author: Justice Blackmun Justice Powell, Chief Justice Rehnquist, Justice White,

text:
    GRIFFITH v. KENTUCKY
    No. 85-5221.
    Argued October 14, 1986
    Decided January 13, 1987

      Blackmun, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, Powell, Stevens, and Scalia, JJ., joined. Powell, J., filed a concurring opinion, post, p. 328. Rehnquist, C. J., filed a dissenting opinion, post, p. 329. White, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’ConnoR, J., joined, post, p. 329.

      J. Vincent Aprile II argued the cause for petitioner in No. 85-5221. With him on the brief were Larry H. Marshall and JoAnne M. Vanish. Fred Haddad argued the cause and filed a brief for petitioner in No. 85-5731.

      Paul W. Richwalsky, Jr., Assistant Attorney General of Kentucky, argued the cause for respondent in No. 85-5221. With him on the brief were David L. Armstrong, Attorney General, and David K. Martin, Assistant Attorney General. Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Trott, and Roy T. Englert, Jr.

      Together with No. 85-5731, Brown v. United States, on certiorari to the United States Court of Appeals for the Tenth Circuit.

        Julius LeVonne Chambers, Charles Stephen Ralston, and Steven L. Winter filed a brief for the NAACP Legal Defense & Educational Fund, Inc., et al. as amici curiae urging reversal in both cases.

        Frances Baker Jack filed a brief for the National Association of Criminal Defense Lawyers, Inc., as amicus curiae in both cases.
      Briefs of amici curiae in No. 85-5221 were filed for the State of North Carolina et al. by Lacy H. Thornburg, Attorney General of North Carolina, Joan H. Byers, Special Deputy Attorney General, Charles A. Grad-dick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney General of Arkansas, John I. Kelly, Chief State’s Attorney of Connecticut, Charles M. Oberly, Attorney

        General of Delaware, Corinne K. A. Watanabe, Attorney General of Hawaii, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Thomas J. Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, William J. Guste, Jr., Attorney General of Louisiana, Stephen H. Sachs, Attorney General of Maryland, Edwin L. Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Michael Turpén, Attorney General of Oklahoma, Travis Medlock, Attorney General of South Carolina, W. J. Michael Cody, Attorney General of Tennessee, Jim Mattox, Attorney General of Texas, David L. Wilkinson, Attorney General of Utah, Mary Sue Terry, Attorney General of Virginia, and Archie G. McClintock, Attorney General of Wyoming; for the Lawyers’ Committee for Civil Rights under Law by Barry Sullivan, Marshall J. Schmitt, Harold R. Tyler, Jr., James Robertson, Norman Redlich, William L. Robinson, and Judith A. Winston; and for the National Legal Aid and Defender Association by Patricia Unsinn.

   Justice Blackmun

delivered the opinion of the Court.

These cases, one state and one federal, concern the retrospective application of Batson v. Kentucky, 476 U. S. 79 (1986).

In Batson, 476 U. S., at 96-98, this Court ruled that a defendant in a state criminal trial could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecution’s use of peremptory challenges to strike members of the defendant’s race from the jury venire, and that, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges. In the present cases we consider whether that ruling is applicable to litigation pending on direct state or federal review or not yet final when .Batson was decided. We answer that question in the affirmative.

I

A. No. 85-5221. Petitioner Randall Lamont Griffith, a black person, was indicted in 1982 in the Circuit Court of Jefferson County, Ky. (the same court where Batson was tried), on charges of first-degree robbery, theft by unlawful taking, and being a persistent felony offender in the second degree. App. 2. On the first day of trial, the prosecution and defense attorneys conducted voir dire examination of the jury venire and exercised their peremptory challenges. The prosecution used four of its five allotted challenges to strike four of the five prospective black jurors. The defense used eight of its allotted nine challenges to strike prospective white jurors. There were two duplicate strikes. The two extra jurors who remained because of the duplicate strikes, one of whom was a black person, then were removed by random draw. Thus, no black person remained on the jury. Id., at 5, 12-13.

Defense counsel expressed concern that Griffith was to be tried by an all-white jury. He asked the court to request the prosecutor to state his reasons for exercising peremptory challenges against the four prospective black jurors. The request was refused. Id., at 13. Counsel then moved for discharge of the panel, alleging that the prosecutor’s use of peremptory challenges to remove all but one of the prospective black jurors constituted a violation of Griffith’s Sixth and Fourteenth Amendment rights. Id., at 15. The court denied the motion. The jury returned a verdict of guilty on the charge of first-degree robbery and fixed petitioner’s punishment at 10 years’ imprisonment. The jury then found petitioner guilty of being a persistent felony offender, and, pursuant to Ky. Rev. Stat. §532.080 (1985), enhanced his sentence to 20 years’ imprisonment.

The Supreme Court of Kentucky, with an unpublished memorandum opinion, affirmed the judgment of conviction. App. 17. The court rejected petitioner’s claim that the prosecutor’s use of peremptory challenges deprived him of guaranteed equal protection. It relied on Swain v. Alabama, 380 U. S. 202 (1965), where this Court ruled that a black defendant did not establish a violation of the Equal Protection Clause solely on proof of the prosecutor’s use of peremptory challenges to strike black jurors at the defendant’s own trial. Id., at 221-222. The Court noted, however, that an inference of purposeful discrimination could be raised where a prosecutor had engaged in a pattern of challenging black jurors in a series of cases. See id., at 223-224. The Kentucky court concluded that Swain disposed of petitioner’s claim and it “decline[d] to go further than the Swain court.” App. 18.

Griffith timely filed here a petition for a writ of certiorari, While his petition was pending, this Court decided Batson v. Kentucky, supra, where it rejected a portion of the reasoning of Swain v. Alabama on which the Kentucky court had relied. 476 U. S., at 89-96. Two months later, in Allen v. Hardy, 478 U. S. 255 (1986) (per curiam), we held that the ruling in Batson was not to be applied retroactively to a case on federal habeas review. We granted certiorari in Griffith’s case, 476 U. S. 1157 (1986), limited to the question whether the ruling in Batson applies retroactively to a state conviction pending on direct review at the time of the Batson decision.

B. No. 85-5731. In 1984, petitioner Willie Davis Brown, a black person, was convicted by a jury in the United States District Court for the Western District of Oklahoma on narcotics charges. During jury selection, two venire panels were assembled. 6 Record 2-10. There were six prospective black jurors in the total venire. Four were excused for cause by the court and the other two were excused by the prosecutor’s use of peremptory challenges. Id., at 20. Defense counsel objected to the prosecutor’s use of peremptory challenges to strike the black persons from the jury, claiming that petitioner was thereby denied a jury representative of the community. Id., at 20-21. No action was taken in response to that objection.

As prospective jurors were being assembled for the second venire panel, the prosecutor called the jury clerk to inquire about the racial composition of the additional venire. At a hearing held later while the jury was deliberating, there was evidence that the prosecutor said to the clerk: “We would like to have as few black jurors as possible.” App. 51. The clerk testified, however, that she remembered the prosecutor’s comment to be: “Don’t get any blacks on this jury.” Id., at 38-39. The clerk went on to say that she did not alter the jury selection in any way in response to the prosecutor’s comment. Id., at 44-45. The District Court concluded that the prosecutor’s contact with the jury clerk “would have to be looked at and dealt with by someone,” id., at 44, inasmuch as it fell “into the category of possible prosecutorial misconduct,” id., at 46, but that it did not affect the integrity of the selection of the jury. Id., at 45. The court therefore concluded that a new trial would not be necessary if the jury convicted petitioner. Id., at 46.

The United States Court of Appeals for the Tenth Circuit affirmed the judgment of conviction. 770 F. 2d 912 (1985). It rejected Brown’s claim that the prosecutor’s use of peremptory challenges to exclude prospective black jurors, combined with his call to the jury clerk, violated petitioner’s right to an impartial jury. The court concluded that Brown had not met Swain’s threshold requirement that petitioner must show a systematic and intentional course of conduct by the prosecutor calculated to exclude black jurors in “case after case.” 770 F. 2d, at 914. It further concluded that the communication by the prosecutor to the jury clerk did not suggest a pattern of systematic exclusion of black jurors. Although the court observed that the prosecutor’s action was “improper” and “must be condemned,” ibid., it concluded, as had the District Court, that the prosecutor’s request had no effect on the selection of Brown’s jury.

Prior to our Batson decision, petitioner timely filed with this Court a petition for a writ of certiorari. We granted certiorari, 476 U. S. 1157 (1986), again limited to the question whether the ruling in Batson applies retroactively to a federal conviction then pending on direct review. The case was set for argument in tandem with Griffith’s case.

