author: Justice Stevens ChieF Justice Rehnquist,

text:
    NGUYEN v. UNITED STATES
    No. 01-10873.
    Argued March 24, 2003
    Decided June 9, 2003

      Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Ginsburg, and Breyer, JJ., joined, post> p. 83.

      Jeffrey T. Green argued the cause for petitioners. With him on the briefs were Howard Trapp and Rawlen T Manta-nona, both by appointment of the Court, 538 U. S. 920, Carter G. Phillips, and Eric A. Shumsky.

      Patricia A. Millett argued the cause for the United States. With her on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, and Deputy Solicitor General Dreeben.

      Together with No. 02-5034, Phan v. United States, also on certiorari to the same court.

        Gordon Rhea filed a brief for Thomas K. Moore as amicus curiae urging affirmance.

   Justice Stevens

delivered the opinion of the Court.

These cases present the question whether a panel of the Court of Appeals consisting of two Article III judges and one Article IV judge had the authority to decide petitioners’ appeals. We conclude it did not, and we therefore vacate the judgments of the Court of Appeals.

Petitioners are residents of the island of Guam, which has been a possession of the United States since the end of the Spanish-American War. The Navy administered the island, except for the period of Japanese occupation during World War II, until Congress established Guam as an unincorporated Territory with the passage of the Organic Act of Guam in 1950. Pursuant to Congress’ authority under Article IV, § 3, of the Constitution to “make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” the Organic Act of Guam created a territorial court, the District Court of Guam, and vested it with subject-matter jurisdiction over causes arising under both federal law and local law. Petitioners were tried before a jury, convicted, and sentenced in the District Court of Guam to lengthy prison terms for federal narcotics offenses. Petitioners do not dispute that court’s jurisdiction to conduct their criminal trial and enter judgments of conviction.

As authorized by statute, petitioners appealed their convictions to the Court of Appeals for the Ninth Circuit. The panel convened to hear their appeals included the Chief Judge and a Senior Circuit Judge of the Ninth Circuit, both of whom are, of course, life-tenured Article III judges who serve during “good Behaviour” for compensation that may not be diminished while in office. U. S. Const., Art. III, § 1. The third member of the panel was the Chief Judge of the District Court for the Northern Mariana Islands. That court is not an Article III court but an Article IV territorial court with subject-matter jurisdiction substantially similar to the jurisdiction of the District Court of Guam. The Chief Judge of the District for the Northern Mariana Islands, unlike an Article III judge, is appointed by the President and confirmed by the Senate for a term of 10 years, “unless sooner removed by the President for cause.”

The highly unusual presence of a non-Article III judge as a member of the Ninth Circuit panel occurred during special sittings in Guam and the Northern Mariana Islands. When the Court of Appeals heard arguments in Guam, the Chief Judge of the Ninth Circuit invited the Chief Judge of the District Court for the Northern Mariana Islands to participate. A judge of the District Court of Guam was similarly invited to participate in appeals heard while the Ninth Circuit sat in the Northern Mariana Islands.

The panel affirmed petitioners’ convictions without dissent. 284 F. 3d 1086 (2002). Neither Nguyen nor Phan objected to the composition of the panel before the cases were submitted for decision; neither petitioner sought rehearing after the Court of Appeals rendered judgment to challenge the panel’s authority to decide their appeals. Each did, however, file a petition for certiorari raising the question whether the judgment of the Court of Appeals is invalid because of the participation of a non-Article III judge on the panel. In accordance with this Court’s Rule 10(a), we granted the writ, 537 U. S. 999 (2002), to determine whether

the Court of Appeals had “so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s supervisory powers.” Pet. for Cert. in No. 01-10873, p. 6; Pet. for Cert. in No. 02-5034, p. 5. For the following reasons, we find these to be appropriate cases for the exercise of that power.

II

We begin with the congressional grant of authority permitting, in certain circumstances, the designation of district judges to serve on the courts of appeals. In relevant part, the designation statute authorizes the chief judge of a circuit to assign “one or more district judges within the circuit” to sit on the court of appeals “whenever the business of that court so requires.” 28 U. S. C. § 292(a). Section 292(a) itself does not explicitly define the “district judges” who may be assigned to the court of appeals. However, as other provisions of law make perfectly clear, judges of the District Court for the Northern Mariana Islands are not “district judges” within the meaning of § 292(a).

Outside of § 292(a), Title 28 contains several particularly instructive provisions. The term “district court” as used throughout Title 28 is defined to mean a “ ‘court of the United States’” that is “constituted by chapter 5 of this title.” § 451. Chapter 5 of Title 28 in turn creates a “United States District Court” for each judicial district. § 132(a) (“There shall be in each judicial district a district court which shall be a court of record known as the United States District Court for the district”). And “district judge[s]” are established as the members of those courts. § 132(b) (“Each district court shall consist of the district judge or judges for the district in regular active service”). The judicial districts constituted by Chapter 5 are then exhaustively enumerated. § 133(a) (“The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts, as follows [listing districts]”). Lastly, Chapter 5 describes “district judges” as holding office “during good behavior.” § 134(a).

Taking these provisions together, § 292(a) cannot be read to permit the designation to the court of appeals of a judge of the District Court for the Northern Mariana Islands. Significantly, the District Court for the Northern Mariana Islands is not one of the courts constituted by Chapter 5 of Title 28, nor is that court even mentioned within Chapter 5. See § 133(a). Because the judges of the District Court for the Northern Mariana Islands are appointed for a term of years and may be removed by the President for cause, they also do not satisfy the command for district judges within the meaning of Title 28 to hold office during good behavior. § 134(a).

The Government agrees these statutory provisions are best read together as not permitting the Chief Judge of the Northern Mariana Islands to sit by designation on the Ninth Circuit. The Government maintains, however, that the erroneous designation in these cases was not plainly impermissible because Title 28 does not expressly forbid it or explicitly define the term “district judge” separately from the term “district court.” This contention requires an excessively strained interpretation of the statute. To be sure, a literal reading of the words “district judges” in isolation from the rest of the statute might arguably justify assigning the Chief Judge of the District Court for the Northern Mariana Islands for service on the Court of Appeals, for he is called a “district judge” of a court “within the [Ninth] [Circuit.” But a literal reading of that sort is so capacious that it would also justify the designation of “district judges” of any number of state courts “within” the Ninth Circuit. The statute cannot plausibly be interpreted to authorize the improper panel assignment in these cases.

Moreover, we do not read the designation statute without regard for the “historic significance” of the term “United States District Court” used in Title 28. Mookini v. United States, 303 U. S. 201, 205 (1938). “[Without an addition expressing a wider connotation,” that term ordinarily excludes Article IV territorial courts, even when their jurisdiction is similar to that of a United States District Court created under Article III. Ibid. See also Summers v. United States, 231 U. S. 92, 101-102 (1913) (“[T]he courts of the Territories may have such jurisdiction of cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts, but this does not make them circuit and district courts of the United States”); Stephens v. Cherokee Nation, 174 U. S. 445, 476-477 (1899) (“It must be admitted that the words ‘United States District Court’ were not accurately used ... [to refer to] the United States Court in the Indian Territory”). Construing the relevant statutory provisions together with further aid from historical usage, it is evident that Congress did not contemplate the judges of the District Court for the Northern Mariana Islands to be “district judges” within the meaning of § 292(a). It necessarily follows that the appointment of one member of the panel deciding petitioners’ appeals was unauthorized.

III

Although the Government concedes that the panel of the Court of Appeals was improperly constituted, it advances three grounds on which the judgments below may rest undisturbed. Two of the grounds on which we are urged to affirm concern petitioners’ failure to object to the panel’s composition in the Court of Appeals. Relying on the so-called “de facto officer” doctrine, the Government contends petitioners’ failure to challenge the panel’s composition at the earliest practicable moment completely forecloses relief in this Court. The Government also contends that petitioners do not meet the requirements for relief under plain-error review. The presence of a quorum of two otherwise-qualified judges on the Court of Appeals panel is invoked as the third ground sufficient to support the decision below. We do not find these contentions persuasive.

The defacto officer doctrine, we have explained, “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Ryder v. United States, 515 U. S. 177, 180 (1995). Whatever the force of the de facto officer doctrine in other circumstances, an examination of our precedents concerning alleged irregularities in the assignment of judges does not compel us to apply it in these cases.

