source: Caselaw Access Project

author: Justice Thomas

license: Public Domain

text:
    WEYERHAEUSER CO. v. ROSS-SIMMONS HARDWOOD LUMBER CO., INC.
    No. 05-381.
    Argued November 28, 2006
    Decided February 20, 2007

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

      Andrew J. Pincus argued the cause for petitioner. With him on the briefs were Charles A. Rothfeld, Guy C. Stephenson, Stephen V. Bomse, M. Laurence Popofsky, Kevin J. Ar-quit, and Joseph F. Tringali.

      Kannon K. Shanmugam argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Barnett, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Masoudi, Catherine G. O’Sullivan, and Adam D. Hirsh.

      Michael E. Haglund argued the cause for respondent. With him on the brief were Michael K. Kelley and Roy Pulvers.

      Briefs of amici curiae urging reversal were filed for AT&T Inc. et al. by A. Douglas Melamed, Jonathan Nuechterlein, William M. Schur, Ronald A. Stern, John Thorne, and Paul J. Larkin, Jr.; for the Business Roundtable et al. by Janet L. McDavid, Catherine E. Stetson, Jessica L. Ellsworth, Jan S. Amundson, and Quentin Riegel; for the Chamber of Commerce of the United States of America et al. by Roy T. Englert, Jr., Donald J. Russell, Mark T Stancil, Stephen A Bokat, Robin S. Conrad, Amar D. Sarwal, and Richard S. Wasserstrom; for Economists by Joe Sims and Beth Heifetz; for Law Professors by Joseph J. Simons and Moses Silverman; and for Timberland Owners and Managers by Jeffrey A. Lam-ken and Barnes H. Ellis.

      Briefs of amici curiae urging affirmance were filed for the State of California et al. by Hardy Myers, Attorney General of Oregon, and Tim D. Nord, Senior Assistant Attorney General, by Bill Lockyer, Attorney General of California, Thomas Greene, Chief Assistant Attorney General, Kathleen E. Foote, Senior Assistant Attorney General, and Emilio E. Varanini IV, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Thomas J. Miller of Iowa, Charles C. Foti, Jr., of Louisiana, Mike McGrath of Montana, Darrell V. McGraw, Jr., of West Virginia, and Peggy A Lautenschlager of Wisconsin; for the American Antitrust Institute by Jonathan L. Rubin, Jonathan W. Cuneo, and Robert H. Lande; and for Forest Industry Participants by R. Daniel Lindahl.

   Justice Thomas

delivered the opinion of the Court.

Respondent Ross-Simmons, a sawmill, sued petitioner Weyerhaeuser, alleging that Weyerhaeuser drove it out of business by bidding up the price of sawlogs to a level that prevented Ross-Simmons from being profitable. A jury returned a verdict in favor of Ross-Simmons on its monopolization claim, and the Ninth Circuit affirmed. We granted certiorari to decide whether the test we applied to claims of predatory pricing in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209 (1993), also applies to claims of predatory bidding. We hold that it does. Accordingly, we vacate the judgment of the Court of Appeals.

I

This antitrust case concerns the acquisition of red alder sawlogs by the mills that process those logs in the Pacific Northwest. These hardwood-lumber mills usually acquire logs in one of three ways. Some logs are purchased on the open bidding market. Some come to the mill through standing short- and long-term agreements with timberland owners. And others are harvested from timberland owned by the sawmills themselves. The allegations relevant to our decision in this case relate to the bidding market.

Ross-Simmons began operating a hardwood-lumber sawmill in Longview, Washington, in 1962. Weyerhaeuser entered the Northwestern hardwood-lumber market in 1980 by acquiring an existing lumber company. Weyerhaeuser gradually increased the scope of its hardwood-lumber operation, and it now owns six hardwood sawmills in the region. By 2001, Weyerhaeuser’s mills were acquiring approximately 65 percent of the alder logs available for sale in the region. App. 754a, 341a.

From 1990 to 2000, Weyerhaeuser made more than $75 million in capital investments in its hardwood mills in the Pacific Northwest. Id., at 159a. During this period, production increased at every Northwestern hardwood mill that Weyerhaeuser owned. Id., at 160a. In addition to increasing production, Weyerhaeuser used “state-of-the-art technology,” id., at 500a, including sawing equipment, to increase the amount of lumber recovered from every log, id., at 500a, 549a. By contrast, Ross-Simmons appears to have engaged in little efficiency-enhancing investment. See id., at 438a-441a.

Logs represent up to 75 percent of a sawmill’s total costs. See id., at 169a. And from 1998 to 2001, the price of alder sawlogs increased while prices for finished hardwood lumber fell. These divergent trends in input and output prices cut into the mills’ profit margins, and Ross-Simmons suffered heavy losses during this time. See id., at 155a (showing a negative net income from 1998 to 2000). Saddled with several million dollars in debt, Ross-Simmons shut down its mill completely in May 2001. Id., at 156a.

Ross-Simmons blamed Weyerhaeuser for driving it out of business by bidding up input costs, and it filed an antitrust suit against Weyerhaeuser for monopolization and attempted monopolization under § 2 of the Sherman Act. See 26 Stat. 209, as amended, 15 U. S. C. §2 (2000 ed., Supp. IV). Ross-Simmons alleged that, among other anticompetitive acts, Weyerhaeuser had used “its dominant position in the alder sawlog market to drive up the prices for alder sawlogs to levels that severely reduced or eliminated the profit margins of Weyerhaeuser’s alder sawmill competition.” App. 135a. Proceeding in part on this “predatory-bidding” theory, Ross-Simmons argued that Weyerhaeuser had overpaid for alder sawlogs to cause sawlog prices to rise to artificially high levels as part of a plan to drive Ross-Simmons out of business. As proof that this practice had occurred, Ross-Simmons pointed to Weyerhaeuser’s large share of the alder purchasing market, rising alder sawlog prices during the alleged predation period, and Weyerhaeuser’s declining profits during that same period.

Prior to trial, Weyerhaeuser moved for summary judgment on Ross-Simmons’ predatory-bidding theory. Id., at 6a-24a. The District Court denied the motion. Id., at 58a-69a. At the close of the 9-day trial, Weyerhaeuser moved for judgment as a matter of law, or alternatively, for a new trial. The motions were based in part on Weyerhaeuser’s argument that Ross-Simmons had not satisfied the standard this Court set forth in Brooke Group, supra. App. 940a-942a. The District Court denied Weyerhaeuser’s motion. Id., at 720a, App. to Pet. for Cert. 46a. The District Court also rejected proposed predatory-bidding jury instructions that incorporated elements of the Brooke Group test. App. 725a-730a, 978a. Ultimately, the District Court instructed the jury that Ross-Simmons could prove that Weyerhaeuser’s bidding practices were anticompetitive acts if the jury concluded that Weyerhaeuser “purchased more logs than it needed, or paid a higher price for logs than necessary, in order to prevent [Ross-Simmons] from obtaining the logs they needed at a fair price.” Id., at 978a. Finding that Ross-Simmons had proved its claim for monopolization, the jury returned a $26 million verdict against Weyerhaeuser. Id., at 967a. The verdict was trebled to approximately $79 million.

Weyerhaeuser appealed to the Court of Appeals for the Ninth Circuit. There, Weyerhaeuser argued that Brooke Group's standard for claims of predatory pricing should also apply to claims of predatory bidding. The Ninth Circuit disagreed and affirmed the verdict against Weyerhaeuser. Confederated Tribes of Siletz Indians of Ore. v. Weyerhaeuser Co., 411 F. 3d 1030, 1035-1036 (2005).

The Court of Appeals reasoned that “buy-side predatory bidding” and “sell-side predatory pricing,” though similar, are materially different in that predatory bidding does not necessarily benefit consumers or stimulate competition in the way that predatory pricing does. Id., at 1037. Concluding that “the concerns that led the Brooke Group Court to establish a high standard of liability in the predatory pricing context do not carry over to this predatory bidding context with the same force,” the Court of Appeals declined to apply Brooke Group to Ross-Simmons’ claims of predatory bidding. 411 F. 3d, at 1038. The Court of Appeals went on to con-elude that substantial evidence supported a finding of liability on the predatory-bidding theory. Id., at 1045. We granted certiorari to decide whether Brooke Group applies to claims of predatory bidding. 548 U. S. 903 (2006). We hold that it does, and we vacate the Court of Appeals’ judgment.

