TILL et ux. v. SCS CREDIT CORP.

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465 OCTOBER TERM, 2003
Syllabus
TILL et ux. v. SCS CREDIT CORP.
certiorari to the united states court of appeals for
the seventh circuit
No. 02–1016. Argued December 2, 2003—Decided May 17, 2004
Under the so-called “cramdown option” permitted by the Bankruptcy
Code, a Chapter 13 debtor’s proposed debt adjustment plan must pro-
vide each allowed, secured creditor both a lien securing the claim and a
promise of future property disbursements whose total value, as of the
plan’s date, “is not less than the [claim’s] allowed amount,” 11 U. S. C.
§ 1325(a)(5)(B)(ii). When such plans provide for installment payments,
each installment must be calibrated to ensure that the creditor receives
disbursements whose total present value equals or exceeds that of the
allowed claim. Respondent’s retail installment contract on petitioners’
truck had a secured value of $4,000 at the time petitioners filed a Chap-
ter 13 petition. Petitioners’ proposed debt adjustment plan provided
the amount that would be distributed to creditors each month and that
petitioners would pay an annual 9.5% interest rate on respondent’s se-
cured claim. This “prime-plus” or “formula rate” was reached by aug-
menting the national prime rate of 8% to account for the nonpayment
risk posed by borrowers in petitioners’ financial position. In confirming
the plan, the Bankruptcy Court overruled respondent’s objection that it
was entitled to its contract interest rate of 21%. The District Court
reversed, ruling that the 21% “coerced loan rate” was appropriate be-
cause cramdown rates must be set at the level the creditor could have
obtained had it foreclosed on the loan, sold the collateral, and reinvested
the proceeds in equivalent loans. The Seventh Circuit modified that
approach, holding that the original contract rate was a “presumptive
rate” that could be challenged with evidence that a higher or lower rate
should apply, and remanding the case to the Bankruptcy Court to afford
the parties an opportunity to rebut the presumptive 21% rate. The
dissent proposed adoption of the formula approach, rejecting a “cost of
funds rate” that would simply ask what it would cost the creditor to
obtain the cash equivalent of the collateral from another source.
Held: The judgment is reversed, and the case is remanded.
301 F. 3d 583, reversed and remanded.
Justice Stevens, joined by Justice Souter, Justice Ginsburg,
and Justice Breyer, concluded that the prime-plus or formula rate
best meets the purposes of the Bankruptcy Code. Pp. 473–485.

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466 TILL v. SCS CREDIT CORP.
Syllabus
(a) The Code gives little guidance as to which of the four interest
rates advocated by opinions in this case Congress intended when it
adopted the cramdown provision. A debtor’s promise of future pay-
ments is worth less than an immediate lump-sum payment because the
creditor cannot use the money right away, inflation may cause the dol-
lar’s value to decline before the debtor pays, and there is a nonpayment
risk. In choosing an interest rate sufficient to compensate the creditor
for such concerns, bankruptcy courts must consider that: (1) Congress
likely intended bankruptcy judges and trustees to follow essentially the
same approach when choosing an appropriate interest rate under any of
the many Code provisions requiring a court to discount a stream of
deferred payments back to their present dollar value; (2) Chapter 13
expressly authorizes a bankruptcy court to modify the rights of a credi-
tor whose claim is secured by an interest in anything other than the
debtor’s principal residence; and (3) from a creditor’s point of view, the
cramdown provision mandates an objective rather than a subjective in-
quiry. Pp. 473–477.
(b) These considerations lead to the conclusion that the coerced loan,
presumptive contract rate, and cost of funds approaches should be re-
jected, since they are complicated, impose significant evidentiary costs,
and aim to make each individual creditor whole rather than to ensure
that a debtor’s payments have the required present value. Pp. 477–478.
(c) The formula approach has none of these defects. Taking its cue
from ordinary lending practices, it looks to the national prime rate,
which reflects the financial market’s estimate of the amount a commer-
cial bank should charge a creditworthy commercial borrower to compen-
sate for the loan’s opportunity costs, the inflation risk, and the relatively
slight default risk. A bankruptcy court is then required to adjust the
prime rate to account for the greater nonpayment risk that bankrupt
debtors typically pose. Because that adjustment depends on such fac-
tors as the estate’s circumstances, the security’s nature, and the reorga-
nization plan’s duration and feasibility, the court must hold a hearing to
permit the debtor and creditors to present evidence about the appro-
priate risk adjustment. Unlike the other approaches proposed in this
case, the formula approach entails a straightforward, familiar, and objec-
tive inquiry, and minimizes the need for potentially costly additional
evidentiary hearings. The resulting prime-plus rate also depends only
on the state of financial markets, the bankruptcy estate’s circumstances,
and the loan’s characteristics, not on the creditor’s circumstances or its
prior interactions with the debtor. The risk adjustment’s proper scale
is not before this Court. The Bankruptcy Court approved 1.5% in this
case, and other courts have generally approved 1% to 3%, but respond-
ent claims a risk adjustment in this range is inadequate. The issue

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467 Cite as: 541 U. S. 465 (2004)
Syllabus
need not be resolved here; it is sufficient to note that courts must choose
a rate high enough to compensate a creditor for its risk but not so high
as to doom the bankruptcy plan. Pp. 478–481.
Justice Thomas concluded that the proposed 9.5% rate will suffi-
ciently compensate respondent for the fact that it is receiving monthly
payments rather than a lump sum payment, but that 11 U. S. C.
§ 1325(a)(5)(B)(ii) does not require that the proper interest rate reflect
the risk of nonpayment. Pp. 485–491.
(a) The plain language of § 1325(a)(5)(B)(ii) requires a court to deter-
mine, first, the allowed amount of the claim; second, what is the property
to be distributed under the plan; and third, the “value, as of the effective
date of the plan,” of the property to be distributed. This third require-
ment, which is at issue here, incorporates the principle of the time value
of money. Section 1325(a)(5)(B)(ii) requires valuation of the property,
not valuation of the plan. Thus, a plan need only propose an interest
rate that will compensate a creditor for the fact that had he received
the property immediately rather than at a future date, he could have
immediately made use of the property. In most, if not all, cases, where
the plan proposes simply a stream of cash payments, the appropriate
risk-free rate should suffice. There may be some risk of nonpayment,
but § 1325(a)(5)(B)(ii) does not take this risk into account. Respondent’s
argument that § 1325(a)(5)(B)(ii) was crafted to protect creditors rather
than debtors ignores the statute’s plain language and overlooks the fact
that secured creditors are compensated in part for the nonpayment risk
through the valuation of the secured claim. Further, the statute’s plain
language is by no means debtor protective. Given the presence of mul-
tiple creditor-specific protections, it is not irrational to assume that Con-
gress opted not to provide further protection for creditors by requiring
a debtor-specific risk adjustment under § 1325(a)(5). Pp. 486–490.
(b) Here, the allowed amount of the secured claim is $4,000, and the
property to be distributed under the plan is cash payments. Because
the proposed 9.5% interest rate is higher than the risk-free rate, it is
sufficient to account for the time value of money, which is all the statute
requires. Pp. 490–491.
Stevens, J., announced the judgment of the Court and delivered an
opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Thomas,
J., filed an opinion concurring in the judgment, post, p. 485. Scalia, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and
Kennedy, JJ., joined, post, p. 491.
Rebecca J. Harper argued the cause for petitioners. With
her on the briefs was Annette F. Rush.

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468 TILL v. SCS CREDIT CORP.
Opinion of Stevens, J.
David B. Salmons argued the cause pro hac vice for the
United States as amicus curiae urging reversal. With him
on the brief were Solicitor General Olson, Assistant Attor-
ney General Keisler, Deputy Solicitor General Clement,
Robert M. Loeb, and Anthony A. Yang.
G. Eric Brunstad, Jr., argued the cause for respondent.
With him on the brief were John M. Smith and Roger P.
Ralph.*
Justice Stevens announced the judgment of the Court
and delivered an opinion, in which Justice Souter, Justice
Ginsburg, and Justice Breyer join.
To qualify for court approval under Chapter 13 of the
Bankruptcy Code, an individual debtor’s proposed debt ad-
justment plan must accommodate each allowed, secured
creditor in one of three ways: (1) by obtaining the creditor’s
acceptance of the plan; (2) by surrendering the property se-
curing the claim; or (3) by providing the creditor both a lien
securing the claim and a promise of future property distribu-
tions (such as deferred cash payments) whose total “value,
as of the effective date of the plan, . . . is not less than the
allowed amount of such claim.” 1 The third alternative is
*Briefs of amici curiae urging reversal were filed for the AARP by
Brady C. Williamson, Elizabeth Warren, Jean Constantine-Davis, Nina
F. Simon, and Michael R. Schuster; for the National Association of Chap-
ter Thirteen Trustees by Henry E. Hildebrand III; and for the National
Association of Consumer Bankruptcy Attorneys et al. by James Justin
Haller.
James C. Schroeder filed a brief for Allstate Life Insurance Co. et al. as
amici curiae urging affirmance.
1 11 U. S. C. § 1325(a)(5). The text of the statute reads as follows:
Ҥ 1325. Confirmation of plan
“(a) Except as provided in subsection (b), the court shall confirm a
plan if—
. . . . .
“(5) with respect to each allowed secured claim provided for by the
plan—
“(A) the holder of such claim has accepted the plan;

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Opinion of Stevens, J.
commonly known as the “cramdown option” because it may
be enforced over a claim holder’s objection.2 Associates
Commercial Corp. v. Rash, 520 U. S. 953, 957 (1997).
Plans that invoke the cramdown power often provide for
installment payments over a period of years rather than a
single payment.3 In such circumstances, the amount of each
installment must be calibrated to ensure that, over time, the
creditor receives disbursements whose total present value 4
equals or exceeds that of the allowed claim. The proceed-
ings in this case that led to our grant of certiorari identi-
fied four different methods of determining the appropriate
method with which to perform that calibration. Indeed, the
Bankruptcy Judge, the District Court, the Court of Appeals
majority, and the dissenting judge each endorsed a different
approach. We detail the underlying facts and describe each
of those approaches before setting forth our judgment as to
which approach best meets the purposes of the Bankruptcy
Code.
I
On October 2, 1998, petitioners Lee and Amy Till, resi-
dents of Kokomo, Indiana, purchased a used truck from In-
stant Auto Finance for $6,395 plus $330.75 in fees and taxes.
“(B)(i) the plan provides that the holder of such claim retain the lien
securing such claim; and
“(ii) the value, as of the effective date of the plan, of property to be
distributed under the plan on account of such claim is not less than the
allowed amount of such claim; or
“(C) the debtor surrenders the property securing such claim to such
holder . . . .”
2 As we noted in Associates Commercial Corp. v. Rash, 520 U. S. 953,
962 (1997), a debtor may also avail himself of the second option (surrender
of the collateral) despite the creditor’s objection.
3 See Rake v. Wade, 508 U. S. 464, 472, n. 8 (1993) (noting that property
distributions under § 1325(a)(5)(B)(ii) may take the form of “a stream of
future payments”).
4 In the remainder of the opinion, we use the term “present value” to
refer to the value as of the effective date of the bankruptcy plan.

