author:
      Justice Thomas
      Justice Stevens,

text:
    HUNT, GOVERNOR OF NORTH CAROLINA, et al. v. CROMARTIE et al.
    No. 98-85.
    Argued January 20, 1999
    Decided May 17, 1999

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scaua, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 555.

      Walter E. Dellinger argued the cause for appellants. With him on the briefs were Michael F. Easley, Attorney General of North Carolina, Edwin M. Speas, Jr., Chief Deputy Attorney General, Tiare B. Smiley, Special Deputy Attorney General, and Melissa L. Saunders. Todd A. Coot, Adam Stein, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachhin, Jacqueline A. Berrien, and Victor A. Bolden filed briefs for appellants-intervenors Smallwood et al.

      Jarnos A. Feldman cause as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Yeomans, Deputy Solicitor General Underwood, David K. Flynn, and Louis E. Peraertz.

      Robinson 0. Everett argued the cause With him on the brief was Martin G. McGee.

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Laughlin McDonald, Neil Bradley, Cristina Correia, and Steven R. Shapiro; for the Brennan Center for Justice at New York University School of Law et al. by Burt Neuborne and Deborah Goldberg; for Congresswoman Corrine Brown et al. by Paul M. Smith, Donald B. Verrilli, Jr., and J. Gerald Hebert; and for the Lawyers’ Committee for Civil Rights Under Law by Matthm J. Zinn, David A. Stein, James U. Blacksker, Jack W London, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, and Edward Still.

   Justice Thomas

delivered the opinion of the Court.

In this appeal, we must decide whether appellees were entitled to summary judgment on their claim that North Carolina’s Twelfth Congressional District, as established by the State’s 1997 congressional redistricting plan, constituted an unconstitutional racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment.

This is the third time in six years that litigation over North Carolina’s Twelfth Congressional District has come before this Court. The first time around, we held that plaintiffs whose complaint alleged that the State had deliberately segregated voters into districts on the basis of race without compelling justification stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. Shaw v. Reno, 509 U. S. 630, 658 (1993) (Shaw I). After remand, we affirmed the District Court’s finding that North Carolina’s District 12 classified voters by race and further held that the State’s reapportionment scheme was not narrowly tailored to serve a compelling interest. Shaw v. Hunt, 517 U. S. 899 (1996) (Shaw II).

response our in Shaw II, the State enacted a new districting plan. See 1997 N. C. Sess. Laws, ch. 11. A map of the unconstitutional District 12 was set forth in the Appendix to the opinion of the Court in Shaw I, supra, and we described it as follows:

“The second majority-black district, District 12, is ... unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the [Interstate]~85 corridor. It winds in snakelike fashion through tobacco country, financial centers, and manufacturing areas ‘until it gobbles in enough enclaves of black neighborhoods.’ Northbound and southbound drivers on [Interstate]-85 sometimes find themselves in separate districts in one county, only to ‘trade’ districts when they enter the next county. Of the 10 counties through which District 12 passes, 5 are cut into 8 different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them.” 509 U. S., at 635-636 (citations omitted).

The State’s 1997 plan altered District 12 in several respects. By any measure, blacks no longer constitute a majority of District 12: Blacks now account for approximately 47% of the district’s total population, 43% of its voting age population, and 46% of registered voters. App. to Juris. Statement 67a, 99a. The new District 12 splits 6 counties as opposed to 10; beginning with Guilford County, the district runs in a southwestern direction through parts of Forsyth, Davidson, Rowan, Iredell, and Mecklenburg Counties, picking up concentrations of urban populations in Greensboro and High Point (both in Guilford), Winston-Salem (Forsyth), and Charlotte (Mecklenburg). (The old District 12 went through the same six counties but also included portions of Durham, Orange, and Alamance Counties east of Guilford, and parts of Gaston County west of Mecklenburg.) With these changes, the district retains only 41.6% of its previous area, id., at 153a, and the distance between its farthest points has been reduced to approximately 95 miles, id., at 105a. But while District 12 is wider and shorter than it was before, it retains its basic “snakelike” shape and continues to track Interstate 85. See generally Appendix, infra.

Appellees believed the new to be the product of an unconstitutional racial gerrymander.

They filed suit in the United States District Court for the Eastern District of North Carolina against several state officials in their official capacities seeking to enjoin elections under the State’s 1997 plan. The parties filed competing motions for summary judgment and supporting materials, and the three-judge District Court heard argument on the pending motions, but before either party had conducted discovery and without an evidentiary hearing. Over one judge’s dissent, the District Court granted appellees’ motion and entered the injunction they sought. 34 F. Supp. 2d 1029 (EDNC 1998). The majority of the court explained that “the uncontroverted material facts” showed that “District 12 was drawn to collect precincts with high racial identification rather than political identification,” that “more heavily Democratic precincts . . . were bypassed in the drawing of District 12 and included in the surrounding congressional districts,” and that “[tjhe legislature disregarded traditional districting criteria.” No. 4:96-CV-104-BO(3) (EDNC, Apr. 14, 1998), App. to Juris. Statement 21a. From these “un-controverted material facts,” the District Court concluded “the General Assembly, in redistrieting, used criteria with respect to District 12 that are facially race driven,” ibid., and thereby violated the Equal Protection Clause of the Fourteenth Amendment, id., at 22a. (Apparently because the issue was not litigated, the District Court did not consider whether District 12 was narrowly tailored to serve a compelling interest.)

The state officials filed a notice of appeal. We noted probable jurisdiction, 524 U. S. 980 (1998), and now reverse.

II

Our decisions have established that all laws that classify citizens on the basis of race, including racially gerrymandered districting schemes, are constitutionally suspect and must be strictly scrutinized. Shaw II, 517 U. S., at 904; Miller v. Johnson, 515 U. S. 900, 904-905 (1995); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). When racial classifications are explicit, no inquiry into legislative purpose is necessary. See Shaw I, 509 U. S., at 642. A facially neutral law, on the other hand, warrants strict scrutiny only if it can be proved that the law was “motivated by a racial purpose or object,” Miller, sufra, at 913, or if it is “ ‘unexplainable on grounds other than race,’ ” Shaw I, supra, at 644 (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977)); see also Miller, supra, at 905, 918. The task of assessing a jurisdiction’s motivation, however, is not a simple matter; on the contrary, it is an inherently complex endeavor, one requiring the trial court to perform a “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights, supra, at 266; see also Miller, supra, at 905, 914 (citing Arlington Heights); Shaw I, supra, at 644 (same).

Districting legislation ordinarily, if not always, classifies tracts of land, precincts, or census blocks, and is race neutral on its face. North Carolina’s 1997 plan was not atypical; appellees, therefore, were required to prove that District 12 was drawn with an impermissible racial motive — in this context, strict scrutiny applies if race was the “predominant factor” motivating the legislature’s districting decision. To carry their burden, appellees were obliged to show — using direct or circumstantial evidence, or a combination of both, see Shaw II, supra, at 905; Miller, 515 U. S., at 916 — that “the legislature subordinated traditional race-neutral dis-tricting principles, including but not limited to compactness, contiguity, and respect for political subdivisions or communities defined by actual shared interests, to racial considerations,” ibid.

Appellees offered only circumstantial evidence in support of their claim. Their evidence included maps of District 12, showing its size, shape, and alleged lack of continuity. See Appendix, infra. They also submitted evidence of the district’s low scores with respect to traditional measures of compactness and expert affidavit testimony explaining that this statistical evidence proved the State had ignored traditional districting criteria in crafting the new Twelfth Congressional District. See App. 221-251. Appellees further claimed that the State had disrespected political subdivisions and communities of interest. In support, they pointed out that under the 1997 plan, District 12 was the only one statewide to contain no undivided county and offered figures showing that District 12 gathered almost 75% of its population from Mecklenburg County, at the southern tip of the district, and from Forsyth and Guilford Counties at the northernmost part of the district. Id, at 176, 208-209.

