Chisom v. Roemer/Opinion of the Court

The preamble to the Voting Rights Act of 1965 establishes that the central purpose of the Act is "[t]o enforce the fifteenth amendment to the Constitution of the United States." The Fifteenth Amendment provides:

"The right of citizens of the United States to vote     shall not be denied or abridged by the United States or by      any State on account of race, color, or previous condition of      servitude." U.S.C.onst., Amdt. 15, § 1.

In 1982, Congress amended § 2 of the Voting Rights Act to make clear that certain practices and procedures that result in the denial or abridgement of the right to vote are forbidden even though the absence of proof of discriminatory intent protects them from constitutional challenge. The question presented by this case is whether this "results test" protects the right to vote in state judicial elections. We hold that the coverage provided by the 1982 amendment is coextensive with the coverage provided by the Act prior to 1982 and that judicial elections are embraced within that coverage.

* Petitioners in No. 90-757 represent a class of approximately 135,000 black registered voters in Orleans Parish, Louisiana. App. 6-7, 13. They brought this action against the Governor and other state officials (respondents) to challenge the method of electing justices of the Louisiana Supreme Court from the New Orleans area. The United States, petitioner in No. 90-1032, intervened to support the claims advanced by the plaintiff class.

The Louisiana Supreme Court consists of seven justices, five of whom are elected from five single-member Supreme Court Districts, and two of whom are elected from one multi-member Supreme Court District. Each of the seven members of the court must be a resident of the district from which he or she is elected and must have resided there for at least two years prior to election. App. to Pet. for Cert. 7a. Each of the justices on the Louisiana Supreme Court serves a term of 10 years. The one multimember district, the First Supreme Court District, consists of the parishes of Orleans, St. Bernard, Plaquemines, and Jefferson. Orleans Parish contains about half of the population of the First Supreme Court District and about half of the registered voters in that district. Chisom v. Edwards, 839 F.2d 1056, 1057 (CA5 1988). More than one-half of the registered voters of Orleans Parish are black, whereas more than three-fourths of the registered voters in the other three parishes are white. App. 8.

Petitioners allege that "the present method of electing two Justices to the Louisiana Supreme Court at-large from the New Orleans area impermissibly dilutes minority voting strength" in violation of § 2 of the Voting Rights Act. Id., at 9. Furthermore, petitioners claimed in the courts below that the current electoral system within the First Supreme Court District violates the Fourteenth and Fifteenth Amendments of the Federal Constitution because the purpose and effect of this election practice "is to dilute, minimize, and cancel the voting strength" of black voters in Orleans Parish. Ibid. Petitioners seek a remedy that would divide the First District into two districts, one for Orleans Parish and the second for the other three parishes. If this remedy were adopted, the seven members of the Louisiana Supreme Court would each represent a separate single-member judicial district, and each of the two new districts would have approximately the same population. Id., at 8. According to petitioners, the new Orleans Parish district would also have a majority black population and majority black voter registration. Id., at 8, 47.

The District Court granted respondents' motion to dismiss the complaint. Chisom v. Edwards, 659 F.Supp. 183 (ED La.1987). It held that the constitutional claims were insufficient because the complaint did not adequately allege a specific intent to discriminate. Id., at 189. With respect to the statutory claim, the court held that § 2 is not violated unless there is an abridgement of minority voters' opportunity "to elect representatives of their choice." Id., at 186-187. The court concluded that because judges are not "representatives," judicial elections are not covered by § 2. Id., at 187.