I — I HH

Twenty-one years ago, this Court adopted a three-pronged analysis for claims of retroactivity of new constitutional rules of criminal procedure. See Linkletter v. Walker, 381 U. S. 618 (1965). In Linkletter, the Court held that Map-p v. Ohio, 367 U. S. 643 (1961), which extended the Fourth Amendment exclusionary rule to the States, would not be applied retroactively to a state conviction that had become final before Mapp was decided. The Court explained that “the Constitution neither prohibits nor requires retrospective effect” of a new constitutional rule, and that a determination of retro-activity must depend on “weighting] the merits and demerits in each case.” 381 U. S., at 629. The Court’s decision not to apply Mapp retroactively was based on “the purpose of the Mapp rule; the reliance placed upon the [previous] doctrine; and the effect on the administration of justice of a retrospective application of Mapp” 381 U. S., at 636. See also Stovall v. Denno, 388 U. S. 293, 297 (1967) (retroactivity depends on “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards”).

Shortly after the decision in Linkletter, the Court held that the three-pronged analysis applied both to convictions that were final and to convictions pending on direct review. See Johnson v. New Jersey, 384 U. S. 719, 732 (1966); Stovall v. Denno, 388 U. S., at 300. In the latter case, the Court concluded that, for purposes of applying the three factors of the analysis, “no distinction is justified between convictions now final . . . and convictions at various stages of trial and direct review.” Ibid. Thus, a number of new rules of criminal procedure were held not to apply retroactively either to final cases or to cases pending on direct review. See, e. g., Stovall v. Denno, supra; DeStefano v. Woods, 392 U. S. 631, 635, n. 2 (1968); Desist v. United States, 394 U. S. 244, 253-254 (1969); Daniel v. Louisiana, 420 U. S. 31 (1975) (per curiam).

In United States v. Johnson, 457 U. S. 537 (1982), however, the Court shifted course. In that case, we reviewed at some length the history of the Court’s decisions in the area of retroactivity and concluded, in the words of Justice Harlan: “ ‘ “[RJetroactivity” must be rethought. ’ ” Id., at 548 (quoting Desist v. United States, 394 U. S., at 258 (dissenting opinion)). Specifically, we concluded that the retroactivity analysis for convictions that have become final must be different from the analysis for convictions that are not final at the time the new decision is issued. We observed that, in a number of separate opinions since Linkletter, various Members of the Court “have asserted that, at a minimum, all defendants whose cases were still pending on direct appeal at the time of the law-changing decision should be entitled to invoke the new rule.” 457 U. S., at 545, and n. 9 (collecting opinions). The rationale for distinguishing between cases that have become final and those that have not, and for applying new rules retroactively to cases in the latter category, was explained at length by Justice Harlan in Desist v. United States, 394 U. S., at 256 (dissenting opinion), and in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgment). In United States v. Johnson, we embraced to a significant extent the comprehensive analysis presented by Justice Harlan in those opinions.

In Justice Harlan’s view, and now in ours, failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudi-| cation. First, it is a settled principle that this Court adjudi-* cates only “cases” and “controversies.” See U. S. Const., Art. III, §2. Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review. Justice Harlan observed:

“If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. ... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.” Mackey v. United States, 401 U. S., at 679 (opinion concurring in judgment).

As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule. But we fulfill our judicial responsibility by instructing the lower courts to apply the new rule retroactively to cases not yet final. Thus, it is the nature of judicial review that precludes us from “[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.” Ibid. See United States v. Johnson, 457 U. S., at 546-547, 555.

Second, selective application of new rules violates the principle of treating similarly situated defendants the same. See Desist v. United States, 394 U. S., at 258-259 (Harlan, J., dissenting). As we pointed out in United States v. Johnson, the problem with not applying new rules to cases pending on direct review is “the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary” of a new rule. 457 U. S., at 556, n. 16 (emphasis in original). Although the Court had tolerated this inequity for a time by not applying new rules retroactively to cases on direct review, we noted: “The time for toleration has come to an end.” Ibid.

In United States v. Johnson, our acceptance of Justice Harlan’s views led to the holding that “subject to [certain exceptions], a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” Id., at 562. The exceptions to which we referred related to three categories in which we concluded that existing precedent established threshold tests for the retro-activity analysis. In two of these categories, the new rule already was retroactively applied: (1) when a decision of this Court did nothing more than apply settled precedent to different factual situations, see id., at 549, and (2) when the new ruling was that a trial court lacked authority to convict a criminal defendant in the first place. See id., at 550.

The third category — where a new rule is a “clear break” with past precedent — is the one at issue in these cases. We described it in United States v. Johnson, 457 U. S., at 549-550:

“[WJhere the Court has expressly declared a rule of criminal procedure to be ‘a clear break with the past,’ Desist v. United States, 394 U. S., at 248, it almost invariably has gone on to find such a newly minted principle nonretroactive. See United States v. Peltier, 422 U. S. 531, 547, n. 5 (1975) (Brennan, J., dissenting) (collecting cases). In this . . . type of case, the traits of the particular constitutional rule have been less critical than the Court’s express threshold determination that the ‘“new” constitutional interpretatio[n] ... so change[s] the law that prospectivity is arguably the proper course,’ Williams v. United States, 401 U. S., at 659 (plurality opinion). Once the Court has found that the new rule was unanticipated, the second and third Stovall factors —reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of nonretroactivity. See, e. g., Gosa v. Mayden, 413 U. S., at 672-673, 682-685 (plurality opinion); Michigan v. Payne, 412 U. S., at 55-57.”

Thus, we recognized what may be termed a “clear break exception.” Under this exception, a new constitutional rule was not applied retroactively, even to cases on direct review, if the new rule explicitly overruled a past precedent of this Court, or disapproved a practice this Court had arguably sanctioned in prior cases, or overturned a longstanding practice that lower courts had uniformly approved. Id., at 551. The Fourth Amendment ruling in Payton v. New York, 445 U. S. 573 (1980), with which United States v. Johnson was concerned, was not a clear break in any of these senses, and thus its retroactivity status was not “effectively preordained” by falling within the “clear break” exception. 457 U. S., at 553-554.

In Shea v. Louisiana, 470 U. S. 51 (1985), we applied United States v. Johnson and held that the Fifth Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which prohibited the use, after a suspect had requested counsel, of a confession obtained by police-instigated interrogation without the suspect’s attorney’s being present, was retroactive to cases on direct review when Edwards was decided. Using Johnson’s rationale, we concluded there was nothing about a Fourth Amendment rule that suggested it should be given greater retroactive effect than a Fifth Amendment rule. 470 U. S., at 59. In addition, as in United States v. Johnson, we concluded that the new rule did not fall within the “clear break” exception. The previous Term, in Solem v. Stumes, 465 U. S. 638, 647 (1984), the Court had explicitly recognized that Edwards was “not the sort of ‘clear break’ case that is almost automatically non-retroactive.” Although, in Shea, we expressed some doubt' as to “the merits of a different retroactivity rule for cases” in which a new rule is a clear break with the past, we explained that “we have no need to be concerned with the question here.” 470 U. S., at 59, n. 5.

h — I I — I I — I

The question whether a different retroactivity rule should apply when a new rule is a “clear break” with the past, however, is squarely before us in the present cases. In Allen v. Hardy, 478 U. S. 255 (1986), a case which was here on federal habeas, we said that the rule in Batson “is an explicit and substantial break with prior precedent” because it “overruled [a] portion of Swain.” 478 U. S., at 258. We therefore now reexamine the rationale for maintaining a “clear break” exception to the general proposition that new rules governing criminal procedure should be retroactive to cases pending on direct review. For the same reasons that persuaded us in United States v. Johnson to adopt different conclusions as to convictions on direct review from those that already hadj become final, we conclude that an engrafted exception based| solely upon the particular characteristics of the new rule adopted by the Court is inappropriate.

First, the principle that this Court does not disregard current law, when it adjudicates a case pending before it on direct review, applies regardless of the specific characteristics of the particular new rule announced. The Court recognized in United States v. Johnson that the fact that a new rule is a clear break with the past is relevant primarily because it implicates the second and third Stovall factors of reliance by law enforcement officials and the burden on the administration of justice imposed by retroactive application. But even if these factors may be useful in deciding whether convictions that already have become final should receive the benefit of a new rule, the “clear break” exception, derived from the Stovall factors, reintroduces precisely the type of case-specific analysis that Justice Harlan rejected as inappropriate for cases pending on direct review.

