John G. Roberts, Jr.: We will hear argument next in Case 14-1457, Betterman v. Montana. Mr. Rowley.
Fred A. Rowley, Jr.: Mr. Chief Justice, and may it please the Court: The Speedy Trial Clause applies to a criminal prosecution through its culmination in sentencing. It is not cut off when the defendant pleads or is found guilty. The Court has said that the clause guarantees an early and proper disposition of a criminal charge, and that guarantee applies to the guilt stage of a prosecution when most defendants plead guilty and to the sentencing stage, which may be the only place in a criminal prosecution today when a defendant actually mounts a defense.
Ruth Bader Ginsburg: Does the Federal Speedy Trial Act -- not the constitutional provision, but the legislation -- does that cover sentencing, or is that limited to trial?
Fred A. Rowley, Jr.: Your Honor, my understanding is that it's limited to trial. The Court has recognized specific interests that are protected by the Speedy Trial Clause, and those interests apply not just to presumptively innocent defendants, as the State and the United States suggests, but some of them apply specifically to guilty defendants. In Barker, for instance, the Court notes that one of the interests that are protected by this -- that is protected by this clause is the interest in rehabilitation, and that a prolonged period of detention in jail can affect a defendant's rehabilitation. Well, that's specific to a guilty defendant. And in Smith v. Hooey, the Court noted that even though the defendant had been incarcerated in Federal prison, that that defendant could still be prejudiced by a prolonged delay in the State prosecution that followed because it could affect his ability to seek a concurrent sentence. That interest also is specific to a guilty defendant. So the sharp line between the guilt stage of a prosecution and the criminal -- and the sentencing stage of a prosecution isn't supported by this Court's speedy trial precedents.
Ruth Bader Ginsburg: What do you do with the -- all of our speedy trial decisions say there's only one remedy, and that is case over. Dismissal is the only appropriate remedy. But you're -- you're not arguing that, I understand, with respect to sentencing.
Fred A. Rowley, Jr.: Yes, Your Honor.
Ruth Bader Ginsburg: You are arguing --
Fred A. Rowley, Jr.: We were not arguing that.
Ruth Bader Ginsburg: So it's different. The speedy trial requirement says if you -- if you don't comply with the constitutional provision, dismissal. But you're saying sentencing is not the same as trial, to that extent, that the remedy is different?
Fred A. Rowley, Jr.: Your Honor, at the guilt stage of the prosecution, the outcomes are -- are binary. So the defendant is either adjudicated guilty or the charges are dismissed or the defendant is acquitted. So there's two possible outcomes at the guilt stage: Guilt or innocence. At sentencing, the situation is quite different. There's greater opportunity for tailoring, which is what the Court requires per Morrison; and there may be a greater need for tailoring because the defendant has been adjudicated guilty. So in the sentencing context where courts have wide discretion, where there's a range of possible sentences, where there's a range of possible outcomes, tailoring -- there's a greater opportunity for tailoring and --
Elena Kagan: So -- so what would the remedy be in a case like this?
Fred A. Rowley, Jr.: Your Honor, we submit that a proper remedy in a case like this would be to reduce Mr. Betterman's sentence by the period of delay, and the Montana Supreme Court concluded that the period of unjustified delay here was 14 months.
Anthony M. Kennedy: Well, he was serving on another sentence. He was serving a sentence for another crime.
Fred A. Rowley, Jr.: Yes, Your Honor. He was -- so he got time served credit on the prior sentence that -- that he was serving. But that period of delay, the 14 months was not credited to his sentence on the bail-jumping sentence, which is the -- the sentence that -- that's at issue here. And we submit that a proportionate remedy, an appropriate remedy, would be to reduce that sentence by the period during which he was denied access to rehabilitation programs and suffered the anxiety that is detailed in his affidavit, and that that would be a -- a way to go. The lower courts have applied that sort of remedy to sentencing delays. And another possible outcome in another case would be simply to vacate the remaining portion of the defendant's sentence. But here we submit that a tailored remedy would be just reducing his sentence by --
Samuel A. Alito, Jr.: What do you make of the fact that the Sixth Amendment says that "the accused shall enjoy the right to a speedy and public trial by an impartial jury"?
Fred A. Rowley, Jr.: Your Honor, the impartial jury clause doesn't cut off or limit the word "trial." We know that because the Court has recognized that the public trial right might apply at a suppression hearing, and there's no jury convened at a suppression hearing. The Court concluded that in Waller. So the impartial jury clause applies to the portions of a criminal prosecution, the stages of a prosecution where a jury is actually impaneled. And if you go back to the purpose of an -- of the impartial jury clause, which was to prevent jurors from offering evidence against the defendant, it makes good sense that it would apply to the stages of a criminal prosecution where a jury is convened.
Sonia Sotomayor: Mr. Rowley, if we were to disagree with you and say that there's no Sixth Amendment right and there was only a due process right, have you waived any argument that you meet the due process standard?
Fred A. Rowley, Jr.: We haven't included that. We didn't include that in the question presented, Your Honor. And the Montana Supreme Court rejected that challenge. It applied a due process test and concluded that under a due process analysis, Mr. Betterman wouldn't be entitled to relief. And that gets to an important point here because --
Sonia Sotomayor: Well, I -- I understand that. So you're admitting you're giving up that its analysis under the Due Process Clause might have been wrong?
Fred A. Rowley, Jr.: Your Honor, we are not advancing that claim here. And so there is a significant difference, we submit, between the due process analysis and the Barker test that this Court has applied under the Sixth Amendment speedy trial right, and -- and that is that under a Barker analysis, prejudice may be presumed. And -- and Barker also addresses specific forms of prejudice that may flow from a delay in a criminal prosecution. The Lovasco test that is applied under a due process analysis does not address some of those specific --
Sonia Sotomayor: I agree, but why do you think Lovasco applies at all, meaning that's to pre-indictment delay where we were creating an exception and saying generally you have -- the State has the period of statute of limitations to bring an action.
Fred A. Rowley, Jr.: Your Honor, that line of --
Sonia Sotomayor: If you want to cut them off from having that right, you need to show actual prejudice.
Fred A. Rowley, Jr.: Your Honor, that's the test that the Montana Supreme Court applied below. It is the test that other courts that have rejected the Sixth Amendment's speedy trial rights application at sentencing, they have pivoted to the due process test in Lovasco, and that test creates a significant burden.
Elena Kagan: For example, Mr. Rowley, just to continue on this line of questioning, there's another case that we have which dealt with civil forfeitures, which is the $8,850 in U.S. currency case where it said, Well, we're going to do a due process analysis, but we're going to take the Barker factors as our test for that due process analysis. So I think one of the questions that Justice Sotomayor is asking is: Why wouldn't that be equally appropriate here? In other words, even if -- and I'm not saying that this is right, but even if there's -- this is -- falls within the due process box rather than the Sixth Amendment box, that there's still a further question as to whether the Lovasco approach is right or whether this U.S. currency approach is right.
Fred A. Rowley, Jr.: Your Honor, that's what the Montana Supreme Court attempted to do. So it eventually modified the Lovasco test and tried to draw on Barker principles in applying it. But if you compare the results in this case to, say, the result in the Burkett case where the court analyzed the specific forms of prejudice that are at issue in a -- a pretrial or presentencing delay situation, and if you don't -- and if you presume prejudice or require the State prosecution to rebut articulated prejudice particularized by -- it's been articulated by the defendant, the court there found a violation, and the Court here, despite modifying Lovasco, did not find a violation. And so the test is still inadequately protective.
Elena Kagan: I guess I'm -- I guess I'm not -- just not sure what you -- you mean by that, because in this other case, the civil forfeiture case, we just said we're going to apply the four factors of Barker. And if that were the result of the due process approach, I mean, it just wouldn't make any difference which box it was in.
Fred A. Rowley, Jr.: That would -- that would certainly be true, Your Honor, but that's not what the Montana Supreme Court here did. So it didn't apply all the factors in Barker. It didn't apply Barker in a straightforward fashion because it approached prejudice the same way that Lovasco did. It required the defendant to make an affirmative showing of prejudice. It required that that showing be substantial. That's different from the Barker test. And we submit also that given the specificity of this right, that it's enumerated in the Sixth Amendment, that it would not be appropriate for the Court to shunt that interest, that set of interests that are enumerated in the Sixth Amendment, into the due process test; that the better approach is to do what the lower courts have done, which is to take the Barker framework, which already exists, and apply it in straightforward fashion to a delay at sentencing.
Sonia Sotomayor: But you're not asking us to do it in a straightforward fashion. That's what Justice Ginsburg asked you, because you're giving up the Barker remedy.
Fred A. Rowley, Jr.: Your Honor, the lower courts, in applying Barker to the sentencing context, have fixed more tailored remedies in recognition of the fact that there may be a difference between a delay at the guilt stage and a delay at sentencing, because now the defendant's been convicted. And so the lower courts, in applying Barker, have done this. They have tailored remedies. They have applied remedies that leave the conviction standing and try to affix some proportionate remedy for the delay at the --
Sonia Sotomayor: So why don't you think that they've done the same thing under the Due Process Clause, recognizing that it is unfair to undo a conviction merely for sentencing delay because you're no longer presumed innocent, you're now guilty?
Fred A. Rowley, Jr.: The key -- yes, Your Honor.
Sonia Sotomayor: Why isn't the due process test that's being applied that modification?