Typically, we have found a judge’s actions to be valid de facto when there is a “merely technical” defect of statutory authority. Glidden Co. v. Zdanok, 370 U. S. 530, 535 (1962) (plurality opinion of Harlan, J.). In McDowell v. United States, 159 U. S. 596, 601-602 (1895), for example, the Court declined to notice alleged irregularities in a Circuit Judge’s designation of a District Judge for temporary service in another district. See also Ball v. United States, 140 U. S. 118, 128-129 (1891) (assigned judge had de facto authority to replace a deceased judge even though he had been designated to replace a disabled judge). We observed in McDowell, however, that the judge whose assignment had been questioned was otherwise qualified to serve, because he was “a judge of the United States District Court, having all the powers attached to such office,” and because the Circuit Judge was otherwise empowered to designate him. 159 U. S., at 601.

By contrast, we have agreed to correct, at least on direct review, violations of a statutory provision that “embodies a strong policy concerning the proper administration of judicial business” even though the defect was not raised in a timely manner. Glidden, 370 U. S., at 536 (plurality opinion). In American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372 (1893), the ease Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal. This Court succinctly observed: “If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari.” 148 U. S., at 387. The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Tur bine Co., 228 U. S. 645 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650. Rather than sift through the underlying merits, we remanded to the Circuit Court of Appeals “so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute.” Id., at 651. See also Moran v. Dillingham, 174 U. S. 153, 158 (1899) (“[T]his court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals to be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges” (emphasis deleted)).

We are confronted in petitioners’ eases with a question of judicial authority more fundamental than whether “some effort has been made to conform with the formal conditions on which [a judge’s] particular powers depend.” Johnson v. Manhattan R. Co., 61 F. 2d 934, 938 (CA2 1932) (L. Hand, J.). The difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore the difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all. Like the statutes in William Cramp & Sons, Moran, and American Constr. Co., § 292(a) embodies weighty congressional policy concerning the proper organization of the federal courts. Section 292(a) does not permit any assignment to service on the courts of appeals of a district judge who does not enjoy the protections set forth in Article III. Congress’ decision to preserve the Article III character of the courts of appeals is more than a trivial concern, cf. Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 57-60 (1982) (plurality opinion), and is entitled to respect. The Chief Judge of the Northern Mariana Islands did not purport to have “all the powers attached to” the position of an Article III judge, McDowell, 159 U. S., at 601, nor was the Chief Judge of the Ninth Circuit otherwise permitted by § 292(a) to designate him for service on an Article III court. Accordingly, his participation contravened the statutory requirements set by Congress for the composition of the federal courts of appeals.

For essentially the same reasons, we think it inappropriate to accept the Government’s invitation to assess the merits of petitioners’ convictions or whether the fairness, integrity, or public reputation of the proceedings were impaired by the composition of the panel. It is true, as the Government observes, that a failure to object to trial error ordinarily limits an appellate court to review for plain error. See 28 U. S. C. §2111; Fed. Rule Crim. Proc. 52(b). But to ignore the violation of the designation statute in these eases would incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld. Even if the parties had expressly stipulated to the participation of a non-Article III judge in the consideration of their appeals, no matter how distinguished and well qualified the judge might be, such a stipulation would not have cured the plain defect in the composition of the panel. See William Cramp & Sons, 228 U. S., at 650.

More fundamentally, our enforcement of § 292(a)’s outer bounds is not driven so much by concern for the validity of petitioners’ convictions at trial but for the validity of the composition of the Court of Appeals. As a general rule, federal courts may not use their supervisory powers to circumvent the obligation to assess trial errors for their prejudicial effect. See Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988). Because the error in these cases involves a violation of a statutory provision that “embodies a strong policy concerning the proper administration of judicial business,” however, our exercise of supervisory power is not inconsistent with that general rule. Glidden, 370 U. S., at 536 (plurality opinion). Thus, we invalidated the judgment of a Court of Appeals without assessing prejudice, even though urged to do so, when the error alleged was the improper composition of that court. See United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960) (vacating judgment of en banc Court of Appeals because participation by Senior Circuit Judge was not provided by statute).

It is also true that two judges of a three-judge panel constitute a quorum legally able to transact business. Moreover, settled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified. United States v. Allied Stevedoring Corp., 241 F. 2d 925, 927 (CA2 1957) (L. Hand, J.). For two reasons, however, the presence of a quorum on the Ninth Circuit panel does not save the judgments below. First, the quorum statute has been on the books (in relevant part essentially unchanged) for over a century, yet this Court has never doubted its power to vacate the judgment entered by an improperly constituted court of appeals, even when there was a quorum of judges competent to consider the appeal. See United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960); William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913); American Constr. Co. v. Jacksonville, T & K.W. R. Co., 148 U. S. 372 (1893).

Second, the statutory authority for courts of appeals to sit in panels, 28 U. S. C. § 46(b), requires the inclusion of at least three judges in the first instance. As the Second Circuit has noted, Congress apparently enacted § 46(b) in part “to curtail the prior practice under which some circuits were routinely assigning some cases to two-judge panels.” Murray v. National Broadcasting Co., 35 F. 3d 45, 47 (1994). It is “clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate,” ibid., but it is less clear whether the quorum statute offers postjudgment absolution for the participation of a judge who was not otherwise competent to be part of the panel under § 292(a). Thus, although the two Article III judges who took part in the decision of petitioners’ appeals would have constituted a quorum if the original panel had been properly created, it is at least highly doubtful whether they had any authority to serve by themselves as a panel. In light of that doubt, it is appropriate to return these cases to the Ninth Circuit for fresh consideration of petitioners’ appeals by a properly constituted panel organized “eomformably to the requirements of the statute.” William Cramp & Sons, 228 U. S., at 651.

Accordingly, we vacate the judgments of the Court of Appeals and remand these cases for further proceedings consistent with this opinion.

It is so ordered.

ChieF Justice Rehnquist,

with whom Justice Scalia, Justice Ginsburg, and Justice Breyer join, dissenting.

Under Federal Rule of Criminal Procedure 52(b), courts have “a limited power to correct errors that were forfeited because [they were] not timely raised” below. United States v. Olano, 507 U. S. 725, 731 (1993) (emphasis added). Even when an error has occurred that is “ 'plain’ ” and “ 'affect[s] substantial rights,’ ” id., at 732, “ ‘an appellate court may ... exercise its discretion to notice a forfeited error . . . only if . . . the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’ ” United States v. Cotton, 535 U. S. 625, 631-632 (2002) (quoting Johnson v. United States, 520 U. S. 461, 467 (1997)) (emphasis added). By ignoring this well-established limitation of our remedial authority, the Court flouts the stated will of Congress and almost 70 years of our own precedent.

It was undoubtedly a mistake, for the reasons stated by the Court, ante, at 74-76, for the appellate panel to include an Article IV judge. Exercise of our certiorari jurisdiction was warranted to review the case and to state the law correctly. To that extent, I agree with the Court’s opinion. But I do not agree that that error is a valid basis for vacating petitioners’ convictions, because even assuming that the error affected petitioners’ substantial rights, it simply did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.

Petitioners knew of the composition of the panel of the Court of Appeals more than a week before the case was orally argued.. App. 7, 9-12. They made no objection then or later in that court, preferring to wait until the panel had decided against them on the merits to raise it. The Court first concedes, as it must, that a failure to object to error limits an appellate court to review for plain error. Ante, at 80. But the Court then completely ignores the fact that “the authority created by Rule 52(b) is circumscribed.” Olano, supra, at 732. Indeed, the opinion fails to cite, much less apply, Olano or our other recent cases reaffirming that “we exercise our power under Rule 52(b) sparingly,” Jones v. United States, 527 U. S. 373, 389 (1999), and only “ ‘in those circumstances in which a miscarriage of justice would otherwise result,’ ” Olano, supra, at 736 (quoting United States v. Young, 470 U. S. 1, 15 (1985)).

This failure is baffling in light of our well-established precedent and the clarity of Congress’ intent to limit federal courts’ authority to correct plain error. As we explained in Olano, we articulated the standard that should guide the exercise of remedial discretion under Rule 52(b) almost 70 years ago in United States v. Atkinson, 297 U. S. 157 (1936). 507 U. S., at 736. Congress then codified that standard in Rule 52(b). Ibid. (quoting Young, supra, at 7). Since then, “we repeatedly have quoted the Atkinson language in describing plain-error review.” Olano, supra, at 736 (citing cases). According to this long line of cases, when an error is plain and affects substantial rights, “an appellate court must then determine whether the forfeited error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings before it may exercise its discretion to correct the error.” Johnson, supra, at 469-470 (quoting Olano, supra, at 736) (internal quotation marks omitted; emphasis added).