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470 TILL v. SCS CREDIT CORP.
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They made a $300 downpayment and financed the balance of
the purchase price by entering into a retail installment con-
tract that Instant Auto immediately assigned to respondent,
SCS Credit Corporation. Petitioners’ initial indebtedness
amounted to $8,285.24—the $6,425.75 balance of the truck
purchase plus a finance charge of 21% per year for 136 weeks,
or $1,859.49. Under the contract, petitioners agreed to
make 68 biweekly payments to cover this debt; Instant
Auto—and subsequently respondent—retained a purchase
money security interest that gave it the right to repossess
the truck if petitioners defaulted under the contract.
On October 25, 1999, petitioners, by then in default on
their payments to respondent, filed a joint petition for relief
under Chapter 13 of the Bankruptcy Code. At the time
of the filing, respondent’s outstanding claim amounted to
$4,894.89, but the parties agreed that the truck securing the
claim was worth only $4,000. App. 16–17. In accordance
with the Bankruptcy Code, therefore, respondent’s secured
claim was limited to $4,000, and the $894.89 balance was
unsecured.5 Petitioners’ filing automatically stayed debt-
collection activity by their various creditors, including the
Internal Revenue Service (IRS), respondent, three other
holders of secured claims, and unidentified unsecured credi-
tors. In addition, the filing created a bankruptcy estate, ad-
ministered by a trustee, which consisted of petitioners’ prop-
erty, including the truck.6
5 Title 11 U. S. C. § 506(a) provides:
“An allowed claim of a creditor secured by a lien on property in which
the estate has an interest . . . is a secured claim to the extent of the value
of such creditor’s interest in the estate’s interest in such property, . . . and
is an unsecured claim to the extent that the value of such creditor’s inter-
est or the amount so subject to setoff is less than the amount of such
allowed claim. Such value shall be determined in light of the purpose of
the valuation and of the proposed disposition or use of such property, and
in conjunction with any hearing on such disposition or use or on a plan
affecting such creditor’s interest.”
6 See §§ 541(a), 1306(a).

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Petitioners’ proposed debt adjustment plan called for them
to submit their future earnings to the supervision and control
of the Bankruptcy Court for three years, and to assign $740
of their wages to the trustee each month.7 App. to Pet. for
Cert. 76a–81a. The plan charged the trustee with distribut-
ing these monthly wage assignments to pay, in order of pri-
ority: (1) administrative costs; (2) the IRS’s priority tax
claim; (3) secured creditors’ claims; and finally, (4) unsecured
creditors’ claims. Id., at 77a–79a.
The proposed plan also provided that petitioners would
pay interest on the secured portion of respondent’s claim at
a rate of 9.5% per year. Petitioners arrived at this “prime-
plus” or “formula rate” by augmenting the national prime
rate of approximately 8% (applied by banks when making
low-risk loans) to account for the risk of nonpayment posed
by borrowers in their financial position. Respondent ob-
jected to the proposed rate, contending that the company
was “entitled to interest at the rate of 21%, which is the rate
. . . it would obtain if it could foreclose on the vehicle and
reinvest the proceeds in loans of equivalent duration and risk
as the loan” originally made to petitioners. App. 19–20.
At the hearing on its objection, respondent presented ex-
pert testimony establishing that it uniformly charges 21%
interest on so-called “subprime” loans, or loans to borrowers
with poor credit ratings, and that other lenders in the sub-
prime market also charge that rate. Petitioners countered
with the testimony of an Indiana University-Purdue Univer-
sity Indianapolis economics professor, who acknowledged
that he had only limited familiarity with the subprime auto
lending market, but described the 9.5% formula rate as “very
reasonable” given that Chapter 13 plans are “supposed to be
7 Petitioners submitted an initial plan that would have required them to
assign $1,089 of their wages to the trustee every month. App. 9. Their
amended plan, however, reduced this monthly payment to $740. App. to
Pet. for Cert. 77a.

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financially feasible.” 8 Id., at 43–44. Moreover, the profes-
sor noted that respondent’s exposure was “fairly limited be-
cause [petitioners] are under the supervision of the court.”
Id., at 43. The bankruptcy trustee also filed comments sup-
porting the formula rate as, among other things, easily ascer-
tainable, closely tied to the “condition of the financial mar-
ket,” and independent of the financial circumstances of any
particular lender. App. to Pet. for Cert. 41a–42a. Accept-
ing petitioners’ evidence, the Bankruptcy Court overruled
respondent’s objection and confirmed the proposed plan.
The District Court reversed. It understood Seventh Cir-
cuit precedent to require that bankruptcy courts set cram-
down interest rates at the level the creditor could have ob-
tained if it had foreclosed on the loan, sold the collateral, and
reinvested the proceeds in loans of equivalent duration and
risk. Citing respondent’s unrebutted testimony about the
market for subprime loans, the court concluded that 21% was
the appropriate rate. Id., at 38a.
On appeal, the Seventh Circuit endorsed a slightly modi-
fied version of the District Court’s “coerced” or “forced loan”
approach. In re Till, 301 F. 3d 583, 591 (2002). Specifically,
the majority agreed with the District Court that, in a cram-
down proceeding, the inquiry should focus on the interest
rate “that the creditor in question would obtain in making a
new loan in the same industry to a debtor who is similarly
situated, although not in bankruptcy.” Id., at 592. To ap-
proximate that new loan rate, the majority looked to the par-
ties’ prebankruptcy contract rate (21%). The court rec-
ognized, however, that using the contract rate would not
“duplicat[e] precisely . . . the present value of the collateral
to the creditor” because loans to bankrupt, court-supervised
debtors “involve some risks that would not be incurred in a
8 The requirement of financial feasibility derives from 11 U. S. C.
§ 1325(a)(6), which provides that the bankruptcy court shall “confirm a plan
if . . . the debtor will be able to make all payments under the plan and to
comply with the plan.” See infra, at 480.

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new loan to a debtor not in default” and also produce “some
economies.” Ibid. To correct for these inaccuracies, the
majority held that the original contract rate should “serve
as a presumptive [cramdown] rate,” which either the creditor
or the debtor could challenge with evidence that a higher or
lower rate should apply. Ibid. Accordingly, the court re-
manded the case to the Bankruptcy Court to afford petition-
ers and respondent an opportunity to rebut the presumptive
21% rate.9
Dissenting, Judge Rovner argued that the majority’s pre-
sumptive contract rate approach overcompensates secured
creditors because it fails to account for costs a creditor would
have to incur in issuing a new loan. Rather than focusing
on the market for comparable loans, Judge Rovner advocated
the Bankruptcy Court’s formula approach. Id., at 596. Al-
though Judge Rovner noted that the rates produced by
either the formula or the cost of funds approach might be
“piddling” relative to the coerced loan rate, she suggested
courts should “consider the extent to which the creditor has
already been compensated for . . . the risk that the debtor
will be unable to discharge his obligations under the reorga-
nization plan . . . in the rate of interest that it charged to the
debtor in return for the original loan.” Ibid. We granted
certiorari and now reverse. 539 U. S. 925 (2003).
II
The Bankruptcy Code provides little guidance as to which
of the rates of interest advocated by the four opinions in this
case—the formula rate, the coerced loan rate, the presump-
tive contract rate, or the cost of funds rate—Congress had
in mind when it adopted the cramdown provision. That pro-
vision, 11 U. S. C. § 1325(a)(5)(B), does not mention the term
“discount rate” or the word “interest.” Rather, it simply
9 As 21% is the maximum interest rate creditors may charge for con-
sumer loans under Indiana’s usury statute, Ind. Code § 24–4.5–3–201
(1993), the remand presumably could not have benefited respondent.

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requires bankruptcy courts to ensure that the property to
be distributed to a particular secured creditor over the life
of a bankruptcy plan has a total “value, as of the effec-
tive date of the plan,” that equals or exceeds the value of
the creditor’s allowed secured claim—in this case, $4,000.
§ 1325(a)(5)(B)(ii).
That command is easily satisfied when the plan provides
for a lump-sum payment to the creditor. Matters are not so
simple, however, when the debt is to be discharged by a se-
ries of payments over time. A debtor’s promise of future
payments is worth less than an immediate payment of the
same total amount because the creditor cannot use the
money right away, inflation may cause the value of the dollar
to decline before the debtor pays, and there is always some
risk of nonpayment. The challenge for bankruptcy courts
reviewing such repayment schemes, therefore, is to choose
an interest rate sufficient to compensate the creditor for
these concerns.
Three important considerations govern that choice.
First, the Bankruptcy Code includes numerous provisions
that, like the cramdown provision, require a court to “dis-
coun[t] . . . [a] stream of deferred payments back to the[ir]
present dollar value,” Rake v. Wade, 508 U. S. 464, 472, n. 8
(1993), to ensure that a creditor receives at least the value
of its claim.10 We think it likely that Congress intended
bankruptcy judges and trustees to follow essentially the
same approach when choosing an appropriate interest rate
under any of these provisions. Moreover, we think Con-
gress would favor an approach that is familiar in the financial
10 See 11 U. S. C. § 1129(a)(7)(A)(ii) (requiring payment of prop-
erty whose “value, as of the effective date of the plan” equals or exceeds
the value of the creditor ’s claim); §§ 1129(a)(7)(B), 1129(a)(9)(B)(i),
1129(a)(9)(C), 1129(b)(2)(A)(i)(II), 1129(b)(2)(B)(i), 1129(b)(2)(C)(i),
1173(a)(2), 1225(a)(4), 1225(a)(5)(B)(ii), 1228(b)(2), 1325(a)(4), 1228(b)(2)
(same).

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community and that minimizes the need for expensive evi-
dentiary proceedings.
Second, Chapter 13 expressly authorizes a bankruptcy
court to modify the rights of any creditor whose claim is
secured by an interest in anything other than “real prop-
erty that is the debtor’s principal residence.” 11 U. S. C.
§ 1322(b)(2).11 Thus, in cases like this involving secured in-
terests in personal property, the court’s authority to modify
the number, timing, or amount of the installment payments
from those set forth in the debtor’s original contract is per-
fectly clear. Further, the potential need to modify the loan
terms to account for intervening changes in circumstances is
also clear: On the one hand, the fact of the bankruptcy estab-
lishes that the debtor is overextended and thus poses a sig-
nificant risk of default; on the other hand, the postbank-
ruptcy obligor is no longer the individual debtor but the
court-supervised estate, and the risk of default is thus some-
what reduced.12
11 Section 1322(b)(2) provides:
“[T]he plan may . . . modify the rights of holders of secured claims, other
than a claim secured only by a security interest in real property that is the
debtor’s principal residence, . . . or leave unaffected the rights of holders of
any class of claims.”
12 Several factors contribute to this reduction in risk. First, as noted
below, infra, at 480, a court may only approve a cramdown loan (and the
debt adjustment plan of which the loan is a part) if it believes the debtor
will be able to make all of the required payments. § 1325(a)(6). Thus,
such loans will only be approved for debtors that the court deems credit-
worthy. Second, Chapter 13 plans must “provide for the submission” to
the trustee “of all or such portion of [the debtor’s] future . . . income . . .
as is necessary for the execution of the plan,” § 1322(a)(1), so the possibility
of nonpayment is greatly reduced. Third, the Bankruptcy Code’s exten-
sive disclosure requirements reduce the risk that the debtor has significant
undisclosed obligations. Fourth, as a practical matter, the public nature
of the bankruptcy proceeding is likely to reduce the debtor’s opportunities
to take on additional debt. Cf. 11 U. S. C. § 525 (prohibiting certain Gov-
ernment grant and loan programs from discriminating against applicants
who are or have been bankrupt).

