion and “[a] hearing where 
+`youth and its attendant characteristics' are considered as 
+sentencing factors” are necessary to “giv[e] effect to Miller's 
+substantive holding that life without parole is an excessive 
+sentence for children whose crimes refect transient immatu­
+rity,” but they “d[o] not replace” it. Id., at 210. “Even if a 
+court considers a child's age before sentencing him or her to 
+a lifetime in prison, that sentence still violates the Eighth 
+Amendment for a child whose crime refects ` “unfortunate 
+yet transient immaturity.” ' ” Id., at 208. If a juvenile of­
+fender's crime “did not refect irreparable corruption,” his 
+“hope for some years of life outside prison walls must be 
+restored.” Id., at 213. The Court today never addresses 
+Montgomery's clear articulation of Miller's essential holding. 
+The lone statement on which the Court fxates recognizes 
+only that Miller does not mandate a particular procedure for 
+considering a defendant's youth or explaining the sentencer's 
+decision. Miller certainly does not require sentencers to in­
+voke any magic words. Using this procedural fexibility, 
+States have adopted different approaches to Miller's inquiry. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+135 
+Sotomayor, J., dissenting 
+For instance, in some States, the prosecution must prove 
+that a juvenile offender is permanently incorrigible beyond 
+a reasonable doubt; in others, the sentencing judge must 
+make a formal fnding of irreparable corruption on the rec­
+ord. See Brief for American Bar Association as Amicus 
+Curiae 14–15, 19–21. As the Court correctly notes, Miller 
+does not require any one of “those particular policy ap­
+proaches.” Ante, at 121. 
+What is necessary, however, is “that a sentencer decide 
+whether the juvenile offender before it is a child whose 
+crimes refect transient immaturity or is one of those rare 
+children whose crimes reflect irreparable corruption.” 
+Tatum v. Arizona, 580 U. S. 952, 954 (2016) (Sotomayor, J., 
+concurring in decision to grant, vacate, and remand) (inter­
+nal quotation marks omitted). That is all petitioner Brett 
+Jones seeks. See Tr. of Oral Arg. 6 (“On the most funda­
+mental level . . . what we need is a sentencing judge who 
+understands that permanent incorrigibility is the dispositive 
+rule and determines whether the defendant fts within that 
+rule. And there are any number of ways that it could be 
+done”); Brief for Petitioner 31 (challenging the “failure to 
+fnd in any form whether Brett is permanently incorrigi­
+ble”). As Justice Thomas recognizes, “there must be a de­
+termination as to whether Jones falls within th[e] protected 
+class” of children who are ineligible for LWOP. Ante, at 126 
+(opinion concurring in judgment). Otherwise, the line be­
+tween those who may be sentenced to LWOP and those who 
+may not “is more fanciful than real.” Ibid. 
+The Court attempts to paper over its mischaracterization 
+of Miller and Montgomery in several ways. First, it claims 
+that Miller barred only “mandatory life-without-parole sen­
+tences,” not “discretionary life-without-parole sentences.” 
+Ante, at 103. Miller did prohibit mandatory LWOP sen­
+tences for juveniles. See 567 U. S., at 465. To say that Mil­
+ler is limited to mandatory LWOP sentences, however, is to 
+ignore half of its reasoning. Miller relied on “the confuence 
+of . . . two lines of precedent.” Id., at 470. In one line of 
+Page Proof Pending Publication
+
+136 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+cases, the Court had interpreted the Eighth Amendment to 
+require that sentencers make individualized, discretionary 
+decisions when imposing the death penalty. For instance, in 
+Lockett v. Ohio, 438 U. S. 586 (1978), a plurality of the Court 
+concluded that “the sentencer, in all but the rarest kind of 
+capital case, [can]not be precluded from considering, as a mit­
+igating factor, any aspect of a defendant's character or record 
+and any of the circumstances of the offense.” Id., at 604 
+(emphasis deleted; footnote omitted). Miller explained that 
+mandatory LWOP sentences violate “individualized sentenc­
+ing cases” like Lockett because they “preclude a sentencer 
+from taking account of an offender's age and the wealth 
+of characteristics and circumstances attendant to it.” 567 
+U. S., at 476–477. 
+The Court now pretends that Miller's reasoning ended 
+there. It insists that all Miller required was “a sentencing 
+procedure similar to the procedure that this Court has re­
+quired for the individualized consideration of mitigating cir­
+cumstances in capital cases such as Woodson v. North Caro­
+lina, 428 U. S. 280, 303–305 (1976) (plurality opinion), Lockett 
+v. Ohio, 438 U. S. 586, 597–609 (1978) (plurality opinion), and 
+Eddings v. Oklahoma, 455 U. S. 104, 113–115 (1982).” Ante, 
+at 108. Reading that conclusion, one would expect Miller 
+to have announced that it rested solely on those cases. 
+Miller was clear, however, that it drew primarily from a 
+different line of precedent headed by Roper and Graham, 
+which “adopted categorical bans on sentencing practices 
+based on mismatches between the culpability of a class of 
+offenders and the severity of a penalty,” regardless of the 
+procedures used to impose the sentences. Miller, 567 U. S., 
+at 470. These cases set forth a substantive proportionality 
+principle that the individualized-sentencing cases did not: 
+“[L]ife-without-parole sentences, like capital punishment, 
+may violate the Eighth Amendment when imposed on chil­
+dren” because “the characteristics of youth, and the way 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 98 (2021) 
+137 
+Sotomayor, J., dissenting 
+they weaken rationales for punishment, can render a life­
+without-parole sentence disproportionate.” Id., at 473. 
+Mandatory and discretionary sentencing schemes alike can 
+produce disproportionate sentences. Regardless of how it is 
+imposed, a juvenile death sentence is unconstitutional under 
+Roper, and a juvenile sentence of LWOP for a nonhomicide 
+offense is unconstitutional under Graham. See Roper, 543 
+U. S., at 575 (holding “that the death penalty cannot be im­
+posed upon juvenile offenders”); Graham, 560 U. S., at 74 
+(drawing a “clear line” against “life without parole for juve­
+nile nonhomicide offenders”). So, too, with Miller: No set of 
+discretionary sentencing procedures can render a sentence 
+of LWOP constitutional for a juvenile whose crime refects 
+“unfortunate yet transient immaturity.” 567 U. S., at 479 
+(internal quotation marks omitted). 
+The Court claims that Miller relied on Roper and Graham 
+“for a simple proposition: Youth matters in sentencing.” 
+Ante, at 109. That is true, but the Court confates two ways 
+in which youth matters. When Miller was decided, the 
+Court's individualized-sentencing cases had already frmly 
+established “that a defendant's youth is a relevant mitigating 
+circumstance that must be within the effective reach of a 
+capital sentencing jury.” Johnson v. Texas, 509 U. S. 350, 
+367 (1993); see also Eddings v. Oklahoma, 455 U. S. 104, 116 
+(1982) (requiring that sentencers consider “the chronological 
+age of a minor” and “the background and mental and emo­
+tional development of a youthful defendant”). The Miller 
+Court thus did not need to cite Roper and Graham as a sepa­
+rate “stran[d] of precedent,” Miller, 567 U. S., at 470, for that 
+long-recognized proposition. It drew on Roper and Graham 
+instead to set a substantive limit on the imposition of LWOP 
+on juvenile offenders, even when they commit homicide. 
+The Court today reverses course and concludes that youth 
+does not matter in this way. 
+Next, the Court exaggerates the meaning of two state­
+ments from Miller, arguing that it “mandated `only that a 
+
+138 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+sentencer follow a certain process,' ” rather than “ `cate­
+gorically bar[ring] a penalty for a class of offenders or type 
+of crime[,] as, for example, we did in Roper or Gra­
+ham.' ” Ante, at 106, 109 (quoting Miller, 567 U. S., at 483). 
+Again, Montgomery already rejected this misinterpretation: 
+“Miller, it is true, did not bar a punishment for all juvenile 
+offenders,” or all juvenile offenders convicted of certain 
+crimes, “as the Court did in Roper or Graham.” 577 U. S., 
+at 209. “Miller did bar life without parole, however, for all 
+but the rarest of juvenile offenders, those whose crimes re­
+fect permanent incorrigibility.” Ibid. To “separate those 
+juveniles who may be sentenced to life without parole from 
+those who may not,” as Miller requires, sentencers must fol­
+low a certain process: conducting a “hearing where `youth 
+and its attendant characteristics' are considered.” 577 U. S., 
+at 210. That process is not an end in itself. Rather, it 
+“gives effect to Miller's substantive holding that life without 
+parole is an excessive sentence for children whose crimes 
+refect transient immaturity.” Ibid. 
+Finally, the Court argues that Miller offered nothing more 
+than a prediction that “a discretionary sentencing proce­
+dure would help make life-without-parole sentences rela­
+tively rare.” Ante, at 112. Miller's substantive rule was 
+not a prediction. Rather, Miller held that juvenile LWOP 
+sentences must be rare because it is only “the rare juvenile 
+offender whose crime refects irreparable corruption.” 567 
+U. S., at 479–480 (internal quotation marks omitted). Sim­
+ply put, there are very few juveniles for whom the “ `signa­
+ture qualities' ” of youth do not undermine the penological 
+justifcations for LWOP. Id., at 476. Youth is “a time 
+of immaturity, irresponsibility, impetuousness, and reck­
+lessness,” and, almost invariably, those “qualities are all 
+transient.” Ibid. (internal quotation marks and brackets 
+omitted). 
+In any event, the data since Miller prove that sentenc­
+ing discretion alone will not make LWOP a rare sentence for 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 98 (2021) 
+139 
+Sotomayor, J., dissenting 
+juvenile offenders. Even after Montgomery, Mississip­
+pi courts require only that a sentencer consider youth-
+related factors “in a non-arbitrary fashion” before impos­
+ing a sentence of LWOP. See, e. g., Miller v. State, 327 So. 
+3d 121, 129 (Miss. App. 2020). Unbound by Miller's es­
+sential holding, more than a quarter of Mississippi's re­
+sentencings have resulted in the reimposition of LWOP. 
+See Brief for Juvenile Law Center et al. as Amici Cur­
+iae 20.1 
+Pennsylvania, in contrast, has recognized that “Miller re­
+quires far more than mere consideration of an offender's 
+age,” as “a life-without-parole sentence imposed on a juvenile 
+is illegal” unless “the defendant will forever be incorrigible, 
+without any hope for rehabilitation.” Commonwealth v. 
+Batts, 640 Pa. 401, 440, 444, 163 A. 3d 410, 433, 435 (2017). 
+Pennsylvania has adopted a number of procedures to guide 
+sentencing courts in applying Miller's rule, including a pre­
+sumption against juvenile LWOP that the State must rebut 
+through proof beyond a reasonable doubt. 640 Pa., at 476, 
+163 A. 3d, at 454–455. Fewer than 2 percent of resentenc­
+ings in Pennsylvania have resulted in the reimposition of 
+LWOP. See The Campaign for the Fair Sentencing of 
+Youth, Tipping Point: A Majority of States Abandon Life­
+Without-Parole Sentences for Children 7 (2018) (Tipping 
+Point). 
+These States' experiences show that juvenile LWOP sen­
+tences will not be rare simply by virtue of sentencing discre­
+tion. Sentencers will not “necessarily . . . consider the de­
+1 Elsewhere, the numbers are even more alarming. Like Mississippi 
+courts, Louisiana courts have concluded that “Miller requires the sentenc­
+ing court to consider an offender's youth and attendant characteristics as 
+mitigating circumstances.” State v. Keith, 51,389, p. 3 (La. App. 2 Cir. 
+6/21/17), 223 So. 3d 767, 770. As of 2020, Louisiana has imposed LWOP 
+on an astonishing 57 percent of eligible juvenile offenders since Miller was 
+decided. See Louisiana Center for Children's Rights, Louisiana's Compli­
+ance with Miller v. Alabama 1 (2020). 
+
+140 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+fendant's youth,” ante, at 114, and they certainly will not 
+necessarily conduct Miller's essential inquiry. If sentencing 
+discretion is all that is required, far too many juvenile offend­
+ers will be sentenced to die in prison.2 
+B 
+The Court's misreading of Miller and Montgomery is 
+egregious enough on its own. The Court twists precedent 
+even further, however, by distorting Miller in a way that 
+cannot be reconciled with Montgomery's holding that Miller 
+applies retroactively under the Teague doctrine. See ante, 
+at 128 (opinion of Thomas, J.). That doctrine divides new 
+rules of constitutional law into two categories: substantive 
+and procedural. As noted above, Montgomery held that 
+Miller applies retroactively based solely on “Teague's frst 
+exception for substantive rules.” 577 U. S., at 200. For 
+Montgomery to make any sense, then, Miller must have 
+done more than mandate a certain procedure. Rather, it 
+“eliminated a State's power to . . . impose a given punish­
+ment.” 577 U. S., at 201.3 
+2 The harm from these sentences will not fall equally. The racial dispar­
+ities in juvenile LWOP sentencing are stark: 70 percent of all youths sen­
+tenced to LWOP are children of color. See Tipping Point 10; see also 
+Brief for Juvenile Law Center et al. as Amici Curiae 21 (reporting that 
+“[i]n the years before Graham and Miller, courts sentenced Black juvenile 
+offenders to life imprisonment without parole ten times more often than 
+white offenders”); Mills, Dorn, & Hritz, Juvenile Life Without Parole in 
+Law and Practice: Chronicling the Rapid Change Underway, 65 Am. 
+U. L. Rev. 535, 579–580 (2016) (“Non-whites are overrepresented among 
+the JLWOP population in ways perhaps unseen in any other aspect of 
+our criminal justice system”). The trend has worsened since Miller 
+v. Alabama, 567 U. S. 460 (2012): 72 percent of children sentenced to 
+LWOP after Miller were Black, compared to 61 percent of children sen­
+tenced before Miller. Tipping Point 10. 
+3 Justice Thomas agrees that Montgomery mandates such a reading of 
+Miller, but he claims that Miller itself did not establish a substantive rule. 
+See ante, at 123–125. That is incorrect. As discussed, Miller prohibited 
+mandatory LWOP sentences not only because mandatory sentencing pre­
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+141 
+Sotomayor, J., dissenting 
+Today, however, the Court transforms Miller into a deci­
+sion requiring only a “discretionary sentencing procedure.” 
+Ante, at 118. At the same time, the Court insists that it 
+“does not disturb” Montgomery's holding “that Miller ap­
+plies retroactively on collateral review.” Ante, at 118. In 
+other words, the Court rewrites Miller into a procedural 
+rule and, paradoxically, maintains that Miller was neverthe­
+less “substantive for retroactivity purposes.” Ante, at 110. 
+That explanation undoes Teague's distinction between sub­
+stantive and procedural rules. If a rule that requires only 
+a sentencing procedure is substantive for retroactivity pur­
+poses, then this Court has improperly classifed numerous 
+sentencing rules as procedural. To take one example, in 
+Mills v. Maryland, 486 U. S. 367 (1988), this Court invali­
+dated a capital sentencing procedure requiring jurors to dis­
+regard mitigating factors that were not found unanimously. 
+That holding was procedural because it altered only “the 
+range of permissible methods for determining whether a de­
+fendant's conduct is punishable by death.” Schriro v. Sum-
+merlin, 542 U. S. 348, 353 (2004). Under the Court's logic 
+today, however, the rule in Mills and other rules of sentenc­
+ing procedure should have applied retroactively, even though 
+the Court has held that they do not. See Beard v. Banks, 
+542 U. S. 406, 416–417 (2004) (holding that Mills announced 
+a procedural rule); Summerlin, 542 U. S., at 354 (treating as 
+procedural the rule set forth in Ring v. Arizona, 536 U. S. 
+584 (2002), that a jury, rather than a judge, must fnd aggra­
+vating circumstances necessary for the imposition of the 
+cludes individualized consideration of a juvenile's youth, but also because 
+“such a scheme poses too great a risk of disproportionate punishment.” 
+567 U. S., at 479. Applying the principles of proportionality set forth in 
+Roper and Graham, Miller “rendered life without parole an unconsti­
+tutional penalty for a class of defendants because of their status[,] that 
+is, juvenile offenders whose crimes refect the transient immaturity of 
+youth.” Montgomery, 577 U. S., at 208 (internal quotation marks omit­
+ted). As a result, “Miller is no less substantive than are Roper and Gra­
+ham.” Id., at 209. 
+Page Proof Pending Publication
+
+142 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+death penalty). If future litigants make such arguments, it 
+will be because the Court's contortion of Miller and Mont­
+gomery paves the way for them to do so. 
+C 
+Rather than read Miller and Montgomery fairly, the 
+Court reprises Justice Scalia's dissenting view in Montgom­
+ery that Miller requires only a “youth-protective proce­
+dure.” 577 U. S., at 225 (emphasis deleted). Justice Scalia's 
+view did not prevail, however. Montgomery's interpreta­
+tion of Miller is binding precedent, just as Miller itself is. 
+Any doubts the Court may harbor about the merits of 
+those decisions do not justify overruling them. See June 
+Medical Services L. L. C. v. Russo, 591 U. S. –––, ––– (2020) 
+(Roberts, C. J., concurring in judgment) (“[F]or precedent 
+to mean anything, the doctrine must give way only to a ra­
+tionale that goes beyond whether the case was decided 
+correctly”). As this Court has consistently reiterated, “a 
+departure from precedent demands special justifcation.” 
+Gamble v. United States, 587 U. S. –––, ––– (2019) (internal 
+quotation marks omitted); accord, Kisor v. Wilkie, 588 U. S. 
+–––, ––– – ––– (2019); Kimble v. Marvel Entertainment, LLC, 
+576 U. S. 446, 455–456 (2015). 
+The Court offers no such justifcation today. Nor could it. 
+The traditional stare decisis factors include the quality of the 
+precedent's reasoning, its consistency with other decisions, 
+legal and factual developments since the precedent was de­
+cided, and its workability. See Ramos, 590 U. S., at ––– 
+(opinion of Kavanaugh, J.). None supports overturning 
+Miller or Montgomery. As explained above, those decisions 
+are frmly rooted in two lines of precedent and fundamental 
+principles of proportionality.4 
+Subsequent legal and fact­
+4 Justice Thomas claims that Miller and Montgomery “refashio[n] the 
+Eighth Amendment to accommodate this Court's views of juvenile jus­
+tice.” Ante, at 122; see ante, at 128. In so doing, Justice Thomas 
+“seek[s] to relitigate old Eighth Amendment battles” based on “arguments 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+143 
+Sotomayor, J., dissenting 
+ual developments have reinforced their reasoning. Fifteen 
+state courts of last resort, for instance, have recognized that 
+Miller announced a substantive rule barring LWOP for any 
+juvenile whose crime does not refect permanent incorrigibil­
+ity. See Reply Brief 18, n. 6. Twenty States and the Dis­
+trict of Columbia have changed their policies to prohibit 
+LWOP sentences for all juvenile offenders, including a num­
+ber of States that “had discretionary sentencing schemes or 
+a mixture of both mandatory and discretionary sentences.” 
+Brief for Former West Virginia Delegate John Ellem et al. 
+as Amici Curiae in Mathena v. Malvo, O. T. 2019, No. 18– 
+217, pp. 34–35; S. 256, 133d Gen. Assembly (Ohio 2020); Va. 
+Code Ann. § 53.1–165.1 (2020). Finally, Miller and Mont­
+gomery have not proved unworkable: To the contrary, they 
+have spurred reforms across the country while “avoid[ing] 
+intruding more than necessary upon the States' sovereign 
+administration of their criminal justice systems.” Mont­
+gomery, 577 U. S., at 211. Requiring sentencers to make an 
+explicit or implicit determination of permanent incorrigibil­
+ity before sentencing a juvenile offender to LWOP imposes 
+no costs that justify overturning precedent. 
+Instead of addressing these factors, the Court simply re­
+writes Miller and Montgomery to say what the Court now 
+wishes they had said, and then denies that it has done any 
+such thing. See ante, at 118. The Court knows what it is 
+doing. It admits as much. Rather than try to harmonize 
+its decision today with Montgomery's retroactivity holding, 
+it confesses in a footnote that its rewriting of precedent is 
+inconsistent with Montgomery and basic retroactivity princi­
+ples. See ante, at 110–111, n. 4. The Court's solution? It 
+urges lower courts to simply ignore Montgomery going for-
+this Court has previously (and often) rejected.” Miller, 567 U. S., at 471, 
+n. 4; see Graham v. Florida, 560 U. S. 48, 58 (2010) (“To determine 
+whether a punishment is cruel and unusual, courts must look beyond his­
+torical conceptions to the evolving standards of decency that mark the 
+progress of a maturing society” (internal quotation marks omitted)). 
+Page Proof Pending Publication
+
+144 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+ward. Ante, at 111, n. 4 (“[T]he Court's retroactivity prece­
+dents that both pre-date and post-date Montgomery . . . and 
+not Montgomery . . . must guide the determination of 
+whether rules other than Miller are substantive”).5 
+Instead 
+of “disturb[ing]” Montgomery's retroactivity holding, ante, 
+at 111, n. 4, the Court attempts to bury it. 
+How low this Court's respect for stare decisis has sunk. 
+Not long ago, that doctrine was recognized as a pillar of the 
+“ `rule of law,' ” critical to “keep the scale of justice even and 
+steady, and not liable to waver with every new judge's opin­
+ion.” Ramos, 590 U. S., at ––– – ––– (opinion of Kava­
+naugh, J.) (internal quotation marks omitted). Given these 
+weighty interests, the Court “usually require[d] that a party 
+ask for overruling, or at least obtain[ed] briefng on the over­
+ruling question,” and then “carefully evaluate[d] the tradi­
+tional stare decisis factors.” Barr v. American Assn. of Po­
+litical Consultants, Inc., 591 U. S. –––, –––, n. 5 (2020). 
+Now, it seems, the Court is willing to overrule precedent 
+without even acknowledging it is doing so, much less provid­
+ing any special justifcation. It is hard to see how that ap­
+proach is “founded in the law rather than in the proclivities 
+of individuals.” Ramos, 590 U. S., at ––– (opinion of Kava­
+naugh, J.) (internal quotation marks omitted). 
+For present purposes, sentencers should hold this Court 
+to its word: Miller and Montgomery are still good law.6 
+See 
+5 Of course, as already discussed, the Court is perfectly content to rely 
+on Montgomery for its statement that a fnding of fact regarding perma­
+nent incorrigibility is not required. That isolated piece of Montgomery, 
+apparently, still carries the full weight of precedent. Anything more in­
+convenient, however, the Court today discards. 
+6 The Court leaves open the possibility of an “as-applied Eighth Amend­
+ment claim of disproportionality.” Ante, at 120 (citing Harmelin v. Mich­
+igan, 501 U. S 957, 996–1009 (1991) (Kennedy, J., concurring in part and 
+concurring in judgment)). In the context of a juvenile offender, such a 
+claim should be controlled by this Court's holding that sentencing “a child 
+whose crime refects transient immaturity to life without parole . . . is 
+disproportionate under the Eighth Amendment.” Montgomery, 577 U. S., 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+145 
+Sotomayor, J., dissenting 
+ante, at 118 (“Today's decision does not overrule Miller or 
+Montgomery”). Sentencers are thus bound to continue 
+applying those decisions faithfully. Thankfully, many States 
+have already implemented robust procedures to give effect 
+to Miller and Montgomery. In other States, the responsi­
+bility falls squarely on individual sentencers to use their dis­
+cretion to “separate those juveniles who may be sentenced 
+to life without parole from those who may not.” Montgom­
+ery, 577 U. S., at 210. Failing to do so violates the Eighth 
+Amendment. 
+III 
+Brett Jones, like all juvenile offenders facing a sentence of 
+LWOP, deserves an answer to Miller's essential question: 
+whether his crime demonstrates that he is permanently in­
+corrigible. Ordinarily, an appellate court should not pass on 
+that question in the frst instance. But the Court today 
+guarantees that the state sentencing court will never have 
+to give Jones an answer. It thus bears acknowledging that, 
+based on the evidence presented below, it is hard to see how 
+Jones is one of the rare juvenile offenders “whose crime re­
+fects irreparable corruption.” Miller, 567 U. S., at 479–480 
+(internal quotation marks omitted). In fact, many aspects 
+of Jones's crime seem to epitomize “unfortunate yet transient 
+immaturity.” Id., at 479 (internal quotation marks omitted); 
+see 2018 WL 10700848, *11 (Miss., Nov. 27, 2018) (Kitchens, 
+P. J., dissenting) (“Jones's actions refect [the hallmark] fea­
+tures [of youth] at every turn”).7 
+at 211; see Miller, 567 U. S., at 481 (“Harmelin had nothing to do with 
+children and did not purport to apply its holding to the sentencing of juve­
+nile offenders”). 
+7 Even as it disclaims any responsibility for evaluating permanent incor­
+rigibility, the Court emphasizes the details of Jones's crime and alludes to 
+other homicides committed by juveniles throughout the country. See 
+ante, at 102, 105. The gravity of these violent acts was not lost on the 
+Court in Miller, which set forth its substantive rule specifcally for the 
+subset of juvenile offenders who commit homicide. See also Roper, 543 
+U. S., at 572 (“[W]e cannot deny or overlook the brutal crimes too many 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+146 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+Jones killed his grandfather just 23 days after Jones's 15th 
+birthday. App. 71. In his short life before the murder, 
+Jones was the victim of violence and neglect that he was too 
+young to escape. Jones's biological father was an alcoholic 
+who physically abused Jones's mother, knocking out her teeth 
+and breaking her nose on several occasions. Id., at 71–72. 
+The two separated when Jones was two years old. Id., at 
+71. Jones's mother then married Jones's stepfather, who was 
+also abusive, especially toward Jones. He beat Jones with 
+belts, switches, and a paddle labeled “The Punisher.” Id., 
+at 39–40, 78, 81. He rarely called Jones or his brother by 
+their names, preferring cruel epithets. Id., at 77, 81, 101 
+(“[H]is favorite thing to call them was little motherf***ers”). 
+According to Jones's mother, Jones's stepfather “hated Brett 
+more because Brett reminded him of [Jones's biological fa­
+ther].” Id., at 78. According to Jones's grandmother, he was 
+simply “easier to hurt and beat.” Id., at 39. In 2004, after 
+Jones came home late one day, Jones's stepfather few into a 
+rage and grabbed Jones by the neck, preparing to beat him 
+with a belt. Id., at 128–129. This time, however, Jones 
+fought back and told his stepfather, “No, you're not going to 
+hit me ever again.” Id., at 80 (emphasis deleted). Jones 
+took a swing at his stepfather and split open his ear. Ibid. 
+The police were called, and Jones was arrested.8 
+Ibid. 
+Jones's stepfather then threatened to kick out Jones's mother 
+and brother if Jones did not move out. Id., at 81. As a 
+result, Jones's grandparents picked him up less than two 
+juvenile offenders have committed”). Notwithstanding the unique “moral 
+culpability and consequential harm” of homicide, Miller reasoned that 
+Graham's insights about children “are evident in the same way, and to the 
+same degree.” 567 U. S., at 473. The point of Miller and Montgomery 
+is that juveniles, even those who commit murder, have the capacity to 
+grow and mature, to rehabilitate. The Eighth Amendment requires that 
+sentencers (and reviewing courts) not presume that most juveniles will 
+forever remain the “murderers,” ante, at 109, they once were. 
+8 This was Jones's only prior contact with the juvenile justice system. 
+See Brief for Petitioner 35. 
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 98 (2021) 
+147 
+Sotomayor, J., dissenting 
+months before the murder and brought him to Mississippi. 
+Id., at 47. 
+When he moved, Jones lost access to medications that he 
+had been taking for mental health issues. Id., at 38–39.9 
+When he was 11 or 12 years old, Jones began cutting himself 
+so that he “would not feel the panic and the hurt that was 
+inside of [his] head.” Id., at 75. He later experienced hal­
+lucinations and was prescribed antidepressant medications. 
+Id., at 92, 124. These medications were supposed to be ta­
+pered off gradually. Id., at 38–39. When Jones left for Mis­
+sissippi, however, they were abruptly cut off. 
+The murder was precipitated by a dispute over Jones's girl­
+friend. After Jones moved, his girlfriend ran away from her 
+home in Florida to stay at Jones's grandparents' home in se­
+cret. 938 So. 2d 312, 313 (Miss. App. 2006). On the day of 
+the murder, Jones's grandfather, Bertis Jones, discovered that 
+Jones's girlfriend had been staying in their home. Ibid. He 
+ordered her out. Ibid. Later that day, Jones was making 
+a sandwich in the kitchen using a steak knife. Id., at 314. 
+Jones said something disrespectful to his grandfather, who 
+started yelling. Ibid. The two began pushing each other, 
+and Jones's grandfather tried to hit him. 
+Ibid. Jones 
+stabbed his grandfather with the steak knife. Ibid. Jones's 
+grandfather came at Jones again, and the fght continued. 
+Ibid. Jones ultimately stabbed his grandfather eight times, 
+9 Jones's mother has also been diagnosed with a number of conditions, 
+including posttraumatic stress disorder, bipolar disorder, and manic de­
+pression. App. 74. As a result, throughout Jones's life, she experienced 
+panic attacks and emotional breakdowns. Id., at 74–75. As a child, Jones 
+witnessed his mother cutting herself. Id., at 122–123. The types of ad­
+verse childhood experiences that Jones endured, including physical abuse, 
+domestic violence, and mental illness in family members, are strong pre­
+dictors of negative outcomes for children, including violence. J. Garbar­
+ino, Miller's Children 10–12 (2018); see id., at 12 (“[E]levated adversity 
+scores are as common among killers as they are rare in the general adoles­
+cent population”). 
+
+148 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+grabbing a second knife when the frst one broke. 2018 WL 
+10700848, *7 (Kitchens, P. J., dissenting). 
+No one disputes that this was a terrible crime. Miller, 
+however, held that “the distinctive attributes of youth dimin­
+ish the penological justifcations for imposing the harshest 
+sentences on juvenile offenders, even when they commit ter­
+rible crimes.” 567 U. S., at 472. Jones's crime refects these 
+distinctive attributes: “That a teenager in trouble for having 
+been caught concealing his girlfriend at his grandparents' 
+home would attempt to solve the problem by resorting to 
+violence dramatically epitomizes immaturity, impetuosity, 
+and failure to appreciate risks or consequences.” 2018 WL 
+10700848, *11 (Kitchens, P. J., dissenting). 
+Jones then attempted to save his grandfather by adminis­
+tering CPR. 938 So. 2d, at 314. When that failed, he clum­
+sily tried to hide what he had done. 2018 WL 10700848, *11 
+(Kitchens, P. J., dissenting). He was spotted walking around 
+in plain sight, covered in blood, trembling and muttering to 
+himself. Ibid. When a neighbor questioned him, Jones told 
+a feeble lie, claiming that his grandfather had left and that 
+the blood on his clothes was “ `a joke.' ” 938 So. 2d, at 314. 
+Jones then met up with his girlfriend and attempted to hitch­
+hike, but not to make a getaway. Instead, he was trying to 
+go see his grandmother to tell her what had happened. Id., 
+at 315. The police stopped Jones, found that he was carry­
+ing a pocket knife, and asked if it was the knife he “ `did it 
+with.' ” Ibid. Jones replied, “ `No, I already got rid of it.' ” 
+Ibid. He then agreed to be interviewed by three police de­
+tectives, “without invoking his right to silence or his right 
+to counsel and without a parent or guardian present.” 2018 
+WL 10700848, *11 (Kitchens, P. J., dissenting). 
+Thus, 
+“Jones's behavior in the immediate aftermath of his tragic 
+actions also demonstrated his fundamental immaturity.” 
+Ibid. 
+At his resentencing hearing, Jones provided evidence that 
+not only is he capable of rehabilitation, but he had in fact 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 98 (2021) 
+149 
+Sotomayor, J., dissenting 
+already matured signifcantly since his crime. In more than 
+fve years in prison, Jones committed only two disciplinary 
+infractions. 
+App. 134–135. While incarcerated, Jones 
+earned his GED and sought out work, becoming a “very good 
+employee.” Id., at 106, 109, 153. Jones and his prison unit 
+manager often discussed the Bible, and in time, his unit man­
+ager came to think of Jones “almost like [a] son.” Id., at 
+107. Jones confded in him that Jones “regretted” what he 
+had done. Id., at 112. 
+Jones's grandmother (Bertis Jones's widow) testifed at 
+Jones's resentencing hearing and submitted an amicus brief 
+to this Court. She remains “steadfast in her belief that 
+Brett is not and never was irreparably corrupt.” Brief for 
+Madge Jones et al. as Amici Curiae 4. She speaks with 
+Jones weekly, encouraging him as he takes college courses 
+and serves in the prison ministry. Ibid. Jones's younger 
+brother, Marty, and his other family members have also 
+stayed by his side. 
+This signifcant body of evidence does not excuse Jones's 
+crime. It does mean, however, that under Miller and Mont­
+gomery, there is a strong likelihood that Jones is constitu­
+tionally ineligible for LWOP. His crime, while terrible, ap­
+pears to have been the product of “unfortunate yet transient 
+immaturity.” Miller, 567 U. S., at 479 (internal quotation 
+marks omitted). Notably, the State called no witnesses and 
+offered no evidence at the resentencing hearing to rebut 
+Jones's proof that his crime refected the “recklessness” and 
+“impulsivity” characteristic of juveniles. Montgomery, 577 
+U. S., at 207 (internal quotation marks omitted); see App. 
+23, 136. 
+In resentencing Jones to LWOP, the sentencing court 
+failed to apply Miller properly. Instead, it followed the in­
+structions of the Mississippi Supreme Court, which held that 
+“Miller rendered [Mississippi's] sentencing scheme unconsti­
+tutional if, and only if, the sentencing authority fails to take 
+into account characteristics and circumstances unique to ju­
+Page Proof Pending Publication
+
+150 
+JONES v. MISSISSIPPI 
+Sotomayor, J., dissenting 
+veniles.” 122 So. 3d 698, 702 (2013). Thus, the sentencing 
+court simply considered the “Miller factors” as part of the 
+“mitigating and the aggravating circumstances.” App. 149. 
+It never addressed Miller's central inquiry: whether Jones 
+is one of the rare juveniles whose crimes refect irreparable 
+corruption. 567 U. S., at 479–480. Because the sentencing 
+court failed to ask and answer this critical question, Jones's 
+sentence should not stand. 
+IV 
+It is important not to lose sight of what is at stake in this 
+case. “The Eighth Amendment's prohibition of cruel and 
+unusual punishment guarantees individuals the right not to 
+be subjected to excessive sanctions.” Miller, 567 U. S., at 
+469 (internal quotation marks omitted). In Roper, Graham, 
+Miller, and Montgomery, the Court recognized that this 
+guarantee has special signifcance for children. The Eighth 
+Amendment does not excuse children's crimes, nor does it 
+shield them from all punishment. It does, however, demand 
+that most children be spared from punishments that “giv[e] no 
+chance for fulfllment outside prison walls, no chance for re­
+conciliation with society, no hope.” Graham, 560 U. S., at 79. 
+Jones and other juvenile offenders like him seek only the 
+possibility of parole. Not the certainty of release, but the 
+opportunity, at some point in their lives, to show a parole 
+board all they have done to rehabilitate themselves and to 
+ask for a second chance. Jones recognizes that the parole 
+board may ultimately decide he must spend his entire life 
+behind bars. He simply requests that the State not “mak[e] 
+the judgment at the outset that [he] never will be ft to reen­
+ter society.” Id., at 75. The Eighth Amendment requires 
+that most juvenile offenders be given this small “hope for 
+some years of life outside prison walls.” Montgomery, 577 
+U. S., at 213.10 
+10 Having deprived Jones of his constitutional right, the Court gestures 
+at a potential lifeline from other institutions, including the Mississippi 
+Legislature or Governor. Ante, at 121. But “the remote possibility” of 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 98 (2021) 
+151 
+Sotomayor, J., dissenting 
+At his resentencing hearing, Jones told the court, “I'm not 
+the same person I was when I was 15. . . . I've become a 
+pretty decent person in life. And I've pretty much taken 
+every avenue that I could possibly take in prison to rehabili­
+tate myself.” App. 152. “Minors do have the ability to 
+change,” he refected. Ibid. He noted in closing, “If you 
+decide to send me back without the possibility of parole, I 
+will still do exactly what I've been doing for ten years. But 
+all I can do is ask you . . . please give me just one chance to 
+show the world, man, like, I can be somebody. I've done 
+everything I could over the past ten years to be some­
+body. . . . I can't change what was already done. I can just 
+try to show . . . I've become a grown man.” Id., at 153. 
+Today, Jones is 31. His time spent in prison has now 
+eclipsed the childhood he had outside of it. 
+Jones should know that, despite the Court's decision today, 
+what he does in life matters. So, too, do the efforts of the 
+almost 1,500 other juvenile offenders like Jones who are 
+serving LWOP sentences. Of course, nothing can repair the 
+damage their crimes caused. But that is not the question. 
+The question is whether the State, at some point, must con­
+sider whether a juvenile offender has demonstrated maturity 
+and rehabilitation suffcient to merit a chance at life beyond 
+the prison in which he has grown up. See Graham, 560 
+U. S., at 79. For most, the answer is yes. 
+such action “does not mitigate the harshness of the sentence” that Jones 
+now faces. Graham, 560 U. S., at 70. The Eighth Amendment guaran­
+tees juvenile offenders like Jones a basic constitutional protection against 
+disproportionate punishments. The Court should not leave the vindica­
+tion of such important legal rights to others, or to chance. 
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+PRELIMINARY PRINT 
+Volume 606 U. S. Part 2 
+Pages 831–941 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 27, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2024 
+831 
+Syllabus 
+TRUMP, PRESIDENT OF THE UNITED STATES, 
+et al. v. CASA, INC., et al. 
+on application for partial stay 
+No. 24A884. Argued May 15, 2025—Decided June 27, 2025* 
+Plaintiffs (respondents here)—individuals, organizations, and States—fled 
+three separate suits to enjoin the implementation and enforcement of 
+President Trump's Executive Order No. 14160. See Protecting the 
+Meaning and Value of American Citizenship, 90 Fed. Reg. 8449. The 
+Executive Order identifes circumstances in which a person born in the 
+United States is not “subject to the jurisdiction thereof” and is thus 
+not recognized as an American citizen. The plaintiffs allege that the 
+Executive Order violates the Fourteenth Amendment's Citizenship 
+Clause, § 1, and § 201 of the Nationality Act of 1940. In each case, the 
+District Court entered a “universal injunction”—an injunction barring 
+executive offcials from applying the Executive Order to anyone, not 
+just the plaintiffs. And in each case, the Court of Appeals denied the 
+Government's request to stay the sweeping relief. The Government 
+argues that the District Courts lacked equitable authority to impose 
+universal relief and has fled three nearly identical emergency applica­
+tions seeking partial stays to limit the preliminary injunctions to the 
+plaintiffs in each case. The applications do not raise—and thus the 
+Court does not address—the question whether the Executive Order vio­
+lates the Citizenship Clause or Nationality Act. Instead, the issue the 
+Court decides is whether, under the Judiciary Act of 1789, federal courts 
+have equitable authority to issue universal injunctions. 
+Held: Universal injunctions likely exceed the equitable authority that Con­
+gress has given to federal courts. The Court grants the Government's 
+applications for a partial stay of the injunctions entered below, but only 
+to the extent that the injunctions are broader than necessary to provide 
+complete relief to each plaintiff with standing to sue. Pp. 839–862. 
+(a) The issue raised by these applications—whether Congress has 
+granted federal courts authority to universally enjoin the enforcement 
+of an executive order—plainly warrants this Court's review. On multi­
+ple occasions, and across administrations, the Solicitor General has 
+*Together with No. 24A885, Trump, President of the United States, 
+et al. v. Washington et al., and No. 24A886, Trump, President of the 
+United States, et al. v. New Jersey et al., also on applications for partial 
+stays. 
+
+Page Proof Pending Publication
+832 
+TRUMP v. CASA, INC. 
+Syllabus 
+asked the Court to consider the propriety of this expansive remedy. As 
+the number of universal injunctions has increased over the years, so too 
+has the importance of the issue. Pp. 839–840. 
+(b) The Government is likely to succeed on the merits of its claim that 
+the District Courts lacked authority to issue universal injunctions. See 
+Nken v. Holder, 556 U. S. 418, 434 (holding that for a stay application to 
+be granted, the applicant must make a strong showing of likelihood of 
+success on the merits). The issuance of a universal injunction can be 
+justifed only as an exercise of equitable authority, yet Congress has 
+granted federal courts no such power. The Judiciary Act of 1789 en­
+dowed federal courts with jurisdiction over “all suits . . . in equity,” §11, 
+1 Stat. 78, and still today, this statute “is what authorizes the federal 
+courts to issue equitable remedies,” S. Bray & E. Sherwin, Remedies 
+442. This Court has held that the statutory grant encompasses only 
+those sorts of equitable remedies “traditionally accorded by courts of 
+equity” at our country's inception. Grupo Mexicano de Desarrollo, 
+S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 319. 
+Universal injunctions are not suffciently “analogous” to any relief 
+available in the court of equity in England at the time of the founding. 
+Id., at 318–319. Equity offered a mechanism for the Crown “to secure 
+justice where it would not be secured by the ordinary and existing proc­
+esses of law.” G. Adams, The Origin of English Equity, 16 Colum. 
+L. Rev. 87, 91. This “judicial prerogative of the King” thus extended 
+to “those causes which the ordinary judges were incapable of determin­
+ing.” 1 J. Pomeroy, Equity Jurisprudence § 31, p. 27. Eventually, the 
+Crown instituted the “practice of delegating the cases” that “came be­
+fore” the judicial prerogative “to the chancellor for his sole decision.” 
+Id., § 34, at 28. The “general rule in Equity [was] that all persons mate­
+rially interested [in the suit were] to be made parties to it.” J. Story, 
+Commentaries on Equity Pleadings § 72, p. 74. Injunctions were no 
+exception; there were “sometimes suits to restrain the actions of partic­
+ular offcers against particular plaintiffs.” S. Bray, Multiple Chancel­
+lors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 425 
+(Bray, Multiple Chancellors). Of importance here, suits in equity were 
+brought by and against individual parties, and the Chancellor's remedies 
+were generally party specifc. See Iveson v. Harris, 7 Ves. 251, 257, 32 
+Eng. Rep. 102, 104 (“[Y]ou cannot have an injunction except against a 
+party to the suit”). In sum, under longstanding equity practice in Eng­
+land, there was no remedy “remotely like a national injunction.” Bray, 
+Multiple Chancellors 425. 
+Nor did founding-era courts of equity in the United States chart a 
+different course. If anything, the approach traditionally taken by fed­
+eral courts cuts against the existence of such a sweeping remedy. Con­
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+833 
+Syllabus 
+sider Scott v. Donald, where the plaintiff successfully challenged the 
+constitutionality of a law on which state offcials had relied to confscate 
+alcohol that the plaintiff kept for personal use. See 165 U. S. 107, 109 
+(statement of case); id., at 111–112 (opinion of the Court). Although the 
+plaintiff sought an injunction barring enforcement of the law against 
+both himself and anyone “whose rights [were] infringed and threatened” 
+by it, the Court permitted only relief benefting the named plaintiff. 
+Id., at 115–117. In the ensuing decades, the Court consistently rebuffed 
+requests for relief that extended beyond the parties. See, e. g., Perkins 
+v. Lukens Steel Co., 310 U. S. 113, 123; Frothingham v. Mellon, decided 
+with Massachusetts v. Mellon, 262 U. S. 447, 487–489. 
+The Court's early refusals to grant relief to nonparties are consistent 
+with the party-specifc principles that permeate the Court's understand­
+ing of equity. “[N]either declaratory nor injunctive relief,” the Court 
+has said, “can directly interfere with enforcement of contested statutes 
+or ordinances except with respect to the particular federal plaintiffs.” 
+Doran v. Salem Inn, Inc., 422 U. S. 922, 931. In fact, universal injunc­
+tions were conspicuously nonexistent for most of the Nation's history. 
+Their absence from 18th and 19th century equity practice settles the 
+question of judicial authority. 
+While “equity is fexible,” Grupo Mexicano, 527 U. S., at 322, the 
+Court's precedent emphasizes that its “fexibility is confned within the 
+broad boundaries of traditional equitable relief.” Ibid. Because the 
+universal injunction lacks a historical pedigree, it falls outside the 
+bounds of a federal court's equitable authority under the Judiciary Act. 
+Pp. 841–847. 
+(c) Respondents' counterarguments are unavailing. Pp. 847–856. 
+(1) In an effort to satisfy Grupo Mexicano's historical test, re­
+spondents claim that universal injunctions are the modern equivalent of 
+the decree resulting from a “bill of peace”—a form of group litigation in 
+the Court of Chancery. Respondents contend that the existence of this 
+historic equitable device means that federal courts have the equitable 
+authority to issue universal injunctions under the Judiciary Act. The 
+analogy, however, does not work. True, “bills of peace allowed [courts 
+of equity] to adjudicate the rights of members of dispersed groups with­
+out formally joining them to a lawsuit through the usual procedures.” 
+Arizona v. Biden, 40 F. 4th 375, 397 (Sutton, C. J., concurring). Unlike 
+universal injunctions, however, which reach anyone affected by execu­
+tive or legislative action, bills of peace involved a “group [that] was small 
+and cohesive.” Bray, Multiple Chancellors 426. And unlike universal 
+injunctions, which bind only the parties to the suit, decrees resulting 
+from a bill of peace “would bind all members of the group, whether they 
+
+834 
+TRUMP v. CASA, INC. 
+Syllabus 
+were present in the action or not.” 7A C. Wright, A. Miller, & M. Kane, 
+Federal Practice and Procedure § 1751, p. 10. 
+The bill of peace lives in modern form, but not as the universal injunc­
+tion. It is instead analogous to the modern class action—which, in fed­
+eral court, is governed by Rule 23 of the Federal Rules of Civil Proce­
+dure. See ibid. Rule 23 requires numerosity (such that joinder is 
+impracticable), common questions of law or fact, typicality, and repre­
+sentative parties who adequately protect the interests of the class. 
+Fed. Rule Civ. Proc. 23(a). The requirements for a bill of peace were 
+virtually identical. See 7A Wright, Federal Practice and Procedure 
+§ 1751, at 10, and n. 4. By forging a shortcut to relief that benefts 
+parties and nonparties alike, universal injunctions impermissibly cir­
+cumvent Rule 23's procedural protections. Pp. 847–850. 
+(2) Respondents contend that universal injunctions—or at least 
+these universal injunctions—are simply an application of the principle 
+that a court of equity may fashion a remedy that awards complete relief. 
+But “complete relief” is not synonymous with “universal relief.” It is 
+a narrower concept, long embraced in the equitable tradition, that allows 
+courts to “administer complete relief between the parties.” Kinney-
+Coastal Oil Co. v. Kieffer, 277 U. S. 488, 507 (emphasis added). To be 
+sure, party-specifc injunctions sometimes “advantag[e] nonparties,” 
+Trump v. Hawaii, 585 U. S. 667, 717 (Thomas, J., concurring), but they 
+do so only incidentally. 
+Here, prohibiting enforcement of the Executive Order against the 
+child of an individual pregnant plaintiff will give that plaintiff complete 
+relief: Her child will not be denied citizenship. And extending the in­
+junction to cover everyone similarly situated would not render her relief 
+any more complete. So the individual and associational respondents 
+are wrong to characterize the universal injunction as simply an applica­
+tion of the complete-relief principle. The inquiry is more complicated 
+for the state respondents, because the relevant injunction does not pur­
+port to directly beneft nonparties. Instead, the District Court for the 
+District of Massachusetts decided that a universal injunction was neces­
+sary to provide the States themselves complete relief. As the States 
+see it, their harms—fnancial injuries and the administrative burdens 
+fowing from citizen-dependent benefts programs—cannot be remedied 
+without a blanket ban on the enforcement of the Executive Order. 
+Children often move across state lines or are born outside their parents' 
+State of residence. Given the cross-border fow, the States say, a 
+“patchwork injunction” would prove unworkable for the provision of 
+certain federally funded benefts. The Government retorts that even if 
+the injunction is designed to beneft only the States, it is “more burden­
+some than necessary to redress” their asserted harms, see Califano v. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+835 
+Syllabus 
+Yamasaki, 442 U. S. 682, 702, and that narrower relief is appropriate. 
+The Court declines to take up these arguments in the frst instance. 
+The lower courts should determine whether a narrower injunction is 
+appropriate, so we leave it to them to consider these and any related 
+arguments. Pp. 850–854. 
+(3) Respondents defend universal injunctions as a matter of policy; 
+the Government advances policy arguments running the other way. As 
+with most questions of law, the policy pros and cons are beside the point. 
+Under the Court's well-established precedent, see Grupo Mexicano, 527 
+U. S., at 319, because universal injunctions lack a founding-era forebear, 
+federal courts lack authority to issue them. Pp. 854–856. 
+(d) To obtain interim relief, the Government must show that it is 
+likely to suffer irreparable harm absent a stay. Nken, 556 U. S., at 434– 
+435. When a federal court enters a universal injunction against the 
+Government, it “improper[ly] intru[des]” on “a coordinate branch of the 
+Government” and prevents the Government from enforcing its policies 
+against nonparties. INS v. Legalization Assistance Project of Los 
+Angeles County Federation of Labor, 510 U. S. 1301, 1306 (O'Connor, J., 
+in chambers); see also Maryland v. King, 567 U. S. 1301, 1303 (Roberts, 
+C. J., in chambers) (“ `[A]ny time a State is enjoined by a court from 
+effectuating statutes enacted by representatives of its people, it suffers 
+a form of irreparable injury' ” (alteration in original)). The Court's 
+practice also demonstrates that an applicant need not show it will pre­
+vail on the underlying merits when it seeks a stay on a threshold issue. 
+See, e. g., Gutierrez v. Saenz, 603 U. S. 937; Offce of Personnel Manage­
+ment v. American Federation of Government Employees, 604 U. S. –––. 
+The Government here is likely to suffer irreparable harm from the Dis­
+trict Courts' entry of injunctions that likely exceed the authority con­
+ferred by the Judiciary Act. And the balance of equities does not coun­
+sel against awarding the Government interim relief: A partial stay will 
+cause no harm to respondents because they will remain protected by 
+the preliminary injunctions to the extent necessary and appropriate to 
+afford them complete relief. Pp. 859–861. 
+(e) When a court concludes that the Executive Branch has acted un­
+lawfully, the answer is not for the court to exceed its power, too. The 
+Government's applications for partial stays of the preliminary injunc­
+tions are granted, but only to the extent that the injunctions are broader 
+than necessary to provide complete relief to each plaintiff with standing 
+to sue. Pp. 861–862. 
+Applications for partial stays granted. 
+Barrett, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined. 
+Thomas, J., fled a concurring opinion, in which Gorsuch, J., joined, post, 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+836 
+TRUMP v. CASA, INC. 
+Syllabus 
+p. 862. Alito, J., fled a concurring opinion, in which Thomas, J., joined, 
+post, p. 866. Kavanaugh, J., fled a concurring opinion, post, p. 868. So­
+tomayor, J., fled a dissenting opinion, in which Kagan and Jackson, JJ., 
+joined, post, p. 879. Jackson, J., fled a dissenting opinion, post, p. 921. 
+Solicitor General Sauer argued the cause for applicants in 
+all cases. 
+Jeremy Feigenbaum, Solicitor General of New Jersey, ar­
+gued the cause for state and city respondents. 
+Kelsi B. Corkran argued the cause for private 
+respondents.† 
+†Briefs of amici curiae urging the denial of the applications were fled 
+in all cases for B. A. M. N. (The Coalition to Defend Affrmative Action 
+et al.) by Shanta Driver; for Common Cause by Gregory L. Diskant; for 
+Local Governments et al. by Jonathan Miller, David R. Gault, Atleen 
+Kaur, John P. Markovs, Christian D. Menefee, and Lyndsey M. Olson; for 
+the Restaurant Law Center et al. by Angelo I. Amador, Thomas Ward, 
+Gabriel K. Gillett, Elizabeth Gaudio Milito, and Karen R. Harned; for 
+Scholars of Consitutional Law and Immigration by Elizabeth B. Wydra 
+and Brianne J. Gorod; for the Student Political Research Initiative for 
+New Governance (SPRING) et al. by Zachary Wolfe; for Gabriel J. Chin 
+et al. by Darryl M. Woo and Neel Chatterjee; for Suzette Malveaux et al. 
+by Suzette Malveaux, pro se; for Alan B. Morrison, pro se; and for Mila 
+Sohoni by Kevin K. Russell and Daniel Woofter. 
+Briefs of amici curiae urging the grant of the applications were fled in 
+all cases for the State of Iowa et al. by Brenna Bird, Attorney General of 
+Iowa, and Eric Wessan, Solicitor General, and by the Attorneys General 
+for their respective States as follows: Steve Marshall of Alabama, Tim 
+Griffn of Arkansas, James Uthmeier of Florida, Raúl R. Labrador of 
+Idaho, Theodore E. Rokita of Indiana, Kris Kobach of Kansas, Liz Murrill 
+of Louisiana, Lynn Fitch of Mississippi, Andrew T. Bailey of Missouri, 
+Austin Knudsen of Montana, Michael T. Hilgers of Nebraska, Drew Wrig­
+ley of North Dakota, Dave Yost of Ohio, Gentner Drummond of Oklahoma, 
+Alan Wilson of South Carolina, Marty Jackley of South Dakota, Ken Pax­
+ton of Texas, Derek E. Brown of Utah, and Bridget Hill of Wyoming; for 
+the State of West Virginia by John B. McCuskey, Attorney General of 
+West Virginia, Michael Williams, Solicitor General, Jay Alan Sekulow, 
+Jordan A. Sekulow, Stuart J. Roth, Donn S. Parsons, Walter M. Weber, 
+and Liam R. Harrell; for America's Future et al. by William J. Olson, 
+Jeremiah L. Morgan, Robert J. Olson, John C. Eastman, Alexander Ha­
+berbush, Michael Boos, Richard B. Sanders, Kerry L. Morgan, John 
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+837 
+Opinion of the Court 
+Justice Barrett delivered the opinion of the Court. 
+The United States has fled three emergency applications 
+challenging the scope of a federal court's authority to enjoin 
+Government offcials from enforcing an executive order. 
+Traditionally, courts issued injunctions prohibiting executive 
+offcials from enforcing a challenged law or policy only 
+against the plaintiffs in the lawsuit. The injunctions before 
+us today refect a more recent development: district courts 
+asserting the power to prohibit enforcement of a law or pol­
+icy against anyone. These injunctions—known as “univer­
+sal injunctions”—likely exceed the equitable authority that 
+Congress has granted to federal courts.1 
+We therefore 
+I. Harris III, Mark J. Fitzgibbons, Jeffrey C. Tuomala, Patrick M. Mc-
+Sweeney, J. Mark Brewer, Joseph W. Miller, and Phillip L. Jauregui; 
+for the Claremont Institute's Center for Constitutional Jurisprudence 
+by John C. Eastman and Alexander Haberbush; for the Immigration Re­
+form Law Institute by Christopher J. Hajec; for Members of Congress 
+by R. Trent McCotter, Daniel Z. Epstein, and Joel B. Ard; for Edwin 
+Meese III by J. Christian Adams; and for Joshua Steinman by Judd E. 
+Stone II. 
+Briefs of amici curiae were fled in all cases for the State of Tennessee 
+by Jonathan Skrmetti, Attorney General of Tennessee, J. Matthew Rice, 
+Solicitor General, and Whitney D. Hermandorfer; for Members of the U. S. 
+Congress by Jonathan Weinberg; for the National Immigrant Justice 
+Center by Charles Roth; for Corey J. Biazzo, pro se; for David Boyle, pro 
+se; for William T. Dickson, pro se; for G. Antaeus B. Edelsohn by Joan 
+Deborah B. Edelsohn; and for James E. Pfander, pro se, by Jeffrey T. 
+Green. 
+Briefs of amici curiae were fled in No. 24A884 for the Chamber of 
+Commerce of the United States of America by Elbert Lin, Erica N. Pe­
+terson, and Jennifer B. Dickey; and for Legal Historians by Virginia 
+Grace Davis. 
+1 Such injunctions are sometimes called “nationwide injunctions,” re­
+fecting their use by a single district court to bar the enforcement of a law 
+anywhere in the Nation. But the term “universal” better captures how 
+these injunctions work. Even a traditional, parties-only injunction can 
+apply beyond the jurisdiction of the issuing court. Steele v. Bulova Watch 
+Co., 344 U. S. 280, 289 (1952) (When “exercising its equity powers,” a dis­
+
+838 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+grant the Government's applications to partially stay the in­
+junctions entered below. 
+I 
+The applications before us concern three overlapping, uni­
+versal preliminary injunctions entered by three different 
+District Courts. See 763 F. Supp. 3d 723 (Md. 2025), appeal 
+pending, No. 25–1153 (CA4); 765 F. Supp. 3d 1142 (WD Wash. 
+2025), appeal pending, No. 25–807 (CA9); Doe v. Trump, 766 
+F. Supp. 3d 266 (Mass. 2025), appeal pending, No. 25–1170 
+(CA1). 
+The plaintiffs—individuals, organizations, and 
+States—sought to enjoin the implementation and enforce­
+ment of President Trump's Executive Order No. 14160.2 
+See Protecting the Meaning and Value of American Citizen­
+ship, 90 Fed. Reg. 8449 (2025). The Executive Order identi­
+fes circumstances in which a person born in the United 
+States is not “subject to the jurisdiction thereof” and is thus 
+not recognized as an American citizen. See ibid. Specif­
+cally, it sets forth the “policy of the United States” to no 
+longer issue or accept documentation of citizenship in two 
+scenarios: “(1) when [a] person's mother was unlawfully pres­
+ent in the United States and the person's father was not a 
+United States citizen or lawful permanent resident at the 
+time of said person's birth, or (2) when [a] person's mother's 
+trict court “may command persons properly before it to cease or perform 
+acts outside its territorial jurisdiction”). The difference between a tradi­
+tional injunction and a universal injunction is not so much where it applies, 
+but whom it protects: A universal injunction prohibits the Government 
+from enforcing the law against anyone, anywhere. H. Wasserman, “Na­
+tionwide” Injunctions Are Really “Universal” Injunctions and They Are 
+Never Appropriate, 22 Lewis & Clark L. Rev. 335, 338 (2018). 
+2 The Government does not dispute—nor could it—that the individual 
+plaintiffs have standing to sue. But it argues that the States lack third-
+party standing because their claims rest exclusively on the rights of indi­
+viduals. Application for Partial Stay of Injunction in No. 24A884, pp. 28– 
+32. It also challenges the District Courts' authority to grant relief to the 
+organizations' members who are not identifed in the complaints. See id., 
+at 22. We do not address these arguments. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+839 
+Opinion of the Court 
+presence in the United States was lawful but temporary, and 
+the person's father was not a United States citizen or lawful 
+permanent resident at the time of said person's birth.” 
+Ibid. The Executive Order also provides for a 30-day ramp-
+up period. During that time, the order directs executive 
+agencies to develop and issue public guidance regarding the 
+order's implementation. See id., at 8449–8450. 
+The plaintiffs fled suit, alleging that the Executive Order 
+violates the Fourteenth Amendment's Citizenship Clause, 
+§ 1, as well as § 201 of the Nationality Act of 1940, 54 Stat. 
+1138 (codifed at 8 U. S. C. § 1401). In each case, the District 
+Court concluded that the Executive Order is likely unlawful 
+and entered a universal preliminary injunction barring vari­
+ous executive offcials from applying the policy to anyone in 
+the country. And in each case, the Court of Appeals denied 
+the Government's request to stay the sweeping relief. See 
+2025 WL 654902 (CA4, Feb. 28, 2025); 2025 WL 553485 (CA9, 
+Feb. 19, 2025); 131 F. 4th 27 (CA1 2025). 
+The Government has now fled three nearly identical appli­
+cations seeking to partially stay the universal preliminary 
+injunctions and limit them to the parties. See Application 
+for Partial Stay of Injunction in No. 24A884; Application for 
+Partial Stay of Injunction in No. 24A885; Application for Par­
+tial Stay of Injunction in No. 24A886.3 
+The applications do 
+not raise—and thus we do not address—the question 
+whether the Executive Order violates the Citizenship Clause 
+or Nationality Act. The issue before us is one of remedy: 
+whether, under the Judiciary Act of 1789, federal courts have 
+equitable authority to issue universal injunctions. 
+II 
+The question whether Congress has granted federal courts 
+the authority to universally enjoin the enforcement of an ex­
+ecutive or legislative policy plainly warrants our review, as 
+3 Because the applications are materially identical, we cite only the appli­
+cation in No. 24A884 throughout the rest of the opinion. 
+Page Proof Pending Publication
+
+840 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+Members of this Court have repeatedly emphasized. See, 
+e. g., McHenry v. Texas Top Cop Shop, Inc., 604 U. S. –––, ––– 
+(2025) (Gorsuch, J., concurring in grant of stay) (“I would 
+. . . take this case now to resolve defnitively the question 
+whether a district court may issue universal injunctive re­
+lief”); Labrador v. Poe, 601 U. S. 1110, 1116 (2024) (Gorsuch, 
+J., joined by Thomas and Alito, JJ., concurring in grant of 
+stay) (“[T]he propriety of universal injunctive relief [is] a 
+question of great signifcance that has been in need of the 
+Court's attention for some time”); Griffn v. HM Florida-
+ORL, LLC, 601 U. S. –––, ––– (2023) (statement of Kava­
+naugh, J., joined by Barrett, J., except as to footnote 1, 
+respecting denial of application for stay) (Universal injunc­
+tions present “an important question that could warrant our 
+review in the future”); Trump v. Hawaii, 585 U. S. 667, 713 
+(2018) (Thomas, J., concurring) (“If [universal injunctions'] 
+popularity continues, this Court must address their legal­
+ity”). On multiple occasions, and across administrations, the 
+Solicitor General has asked us to consider the propriety of 
+this expansive remedy. See, e. g., Application for Stay of In­
+junction in McHenry v. Texas Top Cop Shop, Inc., O. T. 2024, 
+No. 24A653 (Biden administration); Brief for Petitioners in 
+Trump v. Hawaii, O. T. 2017, No. 17–965 (frst Trump 
+administration). 
+It is easy to see why. By the end of the Biden administra­
+tion, we had reached “a state of affairs where almost every 
+major presidential act [was] immediately frozen by a federal 
+district court.” W. Baude & S. Bray, Comment, Proper Par­
+ties, Proper Relief, 137 Harv. L. Rev. 153, 174 (2023). The 
+trend has continued: During the frst 100 days of the second 
+Trump administration, district courts issued approximately 
+25 universal injunctions. Congressional Research Service, 
+J. Lampe, Nationwide Injunctions in the First Hundred Days 
+of the Second Trump Administration 1 (May 16, 2025). As 
+the number of universal injunctions has increased, so too has 
+the importance of the issue. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+841 
+Opinion of the Court 
+III 
+A 
+The Government is likely to succeed on the merits of its 
+argument regarding the scope of relief. See Nken v. Holder, 
+556 U. S. 418, 434 (2009) (holding that for a stay application 
+to be granted, the applicant must make “ `a strong showing 
+that [it] is likely to succeed on the merits' ”). A universal 
+injunction can be justifed only as an exercise of equitable 
+authority, yet Congress has granted federal courts no such 
+power.4 
+The Judiciary Act of 1789 endowed federal courts with ju­
+risdiction over “all suits . . . in equity,” § 11, 1 Stat. 78, and 
+still today, this statute “is what authorizes the federal courts 
+to issue equitable remedies,” S. Bray & E. Sherwin, Reme­
+dies 442 (4th ed. 2024). Though fexible, this equitable au­
+thority is not freewheeling. We have held that the statutory 
+grant encompasses only those sorts of equitable remedies 
+“traditionally accorded by courts of equity” at our country's 
+inception. Grupo Mexicano de Desarrollo, S. A. v. Alliance 
+Bond Fund, Inc., 527 U. S. 308, 319 (1999); see also, e. g., 
+Payne v. Hook, 7 Wall. 425, 430 (1869) (“The equity jurisdic­
+tion conferred on the Federal courts is the same that the 
+High Court of Chancery in England possesses”).5 
+We must 
+therefore ask whether universal injunctions are suffciently 
+“analogous” to the relief issued “ `by the High Court of 
+Chancery in England at the time of the adoption of the 
+4 Our decision rests solely on the statutory authority that federal courts 
+possess under the Judiciary Act of 1789. We express no view on the Gov­
+ernment's argument that Article III forecloses universal relief. 
+5 See also Guaranty Trust Co. v. York, 326 U. S. 99, 105 (1945) (“[T]he 
+federal courts [have] no power that they would not have had in any event 
+when courts were given `cognizance,' by the frst Judiciary Act, of suits 
+`in equity' ”); Boyle v. Zacharie & Turner, 6 Pet. 648, 658 (1832) (“[T]he 
+settled doctrine of this court is, that the remedies in equity are to be 
+administered, not according to the state practice, but according to the 
+practice of courts of equity in the parent country”). 
+Page Proof Pending Publication
+
+842 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+Constitution and the enactment of the original Judiciary 
+Act.' ” Grupo Mexicano, 527 U. S., at 318–319 (quoting A. 
+Dobie, Handbook of Federal Jurisdiction and Procedure 660 
+(1928)). 
+The answer is no: Neither the universal injunction nor any 
+analogous form of relief was available in the High Court of 
+Chancery in England at the time of the founding. Equity 
+offered a mechanism for the Crown “to secure justice where 
+it would not be secured by the ordinary and existing proc­
+esses of law.” G. Adams, The Origin of English Equity, 16 
+Colum. L. Rev. 87, 91 (1916). This “judicial prerogative of 
+the King” thus extended to “those causes which the ordinary 
+judges were incapable of determining.” 1 J. Pomeroy, Eq­
+uity Jurisprudence § 31, p. 27 (1881). Eventually, the Crown 
+instituted the “practice of delegating the cases” that “came 
+before” the judicial prerogative “to the chancellor for his sole 
+decision.” Id., § 34, at 28. This “became the common mode 
+of dealing with such controversies.” Ibid. 
+Of importance here, suits in equity were brought by and 
+against individual parties. Indeed, the “general rule in Eq­
+uity [was] that all persons materially interested [in the suit 
+were] to be made parties to it.” J. Story, Commentaries on 
+Equity Pleadings § 72, p. 74 (2d ed. 1840) (Story). Injunc­
+tions were no exception; there were “sometimes suits to re­
+strain the actions of particular offcers against particular 
+plaintiffs.” S. Bray, Multiple Chancellors: Reforming the 
+National Injunction, 131 Harv. L. Rev. 417, 425 (2017) (Bray, 
+Multiple Chancellors) (emphasis added). And in certain 
+cases, the “Attorney General could be a defendant.” Ibid. 
+The Chancellor's remedies were also typically party specifc. 
+“As a general rule, an injunction” could not bind one who 
+was not a “party to the cause.” F. Calvert, Suits in Equity 
+120 (2d ed. 1847); see also Iveson v. Harris, 7 Ves. 251, 257, 
+32 Eng. Rep. 102, 104 (1802) (“[Y]ou cannot have an injunc­
+tion except against a party to the suit”). Suffce it to say, 
+then, under longstanding equity practice in England, there 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+843 
+Opinion of the Court 
+was no remedy “remotely like a national injunction.” Bray, 
+Multiple Chancellors 425. 
+Nor did founding-era courts of equity in the United States 
+chart a different course. See 1 Pomeroy, Equity Jurispru­
+dence § 41, at 33–34. If anything, the approach traditionally 
+taken by federal courts cuts against the existence of such 
+a sweeping remedy. Consider Scott v. Donald, where the 
+plaintiff successfully challenged the constitutionality of a law 
+on which state offcials had relied to confscate alcohol that 
+the plaintiff kept for personal use. See 165 U. S. 107, 109 
+(1897) (statement of case); id., at 111–112 (opinion of the 
+Court). Although the plaintiff sought an injunction barring 
+enforcement of the law against both himself and anyone else 
+“whose rights [were] infringed and threatened” by it, this 
+Court permitted only a narrower decree between “the par­
+ties named as plaintiff and defendants in the bill.” Id., at 
+115–117.6 
+In the ensuing decades, we consistently rebuffed requests 
+for relief that extended beyond the parties. See, e. g., Per­
+kins v. Lukens Steel Co., 310 U. S. 113, 123 (1940) (“The bene­
+fts of [the court's] injunction” improperly extended “to bid­
+ders throughout the Nation who were not parties to any 
+proceeding, who were not before the court[,] and who had 
+6 Though the principal dissent claims otherwise, we do not treat Scott 
+as “dispositive.” Post, at 905 (opinion of Sotomayor, J.). Under Grupo 
+Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 
+308 (1999), the lack of a historical analogue is dispositive. Scott simply 
+illustrates that as late as 1897, this Court adhered to a party-specifc view 
+of relief. And while the principal dissent relies on Smyth v. Ames, 169 
+U. S. 466, 518 (1898), as a counterexample to Scott, see post, at 905 (opinion 
+of Sotomayor, J.), it is unclear why. Even supporters of the universal 
+injunction recognize that “the decree [that Smyth] affrmed did not reach 
+beyond the parties.” M. Sohoni, The Lost History of the “Universal” In­
+junction, 133 Harv. L. Rev. 920, 939 (2020); Smyth, 169 U. S., at 476–477 
+(statement of case) (quoting circuit court order that enjoined state offcials 
+from enforcing the statute “against said railroad companies” (emphasis 
+added)). 
+Page Proof Pending Publication
+
+844 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+sought no relief”); cf. Frothingham v. Mellon, decided with 
+Massachusetts v. Mellon, 262 U. S. 447, 487–489 (1923) (con­
+cluding that the Court lacked authority to issue “preventive 
+relief” that would apply to people who “suffe[r] in some in­
+defnite way in common with people generally”); Bray, Multi­
+ple Chancellors 433 (explaining that the Frothingham analy­
+sis “intertwines concepts of equity, remedies, and the judicial 
+power”). As Justice Nelson put it while riding circuit, 
+“[t]here is scarcely a suit at law, or in equity, . . . in which a 
+general statute is interpreted, that does not involve a ques­
+tion in which other parties are interested.” Cutting v. Gil­
+bert, 6 F. Cas. 1079, 1080 (No. 3,519) (CC SDNY 1865). But 
+to allow all persons subject to the statute to be treated as 
+parties to a lawsuit “would confound the established order of 
+judicial proceedings.” Ibid. 
+Our early refusals to grant relief to nonparties are consist­
+ent with the party-specifc principles that permeate our un­
+derstanding of equity. “[N]either declaratory nor injunctive 
+relief,” we have said, “can directly interfere with enforce­
+ment of contested statutes or ordinances except with respect 
+to the particular federal plaintiffs.” Doran v. Salem Inn, 
+Inc., 422 U. S. 922, 931 (1975); see also Gregory v. Stetson, 
+133 U. S. 579, 586 (1890) (“It is an elementary principle that 
+a court cannot adjudicate directly upon a person's right with­
+out having him either actually or constructively before it. 
+This principle is fundamental”); Baude & Bray, 137 Harv. 
+L. Rev., at 168 (noting the “party-specifc understanding of 
+what equitable remedies do”). 
+In fact, universal injunctions were not a feature of federal-
+court litigation until sometime in the 20th century. See 
+Bray, Multiple Chancellors 448–452 (discussing various ra­
+tionales for the birth of the universal injunction); see also 
+Application in No. 24A884, at 17–18. The D. C. Circuit is­
+sued what some regard as the frst universal injunction in 
+1963. See Wirtz v. Baldor Elec. Co., 337 F. 2d 518, 535 (en­
+joining the Secretary of Labor “with respect to the entire 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+845 
+Opinion of the Court 
+[electric motors and generators] industry,” not just the 
+named plaintiffs to the lawsuit).7 
+Yet such injunctions re­
+mained rare until the turn of the 21st century, when their 
+use gradually accelerated. See Bray, Multiple Chancellors 
+439–443 (referencing Flast v. Cohen, 392 U. S. 83 (1968), and 
+Harlem Valley Transp. Assn. v. Stafford, 360 F. Supp. 1057 
+(SDNY 1973)). One study identifed approximately 127 uni­
+versal injunctions issued between 1963 and 2023. See Dis­
+trict Court Reform: Nationwide Injunctions, 137 Harv. 
+L. Rev. 1701, 1705 (2024). Ninety-six of them—over three 
+quarters—were issued during the administrations of Presi­
+dent George W. Bush, President Obama, President Trump, 
+and President Biden. Ibid. 
+The bottom line? The universal injunction was conspicu­
+ously nonexistent for most of our Nation's history. Its ab­
+sence from 18th- and 19th-century equity practice settles the 
+question of judicial authority.8 
+See Grupo Mexicano, 527 
+7 There is some dispute about whether Wirtz was the frst universal 
+injunction. Professor Mila Sohoni points to other possible 20th-century 
+examples, including West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 
+(1943), Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Lewis Publish­
+ing Co. v. Morgan, 229 U. S. 288 (1913). See Sohoni, 133 Harv. L. Rev., at 
+943; Brief for Professor Mila Sohoni as Amica Curiae 3; see also post, at 
+898–899 (opinion of Sotomayor, J.). But see M. Morley, Disaggregating 
+the History of Nationwide Injunctions: A Response to Professor Sohoni, 
+72 Ala. L. Rev. 239, 252–256 (2020) (disputing these examples). Regard­
+less, under any account, universal injunctions postdated the founding by 
+more than a century—and under Grupo Mexicano, equitable authority 
+exercised under the Judiciary Act must derive from founding-era practice. 
+527 U. S., at 319. It also bears emphasis that none of these cases ad­
+dresses the propriety of universal relief. Like a “drive-by-jurisdictional 
+rulin[g],” implicit acquiescence to a broad remedy “ha[s] no precedential ef­
+fect.” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 91 (1998). 
+8 The principal dissent faults us for failing to identify a single founding-
+era case in which this Court held that universal injunctions exceed a federal 
+court's equitable authority. See post, at 905–906 (opinion of Sotomayor, 
+J.). But this absence only bolsters our case. That this Court had no occa­
+sion to reject the universal injunction as inconsistent with traditional eq­
+uity practice merely demonstrates that no party even bothered to ask for 
+Page Proof Pending Publication
+
+846 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+U. S., at 318–319. That the absence continued into the 20th 
+century renders any claim of historical pedigree still more 
+implausible. Even during the “deluge of constitutional liti­
+gation that occurred in the wake of Ex parte Young, through­
+out the Lochner Era, and at the dawn of the New Deal,” 
+universal injunctions were nowhere to be found. M. Morley, 
+Disaggregating the History of Nationwide Injunctions: A 
+Response to Professor Sohoni, 72 Ala. L. Rev. 239, 252 (2020) 
+(footnotes omitted). Had federal courts believed themselves 
+to possess the tool, surely they would not have let it lie idle. 
+Faced with this timeline, the principal dissent accuses us 
+of “misunderstand[ing] the nature of equity” as being “fr[o­
+zen] in amber . . . at the time of the Judiciary Act.” Post, 
+at 906 (opinion of Sotomayor, J.). Not so. We said it be­
+fore, see supra, at 841, and say it again: “[E]quity is fexible.” 
+Grupo Mexicano, 527 U. S., at 322. At the same time, its 
+“fexibility is confned within the broad boundaries of tradi­
+tional equitable relief.” 9 
+Ibid. A modern device need not 
+such a sweeping remedy—because no court would have entertained the 
+request. Cf. Grupo Mexicano, 527 U. S., at 332 (“[E]quitable powers con­
+ferred by the Judiciary Act of 1789 did not include the power to create 
+remedies previously unknown to equity jurisprudence”). 
+9 Notwithstanding Grupo Mexicano, the principal dissent invokes Ex 
+parte Young, 209 U. S. 123 (1908), as support for the proposition that eq­
+uity can encompass remedies that have “no analogue in the relief exercised 
+in the English Court of Chancery,” because Ex parte Young permits plain­
+tiffs to “obtain plaintiff-protective injunctions against Government off­
+cials,” and the English Court of Chancery “could not enjoin the Crown or 
+English offcers,” post, at 907 (opinion of Sotomayor, J.). But contrary 
+to the principal dissent's suggestion, Ex parte Young does not say—either 
+explicitly or implicitly—that courts may devise novel remedies that have 
+no background in traditional equitable practice. Historically, a court of 
+equity could issue an antisuit injunction to prevent an offcer from engag­
+ing in tortious conduct. Ex parte Young justifes its holding by reference 
+to a long line of cases authorizing suits against state offcials in certain 
+circumstances. See 209 U. S., at 150–152 (citing, e. g., Osborn v. Bank of 
+United States, 9 Wheat. 738 (1824); Governor of Georgia v. Madrazo, 1 
+Pet. 110 (1828); and Davis v. Gray, 16 Wall. 203 (1873)). Support for the 
+principal dissent's approach is found not in Ex parte Young, but in Justice 
+Ginsburg's partial dissent in Grupo Mexicano, which eschews the govern­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+847 
+Opinion of the Court 
+have an exact historical match, but under Grupo Mexicano, 
+it must have a founding-era antecedent. And neither the 
+universal injunction nor a suffciently comparable predeces­
+sor was available from a court of equity at the time of our 
+country's inception. See id., at 333. Because the universal 
+injunction lacks a historical pedigree, it falls outside the 
+bounds of a federal court's equitable authority under the Ju­
+diciary Act.10 
+See id., at 318–319. 
+B 
+Respondents raise several counterarguments, which the 
+principal dissent echoes. First, they insist that the univer­
+sal injunction has a suffcient historical analogue: a decree 
+resulting from a bill of peace. Second, they maintain that 
+universal injunctions are consistent with the principle that a 
+court of equity may fashion complete relief for the parties. 
+Third, they argue that universal injunctions serve important 
+policy objectives. 
+1 
+In an effort to satisfy Grupo Mexicano's historical test, 
+respondents claim that universal injunctive relief does have 
+a founding-era forebear: the decree obtained on a “bill of 
+peace,” which was a form of group litigation permitted 
+in English courts. See Opposition to Application in No. 
+24A884 (CASA), pp. 30–31; see also Brief for Professor Mila 
+Sohoni as Amica Curiae 6–8. This bill allowed the Chancel­
+lor to consolidate multiple suits that involved a “common 
+claim the plaintiff could have against multiple defendants” or 
+“some kind of common claim that multiple plaintiffs could 
+have against a single defendant.” Bray, Multiple Chancel­
+lors 426; see How v. Tenants of Bromsgrove, 1 Vern. 22, 23 
+ing historical approach in favor of “[a] dynamic equity jurisprudence.” 
+527 U. S., at 337 (opinion concurring in part and dissenting in part). 
+10 Nothing we say today resolves the distinct question whether the Ad­
+ministrative Procedure Act authorizes federal courts to vacate federal 
+agency action. See 5 U. S. C. § 706(2) (authorizing courts to “hold unlaw­
+ful and set aside agency action”). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+848 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+Eng. Rep. 277 (1681) (suit by a lord against his tenants collec­
+tively); Brown v. Vermuden, 1 Ch. Ca. 283, 22 Eng. Rep. 802 
+(1676), and Brown v. Vermuden, 1 Ch. Ca. 272, 22 Eng. Rep. 
+796 (1676) (suit by a parson against lead miners in a parish, 
+who named four of their members to defend the suit in a 
+representative capacity). Universal injunctions are analo­
+gous to this traditional equitable device, respondents say, so 
+federal courts have authority under the Judiciary Act to 
+issue them. 
+The analogy does not work. True, “bills of peace allowed 
+[courts of equity] to adjudicate the rights of members of dis­
+persed groups without formally joining them to a lawsuit 
+through the usual procedures.” Arizona v. Biden, 40 F. 4th 
+375, 397 (CA6 2022) (Sutton, C. J., concurring); see Story 
+§§ 120–135 (discussing representative suits). Even so, their 
+use was confned to limited circumstances. See 7A C. 
+Wright, A. Miller, & M. Kane, Federal Practice and Proce­
+dure § 1751, p. 10, and n. 4 (4th ed. 2021) (citing Adair v. New 
+River Co., 11 Ves. 429, 32 Eng. Rep. 1153 (Ch. 1803)). Unlike 
+universal injunctions, which reach anyone affected by legis­
+lative or executive action—no matter how large the group or 
+how tangential the effect—a bill of peace involved a “group 
+[that] was small and cohesive,” and the suit did not “resolve a 
+question of legal interpretation for the entire realm.” Bray, 
+Multiple Chancellors 426. And unlike universal injunctions, 
+which bind only the parties to the suit, decrees obtained on 
+a bill of peace “would bind all members of the group, whether 
+they were present in the action or not.” 7A Wright, Federal 
+Practice and Procedure § 1751, at 10; see Smith v. Sworm­
+stedt, 16 How. 288, 303 (1854) (When “a court of equity per­
+mits a portion of the parties in interest to represent the en­
+tire body . . . the decree binds all of them the same as if all 
+were before the court”); see also Story § 120 (“[I]n most, if 
+not in all, cases of this sort, the decree obtained upon such a 
+Bill will ordinarily be held binding upon all other persons 
+standing in the same predicament”). As Chief Judge Sutton 
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+849 
+Opinion of the Court 
+aptly put it, “[t]he domesticated animal known as a bill of 
+peace looks nothing like the dragon of nationwide injunc­
+tions.” Arizona, 40 F. 4th, at 397 (concurring opinion). 
+The bill of peace lives in modern form, but not as the uni­
+versal injunction. It evolved into the modern class action, 
+which is governed in federal court by Rule 23 of the Federal 
+Rules of Civil Procedure. 7A Wright, Federal Practice and 
+Procedure § 1751, at 10 (“It was the English bill of peace that 
+developed into what is now known as the class action”); see 
+Hansberry v. Lee, 311 U. S. 32, 41 (1940) (“The class suit was 
+an invention of equity”). And while Rule 23 is in some ways 
+“more restrictive of representative suits than the original 
+bills of peace,” Rodgers v. Bryant, 942 F. 3d 451, 464 (CA8 
+2019) (Stras, J., concurring), it would still be recognizable to 
+an English Chancellor. Rule 23 requires numerosity (such 
+that joinder is impracticable), common questions of law or 
+fact, typicality, and representative parties who adequately 
+protect the interests of the class. Fed. Rule Civ. Proc. 23(a). 
+The requirements for a bill of peace were virtually identical. 
+See 7A Wright, Federal Practice and Procedure § 1751, at 10, 
+and n. 4 (citing Adair, 11 Ves. 429, 32 Eng. Rep. 1153). None 
+of these requirements is a prerequisite for a universal 
+injunction. 
+Rule 23's limits on class actions underscore a signifcant 
+problem with universal injunctions. A “ `properly con­
+ducted class action,' ” we have said, “can come about in fed­
+eral courts in just one way—through the procedure set out 
+in Rule 23.” Smith v. Bayer Corp., 564 U. S. 299, 315 (2011); 
+Fed. Rule Civ. Proc. 23(a) (“One or more members of a class 
+may sue or be sued as representative parties on behalf of 
+all members only if ” Rule 23(a)'s requirements are satisfed 
+(emphasis added)). Yet by forging a shortcut to relief that 
+benefts parties and nonparties alike, universal injunctions 
+circumvent Rule 23's procedural protections and allow 
+“ `courts to “create de facto class actions at will.” ' ” Smith, 
+564 U. S., at 315 (quoting Taylor v. Sturgell, 553 U. S. 880, 
+
+850 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+901 (2008)). Why bother with a Rule 23 class action when 
+the quick fx of a universal injunction is on the table? Cf. 
+Grupo Mexicano, 527 U. S., at 330–331 (“Why go through the 
+trouble of complying with local attachment and garnishment 
+statutes when this all-purpose prejudgment injunction is 
+available?”). The principal dissent's suggestion that these 
+suits could have satisfed Rule 23's requirements simply 
+proves that universal injunctions are a class-action work­
+around. Post, at 902–903 (opinion of Sotomayor, J.). 
+The taxpayer suit is a similarly inadequate historical anal­
+ogy. Contra, post, at 901–902. In a successful taxpayer 
+suit, a court would enjoin the collection of an unlawful tax 
+against “taxpayers joined as co-plaintiffs, or by one taxpayer 
+suing on behalf of himself and all others similarly situated.” 
+1 Pomeroy, Equity Jurisprudence § 260, at 277. To be sure, 
+some state courts would occasionally “enjoin the enforce­
+ment and collection” of taxes against an “entire community,” 
+even when a “single taxpayer su[ed] on his own account.” 
+Id., at 277–278. But the practice of extending relief “with 
+respect to any taxpayer” was not adopted by state courts 
+until the mid-19th century, and even then, not all states were 
+willing to provide such sweeping relief. See Bray, Multiple 
+Chancellors 427. This post-founding practice of some state 
+courts thus sheds minimal light on federal courts' equitable 
+authority under the Judiciary Act. What is more, in Froth­
+ingham, we refused to allow a single taxpayer to challenge 
+a federal appropriations act. 262 U. S., at 486–487. That 
+counsels against placing much, if any, reliance on taxpayer 
+suits as justifcation for the modern universal injunction. 
+2 
+Respondents contend that universal injunctions—or at 
+least these universal injunctions—are consistent with the 
+principle that a court of equity may fashion a remedy that 
+awards complete relief. See Opposition to Application in 
+No. 24A884 (CASA), at 22–25; Opposition to Application in 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+851 
+Opinion of the Court 
+No. 24A885 (Washington), pp. 28–32; Opposition to Applica­
+tion in No. 24A886 (New Jersey), pp. 31–39. We agree that 
+the complete-relief principle has deep roots in equity. But 
+to the extent respondents argue that it justifes the award 
+of relief to nonparties, they are mistaken.11 
+“Complete relief” is not synonymous with “universal re­
+lief.” It is a narrower concept: The equitable tradition has 
+long embraced the rule that courts generally “may adminis­
+ter complete relief between the parties.” Kinney-Coastal 
+Oil Co. v. Kieffer, 277 U. S. 488, 507 (1928) (emphasis added). 
+While party-specifc injunctions sometimes “advantag[e] 
+nonparties,” Trump, 585 U. S., at 717 (Thomas, J., concur­
+ring), they do so only incidentally. 
+Consider an archetypal case: a nuisance in which one 
+neighbor sues another for blasting loud music at all hours of 
+the night. To afford the plaintiff complete relief, the court 
+has only one feasible option: order the defendant to turn her 
+11 Justice Jackson, for her part, thinks the “premise” that universal 
+injunctions provide relief to nonparties is “suspect” because, in her view, 
+“[n]onparties may beneft from an injunction, but only the plaintiff gets 
+relief.” Post, at 928–929, n. 2 (dissenting opinion). The availability of 
+contempt proceedings suggests otherwise. Consider the civil contempt 
+context. Under “traditional principles of equity practice,” courts may 
+“impos[e] civil contempt sanctions to `coerce [a] defendant into compliance' 
+with an injunction.” Taggart v. Lorenzen, 587 U. S. 554, 560 (2019) (quot­
+ing United States v. Mine Workers, 330 U. S. 258, 303–304 (1947)). Gener­
+ally, civil contempt proceedings occur between the original parties to the 
+lawsuit. See Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444– 
+445 (1911). But a federal court's “power in civil contempt proceedings is 
+determined by the requirements of full remedial relief” to “effect compli­
+ance with its decree.” McComb v. Jacksonville Paper Co., 336 U. S. 187, 
+193–194 (1949). And “[w]hen an order grants relief for a nonparty,” as is 
+the case with universal injunctions, “the procedure for enforcing the order 
+is the same as for a party.” Fed. Rule Civ. Proc. 71; see, e. g., Zamecnik 
+v. Indiana Prairie School Dist. No. 204, 636 F. 3d 874, 879 (CA7 2011). 
+So a nonparty covered by a universal injunction is likely to reap both the 
+practical beneft and the formal relief of the injunction. See M. Smith, 
+Only Where Justifed: Toward Limits and Explanatory Requirements for 
+Nationwide Injunctions, 95 Notre Dame L. Rev. 2013, 2019 (2020). 
+Page Proof Pending Publication
+
+852 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+music down—or better yet, off. That order will necessarily 
+beneft the defendant's surrounding neighbors too; there is 
+no way “to peel off just the portion of the nuisance that 
+harmed the plaintiff.” Rodgers, 942 F. 3d, at 462 (Stras, J., 
+concurring); see A. Woolhandler & C. Nelson, Does History 
+Defeat Standing Doctrine? 102 Mich. L. Rev. 689, 702 (2004). 
+But while the court's injunction might have the practical 
+effect of benefting nonparties, “that beneft [is] merely inci­
+dental.” Trump, 585 U. S., at 717 (Thomas, J., concurring); 
+see also 3 J. Pomeroy, Equity Jurisprudence § 1349, pp. 380– 
+381 (1883).12 
+As a matter of law, the injunction's protection 
+extends only to the suing plaintiff—as evidenced by the fact 
+that only the plaintiff can enforce the judgment against the 
+defendant responsible for the nuisance. If the nuisance per­
+sists, and another neighbor wants to shut it down, she must 
+fle her own suit.13 
+The individual and associational respondents are therefore 
+wrong to characterize the universal injunction as simply an 
+application of the complete-relief principle. Under this 
+principle, the question is not whether an injunction offers 
+complete relief to everyone potentially affected by an alleg­
+edly unlawful act; it is whether an injunction will offer com­
+plete relief to the plaintiffs before the court. See Califano 
+v. Yamasaki, 442 U. S. 682, 702 (1979) (“[I]njunctive relief 
+should be no more burdensome to the defendant than neces­
+sary to provide complete relief to the plaintiffs” (emphasis 
+added)). Here, prohibiting enforcement of the Executive 
+12 There may be other injuries for which it is all but impossible for courts 
+to craft relief that is complete and benefts only the named plaintiffs. 
+See, e. g., Shaw v. Hunt, 517 U. S. 899 (1996) (racially gerrymandered con­
+gressional maps). 
+13 The new plaintiff might be able to assert nonmutual offensive issue 
+preclusion. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 331–332 
+(1979) (setting forth prerequisites for applying the doctrine). But nonmu­
+tual offensive issue preclusion is unavailable against the United States. 
+United States v. Mendoza, 464 U. S. 154, 155 (1984). That universal in­
+junctions end-run this rule is one of the Government's objections to them. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+853 
+Opinion of the Court 
+Order against the child of an individual pregnant plaintiff 
+will give that plaintiff complete relief: Her child will not be 
+denied citizenship. Extending the injunction to cover all 
+other similarly situated individuals would not render her re­
+lief any more complete. 
+The complete-relief inquiry is more complicated for the 
+state respondents, because the relevant injunction does not 
+purport to directly beneft nonparties. Instead, the District 
+Court for the District of Massachusetts decided that a uni­
+versal injunction was necessary to provide the States them­
+selves with complete relief. See 766 F. Supp. 3d, at 288.14 
+The States maintain that the District Court made the right 
+call. See Opposition to Application in No. 24A886 (New Jer­
+sey), at 31–39. 
+As the States see it, their harms—fnancial injuries and 
+the administrative burdens fowing from citizen-dependent 
+benefts programs—cannot be remedied without a blanket 
+ban on the enforcement of the Executive Order. See, e. g., 
+id., at 9–11. Children often move across state lines or are 
+born outside their parents' State of residence. Id., at 31, 35. 
+Given the cross-border fow, the States say, a “patchwork 
+injunction” would prove unworkable, because it would re­
+quire them to track and verify the immigration status of the 
+parents of every child, along with the birth State of every 
+child for whom they provide certain federally funded bene­
+fts. Ibid. 
+The Government—unsurprisingly—sees matters differ­
+ently. It retorts that even if the injunction is designed to 
+beneft only the States, it is “more burdensome than neces­
+sary to redress” their asserted harms. Califano, 442 U. S., 
+at 702. After all, to say that a court can award complete 
+14 The District Court for the Western District of Washington acknowl­
+edged the state respondents' complete-relief argument but primarily 
+granted a universal injunction on the basis that the “extreme nature of 
+the equities . . . alone warrant[ed] nationwide relief.” 765 F. Supp. 3d 
+1142, 1153 (2025). 
+
+854 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+relief is not to say that it should do so. Complete relief is 
+not a guarantee—it is the maximum a court can provide. 
+And in equity, “the broader and deeper the remedy the plain­
+tiff wants, the stronger the plaintiff 's story needs to be.” S. 
+Bray & P. Miller, Getting into Equity, 97 Notre Dame L. Rev. 
+1763, 1797 (2022). In short, “[t]he essence of equity jurisdic­
+tion has been the power of the Chancellor to do equity and to 
+mould each decree to the necessities of the particular case.” 
+Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944). 
+Leaning on these principles, the Government contends 
+that narrower relief is appropriate. For instance, the Dis­
+trict Court could forbid the Government to apply the Execu­
+tive Order within the respondent States, including to chil­
+dren born elsewhere but living in those States. Application 
+in No. 24A884, at 23. Or, the Government says, the District 
+Court could direct the Government to “treat covered chil­
+dren as eligible for purposes of federally funded welfare ben­
+efts.” Ibid. It asks us to stay the injunction insofar as it 
+sweeps too broadly. 
+We decline to take up these arguments in the frst in­
+stance. The lower courts should determine whether a nar­
+rower injunction is appropriate; we therefore leave it to 
+them to consider these and any related arguments. 
+3 
+Respondents also defend universal injunctions as a matter 
+of policy. They argue that a universal injunction is some­
+times the only practical way to quickly protect groups from 
+unlawful government action. See Opposition to Application 
+in No. 24A884 (CASA), at 26–27; see also A. Frost, In De­
+fense of Nationwide Injunctions, 93 N. Y. U. L. Rev. 1065, 
+1090–1094 (2018) (suggesting that universal injunctions are 
+appropriate when not all interested individuals can come 
+quickly to court); post, at 914–915 (Sotomayor, J., dissenting). 
+Respondents also contend that universal injunctions are an 
+appropriate remedy to preserve equal treatment among indi­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+855 
+Opinion of the Court 
+viduals when the Executive Branch adopts a facially unlaw­
+ful policy. Opposition to Application in No. 24A884 (CASA), 
+at 25–27; cf. post, at 899 (Sotomayor, J., dissenting). And 
+they suggest that forcing plaintiffs to proceed on an individ­
+ual basis can result in confusion or piecemeal litigation that 
+imposes unnecessary costs on courts and others. See Oppo­
+sition to Application in No. 24A885 (Washington), at 31–32; 
+Frost, 93 N. Y. U. L. Rev., at 1098–1101; see also post, at 
+908 (Sotomayor, J., dissenting). So, they insist, universal 
+injunctions must be permitted for the good of the system. 
+The Government advances policy arguments running the 
+other way. Echoing Chief Judge Sutton, the Government 
+asserts that avoiding a patchwork enforcement system is a 
+justifcation that “lacks a limiting principle and would make 
+nationwide injunctions the rule rather than the exception” 
+for challenges to many kinds of federal law. Arizona, 40 
+F. 4th, at 397 (concurring opinion). It stresses—as the prin­
+cipal dissent also observes—that universal injunctions incen­
+tivize forum shopping, since a successful challenge in one ju­
+risdiction entails relief nationwide. See Application in No. 
+24A884, at 19–20; see also post, at 899–900 (opinion of Soto-
+mayor, J.). In a similar vein, the Government observes that 
+universal injunctions operate asymmetrically: A plaintiff 
+must win just one suit to secure sweeping relief. But to 
+fend off such an injunction, the Government must win every­
+where. See Application in No. 24A884, at 19–20; see also post, 
+at 900 (opinion of Sotomayor, J.) (acknowledging this con­
+cern).15 
+Moreover, the Government contends, the practice of 
+universal injunctions means that highly consequential cases 
+are often decided in a “fast and furious” process of “ `rushed, 
+15 The Government contrasts this with class actions. A judgment in a 
+Rule 23 class action (favorable or not) binds the whole class—so if the 
+defendant wins, it is protected from future suits. But because an adverse 
+ruling on a request for universal relief lacks this preclusive effect, plain­
+tiffs can continue to fle in different forums until they fnd a court willing 
+to award such relief. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+856 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+high-stakes, [and] low-information' ” decisionmaking. Lab­
+rador, 601 U. S., at 1119 (Gorsuch, J., concurring in grant of 
+stay). When a district court issues a universal injunction, 
+thereby halting the enforcement of federal policy, the 
+Government says that it has little recourse but to proceed to 
+the court of appeals for an emergency stay. The loser in 
+the court of appeals will then seek a stay from this Court. 
+See Application in No. 24A884, at 20. This process forces 
+courts to resolve signifcant and diffcult questions of law on 
+a highly expedited basis and without full briefng. See 
+ibid.16 
+The upshot: As with most disputed issues, there are argu­
+ments on both sides. But as with most questions of law, the 
+policy pros and cons are beside the point. Under our well-
+established precedent, the equitable relief available in the 
+federal courts is that “traditionally accorded by courts of 
+equity” at the time of our founding. Grupo Mexicano, 527 
+U. S., at 319. Nothing like a universal injunction was avail­
+able at the founding, or for that matter, for more than a cen­
+tury thereafter. Thus, under the Judiciary Act, federal 
+courts lack authority to issue them. 
+C 
+The principal dissent focuses on conventional legal terrain, 
+like the Judiciary Act of 1789 and our cases on equity. Jus­
+16 Acknowledging these problems, the principal dissent admits that 
+“[t]here may be good reasons not to issue universal injunctions in the typi­
+cal case.” Post, at 900 (opinion of Sotomayor, J.). This concession, while 
+welcome, is inconsistent with the position that the universal injunction is 
+a “nothing to see here” extension of the kind of decree obtained on a bill 
+of peace. Neither the principal dissent nor respondents have pointed to 
+any evidence that such decrees presented any of the universal injunction's 
+systemic problems or that they were reserved for situations in which the 
+defendant's conduct was “patently unconstitutional” and risked “excep­
+tional” harm. Post, at 899–900. It is precisely because the universal in­
+junction is a new, potent remedy that it poses new, potent risks. Our 
+observation in Grupo Mexicano rings true here: “Even when sitting as a 
+court in equity, we have no authority to craft a `nuclear weapon' of the 
+law.” 527 U. S., at 332. 
+
+Cite as: 606 U. S. 831 (2025) 
+857 
+Opinion of the Court 
+tice Jackson, however, chooses a startling line of attack 
+that is tethered neither to these sources nor, frankly, to any 
+doctrine whatsoever. Waving away attention to the limits 
+on judicial power as a “mind-numbingly technical query,” 
+post, at 922 (dissenting opinion), she offers a vision of the 
+judicial role that would make even the most ardent defender 
+of judicial supremacy blush. In her telling, the fundamental 
+role of courts is to “order everyone (including the Executive) 
+to follow the law—full stop.” Ibid.; see also post, at 930 
+(“[T]he function of the courts—both in theory and in prac­
+tice—necessarily includes announcing what the law requires 
+in . . . suits for the beneft of all who are protected by the 
+Constitution, not merely doling out relief to injured private 
+parties”); see also post, at 930–931, n. 3, 935. And, she 
+warns, if courts lack the power to “require the Executive to 
+adhere to law universally,” post, at 935, courts will leave a 
+“gash in the basic tenets of our founding charter that could 
+turn out to be a mortal wound,” post, at 932. 
+Rhetoric aside, Justice Jackson's position is diffcult to 
+pin down. She might be arguing that universal injunctions 
+are appropriate—even required—whenever the defendant is 
+part of the Executive Branch. See, e. g., post, at 923, 930–932, 
+936–937. If so, her position goes far beyond the mainstream 
+defense of universal injunctions. See, e. g., Frost, 93 N. Y. U. 
+L. Rev., at 1069 (“Nationwide injunctions come with signif­
+cant costs and should never be the default remedy in cases 
+challenging federal executive action”). As best we can tell, 
+though, her argument is more extreme still, because its logic 
+does not depend on the entry of a universal injunction: Jus­
+tice Jackson appears to believe that the reasoning behind 
+any court order demands “universal adherence,” at least 
+where the Executive is concerned. Post, at 922 (dissenting 
+opinion). In her law-declaring vision of the judicial function, 
+a district court's opinion is not just persuasive, but has the 
+legal force of a judgment. But see Haaland v. Brackeen, 
+599 U. S. 255, 294 (2023) (“It is a federal court's judgment, 
+not its opinion, that remedies an injury”). Once a single dis­
+Page Proof Pending Publication
+
+858 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+trict court deems executive conduct unlawful, it has stated 
+what the law requires. And the Executive must conform to 
+that view, ceasing its enforcement of the law against any­
+one, anywhere.17 
+We will not dwell on Justice Jackson's argument, which 
+is at odds with more than two centuries' worth of precedent, 
+not to mention the Constitution itself. We observe only this: 
+Justice Jackson decries an imperial Executive while em­
+bracing an imperial Judiciary. 
+No one disputes that the Executive has a duty to follow the 
+law. But the Judiciary does not have unbridled authority to 
+enforce this obligation—in fact, sometimes the law prohibits 
+the Judiciary from doing so. See, e. g., Marbury v. Madison, 
+1 Cranch 137 (1803) (concluding that James Madison had vio­
+lated the law but holding that the Court lacked jurisdiction 
+to issue a writ of mandamus ordering him to follow it). But 
+see post, at 935 (Jackson, J., dissenting) (“If courts do not 
+have the authority to require the Executive to adhere to law 
+universally, . . . compliance with law sometimes becomes a 
+matter of Executive prerogative”). Observing the limits on 
+judicial authority—including, as relevant here, the bound­
+aries of the Judiciary Act of 1789—is required by a judge's 
+oath to follow the law. 
+17 Think about what this position means. If a judge in the District of 
+Alaska holds that a criminal statute is unconstitutional, can the United 
+States prosecute a defendant under that statute in the District of Mary­
+land? Perhaps Justice Jackson would instinctively say yes; it is hard 
+to imagine anyone saying no. But why, on Justice Jackson's logic, does 
+it not violate the rule of law for the Executive to initiate a prosecution 
+elsewhere? See post, at 922 (dissenting opinion). Among its many prob­
+lems, Justice Jackson's view is at odds with our system of divided judi­
+cial authority. See, e. g., this Court's Rule 10(a) (identifying confict in the 
+decisions of the courts of appeals as grounds for granting certiorari). It 
+is also in considerable tension with the reality that district court opinions 
+lack precedential force even vis-à-vis other judges in the same judicial 
+district. See Camreta v. Greene, 563 U. S. 692, 709, n. 7 (2011). 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+859 
+Opinion of the Court 
+Justice Jackson skips over that part. Because analyz­
+ing the governing statute involves boring “legalese,” post, at 
+923, she seeks to answer “a far more basic question of enor­
+mous legal and practical signifcance: May a federal court in 
+the United States of America order the Executive to follow 
+the law?” Ibid. In other words, it is unnecessary to con­
+sider whether Congress has constrained the Judiciary; what 
+matters is how the Judiciary may constrain the Executive. 
+Justice Jackson would do well to heed her own admonition: 
+“[E]veryone, from the President on down, is bound by law.” 
+Ibid. That goes for judges too. 
+IV 
+Finally, the Government must show a likelihood that it will 
+suffer irreparable harm absent a stay. Nken, 556 U. S., at 
+434–435. When a federal court enters a universal injunction 
+against the Government, it “improper[ly] intru[des]” on “a 
+coordinate branch of the Government” and prevents the Gov­
+ernment from enforcing its policies against nonparties. INS 
+v. Legalization Assistance Project of Los Angeles County 
+Federation of Labor, 510 U. S. 1301, 1306 (1993) (O'Connor, 
+J., in chambers). That is enough to justify interim relief. 
+The principal dissent disagrees, insisting that “it strains 
+credulity to treat the Executive Branch as irreparably 
+harmed” by these injunctions, even if they are overly broad. 
+Post, at 894 (opinion of Sotomayor, J.); see also Opposition 
+to Application in No. 24A884 (CASA), at 16–20. That is so, 
+the principal dissent argues, because the Executive Order is 
+unconstitutional. Thus, “the Executive Branch has no right 
+to enforce [it] against anyone.” Post, at 893. 
+The principal dissent's analysis of the Executive Order is 
+premature because the birthright citizenship issue is not be­
+fore us.18 
+And because the birthright citizenship issue is not 
+18 The dissent worries that the Citizenship Clause challenge will never 
+reach this Court, because if the plaintiffs continue to prevail, they will 
+have no reason to petition for certiorari. And if the Government keeps 
+Page Proof Pending Publication
+
+860 
+TRUMP v. CASA, INC. 
+Opinion of the Court 
+before us, we take no position on whether the dissent's analy­
+sis is right. The dissent is wrong to say, however, that a 
+stay applicant cannot demonstrate irreparable harm from a 
+threshold error without also showing that, at the end of the 
+day, it will prevail on the underlying merits. That is not 
+how the Nken factors work. See 556 U. S., at 434. For in­
+stance, when we are asked to stay an execution on the 
+grounds of a serious legal question, we ask whether the capi­
+tal defendant is likely to prevail on the merits of the issue 
+before us, not whether he is likely to prevail on the merits 
+of the underlying suit. See, e. g., Gutierrez v. Saenz, 603 
+U. S. 937 (2024) (granting application for a stay based on a 
+question implicating the prisoner's standing to attempt to 
+access DNA testing). The same is true when an applicant 
+seeks a stay in other contexts. See, e. g., Offce of Personnel 
+Management v. American Federation of Government Em­
+ployees, 604 U. S. ––– (2025) (granting application for stay 
+because the organizational plaintiffs' allegations were “insuf­
+fcient to support [their] standing”). So too here. 
+The question before us is whether the Government is 
+likely to suffer irreparable harm from the District Courts' 
+entry of injunctions that likely exceed the authority con­
+ferred by the Judiciary Act. The answer to that question is 
+yes. See Coleman v. Paccar Inc., 424 U. S. 1301, 1307–1308 
+(1976) (Rehnquist, C. J., in chambers); Trump v. Interna­
+tional Refugee Assistance Project, 582 U. S. 571, 578–579 
+(2017) (per curiam); see also Maryland v. King, 567 U. S. 
+losing, it will “ha[ve] no incentive to fle a petition here . . . because the 
+outcome of such an appeal would be preordained.” Post, at 918 (opinion 
+of Sotomayor, J.). But at oral argument, the Solicitor General acknowl­
+edged that challenges to the Executive Order are pending in multiple cir­
+cuits, Tr. of Oral Arg. 50, and when asked directly “When you lose one of 
+those, do you intend to seek cert?”, the Solicitor General responded, “yes, 
+absolutely.” Ibid. And while the dissent speculates that the Govern­
+ment would disregard an unfavorable opinion from this Court, the Solicitor 
+General represented that the Government will respect both the judgments 
+and the opinions of this Court. See id., at 62–63. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+861 
+Opinion of the Court 
+1301, 1303 (2012) (Roberts, C. J., in chambers) (“ `[A]ny time 
+a State is enjoined by a court from effectuating statutes 
+enacted by representatives of its people, it suffers a form of 
+irreparable injury' ” (alteration in original)). And the bal­
+ance of equities does not counsel against awarding the Gov­
+ernment interim relief: Partial stays will cause no harm to 
+respondents because they will remain protected by the pre­
+liminary injunctions to the extent necessary and appropriate 
+to afford them complete relief. 
+*
+*
+* 
+Some say that the universal injunction “give[s] the Judi­
+ciary a powerful tool to check the Executive Branch.” 
+Trump, 585 U. S., at 720 (Thomas, J., concurring) (citing S. 
+Amdur & D. Hausman, Nationwide Injunctions and Nation­
+wide Harm, 131 Harv. L. Rev. Forum 49, 51, 54 (2017); S. 
+Malveaux, Class Actions, Civil Rights, and the National In­
+junction, 131 Harv. L. Rev. Forum, 56, 57, 60–62 (2017)). 
+But federal courts do not exercise general oversight of the 
+Executive Branch; they resolve cases and controversies con­
+sistent with the authority Congress has given them. When 
+a court concludes that the Executive Branch has acted un­
+lawfully, the answer is not for the court to exceed its 
+power, too. 
+The Government's applications to partially stay the pre­
+liminary injunctions are granted, but only to the extent that 
+the injunctions are broader than necessary to provide com­
+plete relief to each plaintiff with standing to sue. The lower 
+courts shall move expeditiously to ensure that, with respect 
+to each plaintiff, the injunctions comport with this rule and 
+otherwise comply with principles of equity. The injunctions 
+are also stayed to the extent that they prohibit executive 
+agencies from developing and issuing public guidance about 
+the Executive's plans to implement the Executive Order. 
+Consistent with the Solicitor General's representation, § 2 of 
+
+862 
+TRUMP v. CASA, INC. 
+Thomas, J., concurring 
+the Executive Order shall not take effect until 30 days after 
+the date of this opinion. See Tr. of Oral Arg. 55. 
+It is so ordered. 
+Justice Thomas, with whom Justice Gorsuch joins, 
+concurring. 
+The Court today holds that federal courts may not issue 
+so-called universal injunctions. I agree and join in full. As 
+the Court explains, the Judiciary Act of 1789—the statute 
+that “ `authorizes the federal courts to issue equitable reme­
+dies' ”—does not permit universal injunctions. Ante, at 841. 
+It authorizes only those remedies traditionally available in 
+equity, and there is no historical tradition allowing courts to 
+provide “relief that extend[s] beyond the parties.” Ante, at 
+841–847. That conclusion is dispositive: As I have pre­
+viously explained, “[i]f district courts have any authority to 
+issue universal injunctions,” it must come from some specifc 
+statutory or constitutional grant. Trump v. Hawaii, 585 
+U. S. 667, 713–714 (2018) (concurring opinion). But, the Ju­
+diciary Act is the only real possibility, and serious constitu­
+tional questions would arise even if Congress purported to 
+one day allow universal injunctions. See id., at 714, n. 2; 
+see also United States v. Texas, 599 U. S. 670, 693–694 (2023) 
+(Gorsuch, J., concurring in judgment). 
+I write separately to emphasize the majority's guidance 
+regarding how courts should tailor remedies specifc to the 
+parties. Courts must not distort “the rule that injunctive 
+relief should be no more burdensome to the defendant than 
+necessary to provide complete relief to the plaintiffs.” Cali­
+fano v. Yamasaki, 442 U. S. 682, 702 (1979). Otherwise, they 
+risk replicating the problems of universal injunctions under 
+the guise of granting complete relief. 
+As the Court recognizes, the complete-relief principle op­
+erates as a ceiling: In no circumstance can a court award 
+relief beyond that necessary to redress the plaintiffs' inju­
+ries. See ante, at 854 (“Complete relief is not a guarantee— 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+863 
+Thomas, J., concurring 
+it is the maximum a court can provide”). This limitation 
+follows from both Article III and traditional equitable prac­
+tice. Because Article III limits courts to resolving specifc 
+“Cases” and “Controversies,” see U. S. Const., Art. III, § 2, 
+it requires that any remedy “be tailored to redress the plain­
+tiff's particular injury.” Gill v. Whitford, 585 U. S. 48, 73 
+(2018). And, equitable remedies historically operated on 
+a plaintiff-specifc basis. Ante, at 842–844. Accordingly, 
+any “remedy must of course be limited to the inadequacy 
+that produced the injury in fact that the plaintiff has estab­
+lished.” Lewis v. Casey, 518 U. S. 343, 357 (1996). 
+Courts therefore err insofar as they treat complete relief 
+as a mandate. Some judges have read our precedents to sug­
+gest that courts should provide plaintiffs whatever remedy is 
+necessary to give them complete relief. See, e. g., Mock v. 
+Garland, 75 F. 4th 563, 587 (CA5 2023) (“[I]njunctions should 
+be crafted to `provide complete relief to the plaintiffs' ”); Z. 
+Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095, 
+2106 (2017) (“[C]ourts . . . tailor their injunctions to provide 
+complete relief to the parties—no less and no more”). But, 
+that reading misunderstands the complete-relief principle. 
+This principle refects the equitable “rule that courts gen­
+erally `may administer complete relief between the parties.' ” 
+Ante, at 851 (emphasis deleted). It is an important “aim of 
+the law of remedies . . . to put the plaintiff in her rightful 
+position.” S. Bray, Multiple Chancellors: Reforming the Na­
+tional Injunction, 131 Harv. L. Rev. 417, 466 (2017) (Bray). 
+But, “to say that a court can award complete relief is not to 
+say that it should do so.” Ante, at 853–854. And, in some 
+circumstances, a court cannot award complete relief. 
+As the Court today affrms, any relief must fall within tra­
+ditional limits on a court's equitable powers. See ante, at 
+841–842 (citing Grupo Mexicano de Desarrollo, S. A. v. Alli­
+ance Bond Fund, Inc., 527 U. S. 308, 319 (1999); Payne v. Hook, 
+7 Wall. 425, 430 (1869)). Courts must ask whether the relief 
+plaintiffs seek “was traditionally accorded by courts of eq­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+864 
+TRUMP v. CASA, INC. 
+Thomas, J., concurring 
+uity.” Grupo Mexicano, 527 U. S., at 319. And, they must 
+ensure that any injunctions comport with both the complete-
+relief principle and other “principles of equity.” Ante, at 
+861. For example, courts may need to weigh considerations 
+such as equity's concern “with justice . . . also for the defend­
+ant.” Bray 468; see H. McClintock, Handbook of the Princi­
+ples of Equity 78 (2d ed. 1948). In some cases, traditional 
+equitable limits will require courts and plaintiffs to make do 
+with less than complete relief. 
+This Court's decision in Frothingham v. Mellon, decided 
+with Massachusetts v. Mellon, 262 U. S. 447 (1923), exempli­
+fes this constraint. Appellant Frothingham sought to “en­
+join the execution of a federal appropriation act” on the 
+grounds that the Act exceeded the Government's authority 
+and that its execution would improperly increase her tax 
+burden. Id., at 479, 486. On a maximalist view of the 
+complete-relief principle, Frothingham would have been 
+entitled to a national injunction had her claim been meritori­
+ous. After all, “a prohibition on using her tax money for 
+the [statute] would have been wholly ineffectual” in remedy­
+ing the injury caused by unlawful federal spending, given 
+“the fungibility of money”: The Government would still have 
+been free to execute the statute, so long as it labeled the 
+underlying funds as coming from other taxpayers. Bray 
+431. A court thus would have needed to enjoin all spending 
+under the statute to provide effective relief. But, this Court 
+rejected Frothingham's request for such an injunction as be­
+yond “the preventive powers of a court of equity.” 262 
+U. S., at 487. Among other reasons, it emphasized that an 
+individual taxpayer's “interest in the moneys of the Treas­
+ury” was “comparatively minute and indeterminable,” and 
+that the petitioner had not suffered any “direct injury” but 
+rather was “suffer[ing] in some indefnite way in common 
+with people generally.” Id., at 487–488.* 
+*Although courts now treat Frothingham primarily as a case about tax­
+payer standing, its analysis in fact “intertwine[d] concepts of equity, reme­
+dies, and the judicial power.” Bray 430–433; see ante, at 844. 
+
+Cite as: 606 U. S. 831 (2025) 
+865 
+Thomas, J., concurring 
+To be sure, “[w]hat counts as complete relief” can be a 
+diffcult question. Bray 467. Many plaintiffs argue that 
+only sweeping relief can redress their injuries. And, I do 
+not dispute that there will be cases requiring an “indivisible 
+remedy” that incidentally benefts third parties, Tr. of Oral 
+Arg. 14–15, such as “[i]njunctions barring public nuisances,” 
+Hawaii, 585 U. S., at 717 (Thomas, J., concurring). But, 
+such cases are by far the exception. 
+An indivisible remedy is appropriate only when it would 
+be “all but impossible” to devise relief that reaches only the 
+plaintiffs. Ante, at 852, n. 12. Such impossibility is a high 
+bar. For example, the Court today readily dispatches with 
+the individual and associational respondents' position that 
+they require a universal injunction, notwithstanding their 
+argument that a “plaintiff-specifc injunction” would be dif­
+fcult to administer and would subject the associations' mem­
+bers to the burden of having “to identify and disclose to the 
+government” their membership. Tr. of Oral Arg. 141–142. 
+As the Court recognizes, “prohibiting enforcement of the Ex­
+ecutive Order against the child of an individual pregnant 
+plaintiff” is all that is required to “give that plaintiff com­
+plete relief.” Ante, at 852–853. Courts may not use the 
+complete-relief principle to revive the universal injunction. 
+*
+*
+* 
+For good reason, the Court today puts an end to the “in­
+creasingly common” practice of federal courts issuing uni­
+versal injunctions. Hawaii, 585 U. S., at 713 (Thomas, J., 
+concurring). The Court also makes clear that the complete-
+relief principle provides a ceiling on federal courts' authority, 
+which must be applied alongside other “principles of equity” 
+and our holding that universal injunctions are impermissible. 
+Ante, at 861. Lower courts should carefully heed this 
+Court's guidance and cabin their grants of injunctive relief 
+in light of historical equitable limits. If they cannot do so, 
+this Court will continue to be “dutybound” to intervene. 
+Hawaii, 585 U. S., at 721 (Thomas, J., concurring). 
+Page Proof Pending Publication
+
+866 
+TRUMP v. CASA, INC. 
+Alito, J., concurring 
+Justice Alito, with whom Justice Thomas joins, 
+concurring. 
+I join the opinion of the Court but write separately to note 
+two related issues that are left unresolved and potentially 
+threaten the practical signifcance of today's decision: the 
+availability of third-party standing and class certifcation. 
+First, the Court does not address the weighty issue 
+whether the state plaintiffs have third-party standing to as­
+sert the Citizenship Clause claims of their individual resi­
+dents. See ante, at 838, n. 2; see also ante, at 861 (“The 
+Government's applications to partially stay the preliminary 
+injunctions are granted, but only to the extent that the in­
+junctions are broader than necessary to provide complete re­
+lief to each plaintiff with standing to sue” (emphasis added)). 
+Ordinarily, “a litigant must assert his or her own legal rights 
+and interests, and cannot rest a claim to relief on the legal 
+rights or interests of third parties.” Powers v. Ohio, 499 
+U. S. 400, 410 (1991). In limited circumstances, however, the 
+Court has permitted a party to assert the rights of a third 
+party. Admittedly, the Court has not pinned down the pre­
+cise circumstances in which third-party standing is permissi­
+ble. See Lexmark Int'l, Inc. v. Static Control Components, 
+Inc., 572 U. S. 118, 127, n. 3 (2014). And commentators have 
+emphasized the need for “greater doctrinal coherence.” C. 
+Bradley & E. Young, Unpacking Third-Party Standing, 131 
+Yale L. J. 1, 7 (2021) (Bradley & Young). 
+But at a minimum, we have said that a litigant seeking to 
+assert the legal rights or interests of others must demon­
+strate ordinary Article III standing for itself and answer the 
+additional “threshold question whether [it has] standing to 
+raise the rights of others.” Kowalski v. Tesmer, 543 U. S. 
+125, 129 (2004). But see FDA v. Alliance for Hippocratic 
+Medicine, 602 U. S. 367, 398 (2024) (Thomas, J., concurring). 
+This latter requirement, as we have explained, entails a 
+showing that the litigant has a “close relationship” to the 
+right holder and that there is some “ `hindrance' ” to the right 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 606 U. S. 831 (2025) 
+867 
+Alito, J., concurring 
+holder's ability to “protect his own interests.” Kowalski, 
+543 U. S., at 130 (quoting Powers, 499 U. S., at 411). So long 
+as third-party standing doctrine remains good law, federal 
+courts should take care to apply these limitations conscien­
+tiously, including against state plaintiffs. That is especially 
+so in cases such as these, in which the parties claiming third-
+party standing (i. e., the States) are not directly subject to 
+the challenged policy in the relevant respect and face, at 
+most, collateral injuries. See Bradley & Young 56–60. 
+Today's decision only underscores the need for rigorous 
+and evenhanded enforcement of third-party-standing limita­
+tions. The Court holds today that injunctive relief should 
+generally extend only to the suing plaintiff. See ante, at 
+851–852. That will have the salutary effect of bringing an 
+end to the practice of runaway “universal” injunctions, but 
+it leaves other questions unanswered. Perhaps most impor­
+tant, when a State brings a suit to vindicate the rights of 
+individual residents and then procures injunctive relief, does 
+the injunction bind the defendant with respect to all resi­
+dents of that State? If so, States will have every incentive 
+to bring third-party suits on behalf of their residents to ob­
+tain a broader scope of equitable relief than any individual 
+resident could procure in his own suit. Left unchecked, the 
+practice of refexive state third-party standing will under­
+mine today's decision as a practical matter. 
+Second, today's decision will have very little value if dis­
+trict courts award relief to broadly defned classes without 
+following “Rule 23's procedural protections” for class certif­
+cation. Ante, at 849. The class action is a powerful tool, 
+and we have accordingly held that class “certifcation is 
+proper only if the trial court is satisfed, after a rigorous analy­
+sis, that the prerequisites of Rule 23(a) have been satisfed.” 
+Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 350–351 (2011) 
+(internal quotation marks omitted). These requirements 
+are more than “a mere pleading standard,” id., at 350, and a 
+hasty application of Rule 23 of the Federal Rules of Civil 
+
+868 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+Procedure can have drastic consequences, creating “potential 
+unfairness” for absent class members and confusion (and 
+pressure to settle) for defendants. General Telephone Co. of 
+Southwest v. Falcon, 457 U. S. 147, 161 (1982). Recognizing 
+these effects, Congress took the exceptional step of authoriz­
+ing interlocutory review of class certifcation. See Fed. 
+Rule Civ. Proc. 23(f). 
+Putting the kibosh on universal injunctions does nothing 
+to disrupt Rule 23's requirements. Of course, Rule 23 may 
+permit the certifcation of nationwide classes in some dis­
+crete scenarios. But district courts should not view today's 
+decision as an invitation to certify nationwide classes with­
+out scrupulous adherence to the rigors of Rule 23. Other­
+wise, the universal injunction will return from the grave 
+under the guise of “nationwide class relief,” and today's deci­
+sion will be of little more than minor academic interest. 
+*
+*
+* 
+Lax enforcement of the requirements for third-party 
+standing and class certifcation would create a potentially 
+significant loophole to today's decision. Federal courts 
+should thus be vigilant against such potential abuses of these 
+tools. I do not understand the Court's decision to refect 
+any disagreement with these concerns, so I join its decision 
+in full. 
+Justice Kavanaugh, concurring. 
+The plaintiffs here sought preliminary injunctions against 
+enforcement of the President's Executive Order on birth­
+right citizenship. The District Courts granted universal 
+preliminary injunctions—that is, injunctions prohibiting en­
+forcement of the Executive Order against anyone. Under 
+the Court's holding today, district courts issuing injunctions 
+under the authority afforded by the Judiciary Act of 1789 
+may award only plaintiff-specifc relief. I join the Court's 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+869 
+Kavanaugh, J., concurring 
+careful and persuasive opinion, which will bring needed clar­
+ity to the law of remedies. 
+To be sure, in the wake of the Court's decision, plaintiffs 
+who challenge the legality of a new federal statute or execu­
+tive action and request preliminary injunctive relief may 
+sometimes seek to proceed by class action under Federal 
+Rule of Civil Procedure 23(b)(2) and ask a court to award 
+preliminary classwide relief that may, for example, be state­
+wide, regionwide, or even nationwide. See ante, at 849–850; 
+A. A. R. P. v. Trump, 605 U. S. 91, 98 (2025) (per curiam); 
+Califano v. Yamasaki, 442 U. S. 682, 701–703 (1979). And 
+in cases under the Administrative Procedure Act, plaintiffs 
+may ask a court to preliminarily “set aside” a new agency 
+rule. 5 U. S. C. § 706(2); see, e. g., West Virginia v. EPA, 
+577 U. S. 1126 (2016); see also Corner Post, Inc. v. Board of 
+Governors, 603 U. S. 799, 826–843 (2024) (Kavanaugh, J., 
+concurring).1 
+But importantly, today's decision will require district 
+courts to follow proper legal procedures when awarding such 
+relief. Most signifcantly, district courts can no longer 
+award preliminary nationwide or classwide relief except 
+when such relief is legally authorized. And that salutary 
+development will help bring substantially more order and 
+discipline to the ubiquitous preliminary litigation over new 
+federal statutes and executive actions. 
+I write separately simply to underscore that this case fo­
+cuses on only one discrete aspect of the preliminary litigation 
+relating to major new federal statutes and executive ac­
+tions—namely, what district courts may do with respect to 
+those new statutes and executive actions in what might be 
+called “the interim before the interim.” Although district 
+courts have received much of the attention (and criticism) 
+1 In addition, as the Court notes, an injunction granting complete relief 
+to plaintiffs may also, as a practical matter, beneft nonparties. Ante, at 
+850–854. 
+Page Proof Pending Publication
+
+870 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+in debates over the universal-injunction issue, those courts 
+generally do not have the last word when they grant or deny 
+preliminary injunctions. The courts of appeals and this 
+Court can (and regularly do) expeditiously review district 
+court decisions awarding or denying preliminary injunctive 
+relief. The losing party in the district court—the defendant 
+against whom an injunction is granted, or the plaintiff who 
+is denied an injunction—will often go to the court of appeals 
+to seek a temporary stay or injunction. And then the losing 
+party in the court of appeals may promptly come to this 
+Court with an application for a stay or injunction. This 
+Court has therefore often acted as the ultimate decider of 
+the interim legal status of major new federal statutes and 
+executive actions. See, e. g., Ohio v. EPA, 603 U. S. 279 
+(2024); Danco Laboratories, LLC v. Alliance for Hippocratic 
+Medicine, 598 U. S. ––– (2023); National Federation of Inde­
+pendent Business v. OSHA, 595 U. S. 109 (2022) (per cu­
+riam); Alabama Assn. of Realtors v. Department of Health 
+and Human Servs., 594 U. S. 758 (2021) (per curiam); see 
+also Labrador v. Poe, 601 U. S. 1110, 1121–1122 (2024) (Kava­
+naugh, J., concurring in grant of stay). 
+After today's decision, that order of operations will not 
+change. In justiciable cases, this Court, not the district 
+courts or courts of appeals, will often still be the ultimate 
+decisionmaker as to the interim legal status of major new 
+federal statutes and executive actions—that is, the interim 
+legal status for the several-year period before a fnal decision 
+on the merits. 
+I 
+The Court's decision today focuses on the “interim before 
+the interim”—the preliminary relief that district courts can 
+award (and courts of appeals can approve) for the generally 
+weeks-long interim before this Court can assess and settle 
+the matter for the often years-long interim before a fnal 
+decision on the merits. To appreciate the broader context 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+871 
+Kavanaugh, J., concurring 
+surrounding today's decision, it is important to understand 
+this Court's role in preliminary litigation of this sort. 
+The basic scenario in these kinds of applications to this 
+Court is by now familiar. Congress passes a major new 
+statute, or the Executive Branch issues a major new rule or 
+executive order. The litigation over the legality of the new 
+statute or executive action winds its way through the federal 
+courts. And that litigation may meander on for many 
+months or often years before this Court can issue a fnal 
+ruling deciding the legality of the new statute or executive 
+action. 
+In the meantime, various plaintiffs may seek preliminary 
+injunctions, sometimes in many different district courts. 
+And a government defendant against whom a preliminary 
+injunction is granted (or a plaintiff who is denied a prelimi­
+nary injunction) may seek a temporary stay or injunction in 
+the court of appeals and then in this Court. 
+That preliminary-injunction litigation—which typically 
+takes place at a rapid-fre pace long before the merits litiga­
+tion culminates several years down the road—raises a ques­
+tion: What should the interim legal status of the signifcant 
+new federal statute or executive action at issue be during 
+the several-year period before this Court's fnal ruling on 
+the merits? 
+That interim-status question is itself immensely impor­
+tant. The issue of whether a major new federal statute or 
+executive action “is enforceable during the several years 
+while the parties wait for a fnal merits ruling . . . raises a 
+separate question of extraordinary signifcance to the parties 
+and the American people.” Labrador v. Poe, 601 U. S. 
+1110, 1121 (2024) (Kavanaugh, J., concurring in grant of 
+stay). 
+The interim-status issue in turn raises two other critical 
+questions: Should there be a nationally uniform answer on 
+the question of whether a major new federal statute or exec­
+utive action can be legally enforced in the often years-long 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+872 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+interim period until this Court reaches a fnal decision on 
+the merits? If so, who decides what the nationally uniform 
+interim answer is? 
+First, in my view, there often (perhaps not always, but 
+often) should be a nationally uniform answer on whether a 
+major new federal statute, rule, or executive order can be 
+enforced throughout the United States during the several-
+year interim period until its legality is fnally decided on 
+the merits. 
+Consider just a few of the major executive actions that 
+have been the subject of intense preliminary-injunction or 
+other pre-enforcement litigation in the past 10 years or so, 
+under Presidents of both political parties. They range from 
+travel bans to birthright citizenship, from the Clean Power 
+Plan to student loan forgiveness, from the OSHA vaccine 
+mandate to the service of transgender individuals in the mili­
+tary, from Title IX regulations to abortion drugs. And the 
+list goes on. Those executive actions often are highly sig­
+nifcant and have widespread effects on many individuals, 
+businesses, governments, and other organizations through­
+out the United States. 
+Often, it is not especially workable or sustainable or desir­
+able to have a patchwork scheme, potentially for several 
+years, in which a major new federal statute or executive ac­
+tion of that kind applies to some people or organizations in 
+certain States or regions, but not to others. The national 
+reach of many businesses and government programs, as well 
+as the regular movement of the American people into and 
+out of different States and regions, would make it diffcult to 
+sensibly maintain such a scattershot system of federal law. 
+Second, if one agrees that the years-long interim status of 
+a highly signifcant new federal statute or executive action 
+should often be uniform throughout the United States, who 
+decides what the interim status is? 
+The answer typically will be this Court, as has been the 
+case both traditionally and recently. This Court's actions 
+
+Cite as: 606 U. S. 831 (2025) 
+873 
+Kavanaugh, J., concurring 
+in resolving applications for interim relief help provide clar­
+ity and uniformity as to the interim legal status of major 
+new federal statutes, rules, and executive orders. In par­
+ticular, the Court's disposition of applications for interim re­
+lief often will effectively settle, de jure or de facto, the in­
+terim legal status of those statutes or executive actions 
+nationwide. 
+The decision today will not alter this Court's traditional 
+role in those matters. Going forward, in the wake of a 
+major new federal statute or executive action, different dis­
+trict courts may enter a slew of preliminary rulings on the 
+legality of that statute or executive action. Or alterna­
+tively, perhaps a district court (or courts) will grant or deny 
+the functional equivalent of a universal injunction—for ex­
+ample, by granting or denying a preliminary injunction to a 
+putative nationwide class under Rule 23(b)(2), or by prelimi­
+narily setting aside or declining to set aside an agency rule 
+under the APA. 
+No matter how the preliminary-injunction litigation on 
+those kinds of signifcant matters transpires in the district 
+courts, the courts of appeals in turn will undoubtedly be 
+called upon to promptly grant or deny temporary stays or 
+temporary injunctions in many cases. 
+And regardless of whether the district courts have issued 
+a series of individual preliminary rulings, or instead have 
+issued one or more broader classwide or set-aside prelimi­
+nary rulings, the losing parties in the courts of appeals will 
+regularly come to this Court in matters involving major new 
+federal statutes and executive actions.2 
+If there is no classwide or set-aside relief in those kinds of 
+nationally signifcant matters, then one would expect a food 
+of decisions from lower courts, after which the losing parties 
+on both sides will probably inundate this Court with applica­
+2 By statute, some litigation may start in a court of appeals or three-
+judge district court and then come directly to this Court. 
+Page Proof Pending Publication
+
+874 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+tions for stays or injunctions.3 
+And in cases where class-
+wide or set-aside relief has been awarded, the losing side in 
+the lower courts will likewise regularly come to this Court 
+if the matter is suffciently important. 
+When a stay or injunction application arrives here, this 
+Court should not and cannot hide in the tall grass. When 
+we receive such an application, we must grant or deny.4 
+And when we do—that is, when this Court makes a decision 
+on the interim legal status of a major new federal statute or 
+executive action—that decision will often constitute a form 
+of precedent (de jure or de facto) that provides guidance 
+throughout the United States during the years-long interim 
+period until a fnal decision on the merits. 
+3 That scenario explains why it would not make much sense for this 
+Court to apply different standards to (i) an application for an injunction 
+and (ii) an application for a stay of an injunction. See, e. g., Tandon v. 
+Newsom, 593 U. S. 61, 64 (2021) (per curiam) (applying the usual stay 
+standard to an application for an injunction). 
+Suppose a district court in Circuit A enjoins a new executive action. 
+And the court of appeals in Circuit A then declines to stay the injunction. 
+Meanwhile, a district court in Circuit B does not enjoin that new executive 
+action, and the court of appeals in Circuit B also declines to enjoin it. 
+Both cases come to this Court on applications for interim relief—one seek­
+ing a stay of injunction and one seeking an injunction. It would not be 
+particularly rational to deny a stay and leave the injunction in place in 
+Circuit A, and then to turn around and deny an injunction in Circuit B on 
+account of a purportedly higher standard for this Court to grant injunc­
+tions rather than stays. The standards should mesh so that this Court 
+can ensure uniformity without regard to the happenstance of how various 
+courts of appeals and district courts ruled. 
+4 To obtain an interim stay or injunction, “an applicant must show (1) a 
+reasonable probability that four Justices will consider the issue suffciently 
+meritorious to grant certiorari; (2) a fair prospect that a majority of the 
+Court will vote to reverse the judgment below; and (3) a likelihood that 
+irreparable harm will result from the denial” of the application. Hollings­
+worth v. Perry, 558 U. S. 183, 190 (2010) (per curiam); see Tandon, 593 
+U. S., at 64. The Court may also consider (4) the “balance” of “the equi­
+ties” and “relative harms” to the parties. Hollingsworth, 558 U. S., at 
+190. 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+875 
+Kavanaugh, J., concurring 
+II 
+It is sometimes suggested, however, that this Court should 
+adopt a policy of presumptively denying applications for 
+stays or injunctions—even applications involving signifcant 
+new federal statutes or executive actions—regardless of 
+which way the various lower courts have ruled. That sug­
+gestion is fawed, in my view, because it would often leave an 
+unworkable or intolerable patchwork of federal law in place. 
+And even in cases where there is no patchwork—for exam­
+ple, because an application comes to us with a single nation­
+wide class-action injunction—what if this Court thinks the 
+lower court's decision is wrong? On student loan forgive­
+ness or the Clean Power Plan or mifepristone or the travel 
+bans, for example? Should we have a rule of presumptively 
+denying relief, thereby allowing erroneous injunctions (or er­
+roneous denials of injunctions) of major new statutes and 
+executive actions to remain in place for several years, and 
+thus severely harming the Government and would-be bene­
+fciaries of (or regulated parties under) those new statutes 
+and executive actions? I think not. And this Court's ac­
+tions over the years refect that the Court thinks not. 
+Unless and until this Court grants or denies an application 
+for stay or injunction, tremendous uncertainty may surround 
+the interim legal status of the new federal statute or execu­
+tive action throughout the country. The statute or execu­
+tive action may be in effect in some places but not others, 
+for some businesses but not others, for some Americans but 
+not others. That temporary geographic, organizational, and 
+individual variation in federal law might not warrant this 
+Court's intervention in run-of-the-mill cases—which is why 
+it makes sense that this Court denies applications for interim 
+relief when the Court is unlikely to later grant certiorari. 
+See Does 1–3 v. Mills, 595 U. S. 1029 (2021) (Barrett, J., 
+concurring in denial of application for injunctive relief). 
+But in cases involving major new federal statutes or execu­
+tive actions, uniformity is often essential or at least sensible 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+876 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+and prudent. In those kinds of cases, disuniformity—even 
+if only for a few years or less—can be chaotic. And such 
+chaos is not good for the law or the country. 
+One of this Court's roles, in justiciable cases, is to resolve 
+major legal questions of national importance and ensure uni­
+formity of federal law. So a default policy of off-loading to 
+lower courts the fnal word on whether to green-light or 
+block major new federal statutes and executive actions for 
+the several-year interim until a fnal ruling on the merits 
+would seem to amount to an abdication of this Court's 
+proper role. 
+Some might object that this Court is not well equipped to 
+make those signifcant decisions—namely, decisions about 
+the interim status of a major new federal statute or execu­
+tive action—on an expedited basis. But district courts and 
+courts of appeals are likewise not perfectly equipped to make 
+expedited preliminary judgments on important matters of 
+this kind. Yet they have to do so, and so do we. By law, 
+federal courts are open and can receive and review applica­
+tions for relief 24/7/365. See 28 U. S. C. § 452 (“All courts of 
+the United States shall be deemed always open for the pur­
+pose of fling proper papers . . . and making motions and 
+orders”). And this Court has procedural tools that can help 
+us make the best possible interim decision in the limited time 
+available—administrative stays, additional briefng, amicus 
+briefs, oral argument, certiorari before judgment, and the 
+like. On top of that, this Court has nine Justices, each of 
+whom can (and does) consult and deliberate with the other 
+eight to help the Court determine the best answer, unlike a 
+smaller three-judge court of appeals panel or one-judge dis­
+trict court. And this Court also will have the beneft of the 
+prior decisions in the case at hand from the court of appeals 
+and the district court. 
+Some might argue that preliminary disputes over the le­
+gality of major new statutes and executive actions can draw 
+this Court into diffcult or controversial matters earlier than 
+
+Cite as: 606 U. S. 831 (2025) 
+877 
+Kavanaugh, J., concurring 
+we might like, as distinct from what happens on our slower-
+moving merits docket. That is an understandable concern. 
+But when it comes to the interim status of major new federal 
+statutes and executive actions, it is often important for rea­
+sons of clarity, stability, and uniformity that this Court be 
+the decider. And Members of the Court have life tenure so 
+that we can make tough calls without fear or favor. As with 
+the merits docket, the Court's role in resolving applications 
+for interim relief is to neutrally referee each matter based 
+on the relevant legal standard. Avoiding controversial or 
+diffcult decisions on those applications is neither feasible 
+nor appropriate. 
+Some might also worry that an early or rushed decision on 
+an application could “lock in” the Court's assessment of the 
+merits and subtly deter the Court from later making a differ­
+ent fnal decision. But in deciding applications for interim 
+relief involving major new statutes or executive actions, we 
+often have no choice but to make a preliminary assessment 
+of likelihood of success on the merits; after all, in cases of 
+that sort, the other relevant factors (irreparable harm and 
+the equities) are often very weighty on both sides. See Lab­
+rador v. Poe, 601 U. S. 1110, 1122 (2024) (Kavanaugh, J., 
+concurring in grant of stay). Moreover, judges strive to 
+make the correct decision based on current information not­
+withstanding any previous assessment of the merits earlier 
+in the litigation. It is not uncommon to think and decide 
+differently when one knows more. This Court has done so 
+in the past, see West Virginia Bd. of Ed. v. Barnette, 319 
+U. S. 624 (1943), and undoubtedly will continue to do so in 
+the future. 
+To reiterate, this Court should not insert itself into run-
+of-the-mill preliminary-injunction cases where we are not 
+likely to grant certiorari down the road. But determining 
+the nationally uniform interim legal status for several years 
+of, say, the Clean Power Plan or Title IX regulations or mife­
+pristone rules is a role that the American people appropri­
+Page Proof Pending Publication
+
+878 
+TRUMP v. CASA, INC. 
+Kavanaugh, J., concurring 
+ately expect this Court—and not only the courts of appeals 
+or district courts—to fulfll. 
+*
+*
+* 
+The volume of preliminary-injunction and other pre­
+enforcement litigation over new federal laws and executive 
+actions coming to this Court has been growing in recent years. 
+That trend is in part the result of the increasing number of 
+major new executive actions by recent Presidential adminis­
+trations (of both political parties) that have had diffculty 
+passing signifcant new legislation through Congress. 
+Meanwhile, applications for stays or injunctions in capital-
+punishment cases, election disputes, and other time-sensitive 
+matters (including numerous COVID–19-related disputes in 
+the few years beginning in 2020) have also continued to come 
+to this Court on a steady basis, as they traditionally have. 
+Although the volume of applications has increased, the 
+Court's responsibility for deciding consequential applications 
+for stays or injunctions is not new. See, e. g., West Virginia 
+v. EPA, 577 U. S. 1126 (2016) (temporarily enjoining Clean 
+Power Plan); Purcell v. Gonzalez, 549 U. S. 1 (2006) (per cu­
+riam) (vacating injunction pending appeal regarding state 
+voter ID law); Rubin v. United States, 524 U. S. 1301 (1998) 
+(Rehnquist, C. J., in chambers) (denying stay pending certio­
+rari of order enforcing subpoenas to Secret Service agents 
+regarding their observations of the President); Schlesinger 
+v. Holtzman, 414 U. S. 1321 (1973) (Marshall, J., in chambers) 
+(staying District Court's injunction that had ordered a halt 
+to bombing in Cambodia); Youngstown Sheet & Tube Co. v. 
+Sawyer, 343 U. S. 579, 584, 589 (1952) (after expedited oral 
+argument, affrming District Court's preliminary injunction 
+that proscribed seizure of steel mills by government); cf. Ro­
+senberg v. United States, 346 U. S. 273, 283–285 (1953) (vacat­
+ing stay of execution of the Rosenbergs). 
+Today's decision on district court injunctions will not af­
+fect this Court's vitally important responsibility to resolve 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+879 
+Sotomayor, J., dissenting 
+applications for stays or injunctions with respect to major 
+new federal statutes and executive actions. Deciding those 
+applications is not a distraction from our job. It is a critical 
+part of our job. With that understanding, I join the Court's 
+opinion in full. 
+Justice Sotomayor, with whom Justice Kagan and 
+Justice Jackson join, dissenting. 
+Children born in the United States and subject to its laws 
+are United States citizens. That has been the legal rule 
+since the founding, and it was the English rule well before 
+then. This Court once attempted to repudiate it, holding in 
+Dred Scott v. Sandford, 19 How. 393 (1857), that the children 
+of enslaved black Americans were not citizens. To remedy 
+that grievous error, Congress passed in 1866 and the States 
+ratifed in 1868 the Fourteenth Amendment's Citizenship 
+Clause, which enshrined birthright citizenship in the Consti­
+tution. There it has remained, accepted and respected by 
+Congress, by the Executive, and by this Court. Until today. 
+It is now the President who attempts, in an Executive 
+Order (Order or Citizenship Order), to repudiate birthright 
+citizenship. Every court to evaluate the Order has deemed 
+it patently unconstitutional and, for that reason, has enjoined 
+the Federal Government from enforcing it. Undeterred, the 
+Government now asks this Court to grant emergency relief, 
+insisting it will suffer irreparable harm unless it can deprive 
+at least some children born in the United States of citizen­
+ship. See Protecting the Meaning and Value of American 
+Citizenship, Exec. Order No. 14160, 90 Fed. Reg. 8449 (2025). 
+The Government does not ask for complete stays of the 
+injunctions, as it ordinarily does before this Court. Why? 
+The answer is obvious: To get such relief, the Government 
+would have to show that the Order is likely constitutional, 
+an impossible task in light of the Constitution's text, history, 
+this Court's precedents, federal law, and Executive Branch 
+practice. So the Government instead tries its hand at a dif­
+Page Proof Pending Publication
+
+880 
+TRUMP v. CASA, INC. 
+Sotomayor, J., dissenting 
+ferent game. It asks this Court to hold that, no matter how 
+illegal a law or policy, courts can never simply tell the Execu­
+tive to stop enforcing it against anyone. Instead, the Gov­
+ernment says, it should be able to apply the Citizenship 
+Order (whose legality it does not defend) to everyone except 
+the plaintiffs who fled this lawsuit. 
+The gamesmanship in this request is apparent and the 
+Government makes no attempt to hide it. Yet, shamefully, 
+this Court plays along. A majority of this Court decides 
+that these applications, of all cases, provide the appropriate 
+occasion to resolve the question of universal injunctions and 
+end the centuries-old practice once and for all. In its rush 
+to do so the Court disregards basic principles of equity as 
+well as the long history of injunctive relief granted to 
+nonparties. 
+No right is safe in the new legal regime the Court creates. 
+Today, the threat is to birthright citizenship. Tomorrow, a 
+different administration may try to seize frearms from law-
+abiding citizens or prevent people of certain faiths from gath­
+ering to worship. The majority holds that, absent cumber­
+some class-action litigation, courts cannot completely enjoin 
+even such plainly unlawful policies unless doing so is neces­
+sary to afford the formal parties complete relief. That hold­
+ing renders constitutional guarantees meaningful in name 
+only for any individuals who are not parties to a lawsuit. 
+Because I will not be complicit in so grave an attack on our 
+system of law, I dissent. 
+I 
+The majority ignores entirely whether the President's Ex­
+ecutive Order is constitutional, instead focusing only on the 
+question whether federal courts have the equitable authority 
+to issue universal injunctions. Yet the Order's patent un­
+lawfulness reveals the gravity of the majority's error and 
+underscores why equity supports universal injunctions as ap­
+propriate remedies in this kind of case. As every conceiv­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+881 
+Sotomayor, J., dissenting 
+able source of law confrms, birthright citizenship is the law 
+of the land. 
+A 
+The Citizenship Clause provides that “[a]ll persons born or 
+naturalized in the United States and subject to the jurisdic­
+tion thereof, are citizens of the United States and of the 
+State wherein they reside.” U. S. Const., Amdt. 14, § 1. 
+That means what it says. 
+Nestled in the Fourteenth 
+Amendment alongside the Equal Protection Clause, the Citi­
+zenship Clause does not discriminate on the basis of race, 
+sex, ethnicity, religion, or, importantly here, parentage. It 
+refers instead to “[a]ll persons born or naturalized in the 
+United States.” Ibid. 
+Besides birth, there is only one condition: that one be “sub­
+ject to the jurisdiction” of the United States. Yet that con­
+dition too leaves no room for ambiguity. To be “subject to 
+the jurisdiction” of the United States means simply to be 
+bound to its authority and its laws. See 1 N. Webster, An 
+American Dictionary of the English Language 732 (C. Good­
+rich & N. Porter eds. 1865) (defning jurisdiction as the 
+“[p]ower of governing or legislating,” or “the power or right 
+of exercising authority”). As the Government would pre­
+sumably concede, virtually everyone born in the United 
+States and present in its territory is subject to its authority 
+and its laws. After all, “[t]he jurisdiction of the nation 
+within its own territory is necessarily exclusive and abso­
+lute.” Schooner Exchange v. McFaddon, 7 Cranch 116, 136 
+(1812) (Marshall, C. J., for the Court). Once a citizen of an­
+other nation steps onto United States soil, she is (with nar­
+row exception) “amenable to the jurisdiction” of the United 
+States. Id., at 144. That is why “no plausible distinction 
+with respect to Fourteenth Amendment `jurisdiction' can be 
+drawn between resident aliens whose entry into the United 
+States was lawful, and resident aliens whose entry was un­
+lawful.” Plyler v. Doe, 457 U. S. 202, 211, n. 10 (1982). 
+Page Proof Pending Publication
+
+882 
+TRUMP v. CASA, INC. 
+Sotomayor, J., dissenting 
+Few constitutional questions can be answered by resort 
+to the text of the Constitution alone, but this is one. The 
+Fourteenth Amendment guarantees birthright citizenship. 
+B 
+Unsurprisingly given the clarity of the Citizenship 
+Clause's text, every other source of interpretation confrms 
+this conclusion. Consider, frst, its history. Long before 
+the Fourteenth Amendment, and indeed before the founding, 
+the common-law rule of jus soli (literally, right of the soil) 
+governed English citizenship. That rule rendered a per-
+son's birthplace determinative of her citizenship status. 
+Thus, “[t]he children of aliens, born . . . in England,” gener­
+ally were “natural-born subjects, and entitled to all the privi­
+leges of such.” 1 W. Blackstone, Commentaries on the Laws 
+of England 361–362 (1765); see also H. Broom & G. Denman, 
+Constitutional Law Viewed in Relation to Common Law 31 
+(2d ed. 1885) (describing Calvin's Case (1608), which estab­
+lished that “[e]very one born within the dominions of the 
+King of England . . . is . . . entitled to enjoy all the rights 
+and liberties of an Englishman”). 
+That English common-law rule carried over to the United 
+States after the founding. Shortly after the Constitution's 
+ratifcation, James Madison observed that “it [was] an estab­
+lished maxim that birth is a criterion of allegiance,” i. e., of 
+citizenship. 1 Annals of Cong. 404 (1789). Birth, he ex­
+plained, could convey citizenship in two ways: either through 
+“place” (under the “right of the soil” principle) or through 
+“parentage” (as for one born to United States citizens). 
+Ibid. “[B]ut, in general,” Madison explained, “place is the 
+most certain criterion” and “it is what applies in the United 
+States.” Ibid. Mere decades later, Justice Story wrote 
+that “[n]othing is better settled . . . than the doctrine that 
+the children even of aliens born in a country . . . are subjects 
+by birth.” Inglis v. Trustees of Sailor's Snug Harbour in 
+City of New York, 3 Pet. 99, 164 (1830). Well before the 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+883 
+Sotomayor, J., dissenting 
+Fourteenth Amendment, then, it was the undisputed “law of 
+the United States [that] every person born within the domin­
+ions and allegiance of the United States, whatever were the 
+situation of his parents, is a natural born citizen.” Lynch v. 
+Clarke, 1 Sand. Ch. 583, 663 (N. Y. Ch. 1844). 
+Though the law was clear, the Nation did not always live 
+up to its promise. Infamously, this Court departed from the 
+birthright citizenship principle in Dred Scott, 19 How. 393, 
+holding that the children of enslaved black Americans “are 
+not included, and were not intended to be included, under 
+the word `citizens' in the Constitution.” Id., at 404. Fol­
+lowing the Civil War, the Reconstruction Congress corrected 
+that grave error. Section 1 of the Civil Rights Act of 1866, 
+14 Stat. 27, declared that “all persons born in the United 
+States and not subject to any foreign power” would be “citi­
+zens of the United States.” The Fourteenth Amendment's 
+guarantee of birthright citizenship followed two years later. 
+The lawmakers who ratifed the Fourteenth Amendment 
+understood that it would extend citizenship to all children 
+born here, regardless of parental citizenship. Indeed, some 
+objected to its passage on those grounds, complaining that 
+it would permanently extend citizenship to immigrants who 
+“invade [state] borders” and “settle as trespassers.” Cong. 
+Globe, 39th Cong., 1st Sess., 2891 (1866). Proponents 
+agreed, if not with the anti-immigrant sentiment, that the 
+Clause would extend citizenship to the children of immi­
+grants. For example, Senator Conness of California (one of 
+the Amendment's lead supporters) confrmed on the foor 
+“that the children born here of Mongolian parents shall be 
+declared by the Constitution of the United States to be enti­
+tled to civil rights and to equal protection before the law.” 
+Id., at 2892. “We have declared that by law” in the Civil 
+Rights Act, he explained, and “now it is proposed to incorpo­
+rate the same provision in the fundamental instrument of the 
+nation.” Id., at 2891. Not one Senator disagreed with this 
+understanding of the Clause. 
+Page Proof Pending Publication
+
+884 
+TRUMP v. CASA, INC. 
+Sotomayor, J., dissenting 
+In the end, “[t]he Citizenship Clause was no legal innova­
+tion.” J. Ho, Defning “American”: Birthright Citizenship 
+and the Original Understanding of the 14th Amendment, 9 
+Green Bag 2d 367, 369 (2006); see also id., at 368 (“Birthright 
+citizenship is guaranteed by the Fourteenth Amendment. 
+That birthright is protected no less for children of undocu­
+mented persons than for descendants of Mayfower passen­
+gers”). “It simply restored the longstanding English com­
+mon law doctrine of jus soli” abrogated by Dred Scott. Ho, 
+9 Green Bag 2d, at 369; see also M. Ramsey, Originalism and 
+Birthright Citizenship, 109 Geo. L. J. 405, 472 (2020) (The 
+“central purpose” of the Citizenship Clause “was, of course, 
+to overrule Dred Scott”). 
+C 
+Following the ratifcation of the Fourteenth Amendment, 
+this Court confrmed the Amendment's plain meaning in 
+United States v. Wong Kim Ark, 169 U. S. 649 (1898). At 
+issue was the citizenship of Wong Kim Ark, a young Califor­
+nia resident born in San Francisco to Chinese immigrant par­
+ents. Id., at 652. When Wong returned to California from 
+a trip to China, a custom's collector denied him entry on the 
+sole ground that he was not a citizen of the United States. 
+Id., at 653. 
+This Court held that “[t]he Fourteenth Amendment af­
+frms the ancient and fundamental rule of citizenship by birth 
+within the territory.” Id., at 693. As the President does 
+today, the Government in Wong Kim Ark rested its case on 
+the Clause's sole qualifer. Wong was not subject to the ju­
+risdiction of the United States, the Government claimed, be­
+cause at birth his parents were aliens in the United States 
+who were “subjects of the emperor of China,” thus making 
+Wong a subject of the emperor of China as well. Id., at 652– 
+653. This Court squarely rejected that attempt to limit the 
+Citizenship Clause's reach. Instead, it held, the “ `subject to 
+the jurisdiction' ” qualifer excludes only “children born of 
+alien enemies in hostile occupation, and children of diplo­
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+885 
+Sotomayor, J., dissenting 
+matic representatives of a foreign State,” id., at 682, “with 
+the single additional exception of children of members of the 
+Indian tribes owing direct allegiance to their several tribes,” 
+id., at 693.1 
+That holding conclusively settled any remaining dispute 
+over the Citizenship Clause's meaning. Since then, all three 
+branches of Government have unfinchingly adhered to it. 
+This Court, for one, has repeatedly reaffrmed Wong Kim 
+Ark's holding. Notwithstanding legislation purporting to 
+render Japanese persons “ineligible” for citizenship, we held 
+in Morrison v. California, 291 U. S. 82 (1934), that a child 
+with Japanese parents “is a citizen of the United States if he 
+was born within the United States.” Id., at 85. The Court 
+recognized the same rule even during World War II, when 
+individuals of Japanese ancestry were subject to curfew and 
+exclusion orders. See Hirabayashi v. United States, 320 
+U. S. 81, 96–97 (1943). So too has the Court recognized that 
+the child of parents unlawfully present in the United States 
+“is, of course, an American citizen by birth.” United States 
+ex rel. Hintopoulos v. Shaughnessy, 353 U. S. 72, 73 (1957). 
+The same is true of children whose parents gained admission 
+into the United States by unlawful means. See, e. g., INS v. 
+1 The frst two exceptions “ha[d] already been shown, by the law of Eng­
+land, and by our own law, from the time of the frst settlement of the 
+English colonies in America, [to be] recognized exceptions to the funda­
+mental rule of citizenship by birth within the country.” Wong Kim Ark, 
+169 U. S., at 682. The additional exception for certain children born to 
+Indian tribe members refected the country's historical understanding that 
+Indian tribes were “quasi foreign nations” within the physical boundaries 
+of the United States. See Cong. Globe, 39th Cong., 1st Sess., 2890 (1866). 
+Treaties between many tribes and the Federal Government, at the time, 
+ensured that it was the tribe, and not the United States Government, that 
+had “prescriptive and law enforcement authority” over tribal members. 
+M. Ramsey, Originalism and Birthright Citizenship, 109 Geo. L. J. 405, 
+443–444 (2020); see id., at 442–444. Congress eventually extended birth­
+right citizenship to tribal members born in the United States in 1924. 
+See Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253, 8 U. S. C. § 1401(b). 
+These exceptions are not at issue in these cases. 
+Page Proof Pending Publication
+
+886 
+TRUMP v. CASA, INC. 
+Sotomayor, J., dissenting 
+Errico, 385 U. S. 214, 215–216 (1966); INS v. Rios-Pineda, 
+471 U. S. 444, 446 (1985). 
+Congress, for its part, has also reaffrmed the principles of 
+birthright citizenship by enshrining it in a federal statute. 
+Section 201 of the Nationality Act of 1940 provides that all 
+those “born in the United States, and subject to the jurisdic­
+tion thereof,” “shall be nationals and citizens of the United 
+States at birth.” 8 U. S. C. § 1401(a); see also Taggart v. Lor­
+enzen, 587 U. S. 554, 560 (2019) (recognizing “longstanding 
+interpretive principle” that if statutory term “is ` “obviously 
+transplanted from another legal source,” ' it ` “brings the old 
+soil with it” ' ”). 
+For at least the last century, the Executive Branch has 
+adhered to the same principle. When Congress proposed to 
+reaffrm birthright citizenship in the 1940 Nationality Act, 
+cabinet offcials described it as “a statement of the common-
+law rule, which has been in effect in the United States from 
+the beginning of its existence.” House Committee on Immi­
+gration and Naturalization, Nationality Laws of the United 
+States, 76th Cong., 1st Sess., 7 (Comm. Print 1939). Indeed, 
+the Government concedes even now that the Executive 
+Branch has recognized the vitality of birthright citizenship 
+“at least back to World War II, if not earlier.” App. to Op­
+position to Application in No. 24A886, p. 323a. That ex­
+plains, among other things, why the Social Security Adminis­
+tration and the Department of State have long accepted 
+proof of one's birthplace as proof of citizenship. See 44 Fed. 
+Reg. 10369, 10371 (1979); 20 CFR §§ 422.107(d), 422.103(c)(2) 
+(2024); 22 CFR §§ 51.40, 51.42 (2024). 
+Some decades ago, the Offce of Legal Counsel was asked 
+to respond to a House bill that would have denied birthright 
+citizenship to “ `children born in the United States to parents 
+who are not citizens or permanent resident aliens.' ” 19 Op. 
+OLC 340, 341 (1995). The answer well summed up the state 
+of the law: This “offce grapples with many diffcult and close 
+issues of constitutional law. The lawfulness of this bill is not 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+887 
+Sotomayor, J., dissenting 
+among them. This legislation is unquestionably unconstitu­
+tional.” Ibid. 
+II 
+A 
+Undeterred by the Constitution, history, Supreme Court 
+precedent, federal law, and longstanding Executive Branch 
+practice, President Donald J. Trump issued Executive Order 
+No. 14160 on the day of his inauguration that purported to 
+redefne American citizenship. The Order declares that 
+United States citizenship does not extend to persons who are 
+born to a mother unlawfully present in the United States, or 
+lawfully present on a temporary basis, and a father who is 
+neither a citizen nor lawful permanent resident. Ibid. It 
+further prohibits federal agencies from issuing citizenship 
+documentation to such persons or accepting state documen­
+tation to that effect, and it directs a slew of federal offcials 
+to conform agency regulations to the Order. Id., at 8449– 
+8450. The prohibition, according to the Order, applies “only 
+to persons who are born within the United States after 30 
+days from the date of th[e] order.” Id., at 8449. 
+B 
+Shortly after the President issued the Citizenship Order, 
+several groups of plaintiffs (together, respondents) chal­
+lenged the Order in Federal District Courts in Maryland, 
+Massachusetts, and Washington. Respondents include: a 
+group of pregnant women2 whose children will not be United 
+States citizens under the terms of the Citizenship Order; two 
+immigrants-rights organizations with thousands of members 
+across the country who are likely to give birth to children 
+2 Two of these women seek to represent a class of pregnant women and 
+children residing in Washington State, who are affected by the Citizenship 
+Order. See Complaint in No. 2:25–cv–00127 (WD Wash., Feb. 4, 2025), 
+ECF Doc. 106. The District Court has yet to rule on the certifcation of 
+that putative class. 
+Page Proof Pending Publication
+
+888 
+TRUMP v. CASA, INC. 
+Sotomayor, J., dissenting 
+who would also be denied citizenship under the Order; and 
+22 States, the District of Columbia, and the city of San Fran­
+cisco. In their respective suits, respondents asserted that 
+the Citizenship Order violates the Fourteenth Amendment 
+and § 1401(a). 
+Respondents also sought a preliminary injunction barring 
+enforcement of the Citizenship Order during the pendency 
+of the litigation. If allowed to go into effect, they said, the 
+policy would infict irreparable harm on their children (and 
+their members' children) by denying them “enjoyment of the 
+full privileges, rights, and benefts that come with U. S. citi­
+zenship,” and rendering them vulnerable to unlawful depor­
+tation before the Courts could adjudicate their constitutional 
+claim. Complaint in No. 8:25–cv–00201 (D Md., Jan. 21, 
+2025), p. 6, ¶12; see also Complaint in No. 2:25–cv–00127 (WD 
+Wash., Feb. 4, 2025), ECF Doc. 106, pp. 33–36, ¶¶120–139 
+(Washington Complaint). 
+As for the States, they attested that enforcement of the 
+Citizenship Order would cost them millions of dollars in fed­
+eral funding and impose signifcant administrative burdens. 
+The States “administer numerous programs for the beneft 
+of their residents, including for newborns and young chil­
+dren, some of whom are wards of the Plaintiff States who are 
+entitled to care by statute.” Id., at 23, ¶79. Those social 
+welfare programs include ones provided for by state law, as 
+well as ones established by federal law, such as Medicaid and 
+the Children's Health Insurance Program: Several of them 
+“are funded in part by federal dollars, with federal funding 
+frequently tied to the citizenship and immigration status of 
+the individuals served.” Ibid. By stripping some children 
+within the States of their citizenship, the Order would re­
+duce the States' federal funding, “forc[ing the States] to bear 
+signifcantly increased costs to operate and fund programs 
+that ensure the health and well-being of their residents.” 
+Id., at 6, ¶8, 4–5, ¶6; see also Opposition to Application in 
+No. 24A886 (New Jersey), pp. 9–11; Complaint in No. 1:25– 
+Page Proof Pending Publication
+
+Cite as: 606 U. S. 831 (2025) 
+889 
+Sotomayor, J., dissenting 
+cv–10139 (D Mass., Jan. 21, 2025), pp. 23–42, ¶¶121–201. 
+Relatedly, because the States must verify the citizenship sta­
+tus of the individuals they serve, the States alleged that the 
+Citizenship Order would force them to expend signifcant 
+sums to “modif[y] their . . . operational structures and admin­
+istration” to account for the changes in citizenship. Wash­
+ington Complaint 6, ¶8; see also Opposition to Application in 
+No. 24A886 (New Jersey), at 9–11. 
+All three District Courts preliminarily enjoined enforce­
+ment of the Citizenship Order. Each court determined that 
+the Citizenship Order was likely unlawful, that respondents 
+were likely to face irreparable harm without an injunction, 
+and that the equities and public interest cut decisively in 
+respondents' favor. See 763 F. Supp. 3d 723, 727, 744–745 
+(Md. 2025); 765 F. Supp. 3d 1142, 1152–1153 (WD Wash. 2025); 
+Doe v. Trump, 766 F. Supp. 3d 266, 274, 285–287 (Mass. 2025). 
+The District Courts further determined that only injunc­
+tions blocking the Citizenship Order's enforcement nation­
+wide would completely redress respondents' injuries. For 
+the organizational plaintiffs, the Maryland District Court ex­
+plained that those plaintiffs have “ `over 680,000 members . . . 
+who reside in all 50 U. S. states' ” and “hundreds of them 
+expect to give birth soon.” 763 F. Supp. 3d, at 746. The 
+Washington District Court found that “a geographically lim­
+ited injunction would be ineffective” for the state plaintiffs 
+“as it would not completely relieve [the States] of the Order's 
+fnancial burden(s).” 765 F. Supp. 3d, at 1153. For one 
+thing, that court explained, the constant fow of people mov­
+ing in and out of various States meant some children born 
+to noncitizen parents in a nonplaintiff State would later re­
+side in a plaintiff State. Once there, those children (under 
+state law) would be eligible for state benefts. Yet due to 
+the Citizenship Order, the plaintiff States would no longer 
+receive federal funding to support those benefts. In addi­
+tion, the plaintiff States would have to create an entirely 
+new administrative and recordkeeping system to accommo­
+Page Proof Pending Publication
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+_________________ 
+_________________ 
+1 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+No. 24A1203 
+LINDA MCMAHON, SECRETARY OF EDUCATION, 
+ET AL. v. NEW YORK, ET AL. 
+ON APPLICATION FOR STAY 
+[July 14, 2025] 
+The application for stay presented to JUSTICE JACKSON 
+and by her referred to the Court is granted. The May 22,
+2025 preliminary injunction entered by the United States
+District Court for the District of Massachusetts, case 
+No. 1:25–cv–10601, is stayed pending the disposition of the
+appeal in the United States Court of Appeals for the First
+Circuit and disposition of a petition for a writ of certiorari, 
+if such a writ is timely sought. Should certiorari be denied, 
+this stay shall terminate automatically.  In the event certi­
+orari is granted, the stay shall terminate upon the sending 
+down of the judgment of this Court. 
+JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 
+JUSTICE JACKSON join, dissenting. 
+This case arises out of the President’s unilateral efforts 
+to eliminate a Cabinet-level agency established by Congress
+nearly half a century ago: the Department of Education.  As 
+Congress mandated, the Department plays a vital role in
+this Nation’s education system, safeguarding equal access 
+to learning and channeling billions of dollars to schools and 
+students across the country each year. 
+Only Congress has the power to abolish the Department.
+The Executive’s task, by contrast, is to “take Care that the
+Laws be faithfully executed.”  U. S. Const., Art. II, §3.  Yet, 
+by executive fiat, the President ordered the Secretary of Ed­
+ucation to “take all necessary steps to facilitate the closure 
+
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+2 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+of the Department.”  Exec. Order No. 14242, 90 Fed. Reg. 
+13679 (2025). Consistent with that Executive Order, Sec­
+retary Linda McMahon gutted the Department’s work 
+force, firing over 50 percent of its staff overnight. In her 
+own words, that mass termination served as “the first step 
+on the road to a total shutdown” of the Department.  Dept. 
+of Ed., Press Release (Mar. 11, 2025); infra, at 7. 
+When the Executive publicly announces its intent to 
+break the law, and then executes on that promise, it is the 
+Judiciary’s duty to check that lawlessness, not expedite it. 
+Two lower courts rose to the occasion, preliminarily enjoin­
+ing the mass firings while the litigation remains ongoing. 
+Rather than maintain the status quo, however, this Court 
+now intervenes, lifting the injunction and permitting the 
+Government to proceed with dismantling the Department.
+That decision is indefensible.  It hands the Executive the 
+power to repeal statutes by firing all those necessary to
+carry them out. The majority is either willfully blind to the 
+implications of its ruling or naive, but either way the threat 
+to our Constitution’s separation of powers is grave.  Unable 
+to join in this misuse of our emergency docket, I respectfully 
+dissent. 
+I 
+A 
+Federal involvement in education is not a modern phe­
+nomenon. For over 150 years, the Federal Government has
+played a critical role in supplementing and supporting the 
+education provided by States, localities, and private insti­
+tutions. See S. Tiedt, The Role of the Federal Government 
+in Education 19–24 (1966). In 1979, Congress enacted the
+Department of Education Organization Act to “strengthen
+the Federal commitment to ensuring access to equal educa­
+tional opportunity for every individual.”  §102(1), 93 Stat. 
+670. In service of that goal, the Act integrated the Federal 
+Government’s educational programs into a new Cabinet­
+
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+3 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+level agency called the Department of Education.  §201, id., 
+at 671. 
+Congress tasked the agency with administering a broad
+range of educational programs.  For example, the Depart­
+ment runs the federal student financial-aid system, see, 
+e.g., 20 U. S. C. §1071 et seq.; §1087a et seq.; federal grants 
+for higher education institutions, see, e.g., §§1022a, 1057;
+federal work-study programs, see §1087-51 to §1087-58; 
+and federal funding for kindergarten through 12th grade, 
+see, e.g., §6301 et seq. The scale of these efforts is vast: In 
+June 2025, the Department reported awarding over $120 
+billion a year in federal student aid to over 13 million stu­
+dents.1  In 2020–2021, the Federal Government distributed 
+over $100 billion in funding directly to public schools, rep­
+resenting around 11 percent of all funding for public ele­
+mentary and secondary schools across the country.2 
+Congress has also charged the Department with ensuring 
+equal access to education.  See §3402. The Department’s 
+Office of Civil Rights, for example, enforces several antidis­
+crimination laws as to federally funded educational pro­
+grams, see §§3413, 3441(a)(3), including Title VI, 42
+U. S. C. §2000d et seq. (prohibiting discrimination on the 
+basis of race, color, and national origin); Title IX, 20 U. S. C.
+§§1681–1689 (prohibiting discrimination on the basis of 
+sex); and Title II of the Americans with Disabilities Act, 42 
+U. S. C. §§12101–12103 (prohibiting discrimination on the 
+basis of disability). The Department additionally adminis­
+ters the Individuals with Disabilities Education Act 
+(IDEA), which funds and supports special education ser­
+vices for more than 7 million students with disabilities.3 
+—————— 
+1See Dept. of Ed., Federal Student Aid (June 27, 2025), 
+https://www.ed.gov/about/ed-offices/fsa/federal-student-aid. 
+2See App. to Application for Stay of Injunction 7a (App.); National Cen­
+ter for Education Statistics, Public School Revenue Sources (May 2024), 
+https://nces.ed.gov/programs/coe/indicator/cma. 
+3See 20 U. S. C. §§3441(a)(2)(H), 1400–1482; National Association of 
+
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+4 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+Tens of millions of low-income families, too, rely on finan­
+cial assistance programs administered by the Department 
+under Title I of the Elementary and Secondary Education 
+Act.4  Put simply, schools and students in every State rely 
+on federal programs established by Congress and run by the
+Department. 
+Congress has prohibited the Secretary of Education from
+“aboli[shing] organizational entities established” in the De­
+partment’s organic statute.  20 U. S. C. §3473(a)(2).  As for 
+statutory entities “transferred to the Department,” the Sec­
+retary may only “consolidate, alter, or discontinue” a subset
+of entities specifically identified, after providing Congress 
+with 90 days’ advance notice and a “statement of the action 
+proposed . . . and the facts and circumstances relied upon in
+support of such proposed action.” 
+§§3473(b)(1)(A)–(L),
+(b)(2). 
+B 
+Administrations have taken different positions on the De­
+partment’s value and its proper role in the Nation’s system 
+of education over the years.  Presidents Carter and Clinton, 
+for instance, made investing in it a priority. See Remarks 
+at the Bill Signing Ceremony for the Department of Educa­
+tion Organization Act, Public Papers of the Presidents, 
+James E. Carter, Jr., Vol. 2, Oct. 17, 1979, pp. 1955–1956 
+(1980); R. Riley, The Role of the Federal Government in Ed­
+ucation, 17 St. Louis U. Pub. L. Rev. 29, 38–39, 43 (1997) 
+(recounting President Clinton’s initiatives). 
+President 
+Reagan, by contrast, submitted a proposal to Congress that 
+would have abolished the Department, see State of the Un­
+—————— 
+Elementary School Principals, Funding Falls Short for Students With
+Disabilities (Nov. 20, 2023), https://www.naesp.org/blog/funding-falls­
+short-for-students-with-disabilities. 
+4See 
+ESEA 
+Network, 
+About 
+Title 
+I, 
+https://www.eseanet­
+work.org/about/titlei. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+   
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+ 
+ 
+ 
+ 
+ 
+ 
+5 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+ion Address, 128 Cong. Rec. 159 (1982), though he ulti­
+mately withdrew the proposal after it garnered little sup­
+port in Congress.5  Until now, however, Presidents have rec­
+ognized they lack the unilateral authority to eradicate a 
+Department that Congress has tasked with fulfilling statu­
+tory duties.
+Undeterred by these limits on executive authority, Pres­
+ident Trump has made clear that he intends to close the 
+Department without Congress’s involvement.  During his
+campaign, Trump repeatedly asserted that he planned to 
+“‘clos[e] up the Department of Education’” and “‘sen[d] all 
+education and education work . . . back to the states’” 
+“‘early in the administration.’”6 
+Following the election,
+Trump continued that refrain: “[Y]ou can do a lot of things 
+without Congress,” he told the press, including a “virtual 
+closure of [the] Department of Education.”7  After taking of­
+fice, President Trump described the Department as a “‘big 
+con job’” and reiterated that he would “‘like to close it im­
+mediately.’”8 
+When nominating Linda McMahon to lead the Depart­
+ment, President Trump announced that he had directed 
+—————— 
+5See Associated Press, Reagan Says He Won’t Seek End to Education
+Dept. Now, N. Y. Times, Jan. 30, 1985, https://www.nytimes.com/
+1985/01/30/us/reagan-says-he-won-t-seek-end-to-education-dept-now.html. 
+6S. Mphofe, Trump calls to ‘Disband’ the Department of Education, 
+Fox5 DC (Nov. 13, 2024) (reporting on Sept. 2023 statements); see No.
+25–cv–10677, ECF Doc. 1, p. 13 (Original Complaint); see also ibid. (col­
+lecting Trump’s promises to “ ‘eliminate the federal Department of Edu­
+cation’ ” on the campaign trail). 
+72024 Person of the Year Interview With Time, Time, Dec. 12, 2024, 
+https://time.com/7201565/person-of-the-year-2024-donald-trump-tran­
+script; see Original Complaint 13. 
+8No. 25–cv–10601 (D Mass.), ECF Doc. 71–9, p. 3 (M. Bender, Trump
+Is Said to Be Preparing Order That Aims to Eliminate Education Dept.,
+N. Y. Times, March 6, 2025, https://www.nytimes/com/2025/03/06/us/
+politics/trump-education-department-executive-order.html).  All ECF ci­
+tations are to No. 25–cv–10601 (D Mass.) unless otherwise specified. 
+
+ 
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+6 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+McMahon to “‘put herself out of a job.’”9 Consistent with 
+that directive, on her first day as Secretary of the Depart­
+ment, McMahon issued a memorandum explaining that she
+would lead the Department’s “final mission” and fulfill the 
+President’s “campaign promises.”  App. to State Respond­
+ents Opposition to Application to Stay Injunction 58–59
+(State Respondents’ App.) (capitalization deleted). 
+On March 11, 2025, about a week into her tenure, 
+McMahon announced a “reduction in force” that would 
+eliminate “nearly 50% of the Department’s workforce,” 
+slashing the number of employees from 4,133 to 2,183.  Id., 
+at 64 (March 11 Directive).10  The terminations eliminated 
+whole offices and teams within the Department. To take 
+just a few examples, the Directive terminated the entire Of­
+fice of English Language Acquisition,11 which Congress
+tasked with administering the Department’s “bilingual ed­
+ucation programs,” 20 U. S. C. §3420; all employees within 
+the Office of the General Counsel that specialize in K–12 
+education funding and IDEA grants; 7 of 12 regional divi­
+sions of the Office of Civil Rights; most of the Federal Stu­
+dent Aid office responsible for certifying schools so that
+their students can receive federal financial aid; and the en­
+tire unit of the Office of Special Education and Rehabilita­
+tive Services charged with providing technical assistance
+and guidance on complying with the IDEA. Many of the
+affected offices and functions can be “consolidate[d], al­
+ter[ed], or discontinu[ed]” only by Congress. §3473(a). As 
+for the offices the Secretary could lawfully “discontinue,” 
+—————— 
+9Z. Wolf, Trump and Musk Are Moving to Smother These Three Pieces 
+of the Government, CNN, Feb. 5. 2025, https://www.cnn.com/2025/02/05/ 
+politics/donald-trump-elon-musk-agencies; see ECF Doc. 1, p. 3). 
+10Approximately 600 of these employees took buy outs offered by the 
+Department. State Respondents’ App. 65. 
+11Only the Deputy Assistant Secretary, who had previously served in 
+a leadership (i.e., nonstaff ) role, and one employee, who had already an­
+nounced her intention to retire at the end of the month, were left in place. 
+See ECF Doc. 71–60, p. 4, ¶9. 
+
+ 
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+ 
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+ 
+7 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+she failed to provide the requisite 90-day notice and report
+to Congress. §3473(b).
+The March 11 Directive offered competing explanations
+for the mass terminations. It touted the initiative as “part
+of the [Department’s] final mission.”  State Respondents’
+App. 64.  Yet it also claimed the initiative reflected a “‘com­
+mitment to efficiency’” and asserted that the Department
+would “continue to deliver on all statutory programs that 
+fall under the agency’s purview.” Ibid.  The Department 
+did not explain how terminating half of the agency’s work 
+force overnight would improve efficiency, nor how it would 
+be able to continue carrying out its statutory functions. 
+The reason for that silence soon became apparent.  In 
+statements to the press, McMahon confirmed the reduction
+in force was “the first step on the road to a total shutdown”
+of the Department, as directed by the President.12  Simi­
+larly, when asked during a congressional hearing whether 
+the Department had conducted “an actual analysis to deter­
+mine what the effects of [the reduction in force] would be”
+on the Department’s ability to carry out its statutory func­
+tions, McMahon responded, “No.” Hearing on FY 2026 
+Dept. of Ed. Budget Request before the Senate Appropria­
+tions Subcommittee on Labor, Health and Human Services, 
+Education, and Related Agencies, Subcommittee on Appro­
+priations, 199th Cong., 1st Sess., Congressional Quarterly
+Tr. 55 (June 3, 2025).
+Internal developments leading up to the mass firings re­
+flected that disregard for the Department’s statutory du­
+ties. Certain units within the Department, for instance, 
+were told to prepare a list of statutorily required tasks, but 
+the due date for those reports was March 13, 2025, two days 
+after the Department carried out the mass terminations. 
+—————— 
+12Fox News, Education Secretary Says Department Took First Steps 
+to Eliminate “Bureaucratic Bloat,” at 1:15–1:18, Mar. 11, 2025, 
+https://www.foxnews.com/video/6369901522112. 
+
+ 
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+ 
+ 
+ 
+ 
+8 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+State Respondents’ App. 237.  Terminated employees also 
+reported being immediately “locked out” of most “work sys­
+tems and documents” on March 11, 2025, making it impos­
+sible to hand off existing work to the remaining employees
+effectively. Id., at 157; see also, e.g., id., at 240; ECF Doc. 
+71–54, p. 3; ECF Doc. 71–61, p. 4.  Communications from 
+the Acting Secretary (whom McMahon had replaced), more­
+over, conveyed that “the Department as an agency was
+winding down, and would not exist moving forward,” so the
+Department “would not be responsible for meeting the stat­
+utory functions [previously] performed” by the fired em­
+ployees. ECF Doc. 124–1, p. 6. 
+On March 20, 2025, President Trump formalized his di­
+rective to shutter the Department by signing Executive Or­
+der No. 14242. 90 Fed. Reg. 13679.  The order’s operative
+section (titled “Closing the Department of Education and 
+Returning Authority to the States” (italics omitted)), di­
+rected the Secretary to “take all necessary steps to facilitate
+the closure of the Department of Education and return au­
+thority over education to the States and local communities” 
+“to the maximum extent appropriate and permitted by law.” 
+Ibid. 
+A day later, President Trump announced that the Depart­
+ment would transfer some of its statutory functions to other 
+Government agencies (March 21 Transfer Order). Specifi­
+cally, the Department would “‘immediately’” move the stu­
+dent loan portfolio to the Small Business Administration, 
+while “‘special needs’” and “‘nutrition programs’” would be 
+transferred to the Department of Health and Human Ser­
+vices.13 
+—————— 
+13App. 59a (quoting L. Cochran, Trump Says Student Loans Moving to 
+SBA, ‘Special Needs’ to HHS, The Hill, Mar. 21, 2025, https://thehill.
+com/homenews/education/5207597-trump-student-loans-sba-special­
+needs-disabled-students-hhs-mcmahon-kennedy). 
+
+ 
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+  
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+ 
+9 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+C 
+1 
+Following the March 11 Directive and the resulting mass
+termination of Department employees, a group of 20 States 
+and the District of Columbia sued the Department in fed­
+eral court. They argued that the reductions in force “effec­
+tive[ly] dismantl[ed] the Department” and “incapacitat[ed] 
+components of the Department responsible for performing
+functions mandated by statute.”  ECF Doc. 1, p. 2. Accord­
+ing to the States, that unilateral executive action violated
+the Constitution’s separation of powers, the Take Care 
+Clause, and the Administrative Procedure Act.  Later that 
+month, a group of school districts and unions filed a similar 
+suit challenging the March 11 Directive, as well as Execu­
+tive Order No. 14242 and President Trump’s March 21 
+Transfer Order.  The District Court consolidated the cases, 
+and both sets of plaintiffs sought preliminary injunctions to
+preserve the status quo while litigation remained ongoing. 
+Dozens of affidavits from Department officials and fed­
+eral funding recipients, filed in support of the plaintiffs’ pre­
+liminary injunction motions, described the mass termina­
+tion’s effects on schools and students across the Nation. 
+School districts, one such affidavit averred, depend on
+timely disbursement of federal funds to pay teachers and to
+purchase materials and equipment throughout the aca­
+demic year. Even short-term delays in funding can force
+school districts “to make cuts . . . to staff and programs, dis­
+rupting services for students and families.”  App. to Oppo­
+sition of Somerville Public Schools et al. to Application for 
+Stay 57a–58a.  Indeed, by the time they filed suit, several 
+States had already experienced delays related to federal re­
+imbursements following the March 11 Directive.  See App.
+64a. Officials at schools and universities likewise attested 
+that they rely on timely certifications from the Department
+to enroll students on federal financial aid.  As a result of 
+
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+10 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+certification delays following the reduction in force, aca­
+demic institutions have been or will be forced to turn away
+whole swaths of prospective students. 
+Scores of officials who worked at the Department also at­
+tested that the agency would no longer be able to carry out 
+many of its statutorily mandated duties following the mass 
+termination. See, e.g., ECF Doc. 71–54, p. 4 (Title II of the 
+Workforce Innovation and Opportunity Act functions); ECF 
+Doc. 71–60, p. 5 (Title III of the Elementary and Secondary 
+Education Act of 1965 functions); ECF Doc. 71–61, p. 5
+(Federal Student Aid office functions); ECF Doc. 71–64, p.
+5 (Education Sciences Reform Act functions); ECF Doc. 71–
+66, p. 2 (Office of General Counsel functions); see also ECF 
+Doc. 71–46, p. 5 (Former Secretary of the Department at­
+testing “the Department cannot meet its statutory obliga­
+tions at the levels of staffing proposed by the Defendants”). 
+The Government, for its part, submitted no evidence to
+rebut the factual record compiled by the plaintiffs.  Nor did 
+it argue that the Executive could singlehandedly abolish
+the Department.  Instead, it asserted that the mass termi­
+nation fell within the President’s authority because it was 
+simply part of an effort to “streamlin[e]” the Department.
+App. 118a. 
+2 
+The District Court granted the preliminary injunction 
+motion. The court found that “the record abundantly re­
+veals that Defendants’ true intention is to effectively dis­
+mantle the Department without an authorizing statute,”
+and that the terminations would prevent the Department 
+from “carry[ing] out its statutory functions.”  Id., at 2a–3a. 
+That unilateral executive action, the District Court con­
+cluded, likely violated the separation of powers and the
+Take Care Clause. Id., at 48a. The court further deter­
+mined that the Department had acted arbitrarily and capri­
+ciously, in violation of the Administrative Procedure Act, by 
+
+ 
+ 
+ 
+ 
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+ 
+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+11 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+failing to provide a reasoned explanation for the termina­
+tions. Id., at 60a.  Accordingly, the District Court enjoined 
+the Government from carrying out the March 11 Directive, 
+Executive Order No. 14242, and the March 21 Transfer Or­
+der. It also ordered the Department to “reinstate federal 
+employees” terminated pursuant to the March 11 Directive
+“to restore the Department to the status quo such that it is
+able to carry out its statutory functions.”  Id., at 88a. 
+The First Circuit denied the Government’s request to
+stay the District Court’s preliminary injunction pending ap­
+peal. The Government, the First Circuit concluded, “d[id]
+not even attempt to engage with the District Court’s record-
+based findings about the extent of the [reduction in force],” 
+“the intent behind both it and the transfer of functions to 
+shut down the Department,” or “the disabling impact of 
+those actions on the Department’s ability to carry out stat­
+utorily assigned functions.” Id., at 163a.  The First Circuit 
+also noted that the plaintiffs faced serious irreparable 
+harms from the “Department’s inability to provide its stat­
+utorily mandated services.” Id., at 171a. 
+II 
+Rebuffed twice below, the Government now tries its hand 
+at seeking emergency relief from this Court.  Granting such
+relief is a matter of this Court’s discretion, which we have 
+previously exercised “only under extraordinary circum­
+stances.” Ruckelshaus v. Monsanto Co., 463 U. S. 1315, 
+1316 (1983) (Blackmun, J., in chambers).  An applicant 
+bears an “especially heavy burden” to justify our interven­
+tion where, as here, the matter remains pending before the 
+Court of Appeals, and two lower courts have already denied 
+interim relief. Packwood v. Senate Select Comm. on Ethics, 
+510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). 
+Ordinarily, the Court considers the applicant’s likelihood of 
+success on the merits of an appeal to this Court, the balance 
+
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+12 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+of the equities, and the likelihood of irreparable harm ab­
+sent emergency intervention. See Hollingsworth v. Perry, 
+558 U. S. 183, 190 (2010) (per curiam); Nken v. Holder, 556 
+U. S. 418, 434 (2009). 
+A 
+1 
+The Government’s arguments stumble from the start.  In 
+our constitutional order, Congress “makes laws” and the
+President “‘faithfully execute[s]’ them.” Utility Air Regula­
+tory Group v. EPA, 573 U. S. 302, 327 (2014) (quoting U. S.
+Const., Art. II, §3; alteration in original).  “The Founders of 
+this Nation entrusted the lawmaking power to the Congress
+alone,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 
+579, 589 (1952), and “[t]here is no provision in the Consti­
+tution that authorizes the President to enact, to amend, or 
+to repeal statutes.” Clinton v. City of New York, 524 U. S. 
+417, 438 (1998).
+The President thus lacks unilateral authority to close a
+Cabinet-level agency. Congress created the Department,
+and only Congress can abolish it.  The President, too, may
+not refuse to carry out statutorily mandated functions as­
+signed to the Department, for he must “take Care that the
+Laws be faithfully executed.” Art. II, §3.
+Rather than contest these bedrock principles, the Gov­
+ernment below contended that the mass terminations were 
+not part of any planned closure, but instead simply in­
+tended to “cut bureaucratic bloat.” App. 118a. The record 
+unambiguously refutes that account.  Indeed, as described 
+above, neither the President nor Secretary McMahon made 
+any secret of their intent to ignore their constitutional du­
+ties. President Trump repeatedly called for the immediate 
+abolition of the Department both during his campaign and 
+after taking office.  See supra, at 4–5. 
+He directed 
+McMahon to “‘put herself out of a job’” on the day of her 
+nomination, supra, at 5, and he formalized that mandate in 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+13 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+an Executive Order, commanding McMahon to “facilitate 
+the closure of the Department of Education,” 90 Fed. Reg.
+13679. Consistent with that directive, McMahon vowed to 
+oversee the Department’s “final mission.”  Supra, at 5. Ra­
+ther than wait for legislative action to begin shuttering the
+Department, McMahon slashed the agency’s work force in 
+half, concededly without analyzing the effect of those termi­
+nations on the Department’s statutorily mandated func­
+tions. See supra, at 5–7. 
+These actions had their desired effect: As the District 
+Court expressly found, “the Department will not be able to
+carry out its statutory functions[,] and in some cases, is al­
+ready unable to do so,” as a result of the mass terminations. 
+App. 3a. Mandatory statutory duties, including the admin­
+istration of federal student aid programs, grants for K–12
+education, IDEA, and English language programs, and the
+enforcement of civil rights laws, are all at risk or currently
+compromised, the District Court determined.  See supra, at 
+6–7, 9–10; App. 3a, 22a–24a, 74a–75a, 79a–80a. 
+The record evidence credited by the District Court and
+unrebutted by the Government thus leads to one conclu­
+sion: The Executive has seized for itself the power to repeal 
+federal law by way of mass terminations, in direct contra­
+vention of the Take Care Clause and our Constitution’s sep­
+aration of powers.
+The Secretary, moreover, unquestionably exceeded Con­
+gress’s statutory limits on her authority to reorganize the 
+Department.  Congress has barred the Secretary from “al­
+ter[ing]” functions assigned to the Department by its or­
+ganic statute and from “abolish[ing] organizational enti­
+ties” established by law. 
+20 U. S. C. §3473(a).  The 
+Secretary’s failure to preserve statutorily mandated func­
+tions, see App. 3a, contravened that statutory constraint. 
+As for the limited subset of offices the Secretary may law­
+fully “discontinue,” §3473(b), moreover, she made no at­
+tempt to provide the requisite 90-day notice and report to 
+
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+14 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+Congress.14 
+This is not to say the Executive may never lawfully 
+streamline an agency’s work force or restructure its discre­
+tionary components, in accordance with law.  Cf. Trump v. 
+American Federation of Government Employees, 606 U. S. 
+___, ___ (2025) (SOTOMAYOR, J., concurring in grant of stay)
+(slip op., at 2).  Indeed, as to the Department, Congress has
+provided clear instructions about how an Executive may 
+lawfully consolidate or discontinue certain specified offices 
+within the agency. See §3473(b).  What the Executive 
+Branch may not do, however, is usurp the power to repeal 
+laws by firing all those necessary to carry them out. 
+2 
+Before this Court, the Government does not defend the 
+lawfulness of its actions.  Rather, in a now-familiar move, 
+it presents a grab bag of jurisdictional and remedial argu­
+ments to support its bid for emergency relief.  None justifies
+this Court’s intervention. 
+The Government first contends that the plaintiffs failed 
+to demonstrate an “‘actual or imminent’” harm fairly trace­
+able to the March 11 Directive.  Application to Stay Injunc­
+tion 15 (quoting FDA v. Alliance for Hippocratic Medicine, 
+602 U. S. 367, 381 (2024)).  Any harms to the plaintiffs from 
+—————— 
+14The Department additionally violated the Administrative Procedure
+Act by failing to provide a “reasoned explanation” for the mass termina­
+tions. Department of Commerce v. New York, 588 U. S. 752, 785 (2019). 
+An agency fails to satisfy that requirement where it proffers only pre­
+textual justifications for its decisions.  See ibid. For the reasons ex­
+plained, the agency’s stated rationale for the mass terminations (to “curb
+inefficiency,” Application to Stay Injunction 7; see App. 118a) is plainly 
+pretextual.  As this Court has said before, “[o]ur review is deferential, 
+but we are ‘not required to exhibit a naiveté from which ordinary citizens 
+are free.’ ” Department of Commerce, 588 U. S., at 785.  Only by ignoring 
+the record and jettisoning common sense could a court accept the Gov­
+ernment’s efficiency rationale as a “genuine justificatio[n]” for the March 
+11 Directive.  Ibid. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+15 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+the Department’s mass termination are simply “‘too specu­
+lative’” to support Article III standing, the Government 
+says. Application to Stay Injunction 15.
+That claim is belied by both the record and common 
+sense. The plaintiff States, schools, and unions rely on a 
+range of Department services that support their operations 
+and allow them to receive federal funding. Dismantling
+those services has jeopardized funding streams and re­
+quired schools to divert resources to fill the gaps, causing 
+concrete monetary damages and operational harm to plain­
+tiffs. Record evidence, moreover, supports the inference
+that slashing the Department’s work force by half without
+any apparent plan to ensure that the Department continues 
+to meet its statutory obligations will imminently cause (and 
+in some cases has already caused) such a degradation in 
+services. 
+Take, for instance, the federal student aid program.  Un­
+der federal law, a college or university may participate in
+federal student aid programs only if it has a “program par­
+ticipation agreement” with the Department and meets eli­
+gibility standards. See 20 U. S. C. §§1094, 1099c, 1099c–1.  