Fred A. Rowley, Jr.: Your Honor, the -- the reason why the due process test, as it's been applied by the lower courts, doesn't do the job is because they continue to require an affirmative showing of prejudice. So they don't presume prejudice which may be significant. Washington, the case out of the Fifth Circuit that we cite, illustrates this point because the court there didn't presume prejudice. And as the Court explained in Doggett, it may be important to presume prejudice because it is sometimes hard to show the effect of a delay on the defendant's defense or other forms of prejudice. And so even the courts that have applied Lovasco, and have modified it, still -- still don't presume prejudice, still don't require the prosecution to make a showing in response to articulated prejudice. They just apply Lovasco and require an affirmative showing of substantial prejudice. So even this modified version that you see in the Montana Supreme Court's opinion below, we submit is inadequate and also not appropriate because there is this enumerated right in the Sixth Amendment and -- and shouldn't be shunted into the --
Samuel A. Alito, Jr.: Well, when you say prejudice should be presumed, do you mean it should be presumed conclusively? Could it be rebutted?
Fred A. Rowley, Jr.: Yes, Your Honor, it could be rebutted. And indeed, in a case like this where the defendant has articulated specific forms of prejudice, I was denied access to rehabilitation programs, I suffered anxiety, the State ought to be able to come in and rebut that presumption. Now here, despite those specific forms of prejudice being set out in the motion to dismiss that Mr. Betterman filed, the State did not offer that evidence. The first evidence that we saw was in the briefing on the merits in this Court. So the State did have the opportunity to make a showing, and it didn't do that.
Samuel A. Alito, Jr.: When you say that the -- the remedy should be tailored, tailored to what? What is -- what is the Court supposed to do, in -- in your view? Select a punishment that is appropriate to deter the State from doing this again, or select a remedy that in some way undoes the -- the damage or the prejudice that's been done to the defendant?
Fred A. Rowley, Jr.: Your Honor, Morrison speaks to this, and it requires that the Court fix a remedy that is tailored to the injury suffered from the constitutional violation.
Samuel A. Alito, Jr.: Okay. Well, then, in that situation, I don't know why reducing the sentence by the length of the unconstitutional delay -- the supposedly unconstitutional delay undoes the damage that's been done by the delay.
Fred A. Rowley, Jr.: Your Honor, it's a proportionate remedy because the defendant was denied. Mr. Betterman was denied access to these rehabilitation programs that aren't only good in themselves, as Barker recognizes, but that also bear on his prospects for parole, on his case for parole or early release. And so the fact that he was denied access to them for a significant period of time bears on his ability to try to win early release. And this Court has recognized that any amount of time that the defendant has to spend in prison as a result of a Sixth Amendment violation is cognizable. And so we submit that it is proportionately tailored, even if the fit isn't perfect.
Samuel A. Alito, Jr.: When Justice Ginsburg asked you about the Federal Speedy Trial Act, and you said that does not cover sentencing. But there are provisions of Montana law that do cover sentencing. Why didn't you seek relief under those?
Fred A. Rowley, Jr.: Your Honor, there are Montana statutes that require that sentencing take place within a reasonable amount of time and foreclose unreasonable delay. But we have been unable to find a case where the defendant was actually able to win some kind of relief on the basis of those statutes. As the Montana Supreme Court decision below reflects, the court's view there was that those statutes incorporate due process principles, and so it would be due process principles that provided the relief. And we haven't found any case that gives any freestanding, independent relief on the basis of those statutes. If you'd look at the Rule 32 cases --
Samuel A. Alito, Jr.: Did you bring a claim under those statutes?
Fred A. Rowley, Jr.: We did not, Your Honor. We did not.
Ruth Bader Ginsburg: Would -- would it be appropriate for the government to respond, yes, there are these disadvantages, but he had certain advantages, too, from being in jail. He was closer to his family. He was closer to his counsel to confer more easily with counsel. Isn't it then we have to consider the pluses as well as the disadvantages?
Fred A. Rowley, Jr.: Certainly, Your Honor. If the -- if the prosecution offered that kind of evidence, it would weigh in the balance, and Barker itself discusses that. It notes that the Speedy Trial Clause is unusual in that delay in some instances may benefit the defendant. But -- but here, where Mr. Betterman has submitted an affidavit, and also in the initial motion detailed the prejudice that he suffered from this delay, inability to access these programs that he was ordered to complete as part of the suspended portion of his sentence that under Montana regulations would bear directly on his case for parole, the prejudice is palpable. It resonates strongly with Barker itself and with Smith v. Hooey where the Court noted that even if you're incarcerated on a prior charge, you may yet suffer prejudice as a result of delay in a subsequent prosecution. So back to Justice Sotomayor's question about Lovasco, and about the difference between these two tests. We submit that if you compare the outcome here and compare the outcome in Burkett, Burkett involved a defendant who advanced a very similar theory of prejudice. The theory was he was denied access to rehabilitation programs and that he suffered anxiety. The defendant testified to that effect, and the Third Circuit concluded that in the absence of contrary evidence, that that was enough to state or to show a Sixth Amendment violation. Whereas in -- in the decision below, the Montana Supreme Court placed the burden squarely on Mr. Betterman to make an affirmative showing of substantial prejudice. So even though he submitted this affidavit that detailed the prejudice, the Montana Supreme Court deemed it speculative.
Sonia Sotomayor: My problem is with this use of -- of language. Prejudice is prejudice. And they -- they seem to be arguing that substantial prejudice means something like actual damages, that you can point to something that I've actually been damaged by either having served longer than the sentence that's ultimately imposed, or something else like that. But why are you even taking on the substantial damage definition? Why aren't you just arguing that prejudice is prejudice?
Fred A. Rowley, Jr.: Well, it is, Your Honor, but Lovasco actually uses the word "actually." So the Lovasco test that was applied by the Montana Supreme Court --
Sonia Sotomayor: You're still -- you're still in the Lovasco test?
Fred A. Rowley, Jr.: Yes. I mean, if -- if the court -- that's the court -- that's the due process test that the court has applied. Now, if the court were to say that the Barker test, including the way that Barker approaches prejudice, could be actionable under the Due Process Clause, that would be a different story, but simply not the way that lower courts have examined it. That would effectively give a defendant Sixth Amendment relief under the Due Process Clause. But that is not what the Montana Supreme Court did, Your Honor, and that is not the way that it applied.
Sonia Sotomayor: And that's not the way you're arguing the case.
Fred A. Rowley, Jr.: Well, Your Honor, we didn't preserve a -- a due process challenge. Our challenge is solely under the Sixth Amendment. It's set forward in -- in the -- in the question presented and, indeed, in the lower courts we pressed a Sixth Amendment right. But to Your Honor's question, if the court were to take that Sixth Amendment analysis and drop it in the due process context, the defendant would certainly get the same relief. But we submit that just given that the right is enumerated in the Sixth Amendment, that it ought to -- that the relief ought to be granted under that clause and not shunted into due process. If there are no further questions, I'd like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, counsel. General Schowengerdt.
Dale Schowengerdt: Mr. Chief Justice, and may it please the Court: The Speedy Trial Clause does not include sentencing delay because its purpose is to protect a presumptively innocent defendant from the harms associated with a criminal charge. That purpose is consistent with the text in history of the clause. It's consistent with the remedy that this Court has said must apply to speedy trial violations. And, importantly, it leaves defendants with other means of challenging unjustified sentencing delay without requiring the court having to modify both the test and the remedy for a speedy trial violation. The Speedy Trial Clause is unique among Sixth Amendment rights because it goes to the heart of the government's authority to try a presumptively innocent defendant at all. If the government unjustifiably delays, it may forfeit the right, which is why dismissal is the remedy. Sentencing delay doesn't impact the validity of trial. It doesn't impact the authority of the government to bring a defendant to trial. And after conviction, none of the interests that are supported by the Speedy Trial Clause apply. For example, there can be no anxiety over public accusation because the accusation has been confirmed. At the moment of conviction, a defendant's liberty is justly deprived because -- and that's why bail is presumptively unavailable at that point.
Ruth Bader Ginsburg: When, in your view -- let's say we agree with you that speedy trial isn't the right rubric. When would a delay in sentencing amount to a due process violation?
Dale Schowengerdt: I think if a -- if a defendant could show prejudice, for example, if he was not able to present mitigating evidence at sentencing because of passage of time, a lost witness, that -- that may be one example. If he's serving a -- if he's awaiting sentencing for a time longer than the maximum sentence for -- for the charge, that would -- that would be another example.
Ruth Bader Ginsburg: But you -- you would not count factors of the kind that were raised here, that is, I could have gotten into a drug treatment program in the penitentiary that's not available in the jail. You would not include that?
Dale Schowengerdt: That's right, Justice Ginsburg. And -- and the reason why it -- it's too speculative a basis, you know, it's speculative whether rehabilitative programs or parole would have been available and whether the defendant would have taken advantage of them. And I -- this case is -- is a good example of that. It's not in the record because it happened after the Montana Supreme Court's decision, but the Petitioner was -- was offered parole in March of 2014 on -- conditioned on that he would fill -- fulfill a rehabilitation program. He started the rehabilitation program, and 16 days later he quit, quit it, so his parole was rescinded. And that's -- that's the sort of speculative basis -- I think it's too speculative a basis to -- to give a remedy. But the defendant's always able to file a mandamus claim if he -- if he's -- the sentence is harming him. He can first ask to be sentenced. The defendant in this case didn't mention it until nine months into the progress -- process.