Appellees also presented statistical and demographic evidence with respect to the precincts that were included within District 12 and those that were placed in neighboring districts. For the six subdivided counties included within District 12, the proportion of black residents was higher in the portion of the county within District 12 than the portion of the county in a neighboring district. Other maps and supporting data submitted by appellees compared the demographics of several so-called “boundary segments.” This evidence tended to show that, in several instances, the State had excluded precincts that had a lower percentage of black population but were as Democratic (in terms of registered voters) as the precinct inside District 12. Id., at 253-290; 3 Record, Doc. No. 61.

■Viewed in toto, appellees’ evidence tends to support an inference that the State drew its district lines with an impermissible racial motive — even though they presented no direct evidence of intent. Summary judgment, however, is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, All U. S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (1986). To be sure, appellants did not contest the evidence of District 12’s shape (which hardly could be contested), nor did they claim that appellees’ statistical and demographic evidence, most if not all of which appears to have been obtained from the State’s own data banks, was untrue.

The District Court nevertheless was only partially correct in stating that the material facts before it were un-controverted. The legislature’s motivation is itself a factual question. See Shaw II, 511 U. S., at 905; Miller, supra, at 910. Appellants asserted that the General Assembly drew its district lines with the intent to make District 12 a strong Democratic district. In support, they presented the after-the-fact affidavit testimony of the two members of the General Assembly responsible for developing the State’s 1997 plan. See App. to Juris. Statement 69a-84a. Those legislators further stated that, in crafting their districting law, they attempted to protect incumbents, to adhere to traditional districting criteria, and to preserve the existing partisan balance in the State’s congressional delegation, which in 1997 was composed of six Republicans and six Democrats. Ibid.

More important, we think, was the affidavit of an expert, Dr. David W. Peterson. Id., at 85a-100a. He reviewed racial demographics, party registration, and election result data (the number of people voting for Democratic candidates) gleaned from the State’s 1998 Court of Appeals election, 1998 Lieutenant Governor election, and 1990 United States Senate election for the precincts included within District 12 and those surrounding it. Unlike appellees’ evidence, which highlighted select boundary segments, appellants’ expert examined the district’s entire border — all 234 boundary segments. See id., at 92a. He recognized “a strong correlation between racial composition and party preference” so that “in precincts with high black representation, there is a correspondingly high tendency for voters to favor the Democratic Party” but that “[i]n precincts with low black representation, there is much more variation in party preference, and the fraction of registered voters favoring Democrats is substantially lower.” Id., at 91a. Because of this significant correlation, the data tended to support both a political and racial hypothesis. Therefore, Peterson focused on “divergent boundary segments,” those where blacks were greater inside District 12 but Democrats were greater outside and those where blaeks were greater outside the district but Democrats were greater inside. He concluded that the State included the more heavily Democratic precinct much more often than the more heavily black precinct, and therefore, that the data as a whole supported a political explanation at least as well as, and somewhat better than, a racial explanation. Id., at 98a; see also id., at 87a (“[T]here is at least one other explanation that fits the data as well as or better than race, and that explanation is political identification”).

Peterson’s analysis of District 12’s divergent boundary segments and his affidavit testimony that District 12 displays a high correlation between race and partisanship support an inference that the General Assembly did no more than create a district of strong partisan Democrats. His affidavit is also significant in that it weakens the probative value of appellees’ boundary segment evidence, which the District Court appeared to give significant weight. See id., at 20a-21a. Appellees’ evidence was limited to a few select precincts, see App. 253-276, whereas Peterson analyzed all 234 boundary segments. Moreover, appellees’ maps reported only party registration figures. Peterson again was more thorough, looking also at actual voting re-suits. Peterson’s more complete analysis was significant because it showed that in North Carolina, party registration and party preference do not always correspond.

political motivation explanation as true, as the District Court was required to do in ruling on appellees’ motion for summary judgment, see Anderson, 477 U. S., at 255, appellees were not entitled to judgment as a matter of law. Our prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact. See Bush v. Vera, 517 U. S. 952, 968 (1996); id., at 1001 (Thomas, J., concurring in judgment); Shaw II, supra, at 905; Miller, 515 U. S., at 916; Shaw I, 509 U. S., at 646. Evidence that blacks constitute even a supermajority in one congressional district while amounting to less than a plurality in a neighboring district will not, by itself, suffice to prove that a jurisdiction was motivated by race in drawing its district lines when the evidence also shows a high correlation between race and party preference.

Of course, exclusively on appellees’ boundary segment evidence, and appellees submitted other evidence tending to show that the General Assembly was motivated by racial considerations in drawing District 12 — most notably, District 12's shape and its lack of compactness. But in ruling on a motion for summary judgment, the nonmoving party’s evidence “is to be believed, and all justifiable inferences are to be drawn in [that party’s] favor.” Anderson, 477 U. S., at 255. While appellees’ evidence might allow the District Court to find that the State acted with an impermissible racial motivation, despite the State’s explanation as supported by the Peterson affidavit, it does not require that the court do so. All that can be said on the record before us is that motivation was in dispute. Reasonable inferences from the undisputed facts can be drawn in favor of a racial motivation finding or in favor of a political motivation finding. The District Court nevertheless concluded that race was the “predominant factor” in the drawing of the district. In doing so, it either credited appellees’ asserted inferences over those advanced and supported by appellants or did not give appellants the inference they were due. In any event, it was error in this ease for the District Court to resolve the disputed fact of motivation at the summary judgment stage. Cf. ibid. (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions”).

Outright admissions of impermissible racial motivation are infrequent and plaintiffs often must rely upon other evidence. Summary judgment in favor of the party with the burden of persuasion, however, is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact. That is not to say that summary judgment in a plaintiff’s favor will never be appropriate in a racial gerrymandering case sought to be proved exclusively by circumstantial evidence. We can imagine an instance where the uncontroverted evidence and the reasonable inferences to be drawn in the nonmoving party’s favor would not be "significantly probative” so as to create a genuine issue of fact for trial. Id., at 249-250. But this is not that case. And even if the question whether appellants had created a material dispute of fact were a close one, we think that “the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactments,” Miller, 515 U. S., at 916, would tip the balance in favor of the District Court making findings of fact. See also id., at 916-917 (“[Cjourts must also recognize . . . the intrusive potential of judicial intervention into the legislative realm, when assessing ... the adequacy of a plaintiff’s showing at the various stages of litigation and determining whether to permit discovery or trial to proceed”).

our decision, we are fully aware that the District Court is more familiar with the evidence than this Court, and is likewise better suited to assess the General Assembly’s motivations. Perhaps, after trial, the evidence will support a finding that race was the State’s predominant motive, but we express no position as to that question. We decide only that this case was not suited for summary disposition. The judgment of the District Court is reversed.

It is so ordered.

[Appendix containing North Carolina Congressional District map follows this page.]

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring in the judgment.

The disputed issue of fact in this case is whether political considerations or racial considerations provide the “primary” explanation for the seemingly irregular configuration of North Carolina’s Twelfth Congressional District. The Court concludes that evidence submitted to the District Court on behalf of the State made it inappropriate for that Court to grant appellees’ motion for summary judgment. I agree with that conclusion, but write separately to emphasize the importance of two undisputed matters of fact that are firmly established by the historical record and confirmed by the record in this case.