Second, the use of a “clear break” exception creates the same problem of not treating similarly situated defendants the same. James Kirkland Batson, the petitioner in Batson v. Kentucky, and Randall Lamont Griffith, the petitioner in the present Kentucky case, were tried in Jefferson Circuit Court approximately three months apart. The same prosecutor exercised peremptory challenges at the trials. It was solely the fortuities of the judicial process that determined the case this Court chose initially to hear on plenary review. Justice Powell has pointed out that it “hardly comports with the ideal of ‘administration of justice with an even hand,’” when “one chance beneficiary — the lucky individual whose case was chosen as the occasion for announcing the new principle — enjoys retroactive application, while others similarly situated have their claims adjudicated under the old doctrine.” Hankerson v. North Carolina, 432 U. S. 233, 247 (1977) (opinion concurring in judgment), quoting Desist v. United States, 394 U. S., at 255 (Douglas, J., dissenting). See also Michigan v. Payne, 412 U. S. 47, 60 (1973) (Marshall, J., dissenting) (“Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment”). The fact that the new rule may constitute a clear break with the past has no bearing on the “actual inequity that results” when only one of many similarly situated defendants receives the benefit of the new rule. United States v. Johnson, 457 U. S., at 556, n. 16 (emphasis omitted).

We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past. Accordingly, in No. 85-5221, the judgment of the Supreme Court of Kentucky is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. In No. 85-5731, the judgment of the United States Court of Appeals for the Tenth Circuit is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

Justice Powell,

concurring.

I join the Court’s opinion, and consider it an important step toward ending the confusion that has resulted from applying Linkletter v. Walker, 381 U. S. 618 (1965), on a case-by-case basis. I concluded in 1977 that the Court would be well advised to adopt Justice Harlan’s view as to the retroactive application of our decisions both with respect to cases pending at the time on direct appeal and with respect to cases pending on habeas corpus petitions. See Hankerson v. North Carolina, 432 U. S. 233, 246 (1977) (concurring in judgment). The Harlan view is stated in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgment in Mackey and dissenting from judgment in Williams v. United States, 401 U. S. 646 (1971)); and Desist v. United States, 394 U. S. 244, 256 (1969) (dissenting opinion). I was persuaded by Justice Harlan’s reasoning then, and have followed it since. See Hankerson v. North Carolina, supra; Harlin v. Missouri, 439 U. S. 459, 460 (1979) (concurring in judgment); Brown v. Louisiana, 447 U. S. 323, 337 (1980) (concurring in judgment); Solem v. Stumes, 465 U. S. 638, 651 (1984) (concurring in judgment).

As the cases we decide today involve only the retroactivity of decisions pending on direct review, it was not necessary for the Court to express an opinion with respect to habeas corpus petitions. As I read the Court’s opinion, this question is carefully left open until it is squarely presented. It is to be hoped that the Court then will adopt the Harlan view of retroactivity in cases seeking relief on habeas petitions. See Mackey v. United States, supra, at 681-695. Under that view, habeas petitions generally should be judged according to the constitutional standards existing at the time of conviction.

Chief Justice Rehnquist,

dissenting.

As I stated in my dissenting opinion in Shea v. Louisiana, 470 U. S. 51, 61 (1985), I am willing to adopt both aspects of the approach to retroactivity propounded by Justice Harlan in his opinion in Mackey v. United States, 401 U. S. 667, 675 (1971). In Justice Harlan’s view, new constitutional rules governing criminal prosecutions should apply retroactively for cases pending on direct appeal when the rule is announced, and, with narrow exceptions, should not apply in collateral proceedings challenging convictions that become final before the rule is announced. The majority today adopts only a portion of this approach. I therefore join Justice White’s dissent, agreeing with him that, under the present state of our retroactivity jurisprudence, the majority erred in rejecting the reasons cited in Allen v. Hardy, 478 U. S. 255 (1986), for making Batson v. Kentucky, 476 U. S. 79 (1986), nonretroactive.

Justice White,

with whom The Chief Justice and Justice O’Connor join, dissenting.

Last Term this Court decided that the rule announced in Batson v. Kentucky, 476 U. S. 79 (1986), should not apply on collateral review of convictions that became final before the decision in Batson was announced. Allen v. Hardy, 478 U. S. 255 (1986). In reaching this judgment, the Court weighed the three factors that it has traditionally considered in deciding the retroactivity of a new rule of criminal procedure: “ ‘ “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.””’ Id., at 258 (quoting Solem v. Stumes, 465 U. S. 638, 643 (1984), in turn quoting Stovall v. Denno, 388 U. S. 293, 297 (1967)). No Justice suggested that this test is unworkable. The question, then, is why the Court feels constrained to fashion a different rule for cases on direct review. The reasons the Court offers are not new, and I find them as unpersuasive today as I have in the past:

“Two concerns purportedly underlie the majority’s decision. The first is that retroactivity is somehow an essential attribute of judicial decisionmaking, and that when the Court announces a new rule and declines to give it retroactive effect, it has abandoned the judicial role and assumed the function of a legislature — or, to use the term Justice Harlan employed in describing the problem, a ‘super-legislature.’ Desist v. United States, 394 U. S. 244, 259 (1969) (Harlan, J., dissenting). The second (and not completely unrelated) concern is fairness. It is the business of a court, the majority reasons, to treat like cases alike; accordingly, it is unfair for one litigant to receive the benefit of a new decision when another, identically situated, is denied the same benefit. The majority’s concerns are no doubt laudable, but I cannot escape the conclusion that the rule they have spawned makes no sense.
“As a means of avoiding what has come to be known as the super-legislature problem, the rule announced by the majority is wholly inadequate. True, the Court is not and cannot be a legislature, super or otherwise. But I should think that concerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court’s decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture-that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in ‘judicial legitimacy.’
“The claim that the majority’s rule serves the interest of fairness is equally hollow. Although the majority finds it intolerable to apply a new rule to one case on direct appeal but not to another, it is perfectly willing to tolerate disparate treatment of defendants seeking direct review of their convictions and prisoners attacking their convictions in collateral proceedings. As I have stated before, see [United States v.] Johnson, [457 U. S. 537, 566-568 (1982)] (White, J., dissenting); Williams v. United States, 401 U. S. 646, 656-659 (1971) (plurality opinion), it seems to me that the attempt to distinguish between direct and collateral challenges for purposes of retroactivity is misguided. Under the majority’s rule, otherwise identically situated defendants may be subject to different constitutional rules, depending on just how long ago now-unconstitutional conduct occurred and how quickly cases proceed through the criminal justice system. The disparity is no different in kind from that which occurs when the benefit of a new constitutional rule is retroactively afforded to the defendant in whose case it is announced but to no others; the Court’s new approach equalizes nothing except the numbers of defendants within the disparately treated classes.” Shea v. Louisiana, 470 U. S. 51, 62-64 (1985) (White, J., dissenting).

The Court’s invocation of fairness also overlooks the fact that it is a fortuity that we overruled Swain v. Alabama, 380 U. S. 202 (1965), in a case that came to us on direct review. We could as easily have granted certiorari and decided the matter in a case on collateral review, such as Allen v. Hardy. In that case, the principle of treating like cases alike would dictate that all cases on collateral review receive the benefit of the new rule. I trust that the Court would not go that far in letting the tail wag the dog; good judgment would — I hope — win out over blind adherence to the principle of treating like cáses alike. Yet today the Court acts as if it has no choice but to follow a mechanical notion of fairness without pausing to consider “sound principles of decision-making,” Stovall v. Denno, 388 U. S., at 301.

For the foregoing reasons, I would adhere to the approach set out in Stovall v. Denno, supra, at 300, and recognize no distinction for retroactivity purposes between cases on direct and collateral review. But even if I saw some merit in applying the Harlan approach to cases on direct appeal, I would nonetheless preserve the exception for “clear breaks” recognized in United States v. Johnson, 457 U. S. 537 (1982). Under our precedent, “a decision announcing a new standard ‘is almost automatically nonretroactive’ where the decision ‘has explicitly overruled past precedent.’” Allen v. Hardy, 478 U. S., at 258 (quoting Solem v. Stumes, 465 U. S., at 646, 647). As the majority in Johnson explained:

“Once the Court has found that [a] new rule was unanticipated, the second and third Stovall factors — reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of non-retroactivity.” 457 U. S., at 549-550 (citations omitted).

The Court has already recognized that Batson constitutes “an explicit and substantial break with prior precedent,” and that “prosecutors, trial judges, and appellate courts throughout our state and federal systems justifiably have relied on the standard of Swain. Allen v. Hardy, supra, at 258, 260. The reasons that the Court gave in Allen v. Hardy for concluding that “retroactive application of the Batson rule on collateral review of final convictions would seriously disrupt the administration of justice,” 478 U. S., at 260, apply equally to retroactive application of the Batson rule on direct review.

The majority knows that it is penalizing justifiable reliance on Swain, and in doing so causing substantial disruption in the administration of justice; yet the majority acts as if it has no principled alternative. This is not true; it would be a far sounder rule, and no less principled, to apply the Stovall test to determine retroactivity on both direct and collateral review. I respectfully dissent.

       In Kentucky, upon the completion of voir dire, the parties simultaneously exercise their respective peremptory challenges. Each side strikes names from the list of jurors who have been qualified and presents the strikes to the court. Ky. Rule Crim. Proc. 9.36(2).