Elena Kagan: General, there -- there may be some real differences between the pretrial context and the presentencing context, but one which seems quite similar is the potential of delay to impair the defense. So I guess I would like you to address that, because, you know, as the Petitioners point out, in most cases these days, most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage, given that we don't have very many trials anymore. And certainly Barker and certainly Doggett made it very clear that this was an important interest in thinking about the speedy trial right.
Dale Schowengerdt: Yes, Justice Kagan, a few points. First of all, I would -- I would say that that danger is equally at issue in pre-indictment delay, delay involving interlocutory appeal, which the court held was not included in the speedy trial analysis in Loud Hawk v. United States. Second -- so that can be remedied by -- by due process, even if it's a similar interest. Second, there's --
Elena Kagan: Well, doesn't -- Lovasco really talks about a whole different set of considerations in the pretrial context, which simply don't apply once the indictment -- once the accusation has been made.
Dale Schowengerdt: Perhaps not. But I think it would apply in the -- in the interlocutory appeal context or even -- or even appeal in resentencing. I mean, those same considerations would be at issue. The delay could impact or retrial -- if there's a retrial ordered on remand in a case. And those are interests the Due Process Clause can -- can remedy. But the other -- the other point is that sentencing is different. I mean, there -- the same rules don't apply. And usually, the same facts that aren't -- aren't at issue. I mean, given the ubiquity of plea agreements, so often the -- the real action is in the plea bargaining, anyway. And -- and the prosecutor and the defendant agree on a sentence or a range of sentence, and then -- and then that's implemented by the judge.
Elena Kagan: Well, sometimes, but there may also be real factual disputes. It might be about the amount of loss. It might be about the amount of drug quantity. It might be about prior bad acts. It might be about a whole range of things which are the kinds of things that we actually typically think of as contested issues at trial.
Dale Schowengerdt: That's true. I would argue the due process provides adequate remedy in that situation, but there is different standard, too. I mean, the rules of evidence don't apply. The Confrontation Clause doesn't apply. There's no burden to prove facts beyond a reasonable doubt. So it is a different type of proceeding. And our argument is that -- that due process can remedy any prejudice that happened -- -
Sonia Sotomayor: That's the problem. How do you prove -- I mean, let's take an indeterminate sentence, more or less like this one, where you have the possibility of a sentence between zero and ten years. How do you -- how does the judge know whether -- if the defendant is brought before him at year eight, eight and a half, nine, how does the judge know that if the defendant had been brought to him at year five, he would have given him a six-year sentence instead of an eight? Don't you think that there's a lot of pressure on the judge if the defendant's hearing is delayed for eight years to, say, time served? That really -- don't -- don't you think there's prejudice in the fact that an unexplained delay caused by the State more likely than not had some sort of effect on the sentence?
Dale Schowengerdt: Well, I think in that case, the defendant should -- if it's that lengthy of a delay, he should ask to be sentenced. And like I say, he can -- he can always file a mandamus petition in that context.
Sonia Sotomayor: Look, this defendant asked to be sentenced faster. He was told that there were other issues the court was dealing with. So a couple of the months were not his fault, clearly not his fault, it was an administrative fault.
Dale Schowengerdt: That's true. There was -- not all the delay was his fault. But he didn't -- he didn't mention anything about wanting to be sentenced until nine months into that process when he filed a --
Sonia Sotomayor: Well, that may go to the issue of whether, under a Barker analysis or any analysis, he should be heard to complain about the delay, but I still am not quite sure why your definition of substantial prejudice or actual prejudice should be the controlling one.
Dale Schowengerdt: I -- I think the court said -- even the court -- lower courts that have applied the Speedy Trial Clause to sentencing delay, they -- you know, the Tenth Circuit, for example, in Perez v. Sullivan, they assume that it applies, on the one hand, based on the Court's decision in Pollard, but then on the other, they recognize that the interests don't apply. They -- they recognize that in order to fashion a remedy in a post-conviction setting, the defendant has to show prejudice. In addition, it takes into account that the -- that the balance is shifted. The person is no longer accused, but convicted, and -- and his presumption of innocence has vanished.
Anthony M. Kennedy: Assume -- assume that there is a prompt trial, then a very substantial delay in sentencing, and then there's an appeal, and the appeal results in new trial. Does the Speedy Trial Act then apply when the defendant says that my second trial was delayed? Are there cases on that?
Dale Schowengerdt: I don't -- I don't think so. I think generally when courts -- lower courts are applying delay in the appellate context, resentencing context, they apply due process. And I can't think --
Anthony M. Kennedy: Because if that delay were attributable to the State, it seems to me there would be a Speedy Trial Act violation in that connection.
Dale Schowengerdt: There may be. And -- and lower courts, when they're look at appellate delay or delay in resentencing, I mean, it's a -- it's a pretty similar test as far as the Speedy Trial Clause is concerned when courts are applying at presentencing, because it requires a showing of prejudice, and it evaluates the government's reasons for the delay.
Anthony M. Kennedy: But -- but you're not aware of any cases of the kind I've indicated where they -- the Speedy Trial Act then clicks in for the second prosecution?
Dale Schowengerdt: I'm not aware of any cases.
Samuel A. Alito, Jr.: Under Montana law, can a -- a defendant who suffers inordinate delay in sentencing get relief?
Dale Schowengerdt: Certainly. There's -- there are rules on delay, prohibiting delay, just like there are in most States, if not every State. And under the Federal rules there's specific procedures that put into place --
Ruth Bader Ginsburg: But Mr. Rowley indicated that there -- there's the rules there, but no defendants have had the benefit of getting it -- their sentences shortened because of those.
Dale Schowengerdt: Well, I -- I'm not aware of any defendants pressing claims, any reported decisions on those -- those claims, one way or the other. But a defendant always has that option, and especially under mandamus. And -- and I think at that point, fashioning a remedy just for delay, I think, is difficult because my friend mentioned 14 years, but the delay -- I mean, 14 months. The delay wasn't really 14 months of unjustified delay. Like I said, he didn't make his claim until nine months. But before that, there's going -- always going to be some delay and the --
Ruth Bader Ginsburg: But the court did -- did say that it -- the delay was principally caused by the court's institutional problems.
Dale Schowengerdt: It -- it was. There were -- the court took a while to -- to decide post-conviction motions, and it was institutional delay. I don't -- I don't disagree with that. But my point is that there's always going to be some delay in the processes. And so to figure out what the remedy would be simply by -- by including the entire 14 months, I think, would be a windfall to the defendant, especially in this case where he's -- he was receiving credit on his sentence for --
John G. Roberts, Jr.: Is that typical? Is it typical for a sentencing court to give credit for time served?
Dale Schowengerdt: Yes. In fact, it's statutory.
John G. Roberts, Jr.: Is there any way they can do that when you have a indeterminant range, sentence is zero to ten? Is there any way they can do that? Can they say it should be zero to nine in this case because of the delay?
Dale Schowengerdt: I'm -- I'm not sure. I mean, I think a judge could do that. I mean, the -- in his -- in the Petitioner's first conviction on domestic assault, he was awarded 53 days of credit for -- against his sentence. And the court specifically stated on the record that he took that into account and applied that against -- against his sentence.
Sonia Sotomayor: Do you think the courts are -- the judges are incapable of making determinations of a remedy?
Dale Schowengerdt: Certainly not, no. I think -- I -- and I think under due process, they -- you know, that's -- that's the advantage of due process, if courts can fashion a remedy to target the specific prejudice. And I think they're well equipped to do that.
Stephen G. Breyer: Where did -- where did it come from that Barker v. Wingo prejudice is supposed to be assumed? I was just looking at the case. It doesn't say that. In fact, they analyze prejudice.
Dale Schowengerdt: That's right. The -- the Court has only presumed prejudice, that I'm aware of, in one case, Doggett, and --
Stephen G. Breyer: Have we held that?
Dale Schowengerdt: You held that -- there -- two -- two things: Extraordinary delay. It was an eight and a half-year delay between when a person was indicted and when they were brought to trial. And then it was -- there -- the Court said there was no justifiable reason for that delay.
Stephen G. Breyer: No, no. My question is you heard your -- your brother counsel say that Barker v. Wingo, if it applied, would presume prejudice. So I've just been looking at that. And in the case itself it doesn't presume prejudice.
Dale Schowengerdt: It does not.
Stephen G. Breyer: It analyzes whether there was or was not prejudice. So I want to know where that requirement of presumed prejudice comes from.
Dale Schowengerdt: The first -- the first factor in Barker is to -- to analyze what --
Stephen G. Breyer: I know the four factors. I have them in front of me.
Dale Schowengerdt: Yes. That's the presumptive prejudice factor gets you -- gets you to the test. So it triggers the test. I think my friend is referring to the Doggett case, though. That's -- and in his brief, he cites Doggett as -- as sort of this, at some point, if the delay is so excessive -- and I -- I take it that he's not arguing --
Stephen G. Breyer: All right. So -- so it -- I mean, obviously, it's a 20-year delay. The person won't even remember who he was going to call, and all the witnesses will be gone and so forth. So I think it's fair to say there was prejudice in such a case, if that's what it's about. So if it isn't presumed all the time, do you have any objection, as he apparently does not have any objection, to our saying you're right. It's the Due Process Clause. Now, in applying the Due Process Clause to cases where the sentencing has been unduly delayed or that is the claim, you -- the Court should apply the factors as set out in Barker v. Wingo.