First, bizarre configuration is the traditional hallmark of the political gerrymander. This obvious proposition is supported by the work product of Elbridge Gerry, by the “swan” designed by New Jersey Republicans in 1982, see Karcher v. Daggett, 462 U. S. 725, 744, 762-763 (1983), and by the Indiana plan reviewed in Davis v. Bandemer, 478 U. S. 109, 183, 185 (1986). As we learned in Gomillion v. Lightfoot, 364 U. S. 339 (1960), a racial gerrymander may have an equally “uncouth” shape. See id., at 340, 348. Thus, the shape of the congressional district at issue in this ease provides strong evidence that either political or racial factors motivated its architects, but sheds no light on the question of which set of factors was more responsible for subordinating any of the State’s “traditional” districting principles.

Second, as the Presidential campaigns conducted by Strom Thurmond in 1948 and by George Wallace in 1968, and the Senate campaigns conducted more recently by Jesse Helms, have demonstrated, a great many registered Democrats in the South do not always vote for Democratic candidates in federal elections. The Congressional Quarterly recently recorded the fact that in North Carolina “Democratic voter registration edges ... no longer translate] into success in statevride or national races. In recent years, conservative white Democrats have gravitated toward Republican candidates.” See Congressional Quarterly Inc., Congressional Districts in the 1990s, p. 549 (1993). This voting pattern has proved to be particularly pronounced in voting districts that contain more than about one-third African-American residents. See Pildes, The Polities of Race, 108 Harv. L. Rev. 1359, 1382-1386 (1995). There was no need for expert testimony to establish the proposition that “in North Carolina, party registration and party preference do not always correspond.” Ante, at 551.

Indeed, for me the most remarkable feature of the District Court’s erroneous decision is that it relied entirely on data concerning the location of registered Democrats and ignored the more probative evidence of how the people who live near the borders of District 12 actually voted in recent elections. That evidence not only undermines and rebuts the inferences the District Court drew from the party registration data, but also provides strong affirmative evidence that is thoroughly consistent with the sworn testimony of the two members of the state legislature who were most active in drawing the boundaries of District 12. The affidavits of those members, stating that district lines were drawn according to election results, not voter registration, are uncontradicted. And almost all of the majority-Democrat registered precincts that the state legislature excluded from District 12 in favor of precincts with higher black populations produced significantly less dependable Democratic results and actually voted for one or more Republicans in recent elections.

The record supports the conclusion that the most loyal Democrats living near the borders of District 12 “happen to be black Democrats,” see ibid., and I have no doubt that the legislature was conscious of that fact when it enacted this apportionment plan. But everyone agrees that that fact is not sufficient to invalidate the district. Cf. ante, at 551-552. That fact would not even be enough, under this Court’s decisions, to invalidate a governmental action, that, unlike the action at issue here, actually has an adverse impact on a particular racial group. See, e. g., Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979) (holding that the Equal Protection Clause is implicated only when “a state legislature] selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group”); Washington v. Davis, 426 U. S. 229 (1976); Hernandez v. New York, 500 U. S. 352, 375 (1991) (O’Connor, J., concurring in judgment) (“No matter how closely tied or significantly correlated to race the explanation for [a governmental action] may be, the [action] does not implicate the Equal Protection Clause unless it is based on race”).

Accordingly, appellees’ evidence may include nothing more than (i) a bizarre shape, which is equally consistent with either political or racial motivation, (ii) registration data, which are virtually irrelevant when actual voting results were available and which point in a different direction, and (i:i) knowledge of the racial composition of the district. Because we do not have before us the question whether the District Court erred in denying the State’s motion for summary judgment, I need not decide whether that circumstantial evidence even raises an inference of improper motive. It is sufficient at this stage of the proceedings to join in the Court’s judgment of reversal, which I do.

       In response to the District Court’s decision and order, the State enacted yet another districting plan, 1998 N. C. Sess. Laws, eh. 2 (codified at N. C. Gen. Stat. § 163-201(a) (Supp. 1998)), which revised Districts 5,6,9, 10, and 12. Under the State’s 1998 plan, no part of Guilford County is located within District 12 and all of Rowan County falls within the district’s borders. The 1998 plan also modified District 12’s boundaries in For-syth, Davidson, and Iredell Counties. See ibid,.; see also Cromartie v. Hunt, No. 4:96-CV-104-BO(3) (EDNC, June 22,1998), App. to Juris. Statement 178a-179a. The State’s 1998 congressional elections were conducted pursuant to the 1998 plan with the District Court’s approval. Brief for Appellees 6, n. 13; App. to Juris. Statement 179a. Because the State’s 1998 law provides that the State will revert to the 1997 districting plan upon a favorable decision of this Court, see 1998 N. C. Sess. Laws, ch. 2, § 1.1, this case is not moot, see City of Mesquite v. Aladdin’s Castle, Inc., 455 U. S. 283, 288-289, and n. 11 (1982); Zablocki v. Redhail, 434 U. S. 374, 382, n. 9 (1978); Bullock v. Carter, 405 U. S. 134, 141-142, n. 17 (1972).

       Cf. Reno v. Bossier Parish School Bd., 520 U. S. 471, 488 that, in cases brought under §5 of the Voting Rights Act of 1965, the Arlington Heights framework should guide a court’s inquiry into whether a jurisdiction had a discriminatory purpose in enacting a voting change); Rogers v. Lodge, 458 U. S. 613, 618 (1982) (same framework is to be used in evaluating vote dilution claims brought under the Equal Protection Clause).

       Justice Stevens asserts that proof of a district’s “bizarre configuration” gives rise equally to an inference that its architects were motivated by politics or race. Post, at 555. We do not necessarily quarrel with the proposition that a district’s unusual shape can give rise to'an inference of political motivation. But we doubt that a bizarre shape equally supports a political inference and a racial one. Some districts, we have said, are “so highly irregular that [they] rationally cannot be understood as anything other than an effort to ‘segregate]... voters’ on the basis of race.” Shaw 1,509 U. S. 630, 646-647 (1993) (quoting Gomillion v. Lightfoot, 364 U. S. 339, 341 (I960)).

       In the portion of Guilford Comity in District 12, black residents constituted 51.5% of the population, while in the District 6 portion, only 10.2% cf the population was black. App. 179. Appellees’ evidence as to the other counties showed: Forsyth District 12 was 72.9% black while Forsyth District 5 was 11.1% black; Davidson District 12 was 14.8% black while Davidson District 6 was 4.1% black; Rowan District 12 was 35.6% black and Rowan District 6 was 7.7% black; Iredell District 12 was 24.3% black while Iredell District 10 was 10.1% black; Mecklenburg District 12 was 51.9% black but Mecklenburg District 9 was only 7.2% black. Id, at 179-181.

       Boundary segments, we are told, are those sections along the district’s perimeter that separate outside precincts from inside precincts. In other words, the boundary segment is the district borderline itself; for each segment, the relevant comparison is between the inside precinct that touches the segment and the corresponding outside precinct. See App. to Juris. Statement 92a; Brief for United States as Amicus Curiae 20, n. 7.

       In addition to the evidence that appellants presented to the District Court, they have submitted with their reply brief maps showing that in almost all of the majority-Democrat registered precincts surrounding those portions of District 12 in Guilford, Forsyth, and Mecklenburg Counties, Republican candidates were elected in at least one of the three elections considered by the state defendants’ expert. Reply Brief for State Appellants 4-8; App. to Reply Brief for State Appellants la-10a. Appellants apparently did not put this additional evidence before the District Court prior to the court’s decision on the competing motions for summary judgment. They claim excuse in that appellees filed their maps showing partisan registration at the “eleventh hour.” Brief for State Appellants 10, n. 13. We are not sure why appellants believe the timing of appellees’ filing to be an excuse. The District Court set an advance deadline for filings in support of the competing motions for summary judgment, so appellants could not have been caught by surprise. And given that appellants not only had to respond to appellees’ evidence, but also had their own motion for summary judgment to support, one would think that the District Court would not have needed to afford them “an adequate opportunity to respond.” Ibid.