+When a school wants to accept students eligible for federal
+financial aid, it must receive an initial certification from the 
+Department and then be recertified regularly. State Re­
+spondents’ App. 156–157. If a school is due for (re)certifica­
+tion, even months-long delays in the certification process 
+can hobble the school’s ability to enroll students who de­
+pend on federal financial aid.
+Unsurprisingly, the mass termination of Department em­
+ployees, including most of the Department staff that han­
+dles certifications and recertifications, has already resulted
+in harms to institutions seeking to enroll students on finan­
+cial aid.  The State plaintiffs submitted affidavits showing 
+that a technical college in Washington State, for instance, 
+did not receive recertification for one of its campuses in time
+for the start of the spring 2025 semester. App. 71a; State 
+
+ 
+  
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+16 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+Respondents’ App. 133–136.  Although, in the past, it took
+less than 7 weeks to approve recertification applications,
+the Department took 18.5 weeks to approve the application.
+See App. 71a. As a result, the school was forced to forgo
+admitting students eligible for federal financial aid, and the 
+total enrollment for the term was less than one-fifth of the 
+expected size, costing the college lost tuition funds.  State 
+Respondents’ App. 135. That type of pocketbook harm is a
+prototypical Article III injury. See, e.g., Czyzewski v. Jevic 
+Holding Corp., 580 U. S. 451, 464 (2017).  Other schools run 
+by the State plaintiffs undoubtedly share this experience. 
+That showing is sufficient for the lawsuit to proceed. See 
+Town of Chester v. Laroe Estates, Inc., 581 U. S. 433, 439 
+(2017) (recognizing that “[a]t least one plaintiff must have
+standing” to seek the requested relief for a case to proceed).
+But it is only one of several concrete examples of harm fairly
+traceable to the mass terminations. To mention just two
+more, the District Court detailed evidence of delays in fed­
+eral funding attributable at least in part to the reduction in 
+force. For instance, the New York State Education Depart­
+ment, which is “currently administering $15.7 billion in fed­
+eral funding from the Department,” has been “experiencing 
+drawdow[n] delays” for certain federal funding reimburse­
+ments “since the [reduction in force] announcement.” App.
+64a. The New Jersey Department of Education, similarly,
+“received a notice to expect delays in connecting to a live 
+help desk agent because of severe staffing restraints when
+attempting to view and withdraw federal funds to use for
+its programs and to pay vendors.” Ibid. (internal quotation
+marks omitted). And the Illinois State Board of Education 
+“has been unable to access certain categories of funding
+since March 1, 2025,” in the lead up to the reduction in 
+force. Ibid. 
+The March 11 Directive, moreover, has led to the full clo­
+sure of certain offices that provide critical services to plain­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+17 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+tiffs. The Office of English Language Acquisition, for in­
+stance, has been “completely abolished and staff from [a
+separate office] are absorbing statutorily required work,” 
+id., at 73a, despite statutory limits on the Secretary’s abil­
+ity 
+to 
+“discontinue” 
+that 
+office, 
+see 
+20 
+U. S. C. 
+§3473(b)(1)(A). The District Court found that the “closure” 
+of that office will “irreparably harm Plaintiffs’ ability to
+serve their English language learners” by disrupting fund­
+ing streams and creating delays in the provision of services,
+see App. 73a, and the Government offers no reason to be­
+lieve that finding is clearly erroneous. The Government’s 
+standing argument thus provides no legitimate basis for the
+majority’s decision to issue emergency relief. 
+The Government’s remaining arguments are even less 
+persuasive. The Government claims that the Civil Service 
+Reform Act of 1978 divests the District Court of subject-
+matter jurisdiction over this suit because it channels claims
+regarding personnel decisions exclusively through the 
+Merit System Protection Board and the Federal Labor Re­
+lations Authority. Application to Stay Injunction 8, 25–26 
+(citing 5 U. S. C. §§7105(a)(2), 7512, 7513(d), 7701).  Plain­
+tiffs, however, are not challenging individual employment
+decisions, nor are they suing for the benefit of individual
+Department employees.  Rather, they are challenging the 
+effective dismantling of the Department itself.  Cf. Axon En­
+terprise, Inc. v. FTC, 598 U. S. 175, 189 (2023) (recognizing 
+it would be “surprising” if challenges regarding “the struc­
+ture or very existence of an agency” had to proceed through
+a specialized statutory review scheme designed for chal­
+lenges to specific agency decisions, like “firing an em­
+ployee”).
+The Government lastly challenges components of the Dis­
+trict Court’s remedial order.  In particular, the Government
+contends the District Court lacked authority to order rein­
+statement of the fired employees and, alternatively, that 
+
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+18 
+MCMAHON v. NEW YORK 
+SOTOMAYOR, J., dissenting 
+the reinstatement order is overbroad because it is not ade­
+quately tailored to restore the particular Department func­
+tions upon which the plaintiffs rely.  See Application to Stay
+Injunction 30–34. 
+The Government, however, failed to 
+raise the former argument before the District Court, and 
+therefore forfeited it, as the First Circuit recognized.  See 
+App. 166a. As to the latter argument, which the Govern­
+ment meaningfully raises for the first time here, the proper
+course is to leave questions of “whether a narrower injunc­
+tion is appropriate” to the lower courts in the “first in­
+stance.” Trump v. CASA, Inc., 606 U. S. ___, ___ (2025) (slip 
+op., at 19). At bottom, the Government’s late-raised reme­
+dial arguments cannot justify lifting the preliminary in­
+junction in its entirety, as the majority does today.  That 
+ruling facilitates the Executive’s power grab by permitting 
+the mass terminations to go into effect wholesale, even as
+some narrower remedy may be appropriate. 
+B 
+The equities, too, cut against the Government.  While 
+“‘equity does not demand that its suitors shall have led 
+blameless lives’” as to other matters, “it does require that
+they shall have acted fairly and without fraud or deceit as 
+to the controversy in issue.”  Precision Instrument Mfg. Co. 
+v. Automotive Maintenance Machinery Co., 324 U. S. 806, 
+814–815 (1945) (citing Keystone Driller Co. v. General Ex­
+cavator Co., 290 U. S. 240, 245 (1933)).  The Government 
+has continued to press a plainly pretextual explanation for 
+the mass firings in court, even as the Executive makes in­
+consistent statements to the public. See supra, at 12–13, 
+and n. 14. That the majority sees fit to repay that obfusca­
+tion with emergency equitable relief is troubling. 
+The relative harms to the parties are also vastly dispro­
+portionate. While the Government will, no doubt, suffer 
+pocketbook harms from having to pay employees that it 
+sought to fire as the litigation proceeds, see App. 169a– 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+19 
+Cite as: 606 U. S. ____ (2025) 
+SOTOMAYOR, J., dissenting 
+170a, the harm to this Nation’s education system and indi­
+vidual students is of a far greater magnitude.  The Depart­
+ment is responsible for providing critical funding and ser­
+vices to millions of students and scores of schools across the 
+country. Lifting the District Court’s injunction will unleash
+untold harm, delaying or denying educational opportunities 
+and leaving students to suffer from discrimination, sexual
+assault, and other civil rights violations without the federal 
+resources Congress intended. 
+The majority apparently
+deems it more important to free the Government from pay­
+ing employees it had no right to fire than to avert these very 
+real harms while the litigation continues. Equity does not
+support such an inequitable result. 
+* 
+* 
+* 
+The President must take care that the laws are faithfully
+executed, not set out to dismantle them. That basic rule 
+undergirds our Constitution’s separation of powers.  Yet to­
+day, the majority rewards clear defiance of that core princi­
+ple with emergency relief.  Because I cannot condone such 
+abuse of our equitable authority, I respectfully dissent. 
diff --git a/corpus/law/text/a25c423818d1e77b.txt b/corpus/law/text/a25c423818d1e77b.txt
new file mode 100644
index 0000000000000000000000000000000000000000..f78625e20cf82176ac0ece162df3c78d1fb26c7d
--- /dev/null
+++ b/corpus/law/text/a25c423818d1e77b.txt
@@ -0,0 +1,178 @@
+Corrigendum: Political Regimes and External Voting Rights: A Cross-National Comparison
+
+CORRECTION article Front. Polit. Sci., 03 September 2021 | https://doi.org/10.3389/fpos.2021.750617
+
+Corrigendum: Political Regimes and
+External Voting Rights: A
+Cross-National Comparison
+Sebastián A. Umpierrez de Reguero 1,2,3*, Inci O€yku€Yener-Roderburg 4,5 and
+Vivian Cartagena 6,7
+1Institute of Research in Social Science, Diego Portales University, Santiago, Chile, 2Institute of History, Leiden University, Leiden,
+Netherlands, 3Global Citizenship Observatory, European University Institute, Fiesole, Italy, 4Department of Turkey Studies,
+University of Duisburg-Essen, Duisburg, Germany, 5Department of Political Science, Université de Strasbourg, Strasbourg,
+France, 6Research Department, Casa Grande University, Guayaquil, Ecuador, 7The Permanent Committee for the Defense of
+Human Rights, Guayaquil, Ecuador
+Keywords: political regime, external voting rights, democratization, authoritarianism, emigrant enfranchisement,
+democracy
+A Corrigendum on
+Political Regimes and External Voting Rights: A Cross-National Comparison
+by Umpierrez de Reguero, S. A., Yener-Roderburg, I. Ö. and Cartagena, V. (2021). Front. Political Sci.
+3:10. doi: 10.3389/fpos.2021.636734
+In the original article, there was an error. Hazard ratio data were listed incorrectly. A correction has
+been made to LARGE-N ANALYSIS: IS DEMOCRACY CONDUCTIVE TO EMIGRANT
+ENFRANCHISEMENT? Findings, paragraphs 1–4:
+FINDINGS
+Our models are significant (global p-value [Log-Rank] < 0,10) and the Concordance indexes oscillate
+from 0.59 to 0.68, which are the habitual results when Cox Proportional Hazard Ratios satisfactorily
+fit. Additionally, each model passed the linktest diagnostic for misspecification.
+Figure 2 shows that de jure emigrant enfranchisement positively correlates to democracy. As
+expected, higher levels of inclusion and contestation, along with higher indicators in terms of rule of
+law and liberal principles, result in higher odds of enacting external voting rights. We find liberal
+democracies are around two times more likely to enact voting rights for nonresident citizens (HR 2.1;
+p-value < 0.05), as compared to closed autocracies. While electoral democracy is insignificant in the
+model, electoral autocracies are also positively correlated with de jure emigrant enfranchisement,
+more than twice as likely as compared to closed autocracies (HR 1.9; p-value < 0.05). This is
+unsurprising since most closed autocracies such as North Korea and Saudi Arabia do not hold
+elections. A few exceptions appear, such as Algeria under the command of Houari Boumédiène
+(1965–1978), which passed a modest external voting rights provision in the 1976 Constitution
+(Brand, 2010).
+Figure 3 complements our previous results by showing the timing of de facto emigrant
+enfranchisement. On this occasion, all types of political regimes are significant. Similar to our
+first model in which democracy was conducive to de jure emigrant enfranchisement, Figure 3 shows
+that liberal democracies are about five times more likely to implement an external voting provision
+(HR 5.1; p-value < 0.001) and around four times more likely if the country is classified as an electoral
+Edited and reviewed by:
+Johanna Peltoniemi,
+University of Helsinki, Finland
+*Correspondence:
+Sebastián A. Umpierrez de Reguero
+sebastian.umpierrez@mail.udp.cl
+Specialty section:
+This article was submitted to
+Elections and Representation,
+a section of the journal
+Frontiers in Political Science
+Received: 30 July 2021
+Accepted: 06 August 2021
+Published: 03 September 2021
+Citation:
+Umpierrez de Reguero SA,
+Yener-Roderburg IO and Cartagena V
+(2021) Corrigendum: Political Regimes
+and External Voting Rights: A Cross-
+National Comparison.
+Front. Polit. Sci. 3:750617.
+doi: 10.3389/fpos.2021.750617
+Frontiers in Political Science | www.frontiersin.org
+September 2021 | Volume 3 | Article 750617
+1
+CORRECTION
+published: 03 September 2021
+doi: 10.3389/fpos.2021.750617
+
+democracy (HR 3.7; p-value < 0.001). Although probabilities are
+reduced if the country is an electoral autocracy (HR 3.2; p-value <
+0.01), it still represents a robust positive correlation to de facto
+emigrant enfranchisement. As in Model 1, closed autocracy is the
+reference
+category.
+Overall,
+most
+countries
+classified
+as
+autocracies display a negative outcome or ‘0’, when referring
+to implementing external voting rights, regardless of whether
+they had previously passed a provision to enfranchise their
+nonresident citizens. Certain countries, such as Angola and
+Nicaragua, promulgated provisions to organize external voting
+decades ago, but have not implemented corresponding legislation
+(Ellis et al., 2007; Palop-García and Pedroza, 2019).
+Four Cox Proportional Hazard Models ensured our results
+remain the same when including another measurement of
+democracy. Table 1 demonstrates that the probabilities of
+positive
+correlation
+between
+democracy
+and
+emigrant
+enfranchisement remain high. Adding two dummy variables as
+controls, we corroborate that a democratic regime is a strong
+predictor of both enacting and implementing external voting
+rights. Surprisingly, belonging to both the EU and OECD does
+not have a significant impact on the odds for origin states to
+undertake de jure and de facto emigrant enfranchisement. So,
+how and why do some democracies choose not to pass and/or
+implement external voting rights, while some autocracies do?”
+In the original article, there was a mistake in Figure 2 as
+published. Hazard ratio data were displayed incorrectly. The
+corrected Figure 2 appears below.
+In the original article, there was a mistake in Figure 3 as
+published. Hazard ratio data were displayed incorrectly. The
+corrected Figure 3 appears below.
+In the original article, there was a mistake in Table 1 as
+published. Hazard ratio data were displayed incorrectly. The
+corrected Table 1 appears below.
+The authors apologize for this error and state that this does not
+change the scientific conclusions of the article in any way. The
+original article has been updated.
+Publisher’s Note: All claims expressed in this article are solely those of the authors
+and do not necessarily represent those of their affiliated organizations, or those of
+the publisher, the editors and the reviewers. Any product that may be evaluated in
+this article, or claim that may be made by its manufacturer, is not guaranteed or
+endorsed by the publisher.
+Copyright © 2021 Umpierrez de Reguero, Yener-Roderburg and Cartagena. This is
+an open-access article distributed under the terms of the Creative Commons
+Attribution License (CC BY). The use, distribution or reproduction in other
+forums is permitted, provided the original author(s) and the copyright owner(s)
+are credited and that the original publication in this journal is cited, in accordance
+with accepted academic practice. No use, distribution or reproduction is permitted
+which does not comply with these terms.
+FIGURE 2 | Hazard ratios, de jure emigrant enfranchisement vs. political regimes.
+Frontiers in Political Science | www.frontiersin.org
+September 2021 | Volume 3 | Article 750617
+2
+Umpierrez de Reguero et al.
+Corrigendum: Political Regimes and External Voting Rights
+
+FIGURE 3 | Hazard ratios, de facto emigrant enfranchisement vs. political regimes.
+TABLE 1 | Hazard ratios, emigrant enfranchisement vs. political regimes.
+De jure emigrant enfranchisement
+De facto emigrant enfranchisement
+M1
+M2
+M3
+M4
+Liberal democracy (Index V-DEM)
+0.85***
+0.83***
+Electoral democracy (Index V-DEM)
+0.86***
+0.85***
+EU
+1.01
+1.02
+OECD
+1.03
+1.03
+Concordance index
+0.73 (se 
 0.02)
+0.77 (se 
 0.02)
+0.78 (se 
 0.02)
+0.81 (se 
 0.01)
+Likelihood ratio test
+12.8 (df 
 2)**
+17.5 (df 
 2)***
+18.5 (df 
 2)***
+22.6 (df 
 2)***
+Score (LogRank) test
+12.6 (df 
 2)**
+17.2 (df 
 2)***
+18.2 (df 
 2)***
+22.3 (df 
 2)***
+Frontiers in Political Science | www.frontiersin.org
+September 2021 | Volume 3 | Article 750617
+3
+Umpierrez de Reguero et al.
+Corrigendum: Political Regimes and External Voting Rights
diff --git a/corpus/law/text/a3036b2eeb98ed1f.txt b/corpus/law/text/a3036b2eeb98ed1f.txt
new file mode 100644
index 0000000000000000000000000000000000000000..9daedca761963800f95b1b00d10fab6ec52fc5ac
--- /dev/null
+++ b/corpus/law/text/a3036b2eeb98ed1f.txt
@@ -0,0 +1,3 @@
+Complex Correctional Institutions at the Present Stage of Reforming the Penal Enforcement System of the Russian Federation
+
+Introduction: the article is devoted to the creation of correctional institutions of combined type with regard to the current penal enforcement legislation and the Concept for the development of the penal enforcement system of the Russian Federation up to 2030. The foundation of correctional institutions of this type corresponds to the modern penal enforcement policy of the Russian Federation, but requires scientific study. The relevance of the presented article is also determined by modern trends in penitentiary science and practice. Purpose: on the basis of generalization and analysis of official statistical data, theoretical and scientific sources, findings and approaches of scientists-penitentiaries, to comprehensively reveal the prospects for establishing institutions of combined type at the current stage of the RF penal enforcement system development. Methods: the dialectical method of scientific cognition was used when writing a scientific article. The following scientific methods of cognition were also applied: comparative law, induction, deduction, analysis, synthesis, and statistical. Results: in the course of the study and based on its results, the authors developed a theoretical model of a complex correctional institution (institution of combined type), which includes separate areas proposed and scientifically justified by the authors. Each area of the combined type institution selected by the authors is described separately and in detail. The theoretical model of a complex correctional institution (institution of combined type) corresponds to the provisions of the current legislation, as well as the prospects for its development up to 2030, and also widens and complements them. Conclusions: in order to capture correctional facilities of a combined type in the RF penal enforcement legislation, it is proposed to enshrine the theoretical model of a complex correctional institution proposed by the authors in the corresponding articles.
\ No newline at end of file
diff --git a/corpus/law/text/a34bfafed301e465.txt b/corpus/law/text/a34bfafed301e465.txt
new file mode 100644
index 0000000000000000000000000000000000000000..8b54cd4f0cdb397cd67213fe97db1f53700713ca
--- /dev/null
+++ b/corpus/law/text/a34bfafed301e465.txt
@@ -0,0 +1,65 @@
+Correction: The climate mitigation effect of legal institutions: environmental courts and urban carbon balance
+
+Correction: The climate
+mitigation effect of legal
+institutions: environmental courts
+and urban carbon balance
+Ziyang Long1, Junhan Zhou2 and Shutang Feng3*
+1Economics and Management School, Wuhan University, Wuhan, China, 2School of Finance and Public
+Economics, Shanxi University of Finance and Economics, Taiyuan, China, 3Lingnan College, Sun Yat-sen
+University, Guangzhou, China
+KEYWORDS
+environmental judicature, environmental
+courts, urban carbon balance, carbon
+emissions, carbon sinks
+A Correction on
+The climate mitigation effect of legal institutions: environmental courts
+and urban carbon balance
+by Long Z, Zhou J and Feng S (2025). Front. Environ. Sci. 13:1622148. doi: 10.3389/fenvs.
+2025.1622148
+Affiliation School of Finance and Public Economics, Shanxi University of Finance and
+Economics, Taiyuan, China was omitted for author Junhan Zhou, who was incorrectly
+assigned the affiliation “Lingnan College, Sun Yat-sen University, Guangzhou, China”. The
+new affiliation has now been added.
+The original article has been updated.
+Publisher’s note
+All claims expressed in this article are solely those of the authors and do not necessarily
+represent those of their affiliated organizations, or those of the publisher, the editors and the
+reviewers. Any product that may be evaluated in this article, or claim that may be made by
+its manufacturer, is not guaranteed or endorsed by the publisher.
+OPEN ACCESS
+APPROVED BY
+Frontiers Editorial Office,
+Frontiers Media SA, Switzerland
+*CORRESPONDENCE
+Shutang Feng,
+shutangfengsysu@163.com
+RECEIVED 22 October 2025
+REVISED 23 October 2025
+ACCEPTED 23 October 2025
+PUBLISHED 10 November 2025
+CITATION
+Long Z, Zhou J and Feng S (2025) Correction:
+The climate mitigation effect of legal
+institutions: environmental courts and urban
+carbon balance.
+Front. Environ. Sci. 13:1730108.
+doi: 10.3389/fenvs.2025.1730108
+COPYRIGHT
+© 2025 Long, Zhou and Feng. This is an open-
+access article distributed under the terms of the
+Creative Commons Attribution License (CC BY).
+The use, distribution or reproduction in other
+forums is permitted, provided the original
+author(s) and the copyright owner(s) are
+credited and that the original publication in this
+journal is cited, in accordance with accepted
+academic practice. No use, distribution or
+reproduction is permitted which does not
+comply with these terms.
+Frontiers in Environmental Science
+frontiersin.org
+01
+TYPE Correction
+PUBLISHED 10 November 2025
+DOI 10.3389/fenvs.2025.1730108
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+PRELIMINARY PRINT 
+Volume 596 U. S. Part 1 
+Pages 212–241 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 28, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+212 
+OCTOBER TERM, 2021 
+Syllabus 
+CUMMINGS v. PREMIER REHAB KELLER, P.L.L.C. 
+on petition for writ of certiorari to the united 
+states court of appeals for the fth circuit 
+No. 20–219. Argued November 30, 2021—Decided April 28, 2022 
+Jane Cummings, who is deaf and legally blind, sought physical therapy 
+services from Premier Rehab Keller and asked Premier Rehab to pro­
+vide an American Sign Language (ASL) interpreter at her sessions. 
+Premier Rehab declined to do so, telling Cummings that the therapist 
+could communicate with her through other means. Cummings later 
+fled a lawsuit seeking damages and other relief against Premier Rehab, 
+alleging that its failure to provide an ASL interpreter constituted dis­
+crimination on the basis of disability in violation of the Rehabilitation 
+Act of 1973 and the Affordable Care Act. Premier Rehab is subject 
+to these statutes, which apply to entities that receive federal fnancial 
+assistance, because it receives reimbursement through Medicare and 
+Medicaid for the provision of some of its services. The District Court 
+determined that the only compensable injuries allegedly caused by Pre­
+mier Rehab were emotional in nature. It held that damages for emo­
+tional harm are not recoverable in private actions brought to enforce 
+either statute. The District Court thus dismissed the complaint, and 
+the Fifth Circuit affrmed. 
+Held: Emotional distress damages are not recoverable in a private action 
+to enforce either the Rehabilitation Act of 1973 or the Affordable Care 
+Act. Pp. 217–230. 
+(a) Congress has broad power under the Spending Clause of the Con­
+stitution to “fx the terms on which it shall disburse federal money.” 
+Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17. 
+Pursuant to that authority, Congress has enacted statutes prohibiting 
+recipients of federal fnancial assistance from discriminating on the basis 
+of certain protected characteristics. This Court has held that such stat­
+utes may be enforced through implied rights of action. Barnes v. Gor­
+man, 536 U. S. 181, 185. Although it is “beyond dispute that private 
+individuals may sue” to enforce the antidiscrimination statutes at issue 
+here, “it is less clear what remedies are available in such a suit.” Ibid. 
+The Court's cases have clarifed that whether a particular remedy is 
+recoverable must be informed by the way Spending Clause “statutes 
+operate”: by “conditioning an offer of federal funding on a promise by 
+the recipient not to discriminate, in what amounts essentially to a con­
+tract between the Government and the recipient of funds.” Gebser v. 
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 212 (2022) 
+213 
+Syllabus 
+Lago Vista Independent School Dist., 524 U. S. 274, 286. Because 
+Spending Clause legislation operates based on consent, the “legitimacy 
+of Congress' power” to enact such laws rests not on its sovereign au­
+thority, but on “whether the [recipient] voluntarily and knowingly ac­
+cepts the terms of th[at] `contract.' ” Barnes, 536 U. S., at 186 (quoting 
+Pennhurst, 451 U. S., at 17). The Court has regularly applied this 
+contract-law analogy to defne the scope of conduct for which funding 
+recipients may be held liable, with an eye toward ensuring that recipi­
+ents had notice of their obligations. “The same analogy,” Barnes, 536 
+U. S., at 187, similarly limits “the scope of available remedies.” Gebser, 
+524 U. S., at 287. Thus, a particular remedy is available in a private 
+Spending Clause action “only if the funding recipient is on notice that, 
+by accepting federal funding, it exposes itself to liability of that nature.” 
+Barnes, 536 U. S., at 187. Pp. 217–220. 
+(b) To decide whether emotional distress damages are available under 
+the Spending Clause statutes in this case, the Court therefore asks 
+whether a prospective funding recipient deciding whether to accept fed­
+eral funds would have had “clear notice” regarding that liability. Ar­
+lington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 296. 
+Because the statutes at issue are silent as to available remedies, it is 
+not obvious how to decide that question. Confronted with the same 
+dynamic in Barnes, which involved the question whether punitive dam­
+ages are available under the same statutes, the Court followed the con­
+tract analogy and concluded that a federal funding recipient may be 
+considered “on notice that it is subject . . . to those remedies tradition­
+ally available in suits for breach of contract.” 536 U. S., at 187. Given 
+that punitive damages “are generally not available for breach of con­
+tract,” the Court concluded that funding recipients “have not, merely 
+by accepting funds, implicitly consented to liability for punitive dam­
+ages.” Id., at 187–188. 
+Crucial here, the Court in Barnes considered punitive damages gener­
+ally unavailable for breach of contract despite the fact that such dam­
+ages are hardly unheard of in contract cases: Treatises cited in Barnes 
+described punitive damages as recoverable in contract where “the con­
+duct constituting the breach is also a tort for which punitive damages 
+are recoverable.” Restatement (Second) of Contracts § 355, p. 154. 
+That recognized exception to the general rule, however, was not enough 
+to give funding recipients the requisite notice that they could face such 
+damages. Under Barnes, the Court thus presumes that recipients are 
+aware that they may face the usual contract remedies in private suits 
+brought to enforce their Spending Clause “contract” with the Federal 
+Government. Pp. 220–221. 
+
+Page Proof Pending Publication
+214 
+CUMMINGS v. PREMIER REHAB KELLER 
+Syllabus 
+(c) The above framework produces a straightforward analysis in this 
+case. Hornbook law states that emotional distress is generally not com­
+pensable in contract. Under Barnes, the Court cannot treat federal 
+funding recipients as having consented to be subject to damages for 
+emotional distress, and such damages are accordingly not recoverable. 
+Cummings argues for a different result, maintaining that traditional 
+contract remedies here do include damages for emotional distress, be­
+cause there is an exception—put forth in some contract treatises—under 
+which such damages may be awarded where a contractual breach is 
+particularly likely to result in emotional disturbance. See, e. g., Re­
+statement (Second) of Contracts § 353. That special rule is met here, 
+Cummings contends, because discrimination is very likely to engender 
+mental anguish. This approach would treat funding recipients as on 
+notice that they will face not only the general rules, but also “more fne-
+grained,” exceptional rules that “govern[ ] in the specifc context” at 
+hand. Brief for Petitioner 33–35. That is inconsistent with both 
+Barnes and the Court's larger Spending Clause jurisprudence. Barnes 
+necessarily concluded that the existence of an on-point exception to the 
+general rule against punitive damages was insuffcient to put funding 
+recipients on notice of their exposure to that particular remedy. No 
+adequate explanation has been offered for why the Court—bound by 
+Barnes—should reach a different result here. The approach offered by 
+Cummings pushes the notion of offer and acceptance, central to the 
+Court's Spending Clause cases, past its breaking point. It is one thing 
+to say that funding recipients will know the basic, general rules. It is 
+quite another to assume that they will know the contours of every con­
+tract doctrine, no matter how idiosyncratic or exceptional. Cummings 
+would essentially incorporate the law of contract remedies wholesale, 
+but Barnes constrains courts to imply only those remedies “that [are] 
+normally available for contract actions.” 536 U. S., at 188. In urging 
+the Court to disregard that restriction, Cummings would have the Court 
+treat statutory silence as a license to freely supply remedies the Court 
+cannot be sure Congress would have chosen. Such an approach “risks 
+arrogating legislative power,” Hernández v. Mesa, 589 U. S. –––, –––, 
+and is particularly untenable in a context requiring “clear notice regard­
+ing the liability at issue,” Arlington, 548 U. S., at 296. 
+Even if it were appropriate to treat funding recipients as aware that 
+they may be subject to “rare” contract-law rules that are “satisfed only 
+in particular settings,” Brief for Petitioner 34, funding recipients would 
+still lack the requisite notice that emotional distress damages are avail­
+able under the statutes at issue. That is because the Restatement's 
+formulation—that such damages are available where “the contract or 
+the breach is of such a kind that serious emotional disturbance was a 
+
+Cite as: 596 U. S. 212 (2022) 
+215 
+Syllabus 
+particularly likely result,” § 353—does not refect the consensus rule 
+among American jurisdictions. There is in fact no majority rule on 
+what circumstances, if any, may trigger the exceptional allowance of 
+such damages. For instance, many states reject the broad and gener­
+ally phrased Restatement exception because they award emotional dis­
+tress damages only in a narrow and idiosyncratic group of cases in which 
+the breaching conduct would also have been a tort. These cases unsur­
+prisingly mix contract, quasi-contract, and tort principles together, sug­
+gesting that they do not establish or evince a rule of contract law. 
+Emotional distress damages are not “traditionally available in suits 
+for breach of contract.” Barnes, 536 U. S., at 187. There is correspond­
+ingly no ground, under the Court's cases, to conclude that federal fund­
+ing recipients have “clear notice,” Arlington, 548 U. S., at 296, that they 
+would face such a remedy in private actions brought to enforce the stat­
+utes here. Pp. 221–230. 
+948 F. 3d 673, affrmed. 
+Roberts, C. J., delivered the opinion of the Court, in which Thomas, 
+Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Kavanaugh, 
+J., fled a concurring opinion, in which Gorsuch, J., joined, post, p. 230. 
+Breyer, J., fled a dissenting opinion, in which Sotomayor and Kagan, 
+JJ., joined, post, p. 231. 
+Andrew Rozynski argued the cause for petitioner. With 
+him on the briefs was Edward C. DuMont. 
+Colleen E. Roh Sinzdak argued the cause for the United 
+States as amicus curiae supporting petitioner. With her on 
+the brief were Deputy Solicitor General Kneedler, Assistant 
+Attorney General Clarke, and Bonnie I. Robin-Vergeer. 
+Kannon K. Shanmugam argued the cause for respondent. 
+With him on the brief were William T. Marks and Brian 
+Scott Bradley.* 
+*Briefs of amici curiae urging reversal were fled for the American Asso­
+ciation for Justice by Robert S. Peck and Jeffrey R. White; for Disability Or­
+ganizations by Raff Melkonian; for Law Professors by Elizabeth B. Wydra 
+and Brianne J. Gorod; and for the NAACP Legal Defense and Educational 
+Fund, Inc., et al. by Sherrilyn A. Ifll, Janai S. Nelson, Samuel Spital, 
+Cara McClellan, David D. Cole, Jin Hee Lee, Mahogane D. Reed, Jennesa 
+Calvo-Friedman, Sandra S. Park, Emily Martin, and Andre Segura. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Texas et al. by Ken Paxton, Attorney General of Texas, Judd E. Stone II, 
+Page Proof Pending Publication
+
+216 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+Chief Justice Roberts delivered the opinion of the 
+Court. 
+Congress has broad power under the Spending Clause of 
+the Constitution to set the terms on which it disburses fed­
+eral funds. “[L]egislation enacted pursuant to the spending 
+power is much in the nature of a contract: in return for fed­
+eral funds, the [recipients] agree to comply with federally 
+imposed conditions.” Pennhurst State School and Hospital 
+v. Halderman, 451 U. S. 1, 17 (1981). Exercising this au­
+thority, Congress has passed a number of statutes prohibit­
+ing recipients of federal fnancial assistance from discrimi­
+nating based on certain protected characteristics. We have 
+held that these statutes may be enforced through implied 
+rights of action, and that private plaintiffs may secure in­
+junctive or monetary relief in such suits. See Barnes v. 
+Gorman, 536 U. S. 181, 185, 187 (2002). Punitive damages, 
+on the other hand, are not available. Id., at 189. The ques­
+tion presented in this case is whether another special form 
+of damages—damages for emotional distress—may be 
+recovered. 
+I 
+Petitioner Jane Cummings is deaf and legally blind, and 
+communicates primarily in American Sign Language (ASL). 
+In October 2016, she sought physical therapy services from 
+respondent Premier Rehab Keller, a small business in the 
+Solicitor General, Brent Webster, First Assistant Attorney General, La­
+nora C. Pettit, Principal Deputy Solicitor General, and Eric J. Hamilton, 
+Assistant Solicitor General, and by the Attorneys General for their respec­
+tive States as follows: Steve Marshall of Alabama, Leslie Rutledge of Ar­
+kansas, Todd Rokita of Indiana, Jeff Landry of Louisiana, Lynn Fitch of 
+Mississippi, John M. O'Connor of Oklahoma, Alan Wilson of South Caro­
+lina, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; for 
+the Chamber of Commerce of the United States of America et al. by 
+Charles J. Cooper, Daryl Joseffer, Karen R. Harned, and Elizabeth Milito; 
+for the National Conference of State Legislatures et al. by Richard A. 
+Simpson, Lisa E. Soronen, and F. Andrew Hessick; and for the Washing­
+ton Legal Foundation by John M. Masslon II and Cory L. Andrews. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+217 
+Opinion of the Court 
+Dallas-Fort Worth area. Cummings requested that Premier 
+Rehab provide an ASL interpreter at her appointments. 
+Premier Rehab declined to do so, telling Cummings that she 
+could communicate with the therapist using written notes, 
+lip reading, or gesturing. Cummings then sought and ob­
+tained care from another provider. 
+Cummings later fled this lawsuit against Premier Rehab, 
+alleging that its failure to provide an ASL interpreter con­
+stituted discrimination on the basis of disability in violation 
+of the Rehabilitation Act of 1973, § 504, 87 Stat. 394, as 
+amended, 29 U. S. C. § 794(a), and the Patient Protection and 
+Affordable Care Act, § 1557, 124 Stat. 260, 42 U. S. C. § 18116. 
+Premier Rehab is subject to these statutes, which apply to 
+entities that receive federal fnancial assistance, because it 
+receives reimbursement through Medicare and Medicaid for 
+the provision of some of its services. In her complaint, 
+Cummings sought declaratory relief, an injunction, and 
+damages. 
+The District Court dismissed the complaint. It observed 
+that “the only compensable injuries that Cummings alleged 
+Premier caused were `humiliation, frustration, and emotional 
+distress.' ” No. 4:18–CV–649–A (ND Tex., Jan. 16, 2019), 
+2019 WL 227411, *4. In the District Court's view, “damages 
+for emotional harm” are not recoverable in private actions 
+brought to enforce the Rehabilitation Act or the Affordable 
+Care Act. Ibid. The Court of Appeals for the Fifth Cir­
+cuit affrmed, adopting the same conclusion. 948 F. 3d 673 
+(2020). 
+We granted certiorari. 594 U. S. ––– (2021). 
+II 
+A 
+Pursuant to its authority to “fx the terms on which it shall 
+disburse federal money,” Pennhurst, 451 U. S., at 17, Con­
+gress has enacted four statutes prohibiting recipients of fed­
+eral fnancial assistance from discriminating based on certain 
+Page Proof Pending Publication
+
+218 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+protected grounds. Title VI of the Civil Rights Act of 1964 
+forbids race, color, and national origin discrimination in 
+federally funded programs or activities. 78 Stat. 252, 42 
+U. S. C. § 2000d. Title IX of the Education Amendments of 
+1972 similarly prohibits sex-based discrimination, 86 Stat. 
+373, 20 U. S. C. § 1681, while the Rehabilitation Act bars 
+funding recipients from discriminating because of disability. 
+29 U. S. C. § 794. Finally, the Affordable Care Act outlaws 
+discrimination on any of the preceding grounds, in addition 
+to age, by healthcare entities receiving federal funds. 42 
+U. S. C. § 18116. 
+None of these statutes expressly provides victims of dis­
+crimination a private right of action to sue the funding recip­
+ient in federal court. But as to both Title VI and Title IX, 
+our decision in Cannon v. University of Chicago, 441 U. S. 
+677, 703 (1979), “found an implied right of action.” Barnes, 
+536 U. S., at 185. Congress later “acknowledged this right 
+in amendments” to both statutes, ibid., leading us to conclude 
+that it had “ratifed Cannon's holding” that “private individ­
+uals may sue to enforce” both statutes. Alexander v. San­
+doval, 532 U. S. 275, 280 (2001); see also Franklin v. Gwin­
+nett County Public Schools, 503 U. S. 60, 72–73 (1992). As 
+to the Rehabilitation Act and the Affordable Care Act—the 
+two statutes directly at issue in this litigation—each ex­
+pressly incorporates the rights and remedies provided under 
+Title VI. 29 U. S. C. § 794a(a)(2); 42 U. S. C. § 18116(a). 
+Although it is “beyond dispute that private individuals 
+may sue to enforce” the antidiscrimination statutes we con­
+sider here, “it is less clear what remedies are available in 
+such a suit.” Barnes, 536 U. S., at 185. In Franklin, we 
+considered whether monetary damages are available as a 
+remedy for intentional violations of Title IX (and, by exten­
+sion, the other statutes we discussed). 503 U. S., at 76. We 
+answered yes, ibid., but “did not describe the scope of `appro­
+priate relief.' ” Barnes, 536 U. S., at 185. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+219 
+Opinion of the Court 
+Our later cases have flled in that gap, clarifying that our 
+consideration of whether a remedy qualifes as appropriate 
+relief must be informed by the way Spending Clause “stat­
+utes operate”: by “conditioning an offer of federal funding 
+on a promise by the recipient not to discriminate, in what 
+amounts essentially to a contract between the Government 
+and the recipient of funds.” Gebser v. Lago Vista Independ­
+ent School Dist., 524 U. S. 274, 286 (1998). Unlike ordinary 
+legislation, which “imposes congressional policy” on regu­
+lated parties “involuntarily,” Spending Clause legislation op­
+erates based on consent: “in return for federal funds, the 
+[recipients] agree to comply with federally imposed condi­
+tions.” Pennhurst, 451 U. S., at 16, 17. For that reason, 
+the “legitimacy of Congress' power” to enact Spending 
+Clause legislation rests not on its sovereign authority to 
+enact binding laws, but on “whether the [recipient] voluntar­
+ily and knowingly accepts the terms of th[at] `contract.' ” 
+Barnes, 536 U. S., at 186 (quoting Pennhurst, 451 U. S., 
+at 17). 
+“We have regularly applied th[is] contract-law analogy in 
+cases defning the scope of conduct for which funding recipi­
+ents may be held liable for money damages.” Barnes, 536 
+U. S., at 186. Recipients cannot “knowingly accept” the deal 
+with the Federal Government unless they “would clearly un­
+derstand . . . the obligations” that would come along with 
+doing so. Arlington Central School Dist. Bd. of Ed. v. Mur­
+phy, 548 U. S. 291, 296 (2006). We therefore construe the 
+reach of Spending Clause conditions with an eye toward “en­
+suring that the receiving entity of federal funds [had] notice 
+that it will be liable.” Gebser, 524 U. S., at 287 (inter­
+nal quotation marks omitted). “Accordingly, if Congress in­
+tends to impose a condition on the grant of federal moneys, 
+it must do so unambiguously.” Pennhurst, 451 U. S., at 17. 
+“The same analogy,” Barnes, 536 U. S., at 187, similarly 
+limits “the scope of available remedies” in actions brought to 
+Page Proof Pending Publication
+
+220 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+enforce Spending Clause statutes, Gebser, 524 U. S., at 287. 
+After all, when considering whether to accept federal funds, 
+a prospective recipient would surely wonder not only what 
+rules it must follow, but also what sort of penalties might be 
+on the table. See Barnes, 536 U. S., at 188. A particular 
+remedy is thus “appropriate relief” in a private Spending 
+Clause action “only if the funding recipient is on notice that, 
+by accepting federal funding, it exposes itself to liability of 
+that nature.” Id., at 187 (emphasis in original). Only then 
+can we be confdent that the recipient “exercise[d its] choice 
+knowingly, cognizant of the consequences of [its] participa­
+tion” in the federal program. Pennhurst, 451 U. S., at 17. 
+B 
+In order to decide whether emotional distress damages are 
+available under the Spending Clause statutes we consider 
+here, we therefore ask a simple question: Would a prospec­
+tive funding recipient, at the time it “engaged in the process 
+of deciding whether [to] accept” federal dollars, have been 
+aware that it would face such liability? Arlington, 548 
+U. S., at 296. If yes, then emotional distress damages are 
+available; if no, they are not. 
+Because the statutes at issue are silent as to available rem­
+edies, it is not obvious how to decide whether funding recipi­
+ents would have had the requisite “clear notice regarding the 
+liability at issue in this case.” Ibid. We confronted that 
+same dynamic in Barnes. There, we considered whether a 
+federal funding recipient would have known, when taking 
+the money, that it was agreeing to face punitive damages in 
+suits brought under those laws. We noted that the statu­
+tory text “contains no express remedies.” 536 U. S., at 187. 
+But we explained that, following the contract analogy set out 
+in our Spending Clause cases, a federal funding recipient 
+may be considered “on notice that it is subject not only to 
+those remedies explicitly provided in the relevant legislation, 
+but also to those remedies traditionally available in suits for 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+221 
+Opinion of the Court 
+breach of contract.” Ibid. We identifed two such reme­
+dies: compensatory damages and injunctions. By contrast, 
+we explained, punitive damages “are generally not available 
+for breach of contract.” Ibid. We thus concluded that 
+funding recipients covered by the statutes at issue “have not, 
+merely by accepting funds, implicitly consented to liability 
+for punitive damages.” Id., at 188. 
+Crucial for this case, we considered punitive damages to 
+be “generally not available for breach of contract,” see id., 
+at 187, despite the fact that such damages are hardly unheard 
+of in contract cases. Indeed, according to the treatises we 
+cited, punitive damages are recoverable in contract where 
+“the conduct constituting the breach is also a tort for which 
+punitive damages are recoverable.” Restatement (Second) 
+of Contracts § 355, p. 154 (1979); see also 3 E. Farnsworth, 
+Contracts § 12.8, pp. 192–201 (2d ed. 1998). That recognized 
+exception to the general rule, however, was not enough to 
+give funding recipients the requisite notice that they could 
+face such damages. 
+Under Barnes, then, we may presume that a funding recip­
+ient is aware that, for breaching its Spending Clause “con­
+tract” with the Federal Government, it will be subject to the 
+usual contract remedies in private suits. That is apparent 
+from the adverbs Barnes repeatedly used, requiring that a 
+remedy be “traditionally available,” “generally . . . avail­
+able,” or “normally available for contract actions.” 536 
+U. S., at 187–188. And it is confrmed by the Court's hold­
+ing: that punitive damages are unavailable in private actions 
+brought under these statutes even though such damages are 
+a familiar feature of contract law. 
+C 
+Under the framework just set out, the analysis here is 
+straightforward. It is hornbook law that “emotional dis­
+tress is generally not compensable in contract,” D. Lay-
+cock & R. Hasen, Modern American Remedies 216 (5th ed. 
+Page Proof Pending Publication
+
+222 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+2019), just as “punitive damages . . . are generally not avail­
+able for breach of contract,” Barnes, 536 U. S., at 187. See 
+11 W. Jaeger, Williston on Contracts § 1341, p. 214 (3d ed. 
+1968) (“Mental suffering caused by breach of contract, al­
+though it may be a real injury, is not generally allowed as 
+a basis for compensation in contractual actions.” (footnote 
+omitted)); E. Farnsworth, Contracts § 12.17, p. 894 (1982) (de­
+scribing rule of “generally denying recovery for emotional 
+disturbance, or `mental distress,' resulting from breach of 
+contract” as “frmly rooted in tradition”); J. Perillo, Cala­
+mari & Perillo on Contracts § 14.5, p. 495 (6th ed. 2009) (Cala­
+mari & Perillo) (“As a general rule, no damages will be 
+awarded for the mental distress or emotional trauma that 
+may be caused by a breach of contract.”); C. McCormick, Law 
+of Damages § 145, p. 592 (1935) (McCormick) (“It is often 
+stated as the `general rule' that, in actions for breach of con­
+tract, damages for mental suffering are not allowable.”). 
+Under Barnes, we therefore cannot treat federal funding re­
+cipients as having consented to be subject to damages for 
+emotional distress. It follows that such damages are not re­
+coverable under the Spending Clause statutes we consider 
+here. 
+In arguing for a different result, Cummings recognizes 
+that “contract law dictates `the scope of damages remedies.' ” 
+Brief for Petitioner 30. And she quotes the test set out in 
+Barnes: whether a certain remedy is “traditionally available 
+in suits for breach of contract.” Brief for Petitioner 31. 
+But Cummings then argues that, notwithstanding the above 
+authorities, “traditional contract remedies” in fact do “in­
+clude damages for emotional distress.” Ibid.; see Brief for 
+United States as Amicus Curiae 14–20 (making the same 
+argument); post, at 237–239 (Breyer, J., dissenting) (same). 
+That is because, Cummings explains, several contract trea­
+tises put forth the special rule that “recovery for emotional 
+disturbance” is allowed in a particular circumstance: where 
+“the contract or the breach is of such a kind that serious 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+223 
+Opinion of the Court 
+emotional disturbance was a particularly likely result.” 
+Brief for Petitioner 31 (quoting Restatement (Second) of 
+Contracts § 353). And, she contends, such a rule “aptly de­
+scribe[s the] intentional breach of [a] promise to refrain from 
+discrimination,” because discrimination frequently engen­
+ders mental anguish. Brief for Petitioner 31. This argu­
+ment suffers from two independently fatal faws. 
+First, Cummings subtly but crucially transforms the 
+contract-law analogy into a test that is inconsistent with both 
+Barnes and our larger Spending Clause jurisprudence. 
+Barnes, recall, instructs us to inquire whether a remedy is 
+“traditionally,” “generally,” or “normally available for con­
+tract actions.” 536 U. S., at 187–188. Cummings, however, 
+would look not only to those general rules, but also to 
+whether there is a “more fne-grained” or “more directly ap­
+plicable” rule of contract remedies that, although not gener­
+ally or normally applicable, “govern[s] in the specifc context” 
+or “particular setting[ ]” of the pertinent Spending Clause 
+provision. Brief for Petitioner 33–35; see also post, at 239. 
+In other words, Cummings would treat funding recipients as 
+on notice that they will face not only the usual remedies 
+available in contract actions, but also other unusual, even 
+“rare” remedies, Brief for Petitioner 34, if those remedies 
+would be recoverable “in suits for breaches of the type of 
+contractual commitments at issue,” id., at 35. 
+Neither petitioner nor the United States attempts to 
+ground this approach in Barnes, which, as discussed above, 
+undertook nothing of the sort. Indeed, had Barnes ana­
+lyzed the question as petitioner frames it, the decision would 
+have come out the opposite way. As noted, although the 
+general rule is that punitive damages are not available in 
+contract, they are undoubtedly recoverable in cases where 
+the breaching conduct is also “a tort for which punitive dam­
+ages are recoverable.” Restatement (Second) of Contracts 
+§ 355. Such conduct would presumably include “breaches of 
+the type of contractual commitments at issue here,” Brief for 
+Page Proof Pending Publication
+
+224 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+Petitioner 35–namely, the commitment not to discriminate. 
+After all, intentional discrimination is frequently a wanton, 
+reprehensible tort. Barnes itself involved “tortious con­
+duct,” 536 U. S., at 192 (Stevens, J., concurring in judgment), 
+that the jury had found deplorable enough to warrant $1.2 
+million in punitive damages, id., at 184 (opinion of the Court). 
+Yet Barnes necessarily concluded that the existence of this 
+on-point exception to the general rule against punitive dam­
+ages was insuffcient to put funding recipients on notice of 
+their exposure to that particular remedy. 
+Compare in this regard the Restatement's discussion of 
+emotional distress damages with its discussion of punitive 
+damages: 
+“Loss Due to Emotional Disturbance 
+“Recovery for emotional disturbance will be excluded 
+unless . . . the contract or the breach is of such a kind 
+that serious emotional disturbance was a particularly 
+likely result.” § 353 (emphasis added). 
+“Punitive Damages 
+“Punitive damages are not recoverable for a breach of 
+contract unless the conduct constituting the breach is 
+also a tort for which punitive damages are recoverable.” 
+§ 355 (emphasis added). 
+It did not matter to the Court in Barnes that the second 
+clause of section 355 “aptly describe[s] a funding recipient's 
+intentional breach of its promise to refrain from discrimina­
+tion.” Brief for Petitioner 31. Barnes did not even engage 
+in such an inquiry; it simply stopped at the word “unless.” 
+See 536 U. S., at 187–188. Neither Cummings nor the 
+United States adequately explains why we—bound by 
+Barnes—should do anything different here. Indeed, re­
+fected in the Restatement's similar treatment of emotional 
+distress and punitive damages is the fact that “the line be­
+tween these two kinds of damages is indistinct and hard to 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+225 
+Opinion of the Court 
+draw.” 11 J. Perillo, Corbin on Contracts § 59.1, p. 546 (rev. 
+11th ed. 2005) (Corbin); see also D. Dobbs, Law of Remedies 
+§ 12.4, p. 819 (1973) (Dobbs). 
+Beyond Barnes itself, petitioner's “more fne-grained” ap­
+proach, Brief for Petitioner 33, cannot be squared with our 
+contract analogy case law in general. As Cummings sees 
+things, “it makes no difference whether the governing con­
+tract rule here is an `exception,' ” id., at 34, because “the 
+governing rule is just that: the governing rule,” id., at 35; 
+see also post, at 239. But our cases do not treat suits under 
+Spending Clause legislation as literal “suits in contract,” Sos­
+samon v. Texas, 563 U. S. 277, 290 (2011), subjecting funding 
+recipients to whatever “governing rules” some general fed­
+eral law of contracts would supply. 
+Rather, as set out above, we employ the contract analogy 
+“only as a potential limitation on liability” compared to that 
+which “would exist under nonspending statutes.” Ibid. 
+We do so to ensure that funding recipients “exercise[d] their 
+choice” to take federal dollars “knowingly, cognizant of the 
+consequences of ” doing so. Pennhurst, 451 U. S., at 17. 
+Here, the statutes at issue say nothing about what those con­
+sequences will be. Nonetheless, consistent with Barnes, it 
+is fair to consider recipients aware that, if they violate their 
+promise to the Government, they will be subject to either 
+damages or a court order to perform. Those are the usual 
+forms of relief for breaching a legally enforceable commit­
+ment. No dive through the treatises, 50-state survey, or 
+speculative drawing of analogies is required to anticipate 
+their availability. 
+The approach offered by Cummings, by contrast, pushes 
+the notion of “offer and acceptance,” Barnes, 536 U. S., at 
+186, past its breaking point. It is one thing to say that fund­
+ing recipients will know the basic, general rules. It is quite 
+another to assume that they will know the contours of every 
+contract doctrine, no matter how idiosyncratic or excep­
+tional. Yet that is the sort of “clear notice” that Cummings 
+Page Proof Pending Publication
+
+226 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+necessarily suggests funding recipients would have regard­
+ing the availability of emotional distress damages when “en­
+gaged in the process of deciding whether” to accept federal 
+funds. Arlington, 548 U. S., at 296. Such a diluted con­
+ception of knowledge has no place in our Spending Clause 
+jurisprudence. 
+What is more, by essentially incorporating the law of con­
+tract remedies wholesale, Cummings's rendition of the anal­
+ogy “risks arrogating legislative power.” Hernández v. 
+Mesa, 589 U. S. –––, ––– (2020). Recall that Barnes author­
+ized the recovery of “remedies traditionally available in suits 
+for breach of contract” under Spending Clause statutes, like 
+those we consider here, that “mention[ ] no remedies.” 536 
+U. S., at 187. Barnes thus permitted federal courts to do 
+something we are usually loath to do: “fnd[ ] that a [certain] 
+remedy is implied by a provision that makes no reference to 
+that remedy,” Hernández, 589 U. S., at –––. But Barnes 
+also placed a clear limit on that authority, constraining courts 
+to imply only those remedies “that [are] normally available 
+for contract actions.” 536 U. S., at 188. In urging us to dis­
+regard that restriction, Cummings would have us treat stat­
+utory silence as a license to freely supply remedies we cannot 
+be sure Congress would have chosen to make available. 
+That would be an untenable result in any context, let alone 
+one in which our cases require “clear notice regarding the 
+liability at issue,” Arlington, 548 U. S., at 296. 
+Second, even if it were appropriate to treat funding recipi­
+ents as aware that they may be subject to “rare” contract-
+law rules that are “satisfed only in particular settings,” 
+Brief for Petitioner 34, funding recipients would still lack 
+the requisite notice that emotional distress damages are 
+available under the statutes at issue. That is because the 
+Restatement's formulation—that such damages are available 
+where “the contract or the breach is of such a kind that seri­
+ous emotional disturbance was a particularly likely result,” 
+see Restatement (Second) of Contracts § 353—does not 
+refect the consensus rule among American jurisdictions. 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+227 
+Opinion of the Court 
+Far from it. As one commentator concluded after “[s]ur­
+veying all of the cases dealing with emotional distress recov­
+ery in contract actions” over a decade after the Restate­
+ment's publication, “a majority rule does not exist” on the 
+question. D. Whaley, Paying for the Agony: The Recovery 
+of Emotional Distress Damages in Contract Actions, 26 Suf­
+folk U. L. Rev. 935, 946 (1992); see also J. Chmiel, Damages— 
+Recovery for Mental Suffering From Breach of Contract, 32 
+Notre Dame Law. 482 (1957) (noting “little uniformity in the 
+decided cases”); Corbin § 59.1, at 538, 540 (“Claims for dam­
+ages for mental pain and suffering have caused much confict 
+and difference of opinion,” and “the law cannot be said to be 
+entirely settled”); Dobbs § 12.4, at 819–820 (although a “group 
+of cases have tried to formulate a broader doctrine” akin to 
+the Restatement view, “th[e] principle is a broad and rela­
+tively undefned one,” and “it is not clear how far [it] is or will 
+be accepted by the courts”). The contrary view of the dissent, 
+see post, at 235–237, is more aspirational than descriptive. 
+To be sure, a number of States follow the Restatement 
+rule and award emotional distress damages “where the in­
+jury entails more than a pecuniary loss, and the duty violated 
+is closely associated with the feelings and emotions of the 
+injured party.” Chmiel, 32 Notre Dame Law., at 482. That 
+represents “the most liberal approach,” Whaley, 26 Suffolk 
+L. Rev., at 943, taken by a “strong minority” of courts, Cor­
+bin § 59.1, at 541; see also McCormick § 145, at 594–595. On 
+the opposite end of the spectrum, however, several States 
+squarely reject the Restatement, and altogether forbid re­
+covery of emotional distress damages even where the con­
+tract relates to nonpecuniary matters. See, e. g., Tompkins 
+v. Eckerd, Civ. No. 09–2369, 2012 WL 1110069, *4 (D SC, Apr. 
+3, 2012); Contreraz v. Michelotti-Sawyers, 271 Mont. 300, 
+309, 896 P. 2d 1118, 1123 (1995); Keltner v. Washington 
+County, 310 Ore. 499, 504–510, 800 P. 2d 752, 754–758 (1990). 
+Most States reject the Restatement exception in a more 
+nuanced way: by limiting the award of emotional distress 
+damages to a narrow and idiosyncratic group of cases, rather 
+Page Proof Pending Publication
+
+228 
+CUMMINGS v. PREMIER REHAB KELLER 
+Opinion of the Court 
+than making them available in general wherever a breach 
+would have been likely to infict emotional harm. Cala­
+mari & Perillo § 14.5, at 495–496. A good example is New 
+York, which refused to apply the Restatement rule, and de­
+nied emotional distress damages, where the defendant hospi­
+tal breached its contractual duty to return a newborn child 
+to his parents by failing to prevent his abduction. Johnson 
+v. Jamaica Hospital, 62 N. Y. 2d 523, 528–529, 467 N. E. 2d 
+502, 504 (1984); see also id., at 536–537, 467 N. E. 2d, at 509 
+(Meyer, J., dissenting). 
+These jurisdictions confne recovery for mental anguish 
+where nonpecuniary contracts are at issue in two main ways. 
+First, a number permit recovery only if the breach also quali­
+fes as “unusually evil,” with the precise terminology varying 
+from “reckless” and “willful” to “wanton” and “reprehen­
+sible.” 
+D. Hoffman & A. Radus, Instructing Juries on 
+Noneconomic Contract Damages, 81 Fordham L. Rev. 1221, 
+1227 (2012) (emphasis deleted); see Corbin § 59.1, at 546–547; 
+Chmiel, 32 Notre Dame Law., at 484–485; see, e. g., Giam­
+papa v. American Family Mut. Ins. Co., 64 P. 3d 230, 238– 
+239 (Colo. 2003). 
+Second, many States limit recovery for mental anguish to 
+only a narrow “class of contracts upon breach of which the 
+injured party may, if he so elect, bring an action sounding in 
+tort.” Smith v. Sanborn State Bank, 147 Iowa 640, 643, 126 
+N. W. 779, 780 (1910); Corbin § 59.1, at 538; see, e. g., Johnson, 
+62 N. Y. 2d, at 528, 467 N. E. 2d, at 504. Such cases most 
+prominently include those “against carriers, telegraph com­
+panies, and innkeepers—all of whom are bound by certain 
+duties that are independent of contract, but who usually also 
+have made a contract for the performance of the duty.” 
+Corbin § 59.1, at 538; Chmiel, 32 Notre Dame Law., at 488. 
+Others involve “contracts for the carriage or proper disposi­
+tion of dead bodies,” Restatement (Second) of Contracts 
+§ 353, Comment a, which similarly might be seen “as tort 
+cases quite apart from the contract, since one who negli­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 212 (2022) 
+229 
+Opinion of the Court 
+gently mishandles a body could be liable in tort . . . even if 
+there were no contract at all.” Dobbs § 12.4, at 819; see also 
+McCormick § 145, at 594–595, 597; see, e. g., Wright v. Beard­
+sley, 46 Wash. 16, 16–20, 89 P. 172, 172–174 (1907). 
+Many of these cases unsurprisingly mix contract, quasi-
+contract, and tort principles together. Dobbs, § 12.4, at 818, 
+n. 10 (“The carrier who insults his passenger is liable to him 
+in tort . . . but cases often speak of an implied term in the 
+contract as governing this point.”); Knoxville Traction Co. 
+v. Lane, 103 Tenn. 376, 386, 53 S. W. 557, 560 (1899) (“The 
+gravamen of this action is the defendant's breach of its con­
+tract of carriage, which includes . . . the duty to protect the 
+passenger from insult or injury.”); Chamberlain v. Chandler, 
+5 F. Cas. 413, 414 (No. 2,575) (CC Mass. 1823) (opinion of 
+Story, J.) (ship captain violated the carriage contract's “im­
+plied stipulation against general obscenity”).* As such, it 
+makes little sense to treat such cases as establishing or evin­
+cing a rule of contract law—a principle with which the 
+United States agrees, Brief for United States as Amicus Cu­
+riae 31, n. 5 (arguing that cases “based on tort principles” 
+are “not instructive” for purposes of the contract-law 
+analogy). 
+In the end, it is apparent that the closest our legal system 
+comes to a universal rule—or even a widely followed one— 
+regarding the availability of emotional distress damages in 
+*The dissent cites McCormick for the proposition that courts did not 
+“always” rely on “accompanying tortious conduct” when allowing recovery 
+of emotional distress damages in the innkeeper, telegraph, and burial 
+cases. Post, at 238–239 (quoting McCormick § 145, at 593–594). That 
+misses the point. As McCormick's next sentence explains, the award of 
+emotional distress damages in such cases was “made easier because usu­
+ally the action could have been brought as for a tort, in which event the 
+tradition against allowing damages for mental distress would be plainly 
+inapplicable.” Id., § 145, at 594. Put differently, the usual rule barring 
+recovery was not applicable in this idiosyncratic set of cases because, like 
+cases in which punitive damages were awarded, they were “based on con­
+tract in name only,” Dobbs §12.4, at 818. 
+
+230 
+CUMMINGS v. PREMIER REHAB KELLER 
+Kavanaugh, J., concurring 
+contract actions is “the conventional wisdom . . . that [such] 
+damages are for highly unusual contracts, which do not ft 
+into the core of contract law.” Hoffman, 81 Fordham L. 
+Rev., at 1230. As to which “highly unusual contracts” trig­
+ger the exceptional allowance of such damages, the only area 
+of agreement is that there is no agreement. There is thus 
+no basis in contract law to maintain that emotional distress 
+damages are “traditionally available in suits for breach of 
+contract,” Barnes, 536 U. S., at 187, and correspondingly no 
+ground, under our cases, to conclude that federal funding re­
+cipients have “clear notice,” Arlington, 548 U. S., at 296, that 
+they would face such a remedy in private actions brought to 
+enforce the statutes at issue. 
+*
+*
+* 
+For the foregoing reasons, we hold that emotional distress 
+damages are not recoverable under the Spending Clause 
+antidiscrimination statutes we consider here. The judg­
+ment of the Court of Appeals is affrmed. 
+It is so ordered. 
+Justice Kavanaugh, with whom Justice Gorsuch 
+joins, concurring. 
+In analyzing whether compensatory damages for emo­
+tional distress are available under the implied Title VI cause 
+of action, both the Court and the dissent ably employ the 
+contract-law analogy set forth by this Court's precedents. 
+See, e. g., Barnes v. Gorman, 536 U. S. 181, 186 (2002). The 
+dueling and persuasive opinions illustrate, however, that the 
+contract-law analogy is an imperfect way to determine the 
+remedies for this implied cause of action. 
+Instead of continuing to rely on that imperfect analogy, I 
+would reorient the inquiry to focus on a background inter­
+pretive principle rooted in the Constitution's separation of 
+powers. Congress, not this Court, creates new causes of ac­
+tion. See Alexander v. Sandoval, 532 U. S. 275, 286–287 
+(2001). 
+And with respect to existing implied causes of 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+231 
+Breyer, J., dissenting 
+action, Congress, not this Court, should extend those im­
+plied causes of action and expand available remedies. Cf. 
+Hernández v. Mesa, 589 U. S. –––, ––– (2020); see also Frank­
+lin v. Gwinnett County Public Schools, 503 U. S. 60, 77–78 
+(1992) (Scalia, J., concurring in judgment). In my view, that 
+background interpretive principle—more than contract-law 
+analysis—counsels against judicially authorizing compensa­
+tory damages for emotional distress in suits under the im­
+plied Title VI cause of action. 
+Justice Breyer, with whom Justice Sotomayor and 
+Justice Kagan join, dissenting. 
+Using its Spending Clause authority, Congress has enacted 
+four statutes that prohibit recipients of federal funds from 
+discriminating on the basis of certain protected characteris­
+tics, including (depending upon the statute) race, color, na­
+tional origin, sex, disability, or age. See Civil Rights Act of 
+1964, Title VI, 42 U. S. C. § 2000d; Education Amendments of 
+1972, Title IX, 20 U. S. C. § 1681; Rehabilitation Act of 1973, 
+§ 504, 29 U. S. C. § 794; Patient Protection and Affordable 
+Care Act (ACA), § 1557, 42 U. S. C. § 18116. We have held 
+that victims of intentional violations of these statutes may 
+bring lawsuits seeking to recover, among other relief, 
+compensatory damages. Franklin v. Gwinnett County 
+Public Schools, 503 U. S. 60, 76 (1992). Today, the Court 
+holds that the compensatory damages available under these 
+statutes cannot include compensation for emotional 
+suffering. 
+The Court has asked the right question: “[W]ould a pro­
+spective funding recipient, at the time it engaged in the proc­
+ess of deciding whether to accept federal dollars, have been 
+aware that it would face such liability?” Ante, at 220 (inter­
+nal quotation marks and alterations omitted). And it has 
+correctly observed that our precedents instruct us to answer 
+this question by drawing an analogy to contract law. But I 
+disagree with how the Court has applied that analogy. 
+Page Proof Pending Publication
+
+232 
+CUMMINGS v. PREMIER REHAB KELLER 
+Breyer, J., dissenting 
+The Court looks broadly at all contracts. It says that, 
+most of the time, damages for breach of contract did not 
+include compensation for emotional distress. Ante, at 221– 
+222. And it then holds that emotional distress damages are 
+not available under the Spending Clause statutes at issue 
+here. Ibid. But, in my view, contracts analogous to these 
+statutes did allow for recovery of emotional distress dam­
+ages. Emotional distress damages were traditionally avail­
+able when “the contract or the breach” was “of such a kind 
+that serious emotional disturbance was a particularly likely 
+result.” Restatement (Second) of Contracts § 353, p. 149 
+(1979). 
+The Spending Clause statutes before us prohibit inten­
+tional invidious discrimination. That kind of discrimination 
+is particularly likely to cause serious emotional disturbance. 
+Thus, applying our precedents' contract analogy, I would 
+hold that victims of intentional violations of these antidis­
+crimination statutes can recover compensatory damages for 
+emotional suffering. I respectfully dissent. 
+I 
+I begin with agreement. First, like the Court, I recognize 
+that “it is `beyond dispute that private individuals may sue 
+to enforce' the [four] antidiscrimination statutes we consider 
+here.” Ante, at 218 (quoting Barnes v. Gorman, 536 U. S. 
+181, 185 (2002)). Title VI (prohibiting race discrimination) 
+and Title IX (prohibiting sex discrimination) contain implied 
+rights of action that have been ratifed by Congress. Alex­
+ander v. Sandoval, 532 U. S. 275, 280 (2001). The Rehabili­
+tation Act (prohibiting disability discrimination) and the 
+ACA (prohibiting race, sex, disability, and age discrimi­
+nation) expressly incorporate the rights and remedies avail­
+able under Title VI. 29 U. S. C. § 794a(a)(2); 42 U. S. C. 
+§ 18116(a). We have treated these statutes as providing “co­
+extensive” remedies. Barnes, 536 U. S., at 185. Thus, the 
+Court's decision today will affect the remedies available 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+233 
+Breyer, J., dissenting 
+under all four of these statutes, impacting victims of race, 
+sex, disability, and age discrimination alike. 
+Second, like the Court, I also recognize that recipients of 
+federal funding are subject to a particular form of liability 
+only if they are “on notice” that, by accepting the funds, 
+they expose themselves to that form of liability. Id., at 187. 
+And a funding recipient is “generally on notice that it is sub­
+ject . . . to those remedies traditionally available in suits for 
+breach of contract.” Ibid. Thus, the basic question here is 
+whether damages for emotional suffering were “traditionally 
+available” as remedies “in suits for breach of contract.” 
+Ibid. 
+II 
+Unlike the Court, though, I believe the answer to that 
+basic question is yes. Damages for emotional suffering have 
+long been available as remedies for suits in breach of con­
+tract—at least where the breach was particularly likely to 
+cause suffering of that kind. 
+A general, overarching principle of contract remedies is 
+set forth in the Restatement (Second) of Contracts: “Con­
+tract damages are ordinarily based on the injured party's 
+expectation interest and are intended to give him the beneft 
+of his bargain by awarding him a sum of money that will, to 
+the extent possible, put him in as good a position as he would 
+have been in had the contract been performed.” § 347, Com­
+ment a, at 112; see also 3 E. Farnsworth, Contracts § 12.8, 
+p. 188 (2d ed. 1998) (Farnsworth) (“The basic principle for 
+the measurement of those damages is that of compensation 
+based on the injured party's expectation”); 3 S. Williston, 
+Law of Contracts § 1338, p. 2392 (1920) (Williston) (“[T]he 
+general purpose of the law is, and should be, to give compen­
+sation:—that is, to put the plaintiff in as good a position as 
+he would have been in had the defendant kept his contract”). 
+This simple principle helps explain why compensatory 
+damages are generally available as remedies and punitive 
+damages are not. By definition, compensatory damages 
+Page Proof Pending Publication
+
+234 
+CUMMINGS v. PREMIER REHAB KELLER 
+Breyer, J., dissenting 
+serve contract law's “general purpose,” namely, to “give com­
+pensation.” Ibid. But punitive damages go beyond “com­
+pensat[ing] the injured party for lost expectation” and in­
+stead “put [him] in a better position than had the contract 
+been performed.” 3 Farnsworth § 12.8, at 193. 
+The same general principle also helps to explain the many 
+cases in which damages for emotional suffering are not avail­
+able. Most contracts are commercial contracts entered for 
+pecuniary gain. Pecuniary remedies are therefore typically 
+suffcient to compensate the injured party for their expected 
+losses. See, e. g., C. McCormick, Law of Damages § 145, 
+p. 592 (1935) (McCormick) (“Most contracts which come be­
+fore the courts are commercial contracts. The pecuniary in­
+terest is dominant”); 1 J. Sutherland, Law of Damages 156 
+(1883) (Sutherland) (“In actions upon contract, the losses sus­
+tained do not, by reason of the nature of the transactions 
+which they involve, embrace, ordinarily, any other than pecu­
+niary elements”); Farnsworth § 12.17, at 894–895 (1982) 
+(“[T]he real basis of this rule is that [recovery for emotional 
+distress] is likely to result in disproportionate compensa­
+tion”); cf. Restatement (Second) of Contracts § 351(1), at 135 
+(“Damages are not recoverable for loss that the party in 
+breach did not have reason to foresee as a probable result of 
+the breach when the contract was made”). 
+Finally, and most importantly here, the same general rule 
+also helps to explain the cases in which contract law did 
+make available damages for emotional suffering. Contract 
+law treatises make clear that expected losses from the 
+breach of a contract entered for nonpecuniary purposes 
+might reasonably include nonpecuniary harms. So contract 
+law traditionally does award damages for emotional distress 
+“where other than pecuniary benefts [were] contracted for” 
+or where the breach “was particularly likely to result in seri­
+ous emotional disturbance.” 3 Williston § 1340, at 2396; Far­
+nsworth § 12.17, at 895; see also, e. g., Restatement (Second) 
+of Contracts § 353, at 149 (“Recovery for emotional disturb­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 596 U. S. 212 (2022) 
+235 
+Breyer, J., dissenting 
+ance” was allowed where “the contract or the breach is of 
+such a kind that serious emotional disturbance was a particu­
+larly likely result”); 1 Sutherland 157–158 (damages should 
+be “appropriate to the objects of the contract”); 1 T. Sedg­
+wick, Measure of Damages § 45, p. 61 (8th ed. 1891) (Sedg­
+wick) (“ `Where other than pecuniary benefts are contracted 
+for, other than pecuniary standards will be applied to the 
+ascertainment of damages fowing from the breach' ”). 
+Examples of contracts that gave rise to emotional distress 
+damages under this rule have included, among others, con­
+tracts for marriage, see, e. g., 1 Sutherland 156, and n. 4; con­
+tracts by common carriers, innkeepers, or places of public 
+resort or entertainment, see, e. g., McCormick § 145, at 593, 
+and nn. 48–50; contracts related to the handling of a body, 
+see, e. g., 1 Sedgwick § 45, at 62, and n. a; contracts for deliv­
+ery of a sensitive telegram message, see, e. g., id., at 62, and 
+n. b; and more. In these cases, emotional distress damages 
+are compensatory because they “ `make good the wrong 
+done.' ” Franklin, 503 U. S., at 66; see also Memphis Com­
+munity School Dist. v. Stachura, 477 U. S. 299, 307 (1986). 
+III 
+Does breach of a promise not to discriminate fall into 
+this category? I should think so. The statutes before us 
+seek to eradicate invidious discrimination. That purpose is 
+clearly nonpecuniary. And discrimination based on race, 
+color, national origin, sex, age, or disability is particularly 
+likely to cause serious emotional harm. Often, emotional in­
+jury is the primary (sometimes the only) harm caused by 
+discrimination, with pecuniary injury at most secondary. 
+Consider, for example, the plaintiff in Franklin—a high 
+school student who was repeatedly sexually assaulted by her 
+teacher. 503 U. S., at 63–64. Or the plaintiff in Tennessee 
+v. Lane, 541 U. S. 509 (2004), who used a wheelchair and, 
+because a building lacked wheelchair accessibility, was forced 
+to crawl up two fights of stairs. Id., at 513–514. Or the 
+
+236 
+CUMMINGS v. PREMIER REHAB KELLER 
+Breyer, J., dissenting 
+many historical examples of racial segregation in which 
+Black patrons were made to use separate facilities or serv­
+ices. Regardless of whether fnancial injuries were present 
+in these cases, the major (and foreseeable) harm was the 
+emotional distress caused by the indignity and humiliation 
+of discrimination itself. 
+As a Member of this Court noted in respect to the Civil 
+Rights Act of 1964, Congress' antidiscrimination laws seek 
+“the vindication of human dignity and not mere economics.” 
+Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 
+291 (1964) (Goldberg, J., concurring). Quoting the Senate 
+Commerce Committee, Justice Goldberg observed: 
+“ `Discrimination is not simply dollars and cents, ham­
+burgers and movies; it is the humiliation, frustration, 
+and embarrassment that a person must surely feel when 
+he is told that he is unacceptable as a member of the 
+public because of his race or color. It is equally the 
+inability to explain to a child that regardless of educa­
+tion, civility, courtesy, and morality he will be denied 
+the right to enjoy equal treatment, even though he be a 
+citizen of the United States and may well be called upon 
+to lay down his life to assure this Nation continues.' ” 
+Id., at 292 (quoting S. Rep. No. 872, 88th Cong., 2d Sess., 
+16 (1964)). 
+It is diffcult to believe that prospective funding recipients 
+would be unaware that intentional discrimination based on 
+race, sex, age, or disability is particularly likely to cause 
+emotional suffering. Nor do I believe they would be un­
+aware that, were an analogous contractual breach at issue, 
+they could be held legally liable for causing suffering of that 
+kind. The contract rule allowing emotional distress dam­
+ages under such circumstances is neither obscure nor unset­
+tled, as the Court claims. Ante, at 222–223, 225–227. To 
+the contrary, it is clearly laid out in the Restatement (Sec­
+ond) of Contracts: “Recovery for emotional disturbance will 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+237 
+Breyer, J., dissenting 
+be excluded unless the breach also caused bodily harm or the 
+contract or the breach is of such a kind that serious emo­
+tional disturbance was a particularly likely result.” § 353, 
+at 149 (emphasis added). And the Restatement's rule is well 
+supported by treatise writers, who have described the law 
+similarly. See, e. g., Farnsworth § 12.17, at 895; 1 Sedgwick 
+§ 45, at 62; 16 J. Murray & T. Murrary, Corbin on Contracts 
+§ AG–59.01, p. 855 (2017) (“Emotional damages arising from 
+racial or other forms of discrimination are clearly foresee­
+able. There should be no question about their recovery in 
+a contract action where such conduct is proven”). I would 
+therefore conclude that contract law is suffciently clear to 
+put prospective funding recipients on notice that intentional 
+discrimination can expose them to potential liability for emo­
+tional suffering. 
+IV 
+In concluding otherwise, the Court invokes our decision in 
+Barnes. In Barnes, we reaffrmed that funding recipients 
+could be held liable for compensatory damages because com­
+pensatory damages are a “for[m] of relief traditionally avail­
+able in suits for breach of contract.” 536 U. S., at 187. But, 
+we held, they are not liable for punitive damages because 
+punitive damages were “generally not available for breach of 
+contract.” Ibid. 
+The Court today reads Barnes to imply that prospective 
+funding recipients can only be expected to be aware of “basic, 
+general rules,” not exceptions or subsidiary rules that gov­
+ern specifc circumstances. Ante, at 225. How does the 
+Court derive that restrictive approach from Barnes, which 
+did not purport to announce such a limitation? Because, the 
+Court says, punitive damages were sometimes available in 
+suits for breach of contract where the breach was “ `also a 
+tort for which punitive damages are recoverable.' ” Ante, at 
+224 (quoting Restatement (Second) of Contracts § 355). The 
+Court assumes that Barnes must have refused to consider 
+any exceptions at all because otherwise it would have relied 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+238 
+CUMMINGS v. PREMIER REHAB KELLER 
+Breyer, J., dissenting 
+on this exception to hold that punitive damages were avail­
+able. Ante, at 223–224. The Court believes that damages 
+for emotional suffering are similar: It says they, too, are 
+available only under an exception to the general rule, and 
+that exception is too “ `fne-grained' ” to put federal funding 
+recipients on notice of their potential exposure to liability. 
+Ante, at 223 (quoting Brief for Petitioner 33). 
+The Court's comparison to punitive damages is, in my 
+view, unpersuasive. Punitive damages are not embraced by 
+Barnes' contract-law analogy because they do not serve con­
+tract law's central purpose of “compensat[ing] the injured 
+party”; instead, they “punish the party in breach.” Restate­
+ment (Second) of Contracts § 355, Comment a, at 154; see 
+also Barnes, 536 U. S., at 189 (distinguishing punitive dam­
+ages, which are unavailable, from compensatory damages, 
+which are available, because the former do not “ `make good 
+the wrong done' ”). Accordingly, the punitive damages ex­
+ception cited by the Court does not rely on contract-law prin­
+ciples at all, but rather, on tort law. The Restatement clari­
+fies that, when contract and tort claims may overlap, 
+contract law “does not preclude an award of punitive dam­
+ages . . . if such an award would be proper under the law of 
+torts.” Restatement (Second) of Contracts § 355, Comment 
+b, at 155 (emphasis added); see also id., at 156 (including Il­
+lustrations in which the “right to recover punitive damages 
+is governed by Restatement, Second, Torts § 908”). This 
+special feature makes the punitive damages exception an 
+inapt comparator for Barnes' contract-law analogy. 
+The same is not true of emotional distress damages. The 
+Restatement does not attribute the availability of emotional 
+distress damages to tort rather than contract law. See Re­
+statement (Second) of Contracts § 353, at 149; see also Mc­
+Cormick § 145, at 593–594 (“Sometimes reliance is placed 
+upon accompanying tortious conduct such as assault or defa­
+mation . . . but not always, nor do these elements seem essen­
+
+Cite as: 596 U. S. 212 (2022) 
+239 
+Breyer, J., dissenting 
+tial” (emphasis added)); e. g., Aaron v. Ward, 203 N. Y. 351, 
+354, 96 N. E. 736, 737 (1911) (“The action is for a breach of 
+the defendant's contract and not for a tortious expulsion”). 
+That makes sense because, unlike punitive damages, emo­
+tional distress damages can, and do, serve contract law's cen­
+tral purpose of compensating the injured party for their ex­
+pected losses, at least where the contract secured primarily 
+nonpecuniary benefts and contemplated primarily nonpecu­
+niary injuries. As I said above, in such cases, emotional dis­
+tress damages are a form of compensatory damages that 
+“ `make good the wrong done.' ” Franklin, 503 U. S., at 66; 
+see also Memphis Community School Dist., 477 U. S., at 
+306–307, and n. 9. 
+I have already explained above why I believe federal fund­
+ing recipients would be aware that intentional invidious dis­
+crimination is particularly likely to cause emotional suffer­
+ing. And I have also explained why, aware of general 
+principles of contract law, they would also be aware that 
+damages for emotional suffering are available for breaches 
+of contract “where other than pecuniary benefts [were] con­
+tracted for” or where the breach “was particularly likely to 
+result in serious emotional disturbance.” 3 Williston § 1340, 
+at 2396; Farnsworth § 12.17, at 895; supra, at 234–235. 
+Nothing in our opinion in Barnes requires us to ignore these 
+“ `directly applicable' ” contract rules in favor of the less ap­
+plicable, “general” rule on which the Court relies. Ante, at 
+223 (quoting Brief for Petitioner 35). Indeed, reliance on an 
+analogy only works when we compare things that are actu­
+ally analogous. Here, the rules that govern analogous 
+breaches of contract tell us that emotional distress damages 
+can be available for violations of statutes that prohibit inten­
+tional discrimination. 
+V 
+Finally, we might recall why we look to contract rules at 
+all. The contract-law analogy is a tool for answering the 
+Page Proof Pending Publication
+
+240 
+CUMMINGS v. PREMIER REHAB KELLER 
+Breyer, J., dissenting 
+ultimate question whether federal funding recipients can 
+appropriately be held liable for emotional suffering. Cf. 
+Barnes, 536 U. S., at 191 (Souter, J., concurring) (warning 
+about the limitations of the contract-law analogy). In an­
+swering that question, we must remain mindful of the need 
+to ensure a “sensible remedial scheme that best comports 
+with the statute.” Gebser v. Lago Vista Independent School 
+Dist., 524 U. S. 274, 284 (1998). The Court's holding today 
+will not help to achieve that result. 
+Instead, the Court's decision creates an anomaly. Other 
+antidiscrimination statutes, for which Congress has provided 
+an express cause of action, permit recovery of compensatory 
+damages for emotional distress. See 42 U. S. C. § 1981a(b)(3) 
+(expressly providing for compensatory damages, including 
+damages for “emotional pain, suffering,” and “mental an­
+guish” under Title VII of the Civil Rights Act); Memphis 
+Community School Dist., 477 U. S., at 307 (allowing recov­
+ery under Rev. Stat. § 1979, 42 U. S. C. § 1983, of compensa­
+tory damages for “ `personal humiliation, and mental anguish 
+and suffering' ”). Employees who suffer discrimination at 
+the hands of their employers can recover damages for emo­
+tional suffering, as can individuals who suffer discrimination 
+at the hands of state offcials. But, until Congress acts to 
+fx this inequity, the Court's decision today means that those 
+same remedies will be denied to students who suffer discrim­
+ination at the hands of their teachers, patients who suffer 
+discrimination at the hands of their doctors, and others. 
+It is diffcult to square the Court's holding with the basic 
+purposes that antidiscrimination laws seek to serve. One 
+such purpose, as I have said, is to vindicate “human dignity 
+and not mere economics.” Heart of Atlanta, 379 U. S., at 
+291 (Goldberg, J., concurring). But the Court's decision 
+today allows victims of discrimination to recover damages 
+only if they can prove that they have suffered economic 
+harm, even though the primary harm inficted by discrimina­
+tion is rarely economic. Indeed, victims of intentional dis­
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 212 (2022) 
+241 
+Breyer, J., dissenting 
+crimination may sometimes suffer profound emotional injury 
+without any attendant pecuniary harms. See, e. g., Frank­
+lin, 503 U. S., at 63–64, 76. The Court's decision today will 
+leave those victims with no remedy at all. 
+*
+*
+* 
+For all of these reasons, I respectfully dissent. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+PRELIMINARY PRINT 
+Volume 598 U. S. Part 2 
+Pages 594–616 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 18, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+594 
+OCTOBER TERM, 2022 
+Syllabus 
+AMGEN INC. et al. v. SANOFI et al. 
+certiorari to the united states court of appeals for 
+the federal circuit 
+No. 21–757. Argued March 27, 2023—Decided May 18, 2023 
+This case concerns patents covering antibodies engineered by scientists 
+that help reduce levels of low-density lipoprotein (LDL) cholesterol, 
+sometimes called bad cholesterol because it can lead to cardiovascular 
+disease, heart attacks, and strokes. To treat patients with high LDL 
+cholesterol, scientists explored how antibodies might be used to inhibit 
+PCSK9—a naturally occurring protein that binds to and degrades LDL 
+receptors responsible for extracting LDL cholesterol from the blood­
+stream. Two pharmaceutical companies—Amgen and Sanof—each de­
+veloped a PCSK9-inhibiting drug. In 2011, Amgen obtained a patent 
+for the antibody employed in its drug, and Sanof received one covering 
+the antibody used in its drug. Each patent describes the relevant anti­
+body by its unique amino acid sequence. The dispute in this case con­
+cerns two additional patents Amgen obtained in 2014 that relate back 
+to the company's 2011 patent. These later-issued patents purport to 
+claim for Amgen “the entire genus” of antibodies that (1) “bind to spe­
+cifc amino acid residues on PCSK9,” and (2) “block PCSK9 from binding 
+to [LDL receptors].” 872 F. 3d 1367, 1372. As part of its submission 
+to the patent offce, Amgen identifed the amino acid sequences of 26 
+antibodies that perform these two functions. Amgen then described 
+two methods—one Amgen called “the roadmap” and a second it called 
+“conservative substitution”—that scientists could use to make other an­
+tibodies that perform the binding-and-blocking functions described in 
+the claims. 
+After Amgen obtained the 2014 patents, it sued Sanof for infringe­
+ment. Sanof replied that it was not liable to Amgen for infringement 
+because Amgen's relevant claims were invalid under the Patent Act's 
+“enablement” requirement. That provision requires a patent applicant 
+to describe the invention “in such full, clear, concise, and exact terms as 
+to enable any person skilled in the art . . . to make and use the [inven­
+tion].” 35 U. S. C. § 112(a). Sanof characterized the methods Amgen 
+outlined for generating additional antibodies as amounting to little more 
+than a trial-and-error process of discovery, and thus contended that Am-
+gen's patents failed to meet the enablement requirement because they 
+sought to claim for Amgen's exclusive use potentially millions more anti­
+bodies than the company had taught persons skilled in the art to make. 
+Both the district court and the Federal Circuit sided with Sanof. 
+
+Page Proof Pending Publication
+595 
+Cite as: 598 U. S. 594 (2023) 
+Syllabus 
+Held: The courts below correctly concluded that Amgen failed “to enable 
+any person skilled in the art . . . to make and use the [invention]” as 
+defned by the relevant claims. Pp. 604–616. 
+(a) The patent “bargain” describes the exchange that takes place 
+when an inventor receives a limited term of “protection from competi­
+tive exploitation” in exchange for bringing “new designs and technolo­
+gies into the public domain through disclosure” for the beneft of all. 
+Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150–151. 
+From the Patent Act's beginnings, Congress has sought to ensure the 
+beneft of this bargain for the public by requiring the patent applicant 
+to deposit a “specifcation . . . so particular . . . as not only to distinguish 
+the invention or discovery from other things before known and used, 
+but also to enable a workman or other person skilled in the art or manu­
+facture . . . to make, construct, or use the same.” 1 Stat. 110. Over 
+time, Congress has left this “enablement” obligation largely intact. 
+This Court has addressed the enablement requirement many times, 
+and its decisions in O'Reilly v. Morse, 15 How. 62, The Incandescent 
+Lamp Patent, 159 U. S. 465, and Holland Furniture Co. v. Perkins Glue 
+Co., 277 U. S. 245, reinforce the simple statutory command: If a patent 
+claims an entire class of processes, machines, manufactures, or composi­
+tions of matter, the patent's specifcation must enable a person skilled 
+in the art to make and use the entire class. In Morse, for example, the 
+Court held that one of the claims in Morse's patent for a telegraphic 
+system was “too broad, and not warranted by law.” 15 How., at 113. 
+The problem was that the claim covered all means of achieving tele­
+graphic communication, yet Morse's specifcation did not describe how 
+to make or use them all. See id., at 113–117. In Incandescent Lamp, 
+inventors of an “electric lamp” with an “incandescing conductor” made 
+of “carbonized paper” claimed that a lamp created by Thomas Edison 
+infringed their patent because it used bamboo as a conductor. The 
+Court sided with Edison because the rival inventors, rather than confn­
+ing their claim to carbonized paper, “made a broad claim for every f­
+brous and textile material.” 159 U. S., at 472. That broad claim 
+“might” have been permissible, the Court allowed, if the inventors had 
+disclosed “a quality common” to fbrous and textile substances that made 
+them “peculiarly” adapted to incandescent lighting, but they did not. 
+Ibid. Finally, in Holland Furniture, a company that had developed a 
+starch glue that was similar enough to animal glue to be used for wood 
+veneering included a claim in its patent covering all “starch glue which, 
+[when] combined with about three parts or less . . . of water, will have 
+substantially the same properties as animal glue.” 277 U. S., at 251. 
+The specifcation described the key input—the “starch ingredient”—in 
+terms of its “use or function” rather than its “physical characteristics or 
+chemical properties.” Id., at 256. The problem, as the Court put it, 
+
+596 
+AMGEN INC. v. SANOFI 
+Syllabus 
+was that “[o]ne attempting to use or avoid the use of [the] discovery as 
+so claimed and described functionally could do so only after elaborate 
+experimentation” with different starches. Id., at 257. 
+All this is not to say a specifcation always must describe with particu­
+larity how to make and use every single embodiment within a claimed 
+class. It may suffce to give an example if the specifcation also dis­
+closes “some general quality . . . running through” the class that gives 
+it “a peculiar ftness for the particular purpose.” Incandescent Lamp, 
+159 U. S., at 475. Nor is a specifcation necessarily inadequate just be­
+cause it leaves the skilled artist to engage in some measure of adapta­
+tion or testing. See, e. g., Wood v. Underhill, 5 How. 1, 4–5. A specif­
+cation may call for a reasonable amount of experimentation to make and 
+use a claimed invention, and reasonableness in any case will depend 
+on the nature of the invention and the underlying art. See Minerals 
+Separation, Ltd. v. Hyde, 242 U. S. 261, 270–271. Pp. 604–612. 
+(b) Turning to the patent claims at issue in this case, Amgen's claims 
+sweep much broader than the 26 exemplary antibodies it identifes by 
+their amino acid sequences. Amgen has failed to enable all that it has 
+claimed, even allowing for a reasonable degree of experimentation. 
+Amgen's claims bear more than a passing resemblance to the broadest 
+claims in Morse, Incandescent Lamp, and Holland Furniture. While 
+Amgen seeks to monopolize an entire class of things defned by their 
+function—every antibody that both binds to particular areas of the 
+sweet spot of PCSK9 and blocks PCSK9 from binding to LDL recep­
+tors—the record refects that this class of antibodies does not include 
+just the 26 that Amgen has described by their amino acid sequences, 
+but a vast number of additional antibodies that it has not. 
+Amgen insists that its claims are nevertheless enabled because scien­
+tists can make and use every functional antibody if they simply follow 
+the “roadmap” or “conservative substitution.” These two approaches, 
+however, amount to little more than two research assignments. The 
+“roadmap” merely describes step-by-step Amgen's own trial-and-error 
+method for fnding functional antibodies. Not much different, “conserv­
+ative substitution” requires scientists to make substitutions to the amino 
+acid sequences of antibodies known to work and then test the resulting 
+antibodies to see if they do too. 
+Amgen's alternative arguments lack merit. Amgen first suggests 
+that the Federal Circuit erred by confating the question whether an 
+invention is enabled with the question how long may it take a person 
+skilled in the art to make every embodiment within a broad claim. But 
+the Federal Circuit made clear that it was not treating as dispositive 
+the cumulative time and effort required to make the entire class of anti­
+bodies. Amgen next argues that the Patent Act supplies a single, uni­
+Page Proof Pending Publication
+
+597 
+Cite as: 598 U. S. 594 (2023) 
+Syllabus 
+versal enablement standard, while the Federal Circuit applied a higher 
+standard to Amgen's claims that encompass an entire genus of embodi­
+ments defned by their function. The Court agrees in principle that 
+there is one statutory enablement standard, but the Federal Circuit's 
+treatment in this case is entirely consistent with Congress's directive 
+and this Court's precedents. Finally, while Amgen warns that a ruling 
+against it risks destroying the incentives that lead to breakthrough in­
+ventions, since 1790 Congress has included an enablement mandate as 
+one feature among many designed to achieve the balance it wishes to 
+strike between incentivizing inventors and ensuring the public receives 
+the full beneft of their innovations. In this case, the Court's duty is to 
+enforce the statutory enablement requirement according to its terms. 
+Pp. 612–616. 
+987 F. 3d 1080, affrmed. 
+Gorsuch, J., delivered the opinion for a unanimous Court. 
+Jeffrey A. Lamken argued the cause for petitioners. 
+With him on the briefs were Michael G. Pattillo, Jr., Sarah 
+J. Newman, Jonathan P. Graham, Stuart L. Watt, Wendy 
+A. Whiteford, Emily C. Johnson, Keith R. Hummel, Andrei 
+Harasymiak, and Sarah C. Columbia. 
+Paul D. Clement argued the cause for respondents. With 
+him on the brief were C. Harker Rhodes IV, David K. Barr, 
+George W. Hicks, Jr., Nathan S. Mammen, Matthew M. Wolf, 
+Daniel L. Reisner, Deborah Fishman, and Victoria L. 
+Reines. 
+Colleen E. Roh Sinzdak argued the cause for the United 
+States as amicus curiae urging affrmance. With her on the 
+brief were Solicitor General Prelogar, Principal Deputy 
+Assistant Attorney General Boynton, Deputy Solicitor Gen­
+eral Stewart, Daniel Tenny, Brian J. Springer, Thomas W. 
+Krause, Farheena Y. Rasheed, Amy J. Nelson, and Monica 
+B. Lateef.* 
+*Briefs of amici curiae urging reversal were fled for AbbVie Inc. by 
+Jonathan S. Massey; for the Alliance of U. S. Startups and Inventors for 
+Jobs et al. by Robert P. Taylor; for the Chemistry and Law Division of 
+the American Chemical Society by James C. Carver, Justin J. Hasford, 
+Matthew J. Hlinka, and Kendrew H. Colton; for Diversifed Researchers 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+598 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+Justice Gorsuch delivered the opinion of the Court. 
+The development of antibody drugs has yielded life-
+changing therapies. Individuals across the world now rely 
+on antibody drugs to treat conditions ranging from Crohn's 
+disease to cancer. This case concerns patents covering anti­
+bodies that help reduce levels of low-density lipoprotein cho­
+lesterol, sometimes called LDL cholesterol (for the obvious 
+reason) or bad cholesterol (because it can lead to cardiovas­
+cular disease, heart attacks, and strokes). 
+and Innovators by Jeffrey P. Kushan, Joshua J. Fougere, Matthew Maho­
+ney, and Steven J. Horowitz; for the Fynder Group, Inc., by Matthew J. 
+Dowd; for GSK plc by John M. Desmarais and Todd L. Krause; for Instil 
+Bio, Inc., by John R. Labbe; for the Intellectual Property Law Association 
+of Chicago by Charles W. Shifey, Robert H. Resis, John M. Augustyn, and 
+Tiffany Gehrke; for Intellectual Property Professors by Mark A. Lemley, 
+pro se; for the National Association of Patent Practitioners, Inc., by 
+Xhavin Sinha and Louis J. Hoffman; for the New York Intellectual Prop­
+erty Law Association by Melvin C. Garner, Robert M. Isackson, Robert 
+J. Rando, and Charles E. Miller; and for REGENXBIO Inc. et al. by 
+William G. Jenks. 
+Briefs of amici curiae urging affrmance were fled for the American 
+Intellectual Property Law Association by James D. Crowne; for Arnold 
+Ventures et al. by Lauren A. Degnan; for the Association for Accessible 
+Medicines by Matthew S. Hellman and Adam G. Unikowsky; for Eli Lilly 
+and Co., et al. by Katherine A. Helm, Michael H. McGinley, and Duane 
+C. Marks; for Fresenius Kabi USA, LLC, by Neil Lloyd; for Genentech, 
+Inc., et al. by Melanie L. Bostwick and Karen Boyd; for Intellectual Prop­
+erty Law Professors et al. by Edgar H. Haug; for Law Professors by 
+Jeremy P. Oczek and Joshua D. Sarnoff, pro se; for Pfzer Inc. by Dimi­
+trios T. Drivas, John P. Scheibeler, and Amit H. Thakore; for the Public 
+Interest Patent Law Institute by Nina Srejovic and Alex Moss; for Small 
+and Medium Biotechnology Companies by Mark A. Perry, Zachary D. 
+Tripp, and Robert B. Niles-Weed; for Unifed Patents, LLC, by Lisa M. 
+Ferri, Richard J. McCormick, Andrew J. Pincus, and Jonathan Stroud; 
+for Viatris Inc. by Steffen N. Johnson and Richard Torczon; for Robin 
+Feldman by Gideon A. Schor and Ms. Feldman, pro se; and for Gregory 
+Paul Winter et al. by Sophie F. Wang and Eric J. Marandett. 
+Briefs of amici curiae were fled for the High Tech Inventors Alliance 
+et al. by John D. Vandenberg and Sarah E. Jelsema; and for the Intellec­
+tual Property Owners Association by Vanessa Yen and Evan Diamond. 
+
+599 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+The case comes to us this way. Several years ago, peti­
+tioners (Amgen) obtained two patents. Together, these pat­
+ents claim a monopoly over all antibodies that (1) bind to 
+specifc amino acids on a naturally occurring protein known 
+as PCSK9, and (2) block PCSK9 from impairing the body's 
+mechanism for removing LDL cholesterol from the blood­
+stream. Soon after receiving these patents, Amgen sued re­
+spondents (Sanof) for infringement. In response, Sanof ar­
+gued that the patents were invalid under § 112 of the Patent 
+Act. That provision requires a patent applicant to describe 
+its invention “in such full, clear, concise, and exact terms as 
+to enable any person skilled in the art . . . to make and use 
+the [invention].” 35 U. S. C. § 112(a). Sanof contended that 
+Amgen's patents failed to meet this standard because they 
+sought to claim for Amgen's exclusive use potentially mil­
+lions more antibodies than the company had taught scientists 
+to make. In the end, both the district court and Federal 
+Circuit sided with Sanof. The question we face is whether 
+to disturb their judgment. 
+I 
+A 
+The immune system produces antibodies as a defense to 
+foreign agents called antigens. When a particular antigen— 
+a virus, for example—enters the body, the immune system 
+generates antibodies to attack it. In a successful attack, the 
+antibodies target and bind to the antigen, stopping it from 
+causing harm to the body. See Brief for Sir Gregory Paul 
+Winter et al. as Amici Curiae 8 (Winter Brief); M. Lemley & 
+J. Sherkow, The Antibody Patent Paradox, 132 Yale L. J. 994, 
+1001–1002 (2023). 
+Antibodies are incredibly diverse. Some scientists esti­
+mate that there may be as many unique antibodies as there 
+are stars in the galaxy. See id., at 1003; see also B. Briney, 
+A. Inderbitzin, C. Joyce, & D. Burton, Commonality Despite 
+Exceptional Diversity in the Baseline Human Antibody Rep­
+ertoire, 566 Nature 393, 397 (No. 7744, Feb. 2019) (estimating 
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+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+that the immune system could potentially generate up to a 
+quintillion unique antibodies). This diversity shows up in 
+both structure and function. 
+Start with structure. “When scientists refer to an anti­
+body's `structure,' ” they may have in mind “several related 
+concepts,” each of which describes “what an antibody is.” 
+Winter Brief 10. Antibodies are made up of amino acids, 
+and scientists commonly identify a particular antibody ac­
+cording to its specifc sequence of amino acids—what they 
+call an antibody's “ `primary structure.' ” Id., at 9–10. But 
+antibodies are not just linear chains of amino acids. As the 
+atoms of the amino acids interact with each other, they cre­
+ate folds that result in complex three-dimensional shapes. 
+Ibid. Scientists refer to an antibody's intricate topography 
+as its “tertiary structure.” Id., at 10. 
+An antibody's structure does much to dictate its function— 
+its ability to bind to an antigen and, in some instances, to 
+block other molecules in the body from doing the same. 
+“For an antibody to bind to an antigen, the two surfaces have 
+to ft together and contact each other at multiple points.” 
+Id., at 11. But just because an antibody can bind to an anti­
+gen does not mean that it can also block. To bind and block, 
+the antibody must establish a suffciently broad, strong, and 
+stable bond to the antigen. See ibid. Different antibodies 
+have different binding and blocking capacities based on the 
+amino acids that compose them and their three-dimensional 
+shapes. See id., at 11–12. 
+Despite recent advances, aspects of antibody science re­
+main unpredictable. For example, scientists understand 
+that changing even one amino acid in the sequence can alter 
+an antibody's structure and function. See id., at 14. But 
+scientists cannot always accurately predict exactly how trad­
+ing one amino acid for another will affect an antibody's struc­
+ture and function. Ibid. As Amgen's expert testifed at 
+trial: “ `[T]he way in which you get from sequence to that 
+three-dimensional structure isn't fully understood to­
+
+601 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+day. It's going to get a Nobel Prize for somebody at some 
+point, but translating that sequence into a known three-
+dimensional structure is still not possible.' ” Id., at 14–15. 
+B 
+While the immune system naturally produces an army of 
+antibodies to protect us from various harms, scientists are 
+now able to engineer antibodies to assist in treating diseases. 
+Some of these lab-made antibodies target not foreign agents 
+but the body's own proteins, receptors, and ligands. “While 
+naturally occurring in our bodies, these [proteins, receptors, 
+and ligands] can also be involved in infammatory disorders, 
+uncontrolled cell growth, or other biological pathways that 
+may be associated with disease.” Id., at 8. 
+One part of this effort has focused on the creation of anti­
+bodies to treat patients with high LDL cholesterol. A silent 
+killer, LDL cholesterol can contribute to the formation of 
+plaque in the arteries that may lead to cardiovascular dis­
+ease, heart attacks, and strokes. For many people with high 
+LDL cholesterol, drugs called statins offer an effective treat­
+ment. For others, statins do not work well or come with 
+unwelcome side effects. In those cases, a relatively new 
+antibody-based treatment known as a PCSK9 inhibitor may 
+be appropriate. See Amgen Inc. v. Sanofi, 872 F. 3d 1367, 
+1371 (CA Fed. 2017). 
+PCSK9 is a naturally occurring protein that binds to and 
+degrades LDL receptors. That can pose a problem because 
+the body produces LDL receptors to perform the benef­
+cial function of extracting LDL cholesterol from the blood­
+stream. See ibid. Scientists have understood this much 
+for some time. But it wasn't until fairly recently that they 
+began exploring how antibodies might be used to inhibit 
+PCSK9 from binding to and degrading LDL receptors as a 
+way to treat patients with high LDL cholesterol. 
+In the mid-2000s, a number of pharmaceutical companies 
+began looking into the possibility of making antibodies to 
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+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+target PCSK9. See Brief for Respondents 7; Brief for Ar­
+nold Ventures et al. as Amici Curiae 17–20. More precisely, 
+they sought to create antibodies that could bind to a particu­
+lar region of PCSK9 called the “sweet spot.” See Brief for 
+Petitioners 10–11. The sweet spot is a sequence of 15 amino 
+acids out of PCSK9's 692 total amino acids. Id., at 11. By 
+binding to the sweet spot, scientists found, an antibody could 
+prevent PCSK9 from binding to and degrading LDL recep­
+tors. See id., at 10–11; Amgen, 872 F. 3d, at 1371. 
+Eventually, Amgen developed a PCSK9-inhibiting drug 
+that it marketed under the name Repatha, and Sanofi 
+produced one it labeled Praluent. Each drug employs a dis­
+tinct antibody with its own unique amino acid sequence. 
+See id., at 1371–1372; Brief for Respondents 8–10. In 2011, 
+Amgen obtained a patent for the antibody employed in Repa­
+tha, and Sanof received one covering the antibody used in 
+Praluent. See id., at 8, 9. Each patent describes the rele­
+vant antibody by its amino acid sequence. See ibid. Nei­
+ther of these patents is at issue in this case. 
+Instead, our dispute focuses on two additional patents 
+Amgen obtained in 2014 that relate back to the company's 
+2011 patent. See U. S. Patent No. 8,829,165 (Sept. 9, 2014); 
+U. S. Patent No. 8,859,741 (Oct. 14, 2014). We refer to them 
+as the '165 and '741 patents. In particular, this case re­
+volves around claims 19 and 29 of the '165 patent and claim 
+7 of the '741 patent. See 987 F. 3d 1080, 1082 (CA Fed. 
+2021). In these claims, Amgen did not seek protection for 
+any particular antibody described by amino acid sequence. 
+Instead, Amgen purported to claim for itself “the entire 
+genus” of antibodies that (1) “bind to specifc amino acid resi­
+dues on PCSK9,” and (2) “block PCSK9 from binding to 
+[LDL receptors].” Amgen, 872 F. 3d, at 1372. 
+As part of its submission to the patent offce, Amgen iden­
+tifed the amino acid sequences of 26 antibodies that perform 
+these two functions, and it depicted the three-dimensional 
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+
+603 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+structures of two of these 26 antibodies. 987 F. 3d, at 1083. 
+But beyond that, Amgen only offered scientists two methods 
+to make other antibodies that perform the binding and block­
+ing functions it described. The frst method is what Amgen 
+calls the “roadmap.” Brief for Petitioners 13. At a high 
+level, the roadmap directs scientists to: (1) generate a range 
+of antibodies in the lab; (2) test those antibodies to determine 
+whether any bind to PCSK9; (3) test those antibodies that 
+bind to PCSK9 to determine whether any bind to the sweet 
+spot as described in the claims; and (4) test those antibodies 
+that bind to the sweet spot as described in the claims to 
+determine whether any block PCSK9 from binding to LDL 
+receptors. See id., at 13–14. The second method is what 
+Amgen calls “conservative substitution.” Id., at 14, 17. 
+This technique requires scientists to: (1) start with an anti­
+body known to perform the described functions; (2) replace 
+select amino acids in the antibody with other amino acids 
+known to have similar properties; and (3) test the resulting 
+antibody to see if it also performs the described functions. 
+See id., at 14–15. 
+C 
+Soon after receiving the '165 and '741 patents, Amgen sued 
+Sanof for infringing them. Sanof replied that it was not 
+liable to Amgen because the relevant claims were invalid as 
+a matter of law. Invalid, Sanof said, because Amgen had 
+not enabled a person skilled in the art to make and use all 
+of the antibodies that perform the two functions Amgen de­
+scribed in its claims. See 987 F. 3d, at 1083–1085. While 
+Amgen had identifed the amino acid sequences of 26 antibod­
+ies that bind to PCSK9 and block it from binding to LDL 
+receptors, Sanof observed that Amgen's claims cover po­
+tentially millions more undisclosed antibodies that perform 
+these same functions. And, Sanof argued, neither of the 
+two methods Amgen had outlined for generating additional 
+antibodies with the same functions enable a person skilled in 
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+
+604 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+the art to do so reliably. Instead, Sanof submitted, those 
+methods require scientists to engage in little more than a 
+trial-and-error process of discovery. See id., at 1085. 
+After lengthy proceedings, the district court granted Sa­
+nof judgment as a matter of law, concluding that the claims 
+at issue “are not enabled.” 2019 WL 4058927, *13 (Del., 
+Aug. 28, 2019). The Federal Circuit affrmed. 987 F. 3d, 
+at 1088. It determined that “no reasonable factfnder could 
+conclude” that Amgen had provided “adequate guidance” to 
+make and use the claimed antibodies “beyond the narrow 
+scope of the [26] working examples” it had identifed by their 
+amino acid sequences. Ibid. In response to Amgen's peti­
+tion for certiorari, we agreed to take up the case. 598 
+U. S. ––– (2022). 
+II 
+The Constitution vests Congress with the power to “pro­
+mote the Progress of Science and useful Arts, by securing 
+for limited Times to Authors and Inventors the exclusive 
+Right to their respective Writings and Discoveries.” Art. 
+I, § 8, cl. 8. Right there in the text, one fnds the outline 
+of what this Court has called the patent “bargain.” Bonito 
+Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150 
+(1989). In exchange for bringing “new designs and technol­
+ogies into the public domain through disclosure,” so they 
+may beneft all, an inventor receives a limited term of “pro­
+tection from competitive exploitation.” Id., at 151; see also 
+The Federalist No. 43, p. 272 (C. Rossiter ed. 1961) (J. Madi­
+son) (explaining that in such cases “[t]he public good fully 
+coincides . . . with the claims of individuals”). 
+Congress has exercised this authority from the start. 
+The Patent Act of 1790 promised up to a 14-year monopoly 
+to any applicant who “invented or discovered any useful art, 
+manufacture, . . . or device, or any improvement therein not 
+before known or used.” Act of Apr. 10, 1790, § 1, 1 Stat. 
+110. Refecting the quid-pro-quo premise of patent law, the 
+statute required the applicant to deposit with the Secretary 
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+605 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+of State a “specifcation . . . so particular . . . as not only to 
+distinguish the invention or discovery from other things be­
+fore known and used, but also to enable a workman or other 
+person skilled in the art or manufacture . . . to make, con­
+struct, or use the same.” § 2, ibid. The statute made clear 
+that this disclosure would ensure “the public may have the 
+full beneft [of the invention or discovery], after the expira­
+tion of the patent term.” Ibid. 
+Even as Congress has revised the patent laws over time, 
+it has left this “enablement” obligation largely intact. See 
+35 U. S. C. §§ 111, 112. Section 111 of the current Patent 
+Act provides that a patent application “shall include . . . a 
+specifcation as prescribed by section 112.” § 111(a)(2)(A). 
+Section 112, in turn, requires a specifcation to include “a 
+written description of the invention, and of the manner and 
+process of making and using it, in such full, clear, concise, 
+and exact terms as to enable any person skilled in the art . . . 
+to make and use the same.” § 112(a). So today, just as in 
+1790, the law secures for the public its beneft of the patent 
+bargain by ensuring that, “upon the expiration of [the pat­
+ent], the knowledge of the invention [i]nures to the people, 
+who are thus enabled without restriction to practice it.” 
+United States v. Dubilier Condenser Corp., 289 U. S. 178, 
+187 (1933); see also Grant v. Raymond, 6 Pet. 218, 247 (1832) 
+(Marshall, C. J.) (“This is necessary in order to give the pub­
+lic, after the privilege shall expire, the advantage for which 
+the privilege is allowed, and is the foundation of the power 
+to issue a patent”); Whittemore v. Cutter, 29 F. Cas. 1120, 
+1122 (No. 17,600) (CC Mass. 1813) (Story, J.) (“If therefore 
+[the disclosure] be so obscure, loose, and imperfect, that this 
+cannot be done, it is defrauding the public of all the consider­
+ation, upon which the monopoly is granted”). 
+This Court has addressed the enablement requirement on 
+many prior occasions. See, e. g., Wood v. Underhill, 5 How. 
+1 (1846); O'Reilly v. Morse, 15 How. 62 (1854); The Incandes­
+cent Lamp Patent, 159 U. S. 465 (1895); Minerals Separa­
+
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+606 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+tion, Ltd. v. Hyde, 242 U. S. 261 (1916); Holland Furniture 
+Co. v. Perkins Glue Co., 277 U. S. 245 (1928). While the 
+technologies in these older cases may seem a world away 
+from the antibody treatments of today, the decisions are no 
+less instructive for it. 
+Begin with Morse. While crossing the Atlantic Ocean in 
+1832 aboard a ship named Sully, Samuel Morse found himself 
+in conversation with other passengers about “experiments 
+and discoveries” around electromagnetism. 15 How., at 68. 
+“In the course of this discussion, it occurred to [Morse] that, 
+by means of electricity, signs representing fgures, letters, or 
+words, might be legibly written down at any distance.” Id., 
+at 69. So clear was the idea in Morse's mind that, “[b]efore 
+he landed in the United States, he had . . . drawn out in his 
+sketch book . . . the form of an instrument for an electro­
+magnetic telegraph.” Ibid. 
+Immediately upon his arrival in New York, Morse showed 
+his brothers his sketches. See id., at 69–70. He spent the 
+next few years refning his invention. See id., at 70–76. 
+The “great diffculty” he faced was that “the galvanic cur­
+rent, however strong in the beginning, became gradually 
+weaker as it advanced on the wire[,] and was not strong 
+enough to produce a mechanical effect, after a certain dis­
+tance.” Id., at 107. By 1837, Morse had a solution: “com­
+bining two or more electric or galvanic circuits, with in­
+dependent batteries for the purpose of overcoming the 
+diminished force of electro-magnetism in long circuits.” Id., 
+at 109. Morse demonstrated his telegraph the following 
+year at the Franklin Institute in Philadelphia, and he dis­
+played it soon after in Congress. See id., at 76. He re­
+ceived a patent in 1840, which reissued in 1848. See id., 
+at 81–83. 
+The litigation that brought Morse before this Court con­
+cerned a telegraphic system that Henry O'Reilly had in­
+stalled between Louisville and Nashville. See id., at 65. 
+Morse sued O'Reilly for infringement, alleging that O'Reil­
+
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+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+ly's system was “identical with” Morse's own. Id., at 66. 
+O'Reilly mounted a number of defenses, including that Mor­
+se's patent was void because it lacked an adequate specifca­
+tion. See id., at 99–101, 112. 
+Morse's patent included eight claims, and this Court had 
+no trouble upholding seven of them—those limited to the 
+telegraphic structures and systems he had designed. See 
+id., at 85–86, 112, 117. But the Court paused on the eighth. 
+That claim covered “the essence” of the invention, which 
+Morse described as “the use of the motive power of the elec­
+tric or galvanic current . . . however developed for marking 
+or printing intelligible characters, signs, or letters, at any 
+distances.” Id., at 112 (internal quotation marks omitted). 
+Leaving no doubt about this claim's scope, Morse stated 
+plainly: “ `I do not propose to limit myself to the specifc ma­
+chinery or parts of machinery described in the foregoing 
+specifcation and claims.' ” Ibid. 
+The Court held the eighth claim “too broad, and not war­
+ranted by law.” Id., at 113. The problem was that it cov­
+ered all means of achieving telegraphic communication, yet 
+Morse had not described how to make and use them all. See 
+id., at 113–117; see also 3 Chisum on Patents § 7.03[1], pp. 7– 
+18 to 7–19 (2021). “[I]f the eighth claim . . . can be main­
+tained,” the Court concluded, “there was no necessity for 
+any specifcation, further than to say that he had discovered 
+that, by using the motive power of electro-magnetism, he 
+could print intelligible characters at any distance.” 15 How., 
+at 119. “[I]t will be admitted on all hands, that no patent 
+could have issued on such a specifcation.” Ibid. 
+Consider, too, Incandescent Lamp. For much of the 19th 
+century, gas lamps helped illuminate streets and supple­
+mented candles inside homes, factories, offces, and theaters. 
+But gas lighting had drawbacks. It took effort to ignite 
+lamps each night and extinguish them each morning. Then 
+there were the problems of soot and fumes. See R. Stross, 
+The Wizard of Menlo Park 84–85 (2007) (Stross). By the 
+
+608 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+1870s, many had experimented with other forms of lighting, 
+including incandescence and the arc light. 159 U. S., at 470. 
+But these alternatives burned unreliably or with unbearable 
+brightness. See id., at 470–471. The latter problem in par­
+ticular led one observer to lament this “new sort of urban 
+star,” which shines “horrible, unearthly, obnoxious” light. 
+R. L. Stevenson, A Plea for Gas Lamps, in Virginibus Pueris­
+que and Other Papers 295 (1881). 
+Enter Thomas Edison. From his laboratory in Menlo 
+Park, Edison and a team toiled to improve upon the prevail­
+ing method of incandescent lighting, which tended to employ 
+carbon flaments. 159 U. S., at 471–473. The problem with 
+carbon flaments was that they disintegrated rapidly. In a 
+sense, “carbon contained in itself the elements of its own de­
+struction.” Id., at 471. Seeking an alternative, Edison tin­
+kered for a time with platinum, but it was expensive and 
+diffcult to bring to the point of incandescence without melt­
+ing. Stross 78, 82. Eventually, Edison dispatched men 
+across the globe to collect specimens of bamboo. Id., at 109– 
+110. One sample from Japan worked brilliantly because 
+“[its] fbres [ran] more nearly parallel than in other species 
+of wood.” 159 U. S., at 473. Satisfed, Edison arranged to 
+have a Japanese farmer supply all of the bamboo he would 
+ever need. Stross 110. 
+But there was a catch. William Sawyer and Albon Man 
+had obtained a patent for an “ `electric lamp' ” with an “ `in­
+candescing conductor' ” made of “ `carbonized fbrous or tex­
+tile material,' ” which they claimed was an improvement over 
+conductors made of “ `mineral or gas carbon.' ” 159 U. S., 
+at 466, 468. Sawyer and Man's patent had not won them 
+commercial success. They had designed a lamp with a con­
+ductor made of carbonized paper, but the lamp proved defec­
+tive and quickly fell out of use. See id., at 471–472. Still, 
+their failure did not stop them from seeking to share in some 
+of Edison's success. Sawyer and Man alleged that Edison's 
+lamp infringed their patent because it “made use of a fbrous 
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+
+609 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+or textile material, covered by the patent.” Id., at 471. 
+What was that offending material? Bamboo. 
+This Court sided with Edison. It held that Sawyer and 
+Man's patent claimed much but enabled little. “Sawyer and 
+Man supposed they had discovered in carbonized paper the 
+best material for an incandescent conductor.” Id., at 472. 
+But “[i]nstead of confning themselves to carbonized paper, 
+as they might properly have done, and in fact did in their 
+third claim, they made a broad claim for every fbrous or 
+textile material.” Ibid. Even that broad claim “might” 
+have been permissible, the Court allowed, if Sawyer and 
+Man had disclosed “a quality common” to fbrous and textile 
+substances that made them “peculiarly” adapted to incandes­
+cent lighting. Ibid. Had they done so, others would have 
+known how to select among such materials to make an opera­
+ble lamp. But the record showed that most fbrous and tex­
+tile materials failed to work. Only through “painstaking ex­
+perimentation” did Edison discover that bamboo “answered 
+the required purpose.” Id., at 475–476. The Court sum­
+med up things this way: “[T]he fact that paper happens to 
+belong to the fbrous kingdom did not invest [Sawyer and 
+Man] with sovereignty over this entire kingdom.” 
+Id., 
+at 476. 
+The Court returned to these principles in Holland Furni­
+ture. There, the evidence indicated that animal glue has 
+properties that have long made it excellent for wood veneer­
+ing. See 277 U. S., at 247. Seeking a substitute, Perkins 
+Glue Company had developed and patented a starch glue 
+similar enough to animal glue that craftsmen could also use 
+it for wood veneering. See ibid. Yet Perkins's patent in­
+cluded a claim that went beyond the specifc starch glue it 
+manufactured. See id., at 250–251. This claim covered all 
+“starch glue which, [when] combined with about three parts 
+or less by weight of water, will have substantially the same 
+properties as animal glue.” Id., at 251. Perkins's specif­
+cation instructed gluemakers to choose a “starch ingredient” 
+Page Proof Pending Publication
+
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+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+with “such qualities” that it would yield a product “ `as good 
+as animal glue' ” for wood veneering “when combined with 
+three parts of water and with alkali.” Id., at 256. 
+The Court held this broad claim invalid for lack of en­
+ablement. Id., at 258. The specifcation described the key 
+input—the “starch ingredient”—in terms of its “use or func­
+tion” rather than its “physical characteristics or chemical 
+properties.” Id., 256. And that left gluemakers in a bind. 
+As the Court put it: “One attempting to use or avoid the use 
+of Perkins' discovery as so claimed and described function­
+ally could do so only after elaborate experimentation” with 
+different starches. Id., at 257. To be sure, the Court held, 
+Perkins was entitled to its patent on the specifc starch glue 
+it had invented. See id., at 255. The specifcation de­
+scribed that glue's “characteristic ingredient” with “particu­
+larity.” Ibid. But just as Morse could not claim all means 
+of telegraphic communication, and Sawyer and Man could not 
+claim all fbrous and textile materials for incandescence, Per­
+kins could not claim all starch glues made from whatever 
+starch happened to perform as well as animal glue. To hold 
+otherwise, the Court said, “would extend the monopoly be­
+yond the invention.” Id., at 258. 
+Our decisions in Morse, Incandescent Lamp, and Holland 
+Furniture reinforce the simple statutory command. If a 
+patent claims an entire class of processes, machines, manu­
+factures, or compositions of matter, the patent's specifcation 
+must enable a person skilled in the art to make and use the 
+entire class. In other words, the specifcation must enable 
+the full scope of the invention as defned by its claims. The 
+more one claims, the more one must enable. See § 112(a); 
+see also Continental Paper Bag Co. v. Eastern Paper Bag 
+Co., 210 U. S. 405, 419 (1908) (“[T]he claims measure the 
+invention”). 
+That is not to say a specifcation always must describe 
+with particularity how to make and use every single embodi­
+
+611 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+ment within a claimed class. For instance, it may suffce to 
+give an example (or a few examples) if the specifcation also 
+discloses “some general quality . . . running through” the 
+class that gives it “a peculiar ftness for the particular pur­
+pose.” Incandescent Lamp, 159 U. S., at 475. In some 
+cases, disclosing that general quality may reliably enable a 
+person skilled in the art to make and use all of what is 
+claimed, not merely a subset. See id., at 475–476.1 
+Nor is a specifcation necessarily inadequate just because 
+it leaves the skilled artist to engage in some measure of ad­
+aptation or testing. In Wood, a patent claimed a process for 
+making bricks by mixing coal dust into clay. 5 How., at 4. 
+The patent included “a general rule” about the proportion of 
+dust and clay to use and offered two alternative proportions 
+“where the clay has some peculiarity.” Id., at 5. The Court 
+upheld the claim, recognizing that “some small difference in 
+the proportions must occasionally be required” given the va­
+rieties of clay. Ibid. Similarly, in Minerals Separation, 
+the Court dismissed a challenge to a claimed process for sep­
+arating metal from mineral ores. 242 U. S., at 270. The 
+record showed that “preliminary tests” were required to 
+adapt the process to any particular ore. Ibid. Once more, 
+the Court explained that “the certainty which the law re­
+quires in patents is not greater than is reasonable.” Ibid. 
+And because the “composition of ores varies infnitely,” it 
+1 See also Béné v. Jeantet, 129 U. S. 683, 684–686 (1889) (rejecting claim 
+to method of shrinking coarse hair because the specifcation failed to give 
+“one skilled in chemistry such an idea of the particular kinds and character 
+of the chemicals, or combination of chemicals, with the relative proportions 
+of each, as would enable him to use the invention without having to resort 
+to experiments of his own to discover those ingredients”); Corona Cord 
+Tire Co. v. Dovan Chemical Corp., 276 U. S. 358, 385 (1928) (rejecting 
+claims to process of treating rubber with “ `a disubstituted guanidine' ” 
+because “between ffty and one hundred substances” ft that description 
+and the specifcation did not disclose “any general quality common to di­
+substituted guanidines which makes them all effective”). 
+Page Proof Pending Publication
+
+612 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+was “impossible to specify in a patent the precise treatment 
+which would be most successful and economical in each case.” 
+Id., at 271.2 
+Decisions such as Wood and Minerals Separation establish 
+that a specifcation may call for a reasonable amount of ex­
+perimentation to make and use a patented invention. What 
+is reasonable in any case will depend on the nature of the 
+invention and the underlying art. See Minerals Separa­
+tion, 242 U. S., at 270–271; see also Mowry v. Whitney, 14 
+Wall. 620, 644 (1872) (“[T]he defniteness of a specifcation 
+must vary with the nature of its subject. Addressed as it is 
+to those skilled in the art, it may leave something to their 
+skill in applying the invention”). But in allowing that much 
+tolerance, courts cannot detract from the basic statutory re­
+quirement that a patent's specifcation describe the invention 
+“in such full, clear, concise, and exact terms as to enable any 
+person skilled in the art” to “make and use” the invention. 
+§ 112(a). Judges may no more subtract from the require­
+ments for obtaining a patent that Congress has prescribed 
+than they may add to them. See Bilski v. Kappos, 561 U. S. 
+593, 602–603, 612 (2010). 
+III 
+With these principles in mind, we return to claims 19 and 
+29 of the '165 patent and claim 7 of the '741 patent. In doing 
+so, we do not doubt that Amgen's specifcation enables the 
+26 exemplary antibodies it identifes by their amino acid se­
+2 See also, e. g., Ives v. Hamilton, 92 U. S. 426, 429, 432 (1876) (upholding 
+claim “for an improvement in sawmills” based on “curved guides at the 
+upper end of the saw,” even though the specifcation did not “stat[e] the 
+nature of the curve,” because a “good mechanic acquainted with the con­
+struction of sawmills, and having the patent and diagram before him, 
+would have no diffculty in adopting the improvement, and making suitable 
+curves”); Tilghman v. Proctor, 102 U. S. 707, 732–733 (1881) (upholding 
+claim for process of separating fats and oils even though the specifcation 
+“suggests a trial . . . with different degrees of heat so as to ascertain that 
+which is best for each particular kind of fat”). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+613 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+quences. Even Sanof concedes that description is enough 
+to allow a person skilled in the art to make and use those 
+embodiments. See Tr. of Oral Arg. 68. But the claims be­
+fore us sweep much broader than those 26 antibodies. And 
+we agree with the lower courts that Amgen has failed to 
+enable all that it has claimed, even allowing for a reasonable 
+degree of experimentation. 
+While the technology at the heart of this case is thor­
+oughly modern, from the law's perspective Amgen's claims 
+bear more than a passing resemblance to those this Court 
+faced long ago in Morse, Incandescent Lamp, and Holland 
+Furniture. Amgen seeks to monopolize an entire class of 
+things defned by their function—every antibody that both 
+binds to particular areas of the sweet spot of PCSK9 and 
+blocks PCSK9 from binding to LDL receptors. The record 
+refects that this class of antibodies does not include just the 
+26 that Amgen has described by their amino acid sequences, 
+but a “vast” number of additional antibodies that it has not. 
+987 F. 3d, at 1085, 1088; see 2019 WL 4058927, *8 (“at least 
+millions of candidates”); see also Tr. of Oral Arg. 52–53. 
+Much as Morse sought to claim all telegraphic forms of com­
+munication, Sawyer and Man sought to claim all fbrous and 
+textile materials for incandescence, and Perkins sought to 
+claim all starch glues that work as well as animal glue for 
+wood veneering, Amgen seeks to claim “sovereignty over 
+[an] entire kingdom” of antibodies. Incandescent Lamp, 159 
+U. S., at 476. 
+That poses Amgen with a challenge. For if our cases 
+teach anything, it is that the more a party claims, the 
+broader the monopoly it demands, the more it must enable. 
+That holds true whether the case involves telegraphs devised 
+in the 19th century, glues invented in the 20th, or antibody 
+treatments developed in the 21st. To be fair, Amgen does 
+not dispute this much. It freely admits that it seeks to claim 
+for itself an entire universe of antibodies. Still, it says, its 
+broad claims are enabled because scientists can make and 
+
+614 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+use every undisclosed but functional antibody if they simply 
+follow the company's “roadmap” or its proposal for “conserv­
+ative substitution.” 
+We cannot agree. These two approaches amount to little 
+more than two research assignments. The frst merely de­
+scribes step-by-step Amgen's own trial-and-error method for 
+fnding functional antibodies—calling on scientists to create 
+a wide range of candidate antibodies and then screen each to 
+see which happen to bind to PCSK9 in the right place and 
+block it from binding to LDL receptors. See Part I–B, 
+supra; 987 F. 3d, at 1088; 2019 WL 4058927, *10–*13. The 
+second isn't much different. It requires scientists to make 
+substitutions to the amino acid sequences of antibodies 
+known to work and then test the resulting antibodies to see 
+if they do too—an uncertain prospect given the state of 
+the art. See Parts I–A, I–B, supra; 987 F. 3d, at 1088; 2019 
+WL 4058927, *10–*13. Whether methods like a “roadmap” 
+or “conservative substitution” might suffce to enable other 
+claims in other patents—perhaps because, as this Court 
+suggested in Incandescent Lamp, the inventor identifes a 
+quality common to every functional embodiment, supra, at 
+609—they do not here. They leave a scientist about where 
+Sawyer and Man left Edison: forced to engage in “painstak­
+ing experimentation” to see what works. 159 U. S., at 475. 
+That is not enablement. More nearly, it is “a hunting li­
+cense.” Brenner v. Manson, 383 U. S. 519, 536 (1966). 
+Think about it this way. “Imagine a combination lock 
+with 100 tumblers, each of which can be set to 20 different 
+positions.” Brief for Intellectual Property Law Professors 
+and Scholars as Amici Curiae 20. “Through trial and error, 
+imagine that an inventor fnds and discloses 26 different suc­
+cessful lock combinations.” Ibid. But imagine, too, “that 
+the inventor tries to claim much more, namely all successful 
+combinations,” while instructing others “to randomly try a 
+large set of combinations and then record the successful 
+ones.” Id., at 20–21. Sure enough, that kind of “roadmap” 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+615 
+Cite as: 598 U. S. 594 (2023) 
+Opinion of the Court 
+would produce functional combinations. Id., at 21. But it 
+would not enable others to make and use functional combina­
+tions; it would instead leave them to “random trial-and-error 
+discovery.” Ibid. Like many analogies, this one may over­
+simplify a bit, but it captures the gist of the problem. 
+Failing in its primary argument that it has enabled all of 
+the antibodies it claims, Amgen tries a few alternative lines 
+of attack. First, it suggests that the Federal Circuit erred 
+by applying an enablement test unmoored from the statutory 
+text. As Amgen sees it, that court confated the question 
+whether an invention is enabled with the question how long 
+may it take a person skilled in the art to make every embodi­
+ment within a broad claim. See Brief for Petitioners 24–29; 
+see also id., at 2, 19–20, 30–36. We do not see it that way. 
+While we agree with Amgen that enablement is not meas­
+ured against the cumulative time and effort it takes to make 
+every embodiment within a claim, we are not so sure the 
+Federal Circuit thought otherwise. That court went out of 
+its way to say that it “do[es] not hold that the effort required 
+to exhaust a genus is dispositive.” 987 F. 3d, at 1088 (em­
+phasis deleted). Instead, the court stressed, the problem 
+it saw is the same problem we see: Amgen offers persons 
+skilled in the art little more than advice to engage in “trial 
+and error.” Ibid. (internal quotation marks omitted). In 
+any event, we review judgments of the lower courts, not 
+statements in their opinions. See Black v. Cutter Labora­
+tories, 351 U. S. 292, 297 (1956). 
+Taking a similar tack, Amgen next argues that the Federal 
+Circuit erroneously “raise[d] the bar” for enablement of 
+claims that, like Amgen's, encompass an entire “genus” of 
+embodiments defned by their function. Brief for Petition­
+ers 25 (internal quotation marks omitted). This is imper­
+missible, Amgen argues, because the Patent Act “provides a 
+single, universal enablement standard for all invention[s].” 
+Ibid. (internal quotation marks omitted). Here, too, we 
+agree with Amgen in principle: There is one statutory en­
+
+Page Proof Pending Publication
+616 
+AMGEN INC. v. SANOFI 
+Opinion of the Court 
+ablement standard. But, once more, we do not understand 
+the Federal Circuit to have thought differently. Instead, we 
+understand that court to have recognized only that the more 
+a party claims for itself the more it must enable. As we 
+have seen, that much is entirely consistent with Congress's 
+directive and this Court's precedents. 
+Finally, Amgen warns that an affrmance risks “destroy­
+[ing] incentives for breakthrough inventions.” Id., at 38. 
+But striking the proper balance between incentivizing inven­
+tors and ensuring the public receives the full beneft of their 
+innovations is a policy judgment that belongs to Congress. 
+Since 1790, Congress has included an enablement mandate 
+as one feature among many designed to achieve the balance 
+it wishes. Our only duty in this case lies in applying that 
+mandate faithfully. 
+* 
+Section 112 of the Patent Act refects Congress's judgment 
+that if an inventor claims a lot, but enables only a little, the 
+public does not receive its beneft of the bargain. For more 
+than 150 years, this Court has enforced the statutory enable­
+ment requirement according to its terms. If the Court had 
+not done so in Incandescent Lamp, it might have been writ­
+ing decisions like Holland Furniture in the dark. Today's 
+case may involve a new technology, but the legal principle is 
+the same. The judgment is 
+Affrmed. 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 597, line 14, “10 F. 4th 1016” is replaced with “987 F. 3d 1080” 
+p. 609, line 9, “and” is replaced with “or” 
diff --git a/corpus/law/text/a881fc2d2eb0b70d.txt b/corpus/law/text/a881fc2d2eb0b70d.txt
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+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+KAGAN, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A264 (25-332) 
+DONALD J. TRUMP, PRESIDENT OF THE UNITED 
+STATES, ET AL. v. REBECCA KELLY SLAUGHTER, 
+ET AL. 
+ON APPLICATION FOR STAY 
+[September 22, 2025] 
+The application for stay presented to THE CHIEF JUSTICE 
+and by him referred to the Court is granted. The July 17,
+2025 order of the United States District Court for the Dis­
+trict of Columbia, No. 25–cv–909, ECF Doc. 52, is stayed. 
+The application is also treated as a petition for a writ of cer­
+tiorari before judgment, and the petition is granted.  The 
+parties are directed to brief and argue the following ques­
+tions: (1) Whether the statutory removal protections for
+members of the Federal Trade Commission violate the sep­
+aration of powers and, if so, whether Humphrey’s Executor 
+v. United States, 295 U. S. 602 (1935), should be overruled. 
+(2) Whether a federal court may prevent a person’s removal 
+from public office, either through relief at equity or at law. 
+The Clerk is directed to establish a briefing schedule that 
+will allow the case to be argued in the December 2025 ar­
+gument session. The stay shall terminate upon the sending
+down of the judgment of this Court. 
+JUSTICE KAGAN, with whom JUSTICE SOTOMAYOR and 
+JUSTICE JACKSON join, dissenting from the grant of the ap­
+plication for stay. 
+On top of granting certiorari before judgment in this case, 
+the Court today issues a stay enabling the President to im­
+mediately discharge, without any cause, a member of the
+Federal Trade Commission (FTC). That stay, granted on 
+
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+TRUMP v. SLAUGHTER 
+KAGAN, J., dissenting 
+our emergency docket, is just the latest in a series. Earlier 
+this year, the same majority, by the same mechanism, per­
+mitted the President to fire without cause members of the 
+National Labor Relations Board, the Merits Systems Pro­
+tection Board, and the Consumer Product Safety Commis­
+sion. See Trump v. Wilcox, 605 U. S. ___ (2025); Trump v. 
+Boyle, 606 U. S. ___ (2025).  Congress, as everyone agrees,
+prohibited each of those presidential removals. See, e.g., 15 
+U. S. C. § 41 (barring the President from discharging FTC 
+Commissioners except for “inefficiency, neglect of duty, or
+malfeasance in office”). Under the relevant statutes, the 
+entities just listed are “classic independent agenc[ies]”—
+“‘multi-member, bipartisan commission[s]’ whose members 
+serve staggered terms and cannot be removed except for 
+good reason.”  Boyle, 606 U. S., at ___ (KAGAN, J., dissenting 
+from grant of application for stay) (slip op., at 1).  Yet the 
+majority, stay order by stay order, has handed full control 
+of all those agencies to the President.  He may now re­
+move—so says the majority, though Congress said differ­
+ently—any member he wishes, for any reason or no reason 
+at all. And he may thereby extinguish the agencies’ bipar­
+tisanship and independence.
+I dissented from the majority’s prior stay orders, and to­
+day do so again. Under existing law, what Congress said 
+goes—as this Court unanimously decided nearly a century 
+ago. In Humphrey’s Executor v. United States, 295 U. S. 
+602 (1935), we rejected a claim of presidential prerogative 
+identical to the one made in this case. (Indeed, the suit
+emerged from a discharge at the very same agency.)  Con­
+gress, we held, may restrict the President’s power to remove
+members of the FTC, as well as other agencies performing 
+“quasi-legislative or quasi-judicial” functions, without vio­
+lating the Constitution. Id., at 629.  So the President can­
+not, as he concededly did here, fire an FTC Commissioner 
+without any reason.  To reach a different result requires re­
+versing the rule stated in Humphrey’s: It entails overriding 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 606 U. S. ____ (2025) 
+KAGAN, J., dissenting 
+rather than accepting Congress’s judgment about agency
+design. The majority may be raring to take that action, as 
+its grant of certiorari before judgment suggests.  But until 
+the deed is done, Humphrey’s controls, and prevents the 
+majority from giving the President the unlimited removal
+power Congress denied him.  Because the majority’s stay
+does just that, I respectfully dissent.  Our emergency docket 
+should never be used, as it has been this year, to permit
+what our own precedent bars.  Still more, it should not be 
+used, as it also has been, to transfer government authority 
+from Congress to the President, and thus to reshape the 
+Nation’s separation of powers. 
diff --git a/corpus/law/text/add8232c9e634407.txt b/corpus/law/text/add8232c9e634407.txt
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@@ -0,0 +1,3 @@
+PENEGAKAN HUKUM LINGKUNGAN DALAM BIDANG PENGELOLAAN SAMPAH SEBAGAI PERWUJUDAN PRINSIP GOOD ENVIRONMENTAL GOVERNANCE DI KOTA SURAKARTA
+
+Abstract Waste management still be a problems which not yet solved. This research aims to study the problems in waste management in Surakarta. It was a doctrinal/normative legal research using the statute approach, which then analyzed qualitatively. There are laws correlated to waste management in Indonesia, they are Law number 18 Year 2008 on Waste Management, Law No. 32 of 2009 on the Protection and Environmental Management, and some more. The law enforcement in waste management refers to as known as legal system i.e. structure, substance, and culture. There are two kinds of waste management law enforcement; preventive and repressive way. The effectiveness on the enforcement refers to the combination of structure, substance, and law cultures of the community. The effective law enforcement on waste management also indicates the commitment of the government, both local and national, in applying the principles of Good Environmental Government in order to build community awareness on good and healthy environment. Keywords: Effective law enforcement, waste management Abstrak Pengelolaan sampah saat ini masih menjadi permasalahan yang belum terselesaikan. Penelitian ini bertujuan untuk mengkaji permasalahan dalam pengelolaan sampah di Surakarta. Penelitian ini adalah penelitian hukum doktrinal/normatif dengan pendekatan perundang-undangan. Data dikumpulkan dengan studi kepustakaan, kemudian dianalisis secara kualitatif. Terdapat beberapa peraturan perundang-undangan yang mempunyai korelasi dengan pengelolaan sampah di Indonesia yaitu Undang-Undang No. 32 Tahun 2009 tentang Perlindungan dan Pengelolaan Lingkungan Hidup dan beberapa undang-undang lainnya. Penegakan hukum dalam pengelolaan sampah mengacu pada 3 sistem hukum yang merupakan gabungan dari komponen-komponen yaitu struktur, substansi, dan budaya. Selain itu berkaitan dengan penegakan hukum dalam pengelolaan sampah dapat dikaji dari 2 sisi yaitu penegakan hukum secara preventif dan represif. Penegakan hukum dalam pengelolaan sampah juga menjadi sebuah perwujudan pemerintah maupun pemerintah daerah dalam menerapkan prinsip Good Environmental Governance dengan tujuan akan menumbuhkan kesadaran bagi masyarakat akan lingkungan hidup yang
\ No newline at end of file
diff --git a/corpus/law/text/b1758388bcf3fd27.txt b/corpus/law/text/b1758388bcf3fd27.txt
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@@ -0,0 +1,1576 @@
+PRELIMINARY PRINT 
+Volume 605 U. S. Part 2 
+Pages 627–664 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 18, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2024 
+627 
+Syllabus 
+ENVIRONMENTAL PROTECTION AGENCY v. CALU­
+MET SHREVEPORT REFINING, L.L.C., et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 23–1229. Argued March 25, 2025—Decided June 18, 2025 
+The Clean Air Act (CAA) establishes a comprehensive venue framework 
+for judicial review of Environmental Protection Agency (EPA) actions 
+designed to ensure proper distribution of cases among federal courts. 
+Under 42 U. S. C. § 7607(b)(1), “nationally applicable” EPA actions must 
+be challenged exclusively in the D. C. Circuit, while “locally or region­
+ally applicable” actions ordinarily belong in regional Circuits. How­
+ever, locally or regionally applicable actions that are “based on a deter­
+mination of nationwide scope or effect” must be reviewed in the D. C. 
+Circuit if EPA fnds and publishes that such basis exists. This tripar­
+tite system refects congressional intent to channel nationally signifcant 
+EPA actions to the D. C. Circuit while keeping most regionally focused 
+matters in local Circuits. 
+Under the CAA's renewable fuel program, most domestic refneries 
+must blend specifed amounts of ethanol and other renewable fuels into 
+transportation fuels they produce. The Act provides a phased exemp­
+tion scheme for small refneries—those processing no more than 75,000 
+barrels of crude oil daily—allowing them to petition EPA for exemp­
+tions based on “disproportionate economic hardship.” § 7545(o)(9)(B)(i). 
+Following this Court's decision in HollyFrontier Cheyenne Refning, 
+LLC v. Renewable Fuels Assn., 594 U. S. 382, which clarifed that small 
+refneries could obtain exemption “extensions” even after their original 
+exemptions had lapsed, the D. C. Circuit remanded pending exemption 
+cases to EPA for reconsideration. 
+EPA then proposed and ultimately denied 105 small refnery exemp­
+tion petitions in two omnibus notices issued in April and July 2022. 
+EPA's denials were based on two principal determinations: frst, its in­
+terpretation that “disproportionate economic hardship” covers only 
+hardship directly caused by renewable fuel program compliance; and 
+second, its economic theory that Renewable Identifcation Number 
+(RIN) costs are fully passed through to consumers, creating a presump­
+tion against granting exemptions. EPA applied these determinations 
+uniformly while conducting confrmatory reviews of individual refnery 
+circumstances. EPA asserted in its denial notices that the denials were 
+reviewable only in the D. C. Circuit, either as “nationally applicable” 
+
+628 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Syllabus 
+actions or, alternatively, as locally applicable actions “based on a deter­
+mination of nationwide scope or effect.” 
+Small refneries challenged these denials in multiple regional Circuits. 
+Most Circuits either dismissed the challenges for improper venue or 
+transferred them to the D. C. Circuit. However, the Fifth Circuit re­
+tained jurisdiction, rejecting EPA's venue arguments and ruling for the 
+refneries on the merits. The Fifth Circuit reasoned that EPA's actions 
+were merely locally applicable because their “legal effect” was limited 
+to the petitioning refneries, and that the actions were not based on 
+determinations of nationwide scope or effect because EPA still exam­
+ined refnery-specifc facts before issuing denials. 
+Held: EPA's denials of small refnery exemption petitions are locally or 
+regionally applicable actions that fall within the “nationwide scope or 
+effect” exception, requiring venue in the D. C. Circuit. Pp. 636–650. 
+(a) Section 7607(b)(1) creates a two-step inquiry for determining 
+venue. First, courts assess whether an EPA action is nationally appli­
+cable or only locally or regionally applicable. If nationally applicable, 
+the case belongs in the D. C. Circuit. If locally or regionally applicable, 
+courts proceed to the second step to determine whether the “nationwide 
+scope or effect” exception applies to override the default rule of regional 
+Circuit review. Pp. 636–642. 
+(1) To identify the relevant “action,” courts must look to the author­
+izing CAA provision rather than how EPA packages its decisions. The 
+enumerated “actions” in § 7607(b)(1) make clear that this provision 
+“treats each activity the Clean Air Act allows the EPA to take as a 
+distinct `action.' ” Kentucky v. EPA, 123 F. 4th 447, 460. Because the 
+CAA allows “[a] small refnery” to “petition [EPA] for an extension of 
+[its] exemption” and requires EPA to “act on any petition submitted,” 
+each EPA denial of a refnery's exemption petition constitutes its own 
+“action” for venue purposes. Pp. 636–638. 
+(2) An action is “nationally applicable” if it applies “[o]n its face” 
+throughout the entire country, or only “locally or regionally applicable” 
+if it applies only to particular localities or regions. Sierra Club v. EPA, 
+926 F. 3d 844, 849. EPA's denial of a single refnery's exemption peti­
+tion applies only to that refnery, a particular entity in a particular place, 
+making such denials paradigmatically “locally or regionally applicable” 
+actions. Pp. 638–640. 
+(3) EPA's argument that it can control the unit of “action” for venue 
+purposes by aggregating similar petitions into omnibus notices lacks any 
+statutory limiting principle and would effectively give EPA veto power 
+over venue. EPA's position that any action affecting more than one 
+Circuit is nationally applicable would render actions with plainly local 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+629 
+Syllabus 
+or regional focus “nationally applicable” simply because the locality or 
+region straddles Circuit lines. Pp. 640–642. 
+(b) Because EPA's actions are locally or regionally applicable, the 
+Court must determine whether the “nationwide scope or effect” excep­
+tion applies. This exception requires that (1) the action “is based on a 
+determination of nationwide scope or effect,” and (2) EPA “fnds and 
+publishes that such action is based on such a determination.” All agree 
+the second requirement is satisfed. Pp. 642–650. 
+(1) A “determination” refers to EPA's justifcations in taking the 
+action. 
+Determinations are of nationwide “scope” if they apply 
+throughout the country “as a legal matter (de jure)” and of nationwide 
+“effect” if they so apply “as a practical [matter] (de facto).” Kentucky, 
+123 F. 4th, at 465. An EPA action is “based on” a determination of 
+nationwide scope or effect only if that determination “lie[s] at the core 
+of the agency action” and forms the primary explanation for and driver 
+of EPA's action. Texas v. EPA, 829 F. 3d 405, 419. This requires more 
+than but-for causation; it requires that a justifcation of nationwide 
+breadth be the most important part of EPA's reasoning. Courts should 
+evaluate this de novo. Pp. 643–646. 
+(2) Applying this framework, EPA's exemption denials were based 
+on determinations of nationwide scope or effect. EPA's interpretation 
+of “disproportionate economic hardship” under § 7545(o)(9)(B)(i) and its 
+RIN passthrough theory are clear determinations of nationwide scope 
+or effect that apply generically to all refneries regardless of geographic 
+location. These determinations formed the core basis for EPA's denials 
+because EPA used them to reach a presumptive resolution to deny all 
+petitions, then considered refnery-specifc factors only to confrm it had 
+no reason to depart from this presumptive disposition. Where EPA 
+relies on determinations of nationwide scope or effect to reach a pre­
+sumptive resolution, those determinations qualify as the primary driver 
+of its decision. EPA's confrmatory review of refnery-specifc facts 
+is “[m]erely peripheral” by comparison. Texas, 829 F. 3d, at 419. 
+Pp. 646–647. 
+(3) The Court rejects EPA's argument that “determination” covers 
+only the resolution of unsettled issues, as well as respondents' argument 
+that “determination” is a term of art applicable only when a CAA provi­
+sion textually directs EPA to make a “determination” for the entire 
+Nation. The Court also rejects the argument that EPA's consideration 
+of refnery-specifc facts precludes the exception's application, noting 
+that the exception requires an action be “based on,” not “based solely 
+on,” a determination of nationwide scope or effect. Pp. 647–650. 
+86 F. 4th 1121, vacated and remanded. 
+Page Proof Pending Publication
+
+630 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Syllabus 
+Thomas, J., delivered the opinion of the Court, in which Alito, Soto-
+mayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. Gor­
+such, J., fled a dissenting opinion, in which Roberts, C. J., joined, post, 
+p. 650. 
+Deputy Solicitor General Stewart argued the cause for 
+petitioner. With him on the briefs were Acting Solicitor 
+General Harris, Solicitor General Prelogar, Assistant At­
+torney General Kim, Aimee W. Brown, Bryan J. Harrison, 
+Susannah Weaver, and Matthew Marks. 
+Seth P. Waxman argued the cause for respondents Growth 
+Energy et al. in support of petitioner. With him on the 
+briefs were Matthew W. Morrison, Shelby L. Dyl, and David 
+M. Lehn. 
+Michael R. Huston argued the cause for respondent Calu­
+met Shreveport Refning, L.L.C., et al. With him on the 
+brief were Karl J. Worsham, Jordan M. Buckwald, Sopen 
+Shah, Alexandra M. Bromer, Jonathan G. Hardin, Aimee E. 
+Ford, and Eric Wolff.* 
+*Briefs of amici curiae urging reversal were fled for the State of New 
+York et al. by Letitia James, Attorney General of New York, Barbara D. 
+Underwood, Solicitor General, Judith N. Vale, Deputy Solicitor General, 
+Elizabeth A. Brody, Assistant Solicitor General, and Morgan A. Costello 
+and Claiborne E. Walthall, Assistant Attorneys General, by Christian 
+Menefee, and by the Attorneys General for their respective jurisdictions 
+as follows: Kris Mayes of Arizona, Philip J. Weiser of Colorado, William 
+Tong of Connecticut, Kathleen Jennings of Delaware, Brian L. Schwalb 
+of the District of Columbia, Kwame Raoul of Illinois, Anthony G. Brown 
+of Maryland, Andrea Joy Campbell of Massachusetts, Dana Nessel of 
+Michigan, Keith Ellison of Minnesota, Matthew J. Platkin of New Jersey, 
+Ellen F. Rosenblum of Oregon, Michelle A. Henry of Pennsylvania, Peter 
+F. Neronha of Rhode Island, Charity R. Clark of Vermont, Robert W. 
+Ferguson of Washington, and Joshua L. Kaul of Wisconsin; and for 
+NATSO et al. by Hyland Hunt and Ruthanne M. Deutsch. 
+Briefs of amici curiae urging affrmance were fled for Countrymark 
+Refning and Logistics, LLC, by Aaron M. Herzig and Philip D. William­
+son; and for Sen. Mike Lee et al. by R. Trent McCotter. 
+Jeremy C. Marwell, Jennifer B. Dickey, Andrew R. Varcoe, and Eric 
+Groten fled a brief for the Chamber of Commerce of the United States of 
+America as amicus curiae. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+631 
+Opinion of the Court 
+Justice Thomas delivered the opinion of the Court. 
+The Clean Air Act (CAA) establishes a tripartite system 
+for determining venue in CAA litigation. Challenges to 
+“nationally applicable” Environmental Protection Agency 
+(EPA) actions belong in the U. S. Court of Appeals for the 
+D. C. Circuit, while challenges to “locally or regionally appli­
+cable” EPA actions ordinarily belong in a regional Circuit. 
+42 U. S. C. § 7607(b)(1). But, the CAA makes an exception 
+for local or regional actions that are “based on a determina­
+tion of nationwide scope or effect” and accompanied by an 
+EPA fnding of this basis, which also must be challenged in 
+the D. C. Circuit. Ibid. Applying this framework to EPA's 
+2022 denials of certain small refneries' exemption petitions, 
+we hold that the refneries' challenges belong in the D. C. 
+Circuit. EPA's denials are only locally or regionally applica­
+ble, but they fall within the “nationwide scope or effect” 
+exception. 
+I 
+A 
+Section 7607(b)(1)—the CAA's venue provision—governs 
+where petitioners should fle challenges to EPA actions 
+under that statute. As originally enacted, § 7607(b)(1) dic­
+tated venue only for an enumerated subset of EPA actions. 
+Certain actions with a national reach, such as “any national 
+primary or secondary ambient air quality standard” 
+(NAAQS) were reviewable only in the D. C. Circuit. 
+§ 1857h–5(b)(1) (1970 ed.). Area-specific “implementation 
+plan[s]” went to “the appropriate” regional Circuit. Ibid. 
+Any other unmentioned actions could be heard only in dis­
+trict courts through their general grant of federal-question 
+jurisdiction. Harrison v. PPG Industries, Inc., 446 U. S. 
+578, 584 (1980); see 28 U. S. C. § 1331. 
+In 1977, Congress replaced this patchwork system with 
+the CAA's current scheme, which makes all EPA actions di­
+rectly reviewable in a federal court of appeals. 91 Stat. 776 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+632 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+(codified as amended at 42 U. S. C. § 7607(b)(1)). 
+The 
+amended statute specifes that, in addition to NAAQS and 
+other enumerated actions, “any other nationally applicable 
+. . . fnal action taken” by EPA under the CAA may be re­
+viewed only in the D. C. Circuit. § 7607(b)(1). And, in addi­
+tion to implementation plans, “any other fnal action of [EPA] 
+under this chapter . . . which is locally or regionally applica­
+ble” ordinarily may be reviewed only in a regional Circuit. 
+Ibid. Congress has since amended the CAA to specify addi­
+tional kinds of actions that fall within these two categories. 
+91 Stat. 1404; 104 Stat. 2681. 
+Congress also created a third venue category in the 1977 
+amendments. This category provided an exception to the 
+default rule that locally or regionally applicable actions 
+should be reviewed in the regional Circuits. Congress in­
+structed that a locally or regionally applicable action must 
+be reviewed in the D. C. Circuit “if [it] is based on a determi­
+nation of nationwide scope or effect” and “if in taking such 
+action [EPA] fnds and publishes that such action is based on 
+such a determination.” § 7607(b)(1). 
+B 
+The EPA actions at issue in this case relate to the CAA's 
+renewable fuel program (RFP). The RFP “requires most 
+domestic refneries to blend a certain amount of ethanol and 
+other renewable fuels into the transportation fuels they 
+produce.” HollyFrontier Cheyenne Refning, LLC v. Re­
+newable Fuels Assn., 594 U. S. 382, 385 (2021). Each cov­
+ered refnery's precise obligation turns on its proportional 
+share of various “nationwide volume mandates.” Id., at 
+385–386; see §§ 7545(o)(2)(A)(i), (o)(3); 40 CFR § 80.1407(a) 
+(2024). 
+Covered refneries demonstrate compliance through a sys­
+tem of Renewable Identifcation Number credits (RINs). 
+See 40 CFR §§ 80.1425, 80.1426(a). A refnery generates 
+RINs whenever it blends renewable fuels, § 80.1426(a), 
+
+Cite as: 605 U. S. 627 (2025) 
+633 
+Opinion of the Court 
+and refneries may also buy and sell RINs, 42 U. S. C. 
+§ 7545(o)(5)(B). Thus, each year, a refnery may show 
+compliance “thanks to its own blending efforts, the purchase 
+of credits from someone else, or a combination of both.” 
+HollyFrontier, 594 U. S., at 386. 
+The CAA contains a phased exemption scheme for small 
+refneries—i. e., refneries whose “average aggregate daily 
+crude oil throughput for a calendar year . . . does not exceed 
+75,000 barrels.” § 7545(o)(1)(K). The scheme exempted all 
+small refneries from RFP compliance until 2011. § 7545(o) 
+(9)(A)(i). It then required EPA to extend this blanket ex­
+emption, for at least two years, for all small refneries found 
+by a Department of Energy study to face “disproportionate 
+economic hardship” if subjected to the RFP's obligations. 
+§ 7545(o)(9)(A)(ii). Finally, the scheme allows a small refn­
+ery to “at any time petition [EPA] for an extension of [its] 
+exemption . . . for the reason of disproportionate economic 
+hardship.” § 7545(o)(9)(B)(i). We interpreted this last pro­
+vision in HollyFrontier, holding that a small refnery may 
+obtain an “extension” even after its original exemption has 
+lapsed. Id., at 396. 
+C 
+This case arose in the aftermath of HollyFrontier. Pend­
+ing that decision, the D. C. Circuit had been holding in abey­
+ance challenges to EPA's resolution of 36 small refneries' 
+exemption petitions for the 2018 compliance year. After­
+wards, that court granted EPA's motion for remand without 
+vacatur, so that EPA could reconsider its orders in light of 
+the HollyFrontier litigation. Order in Sinclair Wyoming 
+Refning Co. v. EPA, No. 19–1196 etc. (CADC, Dec. 8, 2021), 
+p. 3. The D. C. Circuit instructed EPA to issue its new deci­
+sions within 120 days. Ibid. 
+Shortly thereafter, EPA noticed for public comment a pro­
+posal to deny all pending exemption petitions. 86 Fed. Reg. 
+71000 (2021). EPA's notice set out two principles. First, 
+EPA offered its interpretation of “disproportionate economic 
+Page Proof Pending Publication
+
+634 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+hardship,” the CAA's threshold for an exemption petition to 
+be granted. § 7545(o)(9)(B)(i). On EPA's view, that phrase 
+covers only hardship that is caused by RFP compliance. 
+App. in No. 22–60266 etc. (CA5), pp. 545–548. Second, EPA 
+theorized that, as a matter of economics, small refneries or­
+dinarily do not suffer disproportionate economic hardship as 
+a result of the RFP because “RIN costs are fully passed 
+through to consumers.” Id., at 549; see id., at 548–584. 
+Based on this “RIN passthrough” theory, EPA proposed de­
+nying all pending petitions “by fnding the petitioning refn­
+eries do not face [disproportionate economic hardship] caused 
+by compliance with their [RFP] obligations.” 86 Fed. Reg. 
+71000. 
+After receiving comments, EPA followed through and de­
+nied the pending exemption petitions in two omnibus notices. 
+EPA issued the frst in April 2022 to deny the 36 petitions 
+subject to the D. C. Circuit's deadline. 87 Fed. Reg. 24300. 
+EPA issued the second in July 2022, to deny an additional 69 
+petitions from the 2016 to 2021 compliance years. Id., at 
+34874. In both notices, EPA relied primarily on the princi­
+ples from its proposal—namely, its statutory interpretation 
+of “disproportionate economic hardship” and its RIN pass-
+through theory. App. to Pet. for Cert. 100a, 107a, 242a, 
+249a. EPA treated the passthrough theory as creating a 
+presumption against granting exemptions, and it examined 
+the petitioning refneries' evidence regarding their specifc 
+circumstances to confrm that none of the refneries had re­
+butted this presumption. See id., at 107a–108a, 163a–168a, 
+249a–250a, 305a–310a. 
+EPA also asserted in the denial notices that its denials 
+were reviewable only in the D. C. Circuit. According to 
+EPA, the notices were “ `nationally applicable' ” actions 
+under § 7607(b)(1). Id., at 187a, 328a. Alternatively, if the 
+actions were only “locally or regionally applicable,” then 
+EPA invoked the exception for actions “based on a determi­
+nation of `nationwide scope or effect.' ” Ibid. EPA in­
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+635 
+Opinion of the Court 
+cluded in both notices a fnding that its new statutory inter­
+pretation and RIN passthrough theory supplied the relevant 
+determinations of nationwide scope or effect. Id., at 
+187a–188a, 329a. 
+Notwithstanding EPA's position, small refneries chal­
+lenged these denials in a host of regional Circuits. Agree­
+ing with EPA that the litigation belonged in the D. C. Cir­
+cuit, most of these Circuits either dismissed the petitions for 
+improper venue or transferred them to the D. C. Circuit.1 
+The Fifth Circuit took a different approach. Evaluating 
+the petitions fled by six small refneries (respondents here), 
+the Fifth Circuit held that the litigation was properly before 
+it. The majority rejected the arguments for transfer raised 
+by EPA and a group of intervenors, reasoning that EPA's 
+notices were merely locally or regionally applicable actions, 
+because their “legal effect” was limited to the petitioning 
+refneries. 86 F. 4th 1121, 1131–1132 (2023). And, contra 
+EPA, the notices were not based on any determination of 
+nationwide scope or effect. Both EPA's new interpretation 
+and its RIN passthrough theory “fail[ed] to provide the 
+agency with a suffcient basis to adjudicate exemption peti­
+tions,” because EPA still looked to refnery-specifc facts be­
+fore it issued its denials. Id., at 1133. Accordingly, the case 
+properly belonged in the Fifth Circuit, and the majority pro­
+ceeded to rule against EPA on the merits, vacating and re­
+manding EPA's denials for further consideration. Id., at 
+1133, 1142. 
+Judge Higginbotham dissented on venue grounds. In his 
+view, EPA's denial notices were nationally applicable because 
+they applied throughout the country: EPA applied a consist­
+1 See, e. g., Orders in American Rfg. Group, Inc. v. EPA, No. 22–1991 
+(CA3, Aug. 9, 2022), ECF Doc. 23; Countrymark Rfg. & Logistics, LLC v. 
+EPA, No. 22–1878 (CA7, July 20, 2022), ECF Doc. 13; Calumet Mont. Rfg., 
+LLC v. EPA, No. 22–70124 (CA9, Oct. 25, 2022), ECF Doc. 16; Wyoming 
+Rfg. Co. v. EPA, No. 22–9538 (CA10, Aug. 23, 2022), ECF Doc. 26; see also 
+Hunt Rfg. Co. v. EPA, 90 F. 4th 1107, 1113 (CA11 2024). 
+Page Proof Pending Publication
+
+636 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+ent approach to small refneries spanning “eighteen different 
+states, in the geographical boundaries of eight different cir­
+cuit courts.” Id., at 1143–1144. And, if the notices were 
+only locally or regionally applicable, then EPA was correct 
+to fnd that the “nationwide scope or effect” exception ap­
+plied: EPA's statutory interpretation and its passthrough 
+theory were “core determinations” that have nationwide 
+scope or effect in that they “are applicable to all small refn­
+eries no matter the location or market in which they oper­
+ate.” Id., at 1145. We granted certiorari to clarify where 
+venue properly lies. 604 U. S. 997 (2024). 
+II 
+Section 7607(b)(1) creates a two-step inquiry for determin­
+ing venue. At the frst step, we assess whether an EPA 
+action is nationally applicable, or only locally or regionally 
+applicable. If the action is nationally applicable, then our 
+inquiry ends: The case belongs in the D. C. Circuit. If the 
+action is locally or regionally applicable, then we proceed to 
+the second step. There, we ask whether the “nationwide 
+scope or effect” exception applies to override the default rule 
+that locally or regionally applicable actions belong in the re­
+gional Circuits. Turning to § 7607(b)(1)'s frst step, we hold 
+that the actions before us are only locally or regionally 
+applicable. 
+A 
+To properly categorize EPA's actions at the frst step, we 
+must determine what the relevant “action” is, and what it 
+means for an action to be “nationally applicable” as opposed 
+to “locally or regionally applicable.” Once those principles 
+are clarifed, the categorization here is straightforward. 
+1 
+Because § 7607(b)(1) pegs venue to the scope of the EPA 
+action being challenged, our threshold task is to identify the 
+“action” at issue. To do so, we must read “action” in its 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+637 
+Opinion of the Court 
+context. That word means “a thing done.” Webster's 
+Third New International Dictionary 21 (1976) (Webster's); 
+see also Black's Law Dictionary 26 (5th ed. 1979) (Black's) 
+(“something done”). But, we could defne the “thing done” 
+by EPA in different ways. Both EPA's denials of each indi­
+vidual exemption petition and its aggregation of those deni­
+als into omnibus notices are in a sense things done. The 
+former is an “activity the Clean Air Act allows the EPA to 
+take,” while the latter is how EPA has chosen to undertake 
+that activity. Kentucky v. EPA, 123 F. 4th 447, 460 (CA6 
+2024). 
+To determine which framing matters for purposes of 
+§ 7607(b)(1), we look to the example “actions” this provision 
+enumerates. Section 7607(b)(1) lists various examples of 
+EPA actions that qualify as either “nationally applicable” or 
+“locally or regionally applicable.” For both these terms, it 
+then provides a catchall for “any other” “fnal action.” And, 
+we “interpret a `general or collective term' . . . in light of 
+any `common attribute[s]' shared by” statutory examples of 
+that term. Southwest Airlines Co. v. Saxon, 596 U. S. 450, 
+458 (2022). 
+The enumerated “actions” in § 7607(b)(1) make clear that 
+this provision “treats each activity the Clean Air Act allows 
+the EPA to take as a distinct `action.' ” Kentucky, 123 
+F. 4th, at 460. These “actions” all refer to particular exer­
+cises of EPA authority undertaken pursuant to particular 
+CAA provisions. For instance, the example of a NAAQS 
+must be understood by reference to § 7409(a), which directs 
+EPA to issue a NAAQS “for each air pollutant,” and thus 
+indicates that each pollutant-specifc standard is its own “ac­
+tion.” Likewise, § 7607(b)(1)'s example of EPA's approval of 
+an “implementation plan under section 7410” must be read 
+in light of § 7410, which makes clear that an implementation 
+plan is a proposal “submitted by a State,” and thus indicates 
+that EPA's approval decision is state specifc. § 7410(a)(2). 
+In each case, the enumerated EPA “action” is defned by ref­
+Page Proof Pending Publication
+
+638 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+erence to the substantive authority under which EPA is act­
+ing. See id., at 461. 
+Accordingly, for both § 7607(b)(1)'s enumerated examples 
+and “any other . . . fnal action taken” by EPA “under this 
+chapter,” we must look to the authorizing CAA provision to 
+identify the “action” at hand. This provision makes the 
+CAA's framing of the relevant “action” controlling, regard­
+less of how EPA chooses to package its decisions in the Fed­
+eral Register.2 
+2 
+The next question is whether a given action is “nationally 
+applicable” or only “locally or regionally applicable.” Be­
+cause § 7607(b)(1) does not defne those terms, we presump­
+tively give those terms their ordinary meaning. Burrage v. 
+United States, 571 U. S. 204, 210 (2014). The word “ `[n]a­
+tional' contemplates an activity with a nationwide scope,” 
+while the words “local” and “regional” relate only to particu­
+lar “place[s]” or regions. See Black's 845, 923. And, the 
+word “applicable” requires us to ask what the EPA action in 
+question “ `ha[s] reference to.' ” Kentucky, 123 F. 4th, at 459. 
+Put another way, we ask whether the action “[o]n its face” 
+applies throughout the entire country, or only to particular 
+localities or regions. Sierra Club v. EPA, 926 F. 3d 844, 849 
+(CADC 2019). 
+The statutory context supplied by § 7607(b)(1)'s enumer­
+ated examples confrms the correctness of this ordinary-
+meaning approach. The actions that § 7607(b)(1) identifes 
+as “nationally applicable” facially apply nationwide. For ex­
+ample, courts have identifed a NAAQS—a “ `national pri­
+mary or secondary ambient air quality standard' ”—as “[t]he 
+textbook example of nationally applicable action.” Sierra 
+Club v. EPA, 47 F. 4th 738, 743 (CADC 2022). Conversely, 
+2 The Fifth Circuit therefore erred in summarily accepting EPA's char­
+acterization of its omnibus notices as the “two EPA actions” at issue in 
+this case. 86 F. 4th 1121, 1129 (2023); see supra, at 635. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+639 
+Opinion of the Court 
+the actions that the CAA enumerates as “locally or region­
+ally applicable” all have more particularized reach. For in­
+stance, “the prototypical `locally or regionally applicable' ac­
+tion” is EPA's approval of a state implementation plan, 
+which, as explained, is state specifc. American Road & 
+Transp. Builders Assn. v. EPA, 705 F. 3d 453, 455 (CADC 
+2013) (majority opinion of Kavanaugh, J.); supra, at 637. Be­
+cause catchall “clauses are to be read as bringing within a 
+statute categories similar in type to those specifcally enu­
+merated,” the examples make clear that the ordinary mean­
+ing of the terms “nationally applicable” and “locally or re­
+gionally applicable” controls. Federal Maritime Comm'n v. 
+Seatrain Lines, Inc., 411 U. S. 726, 734 (1973).3 
+3 
+Applying these principles here, we treat each EPA denial 
+of a refnery's exemption petition as its own “action” for 
+venue purposes. And, EPA's denial of a single refnery's pe­
+tition plainly is only locally or regionally applicable. 
+This conclusion follows from how the CAA defnes the sub­
+mission and evaluation of an RFP exemption petition. The 
+CAA allows “[a] small refnery” to “at any time petition 
+[EPA] for an extension of [its] exemption” from RFP obliga­
+tions. § 7545(o)(9)(B)(i). EPA, in turn, is to “evaluat[e] a 
+petition” and then “act on any petition submitted . . . not 
+later than 90 days after the date of receipt of the petition.” 
+§§ 7545(o)(9)(B)(ii)–(iii). Thus, the CAA pegs EPA's “ac­
+3 Because 42 U. S. C. § 7607(b)(1) requires all actions to be either nation­
+ally applicable or locally or regionally applicable, diffcult edge cases may 
+arise. For example, if an EPA action must “formally appl[y]” to “the 
+whole country” to be nationally applicable, Kentucky v. EPA, 123 F. 4th 
+447, 460 (CA6 2024), then actions could apply to nearly the entire country 
+yet still be locally or regionally applicable, see, e. g., § 7545(i)(4). But, if 
+an action that formally applies to only a subset of the country can be 
+nationally applicable, see ATK Launch Systems, Inc. v. EPA, 651 F. 3d 
+1194, 1197 (CA10 2011), then line-drawing questions may arise, Kentucky, 
+123 F. 4th, at 460–462. This case, however, does not present these issues. 
+Page Proof Pending Publication
+
+640 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+tions” under the exemption provision by reference to each 
+individual exemption petition. 
+Against this backdrop, our classification decision is 
+straightforward. By defnition, EPA's denial of a single re­
+fnery's exemption petition only applies to that refnery, 
+which is a particular entity located in a particular place. 
+That limited reach makes EPA's denials paradigmatically 
+“locally or regionally applicable” actions. See Sierra Club, 
+926 F. 3d, at 849. 
+B 
+We are unpersuaded by EPA's and the intervenors' coun­
+terarguments. EPA proffers its omnibus denial notices as 
+the relevant “actions” on the ground that it has the discretion 
+to structure its decisions. According to EPA, it is free to 
+“aggregate similar petitions for joint resolution” in a single 
+“action”—here, its omnibus Federal Register notices—given 
+its right as an agency “ `to fashion [its] own rules of proce­
+dure and to pursue methods of inquiry capable of permitting 
+[it] to discharge [its] multitudinous duties.' ” Brief for Peti­
+tioner 26–27 (quoting FCC v. Pottsville Broadcasting Co., 
+309 U. S. 134, 143 (1940)). But, whatever discretion EPA 
+has to manage its internal affairs, Congress conclusively de­
+fned the term “action” in § 7607(b)(1) to focus on the specifc 
+statutory authority EPA is exercising. 
+Tellingly, EPA's position that it can control the unit of “ac­
+tion” used to determine venue lacks any statutory limiting 
+principle. If EPA had free rein to group decisions into a 
+single “action” for venue purposes, then it could bundle even 
+unrelated matters into one Federal Register pronouncement 
+that is, in the aggregate, nationally applicable. Such a possi­
+bility would effectively give EPA a veto power over venue 
+under the CAA. We see no reason to read § 7607(b)(1) to 
+permit such gamesmanship. Absent indication that Con­
+gress meant to give a party unfettered control over venue, 
+we will not read a venue provision to confer such broad dis­
+cretion. Cf. Deal v. United States, 508 U. S. 129, 133–134 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+641 
+Opinion of the Court 
+(1993) (disfavoring a reading that would “give a prosecutor 
+unreviewable discretion” as to a sentencing enhancement's 
+applicability). 
+Because EPA does not dispute that the actions here can 
+be nationally applicable only if it is right that the omnibus 
+denial notices are the relevant “actions,” we need not resolve 
+EPA's remaining arguments. At a minimum, however, we 
+note that EPA's theory for distinguishing between nationally 
+applicable and locally or regionally applicable actions cannot 
+withstand scrutiny. EPA argues that any agency action is 
+nationally applicable if it affects more than one Circuit. 
+But, as we have recognized, the term “nationally applicable” 
+bears its ordinary meaning, supra, at 638, and EPA's view 
+would render actions with a plainly local or regional focus 
+“nationally applicable” simply because the locality or region 
+at issue straddles Circuit lines. For example, some EPA air 
+quality control regions cover metropolitan areas that extend 
+into two Circuits. It would defy credulity to say that an 
+EPA action regarding such a region would therefore be na­
+tionally applicable rather than locally or regionally applica­
+ble. Cf. Brief for Small Refnery Respondents 41 (“Can 
+there be any doubt that an EPA disapproval of a regional 
+implementation plan for only Region 90 (Metropolitan Kan­
+sas City) is a `regionally applicable' action . . . , even though 
+that action touches both the Eighth and Tenth Circuits?”). 
+Whatever the precise line should be, see n. 3, supra, EPA's 
+line cannot be it. 
+EPA justifes its position based on § 7607(b)(1)'s language 
+equating regional Circuit review with review in “the appro­
+priate circuit.” § 7607(b)(1) (emphasis added). To be re­
+viewable only in a single “appropriate circuit,” EPA con­
+tends, the category of “locally or regionally applicable” 
+actions must be limited to those actions affecting only one 
+Circuit. But, in the absence of other evidence, § 7607(b)(1)'s 
+use of the defnite article “the” is too thin a reed to support 
+EPA's conclusion. See 1 U. S. C. § 1 (directing that “words 
+Page Proof Pending Publication
+
+642 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+importing the singular include and apply to several persons, 
+parties, or things” “unless the context indicates otherwise”). 
+Finally, we fnd no merit in the intervenors' arguments for 
+why the denial of an individual refnery's exemption petition 
+should still be considered nationally applicable. According 
+to the intervenors, the individual denials are nationally ap­
+plicable because they have follow-on effects for the amount 
+of renewable fuel that must be produced under the RFP and 
+because EPA in issuing the denials announced a new stand­
+ard for adjudicating exemption petitions. But, again, we de­
+termine an action's range of applicability by “look[ing] only 
+to the face of the [action], rather than to its practical effects.” 
+American Road & Transp. Builders Assn., 705 F. 3d, at 456. 
+Any follow-on implications of EPA's denials have no bearing 
+on our analysis of their facial applicability. Cf. Sierra Club, 
+47 F. 4th, at 744 (“The fact that `EPA's interpretive reason­
+ing' may have `precedential effect in future EPA proceedings 
+. . . does not make [an action] nationally applicable' ”). 
+III 
+Because we conclude that EPA's actions were only locally 
+or regionally applicable, we must proceed to the second step 
+of the § 7607(b)(1) inquiry. That is, we ask whether the “na­
+tionwide scope or effect” exception applies to override the 
+default of regional Circuit review for locally or regionally 
+applicable actions. This exception channels an action to the 
+D. C. Circuit if (1) it “is based on a determination of nation­
+wide scope or effect,” and (2) “in taking such action [EPA] 
+fnds and publishes that such action is based on such a deter­
+mination.” § 7607(b)(1). Here, all agree that the second re­
+quirement is satisfed: EPA included the necessary fnding in 
+both its April and June denial notices. Supra, at 634–635. 
+Accordingly, the question before us is whether EPA's exemp­
+tion denials were “based on a determination of nationwide 
+scope or effect.” We conclude that they were. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+643 
+Opinion of the Court 
+A 
+Here too, we begin by laying out the framework for decid­
+ing whether an action is “based on a determination of nation­
+wide scope or effect.” We conclude that this requirement is 
+met if such a determination supplies a core justifcation for 
+EPA's action and that courts should evaluate the basis for 
+EPA's determinations de novo. Applying that framework, 
+we hold that this case is one in which the “nationwide scope 
+or effect” exception applies. 
+1 
+To understand the phrase “based on a determination of 
+nationwide scope or effect,” we again turn to ordinary mean­
+ing. Burrage, 571 U. S., at 210. In particular, we look to 
+the plain meaning of this phrase's component words, which 
+are all terms of everyday usage. And, we read these words 
+“in their context and with a view to their place in the overall 
+statutory scheme.” Davis v. Michigan Dept. of Treasury, 
+489 U. S. 803, 809 (1989). 
+To begin, a “determination” is the “settling and ending of 
+a controversy,” or “the resolving of a question by argument 
+or reasoning.” Webster's 616; see also 4 Oxford English 
+Dictionary 548 (2d ed. 1989) (“[t]he decision arrived at or 
+promulgated; a determinate sentence, conclusion, or opin­
+ion”). In an EPA action, EPA's underlying “determinations 
+are the justifcations [it] gives for the action,” which “can be 
+found in [its] explanation of its action.” Texas v. EPA, 829 
+F. 3d 405, 419 (CA5 2016). 
+In turn, a determination's “scope” and “effect” refer, re­
+spectively, to its “formal `area' of operation” and to its “ `op­
+erative infuence.' ” Kentucky, 123 F. 4th, at 465; see, e. g., 
+American Heritage Dictionary 1164 (1969) (defning “scope” 
+as the “area covered by a given activity or subject”); Web­
+ster's 724 (defning “effect” as “something that is produced 
+by an agent or cause”). An agency's determinations are of 
+Page Proof Pending Publication
+
+644 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+“nationwide” scope or effect if they apply “throughout [the] 
+entire nation.” Id., at 1505. Taken together, an agency ac­
+tion involves determinations of nationwide “scope” if they 
+apply throughout the country “as a legal matter (de jure)” 
+and determinations of nationwide “effect” if they so apply 
+“as a practical one (de facto).” Kentucky, 123 F. 4th, at 465. 
+Of course, nearly all agency actions can be said to involve 
+justifcations of nationwide reach or consequence. For ex­
+ample, most EPA actions presumably rely on EPA's interpre­
+tations of its governing statutes. 
+The key question, then, is the degree of causality con­
+tained in the phrase “based on.” And, the meaning of that 
+phrase is context dependent. In many cases, it “indicates a 
+but-for causal relationship.” Safeco Ins. Co. of America v. 
+Burr, 551 U. S. 47, 63 (2007). But-for causation is a compar­
+atively lenient standard, which is met so long as a result 
+“would not have occurred in the absence of—that is, but 
+for—[a party's] conduct.” Burrage, 571 U. S., at 211 (inter­
+nal quotation marks omitted). In other cases, however, 
+more is needed. Congress sometimes uses phrases such as 
+“based on” to cover only “core” causes amounting to an ac­
+tion's “sine qua non” or “ `gravamen.' ” See, e. g., Fry v. Na­
+poleon Community Schools, 580 U. S. 154, 167, 169 (2017); 
+OBB Personenverkehr AG v. Sachs, 577 U. S. 27, 35 (2015). 
+Section 7607(b)(1) incorporates the more demanding, 
+“core” understanding of “based on.” This constraint follows 
+from the function of the “nationwide scope or effect” excep­
+tion as just that—an exception. Congress, after all, is un­
+likely to intend for an exception to swallow the rule. See 
+Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 
+605 U. S. 280, 298–299 (2025). Thus, in this context, but-for 
+causation is inadequate: In almost any case, a determination 
+of nationwide scope or effect will be at least a but-for cause 
+of EPA's action, given that any EPA action is downstream 
+of EPA's conclusions as to what its governing statutes permit 
+or require. But, Congress made regional Circuit review the 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+645 
+Opinion of the Court 
+default for locally or regionally applicable actions, so we 
+must read the “nationwide scope or effect” exception in a 
+way that preserves regional Circuit review as the norm. 
+It follows that an EPA action is “based on” a particular 
+determination only if that determination “lie[s] at the core of 
+the agency action,” so as to form the most important part of 
+the agency's reasoning. Texas, 829 F. 3d, at 419. Put more 
+concretely, an EPA action is based on a determination of na­
+tionwide scope or effect only if a justifcation of nationwide 
+breadth is the primary explanation for and driver of EPA's 
+action. A determination of nationwide scope or effect does 
+not rise to this level if EPA also relied in signifcant part on 
+other, “intensely factual” considerations, or if the key driver 
+of EPA's action is otherwise debatable. Id., at 421; see also 
+id., at 419 (“The default presumption is that petitions for 
+review of locally or regionally applicable actions `may only 
+be fled in the United States Court of Appeal for the appro­
+priate circuit' ”). 
+2 
+In deciding whether a particular EPA action is “based on 
+a determination of nationwide scope or effect,” courts should 
+assess EPA's reasoning de novo. This standard follows from 
+the structure of the “nationwide scope or effect” exception: 
+The exception applies only “if ” a locally or regionally appli­
+cable action is based on a determination of nationwide scope 
+or effect “and if ” EPA, in taking the action, fnds and pub­
+lishes that the action has this basis. § 7607(b)(1) (emphasis 
+added). In other words, the CAA requires both that EPA 
+deem its action to have a qualifying basis and that the action 
+in fact have this basis. This dual formulation does not natu­
+rally suggest that courts should simply give EPA's fnding 
+deference. Cf. Regalado Cuellar v. United States, 553 U. S. 
+550, 565 (2008) (fnding it “implausible” to infer that Con­
+gress intended a particular meaning, where it used a “more 
+complex formulation”). 
+Page Proof Pending Publication
+
+646 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+The upshot is that courts must “make an independent as­
+sessment of the scope of [EPA's] determinations.” Texas, 
+829 F. 3d, at 421. That is, they should parse the reasoning 
+offered by EPA in taking an action to decide which determi­
+nations primarily drove the action. Courts routinely ana­
+lyze flings to identify their substance, and the language of 
+the “nationwide scope or effect” exception directs them to 
+do the same here. 
+In so holding, we do not downplay the importance of EPA's 
+role. Because the “nationwide scope or effect” exception 
+can apply only when “EPA so fnds and publishes” that it 
+does, EPA can decide whether the exception is even poten­
+tially relevant. Sierra Club, 47 F. 4th, at 746. And, where 
+EPA does invoke the exception, its explanation for doing so 
+will at a minimum focus the courts' assessment of the possi­
+ble determinations of nationwide scope or effect.4 
+Thus, 
+EPA's choices will matter, even as courts must assess the 
+bases for EPA's actions themselves. 
+3 
+Applying this framework, we conclude that EPA's denials 
+of the small refneries' exemption petitions were based on 
+determinations of nationwide scope or effect. We agree 
+with EPA's fnding—published in both its April and June de­
+nial notices—that its interpretation of the phrase “dispropor­
+tionate economic hardship” under § 7545(o)(9)(B)(i) and its 
+RIN passthrough theory were determinations of nationwide 
+4 This case does not present the question whether, given principles of 
+issue preservation, courts can forgo consideration of determinations that 
+EPA has not itself identifed as the basis for its action. Cf. SEC v. Chen­
+ery Corp., 318 U. S. 80, 88 (1943) (confning review of agency action “to a 
+judgment upon the validity of the grounds upon which the [agency] itself 
+based its action”). But, we expect this issue to be outcome dispositive 
+only in rare cases. As a practical matter, an action is unlikely to be based 
+on a particular determination where EPA has failed, in promulgating the 
+action, to identify that determination as the relevant determination of na­
+tionwide scope or effect. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+647 
+Opinion of the Court 
+scope or effect that formed the core basis for EPA's denials. 
+Supra, at 634–635. 
+Both conclusions are clear determinations of nationwide 
+scope or effect: EPA invoked both its statutory interpreta­
+tion and its passthrough theory in justifying its denials, and 
+both points apply generically to all refneries, regardless of 
+their geographic location. After all, the CAA is a federal 
+statute, and § 7545(o)(9)(B)(i) by its terms applies nation­
+wide. Likewise, EPA's RIN passthrough theory is a fnding 
+about how the national refnery market works. See supra, 
+at 634. 
+These conclusions also can be deemed the “basis” for 
+EPA's denials here. EPA decided, in light of the foregoing 
+determinations, that it would presumptively deny all the ex­
+emption petitions before it. Supra, at 634. It then consid­
+ered other, refnery-specifc considerations only to confrm 
+that it had no reason to depart from its presumptive disposi­
+tion. Supra, at 634–635. In this posture, EPA's statutory 
+interpretation and passthrough theory plainly are the most 
+important parts of its reasoning. Or, put another way, 
+where EPA relies on determinations of nationwide scope or 
+effect to reach a presumptive resolution, those determina­
+tions qualify as the primary driver of its decision. EPA's 
+confrmatory review of refnery-specifc facts is “[m]erely pe­
+ripheral” by comparison. Texas, 829 F. 3d, at 419. 
+Accordingly, we agree with EPA that the “nationwide 
+scope or effect” exception applies here. The Fifth Circuit 
+should have transferred this case. 
+B 
+We are unpersuaded by the counterarguments raised by 
+EPA, respondents, the Fifth Circuit, and the dissent. 
+Although we agree with EPA's bottom-line position that 
+the “nationwide scope or effect” exception applies, we reject 
+its roundabout approach to the word “determination.” EPA 
+argues that “[t]he word `determination' ” in § 7607(b)(1) “sug­
+Page Proof Pending Publication
+
+648 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Opinion of the Court 
+gests a resolution of an unsettled issue,” such that EPA does 
+not make “determinations” when it “applies a previously es­
+tablished agency rule, policy, or interpretation to new . . . 
+circumstances.” Brief for Petitioner 41. We agree with 
+EPA that a “determination” here means the “ `settling and 
+ending of a controversy,' ” ibid.; supra, at 643, but nothing 
+in that term or its use in § 7607(b)(1) suggests that only novel 
+conclusions count. Rather, given § 7607(b)(1)'s focus on the 
+face of the agency action, “determination” is most naturally 
+read to cover any EPA conclusion within the four corners of 
+an action. 
+Moreover, we do not see how EPA's proposed approach 
+can be squared with its requested disposition. If a “deter­
+mination” covers only the resolution of an unsettled issue, it 
+is not obvious why EPA's June denials contain any determi­
+nations: EPA's June notice purported to “appl[y] the ap­
+proach . . . adopted in the April” notice. App. to Pet. for 
+Cert. 80a. EPA attempts to avoid this diffculty by propos­
+ing a holistic assessment of novelty that considers factors 
+such as “whether EPA announced the rule or policy at 
+roughly the same time as the challenged agency action it­
+self.” Brief for Petitioner 41. But, we do not see how this 
+amorphous test follows even from EPA's view.5 
+Respondents argue that the word “determination” in 
+§ 7607(b)(1) is a term of art, wherein an agency action can 
+trigger the “nationwide scope or effect” exception only if it 
+is undertaken based on a CAA provision that “textually di­
+rect[s] EPA to make a `determination' for the entire nation.” 
+Brief for Small Refnery Respondents 32 (emphasis deleted). 
+But, “determination” is “hardly a rarely used word,” and 
+nothing in the CAA's context suggests that Congress meant 
+5 EPA also contends that § 7607(b)(1)'s “based on” language speaks in 
+terms of but-for causation and that courts should assess the basis for 
+EPA's actions deferentially, through arbitrary-and-capricious review. For 
+the reasons already explained, we reject those contentions. Supra, at 
+644–645. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+649 
+Opinion of the Court 
+for its use in § 7607(b)(1) to reach only CAA provisions that 
+happen to use some variant of that word. Bruesewitz v. 
+Wyeth LLC, 562 U. S. 223, 235 (2011). Such a limitation 
+would at best lead to arbitrary outcomes, as Congress did 
+not act in a standardized way when using “determination” 
+as opposed to other words. Compare § 7410(k)(3) (not 
+speaking in terms of “determinations”) with § 7410(k)(6) (re­
+quiring a “determination” when EPA “[c]orrect[s]” its ac­
+tions under § 7410(k)(3)). At worst, respondents' approach 
+would render the “nationwide scope or effect” exception 
+meaningless: Respondents have conceded that their term-of­
+art view may render the exception “a null set, or close to a 
+null set.” Tr. of Oral Arg. 103–104. But, Congress would 
+not have gone to the trouble of creating a superfuous excep­
+tion, so we will not “force [a] term-of-art defnitio[n]” where 
+it “plainly do[es] not ft.” Gonzales v. Oregon, 546 U. S. 243, 
+282 (2006) (Scalia, J., dissenting). 
+The dissent would similarly limit the “nationwide scope or 
+effect” exception to reach only statutorily enumerated deter­
+minations, but its arguments fare no better. The dissent 
+highlights that various CAA substantive provisions require 
+EPA to make particular “determinations” before taking an 
+action. Post, at 653–655, 659–660 (opinion of Gorsuch, J.). 
+But, it does not follow that Congress meant to encompass only 
+statutorily enumerated determinations when it spoke gener­
+ally in the exception of actions “based on a determination of 
+nationwide scope or effect.” § 7607(b)(1) (emphasis added). 
+And, although some statutes “ `distinguis[h] between “consid­
+erations” that inform [a] “determination” and the “determina­
+tion” itself,' ” post, at 659–660 (quoting Commissioner v. 
+Zuch, 605 U. S. 422, 429 (2025); alterations in original), stat­
+utes like the one in Zuch use “determination” to refer to an 
+agency's ultimate decision, see id., at 428–429. In asking 
+whether a determination supplies the basis for an EPA ac­
+tion, § 7607(b)(1) uses the term in a different sense. Like­
+wise, the dissent's concern that our test could be diffcult for 
+Page Proof Pending Publication
+
+650 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+“lower courts and lawyers to apply” is not a problem of our 
+creation. Post, at 660. Insofar as the reticulated venue 
+framework that Congress enacted creates diffculty for 
+courts or litigants, “it is a problem for Congress, not one 
+that federal courts can fx.” Lewis v. Chicago, 560 U. S. 205, 
+217 (2010). 
+Finally, we are unpersuaded by respondents' argument, 
+accepted by the Fifth Circuit, that the “nationwide scope or 
+effect” exception is inapplicable in light of EPA's consider­
+ation of refnery-specifc facts. That exception requires that 
+an EPA action be “based on” a determination of nationwide 
+scope or effect, in contrast to another part of § 7607(b)(1) 
+where Congress used the phrase “based solely on.” Accord­
+ingly, EPA's consideration of local facts does not preclude its 
+invocation of the exception, either generally or here. So 
+long as a determination of nationwide scope or effect served 
+as the primary driver of EPA's action, other, more “periph­
+eral” determinations “are not relevant” for venue purposes. 
+Texas, 829 F. 3d, at 419. 
+*
+*
+* 
+We agree with the Fifth Circuit that EPA's actions here 
+are only locally or regionally applicable, although we clarify 
+that the relevant actions are EPA's individual denials of the 
+small refneries' exemption petitions. But, under a proper 
+understanding of § 7607(b)(1), the “nationwide scope or ef­
+fect” exception applies, and the case belongs in the D. C. 
+Circuit. The Fifth Circuit therefore erred in denying EPA's 
+request to transfer. The judgment of the Court of Appeals 
+is vacated, and the case is remanded for further proceedings 
+consistent with this opinion. 
+It is so ordered. 
+Justice Gorsuch, with whom The Chief Justice joins, 
+dissenting. 
+Though I would reach a different judgment, the Court and 
+I travel much of the way together. This case involves six 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+651 
+Gorsuch, J., dissenting 
+small refneries. Each petitioned the Environmental Pro­
+tection Agency for a hardship exemption from the Clean Air 
+Act's renewable fuel mandates. The agency denied all six 
+refneries' petitions. The question we face does not concern 
+the merits of what EPA did, only where the small refneries' 
+lawsuit challenging the agency's actions should be heard. 
+The Act instructs that litigation over “nationally applicable” 
+EPA “actions” belongs in the D. C. Circuit, while disputes 
+over “locally or regionally applicable” agency “actions” gen­
+erally belong in a regional circuit. 42 U. S. C. § 7607(b)(1). 
+In Parts I and II of its opinion, the Court concludes that 
+these rules presumptively route the dispute before us to a 
+regional circuit because EPA's decision to deny an individual 
+refnery's petition for a hardship exemption is a “locally or 
+regionally applicable” action. With all that, I agree. 
+But then, in Part III of its opinion, the Court pivots. 
+Even when a case challenges only a “locally or regionally 
+applicable” action, the Court observes, the Act routes it to 
+the D. C. Circuit if EPA's action “is based on a determination 
+of nationwide scope or effect.” Applying a new multistep 
+test it announces, the Court concludes that EPA's actions at 
+issue here were based on such a determination. As a result, 
+the Court holds, the right venue for this case turns out to be 
+the D. C. Circuit after all. 
+In my view, that pivot is a mistake. The Clean Air Act's 
+venue provision works in harmony with its substantive pro­
+visions. Throughout, those substantive provisions direct 
+EPA to make certain “determinations” before it may take 
+certain “actions.” When it comes to acting on a small re­
+fnery's hardship petition, nothing in the Act's substantive 
+provisions calls on EPA to make a “determination of nation­
+wide scope or effect.” Instead, the Act requires the agency 
+to evaluate only whether a particular small refnery seeking 
+an exemption would suffer a hardship without one. Accord­
+ingly, the Act's venue provision routes this dispute to a re­
+gional circuit, just as the Fifth Circuit recognized below. 
+Page Proof Pending Publication
+
+652 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+The Court's new and reticulated test for assessing venue dis­
+putes under the Act strikes me as both mistaken and likely 
+to render simple venue questions unnecessarily diffcult and 
+expensive to resolve. 