The Court of Appeals for the Fifth Circuit reversed. Chisom v. Edwards, 839 F.2d 1056, cert. denied ''sub nom. Roemer v. Chisom,'' 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988). Before beginning its analysis, the court remarked that "[i]t is particularly significant that no black person has ever been elected to the Louisiana Supreme Court, either from the First Supreme Court District or from any one of the other five judicial districts." 839 F.2d, at 1058. After agreeing with the recently announced opinion in Mallory v. Eyrich, 839 F.2d 275 (CA6 1988), it noted that the broad definition of the terms "voting" and "vote" in § 14(c)(1) of the original Act expressly included judicial elections within the coverage of § 2. It also recognized Congress' explicit intent to expand the coverage of § 2 by enacting the 1982 amendment. 839 F.2d, at 1061. Consistent with Congress' efforts to broaden coverage under the Act, the court rejected the State's contention that the term "representatives" in the 1982 amendment was used as a word of limitation. Id., at 1063 (describing State's position as "untenable"). Instead, the court concluded that representative " 'denotes anyone selected or chosen by popular election from among a field of candidates to fill an office, including judges.' " Ibid. (quoting Martin v. Allain, 658 F.Supp. 1183, 1200 (SD Miss.1987)). The court buttressed its interpretation by noting that "section 5 and section 2, virtually companion sections, operate in tandem to prohibit discriminatory practices in voting, whether those practices originate in the past, present, or future." 839 F.2d, at 1064. It also gleaned support for its construction of § 2 from the fact that the Attorney General had "consistently supported an expansive, not restrictive, construction of the Act." Ibid. Finally, the court held that the constitutional allegations were sufficient to warrant a trial, and reinstated all claims. Id., at 1065.

After the case was remanded to the District Court, the United States filed a complaint in intervention in which it alleged that the use of a multimember district to elect two members of the Louisiana Supreme Court is a "standard, practice or procedure" that "results in a denial or abridgment of the right to vote on account of race or color in violation of Section 2 of the Voting Rights Act." App. 48. After a nonjury trial, however, the District Court concluded that the evidence did not establish a violation of § 2 under the standards set forth in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). App. to Pet. for Cert. 62a. The District Court also dismissed the constitutional claims. Id., at 63a-64a. Petitioners and the United States appealed. While their appeal was pending, the Fifth Circuit, sitting en banc in another case, held that judicial elections were not covered under § 2 of the Act as amended. League of United Latin American Citizens Council No. 4434 v. Clements, 914 F.2d 620 (1990) (hereinafter LULAC ).

The majority in LULAC concluded that Congress' use of the word "representatives" in the phrase "to elect representatives of their choice" in § 2(b) of the Act indicated that Congress did not intend to authorize vote dilution claims in judicial elections. The en banc panel reached this conclusion after considering (1) the "precise language" of the Amendment, id., at 624; (2) the character of the judicial office, with special emphasis on "the cardinal reason that judges need not be elected at all," id., at 622;  and (3) the fact that the one-person, one-vote rule had been held inapplicable to judicial elections before 1982, id., at 626.

The precise language of § 2 on which the LULAC majority focused provides that a violation of § 2 is established if the members of a protected class:

" 'have less opportunity than other members of the electorate     to participate in the political process and to elect      representatives of their choice.' "  Id., at 625 (quoting 42      U.S.C. § 1973(b)).

Noting that this language protects both the "the broad and general opportunity to participate in the political process and the specific one to elect representatives," LULAC, 914 F.2d, at 625, the court drew a distinction between claims involving tests or other devices that interfere with individual participation in an election, on the one hand, and claims of vote dilution that challenge impairment of a group's opportunity to elect representatives of their choice, on the other hand. The majority assumed that the amended § 2 would continue to apply to judicial elections with respect to claims in the first category, see ibid., but that the word "representatives" excludes judicial elections from claims in the second category. See id., at 625-628.

In the majority's view, it was "factually false" to characterize judges as representatives because public opinion is "irrelevant to the judge's role," id., at 622; "the judiciary serves no representative function whatever:  the judge represents no one." Id., at 625. The majority concluded that judicial offices "are not 'representative' ones, and their occupants are not representatives." Id., at 631. Thus, Congress would not have used the word "representatives," as it did in § 2(b) of the Act, if it intended that subsection to apply to vote dilution claims in judicial elections.

