author: Per Curiam.

text:
    LABORATORY CORPORATION OF AMERICA HOLDINGS, dba LABCORP v. METABOLITE LABORATORIES, INC., et al.
    CERTIORARI TO THE UNITED STATES COURT OP APPEALS FOR THE FEDERAL CIRCUIT
    No. 04-607.
    Argued March 21, 2006
    Decided June 22, 2006

      Jonathan S. Franklin argued the cause for petitioner. With him on the briefs were Catherine E. Stetson and Jessica L. Ellsworth.

      Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Daryl Joseffer, Anthony J. Steinmeyer, Jeffrey Clair, John M. Whealan, and Stephen Walsh.

      Miguel A. Estrada argued the cause for respondents. With him on the brief were Glenn K. Beaton, Mark A. Perry, Jeffrey A. Wadsworth, and Mark A. Lemley.

      Briefs of amici curiae urging reversal were filed for Affymetrix, Inc., et al. by Kathleen M. Sullivan and Barbara A. Caulfield; for the American Clinical Laboratory Association by Roy T. Englert, Jr.; for the American Heart Association by Gregory A. Castanias; for the American Medical Association et al. by Jack R. Bierig; for the Computer & Communications Industry Association by Jonathan Band; for the Financial Services Industry by Donald M. Falk and Jeremy Gaston; and for the People’s Medical Society by Lori B. Andrews and Francis C. J Pizzulli.

      Briefs of amici curiae urging affirmance were filed for the Franklin Pierce Law Center by Craig Steven Jepson; and for Perlegen Sciences, Inc., et al. by Gideon A. Schor and Meredith E. Kotler.

      Briefs of amici curiae were filed for the AARP by Joshua D. Sarnoff, Sarah Lock, Bruce Vignery, and Michael Schuster; for the American Express Co. by Abbe David Lowell, Joseph A. Calvaruso, Walter G. Hanchuk, Richard Martinelli, and Raymond Millien; for the American Intellectual Property Law Association by Denise M. Kettelberger and Melvin C. Garner; for the Association of the Bar of the City of New York by Peter A. Sullivan and Catriona M. Collins; for the Boston Patent Law Assoeiation by Mark B. Solomon and Doreen M. Hogle; for the Federal Circuit Bar Association by Mark P. Walters, Martha B. Schneider, Peter B. Ellis, and Claire Lwporte; for the Intellectual Property Owners Association by Paul H. Berghoff and Douglas K. Norman; for International Business Machines Corp. by Christopher A. Hughes; for Patients not Patents, Inc., by Edward J. Elder; and for the Public Patent Foundation by Justin Hughes.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

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

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

This case involves a patent that claims a process for helping to diagnose deficiencies of two vitamins, folate and cobalamin. The process consists of using any test (whether patented or unpatented) to measure the level in a body fluid of an amino acid called homocysteine and then noticing whether its level is elevated above the norm; if so, a vitamin deficiency is likely.

The lower courts held that the patent claim is valid. They also found the petitioner, Laboratory Corporation of America Holdings (LabCorp), liable for inducing infringement of the claim when it encouraged doctors to order diagnostic tests for measuring homocysteine. The courts assessed damages. And they enjoined LabCorp from using any tests that would lead the doctors it serves to find a vitamin deficiency by taking account of elevated homocysteine levels.

We granted certiorari in this case to determine whether the patent claim is invalid on the ground that it improperly seeks to “claim a monopoly over a basic scientific relationship,” Pet. for Cert, i, namely, the relationship between homocysteine and vitamin deficiency. The Court has dismissed the writ as improvidently granted. In my view, we should not dismiss the writ. The question presented is not unusually difficult. We have the authority to decide it. We said that we would do so. The parties and amici have fully briefed the question. And those who engage in medical research, who practice medicine, and who as patients depend upon proper health care might well benefit from this Court’s authoritative answer.

I

A

The relevant principle of law “[e]xelude[s] from .. . patent protection . . . laws of nature, natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U. S. 175, 185 (1981). This principle finds its roots in both English and American law. See, e. g., Neilson v. Harford, Webster’s Patent Cases 295, 371 (1841); Le Roy v. Tatham, 14 How. 156, 175 (1853); O'Reilly v. Morse, 15 How. 62 (1854); The Telephone Cases, 126 U. S. 1 (1888). The principle means that Einstein could not have “patented] his celebrated law that E=mc2; nor could Newton have patented the law of gravity.” Diamond v. Chakrabarty, 447 U. S. 303, 309 (1980). Neither can one patent “a novel and useful mathematical formula,” Parker v. Flook, 437 U. S. 584, 585 (1978), the motive power of electromagnetism or steam, Morse, supra, at 116, “the heat of the sun, electricity, or the qualities of metals,” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948).

The justification for the principle does not lie in any claim that “laws of nature” are obvious, or that their discovery is easy, or that they are not useful. To the contrary, research into such matters may be costly and time consuming; monetary incentives may matter; and the fruits of those incentives and that research may prove of great benefit to the human race. Rather, the reason for the exclusion is that sometimes too much patent protection can impede rather than “promote the Progress of Science and useful Arts,” the constitutional objective of patent and copyright protection. U. S. Const., Art. I, § 8, cl. 8.

The problem arises from the fact that patents do not only encourage research by providing monetary incentives for invention. Sometimes their presence can discourage research by impeding the free exchange of information, for example by forcing researchers to avoid the use of potentially patented ideas, by leading them to conduct costly and time-consuming searches of existing or pending patents, by requiring complex licensing arrangements, and by raising the costs of using the patented information, sometimes prohibitively so.

Patent law seeks to avoid the dangers of overprotection just as surely as it seeks to avoid the diminished incentive to invent that underprotection can threaten. One way in which patent law seeks to sail between these opposing and risky shoals is through rules that bring certain types of invention and discovery within the scope of patentability while excluding others. And scholars have noted that “patent law[’s] exclusion of] fundamental scientific (including mathematical) and technological principles” (like copyright’s exclusion of “ideas”) is a rule of the latter variety. W. Landes & R. Posner, The Economic Structure of Intellectual Property Law 305 (2003). That rule reflects “both . . . the enormous potential for rent seeking that would be created if property rights could be obtained in [those basic principles] and . . . the enormous transaction costs that would be imposed on would-be users.” Id., at 305-306; cf. Nichols v. Universal Pictures Corp., 45 F. 2d 119, 122 (CA2 1930) (L. Hand, J.).