+I 
+Start with how I would analyze this case. The Clean Air 
+Act's venue provision, found in 42 U. S. C. § 7607(b)(1), sup­
+plies three basic rules. First, challenges to “nationally ap­
+plicable” agency “action[s]” must be brought in the D. C. Cir­
+cuit. Second, challenges to “locally or regionally” applicable 
+agency “action[s]” must be fled in the appropriate regional 
+circuit. Third, as an exception to the second rule, challenges 
+to locally or regionally applicable agency actions belong in 
+the D. C. Circuit if they are “based on a determination of 
+nationwide scope or effect.” 1 
+The central question this case 
+poses concerns the relationship between the second and third 
+rules: When is a locally or regionally applicable “action” 
+under the Clean Air Act “based on a determination of nation­
+wide scope or effect”? 
+As I see it, the Act itself supplies the answer. Working in 
+concert with the Act's venue provision, the Act's substantive 
+provisions tell us what kinds of “actions” the agency is law­
+fully authorized to take and when those actions may be based 
+on “determinations of nationwide scope or effect.” Here, 
+the relevant substantive provisions permit EPA to take a 
+specifc “action”—namely, the granting or denying of a small 
+refnery's hardship petition. But, by their terms, those pro­
+visions do not call for a nationwide “determination” when 
+the agency acts. Instead, the only decisions EPA must 
+make are refnery-specifc ones. Accordingly, the dispute 
+before us belongs in an appropriate regional circuit. 
+1 To implicate this exception, EPA must also certify its belief that its 
+action “is based on . . . a determination” of nationwide scope or effect. 
+§ 7607(b)(1). But that requirement is irrelevant in this case because all 
+agree that EPA satisfed it, so I will not address it further. Ante, at 642. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+653 
+Gorsuch, J., dissenting 
+A 
+To appreciate how the Act's substantive and venue provi­
+sions interact, begin with a look at the substantive provi­
+sions addressing the renewable fuel standards that lie at the 
+heart of this case. 
+As a rule, § 7545(o)(2) requires the Nation's fuel supply to 
+include ethanol or other renewable fuels in fxed amounts 
+that increase over time. See HollyFrontier Cheyenne Re­
+fning, LLC v. Renewable Fuels Assn., 594 U. S. 382, 385– 
+386 (2021). But the Act also permits EPA to take various 
+actions inconsistent with that general rule if it makes certain 
+determinations. So, for example, § 7545(o)(7)(A)(i) allows 
+EPA to waive some renewable fuel mandates “based on a 
+determination” that enforcing them “would severely harm 
+the economy or environment of a State, a region, or the 
+United States.” Similarly, EPA may waive renewable fuel 
+requirements “based on a determination . . . that there is 
+an inadequate domestic [fuel] supply.” § 7545(o)(7)(A)(ii). 
+Similarly again, §§ 7545(c)(4)(C)(ii) and (iii) permit EPA to 
+waive other standards if it “determines that . . . extreme and 
+unusual . . . circumstances exist in a State or region.” Be­
+yond those examples, § 7545 discusses various other actions 
+the agency may take after making various other determina­
+tions. (In all, § 7545 uses the word “determination” or one 
+of its cognates more than 70 times.) 
+Now apply these observations about § 7545's substantive 
+provisions to the Act's venue provision. If, for example, 
+EPA waives a renewable fuel standard for a single State 
+under § 7545(o)(7)(A)(i) “based on a determination” that “im­
+plement[ing]” those standards “would severely harm the 
+economy . . . of a State,” § 7607(b)(1) would route disputes 
+over that action to the appropriate regional circuit. After 
+all, a determination about the economy of a particular State 
+is hardly one of “nationwide scope or effect.” § 7607(b)(1). 
+On the other hand, if EPA issues such a waiver based on a 
+“determination” that implementing the renewable fuel stand­
+Page Proof Pending Publication
+
+654 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+ard in question “would severely harm the economy [of] the 
+United States,” § 7607(b)(1) would channel any litigation over 
+that action to the D. C. Circuit. 
+The substantive provisions at issue in today's companion 
+case illustrate the same point. That litigation revolves 
+around federal air quality standards and the State Imple­
+mentation Plans (SIPs) States must prepare to meet them. 
+See Oklahoma v. EPA, 605 U. S. 609, 615 (2025). Section 
+7410 sets forth the general rules about what SIPs must con­
+tain and how EPA must go about assessing them. But that 
+section also authorizes EPA to take certain actions inconsist­
+ent with those rules after making certain determinations. 
+(For its part, § 7410 uses “determination” or one of its cog­
+nates more than 20 times.) So, for example, § 7410(b) per­
+mits EPA to “extend the period for [the] submission of any” 
+SIP for up to 18 months “wherever [the EPA Administrator] 
+determines necessary.” And § 7410(g) allows EPA to “dis­
+approv[e]” a Governor's decision to suspend a SIP component 
+if the agency “determines” that his decision “does not meet” 
+certain statutory criteria (including whether the suspen­
+sion is necessary “to prevent substantial increases in 
+unemployment”). 
+Now consider where the Act's venue provision sends dis­
+putes about EPA actions under these substantive provisions. 
+Suppose EPA determines that it is “necessary” to extend 
+the submission deadline for SIPs across the country, and the 
+agency acts accordingly pursuant to § 7410(b). In those cir­
+cumstances, an argument might be made that § 7607(b)(1) 
+routes disputes about that action to the D. C. Circuit. Cf. 
+Kentucky v. EPA, 123 F. 4th 447, 466 (CA6 2024). But if 
+EPA acts pursuant to § 7410(g) to countermand a Governor's 
+decision to suspend a SIP component based on a determina­
+tion that his decision defes the Act's terms, § 7607(b)(1) 
+would likely send any dispute over that action to a regional 
+circuit. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+655 
+Gorsuch, J., dissenting 
+B 
+With that much in hand, return to the question whether 
+the Act's venue provision directs this lawsuit to a regional 
+circuit or the D. C. Circuit. 
+As we have seen, § 7545 lays out the Act's substantive re­
+newable fuel standards and generally requires refneries to 
+mix a certain (and regularly increasing) amount of renewable 
+fuels into the transportation fuel they produce. See Part I– 
+A, supra; HollyFrontier, 594 U. S., at 385–386. But § 7545 
+also allows EPA to exempt small refneries from these man­
+dates “for the reason of disproportionate economic hardship.” 
+§ 7545(o)(9)(B)(i). Seeking to take advantage of this provi­
+sion, the six small refneries before us individually petitioned 
+EPA for hardship exemptions. See 86 F. 4th 1121, 1129– 
+1130 (CA5 2023). In the end, the agency denied each refn­
+ery's request. App. to Pet. for Cert. 251a–252a; id., at 305a– 
+310a. Now, the small refneries seek to challenge EPA's 
+actions in court. That challenge belongs in a regional circuit 
+because nothing in the Act's relevant substantive provisions 
+calls for EPA to act on a determination of nationwide scope 
+or effect. 
+Just walk through the substantive provisions addressing 
+small refneries one by one. To account for the fact that 
+small refneries may have more diffculty meeting evolving 
+renewable fuel mandates than their larger rivals, Congress 
+in 2005 granted them a blanket exemption until 2011. See 
+§ 7545(o)(9)(A); HollyFrontier, 594 U. S., at 386–387. After 
+that, Congress directed EPA to extend a small refnery's ex­
+emption “for a period of not less than 2 additional years” if 
+the “Secretary of Energy determines” that the refnery in 
+question “would be subject to a disproportionate economic 
+hardship if required to comply” with the Act's renewable fuel 
+mandates. § 7545(o)(9)(A)(ii)(II). Even beyond that, Con­
+gress permitted a small refnery to petition “at any time” for 
+“an extension” of its “exemption . . . for the reason of 
+Page Proof Pending Publication
+
+656 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+disproportionate economic hardship.” § 7545(o)(9)(B)(i). 
+When it comes to deciding whether to grant or deny such a 
+petition, the Act directs EPA to “consul[t] with the Secretary 
+of Energy,” consider his “determin[ation]” whether “a” par­
+ticular “small refnery” would suffer “disproportionate eco­
+nomic hardship if required to comply,” and consider “other 
+economic factors.” §§ 7545(o)(9)(A)(ii), (B)(ii). Nowhere 
+does the Act call for a determination of nationwide scope or 
+effect. To the contrary, after the blanket exemption for 
+small refneries expired in 2011, all agency actions and deter­
+minations became refnery-specifc ones. 
+Any doubt on that score is resolved by comparing these 
+substantive provisions with others we have encountered. 
+Section 7545(o)(7)(A), remember, allows EPA to waive cer­
+tain renewable fuel standards “based on a determination . . . 
+that implementation of the requirement would severely harm 
+the economy or environment of . . . the United States,” or 
+“based on a determination . . . that there is an inadequate 
+domestic [fuel] supply.” As that provision illustrates, when 
+it wished to do so, Congress knew how to say that EPA may 
+take a certain action based on a determination of nationwide 
+scope or effect. That we have nothing like that here is a 
+telling sign that the small-refnery provisions work differ­
+ently and do not task EPA with taking any nationally appli­
+cable action or making any determination of nationwide 
+scope or effect. See Feliciano v. Department of Transpor­
+tation, 605 U. S. –––, ––– (2025). 
+EPA's own statements convey the same message. The 
+agency represents that it “ `consider[s] each petition on the 
+merits' ” and examines “ `individual refnery information' ” 
+when passing on individual hardship petitions. 86 F. 4th, at 
+1133. EPA represents, too, that it “determined that none of 
+the petitioning small refneries” merited a hardship exemp­
+tion only after completing “a thorough evaluation of the data 
+and information provided” by each small refnery. Brief for 
+Petitioner 10; App. to Pet. for Cert. 94a–95a. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+657 
+Gorsuch, J., dissenting 
+To be sure, EPA also highlights two features of its adminis­
+trative proceedings that, it says, prove the agency took a “na­
+tionally applicable action,” or at least made a “determination 
+of nationwide scope or effect.” For one, EPA emphasizes 
+that it bundled the petitions from the six small refneries before 
+us together with a host of other similar petitions and dis­
+patched them all in a pair of administrative decisions. See 
+Brief for Petitioner 28; 86 F. 4th, at 1129–1130. For another, 
+the agency stresses that, in evaluating each refnery's petition, 
+it relied on a single interpretation of the statutory phrase “ `dis­
+proportionate economic hardship' ” and a single economic 
+model (the agency's “RIN passthrough theory”). Ante, at 634. 
+The Court correctly holds that none of this transforms 
+EPA's challenged actions into “nationally applicable” actions. 
+Ante, at 640. Yes, the agency may choose to bundle peti­
+tions together for administrative convenience. And, yes, the 
+agency may apply similar reasoning when faced with similar 
+petitions. But, as the Court recognizes, the only “action” 
+the Act's substantive provisions call on EPA to take is to 
+grant or deny an individual hardship petition—and that is a 
+locally applicable action, not a national one. Ibid. 
+As I see it, this same insight defeats EPA's suggestion that 
+its actions were “based on a determination of nationwide 
+scope or effect.” § 7607(b)(1). As a matter of administra­
+tive convenience, the agency may choose to address a num­
+ber of petitions collectively rather than separately. And the 
+agency of course may (and, to avoid acting arbitrarily and 
+capriciously, generally must) apply consistent reasoning to 
+like petitions. But the Act's venue provision does not route 
+cases to one circuit or another based on how EPA packages 
+them or the quality or nature of its reasoning. Instead, the 
+Act's venue provision asks whether the agency based its ac­
+tion on a determination of nationwide scope or effect. And, 
+as the Act's substantive provisions make clear, EPA does no 
+such thing when it passes on an individual small refnery's 
+hardship petition. 
+Page Proof Pending Publication
+
+658 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+II 
+Turn now to how the Court resolves this case. As we 
+have seen, the Court frst holds that EPA's decision whether 
+to grant or deny an individual small refnery's hardship peti­
+tion is a locally or regionally applicable “action.” See Part 
+II, ante. Accordingly, the Court starts with the (correct) 
+presumption that the suit before us belongs in a regional 
+circuit. Ibid. But then, the Court reverses course. While 
+EPA's challenged actions are local or regional ones, the 
+Court concludes, this case belongs in the D. C. Circuit be­
+cause the agency's actions were “based on a determination 
+of nationwide scope or effect.” See Part III, ante. That 
+portion of the Court's opinion strikes me as both mistaken 
+and likely to cause confusion about where Clean Air Act dis­
+putes should be heard. 
+To understand why, consider how the Court proceeds. 
+Pursuing what it calls an “ordinary-meaning” approach, the 
+Court observes that the word “determination” often refers 
+to the “ `settling and ending of a controversy.' ” Ante, at 643 
+(quoting Webster's Third New International Dictionary 616 
+(1976)). Extrapolating from that dictionary defnition, the 
+Court reasons that “any EPA conclusion within the four 
+corners of an action” qualifes as a “determination.” Ante, 
+at 648 (emphasis added). 
+But, the Court continues, whether an action is “ `based 
+on' ” a conclusion of nationwide scope or effect depends on a 
+“degree of causality.” Ante, at 644. Nor will just any 
+degree of causality do. Proving that some nationwide con­
+clusion (or now, the Court adds, “justifcation” or “reason­
+ing”) is the “but-for” cause of the agency's action will not 
+suffce. Ante, at 644–645. Instead, EPA must establish 
+that some nationwide conclusion (or justifcation or reason­
+ing) qualifes as the “gravamen” or “core” or “driver” of its 
+action. Ibid. (internal quotation marks omitted). And 
+when EPA's actions rely “in signifcant part on . . . `intensely 
+factual' considerations” or when “the key driver of EPA's 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+659 
+Gorsuch, J., dissenting 
+action is otherwise debatable,” that standard will not be sat­
+isfed. Ante, at 645. 
+Applying all those ideas to this case, the Court holds that 
+all of EPA's challenged actions were based on a determina­
+tion of nationwide scope or effect. That is so, the Court 
+says, because EPA's actions (its decisions to deny the small 
+refneries' petitions) rested at their “core” on a common (or 
+“nationwide”) understanding of the statutory phrase “ `dis­
+proportionate economic hardship' ” and a common (or “na­
+tionwide”) economic model. Ante, at 646–647 (quoting 
+§ 7545(o)(9) (B)(i)). To be sure, the Court acknowledges, the 
+agency also undertook a “review of refnery-specifc facts.” 
+Ante, at 647. But on the Court's account, those “refnery­
+specifc facts” mattered less to the outcomes here than EPA's 
+statutory interpretation and its economic model. Ibid. 
+I fnd that chain of reasoning unpersuasive for a few rea­
+sons. For one thing, it seems to me pretty far afeld from 
+the statutory text. As we have seen, the Clean Air Act's 
+venue provision speaks of actions and determinations, and 
+the Act's substantive provisions do too. And when a sub­
+stantive provision calls for either a nationally applicable “ac­
+tion” or a “determination” of nationwide scope or effect, it 
+says so. To decide where a case belongs, then, no special 
+judicially devised test is required. Instead, lawyers and 
+judges need only open the statute books, fnd the relevant 
+substantive provision, and follow its lead. As we have seen, 
+the Court takes just this approach when addressing the 
+meaning of the term “action” in the Act's venue provision. 
+There, it concludes EPA took no nationally applicable “ac­
+tion” because the Act's substantive provisions “pe[g]” an ac­
+tion to a decision to grant or deny an individual hardship peti­
+tion. Ante, at 639–640; see Part I–B, supra. On my view, we 
+should employ that same statute-driven approach to the 
+meaning of “a determination of nationwide scope or effect.” 
+For another thing, the Court's test confates a determina­
+tion with the reasons that inform it. Statutes often “distin­
+Page Proof Pending Publication
+
+660 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+guis[h] between `considerations' that inform [a] `determina­
+tion' and the `determination' itself.” Commissioner v. 
+Zuch, 605 U. S. 422, 429 (2025) (alteration omitted). The 
+Clean Air Act is no different. It authorizes EPA to take 
+certain actions (like waiving renewable fuel mandates or dis­
+approving a single Governor's suspension of a SIP compo­
+nent). The Act authorizes those actions if certain determi­
+nations are made (like a determination that enforcing the 
+renewable fuel mandates would severely harm the national 
+economy or a determination that a Governor's partial SIP 
+suspension doesn't satisfy certain criteria). And to support 
+its determinations, the agency may offer any number of rea­
+sons. To avoid accusations of arbitrary and capricious deci­
+sionmaking, too, the agency will usually employ consistent 
+reasoning in like cases. See, e. g., Encino Motorcars, LLC 
+v. Navarro, 579 U. S. 211, 222 (2016). But none of that 
+means we should confate the determinations EPA must 
+make under the Act with the reasons the agency offers to 
+support them. 
+For another thing still, I worry that the Court's test will 
+prove tough for lower courts and lawyers to apply in prac­
+tice. Having confated a “determination” with the agency's 
+underlying reasoning, the Court must fnd some way to go 
+about sorting and weighing all the reasons EPA may ad­
+vance. But just consider what its approach entails. First, 
+lawyers and judges must consult the full scope of the 
+agency's reasoning (in this case, reasoning that runs over 280 
+pages). See App. to Pet. for Cert. 44a–330a. Next, lawyers 
+and judges must “parse” out which aspects of that reasoning 
+are particular to a locality or region and which are national 
+in scope or effect. Ante, at 646. Finally, lawyers and 
+judges must weigh those two sets of reasons against each 
+other and decide which set was the true “driver” of the 
+agency's decision and which was more “peripheral” to it. 
+Ante, at 647 (internal quotation marks omitted). 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+661 
+Gorsuch, J., dissenting 
+“ `[L]itigation over whether the case is in the right court 
+is essentially a waste of time and resources.' ” Navarro 
+Savings Assn. v. Lee, 446 U. S. 458, 464, n. 13 (1980). When 
+it comes to the simple preliminary question where a case 
+should be fled, the rules of the road should be “clear and 
+easy to apply.” Hamer v. Neighborhood Housing Servs. of 
+Chicago, 583 U. S. 17, 25 (2017); see Hertz Corp. v. Friend, 
+559 U. S. 77, 94–95 (2010). The test the Court announces 
+today can claim neither of those virtues. For the lawyers 
+and judges tasked with applying it, I can only wish them 
+luck. 
+III 
+To get a sense of the challenges the Court's test poses for 
+future litigants and lower courts, compare this case to its 
+companion. See Oklahoma v. EPA, 605 U. S. 609 (2025). 
+As we have seen, that dispute involves SIPs, plans States 
+must submit to EPA outlining how they intend to comply 
+with national air quality standards. See Part I–A, supra; 
+§ 7410. Among other things, a State's SIP must address the 
+Act's “Good Neighbor Provision.” Ohio v. EPA, 603 U. S. 
+279, 283–284 (2024). Because “air currents can carry pollu­
+tion across state borders,” id., at 283, that provision requires 
+each SIP to contain “adequate” measures to prevent in-state 
+“emissions activity” from interfering with other States' abil­
+ity to satisfy federal air quality standards, § 7410(a)(2)(D). 
+In a single rule, EPA rejected 21 SIPs—including Utah's and 
+Oklahoma's—because, in the agency's view, none satisfed the 
+Act's Good Neighbor provision. Oklahoma, 605 U. S., at 616 
+(citing 88 Fed. Reg. 9336 (2023)). Now, Oklahoma, Utah, and 
+certain industry groups seek to challenge EPA's actions in 
+court, and they argue that their litigation belongs in a re­
+gional circuit. Oklahoma, 605 U. S., at 617. 
+EPA responds that the SIPs case is, in every way that 
+matters, like the small refneries' case and thus belongs in 
+the D. C. Circuit too. After all, the agency points out, it 
+Page Proof Pending Publication
+
+662 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+employed a common statutory interpretation and a common 
+methodology to assess each State's proposed SIP—just as it 
+did when considering the small refneries' petitions. If the 
+one case belongs in the D. C. Circuit, EPA argues, so must 
+the other. See Brief for Federal Respondents in No. 23– 
+1067 etc., pp. 30, 34–36; Tr. of Oral Arg. in Oklahoma v. EPA, 
+O. T. 2024, No. 23–1067 etc., pp. 39, 47. 
+Along those lines, EPA observes that, in assessing each 
+SIP, it asked whether the state plan before it would contrib­
+ute more than “1% of the permissible ozone level to a down­
+wind State.” Oklahoma, 605 U. S., at 624–625; Brief for 
+Federal Respondents in No. 23–1067 etc., at 9, 35. In prac­
+tice, EPA argues, that 1% threshold proved critical. SIPs 
+that “fell under the 1 percent de minimis threshold” were 
+“approved on [that] ground.” Tr. of Oral Arg. in No. 23– 
+1067 etc., at 38–39. Meanwhile, all (or nearly all) the SIPs 
+that exceeded the 1% threshold—including Oklahoma's and 
+Utah's—were rejected. See Brief for Federal Respondents 
+in No. 23–1067 etc., at 7; Brief for State of New York et al. 
+as Amici Curiae in No. 23–1067 etc., pp. 24–25, n. 20. Ac­
+cordingly, the agency argues, even if it took a local or re­
+gional “action” with respect to each SIP, nationwide deter­
+minations 
+proved 
+“essential 
+to 
+EPA's 
+reasoning 
+in 
+disapproving the state plans.” Brief for Federal Respond­
+ents in No. 23–1067 etc., at 37. 
+The Court disagrees. As it must under the test it an­
+nounces, the Court begins by consulting all the various rea­
+sons EPA offered (some 60-plus pages of them appear in the 
+Federal Register). Oklahoma, 605 U. S., at 622–625.2 
+In 
+doing so, the Court acknowledges that EPA used a common 
+(or nationwide) statutory interpretation and a common (or 
+nationwide) methodology when assessing all of the SIPs. 
+See id., at 621. The Court recognizes, too, that the 1% 
+2 See 88 Fed. Reg. 9336 (omnibus rule); 87 Fed. Reg. 31470 (2022) (Air 
+Plan Disapproval; Utah); id., at 9798 (Air Plan Disapproval; Arkansas, 
+Louisiana, Oklahoma, and Texas). 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 627 (2025) 
+663 
+Gorsuch, J., dissenting 
+threshold played a signifcant role in separating the SIPs 
+EPA approved from those it rejected. See id., at 624–625. 
+Still, when it comes to weighing the role that EPA's common 
+(or nationwide) justifcations played, the Court concludes, 
+they were not the “primary drivers” of the agency's chal­
+lenged actions. Id., at 624. Instead, “factual determina­
+tions particular to the State at issue” predominated. Id., 
+at 622 (internal quotation marks omitted). Relying on that 
+assessment, the Court holds that Oklahoma's and Utah's law­
+suit challenging EPA's rejection of their SIPs belongs in a 
+regional circuit. Id., at 625. 
+Maybe that's right. But I can certainly imagine arriving 
+at the opposite outcome under the Court's test. After all, 
+EPA used a common statutory interpretation and a common 
+methodology when assessing all of the SIPs, proceeding 
+much as it did when evaluating the small refneries' hardship 
+petitions. In both cases, too, the agency factored in certain 
+local considerations, like individual “Stat[e] circumstances” 
+in the SIPs case, id., at 623, and individualized “data and 
+information” in the small refneries' case, App. to Pet. for 
+Cert. 94a–95a. Of course, the Court thinks EPA leaned 
+more heavily on individualized reasons in the SIPs case, and 
+more heavily on common ones in the small refneries' case. 
+Oklahoma, 605 U. S., at 623–624. But without any objective 
+standard for weighing which predominates, there seems to 
+me ample room for good-faith disagreement between liti­
+gants and among lower courts. And it is just that kind of 
+ambiguity that promises protracted and expensive venue liti­
+gation going forward. 
+To avoid that problem, I would resolve the SIPs case the 
+same way I would resolve the small refneries' case: by look­
+ing to the Act itself. Section 7410(k)(3) requires EPA to ap­
+prove or disapprove SIPs and, in passing on them, to assess 
+whether each individual State has or has not complied with 
+its obligations under federal law. See id., at 615. Nowhere 
+does that substantive provision call for a nationally applica­
+Page Proof Pending Publication
+
+664 
+EPA v. CALUMET SHREVEPORT REFINING, L.L.C. 
+Gorsuch, J., dissenting 
+ble action or task EPA with making a determination of na­
+tionwide scope or effect. And no more is needed to know 
+that, under the Act's venue provision, the SIPs dispute be­
+fore us belongs in a regional circuit. Id., at 626 (Gorsuch, 
+J., concurring in judgment). 
+* 
+At the end of the day, venue rules are like traffc laws. 
+They simply tell litigants where to go, and they should be 
+easy to follow. As I read it, the Clean Air Act provides a 
+clear rule for cases like this one. Applying that rule here, 
+I would direct the parties to the appropriate regional circuit. 
+The Court doing otherwise, I respectfully dissent. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+1 
+Cite as: 606 U. S. ____ (2025) 
+THOMAS, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+GHP MANAGEMENT CORPORATION, ET AL. v. CITY 
+OF LOS ANGELES, CALIFORNIA, ET AL. 
+ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
+STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 
+No. 24–435. Decided June 30, 2025 
+The petition for a writ of certiorari is denied. 
+JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
+dissenting from the denial of certiorari. 
+During the COVID–19 pandemic, the City of Los Angeles 
+enacted an eviction moratorium that “‘effectively pre­
+clude[d] residential evictions.’”  2022 WL 17069822, *1 (CD
+Cal., Nov. 17, 2022).  Among other restrictions, this policy 
+barred landlords from evicting tenants “due to COVID-
+related nonpayment of rent.”  Ibid. Petitioners—13 owners 
+of Los Angeles apartment buildings and their shared man­
+agement company—sued the city, arguing that the morato­
+rium effected a per se physical taking, in violation of the 
+Takings Clause’s prohibition on takings of “private prop­
+erty . . . for public use, without just compensation.” U. S. 
+Const., Amdt. 5. I would grant review of the question
+whether a policy barring landlords from evicting tenants for
+the nonpayment of rent effects a physical taking under the 
+Takings Clause.
+This question is the subject of an acknowledged Circuit
+split. The Eighth and Federal Circuits have held that a bar 
+on evictions for the nonpayment of rent qualifies as a phys­
+ical taking, while the Ninth Circuit has held that it does 
+not. Compare Darby Development Co. v. United States, 112 
+F. 4th 1017, 1034–1035 (CA Fed. 2024), and Heights Apart­
+ments, LLC v. Walz, 30 F. 4th 720, 733 (CA8 2022), with
+2024 WL 2795190, *1 (CA9, May 31, 2024).  In issuing the
+decision below, the Ninth Circuit expressly acknowledged 
+
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+2 
+GHP MANAGEMENT CORP. v. LOS ANGELES 
+THOMAS, J., dissenting 
+this split. See ibid., n. 2. 
+This Circuit split stems from confusion about how to rec­
+oncile two of our precedents.  The Ninth Circuit treated as 
+controlling this Court’s decision in Yee v. Escondido, 503 
+U. S. 519 (1992), which held that a statute did not effect a
+physical taking when it allowed mobile home owners to 
+evict tenants only after an onerous delay.  Id., at 527–528. 
+The Yee Court explained that “[t]he government effects a 
+physical taking only where it requires the landowner to sub­
+mit to the physical occupation of his land,” whereas the 
+landlord petitioners in Yee had voluntarily contracted with
+their tenants and were accordingly subject to laws “regu­
+lat[ing their] use of their land by regulating the relationship 
+between landlord and tenant.”  Ibid.  Thus, in the Ninth 
+Circuit’s view, the Los Angeles eviction moratorium did not
+“effect a taking” because petitioners had already “opened 
+their property to occupation by tenants.” 
+2024 WL 
+2795190, *1. 
+By contrast, the Eighth and Federal Circuits looked to 
+our more recent decision in Cedar Point Nursery v. Hassid, 
+594 U. S. 139 (2021).  There, we held that a law requiring
+agricultural employers to allow labor organizers onto their
+property constituted a physical taking because it “appropri­
+ate[d] for the enjoyment of third parties the owners’ right
+to exclude.” Id., at 149. And, the Eighth and Federal Cir­
+cuits reasoned, if “forcing property owners to occasionally 
+let union organizers on their property infringes their right
+to exclude,” it follows that “forcing them to house non-rent­
+paying tenants (by removing their ability to evict)” does too. 
+Darby, 112 F. 4th, at 1035; accord, Heights Apartments, 30 
+F. 4th, at 733. 
+Because “[w]e created this confusion,” we have an obliga­
+tion to fix it. Gee v. Planned Parenthood of Gulf Coast, Inc., 
+586 U. S. 1057, 1059 (2018) (THOMAS, J., dissenting from
+denial of certiorari). That obligation is particularly strong
+here, as there is good reason to think that the Ninth Circuit 
+
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+ 
+3 
+Cite as: 606 U. S. ____ (2025) 
+THOMAS, J., dissenting 
+erred. Under the logic of Cedar Point, and our Takings 
+Clause doctrine more generally, an eviction moratorium
+would plainly seem to interfere with a landlord’s right to
+exclude. See Alabama Assn. of Realtors v. Department of 
+Health and Human Servs., 594 U. S. 758, 765 (2021) (per 
+curiam) (“[P]reventing [landlords] from evicting tenants
+who breach their leases intrudes on one of the most funda­
+mental elements of property ownership—the right to ex­
+clude”). Nor does Yee dictate otherwise: Although the stat­
+ute there constrained landlords’ right to evict, it was not
+“an outright prohibition on evictions for nonpayment of 
+rent.” Darby, 112 F. 4th, at 1035; see 503 U. S., at 527–528. 
+Finally, this issue is important and recurring.  Given the 
+sheer number of landlords and tenants, any eviction- 
+moratorium statute stands to affect countless parties.  And, 
+the end of the COVID–19 pandemic has not diminished the 
+importance of this issue.  Municipalities continue to enact 
+eviction moratoria in the wake of other emergencies.  See, 
+e.g., San Diego Cty., Cal., Ordinance No. 10936, §2 (N. S.)
+(2025) (codified at San Diego Cty., Cal., Code of Regulatory 
+Ordinances tit. 3, div. 1, ch. 5, §31.503); Statement of
+Proceedings for the Public Hearing Meeting of the Board 
+of Supervisors of the Cty. of Los Angeles 7–8 (Feb.
+25, 
+2025), 
+https://file.lacounty.gov/SDSInter/bos/sop/
+1178834_022525.pdf.  Even if it were otherwise, we would 
+do well to clarify our case law now, rather than in the heat 
+of the next national emergency. 
+* 
+* 
+* 
+This case meets all of our usual criteria for granting cer­
+tiorari, and it does not contain any impediments that would 
+hamper our review. The Court nevertheless denies certio­
+rari, leaving in place confusion on a significant issue, and 
+leaving petitioners without a chance to obtain the relief to 
+which they are likely entitled.  I respectfully dissent. 
diff --git a/corpus/law/text/b356ad02db714d65.txt b/corpus/law/text/b356ad02db714d65.txt
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+Corrigendum: Regulatory and policy implications of sand mining along shallow waters of Nzhelele River in South Africa
+
+Jàmbá: Journal of Disaster Risk Studies aims to engage, inform, and catalyse scholarly discourse within research and real-world practices that work towards the minimisation of vulnerabilities and disaster risks throughout developing communities with special emphasis on Africa.
+
+http://www.jamba.org.za
+Open Access
+Jàmbá - Journal of Disaster Risk Studies 
+ISSN: (Online) 2072-845X, (Print) 1996-1421
+Page 1 of 1
+Corrigendum
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
+Authors:
+Tendayi Gondo1 
+Humphrey Mathada2 
+Francis Amponsah-Dacosta3  
+Affiliations:
+1Department of Urban and 
+Regional Planning, School of 
+Environmental Sciences, 
+University of Venda, 
+Thohoyandou, South Africa
+2Department of Geography 
+and Geo-Information 
+Sciences, School of 
+Environmental Sciences, 
+University of Venda, 
+Thohoyandou, South Africa
+3Department of Mining and 
+Environmental Geology, 
+School of Environmental 
+Sciences, University of Venda, 
+Thohoyandou, South Africa
+Corresponding author:
+Tendayi Gondo,
+gondotee@gmail.com
+Date:
+Published: 06 Dec. 2019
+How to cite this article:
+Gondo, T., Mathada, H. & 
+Amponsah-Dacosta, F., 2019, 
+‘Corrigendum: Regulatory 
+and policy implications of 
+sand mining along shallow 
+waters of Nzhelele River in 
+South Africa’, Jàmbá: Journal 
+of Disaster Risk Studies 11(3), 
+a901. https://doi.org/​
+10.4102/jamba.v11i3.901
+Copyright: © 2019. The 
+Authors. Licensee: AOSIS. 
+This work is licensed under 
+the Creative Commons 
+Attribution License.
+Note: DOI of original article published: https://doi.org/10.4102/jamba.v11i3.727
+In the version of this article published earlier, the name of the river Nzhelele was incorrectly spelt 
+as Njelele. The river name has been corrected in the article title and in the ‘How to cite this article’ 
+section. The authors apologise for any inconvenience caused.
+Corrigendum: Regulatory and policy implications 
+of sand mining along shallow waters of 
+Nzhelele River in South Africa
+Read online:
+Scan this QR 
+code with your 
+smart phone or 
+mobile device 
+to read online.
diff --git a/corpus/law/text/b738e36d945a11d6.txt b/corpus/law/text/b738e36d945a11d6.txt
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+PRELIMINARY PRINT 
+Volume 604 U. S. Part 2 
+Pages 542–592 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 2, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+542 
+OCTOBER TERM, 2024 
+Syllabus 
+FOOD AND DRUG ADMINISTRATION v. WAGES AND 
+WHITE LION INVESTMENTS, L. L. C., dba TRITON 
+DISTRIBUTION, et al. 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 23–1038. Argued December 2, 2024—Decided April 2, 2025 
+This case concerns whether the Food and Drug Administration (FDA) law­
+fully denied respondents authorization to market certain electronic nico­
+tine delivery system products—known as electronic cigarettes, e-
+cigarettes, or vapes. These products have rapidly gained popularity 
+during the past 20 years, offering existing smokers a potentially safer 
+alternative to traditional combustible cigarettes. But e-cigarettes 
+carry their own health risks, and the panoply of available favors—which 
+include not only traditional cigarette favors (like tobacco and menthol) 
+but also fruit, candy, and dessert favors—appeals to non-smokers, par­
+ticularly younger Americans. 
+The FDA has long had the responsibility to determine whether manu­
+facturers may market new drugs, but it was the passage of the Family 
+Smoking Prevention and Tobacco Control Act of 2009 (TCA) that frst 
+gave the FDA broad jurisdiction to regulate tobacco products. Al­
+though the Act barred the FDA from banning all regulated tobacco 
+products outright, see 21 U. S. C. § 387g(d)(3), it prohibited a manufac­
+turer from marketing any “new tobacco product” without FDA authori­
+zation, see § 387j(a)(2)(A). One pathway to authorization of a “new 
+tobacco product” is the submission of a premarket tobacco product appli­
+cation. See § 387j(c)(1)(A)(i). The TCA requires the FDA to deny such 
+an application unless an applicant shows that its product “would be ap­
+propriate for the protection of the public health.” §387j(c)(2)(A). To 
+determine this, the FDA must consider, among other things, “the risks 
+and benefts to the population as a whole” and “tak[e] into account” the 
+likelihood that users of existing tobacco products will stop using those 
+products and that non-users will start using them. § 387j(c)(4). 
+In 2016, in response to the surging youth demand for favored prod­
+ucts, the FDA deemed e-cigarettes “tobacco products.” Given that 
+most e-cigarette products were not marketed in the United States be­
+fore February 15, 2007, the vast majority of these products qualifed 
+as “new tobacco products” under the TCA. Most manufacturers of e-
+cigarette products would thus need to comply with the TCA's 
+premarket-authorization regime to sell their products. This made the 
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 542 (2025) 
+543 
+Syllabus 
+continued sale of most e-cigarette products illegal absent authorization. 
+So to give these manufacturers adequate time to submit premarket to­
+bacco product applications, the FDA delayed enforcement for two to 
+three years. 
+See 81 Fed. Reg. 28977–28978. 
+This permitted e-
+cigarette products to remain on the market while manufacturers fled 
+their applications. A Federal District Court ultimately imposed a 
+deadline of September 9, 2020, for applications. 
+In the lead up to the application deadline, the FDA issued numerous 
+forms of guidance concerning premarket tobacco product applications 
+that orbited around four central themes: (1) the types of scientifc evi­
+dence that would be required; (2) the importance of cross-product com­
+parisons and investigations; (3) the FDA's enforcement priorities with 
+respect to device type; and (4) manufacturers' marketing plans, which 
+were described as “specifc restrictions on sale and distribution” meant 
+to deter new smokers from taking up e-cigarette products. App. 27. 
+In 2019, the FDA proposed a rule related to the submission of premar­
+ket tobacco product applications, and the proposed rule distilled the four 
+topics discussed in the predecisional guidance. See 84 Fed. Reg. 50566, 
+50580, 50581, 50585, 50603. 
+Respondents submitted applications seeking approval to market and 
+sell favored e-liquids for open-system e-cigarettes. The FDA denied 
+respondents' applications, concluding they had not provided suffcient 
+scientifc evidence to demonstrate that the marketing of their products 
+would be appropriate for the protection of public health. Specifcally, 
+the FDA held respondents had not provided evidence from a randomized 
+controlled trial, longitudinal cohort study, or other “robust and reliable” 
+evidence that their dessert-, candy-, and fruit-favored products had 
+benefts over tobacco-favored products. Despite previously describing 
+marketing plans as “critical,” the FDA decided “for the sake of eff­
+ciency” not to evaluate respondents' marketing plans. To each denial 
+order, the FDA appended a “Technical Project Lead (TPL) Review.” 
+See App. to Pet. for Cert. 177a, 285a. These lengthy documents, which 
+canvass the scientifc literature on youth e-cigarette use, refect the 
+FDA's evolving understanding of how favor, regardless of e-cigarette 
+device type, drives youth smoking initiation and nicotine addiction. 
+Respondents petitioned for judicial review of the FDA's denial orders 
+under the Administrative Procedure Act (APA). See § 387l(b) (citing 5 
+U. S. C. § 706(2)(A)). The Fifth Circuit, sitting en banc, granted re­
+spondents' petitions for review and remanded to the FDA. The en banc 
+majority held that the FDA had acted arbitrarily and capriciously by 
+applying application standards different from those articulated in its 
+predecisional guidance documents regarding scientifc evidence, cross-
+favor comparisons, and device type. The court expressed particular 
+
+Page Proof Pending Publication
+544 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Syllabus 
+concern about the FDA's failure to review marketing plans it previously 
+deemed critical. It also rejected the FDA's argument that any errors 
+were harmless. 
+Held: 
+1. As a preliminary matter, the Court declines to reach and thus ex­
+presses no view on respondents' argument that the FDA erred in evalu­
+ating respondents' applications under standards developed in adjudica­
+tion rather than standards promulgated in notice-and-comment 
+rulemaking. This complicated question sweeps beyond the question 
+presented and lacks adequate briefng. P. 565. 
+2. The Fifth Circuit's conclusion that the FDA acted arbitrarily and 
+capriciously in its adjudication of manufacturers' premarket tobacco 
+product applications is vacated because the FDA's denial orders were 
+suffciently consistent with its predecisional guidance—as to scientifc 
+evidence, comparative effcacy, and device type—and thus did not run 
+afoul of the change-in-position doctrine. Pp. 566–586. 
+(a) The Court analyzes the Fifth Circuit's conclusion that the FDA 
+acted arbitrarily and capriciously under the change-in-position doctrine, 
+which provides that “[a]gencies are free to change their existing policies 
+as long as they provide a reasoned explanation for the change,” “ `display 
+awareness that [they are] changing position,' ” and consider “ `serious 
+reliance interests.' ” Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 
+221–222 (quoting FCC v. Fox Television Stations, Inc., 556 U. S. 502, 
+515). This doctrine asks two questions: frst, whether an agency 
+changed existing policy, and second, whether the agency displayed 
+awareness of the change and offered good reasons for the new policy. 
+Pp. 566–571. 
+(b) The FDA's denial orders were suffciently consistent with its 
+predecisional guidance regarding scientifc evidence. The TCA states 
+that either “well-controlled investigations” or other “valid scientifc evi­
+dence” if found “suffcient” may support a fnding that a new tobacco 
+product is “appropriate for the protection of the public health.” 
+§§ 387j(c)(5)(A)–(B). The TCA thus left the FDA broad discretion to de­
+cide what sort of scientifc evidence an applicant was required to submit. 
+Across its various guidance documents, the FDA's main point was that 
+manufacturers who failed to submit evidence based on “well-controlled 
+investigations” would need to provide rigorous scientifc evidence that 
+the sale of their particular products would be appropriate for the protec­
+tion of the public health. The applicants did not submit randomized 
+controlled trials or longitudinal cohort studies, so the fate of their appli­
+cations turned on whether they submitted “other evidence” that met 
+the FDA's standard of scientifc rigor and relevance to their product. 
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 542 (2025) 
+545 
+Syllabus 
+The FDA rejected respondents' applications because that test was not 
+met. As evidence of a change in position, respondents point to the 
+FDA's July 9, 2021, internal memorandum, which stated that the failure 
+to submit evidence from a randomized controlled trial or longitudinal 
+cohort study would constitute a “fatal faw” that would “likely” result 
+in denial of an application. But the FDA issued a superseding memo­
+randum, which recognized that “other evidence” may demonstrate a 
+product is “appropriate for the protection of the public health,” and the 
+FDA represents that it did not rely on the July 9, 2021, internal memo­
+randum when adjudicating applications—a representation afforded a 
+presumption of regularity. Pp. 571–578. 
+(c) The FDA's comparative-effcacy requirement was not inconsist­
+ent with its predecisional guidance. The TCA expressly contemplates 
+comparisons of different tobacco products, and the FDA's guidance elab­
+orated on the types of comparisons that would be helpful. The FDA's 
+2019 guidance recommended that a manufacturer “compare the health 
+risks of its product to both products within the same category and 
+subcategory, as well as products in different categories as appropri­
+ate,” and its 2020 enforcement guidance telegraphed the FDA's view 
+that dessert-, candy-, and fruit-favored products were more likely 
+than tobacco- and menthol-favored products to appeal to the young. 
+Thus, when the FDA denied respondents' applications for failing to dem­
+onstrate the beneft of their favored products over tobacco-favored 
+products, it was following a natural consequence of its predecisional 
+guidance. Pp. 578–582. 
+(d) The FDA's treatment of device type did not violate the change-
+in-position doctrine. The FDA's 2020 guidance did not establish a “safe 
+harbor” for non-cartridge-based products. Although the 2020 guidance 
+emphasized the FDA would prioritize enforcement against cartridge-
+based products, it stated the FDA would also prioritize enforcement 
+against manufacturers “whose [products'] marketing is likely to promote 
+use by . . . minors.” That latter category seemingly covers respond­
+ents' products. Even if the FDA had changed its position in this re­
+spect, it offered “good reasons,” namely, evidence showing that youth 
+demand had moved from favored cartridge-based products to favored 
+disposable products. Fox Television, 556 U. S., at 515. From that evi­
+dence, the FDA drew the reasonable inference that youth were most 
+strongly drawn by favor rather than device type. Pp. 582–586. 
+3. The Fifth Circuit relied on an overly broad reading of Calcutt v. 
+FDIC, 598 U. S. 623 (per curiam), to reject the FDA's claim of harmless 
+error regarding the agency's change of position on marketing plans. 
+The FDA does not contest that despite assuring manufacturers that 
+marketing plans would be “critical” to their applications, the FDA ulti­
+
+Page Proof Pending Publication
+546 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Syllabus 
+mately did not consider respondents' marketing plans. The FDA ar­
+gued below that any error in this respect was harmless error because it 
+issued denial orders to other manufacturers after reviewing marketing 
+plans that were materially indistinguishable from respondents'. The 
+Fifth Circuit rejected the FDA's harmless-error argument, relying on 
+this Court's decision in Calcutt for the proposition that “APA errors are 
+only harmless where the agency would be required to take the same 
+action no matter what. In all other cases, an agency cannot avoid re­
+mand.” 90 F. 4th 357, 390. 
+The Court agrees with the FDA that the Fifth Circuit read Calcutt 
+too broadly. That said, the proper standard presents a diffcult prob­
+lem, requiring reconciliation of the so-called remand rule developed in 
+SEC v. Chenery Corp., 318 U. S. 80, 88, 93–95, with the APA's instruc­
+tion that reviewing courts must take “ `due account' ” of “ `the rule of 
+prejudicial error' ” that “ordinarily appl[ies] in civil cases,” Shinseki v. 
+Sanders, 556 U. S. 396, 406 (quoting 5 U. S. C. § 706). The most natural 
+interpretation of the APA's language is that reviewing courts should 
+adapt the “rule of prejudicial error” applicable in ordinary civil litigation 
+(also known as the harmless-error rule) to the administrative-law con­
+text, which, of course, includes the remand rule. In Calcutt, after recit­
+ing the remand rule in strong terms, the Court acknowledged that a 
+“remand may be unwarranted . . . [w]here the agency `was required' to 
+take a particular action.” 598 U. S., at 630 (quoting Morgan Stanley 
+Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 
+U. S. 527, 544). Although the Fifth Circuit interpreted Calcutt's discus­
+sion to mean that there is only one exception to the remand rule, it has 
+long been accepted that a remand may not be necessary when an 
+agency's decision is supported by a plethora of factual fndings, only one 
+of which is unsound, because a remand would be pointless. See, e. g., 
+Massachusetts Trustees of Eastern Gas & Fuel Associates v. United 
+States, 377 U. S. 235, 248. The existence of this exception is suffcient 
+to show that the Fifth Circuit's reading of Calcutt went too far. That 
+said, the FDA's reading of Sanders may also be excessive. The FDA 
+has not asked the Court to decide the harmless-error question at this 
+juncture, and the Court vacates and remands so the Fifth Circuit can 
+decide the question afresh without relying on its overly expansive read­
+ing of Calcutt. Pp. 586–592. 
+90 F. 4th 357, vacated and remanded. 
+Alito, J., delivered the opinion for a unanimous Court. Sotomayor, J., 
+fled a concurring opinion, post, p. 592. 
+
+Cite as: 604 U. S. 542 (2025) 
+547 
+Counsel 
+Deputy Solicitor General Gannon argued the cause for 
+petitioner. With him on the briefs were Solicitor General 
+Prelogar, Principal Deputy Assistant Attorney General 
+Boynton, Vivek Suri, Joshua M. Koppel, Catherine Padhi, 
+Samuel R. Bagenstos, and Wendy S. Vicente. 
+Eric N. Heyer argued the cause for respondents. With 
+him on the brief were Joseph A. Smith and James C. Fraser.* 
+*Briefs of amici curiae urging reversal were fled for the Common­
+wealth of Massachusetts et al. by Andrea Joy Campbell, Attorney General 
+of Massachusetts, David C. Kravitz, State Solicitor, and Alda Chan and 
+Matthew Lashof-Sullivan, Assistant Attorneys General, and by the Attor­
+neys General for their respective jurisdictions as follows: Kris Mayes of 
+Arizona, Rob Bonta of California, Philip J. Weiser of Colorado, William 
+Tong of Connecticut, Brian L. Schwalb of the District of Columbia, Anne 
+E. Lopez of Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, 
+Anthony G. Brown of Maryland, Dana Nessel of Michigan, Keith Ellison 
+of Minnesota, Matthew J. Platkin of New Jersey, Letitia James of New 
+York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of Oregon, 
+Michelle A. Henry of Pennsylvania, Peter F. Neronha of Rhode Island, 
+Charity R. Clark of Vermont, and Robert W. Ferguson of Washington; for 
+Public Health, Medical and Community Groups by William B. Schultz, 
+Andrew N. Goldfarb, and Dennis A. Henigan; and for Sixteen Members 
+of Congress by Mark B. Samburg and Victoria S. Nugent. 
+Briefs of amici curiae urging affrmance were fled for the Coalition of 
+Manufacturers of Smoking Alternatives by Erik S. Jaffe; for Electronic 
+Nicotine Delivery System Trade Associations et al. by Eric P. Gotting and 
+Azim Chowdhury; for the Goldwater Institute by Timothy Sandefur; for 
+Logic Technology Development LLC by Misha Tseytlin and Bryan M. 
+Haynes; for R. J. Reynolds Vapor Company et al. by Noel J. Francisco, 
+Donald F. McGahn II, Christian G. Vergonis, Ryan J. Watson, Andrew J. 
+M. Bentz, Charles E. T. Roberts, and Charles R. A. Morse; for the Taxpay­
+ers Protection Alliance by Donald M. Falk and Erik S. Jaffe; for Thirteen 
+Members of Congress et al. by Jordan Sekulow, Donn Parsons, and Ben­
+jamin P. Sisney; for Vaping Industry Stakeholders by J. Gregory Trout­
+man; for the Vapor Technology Association by Anthony L. Abboud; and 
+for the Washington Legal Foundation by John M. Masslon II and Cory 
+L. Andrews. 
+Carter G. Phillips and Peter A. Bruland fled a brief for the Global 
+Action To End Smoking, Inc., as amicus curiae. 
+Page Proof Pending Publication
+
+548 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+This case concerns the efforts of the Food and Drug Ad­
+ministration (FDA) to regulate the sale of “e-cigarettes,” a 
+product that rapidly gained popularity during the past 20 
+years. The governing federal law, the Family Smoking Pre­
+vention and Tobacco Control Act of 2009 (TCA), restricts the 
+sale of all “tobacco products” that were not commercially 
+marketed in the United States before February 15, 2007. 
+Unless otherwise authorized, a manufacturer may not in­
+troduce such a product to the market until the FDA deter­
+mines that it is “appropriate for the protection of the public 
+health.” 21 U. S. C. § 387j(c)(2)(A). In this case, we con­
+sider whether the FDA lawfully denied authorization to 
+market certain favored e-cigarette products. 
+I 
+One of the FDA's longstanding responsibilities, dating 
+back nearly a century, is to determine whether manufactur­
+ers may market new drugs. For much of that history, the 
+FDA lacked jurisdiction to regulate tobacco products. By 
+the time Congress conferred that authority in 2009, a new 
+product was ascendant on the market: the e-cigarette. This 
+product offers existing smokers a potentially safer alterna­
+tive to traditional combustible cigarettes. But e-cigarettes 
+carry their own health risks, and they come in a dizzying 
+array of favors, many of which, such as dessert, candy, and 
+fruit favors, are particularly appealing to the young. The 
+surging youth demand for favored products—and the pros­
+pect of a new generation of smokers—caught the FDA on its 
+back foot. In 2016, the agency declared that manufacturers 
+of e-cigarette products would need to obtain the same mar­
+keting authorization that is required for other “tobacco prod­
+ucts.” The FDA's regulatory efforts culminated in the 2021 
+denial of over a million applications for favored e-cigarette 
+products. The dispute before us arises from that mass 
+denial. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+549 
+Opinion of the Court 
+A 
+The Pure Food and Drugs Act of 1906 was Congress's frst 
+foray into the comprehensive regulation of food and drugs. 
+The Act prohibited the interstate transportation of “any arti­
+cle of food or drugs which is adulterated or misbranded.” 
+Ch. 3915, § 2, 34 Stat. 768. That Act also vested important 
+responsibility in the precursor to the FDA, the Bureau of 
+Chemistry in the U. S. Department of Agriculture. § 4, id., 
+at 769. But early in its tenure, the Bureau disclaimed any 
+authority to regulate tobacco products “labeled in such a 
+manner as to indicate their use for” nonmedicinal purposes 
+like “smoking or chewing or as snuff.” Dept. of Agriculture, 
+Bureau of Chemistry, 13 Service and Regulatory Announce­
+ments 24 (Apr. 1914) (Feb. 1914 Announcements ¶13, Opinion 
+of Chief of Bureau C. Alsberg). Congress later renamed the 
+Bureau of Chemistry, frst as the Food, Drug, and Insecticide 
+Administration and then as the FDA, the name by which we 
+know it today. A Historical Guide to the U. S. Government 
+249 (G. Kurian ed. 1998). 
+In 1938, Congress enacted the Federal Food, Drug, and 
+Cosmetic Act (FDCA), which vastly expanded the FDA's 
+regulatory authority over “drugs and devices.” 52 Stat. 
+1049. One of the FDCA's major innovations was the estab­
+lishment of a system for premarket authorization under 
+which manufacturers are prohibited from marketing “any 
+new drug” in interstate commerce without the FDA's ap­
+proval. §§ 505(a)–(b), (d), id., at 1052; Historical Guide, at 
+251. To receive such authorization, manufacturers must 
+prove to the FDA that their new products are safe for use. 
+And if the FDA has “insuffcient information” to make that 
+determination, it must “issue an order refusing” marketing 
+authorization. § 505(d), 52 Stat. 1052. 
+By the middle of the 20th century, nearly one in two 
+Americans regularly smoked. See R. Rabin, A Sociolegal 
+History of the Tobacco Tort Litigation, 44 Stan. L. Rev. 853, 
+855 (1992). Toward the latter half of the century, however, 
+Page Proof Pending Publication
+
+550 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+the public became increasingly aware of the “great” “poten­
+tial hazard” of tobacco, Dept. of Health, Education, and Wel­
+fare, Surgeon General's Advisory Committee, Smoking and 
+Health 25 (1964), and the addictive properties of nicotine, see 
+L. Goitein, G. Chernack, G. Liu, & M. Davis, Developments 
+in Policy: The FDA's Tobacco Regulations, 15 Yale L. & Pol'y 
+Rev. 399, 402 (1996). 
+The FDCA was enacted long before public awareness of 
+the dangers of smoking became widespread, and neither its 
+text nor its legislative history provided any indication that 
+tobacco products fell within the FDA's jurisdiction. See A. 
+Boeckman, An Exercise in Administrative Creativity: The 
+FDA's Assertion of Jurisdiction Over Tobacco, 45 Cath. U. 
+L. Rev. 991, 1015 (1996). Thus, during the frst 60 years 
+after the FDCA's enactment, the FDA (like the Chemistry 
+Bureau) repeatedly stated that it “lacked authority under 
+the FDCA to regulate tobacco absent claims of therapeutic 
+beneft by the manufacturer.” FDA v. Brown & William­
+son Tobacco Corp., 529 U. S. 120, 144 (2000); see R. Kluger, 
+Ashes to Ashes: America's Hundred-Year Cigarette War, the 
+Public Health, and the Unabashed Triumph of Philip Morris 
+757–759 (1997) (Kluger). 
+Tobacco regulation was largely left to Congress, which 
+enacted various statutes between 1965 and the turn of the 
+century to address the harms of tobacco use, including the 
+imposition of warning requirements (15 U. S. C. §§ 1331, 1333, 
+4402(a)(1) (2000 ed.)); restrictions on the advertisement of 
+certain tobacco products (15 U. S. C. §§1335, 4402(a)(2), (f) 
+(2000 ed.)); requirements that the Secretary of Health and 
+Human Services report on scientifc fndings about, among 
+other things, “the addictive property of tobacco” (42 U. S. C. 
+§ 290aa–2(b)(2) (1994 ed.)); and age restrictions on the sale or 
+distribution of tobacco products (42 U. S. C. § 300x–26(a)(1) 
+(2000 ed.)). See Brown & Williamson Tobacco Corp., 529 
+U. S., at 137–139, 143–144. At no point during that period 
+did Congress grant the FDA jurisdiction to regulate tobacco 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+551 
+Opinion of the Court 
+or tobacco products under the FDCA. And when the FDA 
+tried via regulation to assert such jurisdiction in 1996, see 
+61 Fed. Reg. 44619–45318, this Court rejected that effort as 
+beyond the FDA's statutory authority, see Brown & Wil­
+liamson Tobacco Corp., 529 U. S., at 126. 
+Against that backdrop, Congress enacted the Family 
+Smoking Prevention and Tobacco Control Act of 2009, 123 
+Stat. 1776. The TCA vests the Secretary of Health and 
+Human Services, acting through the FDA, with the authority 
+that this Court previously found lacking: namely, the power 
+to regulate the manufacturing, marketing, sale, and distribu­
+tion of tobacco products. See § 901, id., at 1786. The TCA 
+explicitly granted the FDA regulatory authority over “ciga­
+rettes, cigarette tobacco, roll-your-own tobacco, and smoke­
+less tobacco.” 21 U. S. C. § 387a(b). It also granted author­
+ity to regulate “any other tobacco products” that the FDA 
+“by regulation deems” to meet the defnition of a tobacco 
+product. Ibid. 
+The TCA's reach was broad. While the Act barred the 
+FDA from banning all regulated tobacco products outright 
+or requiring manufacturers to reduce nicotine yields to zero, 
+see § 387g(d)(3), it prohibited a manufacturer from marketing 
+any “new tobacco product” without FDA authorization, see 
+§ 387j(a)(2)(A). A “new tobacco product” is one that was not 
+marketed in the United States before February 15, 2007, and 
+the TCA subjected such products to a premarket authoriza­
+tion process. See §§ 387j(a)(1)(A), (a)(2). 
+One pathway to authorization of the sale of a new tobacco 
+product is the submission of a premarket tobacco product 
+application.1 
+§ 387j(c)(1)(A)(i). These applications require, 
+1 The TCA establishes a handful of other authorization pathways for new 
+tobacco products. For example, manufacturers may ask the FDA to make 
+a determination that a new tobacco product is substantially equivalent to 
+a product commercially marketed as of February 15, 2007. See 21 U. S. C. 
+§§ 387j(a)(2)–(3). And a showing of substantial equivalence may be un­
+necessary for new tobacco products that make only minor modifcations 
+Page Proof Pending Publication
+
+552 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+among other things, information about a product's compo­
+nents and additives, the method by which it is manufactured, 
+any proposed labeling, and an assessment of its health risks. 
+See § 387j(b)(1). There are many reasons why the FDA may 
+deny marketing authorization to a “new tobacco product,” 
+but of main importance here, the agency must deny an ap­
+plication unless it is shown that the product “would be 
+appropriate for the protection of the public health.” 
+§ 387j(c)(2)(A). 
+To determine whether a product meets this standard, the 
+FDA must consider “the risks and benefts to the population 
+as a whole” and “tak[e] into account” the “increased or de­
+creased likelihood” of two outcomes: frst, that the new prod­
+uct will induce users of existing tobacco products such as 
+conventional cigarettes to stop using those products and, 
+second, that “those who do not use tobacco products will 
+start using” them. §387j(c)(4). The FDA's determination 
+regarding the likely effects of a new product must, “when 
+appropriate,” be based on “well-controlled investigations” or 
+other “valid scientifc evidence” that is “suffcient to evaluate 
+the tobacco product.” § 387j(c)(5). 
+The FDA must act “[a]s promptly as possible” on a pre­
+market tobacco product application and “in no event later 
+than 180 days after the receipt of an application.” 
+§ 387j(c)(1)(A). If the FDA denies an application for pre­
+market authorization, “any person adversely affected” by the 
+denial has 30 days to seek judicial review in a court of ap­
+peals. § 387l(a)(1). The reviewing courts must in turn 
+apply the provisions of the Administrative Procedure Act 
+(APA). § 387l(b) (citing 5 U. S. C. § 706(2)(A)). 
+to products commercially marketed as of February 15, 2007. 
+See 
+§387e(j)(3)(A). Moreover, manufacturers may seek authorization for 
+“modifed risk tobacco products,” that is, products used “to reduce harm or 
+the risk of tobacco-related disease associated with commercially marketed 
+tobacco products.” §§387k(b)(1), (g)(1). 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+553 
+Opinion of the Court 
+B 
+At the end of the 20th century, tobacco manufacturers 
+tried without much luck to market safer alternatives to tra­
+ditional cigarettes, such as “smokeless” cigarettes. See 
+Kluger 599–604; Dept. of Health & Human Servs., E-
+Cigarette Use Among Youth and Young Adults: A Report of 
+the Surgeon General 9 (2016) (2016 Surgeon General's Re­
+port). But in 2007 a new product hit the American market: 
+electronic nicotine delivery systems, which are popularly 
+known as electronic cigarettes, e-cigarettes, or vapes. See 
+id., at 10; K. Lichtenberg, E-Cigarettes: Current Evidence 
+and Policy, 114 Mo. Med. 335 (2017). Practically overnight, 
+e-cigarettes became ubiquitous. Sales for e-cigarette prod­
+ucts “surged exponentially” after 2010, 2016 Surgeon Gener­
+al's Report 152, and according to one estimate, 11.2 million 
+American adults used e-cigarettes by 2016, see O. Obisesan 
+et al., Trends in E-Cigarette Use in Adults in the United 
+States, 2016–2018, 180 JAMA Internal Med. 1394 (2020). 
+The impetus for the invention of e-cigarettes was the de­
+sire to create a product that would reduce the health risks 
+of smoking. A traditional combustible cigarette contains 
+shredded tobacco wrapped in paper, and when lit, the tobacco 
+“catches fre” and “produces smoke, which contains nicotine” 
+and “tar”—a “complex chemical mixture of more than 7,000 
+compounds that cause a wide range of diseases.” Brief for 
+Global Action To End Smoking, Inc., as Amicus Curiae 14 
+(internal quotation marks omitted). In contrast, an e-
+cigarette contains a battery, a heating element or atomizer, 
+a liquid nicotine reservoir, and a mouthpiece. See 2016 Sur­
+geon General's Report 11. When an e-cigarette user inhales 
+through the device's mouthpiece, the heating coil engages, 
+and the liquid (called e-liquid or e-juice) turns into a nicotine-
+infused vapor. See ibid. Unlike a traditional cigarette, an 
+e-cigarette does not release tar or other “byproducts of com­
+bustion,” but it does “emit potentially toxic substances,” in­
+cluding “fne particulate matter,” “metals,” and, of course, 
+Page Proof Pending Publication
+
+554 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+nicotine. Brief for Global Action To End Smoking, Inc., as 
+Amicus Curiae 15–16 (internal quotation marks omitted). 
+E-cigarettes typically come in either a “closed” or “open” 
+system. See 2016 Surgeon General's Report 151–152. 
+Closed-system e-cigarettes contain a set amount of e-liquid 
+that is determined by the manufacturer. Some closed-
+system products are designed to be discarded after the e-
+liquid supply runs out, while others can be reused by insert­
+ing a cartridge or pod that contains e-liquid. By contrast, 
+an open-system e-cigarette contains a “tank” that users can 
+manually refll with the desired amount of e-liquid. Users 
+of open-system products may mix their own e-liquids and 
+adjust the amount of e-liquid in the tank. 
+There is ferce public debate about the potential benefts 
+and harms of e-cigarettes. 
+On one hand, many view e-
+cigarettes as a harm-reduction tool. They enable current 
+smokers who are addicted to nicotine to reduce exposure to 
+some of the more harmful byproducts of traditional combus­
+tible cigarettes. See id., at 10–11; National Academies of 
+Sciences, Engineering, and Medicine, Committee on the Re­
+view of the Health Effects of Electronic Nicotine Delivery 
+Systems, Public Health Consequences of E-Cigarettes 18 
+(2018). On the other hand, e-cigarettes, as noted, pose their 
+own health risks, and there is concern that the use of e-
+cigarettes by non-smokers—and especially young non­
+smokers—may eventually lead them to smoke conventional 
+cigarettes. See id., at 532–535. 
+Early on, evidence began to mount that young Americans 
+are particularly drawn to e-cigarette products. By the mid­
+2010s, approximately 2.4 million high-school students and 
+620,000 middle-school students reported using an e-cigarette 
+at least once in the last 30 days. 2016 Surgeon General's 
+Report 5, 10. And a more recent estimate suggests that 
+approximately 3.6 million American middle- and high-school 
+students used an e-cigarette within a 30-day period. See 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+555 
+Opinion of the Court 
+Congressional Research Service, H. Sheikh & V. Green, FDA 
+Regulation of Tobacco Products 1 (2021). 
+One particular feature of e-cigarette products appears to 
+drive this youth demand: the panoply of e-liquid favors. 
+One nearly decade-old estimate found that there were 7,700 
+unique e-liquid favors, including not only favors that were 
+familiar to cigarette smokers (tobacco and menthol) but also 
+fruit, candy, and dessert favors that were appealing to non­
+smokers. See 2016 Surgeon General's Report 11. The ka­
+leidoscope of favor options adds to the allure of e-cigarettes 
+and has thus contributed to the booming demand for such 
+products among young Americans. See ibid. 
+Because the popularity of e-cigarettes is a relatively recent 
+phenomenon, these products initially escaped the FDA's reg­
+ulatory reach. But in 2016, the FDA issued a rule deeming 
+e-cigarettes and e-liquids to be “tobacco products.” 81 Fed. 
+Reg. 29028 (2016). Since most e-cigarette products were 
+“not commercially marketed in the United States as of Feb­
+ruary 15, 2007,” the deeming rule retroactively rendered 
+such products “new tobacco products” subject to the TCA's 
+premarket-authorization regime. 21 U. S. C. § 387j(a)(1)(A). 
+And because those products had not received premarket au­
+thorization, the effect of the rule was to make their contin­
+ued sale illegal. Companies that proceeded to sell their 
+products without such authorization would be subject to stiff 
+penalties. See §§331(a), 333(a)(1), and (f)(9). 
+To give these manufacturers adequate time to apply for 
+“premarket” authorization, the FDA delayed enforcement for 
+two to three years. See 81 Fed. Reg. 28977–28978. This per­
+mitted e-cigarette products to remain on the market while 
+manufacturers fled their applications. Initially, applications 
+were due by August 8, 2018. See Vapor Tech. Assn. v. FDA, 
+977 F. 3d 496, 498 (CA6 2020) (per curiam) (citing 81 Fed. Reg. 
+29010–29011). The FDA later tried via guidance to extend 
+the compliance deadline through 2022, but a Federal District 
+Page Proof Pending Publication
+
+556 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+Court ultimately imposed a deadline of September 9, 2020, 
+adding to the time crunch for compliance. See American 
+Academy of Pediatrics v. FDA, 399 F. Supp. 3d 479, 487 (Md. 
+2019) (imposing a May 12, 2020, deadline); Order in Ameri­
+can Academy of Pediatrics v. FDA, No. 18–cv–883 (D Md., 
+Apr. 22, 2020), ECF Doc. 182, p. 1 (extending the deadline to 
+September 9, 2020, due to the COVID–19 pandemic); see also 
+Vapor Tech. Assn., 977 F. 3d, at 498–500 (detailing the shift­
+ing compliance deadline). 
+C 
+At the center of this case are the FDA's actions leading 
+up to its adjudication of manufacturers' premarket tobacco 
+product applications. The agency proposed a rule outlining 
+application requirements, issued guidance to assist e-
+cigarette manufacturers, and crafted internal memoranda 
+discussing how applications were to be reviewed. These vo­
+luminous and discursive documents paint a picture of an 
+agency that was feeling its way toward a fnal stance and 
+was unable or unwilling to say in clear and specifc terms 
+precisely what applicants would have to provide. Pervading 
+these documents are four overarching topics that animate 
+the dispute before us. 
+1 
+The frst topic was the types of scientifc evidence needed 
+to show that an e-cigarette product is “appropriate for the 
+protection of the public health.” § 387j(c)(2)(A). Recall 
+that the TCA states that “well-controlled investigations” 
+may support such a showing “when appropriate,” 
+§ 387j(c)(5)(A), as can “other `valid scientifc evidence' if 
+found suffcient to evaluate the tobacco product,” App. 28 
+(quoting § 387j(c)(5)(B)). At an October 23, 2018, public 
+meeting, an FDA offcial opined that “[i]n most situations,” 
+the FDA would expect “some analytical testing specifc to [a 
+manufacturer's] product.” FDA/Center for Tobacco Prod­
+ucts, Tobacco Product Application Review, A Public Meet­
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+557 
+Opinion of the Court 
+ing October 22–23, 2018—Day 2, Sess. 7, Part 2, at 2:12:35– 
+2:12:43, https://www.fda.gov/tobacco-products/ctp-newsroom/ 
+tobacco-product-application-review-public-meeting#Video2 
+(2018 Presentation Video). But the FDA also assured man­
+ufacturers that no “specifc studies,” “[y]outh behavioral 
+data,” or “new nonclinical or clinical studies” would be re­
+quired. FDA, Premarket Tobacco Product Application Con­
+tent Overview 18, 26 (Oct. 23, 2018), https://www.fda.gov/ 
+media/117507/download (2018 Presentation). The FDA said 
+much the same thing in a lengthy 2019 guidance document, 
+noting that the “relatively new entrance” of e-cigarette prod­
+ucts meant that “limited data may exist from scientifc stud­
+ies and analyses.” App. 28. So, according to this docu­
+ment, the FDA would not require “long-term studies,” and 
+manufacturers could instead rely on various alternatives, 
+like observational studies, literature reviews, or evidence 
+bridging their new tobacco product to “a studied tobacco 
+product.” Id., at 28, 99–105. 
+After manufacturers submitted millions of applications for 
+favored e-cigarette products, the FDA “develop[ed] a new 
+plan to effectively manage” the scientifc evidence underly­
+ing the onslaught of applications. Id., at 242. In a July 9, 
+2021, internal memorandum, the FDA took a far less capa­
+cious view of the scientifc evidence it would consider. Spe­
+cifcally, the FDA said that it would consider it a “fatal faw” 
+if an application lacked scientifc evidence about a product 
+based on either a randomized controlled trial or a longitu­
+dinal cohort study. Id., at 243. A “fatal faw” would lead 
+to a manufacturer's “likely receiv[ing] a marketing denial 
+order” for that product. Ibid. 
+Over a month later on August 17, 2021, the FDA issued 
+another internal memorandum that differed in some respects 
+from the July memorandum. It stated that, in addition to 
+randomized controlled trials and longitudinal cohort studies, 
+the FDA “would also consider evidence from another study 
+design, provided that it could reliably and robustly assess 
+Page Proof Pending Publication
+
+558 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+behavior change” and “compar[e] users of favored products 
+with those of tobacco-favored products.” Id., at 247, n. ix. 
+Then, on August 25, 2021, just before denying respondents' 
+applications, the FDA rescinded the August 17, 2021, memo­
+randum and stated it would “not consider or rely” on it when 
+evaluating premarket tobacco product applications. Id., at 
+282. 
+2 
+The second topic was the need for manufacturers to com­
+pare their proposed products to other products. The TCA 
+requires premarket tobacco product applications to provide 
+“full reports of all information . . . concerning investigations 
+which have been made to show” that a new product “pre­
+sents less risk than other tobacco products.” 21 U. S. C. 
+§ 387j(b)(1)(A). Elaborating on that standard at a presenta­
+tion on October 23, 2018, an FDA offcial encouraged appli­
+cants to provide comparisons between their products and a 
+“representative sample of tobacco products on the market.” 
+2018 Presentation 11. And a 2019 guidance document simi­
+larly recommended comparisons of “the health risks of [a 
+manufacturer's] product to both products within the same 
+category and subcategory, as well as products in different 
+categories as appropriate.” App. 30. The 2019 guidance 
+also gave manufacturers discretion to choose comparator 
+products as long as the FDA could “understand [an] appli­
+cant's rationale and justifcation for [the] comparators chosen.” 
+Ibid. Later that year at a public meeting, an FDA offcial of­
+fered the same general advice that a successful premarket to­
+bacco product application “may include comparisons to other 
+tobacco products in the same category or in other categories 
+or subcategories.” FDA/CTP, Deemed Tobacco Product 
+Applications, Video Presentation of Premarket Tobacco 
+Product Applications (PMTAs) Review Process and Re­
+sources (Oct. 28, 2019), at 31:10–31:16, https://collaboration 
+.fda.gov/ptf21jryjxyk/?OWASP_CSRFTOKEN=7a8d148 
+ac776ca8f3aec38aff7dee12ea4988c1caed05010cded06ab7496 
+714f. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+559 
+Opinion of the Court 
+3 
+In a lengthy April 2020 guidance document,2 the FDA 
+elaborated on a third theme: its enforcement priorities based 
+on device type. The agency said it would “prioritize en­
+forcement of favored, cartridge-based” e-cigarette products 
+“other than tobacco- and menthol-favored products.” App. 
+160. 
+It claimed that “youth overwhelmingly prefer 
+cartridge-based” products, which are “easy to conceal, can 
+be used discreetly, may have a high nicotine content, and 
+are manufactured on a large scale.” Id., at 163. And the 
+document asserted that certain favors, such as candy and 
+fruit favors, “are a strong driver for youth use.” Id., at 164; 
+see also id., at 190 (discussing the increased use of “fruit­
+and candy-favored” products). Although the FDA sug­
+gested that its focus on favored, cartridge-based products 
+“should have minimal impact on small manufacturers (e. g., 
+vape shops) that primarily sell non-cartridge-based” prod­
+ucts, it noted that it would also prioritize enforcement 
+against “[a]ll other [e-cigarette] products for which the manu­
+facturer has failed to take (or is failing to take) adequate 
+measures to prevent minors' access,” as well as “[a]ny [e­
+cigarette] product that is targeted to minors or whose mar­
+keting is likely to promote use of [e-cigarettes] by minors.” 
+Id., at 160–161. 
+4 
+The fnal theme cutting across these documents is the 
+FDA's unfinching advice that manufacturers should submit 
+“marketing plans” as part of their applications. “Marketing 
+plans” broadly refer to a manufacturer's “specifc restrictions 
+on sale and distribution” that could, for example, “decreas[e] 
+2 The Fifth Circuit suggested that the FDA's 2020 guidance does not 
+apply here because respondents manufacture “bottles of favored nicotine 
+liquids,” not e-cigarette products themselves. 90 F. 4th 357, 369 (2024) 
+(en banc). But the 2020 guidance concerned the FDA's enforcement prior­
+ities with respect to “[e]lectronic nicotine delivery systems” or “ENDS,” 
+and, as the guidance document explains, “[e]-liquids are a type of ENDS 
+product.” App. 143 (emphasis deleted). 
+Page Proof Pending Publication
+
+560 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+the likelihood that those who do not use tobacco products 
+will start using tobacco products.” Id., at 27. In its 2019 
+guidance, the FDA urged manufacturers to “shar[e]” their 
+“marketing plan[s] to enable FDA to better understand the 
+potential consumer demographic” of their products. Id., at 
+83. The 2020 enforcement guidance hit the same note, sug­
+gesting the FDA “intend[ed] to consider” marketing plans 
+and that such plans would be relevant to the agency's en­
+forcement “prioritization.” Id., at 167, 169. The FDA even 
+offered examples of what marketing restrictions manufac­
+turers might consider, including screening retailers, age-
+verifcation technology, mystery-shopper programs, controls 
+over distributors, and quantity limits. Id., at 167–169, 223. 
+It also cautioned that, based on its experience, “focusing on 
+how the product was sold” and “age verifcation” “would not 
+be suffcient to address youth use.” Id., at 215, 220–221. 
+D 
+In 2019, the FDA proposed a rule setting out the require­
+ments for premarket tobacco product applications. See 84 
+Fed. Reg. 50566 (2019). That proposed rule, in signifcant 
+part, crystallized the four themes discussed above. It of­
+fered specifcs on the “types of [scientifc] investigations” 
+that applications “would be required to contain.” Id., at 
+50603; see, e. g., ibid. (listing “[c]ross sectional and longitudi­
+nal surveys,” “epidemiologic studies,” and “analytic studies” 
+like “randomized controlled clinical trials, cohort studies, and 
+case control studies”); id., at 50599 (proposing “health risk 
+investigations” besides new clinical studies). The proposed 
+rule also required certain cross-product comparisons. See 
+id., at 50603 (requiring that applicants “submit investigations 
+that have been made to show whether the tobacco product 
+has the same or different potential health risks . . . than other 
+tobacco products”). And it underscored the importance of 
+device type with respect to product testing. See id., at 
+50585 (proposing requirements for constituent testing spe­
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+561 
+Opinion of the Court 
+cifc to open-system products). In addition, the proposed 
+rule obligated manufacturers to submit marketing plans, 
+which were described as “provid[ing] input that is critical” 
+to the agency's review. Id., at 50580, 50581. 
+Notice-and-comment rulemaking takes time, and with a 
+court-imposed deadline fast approaching, the FDA pro­
+ceeded to adjudicate the frst major wave of premarket to­
+bacco product applications in August and September 2021 
+without a fnal rule and the standards it included. It was 
+not until October 5, 2021, that the FDA adopted the fnal 
+rule. See 86 Fed. Reg. 55300 (2021). 
+1 
+Respondents Wages and White Lion Investments, LLC, 
+doing business as Triton Distribution, and Vapetasia, LLC, 
+manufacture favored e-liquids for open-system e-cigarettes. 
+Their e-liquid favor offerings include “Killer Kustard Blue­
+berry,” “Rainbow Road,” “Iced Blackberry Lemonade,” 
+“Pineapple Express,” “Suicide Bunny Mother's Milk and 
+Cookies,” and “Blueberry Parfait.” See App. 396, 546, 587, 
+593, 605, 608. 
+Respondents submitted premarket tobacco product appli­
+cations on September 9, 2020, the fnal court-ordered dead­
+line. As the FDA recommended in its guidance, their appli­
+cations included marketing plans, which touted respondents' 
+use of third-party age-verifcation technology, quantity lim­
+its, and requirements for retailers to develop compliance 
+checks. See id., at 431–436, 441. To show the safety of 
+their products, respondents “pool[ed] resources” with “other, 
+similarly situated e-liquid companies” to “fund the develop­
+ment of certain, required non-product specifc data,” includ­
+ing what they characterized as a “comprehensive review of 
+the scientifc literature.” Id., at 311. One of the respond­
+ents, Vapetasia, also submitted the results of a cross-
+sectional survey of current and former adult e-cigarette 
+smokers. See App. to Pet. for Cert. 280a. 
+Page Proof Pending Publication
+
+562 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+The FDA received applications from more than 500 compa­
+nies in total, covering more than 6.5 million e-cigarette prod­
+ucts. See FDA Denies Marketing Applications for About 
+55,000 Flavored E-Cigarette Products for Failing To Provide 
+Evidence They Appropriately Protect Public Health (Aug. 
+26, 2021), https://fda.gov/news-events/press-announcements/ 
+fda-denies-marketing-applications-about-55000-flavored-e­
+cigarette-products-failing-provide-evidence. Almost a year 
+after the court-ordered deadline, the FDA adjudicated its 
+frst slate of premarket tobacco product applications and is­
+sued marketing denial orders to three manufacturers whose 
+applications covered 55,000 favored e-cigarette products. 
+See ibid. The FDA concluded that the manufacturers failed 
+to provide “suffcient product-specifc scientifc evidence to 
+demonstrate enough of a beneft to adult smokers that would 
+overcome the risk posed to youth.” Ibid. Such “scientifc 
+evidence,” the agency said, “would likely be in the form of a 
+randomized controlled trial or longitudinal cohort study,” but 
+the FDA promised that it remained open to “other types of 
+evidence” that are “suffciently robust and reliable.” Ibid. 
+Shortly thereafter, the FDA denied respondents' applica­
+tions. See App. to Pet. for Cert. 166a, 278a. It concluded 
+that respondents had not provided suffcient scientifc evi­
+dence to demonstrate that the marketing of their products 
+would be appropriate for the protection of public health. 
+See id., at 166a–167a. Specifcally, the FDA held respond­
+ents had not provided evidence from a randomized controlled 
+trial, longitudinal cohort study, or another “reliabl[e] and ro­
+bus[t]” method showing that their dessert-, candy-, and fruit-
+favored products had benefts “over an appropriate compa­
+rator tobacco-favored” product. Id., at 167a. With such 
+evidence lacking, the FDA deemed respondents' products 
+“misbranded” and “adulterated” under the FDCA. Id., at 
+168a. 
+To each denial order, the FDA appended a “Technical Proj­
+ect Lead (TPL) Review.” See id., at 177a, 285a. These 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+563 
+Opinion of the Court 
+lengthy documents have several noteworthy features. To 
+start, they offer a window into the FDA's evolving under­
+standing of how favor, regardless of e-cigarette device type, 
+drives youth smoking initiation and nicotine addiction. The 
+reviews canvass the scientifc literature on youth e-cigarette 
+use and explain that this literature had led the agency to 
+conclude that favors make e-cigarette smoking “more palat­
+able for novice youth and young adults” and may “increase 
+nicotine exposure by potentially infuencing the rate of nico­
+tine absorption.” Id., at 190a, 298a. What is more, the FDA 
+stated, young people are drawn to particular favors, and the 
+FDA anticipated that its crackdown on one type of e-cigarette 
+device would lead youth to fock to a different type of device 
+to continue using a desired favor. See id., at 192a, 300a. 
+Despite the FDA's prior representations about the impor­
+tance of marketing plans, the reviews stated that, “for the 
+sake of effciency,” the FDA had decided not to evaluate 
+respondents' marketing plans. Id., at 200a–201a, n. xix, 
+308a–309a, n. xix. The FDA acknowledged that it “is theo­
+retically possible that signifcant mitigation efforts” could 
+decrease the appeal of favored e-cigarettes to a suffcient 
+degree to counterbalance the documented risks of such 
+products, but it found that none of the marketing plans the 
+FDA had seen had managed to do that. Ibid. 
+The FDA estimates that in its frst wave of marketing or­
+ders, it issued denials to 320 applicants, who sought approval 
+for approximately 1.2 million products. See Tr. of Oral 
+Arg. 33. 
+2 
+Respondents petitioned for review in the Fifth Circuit. A 
+motions panel initially granted a stay of their marketing de­
+nial orders pending review, see 16 F. 4th 1130, 1134 (2021), 
+but a divided merits panel ultimately denied the petitions, 
+see 41 F. 4th 427, 430 (2022). 
+The court then reheard the case en banc, granted respond­
+ents' petitions for review, and remanded to the FDA. The 
+Page Proof Pending Publication
+
+564 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+en banc majority held that the FDA had acted arbitrarily 
+and capriciously in denying respondents' applications. In 
+its view, the FDA performed a surprise switch from the re­
+quirements articulated in the various predecisional docu­
+ments. 90 F. 4th 357, 362 (2024). The court pointed to sev­
+eral main examples of this phenomenon, including the FDA's 
+positions on scientifc evidence, cross-favor comparisons, and 
+device type. See, e. g., id., at 376, 377, 384. The court ex­
+pressed particular concern that the FDA pulled the rug out 
+from under manufacturers by “not even read[ing] the mar­
+keting plans it previously said were critical.” Id., at 372. 
+Although the FDA's attorneys represented that the agency 
+had reviewed “ `summar[ies]' ” of respondents' marketing 
+plans, the court deemed that representation an illicit post 
+hoc rationalization. Id., at 373. 
+In a footnote, the en banc majority also suggested that 
+the FDA had violated a provision of the TCA's notice-and­
+comment requirements, see 21 U. S. C. §§ 387g(c)–(d), by im­
+posing a “de facto ban on favored e-cigarettes” through mass 
+adjudicatory denials, 90 F. 4th, at 384, n. 5. 
+Having found that the FDA had erred in these ways, the 
+court rejected the FDA's suggestion that any errors were 
+harmless. Relying heavily on our decision in Calcutt v. 
+FDIC, 598 U. S. 623 (2023) (per curiam), the court suggested 
+that “APA errors are only harmless where the agency would 
+be required to take the same action no matter what. In all 
+other cases,” the court concluded, “an agency cannot avoid 
+remand.” 90 F. 4th, at 390. And, in a brief alternative 
+analysis, the court found that each of the FDA's errors 
+“plainly affected the procedure used” and was prejudicial. 
+Ibid. (internal quotation marks omitted). 
+Judge Haynes, joined by four other judges, dissented. 
+See ibid. Judge Graves joined the dissent in part. See id., 
+at 405. 
+The en banc Fifth Circuit's decision conficted with those 
+of other Circuits, and we granted the FDA's petition for a 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+565 
+Opinion of the Court 
+writ of certiorari. 603 U. S. 904 (2024). We now vacate 
+and remand. 
+II 
+The question we agreed to decide is whether the FDA 
+acted arbitrarily and capriciously in denying respondents' 
+applications for premarket approval of their tobacco prod­
+ucts. See Pet. for Cert. I. But before tackling that ques­
+tion, we briefy address as a preliminary matter an argument 
+that is touched on in respondents' brief: namely, that either 
+the APA or the TCA required the FDA to use notice-and­
+comment rulemaking to set out the requirements that must 
+be met in a premarket tobacco product application. 
+Unless Congress has specifed otherwise, agencies are gen­
+erally free to develop regulatory standards “either by gen­
+eral [legislative] rule or by individual order” in an adjudica­
+tion. SEC v. Chenery Corp., 332 U. S. 194, 202–203 (1947) 
+(Chenery II). Of course, if a statute requires rulemaking, 
+the affected agency must comply. Ibid. And that is what 
+respondents claim in passing here. Respondents' defense of 
+the decision below is based almost entirely on 5 U. S. C. 
+§ 706(2)(A) and related case law. But their brief also sug­
+gests that the FDA's decision to issue denials based on stand­
+ards developed in adjudication violated other provisions of 
+the APA and TCA that, they claim, required notice-and­
+comment rulemaking. See Brief for Respondents 47–49, 
+and n. 33. This echoes an argument the Court of Appeals 
+made in a short footnote. See 90 F. 4th, at 384, n. 5 (citing 
+21 U. S. C. §§ 387g(a)(1)(A), (a)(2), (c)–(d)). 
+We did not grant certiorari on that question, and without 
+adequate briefng, it would not be prudent to decide it here. 
+See Anza v. Ideal Steel Supply Corp., 547 U. S. 451, 461 
+(2006). Accordingly, we do not reach that question and ex­
+press no view on its merits.3 
+3 Respondents' amici offer numerous alternative grounds for affrmance. 
+Three of these arguments are based on the Constitution: (1) that the TCA 
+unconstitutionally delegated lawmaking power to the FDA with respect 
+Page Proof Pending Publication
+
+566 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+III 
+We now turn to the Court of Appeals' holding that the 
+FDA acted arbitrarily and capriciously. That decision was 
+multifaceted, but its analysis boils down to a central concern: 
+it faulted the FDA for allegedly changing the requirements 
+for premarket tobacco product applications between the time 
+of its guidance and the denials of respondents' applications. 
+The feature of our current case law on arbitrary-and­
+capricious review that addresses that issue is our change-in­
+position doctrine. Under that doctrine, we must ask 
+whether the FDA changed course and, if it did, whether it 
+offered satisfactory reasons for the change. Analysis of the 
+FDA's position prior to the denials at issue requires a close 
+reading of nuanced statements in a body of guidance docu­
+ments that evidence the agency's evolving assessment of the 
+relevant issues. Affected parties may have come away with 
+the impression that the agency would apply a less demanding 
+standard of proof than is evident in the denial orders the 
+FDA ultimately issued, but in the end, we cannot say that 
+to, among other things, the necessary contents of a premarket tobacco 
+product application, see Brief for Taxpayers Protection Alliance as Ami­
+cus Curiae 7–8; (2) that the relevant provisions of the TCA are unconstitu­
+tionally vague, see id., at 6–8; and (3) that respondents were denied due 
+process, see Brief for Washington Legal Foundation as Amicus Curiae 8– 
+11; Brief for Thirteen Members of Congress et al. as Amici Curiae 13– 
+16. Some amici also argue that the FDA violated our “major questions” 
+doctrine. See, e. g., Brief for Vaping Industry Stakeholders as Amici Cu­
+riae 30–34; Brief for Thirteen Members of Congress et al. as Amici Cu­
+riae 6–13. 
+Although these issues have a bearing on what appears to have been the 
+Court of Appeals' animating concern—i. e., that the FDA did not give 
+respondents and other applicants fair and accurate notice regarding what 
+it would insist that an application contain—these arguments fall outside 
+the scope of the question presented, were not passed on below, and were 
+not pressed in respondents' brief. We therefore decline to reach them. 
+See, e. g., Atlantic Marine Constr. Co. v. United States Dist. Court for 
+Western Dist. of Tex., 571 U. S. 49, 61 (2013). And our opinion should not 
+be read to suggest any view on their merits. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+567 
+Opinion of the Court 
+the FDA improperly changed its position with respect to sci­
+entifc evidence, comparative effcacy, or device type. With 
+respect to the FDA's guidance on marketing plans, we clarify 
+the appropriate legal standard governing claims of harmless 
+error, and we remand to the Fifth Circuit to apply that 
+standard in the frst instance. 
+A 
+We begin with our change-in-position doctrine. The APA 
+requires a reviewing court to “hold unlawful and set aside 
+agency action” found to be “arbitrary, capricious, an abuse of 
+discretion, or otherwise not in accordance with law.” 5 
+U. S. C. § 706(2)(A). Our well-worn arbitrary-and-capricious 
+standard ensures that an administrative agency “examine[d] 
+the relevant data and articulate[d] a satisfactory explanation 
+for its action including a rational connection between the 
+facts found and the choice made.” Motor Vehicle Mfrs. 
+Assn. of United States, Inc. v. State Farm Mut. Automobile 
+Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks 
+omitted). The scope of this review “is narrow,” and review­
+ing courts must exercise appropriate deference to agency de­
+cisionmaking and not substitute their own judgment for that 
+of the agency. Ibid. 
+Our case law identifes numerous ways in which an agency 
+may act arbitrarily and capriciously. The Fifth Circuit con­
+cluded that the FDA overstepped this standard in four such 
+ways. In its view, the FDA (1) “invent[ed] post hoc justif­
+cations” for its failure to consider applicants' marketing 
+plans; (2) failed to give “fair notice” of the evidentiary and 
+comparative requirements that would be imposed at the ap­
+plication stage; (3) changed its position regarding scientifc 
+evidence and device type; and (4) faulted respondent “for re­
+lying in good faith on [its] previous” guidance. 90 F. 4th, at 
+371–386. 
+All four of these principles orbit around the same basic 
+concern: an agency should not mislead regulated entities. 
+Page Proof Pending Publication
+
+568 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+The essence of respondents' argument is that the FDA told 
+them in guidance documents that it would do one thing and 
+then turned around and did something different when it re­
+viewed their applications. 
+The change-in-position doctrine is administrative law's an­
+swer to that problem. Under that doctrine, “[a]gencies are 
+free to change their existing policies as long as they provide 
+a reasoned explanation for the change,” “ `display awareness 
+that [they are] changing position,' ” and consider “ `serious 
+reliance interests.' ” Encino Motorcars, LLC v. Navarro, 
+579 U. S. 211, 221–222 (2016) (quoting FCC v. Fox Television 
+Stations, Inc., 556 U. S. 502, 515 (2009)). For reasons we 
+explain, the change-in-position doctrine provides the govern­
+ing framework here. 
+Respondents appear to recognize as much, although they 
+suggest at times that the applicable requirements are not 
+just part of arbitrary-and-capricious review but are rooted 
+in part on the constitutional right to due process. See Brief 
+for Respondents 28–29, 35, 44. In substance, however, there 
+is little difference in the standard they ask us to apply.4 
+They do not rely on four distinct administrative-law princi­
+ples; rather, their arguments before this Court rest primar­
+ily on the FDA's supposed change in position regarding appli­
+cation requirements. See id., at 29–42, 45–47; Tr. of Oral 
+Arg. 88. To the extent respondents raise a freestanding 
+“fair notice” argument, see id., at 90, the exact contours of 
+that contention are somewhat unclear. By asking us to af­
+frm the decision below, respondents do not now suggest that 
+4 At one point, however, respondents seem to suggest that the FDA 
+violated their due-process rights simply because it failed to provide clear 
+notice before it denied their applications and thus effectively put them out 
+of business. See Brief for Respondents 44. But the freestanding due-
+process question to which the respondents feetingly refer lies outside the 
+question on which we granted review and is not well developed in their 
+brief. We therefore decline to decide it. See Anza v. Ideal Steel Supply 
+Corp., 547 U. S. 451, 461 (2006). 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+569 
+Opinion of the Court 
+under the TCA the FDA “had an affrmative obligation to 
+issue specifc guidance” as to how it would evaluate favored 
+products. Brief for Respondents 33 (internal quotation 
+marks omitted). Instead, respondents merely support the 
+Fifth Circuit's conclusion that when an agency issues guid­
+ance, it cannot “change the requirements set forth therein 
+without consideration of applicants' reasonable reliance in­
+terests, proper notice to applicants, and a reasonable oppor­
+tunity for applicants to conform to the changed require­
+ments.” Ibid. It is unclear what, if any, daylight exists 
+between that conception of “fair notice” and our change-in­
+position doctrine. See, e. g., Encino Motorcars, 579 U. S., at 
+221–222 (“In explaining its changed position, an agency must 
+also be cognizant that longstanding policies may have engen­
+dered serious reliance interests that must be taken into 
+account. . . . [A] reasoned explanation is needed for disre­
+garding facts and circumstances that underlay or were 
+engendered by the prior policy” (internal quotation marks 
+omitted)). 
+B 
+The change-in-position doctrine asks two questions. The 
+frst is whether an agency changed existing policy.5 
+And we 
+have suggested that this occurs when an agency acts “incon­
+5 The parties assume that the change-in-position doctrine applies when 
+an agency abandons a position it frst articulated in a nonbinding guidance 
+document. We have traditionally applied the change-in-position doctrine 
+when an agency shifts from a position expressed in a more formal setting. 
+See, e. g., FCC v. Fox Television Stations, Inc., 556 U. S. 502, 517 (2009). 
+True, we have on at least one occasion applied the doctrine when an 
+agency altered a position frst stated in a policy statement. See Depart­
+ment of Homeland Security v. Regents of Univ. of Cal., 591 U. S. 1, 30 
+(2020). But as we explained in that case, the policy statement instituted 
+“a standardized review process” that “effectively” resembled adjudication. 
+Id., at 18. Given neither party has pressed this argument here, we as­
+sume, without deciding, that the change-in-position doctrine applies to an 
+agency's divergence from a position articulated in nonbinding guidance 
+documents. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+570 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+sistent[ly]” with an “earlier position,” id., at 224, performs 
+“a reversal of [its] former views as to the proper course,” 
+State Farm, 463 U. S., at 41, or “disavow[s]” prior “inconsist­
+ent” agency action as “no longer good law,” Fox Television, 
+556 U. S., at 517 (internal quotation marks omitted). For 
+example, we have held that an agency changed its position 
+when it rescinded a prior regulation, see State Farm, 463 
+U. S., at 41–42, “expand[ed] the scope of its enforcement ac­
+tivity,” Fox Television, 556 U. S., at 517, and “abandon[ed a] 
+decades-old practice” applied in enforcement actions, Encino 
+Motorcars, 579 U. S., at 218. 
+Once a change in agency position is identifed, the doctrine 
+poses a second question: Did the agency “display awareness 
+that it is changing position” and offer “good reasons for the 
+new policy”? Fox Television, 556 U. S., at 515. At this sec­
+ond step, the agency does not need to show “that the reasons 
+for the new policy are better than the reasons for the old 
+one.” Ibid. Nor must it “provide a more detailed justif­
+cation than what would suffce for a new policy created on a 
+blank slate.” Ibid. But the agency must “be cognizant 
+that longstanding policies may have `engendered serious reli­
+ance interests that must be taken into account.' ” Encino 
+Motorcars, 579 U. S., at 221–222 (quoting Fox Television, 556 
+U. S., at 515). 
+Echoing the Fifth Circuit, respondents claim that the FDA 
+violated the change-in-position doctrine with respect to the 
+four principal themes discussed above. See supra, at 556– 
+560. First, according to respondents, the FDA, after initially 
+telling applicants that no specifc kinds of scientifc evidence 
+were required, turned around and rejected all applications 
+lacking evidence from a randomized controlled trial or longi­
+tudinal cohort study. See Brief for Respondents 37, 40–42. 
+Second, respondents claim, the FDA told applicants they had 
+discretion to choose appropriate comparator products, but it 
+ultimately denied applications on the ground that they failed 
+to make specifc comparisons between dessert-, candy-, and 
+
+Cite as: 604 U. S. 542 (2025) 
+571 
+Opinion of the Court 
+fruit-flavored products, on the one hand, and tobacco-
+favored products on the other. See id., at 27–36. Third, 
+respondents claim that the FDA abandoned earlier guidance 
+about the importance of device type and instead denied au­
+thorization to all dessert-, candy-, and fruit-favored e-
+cigarette products regardless of device type. See id., at 45– 
+47. And fourth, according to respondents, the FDA went 
+back on its word by failing even to consider their marketing 
+plans. See id., at 49–50. 
+As to the frst three issues, we conclude that the FDA's 
+denial orders were suffciently consistent with its predeci­
+sional guidance and thus did not run afoul of the change-in­
+position doctrine. As to the failure to consider marketing 
+plans, the FDA does not seek review of the Fifth Circuit's 
+fnding of error. See Brief for Petitioner 31. Rather, it 
+asks us to clarify the harmless-error rule and remand for 
+application of the proper standard. See id., at 38. We 
+agree with the FDA that that is the appropriate course of 
+action. 
+1 
+We frst address the FDA's position on scientifc evidence. 
+In respondents' view, the FDA initially stated that manufac­
+turers would not need to provide specifc kinds of studies 
+like randomized controlled trials or longitudinal cohort stud­
+ies but then treated such evidence as essential. 
+a 
+Respondents express frustration about the lack of clear 
+prior notice regarding the type of scientifc evidence that 
+was essential for approval of an application, but we cannot 
+agree with their argument that the FDA went back on any 
+commitments made in the guidance it provided before ruling 
+on respondents' applications. 
+Both the TCA itself and the FDA's guidance left the 
+agency broad discretion to decide what sort of scientifc evi­
+dence an applicant was required to submit. The TCA itself 
+Page Proof Pending Publication
+
+572 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+imposes only basic requirements on this matter. It says 
+that the agency's determination of what “would be appro­
+priate for the protection of the public health” must be made 
+based on either “well-controlled investigations, which may 
+include 1 or more clinical investigations by experts qualifed 
+by training and experience to evaluate the tobacco product,” 
+21 U. S. C. § 387j(c)(5)(A) (emphasis added), or—and this is 
+the point that is critical here—other “valid scientifc evi­
+dence” that “is suffcient to evaluate the tobacco product,” 
+§ 387j(c)(5)(B). The TCA leaves it to the FDA to decide 
+what constitutes a “well-controlled investigatio[n]” or other 
+“valid scientifc evidence” that is “suffcient.” 
+Before ruling on respondents' and other manufacturers' 
+applications, the FDA addressed the issue of scientifc evi­
+dence in a series of lengthy documents and oral presenta­
+tions by agency offcials, but it is hard to fnd in all this ver­
+biage any specifc commitments about exactly what sorts of 
+scientifc evidence an applicant would have to provide. As 
+we will detail below when we discuss the particulars of re­
+spondents' applications, the FDA commented on the strength 
+of various types of evidence and how particular types of evi­
+dence would likely be evaluated, but at no point did it lay 
+down any clear test. 
+For example, during an October 23, 2018, public meeting, 
+an agency offcial said that “[i]n most situations it is likely 
+that at least some [new] analytical testing specifc to the 
+product would be conducted to support” an application. 
+2018 Presentation Video, at 2:12:35–2:12:44 (emphasis added). 
+The offcial then offered examples such as “randomized con­
+trolled clinical trials”; “alternatives” like “pharmacokinetic,” 
+“pharmacodynamic,” “biomarker,” “topography,” or “focus 
+group studies”; published peer-reviewed literature; and liter­
+ature reviews more generally. Id., at 2:13:07–2:14:44. But 
+the offcial never stated that any particular type of study was 
+necessary. On the contrary, the FDA acknowledged that it 
+was open to evidence besides “new nonclinical or clinical 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+573 
+Opinion of the Court 
+studies.” 2018 Presentation 26. And the FDA promised 
+that it would consider evidence “bridging” new tobacco prod­
+ucts to already marketed products whose safety was backed 
+by “existing clinical, nonclinical, or product information.” 
+Id., at 18, 27. None of this amounted to anything like a 
+hard-and-fast commitment as to the minimum evidence the 
+agency would require for marketing authorization.6 
+A June 2019 guidance document was similarly noncommit­
+tal. After reiterating the statutory requirement of “well­
+controlled investigations,” the document recognized that the 
+“relatively new entrance” of e-cigarettes “on the U. S. mar­
+ket” meant that “limited data may exist from scientifc stud­
+ies and analyses.” App. 28 (citing 21 U. S. C. § 387j(c)(5)(A)). 
+As a result, the document stated, the FDA would consider 
+“other `valid scientifc evidence' if found suffcient.” App. 
+28. But it cautioned that “[n]onclinical studies alone are 
+generally not suffcient.” Ibid. 
+The guidance document went on to give examples of “other 
+evidence” that might suffce, but in doing so, it cautioned 
+about the need for scientifc rigor. For example, while stat­
+ing that applicants could cite “data from the published litera­
+ture or government-sponsored databases,” it warned that 
+such data must be “adequately bridged to your product” with 
+“a scientifc rationale.” Id., at 98. The document told man­
+ufacturers that they could also cite “[p]ublished literature 
+reviews (including meta-analysis),” but that such evidence is 
+“considered a less robust form of support.” Id., at 100. 
+And applicants were advised that they could “conduc[t] inde­
+pendent analyses of published studies,” but that “if critical 
+6 It is true that the FDA's accompanying slideshow represented that 
+“[n]o specifc studies” would be required for a premarket tobacco product 
+application. 2018 Presentation 26. But in light of what the TCA itself 
+demanded (i. e., “well-controlled investigations” or other “suffcient” “sci­
+entifc evidence”) and the FDA offcial's numerous examples throughout 
+the presentation, the obvious import of the “[n]o specifc studies” state­
+ment was that many different types of studies could potentially suffce. 
+Page Proof Pending Publication
+
+574 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+study details are not submitted, the studies may not be use­
+ful in FDA's review.” Id., at 102. 
+A fair summary of the main point made in all this guidance 
+is that (a) it was not essential for manufacturers to submit 
+evidence based on “well-controlled investigations,” such as 
+randomized controlled trials or longitudinal cohort studies, 
+but (b) if they did not do so, they would have to provide 
+rigorous scientifc evidence that the sale of their particular 
+products would be appropriate for the protection of the pub­
+lic health. In this case, the applicants did not submit ran­
+domized controlled trials or longitudinal cohort studies, so 
+the fate of their applications turned on whether they submit­
+ted “other evidence” that met the FDA's standard of scien­
+tifc rigor and relevance to their product. The FDA re­
+jected respondents' applications because it concluded that its 
+“other evidence” test was not met, and the explanation in its 
+denial orders echoed statements made at various points in 
+its earlier guidance. 
+Both respondents relied on a “comprehensive review of the 
+scientifc literature.” Id., at 303, 392. But respondents had 
+notice from the 2019 guidance that the FDA considered liter­
+ature reviews “a less robust form of support.” Id., at 100. 
+The 2019 guidance also instructed that applicants submitting 
+literature reviews should, among other things, “[i]nclude 
+comparative assessments of the health risks associated with 
+use of [a manufacturer's] new tobacco product compared to 
+the risks associated with quitting tobacco product use, using 
+other tobacco products, and never using tobacco products.” 
+Id., at 101. Respondents' literature review did the opposite. 
+It concluded that “there is not enough evidence . . . to deter­
+mine whether e-cigarette favors aid in smoking cessation.” 
+Id., at 475. 
+One of the respondents, Vapetasia, submitted results from 
+a cross-sectional survey fnding that “82.99% of survey re­
+spondents indicated that e-cigarettes helped them quit smok­
+ing combustible tobacco.” 41 F. 4th, at 436. But the FDA 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+575 
+Opinion of the Court 
+concluded the survey was not adequately tied to Vapetasia's 
+favored products. App. to Pet. for Cert. 280a. That re­
+quirement echoed the 2019 guidance's advice that manufac­
+turers submitting evidence from “new nonclinical . . . stud­
+ies” should “explain why [a] study is relevant to use for the 
+[manufacturer's] product (e. g., the similarities between the 
+product, product use, or product market).” App. 98–99. 
+Based on the FDA's largely noncommittal guidance on sci­
+entifc evidence and its specifc reasons for rejecting respond­
+ents' applications, we cannot say that the agency deviated 
+“from a prior policy sub silentio or simply disregard[ed]” 
+what it had previously said. Fox Television, 556 U. S., at 
+515. In line with the agency's prior guidance, each denial 
+order was based on the applicant's failure to provide either 
+evidence from well-controlled investigations, such as “a ran­
+domized controlled trial and/or longitudinal cohort study,” 
+see App. to Pet. for Cert. 167a, or other evidence that was 
+found to be “reliabl[e] and robus[t],” id., at 167a–168a. No 
+change in position occurred in this respect. 
+b 
+Contrary to respondents' contention, this conclusion is not 
+undermined by the FDA's scientifc-review form, which con­
+tained checkboxes to indicate whether an applicant submit­
+ted a randomized controlled study (Criterion A), a longitudi­
+nal cohort study (Criterion B), or other evidence “related to 
+potential beneft to adults” (Criterion C). App. 615–638; see 
+Brief for Respondents 32. Criterion C appears to defeat re­
+spondents' argument, but they contend that the FDA made 
+it clear that this criterion demanded a study of the effect of 
+favored products on adult smokers “ ` “over time” ' ” and that 
+this requirement duplicated Criterion B, which looked for a 
+“longitudinal cohort study.” Id., at 37. 
+This argument fails because a “longitudinal cohort study” 
+and evidence of a product's effects “over time” are not the 
+same thing. The term “longitudinal study” is typically used 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+576 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+to describe a particular kind of long-term study, namely, 
+one that “employ[s] continuous or repeated measures to fol­
+low particular individuals over prolonged periods of time— 
+often years or decades.” 
+E. Caruana, M. Roman, J. 
+Hernández-Sánchez, & P. Solli, Longitudinal Studies, 7 J. 
+Thoracic Disease E537 (2015). Not every study that consid­
+ers a product's effects “over time” falls within this 
+understanding.7 
+c 
+Based on the FDA's internal memoranda from the summer 
+of 2021, respondents argue that the agency secretly enforced 
+a new requirement that manufacturers must submit evidence 
+from either a randomized control trial or longitudinal cohort 
+study. See Brief for Respondents 31–32. Recall that the 
+FDA's July 9, 2021, memorandum stated that the failure to 
+submit such evidence would constitute a “fatal faw” that 
+would “likely” result in denial of an application. App. 243. 
+Even though this statement, like most of what the FDA said 
+in its guidance, was not categorical, it certainly suggested a 
+much harder stance than was implied by the FDA's public 
+statements, which told applicants that “other evidence” 
+might be capable of proving a new tobacco product's appro­
+priateness for the protection of public health. 
+Respondents suggest that the FDA surreptitiously applied 
+the “fatal faw” memorandum, and as evidence, they note 
+that until well after their applications were denied, the FDA 
+7 In a related argument, respondents argue that the FDA “repeatedly 
+represented that it did not expect long-term clinical studies” in predeci­
+sional guidance but later required such studies. Brief for Respondents 
+41. But a “long-term study” and evidence “over time” are not the same 
+thing. As the 2019 guidance explained, the FDA describes “long-term 
+studies” as “those studies that are conducted over six months or longer.” 
+App. 29. Nothing in the denial orders suggested that the FDA imposed 
+a rigid requirement that evidence come from such studies. And the 2019 
+guidance also underscored the FDA's expectation that applicants present 
+evidence about the “possible long-term health impact” of their new tobacco 
+products. Ibid. 
+
+Cite as: 604 U. S. 542 (2025) 
+577 
+Opinion of the Court 
+rejected all applications for favored products. But agencies 
+are entitled to a presumption of regularity, Citizens to Pre­
+serve Overton Park, Inc. v. Volpe, 401 U. S. 402, 415 (1971), 
+and the record offers enough support for us to conclude that 
+the FDA never enforced a rigid “fatal faw” standard. 
+To start, a later internal memorandum dated August 17, 
+2021, appeared to contradict the “fatal faw” memorandum. 
+The new memorandum represented that the FDA “would 
+also consider evidence from another study design” besides 
+randomized controlled trials and longitudinal cohort studies, 
+“provided that it could reliably and robustly assess behavior 
+change” and “compar[e] users of” dessert-, candy-, and fruit-
+favored “products with those of tobacco-favored products.” 
+App. 247, n. ix. The FDA also acknowledged that “indirect 
+evidence or bridged data from the literature might still be 
+appropriate for many new products” too. Id., at 266. Even 
+though the FDA predicted these “other types of evidence” 
+would “not likely be suffciently robust or direct,” the August 
+17, 2021, memorandum is unambiguous that the FDA would 
+nevertheless consider such evidence. Id., at 267. 
+This memo might be viewed as dooming any argument 
+based on the earlier “fatal faw” memorandum, but on Au­
+gust 25, 2021, the FDA rescinded the August 17, 2021, memo­
+randum and represented that it would “not consider or rely 
+on [it] as a supporting document.” Id., at 282. 
+Rescission of the August 17 memorandum raises the ques­
+tion whether that action effectively reinstated the July 9, 
+2021, “fatal faw” memorandum or was a pretext to mask the 
+FDA's adherence to secret criteria. But the FDA repre­
+sents that these internal memoranda played no role in its 
+review of applications, see Reply Brief 11–12, and for us to 
+peel back the curtain on that representation would have re­
+quired respondents to make a “strong showing of bad faith 
+or improper behavior,” Overton Park, 401 U. S., at 420; see 
+also Department of Commerce v. New York, 588 U. S. 752, 
+781 (2019) (“[J]udicial inquiry into `executive motivation' rep­
+Page Proof Pending Publication
+
+578 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+resents `a substantial intrusion' into the workings of another 
+branch of Government and should normally be avoided” 
+(quoting Arlington Heights v. Metropolitan Housing Devel­
+opment Corp., 429 U. S. 252, 268, n. 18 (1977))). Respond­
+ents have not surmounted the high standard that must be 
+met to warrant such a “substantial intrusion” into the Execu­
+tive's functioning. Id., at 268, n. 18 (internal quotation 
+marks omitted). 
+We thus conclude that respondents failed to show that the 
+FDA changed its position with respect to the scientifc evi­
+dence supporting premarket tobacco product applications. 
+2 
+Next, we turn to the FDA's comparative-effcacy require­
+ment, which called on manufacturers to compare the health 
+effects of their dessert-, candy-, and fruit-favored products 
+to those of tobacco-favored products. On respondents' 
+reading of the record, the FDA initially gave applicants 
+broad discretion to select appropriate comparators for their 
+products, but it later categorically rejected applications that 
+failed to show that “favored e-cigarettes promote more 
+switching than unfavored” or tobacco-favored e-cigarettes. 
+90 F. 4th, at 376–377; accord, Brief for Respondents 29–33. 
+a 
+The record does not suggest that the FDA contradicted 
+its predecisional guidance by requiring certain cross-favor 
+comparisons. To start, the TCA expressly contemplates 
+comparisons of different tobacco products. It requires an 
+applicant to provide “full reports of all information . . . con­
+cerning investigations which have been made to show . . . 
+whether [its] tobacco product presents less risk than other 
+tobacco products.” 21 U. S. C. § 387j(b)(1)(A) (emphasis 
+added). Moreover, the FDA's determination that a new to­
+bacco product is “appropriate for the protection of the public 
+health” is an inherently comparative judgment. The FDA 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+579 
+Opinion of the Court 
+must account for the “increased or decreased likelihood that 
+existing users of tobacco products will stop using such prod­
+ucts” and the “increased or decreased likelihood that those 
+who do not use tobacco products will start using such prod­
+ucts.” § 387j(c)(4). This balancing test calls out for various 
+types of comparisons, including comparisons between new 
+tobacco products and those that are already available, as well 
+as between different types of new tobacco products that may 
+attract new smokers. 
+Through its predecisional guidance, the FDA elaborated 
+on the types of comparisons that would be helpful. Echoing 
+the TCA, the June 2019 guidance document recommended 
+that a manufacturer “compare the health risks of its product 
+to both products within the same category and subcategory, 
+as well as products in different categories as appropriate.” 
+App. 30. The FDA went on to explain what it means for 
+manufacturers to make comparisons to “similar, marketed to­
+bacco products in the same category.” Id., at 58. “For ex­
+ample,” it advised, “if your [application] is for an e-liquid, 
+we recommend a comparison to other e-liquids with similar 
+nicotine content, favors, and other ingredients, used in the 
+same manner and under similar conditions.” Ibid. The 
+plain implication of this statement is that the FDA might 
+consider whether an application for a favored product in­
+cluded a comparison with other products in the favored 
+category. 
+Other parts of the 2019 guidance also underlined the 
+FDA's concern about “the potential impact of favors on 
+product toxicity and appeal to youth and young adults.” Id., 
+at 87. The FDA noted that it “considers the appeal and use 
+of [e-cigarette] product favors important in ascertaining the 
+health risks of these products” and thus recommended “sci­
+entifc reviews of favors.” Id., at 87–88. Specifcally, it 
+called on manufacturers to “examine the impact of the favor­
+ing on consumer perception . . . especially given the attrac­
+tiveness of favors to youth and young adults.” Id., at 88. 
+Page Proof Pending Publication
+
+580 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+Further, in its 2020 enforcement guidance, the FDA tele­
+graphed its view that dessert-, candy-, and fruit-favored 
+e-cigarette products are more likely than tobacco- and 
+menthol-favored products to appeal to the young. The 
+FDA noted its intent to “prioritize enforcement of favored” 
+e-cigarette products “other than tobacco- and menthol-
+favored products,” id., at 160, and observed that “youth use 
+of mint- and fruit-favored [e-cigarette] products is higher 
+than that of menthol- and tobacco-favored [e-cigarette] prod­
+ucts.” Id., at 163. The FDA also relied on data that favors 
+like tobacco and menthol “were preferred more by adults 
+than youth.” 8 
+Id., at 162. 
+When it reviewed respondents' applications, the FDA did 
+not contradict any previously announced position with re­
+spect to the comparative effects of differently favored prod­
+ucts. As respondents' marketing denial orders stated, their 
+applications were unsuccessful because they failed to “dem­
+onstrat[e] the beneft of” their dessert-, candy-, and fruit-
+favored e-cigarette “products over an appropriate compara­
+tor tobacco-favored” e-cigarette product. App. to Pet. for 
+Cert. 167a. Admittedly, the FDA has not pointed us to any 
+portion of its predecisional guidance that said in so many 
+words that manufacturers must draw that precise compari­
+son. And, in fact, the 2019 guidance gave manufacturers 
+some discretion in choosing appropriate comparators as long 
+as the “FDA [could] understand [an] applicant's rationale and 
+justifcation for comparators chosen.” App. 30. But the 
+FDA's comparative-effcacy standard was a natural conse­
+quence of its predecisional guidance, which highlighted, 
+among other things, (1) the need for robust cross-product 
+8 An initial draft of the 2020 guidance exempted from enforcement prior­
+ity mint-favored products, treating them similarly to tobacco- and 
+menthol-favored products. But in the revised 2020 guidance that we dis­
+cuss here, the FDA no longer exempted mint-favored products based on 
+new evidence that youth are also drawn to mint favors. See App. 162– 
+164. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+581 
+Opinion of the Court 
+comparisons (including on the dimension of favor) and (2) 
+the FDA's heightened concern with dessert-, candy-, and 
+fruit-favored products compared to tobacco- and menthol-
+favored products. Such a predictable outgrowth from pre­
+vious guidance is not an “[u]nexplained inconsistency” 
+amounting to a “change” under the change-in-position doc­
+trine. National Cable & Telecommunications Assn. v. 
+Brand X Internet Services, 545 U. S. 967, 981 (2005); cf. Long 
+Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 174 (2007) 
+(“The Courts of Appeals have generally interpreted this to 
+mean that the fnal rule the agency adopts must be a logical 
+outgrowth of the rule proposed” (internal quotation marks 
+omitted)). 
+b 
+Respondents contend that the FDA “said nothing about 
+comparing” dessert-, candy-, and fruit-favored “products to 
+tobacco-favored products,” Brief for Respondents 27, and 
+even suggested manufacturers could “freely select” compara­
+tors as long as they provided adequate “justifcation or ra­
+tionale” for their comparator choice, id., at 30–31. 
+As we noted, respondents are correct that the FDA did not 
+provide this precise instruction in its predecisional guidance. 
+But, as an FDA offcial noted at the 2018 public presentation, 
+manufacturers were encouraged throughout the application 
+process to think hard about “what is or are the most ap­
+propriate comparators” to their products. 2018 Presenta­
+tion Video, at 1:57:37–1:57:42. And the agency's subsequent 
+guidance emphasized the importance of cross-product compa­
+rators and the FDA's specifc worry that dessert-, candy-, 
+and fruit-favored products would appeal to youth more than 
+tobacco- and menthol-favored products. The FDA is thus 
+better understood as having extended, not reversed, its pre­
+vious guidance. See supra, at 580 and this page. 
+Quite tellingly, respondents appear to have received the 
+FDA's message on this front. Their applications are replete 
+with statements attempting (albeit unsuccessfully) to draw 
+Page Proof Pending Publication
+
+582 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+comparisons between dessert-, candy-, and fruit-favored and 
+tobacco-favored products—the same sort of comparisons for 
+which the FDA allegedly provided no notice. See, e. g., App. 
+320 (“Another recent survey of more than 69,000 adult vapers 
+found that just 16% identifed tobacco, menthol, or mint as 
+favors they used most often; the vast majority preferred 
+fruit and sweet favors”); ibid. (“ `Fruity' favor was the num­
+ber one favor preference by 49.98% of all respondents. 
+Only about 3% of all respondents stated that they preferred 
+no favor”); id., at 321 (noting that a third of surveyed smok­
+ers “stated they started out using tobacco or menthol favors 
+but now always or almost always use other favors”). All 
+that is to say, respondents' applications are themselves 
+strong evidence that regulated entities had adequate notice 
+of the sort of comparative analysis the FDA anticipated. 
+Furthermore, even assuming the predecisional guidance 
+did not perfectly predict the comparative-effcacy standard 
+ultimately applied to applications, the FDA was not required 
+to issue such guidance in the frst place. Respondents do 
+not argue that the TCA imposed an affrmative obligation on 
+the FDA to spell out in detail how it expected applicants to 
+compare a new tobacco product to other tobacco products. 
+See Brief for Respondents 33. Rather, as we have ex­
+plained, the FDA had discretion to work out the meaning of 
+the TCA's comparative standard when evaluating premarket 
+tobacco product applications. See 21 U. S. C. §§ 387j(b) 
+(1)(A), (c)(4). A contrary rule would be in tension with 
+Chenery II's teaching that, absent a statutory prohibition, 
+agencies may generally develop regulatory standards 
+through either adjudication or rulemaking. 332 U. S., at 
+202–203. 
+3 
+Finally, we turn to the issue of device type. In respond­
+ents' view, the FDA's 2020 guidance saw a material distinc­
+tion between cartridge-based and other favored products, 
+but when it came to ruling on applications, the FDA effec­
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+583 
+Opinion of the Court 
+tively imposed a fat ban on all favored products. Brief for 
+Respondents 45–47. 
+a 
+We cannot agree with respondents that the denial orders' 
+treatment of device type was “inconsistent” with any “ear­
+lier position.” Encino Motorcars, 579 U. S., at 224. The 
+2020 guidance explained how the FDA “intend[ed] to priori­
+tize [its] enforcement resources.” App. 129. Specifcally, 
+the agency planned to target three types of e-cigarette prod­
+ucts: (1) “[f]lavored, cartridge-based” products; (2) “[a]ll 
+other [e-cigarette] products for which the manufacturer has 
+failed to take (or is failing to take) adequate measures to 
+prevent minors' access”; and (3) “[a]ny [e-cigarette] products 
+targeted to, or whose marketing is likely to promote use by, 
+minors.” Id., at 145. Admittedly, on any reading of this 
+guidance document, the FDA's central concern was the frst 
+category because data suggested “youth are more likely to 
+use certain favored, cartridge-based [e-cigarette] products.” 
+Id., at 147. 
+But nothing in the 2020 guidance suggested the FDA 
+would decline to take enforcement action against other prod­
+ucts that might be appealing to the young. In fact, the 
+FDA's enumeration of the second and third enforcement pri­
+orities, which are not limited to favored cartridge-based 
+products, supports the contrary conclusion. So when the 
+FDA ultimately denied authorization to respondents' fa­
+vored (though non-cartridge) products, it did not reverse 
+course. Rather, it followed through on the 2020 guidance's 
+warning that the agency would also prioritize enforcement 
+against manufacturers “whose [products'] marketing is likely 
+to promote use by . . . minors.” Id., at 145. Indeed, the 
+FDA's marketing denial orders stated that respondents' ap­
+plications were “insuffcient to demonstrate that the[ir] prod­
+ucts would provide an added beneft that is adequate to out­
+weigh the risks to youth.” App. to Pet. for Cert. 168a. 
+That is a consistent application of the 2020 guidance's en­
+Page Proof Pending Publication
+
+584 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+forcement framework or, at the very least, an application 
+that did not “revers[e the FDA's] former views as to the 
+proper course.” State Farm, 463 U. S., at 41. 
+This case is unlike Fox Television, in which we held that 
+an agency changed position by “expanding the scope of its 
+enforcement activity.” 556 U. S., at 517. That case con­
+cerned the Federal Communications Commission's (FCC) en­
+forcement of the federal indecency ban against the use of 
+offensive words on broadcast television. Initially, the FCC 
+distinguished between literal and nonliteral uses of offensive 
+words and determined that feeting uses of nonliteral offen­
+sive words were not actionably indecent. See id., at 508. 
+But then, in a subsequent adjudication, the FCC eliminated 
+that safe harbor for nonliteral expletives and explained that 
+even a single use of an offensive word was actionably inde­
+cent. See ibid. We deemed that shift in enforcement pol­
+icy “a change” for purposes of the change-in-position doc­
+trine. See id., at 517. 
+Here, in contrast, the FDA's 2020 guidance did not estab­
+lish “a safe harbor” for non-cartridge-based products. Id., 
+at 518. True, the 2020 guidance unmistakably emphasized 
+cartridge-based products, but it said nothing to suggest 
+dessert-, candy-, and fruit-favored products for open-system 
+e-cigarettes would escape regulatory scrutiny. And further 
+distinguishing Fox Television, the FDA's actions here did not 
+“br[eak] new ground.” Id., at 517. Indeed, there was no 
+new ground to break because respondents' denial orders 
+were part of the FDA's frst major exercise of its new author­
+ity over tobacco products under the TCA. In other words, 
+the FDA could not “expan[d] the scope of” previously nonex­
+istent “enforcement activity.” Ibid. 
+Even if the FDA had changed its position, it offered “good 
+reasons” for looking beyond cartridge-based e-cigarette 
+products, id., at 515, namely, that there was evidence from 
+national surveillance data that youth demand had moved 
+from favored cartridge-based products to favored dispos­
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+585 
+Opinion of the Court 
+able products, App. to Pet. for Cert. 191a–192a. From this, 
+the FDA drew the conclusion that “across these different 
+device types, the role of favor is consistent.” Id., at 191a. 
+If one type of favored product were removed from the mar­
+ket, the FDA concluded, youth would “migrate to another” 
+type of favored product. Id., at 192a. So the FDA decided 
+to focus on the “role of favors . . . across tobacco product 
+categories.” Id., at 191a. The FDA made this “conscious 
+change of course” because it “believe[d] it to be better,” and 
+the agency gave “good reasons” for the change. Fox Televi­
+sion, 556 U. S., at 515. 
+Respondents cannot claim that the FDA's revised enforce­
+ment priorities upset a “legitimate reliance” interest. Smi­
+ley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 
+(1996). At most, the 2020 guidance may have led respond­
+ents to believe that the FDA was more likely to authorize 
+their open-system products than other manufacturers' 
+cartridge-based products. But such a belief about how an 
+agency is likely to exercise its enforcement discretion is not 
+a “serious reliance interes[t].” Fox Television, 556 U. S., at 
+515. Our prior change-in-position cases have set a much 
+higher bar, requiring, for example, “decades of industry reli­
+ance on [an agency's] prior policy.” Encino Motorcars, 579 
+U. S., at 222. Here, in contrast, respondents could not have 
+built up decades of reliance because they were part of the 
+very frst wave of marketing denials under the FDA's newly 
+minted jurisdiction over tobacco products. 
+We thus hold that the FDA's treatment of device type, 
+even if it evolved over time, did not violate the change-in­
+position doctrine. 
+b 
+Respondents take issue with the FDA's explanation that it 
+changed enforcement priorities based on evidence that youth 
+demand shifted from cartridge-based products to disposable 
+products. In respondents' view, that evidence had nothing 
+to do with products such as theirs that are intended for open­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+586 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+system e-cigarette products. See Brief for Respondents 45– 
+46. And respondents cite evidence from a study fnding that 
+between 2020 and 2021 high-school-student demand for de­
+vices compatible with favored bottled e-liquids actually de­
+creased. See id., at 46, and n. 32 (citing E. Park-Lee et al., 
+Centers for Disease Control and Prevention, Notes From the 
+Field: E-Cigarette Use Among Middle and High School Stu­
+dents—National Youth Tobacco Survey, United States, 2021, 
+70 Morbidity and Mortality Weekly Rep. 1387, 1387–1388 
+(2021)). 
+This counterargument is not persuasive. Even though 
+the FDA did not cite evidence that was specifcally about 
+increasing youth demand for open-system e-cigarette prod­
+ucts, the FDA drew a reasonable inference based on the data 
+before it: namely, that the rapid shift in youth demand from 
+favored cartridge-based products to favored disposable 
+products strongly suggested that youth were most strongly 
+drawn by favor rather than device type. We see no reason 
+why the FDA could not extrapolate from that data and con­
+clude that young people would be drawn to favored products 
+for open-system e-cigarettes. Regardless, we are not posi­
+tioned in this arbitrary-and-capricious challenge to consider 
+respondents' evidence from a study that postdates the fling 
+of their applications and is, in any event, outside “the admin­
+istrative record already in existence.” Camp v. Pitts, 411 
+U. S. 138, 142 (1973) (per curiam). Nor is respondents' evi­
+dence of suffcient heft to call into question whether the 
+FDA's “factual determinations” about the powerful effect of 
+favor is supported by “substantial evidence” in the “existing 
+administrative record.” Biestek v. Berryhill, 587 U. S. 97, 
+102 (2019). 
+C 
+That brings us to the FDA's guidance concerning market­
+ing plans. Recall that the FDA does not contest the Fifth 
+Circuit's fnding that it changed position regarding the sub­
+mission of marketing plans, but it argues that this error was 
+harmless. This question presents a diffcult problem. It 
+
+Cite as: 604 U. S. 542 (2025) 
+587 
+Opinion of the Court 
+requires us to reconcile the so-called remand rule developed 
+in SEC v. Chenery Corp., 318 U. S. 80, 88, 93–95 (1943) 
+(Chenery I), and Chenery II, 332 U. S., at 196–197, with the 
+APA's instruction that reviewing courts must take “ `due ac­
+count' ” of “ `the rule of prejudicial error' ” that “ordinarily 
+appl[ies] in civil cases,” Shinseki v. Sanders, 556 U. S. 396, 
+406 (2009) (quoting 5 U. S. C. § 706). 
+1 
+In Chenery I, the Court announced the now-bedrock prin­
+ciple that an agency action cannot stand “unless the grounds 
+upon which the agency acted in exercising its powers were 
+those upon which its action can be sustained.” 318 U. S., at 
+95. There, we rejected the Securities and Exchange Com­
+mission's belated request to affrm its action on an alterna­
+tive ground raised for the frst time in litigation. Id., at 92– 
+94. We reasoned that when Congress vests an agency with 
+authority to make “a determination of policy or judgment” 
+and the agency fails to exercise that authority, “a judicial 
+judgment cannot be made to do service for an administrative 
+judgment.” Id., at 88. Upholding agency action on an al­
+ternative ground not considered by the agency, the Court 
+reasoned, would “intrude upon the domain which Congress 
+. . . exclusively entrusted to an administrative agency.” 
+Ibid. We reaffrmed this principle in Chenery II, see 332 
+U. S., at 196–197, and a necessary implication of that princi­
+ple is that the better course when an agency error is identi­
+fed is for the reviewing court, “except in rare circum­
+stances,” “to remand to the agency for additional 
+investigation or explanation,” Florida Power & Light Co. v. 
+Lorion, 470 U. S. 729, 744 (1985). That implication of Chen­
+ery is colloquially referred to as the “remand rule.” See 
+INS v. Orlando Ventura, 537 U. S. 12, 18 (2002) (per curiam) 
+(internal quotation marks omitted). 
+Three years after Chenery I was handed down, Congress 
+enacted the APA. Ch. 324, 60 Stat. 237. At that time, Rule 
+61 of the Federal Rules of Civil Procedure instructed courts 
+Page Proof Pending Publication
+
+588 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+not to disturb a judgment or order unless refusal to do so 
+would be “inconsistent with substantial justice.” Fed. Rule 
+Civ. Proc. 61 (1939). The APA picked up on this principle 
+and required courts reviewing agency action to take “due 
+account . . . of the rule of prejudicial error.” §706. Taking 
+“due account” of a rule is not literally the same as applying 
+that rule lock, stock, and barrel. The most natural interpre­
+tation of the APA's language is thus that reviewing courts 
+should adapt the “rule of prejudicial error” applicable in or­
+dinary civil litigation (also known as the harmless-error rule) 
+to the administrative-law context, which, of course, includes 
+the remand rule. 
+2 
+The FDA's failure to consider marketing plans and its cho­
+sen arguments in litigation have set the remand rule and the 
+APA's harmless-error principle in tension. Despite assuring 
+manufacturers in predecisional guidance that their market­
+ing plans would be “critical,” the FDA refused to consider 
+respondents' marketing plans when it reviewed their pre­
+market tobacco product applications. 84 Fed. Reg. 50581. 
+Based on its experience, the FDA opined that marketing and 
+access restrictions on favored e-cigarette products are, as a 
+practical matter, categorically insuffcient to sustain an oth­
+erwise inadequate application. See App. to Pet. for Cert. 
+200a, n. xix. The Fifth Circuit held that this about-face was 
+arbitrary and capricious, see 90 F. 4th, at 372–373, and the 
+FDA has “not sought review of the Fifth Circuit's threshold 
+fnding of error,” Brief for Petitioner 31. Instead, it ex­
+pands upon an argument it raised before the Fifth Circuit, 
+see En Banc Brief for Respondent in No. 21–60766, p. 29, 
+and contends that its failure to consider marketing plans was 
+harmless error because, subsequent to denying respondents' 
+applications, it issued denial orders to other manufacturers 
+after reviewing marketing plans that were materially indis­
+tinguishable from respondents'. See Brief for Petitioner 
+34–36. That is proof, the FDA says, that reviewing re­
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+589 
+Opinion of the Court 
+spondents' marketing plans would not have made a 
+difference. 
+The Fifth Circuit rejected the FDA's harmless-error argu­
+ment based on our most recent decision invoking the remand 
+rule, Calcutt v. FDIC, 598 U. S. 623 (2023) (per curiam). 
+See 90 F. 4th, at 389–390. In Calcutt, after reciting the re­
+mand rule in strong terms, we acknowledged that a “remand 
+may be unwarranted . . . [w]here the agency `was required' to 
+take a particular action.” 598 U. S., at 630 (quoting Morgan 
+Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of 
+Snohomish Cty., 554 U. S. 527, 544 (2008)). The Fifth Cir­
+cuit interpreted Calcutt's discussion to mean that there is 
+only one exception to the remand rule. See 90 F. 4th, at 390 
+(“APA errors are only harmless where the agency would be 
+required to take the same action no matter what. In all 
+other cases, an agency cannot avoid remand”). That is cer­
+tainly a plausible interpretation of Calcutt, but it would 
+imply a need to remand for all but the narrowest category of 
+agency errors, minimizing the role of harmless-error review. 
+The FDA disagrees with this broad reading of Calcutt and 
+cites, among other authorities, our decision in Sanders. In 
+that case, we opined that the APA incorporates “the same 
+kind of `harmless-error' rule that courts ordinarily apply in 
+civil cases.” 556 U. S., at 406. That principle, taken to its 
+logical extreme, could permit a reviewing court to sustain a 
+fawed agency decision whenever it fnds that the agency 
+would have reached the same result absent the initial error. 
+Understood in that way, harmless error might swallow the 
+remand rule. 
+There is thus obviously tension between Calcutt and 
+Sanders, and neither decision sought to harmonize the re­
+mand and harmless-error rules. Calcutt made no reference 
+to the APA's prejudicial-error provision, and Sanders did not 
+discuss the remand rule or even cite Chenery. 
+Commentators have long puzzled over this tension and 
+proposed ways to bridge the divide. See H. Friendly, Chen­
+Page Proof Pending Publication
+
+590 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Opinion of the Court 
+ery Revisited: Refections on Reversal and Remand of Ad­
+ministrative Orders, 1969 Duke L. J. 199, 222–225 (Friendly); 
+N. Bagley, Remedial Restraint in Administrative Law, 117 
+Colum. L. Rev. 253, 302–307 (2017) (Bagley); C. Walker, 
+Against Remedial Restraint in Administrative Law, 117 
+Colum. L. Rev. Online 106, 115–120 (2017). And the courts 
+of appeals have apparently developed their own practices to 
+reconcile the remand and harmless-error rules. See Bagley 
+302, n. 328 (citing cases). We will not attempt to provide a 
+complete answer to this vexing problem here. 
+For now, we agree with the FDA that the Fifth Circuit 
+read Calcutt too broadly. It has long been accepted, for ex­
+ample, that a remand may not be necessary when an agency's 
+decision is supported by a plethora of factual fndings, only 
+one of which is unsound. When it is clear that the agency's 
+error “had no bearing on the procedure used or the sub­
+stance of [the] decision reached,” a remand would be point­
+less. Massachusetts Trustees of Eastern Gas & Fuel Asso­
+ciates v. United States, 377 U. S. 235, 248 (1964); see Friendly 
+210–211 (“Massachusetts Trustees v. United States . . . might 
+be regarded as a true indentation of Chenery, [but] it is an 
+altogether sound one”).9 
+We do not suggest that this excep­
+tion and the one recognized in Calcutt exhaust the universe 
+of exceptions to the remand rule. But the existence of this 
+exception is suffcient to show that the Fifth Circuit's read­
+ing of Calcutt went too far. 
+9 Despite its holding that Calcutt is the sole exception to the remand 
+rule, the Court of Appeals appears to have issued a brief alternative hold­
+ing at the very end of its opinion. In that short discussion, the court cited 
+Circuit precedent echoing the rule of Massachusetts Trustees. See 90 
+F. 4th, at 390 (citing United States v. Johnson, 632 F. 3d 912, 930 (CA5 
+2011)). But the Court of Appeals applied Massachusetts Trustees at a 
+high level of generality, and absent any analysis applying Massachusetts 
+Trustees to the FDA's failure to consider respondents' marketing plans 
+specifcally, we are unable to affrm the decision on that alternative basis. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 542 (2025) 
+591 
+Opinion of the Court 
+That said, the FDA's reading of Sanders may also be ex­
+cessive. In an article that the FDA quotes with approval, 
+see Brief for Petitioner 41, Judge Friendly accurately cap­
+tured the core of the remand rule when he wrote, “[w]here 
+the agency has rested decision on an unsustainable reason, 
+the court should generally reverse and remand even though 
+it discerns a possibility, even a strong one, that by another 
+course of reasoning the agency might come to the same 
+result,” Friendly 222 (emphasis added). There is an impor­
+tant distinction, if only a subtle one, between this formula­
+tion and the FDA's argument that a party attacking an 
+agency decision must prove that an error had a “substantial 
+bearing” on the decision. Brief for Petitioner 36–37. And 
+the FDA has not identifed any prior case in which we have 
+held that the application of an erroneous understanding of 
+the governing law was harmless because a subsequent 
+agency decision shows that the agency would have reached 
+the same result if it had applied the correct understanding 
+of the law. 
+The FDA has not asked us to decide the harmless-error 
+question at this juncture. True, in its petition for certiorari, 
+it requested that we “review and reverse the Fifth Circuit's 
+holding that the error was not harmless.” Pet. for Cert. 18 
+(emphasis added). But the FDA unmistakably abandoned 
+that full-throated request after we granted certiorari. In 
+its opening brief, the FDA asked that we “only identify the 
+correct harmless-error rule and remand the case, allowing 
+the Fifth Circuit to determine whether respondents have 
+met their burden of showing prejudice.” Brief for Peti­
+tioner 38. It reiterated that position in its reply. See 
+Reply Brief 18. And at argument, when asked, the FDA 
+was upfront that it seeks vacatur and remand so the Fifth 
+Circuit can decide the question afresh without relying on its 
+overly expansive reading of Calcutt. Tr. of Oral Arg. 55– 
+56. We follow that course. 
+Page Proof Pending Publication
+
+592 
+FDA v. WAGES AND WHITE LION INVESTMENTS, LLC 
+Sotomayor, J., concurring 
+*
+*
+* 
+For these reasons, we vacate the judgment of the United 
+States Court of Appeals for the Fifth Circuit and remand 
+the case for further proceedings consistent with this opinion. 
+It is so ordered. 
+Justice Sotomayor, concurring. 
+I join the Court's opinion, as it rightly rejects the conten­
+tion that the FDA acted arbitrarily and capriciously in deny­
+ing respondents' applications for premarket approval of their 
+tobacco products. I write separately, however, to clarify 
+one point. 
+I do not believe the FDA, in the lead up to denying re­
+spondents' applications, “was feeling its way toward a fnal 
+stance and was unable or unwilling to say in clear and spe­
+cifc terms precisely what applicants would have to provide.” 
+Ante, at 556. Instead, the record shows the agency reason­
+ably gave manufacturers some fexibility as to the forms of 
+evidence that would suffce for premarket approval of their 
+products, while hewing to (and never suggesting it would 
+stray from) its statutory duty to approve only those products 
+that would be “appropriate for the protection of the public 
+health.” 21 U. S. C. § 387j(c)(2)(A). In light of the statu­
+tory text and the well-documented and serious risks favored 
+e-cigarette products pose to youth, it should have come as 
+no surprise that applicants would need to submit rigorous 
+scientifc evidence showing that the benefts of their products 
+would outweigh those risks. See § 387j(c)(4). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 579, line 3 from bottom: “the” is inserted before “favoring” 
+p. 582, line 11: “that” is deleted 
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+_________________ 
+_________________ 
+1 
+Cite as: 606 U. S. ____ (2025) 
+SUPREME COURT OF THE UNITED STATES 
+No. 24A1174 
+DONALD J. TRUMP, PRESIDENT OF THE UNITED 
+STATES, ET AL. v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES, ET AL. 
+ON APPLICATION FOR STAY 
+[July 8, 2025] 
+The application for stay presented to Justice Kagan and 
+by her referred to the Court is granted.  The May 22, 2025
+preliminary injunction entered by the United States Dis­
+trict Court for the Northern District of California, case No. 
+3:25–cv–3698, is stayed pending the disposition of the ap­
+peal in the United States Court of Appeals for the Ninth 
+Circuit and disposition of a petition for a writ of certiorari, 
+if such a writ is timely sought. Should certiorari be denied, 
+this stay shall terminate automatically.  In the event certi­
+orari is granted, the stay shall terminate upon the sending 
+down of the judgment of this Court. 
+The District Court’s injunction was based on its view that
+Executive Order No. 14210, 90 Fed. Reg. 9669 (2025), and 
+a joint memorandum from the Office of Management and
+Budget and Office of Personnel Management implementing 
+that Executive Order are unlawful. Because the Govern­
+ment is likely to succeed on its argument that the Executive
+Order and Memorandum are lawful—and because the other 
+factors bearing on whether to grant a stay are satisfied— 
+we grant the application.  We express no view on the legal­
+ity of any Agency RIF and Reorganization Plan produced or
+approved pursuant to the Executive Order and Memoran­
+dum. The District Court enjoined further implementation 
+or approval of the plans based on its view about the illegal­
+ity of the Executive Order and Memorandum, not on any 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+SOTOMAYOR, J., concurring 
+assessment of the plans themselves.  Those plans are not 
+before this Court.
+ JUSTICE SOTOMAYOR, concurring in the grant of stay. 
+I agree with JUSTICE JACKSON that the President can­
+not restructure federal agencies in a manner inconsistent
+with congressional mandates.  See post, at 13.  Here, how­
+ever, the relevant Executive Order directs agencies to plan 
+reorganizations and reductions in force “consistent with ap­
+plicable law,” App. to Application for Stay 2a, and the re­
+sulting joint memorandum from the Office of Management 
+and Budget and Office of Personnel Management reiterates 
+as much. The plans themselves are not before this Court, 
+at this stage, and we thus have no occasion to consider 
+whether they can and will be carried out consistent with the
+constraints of law. I join the Court’s stay because it leaves
+the District Court free to consider those questions in the 
+first instance. 
+
+ 
+ 
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+ 
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+  
+ 
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+ 
+_________________ 
+_________________ 
+1 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+No. 24A1174 
+DONALD J. TRUMP, PRESIDENT OF THE UNITED 
+STATES, ET AL. v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES, ET AL. 
+ON APPLICATION FOR STAY 
+[July 8, 2025]
+ JUSTICE JACKSON, dissenting from the grant of applica­
+tion for stay. 
+Under our Constitution, Congress has the power to estab­
+lish administrative agencies and detail their functions.
+Thus, over the past century, Presidents who have at­
+tempted to reorganize the Federal Government have first
+obtained authorization from Congress to do so. The Presi­
+dent sharply departed from that settled practice on Febru­
+ary 11, 2025, however, by allegedly arrogating this power 
+to himself.  With no mention of congressional buy-in, the
+President’s Executive Order No. 14210 mandates a “critical 
+transformation” of the Federal Government, to be accom­
+plished by “eliminat[ing] or consolidat[ing]” existing agen­
+cies and ordering agency heads to “promptly undertake 
+preparations to initiate large-scale reductions in force.”  90 
+Fed. Reg. 9669, 9670. 
+This unilateral decision to “transfor[m]” the Federal Gov­
+ernment was quickly challenged in federal court.  As rele­
+vant here, the District Judge thoroughly examined the evi­
+dence, considered applicable law, and made a reasoned 
+determination that Executive Branch officials should be en­
+joined from implementing the mandated restructuring un­
+til this legal challenge to the President’s authority to un­
+dertake such action could be litigated.  But that temporary,
+practical, harm-reducing preservation of the status quo was 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+no match for this Court’s demonstrated enthusiasm for 
+greenlighting this President’s legally dubious actions in an 
+emergency posture.
+The Court has now stayed the District Court’s prelimi­
+nary injunction—authorizing implementation of Executive
+Order No. 14210, and all the harmful upheaval that edict 
+entails, while the lower courts evaluate its lawfulness. In 
+my view, this was the wrong decision at the wrong moment, 
+especially given what little this Court knows about what is 
+actually happening on the ground.
+To be specific: What is at issue here is whether Executive
+Order No. 14210 effects a massive restructuring of the Fed­
+eral Government (the likes of which have historically re­
+quired Congress’s approval), on the one hand, or minor 
+workforce reductions consistent with existing law, on the 
+other. One needs facts to answer that critical question, and 
+the District Court not only issued such preliminary findings 
+based on actual evidence, it is also the tribunal best posi­
+tioned to make that determination, at least initially.  Put 
+differently, from its lofty perch far from the facts or the ev­
+idence, this Court lacks the capacity to fully evaluate, much
+less responsibly override, reasoned lower court factfinding
+about what this challenged executive action actually en­
+tails. I respectfully dissent because, in addition to the Gov­
+ernment’s failure to show the exigency or irreparable harm 
+that is required for emergency relief, this Court could not
+possibly know in this posture whether the Government is 
+likely to succeed on the merits with respect to such a fact-
+dependent dispute. So it should have left well enough
+alone. 
+I 
+This is not the first time that a President has wanted to 
+restructure the Federal Government.  Even the most cur­
+sory examination of history readily reveals that, over the 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+past century, Presidents have worked with Congress—ra­
+ther than around it—when seeking to significantly reorgan­
+ize the agencies that comprise the Executive Branch.
+Aside from prior wartime-specific grants of reorganiza­
+tion authority, Congress first gave general reorganization 
+authority to President Hoover in the 1930s.  S. Rep. No. 
+115–381, p. 4 (2018) (detailing history of interactions be­
+tween Congress and the President concerning reorganiza­
+tions). At that time, Congress delegated specific authority 
+to the President to transfer agencies between departments,
+consolidate agencies, and change the functions of agencies. 
+Ibid., and n. 18 (citing Legislative Appropriations Act for 
+Fiscal Year 1933, §§401, 403, 47 Stat. 413). 
+Since then, Congress has considered similar requests for 
+reorganization authority, and it has granted such authority 
+(for limited time periods) to eight more Presidents, includ­
+ing Presidents Franklin D. Roosevelt, Eisenhower, Ken­
+nedy, Nixon, Carter, and Reagan.  S. Rep. No. 115–381, at 
+4. Far from fully ceding to Presidents unfettered discretion 
+to reorganize the Executive Branch, Congress has, in fact,
+“amended, extended, narrowed, or reactivated [its] govern­
+ment reorganization authority 16 times under both Repub­
+lican and Democratic administrations.” Ibid. 
+The many reorganization acts that Congress has passed 
+since 1932 vary in the degree of discretion conferred.  But 
+all have given Congress a say before the President has im­
+plemented any proposed plans to reorganize agencies’ 
+structures.  Ibid. Pursuant to that process, as of the last
+time Congress expressly granted this reorganization au­
+thority, “presidents [had] submitted 126 reorganization 
+proposals to Congress, of which 93 were implemented and
+33 were affirmatively rejected by Congress.”  Id., at 5. 
+To understand the nature of these reorganization acts, 
+consider the last one Congress enacted.  The Reorganiza­
+tion Act of 1984 allowed President Reagan to make signifi­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
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+ 
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+  
+ 
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+  
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+ 
+ 
+ 
+ 
+4 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+cant changes to the structure of agencies based upon a find­
+ing that such changes were necessary to carry out specified
+policies.  5 U. S. C. §901(a).  Congress defined “reorganiza­
+tion” to include (1) “the transfer of the whole or a part of an 
+agency,” (2) “the abolition of all or a part of the functions of 
+an agency,” (3) “the consolidation or coordination of the 
+whole or a part of an agency, or of the whole or a part of the 
+functions thereof, with the whole or a part of another
+agency or the functions thereof,” (4) “the consolidation or
+coordination of part of an agency or the functions thereof
+with another part of the same agency or the functions 
+thereof,” (5) “the authorization of an officer to delegate any
+of his functions,” and (6) “the abolition of the whole or a part 
+of an agency.” §903(a). Under the 1984 law, President 
+Reagan was required to submit his reorganization plans to 
+Congress, which could request further information about 
+those plans. §903(b).  This latest reorganization act expired 
+in 1984, and Congress has not renewed it since.  §905(b).
+Congress has not only granted presidential requests for 
+reorganization authority; it has also rejected such requests 
+at times. For instance, in 2012, President Obama asked 
+Congress to reauthorize a modified version of the 1984 Re­
+organization Act for two years.  S. Rep. No. 115–381, at 6. 
+President Obama indicated that he planned to consolidate
+several business and trade agencies.  Ibid. But Congress 
+never passed the proposed legislation.  Ibid. President 
+George W. Bush and President Trump (in his first term)
+also unsuccessfully sought reorganization authority from
+Congress.  H. Hogue, Congressional Research Service Re­
+port to Congress, Presidential Reorganization Authority
+32–33 (2012); H. R. 6787, 115th Cong., 2d Sess. (2018); S.
+3137, 115th Cong., 2d Sess. (2018).
+To be sure, historical precedent exists for a President to 
+direct smaller-scale workforce reductions without first ob­
+taining congressional authorization.  In 1993, for example, 
+President Clinton issued an executive order to reduce the 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+  
+ 
+ 
+ 
+ 
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+ 
+ 
+ 
+5 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+size of the federal workforce by requiring agencies to elimi­
+nate four percent of their full-time positions over three 
+years. Exec. Order No. 12839, 58 Fed. Reg. 8515 (1993).
+That order did not mandate reductions in force or reorgan­
+izations, however. Instead, the workforce reduction was to 
+be achieved “through attrition or early out programs estab­
+lished at the discretion of the department and agency
+heads.” Ibid. And President Clinton also later obtained 
+congressional authorization for his plans.  See Federal 
+Workforce Restructuring Act of 1994, 108 Stat. 111. 
+Historical practice thus confirms that, while Presidents
+possess some discretion to reduce federal employment, they
+may not fundamentally restructure the Federal Govern­
+ment all on their own.  Administrative agencies are created
+by statute and funded by Congress; therefore, Presidents 
+have traditionally worked with Congress to effect signifi­
+cant alterations of those statutory structures.  This history
+is crucial to understand, because it establishes the “status 
+quo” when it comes to the relative roles of Congress and the 
+President in reorganizing the Federal Government. 
+II 
+Given this background, one might have expected this 
+President, like his predecessors, to obtain congressional au­
+thorization before launching the dramatic structural over­
+haul that Executive Order No. 14210 directs. That order 
+mandates that nearly all federal agencies “promptly under­
+take preparations to initiate large-scale reductions in force 
+(RIFs)” and agency reorganizations. 90 Fed. Reg. 9670. 
+And, as I previously noted, the order does not mandate pre­
+implementation authorization by Congress.  Instead, it re­
+quires agencies to submit “RIF and Reorganization Plans” 
+to the Office of Management and Budget (OMB). Ibid. 
+The Directors of OMB and the Office of Personnel Man­
+agement (OPM) have issued a Memorandum (Feb. 26, 2025) 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+6 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+pursuant to Executive Order No. 14210 instructing depart­
+ment and agency heads to submit reorganization plans for 
+review by OMB, OPM, and the Department of Government
+Efficiency. As justification for this directive, the Memoran­
+dum points to the President’s promise “to sweepingly re­
+form the federal government.”  App. to Application for Stay
+4a (App.). The Memorandum also directs agency heads to
+prioritize reducing full-time employment positions, so as to 
+achieve “maximum elimination of functions that are not 
+statutorily mandated,” and to cut “components and posi­
+tions that are non-critical.” Id., at 5a.  And while the Mem­
+orandum does require agencies to consider planning for
+some degree of eventual congressional engagement, the ex­
+ecutive action itself does not rest on any grant of reorgani­
+zation authority by Congress.  Nor could it, as Congress has
+not granted such authority to the President.1 
+Unions, nonprofits, and local governments filed this law­
+suit challenging what they allege to be a dramatic plan to
+dismantle the Federal Government without congressional
+authorization. At the preliminary-relief stage, the District
+Court’s task was to focus on how “to preserve the relative 
+positions of the parties until a trial on the merits can be
+held, and to balance the equities as the litigation moves for­
+ward.” Lackey v. Stinnie, 604 U. S. ___, ___ (2025) (slip op., 
+—————— 
+1As I understand the present situation, a specific proposal to extend 
+reorganization authority to this President exists, see Reorganizing Gov­
+ernment Act of 2025, H. R. 1295, 119th Cong., 1st Sess. (2025), but it has 
+yet to be enacted.  Some members of Congress also proposed extending
+reorganization authority to the President through the recently passed 
+domestic policy bill, but the final legislation did not do so.  Compare Sen­
+ate Committee on Homeland Security and Governmental Affairs, Draft 
+Reconciliation Bill Text §90107 (June 12, 2025), https://www.paul. 
+senate.gov/wp-content/uploads/2025/06/MDM25B50.pdf (proposing ex­
+tension of explicit reorganization authority), with H. R. 1, 119th Cong., 
+1st Sess. §90103 (2025) (appropriating funds for “finding budget and ac­
+counting efficiencies in the executive branch” but making no reference to 
+reorganization authority). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+7 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+at 6) (internal quotation marks and citation omitted). 
+Moreover, and notably, the central question the District
+Court faced was primarily one of fact: Was the President
+actually engaging in mere reductions in force consistent 
+with existing law, as the Government asserted?  Or were 
+the plaintiffs right that the President was really attempting
+to fundamentally reorganize the structure of the Govern­
+ment? If the latter, historical precedent confirms that pre­
+serving the status quo would mean temporarily preventing 
+the President from unilaterally doing what his predecessors 
+only did after receiving specific authorization from Con­
+gress.
+The District Court received extensive evidence from the 
+plaintiffs and scant submissions from the Government, and 
+it carefully reviewed everything before it, as I describe in 
+Part III–A, infra. In a detailed 55-page opinion that focuses
+on the standard factors for preliminary injunctive relief, the 
+court then explained its fact-based conclusion: “[T]he role of 
+a district court is to examine the evidence, and at this stage 
+of the case the evidence discredits the executive’s position
+and persuades the Court that plaintiffs are likely to succeed 
+on the merits of their suit.” App. 12a. 
+Notably, based on the evidence presented, the District
+Court specifically found that several federal agencies were
+in the process of rapidly implementing reorganizations and 
+large-scale reductions in force. Ibid. It also found that pro­
+posed changes appeared to “intentionally or negligently
+flout the tasks Congress has assigned” to the agencies at 
+issue. Ibid. And the District Court further determined that 
+if it did not pause this restructuring in the interim (while 
+the litigation is ongoing), then many “agencies will not be
+able to do what Congress has directed them to do.”  Ibid. 
+To forestall this significant harm, the court enjoined the 
+President’s restructuring mandate for the duration of the
+lawsuit “[t]o preserve the status quo and protect the power 
+of the legislative branch.” Id., at 14a.  The Ninth Circuit 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+8 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+then declined to upset that temporary injunction during the 
+appeal. Id., at 69a. 
+III 
+Instead of directing its attention and resources to fully
+litigating the merits of the challenge to its authority in the
+courts below, the Government rushed up the chain of re­
+view, seeking an emergency stay of the District Court’s pre­
+liminary injunction from us.  We thus faced the question
+whether to override the judgments of the two courts below 
+by allowing the President to proceed immediately with im­
+plementing his restructuring plans.  To answer “no” to that 
+question is simply to preserve the status quo while the 
+lower courts expeditiously decide the lawfulness of the
+President’s order. 
+To answer “yes”—as the Court now 
+does—is to allow an apparently unprecedented and con­
+gressionally unsanctioned dismantling of the Federal Gov­
+ernment to continue apace, causing irreparable harm be­
+fore courts can determine whether the President has the 
+authority to engage in the actions he proposes. 
+A 
+As I see the choice before us, the Court’s merits-focused 
+approach to granting this stay is particularly problematic 
+because the District Court’s decision to issue an injunction 
+was based on findings of fact.  It is not this Court’s role to 
+swoop in and second-guess a lower court’s factual findings,
+especially when that court has made well reasoned, prelim­
+inary judgments on a developing record. But that is pre­
+cisely what the majority does in granting this stay.
+As I previewed above, the District Court extensively ex­
+amined the evidence the parties presented, which included
+68 sworn declarations from plaintiffs (totaling more than
+1,400 pages) and a single declaration from the Government. 
+Id., at 13a, 88a.  The court also completed an in camera re­
+view of several proposed agency reorganization plans (plans 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+9 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+that the Government did not submit in its application to 
+this Court). Based on its review of all of this evidence, the 
+District Court found that the plaintiffs were likely to suc­
+ceed in showing that the challenged Executive Order and 
+Memorandum seek to effect a fundamental transformation 
+of the Federal Government, rather than mere reductions in 
+force consistent with existing statutory authority.  Still, de­
+spite this factbound determination and the extensive fact-
+finding that supports it, the Court now cavalierly concludes 
+(in just one line) that “the Government is likely to succeed 
+on its argument that the Executive Order and Memoran­
+dum are lawful.” Ante, at 1. 
+To be clear: Today’s merits dispute is not about the Pres­
+ident’s ability to unilaterally restructure the Federal Gov­
+ernment—no one argues that it is lawful for him to do so. 
+Instead, the President insists that his Administration’s ac­
+tions in carrying out the Executive Order and Memoran­
+dum are an exercise of existing executive-branch authority 
+to make staffing decisions, not a fundamental reorganiza­
+tion of the Federal Government.  Application for Stay 5–6. 
+So, the merits question for purposes of interim relief is 
+whether that is likely true. 
+The District Court considered that issue and found the 
+consistent-with-law language in the Executive Order and 
+Memorandum to be inconsistent with the factual record. 
+App. 49a–51a; see also supra, at 7–8, and n. 2, infra. For 
+instance, the court highlighted plans to terminate more
+than half of many agencies’ staff and to “practically wipe
+out” entire agencies. App. 50a. And those plans were not 
+outliers; rather, according to the District Court, they ap­
+pear to reflect the whole point of this executive action.2  The 
+—————— 
+2Due to the Government’s refusal to disclose nearly all agency reor­
+ganization plans (except for four that the District Court reviewed in cam­
+era), App. 20a, 46a, the details remain murky in this preliminary pos­
+ture.  But the Government concedes that—as of May 16—about 40 
+reductions in force were already in progress across 17 agencies. Id., at 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+10 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+District Court’s preliminary factfinding was vital to its con­
+clusion that plaintiffs are likely to succeed in showing that 
+the challenged executive action amounts to a wholesale gov­
+ernment reorganization. Thus, the majority’s rejection of 
+that determination—i.e., its passing reference to the law­
+fulness of the Executive Order and Memorandum—must 
+rest on a conclusion that the District Court was wrong
+about the facts of what is really happening to agencies and 
+their employees pursuant to this executive action. 
+That approach is plainly inconsistent with this Court’s
+traditional role. District courts are far better suited than 
+appellate courts (this one especially) to evaluate facts on 
+the ground. See Anderson v. Bessemer City, 470 U. S. 564, 
+574–575 (1985) (explaining that trial judges’ expertise in
+making factual determinations warrants deference on ap­
+peal). Accordingly, Federal Rule of Civil Procedure 52(a)(6) 
+establishes that a trial court’s factual findings “must not be
+set aside unless clearly erroneous.” And this Court has, his­
+torically, acknowledged its own limitations, citing the “well-
+settled rule” that “factual findings are reviewable only for 
+clear error,” “with a serious thumb on the scale” supporting
+the district court’s evaluation of evidence.  U. S. Bank N. A. 
+v. Village at Lakeridge, LLC, 583 U. S. 387, 394 (2018).
+What is more, deference toward lower court factfinding
+should be at its peak at this extremely early stage of the 
+—————— 
+18a. Moreover, the extensive (and unrebutted) record demonstrates that
+those planned personnel changes are massive.  The District Court cited 
+multiple examples to illustrate this point, including proposed reductions 
+in force of approximately 93 percent of employees at the National Insti­
+tute for Occupational Safety and Health, nearly half the workforce at the 
+Department of Energy, and more than half the workforce of the National
+Oceanic and Atmospheric Association.  Id., at 18a, 50a.  Also in evidence 
+were proposed cuts of 70 percent of the staff at the Department of Labor’s 
+headquarters and 83,000 workers at the Department of Veterans Affairs, 
+just to name a few.  Id., at 18a; see also id., at 82a (Ninth Circuit recita­
+tion of agencies proposing to eliminate more than 85 percent of their 
+workforces). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+   
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+11 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+litigation process—when what we are considering is an ap­
+plication for an emergency stay of a preliminary injunction.
+Even when deciding the actual appeal of a preliminary in­
+junction (still down the road), “this Court may only consider 
+whether issuance of the injunction constituted an abuse of
+discretion.” Brown v. Chote, 411 U. S. 452, 457 (1973). 
+The clear-error review that governs factual findings, (see 
+Fed. Rules Civ. Proc. 52(a)(2), (6)), and the deference owed 
+to a district court’s issuance of preliminary relief weigh 
+heavily against intervening to override the reasoned, fact-
+based judgments of the lower courts. Add to that the re­
+quirement that an applicant for emergency relief make not 
+just a showing, but a “‘strong’” one, “‘that he is likely to 
+succeed on the merits,’”  Nken v. Holder, 556 U. S. 418, 434 
+(2009) (emphasis added), and it is no wonder that this Court 
+has long considered stays to be “extraordinary” relief.  Cf. 
+Graves v. Barnes, 405 U. S. 1201, 1203 (1972) (Powell, J., in 
+chambers) (explaining that this Court grants stays pending 
+appeal “only in extraordinary circumstances” because a 
+“lower court judgment, entered by a tribunal that was 
+closer to the facts . . . is entitled to a presumption of valid­
+ity”). Together, these deferential standards should make it
+the truly rare occasion that this Court uses its emergency
+docket to overrule district courts’ fact-based, preliminary 
+determinations on the merits.  That also makes perfect 
+sense in light of quickly developing records and lower courts
+that are far better acquainted with those facts. 
+But, today, this Court once again ignores all of this while 
+casually discarding 55 pages of evidence-based lower court 
+reasoning. On what grounds does the majority deviate from 
+the District Court’s fact-based findings here?  Has it found 
+that the court below clearly erred with respect to its assess­
+ment of the evidence? Has it opted to simply ignore the
+well-settled deferential standards of review?  Has it made 
+its own factual findings about the nature, scope, and extent 
+of the Government’s reorganization activities?  All of these 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+12 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+possibilities are problematic. And because the Court pro­
+vides no explanation for its likelihood-of-success conclusion, 
+the answers to these crucial questions are also anyone’s 
+guess.3 
+B 
+The Court’s disregard for the District Court’s factfinding
+(and also, apparently, for the applicable standards of re­
+view) would be troubling enough when viewed through a
+mere procedural lens.  But it is all the more puzzling, and 
+ultimately disheartening, given the extraordinary risk of 
+harm that today’s ruling immediately unleashes.
+No one seriously disputes that, if implemented, Executive
+Order No. 14210 will lead to enormous real-world conse­
+quences.  This executive action promises mass employee
+terminations, widespread cancellation of federal programs
+and services, and the dismantling of much of the Federal 
+Government as Congress has created it.  As the Ninth Cir­
+cuit concluded, the statutory shortfalls likely to result from 
+implementation of this Executive Order will be immensely 
+painful to the general public, and the plaintiffs, in the in­
+terim, causing harm that includes “proliferat[ing] food-
+borne disease,” perpetuating “hazardous environmental 
+conditions,” “eviscerat[ing] disaster loan services for local 
+businesses,” and “drastically reduc[ing] the provision of 
+—————— 
+3The Court does observe that the specific reorganization plans are not 
+yet before it. Ante, at 1–2. But that suggests that the Court is in a posi­
+tion to assess the lawfulness of this executive action (for now) by ignoring 
+what the Government is actually doing.  The District Court’s careful, 
+sensible, and detailed consideration of what is happening in the real 
+world belies that assumption; indeed, it ably demonstrates that the like­
+lihood of success on the merits of the legal claims at issue here can only 
+be determined relative to facts, no matter how much the majority ma­
+neuvers to get around them.  If every (or nearly every) reorganization
+plan seeks to gut federal agencies—as the evidence indicates so far—
+then the whole executive action is unlawful, not just each individual 
+plan. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+13 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+healthcare and other services to our nation’s veterans.” 
+App. 94a. Preventing those kinds of calamities is just a
+small slice of the work that federal employees do to carry 
+out Congress’s statutory mandates—work that the Execu­
+tive Order immediately imperils if implemented. 
+Consider the harms to democracy, too, if it turns out that 
+the plaintiffs and the lower courts are right that the Presi­
+dent is unilaterally changing the structure of the Federal
+Government. What one person (or President) might call bu­
+reaucratic bloat is a farmer’s prospect for a healthy crop, a
+coal miner’s chance to breathe free from black lung, or a
+preschooler’s opportunity to learn in a safe environment. 
+The details of the programs that this executive action tar­
+gets are the product of policy choices that Congress has
+made—a representative democracy at work. While the 
+President no doubt has the authority to manage the Execu­
+tive Branch, our system does not allow the President to re­
+write laws on his own under the guise of that authority.
+“The President’s power, if any, to issue [an executive] or­
+der must stem either from an act of Congress or from the
+Constitution itself.” Youngstown Sheet & Tube Co. v. Saw­
+yer, 343 U. S. 579, 585 (1952).  This constraint on the Pres­
+ident is protective of democracy, not an impediment to it.
+That is, although the President is an elected representative
+with a claim on the popular will, so too are the People’s rep­
+resentatives in Congress—and our Constitution gives them 
+the power to make laws. If a President runs roughshod over
+the carefully crafted statutes that authorize and animate 
+the Federal Government (as the District Court’s prelimi­
+nary findings show to be likely happening here), he discards 
+and disables the democratic system that created those laws. 
+It is the duty of judges to safeguard that system.  Partic­
+ularly when a President “takes measures incompatible with
+the expressed or implied will of Congress,” his claim to 
+power “must be scrutinized with caution, for what is at 
+stake is the equilibrium established by our constitutional 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+14 
+TRUMP v. AMERICAN FEDERATION 
+OF GOVERNMENT EMPLOYEES 
+JACKSON, J., dissenting 
+system.” Id., at 637–638 (R. Jackson, J., concurring).  But, 
+today, the Court exercises neither caution nor scrutiny, es­
+pecially compared to the reasoned decisions issued by the 
+courts below. With scant justification, the majority permits 
+the immediate and potentially devastating aggrandizement 
+of one branch (the Executive) at the expense of another
+(Congress), and once again leaves the People paying the
+price for its reckless emergency-docket determinations. 
+* 
+* 
+* 
+Given the fact-based nature of the issue in this case and 
+the many serious harms that result from allowing the Pres­
+ident to dramatically reconfigure the Federal Government,
+it was eminently reasonable for the District Court to main­
+tain the status quo while the courts evaluate the lawfulness
+of the President’s executive action.  At bottom, this case is 
+about whether that action amounts to a structural overhaul 
+that usurps Congress’s policymaking prerogatives—and it 
+is hard to imagine deciding that question in any meaningful 
+way after those changes have happened.  Yet, for some rea­
+son, this Court sees fit to step in now and release the Pres­
+ident’s wrecking ball at the outset of this litigation.
+In my view, this decision is not only truly unfortunate but 
+also hubristic and senseless. Lower court judges have their
+fingers on the pulse of what is happening on the ground and 
+are indisputably best positioned to determine the relevant
+facts—including those that underlie fair assessments of the
+merits, harms, and equities.  I see no basis to conclude that 
+the District Court erred—let alone clearly so—in finding 
+that the President is attempting to fundamentally restruc­
+ture the Federal Government. Therefore, I would not dis­
+rupt the lower courts’ preservation of the status quo.  In­
+stead, I would leave intact their protection of the historical 
+relationship between Congress and the President, prevent­
+ing irreparable harm to the plaintiffs and the public while 
+
+ 
+ 
+ 
+ 
+ 
+ 
+15 
+Cite as: 606 U. S. ____ (2025) 
+JACKSON, J., dissenting 
+the Judiciary does the critical work of evaluating this exer­
+cise of power. 
diff --git a/corpus/law/text/bb447a8719f63fab.txt b/corpus/law/text/bb447a8719f63fab.txt
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@@ -0,0 +1,60 @@
+Retraction: The impact of China’s new environmental protection law on corporate environmental investments
+
+ 
+TYPE Retraction
+PUBLISHED 19 December 2025
+DOI 10.3389/fenrg.2025.1764785
+OPEN ACCESS
+APPROVED BY
+Frontiers Editorial Office,
+Frontiers Media SA, Switzerland
+*CORRESPONDENCE
+Frontiers Editorial Office,
+research.integrity@frontiersin.org
+RECEIVED 10 December 2025
+ACCEPTED 10 December 2025
+PUBLISHED 19 December 2025
+CITATION
+Frontiers Editorial Office (2025) Retraction: 
+The impact of China’s new environmental 
+protection law on corporate environmental 
+investments.
+Front. Energy Res. 13:1764785.
+doi: 10.3389/fenrg.2025.1764785
+COPYRIGHT
+© 2025 Frontiers Editorial Office. This is an 
+open-access article distributed under the 
+terms of the Creative Commons Attribution 
+License (CC BY). The use, distribution or 
+reproduction in other forums is permitted, 
+provided the original author(s) and the 
+copyright owner(s) are credited and that the 
+original publication in this journal is cited, in 
+accordance with accepted academic practice. 
+No use, distribution or reproduction is 
+permitted which does not comply with 
+these terms.
+Retraction: The impact of China’s 
+new environmental protection 
+law on corporate environmental 
+investments
+Frontiers Editorial Office*
+A Retraction of the Original Research Article
+The impact of China’s new environmental protection law on corporate 
+environmental investments
+sby Liu W, Qiu Y, Jia L, Wu Y and Zhou Q (2023). Front. Energy Res. 11:1323244. doi: 
+10.3389/fenrg.2023.1323244
+The journal retracts the 29th December 2023 article cited above.
+Following publication, concerns were identified regarding the peer review process and 
+content of this article. Following an investigation conducted in accordance with Frontiers' 
+policies, the publisher no longer has confidence in the findings. The investigation was not 
+able to determine whether all or any authors, editors, or reviewers were aware of or involved 
+in any form of misconduct or manipulation of the publication process.
+In adherence to the recommendations of the Committee on Publication Ethics (COPE), 
+the article is retracted. The retraction was approved by the Chief Executive Editor at 
+Frontiers and the Field Chief Editor of Frontiers in Energy Research. The authors received a 
+communication regarding the retraction and had a chance to respond. This communication 
+has been recorded by the publisher.
+Frontiers in Energy Research
+01
+frontiersin.org
diff --git a/corpus/law/text/c1260c22f813d572.txt b/corpus/law/text/c1260c22f813d572.txt
new file mode 100644
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--- /dev/null
+++ b/corpus/law/text/c1260c22f813d572.txt
@@ -0,0 +1,118 @@
+Correction to: South Africa’s new standard material transfer agreement: proposals for improvement and pointers for implementation
+
+An amendment to this paper has been published and can be accessed via the original article.
+
+Thaldar et al. BMC Med Ethics          (2020) 21:120  
+https://doi.org/10.1186/s12910-020-00547-6
+CORRECTION
+Correction to: South Africa’s new 
+standard material transfer agreement: 
+proposals for improvement and pointers 
+for implementation
+Donrich W. Thaldar1,2*, Marietjie Botes1,2 and Annelize Nienaber3,4,5
+© The Author(s) 2020. This article is licensed under a Creative Commons Attribution 4.0 International License, which permits use, sharing, 
+adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and 
+the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or other third party material 
+in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material 
+is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds 
+the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this licence, visit http://crea-
+tivecommons.org/licenses/by/4.0/. The Creative Commons Public Domain Dedication waiver (http://creativecommons.org/publicdo-
+main/zero/1.0/) applies to the data made available in this article, unless otherwise stated in a credit line to the data.
+Correction to: BMC Medical Ethics (2020) 21:85  
+https​://doi.org/10.1186/s1291​0-020-00526​-x
+It was highlighted that the original article contained an 
+alignment typesetting error in Table  1. This Correction 
+article shows the correct Table 1. The original article has 
+been updated.
+Open Access
+The original article can be found online at https​://doi.org/10.1186/s1291​
+0-020-00526​-x.
+*Correspondence:  ThaldarD@ukzn.ac.za
+1 School of Law, University of KwaZulu-Natal, Durban, South Africa
+Full list of author information is available at the end of the article
+
+Page 2 of 2
+Thaldar et al. BMC Med Ethics          (2020) 21:120 
+Author details
+1 School of Law, University of KwaZulu-Natal, Durban, South Africa. 2 African 
+Health Research Flagship, University of KwaZulu-Natal, Durban, South Africa. 
+3 Faculty of Law, University of Pretoria, Pretoria, South Africa. 4 Centre for Ethics 
+and Philosophy of Health Sciences, Faculty of Health Sciences, University 
+of Pretoria, Pretoria, South Africa. 5 Division of Law, Abertay University, Dundee, 
+Scotland, UK. 
+Reference
+	1.	
+Thaldar, et al. BMC Medical Ethics. 2020;21:85. https​://doi.org/10.1186/
+s1291​0-020-00526​-x. 
+Publisher’s Note
+Springer Nature remains neutral with regard to jurisdictional claims in pub-
+lished maps and institutional affiliations.
+Table 1  Summary of proposed amendments to improve the SA MTA
+Provision
+Proposed amendment
+1
+Application
+Notice by the Minister
+Replace the words ‘biological material’ with ‘human biological material and associated data’.
+2
+Health Research Ethics Committees
+Recital of parties, paragraph 2.14 and throughout 
+the SA MTA
+Remove HRECs as parties.
+3
+Consent
+Paragraph 2.15 and throughout the SA MTA
+Differentiate between a research programme and research projects in a programme.
+Paragraph 2.12
+Replace the phrase ‘(with legal capacity to do so)’ with ‘and/or the research participant’s parents or guardians in 
+terms of the National Health Act’.
+4
+Ownership in Material
+Paragraph 3.3
+Strike out the phrase: ‘and the donor remains the owner of the material until such materials are destroyed.’
+5
+Transfer of Material
+Paragraph 6.2
+Replace the current paragraph with the following: ‘The Provider will deliver the Materials to the Recipient accord-
+ing to the following schedule, and in the following media or formats:…’
+6
+Benefit sharing
+Paragraph 7.1
+The words ‘discussed and negotiated’ must be replaced with ‘agreed’.
+(In the longer term) Best practice guidelines to be developed in consultation with stakeholders.
+7
+Dispute resolution
+Paragraph 11.3
+Insert a new paragraph 11.2A that reads: ‘In the event that the Provider is located in South Africa, this agreement 
+will be interpreted according to the law of South Africa.’
+Insert a new paragraph 11.2B that reads: ‘In the event that the Provider is located in South Africa the division of 
+the high court of South Africa where the Provider is located will have jurisdiction over any dispute related to 
+this agreement except if the parties agree to arbitration, in which case the arbitration hearing must take place 
+within the jurisdiction of the division of the high court of South Africa mentioned above.’
+Insert a new paragraph 11.2C that reads: ‘The Parties may only depart from the provisions of paragraph 11.2A 
+and 11.2B above if written permission by the Minister is obtained, in which event the letter of permission must 
+be attached hereto.’
+Insert a new paragraph 11.2D that reads:
+‘Cognisant of the principles contained in paragraphs 11.2A to 11.2C above, the Parties record their agreement 
+that this Agreement will be interpreted according to the law of … [insert name of jurisdiction], and that any 
+dispute related to this agreement will be adjudicated in … [insert name of level of court and jurisdiction].’
+Replace the phrase in paragraph 11.3 ‘either Party may institute action in accordance with South African laws, 
+in a South African court, unless the Parties agree to resolve such dispute by arbitration in terms of a separate 
+arbitration agreement’ with ‘either Party may institute legal proceedings in a court that has jurisdiction, unless 
+the Parties agree to resolve such dispute by arbitration in terms of a separate arbitration agreement, subject to 
+the provisions of paragraphs 11.2A to 11.2D above.’
+8
+Intellectual property
+Paragraph 12
+Insert a new paragraph 12A that all relevant third-party agreements must be listed in the MTA, attached to the 
+MTA, and that their content is deemed to be incorporated into the MTA.
+(In the longer term) Best practice guidelines to be developed in consultation with stakeholders.
+9
+Data Privacy
+Paragraph 13.3
+Replace the current paragraph with the following: ‘The Provider and the Recipient shall treat all information 
+relating to the nature and processes of the research in whatever form as confidential, subject to necessary dis-
+closure of any information in the ordinary course of business, including for purposes of funding applications, 
+complying with funding requirements, and as specified in the Recipient’s research protocol.’
+(In the longer term) The relevant POPIA provisions should be condensed to contractual terms by privacy law 
+experts, officially approved by the Information Regulator and included as standard terms in a revised SA MTA.
diff --git a/corpus/law/text/c263751e7c9deecd.txt b/corpus/law/text/c263751e7c9deecd.txt
new file mode 100644
index 0000000000000000000000000000000000000000..05071884b0c25f0aa52b2256a90a1635763feef7
--- /dev/null
+++ b/corpus/law/text/c263751e7c9deecd.txt
@@ -0,0 +1,121 @@
+ERRATUM - Veritas v.68 n.1-2023-artigo-ID44913
+
+---
+
+ERRATA
+REVISTA VERITAS v. 68 n.1 (2023)
+A Equipe Editorial da Revista Veritas (Porto Alegre) torna publica as seguintes alteração e substitui-
+ção, na edição 68, n. 1 (2023), DOI:, https://doi.org/10.15448/1984-6746.2023.1.44913, artigo Between 
+Bets and Rational Choices: Conjectures on the fraying of Time under intense action of Chance. 
+Justificativa: As correções se referem principalmente ao modo de citação e referenciamento da 
+obra do autor foco do artigo, Charles S. Peirce, que deve seguir internacionalmente a forma canônica 
+consagrada entre os especialistas em sua obra, prevalecendo, portanto, em face das regras da ABNT. 
+As duas correções de tradução de uma palavra do título em inglês para o português e espanhol jus-
+tifica-se para manter o sentido que o termo original “fraying” assume no contexto do artigo. 
+WHERE
+WHERE IT IS READ
+SHALL BE READ AS
+p. 1, título em português.
+desgaste 
+esgarçamento
+p. 1, título em espanhol
+desgaste
+deshilachamiento
+p. 2, nota de rodapé 2, linha 1
+ Pierce (1931, paragraph 173)
+CP 1.173
+p. 2, nota de rodapé 3, linha 2-3
+Ibri (2022)
+Ibri (2022, chapters 14 e 17)
+p. 3, coluna esquerda, linha 28
+Ibri (2022)
+Ibri (2022, chapter 14)
+P. 3, nota de rodapé 7, linha 5
+Tienne (2015)
+De Tienne (2015)
+p. 3, coluna direita, linha 13. 
+(PEIRCE, 1933, paragraph 172)
+(CP 4.172)
+p. 3, nora de rodapé 8, linha 1 
+See Sfendoni-Mentzou (2008) for an 
+analysis of Peirce’s argument for time 
+as a real continuum of dynamic nature, 
+characterized by its potentiality.
+CP 4.172. See Sfendoni-Mentzou (2008) 
+for an analysis of Peirce’s argument for 
+time as a real continuum of dynamic 
+nature, characterized by its potentiality.
+p. 3, nora de rodapé 9, linha 3
+Pierce (1935, paragraph 86)
+CP 6.86
+p. 4, coluna direita, linha 23
+(IBRI, 2017)
+(IBRI, 2017, chapter 5)
+p. 6, coluna esquerda, linha 18
+(IBRI, 2017)
+(IBRI, 2017, chapter 2)
+p. 6, nota de rodapé 15, linha 2
+Pierce (1935, paragraph 534) and Pierce 
+(1958, paragraph 124 and 207)
+CP 5.534; 7.124; 7.207
+p. 7, coluna esquerda, linhas 16 e 17
+(PIERCE, 1934, paragraphs 264-317; 
+PIERCE, 1992, paragraphs 28-55)
+[insere-se nota de rodapé 16]
+p. 10, nota de rodapé 16, linha 1
+CP 5.264-317; EP 1.28-55
+p. 8, coluna direita, linha 33
+(IBRI, 2017)
+(IBRI, 2017, chapter 4)
+p. 9, coluna esquerda, linha 8
+(IBRI, 2022)
+(IBRI, 2022, chapter 16)
+ OPEN ACCESS
+ http://dx.doi.org/10.15448/1984-6746.2023.1.45555
+VERITAS (PORTO ALEGRE)
+Revista de Filosofia da PUCRS
+Veritas, Porto Alegre, v. 68, n. 1, p. 1-2, jan.-dez. 2023
+e-ISSN: 1984-6746 | ISSN-L: 0042-3955
+
+WHERE
+WHERE IT IS READ
+SHALL BE READ AS
+p. 12 e 13, references
+PEIRCE, Charles Sanders. The collected 
+papers of Charles Sanders Peirce. Edited 
+by Charles Hartshorne and Paul Weiss. 
+Massachucetts: Harvard University 
+Press, 1931. V. 1.
+PEIRCE, Charles Sanders. The collected 
+papers of Charles Sanders Peirce. Edited 
+by Charles Hartshorne and Paul Weiss. 
+Massachucetts: Harvard University 
+Press, 1933. v. 4.
+PEIRCE, Charles Sanders. The collected 
+papers of Charles Sanders Peirce. Edited 
+by Charles Hartshorne and Paul Weiss. 
+Massachucetts: Harvard University 
+Press, 1934. v. 5.
+PEIRCE, Charles Sanders. The collected 
+papers of Charles Sanders Peirce. Edited 
+by Charles Hartshorne and Paul Weiss. 
+Massachucetts: Harvard University 
+Press, 1935. v. 6.
+PEIRCE, Charles Sanders. The collected 
+papers of Charles Sanders Peirce. Edited 
+by Charles Hartshorne and Paul Weiss. 
+Massachucetts: Harvard University 
+Press, 1958. v. 7.
+PEIRCE, Charles S. The collected papers 
+of Charles Sanders Peirce. Vols. 1-8. 
+HARTSHORNE, C., WEISS, P.; BURKS, 
+A. W (eds.). Cambridge, MA: Harvard 
+University Press 1931-1958. [Quoted CP, 
+followed by volume number and paragra-
+ph number].
+ OPEN ACCESS
+ http://dx.doi.org/10.15448/1984-6746.2023.1.44913
+VERITAS (PORTO ALEGRE)
+Revista de Filosofia da PUCRS
+Veritas, Porto Alegre, v. 68, n. 1, p. 1-2, jan.-dez. 2023
+e-ISSN: 1984-6746 | ISSN-L: 0042-3955
diff --git a/corpus/law/text/c55a463ce761b160.txt b/corpus/law/text/c55a463ce761b160.txt
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+++ b/corpus/law/text/c55a463ce761b160.txt
@@ -0,0 +1,67 @@
+Retraction: The perceived service quality in higher education: an empirical study using the SERVPERF dimensions
+
+Please find the retraction statement below:Fuchs K, Fangpong K and Southam A (2022) The perceived service quality in higher education: An empirical study using the SERVPERF dimensions. Front. Educ. 7:954797. doi: 10.3389/feduc.2022.954797The journal and Chief Editors retract the 20 September 2022 article cited above.This article is retracted by Frontiers. The publisher has discovered that the authors provided unverifiable information for the peer-review process. As the scientific integrity of the article cannot be guaranteed, and adhering to the recommendations of the Committee on Publication Ethics (COPE), the publisher therefore retracts the article.The authors agree to this retraction. This retraction was approved by the Chief Editors of Frontiers in Education and the Chief Executive Editor of Frontiers.
+
+TYPE Retraction
+PUBLISHED 18 August 2023
+DOI 10.3389/feduc.2023.1275670
+OPEN ACCESS
+APPROVED BY
+Margaret Grogan,
+Chapman University, United States
+*CORRESPONDENCE
+Frontiers Editorial Office
+editorial.office@frontiersin.org
+RECEIVED 10 August 2023
+ACCEPTED 10 August 2023
+PUBLISHED 18 August 2023
+CITATION
+Frontiers Editorial Office (2023) Retraction: The
+perceived service quality in higher education:
+an empirical study using the SERVPERF
+dimensions. Front. Educ. 8:1275670.
+doi: 10.3389/feduc.2023.1275670
+COPYRIGHT
+© 2023 Frontiers Editorial Office. This is an
+open-access article distributed under the terms
+of the Creative Commons Attribution License
+(CC BY). The use, distribution or reproduction
+in other forums is permitted, provided the
+original author(s) and the copyright owner(s)
+are credited and that the original publication in
+this journal is cited, in accordance with
+accepted academic practice. No use,
+distribution or reproduction is permitted which
+does not comply with these terms.
+Retraction: The perceived service
+quality in higher education: an
+empirical study using the
+SERVPERF dimensions
+Frontiers Editorial Office*
+A Retraction of the Original Research Article
+The perceived service quality in higher education: an empirical study
+using the SERVPERF dimensions
+by
+Fuchs,
+K.,
+Fangpong,
+K.,
+and
+Southam,
+A.
+(2022).
+Front.
+Educ.
+7:954797.
+doi: 10.3389/feduc.2022.954797
+The journal and Chief Editors retract the 20 September 2022 article cited above.
+This article is retracted by Frontiers. The publisher has discovered that the authors
+provided unverifiable information for the peer-review process. As the scientific integrity of
+the article cannot be guaranteed, and adhering to the recommendations of the Committee
+on Publication Ethics (COPE), the publisher therefore retracts the article.
+The authors agree to this retraction.
+This retraction was approved by the Chief Editors of Frontiers in Education and the
+Chief Executive Editor of Frontiers.
+Frontiers in Education
+01
+frontiersin.org
diff --git a/corpus/law/text/cb7590a4277ee20f.txt b/corpus/law/text/cb7590a4277ee20f.txt
new file mode 100644
index 0000000000000000000000000000000000000000..da962ac34ae14984731759caeb9e95e321a9da4b
--- /dev/null
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@@ -0,0 +1,987 @@
+The Relevance between the Determination of Prison Penalties in Formulated Policies and the High Overcapacity in Correctional Institutions
+
+Kebijakan penetapan pidana penjara yang terdapat pada undang-undang hukum pidana menjadi salah satu faktor terjadinya kelebihan kapasitas di Lembaga pemasyarakatan di Indonesia. Penelitian ini bertujuan untuk menganalisis konsep kebijakan pemidanaan yaitu penerapan pidana penjara dalam perundang-undangan pidana. Sebagai penelitian hukum normatif, penelitian ini menggunakan pendekatan konseptual dan perundangan-undangan. Hasil penelitian ini menyimpulkan bahwa adanya relevansi antara terjadinya kelebihan kapasitas di Lembaga pemasyarakatan dengan formulasi kebijakan yang ada dalam undang-undang hukum pidana. Terjadinya kelebihan kapasitas di lapas tidaklah terlepas dari kebijakan hukum pidana yang banyak menggunakan pidana penjara sebagai ancaman terhadap kejahatan. Perundang-undangan pidana yang menjadikan pidana sebagai primadona dan sifatnya komulatif dapat dilihat pada UU Narkotika dan UU perdagangan orang (human trafficking).
+
+Al-Mizan  
+ISSN 1907-0985, E-ISSN 2442-8256 
+Vol. 18, No. 2, 2022, h. 289-310 
+DOI: https://doi.org/10.30603/am.v18i2.2903 
+ 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+289 
+ 
+(e-Journal) 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan 
+Formulasi dengan Tingginya Kelebihan Kapasitas 
+di Lembaga Pemasyarakatan 
+Khairil Ikhsan 
+Universitas Islam Indonesia (UII) Yogyakarta 
+Email: 21912022@students.uii.ac.id 
+Author Correspondence: 21912022@students.uii.ac.id 
+ 
+ 
+ Abstract: The policy of determining prison sentences contained in criminal law is 
+one factor in the occurrence of excess capacity in the penitentiary in Indonesia. This 
+research aims to analyze the concept of criminal policy, namely the application of 
+imprisonment in criminal legislation. As normative legal research, this research uses 
+a conceptual approach and legislation. The results of this study conclude that there 
+is a relevance between the occurrence of excess capacity in the penitentiary and the 
+formulation of existing policies in criminal law. The occurrence of overcapacity in 
+prisons is inseparable from criminal law policies that use imprisonment as a threat 
+to crime. The policy formulation for imposing prison sanctions contained in the 
+majority law still adheres to cumulative sanctions, thereby limiting the choices of 
+judges in imposing sentences. When the type of punishment chosen to be threatened 
+with violating the norms of criminal law is imprisonment, it will have implications 
+for increasing acts that are punishable by imprisonment which increases overcapacity 
+in the penitentiary. 
+ 
+Keywords: Imprisonment; Formulation Policy; Overcapacity; The Penitentiary 
+ 
+ 
+The Relevance between Imprisonment Sentences in Formulation 
+Policies with High Overcapacity in the Penitentiary 
+ 
+Abstrak: Kebijakan penetapan pidana penjara yang terdapat pada undang-undang 
+hukum pidana menjadi salah satu faktor terjadinya kelebihan kapasitas di Lembaga 
+Pemasyarakatan di Indonesia. Penelitian ini bertujuan untuk menganalisis konsep 
+kebijakan pemidanaan yaitu penerapan pidana penjara dalam perundang-undangan 
+pidana. Sebagai penelitian hukum normatif, penelitian ini menggunakan pendekatan 
+konseptual dan perundangan-undangan. Hasil penelitian ini menyimpulkan bahwa 
+adanya relevansi antara terjadinya kelebihan kapasitas di Lembaga Pemasyarakatan 
+dengan formulasi kebijakan yang ada dalam undang-undang hukum pidana. 
+Terjadinya kelebihan kapasitas di Lembaga Pemasyarakatan tidaklah terlepas dari 
+kebijakan hukum pidana yang banyak menggunakan pidana penjara sebagai ancaman 
+terhadap kejahatan. Formulasi kebijakan pemberian sanksi penjara yang terkandung 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+290 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+dalam undang-undang mayoritas masih menganut pemberian sanksi secara 
+kumulatif, sehingga membatasi pilihan hakim dalam menjatuhkan hukuman. Ketika 
+jenis pidana yang dipilih untuk diancamkan terhadap pelanggaran norma hukum 
+pidana tersebut adalah pidana penjara, maka akan berimplikasi pada meningkatnya 
+perbuatan yang diancam dengan pidana penjara yang berakibat pada meningkatnya 
+kelebihan kapasitas di Lembaga Pemasyarakatan. 
+Kata Kunci:  Pidana Penjara; Kebijakan Formulasi; Kelebihan Kapasitas; Lembaga 
+Pemasyarakatan. 
+ 
+A. Pendahuluan 
+Penegakan hukum dalam masyarakat adalah sesuatu yang penting 
+dilaksanakan dan ini menjadi tugas dan tanggungjawab dari segala pihak, baik dari 
+unsur negara maupun masyarakat. Salah satunya adalah institusi Pengadilan yang 
+memberikan putusan apakah pidana ganti rugi, pembebasan, atau penjara. Putusan 
+ini kemudian ditindaklanjuti oleh Kementerian Hukum dan Hak Asasi Manusia, 
+dalam hal ini Lembaga Pemasyarakatan dalam hal pidana penjara.  
+Undang-Undang Nomor 12 Tahun 1995 
+tentang Pemasyarakatan 
+menyebutkan ‘Lembaga Pemasyarakatan (Lapas) adalah tempat untuk melaksanakan 
+pembinaan Narapidana dan Anak Didik Pemasyarakatan.’1 Lapas atau pejara dalam 
+menjalankan fungsinya sebagai lembaga yang bertugas untuk melaksanakan 
+pembinaan bagi narapidana dan anak mengalami banyak problematika salah satunya, 
+yaitu meningkatnya kelebihan kapasitas. Gagasan negara untuk mengurung 
+seseorang di penjara tidak juga menerapkan konsep pengayoman yang baik, Lapas 
+justru seakan beralih fungsi dari lokasi pembinaan menjadi lokasi “penampungan” 
+untuk pelaku tindak pidana. Sudah bukan rahasia lagi bahwa pada saat ini sebagian 
+besar Lapas serta rumah tahanan (Rutan) di Indonesia mengalami kelebihan 
+kapasitas yang sangat memprihatinkan.2  
+ 
+1Republik Indonesia, Undang-Undang Nomor 12 Tahun 1995 tentang Pemasyarakatan, Pasal 
+1 angka 3. 
+2Ilham Panunggal Jati Darwin, “Implikasi Overcapacity Terhadap Lembaga Pemasyarakatan 
+Di Indonesia,” Cepalo, Vol. 3 No. 2 (2019), 129.  