II

In Brooke Group, we considered what a plaintiff must show in order to succeed on a claim of predatory pricing under §2 of the Sherman Act. In a typical predatory-pricing scheme, the predator reduces the sale price of its product (its output) to below cost, hoping to drive competitors out of business. Then, with competition vanquished, the predator raises output prices to a supracompetitive level. See Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 584-585, n. 8 (1986) (describing predatory pricing). For the scheme to make economic sense, the losses suffered from pricing goods below cost must be recouped (with interest) during the supracompetitive-pricing stage of the scheme. Id., at 588-589; Cargill, Inc. v. Monfort of Colo., Inc., 479 U. S. 104, 121-122, n. 17 (1986); see also R. Bork, The Antitrust Paradox 145 (1978). Recognizing this economic reality, we established two prerequisites to recovery on claims of predatory pricing. “First, a plaintiff seeking to establish competitive injury resulting from a rival’s low prices must prove that the prices complained of are below an appropriate measure of its rival’s costs.” Brooke Group, 509 U. S., at 222. Second, a plaintiff must demonstrate that “the competitor had ... a dangerous probability] of recouping its investment in below-cost prices.” Id., at 224.

The first prong of the test — requiring that prices be below cost — is necessary because “[a]s a general rule, the exclusionary effect of prices above a relevant measure of cost either reflects the lower cost structure of the alleged predator, and so represents competition on the merits, or is beyond the practical ability of a judicial tribunal to control.” Id., at 223. We were particularly wary of allowing recovery for above-cost price cutting because allowing such claims could, perversely, “chil[l] legitimate price cutting,” which directly benefits consumers. See id., at 223-224; Atlantic Richfield Co. v. USA Petroleum Co., 495 U. S. 328,340 (1990) (“Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition”). Thus, we specifically declined to allow plaintiffs to recover for above-cost price cutting, concluding that “discouraging a price cut and ... depriving consumers of the benefits of lower prices ... does not constitute sound antitrust policy.” Brooke Group, supra, at 224.

The second prong of the Brooke Group test — requiring that there be a dangerous probability of recoupment of losses — is necessary because, without a dangerous probability of recoupment, it is highly unlikely that a firm would engage in predatory pricing. As the Court explained in Matsushita, a firm engaged in a predatory-pricing scheme makes an investment — the losses suffered plus the profits that would have been realized absent the scheme — at the initial, below-cost-selling phase. 475 U. S., at 588-589. For that investment to be rational, a firm must reasonably expect to recoup in the long run at least its original investment with supracompetitive profits. Ibid.; Brooke Group, 509 U. S., at 224. Without such a reasonable expectation, a rational firm would not willingly suffer definite, short-run losses. Recognizing the centrality of recoupment to a predatory-pricing scheme, we required predatory-pricing plaintiffs to “demonstrate that there is a likelihood that the predatory scheme alleged would cause a rise in prices above a competitive level that would be sufficient to compensate for the amounts expended on the predation, ineluding the time value of the money invested in it.” Id., at 225.

We described the two parts of the Brooke Group test as “essential components of real market injury” that were “not easy to establish.” Id., at 226. We also reiterated that the costs of erroneous findings of predatory-pricing liability were quite high because “ ‘[t]he mechanism by which a firm engages in predatory pricing — lowering prices — is the same mechanism by which a firm stimulates competition,’” and, therefore, mistaken findings of liability would “ ‘ “chill the very conduct the antitrust laws are designed to protect.”’” Ibid, (quoting Cargill, supra, at 122, n. 17).

III

Predatory bidding, which Ross-Simmons alleges in this case, involves the exercise of market power on the buy side or input side of a market. In a predatory-bidding scheme, a purchaser of inputs “bids up the market price of a critical input to such high levels that rival buyers cannot survive (or compete as vigorously) and, as a result, the predating buyer acquires (or maintains or increases its) monopsony power.” Kirkwood, Buyer Power and Exclusionary Conduct, 72 Antitrust L. J. 625, 652 (2005) (hereinafter Kirkwood). Monopsony power is market power on the buy side of the market. Blair & Harrison, Antitrust Policy and Monopsony, 76 Cornell L. Rev. 297 (1991). As such, a monopsony is to the buy side of the market what a monopoly is to the sell side and is sometimes colloquially called a “buyer’s monopoly.” See id., at 301,320; Piraino, A Proposed Antitrust Approach to Buyers’ Competitive Conduct, 56 Hastings L. J. 1121,1125 (2005).

A predatory bidder ultimately aims to exercise the monopsony power gained from bidding up input prices. To that end, once the predatory bidder has caused competing buyers to exit the market for purchasing inputs, it will seek to “restrict its input purchases below the competitive level,” thus “reduc[ing] the unit price for the remaining input[s] it purchases.” Salop, Anticompetitive Overbuying by Power Buyers, 72 Antitrust L. J. 669,672 (2005) (hereinafter Salop). The reduction in input prices will lead to “a significant cost saving that more than offsets the profit[s] that would have been earned on the output.” Ibid. If all goes as planned, the predatory bidder will reap monopsonistic profits that will offset any losses suffered in bidding up input prices. (In this case, the plaintiff was the defendant’s competitor in the input-purchasing market. Thus, this case does not present a situation of suppliers suing a monopsonist buyer under § 2 of the Sherman Act, nor does it present a risk of significantly increased concentration in the market in which the monopsonist sells, i. e., the market for finished lumber.)

IV

A

Predatory-pricing and predatory-bidding claims are analytically similar. See Hovenkamp, The Law of Exclusionary Pricing, 2 Competition Policy Int’l, No. 1, pp. 21, 35 (Spring 2006). This similarity results from the close theoretical connection between monopoly and monopsony. See Kirkwood 653 (describing monopsony as the “mirror image” of monopoly); Khan v. State Oil Co., 93 F. 3d 1358, 1361 (CA7 1996) (“Monopsony pricing... is analytically the same as monopoly or cartel pricing and [is] so treated by the law”), vacated and remanded on other grounds, 522 U. S. 3 (1997); Vogel v. American Soc. of Appraisers, 744 F. 2d 598, 601 (C A7 1984) (“[M]onopoly and monopsony are symmetrical distortions of competition from an economic standpoint”); see also Hearing on Monopsony Issues in Agriculture: Buying Power of Processors in Our Nation’s Agricultural Markets before the Senate Committee on the Judiciary, 108th Cong., 1st Sess., 13 (2004). The kinship between monopoly and monopsony suggests that similar legal standards should apply to claims of monopolization and to claims of monopsonization. Cf. Noll, “Buyer Power” and Economic Policy, 72 Antitrust L. J. 589, 591 (2005) (“[A]symmetric treatment of monopoly and monopsony has no basis in economic analysis”).

Tracking the economic similarity between monopoly and monopsony, predatory-pricing plaintiffs and predatory-bidding plaintiffs make strikingly similar allegations. A predatory-pricing plaintiff alleges that a predator cut prices to drive the plaintiff out of business and, thereby, to reap monopoly profits from the output market. In parallel fashion, a predatory-bidding plaintiff alleges that a predator raised prices for a key input to drive the plaintiff out of business and, thereby, to reap monopsony profits in the input market. Both claims involve the deliberate use of unilateral pricing measures for anticompetitive purposes. And both claims logically require firms to incur short-term losses on the chance that they might reap supracompetitive profits in the future.

B

More importantly, predatory bidding mirrors predatory pricing in respects that we deemed significant to our analysis in Brooke Group. In Brooke Group, we noted that “ ‘predatory pricing schemes are rarely tried, and even more rarely successful.’ ” 509 U. S., at 226 (quoting Matsushita, 475 U. S., at 589). Predatory pricing requires a firm to suffer certain losses in the short term on the chance of reaping supracompetitive profits in the future. Id., at 588-589. A rational business will rarely make this sacrifice. Ibid. The same reasoning applies to predatory bidding. A predatory-bidding scheme requires a buyer of inputs to suffer losses today on the chance that it will reap supracompetitive profits in the future. For this reason, “[s]uccessful monopsony predation is probably as unlikely as successful monopoly predation.” R. Blair & J. Harrison, Monopsony 66 (1993).

And like the predatory conduct alleged in Brooke Group, actions taken in a predatory-bidding scheme are often “ ‘ “the very essence of competition.’”” 509 U. S., at 226 (quoting Cargill, 479 U. S., at 122, n. 17, in turn quoting Matsushita, supra, at 594). Just as sellers use output prices to compete for purchasers, buyers use bid prices to compete for scarce inputs. There are myriad legitimate reasons — ranging from benign to affirmatively proeompetitive — why a buyer might bid up input prices. A firm might bid up inputs as a result of miscalculation of its input needs or as a response to increased consumer demand for its outputs. A more efficient firm might bid up input prices to acquire more inputs as a part of a proeompetitive strategy to gain market share in the output market. A firm that has adopted an input-intensive production process might bid up inputs to acquire the inputs necessary for its process. Or a firm might bid up input prices to acquire excess inputs as a hedge against the risk of future rises in input costs or future input shortages. See Salop 682-683; Kirkwood 655. There is nothing illicit about these bidding decisions. Indeed, this sort of high bidding is essential to competition and innovation on the buy side of the market.