Dale Schowengerdt: And there's a couple problems with that. One, Barker was specifically designed to take into account pretrial interests under the Speedy Trial Clause. And in the case that Justice Kagan mentioned, the forfeiture case, that was a pre-adjudication case, so it fit in that context. So applying Barker, courts have done it, applied it --
Sonia Sotomayor: Sorry, that was a forfeiture case.
Dale Schowengerdt: Correct.
Sonia Sotomayor: And that's a penalty after adjudication. The forfeiture doesn't start until someone has been found --
Dale Schowengerdt: I think it was a -- I'm sorry, it was a pre -- basically, property was taken before --
Stephen G. Breyer: Whatever the case is, I'd like to get an answer to my question.
Dale Schowengerdt: Sure.
Stephen G. Breyer: It says the Court should balance four factors: Length of delay, the reason for delay, the defendant's assertion of his right, and prejudice to the defendant. Now, if I quote that sentence and say those are the factors that should be taken into account under the Due Process Clause, do you have any objection to that?
Dale Schowengerdt: Prejudice needs to take the forefront in that analysis.
Stephen G. Breyer: I should just reverse the four?
Dale Schowengerdt: Well, the problem with Barker is it held -- it holds that -- I mean, in the postconviction setting is that none of the factors are necessary. So prejudice doesn't necessarily have to be shown in Barker. Lower courts have modified that and said in the postconviction setting, a defendant has to show prejudice. In the -- the test that lower courts use, the modified Barker test looks a lot like Lovasco. In fact, it say it's indistinguishable because prejudice. And prejudice is the key, to the answer to your question, Justice Breyer, that in a postconviction setting, that's what's necessary. And also, to my friend's point that the Petitioner made claims of prejudice, I'd point the Court to Joint Appendix 66 and 68 where he -- he made his claim of prejudice in -- in the space of a couple paragraphs. And this sort of illustrates the problem the State has in rebutting claims of prejudice that aren't substantiated. He didn't file his -- his affidavit, which was still fairly bare, but at least more substantiated, until three months after he filed his motion, and the motion was denied, his motion to reconsider. So I think defendants in this context have to come forward with some showing of prejudice.
Elena Kagan: Well, that -- that might present some challenges, but there are also challenges on the other side. It's often hard to show that people have forgotten things, that, you know, they've forgotten them. So unless there's something like a witness dying, it's very difficult to make the kind of showing that you are suggesting. And that's why Barker, you know, left things flexible and said, you know, in most cases, we really are going to look at prejudice. We're going to see what you have to say for yourself. In some extreme cases, we're not going to do that. So, again, I guess I'm back with Justice Breyer's question as to, yes, this is a different context, but why don't all the same considerations apply?
Dale Schowengerdt: The court has never presumed prejudice, except in the extreme --
Elena Kagan: I wasn't suggesting presumed prejudice, because Barker doesn't suggest presumed prejudice. As you say, the difference that Barker has with respect to your test is simply that Barker says it's not always necessary to show prejudice, that there are extreme circumstances in which we'll just take that for granted.
Dale Schowengerdt: I don't think that takes into consideration the change that happens at conviction. I mean, there's a substantial change. The -- the interests of the society take the forefront. And to give -- I think it gives the defendant a windfall if -- if he can come to court and say this, you know, delay has prejudiced me, but I'm not really going to --
Elena Kagan: Well, but if you think that a very significant part of this rule has to do with impairment of the ability to defend yourself, and if you think that that kind of consideration applies just as well at the sentencing phase as it does at the conviction stage, maybe in most cases more so, given that most of the action these days takes place in the sentencing phase, I guess I just wouldn't see why there's any need for a different rule, especially given the level of flexibility that Barker gives. It's not like Barker says we're presuming prejudice in all circumstances. Barker is saying prejudice is one of the four factors. And it's a very important one. And usually we'll expect people to come in with some kind of showing, except for in extreme cases when not.
Dale Schowengerdt: I think it comes down to a remedy. You know, the remedy for a speedy trial violation is dismissal. So in the postconviction --
Elena Kagan: Well, that's what we said in Barker when we were talking about a pretrial case, but the remedy in this case would be different.
Dale Schowengerdt: Right. But it would be more difficult. If the defendant doesn't have to show prejudice, I'm not -- I'm not sure how you -- what you -- what the court would remedy. And that's one of the reasons that the prejudice should be required, because there's got to be something, something that -- that the court is actually remedying. And even in the speedy trial cases, the courts usually -- usually require some showing --
Samuel A. Alito, Jr.: When it comes to the determination of facts that are relevant at sentencing, that does not take place exclusively, or probably even it doesn't take place primarily at the time when the sentence is pronounced; isn't that correct? It -- it takes place during the preparation of the presentence report, at least in the Federal system. Is that true in Montana as well?
Dale Schowengerdt: May I answer?
John G. Roberts, Jr.: You may.
Dale Schowengerdt: Yes -- yes, Justice Alito, that's exactly right. Most of the facts are analyzed through that presentence report, and speedy -- and the sentencing hearings at that point are pretty drab affairs because most of the facts have been resolved.
John G. Roberts, Jr.: Thank you, counsel. Ms. Anders.
Ginger D. Anders: Mr. Chief Justice, and may it please the Court: To go right to Justice Kagan's concern about the possibility that a defendant's defense at sentencing could be impaired, we think the due process analysis is adequate to address that. And we think that's so because, although the defendant has to show prejudice, the prejudice standard should essentially be the same one that applies in cases of other violations of constitutional rights that may affect the defendant's ability to defend at sentencing. And that is the defendant should have to show that there is a reasonable probability that the result would have been different, the outcome would have been different. That is the same standard that's used in cases of Brady violations of ineffective assistance of counsel. It's one that doesn't require the defendant to show by a preponderance that he would have received a different sentence or anything like that. He just has to show that -- that he suffered prejudice. That -- that when -- when you take all the evidence into account, it puts the outcome in a different light.
Elena Kagan: And how did you see that as different from what goes on under the Barker analysis?
Ginger D. Anders: Well, I think under Barker, the Court does allow for prejudice to be presumed in some cases, so the defendant does not have to show -- make any kind of concrete or particularized showing of prejudice. We think that -- that in the case of sentencing -- prejudice at sentencing that the defendant should have to show some concrete effect -- some concrete effect --
Elena Kagan: But I take it that we've said that that's the case where the delay is super-long, so take a delay of eight or ten years. And, you know, why is it in that very extreme circumstance that the defendant should make -- that the defendant should have to make any particularized showing?
Ginger D. Anders: Well, I think the defendant may well be able to make a particularized showing in that case, but I think -- I think there are -- there are two primary reasons that it's just not appropriate in any case for prejudice to be presumed at sentencing. And -- and the first one of those is that, I think, you know, the constitutional rule has to take into account the wide range of sentencing proceedings here. So when we're talking about pretrial delay, I think, you know, all trials involve historical facts that, in theory, could be affected, could be prejudiced by delay. That's not the case of all sentencing hearings. There are fully discretionary systems where -- where historical facts would not have as great an effect. There are sentencings that turn mostly on the present characteristics of the defendant, rather than on -- on historical facts. So I think -- I think prejudice should not be presumed in any case, but in a situation where the defendant actually will be affected, the due process analysis is tailored enough to allow him to have relief in that situation. And I think the second reason it's not appropriate ever to presume prejudice at sentencing is that the conviction changes everything. It -- once -- once a defendant has been convicted, there's a strong societal interest in giving him an appropriate sentence. And so to give him a remedy for presentencing delay, I think, involves -- generally, the remedy is going to involve lowering what would otherwise be an appropriate sentence. So in that context, I think it's appropriate to require the defendant to show some actual injury in order to justify the societal cost of lowering an otherwise appropriate sentence.
John G. Roberts, Jr.: In the -- in the Federal system, do judges typically give credit for time served?
Ginger D. Anders: They do, yes.
Elena Kagan: Your rule would apply to capital cases, as well?
Ginger D. Anders: Well, I think capital cases may be different. I think the -- the Court has said that in some context, for instance, double jeopardy, the -- the capital sentencing is essentially, in some respects, an extension of the trial. So in that situation, you may say the same thing with respect to -- to speedy trial claims, as -- as well.
Elena Kagan: I'm sorry. Could you say a little bit more than that? You would -- you would say because the penalty phase really is a trial?
Ginger D. Anders: I think there are some respects in which you treat the -- the penalty phase as a -- as an extension of the trial, yes. I -- I think, finally, the other reason that -- that it's not appropriate to presume prejudice at sentencing is that in the pre-indictment context, of course, the Court has said that the core interests of the Speedy Trial Clause aren't implicated; and, therefore, even though that kind of delay, pre-arrest delay, may have the same sort of effects on -- on the trial that are -- you know, prejudice that is hard to articulate, that --
Ruth Bader Ginsburg: In that situation, the defendant is at liberty in a pre-indictment delay?
Ginger D. Anders: That's right. And that's -- that's why the core concerns of the Speedy Trial Clause aren't implicated in that scenario, that -- that -- the Speedy Trial Clause isn't implicated because the defendant's liberty interest hasn't been -- hasn't been restrained by the indictment. But a similar thing happens after conviction. At that point, the defendant doesn't have a cognizable liberty interest -- a cognizable interest in avoiding the -- the detriments that can be imposed on him as a result of the conviction and as an incident of the sentence.
Sonia Sotomayor: If we take out the "presumed prejudice" which is not part of the Barker analysis, it just says -- defines "prejudice," how would using the Barker standard in saying, no presumed prejudice, you have to prove some prejudice, how would that change the analysis?