This mandatory inquiry confirms that no “miscarriage of justice” would result if petitioners’ convictions were affirmed. Petitioners make no claim that Chief Judge Munson was biased or incompetent. His character and abilities as a jurist, peculiarly experienced in adjudicating matters arising within the United States Territories, stand unimpeached. It is therefore difficult to understand how fairness or the public reputation of the judicial process is advanced by allowing criminal defendants, whose convictions are supported by “ ‘overwhelming’ ” evidence, Cotton, supra, at 633, 634, and whose arguments on appeal were meritless, to consume the public resources necessary for a second appellate review.

The Court proffers several justifications for ignoring our controlling precedents, none of which is persuasive. First, the Court’s reliance on United States v. American-Foreign S. S. Corp., 363 U. S. 685 (1960), is misplaced. See ante, at 79-80, n. 11, 81, 82. In that case, Circuit Judge Medina retired three months after the Court of Appeals for the Second Circuit granted a petition for rehearing en banc, but before the court issued its en banc decision. 363 U. S., at 686-687. He nonetheless participated in consideration of the case and subsequently joined the en banc decision. Id., at 687. This Court vacated the judgment because, under the relevant statute, a “court in banc” could consist only of “active circuit judges.” Id., at 685 (quoting 28 U. S. C. § 46(c) (internal quotation marks omitted)).

American-Foreign does not speak to the situation here because the petitioner in that case did not forfeit the error. Forfeiture is “‘the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ” Johnson, 520 U. S., at 465 (quoting Olano, 507 U. S., at 731). The petitioner in American-Foreign did not so fail. Rather, it objected at the earliest possible moment: immediately after the Court of Appeals issued an en banc decision that Judge Medina joined. It did not know that Judge Medina would retire or then participate in the en banc decision until after the case was briefed and submitted; it availed itself of the earliest opportunity to object to this error by filing a motion for further rehearing en bane. Petitioner did not forfeit the error, so Rule 52(b) did not apply.

That is not the case here. Petitioners Nguyen and Phan learned before oral argument that Chief Judge Munson was a member of their Court of Appeals panel. They nonetheless failed to object at oral argument or in a petition for rehearing en banc. This forfeiture requires us to apply the Olano test faithfully.

The Court also relies mistakenly on William Cramp & Sons Skip & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U. S. 645 (1913), and American Constr. Co. v. Jacksonville, T.&K.W.R. Co., 148 U. S. 372 (1893). Ante, at 78-79, and n. 11. In both cases, this Court considered an Act of Congress providing that “ ‘no judge before whom a cause or question may have been tried or heard in a district court... shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals.’” 228 U. S., at 649; 148 U. S., at 387. This Court held that, when a district judge sat in contravention of that “comprehensive and inflexible” prohibition, 228 U. S., at 650, the court of appeals was statutorily unable to act. See also American Construction, supra, at 387.

But these cases do not control here because, as the Court fails to note, both cases predate our adoption of the standard for plain-error review in Atkinson in 1936, and Congress’ codification of that standard in Rule 52(b) in 1944. This, and not some broader principle, explains the Court’s failure in those cases to apply our modern plain-error analysis. The Court has no such excuse. The cases can also easily be distinguished from this litigation on the facts: They held only that courts constituted “in violation of the express prohibitions of [a] statute” lack the authority to act. Cramp, 228 U. S., at 650 (emphasis added). In contrast, the Ninth Circuit panel in this litigation did not run afoul of any “comprehensive and inflexible” statutory “prohibition.” Ibid. Rather, the error must be deduced by negative implication, from a series of statutes that describe the proper use of district judges in panels of the Courts of Appeals. See ante, at 75-76.

The Court also says that “to ignore the violation of the designation statute in these cases would incorrectly suggest that some action (or inaction) on petitioners’ part could create authority Congress has quite carefully withheld.” Ante, at 80. But proper affirmance of petitioners’ convictions on the ground that the error did not affect the fairness, integrity, or public reputation of judicial proceedings would not so suggest. The Government has conceded the error, and the Court’s opinion properly makes clear to the Courts of Appeals that Chief Judge Munson’s participation constituted plain error. Indeed, the Court unwittingly explains why its own holding is mistaken: By ignoring the limits that Congress has imposed on appellate courts’ discretion via Rule 52(b), the Court “createfs]” for itself and exercises “authority [that] Congress has quite carefully withheld.” Ibid.

On this record, there is no basis for concluding that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. No miscarriage of justice will result from deciding not to notice the plain error here. Accordingly, I would proceed to address petitioners’ constitutional claims. Petitioners argue that the designation of a non-Article III judge to sit on the Ninth Circuit panel violated the Appointments Clause, U. S. Const., Art. II, §2, cl. 2, and the structural guarantees embodied in Article III. I would decline to address the first question because it was “neither raised nor decided below, and [was] not presented in the petition for certiorari.” Blessing v. Freestone, 520 U. S. 329, 340, n. 3 (1997).

Petitioners’ second constitutional claim, like their statutory one, is subject to plain-error review. “No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” Yakus v. United States, 321 U. S. 414, 444 (1944); Johnson, 520 U. S., at 465. See also Cotton, 535 U. S., at 631-633 (applying plain-error review to a claimed violation of Apprendi v. New Jersey, 530 U. S. 466 (2000)); Plant v. Spendthrift Farm, Inc., 514 U. S. 211, 231 (1995) (“[T]he proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord with our cases”); Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 848-849 (1986) (“[A]s a personal right, Article III’s guarantee of an impartial and independent federal adjudication is subject to waiver, just as are other personal constitutional rights that dictate the procedures by which civil and criminal matters must be tried”).

Assuming, arguendo, that petitioners could satisfy the first three elements of the plain-error inquiry, see Olano, 507 U. S., at 732; supra, at 84-85, their constitutional claim fails for the same reason as does their statutory claim: Petitioners have not shown that the claimed error seriously affected the fairness, integrity, or public reputation of judicial proceedings. See supra, at 85. I would therefore affirm the judgment of the Court of Appeals.

       See Treaty of Paris, Art. II, 30 Stat. 1755 (1899).

         64 Stat. 384. See generally A. Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations 313, 323 (1989).

       See Organic Act of Guam §22, 64 Stat. 389, 48 U. S. C. §1424. “The ‘District Court of Guam’ rather than ‘United States District Court of Guam’ was chosen as the court’s title, since it was created under Art. IV, §3, of the Federal Constitution rather than under Art. Ill, and since § 22 vested the court with original jurisdiction to decide both local and federal-question matters.” Guam v. Olsen, 431 U. S. 195, 196-197, n. 1 (1977) (citing S. Rep. No. 2109, 81st Cong., 2d Sess., 12 (1950)). The Guam Legislature was authorized as well to create local courts and transfer to them jurisdiction over certain cases that otherwise could be heard by the District Court of Guam. See Olsen, 431 U. S., at 200-201 (citing Agana Bay Dev. Co. (Hong Kong) Ltd. v. Supreme Court of Guam, 529 F. 2d 952, 959 (CA9 1976) (Kennedy, J., dissenting)).

       Title 28 U. S. C. § 1294(4) provides:
      “[Ajppeals from reviewable decisions of the district and territorial courts shall be taken to the courts of appeals as follows:
      “(4) From the District Court of Guam, to the Court of Appeals for the Ninth Circuit.”

       “The District Court for the Northern Mariana Islands shall have the jurisdiction of a District Court of the United States, including, but not limited to, the diversity jurisdiction provided for in section 1332 of title 28 and that of a bankruptcy court of the United States.
      “The district court shall have original jurisdiction in all causes in the Northern Mariana Islands not described in subsection (a) of this section jurisdiction over which is not vested by the Constitution or laws of the Northern Mariana Islands in a court or courts of the Northern Mariana Islands.” 48 U. S. C. §1822. The text of the statute closely follows the corresponding provisions of the Organic Act of Guam. See S. Rep. No. 95-475, p. 3 (1977).

       48 U. S. C. § 1821(b)(1).

       The District Court for the Northern Mariana Islands is instead established in Chapter 17 of Title 48 (“Territories and Insular Possessions”). See §1821.

