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Full Opinion
HUDSON et al.
v.
UNITED STATES
United States Supreme Court.
*94 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 106. Stevens, J., post, p. 106, and Souter, J., post, p. 112, filed opinions concurring in the judgment. Breyer, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined, post, p. 115.
Bernard J. Rothbaum argued the cause for petitioners. With him on the briefs were Jack L. Neville, Jr., Lawrence S. Robbins, C. Merle Gile, James A. Rolfe, and Lynn Pringle.
Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Acting *95 Solicitor General Dellinger, Acting Assistant Attorney General Keeney, and Paul R. Q. Wolfson.[*]
Chief Justice Rehnquist delivered the opinion of the Court.
The Government administratively imposed monetary penalties and occupational debarment on petitioners for violation of federal banking statutes, and later criminally indicted them for essentially the same conduct. We hold that the *96 Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal. Our reasons for so holding in large part disavow the method of analysis used in United States v. Halper, 490 U. S. 435, 448 (1989), and reaffirm the previously established rule exemplified in United States v. Ward, 448 U. S. 242, 248-249 (1980).
During the early and mid-1980's, petitioner John Hudson was the chairman and controlling shareholder of the First National Bank of Tipton (Tipton) and the First National Bank of Hammon (Hammon).[1] During the same period, petitioner Jack Rackley was president of Tipton and a member of the board of directors of Hammon, and petitioner Larry Baresel was a member of the board of directors of both Tipton and Hammon.
An examination of Tipton and Hammon led the Office of the Comptroller of the Currency (OCC) to conclude that petitioners had used their bank positions to arrange a series of loans to third parties in violation of various federal banking statutes and regulations. According to the OCC, those loans, while nominally made to third parties, were in reality made to Hudson in order to enable him to redeem bank stock that he had pledged as collateral on defaulted loans.
On February 13, 1989, OCC issued a "Notice of Assessment of Civil Money Penalty." The notice alleged that petitioners had violated 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986) by causing the banks with which they were associated to make loans to nominee borrowers in a manner that unlawfully allowed Hudson to receive the benefit of the loans. App. to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted in losses to Tipton and Hammon of almost $900,000 and contributed to the failure of those banks. Id., at 97a. However, the notice contained no allegation of any harm to the Government *97 as a result of petitioners' conduct. "After taking into account the size of the financial resources and the good faith of [petitioners], the gravity of the violations, the history of previous violations and other matters as justice may require, as required by 12 U. S. C. §§ 93(b)(2) and 504(b)," OCC assessed penalties of $100,000 against Hudson and $50,000 each against Rackley and Baresel. Id., at 89a. On August 31, 1989, OCC also issued a "Notice of Intention to Prohibit Further Participation" against each petitioner. Id., at 99a. These notices, which were premised on the identical allegations that formed the basis for the previous notices, informed petitioners that OCC intended to bar them from further participation in the conduct of "any insured depository institution." Id., at 100a.
In October 1989, petitioners resolved the OCC proceedings against them by each entering into a "Stipulation and Consent Order." These consent orders provided that Hudson, Baresel, and Rackley would pay assessments of $16,500, $15,000, and $12,500 respectively. Id., at 130a, 140a, 135a. In addition, each petitioner agreed not to "participate in any manner" in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies.[2]Id., at 131a, 141a, 136a.
In August 1992, petitioners were indicted in the Western District of Oklahoma in a 22-count indictment on charges of conspiracy, 18 U. S. C. § 371, misapplication of bank funds, §§ 656 and 2, and making false bank entries, § 1005.[3] The violations charged in the indictment rested on the same lending *98 transactions that formed the basis for the prior administrative actions brought by OCC. Petitioners moved to dismiss the indictment on double jeopardy grounds, but the District Court denied the motions. The Court of Appeals affirmed the District Court's holding on the nonparticipation sanction issue, but vacated and remanded to the District Court on the money sanction issue. 14 F. 3d 536 (CA10 1994). The District Court on remand granted petitioners' motion to dismiss the indictments. This time the Government appealed, and the Court of Appeals reversed. 92 F. 3d 1026 (1996). That court held, following Halper, that the actual fines imposed by the Government were not so grossly disproportional to the proved damages to the Government as to render the sanctions "punishment" for double jeopardy purposes. We granted certiorari, 520 U. S. 1165 (1997), because of concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper.[4] We now affirm, but for different reasons.