Ginger D. Anders: Well, I think that -- I think there's one other difference, I think, in -- in the two approaches, aside from the presumed prejudice; and that is what counts as cognizable prejudice. So I think in -- in the due process context, the Court said in Marion that the type of prejudice we're concerned about is actual prejudice to the defense of a criminal case.
Sonia Sotomayor: That's for the pretrial.
Ginger D. Anders: Right, but what that -- we think what that means in the sentencing context is that the defendant should have to show a concrete effect on his defense at sentencing; in other words, the probability that the result would have been different or, you know, that he's been serving longer time than he should have been. But I think it also means that -- that things like -- like access to rehabilitation programs, anxiety, that those would not be independently cognizable as prejudice under the due process inquiry.
Sonia Sotomayor: You think that if a defendant was writing to a judge every week saying, I'm anxious, I really need to know what my sentence is, and the judge ignores it for a period of time, that that defendant still has to prove something more? That's not the facts of this case. There was no complaint for nine months. So whatever treatment the defendant started, started -- for anxiety started well before any time had elapsed in this sentence. But you don't think that defendant is entitled to any consideration by a -- a trial court, or that we should be barring a trial court from considering that?
Ginger D. Anders: And two points with respect to that. I mean, certainly if a -- if a defendant is asking for sentencing and the court is ignoring that, that would be inappropriate. The defendant would obviously have -- have other remedies, I think, at that point after requesting sentence, perhaps mandamus, perhaps a habeas petition. But if all -- if the only prejudice he's claiming is anxiety, then -- then yes, I do think that that would not be cognizable under due process. And I think that's -- that's really because once a defendant has been convicted, he can -- he now can be sentenced. He can be subject to the practical deprivations that are an incident of sentence. And I -- I think that after he has been sentenced, of course, he doesn't have an interest in not being anxious, that kind of thing. And so I think it would be very odd to say that he has a -- a sentencing delay-related interest in that kind of claim that could be the basis for a constitutional violation.
Elena Kagan: Ms. Anders, I'm sorry, one of the things that strikes me as odd about your argument is that you are suggesting that a remedy would be appropriate in certain circumstances. You just want to put this under the Due Process Clause. And what's -- what's odd is that, as you say, that in this post-conviction context, the president -- the -- the defendant has been deprived of any liberty interest, and yet the Due Process Clause talks about a deprivation of liberty, but the defendant no longer has a liberty interest. So it seems a very odd place to park this right and this remedy, the Due Process Clause, in this context. It seems much more natural that you would do it under the Speedy Trial Clause on the assumption -- on the -- on the view that the -- that the trial has to do with both the adjudication of guilt and the determination of the proper sentence.
Ginger D. Anders: Well, two points with respect to that. I think if the Court were to say -- to -- to use the standard that -- that we propose, so essentially no presumed prejudice, only certain things are cognizable as prejudice, and -- and the remedy would not always be -- vacatur the conviction, then I think we probably wouldn't have a practical objection to calling that a Speedy Trial Clause, right? What we're concerned about is the substantive standard and -- and the remedy. But I do think after a defendant has been convicted, the societal interests have shifted; and that's why it's appropriate, I think, to apply due process. The defendant has a liberty interest in the length of his sentence. He has a -- he has a due process interest in a fundamentally fair sentencing proceeding. And so we think due process nicely captures that interest the defendant has. And so the Court has said before -- before rest, before speedy trial kicks in, due process applies. And it provides a right. And we think that after the defendant no longer has the interest protected by the Speedy Trial Clause, due process can, again, provide the proper approach. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. Mr. Rowley, you have 10 minutes remaining.
Fred A. Rowley, Jr.: The standard for prejudice articulated by the United States shows well why due process protections are ill-suited to the specific interests protected by the speedy trial right. The United States suggested that the defendant would have to show that the outcome would have been different, consistent with Lovasco. The only form of prejudice that would be cognizable under that test is an effect on the defendant's defense at sentence. But as Barker illustrates, and Smith v. Hooey also illustrates, there are other forms of prejudice that are specific to the Speedy Trial Clause that may apply to a defendant and, indeed, may apply to a defendant even after they've been convicted. So, for example, in Smith v. Hooey, the defendant had already been incarcerated on a prior Federal charge. That defendant's liberty interests were already impinged, and yet the Court noted that the delay from the follow-on prosecution could still prejudice him. So this notion that you would apply the due process test or the Lovasco test and require a showing, an affirmative showing that the defendant would have had a different outcome at sentencing but for the delay really highlights why due process is inadequately suited. Justice Kagan's question points to another anomaly in the test that has been proposed by the government because of this focus on liberty interests. And in -- in Smith v. Hooey, the defendant had already --
Anthony M. Kennedy: Or I suppose if it isn't liberty, it's not incorporated under the Fourteenth Amendment, anyway.
Fred A. Rowley, Jr.: Yes, Your Honor, but -- but --
Anthony M. Kennedy: I mean, the Sixth Amendment applies only to the Federal government, and it's only because of the Fourteenth Amendment liberty that it applies to the States. So liberty is involved.
Fred A. Rowley, Jr.: Yes, Your Honor, but the -- the position that the State of Montana and the United States has taken is that at sentencing, once a defendant has been convicted, they don't have a specific liberty interest of the kind that was recognized in Barker and the kind that was recognized in Smith v. Hooey; and that is the interest in rehabilitation, in accessing rehabilitation programs that could be affected by a delay in a prosecution.
Stephen G. Breyer: Isn't -- his liberty is certainly affected. He's in jail. So he's sitting there in jail. Tell him you're free. I don't think he believes it.
Fred A. Rowley, Jr.: Well --
Stephen G. Breyer: And -- and then the question is: Is -- at some point, is being in jail a deprivation of his liberty without due process? Because the Due Process Clause would require application of sentencing under -- and when it's -- it's not due process when, say, Barker v. Wingo or some violation is violated. I don't see a problem with liberty.
Fred A. Rowley, Jr.: Well, Your Honor, the point is simply that the Speedy Trial test that the court articulated in Barker is better suited to the specific forms of prejudice that are at issue in this case, because it addresses this concern with even a defendant who's been guilty, accessing rehabilitation programs, or the anxiety that that defendant may feel at the sentencing stage. And this gets to another point that the United States made, and that is that -- that the conviction changes everything, because the concerns that the court articulated in Barker may be yet more significant at the sentencing stage, given that most convictions today result from guilty pleas. And so the fact that a defendant -- their defense may be impaired by a delay in criminal proceedings, may be more significant at the sentencing stage because it may be the only place where the defendant challenges an upward adjustment or contests facts. The fact that the defendant may need to access rehabilitation programs may be more pronounced at sentencing because the defendant's already been convicted, they're going to serve time, and they want to get access to the programs that they'll need to get parole as soon as -- as possible. So we submit that -- that Barker is the appropriate test; that if the Court agrees that Barker -- Barker's the appropriate framework, that the proper right to ground that analysis in is the Sixth Amendment and not the Due Process Clause. And that is particularly so because of the antecedents of the Due Process Clause which -- which apply, not just to the -- the guilt stage of the prosecution, but also to sentencing. And why? Because at -- at common law, and at the time of the Framing -- Framing, sentencing and -- and the jury verdict were so closely bound. And -- and the right is rooted in this practice of circuit justices riding into the countryside and resolving cases. Not just presiding over jury trials, but resolving cases. They had the power to hear and decide those cases. Their jurisdiction was from the beginning of the prosecution through the end. So we think the Sixth Amendment is the appropriate basis for this right.
Samuel A. Alito, Jr.: Well, at the time of the adoption of the Sixth Amendment, weren't post-trial but presentencing delays fairly common?
Fred A. Rowley, Jr.: Your Honor, the Stevens Treatise says that at the time, at common law, that sentencing took place usually -- not always --
Samuel A. Alito, Jr.: Usually.
Fred A. Rowley, Jr.: Usually soon thereafter.
Samuel A. Alito, Jr.: But -- but not always.
Fred A. Rowley, Jr.: That's right, Your Honor. But as a general rule, the sentencing did take place soon after the -- the jury issued its verdict, and oftentimes immediately. And the cases that we catalog in our appendix illustrate that point. But it's not just that. As the Court has recognized, the sentence was usually automatic. It flowed from the jury verdict. And so --
Samuel A. Alito, Jr.: But that's just not true as a historical matter.
Fred A. Rowley, Jr.: Well, it --
Samuel A. Alito, Jr.: It's not true as a historical matter. If you look at the -- at the first criminal provisions that were enacted by Congress, they called for a range of -- of sentences, and the -- and the sentencing judge had to select within that range.
Fred A. Rowley, Jr.: Justice Alito --
Samuel A. Alito, Jr.: I'm talking about the early 18th century, not when you say that it was automatic.
Fred A. Rowley, Jr.: Your Honor, I'm referring to the observations that this Court has made in the Apprendi line of cases. And it is the early part of the 18th century, because as the Court has noted -- I'm sorry -- in the early part of the 19th century, because as the Court has noted, States started to adopt statutes that gave sentencing courts more discretion. But certainly at common law, certainly at the time of the Founding, the Court noted that typically the verdict dictated the sentence. And so this right that was created --
Samuel A. Alito, Jr.: That just isn't true. We don't have the right to change history. It isn't true. The first -- if you look at the very first criminal provisions that were enacted by Congress, the first Congress, they were not. It was not determinate sentencing.