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476 TILL v. SCS CREDIT CORP.
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Third, from the point of view of a creditor, the cramdown
provision mandates an objective rather than a subjective in-
quiry.13 That is, although § 1325(a)(5)(B) entitles the credi-
tor to property whose present value objectively equals or
exceeds the value of the collateral, it does not require that
the terms of the cramdown loan match the terms to which
the debtor and creditor agreed prebankruptcy, nor does it
require that the cramdown terms make the creditor subjec-
tively indifferent between present foreclosure and future
payment. Indeed, the very idea of a “cramdown” loan pre-
cludes the latter result: By definition, a creditor forced to
accept such a loan would prefer instead to foreclose.14 Thus,
a court choosing a cramdown interest rate need not consider
the creditor’s individual circumstances, such as its prebank-
ruptcy dealings with the debtor or the alternative loans it
13 We reached a similar conclusion in Associates Commercial Corp. v.
Rash, 520 U. S. 953 (1997), when we held that a creditor’s secured interest
should be valued from the debtor’s, rather than the creditor’s, perspective.
Id., at 963 (“[The debtor’s] actual use, rather than a foreclosure sale that
will not take place, is the proper guide . . .”).
14 This fact helps to explain why there is no readily apparent Chapter
13 “cramdown market rate of interest”: Because every cramdown loan
is imposed by a court over the objection of the secured creditor, there
is no free market of willing cramdown lenders. Interestingly, the same
is not true in the Chapter 11 context, as numerous lenders advertise
financing for Chapter 11 debtors in possession. See, e. g., Balmoral
Financial Corporation, http://www.balmoral.com/ bdip.htm (all Internet
materials as visited Mar. 4, 2004, and available in Clerk of Court’s case
file) (advertising debtor in possession lending); Debtor in Possession
Financing: 1st National Assistance Finance Association DIP Division,
http://www.loanmallusa.com/dip.htm (offering “to tailor a financing pro-
gram . . . to your business’ needs and . . . to work closely with your bank-
ruptcy counsel”). Thus, when picking a cramdown rate in a Chapter 11
case, it might make sense to ask what rate an efficient market would
produce. In the Chapter 13 context, by contrast, the absence of any such
market obligates courts to look to first principles and ask only what rate
will fairly compensate a creditor for its exposure.

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could make if permitted to foreclose.15 Rather, the court
should aim to treat similarly situated creditors similarly,16
and to ensure that an objective economic analysis would sug-
gest the debtor’s interest payments will adequately compen-
sate all such creditors for the time value of their money and
the risk of default.
III
These considerations lead us to reject the coerced loan,
presumptive contract rate, and cost of funds approaches.
Each of these approaches is complicated, imposes significant
evidentiary costs, and aims to make each individual creditor
whole rather than to ensure the debtor’s payments have the
required present value. For example, the coerced loan ap-
proach requires bankruptcy courts to consider evidence
about the market for comparable loans to similar (though
nonbankrupt) debtors—an inquiry far removed from such
courts’ usual task of evaluating debtors’ financial circum-
stances and the feasibility of their debt adjustment plans.
In addition, the approach overcompensates creditors because
the market lending rate must be high enough to cover fac-
tors, like lenders’ transaction costs and overall profits, that
are no longer relevant in the context of court-administered
and court-supervised cramdown loans.
Like the coerced loan approach, the presumptive contract
rate approach improperly focuses on the creditor’s potential
use of the proceeds of a foreclosure sale. In addition, al-
though the approach permits a debtor to introduce some evi-
dence about each creditor, thereby enabling the court to tai-
lor the interest rate more closely to the creditor’s financial
circumstances and reducing the likelihood that the creditor
15 See supra, at 472 (noting that the District Court’s coerced loan ap-
proach aims to set the cramdown interest rate at the level the creditor
could obtain from new loans of comparable duration and risk).
16 Cf. 11 U. S. C. § 1322(a)(3) (“The plan shall . . . provide the same treat-
ment for each claim within a particular class”).

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478 TILL v. SCS CREDIT CORP.
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will be substantially overcompensated, that right comes at a
cost: The debtor must obtain information about the creditor’s
costs of overhead, financial circumstances, and lending prac-
tices to rebut the presumptive contract rate. Also, the ap-
proach produces absurd results, entitling “inefficient, poorly
managed lenders” with lower profit margins to obtain higher
cramdown rates than “well managed, better capitalized lend-
ers.” 2 K. Lundin, Chapter 13 Bankruptcy § 112.1, p. 112–8
(3d ed. 2000). Finally, because the approach relies heavily
on a creditor’s prior dealings with the debtor, similarly situ-
ated creditors may end up with vastly different cramdown
rates.17
The cost of funds approach, too, is improperly aimed. Al-
though it rightly disregards the now-irrelevant terms of the
parties’ original contract, it mistakenly focuses on the credit-
worthiness of the creditor rather than the debtor. In addi-
tion, the approach has many of the other flaws of the coerced
loan and presumptive contract rate approaches. For exam-
ple, like the presumptive contract rate approach, the cost of
funds approach imposes a significant evidentiary burden, as
a debtor seeking to rebut a creditor’s asserted cost of bor-
rowing must introduce expert testimony about the creditor’s
financial condition. Also, under this approach, a credit-
worthy lender with a low cost of borrowing may obtain a
lower cramdown rate than a financially unsound, fly-by-
night lender.
IV
The formula approach has none of these defects. Taking
its cue from ordinary lending practices, the approach begins
17 For example, suppose a debtor purchases two identical used cars, buy-
ing the first at a low purchase price from a lender who charges high inter-
est, and buying the second at a much higher purchase price from a lender
who charges zero-percent or nominal interest. Prebankruptcy, these two
loans might well produce identical income streams for the two lenders.
Postbankruptcy, however, the presumptive contract rate approach would
entitle the first lender to a considerably higher cramdown interest rate,
even though the two secured debts are objectively indistinguishable.

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Opinion of Stevens, J.
by looking to the national prime rate, reported daily in the
press, which reflects the financial market’s estimate of the
amount a commercial bank should charge a creditworthy
commercial borrower to compensate for the opportunity
costs of the loan, the risk of inflation, and the relatively slight
risk of default.18 Because bankrupt debtors typically pose a
greater risk of nonpayment than solvent commercial borrow-
ers, the approach then requires a bankruptcy court to adjust
the prime rate accordingly. The appropriate size of that
risk adjustment depends, of course, on such factors as the
circumstances of the estate, the nature of the security, and
the duration and feasibility of the reorganization plan. The
court must therefore hold a hearing at which the debtor and
any creditors may present evidence about the appropriate
risk adjustment. Some of this evidence will be included
in the debtor’s bankruptcy filings, however, so the debtor
and creditors may not incur significant additional expense.
Moreover, starting from a concededly low estimate and ad-
justing upward places the evidentiary burden squarely on
the creditors, who are likely to have readier access to any
information absent from the debtor’s filing (such as evidence
about the “liquidity of the collateral market,” post, at 499
(Scalia, J., dissenting)). Finally, many of the factors rele-
vant to the adjustment fall squarely within the bankruptcy
court’s area of expertise.
Thus, unlike the coerced loan, presumptive contract rate,
and cost of funds approaches, the formula approach entails a
straightforward, familiar, and objective inquiry, and mini-
mizes the need for potentially costly additional evidentiary
proceedings. Moreover, the resulting “prime-plus” rate of
interest depends only on the state of financial markets, the
circumstances of the bankruptcy estate, and the characteris-
tics of the loan, not on the creditor’s circumstances or its
prior interactions with the debtor. For these reasons, the
18 We note that, if the court could somehow be certain a debtor would
complete his plan, the prime rate would be adequate to compensate any
secured creditors forced to accept cramdown loans.

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480 TILL v. SCS CREDIT CORP.
Opinion of Stevens, J.
prime-plus or formula rate best comports with the purposes
of the Bankruptcy Code.19
We do not decide the proper scale for the risk adjustment,
as the issue is not before us. The Bankruptcy Court in this
case approved a risk adjustment of 1.5%, App. to Pet. for
Cert. 44a–73a, and other courts have generally approved ad-
justments of 1% to 3%, see In re Valenti, 105 F. 3d 55, 64
(CA2) (collecting cases), abrogated on other grounds by As-
sociates Commercial Corp. v. Rash, 520 U. S. 953 (1997).
Respondent’s core argument is that a risk adjustment in this
range is entirely inadequate to compensate a creditor for the
real risk that the plan will fail. There is some dispute about
the true scale of that risk—respondent claims that more than
60% of Chapter 13 plans fail, Brief for Respondent 25, but
petitioners argue that the failure rate for approved Chapter
13 plans is much lower, Tr. of Oral Arg. 9. We need not
resolve that dispute. It is sufficient for our purposes to note
that, under 11 U. S. C. § 1325(a)(6), a court may not approve
a plan unless, after considering all creditors’ objections and
receiving the advice of the trustee, the judge is persuaded
that “the debtor will be able to make all payments under the
plan and to comply with the plan.” Ibid. Together with
the cramdown provision, this requirement obligates the
court to select a rate high enough to compensate the creditor
for its risk but not so high as to doom the plan. If the court
determines that the likelihood of default is so high as to ne-
19 The fact that Congress considered but rejected legislation that would
endorse the Seventh Circuit’s presumptive contract rate approach, H. R.
1085, 98th Cong., 1st Sess., § 19(2)(A) (1983); H. R. 1169, 98th Cong., 1st
Sess., § 19(2)(A) (1983); H. R. 4786, 97th Cong., 1st Sess., § 19(2)(A) (1981),
lends some support to our conclusion. It is perhaps also relevant that our
conclusion is endorsed by the Executive Branch of the Government and by
the National Association of Chapter Thirteen Trustees. Brief for United
States as Amicus Curiae; Brief for National Association of Chapter Thir-
teen Trustees as Amicus Curiae. If we have misinterpreted Congress’
intended meaning of “value, as of the date of the plan,” we are confident
it will enact appropriate remedial legislation.

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Opinion of Stevens, J.
cessitate an “eye-popping” interest rate, 301 F. 3d, at 593
(Rovner, J., dissenting), the plan probably should not be
confirmed.
V
The dissent’s endorsement of the presumptive contract
rate approach rests on two assumptions: (1) “subprime lend-
ing markets are competitive and therefore largely efficient”;
and (2) the risk of default in Chapter 13 is normally no less
than the risk of default at the time of the original loan.
Post, at 492–493. Although the Bankruptcy Code provides
little guidance on the question, we think it highly unlikely
that Congress would endorse either premise.
First, the dissent assumes that subprime loans are negoti-
ated between fully informed buyers and sellers in a classic
free market. But there is no basis for concluding that Con-
gress relied on this assumption when it enacted Chapter
13. Moreover, several considerations suggest that the sub-
prime market is not, in fact, perfectly competitive. To
begin with, used vehicles are regularly sold by means of
tie-in transactions, in which the price of the vehicle is the
subject of negotiation, while the terms of the financing are
dictated by the seller.20 In addition, there is extensive fed-
20 The dissent notes that “[t]ie-ins do not alone make financing markets
noncompetitive; they only cause prices and interest rates to be considered
in tandem rather than separately.” Post, at 495. This statement, while
true, is nonresponsive. If a market prices the cost of goods and the cost
of financing together, then even if that market is perfectly competitive, all
we can know is that the combined price of the goods and the financing is
competitive and efficient. We have no way of determining whether the
allocation of that price between goods and financing would be the same if
the two components were separately negotiated. But the only issue be-
fore us is the cramdown interest rate (the cost of financing); the value of
respondent’s truck (the cost of the goods) is fixed. See Rash, 520 U. S.,
at 960 (setting the value of collateral in Chapter 13 proceedings at the
“price a willing buyer in the debtor’s trade, business, or situation would
pay to obtain like property from a willing seller”). The competitiveness
of the market for cost-cum-financing is thus irrelevant to our analysis.