The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of *99 all additional sanctions that could, "`in common parlance,' " be described as punishment. United States ex rel. Marcus v. Hess, 317 U. S. 537, 549 (1943) (quoting Moore v. Illinois, 14 How. 13, 19 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U. S. 391, 399 (1938); see also Hess, supra, at 548-549 ("Only" "criminal punishment" "subject[s] the defendant to `jeopardy' within the constitutional meaning"); Breed v. Jones, 421 U. S. 519, 528 (1975) ("In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution"), and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U. S. 359, 366 (1983).
Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. Helvering, supra, at 399. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Ward, 448 U. S., at 248. Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," id., at 248-249, as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956).
In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), provide useful guideposts, including: (1) "[w]hether the sanction involves an affirmative disability or restraint"; (2) "whether it has historically been regarded as a punishment"; (3) "whether it comes into play only on a finding of scienter"; (4) "whether its operation will promote the traditional aims of punishmentretribution and deterrence"; (5) "whether the behavior to which it applies is already a crime"; (6) "whether an alternative purpose to which it may rationally be connected is assignable for it"; and (7) "whether it appears *100 excessive in relation to the alternative purpose assigned." It is important to note, however, that "these factors must be considered in relation to the statute on its face," id., at 169, and "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty, Ward, supra, at 249 (internal quotation marks omitted).
Our opinion in United States v. Halper marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature. In that case, Irwin Halper was convicted of, inter alia, violating the criminal false claims statute, 18 U. S. C. § 287, based on his submission of 65 inflated Medicare claims each of which overcharged the Government by $9. He was sentenced to two years' imprisonment and fined $5,000. The Government then brought an action against Halper under the civil False Claims Act, 31 U. S. C. §§ 3729-3731 (1982 ed., Supp. II). The remedial provisions of the False Claims Act provided that a violation of the Act rendered one "liable to the United States Government for a civil penalty of $2,000, an amount equal to 2 times the amount of damages the Government sustains because of the act of that person, and costs of the civil action." Id., § 3729. Given Halper's 65 separate violations of the Act, he appeared to be liable for a penalty of $130,000, despite the fact he actually defrauded the Government of less than $600. However, the District Court concluded that a penalty of this magnitude would violate the Double Jeopardy Clause in light of Halper's previous criminal conviction. While explicitly recognizing that the statutory damages provision of the Act "was not itself a criminal punishment," the District Court nonetheless concluded that application of the full penalty to Halper would constitute a second "punishment" in violation of the Double Jeopardy Clause. 490 U. S., at 438-439.
On direct appeal, this Court affirmed. As the Halper Court saw it, the imposition of "punishment" of any kind was *101 subject to double jeopardy constraints, and whether a sanction constituted "punishment" depended primarily on whether it served the traditional "goals of punishment," namely, "retribution and deterrence." Id., at 448. Any sanction that was so "overwhelmingly disproportionate" to the injury caused that it could not "fairly be said solely to serve [the] remedial purpose" of compensating the Government for its loss, was thought to be explainable only as "serving either retributive or deterrent purposes." See id., at 448-449 (emphasis added).
The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a "criminal" punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute "punishment." In so doing, the Court elevated a single Kennedy factorwhether the sanction appeared excessive in relation to its nonpunitive purposesto dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they "may often point in differing directions." 372 U. S., at 169. The second significant departure in Halper was the Court's decision to "asses[s] the character of the actual sanctions imposed," 490 U. S., at 447, rather than, as Kennedy demanded, evaluating the "statute on its face" to determine whether it provided for what amounted to a criminal sanction, 372 U. S., at 169.
We believe that Halper `s deviation from longstanding double jeopardy principles was ill considered.[5] As subsequent *102 cases have demonstrated, Halper `s test for determining whether a particular sanction is "punitive," and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. See Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 777, n. 14 (1994); United States v. Ursery, 518 U. S. 267, 284-285, n. 2 (1996).[6] If a sanction must be "solely" remedial (i. e. , entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. Under Halper `s method of analysis, a court must also look at the "sanction actually imposed" to determine whether the Double Jeopardy Clause is implicated. Thus, it will not be possible to determine whether the Double Jeopardy Clause is violated until a defendant has proceeded through a trial to judgment. But in those cases where the civil proceeding follows the criminal proceeding, this approach flies in the face of the notion that the Double Jeopardy Clause forbids the government from even "attempting a second time to punish criminally." Helvering, 303 U. S., at 399 (emphasis added).