Brooke Group also noted that a failed predatory-pricing scheme may benefit consumers. 509 U. S., at 224. The potential benefit results from the difficulty an aspiring predator faces in recouping losses suffered from below-cost pricing. Without successful recoupment, “predatory pricing produces lower aggregate prices in the market, and consumer welfare is enhanced.” Ibid. Failed predatory-bidding schemes can also, but will not necessarily, benefit consumers. See Salop 677-678. In the first stage of a predatory-bidding scheme, the predator’s high bidding will likely lead to its acquisition of more inputs. Usually, the acquisition of more inputs leads to the manufacture of more outputs. And increases in output generally result in lower prices to consumers. Id., at 677; Blair & Harrison, supra, at 66-67. Thus, a failed predatory-bidding scheme can be a “boon to consumers” in the same way that we considered a predatory-pricing scheme to be. See Brooke Group, supra, at 224.

In addition, predatory bidding presents less of a direct threat of consumer harm than predatory pricing. A predatory-pricing scheme ultimately achieves success by charging higher prices to consumers. By contrast, a predatory-bidding scheme could succeed with little or no effect on consumer prices because a predatory bidder does not necessarily rely on raising prices in the output market to recoup its losses. Salop 676. Even if output prices remain constant, a predatory bidder can use its power as the predominant buyer of inputs to force down input prices and capture monopsony profits. Ibid.

C

The general theoretical similarities of monopoly and monopsony combined with the theoretical and practical similarities of predatory pricing and predatory bidding convince us that our two-pronged Brooke Group test should apply to predatory-bidding claims.

The first prong of Brooke Group’s test requires little adaptation for the predatory-bidding context. A plaintiff must prove that the alleged predatory bidding led to below-cost pricing of the predator’s outputs. That is, the predator’s bidding on the buy side must have caused the cost of the relevant output to rise above the revenues generated in the sale of those outputs. As with predatory pricing, the exclusionary effect of higher bidding that does not result in below-cost output pricing “is beyond the practical ability of a judicial tribunal to control without courting intolerable risks of chilling legitimate” procompetitive conduct. 509 U. S., at 223. Given the multitude of procompetitive ends served by higher bidding for inputs, the risk of chilling pro-competitive behavior with too lax a liability standard is as serious here as it was in Brooke Group. Consequently, only higher bidding that leads to below-cost pricing in the relevant output market will suffice as a basis for liability for predatory bidding.

A predatory-bidding plaintiff also must prove that the defendant has a dangerous probability of recouping the losses incurred in bidding up input prices through the exercise of monopsony power. Absent proof of likely recoupment, a strategy of predatory bidding makes no economic sense because it would involve short-term losses with no likelihood of offsetting long-term gains. Cf. id., at 224 (citing Matsushita, supra, at 588-589). As with predatory pricing, making a showing on the recoupment prong will require “a close analysis of both the scheme alleged by the plaintiff and the structure and conditions of the relevant market.” Brooke Group, supra, at 226.

Ross-Simmons has conceded that it has not satisfied the Brooke Group standard. Brief for Respondent 49; Tr. of Oral Arg. 49. Therefore, its predatory-bidding theory of liability cannot support the jury's verdict.

V

For these reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

        Brooke Group dealt with a claim under the Robinson-Patman Act, but as we observed, “primary-line competitive injury under the RobinsonPatman Act is of the same general character as the injury inflicted by predatory pricing schemes actionable under § 2 of the Sherman Act.” 509 U. S., at 221. Because of this similarity, the standard adopted in Brooke Group applies to predatory-pricing claims under §2 of the Sherman Act. Id., at 222.

         If the predatory firm’s competitors in the input market and the output market are the same, then predatory bidding can also lead to the bidder’s acquisition of monopoly power in the output market. In that case, which does not appear to be present here, the monopsonist could, under certain market conditions, also recoup its losses by raising output prices to monopolistic levels. See Salop 679-682 (describing a monopsonist’s predatory strategy that depends upon raising prices in the output market).

       Predatory bidding on inputs is not analytically different from predatory overbuying of inputs. Both practices fall under the rubric of monopsony predation and involve an input purchaser’s use of input prices in an attempt to exclude rival input purchasers. The economic effect of the practices is identical: Input prices rise. In a predatory-bidding scheme, the purchaser causes prices to rise by offering to pay more for inputs. In a predatory-overbuying scheme, the purchaser causes prices to rise by demanding more of the input. Either way, input prices increase. Our use of the term “predatory bidding” is not meant to suggest that different legal treatment is appropriate for the economically identical practice of “predatory overbuying.”

       Higher prices for inputs obviously benefit existing sellers of inputs and encourage new firms to enter the market for input sales as well.

       Consumer benefit does not necessarily result at the first stage because the predator might not use its excess inputs to manufacture additional outputs. It might instead destroy the excess inputs. See Salop 677, n. 22. Also, if the same firms compete in the input and output markets, any increase in outputs by the predator could be offset by decreases in outputs from the predator’s struggling competitors.


author: Justice Thomas Justice Ginsburg,

text:
    LAWRENCE v. FLORIDA
    No. 05-8820.
    Argued October 31, 2006
    Decided February 20, 2007

      Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined, post, p. 337.

      Mary Catherine Bonner, by appointment of the Court, 547 U. S. 1146, argued the cause for petitioner. With her on the briefs were Wanda Raiford, Jeffrey T Green, William M. Norris, and Diane E. Courselle.

      Christopher M. Rise argued the cause for respondent. With him on the brief were Charles J. Crist, Jr., Attorney General of Florida, and James A. McKee, Deputy Solicitor General.

       Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by John Holdridge, Steven R. Shapiro, and Larry W. Yackle; and for the National Association of Criminal Defense Lawyers by Matthew M. Shors and Pamela Harris.

      A brief of amici curiae urging affirmance was filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C. Newsom, Solicitor General, and James R. Houts, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Mike Beebe of Arkansas, Bill Lockyer of California, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, George J. Chanos of Nevada, Kelly A Ayotte of New Hampshire, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Rob McKenna of Washington, and Darrell V. McGraw, Jr., of West Virginia.

   Justice Thomas

delivered the opinion of the Court.

Congress established a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment, 28 U. S. C. § 2244(d), and further provided that the limitations period is tolled while an “application for State post-conviction or other collateral review” “is pending,” § 2244(d)(2). We must decide whether a state application is still “pending” when the state courts have entered a final judgment on the matter but a petition for certiorari has been filed in this Court. We hold that it is not.

I

Petitioner Gary Lawrence and his wife used a pipe and baseball bat to kill Michael Finken. A Florida jury eonvicted Lawrence of first-degree murder, conspiracy to commit murder, auto theft, and petty theft. The trial court sentenced Lawrence to death. The Florida Supreme Court affirmed Lawrence’s conviction and sentence on appeal, and this Court denied certiorari on January 20, 1998. 522 U. S. 1080.

On January 19,1999,364 days later, Lawrence filed an application for state postconviction relief in a Florida trial court. The court denied relief, and the Florida Supreme Court affirmed, issuing its mandate on November 18, 2002. See Lawrence v. State, 831 So. 2d 121 (per curiam). Lawrence sought review of the denial of state postconviction relief in this Court. We denied certiorari on March 24, 2003. 538 U. S. 926.

While Lawrence’s petition for certiorari was pending, he filed the present federal habeas application. The Federal District Court dismissed it as untimely under §2244(d)’s 1-year limitations period. All but one day of the limitations period had lapsed during the 364 days between the time Lawrence’s conviction became final and when he filed for state postconviction relief. The limitations period was then tolled while the Florida courts entertained his state application. After the Florida Supreme Court issued its mandate, Lawrence waited another 113 days — well beyond the 1 day that remained in the limitations period — to file his federal habeas application. As a consequence, his federal application could be considered timely only if the limitations period continued to be tolled during this Court’s consideration of his petition for certiorari. Then-applicable Eleventh Circuit precedent foreclosed any argument that §2244’s statute of limitations was tolled by the pendency of a petition for certiorari seeking review of a state postconvietion proceeding. See Coates v. Byrd, 211 F. 3d 1225,1227 (2000) (per curiam). Accordingly, the District Court concluded that Lawrence had only one day to file a federal habeas application after the Florida Supreme Court issued its mandate. The Eleventh Circuit affirmed. 421 F. 3d 1221 (2005). We granted certiorari, 547 U. S. 1039 (2006), and now affirm.