The majority also assumed that Congress was familiar with Wells v. Edwards, 347 F.Supp. 453 (MD La.1972), summarily aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), a reapportionment case in which the District Court held that "the concept of one-man, one-vote apportionment does not apply to the judicial branch of the government." Wells, 347 F.Supp., at 454. The express reference in the Senate Report to the fact that the " 'principle that the right to vote is denied or abridged by dilution of voting strength derives from the one-person, one-vote reapportionment case of Reynolds v. Sims, [377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ],' " LULAC, 914 F.2d, at 629 (quoting S.Rep. No. 97-417, p. 19 (1982)), persuaded the majority that, in light of the case law holding that judges were not representatives in the context of one-person, one-vote reapportionment cases, see LULAC, 914 F.2d., at 626 (citing cases), Congress would not have authorized vote dilution claims in judicial elections without making an express, unambiguous statement to that effect.

Following the en banc decision in LULAC, the Court of Appeals remanded this case to the District Court with directions to dismiss the complaint. 917 F.2d 187. App. to Pet. for Cert. 1a-3a (per curiam ). It expressed no opinion on the strength of petitioners' evidentiary case. We granted certiorari, 498 U.S., 111 S.Ct. 775, 112 L.Ed.2d 838 (1991), and set the case for argument with LULAC, see post, at.

Our decision today is limited in character, and thus, it is useful to begin by identifying certain matters that are not in dispute. No constitutional claims are before us. Unlike Wells v. Edwards, White v. Regester, and Mobile v. Bolden, this case presents us solely with a question of statutory construction. That question involves only the scope of the coverage of § 2 of the Voting Rights Act as amended in 1982. We therefore do not address any question concerning the elements that must be proved to establish a violation of the Act or the remedy that might be appropriate to redress a violation if proved.

It is also undisputed that § 2 applied to judicial elections prior to the 1982 amendment, and that § 5 of the amended statute continues to apply to judicial elections, see Clark v. Roemer, 500 U.S., 111 S.Ct. 2096, --- L.Ed.2d (1991). Moreover, there is no question that the terms "standard, practice, or procedure" are broad enough to encompass the use of multimember districts to minimize a racial minority's ability to influence the outcome of an election covered by § 2. The only matter in dispute is whether the test for determining the legality of such a practice, which was added to the statute in 1982, applies in judicial elections as well as in other elections.

The text of § 2 of the Voting Rights Act as originally enacted read as follows:

"SEC. 2. No voting qualification or prerequisite to     voting, or standard, practice, or procedure shall be imposed      or applied by any State or political subdivision to deny or      abridge the right of any citizen of the United States to vote      on account of race or color." 79 Stat. 437.

The terms "vote" and "voting" were defined elsewhere in the Act to include "all action necessary to make a vote effective in any primary, special, or general election." § 14(c)(1) of the Act, 79 Stat. 445 (emphasis added). The statute further defined vote and voting as "votes cast with respect to candidates for public or party office and propositions for which votes are received in an election." Ibid. At the time of the passage of the Voting Rights Act of 1965, § 2, unlike other provisions of the Act, did not provoke significant debate in Congress because it was viewed largely as a restatement of the Fifteenth Amendment. See H.R.Rep. No. 439, 89th Cong., 1st Sess., 23 (1965), U.S.Code Cong. & Admin.News 1965, pp. 2437, 2454 (§ 2 "grants . . . a right to be free from enactment or enforcement of voting qualifications . . . or practices which deny or abridge the right to vote on account of race or color"); see also S.Rep. No. 162, 89th Cong., 1st Sess., pt. 3, pp. 19-20 (1965). This Court took a similar view of § 2 in Mobile v. Bolden, 446 U.S. 55, 60-61, 100 S.Ct. 1490, 1495-1497, 64 L.Ed.2d 47 (1980). There, we recognized that the coverage provided by § 2 was unquestionably coextensive with the coverage provided by the Fifteenth Amendment; the provision simply elaborated upon the Fifteenth Amendment. Ibid. Section 2 protected the right to vote, and it did so without making any distinctions or imposing any limitations as to which elections would fall within its purview. As Attorney General Katzenbach made clear during his testimony before the House, "[e]very election in which registered electors are permitted to vote would be covered" under § 2.