Thus, the Court has recognized that “[phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are . . . the basic tools of scientific and technological work.” Gottschalk v. Benson, 409 U. S. 63, 67 (1972). It has treated fundamental scientific principles as “part of the storehouse of knowledge” and manifestations of laws of nature as “free to all men and reserved exclusively to none.” Funk Bros., supra, at 130. And its doing so reflects a basic judgment that protection in such cases, despite its potentially positive incentive effects, would too often severely interfere with, or discourage, development and the further spread of useful knowledge itself.

B

In the 1980’s three university doctors, after conducting research into vitamin deficiencies, found a correlation between high levels of homocysteine in the blood and deficiencies of two essential vitamins, folate (folic acid) and cobalamin (vitamin B12). They also developed more accurate methods for testing body fluids for homocysteine, using gas chromatography and mass spectrometry. They published their findings in 1985. They obtained a patent. And that patent eventually found its commercial way into the hands of Competitive Technologies, Inc. (CTI), and its licensee Metabolite Laboratories, Inc. (Metabolite), the respondents here.

The patent contains several claims that cover the researchers’ new methods for testing homocysteine levels using gas chromatography and mass spectrometry. Supp. App. 30. In 1991, LabCorp (in fact, a corporate predecessor) took a license from Metabolite permitting it to use the tests described in the patent in return for 27.5% of related revenues. Their agreement permitted LabCorp to terminate the arrangement if “a more cost effective commercial alternative is available that does not infringe a valid and enforceable claim of” the patent. App. 305 (emphasis added).

Until 1998, LabCorp used the patented tests and paid royalties. By that time, however, growing recognition that elevated homocysteine levels might predict risk of heart disease led to increased testing demand. Other companies began to produce alternative testing procedures. And LabCorp decided to use one of these other procedures—a test devised by Abbott Laboratories that LabCorp concluded was “far superior.” Id., at 167 (testimony of Peter Wentz).

LabCorp continued to pay royalties to respondents whenever it used the patented tests. But it concluded that Abbott’s test did not fall within the patent’s protective scope. And LabCorp consequently refused to pay royalties when it used the Abbott test. Id., at 237 (payment eliminated due to “change in methodology”).

In response, respondents brought this suit against Lab-Corp for patent infringement and breach of the license agreement. They did not claim that LabCorp’s use of the Abbott test infringed the patent’s claims describing methods for testing for homocysteine. Instead, respondents relied on a broader claim not limited to those tests, namely, claim 13, the sole claim at issue here. That claim—set forth below in its entirety—seeks patent protection for:

“A method for detecting a deficiency of cobalamin or folate in warm-blooded animals comprising the steps of: “assaying a body fluid for an elevated level of total homocysteine; and
“correlating an elevated level of total homocysteine in said body fluid with a deficiency of cobalamin or folate.” Supp. App. 30.

Claim 13, respondents argued, created a protected monopoly over the process of “correlating” test results and potential vitamin deficiencies. The parties agreed that the words “assaying a body fluid” refer to the use of any test at all, whether patented or not patented, that determines whether a body fluid has an “elevated level of total homocysteine.” And at trial, the inventors testified that claim 13’s “correlating” step consists simply of a physician’s recognizing that a test that shows an elevated homocysteine level—by that very fact—shows the patient likely has a cobalamin or folate deficiency. App. 108-111 (testimony of Dr. Sally Stabler); id., at 137-142, 155-161 (testimony of Dr. Robert Allen). They added that, because the natural relationship between homocysteine and vitamin deficiency was now well known, such “correlating” would occur automatically in the mind of any competent physician. Id., at 137-138 (same).

On this understanding of the claim, respondents argued, LabCorp was liable for inducing doctors to infringe. More specifically, LabCorp would conduct homocysteine tests and report the results measured in micromoles (millionths of a mole) per liter (symbolized mol/L). Doctors, because of their training, would know that a normal homocysteine range in blood is between 7 and 22 mol/L (and in urine between 1 and 20 mol/L), Supp. App. 14, and would know that an elevated homocysteine level is correlated with a vitamin deficiency. Hence, in reviewing the test results, doctors would look at the mol/L measure and automatically reach a conclusion about whether or not a person was suffering from a vitamin deficiency. Claim 13 therefore covered every homo-cysteine test that a doctor reviewed. And since LabCorp had advertised its tests and educated doctors about the correlation, LabCorp should be liable for actively inducing the doctors’ infringing acts. See 35 U. S. C. § 271(b).

The jury found LabCorp liable on this theory. The District Court calculated damages based on unpaid royalties for some 350,000 homocysteine tests performed by LabCorp using the Abbott method. The court also enjoined LabCorp from performing “any homocysteine-only test, including, without limitation homocysteine-only tests via the Abbott method.” App. to Pet. for Cert. 36a-37a (internal quotation marks omitted).

LabCorp appealed. It argued to the Federal Circuit that the trial court was wrong to construe claim 13 so broadly that infringement took place “every time a physician does nothing more than look at a patient’s homocysteine level.” Corrected Brief for Appellant in No. 03-1120 (CA Fed.), p. 28 (hereinafter Brief for Appellant). Indeed, if so construed (rather than construed, say, to cover only patented tests), then claim 13 was “invalid for indefiniteness, lack of written description, non-enablement, anticipation, and obviousness.” Id., at 38. LabCorp told the Federal Circuit:

“If the Court were to uphold this vague claim, anyone could obtain a patent on any scientific correlation—that there is a link between fact A and fact B—merely by drafting a patent claiming no more than ‘test for fact A and correlate with fact B’.. . . Claim 13 does no more than that. If it is upheld, CTI would improperly gain a monopoly over a basic scientific fact rather than any novel invention of its own. The law is settled that no such claim should be allowed. See, e. g., Diamond v. Diehr, 450 U. S. 175, 185 (1981).. .; Chisum on Patents § 1.03[6].” Id., at 41.

The Federal Circuit rejected LabCorp’s arguments. It agreed with the District Court that claim 13’s “correlating” step simply means “relating total homocysteine levels to cobalamin or folate deficiency, a deficiency in both, or a deficiency in neither.” 370 F. 3d 1354, 1363 (2004). That meaning, it said, is “discernible and clear”; it is definite, it is described in writing, and it would enable virtually anyone to follow the instruction it gives. And that is sufficient. Id., at 1366-1367. The Court did not address LabCorp’s argument that, if so construed, claim 13 must be struck down as an improper effort to obtain patent protection for a law of nature.