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482 TILL v. SCS CREDIT CORP.
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eral 21 and state 22 regulation of subprime lending, which not
only itself distorts the market, but also evinces regulators’
belief that unregulated subprime lenders would exploit bor-
rowers’ ignorance and charge rates above what a competitive
market would allow.23 Indeed, Congress enacted the Truth
in Lending Act in part because it believed “consumers would
individually benefit not only from the more informed use of
credit, but also from heightened competition which would re-
sult from more knowledgeable credit shopping.” S. Rep.
No. 96–368, p. 16 (1979).24
Second, the dissent apparently believes that the debtor’s
prebankruptcy default—on a loan made in a market in which
creditors commonly charge the maximum rate of interest al-
lowed by law, Brief for Respondent 16, and in which neither
creditors nor debtors have the protections afforded by Chap-
ter 13—translates into a high probability that the same debt-
or’s confirmed Chapter 13 plan will fail. In our view, how-
ever, Congress intended to create a program under which
plans that qualify for confirmation have a high probability of
success. Perhaps bankruptcy judges currently confirm too
21 For example, the Truth in Lending Act regulates credit transactions
and credit advertising. 15 U. S. C. §§ 1604–1649, 1661–1665b.
22 Usury laws provide the most obvious examples of state regulation of
the subprime market. See, e. g., Colo. Rev. Stat. § 5–2–201 (2003); Fla.
Stat. Ann. § 537.011 (Supp. 2004); Ind. Code § 24–4.5–3–201 (1993); Md.
Com. Law Code Ann. § 12–404(d) (2000).
23 Lending practices in Mississippi, “where there currently is no legal
usury rate,” support this conclusion: In that State, subprime lenders
charge rates “as high as 30 to 40%”—well above the rates that apparently
suffice to support the industry in States like Indiana. Norberg, Consumer
Bankruptcy’s New Clothes: An Empirical Study of Discharge and Debt
Collection in Chapter 13, 7 Am. Bankr. Inst. L. Rev. 415, 438–439 (1999).
24 See also H. R. Rep. No. 1040, 90th Cong., 1st Sess., 17 (1967) (“The
basic premise of the application of disclosure standards to credit advertis-
ing rests in the belief that a substantial portion of consumer purchases are
induced by such advertising and that if full disclosure is not made in such
advertising, the consumer will be deprived of the opportunity to effec-
tively comparison shop for credit”).

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many risky plans, but the solution is to confirm fewer such
plans, not to set default cramdown rates at absurdly high
levels, thereby increasing the risk of default.
Indeed, as Justice Thomas demonstrates, post, at 487
(opinion concurring in judgment), the text of § 1325(a)(5)
(B)(ii) may be read to support the conclusion that Congress
did not intend the cramdown rate to include any compensa-
tion for the risk of default.25 That reading is consistent with
a view that Congress believed Chapter 13’s protections to be
so effective as to make the risk of default negligible. Be-
cause our decision in Rash assumes that cramdown interest
rates are adjusted to “offset,” to the extent possible, the risk
of default, 520 U. S., at 962–963, and because so many judges
who have considered the issue (including the authors of the
four earlier opinions in this case) have rejected the risk-free
approach, we think it too late in the day to endorse that
approach now. Of course, if the text of the statute required
such an approach, that would be the end of the matter. We
think, however, that § 1325(a)(5)(B)(ii)’s reference to “value,
as of the effective date of the plan, of property to be distrib-
uted under the plan” is better read to incorporate all of the
commonly understood components of “present value,” includ-
ing any risk of nonpayment. Justice Thomas’ reading does
emphasize, though, that a presumption that bankruptcy
plans will succeed is more consistent with Congress’ statu-
tory scheme than the dissent’s more cynical focus on bank-
rupt debtors’ “financial instability and . . . proclivity to seek
legal protection,” post, at 493.
Furthermore, the dissent’s two assumptions do not neces-
sarily favor the presumptive contract rate approach. For
one thing, the cramdown provision applies not only to sub-
25 The United States, too, notes that “[t]he text of Section 1325 is consist-
ent with the view that the appropriate discount rate should reflect only
the time value of money and not any risk premium.” Brief for United
States as Amicus Curiae 11, n. 4. The remainder of the United States’
brief, however, advocates the formula approach. See, e. g., id., at 19–28.

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484 TILL v. SCS CREDIT CORP.
Opinion of Stevens, J.
prime loans but also to prime loans negotiated prior to the
change in circumstance ( job loss, for example) that rendered
the debtor insolvent. Relatedly, the provision also applies
in instances in which national or local economic conditions
drastically improved or declined after the original loan was
issued but before the debtor filed for bankruptcy. In either
case, there is every reason to think that a properly risk-
adjusted prime rate will provide a better estimate of the
creditor’s current costs and exposure than a contract rate set
in different times.
Even more important, if all relevant information about the
debtor’s circumstances, the creditor’s circumstances, the na-
ture of the collateral, and the market for comparable loans
were equally available to both debtor and creditor, then
in theory the formula and presumptive contract rate ap-
proaches would yield the same final interest rate. Thus, we
principally differ with the dissent not over what final rate
courts should adopt but over which party (creditor or debtor)
should bear the burden of rebutting the presumptive rate
(prime or contract, respectively).
Justice Scalia identifies four “relevant factors bearing
on risk premium[:] (1) the probability of plan failure; (2) the
rate of collateral depreciation; (3) the liquidity of the collat-
eral market; and (4) the administrative expenses of enforce-
ment.” Post, at 499. In our view, any information debtors
have about any of these factors is likely to be included in
their bankruptcy filings, while the remaining information
will be far more accessible to creditors (who must collect in-
formation about their lending markets to remain competi-
tive) than to individual debtors (whose only experience with
those markets might be the single loan at issue in the case).
Thus, the formula approach, which begins with a concededly
low estimate of the appropriate interest rate and requires
the creditor to present evidence supporting a higher rate,
places the evidentiary burden on the more knowledgeable

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485 Cite as: 541 U. S. 465 (2004)
Thomas, J., concurring in judgment
party, thereby facilitating more accurate calculation of the
appropriate interest rate.
If the rather sketchy data uncovered by the dissent sup-
port an argument that Chapter 13 of the Bankruptcy Code
should mandate application of the presumptive contract rate
approach (rather than merely an argument that bankruptcy
judges should exercise greater caution before approving debt
adjustment plans), those data should be forwarded to Con-
gress. We are not persuaded, however, that the data under-
mine our interpretation of the statutory scheme Congress
has enacted.
The judgment of the Court of Appeals is reversed, and the
case is remanded with instructions to remand the case to the
Bankruptcy Court for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, concurring in the judgment.
This case presents the issue of what the proper method is
for discounting deferred payments to present value and what
compensation the creditor is entitled to in calculating the
appropriate discount rate of interest. Both the plurality
and the dissent agree that “[a] debtor’s promise of future
payments is worth less than an immediate payment of the
same total amount because the creditor cannot use the
money right away, inflation may cause the value of the dollar
to decline before the debtor pays, and there is always some
risk of nonpayment.” Ante, at 474; post, at 491. Thus, the
plurality and the dissent agree that the proper method for
discounting deferred payments to present value should take
into account each of these factors, but disagree over the
proper starting point for calculating the risk of nonpayment.
I agree that a “promise of future payments is worth less
than an immediate payment” of the same amount, in part
because of the risk of nonpayment. But this fact is irrele-
vant. The statute does not require that the value of the

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486 TILL v. SCS CREDIT CORP.
Thomas, J., concurring in judgment
promise to distribute property under the plan be no less than
the allowed amount of the secured creditor’s claim. It re-
quires only that “the value . . . of property to be distributed
under the plan,” at the time of the effective date of the plan,
be no less than the amount of the secured creditor’s claim.
11 U. S. C. § 1325(a)(5)(B)(ii) (emphasis added). Both the
plurality and the dissent ignore the clear text of the statute
in an apparent rush to ensure that secured creditors are not
undercompensated in bankruptcy proceedings. But the
statute that Congress enacted does not require a debtor-
specific risk adjustment that would put secured creditors in
the same position as if they had made another loan. It is
for this reason that I write separately.
I
“It is well established that ‘when the statute’s language
is plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to enforce
it according to its terms.’ ” Lamie v. United States Trustee,
540 U. S. 526, 534 (2004) (quoting Hartford Underwriters Ins.
Co. v. Union Planters Bank, N. A., 530 U. S. 1, 6 (2000)).
Section 1325(a)(5)(B) provides that “with respect to each al-
lowed secured claim provided for by the plan,” “the value,
as of the effective date of the plan, of property to be distrib-
uted under the plan on account of such claim [must] not [be]
less than the allowed amount of such claim.” Thus, the stat-
ute requires a bankruptcy court to make at least three sepa-
rate determinations. First, a court must determine the al-
lowed amount of the claim. Second, a court must determine
what is the “property to be distributed under the plan.”
Third, a court must determine the “value, as of the effective
date of the plan,” of the property to be distributed.
The dispute in this case centers on the proper method to
determine the “value, as of the effective date of the plan, of
property to be distributed under the plan.” The require-
ment that the “value” of the property to be distributed be

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487 Cite as: 541 U. S. 465 (2004)
Thomas, J., concurring in judgment
determined “as of the effective date of the plan” incorporates
the principle of the time value of money. To put it simply,
$4,000 today is worth more than $4,000 to be received 17
months from today because if received today, the $4,000 can
be invested to start earning interest immediately.1 See G.
Munn, F. Garcia, & C. Woelfel, Encyclopedia of Banking &
Finance 1015 (rev. 9th ed. 1991). Thus, as we explained in
Rake v. Wade, 508 U. S. 464 (1993), “[w]hen a claim is paid
off pursuant to a stream of future payments, a creditor re-
ceives the ‘present value’ of its claim only if the total amount
of the deferred payments includes the amount of the underly-
ing claim plus an appropriate amount of interest to compen-
sate the creditor for the decreased value of the claim caused
by the delayed payments.” Id., at 472, n. 8.
Respondent argues, and the plurality and the dissent
agree, that the proper interest rate must also reflect the risk
of nonpayment. But the statute contains no such require-
ment. The statute only requires the valuation of the “prop-
erty to be distributed,” not the valuation of the plan (i. e.,
the promise to make the payments itself). Thus, in order
for a plan to satisfy § 1325(a)(5)(B)(ii), the plan need only pro-
pose an interest rate that will compensate a creditor for the
fact that if he had received the property immediately rather
than at a future date, he could have immediately made use
of the property. In most, if not all, cases, where the plan
proposes simply a stream of cash payments, the appropriate
risk-free rate should suffice.
Respondent here would certainly be acutely aware of any
risk of default inherent in a Chapter 13 plan, but it is nonsen-
sical to speak of a debtor’s risk of default being inherent in
the value of “property” unless that property is a promise or
1 For example, if the relevant interest rate is 10%, receiving $4,000 one
year from now is the equivalent to receiving $3,636.36 today. In other
words, an investor would be indifferent to receiving $3,636.36 today and
receiving $4,000 one year from now because each will equal $4,000 one
year from now.