Fred A. Rowley, Jr.: Your Honor, many of the -- for many crimes, serious crimes at common law, and even for some that today we would consider not so serious, usually the penalty was death. And so there was this close relationship. The Court has called it a close relationship between the verdict and sentencing. And we submit that that, together with the way that the process was consulted -- was conducted, shows that the right was created to cover the whole proceeding, through the imposition or pronouncement of sentence. If there are no further questions.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Warren E. Burger: -- as soon as counsel are ready.
Kenneth M. Schwartz: Mr. Chief Justice and may it please the Court. In yesterday's session of the Court there were some questions propounded to counsel for the petitioner by Mr. Justice White. I'd like to address myself for a couple of moments to those questions and answers. One of the questions propounded to counsel was whether or not the remedies afforded the parties under the present posture of the law is reciprocal, and I can state that as it stands today the parties to the collective-bargaining agreement do have -- there is no disparity between the parties. All the Norris-LaGuardia Act does is prevent either the parties to get a judicial order against the other for conduct that they may find is to be an alleged violation of the Act. The Norris-LaGuardia Act does not prevent either party from getting a judicial order in order to enforce or require the other party to comply with them a provision in their agreement affording the opportunity for a voluntary adjustment of their proceedings.
Warren E. Burger: I'm not sure I track you on that counsel.
Kenneth M. Schwartz: Norris-LaGuardia simply prevents either the parties to the collective-bargaining agreement to get a judicial order from any court.
Warren E. Burger: Prevents them?
Kenneth M. Schwartz: Prevents them, they do that, yes. The only exception is, it does afford the parties an opportunity to go to a court to compel arbitration which is a matter set forth between the parties a voluntary method for them to adjust their disputes.
Byron R. White: But not to enforce the no-strike clause if it's violated by the Union?
Kenneth M. Schwartz: The no-strike clause in the contract --
Byron R. White: Does or does not the Norris-LaGuardia Act bar any court from enjoining a strike in violation of the no-strike clause while the arbitration goes on?
Kenneth M. Schwartz: It does bar federal courts from enjoining the action, yes.
Byron R. White: But why doesn't it bar the order to arbitration?
Kenneth M. Schwartz: Why does it not? The -- we have a situation in the collective-bargaining --
Byron R. White: Simply enforcing -- they're simply enforcing a term of the contract.
Kenneth M. Schwartz: They're enforcing a term of the contract but the parties have agreed upon a method of adjustment of their disputes. In their collective-bargaining agreement, if you had an injunction or temporary restraining order prior to the arbitration you have taken away from the parties the rights they have agreed upon and bargained for in their collective-bargaining agreement. They have bargained for and this Court said so in Steelworkers Trilogy. They have bargained for the expertise of an arbitrator. If they are permitted either party or both parties are permitted to go to courts when they have an argument or dispute under the collective-bargaining agreement, and the defect takes away any of the powers of the arbitrator may have in settling that dispute.
Byron R. White: Well, if they would -- they agreed on an arbitrator to settle the dispute, why does the Union strike?
Kenneth M. Schwartz: The strike situation is no different than the employer taking a -- himself violating the contract by say discharging some employees or by bringing in as he did in this case, bringing in a crew, none bargaining unit people into a store to do bargaining unit work. The Union at that time of course could not get an injunction to restrain them from doing that. They're irreparable injury that was referred to by counsel in regard to the strike activity of the Union. There's no different than the irreparable injury in so far as an individual his discharge is concerned, then the individual although the counsel says he can recover in damages, we say that in regard to a strike.T The company can respond in damages in regard that arbitrator finding it to be so. The idea being that the parties have bargained for a method of adjustment of their disputes. A strike is a violate -- may be a violation of the collective-bargaining agreement, it may not depending upon what the strike is for. Contrary to that, the employer can take actions in regard to demotions, promotions, subcontracting and all issues that the collective-bargaining agreement provides for they can violate it. Now, the Union certainly cannot come in because of Norris-LaGuardia and get an injunction and I'm not saying they should because the Union and employer have agreed upon a method of bargaining. In that bargain they have said, that we are going ahead and have our disputes resolve by an impartial arbitrator.
Byron R. White: And in the contract the Union has also said, we’ll not strike.
Kenneth M. Schwartz: Well, the employer had said for example he will not discharge employees without just cause. He has said he will not subcontract work. He has said as he did in this case that he will not bring in others not parties to the collective-bargaining agreement and perform their work as suppose to be confirmed by the bargaining agreement. These are alleged violations to the contract. Here, the employers alleged to violate the contract and the employers says, the Union has violated the contract by violating to no-strike clause.
Warren E. Burger: But aren't both parties better off if immediately from the occurring the arbitration process is invoked?
Kenneth M. Schwartz: Well, yes the party agreed --
Warren E. Burger: Of course the status quo remains as it is. They preserve the status quo and go ahead to arbitrate whatever issue it is, the Union's issue or the employer's issue.
Kenneth M. Schwartz: You say preserve the status quo, Mr. Chief Justice?
Warren E. Burger: Stay working and no lockout.
Kenneth M. Schwartz: Let's take a situation of a discharge. Are you saying that the status quo is that an individual stays on the job until the arbitration takes place?
Warren E. Burger: The status quo is effectively preserve is it not if he is guaranteed back pay?
Kenneth M. Schwartz: Oh! No. Not a bit, not anymore so than it would be in regard to the strike situation for the employer for the simple reason, you say he risk covers damages when he recovers back pay. That period of time that that individual has to feed his family, he has to wait until the arbitrator’s award comes out. What irreparable injury he has cannot be determined by me I don't know the status of his economic position. Most of our people today are -- have credit up to their ears and when they go ahead and don’t get pay while they've got problems. Now, what irreparable injury he may have, I don't know he may lose his house. He may not make his car payments and lose his car. It's very difficult to say any more so than the employer can recover in damages and they make the allegation that their damages are not sufficient and not adequate because they say that the damages cannot be satisfying them because of irreparable injury. I say the argument is the same on the other side of defense but both of the employer and Union have bargained for this, both of them have bargained for the fact that they'll submit it to arbitration. They have not bargained that they will go to court for it all and then they know they couldn't. Now, the very fact of the matter is this, both of the parties here rely upon the expertise of the arbitrator and the reason they do so is because of the federal labor policy recognizing is this Court did in Lincoln Mills and Steelwork Trilogy that it’s a different type of field. It's a type of field that courts do not have the expertise that is required in order to resolve his problem.
Warren E. Burger: (Voice Overlap) of no-strike clause, what's the value of administrate clause in the contract if the no-strike clause permits a strike on your theory?
Kenneth M. Schwartz: Well, I might point out to Mr. Chief Justice that there may be strikes in a shop or in a store that may not necessarily be a violation of the contract. For example we have those situations where employees may walk off the job because of unsafe conditions. That would not be a violation of the no-strike clause and the court has held so. We have situations where there may be an unfair labor practice.
Warren E. Burger: We don't have that here, do we?
Kenneth M. Schwartz: No, I'm responding to the questions you asked me about the strike situation but we do have these things that we have to take into consideration. We have a situation where the -- there's always an allegation it’s a violation of a contract if the employer brings in people to do work or subcontract work which is to be formed by contract by bargaining unit people. That is an erosion of the contract and it has the same effect in regard to irreparable injury as we have on the other side in defense in regard to the employer. I simply say to this Court that there is a remedy and to say there isn't a remedy isn't so because in Section 301 (b) expressly states that Section 301 confines for a lawsuit or damages can be given against the Union. Now, when counsel says he doesn't feel that that's an adequate remedy, we can only say that a Union -- a labor organization is no different from any other institution. They have to have a treasury the same way any other institution has and if they run into a situation where their treasury is depleted they’re pretty much out of business. So to say that is not adequate it may not be satisfactory. It may not be totally satisfactory to the employers because the employers may like the idea of having this injunctive relief. But that doesn't answer the question because if the employers felt that way and if based upon the Sinclair decision they felt that way strongly, from 1962 to the present time when this Court decided that the Sinclair case in Norris-LaGuardia was not repealed by the Section 301 was not intended by Congress to be repealed. It seems to me, it more or less was a mandate to the parties believing that the decision was wrong or that the law was wrong whatever it may be that the party should have gone to Congress and should have told Congress, we feel that Norris-LaGuardia should be repealed, It makes it very difficult for me to understand this because in the Sinclair case and in legislative history of the Sinclair case. We have Senator Taft -- the late Senator Taft was certainly was a man skilled in this field. When he came out of the Conference Committee on the Senate Floor he pointed out that the Section 301 did not prohibit all strikes. He pointed out that Section 301 did not repeal Norris-LaGuardia Act. He specifically said that the only two types of strike activities that would be illegal would be the secondary boycott strike and the jurisdictional strike. Those two aspects and those two strike activities were put in the Section 301 of the Act giving the National Labor Relations Board making it a mandatory injunction on the Board -- on the Board to go ahead and take those actions not to private litigants. If you recall in the legislative history, in the House Bill, there was a provision that make Section 301 -- Norris-LaGuardia not applicable to Section 301 cases. It was after it came out a committee that Congressman Hartley who also was the co-author of the Bill, pointed out specifically that this aspect of the Norris-LaGuardia Act was dropped in the Conference Committee. Now that appears to me and it was cited in the case and it was cited by the majority opinion in this case. If I were in the other side, I would take that as a mandate to me to get the Congress and have Congress change the law if they didn’t feel it was equitable. Now nothing has happened from 1962 to the present time, there has been no legislation in Congress in regard to this. There's no judicial determination which have warrant any reconsideration, the Sinclair aspect. And I think it's very, very important that we realize when counsel was asked yesterday. The question is to what status in regard to the business community was since Sinclair was enacted. Counsel pointed out that there's been very little activity as a matter of fact in the brief of amicus curiae AFL-CIO. They have a statistic from the U.S. Department of Labor where they show a 1961 which is prior to Sinclair. There 10.8% a man idle hours due to strikes during the term of a collective-bargaining agreement in 1961. In 1968, according to same bureau they show at 9.1% of the man hours idle during the term of a collective-bargaining agreement. This is not say that because of Sinclair there was reduction but I simply say that there is no real impact on the Sinclair decision on the business community which apparently from reading the briefs of amici and the petitioner makes it appear that there are some real reason for changing the posture of the law. So far as we can determine here that doesn't seem to be that reason as a matter of fact the parties in -- to collective-bargaining agreements have apparently found that this method of voluntary arbitration picking arbitrators with the expertise is a desired way along with the fact that the federal labor law has recognized the fact that arbitration is a matter for the experts in this particular feel because he run into also it’s a complexities in a contract. We run it to aspects of how many people are actually in the bargaining unit? Who should have overtime? Who shouldn't have overtime? What does the assignment all works? Are these breaches of the agreement? As a matter of fact even when we talk about a strike or a lockout. The arbitrator may have to determine whether in fact that strike was a breach of the collective-bargaining agreement. If we have a lockout, is it a question of a partial lockout or a complete lockout? We sometimes think in terms of a lockout meaning the entire plant is shutdown, nobody works but that isn’t necessarily so.