Moreover, the Circuit concluded, because any competent doctor reviewing test results would automatically correlate those results with the presence or absence of a vitamin deficiency, virtually every doctor who ordered and read the tests was a direct infringer. And because LabCorp “publishes ... Continuing Medical Education articles” and other pieces, which urge doctors to conduct the relevant tests and to reach a conclusion about whether a patient is suffering from a vitamin deficiency based upon the test results, LabCorp induces infringement. Id., at 1365. Finally, the court rejected LabCorp’s challenge to the injunction. Id., at 1372.

LabCorp filed a petition for certiorari. Question Three of the petition asks “[wjhether a method patent. .. directing a party simply to ‘correlat[e]’ test results can validly claim a monopoly over a basic scientific relationship . . . such that any doctor necessarily infringes the patent merely by thinking about the relationship after looking at a test result.” Pet. for Cert. i. After calling for and receiving the views of the Solicitor General, 543 U. S. 1185 (2005), we granted the petition, limited to Question Three.

II

The question before us is whether claim 13, as construed and applied in the way I have described in Part I-B, is invalid in light of the “law of nature” principle, described in Part I-A. I believe that we should answer that question. There is a technical procedural reason for not doing so, namely, that LabCorp did not refer in the lower courts to § 101 of the Patent Act, which sets forth subject matter that is patentable, and within the bounds of which the “law of nature” principle most comfortably fits. See 35 U. S. C. §101 (patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter”); Flook, 437 U. S., at 588-589. There is also a practical reason for not doing so, namely, that we might benefit from the views of the Federal Circuit, which did not directly consider the question. See, e. g., United States v. Bestfoods, 524 U. S. 51, 72-73 (1998).

Nonetheless, stronger considerations argue for our reaching a decision. For one thing, the technical procedural objection is tenuous. LabCorp argued the essence of its present claim below. It told the Federal Circuit that claim 13 as construed by the District Court was too “vague” because that construction would allow “anyone” to “obtain a patent on any scientific correlation”; it would permit the respondents “improperly [to] gain a monopoly over a basic scientific fact” despite “settled” law “that no such claim should be allowed.” Brief for Appellant 41 (citing Diehr, 450 U. S., at 185; 1 D. Chisum, Patents §1.03[6] (2006 ed.) (hereinafter Chisum)). LabCorp explicitly stated in its petition for certiorari that, “[i]f the Court allows the Federal Circuit opinion to stand ... [respondents] would improperly gain monopolies over basic scientific facts rather than any novel inventions of their own.” Pet. for Cert. 25 (citing Diehr, supra; Gottschalk, 409 U. S. 63; Funk Bros., 333 U. S. 127; Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U. S. 86 (1939)). And after considering the Solicitor General’s advice not to hear the case (primarily based upon LabCorp’s failure to refer to 35 U. S. C. § 101), we rejected that advice, thereby “necessarily considering] and rejecting] that contention as a basis for denying review.” United States v. Williams, 504 U. S. 36, 40 (1992).

For another thing, I can find no good practical reason for refusing to decide the case. The relevant issue has been fully briefed and argued by the parties, the Government, and 20 amici. The record is comprehensive, allowing us to learn the precise nature of the patent claim, to consider the commercial and medical context (which the parties and amici have described in detail), and to become familiar with the arguments made in all courts. Neither the factual record nor the briefing suffers from any significant gap. No party has identified any prejudice due to our answering the question. And there is no indication that LabCorp’s failure to cite § 101 reflected unfair gamesmanship.

Of course, further consideration by the Federal Circuit might help us reach a better decision. Lower court consideration almost always helps. But the thoroughness of the briefing leads me to conclude that the extra time, cost, and uncertainty that further proceedings would engender are not worth the potential benefit.

Finally, I believe that important considerations of the public interest—including that of clarifying the law in this area sooner rather than later—argue strongly for our deciding the question presented now. See Part IV, infra.

Ill

I turn to the merits. The researchers who obtained the present patent found that an elevated level of homocysteine in a warmblooded animal is correlated with folate and cobalamin deficiencies. As construed by the Federal Circuit, claim 13 provides those researchers with control over doctors’ efforts to use that correlation to diagnose vitamin deficiencies in a patient. Does the law permit such protection or does claim 13, in the circumstances, amount to an invalid effort to patent a “phenomenon of nature”?

I concede that the category of nonpatentable “[phenomena of nature,” like the categories of “mental processes” and “abstract intellectual concepts,” is not easy to define. See Flook, supra, at 589 (“The line between a patentable ‘process’ and an unpatentable ‘principle’ is not always clear”); cf. Nichols, 45 F. 2d, at 122 (“[W]e are as aware as anyone that the line [between copyrighted material and non-copyrightable ideas], wherever it is drawn, will seem arbitrary”). After all, many a patentable invention rests upon its inventor’s knowledge of natural phenomena; many “process” patents seek to make abstract intellectual concepts workably concrete; and all conscious human action involves a mental process. See generally 1 Chisum § 1.03, at 1-78 to 1-295. Nor can one easily use such abstract categories directly to distinguish instances of likely beneficial, from likely harmful, forms of protection. Cf. FTC, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, ch. 3, p. 1 (Oct. 2003) (hereinafter FTC) (collecting evidence that “issues of fixed cost recovery, alternative appropriability mechanisms, and relationships between initial and follow-on innovation” vary by industry); Burk & Lemley, Policy Levers in Patent Law, 89 Va. L. Rev. 1575, 1577-1589 (2003) (“Recent evidence has demonstrated that this complex relationship [between patents and innovation] is . . . industry-specific at each stage of the patent process”).

But this case is not at the boundary. It does not require us to consider the precise scope of the “natural phenomenon” doctrine or any other difficult issue. In my view, claim 13 is invalid no matter how narrowly one reasonably interprets that doctrine.

There can be little doubt that the correlation between homocysteine and vitamin deficiency set forth in claim 13 is a “natural phenomenon.” That is what the petitioner argues. It is what the Solicitor General has told us. Brief for United States as Amicus Curiae 19 (filed Dec. 23, 2005) (“The natural relationship between elevated total homocysteine and deficiencies in the B vitamins is an unpatentable ‘principle in natural philosophy or physical science’ ” (quoting Morse, 15 How., at 116)). Indeed, it is close to what the respondents concede. Brief for Respondents 31 (“The correlation between total homocysteine and deficiencies in cobalamin and folate that the Inventors discovered could be considered, standing alone, a ‘natural phenomenon’ in the literal sense: It is an observable aspect of biochemistry in at least some human populations”).