Finally, it should be noted that some of the ills at which Halper was directed are addressed by other constitutional *103 provisions. The Due Process and Equal Protection Clauses already protect individuals from sanctions which are downright irrational. Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The Eighth Amendment protects against excessive civil fines, including forfeitures. Alexander v. United States, 509 U. S. 544 (1993); Austin v. United States, 509 U. S. 602 (1993). The additional protection afforded by extending double jeopardy protections to proceedings heretofore thought to be civil is more than offset by the confusion created by attempting to distinguish between "punitive" and "nonpunitive" penalties.
Applying traditional double jeopardy principles to the facts of this case, it is clear that the criminal prosecution of these petitioners would not violate the Double Jeopardy Clause. It is evident that Congress intended the OCC money penalties and debarment sanctions imposed for violations of 12 U. S. C. §§ 84 and 375b to be civil in nature. As for the money penalties, both §§ 93(b)(1) and 504(a), which authorize the imposition of monetary penalties for violations of §§ 84 and 375b respectively, expressly provide that such penalties are "civil." While the provision authorizing debarment contains no language explicitly denominating the sanction as civil, we think it significant that the authority to issue debarment orders is conferred upon the "appropriate Federal banking agenc[ies]." §§ 1818(e)(1)(3). That such authority was conferred upon administrative agencies is prima facie evidence that Congress intended to provide for a civil sanction. See Helvering, supra, at 402; United States v. Spector, 343 U. S. 169, 178 (1952) (Jackson, J., dissenting) ("Administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations"); Wong Wing v. United States, 163 U. S. 228, 235 (1896) (holding that quintessential criminal punishments may be imposed only "by a judicial trial").
*104 Turning to the second stage of the Ward test, we find that there is little evidence, much less the clearest proof that we require, suggesting that either OCC money penalties or debarment sanctions are "so punitive in form and effect as to render them criminal despite Congress' intent to the contrary." Ursery, supra, at 290. First, neither money penalties nor debarment has historically been viewed as punishment. We have long recognized that "revocation of a privilege voluntarily granted," such as a debarment, "is characteristically free of the punitive criminal element." Helvering, 303 U. S., at 399, and n. 2. Similarly, "the payment of fixed or variable sums of money [is a] sanction which ha[s] been recognized as enforcible by civil proceedings since the original revenue law of 1789." Id., at 400.
Second, the sanctions imposed do not involve an "affirmative disability or restraint," as that term is normally understood. While petitioners have been prohibited from further participating in the banking industry, this is "certainly nothing approaching the `infamous punishment' of imprisonment." Flemming v. Nestor, 363 U. S. 603, 617 (1960). Third, neither sanction comes into play "only" on a finding of scienter. The provisions under which the money penalties were imposed, 12 U. S. C. §§ 93(b) and 504, allow for the assessment of a penalty against any person "who violates" any of the underlying banking statutes, without regard to the violator's state of mind. "Good faith" is considered by OCC in determining the amount of the penalty to be imposed, § 93(b)(2), but a penalty can be imposed even in the absence of bad faith. The fact that petitioners' "good faith" was considered in determining the amount of the penalty to be imposed in this case is irrelevant, as we look only to "the statute on its face" to determine whether a penalty is criminal in nature. Kennedy, 372 U. S., at 169. Similarly, while debarment may be imposed for a "willful" disregard "for the safety or soundness of [an] insured depository institution," *105 willfulness is not a prerequisite to debarment; it is sufficient that the disregard for the safety and soundness of the institution was "continuing." § 1818(e)(1)(C)(ii).
Fourth, the conduct for which OCC sanctions are imposed may also be criminal (and in this case formed the basis for petitioners' indictments). This fact is insufficient to render the money penalties and debarment sanctions criminally punitive, Ursery, 518 U. S., at 292, particularly in the double jeopardy context, see United States v. Dixon, 509 U. S. 688, 704 (1993) (rejecting "same-conduct" test for double jeopardy purposes).
Finally, we recognize that the imposition of both money penalties and debarment sanctions will deter others from emulating petitioners' conduct, a traditional goal of criminal punishment. But the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence "may serve civil as well as criminal goals." Ursery, supra, at 292; see also Bennis v. Michigan, 516 U. S. 442, 452 (1996) ("[F]orfeiture . . . serves a deterrent purpose distinct from any punitive purpose"). For example, the sanctions at issue here, while intended to deter future wrongdoing, also serve to promote the stability of the banking industry. To hold that the mere presence of a deterrent purpose renders such sanctions "criminal" for double jeopardy purposes would severely undermine the Government's ability to engage in effective regulation of institutions such as banks.