II

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, sets a 1-year statute of limitations for seeking federal habeas corpus relief from a state-court judgment. 28 U. S. C. § 2244(d)(1). This limitations period is tolled while a state prisoner seeks postconvietion relief in state court:

“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” § 2244(d)(2).

Based on this provision, the parties agree that AEDPA’s limitations period was tolled from the filing of Lawrence’s petition for state postconvietion relief until the Florida Supreme Court issued its mandate affirming the denial of that petition. At issue here is whether the limitations period was also tolled during the pendency of Lawrence’s petition for certiorari to this Court seeking review of the denial of state postconvietion relief. If it was tolled, Lawrence’s federal habeas application was timely. So we must decide whether, according to § 2244(d)(2), an “application for State post-conviction or other collateral review” “is pending” while this Court considers a certiorari petition.

Read naturally, the text of the statute must mean that the statute of limitations is tolled only while state courts review the application. As we stated in Carey v. Saffold, 536 U. S. 214, 220 (2002) (internal quotation marks omitted), a state postconviction application “remains pending” “until the application has achieved final resolution through the State’s postconviction procedures.” This Court is not a part of a “State’s post-conviction procedures.” State review ends when the state courts have finally resolved an application for state postconviction relief. After the State’s highest court has issued its mandate or denied review, no other state avenues for relief remain open. And an application for state postconviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court. The application for state postconviction review is therefore not “pending” after the state court’s postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari.

If an application for state postconviction review were “pending” during the pendency of a certiorari petition in this Court, it is difficult to understand how a state prisoner could exhaust state postconviction remedies without filing a petition for certiorari. Indeed, AEDPA’s exhaustion provision and tolling provision work together:

“The tolling provision of § 2244(d)(2) balances the interests served by the exhaustion requirement and the limitation period. .. .
Section 2244(d)(l)’s limitation period and § 2244(d)(2)’s tolling provision, together with § 2254(b)’s exhaustion requirement, encourage litigants first to exhaust all state remedies and then to file their federal habeas petitions as soon as possible” Duncan v. Walker, 533 U. S. 167,179, 181 (2001) (final emphasis added).

Yet we have said that state prisoners need not petition for certiorari to exhaust state remedies. Fay v. Noia, 372 U. S. 391, 435-438 (1963); County Court of Ulster Cty. v. Allen, 442 U. S. 140, 149-150, n. 7 (1979). State remedies are exhausted at the end of state-court review. Fay, supra, at 435-438; Allen, supra, at 149-150, n. 7.

Lawrence argues that § 2244(d)(2) should be construed to have the same meaning as § 2244(d)(1)(A), the trigger provision that determines when AEDPA’s statute of limitations begins to run. But § 2244(d)(1)(A) uses much different language from § 2244(d)(2), referring to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A) (emphasis added). When interpreting similar language in § 2255, we explained that “direct review” has long included review by this Court. Clay v. United States, 537 U. S. 522, 527-528 (2003). Indeed, we noted that “[t]he Courts of Appeals have uniformly interpreted ‘direct review’ in § 2244(d)(1)(A) to encompass review of a state conviction by this Court.” Id., at 528, n. 3 (collecting cases). By contrast, § 2244(d)(2) refers exclusively to “State post-conviction or other collateral review,” language not easily interpreted to include participation by a federal court.

Furthermore, § 2244(d)(1)(A) refers to the “time for seeking” direct review, which includes review by this Court under Clay. By parity of reasoning, the “time for seeking” review of a state postconviction judgment arguably would include the period for filing a certiorari petition before this Court. However, § 2244(d)(2) makes no reference to the “time for seeking” review of a state posteonviction court’s judgment. Instead, it seeks to know when an application for “State . . . review” is pending. The linguistic difference is not insignificant: When the state courts have issued a final judgment on a state application, it is no longer pending even if a prisoner has additional time for seeking review of that judgment through a petition for certiorari.

A more analogous statutory provision is § 2263(b)(2), which is part of AEDPA’s “opt-in” provisions for States that comply with specific requirements relating to the provision of post-conviction counsel. Under §2263, the limitations period is tolled “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” §2263(b)(2). Lawrence concedes that under this language there would be no tolling for certiorari petitions seeking review of state postconviction applications. And although he correctly notes that the language in § 2263 differs from the language of § 2244(d)(2), it is clear that the language used in both sections provides that tolling hinges on the pendency of state review. See § 2263(b)(2) (“until the final State court disposition of such petition”); § 2244(d)(2) (“a properly filed application for State post-conviction or other collateral review ... is pending”). Given Congress’ clear intent in § 2263 to provide tolling for certiorari petitions on direct review but not for certiorari petitions following state postconviction review, it is not surprising that Congress would make the same distinction in § 2244.

Lawrence also argues that our interpretation would result in awkward situations in which state prisoners have to file federal habeas applications while they have certiorari petitions from state postconviction proceedings pending before this Court. But these situations will also arise under the express terms of § 2263, and Lawrence admits that Congress intended that provision to preclude tolling for certiorari petitions. Brief for Petitioner 22. Because Congress was not concerned by this potential for awkwardness in § 2263, there is no reason for us to construe the statute to avoid it in § 2244(d)(2).

Contrary to Lawrence’s suggestion, our interpretation of § 2244(d)(2) results in few practical problems. As Justice Stevens has noted, “this Court rarely grants review at this stage of the litigation even when the application for state collateral relief is supported by arguably meritorious federal constitutional claims,” choosing instead to wait for “federal habeas proceedings.” Kyles v. Whitley, 498 U. S. 931, 932 (1990) (opinion concurring in denial of stay of execution). Thus, the likelihood that the District Court will duplicate work or analysis that might be done by this Court if we granted certiorari to review the state postconviction proceeding is quite small. And in any event, a district court concerned about duplicative work can stay the habeas application until this Court resolves the case or, more likely, denies the petition for certiorari.

Lawrence argues that even greater anomalies result from our interpretation when the state court grants relief to a prisoner and the state petitions for certiorari. In that hypothetical, Lawrence maintains that the prisoner would arguably lack standing to file a federal habeas application immediately after the state court’s judgment (because the state court granted him relief) but would later be time barred from filing a federal habeas application if we granted certiorari and the State prevailed. Again, this particular procedural posture is extremely rare. Even so, equitable tolling may be available, in light of the arguably extraordinary circumstances and the prisoner’s diligence. See Pace v. DiGuglielmo, 544 U. S. 408, 418, and n. 8 (2Q05). We cannot base our interpretation of the statute on an exceedingly rare inequity that Congress almost certainly was not contemplating and that may well be cured by equitable tolling.

In contrast to the hypothetical problems identified by Lawrence, allowing the statute of limitations to be tolled by certiorari petitions would provide incentives for state prisoners to file certiorari petitions as a delay tactic. By filing a petition for certiorari, the prisoner would push back § 2244’s deadline while we resolved the petition for certiorari. This tolling rule would provide an incentive for prisoners to file certiorari petitions — regardless of the merit of the claims asserted — so that they receive additional time to file their habeas applications.

III

Lawrence also argues that equitable tolling applies to his otherwise untimely claims. We have not decided whether § 2244(d) allows for equitable tolling. See ibid. Because the parties agree that equitable tolling is available, we assume without deciding that it is. To be entitled to equitable tolling, Lawrence must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Id., at 418.

Lawrence makes several arguments in support of his contention that equitable tolling applies to his case. First, he argues that legal confusion about whether AEDPA’s limitations period is tolled by certiorari petitions justifies equitable tolling. But at the time the limitations period expired in Lawrence’s case, the Eleventh Circuit and every other Circuit to address the issue agreed that the limitations period was not tolled by certiorari petitions. See, e. g., Coates, 211 F. 3d, at 1227. The settled state of the law at the relevant time belies any claim to legal confusion.

Second, Lawrence argues that his counsel’s mistake in miscalculating the limitations period entitles him to equitable tolling. If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel. E.g., Coleman v. Thompson, 501 U. S. 722, 756-757 (1991).

Third, Lawrence argues that his case presents special circumstances because the state courts appointed and supervised his counsel. But a State’s effort to assist prisoners in postconviction proceedings does not make the State accountable for a prisoner’s delay. Lawrence has not alleged that the State prevented him from hiring his own attorney or from representing himself. It would be perverse indeed if providing prisoners with posteonviction counsel deprived States of the benefit of the AEDPA statute of limitations. See, e. g., Duncan, 533 U. S., at 179 (“The 1-year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments”).