The respondents argue, however, that the correlation is nonetheless patentable because claim 13 packages it in the form of a “process” for detecting vitamin deficiency, with discrete testing and correlating steps. They point to this Court’s statements that a “process is not unpatentable simply because it contains a law of nature,” Flook, 437 U. S., at 590; see also Gottschalk, supra, at 67, and that “an application of a law of nature ... to a known . . . process may well be deserving of patent protection,” Diehr, supra, at 187. They add that claim 13 is a patentable “application of a law of nature” because, considered as a whole, it (1) “Entails A Physical Transformation Of Matter,” namely,' the alteration of a blood sample during whatever test is used, Brief for Respondents 33 (citing Cochrane v. Deener, 94 U. S. 780, 788 (1877); Gottschalk, 409 U. S., at 70), and because it (2) "produces a 'useful, concrete, and tangible result,’” namely, detection of a vitamin deficiency, Brief for Respondents 36 (citing State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F. 3d 1368, 1373 (CA Fed. 1998)).

In my view, however, the cases to which the respondents refer do not support their claim. Neither Cochrane nor Gottschalk can help them because the process described in claim 13 is not a process for transforming blood or any other matter. Claim 13’s process instructs the user to (1) obtain test results and (2) think about them. Why should it matter if the test results themselves were obtained through an unpatented procedure that involved the transformation of blood? Claim 13 is indifferent to that fact, for it tells the user to use any test at all. Indeed, to use virtually any natural phenomenon for virtually any useful purpose could well involve the use of empirical information obtained through an unpatented means that might have involved transforming matter. Neither Cochrane nor Gottschalk suggests that that fact renders the phenomenon patentable. See Cochrane, supra, at 785 (upholding process for improving quality of flour by removing impurities with blasts of air); Gottschalk, supra, at 71-73 (rejecting process for converting numerals to binary form through mathematical formula).

Neither does the Federal Circuit’s decision in State Street Bank help the respondents. That case does say that a process is patentable if it produces a " 'useful, concrete and tangible result.’ ” 149 F. 3d, at 1373. But this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. The Court, for example, has invalidated a claim to the use of electromagnetic current for transmitting messages over long distances even though it produces a result that seems “useful, concrete, and tangible.” Morse, supra, at 116. Similarly the Court has invalidated a patent setting forth a system for triggering alarm limits in connection with catalytic conversion despite a similar utility, concreteness, and tangibility. Flook, supra. And the Court has invalidated a patent setting forth a process that transforms, for computer-programming purposes, decimal figures into binary figures—even though the result would seem useful, concrete, and at least arguably (within the computer’s wiring system) tangible. Gottschalk, supra.

Even were I to assume (purely for argument’s sake) that claim 13 meets certain general definitions of process patent-ability, however, it still fails the one at issue here: the requirement that it not amount to a simple natural correlation, i. e., a “natural phenomenon.” See Flook, supra, at 588, n. 9 (even assuming patent for improved catalytic converter system meets broad statutory definition of patentable “process,” it is invalid under natural phenomenon doctrine); Diehr, 450 U. S., at 184-185 (explaining that, even if patent meets all other requirements, it must meet the natural phenomena requirement as well).

At most, respondents have simply described the natural law at issue in the abstract patent language of a “process.” But they cannot avoid the fact that the process is no more than an instruction to read some numbers in light of medical knowledge. Cf. id., at 192 (warning against “allowing] a competent draftsman to evade the recognized limitations on the type of subject matter eligible for patent protection”). One might, of course, reduce the “process” to a series of steps, e. g., Step 1: gather data; Step 2: read a number; Step 3: compare the number with the norm; Step 4: act accordingly. But one can reduce any process to a series of steps. The question is what those steps embody. And here, aside from the unpatented test, they embody only the correlation between homocysteine and vitamin deficiency that the researchers uncovered. In my view, that correlation is an unpatentable “natural phenomenon,” and I can find nothing in claim 13 that adds anything more of significance.

IV

If I am correct in my conclusion in Part III that the patent is invalid, then special public interest considerations reinforce my view that we should decide this case. To fail to do so threatens to leave the medical profession subject to the restrictions imposed by this individual patent and others of its kind. Those restrictions may inhibit doctors from using their best medical judgment; they may force doctors to spend unnecessary time and energy to enter into license agreements; they may divert resources from the medical task of health care to the legal task of searching patent files for similar simple correlations; they may raise the cost of health care while inhibiting its effective delivery. See Brief for American Clinical Laboratory Association as Amicus Curiae 8-13.

Even if Part III is wrong, however, it still would be valuable to decide this case. Our doing so would help diminish legal uncertainty in the area, affecting a “substantial number of patent claims.” See Brief for United States as Amicus Curiae 12-14 (filed Aug. 26, 2005). It would permit those in the medical profession better to understand the nature of their legal obligations. It would help Congress determine whether legislation is needed. Cf. 35 U. S. C. § 287(c) (limiting liability of medical practitioners for performance of certain medical and surgical procedures).

In either event, a decision from this generalist Court could contribute to the important ongoing debate, among both specialists and generalists, as to whether the patent system, as currently administered and enforced, adequately reflects the “careful balance” that “the federal patent laws . . . em-bod[y].” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 146 (1989). See also eBay Inc. v. MercExchange, L. L. C, 547 U. S. 388, 396-397 (2006) (Kennedy, J., concurring); FTC, ch. 4, at 1-44; Pollack, The Multiple Unconstitutionality of Business Method Patents: Common Sense, Congressional Consideration, and Constitutional History, 28 Rutgers Computer & Tech. L. J. 61 (2002); Pitofsky, Antitrust and Intellectual Property: Unresolved Issues at the Heart of the New Economy, 16 Berkeley Tech. L. J. 535, 542-546 (2001).

For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    UNITED STATES v. GONZALEZ-LOPEZ
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
    No. 05-352.
    Argued April 18, 2006
    Decided June 26, 2006

      Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Lisa S. Blatt, and Daniel S. Goodman.

      Jeffrey L. Fisher argued the cause for respondent. With him on the brief were J. Richard McEachern, Pamela S. Karlan, Joseph H. Low IV, Thomas C. Goldstein, Amy Howe, and Kevin K. Russell

        Quin Denvir, Joshua L. Dratel, and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.

   Justice Scalia

delivered the opinion of the Court.

We must decide whether a trial court’s erroneous deprivation of a criminal defendant’s choice of counsel entitles him to a reversal of his conviction.

I

Respondent Cuauhtemoc Gonzalez-Lopez was charged in the Eastern District of Missouri with conspiracy to distribute more than 100 kilograms of marijuana. His family hired attorney John Fahle to represent him. After the arraignment, respondent called a California attorney, Joseph Low, to discuss whether Low would represent him, either in addition to or instead of Fahle. Low flew from California to meet with respondent, who hired him.