       This Court has recognized, however, that political gerrymandering claims are justiciable under the Equal Protection Clause although we were not in agreement as to the standards that would govern such a claim. See Davis v. Bandemer, 478 U. S. 109, 127 (1986).

      We note that Bush v. Vera, 517 U.S. 952 (1996), Shaw II, 517 U.S. 899 (1996), and Miller v. Johnson, 515 U.S. 900 (1995), each came to us on a developed record and after the respective District Courts had made findings of fact. Bush v. Vera, supra, at 959; Vera v.
        Richards, 861 F. Supp. 1304, 1311-1331, 1336-1344 (SD Tex. 1994); Shaw II, supra, at 903; Shaw v. Hunt, 861 F. Supp. 408, 456-473 (EDNC 1994); Miller v. Johnson, supra, at 910; Johnson v. Miller, 864 F. Supp. 1354, 1360-1369 (SD Ga. 1994).

       Just as summary judgment is rarely granted in a plaintiff’s favor in cases where the issue is a defendant’s racial motivation, such as disparate treatment suits under Title VII or racial discrimination claims under 42 U. S. C. § 1981, the same holds true for racial gerrymandering claims of the sort brought here. See generally 10B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§2730,2732.2 (1998).

      I include the last phrase because the Court has held that a state legislature may make race-based districting decisions so long as those decisions do not subordinate (to some uncertain degree) ‘“traditional... districting principles.”’ See Shaw v. Hunt, 517 U. S. 899, 907 (1996); Miller v. Johnson, 515 U. S. 900, 916 (1995) (holding that racial considerations are subject to strict scrutiny when they subordinate “traditional race-neutral district-ing principles”); id., at 928 (O’Connob, J., concurring) (“To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices”). In this regard, I note that neither the Court’s opinion nor the District Court’s opinion analyzes the question whether the “traditional districting principle” of joining communities of interest is subordinated in the present Twelfth District. A district may lack compactness or contiguity — due, for example, to geographic or demographic reasons — yet still serve the traditional districting goal of joining communities of interest.

       The Congressional Quarterly’s the authoritative source regarding the political and demographic makeup of the congressional districts resulting from each decennial census, is even more revealing when one examines its district-by-district analysis of North Carolina’s partisan voting patterns. With regard to the original First District, which was just over 50 percent black, the book remarks: “The white voters of the 1st claim the Democratic roots of their forefathers, but often support GOP candidates at the state and national level. A fair number are ‘Jessecrats,’ conservative Democratic supporters of GOP Sen. Jesse Helms.” Congressional Quarterly, at 550. The book shows that while the Second and Third Districts have “significant Democratic voter registration edges,” Republican candidates actually won substantial victories in four of five recent elections. See id., at 549,552-553. Statistics also demonstrate that a majority of voters in the Eleventh District consistently vote for Republicans “despite a wide Democratic registration advantage.” Id., at 565. Although the book exhaustively analyzes the statistical demographies of each congressional district, listing even the number of cable television subscribers in each district, it does not provide voter registration statistics.

       See App. to Juris. Statement 73a (affidavit of Sen. Roy A. Cooper III, Chairman of Senate Redistrieting Committee); id., at 81a-82a (affidavit of Rep. W. Edwin McMahan, Chairman of House Redistrieting Committee).


source: Caselaw Access Project

author: Justice Thomas Justice Souter, Justice Stevens,

license: Public Domain

text:
    FLORIDA v. WHITE
    No. 98-223.
    Argued March 23, 1999
    Decided May 17, 1999

      Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 566. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 567.

      Carolyn Snurkowski, Assistant Deputy Attorney General of Florida, argued the cause for petitioner. With her on the briefs were Robert A. Butterworth, Attorney General, and Daniel A. David, Assistant Attorney General.

      Malcolm L. Stewart argued the States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Kathleen A. Felton.

      David P. Gauldin argued the cause for respondent. With him on the brief were David A, Davis and Michael J. Minerva.

      A brief of amici curiae urging reversal was filed for the State of Arkansas et al. by Winston Bryant, Attorney General of Arkansas, David R. Raupp, Senior Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Lock-yer of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Vemiero of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Mike Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, Mark L. Earley
        of Virginia, Christine 0. Gregoire of Washington, and Gay Woodhouse of Wyoming.

        Richard J. Troberman and Lisa B. Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice Thomas

delivered the opinion of the Court.

The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act’s provisions, may be seized and potentially forfeited. In this ease, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not.

I

On three occasions in July and August 1993, police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his ear was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), Fla. Stat. §932.701 et seq. (1997). Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August 1993. At the same time, the arresting officers, without securing a warrant, seized respondent’s automobile in accordance with the provisions of the Act. See § 932.703(2)(a). They seized the vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law.

At his trial on the possession charge, motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the “fruit of the poisonous tree.” The trial court initially reserved ruling on respondent’s motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. 680 So. 2d 550 (1996). Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent’s argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Id., at 554. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the war-rantless seizure of an automobile under the Act violated the Fourth Amendment. Id., at 555.

In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal’s opinion, and remanded. 710 So. 2d 949, 955 (1998). The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property that has been used in violation of the Act. Ibid. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United States v. Valdes, 876 F. 2d 1554 (1989), and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U. S. C. §881, which is similar to Florida’s. See United States v. Decker, 19 F. 3d 287 (CA6 1994) (per curiam); United States v. Pace, 898 F. 2d 1218, 1241 (CA7 1990); United States v. One 1978 Mercedes Benz, 711 F. 2d 1297 (CA5 1983); United States v. Kemp, 690 F. 2d 397 (CA4 1982); United States v. Bush, 647 F. 2d 357 (CA3 1981). But see United States v. Dixon, 1 F. 3d 1080 (CA10 1993); United States v. Lasanta, 978 F. 2d 1300 (CA2 1992); United States v. Linn, 880 F. 2d 209 (CA9 1989). We granted certiorari, 525 U. S. 1000 (1998), and now reverse.

► — 1

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and further provides that "no Warrants shall issue, but upon probable cause.” U. S. Const., Arndt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; Carroll v. United States, 267 U. S. 182, 149 (1925) (“The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens”).

In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. Id., at 150-151 (citing Act of July 81,1789, §§24,29,1 Stat. 43; Act of Aug. 4,1790, §50,1 Stat. 170; Act of Feb. 18, 1793, §27, 1 Stat. 315; Act of Mar. 2, 1799, §§68-70, 1 Stat. 677, 678). These enactments led us to conclude that “contemporaneously with the adoption of the Fourth Amendment,” Congress distinguished “the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.” 267 U. S., at 151.

The Florida Supreme Court recognized that under Carroll, the police could search respondent’s car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent’s vehicle itself also was appropriate under Carroll and its progeny. It reasoned that “[tjhere is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen’s automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity.” 710 So. 2d, at 953. We disagree.

The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent’s ear did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked probable cause to believe that respondent’s car contained contraband, see 710 So. 2d, at 953, they certainly had probable cause to believe that the vehicle itself was contraband under Florida law. Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See 267 U. S., at 150-152; see also California v. Carney, 471 U. S. 386, 390 (1985); South Dakota v. Opperman, 428 U. S. 364, 367 (1976). This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure. Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 1 Stat. 43, 46; 1 Stat. 170, 174; 1 Stat. 677, 678, 692.