Fourth, Lawrence argues that his mental incapacity justifies his reliance upon counsel and entitles him to equitable tolling. Even assuming this argument could be legally credited, Lawrence has made no factual showing of mental incapacity. In sum, Lawrence has fallen far short of showing “extraordinary circumstances” necessary to support equitable tolling.

IV

The Court of Appeals correctly determined that the filing of a petition for certiorari before this Court does not toll the statute of limitations under § 2244(d)(2). It also correctly declined to equitably toll the limitations period in the factual circumstances of Lawrence’s case. For these reasons, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Ginsburg,

with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

The Court today concludes that an application for state postconviction review “no longer exists” — and therefore is not “pending” — once it has been decided by a State’s highest court. Ante, at 332. What remains, the majority reasons, is a “separate” certiorari proceeding pending before this Court. Ibid. But petitions for certiorari do not exist in a vacuum; they arise from actions instituted in lower courts. When we are asked to review a state court’s denial of habeas relief, we consider an application for that relief — not an application for federal habeas relief. Until we have disposed of the petition for certiorari, the application remains live as one for state postconviction relief; it is not transformed into a federal application simply because the state-court applicant petitions for this Court’s review.

I would therefore hold that 28 U. S. C. §2244(d)’s statute of limitations is tolled during the pendency of a petition for certiorari. Congress instructed that the one-year limitation period for filing a habeas petition in the appropriate federal district court does not include “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending.” § 2244(d)(2). That provision can and should be read to continue statutory tolling until this Court has either decided or denied a petition for certiorari addressed to the state court’s disposition of an application for postconviction relief. See Carey v. Saffold, 536 U. S. 214, 219-220 (2002) (“pending” means “in continuanee” or “not yet decided” (internal quotation marks omitted)). The majority’s contrary reading of § 2244(d)(2) cuts short the tolling period before this Court has had an opportunity to consider an application for state postconviction relief. That reading, I conclude, is neither a necessary nor a proper interpretation of the statute.

I

Two other provisions in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1217,1223 — : §§ 2244(d)(1) and 2263(b)(2) — bear on the proper interpretation of § 2244(d)(2). The first of these, § 2244(d)(1)(A), tells us when AEDPA’s statute of limitations begins to run; it states that the trigger is “the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review.” Congress thus explicitly ordered that the clock starts, following a state conviction, when the time to file a petition for certiorari expires or, if a petition is filed, when it is decided or denied. See Clay v. United States, 537 U. S. 522, 527-529, and n. 3 (2003).

According to the majority, § 2244(d)(2) cannot be interpreted similarly to encompass this Court’s review because the text of that provision “refers exclusively to ‘State post-conviction or other collateral review.’” Ante, at 333 (emphasis in original). In fact, § 2244(d)(2) refers to an “application for State post-conviction or other collateral review.” (Emphasis added.) And it tolls the limitation period while the application is “pending,” not while it is “pending in State court.” See §2244(d)(2). Just as a judgment of conviction is not “final” until we have declined review or decided the case on the merits, see Clay, 537 U. S., at 527-530 (interpreting § 2255), so an application for state habeas relief is sensibly understood to remain “pending” until we have disposed of the case. It is a fundamental characteristic of our federal system that this Court has appellate jurisdiction over state-court decisions implicating federal law or the Constitution. Until we have exercised that jurisdiction or declined to do so the case is not finally decided. See supra, at 338, and n. I.

In support of its opposing view, the majority emphasizes that § 2244(d)(2) does not include the words “time for seeking . . . review,” words included in § 2244(d)(1)(A). This difference in phrasing, the majority reasons, indicates that Congress intended to cut off tolling as soon as the highest state court renders its judgment, well before a petition for review is filed in this Court. But the wording of § 2244(d)(2), I am persuaded, is more appropriately contrasted with § 2263(b)(2), which prescribes a parallel tolling rule for “opt-in” capital cases. Section 2263(b)(2), unlike the provision at issue here, leaves no doubt that Congress intended to exclude from the tolling period the time for filing a petition for certiorari. It provides that the statute of limitations tolls “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition.” (Emphasis added.) Section 2263(b)(2) thus demonstrates that when Congress wanted to cut off tolling immediately upon the final state-court decision — i. e., to exclude this Court’s review from the tolling period — it simply said so.

One can understand why Congress might have chosen an uncommon rule for the special capital cases covered by §§2261-2263, a separate chapter of the statute. By terminating tolling upon final state-court disposition, rather than extending the period during the pendency of a certiorari petition, Congress eliminated one source of delay in implementing the death penalty. But Congress provided that the shortened tolling period would apply only to petitions brought by prisoners in States that have established a mechanism for providing counsel in postconviction proceedings. See § 2261. An attorney, of course, is better equipped than a pro se petitioner to clear procedural hurdles, including shortened timelines. Given the exceptional character of the opt-in category, § 2244(d)(2) is more appropriately aligned with § 2244(d)(1)(A), the provision immediately preceding it, than with § 2263(b)(2).

The majority maintains that if an application for state postconviction review were considered to be “pending” while a certiorari petition remained before this Court, then a state prisoner could not exhaust state postconviction remedies without filing a petition for certiorari. Ante, at 332-333. But exhaustion and tolling serve discrete functions and need not be synchronized. The former is a prerequisite to filing for habeas relief in federal court. Exhaustion promotes principles of comity and federalism by giving state courts the first opportunity to adjudicate claims of state prisoners; that doctrine, however, does not necessitate this Court’s review of the state court’s determination. See O’Sullivan v. Boerckel, 526 U. S. 838, 844 (1999) (“Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”). Tolling, in contrast, concerns the time within which a procedural move must be made, not the issues that must be raised before a particular tribunal. And while one purpose of tolling is to allow adequate time for exhaustion, that is not the sole objective. Tolling in the context here involved also protects a litigant’s ability to pursue his or her federal claims in a federal forum and avoids simultaneous litigation in more than one court— objectives undercut by today’s decision. See infra this page and 343-345.

Duncan v. Walker, 533 U. S. 167 (2001), does not suggest a different result. Cf. ante, at 332-333. In Duncan, we held that a federal habeas petition does not toll §2244(d)(l)’s limitation period because “an application for federal habeas corpus review is not an application for State post-conviction or other collateral review within the meaning of 28 U. S. C. § 2244(d)(2).” 533 U. S., at 181 (internal quotation marks omitted). But, unlike a federal habeas petition, an application for state habeas review undoubtedly is “an application for State post-conviction review.” This is so whether the application is under review in a state appellate court or is the subject of a petition seeking certiorari from this Court.

II

Not only is the majority’s reading of § 2244(d)(2) unwarranted, it will also spark the simultaneous filing of two pleadings seeking essentially the same relief. A petitioner denied relief by a State’s highest court will now have to file, contemporaneously, a petition for certiorari in this Court and a habeas petition in federal district court. Only by expeditiously filing for federal habeas relief will a prisoner ensure that the limitation period does not run before we have disposed of his or her petition for certiorari. Protective petitions will be essential, too, when we grant review of a state court’s ruling on a state habeas petition, for many months can elapse between the date we agree to hear a case and the date we issue an opinion. Consequently, the same claims will be pending in two courts at once, and the duplication will occasion administrative problems; for example, no decision, law, or rule tells us in which court the record in the case should be lodged. See this Court’s Rule 12, ¶ 7 (“The clerk of the court having possession of the record shall keep it until notified by the Clerk of this Court to certify and transmit it.”). There is no indication that Congress intended to burden the court system or litigants with such premature filings.

The anticipatory filing in a federal district court will be all the more anomalous when a habeas petitioner prevails in state court and the State petitions for certiorari. Under the majority’s decision, it appears, the petitioner will be obliged to file a protective petition in federal court even though he gained relief from the state tribunal. Lawrence questions whether the federal courts would even have jurisdiction over such a bizarre petition. See ante, at 335. While I incline to the view that a prisoner in such a position would have standing, Lawrence’s concerns are at least plausible and raise the specter of a habeas petitioner prevailing in state court, yet losing the right to pursue constitutional claims in federal court altogether: By the time we have ruled on the State’s petition, the statute of limitations likely would have run.

Though recognizing this problem, the majority suggests that equitable tolling may provide a solution. But in the next breath, the majority hastens to clarify that the Court does not hold that equitable tolling is available under AEDPA. Ante, at 335, and n. 3.