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+291 
+ 
+Berdasarkan data Direktorat Jenderal Pemasyarakatan Kementerian Hukum 
+dan Hak Asasi Manusia yang telah dihimpun per tanggal 19 September 2022 ini, 
+jumlah penghuni Lapas sebanyak 276.172 orang yang terdiri dari 227.431 narapidana 
+dan 48.741 tahanan, di mana daya tampung Lapas berada di angka 132.107 jiwa. Hal 
+tersebut menunjukkan secara jelas bahwa adanya kelebihan kapasitas Lembaga 
+Pemasyarakatan di Indonesia yang mencapai angka 109% dalam skala nasional.3 Hal 
+ini merupakan permasalahan yang sangat serius untuk segera diselesaikan oleh 
+pemerintah. 
+Fenomena tersebut berbanding terbalik dengan apa yang terjadi di Belanda, 
+negara yang menjadi ibu kandung dari sistem hukum Indonesia sekarang ini. 
+Paradigma hukum pidana yang lahir dari rahim Negara Belanda melalui kolonialisme 
+malah angka kejahatan di negara tersebut mengalami penurunan yang 
+mengakibatkan harus ditutupnya beberapa Lapas yang ada. Ada fenomena Belanda 
+menyewakan Lapas kosongnya kepada Belgia dan Norwegia, dimana salah satu 
+penjara yang dikenal sangat keras di Belanda, yaitu Het Arresthuis di Roermond, kini 
+berubah bentuk menjadi hotel mewah. Kementerian Hukum Belanda menuturkan 
+bahwa sistem hukum Belanda lebih fokus untuk tidak mendakwa kejahatan yang 
+tidak meyebabkan korban, rehabilitasi, vonis pendek, program keterampilan dan 
+pembaharuan kembali dengan masyarakat.4 
+ 
+Di sinilah dituntut respon pemerintah dalam menyikapi fenomena Lapas 
+tersebut dengan mengambil beberapa kebijakan yang dirasa perlu untuk dilakukan 
+misalnya perbaikan bangunan atau rehabilitasi sampai dengan pembuatan gedung 
+baru untuk menambah daya tampung. Permasalahan ini merupakan hal serius yang 
+harus segera diselesaikan oleh pemerintah.5 Senada dengan yang disampaikan oleh 
+ 
+3Annisa Mutia (ed.), “Penghuni Lapas dan Rutan Kelebihan Kapasitas 109% pada September 
+2022,” 
+dalam 
+https://databoks.katadata.co.id/datapublish/2022/09/23/penghuni-lapas-dan-rutan-
+kelebihan-kapasitas-109-pada-september-2022, diakses tanggal 10 Desember 2022. 
+4Rocky Marbun, “Konsep Diyat Sebagai Alternatif Pemidanaan dalam Sistem Peradilan 
+Pidana Untuk Mengatasi Fenomena Overcapacity Lembaga Pemasyarakatan,” Jurnal Hukum dan 
+Peradilan, Vol. 6 No. 2 (2017); 193. 
+5Samuel Arsheldon, Supriardoyo Simanjuntak, Kornelius Benuf, “Strategi Antisipasi Over 
+Kapasitas Lapas Suatu Refleksi Atas Kebijakan Pencegahan Penyebaran Covid-19,” Adliya, Jurnal 
+Hukum dan Kemanusiaan, Vol. 14, No. 1 (2020); 3. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+292 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+Woolf bahwa dalam mengelola Lapas perlu memperhatikan faktor yang 
+memperburuk kondisi dalam lapas, diantaranya: kepadatan penjara yang ekstrim; 
+kelebihan penghuni; keadaan penjara yang buruk; kerusuhan diantara para tahanan 
+dan lainnya.6  
+ 
+Jika melihat dalam perspektif hukum Islam sendiri mengenai pidana penjara 
+tersebut masih terdapat perbedaan pendapat di kalangan ulama. Kebanyakan ulama 
+membolehkan pemerintah membuat penjara. Meskipun demikian, ada ulama yang 
+tidak membolehkannya karena Nabi Muhammad saw. dan Abu Bakar tidak 
+membuatnya. Di sisi lain, seringkali dipahami bahwa dalam tradisi Islam tidak 
+dikenal adanya “pidana penjara” seperti terlihat dalam pandangan Hazairin. Menurut 
+Hazairin, dalam Alquran memang disebut adanya cerita mengenai lembaga penjara 
+itu, yaitu dalam cerita mengenai lembaga penjara zaman Nabi Yusuf as yang disebut 
+dengan istilah “al-sijnu” yang apabila diartikan secara harfiah bermakna penjara. 
+Akan tetapi, tidak terdapat keterangan yang menunjukkan bahwa sistem kepenjaraan 
+seperti itu perlu diterapkan dalam rangka hukum Islam yang harus diterapkan oleh 
+Nabi Muhammad saw. Oleh karena itu, Hazairin menolak gagasan kepenjaraan itu 
+(lembaga penjara) sebagai gagasan Islam.7 
+Namun penulis menilai gagasan negara terhadap kebijakan yang diambil 
+untuk mengatasi Lapas kurang efektif. Logika pemerintah dalam menyasar 
+permasalahan ini fokus pada mengobati gejala, bukan mengatasi dari segi penyebab, 
+sehingga solusi yang ditawarkan pemerintah bersifat jangka pendek dan tidaklah 
+betul-betul solutif. Perlu adanya pengkajian ulang pada kebijakan penerapan pidana 
+penjara terhadap undang-undang di luar Kitab Undang-Undang Hukum Pidana 
+(KUHP), misalnya saja Undang-Undang Nomor 35 Tahun 2009 tentang Narkotika, 
+dan Undang-Undang Nomor 21 Tahun 2007 tentang Pemberantasan Tindak Pidana 
+Perdagangan Orang. Hal tersebut didasari karena jumlah narapidana tertinggi secara 
+nasional itu ada pada jenis pidana narkotika tersebut, dan tindak pidana perdagangan 
+ 
+6Rissang Achmad Putra Perkasa, “Optimalisasi Pembinaan Narapidana Dalam Upaya 
+Mengurangi Overcapacity Lembaga Pemasyarakatan,” Jurnal Wajah Hukum, Vol. 4, No. 1 (2020); 
+110. 
+7M. Nurul Irfan, Hukum Pidana Islam (Jakarta: Amzah, 2016), 101. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+293 
+ 
+orang (human trafficking) menjadi kejahatan transnasional yang terorganisir dan 
+melanggar hak-hak asasi manusia. 
+Berdasarkan permasalahan tersebut, maka penelitian ini berfokus pada 
+penetapan dan relevansi dari terjadinya kelebihan kapasitas Lapas di Indonesia dalam 
+kebijakan pemidanaan yang dituangkan dalam undang-undang di luar KUHP. 
+Penelitian ini adalah deskriptif analitis dengan jenis penelitian normatif. Penelitian 
+normatif merupakan telaah kepustakaan terhadap asas-asas hukum. Data yang 
+digunakan dalam penelitian ini adalah data sekunder dengan menggunakan bahan 
+hukum primer, bahan hukum sekunder dan bahan hukum tersier. 
+Teknik pengumpulan data dilakukan melalui studi kepustakaan yang 
+kemudian dianalisis secara kualitatif. Analisa data secara kualitatif-normatif 
+dilakukan melalui penguraian gambaran atau deskriptif dari data yang diperoleh dan 
+dihubungkan dengan isu yang diteliti. Penelitian ini mengkaji secara yuridis 
+kebijakan pemerintah terkait pemidanaan yang tertuang dalam beberapa undang-
+undang di luar KUHP, Undang-Undang Nomor 35 Tahun 2009 tentang Narkotika, 
+dan Undang-Undang Nomor 21 Tahun 2007 tentang Pemberantasan Tindak Pidana 
+Perdagangan Orang. 
+ 
+B. Pidana Penjara dalam Konteks Hukum Islam 
+Ajaran Islam yang dirisalahkan kepada Nabi Muhammad saw. menjadi 
+rahmatan lil alamin (QS al-Anbiya>/21: 107) dan mengatur segala sendi kehidupan 
+manusia, baik ibadah, sosial, ekonomi, pendidikan, maupun hukum. Salah satunya 
+misalnya dalam hukum pidana Islam atau fiqh al-jinayah, sistem sanksi “perampasan 
+kemerdekaan” atau sering disebut dengan penjara menjadi bahan perbedaan pendapat 
+para ulama. Terdapat 2 (dua) pendapat ulama tentang sanksi pidana penjara dalam 
+hukum Islam, yaitu: pertama, pendapat yang menyatakan bahwa pidana penjara 
+bukan bagian dari sistem hukuman dalam pidana Islam. Kedua, berpendapat 
+sebaliknya bahwa sanksi pidana penjara merupakan bagian integral dari sistem sanksi 
+dalam hukum pidana Islam. Keduanya memiliki argumentasinya masing-masing 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+294 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+untuk mempertahankan pendapatnya tersebut.8 Namun pada prinsipnya pemidanaan 
+dimaksudkan untuk memberikan efek jera kepada pelaku tindak pidana, sehingga 
+tidak akan mengulangi lagi perbuatannya. 
+Jimly Asshiddiqie berpendapat sebagaimana dikutip Adam bahwa jika 
+pengertian pidana buang itu dipahami sebagai al-sijnu (penjara), maka bentuk pidana 
+buang ini juga harus dihubungkan dengan tradisi kepenjaraan yang memang sudah 
+ada sebelum Islam. Sebagaimana diuraikan di atas mengenai pidana penjara di zaman 
+Nabi Yusuf (QS Yusuf/12: 32, 33, dan 35), lembaga penjara ini memang sudah ada 
+sebelum Islam. Oleh karena itu, besar kemungkinan bahwa di zaman Rasulullah saw. 
+sendiripun, sebelum ayat tersebut diturunkan, lembaga penjara itu sudah ada. Jika ini 
+benar, maka pidana pembuangan itu sendiri sebenarnya hanyalah merupakan sebutan 
+lain saja dari bentuk pidana penjara yang memang sudah menjadi tradisi sebelumnya. 
+Oleh karena itu, penyebutan al-sijnu (penjara) menjadi yunfaû (dibuang) hanyalah 
+soal penghalusan istilah yang dapat pula dihubungkan dengan semangat Alquran 
+untuk lebih meringankan beban yang harus dipikul oleh terpidana dan 
+menyederhanakan pelaksanaan pidana.9 
+Di sisi lain, salah satu sanksi ta’zîr yang diperdebatkan oleh para ulama 
+adalah sanksi pidana badan, yaitu penjara. Dalam bahasa Arab, ada dua istilah untuk 
+hukuman penjara, yaitu (1) al-habsu yang berarti al-man’u (pencegahan atau 
+penahanan), dan (2) al-sijnu yang artinya sama dengan al-habsu. Dengan demikian, 
+kedua kata tersebut mempunyai arti yang sama dan ulama juga menggunakan 
+keduanya. Menurut Ibn al-Qayyim sebagaimana dikutip oleh M. Nurul Irfan, al-habsu 
+bermakna menahan seseorang untuk tidak melakukan perbuatan hukuman, baik 
+tahanan itu ditahan di rumah, di masjid, maupun di tempat lainnya.10 
+ 
+Dalam konteks jarimah ta’zir11 sangat dimungkinkan dalam hukum pidana 
+Islam, qadi (hakim) menjatuhkan sanksi penahanan, tetapi dalam konteks Alquran 
+ 
+8Panji Adam, “Eksistensi Sanksi Pidana Penjara Dalam Jarimah Ta’zir,” Tahkim: Jurnal 
+Peradaban dan Hukum Islam, Vol. 2, No. 2 (2019); 51. 
+9Ibid., 55. 
+10Irfan, Hukum Pidana Islam, 101. 
+11Ta’zir adalah suatu istilah untuk hukuman atas jarimah-jarimah yang hukumannya belum 
+ditetapkan oleh syara’. Di kalangan fuqaha, jarimah-jarimah yang hukumannya belum ditetapkan oleh 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+295 
+ 
+dan hadis maka sanksi pidana dalam hukum pidana Islam, khususnya untuk jarimah 
+hudud, tidak mengenal bentuk pidana penjara. Hal ini dapat dipahami mengingat 
+konsep pemenjaraan adalah konsep yang lahir dari dunia Barat, sehingga dalam dunia 
+Islam pada saat diterimanya wahyu Allah swt. oleh Nabi Muhammad saw. memang 
+tidak mengenal penjara sebagai tempat memidana pelaku kejahatan. Pidana penjara 
+dengan menempatkan terpidana di dalam penjara tidak dikenal dalam pandangan 
+hukum pidana Islam.12 Hal ini bilamana saat ini pidana penjara dapat diterima hanya 
+sepanjang pidana tersebut banyak memberikan kemaslahatan atau kebaikan atau 
+kemanfaatan bagi masyarakat. Dengan demikian, pidana penjara bukan suatu 
+kemutlakan dalam pandangan hukum Islam. 
+ 
+Pada jarimah ta’zir sebenarnya sanksi pidana dalam hukum pidana Islam lebih 
+dikembangkan, terbukti dalam jarimah ta’zir dimungkinkan hakim menjatuhkan 
+penahanan, tetapi penahanan terhadap pelaku kejahatan dilakukan setelah 
+dikenalnya penjara. Jelas dalam jarimah ta’zir tersebut kemudian dikembangkan 
+sanksi-sanksi lain yang dijatuhkan hakim disesuaikan dengan perkembangan pada 
+masa kini.13 
+Menurut istilah Ibnu Qayyim al-Jauziyah mengatakan sesungguhnya penjara 
+di dalam Islam bukan penjara yang seperti kita ketahui (tempat sempit), akan tetapi 
+penjara dalam Islam adalah menahan seseorang dan mencegahnya untuk melakukan 
+hal sesuai dengan keinginannya, baik penahanan itu dilakukan di rumah, di masjid 
+ataukah menugaskan seseorang mengawasinya. Beliau berpendapat bahwa terdapat 
+hadis yang diriwayatkan oleh Ibn Majah yang menjadi hujjah (argumen) bahwa 
+pidana penjara merupakan bagian dari sistem sanksi dalam hukum pidana Islam,14 
+yaitu: 
+ 
+syara’ dinamakan jarimah ta’zir. Jadi istilah ta’zir bisa digunakan untuk hukuman dan bisa juga untuk 
+jarimah atau tindak pidana. Lihat Farid Maulana Ramadhani, “Tinjauan Fiqh Jinayah terhadap 
+Pelanggaran Kampanye Pemilu dalam Undang-Undang Nomor 8 Tahun 2012 tentang Pemilihan 
+Umum,” Skripsi (Surabaya: UIN Sunan Ampel, 2014), 21. 
+12Otto Yudianto, “Eksistensi Pidana Penjara Dalam Perspektif Hukum Islam Dan Hukum 
+Adat,” DIH: Jurnal Ilmu Hukum, Vol. 8 No. 15 (2012); 23-24. 
+13Ibid. 
+14Ibnu Qayyim al-Jauziyah, Ath-Thuruq Al-Hukmiyah Fi as-Siyasah Asy-Syaríyyah (Kairo, 
+Mathba’atu al-Madani, t.th.), 140. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+296 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+ ِحَدَّث َنَا هَدِيَّةُ بْنُ عَبْدِ الْوَهَّابِ حَدَّث َنَا النَّضْرُ بْنُ ُشَُيْلٍ حَدَّث َنَا اْلِْرْمَاسُ بْنُ حَبِيبٍ عَنْ أَب ْيهِ عَن
+ َ جَد ِهِ قَالَ أَت َيْتُ النَِّبَِّ صَلَّى اَّللَُّ عَلَيْهِ وَسَلَّمَ بِغَرِميٍ ِلِ ف َقَالَ ِلِ الْزَمْهُ ُثَُّ مَرَّ ِبِ آخِرَ الن َّهَارِ ف َقَال 
+ ٍمَا ف َعَلَ أَسِريُكَ َيَ أَخَا بَِنِ َتَِيم 
+)(رواه إبن ماجه15
+  
+Artinya: 
+ 
+Telah menceritakan kepada kami Hadiah bin Abdul Wahhab berkata, telah 
+menceritakan kepada kami an-Nadlr bin Syumail berkata, telah menceritakan 
+kepada kami al-Hirmas bin Habib dari Bapaknya dari Kakeknya, ia berkata, 
+"Aku mendatangi Nabi saw. bersama orang yang meminjam uangku, beliau lalu 
+bersabda kepadaku: "Mintalah kepadanya! "Kemudian beliau berjumpa 
+denganku di sore hari, beliau bertanya: "Apa yang dikerjakan oleh tawananmu 
+wahai saudara bani Tamim?" (HR Ibnu Majah). 
+ 
+Syariat Islam sebenarnya telah memberikan tawaran hukum pidana Islam 
+yang adil dan relevan. Hukum pidana Islam tidak meniadakan hukuman penjara 
+secara mutlak, akan tetapi hukuman penjara disyariatkan sebagai hukuman kedua 
+yang termasuk ke dalam hukuman ta’zir yang keputusannya di tangan Hakim dengan 
+melihat keadaan jenis kejahatan, pelaku dan korban. Selain hukuman ta’zir di dalam 
+syariat Islam terdapat hukuman yang lebih berat, yaitu hukuman hudud16 dan qisas,17 
+serta ada pula hukuman diyat.18 
+ 
+Hukum pidana Islam merupakan syariat yang bertujuan untuk merealisasikan 
+kemaslahatan pada masyarakat, baik kemaslahatan di dunia maupun akhirat. Secara 
+materiil, syariat Islam mewajibkan setiap manusia untuk melaksanakan kewajiban 
+ 
+15Abi Abdillah Muhammad bin Yazid bin Majah ar-Rabi’i al-Qazwini, Sunan Ibn Majah, No. 
+Hadis: 2419, terj. Abdul Hayyie Al-Kattani, et.al. (Cet. I; Jakarta: Gema Insani, 2016) 
+16Hudud ialah pidana yang diancamkan hukuman had, yaitu hukuman yang telah ditentukan 
+macam dan jumlahnya dan menjadi hak Tuhan. Dalam fikih, pidana hudud ada tujuh, yaitu: zina, 
+qadzaf (menuduh orang lain berzina tanpa bukti), meminum minuman keras, mencuri, perampokan-
+gangguan keamanan, murtad, dan pemberontakan. Lihat Abd. Rahman I. Doi, Hudud dan Kewarisan 
+(Cet. I; Jakarta: RajaGrafindo Persada, 1996). 
+17Qisas dalam arti bahasa adalah menyelusuri jejak; keseimbangan dan kesepadanan. 
+Sedangkan menurut istilah syara, qisas adalah memberikan balasan yang kepada pelaku sesuai dengan 
+perbuatannya, misalnya perbuatan yang dilakukan oleh pelaku adalah menghilangkan nyawa orang 
+lain (membunuh), maka hukuman yang setimpal adalah dibunuh atau hukuman mati. Qisas ini menjadi 
+hak manusia (hak individu). Lihat Ahmad Wardi Muslich, Hukum Pidana Islam (Jakarta: Sinar 
+Grafika, 2005). 
+18Agus Santoso, “Transformasi Pemikiran Hukum Pidana Islam Terhadap Pembaharuan 
+Sistem Hukum Pidana Penjara di Indonesia,” Al Mabsut, Vol. 15, No.1 (2021); 113. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+297 
+ 
+asasi yang terkandung dalam syariat. Kewajiban asasi ini menempatkan Allah 
+sebagai pemegang otoritas, baik yang ada pada diri sendiri maupun yang ada pada 
+orang lain. Setiap individu hanya melaksanakan kewajiban yang Allah swt. 
+perintahkan. Perintah Allah yang ditunaikan mengandung kemaslahatan bagi 
+masyarakat.19 
+ 
+Abdul Qadir ‘Audah menjelaskan bahwa al-‘uqubah (hukuman) adalah 
+balasan yang  setimpal untuk menegakkan kemaslahatan umum karena melakukan 
+perbuatan yang tidak sesuai dengan perintah Allah swt.20 Tujuan utama penjatuhan 
+hukuman dalam syariat Islam adalah pencegahan (arraddu wa al-zajru), pengajaran 
+dan pendidikan (al-islah wa at-tahdhib), menciptakan kemaslahatan, menjauhkan 
+dari kemafsadatan, kemaksiatan serta menyeru kepada ketaatan21. Penjatuhan 
+hukuman dalam syariat Islam semata-mata untuk kemaslahatan manusia untuk 
+memparbaiki individu dan menjaga ketertiban masyarakat.22 
+Hukum Islam ketika menerapkan hukum qisas (balas dendam) bukanlah yang 
+menjadi pertimbangan semata, melainkan menjustifikasi aturan konkrit tentang 
+nilai-nilai keadilan. Dengan kata lain, tidak boleh memberikan hukuman melebihi 
+kesalahan seseorang. Spiritualitas hukum qisas dan diyat23 sangat memperhatikan 
+aspek korban kejahatan dan yang terpenting tidak memanjakan pelaku kejahatan.24 
+Intinya bahwa ajaran Islam sangat memperhatikan hak-hak pelaku dan korban, 
+sehingga memberikan rasa keadilan dalam hukum dan tentunya ini sesuai dengan 
+tujuan adanya hukum menciptakan kemaslahatan. 
+ 
+ 
+19Yudianto, “Eksistensi Pidana Penjara," 21. 
+20Abdul Qadir Audah, Al-Tasyri’ al-Jinaiy al-Islamiy, Jil. I (Beirut: Muassasah Al-Risalah, 
+1987), 456. 
+21Islamul Haq, “Jarimah Terhadap Kehormatan Simbol-Simbol Negara (Perspektif Hukum 
+Pidana Indonesia dan Hukum Pidana Islam),” Jurnal Syari’ah Dan Hukum Diktum, Vol. 15, No. 1 
+(2017); 23–42. 
+22Muhammad Ali Rusdi, “Maslahat Sebagai Metode Ijtihad Dan Tujuan Utama Hukum 
+Islam,” Diktum: Jurnal Syariah Dan Hukum, Vol. 15, No. 2 (2017); 151–68. 
+23Diyat adalah sejumlah harta yang dibebankan kepada pelaku, karena terjadinya tindak 
+pidana (pembunuhan atau penganiayaan) dan diberikan kepada korban atau walinya. Lihat Sayid 
+Sabiq, Fiqh As-Sunnah, Juz II (Cet. I; Bairut: Dar al-Fikr, 1980), 429. 
+24Makhrus Munajat, Hukum Pidana Islam di Indonesia (Yogyakarta: Bidang Akademik UIN 
+Sunan Kalijaga, 2008), 174.  
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+298 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+C. Pidana Penjara dalam Pembinaan Narapidana di Lapas 
+Orientasi mengenai pemasyarakatan harusnya sejalan dengan perubahan 
+konsep tujuan pemasyarakatan dari konsep retribusi (pembalasan) kearah konseps 
+rehabilitasi (perbaikan). Konsep yang demikian itu tergambar dari munculnya 
+gagasan perubahan mengenai lembaga penjara (dalam sejarah disebut sebagai rumah 
+penjara) menjadi Lembaga Pemasyarakatan (Lapas). Namun pada kenyataannya 
+pidana perampasan kemerdekaan membawa pendidikan kejahatan oleh penjahat. 
+Lapas tidak jarang dijadikan sebagai tempat pembelajaran bagi para penjahat untuk 
+membuat penjahatpenjahat yang lebih professional lagi.  
+ 
+Penjara dipandang sebagai suatu tempat penjeraan bagi mereka yang pernah 
+melakukan kejahatan. Jika dilihat dari masalah efektivitas pidana penjara ini juga 
+menjadi perhatian Kongres Perserikatan Bangsa-Bangsa (PBB) V pada tahun 1975 
+mengenai Prevention of Crime and The Treatment of Offenders dinyatakan bahwa 
+efektivitas pidana perampasan kemerdekaan menjadi perdebatan sengit di 
+kebanyakan Negara. Selanjutnya dikemukan bahwa di banyak Negara terdapat krisis 
+kepercayaan terhadap efisiensi pidana penjara dan ada kecenderungan untuk 
+mengabaikan 
+kemapuan 
+lembaga-lembaga 
+kepenjaraan 
+dalam 
+menunjang 
+pengendalian atau pengurangan kejahatan.25  
+ 
+Pembinaan bertujuan untuk meningkatkan kualitas warga 
+binaan 
+pemasyarakatan agar mereka menyadari kesalahan, tidak mengulangi lagi kesalahan 
+yang sama serta memperbaiki diri sehingga dapat diterima di dalam masyarakat. 
+Tidak hanya itu namun mereka pula dapat berperan aktif dalam pembangunan 
+maupun hidup secara wajar sebagai warga negara yang baik dan bertanggug jawab. 
+Gagasan tentang pembinaan bagi narapidana di dalam lembaga pemasyarakatan 
+dinilai sangat maju dibandingkan dengan realita yang terjadi di lembaga 
+pemasyarakatan saat ini.  
+ 
+25Barda Nawawi Arief, Kebijakan Legislatif dalam Penaggulangan Kejahatan dengan Pidana 
+Penjara (Semarang: Badan Penerbit Universitas Diponegoro, 2000), 43. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+299 
+ 
+ 
+Lapas tetap menjadi school of crime bagi warga binaan.26 Prisonisasi yang 
+sulit untuk dihindari bagi warga binaan terlebih lagi apabila pengawasan secara tidak 
+optimal dilakukan. Warga binaan yang tadinya dipidana karena pencurian ringan 
+setelah mejalani hukuman di Lapas dan kembali ke masyarakat bisa melakukan 
+kejahatan yang lebih berat misalnya saja penjualan narkoba. Hal tersebut disebabkan 
+oleh warga binaan telah belajar melakukan berbagai jenis kejahatan saat di Lapas.27 
+Kejahatan seperti penganiayaan, penjualan narkotika, perjudian, penyebaran berita 
+bohong dan lain sebagainya yang dilakukan di Lapas bukan rahasia lagi. Hal seperti 
+itu banyak terjadi hampir di setiap lembaga pemasyarakatan di Indonesia,28 
+khususnya dilakukan oleh resedivis. 
+ 
+Kondisi lain yang juga menjadi penyebab residivis adalah stigmatisasi negatif 
+mantan warga binaan oleh masyarakat. Mantan warga binaan seringkali dilabelisasi 
+sebagai penjahat yang harus diwaspadai. Akibatnya, mereka sulit untuk 
+mendapatkan pekerjaan kembali. Satu-satunya cara yang dapat dilakukan untuk 
+memenuhi kebutuhan hidup adalah dengan melakukan kejahatan sepeti menjadi 
+preman jalanan, terjun ke dunia prostitusi, menjadi penjual narkotika dan sebagainya. 
+Kondisi tersebut tentu sangat memprihatinkan, sehingga diperlukan upaya untuk 
+meminimalisasi pidana penjara.29 
+ 
+Penilaian negatif pada pidana penjara pada umumnya menyatakan, bahwa 
+pidana penjara tidak hanya mengakibatkan terampasnya kemerdekaan seseorang 
+tetapi juga menimbulkan akibat negatif terhadap hal-hal yang berhubungan dengan 
+dirampasnya kemerdekaan itu sendiri. Menurut Wolf Minddendrof sebagaimana 
+yang dikutip dalam Abdul Kholiq, et.al bahwa: 
+ 
+26I Wayan Putu Sucana Aryana, “Efektifitas Pidana Penjara Dalam Membina Narapidana,” 
+DIH; Jurnal Ilmu Hukum, Vol. 11 No. 21 (2015); 41.  
+27Ibid.  
+28Rahel Narda Chaterina, “Polri Ungkap Banyak Napi Lakukan Kejahatan di Lapas, Sebarkan 
+Berita 
+Bohong 
+hingga 
+Pencucian 
+Uang,” 
+Diamanty 
+Meiliana 
+(ed.) 
+dalam 
+https://nasional.kompas.com/read/2022/01/19/11591391/polri-ungkap-banyak-napi-lakukan-
+kejahatan-dari-lapas-sebarkan-berita-bohong, diakses 18 Desember 2022 
+29Aryana, “Efektifitas Pidana Penjara,” 41-42. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+300 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+Sangatlah sulit untuk melakukan evaluasi terhadap efektivitas dari General 
+Deterrence30 karena mekanisme pencegahan (deterence) itu tidaklah diketahui. 
+Kita tidak dapat mengetahui hubungan yang sesunghuhnya antara sebab dan 
+akibat. Orang mungkin melakukan kejahatan atau mungkin mengulanginya 
+lagi tanpa hubungan dengan ada tidaknya undang-undang atau pidana yang 
+dijatuhkan. Sarana kontrol lainnya, seperti kekuasaan orang tua, kebiasaan, 
+atau agama mungkin dapat mencegah perbuatan yang sama kuatnya dengan 
+ketakutan orang pada pidana.31 
+ 
+Dengan demikian pemidanaan dimaksudkan untuk melindungi seseorang atau 
+masyarakat terhadap perbuatan kejahatan. Diasingkannya si terpidana untuk 
+sementara waktu, maka masyarakat akan mendapatkan rasa aman dan merasa 
+dilindungi terhadap perbuatan orang jahat atau yang melakukan perbuatan pidana. 
+ 
+D. Korelasi antara Kebijakan Formulasi Pidana Penjara dalam Undang-Undang 
+Narkotika dan Perdagangan Orang dengan Kelebihan Kapasitas Lapas di 
+Indonesia 
+ 
+Hukum memiliki tugas untuk membatasi (memberi sekat) maupun 
+melindungi kepentingan manusia dalam kehidupan bermasyarakat.32 maka dari itu 
+perlu adanya pembaharuan dalam bidang hukum apabila terdapat aturan-aturan yang 
+sudah tidak relevan lagi terutama dalam bidang hukum pidana.33  
+Pidana penjara merupakan suatu pidana berupa pembatasan kebebasan 
+bergerak dari seorang terpidana dalam sebuah lembaga pemasyarakatan.34 Istilah 
+“penjara” mempunyai makna ganda, yaitu sebagai tempat bagi pelaku kejahatan 
+untuk menerima serta menjalani hukuman; dan sebagai salah satu jenis sanksi pidana 
+ 
+30General deterence berarti pencegahan secara umum. Deterence adalah pencegahan 
+pelanggaran hukum dengan manfaat melalui penolakan. Mengartikan bahwa seseorang akan 
+mengurungkan niatnya untuk melakukan kejahatan apabila melihat hukuman yang keras. Lihat Topo 
+Santoso dan Eva Akhyani Zulfa, Kriminologi (Jakarta: PT Raja Grafindo Pesada, 2007), 9. 
+31Abdul Kholiq, Barda Nawawi Arief, Eko Soponyono, “Pidana Penjara Terbatas: Sebuah 
+Gagasan dan Reorientasi Terhadap Kebijakan Formulasi Jenis Sanksi Hukum Pidana di Indonesia,” 
+Jurnal Law Reform, Vol. 11 No. 1 (2015); 74. 
+32Soedjono Dirdjosisworo, Pengantar Ilmu Hukum (Jakarta: PT Rajagravindo Persada, 2005), 
+5. 
+33 Ratna Kumala Sari, Nyoman Serikat Putra Jaya, “Pertanggungjawaban Pidana Perusahaan 
+Teknologi Atas Tindak Pidana Kecelakaan Lalu Lintas Oleh Pengemudi Ojek Online,” Jurnal 
+Magister Hukum Udayana (Udaya Master Law Journal), Vol. 8, No.1 (2019); 39. 
+34Tolib Setiady, Pokok-Pokok Hukum Penitensier Indonesia (Bandung: Alfabeta, 2010), 92. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+301 
+ 
+yang telah diatur pada Pasal 10 Kitab Undang-Undang Hukum Pidana (KUHP).35 
+Pokok pemikiran tentang cita-cita suatu pemidanaan, yaitu untuk memperbaiki 
+pribadi penjahat itu sendiri, membuat orang jera untuk melakukan dan membuat 
+penjahat-penjahat tertentu tidak mampu untuk melakukan tindak pidana.36 
+Sanksi yang diberikan kepada pelaku juga memberikan efek negatif berupa 
+dehumanisasi, yaitu pengasingan dari masyarakat selama terpidana kehilangan 
+kemerdekaannya.37 Ketidakefisienan pidana penjara banyak dikritik secara ilmiah 
+sebagai lembaga pembinaan dan efek negatif dari pidana penjara seperti prisonisasi38 
+dan stigmatisasi39 dalam masyarakat.40 Tidak hanya sampai disitu, efek negatif 
+lainnya terampasnya juga kehidupan seksual yang normal seseorang, sehingga sering 
+terjadi homoseksual dan mastrubasi dikalangan narapidana.41 Adanya reorientasi 
+fungsi pembinaan bagi narapidana ditunjukkan dengan transformasi penjara menjadi 
+lembaga pemasyarakatan.42 
+Pada dasarnya, hukuman penjara ditujukan kepada penjahat yang 
+menunjukkan watak buruk dan nafsu bejat.43 Dahulu, ada anggapan bahwa orang bisa 
+dididik di penjara dan berubah menjadi warga negara yang lebih baik.44 Namun, 
+ 
+35I Wayan Putusucana Aryana, “Efektivitas Pidana Penjara dalam Membina Narapidana,” 
+DIH: Jurnal Ilmu Hukum, Vol. 11, No. 21 (2015); 39. 
+36Tina Asmarawati, Pidana dan Pemidanaan dalam Sistem Hukum di Indonesia (Yogyakarta; 
+Deepublish, 2015), 23. 
+37Asiyah Jamilah dan Hari Sutra Disemadi, “Pidana Kerja Sosial: Kebijakan Penanggulangan 
+Overcrowding Penjara,” Jurnal Ius Kajian Hukum Dan Keadilan, Vol. 8 No.1 (2020); 21. 
+38Prisonisasi adalah proses penyerapan tatacara 
+kehidupan di dalam lembaga 
+pemasyarakatan. Proses penyerapan ini dilakukan melalui proses belajar (learning process) dalam 
+berinteraksi dengan sesama narapidana. Lihat Dian Permana, “Prisonisasi dan Masalahnya dalam 
+Sistem Pemasyarakatan (Studi Kasus Pada Lembaga Pemasyarakatan Klas I Tanjung Gusta Medan,” 
+Tesis (Medan: Universitas Sumatera Utara, 2010). 
+39Stigma merupakan tindakan memberikan label sosial yang bertujuan mencemari seseorang 
+atau sekelompok orang dengan pandangan buruk. Stigma adalah proses devaluasi dinamis yang 
+dengan signifikan mendiskreditkan seseorang. Lihat Mubarok, “Stigmatisasi Pemberitaan Terorisme 
+di Media Massa,” Jurnal Interaksi: Jurnal Ilmu Komunikasi, Vol. 1, No. 1 (2012); 34-45. 
+40Sani Siti Aisyah, “Pengembangan Ide Kerjasosial sebagai Bentuk Pidana Alternatif di 
+Indonesia,” Jurnal Kriminologi Indonesia, Vol. 14 No. 1, (2018); 25. 
+41Ibid., 44. 
+42Andika Oktavian Saputra, Sylvester Enricho Mahardika, Pujiyono, “Kebijakan Hukum 
+Pidana dalam Upaya Penanggulangan Tindak Pidana untuk Mengurangi Overcrowded Lembaga 
+Pemasyarakatan Pada Masa Pandemi Covid-19, Jurnal Usm Law Review, Vol. 4, No. 1, (2021); 328. 
+43Leden Marpaung, Asas-Teori-Praktik Hukum Pidana (Jakarta: Sinar Grafika, 2008), 108. 
+44Boaz Sangero, “From Beccaria to Negation of Incarceration for Non-Violent Property 
+Offenses,” Arizona Journal of International of Comparative Law, Vol. 37 (2020); 329. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+302 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+laporan dan penelitian menunjukkan bahwa yang terjadi adalah sebaliknya, tidak 
+hanya narapidana yang tidak dibina, tetapi mereka juga menjalani proses “penjara” 
+yang membuat mereka lebih berbahaya bagi masyarakat daripada sebelum di 
+penjara.45 Pada akhirnya Lapas tetap menjadi school of crime46 bagi warga binaan.47 
+Situasi kelebihan kapasitas yang terjadi pada Lapas atau Rutan di Indonesia 
+dewasa ini sudah seharusnya mendapat perhatian yang lebih serius dari pihak 
+pemerintah, karena kelebihan kapasitas ini dapat memunculkan kerugian yang tidak 
+sedikit, di mana kerugian bagi terpidana yang menjalani hukuman, seperti tidak 
+dapat tercukupinya hak dasar dari setiap narapidana atau tahanan serta hak-hak 
+keluarga dari narapidana tersebut, yang mana masalah ini sudah terjadi di Negara 
+Indonesia selama bertahun-tahun. Namun, sampai detik ini belum dapat ditemukan 
+formulasi yang pas untuk mengurangi serta mengatasi permasalahan kelebihan 
+kapasitas tersebut.48 Faktor yang sangat berpengaruh dalam pemenuhan hak 
+narapidana atas layanan kesehatan dan makan di Lapas diakibatkan kelebihan 
+kapasitas yang terjadi di Lapas.49 
+Kelebihan kapasitas sederhananya dapat disebabkan oleh tingginya jumlah 
+narapidana yang masuk yang tak berbanding lurus dengan kapasitas lembaga 
+pemasyarakatan, besaran jumlah napi yang masuk dengan jumlah narapidana yang 
+keluar amat tak berimbang, jumlah narapidana baru jauh melebihi jumlah masa 
+pidana penjaranya dan jumlah narapidana yang keluar Lapas.50 Penjara yang penuh 
+ 
+45Ibid. 
+46Terminologi school of crimes merujuk pada keadaan dimana penjara dijadikan tempat 
+untuk belajar mengenai kejahatan, baik secara langsung melalui interaksi dengan sesama narapidana, 
+ataupun secara tidak langsung melalui perlakuan lingkungan atau proses kognitif (inspirasi perilaku) 
+yang dialami selama didalam penjara. Lihat Panca Kursistin Handayani, “Fenomena School of Crime 
+dalam Kasus Tindak Pidana Berulang: Studi Kasus di Lembaga Pemasyarakatan Kelas IIA Jember,” 
+Jurnal Psikogenesis, Vol. 7, No. 2, Desember 2019; 142-157. 
+47Graciella Patras, “Kajian Yuridis tentang Overcrowded yang Terjadi di Lembaga 
+Pemasyarakatan Kelas II A Manado Berdasarkan Peraturan Menteri Hukum dan Hak Asasi Manusia 
+Nomor 11 Tahun 2017,” Lex Et Societatis, Vol. 8, No. 1 (2020); 155. 
+48Jamilah dan Disemadi, “Pidana Kerja Sosial,” 28. 
+49Riyan Firmansyah, Faisal A. Rani dan Adwani, "Pemenuhan Pelayanan Kesehatan dan 
+Konsumsi Bagi Narapidana di Lapas dan Rutan," Udayana Master Law Journal, Vol. 8, No. 3 (2019); 
+440. 
+50Angkasa, “Over Capacity Narapidana di Lembaga Pemasyarakatan, Faktor Penyebab, 
+Implikasi Negatif, Serta Solusi dalam Upaya Optimalisasi Pembinaan Narapidana,” Jurnal Dinamika 
+Hukum, Vol. 10, No. 3 (2010); 214. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+303 
+ 
+sesak dapat menyebabkan kegilaan, kondisi kekerasan yang berbahaya bagi 
+kesejahteraan fisik dan mental narapidana.51 
+Kelebihan kapasitas Lapas merupakan permasalahan yang kompleks. Oleh 
+karena itu, upaya mengatasi masalah tersebut adalah terlebih dahulu dipahami 
+berbagai faktor yang menyebakan terjadinya masalah tersebut. Secara matematika 
+kelebihan kapasitas Lapas terjadi karena laju pertumbuhan penghuni Lapas tidak 
+sebanding dengan laju pertumbuhan Lapas, sehingga daya tampung lebih kecil 
+dibanding jumlah narapidana yang harus ditampung. Namun hal tersebut tidak 
+terlepas dari kebijakan hukum pidana yang ditetapkan oleh Negara dalam bidang 
+hukum pidana materil, hukum pidana formil maupun hukum pelaksanaan pidana.52 
+Kebijakan formulasi pidana penjara dianggap menjadi salah faktor penyebab 
+terjadinya kelebihan kapasitas di Lapas secara nasional. Minimnya pilihan hakim 
+dalam menjatuhkan putusan terhadap terdakwa menjadi suatu problematika 
+tersendiri, misalnya tahap formulasi, yaitu tahap penetapan hukum pidana mengenai 
+macam perbuatan yang dapat dipidana dan jenis sanksi yang dapat dikenakan. 
+Kekuasaan yang berwenang dalam melaksanakan tahap ini adalah kekuasaan 
+legislatif/formulatif.53 Hukum pidana sedang berubah dan memang seharusnya 
+memerlukan perubahan sesuai dengan perubahan masyarakat. Perubahan ini tidak 
+hanya mengenai perbuatan apa yang merupakan atau dinyatakan sebagai kejahatan, 
+tetapi juga mengenai apa yang seharusnya dijadikan pidana untuk suatu kejahatan, 
+karena gagasan-gagasan mengenai pidana juga telah berubah sesuai dengan 
+perubahan-perubahan itu sendiri, terutama mengenai pandangan hidup tentang moral 
+dan kemasyarakatan.54 
+Terjadinya kelebihan kapasitas di lapas tidaklah terlepas dari kebijakan 
+hukum pidana yang banyak menggunakan pidana penjara sebagai ancaman terhadap 
+ 
+51Morag Macdonald, “Overcrowding and its Impact on Prison Conditions and Health,” 
+International Journal of Prisoner Health, Vol. 14, No. 2 (2018); 65.  
+52Usman, Bahder John Nasution, dan Elizabet Siregar, “Over Kapasitas Lembaga 
+Pemasyarakatan Dalam Perespektif Kebijakan Hukum Pidana”, Wajah Hukum, Vol. 4 No. 2 (2020); 
+437. 
+53Kholiq, Arief, dan Soponyono, “Pidana Penjara Terbatas,” 104. 
+54Silfester Igom, “Kebijakan Legislatif Dalam Rangka Penetapan Sanksi Pidana Penjara 
+Dalam Perkara Pidana,” Lex Crimen, Vol. 3, No. 1 (2014); 75. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+304 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+kejahatan. Alhasil semakin banyak perumusan tindak pidana (kriminalisasi) maka 
+semakin banyak pula perbuatan yang diancam dengan pidana. Ketika jenis pidana 
+yang dipilih untuk diancamkan terhadap pelanggaran norma hukum pidana tersebut 
+adalah pidana penjara, maka akan berimplikasi pada meningkatnya perbuatan yang 
+diancam dengan pidana penjara.  
+Salah satu faktor yang mempengaruhi peningkatan angka pemenjaraan atau 
+kelebihan kapasitas adalah keyakinan sesat para pembuat kebijakan bahwa hukum 
+pidana dan pemenjaraan dapat menghapus kejahatan55 Pemidanaan Indonesia saat ini 
+merujuk kepada asas pengayoman (Penologi Pengayoman) yang berfungsi 
+memberikan ketentraman dan keamanan bagi pelaku tindak pidana, korban dan 
+terutama masyarakat. Dalam konsep ini peran aktif individu narapidana dan 
+masyarakat 
+menjadi 
+dasar 
+penting 
+keberhasilan 
+reintegrasi 
+sosial 
+dan 
+mengembalikan ketertiban dalam masyarakat.56 Hal ini sesuai filosofi pemidanaan 
+pada masa itu yang mendasarkan aliran/mazhab klasik. Sedangkan sistem 
+pemasyarakatan mengedepankan pembinaan narapidana, yang lazim disebut 
+resosialisasi dan/atau rehabilitasi.57 
+Terdapat hubungan antara peningkatan kejahatan dengan tidak tepatnya 
+kebjakan pidana dalam perundang-undangan. Peraturan-peraturan yang berhubungan 
+dengan pemidanaan merupakan salah satu aspek yang paling kacau. Dengan 
+demikian apabila kebijakan formulasi pemidanaan, baik di KUHP maupun di luar 
+KUHP tidak terencana dengan baik dapat menimbulkan disparitas pidana. Menurut 
+Jhon Kaplan yang dikutip dari Silfester Igom menyatakan bahwa akibat yang 
+ditimbulakan dengan adanya disparitas pidana yang mencolok ini yaitu (a) dapat 
+memelihara tumbuhnya atau berkembangnya perasaan sinis masyarakat terhadap 
+sistem pidana yang ada; (b) gagal dalam mencegah terjadinya kejahatan; (c) 
+ 
+55Sangero, “From Beccaria to Negation,” 334. 
+56Akmal Fachrurrozy, “Penologi Pengayoman: Sebuah Tinjauan Pemidanaan dalam Integrasi 
+Ilmu Pengetahuan,” Khatulistiwa Law Review, Vol. 1, No. 1 (2020); 39. 
+57Sudarto, Masalah Penghukuman dan Gagasan Pemasyarakatan: Kapita Selekta Hukum 
+Pidana (Bandung: Alumni,1981), 98. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+305 
+ 
+mendorong aktivitas (meningkatnya) kejahatan; dan (d) merintangi tindakan-
+tindakan perbaikan terhadap para pelanggar.58 
+Melihat data kelebihan kapasitas Lapas saat ini yang naik sampai 109% pada 
+per tanggal 19 September 2022 memang tidak lepas dari kebijakan formulasi pidana 
+penjara yang diatur dalam undang-undang. Contoh pada Undang-Undang Nomor 35 
+Tahun 2009 tentang Narkotika (selanjutnya disebut UU Narkotika) masih 
+menerapkan pidana penjara sebagai sanksi primadona. Hal tersebut dapat dilihat 
+pada Bab XV Ketentuan Pidana pasal 111 sampai dengan pasal 147 itu mengatur 
+tentang pidana penjara dan denda yang sifatnya komulatif, kecuali pasal 128, 131, 
+dan 13459  yang sifatnya alternatif, artinya 90% lebih pasal tentang ketentuan pidana 
+dalam UU Narkotika mengatur tentang pidana penjara dan denda secara komulatif. 
+Di sisi lain, aturan pelaksanaan pidana denda diatur pasal 148 yang berbunyi: 
+Apabila putusan pidana denda sebagaimana diatur dalam Undang-Undang ini 
+tidak dapat dibayar oleh pelaku tindak pidana Narkotika dan tindak pidana 
+Prekursor Narkotika, pelaku dijatuhi pidana penjara paling lama 2 (dua) tahun 
+sebagai pengganti pidana denda yang tidak dapat dibayar.60 
+Mencermati pasal 148 tersebut dapat diketahui bahwa ketika seseorang yang 
+dikenakan pidana denda akan tetapi tidak mampu untuk membayar seperti jumlah 
+yang telah ditentukan maka akan dikenakan pidana penjara sebagai pengganti pidana 
+denda tadi. Ini mengindikasikan bahwa dalam Undang-undang Nomor 35 Tahun 
+2009 tentang Narkotika, sanksi pidana penjara masih menjadi sanksi primadona. 
+Formulasi kebijakan sanksi pidana yang mengatur tentang pidana penjara dan pidana 
+denda yang bersifat komulatif membuat terbatasnya hakim dalam menjatuhkan 
+putusan. Padahal seorang hakim itu tidak bertindak sebagai robot, akan tetapi 
+bertindak sebagai manusia.  Dalam konteks hakim sebagai manusia menurut Cossio, 
+ia dituntut mengambil keputusan yang sesuai dengan prinsip-prinsip keadilan dan 
+kepentingan umum. Dengan formulasi kebijakan sanksi pidana yang sifatnya 
+komulatif akan membuat hakim justru akan lebih condong untuk bertindak sebagai 
+ 
+58Igom, “Kebijakan Legislatif,” 76. 
+59Republik Indonesia, Undang-Undang Nomor 35 Tahun 2009 tentang Narkotika. 
+60Ibid. 
+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
+Tingginya Kelebihan Kapasitas di Lembaga Pemasyarakatan 
+306 
+Al-Mizan Vol. 18 No. 2, 2022    ISSN 1907-0985    E-ISSN 2442-8256 
+ 
+robot karena harus mengikuti aturan yang ada dalam peraturan perundang-
+undangan.61   
+Adapun dalam Undang-Undang Nomor 21 Tahun 2007 tentang 
+Pemberantasan Tindak Pidana Perdagangan Orang juga demikian, pada Bab II 
+Tindak Pidana Perdagangan Orang pasal 2 sampai pasal 9 mengatur sanksi pidana 
+penjara dan denda. Pada Bab III tentang Tindak Pidana Lain yang berkaitan dengan 
+tindak pidana perdagangan orang pada pasal 19 sampai pasal 2462 juga mengatur 
+tentang penerapan sanksi pidana penjara dan denda. Kedua bab tersebut yang 
+mengatur tentang tindak pidana 100% menerapkan sanksi pidana penjara dan denda 
+yang bersifat komulatif, sehingga dalam undang-undang ini kebijakan formulasi 
+penerapan sanksi pidana masih sama dengan UU Narkotika yang sifatnya pidana 
+komulatif. Artinya bahwa kedua undang-undang ini masih menjunjung tinggi sanksi 
+pidana penjara sebagai ujung tombak dalam penjatuhan sanksi terhadap suatu delik 
+tanpa memperhatikan karakter delik.  
+Jadi kebijakan formulasi sanksi pidana penjara yang masih menjadi sanksi 
+favorit bagi perumus undang-undang, baik dalam KUHP maupun di luar KUHP 
+berimplikasi pada terjadinya kelebihan kapasitas di Lapas. Kurangnya pidana 
+alternatif yang diatur menjadi salah satu hal yang harus diperhatikan oleh perumus 
+kebijakan pemidanaan. Jumlah narapidana penghuni Lapas secara nasional terbanyak 
+ada pada kejahatan narkotika. Bagaimana tidak, UU Narkotika menjadikan pidana 
+penjara sebagai pidana favorit untuk menghukum pelaku kejahatan narkotika, 
+sehingga hal tersebut menjadi salah satu faktor penyebab terjadinya kelebihan 
+kapasitas di Lapas. 
+ 
+E. Kesimpulan 
+ 
+Eksistensi penjara dalam perpektif hukum pidana Islam mendapat respon 
+yang berbeda di antara kaum ulama. Ada beberapa hadis yang dianggap mendasari 
+ 
+61Bernand L. Tanya, Yoan N. Simanjuntak dan Markus Y. Hage, Teori Hukum: Strategi 
+Tertib Manusia Lintas Ruang dan Generasi (Yogyakarta: Genta Publishing, 2018), 180-181.  
+62Republik Indonesia, Undang-Undang Nomor 21 Tahun 2007 tentang Pemberantasan 
+Tindak Pidana Perdagangan Orang. 
+
+ 
+ 
+Khairil Ikhsan 
+ 
+http://journal.iaingorontalo.ac.id/index.php/am  
+307 
+ 
+penerapan pidana penjara bagi pelaku kejahatan yang biasanya disebut dengan al-
+sijnu (penjara). Namun pada prinsipnya Islam memandang bahwa penjara adalah 
+salah satu jenis dari hukuman ta’zir yang kadarnya ditetapkan oleh khalifah, dalam 
+hal ini pemerintah. 
+ 
+Ada relevansi antara terjadinya kelebihan kapasitas di Lapas dengan 
+formulasi kebijakan yang ada dalam undang-undang hukum pidana. Terjadinya 
+kelebihan kapasitas di Lapas tidaklah terlepas dari kebijakan hukum pidana yang 
+banyak menggunakan pidana penjara sebagai ancaman terhadap kejahatan dan 
+menjadi sanksi primadona dalam formulasi kebijakan sanksi pemidanaan. 
+ 
+Pemerintah khususnya lembaga legislasi harusnya dalam perumusan 
+kebijakan formulasi dalam undang-undang hukum pidana yang dilakukan lebih peka 
+terhadap permasalahan yang ada. Jangan hanya berfokus pada paradigma hukum 
+pidana sebagai pembalasan, namun lebih kepada paradigma pembinaan sehingga 
+sanksi pidana khususnya pidana penjara bukanlah menjadi sanksi primadona serta 
+sifat sanksi yang ada dalam formulasi kebijakan tersebut tidak komulatif melainkan 
+alternatif.  
+ 
+Daftar Pustaka 
+Adam, Panji. “Eksistensi Sanksi Pidana Penjara Dalam Jarimah Ta’zir.” Tahkim: 
+Jurnal Peradaban dan Hukum Islam, Vol. 2, No. 2 (2019); 51. 
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+Angkasa. “Over Capacity Narapidana di Lembaga Pemasyarakatan, Faktor 
+Penyebab, Implikasi Negatif, Serta Solusi dalam Upaya Optimalisasi 
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+Arief, Barda Nawawi. Kebijakan Legislatif Dalam Penaggulangan Kejahatan Dengan 
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+
+ 
+ 
+Relevansi antara Penetapan Pidana Penjara dalam Kebijakan Formulasi dengan 
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+ 
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diff --git a/corpus/law/text/cdb8fdde352d539e.txt b/corpus/law/text/cdb8fdde352d539e.txt
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+Correctional Institution’s Construction In The Death-Convicted Supervision
+
+The death row inmate becomes one of the members of the Correctional Institution or Lembaga Pemasyarakatan (Lapas) when the convict is waiting for the execution time or if the convict is still making a legal effort. This raises problems from the aspect of the rules, which form the basis of prisons' authority in the guidance of death row inmates because the provisions on the development of capital punishment do not have specific regulations. The problem in this research is the urgency of guiding death convicts in prison; how it is implemented, and is there any difference in the guidance for death row inmates in prison; construction or ideal model of guidance for death row inmates in prison; as a result of the law, guidance on death row inmates is carried out in Lapas. This study uses a normative and empirical juridical approach with data collection methods using literature and field studies. The study results show that the prison's guidance is essential considering that the person concerned will be executed, so assistance and supervision are needed to prevent unwanted things, for example, committing a crime, suicide, or experiencing depression. Death row convicts follow other prisoners' proper guidance, provide useful activities to death convicts, and provide the death convicts with the rights. The superior construction for the development of capital punishment is contained in the Criminal Code Draft or Rancangan Kitab Undang-Undang Hukum Pidana (RKUHP), which makes capital punishment an alternative punishment, provides a probation period of 10 years for the death row inmates, the superior construction of both the place and the material for its guidance must be distinguished from those sentenced to other types of crimes. As a result of the law, there is no certainty of guidance for death row inmates in prison because there are no specific regulations regarding death penalty services.
\ No newline at end of file
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+PRELIMINARY PRINT 
+Volume 608 U. S. Part 2 
+Pages 511–530 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 2, 2026 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2025 
+511 
+Syllabus 
+ALLEN, ALABAMA SECRETARY OF STATE, et al. v. 
+MILLIGAN, et al. 
+on application for stay 
+No. 25A1314. 
+Decided June 2, 2026* 
+In Louisiana v. Callais, 608 U. S. 85, to resolve the tension between vote-
+dilution claims and the colorblind Constitution, the Court updated the 
+standards for § 2 liability under Thornburg v. Gingles, 478 U. S. 30. As 
+relevant here, the Court held that for plaintiffs to satisfy the frst Gin­
+gles precondition, a plaintiff's alternative map “must meet all the State's 
+legitimate districting objectives” “just as well” as the State's own map. 
+Callais, 608 U. S., at 119 (emphasis added). Those objectives include 
+“any other goal not prohibited by the Constitution.” Ibid. A plaintiff 
+also “cannot use race as a districting criterion” in preparing the alterna­
+tive map.” Ibid. And, to prove the second and third Gingles precondi­
+tions, a plaintiff “must provide an analysis that controls for party affli­
+ation” and “show that voters engage in racial bloc voting that cannot be 
+explained by partisan affliation.” 608 U. S., at 119–120. After Cal­
+lais, the Court vacated District Court injunctions that prevented Ala­
+bama from using a congressional map that it enacted in 2023. See 
+Allen v. Caster, 608 U. S. –––. Two weeks after the injunctions were 
+vacated, the District Court entered another injunction on largely the 
+same grounds. State offcials immediately applied to this Court for a 
+stay of that injunction. 
+Held: At this preliminary stage, the State has shown that it is entitled to 
+interim relief from the District Court's injunction. The State is likely 
+to succeed on the merits as to both the intentional vote dilution and § 2 
+claims. As to the intentional vote-dilution claim, the District Court did 
+not heed the presumption of legislative good faith because it interpreted 
+the State's legal disagreement with the court's earlier remedial order as 
+proof of discriminatory animus. And, as to both claims, the District 
+Court likely erred because it found a violation even though the plaintiffs' 
+alternative map would not perform just as well as to the State's consti­
+tutionally permissible criteria of keeping together a community of inter­
+est and avoiding the pairing of incumbents. The District Court also 
+failed to follow Callais' instruction that the mere fact that voters of 
+*Together with No. 25A1315, Allen, Alabama Secretary of State, et al. 
+v. Singleton, et al., and No. 25A1316, Allen, Alabama Secretary of State, 
+et al. v. Caster, et al., also on applications for stay. 
+
+512 
+ALLEN v. MILLIGAN 
+Per Curiam 
+different races vote for different parties is not relevant to proving ra­
+cially polarized voting patterns. See 608 U. S., at 119–120. The State 
+has also made a strong showing of irreparable harm and that the equi­
+ties and public interest favor it. The Court has repeatedly cautioned 
+that lower federal courts should not “alter the election rules on the 
+eve of an election.” Republican National Committee v. Democratic 
+National Committee, 589 U. S. 423, 424 (per curiam). Here, the Dis­
+trict Court interposed itself into Alabama's ongoing efforts to conduct 
+its imminent 2026 congressional elections. Its view that conducting the 
+elections under court-imposed maps would be more convenient for the 
+State was not a valid justifcation for that intervention. 
+Per Curiam. 
+In Louisiana v. Callais, 608 U. S. 85 (2026), to resolve the 
+tension between vote-dilution claims under § 2 of the Voting 
+Rights Act of 1965 and our colorblind Constitution, we up­
+dated the standards for § 2 liability established by Thorn­
+burg v. Gingles, 478 U. S. 30 (1986). 
+Under Gingles, to prove a § 2 violation, a plaintiff must 
+first establish three preconditions. First, the minority 
+group must be large and geographically compact enough to 
+be a majority in a reasonably confgured congressional dis­
+trict, meaning that the district “comports with traditional 
+districting criteria.” Callais, 608 U. S., at 98 (internal quo­
+tation marks omitted). Second, the minority group must be 
+politically cohesive. Third, the majority group must vote 
+enough as a bloc to defeat the minority group's preferred 
+candidate. Ibid. After establishing those three precondi­
+tions, the plaintiff must prove that the political process was 
+not equally open to minority voters based on the totality of 
+the circumstances. Ibid. 
+Callais updated these standards. As relevant here, we 
+held that for plaintiffs to satisfy the frst Gingles precondi­
+tion, a plaintiff's alternative map “must meet all the State's 
+legitimate districting objectives” “just as well” as the State's 
+own map. 608 U. S., at 119 (emphasis added). Those legiti­
+mate districting objectives, we held, include “the State's 
+specifed political goals” and “any other goal not prohibited 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 511 (2026) 
+513 
+Per Curiam 
+by the Constitution.” Ibid. A plaintiff also “cannot use 
+race as a districting criterion” in preparing the alternative 
+map. Ibid. To prove the second and third preconditions, a 
+plaintiff “must provide an analysis that controls for party 
+affliation” and “show that voters engage in racial bloc voting 
+that cannot be explained by partisan affliation.” Id., at 
+119–120. These updates, we held, were necessary to avoid 
+requiring congressional maps under § 2 that would be uncon­
+stitutional racial gerrymanders. 
+After Callais, we vacated District Court injunctions that 
+prevented the State of Alabama from using a congressional 
+map that it enacted in 2023. See Allen v. Caster, 608 
+U. S. ––– (2026). The District Court had held that the 
+State's map violated § 2 because it had only one district in 
+which black voters were a majority and did not include 
+an additional “[b]lack-opportunity” district. Singleton v. 
+Allen, 782 F. Supp. 3d 1092, 1114, 1309 (ND Ala. 2025) (per 
+curiam). The District Court also concluded that the 2023 
+map violated the Fourteenth Amendment because it consti­
+tuted a deliberate “refus[al] to satisfy the remedial require­
+ments” it previously imposed and an attempt to avoid a fu­
+ture judgment requiring the same remedy. Id., at 1355. 
+Two weeks after we vacated its injunction, the District 
+Court entered another injunction on largely the same 
+grounds. State offcials immediately applied to this Court 
+for a stay of this injunction. 
+At this preliminary stage, the State has shown that it is 
+entitled to interim relief from the District Court's injunction. 
+See Abbott v. League of United Latin American Citizens, 
+607 U. S. –––, ––– – ––– (2025). The State is likely to succeed 
+on the merits as to both claims. As to intentional vote dilu­
+tion, the District Court did not heed the presumption of leg­
+islative good faith, see Alexander v. South Carolina State 
+Conference of NAACP, 602 U. S. 1, 10 (2024), because it in­
+terpreted the State's legal disagreement with the court's ear­
+lier remedial order as proof of discriminatory animus. Cf. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+514 
+ALLEN v. MILLIGAN 
+Per Curiam 
+Abbott v. Perez, 585 U. S. 579, 608–609 (2018). And, as to 
+both claims, the District Court's analysis departed from Cal­
+lais. Under Callais, the District Court was required to 
+deny relief unless the plaintiffs' alternative map performed 
+“just as well” with respect to all of the State's constitution­
+ally permissible districting criteria. 608 U. S., at 119. Yet, 
+the District Court found a violation even though the plain­
+tiffs' alternative map would not perform just as well as to 
+the State's constitutionally permissible criteria of keeping to­
+gether the Gulf Coast community of interest and avoiding 
+the pairing of incumbents. The District Court also failed to 
+follow our instruction in Callais that the mere fact that vot­
+ers of different races vote for different parties is not relevant 
+to proving racially polarized voting patterns. See id., at 
+119–120. 
+The State has also made a strong showing of irreparable 
+harm and that the equities and public interest favor it. We 
+have repeatedly cautioned that lower federal courts should 
+not “alter the election rules on the eve of an election.” Re­
+publican National Committee v. Democratic National Com­
+mittee, 589 U. S. 423, 424 (2020) (per curiam). Here, the 
+District Court interposed itself into Alabama's ongoing ef­
+forts to conduct its imminent 2026 congressional elections 
+under maps that its elected representatives selected. Its 
+view that conducting the elections under court-imposed 
+maps would be more convenient for the State was not a valid 
+justifcation for that intervention. While federal courts 
+should not impose changes close to an election, ibid., States 
+are free to decide for themselves whether last-minute 
+changes to an election are in their best interests. 
+The applications for stay presented to Justice Thomas 
+and by him referred to the Court are granted. The May 26, 
+2026, order of the United States District Court for the 
+Northern District of Alabama, case Nos. 2:21–cv–1530 and 
+2:21–cv–1291 is stayed pending the timely docketing of the 
+appeal in this Court. Should the jurisdictional statement be 
+timely fled, this order shall remain in effect pending this 
+
+Cite as: 608 U. S. 511 (2026) 
+515 
+Sotomayor, J., dissenting 
+Court's action on the appeal. If the appeal is dismissed, or 
+the judgment affrmed, this order shall terminate automati­
+cally. In the event jurisdiction is noted or postponed, this 
+order will remain in effect pending the sending down of the 
+judgment of this Court. The May 26, 2026, order of the 
+United States District Court for the Northern District of 
+Alabama, case No. 2:21–cv–1536, is stayed pending the timely 
+fling of a petition for a writ of certiorari. Should the peti­
+tion for a writ of certiorari be denied, this stay shall termi­
+nate automatically. In the event the petition for a writ of 
+certiorari is granted, the stay shall terminate upon the send­
+ing down of the judgment of this Court. 
+It is so ordered. 
+Justice Sotomayor, with whom Justice Kagan and 
+Justice Jackson join, dissenting. 
+Before the Court are two paths. Down one lies an orderly 
+election, held under a tried-and-tested congressional map 
+that protects Black Alabamians' right to vote and with which 
+all voters, elections offcials, and candidates alike are famil­
+iar. Down the other lies a chaotic election, held under a 
+never-before-used congressional map that intentionally dis­
+criminates against Black Alabamians, that Alabama adopted 
+in unashamed defance of a prior court order directly af­
+frmed by this Court, and that will require offcials to change 
+the voter registrations of hundreds of thousands of voters in 
+just days at best, a task that Alabama previously repre­
+sented would take months. 
+The majority chooses the second path and disregards both 
+democratic values and the rule of law. 
+I respectfully 
+dissent. 
+I 
+This is now the third time these cases have come before 
+the Court. See Merrill v. Milligan, 595 U. S. 1197 (2022); 
+Allen v. Milligan, 599 U. S. 1 (2023); Allen v. Caster, 608 
+Page Proof Pending Publication
+
+516 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+U. S. ––– (2026). Each turn reveals just how unconscionable 
+the Court's action is today. 
+This saga began in 2021, after Alabama adopted a new 
+congressional map following the 2020 census. That map had 
+only one majority-Black congressional district. Black Ala­
+bamians challenged this frst map, alleging that it violated 
+§ 2 of the Voting Rights Act, 52 U. S. C. § 10301. A three-
+judge District Court agreed, holding that the map likely had 
+a racially discriminatory effect and violated the Voting 
+Rights Act by diluting Black Alabamians' voting strength. 
+It therefore ordered Alabama to adopt “a congressional re­
+districting plan that include[d] either an additional majority-
+Black congressional district, or an additional district in 
+which Black voters otherwise have an opportunity to elect a 
+representative of their choice.” Singleton v. Merrill, 582 
+F. Supp. 3d 924, 936 (ND Ala. 2022). The latter is commonly 
+referred to as an “opportunity district.” 
+That injunction prompted the frst trip to this Court. At 
+the time, Alabama claimed to be in a predicament. The Dis­
+trict Court had issued its injunction in January 2022, roughly 
+four months ahead of Alabama's primary election in May 
+2022. By Alabama's telling, four months was not enough 
+time to change congressional maps, so it sought a stay of the 
+injunction from this Court, arguing that “this overhaul of 
+Alabama's congressional map at this late hour would require 
+the last-minute reassignment of hundreds of thousands of 
+voters to new districts.” Application in Merrill v. Milli­
+gan, O. T. 2021, No. 21A375, p. 38 (Merrill Application). 
+This “chaos,” the State argued, would harm “not only the 
+State,” but also “voters and candidates across the State.” 
+Ibid. 
+This Court granted the stay. Merrill, 595 U. S., at 1197. 
+It also agreed to review the District Court's order and rem­
+edy. See ibid. Two Members of this Court expressed con­
+cern that “[t]he District Court's order would require heroic 
+efforts by . . . state and local authorities in the next few 
+weeks—and even heroic efforts likely would not be enough 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 608 U. S. 511 (2026) 
+517 
+Sotomayor, J., dissenting 
+to avoid chaos and confusion.” Id., at 1199 (Kavanaugh, J., 
+joined by Alito, J., concurring). Thus, this Court allowed 
+the map that the District Court held unlawful to govern the 
+2022 election. 
+Then, 18 months later, after full merits briefng and argu­
+ment, this Court affrmed the District Court's order and 
+fnding of discriminatory effect, concluding that the District 
+Court had “faithfully applied our precedents and correctly 
+determined that” Alabama's congressional map unlawfully 
+discriminated against Black Alabamians. Allen, 599 U. S., 
+at 23. As to the District Court's ordered remedy, the Court 
+rejected Alabama's objections that drawing a second oppor­
+tunity district would offend the Constitution, writing that “a 
+faithful application of our precedents and a fair reading of 
+the record before” the Court “d[id] not bear . . . out” the 
+State's objections. Id., at 42. 
+On remand, and under the District Court's order that this 
+Court had just affrmed, Alabama was given the opportunity 
+to remedy the Voting Rights Act violation. Alabama did not 
+rise to the occasion. Rather than adopt a map with the sec­
+ond district that this Court had just held was required to 
+remedy unlawful racial discrimination, Alabama doubled 
+down, adopting the 2023 Redistricting Plan, which also lacked 
+a second opportunity district. Plaintiffs then amended their 
+complaints in these cases to challenge the 2023 Redistricting 
+Plan, and the District Court held an 11-day trial on the legal­
+ity of the new map. It heard testimony from 51 witnesses, 
+received almost 800 exhibits, and considered many volumes 
+of written submissions. At the end of that trial, the District 
+Court concluded once again that Alabama's failure to draw a 
+second opportunity district had a discriminatory effect. It 
+then found that Alabama had not merely “refuse[d] to sat­
+isfy” its prior order to remedy racially discriminatory vote 
+dilution, but in fact had gone out of its way to make it 
+“mathematically impossible” to do so. Singleton v. Allen, 
+782 F. Supp. 3d 1092, 1355 (ND Ala. 2025) (per curiam). 
+“[W]ith great reluctance and dismay and even greater re­
+
+Page Proof Pending Publication
+518 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+straint,” the District Court concluded that Alabama had vio­
+lated the Fourteenth Amendment by entrenching racially 
+discriminatory vote dilution and permanently enjoined Ala-
+bama's 2023 Redistricting Plan. Id., at 1118. The District 
+Court instituted a remedial map drawn without any refer­
+ence to race. This map governed the 2024 election. 
+Alabama then fled its second appeal to this Court. While 
+that appeal was pending, this Court decided Louisiana v. 
+Callais, 608 U. S. 85 (2026). Although Callais signifcantly 
+changed the test for discriminatory-effect vote-dilution 
+claims under § 2 of the Voting Rights Act, it also purported 
+not to “overrul[e] Allen.” Id., at 125. Nor did Callais alter 
+the analysis for intentional-discrimination claims under the 
+Fourteenth Amendment. Still, the Court vacated the Dis­
+trict Court's injunction in these cases and remanded for fur­
+ther consideration in light of Callais. Caster, 608 U. S., 
+at ––– – –––. That vacatur restored Alabama's 2023 Re­
+districting Plan just one week before Alabama's primary 
+election while voting was already under way. Id., at ––– 
+(Sotomayor, J., dissenting). 
+After this Court's order, Alabama announced that it in­
+tended to use the 2023 Redistricting Plan for the upcoming 
+election and took the unusual step of splitting its congres­
+sional primary. In the three congressional districts unaf­
+fected by the change in congressional map, the May 19 pri­
+mary election went ahead as scheduled. In the other four 
+districts, voters still cast their ballots. Their votes for Con­
+gress, however, did not count. Instead, Alabama's Legisla­
+ture passed a law permitting the Governor to call a special 
+primary election in the four congressional districts whose 
+lines changed as a result of this Court's order, and the Gover­
+nor set that election for August 11. 
+Back in the District Court, plaintiffs immediately sought 
+an emergency hearing following this Court's order. The 
+District Court held one, and less than three weeks later, it 
+issued a preliminary injunction after “fully revisit[ing] the 
+merits of each claim” brought by plaintiffs. 833 F. Supp. 3d 
+
+Cite as: 608 U. S. 511 (2026) 
+519 
+Sotomayor, J., dissenting 
+1222, 1246 (2026). In a thorough 78-page opinion, it ex­
+plained that its prior decision on intentional racial discrimi­
+nation was “undisturbed by Callais” and that, even after 
+“draw[ing] every inference . . . in the Legislature's favor,” 
+the record compelled the conclusion that the State intention­
+ally entrenched the racial discrimination that the District 
+Court previously found and this Court affrmed. Id., at 
+1247, 1248. From here, the District Court reinstated the 
+remedial map that this Court vacated. 
+II 
+Alabama has now returned to this Court again, seeking a 
+stay of the District Court's second preliminary injunction in 
+these cases. The Court should deny Alabama's request. 
+Alabama has not shown that the District Court erred in hold­
+ing that plaintiffs were likely to succeed on their Fourteenth 
+Amendment claim. See Hollingsworth v. Perry, 558 U. S. 
+183, 190 (2010) (per curiam). Furthermore, the State has 
+no legitimate interest in enforcing an unconstitutional map, 
+while vast harms will likely arise from upending the status 
+quo, sowing chaos in Alabama, and rewarding Alabama's 
+gamesmanship. 
+A 
+To prevail on their Fourteenth Amendment challenge, 
+plaintiffs were required to show that Alabama enacted the 
+2023 Redistricting Plan “ `as a purposeful device to minimize 
+or cancel out the voting potential of racial or ethnic minori­
+ties.' ” Alexander v. South Carolina State Conference of 
+the NAACP, 602 U. S. 1, 38 (2024) (quoting Miller v. John­
+son, 515 U. S. 900, 911 (1995)). That claim has two elements: 
+discriminatory effect and discriminatory purpose. Alexan­
+der, 602 U. S., at 39. Alabama has not shown that the Dis­
+trict Court erred on either element.1 
+1 Because the District Court held that its post-trial fnding of inten­
+tional discrimination was “undisturbed by Callais,” 833 F. Supp. 3d 
+1222, 1247 (2026), and made substantially similar findings in its 
+Page Proof Pending Publication
+
+520 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+To begin, this Court has already held that the 
+discriminatory-effect element is satisfied in these cases. 
+Again, following the 2020 census, Alabama drew a congres­
+sional map with a single majority-Black district. The Dis­
+trict Court concluded that the map violated § 2 of the Voting 
+Rights Act, and this Court “agree[d].” Allen, 599 U. S., at 
+19. Callais later changed the standard for § 2 liability, but 
+Callais also made clear that it did “not overrul[e] Allen.” 
+608 U. S., at 121–122, 125. As I have explained, “[t]hese 
+cases are, of course, Allen,” so if the majority meant what it 
+said in Callais and “Allen is good law . . . , then it must be 
+good law here.” Caster, 608 U. S., at ––– (dissenting opinion). 
+“This Court's fnding of racially discriminatory vote dilution is 
+an inextricable, permanent feature of this case,” id., at –––, and 
+it establishes that, as a matter of law, Alabama's failure to 
+draw a second opportunity district has a discriminatory effect. 
+Next, the District Court did not clearly err when conclud­
+ing that Alabama acted with discriminatory purpose. The 
+plaintiffs were required to demonstrate that race was “a mo­
+tivating factor” in the adoption of the 2023 Redistricting 
+Plan; they were not required to prove that it was the “sol[e],” 
+“ `dominant,' ” or even “ `primary' ” motivation. Arlington 
+Heights v. Metropolitan Housing Development Corp., 429 
+U. S. 252, 265–266 (1977); see Mobile v. Bolden, 446 U. S. 55, 
+66–74 (1980) (plurality opinion) (applying Arlington Heights 
+to claim for intentional vote dilution). The District Court's 
+fnding of discriminatory intent is reviewed for clear error, 
+meaning that its factual determination “must govern” if it is 
+“ `plausible' in light of the full record.” Cooper v. Harris, 
+581 U. S. 285, 293 (2017)). 
+The District Court's account of the evidence here is more 
+than plausible. The record is bereft of evidence suggesting 
+that Alabama took seriously this Court's fnding of discrimi­
+natory vote dilution in Allen. Speaker of the Alabama 
+preliminary-injunction opinion, I discuss the District Court's post-trial and 
+preliminary-injunction opinions together. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 608 U. S. 511 (2026) 
+521 
+Sotomayor, J., dissenting 
+House of Representatives Nathaniel Ledbetter put it bluntly: 
+“ `If you think about where we were, the Supreme Court rul­
+ing [in Allen] was fve to four. So there's just one judge 
+that needed to see something different.' ” Singleton, 782 
+F. Supp. 3d, at 1348. That admission, the District Court ob­
+served, suggests “that Speaker Ledbetter was not focused 
+on trying to remedy likely vote dilution” when the Alabama 
+Legislature passed the 2023 Redistricting Plan. Ibid. 
+The record instead supports the understanding that Ala­
+bama was focused on pulling out all the stops to “entrench” 
+the dilution of Black votes found by the District Court and 
+affrmed by this Court. Id., at 1345. Most importantly, the 
+events leading up to the adoption of the 2023 Redistricting 
+Plan were “replete with sharp departures from (and some 
+outright conficts with) Alabama's traditional districting 
+guidelines,” as the State fashioned redistricting criteria from 
+whole cloth that it had never previously employed. Id., at 
+1343; see id., at 1343–1344. The State, the District Court 
+found, also conjured legislative fndings out of “thin air,” id., 
+at 1345, in “the dead of night,” id., at 1117, that “exalt[ed]” 
+certain White communities while “remaining silent on the 
+heritage of all other communities of interest in Alabama (in­
+cluding the Black Belt),” id., at 1344. The District Court 
+observed that this “constellation of departures from the 
+norm,” id., at 1345, created a set of redistricting rules that 
+made it “mathematically impossible to create [the] second op­
+portunity district” that Alabama had been ordered to draw, 
+id., at 1340; see id., at 1356–1357. In short, the record re­
+fects “that Alabama made an intentional choice to . . . en­
+trench, rather than remedy and uproot, the racial discrimina­
+tion that the District Court had previously found and that 
+this Court had affrmed.” Caster, 608 U. S., at ––– (Soto­
+mayor, J., dissenting). 
+Furthermore, there is minimal evidence that partisanship 
+entered the calculus. The State's redistricting criteria omit­
+ted any mention of partisanship. 833 F. Supp. 3d, at 1255. 
+
+522 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+Neither of the legislators who led the redistricting process 
+testifed that they drew the 2023 redistricting plan for parti­
+san reasons. Ibid. Neither legislator gave any weight to 
+partisan interests, despite being urged to do so by former 
+Speaker of the House Kevin McCarthy. Ibid. Moreover, 
+although the State professed to be concerned with protecting 
+incumbents, the only evidence in the record on this point 
+shows that this interest was not partisan, but extended to 
+all incumbents, including Terri Sewell, the State's only in­
+cumbent Democrat as of 2023. Ibid. The thin factual rec­
+ord is especially notable given that this round of redistricting 
+took place four years after Rucho v. Common Cause, 588 
+U. S. 684 (2019), in which this Court held that federal courts 
+cannot hear challenges to partisan gerrymanders. Id., at 
+718. That means that the Alabama Legislature had every 
+incentive to dress up its redistricting effort in partisan garb. 
+It is telling that it barely managed a fg leaf. 
+The District Court also more than adequately accounted 
+for the presumption of legislative good faith. Contra, ante, 
+at 513–514. That principle “directs district courts to draw 
+the inference that cuts in the legislature's favor when con­
+fronted with evidence that could plausibly support multiple 
+conclusions.” Alexander, 602 U. S., at 10. In its post-trial 
+opinion, the District Court did just that and more. “[I]n 
+extreme service of the presumption of . . . good faith,” the 
+District Court assumed the best of Alabama's Legislature 
+and “discount[ed] [its] concerns about” the “historical back­
+ground and sequence of events” leading up to the adoption 
+of the 2023 Redistricting Plan. Singleton, 782 F. Supp. 3d, 
+at 1346. 
+Similarly, when it reaffirmed its intentional-
+discrimination holding in its preliminary-injunction order, 
+the District Court “dr[e]w every inference [it could] in 
+the Legislature's favor, [made] no effort to read anyone's 
+mind, and accuse[d] no legislator of racism.” 833 F. Supp. 
+3d, at 1248. Those were not empty promises: The District 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 511 (2026) 
+523 
+Sotomayor, J., dissenting 
+Court declined to consider “Alabama's history of discriminat­
+ing against Black Alabamians,” even though it is “well­
+documented,” to “give the Legislature every beneft of the 
+doubt.” Ibid. It also gave “no weight” to contemporane­
+ous statements from minority legislators regarding the legis­
+lature's intentions. Id., at 1253, n. 15. 
+The reason the District Court found intentional discrimi­
+nation even after affording such deference to the Alabama 
+Legislature is simple: The record is crystal clear. Even if 
+Alabama may have unintentionally drawn the frst racially 
+discriminatory map, when it later adopted redistricting crite­
+ria that made it mathematically impossible to remedy racial 
+discrimination, the District Court drew the obvious (and cer­
+tainly not implausible) inference that Alabama intended to 
+discriminate. If the District Court clearly erred by doing 
+so, then there is no realistic case in which the presumption 
+of legislative good faith can ever be rebutted. 
+The majority's order grapples with virtually none of this. 
+Indeed, it does not even acknowledge that the District 
+Court's discriminatory-intent fnding is reviewed for clear 
+error. Much of its reasoning rests on its assertion that, even 
+as to the plaintiffs' Fourteenth Amendment claim, “the Dis­
+trict Court's analysis departed from Callais.” Ante, at 514. 
+That is wrong twice over. First, Callais “said not a word 
+about the standard for Fourteenth Amendment intentional-
+discrimination claims.” Caster, 608 U. S., at ––– (Soto­
+mayor, J., dissenting). Instead, Callais was focused on 
+changing the Court's law on “exactly what § 2 of the Voting 
+Rights Act demands,” not what the Constitution demands. 
+608 U. S., at 109. Second, Callais said that its newly fash­
+ioned test for § 2 disparate-impact claims is not an intent-
+based test. It acknowledged that § 2 “does not demand a 
+fnding of intentional discrimination.” Id., at 113. It also 
+denied Justice Kagan's charge that the majority's new test 
+was an intent test in all but name. Id., at 125. It is hard to 
+Page Proof Pending Publication
+
+524 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+see how the District Court's fnding of discriminatory intent 
+under the Fourteenth Amendment could have departed from 
+an opinion that purported to say nothing about how to fnd 
+discriminatory intent under the Fourteenth Amendment. 
+The Court's apparently oblivious insistence to the contrary 
+today cannot be squared with what Callais said on its face 
+just over one month ago. See id., at 151, n. 5 (Kagan, J., 
+dissenting) (“[T]he majority closes its opinion by suggesting 
+it is not requiring a vote-dilution plaintiff to present evi­
+dence of `discriminatory intent.' Which, if true, would be 
+welcome news” (citation omitted)). 
+B 
+In addition to being wrong on the merits, the Court's deci­
+sion inficts two grave harms on the public. It debases the 
+democratic process by upending Alabama's entire election in 
+the name of permitting Alabama to discriminate against 
+Black Alabamians. It also corrodes the rule of law by re­
+warding Alabama's gamesmanship and outright defance of 
+court orders. 
+1 
+First, the Court's decision will cause havoc. The so-called 
+“Purcell principle” “generally holds that, because late-
+breaking changes to election procedures can cause chaos, fed­
+eral courts should hesitate before exercising their equitable 
+discretion to alter state election laws close to an election.” 
+Malliotakis v. Williams, 607 U. S. –––, ––– (2026) (Soto­
+mayor, J., dissenting). Today's decision tramples on that 
+principle of restraint. 
+As the District Court explained, the path of least change 
+in Alabama is keeping the District Court's remedial plan in 
+place. According to Alabama Director of Elections Jeff 
+Elrod, all voters in Alabama are currently assigned in 
+county-level voter rolls to congressional districts based on 
+the remedial map that the District Court previously ordered 
+and that the State used for the 2024 election cycle. 2 App. 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 511 (2026) 
+525 
+Sotomayor, J., dissenting 
+135. To run an election using the remedial map, then, the 
+State need not make any changes to its voter rolls or change 
+the status quo. 
+To switch to the 2023 Redistricting Plan now, however, 
+county elections offcials will have to reassign hundreds of 
+thousands of voters across the State to new congressional 
+districts. Three of Alabama's counties will be particularly 
+hard hit because they are split across two congressional dis­
+tricts. Id., at 121–122. These counties have about 600,000 
+registered voters between them (roughly 15% of the State's 
+total number of registered voters).2 
+Elrod testifed below that county elections offcials would 
+have to reassign those 600,000 voters manually. “The sys­
+tem,” he explained, “is not automatic” and “requires manual 
+input” from elections offcials who must “physically manually 
+interface with the system.” Id., at 146. Reassigning vot­
+ers in precincts split across two districts is particularly com­
+plicated, he continued, as it “cannot be done with a simple 
+click” and instead requires offcials to check street-level data 
+to determine how to assign individual voters. Id., at 156– 
+157. Worse yet, Elrod warned that reassigning voters re­
+quires using complicated computer software that offcials 
+must be trained to use, as “most of the counties' registrars 
+are not tech savvy” and “registrars are the only ones who 
+can make the changes . . . to a voter's record.” Id., at 147– 
+148. This process also requires many prechecks and back-
+end quality control steps, all of which add to its time-inten­
+sive nature. Id., at 140. 
+Given these complexities, the process for reassigning vot­
+ers typically takes months. Alabama knows (or at least 
+knew) this. In 2021, at the frst preliminary-injunction 
+stage in these cases, Alabama fled a declaration from Elrod's 
+predecessor representing that voter reassignment “can take 
+2 Alabama Secretary of State, Voter Registration Statistics—2026, 
+https://www.sos.alabama.gov/sites/default/files/election-data/2026-05/ 
+ALVR-2026.xlsx (archived at https://perma.cc/6QHZ-7GFC). 
+Page Proof Pending Publication
+
+526 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+a county's Board of Registrars 3 to 4 months to accomplish.” 
+ECF Doc. 82–7, p. 4.3 
+For example, after the Alabama Leg­
+islature redrew its state legislative districts in 2017 following 
+litigation, “local election offcials struggled to complete the 
+district assignment process in up to 4 months.” Ibid. 
+Here, county offcials do not have four months. When Al­
+abama fled these applications on May 27, they had just seven 
+days. Elrod explained that voter rolls were locked through­
+out the State following the State's May 19 primary election, 
+meaning that county offcials could not reassign any voters 
+to their new congressional districts under the 2023 Redis­
+tricting Plan for the August 11 special primary election. 
+ECF Doc. 530–1, p. 17. The rolls were unlocked on May 27, 
+but they are set to lock again today, June 2, ahead of Ala-
+bama's primary runoff election on June 16. As a result, 
+county offcials in the three most heavily impacted counties 
+in Alabama had at best just seven days to reassign 600,000 
+voters by hand. The two smaller counties, which are to­
+gether responsible for reassigning 100,000 voters, each have 
+just three elections offcials who can make these changes. 
+2 App. 122. Mistakes will inevitably occur, as overworked 
+elections offcials sprint around the clock to make all the nec­
+essary changes. Even then, the offcials may fall short. As 
+far as Elrod is aware, no county in Alabama that was split 
+under a redistricting plan has ever managed to complete 
+voter reassignment in just seven days. See id., at 181.4 
+3 ECF citations are to documents fled in the District Court in Milligan 
+v. Allen, No. 2:21–cv–1530 (ND Ala.). 
+4 Elrod testifed that the voter rolls are locked by a third-party vendor 
+immediately before and during an election. See 2 App. 136–140. The 
+rolls remain locked until votes are canvassed seven days after the election 
+unless there is a challenge to the election results. Id., at 206. As a re­
+sult, even if the State can require the vendor to unlock the voter rolls 
+when they were otherwise set to be locked, it seems likely that would 
+cause even more confusion and undermine the administration of an active, 
+ongoing election. 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 511 (2026) 
+527 
+Sotomayor, J., dissenting 
+It now appears that county offcials have just hours left, if 
+that. Because the District Court's injunction remained in 
+place while these applications were pending, it is unclear if 
+county offcials began reassigning voters or if they were 
+awaiting a decision from this Court. Indeed, Alabama, 
+while conceding “it is true that time is tight,” suggested that 
+voter reassignment has not yet begun. Reply 5; see ibid. 
+(noting that reassignment “was set to begin on May 27”). If 
+in fact reassignment has not begun, then elections offcials 
+may have only a few hours to make all the needed changes. 
+The Court nonetheless stays the District Court's injunction 
+and orders the 2023 Redistricting Plan into place, even 
+though it knows full well that “it will take a chaotic, decen­
+tralized, and Herculean effort” to make all the necessary 
+changes. 833 F. Supp. 3d, at 1238. 
+In response, Alabama asserts that it is the lower court that 
+violated Purcell v. Gonzalez, 549 U. S. 1 (2006), because it 
+was “the Legislature's and the Governor's choice” to infict 
+these harms. Application for Stay 35. Alabama's weaponi­
+zation of Purcell ignores half the story. Until roughly three 
+weeks ago, the District Court's remedial plan had governed 
+in Alabama for more than two years. Then, this Court va­
+cated the District Court's injunction and restored the 2023 
+Redistricting Plan. Although Alabama chose to use the 
+2023 Redistricting Plan for this election following this 
+Court's decision, the fact remains that this Court allowed 
+this change to go forward. Now, the Court is being pre­
+sented with a choice. It can use its equitable authority to 
+fx the mess it has created, or it can use that same authority 
+to deepen it further. The answer is clear: No principle of 
+either law or equity requires the Court to perpetuate disrup­
+tion instead of preventing it. 
+2 
+Second, the Court should not have rewarded Alabama's 
+defance of court orders and blatant gamesmanship through­
+out this litigation. It is long established that “ `he who 
+Page Proof Pending Publication
+
+528 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+comes into equity must come with clean hands.' ” Precision 
+Instrument Mfg. Co. v. Automotive Maintenance Machinery 
+Co., 324 U. S. 806, 814 (1945). Under this principle, to obtain 
+equitable relief like a stay pending appeal, a movant must 
+“have acted fairly and without fraud or deceit as to the con­
+troversy in issue.” Id., at 814–815; see New Hampshire v. 
+Maine, 532 U. S. 742, 749 (2001) (“ `[A]bsent any good expla­
+nation, a party should not be allowed to gain an advantage 
+by litigation on one theory, and then seek an inconsistent 
+advantage by pursuing an incompatible theory' ”). Ala-
+bama's hands, however, are far from clean. Instead, it defed 
+the District Court's order in these cases even after this 
+Court affrmed it, and took utterly irreconcilable positions at 
+different stages in these cases to suit its own purposes. 
+First, Alabama intentionally chose to fout a preliminary 
+injunction that this Court affrmed in Allen. Again, the 
+District Court's preliminary injunction (affrmed by this 
+Court) expressly ordered Alabama to draw a second district 
+in which Black voters would have an opportunity to elect the 
+candidate of their choice. See Singleton, 782 F. Supp. 3d, at 
+1125; supra, at 516. Yet the State staunchly refused to do 
+so and instead did everything it could to make it impossible 
+to draw such a district. 
+Of course, Alabama had every right to raise its “legal dis­
+agreement,” ante, at 513, with the District Court's original 
+preliminary injunction through the appellate process or oth­
+erwise. The course of action the State chose here, however, 
+was not the proper way of doing so. Had Alabama complied 
+with the preliminary injunction and drawn a map with a sec­
+ond opportunity district, it could have relitigated the merits 
+in the ordinary course: frst at a trial on the merits, and then 
+on appeal. At either stage, it could have raised the argu­
+ments that the litigants in Callais raised and prevailed on, or 
+advanced challenges to the District Court's remedial order. 
+Instead, Alabama willfully drew a map that fouted the Dis­
+trict Court's preliminary injunction and hoped that this 
+Page Proof Pending Publication
+
+Cite as: 608 U. S. 511 (2026) 
+529 
+Sotomayor, J., dissenting 
+Court would eventually see things its way. After today, it 
+is hard to call Alabama's cynical gambit anything other than 
+a success, and the Court's rewarding of Alabama's behavior 
+anything other than a blow to the rule of law. 
+Second, Alabama has taken wildly inconsistent positions 
+on how much time it needs to implement a new redistricting 
+plan throughout these cases, which suggests it is attempting 
+to game this Court's emergency docket through shifting posi­
+tions on the equities. As noted above, Alabama previously 
+sang a very different tune. In January 2022, it asked the 
+District Court to stay its initial preliminary injunction in 
+these cases. See ECF Doc. 110. In its motion, the State 
+complained that changing its congressional districts four 
+months before Alabama's primary election that year “thr[ew] 
+the [2022] election into chaos” and left “almost no time for 
+maps to be redrawn, hundreds of thousands of voters to be 
+reassigned to new districts, and thousands of new signatures 
+to be obtained by candidates and political organizations seek­
+ing ballot access.” Id., at 20. Alabama continued: “To pull 
+the rug out from . . . candidates and their voters in the run-
+up to an election requires extraordinary justifcation,” for 
+“ `elections are complex to administer, and the public interest 
+is not served by a chaotic, last-minute reordering of dis­
+tricts.' ” Id., at 21 (alterations omitted). The State made 
+similar arguments to this Court when it successfully sought 
+a stay following the District Court's denial. See Merrill 
+Application 38 (citing “the last-minute reassignment of hun­
+dreds of thousands of voters to new districts” as imposing 
+signifcant “harms not only [on] the State,” but also on “vot­
+ers and candidates”). 
+If all the above was true in 2022, then it is also true in 
+2026. Alabama, however, no longer seems to think so. 
+What was previously impossible to achieve in four months is 
+suddenly possible to achieve in less than one week, as con­
+cerns about the administrative burdens associated with “the 
+last-minute reassignment of hundreds of thousands of voters 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+530 
+ALLEN v. MILLIGAN 
+Sotomayor, J., dissenting 
+to new districts,” ibid., have apparently melted away. A 
+State that once decried pulling the rug out from under vot­
+ers, elections offcials, and candidates now seems determined 
+to do just that. The Court should not reward such games­
+manship, especially when it accepted Alabama's arguments 
+in granting Alabama a stay in 2022. See Merrill, 595 U. S., 
+at 1199 (Kavanaugh, J., concurring) (noting that “even he­
+roic efforts” by elections offcials “likely would not be enough 
+to avoid chaos and confusion”). 
+*
+*
+* 
+Weeks ago, I warned that vacating the District Court's 
+injunction in these cases would “unleash chaos and . . . con­
+fuse voters.” Caster, 608 U. S., at ––– (dissenting opinion). 
+Nevertheless, the Court forged ahead. Now the Court is 
+squarely faced with a record of the turmoil it has caused and 
+the harm it has wrought. Yet just as Alabama doubled 
+down on racial discrimination, the Court today doubles down 
+on chaos. Because I choose to defend the rule of law and the 
+right of all Alabamians to participate equally in democracy, 
+I respectfully dissent. 
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. Other revisions may include adjustments to formatting, cap­
+tions, citation form, and any errant punctuation. The following additional 
+edits were made: 
+p. 511, line 8: “other” is inserted before “goal” 
+p. 513, line 17: “(per curiam)” is inserted after “(ND Ala. 2005)” 
+p. 517, line 2 from bottom: “(per curiam)” is inserted after “(ND Ala. 
+2005)” 
+p. 520, line 10 from bottom: “(plurality opinion)” is inserted after “(1980)” 
+p. 527, line 17: “ v. Gonzalez, 546 U. S. 1 (2006)” is inserted after “Purcell” 
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+PRELIMINARY PRINT 
+Volume 598 U. S. Part 2 
+Pages 449–470 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 18, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+449 
+OCTOBER TERM, 2022 
+Syllabus 
+OHIO ADJUTANT GENERAL’S DEPARTMENT et al. v. 
+FEDERAL LABOR RELATIONS AUTHORITY et al. 
+certiorari to the united states court of appeals for 
+the sixth circuit 
+No. 21–1454. Argued January 9, 2023—Decided May 18, 2023 
+The Federal Service Labor-Management Relations Statute (FSLMRS) 
+provides for collective bargaining between federal agencies and their 
+employees' unions; bars each from committing unfair labor practices; 
+and establishes the Federal Labor Relations Authority (FLRA) to in­
+vestigate and adjudicate labor disputes. See 5 U. S. C. § 7101 et seq. 
+At issue here, the American Federation of Government Employees, 
+Local 3970, AFL–CIO is the exclusive representative of certain federal 
+civil-service employees known as dual-status technicians who work 
+for the Ohio National Guard. After their prior collective-bargaining 
+agreement (CBA) expired, petitioners here—the Ohio National Guard, 
+the Ohio Adjutant General, and the Ohio Adjutant General's Depart­
+ment (collectively the Guard)—asserted that the Guard was not bound 
+by the FSLMRS when interacting with the Guard's dual-status techni­
+cians. The Union subsequently fled an unfair labor practice complaint 
+with the FLRA to resolve the dispute. Pointing to the fact that the 
+FLRA only has jurisdiction over labor organizations and federal agen­
+cies, petitioners argued that the Guard was not an “agency” and that 
+dual-status technician bargaining-unit employees were not “employees” 
+for purposes of the FSLMRS. The Administrative Law Judge issued 
+a recommended decision fnding that: the FLRA had jurisdiction over 
+the Guard; the dual-status technicians had collective-bargaining rights 
+under the FSLMRS; and the Guard's actions in repudiating the CBA 
+violated the FSLMRS. A divided panel of the FLRA adopted the 
+ALJ's fndings, conclusions, and remedial order. Petitioners sought re­
+view in the Sixth Circuit, which denied relief. 
+Held: The FLRA had jurisdiction over this labor dispute because a State 
+National Guard acts as a federal agency for purposes of the FSLMRS 
+when it hires and supervises dual-status technicians serving in their 
+civilian role. 
+The question whether petitioners are an “agency” for purposes of the 
+FSLMRS when they act as supervisors of dual-status technicians is 
+bounded by a series of defned statutory terms. 5 U. S. C. § 7116(a)(1). 
+The FSLMRS defnes “agency” to include the Department of Defense. 
+§ 7103(a)(3). And each dual-status “technician . . . is an employee of 
+
+Page Proof Pending Publication
+450 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Syllabus 
+the Department of the Army or the Department of the Air Force.” 32 
+U. S. C. § 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Depart­
+ments, in turn, are components of the Department of Defense. 
+§§ 111(b)(6) and (8). Components of covered agencies plainly fall within 
+the reach of the FSLMRS. See 5 U. S. C. §§ 7103(a)(12), 7112(a). Thus, 
+when petitioners employ dual-status technicians, they—like components 
+of an agency—exercise the authority of the Department of Defense, a 
+covered agency. 
+The statutory authority permitting the Ohio Adjutant General to em­
+ploy dual-status technicians as civilian employees in the federal civil 
+service reinforces this point. See 5 U. S. C. § 2105(a)(1)(F). Congress 
+has required the Secretaries of the Army and Air Force to “designate” 
+adjutants general “to employ and administer” technicians. 32 U. S. C. 
+§ 709(d). That designation is the sole basis for petitioners' authority 
+to employ technicians performing work in their federal civilian roles. 
+Here, a 1968 order of the Secretary of the Army “designate[s]” and 
+“empower[s]” each adjutant general “to employ and administer the 
+Army National Guard technicians authorized for his State . . . as the 
+case may be.” General Order No. 85, ¶3. Accordingly, dual-status 
+technicians are ultimately employees of the Secretaries of the Army and 
+the Air Force, and petitioners are the Secretaries' designees for pur­
+poses of dual-status technician employment. Should a state adjutant 
+general wish to employ federal dual-status technicians, the adjutant 
+general must do so pursuant to delegated federal authority and subject 
+to federal civil-service requirements. See 5 U. S. C. § 2105(a)(1)(F). 
+The evolution of federal agency-employee relations law and the text 
+of § 7135(b) lend further support to the FLRA's exercise of authority 
+over the Guard. Section 7135(b) explicitly continues prior practice 
+under the provisions of Executive Order No. 11491—the precursor to 
+the FSLMRS—except where specifcally revoked by the President or 
+altered by the FSLMRS or corresponding regulations. The 1971 deci­
+sion in Thompson Field is on point. See Mississippi National Guard, 
+172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Manage­
+ment Relations (A/SLMR) No. 20. There, the Assistant Secretary of 
+Labor—exercising adjudicative authority under Executive Order No. 
+11491 analogous to the FLRA's—held that Mississippi's National Guard 
+technicians were employees of the Federal Government under Executive 
+Order No. 11491. The Assistant Secretary concluded that the State's 
+adjutant general had “been designated as an agent of the Secretaries of 
+the Army and the Air Force” in employing and administering dual-
+status technicians and that this agency relationship created the obliga­
+tion to comply with Executive Order No. 11491. Id., at 7. The defni­
+tions of “employee” and “agency” that Thompson Field examined were 
+
+451 
+Cite as: 598 U. S. 449 (2023) 
+Syllabus 
+materially identical to those that Congress ultimately adopted in the 
+FSLMRS. The Court thus ordinarily presumes that the FSLMRS 
+maintained the same coverage that existed under the prior regime, see, 
+e. g., George v. McDonough, 596 U. S. –––, –––, and the Court identifes 
+nothing to weaken that presumption here. Pp. 456–461. 
+21 F. 4th 401, affrmed. 
+Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. 
+Alito, J., fled a dissenting opinion, in which Gorsuch, J., joined, post, 
+p. 461. 
+Benjamin M. Flowers, Solicitor General of Ohio, argued 
+the cause for petitioners. With him on the briefs were Dave 
+Yost, Attorney General, and Michael J. Hendershot, Chief 
+Deputy Solicitor General. 
+Nicole Frazer Reaves argued the cause for the federal re­
+spondent. With her on the brief were Solicitor General 
+Prelogar, Deputy Solicitor General Fletcher, and Rebecca J. 
+Osborne. Andres M. Grajales argued the cause for re­
+spondent American Federation of Government Employees, 
+Local 3970, AFL–CIO. With him on the brief were Mat­
+thew Milledge and David A. Borer.* 
+*Briefs of amici curiae urging reversal were fled for the State of Mis­
+sissippi et al. by Lynn Fitch, Attorney General of Mississippi, Scott G. 
+Stewart, Solicitor General, and Justin L. Matheny and Anthony M. Shults, 
+Deputy Solicitors General, and by the Attorneys General for their respec­
+tive States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, 
+Leslie Rutledge of Arkansas, Jeff Landry of Louisiana, Austin Knudsen 
+of Montana, John M. O'Connor of Oklahoma, Mark Vargo of South Dakota, 
+Ken Paxton of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of 
+West Virginia; for the State of South Carolina by Alan Wilson, Attorney 
+General, Robert D. Cook, Solicitor General, and James Emory Smith, Jr., 
+Deputy Solicitor General; for the America First Policy Institute by Craig 
+W. Trainor and Pamela Jo Bondi; and for Americans for Fair Treatment 
+by David R. Dorey. 
+Briefs of amici curiae urging affrmance were fled for the American 
+Federation of Labor and Congress of Industrial Organizations et al. by 
+Harold C. Becker, Andrew Lyubarsky, Bruce Lerner, Ramya Ravindran, 
+and Theodore T. Green; and for Military Law Scholars by Charles A. Roth­
+Page Proof Pending Publication
+
+452 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Opinion of the Court 
+Justice Thomas delivered the opinion of the Court. 
+This case requires us to determine whether the Federal 
+Labor Relations Authority (FLRA) properly exercised juris­
+diction over an unfair labor practices dispute. On one side 
+were the Ohio National Guard, the Ohio Adjutant General, 
+and the Ohio Adjutant General's Department (collectively 
+petitioners or the Guard). On the other was the American 
+Federation of Government Employees, Local 3970, AFL– 
+CIO (Union), which represents federal employees known as 
+dual-status technicians who work in both civilian and mili­
+tary roles for the Guard. 
+The Union petitioned the FLRA to resolve the dispute. 
+But, under the Federal Service Labor-Management Rela­
+tions Statute (FSLMRS or Statute), the FLRA only has ju­
+risdiction over labor organizations and federal “agencies”— 
+and petitioners insist that they are neither. 5 U. S. C. § 7101 
+et seq. We hold, however, that petitioners act as a federal 
+“agency” when they hire and supervise dual-status techni­
+cians serving in their civilian role. 
+I 
+A 
+Enacted in 1978, the FSLMRS establishes a comprehen­
+sive framework governing labor-management relations in 
+federal agencies. It secures the right of “[e]ach employee” 
+“to form, join, or assist any labor organization, or to refrain 
+from any such activity, freely and without fear of penalty 
+or reprisal.” § 7102. And, it further guarantees that “each 
+employee shall be protected in the exercise of such right.” 
+Ibid. To that end, the FSLMRS provides for collective 
+bargaining between federal agencies and their employees' 
+unions, and it bars each from committing unfair labor prac­
+feld, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, and 
+Eugene R. Fidell, pro se. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+453 
+Cite as: 598 U. S. 449 (2023) 
+Opinion of the Court 
+tices. See §§ 7102(2) and 7116(a)–(b). For example, an 
+agency may not “interfere with, restrain, or coerce any em­
+ployee in the exercise by the employee of any right under” 
+the Statute; “refuse to consult or negotiate in good faith with 
+a labor organization as required by” the Statute; or “other­
+wise fail or refuse to comply with any provision of” the 
+Statute. §§ 7116(a)(1), (5), (8). 
+The Statute creates the FLRA and tasks it with adminis­
+tering this framework, including by investigating and adjudi­
+cating labor disputes. § 7105(a)(2)(G); see also §§ 7104 and 
+7118(a)(1). It provides that the FLRA's general counsel 
+“shall investigate” a charge against “any agency or labor or­
+ganization” and, if warranted, may issue a complaint call­
+ing for a hearing before the FLRA. §§ 7118(a)(1)–(2). The 
+FLRA is then responsible for “conduct[ing] hearings and re­
+solv[ing such] complaints.” § 7105(a)(2)(G). If the FLRA 
+determines that an agency or a union has engaged in an 
+unfair labor practice, it “may require” the entity “to cease 
+and desist from violations of [the Statute] and require it 
+to take any remedial action it considers appropriate.” 
+§ 7105(g)(3). 
+This case concerns the Statute's application to a unique 
+category of federal civil-service employees: dual-status tech­
+nicians working for the State National Guards. These “rare 
+bird[s]” occupy both civilian and military roles. Babcock v. 
+Kijakazi, 595 U. S. –––, ––– (2022). They serve as “civil­
+ian employee[s]” engaged in “organizing, administering, 
+instructing,” “training,” or “maintenance and repair of sup­
+plies” to assist the National Guard. 10 U. S. C. § 10216(a) 
+(1)(C); see 32 U. S. C. §§ 709(a)(1)–(2); Babcock, 595 U. S., 
+at –––. Yet, they must “as a condition of that employment 
+. . . maintain membership in the [National Guard]” and wear 
+a uniform while working. 10 U. S. C. § 10216(a)(1)(B); see 32 
+U. S. C. §§ 709(b)(2)–(4). Except when participating as Na­
+tional Guard members in part-time drills, training, or active-
+duty deployment, see 32 U. S. C. §§ 502(a) and 709(g)(2), dual­
+
+454 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Opinion of the Court 
+status technicians work full time in a civilian capacity and 
+receive federal civil-service pay. See Babcock, 595 U. S., 
+at ––– – –––; see also 5 U. S. C. § 2101(a). 
+Importantly, under the Technicians Act of 1968, each dual-
+status technician is considered “an employee of the Depart­
+ment of the Army or the Department of the Air Force, as 
+the case may be, and an employee of the United States.” 
+32 U. S. C. § 709(e). While it is state adjutants general who 
+“employ and administer” dual-status technicians working for 
+their respective State National Guard units, they can only 
+do so pursuant to an express “designat[ion]” of authority by 
+the Secretary of the Army or the Secretary of the Air Force. 
+§ 709(d); see also Dept. of the Army, S. Resor, Delegation of 
+Authority Under the National Guard Technicians Act of 1968 
+(General Order No. 85, Dec. 31, 1968) (General Order No. 85) 
+(current order designating the relevant authority). 
+B 
+The parties' collective-bargaining relationship dates back 
+to 1971, when the Guard recognized the Union as the ex­
+clusive representative of its dual-status technicians. They 
+have since negotiated a number of collective-bargaining 
+agreements (CBAs), the most recent of which was signed in 
+2011 and expired in 2014. As the expiration date neared, 
+the Guard and the Union entered into negotiations for a 
+new agreement. During this process, in March 2016, they 
+adopted a memorandum of understanding whereby the Ohio 
+Adjutant General promised to abide by certain practices con­
+tained in the expired agreement. But, later that year, the 
+Ohio Adjutant General's Department reversed course. It 
+asserted that it was not bound by the expired CBA and did 
+not consider itself bound by the FSLMRS when interacting 
+with dual-status technicians. The Guard also sent letters to 
+dual-status technician Union members, asking them to sub­
+mit the requisite forms to permit the deduction of Union 
+dues from their pay. The letters advised that, if the techni­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 449 (2023) 
+455 
+Opinion of the Court 
+cians did not promptly submit the forms, the Guard would 
+cancel dues deductions on their behalf. The Guard ulti­
+mately terminated dues withholding for 89 technicians. 
+The Union subsequently fled unfair labor practice charges 
+with the FLRA. After investigating, the FLRA general 
+counsel issued consolidated complaints against the “U. S. De­
+partment of Defense, Ohio National Guard,” alleging that 
+the Guard had refused to negotiate in good faith and in­
+terfered with the exercise of employee rights under the Stat­
+ute through its treatment of technicians' dues deductions. 
+App. 16. The Ohio Adjutant General and the Ohio Adjutant 
+General's Department intervened on the side of the Ohio 
+National Guard. 
+Petitioners argued before the Administrative Law Judge 
+that the Guard was not an “agency” and that dual-status 
+technician bargaining-unit employees were not “employees” 
+for purposes of the Statute. The Administrative Law Judge 
+issued a recommended decision fnding that the FLRA had 
+jurisdiction over the Guard, that the dual-status technicians 
+had collective-bargaining rights under the Statute, and that 
+the Guard's actions in repudiating the CBA violated the Stat­
+ute. It thus ordered petitioners to follow the mandatory 
+terms of the 2011 CBA, bargain in good faith going forward, 
+and reinstate Union dues withholding. A divided panel of 
+the FLRA adopted the Administrative Law Judge's fndings, 
+conclusions, and remedial order. 
+The Guard petitioned for review in the U. S. Court of Ap­
+peals for the Sixth Circuit, which denied the petition. 21 
+F. 4th 401 (2021). The Sixth Circuit held that the Guard is 
+an agency subject to the Statute when it operates in its ca­
+pacity as employer of dual-status technicians. The court 
+further found that dual-status technicians are federal civilian 
+employees with collective-bargaining rights under the Stat­
+ute. Thus, because the FLRA has authority to enforce 
+those collective-bargaining rights, the court concluded that 
+this dispute fell within its jurisdiction. 
+Page Proof Pending Publication
+
+456 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Opinion of the Court 
+We granted certiorari to consider whether the FLRA had 
+jurisdiction over this labor dispute under the Statute. 598 
+U. S. ––– (2022).1 
+II 
+Under the FSLMRS, it is “an unfair labor practice for an 
+agency” “to interfere with, restrain, or coerce any employee 
+in the exercise by the employee of any right under” the Stat­
+ute. 5 U. S. C. § 7116(a)(1). The FLRA's jurisdiction over 
+this unfair labor practices dispute thus turns on whether 
+petitioners are an “agency” for purposes of the Statute when 
+they act in their capacities as supervisors of dual-status tech­
+nicians, a question bounded by a series of defned terms. 
+The Statute defnes an “agency” as “an Executive agency,” 
+with exceptions not relevant here. § 7103(a)(3). Then, the 
+term “ `Executive agency,' ” as used in Title 5, “means an 
+Executive department, a Government corporation, and an in­
+dependent establishment.” § 105. And each of those terms 
+is separately defned: an “Executive departmen[t]” means 
+each of 15 Cabinet-level Departments, including “[t]he De­
+partment of Defense,” § 101; a “ `Government corporation' 
+means a corporation owned or controlled by the Government 
+of the United States,” § 103; and an “ `independent establish­
+ment' means” “an establishment in the executive branch,” 
+with exceptions not relevant here, “which is not an Execu­
+tive department, military department, Government corpora­
+tion, or part thereof, or part of an independent establish­
+ment,” § 104(1). It is undisputed that the Guard is neither 
+a “Government corporation” nor an “independent establish­
+ment,” leaving only “Executive department” at issue. 
+1 We did not grant certiorari to consider petitioners' additional question 
+presented, which disputed the constitutionality of the FLRA's authority 
+to regulate the labor practices of state militia members who are not em­
+ployed in the service of the United States. Consequently, we address 
+only the statutory question presented, and our holding is limited to the 
+unique class of federal employees hired and supervised by state adju­
+tants general. 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 449 (2023) 
+457 
+Opinion of the Court 
+Petitioners work backwards through the links in the statu­
+tory chain. They argue that they are not an Executive de­
+partment because they are not listed among the 15 Cabinet-
+level Departments specifed in § 101. Thus, they claim, they 
+are not an “Executive agency” under § 105 and, accordingly, 
+do not qualify as an “agency” under the Statute. Respond­
+ents counter that the components, representatives, and 
+agents of an agency may be required to comply with the 
+Statute. And they emphasize that petitioners exercise fed­
+eral authority in employing dual-status technicians and must 
+therefore comply with applicable federal law. Respondents 
+have the better of the argument. 
+A 
+The Guard, when employing dual-status technicians, func­
+tions as an agency covered by the Statute. The Statute 
+defnes “ `agency' ” to include the Department of Defense, 
+one of the enumerated executive Departments in § 101. 
+§ 7103(a)(3); see §§ 101 and 105. 
+And, each dual-status 
+“technician . . . is an employee of the Department of the 
+Army or the Department of the Air Force.” 32 U. S. C. 
+§ 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Depart­
+ments, in turn, are components of the Department of De­
+fense. 10 U. S. C. §§ 111(b)(6) and (8). And, components of 
+covered agencies plainly fall within the Statute's reach. 5 
+U. S. C. §§ 7103(a)(12) (contemplating collective bargaining 
+between “the representative of an agency” and “the exclu­
+sive representative of employees in an appropriate unit in 
+the agency”) and 7112(a) (contemplating the establishment of 
+“appropriate” bargaining units “on an agency, plant, installa­
+tion, functional, or other basis”). Accordingly, when peti­
+tioners employ and supervise dual-status technicians, they— 
+like components of an agency—exercise the authority of the 
+Department of Defense, a covered agency. 
+The statutory authority permitting the Adjutant General 
+to employ dual-status technicians reinforces this point. Ad­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+458 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Opinion of the Court 
+jutants general appoint dual-status technicians as civilian 
+employees in the federal civil service. 
+See 5 U. S. C. 
+§ 2105(a)(1)(F) (providing that the term “ `employee,' ” for 
+purposes of Title 5, ordinarily includes “an individual . . . 
+appointed in the [federal] civil service by . . . an adjutant 
+general designated by the Secretary [of the Army or of the 
+Air Force] under section 709[(d)] of title 32”). And, Con­
+gress has required the Secretaries of the Army and Air 
+Force to “designate” adjutants general “to employ and ad­
+minister” technicians. 32 U. S. C. § 709(d). That designa­
+tion is the sole basis for petitioners' authority to employ 
+technicians performing work in their federal civilian roles, 
+confrming that petitioners act on behalf of—and exercise the 
+authority of—a covered federal agency when they supervise 
+dual-status technicians. 
+Here, for example, a 1968 order of the Secretary of the 
+Army “designate[s]” and “empower[s]” each adjutant general 
+“to employ and administer the Army National Guard techni­
+cians authorized for his State . . . as the case may be.” Gen­
+eral Order No. 85, ¶3. Accordingly, dual-status technicians 
+are ultimately employees of the Secretaries of the Army and 
+the Air Force, and petitioners are the Secretaries' designees 
+for purposes of dual-status technician employment. Should 
+a state adjutant general wish to employ federal dual-status 
+technicians, he must do so pursuant to delegated federal 
+authority and subject to federal civil-service requirements. 
+See 5 U. S. C. § 2105(a)(1)(F). Indeed, it would be passing 
+strange if dual-status technicians, who qualify as employees 
+under the Statute, were supervised by an entity not required 
+to safeguard the rights guaranteed employees under the 
+Statute. §§ 7102 (providing that “each employee shall be 
+protected in the exercise of” his right to join or refrain from 
+joining a labor association) and 7103(a)(2)(A) (defning an 
+“ `employee' ” as “an individual . . . employed in an agency”). 
+The case caption in this matter refects the Guard's federal 
+function with respect to hiring dual-status technicians; be­
+
+459 
+Cite as: 598 U. S. 449 (2023) 
+Opinion of the Court 
+fore the FLRA, the case proceeded against the “U. S. De­
+partment of Defense, Ohio National Guard,” with the Adju­
+tant General and the Adjutant General's Department joining 
+the suit later as intervenors. App. 16. 
+Petitioners contend that federalism concerns require us to 
+read the Statute to exempt them from the FLRA's jurisdic­
+tion. But, the FLRA enforces the rights and obligations of 
+federal civilian employees and their agency employers. Be­
+cause adjutants general act on behalf of an agency of the 
+Federal Government with respect to their supervision of ci­
+vilian technicians, their actions in that capacity do not impli­
+cate the balance between federal and state powers. See 10 
+U. S. C. § 10216(a); 32 U. S. C. § 709(e). 
+B 
+The evolution of federal agency-employee relations law 
+and the text of 5 U. S. C. § 7135(b), which functions as the 
+Statute's saving clause, lend further support to the FLRA's 
+exercise of authority over the Guard. Before the FSLMRS 
+was adopted, “labor-management relations in the federal sec­
+tor were governed by a program established” by a series of 
+Executive Orders “under which federal employees had lim­
+ited rights to engage in” collective bargaining. Bureau of 
+Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91– 
+92 (1983). The Statute's immediate predecessor, Executive 
+Order No. 11491, established the precursor to the current 
+FLRA and listed prohibited unfair labor practices for both 
+federal agency management and unions. See Exec. Order 
+No. 11491, 3 CFR 861 (1966–1970 Comp.). When Congress 
+later replaced that Executive Order with the FSLMRS, it 
+explicitly continued many aspects of the pre-FSLMRS re­
+gime: “Policies, regulations, and procedures established 
+under and decisions issued under Executive Orde[r] 11491 . . . 
+shall remain in full force and effect until revised or revoked 
+by the President, or unless superseded by specifc provisions 
+of [the Statute] or by regulations or decisions issued pursu­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+460 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Opinion of the Court 
+ant to [the Statute].” 5 U. S. C. § 7135(b). Thus, “decisions 
+issued under Executive Orde[r] 11491” supply critical guid­
+ance regarding the FLRA's jurisdiction today. 
+One such decision is directly on point. In the 1971 case 
+of Mississippi National Guard, 172d Military Airlift Group 
+(Thompson Field), Asst. Sec. Labor/Management Relations 
+(A/SLMR) No. 20 (Thompson Field), the Assistant Secre­
+tary of Labor—exercising adjudicative authority under Ex­
+ecutive Order No. 11491 analogous to the modern FLRA's— 
+rejected arguments virtually identical to those petitioners 
+advance here. See id., at 2 (describing the state guard's ar­
+gument “that the provisions of Executive Order 11491 did 
+not apply . . . because the employees involved are under 
+the operational control of the Adjutant General of the State 
+of Mississippi, who is appointed and employed pursuant to 
+State law”). The Assistant Secretary reasoned “that Na­
+tional Guard technicians [were] employees within the mean­
+ing of” the Executive Order and “employees of the Federal 
+government” under the Technicians Act. Id., at 6. The As­
+sistant Secretary then concluded that the adjutant general 
+had “been designated as an agent of the Secretaries of the 
+Army and the Air Force” in employing and administering 
+dual-status technicians and that this agency relationship 
+created the obligation to comply with Executive Order 
+No. 11491. Id., at 7. 
+The defnitions of “employee” and “agency” that Thomp­
+son Field examined under Executive Order No. 11491 were 
+materially identical to those that Congress ultimately 
+adopted in the FSLMRS. Compare 5 U. S. C. §§ 7103(a)(2)– 
+(3) (defning “ `employee' ” as “an individual . . . employed in 
+an agency,” and defining “ `agency' ” as “an Executive 
+agency,” which § 105 in turn defnes as an executive depart­
+ment, a Government corporation, and an independent estab­
+lishment) with Exec. Order No. 11491, §§ 2(a)–(b) (defning 
+“ `[e]mployee' ” primarily as “an employee of an agency,” and 
+defning “ `[a]gency' ” as “an executive department, a Govern­
+
+461 
+Cite as: 598 U. S. 449 (2023) 
+Alito, J., dissenting 
+ment corporation, and an independent establishment”). We 
+would, therefore, ordinarily presume that the FSLMRS 
+maintained the same coverage that existed under the prior 
+regime. See, e. g., George v. McDonough, 596 U. S. –––, ––– 
+(2022); Taggart v. Lorenzen, 587 U. S. –––, ––– – ––– (2019). 
+We see nothing to weaken the force of that presumption 
+here. On the contrary, § 7135(b) specifcally demonstrates 
+Congress' intent to leave the prior regime in place except 
+where it was specifcally altered. And, because the Presi­
+dent has not revoked it and neither the FSLMRS nor associ­
+ated regulations have repudiated it, the decision in Thomp­
+son Field “remain[s] in full force and effect.” § 7135(b). 
+*
+*
+* 
+We conclude that petitioners are subject to the authority 
+of the FLRA when acting in their capacities as supervisors 
+of dual-status technicians. Each dual-status technician is an 
+employee of the Department of the Army or the Department 
+of the Air Force; those Departments are, in turn, components 
+of the Department of Defense; and the Department of De­
+fense is a covered agency under the Statute. Further, a 
+designation from the Department of the Army is the sole 
+basis for petitioners' authority to employ dual-status techni­
+cians. Accordingly, petitioners employ federal dual-status 
+technicians pursuant to delegated federal authority and sub­
+ject to federal civil-service requirements. The Statute also 
+explicitly incorporates prior practice, including the decision 
+in Thompson Field, which further reinforces our conclusion. 
+The judgment of the Sixth Circuit is affrmed. 
+It is so ordered. 
+Justice Alito, with whom Justice Gorsuch joins, 
+dissenting. 
+Petitioners, the Ohio National Guard, the Ohio Adjutant 
+General, and the Ohio Adjutant General's Department, chal­
+Page Proof Pending Publication
+
+462 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Alito, J., dissenting 
+lenge the lawfulness of an order of the Federal Labor Rela­
+tions Authority (FLRA). That order directs petitioners to 
+honor their existing agreement with the union that repre­
+sents the dual-status civilian technicians who are members 
+of the Ohio National Guard and to bargain in good faith with 
+the union in the future. The Court correctly observes that 
+the FLRA's ability to enter such an order against petitioners 
+“turns on whether petitioners are an `agency' for purposes of 
+the” Federal Service Labor-Management Relations Statute. 
+Ante, at 456; see 5 U. S. C. § 7105(g)(3). But the Court stops 
+short of answering that question, holding instead that peti­
+tioners “act as a federal `agency,' ” ante, at 452, “exercise 
+the authority of” a covered agency, ante, at 457, and even 
+“functio[n] as an agency,” ibid. Because petitioners are not 
+actually federal agencies, a proposition that the Court does 
+not dispute, the FLRA lacks jurisdiction to enter remedial 
+orders against them. 
+I 
+These dual-status civilian technicians are indeed strange 
+creatures—“rare bird[s,]” as we called them last Term. 
+Babcock v. Kijakazi, 595 U. S. –––, ––– (2022); ante, at 453– 
+454. For that reason, any decision we make here may have 
+odd spillover effects. See, e. g., Nelson v. Geringer, 295 
+F. 3d 1082, 1084, 1086 (CA10 2002) (considering a Rev. Stat. 
+§ 1979, 42 U. S. C. § 1983 claim, which is available for depriva­
+tions of rights under state law, against a state adjutant gen­
+eral); Singleton v. MSPB, 244 F. 3d 1331, 1336–1337 (CA Fed. 
+2001) (holding that the Merit Systems Protection Board lacks 
+authority over state adjutants general because they are not 
+federal employees or agencies); Chaudoin v. Atkinson, 494 
+F. 2d 1323, 1329 (CA3 1974) (allowing a mandamus action 
+brought by a civilian technician to proceed against a state 
+adjutant general based on the court's authority “ `to compel 
+an offcer or employee of the United States or any agency 
+thereof to perform a duty owed to the plaintiff' ” (quoting 28 
+U. S. C. § 1361)). But the consequences of petitioners' the­
+Page Proof Pending Publication
+
+463 
+Cite as: 598 U. S. 449 (2023) 
+Alito, J., dissenting 
+ory are not nearly as odd as the majority claims, and a plain 
+reading of the statutory text leads ineluctably to the conclu­
+sion that petitioners are not “agenc[ies]” within the meaning 
+of the Federal Service Labor-Management Relations Statute 
+(FSLMRS or Statute). 5 U. S. C. § 7105(g)(3). 
+A 
+“[W]e begin by analyzing the statutory language,” for 
+“[w]e must enforce plain and unambiguous statutory lan­
+guage according to its terms.” Hardt v. Reliance Standard 
+Life Ins. Co., 560 U. S. 242, 251 (2010). The conclusion that 
+petitioners should prevail follows from a straightforward 
+reading of the statute's text. 
+First, the FSLMRS gives the FLRA remedial jurisdiction 
+over an entity if it is “an agency or a labor organization.” 
+§ 7105(g)(3). Second, petitioners are obviously not labor or­
+ganizations, and thus the only question before us is whether 
+they are “agenc[ies].” Third, “agency,” a defned term in 
+the FSLMRS, means, with certain exceptions not relevant 
+here, “an Executive agency.” § 7103(a)(3). Fourth, an “Ex­
+ecutive agency” is defned as “an Executive department, 
+a Government corporation, [or] an independent establish­
+ment.” § 105. Fifth, no petitioner is listed among the exec­
+utive departments in § 101's exhaustive list. 
+See § 101. 
+Likewise, no petitioner is either a “Government corporation” 
+(i. e., a “corporation owned or controlled by the Government 
+of the United States,” § 103(1)) or an independent establish­
+ment (i. e., “an establishment in the executive branch,” 
+§ 104(1)). Thus, no petitioner is an “agency” within the 
+meaning of the FSLMRS, and that means that the FLRA 
+lacks remedial jurisdiction over petitioners under 
+§ 7105(g)(3). 
+Interpretation of a statute both “ `begins with the statutory 
+text, and ends there as well' ” if the text is “ `unambiguous.' ” 
+National Assn. of Mfrs. v. Department of Defense, 583 U. S. 
+109, 127 (2018). This simple textual analysis shows that 
+Page Proof Pending Publication
+
+464 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Alito, J., dissenting 
+the FSLMRS's language unambiguously does not allow the 
+FLRA to direct a remedial order to any petitioner. That 
+should be the end of the matter. 
+B 
+Because it is so clear that no petitioner is an “agency,” the 
+Court sidesteps the issue. Instead, it rests its decision on 
+three main grounds. It notes: (1) the dual status technicians 
+are federal employees, (2) petitioners “exercise the authority 
+of” a covered agency as components or representatives of 
+that agency, ante, at 457, and (3) pre-FSLMRS administra­
+tive practice supports the FLRA's exercise of jurisdiction. 
+None of these grounds justifes the conclusion that any of the 
+petitioners is an “agency” subject to the FLRA's remedial 
+authority. 
+1 
+The Court refers repeatedly to the uncontested propo­
+sition that the technicians are federal employees, are sub­
+ject to federal civil-service requirements, and are employed 
+under federal law. Ante, at 454, 457–458, 461. The Court 
+posits that “it would be passing strange if dual-status techni­
+cians, who qualify as employees under the Statute, were su­
+pervised by an entity not required to safeguard the rights 
+guaranteed employees under the Statute.” Ante, at 458. 
+But the question on which this case turns is not whether the 
+technicians are federal employees or whether they have civil 
+service or bargaining rights. It is not even whether peti­
+tioners are obligated to “safeguard” the technicians' bargain­
+ing rights. The question is whether any such obligations 
+can be enforced by means of an order from the FLRA. 
+In the context of our own remedial authority, we regularly 
+acknowledge many potential impediments to granting a judi­
+cial remedy, even to a litigant that might be able to prove 
+that another party has breached its rights. For instance, 
+we might lack subject-matter jurisdiction over a particular 
+claim, see, e. g., Steel Co. v. Citizens for Better Environment, 
+Page Proof Pending Publication
+
+465 
+Cite as: 598 U. S. 449 (2023) 
+Alito, J., dissenting 
+523 U. S. 83, 94–95 (1998), or lack personal jurisdiction over 
+a particular defendant, see, e. g., Daimler AG v. Bauman, 
+571 U. S. 117, 121–122 (2014). The plaintiff may lack a pri­
+vate right of action, see, e. g., Alexander v. Sandoval, 532 
+U. S. 275, 293 (2001), or the defendant may have a valid im­
+munity defense, see, e. g., Wilson v. Layne, 526 U. S. 603, 
+605–606 (1999). The fact that litigants with meritorious 
+claims may not be able to obtain a particular remedy from a 
+particular source is not “strange,” but perfectly ordinary. 
+It is no more strange to say in this case that, regardless 
+of whatever rights and duties the parties may have, the 
+particular remedy of an FLRA order is unavailable. “Ad­
+ministrative agencies are creatures of statute,” National 
+Federation of Independent Business v. OSHA, 595 U. S. 
+–––, ––– (2022) (per curiam), and accordingly “have only 
+those powers given to them by Congress,” West Virginia v. 
+EPA, 597 U. S. –––, ––– (2022). If Congress wants the 
+FLRA to have authority to enter an order against any of 
+the petitioners, it must give the FLRA that authority. See 
+American Power & Light Co. v. SEC, 329 U. S. 90, 112–113 
+(1946) (contemplating that an agency's remedy may be set 
+aside where it “is unwarranted in law”).* 
+2 
+Second, the Court reasons that petitioners, in supervising 
+the technicians, “exercise the authority of the Department of 
+Defense, a covered agency.” Ante, at 457. The Court ap­
+provingly relates respondents' argument that, while petition­
+ers may not be agencies, “the components, representatives, 
+*Although an order from the FLRA is not available, several mechanisms 
+exist to remedy breaches of petitioners' obligations. As petitioners con­
+cede, the National Guard Bureau may exert its authority via control of 
+funding and recognition of state guards. See Brief for Petitioners 33–34. 
+And the Federal Government could bring a suit against petitioners in an 
+Article III court to enforce the technicians' bargaining rights. See, e. g., 
+Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 71, n. 14 (1996). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+466 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Alito, J., dissenting 
+and agents of an agency may be required to comply with the 
+Statute.” Ante, at 457. The Court does not specify which 
+of these three categories it thinks petitioners fall into. It 
+says only that petitioners are “like components of an 
+agency.” Ibid. (emphasis added). And it fnds that they 
+are “like” components of an agency because they supervise 
+the technicians pursuant to a “designat[ion]” from the heads 
+of the Departments of the Army and the Air Force, which 
+are themselves components of the Department of Defense. 
+Ante, at 458. Since the Department of Defense is an agency, 
+the Court reasons that the same must be true of petitioners. 
+The problem with this reasoning is that a “designat[ion]” 
+to exercise the authority of an “agency” does not turn the 
+designee into an agency. Just because A is designated to 
+exercise the authority of B, it does not follow that A is B. 
+Here is an example. If an administrative hearing offcer in 
+the Department of the Interior is disqualifed from hearing 
+a case, that offcer must report that information “to the Sec­
+retary of the Interior or such offcer as he may designate.” 
+43 U. S. C. § 101 (emphasis added). The designated offcer 
+does not become the Secretary by virtue of having been des­
+ignated to carry out a duty or exercise authority that would 
+otherwise rest with the Secretary. 
+The same is true here. The designation of petitioners by 
+the Departments of the Army and Air Force to perform some 
+of those departments' duties and to exercise some of their 
+authority does not turn petitioners into agencies or necessar­
+ily have any effect beyond assigning them those duties and 
+responsibilities. 32 U. S. C. § 709(d). 
+The Court's related and highly functionalist argument that 
+petitioners must be subject to the FLRA because they “ex­
+ercise the authority of” an agency in supervising the techni­
+cians similarly fails. Ante, at 457. One entity may aug­
+ment the power of another by delegating to it certain 
+authority. See, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 
+343 U. S. 579, 635–638 (1952) (Jackson, J., concurring). That 
+
+467 
+Cite as: 598 U. S. 449 (2023) 
+Alito, J., dissenting 
+delegation of authority, however, does not turn the latter en­
+tity into the former one. That petitioners exercise author­
+ity that federal agencies would otherwise hold does not make 
+them agencies any more than the President is Congress 
+when he exercises authority pursuant to congressional au­
+thorization. See ibid. 
+To be sure, the offcial who makes the designation cannot 
+delegate authority that he or she does not have. If the 
+FSLMRS constrains the Departments of the Army and Air 
+Force in their relationship with the technicians, it stands to 
+reason that those Departments cannot delegate to adjutants 
+general the power to supervise the technicians free from 
+such constraints. As I have explained, though, this case 
+turns not on whether petitioners have obligations to bar­
+gain with the technicians, but on whether those obligations 
+may be enforced against petitioners as if they are “agen­
+c[ies].” 5 U. S. C. § 7105(g)(3). And on that score, saying 
+the Departments' designation transforms petitioners into 
+agencies, with all the legal ramifcations of that label, is no 
+more sensible than saying the offcer the Secretary of the 
+Interior designates to receive disqualifcation notices be­
+comes, like the Secretary of the Interior, a principal offcer 
+of the United States subject to Senate confrmation. U. S. 
+Const., Art. II, § 2. 
+3 
+Finally, the Court's reliance on the Statute's “saving 
+clause,” §7135(b), and on the Assistant Secretary of Labor's 
+decision in Thompson Field, is both misplaced and unpersua­
+sive on its own terms. See Mississippi National Guard, 172d 
+Military Airlift Group (Thompson Field), Asst. Sec. Labor/ 
+Management Relations (A/SLMR) No. 20 (Thompson Field). 
+Section 7135(b) provides that “[p]olicies, regulations, and 
+procedures established under and decisions issued under Ex­
+ecutive Orde[r] 11491 . . . shall remain in full force and effect 
+until revised or revoked by the President, or unless super­
+seded by specifc provisions of [the Statute] or by regulations 
+Page Proof Pending Publication
+
+468 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Alito, J., dissenting 
+or decisions issued pursuant to [the Statute].” This lan­
+guage merely directs that, absent specifc abrogation by the 
+FSLMRS or reconsideration by the appropriate executive 
+offcer, prior administrative policies, regulations, and proce­
+dures remain just as binding on the Executive Branch as 
+they were before the adoption of the FSLMRS. The Court 
+appears to agree, describing the saving clause as having “con­
+tinued” pre-FSLMRS administrative practice. Ante, at 459. 
+If that is all that the saving clause did, however, I fail to 
+see why it is relevant here. Congress's directive to “con-
+tinu[e]” existing administrative practices does not evince ap­
+proval of any particular practice or prevent a court from say­
+ing that a particular practice has been unlawful all along. 
+The saving clause “expressly intended to allow both the 
+[FLRA] and the courts to disregard . . . earlier . . . interpre­
+tation[s] of the Executive Order” and “did not intend for the 
+[FLRA] or the courts to pay any deference to [such earlier] 
+interpretations.” INS v. FLRA, 855 F. 2d 1454, 1461 (CA9 
+1988); see also Department of Air Force v. FLRA, 877 F. 2d 
+1036, 1041 (CADC 1989) (§ 7135 “was merely intended to pre­
+vent the slate from being wiped clean until the [FLRA] and 
+the courts could interpret the [FSLMRS] in a manner con­
+sistent with Congress's intent” (internal quotation marks 
+omitted)). Prior agency practice under the “materially 
+identical” language of Executive Order No. 11491 is thus no 
+obstacle to adopting the straightforward reading of “agency” 
+the FSLMRS's text requires. Ante, at 460. 
+Although the majority's historical-practice argument is 
+fawed at the foundation because it misreads § 7135(b), the 
+single administrative decision it cites in support of its argu­
+ment does not shed much light on the matter at hand anyway. 
+In Thompson Field, the Adjutant General of the State of 
+Mississippi raised a number of objections to federal oversight 
+of the technicians, including that the technicians are not fed­
+eral employees; that Executive Order No. 11491 is categori­
+cally “not applicable to the State of Mississippi”; and that 
+Page Proof Pending Publication
+
+469 
+Cite as: 598 U. S. 449 (2023) 
+Alito, J., dissenting 
+bargaining with a technicians' union would violate Missis­
+sippi law. Thompson Field, at 3–5. 
+The Mississippi Adjutant General did not make the ar­
+gument that his Department is not an “agency” within 
+the meaning of the remedial provision of Executive Order 
+No. 11491. 
+Moreover, in deciding Thompson Field, the Assistant Sec­
+retary of Labor relied principally on the fact that dual-status 
+civilian technicians are federal employees and that the pro­
+tections of Executive Order No. 11491 apply to them. Id., 
+at 6–7. That analysis does not answer the key question 
+whether the Mississippi Adjutant General is an “agency” 
+subject to remedial jurisdiction. 
+And while the Court 
+quotes the Assistant Secretary's remark that the Adjutant 
+General is “ `an agent of the Secretaries of the Army and the 
+Air Force,' ” ante, at 460, that observation was made in the 
+course of rejecting the Adjutant General's argument that 
+Mississippi law did not permit him to bargain with a labor 
+organization. Thompson Field, at 7. The Assistant Secre­
+tary was not addressing the question whether being an 
+“agent” of those Secretaries rendered the Adjutant General 
+suffciently “like an agency” to be subject to federal reme­
+dial jurisdiction. 
+A single administrative decision, like a single or even “a 
+smattering of lower court opinions,” is ordinarily not espe­
+cially probative of statutory meaning. BP p.l.c. v. Mayor 
+and City Council of Baltimore, 593 U. S. –––, ––– (2021); see 
+also George v. McDonough, 596 U. S. –––, ––– (2022) (explain­
+ing that a “robust regulatory backdrop” may “fl[l] in the 
+details” of a statutory scheme (emphasis added)). The sav­
+ing clause does not render this case an exception. Conse­
+quently, a single administrative decision by an Assistant Sec­
+retary that does not even address the particular argument 
+petitioners raise in this case offers no reason to resist the 
+conclusion that the Ohio Adjutant General's Department is 
+plainly not a federal agency. 
+Page Proof Pending Publication
+
+470 
+OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 
+Alito, J., dissenting 
+II 
+Because no petitioner is an “agency” within the meaning 
+of § 7105(g)(3), I would reverse the judgment of the Sixth 
+Circuit and hold that petitioners fall outside the remedial 
+jurisdiction of the FLRA. I respectfully dissent from the 
+Court's contrary conclusion. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 450, line 10 from bottom, “Reports” is replaced with “Relations” 
+p. 454, line 15, “No.” is inserted after “Order” 
+p. 458, line 20, “No.” is inserted after “Order” 
+p. 460, line 6, “Reports” is replaced with “Relations” 
+p. 467, line 6 from bottom, “Reports” is replaced with “Relations” 
diff --git a/corpus/law/text/d58b044c88d730a2.txt b/corpus/law/text/d58b044c88d730a2.txt
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index 0000000000000000000000000000000000000000..fc84f23519df9f013bca506c140545f4355ba5fc
--- /dev/null
+++ b/corpus/law/text/d58b044c88d730a2.txt
@@ -0,0 +1,3 @@
+Grounds for Criminalistic Classification of Crimes against Human Life and Health Committed by Convicts Serving Imprisonment Sentences in Places of Deprivation of Liberty
+
+Introduction: the article considers grounds for criminalistic classification of crimes causing intentional injuries committed by convicts serving sentences in places of deprivation of liberty. Purpose: based on the analysis and generalization of theoretical and practical materials, an attempt is made to formulate the most characteristic grounds for the criminalistic classification of the analyzed criminal acts and reveal their contents. Methods: the dialectical method of cognition, general scientific methods of analysis and generalization, empirical methods of description, interpretation; theoretical methods of formal and dialectical logic are used in the research. Results: the article reveals in detail the content of general (territory, situation, community of correctional institutions; prevalence of informal norms of behavior in places of deprivation of liberty, which most convicts adhere to) and private grounds (specifics of personality traits of a criminal, victim and witnesses; specifics of behavior before and after crime commission) for classification of crimes that make up the group for which the investigation method will be worked out. Conclusions: based on the available research, which highlights the universal basis – the criminal legal object, it is concluded that there are two groups of grounds (general and special) for classification of crimes causing intentional harm to life and health committed by convicts serving imprisonment sentences.
\ No newline at end of file
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@@ -0,0 +1,2440 @@
+PRELIMINARY PRINT 
+Volume 604 U. S. Part 1 
+Pages 226–304 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+February 25, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+226 
+OCTOBER TERM, 2024 
+Syllabus 
+GLOSSIP v. OKLAHOMA 
+certiorari to the court of criminal appeals of 
+oklahoma 
+No. 22–7466. Argued October 9, 2024—Decided February 25, 2025 
+In 1997, Justin Sneed beat Barry Van Treese to death with a baseball bat 
+at an Oklahoma hotel owned by Van Treese and managed by petitioner 
+Richard Glossip. Glossip initially made inconsistent statements to the 
+police about Sneed's role in the murder, but he ultimately told police 
+that Sneed admitted to killing Van Treese. Sneed later claimed Glossip 
+had asked him to murder Van Treese because, among other things, 
+Glossip had wanted to steal Van Treese's money. Glossip maintained 
+his innocence and refused a plea deal that would have had him avoid the 
+death penalty in return for testifying against Sneed. Sneed then testi­
+fed against Glossip at trial in exchange for avoiding the death penalty, 
+and Sneed's testimony was the only direct evidence connecting Glossip 
+to the murder. The jury convicted Glossip and sentenced him to death. 
+The Oklahoma Court of Criminal Appeals (OCCA) overturned that con­
+viction because the defense had been ineffective in challenging Sneed's 
+testimony and the remainder of the evidence only weakly corroborated 
+Sneed's account. At the retrial, Sneed provided inconsistent testimony 
+on potential motives for Glossip's murder. Sneed also denied that he 
+had been prescribed lithium or seen a psychiatrist. After the defense 
+established (through the State's medical examiner) that Van Treese had 
+been attacked with a knife as well as a bat, Sneed testifed that he had 
+repeatedly tried to stab Van Treese in the chest with a pocket knife. 
+But Sneed had previously denied stabbing Van Treese both when ques­
+tioned by the police as well as at Glossip's frst trial. Glossip moved for 
+a mistrial based on the prosecution's failure to notify the defense about 
+Sneed's change in testimony, which the trial court denied after the 
+prosecution disclaimed any knowledge about the change. Glossip was 
+again convicted and sentenced to death, and a closely divided OCCA 
+affrmed, holding that circumstantial evidence suggesting Glossip had 
+mismanaged the hotel, combined with Glossip's concession that he had 
+been dishonest in his initial statements after the murder, suffciently 
+corroborated Sneed's testimony that he killed Van Treese at Glossip's 
+direction. 
+Glossip subsequently fled several unsuccessful habeas petitions. 
+Concerns over the integrity of his conviction led a bipartisan group of 
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+227 
+Syllabus 
+Oklahoma legislators to commission an independent investigation by a 
+law frm, Reed Smith. In June 2022, Reed Smith reported “grave 
+doubt” about Glossip's conviction, citing factors such as the prosecution's 
+deliberate destruction of key evidence and the false portrayal of Justin 
+Sneed as a non-violent “puppet.” The State then disclosed seven boxes 
+of previously withheld documents, including letters suggesting Sneed 
+had considered recanting and a note from prosecutor Connie Smother­
+mon to Sneed's lawyer noting they should “get to” Sneed to discuss his 
+problematic testimony about a knife found in Van Treese's room. 
+Glossip fled for post-conviction relief based on this evidence and evi­
+dence revealed by Reed Smith. Glossip also argued that, during his 
+second trial, Smothermon had interfered with Sneed's testimony about 
+the knife in violation of the rule of sequestration, which prohibits wit­
+nesses from hearing each other's testimony. Oklahoma waived any pro­
+cedural defenses to Glossip's claims, and asked the OCCA to deny the 
+claims on their merits. The OCCA denied Glossip's claims as procedur­
+ally barred and meritless. 
+The State then discovered additional documents revealing that Sneed 
+had been diagnosed with bipolar disorder and prescribed lithium, contra­
+dicting his trial testimony. The attorney general determined that 
+Smothermon had knowingly elicited false testimony from Sneed and 
+failed to correct it, violating Napue v. Illinois, 360 U. S. 264, which held 
+that prosecutors have a constitutional obligation to correct false testi­
+mony. Glossip fled a successive petition for post-conviction relief, 
+which the attorney general supported, conceding multiple errors that 
+warranted a new trial. The OCCA denied the unopposed petition with­
+out a hearing, holding that Glossip's claims were procedurally barred 
+under Oklahoma's Post-Conviction Procedures Act (PCPA), and further 
+that the State's concession was not “based in law or fact” because it did 
+not create a Napue error. This Court stayed Glossip's execution and 
+granted certiorari. 
+Held: 
+1. This Court has jurisdiction to review the OCCA's judgment. The 
+independent and adequate state ground doctrine precludes the Court 
+from considering a federal question if the state court's decision rests on 
+an independent and adequate state-law ground. The OCCA's applica­
+tion of the PCPA was not such a ground, because the OCCA's decision 
+to apply the PCPA depended on its antecedent rejection of the attorney 
+general's confession of a Napue error, which was based solely on federal 
+law. The OCCA held that the confession could not overcome the 
+PCPA's limitations because it lacked a basis in law or fact, specifcally 
+fnding no Napue error. 
+
+Page Proof Pending Publication
+228 
+GLOSSIP v. OKLAHOMA 
+Syllabus 
+Oklahoma precedent confrms that the OCCA normally rejects an at­
+torney general's confession of error only after fnding it unsupported by 
+law and the record. By making the application of the PCPA contingent 
+on its determination that the attorney general's confession of federal 
+constitutional error was baseless, the OCCA made the procedural bar 
+dependent on an antecedent ruling on federal law. To the extent that 
+the OCCA's reasoning on this point is insuffciently “clear from the face 
+of the opinion,” the Court presumes reliance on federal law under Mich­
+igan v. Long, 463 U. S. 1032, 1040–1041. Pp. 242–246. 
+2. The prosecution violated its constitutional obligation to correct 
+false testimony. Pp. 246–258. 
+(a) Under Napue, a conviction obtained through the knowing use 
+of false evidence violates the Fourteenth Amendment's Due Process 
+Clause. To establish a Napue violation, a defendant must show that 
+the prosecution knowingly solicited or allowed false testimony to go 
+uncorrected. If a violation is established, a new trial is warranted if 
+the false testimony could in any reasonable likelihood have affected the 
+jury's judgment; meaning, ordinarily, that the prosecution must estab­
+lish harmlessness beyond a reasonable doubt. United States v. Bagley, 
+473 U. S. 667, 680, n. 9; Chapman v. California, 386 U. S. 18, 24. Here, 
+Oklahoma's attorney general joins Glossip in asserting a Napue error, 
+conceding that Sneed's testimony about his lithium prescription was 
+false and that the prosecution knowingly failed to correct it. The rec­
+ord supports that confession of error. Evidence showed that Sneed was 
+prescribed lithium to treat bipolar disorder, not after asking for cold 
+medicine as he claimed at trial. The evidence likewise establishes that 
+the prosecution knew Sneed's testimony was false. The prosecution al­
+most certainly had access to Sneed's medical fle through Sneed's compe­
+tency evaluation. And Smothermon's notes show that she had a pre­
+trial conversation with Sneed at which he mentioned “lithium” and “Dr. 
+Trumpet.” The straightforward inference is that Smothermon was 
+aware before trial that Sneed had received his lithium prescription from 
+Dr. Trombka, a psychiatrist and the sole medical professional at the 
+Oklahoma County jail authorized to prescribe lithium. 
+Because Sneed's testimony was the only direct evidence of Glossip's 
+guilt, the jury's assessment of Sneed's credibility was material and nec­
+essarily determinative. Correcting Sneed's lie would have undermined 
+his credibility and revealed his willingness to lie under oath. The false 
+testimony also bore on Glossip's guilt because evidence of Sneed's bipo­
+lar disorder, which could trigger impulsive violence when combined with 
+his drug use, would have contradicted the prosecution's portrayal of 
+Sneed as harmless without Glossip's infuence. Hence there is a reason­
+
+Cite as: 604 U. S. 226 (2025) 
+229 
+Syllabus 
+able likelihood that correcting Sneed's testimony would have affected 
+the judgment of the jury. Napue, 360 U. S., at 271. Additional prose­
+cutorial misconduct, such as violating the rule of sequestration, destroy­
+ing evidence, and withholding witness statements, further undermines 
+confdence in the verdict. Consequently, the prosecution's failure to 
+correct Sneed's false testimony entitles Glossip to a new trial under 
+Napue. Pp. 246–252. 
+(b) The OCCA's contrary holding rests on a mistaken interpretation 
+of Napue. The OCCA held that there was no violation because the 
+defense was aware or should have been aware that Sneed was taking 
+lithium. But Sneed's false testimony concerned the reasons for his pre­
+scription, not merely the fact that he had taken lithium. Moreover, the 
+Due Process Clause imposes the duty to correct false testimony on the 
+State, not the defense. The OCCA's holding that Sneed was likely in de­
+nial of his mental health disorders is beside the point; what matters is that 
+the testimony was false and the prosecutor knowingly allowed it to stand. 
+Additional arguments in support of the OCCA's position are unpersua­
+sive. Napue does not require that the false testimony itself must have 
+directly affected the trial's outcome; Napue requires assessing whether 
+the prosecutor's failure to correct the testimony could have contributed 
+to the verdict. Also unpersuasive are arguments based on extra-record 
+materials and insuffcient time spent interviewing the prosecutor. 
+Because the attorney general's confession of error is supported by 
+ample evidence, the Court declines to remand this case for further evi­
+dentiary proceedings. When the Court has jurisdiction, a new trial is 
+the appropriate remedy for a violation of Napue. Pp. 252–258. 
+529 P. 3d 218, reversed and remanded. 
+Sotomayor, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Kagan, Kavanaugh, and Jackson, JJ., joined, and in which 
+Barrett, J., joined as to Part II. Barrett, J., fled an opinion concur­
+ring in part and dissenting in part, post, p. 258. Thomas, J., fled a dis­
+senting opinion, in which Alito, J., joined, and in which Barrett, J., 
+joined as to Parts IV–A–1, IV–A–2, and IV–A–3, post, p. 262. Gorsuch, 
+J., took no part in the consideration or decision of the case. 
+Seth P. Waxman argued the cause for petitioner. With 
+him on the briefs were Catherine M. A. Carroll, Zaki 
+Anwar, Donald R. Knight, Amy P. Knight, John R. Mills, 
+and Joseph J. Perkovich. 
+Paul D. Clement argued the cause for respondent under 
+this Court's Rule 12.6. With him on the briefs were Gentner 
+F. Drummond, Attorney General of Oklahoma, Garry M. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+230 
+GLOSSIP v. OKLAHOMA 
+Syllabus 
+Gaskins II, Solicitor General, Matthew D. Rowen, and Jo­
+seph J. DeMott. 
+Christopher G. Michel, by invitation of the Court, 601 U. S. 
+1010, argued the cause and fled a brief as amicus curiae in 
+support of the judgment below. With him on the brief were 
+Rachel G. Frank, Alex Van Dyke, and Nicholas J. Caluda.* 
+*Briefs of amici curiae urging reversal were fled for the District of 
+Columbia et al. by Brian L. Schwalb, Attorney General of the District 
+of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, 
+Principal Deputy Solicitor General, Graham E. Phillips, Deputy Solicitor 
+General, and Elissa R. Lowenthal, Assistant Attorney General, and by 
+the Attorneys General for their respective States as follows: Philip J. 
+Weiser of Colorado, Kwame Raoul of Illinois, Anthony G. Brown of Mary­
+land, Andrea Joy Campbell of Massachusetts, Keith Ellison of Minnesota, 
+Aaron D. Ford of Nevada, Matthew J. Platkin of New Jersey, Raúl Torrez 
+of New Mexico, Letitia James of New York, and Ellen F. Rosenblum of 
+Oregon; for the American Civil Liberties Union et al. by William R. 
+Weaver, David D. Cole, Brian W. Stull, Randy Alan Bauman, and Megan 
+Lambert; for Former Members of the Oklahoma Death Penalty Review 
+Commission by Carter G. Phillips, Virginia A. Seitz, and Jacqueline G. 
+Cooper; for the Innocence Project by Andrianna D. Kastanek; for the 
+National Association of Criminal Defense Lawyers by Barbara E. Berg­
+man and Hassan Ahmad; for R. Michael Cassidy et al. by Meaghan 
+VerGow, Joshua Revesz, and Bruce A. Green; for Kenneth T. Cuccinelli 
+II, by Emmet T. Flood; and for Rep. Kevin McDugle et al. by Gregory 
+G. Garre. 
+Briefs of amici curiae were fled for the State of Texas by Ken Paxton, 
+Attorney General, Brent Webster, First Assistant Attorney General, 
+Aaron L. Nielson, Solicitor General, Philip A. Lionberger, Assistant 
+Solicitor General, and Matthew Ottoway and J. Andrew Mackenzie, Assist­
+ant Attorneys General; for the State of Utah et al. by Sean D. Reyes, 
+Attorney General of Utah, Stanford E. Purser, Solicitor General, Andrew 
+F. Peterson, Deputy Solicitor General, and Ginger Jarvis and Mark C. 
+Field, Assistant Solicitors General, and by the Attorneys General for their 
+respective States as follows: Treg R. Taylor of Alaska, Tim Griffn of 
+Arkansas, Liz Murrill of Louisiana, Austin Knudsen of Montana, Alan 
+Wilson of South Carolina, and Jonathan Skrmetti of Tennessee; for the 
+Criminal Justice Legal Foundation by Kent S. Scheidegger; for Current 
+and Former State and Federal Prosecutors by David A. Senior and Ann 
+K. Tria; for Federal Courts Scholars by Melanie L. Bostwick, Thomas M. 
+
+Cite as: 604 U. S. 226 (2025) 
+231 
+Opinion of the Court 
+Justice Sotomayor delivered the opinion of the Court. 
+An Oklahoma jury convicted petitioner Richard Glossip of 
+paying Justin Sneed to murder Barry Van Treese and sen­
+tenced him to death. At trial, Sneed admitted he beat Van 
+Treese to death, but testifed that Glossip had offered him 
+thousands of dollars to do so. Glossip confessed he helped 
+Sneed conceal his crime after the fact, but he denied any 
+involvement in the murder. 
+Nearly two decades later, the State disclosed eight boxes 
+of previously withheld documents from Glossip's trial. 
+These documents show that Sneed suffered from bipolar dis­
+order, which, combined with his known drug use, could have 
+caused impulsive outbursts of violence. They also estab­
+lished, the State agrees, that a jail psychiatrist prescribed 
+Sneed lithium to treat that condition, and that the prosecu­
+tion allowed Sneed falsely to testify at trial that he had 
+never seen a psychiatrist. Faced with that evidence, Okla-
+homa's attorney general confessed error. Before the Okla­
+homa Court of Criminal Appeals (OCCA), the State conceded 
+that the prosecution's failure to correct Sneed's testimony 
+violated Napue v. Illinois, 360 U. S. 264 (1959), which held 
+that prosecutors have a constitutional obligation to correct 
+false testimony. The attorney general accordingly asked 
+the court to grant Glossip a new trial. The OCCA declined 
+to grant relief because, it held, the State's concession was 
+not “based in law or fact.” 2023 OK CR 5, ¶25, 529 P. 3d 
+218, 226. Because the prosecution violated its obligations 
+under Napue, we reverse the judgment below and remand 
+the case for a new trial. 
+I 
+A 
+Barry Van Treese owned a Best Budget Inn in Tulsa and 
+in Oklahoma City. Richard Glossip managed the Oklahoma 
+Bondy, and Katherine M. Kopp; and for Derek Van Treese et al. by Paul 
+G. Cassell. 
+Page Proof Pending Publication
+
+232 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+City hotel and lived there with his girlfriend. In the sum­
+mer of 1996, Justin Sneed and his stepbrother approached 
+Glossip and asked him about working for a room. 2 App. 
+648. Glossip agreed to let them stay in return for help with 
+maintenance and housekeeping. Sneed, however, had a his­
+tory of violence, angry outbursts, and substance abuse that 
+included marijuana, methamphetamine, cocaine, and acid. 
+Id., at 700–701. When, on January 6, 1997, Van Treese vis­
+ited the inn to collect cash deposits there, Sneed beat him to 
+death with a baseball bat. See 2007 OK CR 12, ¶¶4–5, 157 
+P. 3d 143, 147–148 (Glossip II). 
+After killing Van Treese, Sneed evaded law enforcement 
+for several days. Police did promptly interview Glossip, 
+who told them that Sneed had knocked on his door that night 
+with a bump on his head “like somebody punched him.” 
+App. to Response to Petitioner's Succ. Application for Post-
+Conviction Relief in No. PCD–2022–819, Tr. of Glossip Police 
+Interview 15 (Jan. 8, 1997). Glossip added that Sneed had 
+told him he slipped in the shower. Ibid. Glossip disclaimed 
+any knowledge of Van Treese's murder, but admitted that he 
+helped Sneed replace (from the outside) the broken window 
+of the room where Van Treese's body was later found. The 
+next day, offcers arrested Glossip in front of an attorney's 
+offce with approximately $1,700 in cash on him. 1 App. 291– 
+292. Glossip then admitted Sneed had told him “that he 
+killed Barry.” Tr. of Glossip Police Interview 10 (Jan. 9, 
+1997). When confronted with his prior inconsistent state­
+ments about the murder and Van Treese's whereabouts, 
+Glossip said that he had been scared to tell the truth because 
+he feared his failure to notify the police immediately meant 
+he was “already involved in it.” Id., at 29–30. 
+The State thereafter charged Sneed with capital murder 
+and Glossip as an accessory after the fact based on his inac­
+curate statements to the police. Eventually, police located 
+and interviewed Sneed, who had $1,680 in bloody cash on 
+him. See 14 Tr. 18 (May 28, 2004); 15 Tr. 170 (June 1, 2004). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+233 
+Opinion of the Court 
+The offcers told Sneed that before he “ma[de] up [his] mind 
+on anything” they wanted him “to hear some of the things” 
+they “[had] to say,” including that they did not think Sneed 
+had acted alone and that he should not “take the whole 
+thing” himself. 2 App. 645–646. “[E]verybody” was mak­
+ing Sneed “the scapegoat in this,” they told him—especially 
+Glossip, who was “putting it on [him] the worst.” Id., at 655. 
+Sneed initially responded to the offcers' prompts by at­
+tempting to implicate his brother, ibid., but eventually said 
+that Glossip had wanted to steal Van Treese's money and 
+that Van Treese's death had been the result of a robbery 
+gone wrong. Id., at 655–660. Sneed described breaking 
+into Van Treese's room and beating him with a baseball bat 
+until he “fgured he was knocked out.” Id., at 665. Accord­
+ing to Sneed, he then took Van Treese's car keys, stole an 
+envelope with approximately $4,000 in cash from his car, and 
+split the money with Glossip. Id., at 665–669. When off­
+cers pressed him on the state of Van Treese's body, Sneed 
+asserted that, “[a]ctually,” Glossip had asked him to kill Van 
+Treese so that he “could run the motel without him being 
+the boss.” Id., at 675. 
+Following Sneed's interview, Oklahoma charged Glossip, 
+too, with capital murder. The prosecution offered Glossip a 
+deal: plead guilty and avoid the death sentence in return for 
+testifying against Sneed. See App. to Pet. for Cert. in No. 
+22–6500, p. 144a. When Glossip refused, maintaining his in­
+nocence, the State offered Sneed the same deal, and Sneed 
+accepted. 2001 OK CR 21, ¶5, 29 P. 3d 597, 599 (Glossip I). 
+Sneed then testifed at Glossip's trial that he beat Van Treese 
+to death “because [Glossip] asked him to do it.” Ibid. 
+When asked whether there was any “particular reason why 
+[Glossip] wanted to kill [Van Treese]” that night, Sneed re­
+plied, “Not that I know of. Every time that Mr. Van Treese 
+showed up, [Glossip] was wanting me to kill him.” 6 Tr. 89 
+(June 8, 1998). In closing, the prosecution argued that 
+Glossip had asked Sneed to kill Van Treese because he be­
+
+234 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+lieved Van Treese planned to fre him for embezzling hotel 
+profts. 8 Tr. 14–15 (June 10, 1998). The jury convicted 
+Glossip and sentenced him to death. 
+The OCCA unanimously reversed. Sneed's testimony was 
+the only direct evidence connecting Glossip to the murder, it 
+held, and “[t]he evidence at trial tending to corroborate 
+Sneed's testimony was extremely weak.” Glossip I, 29 
+P. 3d, at 599. Defense counsel's failure to cross-examine 
+Sneed on his many inconsistent statements was therefore “so 
+ineffective” as to undermine any “confdence that a reliable 
+adversarial proceeding took place.” Ibid. 
+In 2004, after Glossip rejected another plea offer, 3 App. 
+720, the State tried him a second time. Several witnesses 
+confrmed what Glossip had told the police in his second in­
+terview: In the hours following Van Treese's killing, Glossip 
+feigned ignorance and lied about Van Treese's whereabouts. 
+As in the frst trial, however, only one witness, Justin Sneed, 
+testifed that Glossip was involved in anything more.1 
+This time, moreover, the defense established (through the 
+State's medical examiner) that Van Treese had been attacked 
+1 The dissent's narrative, which presents as historical fact the testimony 
+of the prosecution's witnesses at Glossip's second trial, relies heavily on 
+Sneed's testimony to suggest that Glossip directed the crime and an elabo­
+rate coverup. See post, at 262–267 (opinion of Thomas, J.). To the ex­
+tent the dissent relies on witnesses other than Sneed, their testimony con­
+frms no more than what Glossip himself admitted to the police. As for 
+Sneed's testimony, the dissent constructs its favored narrative from among 
+his multiple inconsistent accounts of the murder. See supra, at 232–235; 
+compare post, at 264 (dissent asserting that “Sneed left [Van Treese's 
+room] when he thought that he had killed Van Treese”), with 2 App. 665 
+(Sneed telling police he left Van Treese's room when he thought Van 
+Treese was “knocked out”); compare post, at 264 (dissent asserting Glossip 
+told Sneed “they would both be evicted if Glossip lost his job”), with 2 
+App. 655–665 (Sneed telling police that Van Treese's death was the acci­
+dental result of a robbery gone wrong), 6 Tr. 89 (June 8, 1998) (Sneed 
+testifying that he did not know why Glossip wanted him to kill Van 
+Treese), and 12 Tr. 75 (May 26, 2004) (Sneed testifying that Glossip had 
+wanted to rob Van Treese). 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+235 
+Opinion of the Court 
+with a knife as well as with a baseball bat. 1 id., at 239– 
+245. Although Sneed had denied stabbing Van Treese to the 
+police and at Glossip's frst trial, he now said that he had 
+repeatedly tried to stab Van Treese in the chest with a 
+pocket knife. Glossip II, 157 P. 3d, at 148–149. Because 
+the prosecution had not notifed the defense about this 
+change in testimony, Glossip moved for a mistrial. 12 Tr. 
+105 (May 26, 2004). The trial court denied that motion after 
+the prosecution attested that the change was news to them, 
+too. Id., at 107–108 (“The chest thing we're all hearing at 
+the same time”). 
+The prosecution also asked Sneed whether anyone had 
+prescribed him any medication: 
+“Q. After you were arrested, were you placed on any 
+type of prescription medication? 
+“A. When I was arrested I asked for some Sudafed be­
+cause I had a cold, but then shortly after that somehow 
+they ended up giving me Lithium for some reason, I don't 
+know why. I never seen no psychiatrist or anything. 
+“Q. So you don't know why they gave you that? 
+“A. No.” Id., at 64. 
+Sneed then confrmed that he used illegal drugs including 
+marijuana and “crank” (methamphetamine) “twice a week” 
+prior to his arrest. Id., at 64–65. Finally, Sneed testifed 
+about Glossip's purported motives for killing Van Treese. 
+He asserted that Glossip had suggested “robbing Barry of 
+his money,” id., at 75, that he had “told [Sneed] at one point 
+that with Mr. Van Treese out of the way . . . he would be 
+able not only [to] manage the motel on Council but also an­
+other one they had [in Tulsa],” id., at 89, and that he had 
+worried he “was going to get fred” because “a couple of the 
+rooms that were already supposed to be remodeled . . . 
+weren't,” id., at 95. 
+The prosecution weaved these suggestions into its closing 
+argument along with its original theory that Glossip had 
+Page Proof Pending Publication
+
+236 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+wanted Van Treese dead to avoid being fred for embezzle­
+ment. See 15 Tr. 65 (June 1, 2004) (arguing Glossip's motive 
+was “a big wad of around 4,000 bucks of American good Yan­
+kee dollars to split with the kid”); id., at 153, 163 (arguing 
+Glossip was going to be fred because of “missing money”); 
+id., at 164–165 (arguing Glossip was going to be fred because 
+of the condition of the rooms). It then argued that Sneed, 
+“satisfed and contented with [his] humble life,” id., at 68, 
+had no propensity to violence except at Glossip's direction: 
+“[I]t's as if Justin Sneed was a Rottweiler puppy, let's 
+say 11 months old, and Richard Glossip was the dog 
+trainer. You can sure sick a dog on somebody, but if 
+you're going to do that and you send a dog that's not 
+trained or is a little bit too young, he might trip and fall, 
+he might get scared and run away, he might do some­
+thing stupid, he might not do a good job. But no matter 
+how you slice it, no matter how you parse it, the person 
+that says `sick `em' is the person that makes the deci­
+sion.” Id., at 73. 
+The jury again convicted Glossip of capital murder and 
+again sentenced him to death. 
+A closely divided OCCA affrmed, holding that circumstan­
+tial evidence suggesting Glossip had mismanaged the hotel, 
+combined with the concession that Glossip had been dishon­
+est in his initial statements after the murder, suffciently cor­
+roborated Sneed's testimony that he killed Van Treese at 
+Glossip's direction. Glossip II, 157 P. 3d, at 151–153. In 
+dissent, Judge Chapel and Judge A. Johnson argued that the 
+majority “overstate[d] the strength of the accomplice corrob­
+oration evidence.” Id., at 164–165, 175. 
+B 
+Glossip continued to maintain his innocence in the years 
+after his conviction, fling several habeas petitions in state 
+and federal court. Although that litigation did not result 
+in relief, mounting concerns over the integrity of Glossip's 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+237 
+Opinion of the Court 
+conviction drew the attention of the Oklahoma Legislature. 
+A bipartisan group of 62 Oklahoma legislators retained a law 
+frm, Reed Smith, to conduct an independent investigation 
+into the case. Pet. for Cert. 12; App. to Pet. for Cert. 390a– 
+391a. In June 2022, Reed Smith reported its “grave doubt 
+as to the integrity of Glossip's murder conviction and death 
+sentence.” Independent Investigation of State v. Richard E. 
+Glossip 6 (June 7, 2022). Among other things, Reed Smith 
+concluded the prosecution had deliberately destroyed “key 
+physical evidence” before Glossip's retrial, including several 
+items from the crime scene and the inn's receipts and deposit 
+books, which could have helped Glossip address the accusa­
+tions of embezzlement. Id., at 7, 9, n. 25, 34, 48. Reed 
+Smith further concluded that the State had “falsely por­
+trayed Sneed at trial as a meek and non-violent `puppet,' ” 
+id., at 10, and that key testimony about Glossip's motive and 
+actions on the morning after the murder had been provided 
+by a former police offcer of “ `very limited honesty and in­
+tegrity' ” who was jailed for making false statements shortly 
+after Glossip's second trial, id., at 6–12. 
+Two months after Reed Smith's report, the State disclosed 
+seven boxes of previously withheld documents from Glossip's 
+trials. Those boxes contained a note the head prosecutor, 
+Connie Smothermon, sent to Sneed's lawyer before Sneed 
+testifed at the second trial. Smothermon's note concerned 
+“a few items that have been testifed to that I needed to 
+discuss with Justin,” including the “biggest problem,” which 
+(the note said) was “still the knife.” 3 App. 953. The exam­
+iners' testimony about the knife was problematic, Smother-
+mon's note explained, because “Justin [told] the police that 
+the knife fell out of his pocket and that he didn't stab the 
+victim with it,” yet the victim had “ `lacerations' ” consistent 
+with the “knife blade.” Ibid. It did not “make much sense” 
+to Smothermon, moreover, “that Justin could have control of 
+the bat and a knife” on his own. Ibid. “[W]e should get to 
+him this afternoon,” the note concluded. Ibid. 
+
+238 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+The boxes further contained letters from Sneed to his at­
+torney suggesting he had expressed a desire to recant his 
+testimony prior to Glossip's second trial. See id., at 811– 
+816. For example, in a letter dated May 15, 2003, Sneed 
+wrote to his attorney asking “ `do I have the choice of recant­
+ing my testimony at any time during my life,' ” and is “ `there 
+. . . anything you know, on [Glossip's] court date and about 
+re-canting.' ” Id., at 815 (emphasis deleted); App. to Pet. for 
+Cert. in Glossip v. Oklahoma, No. 22–6500, at 192a.2 
+Based on this new evidence and the evidence revealed by 
+Reed Smith, Glossip fled another motion for post-conviction 
+relief with the OCCA. Among other things, Glossip argued 
+that, during his second trial, Smothermon had interfered 
+with Sneed's testimony about the knife in violation of the 
+rule of sequestration, which prohibits witnesses from hear­
+ing each other's testimony. 3 App. 785–882. Oklahoma re­
+sponded that Glossip's claims were meritless, but that it 
+would nonetheless waive any procedural defenses in order to 
+mitigate the damage from a “media campaign” on Glossip's 
+behalf. Id., at 717–718. Oklahoma further asked the OCCA 
+to deny Glossip's claims on their merits so as “to trigger the 
+state court deference anticipated in [the Antiterrorism and 
+Effective Death Penalty Act]” in any future federal review. 
+Id., at 718, n. 7. Noting that it alone would “determine 
+whether the rules of this Court should be abandoned,” the 
+OCCA held that Glossip's claims were procedurally barred 
+as well as meritless. Id., at 775–783. 
+2 The dissent claims Sneed thought the phrase “ `recan[t] my testimony' ” 
+meant “ `refuse to testify,' ” post, at 272, n. 2, meaning (on the dissent's 
+view) Sneed asked his lawyer: “If I [testify] again, do I have the choice of 
+[refusing to testify] at any time during my life?” The dissent further 
+points to an interview Sneed gave decades later, where (with Glossip's 
+execution imminent) he denied ever “ `want[ing] to change the truth.' ” 
+Post, at 271, n. 2. Of course, Sneed's much later denials do not erase his 
+prior statements about recanting. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+239 
+Opinion of the Court 
+Shortly thereafter, the State “unearthed disturbing reve­
+lations about the contents of” an eighth box of trial docu­
+ments “consisting of material it previously prevented the de­
+fense from obtaining.” Brief for Respondent 10. “Buried 
+inside Box 8,” the State says, “was a page of notes handwrit­
+ten by Smothermon during a pretrial interview with Sneed,” 
+indicating “that Sneed had told Smothermon that he was `on 
+lithium' not by mistake, but in connection with a `Dr. Trum­
+pet.' ” Ibid. Oklahoma's attorney general “deduced the 
+import of these notes in short order”: Only a single psychia­
+trist worked in the Oklahoma County jail when Sneed was 
+held there, and his name was Dr. Larry Trombka. Ibid.; 
+see also 3 App. 930. A summary of Sneed's medical records 
+(previously withheld from Glossip's counsel after motion 
+practice seeking their discovery) showed that Sneed had re­
+ceived lithium to treat his undisclosed bipolar disorder. 
+Brief for Respondent 10; 3 App. 1005. After this discovery, 
+Dr. Trombka signed an affdavit attesting that he was the 
+only medical professional at the jail who would have pre­
+scribed Sneed lithium. Id., at 1003. 
+The attorney general accordingly determined that Sneed 
+“was not in fact mis-prescribed lithium, but rather diagnosed 
+with bipolar disorder and treated with lithium under the care 
+of a psychiatrist”—and “despite her knowledge of these 
+facts,” Smothermon “elicited false testimony from Sneed” on 
+that subject. Brief for Respondent 11.3 
+3 Also included in Box 8 were prosecutors' witness interview notes sug­
+gesting the State may have omitted certain details from the summaries it 
+turned over to the defense. For example, one witness apparently told the 
+prosecution that Glossip had sold him a big screen TV and a couch for 
+$900, 3 App. 952—a sum that would account for much of the cash Glossip 
+had on his person at his arrest. That same witness testifed at trial that 
+he did not know how much money Glossip had received for those sales. 1 
+id., at 286. Glossip's girlfriend later explained in a post-trial affdavit that 
+Glossip had been selling their possessions to pay for an attorney. 2 id., 
+at 706. 
+Page Proof Pending Publication
+
+240 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+The attorney general thereafter disclosed Box 8 to Glossip 
+and retained an independent counsel to conduct another re­
+view of Glossip's conviction. As relevant here, the inde­
+pendent counsel concluded that Smothermon's attempt to in­
+terfere with Sneed's testimony about the knife violated the 
+rule of sequestration, that her failure to turn over Sneed's 
+statements about his mental health treatment violated 
+Brady v. Maryland, 373 U. S. 83 (1963), and that her failure 
+to correct Sneed's false trial testimony that he had been 
+given lithium after asking for cold medicine violated Napue, 
+360 U. S. 264. App. to Pet. for Cert. 50a, 58a. His report 
+concluded: 
+“[T]he State must vacate Glossip's conviction due to its 
+decades-long failure to disclose what I believe is Brady 
+material, correct what I believe was false trial testi­
+mony of its star witness, and what I believe was a viola­
+tion of the Court ordered Rule of Sequestration of wit­
+nesses. . . . In my view, this case is also permeated by 
+failures to secure, safeguard and maintain evidence in a 
+capital murder case.” Id., at 62a. 
+Following the Box 8 disclosure and the independent coun­
+sel's recommendation, Glossip fled a successive petition for 
+post-conviction relief with the OCCA asserting Brady, 
+Napue, cumulative error, and actual innocence claims.4 
+The 
+attorney general fled a “Response in Support of Petitioner's 
+Successive Application for Post-Conviction Relief.” 3 App. 
+973. Although the attorney general did not endorse Gloss­
+ip's actual innocence claim, he represented that his offce had 
+“concluded that Justin Sneed . . . made material misstate­
+ments to the jury regarding his psychiatric treatment and 
+4 The dissent faults Glossip for “ignor[ing] the lithium issue on direct 
+appeal” years earlier. Post, at 269. Glossip had no reason to know at 
+the time of his direct appeal that Smothermon knowingly failed to correct 
+Sneed's false testimony about why he had been given lithium, however, so 
+he would have had no occasion to raise his Napue or Brady claims then. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+241 
+Opinion of the Court 
+the reasons for his lithium prescription,” which the State 
+had failed to correct in violation of Napue. 3 App. 974. In 
+addition, the State indicated it was “concerned that there 
+were multiple and cumulative errors, such as violation of the 
+rule of sequestration and destruction of evidence, that when 
+taken together with Sneed's misstatements warrant” a new 
+trial. Ibid.; see also id., at 977 (“[T]he State believes 
+Glossip is entitled to post-conviction relief”); id., at 978 
+(State is “compelled, consistent with Napue,” to correct mis­
+statements); id., at 979 (“[T]he State requests that the Court 
+vacate Glossip's conviction and that the case be remanded to 
+the district court”). Because Oklahoma agreed with Glossip 
+on the pertinent facts, it did not request an evidentiary 
+hearing. 
+The OCCA denied Glossip's unopposed petition without a 
+hearing. It acknowledged the attorney general's request 
+that Glossip's conviction be vacated, noting that this conces­
+sion alone could not “directly” provide a ground for relief. 
+529 P. 3d, at 223. The court said the following about the 
+State's confession of Napue error: 
+“Glossip claims that the State failed to disclose evidence 
+of Justin Sneed's mental health treatment and that 
+Sneed lied about his mental health treatment to the jury. 
+Though the State in its response now concedes that this 
+alleged false testimony combined with other unspecifed 
+cumulative errors warrant postconviction relief, the con­
+cession alone cannot overcome the limitations on succes­
+sive post-conviction review. See 22 O.S. Supp. 2022, 
+§ 1089(D)(8). The State's concession is not based in law 
+or fact.” 529 P. 3d, at 226 (footnote omitted). 
+The OCCA then applied Oklahoma's Post-Conviction Proce­
+dures Act (PCPA) to hold that Glossip's claims were proce­
+durally barred. It concluded separately that the evidence 
+presented by the parties did not “create a Napue error.” 
+Ibid. (footnote omitted). 
+
+242 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+This Court thereafter stayed Glossip's execution at the 
+joint request of the parties and granted certiorari to consider 
+Glossip's Brady and Napue claims and the effect of the attor­
+ney general's confession of error.5 
+601 U. S. 999 (2024). 
+The Court also requested argument on an additional ques­
+tion: whether the OCCA's holding that the PCPA precluded 
+post-conviction relief is an adequate and independent state-
+law ground for the judgment. 
+Because Oklahoma agrees with Glossip on the merits of 
+his appeal, the Court appointed Christopher Michel as ami­
+cus curiae to defend the judgment below. 601 U. S. 1010 
+(2024). He has ably discharged his responsibilities. 
+II 
+A 
+We begin with this Court's jurisdiction to review the 
+OCCA's judgment. “ `This Court will not take up a question 
+of federal law presented in a case “if the decision of [the 
+state] court rests on a state law ground that is independent 
+of the federal question and adequate to support the judg­
+ment.” ' ” Cruz v. Arizona, 598 U. S. 17, 25 (2023) (quoting 
+Lee v. Kemna, 534 U. S. 362, 375 (2002)). “In the context of 
+direct review of a state court judgment, the independent and 
+adequate state ground doctrine is jurisdictional.” Coleman 
+v. Thompson, 501 U. S. 722, 729 (1991). A state ground of 
+decision is independent only when it does not depend on a 
+federal holding, Foster v. Chatman, 578 U. S. 488, 498 (2016), 
+and also is not intertwined with questions of federal law, 
+Michigan v. Long, 463 U. S. 1032, 1040–1041 (1983). 
+“[W]hen the adequacy and independence of any possible 
+state law ground is not clear from the face of the opinion, we 
+will accept as the most reasonable explanation that the state 
+5 Because the Court grants relief under Napue, the Court need not reach 
+the merits of Glossip's Brady claim. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+243 
+Opinion of the Court 
+court decided the case the way it did because it believed that 
+federal law required it to do so.” Ibid. 
+Amicus argues this Court lacks jurisdiction because the 
+OCCA held that Glossip's claims were barred under the 
+PCPA, and the PCPA is “a paradigmatic independent and 
+adequate state-law ground.” Brief for Court-Appointed 
+Amicus Curiae 13. That argument fails because it over­
+looks an antecedent holding that turned on federal law. The 
+OCCA frst rejected the attorney general's confession of 
+Napue error, deeming it meritless and therefore incapable of 
+“overcom[ing]” application of the PCPA. 529 P. 3d, at 226. 
+Only then did it apply the PCPA to Glossip. Because the 
+OCCA's decision to reject the attorney general's confession 
+of error rested exclusively on federal law, so too did its sub­
+sequent decision to apply the PCPA. 
+In his brief to the OCCA, the attorney general disclaimed 
+reliance on any procedural defenses, including the PCPA. 
+Instead, the attorney general “concede[d] error under 
+Napue,” 3 App. 978, acknowledging that, as a matter of fed­
+eral law, the prosecution's knowing failure to correct Sneed's 
+“material misstatements” entitled Glossip to a new trial. 
+Id., at 977, 978, 979. The OCCA held that this confession of 
+Napue error could not “overcome the [PCPA's] limitations on 
+successive post-conviction review” because it was “not based 
+in law or fact.” 529 P. 3d, at 226. Specifcally, the OCCA 
+concluded that the underlying evidence “d[id] not create a 
+Napue error.” Ibid. (footnote omitted). Thus, the OCCA's 
+application of the PCPA over the attorney general's confes­
+sion of error depended on its determination that no Napue 
+violation had occurred. That was a federal holding, and it 
+was the only reason the OCCA provided for its conclusion 
+that the attorney general's confession could not “overcome” 
+the PCPA. 529 P. 3d, at 226. The PCPA therefore poses 
+no impediment to our review in this case. 
+Oklahoma precedent involving confessions of error by an 
+attorney general confrms this reading. As the OCCA has 
+Page Proof Pending Publication
+
+244 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+repeatedly explained, it will normally reject an attorney 
+general's confession of error only after fnding that it lacks a 
+basis in the law and in the record. See, e. g., Bindrum v. 
+State, 27 Okla. Crim. 372, 228 P. 168 (1924) (“Where the At­
+torney General confesses error, th[e] court will examine the 
+record, and, if the confession is sustained thereby, and is well 
+founded in law, the conviction will be reversed” (syllabus by 
+the court)).6 
+Otherwise, if the confession of error is sup­
+ported by the law and the record, the OCCA will reverse 
+the underlying conviction and remand for a new trial.7 
+Ibid. 
+The OCCA applied that same rule here: It rejected the attor­
+ney general's confession of error as having no basis “in law 
+or fact,” and explained that it would therefore apply the 
+PCPA. 529 P. 3d, at 226. 
+In doing so, the OCCA “made application of the procedural 
+bar depend on an antecedent ruling on federal law, that is, 
+on the determination of whether federal constitutional error 
+ha[d] been committed.” Ake v. Oklahoma, 470 U. S. 68, 75 
+(1985). After all, it made application of the PCPA contin­
+6 See also Raymer v. State, 27 Okla. Crim. 398, 228 P. 500 (1924) (“Where 
+the Attorney General confesses error, th[e] court will examine the record, 
+and, if the confession is sustained thereby and is well founded in law, the 
+conviction will be reversed” (syllabus by the court)); Dorsett v. State, 16 
+Okla. Crim. 65, 69, 180 P. 557, 558 (1919) (reversing conviction because 
+“the confession of error [of the attorney general] is well founded” in law); 
+Whittemore v. State, 26 Okla. Crim. 338, 223 P. 890 (1924) (per curiam) 
+(same); Day v. State, 352 P. 2d 935 (OCCA 1960) (“Where the Attorney 
+General confesses error, Court of Criminal Appeals will examine the rec­
+ord, and, if confession is sustained thereby, and is well founded in law, 
+conviction will be reversed” (syllabus by the court)); Casey v. State, 440 
+P. 2d 208, 209 (OCCA 1968) (“When the Attorney General confesses error, 
+this Court will carefully examine the record for fundamental error”); Mc­
+Connell v. State, 485 P. 2d 764, 765 (OCCA 1971) (similar); One Ford Tour­
+ing Car v. State, 100 Okla. 267, 268, 229 P. 231, 232 (1924) (establishing 
+identical rule in civil forfeiture context). 
+7 The PCPA would not stand in the way of a reversal under this rule 
+because it is not a jurisdictional bar. See Valdez v. State, 2002 OK CR 
+20, ¶¶24–28, 46 P. 3d 703, 710. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+245 
+Opinion of the Court 
+gent on its determination that the attorney general's confes­
+sion of federal constitutional error had no basis in law or 
+fact. To the extent that the OCCA's reasoning on this point 
+is insuffciently “clear from the face of the opinion,” we none­
+theless presume reliance on federal law under Michigan v. 
+Long, 463 U. S., at 1040–1041. This Court therefore has ju­
+risdiction to review the judgment below. 
+B 
+The dissent dismisses all this as an “invent[ed] . . . federal 
+holding that the OCCA never made.” Post, at 279. As the 
+dissent sees it, the OCCA rejected the attorney general's 
+confession of error because (the dissent says) the State failed 
+adequately to address all of the PCPA's procedural require­
+ments. See post, at 280. The OCCA plainly held that the 
+attorney general's confession was “not based in law or fact,” 
+529 P. 3d, at 226, however, forcing the dissent to provide 
+an awkward explanation that this holding about a federal 
+confession of error on the merits was only about the PCPA's 
+state-law, procedural requirements. Post, at 280. Yet the 
+State expressly attempted to waive those procedural re­
+quirements by arguing that Glossip was entitled to a new 
+trial. 3 App. 979 (“[T]he State requests that the Court va­
+cate Glossip's conviction and that the case be remanded to 
+the district court”). So to explain away the “based in law 
+or fact” language, the dissent must proceed on the assump­
+tion that Oklahoma law requires applicants to satisfy the 
+PCPA's nonjurisdictional provisions even when the State 
+waives them and even if the State's confession of constitu­
+tional error is otherwise meritorious—notwithstanding the 
+many other contexts where the OCCA privileges meritorious 
+confessions of error. See n. 6, supra (collecting cases); App. 
+to Brief for National Association of Criminal Defense Law­
+yers as Amicus Curiae 1a–21a (cataloging the OCCA's deci­
+sions in the 298 confession-of-error cases predating Glossip's, 
+all of which resulted in relief). 
+Page Proof Pending Publication
+
+246 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+That assumption is hardly “clear from the face of the opin­
+ion” below. Long, 463 U. S., at 1041. Thus, we must “ac­
+cept as the most reasonable explanation that the state court 
+decided the case the way it did because it believed that fed­
+eral law required it to do so.” Ibid. 
+III 
+A 
+Turning to the merits, we conclude that the prosecution 
+violated its constitutional obligation to correct false 
+testimony. 
+In Napue v. Illinois, this Court held that a conviction 
+knowingly “obtained through use of false evidence” violates 
+the Fourteenth Amendment's Due Process Clause. 360 
+U. S., at 269. To establish a Napue violation, a defendant 
+must show that the prosecution knowingly solicited false tes­
+timony or knowingly allowed it “to go uncorrected when it 
+appear[ed].” Ibid. If the defendant makes that showing, a 
+new trial is warranted so long as the false testimony “may 
+have had an effect on the outcome of the trial,” id., at 272— 
+that is, if it “ `in any reasonable likelihood [could] have af­
+fected the judgment of the jury,' ” Giglio v. United States, 
+405 U. S. 150, 154 (1972) (quoting Napue, 360 U. S., at 271). 
+In effect, this materiality standard requires “ ` “the benef­
+ciary of [the] constitutional error to prove beyond a reason­
+able doubt that the error complained of did not contribute to 
+the verdict obtained.” ' ” United States v. Bagley, 473 U. S. 
+667, 680, n. 9 (1985) (quoting Chapman v. California, 386 
+U. S. 18, 24 (1967)). 
+Here, Oklahoma's attorney general joins Glossip in assert­
+ing a Napue error, conceding both that Sneed's testimony 
+was false and that the prosecution knowingly failed to cor­
+rect it. The record supports that confession of error. A 
+summary of Sneed's medical records created by the local 
+sheriff 's department establishes that someone diagnosed 
+Sneed with bipolar disorder and prescribed him lithium. 3 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+247 
+Opinion of the Court 
+App. 1005. Dr. Trombka, a psychiatrist, attested in a sworn 
+affdavit that he was the only medical professional at the 
+Oklahoma County jail who would have issued Sneed that pre­
+scription. Id., at 930–931. Dr. Trombka also confrmed, 
+and nobody contests, that lithium is used only in psychiatric 
+treatments and not for dental pain (as Sneed said at a pre­
+trial hearing) or a cold (as Sneed testifed at Glossip's trial). 
+Ibid. Nor would anyone confuse lithium with Sudafed, 
+which is a cold medication. Ibid. Sneed's trial testimony 
+that he had been given lithium after asking for Sudafed and 
+had “never seen no psychiatrist or anything” was therefore 
+false. 
+The evidence likewise establishes that the prosecution 
+knew Sneed's statements were false as he testifed to them. 
+The prosecution almost certainly had access to Sneed's medi­
+cal fle, which would have listed both the lithium prescription 
+and the bipolar diagnosis. Among other things, those rec­
+ords would have been provided to the State as part of 
+Sneed's competency evaluation, id., at 931, and the State op­
+posed Glossip's discovery request of Sneed's medical fles on 
+its merits, 2 id., at 622–623; 3 id., at 933. As amicus and 
+the dissent emphasize, moreover, “[l]ithium is prescribed 
+only for mood disorders.” Brief for Court-Appointed Ami­
+cus Curiae 14; post, at 268 (“It is undisputed that lithium's 
+sole medical purpose, both in 1997 and today, is to treat bipo­
+lar disorder and other mental health disorders”). Yet the 
+prosecution knew that Sneed had previously told a compe­
+tency evaluator that he had been prescribed lithium “after 
+his tooth was pulled,” 2 App. 700; that statement was part 
+of a competency record to which both the State and Glossip 
+had access, id., at 698–703. Prosecutors then heard Sneed 
+testify to a different version of events at trial: that the lith­
+ium had been given to him after he asked for Sudafed be­
+cause he had a cold. 1 id., at 312. 
+In addition, Smothermon's notes show that she had a pre­
+trial conversation with Sneed at which he mentioned “lith­
+
+248 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+ium” and “Dr. Trumpet.” 3 id., at 927. Glossip argues, and 
+the attorney general admits, that this shows Sneed told 
+Smothermon that Dr. Trumpet (meaning Dr. Trombka) had 
+prescribed him lithium. As just discussed, the record shows 
+that, in fact, Dr. Trombka did diagnose Sneed with bipolar 
+disorder and prescribe him lithium. Sneed plainly discussed 
+these matters with the prosecution. In that private conver­
+sation, he would have had little to gain from prevaricating 
+about his prescriptions, nor do the notes suggest he did any­
+thing of the kind. The straightforward inference is that 
+Sneed told Smothermon that Dr. Trombka had prescribed 
+him the lithium.8 
+That leaves materiality. Evidence can be material even if 
+it “goes only to the credibility of the witness,” Napue, 360 
+U. S., at 269; indeed, “[t]he jury's estimate of the truthfulness 
+and reliability of a given witness may well be determinative 
+of guilt or innocence,” ibid. Because Sneed's testimony was 
+the only direct evidence of Glossip's guilt of capital murder, 
+the jury's assessment of Sneed's credibility was necessarily 
+determinative here. Besides Sneed, no other witness and 
+no physical evidence established that Glossip orchestrated 
+Van Treese's murder. Thus, the jury could convict Glossip 
+only if it believed Sneed. 
+Had the prosecution corrected Sneed on the stand, his 
+credibility plainly would have suffered. That correction 
+would have revealed to the jury not just that Sneed was 
+untrustworthy (as amicus points out, the jury already knew 
+he repeatedly lied to the police), but also that Sneed was 
+8 The dissent claims Sneed instead repeated his prior false statement 
+that he had been given the lithium after having his tooth pulled. See 
+post, at 273, 274, n. 3, 286, n. 6, 302–303. Yet the dissent's only source for 
+this theory, Smothermon's co-counsel Gary Ackley, acknowledged under 
+oath that he knew lithium was not a pain medication, 3 App. 940, meaning 
+he would have known this story, too, to be wrong. In any event, even if 
+the prosecution did believe Sneed had been given lithium for a toothache, 
+that still would have put them on notice that Sneed's testimony at trial 
+(about receiving lithium after asking for cold medication) was false. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+249 
+Opinion of the Court 
+willing to lie to them under oath. Such a revelation would 
+be signifcant in any case, and was especially so here where 
+Sneed was already “nobody's idea of a strong witness.” 
+Brief for Court-Appointed Amicus Curiae 37. Even if 
+Sneed's bipolar disorder were wholly irrelevant, as amicus 
+argues, his willingness to lie about it to the jury was not. 
+“ `A lie is a lie, no matter what its subject.' ” Napue, 360 
+U. S., at 269–270 (quoting People v. Savvides, 1 N. Y. 2d 554, 
+557, 136 N. E. 2d 853, 854–855 (1956)). 