       “If the number of prospective jurors remaining on the list [after peremptory challenges] exceeds the number of jurors to be seated, the cards bearing numbers identifying the prospective jurors [are] placed in a box” and the clerk of the court draws at random the number of cards necessary “to reduce the jury to the number required by law.” Ibid.

       Before submitting the case to the jury, the trial court granted Griffith’s request for a directed verdict of acquittal on the charge of theft by unlawful taking. See Tr. 204-206.

       The number of prospective jurors in the first venire who were excused for cause resulted in a remaining number insufficient to constitute a full petit jury. 6 Record 9-10.

       There is some confusion as to the number of prospective black jurors in the total venire. According to a statement in the record, there were six in the two panels. Id., at 20. At oral argument, counsel for petitioner Brown stated that five had been called. Tr. of Oral Arg. 3. There appears to be agreement, however, that two black jurors were excused by the prosecutor’s use of peremptory challenges. See ibid.; 6 Record 20; App. 14.

       By “final,” we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. See United States v. Johnson, 457 U. S. 537, 542, n. 8 (1982) (citing Linkletter v. Walker, 381 U. S. 618, 622, n. 5 (1965)).

       In United States v. Johnson, the Court held that the Fourth Amendment ruling announced in Payton v. New York, 445 U. S. 573 (1980), prohibiting police from making a warrantless, nonconsensual entry into a suspect’s home for the purpose of making a routine felony arrest, applied retroactively to a case pending on direct appeal.

       We noted in Johnson that our review did not address the area of civil retroactivity. See 457 U. S., at 563. That area continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971).

       See, among others, Brown v. Louisiana, 447 U. S. 323, 337 (1980) (Powell, J., with whom Stevens, J., joined, concurring in judgment); Harlin v. Missouri, 439 U. S. 459, 460 (1979) (Powell, J., concurring in judgment); Hankerson v. North Carolina, 432 U. S. 233, 245 (1977) (MARSHALL, J., concurring in judgment); id., at 246 (POWELL, J., concurring in judgment).

       These two categories, in which new rules are automatically applied retroactively, are not affected in any way by our decision today.

       In Solem v. Stumes the Court concluded that the rule announced in Edwards was not retroactive to a conviction that had become final.

       Petitioner Griffith argues that the Batson ruling was not a “clear break” with the past because it did not announce a new principle of constitutional law under the Equal Protection Clause. Whatever the merits of that argument might be, it is foreclosed by Allen v. Hardy.

       Batson was tried in February 1984. See App. in Batson v. Kentucky, O. T. 1985, No. 84-6263, p. 1. Petitioner Griffith was tried in May of that year. App. in No. 85-5221, p. 1. And, for what it may be worth, petitioner Brown was tried in Oklahoma in June 1984. App. in No. 85-5731, p. 2.

      The Court does not in these cases address the differential treatment of cases on direct and collateral review. I adhere to my view that the Court’s decisions in United States v. Johnson, 457 U. S. 537 (1982), and Shea v. Louisiana, 470 U. S. 51 (1985), provide no satisfactory justification for distinguishing between the two classes of cases. As I stated in Shea:

      “The majority recognizes that the distinction between direct review and habeas is problematic, but justifies its differential treatment by appealing to the need to draw ‘the curtain of finality,’ [470 U. S.,] at 60, on those who were unfortunate enough to have exhausted their last direct appeal at the time Edwards [v. Arizona, 451 U. S. 477 (1981),] was decided. Yet the majority offers no reasons for its conclusion that finality should be the decisive factor. When a conviction is overturned on direct appeal on the basis of an Edwards violation, the remedy offered the defendant is a new trial at which any inculpatory statements obtained in violation of Edwards will be excluded. It is not clear to me why the majority finds such a burdensome remedy more acceptable when it is imposed on the State on direct review than when it is the result of a collateral attack. The disruption attendant upon the remedy does not vary depending on whether it is imposed on direct review or habeas; accordingly, if the remedy must be granted to defendants on direct appeal, there is no strong reason to deny it to prisoners attacking their convictions collaterally. Conversely, if it serves no worthwhile purpose to grant the remedy to a defendant whose conviction was final before Edwards, it is hard to see why the remedy should be available on direct review.” Id., at 64-65 (footnote omitted).

       “The distinction between direct review and collateral attack may bear some relationship to the recency of the crime; thus, to the extent that the difficulties presented by a new trial may be more severe when the underlying offense is more remote in time, it may be that new trials would tend to be somewhat more burdensome in habeas eases than in cases involving reversals on direct appeal. However, this relationship is by no means direct, for the speed with which cases progress through the criminal justice system may vary widely. Thus, if the Court is truly concerned with treating like cases alike, it could accomplish its purpose far more precisely by applying new constitutional rules only to conduct of appropriately recent vintage. I assume, however, that no one would argue for an explicit ‘5-year-rule,’ for example.

      “Of course, it will be less burdensome in the aggregate to apply [Batson] only to cases pending when [Batson] was decided than to give it full retroactive effect; by the same token, it would be less burdensome to apply [Batson] retroactively to all cases involving defendants whose last names begin with the letter ‘S’ than to make the decision fully retroactive. The majority obviously would not countenance the latter course, but its failure to identify any truly relevant distinction between cases on direct appeal and cases raising collateral challenges makes the rule it announces equally indefensible.” Shea v. Louisiana, 470 U. S., at 64, n. 1 (White, J., dissenting).


source: Caselaw Access Project

author: Justice Powell Justice O’Connor,

license: Public Domain

text:
    324 LIQUOR CORP., dba YORKSHIRE WINE & SPIRITS v. DUFFY et al.
    No. 84-2022.
    Argued November 3, 1986
    Decided January 13, 1987

      Powell, J., delivered the opinion of the Court, in which BRENNAN, White, Marshall, Blackmun, Stevens, and Scalia, JJ., joined. O’CONNOR, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 352.

      Bertram M. Kantor argued the cause for appellant. With him on the briefs were Michael H. Byoioitz and Seymour Howard.

      Deputy Assistant Attorney General Cannon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Ginsburg, Deputy Solicitor General Cohen, Harriet S. Shapiro, Catherine G. O’Sullivan, and Andrea Limmer.

      Christopher Keith Hall, Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Robert Abrams, Attorney General, 0. Peter Sherwood, Solicitor General, and Richard G. Liskov, Lloyd Constantine, and August L. Fietkau, Assistant Attorneys General.

      Briefs of amici curiae urging affirmance were filed for Peerless Importers, Inc., et al. by Lawrence Kill, Steven M. Pesner, Anthony A. Dean, Ralph S. Spritzer, Michael Whiteman, and Jonathan P. Nye; and for Wine, Liquor & Distillery Workers Union Local 1, AFL-CIO, et al. by Victor Feingold.

        Martin P. Mehler filed a brief for Metropolitan Package Store Association, Inc., et al. as amid curiae.

   Justice Powell

delivered the opinion of the Court.

The State of New York requires retailers to charge at least 112 percent of the “posted” wholesale price for liquor, but permits wholesalers to sell to retailers at less than the “posted” price. The question presented is whether this pricing system is valid under either the state-action exemption from the antitrust laws or the Twenty-first Amendment.

hH

<C

Wholesalers of liquor in the State of New York must file, or “post,” monthly price schedules with the State Liquor Authority (SLA). N. Y. Aleo. Bev. Cont. Law (ABC Law) §101-b (McKinney 1970 and Supp. 1986). The schedules must report, “with respect to each item,” “the bottle and case price to retailers.” § 101-b(3)(b). The ABC Law itself does not require that the posted case price of an item bear any relation to its posted bottle price. The SLA, however, has promulgated a rule stating that for cases containing 48 or fewer bottles, the posted bottle price multiplied by the number of bottles in a case must exceed the posted case price by a “breakage” surcharge of $1.92. SLA Rule 16.4(e), 9 NYCRR § 65.4(e) (1980).

Retailers of liquor may not sell below “cost.” ABC Law, § 101-bb(2). The statute defines “cost” as “the price of such item of liquor to the retailer plus twelve percentum of such price.” § 101-bb(2)(b). “Price,” in turn, is defined as the posted bottle price in effect at the time the retailer sells or offers to sell the item. Ibid. Although the statute defines retail cost in terms of the wholesaler’s posted bottle price, retailers generally purchase liquor by the case. The SLA expressly has authorized wholesalers to reduce, or “post off,” the case price of an item without reducing the posted bottle price of the item. SLA Bulletin 471 (June 29, 1973). By reducing the case price without reducing the bottle price, wholesalers can compel retailers to charge more than 112 percent of the actual wholesale cost. Similarly, because § 101-bb(2)(b) defines “cost!’ in terms of the posted bottle price in effect when the retailer sells or offers to sell the item, wholesalers can sell retailers large quantities in a month when prices are low and then require the retailers to sell at an abnormally high markup by raising the bottle price in succeeding months. The New York retail pricing system thus permits wholesalers to set retail prices, and retail markups, without regard to actual retail costs. New York wholesalers advertise in trade publications that their “post offs” will guarantee retailers large markups, sometimes in excess of 30 percent. App. 32-35. Wholesalers also advertise that buying large quantities while wholesale prices are low will result in extra retail profits after wholesale prices are raised. App. to Juris. Statement 101 A. The effect of this complex of statutory provisions and regulations is to permit wholesalers to maintain retail prices at artificially high levels.