By contrast, no similar problems, practical or jurisdictional, would result from a determination that an application for state postconviction review remains “pending” while a petition for certiorari from the state court’s decision is before this Court. Nor would such a determination create an untoward opportunity for abuse of the writ. The majority’s suggestion that prisoners would have an incentive to petition for certiorari as a delay tactic has no basis in reality in the mine run of cases. Most prisoners want to be released from custody as soon as possible, not to prolong their incarceration. They are therefore interested in the expeditious resolution of their claims.

As earlier indicated, see swpra, at 342-343 and this page, under the majority’s rule, a petitioner could achieve the equivalent of tolling by filing a protective petition in federal court and seeking a stay while a certiorari petition is pending. See ante, at 335; cf. Rhines v. Weber, 544 U. S. 269, 278-279 (2005) (a prisoner seeking state postconviction relief may file a protective petition in federal court and ask the court to stay and abey the federal proceedings until state remedies are exhausted). In that event, today’s decision does nothing to promote the finality of state-court determinations or the expeditious resolution of claims. Rather, it imposes an unnecessary administrative burden on federal district judges who must determine whether to grant a requested stay, and it sets a trap for those pro se litigants unaware of the need to file duplicative petitions.

In sum, the majority’s reading is neither compelled by the text of § 2244(d)(2) nor practically sound. By cutting off tolling before this Court has had an opportunity to consider a pending petition for certiorari, the Court’s holding will unnecessarily encumber the federal courts with anticipatory filings and deprive unwitting litigants of the opportunity to pursue their constitutional claims — all without furthering the purposes of AEDPA.

* * *

For the reasons stated, I would hold that petitioner Lawrence qualifies for statutory tolling under § 2244(d)(2), and would therefore reverse the Eleventh Circuit’s judgment.

       Lawrence contends that delays in Florida’s program for appointing postconviction counsel and other issues outside of his control caused 298 days to pass before Florida appointed an attorney who took an active role in his postconviction case. These facts have little relevance to our analysis. Lawrence did not seek certiorari on the question whether these facts entitle him to equitable tolling. Indeed, Lawrence was able to file his state postconviction petition on time in spite of these delays. And before this Court, he argues that his attorney mistakenly missed the federal habeas deadline, not that he lacked adequate time to file a federal habeas application.

       We have previously held that the word “State” modifies both the terms “post-conviction” and “other collateral review.” Duncan v. Walker, 533 U. S. 167,172-174 (2001). The question, therefore, is whether “an application for State post-conviction or other [State] collateral review... is pending.” § 2244(d)(2) (emphasis added).

       As discussed below, we assume, as the parties do, the availability of equitable tolling under § 2244.

       It is unclear just what the majority thinks we are considering when we address a state habeas petition on certiorari. We are certainly not deciding a petition for federal habeas relief. See 28 U. S. C. §2254 (authorizing applications by persons in state custody for federal habeas review). And though we can entertain original habeas petitions, see Felker v. Turpin, 518 U. S. 651, 660 (1996), a petition for certiorari from a state-court judgment does not fall within that category.

       I would not reach in this proceeding cases in which a petitioner does not seek certiorari review of the state court’s judgment — i. e., cases presenting the question whether tolling ends with the decision of the State’s highest court or with the expiration of the time to file a petition for certiorari. That question is not presented here, for Lawrence timely sought this Court’s review of the denial of state postconvietion relief.

       The majority inappropriately relies on Carey v. Saffold, 536 U. S. 214, 220 (2002), for the proposition that a state posteonviction application remains pending only until the State’s posteonviction procedures are complete. Ante, at 332. Though Carey affirmed that tolling continues throughout the State’s own posteonviction procedures, it did not hold that (or even consider whether) the time for seeking certiorari from this Court was excluded from the tolling period.

       Notably, in Clay v. United States, 537 U. S. 522, 527-530 (2003), we rejected the contention that the absence of the phrase “time for seeking ... review” from another provision changed the meaning of “final.” Section 2255, ¶ 6(1), refers simply to “the date on which the judgment of conviction becomes final” and not to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Nevertheless, we held that a judgment of conviction becomes final when the time expires for filing a petition for certiorari. Id., at 525, 528.

       Matching §2263(b)(2)’s abbreviated tolling period, § 2263(a) provides for a shorter statute of limitations. Compare § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus ....”) with § 2263(a) (establishing a 180-day period of limitation).

       See, e.g., Sanchez-Llamas v. Oregon, 548 U. S. 331 (2006) (certiorari petition filed on June 7,2005, and decided 386 days later on June 28, 2006); Deck v. Missouri, 544 U. S. 622 (2005) (certiorari petition filed on July 15, 2004, and decided 312 days later on May 23,2005).

       The majority regards the practical problems as inconsequential for we rarely grant certiorari in state habeas proceedings. Ante, at 335. For this proposition, the Court cites a pre-AEDPA case in which Justice Stevens noted that federal habeas proceedings were generally the more appropriate avenue for our consideration of federal constitutional claims. See Kyles v. Whitley, 498 U. S. 931,932 (1990) (opinion concurring in denial of stay of execution). Since AEDPA, however, our consideration of state habeas petitions has become more pressing. Under AEDPA’s standard of review, a petitioner who has suffered a violation of a constitutional right will nonetheless fail on federal habeas unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by [this] Court,” 12254(d)(1), or “was based on an unreasonable determination of the facts,” 12254(d)(2). Even if rare, the importance of our review of state habeas proceedings is evident. See, e. g., Deck, 544 U. S., at 624 (granting review of state habeas petition and holding that the Constitution forbids the use of visible shackles during guilt and penalty phase unless justified by an essential state interest); Roper v. Simmons, 543 U. S. 551, 578 (2005) (granting review of state habeas petition and holding that execution of individuals under age of 18 is prohibited by the Eighth and Fourteenth Amendments).

       Satisfied that statutory tolling covers this case, I do not address petitioner’s alternative argument for equitable tolling.

       Though capital petitioners may be aided by delay, they are a small minority of all petitioners. In this case, moreover, there is no indication that Lawrence was intentionally dilatory. See ante, at 330, n. 1.


author: Justice Breyer Justice Stevens, Justice Thomas, Justice Ginsburg,

text:
    PHILIP MORRIS USA v. WILLIAMS, personal representative of ESTATE OF WILLIAMS, DECEASED
    No. 05-1256.
    Argued October 31, 2006
    Decided February 20, 2007

      Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., post, p. 358, and Thomas, J., post, p. 361, filed dissenting opinions. Ginsburg, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined, post, p. 362.

      Andrew L. Frey argued the cause for petitioner. With him on the briefs were Andrew H. Schapiro, Lauren R. Goldman, Murray R. Garnick, Kenneth S. Getter, Evan M. Tager, William F. Gary, and Sharon A. Rudnick.

      Robert S. Peck argued the cause for respondent. With him on the brief were Ned Miltenberg, Charles S. Tauman, James ,S'. Coon, Raymond F. Thomas, William A. Gaylord, Maureen Leonard, and Kathryn H. Clarke

      Briefs of amici curiae urging reversal were filed for the Alliance of Automobile Manufacturers by H. Christopher Bartolomucci and John T. Whatley; for the American Tort Reform Association by Roy T. Englert, Jr., and Alan E. Untereiner; for the Chamber of Commerce of the United States of America by Jonathan D. Hacker, Robin S. Conrad, and Amar D. Sarwal; for the National Association of Manufacturers et al. by Gene C. Schaerr, Steffen N. Johnson, Linda T. Coberly, Jan S. Amundson, Quentin Riegel, and Donald D. Evans; for the National Association of Mutual Insurance Cos. et al. by Sheila L. Birnbaum, Barbara Wrubel, Douglas W Dunham, Ellen P. Quackenbos, J. Stephen Zielezienski, David F. Snyder, and Allan J. Stein; for the Pacific Legal Foundation by Deborah J. La Fetra and Timothy Sandefur; for the Product Liability Advisory Council by Theodore B. Olson, Thomas H. Dupree, Jr., and Theodore J. Boutrous, Jr.; for R. J. Reynolds Tobacco Co. et al. by Meir Feder, Charles R. A Morse, James T. Newsom, Donald B. Ayer, and Robert H. Klonoff; for the Washington Legal Foundation et al. by Arvin Maskin, Daniel J. Popeo, and Paul D. Kamenar; and for Steven L. Chanenson et al. by Robert D. Fox and John F. Gullace.

      Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Hardy Myers, Attorney General of Oregon, Peter Shepherd, Deputy Attorney General, Mary H. Williams, Solicitor General, and Janet A Metcalf and Kaye E. McDonald, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Patricia A Madrid of New Mexico, W. A. Drew Edmondson of Oklahoma, Mark L. Shurtleff of Utah, and Peg Lautenschlager of Wisconsin; for AARP et al. by Elizabeth J. Cabraser and Deborah Zuckerman; for the Association of Trial Lawyers of America by Gerson H. Smoger and Brent M. Rosenthal; for the Campaign for Tobacco-Free Kids et al. by William B. Schultz; for the Center for a Just Society by Brian G. Brooks; for Trial Lawyers for Public Justice by Michael V. Ciresi, Roberta B. Walburn, Arthur H. Bryant, and Leslie A. Brueckner; for Henry H. Drummonds et al. by Steven C. Berman; for Keith N. Hylton et al. by Ronald Simon, Ed Bell, Patrick Carr, Richard L. Denney, Charles Siegel, and Gerry L. Spence; and for Neil Vidmar et al. by Frederick M. Baron.

      Briefs of amici curiae were filed for the Oregon Forest Industries Council et al. by Thomas W. Brown; for the Tobacco Control Legal Consortium et al. by Edward L. Sweda, Jr.; for Akhil Reed Amar et al. by Kenneth Chesebro, Michael J. Piuze, and Arthur McEvoy; and for A. Mitchell Polinsky et al. by Timothy Lynch.

   Justice Breyer

delivered the opinion of the Court.

The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitution’s Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e. g., victims whom the parties do not represent). We hold that such an award would amount to a taking of “property” from the defendant without due process.

I

This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent, Williams’ widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams’ death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so. The jury ultimately found that Philip Morris was negligent (as was Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue here, it awarded compensatory damages of about $821,000 (about $21,000 economic and $800,000 noneconomic) along with $79.5 million in punitive damages.

The trial judge subsequently found the $79.5 million punitive damages award “excessive,” see, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris’ arguments and restored the $79.5 million jury award. Subsequently, Philip Morris sought review in the Oregon Supreme Court (which denied review) and then here. We remanded the case in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003). 540 U. S. 801 (2003). The Oregon Court of Appeals adhered to its original views. And Philip Morris sought, and this time obtained, review in the Oregon Supreme Court.

Philip Morris then made two arguments relevant here. First, it said that the trial court should have accepted, but did not accept, a proposed “punitive damages” instruction that specified the jury could not seek to punish Philip Morris for injury to other persons not before the court. In particular, Philip Morris pointed out that the plaintiff’s attorney had told the jury to “think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been. ... In Oregon, how many people do we see outside, driving home . . . smoking cigarettes? . . . [Cigarettes . . . are going to kill ten [of every hundred]. [And] the market share of Marlboros [i e., Philip Morris] is one-third [i e., one of every three killed].” App. 197a, 199a. In light of this argument, Philip Morris asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between any punitive award and “the harm caused to Jesse Williams” by Philip Morris’ misconduct, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . Id., at 280a. The judge rejected this proposal and instead told the jury that “[p]unitive damages are awarded against a defendant to punish misconduct and to deter misconduct,” and “are not intended to compensate the plaintiff or anyone else for damages caused by the defendant’s conduct.” Id., at 283a. In Philip Morris’ view, the result was a significant likelihood that a portion of the $79.5 million award represented punishment for its having harmed others, a punishment that the Due Process Clause would here forbid.

Second, Philip Morris pointed to the roughly 100-to-l ratio the $79.5 million punitive damages award bears to $821,000 in compensatory damages. Philip Morris noted that this Court in BMW emphasized the constitutional need for punitive damages awards to reflect (1) the “reprehensibility” of the defendant’s conduct, (2) a “reasonable relationship” to the harm the plaintiff (or related victim) suffered, and (3) the presence (or absence) of “sanctions,” e. g., criminal penalties, that state law provided for comparable conduct, 517 U. S., at 575-585. And in State Farm, this Court said that the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while “not binding,” is “instructive,” and that “[s]ingle-digit multipliers are more likely to comport with due process.” 538 U. S., at 425. Philip Morris claimed that, in light of this case law, the punitive award was “grossly excessive.” See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 458 (1993) (plurality opinion); BMW, supra, at 574-575; State Farm, supra, at 416-417.

The Oregon Supreme Court rejected these and other Philip Morris arguments. In particular, it rejected Philip Morris’ claim that the Constitution prohibits a state jury “from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore. 35, 51-52, 127 P. 3d 1165, 1175 (2006). And in light of Philip Morris’ reprehensible conduct, it found that the $79.5 million award was not “grossly excessive.” Id., at 63-64, 127 P. 3d, at 1181-1182.

Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded “the constitutional requirement that punitive damages be reasonably related to the plaintiff’s harm.” Pet. for Cert. (I). We granted certiorari limited to these two questions.

For reasons we shall set forth, we consider only the first of these questions. We vacate the Oregon Supreme Court’s judgment, and we remand the case for further proceedings.

II

This Court has long made clear that “[pjunitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.” BMW, supra, at 568. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time, we have emphasized the need to avoid an arbitrary determination of an award’s amount. Unless a State insists upon proper standards that will cabin the jury’s discretionary authority, its punitive damages system may deprive a defendant of “fair notice ... of the severity of the penalty that a State may impose,” BMW, supra, at 574; it may threaten “arbitrary punishments,” i. e., punishments that reflect not an “application of law” but “a decisionmaker’s caprice,” State Farm, supra, at 416, 418 (internal quotation marks omitted); and, where the amounts are sufficiently large, it may impose one State’s (or one jury’s) “policy choice,” say, as to the conditions under which (or even whether) certain products can be sold, upon “neighboring States” with different public policies, BMW, supra, at 571-572.

For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as “grossly excessive.” See Honda Motor Co. v. Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review of the size of punitive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (review must be de novo); BMW, supra, at 574-585 (excessiveness decision depends upon the reprehensibility of the defendant’s conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions “authorized or imposed in comparable cases”); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is “grossly excessive,” we need now only consider the Constitution’s procedural limitations.

III

In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i. e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant’s statements to the contrary.

For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fimdamental due process concerns to which our punitive damages cases refer — risks of arbitrariness, uncertainty, and lack of notice — will be magnified. State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574.

Finally, we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant’s conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. See State Farm, supra, at 424 (“[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award” (emphasis added)). See also TXO, 509 U. S., at 460-462 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term “error-free” (in BMW) to describe a lower court punitive damages calculation that likely included harm to others in the equation. 517 U. S., at 568, n. 11. But context makes clear that the term “error-free” in the BMW footnote referred to errors relevant to the case at hand. Although elsewhere in BMW we noted that there was no suggestion that the plaintiff “or any other BMW purchaser was threatened with any additional potential harm” by the defendant’s conduct, we did not purport to decide the question of harm to others. Id., at 582. Rather, the opinion appears to have left the question open.

Respondent argues that she is free to show harm to other vietims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible — although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.

Given the risks of unfairness that we have mentioned, it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one. And given the risks of arbitrariness, the concern for adequate notice, and the risk that punitive damages awards can, in practice, impose one State’s (or one jury’s) policies (e. g., banning cigarettes) upon other States — all of which accompany awards that, today, may be many times the size of such awards in the 18th and 19th centuries, see id., at 594-595 (Breyer, J., concurring) — it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i. e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.

IV

Respondent suggests as well that the Oregon Supreme Court, in essence, agreed with us, that it did not authorize punitive damages awards based upon punishment for harm caused to nonparties. We concede that one might read some portions of the Oregon Supreme Court’s opinion as focusing only upon reprehensibility. See, e.g., 340 Ore., at 51, 127 P. 3d, at 1175 (“[T]he jury could consider whether Williams and his misfortune were merely exemplars of the harm that Philip Morris was prepared to inflict on the smoking public at large”). But the Oregon court’s opinion elsewhere makes clear that that court held more than these few phrases might suggest.

The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the “reasonable relationship” equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that “you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is” between Philip Morris’ punishable misconduct and harm caused to Jesse Williams, “[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims . . . .” App. 280a (emphasis added). And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution “prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties.” 340 Ore., at 51-52, 127 P. 3d, at 1175.

The court rejected that claim. In doing so, it pointed out (1) that this Court in State Farm had held only that a jury could not base its award upon “dissimilar” acts of a defendant. 340 Ore., at 52-53, 127 P. 3d, at 1175-1176. It added (2) that “[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all.” Id., at 52, n. 3, 127 P. 3d, at 1175, n. 3. And it stated (3) that “[i]t is unclear to us how a jury could ‘consider’ harm to others, yet withhold that consideration from the punishment calculus.” Ibid.