Some time later, Low and Fahle represented respondent at an evidentiary hearing before a Magistrate Judge. The Magistrate Judge accepted Low’s provisional entry of appearance and permitted Low to participate in the hearing on the condition that he immediately file a motion for admission pro hac vice. During the hearing, however, the Magistrate Judge revoked the provisional acceptance on the ground that, by passing notes to Fahle, Low had violated a court rule restricting the cross-examination of a witness to one counsel.

The following week, respondent informed Fahle that he wanted Low to be his only attorney. Low then filed an application for admission pro hac vice. The District Court denied his application without comment. A month later, Low filed a second application, which the District Court again denied without explanation. Low’s appeal, in the form of an application for a writ of mandamus, was dismissed by the United States Court of Appeals for the Eighth Circuit.

Fahle filed a motion to withdraw as counsel and for a show-cause hearing to consider sanctions against Low. Fahle asserted that, by contacting respondent while respondent was represented by Fahle, Low violated Mo. Rule of Professional Conduct 4-4.2 (2003), which prohibits a lawyer “[i]n representing a client” from “communicat[ing] about the subject of the representation with a party . . . represented by another lawyer” without that lawyer’s consent. Low filed a motion to strike Fahle’s motion. The District Court granted Fahle’s motion to withdraw and granted a continuance so that respondent could find new representation. Respondent retained a local attorney, Karl Dickhaus, for the trial. The District Court then denied Low’s motion to strike and, for the first time, explained that it had denied Low’s motions for admission pro hoc vice primarily because, in a separate case before it, Low had violated Rule 4-4.2 by communicating with a represented party.

The case proceeded to trial, and Dickhaus represented respondent. Low again moved for admission and was again denied. The court also denied Dickhaus’s request to have Low at counsel table with him and ordered Low to sit in the audience and to have no contact with Dickhaus during the proceedings. To enforce the court’s order, a United States Marshal sat between Low and Dickhaus at trial. Respondent was unable to meet with Low throughout the trial, except for once on the last night. The jury found respondent guilty.

After trial, the District Court granted Fahle’s motion for sanctions against Low. It read Rule 4-4.2 to forbid Low’s contact with respondent without Fahle’s permission. It also reiterated that it had denied Low’s motions for admission on the ground that Low had violated the same Rule in a separate matter.

Respondent appealed, and the Eighth Circuit vacated the conviction. 399 F. 3d 924 (2005). The court first held that the District Court erred in interpreting Rule 4-4.2 to prohibit Low’s conduct both in this case and in the separate matter on which the District Court based its denials of his admission motions. The District Court’s denials of these motions were therefore erroneous and violated respondent’s Sixth Amendment right to paid counsel of his choosing. See id., at 928-932. The court then concluded that this Sixth Amendment violation was not subject to harmless-error review. See id., at 932-935. We granted certiorari. 546 U. S. 1085 (2006).

II

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U. S. 153, 159 (1988). Cf. Powell v. Alabama, 287 U. S. 45, 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”). The Government here agrees, as it has previously, that “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625 (1989). To be sure, the right to counsel of choice “is circumscribed in several important respects.” Wheat, supra, at 159. But the Government does not dispute the Eighth Circuit’s conclusion in this case that the District Court erroneously deprived respondent of his counsel of choice.

The Government contends, however, that the Sixth Amendment violation is not “complete” unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668, 691-696 (1984)—i. e., that substitute counsel’s performance was deficient and the defendant was prejudiced by it. In the alternative, the Government contends that the defendant must at least demonstrate that his counsel of choice would have pursued a different strategy that would have created a “reasonable probability that... the result of the proceedings would have been different,” id., at 694—in other words, that he was prejudiced within the meaning of Strickland by the denial of his counsel of choice even if substitute counsel’s performance was not constitutionally deficient. To support these propositions, the Government points to our prior cases, which note that the right to counsel “has been accorded . . . not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162, 166 (2002) (internal quotation marks omitted). A trial is not unfair and thus the Sixth Amendment is not violated, the Government reasons, unless a defendant has been prejudiced.

Stated as broadly as this, the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment’s right of confrontation—a line of reasoning that “abstracts from the right to its purposes, and then eliminates the right.” Maryland v. Craig, 497 U. S. 836, 862 (1990) (Scalia, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore “indicia of reliability,” the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id., at 61.

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.” Strickland, supra, at 684-685. In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.”

The cases the Government relies on involve the right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice. See, e. g., Strickland, 466 U. S., at 694; Mickens, supra, at 166; United States v. Cronic, 466 U. S. 648 (1984). The earliest case generally cited for the proposition that “the right to counsel is the right to the effective assistance of counsel,” McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970), was based on the Due Process Clause rather than on the Sixth Amendment, see Powell, 287 U. S., at 57 (cited in, e. g., McMann, supra, at 771, n. 14). And even our recognition of the right to effective counsel within the Sixth Amendment was a consequence of our perception that representation by counsel “is critical to the ability of the adversarial system to produce just results.” Strickland, supra, at 685. Having derived the right to effective representation from the purpose of ensuring a fair trial, we have, logically enough, also derived the limits of that right from that same purpose. See Mickens, supra, at 166. The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to counsel at issue there—effective (not mistake-free) representation. Counsel cannot be “ineffective” unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have). Thus, a violation of the Sixth Amendment right to effective representation is not “complete” until the defendant is prejudiced. See Strickland, supra, at 685.

The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee. See Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24 (1898). See generally W. Beaney, The Right to Counsel in American Courts 18-24, 27-33 (1955). Cf. Powell, supra, at 53. Where the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.

Ill

Having concluded, in light of the Government’s concession of erroneous deprivation, that the trial court violated respondent’s Sixth Amendment right to counsel of choice, we must consider whether this error is subject to review for harmlessness. In Arizona v. Fulminante, 499 U. S. 279 (1991), we divided constitutional errors into two classes. The first we called “trial error,” because the errors “occurred during presentation of the case to the jury” and their effect may “be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.” Id., at 307-308 (internal quotation marks omitted). These include “most constitutional errors.” Id., at 306. The second class of constitutional error we called “structural defects.” These “defy analysis by ‘harmless-error’ standards” because they “affee[t] the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” Id., at 309-310. See also Neder v. United States, 527 U. S. 1, 7-9 (1999). Such errors include the denial of counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963), the denial of the right of self-representation, see McKaskle v. Wiggins, 465 U. S. 168, 177-178, n. 8 (1984), the denial of the right to public trial, see Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984), and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction, see Sullivan v. Louisiana, 508 U. S. 275 (1993).