B

Appellant 324 Liquor Corporation sold two bottles of liquor to SLA investigators in June 1981 for less than 112 percent of the posted bottle price. Because the wholesalers had “posted off” their June 1981 case prices without reducing the posted bottle prices, appellant’s retail prices represented an 18 percent markup over its actual wholesale cost. As a result of this violation, appellant’s license was suspended for 10 days and it forfeited a $1,000 bond. Appellant sought relief from the penalties on the ground that § 101-bb violates § 1 of the Sherman Act, 15 U. S. C. § 1. A New York Supreme Court denied the petition. 323 Liquor Corp. v. McLaughlin, 119 Misc. 2d 746, 464 N. Y. S. 2d 355 (1983). The Appellate Division reversed. 324 Liquor Corp. v. McLaughlin, 102 App. Div. 2d 607, 478 N. Y. S. 2d 615 (1984). The New York Court of Appeals upheld the validity of § 101-bb and reinstated the penalties. J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, 64 N. Y. 2d 504, 479 N. E. 2d 779 (1985). The Court of Appeals held that § 101-bb is not immune under the state-action doctrine of Parker v. Brown, 317 U. S. 341 (1943), because the State does not actively supervise the resale price maintenance system. The court nevertheless concluded that the statute is a proper exercise of powers reserved to the State by the Twenty-first Amendment, because “the State interest in protecting retailers which underlies [the statute] is of sufficient magnitude to override the Federal policy expressed in the antitrust laws.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 522, 479 N. E. 2d, at 789. We noted probable jurisdiction, 475 U. S. 1080 (1986), and we now reverse.

t — i

In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), we invalidated a California statute requiring all producers, wholesalers, and rectifiers of wine to file fair trade contracts or price schedules with the State. Midcal establishes the framework for our analysis of New York’s liquor pricing system.

A

The “threshold question,” in this case as in Midcal, is whether the State’s pricing system is inconsistent with the antitrust laws. Id., at 102. Section 101-bb imposes a regime of resale price maintenance on all New York liquor retailers. Resale price maintenance has been a per se violation of § 1 of the Sherman Act “since the early years of national antitrust enforcement.” Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752, 761 (1984). See Dr. Miles Medical Co. v. John D. Park & Sons Co,, 220 U. S. 373, 404-409 (1911). Our recent decisions recognize the possibility that a vertical restraint imposed by a single manufacturer or wholesaler may stimulate interbrand competition even as . it reduces intrabrand competition. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 51-52 (1977). Accordingly, we have held that concerted nonprice restrictions imposed by a single manufacturer are to be judged under the rule of reason. Id., at 59. We also have held that a single manufacturer may announce resale prices in advance and refuse to deal with those who fail to comply. Monsanto Co. v. Spray-Rite Service Corp., supra, at 761; United States v. Colgate & Co., 250 U. S. 300, 307 (1919). Neither of these qualifications to the per se rule applies in this case. Section 101-bb directly restricts retail prices, and retailers are subject to penalties for failure to adhere to the resale price schedules. The New York statute, moreover, applies to all wholesalers and retailers of liquor. We have noted that industrywide resale price maintenance also may facilitate cartelization. Continental T. V., Inc. v. GTE Sylvania Inc., supra, at 51, n. 18. Mandatory industrywide resale price fixing is virtually certain to reduce interbrand competition as well as intrabrand competition, because it prevents manufacturers and wholesalers from allowing or requiring retail price competition. The New York statute specifically forbids retailers from reducing the minimum prices set by wholesalers.

The antitrust violation in this case is essentially similar to the violation in Midcal. It is true that the wholesalers in Midcal were required to adhere to a single fair trade contract or price schedule for each geographical area. 445 U. S., at 99-100. Midcal therefore involved horizontal as well as vertical price fixing. Although the horizontal restraint in Midcal may have provided an additional reason for invalidating the statute, our decision in Midcal rested on the “vertical control” of wine producers, who held “the power to prevent price competition by dictating the prices charged by wholesalers.” Id., at 103. As we explained in Rice v. Norman Williams Co., 458 U. S. 654 (1982), the California statute was invalidated because “it mandated resale price maintenance, an activity that has long been regarded as a per se violation of the Sherman Act.” Id., at 659-660 (emphasis in original; footnote omitted). We hold that ABC Law § 101-bb is inconsistent with § 1 of the Sherman Act.

B

In Parker v. Brown, 317 U. S. 341 (1943), the Court held that the Sherman Act does not apply “to the anticompetitive conduct of a State acting through its legislature.” Hallie v. Eau Claire, 471 U. S. 34, 38 (1985). Parker v. Brown rests on principles of federalism and state sovereignty. Under those principles, “an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” Parker v. Brown, 317 U. S., at 351. At the same time, “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” Ibid. Our decisions have established a two-part test for determining immunity under Parker v. Brown. “First, the challenged restraint must be ‘one clearly articulated and affirmatively expressed as state policy’; second, the policy must be ‘actively supervised’ by the State itself.” California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., supra, at 105 (quoting Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 410 (1978) (plurality opinion)). New York’s liquor-pricing system meets the first requirement. The state legislature clearly has adopted a policy of resale price maintenance. Just as clearly, however, New York’s liquor-pricing system is not actively supervised by the State. As in Midcal, the State “simply authorizes price setting and enforces the prices established by private parties.” 445 U. S., at 105. New York “neither establishes prices nor reviews the reasonableness of the price schedules.” Ibid. New York “does not monitor market conditions or engage in any ‘pointed reexamination’ of the program.” Id., at 106 (quoting Bates v. State Bar of Arizona, 433 U. S. 350, 362 (1977)). Each wholesaler sets its own “posted” prices; the State does not control month-to-month variations in posted prices. Nor does the State supervise the wholesaler’s decision to “post off,” the amount of the “post off,” the corresponding decrease, if any, in the bottle price, or the frequency with which a wholesaler posts off. The State has displaced competition among liquor retailers without substituting an adequate system of regulation. “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” 445 U. S., at 106.

y — i ) — i i — t

Section 2 of the Twenty-first Amendment reserves to the States the power to regulate, or prohibit entirely, the transportation or importation of intoxicating liquor within their borders. Section 2 “grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Mid-cal, 445 U. S., at 110. The States’ Twenty-first Amendment powers, though broad, are circumscribed by other provisions of the Constitution. See Larkin v. Grendel’s Den, Inc., 459 U. S. 116, 122, n. 5 (1982) (Establishment Clause); Craig v. Boren, 429 U. S. 190, 204-209 (1976) (Equal Protection Clause); Wisconsin v. Constantineau, 400 U. S. 433, 436 (1971) (procedural due process); Department of Revenue v. James Beam Co., 377 U. S. 341, 345-346 (1964) (Export-Import Clause). Although §2 directly qualifies the federal commerce power, the Court has rejected the view “that the Twenty-first Amendment has somehow operated to ‘repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned.” Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 331-332 (1964). Instead, the Court has engaged in a “pragmatic effort to harmonize state and federal powers.” Midcal, supra, at 109. The question in each case is “whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies.” Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 714 (1984).

A

The New York Court of Appeals concluded that § 101-bb “was expressly designed to preserve competition in New York’s retail liquor industry by stabilizing the retail market and protecting the economic position of small liquor retailers.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, 64 N. Y. 2d, at 520, 479 N. E. 2d, at 788. The Court of Appeals traced the recent history of the State’s regulation of retail liquor prices. In early 1964, the Moreland Commission completed an extensive study of the state laws governing the sale and distribution of alcoholic beverages. New York State Moreland Comm’n on the Alcoholic Beverage Control Law, Report and Recommendations Nos. 1-3 (1964). “The Commission’s major findings were that New York consumers suffered from serious price discrimination when compared to liquor consumers in other States and that a severe lack of competition existed in the New York retail market.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 519, 479 N. E. 2d, at 787. The New York Legislature responded in 1964 by enacting sweeping changes in the ABC Law primarily intended to promote price competition among liquor retailers. Ibid. The 1964 version of § 101-bb prohibited retail sales below cost and defined cost as the bottle price in effect when the retailer sells or offers to sell the item. ABC Law § 101-bb (McKinney 1970). During the years between 1964 and 1971, the number of liquor stores in New York declined. The State Senate Excise Committee investigated the decline and concluded that “the mass of small retailers are unable to compete with the large volume outlets that have emerged.” New York State Legislature, Senate Excise Committee, Final Report 29-30 (Mar. 5, 1971). In 1971 the legislature enacted the current version of ABC Law § 101-bb to “protec[t] the economic position of small liquor retailers.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 520, 479 N. E. 2d, at 788.