In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect’s home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United States v. Watson, 423 U. S. 411, 416-424 (1976). In explaining this rule, we have drawn upon the established “distinction between a warrantless seizure in an open area and such a seizure on private premises.” Payton v. New York, 445 U. S. 573, 587 (1980); see also id., at 586-587 (“It is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant”). The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing Corp. v. United States, 429 U. S. 338 (1977). There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. Id., at 351. We concluded that they did not, reasoning that “[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy.” Ibid. Here, because the police seized respondent’s vehicle from a public area — respondent’s employer’s parking lot — the warrantless seizure also did not involve any invasion of respondent’s privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent’s automobile in these circumstances.

The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Justice Souter,

with whom Justice Breyer joins, concurring.

I join the Court’s opinion subject to a qualification against reading our holding as a general endorsement of warrantless seizures of anything a State chooses to call “contraband,” whether or not the property happens to be in public when seized. The Fourth Amendment does not concede any talis-manic significance to use of the term “contraband” whenever a legislature may resort to a novel forfeiture sanction in the interest of law enforcement, as legislatures are evincing increasing ingenuity in doing, cf., e. g., Bennis v. Michigan, 516 U. S. 442, 443-446 (1996); id., at 458 (Stevens, J., dissenting); United States v. James Daniel Good Real Property, 510 U. S. 43, 81-82, and n. 1 (1993) (Thomas, J., concurring in part and dissenting in part) (expressing concern about the breadth of new forfeiture statutes). Moreover, G. M. Leasing Corp. v. United States, 429 U. S. 338 (1977) (upon which we rely today), endorsed the public character of a warrantless seizure scheme by reference to traditional enforcement of government revenue laws, id., at 351-352, and n. 18 (citing, e. g., Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856)), and the legality of seizing abandoned contraband in public view, 429 U. S., at 352 (citing Hester v. United States, 265 U. S. 57 (1924)).

Justice Stevens,

with whom Justice Ginsburg joins, dissenting.

During the summer of 1993, Florida police obtained evidence that Tyvessel White was engaged in the sale and delivery of narcotics, and that he was using his car to facilitate the enterprise. For reasons unexplained, the police neither arrested White at that point nor seized his automobile as an instrumentality of his alleged narcotics offenses. Most important to the resolution of this case, the police did not seek to obtain a warrant before seizing White’s car that fall — over two months after the last event that justified the seizure. Instead, after arresting White at work on an unrelated matter and obtaining his car keys, the officers seized White’s automobile without a warrant from his employer’s parking lot and performed an inventory search. The Florida Supreme Court concluded that the seizure, which took place absent exigent circumstances or probable cause to believe that narcotics were present, was invalid. 710 So. 2d 949 (1998).

In 1971, after advising us that of the Fourth Amendment’s fundamental guarantee,” Justice Stewart made this comment on what was then settled law:

“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’ ” Coolidge v. New Hampshire, 403 U. S. 443, 453, 454-455 (footnotes omitted).

Because the Fourth Amendment plainly “protects property as well as privacy” and seizures as well as searches, Soldal v. Cook County, 506 U. S. 56, 62-64 (1992), I would apply to the present ease our longstanding warrant presumption. In the context of property seizures by law enforcement authorities , the presumption might be overcome more easily in the absence of an accompanying privacy or liberty interest. Nevertheless, I would look to the warrant clause as a measure of reasonableness in such cases, United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297, 315 (1972), and the circumstances of this case do not convince me that the role of a neutral magistrate was dispensable.

expressly disavow the warrant presumption urged by White and followed by the Florida Supreme Court, but its decision suggests that the exceptions have all but swallowed the general rule. To defend the officers’ warrantless seizure, the State points to cases establishing an “automobile exception” to our ordinary demand for a warrant before a lawful search may be conducted. Each of those cases, however, involved searches of automobiles for contraband or temporary seizures of automobiles to effect such searches. Such intrusions comport with the practice of federal customs officers during the Nation’s early history on which the majority relies, as well as the practicalities of modern life. But those traditions and realities are weak support for a warrantless seizure of the vehicle itself, months after the property was proverbially tainted by its physical proximity to the drug trade, and while the owner is safely in police custody.

The stated purposes for allowing warrantless vehicle searches are likewise insufficient to validate the seizure at issue, whether one emphasizes the ready mobility of automobiles or the pervasive regulation that diminishes the owner’s privacy interests in such property. No one seriously suggests that the State’s regulatory regime for road safety makes acceptable such unchecked and potentially permanent seizures of automobiles under the State’s criminal laws. And, as the Florida Supreme Court cogently explained, an exigent circumstance rationale is not available when the seizure is based upon a belief that the automobile may have been used at some time in the past to assist in illegal activity and the owner is already in custody. Moreover, the state court’s conclusion that the warrant process is a sensible protection from abuse of government power is bolstered by the inherent risks of hindsight at postseizure hearings and law enforcement agencies’ pecuniary interest in the seizure of such property. See Fla. Stat. § 932.704(1) (1997); cf. United States v. James Daniel Good Real Property, 510 U. S. 43, 55-56 (1993).

Were we confronted with property that Florida deemed unlawful for private citizens to possess regardless of purpose, and had the State relied on the plain-view doctrine, perhaps a warrantless seizure would have been defensible. See Horton v. California, 496 U. S. 128 (1990); Arizona v. Hicks, 480 U. S. 321, 327 (1987) (citing Payton v. New York, 446 U. S. 673 (1980)). But “ ‘[t]here is nothing even remotely criminal in possessing an automobile,’” Austin v. United States, 609 U. S. 602, 621 (1993) (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 699 (1965)); no serious fear for officer safety or loss of evidence can be asserted in this case considering the delay and circumstances of the seizure; and only the automobile exception is at issue, 710 So. 2d, at 952; Brief for Petitioner 6, 28.

seems to me that the State’s treatment of certain vehicles as “contraband” based on past use provides an added reason for insisting on an appraisal of the evidence by a neutral magistrate, rather than a justification for expanding the discretionary authority of the police. Unlike a search that is contemporaneous with an officer’s probable-cause determination, Horton, 496 U. S., at 130-131, a belated seizure may involve a serious intrusion on the rights of innocent persons with no connection to the earlier offense. Cf. Bennis v. Michigan, 516 U. S. 442 (1996). And a seizure supported only by the officer’s conclusion that at some time in the past there was probable cause to believe that the car was then being used illegally is especially intrusive when followed by a routine and predictable inventory search— even though there may be no basis for believing the car then contains any contraband or other evidence of wrongdoing.

Of course, requiring police officers to cases such as the one before us will not allay every concern private property owners might have regarding government discretion and potentially permanent seizures of private property under the authority of a State’s criminal laws. Had the officers in this case obtained a warrant in July or August, perhaps they nevertheless could or would have executed that warrant months later; and, as the Court suggests, ante, at 565, n. 4, delay between the basis for a seizure and its effectuation might support a Fourth Amendment objection whether or not a warrant was obtained. That said, a warrant application interjects the judgment of a neutral deci-sionmaker, one with no pecuniary interest in the matter, see Connolly v. Georgia, 429 U. S. 245, 250-251 (1977) (per curiam), before the burden of obtaining possession of the property shifts to the individual. Knowing that a neutral party will be involved before private property is seized can only help ensure that law enforcement officers will initiate forfeiture proceedings only when they are truly justified. A warrant requirement might not prevent delay and the attendant opportunity for official mischief through discretionary timing, but it surely makes delay more tolerable.

a exception, the presumption should prevail. Indeed, the particularly troubling aspect of this ease is not that the State provides a weak excuse for failing to obtain a warrant either before or after White’s arrest, but that it offers us no reason at all. The justification cannot be that the authorities feared their narcotics investigation would be exposed and hindered if a warrant had been obtained. Ex parte warrant applications provide neutral review of police determinations of probable cause, but such procedures are by no means public. And the officers had months to take advantage of them. On this record, one must assume that the officers who seized White’s car simply preferred to avoid the hassle of seeking approval from a judicial officer. I would not permit bare convenience to overcome our established preference for the warrant process as a check against arbitrary intrusions by law enforcement agencies “engaged in the often competitive” — and, here, potentially lucrative — “enterprise of ferreting out crime.” Johnson v. United States, 333 U. S. 10, 14-15 (1948).

agree Florida Supreme Court’s judgment that this seizure was not reasonable without a warrant, I respectfully dissent.