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488 TILL v. SCS CREDIT CORP.
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a debt. Suppose, for instance, that it is currently time A,
the property to be distributed is a house, and it will be
distributed at time B. Although market conditions might
cause the value of the house to fluctuate between time A and
time B, the fluctuating value of the house itself has nothing
to do with the risk that the debtor will not deliver the house
at time B. The value of the house, then, can be and is deter-
mined entirely without any reference to any possibility that
a promise to transfer the house would not be honored. So
too, then, with cash: the value of the cash can be and is deter-
mined without any inclusion of any risk that the debtor will
fail to transfer the cash at the appropriate time.
The dissent might be correct that the use of the prime
rate,2 even with a small risk adjustment, “will systematically
undercompensate secured creditors for the true risks of de-
fault.” Post, at 492.3 This systematic undercompensation
might seem problematic as a matter of policy. But, it raises
no problem as a matter of statutory interpretation. Thus,
although there is always some risk of nonpayment when A
promises to repay a debt to B through a stream of payments
over time rather than through an immediate lump-sum pay-
ment, § 1325(a)(5)(B)(ii) does not take this risk into account.
This is not to say that a debtor’s risk of nonpayment can
never be a factor in determining the value of the property
to be distributed. Although “property” is not defined in the
Bankruptcy Code, nothing in § 1325 suggests that “property”
is limited to cash. Rather, “ ‘property’ can be cash, notes,
stock, personal property or real property; in short, anything
of value. ” 7 Collier on Bankruptcy ¶ 1129.03[7][b][i],
p. 1129–44 (rev. 15th ed. 2003) (discussing Chapter 11’s cram-
down provision). And if the “property to be distributed”
2 The prime rate is “[t]he interest rate most closely approximating the
riskless or pure rate for money.” G. Munn, F. Garcia, & C. Woelfel, Ency-
clopedia of Banking & Finance 830 (rev. 9th ed. 1991).
3 Of course, in an efficient market, this risk has been (or will be) built
into the interest rate of the original loan.

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under a Chapter 13 plan is a note (i. e., a promise to pay), for
instance, the value of that note necessarily includes the risk
that the debtor will not make good on that promise. Still,
accounting for the risk of nonpayment in that case is not
equivalent to reading a risk adjustment requirement into the
statute, as in the case of a note, the risk of nonpayment is
part of the value of the note itself.
Respondent argues that “Congress crafted the require-
ments of section 1325(a)(5)(B)(ii) for the protection of credi-
tors, not debtors,” and thus that the relevant interest rate
must account for the true risks and costs associated with a
Chapter 13 debtor’s promise of future payment. Brief for
Respondent 24 (citing Johnson v. Home State Bank, 501 U. S.
78, 87–88 (1991)). In addition to ignoring the plain language
of the statute, which requires no such risk adjustment,
respondent overlooks the fact that secured creditors are
already compensated in part for the risk of nonpayment
through the valuation of the secured claim. In Associates
Commercial Corp. v. Rash, 520 U. S. 953 (1997), we utilized a
secured-creditor-friendly replacement-value standard rather
than the lower foreclosure-value standard for valuing se-
cured claims when a debtor has exercised Chapter 13’s cram-
down option. We did so because the statute at issue in that
case reflected Congress’ recognition that “[i]f a debtor keeps
the property and continues to use it, the creditor obtains at
once neither the property nor its value and is exposed to
double risks: The debtor may again default and the property
may deteriorate from extended use.” Id., at 962.
Further, the plain language of the statute is by no means
specifically debtor protective. As the Court pointed out in
Johnson, supra, at 87–88, § 1325 contains a number of pro-
visions to protect creditors: A bankruptcy court can only
authorize a plan that “has been proposed in good faith,”
§ 1325(a)(3); secured creditors must accept the plan, obtain
the property securing the claim, or “retain the[ir] lien[s]” and
receive under the plan distributions of property which equal

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490 TILL v. SCS CREDIT CORP.
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“not less than the allowed amount of such claim,” § 1325(a)(5);
and a bankruptcy court must ensure that “the debtor will be
able to make all payments under the plan and to comply with
the plan,” § 1325(a)(6). Given the presence of multiple
creditor-specific protections, it is by no means irrational to
assume that Congress opted not to provide further protec-
tion for creditors by requiring a debtor-specific risk adjust-
ment under § 1325(a)(5). Although the dissent may feel that
this is insufficient compensation for secured creditors, given
the apparent rate at which debtors fail to complete their
Chapter 13 plans, see post, at 493, and n. 1, this is a matter
that should be brought to the attention of Congress rather
than resolved by this Court.
II
The allowed amount of the secured claim is $4,000. App.
57. The statute then requires a bankruptcy court to identify
the “property to be distributed” under the plan. Petition-
ers’ Amended Chapter 13 Plan (Plan) provided:
“The future earnings of DEBTOR(S) are submitted to
the supervision and control of this Court, and DEBT-
OR(S) shall pay to the TRUSTEE a sum of $740 . . . per
month in weekly installments by voluntary wage assign-
ment by separate ORDER of the Court in an estimated
amount of $170.77 and continuing for a total plan term
of 36 months unless this Court approves an extension of
the term not beyond 60 months from the date of filing
the Petition herein.” App. to Pet. for Cert. 77a.
From the payments received, the trustee would then make
disbursements to petitioners’ creditors, pro rata among each
class of creditors. The Plan listed one priority claim and
four secured claims. For respondent’s secured claim, peti-
tioners proposed an interest rate of 9.5%. App. 57. Thus,
petitioners proposed to distribute to respondent a stream of
cash payments equaling respondent’s pro rata share of $740
per month for a period of up to 36 months. Id., at 12.

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Scalia, J., dissenting
Although the Plan does not specifically state that “the
property to be distributed” under the Plan is cash payments,
the cash payments are the only “property” specifically listed
for distribution under the Plan. Thus, although the plural-
ity and the dissent imply that the “property to be distrib-
uted” under the Plan is the mere promise to make cash pay-
ments, the plain language of the Plan indicates that the
“property to be distributed” to respondent is up to 36
monthly cash payments, consisting of a pro rata share of $740
per month.
The final task, then, is to determine whether petitioners’
proposed 9.5% interest rate will sufficiently compensate re-
spondent for the fact that instead of receiving $4,000 today,
it will receive $4,000 plus 9.5% interest over a period of up
to 36 months. Because the 9.5% rate is higher than the
risk-free rate, I conclude that it will. I would therefore re-
verse the judgment of the Court of Appeals.
Justice Scalia, with whom The Chief Justice, Justice
O’Connor, and Justice Kennedy join, dissenting.
My areas of agreement with the plurality are substantial.
We agree that, although all confirmed Chapter 13 plans have
been deemed feasible by a bankruptcy judge, some neverthe-
less fail. See ante, at 480. We agree that any deferred pay-
ments to a secured creditor must fully compensate it for the
risk that such a failure will occur. See ante, at 474. Fi-
nally, we agree that adequate compensation may sometimes
require an “ ‘eye-popping’ ” interest rate, and that, if the rate
is too high for the plan to succeed, the appropriate course is
not to reduce it to a more palatable level, but to refuse to
confirm the plan. See ante, at 480–481.
Our only disagreement is over what procedure will more
often produce accurate estimates of the appropriate interest
rate. The plurality would use the prime lending rate—a
rate we know is too low—and require the judge in every case
to determine an amount by which to increase it. I believe

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492 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
that, in practice, this approach will systematically undercom-
pensate secured creditors for the true risks of default.
I would instead adopt the contract rate—i. e., the rate at
which the creditor actually loaned funds to the debtor—as a
presumption that the bankruptcy judge could revise on mo-
tion of either party. Since that rate is generally a good indi-
cator of actual risk, disputes should be infrequent, and it will
provide a quick and reasonably accurate standard.
I
The contract-rate approach makes two assumptions, both
of which are reasonable. First, it assumes that subprime
lending markets are competitive and therefore largely effi-
cient. If so, the high interest rates lenders charge reflect
not extortionate profits or excessive costs, but the actual
risks of default that subprime borrowers present. Lenders
with excessive rates would be undercut by their competitors,
and inefficient ones would be priced out of the market. We
have implicitly assumed market competitiveness in other
bankruptcy contexts. See Bank of America Nat. Trust and
Sav. Assn. v. 203 North LaSalle Street Partnership, 526 U. S.
434, 456–458 (1999). Here the assumption is borne out by
empirical evidence: One study reports that subprime lenders
are nearly twice as likely to be unprofitable as banks, sug-
gesting a fiercely competitive environment. See J. Lane,
Associate Director, Division of Supervision, Federal Deposit
Insurance Corporation, A Regulator’s View of Subprime
Lending: Address at the National Automotive Finance Asso-
ciation Non-Prime Auto Lending Conference 6 (June 18–19,
2002) (available in Clerk of Court’s case file). By relying on
the prime rate, the plurality implicitly assumes that the
prime lending market is efficient, see ante, at 478–479; I see
no reason not to make a similar assumption about the sub-
prime lending market.
The second assumption is that the expected costs of de-
fault in Chapter 13 are normally no less than those at the

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493 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
time of lending. This assumption is also reasonable. Chap-
ter 13 plans often fail. I agree with petitioners that the rel-
evant statistic is the percentage of confirmed plans that fail,
but even resolving that issue in their favor, the risk is still
substantial. The failure rate they offer—which we may
take to be a conservative estimate, as it is doubtless the low-
est one they could find—is 37%. See Girth, The Role of Em-
pirical Data in Developing Bankruptcy Legislation for Indi-
viduals, 65 Ind. L. J. 17, 40–42 (1989) (reporting a 63.1%
success rate).1 In every one of the failed plans making up
that 37%, a bankruptcy judge had found that “the debtor will
be able to make all payments under the plan,” 11 U. S. C.
§ 1325(a)(6), and a trustee had supervised the debtor’s com-
pliance, § 1302. That so many nonetheless failed proves that
bankruptcy judges are not oracles and that trustees cannot
draw blood from a stone.
While court and trustee oversight may provide some mar-
ginal benefit to the creditor, it seems obviously outweighed
by the fact that (1) an already-bankrupt borrower has dem-
onstrated a financial instability and a proclivity to seek legal
protection that other subprime borrowers have not, and
1 The true rate of plan failure is almost certainly much higher. The
Girth study that yielded the 37% figure was based on data for a single
division (Buffalo, New York) from over 20 years ago (1980–1982). See 65
Ind. L. J., at 41. A later study concluded that “the Buffalo division ha[d]
achieved extraordinary results, far from typical for the country as a
whole.” Whitford, The Ideal of Individualized Justice: Consumer Bank-
ruptcy as Consumer Protection, and Consumer Protection in Consumer
Bankruptcy, 68 Am. Bankr. L. J. 397, 411, n. 50 (1994). Although most
of respondent’s figures are based on studies that do not clearly exclude
unconfirmed plans, one study includes enough detail to make the necessary
correction: It finds 32% of filings successful, 18% dismissed without con-
firmation of a plan, and 49% dismissed after confirmation, for a postcon-
firmation failure rate of 60% (i. e., 49%(32%49%)). See Norberg, Con-
sumer Bankruptcy’s New Clothes: An Empirical Study of Discharge and
Debt Collection in Chapter 13, 7 Am. Bankr. Inst. L. Rev. 415, 440–441
(1999). This 60% failure rate is far higher than the 37% reported by
Girth.