We have little trouble concluding that erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id., at 282. Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.

The Government acknowledges that the deprivation of choice of counsel pervades the entire trial, but points out that counsel’s ineffectiveness may also do so and yet we do not allow reversal of a conviction for that reason without a showing of prejudice. But the requirement of showing prejudice in ineffectiveness "claims stems from the very definition of the right at issue; it is not a matter of showing that the violation was harmless, but of showing that a violation of the right to effective representation occurred. A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully denied. Moreover, if and when counsel’s ineffectiveness “pervades” a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel—in matters ranging from questions asked on voir dire and cross-examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently— or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable.

IV

Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 154, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626. Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U. S., at 159-160. We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163-164, and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1, 11-12 (1983). The court has, moreover, an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, supra, at 160. None of these limitations on the right to choose one’s counsel is relevant here. This is not a case about a court’s power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel. However broad a court’s discretion may be, the Government has conceded that the District Court here erred when it denied respondent his choice of counsel. Accepting that premise, we hold that the error violated respondent’s Sixth Amendment right to counsel of choice and that this violation is not subject to harmless-error analysis.

* * *

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Alito, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting.

I disagree with the Court’s conclusion that a criminal conviction must .automatically be reversed whenever a trial court errs in applying its rules regarding pro hac vice admissions and as a result prevents a defendant from being represented at trial by the defendant’s first-choice attorney. Instead, a defendant should be required to make at least some showing that the trial court’s erroneous ruling adversely affected the quality of assistance that the defendant received. In my view, the majority’s contrary holding is based on an incorrect interpretation of the Sixth Amendment and a misapplication of harmless-error principles. I respectfully dissent.

I

The majority makes a subtle but important mistake at the outset in its characterization of what the Sixth Amendment guarantees. The majority states that the Sixth Amendment protects “the right of a defendant who does not require appointed counsel to choose who will represent him.” Ante, at 144. What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant’s counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant’s counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment.

The language of the Sixth Amendment supports this interpretation. The Assistance of Counsel Clause focuses on what a defendant is entitled to receive (“Assistance”), rather than on the identity of the provider. The background of the adoption of the Sixth Amendment points in the same direction. The specific evil against which the Assistance of Counsel Clause was aimed was the English common-law rule severely limiting a felony defendant’s ability to be assisted by counsel. United States v. Ash, 413 U. S. 300, 306 (1973). “[T]he core purpose of the counsel guarantee was to assure Assistance’ at trial,” id., at 309, and thereby “to assure fairness in the adversary criminal process,” United States v. Morrison, 449 U. S. 361, 364 (1981). It was not “the essential aim of the Amendment ... to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U. S. 153, 159 (1988); cf. Morris v. Slappy, 461 U. S. 1, 14 (1983) (“[W]e reject the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel”).

There is no doubt, of course, that the right “to have the Assistance of Counsel” carries with it a limited right to be represented by counsel of choice. At the time of the adoption of the Bill of Rights, when the availability of appointed counsel was generally limited, that is how the right inevitably played out: A defendant’s right to have the assistance of counsel necessarily meant the right to have the assistance of whatever counsel the defendant was able to secure. But from the beginning, the right to counsel of choice has been circumscribed.

For one thing, a defendant’s choice of counsel has always been restricted by the rules governing admission to practice before the court in question. The Judiciary Act of 1789 made this clear, providing that parties “in all the courts of the United States” had the right to “the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein.” Ch. 20, §35, 1 Stat. 92. Therefore, if a defendant’s first-choice attorney was not eligible to appear under the rules of a particular court, the defendant had no right to be represented by that attorney. Indeed, if a defendant’s top 10 or top 25 choices were all attorneys who were not eligible to appear in the court in question, the defendant had no right to be represented by any of them. Today, rules governing admission to practice before particular courts continue to limit the ability of a criminal defendant to be represented by counsel of choice. See Wheat, supra, at 159.

The right to counsel of choice is also limited by conflict-of-interest rules. Even if a defendant is aware that his or her attorney of choice has a conflict, and even if the defendant is eager to waive any objection, the defendant has no constitutional right to be represented by that attorney. See 486 U. S., at 159-160.

Similarly, the right to be represented by counsel of choice can be limited by mundane case-management considerations. If a trial judge schedules a trial to begin on a particular date and defendant’s counsel of choice is already committed for other trials until some time thereafter, the trial judge has discretion under appropriate circumstances to refuse to postpone the trial date and thereby, in effect, to force the defendant to forgo counsel of choice. See, e. g., Slappy, supra; United States v. Hughey, 147 F. 3d 423, 428-431 (CA5 1998).

These limitations on the right to counsel of choice are tolerable because the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation. Limiting a defendant to those attorneys who are willing, available, and eligible to represent the defendant still leaves a defendant with a pool of attorneys to choose from—and, in most jurisdictions today, a large and diverse pool. Thus, these restrictions generally have no adverse effect on a defendant’s ability to secure the best assistance that the defendant’s circumstances permit.

Because the Sixth Amendment focuses on the quality of the assistance that counsel of choice would have provided, I would hold that the erroneous disqualification of counsel does not violate the Sixth Amendment unless the ruling diminishes the quality of assistance that the defendant would have otherwise received. This would not require a defendant to show that the second-choice attorney was constitutionally ineffective within the meaning of Strickland v. Washing ton, 466 U. S. 668 (1984). Rather, the defendant would be entitled to a new trial if the defendant could show “an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.” Rodriguez v. Chandler, 382 F. 3d 670, 675 (CA7 2004), cert. denied, 543 U. S. 1156 (2005).

This approach is fully consistent with our prior decisions. We have never held that the erroneous disqualification of counsel violates the Sixth Amendment when there is no prejudice, and while we have stated in several cases that the Sixth Amendment protects a defendant’s right to counsel of choice, see Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625 (1989); Wheat, supra, at 159; Powell v. Alabama, 287 U. S. 45, 53 (1932), we had no occasion in those cases to consider whether a violation of this right can be shown where there is no prejudice. Nor do our opinions in those cases refer to that question. It is therefore unreasonable to read our general statements regarding counsel of choice as addressing the issue of prejudice.