+Sneed's false testimony also bore on Glossip's guilt in a 
+more direct way. As Smothermon's co-counsel Gary Ackley 
+has conceded, it “would have been an important fact for the 
+defense to know” that Sneed had been prescribed lithium to 
+treat bipolar disorder. 3 App. 940. After the Box 8 disclo­
+sures, Dr. Trombka explained to Glossip's counsel that bipo­
+lar disorder symptoms “can be exacerbated by illicit drug 
+use, such as methamphetamine,” to “cause an individual to be 
+more paranoid or potentially violent.” Id., at 932. Sneed 
+admitted at trial that he regularly used drugs, including 
+methamphetamine. His diagnosis with a disorder that could 
+trigger impulsive violence when combined with drug use 
+thus would have undermined the prosecution's theory that 
+Sneed was harmless on his own—a Rottweiler puppy be­
+holden to his trainer. 15 Tr. 73 (June 1, 2004). That theory 
+was an important part of the prosecution's case and featured 
+prominently in its opening and closing statements. See, e.g., 
+3 Tr. 209 (May 13, 2004) (arguing in opening that Sneed was 
+“pretty content . . . to do whatever it is that Richard Glossip 
+wanted him to do”); 15 Tr. 69–74 (June 1, 2004) (emphasizing 
+in closing that Sneed would have never committed murder 
+without Glossip). Hence there is a reasonable likelihood 
+that correcting Sneed's testimony would have affected the 
+judgment of the jury. Napue, 360 U. S., at 271. 
+Amicus objects that “the jury already knew that Sneed 
+had been prescribed lithium, used illegal drugs, and behaved 
+impulsively; he admitted that he beat a man to death with a 
+Page Proof Pending Publication
+
+250 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+baseball bat in the middle of the night with no advanced 
+planning.” Brief for Court-Appointed Amicus Curiae 36. 
+As amicus sees it, the additional evidence provided by 
+Sneed's lie and his treatment for bipolar disorder could 
+hardly have made a difference in light of so much other im­
+peaching evidence. Id., at 36–37. Of course, at trial, the 
+prosecution urged the jury to believe just the opposite: that 
+despite his prior dishonesty and violence, Sneed was now 
+telling the truth. See, e. g., 15 Tr. 153–155 (June 1, 2004). 
+A prosecutor's midtrial revelation that Sneed lied on the 
+stand would have signifcantly undercut that argument. 
+In any event, amicus's position is self-defeating. If the 
+evidence impeaching Sneed's credibility was already over­
+whelming, then no reasonable jury could have convicted 
+Glossip in the frst place, given that the prosecution's case 
+rested centrally on Sneed's credibility. Amicus appears to 
+assume the jury would have believed Sneed no matter what. 
+Such an assumption has no place in a materiality analysis, 
+which asks what a reasonable decisionmaker would have 
+done with the new evidence. See Wearry v. Cain, 577 U. S. 
+385, 393–394 (2016) (per curiam) (rejecting argument that 
+evidence was immaterial because witness's credibility was 
+“already impugned”); cf. Strickland v. Washington, 466 U. S. 
+668, 695 (1984). 
+Although the prosecution's failure to correct Sneed's false 
+testimony was a material Napue violation on its own, addi­
+tional conduct by the prosecution further undermines conf­
+dence in the verdict. The attorney general has confessed 
+to “ `violation of the rule of sequestration' ” with respect to 
+Smothermon's apparent midtrial attempt to speak with 
+Sneed about the knife, as well as to “ `destruction of evi­
+dence,' ” including the hotel's fnancial records and items 
+Glossip and Sneed allegedly handled in Van Treese's room. 
+See Brief for Respondent 13; 3 App. 935 (prosecutor Ackley 
+attesting under oath that “I was informed that a box of evi­
+dence containing 10 items was destroyed by the Oklahoma 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+251 
+Opinion of the Court 
+City Police Department. . . . It is likely that I was aware of 
+that fact during the 2004 retrial . . . . That this happened 
+horrifes me”); Independent Investigation of State v. Richard 
+E. Glossip, at 7, 12–13, 41–43 (cataloging destroyed items). 
+In addition, the eight boxes of documents released to Glossip 
+included statements from Sneed evincing a desire to recant 
+his testimony and witness notes with details not previously 
+turned over to the defense. For example, the fles suggest 
+one witness told the prosecution (contrary to his trial testi­
+mony) that Glossip sold him a couch and a TV for $900. 3 
+App. 952. That evidence would have supported Glossip's ac­
+count of the cash he carried at his arrest outside an attor­
+ney's offce: that he had sold his possessions to pay for an 
+attorney. See 2 id., at 706. Because prejudice analysis re­
+quires a “cumulative evaluation” of all the evidence, whether 
+or not that evidence is before the Court in the form of an 
+independent claim for relief, these documents reinforce our 
+conclusion that the Napue error here prejudiced the defense. 
+Kyles v. Whitley, 514 U. S. 419, 441 (1995).9 
+9 The dissent's attempts to minimize these issues are unpersuasive. 
+Sneed's letter inquiring about “ `the choice of recanting my testimony,' ” 3 
+App. 815, disproves the dissent's assertion that “there is no evidence that 
+Sneed wished to `recant' his testimony.” Post, at 293. That Glossip re­
+called receiving only $490 for his possessions during his frst trial does 
+not absolve the prosecution from its ordinary duty to disclose inconsistent 
+statements by its witnesses. Contra, ibid. The State's conceded seques­
+tration violation also is not merely an insignifcant state-law issue, post, 
+at 292; like any other attorney, a prosecutor may not seek to infuence the 
+content of a witness's testimony. See, e. g., Geders v. United States, 425 
+U. S. 80, 90, n. 3 (1976) (“An attorney must respect the important ethical 
+distinction between discussing testimony and seeking improperly to in­
+fuence it”). The dissent labors to discredit certain “handwritten notes” 
+on which neither Glossip nor this Court relies, see post, at 293, n. 8, but 
+Smothermon undisputedly wrote to Sneed's counsel that she needed to 
+“get to” him “to discuss” his problematic testimony about the knife. 3 
+App. 953. The next day, Sneed's testimony corrected the very problem 
+raised by Smothermon's letter. Smothermon nonetheless disclaimed any 
+knowledge of Sneed's change in testimony when Glossip objected. 12 Tr. 
+Page Proof Pending Publication
+
+252 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+For these reasons, we conclude that the prosecution's fail­
+ure to correct Sneed's trial testimony violated the Due Proc­
+ess Clause. Glossip is entitled to a new trial. 
+B 
+The OCCA's contrary holding rested on a mistaken inter­
+pretation of Napue. According to the OCCA, there was no 
+violation because the defense “was aware or should have 
+been aware that Sneed was taking lithium at the time of 
+trial,” and the prosecution could not have “knowingly con­
+cealed” something the defense already knew. 529 P. 3d, at 
+226. As an initial matter, Sneed's false testimony concerned 
+the reasons for his lithium prescription, not the mere fact 
+that he had taken it. Glossip's counsel was aware of the 
+latter, not of the former. In any event, the Due Process 
+Clause imposes “ `the responsibility and duty to correct' ” 
+false testimony on “representatives of the State,” not on de­
+fense counsel. Napue, 360 U. S., at 269–270 (quoting Sav­
+vides, 1 N. Y. 2d, at 557, 136 N. E., at 854). 
+The OCCA also held that Sneed's testimony was not 
+“clearly false” because Sneed was “more than likely in denial 
+of his mental health disorders.” 529 P. 3d, at 226, 227. It 
+is not apparent why the OCCA thought Sneed was in denial, 
+nor why such denial should have caused Sneed to believe 
+that he had never seen a psychiatrist, when in fact he had. 
+Even supposing it did, however, Sneed's beliefs are beside 
+the point. What matters is that his testimony was false and 
+a prosecutor knowingly let it stand nonetheless. Napue, 360 
+U. S., at 269 (“[I]t is established that a conviction obtained 
+through use of false evidence, known to be such by repre­
+sentatives of the State, must fall under the Fourteenth 
+Amendment”). 
+107–108 (May 26, 2004). Finally, not even the original prosecutors dispute 
+that the police destroyed key evidence before Glossip's retrial; the dissent 
+nonetheless dismisses that claim, undisputed for over two decades, as this 
+Court's “own creation.” Post, at 292–293. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+253 
+Opinion of the Court 
+The dissent's arguments in support of the OCCA's conclu­
+sions fare no better. As an initial matter, even the dissent 
+does not dispute that Sneed falsely testifed he had never 
+seen a psychiatrist. See post, at 290 (suggesting Sneed 
+“misremembered” that a psychiatrist prescribed him lithium 
+to treat bipolar disorder). The dissent does maintain that 
+other aspects of Sneed's statement were true, noting that 
+because Sneed was in denial about his diagnosis, his “state­
+ment about his own knowledge was not false.” Post, at 291. 
+Sneed's statement that he asked for “Sudafed” to treat “a 
+cold” and was given lithium instead, 12 Tr. 64 (May 26, 2004), 
+was not, however, a statement “about his own knowledge.” 
+Even if Sneed himself did not believe that he suffered from 
+bipolar disorder, moreover, that would not render true his 
+assertion that he had no idea why his doctor thought he 
+needed lithium. 
+The dissent next claims that the false testimony must itself 
+have directly affected the trial's outcome to be material 
+under Napue. Post, at 288 (“[T]he relevant inquiry under 
+Napue is whether the content of the false testimony at issue 
+is material”). As Napue made clear, however, “ `[a] lie is a 
+lie, no matter what its subject.' ” 360 U. S., at 269–270 
+(quoting Savvides, 1 N. Y. 2d, at 557, 136 N. E. 2d, at 854– 
+855). Nothing in Napue requires ignoring the fact of 
+Sneed's perjury in the prejudice analysis. To the contrary, 
+materiality instead always requires courts to assess whether 
+“the error complained of” could have contributed to the ver­
+dict. Chapman, 386 U. S., at 24; Bagley, 473 U. S., at 680, 
+n. 9. Here, the prosecutor's failure to correct Sneed's false 
+testimony is the relevant error, so the Court asks whether a 
+correction could have made a material difference. The an­
+swer is clearly yes. See supra, at 247–252.10 
+10 The dissent also argues Sneed's lithium use was immaterial because 
+“the defense chose not to turn” it “into an impeachment issue,” post, at 288, 
+but each premise in that argument is mistaken. First, the defense did not 
+choose “not to raise Sneed's mental condition,” post, at 287; they asked him 
+Page Proof Pending Publication
+
+254 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+The remaining arguments offered in defense of the OCCA's 
+position are likewise unpersuasive. In an amicus brief, the 
+Van Treese family argues that it was Glossip's counsel who 
+asked Sneed about his lithium prescription, and that Smoth­
+ermon's notes reveal only that Sneed relayed those questions 
+to Smothermon. See Brief for Victim Family Members as 
+Amici Curiae 7–22. That argument relies heavily on extra-
+record materials not properly before the Court, including a 
+recent unsworn statement from Smothermon adopting the 
+family's interpretation of the notes. (The dissent, which 
+criticizes the independent counsel for “impugning” the trial 
+prosecutors' reputation, post, at 276, justifes its reliance on 
+these materials by accusing the Oklahoma attorney general 
+of “collusively exclud[ing]” them from the record, see post, 
+at 303.) Nor would accepting the family's account change 
+the Napue analysis. Whatever the impetus for the conver­
+sation, the family agrees that Sneed and Smothermon dis­
+cussed Dr. Trombka and lithium. The natural inference is 
+that Sneed explained to Smothermon the circumstances that 
+led to his lithium use. To avoid that inference, the family in 
+turn suggests both that Sneed was never diagnosed with bi­
+polar disorder in the frst place, Brief for Victim Family 
+Members as Amici Curiae 17, and that Glossip's counsel 
+“knew about [Dr. Trombka] more than two decades ago,” id., 
+at 21. Yet for the reasons previously explained, defense 
+counsel's purported knowledge of Dr. Trombka's existence is 
+irrelevant, and the prison medical record supports the attor­
+about it in cross-examination and Sneed repeated his false testimony. See 
+13 Tr. 15 (May 27, 2004). Second, the defense did not know during trial 
+that Sneed had been diagnosed with bipolar disorder; to the contrary, 
+Glossip later sought (and the State successfully opposed) discovery on that 
+issue. 2 App. 621–622. Third, even if the defense had made a conscious 
+choice not to raise the (then-uncertain) reasons for Sneed's lithium use, 
+that would be irrelevant to the prosecution's duty to correct false testi­
+mony “when it appears.” Napue, 360 U. S., at 269. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+255 
+Opinion of the Court 
+ney general's concession that Sneed received a lithium pre­
+scription as treatment for his bipolar disorder. 
+The family also maintains (and the dissent agrees) that 
+Reed Smith and the independent counsel spent insuffcient 
+time interviewing Smothermon. Neither the family nor 
+Smothermon raised that objection before the OCCA, nor 
+does anyone now explain its relevance to the Napue analy­
+sis. The argument is also unpersuasive on its own terms. 
+Both investigators spoke to Smothermon. When they did, 
+Smothermon did not provide the account she now endorses: 
+that Sneed relayed to her a conversation with Glossip's coun­
+sel about Dr. Trombka and lithium. Instead, during a third 
+interview, Smothermon asked the independent counsel “why 
+he thought it was Dr Trombka and not Dr Trumpet the jazz 
+musician and I was making a personal note or something 
+else.” App. to Brief for Victim Family Members as Amici 
+Curiae 31a. There is no compelling evidence that a fourth 
+or ffth consultation with Smothermon would have yielded 
+materially different results. 
+The Court-appointed amicus, for his part, largely aban­
+dons the OCCA's reasoning and focuses instead on ambigu­
+ities in Smothermon's notes. Amicus maintains that too 
+many inferential steps separate those notes from the conclu­
+sion that Sneed lied on the stand and that Smothermon knew 
+it. For example, amicus argues that “the parties do not ex­
+plain the basis for their asserted link between `Dr. Trumpet?' 
+and Trombka,” reiterating Smothermon's earlier statements 
+that she “ `is not convinced that Dr. Trombka and “Dr. Trum­
+pet” are the same person.' ” Brief for Court-Appointed 
+Amicus Curiae 32. As already explained, however, there is 
+ample evidence in the record before this Court supporting 
+the inference that Smothermon knew about Sneed's psychiat­
+ric treatment and lithium prescription, including the prison 
+medical record, Dr. Trombka's attestations, and Smother-
+mon's own notes. 
+Page Proof Pending Publication
+
+256 
+GLOSSIP v. OKLAHOMA 
+Opinion of the Court 
+Because ample evidence supports the attorney general's 
+confession of error in this Court, there also is no need to 
+remand for further evidentiary proceedings at the OCCA. 
+Indeed, that such proceedings are not necessary is the one 
+point on which Glossip, Oklahoma, amicus, and the OCCA 
+unanimously agree. See Tr. of Oral Arg. 108 (amicus con­
+ceding that “I guess we all agree that [an evidentiary hear­
+ing is] not . . . that it's not necessary”). The partial concur­
+rence suggests this Court should nonetheless remand for 
+further proceedings on the ground that the evidence does not 
+remove all doubt that the attorney general's view of the rec­
+ord is correct. Post, at 262 (Barrett, J., concurring in part 
+and dissenting in part). Yet for the reasons already ex­
+plained, the record establishes a violation of Napue. See 
+supra, at 246–252. This Court has not required an eviden­
+tiary record free of doubt to fnd a Napue violation in any 
+case, much less when an attorney general confesses that his 
+own offce erroneously obtained a capital conviction.11 
+C 
+Finally, the dissent maintains this Court lacks the author­
+ity to remand for a new trial, but its analysis proves the 
+contrary. The dissent emphasizes that “ `[o]ur only power 
+over state judgments is to correct them to the extent that 
+they incorrectly adjudge federal rights.' ” Post, at 294 (quot­
+ing Herb v. Pitcairn, 324 U. S. 117, 125–126 (1945)). It further 
+11 The dissent would order a hearing to provide “the Van Treese family 
+[with] the opportunity to present its case.” Post, at 303 (opinion of 
+Thomas, J.). The family has not requested an evidentiary hearing (or 
+participation in one) at any stage before the OCCA and does not request 
+that relief before this Court. Nor has the OCCA ever extended Oklaho­
+ma victims' right to participate in criminal proceedings to state post-
+conviction hearings. Cf. post, at 303–304. The request to do so here is 
+the dissent's alone. In any event, this Court does not “cast aside the 
+family's interests,” on procedural or any other grounds. Post, at 304. 
+For the reasons already explained, considering the evidence submitted by 
+the family would not change the outcome. See supra, at 255. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+257 
+Opinion of the Court 
+agrees that, where a state court relies on a procedural rule 
+whose application turns on “whether federal constitutional 
+error has been committed,” Ake, 470 U. S., at 75, this Court 
+may remand for a new trial if it “ha[s] confdence that no 
+other state ground could support the decision below,” post, 
+at 300. Those principles describe this case. 
+As explained above, the OCCA “incorrectly adjudge[d]” 
+Glossip's “federal rights.” Herb, 324 U. S., at 126. In doing 
+so, it relied on a procedural rule whose application turned on 
+the merits of a federal claim: “ `Where the Attorney General 
+confesses error, [the OCCA] will examine the record, and, if 
+the confession is sustained thereby, and is well founded in 
+law, the conviction will be reversed.' ” See supra, at 244 
+(quoting Bindrum, 27 Okla. Crim., at 372, 228 P., at 168, and 
+collecting authorities). Here, the attorney general “con­
+cede[d] error under Napue,” 3 App. 978, and the OCCA re­
+jected that confession because it wrongly concluded that no 
+such federal error had occurred. See supra, at 244. Be­
+cause the Napue confession was “well founded in law,” it fol­
+lows that “the conviction will be reversed.” Bindrum, 27 
+Okla. Crim., at 372, 228 P., at 168. Accordingly, all that re­
+mains below is to vacate the conviction, and a new trial fol­
+lows a fortiori. 
+The dissent concludes otherwise because, in its view, a re­
+mand for further consideration of alternative state grounds 
+is mandatory in every case where Michigan v. Long resolves 
+lingering doubt over the Court's jurisdiction. Post, at 295– 
+296. Long describes the circumstances under which this 
+Court has jurisdiction to review a state-court judgment; it 
+does not limit the Court's remedial authority over an estab­
+lished federal constitutional violation. Nor does any other 
+precedent support the dissent's rule. That state courts who 
+“grant relief to criminal defendants” under an erroneous in­
+terpretation of federal law may later grant relief “as a mat­
+ter of [more protective] state law,” Kansas v. Carr, 577 U. S. 
+108, 128 (2016) (Sotomayor, J., dissenting), plainly does not 
+
+258 
+GLOSSIP v. OKLAHOMA 
+Opinion of Barrett, J. 
+deprive this Court of the authority to grant relief where it 
+fnds a federal violation, contra, post, at 295–296; cf. Arizona 
+v. Evans, 514 U. S. 1, 8 (1995) (“Under [Michigan v. Long] state 
+courts are absolutely free to interpret state constitutional 
+provisions to accord greater protection to individual rights 
+than do similar provisions of the United States Constitution”). 
+The dissent inverts this precedent, asserting that state 
+courts should always have another opportunity to identify 
+additional grounds for denying relief, even where this Court 
+has found a federal constitutional violation. Yet there is no 
+reason to allow state courts a second (or third, or fourth) bite 
+at the apple to identify alternative state grounds for their 
+decision in every case involving a dependent ground. The 
+facts as conceded by the attorney general and supported by 
+the record establish a violation of Napue. A new trial is the 
+remedy for a Napue violation. See Giglio, 405 U. S., at 155. 
+Here, this Court has jurisdiction and a Napue violation oc­
+curred. Thus, Glossip is entitled to a new trial. See Ake, 
+470 U. S., at 86–87 (vacating conviction and remanding case 
+to the OCCA under similar circumstances). 
+*
+*
+* 
+The judgment of the Oklahoma Court of Criminal Appeals 
+is reversed, and the case is remanded for further proceedings 
+not inconsistent with this opinion. 
+It is so ordered. 
+Justice Gorsuch took no part in the consideration or de­
+cision of this case. 
+Justice Barrett, concurring in part and dissenting in 
+part. 
+While I agree with much of the Court's analysis, I would 
+not order the Oklahoma Court of Criminal Appeals (OCCA) 
+to set aside Richard Glossip's conviction. The OCCA did 
+not make factual fndings on the most important questions, 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+259 
+Opinion of Barrett, J. 
+and the record is open to multiple plausible interpreta­
+tions. Consistent with our ordinary practice, the Court 
+should have corrected the OCCA's misstatement of Napue v. 
+Illinois and remanded this case for further proceedings. 
+360 U. S. 264 (1959). Instead, the Court has drawn its own 
+conclusions about what the record shows, thereby exceeding 
+its role. 
+I begin with the common ground. At the threshold, I 
+agree with the Court's jurisdictional holding and therefore 
+join Part II of its opinion. We lack jurisdiction to review a 
+state court's adjudication of federal claims if the state court's 
+decision “rests on a state law ground that is independent of 
+the federal question and adequate to support the judgment.” 
+Coleman v. Thompson, 501 U. S. 722, 729 (1991). But when 
+a state-law ground of decision is intertwined with analysis 
+of a federal question, we will treat the decision as independ­
+ent only if the state court “make[s] clear by a plain state­
+ment” that its resolution of the state-law question does not 
+depend on its resolution of the federal question. Michigan 
+v. Long, 463 U. S. 1032, 1041 (1983). Though it is a closer 
+question for me than it is for the Court, I agree that the 
+OCCA's opinion does not clear this bar. True, the OCCA 
+rejected Glossip's application based on state-law procedural 
+limits on postconviction relief. But the opinion can be read 
+to say that the OCCA refused to accept the attorney gener­
+al's waiver of this procedural bar because his confession of 
+error was not “based in law.” 2023 OK CR 5, ¶25, 529 P. 3d 
+218, 226. If that is what the OCCA meant, then its reliance 
+on state law depended on the merits of Glossip's federal 
+claims. After all, if the trial contained federal constitutional 
+error, then the attorney general's confession of error may 
+have been “based in law.” Because the opinion lacks a 
+“plain statement” clarifying that the OCCA's reliance on 
+state law was truly independent of its assessment of Gloss­
+ip's federal claims, the Court rightly proceeds to the merits. 
+Michigan, 463 U. S., at 1041. 
+Page Proof Pending Publication
+
+260 
+GLOSSIP v. OKLAHOMA 
+Opinion of Barrett, J. 
+I also share the Court's view that the OCCA misapplied 
+Napue. The OCCA appeared to think that Justin Sneed's 
+testimony “was not clearly false” because he “was more than 
+likely in denial of his mental health disorders.” 529 P. 3d, 
+at 227. But for purposes of Napue, the question is not 
+whether a witness subjectively thought he was lying—it is 
+whether the prosecution knowingly presented untrue testi­
+mony. The OCCA also stated that Sneed's “known mental 
+health treatment evidence” would not have created a “rea­
+sonable probability that the result of the proceeding would 
+have been different had Sneed's testimony regarding his use 
+of lithium been further developed at trial.” 529 P. 3d, at 
+227. Yet the OCCA ignored the critical fact that—had the 
+prosecutor, Connie Smothermon, corrected Sneed's testi­
+mony—the jury would have learned that Sneed made a false 
+statement on the stand. Sneed's testimony was the primary 
+evidence that the State offered to prove that Glossip planned 
+the murder. Faced with a prosecutor forced to correct her 
+star witness, a juror might have disbelieved Sneed's testi­
+mony in its entirety. And if a juror went from belief to dis­
+belief in Sneed, she might have changed her ultimate assess­
+ment of whether the State had proved Glossip's guilt beyond 
+a reasonable doubt. So if Sneed really did give false testi­
+mony, and if Smothermon really did knowingly allow that 
+testimony to go uncorrected, then Smothermon violated 
+Glossip's due process rights under Napue. The OCCA's con­
+trary statements were wrong as a matter of federal law. 
+I part ways with the Court on what comes next. In exer­
+cising our appellate function, it is not our role to fnd facts; 
+instead, we review the factual fndings of lower courts, sub­
+ject to a deferential standard of appellate review. See Price 
+v. Johnston, 334 U. S. 266, 291 (1948). This practice makes 
+good sense. This Court is well equipped to answer ques­
+tions of federal law; it is ill equipped either to determine the 
+credibility of witnesses or to master voluminous trial rec­
+ords. Other actors in our judicial system—including, where 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+261 
+Opinion of Barrett, J. 
+appropriate, state courts like the OCCA—better serve these 
+functions, as our standard of review refects. In this case, 
+however, the Court has chosen to function as the initial 
+factfnder. 
+To establish a violation of Napue, Glossip must show that 
+(1) Sneed gave false testimony and (2) Smothermon knew 
+that the testimony was false. To make these showings, 
+Glossip relies largely on notes taken by Smothermon, an af­
+fdavit from Dr. Trombka, and a “medical information sheet.” 
+According to the Court, these documents clearly demon­
+strate that (1) Sneed lied when he said that he did not know 
+why he had been given lithium and that he had never seen a 
+psychiatrist and (2) Smothermon knew that both of these 
+statements were lies. See ante, at 246–248, 255. Thus, the 
+Court concludes, there is no need for the OCCA to make its 
+own factual fndings.* 
+*The Court suggests that this shortcut is appropriate because Glossip, 
+the attorney general, the Court-appointed amicus, and the OCCA “unani­
+mously agree” that the record is suffciently developed. Ante, at 256. I 
+do not think that this assertion fairly captures the views of either the 
+amicus or the OCCA. When asked whether he “object[ed] to an eviden­
+tiary hearing,” amicus—whom we appointed to defend the judgment 
+below in this Court—expressed doubt that he “ha[d] standing to object to 
+an evidentiary hearing.” Tr. of Oral Arg. 107–108. When pushed on the 
+point, he responded that the current record supports affrmance “based on 
+the evidence that [Glossip has] chosen to present and particularly given 
+that he's now told you he wants the case decided on the current record 
+[and] without an evidentiary hearing.” Id., at 109 (emphasis added). In 
+other words, amicus simply stated that the current record did not support 
+Glossip's claim—not that the record was in any objective sense already 
+fully developed. Moreover, the question here is not only whether further 
+factual development is warranted, but also which court should fnd facts 
+in the frst instance. Amicus certainly did not concede that this Court, 
+rather than the OCCA, should play that role on this record. As for the 
+OCCA, its lack of explanation of the facts cannot be divorced from its 
+erroneous view of Napue. Nothing in its opinion indicates what it would 
+make of this record evidence if it confronted the relevant questions 
+under Napue. 
+
+262 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+I respectfully disagree. Smothermon's notes, taken dur­
+ing a jailhouse interview of Sneed, consist of the words “on 
+Lithium?” and “Dr Trumpet?” 3 App. 927. These notes 
+are hardly clear, and there are competing explanations of 
+what they mean. Glossip, the Oklahoma attorney general, 
+and the Court argue that they demonstrate Smothermon's 
+knowledge that Sneed had lied about Dr. Trombka's prescrib­
+ing him lithium for bipolar disorder. See ante, at 247–248, 
+255. The Van Treese amicus brief and Justice Thomas 
+contend that the notes instead refect Sneed's account of a 
+conversation with Glossip's lawyers, who had asked Sneed 
+whether he had received lithium from a “Dr Trumpet.” See 
+post, at 272–275, and n. 3 (dissenting opinion). There are 
+other possibilities too: For instance, perhaps Smothermon 
+was confused by references to “Dr Trumpet” and lithium but 
+never investigated the issue further. Neither Dr. Trombka's 
+affdavit nor the attached medical information sheet nor any 
+of the other record evidence discussed by the Court fore­
+closes any of these possibilities. 
+When the record is susceptible to multiple plausible infer­
+ences, this Court should not be in the business of choosing 
+between them. It should have corrected the OCCA's mis­
+statements of federal law and vacated the judgment, leaving 
+next steps—including the decision whether to conduct an ev­
+identiary hearing—to the OCCA. By doing otherwise, the 
+Court has both displaced the OCCA as factfnder and poten­
+tially overridden state-law constraints on the OCCA's reme­
+dial authority. See post, at 293–301 (Thomas, J., dissent­
+ing). Because the Court has exceeded its appellate role, I 
+respectfully dissent in part. 
+Justice Thomas, with whom Justice Alito joins, and 
+with whom Justice Barrett joins as to Parts IV–A–1, IV– 
+A–2, and IV–A–3, dissenting. 
+Richard Glossip—a convicted murderer twice sentenced to 
+death by Oklahoma juries—challenges the denial of his ffth 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+263 
+Thomas, J., dissenting 
+application for state post-conviction relief. 
+Although 
+Glossip won the support of Oklahoma's new attorney general, 
+he failed to persuade either body with authority to grant 
+him relief: The Oklahoma Court of Criminal Appeals (OCCA) 
+denied Glossip's application as both procedurally defcient 
+and nonmeritorious, and Oklahoma's Pardon and Parole 
+Board denied clemency. Because this Court lacks the power 
+to override these denials, that should have marked the end 
+of the road for Glossip. Instead, the Court stretches the law 
+at every turn to rule in his favor. At the threshold, it con­
+cocts federal jurisdiction by misreading the decision below. 
+On the merits, it fnds a due process violation based on pat­
+ently immaterial testimony about a witness's medical condi­
+tion. And, for the remedy, it orders a new trial in violation 
+of black-letter law on this Court's power to review state-
+court judgments. I respectfully dissent. 
+I 
+A 
+This case arises from the 1997 murder of Barry Van 
+Treese, the owner of an Oklahoma City motel. Beginning 
+in 1995, Glossip began working for Van Treese as the motel's 
+manager. 4 Tr. 182–183 (May 14, 2004). In that capacity, 
+Glossip unoffcially hired 19-year-old Justin Sneed to be the 
+motel's handyman. Glossip did not pay Sneed; instead, 
+he let him live at the motel free of charge and occasionally 
+bought him food. Id., at 43–44; 5 Tr. 67–70 (May 17, 2004); 
+2 App. 644. In late 1996, Van Treese learned of discre­
+pancies in Glossip's accounting suggesting that Glossip had 
+been allowing guests to stay at the motel off the books and 
+pocketing the money for himself. 4 Tr. 63, 68–71 (May 14, 
+2004); 7 Tr. 35, 39–40, 45–49 (May 19, 2004); 11 Tr. 172–173 
+(May 25, 2004). During a visit to the motel on January 
+6, 1997, Van Treese confronted Glossip about this issue, 
+and, having discovered unregistered guests staying at the 
+Page Proof Pending Publication
+
+264 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+motel, he threatened to report Glossip to the police un­
+less Glossip produced receipts for their rooms. 8 Tr. 82 
+(May 20, 2004). 
+Hours later, after Van Treese had gone to bed, Sneed en­
+tered Van Treese's motel room and repeatedly beat him over 
+the head with a baseball bat. 2 App. 662–664; 11 Tr. 55 (May 
+25, 2004). Sneed left when he thought that he had killed 
+Van Treese, although the State's forensic pathologist later 
+determined that Van Treese had initially survived the at­
+tack, and died several hours later after slowly bleeding out. 
+Id., at 55–57, 61; App. to Response to Petitioner's Succ. Ap­
+plication for Post-Conviction Relief in No. PCD–2022–819 
+(OCCA), Tr. of Glossip Police Interview 10 (Jan. 9, 1997). 
+Following his arrest, Sneed explained to police that Glossip 
+had urged him to kill Van Treese. 2 App. 645, 660. Accord­
+ing to Sneed, Glossip told him that they would both be 
+evicted if Glossip lost his job, and Glossip had promised to 
+pay him $10,000 for carrying out the murder. 12 Tr. 95–96, 
+98 (May 26, 2004). 
+Shortly after the attack, Sneed went to Glossip's motel 
+room and informed him that he had killed Van Treese. Tr. 
+of Glossip Police Interview 10 (Jan. 9, 1997). Glossip began 
+directing a coverup. On Sneed's account, Glossip frst told 
+Sneed to clean up glass shards from a window that Sneed 
+had broken during the attack. 12 Tr. 122 (May 26, 2004). 
+Glossip also sent Sneed to retrieve about $4,000 in cash from 
+Van Treese's car, and then to abandon the car in a nearby 
+credit union parking lot. Id., at 124, 129. When Sneed re­
+turned, the two divided the cash. Id., at 128–129. They 
+then entered Van Treese's room, whereupon Glossip directed 
+Sneed to tape a shower curtain over the broken window and 
+run the air conditioning at full blast to eliminate any odor. 
+Id., at 130, 132. Glossip then dispatched Sneed to buy plexi­
+glass, which the pair installed over the broken window on 
+the morning of January 7. Tr. of Glossip Police Interview 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+265 
+Thomas, J., dissenting 
+14–15 (Jan. 9, 1997); 4 Tr. 163–165 (May 14, 2004); 13 Tr. 126 
+(May 27, 2004).1 
+Glossip took additional steps to cover up the murder. He 
+told multiple witnesses that the window in Van Treese's 
+room was broken because two drunks had stayed there the 
+night before and smashed it in a brawl. 5 Tr. 85 (May 17, 
+2004); 7 Tr. 64 (May 19, 2004); 9 Tr. 46, 206 (May 21, 2004); 
+11 Tr. 188–189 (May 25, 2004). He told the housekeeper that 
+she did not need to clean the downstairs rooms—including 
+Van Treese's room. 8 Tr. 122–123 (May 20, 2004). Instead, 
+as Glossip explained to another employee and a motel resi­
+dent, he and Sneed would cover those rooms. 7 Tr. 64 (May 
+19, 2004); 9 Tr. 49 (May 21, 2004). Glossip had never taken 
+such steps before. 8 Tr. 122–123 (May 20, 2004). He also 
+told various witnesses that he had seen Van Treese alive and 
+1 Despite its consistent theme that Sneed's testimony is too implausible 
+to sustain Glossip's conviction, the majority feels the need to bolster its 
+account by fnding “inconsisten[cies]” in his testimony that are not genu­
+ine. Ante, at 234, n. 1. There is no contradiction in Sneed's claims that 
+he committed the murder as part of a robbery and that he did so to avoid 
+being “ `evicted if Glossip lost his job.' ” Ibid. At both of Glossip's trials, 
+Sneed consistently testifed that Glossip proposed taking the cash Van 
+Treese had with him and that Glossip told him that they would get evicted 
+if he did not kill Van Treese. 12 Tr. 95–96, 98, 124 (May 26, 2004); 6 Tr. 
+89–90, 95–96 (June 8, 1998). Contemporaneous evidence supports both 
+motivations. In his confession to police, Sneed stated that Glossip had 
+proposed killing Van Treese and taking the cash that Van Treese had with 
+him. 2 App. 675. And, two days after the murder, Glossip told police 
+that Sneed had committed the murder in part because “[h]e thought Barry 
+[Van Treese] was going to throw him out in the street.” Tr. of Glossip 
+Police Interview 13 (Jan. 9, 1997). Nor did Sneed ever claim that “he did 
+not know why Glossip wanted him to kill Van Treese.” Ante, at 234, n. 1. 
+He testifed only that he did not know “why Mr. Glossip wanted to kill 
+Mr. Van Treese on this particular night,” because “[e]very time that 
+Mr. Van Treese showed up, [Glossip] was wanting me to kill him.” 6 Tr. 
+89 (June 8, 1998) (emphasis added). As noted, Sneed clearly testifed at 
+the same trial that Glossip wanted Sneed to kill Van Treese so that they 
+would not be evicted. Id., at 90. 
+
+Page Proof Pending Publication
+266 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+well around 7 o'clock that morning. 4 Tr. 99 (May 14, 2004); 
+7 Tr. 62–63 (May 19, 2004); 9 Tr. 194 (May 21, 2004); 11 Tr. 
+126–127, 182–183 (May 25, 2004). 
+That afternoon, the credit union called the motel to report 
+that Van Treese's car had been abandoned in its parking lot. 
+7 Tr. 70 (May 19, 2004). At that point, it became clear 
+to the motel's staff that Van Treese was missing. Id., at 
+72–74. Shortly thereafter, Glossip returned to the motel 
+from a shopping trip, during which he had made several 
+large purchases, including an engagement ring for his girl­
+friend. Id., at 74; 14 Tr. 41 (May 28, 2004). He then pur­
+ported to search the rooms and surrounding area for Van 
+Treese. 5 Tr. 97 (May 17, 2004); 9 Tr. 192–193 (May 21, 
+2004); 11 Tr. 185–186, 190 (May 25, 2004). He even assured 
+Van Treese's wife over the phone that everything was fne 
+and that he had seen Van Treese that morning. 4 Tr. 99– 
+100 (May 14, 2004). 
+Glossip later repeated to a local police offcer the story that 
+two drunks had broken the window and that he had seen 
+Van Treese that morning. 9 Tr. 194, 206–207 (May 21, 2004). 
+Unpersuaded, the offcer checked the room with the broken 
+window and discovered Van Treese's body. Id., at 220, 224– 
+225; 11 Tr. 191, 194 (May 25, 2004). Glossip immediately told 
+the offcer that he suspected that Sneed had something to do 
+with the murder, explaining that he had heard glass breaking 
+and that Sneed had banged on his door, but he did not claim 
+to know anything more. 9 Tr. 233 (May 21, 2004). 
+Homicide detectives interviewed Glossip later that night. 
+Tr. of Glossip Police Interview 1, 10–11 (Jan. 8, 1997). He 
+denied knowing that Van Treese had been murdered before 
+the body was discovered. Id., at 70, 86. And, he vacillated 
+between doubting that Sneed was involved and asserting 
+that he likely was. Id., at 27–28, 69–70. 
+On the morning of January 8, Glossip began to sell all his 
+possessions, telling multiple witnesses that he would like to 
+leave town. 8 Tr. 88 (May 20, 2004); 11 Tr. 199 (May 25, 
+
+Cite as: 604 U. S. 226 (2025) 
+267 
+Thomas, J., dissenting 
+2004). On January 9, police picked up Glossip after he failed 
+to appear for a meeting with homicide detectives. 12 Tr. 7 
+(May 26, 2004). He had $1,757 in cash on his person and 
+no explanation for how he—living paycheck to paycheck and 
+having made only $490 from selling his possessions the pre­
+vious day—had so much cash. Id., at 12–13; 14 Tr. 43–44 
+(May 28, 2004); 15 Tr. 17, 93 (June 1, 2004). 
+Glossip sat for a second interview with homicide detectives 
+later that day. Tr. of Glossip Police Interview 1 (Jan. 9, 
+1997). This time, although continuing to deny that he had 
+ordered Sneed to kill Van Treese, Glossip admitted that 
+Sneed had told him about the murder just after committing 
+it, and that he had instructed Sneed to clean up the glass 
+and repair the window. Id., at 13–14, 36. Glossip also ad­
+mitted that Van Treese “was upset because the motel wasn't 
+doing as well as it could.” Id., at 32. When asked why he 
+hid the murder, Glossip denied doing so to protect Sneed. 
+He said he covered up the murder instead to protect himself, 
+because he “was involved in it” and risked losing his girl­
+friend otherwise. Id., at 29–30. 
+During this interview, Glossip also tried to minimize his 
+involvement in the crime by insisting that he had not gone 
+inside Van Treese's hotel room after the attack. Id., at 18; 
+see also ante, at 232 (emphasizing this denial). At trial, 
+however, a motel resident testifed that, on the morning of 
+January 7, Glossip had said that he and Sneed had been “in 
+the room” after the window was broken. 9 Tr. 120 (May 
+21, 2004). 
+Police arrested Sneed fve days later and charged him with 
+capital murder. 2 App. 644–645. He had $1,680 in cash in 
+his possession. 14 Tr. 12–18 (May 28, 2004). At frst, Sneed 
+denied involvement, claiming that his brother and Glossip 
+had once discussed the idea but that it never went beyond 
+talk. 2 App. 655–657. Later in the interview, however, 
+Sneed confessed to murdering Van Treese at Glossip's insti­
+gation. Id., at 660, 664. 
+Page Proof Pending Publication
+
+268 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+B 
+1 
+Glossip was convicted and sentenced to death in 1998, but 
+the OCCA ordered a retrial based on ineffective assistance 
+of counsel. 2001 OK CR 21, 29 P. 3d 597. 
+At his second trial in 2004, a jury convicted Glossip again, 
+and the judge again sentenced him to death. Sneed testifed 
+against Glossip during the guilt phase, as he had at the frst 
+trial. While Sneed was providing background information 
+about himself at the outset of this testimony, the State's lead 
+prosecutor, Connie Smothermon, asked him whether he had 
+received any “prescription medication” after being arrested. 
+12 Tr. 63–64 (May 26, 2004). Sneed responded that he had 
+briefy been prescribed “Lithium for some reason, I don't 
+know why. I never seen no psychiatrist or anything.” Id., 
+at 64. The matter did not come up again during the trial. 
+It would not have been challenging for the parties to de­
+duce the reason for Sneed's lithium prescription. It is un­
+disputed that lithium's sole medical purpose, both in 1997 and 
+today, is to treat bipolar disorder and other mental health 
+disorders. See ante, at 247. Were there any doubt about 
+Sneed's condition, records long available to both sides resolve 
+it. In 1997, Sneed underwent a pretrial competency evalua­
+tion with forensic psychologist Dr. Edith King. Dr. King's 
+report strongly suggested that although Sneed himself may 
+have been in denial, he was taking lithium to treat bipo­
+lar disorder or a similar condition. During his evaluation, 
+Sneed asserted that he “d[id] not think he ha[d] any serious 
+mental problems.” 2 App. 701. And, he reported he was 
+given the lithium, apparently by mistake, “after his tooth 
+was pulled.” Id., at 700. Dr. King felt otherwise. Con­
+cluding that Sneed qualifed as a “mentally ill person or a 
+person requiring treatment,” ibid., she determined that he 
+likely had “an atypical mood swing disorder in his past char­
+acterized by `ups and downs' including anger outburst.” Id., 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+269 
+Thomas, J., dissenting 
+at 702. “His present medication [i.e., the lithium] is prob­
+ably helping him control his moods.” Ibid. 
+The defense was well aware of this report before Glossip's 
+second trial. In fact, on direct appeal of his frst conviction, 
+Glossip's appellate counsel had faulted his trial counsel for 
+not using Dr. King's report to show the jury that Sneed was 
+taking lithium to control his anger. 1 id., at 18. Neverthe­
+less, after the OCCA vacated his frst conviction, Glossip de­
+clined to seek further pretrial discovery on the issue or raise 
+it during his second trial. 
+After his second conviction and sentence, Glossip ignored 
+the lithium issue on direct appeal, instead raising a general 
+suffciency-of-the-evidence challenge. The OCCA unani­
+mously rejected that challenge, fnding that there was suff­
+cient evidence to convict and that the State had satisfed an 
+additional state-law requirement for corroborative evidence 
+where a conviction rests on accomplice testimony. 2007 OK 
+CR 12, ¶¶47–53, 157 P. 3d 143, 153–154. Two judges dis­
+sented on different grounds but “agree[d] with the majority 
+that the State presented a strong circumstantial case against 
+Glossip.” Id., at 175 (Chapel, J.); see also ibid. (A. John­
+son, J.). 
+2 
+Glossip has spent the past two decades challenging his con­
+viction and sentence through direct appeal, state and federal 
+collateral proceedings, and civil litigation under Rev. Stat. 
+§ 1979, 42 U. S. C. § 1983. Throughout that time, no court 
+has “determined error in [his] trial proceeding” or found that 
+“there [has] been a showing of actual innocence.” 2023 OK 
+CR 5, ¶2, 529 P. 3d 218, 229 (Lumpkin, J., specially concur­
+ring). And, for almost that entire duration, the Oklahoma 
+attorney general has steadfastly defended the verdict and 
+sentence, insisting that the evidence the State presented in 
+1998 and 2004 has never “been credibly rebutted.” 3 App. 
+769. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+270 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+In 2022, as Glossip's execution date approached, a group of 
+Oklahoma legislators opposed to his execution commissioned 
+the law frm Reed Smith LLP to conduct an independent 
+investigation of his case. The frm, which is publicly com­
+mitted to “fghting the death penalty,” id., at 709, n. 3 (alter­
+ation and internal quotation marks omitted), issued a fnal 
+report expressing “grave doubt as to the integrity of Gloss­
+ip's murder conviction and death sentence,” Independent In­
+vestigation of State v. Richard E. Glossip 6 (June 7, 2022) 
+(Reed Smith Report). The attorney general vigorously dis­
+agreed. In subsequent post-conviction flings, the State as­
+serted that the report was “built on assumptions, half-truths, 
+and (in some cases) outright falsehoods,” 3 App. 769, and 
+criticized its fndings at length, see id., at 754–769. 
+In response to the Reed Smith Report, the attorney gener­
+al's offce released all its fles from the case to Glossip, except 
+for one box of attorney work product. Based on this infor­
+mation, Glossip fled a fourth motion for post-conviction relief 
+in the OCCA, raising two overarching claims. The frst 
+claim was that the State violated Brady v. Maryland, 373 
+U. S. 83 (1963), by withholding evidence that Sneed consid­
+ered recanting his original testimony before the second trial. 
+The second claim was that Smothermon, the lead prosecutor, 
+committed misconduct and violated the rule of sequestration 
+(which prohibits witnesses from hearing other witnesses' tes­
+timony) during trial. After the State's forensic pathologist 
+testifed that there was evidence Sneed used a knife in addi­
+tion to the bat during the murder, Smothermon sent a memo­
+randum to Sneed's attorney highlighting ways in which this 
+testimony was hard to square with some of Sneed's earlier 
+statements. Glossip thus claimed Smothermon violated the 
+rule of sequestration by conveying witness statements for 
+the purpose of coaching Sneed into altering his testimony to 
+ft the forensic evidence. Attorney General John O'Connor 
+opposed the application, urging the OCCA not to be cowed 
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+271 
+Thomas, J., dissenting 
+by the ongoing “public relations campaign” to “falsely” pres­
+ent Glossip as “innocent.” 3 App. 717. 
+The OCCA unanimously denied the application. Under 
+Oklahoma's Post-Conviction Procedure Act (PCPA), Glossip's 
+post-conviction application could not proceed unless he could 
+show (1) that the “factual basis for the claim” was previously 
+unavailable and (2) that, but for the alleged error, no rea­
+sonable jury would have convicted him or sentenced him 
+to death. Okla. Stat., Tit. 22, § 1089(D)(8)(b) (2024). The 
+OCCA held that both claims failed the frst requirement be­
+cause they were not based on new information. It also held 
+that Glossip's claims failed on the merits. 
+As to the recantation claim, the OCCA held that Glossip's 
+frst claim was procedurally barred because the defense 
+knew even before the 2004 trial that Sneed was reluctant to 
+testify again. 3 App. 777. In fact, one of Glossip's attor­
+neys had even visited Sneed before trial in an effort to per­
+suade him not to testify. Ibid. On the merits, there was 
+“no evidence that Sneed had any desire to recant or change 
+his testimony.” Id., at 776. Sneed had even told Reed 
+Smith that “ `recant[ing]' ” was “ `impossible because I told the 
+truth.' ” Id., at 724. Sneed was reluctant to testify because 
+he wanted to obtain a better plea deal or to avoid the disrup­
+tion to his life that testifying would cause. Id., at 776.2 
+2 The majority points to a letter from Sneed to his attorney in which Sneed 
+raised the prospect of “ ` “recanting” ' ” his trial testimony. Ante, at 238 
+(quoting 3 App. 815). But, in two subsequent interviews with Reed Smith 
+attorneys, Sneed made clear that, although he wanted to avoid testifying 
+again if possible, he continued to stand by the truth of his earlier testimony: 
+“[REED SMITH ATTORNEY]: Yeah. Well, I think the bottom line 
+here, the most important things that we needed to clarify was like when 
+you're talking about recanting, you're not talking about changing your 
+story about what happened. Have you ever indicated to anybody that 
+you ever wanted to change your story about what happened? 
+“JUSTIN SNEED: No, sir. I have not ever indicated that I wanted to 
+change the truth of him applying pressure to me.” App. to Response to 
+
+272 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+Turning to the sequestration claim, the OCCA pointed out 
+that Smothermon had acknowledged at trial that she had 
+spoken with Sneed's counsel, so the claim likewise lacked a 
+new factual basis. Id., at 780; see 12 Tr. 107–108 (May 26, 
+2004). On the merits, the court held that Oklahoma's se­
+questration statute does not prohibit counsel from discussing 
+with a witness other witnesses' testimony. 3 App. 781. 
+Federal courts have similarly interpreted the federal seques­
+tration rule to permit “witnesses . . . to discuss the case” 
+with “counsel for either side.” 2A C. Wright & P. Henning, 
+Federal Practice and Procedure § 416, p. 195, and n. 29 (4th 
+ed. 2009) (collecting cases). And, nothing in Smothermon's 
+memorandum indicates she was encouraging Sneed to lie. 3 
+App. 781–782. 
+3 
+In January 2023, Gentner Drummond became Oklahoma's 
+attorney general. During his frst month in offce, Drum­
+mond released the fnal box of evidence (Box 8) to Glossip. 
+He also appointed Rex Duncan, a personal friend and cam­
+paign donor, as independent counsel to reexamine the legiti­
+macy of Glossip's conviction. 
+Among the materials released in Box 8 were handwritten 
+notes taken by Smothermon and her co-counsel Gary Ackley 
+during a 2003 meeting between them, Sneed, and Sneed's 
+attorney. 
+Petitioner's Succ. Application for Post-Conviction Relief in No. PCD– 
+2022–819 (OCCA), Tr. of Sneed Reed Smith Interview 46–47 (Aug. 15, 
+2022). 
+See also id., Tr. of Sneed Reed Smith Interview 24 (Sept. 7, 2022) 
+(“There isn't any way of really making up some [new] storyline that isn't 
+going to cover all the evidence that is already there . . . ”). Sneed has 
+never on any occasion indicated that his testimony that Glossip directed 
+him to kill Van Treese was false, see 3 App. 724–725, and the majority 
+cites no such occasion. The best explanation for Sneed's letter, and the 
+one that the OCCA credited as factual, is thus that Sneed, an eighth-grade 
+dropout, used the phrase “recanting my testimony” imprecisely to mean 
+“refuse to testify.” Id., at 725, and n. 13, 776. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+273 
+Thomas, J., dissenting 
+Glossip's counsel quickly seized on Smothermon's notes. 
+In the top left corner of the notes, Smothermon had written 
+“on Lithium?” and “Dr Trumpet?” See Figure 1, infra. 
+According to Glossip's counsel, these phrases meant that 
+Sneed had admitted during the meeting that he had been 
+prescribed lithium by Dr. Lawrence Trombka, the psychia­
+trist at the Oklahoma County Jail. 
+Page Proof Pending Publication
+Smothermon and Ackley disagree with this interpretation. 
+They assert before this Court that, during the meeting, 
+Sneed recounted two interviews that he previously had with 
+members of Glossip's defense team. In context, Smother-
+mon's notes simply record that Sneed told her that Glossip's 
+defense team had asked him about his use of lithium and 
+about “Dr Trumpet.” The prosecutors claim that this fact 
+is apparent from the other notes on the page and from 
+Ackley's notes, both of which refer to details of these prior 
+interviews. Ackley's notes also highlight the phrase “ `tooth 
+pulled.' ” 3 App. 940. The prosecutors' interpretation of 
+their own notes thus suggests that Sneed recounted that he 
+had responded to questions about lithium and Dr. Trombka 
+Figure 1. Smothermon's handwritten notes. See 3 App. 927. 
+
+274 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+with his earlier story that he was prescribed lithium in 
+error after having his tooth pulled. This interpretation 
+is explained at great length by the Van Treese family's 
+brief. See Brief for Victim Family Members as Amici 
+Curiae 7–22.3 
+And, as of yet, no one—including the par­
+3 According to Smothermon, her notes refect two visits (“2X”) by de­
+fense representatives—with notes about the two visits separated by a ho­
+rizontal line. According to the notes above the line, Sneed's frst visitors 
+were “women,” one of whom was an investigator (“invest.”) who may have 
+been heavy set (“heavy set?”). These visitors may have been involved in 
+Glossip's earlier direct “appeal.” These women asked Sneed whether he 
+was “on Lithium?” and about a “Dr Trumpet?” The notes also document 
+a discussion of a “waiver for records,” “IQ test,” and “GED. VoTech.” 
+Similarly, Ackley's notes record that the “W[itness, i.e., Sneed,] was visited 
+by 2 women who said they rep Glossip.” They were “heavy,” “1 `Inv.' & 
+1 `Atty,' ” who may have been on Sneed's “Appellate” team. These two 
+women asked Sneed about lithium (“Li”), and he responded with some­
+thing about getting his “ `tooth pulled.' ” Brief for Victim Family Mem­
+bers as Amici Curiae 9–12. 
+These notes correspond to Sneed's 2001 meeting with Wyndi Hobbs 
+(Glossip's post-conviction counsel) and an investigator named Lisa Cooper, 
+which was documented in the record of Glossip's fourth post-conviction 
+application. See 3 App. 729–730. At this meeting, Sneed “ `signed re­
+leases for juvenile, jail, prison and criminal records,' ” id., at 729, which 
+corresponds to the “waiver for records” mentioned in Smothermon's notes. 
+Sneed later wrote a letter to Cooper to ensure that she received informa­
+tion about his participation in a “vo-tech program,” id., at 730, which cor­
+responds to the reference to “GED. VoTech.” 
+According to Smothermon's notes below the line, Sneed's second visit 
+was from a “man” named “Burch” who tried to “con [him] out” of giving 
+“testimony” against Glossip. Burch “gave [Sneed a] case.” Ackley's 
+notes likewise indicate that Sneed “[l]ater” met with “1 guy” named 
+“Burch.” Sneed said of the meeting, ` “Basically all he was trying to do 
+was con me out of not [sic] getting onto the stand.' ” Brief for Victim 
+Family Members as Amici Curiae 9–13 (alteration in original). 
+The flings from Glossip's fourth application also recount that Lynne 
+Burch, one of Glossip's attorneys, met with Sneed after the OCCA vacated 
+Glossip's frst conviction. 3 App. 731. Burch told Sneed “ `he didn't have 
+to testify' ” in Glossip's second trial, and (in line with Smothermon's notes) 
+gave Sneed a case, State v. Dyer, 2001 OK CR 31, 34 P. 3d 652, holding 
+that the State could not renege on a plea agreement for refusing to testify 
+at a codefendant's second trial. 3 App. 731–732. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+275 
+Thomas, J., dissenting 
+ties and the majority—has attempted to refute it on the 
+merits. 
+Based on Smothermon's notes, Glossip fled a ffth post-
+conviction application in the OCCA in March 2023. He 
+framed the notes as new evidence of Sneed's previously un­
+known bipolar disorder. Glossip attached an affdavit from 
+Dr. Trombka stating that he was the only person who would 
+have prescribed lithium while Sneed was in jail. Glossip 
+also attached what appears to be a jail record indicating that 
+Sneed has bipolar disorder. He argued that the State's re­
+fusal to produce these notes before trial violated Brady, on 
+the theory that he could have used Sneed's condition to im­
+peach his testimony. 
+At the same time, Glossip recognized that he would need 
+additional evidence to prove his theory. Together with his 
+application, Glossip also fled a motion for an evidentiary 
+hearing, in which he sought to call Smothermon and Ackley 
+as witnesses. Motion for Evidentiary Hearing in No. PCD– 
+2023–267 (OCCA), p. 2. Glossip explained in the motion that 
+“the resolution” of his Brady claim “turns in part on inter­
+pretation of prosecutors' notes.” Motion for Evidentiary 
+Hearing, at 1. “Without their testimony,” he acknowledged, 
+“any fnding about what they meant or what the attorneys 
+did or did not know when they wrote them would be specula­
+tion.” Id., at 1–2. 
+Independent Counsel Duncan, on the other hand, deter­
+mined that no further evidence was needed. Duncan re­
+leased his fnal report shortly after Glossip fled his ffth 
+application. He agreed that the State violated Glossip's 
+Brady rights and asserted that Smothermon's failure to cor­
+rect Sneed's testimony amounted to a due process violation 
+under Napue v. Illinois, 360 U. S. 264 (1959). Duncan based 
+his conclusions on the speculation that “seasoned capital 
+homicide prosecutors . . . could be expected” to know that 
+“Trumpet” referred to Dr. Trombka and that Dr. Trombka 
+was the psychiatrist at the Oklahoma County Jail. App. to 
+Reply Brief in Support of Pet. for Cert. 23a. He then con­
+Page Proof Pending Publication
+
+276 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+cluded the report with praise for Drummond, stating that 
+Drummond's “decision to seek a stay of execution and more 
+thoroughly examine this case may be the bravest leadership 
+decision I've ever witnessed.” Id., at 30a. 
+Notably, Duncan failed to give Smothermon a meaningful 
+opportunity to explain what her notes may have meant or 
+what she knew about Sneed's medical history. Instead, he 
+discussed the matter with her only once, during a 3-minute 
+phone call. App. to Brief for Victim Family Members as 
+Amici Curiae 31a. Worse, he gave Smothermon no chance 
+to review the decades-old notes before asking her to explain 
+them during the brief call. Ibid. Drummond was likewise 
+uninterested in hearing from the attorney he and Duncan 
+were impugning. Following Duncan's report, both Smother­
+mon and the Van Treese family contacted Drummond's offce 
+to request that Drummond speak with Smothermon about 
+the notes. Id., at 6a–7a, 71a. Their pleas were ignored.4 
+At the attorney general's behest, the State supported 
+Glossip's post-conviction application. It argued that Smoth­
+ermon's notes proved that the prosecutors violated Brady 
+and Napue, and that Glossip was entitled to relief under the 
+State's PCPA. It neglected to address, however, the strin­
+gent limitations that the PCPA imposes on such subsequent 
+applications. See § 1089(D)(8)(b). 
+4 The majority insists that Smothermon had a fair opportunity to explain 
+her notes because she met once with attorneys at the Reed Smith law frm 
+and had an earlier, longer phone call with Duncan. Ante, at 255. But, 
+the Reed Smith meeting occurred before the release of Box 8. See Reed 
+Smith Report 80, n. 321 (noting that the Reed Smith meeting occurred in 
+May 2022, eight months before Box 8 was released in January 2023). 
+And—by his own admission—Duncan “forgot to ask” Smothermon about 
+“Dr. Larry Trombka” during his earlier, longer phone call. App. to Brief 
+for Victim Family Members as Amici Curiae 32a. The majority also 
+faults Smothermon for not having an explanation ready during the 3­
+minute phone call. Ante, at 255. But, without giving Smothermon an 
+opportunity to review the notes, it was unreasonable to expect her instan­
+taneously to recall their meaning 20 years later. 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+277 
+Thomas, J., dissenting 
+The OCCA unanimously denied Glossip's ffth post-
+conviction application. The court frst held that Glossip had 
+not satisfed either requirement of § 1089(D)(8)(b), and thus 
+that the Brady and Napue claims were procedurally barred. 
+529 P. 3d, at 226. The OCCA then held that both claims also 
+failed on the merits. No Brady violation occurred, the court 
+explained, because Sneed's 1997 pretrial competency report 
+already informed the defense of Sneed's prescription and 
+condition. The OCCA determined that defense counsel had 
+likely made a strategic decision not to base a defense on 
+them. 529 P. 3d, at 226. Nor was there any Napue viola­
+tion, according to the court, because Sneed's testimony “was 
+not clearly false” and, in any event, was not material given 
+defense counsel's choice not to raise Sneed's condition. 529 
+P. 3d, at 226–227. After the OCCA issued its decision, Okla-
+homa's Pardon and Parole Board denied clemency. 
+II 
+As an initial matter, we lack jurisdiction to review this 
+case. “This Court from the time of its foundation has ad­
+hered to the principle that it will not review judgments of 
+state courts that rest on adequate and independent state 
+grounds.” Herb v. Pitcairn, 324 U. S. 117, 125 (1945). “Be­
+cause this Court has no power to review a state law deter­
+mination that is suffcient to support the judgment, resolu­
+tion of any independent federal ground for the decision could 
+not affect the judgment and would therefore be advisory.” 
+Coleman v. Thompson, 501 U. S. 722, 729 (1991). Thus, on 
+direct review of a state-court judgment, the presence of an 
+adequate and independent state ground imposes a “jurisdic­
+tional” limitation. Ibid. The decision below rests on such 
+grounds, and the majority concludes otherwise only by 
+grossly mischaracterizing the state court's analysis. 
+A 
+The PCPA authorizes a criminal defendant to collaterally 
+challenge his conviction on the ground that it violates the 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+278 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+Federal Constitution. Okla. Stat., Tit. 22, § 1080(1). But, 
+given the extraordinary nature of collateral challenges, the 
+statute also imposes a variety of restrictions on relief. In 
+capital cases, the applicant must establish not just a constitu­
+tional violation, but also, among other requirements, that his 
+claim “could not have been raised in a direct appeal” and that 
+“the outcome of the trial would have been different but for 
+the errors or that the defendant is factually innocent.” 
+§ 1089(C). 
+The PCPA further bars subsequent applications for relief, 
+such as Glossip's, unless the applicant satisfes two additional 
+requirements. As mentioned, the applicant must show that 
+“the factual basis for the claim” was not previously “ascer­
+tainable through the exercise of reasonable diligence.” 
+§ 1089(D)(8)(b)(1). And, the applicant must demonstrate 
+that “the facts underlying the claim” would, if proved, “es­
+tablish by clear and convincing evidence that, but for the 
+alleged error, no reasonable fact fnder would have found the 
+applicant guilty of the underlying offense or would have ren­
+dered the penalty of death.” § 1089(D)(8)(b)(2). These two 
+necessary conditions—the diligence and actual-innocence 
+requirements—closely mirror limits that the Antiterrorism 
+and Effective Death Penalty Act of 1996 (AEDPA) imposes 
+on successive federal habeas petitions. See 28 U. S. C. 
+§ 2244(b)(2)(B); Davison v. State, 2023 OK CR 11, ¶9, n. 1, 
+531 P. 3d 649, 651, n. 1. 
+As with other state-law requirements, the PCPA's bar on 
+subsequent applications ordinarily will constitute an ade­
+quate and independent state ground precluding our review. 
+It is independent because its application does not “depend 
+upon a federal constitutional ruling on the merits.” Stewart 
+v. Smith, 536 U. S. 856, 860 (2002) (per curiam). It is ade­
+quate as a general matter because States have no constitu­
+tional obligation to create “collateral proceedings” in the frst 
+place. Murray v. Giarratano, 492 U. S. 1, 10 (1989) (plural­
+
+Page Proof Pending Publication
+Cite as: 604 U. S. 226 (2025) 
+279 
+Thomas, J., dissenting 
+ity opinion). And, it is adequate in particular cases so long 
+as the OCCA's decision to rely on it is not “so unfounded” in 
+existing law or the record “as to be essentially arbitrary.” 
+Cruz v. Arizona, 598 U. S. 17, 26 (2023) (internal quotation 
+marks omitted). A decision will be inadequate on this basis 
+only in “the rarest of situations.” Ibid. 
+Here, the OCCA held that the PCPA barred Glossip's ap­
+plication twice over because he failed to meet either the dili­
+gence or actual-innocence requirements. 529 P. 3d, at 226. 
+The OCCA properly grounded these conclusions in its analy­
+sis of the record: It explained that because Glossip had been 
+aware of Sneed's condition and lithium prescription since 
+1997, with “reasonable diligence” the Napue violation “could 
+have been presented previously.” 529 P. 3d, at 226. Like­
+wise, Glossip could not establish that, but for the alleged 
+Napue violation, “no reasonable fact fnder” would have con­
+victed him. 529 P. 3d, at 226. Correcting Sneed's testi­
+mony simply would have furnished the defense with addi­
+tional impeachment evidence that did not directly contradict 
+the State's basic theory. But, “evidence of factual innocence 
+must be more than that which merely tends to discredit or 
+impeach a witness.” Id., at 225 (collecting cases). The 
+OCCA's reliance on the PCPA thus was both an adequate 
+basis for its judgment and independent of federal law, leav­
+ing us without jurisdiction. Glossip's case should end here. 
+B 
+The majority evades this straightforward conclusion by in­
+venting a federal holding that the OCCA never made. Be­
+fore applying the PCPA's bar on subsequent applications, the 
+majority contends, the OCCA frst addressed the State's 
+“confession of Napue error.” Ante, at 243. The OCCA 
+then found this confession to be “ `not based in law or fact.' ” 
+Ibid. (quoting 529 P. 3d, at 226). Thus, the majority con­
+cludes, the OCCA premised its application of the PCPA's 
+
+280 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+bar on an “antecedent holding” of “federal law,” which we 
+have jurisdiction to review. Ante, at 243. This theory mis­
+states the decision below and defes logic. 
+As the OCCA recognized (and the majority does not), the 
+State did not merely confess to a Napue violation; it “con­
+cede[d] that [Sneed's] alleged false testimony combined with 
+other unspecifed cumulative errors warrant post-conviction 
+relief.” 529 P. 3d, at 226 (emphasis added). A federal claim 
+can warrant post-conviction relief under the PCPA only if 
+the applicant meets the PCPA's additional requirements. 
+See § 1089(D)(4). The State partly recognized as much, ex­
+pressly acknowledging that, “[t]o obtain post-conviction re­
+lief, Glossip needs to show” that he satisfes the requirements 
+of “§ 1089(C).” 3 App. 976. The State therefore argued 
+that the alleged Napue violation met those requirements— 
+namely, that the violation “could not have been asserted in a 
+direct appeal,” and that “the result of the trial” likely would 
+not “have been the same but for” the Napue violation and 
+cumulative errors. 3 App. 977–978. 
+The OCCA properly concluded that this argument suffered 
+a threshold defect: It ignored the PCPA's additional require­
+ments for “subsequent application[s] for post-conviction re­
+lief” under §1089(D). Beyond showing that he met the 
+§ 1089(C) requirements, Glossip also had to show he satis­
+fed § 1089(D)'s diligence and actual-innocence requirements. 
+§ 1089(D)(8)(b). Yet, the State never addressed those pre­
+requisites. The OCCA thus held that Oklahoma's “con­
+cession alone cannot overcome the limitations on succes­
+sive post-conviction review.” 529 P. 3d, at 226 (citing 
+§ 1089(D)(8)).5 
+Because the State's concession that the cir­
+5 The majority claims that the OCCA could not have meant to rely on 
+§ 1089(D) because the State “expressly attempted to waive” the require­
+ments of that provision. Ante, at 245. The State did no such thing. In 
+its response to Glossip's application, the State of Oklahoma contended that, 
+“[t]o obtain post-conviction relief, Glossip needs to show” he satisfes the 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+281 
+Thomas, J., dissenting 
+cumstances “warrant post-conviction relief ” overlooked 
+these additional state-law requirements, the OCCA correctly 
+observed that the State's assertion was “not based in law or 
+fact.” Id., at 226. And, as the OCCA's § 1089(D) citation 
+makes clear, the court was referring to Oklahoma law, not 
+federal law. 
+The structure of the OCCA's analysis reinforces this con­
+clusion. 
+The relevant portion of the opinion reads as 
+follows: 
+Ҧ25 Glossip claims that the State failed to disclose 
+evidence of Justin Sneed's mental health treatment and 
+that Sneed lied about his mental health treatment to the 
+jury. Though the State in its response now concedes 
+that this alleged false testimony combined with other 
+unspecifed cumulative errors warrant post-conviction 
+relief, the concession alone cannot overcome the limita­
+tions on successive post-conviction review. See 22 O.S. 
+Supp. 2022, § 1089(D)(8). The State's concession is not 
+based in law or fact. 
+Ҧ26 This issue is one that could have been presented 
+previously, because the factual basis for the claim was 
+ascertainable through the exercise of reasonable dili­
+gence, and the facts are not suffcient to establish by 
+clear and convincing evidence that, but for the alleged 
+error, no reasonable fact fnder would have found the 
+PCPA. 3 App. 976 (citing § 1089(C)). It then offered an argument that 
+Glossip had satisfed the PCPA's requirements. Id., at 976–978. Such an 
+argument is distinct from a “waiver,” which “is the voluntary and inten­
+tional relinquishment of a known right.” Price v. Zhang, 2022 OK 95, 
+¶19, 521 P. 3d 795, 799–800. Regardless, even if the State had purported 
+to waive § 1089(D), the OCCA nonetheless explicitly applied it. 529 P. 3d, 
+at 226 (citing § 1089(D)(8)). Perhaps the majority thinks that ruling is too 
+harsh—even though AEDPA's analogous limitations on successive federal 
+habeas petitions are often, if not always, unwaivable. See Burton v. Stew­
+art, 549 U. S. 147, 157 (2007) (per curiam). But, the harshness of such a 
+ruling would not make it any less independent of federal law. 
+Page Proof Pending Publication
+
+282 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+applicant guilty of the underlying offense or would have 
+rendered the penalty of death. 
+Ҧ27 [Glossip's Brady claim fails on the merits.] 
+Ҧ28 The evidence, moreover, does not create a Napue 
+error. . . .” Id., at 226–227 (footnotes omitted). 
+The OCCA's application of § 1089(D)'s diligence and actual-
+innocence requirements in paragraph 26 immediately fol­
+lowed its “law or fact” comment in paragraph 25. Only 
+thereafter in paragraph 28 did the court turn to the State's 
+Napue claim and conclude that “[t]he evidence, moreover, 
+does not create a Napue error.” 529 P. 3d, at 226 (footnote 
+omitted). This structure leaves no doubt that § 1089(D)'s re­
+quirements are why the State's concession failed: The appli­
+cation of § 1089(D) in paragraph 26 explained the immedi­
+ately preceding statement that the “State's concession is not 
+based in law or fact.” The merits discussion in paragraph 
+28 was a follow-on, alternative holding. 
+The majority's alternative interpretation is incoherent. 
+According to the Court, the OCCA's analysis proceeded as 
+follows: First, the court asserted that the State's “concession 
+alone cannot overcome the limitations on successive post-
+conviction review,” and expressly cited § 1089(D)'s diligence 
+and actual-innocence requirements. Ibid. Second, the 
+OCCA without explanation switched—in the very next sen­
+tence—to the merits and decided the Napue question in a 
+single, conclusory assertion that the “State's concession is 
+not based in law or fact.” 529 P. 3d, at 226. Third, after 
+summarily deciding the merits of a federal constitutional 
+claim, the OCCA toggled back to the procedural bar in the 
+very next paragraph to explain why Glossip failed to meet 
+the PCPA's procedural requirements. Fourth and fnally, 
+the OCCA circled around to spell out its “antecedent” Napue 
+merits holding. Ante, at 243. This reading is as convoluted 
+and implausible as it sounds. If “the only reason” §1089(D) 
+applied had been because the Napue claim independently 
+Page Proof Pending Publication
+
+Cite as: 604 U. S. 226 (2025) 
+283 
+Thomas, J., dissenting 
+failed on the merits, there would have been no point in dis­
+cussing § 1089(D) in the frst place. Ante, at 243. 
+Finally, the majority cannot fall back on Michigan v. Long, 
+463 U. S. 1032 (1983), which establishes a presumption that 
+a state court has based its decision on federal law when it is 
+“insuffciently `clear from the face of the opinion' ” that the 
+court meant to rely on an independent state-law ground. 
+Ante, at 245 (quoting 463 U. S., at 1040–1041). Here, the 
+OCCA expressly held that § 1089(D) barred any relief based 
+on Napue. 529 P. 3d, at 226. That leaves the “face of the 
+opinion” as “clear” as it gets. Long, 463 U. S., at 1041. The 
+majority's tortured reading of the OCCA's “law or fact” 
+phrase is too farfetched to undermine the force of that “plain 
+statement” that state law resolved the case. Ibid. 
+C 
+Unable to make a plausible case from the four corners of 
+the opinion below, the majority attempts to bolster its read­
+ing by relying on “Oklahoma precedent involving confessions 
+of error.” Ante, at 243. In particular, in a series of deci­
+sions issued between 54 and 106 years ago, the OCCA held 
+that a confession of error must have “a basis in the law and 
+in the record” to be sustained. Ante, 244, and n. 6. Accord­
+ing to the majority, these decisions establish that whenever 
+the State identifes that a federal constitutional error oc­
+curred, all independent legal grounds for sustaining the judg­
+ment disappear. Ante, at 243–245. 
+We disapproved of the majority's method of fnding juris­
+diction in Long. There, we decided that, as a general mat­
+ter, we would no longer “decide issues of state law that go 
+beyond the opinion that we review” to determine whether 
+a judgment rests on an adequate and independent state 
+ground. 463 U. S., at 1040. We adopted this practice be­
+cause the “process of examining state law” ourselves “re­
+quires us to interpret state laws with which we are generally 
+unfamiliar, and which often . . . have not been discussed at 
+Page Proof Pending Publication
+
+284 
+GLOSSIP v. OKLAHOMA 
+Thomas, J., dissenting 
+length by the parties.” Id., at 1039. That concern is on full 
+display here: Not a single merits brief in this case cites any 
+of the decisions invoked by the majority for its grand theory 
+of confessions of error under Oklahoma law; the majority de­
+veloped it entirely sua sponte. Despite wrapping itself in 
+the mantle of Long, the majority disregards one of its cen­
+tral teachings. 
+If we are to look at other OCCA decisions, I would start 
+with history that is more recent and more on point. In re­
+sponse to Glossip's fourth application for post-conviction re­
+lief, the State explicitly “waive[d] its right to argue the 
+claims within this . . . application are waived” under the 
+PCPA. 3 App. 717–718. But, the OCCA refused to accept 
+the waiver, holding that “[t]his Court alone will determine 
+whether the rules of this Court should be abandoned.” Id., 
+at 775; see also ante, at 238. The OCCA thus made clear 
+that it would apply the PCPA's procedural bars whether the 
+State wanted it to or not. It makes no sense to say, just 
+months later—and in the same case—that the OCCA re­
+versed course without explanation and decided that § 1089(D) 
+becomes irrelevant when the State supports the applicant's 
+claim for relief (while at the same time holding that § 1089(D) 
+applies). See ante, at 245. It should go without saying that 
+a decision issued fve months before the decision below in 
+Glossip's own case sheds far more light on what the OCCA 
+meant than decisions issued in different cases a century ago. 
+In any event, the majority vastly overreads the case law 
+it cites. The decisions establish the modest point that a con­
+fession of error does not automatically entitle a defendant 
+to relief; rather, the OCCA will independently “examine the 
+record” to ensure that the confession is “well founded in law.” 
+Raymer v. State, 27 Okla. Crim. 398, 228 P. 500 (1924) (sylla­
+bus by the court); see ante, at 243–244, and n. 6. Of course, 
+a confession that post-conviction relief is warranted is not 
+well founded if the PCPA bars relief. And, those decisions 
+nowhere hold that procedural bars that might render an 
+Page Proof Pending Publication
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+Cite as: 608 U. S. ____ (2026) 
+ALITO, J., dissenting 
+SUPREME COURT OF THE UNITED STATES 
+ASHLEY GRAYSON v. UNITED STATES 
+ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
+STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 
+No. 25–851. Decided June 22, 2026 
+The petition for a writ of certiorari is granted.  The judg­
+ment is vacated, and the case is remanded to the United 
+States Court of Appeals for the Sixth Circuit for further con­
+sideration in light of the position asserted by the Solicitor 
+General in his brief for the United States filed on May 12, 
+2026. 
+JUSTICE ALITO, dissenting. 
+Petitioner challenges the admission of a FaceTime re­
+cording that shows her offering to pay for murder.  The 
+Sixth Circuit held that 18 U. S. C. §2515 did not require 
+suppression of the recording because that provision has a 
+freestanding clean-hands exception. 
+The United States 
+now concedes that the Sixth Circuit erred in applying a 
+clean-hands exception.  Nonetheless, the Government ar­
+gues that any error was harmless.  I agree. Even setting
+aside the FaceTime recording, a mountain of properly ad­
+mitted evidence proved petitioner’s guilt. 
+Most promi­
+nently, the evidence included a recording of a separate call
+petitioner made to the Federal Bureau of Investigation, in
+which she described the contents of the challenged 
+FaceTime call in detail and acknowledged that she had of­
+fered to pay for murder.  Because the FaceTime recording
+was cumulative of other overwhelming evidence of guilt, I 
+would deny the petition. 
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+PRELIMINARY PRINT 
+Volume 595 U. S. Part 2 
+Pages 468–483 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+March 24, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+468 
+OCTOBER TERM, 2021 
+Syllabus 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. 
+WILSON 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 20–804. Argued November 2, 2021—Decided March 24, 2022 
+In 2013, David Wilson was elected to the Board of Trustees of the Houston 
+Community College System (HCC), a public entity that operates various 
+community colleges. Mr. Wilson often disagreed with the Board about 
+the best interests of HCC, and he brought multiple lawsuits challenging 
+the Board's actions. By 2016, these escalating disagreements led the 
+Board to reprimand Mr. Wilson publicly. Mr. Wilson continued to 
+charge the Board—in media outlets as well as in state-court actions— 
+with violating its ethical rules and bylaws. At a 2018 meeting, the 
+Board adopted another public resolution, this one “censuring” Mr. Wil­
+son and stating that Mr. Wilson's conduct was “not consistent with the 
+best interests of the College” and “not only inappropriate, but reprehen­
+sible.” App. to Pet. for Cert. 44a. The Board imposed penalties in 
+addition to the verbal censure, among them deeming Mr. Wilson ineligi­
+ble for Board offcer positions during 2018. Mr. Wilson amended the 
+pleadings in one of his pending state-court lawsuits to add claims against 
+HCC and the trustees under 42 U. S. C. § 1983, asserting that the 
+Board's censure violated the First Amendment. The case was removed 
+to federal court, and the District Court granted HCC's motion to dismiss 
+the complaint, concluding that Mr. Wilson lacked standing under Article 
+III. On appeal, a panel of the Fifth Circuit reversed, holding that 
+Mr. Wilson had standing and that his complaint stated a viable First 
+Amendment claim. 955 F. 3d 490, 496–497. The Fifth Circuit con­
+cluded that a verbal “reprimand against an elected offcial for speech 
+addressing a matter of public concern is an actionable First Amendment 
+claim under § 1983.” Id., at 498. HCC sought review in this Court of 
+the Fifth Circuit's judgment that Mr. Wilson may pursue a First 
+Amendment claim based on a purely verbal censure. 
+Held: Mr. Wilson does not possess an actionable First Amendment claim 
+arising from the Board's purely verbal censure. Pp. 474–483. 
+(a) The First Amendment prohibits laws “abridging the freedom of 
+speech.” When faced with a dispute about the Constitution's meaning 
+or application, “[l]ong settled and established practice is a consideration 
+of great weight.” The Pocket Veto Case, 279 U. S. 655, 689. That prin­
+ciple poses a problem for Mr. Wilson because elected bodies in this coun­
+
+Page Proof Pending Publication
+Cite as: 595 U. S. 468 (2022) 
+469 
+Syllabus 
+try have long exercised the power to censure their members. As early 
+as colonial times, the power of assemblies to censure their members 
+was assumed. And, as many examples show, Congress has censured 
+Members not only for objectionable speech directed at fellow Members 
+but also for comments to the media, public remarks disclosing confden­
+tial information, and conduct or speech thought damaging to the Nation. 
+Censures have also proven common at the state and local level. In fact, 
+no one before the Court has cited any evidence suggesting that a purely 
+verbal censure analogous to Mr. Wilson's has ever been widely consid­
+ered offensive to the First Amendment. Instead, when it comes to dis­
+agreements of this sort, longstanding practice suggests an understand­
+ing of the First Amendment that permits “[f]ree speech on both sides 
+and for every faction on any side.” Thomas v. Collins, 323 U. S. 516, 
+547 (Jackson, J., concurring). Pp. 474–477. 
+(b) What history suggests, the Court's contemporary doctrine con­
+frms. A plaintiff like Mr. Wilson pursuing a First Amendment retalia­
+tion claim must show that the government took an “adverse action” 
+in response to his speech that “would not have been taken absent the 
+retaliatory motive.” Nieves v. Bartlett, 587 U. S. –––, –––. To distin­
+guish material from immaterial adverse actions, lower courts have taken 
+various approaches. But any fair assessment of the materiality of the 
+Board's conduct in this case must account for at least two things. First, 
+Mr. Wilson was an elected offcial. Elected representatives are ex­
+pected to shoulder a degree of criticism about their public service from 
+their constituents and their peers—and to continue exercising their free 
+speech rights when the criticism comes. Second, the only adverse ac­
+tion at issue before the Court is itself a form of speech from Mr. Wilson's 
+colleagues that concerns the conduct of public offce. The First Amend­
+ment surely promises an elected representative like Mr. Wilson the 
+right to speak freely on questions of government policy, but it cannot be 
+used as a weapon to silence other representatives seeking to do the 
+same. The censure at issue before us was a form of speech by elected 
+representatives concerning the public conduct of another elected repre­
+sentative. Everyone involved was an equal member of the same delib­
+erative body. The censure did not prevent Mr. Wilson from doing his 
+job, it did not deny him any privilege of offce, and Mr. Wilson does not 
+allege it was defamatory. Given the features of Mr. Wilson's case, the 
+Board's censure does not qualify as a materially adverse action capable 
+of deterring Mr. Wilson from exercising his own right to speak. 
+Pp. 477–481. 
+(c) Mr. Wilson's countervailing account of the Court's precedent and 
+history rests on a strained analogy between censure and exclusion from 
+offce. While Congress possesses no power to exclude duly elected rep­
+
+470 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Syllabus 
+resentatives who satisfy the prerequisites for offce prescribed in Arti­
+cle I of the Constitution, the power to exclude and the power to issue 
+other, lesser forms of discipline “are not fungible” under the Constitu­
+tion. Powell v. McCormack, 395 U. S. 486, 512. The differences be­
+tween censure and exclusion from offce undermine Mr. Wilson's attempt 
+to rely on either Bond v. Floyd, 385 U. S. 116, or the historical example 
+he cites involving John Wilkes, both of which involved exclusion from 
+offce. Neither history nor this Court's precedents support fnding a 
+viable First Amendment claim here. Pp. 481–482. 
+955 F. 3d 490, reversed. 
+Gorsuch, J., delivered the opinion for a unanimous Court. 
+Richard A. Morris argued the cause for petitioner. With 
+him on the briefs were Jonathan G. Brush, Jeffrey L. Fisher, 
+Edward C. DuMont, E. Ashley Smith, Y. Nicole Montgom­
+ery, Izamara Gamez Anderson, and Lucie M. S. Tredennick. 
+Sopan Joshi argued the cause for the United States as 
+amicus curiae supporting petitioner. With him on the brief 
+were Acting Solicitor General Prelogar, Acting Assistant 
+Attorney General Boynton, Deputy Solicitor General Gan­
+non, and Michael S. Raab. 
+Michael B. Kimberly argued the cause for respondent. 
+With him on the brief were Paul W. Hughes, Sarah P. Ho­
+garth, Eugene R. Fidell, and Keith A. Gross.* 
+*Briefs of amici curiae urging reversal were fled for the State of Texas 
+et al. by Ken Paxton, Attorney General of Texas, Brent Webster, First 
+Assistant Attorney General, Judd E. Stone II, Solicitor General, Benjamin 
+D. Wilson, Deputy Solicitor General, A. Lee Czocher, Assistant Solicitor 
+General, and Beau Carter, Assistant Attorney General, by Karl A. Racine, 
+Attorney General of the District of Columbia, Loren L. Alikhan, Solicitor 
+General, Caroline S. Van Zile, Principal Deputy Solicitor General, and 
+Samson J. Schatz, Assistant Attorney General, by Dawn Cash, Acting 
+Attorney General of Oklahoma, and by the Attorneys General for their 
+respective States as follows: Steve Marshall of Alabama, William Tong of 
+Connecticut, Clare E. Connors of Hawaii, Lawrence G. Wasden of Idaho, 
+Kwame Raoul of Illinois, Jeff Landry of Louisiana, Aaron M. Frey of 
+Maine, Brian E. Frosh of Maryland, Dana Nessel of Michigan, Keith El­
+lison of Minnesota, Aaron D. Ford of Nevada, Josh Shapiro of Pennsylva­
+nia, Sean D. Reyes of Utah, and Mark R. Herring of Virginia; for the 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 595 U. S. 468 (2022) 
+471 
+Opinion of the Court 
+Justice Gorsuch delivered the opinion of the Court. 
+After years of acrimony, the Board of Trustees of the 
+Houston Community College System censured one of its 
+members, David Wilson. Mr. Wilson responded by fling a 
+lawsuit challenging the Board's action. That suit now pre­
+sents us with this question: Did the Board's censure offend 
+Mr. Wilson's First Amendment right to free speech? 
+I 
+A 
+The Houston Community College System (HCC) is a public 
+entity that operates various community colleges in Texas. 
+Its Board of Trustees consists of nine members, each of 
+whom is elected from a single-member district for a 6-year 
+term. Mr. Wilson was elected to the Board in 2013. From 
+the start, his tenure was a stormy one. Often and strongly, 
+he disagreed with many of his colleagues about the direction 
+of HCC and its best interests. Soon, too, he brought various 
+lawsuits challenging the Board's actions. By 2016, these es­
+calating disagreements led the Board to reprimand Mr. Wil­
+son publicly. According to news reports, Mr. Wilson re­
+sponded by promising that the Board's action would “ `never 
+. . . stop me.' ” Brief for Petitioner 3, and nn. 3, 4. 
+Nor did it. In the ensuing months, Mr. Wilson charged 
+the Board in various media outlets with violating its bylaws 
+and ethical rules. He arranged robocalls to the constituents 
+Association of Governing Boards of Universities and Colleges by Jessica 
+L. Ellsworth and Thomas K. Hyatt; and for the Texas Association of 
+School Boards Legal Assistance Fund et al. by Meredith Prykryl Walker. 
+A brief of amici curiae urging affrmance was fled for the American 
+Civil Liberties Union et al. by Emerson Sykes, Jennesa Calvo-Friedman, 
+David D. Cole, Alan Gura, and John W. Whitehead. 
+Briefs of amici curiae were fled for the American Jewish Committee 
+by Gregory E. Ostfeld, Howard Jeruchimowitz, Brian D. Straw, and Marc 
+D. Stern; and for the Foundation for Individual Rights in Education 
+(FIRE) by Eugene Volokh. 
+
+Page Proof Pending Publication
+472 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+of certain trustees to publicize his views. He hired a pri­
+vate investigator to surveil another trustee, apparently seek­
+ing to prove she did not reside in the district that had elected 
+her. He also fled two new lawsuits in state court. In the 
+frst, Mr. Wilson alleged that the Board had violated its by­
+laws by allowing a trustee to vote via videoconference. 
+When his colleagues excluded him from a meeting to discuss 
+the lawsuit, Mr. Wilson fled a second suit contending that 
+the Board and HCC had “ `prohibited him from performing 
+his core functions as a Trustee.' ” Brief in Opposition 8 
+(quoting Plaintiff's Original Pet. in No. 17–71693 (Tex. Dist. 
+Ct., Oct. 24, 2017)). All told, these two lawsuits cost HCC 
+over $20,000 in legal fees. That was on top of more than 
+$250,000 in legal fees HCC incurred due to Mr. Wilson's ear­
+lier litigation. 
+At a 2018 meeting, the Board responded by adopting an­
+other public resolution, this one “censuring” Mr. Wilson. 
+The resolution stated that Mr. Wilson's conduct was “not con­
+sistent with the best interests of the College” and “not only 
+inappropriate, but reprehensible.” App. to Pet. for Cert. 
+44a. The Board also imposed certain penalties. It pro­
+vided that Mr. Wilson was “ineligible for election to Board 
+offcer positions for the 2018 calendar year,” that he was “in­
+eligible for reimbursement for any College-related travel,” 
+and that his future requests to “access . . . funds in his 
+Board account for community affairs” would require Board 
+approval. Ibid. 
+The Board further recommended that 
+Mr. Wilson “complete additional training relating to gover­
+nance and ethics.” Id., at 44a–45a. 
+B 
+Shortly after the Board adopted its second resolution, 
+Mr. Wilson amended the pleadings in one of his pending 
+state-court lawsuits, adding claims against HCC and the 
+trustees under 42 U. S. C. § 1983. Among other things, 
+Mr. Wilson asserted that the Board's censure violated the 
+
+Cite as: 595 U. S. 468 (2022) 
+473 
+Opinion of the Court 
+First Amendment. By way of remedy, he sought injunctive 
+and declaratory relief as well as damages for mental anguish, 
+punitive damages, and attorney's fees. 
+Years of legal twists and turns followed. HCC and the 
+trustees removed the case to federal court. Mr. Wilson then 
+amended his complaint to drop his colleagues from the 
+suit, leaving HCC as the sole defendant. Eventually, HCC 
+moved to dismiss the complaint. 
+The District Court 
+granted the motion, concluding that Mr. Wilson lacked stand­
+ing under Article III. On appeal, a panel of the Fifth Cir­
+cuit reversed, holding that Mr. Wilson had standing and that 
+his complaint stated a viable First Amendment claim. 955 
+F. 3d 490, 496–497 (2020). 
+The Fifth Circuit's merits analysis proceeded in two steps. 
+First, the court concluded that a verbal “reprimand against 
+an elected offcial for speech addressing a matter of public 
+concern is an actionable First Amendment claim under 
+§ 1983.” Id., at 498. Next, the court reasoned that the 
+Board's imposition of other punishments—such as limiting 
+Mr. Wilson's eligibility for offcer positions and his access to 
+certain funds—did “not violate his First Amendment rights” 
+because Mr. Wilson did not have an “entitle[ment]” to those 
+privileges. Id., at 499, n. 55. In sum, the court held that 
+Mr. Wilson's § 1983 action could proceed, but only as to the 
+Board's unadorned censure resolution. HCC's request for 
+rehearing en banc failed by an equally divided vote. 966 
+F. 3d 341 (CA5 2020). 
+In time, HCC fled a petition for certiorari in this Court. 
+It asked us to review the Fifth Circuit's judgment that 
+Mr. Wilson may pursue a First Amendment claim based on 
+a purely verbal censure. Last year, we agreed to take up 
+that question. 593 U. S. ––– (2021). But as merits briefng 
+unfolded, Mr. Wilson did not just seek to defend the Fifth 
+Circuit's judgment; he also sought to challenge it in part. 
+Specifcally, he argued that the Fifth Circuit erred to the 
+extent that it upheld the Board's nonverbal punishments as 
+Page Proof Pending Publication
+
+474 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+consistent with the First Amendment. Generally, however, 
+when a respondent in this Court seeks to alter a lower 
+court's judgment, he must fle and we must grant a cross-
+petition for review. See Genesis HealthCare Corp. v. Sym­
+czyk, 569 U. S. 66, 72 (2013). Mr. Wilson fled no such petition 
+in this case. As a result, we decline to take up his challenge 
+to the Fifth Circuit's judgment, and the only question before 
+us remains the narrow one on which we granted certiorari: 
+Does Mr. Wilson possess an actionable First Amendment 
+claim arising from the Board's purely verbal censure? 
+II 
+A 
+The First Amendment prohibits laws “abridging the free­
+dom of speech.” One obvious implication of that rule is that 
+the government usually may not impose prior restraints on 
+speech. See Near v. Minnesota ex rel. Olson, 283 U. S. 697, 
+718–720 (1931). But other implications follow too. Rele­
+vant here, no one before us questions that, “[a]s a general 
+matter,” the First Amendment prohibits government off­
+cials from subjecting individuals to “retaliatory actions” 
+after the fact for having engaged in protected speech. 
+Nieves v. Bartlett, 587 U. S. –––, ––– (2019) (internal quota­
+tion marks omitted); see also Hartman v. Moore, 547 U. S. 
+250, 256 (2006). Mr. Wilson argues that the Board's censure 
+resolution represents exactly that kind of impermissible re­
+taliatory action. 
+Almost immediately, however, this submission confronts a 
+challenge. When faced with a dispute about the Constitu­
+tion's meaning or application, “[l]ong settled and established 
+practice is a consideration of great weight.” The Pocket 
+Veto Case, 279 U. S. 655, 689 (1929). Often, “a regular 
+course of practice” can illuminate or “liquidate” our founding 
+document's “terms & phrases.” Letter from J. Madison to 
+S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 
+(G. Hunt ed. 1908); see also McCulloch v. Maryland, 4 
+Page Proof Pending Publication
+
+Cite as: 595 U. S. 468 (2022) 
+475 
+Opinion of the Court 
+Wheat. 316, 401 (1819); The Federalist No. 37, p. 229 (C. Ros­
+siter ed. 1961) (J. Madison). That principle poses a problem 
+for Mr. Wilson because elected bodies in this country have 
+long exercised the power to censure their members. In fact, 
+no one before us has cited any evidence suggesting that a 
+purely verbal censure analogous to Mr. Wilson's has ever 
+been widely considered offensive to the First Amendment. 
+As early as colonial times, the power of assemblies in this 
+country to censure their members was “more or less as­
+sumed.” M. Clarke, Parliamentary Privilege in the Ameri­
+can Colonies 184 (1943). It seems, too, that assemblies often 
+exercised the power to censure members for views they ex­
+pressed and actions they took “both within and without the 
+legislature.” D. Bowman & J. Bowman, Article I, Section 5: 
+Congress' Power to Expel—An Exercise in Self-Restraint, 
+29 Syracuse L. Rev. 1071, 1084–1085 (1978) (footnote 
+omitted). 
+The parties supply little reason to think the First Amend­
+ment was designed or commonly understood to upend this 
+practice. To the contrary, the United States Senate issued 
+its frst censure in 1811, after a Member read aloud a letter 
+from former President Jefferson that the body had placed 
+under an “injunction of secrecy.” 22 Annals of Cong. 65–83. 
+The House of Representatives followed suit in 1832, censur­
+ing one of its own for “insulting . . . the Speaker.” 2 A. 
+Hinds, Precedents of the House of Representatives § 1248, 
+pp. 799–800 (1907) (Hinds). Ten years later, the House rep­
+rimanded another Member after he introduced a resolution 
+thought to be damaging to international relations. Id., 
+§ 1256, at 807–808. 
+Many later examples followed these early ones. In 1844, 
+the Senate issued a censure after a Member divulged to the 
+New York Evening Post a confdential message from Presi­
+dent Tyler “outlin[ing] the terms of an annexation agreement 
+with Texas.” U. S. Senate Historical Offce, A. Butler & W. 
+Wolff, United States Senate: Election, Expulsion, and Cen­
+Page Proof Pending Publication
+
+476 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+sure Cases 1793–1990, p. 47 (1995). During the Civil War, 
+Congress censured several Members for expressing support 
+for the Confederacy. See Hinds § 1253, at 803–804 (censure 
+of Rep. Alexander Long); id., § 1254, at 804–805 (censure of 
+Rep. Benjamin G. Harris). In 1954, the Senate “condemned” 
+Senator Joseph McCarthy for bringing “the Senate into dis­
+honor,” citing his conduct and speech both within that body 
+and before the press. 100 Cong. Rec. 16392; see also Butler, 
+United States Senate, at 404–407. The House and Senate 
+continue to exercise the censure power today. See, e. g., 
+Congressional Research Service, J. Maskell, Expulsion, Cen­
+sure, Reprimand, and Fine: Legislative Discipline in the 
+House of Representatives 20 (2016) (documenting censures in 
+the House through 2016). And, as these examples lay bare, 
+Congress has censured Members not only for objectionable 
+speech directed at fellow Members but also for comments to 
+the media, public remarks disclosing confdential informa­
+tion, and conduct or speech thought damaging to the Nation. 
+If anything, censures along these lines have proven more 
+common yet at the state and local level. As early as 1833, 
+Justice Story observed that even “[t]he humblest assembly” 
+in this country historically enjoyed the power to prescribe 
+rules for its own proceedings. 2 Commentaries on the Con­
+stitution of the United States § 835, p. 298. And throughout 
+our history many state and local bodies have employed that 
+authority to prescribe censure processes for their members. 
+See Brief for Petitioner 23–28 (collecting examples). Today, 
+the model manual of the National Conference of State Legis­
+latures contemplates just such procedures too. See Mason's 
+Manual of Legislative Procedure § 561.1 (2020). According 
+to HCC and undisputed by Mr. Wilson, it seems elected bod­
+ies in this country issued no fewer than 20 censures in Au­
+gust 2020 alone. See Pet. for Cert. 19–21. 
+If this longstanding practice does not “put at rest” the 
+question of the Constitution's meaning for the dispute before 
+us, it surely leaves a “considerable impression.” McCul­
+loch, 4 Wheat., at 401. On Mr. Wilson's telling and under 
+Page Proof Pending Publication
+
+Cite as: 595 U. S. 468 (2022) 
+477 
+Opinion of the Court 
+the Fifth Circuit's holding, a purely verbal censure by an 
+elected assembly of one of its own members may offend the 
+First Amendment. Yet we have before us no evidence sug­
+gesting prior generations thought an elected representa­
+tive's speech might be “abridg[ed]” by that kind of counter­
+vailing speech from his colleagues. U. S. Const., Amdt. 1. 
+Instead, when it comes to disagreements of this sort, history 
+suggests a different understanding of the First Amend­
+ment—one permitting “[f]ree speech on both sides and for 
+every faction on any side.” Thomas v. Collins, 323 U. S. 
+516, 547 (1945) (Jackson, J., concurring). 
+B 
+What history suggests, we believe our contemporary doc­
+trine confrms. Under this Court's precedents, a plaintiff 
+pursuing a First Amendment retaliation claim must show, 
+among other things, that the government took an “adverse 
+action” in response to his speech that “would not have been 
+taken absent the retaliatory motive.” Nieves, 587 U. S., 
+at –––. Some adverse actions may be easy to identify—an 
+arrest, a prosecution, or a dismissal from governmental em­
+ployment. See id., at ––– – ––– (arrest); Hartman, 547 U. S., 
+at 256 (prosecution); Perry v. Sindermann, 408 U. S. 593, 
+596–597 (1972) (employment). “[D]eprivations less harsh 
+than dismissal” can sometimes qualify too. Rutan v. Repub­
+lican Party of Ill., 497 U. S. 62, 75 (1990). At the same time, 
+no one would think that a mere frown from a supervisor con­
+stitutes a suffciently adverse action to give rise to an action­
+able First Amendment claim. 
+To distinguish material from immaterial adverse actions, 
+lower courts have taken various approaches. Some have 
+asked whether the government's challenged conduct would 
+“chill a person of ordinary frmness” in the plaintiff's position 
+from engaging in “future First Amendment activity.” 
+Nieves, 587 U. S., at ––– (internal quotation marks omitted). 
+Others have inquired whether a retaliatory action “adversely 
+affected the plaintiff's . . . protected speech,” taking into ac­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+478 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+count things like the relationship between speaker and retal­
+iator and the nature of the government action in question. 
+Suarez Corp. Industries v. McGraw, 202 F. 3d 676, 686 (CA4 
+2000). But whether viewed through these lenses or any 
+other, it seems to us that any fair assessment of the material­
+ity of the Board's conduct in this case must account for at 
+least two things. 
+First, Mr. Wilson was an elected offcial. In this country, 
+we expect elected representatives to shoulder a degree of 
+criticism about their public service from their constituents 
+and their peers—and to continue exercising their free speech 
+rights when the criticism comes. As this Court has put it, 
+“[w]hatever differences may exist about interpretations of 
+the First Amendment, there is practically universal agree­
+ment” that it was adopted in part to “protect the free discus­
+sion of governmental affairs.” Mills v. Alabama, 384 U. S. 
+214, 218 (1966). When individuals “consent to be a candi­
+date for a public offce conferred by the election of the peo­
+ple,” they necessarily “pu[t] [their] character in issue, so far 
+as it may respect [their] ftness and qualifcations for the of­
+fce.” White v. Nicholls, 3 How. 266, 290 (1845). 
+Second, the only adverse action at issue before us is itself 
+a form of speech from Mr. Wilson's colleagues that concerns 
+the conduct of public offce. The First Amendment surely 
+promises an elected representative like Mr. Wilson the right 
+to speak freely on questions of government policy. But just 
+as surely, it cannot be used as a weapon to silence other rep­
+resentatives seeking to do the same. The right to “exam­
+in[e] public characters and measures” through “free com­
+munication” may be no less than the “guardian of every 
+other right.” Madison's Report on the Virginia Resolutions 
+(Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-
+tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the 
+role that elected offcials play in that process “ `makes it all 
+the more imperative that they be allowed to freely express 
+themselves.' ” Republican Party of Minn. v. White, 536 
+U. S. 765, 781 (2002). 
+
+Page Proof Pending Publication
+Cite as: 595 U. S. 468 (2022) 
+479 
+Opinion of the Court 
+Given these features of Mr. Wilson's case, we do not see 
+how the Board's censure could qualify as a materially ad­
+verse action consistent with our case law. The censure at 
+issue before us was a form of speech by elected representa­
+tives. It concerned the public conduct of another elected 
+representative. Everyone involved was an equal member of 
+the same deliberative body. As it comes to us, too, the cen­
+sure did not prevent Mr. Wilson from doing his job, it did not 
+deny him any privilege of offce, and Mr. Wilson does not 
+allege it was defamatory. At least in these circumstances, 
+we do not see how the Board's censure could have materially 
+deterred an elected offcial like Mr. Wilson from exercising 
+his own right to speak. 
+Mr. Wilson's behavior and concessions seem telling. Re­
+call that, after the Board's frst reprimand, Mr. Wilson did 
+not exactly cower silently. Indeed, before us Mr. Wilson 
+does not argue that the Board's initial resolution interfered 
+with his free speech rights in any way. Instead, he confnes 
+his attack to the Board's second reprimand. And even when 
+it comes to that resolution, he does not quibble with its con­
+tents. Mr. Wilson does not suggest, for example, that the 
+Board's criticism of him for “inappropriate” and “reprehensi­
+ble” behavior materially deterred him from speaking his 
+mind. Instead, he submits that the Board's second resolu­
+tion offended the First Amendment only because it was de­
+nominated a disciplinary “censure.” So on Mr. Wilson's tell­
+ing, it seems everything hinges on a subtlety: A reprimand 
+no matter how strongly worded does not materially impair 
+the freedom of speech, but a disciplinary censure does. That 
+much we fnd hard to see. Doubtless, by invoking its “cen­
+sure” authority in the second resolution the Board added a 
+measure of sting. But we cannot see how that alone 
+changed the equation and materially inhibited Mr. Wilson's 
+ability to speak freely. 
+In rejecting Mr. Wilson's claim, we do not mean to suggest 
+that verbal reprimands or censures can never give rise to a 
+First Amendment retaliation claim. It may be, for example, 
+
+480 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+that government offcials who reprimand or censure stu­
+dents, employees, or licensees may in some circumstances 
+materially impair First Amendment freedoms. See gener­
+ally Ibanez v. Florida Dept. of Business and Professional 
+Regulation, Bd. of Accountancy, 512 U. S. 136, 139 (1994) 
+(licensing); Zauderer v. Offce of Disciplinary Counsel of 
+Supreme Court of Ohio, 471 U. S. 626, 655–656 (1985) (same); 
+Holloman v. Harland, 370 F. 3d 1252, 1268–1269 (CA11 2004) 
+(student); Kirby v. Elizabeth City, 388 F. 3d 440, 449 (CA4 
+2004) (employee). Likewise, we do not address today ques­
+tions concerning legislative censures accompanied by punish­
+ments, or those aimed at private individuals. Cf. Kilbourn 
+v. Thompson, 103 U. S. 168, 189–190 (1881) (distinguishing 
+Congress's power to infict certain punishments on its own 
+Members from its power to punish nonmembers). Nor do 
+we pass on the First Amendment implications of censures or 
+reprimands issued by government bodies against govern­
+ment offcials who do not serve as members of those bodies. 
+See, e. g., Jenevein v. Willing, 493 F. 3d 551, 560–561 (CA5 
+2007); Scott v. Flowers, 910 F. 2d 201, 211–213 (CA5 
+1990). 
+History could hold different lessons for cases like these, 
+too. For example, following the Whiskey Rebellion, Feder­
+alists supported by President Washington introduced a pro­
+posal in Congress to denounce “self-created societies” they 
+believed had “ `misrepresent[ed] the conduct of the Govern­
+ment.' ” 4 Annals of Cong. 899 (1794). James Madison and 
+others opposed, and ultimately defeated, the effort in the 
+House of Representatives. In doing so Madison insisted 
+that, in a Republic like ours, “the censorial power is in the 
+people over the Government, and not in the Government 
+over the people.” 
+Id., at 934; see also R. Chesney, 
+Democratic-Republican Societies, Subversion, and the Limits 
+of Legitimate Political Dissent in the Early Republic, 82 
+N. C. L. Rev. 1525, 1560–1566 (2004). When the government 
+interacts with private individuals as sovereign, employer, 
+Page Proof Pending Publication
+
+Cite as: 595 U. S. 468 (2022) 
+481 
+Opinion of the Court 
+educator, or licensor, its threat of a censure could raise First 
+Amendment questions. But those cases are not this one. 
+C 
+Mr. Wilson offers a countervailing account of our prece­
+dent and history, but all of it rests on a strained analogy. 
+To start, he directs us to Bond v. Floyd, 385 U. S. 116 (1966). 
+There, a state legislature refused to seat a duly elected rep­
+resentative. According to the legislature, the representa­
+tive's comments criticizing the Vietnam War were incompati­
+ble with the State's required loyalty oath. This Court held 
+that the legislature's action violated the First Amendment. 
+Id., at 135. And, Mr. Wilson reasons, we must reach the 
+same result here. But that much does not follow quite as 
+seamlessly as Mr. Wilson suggests. The legislature's action 
+in Bond implicated not only the speech of an elected offcial, 
+it also implicated the franchise of his constituents. And it 
+involved not just counterspeech from colleagues but exclu­
+sion from offce. See id., at 123–125. 
+Just three years after Bond, the Court stressed the sa­
+lience of these differences. In Powell v. McCormack, the 
+Court held that Congress possesses no power to exclude duly 
+elected representatives who satisfy the prerequisites for of­
+fce prescribed in Article I of the Constitution. 395 U. S. 
+486, 550 (1969). In doing so, however, the Court took pains 
+to emphasize that the power to exclude and the power to 
+issue other, lesser forms of discipline “are not fungible” 
+under our Constitution. Id., at 512; see also id., at 551–553 
+(Douglas, J., concurring). Mr. Wilson's attempt to analogize 
+his case to Bond thus confates a distinction Powell cautioned 
+us not to confuse. 
+The differences between exclusion and censure also under­
+mine Mr. Wilson's alternative argument—this one concern­
+ing John Wilkes. In 1763, Wilkes “published an attack on a 
+recent [English] peace treaty with France, calling it the 
+product of bribery and condemning the Crown's ministers as 
+Page Proof Pending Publication
+
+482 
+HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON 
+Opinion of the Court 
+the tools of despotism and corruption.” Powell, 395 U. S., 
+at 527 (internal quotation marks omitted). Parliament re­
+sponded by expelling Wilkes from offce and later refusing 
+to seat him despite his repeated reelection. Id., at 527–528. 
+Only in 1782 did Parliament fnally relent, voting to expunge 
+its prior resolutions and resolving that its actions had been 
+“subversive of the rights of the whole body of electors of this 
+kingdom.” Id., at 528 (internal quotation marks omitted). 
+According to Mr. Wilson, the Wilkes affair demonstrates 
+that legislative censures are at odds with the American legal 
+tradition. But, once more, this argument stretches a histor­
+ical analogy too far. The framers may well have had the 
+Wilkes episode in mind when they crafted Clauses in the 
+Constitution limiting Congress's ability to impose its own ad 
+hoc qualifcations for offce or to expel Members. See U. S. 
+Const., Art. I, §§ 2–3, 5; see also Powell, 395 U. S., at 531– 
+539. Undoubtedly, too, the frst set of these constitutional 
+limitations ultimately led the Court in Powell to hold that 
+the House of Representatives may not “exclude members-
+elect for general misconduct not within [the Constitution's] 
+standing qualifcations.” Id., at 528. But Mr. Wilson cites 
+nothing in the Wilkes affair to support his much more ambi­
+tious suggestion that the founding generation understood the 
+First Amendment to prohibit representative bodies from 
+censuring members as the Board did here. If anything, as 
+we have seen, history counsels a very different conclusion. 
+*
+*
+* 
+Our case is a narrow one. It involves a censure of one 
+member of an elected body by other members of the same 
+body. It does not involve expulsion, exclusion, or any other 
+form of punishment. It entails only a First Amendment re­
+taliation claim, not any other claim or any other source of 
+law. The Board's censure spoke to the conduct of offcial 
+business, and it was issued by individuals seeking to dis­
+charge their public duties. Even the censured member con­
+Page Proof Pending Publication
+
+Cite as: 595 U. S. 468 (2022) 
+483 
+Opinion of the Court 
+cedes the content of the censure would not have offended 
+the First Amendment if it had been packaged differently. 
+Neither the history placed before us nor this Court's prece­
+dents support fnding a viable First Amendment claim on 
+these facts. Argument and “counterargument,” not litiga­
+tion, are the “weapons available” for resolving this dispute. 
+Wood v. Georgia, 370 U. S. 375, 389 (1962). The judgment 
+of the Fifth Circuit is 
+Reversed. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A103 
+NATIONAL INSTITUTES OF HEALTH, ET AL. v. 
+AMERICAN PUBLIC HEALTH 
+ASSOCIATION, ET AL. 
+ON APPLICATION FOR STAY 
+[August 21, 2025] 
+The application for stay presented to JUSTICE JACKSON 
+and by her referred to the Court is granted in part and
+denied in part. 
+The application is granted as to the District Court’s
+judgments vacating the Government’s termination of 
+various research-related grants. See Department of Ed. v. 
+California, 604 U. S. ___ (2025) (per curiam). 
+The 
+Administrative 
+Procedure 
+Act’s 
+“limited 
+waiver 
+of 
+[sovereign] immunity” does not provide the District Court 
+with jurisdiction to adjudicate claims “based on” the 
+research-related grants or to order relief designed to
+enforce any “‘obligation to pay money’” pursuant to those 
+grants. Id., at ___ (slip op., at 2).  And while the loss of 
+money is not typically considered irreparable harm, that
+changes if the funds “cannot be recouped” and are thus
+“irrevocably expended.” Philip Morris USA Inc. v. Scott, 
+561 U. S. 1301, 1304 (2010) (Scalia, J., in chambers).  The 
+Government faces such harm here.  The plaintiffs do not 
+state that they will repay grant money if the Government
+ultimately prevails. Moreover, the plaintiffs’ contention 
+that they lack the resources to continue their research 
+projects without federal funding is inconsistent with the 
+proposition that they have the resources to make the 
+Government whole for money already spent.
+The application is otherwise denied. 
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+2 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+BARRETT, J., concurring 
+Paragraphs 3 and 4 of the June 23, 2025 order of the
+United 
+States 
+District 
+Court 
+for 
+the 
+District 
+of 
+Massachusetts, case No. 1:25–cv–10787, and paragraph II 
+of the June 23, 2025 order of the United States District 
+Court for the District of Massachusetts, case No. 1:25–cv– 
+10814, are stayed pending the disposition of the appeal in 
+the United States Court of Appeals for the First Circuit and 
+disposition of a petition for a writ of certiorari, if such a writ
+is timely sought. Should certiorari be denied, this stay shall 
+terminate automatically. In the event certiorari is granted, 
+the stay shall terminate upon the issuance of the judgment 
+of the Court. The Government may raise its arguments as
+to the remainder of the District Court’s judgments in the
+ordinary course. 
+THE CHIEF JUSTICE, JUSTICE SOTOMAYOR, JUSTICE 
+KAGAN, and JUSTICE JACKSON would deny the application 
+in full.
+ JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and 
+JUSTICE KAVANAUGH would grant the application in full.
+ JUSTICE BARRETT, concurring in the partial grant of the 
+application for stay. 
+In recent months, the National Institutes of Health has 
+worked to align its funding with changed policy priorities
+mandated by a series of executive orders.  See Exec. Order 
+No. 14151, 90 Fed. Reg. 8339 (2025); Exec. Order 
+No. 14168, 90 Fed. Reg. 8615 (2025); Exec. Order 
+No. 14173, 90 Fed. Reg. 8633 (2025).  NIH issued internal 
+guidance documents describing those priorities: Going
+forward, the agency will not fund research related to DEI
+objectives, gender identity, or COVID–19. 
+Nor will it 
+continue the practice of awarding grants to researchers 
+based on race. 
+After review, NIH issued numerous 
+decisions terminating existing grants, 
+and various 
+plaintiffs sued, challenging the guidance documents and 
+their 
+individual 
+grant 
+terminations 
+under 
+the 
+
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+3 
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+Cite as: 606 U. S. ____ (2025) 
+BARRETT, J., concurring 
+Administrative Procedure Act.  The District Court declared 
+unlawful and vacated both the guidance and the individual 
+terminations, 
+and 
+the 
+First 
+Circuit 
+denied 
+the 
+Government’s request for a stay.  Both courts treated NIH’s 
+termination of grants and its issuance of guidance as
+distinct agency actions.  The Government sought a stay 
+from this Court. 
+As today’s order states, the District Court likely lacked 
+jurisdiction to hear challenges to the grant terminations, 
+which belong in the Court of Federal Claims (CFC).  See 
+Department of Ed. v. California, 604 U. S. ___ (2025) 
+(per curiam). In my view, however, the Government is not
+entitled to a stay of the judgments insofar as they vacate
+the guidance documents.
+Plaintiffs frequently seek vacatur of internal agency 
+guidance on arbitrary-and-capricious grounds in district 
+court or directly in the D. C. Circuit.  See, e.g., Ciox Health, 
+LLC v. Azar, 435 F. Supp. 3d 30 (DDC 2020) (challenge to 
+HHS guidance); POET Biorefining, LLC v. EPA, 970 F. 3d 
+392 (CADC 2020) (challenge to EPA guidance).  That the 
+agency guidance discusses internal policies related to
+grants does not transform a challenge to that guidance into 
+a claim “founded . . . upon” contract that only the CFC can 
+hear. 28 U. S. C. §1491(a)(1).  So the District Court was 
+likely correct to conclude that it had jurisdiction to
+entertain an APA challenge to the guidance, and it would 
+be confusing for our disposition of this application to
+suggest that the CFC is the right forum for that claim. 
+THE CHIEF JUSTICE and JUSTICE JACKSON maintain that 
+because the District Court is the right forum for the
+challenge to the guidance, it is necessarily also the right
+forum for the challenge to the grant terminations.  Post, at 
+1 (ROBERTS, C. J., concurring in part and dissenting in 
+part); post, at 14–16 (JACKSON, J., concurring in part and 
+dissenting in part). Both logic and law, however, support
+channeling challenges to the grant terminations and 
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+4 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+BARRETT, J., concurring 
+guidance to different forums. First, logic: Vacating the
+guidance does not reinstate terminated grants. 
+If one 
+simply flowed from the other, the District Court would have 
+needed only to vacate the guidance itself. Cf. Bowen v. 
+Massachusetts, 487 U. S. 879, 910 (1988) (one judgment
+vacating HHS decision). Here, by contrast, the District
+Court separately “vacated” the grant terminations and
+ordered the Government to pay plaintiffs sums due under 
+the agreements “forthwith.”  App. to Application 160a.
+Second, law: Even if the guidance and grant terminations
+are linked, vacating the guidance does not necessarily void
+decisions made under it, as the First Circuit recognized.
+145 F. 4th 39, 50 (CA1 2025); see also, e.g., D. A. M. v. Barr, 
+486 F. Supp. 3d 404, 415 (DDC 2020) (vacatur does not 
+necessarily 
+“eras[e] 
+from 
+legal 
+existence 
+all 
+past
+adjudications under the vacated rule”). The claims are 
+legally distinct. And if the CFC has exclusive jurisdiction
+over the grant terminations, see California, 604 U. S., at 
+___ (slip op., at 2), the plaintiffs cannot end-run that limit 
+simply by packaging them with a challenge to agency 
+guidance.1 
+Two-track litigation results from “[t]he jurisdictional
+scheme governing actions against the United States,” which 
+“often requires . . . plaintiffs to file two actions in different
+courts to obtain complete relief in connection with one set 
+of facts.” United States v. Tohono O’odham Nation, 563 
+U. S. 307, 323 (2011) (SOTOMAYOR, J., concurring in 
+judgment); see also ibid. (stating that a claim seeking “to 
+—————— 
+1 Nor is JUSTICE JACKSON correct to say that this approach leaves the 
+plaintiffs without any prospect of relief.  Post, at 14–15.  Each forum has 
+the authority to fully adjudicate the claims over which it has jurisdiction.
+If the CFC concludes that the Government breached a grant agreement, 
+it may award relief to the grantee.  If a district court decides that agency
+guidance violates the APA, it may vacate the guidance, preventing the 
+agency from using it going forward. JUSTICE JACKSON’s fundamental 
+objection is to sending the grant-termination claims to the CFC, but 
+California already addressed that question. 
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+Cite as: 606 U. S. ____ (2025) 
+BARRETT, J., concurring 
+set aside agency action must proceed in district court, but a 
+claim that the same agency action constitutes a taking of 
+property requiring just compensation must proceed in the 
+CFC”).  True, plaintiffs cannot necessarily sue the
+government in two forums simultaneously.  As JUSTICE 
+JACKSON notes, 28 U. S. C. §1500 bars CFC jurisdiction
+over claims pending in other courts when those claims arise
+from “‘substantially the same operative facts.’”  Post, at 15, 
+n. 4. 
+If the challenges to the guidance and grant 
+terminations have the requisite factual overlap—and I am
+not sure that they do—the plaintiffs will have to proceed 
+sequentially rather than simultaneously. 
+But we have 
+previously explained that the statutory scheme puts
+plaintiffs to precisely this choice, Tohono O’odham Nation, 
+563 U. S., at 316–317, and we have rejected the argument 
+that it is unfair to require plaintiffs “to choose between
+partial remedies available in different courts,” id., at 316. 
+Suits against the United States are “available by grace and 
+not by right,” and the relief available is subject to the 
+conditions Congress sets.  Id., at 317. Because of those 
+conditions, my preliminary judgment is that the plaintiffs’ 
+challenges to the grant terminations belong in the CFC, and 
+their APA challenges to the guidance belong in district 
+court. 
+Of course, whether claims about the guidance in this case 
+will succeed is another question. It is not obvious, for 
+instance, that NIH’s guidance is final agency action.  Yet 
+the Government did not press this argument—or any 
+other—in its stay application.2 Instead, its application
+largely ignores the guidance, which suggests that this 
+—————— 
+2 Citing stray references to the guidance, JUSTICE KAVANAUGH draws a 
+different conclusion.  Post, at 1–2 (opinion concurring in part and 
+dissenting in part). I respectfully disagree with his reading of the filings. 
+In my view, the Government plainly raised merits-based arguments 
+regarding the grant terminations, not the guidance.  See Application 29– 
+34. 
+
+ 
+ 
+ 
+ 
+ 
+6 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+BARRETT, J., concurring 
+aspect of the judgments causes it no irreparable harm.  The 
+Government has therefore failed to show that it is entitled 
+to a stay of the judgments insofar as they vacate the
+guidance. 
+Of course, it remains free to challenge the
+District Court’s vacatur of the guidance before the First 
+Circuit. 
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+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of ROBERTS, C. J. 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A103 
+NATIONAL INSTITUTES OF HEALTH, ET AL. v. 
+AMERICAN PUBLIC HEALTH 
+ASSOCIATION, ET AL. 
+ON APPLICATION FOR STAY 
+[August 21, 2025]
+ CHIEF 
+JUSTICE 
+ROBERTS, 
+with 
+whom 
+JUSTICE 
+SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON join,
+concurring in part and dissenting in part. 
+In my view, the District Court’s vacatur of the challenged
+directives distinguishes this case from Department of Ed. v. 
+California, 604 U. S. ___ (2025) (per curiam). This relief— 
+which 
+has 
+prospective 
+and 
+generally 
+applicable
+implications beyond the reinstatement of specific grants—
+falls well within the scope of the District Court’s 
+jurisdiction under the Administrative Procedure Act, 5 
+U. S. C. §701 et seq. And if the District Court had 
+jurisdiction to vacate the directives, it also had jurisdiction 
+to vacate the “Resulting Grant Terminations.” App. to
+Application 148a–152a. 
+The Government has neither 
+contended that the terminations did not result from the 
+directives, nor contested the District Court’s conclusion 
+that the directives constituted final agency action.  To the 
+contrary, it has taken the position that the District Court’s
+two remedies are “inseparable,” Reply 5, and that the 
+directives 
+set 
+forth 
+“a 
+uniform 
+policy” 
+that 
+was 
+“implement[ed] . . . globally,” Application 33. 
+In such 
+circumstances, the District Court was not “required . . . to 
+split [the case] into two parts.” Bowen v. Massachusetts, 
+487 U. S. 879, 911 (1988). 
+
+ 
+ 
+ 
+ 
+   
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of GORSUCH, J. 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A103 
+NATIONAL INSTITUTES OF HEALTH, ET AL. v. 
+AMERICAN PUBLIC HEALTH 
+ASSOCIATION, ET AL. 
+ON APPLICATION FOR STAY 
+[August 21, 2025]
+ JUSTICE GORSUCH, with whom JUSTICE KAVANAUGH 
+joins, concurring in part and dissenting in part. 
+Lower court judges may sometimes disagree with this
+Court’s decisions, but they are never free to defy them.  In 
+Department of Ed. v. California, 604 U. S. ___ (2025) 
+(per curiam), this Court granted a stay because it found the
+government likely to prevail in showing that the district
+court lacked jurisdiction to order the government to pay
+grant obligations. California explained that “suits based on
+‘any express or implied contract with the United States’” do 
+not belong in district court under the Administrative Proce­
+dure Act (APA), but in the Court of Federal Claims under
+the Tucker Act. Id., at ___ (slip op., at 2) (quoting 28 
+U. S. C. §1491(a)(1)).  Rather than follow that direction, the 
+district court in this case permitted a suit involving mate­
+rially identical grants to proceed to final judgment under 
+the APA. As support for its course, the district court in­
+voked the “persuasive authority” of “the dissent[s] in Cali­
+fornia” and an earlier court of appeals decision California 
+repudiated. Massachusetts v. Kennedy, ___ F. Supp. 3d ___, 
+___ (Mass. 2025), App. to Application 232a (App.).  That was 
+error. “[U]nless we wish anarchy to prevail within the fed­
+eral judicial system, a precedent of this Court must be fol­
+lowed by the lower federal courts no matter how misguided 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of GORSUCH, J. 
+the judges of those courts may think it to be.”  Hutto v. Da­
+vis, 454 U. S. 370, 375 (1982) (per curiam).
+In casting California aside, the district court stressed 
+that the Court there granted only interim relief pending ap­
+peal and a writ of certiorari and did not issue a final judg­
+ment on the merits. ___ F. Supp. 3d, at ___, App. 229a. 
+True enough. But this Court often addresses requests for
+interim relief—sometimes pending a writ of certiorari, as in 
+California, and sometimes after a writ of certiorari is 
+granted, as in Mahmoud v. Taylor, 606 U. S. ___ (2025), and 
+Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). 
+And either way, when this Court issues a decision, it con­
+stitutes a precedent that commands respect in lower courts.
+Of course, decisions regarding interim relief are not nec­
+essarily “conclusive as to the merits” because further litiga­
+tion may follow.  Trump v. Boyle, 606 U. S. ___ (2025) (slip 
+op., at 1). But regardless of a decision’s procedural posture,
+its “reasoning—its ratio decidendi”—carries precedential
+weight in “future cases.” Ramos v. Louisiana, 590 U. S. 83, 
+104 (2020) (opinion of GORSUCH, J.); see also Bucklew v. 
+Precythe, 587 U. S. 119, 136 (2019) (“[J]ust as binding as [a] 
+holding is the reasoning underlying it”).  And California’s 
+reasoning was clear.  There, the Court explained that “the
+APA’s limited waiver of immunity does not extend to orders 
+to enforce a contractual obligation to pay money . . . . In­
+stead, the Tucker Act grants the Court of Federal Claims
+jurisdiction over suits based on any express or implied con­
+tract with the United States.”  604 U. S., at ___ (slip op., at 
+2) (internal quotation marks omitted).  That reasoning
+binds lower courts as a matter of vertical stare decisis. 
+Moreover, even probabilistic holdings—such as Califor­
+nia’s top-line conclusion that “the Government is likely to 
+succeed in showing the District Court lacked jurisdiction to 
+order the payment of money under the APA,” id., at ___–___ 
+(slip op., at 1–2)—must “inform how a [lower] court” pro­
+ceeds “in like cases,’’ Boyle, 606 U. S., at ___ (slip op., at 1). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of GORSUCH, J. 
+If nothing else, the promise of our legal system that like
+cases are treated alike means that a lower court ought not
+invoke the “persuasive authority” of a dissent or a repudi­
+ated court of appeals decision to reach a different conclusion 
+on an equivalent record.  ___ F. Supp. 3d, at ___, App. 232a. 
+To be sure, beyond expressing mere disagreement with 
+California, the district court also sought to distinguish it.
+But that effort failed too. This case, the district court as­
+serted, is “somewhat different” from California because the 
+“only claim” there concerned the denial of “previously 
+awarded discretionary grants.” ___ F. Supp. 3d, at ___, 
+App. 228a (internal quotation marks omitted).  But the 
+same holds true here. The only injury the district court
+sought to remedy in its judgments stems from the govern­
+ment’s denial of previously awarded discretionary grants. 
+Accordingly, California controls. 
+Perhaps sensing the problems with the district court’s ap­
+proach, the court of appeals tried to distinguish California 
+in still two other ways. First, the court of appeals suggested
+that the district court had not invoked the APA to order the 
+government to pay money in defiance of California, but in­
+stead invoked the APA only to vacate the government’s de­
+cision to terminate respondents’ grants.  145 F. 4th 39, 51 
+(CA1 2025). This Court’s precedents, however, cannot be so
+easily circumvented. An order vacating the government’s
+decision to terminate grants under the APA is in every
+meaningful sense an order requiring the government to pay 
+those grants.  Even the district court recognized as much, 
+instructing the government that its “vacation of ” the grant 
+terminations should “result in forthwith . . . disbursement 
+of funds” pursuant to the grants.  App. 160a–161a. Second, 
+the court of appeals asserted that, unlike in California, the 
+claims here do not “depen[d] on the terms and conditions of
+the grant awards.” 145 F. 4th, at 52.  But that is also incor­
+rect. In both cases, respondents’ injury and alleged right to
+payment stem from the government’s refusal to pay 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+4 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of GORSUCH, J. 
+promised grants according to the terms and conditions that
+accompany them.1 
+For these reasons, I concur in the Court’s decision to stay
+the district court’s judgments vacating the grant termina­
+tions. If the district court’s failure to abide by California 
+were a one-off, perhaps it would not be worth writing to ad­
+dress it. But two months ago another district court tried to
+“compel compliance” with a different “order that this Court
+ha[d] stayed.” 
+Department of Homeland Security v. 
+D. V. D., 606 U. S. ___, ___ (2025) (KAGAN, J., concurring) 
+(slip op., at 1).  Still another district court recently diverged 
+from one of this Court’s decisions even though the case at
+hand did not differ “in any pertinent respect” from the one 
+this Court had decided. Boyle, 606 U. S., at ___ (slip op., at 
+1). So this is now the third time in a matter of weeks this 
+Court has had to intercede in a case “squarely controlled” 
+by one of its precedents.  Ibid. All these interventions 
+should have been unnecessary, but together they under­
+score a basic tenet of our judicial system: Whatever their 
+own views, judges are duty-bound to respect “the hierarchy
+of the federal court system created by the Constitution and
+Congress.” Hutto, 454 U. S., at 375.2 
+—————— 
+1 JUSTICE JACKSON’s dissent suggests that individuals enjoy a free-
+floating “right” under the APA to ensure the government “engage[s] in 
+reasoned decisionmaking.” Post, at 13, 16. But that, too, is mistaken. 
+To sue under the APA, a litigant must “suffe[r] legal wrong because of 
+agency action.”  5 U. S. C. §702. And here, the alleged legal wrong the 
+district court sought to remedy was the government’s failure to pay 
+promised grants, a point the dissent itself elsewhere acknowledges.  See 
+post, at 13, n. 2 (observing that respondents’ “injury and right to payment 
+actually stem from the Government’s allegedly arbitrary and capricious
+termination of their grant funding” (emphasis in original)). 
+2I would also have stayed the remainder of the district court’s judg­
+ments, which vacated internal agency guidance.  The only injury that 
+gave respondents standing to obtain that relief was the termination of 
+pre-existing grants.  See Application 25–26; Reply 4–5; post, at 15 (JACK­
+SON, J., concurring in part and dissenting in part). True, respondents in 
+this case also asserted injuries from the guidance based on the 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of GORSUCH, J. 
+—————— 
+government’s alleged failure to process new grant applications.  But the 
+district court declined to pass on those allegations, and they therefore 
+cannot provide a basis for the judgments.  See Application 25–26; ___
+F. Supp. 3d ___, ___ (Mass. 2025), App. 208a; App. to Respondent States’
+Opposition 105a–106a.  So all claims on which the district court rendered 
+judgment were “based on” respondents’ contracts with the government, 
+and those judgments were thus entered without jurisdiction.  California, 
+604 U. S., at ___ (slip op., at 2). 
+
+ 
+ 
+ 
+ 
+  
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of KAVANAUGH, J. 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A103 
+NATIONAL INSTITUTES OF HEALTH, ET AL. v. 
+AMERICAN PUBLIC HEALTH 
+ASSOCIATION, ET AL. 
+ON APPLICATION FOR STAY 
+[August 21, 2025]
+ JUSTICE KAVANAUGH, concurring in part and dissenting
+in part.
+ Like JUSTICES THOMAS, ALITO, and GORSUCH, I would 
+grant the Government’s application for an interim stay in 
+full. 
+First, I agree with the Government (and the Court) that
+plaintiffs’ claims challenging NIH’s grant terminations 
+likely belong in the Court of Federal Claims, not in federal
+district court.  This Court previously indicated as much in
+the interim order in Department of Ed. v. California, 604 
+U. S. 
+___ 
+(2025) 
+(per curiam). 
+ 
+The 
+reason 
+is
+ 
+straightforward:  The core of plaintiffs’ suit alleges that the 
+Government unlawfully terminated their grants.  That is a 
+breach of contract claim.  And under the Tucker Act, such 
+claims must be brought in the Court of Federal Claims, not
+federal district court. 28 U. S. C. §1491(a)(1). 
+Second, I also agree with the Government that plaintiffs’ 
+challenge to NIH’s guidance on grant terminations is likely 
+unavailing. For starters, it is not evident that plaintiffs’ 
+challenge to the guidance is separable from their challenge 
+to the grant terminations. But even if it is, plaintiffs are
+unlikely to succeed on the merits of their arbitrary and 
+capricious challenge to the guidance, for reasons that the 
+Government persuasively explained in its application to
+this Court. See Application 29–34; id., at 31 (“The district 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of KAVANAUGH, J. 
+court’s principal objection was that the NIH never defined 
+the term ‘DEI.’ . . . But there is no APA rule that agencies 
+define every term in every internal guidance document,
+particularly when that guidance steers highly discretionary
+decisions over how to allocate limited agency resources”); 
+id., at 32 (“Here, the NIH’s guidance described the
+Administration’s general priorities on research funding and
+instructed implementation on a grant-by-grant basis”); 
+ibid. (“Agency guidance documents do not need to come
+with glossaries just to avoid APA invalidation”); Reply Brief
+11 (“Respondents echo . . . the district court’s criticism of 
+the guidance documents’ failure to explicitly define DEI.
+Respondents ignore case law holding that grant criteria
+need not define terms with exacting precision”). 
+Finally, the harms and equities are weighty on both
+sides. But in my view, they tilt toward the Government
+because plaintiffs have not represented that they would 
+return the grant money if the Government were to 
+ultimately prevail in the merits litigation.
+JUSTICE JACKSON seems to suggest that we can avoid this
+significant (albeit interim) forum-channeling decision by
+simply denying the application.  That is wrong.  We have to 
+decide the application. Denying the application in whole
+(as JUSTICE JACKSON and three others would do) would
+mean that the suit belongs for now in the Federal District
+Court or the First Circuit.  Granting the application in 
+whole (as I and three others would do) would mean that the 
+suit belongs for now in the Court of Federal Claims. 
+Granting in part and denying in part (as the Court’s order 
+does) means that the challenge to the grant terminations 
+belongs for now in the Court of Federal Claims and the 
+arbitrary and capricious claim belongs for now in the
+Federal District Court or the First Circuit.  For this Court, 
+there is no way to avoid deciding the application and 
+thereby making that interim forum-channeling decision. 
+
+ 
+ 
+ 
+  
+  
+ 
+ 
+ 
+3 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of KAVANAUGH, J. 
+*
+*
+* 
+For those reasons, I would grant the Government’s
+application for an interim stay in full. 
+
+ 
+ 
+ 
+ 
+  
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+SUPREME COURT OF THE UNITED STATES 
+No. 25A103 
+NATIONAL INSTITUTES OF HEALTH, ET AL. v. 
+AMERICAN PUBLIC HEALTH 
+ASSOCIATION, ET AL. 
+ON APPLICATION FOR STAY 
+[August 21, 2025]
+ JUSTICE JACKSON, concurring in part and dissenting in 
+part. 
+This past spring, as March turned to April, the Court took
+a mere nine days to address a difficult and nuanced legal
+issue: whether a federal district court or the Court of 
+Federal Claims has statutory jurisdiction over a claim that 
+the Government violated the Administrative Procedure Act 
+(APA), 5 U. S. C. §706, by arbitrarily and capriciously
+terminating federal grants en masse.  See Department of 
+Ed. v. California, 604 U. S. ___ (2025) (per curiam). It chose 
+the Court of Federal Claims. Id., at ___ (slip op., at 2).  I 
+viewed the Court’s intervention then—in an emergency 
+stay posture, while racing against a fast-expiring 
+temporary restraining order—as “equal parts unprincipled 
+and unfortunate.”  Id., at ___ (JACKSON, J., dissenting) (slip 
+op., at 16).
+As it turns out, the Court’s decision was an even bigger
+mistake than I realized.  The Court’s reasoning in 
+California was not only “at the least under-developed, and 
+very possibly wrong,” id., at ___ (KAGAN, J., dissenting) (slip
+op., at 1), but also evidently resolved more than the
+jurisdictional dispute over the particular education-related
+grants at issue in that case. 
+Today’s decision reveals 
+California’s considerable wingspan: That case’s ipse dixit
+now apparently governs all APA challenges to grant­
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+funding determinations that the Government asks us to 
+address in the context of an emergency stay application.  A 
+half paragraph of reasoning (issued without full briefing or 
+any oral argument) thus suffices here to partially sustain 
+the Government’s abrupt cancellation of hundreds of 
+millions of dollars allocated to support life-saving
+biomedical research. 
+For a cautionary tale about lawmaking on the emergency
+docket, look no further than this newest iteration.  By
+today’s order, an evenly divided Court neuters judicial
+review of grant terminations by sending plaintiffs on a 
+likely futile, multivenue quest for complete relief. Neither 
+party to the case suggested this convoluted procedural
+outcome, and no prior court has held that the law requires
+it. But, in the view of the deciding vote, California compels 
+this conclusion. 
+“So only another under-reasoned 
+emergency order undergirds today’s.” Trump v. Boyle, 606 
+U. S. ___, ___ (2025) (KAGAN, J., dissenting from grant of 
+application for stay) (slip op., at 2).
+The Court also lobs this grenade without evaluating 
+Congress’s intent or the profound legal and practical 
+consequences of this ruling. 
+Stated simply: With 
+potentially life-saving scientific advancements on the line,
+the Court turns a nearly century-old statute aimed at
+remedying unreasoned agency decisionmaking into a
+gauntlet rather than a refuge.  But we have no business 
+erecting a novel jurisdictional barrier to judicial review—
+especially when it appears nowhere in the relevant statutes 
+and makes little sense.  Because the Government’s 
+application should have been denied in full, I respectfully 
+dissent in part. 
+I 
+Some background helps to clarify the character of the
+governmental action the Court now bends over backward to 
+accommodate. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+A 
+The National Institutes of Health (NIH) is the largest 
+public funder of medical research in the world.  Congress’s
+express instructions have enabled that status: By statute,
+the NIH must “make grants-in-aid to universities, 
+hospitals, laboratories, and other public or private
+institutions, and to individuals” to contribute to the effort 
+to diagnose, treat, and prevent “physical and mental
+diseases and impairments of man.”  42 U. S. C. §§241(a), 
+(a)(3).
+Various statutory provisions shape the NIH’s discretion 
+in allocating these funds, including in ways that recognize 
+the importance of science for the study, healing, and service
+of a diverse Nation. For instance, Congress requires the 
+National Cancer Institute, an institute within the NIH, to 
+fund “community-based programs designed to assist 
+women who are members of medically underserved 
+populations, low-income populations, or minority groups.”
+§285a–6(c)(1)(C). 
+And it instructs another NIH-based 
+institute, the National Institute on Minority Health and 
+Health Disparities, to “make awards of grants . . . for the 
+purpose of . . . supporting programs of excellence in 
+biomedical and behavioral research training for individuals 
+who are members of minority health disparity populations.” 
+§285t–1(a); see also, e.g., §289a–2(a)(1) (requiring the NIH 
+to ensure that women and members of minority groups are 
+represented in the clinical research it supports). 
+Historically, the NIH has awarded multiyear grants
+pursuant to established statutory criteria and objectives. 
+See, e.g., 42 CFR §52a.5 (2024).  Also historically, the NIH’s
+grant selection process has been rigorously scientific.  See 
+Brief for Association of American Medical Colleges (AAMC) 
+et al. as Amici Curiae 5–8.  Grant terminations, meanwhile, 
+have been rare; according to testimony in this case, the NIH 
+terminated fewer than six grants midstream in the 13 years
+from 2012 to January 20, 2025. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+4 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+The NIH’s implementation of its grantmaking obligations
+changed dramatically in February 2025, after the President 
+signed a trio of executive orders instructing the 
+Government to stop diversity, equity, and inclusion (DEI) 
+initiatives, “gender ideology” promotion, and COVID–19 
+research.1  In response, NIH leadership issued a series of 
+directives ordering termination, en masse, of existing 
+grants that the agency perceived as in tension with the new 
+Administration’s policies. 
+A frantic process followed. As detailed by the District
+Court, the NIH and its constituent institutes subsequently 
+engaged in a “wholesale effort to excise grants in 8 
+categories over a period of less than 90 days.” ___ F. Supp. 
+3d ___, ___ (Mass. 2025), App. to Application 116a (App.). 
+When the dust settled, thousands of grants had been
+canceled, including those supporting research into suicide 
+risk and prevention, HIV transmission, Alzheimer’s, and 
+cardiovascular disease. 
+B 
+1 
+The two informally consolidated cases now before the 
+Court were brought by, first, a group of individual
+researchers, doctors, and unions who depend on NIH 
+funding for their research; and, second, a coalition of 16
+States, suing on behalf of their public universities. The 
+plaintiffs sued in Federal District Court, arguing that the
+NIH had implemented the executive orders in a manner
+that violated the APA, the separation of powers, the
+Spending Clause, and the Constitution’s prohibition 
+against ultra vires action.
+Handling the case with dispatch, the District Court
+initially analyzed what has become the Government’s
+primary contention: that the APA claim is really a breach­
+—————— 
+1See Exec. Order No. 14151, 90 Fed. Reg. 8339 (2025); Exec. Order 
+No. 14168, 90 Fed. Reg. 8615; Exec. Order No. 14173, 90 Fed. Reg. 8633. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+of-contract suit, and that the Tucker Act, 28 U. S. C. §1491, 
+therefore channels the case to the Court of Federal Claims 
+rather than the District Court. As it does here, the 
+Government took inspiration from this Court’s recent order
+in California. 
+But the District Court concluded that 
+California was “somewhat different,” Massachusetts v. 
+Kennedy, ___ F. Supp. 3d ___, ___ (Mass. 2025), App. 228a,
+such that Bowen v. Massachusetts, 487 U. S. 879 (1988), 
+controlled and permitted the case to remain in district 
+court. 
+The basic distinction, the court explained, is that while
+breach-of-contract actions for money damages go to the 
+Claims Court, statutory actions to ensure compliance with
+federal law belong in district court.  California could be 
+conceived of as the former, insofar as it focused only on
+“sums awarded . . . in previously awarded discretionary 
+grants.” App. 228a (internal quotation marks omitted). By
+contrast, this action sought to prevent the NIH “from
+violating the statutory grant-making architecture created 
+by Congress, replacing Congress’ mandate with new 
+policies that directly contradict that mandate, and 
+exercising 
+authority 
+arbitrarily 
+and 
+capriciously”—
+wheelhouse APA contentions.  Id., at 235a. 
+After dismissing some of the plaintiffs’ claims, the
+District Court proceeded directly to a bench trial on the 
+merits. At the trial’s conclusion, the District Court reserved 
+judgment on most claims but ruled on the one it was 
+“confident in” after “a careful review”: that the challenged
+directives and resulting terminations were arbitrary and 
+capricious, and so had to be set aside under the APA.  Id., 
+at 159a–160a; see 5 U. S. C. §706(2)(A). 
+The District Court laid out its factual findings and legal
+conclusions in a 103-page opinion.  With respect to the 
+arbitrariness allegation, the District Court explained,
+among other things, that “DEI”—the central concept the
+executive orders aimed to extirpate—was nowhere defined, 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+6 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+leaving individual agency employees “to arrive at whatever
+conclusion [they] wishe[d].”  ___ F. Supp. 3d, at ___, ___, 
+App. 126a–127a, 131a–132a.  That definitional void left 
+them applying “circular and nonsensical boilerplate
+language,” id., at 129a, to cancel grants without 
+explanation or reason and in a manner that had “absolutely 
+nothing to do with the promotion of science or research,” id., 
+at 52a. In place of science, meanwhile, came something 
+more pernicious: The court found, as a factual matter, “an
+unmistakable pattern of discrimination against women’s
+health issues” and “pervasive racial discrimination”—
+indeed, “palpable” racial discrimination of a sort the judge
+had “never seen” in 40 years on the bench.  Id., at 45a–46a, 
+n. 4, 166a.  The result was a policy of mass grant 
+terminations that was “breathtakingly arbitrary and 
+capricious.” Id., at 124a. So the District Court declared 
+unlawful and vacated the challenged directives and the
+“resulting . . . terminations” of the plaintiffs’ grants.  Id., at 
+148a–152a (capitalization omitted). 
+2 
+After the District Court entered partial final judgment,
+the Government asked that court, and then the First 
+Circuit, to stay that judgment pending appeal. Both courts 
+declined. 
+In response to the Government’s primary
+argument—the Tucker Act one—the First Circuit issued an
+opinion that sought to “harmonize” this Court’s decisions in 
+Bowen, 487 U. S. 879; Great-West Life & Annuity Ins. Co. v. 
+Knudson, 534 U. S. 204 (2002); and California, 604 U. S. 
+___. See 145 F. 4th 39, 50 (2025).  It concluded that those 
+decisions permitted the District Court to enter, as it had,
+“‘prospective relief ’ that will govern ‘the rather complex 
+ongoing relationshi[p]’ between the [NIH] and grant 
+recipients,” 
+especially 
+because 
+the 
+District 
+Court’s 
+determination did not depend on the terms of any contract. 
+Id., at 50–51 (quoting Bowen, 487 U. S., at 905). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+The First Circuit’s stay opinion also evaluated the 
+relative harms and compared the balance of the equities to
+those in California. It concluded that these plaintiffs stood 
+to lose more and the Government less: Unlike in California, 
+these researchers lack the financial wherewithal to keep 
+their programs running on their own—meaning a stay
+would euthanize animal subjects, terminate life-saving
+trials, and close community health clinics.  And unlike in 
+California, there is no fast-expiring temporary restraining
+order incentivizing a rushed drawdown of granted funds.
+Accordingly, the First Circuit declined to stay the District
+Court’s partial judgment pending appeal. 
+C 
+The Government now asks us for a stay.  To obtain one, 
+the Government must make “a strong showing” that it will
+likely succeed on the merits, that it will be irreparably 
+harmed absent a stay, and that the balance of the equities 
+(including the public interest) favors a stay. See Nken v. 
+Holder, 556 U. S. 418, 426 (2009) (internal quotation marks
+omitted). Because two lower courts have already denied 
+stays, the Government bears “an especially heavy burden” 
+to secure one from us. Edwards v. Hope Medical Group for 
+Women, 512 U. S. 1301, 1302 (1994) (Scalia, J., in 
+chambers) (internal quotation marks omitted).
+Yet, today, without any such showing, this Court gives
+the Government much of what it asks for. It splits review
+of the grant terminations from review of the grant
+termination policy—thereby preserving the mirage of
+judicial review while eliminating its purpose: to remedy 
+harms. The Court now holds that a plaintiff who maintains
+that the Government’s midstream termination of promised 
+grant funding was “arbitrary, capricious, an abuse of 
+discretion, or otherwise not in accordance with law,” 5 
+U. S. C. §706(2)(A), can file a claim in federal district court,
+seeking to set aside the unlawful agency guidance that 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+caused it to lose its grant. But if it wants the improperly
+terminated grant funding restored, a lawsuit filed in
+district court will not suffice; apparently, for that remedy, 
+the plaintiff has to bring another legal action in a different 
+court. See ante, at 3–5 (BARRETT, J., concurring in partial 
+grant of application for stay).
+It gets worse. From the logic (such as it is) of the Court’s 
+order, it appears that a plaintiff ’s pursuit of grant 
+reinstatement in the Court of Federal Claims—where 
+today’s ruling shunts them—will be in vain, because the
+Tucker Act “impliedly forbids” that plainly appropriate
+relief. 5 U. S. C. §702.  And worse still, the viability of the
+initial district court action is also in doubt, since a plaintiff
+seeking invalidation of an unlawful grant termination 
+policy standing alone (a posture that today’s decision 
+requires) might still flunk the APA’s final-agency-action 
+test. See ante, at 5–6 (opinion of BARRETT, J.).
+It would have been much simpler for the Court to just
+announce that, regardless of the plain text of the APA or 
+what Congress intended to authorize, we no longer accept 
+that the Government’s grant-termination decisions are
+subject to arbitrary-and-capricious review or that vacatur 
+of an arbitrary grant-termination decision is an available 
+remedy. At least that would have been straightforward.
+Instead, as I explain below, the Court obliquely rewrites
+both the plaintiffs’ complaint and the APA. First, it forces 
+the plaintiffs to allege that the agency has unlawfully 
+breached a grant contract when their actual claim is the 
+unlawful decisionmaking cause of action that the APA 
+plainly authorizes. Then, the Court adopts a bifurcated,
+ultimately ineffectual approach to seeking complete relief
+for the disfigured claim it has created. Today’s order thus
+effectively extinguishes district courts’ power to “set aside”
+arbitrary grant terminations, as that remedial power
+necessarily involves the concomitant restoration of the 
+unlawfully terminated grant funding. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+  
+ 
+9 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+Part II, below, explains why the Court’s order is wrong 
+with respect to both the merits of the underlying
+jurisdictional question and the claim-splitting procedure it
+adopts. 
+Part III demonstrates that the remaining, 
+nonmerits factors weigh heavily against the stay, which 
+means 
+today’s 
+error 
+will 
+have 
+grave 
+real-world 
+consequences.  Either way, the Government’s emergency 
+application should have been denied in full. 
+II 
+A 
+A majority of the Court rightly rejects the Government’s
+frontline merits position: that this whole case belonged in 
+the Court of Federal Claims. Had it prevailed, that view
+would 
+have 
+flatly 
+contravened 
+seven 
+decades 
+of 
+administrative law and practice. 
+See, e.g., Sharp v. 
+Weinberger, 798 F. 2d 1521, 1523 (CADC 1986) (Scalia, J.). 
+It would have also carried astonishing implications—
+including, by the Government’s own admission, that no 
+court would have the power to vacate or enjoin a blatantly 
+discriminatory grant-related policy, such as a blanket ban 
+on federal grants to Black or Catholic researchers.  See 
+Reply 7–8.
+Five Members of the Court reject that radical view today.
+So, district courts may still exercise jurisdiction over—and 
+vacate—grant-related policies that contravene federal law,
+including the one here, which this District Court considered 
+“breathtakingly arbitrary and capricious” and therefore set 
+aside under the APA. ___ F. Supp. 3d, at ___, App. 124a. 
+From there, this case should have been easy.  The sole 
+legal conclusion the District Court reached concerned the
+arbitrary and capricious (i.e., unlawful) nature of the
+challenged directives.  And those directives were the 
+undisputed basis for the plaintiffs’ grant terminations.
+Thus, in the District Court’s view, as in mine, the remedy
+for the unlawful grant-termination directives is obvious: 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+  
+ 
+ 
+ 
+ 
+ 
+10 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+invalidation of the policy and reinstatement of the
+plaintiffs’ grants. 
+Accord, ante, at 1 (ROBERTS, C. J., 
+concurring in part and dissenting in part).  It is, after all, 
+an “uncontroversial” feature of APA review “that, when a 
+court with jurisdiction finds that the plaintiffs before it
+were harmed by an agency decision issued under an illegal 
+rule, the court should vacate that wrongful decision as a 
+remedy.” D. A. M. v. Barr, 486 F. Supp. 3d 404, 416 (DC 
+2020).
+The Court’s order deviates dramatically from this
+ordinary, commonsense approach to APA review.  Its 
+chosen approach—splitting the directives from the grants—
+implies one of two things.  Either the Court doubts that the 
+grant terminations at issue here in fact resulted from the 
+unlawful directives; or it doubts that plaintiffs who prevail 
+in APA cases should see any benefit from their victory.
+The Court’s order does not own either implication—and 
+for good reason. The District Court carefully reinstated (or,
+more precisely, declared unlawful the termination of ) only 
+those grants whose termination “result[ed]” from the
+directives. App. 148a–152a. The causal chain from policy 
+to termination is a factual question, and we are given no
+basis upon which to second-guess the District Court’s view.
+Cf. Trump v. American Federation of Government 
+Employees, 606 U. S. ___, ___–___ (2025) (JACKSON, J., 
+dissenting from grant of application for stay) (slip op., at 8–
+12). Indeed, not even the Government contests—instead, it 
+emphasizes—the fit between directive and implementation.
+See, e.g., Application 25–26; Reply 4–5 (“the guidance led to 
+the termination of [the plaintiffs’] grants”); see also ante, at 
+1 (opinion of ROBERTS, C. J.).  I also do not take the Court 
+to be revisiting, much less unsettling, the (recently
+reaffirmed) basic principle that a prevailing plaintiff should
+generally get to benefit from its victory.  See, e.g., Franklin 
+v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992) 
+(rejecting interpretation of a statute that would “leave 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+11 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+petitioner remediless”); cf. Trump v. CASA, Inc., 606 U. S. 
+___, ___ (2025) (slip op., at 17) (courts should generally 
+grant “complete relief to the plaintiffs before the court” 
+(emphasis deleted)). 
+B 
+So there must be something different about this context— 
+some 
+reason 
+that, 
+normal 
+remedial 
+principles
+notwithstanding, a district court cannot order the 
+restoration of a plaintiff ’s federal grants after it finds that 
+those grants were terminated pursuant to an unlawful
+policy. For this, the Court turns to the Tucker Act.  But the 
+Tucker Act likely has nothing to say about this case.  It 
+certainly neither constructs the jurisdictional maze today’s 
+order sketches nor requires the result today’s order
+presumes (i.e., no relief for unlawfully short-changed 
+grantee-plaintiffs).
+The 
+Government’s 
+jurisdictional 
+argument 
+lies, 
+ironically, at the intersection of two sovereign-immunity
+waivers. 
+The APA waives the Government’s sovereign
+immunity from claims complaining of unlawful agency
+action and “seeking relief other than money damages.”  5 
+U. S. C. §702.  The Tucker Act waives the Government’s 
+sovereign immunity from (as relevant here) money-
+damages claims “founded . . . upon any express or implied 
+contract with the United States,” and it sends such claims 
+(again, as relevant here) to the Court of Federal Claims. 28 
+U. S. C. §1491(a)(1); see United States v. Mitchell, 463 U. S. 
+206, 212 (1983).  The Government does not dispute that the 
+APA’s waiver, by its terms, applies to the claims brought in
+this lawsuit—it does not, for instance, argue that these 
+plaintiffs seek “money damages.” See Application 21–22. 
+So the question is not whether sovereign immunity has been
+waived but which waiver applies: the APA’s or the Tucker
+Act’s. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+12 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+On this point, the APA itself offers guidance by means of
+two intersection-navigating provisions. First and foremost, 
+the APA makes its cause of action available only if there is 
+“no other adequate remedy in a court.”  5 U. S. C. §704. 
+And, notably, the Government does not argue that district 
+court review is unavailable for failure to meet this 
+requirement.  Nor could it reasonably do so, because the 
+Court of Federal Claims is authorized to award only money
+damages for contract breaches, not reinstatement of grant
+funding improperly terminated in violation of federal law. 
+By its plain terms, then, §704 permits an APA lawsuit in
+district court seeking the otherwise unavailable remedy of 
+grant reinstatement. See Bowen, 487 U. S., at 904–905. 
+Recognizing 
+that 
+Bowen 
+forecloses 
+a 
+§704-based
+argument, the Government points instead to §702.  This 
+provision 
+anticipates 
+potential 
+waiver 
+overlap 
+and 
+withdraws the APA’s immunity waiver when plaintiffs 
+attempt to use the APA to obtain relief that “any other
+statute that grants consent to suit expressly or impliedly 
+forbids.” 
+Section 702 thus “prevents plaintiffs from 
+exploiting the APA’s waiver to evade limitations on suit 
+contained in other statutes.”  Match-E-Be-Nash-She-Wish 
+Band of Pottawatomi Indians v. Patchak, 567 U. S. 209, 215 
+(2012).
+But, of course, any statute that might preclude APA relief 
+via §704 (by providing an adequate alternative remedy) or
+§702 (by forbidding the remedy sought) must be “addressed
+to the type of grievance” the APA claim asserts.  See id., at 
+220–221 (quoting H. R. Rep. No. 94–1656, p. 28 (1976)); 
+Maryland Dept. of Human Resources v. Department of 
+Health and Human Servs., 763 F. 2d 1441, 1449 (CADC 
+1985). The relevant part of the Tucker Act is “addressed to” 
+contract claims, which these are not. 
+These plaintiffs’ legal claims have nothing at all to do 
+with individual grant contracts, nor do the plaintiffs seek 
+“past due sums” as relief. See Maine Community Health 
+
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+13 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+Options v. United States, 590 U. S. 296, 326–327 (2020). 
+The plaintiffs do not argue that the Government shorted 
+any of its contractual obligations. Rather, they claim the
+Government flubbed its most basic statutory one: to engage
+in reasoned decisionmaking.2  And they seek not damages 
+for the Government’s contract breach but a mandate that it 
+comply with federal law over the course of the parties’
+“ongoing relationship.”  Bowen, 487 U. S., at 905.3  The 
+plaintiffs, in other words, “asser[t] a grievance altogether 
+different from the kind the [Tucker Act] concerns.”  Match-
+E-Be-Nash-She-Wish Band, 567 U. S., at 216.  And the 
+grievance they assert is “a garden-variety APA claim,” id., 
+at 220—which means it likely belongs in federal district 
+court. 
+The analysis should end there. The Government’s sole
+retort is that, in this context, a winning APA claim—setting
+aside the guidance and, consequently, vacating the 
+—————— 
+2Thus, it mischaracterizes the plaintiffs’ claims to construe them as 
+being based on a contract breach.  It is simply not true that the plaintiffs’
+“injury and alleged right to payment stem from the government’s refusal 
+to pay promised grants according to the terms and conditions that 
+accompany them.”  Ante, at 3–4 (GORSUCH, J., concurring in part and 
+dissenting in part).  Indeed, from these plaintiffs’ perspective, the terms 
+and conditions of the promised grants, and whether or not the 
+Government complied with them, are entirely beside the point—
+regardless, the Government must act (make decisions, including the 
+decision to cancel grants) in accordance with federal law.  So, as the 
+plaintiffs’ complaints and arguments consistently maintain, their injury 
+and right to payment actually stem from the Government’s allegedly 
+arbitrary and capricious termination of their grant funding in violation 
+of the APA. 
+3See also, e.g., Transohio Sav. Bank v. Director, Office of Thrift 
+Supervision, 967 F. 2d 598, 610 (CADC 1992), abrogated on other 
+grounds as recognized in Perry Capital LLC v. Mnuchin, 864 F. 3d 591, 
+620 (CADC 2017) (“The lesson . . . is straightforward: under §702 and the 
+Tucker Act, litigants may bring common-law contract claims only as
+actions for money damages in the Claims Court, but they may bring 
+statutory and constitutional claims for specific relief in the federal 
+district court”). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+14 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+resulting grant terminations—would obligate it to pay 
+money to the plaintiffs. 
+(This central tenet of the
+Government’s argument, by the way, is apparently not 
+shared by JUSTICE BARRETT, whose deciding vote causes a 
+winning APA claim somehow to confer no financial benefit 
+to the injured plaintiffs.) But we have long recognized that
+such a mere “by-product” of APA review does not send a
+case to the Court of Federal Claims.  See Bowen, 487 U. S., 
+at 910; accord, California, 604 U. S., at ___ (slip op., at 2)
+(“[A] district court’s jurisdiction ‘is not barred by the 
+possibility’ that an order setting aside an agency’s action
+may result in the disbursement of funds” (quoting Bowen, 
+487 U. S., at 910)); Department of State v. AIDS Vaccine 
+Advocacy Coalition, 604 U. S. ___, ___ (2025) (ALITO, J., 
+dissenting from denial of application to vacate order) (slip 
+op., at 6) (“Bowen simply recognized a basic reality of APA 
+review: after a court sets aside an agency action, a natural 
+consequence may be the release of funds to the plaintiff
+down the road”).
+Given all this, I would have concluded, at least in this 
+preliminary posture, that the Tucker Act bears not at all on
+this case. 
+C 
+But whatever the Tucker Act might have to say about
+APA claims brought in cases like this one, it surely does not
+compel the bizarre claim-splitting regime the Court
+imposes today. After today’s order, how are plaintiffs like 
+these—federal grantees who believe their grants were
+terminated pursuant to an unlawful policy—to get complete 
+relief?  The Court does not say.  The answer, it seems, is 
+they cannot.
+Such a grantee can operate like the plaintiffs here did, by
+filing an APA claim in district court challenging the policy 
+under which they lost their grants.  Such a grantee can, like
+the plaintiffs here, win that claim and have the policy set 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+15 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+aside as unlawful. And then—what?  The district court that 
+just set aside the unlawful policy apparently cannot 
+“adjudicate claims ‘based on’” the grant terminations that
+resulted from the policy (whatever that means after today) 
+or “order relief designed to enforce any ‘“obligation to pay 
+money”’ pursuant to those grants.” 
+Ante, at 1 (order)
+(quoting California, 604 U. S., at ___ (slip op., at 2)).  But, 
+of course, it is the prospect of getting its wrongfully
+terminated grant money that brings the grantee to court in
+the first place. That prospect is also, one presumes, the only
+(or at least the primary) reason the grantee has Article III 
+standing to sue at all.
+Because past courts recognized the absurdity of such a 
+result, we have already rejected the argument that the
+Tucker Act requires the District Court “to split” cases like 
+this “into two parts.” Bowen, 487 U. S., at 911.  Rather, 
+having struck down unlawful agency action, the District
+Court “also had the authority to grant the complete relief ” 
+that followed. Ibid.4  Under the rule the Court announces 
+—————— 
+4Not only does the Tucker Act not require splitting the case into two; 
+28 U. S. C. §1500 likely forbids it. That provision precludes Claims 
+Court jurisdiction over any claim that shares “substantially the same
+operative facts” with a claim pending in another court, even if the claims
+seek different relief.  United States v. Tohono O’odham Nation, 563 U. S. 
+307, 317 (2011).  So, besides the obvious inefficiency of recruiting two 
+courts to do what one could, §1500 likely precludes the sort of parallel-
+track litigation the Court seems to envision. See ante, at 2 (KAVANAUGH, 
+J., concurring in part and dissenting in part) (explaining that today’s
+order “means that the challenge to the grant terminations belongs for
+now in the Court of Federal Claims and the arbitrary and capricious
+claim belongs for now in the Federal District Court or the First Circuit”); 
+see, e.g., Solenex, LLC v. United States, 163 Fed. Cl. 128, 132–133 (2022).
+Perhaps the district court and Claims Court actions can proceed seriatim 
+rather than simultaneously, assuming the statute of limitations does not 
+run in the meantime.  But seriatim actions would raise tricky questions
+of issue and claim preclusion.  Cf. Petro-Hunt, LLC v. United States, 862 
+F. 3d 1370, 1385–1386 (CA Fed. 2017).  The Court grapples with none of 
+these complexities before sending plaintiffs through the labyrinth it has 
+created. 
+
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+16 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+today, however, no court can reinstate the plaintiffs’ 
+grants—apparently, the Tucker Act “impliedly forbids” it.
+5 U. S. C. §702. 
+This novel reading of the Tucker Act 
+undermines not only Bowen’s holding but also the basic 
+remedial principles underlying it. Forget complete relief— 
+the reasoning of today’s order might leave plaintiffs unable 
+to obtain any effective relief at all. 
+To be specific: “Unlike the district courts, . . . the [Claims
+Court] has no general power to provide equitable relief 
+against the Government or its officers.” United States v. 
+Tohono O’odham Nation, 563 U. S. 307, 313 (2011); see also 
+United States v. King, 395 U. S. 1, 3 (1969) (Claims Court 
+lacked jurisdiction over claim that was “not limited to 
+actual, presently due money damages” but rather sought a
+declaratory judgment that governmental action “was
+legally wrong”).  This means, it seems, that the Claims 
+Court cannot reinstate unlawfully terminated grant
+funding—a distinct remedy from the money damages that 
+JUSTICE BARRETT suggests are still available in the Claims 
+Court. See ante, at 4, n. 1.  And while the Claims Court 
+does have authority to award money damages for a breach
+of contract, it is not clear that it could do so here, where the 
+right the plaintiffs seek to vindicate “is not a contract right”
+but a statutory one. 
+See Crowley Govt. Servs., Inc. v. 
+General Servs. Admin., 38 F. 4th 1099, 1110 (CADC 2022).5 
+This result, it should be evident, is also impossible to 
+reconcile with the Court’s recent pronouncements.  Not so 
+long ago, the Court insisted that “the party-specific
+principles that permeate our understanding of equity”
+instruct courts to award “complete relief ” to plaintiffs and 
+no relief to nonplaintiffs.  CASA, Inc., 606 U. S., at ___, ___ 
+—————— 
+5The Claims Court can adjudicate statutory claims but only those 
+derived from “money-mandating provisions.”  Maine Community Health 
+Options v. United States, 590 U. S. 296, 324 (2020); United States v. 
+Navajo Nation, 556 U. S. 287, 290 (2009).  No one contends that the APA 
+is such a provision. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+17 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+(slip op., at 8, 15).  Today’s exercise of equity flips that 
+proposition on its head.  Non-plaintiffs might see some 
+benefit from district courts’ vacatur of unlawful directives 
+because agencies will not be able to rely on them to cancel 
+grants going forward. 
+But the plaintiffs who filed the 
+lawsuit will see none. 
+In a broader sense, however, today’s ruling is of a piece
+with this Court’s recent tendencies.  “[R]ight when the
+Judiciary should be hunkering down to do all it can to 
+preserve the law’s constraints,” the Court opts instead to 
+make vindicating the rule of law and preventing manifestly 
+injurious Government action as difficult as possible. Id., at 
+___ (JACKSON, J., dissenting) (slip op., at 21).  This is 
+Calvinball jurisprudence with a twist. Calvinball has only 
+one rule: There are no fixed rules.6  We seem to have two: 
+that one, and this Administration always wins.7 
+III 
+This Court has an obligation to balance the equities
+before issuing the “extraordinary” relief of a stay pending 
+appeal, Graves v. Barnes, 405 U. S. 1201, 1203 (1972) 
+(Powell, J., in chambers), by “‘explor[ing] the relative
+harms to applicant and respondent, as well as the interests
+of the public at large,’” Barnes v. E-Systems, Inc. Group 
+Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 
+(1991) (Scalia, J., in chambers) (quoting Rostker v. 
+Goldberg, 448 U. S. 1306, 1308 (1980) (Brennan, J., in 
+—————— 
+6See 
+Oxford 
+English 
+Dictionary 
+(2025), 
+https://www.oed.com/
+dictionary/calvinball_n. 
+7 JUSTICE BARRETT’s separate opinion proves the point.  It injects final 
+agency action into the case as an additional potential barrier to relief,
+suggesting that the only challenge the order leaves open—the one to 
+agency guidance—is in fact foreclosed by a doctrine the Government does 
+not press.  See ante, at 5–6; see also ante, at 4, n. 2 (opinion of GORSUCH, 
+J.) (indicating that plaintiffs lack standing to pursue vacatur of the 
+internal agency guidance). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+18 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+chambers)); see also Nken, 556 U. S., at 435. If the Court 
+had bothered to do so here, the result would be plain.
+At the threshold, before this Court even entertains the 
+factors required for granting a stay application, it ought to
+ensure that the applicant faces the sort of true emergency
+that warrants our consideration of its request and the
+attendant interference with the standard review processes
+pending in the lower courts—what I have elsewhere called 
+a “line-jumping justification.”  Labrador v. Poe, 601 U. S. 
+___, ___ (2024) (JACKSON, J., dissenting from grant of stay) 
+(slip op., at 1).8  Here, the Government does not come close 
+to offering any reason for us to intervene. Its asserted 
+harm—its only asserted harm—is that it might have to
+keep paying out grants it has already committed to paying
+for the few months it will take to appeal the District Court’s
+decision. 
+Those payments are incremental, and the
+Government does not so much as represent their cadence;
+it gives zero information that would enable us to ascertain 
+how much money is on the line in the coming months. 
+—————— 
+8We do not have to decide this case—not in this posture, or, really, 
+ever. But see ante, at 2 (opinion of KAVANAUGH, J.). We exercise an 
+enormous amount of discretion even in the ordinary course.  See 
+Supreme Court Rule 10 (“Review on a writ of certiorari is not a matter of
+right, but of judicial discretion”).  That discretion only expands when we
+are presented with a request for extraordinary relief: Intervention in this
+posture “is not a matter of right, but of discretion sparingly exercised.” 
+Supreme Court Rule 20. Thus, JUSTICE KAVANAUGH’s suggestion that
+the Court has no choice but to decide the parties’ relative interim status
+when an emergency application asks us to do so, see ante, at 2, comes 
+from nowhere; no rule of Supreme Court procedure supports it.  What is 
+more, casting our role as compulsory when it comes to applications of this
+sort contradicts decades of practice.  “The opinions are legion in which 
+individual Justices, reviewing such requests in chambers, declined to 
+intervene—reiterating that ‘such power should be used sparingly and 
+only in the most critical and exigent circumstances.’ ” Libby v. Fecteau, 
+605 U. S. ___, ___ (2025) (JACKSON, J., dissenting from grant of
+application for injunction) (slip op., at 4) (quoting Williams v. Rhodes, 89 
+S. Ct. 1, 2, 21 L. Ed. 2d 69 (1968) (Stewart, J., in chambers)). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+19 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+The Government fares no better under the traditional 
+stay factors, even if this Court’s attention were warranted.
+As it did in California, the Court concludes that the 
+Government faces irreparable harm simply because the 
+plaintiffs 
+do 
+not 
+pinky-promise 
+to 
+reimburse 
+the 
+Government if the Government ultimately prevails.
+Whether or not that correctly states the law of irreparable 
+harm, but see Nken, 556 U. S., at 433–434 (stay applicant 
+bears burden), the gauge by which the Court is measuring 
+harm seems significantly off.9  The harm that the plaintiffs 
+and the public will suffer from a stay plainly dwarfs the
+purportedly irreparable injury to the Government if a stay
+is denied. 
+For the Government, the incremental 
+expenditure of money is at stake.  For the plaintiffs and the
+public, scientific progress itself hangs in the balance—along 
+with the lives that progress saves. 
+Make no mistake: Per the evidence in front of the District 
+Court, the forward march of scientific discovery will not 
+only be halted—it will be reversed.  Because “studies and 
+researchers cannot be held in stasis,” “there is no way to 
+recover the lost time, research continuity, or training value 
+once disrupted.” 145 F. 4th, at 55 (internal quotation marks
+omitted; emphasis deleted). Thus, yearslong studies will 
+lose validity. Animal subjects will be euthanized.  Life­
+saving medication trials will be abandoned. 
+Countless 
+researchers will lose their jobs.  And community health 
+—————— 
+9The Government promised grant money to the plaintiffs, and now it 
+has changed its mind.  These things happen.  Whether the law permits 
+the Government to terminate these grants in this manner is the nub of
+the instant dispute.  Even if the Government is ultimately deemed
+entitled to do what it has done, why is it harmed (in any meaningful
+sense) if it cannot recover the previously promised grant payments that 
+happen to issue while a court is deciding the lawfulness of its change of
+heart? Far from being injurious, one might think that those interim 
+payments are a fair price to pay for the disruption the Government’s
+choice to abruptly renege on its promises has caused. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+ 
+20 
+NATIONAL INSTITUTES OF HEALTH v. AMERICAN 
+PUBLIC HEALTH ASSN. 
+Opinion of JACKSON, J. 
+clinics (providing, inter alia, preventative treatment for 
+infectious diseases) will close.  Ibid. 
+These harms extend well beyond the plaintiffs in this 
+case. Amici collectively representing the vast majority of
+NIH grantees detail the devastating and irrevocable 
+damage to the “symbiotic relationship” between the 
+Government and the Nation’s research community that an
+abrupt cessation of funding would cause, not to mention the 
+harm to the global primacy of American science.  Brief for 
+AAMC et al. as Amici Curiae 3, 16–24.  And, as Congress
+recognized when it made the NIH the world’s largest public
+scientific funder, scientific advancement lifts all boats.  The 
+harm is not just to researchers who will lose their 
+livelihoods; vulnerable members of our society will also lose
+the benefits of their research. 
+Notably, too, these considerations represent just the 
+consequences of a stay in this case.  But the Court evidently
+wishes to impose its cumbersome, multistep judicial-review
+process on any grantee that attempts to preserve its 
+research advancements by filing a lawsuit (if indeed the
+Court envisions any path to full recovery for such grantees
+at all). So, take the aforementioned practical harms to the 
+researchers, subjects, and institutions that have filed the
+instant lawsuits and multiply them—and again, and again,
+and again.
+A stay seems like a modest step. But it is an equitable 
+one, and equity ultimately aims to ensure fairness by 
+reducing harm.  With this deployment of our equitable
+powers, the Court permits precisely the sort of harm 
+equitable discretion exists to prevent. 
+*
+*
+* 
+At a time when the Executive Branch is racing to 
+terminate federal grants on a mass scale—and, according 
+to too many courts to count, often unlawfully—this Court 
+has now constructed a deeply inefficient and likely 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+21 
+ 
+Cite as: 606 U. S. ____ (2025) 
+Opinion of JACKSON, J. 
+impotent scheme of judicial review for grant-related APA 
+claims 
+(at 
+least 
+until 
+plenary 
+review 
+forces 
+reconsideration). It has done so without bothering to assess
+whether Congress intended such a scheme, and in a manner 
+that 
+requires 
+second-guessing 
+the 
+District 
+Court’s 
+unchallenged factual findings, muddying basic legal
+principles, and unraveling valuable scientific research. 
+The approach the Court adopts today (which, again, no 
+party advocated for) neither coheres legally nor operates 
+practically.  So, unfortunately, this newest entry in the
+Court’s quest to make way for the Executive Branch has
+real consequences, for the law and for the public.
+Fortunately, at least for the law, this order is not the last
+word, as it is not “conclusive as to the merits.”  Boyle, 606 
+U. S., at ___ (slip op., at 1). For the public’s sake, one can 
+only hope that affected grant recipients can find a way to
+maintain their research studies—and their legal claims—
+long enough to give the Court the chance to change its mind. 
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+PRELIMINARY PRINT 
+Volume 605 U. S. Part 2 
+Pages 395–421 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 12, 2025 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2024 
+395 
+Syllabus 
+MARTIN, individually and as parent and next 
+friend of G. W., a minor, et al. v. UNITED 
+STATES et al. 
+certiorari to the united states court of appeals for 
+the eleventh circuit 
+No. 24–362. Argued April 29, 2025—Decided June 12, 2025 
+On October 18, 2017, the FBI raided the wrong house in suburban Atlanta. 
+Offcers meant to execute search and arrest warrants at a suspected 
+gang hideout at 3741 Landau Lane but instead stormed 3756 Denville 
+Trace, a quiet family home occupied by petitioners Hilliard Toi Cliatt, 
+his partner Curtrina Martin, and her 7-year-old son. A six-member 
+SWAT team breached the front door, detonated a fash-bang grenade, 
+and assaulted the innocent occupants before realizing their mistake. 
+The cause of the error was Special Agent Guerra's reliance on a personal 
+GPS device, combined with the team's failure to notice the street sign 
+for “Denville Trace” and the house number visible on the mailbox. Left 
+with personal injuries and property damage, petitioners sued the United 
+States under the Federal Tort Claims Act (FTCA), 28 U. S. C. § 2671 
+et seq., seeking damages resulting from the offcers' alleged negligent 
+and intentional actions during the raid. The district court granted 
+summary judgment to the government. The Eleventh Circuit affrmed, 
+applying a unique approach to FTCA claims. 
+The FTCA waives the federal government's sovereign immunity from suit 
+as to certain torts committed by federal employees acting within the 
+scope of their employment. But that waiver is subject to statutory ex­
+ceptions, including two relevant to a law enforcement misconduct case 
+like this one. The frst is the intentional-tort exception in § 2680(h), 
+which bars claims against the government for 11 enumerated intentional 
+torts. The second is the discretionary-function exception in § 2680(a), 
+which bars claims against the government that are based on an offcial's 
+exercise of discretionary functions. Section 2680(h) also contains a 
+“law enforcement proviso” which countermands the intentional-tort ex­
+ception, allowing suits for six specifed torts (including assault, battery, 
+false imprisonment, and false arrest) to proceed against the United 
+States when the torts are committed by “investigative or law enforce­
+ment offcers.” While most courts hold that the law enforcement pro­
+viso applies only to the intentional-tort exception, the Eleventh Circuit's 
+approach is different in two key respects. First, the Eleventh Circuit 
+alone holds that the proviso overrides all exceptions in § 2680, including 
+
+396 
+MARTIN v. UNITED STATES 
+Syllabus 
+the discretionary-function exception, meaning that intentional-tort 
+claims covered by the proviso automatically proceed to the merits with­
+out further analysis of other applicable § 2680 exceptions. Second, to 
+compensate for this plaintiff-friendly approach, the Eleventh Circuit 
+permits the government to assert a restrictive Supremacy Clause de­
+fense at the liability stage, allowing the government to escape liability 
+when an offcer's actions have “some nexus with furthering federal pol­
+icy” and reasonably “compl[y] with the full range of federal law.” Den-
+son v. United States, 574 F. 3d 1318, 1348. 
+Applying its distinctive approach, the Eleventh Circuit held that the 
+law enforcement proviso protected petitioners' intentional-tort claims 
+from both the intentional-tort and discretionary-function exceptions. 
+The court dismissed petitioners' negligence claims under the 
+discretionary-function exception, reasoning that Special Agent Guerra 
+enjoyed discretion in preparing for the warrant execution. On the mer­
+its of the remaining intentional-tort claims, the court found the gov­
+ernment had a valid Supremacy Clause defense and granted summary 
+judgment for the United States. 
+Held: 
+1. The law enforcement proviso in § 2680(h) overrides only the 
+intentional-tort exception in that subsection, not the discretionary-
+function exception or other exceptions throughout § 2680. Pp. 403–408. 
+(a) The text and structure of § 2680 demonstrate that the law en­
+forcement proviso applies only to the intentional-tort exception. The 
+proviso appears within the same subsection and sentence as the 
+intentional-tort exception, refecting the established principle that stat­
+utory provisos generally modify only the provisions in which they ap­
+pear. Section 2680 contains 13 discrete exceptions. Coupled with the 
+lead-in clause, each exception forms a separate sentence and operates 
+as a structurally distinct provision. The proviso addresses the same 
+subject matter as subsection (h)—intentional torts—while other excep­
+tions cover entirely different topics like lost mail, combat injuries, and 
+quarantine impositions. Further, the proviso's defnitional sentence ex­
+pressly limits the defnition of “investigative or law enforcement offcer” 
+to “this subsection” (i. e., subsection (h)), even though the phrase “law 
+enforcement offcer” appears elsewhere in §2680. Congress's choice to 
+embed the proviso within subsection (h) rather than place it at the end 
+of the full list of exceptions, as it sometimes does with broadly applicable 
+provisos, further confrms the proviso's limited application to subsection 
+(h) alone. Pp. 404–407. 
+(b) Petitioners' arguments for broader application of the proviso 
+are unpersuasive. While the proviso mirrors the language of § 2680's 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 395 (2025) 
+397 
+Syllabus 
+lead-in clause by stating that § 1346(b) “shall apply” rather than “shall 
+not apply,” this textual similarity does not demonstrate that the proviso 
+applies to all exceptions, which form discrete instructions that may be 
+understood completely without reference to other provisions. The ab­
+sence of limiting language in the proviso's frst sentence does not expand 
+its scope beyond subsection (h), as Congress accomplished that limita­
+tion through the proviso's placement within the same sentence as the 
+intentional-tort exception. Legislative history suggesting Congress in­
+tended to address wrong-house raids broadly cannot displace what the 
+law's terms clearly direct, as legislative history is not the law and Mem­
+bers of Congress may have had multiple purposes in mind when crafting 
+the proviso. Pp. 407–408. 
+2. The Supremacy Clause does not afford the United States a defense 
+in FTCA suits. The FTCA is the “supreme” federal law governing 
+the United States' tort liability and serves as the exclusive remedy for 
+damages claims arising from federal employees' offcial conduct. The 
+statute generally makes the government liable under state law on the 
+same terms as a private individual would be liable under the law of the 
+place where the tortious conduct occurred. Because the FTCA incor­
+porates state law as the liability standard, there is typically no confict 
+between federal and state law for the Supremacy Clause to resolve. 
+While federal law may sometimes displace state law in FTCA suits 
+where a constitutional text or federal statute supplies controlling liabil­
+ity rules, the Eleventh Circuit identifed no such federal statute or con­
+stitutional provision displacing Georgia tort law in this case. The 
+court's reliance on In re Neagle, 135 U. S. 1, is misplaced, as that 19th­
+century decision involved a federal offcer's immunity from state crimi­
+nal prosecution for acts necessary and proper in discharging federal 
+duties, not the federal government's liability under a statute that ex­
+pressly subjects it to state tort law on the same terms as private parties. 
+Section 2674 specifes the defenses available to the government, includ­
+ing judicial or legislative immunity and other defenses to which the 
+United States is entitled, but these do not include the Eleventh Circuit's 
+novel Supremacy Clause defense. Pp. 409–413. 
+3. On remand, the Eleventh Circuit should consider whether subsec­
+tion (a)'s discretionary-function exception bars either the plaintiffs' neg­
+ligent- or intentional-tort claims—undertaking that assessment without 
+reference to the mistaken view that the law enforcement proviso applies 
+to subsection (a). The court must then ask of any surviving claims 
+whether, under Georgia state law, a “private individual under like cir­
+cumstances” would be liable for the acts and omissions the plaintiffs 
+allege, subject to the defenses discussed in § 2674—not a Supremacy 
+Clause defense. 
+
+398 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+Remaining questions surrounding whether and under what circum­
+stances the discretionary-function exception may ever foreclose a suit 
+like this one lie well beyond the two questions the Court granted certio­
+rari to address, and their resolution would beneft from the Eleventh 
+Circuit's careful reexamination of this case in the first instance. 
+Pp. 413–415. 
+Vacated and remanded. 
+Gorsuch, J., delivered the opinion for a unanimous Court. Soto-
+mayor, J., fled a concurring opinion, in which Jackson, J., joined, post, 
+p. 415. 
+Patrick Jaicomo argued the cause for petitioners. With 
+him on the briefs were Anya Bidwell and Jared McClain. 
+Frederick Liu argued the cause for respondents. With 
+him on the brief were Acting Solicitor General Harris, Act­
+ing Assistant Attorney General Roth, Deputy Solicitor Gen­
+eral Kneedler, and Joshua M. Salzman. 
+Christopher Mills, by invitation of the Court, 604 U. S. 
+1115, argued the cause and fled a brief as amicus curiae in 
+support of the judgment below on Question 1.* 
+Justice Gorsuch delivered the opinion of the Court. 
+If federal offcers raid the wrong house, causing property 
+damage and assaulting innocent occupants, may the home­
+owners sue the government for damages? The answer is 
+*Briefs of amici curiae urging reversal were fled for America's Future 
+et al. by William J. Olson, Jeremiah L. Morgan, Robert J. Olson, and 
+Jeffrey C. Tuomala; for the Constitutional Accountability Center by Eliz­
+abeth B. Wydra and Brianne J. Gorod; for Members of Congress by Jona­
+than C. Bond, Jeff Liu, and Lavi M. Ben Dor; for the National Police 
+Accountability Project et al. by Charles A. Rothfeld, Paul W. Hughes, 
+Eugene R. Fidell, and John W. Whitehead; for the New Civil Liberties 
+Alliance by Casey Norman, Jenin Younes, and Mark Chenoweth; for the 
+North Central Pennsylvania Trial Lawyers Association by Paul Koster; 
+for Public Accountability et al. by Athul K. Acharya, Clark M. Neily III, 
+Cecillia D. Wang, Brett M. Kaufman, Scott Michelman, and Cory Isaac-
+son; for Public Citizen by Scott L. Nelson and Allison M. Zieve; and for 
+Gregory C. Sisk by Geoffrey M. Pipoly and Matthew Stanford. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+399 
+Opinion of the Court 
+not as obvious as it might be. All agree that the Federal 
+Tort Claims Act permits some suits for wrong-house raids. 
+But the scope of the Act's permission is much less clear. 
+This case poses two questions about the Act's application: 
+one concerning the FTCA's sovereign-immunity waiver, and 
+the other touching on the defenses the United States may 
+assert. 
+I 
+A 
+In the predawn hours of October 18, 2017, the Federal Bu­
+reau of Investigation raided the wrong house in suburban 
+Atlanta. Offcers meant to execute search and arrest war­
+rants at a suspected gang hideout, 3741 Landau Lane. In­
+stead, they stormed a quiet family home, 3756 Denville 
+Trace, occupied by Hilliard Toi Cliatt, his partner Curtrina 
+Martin, and her 7-year-old son G. W. App. to Pet. for Cert. 
+3a–4a. 
+A six-member SWAT team, led by FBI Special Agent 
+Lawrence Guerra, breached the front door and detonated a 
+fash-bang grenade. Id., at 7a–8a. Fearing a home inva­
+sion, Mr. Cliatt and Ms. Martin hid in a bedroom closet. Id., 
+at 8a. But the SWAT team soon found the couple's hiding 
+spot, dragged Mr. Cliatt from the closet, “threw [him] down 
+on the foor,” handcuffed him, and began “bombarding [him] 
+with . . . questions.” Id., at 79a. Meanwhile, another off­
+cer trained his weapon on Ms. Martin, who was lying on the 
+foor half-naked, having fallen inside the closet. Id., at 8a, 
+89a. Only then did another offcer stumble across some mail 
+with the home's address on it and realize the team had the 
+wrong house. Id., at 8a. 
+The cause of the offcers' mistake? In preparation for the 
+raid, Agent Guerra visited the correct house to document its 
+features and identify a staging area for the SWAT team. 
+Id., at 5a. But, he says, when he used his personal GPS to 
+navigate to 3741 Landau Lane on the day of the raid, it led 
+Page Proof Pending Publication
+
+400 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+him to 3756 Denville Trace. 631 F. Supp. 3d 1281, 1287 (ND 
+Ga. 2022). No one could confrm as much later because 
+Agent Guerra “threw . . . away” his GPS device “not long 
+after” the raid. Id., at 1288. And it seems the agents no­
+ticed neither the street sign for “Denville Trace” nor the 
+house number, which was visible on the mailbox at the end 
+of the driveway. Ibid.; Tr. of Oral Arg. 38. Apparently, 
+too, Agent Guerra failed to appreciate that a different car 
+was parked in the driveway, one “not present . . . during [his] 
+previous visit.” 631 F. Supp. 3d, at 1288. 
+Left with personal injuries and property damage—but few 
+explanations and no compensation—Mr. Cliatt and Ms. Mar­
+tin sued the United States. They did so under the Federal 
+Tort Claims Act, 28 U. S. C. § 2671 et seq., alleging that the 
+offcers had committed various negligent and intentional 
+torts, App. 8–14. 
+B 
+After discovery and motions practice, the district court 
+rejected each of the plaintiffs' claims and granted summary 
+judgment to the government. The Eleventh Circuit af­
+frmed and, in doing so, relied on an understanding of the 
+FTCA that no other circuit has adopted. To appreciate 
+what sets the Eleventh Circuit apart and how its approach 
+affected its analysis of the plaintiffs' claims, it helps to begin 
+by outlining how this suit would have proceeded elsewhere. 
+The FTCA allows those injured by federal employees to 
+sue the United States for damages. The statute achieves 
+that end by waiving, in 28 U. S. C. § 1346(b), the federal gov­
+ernment's sovereign immunity for “certain torts committed 
+by federal employees acting within the scope of their 
+employment.” Brownback v. King, 592 U. S. 209, 212 
+(2021) (internal quotation marks omitted). But the statute's 
+waiver is subject to 13 exceptions that claw back the govern­
+ment's immunity in certain circumstances. Set out in § 2680, 
+most of these 13 exceptions are obviously inapplicable to 
+suits alleging police misconduct within the United States. 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+401 
+Opinion of the Court 
+But two in particular—the discretionary-function exception 
+and the intentional-tort exception—sometimes come into 
+play. 
+In a suit like this one, most courts begin by assessing the 
+intentional-tort exception. Located in subsection (h) of 
+§ 2680, it prohibits claims alleging any of 11 enumerated 
+torts. But the exception is itself subject to a “law enforce­
+ment proviso.” Millbrook v. United States, 569 U. S. 50, 55 
+(2013). That proviso countermands the exception with re­
+spect to six intentional torts (including assault, battery, false 
+imprisonment, and false arrest) by “investigative or law en­
+forcement offcers.” § 2680(h). So if a plaintiff alleges that 
+a federal law enforcement offcer committed one or more of 
+those six torts, the proviso will ensure those claims survive 
+an encounter with the intentional-tort exception. Id., at 
+55–56. 
+Next, most courts turn to the discretionary-function ex­
+ception. Housed in subsection (a) of § 2680, this exception 
+bars “[a]ny claim” based on the exercise of an offcial's “dis­
+cretionary function.” Faced with that instruction, most 
+courts ask whether the exception precludes any of the plain­
+tiff's remaining tort claims. And here, the answer is often 
+less clear cut. The discretionary-function exception, this 
+Court has said, forbids suits challenging decisions that “in­
+volv[e] an element of judgment or choice” of a “kind that 
+the . . . exception was designed to shield.” United States v. 
+Gaubert, 499 U. S. 315, 322–323 (1991) (alteration in original; 
+internal quotation marks omitted). But several of our lower 
+court colleagues report that they have “struggl[ed]” to dis­
+cern what this direction requires of them. See, e. g., Xi v. 
+Haugen, 68 F. 4th 824, 842 (CA3 2023) (Bibas, J., concurring). 
+So, for example, some lower courts have held that the 
+discretionary-function exception does not shield “careless” or 
+“unconstitutional” police conduct from judicial scrutiny, but 
+others have taken a contrary view and read the exception 
+much more broadly. Id., at 843; Pet. for Cert. 28–34. 
+Page Proof Pending Publication
+
+402 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+Finally, if any of the plaintiff 's claims survive the 
+discretionary-function exception and thus fall within the 
+FTCA's waiver of sovereign immunity, courts turn to a third 
+question: Is the government liable to the plaintiff on the mer­
+its? When it comes to that question, the FTCA provides that 
+the government will usually be liable to the plaintiff if a 
+“private individual under like circumstances,” § 2674, would 
+be liable under “the law of the place” where the government 
+employee's wrongful “act or omission occurred,” § 1346(b)(1). 
+Ordinarily, then, courts will fnd for the plaintiff if he can 
+demonstrate that federal offcials committed a tort under ap­
+plicable state law. See Brownback, 592 U. S., at 218. 
+Now compare that approach to the Eleventh Circuit's. 
+That court begins much as others do, asking whether the 
+law enforcement proviso permits a plaintiff's intentional-tort 
+claims to advance past subsection (h)'s intentional-tort ex­
+ception. See Nguyen v. United States, 556 F. 3d 1244, 1260 
+(2009). 
+But from there, the Eleventh Circuit proceeds quite differ­
+ently. 
+Rather than asking whether the discretionary-
+function exception bars either the plaintiff's negligent-tort 
+claims or his intentional-tort claims, as most courts do, the 
+Eleventh Circuit applies that exception only to the plaintiff's 
+negligence claims. The Eleventh Circuit does so because, in 
+its view, the law enforcement proviso does not just override 
+the intentional-tort exception, it also overrides all the other 
+exceptions in § 2680, the discretionary-function exception in­
+cluded. Id., at 1257. Under that approach, any intentional-
+tort claim covered by the proviso automatically proceeds to 
+the merits—no matter what any other exception has to say. 
+To compensate for its expansive and plaintiff-friendly 
+reading of the proviso, the Eleventh Circuit then takes a re­
+strictive and defendant-friendly view at the FTCA's liability 
+stage. In other courts, an FTCA plaintiff will usually pre­
+vail if he can show a “private individual under like circum­
+stances,” §2674, would be liable under “the law of the place” 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 395 (2025) 
+403 
+Opinion of the Court 
+where the government employee's wrongful “act or omission 
+occurred,” § 1346(b)(1). But in the Eleventh Circuit, the 
+government may assert a particular affrmative defense 
+under the Constitution's Supremacy Clause. See Denson v. 
+United States, 574 F. 3d 1318, 1347 (2009). And that de­
+fense, the Eleventh Circuit holds, defeats a claim whenever a 
+law enforcement offcer's contested actions bear “some nexus 
+with furthering federal policy and can reasonably be charac­
+terized as complying with the full range of federal law.” Id., 
+at 1348; accord, Kordash v. United States, 51 F. 4th 1289, 
+1293 (CA11 2022). 
+Applying its unique approach to this case, the Eleventh 
+Circuit held that the law enforcement proviso spared the 
+plaintiffs' intentional-tort claims from both the intentional-
+tort and the discretionary-function exceptions. It dismissed 
+the plaintiffs' negligence claims under the discretionary-
+function exception because, in its view, Agent Guerra “en­
+joyed discretion in how he prepared for the warrant execu­
+tion.” App. to Pet. for Cert. 17a–18a. And on the merits 
+of the plaintiffs' (remaining) intentional-tort claims, the court 
+held that the government had a winning Supremacy Clause 
+defense. As a result, the Eleventh Circuit concluded, the 
+United States was entitled to summary judgment. Id., at 
+18a–19a. 
+We agreed to take this case to examine the distinctive 
+features of the Eleventh Circuit's approach—namely (1) 
+whether the law enforcement proviso overrides not just the 
+intentional-tort exception but also the discretionary-function 
+exception, and (2) whether the Supremacy Clause affords the 
+United States a defense in FTCA suits. Pet. for Cert. 16, 
+25. 604 U. S. 1103 (2025). 
+II 
+Begin with the law enforcement proviso. Does it counter­
+mand only § 2680(h)'s intentional-tort exception, as most cir­
+cuits have concluded and the government argues? Brief for 
+Respondents 25; Xi, 68 F. 4th, at 842 (Bibas, J., concurring) 
+
+404 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+(collecting cases). Or does the proviso also override the 
+other exceptions in § 2680, including the discretionary-
+function exception in subsection (a), as the Eleventh Circuit 
+has held and the plaintiffs contend? Nguyen, 556 F. 3d, at 
+1257; Brief for Petitioners 40. 