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494 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
(2) the costs of foreclosure are substantially higher in bank-
ruptcy because the automatic stay bars repossession without
judicial permission. See § 362. It does not strike me as
plausible that creditors would prefer to lend to individuals
already in bankruptcy than to those for whom bankruptcy is
merely a possibility—as if Chapter 13 were widely viewed
by secured creditors as some sort of godsend. Cf. Dunagan,
Enforcement of Security Interests in Motor Vehicles in
Bankruptcy, 52 Consumer Fin. L. Q. Rep. 191, 197 (1998).
Certainly the record in this case contradicts that implausible
proposition. See App. 48 (testimony of Craig Cook, sales
manager of Instant Auto Finance) (“Q. Are you aware of how
other lenders similar to Instant Auto Finance view credit
applicants who appear to be candidates for Chapter 13 bank-
ruptcy?” “A. Negative[ly] as well”). The better assump-
tion is that bankrupt debtors are riskier than other subprime
debtors—or, at the very least, not systematically less risky.
The first of the two assumptions means that the contract
rate reasonably reflects actual risk at the time of borrowing.
The second means that this risk persists when the debtor
files for Chapter 13. It follows that the contract rate is a
decent estimate, or at least the lower bound, for the appro-
priate interest rate in cramdown.2
The plurality disputes these two assumptions. It argues
that subprime lending markets are not competitive because
“vehicles are regularly sold by means of tie-in transactions,
in which the price of the vehicle is the subject of negotiation,
while the terms of the financing are dictated by the seller.”
2 The contract rate is only a presumption, however, and either party
remains free to prove that a higher or lower rate is appropriate in a partic-
ular case. For example, if market interest rates generally have risen or
fallen since the contract was executed, the contract rate could be adjusted
by the same amount in cases where the difference was substantial enough
that a party chose to make an issue of it.

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Scalia, J., dissenting
Ante, at 481.3 Tie-ins do not alone make financing markets
noncompetitive; they only cause prices and interest rates to
be considered in tandem rather than separately. The force
of the plurality’s argument depends entirely on its claim that
“the terms of the financing are dictated by the seller.” Ibid.
This unsubstantiated assertion is contrary to common expe-
rience. Car sellers routinely advertise their interest rates,
offer promotions like “zero-percent financing,” and engage in
other behavior that plainly assumes customers are sensitive
to interest rates and not just price.4
3 To the extent the plurality argues that subprime lending markets are
not “perfectly competitive,” ante, at 481 (emphasis added), I agree. But
there is no reason to doubt they are reasonably competitive, so that pric-
ing in those markets is reasonably efficient.
4 I confess that this is “nonresponsive” to the argument made in the
plurality’s footnote (that the contract interest rate may not accurately re-
flect risk when set jointly with a car’s sale price), see ante, at 481, n. 20;
it is in response to the quite different argument made in the plurality’s
text (that joint pricing shows that the subprime lending market is not
competitive), see ante, at 481. As to the former issue, the plurality’s foot-
note makes a fair point. When the seller provides financing itself, there
is a possibility that the contract interest rate might not reflect actual risk
because a higher contract interest rate can be traded off for a lower sale
price and vice versa. Nonetheless, this fact is not likely to bias the
contract-rate approach in favor of creditors to any significant degree. If
a creditor offers a promotional interest rate—such as “zero-percent financ-
ing”—in return for a higher sale price, the creditor bears the burden of
showing that the true interest rate is higher than the contract rate. The
opposite tactic—inflating the interest rate and decreasing the sale price—
is constrained at some level by the buyer’s option to finance through a
third party, thus taking advantage of the lower price while avoiding the
higher interest rate. (If a seller were to condition a price discount on
providing the financing itself, the debtor should be entitled to rely on that
condition to rebut the presumption that the contract rate reflects actual
risk.) Finally, the debtor remains free to rebut the contract rate with
any other probative evidence. While joint pricing may introduce some
inaccuracy, the contract rate is still a far better initial estimate than the
prime rate.

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496 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
The plurality also points to state and federal regulation
of lending markets. Ante, at 481–482. It claims that state
usury laws evince a belief that subprime lending markets are
noncompetitive. While that is one conceivable explanation
for such laws, there are countless others. One statistical
and historical study suggests that usury laws are a “primi-
tive means of social insurance” meant to ensure “low interest
rates” for those who suffer financial adversity. Glaeser &
Scheinkman, Neither a Borrower Nor a Lender Be: An Eco-
nomic Analysis of Interest Restrictions and Usury Laws, 41
J. Law & Econ. 1, 26 (1998). Such a rationale does not re-
flect a belief that lending markets are inefficient, any more
than rent controls reflect a belief that real estate markets
are inefficient. Other historical rationales likewise shed no
light on the point at issue here. See id., at 27. The mere
existence of usury laws is therefore weak support for any
position.
The federal Truth in Lending Act, 15 U. S. C. § 1601 et seq.,
not only fails to support the plurality’s position; it positively
refutes it. The plurality claims the Act reflects a belief that
full disclosure promotes competition, see ante, at 482, and
n. 24; the Act itself says as much, see 15 U. S. C. § 1601(a).
But that belief obviously presumes markets are competitive
(or, at least, that they were noncompetitive only because of
the absence of the disclosures the Act now requires). If
lending markets were not competitive—if the terms of fi-
nancing were indeed “dictated by the seller,” ante, at 481—
disclosure requirements would be pointless, since consumers
would have no use for the information.5
As to the second assumption (that the expected costs of
default in Chapter 13 are normally no less than those at the
5 The plurality also argues that regulatory context is relevant because
it “distorts the market.” Ante, at 482. Federal disclosure requirements
do not distort the market in any meaningful sense. And while state usury
laws do, that distortion works only to the benefit of debtors under the
contract-rate approach, since it keeps contract rates artificially low.

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497 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
time of lending), the plurality responds, not that Chapter 13
as currently administered is less risky than subprime lend-
ing generally, but that it would be less risky, if only bank-
ruptcy courts would confirm fewer risky plans. Ante, at
482–483. Of course, it is often quite difficult to predict
which plans will fail. See Norberg, Consumer Bankruptcy’s
New Clothes: An Empirical Study of Discharge and Debt
Collection in Chapter 13, 7 Am. Bankr. Inst. L. Rev. 415, 462
(1999). But even assuming the high failure rate primarily
reflects judicial dereliction rather than unavoidable uncer-
tainty, the plurality’s argument fails for want of any reason
to believe the dereliction will abate. While full compensa-
tion can be attained either by low-risk plans and low interest
rates, or by high-risk plans and high interest rates, it cannot
be attained by high-risk plans and low interest rates, which,
absent cause to anticipate a change in confirmation practices,
is precisely what the formula approach would yield.
The plurality also claims that the contract rate overcom-
pensates creditors because it includes “transaction costs and
overall profits.” Ante, at 477. But the same is true of the
rate the plurality prescribes: The prime lending rate includes
banks’ overhead and profits. These are necessary compo-
nents of any commercial lending rate, since creditors will not
lend money if they cannot cover their costs and return a level
of profit sufficient to prevent their investors from going else-
where. See Koopmans v. Farm Credit Services of Mid-
America, ACA, 102 F. 3d 874, 876 (CA7 1996). The plural-
ity’s criticism might have force if there were reason to
believe subprime lenders made exorbitant profits while
banks did not—but, again, the data suggest otherwise. See
Lane, Regulator’s View of Subprime Lending, at 6.6
6 Some transaction costs are avoided by the creditor in bankruptcy—for
example, loan-origination costs such as advertising. But these are likely
only a minor component of the interest rate. According to the record in
this case, for example, the average interest rate on new-car loans was
roughly 8.5%—only about 0.5% higher than the prime rate and 2.5% higher

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498 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
Finally, the plurality objects that similarly situated credi-
tors might not be treated alike. Ante, at 478, and n. 17.
But the contract rate is only a presumption. If a judge
thinks it necessary to modify the rate to avoid unjustified
disparity, he can do so. For example, if two creditors
charged different rates solely because they lent to the debtor
at different times, the judge could average the rates or use
the more recent one. The plurality’s argument might be
valid against an approach that irrebuttably presumes the
contract rate, but that is not what I propose.7
II
The defects of the formula approach far outweigh those
of the contract-rate approach. The formula approach starts
with the prime lending rate—a number that, while objective
and easily ascertainable, is indisputably too low. It then ad-
than the risk-free treasury rate. App. 43 (testimony of Professor Steve
Russell). And the 2% difference between prime and treasury rates repre-
sented “mostly . . . risk [and] to some extent transaction costs.” Id., at 42.
These figures suggest that loan-origination costs included in the new-car
loan and prime rates but not in the treasury rate are likely only a fraction
of a percent. There is no reason to think they are substantially higher in
the subprime auto lending market. Any transaction costs the creditor
avoids in bankruptcy are thus far less than the additional ones he incurs.
7 The plurality’s other, miscellaneous criticisms do not survive scrutiny
either. That the cramdown provision applies to prime as well as sub-
prime loans, ante, at 483–484, proves nothing. Nor is there any substance
to the argument that the formula approach will perform better where
“national or local economic conditions drastically improved or declined
after the original loan was issued.” Ante, at 484. To the extent such
economic changes are reflected by changes in the prime rate, the contract
rate can be adjusted by the same amount. See n. 2, supra. And to the
extent they are not, they present the same problem under either approach:
When a party disputes the presumption, the court must gauge the signifi-
cance of the economic change and adjust accordingly. The difference,
again, is that the contract-rate approach starts with a number that (but
for the economic change) is reasonably accurate, while the formula ap-
proach starts with a number that (with or without the economic change)
is not even close.

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Scalia, J., dissenting
justs by adding a risk premium that, unlike the prime rate,
is neither objective nor easily ascertainable. If the risk pre-
mium is typically small relative to the prime rate—as the
1.5% premium added to the 8% prime rate by the court below
would lead one to believe—then this subjective element of
the computation might be forgiven. But in fact risk premi-
ums, if properly computed, would typically be substantial.
For example, if the 21% contract rate is an accurate reflec-
tion of risk in this case, the risk premium would be 13%—
nearly two-thirds of the total interest rate. When the risk
premium is the greater part of the overall rate, the formula
approach no longer depends on objective and easily ascer-
tainable numbers. The prime rate becomes the objective
tail wagging a dog of unknown size.
As I explain below, the most relevant factors bearing on
risk premium are (1) the probability of plan failure; (2) the
rate of collateral depreciation; (3) the liquidity of the collat-
eral market; and (4) the administrative expenses of enforce-
ment. Under the formula approach, a risk premium must
be computed in every case, so judges will invariably grap-
ple with these imponderables. Under the contract-rate ap-
proach, by contrast, the task of assessing all these risk fac-
tors is entrusted to the entity most capable of undertaking
it: the market. See Bank of America, 526 U. S., at 457
(“[T]he best way to determine value is exposure to a mar-
ket”). All the risk factors are reflected (assuming market
efficiency) in the debtor’s contract rate—a number readily
found in the loan document. If neither party disputes it, the
bankruptcy judge’s task is at an end. There are straightfor-
ward ways a debtor could dispute it—for example, by show-
ing that the creditor is now substantially oversecured, or
that some other lender is willing to extend credit at a lower
rate. But unlike the formula approach, which requires dif-
ficult estimation in every case, the contract-rate approach
requires it only when the parties choose to contest the issue.