II

But even accepting, as the majority holds, that the erroneous disqualification of counsel of choice always violates the Sixth Amendment, it still would not follow that reversal is required in all cases. The Constitution, by its terms, does not mandate any particular remedy for violations of its own provisions. Instead, we are bound in this case by Federal Rule of Criminal Procedure 52(a), which instructs federal courts to “disregar[d]” “[a]ny error ... which does not affect substantial rights.” See also 28 U. S. C. §2111; Chapman v. California, 386 U. S. 18, 22 (1967). The only exceptions we have recognized to this rule have been for “a limited class of fundamental constitutional errors that ‘defy analysis by “harmless error” standards.’ ” Neder v. United States, 527 U. S. 1, 7 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 309 (1991)); see also Chapman, supra, at 23. “Such errors . . . ‘necessarily render a trial fundamentally unfair’ [and] deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair.’” Neder, supra, at 8-9 (quoting Rose v. Clark, 478 U. S. 570, 577-578 (1986); second omission in original); see also ante, at 149 (listing such errors).

Thus, in Neder, we rejected the argument that the omission of an element of a crime in a jury instruction “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” 527 U. S., at 9. In fact, in that case, “quite the opposite [was] true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder’s defense . . . .” Ibid.

Neder’s situation—with an impartial judge, the correct standard of proof, assistance of counsel, and a fair jury—is much like respondent’s. Fundamental unfairness does not inexorably follow from the denial of first-choice counsel. The “decision to retain a particular lawyer” is “often uninformed,” Cuyler v. Sullivan, 446 U. S. 335, 344 (1980); a defendant’s second-choice lawyer may thus turn out to be better than the defendant’s first-choice lawyer. More often, a defendant’s first- and second-choice lawyers may be simply indistinguishable. These possibilities would not justify violating the right to choice of counsel, but they do make me hard put to characterize the violation as “always rendering] a trial unfair,” Neder, supra, at 9. Fairness may not limit the right, see ante, at 145, but it does inform the remedy.

Nor is it always or nearly always impossible to determine whether the first choice would have provided better representation than the second choice. There are undoubtedly cases in which the prosecution would have little difficulty showing that the second-choice attorney was better qualified than or at least as qualified as the defendant’s initial choice, and there are other cases in which it will be evident to the trial judge that any difference in ability or strategy could not have possibly affected the outcome of the trial.

Requiring a defendant to fall back on a second-choice attorney is not comparable to denying a defendant the right to be represented by counsel at all. Refusing to permit a defendant to receive the assistance of any counsel is the epitome of fundamental unfairness, and as far as the effect on the outcome is concerned, it is much more difficult to assess the effect of a complete denial of counsel than it is to assess the effect of merely preventing representation by the defendant’s first-choice attorney. To be sure, when the effect of an erroneous disqualification is hard to gauge, the prosecution will be unable to meet its burden of showing that the error was harmless beyond a reasonable doubt. But that does not justify eliminating the possibility of showing harmless error in all cases.

The majority’s focus on the “trial error’’/“structural defect” dichotomy is misleading. In Fulminante, we used these terms to denote two poles of constitutional error that had appeared in prior cases; trial errors always lead to harmless-error review, while structural defects always lead to automatic reversal. See 499 U. S., at 306-310. We did not suggest that trial errors are the only sorts of errors amenable to harmless-error review, or that all errors “affecting the framework within which the trial proceeds,” id., at 310, are structural. The touchstone of structural error is fundamental unfairness and unreliability. Automatic reversal is strong medicine that should be reserved for constitutional errors that “always” or “necessarily,” Neder, supra, at 9 (emphasis in original), produce such unfairness.

Ill

Either of the two courses outlined above—requiring at least some showing of prejudice, or engaging in harmless-error review—would avoid the anomalous and unjustifiable consequences that follow from the majority’s two-part rule of error without prejudice followed by automatic reversal.

Under the majority’s holding, a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly. By contrast, a defendant whose attorney was ineffective in the constitutional sense (i. e., “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment,” Strickland, 466 U. S., at 687) cannot obtain relief without showing prejudice.

Under the majority’s holding, a trial court may adopt rules severely restricting pro hoc vice admissions, cf. Leis v. Flynt, 439 U. S. 438, 443 (1979) (per curiam), but if it adopts a generous rule and then errs in interpreting or applying it, the error automatically requires reversal of any conviction, regardless of whether the erroneous ruling had any effect on the defendant.

Under the majority’s holding, some defendants will be awarded new trials even though it is clear that the erroneous disqualification of their first-choice counsel did not prejudice them in the least. Suppose, for example, that a defendant is initially represented by an attorney who previously represented the defendant in civil matters and who has little criminal experience. Suppose that this attorney is erroneously disqualified and that the defendant is then able to secure the services of a nationally acclaimed and highly experienced criminal defense attorney who secures a surprisingly favorable result at trial—for instance, acquittal on most but not all counts. Under the majority’s holding, the trial court’s erroneous ruling automatically means that the Sixth Amendment was violated—even if the defendant makes no attempt to argue that the disqualified attorney would have done a better job. In fact, the defendant would still be entitled to a new trial on the counts of conviction even if the defendant publicly proclaimed after the verdict that the second attorney had provided better representation than any other attorney in the country could have possibly done.

Cases as stark as the above hypothetical are unlikely, but there are certainly cases in which the erroneous disqualification of a defendant’s first-choice counsel neither seriously upsets the defendant’s preferences nor impairs the defendant’s representation at trial. As noted above, a defendant’s second-choice lawyer may sometimes be better than the defendant’s first-choice lawyer. Defendants who retain counsel are frequently forced to choose among attorneys whom they do not know and about whom they have limited information, and thus a defendant may not have a strong preference for any one of the candidates. In addition, if all of the attorneys considered charge roughly comparable fees, they may also be roughly comparable in experience and ability. Under these circumstances, the erroneous disqualification of a defendant’s first-choice attorney may simply mean that the defendant will be represented by an attorney whom the defendant very nearly chose initially and who is able to provide representation that is just as good as that which would have been furnished by the disqualified attorney. In light of these realities, mandating reversal without even a minimal showing of prejudice on the part of the defendant is unwarranted.

The consequences of the majority’s holding are particularly severe in the federal system and in other court systems that do not allow a defendant to take an interlocutory appeal when counsel is disqualified. See Flanagan v. United States, 465 U. S. 259, 260 (1984). Under such systems, appellate review typically occurs after the defendant has been tried and convicted. At that point, if an appellate court concludes that the trial judge made a marginally incorrect ruling in applying its own pro hac vice rules, the appellate court has no alternative but to order a new trial—even if there is not even any claim of prejudice. The Sixth Amendment does not require such results.