Warren E. Burger: So wouldn't it be helpful to total of industrial peace if in case of a lockout in violation of the contract, the Union could go into the federal courts and get an injunction against that lockout?
Kenneth M. Schwartz: If we would do that Your Honor and we are talking about when you say lockout, I assume that you're talking about partial lockout as well as any other type of lockout, then I could mention that to you very simply by pointing out the difference.
Warren E. Burger: All lockouts that are prohibited by the contract whatever they maybe?
Kenneth M. Schwartz: Well, there we have again exactly what I was referring to just on your own comment Mr. Chief Justice, if you say accordance to the contract whatever they are. This Court has said that the person who can best determine whether or not it is a violation of that contract is the arbitrator. It is because he works with that -- in that field day and night. He becomes the expert in the field. The courts have said time and time again that the type of economy and the type of labor management relations requires some sort of expert. And admittedly, this Court has said that the courts do not have that expertise. So, it isn't just a question --
Potter Stewart: Oh! I don't understand. I understand your argument --
Kenneth M. Schwartz: Alright --
Potter Stewart: -- with respect to damage suits under Section 301 which I understood you to concede are permissible certainly --
Kenneth M. Schwartz: Yes.
Potter Stewart: -- if the court has held so wouldn't the -- any court be face with exactly the same sort of problems that you're telling us are so impossible and so inappropriate for court decision? In a damage suit, you'd have exactly the same kind of issues. It will be decided by court and or a jury wouldn't you?
Kenneth M. Schwartz: Well, that is true. But the -- in all the cases some Lincoln Mills, Iron, and for the Steelworks Trilogy, this Court has spoken in respect -- they were make into distinction and talking about arbitrators and putting it in a great weight upon the arbitrator’s decision as oppose to the courts and they were talking in terms of injunctive relief primarily when we go back to the fact where the individual comes in with an allegation in the form of an affidavit and asking for an ex parte order in making the allegations that this is agreed to the collective-bargaining agreement and that's the end of it. Whereas the actual fact of the matter is it requires -- it may require an arbitrator to decide and the court doesn’t really have the time. If these cases were open to the courts, there'd be no use for arbitrators anymore because by the time the parties come into the court and get their injunctive relief there is really nothing for the arbitrator to decide. Because we found time and time again that where the injunctive relief was issued by a court there really wasn't any problem for the arbitrator at that particular time. In so far as determine damages in a 301 suit there is no questions that the court has to take the evidence very much the same of the arbitrator. But we're talking about matters relating to the expertise of the arbitrator and deferring to arbitration as such. It seems to me that this Court has said from Lincoln Mills and Iron, down that they deferred to the arbitrators and the Steelworks Trilogy makes it very clear.
Byron R. White: What about referring to the arbitrator disputes over a breach for the no-strike clause?
Kenneth M. Schwartz: Well, that's fine and the arbitrator can assess damages.
Byron R. White: Isn't that -- wouldn't that be covered by the normal arbitration clause?
Kenneth M. Schwartz: Yes, it is.
Byron R. White: And if the Union --
Kenneth M. Schwartz: In this case incidentally has been referred to arbitration --
Byron R. White: If the Union strikes allegedly in violation of the no-strike clause it goes to the arbitrator.
Kenneth M. Schwartz: That's correct, sir.
Byron R. White: And what is the arbitrator to do about it?
Kenneth M. Schwartz: The arbitrator can assess damages, he can do anything.
Byron R. White: So the courts don't get in at all?
Kenneth M. Schwartz: That's right.
Byron R. White: Except for the confirmation of the award.
Kenneth M. Schwartz: It's a little -- it seems to me that when parties have agreed upon the set scope of conduct, and they violate and they have agreed in the collective-bargaining agreement that any dispute under the collective-bargaining agreement goes to arbitration. That's exactly what it means. Now, if in fact the strike is a violation of the collective-bargaining agreement the parties, the employer can and did in this case make a motion to compel arbitration that motion is granted. Now, the fact of the matter is that is what we bargained for, we did not bargain for any type of status quo situation and the Norris-LaGuardia makes it -- the Act makes it very clear that Section 301 in the matter of collective-bargaining in Section 301 (b) speaks in terms of damages. Now, I'm sure without knowing that counsel --
Byron R. White: What if the Union strikes and the issue goes to the arbitrator right away assuming an arbitrator was available right away?
Kenneth M. Schwartz: That does happen by the way, the Longshoremen have --
Byron R. White: But can arbitrator -- can the arbitrator issue an injunction?
Kenneth M. Schwartz: Arbitrator issued an injunction?
Byron R. White: And they ordered -- can his award say that Union to go back to work?
Kenneth M. Schwartz: His award can say that and if the Union fails to put his man back to work, the employer can go to the court for conformation of the award.
Byron R. White: You -- do you agree that the Norris-LaGuardia Act does not bar an injunction in enforcing an arbitrator’s award?
Kenneth M. Schwartz: I conceded that in my brief sir.
Warren E. Burger: What's the difference then?
Kenneth M. Schwartz: Oh! The difference is that in the arbitrator's award the parties have bargained for the arbitration. The parties normally in the arbitration clause provide for the fact that the arbitrator's award shall be a final and binding award. If after they have gone to the procedure --
Warren E. Burger: I wasn't talking about the mechanics of it I'm familiar with the mechanics. What's the difference in principle?
Kenneth M. Schwartz: One is before the fact and one is after the fact. The matter of the --
Warren E. Burger: Can the Union go into District Court and get a directive whatever you might call it to arbitrate?
Kenneth M. Schwartz: Certainly, to compel arbitration. They've done it many times.
Warren E. Burger: And the employer can do the same thing?
Kenneth M. Schwartz: Yes sir, they've done it many times.
Warren E. Burger: But how do you distinguish the power to get invoke the authority of the federal court to compel one clause of the contract but not another?
Kenneth M. Schwartz: The --
Warren E. Burger: It's a specific performance equitable enforcement isn't it whenever you invoke it?
Kenneth M. Schwartz: Yes, it is.
Warren E. Burger: What's the difference between a mandate for specific performance of the no-strike clause and a mandate for the specific performance of the arbitration clause, in principle now, in legal principle?
Kenneth M. Schwartz: Let me se whether I understand it Mr. Chief Justice. What is the difference between the mandates for specific performance?
Warren E. Burger: What's the difference in the power of a federal court sitting as a court of equity to invoke the extra ordinary equitable remedy to command one or the other or both of the parties to arbitrate and the command to fulfill some other clause of the contracts specifically by specific performance decree?
Kenneth M. Schwartz: The -- in Section 301, of course the federal courts do have jurisdiction and the dispute between a parties and collective-bargaining agreement. The parties have agreed by contract to go to a form being the arbitration voluntarily. Parties have infused to do that. The court actually can and does compel arbitration, compel the parties to comply with the provisions of the collective-bargaining agreement which says they have agreed upon a form of adjustment which is quite different from enjoining the parties from doing something else. The difference being and as I thought I mentioned previously that the Norris-LaGuardia Act does not prevent the parties from going to federal court to seek compliance with their agreement to arbitrate when it does prevent the parties going to federal court to have the federal courts in effect require them to take certain conduct under their collective-bargaining agreement -- comply with conditions of that. That is expressly set out in the Norris-LaGuardia Act where it says that there can be no federal District Court can issue an injunction against certain activities. This is not one of those activities expressed in Norris-LaGuardia and so I think there is a difference. I think the federal court doesn't have the power because of Norris-LaGuardia as oppose to what we find here in Section 301 in regard the motion to compel arbitration. Does that answer your question Mr. Chief Justice?