       That Act provides, in relevant part: “Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited.” Fla. Stat. § 932.703(l)(a) (1997).

       Nothing in the Act requires the police to obtain a warrant prior to seizing a vehicle. See State v. Pomerance, 434 So. 2d 329, 330 (Fla. App. 1983). Rather, the Act simply provides that “[plersonal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure . . . that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act." §932.703(2)(a).

       The Aet defines "contraband” to include any "vehicle of any kind,... which was used... as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony.” § 932.701(2)(a)(5).

         At oral argument, respondent contended that the delay between the time that the police developed probable cause to seize the vehicle and when the seizure actually occurred undercuts the argument that the war-rantless seizure was necessary to prevent respondent from removing the car out of the jurisdiction. We express no opinion about whether excessive delay prior to a seizure could render probable cause stale, and the seizure therefore unreasonable under the Fourth Amendment.

      The Florida Supreme Court’s opinion could be read to suggest that due process protections in the Florida Constitution might independently require a warrant or other judicial process before seizure under the Florida Contraband Forfeiture Act. See 710 So. 2d, at 952 (discussing Department of Law Enforcement v. Real Property, 588 So. 2d 957 (1991)). However, the certified question put to that court referred only to the Fourth Amendment to the United States Constitution. 710 So. 2d, at 950. Thus, a viable federal question was presented for us to decide on certiorari, but of course we have no authority to determine the limits of state constitutional or statutory safeguards.

        E. g., United States v. Mick, 407 U.S. 297, 315-318 (1972) (“Though the Fourth Amendment speaks broadly of ‘unreasonable searches and seizures,’ the definition of ‘reasonableness’ turns, at least in part, on the more specific commands of the warrant clause”); Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (1971); Katz v. United States, 389 U. S. 347, 357 (1967); Johnson v. United

        States, 333 U. S. 10, 13-14 (1948); Harris v. United States, 331 U. S. 145, 162 (1947) (Frankfurter, J., dissenting) (“[Wjith minor and severely confined exceptions, inferentially a part of the Amendment, every search and seizure is unreasonable when made without a magistrate’s authority expressed through a validly issued warrant”), overruled in part by Chimel v. California, 395 U. S. 752 (1969); see also Shadwick v. Tampa, 407 U. S. 345, 348 (1972) (noting “the now accepted fact that someone independent of the police and prosecution must determine probable cause”); Wong Sun v. United States, 371 U. S. 471, 481-482 (1963).

       See, e. g., Carroll v. United States, 267 U. S. 132, 153 (1925) (where the police have probable cause, “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant”); United States v. Ross, 456 U. S. 798, 820, n. 26, 825 (1982) (“During virtually the entire history of our country — whether contraband was transported in a horse-drawn carriage, a 1921 roadster, or a modern automobile — it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search”); Wyoming v. Houghton, ante, at 300-301; Pennsylvania v. Ladron, 518 U. S. 938, 940 (1996) (per curiam) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more”).

       710 So. 2d 949, 953-954 (Fla. 1998) (“There simply was no concern presented here that an opportunity to seize evidence would be missed because of the mobility of the vehicle. Indeed, the entire focus of the seizure here was to seize the vehicle itself as a prize because of its alleged prior use in illegal activities, rather than to search the vehicle for contraband known to be therein, and that might be lost if not seized immediately”). The majority notes, ante, at 565, n. 4, but does not confront, the argument that the mobility of White’s vehicle was not a substantial governmental concern in light of the delay between establishing probable cause and seizure.

       There is some force to the majority's reliance on United States v. Watson, 423 U. S. 411 (1976), which held that no warrant is required for felony arrests made in public. Ante, at 565-566. With respect to the seizures at issue in Watson, however, I consider the law enforcement and public safety interests far more substantial, and the historical and legal traditions more specific and engrained, than those present on the facts of this case. See 423 U. S., at 415-424; id., at 429 (Powell, J., concurring) (“[Ljogic sometimes must defer to history and experience”).

       The Court’s reliance on G. M. Leasing Corp. v. United States, 429 U. S. 838 (1977), is misplaced. The seizure in that case was supported by an earlier tax assessment that was "given the force of a judgment.” Id., at 352, n. 18 (internal quotation marks omitted). We emphasized that the owner of the automobiles in question lacked a privacy interest, but he had also lost any possessory interest in the property by way of the prior judgment. In this case, despite plenty of time to obtain a warrant that would provide similar preseizure authority for the police, they acted entirely on their own assessment of the probative force of evidence relating to earlier events. In addition, White’s property interests in his car were apparently not extinguished until, at the earliest, the seizure took place. See Fla. Stat. §§932.703(1)(c)(d) (1997) (the State acquires rights, interest, and title in contraband articles at the time of seizure, and the seizing agency may not use the seized property until such rights, interest, and title are “perfected” in accordance with the statute); §932.704(8); Soldal v. Cook County, 506 U. S. 56, 63-64 (1992). This statutory scheme and its aims, see Fla. Stat. §932.704(1) (1997), also distinguish more mundane and temporary vehicle seizures performed for regulatory purposes and immediate public needs, such as a tow from a no-parking zone. No one contends that a warrant is necessary in that case.


author: Justice Ginsburg

text:
    RUHRGAS AG v. MARATHON OIL CO. et al.
    No. 98-470.
    Argued March 22, 1999
    Decided May 17, 1999

      Ginsburg, J., delivered the opinion for a unanimous Court.

      Charles Alan Wright argued the cause for petitioner. With him on the briefs were Ben H. Sheppard, Jr., Harry M. Reasoner, Guy S. Lipe, and Arthur R. Miller.

      Clifton T Hutchinson argued the cause for respondents. With him on the brief were J. Gregory Taylor, David J. Schenck, and David L. Shapiro.

        Brian J. Serr filed a brief for the Conference of Chief Justices as amicus curiae urging affirmance.

   Justice Ginsburg

delivered the opinion of the Court.

This case concerns the authority of the federal courts to adjudicate controversies. Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court’s decision will bind them. In Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), this Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections “where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied.” Id., at 93. Recalling “a long and venerable line of our eases,” id., at 94, Steel Co. reiterated: “The requirement that jurisdiction be established as a threshold matter . . . is ‘inflexible and without exception,’ ” id., at 94-95 (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884)); for “[¿jurisdiction is power to declare the law,” and “‘[wjithout jurisdiction the court cannot proceed at all in any cause,’ ” 523 U. S., at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). The Court, in Steel Co., acknowledged that “the absolute purity” of the jurisdiction-first rule had been diluted in a few extraordinary eases, 523 U. S., at 101, and Justice O’Connor, joined by Justice Kennedy, joined the majority on the understanding that the Court’s opinion did not catalog “an exhaustive list of circumstances” in which exceptions to the solid rule were appropriate, id., at 110.

Steel Co. is the backdrop for the issue now before us: If, as Steel Co. held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks “[wjhether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction.” Pet. for Cert. i.

We hold that in cases court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry. The proceeding before us is such a ease.