The 1965 Act made it unlawful "to deny or abridge" the right to vote "on account of race or color." 79 Stat. 437. Congress amended § 2 in 1975 by expanding the original prohibition against discrimination "on account of race or color" to include non-English speaking groups. It did this by replacing "race or color" with "race or color, or in contravention of the guarantees set forth in section 4(f)(2)" of the Act. 89 Stat. 402. The 1982 amendment further expanded the protection afforded by § 2.

Justice Stewart's opinion for the plurality in Mobile v. Bolden, supra, which held that there was no violation of either the Fifteenth Amendment or § 2 of the Voting Rights Act absent proof of intentional discrimination, served as the impetus for the 1982 amendment. One year after the decision in Mobile, Chairman Rodino of the House Judiciary Committee introduced a bill to extend the Voting Rights Act and its bilingual requirements, and to amend § 2 by striking out "to deny or abridge" and substituting "in a manner which results in a denial or abridgment of." The "results" test proposed by Chairman Rodino was incorporated into S.1992, and ultimately into the 1982 amendment to § 2, and is now the focal point of this litigation.

Under the amended statute, proof of intent is no longer required to prove a § 2 violation. Now plaintiffs can prevail under § 2 by demonstrating that a challenged election practice has resulted in the denial or abridgement of the right to vote based on color or race. Congress not only incorporated the results test in the paragraph that formerly constituted the entire § 2, but also designated that paragraph as subsection (a) and added a new subsection (b) to make clear that an application of the results test requires an inquiry into "the totality of the circumstances." The full text of § 2 as amended in 1982 reads as follows:

"SEC. 2. (a) No voting qualification or prerequisite to     voting or standard, practice, or procedure shall be imposed      or applied by any State or political subdivision in a manner      which results in a denial or abridgement of the right of any      citizen of the United States to vote on account of race or color, or in contravention of the      guarantees set forth in section 4(f)(2), as provided in      subsection (b).

"(b) A violation of subsection (a) is established if,     based on the totality of circumstances, it is shown that the      political processes leading to nomination or election in the      State or political subdivision are not equally open to      participation by members of a class of citizens protected by      subsection (a) in that its members have less opportunity than      other members of the electorate to participate in the      political process and to elect representatives of their      choice.  The extent to which members of a protected class      have been elected to office in the State or political      subdivision is one circumstance which may be considered:      Provided, That nothing in this section establishes a right      to have members of a protected class elected in numbers equal      to their proportion in the population." 96 Stat. 134.

The two purposes of the amendment are apparent from its text. Section 2(a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation of the section. Section 2(b) provides guidance about how the results test is to be applied.

Respondents contend, and the LULAC majority agreed, that Congress' choice of the word "representatives" in the phrase "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice" in section 2(b) is evidence of congressional intent to exclude vote dilution claims involving judicial elections from the coverage of § 2. We reject that construction because we are convinced that if Congress had such an intent, Congress would have made it explicit in the statute, or at least some of the Members would have identified or mentioned it at some point in the unusually extensive legislative history of the 1982 amendment. Our conclusion is confirmed when we review the justifications offered by the LULAC majority and respondents in support of their construction of the statute; we address each of their main contentions in turn.

The LULAC majority assumed that § 2 provides two distinct types of protection for minority voters-it protects their opportunity "to participate in the political process" and their opportunity "to elect representatives of their choice." See LULAC, 914 F.2d, at 625. Although the majority interpreted "representatives" as a word of limitation, it assumed that the word eliminated judicial elections only from the latter protection, without affecting the former. Id., at 625, 629. In other words, a standard, practice, or procedure in a judicial election, such as a limit on the times that polls are open, which has a disparate impact on black voters' opportunity to cast their ballots under § 2, may be challenged even if a different practice that merely affects their opportunity to elect representatives of their choice to a judicial office may not. This reading of § 2, however, is foreclosed by the statutory text and by our prior cases.