In sum, there simply is very little showing, to say nothing of the "clearest proof " required by Ward, that OCC money penalties and debarment sanctions are criminal. The Double Jeopardy Clause is therefore no obstacle to their trial on the pending indictments, and it may proceed.
The judgment of the Court of Appeals for the Tenth Circuit is accordingly
Affirmed.
*106 Justice Scalia, with whom Justice Thomas joins, concurring.
I wholly agree with the Court's conclusion that Halper `s test for whether a sanction is "punitive" was ill considered and unworkable. Ante, at 101-102. Indeed, it was the absurdity of trying to force the Halper analysis upon the Montana tax scheme at issue in Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994), that prompted me to focus on the prior question whether the Double Jeopardy Clause even contains a multiple-punishments prong. See id., at 802-803. That evaluation led me to the conclusion that the Double Jeopardy Clause prohibits successive prosecution, not successive punishment, and that we should therefore "put the Halper genie back in the bottle." Id., at 803 805. Today's opinion uses a somewhat different bottle than I would, returning the law to its state immediately prior to Halper which acknowledged a constitutional prohibition of multiple punishments but required successive criminal prosecutions. So long as that requirement is maintained, our multiple-punishments jurisprudence essentially duplicates what I believe to be the correct double jeopardy law, and will be as harmless in the future as it was pre-Halper. Accordingly, I am pleased to concur.
Justice Stevens, concurring in the judgment. The maxim that "hard cases make bad law" may also apply to easy cases. As I shall explain, this case could easily be decided by the straightforward application of wellestablished precedent. Neither such a disposition, nor anything in the opinion of the Court of Appeals, would require a reexamination of the central holding in United States v. Halper, 490 U. S. 435 (1989), or of the language used in that unanimous opinion. Any proper concern about the danger that that opinion might be interpreted too expansively would be more appropriately addressed in a case that was either incorrectly decided or that at least raised a close or difficult *107 question. In my judgment it is most unwise to use this case as a vehicle for the substitution of a rather open-ended attempt to define the concept of punishment for the portions of the opinion in Halper that trouble the Court. Accordingly, while I have no hesitation about concurring in the Court's judgment, I do not join its opinion.
I
As is evident from the first sentence of the Court's opinion, this is an extremely easy case. It has been settled since the decision in Blockburger v. United States, 284 U. S. 299 (1932), that the Double Jeopardy Clause is not implicated simply because a criminal charge involves "essentially the same conduct" for which a defendant has previously been punished. See, e. g., United States v. Dixon, 509 U. S. 688, 696, 704 (1993); Rutledge v. United States, 517 U. S. 292, 297 (1996). Unless a second proceeding involves the "same offense" as the first, there is no double jeopardy. The two proceedings at issue here involved different offenses that were not even arguably the same under Blockburger.
Under Blockburger `s "same-elements" test, two provisions are not the "same offense" if each contains an element not included in the other. Dixon, 509 U. S., at 696. The penalties imposed on the petitioners in 1989 were based on violations of 12 U. S. C. §§ 84(a)(1) and 375b (1982 ed.) and 12 CFR §§ 31.2(b) and 215.4(b) (1986). Each of these provisions required proof that extensions of credit exceeding certain limits were made,[1] but did not require proof of an intent to defraud or the making of any false entries in bank records. The 1992 indictment charged violations of 18 U. S. C. §§ 371, 656, and 1005 and alleged a conspiracy to willfully misapply *108 bank funds and to make false banking entries, as well as the making of such entries; none of those charges required proof that any lending limit had been exceeded.
Thus, I think it would be difficult to find a case raising a double jeopardy claim that would be any easier to decide than this one.[2]
II
The Court not only ignores the most obvious and straightforward basis for affirming the judgment of the Court of Appeals; it also has nothing to say about that court's explanation of why the reasoning in our opinion in United States v. Halper supported a rejection of petitioners' double jeopardy claim. Instead of granting certiorari to consider a possible error in the Court of Appeals' reasoning or its judgment, the Court candidly acknowledges that it was motivated by "concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper. " Ante, at 98.