       Alaska, Hawaii, Idaho, Montana, Nevada, and Washington are all States within the Ninth Circuit whose judiciaries include “district judges.” See Alaska Stat. §§22.15.010, 22.15.020, 22.20.010 (2002); Haw. Const., Art. VI, §1; Haw. Rev. Stat. §604-1 (1993); Idaho Const., Art. V, §11; Idaho Code §1-701 (1948-1998); Mont. Const., Art. VII, §§1, 4, 6; Nev. Const., Art. 6, §§5-6; Nev. Rev. Stat. § 1.010 (1995); Wash. Const., Art. IV, §6 (West Supp. 2003); Wash. Rev. Code §§3.30.015, 3.30.030, 3.34.010, 3.66.010 (1988 and West Supp. 2003).

       Petitioners contend that the participation of an Article IV judge on the panel violated structural constitutional guarantees embodied in Article III and in the Appointments Clause, Art. II, §2, cl. 2, of the Gonstitution. We find it unnecessary to discuss the constitutional questions because the statutory violation is clear.

       The petitioners in American Constr. Co. challenged the participation of a Circuit Judge who, while sitting as a trial judge, had entered an order closely related to the matter under review in the Circuit Court of Appeals. At the time, the relevant statute governing the composition of the circuit courts of appeals provided that “no justice or judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals.” Evarts Act, ch. 517, §3, 26 Stat. 827.

       The Government seeks to distinguish William Cramp & Sons, Moran, and American Constr. Co. on the ground that the statutory provision at issue in each of those cases, unlike § 292(a), “expressly prohibited” the challenged judge’s participation. Brief for United States 18. In light of our conclusion that there is no plausible interpretation of § 292(a) permitting the designation in the instant cases, see supra, at 74-76; we think this is a distinction without a difference. In any event, there was no “express” prohibition at play in United States v. American-Foreign S. S. Corp., 363 U. S. 685, 690-691 (1960), in which this Court vacated the judgment of a Court of Appeals, sitting en banc, because a Senior Circuit Judge who had participated in the decision was not authorized by statute to do so. See also id., at 691 (Harlan, J., dissenting) (“The statute need hardly be read, as the Court now holds it should be, as saying that a case in an en banc court shall be 'heard and determined’ by the active circuit judges”).

       We agree with the Government’s submission that the improper composition of the court below was “an isolated, one-time mistake.” Brief for United States 5. Countervailing concerns for gamesmanship, which animate the requirement for contemporaneous objection, therefore dissipate in these cases in light of the rarity of the improper panel assignment at issue.

       “The authority which Congress has granted this Court to review judgments of the courts of appeals undoubtedly vests us not only with the authority to correct errors of substantive law, but to prescribe the method by which those courts go about deciding the cases before them.” Lehman Brothers v. Schein, 416 U. S. 386, 393 (1974) (Rehnquist, J., concurring).

       Title 28 U. S. C. § 46(d) provides: “A majority of the number of judges authorized to constitute a court or panel thereof . . . shall constitute a quorum.” As used in § 46(d), “quorum . . . means such a number of the members of the court as may legally transact judicial business.” Tobin v. Ramey, 206 F. 2d 505, 507 (CA5 1953).

       See Act of Mar. 3, 1911, ch. 6, § 117, 36 Stat. 1131:
      “There shall be in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum .. ..”
      The Evarts Act, which established the original circuit courts of appeals, contained essentially the same provision:
      “[T]here is hereby created in each circuit a circuit court of appeals, which shall consist of three judges, of whom two shall constitute a quorum.” Ch. 517, §2, 26 Stat. 826.

       Title 28 U. S. C. § 46(b) provides, in pertinent part: “In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified ...

       Unlike the dissent, we believe that it would “3ou[t] the stated will of Congress,” post, at 84 (opinion of Rehnquist, C. J.), and call into serious question the integrity as well as the public reputation of judicial proceedings to permit the decision below to stand, for no one other than a properly constituted panel of Article III judges was empowered to exercise appellate jurisdiction in these cases.

      Drug enforcement agents seized 443.8 grams of methamphetamine in a package that was mailed to Phan and opened in Nguyen’s apartment. 284 F. 3d 1086, 1087-1088 (CA9 2002). In that apartment, agents also discovered drug paraphernalia, “nearly a hundred little plastic zip lock bags,” and $6,000 in cash. Id,., at 1088, 1091.
      All three members of the Ninth Circuit panel agreed that petitioners’ challenges — that the District Court abused its discretion in admitting certain evidence, and that the evidence was insufficient to support the convictions — lacked merit. Judge Goodwin, writing for the court, explained that petitioners’ evidentiary challenges were “overstate[d],” and that the District Court “clearly performed the necessary” analysis. Id., at 1090. With respect to petitioners’ sufficiency of the evidence argument, the judges were also unanimous “[t]here was plenty of evidence,” id., at 1091, and “abundant facts,” id., at 1090, in support of petitioners’ convictions.


source: Caselaw Access Project

author: Justice Thomas Justice O’Connor,

license: Public Domain

text:
    DESERT PALACE, INC., dba CAESARS PALACE HOTEL & CASINO v. COSTA
    No. 02-679.
    Argued April 21, 2003
    Decided June 9, 2003

      Thomas, J., delivered the opinion for a unanimous Court. O’Connor, J., filed a concurring opinion, post, p. 102.

      Mark J. Ricciardi argued the cause for petitioner. With him on the briefs were Roger K. Quillen, Paul A. Ades, and Corbett N. Gordon.

      Irving L. Gornstein argued the cause for the United States as amicus curiae. On the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Dennis J. Dimsey, and Teresa Kwong.

      Robert N. Peccole argued the cause for respondent. With him on the brief was Eric Schnapper.

        Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A. Bokat, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Association of Trial Lawyers of America by Jeffrey L. Needle; for the Lawyers’ Committee for Civil Rights Under Law et al. by Michael C. Subit, Barbara R. Arrmine, Thomas J. Henderson, Michael L. Foreman, Kristin M. Dadey, Thomas W. Osborne, Laurie A. McCann, Daniel B. Kohrman, Melvin Radowitz, Leñara M. Lapidus, Vincent A Eng, Judith L. Lichtman, Jocelyn C. Frye, and Dennis C. Hayes; and for Ann B. Hopkins by Douglas B. Huron.

        Ronald B. Schwartz and Jenifer Bosco filed a brief for the National Employment Lawyers Association as amicus curiae.

   Justice Thomas

delivered the opinion of the Court.

The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required.

I

A

Since 1964, Title VII has made it an “unlawful employment practice for an employer... to discriminate against any individual. . . , because of such individual’s race, color, religion, sex, or national origin.” 78 Stat. 255, 42 U. S. C. §2000e-2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the Court considered whether an employment decision is made “because of” sex in a “mixed-motive” case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under §2000e-2(a)(l), an employer could “avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role.” Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O’Connor, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense.

Justice Brennan, writing for a plurality of four Justices, would have held that “when a plaintiff . . . proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.” Id., at 258 (emphasis added). The plurality did not, however, “suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision.” Id., at 251-252.

Justice White and Justice O’Connor both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff “show[ed] that the unlawful motive was a substantial factor in the adverse employment action.” Price Waterhouse, supra, at 259. Justice O’Con-nor, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a “substantial factor” in the employment decision. 490 U. S., at 276. But, under Justice O’Connor’s view, “the burden on the issue of causation” would shift to the employer only where “a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision.” Ibid. (emphasis added).

Two years after Price Waterhouse, Congress passed the 1991 Act “in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964.” Landgraf v. USI Film Products, 511 U. S. 244, 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, “responded]” to Price Waterhouse by “setting forth standards applicable in ‘mixed motive’ cases” in two new statutory provisions. 511 U. S., at 251. The first establishes an alternative for proving that an “unlawful employment practice” has occurred:

“Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U. S. C. §2000e-2(m).

The second provides that, with respect to “a claim in which an individual proves a violation under section 2000e-2(m),” the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney’s fees and costs. § 2000e-5(g)(2)(B). In order to avail itself of the affirmative defense, the employer must “demonstrate] that [it] would have taken the same action in the absence of the impermissible motivating factor.” Ibid.

Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a “motivating factor” in an adverse employment action. See 42 U. S. C. § 2000e-2(m). Relying primarily on Justice O’Con-nor’s concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under § 20Q0e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F. 3d 572, 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F. 3d 1449, 1453-1454 (CA11 1996); Fuller v. Phipps, 67 F. 3d 1137, 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98.

B

Petitioner Desert Palace, Inc., dba Caesar’s Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catha-rina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit.

Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but Gerber, who had a clean disciplinary record, received only a 5-day suspension.