Any abridgement of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election. As the statute is written, however, the inability to elect representatives of their choice is not sufficient to establish a violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. The statute does not create two separate and distinct rights. Subsection (a) covers every application of a qualification, standard, practice, or procedure that results in a denial or abridgement of "the right " to vote. The singular form is also used in subsection (b) when referring to an injury to members of the protected class who have less "opportunity" than others "to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973 (emphasis added). It would distort the plain meaning of the sentence to substitute the word "or" for the word "and." Such radical surgery would be required to separate the opportunity to participate from the opportunity to elect.

The statutory language is patterned after the language used by Justice WHITE in his opinions for the Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). See n. 22, supra. In both opinions, the Court identified the opportunity to participate and the opportunity to elect as inextricably linked. In White v. Regester, the Court described the connection as follows: "The plaintiffs' burden is to produce evidence . . . that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice." 412 U.S., at 766, 93 S.Ct., at 2339 (emphasis added). And earlier, in Whitcomb v. Chavis, the Court described the plaintiffs' burden as entailing a showing that they "had less opportunity than did other . . . residents to participate in the political processes and to elect legislators of their choice." 403 U.S., at 149, 91 S.Ct., at 1872 (emphasis added).

The results test mandated by the 1982 amendment is applicable to all claims arising under § 2. If the word "representatives" did place a limit on the coverage of the Act for judicial elections, it would exclude all claims involving such elections from the protection of § 2. For all such claims must allege an abridgement of the opportunity to participate in the political process and to elect representatives of one's choice. Even if the wisdom of Solomon would support the LULAC majority's proposal to preserve claims based on an interference with the right to vote in judicial elections while eschewing claims based on the opportunity to elect judges, we have no authority to divide a unitary claim created by Congress.

Both respondents and the LULAC majority place their principal reliance on Congress' use of the word "representatives" instead of "legislators" in the phrase "to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973. When Congress borrowed the phrase from White v. Regester, it replaced "legislators" with "representatives." This substitution indicates, at the very least, that Congress intended the amendment to cover more than legislative elections. Respondents argue, and the majority agreed, that the term "representatives" was used to extend § 2 coverage to executive officials, but not to judges. We think, however, that the better reading of the word "representatives" describes the winners of representative, popular elections. If executive officers, such as prosecutors, sheriffs, state attorneys general, and state treasurers, can be considered "representatives" simply because they are chosen by popular election, then the same reasoning should apply to elected judges.

Respondents suggest that if Congress had intended to have the statute's prohibition against vote dilution apply to the election of judges, it would have used the word "candidates" instead of "representatives." Brief for Respondents 20, and n. 9. But that confuses the ordinary meaning of the words. The word "representative" refers to someone who has prevailed in a popular election, whereas the word "candidate" refers to someone who is seeking an office. Thus, a candidate is nominated, not elected. When Congress used "candidate" in other parts of the statute, it did so precisely because it was referring to people who were aspirants for an office. See, e.g., 42 U.S.C. § 1971(b) ("any candidate for the office of President"), § 1971(e) ("candidates for public office"), § 1973i(c) ("any candidate for the office of President"), § 1973i(e)(2) ("any candidate for the office of President"), § 1973l(c) ("candidates for public or party office"), § 1973ff-2 ("In the case of the offices of President and Vice President, a vote for a named candidate"), § 1974 ("candidates for the office of President"), § 1974e ("candidates for the office of President").

The LULAC majority was, of course, entirely correct in observing that "judges need not be elected at all," 914 F.2d, at 622, and that ideally public opinion should be irrelevant to the judge's role because the judge is often called upon to disregard, or even to defy, popular sentiment. The Framers of the Constitution had a similar understanding of the judicial role, and as a consequence, they established that Article III judges would be appointed, rather than elected, and would be sheltered from public opinion by receiving life tenure and salary protection. Indeed, these views were generally shared by the States during the early years of the Republic. Louisiana, however, has chosen a different course. It has decided to elect its judges and to compel judicial candidates to vie for popular support just as other political candidates do.