Because I believe that some showing of prejudice is required to establish a violation of the Sixth Amendment, I would vacate and remand to let the Court of Appeals determine whether there was prejudice. However, assuming for the sake of argument that no prejudice is required, I believe that such a violation, like most constitutional violations, is amenable to harmless-error review. Our statutes demand it, and our precedents do not bar it. I would then vacate and remand to let the Court of Appeals determine whether the error was harmless in this case.

       The dissent proposes yet a third standard—viz., that the defendant must show “ ‘an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.’” Post, at 156 (opinion of Alito, J.). That proposal suffers from the same infirmities (outlined later in text) that beset the Government’s positions. In addition, however, it greatly impairs the clarity of the law. How is a lower-court judge to know what an “identifiable difference” consists of? Whereas the Government at least appeals to Strickland and the ease law under it, the most the dissent can claim by way of precedential support for its rule is that it is “consistent with” eases that never discussed the issue of prejudice. Post, at 156.

       The dissent resists giving effect to our cases’ recognition, and the Government’s concession, that a defendant has a right to be defended by counsel of his choosing. It argues that because the Sixth Amendment guarantees the right to the “assistance of counsel,” it is not violated unless “the erroneous disqualification of a defendant’s counsel of choice . . . impair[s] the assistance that a defendant receives at trial.” Post, at 153. But if our cases (and the Government’s concession) mean anything, it is that the Sixth Amendment is violated when the erroneous disqualification of counsel “impair[s] the assistance that a defendant receives at trial [from the counsel that he chose].”

       In Wheat v. United States, 486 U. S. 153 (1988), where we formulated the right to counsel of choice and discussed some of the limitations upon it, we took note of the overarching purpose of fair trial in holding that the trial court has discretion to disallow a first choice of counsel that would creafe serious risk of conflict of interest. Id., at 159. It is one thing to conclude that the right to counsel of choice may be limited by the need for fair trial, but quite another to say that the right does not exist unless its denial renders the trial unfair.

       The dissent criticizes us for our trial error/struetural defect dichotomy, asserting that Fulminante never said that “trial errors are the only sorts of errors amenable to harmless-error review, or that all errors affecting the framework within which the trial proceeds are structural,” post, at 159 (internal quotation marks and citation omitted). Although it is hard to read that case as doing anything other than dividing constitutional error into two comprehensive categories, our ensuing analysis in fact relies neither upon such comprehensiveness nor upon trial error as the touchstone for the availability of harmless-error review. Rather, here, as we have done in the past, we rest our conclusion of structural error upon the difficulty of assessing the effect of the error. See Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984) (violation of the public-trial guarantee is not subject to harmlessness review because “the benefits of a public trial are frequently intangible, difficult to prove, or a matter of chance”); Vasquez v. Hillery, 474 U. S. 254, 263 (1986) (“[W]hen a petit jury has been selected upon improper criteria or has been exposed to prejudicial publicity, we have required reversal of the conviction because the effect of the violation cannot be ascertained”). The dissent would use “fundamental unfairness” as the sole criterion of structural error, and cites a case in which that was the determining factor, see Neder v. United States, 527 U. S. 1, 9 (1999) (quoted by the dissent, post, at 158). But this has not been the only criterion we have used. In addition to the above cases using difficulty of assessment as the test, we have also relied on the irrelevance of harmlessness, see McKaskle v. Wiggins, 465 U. S. 168, 177, n. 8 (1984) (“Since the right to self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis”). Thus, it is the dissent that creates a single, inflexible criterion, inconsistent with the reasoning of our precedents, when it asserts that only those errors that always or necessarily render a trial fundamentally unfair and unreliable are structural, post, at 159.

       In its discussion of the analysis that would be required to conduct harmless-error review, the dissent focuses on which counsel was “better.” See post, at 158-159. This focus has the effect of making the analysis look achievable, but it is fundamentally inconsistent with the principle (which the dissent purports to accept for the sake of argument) that the Sixth Amendment can be violated without a showing of harm to the quality of representation. Cf. McKaskle, supra, at 177, n. 8. By framing its inquiry in these terms and expressing indignation at the thought that a defendant may receive a new trial when his actual counsel was at least as effective as the one he wanted, the dissent betrays its misunderstanding of the nature of the right to counsel of choice and its confusion of this right with the right to effective assistance of counsel.

       This view is consistent with the Government’s concession that “[t]he Sixth Amendment . . . encompasses a non-indigent defendant’s right to select counsel who will represent him in a criminal prosecution,” Brief for United States 11, though this right is “circumscribed in several important respects,” id., at 12 (internal quotation marks omitted).

       See Act of Apr. 30, 1790, ch. 9, § 29, 1 Stat. 118 (providing for appointment of counsel in capital cases); Betts v. Brady, 316 U. S. 455, 467, n. 20 (1942) (surveying state statutes).

        Powell is the case generally cited as first noting a defendant’s right to counsel of choice. Powell involved an infamous trial in which the defendants were prevented from obtaining any counsel of their choice and were instead constrained to proceed with court-appointed counsel of dubious effectiveness. We held that this denied them due process and that “a fair opportunity to secure counsel of [one’s] own choice” is a necessary concomitant of the right to counsel. 287 U. S., at 53; cf. id., at 71 (“[T]he failure of the trial court to give [petitioners] reasonable time and opportunity to secure counsel was a clear denial of due process”). It is clear from the facts of the case that we were referring to the denial of the opportunity to choose any counsel, and we certainly said nothing to suggest that a violation of the right to counsel of choice could be established without any showing of prejudice.
      In Wheat, we held that the trial judge had not erred in declining the defendant’s waiver of his right to conflict-free counsel, and therefore we had no need to consider whether an incorrect ruling would have required reversal of the defendant’s conviction in the absence of a showing of prejudice. We noted that “the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment,” 486 U. S., at 159, but we went on to stress that this right “is circumscribed in several important respects,” ibid., including by the requirement of bar membership and rules against conflicts of interest. Wheat did not suggest that a violation of the limited Sixth Amendment right to counsel of choice can be established without showing prejudice, and our statements about the Sixth Amendment’s “purpose” and “essential aim”—providing effective advocacy and a fair trial, ibid.—suggest the opposite.
      Finally, in Caplin & Drysdale, we held that the challenged action of the trial judge—entering an order forfeiting funds that the defendant had earmarked for use in paying his attorneys—had been proper, and, accordingly, we had no occasion to address the issue of prejudice. We recognized that “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds,” 491 U. S., at 624-625, but we added that “[w]hatever the full extent of the Sixth Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not go beyond ‘the individual’s right to spend his own money to obtain the advice and assistance of. . . counsel,’ ” id., at 626 (omission in original).