The Oregon court’s first statement is correct. We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now. We do not agree with the Oregon court’s second statement. We have explained why we believe the Due Process Clause prohibits a State’s inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility. Cf., e. g., Witte v. United States, 515 U. S. 389, 400 (1995) (recidivism statutes taking into account a criminal defendant’s other misconduct do not impose an “ ‘additional penalty for the earlier crimes,’ but instead ... ‘a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one’” (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))).

The Oregon court’s third statement raises a practical problem. How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant one — because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury — a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.

V

As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris’ appeal. We remand this ease so that the Oregon Supreme Court can apply the standard we have set forth. Because the application of this standard may lead to the need for a new trial, or a change in the level of the punitive damages award, we shall not consider whether the award is constitutionally “grossly excessive.” We vacate the Oregon Supreme Court’s judgment and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Stevens,

dissenting.

The Due Process Clause of the Fourteenth Amendment imposes both substantive and procedural constraints on the power of the States to impose punitive damages on tortfeasors. See State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003); Cooper Industries, Inc. v. Leather-man Tool Group, Inc., 532 U. S. 424 (2001); BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Honda Motor Co. v. Oberg, 512 U. S. 415 (1994); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 (1993). I remain firmly convinced that the cases announcing those constraints were correctly decided. In my view the Oregon Supreme Court faithfully applied the reasoning in those opinions to the egregious facts disclosed by this record. I agree with Justice Ginsburg’s explanation of why no procedural error even arguably justifying reversal occurred at the trial in this case. See post, p. 362 (dissenting opinion).

Of greater importance to me, however, is the Court’s imposition of a novel limit on the State’s power to impose punishment in civil litigation. Unlike the Court, I see no reason why an interest in punishing a wrongdoer “for harming persons who are not before the court,” ante, at 349, should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct.

Whereas compensatory damages are measured by the harm the defendant has caused the plaintiff, punitive damages are a sanction for the public harm the defendant’s conduct has caused or threatened. There is little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages. See Cooper Industries, 532 U. S., at 432. In our early history either type of sanction might have been imposed in litigation prosecuted by a private citizen. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 127-128 (1998) (Stevens, J., concurring in judgment). And while in neither context would the sanction typically include a pecuniary award measured by the harm that the conduct had caused to any third parties, in both contexts the harm to third parties would surely be a relevant factor to consider in evaluating the reprehensibility of the defendant’s wrongdoing. We have never held otherwise.

In the case before us, evidence attesting to the possible harm the defendant’s extensive deceitful conduct caused other Oregonians was properly presented to the jury. No evidence was offered to establish an appropriate measure of damages to compensate such third parties for their injuries, and no one argued that the punitive damages award would serve any such purpose. To award compensatory damages to remedy such third-party harm might well constitute a taking of property from the defendant without due process, cf. ante, at 349. But a punitive damages award, instead of serving a compensatory purpose, serves the entirely different purposes of retribution and deterrence that underlie every criminal sanction. State Farm, 538 U. S., at 416. This justification for punitive damages has even greater salience when, as in this case, see Ore. Rev. Stat. §31.735(1) (2003), the award is payable in whole or in part to the State rather than to the private litigant.

While apparently recognizing the novelty of its holding, ante, at 356-357, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct — which is permitted — and doing so in order to punish the defendant “directly” — which is forbidden. Ante, at 355. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant — directly—for third-party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those “bystanders” as well as the harm to the individual plaintiff. The Court endorses a contrary conclusion without providing us with any reasoned justification.

It is far too late in the day to argue that the Due Process Clause merely guarantees fair procedure and imposes no substantive limits on a State’s lawmaking power. See, e. g., Moore v. East Cleveland, 431 U. S. 494, 544 (1977) (White, J., dissenting); Poe v. Ullman, 367 U. S. 497, 540-541 (1961) (Harlan, J., dissenting); Whitney v. California, 274 U. S. 357, 373 (1927) (Brandéis, J., concurring). It remains true, however, that the Court should be “reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Judicial restraint counsels us to “exercise the utmost care whenever we are asked to break new ground in this field.” Ibid. Today the majority ignores that sound advice when it announces its new rule of substantive law.

Essentially for the reasons stated in the opinion of the Supreme Court of Oregon, I would affirm its judgment.

Justice Thomas,

dissenting.

I join Justice Ginsbueg’s dissent in full. I write separately to reiterate my view that “‘the Constitution does not constrain the size of punitive damages awards.’” State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 429-430 (2003) (Thomas, J., dissenting) (quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (Thomas, J., concurring)). It matters not that the Court styles today’s holding as “procedural” because the “procedural” rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. Co. v. Has-lip, 499 U. S. 1, 26-27 (1991) (Scalia, J., concurring in judgment) (“In 1868 . . . punitive damages were undoubtedly an established part of the American common law of torts. It is ... clear that no particular procedures were deemed necessary to circumscribe a jury’s discretion regarding the award of such damages, or their amount”). Today’s opinion proves once again that this Court’s punitive damages jurisprudence is “insusceptible of principled application.” BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (Scalia, J., joined by Thomas, J., dissenting).

Justice Ginsburg,

with whom Justice Scalia and Justice Thomas join, dissenting.

The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused “strangers to the litigation,” ante, at 353, the Court states, but for the reprehensibility of defendant’s conduct, ante, at 355. “[C]onduct that risks harm to many,” the Court observes, “is likely more reprehensible than conduct that risks harm to only a few.” Ante, at 357. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 355-357. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003), and have “deprive[d] [no jury] of proper legal guidance,” ante, at 355. Vacation of the Oregon Supreme Court’s judgment, I am convinced, is unwarranted.

The right question regarding reprehensibility, the Court acknowledges, ante, at 356, would train on “the harm that Philip Morris was prepared to inflict on the smoking public at large.” Ibid, (quoting 340 Ore. 35, 51,127 P. 3d 1165,1175 (2006)). See also id., at 55, 127 P. 3d, at 1177 (“[T]he jury, in assessing the reprehensibility of Philip Morris's actions, could consider evidence of similar harm to other Oregonians caused (or threatened) by the same conduct.” (emphasis added)). The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry.

The Court’s order vacating the Oregon Supreme Court’s judgment is all the more inexplicable considering that Philip Morris did not preserve any objection to the charges in fact delivered to the jury, to the evidence introduced at trial, or to opposing counsel’s argument. The sole objection Philip Morris preserved was to the trial court’s refusal to give defendant’s requested charge number 34. See id., at 54,127 P. 3d, at 1176. The proposed instruction read in pertinent part:

“If you determine that some amount of punitive damages should be imposed on the defendant, it will then be your task to set an amount that is appropriate. This should be such amount as you believe is necessary to achieve the objectives of deterrence and punishment. While there is no set formula to be applied in reaching an appropriate amount, I will now advise you of some of the factors that you may wish to consider in this connection.
“(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant’s punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.
“(2) The size of the punishment may appropriately reflect the degree of reprehensibility of the defendant’s conduct — that is, how far the defendant has departed from accepted societal norms of conduct.” App. 280a.

Under that charge, just what use could the jury properly make of “the extent of harm suffered by others”? The answer slips from my grasp. A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge.

The Court ventures no opinion on the propriety of the charge proposed by Philip Morris, though Philip Morris preserved no other objection to the trial proceedings. Rather than addressing the one objection Philip Morris properly preserved, the Court reaches outside the bounds of the case as postured when the trial court entered its judgment. I would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent.

* * *

For the reasons stated, and in light of the abundant evidence of “the potential harm [Philip Morris’] conduct could have caused,” ante, at 354 (emphasis deleted), I would affirm the decision of the Oregon Supreme Court.

       The Court’s holding in Brouming-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257 (1989), distinguished, for the purposes of appellate review under the Excessive Fines Clause of the Eighth Amendment, between criminal sanctions and civil fines awarded entirely to the plaintiff. The fact that part of the award in this case is payable to the State lends further support to my conclusion that it should be treated as the functional equivalent of a criminal sanction. See id,., at 263-264. I continue to agree with Justice O’Connor and those scholars who have concluded that the Excessive Fines Clause is applicable to punitive damages awards regardless of who receives the ultimate payout. See id., at 286-299 (opinion concurring in part and dissenting in part).

       It is no answer to refer, as the majority does, to recidivism statutes. Ante, at 357. In that context, we have distinguished between taking prior crimes into account as an aggravating factor in penalizing the conduct before the court versus doing so to punish for the earlier crimes. Ibid. But if enhancing a penalty for a present crime because of prior conduct that has already been punished is permissible, it is certainly proper to enhance a penalty because the conduct before the court, which has never been punished, injured multiple victims.