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500 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
The plurality defends the formula approach on the ground
that creditors have better access to the relevant information.
Ante, at 484–485. But this is not a case where we must
choose between one initial estimate that is too low and an-
other that is too high. Rather, the choice is between one
that is far too low and another that is generally reasonably
accurate (or, if anything, a bit too low). In these circum-
stances, consciously choosing the less accurate estimate
merely because creditors have better information smacks
more of policymaking than of faithful adherence to the statu-
tory command that the secured creditor receive property
worth “not less than the allowed amount” of its claim, 11
U. S. C. § 1325(a)(5)(B)(ii) (emphasis added). Moreover, the
plurality’s argument assumes it is plausible—and desirable—
that the issue will be litigated in most cases. But the costs
of conducting a detailed risk analysis and defending it in
court are prohibitively high in relation to the amount at
stake in most consumer loan cases. Whatever approach we
prescribe, the norm should be—and undoubtedly will be—
that the issue is not litigated because it is not worth litigat-
ing. Given this reality, it is far more important that the
initial estimate be accurate than that the burden of proving
inaccuracy fall on the better informed party.
There is no better demonstration of the inadequacies of
the formula approach than the proceedings in this case.
Petitioners’ economics expert testified that the 1.5% risk pre-
mium was “very reasonable” because Chapter 13 plans are
“supposed to be financially feasible” and “the borrowers are
under the supervision of the court.” App. 43. Nothing in
the record shows how these two platitudes were somehow
manipulated to arrive at a figure of 1.5%. It bears repeating
that feasibility determinations and trustee oversight do not
prevent at least 37% of confirmed Chapter 13 plans from fail-
ing. On cross-examination, the expert admitted that he had
only limited familiarity with the subprime auto lending mar-
ket and that he was not familiar with the default rates or the

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501 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
costs of collection in that market. Id., at 44–45. In light of
these devastating concessions, it is impossible to view the
1.5% figure as anything other than a smallish number picked
out of a hat.
Based on even a rudimentary financial analysis of the facts
of this case, the 1.5% figure is obviously wrong—not just off
by a couple percent, but probably by roughly an order of
magnitude. For a risk premium to be adequate, a hypotheti-
cal, rational creditor must be indifferent between accepting
(1) the proposed risky stream of payments over time and
(2) immediate payment of its present value in a lump sum.
Whether he is indifferent—i. e., whether the risk premium
added to the prime rate is adequate—can be gauged by com-
paring benefits and costs: on the one hand, the expected
value of the extra interest, and on the other, the expected
costs of default.
Respondent was offered a risk premium of 1.5% on top of
the prime rate of 8%. If that premium were fully paid as
the plan contemplated, it would yield about $60.8 If the
debtor defaulted, all or part of that interest would not be
paid, so the expected value is only about $50.9 The prime
rate itself already includes some compensation for risk; as it
turns out, about the same amount, yielding another $50.10
8 Given its priority, and in light of the amended plan’s reduced debtor
contributions, the $4,000 secured claim would be fully repaid by about the
end of the second year of the plan. The average balance over that period
would be about $2,000, i. e., half the initial balance. The total interest
premium would therefore be 1.5%2$2,000$60. In this and all fol-
lowing calculations, I do not adjust for time value, as timing effects have
no substantial effect on the conclusion.
9 Assuming a 37% rate of default that results on average in only half the
interest’s being paid, the expected value is $60(137%2), or about $50.
10 According to the record in this case, the prime rate at the time
of filing was 2% higher than the risk-free treasury rate, and the differ-
ence represented “mostly . . . risk [and] to some extent transaction
costs.” App. 42 (testimony of Professor Steve Russell); see also Federal
Reserve Board, Selected Interest Rates, http://www.federalreserve.gov/
releases/h15/data.htm (as visited Apr. 19, 2004) (available in Clerk of

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502 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
Given the 1.5% risk premium, then, the total expected bene-
fit to respondent was about $100. Against this we must
weigh the expected costs of default. While precise calcula-
tions are impossible, rough estimates convey a sense of
their scale.
The first cost of default involves depreciation. If the
debtor defaults, the creditor can eventually repossess and
sell the collateral, but by then it may be substantially less
valuable than the remaining balance due—and the debtor
may stop paying long before the creditor receives permission
to repossess. When petitioners purchased their truck in
this case, its value was almost equal to the principal balance
on the loan.11 By the time the plan was confirmed, however,
the truck was worth only $4,000, while the balance on the
loan was $4,895. If petitioners were to default on their
Chapter 13 payments and if respondent suffered the same
relative loss from depreciation, it would amount to about
$550.12
The second cost of default involves liquidation. The
$4,000 to which respondent would be entitled if paid in a
lump sum reflects the replacement value of the vehicle, i. e.,
the amount it would cost the debtor to purchase a similar
used truck. See Associates Commercial Corp. v. Rash, 520
U. S. 953, 965 (1997). If the debtor defaults, the creditor
cannot sell the truck for that amount; it receives only a lesser
Court’s case file) (historical data showing prime rate typically exceeding
3-month constant-maturity treasury rate by 2%–3.5%). If “mostly”
means about three-quarters of 2%, then the risk compensation included in
the prime rate is 1.5%. Because this figure happens to be the same as
the risk premium over prime, the expected value is similarly $50. See
nn. 8–9, supra.
11 The truck was initially worth $6,395; the principal balance on the loan
was about $6,426.
12 On the original loan, depreciation ($6,395$4,000, or $2,395) exceeded
loan repayment ($6,426$4,895, or $1,531) by $864, i. e., 14% of the original
truck value of $6,395. Applying the same percentage to the new $4,000
truck value yields approximately $550.

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503 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
foreclosure value because collateral markets are not per-
fectly liquid and there is thus a spread between what a buyer
will pay and what a seller will demand. The foreclosure
value of petitioners’ truck is not in the record, but, using the
relative liquidity figures in Rash as a rough guide, respond-
ent would suffer a further loss of about $450.13
The third cost of default consists of the administrative ex-
penses of foreclosure. While a Chapter 13 plan is in effect,
the automatic stay prevents secured creditors from repos-
sessing their collateral, even if the debtor fails to pay. See
11 U. S. C. § 362. The creditor’s attorney must move the
bankruptcy court to lift the stay. § 362(d). In the District
where this case arose, the filing fee for such motions is now
$150. See United States Bankruptcy Court for the South-
ern District of Indiana, Schedule of Bankruptcy Fees (Nov.
1, 2003) (available in Clerk of Court’s case file). And the
standard attorney’s fee for such motions, according to one
survey, is $350 in Indiana and as high as $875 in other States.
See J. Cossitt, Chapter 13 Attorney Fee Survey, American
Bankruptcy Institute Annual Spring Meeting (Apr. 10–13,
2003) (available in Clerk of Court’s case file). Moreover,
bankruptcy judges will often excuse first offenses, so foreclo-
sure may require multiple trips to court. The total ex-
pected administrative expenses in the event of default could
reasonably be estimated at $600 or more.
I have omitted several other costs of default, but the point
is already adequately made. The three figures above total
$1,600. Even accepting petitioners’ low estimate of the plan
failure rate, a creditor choosing the stream of future pay-
ments instead of the immediate lump sum would be selecting
an alternative with an expected cost of about $590 ($1,600
multiplied by 37%, the chance of failure) and an expected
13 The truck in Rash had a replacement value of $41,000 and a foreclo-
sure value of $31,875, i. e., 22% less. 520 U. S., at 957. If the market in
this case had similar liquidity and the truck were repossessed after losing
half its remaining value, the loss would be 22% of $2,000, or about $450.

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504 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
benefit of about $100 (as computed above). No rational
creditor would make such a choice. The risk premium over
prime necessary to make these costs and benefits equal is in
the neighborhood of 16%, for a total interest rate of 24%.14
Of course, many of the estimates I have made can be dis-
puted. Perhaps the truck will depreciate more slowly now
than at first, perhaps the collateral market is more liquid
than the one in Rash, perhaps respondent can economize on
attorney’s fees, and perhaps there is some reason (other than
judicial optimism) to think the Tills were unlikely to default.
I have made some liberal assumptions,15 but also some con-
servative ones.16 When a risk premium is off by an order of
magnitude, one’s estimates need not be very precise to show
that it cannot possibly be correct.
In sum, the 1.5% premium adopted in this case is far below
anything approaching fair compensation. That result is not
unusual, see, e. g., In re Valenti, 105 F. 3d 55, 64 (CA2 1997)
(recommending a 1%–3% premium over the treasury rate—
i. e., approximately a 0% premium over prime); it is the en-
tirely predictable consequence of a methodology that tells
bankruptcy judges to set interest rates based on highly im-
ponderable factors. Given the inherent uncertainty of the
enterprise, what heartless bankruptcy judge can be expected
to demand that the unfortunate debtor pay triple the prime
rate as a condition of keeping his sole means of transporta-
tion? It challenges human nature.
14 A 1.5% risk premium plus a 1.5% risk component in the prime rate
yielded an expected benefit of about $100, see supra, at 501–502, so, to
yield $590, the total risk compensation would have to be 5.9 times as high,
i. e., almost 18%, or a 16.5% risk premium over prime.
15 For example, by ignoring the possibility that the creditor might re-
cover some of its undersecurity as an unsecured claimant, that the plan
might fail only after full repayment of secured claims, or that an oversec-
ured creditor might recover some of its expenses under 11 U. S. C. § 506(b).
16 For example, by assuming a failure rate of 37%, cf. n. 1, supra, and by
ignoring all costs of default other than the three mentioned.

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505 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
III
Justice Thomas rejects both the formula approach and
the contract-rate approach. He reads the statutory phrase
“property to be distributed under the plan,” 11 U. S. C.
§ 1325(a)(5)(B)(ii), to mean the proposed payments if made
as the plan contemplates, so that the plan need only pay the
risk-free rate of interest. Ante, at 487 (opinion concurring
in judgment). I would instead read this phrase to mean the
right to receive payments that the plan vests in the creditor
upon confirmation. Because there is no guarantee that the
promised payments will in fact be made, the value of this
property right must account for the risk of nonpayment.
Viewed in isolation, the phrase is susceptible of either
meaning. Both the promise to make payments and the pro-
posed payments themselves are property rights, the former
“to be distributed under the plan” immediately upon confir-
mation, and the latter over the life of the plan. Context,
however, supports my reading. The cramdown option which
the debtors employed here is only one of three routes to con-
firmation. The other two—creditor acceptance and collat-
eral surrender, §§ 1325(a)(5)(A), (C)—are both creditor pro-
tective, leaving the secured creditor roughly as well off as
he would have been had the debtor not sought bankruptcy
protection. Given this, it is unlikely the third option was
meant to be substantially underprotective; that would ren-
der it so much more favorable to debtors that few would ever
choose one of the alternatives.
The risk-free approach also leads to anomalous results.
Justice Thomas admits that, if a plan distributes a note
rather than cash, the value of the “property to be distrib-
uted” must reflect the risk of default on the note. Ante, at
488–489. But there is no practical difference between obli-
gating the debtor to make deferred payments under a plan
and obligating the debtor to sign a note that requires those
same payments. There is no conceivable reason why Con-