Respondent subsequently' filed this lawsuit against petitioner in the United States- District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for “intense ‘stalking’ ” by one- of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly “stack[ed]” her disciplinary record and “frequently used or tolerated” sex-based slurs against her. 299 F. 3d 838, 845-846 (CA9 2002).

Based on this evidence, the District Court denied petitioner’s motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that “ ‘[t]he plaintiff has the burden of proving ... by a preponderance of the evidence’ ” that she “‘suffered adverse work conditions’” and that her sex “ ‘was a motivating factor in any such work conditions imposed upon her.’ ” Id., at 858.

Second, the District Court gave the jury the following mixed-motive instruction:

“‘You have heard evidence that the defendant’s treatment of the plaintiff was motivated by the plaintiff’s sex and also by other lawful reasons. If you find that the plaintiff’s sex was a motivating factor in the defendant’s treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant’s conduct was also motivated by a lawful reason.
“ ‘However, if you find that the defendant’s treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff’s gender had played no role in the employment decision.’ ” Ibid.

Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce “direct evidence” that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding back-pay, compensatory damages, and punitive damages. The District Court denied petitioner’s renewed motion for judgment as a matter of law.

The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present “substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus.” 268 F. 3d 882, 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was “terminated because she was a woman.” Id., at 890.

The Court of Appeals reinstated the District Court’s judgment after rehearing the case en banc. 299 F. 3d 838 (CA9 2002). The en banc court saw no need to decide whether Justice O’Connor’s concurrence in Price Waterhouse controlled because it concluded that Justice O’Connor’s references to “direct evidence” had been “wholly abrogated” by the 1991 Act. 299 F. 3d, at 850. And, turning “to the language” of §2000e-2(m), the court observed that the statute “imposes no special [evidentiary] requirement and does not reference ‘direct evidence.’” Id., at 853. Accordingly, the court concluded that a “plaintiff... may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played ‘a motivating factor.’ ” Id., at 853-854 (footnote omitted). Based on that standard, the Court of Appeals held that respondent’s evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent’s sex was a “motivating factor in her treatment.” Id., at 859. Four judges of the en banc panel dissented, relying in large part on “the reasoning of the prior opinion of the three-judge panel.” Id., at 866.

We granted certiorari. 537 U. S. 1099 (2003).

II

This case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U. S. C. § 2000e-2(m). Petitioner’s argument on this point proceeds in three steps: (1) Justice O’Connor’s opinion is the holding of Price Waterhouse; (2) Justice O’Connor’s Price Water-house opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price Waterhouse is controlling: the third step of petitioner’s argument is flawed, primarily because it is inconsistent with the text of § 2000e-2(m).

Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992). And where, as here, the words of the statute are unambiguous, the “ ‘judicial inquiry is complete.’” Id., at 254 (quoting Rubin v. United States, 449 U. S. 424, 430 (1981)). Section 2000e-2(m) unambiguously states that a plaintiff need only “demonstrate]” that an employer used a forbidden consideration with respect to “any employment practice.” On its face, the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9.

Moreover, Congress explicitly defined the term “demonstrates” in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term “ ‘demonstrates' ” as to “mee[t] the burdens of production and persuasion.” §2000e(m). If Congress intended the term “ ‘demonstrates' " to require that the “burdens of production and persuasion” be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in §2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien “demonstrates by clear and convincing evidence” that the application was filed within one year of the alien’s arrival in the United States); 42 U. S. C. § 5851(b)(8)(D) (providing that “[r]elief may not be ordered” against an employer in retaliation cases involving whistleblowers under the Atomic Energy Act where the employer is able to “demonstrate] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior” (emphasis added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality opinion) (“Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief”).

In addition, Title VII’s silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally applies] in Title VII cases.” Ibid. That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” ibid., using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Athens, 460 U. S. 711, 714, n. 3 (1983). We have often acknowledged the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), we recognized that evidence that a defendant’s explanation for an employment practice is “unworthy of credence” is “one form of circumstantial evidence that is probative of intentional discrimination.” Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: “Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.” Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 508, n. 17 (1957).

The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U. S. 121, 140 (1954) (observing that, in criminal cases, circumstantial evidence is “intrinsically no different from testimonial evidence”). And juries are routinely instructed that “[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.” 1A K. O’Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ¶ 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13.

Finally, the use of the term “demonstrates” in other provisions of Title VII tends to show further that §2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U. S. C. §§ 2000e-2(k)(l)(A)(i), 2000e-5(g)(2)(B). For instance, § 2000e-5(g)(2)(B) requires an employer to “demon-stratfe] that [it] would have taken the same action in the absence of the impermissible motivating factor” in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and §2000e-2(m), it would be logical to assume that the term “demonstrates” would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not “agree that ... the defendant or the employer has any heightened standard” to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See Commissioner v. Lundy, 516 U. S. 235, 250 (1996) (“The interrelationship and close proximity of these provisions of the statute ‘presents a classic case for application of the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning”’” (quoting Sullivan v. Stroop, 496 U. S. 478, 484 (1990))).

For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under § 2000e-2(m).

* * *

In order to obtain an instruction under §2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Because direct evidence of discrimination is not required in mixed-motive cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice O’Connor,

concurring.

I join the Court’s opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff “demonstrated by direct evidence that an illegitimate factor played a substantial role” in an adverse employment decision. Price Waterhouse v. Hopkins, 490 U. S. 228, 275 (1989) (O’Connor, J., concurring in judgment). This showing triggered “the deterrent purpose of the statute” and permitted a reasonable factfinder to conclude that “absent further explanation, the employer’s discriminatory motivation ‘caused’ the employment decision.” Id., at 265.

As the Court’s opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixed-motive cases arising under Title VII. Ante, at 98-101. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

       This case does not require us to decide when, if ever, § 107 applies outside of the mixed-motive context.

       Title 42 U. S. C. §2000e-5(g)(2)(B) provides in full:
      “On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
      “(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
      “(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).”

       Of course, in light of our conclusion that direct evidence is not required under §2000e-2(m), we need not address the second question on which we granted certiorari: “What are the appropriate standards for lower courts to follow in making a direct evidence determination in ‘mixed-motive’ cases under Title VII?” Pet. for Cert. i.


author: Justice Breyer

text:
    FITZGERALD, TREASURER OF IOWA v. RACING ASSOCIATION OF CENTRAL IOWA et al.
    No. 02-695.
    Argued April 29, 2003
    Decided June 9, 2003

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

      Thomas J. Miller, Attorney General of Iowa, argued the cause for petitioner. With him on the briefs were Julie F Pottorff, Deputy Attorney General, and Jeffrey D. Farrell and Jean M. Davis, Assistant Attorneys General.

      Kent L. Jones argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General O'Con-nor, David English Carmack, and Judith A. Hagley.

      Mark McCormick argued the cause for respondents. With him on the brief were Thomas L. Flynn, Edward M. Mansfield, Stephen C. Krumpe, and Lawrence P. McLellan.

      Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, Alana M. Barragdn-Scott, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Michael A. Cox of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Patricia A. Madrid of New Mexico, Anabelle Rodriguez of Puerto Rico, Larry Long of South Dakota, Paul G. Summers of Tennessee, and William H. Sorrell of Vermont; and for the City of Bettendorf, Iowa, et al. by Thomas D. Waterman, Dennis W. Johnson, and Robert N. Johnson III.

      Briefs of amici curiae urging affirmance were filed for the City of Du-buque, Iowa, by Barry A Lindahl; for Polk County, Iowa, by John P. Sarcone; and for the Institute for Justice by Clint Bolick, William H. Mellor, Dana Berliner, and Clark M. Neily.

   Justice Breyer

delivered the opinion of the Court.

Iowa taxes adjusted revenues from slot machines on excursion riverboats at a maximum rate of 20 percent. Iowa Code § 99F.11 (2003). Iowa law provides for a maximum tax rate of 36 percent on adjusted revenues from slot machines at racetracks. §§99F.4A(6), 99F.11. The Iowa Supreme Court held that this 20 percent/36 percent difference in tax rates violates the Federal Constitution’s Equal Protection Clause, Amdt. 14, §1. 648 N. W. 2d 555 (2002). We disagree and reverse the Iowa Supreme Court’s determination.