The Court's opinion seriously exaggerates the significance of those concerns. Its list of cases illustrating the problem cites seven cases decided in the last two years. Ante, at 98, n. 4. In every one of those cases, however, the Court of Appeals rejected the double jeopardy claim. The only ruling by any court favorable to any of these "novel" claims was a preliminary injunction entered by a District Court postponing implementation of New Jersey's novel, controversial *109 "Megan's Law." E. B. v. Poritz, 914 F. Supp. 85 (NJ 1996), rev'd, E. B. v. Verniero, 119 F. 3d 1077 (CA3 1997). Thus, the cases cited by the Court surely do not indicate any need to revisit Halper.
The Court also claims that two practical flaws in the Halper opinion warrant a prompt adjustment in our double jeopardy jurisprudence. First, the Court asserts that Halper `s test is unworkable because it permits only successive sanctions that are "solely" remedial. Ante, at 102. Though portions of Halper were consistent with such a reading, the express statement of its holding was much narrower.[3] Of greater importance, the Court has since clarified this very point:
"Whether a particular sanction `cannot fairly be said solely to serve a remedial purpose' is an inquiry radically different from that we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of its decision." United States v. Ursery, 518 U. S. 267, 285, n. 2 (1996).
Having just recently emphasized Halper `s narrow rule in Ursery, it is quite odd for the Court now to suggest that its over breadth has created some sort of judicial emergency.
Second, the Court expresses the concern that when a civil proceeding follows a criminal punishment, Halper would require a court to wait until judgment is imposed in the successive proceeding before deciding whether the latter sanction violates double jeopardy. Ante, at 102. That concern is *110 wholly absent in this case, however, because the criminal indictment followed administrative sanctions. There can be no doubt that any fine or sentence imposed on the criminal counts would be "punishment." If the indictment charged the same offense for which punishment had already been imposed, the prosecution itself would be barred by the Double Jeopardy Clause no matter how minor the criminal sanction sought in the second proceeding.
Thus, the concerns that the Court identifies merely emphasize the accuracy of the comment in Halper itself that it announced "a rule for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." 490 U. S., at 449.
III
Despite my disagreement with the Court's decision to use this case as a rather lame excuse for writing a gratuitous essay about punishment, I do agree with its reaffirmation of the central holding of Halper and Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767 (1994). Both of those cases held that sanctions imposed in civil proceedings constituted "punishment" barred by the Double Jeopardy Clause.[4] Those holdings reconfirmed the settled proposition that the Government cannot use the "civil" label to escape entirely the Double Jeopardy Clause's command, as we have recognized for at least six decades. See United States v. La Franca, 282 U. S. 568, 574-575 (1931); Helvering v. Mitchell, 303 U. S. 391, 398-399 (1938). That proposition is extremely *111 important because the States and the Federal Government have an enormous array of civil administrative sanctions at their disposal that are capable of being used to punish persons repeatedly for the same offense, violating the bedrock double jeopardy principle of finality. "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . .." Green v. United States, 355 U. S. 184, 187 (1957). However the Court chooses to recalibrate the meaning of punishment for double jeopardy purposes, our doctrine still limits multiple sanctions of the rare sort contemplated by Halper.
IV
Today, as it did in Halper itself, the Court relies on the sort of multifactor approach to the definition of punishment that we used in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963), to identify situations in which a civil sanction is punitive. Whether the Court's reformulation of Halper `s test will actually affect the outcome of any cases remains to be seen. Perhaps it will not, since the Court recommends consideration of whether a sanction's "`operation will promote the traditional aims of punishmentretribution and deterrence,' " and "`whether it appears excessive in relation to the alternative [nonpunitive] purpose assigned.' " Ante, at 99-100 (quoting Kennedy, 372 U. S., at 168-169). Those factors look awfully similar to the reasoning in Halper, and while we are told that they are never by themselves dispositive, ante, at 101, they should be capable of tipping the balance in extreme cases. The danger in changing approaches midstream, rather than refining our established approach on an incremental basis, is that the Government and lower *112 courts may be unduly influenced by the Court's new attitude, rather than its specific prescribed test.
It is, of course, entirely appropriate for the Court to perform a lawmaking function as a necessary incident to its Article III responsibility for the decision of "Cases" and "Controversies." In my judgment, however, a desire to reshape the law does not provide a legitimate basis for issuing what amounts to little more than an advisory opinion that, at best, will ha