I

The underlying controversy stems from a venture to produce gas in the Heimdal Field of the Norwegian North Sea. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired Marathon Petroleum Company (Norway) (MPCN) and respondent Marathon Petroleum Norge (Norge). See App. 26. Before the acquisition, Norge held a license to produce gas in the Heimdal Field; following the transaction, Norge assigned the license to MPCN. See Record, Exhs. 61 and 62 to Document 64. In 1981, MPCN contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. See Record, Exh. 1 to Document 63, pp. 90, 280. The parties’ agreement was incorporated into the Heimdal Gas Sales Agreement (Heimdal Agreement), which is “governed by and construed in accordance with Norwegian Law,” Record, Exh. B, Tab 1 to Pet. for Removal, Heimdal Agreement, p. 102; disputes thereunder are to be “exclusively and finally ... settled by arbitration in Stockholm, Sweden, in accordance with” International Ghamber of Commerce rules, id., at 100.

h — I h — i

Marathon Oil Company, Marathon International Oil Company, and Norge (collectively, Marathon) filed this lawsuit against Ruhrgas in Texas state court on July 6, 1995, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. See App. 38-40. Marathon Oil Company and Marathon International Oil Company alleged that Ruhrgas and the other European buyers induced them with false promises of “premium prices” and guaranteed pipeline tariffs to invest over $300 million in MPGN for the development of the Heimdal Field and the erection of a pipeline to Ruhrgas’ plant in Germany. See id., at 26-28; Brief for Respondents 1-2. Norge alleged that Ruhrgas’ effective monopolization of the Heimdal gas diminished the value of the license Norge had assigned to MPCN. See App. 31, 33, 357; Brief for Respondents 2. Marathon asserted that Ruhrgas had furthered its plans at three meetings in Houston, Texas, and through a stream of correspondence directed to Marathon in Texas. See App. 229, 233.

Southern District of Texas. See 145 F. 3d 211, 214 (CA5 1998). In its notice of removal, Ruhrgas asserted three bases for federal jurisdiction: diversity of citizenship, see 28 U. S. C. § 1332 (1994 ed. and Supp. Ill), on the theory that Norge, the only nondiverse plaintiff, had been fraudulently joined; federal question, see §1331, because Marathon’s claims “raise[dj substantial questions of foreign and international relations, which are incorporated into and form part of the federal common law,” App. 274; and 9 U. S. C. §205, which authorizes removal of cases “relating] to” international arbitration agreements. See 145 F. 3d, at 214-215; 115 F. 3d 315, 319-321 (CA5), vacated and rehearing en banc granted, 129 F. 3d 746 (1997). Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. See 145 F. 3d, at 215.

After permitting Court dismissed the case for lack of personal jurisdiction. See App. 455. In so ruling, the District Court relied on Fifth Circuit precedent allowing district courts to adjudicate personal jurisdiction without first establishing subject-matter jurisdiction. See id., at 445. Texas’ long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (1997), authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution. See App. 446; Kawasaki Steel Corp. v. Middleton, 699 S. W. 2d 199, 200 (Tex. 1985). The District Court addressed the constitutional question and concluded that Ruhrgas’ contacts with Texas were insufficient to support personal jurisdiction. See App. 445-454. Finding “no evidence that Ruhrgas engaged in any tortious conduct in Texas,” id., at 450, the court determined that Marathon’s complaint did not present circumstances adequately affiliating Ruhrgas with Texas, see id., at 448.

A panel of the Court of Appeals for the Fifth Circuit concluded that “respec[t]” for “the proper balance of federalism” impelled it to turn first to “the formidable subject matter jurisdiction issue presented.” 115 F. 3d, at 318. After examining and rejecting each of Ruhrgas’ asserted bases of federal jurisdiction, see id., at 319-321, the Court of Appeals vacated the judgment of the District Court and ordered the case remanded to the state court, see id., at 321. This Court denied Ruhrgas’ petition for a writ of certiorari, which was limited to the question whether subject-matter jurisdiction existed under 9 U. S. C. § 205. See 522 U. S. 967 (1997).

The Fifth Circuit, on its own motion, granted rehearing en banc, thereby vacating the panel decision. See 129 F. 3d 746 (1997). In a 9-to-7 decision, the en banc court held that, in removed cases, district courts must decide issues of subject-matter jurisdiction first, reaching issues of personal jurisdiction “only if subject-matter jurisdiction is found to exist.” 145 F. 3d, at 214. Noting Steel Co.’s instruction that subject-matter jurisdiction must be “‘established as a threshold matter,’ ” 145 F. 3d, at 217 (quoting 523 U. S., at 94), the Court of Appeals derived from that decision “counsel against” recognition of judicial discretion to proceed directly to personal jurisdiction. 145 F. 3d, at 218. The court limited its holding to removed eases; it perceived in those cases the most grave threat that federal courts would “usur[p]... state courts’ residual jurisdiction.” Id., at 219.

Writing for the seven dissenters, Judge Higginbotham agreed that subject-matter jurisdiction ordinarily should be considered first. See id., at 231. If the challenge to personal jurisdiction involves no complex state-law questions, however, and is more readily resolved than the challenge to subject-matter jurisdiction, the District Court, in the dissenters’ view, should take the easier route. See ibid. Judge Higginbotham regarded the District Court’s decision dismissing Marathon’s case as illustrative and appropriate: While Ruhrgas’ argument under 9 U. S. C. § 205 presented a difficult issue of first impression, its personal jurisdiction challenge raised “[n]o substantial questions of purely state law,” and “could be resolved relatively easily in [Ruhrgas’] favor.” 145 F. 3d, at 232-233.

We granted certiorari, 525 U. S. 1039 (1998), to resolve a conflict between the Circuits and now reverse.

HH HH HH

Steel Co. held that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a ease. “For a court to pronounce upon [the merits] when it has no jurisdiction to do so,” Steel Co. declared, “is ... for a court to act ultra vires.” 523 U. S., at 101-102. The Fifth Circuit incorrectly read Steel Co. to teach that subject-matter jurisdiction must be found to exist, not only before a federal court reaches the merits, but also before personal jurisdiction is addressed. See 145 F. 3d, at 218.

A

The Court of Appeals accorded priority to the requirement of subject-matter jurisdiction because it is nonwaivable and delimits federal-court power, while restrictions on a court’s jurisdiction over the person are waivable and protect individual rights. See id., at 217-218. The character of the two jurisdictional bedrocks unquestionably differs. Subject-matter limitations on federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level. See Steel Co., 523 U. S., at 94-95; Fed. Rule Civ. Proc. 12(h)(3) (“Whenever it appears . .. that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”); 28 U. S. C. § 1447(c) (1994 ed., Supp. Ill) (“If at any time before final judgment [in a removed case] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

Personal jurisdiction, on the other striction on judicial power ... as a matter of individual liberty.” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court’s exercise of adjudicatory authority. See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person waivable); Insurance Corp. of Ireland, 456 U. S., at 703 (same).

These distinctions do not mean that diction is ever and always the more “fundamental.” Personal jurisdiction, too, is “an essential element of the jurisdiction of a district . . . court,” without which the court is “powerless to proceed to an adjudication.” Employers Reinsurance Corp. v. Bryant, 299 U. S. 374, 382 (1937). In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies — lack of complete diversity — rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by 28 U. S. C. § 1332 (1994 ed. and Supp. Ill), but not by Article III, see State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530-531 (1967), is absent. In contrast, Ruhrgas relies on the constitutional safeguard of due process to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland, 456 U. S., at 702 (“The requirement that a court have personal jurisdiction flows ... from the Due Process Clause.”).