+A 
+To answer that question, we turn to the relevant statutory 
+text. Recall that § 1346(b) waives the federal government's 
+sovereign immunity, subject to a list of 13 exceptions housed 
+in § 2680. Those exceptions are lettered (a) through (n), 
+with one letter unused. Rather than setting the law en­
+forcement proviso apart as a discrete provision at the end of 
+that list, Congress folded it into subsection (h)'s intentional-
+tort exception. Here's a sense of how the proviso (under­
+lined below) appears in context. 
+“The provisions of this chapter and section 1346(b) of 
+this title shall not apply to— 
+“(a) Any claim based upon an act or omission of an 
+employee of the Government, exercising due care, in the 
+execution of a statute or regulation, whether or not such 
+statute or regulation be valid, or based upon the exer­
+cise or performance or the failure to exercise or perform 
+a discretionary function or duty on the part of a federal 
+agency or an employee of the Government, whether or 
+not the discretion involved be abused. 
+.
+.
+.
+.
+. 
+“(h) Any claim arising out of assault, battery, false im­
+prisonment, false arrest, malicious prosecution, abuse of 
+process, libel, slander, misrepresentation, deceit, or in­
+terference with contract rights: Provided, That, with re­
+gard to acts or omissions of investigative or law enforce­
+ment offcers of the United States Government, the 
+provisions of this chapter and section 1346(b) of this title 
+shall apply to any claim arising, on or after the date of 
+the enactment of this proviso, out of assault, battery, 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+405 
+Opinion of the Court 
+false imprisonment, false arrest, abuse of process, or ma­
+licious prosecution. For the purpose of this subsection, 
+`investigative or law enforcement offcer' means any of­
+fcer of the United States who is empowered by law to 
+execute searches, to seize evidence, or to make arrests 
+for violations of Federal law. 
+.
+.
+.
+.
+. 
+“(n) Any claim arising from the activities of a Federal 
+land bank, a Federal intermediate credit bank, or a bank 
+for cooperatives.” 
+The proviso's placement supplies an immediate clue about 
+the scope of its application. It appears in the same subsec­
+tion (and the same sentence) as the intentional-tort excep­
+tion. Given that arrangement, an ordinary reader would 
+naturally presume that the proviso modifes only subsection 
+(h). An everyday example helps illustrate the point. Sup­
+pose a wife leaves her husband a shopping list: “Please buy— 
+Apples. Carrots. Steak: If there is a sale. Bread. Milk.” 
+The wife, we think, would be understandably frustrated if 
+her husband returned home with only steak in hand because 
+he could fnd nothing else discounted. Refecting that intu­
+ition about ordinary meaning, our cases recognize that, ab­
+sent reason to think otherwise, statutory provisos generally 
+modify only the provisions in which they sit. See McDon­
+ald v. United States, 279 U. S. 12, 20–21 (1929); Alaska v. 
+United States, 545 U. S. 75, 106 (2005); A. Scalia & B. Garner, 
+Reading Law 154–155 (2012) (Scalia & Garner). 
+Nothing about § 2680(h)'s proviso gives us reason to think 
+it works differently. To the contrary, one textual clue after 
+another confrms that it follows the general rule. Start with 
+the statute's grammatical structure. Section 2680 contains 
+a lead-in clause (“The provisions of this chapter and section 
+1346(b) of this title shall not apply to—”) followed by a list 
+of exceptions. In conjunction with the lead-in clause, each 
+exception forms a stand-alone sentence ending with a period, 
+operating as a “distinct,” “structurally discrete” provision. 
+Page Proof Pending Publication
+
+406 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+Jama v. Immigration and Customs Enforcement, 543 U. S. 
+335, 344, and n. 4 (2005). And, given that, it is hard to see 
+how the law enforcement proviso might apply beyond sub­
+section (h), modifying exceptions housed in separate subsec­
+tions (and separate sentences) elsewhere in § 2680. 
+Notice, too, that subsection (h) and its proviso work to­
+gether to address the same category of claims: intentional 
+torts. Subsection (h)'s intentional-tort exception excludes 
+from the FTCA's sovereign-immunity waiver claims for torts 
+like “assault, battery, false imprisonment, [and] false arrest.” 
+The proviso then undoes that assertion of sovereign immu­
+nity for some of those same torts when committed by “inves­
+tigative or law enforcement offcers.” By contrast, the pro­
+viso does not so much as mention the issues addressed by 
+§ 2680's other exceptions, like claims for lost mail, combat 
+injuries, or the imposition of quarantines. §2680(b), (f), (j). 
+That the proviso is “confned” to the same “subject-matter” 
+as subsection (h)'s “principal clause” stands as more evidence 
+yet that it “refers only to the provision to which it is 
+attached.” United States v. Morrow, 266 U. S. 531, 535 
+(1925). 
+The proviso's second sentence is telling as well. It defnes 
+the phrase “investigative or law enforcement offcer.” In 
+doing so, the sentence tells us that the defnition applies only 
+to “this subsection” (i. e., subsection (h)), even though the 
+phrase “law enforcement offcer” also appears in subsection 
+(c)'s exception for claims arising from tax and customs collec­
+tion. § 2680(c), (h). If Congress had wished the proviso to 
+modify each of the exceptions in § 2680, it might have pro­
+vided a section-wide defnition, rather than a limited defni­
+tion just for subsection (h). 
+If more evidence were needed, comparing this statute with 
+others would supply it. Often, Congress drafts statutory 
+lists followed by a proviso in a separate paragraph at the 
+end. See, e. g., 42 U. S. C. §§1383(a)(2)(F)(ii)(II), 6928(f)(2). 
+Sometimes, that placement can suggest that a proviso relates 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+407 
+Opinion of the Court 
+to all the preceding subparts, not just the nearest one. 
+Scalia & Garner 156. But here Congress chose a different 
+course, folding the proviso into a single exception, rather 
+than appending it to the end of the full list of exceptions. 
+And that choice, too, suggests this proviso applies to subsec­
+tion (h) alone. See Ysleta del Sur Pueblo v. Texas, 596 U. S. 
+685, 704 (2022). 
+B 
+Seeking to defend the Eleventh Circuit's view that the 
+proviso applies broadly across all of § 2680's exceptions, the 
+plaintiffs offer a number of thoughtful arguments. But, to 
+our eyes, none can overcome the textual evidence we have 
+just laid out. 
+First, the plaintiffs ask us to focus on how the proviso mir­
+rors § 2680's lead-in clause. Brief for Petitioners 42. The 
+lead-in clause, they observe, preserves the government's sov­
+ereign immunity by instructing that § 1346(b)'s waiver “shall 
+not apply to” claims covered by the exceptions. § 2680 (em­
+phasis added). Meanwhile, the proviso countermands that 
+direction by instructing that § 1346(b)'s waiver “shall apply” 
+to certain claims. § 2680(h) (emphasis added). Because the 
+language of the proviso mirrors the language of the lead-in 
+clause, the plaintiffs submit, Congress must have meant for 
+the proviso to have the last word with respect to each of the 
+FTCA's exceptions. Id., at 42. That conclusion, however, 
+does not follow from its premise. Yes, the proviso and lead-
+in clause contain similar language. And, yes, the proviso 
+surely countermands the lead-in clause for purposes of sub­
+section (h). But none of that means the proviso speaks to 
+other exceptions that work together with the lead-in lan­
+guage to form discrete instructions that “may be understood 
+completely without reading any further.” Jama, 543 U. S., 
+at 344. 
+Second, the plaintiffs remind us that the proviso's second, 
+defnitional sentence applies to “this subsection,” but the 
+proviso's frst, substantive part contains no such limiting lan­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+408 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+guage. Brief for Petitioners 42–43 (quoting § 2680(h)). 
+And that difference, the plaintiffs say, suggests that the frst, 
+substantive part applies throughout § 2680. Id., at 42–43. 
+Again, however, we do not see it. Congress had no need to 
+include similar limiting language in the frst part of the pro­
+viso to confne its application to subsection (h). Congress 
+accomplished just that by placing the proviso's frst part in 
+the same sentence as the intentional-tort exception. Mean­
+while, in the proviso's second sentence, Congress arguably 
+needed to confne the defnition of “investigative or law en­
+forcement offcer” to “this subsection” to ensure that the 
+phrase “law enforcement offcer” carries a different meaning 
+when it appears in subsection (c). 
+Third, the plaintiffs resort to legislative history. They 
+point to a committee report discussing how Congress 
+enacted the proviso in response to two wrong-house raids 
+much like their own. Id., at 8–10, 44; see S. Rep. No. 93– 
+588, p. 3 (1973). And, the plaintiffs argue, unless the proviso 
+is given broad effect across § 2680, it will not fulfll Con­
+gress's purpose of ensuring that wrong-house-raid cases may 
+proceed. But this argument stumbles, too. Few pieces of 
+legislation pursue any single “purpos[e] at all costs.” Amer­
+ican Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 
+234 (2013) (internal quotation marks omitted). And Mem­
+bers of Congress may well have had more than one purpose 
+in mind when adding the proviso to the FTCA. Perhaps 
+some thought amending subsection (h) alone and leaving oth­
+ers untouched would strike a suitable balance between im­
+munity and liability. Perhaps others concluded there was no 
+need to apply the proviso more broadly because no other 
+exception would shield the government from liability for 
+wrong-house raids. Whatever the reason, no amount of 
+guesswork about the purposes behind legislation can displace 
+what the law's terms clearly direct. “[L]egislative history 
+is not the law.” Epic Systems Corp. v. Lewis, 584 U. S. 497, 
+523 (2018). 
+
+Cite as: 605 U. S. 395 (2025) 
+409 
+Opinion of the Court 
+III 
+That takes us to the Eleventh Circuit's second outlier posi­
+tion and the second question presented. May the United 
+States defeat an FTCA suit by invoking the Supremacy 
+Clause and showing that a federal offcer's acts had “some 
+nexus with furthering federal policy” and “compl[ied] with 
+the full range of federal law”? App. to Pet. for Cert. 17a 
+(internal quotation marks omitted). Because the govern­
+ment now concedes that it enjoys no such defense, the Court 
+appointed Christopher Mills as amicus to represent the 
+Eleventh Circuit's views. 604 U. S. 1115 (2025). He has 
+ably discharged his responsibilities. But in the end, we fnd 
+the government's concession commendable and correct: The 
+FTCA does not permit the Eleventh Circuit's Supremacy 
+Clause defense. 
+The Supremacy Clause supplies a rule of decision when 
+federal and state laws confict. It provides that the “Consti­
+tution, and the Laws of the United States which shall be 
+made in Pursuance thereof . . . shall be the supreme Law of 
+the Land . . . any Thing in the Constitution or Laws of any 
+state to the Contrary notwithstanding.” Art. VI, cl. 2. So, 
+for example, when a regulated party cannot comply with 
+both federal and state directives, the Supremacy Clause tells 
+us the state law must yield. See, e. g., Virginia Uranium, 
+Inc. v. Warren, 587 U. S. 761, 767 (2019) (opinion of Gor­
+such, J.). 
+The FTCA is the “supreme” federal law addressing the 
+United States' liability for torts committed by its agents. It 
+supplies the “exclusive remedy” for damages claims arising 
+out of federal employees' offcial conduct. See Hui v. Cas­
+taneda, 599 U. S. 799, 806 (2010). And, as we have seen, the 
+government will usually be liable if a “private individual 
+under like circumstances,” § 2674, “would be liable to the 
+claimant in accordance with the law of the place where the 
+act or omission occurred,” § 1346(b)(1). Accordingly, a plain­
+tiff may generally prevail in an FTCA suit by demonstrating 
+Page Proof Pending Publication
+
+410 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+that “the State in which the alleged misconduct occurred 
+would permit a cause of action for that misconduct to go 
+forward.” Carlson v. Green, 446 U. S. 14, 23 (1980). 
+Because the FTCA's liability rule incorporates state law, 
+in most cases there is no confict for the Supremacy Clause to 
+resolve. Take this case. Georgia law supplies the relevant 
+“law of the place” where the offcers' tortious conduct oc­
+curred. § 1346(b)(1). And Georgia law would permit a 
+homeowner to sue a private person for damages if that per­
+son intentionally or negligently raided his house and as­
+saulted him. See App. 10–13 (citing Hendricks v. Southern 
+Bell Tel. & Tel. Co., 193 Ga. App. 264, 264–265, 387 S. E. 2d 
+593, 594–595 (1989), for assault and battery and Lyttle v. 
+United States, 867 F. Supp. 2d 1256, 1301 (MD Ga. 2012), for 
+negligence). So when the FTCA, the relevant federal law 
+in this feld, instructs courts to apply those same state rules 
+to decide whether the United States is liable to the plaintiffs, 
+there is no discord between the two. 
+To be sure, it is possible (though rare) for federal and state 
+law to confict in an FTCA suit. So, for example, in Hess 
+v. United States, this Court held that federal maritime law 
+supplied the “law of the place” governing an FTCA suit in­
+volving an accident on the Columbia River. 361 U. S. 314, 
+318, and n. 7 (1960). Though the accident “occurred within 
+the State of Oregon,” it happened “on navigable waters . . . 
+within the reach of admiralty jurisdiction.” Id., at 318. As 
+a result, federal maritime law displaced state tort law, just 
+as it would in “an action between private parties.” Ibid, 
+n. 7. In much the same way, federal law will control other 
+FTCA suits where “a litigant [can] point specifcally to a con­
+stitutional text or a federal statute” that supplies controlling 
+liability rules, displacing contrary state law. Virginia Ura­
+nium, 587 U. S., at 767 (internal quotation marks omitted); 
+see, e. g., PLIVA, Inc. v. Mensing, 564 U. S. 604, 618 (2011). 
+In this case, however, the Eleventh Circuit did not identify 
+any federal statute or constitutional provision displacing 
+Georgia tort law. Instead, the court of appeals pointed to a 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+411 
+Opinion of the Court 
+line of cases stemming from this Court's decision in In re 
+Neagle, 135 U. S. 1, 75 (1890). App. to Pet. for Cert. 16a– 
+17a (citing Denson, 574 F. 3d, at 1336–1337). Those cases, 
+the Eleventh Circuit has observed, hold that federal offcers 
+may sometimes defeat state prosecutions against them by 
+demonstrating that their actions, though criminal under 
+state law, were “necessary and proper” in the discharge of 
+their federal responsibilities. Id., at 1346–1347 (discussing 
+In re Neagle). In the Eleventh Circuit's view, that same 
+logic works to foreclose FTCA suits like the plaintiffs'. 574 
+F. 3d, at 1346–1347; Kordash, 51 F. 4th, at 1293–1294. 
+To appreciate why that view is mistaken, a little history 
+helps. In re Neagle involved an affair, a homicide, and a 
+habeas petition. In 1883, Sarah Althea Hill claimed to be 
+the wife of U. S. Senator William Sharon and sought a share 
+of his fortune in acrimonious California divorce proceedings. 
+Sharon admitted an affair but insisted that Hill had forged 
+the pair's handwritten marriage contract. Hill hired David 
+Terry to represent her. A former Chief Justice of the Cali­
+fornia Supreme Court, Terry had resigned that post after 
+killing (another) U. S. Senator in a duel. As the litigation 
+wore on, lawyer and client married. 
+Eventually, the dispute between Hill and Sharon wound 
+up before U. S. Supreme Court Justice Stephen Field while 
+he was riding circuit. Terry and Justice Field were no 
+strangers, having served together on the California Supreme 
+Court. Even so, Justice Field issued a devastating ruling 
+against Hill. As he announced his decision, Hill leapt from 
+her seat, denounced the Justice as “bought,” and had to be 
+carried from the courtroom. 
+Joining the fracas, Terry 
+punched a marshal and brandished a bowie knife. Even 
+after the couple spent time in jail for contempt, they contin­
+ued to issue threats against Justice Field.1 
+1 For a full account of the saga, see In re Neagle, 135 U. S., at 42–55; 
+W. Lewis, The Supreme Court and a Six-Gun: The Extraordinary Story of 
+In re Neagle, 43 A. B. A. J. 415 (1957) (Lewis). 
+Page Proof Pending Publication
+
+412 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+Those events found their way into the U. S. Reports this 
+way. Aware of the threat Hill and Terry posed, the U. S. 
+Attorney General ordered Deputy Marshal David Neagle, a 
+former chief of police in Tombstone, Arizona, to accompany 
+Justice Field when he next rode circuit in California. Lewis 
+478; In re Neagle, 135 U. S., at 51–52. That decision proved 
+prescient, for Terry soon cornered the Justice on a train and 
+attacked him. Id., at 52–54. Intervening to protect the 
+Justice, Neagle shot and killed Terry. Ibid. After the 
+shooting, California authorities arrested Neagle and began 
+prosecuting him for murder. Neagle countered by fling a 
+petition for a writ of habeas corpus in federal court seeking 
+his release. Ibid. 
+When Neagle's petition reached this Court, it agreed the 
+writ should issue, reasoning that the Supremacy Clause 
+shielded him from state criminal charges. Without some 
+such protection, the Court concluded, California could frus­
+trate federal law by prosecuting a federal marshal “for an 
+act which he was authorized to do by the law of the United 
+States,” an act “which it was his duty to do,” and in circum­
+stances where he “did no more than what was necessary and 
+proper.” Id., at 75–76. 
+Memorable as In re Neagle may be, we do not see how it 
+informs the prosaic task of applying the FTCA. The Court's 
+decision may stand for the proposition that federal law will 
+sometimes preempt a state criminal law when it conficts 
+with a federal offcer's duties—and do so even in the absence 
+of express federal legislation overriding the state law in 
+question. But In re Neagle does not speak to a situation 
+where, as here, Congress has entered the feld and expressly 
+bound the federal government to accept liability under state 
+tort law on the same terms as a “private individual.” § 2674. 
+After all, no private individual could deploy In re Neagle to 
+his advantage. It has only ever worked to shield “[f]ederal 
+offcers who are discharging their duties.” Ohio v. Thomas, 
+173 U. S. 276, 283 (1899); see also In re Neagle, 135 U. S., at 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+413 
+Opinion of the Court 
+62 (“offcers and agents . . . acting . . . within the scope of 
+their authority”); Davis v. Burke, 179 U. S. 399, 402 (1900) 
+(“an offcer of the United States [who] has been arrested 
+under state process for acts done under the authority of the 
+Federal government”).2 
+To be sure, the government may raise other defenses 
+against tort liability, and some may be uniquely federal in 
+nature. After setting forth the general rule that the gov­
+ernment can be held liable under state tort law on the same 
+terms as a “private individual,” § 2674 adds that the govern­
+ment may “assert any defense based upon judicial or legisla­
+tive immunity which otherwise would have been available to 
+the employee of the United States whose act or omission 
+gave rise to the claim, as well as any other defenses to which 
+the United States is entitled.” But none of these defenses 
+include In re Neagle. That decision did not recognize a “ju­
+dicial or legislative immunity.” Nor has it been understood 
+as a “defens[e] to which the United States is entitled,” but 
+instead (and again) as a shield “[f]ederal offcers” may assert. 
+Thomas, 173 U. S., at 283. Had Congress wanted to refash­
+ion In re Neagle into a new defense the government itself 
+can assert under the FTCA, it might have said so. Yet it 
+did not. 
+IV 
+Where does all that leave the case before us? We can say 
+this much: The plaintiffs' intentional-tort claims survive 
+2 To date at least, this Court has also generally understood In re Neagle 
+as providing federal offcers a shield against only state criminal prosecu­
+tion, not (as here) state tort liability. See, e. g., Thomas, 173 U. S., at 283– 
+285 (favorably citing In re Waite, a case holding that the defense would 
+permit “a civil action for damages,” even where it barred “a criminal 
+prosecution,” because a damages action, unlike a prosecution, would not 
+bring the “federal and state governments into confict,” 81 F. 359, 363–364 
+(ND Iowa 1897)); Johnson v. Maryland, 254 U. S. 51, 56 (1920) (suggesting 
+that the defense would not foreclose “liability under the common law of a 
+State” for “negligence”). 
+Page Proof Pending Publication
+
+414 
+MARTIN v. UNITED STATES 
+Opinion of the Court 
+their encounter with subsection (h) thanks to the law en­
+forcement proviso, as the Eleventh Circuit recognized. But 
+it remains for that court on remand to consider whether sub­
+section (a)'s discretionary-function exception bars either the 
+plaintiffs' negligent- or intentional-tort claims. As we have 
+explained, the Eleventh Circuit must undertake that assess­
+ment without reference to its mistaken view that the law 
+enforcement proviso applies to subsection (a). Should some 
+or all of the plaintiffs' claims survive the discretionary-
+function exception, the Eleventh Circuit must then ask 
+whether, under Georgia state law, a “private individual 
+under like circumstances” would be liable for the acts and 
+omissions the plaintiffs allege, subject to the defenses dis­
+cussed in § 2674—not a Supremacy Clause defense nowhere 
+mentioned there. 
+Having resolved that much, the plaintiffs ask us to decide 
+more still. See Brief for Petitioners 19–40. In particular, 
+they call on us to determine whether and under what circum­
+stances the discretionary-function exception bars suits for 
+wrong-house raids and similar misconduct. Unless we take 
+up that further question, they worry, the Eleventh Circuit 
+on remand may take too broad a view of the exception and 
+dismiss their claims again. After all, the plaintiffs observe, 
+in the past that court has suggested that the discretionary-
+function exception bars any claim “unless a source of federal 
+law `specifcally prescribes' a course of conduct” and thus de­
+prives an offcial of all discretion. Id., at 36 (quoting Shivers 
+v. United States, 1 F. 4th 924, 931 (CA11 2021)). And that 
+approach, the plaintiffs insist, is both seriously mistaken and 
+at odds with how other circuits understand the exception. 
+Brief for Petitioners 36. Some courts, for instance, have 
+held that the discretionary-function exception does not pro­
+tect conduct “marked by individual carelessness or laziness,” 
+rather than “policy considerations.” Rich v. United States, 
+811 F. 3d 140, 147 (CA4 2015). Some courts do not apply the 
+exception when law enforcement offcers violate the plain­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 605 U. S. 395 (2025) 
+415 
+Sotomayor, J., concurring 
+tiffs' constitutional rights. Xi, 68 F. 4th, at 839 (“govern­
+ment offcials never have discretion to violate the Constitu­
+tion”). And some have indicated that the exception does not 
+protect “ministerial” tasks. See id., at 843 (Bibas, J., con­
+curring). The plaintiffs ask us to endorse decisions like 
+these, apply their reasoning to this case, and hold it survives 
+the discretionary-function exception. Brief for Petitioners 
+39–40. 
+We readily acknowledge that different lower courts have 
+taken different views of the discretionary-function exception. 
+We acknowledge, too, that important questions surround 
+whether and under what circumstances that exception may 
+ever foreclose a suit like this one. But those questions lie 
+well beyond the two we granted certiorari to address. And 
+before addressing them, we would beneft from the Eleventh 
+Circuit's careful reexamination of this case in the frst in­
+stance. It is work enough for the day to answer the ques­
+tions we took this case to resolve, clear away the two faulty 
+assumptions on which that court has relied in the past, and 
+redirect it to the proper inquiry. 
+The judgment of the Eleventh Circuit is vacated, and the 
+case is remanded for further proceedings consistent with 
+this opinion. 
+It is so ordered. 
+Justice Sotomayor, with whom Justice Jackson joins, 
+concurring. 
+I join in full the Court's opinion, which holds that the Elev­
+enth Circuit's distinctive approach to suits under the Federal 
+Tort Claims Act (FTCA) is wrong in two respects. See ante, 
+at 403–404, 413–414. The law enforcement proviso modifes 
+only the subsection in which it is located: Section 2680(h)'s 
+intentional-tort exception. Ante, at 403–408. The United 
+States, moreover, may not defeat an FTCA suit simply by 
+“showing that a federal offcer's acts had `some nexus with 
+furthering federal policy' and `compl[ied] with the full range 
+
+416 
+MARTIN v. UNITED STATES 
+Sotomayor, J., concurring 
+of federal law.' ” Ante, at 409 (alteration in original). With 
+those two principles clarifed, I also agree that the Eleventh 
+Circuit must now consider on remand whether the 
+FTCA's discretionary-function exception bars plaintiffs' 
+negligent- and intentional-tort claims. Ante, at 414–415. I 
+write separately to underscore that there is reason to think 
+the discretionary-function exception may not apply to these 
+claims. 
+I 
+The FTCA shields the United States from liability for 
+claims “based upon” a federal employee's “exercise or per­
+formance” (or failure to exercise or perform) “a discretionary 
+function or duty,” “whether or not the discretion involved be 
+abused.” 28 U. S. C. § 2680(a). This Court has set forth a 
+two-part test that governs the application of § 2680(a), known 
+as the discretionary-function exception. First, courts must 
+consider the nature of the offcial's conduct and decide 
+whether it “ `involv[es] an element of judgment or choice.' ” 
+United States v. Gaubert, 499 U. S. 315, 322 (1991) (quoting 
+Berkovitz v. United States, 486 U. S. 531, 536 (1988)). “The 
+requirement of judgment or choice,” this Court has ex­
+plained, “is not satisfed if a `federal statute, regulation, or 
+policy specifcally prescribes a course of action for an em­
+ployee to follow.' ” 499 U. S., at 322. In such circum­
+stances, “ `the employee has no rightful option but to adhere 
+to the directive.' ” Ibid. 
+Even where a federal employee retains an element of 
+choice, however, the exception does not apply refexively. 
+After all, it is rare for statutes or regulations to prescribe 
+an offcial's required course of conduct down to the very last 
+detail, so some degree of choice will almost invariably re­
+main. Thus, this Court has required lower courts to deter­
+mine, at the second step, whether “th[e] judgment is of the 
+kind that the discretionary function exception was designed 
+to shield.” Berkovitz, 486 U. S., at 536. Because “[t]he 
+basis for the discretionary function exception was Congress' 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+417 
+Sotomayor, J., concurring 
+desire to `prevent judicial “second-guessing” of legislative 
+and administrative decisions grounded in social, economic, 
+and political policy through the medium of an action in tort,' ” 
+this Court has clarifed that the exception protects only those 
+governmental actions and decisions that are themselves 
+“based on considerations of public policy.” Id., at 536–537 
+(quoting United States v. S. A. Empresa De Viacao Aerea 
+Rio Grandense, 467 U. S. 797, 814 (1984)); see Gaubert, 499 
+U. S., at 323. 
+To that end, this Court has said, it is “obviou[s]” that some 
+discretionary acts performed by Government agents “are 
+within the scope of [their] employment but not within the 
+discretionary function exception.” Id., at 325, n. 7. If a 
+federal banking regulator “drove an automobile on a mission 
+connected with his offcial duties and negligently collided 
+with another car,” for example, the Court has made clear 
+that “the exception would not apply.” Ibid. That is be­
+cause, while “driving requires the constant exercise of dis­
+cretion, the offcial's decisions in exercising that discretion 
+can hardly be said to be grounded in regulatory policy.” 
+Ibid. 
+It has been 34 years since this Court last weighed in on 
+the discretionary-function exception, see Gaubert, 499 U. S. 
+315, and despite substantial percolation in the courts of ap­
+peals, the “exact boundaries of the exception remain un­
+clear,” 14 C. Wright, A. Miller, & H. Hershkoff, Federal Prac­
+tice and Procedure § 3658.1 (4th ed. Supp. 2025). The Court 
+today resolves one of the Circuit splits regarding the excep­
+tion's application: whether claims that fall within the FTCA's 
+law enforcement proviso must necessarily fall outside of the 
+discretionary-function exception. Yet, as the Court recog­
+nizes, ante, at 414–415, several additional points of disagree­
+ment remain, including whether allegedly “unconstitutional 
+conduct necessarily falls outside the exception” because off­
+cials lack discretion to violate the Constitution, and “whether 
+the exception applies when the challenged act was careless 
+Page Proof Pending Publication
+
+418 
+MARTIN v. UNITED STATES 
+Sotomayor, J., concurring 
+rather than a considered exercise of discretion.” Xi v. 
+Haugen, 68 F. 4th 824, 843 (CA3 2023) (Bibas, J., concurring) 
+(describing these Circuit splits). Given the enduring ques­
+tions about how to apply the discretionary-function excep­
+tion, and the divergent approaches taken by the Circuits, it 
+is long past time for this Court to weigh in on the excep­
+tion's scope. 
+Even without further intervention by this Court, however, 
+there is reason to question the Eleventh Circuit's suggestion 
+in the decision below that the discretionary-function excep­
+tion might apply “ `unless a source of federal law “specifcally 
+prescribes” a [federal employee's] course of conduct.' ” 2024 
+WL 1716235, *6 (2024) (quoting Shivers v. United States, 1 
+F. 4th 924, 931 (CA11 2021); emphasis in original). That ap­
+proach, which even the Government does not defend before 
+this Court, would run headlong into this Court's precedents. 
+Gaubert, after all, applies the discretionary-function excep­
+tion only where an offcial's actions both involve an element 
+of judgment and rely on public policy considerations. See 
+499 U. S., at 322–323; see also Berkovitz, 486 U. S., at 536– 
+537. Whether federal law prescribes a particular course of 
+action resolves only the frst of Gaubert's two questions. 
+The second question (whether an offcer's decisions were 
+“ `based on considerations of public policy,' ” 499 U. S., at 323) 
+remains live. Were it otherwise, a federal offcial's negli­
+gent driving decisions would fall beyond the reach of the 
+discretionary-function exception only if federal law or policy 
+specifcally prescribed an offcer's permissible maneuvers on 
+the road. Cf. id., at 325, n. 7. 
+II 
+Agent Guerra's preparation to execute search and arrest 
+warrants at 3741 Landau Lane, and his subsequent decision 
+to raid Martin and Cliatt's home at 3756 Denville Trace, bear 
+some resemblance to Gaubert's negligent driving hypotheti­
+cal. Like driving, executing a warrant always involves 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+419 
+Sotomayor, J., concurring 
+some measure of discretion. Yet it is hard to see how Guer­
+ra's conduct in this case, including his allegedly negligent 
+choice to use his personal GPS and his failure to check the 
+street sign or house number on the mailbox before breaking 
+down Martin's door and terrorizing the home's occupants, in­
+volved the kind of policy judgments that the discretionary-
+function exception was designed to protect. 
+The FTCA's history, too, confrms Congress's intention to 
+subject the United States to liability for intentional torts 
+committed by law enforcement offcers like Agent Guerra. 
+The relevant context is as follows: For several decades after 
+the FTCA's enactment, Congress retained the United States' 
+sovereign immunity for myriad intentional torts committed 
+by federal employees, including assault, battery, and false 
+arrest. See 28 U. S. C. § 2680(h). That changed, however, 
+in response to an episode that will sound familiar to readers 
+of the majority opinion. See ante, at 399–400. 
+In April 1973, Herbert and Evelyn Giglotto awoke in their 
+Collinsville, Illinois, townhouse “to the sound of someone 
+smashing down their door and bursting into their home.” J. 
+Boger, M. Gitenstein, & P. Verkuil, The Federal Tort Claims 
+Act Intentional Torts Amendment: An Interpretative Analy­
+sis, 54 N. C. L. Rev. 497, 500 (1976). After 15 state and 
+federal offcers ransacked the Giglottos' home, tied them up 
+at gunpoint, and threatened to shoot Mr. Giglotto if he 
+moved, the offcers realized they “ `ha[d] the wrong people.' ” 
+Ibid. The offcers eventually moved on to the home of Don­
+ald Askew, where they terrorized yet another innocent cou­
+ple before confessing they had acted on a “ `bad tip.' ” Id., 
+at 501. 
+The Collinsville raids garnered national attention, includ­
+ing from the United States Senate. See S. Rep. No. 93–588, 
+pp. 2–3 (1973); see also Brief for Members of Congress as 
+Amici Curiae 8–12. Noting that “[t]here [was] no effective 
+legal remedy against the Federal Government for the actual 
+physical damage, much less the pain, suffering and humilia­
+Page Proof Pending Publication
+
+420 
+MARTIN v. UNITED STATES 
+Sotomayor, J., concurring 
+tion to which the Collinsville families ha[d] been subjected,” 
+the Senate Committee on Government Operations proposed 
+an amendment to the FTCA. See S. Rep. No. 93–588, at 2. 
+The solution was to add a proviso to the end of the 
+intentional-tort exception that “deprive[s] the Federal Gov­
+ernment of the defense of sovereign immunity” for FTCA 
+suits arising out of the state-law torts of “assault, battery, 
+false imprisonment, false arrest, malicious prosecution, or 
+abuse of process” by federal law enforcement offcers. Id., 
+at 3; see § 2680(h). The Committee designed the proviso to 
+ensure “innocent individuals who are subjected to raids of 
+the type conducted in Collinsville, Illinois, will have a cause 
+of action against the individual Federal agents [via suits 
+under Bivens v. Six Unknown Fed. Narcotics Agents, 403 
+U. S. 388 (1971)] and the Federal Government [through the 
+FTCA].” Id., at 3 (emphasis added). 
+Of course, the majority correctly holds that the proviso 
+does not altogether trump the discretionary-function excep­
+tion: Even if an intentional-tort claim “survive[s its] en­
+counter with subsection (h) thanks to the law enforcement 
+proviso,” courts must nevertheless consider whether “sub­
+section (a)'s discretionary-function exception bars . . . the 
+plaintiffs' negligent- or intentional-tort claims.” Ante, at 
+413–414. Courts, however, should not ignore the existence 
+of the law enforcement proviso, or the factual context that 
+inspired its passage, when construing the discretionary-func­
+tion exception. Whatever else is true of that exception, any 
+interpretation should allow for liability in the very cases 
+Congress amended the FTCA to remedy. See Van Buren v. 
+United States, 593 U. S. 374, 393 (2021) (“ `When Congress 
+amends legislation, courts must presume it intends the 
+change to have real and substantial effect' ”); see also Hun­
+gary v. Simon, 604 U. S. 115, 132 (2025) (relying on a statute's 
+“ `historical backdrop' ” to “ `permit adjudication of claims' ” 
+that an earlier decision of this Court had avoided). 
+Page Proof Pending Publication
+
+Cite as: 605 U. S. 395 (2025) 
+421 
+Sotomayor, J., concurring 
+*
+*
+* 
+On remand, the court should approach the discretionary-
+function exception with an eye to both steps of the Gaubert 
+analysis and to the existence and context of the intentional-
+tort exception's law enforcement proviso. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+p. 401, line 11: “against” is changed to “by” 
+p. 419, line 20: “house” is changed to “home” 
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@@ -0,0 +1,23 @@
+The Redress of Law – A rejoinder – CORRIGENDUM
+
+CORRIGENDUM
+The Redress of Law – A rejoinder – CORRIGENDUM
+Emilios Christodoulidis
+https://doi.org/10.1017/elo.2023.21, published by Cambridge University Press on 29th June 2023.
+The Author would like to clarify a statement made in the above article. On page 220, footnote 4 is
+corrected to:
+As the reader would have realised, I am referring to the interventions by Steininger, Nicola and
+Golia published in this issue, namely S Steininger, ‘Where is the l(ove)? Excavating law and labour
+in The Redress of Law’, FG Nicola, ‘Failures of comparability in global governance: Exploring the
+practical dimension of the redress of law’ and A Golia, ‘ ‘A Few Practical Things’: The Redress of
+Law and the Irritation of (Critical) Constitutional Theory.’
+The article has been updated to reflect this.
+Reference
+Christodoulidis, E. (2023). The Redress of Law – A rejoinder. European Law Open, 2(1), 219–232. doi: 10.1017/elo.2023.21
+© The Author(s), 2023. Published by Cambridge University Press. This is an Open Access article, distributed under the terms of the Creative
+Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction,
+provided the original article is properly cited.
+Cite this article: Christodoulidis E (2023). The Redress of Law – A rejoinder – CORRIGENDUM. European Law Open 2, 882.
+https://doi.org/10.1017/elo.2023.29
+European Law Open (2023), 2, 882
+doi:10.1017/elo.2023.29
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+Correction: Legal advice and care-effective use of care and case management: limits, risks and need for change
+
+Ruppel et al. BMC Health Services Research           (2023) 23:91  
+https://doi.org/10.1186/s12913-023-09097-0
+CORRECTION
+© The Author(s) 2023. Open Access This article is licensed under a Creative Commons Attribution 4.0 International License, which 
+permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the 
+original author(s) and the source, provide a link to the Creative Commons licence, and indicate if changes were made. The images or 
+other third party material in this article are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line 
+to the material. If material is not included in the article’s Creative Commons licence and your intended use is not permitted by statutory 
+regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder. To view a copy of this 
+licence, visit http://​creat​iveco​mmons.​org/​licen​ses/​by/4.​0/. The Creative Commons Public Domain Dedication waiver (http://​creat​iveco​
+mmons.​org/​publi​cdoma​in/​zero/1.​0/) applies to the data made available in this article, unless otherwise stated in a credit line to the data.
+Open Access
+BMC Health Services Research
+Correction: Legal advice and care‑effective 
+use of care and case management: limits, risks 
+and need for change
+Thomas Ruppel1*, Max Georg Hügel2, Simone Gloystein1 and Neeltje van den Berg1 
+Correction: BMC Health Services Research 22, 1439 
+(2022)
+https://doi.org/10.1186/s12913-022-08844-z
+Following publication of the original article [1], an 
+error was identified in the article title: the funding note 
+was erroneously included as part of the title. The funding 
+note (funded by the innovation Fund of the Federal Joint 
+Committee (G-BA) according to §§ 92a and 92b of the 
+fifth book of the German social code (SGB V). Funding 
+code 01NVF17029 (RubiN) regional uninterrupted in 
+the network) was removed from the article title and the 
+article title has been updated above and in the original 
+article [1].
+Reference
+	1.	
+Ruppel T, et al. Legal advice and care-effective use of care and case 
+management: limits, risks and need for change. BMC Health Services 
+Research. 2022;22:1439. https://​doi.​org/​10.​1186/​s12913-​022-​08844-z.
+The original article can be found online at https://​doi.​org/​10.​1186/​s12913-​
+022-​08844-z.
+*Correspondence:
+Thomas Ruppel
+kanzlei@gesundheitsrecht.de
+1 University of Greifswald, Greifswald, Germany
+2 Bucerius Law School, Hamburg, Germany
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+From Disparity to Harmonisation of Construction Industry Payment Legislation in Australia: A Proposal for a Dual Process of Adjudication based upon Size of Progress Payment Claim
+
+Since the introduction of the Building and Construction Industry Security of Payment Act into New South Wales in 1999, construction industry payment legislation has progressively been enacted on a jurisdiction-by-jurisdiction basis throughout Australia. Of the eight Australian Acts, two distinct legislative models can be discerned – what have been termed the ‘East Coast’ and ‘West Coast’ models. This article compares the two models with respect to their payment systems and adjudication schemes, procedural justice afforded, incursion upon freedom of contract, uptake rates and efficiency. From this comparison, the strengths and weaknesses of the two models are identified. Finally, a dual process of adjudication based on progress payment claim size is proposed for a harmonised model, developed from previous proposals put forward by other authors, which aims to combine the strengths of the two existing models.
+
+From Disparity to Harmonisation of Construction 
+Industry Payment Legislation in Australia: a Proposal 
+for a Dual Process of Adjudication based upon Size 
+of Progress Payment Claim 
+Jeremy Coggins (School of the Natural & Built Environments, University of South 
+Australia; PhD candidate, University of Adelaide, Australia) 
+ 
+ 
+ 
+Abstract 
+Since the introduction of the Building and Construction Industry Security of Payment Act into 
+New South Wales in 1999, construction industry payment legislation has progressively been 
+enacted on a jurisdiction-by-jurisdiction basis throughout Australia. Of the eight Australian 
+Acts, two distinct legislative models can be discerned – what have been termed the „East 
+Coast‟ and „West Coast‟ models. This article compares the two models with respect to their 
+payment systems and adjudication schemes, procedural justice afforded, incursion upon 
+freedom of contract, uptake rates and efficiency. From this comparison, the strengths and 
+weaknesses of the two models are identified. Finally, a dual process of adjudication based 
+on progress payment claim size is proposed for a harmonised model, developed from 
+previous proposals put forward by other authors, which aims to combine the strengths of the 
+two existing models. 
+ 
+Introduction 
+Over the past 13 years, construction industry payment legislation („the legislation‟) has come 
+into force in several Commonwealth jurisdictions. A common objective of all of this legislation 
+has been the eradication of unfair contractual provisions and practices with regards to 
+payment in order to get cash flowing in as fair a manner as possible down the hierarchical 
+contractual chains that exist on most commercial construction projects. A central feature of 
+all this legislation is the provision for a rapid statutory adjudication scheme, designed to 
+facilitate quick and inexpensive resolution of contractual payment disputes in the 
+construction industry. There is general consensus that the legislation has had a significant 
+and positive effect on the construction industry in those jurisdictions where it has been 
+enacted.  
+ 
+In Australia, the first jurisdiction to pass such legislation was New South Wales (NSW). The 
+NSW Act formed the model upon which most other Australian jurisdictions, to varying 
+degrees, progressively based their legislation culminating in the Tasmanian Act which 
+received Royal Assent on 17 December 2009. A list of the relevant Acts is presented in 
+Table 1. The consequence of this piecemeal, jurisdiction-by-jurisdiction, approach to 
+enacting the legislation throughout Australia has been inconsistency, to varying degrees, 
+between the various Acts. Such inconsistency is particularly marked, with respect to the 
+underlying conceptual frameworks and detail of the drafting, between the Western Australia 
+(WA) and Northern Territory (NT) Acts on the one hand which more closely resemble the 
+construction industry payment legislation in the United Kingdom (UK) and New Zealand 
+(NZ), and the other Australian Acts on the other which are more closely modelled on the 
+NSW Act. 
+ 
+Accordingly, the WA and NT Acts have been collectively labelled (Stenning & Associates 
+2006) as the „West Coast‟ model legislation as opposed to the „East Coast‟ model tag given 
+to the other Australian Acts. This paper generally refers to the NSW legislation as 
+representative of the East Coast model, and the WA legislation as representative of the 
+West Coast model. 
+ 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+35 
+Jurisdiction 
+Legislation 
+Date of 
+Commencement 
+NSW 
+Building and Construction Industry Security of Payment Act 
+1999 
+26 March 2000 
+Victoria 
+Building and Construction Industry Security of Payment Act 
+2002 
+31 January 2003 
+Queensland 
+Building and Construction Industry Payments Act 2004 
+1 October 2004 
+Western 
+Australia 
+Construction Contracts Act 2004 
+1 January 2005 
+Northern 
+Territory 
+Construction Contracts (Security of Payments) Act 2004 
+1 July 2005 
+Tasmania 
+Building and Construction Industry Security of Payment Act 
+2009 
+17 December 2009 
+ACT 
+Building and Construction Industry Security of Payment Act 
+2009 
+1 July 2010 
+South 
+Australia 
+Building and Construction Industry Security of Payment Act 
+2009 
+Yet to be 
+proclaimed 
+Table 1 Construction industry payment legislation in Australia 
+ 
+The key differences between the East and West Coast models have been described by 
+Coggins, Elliott and Bell (2010: 15) as follows: 
+ 
+ 
+The East Coast model Acts provide a detailed statutory payments regime, overriding 
+any inconsistent contractual provisions, which parties undertaking “construction work” 
+or “related goods and services” may choose to engage by submitting a payment 
+claim under the Act at regular intervals and have it responded to within a certain 
+timeframe. Conversely, the West Coast model Acts largely preserve (rather than 
+override) the parties‟ contractual interim payment regimes.  
+ 
+ 
+The East Coast model Acts only allow for payment claims to be made up the 
+“contractual stream” (typically by a subcontractor against its head contractor, or head 
+contractor against its principal). Conversely, the West Coast model allows for 
+payment claims both up and down the “contractual stream”. 
+ 
+ 
+Whilst both models allow for a statutory adjudication scheme to determine, in the 
+interim, disputed payment claims, they differ with respect to adjudicator appointment, 
+submissions which may be considered by an adjudicator, and the approach which an 
+adjudicator is to adopt in order to arrive at his or her determination. In all of these 
+respects the East Coast Acts are more restrictive, disallowing mutual agreement of 
+an adjudicator, consideration of reasons for withholding payment which have not 
+been duly submitted in accordance with the statutory payment scheme, and 
+discouraging an evaluative approach to adjudicators‟ determinations.  
+ 
+In recent times there has been a strong consensus, and call, from commentators (Bailey 
+2009; Zhang 2009; Bell & Vella 2010) – echoing the recommendation of the Cole Royal 
+Commission nearly a decade ago (Cole 2003) –  that the legislation should be harmonised 
+into a uniform national approach in order to benefit the construction industry. Accordingly, 
+some commentators have put forward proposals and ideas as to the most appropriate 
+conceptual framework for a unified approach. 
+ 
+After an initial consideration of the objectives of the East and West Coast model legislation 
+and a review of each model‟s payment systems and adjudication schemes, this paper 
+considers the operation of each model with respect to four key issues – procedural justice, 
+freedom of contract, uptake rates and efficiency. Next, an overview of two existing proposals 
+for harmonisation – one by Davenport (2007) and the other by Bailey (2009) – is given. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+36 
+Finally, building upon the Davenport and Bailey proposals, a third proposal for harmonisation 
+is proffered by the author.  
+   
+The Objective of the Legislation 
+Despite their differences, the common objective of this raft of legislation, apparent from the 
+Second Reading Speeches for each of the Acts,1 is to facilitate the flow of cash in a swift 
+manner down the hierarchical contractual chain on construction projects.  
+ 
+The focus of the Second Reading Speech for the NSW Bill given by the Minister, Mr Morris 
+Iemma, was very much on protecting the small subcontractor. Mr Iemma (1999: 1594) 
+states:  
+ 
+It is all too frequently the case that small subcontractors - such as bricklayers, 
+carpenters, electricians and plumbers - are not paid for their work. Many of them 
+cannot survive financially when that occurs, with severe consequences for themselves 
+and their families.  
+ 
+Mr Iemma (1999: 1595) emphasises the vulnerability of the small subcontractor to payment 
+problems as follows: 
+ 
+Hundreds of subcontractors in New South Wales struggle to survive when they do not 
+receive money owed to them for work undertaken. They do not have the cash flow 
+allowing them to keep on working while waiting for payment. This causes hardship not 
+only to them but also to their families.  
+ 
+However, despite this focus on small subcontractors, the apparent intent of the NSW 
+legislation is far wider ranging affording protection to all parties who carry out work (or supply 
+goods and services) in the construction industry. As Mr Iemma (1999: 1595) states: 
+ 
+The bill covers civil engineering as well as architectural work, mechanical and 
+electrical work in buildings, maintenance, and landscaping and decorating. It affects all 
+parties who contract for that work, including owners, contractors, subcontractors and 
+consultants, and applies to both commercial and residential work. 
+ 
+Accordingly, the object of the East Coast model legislation is to ensure contractors or 
+suppliers are entitled to, and are able to recover, progress payment claims for construction 
+work they have undertaken or related goods and services they have supplied (s 3(1) of the 
+NSW Act). 
+ 
+The other Australian Acts have similar wide ranging intent. As noted by Bell and Vella (2010: 
+568): 
+ 
+Such a [wide-ranging] reform intent is indicated not only…in the Minister‟s [Mr 
+Iemma‟s] comments, but also in the Second Reading Speeches for the other 
+Australian Acts, and in the objects provisions for the Acts, each of which is widely cast 
+as to the participants within the industry at whom the Act is directed. 
+ 
+In her Second Reading Speech for the WA Construction Contracts Bill, the Minister, Ms 
+MacTiernan (2004: 274), also refers to the vulnerability of subcontractors as follows: 
+ 
+The building and construction industry is made up of many consultants, contractors, 
+subcontractors and suppliers - all of whom work together to deliver buildings and 
+                                               
+1  ACT (Hargreaves J, 15 October 2009); NSW (Iemma M, 29 June 1999); NT (Toyne P, 14 October 2004); 
+Queensland (R E Schwarten, 18 March 2004); SA (Kenyon T, 5 March 2009); Tasmania (Singh L M, 4 November 
+2009); Victoria (Thomson M R, 21 March 2002); WA (MacTiernan A J, 3 March 2004. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+37 
+infrastructure for the Western Australian economy. This interdependence makes 
+security of payment a vital foundation for the industry. Failure to pay at any link in the 
+contracting chain can be disastrous to those subcontractors and suppliers who are 
+waiting to be paid in their turn and, until now, there has been little recourse available to 
+those who are affected.  
+ 
+Ms MacTiernan (2004: 275) also implies, however, that the WA legislation is intended for a 
+wide range of contractual claims, ranging from small to complex, when she states that the 
+legislation‟s 
+ 
+primary aim is to keep the money flowing in the contracting chain by enforcing timely 
+payment and sidelining protracted or complex disputes. The process is kept simple, 
+and therefore cheap and accessible, even for small claims. 
+ 
+This is consistent with the West Coast model legislation allowing for either contracting party 
+to apply for adjudication for damages claims, whose recovery is within the scope of the 
+contract provisions, as well as progress payment claims.  
+ 
+Payment Systems and Adjudication Schemes under the Legislation 
+The East Coast model operates a „dual payment‟ system for progress payment claims, 
+creating a statutory payment system which runs alongside any contractual regime 
+(Beckhaus v Brewarrina Council [2002] NSWSC 960 per Macready AJ at [60]). This dual 
+payment system was described as a “dual railroad track system” by Macready AJ in 
+Transgrid v Siemens & Anor [2004] NSWSC 87 at [56]. 
+ 
+In order to engage the statutory payment system, a claimant must endorse its payment claim 
+as being made under the Act (s 13(2)(c) of the NSW Act), and serve it upon the respondent 
+(s 13(1) of the NSW Act). The West Coast model does not operate a dual payment system, 
+but rather payment claims referred to in the Act are those made under the contractual 
+regime.  
+ 
+The East Coast model provides for recovery of progress payments for construction work 
+undertaken or goods and services supplied only and, therefore, by definition only allows 
+contractors or suppliers to recover payment from their principals (ie, „upstream‟ claims). The 
+scope of the West Coast model is wider, providing the right for either party to make an 
+adjudication application in relation to any payment disputes (s 25 of the WA Act) falling 
+within the scope of the building contract, including debts and damages claims. 
+ 
+Under the East Coast model‟s statutory payment regime, a respondent has up to 10 
+business days2 after the payment claim is served to serve a payment schedule indicating the 
+amount of the payment it proposes to make. If the scheduled amount is less than the 
+claimed amount, the schedule must indicate why the scheduled amount is less with reasons 
+for withholding payment (s 14(3) of the NSW Act). If the respondent either schedules an 
+amount less than the payment claim or fails to pay the whole or part of the scheduled 
+amount by the due date, the claimant may make an adjudication application under the Act (s 
+17(1) of the NSW Act).  
+ 
+In the case where a lesser amount is scheduled and paid, the claimant must serve an 
+adjudication application on an Authorised Nominating Authority (ANA) of their choice (s 
+17(3)(b) of the NSW Act), with a copy served on the respondent (s 17(5) of the NSW Act), 
+within 10 business days  after receiving the payment schedule (s 17(3)(c) of the NSW Act ).3 
+                                               
+2 Except in the SA Act which allows 15 business days – see s 14(4)(b)(ii) of the SA Act. 
+3Except in the SA Act which allows 15 business days – see s 17(3)(c) of the SA Act. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+38 
+The respondent then has either a period of 5 business days4 after receiving a copy of the 
+application or 2 business days5 after receiving notice of an adjudicator‟s acceptance of the 
+application, whichever is the later, to lodge an adjudication response with the adjudicator (s 
+20(1) of the NSW Act).  
+  
+If the respondent does not duly provide a payment schedule, it becomes liable to pay the 
+claimed amount to the claimant on the due date for the progress payment (s 14(4)(b) of the 
+NSW Act). Where no payment schedule is provided, the claimant has two paths available 
+under the Act by which to recover the payment claim.  
+ 
+The first path is for the claimant to seek summary judgment in court for the debt due (s 
+15(2)(a)(i) of the NSW Act), in which case the respondent is not entitled to bring any cross-
+claim against the defendant in the summary judgment proceedings, or raise any defence in 
+relation to matters arising under the construction contract (s 15(4)(b) of the NSW Act). The 
+second path is for the respondent to apply for the payment claim to be determined in 
+adjudication,6 in which case the respondent will be disallowed from lodging an adjudication 
+response (s 20(2A) of the NSW Act). This means that a respondent will not then have an 
+opportunity to be heard by an adjudicator who is essentially limited to a consideration of the 
+submissions duly made by the parties (ie, payment claim, payment schedule and all 
+submissions that have been duly made in their support) when determining the adjudication 
+(s 22(2) of the NSW Act).  
+  
+Even in circumstances where the respondent has duly served a payment schedule, it may 
+only include in its adjudication response reasons for withholding payment which have 
+previously been included in the payment schedule (s 20(2B) of the NSW Act). Thus, a 
+respondent may be prevented from being able to present its full case to the adjudicator 
+unless it has previously served a comprehensive payment schedule which covers all the 
+issues it may wish to rely on subsequently. 
+ 
+Unlike the East Coast model, the West Coast model provides no detailed statutory payment 
+system but rather gives primacy to the parties‟ agreed contractual payment regime. Thus, 
+where no progress payment is certified in response to a payment claim under the contract 
+within the time stipulated in the contract, the claimant has no statutory right to summary 
+judgment (as per the East Coast model) but must apply to the courts for summary 
+judgment.7 If no such payment regime is provided for in the construction contract, then the 
+payment provisions set out in Schedule 1 of the West Coast legislation are implied into the 
+contract. 
+ 
+Unlike the East Coast model, the West Coast legislation does not make the serving of a 
+response to the payment claim8 a condition precedent to the right of a party who is served 
+                                               
+4 Except in the Tasmanian Act (7 business days) and ACT Act (10 business days). 
+5 Except in the Tasmanian Act (5 business days) and ACT Act (5 business days). 
+6 This second path may be preferable to some claimants in terms of speed of recovery as the claimant may 
+request an adjudication certificate from the relevant ANA stating the adjudicated amount (see s 24 of the NSW 
+Act) and file the adjudication certificate as a judgment for a debt in any court of competent jurisdiction (see s 25 
+of the NSW Act).   
+7 If the courts permit summary judgment this does not guarantee swift and inexpensive recovery of a certified 
+payment. There is still the possibility that a defendant may be able to defeat an application for summary judgment 
+by demonstrating to the court that it can mount a reasonable defence by way of a cross claim based upon the 
+facts and law, in which case the only option left to the contractor will be to pursue its claim in a relatively lengthy 
+and costly court trial or arbitration hearing. 
+8 Ie, the equivalent of a “payment schedule” in East Coast terminology. Although under the West Coast legislation 
+a response to a payment claim is a contractual requirement rather than a statutory requirement.  
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+39 
+with an adjudication application9 to lodge an adjudication response. Additionally, there are no 
+limitations as to the inclusion of reasons for withholding payment in a response to an 
+adjudication application. Thus, providing that a party lodges their response to an adjudication 
+application within the time allowed by the legislation (within 14 days (WA Act, s 27(1)) or 10 
+working days (NT Act, s 29(1)) after the date on which a party to a construction contract is 
+served with an application for adjudication), it will not be deprived of the opportunity to 
+present its full case to the appointed adjudicator. 
+ 
+Furthermore, an adjudicator under the West Coast legislation is not restricted to a 
+consideration of documents submitted by the parties when making his or her determination 
+as in the East Coast model, which in practice means that an adjudicator under the East 
+Coast legislation often makes a determination on documents only. Rather, the legislation 
+encourages a West Coast adjudicator to be more evaluative in their approach to 
+determination by providing that an adjudicator “is not bound by the rules of evidence and 
+may inform himself or herself in any way he or she thinks fit” (s 32(1)(b) of the WA Act) or 
+“appropriate” (s34(1)(b) of the NT Act). This has the effect of extending the adjudicator‟s 
+investigative powers beyond the consideration of the parties‟ submissions, thus assisting the 
+adjudicator in ascertaining the facts and the law.  
+ 
+Procedural Justice 
+Procedural justice refers to the justice of the processes or methods used to arrive at an 
+outcome or determination. A review of literature in the field of dispute resolution and social 
+psychology shows a strong consensus that procedural justice, or merely the perception of it, 
+has positive consequences (Thibaut & Walker 1975; Ury, Brett & Goldberg 1988; Allred 
+2005) including: a mutual satisfaction of the disputing parties with the outcome;  a willingness 
+of the parties to settle; a willingness of the parties to abide by the agreement or 
+determination;  and, feelings of trust, cooperation, and commitment toward the other side 
+(see Figure 1). Indeed, it has been shown that procedural justice becomes especially 
+important to disputants when outcomes are unfavourable to them as they may draw some 
+satisfaction from the resolution‟s fairness (Thibaut & Walker 1975; LaTour 1978; Greenberg 
+1987). 
+ 
+A fundamental characteristic of procedural justice in dispute resolution is that both parties 
+have an opportunity to voice their side of the argument, and that both parties feel as though 
+their perspective has at least been considered. Numerous studies have made it clear that 
+the voice effect enhances procedural fairness (Lind, Kanfer & Earley 1990; Folger 1977; 
+Kanfer, Sawyer, Earley, & Lind 1987; LaTour 1978; Lind, Kurtz, Musante, Walker, & Thibaut 
+1980; Lind, Lissak, & Conlon 1983; Tyler 1987; Tyler, Rasinski, & Spodick 1985).  
+ 
+Accordingly it is widely considered to be a fundamental principle in dispute resolution 
+proceedings that each party shall be given a full opportunity to present its case (Article 18 of 
+the United Nations Commission on International Trade Law (UNCITRAL) Model Law on 
+International Commercial Arbitration; Article 6 of the European Convention on Human 
+Rights; s 24 of the Victorian Charter of Human Rights and Responsibilities Act 2006). A 
+strong argument may be made that the East Coast model falls foul of this fundamental 
+principle based upon it: 
+ 
+ 
+not allowing a respondent to include any reasons for withholding payment in its 
+adjudication response unless those reasons have previously been included in the 
+payment schedule (s 20(2B) of the NSW Act); and, 
+ 
+                                               
+9 Ie, the equivalent of the “respondent” in East Coast terminology. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+40 
+ 
+barring the respondent from lodging an adjudication response if it has not served a 
+payment schedule within the stipulated timeframe (ie, 10 business days after the 
+payment claim is served except in the SA Act which allows 15 business days). 
+ 
+Indeed, a significant proportion of respondents have lost their right to be heard by an 
+adjudicator on the basis that they have failed to duly serve a payment schedule on the 
+claimant. In Queensland, for example, this proportion amounts to 39% of all adjudication 
+applications to date in the 2010/11 financial year (Building and Construction Payments 
+Agency 2011).  
+ 
+         Antecedents 
+ 
+ 
+ 
+ 
+ 
+ 
+       Consequences 
+ 
+Figure 1 Antecedents and consequences of procedural justice                Source: Allred (2005: 91)  
+ 
+Davenport (2010) argues that the East Coast model‟s restrictions on respondents being able 
+to have their reasons for withholding payment heard by an adjudicator do not compromise 
+procedural justice. In this respect, Davenport (2010: 10) draws an analogy with formal legal 
+court proceedings, stating: “It [the East Coast model adjudication process] is not very 
+different to the court process. If a defendant fails to lodge a defence, the defendant cannot 
+complain if the claim is decided on the claimant‟s evidence”. It is contended, however, that 
+Davenport‟s argument overlooks three significant points. 
+ 
+Firstly, statutory adjudication is a form of alternative dispute resolution (ADR), and is not 
+intended to mirror formal court proceedings. As Bowsher J put it, in the English High Court 
+case of Austin Hall Building Ltd v Buckland Securities Ltd [2001] EWHC Technology 434 at 
+[19]: “Proceedings before an adjudicator are not legal proceedings. They are a process 
+designed to avoid the need for legal proceedings”. Thus, in the interests of conducting an 
+ADR process which is procedurally satisfactory to both parties, every possible opportunity 
+should be given to an adjudicator to hear both sides of the argument when determining the 
+outcome of the payment dispute. This would encourage both parties to accept the 
+Participation: 
+ 
+1. Voice 
+2. Feeling that 
+    perspective has     
+    been considered 
+3. Input on design 
+    of process 
+ 
+ 
+Perceptions 
+of procedural 
+justice 
+ 
+Satisfaction with 
+outcome 
+Willingness to 
+settle 
+Willingness to abide 
+by agreement 
+Feelings of trust, 
+cooperation, and 
+commitment toward 
+other side 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+41 
+adjudicator‟s determination, and deter a losing party from subsequently pursuing the dispute 
+in court or arbitration – hence achieving the aim of avoiding the need for legal proceedings, 
+the costs of which are ultimately detrimental to all parties associated with the construction 
+industry.  
+ 
+The application of differing requirements with respect to the opportunity to have one‟s 
+arguments heard in a dispute resolution process, as in this case between litigation and 
+statutory adjudication, is consistent with the court‟s approach in administrative law that rules 
+of natural justice should be flexible and fair in all the circumstances of a particular case 
+(Aronson, Dyer & Groves 2004: 468). Such circumstances include a consideration of the 
+nature of the dispute resolution process being used. As stated by Kitto J in Mobil Oil 
+Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504: “What the 
+law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a 
+label for any fixed body of rules. What is fair in a given situation depends upon the 
+circumstances”. Thus, even if one were to accept Davenport‟s analogy between the East 
+Coast model‟s statutory adjudication process and formal court proceedings, the nature and 
+objectives of the dispute resolution processes being used would justify a difference in the 
+content of procedural fairness rules with respect to being given an opportunity to have one‟s 
+case heard. Litigation is in nature a formal process resulting in a final binding determination, 
+as opposed to the nature of statutory adjudication which is a form of ADR leading to a 
+determination which is binding in the interim. The objective of statutory adjudication, as 
+previously stated, as a form of ADR, should be to avoid the need for legal proceedings. 
+ 
+Secondly, rather than legal proceedings, a more accurate analogy of the East Coast model‟s 
+statutory adjudication process, as previously observed by Davenport (2007) himself, is that 
+of an independent certification process. With respect to the enforcement of contractual 
+payment certificates in court, the established common law position is to allow a defendant to 
+thwart a plaintiff‟s application for summary judgement by the raising of a cross-claim for 
+which the defendant can show a reasonable cause of action (Dey v Victorian Railways 
+Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for 
+Railways (NSW) (1964) 112 CLR 125), even if such cross-claim is raised for the first time 
+after the date of certification. The courts have adopted this position in order that a defendant 
+who may have a valid case for a cross-claim against a certified contractual payment will not 
+be denied their right to have their case heard before payment is ordered, because to deny 
+such a right would deprive the defendant of both procedural and substantive justice. As 
+Habersberger J stated in Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd 
+[2005] VSC 388 at [11]: 
+ 
+The power to order summary judgment is one that should be exercised with great care 
+and should never be exercised unless it is clear that there is no real question to be 
+tried. If it is not possible to say without doubt on the whole of the material that there is 
+no question to be tried, there should be leave to defend. 
+ 
+This is not dissimilar, in principle, to the situation where a respondent has a valid reason for 
+withholding monies in a payment claim under the East Coast model‟s payment system, but 
+did not raise the reason in a payment schedule. Indeed, if the East Coast model is viewed as 
+akin to an independent certification process with an adjudicator‟s determination equating to 
+an independent payment certificate, then a reason for withholding payment raised by a 
+respondent for the first time in its adjudication response would actually be notified to the 
+independent certifier (the adjudicator) within a reasonable amount of time before the 
+independent payment certificate (adjudicator‟s determination) is due to be issued. Although, 
+as discussed below in further detail, the original object of the East Coast model was not 
+generally for disputed cross-claim amounts for debts or damages (in the form of set offs or 
+back charges) to be subject to adjudication, it should be noted that: in practice some 
+adjudicators are allowing and assessing them (Davenport 2007: 22); and, the East Coast 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+42 
+model does allow for set offs against payment claims for the estimated cost of rectifying any 
+defective work by the contractor (s 10(1)(b)(iv) of the NSW Act). 
+ 
+The problem with the common law position in practice, however, has been that the duration 
+and expense of a full litigation process have been prohibitive to potential plaintiff contractors 
+– thus when a contractor‟s summary judgment application is denied, the contractor simply 
+cannot afford to pursue its payment claim in a full court trial. This impracticality of the court 
+system has caused injustice to contractors. However, whilst this presents a practical problem 
+at common law due to the inefficiencies of the litigation process, it does not present such a 
+problem if a rapid and inexpensive statutory adjudication process is available to the claimant. 
+ 
+Thirdly, even if one were to accept the proposition that statutory adjudication proceedings 
+were akin to formal court proceedings, as Fenwick Elliott (2010: 4) points out: 
+ 
+There are many reasons why parties may fail to meet a procedural deadline for the 
+lodging of a defence, and courts throughout the common law world allow defendants 
+nevertheless to advance their cases, where appropriate with an accompanying cost 
+order.  To do otherwise offends against the fundamental principle of natural justice that 
+both  parties should be given the opportunity to be heard.  
+ 
+Procedural justice under the East Coast model is further limited by it restricting an 
+adjudicator to a consideration of documents submitted by the parties when making his or her 
+determination, which in practice means that an adjudicator under the East Coast legislation 
+often makes a determination on documents only. This severely limits the ability of the 
+adjudicator to use their discretion to exercise more procedural flexibility in order to ascertain 
+the pertinent facts and law.  
+ 
+Other issues which restrict procedural justice exist in the East Coast model, including the 
+restriction on parties to agree upon a particular adjudicator, and the restriction on legal 
+representation at conferences (s 21(4A) of the NSW Act). In contrast, the West Coast model 
+allows for the parties to the contract to agree upon a registered adjudicator or prescribed 
+appointer (s 26(1)(c) of the WA Act), and does not specifically preclude legal representation 
+at hearings. Whilst such issues may not be as significant, or affect as many cases, as those 
+previously raised, they may well be highly relevant in large and/or complex cases where the 
+communication of complex legal and factual issues  by trained legal counsel, and 
+determination by a mutually respected adjudicator, would give the parties confidence in the 
+outcome.  
+ 
+The more restrictive, and less procedurally just, design of the East Coast, as compared to 
+the West Coast, adjudication process can be explained by the more limited scope of the 
+East Coast legislation. The East Coast legislation was only intended to cover „purely 
+progress payment claims‟ (Davenport 2007: 15). Consequently, the East Coast adjudication 
+scheme was designed solely for the valuation of construction work undertaken or related 
+goods and services supplied. As submitted by Brand and Davenport (2010: 5), the East 
+Coast adjudication scheme was not intended (and, therefore, designed) to accommodate 
+more complex claims for monies due under the contract such as, for example, delay 
+damages claims by a contractor or liquidated damages claims which the principal, or their 
+contract administrator, may set off against a progress claim. Accordingly Davenport (2007: 
+23) states “adjudication of a progress claim is a fast track process that is not suitable for 
+deciding issues of breach of contract, extensions of time, repudiation and termination, 
+causation, quantification of damages etc.”.  
+ 
+Consequently, the role of the adjudicator under the East Coast process is essentially limited 
+to determining a progress claim amount by assessing the quantity of construction work 
+undertaken (or related goods and services supplied) and whether such work (or goods and 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+43 
+services) accord with the contract requirements in terms of scope and quality, and valuing 
+such work at the applicable contract prices or rates (s 10(1)(b)(i), (ii) & (iii) of the NSW Act). 
+It is worth reiterating here that the East Coast legislation does provide for statutory set off in 
+one respect: the estimated cost of rectifying any defective work by the contractor (s 
+10(1)(b)(iv) of the NSW Act), the evaluation of which is consistent with the adjudicator‟s 
+general role as assessor of quantity and quality of work. 
+ 
+The difference in progress payment amount between the statutory entitlement, as 
+determined by the adjudicator under the East Coast legislation, and the contractual 
+entitlement, as determined by the contract administrator, appears to have resulted in some 
+confusion and inconsistency with respect to what amounts should or should not be included 
+in an adjudicator‟s determination. Accordingly, with respect to set offs under the current East 
+Coast adjudication process, Davenport (2007: 22) states: 
+ 
+There are differences in the approach taken by adjudicators. Some take the approach 
+that only a debt (owed to the purchaser) that is admitted by the supplier or has been 
+decided by a court or tribunal or in arbitration or has been created under a dispute 
+resolution clause in the contract, can be set off against progress payments… Other 
+adjudicators decide disputed issues of liability for and quantum of the back charges… 
+Some adjudicators allow a set off of an amount claimed by the purchaser even if 
+liability and quantum have not been proven.  
+ 
+Furthermore, the NSW judiciary has allowed claimants to recover amounts for delay 
+damages in adjudicated payment claims under the Act.10 According to Davenport (2007: 14) 
+and Davenport & Brand (2010: 5), this creates an “imbalance” as only one party is allowed to 
+apply for adjudication of payment disputes regarding damages. As claims for damages 
+falling within the scope of the contract (eg, contractors‟ claims for delay and disruption costs 
+caused by principals, and principals‟ claims for liquidated or general damages for 
+contractor‟s delay in achieving practical completion) have the potential to be made by either 
+contractual party, it is procedurally unfair to allow only one party the right to refer such claims 
+to the Act‟s dispute resolution processes. 
+  
+Thus, whilst the East Coast legislation may not have been originally designed or intended to 
+resolve disputes regarding claims for debts or damages, it is currently being used for this 
+purpose. 
+ 
+Consequently, notwithstanding the reason for the more restrictive adjudication scheme of the 
+East Coast model, its inherent lack of procedural justice is likely having significant impacts 
+upon substantive, or distributive, justice. It may be considered as somewhat disconcerting, 
+therefore, that multi-million dollar progress claim disputes are being resolved, albeit on an 
+interim basis, by means of a fast track adjudication scheme which limits the adjudicator‟s 
+power to investigate and potentially bars a respondent from having its arguments heard by 
+the adjudicator. 
+  
+Restriction on Freedom of Contract 
+As noted by Bell & Vella (2010: 569), the UK legislation, which is a lot less regulatory in 
+nature than the East Coast legislation, has been criticised as representing an unjustified 
+incursion into freedom of contract. In this respect, as noted by Bell and Vella (2010: 569), 
+Lloyd (2001: 448) commented in relation to the way in which coverage of the UK Act was 
+framed: 
+                                               
+10 See Coordinated Construction Co Pty Ltd v JM Hargreaves Pty Ltd [2005] NSWCA 228; Coordinated 
+Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd & Ors . [2005] NSWCA 229; Minister for Commerce 
+(formerly Public Works & Services) v Contrax Plumbing (NSW) Pty Ltd & Ors [2005] NSWCA 142; and, John 
+Holland Pty Limited v Roads & Traffic Authority of New South Wales & Ors [2007] NSWCA 19. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+44 
+ 
+It is hard to think of another comparable case of Parliament singling out parts of a 
+sector of the commercial life of the country and requiring them to alter their contracts… 
+on the basis that it knew better than its members how their commercial relationships 
+should be regulated. It is a remarkable interference in the freedom of contract enjoyed 
+by people who are normally well able to look after themselves. 
+ 
+Further, as noted by Bell and Vella (2010: 569), Duncan Wallace (1999: 21) was particularly 
+critical of the UK Act‟s application as between the principal and the main (or head) 
+contractor: 
+ 
+Here adjudication does not fill a gap, as it might be said to do in… sub-contracts… but 
+it quite simply abrogates at a stroke the long-established machinery of professional 
+administrative regulation during the construction period, subject to later arbitration or 
+litigation, which has evolved and been implemented by most commonly used forms of 
+main contract in England and the Commonwealth for over a century. 
+ 
+The undermining of the traditional independent contractual payment certification process by 
+the contract administrator, provided for in the vast majority of standard forms of construction 
+contracts, is indeed a common feature to all the enacted construction industry payment 
+legislation. The legislation adopts a „one-size fits all‟ approach rather than targeting those 
+lower hierarchical tiers of the contractual chain where traditional independent contractual 
+payment certification mechanisms are not commonly provided. 
+ 
+This is the case despite there seeming to be little evidence to support a „one-size fits all‟ 
+approach. Accordingly, albeit in the English context, Duncan Wallace (1999: 21) points out 
+that in the Latham Report (Latham 1994), the catalyst for the UK Act, the only evidentiary 
+basis in support of alleged bias or unfairness in the contractual payment traditional system 
+relates to the quite different sub-contract setting, and not the principal/head contractor 
+setting. 
+ 
+Towards the top of the contractual chain are those parties (principal, head contractors and 
+large sub-contractors) who are more likely to have equality of bargaining power with each 
+other, and have entered into contracts which provide for an independent payment 
+certification process by a contract administrator. Conversely, towards the bottom of the chain 
+are those parties (medium and small sized sub-contractors) who are more likely to have 
+inequality of bargaining power with their principals, and have entered into contracts which do 
+not provide for an independent payment certification process by a contract administrator. 
+Accordingly, Fenwick Elliott (2010: 2) observes: 
+ 
+It is certainly true that… head contracts frequently provided for an architect or 
+engineer to act as certifier, but there was no history of any such arrangements being 
+applied down the contractual chain to the case of subcontracts, where individual 
+tradesmen were in any position analogous to employees. 
+ 
+Whilst the application of statutory mandatory adjudication to the whole contractual chain may 
+be regarded as contentious, the situation under the East Coast model is compounded further 
+still by the provision for a highly regulatory dual payment system (i.e., statutory payment 
+scheme alongside contractual payment scheme) which has the potential to override several 
+freely agreed contractual provisions relating to payment (e.g., provisions regarding making 
+claims for payment, responding to claims for payment and time for payment).  
+ 
+Furthermore, s 34 of the NSW Act, and its equivalent in the other East Coast Acts, provides: 
+(1) The provisions of this Act have effect despite any provision to the contrary in any contract.  
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+45 
+(2) A provision of any agreement (whether in writing or not):  
+(a) under which the operation of this Act is, or is purported to be, excluded, modified 
+or restricted (or that has the effect of excluding, modifying or restricting the operation 
+of this Act), or  
+(b) that may reasonably be construed as an attempt to deter a person from taking 
+action under this Act,  
+is void. 
+The scope of s 34, and its potential to be an incursion on freedom of contract, is still 
+unknown.11 Indications from the NSW judiciary to date suggest that the operation of s 34 will 
+depend upon a contractual provision‟s degree of inimicality upon the relevant statutory 
+provision. For example, Hodgson JA stated in Minister for Commerce v Contrax Plumbing 
+[2004] NSWCA 142 at [54]: 
+ 
+in my opinion a provision of a contract as to the determination of reference dates, or 
+as to the calculation of the amount of progress payments, could be such as to restrict 
+the operation of the Act within the meaning of s.34, even though the Act in s.8(2)(a) 
+and s.9(a) expressly defers to such provisions. For example, if a contract provided for 
+yearly reference dates, or provided that progress payments should be calculated on 
+the basis of 1% of the value of work done, in my opinion such provisions could be so 
+inimical to s.3(1), s.3(2) and s.8(1) as to be avoided by s.34. 
+ 
+There seems little doubt, however, that s 34 has eroded freedom of contract.  Accordingly, 
+McDougall (2006) states: 
+ 
+s.34 will operate in all circumstances where contractual clauses attempt to eradicate 
+or limit the rights given under the Act. As a result, the section is likely to alter the effect 
+of numerous contractual provisions. 
+ 
+Additionally, if the true intent of the East Coast legislation were followed, and damages 
+falling within the scope of the contract were to be excluded from progress payments, the 
+East Coast legislation may entitle a claimant to adjudicated amounts that are not in fact due 
+as agreed under the contract. 
+ 
+Whilst the West Coast model imposes statutory adjudication upon the entire contractual 
+chain, it otherwise generally endeavours to preserve freedom of contract.12 As stated by Ms 
+MacTiernan (2004: 275) in her Second Reading speech for the WA Construction Contracts 
+Bill: 
+ 
+The Bill draws on legislation already enacted in the United Kingdom, New South 
+Wales and Victoria, but has been drafted to overcome a number of problems that have 
+become apparent in those jurisdictions. In particular, it is based on enforcing the 
+contract between the parties and does not introduce a separate, and possibly 
+conflicting, statutory right to payment.  
+ 
+                                               
+11 For decisions considering the effect of s 34, see Minister for Commerce v Contrax Plumbing[2004] 
+NSWSC 823; John Goss Projects v Leighton Contractors Pty Ltd & Davenport [2006] NSWSC 798; 
+and,  John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2006] NSWSC 874.   
+12 Although the West Coast legislation is not totally without regulation on the contractual payment 
+system. For example, the West Coast legislation prevents the period between payment claim and 
+payment from being any longer than 50 days – see s 10 of the WA Act. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+46 
+The degree of regulation afforded by the East Coast model, therefore, is significantly more 
+than that imposed by the UK Act or the West Coast model.  
+ 
+It is also worth noting here that the regulatory nature of the East Coast model is at odds with 
+the approach of the judiciary in recent times which has conspicuously refrained from 
+interfering with freedom of contract even in cases where a contractual term may appear, at 
+first sight, to be harsh (Multiplex Constructions (UK) Ltd v. Honeywell Control Systems Ltd 
+(No.2) [2007] EWHC 447 (TCC); Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71; 
+State of Tasmania v Leighton Contractors Pty Ltd [2005] TASSC 133). Accordingly, their 
+Honours (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ ) in Ringrow Pty Ltd 
+v BP Australia Pty Ltd [2005] HCA 71 at [31] and [32] stated: 
+ 
+The law of contract normally upholds the freedom of parties, with no relevant disability, 
+to agree upon the terms of their future relationships… Exceptions from that freedom of 
+contract require good reason to attract judicial intervention to set aside the bargains 
+upon which parties of full capacity have agreed. 
+ 
+It may be argued that the highly regulatory nature of the East Coast model is akin to that 
+usually found in legislation enacted to protect vulnerable individual consumers and 
+employees. Indeed, Davenport (2010: 2-3) draws parallels between construction industry 
+payment legislation and protection afforded to employees under industrial relations 
+legislation ( s 118(1) of the Industrial Relations Act 1996 (NSW), and s 323(1) of the Fair 
+Work Act (Cth)), and notes that similar protection was not available for contractors who were 
+not employees until the East Coast legislation was enacted. 
+ 
+However, even if one were to accept that such regulatory legislation was justified in the 
+context of small subcontractors, it would seem extraordinary that legislation akin to that of 
+employee protection legislation should be extrapolated to protect contractors throughout the 
+whole industry regardless of size. Nevertheless, it is the case that the East Coast model with 
+all its regulations, curbs on freedom of contract, and restrictions on procedural justice is 
+being used by contractors to make payment claims for tens of millions of dollars.13   
+ 
+Uptake Rates 
+Table 2 shows the total number of adjudication applications lodged in the four jurisdictions of 
+NSW, Queensland, Victoria and WA since commencement of the respective Acts.14 
+ 
+The table shows that there has been a significant use of statutory adjudication in NSW and 
+Queensland since commencement of the legislation. In contrast, however, statutory 
+adjudication under the Victorian Act has been used very little. The Victorian Act deviates the 
+most from the other East Coast Acts particularly with respect to making certain matters 
+“excluded amounts” from payment claims, as discussed in further detail by Bell and Vella 
+(2010: 574). It is, perhaps, such complexities in the Victorian Act which have deterred usage. 
+ 
+In 2009/10 there were 999 adjudication applications in Queensland (Building and 
+Construction Industry Payments Agency 2010). In 2008, there were 940 adjudication 
+applications in NSW (NSW Procurement, NSW Department of Commerce. Data obtained 
+upon request). In 2008/09, there were 105 adjudication applications made in WA 
+(Construction Contracts Registrar (WA) 2009).  
+                                               
+13 According to the Queensland Building and Construction Industry Payments Agency Report June 2009: 62 of 
+the determined adjudications in 2008/2009 involved payment claims in excess of $500,000, and the largest 
+payment claim, for which an adjudicator‟s decision had been released, was in the amount of  $16,094,294.  Data 
+obtained from the NSW Department of Commerce shows maximum payment claims of almost $83.4  million in 
+2005,  $93.9 million in 2006,  $26.7 million in 2007, and $9.3 million in 2008. 
+14 In the case of NSW, since commencement of the amended Act in March 2003. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+47 
+When comparing these figures, the relative size of population and economy of each 
+jurisdiction should be considered. Queensland‟s population is around 95% larger (Australian 
+Bureau of Statistics 2010), and final demand around 65% larger (Australian Bureau of 
+Statistics 2009), than WA‟s. NSW population is 215% larger (Australian Bureau of Statistics 
+2010), and final demand around 150% larger (Australian Bureau of Statistics 2009), than 
+WA‟s. Based upon the annual adjudication application figures quoted above, the number of 
+annual adjudication applications in Queensland is 850%, and in NSW is 795%, more than in 
+WA. Therefore, even when adjusting for population and economy, it can be seen that 
+statutory adjudication is being used to a far greater extent in Queensland and NSW than in 
+WA.  
+ 
+The Building Services Authority (Qld) (2010: 10) observes that “the average payment claim 
+proceeding to adjudication in Queensland is only 29% ($264,493) of the average payment 
+claim proceeding to adjudication in WA ($902,280)”, and notes that this means that 
+adjudication under the Queensland Act is being used by many more small to medium size 
+contractors and suppliers than are using adjudication under the WA Act.  However, the mean 
+WA payment claim figure quoted by the Building Services Authority (Qld) does not appear to 
+accord with that of $341,32415 reported by the Construction Contracts Registrar (WA) (2009) 
+for payment claims made in 2008/2009, which would mean that the average payment claim 
+in Queensland for 2008/200916 was 69% of that in WA. 
+ 
+ 
+New South Wales 
+(amended Act 
+commenced March 
+2003, calendar 
+years 2003-2009) 
+Queensland 
+(commenced 
+October 2004, 
+calendar years up 
+to December 
+2009) 
+Victoria 
+(commenced 
+2002, calendar 
+years 2002-
+2009) 
+Western 
+Australia 
+(commenced 
+2005, calendar 
+years up to 
+December 2009) 
+Applications 
+Lodged 
+5877 
+2760 
+258 
+307 
+Total Claim 
+Value (rounded 
+up) 
+$2.5 billion 
+$730 million 
+$152 million 
+$277 million 
+Table 2 Use of rapid adjudication – Interstate comparison17 
+                                                                                 Source: Building Services Authority (Qld) (2010: 8) 
+ 
+ 
+The Building Services Authority (Qld) (2010: 10) also notes that “under the BCIPA for the 
+2008/2009 financial year, of the 754 decided adjudication matters, 463 (61%) were in 
+respect of payment claims under $40,000”. 
+    
+The data presented in Table 3 shows that in 2008/2009, 52% of all adjudicated payment 
+claims in Queensland were for less than $25,000, whereas in WA 30% of all payment claims 
+lodged were for less than $25,000. 
+ 
+ 
+                                               
+15 Even when the mean payment claim calculation is adjusted to exclude payment claims dismissed and 
+withdrawn, the result is still only $347,712. 
+16 Using the figure of $234,800 reported by the Building and Construction Industry Payments Agency (2009). 
+17 Note: The Queensland Building Services Authority did not consider the NT Act in this analysis because of the 
+very small number of adjudications received over its 5½ years of operation. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+48 
+ 
+Range of Claims 
+Queensland 
+(Building and Construction Industry 
+Payments Agency 2009) 
+Western Australia 
+Construction Contracts Registrar 
+(WA) (2009) 
+Number of 
+Adjudication 
+Decisions 
+Released 
+Percentage of 
+Total Adjudication 
+Decisions 
+Number of 
+Adjudication 
+Applications 
+Lodged 
+Percentage of 
+Total Adjudication 
+Applications 
+lodged 
+$0-$9,999 
+241 
+32% 
+19 
+18% 
+$10,000-$24,999 
+150 
+20% 
+13 
+12% 
+$25,000-$99,999 
+185 
+25% 
+27 
+26% 
+$100,000-$249,999 
+79 
+10% 
+12 
+12% 
+$250,000-$499,999 
+37 
+5% 
+15 
+14% 
+>$500,000 
+62 
+8% 
+19 
+18% 
+Total 
+754 
+100% 
+105 
+100% 
+Table 3 Number of adjudications by claim value in Queensland and WA, 2008/200918 
+ 
+Efficiency of Adjudication Process 
+The efficiency of each of the legislative models is considered with respect to adjudication 
+fees, duration of the adjudication processes, and the volume of litigation resulting from 
+statutory adjudication. 
+ 
+Adjudication Fees 
+Table 4 shows the mean adjudication fees for a various ranges of payment claim sizes in 
+2008/2009 as reported by the Building and Construction Industry Payments Agency (2009) 
+and the Construction Contracts Registrar (WA) (2009). 
+ 
+Range of Claims 
+Mean fees for Adjudication 
+Queensland 
+Western Australia 
+$0-$9,999 
+$919 
+$1,364 
+$10,000-$24,999 
+$1,836 
+$2,653 
+$25,000-$99,999 
+$3,432 
+$2,650 
+$100,000-$249,999 
+$6,123 
+$6,133 
+$250,000-$499,999 
+$9,029 
+$3,923 
+>$500,000 
+$16,324 
+$6,065 
+Table 4 Mean adjudication fees reported in Queensland and WA in 2008/2009 
+ 
+It must be noted that these mean adjudication figures are not directly comparable as the WA 
+figures have been calculated based upon the total number of adjudication applications 
+received during the year,19 whereas the Queensland figures have been calculated based 
+upon the number of adjudication decisions released. Therefore, these figures can only be 
+                                               
+18 Although not a direct comparison – the Queensland figures are for adjudication decisions released and the WA 
+figures are for adjudication applications lodged – these figures provide an indicative measure of the proportionate 
+numbers of adjudications at each claim value. 
+19 Of the 105 applications received in WA, 37 were either dismissed withdrawn or are pending. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+49 
+treated as indicative as to comparative levels of adjudication fee. It may be observed from 
+the figures that adjudication fees are low in both jurisdictions. Mean adjudication fees are at 
+least around 45% lower in Queensland for payment claims below $25,000. However, for 
+larger payment claims mean adjudication fees between the two jurisdictions would appear to 
+be more on an equal footing or, if anything, more expensive in Queensland.20 
+ 
+Duration of Adjudication Scheme 
+Practically, there is little difference in the time allowed for an adjudicator to make his or her 
+determination between the East Coast and West Coast models. The East Coast model 
+requires determination within 10 business days (s 21(3) of the NSW Act), whereas the WA 
+Act requires determination within 14 days (s 31(1) of the WA Act).21 There is a difference, 
+however, in timing with respect to the period which a respondent has to serve a response to 
+the adjudication application. 
+  
+Under the East Coast model a respondent has to lodge its adjudication response within 5 
+business days after receiving the claimant‟s adjudication application or 2 business days after 
+receiving notice of the adjudicator‟s acceptance of the adjudication application, whichever is 
+the later (s 20(1) of the NSW Act). Thus, assuming an adjudication response is lodged 5 
+business days after the adjudication application is received by the respondent and the 
+adjudicator notifies their acceptance of the pplication in a timely fashion,22 the whole 
+adjudication process from application to determination (presuming the adjudicator takes the 
+full 10 business days to make their determination) takes 15 business days (or 3 weeks). 
+ 
+The West Coast model allows the respondent 14 days23 (s 27(1) of the WA Act) from the 
+date on which the adjudication application was served to prepare and serve its adjudication 
+response. Thus, assuming an adjudication response is lodged by the respondent 14 days 
+after the serving of the adjudication application, the whole adjudication process from 
+application to determination (presuming the adjudicator takes the full 14 days to make their 
+determination) takes 28 days (or 4 weeks). 
+ 
+Under the East Coast model‟s payment system, as described above, if the respondent takes 
+the full 10 business days24 permitted after the payment claim is served to lodge a payment 
+schedule, the soonest which an adjudication application can be lodged is on the 11th 
+business day after the payment claim is served. Thus, the minimum period of time from 
+payment claim to adjudication determination will be approximately 5 weeks. In the case 
+where a respondent fails to serve a payment schedule and is given a second chance to do 
+so by the claimant who chooses to apply for adjudication (s 17(2) of the NSW Act), this 
+period of time extends to around 6 weeks.  
+ 
+Under the West Coast model there is, of course, no statutory payment system. Therefore, 
+the minimum period of time between a payment claim and an adjudication application will be 
+                                               
+20 However, such comparison for larger claim ranges must be treated with caution due to the outlier effect. 
+Accordingly, in Queensland the maximum single payment claim with a decision released in 2008/2009 was in the 
+amount of $16,094,294, whereas, in WA it was $4,464,818.  
+21 The WA Act does not define „day‟. However, s 61(1)(e) of the Interpretation Act (WA) 1984 states that where 
+the time limited for the doing of a thing expires or falls upon a Saturday, Sunday or public holiday, the thing may 
+be done on the next day that is not an excluded day. 
+22 Under s 21(3) of the NSW Act, the start of the adjudication termination period is triggered by the adjudicator‟s 
+notice of acceptance. In practice this may mean that the determination period may commence before the 
+adjudication response has been lodged. However, the adjudication determination period is triggered by the 
+serving of the adjudication response under the Queensland, SA, Tasmanian, ACT, WA and NT Acts.  
+23 S 29(1) of NT Act allows 10 working days. 
+24 15 business days under the SA Act s 14(4)(b)(ii).  
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+50 
+subject to the contractually agreed payment provisions. The West Coast model provides that 
+a party must apply for adjudication within 28 days after a dispute arises (s 26(1) of the WA 
+Act). A dispute arises if by the time when the amount claimed in a payment claim is due to 
+be paid under the contract, the amount has not been paid in full, or the claim has been 
+rejected or wholly or partly disputed (s 6(a) of the WA Act). Under a typical standard form of 
+building contract conditions, such as the Australian Standard General conditions of contract 
+(AS 2124-1992), the principal has a period of 14 days after receipt of the payment claim to 
+issue a payment certificate (which shall contain any reasons for withholding payment) and a 
+further 14 days to pay the contractor.25 Thus, the minimum period of time from payment 
+claim to adjudication determination will be approximately 6 weeks where the contractor 
+disputes the certified amount,26 and 8 weeks where the principal fails to pay the certified 
+amount. 
+ 
+Thus, it may be seen that an adjudication determination will generally take 1 to 2 weeks 
+longer to obtain under the West Coast model as compared to the East Coast model. In the 
+interests of achieving more procedural justice in a determination, 1 to 2 weeks extra is a 
+relatively small price to pay. However, for small contractors whose commercial survival may 
+be dependent on timely payment of relatively small claims, 1 to 2 weeks may indeed make a 
+significant difference.  Further, small contractors nearer the bottom of the hierarchical 
+contractual chain are more likely to be vulnerable to unfavourable contract payment terms, 
+due to their weaker bargaining position, which may extend the period between the date of 
+claim and date of payment beyond those normally found in standard forms of building 
+contracts. 
+ 
+Litigation 
+Since its commencement, the NSW Act has generated a significant amount of litigation. 
+Since 2001, there have been well in excess of 200 judgments emanating from the NSW 
+Supreme Court and Court of Appeal in relation to the NSW Act. The majority of these 
+judgments concern cases where a respondent has attempted to have an adjudicator‟s 
+determination, or part thereof, set aside. Invariably, the judgments have concerned 
+adjudicator determinations of significant amounts (usually, at least, hundreds of thousands of 
+dollars). 
+  
+The numbers of such applications show little sign of abatement, with at least 21 judgments27 
+coming out of the NSW Supreme Court, and 4 out of the NSW Court of Appeal, in 2009 
+concerning, for one reason or another, challenges to the payment of an amount determined 
+in adjudication. A significant proportion of these applications have been made on the basis 
+that either a payment claim28 or payment schedule29 has not been validly served in 
+accordance with the Act‟s dual payment system.  
+                                               
+25 If no such timeframes are provided for in the building contract then the West Coast model implies the following 
+provisions: a notice of dispute (stating reasons for disputing the claim) must be given within 14 days of the 
+payment claim, and the due date for payment of any undisputed claim (or portion thereof) is 28 days after the 
+payment claim is received by the paying party – see Schedule 1, Division 5 of the WA Act.     
+26 Assuming the certificate containing reasons for withholding payment is issued at the end of the contractually 
+prescribed period. 
+27 This figure was obtained by conducting a search on the NSW Lawlink Case Law website 
+<http//:www.lawlink.nsw.gov.au/lawlink/caselaw/ll_caselaw.nsf/cases/cl_sc > using the keywords “Building and 
+Construction Industry Security of Payment Act”. The figure is indicative and not necessarily a fully accurate 
+number of the total judgments in 2009. 
+28 5 of the 21 cases referred to above in 2009 concerned whether the payment claim (in full or in part) was valid: 
+see The Owners Strata Plan 56587 v Consolidated Quality Projects [2009] NSWSC 1476 ; Allpro Building 
+Services v C&V Engineering Services [2009] NSWSC 1247; Urban Traders v Paul Michael [2009] NSWSC 
+1072; The University of Sydney v Cadence Australia Pty Limited & Anor [2009] NSWSC 635; Perform (NSW) Pty 
+Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416.   
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+51 
+Furthermore, following the NSW Court of Appeal‟s recent judgment in Chase Oyster Bar v 
+Hamo Industries [2010] NSWCA 190, which may have reopened the door30 for adjudicators‟ 
+determinations to be amenable to orders in the nature of certiorari, there would now appear 
+to be an increase in the potential scope of grounds31 upon which a disgruntled party could 
+mount a challenge to an adjudicator‟s determination. It remains to be seen, however, 
+whether the Chase Oyster Bar decision will encourage an increase in the amounts of 
+challenges in NSW. 
+ 
+There has been a total of three WA Supreme Court judgments (and no WA Court of Appeal 
+judgments) in relation to issues concerning the WA Act since its enactment in 2004, only one 
+(O’Donnell Griffin Pty Ltd v John Holland Pty Ltd [2009] WASC 19 ) of which concerned an 
+application to have the adjudicator‟s determination set aside.32 
+ 
+The relatively large amount of litigation arising from the NSW model detracts from the 
+efficiency of statutory adjudication as a dispute resolution process for payment claims in the 
+construction industry due to the resultant increased transaction costs, defined as “the time, 
+money, and emotional energy expended in disputing, the resources consumed and 
+destroyed, and the opportunities lost” (Ury, Brett & Goldberg 1988: 11), in resolving such 
+disputes. Additionally, it may be indicative of a lack of confidence which adjudication users 
+have in the adjudication process to deliver accurate and fair outcomes.  
+ 
+Overview of Existing Proposals for Harmonisation 
+Davenport’s Proposal for a Dual Process of Adjudication 
+Davenport (2007) has proposed a dual process of adjudication which aims to combine the 
+East Coast and West Coast model statutory adjudication processes in order to “solve many 
+of the perceived problems with adjudication in the building and construction industry” 
+(Davenport 2007: 12).  This proposed dual process has been further discussed by Brand & 
+Davenport (2010).  
+ 
+Davenport (2007: 15) states that: 
+  
+The proposed dual process would retain the [East Coast] certification process for 
+purely progress payment claims, i.e. for claims for the value of work, goods or services 
+that have actually been provided, and would adopt the traditional [West Coast] 
+process for other payment disputes. 
+ 
+Davenport (2007: 16-17) cites examples of such „other payment disputes‟, which he terms 
+„ex-contractual claims‟, including, inter alia: a contractor‟s claim for delay damages for 
+breach of contract by the principal, a contractor‟s claim for the value of extra work carried out 
+for which the superintendent refuses to direct a variation in writing, a principal‟s claim for 
+                                                                                                                                                  
+29 2 of the 21 cases referred to above in 2009 concerned whether the payment schedule was validly served: see 
+Perform (NSW) Pty Ltd v Mev-Aus Pty Ltd trading as Novatec Construction Systems [2009] NSWSC 416, and 
+Lucas Stuart v Hemmes Hermitage [2009] NSWSC 477. 
+30 A „door‟ that was previously shut by the NSW Court of Appeal in Brodyn Pty Ltd (t/as Time, Cost and Quality) v 
+Davenport (2004) 61 NSWLR 421. 
+31 Beyond the “basic and essential” requirements” listed in Brodyn Pty Ltd (t/as Time, Cost and Quality) v 
+Davenport (2004) 61 NSWLR 421 at [53]. 
+32 Note that a search on the WA State Administrative Tribunal (SAT) decisions database website 
+<http://decisions.justice.wa.gov.au/SAT/SATdcsn.nsf> revealed that there have been 34 SAT judgments since 
+the enactment of the WA Act in 2004. However, most of these judgments concern a review of an adjudicator‟s 
+decision to dismiss an adjudication application without making a determination of its merits (see s 31(2)(a) & s 
+46(1) of the WA Act). SAT has made it clear it will only review adjudicators‟ decisions with respect to jurisdiction, 
+and that it will not review an adjudicator‟s determination on the merits – for example, see Match Projects Pty Ltd 
+and Arcon (WA) Pty Ltd [2009] WASAT 134. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+52 
+liquidated or general damages for delay in achieving practical completion, and a principal‟s 
+claim for the costs of having work carried out under the contract, which the contractor 
+disagrees is included in the contract, by another contractor. 
+ 
+Davenport (2007: 15) explains that his proposed dual process of adjudication „would be 
+basically the same as now exists but with slightly different rules for dealing with progress 
+claims and ex-contractual claims‟.  
+ 
+This would, thus, allow an adjudication process which is faster-track, cheaper and 
+significantly more restrictive on the investigative powers of the adjudicator for purely 
+progress payment claims, and a quasi-judicial adjudication process for adjudication of ex-
+contractual claims where, as Davenport (2007: 19) points out, an adjudicator „is more likely 
+to call for further submissions or hold a conference or make an inspection.‟.  
+   
+Notably, however, Davenport has proposed some significant procedural modifications with 
+respect to the operation of the „traditional‟, West Coast, process for adjudication of ex-
+contractual claims in that: 
+ 
+ 
+A statutory system, similar to the current statutory payment system under the East 
+Coast model, is prescribed for the serving of ex-contractual claims by claimants and 
+defences by respondents prior to the lodging of a „traditional‟ process adjudication 
+application. This statutory system provides that: the claimant of an „ex-contractual‟ 
+claim must endorse its claim as being made under the Act; the respondent would 
+have a prescribed period (Davenport uses an example of 10 business days in this 
+respect ) to provide a defence; if no defence was served within the prescribed period, 
+a second chance to serve a defence within a further prescribed period would be 
+permitted subsequent to a reminder notice from the claimant; and, failing the serving 
+of the second chance defence, a claimant could initiate an adjudication by making an 
+application to an authorised nominating authority. 
+ 
+It is proposed that respondents to „ex-contractual‟ claims could provide a defence, 
+cross-claim or defence and cross-claim within the prescribed period. Further, if the 
+defence includes a cross-claim, the claimant would have a prescribed period in which 
+to lodge a response to the cross claim (to be called a „rejoinder‟). Davenport (2007: 
+18) states that: “This simply mirrors the usual processes of claim, defence, cross 
+claim and rejoinder familiar to arbitrators and courts”.  
+ 
+In Davenport‟s dual process, a purchaser who had obtained a determination for an „ex-
+contractual‟ set off claim under the „traditional‟, West Coast, process of adjudication would 
+then be entitled to have that set off made against a progress payment amount being 
+determined under the, East Coast, „certification‟ process of adjudication. 
+    
+Bailey’s Proposal for a Cap on Claim Amounts 
+Bailey (2009: 3) advocates a cap on claim amounts under rapid mandatory adjudication 
+schemes for payment, thereby confining the benefits of the „short, sharp interim adjudication 
+procedure‟ to participants in small business. Accordingly, Bailey (2009: 3) states:  
+ 
+If the intended small business focus of the reform had been more narrowly defined in 
+the legislation and the process refined for that sector of the construction industry, then 
+the complexities that pervade the process might not have developed as they have.   
+ 
+The outline conceptual framework of Bailey‟s proposed scheme essentially involves capping 
+„the value of claims and the amount of main contracts and sub-contracts which are to be 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+53 
+subject to the process … with limited or scaled or stepped processes defined‟ (Bailey 2009: 
+3). 
+ 
+Further, Bailey (2009: 3) proposes that: 
+ 
+the scheme should be limited only to claims for payment for the value of work 
+performed.  This necessarily will include work outside the contractual scope (ie 
+variations). Time-related claims, other than those for which there is established 
+entitlement under contractual regimes, ought be excluded. 
+   
+Thus, larger and more complex disputes arising in the construction industry would not be 
+subject to statutory rapid adjudication, instead being „dealt with under procedures that are 
+developed specifically for them including commercial arbitration‟ (Bailey 2009: 3). 
+ 
+Proposal for a Dual Process of Adjudication based upon Size of Progress 
+Payment Claim 
+Using Davenport‟s concept of a dual process and Bailey‟s concept of claim capping, a hybrid 
+adjudication scheme is proposed for consideration as a harmonised, unifying model. 
+  
+The proposed scheme would be a dual process according to size or value of payment claim. 
+It would employ the East Coast model process for small progress payment claims falling 
+below a prescribed cap value, which it is suggested should initially be $25,000,33 and the 
+West Coast model process for all payment claims above the cap value. Alternatively, the 
+proposed scheme could be a dual process according to a prescribed contract sum (eg, 
+$100,000) with the East Coast model process being used for progress payment claims on all 
+construction contracts below the prescribed contract sum, and the West Coast model 
+process for those above. 
+ 
+Payment claims which could be adjudicated under the East Coast process would be strictly 
+limited to payment claims for construction work carried out or supply of related goods and 
+services. Payment claims which involve disputes over what Davenport terms as „ex-
+contractual‟ claims would not be permitted to be adjudicated under the capped East Coast 
+process, but would be resolved under the West Coast process instead. 
+  
+Progress payment claims which are greater in amount than the capping value for the East 
+Coast process would be adjudicated under the West Coast process. Additionally, any 
+payment claims, regardless of size, which involved „ex-contractual‟ claims (eg, a delay 
+damages claim within the scope of the contract, or a liquidated damages claim set off 
+against the certified payment amount by the principal or its agent) would be adjudicated 
+under the West Coast process. 
+ 
+The case for such a dual process is predicated on the notion that a „one-size fits all‟ 
+approach for the construction industry is inappropriate. Several distinct differences exist 
+between the higher and lower ends of the hierarchical contractual chain on construction 
+projects with respect to, inter alia: use of balanced standard forms of contract, inclusion of 
+impartial independent certifying mechanisms for progress payment in contracts, imbalance 
+of bargaining power between contractual parties, and commercial vulnerability to cash flow 
+problems of relatively small amounts. 
+  
+It may be argued that these differences justify the use of the more regulatory East Coast 
+legislative approach to protect the more vulnerable smaller businesses in the lower tiers of 
+                                               
+33 Based upon the observations that the proportions of adjudication applications in Queensland are far greater for 
+payment claims up to $25,000 than in WA (see Table 3 above), and that adjudication fees for payment claims up 
+to $25,000 are significantly lower in Queensland than in WA (see Table 4 above).  
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+54 
+the hierarchical contractual chain. Further, by confining the use of the East Coast model to 
+small claims of a simple nature, any potential negative consequences of its shortcomings 
+with respect to procedural justice are minimised. 
+  
+There are several reasons which support the consideration of this alternative dual process 
+scheme: 
+ 
+ 
+It would allow both current legislative models which are operating, and have become 
+established, in several Australian jurisdictions to be used in a harmonised model 
+without any significant procedural changes to either existing process. This would not 
+only combine the strengths of both models, but may be more conducive to achieving 
+consensus among all the Australian jurisdictions as to its adoption as the basis of a 
+unifying model. 
+ 
+ 
+It would satisfy the small business focus of parliament in the Eastern States by 
+providing a greater level of regulatory protection to more commercially vulnerable 
+smaller contractors for receiving straightforward progress payment in a timely and fair 
+manner.  
+ 
+ 
+The right to freedom of contract would be preserved in larger contracts, whilst not 
+depriving larger contractors of the benefits of a still rapid and inexpensive West 
+Coast adjudication process for progress payments - albeit one to two weeks slower 
+than for smaller contractors under the East Coast process.    
+ 
+ 
+It would allow adjudications of a „quasi-judicial‟ nature for large and/or complex 
+claims in order to determine the amount which is actually due under the contract. 
+Large and/or complex claims would be subject to the relatively higher levels of 
+procedural justice afforded by the West Coast process. Accordingly, there would be 
+no possibility for a respondent to a large and/or complex claim to have their 
+fundamental right to be heard by the adjudicator denied, and the adjudicator would 
+be able to adopt a more evaluative approach in determining such claims.    
+ 
+ 
+There have been significant uptake rates for adjudication in Queensland and NSW , 
+particularly for smaller claims.  Additionally, there is some evidence that adjudication 
+fees for smaller payment claims (less than $25,000) are several hundreds of dollars 
+lower under the East Coast process (see section 7.1 above). The proposed dual 
+process of adjudication would retain the East Coast process used in Queensland and 
+NSW for smaller claims and, therefore, would be able to capitalise on these 
+successful aspects of the East Coast process. 
+ 
+ 
+There has been a high volume of litigation challenging adjudicators‟ determinations in 
+NSW. Most of this litigation has concerned larger claims, and a significant proportion 
+of such actions have been based upon the East Coast model‟s statutory payment 
+system not being duly followed in some way. The volume of litigation challenging 
+determinations of adjudicator‟s under the WA legislation has, to date, been relatively 
+small. The proposed dual process of adjudication would use the West Coast process 
+for larger claims. Additionally, the proposed dual process does not introduce a 
+statutory system for the serving of claims, defences, counter claims and rejoinders as 
+a preliminary to an „ex-contractual‟ claim, which might potentially encourage further 
+litigation for non-compliance with prescribed submissions procedures.  
+ 
+This proposed dual process concept could be further developed to allow the claimant of a 
+progress payment claim which is less than cap value to have the option to apply for 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+55 
+adjudication under the West Coast instead of the East Coast process if they so choose.34 
+There are two principal reasons as to why a claimant might want to do this which are both 
+related to the preservation of the claimant‟s commercial relationship with the respondent: 
+ 
+i. 
+If the claimant did not endorse their payment claim as being made under the Act, as 
+is a requirement of the East Coast process, it would still be able to avail itself of the 
+West Coast rapid adjudication process. This would circumvent the issue of 
+contractors potentially opting not to endorse their progress payment claims for fear 
+that such endorsement would negatively affect to some degree the working 
+relationship between themselves and their employer.35 
+ii. 
+It would provide access to the West Coast process for a claimant who believes that 
+the West Coast process, which allows the adjudicator wider procedural flexibility, 
+may likely result in the resolution of the progress payment dispute in a more 
+conciliatory nature than under the East Coast process. Thus a claimant would be 
+able to make a judgement call as to whether to sacrifice a faster-track and cheaper 
+East Coast adjudication process for its small progress claim in order to access the 
+potentially more conciliatory West Coast process. 
+This proposed dual process concept may also accommodate payment claims on 
+construction contracts with resident owners of domestic building works („home owners‟)36 as 
+currently occurs under the West Coast model legislation, but not under the East Coast model 
+legislation (s 7(2)(b) of the NSW Act) with the exception of the Tasmanian Act. There is a 
+general view that the East Coast model in its current form does not provide the greater 
+degree of protection that is required for consumers as opposed to commercial operators 
+(Building Services Authority (Qld) 2010: 5). Additionally it is recognised by the Building 
+Services Authority (Qld) (2010: 5) that the exemption of home owner contracts: 
+ 
+appears to be inconsistent with the BCIPA [the Queensland Act] objectives, to provide 
+better outcomes for the industry, particularly since subcontractors and suppliers may 
+make payment claims under BCIPA against a head contractor for domestic building 
+work.   
+ 
+Under the proposed dual process, payment claims on construction contracts with home 
+owners could be made under the West Coast adjudication process only. It is submitted that 
+the West Coast process is more appropriate for home owners as it not only provides 
+marginally longer timeframes for the serving of the prescribed documentation, but also 
+provides more procedural justice – of which particularly pertinent aspects are the rights for 
+home owners to also apply for adjudication of payment claims, and to have an adjudication 
+response heard even if an earlier response to the payment claim has not been served.      
+ 
+Conclusion 
+Two distinct models of construction industry payment legislation have been enacted in 
+Australia.  
+ 
+The East Coast model provides a highly regulatory process designed, in accordance with 
+parliamentary intent, for the fast resolution of progress payment claims by an adjudicator 
+                                               
+34 As suggested by Robert Fenwick Elliott upon review of this paper. 
+35 In their survey,which sought to assess the performance of the NSW Act by surveying the members of two peak 
+trade associations operating in NSW, Brand and Uher (2010: 17) found that around half of the sampled 
+contractor and subcontractor firms felt that endorsement of payment claims negatively affects to some degree the 
+working relationship between the parties to a payment claim . 
+36 As suggested by Robert Fenwick Elliott upon review of this paper. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+56 
+who assesses the value the construction work carried out and related good or services 
+supplied.  
+ 
+The West Coast model provides a process, based upon primacy of contract, designed for 
+the resolution of payment claim disputes ranging from those which are relatively simple to 
+those which are complex in nature. The West Coast model, therefore, anticipates the 
+adjudication of contractual payment claim disputes other than those involving the 
+straightforward valuation of construction work carried out and related good or services 
+supplied. 
+ 
+The scope of both the East and West Coast models is similarly wide-ranging, covering any 
+contractor or supplier, regardless of size, who has undertaken construction work or supplied 
+related goods and services falling within the definition of the legislation.37 In the case of the 
+East Coast model, this is so despite its significantly limited scope with respect to types 
+payment claims which may be subject to adjudication. 
+ 
+The disparity in the East Coast model between wide scope of industry participants and 
+narrow scope of payment claim types covered has led to problems materialising in the 
+operation of the East Coast model. These problems seem to be particularly related to its use 
+for resolving larger progress payment claims. For example, seemingly contrary to 
+parliamentary intent, the East Coast adjudication process has been used to determine delay 
+damages claims by contractors and claims for set offs by principals. From a procedural 
+justice perspective, the East Coast adjudication process is inadequate to deal with such 
+damages claims. 
+ 
+Further, the numerous procedural justice shortcomings of the East Coast model make its 
+adjudication process unsuitable for the resolution of large progress payment claims as well 
+as more complex damages claims. It is perhaps unsurprising, therefore, that the East Coast 
+adjudication process has generated a large volume of litigation in NSW, initiated by 
+disgruntled respondents seeking to challenge adjudicators‟ determinations with respect to 
+larger progress payment claims. 
+ 
+Despite its problems, however, the East Coast model appears to have been successful in 
+terms of uptake rates in NSW and Queensland particularly for smaller claims. When 
+confined to small, straightforward progress payment claims, it may be argued that sacrificing 
+procedural justice may be an acceptable price to pay in order to protect vulnerable small 
+businesses operating in the construction industry. Furthermore, whilst both East and West 
+Coast processes provide rapid adjudication and low adjudication fees, the East Coast 
+process appears to be significantly cheaper in terms of adjudication fees for claims less than 
+$25,00038 and is generally around 1 to 2 weeks quicker. This may be significant in the 
+context of a small business struggling for cash flow to survive.  
+ 
+The strength of the East Coast process, therefore, would appear to be in the quick resolution 
+of small claims. Its major weakness lies in the lack of procedural justice it affords, rendering  
+it an unsuitable form of dispute resolution for lager and/or complex claims. The shortcomings 
+of the East Coast process, however, may be said to be where the strengths of the West 
+Coast process lie. In affording greater respect to procedural justice and parties‟ freedom of 
+contract, the West Coast model is more suited to producing adjudication outcomes which the 
+disputing parties perceive as accurate and reliable especially where high-value and complex 
+                                               
+37 For a detailed analysis of the types of construction work covered by the various Acts, see Coggins, Fenwick 
+Elliott and Bell (2010). 
+38 The analysis of data from Queensland and WA carried out in section 7.1 above would seem to suggest 
+indicate between $450-$800 cheaper. 
+
+ 
+Australasian Journal of Construction Economics and Building 
+ 
+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
+proposal for a dual process of adjudication based upon size of progress payment claim’, Australasian Journal of 
+Construction Economics and Building, 11 (2) 34-59  
+57 
+claims are involved; a requirement which the Department of Services, Technology & 
+Administration (NSW) (2010: Part 1) viewed as essential in adjudication scheme 
+performance. Further, it is suggested that adjudication outcomes which are perceived as 
+more accurate and reliable will lead to far less challenges of adjudicators‟ determinations 
+than are currently being seen in the NSW courts. 
+ 
+The present disparity which exists in Australian construction industry payment legislation 
+may be turned to Australia‟s advantage if there can be consensus reached between the 
+various jurisdictions as to how to combine the strengths of the East and West Coast models 
+into a single harmonised model. It is suggested that the consideration of a dual process 
+based upon progress payment claim size as advocated in this paper provides, at least, a 
+starting point for agreement upon such a unified model. 
+ 
+References 
+Allred, K. G. (2005) „Relationship Dynamics in Disputes‟, in The Handbook of Dispute 
+Resolution, eds M.L. Moffitt, and R.C. Bordone, Jossey-Bass, San Francisco, 83-98 
+Aronson, M., Dyer, B. and Groves, M. (2004) Judicial Review of Administrative Action, 3rd 
+edition, Thomson Lawbook Co., Sydney, NSW 
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+Accounts, 
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+<http://www.bcipa.qld.gov.au/SiteCollectionDocuments/Fact%20Sheets/OverallStatistics 
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+Coggins, J (2011) ‘From disparity to harmonisation of construction industry payment legislation in Australia: a 
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+58 
+Building and Construction Payments Agency (2011) BCIPA Report Month – May 2011, 
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+Building Services Authority (Qld) (2010) Building and Construction Industry Payments Act 
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+Coggins, J., Fenwick Elliott, R., and Bell, M. (2010) „Towards Harmonisation of Construction 
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+Cole, T.R.H. (2003) „Final Report of the Royal Commission into the Building and 
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+<http://www.buildingcommission.wa.gov.au/bid/Annual_Reports_BID.aspx 
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+discussion-paper> 
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+ 
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+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+_________________ 
+_________________ 
+1 
+ 
+Cite as: 609 U. S. ____ (2026) 
+Per Curiam 
+SUPREME COURT OF THE UNITED STATES 
+No. 26A203 
+NATIONAL PARK SERVICE, ET AL. v. NATIONAL 
+TRUST FOR HISTORIC PRESERVATION IN THE 
+UNITED STATES 
+ON APPLICATION FOR STAY
+ [August 31, 2026]
+ PER CURIAM. 
+In October 2025, the federal government started a project 
+to replace the East Wing of the White House.  The first 
+phase involved the demolition of the existing East Wing, 
+something the government completed in December 2025.
+The next phase, currently ongoing, involves the construc­
+tion of a new East Wing, including a below-ground military 
+installation and an above-ground ballroom.
+The National Trust for Historic Preservation in the 
+United States (Trust) filed a lawsuit in federal district court
+challenging various aspects of the project.  As part of its 
+suit, the Trust filed a motion on March 5, 2026, seeking a
+preliminary injunction. The injunction the Trust sought fo­
+cused not on the already-completed demolition of the old 
+East Wing but on halting the ongoing construction of a new 
+one. 
+On March 31, 2026, the district court granted the Trust’s
+motion and issued a preliminary injunction. As later clari­
+fied, the injunction essentially permitted the government to
+continue work on the new below-ground military installa­
+tion but enjoined any further construction above ground, 
+except as “strictly necessary” to protect the White House, 
+the President, and his staff. App. to Application 231a– 
+233a. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+Per Curiam 
+On April 17, 2026, the United States Court of Appeals for 
+the District of Columbia Circuit stayed the district court’s
+injunction, effectively allowing construction to proceed, 
+while it considered the government’s appeal.  On August 7, 
+2026, the court of appeals resolved that appeal and upheld 
+the district court’s injunction. At the same time, the court 
+indicated that its existing stay would expire on August 21,
+2026, and the district court’s injunction would thus take ef­
+fect. 
+Confronted with an imminent order requiring it to sub­
+stantially halt its ongoing construction activities, the gov­
+ernment filed a motion in this Court seeking a stay of the 
+district court’s injunction pending a forthcoming petition
+for a writ of certiorari and any further proceedings in this
+Court. Application 1.  THE CHIEF JUSTICE issued an admin­
+istrative stay to facilitate review of the government’s appli­
+cation and referred the matter to the Court. 
+We grant the requested stay.  The government has estab­
+lished that it is likely to succeed on the merits of a signifi­
+cant legal question, that it would likely suffer irreparable 
+harm without a stay, and that the balance of equities tips 
+in its favor. 
+I 
+Beginning with the merits, the government is likely to 
+prevail in showing that the Trust lacks standing to chal­
+lenge the East Wing project.  To secure standing to sue in 
+federal court consistent with Article III of the Constitution, 
+a plaintiff must establish that it has suffered an “injury in
+fact”—that is, the “invasion of a legally protected interest.” 
+Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (in­
+ternal quotation marks omitted). Further, the plaintiff
+must demonstrate that its injury is “(a) concrete and par­
+ticularized . . . and (b) actual or imminent.”  Ibid. (internal
+quotation marks omitted); see also TransUnion LLC v. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 609 U. S. ____ (2026) 
+Per Curiam 
+Ramirez, 594 U. S. 413, 423 (2021) (“injury in fact” must be
+“concrete, particularized, and actual or imminent”). 
+To establish its standing to bring this case, the Trust re­
+lies on a declaration from a single of its members, Alison K.
+Hoagland.  Hoagland says that she lives in Washington, 
+D. C., and expects to visit the neighborhood around the
+White House “about once a month.” App. to Application 
+73a–74a. She asserts that having to view the finished ball­
+room the government is constructing would cause her to
+suffer “injuries” to her “aesthetic, cultural, and historical 
+interests” because she finds the “scale,” “height,” and 
+“massing” of the government’s design distasteful. Id., at 
+75a. On the strength of that declaration, the Trust con­
+tends, it has Article III standing to challenge the East Wing 
+project.
+This Court has not found standing in circumstances like 
+these before. To the contrary, we have repeatedly held that
+mere offense, disagreement, or distaste does not qualify as 
+a concrete and particularized injury under Article III. As 
+we have put it, “this Court has long made clear that distress
+at or disagreement with the activities of others is not a basis
+under Article III for a plaintiff to bring a federal lawsuit.” 
+FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 
+390, n. 3 (2024).  Instead, to secure standing a plaintiff must 
+identify some concrete and particularized injury “other
+than the psychological consequence presumably produced
+by observation of conduct with which one disagrees.” Valley 
+Forge Christian College v. Americans United for Separation 
+of Church and State, Inc., 454 U. S. 464, 485 (1982); see also 
+Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 
+208, 227 (1974) (rejecting “the idea that generalized citizen 
+interest is a sufficient basis for standing”); United States v. 
+Richardson, 418 U. S. 166, 177 (1974) (“genuine interest” 
+alone cannot satisfy the “particular concrete injury” re­
+quirement). 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+4 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+Per Curiam 
+Nor is it clear what would remain of Article III’s concrete-
+and-particularized injury requirement if we were to extend
+our case law in the manner the Trust now suggests.  Per­
+haps nearly any government action or project offends some­
+one’s sensibilities.  And adopting the Trust’s “unprece­
+dented and limitless” view that offense alone suffices to 
+establish a concrete and particularized injury would seem­
+ingly usher in a world where “virtually every citizen had 
+standing to challenge virtually every government action
+that they do not like—an approach to standing that this
+Court has consistently rejected as flatly inconsistent with 
+Article III.” Alliance, 602 U. S., at 391–392.  Absent some 
+considerable revision to our existing standing doctrine, 
+then, the government is likely to succeed on the merits.
+To be sure, and as the Trust observes, we have found 
+standing in certain environmental cases where the plain­
+tiff ’s injuries involved more than mere offense.  See Oppo­
+sition to Application 25; post, at 3–6 (ROBERTS, C. J., dis­
+senting). So, for example, in Friends of the Earth, Inc. v. 
+Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 
+(2000), we found standing where the plaintiffs alleged that 
+“harmful pollutants” the defendant discharged into a river
+forced them to abandon “fish[ing], camp[ing], swim[ming],
+and picnic[king] in and near the river” as they had in the 
+past. Id., at 181–183. And in Summers v. Earth Island In­
+stitute, 555 U. S. 488 (2009), we noted the government’s
+concession that one member of the plaintiff organization 
+previously had standing to sue for injuries to his “recrea­
+tional interests” in a national forest before ultimately deny­
+ing standing because a partial settlement left no member 
+with a concrete and imminent injury. Id., at 494–496. 
+None of this, however, helps the Trust because none of it 
+unseats this Court’s long-held view that Article III standing 
+is unavailable where, as here, the only injury a plaintiff as­
+serts stems from offense, disagreement, or distaste.  Alli­
+ance, 602 U. S., at 390, n. 3. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 609 U. S. ____ (2026) 
+Per Curiam 
+Separately, the Trust points to Lujan’s statement that 
+the “desire to . . . observe an animal species, even for purely 
+esthetic purposes,” can constitute “a cognizable interest for 
+purpose of standing.”  504 U. S., at 562–563; see also Sum­
+mers, 555 U. S., at 494 (similar). And the Trust reasons 
+that, if the desire to view a “particular crocodile” qualifies
+as a cognizable interest for purposes of Article III standing,
+Hoagland’s desire to view a new East Wing characterized 
+by more “stately simplicity” than the government proposes 
+must as well.  See post, at 3 (opinion of ROBERTS, C. J.) (in­
+ternal quotation marks omitted); Opposition to Application 
+25–26. But none of this helps the Trust either. Proceeding 
+to reject the plaintiffs’ claim to standing, Lujan stressed 
+that a cognizable interest is a necessary component of 
+standing but not a sufficient one: Article III “requires more
+than an injury to a cognizable interest.” 504 U. S., at 563 
+(internal quotation marks omitted). Among other things, a
+plaintiff must also show that its claimed injury is “concrete 
+and particularized.”  Id., at 560; see also TransUnion LLC, 
+594 U. S., at 423.  And, again, as our precedents have re­
+peatedly held, a plaintiff ’s “distress at or disagreement
+with” a defendant’s actions does not clear that bar.  Alli­
+ance, 602 U. S., at 390, n. 3. 
+Finally, the Trust replies that, even if this rule routinely 
+applies in cases brought by ordinary citizens and taxpayers,
+it should not apply in this case.  It should not, the Trust 
+argues, because Hoagland is “not just any person,” post, at 
+6 (opinion of ROBERTS, C. J.), but someone who possesses
+“focused and substantiated” expertise in historic architec­
+ture, post, at 3; see also Opposition to Application 26. Our 
+standing rules, however, contain no such special carveout. 
+Article III standing, we have consistently held, “is not 
+measured by the intensity of the litigant’s interest,” Valley 
+Forge Christian College, 454 U. S., at 486, or by a litigant’s
+“special interest in the subject,” Lujan, 504 U. S., at 563 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+6 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+Per Curiam 
+(quoting Sierra Club v. Morton, 405 U. S. 727, 739 (1972); 
+brackets omitted). 
+II 
+The government has also established that it will likely 
+suffer irreparable harm from the district court’s injunction 
+and that the balance of the equities tips in its favor. 
+Start with this.  The district court likely exceeded its Ar­
+ticle III authority to enjoin the activities of a coordinate
+branch of government. Cf. Trump v. CASA, Inc., 606 U. S. 
+831, 859 (2025). And courts may not exceed the bounds of 
+their lawful authority simply because they may think an­
+other branch has exceeded its own.  See Lujan, 504 U. S., 
+at 560 (Article III’s standing requirements help define
+“those disputes which are appropriately resolved through 
+the judicial process” rather than in the political arena (in­
+ternal quotation marks omitted)); Alliance, 602 U. S., at 
+379 (federal courts do not “operate as an open forum for cit­
+izens to press general complaints about the way in which
+government goes about its business” (internal quotation 
+marks omitted)).
+Nor is that all.  The government has also presented dec­
+larations from the Director of National Intelligence, the Di­
+rector of the Central Intelligence Agency, the Director of the 
+Federal Bureau of Investigation, the Director of the United
+States Secret Service, and the Secretary of State, the Sec­
+retary of Homeland Security, and the Secretary of the 
+Army, among others, attesting to national security and
+other harms that would likely arise from enjoining a “sin­
+gle, coherent” project that cannot be readily cleaved into 
+distinct below- and above-ground pieces.  See, e.g., App. to
+Application 229a, 246a–247a, 397a–398a, 426a–429a, 
+431a–433a, 437a–439a. The Secretary of the Army, for ex­
+ample, represents that “[t]he height and mass” of the 
+planned above-ground ballroom are “crucial” to shield the 
+planned underground military installation “from kinetic 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+7 
+ 
+Cite as: 609 U. S. ____ (2026) 
+Per Curiam 
+impacts,” and that, without such height and mass, “engi­
+neers would need to dig impractically deep.” Id., at 247a. 
+Of course, the district court’s injunction does not com­
+pletely preclude above-ground construction and might be
+read to afford the government sufficient leeway to revise its
+construction plans and install some form of protective cover
+over the below-ground military installation. See id., at 
+232a–233a (permitting above-ground construction “strictly 
+necessary” for security purposes); see also post, at 6, n.* 
+(opinion of ROBERTS, C. J.).  But none of that calls into ques­
+tion the government’s declarations attesting that construct­
+ing something approximating the height and mass of the in­
+tended above-ground ballroom is “crucial” to the security of
+the below-ground military installation, App. to Application 
+247a; that every day during which construction is delayed 
+impairs the Secret Service’s “protective operations,” id., at 
+229a, 428a–429a; that the contemplated ballroom would 
+enhance security for Presidents and their visitors who in 
+the past have had to meet in soft tents or offsite when gath­
+ering in large numbers, id., at 116a–117a, 397a–398a, 420a; 
+that a prolonged construction period increases the risk of 
+foreign actors “gathering intelligence on” the project, id., at 
+437a–439a; or that freezing construction would risk signif­
+icant “construction-related problems” ranging from con­
+cerns about how to secure the structural integrity of a par­
+tially completed superstructure to the possibility of having
+to delay the installation of infrastructure “required to make 
+below-ground facilities operational,” id., at 443a, 445a– 
+446a. 
+Meanwhile, on the other side of the ledger and against 
+these harms, the only harm the Trust claims is the offense
+one of its members will suffer from having to view a struc­
+ture of the “scale,” “height,” and “massing” the government
+intends. Id., at 75a. These harms and equities are not
+nearly in equipoise. See Winter v. Natural Resources De­
+fense Council, Inc., 555 U. S. 7, 25–26 (2008) (vacating 
+
+ 
+ 
+ 
+ 
+ 
+  
+  
+ 
+ 
+ 
+ 
+ 
+ 
+8 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+Per Curiam 
+preliminary injunction where the plaintiffs’ “ecological, sci­
+entific, and recreational interests” were “plainly out­
+weigh[ed]” by the Navy’s operational needs). 
+*
+*
+* 
+Today, we do not pass upon the legality of the govern­
+ment’s East Wing project.  We conclude only that, based on 
+the submissions before us, the government is likely to pre­
+vail in showing that the Trust lacks Article III standing to 
+challenge the project in federal court and that the remain­
+ing stay factors favor relief.  Accordingly, the application for 
+stay presented to THE CHIEF JUSTICE and by him referred 
+to the Court is granted.  The injunction entered by the 
+United States District Court for the District of Columbia in 
+case No. 1:25–cv–04316 is stayed pending the filing and dis­
+position of the government’s petition for a writ of certiorari,
+if such writ is timely sought.  Should certiorari be denied, 
+this stay shall terminate automatically.  In the event certi­
+orari is granted, the stay shall terminate upon the sending 
+down of the judgment of this Court. 
+It is so ordered. 
+
+ 
+Cite as: 609 U. S. ____ (2026) 
+1 
+ 
+ROBERTS, C. J., dissenting 
+ 
+SUPREME COURT OF THE UNITED STATES 
+_________________ 
+No. 26A203 
+_________________ 
+NATIONAL PARK SERVICE, ET AL. v. NATIONAL 
+TRUST FOR HISTORIC PRESERVATION IN THE 
+UNITED STATES 
+ON APPLICATION FOR STAY 
+ [August 31, 2026] 
+ CHIEF 
+JUSTICE 
+ROBERTS, 
+with 
+whom 
+JUSTICE 
+SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON join, 
+dissenting. 
+ The President ordered the demolition of the East Wing of 
+the White House to make way for a new, privately funded 
+state ballroom in its place.  Construction of the ballroom 
+has proceeded apace for the better part of a year. 
+ That construction is likely unlawful.  Pursuant to its ple-
+nary constitutional authority over the District of Columbia 
+and federal property, Congress has explicitly prohibited the 
+construction of any “building or structure . . . on any reser-
+vation, park, or public grounds of the Federal Government 
+in the District of Columbia without express authority of 
+Congress.”  40 U. S. C. §8106.  The ballroom is a building or 
+structure being erected on federal park grounds—Presi-
+dent’s Park—in the District of Columbia.  Yet Congress has 
+not passed any law resembling “express authority” for the 
+Executive’s construction of it. 
+ The Government points to two statutory provisions in 
+support of the ballroom project.  The first authorizes Con-
+gress to appropriate funds for “the care, maintenance, re-
+pair, alteration, refurnishing, improvement, air-condition-
+ing, heating, and lighting (including electric power and 
+fixtures) of the Executive Residence at the White House.”  3 
+U. S. C. §105(d)(1).  This fiscal year Congress appropriated 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+ROBERTS, C. J., dissenting 
+$2,475,000 pursuant to section 105(d)(1) “for required
+maintenance, resolution of safety and health issues, and 
+continued preventative maintenance” at the Executive Res­
+idence. Consolidated Appropriations Act, 2026, Pub. L.
+119–75, 140 Stat. 451.  That appropriation of a couple mil­
+lion dollars for ordinary Executive Residence maintenance 
+and repairs likely does not authorize the President to use 
+hundreds of millions of dollars in private donations to tear 
+down the East Wing and construct a ballroom in its stead. 
+The second provision tasks the National Park Service
+with managing national park land, such as President’s
+Park, in a manner that “conserve[s]” the “historic objects”
+on that land.  54 U. S. C. §100101(a).  This is likely not ex­
+press authorization to raze the East Wing and replace it
+with a ballroom. 
+Given this apparent absence of statutory authority, the
+District Court for the District of Columbia enjoined the ball­
+room’s continued construction in response to a lawsuit filed
+by the National Trust for Historic Preservation in the 
+United States. The Court of Appeals affirmed.  Today this
+Court grants the Government’s request to stay that injunc­
+tion and allow construction of the ballroom to go forward—
+not because that construction is legal, but on the ground 
+that the Trust likely lacks Article III standing to challenge 
+it. 
+To have standing to sue as the representative of its mem­
+bers, an organization such as the Trust must show, among 
+other things, that one of its members would have standing 
+to sue in her own right.  See Hunt v. Washington State Ap­
+ple Advertising Comm’n, 432 U. S. 333, 342–343 (1977). 
+The Trust points to executive committee member Alison K. 
+Hoagland’s asserted aesthetic injury from the ballroom’s
+construction to satisfy that requirement. 
+To serve as the basis for her standing, Hoagland’s aes­
+thetic injury must be “concrete” and “particularized” to 
+her—“real, and not abstract.”  Spokeo, Inc. v. Robins, 578 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+ 
+3 
+ 
+Cite as: 609 U. S. ____ (2026) 
+ROBERTS, C. J., dissenting 
+U. S. 330, 340 (2016) (internal quotation marks omitted). 
+Separating the concrete and particularized from the ab­
+stract can be difficult in this context.  Our precedents, how­
+ever, have noted that an injury to a plaintiff ’s “mere es­
+thetic 
+interests” 
+can 
+qualify 
+as 
+“concrete 
+and 
+particularized.”  Summers v. Earth Island Institute, 555 
+U. S. 488, 494 (2009).  And we said in one of our leading 
+standing precedents that it was “[o]f course” true that a “de­
+sire to . . . observe an animal species” like a particular croc­
+odile, “even for purely esthetic purposes,” was “undeniably 
+a cognizable interest for purpose of standing.” Lujan v. De­
+fenders of Wildlife, 504 U. S. 555, 562–563 (1992). 
+Given the distinctive nature of the White House and Hoa­
+gland’s focused and substantiated interest in viewing it in
+its traditional form, her aesthetic injury from the construc­
+tion of the ballroom is concrete and particularized. 
+The White House is an iconic American building whose
+symbolism and history are wrapped up in its architecture.
+As President Theodore Roosevelt once remarked while 
+thanking Congress for expressly appropriating funds for 
+the construction of the East and West Wings: “The stately 
+simplicity of [the White House’s] architecture is an expres­
+sion of the character of the period in which it was built, and 
+is in accord with the purposes it was designed to serve.  It 
+is a good thing to preserve such buildings as historic monu­
+ments which keep alive our sense of continuity with the Na­
+tion’s past.” 36 Cong. Rec. 12 (1902) (Roosevelt’s second an­
+nual message). 
+Hoagland, meanwhile, is deeply committed to the preser­
+vation of such historic American buildings, as evidenced by 
+her decades-long membership in the Trust, leadership role 
+in the organization, academic work as a professor of history
+and historic preservation, volunteer work providing presen­
+tations on the District of Columbia’s historic architecture, 
+and authorship of works on historic American architecture. 
+Given this commitment to the preservation of historic 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+  
+ 
+4 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+ROBERTS, C. J., dissenting 
+buildings, Hoagland enjoys viewing and appreciating such
+buildings in person.  As a Capitol Hill resident, Hoagland
+regularly visits the White House to take in the historic 
+building’s beauty and to appreciate its symbolism.  By over­
+shadowing the traditional White House, Hoagland ex­
+plains, the new ballroom will detract from the building’s
+message of republican simplicity and thereby worsen her 
+viewing experience.
+Hoagland’s injury suffices for standing.  A historic preser­
+vationist such as Hoagland can be aesthetically injured in 
+a concrete, particularized way by the transformation of a 
+historic building that she frequently enjoys, just as an en­
+vironmentalist can sustain a concrete, particularized aes­
+thetic injury from the extinction of a particular animal or 
+the transformation of a particular forest or river that he 
+regularly enjoys. See, e.g., Defenders of Wildlife, 504 U. S., 
+at 562–563; Friends of the Earth, Inc. v. Laidlaw Environ­
+mental Services (TOC), Inc., 528 U. S. 167, 180–183 (2000).
+With the Court’s rejection of Hoagland’s standing today,
+however, it now is the case that “I want to look at a croco­
+dile” can adequately answer the ever critical “what’s it to
+you?” question of Article III standing, while “I want to look 
+at the White House” cannot—no matter how distinctive the 
+particular viewer’s interest in looking at it may be. 
+The Court would distinguish our environmental aesthetic
+injury cases on the ground that the plaintiffs there alleged 
+“more than mere offense.”  Ante, at 4.  But so has Hoagland.
+She has not simply alleged “distress at or disagreement 
+with” the ballroom’s construction. FDA v. Alliance for Hip­
+pocratic Medicine, 602 U. S. 367, 390, n. 3 (2024).  She in­
+stead has alleged that the ballroom’s construction would 
+damage what for her is a concrete and particularized inter­
+est in physically viewing, appreciating, and studying a his­
+toric building as it is.
+ Having reframed Hoagland’s aesthetic injury as “mere of­
+fense” at the ballroom’s construction, the Court reasons 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+ 
+Cite as: 609 U. S. ____ (2026) 
+ROBERTS, C. J., dissenting 
+that very little would remain of Article III’s concrete and 
+particularized injury requirement were we to recognize 
+standing here. While it is true that nearly every govern­
+ment action will offend someone somehow, see ante, at 4, 
+not every government action will interfere in a particular 
+way with someone’s documented interest in viewing a par­
+ticular historic building.  The Court’s string cite to prece­
+dents rejecting the standing of taxpayers who challenged 
+federal policies with which they disagreed is inapposite for 
+the same reason. See ante, at 3 (citing Valley Forge Chris­
+tian College v. Americans United for Separation of Church 
+and State, Inc., 454 U. S. 464, 485 (1982); Schlesinger v. Re­
+servists Comm. to Stop the War, 418 U. S. 208, 227 (1974); 
+United States v. Richardson, 418 U. S. 166, 177 (1974)). 
+Hoagland is not simply some taxpayer who fancies the 
+thought of the traditional White House unadorned by a
+ballroom. 
+The Court also observes that even if viewing something 
+for “purely esthetic purposes” is a “cognizable interest” for
+standing, having such an interest is not sufficient to estab­
+lish standing. See ante, at 5; Defenders of Wildlife, 504 
+U. S., at 562. The claimed injury still must be “concrete and 
+particularized.”  Ante, at 5. But we have said that “[t]o es­
+tablish the concrete and particularized injury that standing 
+requires,” a plaintiff ’s demonstration that his “mere es­
+thetic interests” are affected “will suffice.” Summers, 555 
+U. S., at 494. 
+And if a standalone concrete and particularized aesthetic
+injury can be recast as mere offense, what made the envi­
+ronmental plaintiffs with standing in our prior cases differ­
+ent from Hoagland? What saved their aesthetic injuries
+from being classed as mere distaste for the actions of gov­
+ernment or private industry?  In Laidlaw, the plaintiffs had 
+standing to fight the pollution of a river in which they had
+“aesthetic and recreational” interests.  528 U. S., at 183.  On 
+the Court’s retelling, it is critical that those plaintiffs did 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+  
+  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+6 
+NATIONAL PARK SERVICE v. NATIONAL TRUST FOR 
+HISTORIC PRESERVATION IN THE UNITED STATES 
+ROBERTS, C. J., dissenting 
+not only like to look at the river’s “natural beauty,” but also 
+liked to use it by fishing and swimming in it and by hiking
+and camping alongside it. Id., at 180–183; see ante, at 4. 
+Certainly one may enjoy a river not just by looking at it but 
+also by swimming in it and hiking along it.  But the princi­
+pal way a person enjoys a historic building or object is by
+looking at it. The distinction between Hoagland and the
+environmental plaintiffs does not hold up.* 
+*
+*
+* 
+The White House is not just any building, and—when it
+comes to historic preservation—Hoagland is not just any 
+person. In failing to appreciate as much, the Court miscon­
+ceives the plaintiff ’s injury, allowing the Executive’s likely 
+infringement of the Legislature’s power of the purse and
+authority to regulate federal property in the District of Co­
+lumbia to continue. Today’s decision is no victory for the 
+separation of powers.
+Winston Churchill once remarked that “[w]e shape our
+buildings, and afterwards our buildings shape us.”  On­
+wards to Victory: War Speeches by the Right Hon. Winston
+S. Churchill, C.H., M.P. 317 (1944).  All the more reason to 
+ensure that those responsible follow the rules in deciding
+what to tear down and what to build up at the People’s
+House. 
+I respectfully dissent. 
+—————— 
+*With respect to the Court’s reference to national security concerns, 
+the Government informed the District Court that its construction work 
+on below-ground secure facilities was “driven by national security con­
+cerns independent of the above-grade construction” of the ballroom. 
+No. 25–cv–4316, ECF Doc. 30, p. 48. And the District Court’s injunction 
+prohibits only the building of a ballroom—not the building of below-
+ground national security facilities or above-ground work necessary to 
+protect them. 
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@@ -0,0 +1,646 @@
+PRELIMINARY PRINT 
+Volume 593 U. S. Part 1 
+Pages 83–97 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+April 22, 2021 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2020 
+83 
+Syllabus 
+CARR et al. v. SAUL, COMMISSIONER OF SOCIAL 
+SECURITY 
+certiorari to the united states court of appeals for 
+the tenth circuit 
+No. 19–1442. Argued March 3, 2021—Decided April 22, 2021* 
+Petitioners are six individuals whose applications for disability benefts 
+were denied by the Social Security Administration (SSA). They each 
+unsuccessfully challenged their respective adverse beneft determina­
+tion in a hearing before an SSA administrative law judge (ALJ). The 
+SSA Appeals Council denied discretionary review in each case. There­
+after, this Court decided Lucia v. SEC, 585 U. S. –––, which held that 
+the appointment of Securities and Exchange Commission ALJs by lower 
+level staff violated the Constitution's Appointments Clause. Because 
+the SSA ALJs who denied petitioners' claims were also appointed by 
+lower level staff, petitioners argued in federal court that they were en­
+titled to a fresh administrative review by constitutionally appointed 
+ALJs. In each case, the Court of Appeals held that petitioners could 
+not obtain judicial review of their Appointments Clause claims because 
+they failed to raise those challenges in their administrative proceedings. 
+Held: The Courts of Appeals erred in imposing an issue-exhaustion re­
+quirement on petitioners' Appointments Clause claims. Pp. 88–96. 
+(a) Administrative review schemes commonly require parties to give 
+the agency an opportunity to address an issue before seeking judicial 
+review of that question. Such administrative issue-exhaustion require­
+ments are typically creatures of statute or regulation. But where, as 
+here, no statute or regulation imposes an issue-exhaustion requirement, 
+courts decide whether to require issue exhaustion based on “an analogy 
+to the rule that appellate courts will not consider arguments not raised 
+before trial courts.” Sims v. Apfel, 530 U. S. 103, 108–109. “[T]he de­
+sirability of a court imposing a requirement of issue exhaustion depends 
+on the degree to which the analogy to normal adversarial litigation ap­
+plies in a particular administrative proceeding.” Id., at 109. In Sims, 
+which declined to apply an issue-exhaustion requirement to SSA Ap­
+peals Council proceedings, the Court explained that “the rationale for 
+requiring issue exhaustion is at its greatest” when “the parties are ex­
+pected to develop the issues in an adversarial administrative proceed­
+*Together with No. 20–105, Davis et al. v. Saul, Commissioner of So­
+cial Security, on certiorari to the United States Court of Appeals for the 
+Eighth Circuit. 
+
+Page Proof Pending Publication
+84 
+CARR v. SAUL 
+Syllabus 
+ing,” but is “much weaker” when “an administrative proceeding is not 
+adversarial.” Id., at 110. Although Sims dealt with administrative re­
+view before the SSA Appeals Council, much of the opinion's rationale 
+applies equally to SSA ALJ proceedings. Pp. 88–91. 
+(b) Even assuming that ALJ proceedings are comparatively more 
+adversarial than Appeals Council proceedings, the question remains 
+whether the ALJ proceedings here were adversarial enough to support 
+the “analogy to judicial proceedings” that undergirds judicially created 
+issue-exhaustion requirements. Sims, 530 U. S., at 112 (plurality opin­
+ion). Pp. 91–96. 
+(1) In the specifc context of petitioners' Appointments Clause chal­
+lenges, two considerations tip the scales decidedly against imposing an 
+issue-exhaustion requirement. First, agency adjudications are gener­
+ally ill suited to address structural constitutional challenges, which usu­
+ally fall outside the adjudicators' areas of technical expertise. See, e. g., 
+Free Enterprise Fund v. Public Company Accounting Oversight Bd., 
+561 U. S. 477, 491. Second, this Court has consistently recognized a 
+futility exception to exhaustion requirements. See, e. g., Bethesda Hos­
+pital Assn. v. Bowen, 485 U. S. 399, 405–406. Both considerations apply 
+fully here: Petitioners assert purely constitutional claims about which 
+SSA ALJs have no special expertise and for which they can provide no 
+relief. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 
+distinguished. Pp. 92–95. 
+(2) The Commissioner's contention that petitioners cannot obtain 
+new hearings because they did not “timely challenge” their adjudicators' 
+appointments presumes what the Commissioner has failed to prove: that 
+petitioners' challenges are, in fact, untimely. The Commissioner's reli­
+ance on Ryder v. United States, 515 U. S. 177, and Lucia, 585 U. S. –––, 
+is misplaced, as neither decision had occasion to opine on what would 
+constitute a “timely” objection in an administrative review scheme like 
+the SSA's. Pp. 95–96. 
+961 F. 3d 1267 and 963 F. 3d 790, reversed and remanded. 
+Sotomayor, J., delivered the opinion of the Court, in which Roberts, 
+C. J., and Alito, Kagan, and Kavanaugh, JJ., joined, in which Thomas, 
+Gorsuch, and Barrett, JJ., joined as to Parts I, II–A, and II–B–2, and 
+in which Breyer, J., joined as to Parts I, II–B–1, and II–B–2. Thomas, 
+J., fled an opinion concurring in part and concurring in the judgment, in 
+which Gorsuch and Barrett, JJ., joined, post, p. 96. Breyer, J., fled 
+an opinion concurring in part and concurring in the judgment, post, p. 97. 
+Sarah M. Harris argued the cause for petitioners in 
+No. 19–1442. With her on the briefs were Lisa S. Blatt and 
+Charles L. McCloud. Kannon K. Shanmugam fled a brief 
+
+Page Proof Pending Publication
+Cite as: 593 U. S. 83 (2021) 
+85 
+Opinion of the Court 
+for petitioners in No. 20–105. With him on the briefs were 
+William T. Marks, Joel S. Johnson, and Mahesha P. 
+Subbaraman. 
+Austin L. Raynor argued the cause for respondent in both 
+cases. With him on the brief were Acting Solicitor General 
+Prelogar, Acting Assistant Attorney General Boynton, Dep­
+uty Solicitor General Kneedler, Vivek Suri, Mark B. Stern, 
+Joshua M. Salzman, and Daniel Aguilar.† 
+Justice Sotomayor delivered the opinion of the Court. 
+When the Social Security Administration (SSA) denies a 
+claim for disability benefts, a claimant who wishes to contest 
+that decision in federal court must frst seek a hearing before 
+an administrative law judge (ALJ). The petitioners here 
+did just that: They each unsuccessfully challenged an adverse 
+benefts determination in ALJ proceedings, and they now 
+ask for judicial review. Specifcally, petitioners argue that 
+they are entitled to new hearings before different ALJs 
+because the ALJs who originally heard their cases were 
+not properly appointed under the Appointments Clause of 
+the U. S. Constitution. The question for the Court is 
+whether petitioners forfeited their Appointments Clause 
+challenges by failing to make them frst to their respective 
+ALJs. The Court holds that petitioners did not forfeit 
+their claims. 
+†Briefs of amici curiae urging reversal in both cases were fled for the 
+Institute for Justice by Robert E. Johnson and Anthony Sanders; for the 
+National Association of Disability Representatives by Chanakya A. Sethi 
+and Rakesh N. Kilaru; for the National Organization of Social Security 
+Claimants Representatives et al. by Carolyn A. Kubitschek, Barbara R. 
+Silverstone, Barbara Jones, Thomas D. Sutton, and Robert E. Rains; 
+for the New Civil Liberties Alliance et al. by Jared McClain, Richard 
+Samp, and Ilya Shapiro; for the Pacifc Legal Foundation by Brian T. 
+Hodges and Oliver J. Dunford; and for Social Security Scholars et al. by 
+Jon C. Dubin. 
+Alan B. Morrison and Richard J. Pierce, Jr., fled a brief in both cases 
+for the Collective of Social Security Administration Administrative Law 
+Judges. 
+
+86 
+CARR v. SAUL 
+Opinion of the Court 
+I 
+The six petitioners in these consolidated cases each applied 
+for disability benefts between 2013 and 2015.1 
+After their 
+applications were denied, petitioners followed the prescribed 
+steps for seeking administrative review. They sought re­
+consideration of the agency's initial determination, received 
+a hearing before an ALJ, and requested review by the SSA's 
+Appeals Council. See 20 CFR § 404.900(a). Petitioners 
+were unsuccessful at every stage, concluding with the Ap­
+peals Council, which denied discretionary review. 
+This Court then held in Lucia v. SEC, 585 U. S. ––– (2018), 
+that ALJs within the Securities and Exchange Commission 
+(SEC) had been unconstitutionally appointed. Under the 
+Appointments Clause, only the President, “Courts of Law,” 
+or “Heads of Departments” may appoint “Offcers of the 
+United States.” Art. II, § 2, cl. 2; see Lucia, 585 U. S., 
+at –––. The Lucia Court determined that SEC ALJs were 
+“Offcers” rather than mere employees because they held “a 
+continuing offce established by law,” exercised “ `signifcant 
+discretion' when carrying out . . . `important functions,' ” 
+and often had the last word in SEC proceedings. Id., 
+at ––– – –––. Consequently, the appointment of SEC ALJs 
+by SEC staff violated the Constitution. Id., at –––, –––. 
+Like the SEC ALJs at issue in Lucia, SSA ALJs had been 
+selected by lower level staff rather than appointed by the 
+head of the agency. On July 16, 2018, a few weeks after 
+Lucia was decided, the SSA's Acting Commissioner pre­
+emptively “address[ed] any Appointments Clause questions 
+involving Social Security claims” by “ratif[ying] the appoint­
+ments” of all SSA ALJs and “approv[ing] those appointments 
+1 The Social Security Act provides disability benefts under two pro­
+grams, Title II and Title XVI. Some petitioners sought benefts under 
+Title II only, some under Title XVI only, and some under both. The dis­
+tinctions between the two programs are irrelevant for present purposes. 
+For ease of reference, this opinion cites only to the regulations governing 
+Title II, found at 20 CFR pt. 404 (2020). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 83 (2021) 
+87 
+Opinion of the Court 
+as her own.” 84 Fed. Reg. 9583 (2019). The following year, 
+the SSA issued a ruling stating that the Appeals Council 
+should, in response to timely requests for Appeals Council 
+review, vacate preratifcation ALJ decisions and provide 
+fresh review by a properly appointed adjudicator. Ibid. 
+That remedy was only available, however, to claimants who 
+had raised an Appointments Clause challenge in either their 
+ALJ or Appeals Council proceedings. Ibid. Claimants who 
+had not objected to the ALJs' appointments in their adminis­
+trative proceedings would receive no relief. See ibid. 
+Petitioners fell into this latter category. By the time the 
+SSA issued its ruling, their administrative proceedings had 
+concluded, and they were seeking review of the SSA's deci­
+sions in federal court. Following Lucia, each petitioner 
+asked the Federal District Court (or, in some cases, the Fed­
+eral Magistrate Judge) for a new hearing before a constitu­
+tionally appointed ALJ. The Commissioner did not dispute 
+that the ALJs who decided petitioners' cases were unconsti­
+tutionally appointed, but contended instead that petitioners 
+had forfeited their Appointments Clause challenges by fail­
+ing to raise them before the agency. 
+In three separate decisions (covering all six petitioners), 
+the U. S. Courts of Appeals for the Eighth and Tenth Cir­
+cuits adopted the Commissioner's forfeiture argument. In 
+those Circuits' view, petitioners could not obtain judicial re­
+view of their Appointments Clause claims because they had 
+not pressed those challenges in their administrative proceed­
+ings. 963 F. 3d 790, 793 (CA8 2020); 964 F. 3d 759, 763 (CA8 
+2020); Carr v. Commissioner, SSA, 961 F. 3d 1267, 1268 
+(CA10 2020). The Third, Fourth, and Sixth Circuits have all 
+held the opposite. In those Circuits, claimants may chal­
+lenge the constitutionality of an SSA ALJ's appointment for 
+the frst time in federal court. See Cirko v. Commissioner 
+of Social Security, 948 F. 3d 148, 152 (CA3 2020); Probst v. 
+Saul, 980 F. 3d 1015, 1020 (CA4 2020); Ramsey v. Commis­
+sioner of Social Security, 973 F. 3d 537, 546 (CA6 2020). 
+Page Proof Pending Publication
+
+88 
+CARR v. SAUL 
+Opinion of the Court 
+The Court granted certiorari to resolve this confict. 592 
+U. S. ––– (2020). 
+II 
+Administrative review schemes commonly require parties 
+to give the agency an opportunity to address an issue before 
+seeking judicial review of that question. The source of this 
+requirement (known as issue exhaustion) varies by agency.2 
+Typically, issue-exhaustion rules are creatures of statute or 
+regulation. Sims v. Apfel, 530 U. S. 103, 107–108 (2000); see 
+United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 
+33, 36, n. 6 (1952) (collecting statutes). Where statutes and 
+regulations are silent, however, courts decide whether to re­
+quire issue exhaustion based on “an analogy to the rule that 
+appellate courts will not consider arguments not raised be­
+fore trial courts.” Sims, 530 U. S., at 108–109. The Com­
+missioner concedes that no statute or regulation obligated 
+petitioners to raise their Appointments Clause challenges in 
+administrative proceedings. See Brief for Respondent 12, 
+35, n. 2; Tr. of Oral Arg. 39. Instead, the Commissioner asks 
+this Court to impose a judicially created issue-exhaustion re­
+quirement in these cases. 
+A 
+“[T]he desirability of a court imposing a requirement of 
+issue exhaustion depends on the degree to which the analogy 
+to normal adversarial litigation applies in a particular admin­
+istrative proceeding.” Sims, 530 U. S., at 109. In conduct­
+ing this inquiry, courts must take care not to “refexively 
+`assimilat[e] the relation of . . . administrative bodies and the 
+courts to the relationship between lower and upper courts.' ” 
+Id., at 110 (quoting FCC v. Pottsville Broadcasting Co., 309 
+2 Issue exhaustion should not be confused with exhaustion of administra­
+tive remedies. There is no dispute in these cases that petitioners ex­
+hausted their administrative remedies, meaning that they proceeded 
+through each step of the SSA's administrative review scheme and received 
+a “fnal decision” before seeking judicial review. See 42 U. S. C. § 405(g). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 83 (2021) 
+89 
+Opinion of the Court 
+U. S. 134, 144 (1940)). 
+Instead, “[t]he inquiry requires 
+careful examination of `the characteristics of the particular 
+administrative procedure provided.' ” 530 U. S., at 113 
+(O'Connor, J., concurring in part and concurring in judg­
+ment) (quoting McCarthy v. Madigan, 503 U. S. 140, 146 
+(1992)). The critical feature that distinguishes adversarial 
+proceedings from inquisitorial ones is whether claimants 
+bear the responsibility to develop issues for adjudicators' 
+consideration.3 
+With respect to the nature of the SSA proceedings at issue 
+here, our inquiry starts from the baseline set by Sims v. 
+Apfel. There, this Court held that issues not raised before 
+the Appeals Council (the fnal stage of administrative review 
+within the SSA) are nonetheless preserved for judicial re­
+view. In so holding, the Court explained that “the rationale 
+for requiring issue exhaustion is at its greatest” when “the 
+parties are expected to develop the issues in an adversarial 
+administrative proceeding,” but “the reasons for a court to 
+require issue exhaustion are much weaker” when “an admin­
+istrative proceeding is not adversarial.” 530 U. S., at 110. 
+The plurality went on to explain that “[t]he differences be­
+tween courts and agencies are nowhere more pronounced 
+3 The Commissioner invokes the “general rule,” recognized in cases such 
+as L. A. Tucker Truck Lines, that “orderly procedure and good adminis­
+tration require that objections to the proceedings of an administrative 
+agency be made while it has opportunity for correction in order to raise 
+issues reviewable by the courts.” United States v. L. A. Tucker Truck 
+Lines, Inc., 344 U. S. 33, 37 (1952); see also Hormel v. Helvering, 312 U. S. 
+552, 557 (1941); Unemployment Compensation Comm'n of Alaska v. Ara­
+gon, 329 U. S. 143, 154–155 (1946). That general rule, however, originated 
+in cases that “each involved an adversarial proceeding.” Sims v. Apfel, 
+530 U. S. 103, 110 (2000). Where claimants are not expected to develop 
+certain issues in ALJ proceedings, it is generally inappropriate to treat 
+those issues as forfeited. See id., at 109 (“[C]ourts require administrative 
+issue exhaustion `as a general rule' because it is usually `appropriate under 
+[an agency's] practice' for `contestants in an adversary proceeding' before 
+it to develop fully all issues there” (quoting L. A. Tucker Truck Lines, 344 
+U. S., at 36–37)). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+90 
+CARR v. SAUL 
+Opinion of the Court 
+than in Social Security proceedings,” where administrative 
+“proceedings are inquisitorial rather than adversarial.” Id., 
+at 110–111. Regulations governing SSA proceedings “ex­
+pressly provide that the SSA `conduct[s] the administrative 
+review process in an informal, nonadversary manner' ” and 
+assures claimants that the SSA “ `will consider at each step 
+of the review process any information you present as well as 
+all the information in our records.' ” Id., at 111 (quoting 20 
+CFR §404.900(b) (1999)). At the Appeals Council level, “the 
+Council's review is plenary unless it states otherwise.” 
+Sims, 530 U. S., at 111 (plurality opinion). Rather than ap­
+pear “as a litigant opposing the claimant,” the Commissioner 
+serves “just as an adviser to the Council.” Ibid. Claimants 
+are not required to fle a brief; indeed, the SSA's standard 
+form “provides only three lines for [a claimant's] request for 
+review.” Id., at 112. A notice “accompanying the form es­
+timates that it will take only 10 minutes to `read the instruc­
+tions, gather the necessary facts and fll out the form.' ” 
+Ibid. Thus, in the context of Appeals Council review, the 
+plurality observed that the “adversarial development of is­
+sues by the parties . . . on which [the judicial-proceedings] 
+analogy depends simply does not exist.” Ibid. 
+Justice O'Connor concurred in the judgment. In her view, 
+“the agency's failure to notify claimants of an issue exhaus­
+tion requirement” provided a “suffcient basis” for refusing 
+to impose one by judicial decree. Id., at 113. “Requiring 
+issue exhaustion is particularly inappropriate,” she ex­
+plained, “where the regulations and procedures of the [SSA] 
+affrmatively suggest that specifc issues need not be raised 
+before the Appeals Council.” Ibid. 
+Much of what the Sims opinions said about Appeals Coun­
+cil review applies equally to ALJ proceedings. The Sims 
+plurality itself noted that “[i]t is the ALJ's duty to investi­
+gate the facts and develop the arguments both for and 
+against granting benefts” and that “[t]he Commissioner has 
+no representative before the ALJ to oppose the claim for 
+
+Cite as: 593 U. S. 83 (2021) 
+91 
+Opinion of the Court 
+benefts.” Id., at 111. The SSA regulations that ensure 
+informal, nonadversarial proceedings and plenary review 
+apply as much to ALJs as to the Appeals Council. See 20 
+CFR § 404.900(b). Regulations also provide that ALJs will 
+“loo[k] fully into the issues” themselves, § 404.944, and may 
+“raise a new issue” at “any time . . . before mailing notice of 
+the hearing decision,” § 404.946(b)(1). Like the form sup­
+plied by the SSA to request Appeals Council review, the 
+form to request an ALJ hearing provides roughly three lines 
+for claimants to explain their disagreement with the agency's 
+determination, and the SSA “estimate[s]” that it will take 
+just “10 minutes to read the instructions, gather the facts, 
+and answer the questions” on that form. SSA, Request for 
+Hearing by Administrative Law Judge, Form HA–501–U5. 
+Last, as with the Appeals Council, SSA “regulations provide 
+no notice that claimants must . . . raise specifc issues before” 
+the ALJ “to preserve them for review in federal court.” 
+Sims, 530 U. S., at 113 (opinion of O'Connor, J.). 
+B 
+The parallels between ALJ and Appeals Council proceed­
+ings are many, but the Commissioner correctly notes several 
+differences that may make ALJ hearings relatively more ad­
+versarial. For one, ALJ hearings are typically available as 
+a matter of right, while Appeals Council review is discretion­
+ary. 
+Compare 20 CFR § 404.957 with § 404.967. 
+Most 
+claimants thus submit no more than a one-page request for 
+review to the Appeals Council before having their request 
+denied. Mandatory ALJ proceedings, by contrast, present 
+far more opportunities for claimants to press issues, and the 
+SSA consequently relies more heavily on those proceedings 
+to “conduc[t the agency's] principal and most thorough inves­
+tigation of . . . disability claim[s].” Brief for Respondent 35– 
+36. Additionally, before every hearing, the SSA mails claim­
+ants a “notice of hearing” that includes logistical information 
+and lists the “[t]he specifc issues to be decided in [the] case.” 
+Page Proof Pending Publication
+
+92 
+CARR v. SAUL 
+Opinion of the Court 
+§ 404.938(b)(1). Claimants must notify the ALJ in writing if 
+they “object to the issues to be decided at the hearing.” 4 
+§ 404.939. Similarly, SSA confict-of-interest regulations in­
+struct claimants to “notify the [ALJ] at [the] earliest oppor­
+tunity” if they “object to the [ALJ] who will conduct [their] 
+hearing.” § 404.940. 
+Even accepting that ALJ proceedings may be compara­
+tively more adversarial than Appeals Council proceedings, 
+the question nonetheless remains whether the ALJ proceed­
+ings at issue here were adversarial enough to support the 
+“analogy to judicial proceedings” that undergirds judicially 
+created issue-exhaustion requirements. Sims, 530 U. S., 
+at 112 (plurality opinion). In the specifc context of pe­
+titioners' Appointments Clause challenges, two additional 
+considerations tip the scales decidedly against imposing an 
+issue-exhaustion requirement.5 
+1 
+First, this Court has often observed that agency adjudica­
+tions are generally ill suited to address structural constitu­
+tional challenges, which usually fall outside the adjudicators' 
+areas of technical expertise. See, e. g., Free Enterprise 
+Fund v. Public Company Accounting Oversight Bd., 561 
+U. S. 477, 491 (2010); Califano v. Sanders, 430 U. S. 99, 109 
+(1977); Weinberger v. Salfi, 422 U. S. 749, 765 (1975). As 
+such, it is sometimes appropriate for courts to entertain con­
+stitutional challenges to statutes or other agency-wide poli­
+cies even when those challenges were not raised in adminis­
+trative proceedings.6 
+See, e. g., Mathews v. Diaz, 426 U. S. 
+4 As discussed above, see supra, at 88, the Commissioner “do[es] not 
+argue that these regulations themselves impose a forfeiture rule that ap­
+plies here.” Brief for Respondent 35, n. 2. 
+5 Outside the context of Appointments Clause challenges, such as in the 
+sphere of routine objections to individual benefts determinations, the 
+scales might tip differently. 
+6 Contrary to the Commissioner's assertion, Richardson v. Perales, 402 
+U. S. 389 (1971), has no bearing on whether an issue-exhaustion require­
+ment is appropriate in these cases. In Perales, the Court rejected a 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 83 (2021) 
+93 
+Opinion of the Court 
+67, 76–77 (1976). Thus, this Court observed in Mathews v. 
+Eldridge, 424 U. S. 319 (1976), that, so long as a Social Secu­
+rity claimant “had exhausted the full set of available admin­
+istrative review procedures” (as petitioners did here), “fail­
+ure to have raised his constitutional claim would not bar him 
+from asserting it later in a district court.” Id., at 329, n. 10. 
+Second, this Court has consistently recognized a futility 
+exception to exhaustion requirements. See, e. g., Bethesda 
+Hospital Assn. v. Bowen, 485 U. S. 399, 405–406 (1988); Mon­
+tana Nat. Bank of Billings v. Yellowstone County, 276 U. S. 
+499, 505 (1928). It makes little sense to require litigants to 
+present claims to adjudicators who are powerless to grant 
+the relief requested. Such a vain exercise will rarely “pro­
+tec[t] administrative agency authority” or “promot[e] judicial 
+effciency.” McCarthy, 503 U. S., at 145. 
+Both considerations apply fully here: Petitioners assert 
+purely constitutional claims about which SSA ALJs have no 
+special expertise and for which they can provide no relief. 
+Relying on L. A. Tucker Truck Lines, the Commissioner ar­
+gues that it nevertheless would have been fruitful for peti­
+tioners to raise Appointments Clause challenges in their ALJ 
+hearings because “ `[r]epetition of the objection' in multiple 
+cases could have led `to a change of policy.' ” Brief for Re­
+spondent 45 (quoting L. A. Tucker Truck Lines, 344 U. S., at 
+37). But the Commissioner misses a key distinction: In 
+L. A. Tucker Truck Lines, the aggrieved litigant had the 
+opportunity to object to the relevant method of appointment 
+before the full Interstate Commerce Commission itself. Id., 
+at 34. Repetition of such an objection in cases before the 
+claimant's procedural due process challenge to the admissibility of an ad­
+verse medical report, explaining (among other reasons) that “[a]lthough 
+the claimant complain[ed] of the lack of opportunity to cross-examine the 
+reporting physicians, he did not take advantage of the opportunity” to 
+subpoena the physicians. Id., at 404. Perales thus stands for the uncon­
+troversial (and irrelevant) proposition that a claimant is not denied due 
+process if he declines to take advantage of the adequate procedures avail­
+able to him. 
+Page Proof Pending Publication
+
+94 
+CARR v. SAUL 
+Opinion of the Court 
+full Commission might have persuaded it to change its “pre­
+determined policy on th[e] subject.” Id., at 37. Here, by 
+contrast, the SSA's administrative review scheme at no point 
+afforded petitioners access to the Commissioner, the one 
+person who could remedy their Appointments Clause chal­
+lenges. Nor were the ALJs capable of remedying any de­
+fects in their own appointments. After all, there were no 
+Commissioner-appointed ALJs to whom objecting claimants' 
+cases could be transferred, and the ALJs could not very well 
+have reappointed themselves. 
+Internal SSA guidance confrms as much. On January 30, 
+2018, soon after this Court granted certiorari in Lucia, the 
+agency issued an “emergency message” to ALJs advising 
+them that “adjudicators may see challenges . . . related to 
+the constitutionality of the appointment of SSA's ALJs.” 
+SSA, EM–18003: Important Information Regarding Possi­
+ble Challenges to the Appointment of Administrative Law 
+Judges in SSA's Administrative Process, p. 2. The agency 
+warned ALJs that, because the “SSA lacks the authority to 
+fnally decide constitutional issues such as these,” they 
+should “not discuss or make any fndings related to the Ap­
+pointments Clause issue on the record.” Ibid. Instead, 
+ALJs were directed to acknowledge any Appointments 
+Clause objections with standardized language explaining 
+that they “ `d[id] not have the authority to rule on that 
+challenge.' ” Ibid. The SSA reiterated these instructions 
+in a second emergency message issued shortly after 
+Lucia was decided.7 
+See SSA, EM–18003 REV: Important 
+7 Although the agency issued its internal guidance several months after 
+petitioners' ALJ hearings concluded, there is no indication that the ALJs 
+would or could have adjudicated an Appointments Clause challenge at any 
+time. Moreover, as a practical matter, the agency's emergency messages 
+belie the Commissioner's suggestion that the SSA would have changed 
+course if only it had been “ `put on notice of the accumulating risk of whole­
+sale reversals.' ” Brief for Respondent 45 (quoting L. A. Tucker Truck 
+Lines, 344 U. S., at 37). 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 83 (2021) 
+95 
+Opinion of the Court 
+Information Regarding Possible Challenges to the Appoint­
+ment of Administrative Law Judges in SSA's Administra­
+tive Process—UPDATE, pp. 1–2 (June 25, 2018). It was not 
+until March 2019 that the Acting Commissioner fnally in­
+structed the Appeals Council on how to handle preratifca­
+tion Appointments Clause challenges. See 84 Fed. Reg. 
+9582; supra, at 87. 
+2 
+Taking a somewhat different tack, the Commissioner con­
+tends that petitioners are not entitled to new hearings before 
+constitutionally appointed ALJs because they failed to make 
+“timely challenge[s]” to their adjudicators' appointments. 
+Ryder v. United States, 515 U. S. 177, 182 (1995); Lucia, 585 
+U. S., at ––– (quoting Ryder). That argument, however, pre­
+sumes what the Commissioner has failed to prove: that peti­
+tioners' challenges are, in fact, untimely. The Commissioner 
+relies on Ryder and Lucia, but neither of those decisions 
+had occasion to opine on what would constitute a “timely” 
+objection in an administrative review scheme like the SSA's. 
+Ryder involved an appeal from a Coast Guard court-martial, 
+515 U. S., at 179, an adversarial proceeding in which tradi­
+tional forfeiture rules apply, see United States v. Gladue, 67 
+M. J. 311, 313 (C. A. Armed Forces 2009). Lucia, meanwhile, 
+arose from proceedings before the Securities and Exchange 
+Commission, 585 U. S., at ––– – –––, in which a statutory 
+issue-exhaustion requirement applies, see 15 U. S. C. 
+§ 78y(c)(1). Where, as here, claimants are not required to 
+exhaust certain issues in administrative proceedings to pre­
+serve them for judicial review, claimants who raise those is­
+sues for the frst time in federal court are not untimely in 
+doing so. 
+*
+*
+* 
+Taken together, the inquisitorial features of SSA ALJ pro­
+ceedings, the constitutional character of petitioners' claims, 
+and the unavailability of any remedy make clear that “adver­
+Page Proof Pending Publication
+
+96 
+CARR v. SAUL 
+Opinion of Thomas, J. 
+sarial development” of the Appointments Clause issue “sim­
+ply [did] not exist” (and could not exist) in petitioners' ALJ 
+proceedings. Sims, 530 U. S., at 112 (plurality opinion). 
+The Courts of Appeals therefore erred in imposing an issue-
+exhaustion requirement on petitioners' Appointments Clause 
+claims. The judgments of the Eighth and Tenth Circuits are 
+reversed, and the cases are remanded for further proceed­
+ings consistent with this opinion. 
+It is so ordered. 
+Justice Thomas, with whom Justice Gorsuch and Jus­
+tice Barrett join, concurring in part and concurring in 
+the judgment. 
+I join Parts I, II–A, and II–B–2 of the opinion of the Court, 
+which correctly explain that the nonadversarial nature of an 
+agency proceeding generally gives good reason to refrain 
+from creating an issue-exhaustion requirement. See Sims 
+v. Apfel, 530 U. S. 103, 109–110 (2000). Proceedings before 
+an administrative law judge (ALJ) of the Social Security Ad­
+ministration are plainly nonadversarial: The regulations as­
+sure claimants that the agency will “conduct the administra­
+tive review process in an informal, non-adversarial manner.” 
+20 CFR § 404.900(b) (2020). ALJs can raise new issues 
+sua sponte. §§ 404.944, 404.946. Hearings are so informal 
+that lawyers, briefs, and even attendance are often optional. 
+§§ 404.948–404.950. And should an ALJ err, the Appeals 
+Council may review cases to correct anything from “error[s] 
+of law” to “broad policy or procedural issue[s] that may affect 
+the general public interest.” § 404.970(a). This decidedly 
+pro-claimant, inquisitorial process is quite unlike an adver­
+sarial suit in which parties are expected to identify, argue, 
+and preserve all issues. 
+To be sure, a few regulatory provisions direct claimants to 
+advocate on their own behalf by objecting to problems, in­
+cluding if the agency misidentifes issues before the hearing 
+or if the ALJ is “prejudiced or partial.” §§ 404.938–404.940. 
+Page Proof Pending Publication
+
+Cite as: 593 U. S. 83 (2021) 
+97 
+Opinion of Breyer, J. 
+But these unsurprising reminders that a claimant should not 
+sit idly on the sidelines hardly demand that the penalty for 
+overlooking an argument is forfeiture. On the contrary, 
+such a permanent consequence would be surprising in light 
+of the fexible, “informal” mechanisms that undergird the en­
+tire agency review process. § 404.900(b); see also Sims, 530 
+U. S., at 110 (plurality opinion) (“The differences between 
+courts and agencies are nowhere more pronounced than in 
+Social Security proceedings”). 
+Because these proceedings bear little resemblance to ad­
+versarial litigation, I agree with the Court that there is 
+no need for an exhaustion rule. I would end the analysis 
+there. 
+Justice Breyer, concurring in part and concurring in 
+the judgment. 
+I continue to believe that, “[u]nder ordinary principles of 
+administrative law a reviewing court will not consider argu­
+ments that a party failed to raise in timely fashion before an 
+administrative agency.” Sims v. Apfel, 530 U. S. 103, 114 
+(2000) (Breyer, J., dissenting). I also adhere to my prior 
+view that, in the particular context of the Social Security 
+Administration, a claimant “ordinarily must raise all relevant 
+issues before the ALJ” and that the “nonadversarial nature” 
+of the agency's procedures is generally irrelevant to whether 
+the ordinary rule requiring issue exhaustion ought to apply. 
+Id., at 117. Here, however, I agree with the Court that the 
+Appointments Clause challenges at issue fall into the well-
+established exceptions for constitutional and futile claims. 
+See ante, at 92–95; see also Sims, 530 U. S., at 115 (Breyer, 
+J., dissenting); Woodford v. Ngo, 548 U. S. 81, 103 (2006) 
+(Breyer, J., concurring in judgment); Ross v. Blake, 578 
+U. S. 632, 649 (2016) (Breyer, J., concurring in part) (recog­
+nizing these traditional exceptions). I therefore join Parts 
+I, II–B–1, and II–B–2 of the Court's opinion and concur in 
+the Court's judgment. 
+Page Proof Pending Publication
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+PRELIMINARY PRINT 
+Volume 602 U. S. Part 1 
+Pages 447–486 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+June 14, 2024 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2023 
+447 
+Syllabus 
+CAMPOS-CHAVES v. GARLAND, ATTORNEY 
+GENERAL 
+certiorari to the united states court of appeals for 
+the fth circuit 
+No. 22–674. Argued January 8, 2024—Decided June 14, 2024* 
+To initiate the removal of an alien from the United States who is either 
+“inadmissible” under 8 U. S. C. § 1182 or “deportable” under § 1227, the 
+Federal Government must provide the alien with “written notice” of 
+the proceedings. §§ 1229(a)(1), (2). Two types of “written notice” are 
+described in paragraphs (1) and (2) of § 1229(a): Paragraph (1) provides 
+that the alien be given a written “ `notice to appear,' ” or NTA, which 
+must set out, among other things, “[t]he time and place at which the 
+proceedings will be held.” Paragraph (2) states that “in the case of any 
+change or postponement in the time and place of such proceedings,” the 
+agency must provide “a written notice” specifying “the new time or 
+place of the proceedings” and “the consequences” of failing to attend. 
+An alien who fails to attend a hearing despite receiving notice “shall be 
+ordered removed in absentia” if the Government “establishes by clear, 
+unequivocal, and convincing evidence” that “the written notice” was 
+provided and that “the alien is removable.” §1229a(b)(5)(A). Three 
+scenarios permit the rescinding of an in absentia removal order, one of 
+which is when an alien “demonstrates that [he] did not receive notice in 
+accordance with paragraph (1) or (2)” of § 1229(a). § 1229a(b)(5)(C)(ii). 
+In these consolidated cases (one from the Fifth Circuit, and two from 
+the Ninth), aliens Esmelis Campos-Chaves, Varinder Singh, and Raul 
+Daniel Mendez-Colín, each moved to rescind his in absentia order of 
+removal on the ground that he did not receive proper notice of the re­
+moval hearing. In each case, the Government provided an initial NTA, 
+but the NTA did not specify the time and place of the removal hearing. 
+Eventually, the Government provided each alien with a notice of hear­
+ing under § 1229(a)(2) which set out the specifc time and place of the 
+removal hearing. None of the aliens showed up for his hearing, and 
+each was ordered removed in absentia by an Immigration Judge. Each 
+then sought to rescind the removal order, arguing that he did not re­
+*Together with No. 22–884, Garland v. Singh and Garland v. Mendez-
+Colín (see this Court's Rule 12.4), on certiorari to the United States Court 
+of Appeals for the Ninth Circuit. 
+
+Page Proof Pending Publication
+448 
+CAMPOS-CHAVES v. GARLAND 
+Syllabus 
+ceive a proper NTA under § 1229(a)(1). The Fifth Circuit considered 
+and denied one of the petitions, but the Ninth Circuit granted the 
+other two. 
+Held: Because each of the aliens in this case received a proper § 1229(a)(2) 
+notice for the hearings they missed and at which they were ordered 
+removed, they cannot seek rescission of their in absentia removal orders 
+on the basis of defective notice under § 1229a(b)(5)(C)(ii). Pp. 456–465. 
+(a) These cases turn on whether Campos-Chaves, Singh, and Mendez-
+Colín can “demonstrat[e]” that they “did not receive notice in accordance 
+with paragraph (1) or (2) of section 1229(a).” § 1229a(b)(5)(C)(ii). The 
+Government reads that provision to permit rescission only when the 
+alien did not receive notice of the hearing he failed to attend. Campos-
+Chaves, Singh, and Mendez-Colín, on the other hand, urge a reading of 
+the provision's word “or” that would distribute the phrase “did not re­
+ceive notice in accordance with” across “paragraph (1) or (2).” They 
+argue that because each can “demonstrat[e]” that he “did not receive” an 
+NTA, they each can seek rescission of their in absentia removal orders. 
+Pp. 456–457. 
+(b) The Government's provision of a single notice under either para­
+graph (1) or (2) defeats rescission under § 1229a(b)(5)(C)(ii). The word 
+“ `or' ” is “ `almost always disjunctive.' ” Encino Motorcars, LLC v. Na­
+varro, 584 U. S. 79, 87. Thus, § 1229a(b)(5)'s ordinary meaning is that 
+either a paragraph (1) notice or a paragraph (2) notice can count as 
+“notice in accordance with paragraph (1) or (2).” Statutory context 
+points in the same direction. For example, nearby § 1229a(b)(5)(A) also 
+refers to “paragraph (1) or (2)” notice. There, however, the “or” is unam­
+biguously disjunctive, and there is no way to distribute language across 
+the “or” that can provide an alternative meaning. Furthermore, subpar­
+agraph (A) requires the Government to establish that it provided “the 
+written notice,” indicating that only a single notice must be provided in a 
+single document. Niz-Chavez v. Garland, 593 U. S. 155, 166. Pp. 457–459. 
+(c) In § 1229a(b)(5)(C)(ii), “notice in accordance with paragraph (1) or 
+(2)” refers to the notice for the hearing the alien missed and at which 
+he was ordered removed. Notice under paragraph (2) supersedes the 
+NTA; when there is paragraph (2) notice, it is that notice which informs 
+the alien when to appear, not the NTA. As previously noted, § 1229a(b) 
+(5)(C)(ii)'s “notice in accordance with paragraph (1) or (2)” must corre­
+spond with § 1229a(b)(5)(A)'s “the written notice.” The only way to 
+make sense of § 1229a(b)(5)(C)(ii)'s reference to a single notice is for that 
+notice to be the one that informed the alien of the time and date of the 
+hearing the alien missed, and at which he was ordered removed. That 
+reading also gives the provision a “substantive effect that is compatible 
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 447 (2024) 
+449 
+Syllabus 
+with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of 
+Inwood Forest Associates, Ltd., 484 U. S. 365, 371. Pp. 459–461. 
+(d) Campos-Chaves, Singh, and Mendez-Colín all received “notice in 
+accordance with paragraph (1) or (2)” for the hearings they missed, and 
+thus their in absentia removal orders may not be rescinded on that 
+ground. The Government concedes that none of them received a com­
+pliant NTA. Each did, however, receive a “notice in accordance with 
+paragraph . . . (2),” and each notice met all of the requirements for a 
+notice under that provision. After receiving a defective NTA, each 
+alien received a notice that provided a specifc time and place for their 
+removal proceedings. 
+Those notices provided “new” times, and 
+thereby “change[d]” the time and place of their removal proceedings, 
+within the meaning of §1229(a)(2). Pp. 461–465. 
+No. 22–674, 54 F. 4th 314, affrmed; No. 22–884, 24 F. 4th 1315, reversed 
+(Mendez-Colín) and vacated and remanded (Singh). 
+Alito, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Thomas, Kavanaugh, and Barrett, JJ., joined. Jackson, J., fled a 
+dissenting opinion, in which Sotomayor, Kagan, and Gorsuch, JJ., 
+joined, post, p. 465. 
+Charles L. McCloud argued the cause for the United 
+States in both cases. With him on the briefs were Solici­
+tor General Prelogar, Principal Deputy Assistant Attorney 
+General Boynton, Deputy Solicitors General Kneedler 
+and Gannon, 
+John W. Blakeley, and Elizabeth K. 
+Fitzgerald-Sambou. 
+Easha Anand argued the cause for petitioner in No. 22– 
+674 and respondents in No. 22–884. With her on the brief 
+for respondent Raul Daniel Mendez-Colín in No. 22–884 
+were Christopher Stender, Martin Robles-Avila, Jeffrey L. 
+Fisher, and Pamela S. Karlan. Saad Ahmad and Martin 
+Robles-Avila fled a brief for respondent Varinder Singh in 
+No. 22–884. Raed Gonzalez, Ross Alan Miller, Alexandre 
+Afanassiev, Nadia Anguiano, Elizabeth G. Bentley, and 
+Amanda Lea Waterhouse fled a brief for petitioner Moris 
+Esmelis Campos-Chaves in No. 22–674.* 
+*Briefs of amici curiae urging reversal in No. 22–674 and affrmance in 
+No. 22–884 were fled for Forty-Two Former Immigration Judges et al. by 
+Richard W. Mark; for the National Immigrant Justice Center et al. by 
+
+450 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+When the Government seeks to remove an alien, it is re­
+quired to notify the alien of the time and place of the removal 
+hearings. Title 8 U. S. C. § 1229(a) describes two types of 
+notice—an initial notice to appear under paragraph (1), and, 
+“in the case of any change or postponement in the time and 
+place of” the removal proceedings, a notice of hearing under 
+paragraph (2). When an alien fails to appear at his removal 
+hearing despite receiving such notice, he “shall be ordered 
+removed in absentia” if the Government can make certain 
+showings. § 1229a(b)(5)(A). The alien can seek to have 
+that order rescinded, however, if the alien can demonstrate 
+that he “did not receive notice in accordance with paragraph 
+(1) or (2) of [§ 1229(a)].” 
+We granted certiorari in these cases to consider what it 
+means to “demonstrat[e] that the alien did not receive no­
+tice in accordance with paragraph (1) or (2).” § 1229a(b)(5) 
+(C)(ii); 600 U. S. ––– (2023). Each of the aliens in these cases 
+argues that he may seek rescission because he did not re­
+ceive a notice to appear that complies with paragraph (1). 
+We hold that, to rescind an in absentia removal order on the 
+ground that the alien “did not receive notice in accordance 
+with paragraph (1) or (2),” the alien must show that he did 
+not receive notice under either paragraph for the hearing at 
+which the alien was absent and ordered removed. Because 
+each of the aliens in these cases received a proper paragraph 
+(2) notice for the hearings they missed and at which they 
+were ordered removed, they cannot seek rescission of their 
+Matthew E. Price, Michael J. DeMar, and Charles Roth; and for the Na­
+tional Immigration Litigation Alliance et al. by Thomas G. Sprankling, 
+Kristin Macleod-Ball, and Trina Realmuto. 
+Christopher J. Hajec fled a brief for the Immigration Reform Law Insti­
+tute as amicus curiae urging affrmance in both cases. 
+Michael D. Reif and Ellen Jalkut fled a brief for Lucas Champollion 
+et al. as amici curiae in both cases. 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+451 
+Opinion of the Court 
+in absentia removal orders on the basis of defective notice 
+under § 1229a(b)(5)(C)(ii). 
+I 
+A 
+The Immigration and Nationality Act (INA), 66 Stat. 163, 
+as amended, 8 U. S. C. § 1101 et seq., sets out “how persons 
+are admitted to, and removed from, the United States.” 
+Pereida v. Wilkinson, 592 U. S. 224, 227 (2021). An alien 
+is removable if he is either “inadmissible” under § 1182 or 
+“deportable” under § 1227. 8 U. S. C. § 1229a(e)(2). When 
+the Federal Government decides to place an alien in removal 
+proceedings, the INA requires that the alien be provided 
+with “written notice.” §§ 1229(a)(1), (2). 
+That “written notice” can take one of two forms. First, 
+under paragraph (1) of § 1229(a), the alien “shall be given” 
+a “ `notice to appear,' ” or NTA. The NTA must set out, 
+among other things, “[t]he nature of the proceedings against 
+the alien,” “[t]he legal authority under which the proceedings 
+are conducted,” “[t]he time and place at which the proceed­
+ings will be held,” and the consequences of failing to appear. 
+§ 1229(a)(1). In Niz-Chavez v. Garland, 593 U. S. 155 (2021), 
+we held that this information must be provided in a single 
+document in order to satisfy § 1229(a)(1). Id., at 160–162. 
+Second, under paragraph (2), “in the case of any change or 
+postponement in the time and place of such proceedings,” the 
+agency must provide “a written notice” specifying “the new 
+time or place of the proceedings” and “the consequences” of 
+failing to attend. § 1229(a)(2). 
+Aliens who receive such written notice are expected to 
+attend their hearings. Section 1229a(b)(5)(A) provides the 
+consequences for aliens who, “after written notice required 
+under paragraph (1) or (2) of section 1229(a) of this title has 
+been provided,” fail to attend “a proceeding under this sec­
+tion.” Such aliens “shall be ordered removed in absentia” if 
+the Government “establishes by clear, unequivocal, and con­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+452 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+vincing evidence that the written notice was so provided and 
+that the alien is removable.” §1229a(b)(5)(A). 
+There are three scenarios in which an in absentia removal 
+order may be rescinded. First, the alien can fle a motion 
+to reopen within 180 days of the order, and must demon­
+strate that the failure to appear was because of “exceptional 
+circumstances.” § 1229a(b)(5)(C)(i). Second, an alien can 
+seek to rescind his in absentia removal order if he “demon­
+strates that the alien was in Federal or State custody and 
+the failure to appear was through no fault of the alien.” 
+§ 1229a(b)(5)(C)(ii). Third, there is the scenario implicated 
+by these cases: an alien can seek rescission if he “demon­
+strates that the alien did not receive notice in accordance 
+with paragraph (1) or (2)” of § 1229(a). Ibid. 
+B 
+We consolidated three cases brought by aliens who moved 
+for rescission on the ground that they did not receive proper 
+notice. Though the facts vary, the key details are the same 
+in each case. The Government failed to provide a single-
+document NTA, but eventually provided each alien with a 
+notice specifying the time and place of the removal hearing. 
+When each alien failed to show up for the hearing, an Im­
+migration Judge entered an in absentia order of removal. 
+Each alien then sought rescission of that order under 
+§ 1229a(b)(5)(C)(ii). In all three cases, an Immigration 
+Judge and the Board of Immigration Appeals (BIA) refused 
+to reopen the proceedings, prompting the aliens to fle a peti­
+tion for review in federal court. The Fifth Circuit consid­
+ered and denied one of these petitions, but the Ninth Circuit 
+granted the other two. 
+1 
+Moris Esmelis Campos-Chaves is the petitioner from the 
+Fifth Circuit. He is a native and citizen of El Salvador, and 
+he entered the United States in 2005 without inspection near 
+Laredo, Texas. Three days later, the Government initiated 
+removal proceedings by serving an NTA, charging that he 
+
+Cite as: 602 U. S. 447 (2024) 
+453 
+Opinion of the Court 
+was removable under § 1182(a)(6)(A)(i). The NTA provided 
+the address of the immigration court, but told Campos-
+Chaves to appear on “a date to be set” and at “a time to be 
+set.” App. 54. The Government followed up a few months 
+later, sending Campos-Chaves a notice of hearing that set 
+the hearing date to be September 20, 2005, at 9 a.m. 
+Campos-Chaves never appeared. The Immigration Judge 
+noted his absence and the lack of any explanation for it. 
+Upon fnding that “clear, convincing, and unequivocal” evi­
+dence established Campos-Chaves's removability, the Immi­
+gration Judge ordered him removed in absentia. App. to 
+Pet. for Cert. in No. 22–674, p. 16a. 
+Thirteen years later, Campos-Chaves fled a motion to re­
+open his removal proceedings on the theory that he never 
+received a proper NTA. He relied on our decision in Pereira 
+v. Sessions, 585 U. S. 198 (2018), in which we held that 
+“[a] putative notice to appear that fails to designate the spe­
+cifc time or place” of the removal proceedings “is not a 
+`notice to appear under section 1229(a).' ” Id., at 208–209 
+(quoting 8 U. S. C. § 1229b(d)(1)). The Immigration Judge 
+denied Campos-Chaves's motion, and the BIA dismissed his 
+subsequent appeal. The BIA relied on prior precedent in 
+which it had held that an in absentia order of removal may 
+not be rescinded merely because the NTA lacked time and 
+place information “so long as a subsequent [notice of hearing] 
+specifying that information was properly sent to the alien.” 
+App. to Pet. for Cert. in No. 22–674, at 8a. 
+Campos-Chaves fled a petition for review in the Fifth Cir­
+cuit. After withdrawing and amending one opinion, the 
+Fifth Circuit denied his petition, relying on the fact that 
+Campos-Chaves “d[id] not dispute that he . . . received the 
+subsequent [notice].” 54 F. 4th 314, 315 (2022). 
+2 
+Varinder Singh is one of the two respondents from the 
+Ninth Circuit. He is a native and citizen of India who en­
+tered the United States in 2016 by climbing over a fence near 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+454 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+Calexico, California. Several weeks later, the Government 
+served an NTA that charged Singh as removable under 
+§ 1182(a)(6)(A)(i) and indicated that the date and time of the 
+hearing was “TBD.” App. 11. Five days later, the Govern­
+ment sent a notice of hearing to Singh's given address that 
+provided a specifc time and date. About two years later, in 
+October 2018, the immigration court sent a new notice of 
+hearing to Singh's address, rescheduling the hearing for No­
+vember 26, 2018, at 1 p.m. 
+When that date arrived, Singh failed to appear. Because 
+the Government did not have his fle, however, the immigra­
+tion court rescheduled the hearing for December 12, 2018, at 
+9 a.m., again sending a notice to Singh's address. Singh 
+failed to appear at that hearing as well. The Immigration 
+Judge determined that Singh was removable, and accord­
+ingly entered an in absentia order of removal. 
+In April 2019, Singh sought to rescind his removal order. 
+Like Campos-Chaves, Singh argued that rescission was war­
+ranted because he did not receive a proper NTA under Pe­
+reira. The Immigration Judge and the BIA disagreed, so 
+Singh petitioned for review by the Ninth Circuit. 
+The Ninth Circuit granted his petition. 24 F. 4th 1315, 
+1317 (2022). 
+The panel held that the lack of a single-
+document NTA alone rendered Singh's in absentia removal 
+order rescindable. Id., at 1319–1320. The Government's 
+petition for rehearing en banc was denied. 51 F. 4th 371 
+(2022). Judge Collins, joined by 11 other judges, dissented. 
+Id., at 371–382. 
+3 
+Raul Daniel Mendez-Colín, a native and citizen of Mexico, 
+is the other respondent from the Ninth Circuit. He at­
+tempted to enter the United States in 2001 at San Luis, Ari­
+zona, with two other aliens, falsely claiming that he was a 
+United States citizen. The next day, he was served an 
+NTA, which charged him with removability under § 1182(a) 
+(6)(E)(i). The NTA included the immigration court's ad­
+
+Cite as: 602 U. S. 447 (2024) 
+455 
+Opinion of the Court 
+dress, but provided only that the date and time were “[t]o be 
+set.” App. 46. 
+Soon thereafter, the immigration court mailed Mendez-
+Colín a notice of hearing, with a specifc date and time for 
+a hearing later that year. Mendez-Colín appeared at that 
+hearing. The immigration court ultimately scheduled multi­
+ple additional hearings to take place in 2002. For each, the 
+Immigration Judge provided a notice of hearing to either 
+Mendez-Colín or his attorney, who attended all of the 2002 
+hearings. 
+The Immigration Judge sustained the charge of removabil­
+ity at the last of those hearings. Mendez-Colín expressed 
+his desire to apply for cancellation of removal, prompting 
+the immigration court to mail a notice to his attorney for an 
+individual hearing on September 15, 2003, at 9 a.m. 