Warren E. Burger: Well, I want to have your analysis.[Laughter Attempt]
Hugo L. Black: Let's assume you would say that probably that's the way Congress in intended that?
Kenneth M. Schwartz: This is what -- this is the way I understand it and that the way the law and the way the courts --
Hugo L. Black: And that it might be bad but it was the act of the Congress that at least in some field ought to be above us.
Kenneth M. Schwartz: That is my position Mr. Justice Black that it's just a matter of -- if there is going to be a change in the statute where the statute is clear and not ambiguous. It seems to me that that change has to be performed by Congress and not by judicial legislation so called. And in this particular instance, as I say I recognize the fact that this Court can change its opinions in regard to cases. I recognize the fact that they are not necessarily bound by stare decisis, but it is my feeling that Sinclair was an expression by this Court. Not in regard to a policy change of a matter left opened by Congress. It seem to me that what the Court said in Sinclair what they are deferring to Congress and that is that have been clearly set forth by the intent of Congress that they're saying to the parties that if this has to be changed then it maybe an inequity and may be changed. The place to get it is not in the courtroom but to get it from Congress. Congress has failed to act in this matter and therefore it seems that there is no other answer but that without Congress acting, we must take the intent of Congress applied to law and say, that’s where we stand today.
Potter Stewart: Except that this case involves not Sinclair directly does it but rather the situation that the court dealt with in the Avco case?
Kenneth M. Schwartz: I don't believe so.
Potter Stewart: This was a case -- no, I'll make premise on this.
Kenneth M. Schwartz: I'm sorry.
Potter Stewart: I understood that this was originally brought in the state court and then moved to the federal court.
Kenneth M. Schwartz: That's correct.
Potter Stewart: And that in the federal court, the order previously granted by the state court was set aside if I'm not mistaken about it?
Kenneth M. Schwartz: No, it was not sir. The federal court read its own injunction federal District Court and that was the court I appealed to Circuit Court and the Circuit Court reversed on the basis of Sinclair.
Potter Stewart: Well, I know the Court of Appeals did on the basis of Sinclair just as the Court of Appeals for the Sixth Circuit had to decide of the Avco case on the basis of Sinclair.
Kenneth M. Schwartz: Right.
Potter Stewart: But in this Court, in this Court we left the question open --
Kenneth M. Schwartz: That's correct.
Potter Stewart: -- with respect to a removed case, did we not?
Kenneth M. Schwartz: That's correct sir.
Potter Stewart: And I think the last footnote of the court's opinion.
Kenneth M. Schwartz: I think footnote 4 is the reason we're here.
Potter Stewart: Yes.
Kenneth M. Schwartz: And I --
Potter Stewart: So, it's not as so this had all been decided in Sinclair?
Kenneth M. Schwartz: Oh! I think the principle to decide was Sinclair.
Potter Stewart: Well, I know you submitted to attach then but it's not all that are in bound the stare decisis. We have in fact left the question open with respect to removed cases in the Avco opinion, didn’t we?
Kenneth M. Schwartz: Well, the way I understand it, I may have understood or think correctly Mr. Justice Stewart, but in the Avco case, all the Avco case just cited was a matter of procedure when a case is removed to the federal court from a state court and there is no remand. We had remand before, but at that point it took care of that problem and all I did is established in my opinion a method of federal labor law but isn’t a matter of forum shopping anymore. Once you go into state court and it's removed you applied the federal labor law which you should have applied in the state as well but because Norris-LaGuardia did not speak to the state we had a different situation when a case is filed in the state as oppose in federal law. But the principle can't be any different if in Sinclair as this Court found the Congress expressly set forth its intent unambiguous then the Avco doesn’t have anything to do with it. The fact that the remedy may be different because this Court happened to see fit, to find an Avco that there would be no remand. It seems that under those circumstances the principle -- underlying principle in Sinclair is no different because if the intent of Congress is so expressed that Congress must do something to change the law then I don't see where Avco is a matter of procedure affects it at all. I never did quite understand the footnote there from the system.
Potter Stewart: Or really all Avco held was that issue remove, that was a removable case --
Kenneth M. Schwartz: I think.
Potter Stewart: Period. That was the holding in Avco.
Kenneth M. Schwartz: Yes, but what I mean I didn't understand the impact that Avco might have in regard to Sinclair other than the fact as we did here. We removed the case from the state court to federal court and they could --
Potter Stewart: Yes and it couldn't be remanded back to the state court that's what Avco holds?
Kenneth M. Schwartz: That's right. And that's all --
Potter Stewart: Maybe beyond that in Avco, in the Avco it so happened that the federal District Court set aside the order for use to be granted by the state court. It wasn't clear on the record why the court had done so. The Court of Appeals for the Sixth Circuit as I remember in the Avco case had held yes it was -- now the property didn't so but it was required to do so by the Norris-LaGuardia Act and that's the question that we left opened and decided the court left open in deciding the Avco case here, am I wrong about that?
Kenneth M. Schwartz: No, you're correct. As a matter of fact when counsel for the petitioner was arguing in this case, it sounded as if he was not concerned with Sinclair but he’s unhappy with Avco. And as a matter of fact, in his reply brief it seems to me that he’s unhappy with the entire arbitration proceeding because in citing this one case from we’re talking about picking arbitration counsel points out that the -- while the contract hold for 72 hours and then a 12-hour decision he said, well, my god it took four days for hearing. Well, how long it would take if you went to court, and then the fact that there was a decision in December, the only way that they have a decision in December if the parties agreed. So, I simply say that by pointing to that particular case in the same quick the arbitrations are not the answer. I don't agree because in the Longshoremen when you have a dispute on the dock, they have a provision in their contract where the arbitrary comes right down to the dock right there. It says, go back to work and that's the end of it. So there is an answer to these things and people with the expertise in labor and management can bargain for that. And I failed to see and where the situation has changed from 1962 to today as I mentioned previously, I can find no legislative history, no legislate act, incidentally legislative history in 1962 as the same legislative history we have today. So, under those circumstances, absent anything else it seems to me that the Sinclair case should not be reversed and I think that’s it. Thank you, Your Honor.
Warren E. Burger: Thank you Mr. Schwartz. Mr. McLaughlin, you have about three minutes left.
Joseph M. Mclaughlin: Mr. Chief Justice and may it please the Court. In the very brief time remaining to me, I'd like to make two or three points. First of all, with reference to the statements and the contentions that have been made on account of the failure of Congress to act following the decision of this Court in Sinclair and also with respect to the idea that Sinclair is some kind of a stare decisis impact. I would like to direct the Court’s attention to decision of this Court which is not cited in any of the briefs. We didn't cover this point Helvering versus Hallock this case is to be found in 309 U.S. 106. The decision in the case was offered by Mr. Justice Frankfurter joined in by Mr. Justice Black, Mr. Justice Douglas, Mr. Justice Stone, Mr. Justice Reed, and Mr. Justice Murphy. On page 118 of the Official Report and if the Court will indulge me, I would just like to read three or four sentences. This case involved a situation where there had been three different decisions of this Court with respect to a tax matter and the Court was faced with the question as to whether it should further proliferate these decisions or whether it should just take the three decisions that come on before and in fact overturn them. “Our real problem, therefore, is to determine whether we are to adhere to a harmonizing principle in the construction of 302 (c), or whether we are to multiply gossamer distinctions between the present cases and the three earlier cases.” Now, skipping Your Honor, “We recognize that stare decisis embodies an important social policy. It represents an element of continuity in and law and it’s rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, where such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience.” Skipping now for one more sentence to what would be page 121 of the Official Reporter. “This Court, unlike the House of Lords, has from the beginning rejected the doctrine of disability and self-correction. Whatever else may be said about want to congressional action to modify by legislation the result from the St. Louis Trust cases, it will hardly be urged that the reason was Congressional approval of these distinctions” and then the Court goes on.
John M. Harlan II: What's the full citation? Could you give it to us?
Joseph M. Mclaughlin: Yes, Your Honor. Helvering versus Hallock it’s to be found at -- in the Official Reporter as I said at 309 U.S. 106.
John M. Harlan II: 309?
Joseph M. Mclaughlin: Pardon me sir?
John M. Harlan II: 309 or 301?
Joseph M. Mclaughlin: 309. Now, also I would like to direct the Court’s attention the decision of Girouard versus United States 328 U.S. 61. The first case I cited I believe was a 1940 case. This is a 1946 case. This involved a matter arising under the Immigration and Nationality Act. The opinion in that case written by Mr. Justice Douglas joined in by Mr. Justice Black, Mr. Justice Murphy, Mr. Justice Rutledge and Mr. Justice Burger. One sentence from that case if I might please once again a prior --
John M. Harlan II: What is that citation issue?
Joseph M. Mclaughlin: 321 U.S. 61 Your Honor. One sentence, “It is, at best, treacherous to find in congressional silence alone the adoption of a controlling rule of law.” Now, I see that my time is up and so I can't make some of the other points I'd like to make but suffice it to say that the only remedy that’s going to effectuate the policy of Section 301 is going to be the availability of the injunction against the strike in breach of contract. Thank you, Your Honors.
Warren E. Burger: Thank you Mr. McLaughlin.
Joseph M. Mclaughlin: Oh! One thing Your Honors if I might, I apologize. I will direct your attention with respect to this idea about equality to Section 2 on page 3 of our reply brief. We have covered this so called imbalance situation and I would ask you to read it with some care. Thank you.
Warren E. Burger: Thank you. Thank you Mr. Schwartz for your submission. The case is submitted.