While Steel Co. reasoned that subjeet-matter necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues. “[A] court that dismisses on . . . non-merits grounds such as . . . personal jurisdiction, before finding subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Mansfield and Steel Company.” In re Papandreou, 139 F. 3d 247, 255 (CADC 1998). It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel Co., district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see Moor v. County of Alameda, 411 U. S. 693, 715-716 (1973), or abstain under Younger v. Harris, 401 U. S. 37 (1971), without deciding whether the parties present a case or controversy, see Ellis v. Dyson, 421 U. S. 426, 433-434 (1975). See Steel Co., 523 U. S., at 100-101, n. 3; cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 66-67 (1997) (pretermitting challenge to appellants’ standing and dismissing on mootness grounds).

B

Maintaining that subject-matter jurisdiction must be decided first even when the litigation originates in federal court, see Tr. of Oral Arg. 21; Brief for Respondents 13, Marathon sees removal as the more offensive case, on the ground that the dignity of state courts is immediately at stake. If a federal court dismisses a removed case for want of personal jurisdiction, that determination may preclude the parties from relitigating the very same personal jurisdiction issue in state court. See Baldwin v. Iowa State Traveling Men’s Assn., 283 U. S. 522, 524-527 (1931) (personal jurisdiction ruling has issue-preclusive effect).

in subsequent state-court litigation, however, may also attend a federal court’s subject-matter determination. Ruhrgas hypothesizes, for example, a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract. See Tr. of Oral Arg. 10-11. If the district court determines that state law does not allow punitive damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, see 28 U. S. C. § 1332(a) (1994 ed., Supp. III) ($75,000), the federal court’s conclusion will travel back with the ease. Assuming a fair airing of the issue in federal court, that court’s ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications. See Chicot County Drainage Dist v. Baxter State Bank, 308 U. S. 371, 376 (1940) (“[Federal courts’] determinations of [whether they have jurisdiction to entertain a ease] may not be assailed collaterally.”); Restatement (Second) of Judgments § 12, p. 115 (1980) (“When a court has rendered a judgment in a contested action, the judgment [ordinarily] precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation.”). Similarly, as Judge Higginbotham observed, our “dualistic . . . system of federal and state courts” allows federal courts to make issue-preclusive rulings about state law in the exercise of supplemental jurisdiction under 28 U. S. C. § 1367. 145 F. 3d, at 231, and n. 7.

Most essentially, federal tary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design. A State’s dignitary interest bears consideration when a district court exercises discretion in a case cf this order. If personal jurisdiction raises “difficult questions of [state] law,” and subject-matter jurisdiction is resolved “as eas[ily]” as personal jurisdiction, a district court will ordinarily conclude that “federalism concerns tip the scales in favor of initially ruling on the motion to remand.” Allen v. Ferguson, 791 F. 2d 611, 616 (CA7 1986). In other cases, however, the district court may find that concerns of judicial economy and restraint are overriding. See, e.g., Asociacion Nacional de Pescadores v. Dow Quimica, 988 F. 2d 559, 566-567 (CA5 1993) (if removal is nonfrivolous and personal jurisdiction turns on federal constitutional issues, “federal intrusion into state courts’ authority ... is minimized”). The federal design allows leeway for sensitive judgments of this sort. “'Our Federalism’”

“does not mean blind deference to 'States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments.” Younger, 401 U. S., at 44.

The Fifth Gircuit and Marathon posit that state-court defendants will abuse the federal system with opportunistic removals. A discretionary rule, they suggest, will encourage manufactured, convoluted federal subject-matter theories designed to wrench eases from state court. See 145 F. 3d, at 219; Brief for Respondents 28-29. This specter of unwarranted removal, we have recently observed, “rests on an assumption we do not indulge — that district courts generally will not comprehend, or will balk at applying, the rules on removal Congress has prescribed. . . . The well-advised defendant. .. will foresee the likely outcome of an unwarranted removal — a swift and nonreviewable remand order, see 28 U. S. C. §§ 1447(c), (d), attended by the displeasure of a district court whose authority has been improperly invoked.” Caterpillar Inc. v. Lewis, 519 U. S. 61, 77-78 (1996).

G

In accord with Judge Higginbotham, we recognize that in most instances subject-matter jurisdiction will involve no arduous inquiry. See 145 F. 3d, at 229 (“engag[ing]” subject-matter jurisdiction “at the outset of a ease ... [is] often ... the most efficient way of going”). In sueh cases, both expedition and sensitivity to state courts’ coequal stature should impel the federal court to dispose of that issue first. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F. 3d 152, 155 (CA2 1996) (a court disposing of a case on personal jurisdiction grounds “should be convinced that the challenge to the court’s subject-matter jurisdiction is not easily resolved”). Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.

* * *

For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

       Ruhrgas is a German corporation; Norge is a Norwegian corporation. See App. 21,22. Marathon Oil Company, an Ohio corporation, and Marathon International Oil Company, a Delaware corporation, moved their principal places of business from Ohio to Texas while the venture underlying this case was in formation. See id., at 21, 239, and n. 11.

       A suit between “citizens of a State and citizens or subjects of a foreign state” lies within federal diversity jurisdiction. 28 U. S. C. § 1332(a)(2). Section 1332 has been interpreted to require “complete diversity.” See Strawbridge v. Curtiss, 3 Cranch 267 (1806); R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1528-1531 (4th ed. 1996). The foreign citizenship of defendant Ruhrgas, a German corporation, and plaintiff Norge, a Norwegian corporation, rendered diversity incomplete.

       Title 9 U. S. C. §205 allows removal "[wjhere the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards of June 10,1958].”

         Respecting the three meetings Ruhrgas attended in Houston, Texas, see supra, at 579, the District Court concluded that Marathon had not shown that Ruhrgas pursued the alleged pattern of fraud and misrepresentation during the Houston meetings. See App. 449. The court further found that Ruhrgas attended those meetings “due to the [Heimdal Agreement] with MPCN.” Id., at 450. As the Heimdal Agreement provides for arbitration in Sweden, the court reasoned, “Ruhrgas could not have expected to be haled into Texas courts based on these meetings.” Ibid. The court also determined that Ruhrgas did not have “systematic and continuous contacts with Texas” of the kind that would “subject it to general jurisdiction in Texas.” Id., at 453 (citing Helicópteros Nocionales de Colombia, S. A v. Hall, 466 U. S. 408 (1984)).

      The Court of Appeals concluded that whether Norge had a legal interest in the Heimdal license notwithstanding its assignment to MPCN likely turned on difficult questions of Norwegian law; Ruhrgas therefore could not show, at the outset, that Norge had been fraudulently joined as a plaintiff to defeat diversity. See 115 F. 3d 315, 319-320 (CA5), vacated and rehearing en banc granted, 129 F. 3d 746 (1997). The appeals court also determined that Marathon’s claims did not “strike at the sovereignty of a foreign nation,” so as to raise a federal question on that account. 115 F. 3d, at 320. Finally, the court concluded that Marathon asserted claims independent of the Heimdal Agreement and that the case therefore did not “relat[e] to” an international arbitration agreement under 9 U. S. C. § 205. See 115 F. 3d, at 320-321.

       The Fifth Circuit remanded the case to the District Court for it to consider the “nove[l]” subject-matter jurisdiction issues presented. 145 F. 3d 211, 225 (CA5 1998). The appeals court “expressed] no opinion” on the vacated panel decision which had held that the District Court lacked subject-matter jurisdiction. Id., at 225, n. 23.

       The Court of Appeals for the Second Circuit has concluded that district courts have discretion to dismiss a removed case for want of personal jurisdiction without reaching the issue of subject-matter jurisdiction. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F. 3d 152, 155 (1996).

       Ruhrgas suggests that it would be appropriate simply to affirm the District Court's holding that it lacked personal jurisdiction over Ruhrgas. See Brief for Petitioner 38-39, and n. 20. That issue is not within the question presented and is properly considered by the Fifth Circuit on remand.