+Days before the September 15 hearing, Mendez-Colín's at­
+torney fled a motion to withdraw as counsel because of his 
+client's “fail[ure] to maintain contact.” Record in No. 20– 
+71846 (CA9), ECF Doc. 9–2, p. 77. Nonetheless, the attor­
+ney attended the September 15 hearing, where the Immigra­
+tion Judge granted the motion to withdraw but retained the 
+attorney for “the limited purpose of serv[ing any] in absentia 
+order.” Id., at 155. The Immigration Judge determined 
+that Mendez-Colín “abandoned any and all claim(s) for relief 
+from removal” and ordered him removed in absentia. Id., 
+at 156. 
+Mendez-Colín fled two motions to reopen his removal pro­
+ceedings in December 2003 and February 2004, respectively. 
+The Immigration Judge denied both. Mendez-Colín ap­
+pealed the denial of his second motion to reopen, but the BIA 
+considered the appeal withdrawn when he was removed from 
+the United States during its pendency. 
+About 15 years later, Mendez-Colín moved to reinstate his 
+appeal, now claiming that his in absentia order of removal 
+was rescindable because of his defective NTA. The BIA de­
+nied the motion, prompting Mendez-Colín to fle a petition 
+Page Proof Pending Publication
+
+456 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+for review, which was heard by the same Ninth Circuit panel 
+that heard Singh. 2022 WL 342959 (2022). The panel 
+granted the petition in an unpublished opinion, ibid., and the 
+full court denied the Government's en banc petition alongside 
+the en banc petition in Singh. 50 F. 4th 942, 946 (2022). 
+II 
+We granted certiorari in all three cases to decide whether 
+an alien can seek rescission of an in absentia removal order 
+indefnitely whenever the Government fails to provide a 
+single-document NTA. The Government concedes that, in 
+all three cases, the NTAs lacked a specifc time and date 
+and thus failed to comply with § 1229(a)(1). And before this 
+Court, each alien argues that he is eligible for rescission 
+under § 1229a(b)(5)(C)(ii). 
+Thus, this litigation turns 
+on whether Campos-Chaves, Singh, and Mendez-Colín 
+can “demonstrat[e]” that they “did not receive notice in ac­
+cordance with paragraph (1) or (2) of section 1229(a).” 
+§ 1229a(b)(5)(C)(ii). 
+The Government reads § 1229a(b)(5)(C)(ii) to permit rescis­
+sion only when the alien did not receive notice of the hearing 
+he failed to attend. In each of these cases, the alien was 
+ordered removed in absentia at a hearing for which he re­
+ceived notice. The Government argues that those notices 
+of hearing complied with paragraph (2), and that each alien 
+thereby “receive[d] notice in accordance with paragraph (1) 
+or (2) of section 1229(a).” Ibid. That, continues the Gov­
+ernment, means the aliens are ineligible for rescission of 
+their in absentia removal orders. 
+Campos-Chaves, Singh, and Mendez-Colín read the statute 
+differently and urge a distributive reading of the “or” in 
+§ 1229a(b)(5)(C)(ii). That is, they distribute the phrase “did 
+not receive notice in accordance with” across “paragraph (1) 
+or (2),” such that an alien can have his in absentia removal 
+order rescinded if he “demonstrates” that he “did not receive 
+notice in accordance with” paragraph (1) or that he “did 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+457 
+Opinion of the Court 
+not receive notice in accordance with” paragraph (2). Be­
+cause each alien can “demonstrat[e]” that he “did not re­
+ceive” an NTA, they argue that they each can seek rescission 
+of their in absentia removal orders. Brief for Respondent 
+Singh 47. 
+We agree with the Government. An alien can have his in 
+absentia removal order rescinded under § 1229a(b)(5)(C)(ii) 
+only if he can demonstrate that he “did not receive” a para­
+graph (1) notice or a paragraph (2) notice—whichever corre­
+sponds to the hearing at which he was ordered removed in 
+absentia. Each alien before us received paragraph (2) no­
+tices for the hearings they missed. They are therefore ineli­
+gible for rescission of their in absentia removal orders. 
+A 
+As always, we start with the text. Bartenwerfer v. Buck­
+ley, 598 U. S. 69, 74 (2023). And here, the text provides that 
+to be eligible for rescission of his in absentia removal order 
+an alien must “demonstrat[e] that the alien did not receive 
+notice in accordance with paragraph (1) or (2) of section 
+1229(a).” § 1229a(b)(5)(C)(ii). The word “ `or' ” is “ `almost 
+always disjunctive,' ” Encino Motorcars, LLC v. Navarro, 
+584 U. S. 79, 87 (2018) (quoting United States v. Woods, 571 
+U. S. 31, 45 (2013)), and is generally used “to indicate . . . an 
+alternative,” Webster's Third New International Dictionary 
+1585 (1993); see also Woods, 571 U. S., at 45–46. So here, 
+§ 1229a(b)(5)'s ordinary meaning is that either a paragraph 
+(1) notice or a paragraph (2) notice can count as “notice in 
+accordance with paragraph (1) or (2).” 
+Of course, “statutory context can overcome the ordinary, 
+disjunctive meaning of `or.' ” Encino Motorcars, 584 U. S., 
+at 87; see also Pulsifer v. United States, 601 U. S. 124, 151 
+(2024) (“[C]onjunctions are versatile words, which can work 
+differently depending on context”). But statutory context 
+points in the same direction as the usual meaning here. 
+Consider § 1229a(b)(5)(A), just two subparagraphs earlier, 
+Page Proof Pending Publication
+
+458 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+which sets out the preconditions for an alien to be removed 
+in absentia in the frst place. That subparagraph provides: 
+“Any alien who, after written notice required under 
+paragraph (1) or (2) of [§ 1229(a)] has been provided 
+to the alien or the alien's counsel of record, does not 
+attend a proceeding under this section, shall be or­
+dered removed in absentia if the Service establishes by 
+clear, unequivocal, and convincing evidence that the 
+written notice was so provided and that the alien is 
+removable.” 
+Just as in subparagraph (C), subparagraph (A) refers to 
+“paragraph (1) or (2)” notice. In subparagraph (A), how­
+ever, the “or” is unambiguously disjunctive; there is no way 
+to distribute language across the “or” that can provide an 
+alternative meaning of the statute. On any reading, subpar­
+agraph (A) does not require both paragraphs (1) and (2) no­
+tice before an alien can be removed in absentia. It requires 
+only one. 
+Furthermore, subparagraph (A) requires the Government 
+to establish that it provided “the written notice.” § 1229a(b) 
+(5)(A) (emphasis added); see also ibid. (“The written notice 
+by the Attorney General shall be considered suffcient for 
+purposes of this subparagraph if provided at the most recent 
+address provided under section 1229(a)(1)(F)” (emphasis 
+added)). In Niz-Chavez, we concluded that the phrase “ `the 
+notice described in paragraph (1) or (2) of section 1229(a)' ” 
+indicated that the notice must be provided in one document. 
+593 U. S., at 166 (quoting § 1229a(b)(7)); see also id., at 165 
+(“[A]n article coupled with a singular noun . . . suggest[s] a 
+discrete document”). If “the notice” denotes a single docu­
+ment, it certainly must denote a single notice. And as long 
+as the Government can show—under the given burden of 
+proof—that the alien is removable and was provided “the 
+written notice,” the alien “shall be ordered removed in ab­
+sentia.” § 1229a(b)(5)(A) (emphasis added). Subparagraph 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+459 
+Opinion of the Court 
+(A) clearly contemplates in absentia removal of aliens who 
+received only one notice under paragraph (1) or (2). 
+Indeed, concluding otherwise would create a mismatch in 
+the statutory scheme. Under the aliens' theory, it is more 
+diffcult for the Government to defend an in absentia removal 
+order than it is to obtain one in the frst place. An alien can 
+be removed in absentia on the basis of receiving one notice, 
+but the aliens would read § 1229a(b)(5)(C)(ii) to permit rescis­
+sion of that order for failure to receive both types of notices. 
+Brief for Respondent Singh 22. We doubt that Congress in­
+tended such an incongruity. See Dacostagomez-Aguilar v. 
+United States Atty. Gen., 40 F. 4th 1312, 1317 (CA11 2022) 
+(“It would be nonsensical to invalidate an in absentia re­
+moval order because two kinds of notice were not received 
+when only one was required in the frst place”). 
+B 
+Our conclusion that a single notice defeats rescission under 
+§ 1229a(b)(5)(C)(ii) does not end the analysis, however. We 
+still must determine which notice the alien must show was 
+lacking in order to have his in absentia removal order re­
+scinded. We hold that, in § 1229a(b)(5)(C)(ii), “notice in ac­
+cordance with paragraph (1) or (2)” refers to the notice for 
+the hearing the alien missed, and at which he was ordered 
+removed. 
+Section 1229a(b)(5)(C)(ii) cross-references paragraphs (1) 
+and (2) of § 1229(a). Paragraph (1) notice—the NTA—is the 
+initial document notifying the alien of “removal proceedings 
+under” § 1229a. Paragraph (2) notice issues “in the case of 
+any change or postponement in the time and place of such 
+proceedings” and provides the “new time or place of the pro­
+ceedings.” Thus, notice under paragraph (2) supersedes the 
+NTA; when there is paragraph (2) notice, it is that notice 
+which informs the alien when to appear, not the NTA. 
+Now turn back to § 1229a. As noted before, for the statu­
+tory scheme to make sense, “notice in accordance with para­
+Page Proof Pending Publication
+
+460 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+graph (1) or (2)” in § 1229a(b)(5)(C)(ii) must correspond with 
+“the written notice” mentioned in § 1229a(b)(5)(A). And 
+§ 1229a(b)(5)(A) contemplates a very specifc process. An 
+alien “shall be ordered removed in absentia” when he “does 
+not attend a proceeding under this section” and the Govern­
+ment establishes, among other things, that “the written no­
+tice was so provided.” (Emphasis added.) Thus, “the writ­
+ten notice” is tied to the singular proceeding missed, and at 
+which the alien was “removed in absentia.” Whether that 
+notice was issued under paragraph (1) as an NTA or under 
+paragraph (2), it is that notice which the Government must 
+prove was provided to remove an alien in absentia. And it 
+is that notice which the alien must prove was not provided 
+in order to have his in absentia removal order rescinded. 
+This reading aligns with common sense. See Koons 
+Buick Pontiac GMC, Inc. v. Nigh, 543 U. S. 50, 63 (2004) 
+(“ `[T]here is no canon against using common sense in con­
+struing laws as saying what they obviously mean' ” (quoting 
+Roschen v. Ward, 279 U. S. 337, 339 (1929)). The Govern­
+ment does not argue that either a paragraph (1) or a para­
+graph (2) notice is always suffcient regardless of which 
+corresponds to the hearing the alien missed. A simple 
+hypothetical demonstrates why. Suppose the Government 
+sent a fully compliant NTA to the alien, specifying the time, 
+date, and place of the hearing. Suppose then that the Gov­
+ernment changed the hearing date without sending any no­
+tice whatsoever to the alien, and that the alien was ordered 
+removed in absentia at that hearing. Literally, the alien 
+received “notice in accordance with paragraph (1) or (2).” 
+§ 1229a(b)(5)(C)(ii). But no one would say the alien is 
+thereby ineligible to seek rescission of a removal order en­
+tered at a hearing for which he never received notice. 
+The only way to make sense of § 1229a(b)(5)(C)(ii)'s refer­
+ence to a single notice is for that notice to be the one that 
+matters: the one that informed the alien of the time and date 
+of the hearing the alien missed, and at which he was ordered 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+461 
+Opinion of the Court 
+removed. That reading also gives the provision a “substan­
+tive effect that is compatible with the rest of the law.” 
+United Sav. Assn. of Tex. v. Timbers of Inwood Forest Asso­
+ciates, Ltd., 484 U. S. 365, 371 (1988). Recall the other two 
+scenarios in which an in absentia removal order may be re­
+scinded. In those, the alien must either demonstrate that 
+“the failure to appear was because of exceptional circum­
+stances,” § 1229a(b)(5)(C)(i), or that he “was in Federal or 
+State custody and the failure to appear was through no fault 
+of the alien,” § 1229a(b)(5)(C)(ii). For either, relief is condi­
+tioned upon the alien's showing he was not at fault for failing 
+to appear. See § 1229a(e)(1) (defning “exceptional circum­
+stances” to be “beyond the control of the alien”). We think 
+Congress had the same idea in the third scenario. The 
+alien's failure to appear is excused by his failure to receive a 
+paragraph (1) or (2) notice only if that notice would have 
+informed the alien of the relevant hearing. 
+C 
+Finally, we must decide whether Campos-Chaves, Singh, 
+and Mendez-Colín received “notice in accordance with para­
+graph (1) or (2)” for the hearings they missed. We hold that 
+they did, and that their in absentia removal orders thus may 
+not be rescinded on that ground. 
+The Government concedes—as it must under Pereira and 
+Niz-Chavez—that none of the aliens received an NTA com­
+pliant with § 1229(a)(1). Each alien's NTA provided only 
+that the time of the hearing was “TBD” or “to be set,” which 
+is the sort of language we found to be inadequate in Pereira. 
+See 585 U. S., at 206 (NTA which ordered alien to appear 
+“ `on a date to be set at a time to be set' ” was insuffcient to 
+satisfy § 1229(a)(1)). This litigation thus turns on whether 
+the aliens received “notice in accordance with paragraph . . . 
+(2).” § 1229a(b)(5)(C)(ii). 
+They each did. Paragraph (2) provides that, “in the case 
+of any change or postponement in the time and place” of re­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+462 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+moval proceedings, “a written notice shall be given” to the 
+alien that includes “the new time or place of the proceedings” 
+and the consequences of “failing . . . to attend such proceed­
+ings.” § 1229(a)(2)(A). Each requirement was met here. 
+Campos-Chaves, Singh, and Mendez-Colín were notifed of 
+the time of the hearing and the consequences of failing to 
+appear. Those times were all “new”: those notices were the 
+frst time any of the aliens were informed when those specifc 
+hearings would take place. And those notices were for the 
+hearings which they missed, and at which they were ordered 
+removed. All three thus in fact received “notice in accord­
+ance with paragraph (1) or (2)” within the meaning of 
+§ 1229a(b)(5)(C)(ii). 
+The aliens argue otherwise, focusing on the requirement 
+that paragraph (2) notice be given “in the case of any change 
+or postponement in the time and place of such proceedings.” 
+In their view, there cannot have been a “change” in the time 
+of the proceedings if no time had ever been set. The same 
+goes for the requirement that paragraph (2) notice give “the 
+new time or place of the proceedings.” According to the 
+aliens, there cannot be a “new” time without an old time. 
+In effect, the aliens think that there cannot be paragraph (2) 
+notice without an earlier paragraph (1) notice. 
+We reject both textual arguments. The aliens take too 
+narrow a reading of the term “change.” In their telling, 
+“change” means “substitution,” and substitution presupposes 
+that there was a date before. See Brief for Petitioner 
+Campos-Chaves 16–17. But to “change” can also mean “to 
+replace with another or others of the same kind or class,” 
+“to switch to another,” to “alter,” or to “modify.” Webster's 
+Third New International Dictionary 373–374 (1986). What 
+happened here fts under any of those defnitions. The no­
+tice of hearing Campos-Chaves received “changed”—that is, 
+“replaced,” “switched,” or “substituted”—a “date to be set” 
+and a “time to be set” to “Sep 20, 2005,” and “9:00 A.M.,” 
+respectively. App. 50. The notice of hearing Singh re­
+
+Cite as: 602 U. S. 447 (2024) 
+463 
+Opinion of the Court 
+ceived “changed” the “TBD” in his NTA to “Dec. 12, 2018,” 
+and “9:00 A.M.” Id., at 1. And the notice of hearing 
+Mendez-Colín received “changed”—that is, “altered” or 
+“modifed”—the time and place of his proceedings by adding 
+a hearing on September 15, 2003, at 9 a.m. 
+The aliens' 
+cramped reading of “change” is out of place here, especially 
+given that the statute refers to “any change.” § 1229(a)(2) 
+(emphasis added); see Patel v. Garland, 596 U. S. 328, 338 
+(2022) (“[T]he word `any' has an expansive meaning” (some 
+internal quotation marks omitted)). 
+The aliens' argument that a “new” time or place requires 
+an “old” time or place fares no better. In fact, it runs 
+against how that word is ordinarily used. No one thinks 
+that congratulating a couple on having a “new” baby implies 
+that the couple is replacing an “old” baby. The word “new” 
+describes something that has “originated or occurred lately,” 
+Webster's Third New International Dictionary, at 1522, or 
+is “novel,” ibid. The times provided by the aliens' notices 
+of hearing were all those things. The frst occasion on 
+which Campos-Chaves, Singh, and Mendez-Colín were in­
+formed of the time of the particular hearing was when they 
+received their hearing notices. Nonetheless, they failed to 
+show up at those hearings, and in their absence they were 
+ordered removed. They received a “notice in accordance 
+with” paragraph (2), and thus cannot seek rescission under 
+§ 1229a(b)(5)(C)(ii). 
+Finally, the aliens argue that we have already decided that 
+a paragraph (2) notice requires that the alien has received 
+an adequate NTA. They point to our statement in Pereira 
+that “paragraph (2) presumes that the Government has al­
+ready served [an NTA] that specifed a time and place” 
+because “[o]therwise, there would be no time or place to 
+`change or postpon[e].' ” 
+585 U. S., at 210 (quoting 
+§ 1229(a)(2)). That case concerned the “narrow question” of 
+the operation of the so-called stop-time rule. Id., at 202. 
+To be eligible for cancellation of removal relief, an alien must 
+Page Proof Pending Publication
+
+464 
+CAMPOS-CHAVES v. GARLAND 
+Opinion of the Court 
+have been “physically present in the United States for a con­
+tinuous period of not less than 10 years.” § 1229b(b)(1)(A). 
+Under the stop-time rule, however, an alien's time in the 
+country generally ceases to count when he “is served a notice 
+to appear under section 1229(a).” § 1229b(d)(1)(A). In Pe­
+reira, we decided that, for a notice to qualify as an NTA and 
+to trigger the stop-time rule, it must include time and place 
+information. Id., at 202. 
+We did not reach out to decide today's question in that 
+case. The meaning of § 1229(a)(2) was not at issue in Pe­
+reira. Indeed, when the Government in Pereira argued 
+that § 1229b(d)(1)(A)'s reference to a “notice to appear under 
+section 1229(a)” referred to paragraph (2) as well, the Court's 
+frst—and suffcient—response was that the “broad refer­
+ence” to § 1229(a) was “of no consequence,” because “only 
+paragraph (1) bears on the meaning of a `notice to appear.' ” 
+Id., at 209. Only then did the Court go on to state the lan­
+guage on which the aliens rely so heavily—that paragraph 
+(2) “presumes” an adequate NTA, and that paragraph (2) 
+therefore, “[i]f anything,” “bolsters” the bottom-line conclu­
+sion that an NTA must include time and place information. 
+Ibid. (emphasis added). To the extent Pereira discussed 
+paragraph (2), its language was mere dicta.1 
+Today's decision does not mean that the Government is 
+free of its obligation to provide an NTA. That document 
+has an important place within the statutory scheme because 
+it contains information that aliens may need to present their 
+case, including the conduct for which they are charged and 
+1 The aliens' invocation of Niz-Chavez v. Garland, 593 U. S. 155 (2021), 
+fares no better. In that case, we recognized that § 1229(a)(2) “permits 
+[the Government] to send a supplemental notice amending the time and 
+place of an alien's hearing if logistics require a change.” Id., at 170. 
+Thus, if it turns out that the chosen time and place in the NTA is inconve­
+nient, the Government is free to amend it through a paragraph (2) notice. 
+Ibid. That point remains true even if there are other instances in which 
+paragraph (2) notices may issue. 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+465 
+Jackson, J., dissenting 
+the provisions of law they allegedly violated. See §§ 1229(a) 
+(1)(A)–(E). Although an alien who receives only paragraph 
+(2) notice must still attend the hearing or face in absentia 
+removal, he can raise issues regarding incomplete notice at 
+that time. That gives the immigration judge a chance to 
+reschedule the hearing to cure any prejudice from the miss­
+ing information. But § 1229a(b)(5)(C)(ii) does not allow 
+aliens to seek rescission of removal orders in perpetuity 
+based on arguments they could have raised in a hearing that 
+they chose to skip. 
+*
+*
+* 
+We affrm the judgment of the Fifth Circuit and reverse 
+the Ninth Circuit's judgment in Garland v. Mendez-Colín. 
+We vacate the Ninth Circuit's judgment in Garland v. Singh, 
+and remand that case for further proceedings consistent with 
+this opinion.2 
+It is so ordered. 
+Justice Jackson, with whom Justice Sotomayor, Jus­
+tice Kagan, and Justice Gorsuch join, dissenting. 
+Although Congress allows the Government to seek re­
+moval of noncitizens in absentia, it tempers that power with 
+process. Mandatory removal of a noncitizen who fails to 
+attend a scheduled removal hearing is available. 8 U. S. C. 
+§ 1229a(b)(5)(A). But to obtain such a removal order, the 
+Government must satisfy certain procedural prerequisites. 
+See ibid. Relevant here, the Government must have pro­
+vided the noncitizen with specifc forms of notice that contain 
+specifc information. Ibid. (referencing §§ 1229(a)(1)–(2)). 
+A noncitizen who has been ordered removed in absentia but 
+has not received the required notice may seek to have the 
+2 The Ninth Circuit's holding that Singh had shown that he failed to 
+receive “notice in accordance with paragraph (1) or (2)” meant that it did 
+not reach his alternative argument that he could seek rescission under 
+§ 1229a(b)(5)(C)(i). 24 F. 4th 1315, 1320 (2020). Neither do we. 
+Page Proof Pending Publication
+
+466 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+removal proceedings reopened and his removal order re­
+scinded. § 1229a(b)(5)(C)(ii). 
+For years, the Government has failed to ensure that one 
+form of required notice—a “notice to appear” (hereinafter 
+NTA)—contains all the information the statute mandates. 
+See § 1229(a)(1). Specifcally, the Government has issued 
+NTAs that lack the exact time (and date) of a noncitizen's 
+removal hearing. Contra, § 1229(a)(1)(G)(i). This conspicu­
+ous omission has twice before garnered our attention in cases 
+concerning a noncitizen's plea for discretionary relief from 
+removal—most recently, just three Terms ago. See Niz-
+Chavez v. Garland, 593 U. S. 155 (2021); Pereira v. Sessions, 
+585 U. S. 198 (2018). And twice over, this Court made clear 
+that when the Government issues an NTA, that document 
+must contain the time-and-place particulars that the statute 
+requires. 
+Today's cases arise because the Government persisted 
+with its practice of issuing facially defective NTAs in the 
+wake of our two prior pronouncements. But, apparently, 
+the third time is the charm, for the majority now fnally 
+blesses the Government's abject noncompliance with the 
+statute's unequivocal command. The Court concludes that a 
+noncitizen whose NTA does not contain the time-and-date 
+information that § 1229(a)(1) requires has no recourse from 
+an in absentia removal order if the Government subse­
+quently provides some followup notice identifying the time 
+and date of the proceeding he missed. Ante, at 450–451. 
+But that holding defes the plain text and context of the stat­
+ute, sidesteps our precedents, and upends the careful in ab­
+sentia removal framework Congress has crafted. So, I re­
+spectfully dissent. 
+I 
+Because a noncitizen may seek rescission only if he “dem­
+onstrates that [he] did not receive notice in accordance with 
+paragraph (1) or (2) of section 1229(a),” § 1229a(b)(5)(C)(ii), 
+I agree with the majority that the central question in this 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+467 
+Jackson, J., dissenting 
+litigation is what it means to receive notice “in accordance 
+with paragraph (1) or (2),” ibid. As the parties frame the 
+issue, the question is whether a noncitizen who has been or­
+dered removed in absentia can seek rescission if the Govern­
+ment initially fails to identify a time and date for the removal 
+hearing, as paragraph (1) requires, but provides such infor­
+mation at a later date, purportedly under paragraph (2).1 
+The majority reads “notice in accordance with paragraph (1) 
+or (2) of section 1229(a),” § 1229a(b)(5)(C)(ii), to preclude a 
+motion to reopen under these circumstances. In my view, 
+the majority's reasoning is fawed and leads to the wrong 
+conclusion. 
+A 
+To understand why, one must frst be clear-eyed about the 
+Government's arguments, and also the majority's assertions. 
+No one disputes that § 1229(a) establishes a mandatory proc­
+ess for the initiation of removal proceedings that compels the 
+Government to provide “written notice” to any noncitizen it 
+intends to remove as inadmissible or deportable. 
+Paragraph (1) states that “written notice (in this section 
+referred to as a `notice to appear') shall be given in person 
+. . . or, if personal service is not practicable, through service 
+by mail.” § 1229(a)(1). That provision then proceeds to list 
+not one or two but seven categories of information that must 
+1 I will assume, arguendo, that rescission is the only legal argument 
+implicated by these facts, given the parties' presentations. It is note­
+worthy, however, that the same core question also arises two subdivisions 
+earlier—under § 1229a(b)(5)(A)—which authorizes the issuance of an in ab­
+sentia removal order in the frst place only “after written notice required 
+under paragraph (1) or (2) of section 1229(a) . . . has been provided to the 
+[noncitizen],” and only if the Government “establishes by clear, unequivo­
+cal, and convincing evidence that the written notice was so provided.” 
+Thus, it is not at all clear that defects on the face of an NTA should be 
+addressed as a matter of reopening and rescission (with the noncitizen 
+bearing the burden) rather than as part of an assessment of the validity 
+of the removal order itself, given the Government's burden of proof and 
+the arguable facial invalidity of the notice. 
+Page Proof Pending Publication
+
+468 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+be “specif[ied]” in the NTA—including “[t]he acts or con­
+duct alleged to be in violation of [the] law,” § 1229(a)(1)(C); 
+the fact that the noncitizen “may be represented by counsel” 
+during the removal proceedings, § 1229(a)(1)(E); and “[t]he 
+time and place at which the proceedings will be held,” 
+§ 1229(a)(1)(G)(i). 
+Paragraph (2) also requires the Government to provide “a 
+written notice” to removable noncitizens under specifed cir­
+cumstances. § 1229(a)(2). But, unlike paragraph (1), that 
+provision applies only “in the case of any change or postpone­
+ment in the time and place of such proceedings.” Ibid. It 
+requires that “a written notice shall be given in person,” or 
+“through service by mail” if “personal service is not practica­
+ble.” Ibid. Paragraph (2) further specifcally identifes the 
+two categories of information that this particular notice must 
+contain: “(i) the new time or place of the proceedings, and 
+(ii) the consequences under section 1229a(b)(5) of this title of 
+failing, except under exceptional circumstances, to attend 
+such proceedings.” Ibid. 
+So far, so good. Everyone agrees up to this point. The 
+dispute here arises because the Government insists that 
+its chronic failure to provide complete NTAs under 
+§ 1229(a)(1)—e. g., notices that contain time-and-date infor­
+mation—is of no moment with respect to any subsequent in 
+absentia removal effort. So long as the Government pro­
+vides the noncitizen with a paragraph (2) notice of the time 
+and date of a removal hearing that the noncitizen subse­
+quently misses, the noncitizen cannot reopen his removal 
+proceeding, the Government claims. 
+Consider the cases before us. As the majority has ex­
+plained, ante, at 452, each of the noncitizens here received a 
+statutorily defcient NTA—defcient because it was missing 
+the time and date of a removal proceeding. The NTAs the 
+Government provided instead stated that information as 
+either “TBD” or “to be set.” App. 10–12, 44–46, 53–54. 
+Both the majority and the Government acknowledge that 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 447 (2024) 
+469 
+Jackson, J., dissenting 
+such notices were defcient under the statute. See ante, at 
+461; Brief for Attorney General 26. Each of the noncitizens 
+later received one or more followup documents that provided 
+time-and-date information for a removal hearing. Each of 
+the noncitizens ultimately failed to attend a hearing noticed 
+by such a followup document and was ordered removed in 
+absentia. And each of the noncitizens then sought to have 
+his in absentia removal order rescinded on grounds of def­
+cient notice. 
+According to the Government, having received notice of 
+the time and date of their removal hearings through a subse­
+quent notice issued per paragraph (2), these noncitizens can­
+not show that they “did not receive notice in accordance with 
+paragraph (1) or (2) of section 1229(a).” § 1229a(b)(5)(C)(ii). 
+Therefore, their removal proceedings cannot be reopened, or 
+their removal orders rescinded. Brief for Attorney General 
+16–17. 
+The majority agrees with this reading of the statute, mak­
+ing three analytical moves to justify its conclusion. One: It 
+declares that, for purposes of § 1229a(b)(5)(C)(ii), receipt of 
+either an NTA or a paragraph (2) notice can suffce to defeat 
+rescission of an in absentia removal order. Ante, at 457–459. 
+The majority similarly reads § 1229a(b)(5)(A), the in absentia 
+removal provision, to allow a noncitizen to be removed in 
+absentia after he is provided with either form of notice. 
+Ibid. (But the majority also appears to realize that, taken 
+“[l]iterally,” this reading would allow a noncitizen to be re­
+moved without recourse whenever he receives a notice to 
+appear, even if the Government later changes the hearing 
+date without telling him. Ante, at 460.) So two: The ma­
+jority declares that the notice “that matters” is the one that 
+informed the noncitizen of the time and date of the hearing 
+he missed. Ante, at 460–461; see also ante, at 460 (explain­
+ing that, under §1229a(b)(5)(A), “ `the written notice' ” the 
+Government must provide “is tied to the singular proceeding 
+missed, and at which the alien was `removed in absentia' ”). 
+
+470 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+Thus, three: The majority concludes that, despite the Gov­
+ernment's provision of a defective NTA, all the noncitizens 
+here “received a proper paragraph (2) notice for the hearings 
+they missed and at which they were ordered removed,” so 
+“they cannot seek rescission of their in absentia removal or­
+ders on the basis of defective notice.” Ante, at 450–451; see 
+also ante, at 461–462. 
+As I explain in Parts I–B and I–C, infra, the primary 
+problem with the majority's statutory analysis is that it 
+unjustifably cleaves the paragraph (2) notice from para­
+graph (1)'s NTA requirement. In the majority's view, the 
+Government can provide the statutorily required notice if it 
+issues either form of notice to a noncitizen, so long as the 
+notice the Government provided and the noncitizen received 
+corresponds with the hearing the noncitizen missed. See 
+ante, at 457–461. But this maneuver misreads the plain text 
+of the statute in at least two critical respects: It ignores the 
+fact that the statute Congress wrote makes an NTA issued 
+under paragraph (1) indispensable, and, relatedly, it disre­
+gards the obviously supporting and secondary role that para­
+graph (2) notices play with respect to this statutory scheme. 
+B 
+The text of § 1229(a) plainly refutes the majority's conten­
+tion that either an NTA under paragraph (1) or a subsequent 
+notice under paragraph (2) suffces because the notice that 
+“matters” for the purpose of in absentia removal is which­
+ever one corresponds to the missed hearing at which removal 
+is ordered. Ante, at 460–461. 
+Paragraph (1) unequivocally states that “[i]n removal pro­
+ceedings under section 1229a of this title,” an NTA “shall be 
+given” to the noncitizen. § 1229(a)(1) (emphasis added). An 
+NTA is “the basis for commencing a grave legal proceeding,” 
+akin to “ `an indictment in a criminal case [or] a complaint in 
+a civil case.' ” Niz-Chavez, 593 U. S., at 163–164 (quoting Tr. 
+of Oral Arg. in Pereira v. Sessions, O. T. 2017, No. 17–459, 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+471 
+Jackson, J., dissenting 
+p. 39; alteration in original). Nothing in the text of § 1229(a) 
+betrays any hint that paragraph (1)'s dictates are optional. 
+And the Government does not contest this; it acknowledges 
+that an NTA under paragraph (1) of § 1229(a) is indispensable 
+because this particular form of notice is what initiates the 
+removal process as a matter of law. Tr. of Oral Arg. 49. 
+Furthermore, as I mentioned previously, a paragraph (1) 
+NTA must contain certain specifc information, all of which 
+Congress apparently thought important for a noncitizen fac­
+ing removal to have at the outset. §§ 1229(a)(1)(A)–(G). 
+Much of the required information is unique to NTAs issued 
+per paragraph (1). See, e. g., §§ 1229(a)(1)(C)–(D) (requir­
+ing notice of the “acts or conduct alleged to be in violation 
+of law” and the “charges against the” noncitizen). Section 
+1229(a)(1) also treats all of the required information 
+equally—none of the listed elements is more or less dispens­
+able than any other. 
+To be sure, two pieces of information that Congress has 
+mandated be provided in an NTA—the time and place of a 
+removal proceeding, § 1229(a)(1)(G)(i), and the consequences 
+of failing to appear, § 1229(a)(1)(G)(ii)—overlap in kind with 
+information that must be provided in a paragraph (2) notice. 
+But that fact does not undermine the mandatory nature of 
+paragraph (1)'s requirements. We have already held that an 
+NTA that does not contain the requisite time-and-place in­
+formation does not qualify as an NTA at all. Pereira, 585 
+U. S., at 202. Nor does an NTA that is defcient in this way 
+become retroactively transformed into one that satisfes 
+§ 1229(a)(1) if the Government backflls that missing infor­
+mation using a later notice. Niz-Chavez, 593 U. S., at 170. 
+Instead, “the government must issue a single statutorily 
+compliant document.” Id., at 163. 
+The indispensability of a complete NTA issued under para­
+graph (1) has consequences for the reasoning the majority 
+puts forward here. It means that providing this particular 
+form of notice always and inevitably “matters” to the in ab­
+Page Proof Pending Publication
+
+472 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+sentia removal process, notwithstanding the majority's effort 
+to hide that ball by directing our attention to whichever no­
+tice “informed the alien of the time and date of the hearing 
+the alien missed, and at which he was ordered removed”— 
+as if that is the notice that counts under the statute. Ante, 
+at 460–461. 
+Put another way, whatever “notice in accordance with 
+paragraph (1) or (2)” might mean in § 1229a(b)(5)(C)(ii), if the 
+Government has to issue an NTA that satisfes paragraph (1), 
+which it does, that language cannot mean the Government 
+can choose to provide either a paragraph (1) or paragraph (2) 
+notice and still be in compliance with the statute, as the 
+majority suggests. And without that “either/or” pillar, the 
+majority's analysis collapses. 
+C 
+The majority's reasoning further suggests that the indis­
+pensability of an NTA per the statute is essentially irrele­
+vant because, for rescission purposes, an incomplete NTA 
+can be cured with a paragraph (2) notice, standing alone. 
+By its nature, however, a paragraph (2) notice cannot stand 
+alone. This is apparent on the face of the relevant statutory 
+provisions, which plainly establish, as the Ninth Circuit held, 
+that “there can be no valid notice under paragraph (2) with­
+out valid notice under paragraph (1).” 24 F. 4th 1315, 1319 
+(2022) (case below). Given this, even if we read § 1229a(b) 
+(5)(C)(ii)'s “paragraph (1) or (2)” language to preclude rescis­
+sion when noncitizens receive either a statutorily compliant 
+NTA under paragraph (1) or a valid hearing notice under 
+paragraph (2), the noncitizens here did not receive either 
+one. The majority's contrary conclusion rests on a mis­
+conception of the nature of the notice that paragraph (2) 
+requires. 
+1 
+Analogizing to another common situation: A paragraph (2) 
+notice is the functional equivalent of a change order. See 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 602 U. S. 447 (2024) 
+473 
+Jackson, J., dissenting 
+1A P. Bruner & P. O'Connor, Construction Law § 4:1, p. 282 
+(2016) (describing a “ `change' ” in the construction context 
+as “ `an alteration to an existing contract requirement con­
+cerning work that is already required to be done' ”). That 
+is what the plain text of § 1229(a)(2) calls for, and it is how a 
+paragraph (2) notice plainly operates. Assuming that the 
+Government has complied with its pre-existing obligation 
+under paragraph (1) to provide written notice of the nonciti­
+zen's duty to appear at removal proceedings at a particular 
+time and place, paragraph (2) requires the Government to 
+issue a supplemental notice “specifying . . . the new time or 
+place of the proceedings” and reiterating the consequences 
+of failing to attend, if sometime after the issuance of the 
+NTA the time or place of the scheduled removal hearing 
+changes. § 1229(a)(2) (emphasis added). 
+The analogy to change orders in the construction context 
+illuminates the unavoidably interconnected relationship be­
+tween a compliant NTA issued under paragraph (1) and the 
+notice the Government must provide under paragraph (2). 
+Ask any homebuilder. A customer who wants a new den, 
+for example, submits a written request to the builder that 
+specifes the details of her order—e. g., construct a 12- by 
+12-foot room with two 48-inch fxed picture windows at a 
+designated spot on the back of her house. Those are the 
+indispensable terms of the mandate. But, if the customer 
+later changes her mind about some aspect of this project— 
+say, she wants the windows moved, or she wants the room 
+enlarged to 16 by 16 feet—she submits a written change 
+order notifying the builder of those particular alterations. 
+The change order supplements the original request; it does 
+not entirely supplant it. And the change order supersedes 
+only the particular terms of the initial directive that have 
+been changed. Consequently, the change order is only cog­
+nizable in relation to what came before. 
+So it is here. As the majority concedes, Congress has 
+mandated that the Government, frst, provide noncitizens 
+
+474 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+with a written NTA that specifcally and comprehensively 
+lists the terms of the removal proceeding mandate. That 
+notice has to include the time and place of the noticed re­
+moval proceeding. § 1229(a)(1)(G)(i). Congress has also au­
+thorized the Government to make certain adjustments to 
+that notice under specifed circumstances, but only if the 
+Government similarly provides a written notice of those al­
+tered terms. That is the work of a notice issued under para­
+graph (2). And, just as in the construction context, a para­
+graph (2) notice of the changed time or place has no effect 
+independent of the original directive. A notice of change 
+under paragraph (2) issues only if there is a changed circum­
+stance, and it exists merely to update the terms that were 
+previously set. 
+2 
+Setting aside analogous circumstances and using a diction­
+ary to bear down on the words Congress used in § 1229(a)(2) 
+leads to the same result. As a reminder, paragraph (2) pro­
+vides that “[i]n removal proceedings . . . , in the case of any 
+change or postponement in the time and place of such pro­
+ceedings, . . . a written notice shall be given in person” to 
+the noncitizen, and that notice must “specif[y] . . . the new 
+time or place of the proceedings” and the consequences of 
+failing to attend. §§ 1229(a)(2)(A)(i)–(ii) (emphasis added). 
+Homing in on the word “change,” the majority frst accuses 
+the noncitizens of “tak[ing] too narrow a reading of th[at] 
+term,” since “change” can mean simply “ `to replace,' ” “ `to 
+switch,' ” “to `alter,' or to `modify.' ” Ante, at 462. As fur­
+ther support for this broad interpretation of change, the ma­
+jority points to “any”—the provision says “any change”— 
+which, according to the majority, suggests that Congress 
+contemplated that the paragraph (1) NTA could omit the 
+time and place of the removal proceeding, with the para­
+graph (2) notice “chang[ing]” that “TBD” to the actual time 
+and place. Ante, at 463. 
+But the modifer “any” does not justify the majority's over-
+broad reading of “change or postponement” in § 1229(a) 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+475 
+Jackson, J., dissenting 
+(2)(A). It is true that “the word `any' has `an expansive 
+meaning.' ” Patel v. Garland, 596 U. S. 328, 338 (2022) (quot­
+ing Babb v. Wilkie, 589 U. S. 399, 405, n. 2 (2020)). But 
+“any” does work under the noncitizens' reading of paragraph 
+(2), too. It helps cover all potential changes to the pre­
+existing time and place that paragraph (1) requires the Gov­
+ernment to designate. Especially when one considers the 
+entire operative phrase—“any change or postponement in 
+the time and place of such proceedings”—“any change” 
+makes clear that notice must also issue when a hearing time 
+is moved up, or when a venue is switched from one location 
+to another. 
+In any event, the majority does not, and cannot, dispute 
+that an ordinary meaning of “change” is “the action of replac­
+ing something with something else of the same kind or with 
+something that serves as a substitute.” Webster's Third 
+New International Dictionary 374 (1993). The notice provi­
+sions at issue here refect that kind of substitution on their 
+face, because § 1229(a) mandates in paragraph (1) that the 
+Government provide noncitizens with a complete NTA (with 
+the time and place for the removal proceeding included) at 
+the outset. The paragraph (2) notice only comes into play 
+“in the case of any change . . . in the time and place of 
+such proceedings.” § 1229(a)(2)(A). Thus, among the vari­
+ous defnitional possibilities the majority offers, it is this 
+defnition that makes the most sense of this particular stat­
+ute. See Abramski v. United States, 573 U. S. 169, 179, n. 6 
+(2014) (“[C]ourt[s] should not interpret each word in a stat­
+ute with blinders on, refusing to look at the word's function 
+within the broader statutory context”). 
+In short, use of the word “change” in the context of a stat­
+ute that frst requires something—e. g., the setting of a time 
+and place—presumes the earlier existence of that thing to 
+be swapped out. The ordinary meaning of “postponement,” 
+too, requires the previous selection of a particular date or 
+time. See Webster's Third New International Dictionary, at 
+1773 (defning “postpone” as “to hold back to a later time”). 
+Page Proof Pending Publication
+
+476 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+And the word “new” runs in the same circles. “New” can 
+mean “other than the former or old.” Id., at 1522. So a 
+“new” time likewise implies the earlier existence of an 
+“old” time. 
+Thus, dictionary defnitions indicate that in order for a no­
+tice issued under paragraph (2) to “change” the time or place 
+of a proceeding to a “new” time or place, there must have 
+been an old time or place to begin with. If the NTA did not 
+comply with the statute in this way, then it is impossible for 
+paragraph (2) notice to comply, either. 
+3 
+Even so, defnitions alone often “do not equip us to re­
+solve” a case. Kucana v. Holder, 558 U. S. 233, 245 (2010). 
+We have long understood that words with “ `many dictionary 
+defnitions . . . must draw [their] meaning[s] from . . . con­
+text.' ” Ibid. (quoting Ardestani v. INS, 502 U. S. 129, 135 
+(1991)). “[S]tatutes must be read as a whole,” and, here, 
+notice under paragraph (2) “does not exist in a vacuum.” 
+Guam v. United States, 593 U. S. 310, 316 (2021) (internal 
+quotation marks omitted). 
+That brings me back to where I started—with the obser­
+vation that, when read in context, paragraph (2) requires a 
+preceding written notice (like a standard change order does) 
+and thus presupposes a compliant NTA. Not to belabor the 
+point, but it bears noting that all the relevant context clues 
+support this reading of the statute. 
+For example, notice under paragraph (2) follows the re­
+quired NTA under paragraph (1) in the text of the statute. 
+See § 1229(a). This ordering suggests the central role of 
+NTAs in Congress's removal scheme, with paragraph (2) no­
+tices playing only a supporting part. Moreover, while para­
+graph (2) notices can and do work together with NTAs to 
+convey essential information to noncitizens, they are hardly 
+a team of equals. Also, a paragraph (2) notice, which con­
+tains far less content than an NTA, is patently supplemen­
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+477 
+Jackson, J., dissenting 
+tal insofar as it may not ever need to be issued. See 
+§ 1229(a)(2)(A). 
+The majority errs in interpreting “notice in accordance 
+with paragraph (1) or (2),” § 1229a(b)(5)(C)(ii), by treating 
+“or” as a standard disjunctive construct. See ante, at 457. 
+That might generally be so. But here, the word “or” simply 
+cannot be taken to mean that either notice in accordance 
+with paragraph (1) or in accordance with paragraph (2) suf­
+fces under the statute because those two notices are by no 
+means equivalent alternatives, as I have explained.2 
+It is clear on the face of this statute, then, that a paragraph 
+(2) notice merely alters information that Congress has re­
+quired be given previously, and, “especially when properly 
+read in sequence as integral parts of a whole,” the statute 
+plainly “anticipates a predicate” NTA that complies with 
+Congress's mandate. Guam, 593 U. S., at 317 (internal quo­
+tation marks and alteration omitted). As its “text and place 
+within [the] comprehensive statutory scheme” show, id., at 
+320, a notice under paragraph (2) cannot exist in the absence 
+of a compliant NTA. The statute simply does not contem­
+plate it. 
+II 
+Our precedents in Pereira and Niz-Chavez addressed the 
+relevant notice provisions and what they require of the Gov­
+ernment, yet the majority barely pauses to acknowledge this. 
+Both Pereira and Niz-Chavez concerned noncitizens' eligibil­
+ity for a form of discretionary relief called cancellation of 
+removal and the operation of the so-called stop-time rule. 
+See §§ 1229b(b)(1), (d)(1)(A). Noncitizens who have accrued 
+2 Considered in context, the word “or” in § 1229a(b)(5)(C)(ii) actually re­
+inforces both the centrality of an NTA and the conditional nature of a 
+paragraph (2) notice. Recall that a paragraph (2) notice is required only 
+in the event of a change or postponement of the removal proceeding. 
+§1229(a)(2). The “or” in “paragraph (1) or (2)” thus expresses—in a way 
+that “and” could not—that a notice under paragraph (2) will sometimes, 
+but not always, be required. 
+Page Proof Pending Publication
+
+478 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+10 years of continuous physical presence in the United States 
+may be eligible for cancellation of removal, but under the 
+stop-time rule, that period of continuous physical presence 
+ends when the noncitizen “is served a notice to appear under 
+section 1229(a).” Ibid. Then as now, the Government had 
+failed to send noncitizens NTAs that included time-and-place 
+information as § 1229(a)(1) requires. 
+In Pereira, we held that “[a] notice that does not inform a 
+noncitizen when and where to appear for removal proceed­
+ings is not a `notice to appear under section 1229(a)' and 
+therefore does not trigger the stop-time rule.” 585 U. S., at 
+202. In Niz-Chavez, we rejected the Government's view 
+that a defcient paragraph (1) NTA is “complete and the stop-
+time rule kicks in whenever [the Government] fnishes deliv­
+ering all the statutorily prescribed information.” 593 U. S., 
+at 160. Rather, we said, the Government needs to supply 
+noncitizens with a single, fully compliant NTA if it wishes to 
+take advantage of the stop-time rule. Id., at 172. 
+In both of those cases, we interpreted the notice regime 
+just as the noncitizens do here. As the majority acknowl­
+edges, ante, at 463, we specifcally observed in Pereira that, 
+“[b]y allowing for a `change or postponement' of the proceed­
+ings to a `new time or place,' paragraph (2) presumes that 
+the Government has already served a `notice to appear under 
+section 1229(a)' that specifed a time and place as required 
+by § 1229(a)(1)(G)(i).” 585 U. S., at 210. “Otherwise,” we 
+said, “there would be no time or place to `change or post­
+pone.' ” Ibid. (alteration omitted). We thought then that 
+the Government could only “exercise that statutory author­
+ity after it has served a notice to appear specifying the time 
+and place of the removal proceedings.” Id., at 218 (empha­
+sis added). 
+In Niz-Chavez, we doubled down. We recognized that 
+“Congress expressly contemplated [the] possibility” that the 
+Government would “issu[e] notices to appear with all the in­
+formation § 1229(a)(1) requires—and then amen[d] the time 
+or place information if circumstances required it” using 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+479 
+Jackson, J., dissenting 
+§ 1229(a)(2). 593 U. S., at 159. We explained that “once the 
+government serves a compliant notice to appear, [the stat­
+ute] permits it to send a supplemental notice amending the 
+time and place of an alien's hearing if logistics require a 
+change.” Id., at 170 (emphasis added). We also suggested 
+that an alternative reading would effectively nullify Con­
+gress's work to change the notice regime from one permit­
+ting the Government to specify the time and place for a non­
+citizen's hearing “ `in the order to show cause or otherwise,' ” 
+to one where “time and place information must be included 
+in a notice to appear, not `or otherwise.' ” Id., at 167 (quot­
+ing § 1252b(a)(2)(A) (1994 ed.); emphasis in original). That 
+point is as salient now as it was then. 
+Our statements in Pereira and Niz-Chavez demonstrate 
+that the Court twice before thought obvious the reading of 
+the statute the noncitizens here propose. Yet the majority 
+now cries dicta. The Court says the meaning of § 1229(a)(2) 
+was not at issue in Pereira, which concerned the “ `narrow 
+question' ” of the operation of the stop-time rule. Ante, at 
+463. To be sure, “we are not necessarily bound by dicta 
+should more complete argument demonstrate that the dicta 
+is not correct.” Kirtsaeng v. John Wiley & Sons, Inc., 568 
+U. S. 519, 548 (2013). Here, however, “more complete argu­
+ment” has served only to confrm our previous statements. 
+The argument the majority accepts today brushes aside 
+what we said in Pereira without explaining why our state-
+ments—which are due a modicum of respect in any event, 
+see Cohens v. Virginia, 6 Wheat. 264, 399 (1821)—were mis­
+taken. Addressing Niz-Chavez in only a footnote, the ma­
+jority maintains that our observation that paragraph (2) no­
+tices allow the Government to change a “chosen time and 
+place in the NTA . . . remains true even if there are other 
+instances in which paragraph (2) notices may issue.” Ante, 
+at 464, n. 1. But that assertion simply fails to engage with 
+the antecedent point—that Congress expected the Govern­
+ment to issue compliant NTAs frst—and the implications it 
+has for the interpretation of § 1229(a)(2). 
+Page Proof Pending Publication
+
+480 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+And, in the end, we were not wrong. Under the uncom­
+plicated statutory reading that Pereira and Niz-Chavez 
+endorsed, the noncitizens here are not precluded from seek­
+ing rescission of their in absentia removal orders, because 
+§ 1229a(b)(5)(C)(ii) permits “a motion to reopen [removal pro­
+ceedings] fled at any time” if the noncitizen can demonstrate 
+that he “did not receive notice in accordance with paragraph 
+(1) or (2)” of § 1229(a). Neither form of notice was provided 
+under the circumstances presented here. As all agree, none 
+of the noncitizens ever received a notice in accordance with 
+paragraph (1). See Pereira, 585 U. S., at 202. And because 
+a paragraph (2) notice presumes a statutorily compliant para­
+graph (1) notice, none of the noncitizens received notice in 
+accordance with paragraph (2), either. That is true no mat­
+ter how many would-be paragraph (2) notices the Govern­
+ment sent.3 
+III 
+One fnal faw bears mentioning. By snipping the thread 
+that connects the notices Congress required in para­
+graphs (1) and (2) of § 1229(a), today's decision mangles the 
+broader statutory scheme. 
+A 
+The long and short of this critique is that reading the stat­
+ute in the way the majority does fails to fully account for 
+Congress's objectives when it comes to removal procedures, 
+which have long included ensuring that noncitizens facing 
+removal receive notice. The Government's statutory obliga­
+tion to provide notice in the removal context has been a cru­
+cial aspect of federal immigration policy since at least the 
+early 1950s. To this end, the Immigration and Nationality 
+Act (INA) of 1952 specifcally provided that a noncitizen 
+must be “given a reasonable opportunity to be present at 
+3 By the same logic, the Government should not have been able to obtain 
+the noncitizens' in absentia removal orders under § 1229a(b)(5)(A) in the 
+frst place. 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+481 
+Jackson, J., dissenting 
+[the] proceeding” in which his deportability or removability 
+is to be determined. § 242(b), 66 Stat. 209, codifed at 8 
+U. S. C. § 1252(b) (1952 ed.). With respect to in absentia re­
+moval, the INA further provided that if the noncitizen “with­
+out reasonable cause fail[ed] or refuse[d] to attend or remain 
+in attendance,” a “special inquiry offcer” could “proceed to 
+a determination in like manner as if the alien were pres­
+ent.” Ibid. 
+Notably, at that time, an immigration offcer's decision to 
+remove a noncitizen in absentia was discretionary. Ibid. 
+In 1990, however, Congress amended the INA to provide, in 
+certain circumstances, for mandatory in absentia deportation 
+of noncitizens who failed to appear for their proceedings. 
+See Immigration Act of 1990, § 545(a), 104 Stat. 5061–5065, 
+codifed at 8 U. S. C. § 1252b(c)(1) (1994 ed.). Nonetheless, 
+the Government still routinely encountered “[p]rocedural 
+[i]ssues” in its efforts to remove inadmissible or deportable 
+noncitizens. H. R. Rep. No. 104–469, pt. 1, p. 122 (1996). 
+Those issues included deportable or inadmissible noncitizens 
+sometimes “frustrat[ing] removal through taking advantage 
+of certain procedural loopholes” in the process. For exam­
+ple, some noncitizens facing removal would “simply fail to 
+appear for their deportation hearing,” and “some immigra­
+tion judges . . . decline[d] to exercise their authority to order 
+an alien deported in absentia” due to “lapses (perceived or 
+genuine) in the procedures for notifying aliens of deportation 
+proceedings.” Ibid.4 
+4 This Court has previously described the notice regime of that era. 
+For example, the Government back then initiated removal proceedings by 
+issuing a written notice called an “ `order to show cause.' ” Niz-Chavez 
+v. Garland, 593 U. S. 155, 167 (2021). By statute, the Government was 
+permitted to specify the time and place for a noncitizen's hearing “ `in the 
+order to show cause or otherwise.' ” Ibid. (citing 8 U. S. C. § 1252b(a) 
+(2)(A) (1994 ed.); emphasis in original). But this statutory language pro­
+vided fexibility, and meant that “orders to show cause did not necessarily 
+include time-and-place information.” Pereira v. Sessions, 585 U. S. 198, 
+214, n. 9 (2018). 
+Page Proof Pending Publication
+
+482 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+Congress endeavored to address these kinds of problems, 
+among other things, when it established the mandatory in 
+absentia removal provisions that govern these cases as part 
+of the Illegal Immigration Reform and Immigrant Responsi­
+bility Act of 1996 (IIRIRA). See § 304(a), 110 Stat. 3009– 
+587 to 3009–590; see also 8 U. S. C. §§ 1229(a), 1229a. Nota­
+bly, however, Congress did not absolve the Government of 
+its obligation to provide notice of removal proceedings. Nor 
+did it make receipt of notice irrelevant to whether a nonciti­
+zen who does not show up to his hearing can later contest 
+his removal. To the contrary, notice features prominently 
+in IIRIRA's in absentia removal process—it is specifcally 
+mentioned in four of the fve statutory subdivisions that con­
+stitute Congress's in absentia mandatory removal direc­
+tives.5 
+And, rather than devising a process in which a non-
+citizen who misses his hearing must be removed regardless, 
+Congress has made clear that the consequences for failing 
+to appear for scheduled removal proceedings can turn on 
+whether notice was provided, or received, under the terms 
+of the statute. See, e. g., § 1229a(b)(5)(C)(ii). 
+B 
+The resulting in absentia removal scheme constitutes a 
+balancing of interests and obligations that is well within Con­
+gress's policy prerogatives. Congress has also clearly ex­
+pressed its intent in this regard, for when paragraphs (1) and 
+(2) of § 1229(a) are read naturally, in context, and with an 
+understanding of Congress's objectives, the entire scheme 
+fows seamlessly. 
+5 See § 1229a(b)(5)(A) (authorizing in absentia removal only for nonciti­
+zens who have been provided “written notice required under paragraph 
+(1) or (2) of section 1229(a)”); (B) (requiring “[n]o written notice” before in 
+absentia removal if a noncitizen failed to provide his address); (C) (permit­
+ting motions to reopen at any time if a noncitizen demonstrates that he 
+“did not receive notice in accordance with paragraph (1) or (2) of section 
+1229(a)”); (D) (limiting judicial review to, inter alia, the “validity of the 
+notice provided to the” noncitizen). 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+483 
+Jackson, J., dissenting 
+To recap: If the Government issues, and the noncitizen re­
+ceives, the statutorily required notice—i. e., the notice man­
+dated by paragraph (1) of § 1229(a), or, when necessary, by 
+paragraphs (1) and (2)—yet the noncitizen fails to appear at 
+the scheduled removal proceeding, she is subject to a manda­
+tory, nonrescindable removal order. But if the Government 
+fails to provide notice in accordance with the statute, the in 
+absentia removal order is subject to reconsideration, mean­
+ing that, upon request, the noncitizen's removal proceedings 
+may be reopened.6 
+This symmetry of notice-related mandates and account­
+ability incentivizes both noncitizens and the Government to 
+follow Congress's dictates. It also facilitates effcient re­
+moval of deportable and inadmissible noncitizens while simul­
+taneously preserving the fairness and procedural integrity of 
+the removal process in individual cases. The majority's in­
+terpretation, which basically amounts to a refusal to accept 
+these policy choices, supplants this dual objective. 
+Indeed, and perhaps most concerning, under the majority's 
+reading of the statutory provisions at issue here, Congress's 
+goals are plainly thwarted, for a noncitizen may be removed 
+in absentia even if the Government fails to provide him with 
+information that complies in both form and substance with 
+Congress's commands. The removal scheme's orderly pro­
+gression actually breaks down when the Government fails, 
+in systemic fashion, to send statutorily compliant NTAs. 
+And for years, that is exactly what has happened, because 
+the NTAs that the Government routinely issued lacked the 
+time, date, or place of a noncitizen's initial removal hearing. 
+Brief for Attorney General 50. 
+6 It is far from clear that rescission is automatic under the statute. See 
+§ 1229a(b)(5)(C)(ii) (providing that “[s]uch an order may be rescinded” (em­
+phasis added)). Relevant regulations, too, give an immigration judge 
+“discretion to deny a motion to reopen even if the moving party has estab­
+lished a prima facie case for relief.” 8 CFR § 1003.23(b)(3) (2021). But 
+that question is not before the Court. 
+Page Proof Pending Publication
+
+484 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+Rather than just complying with § 1229(a)'s notice require­
+ments, the Government now urges us to interpret § 1229a(b) 
+(5)(C)(ii) to preclude reopening of certain in absentia removal 
+proceedings, out of a worry that “hundreds of thousands” of 
+individuals who have “been ordered removed in absentia 
+would be able to undo those orders” under the noncitizens' 
+reading of the statute. 
+Ibid. But this is a problem of 
+the Government's own making. And it is completely within 
+the Government's power to fx. At the very least, it seems 
+wildly counterintuitive for this Court to adopt the Govern­
+ment's permissive reading of the statute—in contravention 
+of its plain text—so as to help the Government avoid the 
+prescribed consequences of its chronic noncompliance with 
+Congress's mandates. 
+There is also no rational limiting principle. Today, the 
+Government opts to omit from the NTA the time and date of 
+the removal proceeding. The majority now says that's no 
+problem—the Government may nevertheless seek and re­
+ceive binding in absentia removal so long as the noncitizen 
+received a paragraph (2) notice that flled in the blanks. See 
+ante, at 458–460, 461–462. But what prevents the Govern­
+ment from removing a noncitizen whose notice to appear is 
+defcient in other critical respects? The “next chapter in the 
+same story,” Niz-Chavez, 593 U. S., at 159, might involve a 
+noncitizen whose notice to appear also failed to inform her 
+that she can be represented by counsel in removal proceed­
+ings. See § 1229(a)(1)(E). That information is required only 
+in paragraph (1) notices, not paragraph (2) notices. By the 
+majority's logic, a noncitizen in that position could be ordered 
+removed in absentia and barred from seeking rescission of 
+her order without ever being informed of her ability to be 
+represented by an attorney. Even the Government has con­
+ceded that nothing in its reading of the statute prevents that 
+outcome. See Tr. of Oral Arg. 17–21, 50–51. 
+One can imagine other troubling scenarios; for example, a 
+notice to appear that omits the charges against a noncitizen. 
+Page Proof Pending Publication
+
+Cite as: 602 U. S. 447 (2024) 
+485 
+Jackson, J., dissenting 
+See § 1229(a)(1)(D). That information, too, is required only 
+in a paragraph (1) notice. If a noncitizen receives such a 
+defective NTA followed by a purported paragraph (2) notice 
+and fails to attend her hearing, may she be removed in ab­
+sentia having never learned the charges against her? The 
+Government assures us that statutory safeguards prevent 
+that outcome at the very least. It says that in those circum­
+stances, it could not satisfy its burden of proving to an immi­
+gration judge by “ `clear, unequivocal, and convincing evi­
+dence' ” that the noncitizen is removable. Reply Brief 23 
+(quoting § 1229a(b)(5)(A)). But what if the removal hearing 
+is held in absentia, and the Government simply informs the 
+immigration judge of the charges against the noncitizen at 
+that time? Would it matter that the absent noncitizen was 
+kept completely in the dark about the charges? The major­
+ity gives no answer, other than that noncitizens “could have 
+raised [this issue] in a hearing that they chose to skip.” 
+Ante, at 465. 
+The majority waves away these legitimate concerns about 
+how far the Government can go in deviating from what 
+§ 1229(a)(1) or (2) requires, by blithely declaring that today's 
+decision does not “free” the Government of its obligation to 
+provide a compliant NTA. Ibid. But it is hard to square 
+that statement with what is actually happening on the 
+ground. The Government has already fouted its NTA obli­
+gation for years now. Though the Court might not be ex­
+pressly authorizing this state of affairs, today's blunting of 
+the statutory consequence for the Government's systemic 
+failure to comply with § 1229(a) removes any possible incen­
+tive for the Government to change course now. 
+Finally, the majority says that a noncitizen who receives a 
+noncompliant NTA followed by a paragraph (2) notice can 
+always “attend the hearing” to protest the defcient NTA. 
+Ibid. That is entirely beside the point. Congress put the 
+burden on the Government to send complete NTAs to noncit­
+izens facing removal every time it initiates a removal pro­
+Page Proof Pending Publication
+
+486 
+CAMPOS-CHAVES v. GARLAND 
+Jackson, J., dissenting 
+ceeding. Instead of requiring the Government to shoulder 
+that burden, the majority effectively shifts it onto the noncit­
+izens—individuals perhaps unfamiliar with this country and 
+its laws—tasking them with the responsibility of addressing 
+the Government's mistakes. That is not the statute Con­
+gress wrote. 
+*
+*
+* 
+When the Government issues an NTA under paragraph (1) 
+that lacks time and date information but follows up with a 
+notice under paragraph (2) that sets the time and date of a 
+removal hearing that the noncitizen subsequently misses, I 
+fully understand the instinct to conclude that the Govern­
+ment's initial lack of compliance was insignifcant. Some 
+might even think it unfair that noncitizens could seek rescis­
+sion of their removal orders based on an initial notice that 
+seems only technically defective, given the Government's 
+subsequent action. My response to them is simple: Con­
+gress thought otherwise. The statute it wrote specifcally 
+establishes the what, when, and how of the notice that is 
+due to noncitizens facing removal. The statute also allows 
+noncitizens who have been ordered removed in absentia to 
+seek rescission of the removal order if the required notice is 
+not received. I can no more judge that policy decision than 
+I can change it. Today, the Court makes the unfortunate 
+mistake of doing both. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
diff --git a/corpus/law/text/ee8242a23e1c17ce.txt b/corpus/law/text/ee8242a23e1c17ce.txt
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+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+1 
+Cite as: 595 U. S. ____ (2021) 
+Per Curiam 
+SUPREME COURT OF THE UNITED STATES 
+CITY OF TAHLEQUAH, OKLAHOMA, ET AL. v. AUSTIN 
+P. BOND, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF 
+DOMINIC F. ROLLICE, DECEASED 
+ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 
+STATES COURT OF APPEALS FOR THE TENTH CIRCUIT 
+No. 20–1668. Decided October 18, 2021
+ PER CURIAM. 
+On August 12, 2016, Dominic Rollice’s ex-wife, Joy, called 
+911. Rollice was in her garage, she explained, and he was 
+intoxicated and would not leave.  Joy requested police as­
+sistance; otherwise, “it’s going to get ugly real quick.”  981 
+F. 3d 808, 812 (CA10 2020).  The dispatcher asked whether 
+Rollice lived at the residence.  Joy said he did not but ex­
+plained that he kept tools in her garage. 
+Officers Josh Girdner, Chase Reed, and Brandon Vick re­
+sponded to the call.  All three knew that Rollice was Joy’s
+ex-husband, was intoxicated, and would not leave her 
+home. 
+Joy met the officers out front and led them to the side 
+entrance of the garage.  There the officers encountered Rol­
+lice and began speaking with him in the doorway.  Rollice 
+expressed concern that the officers intended to take him to
+jail; Officer Girdner told him that they were simply trying
+to get him a ride. Rollice began fidgeting with something
+in his hands and the officers noticed that he appeared nerv­
+ous. Officer Girdner asked if he could pat Rollice down for 
+weapons. Rollice refused. 
+Police body-camera video captured what happened next.
+As the conversation continued, Officer Girdner gestured 
+with his hands and took one step toward the doorway, caus­
+ing Rollice to take one step back. Rollice, still conversing
+with the officers, turned around and walked toward the 
+back of the garage where his tools were hanging over a 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+2 
+CITY OF TAHLEQUAH v. BOND 
+Per Curiam 
+workbench.  Officer Girdner followed, the others close be­
+hind. No officer was within six feet of Rollice.  The video is 
+silent, but the officers stated that they ordered Rollice to 
+stop. Rollice kept walking.  He then grabbed a hammer
+from the back wall over the workbench and turned around 
+to face the officers. Rollice grasped the handle of the ham­
+mer with both hands, as if preparing to swing a baseball 
+bat, and pulled it up to shoulder level. The officers backed 
+up, drawing their guns. At this point the video is no longer
+silent, and the officers can be heard yelling at Rollice to 
+drop the hammer.
+He did not.  Instead, Rollice took a few steps to his right, 
+coming out from behind a piece of furniture so that he had 
+an unobstructed path to Officer Girdner.  He then raised 
+the hammer higher back behind his head and took a stance 
+as if he was about to throw the hammer or charge at the 
+officers. In response, Officers Girdner and Vick fired their 
+weapons, killing Rollice.
+Rollice’s estate filed suit against, among others, Officers
+Girdner and Vick, alleging that the officers were liable un­
+der 42 U. S. C. §1983, for violating Rollice’s Fourth Amend­
+ment right to be free from excessive force. The officers 
+moved for summary judgment, both on the merits and on 
+qualified immunity grounds.  The District Court granted 
+their motion. Burke v. Tahlequah, 2019 WL 4674316, *6 
+(ED Okla., Sept. 25, 2019).  The officers’ use of force was 
+reasonable, it concluded, and even if not, qualified immun­
+ity prevented the case from going further.  Ibid. 
+A panel of the Court of Appeals for the Tenth Circuit re­
+versed. 981 F. 3d, at 826.  The Court began by explaining 
+that Tenth Circuit precedent allows an officer to be held li­
+able for a shooting that is itself objectively reasonable if the 
+officer’s reckless or deliberate conduct created a situation 
+requiring deadly force. Id., at 816. Applying that rule, the
+Court concluded that a jury could find that Officer Girdner’s 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+3 
+Cite as: 595 U. S. ____ (2021) 
+Per Curiam 
+initial step toward Rollice and the officers’ subsequent “cor­
+nering” of him in the back of the garage recklessly created 
+the situation that led to the fatal shooting, such that their
+ultimate use of deadly force was unconstitutional.  Id., at 
+823. As to qualified immunity, the Court concluded that
+several cases, most notably Allen v. Muskogee, 119 F. 3d 837 
+(CA10 1997), clearly established that the officers’ conduct 
+was unlawful. 981 F. 3d, at 826.  This petition followed.
+We need not, and do not, decide whether the officers vio­
+lated the Fourth Amendment in the first place, or whether
+recklessly creating a situation that requires deadly force
+can itself violate the Fourth Amendment.  On this record, 
+the officers plainly did not violate any clearly established 
+law. 
+The doctrine of qualified immunity shields officers from
+civil liability so long as their conduct “does not violate 
+clearly established statutory or constitutional rights of
+which a reasonable person would have known.”  Pearson v. 
+Callahan, 555 U. S. 223, 231 (2009).  As we have explained,
+qualified immunity protects “‘all but the plainly incompe­
+tent or those who knowingly violate the law.’”  District of 
+Columbia v. Wesby, 583 U. S. ___, ___ –___ (2018) (slip op., 
+at 13–14) (quoting Malley v. Briggs, 475 U. S. 335, 341 
+(1986)).
+We have repeatedly told courts not to define clearly es­
+tablished law at too high a level of generality. See, e.g., 
+Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011).  It is not 
+enough that a rule be suggested by then-existing precedent;
+the “rule’s contours must be so well defined that it is ‘clear 
+to a reasonable officer that his conduct was unlawful in the 
+situation he confronted.’ ” Wesby, 583 U. S., at ___ (slip op., 
+at 14) (quoting Saucier v. Katz, 533 U. S. 194, 202 (2001)). 
+Such specificity is “especially important in the Fourth 
+Amendment context,” where it is “sometimes difficult for an 
+officer to determine how the relevant legal doctrine, here 
+excessive force, will apply to the factual situation the officer 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+  
+ 
+ 
+ 
+ 
+4 
+CITY OF TAHLEQUAH v. BOND 
+Per Curiam 
+confronts.” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per 
+curiam) (internal quotation marks omitted). 
+The Tenth Circuit contravened those settled principles
+here. Not one of the decisions relied upon by the Court of 
+Appeals—Estate of Ceballos v. Husk, 919 F. 3d 1204 (CA10
+2019), Hastings v. Barnes, 252 Fed. Appx. 197 (CA10 2007), 
+Allen, 119 F. 3d 837, and Sevier v. Lawrence, 60 F. 3d 695 
+(CA10 1995)—comes close to establishing that the officers’ 
+conduct was unlawful.  The Court relied most heavily on 
+Allen. But the facts of Allen are dramatically different from 
+the facts here.  The officers in Allen responded to a potential
+suicide call by sprinting toward a parked car, screaming at 
+the suspect, and attempting to physically wrest a gun from
+his hands. 119 F. 3d, at 841.  Officers Girdner and Vick, by 
+contrast, engaged in a conversation with Rollice, followed 
+him into a garage at a distance of 6 to 10 feet, and did not 
+yell until after he picked up a hammer.  We cannot conclude 
+that Allen “clearly established” that their conduct was reck­
+less or that their ultimate use of force was unlawful. 
+The other decisions relied upon by the Court of Appeals 
+are even less relevant. As for Sevier, that decision merely
+noted in dicta that deliberate or reckless preseizure conduct
+can render a later use of force excessive before dismissing 
+the appeal for lack of jurisdiction.  See 60 F. 3d, at 700–701. 
+To state the obvious, a decision where the court did not even 
+have jurisdiction cannot clearly establish substantive con­
+stitutional law. Regardless, that formulation of the rule is
+much too general to bear on whether the officers’ particular
+conduct here violated the Fourth Amendment. See al-Kidd, 
+563 U. S., at 742.  Estate of Ceballos, decided after the 
+shooting at issue, is of no use in the clearly established in­
+quiry. See Brosseau v. Haugen, 543 U. S. 194, 200, n. 4 
+(2004) (per curiam). And Hastings, an unpublished deci­
+sion, involved officers initiating an encounter with a poten­
+tially suicidal individual by chasing him into his bedroom,
+screaming at him, and pepper-spraying him.  252 Fed. 
+
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+5 
+Cite as: 595 U. S. ____ (2021) 
+Per Curiam 
+Appx., at 206.  Suffice it to say, a reasonable officer could 
+miss the connection between that case and this one. 
+Neither the panel majority nor the respondent has iden­
+tified a single precedent finding a Fourth Amendment vio­
+lation under similar circumstances.  The officers were thus 
+entitled to qualified immunity.
+The petition for certiorari and the motions for leave to file 
+briefs amici curiae are granted, and the judgment of the
+Court of Appeals is reversed. 
+It is so ordered. 
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+Deliberative constitutionalism ‘without shortcuts’: On the deliberative potential of Cristina Lafont’s judicial review theory – CORRIGENDUM
+
+CORRIGENDUM
+Deliberative constitutionalism ‘without
+shortcuts’: On the deliberative potential of
+Cristina Lafont’s judicial review theory –
+CORRIGENDUM
+C. Ignacio Giuffré
+DOI: https://doi.org/10.1017/S2045381722000211; Published by Cambridge University
+Press, 13 December 2022.
+In the original publication of this article, the author’s surname was misspelled as ‘Guiffré’,
+rather than ‘Giuffré’. The article has been updated to correct the error and this corrigen-
+dum published.
+Reference
+Giuffré, C. Ignacio. “Deliberative Constitutionalism ‘without Shortcuts’: On the Deliberative Potential of
+Cristina Lafont’s Judicial Review Theory.” Global Constitutionalism 12, no. 2 (2023): 215–33. https://doi.
+org/10.1017/S2045381722000211.
+Cite this article: Giuffré CI. 2026. Deliberative constitutionalism ‘without shortcuts’: On the deliberative
+potential of Cristina Lafont’s judicial review theory – CORRIGENDUM. Global Constitutionalism 15: 392,
+doi:10.1017/S2045381726100306
+© The Author(s), 2026. Published by Cambridge University Press. This is an Open Access article, distributed under the terms
+of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted
+re-use, distribution and reproduction, provided the original article is properly cited.
+Global Constitutionalism (2026), 15: 2, 392
+doi:10.1017/S2045381726100306
+https://doi.org/10.1017/S2045381726100306
+p
+g
+g
+p
+j
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+p
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+Correction to: Rapid establishment of a national surveillance of COVID-19 hospitalizations in Belgium
+
+CORRECTION
+Open Access
+Correction to: Rapid establishment of a
+national surveillance of COVID-19
+hospitalizations in Belgium
+Nina Van Goethem1,2*, Aline Vilain1, Chloé Wyndham-Thomas1, Jessika Deblonde1, Nathalie Bossuyt1,
+Tinne Lernout1, Javiera Rebolledo Gonzalez1, Sophie Quoilin1, Vincent Melis3 and Dominique Van Beckhoven1
+Correction to: Arch Public Health 78, 121 (2020)
+https://doi.org/10.1186/s13690-020-00505-z
+Following publication of the original article [1], the
+author reported an error in the affiliations:
+The original first affiliation was
+1. Public health and genome, Scientific Directorate of
+Epidemiology and public health, Sciensano, J. Wytsmanstraat
+14, 1050 Brussels, Belgium
+The correct affiliation has been provided in this
+Correction.
+1. Scientific Directorate of Epidemiology and public
+health, Sciensano, J. Wytsmanstraat 14, 1050 Brussels,
+Belgium
+The original article [1] has been updated.
+Author details
+1Scientific Directorate of Epidemiology and Public Health, Sciensano, J.
+Wytsmanstraat 14, 1050 Brussels, Belgium. 2Department of Epidemiology and
+Biostatistics, Institut de recherche expérimentale et clinique, Faculty of Public
+Health, Université catholique de Louvain, Clos Chapelle-aux-champs 30, 1200
+Woluwe-Saint-Lambert, Belgium. 3Directorate Healthcare, Federal Public
+Service (FPS) Health, Food Chain Safety and Environment, Brussels, Belgium.
+Reference
+1.
+Van Goethem N, Vilain A, Wyndham-Thomas C, et al. Rapid establishment of
+a national surveillance of COVID-19 hospitalizations in Belgium. Arch Public
+Health. 2020;78:121. https://doi.org/10.1186/s13690-020-00505-z.
+© The Author(s). 2021 Open Access This article is licensed under a Creative Commons Attribution 4.0 International License,
+which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give
+appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence, and indicate if
+changes were made. The images or other third party material in this article are included in the article's Creative Commons
+licence, unless indicated otherwise in a credit line to the material. If material is not included in the article's Creative Commons
+licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain
+permission directly from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/4.0/.
+The Creative Commons Public Domain Dedication waiver (http://creativecommons.org/publicdomain/zero/1.0/) applies to the
+data made available in this article, unless otherwise stated in a credit line to the data.
+The original article can be found online at https://doi.org/10.1186/s13690-
+020-00505-z.
+* Correspondence: Nina.VanGoethem@sciensano.be
+1Scientific Directorate of Epidemiology and Public Health, Sciensano, J.
+Wytsmanstraat 14, 1050 Brussels, Belgium
+2Department of Epidemiology and Biostatistics, Institut de recherche
+expérimentale et clinique, Faculty of Public Health, Université catholique de
+Louvain, Clos Chapelle-aux-champs 30, 1200 Woluwe-Saint-Lambert, Belgium
+Full list of author information is available at the end of the article
+Van Goethem et al. Archives of Public Health         (2021) 79:147 
+https://doi.org/10.1186/s13690-021-00661-w
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+PRELIMINARY PRINT 
+Volume 594 U. S. Part 2 
+Pages 647–730 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+July 1, 2021 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2020 
+647 
+Syllabus 
+BRNOVICH, ATTORNEY GENERAL OF ARIZONA, et 
+al. v. DEMOCRATIC NATIONAL COMMITTEE et al. 
+certiorari to the united states court of appeals for 
+the ninth circuit 
+No. 19–1257. Argued March 2, 2021—Decided July 1, 2021* 
+Arizona law generally makes it very easy to vote. Voters may cast their 
+ballots on election day in person at a traditional precinct or a “voting 
+center” in their county of residence. Ariz. Rev. Stat. §16–411(B)(4). 
+Arizonans also may cast an “early ballot” by mail up to 27 days before 
+an election, §§ 16–541, 16–542(C), and they also may vote in person at 
+an early voting location in each county, §§ 16–542(A), (E). These cases 
+involve challenges under § 2 of the Voting Rights Act of 1965 (VRA) to 
+aspects of the State's regulations governing precinct-based election-day 
+voting and early mail-in voting. First, Arizonans who vote in person 
+on election day in a county that uses the precinct system must vote in 
+the precinct to which they are assigned based on their address. See 
+§ 16–122; see also § 16–135. If a voter votes in the wrong precinct, the 
+vote is not counted. Second, for Arizonans who vote early by mail, 
+Arizona House Bill 2023 (HB 2023) makes it a crime for any person 
+other than a postal worker, an elections offcial, or a voter's caregiver, 
+family member, or household member to knowingly collect an early bal­
+lot—either before or after it has been completed. §§ 16–1005(H)–(I). 
+The Democratic National Committee and certain affliates fled 
+suit, alleging that both the State's refusal to count ballots cast in the 
+wrong precinct and its ballot-collection restriction had an adverse and 
+disparate effect on the State's American Indian, Hispanic, and African-
+American citizens in violation of § 2 of the VRA. Additionally, they 
+alleged that the ballot-collection restriction was “enacted with discrimi­
+natory intent” and thus violated both § 2 of the VRA and the Fifteenth 
+Amendment. The District Court rejected all of the plaintiffs' claims. 
+The court found that the out-of-precinct policy had no “meaningfully 
+disparate impact” on minority voters' opportunities to elect representa­
+tives of their choice. Turning to the ballot-collection restriction, the 
+court found that it was unlikely to cause “a meaningful inequality” in 
+minority voters' electoral opportunities and that it had not been enacted 
+with discriminatory intent. A divided panel of the Ninth Circuit af­
+frmed, but the en banc court reversed. It frst concluded that both 
+*Together with No. 19–1258, Arizona Republican Party et al. v. Demo­
+cratic National Committee et al., also on certiorari to the same court. 
+
+648 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Syllabus 
+the out-of-precinct policy and the ballot-collection restriction imposed a 
+disparate burden on minority voters because they were more likely to 
+be adversely affected by those rules. The en banc court also held that 
+the District Court had committed clear error in fnding that the ballot-
+collection law was not enacted with discriminatory intent. 
+Held: Arizona's out-of-precinct policy and HB 2023 do not violate § 2 of the 
+VRA, and HB 2023 was not enacted with a racially discriminatory pur­
+pose. Pp. 665–690. 
+(a) Two threshold matters require the Court's attention. First, the 
+Court rejects the contention that no petitioner has Article III standing 
+to appeal the decision below as to the out-of-precinct policy. All that is 
+needed to entertain an appeal of that issue is one party with standing. 
+Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 
+591 U. S. 657, 674, n. 6. Attorney General Brnovich, as an authorized 
+representative of the State (which intervened below) in any action in 
+federal court, fts the bill. See Virginia House of Delegates v. Bethune-
+Hill, 587 U. S. –––, –––. Second, the Court declines in these cases to 
+announce a test to govern all VRA § 2 challenges to rules that specify 
+the time, place, or manner for casting ballots. It is suffcient for 
+present purposes to identify certain guideposts that lead to the Court's 
+decision in these cases. Pp. 665–666. 
+(b) The Court's statutory interpretation starts with a careful consid­
+eration of the text. Pp. 666–678. 
+(1) The Court frst construed the current version of § 2 in Thorn­
+burg v. Gingles, 478 U. S. 30, which was a vote-dilution case where the 
+Court took its cue from § 2's legislative history. The Court's many sub­
+sequent vote-dilution cases have followed the path Gingles charted. 
+Because the Court here considers for the frst time how § 2 applies to 
+generally applicable time, place, or manner voting rules, it is appro­
+priate to take a fresh look at the statutory text. Pp. 666–667. 
+(2) In 1982, Congress amended the language in § 2 that had been 
+interpreted to require proof of discriminatory intent by a plurality of 
+the Court in Mobile v. Bolden, 446 U. S. 55. In place of that language, 
+§ 2(a) now uses the phrase “in a manner which results in a denial or 
+abridgement of the right . . . to vote on account of race or color.” Sec­
+tion 2(b) in turn explains what must be shown to establish a § 2 violation. 
+Section 2(b) states that § 2 is violated only where “the political processes 
+leading to nomination or election” are not “equally open to participa­
+tion” by members of the relevant protected group “in that its members 
+have less opportunity than other members of the electorate to partici­
+pate in the political process and to elect representatives of their choice.” 
+(Emphasis added.) In § 2(b), the phrase “in that” is “used to specify 
+the respect in which a statement is true.” New Oxford American 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+649 
+Syllabus 
+Dictionary 851. Thus, equal openness and equal opportunity are not 
+separate requirements. Instead, it appears that the core of § 2(b) is the 
+requirement that voting be “equally open.” The statute's reference to 
+equal “opportunity” may stretch that concept to some degree to include 
+consideration of a person's ability to use the means that are equally 
+open. But equal openness remains the touchstone. Pp. 667–668. 
+(3) Another important feature of § 2(b) is its “totality of circum­
+stances” requirement. Any circumstance that has a logical bearing on 
+whether voting is “equally open” and affords equal “opportunity” may 
+be considered. Pp. 668–674. 
+(i) The Court mentions several important circumstances but does 
+not attempt to compile an exhaustive list. Pp. 668–672. 
+(A) The size of the burden imposed by a challenged voting rule 
+is highly relevant. Voting necessarily requires some effort and compli­
+ance with some rules; thus, the concept of a voting system that is 
+“equally open” and that furnishes equal “opportunity” to cast a ballot 
+must tolerate the “usual burdens of voting.” Crawford v. Marion 
+County Election Bd., 553 U. S. 181, 198. Mere inconvenience is insuff­
+cient. P. 669. 
+(B) The degree to which a voting rule departs from what was 
+standard practice when § 2 was amended in 1982 is a relevant consider­
+ation. The burdens associated with the rules in effect at that time are 
+useful in gauging whether the burdens imposed by a challenged rule 
+are suffcient to prevent voting from being equally “open” or furnishing 
+an equal “opportunity” to vote in the sense meant by § 2. Widespread 
+current use is also relevant. Pp. 669–671. 
+(C) The size of any disparities in a rule's impact on members 
+of different racial or ethnic groups is an important factor to consider. 
+Even neutral regulations may well result in disparities in rates of voting 
+and noncompliance with voting rules. The mere fact that there is some 
+disparity in impact does not necessarily mean that a system is not 
+equally open or that it does not give everyone an equal opportunity to 
+vote. And small disparities should not be artifcially magnifed. P. 671. 
+(D) Consistent with § 2(b)'s reference to a States' “political 
+processes,” courts must consider the opportunities provided by a State's 
+entire system of voting when assessing the burden imposed by a chal­
+lenged provision. Thus, where a State provides multiple ways to vote, 
+any burden associated with one option cannot be evaluated without also 
+taking into account the other available means. P. 671. 
+(E) The strength of the state interests—such as the strong and 
+entirely legitimate state interest in preventing election fraud—served 
+by a challenged voting rule is an important factor. Ensuring that every 
+vote is cast freely, without intimidation or undue infuence, is also a valid 
+
+Page Proof Pending Publication
+650 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Syllabus 
+and important state interest. In determining whether a rule goes too 
+far “based on the totality of circumstances,” rules that are supported 
+by strong state interests are less likely to violate § 2. Pp. 671–672. 
+(ii) Some factors identifed in Thornburg v. Gingles, 478 U. S. 30, 
+were designed for use in vote-dilution cases and are plainly inapplicable 
+in a case that involves a challenge to a facially neutral time, place, or 
+manner voting rule. While § 2(b)'s “totality of circumstances” language 
+permits consideration of certain other Gingles factors, their only rele­
+vance in cases involving neutral time, place, and manner rules is to show 
+that minority group members suffered discrimination in the past and 
+that effects of that discrimination persist. The disparate-impact model 
+employed in Title VII and Fair Housing Act cases is not useful here. 
+Pp. 672–674. 
+(4) Section 2(b) directs courts to consider “the totality of circum­
+stances,” but the dissent would make § 2 turn almost entirely on one 
+circumstance: disparate impact. The dissent also would adopt a least-
+restrictive means requirement that would force a State to prove that 
+the interest served by its voting rule could not be accomplished in any 
+other less burdensome way. Such a requirement has no footing in the 
+text of § 2 or the Court's precedent construing it and would have the 
+potential to invalidate just about any voting rule a State adopts. Sec­
+tion 2 of the VRA provides vital protection against discriminatory vot­
+ing rules, and no one suggests that discrimination in voting has been 
+extirpated or that the threat has been eliminated. Even so, § 2 does 
+not transfer the States' authority to set non-discriminatory voting rules 
+to the federal courts. Pp. 674–678. 
+(c) Neither Arizona's out-of-precinct policy nor its ballot-collection law 
+violates §2 of the VRA. Pp. 678–687. 
+(1) Having to identify one's polling place and then travel there to 
+vote does not exceed the “usual burdens of voting.” Crawford, 553 
+U. S., at 198. In addition, the State made extensive efforts to reduce 
+the impact of the out-of-precinct policy on the number of valid votes 
+ultimately cast, e. g., by sending a sample ballot to each household that 
+includes a voter's proper polling location. The burdens of identifying 
+and traveling to one's assigned precinct are also modest when consider­
+ing Arizona's “political processes” as a whole. The State offers other 
+easy ways to vote, which likely explains why out-of-precinct votes on 
+election day make up such a small and apparently diminishing portion 
+of overall ballots cast. 
+Next, the racial disparity in burdens allegedly caused by the out-of­
+precinct policy is small in absolute terms. Of the Arizona counties that 
+reported out-of-precinct ballots in the 2016 general election, a little over 
+1% of Hispanic voters, 1% of African-American voters, and 1% of Native 
+American voters who voted on election day cast an out-of-precinct bal­
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+651 
+Syllabus 
+lot. For non-minority voters, the rate was around 0.5%. A procedure 
+that appears to work for 98% or more of voters to whom it applies— 
+minority and non-minority alike—is unlikely to render a system un­
+equally open. 
+Appropriate weight must be given to the important state interests 
+furthered by precinct-based voting. It helps to distribute voters more 
+evenly among polling places; it can put polling places closer to voter 
+residences; and it helps to ensure that each voter receives a ballot that 
+lists only the candidates and public questions on which he or she can 
+vote. Precinct-based voting has a long pedigree in the United States, 
+and the policy of not counting out-of-precinct ballots is widespread. 
+The Court of Appeals discounted the State's interests because it found 
+no evidence that a less restrictive alternative would threaten the integ­
+rity of precinct-based voting. But § 2 does not require a State to show 
+that its chosen policy is absolutely necessary or that a less restrictive 
+means would not adequately serve the State's objectives. Considering 
+the modest burdens allegedly imposed by Arizona's out-of-precinct pol­
+icy, the small size of its disparate impact, and the State's justifcations, 
+the rule does not violate § 2. Pp. 678–682. 
+(2) Arizona's HB 2023 also passes muster under § 2. Arizonans can 
+submit early ballots by going to a mailbox, a post offce, an early ballot 
+drop box, or an authorized election offcial's offce. These options entail 
+the “usual burdens of voting,” and assistance from a statutorily author­
+ized proxy is also available. The State also makes special provision for 
+certain groups of voters who are unable to use the early voting system. 
+See § 16–549(C). And here, the plaintiffs were unable to show the ex­
+tent to which HB 2023 disproportionately burdens minority voters. 
+Even if the plaintiffs were able to demonstrate a disparate burden 
+caused by HB 2023, the State's “compelling interest in preserving the 
+integrity of its election procedures” would suffce to avoid § 2 liability. 
+Purcell v. Gonzalez, 549 U. S. 1, 4. The Court of Appeals viewed the 
+State's justifcations for HB 2023 as tenuous largely because there was 
+no evidence of early ballot fraud in Arizona. But prevention of fraud 
+is not the only legitimate interest served by restrictions on ballot collec­
+tion. Third-party ballot collection can lead to pressure and intimida­
+tion. Further, a State may take action to prevent election fraud with­
+out waiting for it to occur within its own borders. Pp. 683–687. 
+(d) HB 2023 was not enacted with a discriminatory purpose, as the 
+District Court found. Appellate review of that conclusion is for clear 
+error. Pullman-Standard v. Swint, 456 U. S. 273, 287–288. The Dis­
+trict Court's fnding on the question of discriminatory intent had ample 
+support in the record. The court considered the historical background 
+and the highly politicized sequence of events leading to HB 2023's enact­
+ment; it looked for any departures from the normal legislative process; 
+
+652 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Syllabus 
+it considered relevant legislative history; and it weighed the law's im­
+pact on different racial groups. See Arlington Heights v. Metropolitan 
+Housing Development Corp., 429 U. S. 252, 266–268. The court found 
+HB 2023 to be the product of sincere legislative debate over the wisdom 
+of early mail-in voting and the potential for fraud. And it took care to 
+distinguish between racial motives and partisan motives. The District 
+Court's interpretation of the evidence was plausible based on the record, 
+so its permissible view is not clearly erroneous. See Anderson v. Bes­
+semer City, 470 U. S. 564, 573–574. The Court of Appeals concluded 
+that the District Court committed clear error by failing to apply a “cat's 
+paw” theory—which analyzes whether an actor was a “dupe” who was 
+“used by another to accomplish his purposes.” That theory has its ori­
+gin in employment discrimination cases and has no application to legisla­
+tive bodies. Pp. 687–690. 
+948 F. 3d 989, reversed and remanded. 
+Alito, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Gor­
+such, J., fled a concurring opinion, in which Thomas, J., joined, post, 
+p. 690. Kagan, J., fled a dissenting opinion, in which Breyer and Soto-
+mayor, JJ., joined, post, p. 690. 
+Michael A. Carvin argued the cause for private petition­
+ers in No. 19–1258. With him on the briefs fled in both 
+cases were Yaakov M. Roth, Anthony J. Dick, and Brett W. 
+Johnson. Mark Brnovich, Attorney General of Arizona, ar­
+gued the cause for state petitioners in No. 19–1257. With 
+him on the briefs fled in both cases were Joseph A. Kane-
+feld, Brunn W. Roysden III, Solicitor General, Drew C. En­
+sign, Deputy Solicitor General, Kate B. Sawyer, Assistant 
+Solicitor General, William S. Consovoy, and Tyler R. Green. 
+Jessica Ring Amunson argued the cause for respondent 
+Arizona Secretary of State Katie Hobbs. With her on the 
+brief in both cases was Sam Hirsch. Bruce V. Spiva argued 
+the cause for respondent DNC et al. With him on the brief 
+in both cases were Marc E. Elias, Elisabeth C. Frost, Lali­
+tha D. Madduri, and Sarah R. Gonski.* 
+*Briefs of amici curiae urging reversal in both cases were fled for the 
+United States as amicus curiae by Acting Solicitor General Wall, Has­
+him M. Mooppan, Principal Deputy Assistant Attorney General Daukas, 
+Jonathan C. Bond, and Thomas E. Chandler; for the State of Ohio et 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+653 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+In these cases, we are called upon for the frst time to 
+apply § 2 of the Voting Rights Act of 1965 to regulations that 
+al. by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, Solici­
+tor General, Michael J. Hendershot, Chief Deputy Solicitor General, and 
+Zachery P. Keller, Deputy Solicitor General, by Clyde Sniffen, Jr., Acting 
+Attorney General of Alaska, and by the Attorneys General for their re­
+spective jurisdictions as follows: Steve Marshall of Alabama, Leslie Rut­
+ledge of Arkansas, Christopher M. Carr of Georgia, Lawrence G. Wasden 
+of Idaho, Curtis T. Hill, Jr., of Indiana, Daniel Cameron of Kentucky, Jeff 
+Landry of Louisiana, Lynn Fitch of Mississippi, Eric Schmitt of Missouri, 
+Douglas J. Peterson of Nebraska, Wayne Stenehjem of North Dakota, 
+Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason Ravns­
+borg of South Dakota, Herbert H. Slatery III of Tennessee, Ken Paxton 
+of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of West Virginia; 
+for the American Constitutional Rights Union by John J. Park, Jr.; 
+for Election Integrity Project California, Inc., et al. by Michael J. O'Neill, 
+Matthew C. Forys, and Richard P. Hutchison; for the Honest Elections 
+Project by Jonathan P. Lienhard; for Judicial Watch, Inc., et al. by 
+H. Christopher Coates, Robert D. Popper, and T. Russell Nobile; for the 
+Pacifc Legal Foundation et al. by Joshua P. Thompson and Christopher 
+M. Kieser; for the Republican Governors Public Policy Committee by 
+Jason Torchinsky and Jessica Furst Johnson; for Sen. Ted Cruz et al. by 
+Bradley A. Benbrook, Stephen M. Duvernay, and Jonathan F. Mitchell; 
+for Gov. Douglas A. Ducey et al. by Dominic E. Draye and Andrew G. 
+Pappas; for Scott Fitzgerald et al. by Jessie Augustyn; for Gov. Kristi 
+Noem by Gene C. Schaerr, Erik S. Jaffe, Hannah C. Smith, and Kathryn 
+E. Tarbert; and for Helen Purcell by David J. Cantelme and D. Aaron 
+Brown. 
+J. Christian Adams fled a brief for the Public Interest Legal Founda­
+tion et al. as amici curiae urging reversal in No. 19–1257. 
+Briefs of amici curiae urging affrmance in both cases were fled for the 
+District of Columbia et al. by Karl A. Racine, Attorney General of the 
+District of Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van 
+Zile, Principal Deputy Solicitor General, and Harrison M. Stark, Assist­
+ant Attorney General, and by the Attorneys General for their respective 
+jurisdictions as follows: Xavier Becerra of California, Philip J. Weiser of 
+Colorado, William Tong of Connecticut, Clare E. Connors of Hawaii, 
+Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E. Frosh of 
+Maryland, Maura Healey of Massachusetts, Aaron D. Ford of Nevada, 
+Gurbir S. Grewal of New Jersey, Hector Balderas of New Mexico, Letitia 
+James of New York, Ellen F. Rosenblum of Oregon, Peter F. Neronha of 
+
+Page Proof Pending Publication
+654 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+govern how ballots are collected and counted. Arizona law 
+generally makes it very easy to vote. All voters may vote 
+by mail or in person for nearly a month before election day, 
+but Arizona imposes two restrictions that are claimed to be 
+unlawful. First, in some counties, voters who choose to cast 
+a ballot in person on election day must vote in their own 
+precincts or else their ballots will not be counted. Second, 
+mail-in ballots cannot be collected by anyone other than an 
+Rhode Island, Thomas J. Donovan, Jr., of Vermont, Mark R. Herring of 
+Virginia, and Robert W. Ferguson of Washington; for the American Civil 
+Liberties Union et al. by Davin M. Rosborough, Sophia Lin Lakin, 
+T. Alora Thomas-Lundborg, Dale E. Ho, Cecillia D. Wang, and David D. 
+Cole; for the Brennan Center for Justice at NYU School of Law by Antony 
+L. Ryan, Helam Gebremariam, Myrna Pérez, Michael Li, and Wendy 
+Weiser; for the Campaign Legal Center by Paul M. Smith, Danielle M. 
+Lang, and Jonathan M. Diaz; for the Constitutional Accountability Center 
+by Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; for Empiri­
+cal Elections Scholars by Maxwell V. Pritt; for Fair Fight Action, Inc., 
+et al. by W. Scott Bales, Roopali H. Desai, D. Andrew Gaona, and Allegra 
+J. Lawrence; for the Leadership Conference on Civil and Human Rights 
+et al. by Debo P. Adegbile, Arpit K. Garg, LaShawn Warren, and Michael 
+Zubrensky; for Mi Familia Vota et al. by Jason A. Leckerman; for the 
+NAACP Legal Defense & Educational Fund, Inc., by Sherrilyn Ifll, 
+Janai S. Nelson, Samuel Spital, Leah C. Aden, and Mahogane D. Reed; 
+for the National Association for the Advancement of Colored People et al. 
+by Kathleen R. Hartnett, Adam S. Gershenson, Damon Hewitt, Jon 
+Greenbaum, Ezra D. Rosenberg, and Barrett J. Anderson; for the National 
+Congress of American Indians by Jacqueline de León, John Echohawk, 
+and Samantha Blencke Kelty; for the North Carolina, Memphis, Central 
+Virginia, and Miami-Dade Chapters of the A. Philip Randolph Institute by 
+Charles A. Rothfeld, Allison J. Riggs, and Jonathan C. Augustine; for 
+State and Local Election Offcials by Zachary D. Tripp; and for Travis 
+Crum by Mr. Crum, pro se, and Gregory Dubinsky. 
+Briefs of amici curiae were fled in both cases for Casper Sleep Inc. 
+et al. by Nathaniel B. Edmonds; for the Cato Institute by Ilya Shapiro; 
+for the Liberty Justice Center by Daniel R. Suhr and Jeffrey M. Schwab; 
+for the Navajo Nation by Judith M. Dworking, Paul Spruhan, and Patri­
+cia A. Ferguson-Bohnee; for Senate Staffers et al. by Laura W. Brill; for 
+Voting Rights Scholars by Justin Levitt, Allison A. Davis, and Chris 
+Swift; for Elijah Haahr et al. by Frederick R. Yarger; and for Nicholas 
+Stephanopoulos by Jenna A. Hudson and Mark A. Packman. 
+
+Cite as: 594 U. S. 647 (2021) 
+655 
+Opinion of the Court 
+election offcial, a mail carrier, or a voter's family member, 
+household member, or caregiver. After a trial, a District 
+Court upheld these rules, as did a panel of the United States 
+Court of Appeals for the Ninth Circuit. But an en banc 
+court, by a divided vote, found them to be unlawful. It re­
+lied on the rules' small disparate impacts on members of mi­
+nority groups, as well as past discrimination dating back to 
+the State's territorial days. And it overturned the District 
+Court's fnding that the Arizona Legislature did not adopt 
+the ballot-collection restriction for a discriminatory purpose. 
+We now hold that the en banc court misunderstood and mis­
+applied §2 and that it exceeded its authority in rejecting the 
+District Court's factual fnding on the issue of legislative 
+intent. 
+I 
+A 
+Congress enacted the landmark Voting Rights Act of 1965, 
+79 Stat. 437, as amended, 52 U. S. C. § 10301 et seq., in an 
+effort to achieve at long last what the Fifteenth Amendment 
+had sought to bring about 95 years earlier: an end to the 
+denial of the right to vote based on race. Ratifed in 1870, 
+the Fifteenth Amendment provides in § 1 that “[t]he right of 
+citizens of the United States to vote shall not be denied or 
+abridged by the United States or by any State on account of 
+race, color, or previous condition of servitude.” Section 2 of 
+the Amendment then grants Congress the “power to enforce 
+[the Amendment] by appropriate legislation.” 
+Despite the ratifcation of the Fifteenth Amendment, the 
+right of African-Americans to vote was heavily suppressed 
+for nearly a century. States employed a variety of notorious 
+methods, including poll taxes, literacy tests, property qualif­
+cations, “ `white primar[ies],' ” and “ `grandfather clause[s].' ” 1 
+1 H. R. Rep. No. 439, 89th Cong., 1st Sess., 8, 11–13 (1965); S. Rep. No. 
+162, 89th Cong., 1st Sess., pt. 3, pp. 4–5 (1965); see South Carolina v. 
+Katzenbach, 383 U. S. 301, 309–315 (1966). 
+Page Proof Pending Publication
+
+656 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+Challenges to some blatant efforts reached this Court and 
+were held to violate the Fifteenth Amendment. See, e. g., 
+Guinn v. United States, 238 U. S. 347, 360–365 (1915) (grand­
+father clause); Myers v. Anderson, 238 U. S. 368, 379– 
+380 (1915) (same); Lane v. Wilson, 307 U. S. 268, 275–277 (1939) 
+(registration scheme predicated on grandfather clause); 
+Smith v. Allwright, 321 U. S. 649, 659–666 (1944) (white pri­
+maries); Schnell v. Davis, 336 U. S. 933 (1949) (per curiam), 
+affrming 81 F. Supp. 872 (SD Ala. 1949) (test of constitutional 
+knowledge); Gomillion v. Lightfoot, 364 U. S. 339, 347 (1960) 
+(racial gerrymander). But as late as the mid-1960s, black 
+registration and voting rates in some States were appallingly 
+low. See South Carolina v. Katzenbach, 383 U. S. 301, 313 
+(1966). 
+Invoking the power conferred by § 2 of the Fifteenth 
+Amendment, see 383 U. S., at 308; City of Rome v. United 
+States, 446 U. S. 156, 173 (1980), Congress enacted the Voting 
+Rights Act (VRA) to address this entrenched problem. The 
+Act and its amendments in the 1970s specifcally forbade 
+some of the practices that had been used to suppress black 
+voting. See §§ 4(a), (c), 79 Stat. 438–439; § 6, 84 Stat. 315; 
+§ 102, 89 Stat. 400, as amended, 52 U. S. C. §§ 10303(a), (c), 
+10501 (prohibiting the denial of the right to vote in any elec­
+tion for failure to pass a test demonstrating literacy, educa­
+tional achievement or knowledge of any particular subject, 
+or good moral character); see also § 10, 79 Stat. 442, as 
+amended, 52 U. S. C. § 10306 (declaring poll taxes unlawful); 
+§ 11, 79 Stat. 443, as amended, 52 U. S. C. § 10307 (prohibiting 
+intimidation and the refusal to allow or count votes). Sec­
+tions 4 and 5 of the VRA imposed special requirements for 
+States and subdivisions where violations of the right to vote 
+had been severe. And § 2 addressed the denial or abridg­
+ment of the right to vote in any part of the country. 
+As originally enacted, § 2 closely tracked the language of 
+the Amendment it was adopted to enforce. Section 2 stated 
+simply that “[n]o voting qualifcation or prerequisite to vot­
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+657 
+Opinion of the Court 
+ing, or standard, practice, or procedure shall be imposed or 
+applied by any State or political subdivision to deny or 
+abridge the right of any citizen of the United States to vote 
+on account of race or color.” 79 Stat. 437. 
+Unlike other provisions of the VRA, § 2 attracted rela­
+tively little attention during the congressional debates2 and 
+was “little-used” for more than a decade after its passage.3 
+But during the same period, this Court considered several 
+cases involving “vote-dilution” claims asserted under the 
+Equal Protection Clause of the Fourteenth Amendment. 
+See Whitcomb v. Chavis, 403 U. S. 124 (1971); Burns v. Rich­
+ardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 
+(1965). In these and later vote-dilution cases, plaintiffs 
+claimed that features of legislative districting plans, includ­
+ing the confguration of legislative districts and the use of 
+multi-member districts, diluted the ability of particular vot­
+ers to affect the outcome of elections. 
+One Fourteenth Amendment vote-dilution case, White v. 
+Regester, 412 U. S. 755 (1973), came to have outsized impor­
+tance in the development of our VRA case law. In White, 
+the Court affrmed a District Court's judgment that two 
+multi-member electoral districts were “being used invidi­
+ously to cancel out or minimize the voting strength of racial 
+groups.” Id., at 765. The Court explained what a vote-
+dilution plaintiff must prove, and the words the Court chose 
+would later assume great importance in VRA § 2 matters. 
+According to White, a vote-dilution plaintiff had to show that 
+“the political processes leading to nomination and election 
+were not equally open to participation by the group in ques­
+tion—that its members had less opportunity than did other 
+residents in the district to participate in the political proc­
+esses and to elect legislators of their choice.” Id., at 766 
+2 See Mobile v. Bolden, 446 U. S. 55, 60–61 (1980) (plurality opinion) 
+(describing § 2's “sparse” legislative history). 
+3 Boyd & Markman, The 1982 Amendments to the Voting Rights Act: A 
+Legislative History, 40 Wash. & Lee L. Rev. 1347, 1352–1353 (1983). 
+Page Proof Pending Publication
+
+658 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+(emphasis added). The decision then recited many pieces of 
+evidence the District Court had taken into account, and it 
+found that this evidence suffced to prove the plaintiffs' 
+claim. See id., at 766–769. The decision in White predated 
+Washington v. Davis, 426 U. S. 229 (1976), where the Court 
+held that an equal-protection challenge to a facially neutral 
+rule requires proof of discriminatory purpose or intent, id., 
+at 238–245, and the White opinion said nothing one way or 
+the other about purpose or intent. 
+A few years later, the question whether a VRA § 2 claim 
+required discriminatory purpose or intent came before this 
+Court in Mobile v. Bolden, 446 U. S. 55 (1980). The plurality 
+opinion for four Justices concluded frst that § 2 of the VRA 
+added nothing to the protections afforded by the Fifteenth 
+Amendment. Id., at 60–61. The plurality then observed 
+that prior decisions “ha[d] made clear that action by a State 
+that is racially neutral on its face violates the Fifteenth 
+Amendment only if motivated by a discriminatory purpose.” 
+Id., at 62. The obvious result of those premises was that 
+facially neutral voting practices violate § 2 only if motivated 
+by a discriminatory purpose. The plurality read White 
+as consistent with this requirement. Bolden, 446 U. S., at 
+68–70. 
+Shortly after Bolden was handed down, Congress 
+amended § 2 of the VRA. The oft-cited Report of the Sen­
+ate Judiciary Committee accompanying the 1982 Amendment 
+stated that the amendment's purpose was to repudiate Bol­
+den and establish a new vote-dilution test based on what the 
+Court had said in White. See S. Rep. No. 97–417, pp. 2, 15– 
+16, 27. The bill that was initially passed by the House of 
+Representatives included what is now § 2(a). In place of the 
+phrase “to deny or abridge the right . . . to vote on account 
+of race or color,” the amendment substituted “in a manner 
+which results in a denial or abridgement of the right . . . to 
+vote on account of race or color.” H. R. Rep. No. 97–227, 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+659 
+Opinion of the Court 
+p. 48 (1981) (emphasis added); H. R. 3112, 97th Cong., 1st 
+Sess., § 2, p. 8 (introduced Oct. 7, 1981). 
+The House bill “originally passed . . . under a loose under­
+standing that § 2 would prohibit all discriminatory `effects' 
+of voting practices, and that intent would be `irrelevant,' ” 
+but “[t]his version met stiff resistance in the Senate.” Mis­
+sissippi Republican Executive Committee v. Brooks, 469 
+U. S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (quoting 
+H. R. Rep. No. 97–227, at 29). The House and Senate com­
+promised, and the fnal product included language proposed 
+by Senator Dole. 469 U. S., at 1010–1011; S. Rep. No. 97– 
+417, at 3–4; 128 Cong. Rec. 14131–14133 (1982) (Sen. Dole 
+describing his amendment). 
+What is now § 2(b) was added, and that provision sets out 
+what must be shown to prove a § 2 violation. It requires 
+consideration of “the totality of circumstances” in each case 
+and demands proof that “the political processes leading to 
+nomination or election in the State or political subdivision 
+are not equally open to participation” by members of a pro­
+tected class “in that its members have less opportunity than 
+other members of the electorate to participate in the political 
+process and to elect representatives of their choice.” 52 
+U. S. C. § 10301(b) (emphasis added). Refecting the Senate 
+Judiciary Committee's stated focus on the issue of vote dilu­
+tion, this language was taken almost verbatim from White. 
+This concentration on the contentious issue of vote dilution 
+refected the results of the Senate Judiciary Committee's ex­
+tensive survey of what it regarded as Fifteenth Amendment 
+violations that called out for legislative redress. See, e. g., 
+S. Rep. No. 97–417, at 6, 8, 23–24, 27, 29. That survey listed 
+many examples of what the Committee took to be unconstitu­
+tional vote dilution, but the survey identifed only three iso­
+lated episodes involving the outright denial of the right to 
+vote, and none of these concerned the equal application of a 
+facially neutral rule specifying the time, place, or manner of 
+Page Proof Pending Publication
+
+660 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+voting. See id., at 30, and n. 119.4 
+These sparse results 
+were presumably good news. They likely showed that the 
+VRA and other efforts had achieved a large measure of suc­
+cess in combating the previously widespread practice of 
+using such rules to hinder minority groups from voting. 
+This Court frst construed the amended § 2 in Thornburg 
+v. Gingles, 478 U. S. 30 (1986)—another vote-dilution case. 
+Justice Brennan's opinion for the Court set out three thresh­
+old requirements for proving a § 2 vote-dilution claim, and, 
+taking its cue from the Senate Report, provided a non-
+exhaustive list of factors to be considered in determining 
+whether § 2 had been violated. Id., at 44–45, 48–51, 80. 
+“The essence of a § 2 claim,” the Court said, “is that a certain 
+electoral law, practice, or structure interacts with social and 
+historical conditions to cause an inequality in the opportuni­
+ties” of minority and non-minority voters to elect their pre­
+ferred representatives. Id., at 47. 
+In the years since Gingles, we have heard a steady stream 
+of § 2 vote-dilution cases,5 but until today, we have not con­
+sidered how § 2 applies to generally applicable time, place, or 
+manner voting rules. In recent years, however, such claims 
+have proliferated in the lower courts.6 
+4 See Brown v. Post, 279 F. Supp. 60, 63 (WD La. 1968) (parish clerks 
+discriminated with respect to absentee voting); United States v. Post, 297 
+F. Supp. 46, 51 (WD La. 1969) (election offcial induced blacks to vote in 
+accordance with outdated procedures and made votes ineffective); Toney 
+v. White, 488 F. 2d 310, 312 (CA5 1973) (registrar discriminated in purging 
+voting rolls). 
+5 See Chisom v. Roemer, 501 U. S. 380 (1991) (multi-member district); 
+Houston Lawyers' Assn. v. Attorney General of Tex., 501 U. S. 419 (1991) 
+(at-large elections); Voinovich v. Quilter, 507 U. S. 146 (1993) (districting); 
+Growe v. Emison, 507 U. S. 25 (1993) (same); Holder v. Hall, 512 U. S. 874 
+(1994) (single-member commission); Johnson v. De Grandy, 512 U. S. 997 
+(1994) (districting); Abrams v. Johnson, 521 U. S. 74 (1997) (same); League 
+of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (same); 
+Abbott v. Perez, 585 U. S. 579 (2018) (same). 
+6 See Brief for Sen. Ted Cruz et al. as Amici Curiae 22–24 (describing 
+§ 2 challenges to laws regulating absentee voting, precinct voting, early 
+voting periods, voter identifcation (ID), election observer zones, same­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+661 
+Opinion of the Court 
+B 
+The present dispute concerns two features of Arizona vot­
+ing law, which generally makes it quite easy for residents to 
+vote. All Arizonans may vote by mail for 27 days before an 
+election using an “early ballot.” Ariz. Rev. Stat. Ann. §§ 16– 
+541 (2015), 16–542(C) (Cum. Supp. 2020). No special excuse 
+is needed, §§ 16–541(A), 16–542(A), and any voter may ask 
+to be sent an early ballot automatically in future elections, 
+§ 16–544(A) (2015). In addition, during the 27 days before 
+an election, Arizonans may vote in person at an early voting 
+location in each county. See §§ 16–542(A), (E). And they 
+may also vote in person on election day. 
+Each county is free to conduct election-day voting either 
+by using the traditional precinct model or by setting up “vot­
+ing centers.” § 16–411(B)(4) (Cum. Supp. 2020). Voting 
+centers are equipped to provide all voters in a county with 
+the appropriate ballot for the precinct in which they are reg­
+istered, and this allows voters in the county to use whichever 
+vote center they prefer. See ibid. 
+The regulations at issue in this suit govern precinct-based 
+election-day voting and early mail-in voting. Voters who 
+choose to vote in person on election day in a county that uses 
+the precinct system must vote in their assigned precincts. 
+See § 16–122 (2015); see also § 16–135. If a voter goes to the 
+wrong polling place, poll workers are trained to direct the 
+voter to the right location. Democratic Nat. Comm. v. 
+Reagan, 329 F. Supp. 3d 824, 859 (Ariz. 2018); see Tr. 1559, 
+1586 (Oct. 12, 2017); Tr. Exh. 370 (Pima County Elections 
+Inspectors Handbook). If a voter fnds that his or her name 
+does not appear on the register at what the voter believes is 
+the right precinct, the voter ordinarily may cast a provi­
+day registration, durational residency, and straight-ticket voting); Brief 
+for State of Ohio et al. as Amici Curiae 23–25 (describing various 
+§ 2 challenges); Brief for Liberty Justice Center as Amicus Curiae 1–3, 
+7–11 (describing long-running § 2 challenges to Wisconsin voter ID 
+law). 
+
+662 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+sional ballot. Ariz. Rev. Stat. Ann. § 16–584 (Cum. Supp. 
+2020). That ballot is later counted if the voter's address is 
+determined to be within the precinct. See ibid. But if it 
+turns out that the voter cast a ballot at the wrong precinct, 
+that vote is not counted. See § 16–584(E); App. 37–41 (elec­
+tion procedures manual); Ariz. Rev. Stat. Ann. § 16–452(C) 
+(misdemeanor to violate rules in election procedures manual). 
+For those who choose to vote early by mail, Arizona has 
+long required that “[o]nly the elector may be in possession of 
+that elector's unvoted early ballot.” § 16–542(D). In 2016, 
+the state legislature enacted House Bill 2023 (HB 2023), 
+which makes it a crime for any person other than a postal 
+worker, an elections offcial, or a voter's caregiver, family 
+member, or household member to knowingly collect an early 
+ballot—either before or after it has been completed. §§ 16– 
+1005(H)–(I). 
+In 2016, the Democratic National Committee and certain 
+affliates brought this suit and named as defendants (among 
+others) the Arizona attorney general and secretary of state 
+in their offcial capacities. Among other things, the plain­
+tiffs claimed that both the State's refusal to count ballots 
+cast in the wrong precinct and its ballot-collection restriction 
+“adversely and disparately affect Arizona's American Indian, 
+Hispanic, and African American citizens,” in violation of § 2 
+of the VRA. Democratic Nat. Comm. v. Hobbs, 948 F. 3d 
+989, 998 (CA9 2020) (en banc). In addition, they alleged that 
+the ballot-collection restriction was “enacted with discrimi­
+natory intent” and thus violated both § 2 of the VRA and the 
+Fifteenth Amendment. Ibid. 
+After a 10-day bench trial, 329 F. Supp. 3d, at 832, 833– 
+838, the District Court made extensive fndings of fact and 
+rejected all the plaintiffs' claims, id., at 838–883. The court 
+frst found that the out-of-precinct policy “has no meaning­
+fully disparate impact on the opportunities of minority vot­
+ers to elect” representatives of their choice. Id., at 872. 
+The percentage of ballots invalidated under this policy was 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+663 
+Opinion of the Court 
+very small (0.15% of all ballots cast in 2016) and decreasing, 
+and while the percentages were slightly higher for members 
+of minority groups, the court found that this disparity “does 
+not result in minorities having unequal access to the political 
+process.” Ibid. The court also found that the plaintiffs had 
+not proved that the policy “causes minorities to show up to 
+vote at the wrong precinct at rates higher than their non-
+minority counterparts,” id., at 873, and the court noted that 
+the plaintiffs had not even challenged “the manner in which 
+Arizona counties allocate and assign polling places or Arizo­
+na's requirement that voters re-register to vote when they 
+move,” ibid. 
+The District Court similarly found that the ballot-
+collection restriction is unlikely to “cause a meaningful in­
+equality in the electoral opportunities of minorities.” Id., at 
+871. Rather, the court noted, the restriction applies equally 
+to all voters and “does not impose burdens beyond those tra­
+ditionally associated with voting.” Ibid. The court ob­
+served that the plaintiffs had presented no records showing 
+how many voters had previously relied on now-prohibited 
+third-party ballot collectors and that the plaintiffs also had 
+“provided no quantitative or statistical evidence” of the per­
+centage of minority and non-minority voters in this group. 
+Id., at 866. “[T]he vast majority” of early voters, the court 
+found, “do not return their ballots with the assistance of a 
+[now-prohibited] third-party collector,” id., at 845, and the 
+evidence largely showed that those who had used such collec­
+tors in the past “ha[d] done so out of convenience or personal 
+preference, or because of circumstances that Arizona law ad­
+equately accommodates in other ways,” id., at 847.7 
+In addi­
+tion, the court noted, none of the individual voters called 
+by the plaintiffs had even claimed that the ballot-collection 
+7 An ill or disabled voter may have a ballot delivered by a special elec­
+tion board, and curbside voting at polling places is also allowed. 329 
+F. Supp. 3d, at 848. 
+Page Proof Pending Publication
+
+664 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+restriction “would make it signifcantly more diffcult to 
+vote.” Id., at 871. 
+Finally, the court found that the ballot-collection law had 
+not been enacted with discriminatory intent. “[T]he major­
+ity of H.B. 2023's proponents,” the court found, “were sincere 
+in their belief that ballot collection increased the risk of early 
+voting fraud, and that H.B. 2023 was a necessary prophylac­
+tic measure to bring early mail ballot security in line with 
+in-person voting.” Id., at 879. The court added that “some 
+individual legislators and proponents were motivated in part 
+by partisan interests.” Id., at 882. But it distinguished be­
+tween partisan and racial motives, while recognizing that “ra­
+cially polarized voting can sometimes blur the lines.” Ibid. 
+A divided panel of the Ninth Circuit affrmed, but an en 
+banc court reversed. The en banc court frst concluded that 
+both the out-of-precinct policy and the ballot-collection re­
+striction imposed disparate burdens on minority voters be­
+cause such voters were more likely to be adversely affected 
+by those rules. 948 F. 3d, at 1014–1016, 1032–1033. Then, 
+based on an assessment of the vote-dilution factors used in 
+Gingles, the en banc majority found that these disparate bur­
+dens were “in part caused by or linked to `social and histori­
+cal conditions' ” that produce inequality. 948 F. 3d, at 1032 
+(quoting Gingles, 478 U. S., at 47); see 948 F. 3d, at 1037. 
+Among other things, the court relied on racial discrimination 
+dating back to Arizona's territorial days, current socioeco­
+nomic disparities, racially polarized voting, and racial cam­
+paign appeals. See id., at 1016–1032, 1033–1037. 
+The en banc majority also held that the District Court had 
+committed clear error in fnding that the ballot-collection law 
+was not enacted with discriminatory intent. The en banc 
+court did not claim that a majority of legislators had voted 
+for the law for a discriminatory purpose, but the court held 
+that these lawmakers “were used as `cat's paws' ” by others. 
+Id., at 1041. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+665 
+Opinion of the Court 
+One judge in the majority declined to join the court's hold­
+ing on discriminatory intent, and four others dissented 
+across the board. A petition for a writ of certiorari was 
+fled by the Arizona attorney general on his own behalf and 
+on behalf of the State, which had intervened below; another 
+petition was fled by the Arizona Republican Party and other 
+private parties who also had intervened. We granted the 
+petitions and agreed to review both the Ninth Circuit's un­
+derstanding and application of VRA § 2 and its holding on 
+discriminatory intent. 591 U. S. ––– (2020). 
+II 
+We begin with two preliminary matters. Secretary of 
+State Hobbs contends that no petitioner has Article III 
+standing to appeal the decision below as to the out-of­
+precinct policy, but we reject that argument. All that is 
+needed to entertain an appeal of that issue is one party with 
+standing, see Little Sisters of the Poor Saints Peter and 
+Paul Home v. Pennsylvania, 591 U. S. 657, 674, n. 6 (2020), 
+and we are satisfed that Attorney General Brnovich fts the 
+bill. The State of Arizona intervened below, see App. 834; 
+there is “[n]o doubt” as an Article III matter that “the State 
+itself c[an] press this appeal,” Virginia House of Delegates 
+v. Bethune-Hill, 587 U. S. –––, ––– (2019); and the attorney 
+general is authorized to represent the State in any action in 
+federal court, Ariz. Rev. Stat. Ann. § 41–193(A)(3) (2021); see 
+Arizonans for Offcial English v. Arizona, 520 U. S. 43, 51, 
+n. 4 (1997). 
+Second, we think it prudent to make clear at the beginning 
+that we decline in these cases to announce a test to govern 
+all VRA § 2 claims involving rules, like those at issue here, 
+that specify the time, place, or manner for casting ballots. 
+Each of the parties advocated a different test, as did many 
+amici and the courts below. In a brief fled in December in 
+support of petitioners, the Department of Justice proposed 
+Page Proof Pending Publication
+
+666 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+one such test but later disavowed the analysis in that brief.8 
+The Department informed us, however, that it did not dis­
+agree with its prior conclusion that the two provisions of 
+Arizona law at issue in these cases do not violate § 2 of the 
+Voting Rights Act.9 
+All told, no fewer than 10 tests have 
+been proposed. But as this is our frst foray into the area, 
+we think it suffcient for present purposes to identify certain 
+guideposts that lead us to our decision in these cases. 
+III 
+A 
+We start with the text of VRA § 2. It now provides: 
+“(a) No voting qualifcation or prerequisite to voting 
+or standard, practice, or procedure shall be imposed or 
+applied by any State or political subdivision in a manner 
+which results in a denial or abridgement of the right of 
+any citizen of the United States to vote on account of 
+race or color, or in contravention of the guarantees set 
+forth in section 10303(f)(2) of this title, as provided in 
+subsection (b). 
+“(b) A violation of subsection (a) is established if, 
+based on the totality of circumstances, it is shown that 
+the political processes leading to nomination or election 
+in the State or political subdivision are not equally open 
+to participation by members of a class of citizens pro­
+tected by subsection (a) in that its members have less 
+opportunity than other members of the electorate to 
+participate in the political process and to elect repre­
+sentatives of their choice. The extent to which mem­
+bers of a protected class have been elected to offce in 
+the State or political subdivision is one circumstance 
+which may be considered: Provided, That nothing in this 
+8 Letter from E. Kneedler, Deputy Solicitor General, to S. Harris, Clerk 
+of Court (Feb. 16, 2021). 
+9 Ibid. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+667 
+Opinion of the Court 
+section establishes a right to have members of a pro­
+tected class elected in numbers equal to their proportion 
+in the population.” 52 U. S. C. § 10301. 
+In Gingles, our seminal § 2 vote-dilution case, the Court 
+quoted the text of amended § 2 and then jumped right to the 
+Senate Judiciary Committee Report, which focused on the 
+issue of vote dilution. 478 U. S., at 36–37, 43, and n. 7. Our 
+many subsequent vote-dilution cases have largely followed 
+the path that Gingles charted. But because this is our frst 
+§ 2 time, place, or manner case, a fresh look at the statutory 
+text is appropriate. Today, our statutory interpretation 
+cases almost always start with a careful consideration of the 
+text, and there is no reason to do otherwise here. 
+B 
+Section 2(a), as noted, omits the phrase “to deny or abridge 
+the right . . . to vote on account of race or color,” which the 
+Bolden plurality had interpreted to require proof of discrimi­
+natory intent. In place of that language, § 2(a) substitutes 
+the phrase “in a manner which results in a denial or abridge­
+ment of the right . . . to vote on account of race or color.” 
+(Emphasis added.) We need not decide what this text would 
+mean if it stood alone because § 2(b), which was added to win 
+Senate approval, explains what must be shown to establish 
+a § 2 violation. Section 2(b) states that § 2 is violated only 
+where “the political processes leading to nomination or elec­
+tion” are not “equally open to participation” by members of 
+the relevant protected group “in that its members have less 
+opportunity than other members of the electorate to partici­
+pate in the political process and to elect representatives of 
+their choice.” (Emphasis added.) 
+The key requirement is that the political processes leading 
+to nomination and election (here, the process of voting) must 
+be “equally open” to minority and non-minority groups alike, 
+and the most relevant defnition of the term “open,” as used 
+in § 2(b), is “without restrictions as to who may participate,” 
+Page Proof Pending Publication
+
+668 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+Random House Dictionary of the English Language 1008 (J. 
+Stein ed. 1966), or “requiring no special status, identifcation, 
+or permit for entry or participation,” Webster's Third New 
+International Dictionary 1579 (1976). 
+What § 2(b) means by voting that is not “equally open” is 
+further explained by this language: “in that its members 
+have less opportunity than other members of the electorate 
+to participate in the political process and to elect representa­
+tives of their choice.” The phrase “in that” is “used to spec­
+ify the respect in which a statement is true.” 10 
+Thus, equal 
+openness and equal opportunity are not separate require­
+ments. Instead, equal opportunity helps to explain the 
+meaning of equal openness. And the term “opportunity” 
+means, among other things, “a combination of circumstances, 
+time, and place suitable or favorable for a particular activity 
+or action.” Id., at 1583; see also Random House Dictionary 
+of the English Language, at 1010 (“an appropriate or favor­
+able time or occasion,” “a situation or condition favorable for 
+attainment of a goal”). 
+Putting these terms together, it appears that the core of 
+§ 2(b) is the requirement that voting be “equally open.” The 
+statute's reference to equal “opportunity” may stretch that 
+concept to some degree to include consideration of a person's 
+ability to use the means that are equally open. But equal 
+openness remains the touchstone. 
+C 
+One other important feature of § 2(b) stands out. The pro­
+vision requires consideration of “the totality of circum­
+stances.” Thus, any circumstance that has a logical bearing 
+on whether voting is “equally open” and affords equal “op­
+10 The New Oxford American Dictionary 851 (2d ed. 2005); see 7 Oxford 
+English Dictionary 763 (2d ed. 1989) (“in presence, view, or consequence 
+of the fact that”); Webster's New International Dictionary 1253 (2d ed. 
+1934) (“Because; for the reason that”). 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+669 
+Opinion of the Court 
+portunity” may be considered. We will not attempt to com­
+pile an exhaustive list, but several important circumstances 
+should be mentioned. 
+1 
+1. First, the size of the burden imposed by a challenged 
+voting rule is highly relevant. The concepts of “open[ness]” 
+and “opportunity” connote the absence of obstacles and bur­
+dens that block or seriously hinder voting, and therefore the 
+size of the burden imposed by a voting rule is important. 
+After all, every voting rule imposes a burden of some sort. 
+Voting takes time and, for almost everyone, some travel, 
+even if only to a nearby mailbox. Casting a vote, whether 
+by following the directions for using a voting machine or 
+completing a paper ballot, requires compliance with certain 
+rules. But because voting necessarily requires some effort 
+and compliance with some rules, the concept of a voting sys­
+tem that is “equally open” and that furnishes an equal 
+“opportunity” to cast a ballot must tolerate the “usual bur­
+dens of voting.” Crawford v. Marion County Election Bd., 
+553 U. S. 181, 198 (2008) (opinion of Stevens, J.). Mere incon­
+venience cannot be enough to demonstrate a violation of § 2.11 
+2. For similar reasons, the degree to which a voting rule 
+departs from what was standard practice when § 2 was 
+11 There is a difference between openness and opportunity, on the one 
+hand, and the absence of inconvenience, on the other. For example, sup­
+pose that an exhibit at a museum in a particular city is open to everyone 
+free of charge every day of the week for several months. Some residents 
+of the city who have the opportunity to view the exhibit may fnd it incon­
+venient to do so for many reasons—the problem of fnding parking, dislike 
+of public transportation, anticipation that the exhibit will be crowded, a 
+plethora of weekend chores and obligations, etc. Or, to take another ex­
+ample, a college course may be open to all students and all may have the 
+opportunity to enroll, but some students may fnd it inconvenient to take 
+the class for a variety of reasons. For example, classes may occur too 
+early in the morning or on Friday afternoon; too much reading may be 
+assigned; the professor may have a reputation as a hard grader; etc. 
+Page Proof Pending Publication
+
+670 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+amended in 1982 is a relevant consideration. Because every 
+voting rule imposes a burden of some sort, it is useful to 
+have benchmarks with which the burdens imposed by a chal­
+lenged rule can be compared. The burdens associated with 
+the rules in widespread use when § 2 was adopted are there­
+fore useful in gauging whether the burdens imposed by a 
+challenged rule are suffcient to prevent voting from being 
+equally “open” or furnishing an equal “opportunity” to vote 
+in the sense meant by § 2. Therefore, it is relevant that in 
+1982 States typically required nearly all voters to cast their 
+ballots in person on election day and allowed only narrow 
+and tightly defned categories of voters to cast absentee 
+ballots. See, e. g., 17 N. Y. Elec. Law Ann. § 8–100 et seq. 
+(West 1978), § 8–300 et seq. (in-person voting), § 8–400 et seq. 
+(limited-excuse absentee voting); Pa. Stat. Ann., Tit. 25, 
+§ 3045 et seq. (Purdon 1963) (in-person voting), § 3149.1 et seq. 
+(limited-excuse absentee voting); see § 3146.1 (Purdon Cum. 
+Supp. 1993) (same); Ohio Rev. Code Ann. § 3501.02 et seq. 
+(Lexis 1972) (in-person voting), § 3509.01 et seq. (limited­
+excuse absentee voting); see § 3509.02 (Lexis Supp. 1986) 
+(same); Fla. Stat. Ann. § 101.011 et seq. (1973) (in-person vot­
+ing), § 101.62 et seq. (limited-excuse absentee voting); see 
+§ 97.063 (1982) (same); Ill. Rev. Stat., ch. 46, § 17–1 et seq. 
+(West 1977) (in-person voting), § 19–1 et seq. (limited-excuse 
+absentee voting); D. C. Code §§ 1–1109, 1–1110 (1973) (in­
+person voting and limited-excuse absentee voting); see 
+§ 1–1313 (1981) (same). As of January 1980, only three 
+States permitted no-excuse absentee voting. See Gronke & 
+Galanes-Rosenbaum, America Votes! 261, 267–269 (B. Grif­
+fth ed. 2008); see also J. Sargent et al., Congressional Re­
+search Service, The Growth of Early and Nonprecinct Place 
+Balloting, in Election Laws of the Fifty States and the Dis­
+trict of Columbia (rev. 1976). We doubt that Congress in­
+tended to uproot facially neutral time, place, and manner reg­
+ulations that have a long pedigree or are in widespread use 
+in the United States. We have no need to decide whether 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+671 
+Opinion of the Court 
+adherence to, or a return to, a 1982 framework is neces­
+sarily lawful under § 2, but the degree to which a chal­
+lenged rule has a long pedigree or is in widespread use in 
+the United States is a circumstance that must be taken into 
+account. 
+3. The size of any disparities in a rule's impact on mem­
+bers of different racial or ethnic groups is also an important 
+factor to consider. Small disparities are less likely than 
+large ones to indicate that a system is not equally open. To 
+the extent that minority and non-minority groups differ with 
+respect to employment, wealth, and education, even neutral 
+regulations, no matter how crafted, may well result in some 
+predictable disparities in rates of voting and noncompliance 
+with voting rules. But the mere fact there is some disparity 
+in impact does not necessarily mean that a system is not 
+equally open or that it does not give everyone an equal op­
+portunity to vote. The size of any disparity matters. And 
+in assessing the size of any disparity, a meaningful compari­
+son is essential. What are at bottom very small differences 
+should not be artifcially magnifed. E. g., Frank v. Walker, 
+768 F. 3d 744, 752, n. 3 (CA7 2014). 
+4. Next, courts must consider the opportunities provided 
+by a State's entire system of voting when assessing the bur­
+den imposed by a challenged provision. This follows from 
+§ 2(b)'s reference to the collective concept of a State's “politi­
+cal processes” and its “political process” as a whole. Thus, 
+where a State provides multiple ways to vote, any burden 
+imposed on voters who choose one of the available options 
+cannot be evaluated without also taking into account the 
+other available means. 
+5. Finally, the strength of the state interests served by a 
+challenged voting rule is also an important factor that must 
+be taken into account. As noted, every voting rule imposes 
+a burden of some sort, and therefore, in determining “based 
+on the totality of circumstances” whether a rule goes too far, 
+it is important to consider the reason for the rule. Rules 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+672 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+that are supported by strong state interests are less likely 
+to violate § 2. 
+One strong and entirely legitimate state interest is the 
+prevention of fraud. Fraud can affect the outcome of a close 
+election, and fraudulent votes dilute the right of citizens to 
+cast ballots that carry appropriate weight. Fraud can also 
+undermine public confdence in the fairness of elections and 
+the perceived legitimacy of the announced outcome. 
+Ensuring that every vote is cast freely, without intimida­
+tion or undue infuence, is also a valid and important state 
+interest. This interest helped to spur the adoption of what 
+soon became standard practice in this country and in other 
+democratic nations the world round: the use of private voting 
+booths. See Burson v. Freeman, 504 U. S. 191, 202–205 
+(1992) (plurality opinion). 
+2 
+While the factors set out above are important, others con­
+sidered by some lower courts are less helpful in a case like 
+the ones at hand. First, it is important to keep in mind that 
+the Gingles or “Senate” factors grew out of and were de­
+signed for use in vote-dilution cases. Some of those factors 
+are plainly inapplicable in a case involving a challenge to a 
+facially neutral time, place, or manner voting rule. Factors 
+three and four concern districting and election procedures 
+like “majority vote requirements,” “anti-single shot provi­
+sions,” 12 and a “candidate slating process.” 13 
+See Gingles, 
+12 Where voters are allowed to vote for multiple candidates in a race for 
+multiple seats, single-shot voting is the practice of voting for only one 
+candidate. “ ` “Single-shot voting enables a minority group to win some 
+at-large seats if it concentrates its vote behind a limited number of candi­
+dates and if the vote of the majority is divided among a number of candi­
+dates.” ' ” Gingles, 478 U. S., at 38–39, n. 5 (quoting City of Rome v. 
+United States, 446 U. S. 156, 184, n. 19 (1980)); see also United States 
+Commission on Civil Rights, The Voting Rights Act: Ten Years After 206– 
+207 (1975). 
+13 Slating has been described as “a process in which some infuential non­
+governmental organization selects and endorses a group or `slate' of 
+
+Cite as: 594 U. S. 647 (2021) 
+673 
+Opinion of the Court 
+478 U. S., at 37 (internal quotation marks omitted). Factors 
+two, six, and seven (which concern racially polarized voting, 
+racially tinged campaign appeals, and the election of 
+minority-group candidates), ibid., have a bearing on whether 
+a districting plan affects the opportunity of minority voters 
+to elect their candidates of choice. But in cases involving 
+neutral time, place, and manner rules, the only relevance of 
+these and the remaining factors is to show that minority 
+group members suffered discrimination in the past (factor 
+one) and that effects of that discrimination persist (factor 
+fve). Id., at 36–37. We do not suggest that these factors 
+should be disregarded. After all, § 2(b) requires consider­
+ation of “the totality of circumstances.” But their relevance 
+is much less direct. 
+We also do not fnd the disparate-impact model employed 
+in Title VII and Fair Housing Act cases useful here. The 
+text of the relevant provisions of Title VII and the Fair 
+Housing Act differ from that of VRA § 2, and it is not obvious 
+why Congress would conform rules regulating voting to 
+those regulating employment and housing. For example, we 
+think it inappropriate to read § 2 to impose a strict “necessity 
+requirement” that would force States to demonstrate that 
+their legitimate interests can be accomplished only by means 
+of the voting regulations in question. Stephanopoulos, Dis­
+parate Impact, Unifed Law, 128 Yale L. J. 1566, 1617–1619 
+(2019) (advocating such a requirement). Demanding such a 
+tight ft would have the effect of invalidating a great many 
+neutral voting regulations with long pedigrees that are rea­
+sonable means of pursuing legitimate interests. It would 
+also transfer much of the authority to regulate election pro-
+candidates, rendering the election little more than a stamp of approval for 
+the candidates selected.” Westwego Citizens for Better Govt. v. West­
+wego, 946 F. 2d 1109, 1116, n. 5 (CA5 1991). Exclusion from such a system 
+can make it diffcult for minority groups to elect their preferred candi­
+dates. See, e. g., White v. Regester, 412 U. S. 755, 766–767, and n. 11 (1973) 
+(describing one example). 
+Page Proof Pending Publication
+
+674 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+cedures from the States to the federal courts. For those 
+reasons, the Title VII and Fair Housing Act models are un­
+helpful in § 2 cases. 
+D 
+The interpretation set out above follows directly from 
+what §2 commands: consideration of “the totality of circum­
+stances” that have a bearing on whether a State makes vot­
+ing “equally open” to all and gives everyone an equal “oppor­
+tunity” to vote. The dissent, by contrast, would rewrite the 
+text of § 2 and make it turn almost entirely on just one cir-
+cumstance—disparate impact. 
+That is a radical project, and the dissent strains mightily 
+to obscure its objective. To that end, it spends 20 pages 
+discussing matters that have little bearing on the questions 
+before us. The dissent provides historical background that 
+all Americans should remember, see post, at 692–696 (opinion 
+of Kagan, J.), but that background does not tell us how to 
+decide these cases. The dissent quarrels with the decision 
+in Shelby County v. Holder, 570 U. S. 529 (2013), see post, at 
+696–698, which concerned §§ 4 and 5 of the VRA, not § 2. It 
+discusses all sorts of voting rules that are not at issue here. 
+See post, at 698–701. And it dwells on points of law that 
+nobody disputes: that § 2 applies to a broad range of voting 
+rules, practices, and procedures; that an “abridgement” of 
+the right to vote under § 2 does not require outright denial 
+of the right; that § 2 does not demand proof of discriminatory 
+purpose; and that a “facially neutral” law or practice may 
+violate that provision. See post, at 701–709. 
+Only after this extended effort at misdirection is the dis­
+sent's aim fnally unveiled: to undo as much as possible the 
+compromise that was reached between the House and Senate 
+when § 2 was amended in 1982. Recall that the version origi­
+nally passed by the House did not contain § 2(b) and was 
+thought to prohibit any voting practice that had “discrimina­
+tory effects,” loosely defned. See supra, at 658–659. That 
+is the freewheeling disparate-impact regime the dissent 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+675 
+Opinion of the Court 
+wants to impose on the States. But the version enacted into 
+law includes § 2(b), and that subsection directs us to consider 
+“the totality of circumstances,” not, as the dissent would 
+have it, the totality of just one circumstance.14 
+There is 
+nothing to the dissent's charge that we are departing 
+from the statutory text by identifying some of those 
+considerations. 
+We have listed fve relevant circumstances and have ex­
+plained why they all stem from the statutory text and have 
+a bearing on the determination that § 2 requires. The dis­
+sent does not mention a single additional consideration, and 
+it does its best to push aside all but one of the circumstances 
+we discuss. It entirely rejects three of them: the size of the 
+burden imposed by a challenged rule, see post, at 711–712, 
+the landscape of voting rules both in 1982 and in the present, 
+post, at 713–714,15 and the availability of other ways to vote, 
+14 The dissent erroneously claims that the Senate-House compromise was 
+only about proportional representation and not about “the equal-access 
+right” at issue in the present cases. Post, at 708, n. 6. The text of the 
+bill initially passed by the House had no equal-access right. See H. R. 
+Rep. No. 97–227, p. 48 (1981); H. R. 3112, 97th Cong., 1st Sess., § 2, p. 8 
+(introduced Oct. 7, 1981). Section 2(b) was the Senate's creation, and that 
+provision is what directed courts to look beyond mere “results” to whether 
+a State's “political processes” are “equally open,” considering “the totality 
+of circumstances.” See Mississippi Republican Executive Committee v. 
+Brooks, 469 U. S. 1002, 1010 (1984) (Rehnquist, J., dissenting) (“The com­
+promise bill retained the `results' language but also incorporated language 
+directly from this Court's opinion in White v. Regester”). And while the 
+proviso on proportional representation may not apply as directly in this 
+suit, it is still a signal that § 2 imposes something other than a pure 
+disparate-impact regime. 
+15 The dissent objects to consideration of the 1982 landscape because 
+even rules that were prevalent at that time are invalid under § 2 if they, 
+well, violate § 2. Post, at 713. We of course agree with that tautology. 
+But the question is what it means to provide equal opportunity, and given 
+that every voting rule imposes some amount of burden, rules that were 
+and are commonplace are useful comparators when considering the totality 
+of circumstances. Unlike the dissent, Congress did not set its sights 
+on every facially neutral time, place, or manner voting rule in exist­
+
+Page Proof Pending Publication
+676 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+post, at 712–713. Unable to bring itself to completely reject 
+consideration of the state interests that a challenged rule 
+serves, the dissent tries to diminish the signifcance of this 
+circumstance as much as possible. See post, at 715–718. 
+According to the dissent, an interest served by a voting rule, 
+no matter how compelling, cannot support the rule unless a 
+State can prove to the satisfaction of the courts that this 
+interest could not be served by any other means. Post, at 
+706–707, 715–718. Such a requirement has no footing in the 
+text of § 2 or our precedent construing it.16 
+ence. See, e. g., S. Rep. No. 97–417, at 10, n. 22 (describing what the Sen­
+ate Judiciary Committee viewed as “blatant direct impediments to 
+voting”). 
+16 For support, the dissent offers a baseless reading of one of our vote-
+dilution decisions. In Houston Lawyers' Assn., 501 U. S. 419, we consid­
+ered a § 2 challenge to an electoral scheme wherein all trial judges in a 
+judicial district were elected on a district-wide basis. Id., at 422. The 
+State asserted that it had a strong interest in district-wide judicial elec­
+tions on the theory that they make every individual judge at least partly 
+accountable to minority voters in the jurisdiction. Id., at 424, 426. That 
+unique interest, the State contended, should have “automatically” ex­
+empted the electoral scheme from § 2 scrutiny altogether. Id., at 426. 
+We disagreed, holding that the State's interest was instead “a legitimate 
+factor to be considered by courts among the `totality of circumstances' in 
+determining whether a § 2 violation has occurred.” Ibid. To illustrate 
+why an “automati[c]” exemption from § 2's coverage was inappropriate, 
+the Court hypothesized a case involving an “uncouth” district shaped like 
+the one in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), for which an 
+inquiry under § 2 “would at least arguably be required.” 501 U. S., at 
+427. The Court then wrote the language upon which the dissent seizes: 
+“Placing elections for single-member offces entirely beyond the scope of 
+coverage of § 2 would preclude such an inquiry, even if the State's interest 
+in maintaining the `uncouth' electoral system was trivial or illusory and 
+even if any resulting impairment of a minority group's voting strength 
+could be remedied without signifcantly impairing the State's interest in 
+electing judges on a district-wide basis.” Id., at 427–428. 
+That reductio ad absurdum, used to demonstrate only why an automatic 
+exemption from § 2 scrutiny was inappropriate, did not announce an “in­
+quiry” at all—much less the least-burdensome-means requirement the dis­
+sent would have us smuggle in from materially different statutory re­
+
+Cite as: 594 U. S. 647 (2021) 
+677 
+Opinion of the Court 
+That requirement also would have the potential to invali­
+date just about any voting rule a State adopts. Take the 
+example of a State's interest in preventing voting fraud. 
+Even if a State could point to a history of serious voting 
+fraud within its own borders, the dissent would apparently 
+strike down a rule designed to prevent fraud unless the State 
+could demonstrate an inability to combat voting fraud in any 
+other way, such as by hiring more investigators and prosecu­
+tors, prioritizing voting fraud investigations, and heighten­
+ing criminal penalties. Nothing about equal openness and 
+equal opportunity dictates such a high bar for States to pur­
+sue their legitimate interests. 
+With all other circumstances swept away, all that remains 
+in the dissent's approach is the size of any disparity in a 
+rule's impact on members of protected groups. As we have 
+noted, differences in employment, wealth, and education may 
+make it virtually impossible for a State to devise rules that 
+do not have some disparate impact. But under the dissent's 
+interpretation of § 2, any “statistically signifcant” dispar­
+ity—wherever that is in the statute—may be enough to take 
+down even facially neutral voting rules with long pedigrees 
+that reasonably pursue important state interests. Post, at 
+704, n. 4, 708–709, 721.17 
+gimes. Post, at 707, n. 5, 715. Perhaps that is why no one—not the 
+parties, not the United States, not the 36 other amici, not the courts 
+below, and certainly not this Court in subsequent decisions—has advanced 
+the dissent's surprising reading of a single phrase in Houston Lawyers 
+Assn. The dissent apparently thinks that in 1991 we silently abrogated 
+the principle that the nature of a State's interest is but one of many factors 
+to consider, see Thornburg v. Gingles, 478 U. S. 30, 44–45 (1986), and that 
+our subsequent cases have erred by failing simply to ask whether a less 
+burdensome measure would suffce. Who knew? 
+17 We do not think § 2 is so procrustean. Statistical signifcance may 
+provide “evidence that something besides random error is at work,” Fed­
+eral Judicial Center, Reference Manual on Scientifc Evidence 252 (3d ed. 
+2011), but it does not necessarily determine causes, and as the dissent 
+acknowledges, post, at 704, n. 4, it is not the be-all and end-all of disparate-
+impact analysis. See Federal Judicial Center, Reference Manual, at 252 
+Page Proof Pending Publication
+
+678 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+Section 2 of the Voting Rights Act provides vital protec­
+tion against discriminatory voting rules, and no one suggests 
+that discrimination in voting has been extirpated or that the 
+threat has been eliminated. But § 2 does not deprive the 
+States of their authority to establish non-discriminatory vot­
+ing rules, and that is precisely what the dissent's radical in­
+terpretation would mean in practice. The dissent is correct 
+that the Voting Rights Act exemplifes our country's commit­
+ment to democracy, but there is nothing democratic about 
+the dissent's attempt to bring about a wholesale transfer of 
+the authority to set voting rules from the States to the fed­
+eral courts. 
+IV 
+A 
+In light of the principles set out above, neither Arizona's 
+out-of-precinct rule nor its ballot-collection law violates § 2 
+of the VRA. Arizona's out-of-precinct rule enforces the re­
+quirement that voters who choose to vote in person on elec­
+tion day must do so in their assigned precincts. Having to 
+identify one's own polling place and then travel there to vote 
+does not exceed the “usual burdens of voting.” Crawford, 
+553 U. S., at 198 (opinion of Stevens, J.) (noting the same 
+about making a trip to the department of motor vehicles). 
+On the contrary, these tasks are quintessential examples of 
+the usual burdens of voting. 
+Not only are these unremarkable burdens, but the District 
+Court's uncontested fndings show that the State made ex­
+(“[S]ignifcant differences . . . are not evidence that [what is at work] is 
+legally or practically important. Statisticians distinguish between statis­
+tical and practical signifcance to make the point. When practical signif­
+cance is lacking—when the size of a disparity is negligible—there is no 
+reason to worry about statistical signifcance”); ibid., n. 102 (citing authori­
+ties). Moreover, whatever might be “standard” in other contexts, post, at 
+704, n. 4, we have explained that VRA §2's focus on equal “open[ness]” 
+and equal “opportunity” does not impose a standard disparate-impact 
+regime. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+679 
+Opinion of the Court 
+tensive efforts to reduce their impact on the number of valid 
+votes ultimately cast. The State makes accurate precinct 
+information available to all voters. When precincts or poll­
+ing places are altered between elections, each registered 
+voter is sent a notice showing the voter's new polling place. 
+329 F. Supp. 3d, at 859. Arizona law also mandates that 
+election offcials send a sample ballot to each household that 
+includes a registered voter who has not opted to be placed 
+on the permanent early voter list, Ariz. Rev. Stat. Ann. § 16– 
+510(C) (2015), and this mailing also identifes the voter's 
+proper polling location, 329 F. Supp. 3d, at 859. In addition, 
+the Arizona secretary of state's offce sends voters pamphlets 
+that include information (in both English and Spanish) about 
+how to identify their assigned precinct. Ibid. 
+Polling place information is also made available by other 
+means. The secretary of state's offce operates websites 
+that provide voter-specifc polling place information and 
+allow voters to make inquiries to the secretary's staff. Ibid. 
+Arizona's two most populous counties, Maricopa and Pima, 
+provide online polling place locators with information avail­
+able in English and Spanish. Ibid. Other groups offer sim­
+ilar online tools. Ibid. Voters may also identify their as­
+signed polling place by calling the offce of their respective 
+county recorder. Ibid. And on election day, poll workers 
+in at least some counties are trained to redirect voters who 
+arrive at the wrong precinct. Ibid., see Tr. 1559, 1586; Tr. 
+Exh. 370 (Pima County Elections Inspectors Handbook). 
+The burdens of identifying and traveling to one's assigned 
+precinct are also modest when considering Arizona's “politi­
+cal processes” as a whole. The Court of Appeals noted that 
+Arizona leads other States in the rate of votes rejected on 
+the ground that they were cast in the wrong precinct, and 
+the court attributed this to frequent changes in polling loca­
+tions, confusing placement of polling places, and high levels 
+of residential mobility. 948 F. 3d, at 1000–1004. But even 
+if it is marginally harder for Arizona voters to fnd their 
+Page Proof Pending Publication
+
+680 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+assigned polling places, the State offers other easy ways to 
+vote. Any voter can request an early ballot without ex­
+cuse. Any voter can ask to be placed on the permanent 
+early voter list so that an early ballot will be mailed auto­
+matically. Voters may drop off their early ballots at any 
+polling place, even one to which they are not assigned. And 
+for nearly a month before election day, any voter can vote in 
+person at an early voting location in his or her county. The 
+availability of those options likely explains why out-of­
+precinct votes on election day make up such a small and ap­
+parently diminishing portion of overall ballots cast—0.47% 
+of all ballots in the 2012 general election and just 0.15% in 
+2016. 329 F. Supp. 3d, at 872. 
+Next, the racial disparity in burdens allegedly caused by 
+the out-of-precinct policy is small in absolute terms. The 
+District Court accepted the plaintiffs' evidence that, of the 
+Arizona counties that reported out-of-precinct ballots in the 
+2016 general election, a little over 1% of Hispanic voters, 
+1% of African-American voters, and 1% of Native American 
+voters who voted on election day cast an out-of-precinct bal­
+lot. Ibid. For non-minority voters, the rate was around 
+0.5%. Ibid. (citing Tr. Exh. 97, at 3, 20–21). A policy that 
+appears to work for 98% or more of voters to whom it 
+applies—minority and non-minority alike—is unlikely to 
+render a system unequally open. 
+The Court of Appeals attempted to paint a different pic­
+ture, but its use of statistics was highly misleading for rea­
+sons that were well explained by Judge Easterbrook in a § 2 
+case involving voter IDs. As he put it, a distorted picture 
+can be created by dividing one percentage by another. 
+Frank, 768 F. 3d, at 752, n. 3. He gave this example: “If 
+99.9% of whites had photo IDs, and 99.7% of blacks did,” it 
+could be said that “ `blacks are three times as likely as whites 
+to lack qualifying ID' (0.3 ÷ 0.1 = 3), but such a statement 
+would mask the fact that the populations were effectively 
+identical.” Ibid. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+681 
+Opinion of the Court 
+That is exactly what the en banc Ninth Circuit did here. 
+The District Court found that among the counties that re­
+ported out-of-precinct ballots in the 2016 general election, 
+roughly 99% of Hispanic voters, 99% of African-American 
+voters, and 99% of Native American voters who voted on 
+election day cast their ballots in the right precinct, while 
+roughly 99.5% of non-minority voters did so. 329 F. Supp. 
+3d, at 872. Based on these statistics, the en banc Ninth Cir­
+cuit concluded that “minority voters in Arizona cast [out-of­
+precinct] ballots at twice the rate of white voters.” 948 
+F. 3d, at 1014; see id., at 1004–1005. This is precisely the 
+sort of statistical manipulation that Judge Easterbrook 
+rightly criticized, namely, 1.0 ÷ 0.5 = 2. Properly under­
+stood, the statistics show only a small disparity that provides 
+little support for concluding that Arizona's political processes 
+are not equally open. 
+The Court of Appeals' decision also failed to give appro­
+priate weight to the state interests that the out-of-precinct 
+rule serves. Not counting out-of-precinct votes induces 
+compliance with the requirement that Arizonans who choose 
+to vote in-person on election day do so at their assigned poll­
+ing places. And as the District Court recognized, precinct-
+based voting furthers important state interests. It helps to 
+distribute voters more evenly among polling places and thus 
+reduces wait times. It can put polling places closer to voter 
+residences than would a more centralized voting-center 
+model. In addition, precinct-based voting helps to ensure 
+that each voter receives a ballot that lists only the candidates 
+and public questions on which he or she can vote, and this 
+orderly administration tends to decrease voter confusion and 
+increase voter confdence in elections. See 329 F. Supp. 3d, 
+at 878. It is also signifcant that precinct-based voting has 
+a long pedigree in the United States. See 948 F. 3d, at 1062– 
+1063 (Bybee, J., dissenting) (citing J. Harris, Election Admin­
+istration in the United States 206–207 (1934)). And the pol­
+icy of not counting out-of-precinct ballots is widespread. 
+Page Proof Pending Publication
+
+682 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+See 948 F. 3d, at 1072–1088 (collecting and categorizing 
+state laws). 
+The Court of Appeals discounted the State's interests 
+because, in its view, there was no evidence that a less restric­
+tive alternative would threaten the integrity of precinct-
+based voting. The court thought the State had no good rea­
+son for not counting an out-of-precinct voter's choices with 
+respect to the candidates and issues also on the ballot in the 
+voter's proper precinct. See id., at 1030–1031. We dis­
+agree with this reasoning. 
+Section 2 does not require a State to show that its chosen 
+policy is absolutely necessary or that a less restrictive means 
+would not adequately serve the State's objectives. And the 
+Court of Appeals' preferred alternative would have obvious 
+disadvantages. Partially counting out-of-precinct ballots 
+would complicate the process of tabulation and could lead to 
+disputes and delay. In addition, as one of the en banc dis­
+senters noted, it would tend to encourage voters who are 
+primarily interested in only national or state-wide elections 
+to vote in whichever place is most convenient even if they 
+know that it is not their assigned polling place. See id., at 
+1065–1066 (opinion of Bybee, J.). 
+In light of the modest burdens allegedly imposed by Arizo­
+na's out-of-precinct policy, the small size of its disparate im­
+pact, and the State's justifcations, we conclude the rule does 
+not violate § 2 of the VRA.18 
+18 In arguing that Arizona's out-of-precinct policy violates § 2, the dissent 
+focuses on the State's decisions about the siting of polling places and the 
+frequency with which voting precincts are changed. See post, at 722 
+(“Much of the story has to do with the siting and shifting of polling 
+places”). But the plaintiffs did not challenge those practices. See 329 
+F. Supp. 3d, at 873 (“Plaintiffs . . . do not challenge the manner in which 
+Arizona counties allocate and assign polling places or Arizona's require­
+ment that voters re-register to vote when they move”). The dissent is 
+thus left with the unenviable task of explaining how something like a 0.5% 
+disparity in discarded ballots between minority and non-minority groups 
+suffces to render Arizona's political processes not equally open to partici­
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+683 
+Opinion of the Court 
+B 
+HB 2023 likewise passes muster under the results test of 
+§ 2. Arizonans who receive early ballots can submit them 
+by going to a mailbox, a post offce, an early ballot drop box, 
+or an authorized election offcial's offce within the 27-day 
+early voting period. They can also drop off their ballots at 
+any polling place or voting center on election day, and in 
+order to do so, they can skip the line of voters waiting to 
+vote in person. 329 F. Supp. 3d, at 839 (citing ECF Doc. 
+361, ¶57). Making any of these trips—much like traveling 
+to an assigned polling place—falls squarely within the heart­
+land of the “usual burdens of voting.” Crawford, 553 U. S., 
+at 198 (opinion of Stevens, J.). And voters can also ask a 
+statutorily authorized proxy—a family member, a household 
+member, or a caregiver—to mail a ballot or drop it off at any 
+time within 27 days of an election. 
+Arizona also makes special provision for certain groups of 
+voters who are unable to use the early voting system. 
+Every county must establish a special election board to serve 
+voters who are “confned as the result of a continuing illness 
+or physical disability,” are unable to go to the polls on elec­
+tion day, and do not wish to cast an early vote by mail. Ariz. 
+Rev. Stat. Ann. § 16–549(C) (Cum. Supp. 2020). At the re­
+quest of a voter in this group, the board will deliver a ballot 
+in person and return it on the voter's behalf. §§ 16–549(C), 
+(E). Arizona law also requires employers to give employees 
+time off to vote when they are otherwise scheduled to work 
+certain shifts on election day. § 16–402 (2015). 
+The plaintiffs were unable to provide statistical evidence 
+showing that HB 2023 had a disparate impact on minority 
+voters. Instead, they called witnesses who testifed that 
+third-party ballot collection tends to be used most heavily in 
+pation. See supra, at 680. A voting rule with that effect would not be— 
+to use the dissent's forid example—one that a “minority vote suppressor 
+in Arizona” would want in his or her “bag of tricks.” Post, at 722. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+684 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+disadvantaged communities and that minorities in Arizona— 
+especially Native Americans—are disproportionately dis­
+advantaged. 329 F. Supp. 3d, at 868, 870. But from that 
+evidence the District Court could conclude only that prior to 
+HB 2023's enactment, “minorities generically were more 
+likely than non-minorities to return their early ballots with 
+the assistance of third parties.” Id., at 870. How much 
+more, the court could not say from the record. Ibid. Nei­
+ther can we. And without more concrete evidence, we can­
+not conclude that HB 2023 results in less opportunity to par­
+ticipate in the political process.19 
+19 Not one to let the absence of a key fnding get in the way, the dissent 
+concludes from its own review of the evidence that HB 2023 “prevents 
+many Native Americans from making effective use of one of the principal 
+means of voting in Arizona,” and that “[w]hat is an inconsequential burden 
+for others is for these citizens a severe hardship.” Post, at 727. What is 
+missing from those statements is any evidence about the actual size of the 
+disparity. (For that matter, by the time the dissent gets around to assess­
+ing HB 2023, it appears to have lost its zeal for statistical signifcance, 
+which is nowhere to be seen. See post, at 724–729, and n. 13.) The 
+reader will search in vain to discover where the District Court “found” to 
+what extent HB 2023 would make it “ `signifcantly more diffcult' ” for 
+Native Americans to vote. Post, at 728, n. 15 (citing 329 F. Supp. 3d, at 
+868, 870). Rather, “[b]ased on” the very same evidence the dissent cites, 
+the District Court could fnd only that minorities were “generically” more 
+likely than non-minorities to make use of third-party ballot-collection. 
+Id., at 870. The District Court's explanation as to why speaks for itself: 
+“Although there are signifcant socioeconomic disparities between mi­
+norities and non-minorities in Arizona, these disparities are an imprecise 
+proxy for disparities in ballot collection use. Plaintiffs do not argue that 
+all or even most socioeconomically disadvantaged voters use ballot collec­
+tion services, nor does the evidence support such a fnding. Rather, the 
+anecdotal estimates from individual ballot collectors indicate that a rela­
+tively small number of voters have used ballot collection services in past 
+elections.” Ibid.; see also id., at 881 (“[B]allot collection was used as a 
+[get-out-the-vote] strategy in mostly low-effcacy minority communities, 
+though the Court cannot say how often voters used ballot collection, nor 
+can it measure the degree or signifcance of any disparities in its usage” 
+(emphasis added)). 
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+685 
+Opinion of the Court 
+Even if the plaintiffs had shown a disparate burden caused 
+by HB 2023, the State's justifcations would suffce to avoid 
+§ 2 liability. “A State indisputably has a compelling interest 
+in preserving the integrity of its election process.” Purcell 
+v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam) (internal quo­
+tation marks omitted). Limiting the classes of persons who 
+may handle early ballots to those less likely to have ulterior 
+motives deters potential fraud and improves voter conf­
+dence. That was the view of the bipartisan Commission on 
+Federal Election Reform chaired by former President Jimmy 
+Carter and former Secretary of State James Baker. The 
+Carter-Baker Commission noted that “[a]bsentee balloting is 
+vulnerable to abuse in several ways: . . . . Citizens who vote 
+at home, at nursing homes, at the workplace, or in church 
+are more susceptible to pressure, overt and subtle, or to 
+intimidation.” Report of the Comm'n on Fed. Election Re­
+form, Building Confdence in U. S. Elections 46 (Sept. 2005). 
+The Commission warned that “[v]ote buying schemes are 
+far more diffcult to detect when citizens vote by mail,” and 
+it recommended that “States therefore should reduce the 
+risks of fraud and abuse in absentee voting by prohibiting 
+`third-party' organizations, candidates, and political party 
+activists from handling absentee ballots.” Ibid. The Com­
+mission ultimately recommended that States limit the classes 
+of persons who may handle absentee ballots to “the voter, an 
+acknowledged family member, the U. S. Postal Service or 
+other legitimate shipper, or election offcials.” Id., at 47. 
+HB 2023 is even more permissive in that it also authorizes 
+ballot-handling by a voter's household member and care­
+giver. See Ariz. Rev. Stat. Ann. § 16–1005(I)(2). Restric­
+tions on ballot collection are also common in other States. 
+See 948 F. 3d, at 1068–1069, 1088–1143 (Bybee, J., dissenting) 
+(collecting state provisions). 
+The Court of Appeals thought that the State's justifca­
+tions for HB 2023 were tenuous in large part because there 
+
+686 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+was no evidence that fraud in connection with early ballots 
+had occurred in Arizona. See id., at 1045–1046. But pre­
+vention of fraud is not the only legitimate interest served by 
+restrictions on ballot collection. As the Carter-Baker Com­
+mission recognized, third-party ballot collection can lead to 
+pressure and intimidation. And it should go without saying 
+that a State may take action to prevent election fraud with­
+out waiting for it to occur and be detected within its own 
+borders. Section 2's command that the political processes 
+remain equally open surely does not demand that “a State's 
+political system sustain some level of damage before the leg­
+islature [can] take corrective action.” Munro v. Socialist 
+Workers Party, 479 U. S. 189, 195 (1986). Fraud is a real 
+risk that accompanies mail-in voting even if Arizona had the 
+good fortune to avoid it. Election fraud has had serious con­
+sequences in other States. For example, the North Carolina 
+Board of Elections invalidated the results of a 2018 race for 
+a seat in the House of Representatives for evidence of fraud­
+ulent mail-in ballots.20 
+The Arizona Legislature was not ob­
+ligated to wait for something similar to happen closer to 
+home.21 
+20 See Blinder, Election Fraud in North Carolina Leads to New 
+Charges for Republican Operative, N. Y. Times, July 30, 2019, https:// 
+www.nytimes.com/2019/07/30/us/mccrae-dowless-indictment.html; Graham, 
+North Carolina Had No Choice, The Atlantic, Feb. 22, 2019, https://www. 
+theatlantic.com/politics/archive/2019/02/north-carolina-9th-fraud-board­
+orders-new-election/583369/. 
+21 The dissent's primary argument regarding HB 2023 concerns its effect 
+on Native Americans who live on remote reservations. The dissent notes 
+that many of these voters do not receive mail delivery at home, that the 
+nearest post offce may be some distance from their homes, and that they 
+may not have automobiles. Post, at 724–725. We do not dismiss these 
+problems, but for a number of reasons, they do not provide a basis for invali­
+dating HB 2023. The burdens that fall on remote communities are miti­
+gated by the long period of time prior to an election during which a vote may 
+be cast either in person or by mail and by the legality of having a ballot 
+picked up and mailed by family or household members. And in this suit, 
+no individual voter testifed that HB 2023 would make it signifcantly more 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+687 
+Opinion of the Court 
+As with the out-of-precinct policy, the modest evidence of 
+racially disparate burdens caused by HB 2023, in light of the 
+State's justifcations, leads us to the conclusion that the law 
+does not violate § 2 of the VRA. 
+V 
+We also granted certiorari to review whether the Court of 
+Appeals erred in concluding that HB 2023 was enacted with 
+a discriminatory purpose. The District Court found that it 
+was not, 329 F. Supp. 3d, at 882, and appellate review of that 
+conclusion is for clear error, Pullman-Standard v. Swint, 456 
+U. S. 273, 287–288 (1982). If the district court's view of the 
+evidence is plausible in light of the entire record, an appellate 
+court may not reverse even if it is convinced that it would 
+have weighed the evidence differently in the frst instance. 
+Anderson v. Bessemer City, 470 U. S. 564, 573–574 (1985). 
+“Where there are two permissible views of the evidence, 
+the factfnder's choice between them cannot be clearly 
+erroneous.” Id., at 574. 
+The District Court's fnding on the question of discrimina­
+tory intent had ample support in the record. Applying the 
+familiar approach outlined in Arlington Heights v. Metropol­
+itan Housing Development Corp., 429 U. S. 252, 266–268 
+(1977), the District Court considered the historical back­
+ground and the sequence of events leading to HB 2023's 
+enactment; it looked for any departures from the normal leg­
+islative process; it considered relevant legislative history; 
+diffcult for him or her to vote. 329 F. Supp. 3d, at 871. Moreover, the 
+Postal Service is required by law to “provide a maximum degree of effec­
+tive and regular postal services to rural areas, communities, and small 
+towns where post offces are not self-sustaining.” 39 U. S. C. § 101(b); see 
+also § 403(b)(3). Small post offces may not be closed “solely for operating 
+at a defcit,” § 101(b), and any decision to close or consolidate a post offce 
+may be appealed to the Postal Regulatory Commission, see § 404(d)(5). 
+An alleged failure by the Postal Service to comply with its statutory obli­
+gations in a particular location does not in itself provide a ground for 
+overturning a voting rule that applies throughout an entire State. 
+Page Proof Pending Publication
+
+688 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Opinion of the Court 
+and it weighed the law's impact on different racial groups. 
+See 329 F. Supp. 3d, at 879. 
+The court noted, among other things, that HB 2023's 
+enactment followed increased use of ballot collection as a 
+Democratic get-out-the-vote strategy and came “on the heels 
+of several prior efforts to restrict ballot collection, some of 
+which were spearheaded by former Arizona State Senator 
+Don Shooter.” Id., at 879. Shooter's own election in 2010 
+had been close and racially polarized. Aiming in part to 
+frustrate the Democratic Party's get-out-the-vote strategy, 
+Shooter made what the court termed “unfounded and often 
+far-fetched allegations of ballot collection fraud.” Id., at 
+880. But what came after the airing of Shooter's claims and 
+a “racially-tinged” video created by a private party was 
+a serious legislative debate on the wisdom of early mail-in 
+voting. Ibid.22 
+That debate, the District Court concluded, was sincere and 
+led to the passage of HB 2023 in 2016. Proponents of the 
+bill repeatedly argued that mail-in ballots are more suscepti­
+ble to fraud than in-person voting. Ibid. The bill found 
+support from a few minority offcials and organizations, one 
+of which expressed concern that ballot collectors were taking 
+advantage of elderly Latino voters. Ibid. And while some 
+opponents of the bill accused Republican legislators of har­
+boring racially discriminatory motives, that view was not 
+uniform. See ibid. One Democratic state senator pithily 
+described the “ `problem' ” HB 2023 aimed to “ `solv[e]' ” as 
+the fact that “ `one party is better at collecting ballots than 
+the other one.' ” Id., at 882 (quoting Tr. Exh. 25, at 35). 
+22 The District Court also noted prior attempts on the part of the Ari­
+zona Legislature to regulate or limit third-party ballot collection in 2011 
+and 2013. It reasonably concluded that any procedural irregularities in 
+those attempts had less probative value for inferring the purpose behind 
+HB 2023 because the bills were passed “during different legislative ses­
+sions by a substantially different composition of legislators.” 329 F. Supp. 
+3d, at 881. 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+689 
+Opinion of the Court 
+We are more than satisfed that the District Court's inter­
+pretation of the evidence is permissible. The spark for the 
+debate over mail-in voting may well have been provided by 
+one Senator's enfamed partisanship, but partisan motives 
+are not the same as racial motives. See Cooper v. Harris, 
+581 U. S. 285, 308 (2017). The District Court noted that the 
+voting preferences of members of a racial group may make 
+the former look like the latter, but it carefully distinguished 
+between the two. See 329 F. Supp. 3d, at 879, 882. And 
+while the District Court recognized that the “racially­
+tinged” video helped spur the debate about ballot collection, 
+it found no evidence that the legislature as a whole was im­
+bued with racial motives. Id., at 879–880. 
+The Court of Appeals did not dispute the District Court's 
+assessment of the sincerity of HB 2023's proponents. It 
+even agreed that some members of the legislature had a “sin­
+cere, though mistaken, non-race-based belief that there had 
+been fraud in third-party ballot collection, and that the prob­
+lem needed to be addressed.” 948 F. 3d, at 1040. The 
+Court of Appeals nevertheless concluded that the District 
+Court committed clear error by failing to apply a “ `cat's 
+paw' ” theory sometimes used in employment discrimination 
+cases. Id., at 1040–1041. A “cat's paw” is a “dupe” who is 
+“used by another to accomplish his purposes.” Webster's 
+New International Dictionary 425 (2d ed. 1934). A plaintiff 
+in a “cat's paw” case typically seeks to hold the plaintiff's 
+employer liable for “the animus of a supervisor who was not 
+charged with making the ultimate [adverse] employment 
+decision.” Staub v. Proctor Hospital, 562 U. S. 411, 415 
+(2011). 
+The “cat's paw” theory has no application to legislative 
+bodies. The theory rests on the agency relationship that ex­
+ists between an employer and a supervisor, but the legisla­
+tors who vote to adopt a bill are not the agents of the bill's 
+sponsor or proponents. Under our form of government, leg­
+islators have a duty to exercise their judgment and to repre­
+Page Proof Pending Publication
+
+690 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+sent their constituents. It is insulting to suggest that they 
+are mere dupes or tools. 
+*
+*
+* 
+Arizona's out-of-precinct policy and HB 2023 do not violate 
+§ 2 of the VRA, and HB 2023 was not enacted with a racially 
+discriminatory purpose. The judgment of the Court of Ap­
+peals is reversed, and the cases are remanded for further 
+proceedings consistent with this opinion. 
+It is so ordered. 
+Justice Gorsuch, with whom Justice Thomas joins, 
+concurring. 
+I join the Court's opinion in full, but fag one thing it does 
+not decide. Our cases have assumed—without deciding— 
+that the Voting Rights Act of 1965 furnishes an implied cause 
+of action under § 2. See Mobile v. Bolden, 446 U. S. 55, 
+60, and n. 8 (1980) (plurality opinion). Lower courts have 
+treated this as an open question. 
+E. g., Washington v. 
+Finlay, 664 F. 2d 913, 926 (CA4 1981). Because no party 
+argues that the plaintiffs lack a cause of action here, and 
+because the existence (or not) of a cause of action does not 
+go to a court's subject-matter jurisdiction, see Reyes Mata 
+v. Lynch, 576 U. S. 143, 150 (2015), this Court need not and 
+does not address that issue today. 
+Justice Kagan, with whom Justice Breyer and 
+Justice Sotomayor join, dissenting. 
+If a single statute represents the best of America, it is the 
+Voting Rights Act. It marries two great ideals: democracy 
+and racial equality. And it dedicates our country to carry­
+ing them out. Section 2, the provision at issue here, guaran­
+tees that members of every racial group will have equal 
+voting opportunities. Citizens of every race will have the 
+same shot to participate in the political process and to elect 
+representatives of their choice. They will all own our de­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+691 
+Kagan, J., dissenting 
+mocracy together—no one more and no one less than any 
+other. 
+If a single statute reminds us of the worst of America, it 
+is the Voting Rights Act. Because it was—and remains—so 
+necessary. Because a century after the Civil War was 
+fought, at the time of the Act's passage, the promise of politi­
+cal equality remained a distant dream for African American 
+citizens. Because States and localities continually “con­
+triv[ed] new rules,” mostly neutral on their face but discrimi­
+natory in operation, to keep minority voters from the polls. 
+South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966). 
+Because “Congress had reason to suppose” that States would 
+“try similar maneuvers in the future”—“pour[ing] old poison 
+into new bottles” to suppress minority votes. Ibid.; Reno v. 
+Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Sou­
+ter, J., concurring in part and dissenting in part). Because 
+Congress has been proved right. 
+The Voting Rights Act is ambitious, in both goal and scope. 
+When President Lyndon Johnson sent the bill to Congress, 
+ten days after John Lewis led marchers across the Edmund 
+Pettus Bridge, he explained that it was “carefully drafted to 
+meet its objective—the end of discrimination in voting in 
+America.” H. R. Doc. No. 120, 89th Cong., 1st Sess., 1–2 
+(1965). He was right about how the Act's drafting refected 
+its aim. “The end of discrimination in voting” is a far-
+reaching goal. And the Voting Rights Act's text is just as 
+far-reaching. A later amendment, adding the provision at 
+issue here, became necessary when this Court construed the 
+statute too narrowly. And in the last decade, this Court as­
+sailed the Act again, undoing its vital Section 5. See Shelby 
+County v. Holder, 570 U. S. 529 (2013). But Section 2 of the 
+Act remains, as written, as expansive as ever—demanding 
+that every citizen of this country possess a right at once 
+grand and obvious: the right to an equal opportunity to vote. 
+Today, the Court undermines Section 2 and the right it 
+provides. The majority fears that the statute Congress 
+
+692 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+wrote is too “radical”—that it will invalidate too many state 
+voting laws. See ante, at 674, 677–678. So the majority 
+writes its own set of rules, limiting Section 2 from multiple 
+directions. See ante, at 669–672. Wherever it can, the ma­
+jority gives a cramped reading to broad language. And then 
+it uses that reading to uphold two election laws from Arizona 
+that discriminate against minority voters. I could say—and 
+will in the following pages—that this is not how the Court is 
+supposed to interpret and apply statutes. But that ordinary 
+critique woefully undersells the problem. What is tragic 
+here is that the Court has (yet again) rewritten—in order to 
+weaken—a statute that stands as a monument to America's 
+greatness, and protects against its basest impulses. What 
+is tragic is that the Court has damaged a statute designed 
+to bring about “the end of discrimination in voting.” I re­
+spectfully dissent. 
+I 
+The Voting Rights Act of 1965 is an extraordinary law. 
+Rarely has a statute required so much sacrifce to ensure 
+its passage. Never has a statute done more to advance the 
+Nation's highest ideals. And few laws are more vital in the 
+current moment. Yet in the last decade, this Court has 
+treated no statute worse. To take the measure of today's 
+harm, a look to the Act's past must come frst. The idea is 
+not to recount, as the majority hurriedly does, some bygone 
+era of voting discrimination. See ante, at 655–656. It is in­
+stead to describe the electoral practices that the Act targets— 
+and to show the high stakes of the present controversy. 
+A 
+Democratic ideals in America got off to a glorious start; 
+democratic practice not so much. The Declaration of In­
+dependence made an awe-inspiring promise: to institute a 
+government “deriving [its] just powers from the consent of 
+the governed.” But for most of the Nation's frst century, 
+that pledge ran to white men only. The earliest state elec­
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+693 
+Kagan, J., dissenting 
+tion laws excluded from the franchise African Americans, 
+Native Americans, women, and those without property. See 
+A. Keyssar, The Right To Vote: The Contested History of 
+Democracy in the United States 8–21, 54–60 (2000). In 
+1855, on the precipice of the Civil War, only fve States per­
+mitted African Americans to vote. Id., at 55. And at the 
+federal level, our Court's most deplorable holding made sure 
+that no black people could enter the voting booth. See Dred 
+Scott v. Sandford, 19 How. 393 (1857). 
+But the “American ideal of political equality . . . could not 
+forever tolerate the limitation of the right to vote” to whites 
+only. Mobile v. Bolden, 446 U. S. 55, 103–104 (1980) (Mar­
+shall, J., dissenting). And a civil war, dedicated to ensuring 
+“government of the people, by the people, for the people,” 
+brought constitutional change. In 1870, after a hard-fought 
+battle over ratifcation, the Fifteenth Amendment carried 
+the Nation closer to its founding aspirations. “The right of 
+citizens of the United States to vote shall not be denied or 
+abridged by the United States or by any State on account of 
+race, color, or previous condition of servitude.” Those 
+words promised to enfranchise millions of black citizens who 
+only a decade earlier had been slaves. Frederick Douglass 
+held that the Amendment “means that we are placed upon 
+an equal footing with all other men”—that with the vote, 
+“liberty is to be the right of all.” 4 The Frederick Douglass 
+Papers 270–271 (J. Blassingame & J. McKivigan eds. 1991). 
+President Grant had seen much blood spilled in the Civil 
+War; now he spoke of the fruits of that sacrifce. In a self-
+described “unusual” message to Congress, he heralded the 
+Fifteenth Amendment as “a measure of grander importance 
+than any other one act of the kind from the foundation of our 
+free Government”—as “the most important event that has 
+occurred since the nation came into life.” Ulysses S. Grant, 
+Message to the Senate and House of Representatives (Mar. 
+30, 1870), in 7 Compilation of the Messages and Papers of the 
+Presidents 1789–1897, pp. 55–56 (J. Richardson ed. 1898). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+694 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+Momentous as the Fifteenth Amendment was, celebration 
+of its achievements soon proved premature. The Amend­
+ment's guarantees “quickly became dead letters in much of 
+the country.” Foner, The Strange Career of the Recon­
+struction Amendments, 108 Yale L. J. 2003, 2007 (1999). 
+African Americans daring to go to the polls often “met with 
+coordinated intimidation and violence.” Northwest Austin 
+Municipal Util. Dist. No. One v. Holder, 557 U. S. 193, 218– 
+219 (2009) (Thomas, J., concurring in judgment in part and 
+dissenting in part). And almost immediately, legislators dis­
+covered that bloodless actions could also suffce to limit the 
+electorate to white citizens. Many States, especially in the 
+South, suppressed the black vote through a dizzying array of 
+methods: literacy tests, poll taxes, registration requirements, 
+and property qualifcations. See Katzenbach, 383 U. S., at 
+310–312. Most of those laws, though facially neutral, gave 
+enough discretion to election offcials to prevent signifcant 
+effects on poor or uneducated whites. The idea, as one Vir­
+ginia representative put it, was “to disfranchise every negro 
+that [he] could disfranchise,” and “as few white people as 
+possible.” Keyssar 113. Decade after decade after decade, 
+election rules blocked African Americans—and in some 
+States, Hispanics and Native Americans too—from making 
+use of the ballot. See Oregon v. Mitchell, 400 U. S. 112, 132 
+(1970) (opinion of Black, J.) (discussing treatment of non-black 
+groups). By 1965, only 27% of black Georgians, 19% of black 
+Alabamians, and 7%—yes, 7%—of black Mississippians were 
+registered to vote. See C. Bullock, R. Gaddie, & J. Wert, 
+The Rise and Fall of the Voting Rights Act 23 (2016). 
+The civil rights movement, and the events of a single 
+Bloody Sunday, created pressure for change. Selma was the 
+heart of an Alabama county whose 15,000 black citizens in­
+cluded, in 1961, only 156 on the voting rolls. See D. Garrow, 
+Protest at Selma 31 (1978). In the frst days of 1965, the 
+city became the epicenter of demonstrations meant to force 
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+695 
+Kagan, J., dissenting 
+Southern election offcials to register African American 
+voters. As weeks went by without results, organizers an­
+nounced a march from Selma to Montgomery. On March 7, 
+some 600 protesters, led by future Congressman John Lewis, 
+sought to cross the Edmund Pettus Bridge. State troopers 
+in riot gear responded brutally: “Turning their nightsticks 
+horizontally, they rushed into the crowd, knocking people 
+over like bowling pins.” G. May, Bending Toward Justice 87 
+(2013). Then came men on horseback, “swinging their clubs 
+and ropes like cowboys driving cattle to market.” Ibid. 
+The protesters were beaten, knocked unconscious, and blood­
+ied. Lewis's skull was fractured. “I thought I was going to 
+die on this bridge,” he later recalled. Rojas, Selma Helped 
+Defne John Lewis's Life, N. Y. Times, July 28, 2020. 
+A galvanized country responded. Ten days after the 
+Selma march, President Johnson wrote to Congress propos­
+ing legislation to “help rid the Nation of racial discrimination 
+in every aspect of the electoral process and thereby insure 
+the right of all to vote.” H. R. Doc. No. 120, at 1. (To his 
+attorney general, Johnson was still more emphatic: “I want 
+you to write the goddamnedest toughest voting rights act 
+that you can devise.” H. Raines, My Soul Is Rested 337 
+(1983).) And in August 1965, after the bill's supporters 
+overcame a Senate flibuster, Johnson signed the Voting 
+Rights Act into law. Echoing Grant's description of the Fif­
+teenth Amendment, Johnson called the statute “one of the 
+most monumental laws in the entire history of American 
+freedom.” Public Papers of the Presidents, Lyndon B. John­
+son, Vol. 2, Aug. 6, 1965, p. 841 (1966) (Johnson Papers). 
+“After a century's failure to fulfll the promise” of the Fif­
+teenth Amendment, “passage of the VRA fnally led to signal 
+improvement.” Shelby County, 570 U. S., at 562 (Ginsburg, 
+J., dissenting). In the fve years after the statute's passage, 
+almost as many African Americans registered to vote in six 
+Southern States as in the entire century before 1965. See 
+
+Page Proof Pending Publication
+696 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+Davidson, The Voting Rights Act: A Brief History, in Contro­
+versies in Minority Voting 21 (B. Grofman & C. Davidson 
+eds. 1992). The crudest attempts to block voting access, like 
+literacy tests and poll taxes, disappeared. Legislatures 
+often replaced those vote denial schemes with new meas­
+ures—mostly to do with districting—designed to dilute 
+the impact of minority votes. But the Voting Rights Act, 
+operating for decades at full strength, stopped many of those 
+measures too. See, e.g., Chisom v. Roemer, 501 U. S. 380 
+(1991); Allen v. State Bd. of Elections, 393 U. S. 544 (1969). 
+As a famed dissent assessed the situation about a half-
+century after the statute's enactment: The Voting Rights Act 
+had become “one of the most consequential, effcacious, and 
+amply justifed exercises of federal legislative power in our 
+Nation's history.” Shelby County, 570 U. S., at 562 (Gins­
+burg, J., dissenting).1 
+B 
+Yet efforts to suppress the minority vote continue. No one 
+would know this from reading the majority opinion. It hails 
+the “good news” that legislative efforts had mostly shifted by 
+the 1980s from vote denial to vote dilution. Ante, at 660. 
+And then it moves on to other matters, as though the Voting 
+Rights Act no longer has a problem to address—as though once 
+literacy tests and poll taxes disappeared, so too did efforts to 
+curb minority voting. But as this Court recognized about a 
+decade ago, “racial discrimination and racially polarized vot­
+ing are not ancient history.” Bartlett v. Strickland, 556 
+U. S. 1, 25 (2009) (opinion of Kennedy, J.). Indeed, the prob­
+lem of voting discrimination has become worse since that 
+1 The majority brands this historical account part of an “extended effort 
+at misdirection.” Ante, at 674. I am tempted merely to reply: Enough 
+said about the majority's outlook on the statute before us. But I will add 
+what should be obvious—that no one can understand the Voting Rights 
+Act without recognizing what led Congress to enact it, and what Congress 
+wanted it to change. 
+
+Cite as: 594 U. S. 647 (2021) 
+697 
+Kagan, J., dissenting 
+time—in part because of what this Court did in Shelby 
+County. Weaken the Voting Rights Act, and predictable 
+consequences follow: yet a further generation of voter sup­
+pression laws. 
+Much of the Voting Rights Act's success lay in its capacity 
+to meet ever-new forms of discrimination. Experience 
+showed that “[w]henever one form of voting discrimination 
+was identifed and prohibited, others sprang up in its 
+place.” Shelby County, 570 U. S., at 560 (Ginsburg, J., dis­
+senting). Combating those efforts was like “battling the 
+Hydra”—or to use a less cultured reference, like playing 
+a game of whack-a-mole. Ibid. So Congress, in Section 5 
+of the Act, gave the Department of Justice authority to re­
+view all new rules devised by jurisdictions with a history 
+of voter suppression—and to block any that would have dis­
+criminatory effects. See 52 U. S. C. §§ 10304(a)–(b). In that 
+way, the Act would prevent the use of new, more nuanced 
+methods to restrict the voting opportunities of non-white 
+citizens. 
+And for decades, Section 5 operated as intended. Be­
+tween 1965 and 2006, the Department stopped almost 1200 
+voting laws in covered areas from taking effect. See Shelby 
+County, 570 U. S., at 571 (Ginsburg, J., dissenting). Some 
+of those laws used districting to dilute minority voting 
+strength—making sure that the votes of minority citizens 
+would carry less weight than the votes of whites in electing 
+candidates. Other laws, even if facially neutral, dispropor­
+tionately curbed the ability of non-white citizens to cast a 
+ballot at all. So, for example, a jurisdiction might require 
+forms of identifcation that those voters were less likely to 
+have; or it might limit voting places and times convenient 
+for those voters; or it might purge its voter rolls through 
+mechanisms especially likely to ensnare them. See id., at 
+574–575. In reviewing mountains of such evidence in 2006, 
+Congress saw a continuing need for Section 5. Although 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+698 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+“[d]iscrimination today is more subtle than the visible meth­
+ods used in 1965,” Congress found, it still produces “the same 
+[effects], namely a diminishing of the minority community's 
+ability to fully participate in the electoral process.” H. R. 
+Rep. No. 109–478, p. 6 (2006). Congress thus reauthorized 
+the preclearance scheme for 25 years. 
+But this Court took a different view. Finding that “[o]ur 
+country has changed,” the Court saw only limited instances 
+of voting discrimination—and so no further need for pre­
+clearance. Shelby County, 570 U. S., at 547–549, 557. Dis­
+placing Congress's contrary judgment, the Court struck 
+down the coverage formula essential to the statute's opera­
+tion. The legal analysis offered was perplexing: The Court 
+based its decision on a “principle of equal [state] sover­
+eignty” that a prior decision of ours had rejected—and that 
+has not made an appearance since. Id., at 544 (majority 
+opinion); see id., at 587–588 (Ginsburg, J., dissenting). 
+Worse yet was the Court's blithe confdence in assessing 
+what was needed and what was not. “[T]hings have 
+changed dramatically,” the Court reiterated, id., at 547: The 
+statute that was once a necessity had become an imposition. 
+But how did the majority know there was nothing more for 
+Section 5 to do—that the (undoubted) changes in the country 
+went so far as to make the provision unnecessary? It didn't, 
+as Justice Ginsburg explained in dissent. The majority's 
+faith that discrimination was almost gone derived, at least in 
+part, from the success of Section 5—from its record of block­
+ing discriminatory voting schemes. Discarding Section 5 
+because those schemes had diminished was “like throwing 
+away your umbrella in a rainstorm because you are not get­
+ting wet.” Id., at 590. 
+The rashness of the act soon became evident. Once Sec­
+tion 5's strictures came off, States and localities put in place 
+new restrictive voting laws, with foreseeably adverse effects 
+on minority voters. On the very day Shelby County issued, 
+Texas announced that it would implement a strict voter­
+
+Cite as: 594 U. S. 647 (2021) 
+699 
+Kagan, J., dissenting 
+identifcation requirement that had failed to clear Section 5. 
+See Elmendorf & Spencer, Administering Section 2 of the 
+Voting Rights Act After Shelby County, 115 Colum. L. Rev. 
+2143, 2145–2146 (2015). Other States—Alabama, Virginia, 
+Mississippi—fell like dominoes, adopting measures similarly 
+vulnerable to preclearance review. See ibid. The North 
+Carolina Legislature, starting work the day after Shelby 
+County, enacted a sweeping election bill eliminating same-
+day registration, forbidding out-of-precinct voting, and re­
+ducing early voting, including souls-to-the-polls Sundays. 
+(That law went too far even without Section 5: A court 
+struck it down because the State's legislators had a racially 
+discriminatory purpose. North Carolina State Conference 
+of NAACP v. McCrory, 831 F. 3d 204 (CA4 2016).) States 
+and localities redistricted—drawing new boundary lines or 
+replacing neighborhood-based seats with at-large seats—in 
+ways guaranteed to reduce minority representation. See 
+Elmendorf, 115 Colum. L. Rev., at 2146. And jurisdictions 
+closed polling places in mostly minority areas, enhancing an 
+already pronounced problem. See Brief for Leadership 
+Conference on Civil and Human Rights et al. as Amici Cu­
+riae 14–15 (listing closure schemes); Pettigrew, The Racial 
+Gap in Wait Times, 132 Pol. Sci. Q. 527, 527 (2017) (fnding 
+that lines in minority precincts are twice as long as in white 
+ones, and that a minority voter is six times more likely to 
+wait more than an hour).2 
+2 Although causation is hard to establish defnitively, those post-Shelby 
+County changes appear to have reduced minority participation in the next 
+election cycle. The most comprehensive study available found that in 
+areas freed from Section 5 review, white turnout remained the same, but 
+“minority participation dropped by 2.1 percentage points”—a stark rever­
+sal in direction from prior elections. Ang, Do 40-Year-Old Facts Still 
+Matter?, 11 Am. Econ. J.: Applied Economics, No. 3, pp. 1, 35 (2019). The 
+results, said the scholar who crunched the numbers, “provide early evi­
+dence that the Shelby ruling may jeopardize decades of voting rights prog­
+ress.” Id., at 36. The election laws passed in Shelby County's wake 
+“may have negated many of the gains made under preclearance.” Ibid. 
+Page Proof Pending Publication
+
+700 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+And that was just the frst wave of post-Shelby County 
+laws. In recent months, State after State has taken up or 
+enacted legislation erecting new barriers to voting. See 
+Brennan Center for Justice, Voting Laws Roundup: May 2021 
+(online source archived at www.supremecourt.gov) (compil­
+ing legislation). Those laws shorten the time polls are open, 
+both on Election Day and before. They impose new prereq­
+uisites to voting by mail, and shorten the windows to apply 
+for and return mail ballots. They make it harder to register 
+to vote, and easier to purge voters from the rolls. Two laws 
+even ban handing out food or water to voters standing in 
+line. Some of those restrictions may be lawful under the 
+Voting Rights Act. But chances are that some have the 
+kind of impact the Act was designed to prevent—that they 
+make the political process less open to minority voters than 
+to others. 
+So the Court decides this Voting Rights Act case at a peril­
+ous moment for the Nation's commitment to equal citizen­
+ship. 
+It decides this case in an era of voting-rights 
+retrenchment—when too many States and localities are re­
+stricting access to voting in ways that will predictably de­
+prive members of minority groups of equal access to the 
+ballot box. If “any racial discrimination in voting is too 
+much,” as the Shelby County Court recited, then the Act still 
+has much to do. 570 U. S., at 557. Or more precisely, the 
+fraction of the Act remaining—the Act as diminished by the 
+Court's hand. Congress never meant for Section 2 to bear 
+all of the weight of the Act's commitments. That provision 
+looks to courts, not to the Executive Branch, to restrain dis­
+criminatory voting practices. And litigation is an after-the­
+fact remedy, incapable of providing relief until an election— 
+usually, more than one election—has come and gone. See 
+id., at 572 (Ginsburg, J., dissenting). So Section 2 was sup­
+posed to be a back-up, for all its sweep and power. But 
+after Shelby County, the vitality of Section 2—a “permanent, 
+nationwide ban on racial discrimination in voting”—matters 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+701 
+Kagan, J., dissenting 
+more than ever. Id., at 557 (majority opinion). For after 
+Shelby County, Section 2 is what voters have left. 