We agree with the New York Court of Appeals that the purpose of the 12-percent minimum markup is to protect small retailers. We have noted that the 12-percent markup is imposed on the “posted bottle price,” a price that may differ from the actual wholesale price paid by the retailer. See supra, at 339-340. There is no indication in the statute or its legislative history, however, that the purpose of defining cost as “posted bottle price” was to protect small retailers. The New York Legislature first defined cost in terms of posted bottle price in the 1964 amendments to the ABC Law. The purpose of those amendments, as the New York Court of Appeals found, was to increase price competition among liquor retailers. The 1971 amendments simply retained bottle price as the basis of the statutory definition of cost and added 12 percent to reflect the retailer’s overhead and operating expenses. Indeed, the legislative Committee that considered the 1971 amendments concluded that the bottle price definition of cost put small retailers at a slight disadvantage. The Committee noted that “[t]he present definition of ‘cost’ [as] scheduled bottle cost to the retailer does afford some margin of profit to large retailers in particular, and, to a lesser extent, to all retailers who can afford to buy by the case.” New York State Senate Excise Committee, Final Report, supra, at 8-9. The Committee suggested that “consideration be accorded to . . . [r]evision or elimination of. . . ‘post offs’ practices that appear to afford discriminatory advantages to possession of great purchasing power.” Id., at 41. The Committee did not recommend an amendment to this effect because it considered the matter “outside the scope of the directive given to this Committee.” Ibid.

In Midcal, we found nothing in the record to suggest that California’s wine-pricing system actually helped sustain small retailers. 445 U. S., at 113. Similarly, in this case the New York Court of Appeals cited no legislative or other findings that either the minimum markup requirement or the “bottle price” definition of cost has been effective in preserving small retail establishments, and made no findings of its own. Our Midcal opinion cites evidence that States with “fair trade laws” not unlike ABC Law § 101-bb actually had higher rates of firm failure, and slower rates of growth of small retail stores, than free trade States in the years between 1956 and 1972. 445 U. S., at 113 (citing S. Rep. No. 94-466, p. 3 (1975)). The only relevant evidence in the record indicates that the number of retail liquor outlets in New York continued to decline between 1970 and 1979. App. to Juris Statement 99A. We are unwilling to assume on the basis of this record that § 101-bb has the effect of protecting small retailers.

In this case, as in Midcal, the State’s unsubstantiated interest in protecting small retailers “simply [is] not of the same stature as the goals of the Sherman Act.” 445 U. S., at 114. New York’s resale price maintenance system directly conflicts with the “familiar and substantial” federal interest in enforcement of the antitrust laws. Id., at 110. “Antitrust laws in general, and the Sherman Act in particular . . . are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.” United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972). We therefore conclude that the State’s asserted interest in protecting small retailers does not suffice to afford immunity from the Sherman Act.

B

Appellees finally argue that § 101-bb furthers the State’s interest in promoting temperance. Brief for Appellees 39-44. One would hardly suggest that the New York Legislature set out to promote temperance by increasing the number of retail outlets for liquor. Rather, appellees argue that New York’s pricing system has the effect of raising retail prices, and that higher prices decrease consumption of liquor. The New York Court of Appeals did not find that the statute was intended to promote temperance, or that it does so. On the contrary, that court cited the conclusion of the Moreland Commission that higher prices do not decrease consumption of liquor. J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, 64 N. Y. 2d, at 521, n. 2, 479 N. E. 2d, at 788, n. 2 (citing Moreland Comm’n Report No. 1, at 3, 17). Of course, we are not bound by findings of the Court of Appeals that undercut powers reserved by the Twenty-first Amendment. Midcal, supra, at 111; Hooven & Allison Co. v. Evatt, 324 U. S. 652, 659 (1945). We nevertheless accord “great weight to the views of the State’s highest court” on state-law matters, Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100 (1938), and customarily accept the factual findings of state courts in the absence of exceptional circumstances. Midcal, supra, at 111-112. Our review of the record discloses no such exceptional circumstances in this case. We therefore do not reach the question whether New York’s liquor-pricing system could be upheld as an exercise of the State’s power to promote temperance.

I — I <1

We conclude that the Twenty-first Amendment provides no immunity for New York’s authorization of private, unsupervised price fixing by liquor wholesalers. We therefore reverse the judgment of the New York Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

with whom The Chief Justice joins, dissenting.

Immediately after the ratification of the Twenty-first Amendment, this Court recognized that the broad language of §2 of the Amendment conferred plenary power on the States to regulate the liquor trade within their boundaries. Ziffrin, Inc. v. Reeves, 308 U. S. 132 (1939); Finch & Co. v. McKittrick, 305 U. S. 395 (1939); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U. S. 391 (1939); State Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). As Justice Stevens recently observed, however, the Court has, over the years, so “completely distorted the Twenty-first Amendment” that “[i]t now has a barely discernible effect in Commerce Clause cases.” Newport v. Iacobucci, ante, at 98 (dissenting). Because I believe that the Twenty-first Amendment clearly authorized the State of New York to regulate the liquor trade within its borders free of federal interference, I dissent from Part III of the Court’s opinion, and would affirm the judgment of the New York Court of Appeals.

I

In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324 (1964), this Court took a first step toward eviscerating the authority of States to regulate the commerce of liquor. The Court held that the State of New York could not regulate the importation of liquor into that State when the liquor was sold in duty-free shops at the Kennedy Airport. The basis for this decision was the fact that the United States Customs Service already supervised the liquor sold at the airport. Justice Black, who as a Senator was present at the creation of the Twenty-first Amendment, wrote a thoughtful and powerful dissent. After reviewing the legislative history of the Twenty-first Amendment, Justice Black concluded that the Senators who approved the Twenty-first Amendment thought they were returning absolute control over the liquor industry to the States, and “were seeing to it that the Federal Government could not interfere with or restrict the State’s exercise of the power conferred by the Amendment.” Id., at 338 (dissenting). Because the Court has seen fit in recent years to dismiss this legislative history without analysis as “obscure,” Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 274 (1984); ante, at 346-347, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue.

Although neither the House of Representives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2, but see 76 Cong. Rec. 2776 (1933) (statement of Rep. Lea of California that the section was “the extreme of State rights” because it obligated the Federal Government to assist the enforcement of state laws “however unwise or improvident”), the Senate considered the section in great detail. Those Senate discussions clearly demonstrate an intent to confer on States complete and exclusive control over the commerce of liquor.

When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a §3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor. It provided that “Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.” Id., at 4138. As Justice Black observed, the proposal “to leave even this remnant of federal control over liquor traffic gave rise to the only real controversy over the language of the proposed Amendment.” 377 U. S., at 337. Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in §3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had “surrendered control over and regulation of interstate commerce.” 76 Cong. Rec. 4141 (1933). He viewed §2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 “restored] to the States, in effect, the right to regulate commerce respecting a single commodity— namely, intoxicating liquor.” Ibid. In his view, the grant of authority to Congress in § 3 undercut the import of § 2:

“Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment. ” Id., at 4143.

Senator Wagner was an especially vigorous opponent of the proposed § 3. In his view, it failed to “correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed.” Id., at 4144. In Senator Wagner’s view, the danger of § 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade:

“If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold. . . .
“It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture. . . . If that is to be the history of the proposed amendment— and there is every reason to expect it — then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3.” Id., at 4147.

Other Senators also expressed the fear that “any grant of power to the Federal Government, even a seemingly narrow one, could be used to whittle away the exclusive control over liquor traffic given the States by Section 2.” Hostetter, 377 U. S., at 337 (Black, J., dissenting); see 76 Cong. Rec. 4143 (1933) (Sen. Blaine); id., at 4177-4178 (Sen. Black). Still others emphasized the plenary power granted the States by § 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: “The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter.” Id., at 4219. In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that “it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported.” Id., at 4225. Thus, upon the motion of Senator Robinson, the Senate voted to strike § 3 from the proposed Amendment. Id., at 4179.

By emphasizing the importance of the plenary powers granted the States in § 2, and more importantly by removing even the limited grant of authority to Congress contained in § 3, the Senate made manifest its intent to prevent any federal interference with state attempts to regulate the liquor trade. It is difficult to believe that the Senators would have anticipated that a federal statute enacted under the commerce power could ever override the State’s power to regulate the liquor trade.