The fundamental tension between the ideal character of the judicial office and the real world of electoral politics cannot be resolved by crediting judges with total indifference to the popular will while simultaneously requiring them to run for elected office. When each of several members of a court must be a resident of a separate district, and must be elected by the voters of that district, it seems both reasonable and realistic to characterize the winners as representatives of that district. Indeed, at one time the Louisiana Bar Association characterized the members of the Louisiana Supreme Court as representatives for that reason: "Each justice and judge now in office shall be considered as a representative of the judicial district within which is situated the parish of his residence at the time of his election." Louisiana could, of course, exclude its judiciary from the coverage of the Voting Rights Act by changing to a system in which judges are appointed, and in that way, it could enable its judges to be indifferent to popular opinion. The reasons why Louisiana has chosen otherwise are precisely the reasons why it is appropriate for § 2, as well as § 5, of the Voting Rights Act to continue to apply to its judicial elections.

The close connection between § 2 and § 5 further undermines respondents' view that judicial elections should not be covered under § 2. Section 5 requires certain States to submit changes in their voting procedures to the District Court of the District of Columbia or to the Attorney General for preclearance. Section 5 uses language similar to that of § 2 in defining prohibited practices: "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." 42 U.S.C. § 1973c. This Court has already held that § 5 applies to judicial elections. Clark v. Roemer, 500 U.S., 111 S.Ct. 2096, --- L.Ed.2d (1991). If § 2 did not apply to judicial elections, a State covered by § 5 would be precluded from implementing a new voting procedure having discriminatory effects with respect to judicial elections, whereas a similarly discriminatory system already in place could not be challenged under § 2. It is unlikely that Congress intended such an anomalous result.

Finally, both respondents and the LULAC majority suggest that no judicially manageable standards for deciding vote dilution claims can be fashioned unless the standard is based on the one-person, one-vote principle. They reason that because we have held the one-person, one-vote rule inapplicable to judicial elections, see Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), aff'g 347 F.Supp., at 454, it follows that judicial elections are entirely immune from vote dilution claims. The conclusion, however, does not follow from the premise.

The holding in Wells rejected a constitutional challenge based on the Equal Protection Clause of the Fourteenth Amendment. It has no more relevance to a correct interpretation of this statute than does our decision in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which also rejected a constitutional claim. The statute was enacted to protect voting rights that are not adequately protected by the Constitution itself. Cf. City of Rome v. United States, 446 U.S. 156, 172-183, 100 S.Ct. 1548, 1559-1565, 64 L.Ed.2d 119 (1980). The standard that should be applied in litigation under § 2 is not at issue here. Even if serious problems lie ahead in applying the "totality of circumstances" described in § 2(b), that task, difficult as it may prove to be, cannot justify a judicially created limitation on the coverage of the broadly worded statute, as enacted and amended by Congress.

Congress enacted the Voting Rights Act of 1965 for the broad remedial purpose of "rid[ding] the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 811, 15 L.Ed.2d 769 (1966). In Allen v. State Board of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 832, 22 L.Ed.2d 1 (1969), we said that the Act should be interpreted in a manner that provides "the broadest possible scope" in combatting racial discrimination. Congress amended the Act in 1982 in order to relieve plaintiffs of the burden of proving discriminatory intent, after a plurality of this Court had concluded that the original Act, like the Fifteenth Amendment, contained such a requirement. See Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). Thus, Congress made clear that a violation of § 2 could be established by proof of discriminatory results alone. It is difficult to believe that Congress, in an express effort to broaden the protection afforded by the Voting Rights Act, withdrew, without comment, an important category of elections from that protection. Today we reject such an anomalous view and hold that state judicial elections are included within the ambit of § 2 as amended.

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

It is so ordered.

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice KENNEDY join, dissenting.