+II 
+Section 2, as drafted, is well-equipped to meet the chal­
+lenge. Congress meant to eliminate all “discriminatory 
+election systems or practices which operate, designedly or 
+otherwise, to minimize or cancel out the voting strength and 
+political effectiveness of minority groups.” S. Rep. No. 97– 
+417, p. 28 (1982) (S. Rep.). And that broad intent is manifest 
+in the provision's broad text. As always, this Court's task 
+is to read that language as Congress wrote it—to give the 
+section all the scope and potency Congress drafted it to have. 
+So I start by showing how Section 2's text requires courts 
+to eradicate voting practices that make it harder for mem­
+bers of some races than of others to cast a vote, unless such 
+a practice is necessary to support a strong state interest. I 
+then show how far from that text the majority strays. Its 
+analysis permits exactly the kind of vote suppression that 
+Section 2, by its terms, rules out of bounds. 
+A 
+Section 2, as relevant here, has two interlocking parts. 
+Subsection (a) states the law's basic prohibition: 
+“No voting qualifcation or prerequisite to voting or 
+standard, practice, or procedure shall be imposed or ap­
+plied by any State or political subdivision in a manner 
+which results in a denial or abridgement of the right of 
+any citizen of the United States to vote on account of 
+race or color.” 52 U. S. C. § 10301(a). 
+Subsection (b) then tells courts how to apply that bar—or 
+otherwise said, when to fnd that an infringement of the vot­
+ing right has occurred: 
+“A violation of subsection (a) is established if, based on 
+the totality of circumstances, it is shown that the politi­
+
+702 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+cal processes leading to nomination or election in the 
+State or political subdivision are not equally open to par­
+ticipation by members of [a given race] in that [those] 
+members have less opportunity than other members of 
+the electorate to participate in the political process and 
+to elect representatives of their choice.” § 10301(b).3 
+Those provisions have a great many words, and I address 
+them further below. But their essential import is plain: 
+Courts are to strike down voting rules that contribute to a 
+racial disparity in the opportunity to vote, taking all the rele­
+vant circumstances into account. 
+The frst thing to note about Section 2 is how far its pro­
+hibitory language sweeps. The provision bars any “voting 
+qualifcation,” any “prerequisite to voting,” or any “standard, 
+practice, or procedure” that “results in a denial or abridge­
+ment of the right” to “vote on account of race.” The over­
+lapping list of covered state actions makes clear that Section 
+2 extends to every kind of voting or election rule. Congress 
+carved out nothing pertaining to “voter qualifcations or 
+the manner in which elections are conducted.” Holder v. 
+Hall, 512 U. S. 874, 922 (1994) (Thomas, J., concurring in 
+judgment). So, for example, the provision “covers all man­
+ner of registration requirements, the practices surrounding 
+registration,” the “locations of polling places, the times polls 
+are open, the use of paper ballots as opposed to voting 
+machines, and other similar aspects of the voting process 
+that might be manipulated to deny any citizen the right to 
+cast a ballot and have it properly counted.” Ibid. All those 
+rules and more come within the statute—so long as they 
+result in a race-based “denial or abridgement” of the vot­
+ing right. And the “denial or abridgement” phrase speaks 
+3 A fnal sentence, not at issue here, specifes that the voting right pro­
+vided does not entitle minority citizens to proportional representation in 
+electoral offces. See infra, at 708, n. 6. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 594 U. S. 647 (2021) 
+703 
+Kagan, J., dissenting 
+broadly too. “[A]bridgment necessarily means something 
+more subtle and less drastic than the complete denial of 
+the right to cast a ballot, denial being separately forbidden.” 
+Bossier, 528 U. S., at 359 (Souter, J., concurring in part and 
+dissenting in part). It means to “curtail,” rather than take 
+away, the voting right. American Heritage Dictionary 4 
+(1969). 
+The “results in” language, connecting the covered voting 
+rules to the prohibited voting abridgment, tells courts that 
+they are to focus on the law's effects. Rather than hinge 
+liability on state offcials' motives, Congress made it ride 
+on their actions' consequences. That decision was as con­
+sidered as considered comes. This Court, as the majority 
+notes, had construed the original Section 2 to apply to fa­
+cially neutral voting practices “only if [they were] motivated 
+by a discriminatory purpose.” Bolden, 446 U. S., at 62; see 
+ante, at 658. Congress enacted the current Section 2 to re­
+verse that outcome—to make clear that “results” alone could 
+lead to liability. An intent test, the Senate Report ex­
+plained, “asks the wrong question.” S. Rep., at 36. If mi­
+nority citizens “are denied a fair opportunity to participate,” 
+then “the system should be changed, regardless of” what 
+“motives were in an offcial's mind.” Ibid. Congress also 
+saw an intent test as imposing “an inordinately diffcult bur­
+den for plaintiffs.” Ibid. Even if state actors had purpose­
+fully discriminated, they would likely be “ab[le] to offer a 
+non-racial rationalization,” supported by “a false trail” of “of­
+fcial resolutions” and “other legislative history eschewing 
+any racial motive.” Id., at 37. So only a results-focused 
+statute could prevent States from fnding ways to abridge 
+minority citizens' voting rights. 
+But when to conclude—looking to effects, not purposes— 
+that a denial or abridgment has occurred? Again, answer­
+ing that question is subsection (b)'s function. See supra, at 
+701–702. It teaches that a violation is established when, 
+
+704 
+BRNOVICH v. DEMOCRATIC NATIONAL COMMITTEE 
+Kagan, J., dissenting 
+“based on the totality of circumstances,” a State's electoral 
+system is “not equally open” to members of a racial group. 
+And then the subsection tells us what that means. A sys­
+tem is not equally open if members of one race have “less 
+opportunity” than others to cast votes, to participate in poli­
+tics, or to elect representatives. The key demand, then, is 
+for equal political opportunity across races. 
+That equal “opportunity” is absent when a law or practice 
+makes it harder for members of one racial group, than for 
+others, to cast ballots. When Congress amended Section 2, 
+the word “opportunity” meant what it also does today: “a 
+favorable or advantageous combination of circumstances” for 
+some action. See American Heritage Dictionary, at 922. 
+In using that word, Congress made clear that the Voting 
+Rights Act does not demand equal outcomes. If members 
+of different races have the same opportunity to vote, but go 
+to the ballot box at different rates, then so be it—that is 
+their preference, and Section 2 has nothing to say. But if a 
+law produces different voting opportunities across races—if 
+it establishes rules and conditions of political participation 
+that are less favorable (or advantageous) for one racial group 
+than for others—then Section 2 kicks in. It applies, in 
+short, whenever the law makes it harder for citizens of one 
+race than of others to cast a vote.4 
+4 I agree with the majority that “very small differences” among racial 
+groups do not matter. Ante, at 671. Some racial disparities are too small 
+to support a fnding of unequal access because they are not statistically 
+signifcant—that is, because they might have arisen from chance alone. 
+See Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 39 (2011). The 
+statistical signifcance test is standard in all legal contexts addressing dis­
+parate impact. See Ricci v. DeStefano, 557 U. S. 557, 587 (2009). In addi­
+tion, there may be some threshold of what is sometimes called “practical 
+signifcance”—a level of inequality that, even if statistically meaningful, is 
+just too trivial for the legal system to care about. See Federal Judicial 
+Center, Reference Manual on Scientifc Evidence 252 (3d ed. 2011) (discuss­
+ing differences that are not “practically important”). 
+Page Proof Pending Publication
+
+Cite as: 594 U. S. 647 (2021) 
+705 
+Kagan, J., dissenting 
+And that is so even if (as is usually true) the law does not 
+single out any race, but instead is facially neutral. Suppose, 
+as Justice Scalia once did, that a county has a law limiting 
+“voter registration [to] only three hours one day a week.” 
+Chisom, 501 U. S., at 408 (dissenting opinion). And suppose 
+that policy makes it “more diffcult for blacks to register than 
+whites”—say, because the jobs African Americans dispropor­
+tionately hold make it harder to take time off in that window. 
+Ibid. Those citizens, Justice Scalia concluded, would then 
+“have less opportunity `to participate in the political process' 
+than whites, and § 2 would therefore be violated.” Ibid. 
+(emphasis deleted). In enacting Section 2, Congress docu­
+mented many similar (if less extreme) facially neutral 
+rules—“registration requirements,” “voting and registration 
+hours,” voter “purging” policies, and so forth—that create 
+disparities in voting opportunities. S. Rep., at 10, n. 22; 
+H. R. Rep. No. 97–227, pp. 11–17 (1981) (H. R. Rep.). Those 
+laws, Congress thought, would violate Section 2, though they 
+were not facially discriminatory, because they gave voters of 
+different races unequal access to the political process. 
+Congress also made plain, in calling for a totality-of­
+circumstances inquiry, that equal voting opportunity is a 
+function of both law and background conditions—in other 
+words, that a voting rule's validity depends on how the rule 
+operates in conjunction with facts on the ground. “[T]otal­
+ity review,” this Court has explained, stems from Congress's 
+recognition of “the demonstrated ingenuity of state and local 
+governments in hobbling minority voting power.” Johnson 
+v. De Grandy, 512 U. S. 997, 1018 (1994). Sometimes, of 
+course, state actions overtly target a single race: For exam­
+ple, Congress was acutely aware, in amending Section 2, of 
+the elimination of polling places in African American neigh­
+borhoods. See S. Rep., at 10, 11, and n. 22; H. R. Rep., at 
+17, 35. But sometimes government offcials enact facially 
+neutral laws that leverage—and become discriminatory by 
+Page Proof Pending Publication
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+PRELIMINARY PRINT 
+Volume 596 U. S. Part 1 
+Pages 411–419 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 23, 2022 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2021 
+411 
+Syllabus 
+MORGAN v. SUNDANCE, INC. 
+certiorari to the united states court of appeals for 
+the eighth circuit 
+No. 21–328. Argued March 21, 2022—Decided May 23, 2022 
+Petitioner Robyn Morgan worked as an hourly employee at a Taco Bell 
+franchise owned by respondent Sundance. When applying for the job, 
+Morgan signed an agreement to arbitrate any employment dispute. 
+Despite that agreement, Morgan fled a nationwide collective action as­
+serting that Sundance had violated federal law regarding overtime pay­
+ment. Sundance initially defended against the lawsuit as if no arbitra­
+tion agreement existed, fling a motion to dismiss (which the District 
+Court denied) and engaging in mediation (which was unsuccessful). 
+Then—nearly eight months after Morgan fled the lawsuit—Sundance 
+moved to stay the litigation and compel arbitration under the Federal 
+Arbitration Act (FAA). Morgan opposed, arguing that Sundance had 
+waived its right to arbitrate by litigating for so long. 
+The courts below applied Eighth Circuit precedent, under which a 
+party waives its right to arbitration if it knew of the right; “acted incon­
+sistently with that right”; and “prejudiced the other party by its incon­
+sistent actions.” Erdman Co. v. Phoenix Land & Acquisition, LLC, 
+650 F. 3d 1115, 1117. The prejudice requirement is not a feature of 
+federal waiver law generally. The Eighth Circuit adopted that require­
+ment because of the “federal policy favoring arbitration.” Id., at 1120. 
+Other courts have rejected such a requirement. This Court granted 
+certiorari to resolve the split over whether federal courts may adopt an 
+arbitration-specifc waiver rule demanding a showing of prejudice. 
+Held: The Eighth Circuit erred in conditioning a waiver of the right to 
+arbitrate on a showing of prejudice. Federal courts have generally re­
+solved cases like this one as a matter of federal law, using the terminol­
+ogy of waiver. The parties dispute whether that framework is correct. 
+Assuming without deciding that it is, federal courts may not create 
+arbitration-specifc variants of federal procedural rules, like those con­
+cerning waiver, based on the FAA's “policy favoring arbitration.” 
+Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 
+1, 24. That policy “is merely an acknowledgment of the FAA's commit­
+ment to overrule the judiciary's longstanding refusal to enforce agree­
+ments to arbitrate and to place such agreements upon the same footing 
+as other contracts.” Granite Rock Co. v. Teamsters, 561 U. S. 287, 302 
+
+Page Proof Pending Publication
+412 
+MORGAN v. SUNDANCE, INC. 
+Syllabus 
+(internal quotation marks omitted). Accordingly, a court must hold a 
+party to its arbitration contract just as the court would to any other 
+kind. But a court may not devise novel rules to favor arbitration over 
+litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 218– 
+221. The federal policy is about treating arbitration contracts like all 
+others, not about fostering arbitration. 
+The text of the FAA makes clear that courts are not to create 
+arbitration-specifc procedural rules like the one here. Section 6 of the 
+FAA provides that any application under the statute—including an ap­
+plication to stay litigation or compel arbitration—“shall be made and 
+heard in the manner provided by law for the making and hearing of 
+motions” (unless the statute says otherwise). A directive to treat arbi­
+tration applications “in the manner provided by law” for all other mo­
+tions is simply a command to apply the usual federal procedural rules, 
+including any rules relating to a motion's timeliness. Because the usual 
+federal rule of waiver does not include a prejudice requirement, Section 
+6 instructs that prejudice is not a condition of fnding that a party 
+waived its right to stay litigation or compel arbitration under the FAA. 
+Stripped of its prejudice requirement, the Eighth Circuit's current 
+waiver inquiry would focus on Sundance's conduct. Did Sundance 
+knowingly relinquish the right to arbitrate by acting inconsistently with 
+that right? On remand, the Court of Appeals may resolve that ques­
+tion, or determine that a different procedural framework (such as for­
+feiture) is appropriate. The Court's sole holding today is that it may 
+not make up a new procedural rule based on the FAA's “policy favoring 
+arbitration.” Pp. 416–419. 
+992 F. 3d 711, vacated and remanded. 
+Kagan, J., delivered the opinion for a unanimous Court. 
+Karla A. Gilbride argued the cause for petitioner. With 
+her on the briefs were Leah M. Nicholls, Charles R. Ash IV, 
+and Jason J. Thompson. 
+Paul D. Clement argued the cause for respondent. With 
+him on the brief were Erin E. Murphy, Michael D. Lieber­
+man, Joel W. Rice, and Scott C. Fanning.* 
+*Briefs of amici curiae urging reversal were fled for the American 
+Association for Justice by Gerson H. Smoger and Jeffrey R. White; for 
+Law Professors by Jennifer D. Bennett, Matthew W. H. Wessler, and Rich­
+ard H. Frankel; for the National Academy of Arbitrators by Vincent Levy 
+
+Cite as: 596 U. S. 411 (2022) 
+413 
+Opinion of the Court 
+Justice Kagan delivered the opinion of the Court. 
+When a party who has agreed to arbitrate a dispute in­
+stead brings a lawsuit, the Federal Arbitration Act (FAA) 
+entitles the defendant to fle an application to stay the litiga­
+tion. See 9 U. S. C. § 3. But defendants do not always seek 
+that relief right away. Sometimes, they engage in months, 
+or even years, of litigation—fling motions to dismiss, an­
+swering complaints, and discussing settlement—before de­
+ciding they would fare better in arbitration. When that 
+happens, the court faces a question: Has the defendant's re­
+quest to switch to arbitration come too late? 
+Most Courts of Appeals have answered that question by 
+applying a rule of waiver specifc to the arbitration context. 
+Usually, a federal court deciding whether a litigant has 
+waived a right does not ask if its actions caused harm. But 
+when the right concerns arbitration, courts have held, a fnd-
+and Gregory Dubinsky; and for Public Citizen by Scott L. Nelson and 
+Allison M. Zieve. 
+Briefs of amici curiae urging affrmance were fled for the Chamber of 
+Commerce of the United States of America by Zachary D. Tripp, Daryl 
+Joseffer, and Paul Lettow; for the Restaurant Law Center by Todd Lun­
+dell and Karin Dougan Vogel; and for the Washington Legal Foundation 
+by John M. Masslon II and Cory L. Andrews. 
+A brief of amici curiae was fled for the State of Minnesota et al. by 
+Keith Ellison, Attorney General of Minnesota, Liz Kramer, Solicitor Gen­
+eral, Michael P. Goodwin, Assistant Attorney General, and Henry Allen 
+Blair, Special Assistant Attorney General, by Brian E. Frosh, Attorney 
+General of Maryland, Steven M. Sullivan, Solicitor General, and Adam D. 
+Snyder, Assistant Attorney General, by Andrew J. Bruck, Acting Attor­
+ney General of New Jersey, and by the Attorneys General for their respec­
+tive jurisdictions as follows: Treg R. Taylor of Alaska, Phil Weiser of Colo­
+rado, Kathleen Jennings of Delaware, Karl A. Racine of the District of 
+Columbia, Lawrence G. Wasden of Idaho, Kwame Raoul of Illinois, Tom 
+Miller of Iowa, Aaron M. Frey of Maine, Maura Healey of Massachusetts, 
+Letitia James of New York, Josh Stein of North Carolina, Ellen F. Rosen­
+blum of Oregon, Peter F. Neronha of Rhode Island, Thomas J. Donovan, 
+Jr., of Vermont, Mark R. Herring of Virginia, and Robert W. Ferguson 
+of Washington. 
+Page Proof Pending Publication
+
+414 
+MORGAN v. SUNDANCE, INC. 
+Opinion of the Court 
+ing of harm is essential: A party can waive its arbitration 
+right by litigating only when its conduct has prejudiced the 
+other side. That special rule, the courts say, derives from 
+the FAA's “policy favoring arbitration.” 
+We granted certiorari to decide whether the FAA author­
+izes federal courts to create such an arbitration-specifc pro­
+cedural rule. We hold it does not. 
+I 
+Petitioner Robyn Morgan worked as an hourly employee 
+at a Taco Bell franchise owned by respondent Sundance. 
+When applying for the job, she signed an agreement to “use 
+confdential binding arbitration, instead of going to court,” 
+to resolve any employment dispute. App. 77. 
+Despite that agreement, Morgan brought a nationwide col­
+lective action against Sundance in federal court for violations 
+of the Fair Labor Standards Act. Under that statute, em­
+ployers must pay overtime to covered employees who work 
+more than 40 hours in a week. See 29 U. S. C. § 207(a). 
+Morgan alleged that Sundance routinely fouted the Act— 
+most notably, by recording hours worked in one week as in­
+stead worked in another to prevent any week's total from 
+exceeding 40. See App. 12. 
+Sundance initially defended itself against Morgan's suit as 
+if no arbitration agreement existed. Sundance frst moved 
+to dismiss the suit as duplicative of a collective action pre­
+viously brought by other Taco Bell employees. In that mo­
+tion, Sundance suggested that Morgan either “join” the ear­
+lier suit or “refle her claim on an individual basis.” Id., at 
+39. But Morgan declined the invitation to litigate differ­
+ently, and the District Court denied Sundance's motion. 
+Sundance then answered Morgan's complaint, asserting 14 
+affrmative defenses—but none mentioning the arbitration 
+agreement. Soon afterward, Sundance met in a joint media­
+tion with the named plaintiffs in both collective actions. 
+The other suit settled, but Morgan's did not. She and 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 411 (2022) 
+415 
+Opinion of the Court 
+Sundance began to talk about scheduling the rest of the 
+litigation. 
+And then—nearly eight months after the suit's fling— 
+Sundance changed course. It moved to stay the litigation 
+and compel arbitration under Sections 3 and 4 of the FAA. 
+See § 3 (providing for a stay of judicial proceedings on “is­
+sue[s] referable to arbitration”); § 4 (providing for an order 
+“directing the parties to proceed to arbitration”). Morgan 
+opposed the motion, arguing that Sundance had waived its 
+right to arbitrate by litigating for so long. Sundance re­
+sponded that it had asserted its right as soon as this Court's 
+decision in Lamps Plus, Inc. v. Varela, 587 U. S. ––– (2019), 
+clarifed that the arbitration would proceed on a bilateral 
+(not collective) basis. 
+The courts below applied Eighth Circuit precedent to de­
+cide the waiver issue. See 992 F. 3d 711, 713–715 (2021); 
+No. 4:18–cv–316 (ND Iowa, June 28, 2019), App. to Pet. for 
+Cert. 21–33. Under that Circuit's test, a party waives its 
+contractual right to arbitration if it knew of the right; “acted 
+inconsistently with that right”; and—critical here—“preju­
+diced the other party by its inconsistent actions.” Erdman 
+Co. v. Phoenix Land & Acquisition, LLC, 650 F. 3d 1115, 
+1117 (CA8 2011). The prejudice requirement, as explained 
+later, is not a feature of federal waiver law generally. See 
+infra, at 5. The Eighth Circuit adopted the requirement in 
+the arbitration context because of the “federal policy favor­
+ing arbitration.” Erdman, 650 F. 3d, at 1120; see id., at 
+1117. 
+Although the District Court found the prejudice require­
+ment satisfed, the Court of Appeals disagreed and sent Mor­
+gan's case to arbitration. The panel majority reasoned that 
+the parties had not yet begun formal discovery or contested 
+any matters “going to the merits.” 992 F. 3d, at 715. Judge 
+Colloton dissented. He argued that Sundance had “led Mor­
+gan to waste time and money” opposing the motion to dis­
+miss and “engaging in a fruitless mediation.” Id., at 717. 
+Page Proof Pending Publication
+
+416 
+MORGAN v. SUNDANCE, INC. 
+Opinion of the Court 
+More fundamentally, he raised doubts about the Eighth Cir-
+cuit's prejudice requirement. Outside the arbitration con­
+text, Judge Colloton observed, prejudice is not needed for 
+waiver. See id., at 716. In line with that general principle, 
+he continued, “some circuits allow a fnding of waiver of arbi­
+tration without a showing of prejudice.” Id., at 716–717. 
+We granted certiorari, 595 U. S. ––– (2021), to resolve that 
+circuit split. Nine circuits, including the Eighth, have in­
+voked “the strong federal policy favoring arbitration” in sup­
+port of an arbitration-specifc waiver rule demanding a show­
+ing of prejudice.1 
+Two circuits have rejected that rule.2 
+We do too. 
+II 
+We decide today a single issue, responsive to the predomi­
+nant analysis in the Courts of Appeals, rather than to all the 
+arguments the parties have raised. In their briefng, the 
+parties have disagreed about the role state law might play 
+in resolving when a party's litigation conduct results in the 
+loss of a contractual right to arbitrate. The parties have 
+also quarreled about whether to understand that inquiry as 
+involving rules of waiver, forfeiture, estoppel, laches, or pro­
+cedural timeliness. We do not address those issues. The 
+Courts of Appeals, including the Eighth Circuit, have gener­
+ally resolved cases like this one as a matter of federal law, 
+1 Joca-Roca Real Estate, LLC v. Brennan, 772 F. 3d 945, 948 (CA1 2014); 
+see O. J. Distributing, Inc. v. Hornell Brewing Co., 340 F. 3d 345, 355–356 
+(CA6 2003); PaineWebber Inc. v. Faragalli, 61 F. 3d 1063, 1068–1069 (CA3 
+1995); S & H Contractors, Inc. v. A. J. Taft Coal Co., 906 F. 2d 1507, 1514 
+(CA11 1990); Miller Brewing Co. v. Fort Worth Distributing Co., 781 F. 2d 
+494, 497 (CA5 1986); ATSA of Cal., Inc. v. Continental Ins. Co., 702 F. 2d 
+172, 175 (CA9 1983); Carolina Throwing Co. v. S & E Novelty Corp., 442 
+F. 2d 329, 331 (CA4 1971) (per curiam); Carcich v. Rederi A/B Nordie, 389 
+F. 2d 692, 696 (CA2 1968). 
+2 See St. Mary's Medical Center of Evansville, Inc. v. Disco Aluminum 
+Prods. Co., 969 F. 2d 585, 590 (CA7 1992); National Foundation for Cancer 
+Research v. A. G. Edwards & Sons, Inc., 821 F. 2d 772, 774, 777 (CADC 
+1987). 
+Page Proof Pending Publication
+
+Cite as: 596 U. S. 411 (2022) 
+417 
+Opinion of the Court 
+using the terminology of waiver. For today, we assume 
+without deciding they are right to do so. We consider only 
+the next step in their reasoning: that they may create 
+arbitration-specifc variants of federal procedural rules, like 
+those concerning waiver, based on the FAA's “policy favoring 
+arbitration.” Moses H. Cone Memorial Hospital v. Mer­
+cury Constr. Corp., 460 U. S. 1, 24 (1983). They cannot. 
+For that reason, the Eighth Circuit was wrong to condition 
+a waiver of the right to arbitrate on a showing of prejudice. 
+Outside the arbitration context, a federal court assessing 
+waiver does not generally ask about prejudice. Waiver, we 
+have said, “is the intentional relinquishment or abandonment 
+of a known right.” United States v. Olano, 507 U. S. 725, 
+733 (1993) (internal quotation marks omitted). To decide 
+whether a waiver has occurred, the court focuses on the ac­
+tions of the person who held the right; the court seldom con­
+siders the effects of those actions on the opposing party. 
+That analysis applies to the waiver of a contractual right, as 
+of any other. As Judge Colloton noted in dissent below, a 
+contractual waiver “normally is effective” without proof of 
+“detrimental reliance.” 992 F. 3d, at 716; see Cabinetree of 
+Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F. 3d 388, 
+390 (CA7 1995) (Posner, C. J., for the Court). So in demand­
+ing that kind of proof before fnding the waiver of an arbitra­
+tion right, the Eighth Circuit applies a rule found nowhere 
+else—consider it a bespoke rule of waiver for arbitration. 
+The Eighth Circuit's arbitration-specifc rule derives from 
+a decades-old Second Circuit decision, which in turn 
+grounded the rule in the FAA's policy. See Carcich v. Re­
+deri A/B Nordie, 389 F. 2d 692, 696 (CA2 1968); Erdman, 
+650 F. 3d, at 1120, n. 4 (“trac[ing] the origins of [the Eighth 
+Circuit's] prejudice requirement to Carcich”). “[T]here is,” 
+the Second Circuit declared, “an overriding federal policy fa­
+voring arbitration.” Carcich, 389 F. 2d, at 696. For that 
+reason, the court held, waiver of the right to arbitrate “is 
+not to be lightly inferred”: “[M]ere delay” in seeking a stay 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+418 
+MORGAN v. SUNDANCE, INC. 
+Opinion of the Court 
+of litigation, “without some resultant prejudice” to the op­
+posing party, “cannot carry the day.” 
+Ibid. 
+Over the 
+years, both that rule and its reasoning spread. Circuit after 
+circuit (with just a couple of holdouts) justifed adopting a 
+prejudice requirement based on the “liberal national policy 
+favoring arbitration.” Carolina Throwing Co. v. S & E 
+Novelty Corp., 442 F. 2d 329, 331 (CA4 1971) (per curiam); 
+see, e. g., PaineWebber Inc. v. Faragalli, 61 F. 3d 1063, 1068– 
+1069 (CA3 1995); Shinto Shipping Co. v. Fibrex & Shipping 
+Co., Inc., 572 F. 2d 1328, 1330 (CA9 1978). 
+But the FAA's “policy favoring arbitration” does not au­
+thorize federal courts to invent special, arbitration-
+preferring procedural rules. Moses H. Cone, 460 U. S., at 
+24. Our frequent use of that phrase connotes something dif­
+ferent. “Th[e] policy,” we have explained, “is merely an 
+acknowledgment of the FAA's commitment to overrule the 
+judiciary's longstanding refusal to enforce agreements to 
+arbitrate and to place such agreements upon the same foot­
+ing as other contracts.” Granite Rock Co. v. Teamsters, 561 
+U. S. 287, 302 (2010) (internal quotation marks omitted). Or 
+in another formulation: The policy is to make “arbitration 
+agreements as enforceable as other contracts, but not more 
+so.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 
+U. S. 395, 404, n. 12 (1967). Accordingly, a court must hold 
+a party to its arbitration contract just as the court would to 
+any other kind. But a court may not devise novel rules to 
+favor arbitration over litigation. See Dean Witter Reynolds 
+Inc. v. Byrd, 470 U. S. 213, 218–221 (1985). If an ordinary 
+procedural rule—whether of waiver or forfeiture or what­
+have-you—would counsel against enforcement of an arbitra­
+tion contract, then so be it. The federal policy is about 
+treating arbitration contracts like all others, not about fos­
+tering arbitration. See ibid.; National Foundation for 
+Cancer Research v. A. G. Edwards & Sons, Inc., 821 F. 2d 
+772, 774 (CADC 1987) (“The Supreme Court has made clear” 
+that the FAA's policy “is based upon the enforcement of con­
+
+Cite as: 596 U. S. 411 (2022) 
+419 
+Opinion of the Court 
+tract, rather than a preference for arbitration as an alterna­
+tive dispute resolution mechanism”). 
+And indeed, the text of the FAA makes clear that courts 
+are not to create arbitration-specifc procedural rules like the 
+one we address here. Section 6 of the FAA provides that 
+any application under the statute—including an application 
+to stay litigation or compel arbitration—“shall be made and 
+heard in the manner provided by law for the making and 
+hearing of motions” (unless the statute says otherwise). A 
+directive to a federal court to treat arbitration applications 
+“in the manner provided by law” for all other motions is sim­
+ply a command to apply the usual federal procedural rules, 
+including any rules relating to a motion's timeliness. Or put 
+conversely, it is a bar on using custom-made rules, to tilt the 
+playing feld in favor of (or against) arbitration. As ex­
+plained above, the usual federal rule of waiver does not in­
+clude a prejudice requirement. So Section 6 instructs that 
+prejudice is not a condition of fnding that a party, by litigat­
+ing too long, waived its right to stay litigation or compel 
+arbitration under the FAA. 
+Stripped of its prejudice requirement, the Eighth Circuit's 
+current waiver inquiry would focus on Sundance's conduct. 
+Did Sundance, as the rest of the Eighth Circuit's test asks, 
+knowingly relinquish the right to arbitrate by acting incon­
+sistently with that right? See supra, at 415. On remand, the 
+Court of Appeals may resolve that question, or (as indicated 
+above) determine that a different procedural framework 
+(such as forfeiture) is appropriate. See supra, at 416. Our 
+sole holding today is that it may not make up a new proce­
+dural rule based on the FAA's “policy favoring arbitration.” 
+*
+*
+* 
+For the reasons stated, we vacate the judgment of the 
+Court of Appeals and remand the case for further proceed­
+ings consistent with this opinion. 
+It is so ordered. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Reporter’s Note 
+The attached opinion has been revised to refect the usual publication 
+and citation style of the United States Reports. The revised pagination 
+makes available the offcial United States Reports citation in advance of 
+publication. The syllabus has been prepared by the Reporter of Decisions 
+for the convenience of the reader and constitutes no part of the opinion of 
+the Court. A list of counsel who argued or fled briefs in this case, and 
+who were members of the bar of this Court at the time this case was 
+argued, has been inserted following the syllabus. Other revisions may 
+include adjustments to formatting, captions, citation form, and any errant 
+punctuation. The following additional edits were made: 
+None 
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+The Effect of Restorative Justice for Drug Users on The Overcapacity of Correctional Facility in Solo City
+
+The problem of drug abuse has become a major challenge in many countries, causing the number of prisoners addicted to narcotics to increase and causing overcrowding in prisons. This article discusses the influence of restorative justice as an innovative solution in dealing with drug users and overcrowding in correctional facility. Restorative justice replaces the traditional punishment-focused approach with one that is oriented towards rehabilitation, reconciliation, and the active participation of drug users in the rehabilitation process. In addition, restorative justice can help reduce overcrowding in prisons by reassessing the detention approach to drug users. Alternatives such as community-based rehabilitation programs and electronic monitoring could be implemented to alleviate pressure on the overcrowded prison system. By combining restorative justice and prison reform, governments can create more sustainable and humane solutions to the complex challenges of drug addiction.
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
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+ 
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+13 
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+THE EFFECT OF RESTORATIVE JUSTICE FOR DRUG USERS 
+ON THE OVERCAPACITY OF CORRECTIONAL FACILITY IN SOLO CITY 
+ 
+1Diaz Ratna Iswara, 2Taufiq Nugroho 
+Faculty of Law, Muhammadiyah Surakarta University, Surakarta, Indonesia. 
+Correspondent email: C100200034@student.ums.ac.id    
+ 
+ 
+| Article History 
+: 
+ 
+ 
+| Submission  
+| Last Revissions  
+| Accepted  
+| Copyedits Approved  
+: 
+: 
+: 
+: 
+23 March 2024 
+18  May 2024 
+22 May 2024 
+28 May 2024 
+ 
+Abstract 
+The problem of drug abuse has become a major challenge in many countries, causing the 
+number of prisoners addicted to narcotics to increase and causing overcrowding in prisons. 
+This article discusses the influence of restorative justice as an innovative solution in dealing 
+with drug users and overcrowding in correctional facility. Restorative justice replaces the 
+traditional punishment-focused approach with one that is oriented towards rehabilitation, 
+reconciliation, and the active participation of drug users in the rehabilitation process. In 
+addition, restorative justice can help reduce overcrowding in prisons by reassessing the 
+detention approach to drug users. Alternatives such as community-based rehabilitation 
+programs and electronic monitoring could be implemented to alleviate pressure on the 
+overcrowded prison system. By combining restorative justice and prison reform, 
+governments can create more sustainable and humane solutions to the complex challenges 
+of drug addiction. 
+Keywords: Restorative; Justice; Drugs. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+14 
+ 
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+ 
+A. INTRODUCTION 
+The various factors taken into consideration in the current reforms have posed 
+a significant threat to the expansion of trade, but on the contrary, widespread 
+globalization has created a number of problems in almost every aspect of people's 
+lives. It has a wide-ranging impact on many aspects of society, including religion, 
+politics, economics, education, knowledge-based science, and technology, making it a 
+lucrative business sector as a result of these changes.1 The ability of drug crimes to 
+also rapidly demonstrate problems in these various aspects. Not only does it 
+discourage illegal use, but the pharmaceutical industry as a whole is also implicated in 
+health issues; drug crime also impacts various aspects of society, including the 
+international economy, society at large, health promotion efforts, and even the morals 
+and ethics of a country. Historical evidence suggests that drugs may have an impact on 
+interstate relations. As such, all forms of crime of this kind require systematic 
+attention.2 
+The development of correctional drivers and students through a correctional 
+system based on education, recovery and integrity is a criminal subsystem, known as 
+the Correctional Institution (Lapas). In Law No. 22 of 2022 on Corrections adheres to 
+the paradigm of rehabilitation and social reintegration, which means that the purpose 
+of the correctional system is to improve the behavior of prisoners and children, so that 
+they can become good and productive members of society. The handling carried out is 
+not too broad because the problem comes from prisons which are complex areas. 
+"Over capacity" is one of the fundamental problems.3 
+According to the Directorate General of Human Rights of the Ministry of Law 
+and Human Rights (Kemenkumham), 60% of the surplus capacity of prisons and 
+correctional institutions (Rutan) is filled by drug-related cases. As of April 31, 2023, 
+the number of inmates recorded in detention was approximately 264,000, exceeding 
+the expected 146,000. This means an increase of 86%, of which 60% of the cases are 
+drug users. These gains have many adverse effects on the physical and psychological 
+well-being of prisoners, as well as often leading to conflicts between prisoners and 
+                                                 
+1 Ronny Nicolas Sidabutar and Alvi Syahrin, “Penyelesaian Perkara Narkotika Bagi Penyalahguna Sebagai 
+Korban Dengan Pendekatan Keadilan Restoratif Dalam Kajian Norma Keadilan Berdasarkan Pancasila,” 
+Jurnal Hukum Kaidah: Media Komunikasi Dan Informasi Dan Masyarakat 23, no. 1 (2022): 10–25. 
+2 Alif Wisuda Arifin, Pujiyono, and Nur Rochaeti, “Implementasi Konsep Restorative Justice Sebagai Upaya 
+Menanggulangi Overcapacity Narapidana Di Lembaga Pemasyarakatan Kelas I Semarang,” Diponegoro Law 
+Journal 11, no. 1 (2021): 361–416. 
+3 Wulan Dwi Yulianti, “Upaya Menanggulangi Over Kapasitas Pada Lembaga Pemasyarakatan Di Indonesia,” 
+Al-Qisthu: Jurnal Kajian Ilmu-Ilmu Hukum 18, no. 2 (2020): 61–66, https://doi.org/10.32694/010980. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
+ 
+ 
+ 
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+ 
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+15 
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+inadequate and dysfunctional guidance from correctional officers. Other adverse 
+consequences that may arise are spikes in the use of water, electricity, and food.4 
+Users or users of Narcotics apart from being perpetrators of criminal acts, are 
+also victims of the crime itself, which in the view of victimology is often referred to as 
+self-victimization or victimless crime. Theoretically, sentencing has several objectives 
+that can be classified based on theories about sentencing. The theory of treatment is 
+an integrated process of treatment activities to free abusers from dependence. This is 
+in accordance with the punishment intended by the stream of treatment theory, 
+namely, to provide treatment and rehabilitation to the perpetrators of criminal acts as 
+a substitute for punishment. The perpetrator of the crime is a sick person who needs 
+treatment and improvement. 
+In dealing with narcotics abusers and addicts, law enforcement officials must 
+be oriented towards action sanctions in the form of rehabilitation in order to save the 
+future of narcotics users. To be able to function the role of judges in deciding or 
+determining rehabilitation, it needs support from other law enforcement officials. Of 
+course, this must be based on mutual understanding and agreement that narcotics 
+abuse is a serious problem for the nation and an enemy of the nation. The government 
+and law enforcement officials must unite and equate the vision and mission to tackle 
+narcotics abusers and addicts in order to realize the noble ideals of the nation to create 
+a healthy nation's generation. 
+Understanding and agreement from the government and law enforcement 
+officials in tackling narcotics crimes is realized through joint regulations of the Chief 
+Justice of the Republic of Indonesia, Minister of Law and Human Rights of the 
+Republic of Indonesia, Minister of Health of the Republic of Indonesia, Minister of 
+Social Affairs of the Republic of Indonesia, Attorney General of the Republic of 
+Indonesia, Chief of Police Republic of Indonesia, Head of the National Narcotics 
+Agency of the Republic of Indonesia regarding the Handling of Narcotics Addicts and 
+Victims of Narcotics Abuse in Rehabilitation Institutions, hereinafter referred to as 
+joint regulations. Thus, narcotics abusers and addicts no longer lead to criminal 
+sanctions in prison but lead to rehabilitation. 
+One strategy to address the problem of overcrowding in correctional 
+institutions is the implementation of restorative justice. This approach entails a 
+                                                 
+4 Usman Usman, Bahder Johan Nasution, and Elizabeth Seregar, “Over Kapasitas Lembaga Pemasyarakatan 
+Dalam 
+Perespektif 
+Kebijakan 
+Hukum 
+Pidana,” 
+Wajah 
+Hukum 
+4, 
+no. 
+2 
+(2020): 
+436, 
+https://doi.org/10.33087/wjh.v4i2.256. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+16 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+change in the way sentencing is carried out within the criminal justice system, with a 
+focus on ensuring justice for both victims and offenders. Restorative justice aims to 
+reduce the number of offenders sentenced to prison by exploring alternative solutions 
+outside the court system.5 
+While the concept has clearly been developed and used in the resolution of debt 
+cases in a number of common law countries, Restorative Justice is a new model in the 
+application of criminal law. As a form of restorative justice, its application requires the 
+concept of legitimacy in the application of the law; as a result of this falsification, this 
+concept must be included in the relevant decision-making laws. Pedagogy and 
+Dynamics On the one hand, complex societies are undergoing penal regulation as 
+quasi-partial legislation, which has a public face of the private face of relative law, 
+which is also known and practiced as penal mediation as a means of resolving cases 
+before trial. 
+In maintaining the balance between the development of prisoners and 
+correctional students with the complexity of problems that arise in prisons, a more 
+holistic and structured approach is needed. One of the proposed solutions is the 
+application of the restorative justice approach. This approach places victims, 
+perpetrators, and society as a whole as the main subjects in the conflict resolution 
+process. Restorative justice emphasizes the restoration of disrupted relationships due 
+to criminal acts and provides opportunities for perpetrators to take responsibility for 
+their actions. As such, the process is expected to improve social relations and reduce 
+the likelihood of re-offending in the future. 
+The implementation of restorative justice also requires strong support from 
+various related parties, including law enforcement agencies, government agencies, and 
+the community at large. The importance of restorative justice awareness needs to be 
+instilled in the legal and social culture of society. Intensive education and socialization 
+is needed so that people understand the principles of restorative justice and the 
+benefits that can be obtained through its application. In addition, the active role of 
+educational institutions, community organizations, and mass media is also needed to 
+disseminate information and provide a correct understanding of restorative justice. 
+A correctional system that adopts a restorative justice approach is expected to 
+make a significant contribution to addressing the problem of overcapacity in prisons. 
+                                                 
+5 Miftahudin Marliani, Siagian, “Dampak Over Crowded Terhadap Gangguan Keamanan Dan Ketertiban Di 
+Lembaga Permasyarakatan (Study Case Lapas Narkotika Kelas II A Jakarta),” Jurnal Pendidikan Dan 
+Konseling 4, no. 6 (2022): 79, https://core.ac.uk/download/pdf/322599509.pdf. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+17 
+ 
+ 
+By minimizing the number of inmates entering the prison system through social 
+reconciliation and reconsolidation efforts, pressure on correctional facilities can be 
+gradually reduced. In addition, by focusing on rehabilitation and social reintegration, 
+the system is expected to reduce the overall crime rate in society. This will create a 
+safer and more stable environment for all parties involved. 
+Major challenges are still faced in the implementation of restorative justice in 
+prisons. It requires a strong commitment from various parties, including the 
+government, law enforcement agencies and the community, to ensure that the 
+principles of restorative justice can be applied consistently and effectively. In addition, 
+there is a need to develop adequate infrastructure and human resources to implement 
+this approach thoroughly. Only with hard work and strong collaboration can 
+restorative justice become a sustainable solution to the problem of overcapacity in 
+prisons and improve the correctional system as a whole.6 
+ 
+B. RESEARCH METHODS 
+The purpose of research methods is to study one or two legal phenomena by 
+analyzing the consequences of these phenomena through the lens of certain methods, 
+systems, and assumptions. The following methods are used in the research 
+methodology in this study. This research is based on normative jurisprudence 
+methodology research because the main focus of the study is on legal principles and 
+theories, as well as various laws and regulations relevant to the subject matter. In this 
+research paper, the research method is descriptive because it is used to provide an 
+objective description of a phenomenon. With the aim of resolving the current dispute, 
+namely about the legal protection given to music creators against unauthorized use of 
+music for commercial purposes in the form of mp3 files, in accordance with decree 
+number 28 of 2014. 
+ 
+ 
+ 
+ 
+ 
+                                                 
+6 F M Pratama and S N Maulidna, “Reformasi Sistem Penjara Untuk Mengatasi Overkapasitas Rumah 
+Tahanan: Tinjauan Dari Sudut Pandang Hukum Nasional:(Studi Kasus Rumah Tahanan Kebon …,” Doktrin: 
+Jurnal 
+Dunia 
+Ilmu 
+… 
+1, 
+no. 
+4 
+(2023), 
+https://journal.widyakarya.ac.id/index.php/Doktrin-
+widyakarya/article/view/1467%0Ahttps://journal.widyakarya.ac.id/index.php/Doktrin-
+widyakarya/article/download/1467/1502. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+18 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+C. RESULTS AND DISCUSSIONS 
+1. Restorative Justice 
+A new concept of lawmaking that emerged from the community as a model 
+for criminal lawmaking today is restorative justice. This concept is elaborated as a 
+response to the existence of criminal law and punishment system that is considered 
+not fulfilling the needs of society. Few cases in Indonesian national law introduce 
+the concept of restorative justice. In accordance with the guidelines of the Attorney 
+General's Guidelines Number 18 of 2021 concerning Completion of Case Handling 
+of Criminal Acts of Narcotics Abuse through Rehabilitation with a Restorative 
+Justice Approach. The AGO said that after the guidelines were implemented, many 
+victims of drug abuse or drug users were carried out restorative justice, but 
+prosecutors were asked not to play around in its application.7 
+After the implementation of the guidelines, there was a positive trend in the 
+application of restorative justice in drug cases. Almost hundreds of victims of drug 
+abuse have received their rights to be treated mentally and physically. The AGO 
+emphasized that the application of restorative justice for drug users based on the 
+Attorney General's Guidelines Number 18 of 2021 is carried out very strictly by 
+looking at the amount of evidence, the qualifications of the suspect, the 
+qualifications of the criminal offense and the article alleged, the element of guilt 
+(mens rea) in the suspect, and a careful examination of the suspect through the 
+results of an integrated assessment.8 
+In addition, there is even a special obligation by the Public Prosecutor to 
+provide instructions to the Investigator, namely ensuring that the suspect is the last 
+user (end user), as well as knowing the suspect's profile, including his lifestyle, 
+financial transactions, including his colleagues and environment (know your 
+suspect). Seeing offenders as victims of drug abuse who need serious treatment and 
+to support the implementation of the Attorney General's Guidelines Number 18 of 
+2021, the Attorney General encourages local governments and law enforcement to 
+collaborate in establishing rehabilitation centers in each province and district / city. 
+This is a very serious effort for humanist law enforcement. 
+                                                 
+7 Bunga Roswari, Sukmareni, and Syaiful Munandar, “Penerapan Restorative Justice Oleh Kejaksaan Negeri 
+Pasaman Teradap Pelaku Tindak Pidana Penyalahgunaan Narkotika,” UNES Law Review 6, no. 1 (2023): 
+953–65, https://review-unes.com/index.php/law/article/view/772. 
+8 Kejagung: Penerapan Restorative Justice bagi Pemakai Narkoba Jangan Main-main" selengkapnya 
+https://news.detik.com/berita/d-6590820/kejagung-penerapan-restorative-justice-bagi-pemakai-narkoba-
+jangan-main-main. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+19 
+ 
+ 
+It is known that restorative justice is a new concept of thought that has 
+developed in case settlement as a pattern of modern legal thinking. Ketut said a 
+number of parties responded positively to the Attorney's Office's breakthrough on 
+the settlement of criminal cases at the prosecution level with the concept of fast, 
+precise, simple, and effective in accordance with the Criminal Procedure Code. Drug 
+addicts and victims must have a foundation for healthy growth and integration into 
+society, in accordance with the requirements of Article 54 of the UN Charter on the 
+Rights of the Child. Restorative justice is not this form of rehabilitation. The basis 
+for determining whether or not to enter drug treatment is determined by Article 
+103 of the Narcotics Law, but they can also decide to bargain as stated in Article 134 
+of the Narcotics Law. The rehabilitation period is also known as the education 
+period. This is because rehabilitation is clearly part of the law.9 
+Detoxification is in the right to health of drug addicts is one form. From a 
+philosophical standpoint, restorative justice and rehabilitation complement each 
+other; their common goal is to help members of society become productive 
+members of society and become drug-free. Therefore, the restorative approach to 
+gun control is better understood from a philosophical standpoint through 
+restorative justice as the obligation of a state to improve the conditions of its 
+citizens and ultimately the victims of its own wrongdoing.10 
+The function of service and orientation as a process of rehabilitation and 
+reintegration of high-risk prisoners into society is to reduce the possibility of 
+recidivism, where prisoners have the opportunity to commit further offenses. This 
+is exemplified in the case of Freddy Budiman, who initially worked as a pickpocket 
+but then became a drug dealer, repeatedly going in and out of prison until finally 
+becoming a major drug dealer which led to the death penalty.11 
+The restorative justice approach to drug abuse cases considers a deeper 
+human dimension compared to the general application of law that focuses more on 
+punishment. This approach, which is recovery-oriented, offers a more 
+comprehensive way of dealing with offenders who are also victims of a larger and 
+more complex situation, namely the drug trade. Through restorative justice, there 
+                                                 
+9 M Khoirul Anam, “Badan Narkotika Nasional Kota Mojokerto,” 2022, 13–26. 
+10 Satria Nenda Eka Saputra and Muridah Isnawati, “Overcrowding Lembaga Pemasyarakatan (Lapas) Dalam 
+System 
+Pemidanaan 
+Di 
+Indonesia,” 
+Pagaruyuang 
+Law 
+Journal 
+6, 
+no. 
+1 
+(2022): 
+52–70, 
+https://doi.org/10.31869/plj.v0i0.3822. 
+11 Anindya Dwita and Mohammad Zamroni, “Jurnal Hukum Dan Etika Kesehatan,” Jurnal Hukum Dan Etika 
+Kesehatan 1, no. September (2021): 46–64. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+20 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+is an attempt to not only restore the individual, but also repair social relationships 
+that have been damaged by involvement in drugs.12 
+Furthermore, in the context of substance abuse, restorative justice tries to 
+focus on the root causes that lead individuals to engage in such abuse. These 
+include factors such as poverty, unemployment, social injustice, and limited access 
+to education and healthcare. By addressing these issues, restorative justice not only 
+seeks to restore the individual, but also contribute to broader social change that can 
+reduce the incidence of drug abuse in the future.13 
+In practice, this approach requires collaboration between various 
+stakeholders, including government agencies, non-government organizations, and 
+the general public. Each of these parties has an important role in supporting 
+perpetrators and victims in their recovery process. For example, community 
+organizations can provide social and economic support, while government agencies 
+can provide mental health and rehabilitation services. The main challenge in 
+implementing restorative justice in drug cases is to ensure that all parties involved 
+accept the approach and are willing to work together. The biggest concerns often 
+relate to whether restorative justice can truly deliver justice for victims, and 
+whether the wider community can accept rehabilitated offenders back into society. 
+This requires ongoing dialog and education to the community about the benefits 
+and processes of restorative justice.14 
+Although restorative justice offers many benefits, more research and policy 
+development is needed to assess its overall effectiveness in the drug context. In 
+particular, it is important to evaluate the extent to which restorative justice can be 
+integrated into the existing legal system and how it can operate alongside 
+traditional law enforcement methods that are more punishment-oriented. This will 
+ensure that restorative justice is not only theoretical but also practical and effective 
+in its application in society.15 
+                                                 
+12 Putri Maiza, “The Effort to Reduce Over Capacity in Correctional Facilities through Social Work Alternative 
+Punishment,” Ius Poenale 2, no. 2 (2022): 1. 
+13 Tofik Yanuar Chandra, Joko Sriwidodo, and M.S. Tumanggor, “Rehabilitation of Narcotic Addictives: An 
+Overview of Implementation and The Effort by Restorative Justice,” Krtha Bhayangkara 17, no. 3 (2023): 
+465–80, https://doi.org/10.31599/krtha.v17i3.2427. 
+14 Cok Satrya Aditya and Ani Purwanti, “Implementation of Sanctions against Addictive and Narcotic Abuse 
+Perspective Restorative Justice,” Polit Journal Scientific Journal of Politics 3, no. 1 (2023): 32–37, 
+https://doi.org/10.33258/polit.v3i1.847. 
+15 Darsono Sitanggang, Lagat Parroha Patar Siadari, and Dahlan Dahlan, “Juridical Analysis of The 
+Application of Restorative Justice in Case of Narcotics Abuse in The Directorate of Drugs, Polda Kepri,” 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+21 
+ 
+ 
+2. Social Reintegration 
+Rehabilitation is a recovery process for drug addicts, including addicts, 
+abusers and victims of abuse, both medically and socially to restore them to become 
+capable and useful citizens for the community. Rehabilitation is a form of 
+alternative punishment given to drug addicts under certain conditions. The 
+determination of rehabilitation is carried out by law enforcement officials and 
+authorized organizations by forming an Integrated Assessment Team (TAT) 
+consisting of doctors, psychologists, the National Narcotics Agency (BNN), the 
+Prosecutor's Office, and the Ministry of Law and Humanity (Kemenkumham). At 
+the request of investigators, this team analyzes the role of a person arrested as an 
+addict, abuser, or victim of drug abuse.16 
+There are several differences from the analysis of each role in drug use, 
+namely narcotics addicts are people who use or abuse narcotics and are in a state of 
+dependence on narcotics, both physically and psychologically. A drug abuser is a 
+person who uses drugs without the right or against the law. When a person 
+continuously abuses narcotics, then the person will be in a state of dependence on 
+narcotics, both physically and psychologically and Victims of Drug Abuse, is 
+someone who suffers from dependence caused by drug abuse (Narcotics, 
+Psychotropic and other Adaptive Substances including Liquor) either of their own 
+accord or because of the encouragement or coercion of others. 
+Some types of cases that can be handled with a restorative justice approach 
+include cases involving juvenile offenders through the diversion mechanism 
+regulated in the SPPA, cases of light maltreatment as above, monetary crimes such 
+as theft, embezzlement, and fraud where the value of the victim's loss is not too 
+large and the perpetrator can still try to provide compensation to the victim.17 Drug 
+addicts are no exception, as they are victims of drug trafficking networks and make 
+up the largest population in prisons. Implementation can be done through judicial 
+decisions and for prisoners through the Directorate General of Corrections' 
+                                                                                                                                                        
+International Journal of Educational Review, Law And Social Sciences (IJERLAS) 3, no. 1 (2023): 1–10, 
+http://radjapublika.com/index.php/IJERLAS/article/view/479. 
+16 Yoga Pangestu and Mitro Subroto, “Pengaruh Pemberian Asimilasi Di Rumah Terhadap Penekanan Angka 
+Overkapasitas Di Lembaga Pemasyarakatan Yoga,” Jurnal JPDK UniVersitas Pahlawan 4 (2022): 2018–23, 
+http://journal.universitaspahlawan.ac.id/index.php/jpdk/article/view/4074. 
+17 Mustaqim Almond and Eva Achjani Zulfa, “Optimalisasi Pendekatan Restorative Justice Terhadap 
+Victimless Crime (Penyalahgunaan Narkoba) Sebagai Solusi Lapas Yang Over Kapasitas,” Jurnal Pendidikan 
+Tambusai 
+6, 
+no. 
+1 
+SE-Articles 
+of 
+Research 
+(2022): 
+8198–8206, 
+https://jptam.org/index.php/jptam/article/view/3684. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+22 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+program, which is currently also encouraging the granting of amnesty for users 
+who have served a sentence for a certain period of time and who have undergone 
+rehabilitation.18 
+Social reintegration for drug addicts through a restorative justice approach 
+demands a comprehensive and integrated framework, which not only addresses the 
+legal aspects of drug problems but also integrates social services, mental health, 
+and community support. It is intended to restore individuals not only as members 
+of society who no longer use drugs, but also as productive and contributing 
+individuals. To achieve this, it is crucial that the reintegration program is designed 
+to meet the specific needs of the individual, which may vary depending on their 
+drug use history, mental health, socioeconomic status, and other factors. 
+One critical aspect of social reintegration is the understanding that it is often 
+a long-term process that requires patience and significant resources. Effective 
+reintegration programs should include vocational and educational training, mental 
+health counseling and therapy, and support in finding and maintaining 
+employment. All of this should take place in a supportive environment that 
+encourages personal recovery and growth, and should be accessible to all 
+individuals in need.19 
+Cooperation 
+between 
+government 
+agencies 
+and 
+non-government 
+organizations is also crucial in supporting the reintegration process. Government 
+agencies can provide resources and supportive policies, while non-government 
+organizations are often closer to the community and can provide more personalized 
+and direct services to individuals. These partnerships can also include participation 
+from family and friends of the individuals involved, all of whom can provide 
+necessary emotional support during the reintegration process.20 
+Social reintegration through restorative justice requires an impartial and 
+non-discriminatory approach. This means that there must be an effort to combat 
+the stigma often attached to former drug users. Through education and advocacy, 
+the general public can be invited to better understand the issues faced by addicts in 
+                                                 
+18 Anwar Sulaiman and Asmak Hosnah, “Analisis Penerapan Restorative Justice Dalam Kasus Tindak Pidana 
+Ringan Sebagai Upaya Mengurangi Over Kapasitas Di Lembaga Pemasyarakatan,” Internasional Journal of 
+Socioology, Policy and Law (IJOSPL) 3, no. 2 (2022): 57–67. 
+19 Fakultas Hukum, Universitas Lampung, and Bandar Lampung, “E-ISSN: 2598-3105 P-ISSN:2723-2581 
+Http://Jurnal.Fh.Unila.Ac.Id/Index.Php/Cepalo” 
+6, 
+no. 
+1 
+(2022): 
+74–85, 
+https://doi.org/10.2648/cepalo.v6no1. 
+20 Sri Indriawati, “Politics of Criminal Law in Implementing Restorative Justice Against Narcotics Addicts in 
+the Criminal Justice System,” 2022, https://doi.org/10.4108/eai.16-4-2022.2320131. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City  
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+23 
+ 
+ 
+recovery and recognize them as individuals who have the potential to change and 
+contribute back to society. 
+Measuring the success of a reintegration program should go beyond 
+counting how many individuals successfully abstain from drugs; it should also 
+assess how well the individual is able to maintain employment, social relationships, 
+and mental health. Ongoing monitoring and evaluation is essential to tailor 
+reintegration programs to meet the evolving needs of those in recovery as well as to 
+ensure that restorative justice approaches can provide maximum benefit to 
+individuals and society as a whole.21 
+At the community level, social reintegration also requires efforts to increase 
+understanding and awareness of drug issues and provide positive support for 
+individuals struggling to recover. This can be done through educational programs, 
+awareness campaigns, and the provision of relevant community resources. With 
+increased public understanding of the complexities of drug abuse and the 
+importance of supporting recovery, stigma against former drug users can be 
+reduced, and recovering individuals can be more easily accepted back into society 
+without being judged. It is also important to strengthen social support networks for 
+individuals undergoing reintegration. This could include peer support programs, 
+support groups, and a network of volunteers who are willing to provide practical 
+help and support to individuals in need. By having a strong support network, 
+recovering individuals will feel more supported in their efforts to rebuild their lives 
+and prevent returning to old habits. 
+Social reintegration programs should also pay attention to the psychosocial 
+aspects of recovery. This means not only providing adequate mental health 
+services, but also helping individuals rebuild confidence, self-esteem, and 
+interpersonal skills that may have been affected by the drug abuse experience. By 
+strengthening these aspects, individuals will be better equipped to overcome 
+challenges and take on a positive role in society. 
+The sustainability of social reintegration requires ongoing support from 
+various parties, including the government, non-governmental organizations, the 
+private sector, and the general public. This means that it is important to build 
+strong partnerships between various stakeholders and coordinate their efforts to 
+create a supportive and inclusive environment for individuals recovering from drug 
+abuse. By working together, we can create a better and more empathetic society for 
+                                                 
+21 Khalid Karim et al., “International Journal of Social HEALTH OUTCOME” 2, no. 3 (2006): 112–16. 
+
+Diaz Ratna Iswara; Taufiq Nugroho. 
+AJUDIKASI : Jurnal Ilmu Hukum, Volume 8 Nomor 1, Juni 2024. Hlm. 13-26 
+https://doi.org/10.30656/ajudikasi.v8i1.8399 
+P-ISSN 2613-9995 & E-ISSN 2614-0179  
+ 
+The Effect of Restorative Justice for Drug Users on The Over Capcity 
+of Correctional Facility in Solo City 
+24 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+ 
+all its members, including those who have gone through the experience of drug 
+abuse. 
+ 
+D. CONCLUSION 
+The conclusion of this article is that restorative justice offers an alternative and 
+innovative approach in dealing with the problem of overcrowding in prisons, 
+particularly that caused by drug offenders in Solo City. This approach replaces the 
+traditional punishment paradigm with a focus on rehabilitation, reconciliation, and 
+active participation of drug users in the recovery process. Restorative justice not only 
+has the potential to reduce overcrowding in prisons by providing alternatives to 
+detention, such as community-based rehabilitation programs and electronic 
+monitoring, but also strengthens the criminal justice system by offering a more 
+humane and sustainable solution to the drug problem. Through the implementation of 
+restorative justice, drug offenders are provided with opportunities for rehabilitation, 
+both medically and socially, for more effective reintegration into society. This 
+approach not only helps to reduce the burden on correctional institutions but also 
+supports the recovery of individuals as productive and useful citizens. Thus, 
+restorative justice provides new hope in handling the problem of drug abuse and 
+prison overcrowding, in line with the goal of fostering prisoners to become individuals 
+who are aware of their mistakes, improve themselves, and not repeat criminal acts in 
+the future. 
+ 
+REFERENCES 
+Almond, Mustaqim, and Eva Achjani Zulfa. “Optimalisasi Pendekatan Restorative 
+Justice Terhadap Victimless Crime (Penyalahgunaan Narkoba) Sebagai Solusi 
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+ 
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+PRELIMINARY PRINT 
+Volume 598 U. S. Part 2 
+Pages 651–728 
+OFFICIAL REPORTS 
+OF 
+THE SUPREME COURT 
+May 25, 2023 
+REBECCA A. WOMELDORF 
+reporter of decisions 
+Page Proof Pending Publication
+NOTICE: This preliminary print is subject to formal revision before 
+the bound volume is published. Users are requested to notify the Reporter 
+of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
+pio@supremecourt.gov, of any typographical or other formal errors. 
+
+Page Proof Pending Publication
+OCTOBER TERM, 2022 
+651 
+Syllabus 
+SACKETT et ux. v. ENVIRONMENTAL PROTECTION 
+AGENCY et al. 
+certiorari to the united states court of appeals for 
+the ninth circuit 
+No. 21–454. Argued October 3, 2022—Decided May 25, 2023 
+Petitioners Michael and Chantell Sackett purchased property near Priest 
+Lake, Idaho, and began backflling the lot with dirt to prepare for build­
+ing a home. The Environmental Protection Agency informed the Sack­
+etts that their property contained wetlands and that their backflling 
+violated the Clean Water Act, which prohibits discharging pollutants 
+into “the waters of the United States.” 33 U. S. C. § 1362(7). The EPA 
+ordered the Sacketts to restore the site, threatening penalties of over 
+$40,000 per day. The EPA classifed the wetlands on the Sacketts' lot 
+as “waters of the United States” because they were near a ditch that 
+fed into a creek, which fed into Priest Lake, a navigable, intrastate lake. 
+The Sacketts sued, alleging that their property was not “waters of the 
+United States.” The District Court entered summary judgment for the 
+EPA. The Ninth Circuit affrmed, holding that the CWA covers wet­
+lands with an ecologically signifcant nexus to traditional navigable wa­
+ters and that the Sacketts' wetlands satisfy that standard. 
+Held: The CWA's use of “waters” in § 1362(7) refers only to “ `geographi­
+c[al] features' that are described in ordinary parlance as `streams, 
+oceans, rivers, and lakes' ” and to adjacent wetlands that are “indistin­
+guishable” from those bodies of water due to a continuous surface con­
+nection. Rapanos v. United States, 547 U. S. 715, 755, 742, 739 (plural­
+ity opinion). To assert jurisdiction over an adjacent wetland under the 
+CWA, a party must establish “frst, that the adjacent [body of water 
+constitutes] . . . `water[s] of the United States,' (i. e., a relatively perma­
+nent body of water connected to traditional interstate navigable wa­
+ters); and second, that the wetland has a continuous surface connection 
+with that water, making it diffcult to determine where the `water' ends 
+and the `wetland' begins.” Id., at 742. Pp. 663–684. 
+(a) The uncertain meaning of “the waters of the United States” 
+has been a persistent problem, sparking decades of agency action and 
+litigation. Resolving the CWA's applicability to wetlands requires a 
+review of the history surrounding the interpretation of that phrase. 
+Pp. 663–671. 
+(1) During the period relevant to this case, the two federal agencies 
+charged with enforcement of the CWA—the EPA and the Army Corps 
+
+652 
+SACKETT v. EPA 
+Syllabus 
+of Engineers—similarly defned “the waters of the United States” 
+broadly to encompass “[a]ll . . . waters” that “could affect interstate or 
+foreign commerce.” 40 CFR § 230.3(s)(3). The agencies likewise gave 
+an expansive interpretation of wetlands adjacent to those waters, de­
+fining “adjacent” to mean “bordering, contiguous, or neighboring.” 
+§ 230.3(b). In United States v. Riverside Bayview Homes, Inc., 474 
+U. S. 121, the Court confronted the Corps' assertion of authority under 
+the CWA over wetlands that “actually abut[ted] on a navigable water­
+way.” Id., at 135. Although concerned that the wetlands fell outside 
+“traditional notions of `waters,' ” the Court deferred to the Corps, rea­
+soning that “the transition from water to solid ground is not necessarily 
+or even typically an abrupt one.” Id., at 132–133. Following River­
+side Bayview, the agencies issued the “migratory bird rule,” extending 
+CWA jurisdiction to any waters or wetlands that “are or would be used 
+as [a] habitat” by migratory birds or endangered species. 53 Fed. Reg. 
+20765. The Court rejected the rule after the Corps sought to apply it 
+to several isolated ponds located wholly within the State of Illinois, hold­
+ing that the CWA does not “exten[d] to ponds that are not adjacent to 
+open water.” Solid Waste Agency of Northern Cook Cty. v. Army 
+Corps of Engineers, 531 U. S. 159, 168 (SWANCC) (emphasis deleted). 
+The agencies responded by instructing their feld agents to determine 
+the scope of the CWA's jurisdiction on a case-by-case basis. Within a 
+few years, the agencies had “interpreted their jurisdiction over `the wa­
+ters of the United States' to cover 270-to-300 million acres” of wetlands 
+and “virtually any parcel of land containing a channel or conduit . . . 
+through which rainwater or drainage may occasionally or intermittently 
+fow.” Rapanos, 547 U. S., at 722 (plurality opinion). 
+Against that backdrop, the Court in Rapanos vacated a lower court 
+decision that had held that the CWA covered wetlands near ditches and 
+drains that emptied into navigable waters several miles away. As to 
+the rationale for vacating, however, no position in Rapanos commanded 
+a majority of the Court. Four Justices concluded that the CWA's cover­
+age was limited to certain relatively permanent bodies of water con­
+nected to traditional interstate navigable waters and to wetlands that 
+are “as a practical matter indistinguishable” from those waters. Id., at 
+755 (emphasis deleted). Justice Kennedy, concurring only in the judg­
+ment, wrote that CWA jurisdiction over adjacent wetlands requires a 
+“signifcant nexus” between the wetland and its adjacent navigable wa­
+ters, which exists when “the wetlands, either alone or in combination 
+with similarly situated lands in the region, signifcantly affect the chemi­
+cal, physical, and biological integrity” of those waters. Id., at 779–780. 
+Following Rapanos, feld agents brought nearly all waters and wetlands 
+under the risk of CWA jurisdiction by engaging in fact-intensive 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+653 
+Syllabus 
+“signifcant-nexus” determinations that turned on a lengthy list of hy­
+drological and ecological factors. 
+Under the agencies' current rule, traditional navigable waters, inter­
+state waters, and the territorial seas, as well as their tributaries and 
+adjacent wetlands, are waters of the United States. See 88 Fed. Reg. 
+3143. So too are any “[i]ntrastate lakes and ponds, streams, or wet­
+lands” that either have a continuous surface connection to categorically 
+included waters or have a signifcant nexus to interstate or traditional 
+navigable waters. Id., at 3006, 3143. Finding a signifcant nexus con­
+tinues to require consideration of a list of open-ended factors. Ibid. 
+Finally, the current rule returns to the agencies' longstanding defnition 
+of “adjacent.” Ibid. Pp. 663–669. 
+(2) Landowners who even negligently discharge pollutants into 
+navigable waters without a permit potentially face severe criminal and 
+civil penalties under the Act. As things currently stand, the agencies 
+maintain that the signifcant-nexus test is suffcient to establish jurisdic­
+tion over “adjacent” wetlands. By the EPA's own admission, nearly all 
+waters and wetlands are potentially susceptible to regulation under this 
+test, putting a staggering array of landowners at risk of criminal prose­
+cution for such mundane activities as moving dirt. Pp. 669–671. 
+(b) Next, the Court considers the extent of the CWA's geographical 
+reach. Pp. 671–679. 
+(1) To make sense of Congress's choice to defne “navigable waters” 
+as “the waters of the United States,” the Court concludes that the 
+CWA's use of “waters” encompasses “only those relatively permanent, 
+standing or continuously fowing bodies of water `forming geographic[al] 
+features' that are described in ordinary parlance as `streams, oceans, 
+rivers, and lakes.' ” Rapanos, 547 U. S., at 739 (plurality opinion). 
+This reading follows from the CWA's deliberate use of the plural “wa­
+ters,” which refers to those bodies of water listed above, and also helps 
+to align the meaning of “the waters of the United States” with the de­
+fned term “navigable waters.” More broadly, this reading accords with 
+how Congress has employed the term “waters” elsewhere in the CWA— 
+see, e. g., 33 U. S. C. §§ 1267(i)(2)(D), 1268(a)(3)(I)—and in other laws— 
+see, e. g., 16 U. S. C. §§ 745, 4701(a)(7). This Court has understood 
+CWA's use of “waters” in the same way. See, e. g., Riverside Bayview, 
+474 U. S., at 133; SWANCC, 531 U. S., at 168–169, 172. 
+The EPA's insistence that “water” is “naturally read to encompass 
+wetlands” because the “presence of water is `universally regarded as the 
+most basic feature of wetlands' ” proves too much. Brief for Respond­
+ents 19. It is also tough to square with SWANCC's exclusion of isolated 
+ponds or Riverside Bayview's extensive focus on the adjacency of wet­
+lands to covered waters. Finally, it is diffcult to see how the States' 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+654 
+SACKETT v. EPA 
+Syllabus 
+“responsibilities and rights” in regulating water resources would re­
+main primary” if the EPA had such broad jurisdiction. § 1251(b). 
+Pp. 671–674. 
+(2) Statutory context shows that some wetlands nevertheless qual­
+ify as “waters of the United States.” Specifcally, §1344(g)(1), which 
+authorizes States to conduct certain permitting programs, specifes that 
+discharges may be permitted into any waters of the United States, 
+except for traditional navigable waters, “including wetlands adjacent 
+thereto,” suggesting that at least some wetlands must qualify as “waters 
+of the United States.” But § 1344(g)(1) cannot defne what wetlands 
+the CWA regulates because it is not the operative provision that defnes 
+the Act's reach. 
+Instead, the reference to adjacent wetlands in 
+§ 1344(g)(1) must be harmonized with “the waters of the United States,” 
+which is the operative term that defnes the CWA's reach. Because the 
+“adjacent” wetlands in § 1344(g)(1) are “includ[ed]” within “waters of 
+the United States,” these wetlands must qualify as “waters of the 
+United States” in their own right, i. e., be indistinguishably part of a 
+body of water that itself constitutes “waters” under the CWA. To hold 
+otherwise would require implausibly concluding that Congress tucked 
+an important expansion to the reach of the CWA into convoluted lan­
+guage in a relatively obscure provision concerning state permitting pro­
+grams. Understanding the CWA to apply to wetlands that are distin­
+guishable from otherwise covered “waters of the United States” would 
+substantially broaden § 1362(7) to defne “navigable waters” as “waters 
+of the United States and adjacent wetlands.” But § 1344(g)(1)'s use of 
+the term “including” makes clear that it does not purport to do any such 
+thing. It merely refects Congress's assumption that certain “adjacent” 
+wetlands are part of the “waters of the United States.” 
+To determine when a wetland is part of adjacent “waters of the United 
+States,” the Court agrees with the Rapanos plurality that the use of 
+“waters” in § 1362(7) may be fairly read to include only wetlands that 
+are “indistinguishable from waters of the United States.” This occurs 
+only when wetlands have “a continuous surface connection to bodies that 
+are `waters of the United States' in their own right, so that there is no 
+clear demarcation between `waters' and wetlands.” 547 U. S., at 742. 
+In sum, the CWA extends to only wetlands that are “as a practical 
+matter indistinguishable from waters of the United States.” This re­
+quires the party asserting jurisdiction to establish “frst, that the adja­
+cent [body of water constitutes] . . . `water[s] of the United States' (i. e., 
+a relatively permanent body of water connected to traditional interstate 
+navigable waters); and second, that the wetland has a continuous surface 
+connection with that water, making it diffcult to determine where the 
+`water' ends and the `wetland' begins.” Id., at 755, 742. Pp. 674–679. 
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+655 
+Syllabus 
+(c) The EPA asks the Court to defer to its most recent rule providing 
+that “adjacent wetlands are covered by the [CWA] if they `possess a 
+signifcant nexus to' traditional navigable waters” and that wetlands are 
+“adjacent” when they are “neighboring” to covered waters. Brief for 
+Respondents 32, 20. For multiple reasons, the EPA's position lacks 
+merit. Pp. 679–683. 
+(1) The EPA's interpretation is inconsistent with the CWA's text 
+and structure and clashes with “background principles of construction” 
+that apply to the interpretation of the relevant provisions. Bond v. 
+United States, 572 U. S. 844, 857. First, “exceedingly clear language” 
+is required if Congress wishes to alter the federal/state balance or the 
+Government's power over private property. United States Forest Serv­
+ice v. Cowpasture River Preservation Assn., 590 U. S. –––, –––. The 
+Court has thus required a clear statement from Congress when deter­
+mining the scope of “the waters of the United States.” Second, the 
+EPA's interpretation gives rise to serious vagueness concerns in light 
+of the CWA's criminal penalties, thus implicating the due process re­
+quirement that penal statutes be defned “ `with suffcient defniteness 
+that ordinary people can understand what conduct is prohibited.' ” Mc­
+Donnell v. United States, 579 U. S. 550, 576. Where penal statutes 
+could sweep broadly enough to render criminal a host of what might 
+otherwise be considered ordinary activities, the Court has been wary 
+about going beyond what “Congress certainly intended the statute to 
+cover.” Skilling v. United States, 561 U. S. 358, 404. Under these two 
+principles, the judicial task when interpreting “the waters of the United 
+States” is to ascertain whether clear congressional authorization exists 
+for the EPA's claimed power. Pp. 679–681. 
+(2) The EPA claims that Congress ratifed the EPA's regulatory 
+defnition of “adjacent” when it amended the CWA to include the refer­
+ence to “adjacent” wetlands in § 1344(g)(1). This argument fails for at 
+least three reasons. First, the text of §§ 1362(7) and 1344(g) shows that 
+“adjacent” cannot include wetlands that are merely nearby covered wa­
+ters. Second, EPA's argument cannot be reconciled with this Court's 
+repeated recognition that § 1344(g)(1) “ `does not conclusively determine 
+the construction to be placed on . . . the relevant defnition of “navigable 
+waters.” ' ” SWANCC, 531 U. S., at 171. Third, the EPA falls short of 
+establishing the sort of “overwhelming evidence of acquiescence” neces­
+sary to support its argument in the face of Congress's failure to amend 
+§ 1362(7). Id., at 170, n. 5. Finally, the EPA's various policy arguments 
+about the ecological consequences of a narrower defnition of “adjacent” 
+are rejected. Pp. 681–683. 
+8 F. 4th 1075, reversed and remanded. 
+
+Page Proof Pending Publication
+656 
+SACKETT v. EPA 
+Syllabus 
+Alito, J., delivered the opinion of the Court, in which Roberts, C. J., 
+and Thomas, Gorsuch, and Barrett, JJ., joined. Thomas, J., fled a 
+concurring opinion, in which Gorsuch, J., joined, post, p. 684. Kagan, J., 
+fled an opinion concurring in the judgment, in which Sotomayor and 
+Jackson, JJ., joined, post, p. 710. Kavanaugh, J., fled an opinion concur­
+ring in the judgment, in which Sotomayor, Kagan, and Jackson, JJ., 
+joined, post, p. 715. 
+Damien M. Schiff argued the cause for petitioners. With 
+him on the briefs was Anthony L. François. 
+Acting Solicitor General Fletcher argued the cause for 
+respondents. With him on the brief were Assistant Attor­
+ney General Kim, Deputy Solicitor General Stewart, Mat­
+thew Guarnieri, Jennifer Scheller Neumann, Brian C. Toth, 
+Susannah Landes Weaver, Steven Neugeboren, Karyn I. O. 
+Wendelowski, Carrie Ricci, and Zaheer Tajani.* 
+*Briefs of amici curiae urging reversal were fled for the State of 
+Alaska by Treg R. Taylor, Attorney General of Alaska, and David A. Wil­
+kinson and Julie Pack, Assistant Attorneys General; for the State of West 
+Virginia et al. by Patrick Morrisey, Attorney General of West Virginia, 
+Lindsay S. See, Solicitor General, and Michael R. Williams, Senior Dep­
+uty Solicitor General, and by the Attorneys General for their respective 
+States as follows: Steve Marshall of Alabama, Mark Brnovich of Arizona, 
+Leslie Rutledge of Arkansas, Ashley Moody of Florida, Christopher M. 
+Carr of Georgia, Lawrence Wasden of Idaho, Theodore E. Rokita of Indi­
+ana, Derek Schmidt of Kansas, Daniel Cameron of Kentucky, Jeff Landry 
+of Louisiana, Lynn Fitch of Mississippi, Eric S. Schmitt of Missouri, Aus­
+tin Knudsen of Montana, Douglas J. Peterson of Nebraska, Drew Wrigley 
+of North Dakota, John Formella of New Hampshire, Dave Yost of Ohio, 
+John O'Connor of Oklahoma, Alan Wilson of South Carolina, Jason 
+Ravnsborg of South Dakota, Herbert Slatery of Tennessee, Ken Paxton 
+of Texas, Sean D. Reyes of Utah, Jason Miyares of Virginia, and Bridget 
+Hill of Wyoming; for the American Exploration and Mining Association 
+et al. by Christopher D. Thomas and Andrea J. Driggs; for the American 
+Petroleum Institute et al. by Catherine E. Stetson, Sean Marotta, and 
+Meredith B. Cody; for the Americans for Prosperity Foundation by Mi­
+chael Pepson and Cynthia Fleming Crawford; for the Associated Indus­
+tries of Florida et al. by Terry P. Cole; for the Association of American 
+Railroads by Fred R. Wagner and Jay C. Johnson; for the Cato Institute 
+et al. by Jay R. Schweikert, Karen Harned, Cory L. Andrews, and John 
+
+Cite as: 598 U. S. 651 (2023) 
+657 
+Opinion of the Court 
+Justice Alito delivered the opinion of the Court. 
+This case concerns a nagging question about the outer 
+reaches of the Clean Water Act (CWA), the principal federal 
+M. Masslon II; for the Chamber of Commerce of the United States of 
+America by Elbert Lin, Kerry L. McGrath, Erica N. Peterson, and An­
+drew R. Varcoe; for Congressional Western Caucus Members by Tyler R. 
+Green; for Duarte Nursery, Inc., by Timothy Kassouni; for Farm Bureau 
+of Arkansas et al. by Michael B. Kimberly, Kari E. Fisher, Chad Endsley, 
+Leah Curtis, Amy Milam, and Christina L. Gruenhagen; for Forestry 
+Organizations by David Y. Chung, Elizabeth B. Dawson, and William R. 
+Murray; for Fourteen National Agricultural Organizations by Timothy S. 
+Bishop, Brett E. Legner, Ellen Steen, Travis Cushman, and Michael C. 
+Formica; for Freeport-McMoRan Inc. by Jeremy C. Marwell and James 
+T. Dawson; for the Liberty Justice Center by Daniel R. Suhr; for the 
+National Stone, Sand and Gravel Association et al. by Lawrence R. Liebes­
+man and Nick Goldstein; for the Savannah Economic Development Au­
+thority et al. by Misha Tseytlin, Anna Wildeman, and Byron Kirkpat­
+rick; for the Southeastern Legal Foundation by Jennifer A. Simon and 
+Kimberly S. Hermann; and for Sen. Shelley Moore Capito et al. by 
+Thomas M. Johnson, Jr. 
+Briefs of amici curiae urging affrmance were fled for the State of 
+Colorado by Philip J. Weiser, Attorney General of Colorado, Eric R. 
+Olson, Solicitor General, Carrie Noteboom, First Assistant Attorney Gen­
+eral, and Annette M. Quill and Jennifer Hunt, Senior Assistant Attorneys 
+General; for the State of New York et al. by Letitia James, Attorney 
+General of New York, Barbara D. Underwood, Solicitor General, Judith 
+N. Vale, Deputy Solicitor General, and Mark S. Grube, Assistant Solicitor 
+General, by Matthew J. Platkin, Acting Attorney General of New Jersey, 
+and by the Attorneys General for their respective jurisdictions as follows: 
+Rob Bonta of California, William Tong of Connecticut, Kathleen Jennings 
+of Delaware, Karl A. Racine of the District of Columbia, Holly T. Shikada 
+of Hawaii, Kwame Raoul of Illinois, Aaron M. Frey of Maine, Brian E. 
+Frosh of Maryland, Maura Healey of Massachusetts, Keith Ellison of Min­
+nesota, Hector Balderas of New Mexico, Joshua H. Stein of North Caro­
+lina, Ellen F. Rosenblum of Oregon, Thomas J. Donovan, Jr., of Vermont, 
+Robert W. Ferguson of Washington, and Joshua L. Kaul of Wisconsin; for 
+the American Sustainable Business Network et al. by Benjamin D. Bat­
+tles, Max E. Rodriguez, and Alison Borochoff-Porte; for the Constitutional 
+Accountability Center by Elizabeth B. Wydra and Brianne J. Gorod; for 
+Environmental and Community Organizations by Nicholas S. Torrey, 
+Catherine M. Rahm, and Ian Fein; for Former EPA Administrators by 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+658 
+SACKETT v. EPA 
+Opinion of the Court 
+law regulating water pollution in the United States.1 
+By 
+all accounts, the Act has been a great success. Before its 
+enactment in 1972, many of the Nation's rivers, lakes, and 
+streams were severely polluted, and existing federal legisla­
+tion had proved to be inadequate. Today, many formerly 
+fetid bodies of water are safe for the use and enjoyment of 
+the people of this country. 
+There is, however, an unfortunate footnote to this success 
+story: the outer boundaries of the Act's geographical reach 
+have been uncertain from the start. The Act applies to “the 
+waters of the United States,” but what does that phrase 
+mean? Does the term encompass any backyard that is 
+soggy enough for some minimum period of time? Does it 
+reach “mudfats, sandfats, wetlands, sloughs, prairie pot-
+Beth S. Brinkmann, Gary S. Guzy, and Eric Chung; for the Menominee 
+Indian Tribe of Wisconsin et al. by Janette K. Brimmer and Jill E. Grant; 
+for Outdoor Recreation and Conservation Organizations by Jennifer S. 
+Windom; for Public Citizen by Scott L. Nelson and Allison M. Zieve; for 
+the Waterkeeper Alliance et al. by Anna-Rose Mathieson, Kelly Hunter 
+Foster, and Eric J. Buescher; for Water Resource Management Organiza­
+tions by Caitlin J. Halligan; and for 167 U. S. Members of Congress by 
+Sara A. Colangelo. 
+Briefs of amici curiae were fled for the Atlantic Legal Foundation et al. 
+by Lawrence S. Ebner and Nancie G. Marzulla; for the Claremont Insti­
+tute's Center for Constitutional Jurisprudence by John C. Eastman and 
+Anthony T. Caso; for the Idaho Conservation League by Caleb Jaffe; for 
+the National Association of Clean Water Agencies by Alexandra Dapolito 
+Dunn, Thomas C. Jackson, and Stephanie F. Cagniart; for the National 
+Association of Counties et al. by Roderick E. Walston, J. G. Andre Mo­
+nette, and Lisa Soronen; for the National Association of Home Builders of 
+the United States by Thomas J. Ward and Jeffrey B. Augello; for the 
+National Cattlemen's Beef Association et al. by Scott Yager; for the Prop­
+erty and Environment Research Center by Jonathan Wood; for Scientifc 
+Societies by Royal C. Gardner, Stephanie Tai, Henry Weisburg, Kathleen 
+E. Gardner, and Erin Okuno; for the Western Urban Water Coalition by 
+Meredith Weinberg; and for the Wyoming Stock Growers Association et al. 
+by Karen Budd-Falen. 
+1 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq. 
+
+Cite as: 598 U. S. 651 (2023) 
+659 
+Opinion of the Court 
+holes, wet meadows, [or] playa lakes”? 2 
+How about ditches, 
+swimming pools, and puddles? 
+For more than a half century, the agencies responsible for 
+enforcing the Act have wrestled with the problem and 
+adopted varying interpretations. On three prior occasions, 
+this Court has tried to clarify the meaning of “the waters of 
+the United States.” But the problem persists. When we 
+last addressed the question 17 years ago, we were unable to 
+agree on an opinion of the Court.3 
+Today, we return to the 
+problem and attempt to identify with greater clarity what 
+the Act means by “the waters of the United States.” 
+I 
+A 
+For most of this Nation's history, the regulation of water 
+pollution was left almost entirely to the States and their sub­
+divisions. The common law permitted aggrieved parties to 
+bring nuisance suits against polluters. But as industrial 
+production and population growth increased the quantity and 
+toxicity of pollution, States gradually shifted to enforcement 
+by regulatory agencies.4 
+Conversely, federal regulation was 
+largely limited to ensuring that “traditional navigable wa­
+ters”—that is, interstate waters that were either navigable in 
+fact and used in commerce or readily susceptible of being used 
+in this way—remained free of impediments. See, e. g., Rivers 
+and Harbors Appropriations Act of 1899, 30 Stat. 1151; see 
+also United States v. Appalachian Elec. Power Co., 311 U. S. 
+377, 406–407 (1940); The Daniel Ball, 10 Wall. 557, 563 (1871). 
+2 40 CFR § 230.3(s)(3) (2008). 
+3 See Rapanos v. United States, 547 U. S. 715 (2006). Neither party 
+contends that any opinion in Rapanos controls. We agree. See Nichols 
+v. United States, 511 U. S. 738, 745–746 (1994). 
+4 See N. Hines, Nor Any Drop To Drink: Public Regulation of Water 
+Quality, 52 Iowa L. Rev. 186, 196–207 (1966). 
+Page Proof Pending Publication
+
+660 
+SACKETT v. EPA 
+Opinion of the Court 
+Congress's early efforts at directly regulating water pol­
+lution were tepid. Although the Federal Water Pollution 
+Control Act of 1948 allowed federal offcials to seek judicial 
+abatement of pollution in interstate waters, it imposed high 
+hurdles, such as requiring the consent of the State where 
+the pollution originated. See 62 Stat. 1156–1157. Despite 
+repeated amendments over the next two decades, few ac­
+tions were brought under this framework.5 
+Congress eventually replaced this scheme in 1972 with the 
+CWA. See 86 Stat. 816. The Act prohibits “the discharge 
+of any pollutant” into “navigable waters.” 
+33 U. S. C. 
+§§ 1311(a), 1362(12)(A). It broadly defnes the term “ `pol­
+lutant' ” to include not only contaminants like “chemical 
+wastes,” but also more mundane materials like “rock, sand,” 
+and “cellar dirt.” § 1362(6). 
+The CWA is a potent weapon. It imposes what have been 
+described as “crushing” consequences “even for inadvertent 
+violations.” Army Corps of Engineers v. Hawkes Co., 578 
+U. S. 590, 602 (2016) (Kennedy, J., concurring). Property 
+owners who negligently discharge “pollutants” into covered 
+waters may face severe criminal penalties including impris­
+onment. § 1319(c). These penalties increase for knowing 
+violations. Ibid. On the civil side, the CWA imposes over 
+$60,000 in fnes per day for each violation. See Note follow­
+ing 28 U. S. C. § 2461; 33 U. S. C. § 1319(d); 88 Fed. Reg. 989 
+(2023) (to be codifed in 40 CFR § 19.4). And due to the Act's 
+5-year statute of limitations, 28 U. S. C. § 2462, and expansive 
+interpretations of the term “violation,” these civil penalties 
+can be nearly as crushing as their criminal counterparts, see, 
+e. g., Borden Ranch Partnership v. United States Army 
+Corps of Engineers, 261 F. 3d 810, 813, 818 (CA9 2001) (up­
+holding Agency decision to count each of 348 passes of a plow 
+5 See Hearings on Activities of the Federal Water Pollution Control Ad­
+ministration before the Subcommittee on Air and Water Pollution of the 
+Senate Committee on Public Works, 90th Cong., 1st Sess., 674 (1967) (re­
+porting only one abatement suit between 1948 and 1967). 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+661 
+Opinion of the Court 
+by a farmer through “jurisdictional” soil on his farm as a 
+separate violation), aff 'd by an equally divided Court, 537 
+U. S. 99 (2002) (per curiam). 
+The Environmental Protection Agency (EPA) and the 
+Army Corps of Engineers (Corps) jointly enforce the CWA. 
+The EPA is tasked with policing violations after the fact, 
+either by issuing orders demanding compliance or by 
+bringing civil actions. § 1319(a). The Act also authorizes 
+private plaintiffs to sue to enforce its requirements. 
+§ 1365(a). On the front end, both agencies are empowered 
+to issue permits exempting activity that would otherwise 
+be unlawful under the Act. Relevant here, the Corps con­
+trols permits for the discharge of dredged or fll material 
+into covered waters. See § 1344(a). The costs of obtaining 
+such a permit are “signifcant,” and both agencies have ad­
+mitted that “the permitting process can be arduous, expen­
+sive, and long.” Hawkes Co., 578 U. S., at 594–595, 601. 
+Success is also far from guaranteed, as the Corps has as­
+serted discretion to grant or deny permits based on a long, 
+nonexclusive list of factors that ends with a catchall mandate 
+to consider “in general, the needs and welfare of the people.” 
+33 CFR § 320.4(a)(1) (2022). 
+Due to the CWA's capacious defnition of “pollutant,” its 
+low mens rea, and its severe penalties, regulated parties 
+have focused particular attention on the Act's geographic 
+scope. While its predecessor encompassed “interstate or 
+navigable waters,” 33 U. S. C. § 1160(a) (1970 ed.), the CWA 
+prohibits the discharge of pollutants into only “navigable wa­
+ters,” which it defnes as “the waters of the United States, 
+including the territorial seas,” 33 U. S. C. §§ 1311(a), 1362(7), 
+(12)(A) (2018 ed.). The meaning of this defnition is the 
+persistent problem that we must address. 
+B 
+Michael and Chantell Sackett have spent well over a dec­
+ade navigating the CWA, and their voyage has been bumpy 
+Page Proof Pending Publication
+
+662 
+SACKETT v. EPA 
+Opinion of the Court 
+and costly. In 2004, they purchased a small lot near Priest 
+Lake, in Bonner County, Idaho. In preparation for building 
+a modest home, they began backflling their property with 
+dirt and rocks. A few months later, the EPA sent the Sack­
+etts a compliance order informing them that their backflling 
+violated the CWA because their property contained pro­
+tected wetlands. The EPA demanded that the Sacketts 
+immediately “ `undertake activities to restore the Site' ” pur­
+suant to a “ `Restoration Work Plan' ” that it provided. 
+Sackett v. EPA, 566 U. S. 120, 125 (2012). The order threat­
+ened the Sacketts with penalties of over $40,000 per day if 
+they did not comply. 
+At the time, the EPA interpreted “the waters of the 
+United States” to include “[a]ll . . . waters” that “could affect 
+interstate or foreign commerce,” as well as “[w]etlands ad­
+jacent” to those waters. 40 CFR §§ 230.3(s)(3), (7) (2008). 
+“[A]djacent” was defned to mean not just “bordering” or 
+“contiguous,” but also “neighboring.” § 230.3(b). Agency 
+guidance instructed offcials to assert jurisdiction over wet­
+lands “adjacent” to non-navigable tributaries when those 
+wetlands had “a signifcant nexus to a traditional navigable 
+water.” 6 
+A “signifcant nexus” was said to exist when 
+“ `wetlands, either alone or in combination with similarly sit­
+uated lands in the region, signifcantly affect the chemical, 
+physical, and biological integrity' ” of those waters. 2007 
+Guidance 8 (emphasis added). In looking for evidence of a 
+“signifcant nexus,” feld agents were told to consider a wide 
+range of open-ended hydrological and ecological factors. 
+See id., at 7. 
+According to the EPA, the “wetlands” on the Sacketts' lot 
+are “adjacent to” (in the sense that they are in the same 
+neighborhood as) what it described as an “unnamed tribu­
+tary” on the other side of a 30-foot road. App. 33. That 
+6 EPA & Corps, Clean Water Act Jurisdiction Following the U. S. Su­
+preme Court's Decision in Rapanos v. United States & Carabell v. United 
+States 7–11 (2007) (2007 Guidance). 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+663 
+Opinion of the Court 
+tributary feeds into a non-navigable creek, which, in turn, 
+feeds into Priest Lake, an intrastate body of water that the 
+EPA designated as traditionally navigable. To establish a 
+signifcant nexus, the EPA lumped the Sacketts' lot together 
+with the Kalispell Bay Fen, a large nearby wetland complex 
+that the Agency regarded as “similarly situated.” Accord­
+ing to the EPA, these properties, taken together, “signif­
+cantly affect” the ecology of Priest Lake. Therefore, the 
+EPA concluded, the Sacketts had illegally dumped soil and 
+gravel onto “the waters of the United States.” 
+The Sacketts fled suit under the Administrative Proce­
+dure Act, 5 U. S. C. §702 et seq., alleging that the EPA lacked 
+jurisdiction because any wetlands on their property were not 
+“waters of the United States.” The District Court initially 
+dismissed the suit, reasoning that the compliance order was 
+not a fnal agency action, but this Court ultimately held that 
+the Sacketts could bring their suit under the APA. See 
+Sackett, 566 U. S., at 131. After seven years of additional 
+proceedings on remand, the District Court entered sum­
+mary judgment for the EPA. 2019 WL 13026870 (D Idaho, 
+Mar. 31, 2019). The Ninth Circuit affrmed, holding that the 
+CWA covers adjacent wetlands with a signifcant nexus to 
+traditional navigable waters and that the Sacketts' lot satis­
+fed that standard. 8 F. 4th 1075, 1091–1093 (2021). 
+We granted certiorari to decide the proper test for deter­
+mining whether wetlands are “waters of the United States.” 
+595 U. S. ––– (2022). 
+II 
+A 
+In defning the meaning of “the waters of the United 
+States,” we revisit what has been “a contentious and diffcult 
+task.” National Assn. of Mfrs. v. Department of Defense, 
+583 U. S. 109, 113–114 (2018). The phrase has sparked dec­
+ades of agency action and litigation. In order to resolve the 
+CWA's applicability to wetlands, we begin by reviewing 
+this history. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+664 
+SACKETT v. EPA 
+Opinion of the Court 
+The EPA and the Corps initially promulgated different in­
+terpretations of “the waters of the United States.” The 
+EPA defned its jurisdiction broadly to include, for example, 
+intrastate lakes used by interstate travelers. 38 Fed. Reg. 
+13529 (1973). Conversely, the Corps, consistent with its 
+historical authority to regulate obstructions to navigation, 
+asserted jurisdiction over only traditional navigable waters. 
+39 Fed. Reg. 12119 (1974). But the Corps' narrow defnition 
+did not last. It soon promulgated new, much broader def­
+nitions designed to reach the outer limits of Congress's com­
+merce power. See 42 Fed. Reg. 37144, and n. 2 (1977); 40 
+Fed. Reg. 31324–31325 (1975). 
+Eventually the EPA and Corps settled on materially iden­
+tical defnitions. See 45 Fed. Reg. 33424 (1980); 47 Fed. Reg. 
+31810–31811 (1982). These broad defnitions encompassed 
+“[a]ll . . . waters” that “could affect interstate or foreign com­
+merce.” 40 CFR § 230.3(s)(3) (2008). So long as the poten­
+tial for an interstate effect was present, the regulation ex­
+tended the CWA to, for example, “intrastate lakes, rivers, 
+streams (including intermittent streams), mudfats, sandfats, 
+wetlands, sloughs, prairie potholes, wet meadows, playa 
+lakes, or natural ponds.” Ibid. The agencies likewise took 
+an expansive view of the CWA's coverage of wetlands “adja­
+cent” to covered waters. § 230.3(s)(7). As noted, they de­
+fned “adjacent” to mean “bordering, contiguous, or neigh­
+boring” and clarifed that “adjacent” wetlands include those 
+that are separated from covered waters “by man-made dikes 
+or barriers, natural river berms, beach dunes, and the like.” 
+§ 230.3(b). They also specifed that “wetlands” is a technical 
+term encompassing “those areas that are inundated or satu­
+rated by surface or ground water at a frequency and duration 
+suffcient to support, and that under normal conditions do 
+support, a prevalence of vegetation typically adapted for 
+life in saturated soil conditions.” § 230.3(t). The Corps 
+released what would become a 143-page manual to guide of­
+
+Cite as: 598 U. S. 651 (2023) 
+665 
+Opinion of the Court 
+fcers when they determine whether property meets this 
+defnition.7 
+This Court frst construed the meaning of “the waters of 
+the United States” in United States v. Riverside Bayview 
+Homes, Inc., 474 U. S. 121 (1985). There, we were con­
+fronted with the Corps' assertion of authority under the 
+CWA over wetlands that “actually abut[ted] on a navigable 
+waterway.” Id., at 135. Although we expressed concern 
+that wetlands seemed to fall outside “traditional notions of 
+`waters,' ” we nonetheless deferred to the Corps, reason­
+ing that “the transition from water to solid ground is not-
+necessarily or even typically an abrupt one.” 
+Id., at 
+132–133. 
+The agencies responded to Riverside Bayview by expand­
+ing their interpretations even further. Most notably, they 
+issued the “migratory bird rule,” which extended jurisdiction 
+to any waters or wetlands that “are or would be used as [a] 
+habitat” by migratory birds or endangered species. See 53 
+Fed. Reg. 20765 (1988); 51 Fed. Reg. 41217 (1986). As the 
+Corps would later admit, “nearly all waters were jurisdic­
+tional under the migratory bird rule.” 8 
+In Solid Waste Agency of Northern Cook Cty. v. Army 
+Corps of Engineers, 531 U. S. 159 (2001) (SWANCC), this 
+Court rejected the migratory bird rule, which the Corps had 
+used to assert jurisdiction over several isolated ponds lo­
+cated wholly within the State of Illinois. Disagreeing with 
+the Corps' argument that ecological interests supported its 
+jurisdiction, we instead held that the CWA does not “ex­
+7 See Corps, Wetlands Delineation Manual (Tech. Rep. Y–87–1, 1987) 
+(Wetlands Delineation Manual); see also, e. g., Corps, Regional Supplement 
+to the Corps of Engineers Wetland Delineation Manual: Alaska Region 
+(Version 2.0) (ERDC/EL Tr–07–24, 2007). 
+8 GAO, Waters and Wetlands: Corps of Engineers Needs To Evaluate Its 
+District Offce Practices in Determining Jurisdiction 26 (GAO–04–297, 
+2004) (GAO Report). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+666 
+SACKETT v. EPA 
+Opinion of the Court 
+ten[d] to ponds that are not adjacent to open water.” Id., at 
+168 (emphasis deleted). 
+Days after our decision, the agencies issued guidance that 
+sought to minimize SWANCC's impact. They took the view 
+that this Court's holding was “strictly limited to waters that 
+are `nonnavigable, isolated, and intrastate' ” and that “feld 
+staff should continue to exercise CWA jurisdiction to the full 
+extent of their authority” for “any waters that fall outside of 
+that category.” 9 
+The agencies never defned exactly what 
+they regarded as the “full extent of their authority.” They 
+instead encouraged local feld agents to make decisions on a 
+case-by-case basis. 
+What emerged was a system of “vague” rules that de­
+pended on “locally developed practices.” GAO Report 26. 
+Deferring to the agencies' localized decisions, lower courts 
+blessed an array of expansive interpretations of the CWA's 
+reach. See, e. g., United States v. Deaton, 332 F. 3d 698, 702 
+(CA4 2003) (holding that a property owner violated the CWA 
+by piling soil near a ditch 32 miles from navigable waters). 
+Within a few years, the agencies had “interpreted their juris­
+diction over `the waters of the United States' to cover 270­
+to-300 million acres” of wetlands and “virtually any parcel of 
+land containing a channel or conduit . . . through which rain­
+water or drainage may occasionally or intermittently fow.” 
+Rapanos v. United States, 547 U. S. 715, 722 (2006) (plural­
+ity opinion). 
+It was against this backdrop that we granted review in 
+Rapanos v. United States. The lower court in the principal 
+case before us had held that the CWA covered wetlands near 
+ditches and drains that eventually emptied into navigable 
+waters at least 11 miles away, a theory that had supported 
+the petitioner's conviction in a related prosecution. Id., at 
+720, 729. Although we vacated that decision, no position 
+commanded a majority of the Court. Four Justices con­
+9 EPA & Corps, Memorandum, Supreme Court Ruling Concerning CWA 
+Jurisdiction Over Isolated Waters 3 (2001) (alteration omitted). 
+
+Cite as: 598 U. S. 651 (2023) 
+667 
+Opinion of the Court 
+cluded that the CWA's coverage did not extend beyond two 
+categories: first, certain relatively permanent bodies of 
+water connected to traditional interstate navigable waters 
+and, second, wetlands with such a close physical connection 
+to those waters that they were “as a practical matter indis­
+tinguishable from waters of the United States.” Id., at 742, 
+755 (emphasis deleted). Four Justices would have deferred 
+to the Government's determination that the wetlands at 
+issue were covered under the CWA. Id., at 788 (Stevens, J., 
+dissenting). Finally, one Justice concluded that jurisdiction 
+under the CWA requires a “signifcant nexus” between wet­
+lands and navigable waters and that such a nexus exists 
+where “the wetlands, either alone or in combination with 
+similarly situated lands in the region, signifcantly affect the 
+chemical, physical, and biological integrity” of those waters. 
+Id., at 779–780 (Kennedy, J., concurring in judgment). 
+In the decade following Rapanos, the EPA and the Corps 
+issued guidance documents that “recognized larger grey 
+areas and called for more fact-intensive individualized deter­
+minations in those grey areas.” 10 
+As discussed, they in­
+structed agency offcials to assert jurisdiction over wetlands 
+“adjacent” to non-navigable tributaries based on fact-specifc 
+determinations regarding the presence of a signifcant nexus. 
+2008 Guidance 8. The guidance further advised offcials to 
+make this determination by considering a lengthy list of hy­
+drological and ecological factors. Ibid. Echoing what they 
+had said about the migratory bird rule, the agencies later 
+admitted that “almost all waters and wetlands across the 
+country theoretically could be subject to a case-specifc juris­
+dictional determination” under this guidance. 80 Fed. Reg. 
+37056 (2015); see, e. g., Hawkes Co., 578 U. S., at 596 (explain­
+10 N. Parrillo, Federal Agency Guidance and the Power To Bind: An Em­
+pirical Study of Agencies and Industries, 36 Yale J. on Reg. 165, 231 (2019); 
+see 2007 Guidance 7–11; EPA & Corps, Clean Water Act Jurisdiction Fol­
+lowing the U. S. Supreme Court's Decision in Rapanos v. United States & 
+Carabell v. United States 8–12 (2008) (2008 Guidance). 
+Page Proof Pending Publication
+
+668 
+SACKETT v. EPA 
+Opinion of the Court 
+ing that the Corps found a signifcant nexus between wet­
+lands and a river “some 120 miles away”). 
+More recently, the agencies have engaged in a furry of 
+rulemaking defning “the waters of the United States.” In 
+a 2015 rule, they offered a muscular approach that would 
+subject “the vast majority of the nation's water features” to 
+a case-by-case jurisdictional analysis.11 
+Although the rule 
+listed a few examples of “waters” that were excluded from 
+regulation like “[p]uddles” and “swimming pools,” it categor­
+ically covered other waters and wetlands, including any 
+within 1,500 feet of interstate or traditional navigable wa­
+ters. 80 Fed. Reg. 37116–37117. And it subjected a wider 
+range of other waters, including any within 4,000 feet of indi­
+rect tributaries of interstate or traditional navigable waters, 
+to a case-specifc determination for signifcant nexus. Ibid. 
+The agencies repealed this sweeping rule in 2019. 84 Fed. 
+Reg. 56626. Shortly afterwards, they replaced it with a nar­
+rower defnition that limited jurisdiction to traditional navi­
+gable waters and their tributaries, lakes, and “adjacent” wet­
+lands. 85 Fed. Reg. 22340 (2020). They also narrowed the 
+defnition of “[a]djacent,” limiting it to wetlands that “[a]but” 
+covered waters, are fooded by those waters, or are sepa­
+rated from those waters by features like berms or barriers. 
+Ibid. This rule too did not last. After granting the EPA's 
+voluntary motion to remand, a District Court vacated the 
+rule. See Pascua Yaqui Tribe v. EPA, 557 F. Supp. 3d 949, 
+957 (D Ariz. 2021). 
+The agencies recently promulgated yet another rule at­
+tempting to defne waters of the United States. 88 Fed. 
+Reg. 3004 (2023) (to be codifed in 40 CFR § 120.2). Under 
+that broader rule, traditional navigable waters, interstate 
+waters, and the territorial seas, as well as their tributaries 
+and adjacent wetlands, are waters of the United States. 88 
+Fed. Reg. 3143. So are any “[i]ntrastate lakes and ponds, 
+11 EPA & Dept. of the Army, Economic Analysis of the EPA-Army Clean 
+Water Rule 11 (2015). 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+669 
+Opinion of the Court 
+streams, or wetlands” that either have a continuous surface 
+connection to categorically included waters or have a sig­
+nifcant nexus to interstate or traditional navigable waters. 
+Id., at 3006, 3143. Like the post-Rapanos guidance, the rule 
+states that a signifcant nexus requires consideration of a list 
+of open-ended factors. 88 Fed. Reg. 3006, 3144. Finally, 
+the rule returns to the broad pre-2020 defnition of “adja­
+cent.” Ibid.; see supra, at 664. Acknowledging that 
+“[f]ield work is often necessary to confrm the presence of a 
+wetland” under these defnitions, the rule instructs local 
+agents to continue using the Corps' Wetlands Delineation 
+Manual. 88 Fed. Reg. 3117. 
+B 
+With the beneft of a half century of practice under the 
+CWA, it is worth taking stock of where things stand. The 
+agencies maintain that the signifcant-nexus test has been 
+and remains suffcient to establish jurisdiction over “adja­
+cent” wetlands. And by the EPA's own admission, “almost 
+all waters and wetlands” are potentially susceptible to regu­
+lation under that test. 80 Fed. Reg. 37056. This puts many 
+property owners in a precarious position because it is “often 
+diffcult to determine whether a particular piece of property 
+contains waters of the United States.” Hawkes Co., 578 
+U. S., at 594; see 40 CFR § 230.3(t) (2008). Even if a prop­
+erty appears dry, application of the guidance in a complicated 
+manual ultimately decides whether it contains wetlands. 
+See 88 Fed. Reg. 3117; Wetlands Delineation Manual 84–85 
+(describing “not . . . atypical” examples of wetlands that peri­
+odically lack wetlands indicators); see also Hawkes Co. v. 
+United States Army Corps of Engineers, 782 F. 3d 994, 1003 
+(CA8 2015) (Kelly, J., concurring) (“This is a unique aspect of 
+the CWA; most laws do not require the hiring of ex­
+pert consultants to determine if they even apply to you or 
+your property”). And because the CWA can sweep broadly 
+enough to criminalize mundane activities like moving dirt, 
+this unchecked definition of “the waters of the United 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+670 
+SACKETT v. EPA 
+Opinion of the Court 
+States” means that a staggering array of landowners are at 
+risk of criminal prosecution or onerous civil penalties. 
+What are landowners to do if they want to build on their 
+property? The EPA recommends asking the Corps for a ju­
+risdictional determination, which is a written decision on 
+whether a particular site contains covered waters. Tr. of 
+Oral Arg. 86; see Corps, Regulatory Guidance Letter No. 16– 
+01, at 1 (2016) (RGL 16–01); 33 CFR §§ 320.1(a)(6), 331.2. 
+But the Corps maintains that it has no obligation to provide 
+jurisdictional determinations, RGL 16–01, at 2, and it has 
+already begun announcing exceptions to the legal effect of 
+some previous determinations, see 88 Fed. Reg. 3136. Even 
+if the Corps is willing to provide a jurisdictional determina­
+tion, a property owner may fnd it necessary to retain an 
+expensive expert consultant who is capable of putting to­
+gether a presentation that stands a chance of persuading the 
+Corps.12 
+And even then, a landowner's chances of success 
+are low, as the EPA admits that the Corps fnds jurisdiction 
+approximately 75% of the time. Tr. of Oral Arg. 110. 
+If the landowner is among the vast majority who receive 
+adverse jurisdictional determinations, what then? It would 
+be foolish to go ahead and build since the jurisdictional deter­
+mination might form evidence of culpability in a prosecution 
+or civil action. The jurisdictional determination could be 
+challenged in court, but only after the delay and expense 
+required to exhaust the administrative appeals process. See 
+33 CFR § 331.7(d). And once in court, the landowner would 
+face an uphill battle under the deferential standards of re­
+view that the agencies enjoy. See 5 U. S. C. § 706. Another 
+alternative would be simply to acquiesce and seek a permit 
+12 See 88 Fed. Reg. 3134; Corps, Questions and Answers for Rapanos 
+and Carabell Decision 16 (2007); J. Finkle, Jurisdictional Determinations: 
+An Important Battlefeld in the Clean Water Act Fight, 43 Ecology L. Q. 
+301, 314–315 (2016); K. Gould, Drowning in Wetlands Jurisdictional Deter­
+mination Process: Implementation of Rapanos v. United States, 30 U. Ark. 
+Little Rock L. Rev. 413, 440 (2008). 
+
+Cite as: 598 U. S. 651 (2023) 
+671 
+Opinion of the Court 
+from the Corps. But that process can take years and cost 
+an exorbitant amount of money. Many landowners faced 
+with this unappetizing menu of options would simply choose 
+to build nothing. 
+III 
+With this history in mind, we now consider the extent of 
+the CWA's geographical reach. 
+A 
+We start, as we always do, with the text of the CWA. 
+Bartenwerfer v. Buckley, 598 U. S. 69, 74 (2023). As noted, 
+the Act applies to “navigable waters,” which had a well-
+established meaning at the time of the CWA's enactment. 
+But the CWA complicates matters by proceeding to defne 
+“navigable waters” as “the waters of the United States,” 
+§ 1362(7), which was decidedly not a well-known term of 
+art. This frustrating drafting choice has led to decades of 
+litigation, but we must try to make sense of the terms Con­
+gress chose to adopt. And for the reasons explained below, 
+we conclude that the Rapanos plurality was correct: the 
+CWA's use of “waters” encompasses “only those relatively 
+permanent, standing or continuously fowing bodies of water 
+`forming geographic[al] features' that are described in or­
+dinary parlance as `streams, oceans, rivers, and lakes.' ” 547 
+U. S., at 739 (quoting Webster's New International Diction­
+ary 2882 (2d ed. 1954) (Webster's Second); original alter­
+ations omitted). 
+This reading follows from the CWA's deliberate use of the 
+plural term “waters.” See 547 U. S., at 732–733. That 
+term typically refers to bodies of water like those listed 
+above. See, e. g., Webster's Second 2882; Black's Law Dic­
+tionary 1426 (5th ed. 1979) (“especially in the plural, [water] 
+may designate a body of water, such as a river, a lake, or an 
+ocean, or an aggregate of such bodies of water, as in the 
+phrases `foreign waters,' `waters of the United States,' and 
+the like” (emphasis added)); Random House Dictionary of the 
+Page Proof Pending Publication
+
+672 
+SACKETT v. EPA 
+Opinion of the Court 
+English Language 2146 (2d ed. 1987) (Random House Dic­
+tionary) (defning “waters” as “a. fowing water, or water 
+moving in waves: The river's mighty waters. b. the sea or 
+seas bordering a particular country or continent or located 
+in a particular part of the world” (emphasis deleted)). This 
+meaning is hard to reconcile with classifying “ ` “lands,” wet 
+or otherwise, as “waters.” ' ” Rapanos, 547 U. S., at 740 (plu­
+rality opinion) (quoting Riverside Bayview, 474 U. S., at 132). 
+This reading also helps to align the meaning of “the waters 
+of the United States” with the term it is defning: “navigable 
+waters.” See Bond v. United States, 572 U. S. 844, 861 
+(2014) (“In settling on a fair reading of a statute, it is not 
+unusual to consider the ordinary meaning of a defned term, 
+particularly when there is dissonance between that ordinary 
+meaning and the reach of the defnition”). Although we 
+have acknowledged that the CWA extends to more than tra­
+ditional navigable waters, we have refused to read “naviga­
+ble” out of the statute, holding that it at least shows that 
+Congress was focused on “its traditional jurisdiction over 
+waters that were or had been navigable in fact or which 
+could reasonably be so made.” SWANCC, 531 U. S., at 172; 
+see also Appalachian Elec., 311 U. S., at 406–407; The Dan­
+iel Ball, 10 Wall., at 563. At a minimum, then, the use of 
+“navigable” signals that the defnition principally refers to 
+bodies of navigable water like rivers, lakes, and oceans. See 
+Rapanos, 547 U. S., at 734 (plurality opinion). 
+More broadly, this reading accords with how Congress has 
+employed the term “waters” elsewhere in the CWA and in 
+other laws. The CWA repeatedly uses “waters” in contexts 
+that confrm the term refers to bodies of open water. See 
+33 U. S. C. §1267(i)(2)(D) (“the waters of the Chesapeake 
+Bay”); §1268(a)(3)(I) (“the open waters of each of the Great 
+Lakes”); § 1324(d)(4)(B)(ii) (“lakes and other surface wa­
+ters”); § 1330(g)(4)(C)(vii) (“estuarine waters”); § 1343(c)(1) 
+(“the waters of the territorial seas, the contiguous zone, and 
+the oceans”); §§ 1346(a)(1), 1375a(a) (“coastal recreation wa­
+ters”); § 1370 (state “boundary waters”). The use of “wa­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+673 
+Opinion of the Court 
+ters” elsewhere in the U. S. Code likewise correlates to riv­
+ers, lakes, and oceans.13 
+Statutory history points in the same direction. The 
+CWA's predecessor statute covered “interstate or navigable 
+waters” and defned “interstate waters” as “all rivers, lakes, 
+and other waters that fow across or form a part of State 
+boundaries.” 33 U. S. C. §§ 1160(a), 1173(e) (1970 ed.) (em­
+phasis added); see also Rivers and Harbors Appropriations 
+Act of 1899, 30 Stat. 1151 (codifed, as amended, at 33 U. S. C. 
+§ 403) (prohibiting unauthorized obstructions “to the naviga­
+ble capacity of any of the waters of the United States”). 
+This Court has understood the CWA's use of “waters” in 
+the same way. Even as Riverside Bayview grappled with 
+whether adjacent wetlands could fall within the CWA's 
+coverage, it acknowledged that wetlands are not included 
+in “traditional notions of `waters.' ” 474 U. S., at 133. It 
+explained that the term conventionally refers to “hydro­
+graphic features” like “rivers” and “streams.” Id., at 131. 
+SWANCC went even further, repeatedly describing the “wa­
+ters” covered by the Act as “open water” and suggesting 
+that “the waters of the United States” principally refers to 
+traditional navigable waters. 531 U. S., at 168–169, 172. 
+That our CWA decisions operated under this assumption is 
+unsurprising. Ever since Gibbons v. Ogden, 9 Wheat. 1 
+(1824), this Court has used “waters of the United States” to 
+refer to similar bodies of water, almost always in relation to 
+ships. Id., at 218 (discussing a vessel's “conduct in the wa­
+ters of the United States”).14 
+13 See, e. g., 16 U. S. C. § 745 (“the waters of the seacoast . . . the waters 
+of the lakes”); § 4701(a)(7) (“waters of the Chesapeake Bay”); 33 U. S. C. 
+§ 4 (“the waters of the Mississippi River and its tributaries”); 43 U. S. C. 
+§390h–8(a) (“the waters of Lake Cheraw, Colorado . . . the waters of the 
+Arkansas River”); 46 U. S. C. §70051 (allowing the Coast Guard to take 
+control of particular vessels during an emergency in order to “prevent 
+damage or injury to any harbor or waters of the United States”). 
+14 See, e. g., United States v. Alvarez-Machain, 504 U. S. 655, 661, n. 7 
+(1992) (discussing a treaty “to allow British passenger ships to carry liquor 
+while in the waters of the United States”); Kent v. Dulles, 357 U. S. 116, 
+Page Proof Pending Publication
+
+674 
+SACKETT v. EPA 
+Opinion of the Court 
+The EPA argues that “waters” is “naturally read to en­
+compass wetlands” because the “presence of water is `uni­
+versally regarded as the most basic feature of wetlands.' ” 
+Brief for Respondents 19. But that reading proves too 
+much. Consider puddles, which are also defned by the ordi­
+nary presence of water even though few would describe them 
+as “waters.” This argument is also tough to square with 
+SWANCC, which held that the Act does not cover isolated 
+ponds, see 531 U. S., at 171, or Riverside Bayview, which 
+would have had no need to focus so extensively on the adja­
+cency of wetlands to covered waters if the EPA's reading 
+were correct, see 474 U. S., at 131–135, and n. 8. Finally, it 
+is also instructive that the CWA expressly “protect[s] the 
+primary responsibilities and rights of States to prevent, re­
+duce, and eliminate pollution” and “to plan the development 
+and use . . . of land and water resources.” § 1251(b). It is 
+hard to see how the States' role in regulating water re­
+sources would remain “primary” if the EPA had jurisdic­
+tion over anything defned by the presence of water. See 
+County of Maui v. Hawaii Wildlife Fund, 590 U. S. –––, ––– 
+(2020); Rapanos, 547 U. S., at 737 (plurality opinion). 
+B 
+Although the ordinary meaning of “waters” in § 1362(7) 
+might seem to exclude all wetlands, we do not view that pro­
+vision in isolation. The meaning of a word “may only be­
+come evident when placed in context,” FDA v. Brown & 
+123 (1958) (discussing a prohibition on boarding “vessels of the enemy on 
+waters of the United States”); New Jersey v. New York City, 290 U. S. 237, 
+240 (1933) (enjoining employees of New York City from dumping garbage 
+“into the ocean, or waters of the United States, off the coast of New Jer­
+sey”); Cunard S. S. Co. v. Mellon, 262 U. S. 100, 127 (1923) (holding that 
+the National Prohibition Act did not apply to “merchant ships when out­
+side the waters of the United States”); Keck v. United States, 172 U. S. 
+434, 444–445 (1899) (holding that concealing imported goods on vessels “at 
+the time of entering the waters of the United States,” without more, did 
+not constitute smuggling). 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+675 
+Opinion of the Court 
+Williamson Tobacco Corp., 529 U. S. 120, 132 (2000), and 
+statutory context shows that some wetlands qualify as “wa­
+ters of the United States.” 
+In 1977, Congress amended the CWA and added 
+§ 1344(g)(1), which authorizes States to apply to the EPA for 
+permission to administer programs to issue permits for the 
+discharge of dredged or fll material into some bodies of 
+water. In simplifed terms, the provision specifes that state 
+permitting programs may regulate discharges into (1) any 
+waters of the United States, (2) except for traditional naviga­
+ble waters, (3) “including wetlands adjacent thereto.” 15 
+When this convoluted formulation is parsed, it tells us that 
+at least some wetlands must qualify as “waters of the United 
+States.” The provision begins with a broad category, “the 
+waters of the United States,” which we may call category A. 
+The provision provides that States may permit discharges 
+into these waters, but it then qualifes that States cannot 
+permit discharges into a subcategory of A: traditional navi­
+gable waters (category B). Finally, it states that a third cat­
+egory (category C), consisting of wetlands “adjacent” to 
+traditional navigable waters, is “includ[ed]” within B. Thus, 
+States may permit discharges into A minus B, which in­
+cludes C. If C (adjacent wetlands) were not part of A (“the 
+waters of the United States”) and therefore subject to regu­
+lation under the CWA, there would be no point in excluding 
+15 This provision states in relevant part: “The Governor of any State 
+desiring to administer its own individual and general permit program for 
+the discharge of dredged or fll material into the navigable waters (other 
+than those waters which are presently used, or are susceptible to use in 
+their natural condition or by reasonable improvement as a means to trans­
+port interstate or foreign commerce shoreward to their ordinary high 
+water mark, including all waters which are subject to the ebb and fow of 
+the tide shoreward to their mean high water mark, or mean higher high 
+water mark on the west coast, including wetlands adjacent thereto) within 
+its jurisdiction may submit to the Administrator a full and complete de­
+scription of the program it proposes to establish and administer under 
+State law or under an interstate compact.” 33 U. S. C. § 1344(g)(1). 
+Page Proof Pending Publication
+
+676 
+SACKETT v. EPA 
+Opinion of the Court 
+them from that category. See Riverside Bayview, 474 U. S., 
+at 138, n. 11 (recognizing that § 1344(g) “at least suggest[s] 
+strongly that the term `waters' as used in the Act does not 
+necessarily exclude `wetlands' ”); Rapanos, 547 U. S., at 768 
+(opinion of Kennedy, J.). Thus, § 1344(g)(1) presumes that 
+certain wetlands constitute “waters of the United States.” 
+But what wetlands does the CWA regulate? Section 
+1344(g)(1) cannot answer that question alone because it is 
+not the operative provision that defnes the Act's reach. See 
+Riverside Bayview, 474 U. S., at 138, n. 11. Instead, we 
+must harmonize the reference to adjacent wetlands in 
+§1344(g)(1) with “the waters of the United States,” §1362(7), 
+which is the actual term we are tasked with interpreting. 
+The formulation discussed above tells us how: because the 
+adjacent wetlands in §1344(g)(1) are “includ[ed]” within “the 
+waters of the United States,” these wetlands must qualify as 
+“waters of the United States” in their own right. In other 
+words, they must be indistinguishably part of a body of 
+water that itself constitutes “waters” under the CWA. See 
+supra, at 671. 
+This understanding is consistent with § 1344(g)(1)'s use of 
+“adjacent.” Dictionaries tell us that the term “adjacent” 
+may mean either “contiguous” or “near.” Random House 
+Dictionary 25; see Webster's Third New International Dic­
+tionary 26 (1976); see also Oxford American Dictionary & 
+Thesaurus 16 (2d ed. 2009) (listing “adjoining” and “neigh­
+boring” as synonyms of “adjacent”). But “construing statu­
+tory language is not merely an exercise in ascertaining `the 
+outer limits of a word's defnitional possibilities,' ” FCC v. 
+AT&T Inc., 562 U. S. 397, 407 (2011) (alterations omitted), 
+and here, “only one . . . meanin[g] produces a substantive 
+effect that is compatible with the rest of the law,” United 
+Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, 
+Ltd., 484 U. S. 365, 371 (1988). Wetlands that are separate 
+from traditional navigable waters cannot be considered part 
+of those waters, even if they are located nearby. 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+677 
+Opinion of the Court 
+In addition, it would be odd indeed if Congress had tucked 
+an important expansion to the reach of the CWA into con­
+voluted language in a relatively obscure provision concern­
+ing state permitting programs. We have often remarked 
+that Congress does not “hide elephants in mouseholes” by 
+“alter[ing] the fundamental details of a regulatory scheme in 
+vague terms or ancillary provisions.” Whitman v. Ameri­
+can Trucking Assns., Inc., 531 U. S. 457, 468 (2001). We 
+cannot agree with such an implausible interpretation here. 
+If § 1344(g)(1) were read to mean that the CWA applies 
+to wetlands that are not indistinguishably part of otherwise 
+covered “waters of the United States,” see supra, at 671, it 
+would effectively amend and substantially broaden § 1362(7) 
+to defne “navigable waters” as “waters of the United States 
+and adjacent wetlands.” But § 1344(g)(1)'s use of the term 
+“including” makes clear that it does not purport to do—and 
+in fact, does not do—any such thing. See National Assn. 
+of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 
+662–664, and n. 8 (2007) (recognizing that implied amend­
+ments require “ `clear and manifest' ” evidence of congres­
+sional intent). It merely refects Congress's assumption 
+that certain “adjacent” wetlands are part of “waters of the 
+United States.” 
+This is the thrust of observations in decisions going all the 
+way back to Riverside Bayview. In that case, we deferred 
+to the Corps' decision to regulate wetlands actually abut­
+ting a navigable waterway, but we recognized “the inherent 
+diffculties of defning precise bounds to regulable waters.” 
+474 U. S., at 134; see also id., at 132 (noting that “the transi­
+tion from water to solid ground is not necessarily or even 
+typically an abrupt one” due to semi-aquatic features like 
+shallows and swamps). In such a situation, we concluded, 
+the Corps could reasonably determine that wetlands “adjoin­
+ing bodies of water” were part of those waters. Id., at 135, 
+and n. 9; see also SWANCC, 531 U. S., at 167 (recognizing 
+that Riverside Bayview “held that the Corps had . . . juris­
+Page Proof Pending Publication
+
+678 
+SACKETT v. EPA 
+Opinion of the Court 
+diction over wetlands that actually abutted on a navigable 
+waterway”). 
+In Rapanos, the plurality spelled out clearly when adja­
+cent wetlands are part of covered waters. It explained that 
+“waters” may fairly be read to include only those wetlands 
+that are “as a practical matter indistinguishable from waters 
+of the United States,” such that it is “diffcult to determine 
+where the `water' ends and the `wetland' begins.” 547 U. S., 
+at 742, 755 (emphasis deleted). That occurs when wetlands 
+have “a continuous surface connection to bodies that are `wa­
+ters of the United States' in their own right, so that there is 
+no clear demarcation between `waters' and wetlands.” Id., 
+at 742; cf. 33 U. S. C. § 2802(5) (defning “coastal waters” to 
+include wetlands “having unimpaired connection with the 
+open sea up to the head of tidal infuence”). We agree with 
+this formulation of when wetlands are part of “the waters of 
+the United States.” We also acknowledge that temporary 
+interruptions in surface connection may sometimes occur be­
+cause of phenomena like low tides or dry spells.16 
+In sum, we hold that the CWA extends to only those wet­
+lands that are “as a practical matter indistinguishable from 
+waters of the United States.” Rapanos, 547 U. S., at 755 
+(plurality opinion) (emphasis deleted). This requires the 
+party asserting jurisdiction over adjacent wetlands to estab­
+lish “frst, that the adjacent [body of water constitutes] . . . 
+`water[s] of the United States,' (i. e., a relatively permanent 
+body of water connected to traditional interstate navigable 
+waters); and second, that the wetland has a continuous sur­
+face connection with that water, making it diffcult to deter­
+16 Although a barrier separating a wetland from a water of the United 
+States would ordinarily remove that wetland from federal jurisdiction, a 
+landowner cannot carve out wetlands from federal jurisdiction by illegally 
+constructing a barrier on wetlands otherwise covered by the CWA. 
+Whenever the EPA can exercise its statutory authority to order a barri­
+er's removal because it violates the Act, see §§ 1319(a)–(b), that unlawful 
+barrier poses no bar to its jurisdiction. 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+679 
+Opinion of the Court 
+mine where the `water' ends and the `wetland' begins.” Id., 
+at 742. 
+IV 
+The EPA resists this reading of § 1362(7) and instead asks 
+us to defer to its understanding of the CWA's jurisdictional 
+reach, as set out in its most recent rule defning “the waters 
+of the United States.” See 88 Fed. Reg. 3004. This rule, 
+as noted, provides that “adjacent wetlands are covered by 
+the Act if they `possess a “signifcant nexus” to' traditional 
+navigable waters.” Brief for Respondents 32 (quoting Rap­
+anos, 547 U. S., at 759 (opinion of Kennedy, J.)); see 88 Fed. 
+Reg. 3143. And according to the EPA, wetlands are “adja­
+cent” when they are “neighboring” to covered waters, even 
+if they are separated from those waters by dry land. Brief 
+for Respondents 20; 88 Fed. Reg. 3144. 
+A 
+For reasons already explained, this interpretation is incon­
+sistent with the text and structure of the CWA. Beyond 
+that, it clashes with “background principles of construction” 
+that apply to the interpretation of the relevant statutory pro­
+visions. Bond, 572 U. S., at 857. Under those presump­
+tions, the EPA must provide clear evidence that it is author­
+ized to regulate in the manner it proposes. 
+1 
+First, this Court “require[s] Congress to enact exceedingly 
+clear language if it wishes to signifcantly alter the balance 
+between federal and state power and the power of the 
+Government over private property.” United States Forest 
+Service v. Cowpasture River Preservation Assn., 590 U. S. 
+–––, ––– – ––– (2020); see also Bond, 572 U. S., at 858. Regu­
+lation of land and water use lies at the core of traditional 
+state authority. See, e. g., SWANCC, 531 U. S., at 174 (citing 
+Hess v. Port Authority Trans-Hudson Corporation, 513 
+U. S. 30, 44 (1994)); Tarrant Regional Water Dist. v. Herr­
+Page Proof Pending Publication
+
+680 
+SACKETT v. EPA 
+Opinion of the Court 
+mann, 569 U. S. 614, 631 (2013). An overly broad interpre­
+tation of the CWA's reach would impinge on this authority. 
+The area covered by wetlands alone is vast—greater than 
+the combined surface area of California and Texas. And the 
+scope of the EPA's conception of “the waters of the United 
+States” is truly staggering when this vast territory is sup­
+plemented by all the additional area, some of which is gener­
+ally dry, over which the Agency asserts jurisdiction. Par­
+ticularly given the CWA's express policy to “preserve” the 
+States' “primary” authority over land and water use, 
+§ 1251(b), this Court has required a clear statement from 
+Congress when determining the scope of “the waters of the 
+United States.” SWANCC, 531 U. S., at 174; accord, Ra­
+panos, 547 U. S., at 738 (plurality opinion). 
+The EPA, however, offers only a passing attempt to square 
+its interpretation with the text of § 1362(7), and its “signif­
+cant nexus” theory is particularly implausible. It suggests 
+that the meaning of “the waters of the United States” is so 
+“broad and unqualifed” that, if viewed in isolation, it would 
+extend to all water in the United States. Brief for Respond­
+ents 32. The EPA thus turns to the “signifcant nexus” test 
+in order to reduce the clash between its understanding of 
+“the waters of the United States” and the term defned by 
+that phrase, i. e., “navigable waters.” As discussed, how­
+ever, the meaning of “waters” is more limited than the EPA 
+believes. See supra, at 671. And, in any event, the CWA 
+never mentions the “signifcant nexus” test, so the EPA has 
+no statutory basis to impose it. See Rapanos, 547 U. S., at 
+755–756 (plurality opinion). 
+2 
+Second, the EPA's interpretation gives rise to serious 
+vagueness concerns in light of the CWA's criminal penalties. 
+Due process requires Congress to defne penal statutes 
+“ `with suffcient defniteness that ordinary people can under­
+stand what conduct is prohibited' ” and “ `in a manner that 
+does not encourage arbitrary and discriminatory enforce­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+681 
+Opinion of the Court 
+ment.' ” McDonnell v. United States, 579 U. S. 550, 576 
+(2016) (quoting Skilling v. United States, 561 U. S. 358, 402– 
+403 (2010)). Yet the meaning of “waters of the United 
+States” under the EPA's interpretation remains “hopelessly 
+indeterminate.” Sackett, 566 U. S., at 133 (Alito, J., concur­
+ring); accord, Hawkes Co., 578 U. S., at 602 (opinion of Ken­
+nedy, J.). 
+The EPA contends that the only thing preventing it from 
+interpreting “waters of the United States” to “conceivably 
+cover literally every body of water in the country” is the 
+signifcant-nexus test. Tr. of Oral Arg. 70–71; accord, Brief 
+for Respondents 32. But the boundary between a “signif­
+cant” and an insignifcant nexus is far from clear. And to 
+add to the uncertainty, the test introduces another vague 
+concept—“similarly situated” waters—and then assesses the 
+aggregate effect of that group based on a variety of open-
+ended factors that evolve as scientific understandings 
+change. This freewheeling inquiry provides little notice to 
+landowners of their obligations under the CWA. Facing se­
+vere criminal sanctions for even negligent violations, prop­
+erty owners are “left `to feel their way on a case-by-case 
+basis.' ” Sackett, 566 U. S., at 124 (quoting Rapanos, 547 
+U. S., at 758 (Roberts, C. J., concurring)). Where a penal 
+statute could sweep so broadly as to render criminal a host 
+of what might otherwise be considered ordinary activities, 
+we have been wary about going beyond what “Congress cer­
+tainly intended the statute to cover.” Skilling, 561 U. S., 
+at 404. 
+Under these two background principles, the judicial task 
+when interpreting “the waters of the United States” is to 
+ascertain whether clear congressional authorization exists 
+for the EPA's claimed power. The EPA's interpretation falls 
+far short of that standard. 
+B 
+While mustering only a weak textual argument, the EPA 
+justifes its position on two other grounds. It primarily 
+Page Proof Pending Publication
+
+682 
+SACKETT v. EPA 
+Opinion of the Court 
+claims that Congress implicitly ratifed its interpretation of 
+“adjacent” wetlands when it adopted § 1344(g)(1). Thus, it 
+argues that “waters of the United States” covers any wet­
+lands that are “bordering, contiguous, or neighboring” to 
+covered waters. 88 Fed. Reg. 3143. The principal opinion 
+concurring in the judgment adopts the same position. See 
+post, at 723–725 (Kavanaugh, J., concurring in judgment). 
+The EPA notes that the Corps had promulgated regulations 
+adopting that interpretation before Congress amended the 
+CWA in 1977 to include the reference to “adjacent” wetlands 
+in § 1344(g)(1). See 42 Fed. Reg. 37144. This term, the 
+EPA contends, was “ ` “obviously transplanted from” ' ” the 
+Corps' regulations and thus incorporates the same defnition. 
+Brief for Respondents 22 (quoting Taggart v. Lorenzen, 587 
+U. S. –––, ––– (2019)). 
+This argument fails for at least three reasons. First, as 
+we have explained, the text of §§ 1362(7) and 1344(g)(1) 
+shows that “adjacent” cannot include wetlands that are not 
+part of covered “waters.” See supra, at 678–679. 
+Second, this ratifcation theory cannot be reconciled with 
+our cases. We have repeatedly recognized that § 1344(g)(1) 
+“ `does not conclusively determine the construction to be 
+placed on . . . the relevant defnition of “navigable waters.” ' ” 
+SWANCC, 531 U. S., at 171 (quoting Riverside Bayview, 474 
+U. S., at 138, n. 11); accord, Rapanos, 547 U. S., at 747–748, 
+n. 12 (plurality opinion). Additionally, SWANCC rejected 
+the closely analogous argument that Congress ratifed the 
+Corps' defnition of “waters of the United States” by includ­
+ing “ `other . . . waters' ” in § 1344(g)(1). 531 U. S., at 168– 
+171. And yet, the EPA's argument would require us to hold 
+that § 1344(g)(1) actually did amend the defnition of “navi­
+gable waters” precisely for the reasons we rejected in 
+SWANCC. 
+Third, the EPA cannot provide the sort of “overwhelming 
+evidence of acquiescence” necessary to support its argument 
+in the face of Congress's failure to amend § 1362(7). Id., at 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+683 
+Opinion of the Court 
+169–170, n. 5. We will infer that a term was “ `transplanted 
+from another legal source' . . . only when a term's meaning 
+was `well-settled' before the transplantation.” Kemp v. 
+United States, 596 U. S. –––, ––– – ––– (2022). Far from 
+being well settled, the Corps' defnition was promulgated 
+mere months before the CWA became law, and when the 
+Corps adopted that defnition, it candidly acknowledged the 
+“rapidly changing nature of [its] regulatory programs.” 42 
+Fed. Reg. 37122. Tellingly, even the EPA would not adopt 
+that defnition for several more years. See 45 Fed. Reg. 
+85345 (1980). This situation is a far cry from any in which 
+we have found ratifcation. See, e. g., George v. McDonough, 
+596 U. S. –––, ––– (2022) (fnding ratifcation when “Congress 
+used an unusual term that had a long regulatory history in 
+[the] very [regulatory] context” at issue). 
+The EPA also advances various policy arguments about 
+the ecological consequences of a narrower defnition of adja­
+cent. But the CWA does not defne the EPA's jurisdiction 
+based on ecological importance, and we cannot redraw the 
+Act's allocation of authority. See Rapanos, 547 U. S., at 756 
+(plurality opinion). “The Clean Water Act anticipates a 
+partnership between the States and the Federal Govern­
+ment.” Arkansas v. Oklahoma, 503 U. S. 91, 101 (1992). 
+States can and will continue to exercise their primary au­
+thority to combat water pollution by regulating land and 
+water use. See, e. g., Brief for Farm Bureau of Arkansas 
+et al. as Amici Curiae 17–27. 
+V 
+Nothing in the separate opinions fled by Justice Kava­
+naugh and Justice Kagan undermines our analysis. Jus­
+tice Kavanaugh claims that we have “rewrit[ten]” the 
+CWA, post, at 725 (opinion concurring in judgment), and Jus­
+tice Kagan levels similar charges, post, at 712–713 (opinion 
+concurring in judgment). These arguments are more than 
+unfounded. We have analyzed the statutory language in 
+
+684 
+SACKETT v. EPA 
+Thomas, J., concurring 
+detail, but the separate opinions pay no attention whatsoever 
+to § 1362(7), the key statutory provision that limits the 
+CWA's geographic reach to “the waters of the United 
+States.” Thus, neither separate opinion even attempts to 
+explain how the wetlands included in their interpretation fall 
+within a fair reading of “waters.” Textualist arguments 
+that ignore the operative text cannot be taken seriously. 
+VI 
+In sum, we hold that the CWA extends to only those “wet­
+lands with a continuous surface connection to bodies that are 
+`waters of the United States' in their own right,” so that they 
+are “indistinguishable” from those waters. Rapanos, 547 
+U. S., at 742, 755 (plurality opinion) (emphasis deleted); see 
+supra, at 678–679. This holding compels reversal here. 
+The wetlands on the Sacketts' property are distinguishable 
+from any possibly covered waters. 
+*
+*
+* 
+We reverse the judgment of the United States Court of 
+Appeals for the Ninth Circuit and remand the case for fur­
+ther proceedings consistent with this opinion. 
+It is so ordered. 
+Justice Thomas, with whom Justice Gorsuch joins, 
+concurring. 
+I join the Court's opinion in full. The Clean Water Act 
+(CWA) confnes the Federal Government's jurisdiction to 
+“ `navigable waters,' ” defned as “the waters of the United 
+States.” 33 U. S. C. §§ 1311(a), 1362(7), (12). And the Court 
+correctly holds that the term “waters” reaches “ `only those 
+relatively permanent, standing or continuously fowing bod­
+ies of water “forming geographic[al] features” that are de­
+scribed in ordinary parlance as “streams, oceans, rivers, and 
+lakes.” ' ” Ante, at 671 (quoting Rapanos v. United States, 
+547 U. S. 715, 739 (2006) (plurality opinion)). It also cor­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+685 
+Thomas, J., concurring 
+rectly holds that for a wetland to fall within this defnition, 
+it must share a “ `continuous surface connection to bodies 
+that are “waters of the United States” in their own right' ” 
+such that “ `there is no clear demarcation between “waters” 
+and wetlands.' ” Ante, at 678 (quoting Rapanos, 547 U. S., 
+at 742 (plurality opinion)). 
+However, like the Rapanos plurality before it, the Court 
+focuses only on the term “waters”; it does not determine the 
+extent to which the CWA's other jurisdictional terms—“navi­
+gable” and “of the United States”—limit the reach of the 
+statute. Ante, at 671–674; Rapanos, 547 U. S., at 731 (plu­
+rality opinion). I write separately to pick up where the 
+Court leaves off. 
+I 
+The CWA's jurisdictional terms have a long pedigree and 
+are bound up with Congress' traditional authority over the 
+channels of interstate commerce. Solid Waste Agency of 
+Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 
+159, 168, and n. 3, 172, 173–174 (2001) (SWANCC). That tra­
+ditional authority was limited in two ways. First, the water 
+had to be capable of being used as a highway for interstate 
+or foreign commerce. Second, Congress could regulate such 
+waters only for purposes of their navigability—by, for exam­
+ple, regulating obstructions hindering navigable capacity. 
+By the time of the CWA's enactment, the New Deal era argu­
+ably had relaxed the second limitation; Congress could regu­
+late navigable waters for a wider range of purposes. But, 
+critically, the statutory terms “navigable waters,” “navigable 
+waters of the United States,” and “waters of the United 
+States” were still understood as invoking only Congress' au­
+thority over waters that are, were, or could be used as high­
+ways of interstate or foreign commerce. The CWA was 
+enacted, and must be understood, against that key backdrop. 
+A 
+As the Court correctly states, “land and water use lies at 
+the core of traditional state authority.” Ante, at 679; see 
+Page Proof Pending Publication
+
+686 
+SACKETT v. EPA 
+Thomas, J., concurring 
+also ante, at 659. Prior to Independence, the Crown pos­
+sessed sovereignty over navigable waters in the Colonies, 
+sometimes held in trust by colonial authorities. See R. 
+Adler, The Ancient Mariner of Constitutional Law: The His­
+torical, Yet Declining Role of Navigability, 90 Wash. 
+U. L. Rev. 1643, 1656–1659 (2013); R. Walston, The Federal 
+Commerce and Navigation Powers: Solid Waste Agency of 
+Northern Cook County's Undecided Constitutional Issue, 42 
+Santa Clara L. Rev. 699, 721 (2002) (Walston). Upon Inde­
+pendence, this sovereignty was transferred to each of the 13 
+fully sovereign States. See Martin v. Lessee of Waddell, 16 
+Pet. 367, 410 (1842) (“[W]hen the Revolution took place, the 
+people of each state became themselves sovereign; and in 
+that character hold the absolute right to all their navigable 
+waters and the soils under them for their own common use, 
+subject only to the rights since surrendered by the Constitu­
+tion to the general government”). Thus, today, States enjoy 
+primary sovereignty over their waters, including navigable 
+waters—stemming either from their status as independent 
+sovereigns following Independence, ibid., or their later ad­
+mission to the Union on an equal footing with the original 
+States, see Lessee of Pollard v. Hagan, 3 How. 212, 230 (1845) 
+(“The shores of navigable waters, and the soils under them, 
+were not granted by the Constitution to the United States, 
+but were reserved to the states respectively. . . . The new 
+states have the same rights, sovereignty, and jurisdiction 
+over this subject as the original states”); see also M. Starr, 
+Navigable Waters of the United States—State and National 
+Control, 35 Harv. L. Rev. 154, 169–170 (1921). The Federal 
+Government therefore possesses no authority over navigable 
+waters except that granted by the Constitution. 
+The Federal Government's authority over certain naviga­
+ble waters is granted and limited by the Commerce Clause, 
+which grants Congress power to “regulate Commerce with 
+foreign Nations, and among the several States, and with the 
+Indian Tribes.” Art. I, § 8, cl. 3. From the beginning, it 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+687 
+Thomas, J., concurring 
+was understood that “[t]he power to regulate commerce, in­
+cludes the power to regulate navigation,” but only “as con­
+nected with the commerce with foreign nations, and among 
+the states.” United States v. Coombs, 12 Pet. 72, 78 (1838) 
+(Story, J., for the Court); accord, Gibbons v. Ogden, 9 Wheat. 
+1, 190 (1824) (“All America understands . . . the word `com­
+merce,' to comprehend navigation. It was so understood, 
+and must have been so understood, when the constitution 
+was framed”); see also R. Barnett, The Original Meaning of 
+the Commerce Clause, 68 U. Chi. L. Rev. 101, 125–126 (2001) 
+(Barnett); R. Natelson, The Legal Meaning of “Commerce” 
+in the Commerce Clause, 80 St. John's L. Rev. 789, 807–810 
+(2006). In fact, “shipping . . . was at that time the indis­
+pensable means for the movement of goods.” Barnett 123. 
+The Commerce Clause thus vests Congress with a limited 
+authority over what we now call the “channels of inter­
+state commerce.” United States v. Lopez, 514 U. S. 549, 
+558–559 (1995); see also American Trucking Assns., Inc. v. 
+Los Angeles, 569 U. S. 641, 656–657 (2013) (Thomas, J., 
+concurring). 
+This federal authority, however, does not displace States' 
+traditional sovereignty over their waters. “The power to 
+regulate commerce comprehends the control for that pur­
+pose, and to the extent necessary, of all the navigable waters 
+of the United States which are accessible from a State other 
+than those in which they lie.” Gilman v. Philadelphia, 3 
+Wall. 713, 724–725 (1866) (emphasis added). And, tradition­
+ally, this limited authority was confned to regulation of the 
+channels of interstate commerce themselves. Corfeld v. 
+Coryell, 6 F. Cas. 546, 550–551 (No. 3,230) (CC ED Pa. 1823) 
+(Washington, J., for the Court). It encompassed only “the 
+power to keep them open and free from any obstruction to 
+their navigation” and “to remove such obstructions when 
+they exist.” Gilman, 3 Wall., at 725. Thus, any activity 
+that “interferes with, obstructs, or prevents such commerce 
+and navigation, though done on land, may be punished by 
+Page Proof Pending Publication
+
+688 
+SACKETT v. EPA 
+Thomas, J., concurring 
+congress.” Coombs, 12 Pet., at 78. But, activities that 
+merely “affect” water-based commerce, such as those regu­
+lated by “[i]nspection laws, quarantine laws, health laws of 
+every description, as well as laws for regulating the internal 
+commerce of a State,” are not within Congress' channels­
+of-commerce authority. Gibbons, 9 Wheat., at 203; see also 
+Corfeld, 6 F. Cas., at 550. 
+This understanding of the limits of Congress' channels-of­
+commerce authority prevailed through the end of the 19th 
+century. The Court's cases consistently recognized that 
+Congress has authority over navigable waters for only the 
+limited “purpose of regulating and improving navigation.” 
+Gibson v. United States, 166 U. S. 269, 271–272 (1897); see 
+also Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 
+56, 63 (1921) (“The right of the United States in the naviga­
+ble waters within the several States is limited to the control 
+thereof for purposes of navigation”). And, this Court was 
+careful to reaffrm that “technical title to the beds of the 
+navigable rivers of the United States is either in the States 
+in which the rivers are situated, or in the owners of the land 
+bordering upon such rivers” as determined by “local law.” 
+United States v. Chandler-Dunbar Water Power Co., 229 
+U. S. 53, 60 (1913). 
+The River and Harbor Acts of 1890, 1894, and 1899 illus­
+trate the limits of the channels-of-commerce authority. The 
+1890 Act authorizes the Secretary of War to “prohibi[t]” “the 
+creation of any obstruction, not affrmatively authorized by 
+law, to the navigable capacity of any waters, in respect of 
+which the United States has jurisdiction.” § 10, 26 Stat. 454. 
+The 1894 Act made it unlawful to deposit matter into “any 
+harbor or river of the United States” that the Federal Gov­
+ernment has appropriated money to improve and prohibited 
+injuring improvements built by the United States in “any of 
+its navigable waters.” § 6, 28 Stat. 363. 
+Congress consolidated and expanded these authorities in 
+the 1899 Act. Section 10 of the Act prohibits “[t]he creation 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+689 
+Thomas, J., concurring 
+of any obstruction . . . to the navigable capacity of any of 
+the waters of the United States,” requires a permit to build 
+“structures in any . . . water of the United States,” and 
+makes it unlawful “to excavate or fll, or in any manner to 
+alter or modify the course, location, condition, or capacity” 
+of any water, “within the limits of any breakwater, or of the 
+channel of any navigable water of the United States.” 30 
+Stat. 1151 (codifed, as amended, at 33 U. S. C. § 403). In ad­
+dition, § 13 of the Act, sometimes referred to as the “Refuse 
+Act,” prohibits throwing, discharging, or depositing “any re­
+fuse matter . . . into any navigable water of the United 
+States, or into any tributary of any navigable water from 
+which the same shall foat or be washed into such navigable 
+water.” 30 Stat. 1152 (codifed, as amended, at 33 U. S. C. 
+§ 407). Section 13 also prohibits depositing material “on the 
+bank of any navigable water, or on the bank of any tributary 
+of any navigable water, where the same shall be liable to be 
+washed into such navigable water . . . whereby navigation 
+shall or may be impeded or obstructed.” Ibid. 
+Three things stand out about these provisions. First, 
+they use the terms “navigable water,” “water of the United 
+States,” and “navigable water of the United States” inter­
+changeably. 33 U. S. C. §§ 403 and 407; see also V. Al­
+brecht & S. Nickelsburg, Could SWANCC Be Right? A New 
+Look at the Legislative History of the Clean Water Act, 32 
+Env. L. Rev. 11042, 11044 (2002) (Albrecht & Nickelsburg). 
+As a result, courts have done the same in decisions interpret­
+ing the River and Harbor Acts. See, e. g., United States v. 
+Stoeco Homes, Inc., 498 F. 2d 597, 608–609 (CA3 1974); New 
+England Dredging Co. v. United States, 144 F. 932, 933–934 
+(CA1 1906); Blake v. United States, 181 F. Supp. 584, 587– 
+588 (ED Va. 1960). 
+Second, Congress asserted its authority only to the extent 
+that obstructions or refuse matter could impede navigation 
+or navigable capacity. Thus, in United States v. Rio Grande 
+Dam & Irrigation Co., 174 U. S. 690 (1899), this Court recog­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+690 
+SACKETT v. EPA 
+Thomas, J., concurring 
+nized that any “act sought to be enjoined” under the 1890 
+Act must be “one which fairly and directly tends to obstruct 
+(that is, interfere with or diminish) the navigable capacity 
+of a stream.” Id., at 709; accord, Lake Shore & Michigan 
+Southern R. Co. v. Ohio, 165 U. S. 365, 369 (1897) (holding 
+that federal jurisdiction over “navigable waters” was limited 
+to preventing “interfering with commerce”). Similarly, in 
+Wisconsin v. Illinois, 278 U. S. 367 (1929), this Court in­
+terpreted the 1899 Act in light of the constitutional prohibi­
+tion on Congress “arbitrarily destroy[ing] or impair[ing] the 
+rights of riparian owners by legislation which has no real or 
+substantial relation to the control of navigation or appropri­
+ateness to that end.” Id., at 415.1 
+The touchstone, thus, 
+remained actual navigation. 
+Third, § 13 of the Act requires some form of surface water 
+connection between a tributary and traditionally navigable 
+waters. See 33 U. S. C. § 407 (prohibiting depositing refuse 
+“into any tributary of any navigable water from which the 
+same shall foat or be washed into such navigable water”). 
+To be sure, the Refuse Act also prohibits leaving refuse “on 
+the bank of any navigable water, or on the bank of any tribu­
+tary of any navigable water, where the same shall be liable 
+to be washed into such navigable water.” Ibid. But, this 
+prohibition refects nothing more than Congress' traditional 
+1 Courts had long carefully enforced limits on Congress' navigation au­
+thority in prosecutions brought under the Act of July 7, 1838, ch. 191, 5 
+Stat. 304 (Steamboat Acts of 1838), which prohibited the transportation of 
+goods “upon the bays, lakes, rivers, or other navigable waters of the 
+United States” by certain steamboats. See, e. g., The Seneca, 27 F. Cas. 
+1021 (No. 16,251) (DC Wis. 1861); see also The James Morrison, 26 F. Cas. 
+579, 582 (No. 15,465) (DC Mo. 1846) (holding that the 1838 Act did not 
+reach a ship whose “employment ha[d] no other than a remote connection 
+with `commerce or navigation among the several states;' no more connec­
+tion than has the farmer who cultivates hemp, tobacco or cotton for a 
+market in other states—the miner who digs and smelts lead—the manufac­
+turer who manufactures for the same market, or the traveler who intends 
+purchasing any of these articles”). 
+
+Cite as: 598 U. S. 651 (2023) 
+691 
+Thomas, J., concurring 
+authority to regulate acts done on land that directly impair 
+the navigability of traditionally navigable waters. See Rio 
+Grande Dam & Irrigation Co., 174 U. S., at 708 (explaining 
+that the Act reaches “any obstruction to the navigable capac­
+ity, and anything, wherever done or however done, . . . which 
+tends to destroy the navigable capacity of one of the naviga­
+ble waters of the United States”); see also Northern Pacifc 
+R. Co. v. United States, 104 F. 691, 693 (CA8 1900); Coombs, 
+12 Pet., at 78. It does not mean that the land itself is a 
+navigable water.2 
+The history of federal regulation of navigable waters dem­
+onstrates that Congress' authority over navigation, as tradi­
+tionally understood, was narrow but deep. It only applied 
+to a discrete set of navigable waters and could only be used 
+to keep those waters open for interstate commerce. See 
+Port of Seattle, 255 U. S., at 63; Rio Grande Dam & Irriga­
+tion Co., 174 U. S., at 709. Yet, where Congress had author­
+ity, it displaced the States' traditional sovereignty over their 
+navigable waters and allowed Congress to regulate activities 
+even on land that could directly cause obstructions to naviga­
+ble capacity. Gilman, 3 Wall., at 724–725; Coombs, 12 Pet., 
+at 78. 
+In light of the depth of this new federal power, it was 
+carefully limited—mere “effects” on interstate commerce 
+were not suffcient to trigger Congress' navigation authority. 
+As one District Court presciently observed in interpreting 
+the term “navigable waters of the United States” in the 
+Steamboat Act of 1838: 
+“To make a particular branch of commerce or trade 
+within a state, a part of the commerce among the several 
+2 The early 20th century also saw the Reclamation Act of 1902, ch. 1093, 
+32 Stat. 388; Federal Power Act, ch. 285, 41 Stat. 1063; Oil Pollution Act, 
+1924, ch. 316, 43 Stat. 604; and Flood Control Act of 1936, ch. 688, 49 Stat. 
+1570, all of which relied on navigability. See Walston 724–726. Although 
+the Acts were also designed to achieve incidental benefts such as pollution 
+control, Congress located its authority in preserving navigation. Ibid. 
+Page Proof Pending Publication
+
+692 
+SACKETT v. EPA 
+Thomas, J., concurring 
+states, it would not be suffcient that it was remotely 
+connected with that commerce among the several states; 
+for almost everything and every occupation and employ­
+ment in life are remotely connected with that commerce 
+or navigation. And if Congress has the right to regu­
+late every employment or pursuit thus remotely con­
+nected with that commerce, of which they have the con­
+trol, then it has the right to regulate nearly the entire 
+business and employment of the citizens of the several 
+states. . . . Yet, if Congress has the power to regulate 
+all these employments, and a thousand others equally 
+connected with that commerce, then it can regulate 
+nearly all the concerns of life, and nearly all the employ­
+ments of the citizens of the several states; and the state 
+governments might as well be abolished. It is not suf­
+fcient, then, that navigation, or trade, or business of any 
+kind, within a state, be remotely connected, or, perhaps, 
+connected at all with `commerce with foreign nations, or 
+among the several states, or with the Indian tribes,' it 
+should be a part of that commerce, to authorize congress 
+to regulate it.” The James Morrison, 26 F. Cas. 579, 
+581 (No. 15,465) (DC Mo. 1846). 
+The Court's observation that “federal regulation was largely 
+limited to ensuring that `traditional navigable waters' . . . 
+remained free of impediments,” ante, at 659, thus does no 
+more than refect the original understanding of the federal 
+authority over navigable waters. 
+B 
+As noted above, the scope of Congress' authority over wa­
+ters was defned by the traditional concept of navigability, 
+imported with signifcant modifcations from the English 
+common law.3 
+Thus, Congress could regulate only “naviga­
+3 The English rule tied navigability to the ebb and fow of the tides, but 
+began to be eroded in America as early as the Northwest Ordinance of 
+1787 due to the superior commercial capacity of American inland riv­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+693 
+Thomas, J., concurring 
+ble waters.” Consistent with that backdrop, the term “navi­
+gable waters”—used interchangeably with “waters of the 
+United States” and “navigable waters of the United 
+States”—referred to the waters subject to Congress' tradi­
+tional authority over navigable waters until the enactment 
+of the CWA. 
+1 
+The term “navigable waters” has been in use since the 
+founding to refer to the highways of commerce that were 
+key to the Nation's development. Great cities like Phila­
+delphia and St. Louis emerged at frst as commercial ports 
+along these navigable waters. The Framers recognized that 
+“Providence has in a particular manner blessed” our country 
+with “[a] succession of navigable waters” that “bind [the Na­
+tion] together; while the most noble rivers in the world, 
+running at convenient distances, present [Americans] with 
+highways for the easy communication of friendly aids and 
+the mutual transportation and exchange of their various 
+commodities.” The Federalist No. 2, p. 38 (C. Rossiter ed. 
+1961) (J. Jay). These “vast rivers, stretching far inland” 
+have been of “transcendent importance” to our Nation's eco­
+nomic expansion by forming “great highways” for commerce. 
+L. Houck, Law of Navigable Rivers xiii (1868). 
+This Court authoritatively set out the scope of the term 
+“navigable waters of the United States” in the seminal case 
+of The Daniel Ball, 10 Wall. 557 (1871). That case arose 
+under the Steamboat Act of 1838, which prohibited the trans­
+portation of goods “upon the bays, lakes, rivers, or other nav­
+ers. See The Daniel Ball, 10 Wall. 557, 563 (1871); Propeller Genesee 
+Chief v. Fitzhugh, 12 How. 443, 454–457 (1852); see also Economy Light & 
+Power Co. v. United States, 256 U. S. 113, 120 (1921) (“[I]t is curious and 
+interesting that the importance of these inland waterways, and the inap­
+propriateness of the tidal test in defning our navigable waters, was thus 
+recognized by the Congress of the Confederation [in the Northwest Ordi­
+nance] more than 80 years before this court decided The Daniel Ball . . . 
+and more than 60 years before The Propeller Genesee Chief ”). 
+Page Proof Pending Publication
+
+694 
+SACKETT v. EPA 
+Thomas, J., concurring 
+igable waters of the United States.” § 2, 5 Stat. 304. This 
+Court held that the term “navigable” refers to waters that 
+are “navigable in fact,” meaning that “they are used, or are 
+susceptible of being used, in their ordinary condition, as 
+highways for commerce, over which trade and travel are or 
+may be conducted in the customary modes of trade and 
+travel on water.” The Daniel Ball, 10 Wall., at 563. The 
+Court then explained that navigable waters are “of the 
+United States,” “in contradistinction from the navigable wa­
+ters of the States, when they form in their ordinary condition 
+by themselves, or by uniting with other waters, a continued 
+highway over which commerce is or may be carried on with 
+other States or foreign countries in the customary modes in 
+which such commerce is conducted by water.” Ibid.; see 
+also The Montello, 11 Wall. 411, 415 (1871) (“If . . . the river 
+is not of itself a highway for commerce with other States 
+or foreign countries, or does not form such highway by its 
+connection with other waters, and is only navigable between 
+different places within the State, then it is not a navigable 
+water of the United States, but only a navigable water of the 
+State”). It is this “junction” between waters to “for[m] a 
+continued highway for commerce, both with other States and 
+with foreign countries,” that brings the water “under the 
+direct control of Congress in the exercise of its commercial 
+power.” The Daniel Ball, 10 Wall., at 564. The defnition 
+of a “navigable water of the United States” was thus linked 
+directly to the limits on Congress' commerce authority: A 
+navigable water of the United States was one that was ordi­
+narily used for interstate or foreign commerce. 
+Wetlands were generally excluded from this defnition. 
+In Leovy v. United States, 177 U. S. 621 (1900), for example, 
+the Court employed the Daniel Ball test to hold that the 
+term “navigable waters of the United States,” as used in the 
+1890 River and Harbor Act, did not “prevent the exercise by 
+the State of Louisiana of its power to reclaim swamp and 
+overfowed lands by regulating and controlling the current 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+695 
+Thomas, J., concurring 
+of small streams not used habitually as arteries of interstate 
+commerce.” 177 U. S., at 632. The Court observed that 
+applying the Act to wetlands reclamation “would extend the 
+paramount jurisdiction of the United States over all the 
+fowing waters in the States.” Id., at 633. “If such were 
+the necessary construction of the” term “navigable water,” 
+the Court explained, the River and Harbor Act's “validity 
+might well be questioned.” Ibid. But, the Court declined 
+to interpret the Act to reach the wetlands, because it recog­
+nized that the phrase “navigable waters of the United 
+States” encompassed only those waters reached by the tradi­
+tional channels-of-commerce authority: 
+“When it is remembered that the source of the power of 
+the general government to act at all in this matter arises 
+out of its power to regulate commerce with foreign coun­
+tries and among the States, it is obvious that what the 
+Constitution and the acts of Congress have in view is 
+the promotion and protection of commerce in its interna­
+tional and interstate aspect, and a practical construction 
+must be put on these enactments as intended for such 
+large and important purposes.” Ibid. 
+The Court thus held that the mere use of a wetland by fsh­
+ermen was not suffcient to make the wetland a navigable 
+water of the United States; it “was not shown that passen­
+gers were ever carried through it, or that freight destined to 
+any other State than Louisiana, or, indeed, destined for any 
+market in Louisiana, was ever, much less habitually, carried 
+through it.” Id., at 627.4 
+4 Leovy v. United States also refected the law's longstanding hostility 
+to wetlands: “If there is any fact which may be supposed to be known by 
+everybody, and, therefore, by courts, it is that swamps and stagnant wa­
+ters are the cause of malarial and malignant fevers, and that the police 
+power is never more legitimately exercised than in removing such nui­
+sances.” 177 U. S., at 636. Traditionally, the only time wetlands were 
+the subject of federal legislation was to aid the States in draining them. 
+See, e. g., Swamp Land Act of 1850, ch. 84, 9 Stat. 519; see also S. Johnson, 
+Page Proof Pending Publication
+
+696 
+SACKETT v. EPA 
+Thomas, J., concurring 
+The Daniel Ball test, with minor variations, marked the 
+limits of federal jurisdiction over waters up to the enactment 
+of the CWA. For instance, in Economy Light & Power Co. 
+v. United States, 256 U. S. 113 (1921), the Court applied The 
+Daniel Ball but expanded it to hold that the River and Har­
+bor Act of 1899 reaches waters that are not currently capable 
+of supporting interstate commerce, though they once did. 
+256 U. S., at 123–124. And, in United States v. Appalachian 
+Elec. Power Co., 311 U. S. 377 (1940), the Court applied The 
+Daniel Ball to reach waters that could be made navigable 
+with reasonable and feasible improvement. 311 U. S., at 
+408–409. While these cases expanded the outer boundaries 
+of the term, creating an expanded form of the Daniel Ball 
+test, they refect the Court's longstanding view that the stat­
+utory term “navigable water” required application of the 
+Daniel Ball test. 
+2 
+In the New Deal era, as is well known, this Court adopted 
+a greatly expanded conception of Congress' commerce au­
+thority by permitting Congress to regulate any private in­
+trastate activity that substantially affects interstate com­
+merce, either by itself or when aggregated with many similar 
+activities. See Wickard v. Filburn, 317 U. S. 111, 127–129 
+(1942); see also United States v. Darby, 312 U. S. 100, 119 
+(1941). Yet, this expansion did not fundamentally change 
+the Court's understanding that the term “navigable waters” 
+referred to waters used for interstate commerce. Thus, in 
+Appalachian Elec., the Court continued to apply the concept 
+of navigability to determine the scope of Congress' Com­
+merce Clause authority to require licenses under the Federal 
+Water Power Act for the construction of hydroelectric dams 
+in “navigable waters.” 311 U. S., at 406–410. Only after 
+Wetlands Law: A Course Source 25–26 (2d ed. 2018). Wetlands preserva­
+tion only gained traction due, in large part, to advances in frearms tech­
+nology that made waterfowl hunting feasible. G. Baldassarre & E. Bolen, 
+Waterfowl Ecology and Management 10–14 (1994). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+697 
+Thomas, J., concurring 
+applying the Daniel Ball defnition to determine that the 
+river in question was navigable did the Court hold that Con­
+gress had plenary authority over the erection of structures 
+in the river, regardless of whether the structure actually im­
+peded navigability. 311 U. S., at 423–426. While this rep­
+resented an expansive application of the old concept that 
+Congress can prevent obstructions to navigable capacity, see 
+supra, at 687, 690–691, Appalachian Elec. made clear that 
+the term “navigable waters” remained tethered to Congress' 
+traditional channels-of-commerce authority—not to the 
+broader conceptions of the commerce authority adopted by 
+the Court at that time. 
+The next year, in Oklahoma ex rel. Phillips v. Guy F. At­
+kinson Co., 313 U. S. 508 (1941), the Court reaffrmed that 
+the term “navigable waters,” this time as used in the Flood 
+Control Act of 1936, was to be interpreted in light of the 
+expanded Daniel Ball test. 313 U. S., at 522–525. Signif­
+cantly, Oklahoma was decided mere months after Darby, one 
+of the most signifcant cases expanding the scope of the com­
+merce authority. 312 U. S., at 119. However, Oklahoma 
+did not so much as mention Darby in construing the jurisdic­
+tion Congress conveyed in the term “navigable waters.” In­
+stead, it cited Darby only in passing and to support the argu­
+ment that, once a river is deemed navigable under the 
+channels-of-commerce authority, Congress has authority to 
+protect “the nation's arteries of commerce” by regulating in­
+trastate activities on nonnavigable parts and tributaries of 
+the navigable river lest such activities “impai[r] navigation 
+itself.” Oklahoma, 313 U. S., at 525. This was nothing 
+more than an application of the principle that Congress can 
+regulate activities that obstruct navigable capacity. Thus, 
+even as the Court expanded the Commerce Clause in other 
+contexts, it continued to understand that the term “naviga­
+ble waters” refers solely to the aquatic channels of interstate 
+commerce over which Congress traditionally exercised 
+authority. 
+
+698 
+SACKETT v. EPA 
+Thomas, J., concurring 
+3 
+This understanding of the term “navigable waters”—i. e., 
+as shorthand for waters subject to Congress' authority under 
+the Daniel Ball test—persisted up to the enactment of the 
+CWA. See, e. g., Stoeco Homes, Inc., 498 F. 2d, at 608–609; 
+United States v. Joseph G. Moretti, Inc., 478 F. 2d 418, 428– 
+429 (CA5 1973); see also D. Guinn, An Analysis of Navigable 
+Waters of the United States, 18 Baylor L. Rev. 559, 579 
+(1966) (“[T]he test of The Daniel Ball and Appalachian 
+Power Co. are religiously cited as being the basis for the 
+holding on the issue of navigability”). As a court observed 
+near the time of the CWA's enactment, “[a]lthough the def­
+nition of `navigability' laid down in The Daniel Ball has sub­
+sequently been modifed and clarifed, its defnition of `navi­
+gable water of the United States,' insofar as it requires a 
+navigable interstate linkage by water, appears to remain un­
+changed.” Hardy Salt Co. v. Southern Pacifc Transp. Co., 
+501 F. 2d 1156, 1167 (CA10 1974) (citations omitted). This 
+Court's cases, too, continued to apply traditional navigability 
+concepts in cases under the River and Harbor Acts right up 
+to the CWA's enactment. See United States v. Standard Oil 
+Co., 384 U. S. 224, 226 (1966) (holding that spilling oil in a 
+navigable water was prohibited by the Refuse Act (§ 13 of 
+the 1899 Act) because “its presence in our rivers and harbors 
+is both a menace to navigation and a pollutant”); United 
+States v. Republic Steel Corp., 362 U. S. 482, 487–491 (1960) 
+(“diminution of the navigable capacity of a waterway” re­
+quired for violation of the Refuse Act). Thus, on the eve of 
+the CWA's enactment, the term “navigable waters” meant 
+those waters that are, were, or could be used as highways of 
+interstate or foreign commerce. 
+II 
+This history demonstrates that Congress was not writing 
+on a blank slate in the CWA, which defnes federal jurisdic­
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+699 
+Thomas, J., concurring 
+tion using the same terms used in the River and Harbor 
+Acts: “navigable waters” and “the waters of the United 
+States,” 33 U. S. C. §§ 1311(a), 1362(7), (12). As explained 
+above, courts and Congress had long used the terms “naviga­
+ble water,” “navigable water of the United States,” and “the 
+waters of the United States” interchangeably to signify those 
+waters to which the traditional channels-of-commerce au­
+thority extended. See supra, at 689. The terms “naviga­
+ble waters” and “waters of the United States” shared a core 
+requirement that the water be a “highway over which com­
+merce is or may be carried,” with the term “of the United 
+States” doing the independent work of requiring that such 
+commerce “be carried on with other States or foreign coun­
+tries.” The Daniel Ball, 10 Wall., at 563. The text of the 
+CWA thus refects the traditional balance between federal 
+and state authority over navigable waters, as set out by The 
+Daniel Ball. It would be strange indeed if Congress sought 
+to effect a fundamental transformation of federal jurisdiction 
+over water through phrases that had been in use to describe 
+the traditional scope of that jurisdiction for well over a cen­
+tury and that carried a well-understood meaning.5 
+The Army Corps of Engineers originally understood the 
+CWA in precisely this way. In its 1974 regulation establish­
+5 In fact, when Congress has wished to depart from this traditional 
+meaning, it has done so expressly, as in parts of the Federal Power Act, 
+§ 23, 41 Stat. 1075 (requiring approval for dam construction “across, along, 
+over, or in any stream or part thereof, other than those defned herein this 
+chapter as navigable waters”); the Federal Water Pollution Control Act, 
+ch. 758, § 2(a), 62 Stat. 1155 (as amended, 86 Stat. 816) (authorizing federal-
+state cooperation to abate water pollution in “interstate waters” and their 
+tributaries); and the Water Quality Act of 1965, 79 Stat. 905–906 (authoriz­
+ing grants to research abatement of pollution into “any waters”); see 
+Hardy Salt Co. v. Southern Pacifc Transp. Co., 501 F. 2d 1156, 1168 (CA10 
+1974) (noting that Congress only departs from the expanded Daniel Ball 
+test by using “clear and explicit language,” as it did in parts of the Federal 
+Power Act). 
+Page Proof Pending Publication
+
+700 
+SACKETT v. EPA 
+Thomas, J., concurring 
+ing the frst CWA § 404 permitting program,6 the Corps in­
+terpreted the term “the waters of the United States” to es­
+tablish jurisdiction over the traditional navigable waters as 
+determined by the expanded Daniel Ball test, noting also 
+that the term is limited by Congress' navigation authority. 
+39 Fed. Reg. 12115. The Corps anchored its jurisdiction in 
+the expanded Daniel Ball test, defning “navigable waters” 
+to include “those waters of the United States which are sub­
+ject to the ebb and fow of the tide, and/or are presently, or 
+have been in the past, or may be in the future susceptible 
+for use for purposes of interstate or foreign commerce.” 33 
+CFR § 209.120(d)(1) (1974); see also §§ 209.260(d)(1)–(3) (re­
+quiring “[p]ast, present, or potential presence of interstate 
+or foreign commerce,” “[p]hysical capabilities for use by com­
+merce,” and “[d]efned geographic limits of the water body”). 
+The regulations also made clear that traditional navigability 
+factors were the baseline for CWA jurisdiction: “It is the 
+water body's capability of use by the public for purposes 
+of transportation or commerce which is the determinative 
+factor.” § 209.260(e)(1). 
+Almost immediately, however, a few courts and the re­
+cently created Environmental Protection Agency (EPA) re­
+jected this interpretation. Instead, they interpreted the 
+CWA to assert the full extent of Congress' New Deal era 
+authority to regulate anything that substantially affects in­
+terstate commerce by itself or in the aggregate. See United 
+States v. Ashland Oil & Transp. Co., 504 F. 2d 1317, 1323– 
+1329 (CA6 1974); P. F. Z. Properties, Inc. v. Train, 393 
+F. Supp. 1370, 1381 (DC 1975); National Resources Defense 
+Council, Inc. v. Callaway, 392 F. Supp. 685, 686 (DC 1975); 
+United States v. Holland, 373 F. Supp. 665, 669, 672–674 (MD 
+Fla. 1974); 40 CFR § 125.1(o) (1974) (initial EPA CWA defni­
+tion). The courts that reached this conclusion relied almost 
+exclusively on legislative history and statutory purpose. 
+6 Section 404 authorizes the Corps to “issue permits . . . for the discharge 
+of dredged or fll material into the navigable waters at specifed disposal 
+sites.” 33 U. S. C. §§ 1344(a), (d). 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+701 
+Thomas, J., concurring 
+See, e. g., Holland, 373 F. Supp., at 672 (“The foregoing [leg­
+islative history] compels the Court to conclude that the for­
+mer test of navigability was indeed defned away in the 
+[CWA]”). But signals from legislative history cannot rebut 
+clear statutory text, and the text of the CWA employs words 
+that had long been universally understood to reach only 
+those waters subject to Congress' channels-of-commerce au­
+thority. See supra, at 698. 
+These courts and the EPA had only one textual hook for 
+their interpretation: In defning the term “navigable waters” 
+as “the waters of the United States,” the CWA seemed to 
+drop the term “navigable” from the operative part of the 
+definition. Seizing on this phrasing, the EPA's general 
+counsel asserted in 1973 that “the deletion of the word `navi­
+gable' eliminates the requirement of navigability. The only 
+remaining requirement, then, is that pollution of waters cov­
+ered by the bill must be capable of affecting interstate com­
+merce.” 1 EPA Gen. Counsel Op. 295 (1973). Similarly, the 
+District Court that vacated the Corps' original CWA defni­
+tion held, without any analysis or citation, that the term “the 
+waters of the United States” in the CWA is “not limited to 
+the traditional tests of navigability.” National Resources 
+Defense Council, 392 F. Supp., at 686. 
+That interpretation cannot be right. For one, the terms 
+“navigable waters” and “the waters of the United States” 
+had long been used synonymously by courts and Congress. 
+The CWA simply used the terms in the same manner as the 
+River and Harbor Acts. Moreover, no source prior to the 
+CWA had ever asserted that the term “the waters of the 
+United States,” when not modifed by “navigable,” reached 
+any water that may affect interstate commerce. Instead, 
+The Daniel Ball made clear that “[t]he phrase `waters of the 
+United States, . . . in contradistinction from the navigable 
+waters of the States,' . . . distinguishes interstate from intra­
+state waters.” Albrecht & Nickelsburg 11049 (quoting The 
+Daniel Ball, 10 Wall., at 563); accord, 1 A. Knauth, Benedict 
+on Admiralty § 44, p. 96 (6th ed. 1940) (“The inland lakes of 
+
+702 
+SACKETT v. EPA 
+Thomas, J., concurring 
+various States are navigable but, having no navigable outlet 
+linking them with our system of water-ways, have never 
+been held to be public waters of the United States” (emphasis 
+added)). The text of the CWA extends jurisdiction to “navi­
+gable waters,” and—precisely tracking The Daniel Ball— 
+clarifes that it reaches “the waters of the United States,” 
+rather than the navigable waters of the States. 
+Thus, the CWA's use of the phrase “the waters of the 
+United States” reinforces, rather than lessens, the need for 
+a water to be at least part of “a continued highway over 
+which commerce is or may be carried on with other States 
+or foreign countries in the customary modes in which such 
+commerce is conducted by water.” The Daniel Ball, 10 
+Wall., at 563. At most, the omission of the word “navigable” 
+signifes that the CWA adopts the expanded Daniel Ball 
+test—that includes waters that are, have been, or can be rea­
+sonably made navigable in fact—in its statutory provisions. 
+The Federal Government's interpretation, by contrast, ren­
+ders the use of the term “navigable” a nullity and involves 
+an unprecedented and extravagant reading of the well-
+understood term of art “the waters of the United States.” 
+See Albrecht & Nickelsburg 11049 (“EPA's conclusion is ahis­
+torical as well as illogical”).7 
+“[T]he waters of the United 
+States” does not mean any water in the United States. 
+7 To be sure, the CWA is more aggressive in regulating navigable waters 
+than the River and Harbor Acts. But, the increased stringency is not 
+accomplished by expanding jurisdiction. The Acts use the same jurisdic­
+tional terms. Instead, the difference between them lies in the expanded 
+scope of activities that the CWA regulates and its shift from an enforce­
+ment and injunctive regime to a previolation licensing regime. See Al­
+brecht & Nickelsburg 11046. I express no view on the constitutionality 
+of this regime as applied to navigable waters or on the Court's holding in 
+United States v. Appalachian Elec. Power Co., 311 U. S. 377 (1940), that 
+Congress can regulate things in navigable waters for purposes other than 
+removing obstructions to navigable capacity. I note, however, that before 
+the New Deal era, courts consistently construed statutes to authorize only 
+federal actions preserving navigable capacity in order to avoid exceeding 
+Congress' navigation authority. See supra, at 691–696. 
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+703 
+Thomas, J., concurring 
+There would be little need to explain any of this if the 
+agencies had not effectively flouted our decision in 
+SWANCC, which restored navigability as the touchstone of 
+federal jurisdiction under the CWA, and rejected the key 
+arguments supporting an expansive interpretation of the 
+CWA's text. We expressly held that Congress' “use of the 
+phrase `waters of the United States' ” in the CWA is not “a 
+basis for reading the term `navigable waters' out of the stat­
+ute”—directly contradicting the EPA's 1973 interpretation, 
+upon which every subsequent expansion of its authority has 
+been based. 531 U. S., at 172. We also held that the Corps 
+did not “mist[ake] Congress' intent” when it promulgated its 
+1974 regulations, under which “ `the determinative factor' ” 
+for navigability was a “ `water body's capability of use by the 
+public for purposes of transportation or commerce.' ” Id., 
+at 168 (quoting 33 CFR § 209.260(e)(1)). In doing so, we re­
+jected reliance on the CWA's “ambiguous” legislative history, 
+which the EPA had used “to expand the defnition of `naviga­
+ble waters' ” to the outer limit of the commerce authority as 
+interpreted in the New Deal. 531 U. S., at 168, n. 3.8 
+In­
+stead, we made clear that Congress did not intend “to exert 
+anything more than its commerce power over navigation.” 
+Ibid.; see also id., at 173 (rejecting the Government's ar­
+gument that the CWA invokes “Congress' power to regu­
+late intrastate activities that `substantially affect' interstate 
+commerce”). 
+SWANCC thus interpreted the text of the CWA as imple­
+menting Congress' “traditional jurisdiction over waters that 
+8 The historical context demonstrates that it was the Corps' failure to 
+regulate to the full extent of Congress' navigation power, not its commerce 
+power generally, that led to the enactment of the CWA. See Albrecht & 
+Nickelsburg 11047 (explaining that the CWA's legislative history is better 
+interpreted “as the Supreme Court in SWANCC read it, to mean simply 
+that Congress intended to override previous, unduly narrow agency inter­
+pretations to assert its broadest constitutional authority over the tradi­
+tional navigable waters”); see also S. Bodine, Examining the Term “Wa­
+ters of the United States” in Its Historical Context, C. Boyden Gray 
+Center for the Study of the Administrative State Policy Brief No. 4 (2022). 
+
+704 
+SACKETT v. EPA 
+Thomas, J., concurring 
+were or had been navigable in fact or which could reason­
+ably be so made”—i. e., the expanded Daniel Ball test. 531 
+U. S., at 172 (citing Appalachian Elec., 311 U. S., at 407– 
+408).9 
+And, consistent with the traditional link between 
+navigability and the limits of Congress' regulatory authority, 
+SWANCC noted that any broader interpretation would raise 
+“signifcant constitutional and federalism questions” and “re­
+sult in a signifcant impingement of the States' traditional 
+and primary power over land and water use.” 531 U. S., at 
+174. Both in its holdings and in its mode of analysis, 
+SWANCC cannot be reconciled with the agencies' sharp 
+departure from the centuries-old understanding of naviga­
+9 Section 404(g), added by the 1977 CWA Amendments, does not demon­
+strate that the CWA departs from traditional conceptions of navigability. 
+That provision states that States may administer permit programs for 
+discharges into “navigable waters (other than those waters which are pres­
+ently used, or are susceptible to use in their natural condition or by reason­
+able improvement as a means to transport interstate or foreign commerce 
+. . . , including wetlands adjacent thereto).” 91 Stat. 1601 (codifed, as 
+amended, at 33 U. S. C. § 1344(g)). This provision thus authorizes States 
+to establish their own permit programs over a discrete class of tradition­
+ally navigable waters of the United States: those that once were navigable 
+waters of the United States, but are no longer navigable in fact. See 
+Economy Light & Power Co., 256 U. S., at 123–124. Some have asserted 
+that this nonjurisdictional provision—the function of which in the statute 
+is to expand state authority—signals that Congress actually intended an 
+unprecedented expansion of federal authority over the States. Rapanos 
+v. United States, 547 U. S. 715, 805–806 (2006) (Stevens, J., dissenting); see 
+also post, at 717–719 (Kavanaugh, J., concurring in judgment); post, at 
+710–712 (Kagan, J., concurring in judgment). But, as the Court explains, 
+not only is § 404(g) not the relevant defnitional provision, its reference to 
+“wetlands” is perfectly consistent with the commonsense recognition that 
+some wetlands are indistinguishable from navigable waters with which 
+they have continuous surface connections. Ante, at 674–679, 683–684. 
+To infer Congress' intent to upend over a century of settled understanding 
+and effect an unprecedented transfer of authority over land and water to 
+the Federal Government, based on nothing more than a negative inference 
+from a parenthetical in a subsection that preserves state authority, is coun­
+terintuitive to say the least. 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+705 
+Thomas, J., concurring 
+bility and the traditional limits of Congress' channels-of­
+commerce authority. 
+In sum, the plain text of the CWA and our opinion in 
+SWANCC demonstrate that the CWA must be interpreted 
+in light of Congress' traditional authority over navigable 
+waters. See Albrecht & Nickelsburg 11055 (noting that 
+SWANCC “states more than once that Congress' use of the 
+term `navigable waters' signifes that Congress intended to 
+exercise its traditional authority over navigable waters, and 
+not its broader power over all things that substantially affect 
+commerce”). Yet, for decades, the EPA (of its own license) 
+and the Corps (under the compulsion of an unreasoned and 
+since discredited District Court order) have issued substan­
+tively identical regulatory defnitions of “the waters of the 
+United States” that completely ignore navigability and in­
+stead expand the CWA's coverage to the outer limits of the 
+Court's New Deal-era Commerce Clause precedents. 
+III 
+This case demonstrates the unbounded breadth of the ju­
+risdiction that the EPA and the Corps have asserted under 
+the CWA. The regulatory defnition applied to the Sacketts' 
+property declares “intrastate” waters, wetlands, and various 
+other wet things to be “waters of the United States” if their 
+“use, degradation or destruction . . . could affect interstate 
+or foreign commerce.” 40 CFR § 230.3(s)(3) (2008) (empha­
+sis added). To leave no doubt that the agencies have en­
+tirely broken from traditional navigable waters, they give 
+several examples of qualifying waters: those that “are or 
+could be used by interstate or foreign travelers for recre­
+ational or other purposes,” those “[f]rom which fsh or shell­
+fsh are or could be taken and sold in interstate or foreign 
+commerce,” those that “are used or could be used for indus­
+trial purposes by industries in interstate commerce,” “[t]rib­
+utaries of” any such waters, and “[w]etlands adjacent to” any 
+such waters. §§ 230.3(s)(3)(i)–(iii), (5), (7). This defnition 
+Page Proof Pending Publication
+
+706 
+SACKETT v. EPA 
+Thomas, J., concurring 
+and others like it are premised on the fallacy repudiated in 
+SWANCC: that the text of the CWA expands federal juris­
+diction beyond Congress' traditional “commerce power over 
+navigation.” 531 U. S., at 168, n. 3. 
+Nonetheless, under these boundless standards, the agen­
+cies have “asserted jurisdiction over virtually any parcel of 
+land containing a channel or conduit . . . through which rain­
+water or drainage may occasionally or intermittently fow,” 
+including “storm drains, roadside ditches, ripples of sand in 
+the desert that may contain water once a year, and lands 
+that are covered by floodwaters once every 100 years.” 
+Rapanos, 547 U. S., at 722 (plurality opinion). The agencies' 
+defnition “engulf[s] entire cities and immense arid waste­
+lands” alike. Ibid. Indeed, because “the entire land area of 
+the United States lies in some drainage basin, and an endless 
+network of visible channels furrows the entire surface,” 
+“[a]ny plot of land containing such a channel may potentially 
+be regulated.” Ibid. 
+If this interpretation were correct, the only prudent move 
+for any landowner in America would be to ask the Federal 
+Government for permission before undertaking any kind of 
+development. See Tr. of Oral Arg. 86, 116–117. This re­
+gime turns Congress' traditionally limited navigation au­
+thority on its head. The baseline under the Constitution, 
+the CWA, and the Court's precedents is state control of 
+waters. See SWANCC, 531 U. S., at 174 (reaffrming “the 
+States' traditional and primary power over land and water 
+use”); Leovy, 177 U. S., at 633 (repudiating an interpretation 
+of the 1899 Act that would render practically every “creek 
+or stream in the entire country” a “navigable water of the 
+United States” and “subject the offcers and agents of a State 
+. . . to fne and imprisonment” for draining a swamp “unless 
+permission [was] frst obtained from the Secretary of War”). 
+By contrast, the agencies' interpretation amounts to a fed­
+eral police power, exercised in the most aggressive possi­
+ble way. 
+Page Proof Pending Publication
+
+Cite as: 598 U. S. 651 (2023) 
+707 
+Thomas, J., concurring 
+Thankfully, applying well-established navigability rules 
+makes this a straightforward case. The “wetlands” on the 
+Sacketts' property are not “waters of the United States” for 
+several independently suffcient reasons. First, for the rea­
+sons set out by the Court, the Sacketts' wetlands are not 
+“waters” because they lack a continuous surface connection 
+with a traditional navigable water. See ante, at 684. Sec­
+ond, the nonnavigable so-called “tributary” (really, a road­
+side ditch) across the street from the Sacketts' property is 
+not a water of the United States because it is not, has never 
+been, and cannot reasonably be made a highway of interstate 
+or foreign commerce. See SWANCC, 531 U. S., at 172. 
+Third, the agencies have not attempted to establish that 
+Priest Lake is a navigable water under the expanded Daniel 
+Ball test. The lake is purely intrastate, and the agencies 
+have not shown that it is a highway of interstate or foreign 
+commerce. Instead, the agencies rely primarily upon inter­
+state tourism and the lake's attenuated connection to naviga­
+ble waters. See U. S. Army Corps of Engineers, G. Rayner, 
+Priest Lake Jurisdictional Determination (Feb. 27, 2007); see 
+also Brief for National Association of Home Builders of the 
+United States as Amicus Curiae 21–24. But, this is likely 
+insuffcient under the traditional navigability tests to which 
+the CWA pegs jurisdiction. See supra, at 693–696; accord, 
+Tr. of Oral Arg. 119 (EPA counsel conceding that Congress 
+“hasn't used its full Commerce Clause authority” in the 
+CWA). Finally, even assuming that a navigable water is in­
+volved, the agencies have not established that the Sacketts' 
+actions would obstruct or otherwise impede navigable capac­
+ity or the suitability of the water for interstate commerce. 
+See Rio Grande Dam & Irrigation Co., 174 U. S., at 709. 
+This is not to say that determining whether a water quali­
+fes under the CWA is always easy. But, it is vital that we 
+ask the right question in determining what constitutes “the 
+waters of the United States”: whether the water is within 
+Congress' traditional authority over the interstate channels 
+Page Proof Pending Publication
+
+708 
+SACKETT v. EPA 
+Thomas, J., concurring 
+of commerce. Here, no elaborate analysis is required to 
+know that the Sacketts' land is not a water, much less a 
+water of the United States. 
+IV 
+What happened to the CWA is indicative of deeper prob­
+lems with the Court's Commerce Clause jurisprudence. The 
+eclipse of Congress' well-defned authority over the channels 
+of interstate commerce tracks the Court's expansion of Con­
+gress' power “[t]o regulate Commerce with foreign Nations, 
+and among the several States, and with the Indian Tribes.” 
+Art. I, § 8, cl. 3. As I have explained at length, the Court's 
+Commerce Clause jurisprudence has signifcantly departed 
+from the original meaning of the Constitution. See Gonza­
+les v. Raich, 545 U. S. 1, 58–59 (2005) (dissenting opinion); 
+Lopez, 514 U. S., at 586–602 (concurring opinion). “The 
+Clause's text, structure, and history all indicate that, at the 
+time of the founding, the term ` “commerce” consisted of sell­
+ing, buying, and bartering, as well as transporting for these 
+purposes.' ” Raich, 545 U. S., at 58. This meaning “stood 
+in contrast to productive activities like manufacturing and 
+agriculture,” and founding era sources demonstrate that “the 
+term `commerce' [was] consistently used to mean trade or 
+exchange—not all economic or gainful activity that has some 
+attenuated connection to trade or exchange.” Ibid. (citing 
+Lopez, 514 U. S., at 586–587 (Thomas, J., concurring); Bar­
+nett 112–125).10 
+By departing from this limited mean­
+10 Further scholarship notes that the term “commerce” as originally un­
+derstood “was bound tightly with the Lex Mercatoria and the sort of ac­
+tivities engaged in by merchants: buying and selling products made by 
+others (and sometimes land), associated fnance and fnancial instruments, 
+navigation and other carriage, and intercourse across jurisdictional lines.” 
+R. Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 
+80 St. John's L. Rev. 789, 845 (2006). This “did not include agriculture, 
+manufacturing, mining, malum in se crime, or land use. Nor did it in­
+clude activities that merely `substantially affected' commerce; on the con­
+Page Proof Pending Publication
+
+Page Proof Pending Publication
+Cite as: 598 U. S. 651 (2023) 
+709 
+Thomas, J., concurring 
+ing, the Court's cases have licensed federal regulatory 
+schemes that would have been “unthinkable” to the Constitu­
+tion's Framers and ratifers. Raich, 545 U. S., at 59 (opinion 
+of Thomas, J.). 
+Perhaps nowhere is this deviation more evident than in 
+federal environmental law, much of which is uniquely de­
+pendent upon an expansive interpretation of the Commerce 
+Clause. See Hodel v. Virginia Surface Mining & Reclama­
+tion Assn., Inc., 452 U. S. 264, 281–283 (1981); see also Brief 
+for Claremont Institute's Center for Constitutional Jurispru­
+dence as Amicus Curiae 17–25. And many environmental 
+regulatory schemes seem to push even the limits of the 
+Court's New Deal-era Commerce Clause precedents, see 
+Hodel, 452 U. S., at 309–313 (Rehnquist, J., concurring in 
+judgment), to say nothing of the Court's more recent prece­
+dents reining in the commerce power. See, e. g., SWANCC, 
+531 U. S., at 173–174; cf. Rancho Viejo, LLC v. Norton, 334 
+F. 3d 1158, 1160 (CADC 2003) (per curiam) (Roberts, J., dis­
+senting from denial of rehearing en banc) (“The panel's ap­
+proach in this case leads to the result that regulating the 
+taking [under the Endangered Species Act] of a hapless toad 
+that, for reasons of its own, lives its entire life in California 
+constitutes regulating `Commerce among the several 
+States' ” (ellipsis omitted)). 
+The Court's opinion today curbs a serious expansion of fed­
+eral authority that has simultaneously degraded States' au­
+thority and diverted the Federal Government from its im­
+portant role as guarantor of the Nation's great commercial 
+water highways into something resembling “a local zon­
+ing board.” Rapanos, 547 U. S., at 738 (plurality opinion). 
+But, wetlands are just the beginning of the problems raised 
+by the agencies' assertion of jurisdiction in this case. De­
+spite our clear guidance in SWANCC that the CWA extends 
+trary, the cases include wording explicitly distinguishing such activities 
+from commerce.” Ibid. 
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