II

The history of the Amendment strongly supports Justice Black’s view that the Twenty-first Amendment was intended to return absolute control of the liquor trade to the States, and that the Federal Government could not use its Commerce Clause powers to interfere in any manner with the States’ exercise of the power conferred by the Amendment. Given its desire to confer broad freedom on the States to regulate commerce in intoxicating liquors without federal interference, Congress certainly intended that the States have the power to enact economic regulations governing the pricing of liquor free of federal antitrust policy.

The behavior of the States upon the ratification of the Twenty-first Amendment also supports this view. Contemporaneously with the enactment of the Twenty-first Amendment, a report sponsored by John D. Rockefeller, Jr., recommended that those States that could not muster the political support for state monopolies in the liquor industry should adopt the equivalent solution of price-control laws designed to keep the price of liquor at high levels. R. Fosdick & A. Scott, Toward Liquor Control 52 (1933). According to this report, the “profit motive is the core of the problem.” Id., at 61. This profit motive encouraged low prices that stimulated liquor consumption. Id., at 149. Retail prices had a “direct bearing on the amount of consumption,” id., at 81, and thus a State could use price-fixing powers “as one of its most effective instruments of control.” Id., at 82. The ideas expressed by the Rockefeller Report “were the dominant ideas which took flesh in the post-repeal legislation of the states.” Dunsford, State Monopoly and Price-Fixing in Retail Liquor Distribution, 1962 Wis. L. Rev. 454, 464. It is not surprising, therefore, that even before the enactment of the Miller-Tydings Fair Trade Act of 1937, 50 Stat. 693, States exercised their Twenty-first Amendment powers to adopt “bold and drastic experiments in price control,” including price posting, regulation by private associations, and mandatory resale price maintenance contracts. De Ganahl, Trade Practice and Price Control in the Alcoholic Beverage Industry, 7 Law & Contemp. Prob. 665, 680 (1940). Thus, the States that ratified the Twenty-first Amendment immediately exercised the authority granted them by § 2 of that Amendment to enact the very type of statute that this Court strikes down today.

With the clear legislative intent to free state regulation of liquor from federal interference, and the immediate enactment of price-control laws by the ratifying States, the better view of the proper resolution of any apparent conflict between the Sherman Act and a state regulation of the liquor trade was expressed by Justice Frankfurter in United States v. Frankfort Distilleries, Inc., 324 U. S. 293, 300-302 (1945) (concurring). In Justice Frankfurter’s view, the Twenty-first Amendment accorded. States the power to control the liquor traffic “according to their notions of policy freed from the restrictions upon state power which the Commerce Clause implies as to ordinary articles of commerce.” Id., at 300. Because Congress enacted the Sherman Act pursuant to its authority in the Commerce Clause, the Sherman Act must yield to state power drawn from the Twenty-first Amendment. Id., at 301. Thus, Justice Frankfurter concluded:

“If a State for its own sufficient reasons deems it a desirable policy to standardize the price of liquor within its borders either by a direct price-fixing statute or by permissive sanction of such price-fixing in order to discourage the temptations of cheap liquor due to cutthroat competition, the Twenty-first Amendment gives it that power and the Commerce Clause does not gainsay it. Such state policy can not offend the Sherman Law even though distillers or middlemen agree with local dealers to respect this policy.” Ibid.

Justice Frankfurter believed that in the absence of a conflict between the state regulatory scheme and the federal antitrust laws, federal antitrust policy was fully applicable even to the intrastate liquor trade. In Frankfort Distilleries itself, the State had not authorized the anticompetitive conduct of the respondents. Once a State has exercised its § 2 power, however, “the Sherman Law could not override such exercise of state power.” Id., at 302.

Justice Frankfurter was not alone in this view. In repealing the Miller-Tydings Act — which had authorized States to enact fair trade laws — the Senate believed that the States could continue to impose retail price maintenance on liquor retailers. The Report from the Senate Judiciary Committee on the proposal to repeal the Miller-Tydings Act explicitly assured the Senate that the repeal would not change the power of States to impose retail price maintenance on liquor retailers pursuant to the authority granted the States by the Twenty-first Amendment:

“Liquor will not be affected by the repeal of the fair trade laws in the same manner as other products because the Twenty-First Amendment to the Constitution gives the States broad powers over the sale of alcoholic beverages. Thus, while repeal of the fair trade laws generally will prohibit manufacturers from enforcing resale prices, alcohol manufacturers may do such in States which pass price fixing statutes pursuant to the Twenty-First Amendment.” S. Rep. No. 94-466, p. 2 (1975).

The history and purpose of the Twenty-first Amendment are a compelling indication of an intent to confer on States the power to regulate trade in liquor. Despite this clear intent, the Court in recent years has used a balancing test to resolve conflicts between federal statutes and state laws enacted pursuant to § 2. In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), and once again today, the Court ventured still further from the intent of the Twenty-first Amendment by adopting an unprecedented test that focuses on the wisdom of the State’s exercise of its § 2 powers. For the Court today does not invalidate the ABC Law because it involves an exercise of power outside the scope of the Twenty-first Amendment — indeed, the Court could not do so given the long history of the use of price controls by state liquor authorities. Instead, in a manner reminiscent of the long-repudiated Lochner v. New York, 198 U. S. 45 (1905), the Court strikes down the ABC Law because it concludes that the law was not “effective” in preserving small retail establishments or in decreasing alcohol consumption. The proper inquiry, however, is not whether the State of New York chose wisely in enacting a retail price maintenance law, nor whether the State of New York’s motivation in doing so was linked to a “central purpos[e]” of the Twenty-first Amendment. The sole “question is whether the provision in this case is an exercise of a power expressly conferred upon the States by the Constitution.” Bacchus Imports, Ltd. v. Dias, 468 U. S., at 287 (Stevens, J., dissenting).

Because the State of New York was plainly exercising its § 2 power to regulate liquor trade, I respectfully dissent.

       Section 101 — b(3)(b) provides, in part:
      “No brand of liquor or wine shall be sold to or purchased by a retailer unless a schedule, as provided by this section, is filed with the liquor authority, and is then in effect. Such schedule shall be in writing duly verified, and filed in the number of copies and form as required by the authority, and shall contain, with respect to each item, the exact brand or trade name, capacity of package, nature of contents, age and proof where stated on the label, the number of bottles contained in each case, the bottle and case price to retailers, the net bottle and case price paid by the seller, which prices, in each instance, shall be individual for each item and not in ‘combination’ with any other item, the discounts for quantity, if any, and the discounts for time of payment, if any. Such brand of liquor or wine shall not be sold to retailers except at the price and discounts then in effect unless prior written permission of the authority is granted for good cause shown and for reasons not inconsistent with the purpose of this chapter. Such schedule shall be filed by each manufacturer selling such brand to retailers and by each wholesaler selling such brand to retailers.”

       Rule 16.4(e), 9 NYCRR § 65.4(e) (1980), provides:
      “For each item of liquor listed in the schedule of liquor prices to retailers there shall be posted a bottle and a case price. The bottle price multiplied by number of containers in the case must exceed the case price by approximately $1.92 for any case of 48 or fewer containers. The figure is to be reached by adding $1.92 to the case price, dividing by the number of containers in the case, and rounding to the nearest cent. Where more than 48 containers are packed in a case, bottle price shall be computed by dividing the case price by the number of containers in the case, rounding to the nearest cent, and adding one cent. Variations will not be permitted without approval of the authority.”

       Section 101-bb(2) provides, in part:

        “No licensee authorized to sell liquor at retail for off-premises consumption shall sell, offer to sell, solicit an order for or advertise any item of liquor at a price which is less than cost. As used in this section, the term:

      “(b) 'cost' shall mean the price of such item of liquor to the retailer plus twelve percentum of such price, which is declared as a matter of legislative determination to represent the average minimum overhead necessarily incurred in connection with the sale by the retailer of such item of liquor. As used in this paragraph (b) the term “price” shall mean the bottle price to retailers, before any discounts, contained in the applicable schedule filed with the liquor authority pursuant to section one hundred one-b of this chapter by a manufacturer or wholesaler from whom the retailer purchases liquor and which is in effect at the time the retailer sells or offers to sell such item of liquor; except, that where no applicable schedule is in effect the bottle price of the item of liquor shall be computed as the appropriate fraction of the case price of such item, before any discounts, most recently invoiced to the retailer.”

       Bulletin 471 provides, in part:
      “Case prices may be posted off for any given month, or months, without an accompanying reduction in bottle prices. The wholesaler is given these choices during the period of a post-off:
      “1. May elect not to reduce the bottle price, in which case the legal bottle price will be the base for the 12% retail mark-up.
      “2. May reduce the bottle price to conform with the post-off case price, consistent with Rule 16.4(e), in which ease the reduced bottle price will be the base for the 12% mark-up.
      “3. May adopt a bottle price any where between the extremes authorized under ‘1’ and ‘2’ above, in which case the reduced bottle price will be the base for the 12% mark-up.