I —

Before 1989, Iowa permitted only one form of gambling— parimutuel betting at racetracks — the proceeds of which it taxed at a six percent rate. Iowa Code § 99D.15 (1984). In 1989, it authorized other forms of gambling, including slot machines and other gambling games on riverboats, though it limited bets to $5 and losses to $200 per excursion. 1989 Iowa Acts ch. 67, §§ 3, 9(2); Iowa Code § 99F.3 (1996). Iowa taxed adjusted revenues from slot machine gambling at graduated rates, with a top rate of 20 percent. 1989 Iowa Acts ch. 67, §11; Iowa Code §99F.ll (1996).

In 1994, Iowa enacted a law that, among other things, removed the riverboat gambling $5/$200 bet/loss limits, 1994 Iowa Acts ch. 1021, §19, authorized racetracks to operate slot machines, § 13; Iowa Code §§99F.1(9), 99F.4A (1996), and imposed a graduated tax upon racetrack slot machine adjusted revenues with a top rate that started at 20 percent and would automatically rise over time to 36 percent, 1994 Iowa Acts ch. 1021, § 26; Iowa Code § 99F.11 (1996). The Act did not alter the tax rate on riverboat slot machine adjusted revenues, thereby leaving the existing 20 percent rate in place. Ibid.

Respondents, a group of racetracks and an association of dog owners, brought this lawsuit in state court challenging the 1994 legislation on the ground that the 20 percent/36 percent tax rate difference that it created violated the Federal Constitution’s Equal Protection Clause, Amdt. 14, § 1. The State District Court upheld the statute. The Iowa Supreme Court disagreed and, by a 4-to-3 vote, reversed the District Court. The majority wrote that the “differential tax completely defeats the alleged purpose” of the statute, namely, “to help the racetracks recover from economic distress,” that there could “be no rational reason for this differential tax,” and that the Equal Protection Clause consequently forbids its imposition. 648 N. W. 2d, at 560-562. We granted cer-tiorari to review this determination.

II

Respondents initially claim that the Iowa Supreme Court’s decision rests independently upon state law. And they argue that this state-law holding bars review of the federal issue. We disagree. The Iowa Supreme Court’s opinion, after setting forth the language of both State and Federal Equal Protection Clauses, says that “Iowa courts are to ‘apply the same analysis in considering the state equal protection claims as ... in considering the federal equal protection claim.’” Id., at 558. We have previously held that, in such circumstances, we shall consider a state-court decision as resting upon federal grounds sufficient to support this Court’s jurisdiction. See Pennsylvania v. Muniz, 496 U. S. 582, 588, n. 4 (1990) (no adequate and independent state ground where the court says that state and federal constitutional protections are “ ‘identical’ ”). Cf. Michigan v. Long, 463 U. S. 1032, 1041-1042 (1983) (jurisdiction exists where federal cases are not “being used only for the purpose of guidance” and instead are “compel[ling] the result”). We therefore find that this Court has jurisdiction to review the Iowa Supreme Court’s determination.

III

We here consider whether a difference in state tax rates violates the Fourteenth Amendment’s mandate that “[nlo State shall. . . deny to any person ... the equal protection of the laws,” § 1. The law in question does not distinguish on the basis of, for example, race or gender. See, e. g., Loving v. Virginia, 388 U. S. 1 (1967); United States v. Virginia, 618 U. S. 516 (1996). It does not distinguish between instate and out-of-state businesses. See, e.g., Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869 (1985). Neither does it favor a State’s long-time residents at the expense of residents who have more recently arrived from other States. Cf. Hooper v. Bernalillo County Assessor, 472 U. S. 612 (1985). Rather, the law distinguishes for tax purposes among revenues obtained within the State of Iowa by two enterprises, each of which does business in the State. Where that is so, the law is subject to rational-basis review:

“[T]he Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992) (citations omitted).

See also id., at 11 (rational-basis review “is especially deferential in the context of classifications made by complex tax laws”); Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 527 (1959) (the Equal Protection Clause requires States, when enacting tax laws, to “proceed upon a rational basis” and not to “resort to a classification that is palpably arbitrary”).

The Iowa Supreme Court found that the 20 percent/36 percent tax rate differential failed to meet this standard because, in its view, that difference “frustrated” what it saw as the law’s basic objective, namely, rescuing the racetracks from economic distress. 648 N. W. 2d, at 561. And no rational person, it believed, could claim the contrary. Id., at 561-562.

The Iowa Supreme Court could not deny, however, that the Iowa law, like most laws, might predominantly serve one general objective, say, helping the racetracks, while containing subsidiary provisions that seek to achieve other desirable (perhaps even contrary) ends as well, thereby producing a law that balances objectives but still serves the general objective when seen as a whole. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 181 (1980) (Stevens, J., concurring in judgment) (legislation is often the “product of multiple and somewhat inconsistent purposes that led to certain compromises”). After all, if every subsidiary provision in a law designed to help racetracks had to help those racetracks and nothing more, then (since any tax rate hurts the racetracks when compared with a lower rate) there could be no taxation of the racetracks at all.

Neither could the Iowa Supreme Court deny that the 1994 legislation, seen as a whole, can rationally be understood to do what that court says it seeks to do, namely, advance the racetracks’ economic interests. Its grant to the racetracks of authority to operate slot machines should help the racetracks economically to some degree — even if its simultaneous imposition of a tax on slot machine adjusted revenues means that the law provides less help than respondents might like. At least a rational legislator might so believe. And the Constitution grants legislators, not courts, broad authority (within the bounds of rationality) to decide whom they wish to help with their tax laws and how much help those laws ought to provide. “The ‘task of classifying persons for . . . benefits ... inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line,’ and the fact the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” Id., at 179 (citation omitted). See also ibid. (judicial review is “at an end” once the court identifies a plausible basis on which the legislature may have relied); Nordlinger, supra, at 17-18.

Once one realizes that not every provision in a law must share a single, objective, one has no difficulty finding the necessary rational support for the 20 percent/36 percent differential here at issue. That difference, harmful to the racetracks, is helpful to the riverboats, which, as respondents concede, were also facing financial peril, Brief for Respondents 8. See also 648 N. W. 2d, at 557. These two characterizations are but opposite sides of the same coin. Each reflects a rational way for a legislator to view the matter. And aside from simply aiding the financial position of the riverboats, the legislators may have wanted to encourage the economic development of river communities or to promote riverboat history, say, by providing incentives for riverboats to remain in the State, rather than relocate to other States. See Gaming Study Committee Report (Sept. 3, 1993), reprinted in App. 76-84, 86. Alternatively, they may have wanted to protect the reliance interests of riverboat operators, whose adjusted slot machine revenue had previously been taxed at the 20 percent rate. All these objectives are rational ones, which lower riverboat tax rates could further and which suffice to uphold the different tax rates. See Allied Stores, supra, at 528; Nordlinger, supra, at 12. See also Madden v. Kentucky, 309 U. S. 83, 88 (1940) (imposing burden on respondents to “negative every conceivable basis” that might support different treatment).

Respondents argue that Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989), holds to the contrary. Brief for Respondents 21. In that case, the Court held that substantial differences in the level of property tax assessments that West Virginia imposed upon similar properties violated the Federal Equal Protection Clause. But the Court later stated, when it upheld in Nordlinger a California statute creating similar differences in property taxes, that “an obvious and critical factual difference between this case and Allegheny Pittsburgh is the absence of any indication in Allegheny Pittsburgh that the policies underlying an acquisition-value taxation scheme could conceivably have been the purpose for the ... unequal assessment.” 505 U. S., at 14-15. The Court in Nordlinger added that “Allegheny Pittsburgh was the rare case where the facts precluded any plausible inference that the reason for the unequal assessment practice was to achieve the benefits of an acquisition-value tax scheme.” Id., at 16-17, and n. 7. Here, “the facts” do not “preclud[e]” an inference that the reason for the different tax rates was to help the riverboat industry or the river communities. Id., at 16.

IV

We conclude that there is “a plausible policy reason for the classification,” that the legislature “rationally.may have . . . considered ... true” the related justifying “legislative facts,” and that the “relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Id., at 11. Consequently the State’s differential tax rate does not violate the Federal Equal Protection Clause. The Iowa Supreme Court’s judgment to the contrary is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

So ordered.


author: Per Curiam.

text:
    DOW CHEMICAL CO. et al. v. STEPHENSON et al.
    No. 02-271.
    Argued February 26, 2003
    Decided June 9, 2003

      Seth P. Waxman argued the cause for petitioners. With him on the briefs were Louis R. Cohen, Andrew L. Frey, Philip Allen Lacovara, Charles A. Rothfeld, Rickard B. Katslcee, Michele L. Odorizzi, Steven Brock, and John C. Sabetta.

      Gerson H. Smoger argued the cause for respondents. With him on the brief were Mark R. Cuker and Ronald Simon.

      Briefs of amici curiae urging reversal were filed for the American Insurance Association et al. by Herbert M. Wachtell, Jeffrey M. Wintrier, Craig A Berrington, Lynda S. Mounts, Jan S. Amundson, Quentin Rie-gel, and Robin S. Conrad; for the Product Liability Advisory Council by John H. Beisner; and for the Washington Legal Foundation by Daniel J. Popeo and Rickard A Samp.

      Briefs of amici curiae urging affirmance were filed for the State of Louisiana et al. by Richard P. Ieyoub, Attorney General of Louisiana, and by the Attorneys General for their respective States as follows: Mike Beebe of Arkansas, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, and Mike McGrath of Montana; for the American Legion et al. by William A Rossbach and P. B. Onderdonk, Jr.; for the Association of Trial Lawyers of America by Jeffrey Robert White; for Law Professors by David L. Shapiro, John Leubsdorf, and Henry P. Monaghan; for the Lymphoma Foundation of America et al. by Raphael Metzger; for Public Citizen by Brian Wolfman; and for Trial Lawyers for Public Justice by Brent M. Rosenthal, Leslie Brueckner, and Misty A Farris.

        Patrick Lysaught filed a brief for the Defense Research Institute as amicus curiae.

   Per Curiam.

With respect to respondents Joe Isaacson and Phyllis Lisa Isaacson, the judgment of the Court of Appeals for the Second Circuit is vacated, and the case is remanded for further consideration in light of Syngenta Crop Protection, Inc. v. Henson, 537 U. S. 28 (2002).

With respect to respondents Daniel Raymond Stephenson, Susan Stephenson, Daniel Anthony Stephenson, and Emily Elizabeth Stephenson, the judgment is affirmed by an equally divided Court.

Justice Stevens took no part in the consideration or decision of this case.


author: Justice Scalia Justice Souter,

text:
    VIRGINIA v. HICKS
    No. 02-371.
    Argued April 30, 2003
    Decided June 16, 2003

      Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 124.

      William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the briefs were Jerry W. Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Christy A. McCormick and A. Cameron O’Brion, Assistant Attorneys General.

      Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General Chertoff and McCallum, James A. Feld-man, Michael Jay Singer, and Stephanie R. Marcus.

      Steven D. Benjamin argued the cause for respondent. With him on the brief were Amanda Frost, Brian Wolfman, and Alan B. Morrison.

      Briefs of amici curiae urging reversal were filed for the City of Richmond et al. by William G. Broaddus, Jonathan T. Blank, William H. Baxter II, Godfrey T. Pinn, Jr., and John A. Rupp; for the Council of Large Public Housing Authorities et al. by Robert A. Graham, William F. Maher, and Carl A, S. Coan III; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National League of Cities et al. by Richard Ruda and James I. Crowley.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M. Carpenter; for the Richmond Tenants Organization et al. by Catherine

        M. Bishop; for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler and Robert M. O’Neil; and for Watchtower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and Philip Brumley.

      A brief of amici curiae was filed for the State of Alabama et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Lay-ton, State Solicitor, Erwin O. Switzer III, and Michele L. Jackson, Assistant Attorney General of Alabama, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Charlie J. Crist, Jr., of Florida, Mike Moore of Mississippi, Jim Petro of Ohio, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, An-abelle Rodriguez of Puerto Rico, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, and Mark L. Shurtleff of Utah.

   Justice Scalia

delivered the opinion of the Court.

The issue presented in this case is whether the Richmond Redevelopment and Housing Authority’s trespass policy is facially invalid under the First Amendment’s overbreadth doctrine.

H-l

The Richmond Redevelopment and Housing Authority (RRHA) owns and operates a housing development for low-income residents called Whitcomb Court. Until June 23, 1997, the city of Richmond owned the streets within Whit-comb Court. The city council decided, however, to “privatize” these streets in an effort to combat rampant crime and drug dealing in Whitcomb Court — much of it committed and conducted by nonresidents. The council enacted Ordinance No. 97-181-197, which provided, in part:

“‘§1. That Carmine Street, Bethel Street, Ambrose Street, Deforrest Street, the 2100-2300 Block of Sussex Street and the 2700-2800 Block of Magnolia Street, in Whitcomb Court... be and are hereby closed to public use and travel and abandoned as streets of the City of Richmond.’ ” App. to Pet. for Cert. 93-94.

The city then conveyed these streets by a recorded deed to the RRHA (which is a political subdivision of the Commonwealth of Virginia). This deed required the RRHA to “ ‘give the appearance that the closed street, particularly at the entrances, are no longer public streets and that they are in fact private streets.’” Id., at 95. To this end, the RRHA posted red-and-white signs on each apartment building — and every 100 feet along the streets — of Whitcomb Court, which state: ‘“NO TRESPASSING^ PRIVATE PROPERTY[.] YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA. UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION. UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS EXPENSE.’” Pet. for Cert. 5. The RRHA also enacted a policy authorizing the Richmond police

“‘to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property.’” App. to Pet. for Cert. 98-99 (emphasis added).

Persons who trespass after being notified not to return are subject to prosecution under Va. Code Ann. § 18.2-119 (1996):

“If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof ... he shall be guilty of a Class 1 misdemeanor.”

B

Respondent Kevin Hicks, a nonresident of Whitcomb Court, has been convicted on two prior occasions of trespassing there and once of damaging property there. Those convictions are not at issue in this case. While the property-damage charge was pending, the RRHA gave Hicks written notice barring him from Whitcomb Court, and Hicks signed this notice in the presence of a police officer. Twice after receiving this notice Hicks asked for permission to return; twice the Whitcomb Court housing manager said “no.” That did not stop Hicks; in January 1999 he again trespassed at Whitcomb Court and was arrested and convicted under §18.2-119.

At trial, Hicks maintained that the RRHA’s policy limiting access to Whitcomb Court was both unconstitutionally over-broad and void for vagueness. On appeal of his conviction, a three-judge panel of the Court of Appeals of Virginia initially rejected Hicks’ contentions, but the en banc Court of Appeals reversed. That court held that the streets of Whit-comb Court were a “traditional public forum,” notwithstanding the city ordinance declaring them closed, and vacated Hicks’ conviction on the ground that RRHA’s policy violated the First Amendment. 36 Va. App. 49, 56, 548 S. E. 2d 249, 253 (2001). The Virginia Supreme Court affirmed the en banc Court of Appeals, but for different reasons. Without deciding whether the streets of Whitcomb Court were a public forum, the Virginia Supreme Court concluded that the RRHA policy was unconstitutionally overbroad. While acknowledging that the policy was “designed to punish activities that are not protected by the First Amendment,” 264 Va. 48, 58, 568 S. E. 2d 674, 680 (2002), the court held that “the policy also prohibits speech and conduct that are clearly protected by the First Amendment,” ibid. The court found the policy defective because it vested too much discretion in Whitcomb Court’s manager to determine whether an individual’s presence at Whitcomb Court is “authorized,” allowing her to “prohibit speech that she finds personally distasteful or offensive even though such speech may be protected by the First Amendment.” Id., at 60, 563 S. E. 2d, at 680-681. We granted the Commonwealth’s petition for certiorari. 537 U. S. 1169 (2003).

II

A

Hicks does not contend that he was engaged in constitutionally protected conduct when arrested; nor does he challenge the validity of the trespass statute under which he was convicted. Instead he claims that the RRHA policy barring him from Whitcomb Court is overbroad under the First Amendment, and cannot be applied to him — or anyone else. The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984). The showing that a law punishes a “substantial” amount of protected free speech, “judged in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), suffices to invalidate all enforcement of that law, “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression,” id., at 613. See also Virginia v. Black, 538 U. S. 343, 367 (2003); New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); Dombrowski v. Pfister, 380 U. S. 479, 491, and n. 7, 497 (1965).

We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or “chill” constitutionally protected speech — especially when the overbroad statute imposes criminal sanctions. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980); Bates v. State Bar of Ariz., 433 U. S. 350, 380 (1977); NAACP v. Button, 371 U. S. 415, 433 (1963). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, Dombrowski, supra, at 486-487—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.

As we noted in Broadrick, however, there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law — particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.” 413 U. S., at 615. For there are substantial social costs created by the over-breadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law “overbroad,” we have insisted that a law’s application to protected speech be “substantial,” not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, ibid., before applying the “strong medicine” of overbreadth invalidation, id., at 613.