        “Wholesalers of liquor will note that pursuant to these changes no control is placed on the number of consecutive months during which post-offs may be scheduled.”

       The Court of Appeals suggested that the liquor-pricing system prevents “temporary price reductions . . . threatening to drive small retailers out of business and consolidating control of the market in the hands of a relatively few mass distributors who could then dictate prices to the ultimate injury of consumers . . . .” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, 64 N. Y. 2d 504, 520, 479 N. E. 2d 779, 788 (1985). In Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 (1986), we recognized that predatory pricing schemes are “rarely tried, and even more rarely successful.” Id., at 589. In this case, the possibility of success is practically nonexistent, because liquor retailers are limited to a single outlet. ABC Law §63.5 (McKinney 1970). In any event, § 101-bb forbids not only predatory pricing, but all price competition among retailers.

       A simple “minimum markup” statute requiring retailers to charge 112 percent of their actual wholesale cost may satisfy the “active supervision” requirement, and so be exempt from the antitrust laws under Parker v. Brown, 317 U. S. 341 (1943). See Morgan v. Division of Liquor Control, Conn. Dept. of Business Regulation, 664 F. 2d 353 (CA21981) (upholding a simple markup statute). Section 101-bb, however, is not a simple minimum markup statute because it imposes a markup on the “posted bottle price,” a price that may greatly exceed what the retailer actually paid for the liquor. As we have explained, supra, at 339-340, Bulletin 471 permits wholesalers to reduce the case price — the price actually paid by most retailers — without reducing the bottle price. The New York Court of Appeals expressly held that Bulletin 471 “is consistent with Alcoholic Beverage Control Law § 101-b(3) which does not mandate any price ratio between scheduled case and bottle prices.” J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 523, 479 N. E. 2d, at 790. We may not “construe a state statute contrary to the construction given it by the highest court of a State.” O’Brien v. Skinner, 414 U. S. 524, 531 (1974). Appellees nevertheless argue that invalidation of Bulletin 471 does not require invalidation of § 101-bb. Appellees contend that § 101-bb does not prevent the SLA from establishing a relationship between case price and bottle price; indeed, Rule 16.4(e) establishes such a relationship. Brief for Appellees 24-25, n. 37. Invalidation of Bulletin 471 alone, however, would not prevent wholesalers from selling large quantities at low prices in one month, and then requiring retailers to charge abnormally high markups by raising bottle prices in subsequent months. See supra, at 340. We cannot accept appellees’ suggestion that such unsupervised price fixing should be tolerated as a reasonable accounting method or as a hedge against inflation. See App. to Juris. Statement 101A (advertising a guaranteed 31.3 percent markup on liquor purchased in August 1984 and sold in September 1984). We thus have no occasion to consider whether a simple minimum markup statute would be entitled to antitrust immunity under Parker v. Brown.

      Some States completely control the distribution of liquor within their boundaries. E. g., Va. Code §§4-15, 4-28 (1983). Such comprehensive regulation is immune under Parker v. Broion because the State substitutes its own power for “unfettered business freedom.” See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U. S. 96, 109 (1978).

       In a concurring opinion, Judge Jasen argued that the State actively supervises the liquor-pricing system. J. A. J. Liquor Store, Inc. v. New York State Liquor Authority, supra, at 526-529, 479 N. E. 2d, at 792-794. Judge Jasen noted that the SLA can respond to market conditions by permitting individual wholesalers to depart from their posted prices, ABC Law § 101 — b(3)(b), and by permitting individual retailers to sell below the statutory definition of “cost,” § 101-bb(3), “for good cause shown.” Bulletin 471 itself was issued by the SLA in response to market conditions. Moreover, the state legislature frequently considers proposals to alter the liquor-pricing system. Neither the “monitoring” by the SLA, nor the periodic reexaminations by the state legislature, exerts any significant control over retail liquor prices or markups. Thus, the State’s involvement does not satisfy the second requirement of Midcal.

       The same considerations lead us to reject appellees’ contention that there is no “contract, combination ... , or conspiracy, in restraint of trade.” 15 U. S. C. § 1. Where “private actors are . . . granted ‘a degree of private regulatory power’ . . . the regulatory scheme may be attacked under § 1” as a “hybrid” restraint. Fisher v. Berkeley, 475 U. S. 260, 268 (1986) (quoting Rice v. Norman Williams Co., 458 U. S. 654, 666, n. 1 (1982) (Stevens, J., concurring in judgment)). See Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384 (1961). Our decisions reflect the principle that the federal antitrust laws pre-empt state laws authorizing or compelling private parties to engage in anticompetitive behavior. See also Northern Securities Co. v. United States, 193 U. S. 197, 346-346 (1904) (plurality opinion); 1 P. Areeda & D. Turner, Antitrust Law ¶209, pp. 60-62 (1978). That principle squarely governs this case.

       Section 2 of the Twenty-first Amendment provides: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

       The dissenting opinion concedes that “neither the House of Representatives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2.” Post, at 353. It nevertheless maintains that the Senate debates “clearly demonstrate an intent to confer on States complete and exclusive control over the commerce of liquor.” Post, at 354. We find no such clear demonstration of congressional intent. It is true that Senator Blaine, the Senate sponsor of the Amendment, at one point stated that the purpose of § 2 was “to restore to the States . . . absolute control in effect over interstate commerce affecting intoxicating liquors . . . 76 Cong. Rec. 4143 (1933). At another point, however, Senator Blaine appeared to advance a narrower interpretation: “So, to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line.” Id., at 4141.
      The dissent also maintains that the behavior of the States following ratification supports the view that States have power to enact laws governing the pricing of liquor free of the strictures of federal antitrust policy. One commentator is quoted as saying that the States adopted “ ‘bold and drastic experiments’” in price control. Post, at 357, quoting De Ganahl, Trade Practice and Price Control in the Alcoholic Beverage Industry, 7 Law & Contemp. Prob. 665, 680 (1940). In the next paragraph, however, this writer states that “[b]eeause the experiments came at a time when neither the fair-trade law nor the constitutional law on liquor was settled . . . there is uncertainty as to the validity of much of this legislation.” Ibid. When the Twenty-first Amendment was adopted, it was far from clear that the federal commerce power extended to intrastate retail sales of liquor. See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 542-548 (1935) (holding that the commerce power does not extend to intrastate sales of poultry, even when the poultry has been shipped across state lines). The Miller-Tydings Fair Trade Act of 1937, 50 Stat. 693, moreover, permitted States to authorize agreements prescribing prices for the resale of specified commodities, including liquor. Even after the passage of the Miller-Tydings Act, price control laws were not as universally popular as the dissent implies. In 1940, for example, only 18 of the 45 “wet” States had price stabilization provisions written into their alcoholic beverage statutes, De Ganahl, supra, at 680, while in 17 States the State itself monopolized sales of liquor, Shipman, State Administrative Machinery for Liquor Control, 7 Law & Contemp. Prob. 600, 601, n. 5 (1940).

       There is no indication that the purpose of Bulletin 471 is to protect small retailers. The Bulletin states that its purpose is to prevent “a situation during post-off periods which resulted in what became known as a ‘two bottle’ price.” App. to Juris. Statement 71A. Although there is no precise explanation of “two bottle pricing” in the record, the caption of Bulletin 471 is “Unlawful Discrimination and Price Scheduling — Bottle Price During Post-Down.” Ibid. This suggests that the SLA was concerned with ensuring that wholesalers charge the same price to all retailers, and not with the relationship between the retailer’s actual cost and the required markup.

       We have no occasion in this case to consider whether the State’s interest in protecting small retailers ever could prevail against the federal interest in enforcement of the antitrust laws.

       It is far from certain that the New York Legislature intended to promote temperance, or that the retail price maintenance system actually decreases consumption. Section 101-bb, like other sections of the ABC Law, recites that it is enacted “for the purpose of fostering and promoting temperance.” ABC Law § 101-bb(1) (McKinney 1970). This statement is not supported by specific findings, or by evidence in the record. In
        Midcal, we accepted the California Supreme Court’s rejection of a similar declaration of legislative purpose. 445 U. S., at 112-114 (discussing Rice v. Alcoholic Beverage Control Appeals Bd., 21 Cal. 3d 431, 457-459, 579 P. 2d 476, 493-494 (1978)). The legislative Report accompanying § 101-bb does not suggest that the amendment was aimed at decreasing consumption. Rather, the Report focuses on the need to protect small retailers. New York State Legislature, Senate Excise Committee, Final Report 30, 37 (Mar. 1971). The Report does express concern over the increase in liquor consumption during the years between 1964 and 1971. Id., at 16. But the Report recognizes the Moreland Commission’s finding that higher prices do not reduce consumption, and states that “because of the multiplicity of factors involved and lack of data on specifics, the Committee is unable to determine what portion of such increase is attributable to any particular factors.” Id., at 14.