B

Petitioner asks this Court to impose restrictions on “the use of overbreadth standing,” limiting the availability of facial overbreadth challenges to those whose own conduct involved some sort of expressive activity. Brief for Petitioner 13, 24-31. The United States as amicus curiae makes the same proposal, Brief for United States as Amicus Curiae 14-17, and urges that Hicks’ facial challenge to the RRHA trespass policy “should not have been entertained,” id., at 10. The problem with these proposals is that we are reviewing here the decision of a State Supreme Court; our standing rules limit only the federal courts’ jurisdiction over certain claims. “[S]tate courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law.” ASARCO Inc. v. Radish, 490 U. S. 605, 617 (1989). Whether Virginia’s courts should have entertained this overbreadth challenge is entirely a matter of state law.

This Court may, however, review the Virginia Supreme Court’s holding that the RRHA policy violates the First Amendment. We may examine, in particular, whether the claimed overbreadth in the RRHA policy is sufficiently “substantial” to produce facial invalidity These questions involve not standing, but “the determination of [a] First Amendment challenge on the merits.” Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 958-959 (1984). Because it is the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question is clear under ASARCO, 490 U. S., at 617-618. The Commonwealth has suffered, as a consequence of the Virginia Supreme Court’s “final judgment altering tangible legal rights,” id., at 619, an actual injury in fact — inability to prosecute Hicks for trespass — that is sufficiently “distinct and palpable” to confer standing under Article III, Warth v. Seldin, 422 U. S. 490, 501 (1975). We accordingly proceed to that merits inquiry, leaving for another day the question whether our ordinary rule that a litigant may not rest a claim to relief on the legal rights or interests of third parties, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982), would exclude a case such as this from initiation in federal court.

C

The Virginia Supreme Court found that the RRHA policy allowed Gloria S. Rogers, the manager of Whitcomb Court, to exercise “unfettered discretion” in determining who may use the RRHA’s property. 264 Va., at 59, 563 S. E. 2d, at 680. Specifically, the court faulted an “unwritten” rule that persons wishing to hand out flyers on the sidewalks of Whit-comb Court need to obtain Rogers’ permission. Ibid. This unwritten portion of the RRHA policy, the court concluded, unconstitutionally allows Rogers to “prohibit speech that she finds personally distasteful or offensive.” Id., at 60, 563 S. E. 2d, at 681.

Hicks, of course, was not arrested for leafleting or demonstrating without permission. He violated the RRHA’s written rule that persons who receive a barment notice must not return to RRHA property. The Virginia Supreme Court, based on its objection to the “unwritten” requirement that demonstrators and leafleters obtain advance permission, declared the entire RRHA trespass policy overbroad and void — including the written rule that those who return after receiving a barment notice are subject to arrest. Whether these provisions are severable is of course a matter of state law, see Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per curiam), and the Virginia Supreme Court has implicitly decided that they are not — that all components of the RRHA trespass policy must stand or fall together. It could not properly decree that they fall by reason of the overbreadth doctrine, however, unless the trespass policy, taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep. See Broadrick, 413 U. S., at 615. The overbreadth claimant bears the burden of demonstrating, “from the text of [the law] and from actual fact,” that substantial overbreadth exists. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988).

Hicks has not made such a showing with regard to the RRHA policy taken as a whole — even assuming, arguendo, the unlawfulness of the policy’s, “unwritten” rule that demonstrating and leafleting at Whitcomb Court require permission from Gloria Rogers. Consider the “no-return” notice served on nonresidents who have no “legitimate business or social purpose” in Whitcomb Court: Hicks has failed to demonstrate that this notice would even be given to anyone engaged in constitutionally protected speech. Gloria Rogers testified that leafleting and demonstrations are permitted at Whitcomb Court, so long as permission is obtained in advance. App. to Pet. for Cert. 100-102. Thus, “legitimate business or social purpose” evidently includes leafleting and demonstrating; otherwise, Rogers would lack authority to permit those activities on RRHA property. Hicks has failed to demonstrate that any First Amendment activity falls outside the “legitimate business or social purpose[s]” that permit entry. As far as appears, until one receives a barment notice, entering for a First Amendment purpose is not a trespass.

As for the written provision authorizing the police to arrest those who return to Whitcomb Court after receiving a barment notice: That certainly does not violate the First Amendment as applied to persons whose postnotice entry is not for the purpose of engaging in constitutionally protected speech. And Hicks has not even established that it would violate the First Amendment as applied to persons whose postnotice entry is for that purpose. Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to arrest those who reenter after trespassing and after being warned not to return — regardless of whether, upon their return, they seek to engage in speech. Neither the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment. Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration. Here, as there, it is Hicks’ nonexpressive conduct— his entry in violation of the notice-barment rule — not his speech, for which he is punished as a trespasser.

Most importantly, both the notice-barment rule and the “legitimate business or social purpose” rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression. The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer playérs, and others not engaged in constitutionally protected conduct — a group that would seemingly far outnumber First Amendment speakers. Even assuming invalidity of the “unwritten” rule that requires leafleters and demonstrators to obtain advance permission from Gloria Rogers, Hicks has not shown, based on the record in this ease, that the RRHA trespass policy as a whole prohibits a “substantial” amount of protected speech in relation to its many legitimate applications. That is not surprising, since the overbreadth doctrine’s concern with “chilling” protected speech “attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct.” Broadrick, supra, at 615. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating). Applications of the RRHA policy that violate the First Amendment can still be remedied through as-applied litigation, but the Virginia Supreme Court should not have used the “strong medicine” of overbreadth to invalidate the entire RRHA trespass policy. Whether respondent may challenge his conviction on other grounds — and whether those claims have been properly preserved — are issues we leave open on remand.

* * *

For these reasons, we reverse the judgment of the Virginia Supreme Court and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Souter,

with whom Justice Breyer joins,

concurring.

I join the Court’s opinion and add this afterword to flag an issue of no consequence here, but one on which a future case might turn. In comparing invalid applications against valid ones for purposes of the First Amendment overbreadth doctrine, the Supreme Court of Virginia apparently assumed that the appropriate focus of the analysis was the “unwritten” element of the housing authority’s trespass policy, that is, the requirement that nonresidents distributing literature or demonstrating on the property obtain prior authorization. 264 Va. 48, 58-60, 563 S. E. 2d 674, 680-681 (2002) (finding that the “unwritten” portion of the policy, although designed to punish unprotected activities, allowed the housing manager to prohibit protected speech “that she finds personally distasteful or offensive” and “speech that is political or religious in nature”). We, on the other hand, take a broader view of the relevant law, by looking to the potential applications of the entire trespass policy, written and unwritten. Ante, at 121-124. It does not matter here, however, which position one takes on the appropriate “law” whose over-breadth is to be assessed, for there is no substantial over-breadth either way. Regardless of the scope of the law that forms the denominator of the fraction here, the numerator of potential invalid applications is too small to result in a finding of substantial overbreadth. But in other circumstances, the scope of the law chosen for comparison with invalid applications might decide the case. It might be dispositive whether, say, a city’s speech ordinance for a public park is analyzed alone or as one element of the combined policies governing expression in public schoolyards, municipal cemeteries, and the city council chamber. Suffice it to say that today’s decision does not address how to go about identifying the scope of the relevant law for purposes of overbreadth analysis.

      The letter stated, in part: ‘“This letter serves to inform you that effective immediately you are not welcome on Richmond Redevelopment and Housing Authority’s Whitcomb Court or any Richmond Redevelopment and Housing Authority property. This letter is an official notice informing you that you are not to trespass on RRHA property. If you are seen or caught on the premises, you will be subject to arrest by the police.’ ” 264 Va. 48, 53, 563 S. E. 2d 674, 677 (2002).

       As noted, the Virginia Supreme Court held that invalidity of the RRHA policy entitled Hicks to vacatur of his conviction under the unquestionably valid trespass statute, which Hicks unquestionably violated. We do not reach the question whether federal law compels this result.

       Contrary to Justice Souter's suggestion, post, at 124 (concurring opinion), the Supreme Court of Virginia did not focus solely on the “unwritten” element of the RRHA trespass policy “[i]n comparing invalid applications against valid ones for purposes of the First Amendment over-breadth doctrine.” The fact is that its opinion contains no “comparing” of valid and invalid applications whatever; the proportionality aspect of our overbreadth doctrine is simply ignored. Since, however, the Virginia Supreme Court struck down the entire RRHA trespass policy, the question presented here is whether the entire policy is substantially overbroad.