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506 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
gress would give secured creditors risk compensation in one
case but not the other.
Circuit authority uniformly rejects the risk-free approach.
While Circuits addressing the issue are divided over how to
calculate risk, to my knowledge all of them require some
compensation for risk, either explicitly or implicitly. See In
re Valenti, supra, at 64 (treasury rate plus 1%–3% risk pre-
mium); GMAC v. Jones, 999 F. 2d 63, 71 (CA3 1993) (contract
rate); United Carolina Bank v. Hall, 993 F. 2d 1126, 1131
(CA4 1993) (creditor’s rate for similar loans, but not higher
than contract rate); In re Smithwick, 121 F. 3d 211, 214 (CA5
1997) (contract rate); In re Kidd, 315 F. 3d 671, 678 (CA6
2003) (market rate for similar loans); In re Till, 301 F. 3d
583, 592–593 (CA7 2002) (case below) (contract rate); In re
Fisher, 930 F. 2d 1361, 1364 (CA8 1991) (market rate for simi-
lar loans) (interpreting parallel Chapter 12 provision); In re
Fowler, 903 F. 2d 694, 698 (CA9 1990) (prime rate plus risk
premium); In re Hardzog, 901 F. 2d 858, 860 (CA10 1990)
(market rate for similar loans, but not higher than contract
rate) (Chapter 12); In re Southern States Motor Inns, Inc.,
709 F. 2d 647, 652–653 (CA11 1983) (market rate for similar
loans) (interpreting similar Chapter 11 provision); see also 8
Collier on Bankruptcy ¶ 1325.06[3][b], p. 1325–37 (rev. 15th
ed. 2004). Justice Thomas identifies no decision adopting
his view.
Nor does our decision in Rash, 520 U. S. 953, support the
risk-free approach. There we considered whether a secured
creditor’s claim should be valued at what the debtor would
pay to replace the collateral or at the lower price the creditor
would receive from a foreclosure sale. Justice Thomas
contends that Rash selected the former in order to compen-
sate creditors for the risk of plan failure, and that, having
compensated them once in that context, we need not do so
again here. Ante, at 489. I disagree with this reading of
Rash. The Bankruptcy Code provides that “value shall be
determined in light of the purpose of the valuation and of the

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507 Cite as: 541 U. S. 465 (2004)
Scalia, J., dissenting
proposed disposition or use of [the] property.” 11 U. S. C.
§ 506(a). Rash held that the foreclosure-value approach
failed to give effect to this language, because it assigned the
same value whether the debtor surrendered the collateral or
was allowed to retain it in exchange for promised payments.
520 U. S., at 962. “From the creditor’s perspective as well
as the debtor’s, surrender and retention are not equivalent
acts.” Ibid. We did point out that retention entails risks
for the creditor that surrender does not. Id., at 962–963.
But we made no effort to correlate that increased risk with
the difference between replacement and foreclosure value.
And we also pointed out that retention benefits the debtor
by allowing him to continue to use the property—a factor
we considered “[o]f prime significance.” Id., at 963. Rash
stands for the proposition that surrender and retention are
fundamentally different sorts of “disposition or use,” calling
for different valuations. Nothing in the opinion suggests
that we thought the valuation difference reflected the degree
of increased risk, or that we adopted the replacement-value
standard in order to compensate for increased risk. To the
contrary, we said that the debtor’s “actual use . . . is the
proper guide under a prescription hinged to the property’s
‘disposition or use.’ ” Ibid.
If Congress wanted to compensate secured creditors for
the risk of plan failure, it would not have done so by prescrib-
ing a particular method of valuing collateral. A plan may
pose little risk even though the difference between foreclo-
sure and replacement values is substantial, or great risk
even though the valuation difference is small. For example,
if a plan proposes immediate cash payment to the secured
creditor, he is entitled to the higher replacement value under
Rash even though he faces no risk at all. If the plan calls
for deferred payments but the collateral consists of listed
securities, the valuation difference may be trivial, but the
creditor still faces substantial risks. And a creditor over-
secured in even the slightest degree at the time of bank-

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508 TILL v. SCS CREDIT CORP.
Scalia, J., dissenting
ruptcy derives no benefit at all from Rash, but still faces
some risk of collateral depreciation.17
There are very good reasons for Congress to prescribe full
risk compensation for creditors. Every action in the free
market has a reaction somewhere. If subprime lenders are
systematically undercompensated in bankruptcy, they will
charge higher rates or, if they already charge the legal maxi-
mum under state law, lend to fewer of the riskiest borrowers.
As a result, some marginal but deserving borrowers will be
denied vehicle loans in the first place. Congress evidently
concluded that widespread access to credit is worth pre-
serving, even if it means being ungenerous to sympathetic
debtors.
* * *
Today’s judgment is unlikely to burnish the Court’s repu-
tation for reasoned decisionmaking. Eight Justices are in
agreement that the rate of interest set forth in the debtor’s
approved plan must include a premium for risk. Of those
eight, four are of the view that beginning with the contract
rate would most accurately reflect the actual risk, and four
are of the view that beginning with the prime lending rate
would do so. The ninth Justice takes no position on the lat-
ter point, since he disagrees with the eight on the former
point; he would reverse because the rate proposed here,
being above the risk-free rate, gave respondent no cause for
complaint. Because I read the statute to require full risk
compensation, and because I would adopt a valuation method
that has a realistic prospect of enforcing that directive,
I respectfully dissent.
17 It is true that, if the debtor defaults, one of the costs the creditor
suffers is the cost of liquidating the collateral. See supra, at 502–503.
But it is illogical to “compensate” for this risk by requiring all plans to
pay the full cost of liquidation (replacement value minus foreclosure
value), rather than an amount that reflects the possibility that liquidation
will actually be necessary and that full payments will not be made.

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509 OCTOBER TERM, 2003
Syllabus
TENNESSEE v. LANE et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 02–1667. Argued January 13, 2004—Decided May 17, 2004
Respondent paraplegics filed this action for damages and equitable relief,
alleging that Tennessee and a number of its counties had denied them
physical access to that State’s courts in violation of Title II of the
Americans with Disabilities Act of 1990 (ADA), which provides: “[N]o
qualified individual with a disability shall, by reason of such disability,
be excluded from participation or denied the benefits of the services,
programs or activities of a public entity,” 42 U. S. C. § 12132. After the
District Court denied the State’s motion to dismiss on Eleventh Amend-
ment immunity grounds, the Sixth Circuit held the appeal in abeyance
pending Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356.
This Court later ruled in Garrett that the Eleventh Amendment bars
private money damages actions for state violations of ADA Title I,
which prohibits employment discrimination against the disabled. The
en banc Sixth Circuit then issued its Popovich decision, in which it inter-
preted Garrett to bar private ADA suits against States based on equal
protection principles, but not those relying on due process, and there-
fore permitted a Title II damages action to proceed despite the State’s
immunity claim. Thereafter, a Sixth Circuit panel affirmed the dis-
missal denial in this case, explaining that respondents’ claims were not
barred because they were based on due process principles. In response
to a rehearing petition arguing that Popovich did not control because
respondents’ complaint did not allege due process violations, the panel
filed an amended opinion, explaining that due process protects the right
of access to the courts, and that the evidence before Congress when it
enacted Title II established, inter alia, that physical barriers in court-
houses and courtrooms have had the effect of denying disabled people
the opportunity for such access.
Held: As it applies to the class of cases implicating the fundamental right
of access to the courts, Title II constitutes a valid exercise of Congress’
authority under § 5 of the Fourteenth Amendment to enforce that
Amendment’s substantive guarantees. Pp. 516–534.
(a) Determining whether Congress has constitutionally abrogated a
State’s Eleventh Amendment immunity requires resolution of two predi-
cate questions: (1) whether Congress unequivocally expressed its intent
to abrogate; and (2), if so, whether it acted pursuant to a valid grant of

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510 TENNESSEE v. LANE
Syllabus
constitutional authority. Kimel v. Florida Bd. of Regents, 528 U. S. 62,
73. The first question is easily answered here, since the ADA specifi-
cally provides for abrogation. See § 12202. With regard to the second
question, Congress can abrogate state sovereign immunity pursuant to
a valid exercise of its power under § 5 of the Fourteenth Amendment.
E. g., Fitzpatrick v. Bitzer, 427 U. S. 445, 456. That power is not, how-
ever, unlimited. While Congress must have a wide berth in devising
appropriate remedial and preventative measures for unconstitutional ac-
tions, those measures may not work a “substantive change in the gov-
erning law.” City of Boerne v. Flores, 521 U. S. 507, 519. In Boerne,
the Court set forth the test for distinguishing between permissible re-
medial legislation and unconstitutional substantive redefinition: Section
5 legislation is valid if it exhibits “a congruence and proportionality”
between an injury and the means adopted to prevent or remedy it. Id.,
at 520. Applying the Boerne test in Garrett, the Court concluded that
ADA Title I was not a valid exercise of Congress’ § 5 power because the
historical record and the statute’s broad sweep suggested that Title I’s
true aim was not so much enforcement, but an attempt to “rewrite” this
Court’s Fourteenth Amendment jurisprudence. 531 U. S., at 372–374.
In view of significant differences between Titles I and II, however, Gar-
rett left open the question whether Title II is a valid exercise of Con-
gress’ § 5 power, id., at 360, n. 1. Pp. 517–522.
(b) Title II is a valid exercise of Congress’ § 5 enforcement power.
Pp. 522–534.
(1) The Boerne inquiry’s first step requires identification of the con-
stitutional rights Congress sought to enforce when it enacted Title II.
Garrett, 531 U. S., at 365. Like Title I, Title II seeks to enforce the
Fourteenth Amendment’s prohibition on irrational disability discrimina-
tion. Id., at 366. But it also seeks to enforce a variety of other basic
constitutional guarantees, including some, like the right of access to the
courts here at issue, infringements of which are subject to heightened
judicial scrutiny. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 336–337.
Whether Title II validly enforces such constitutional rights is a question
that “must be judged with reference to the historical experience which
it reflects.” E. g., South Carolina v. Katzenbach, 383 U. S. 301, 308.
Congress enacted Title II against a backdrop of pervasive unequal treat-
ment of persons with disabilities in the administration of state services
and programs, including systematic deprivations of fundamental rights.
The historical experience that Title II reflects is also documented in the
decisions of this and other courts, which have identified unconstitutional
treatment of disabled persons by state agencies in a variety of public
programs and services. With respect to the particular services at issue,
Congress learned that many individuals, in many States, were being
excluded from courthouses and court proceedings by reason of their dis-

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511 Cite as: 541 U. S. 509 (2004)
Syllabus
abilities. A Civil Rights Commission report before Congress showed
that some 76% of public services and programs housed in state-owned
buildings were inaccessible to and unusable by such persons. Congress
also heard testimony from those persons describing the physical inacces-
sibility of local courthouses. And its appointed task force heard numer-
ous examples of their exclusion from state judicial services and pro-
grams, including failure to make courtrooms accessible to witnesses
with physical disabilities. The sheer volume of such evidence far ex-
ceeds the record in last Term’s Nevada Dept. of Human Resources v.
Hibbs, 538 U. S. 721, 728–733, in which the Court approved the family-
care leave provision of the Family and Medical Leave Act of 1993 as
valid § 5 legislation. Congress’ finding in the ADA that “discrimination
against individuals with disabilities persists in such critical areas as . . .
access to public services,” § 12101(a)(3), together with the extensive rec-
ord of disability discrimination that underlies it, makes clear that inade-
quate provision of public services and access to public facilities was an
appropriate subject for prophylactic legislation. Pp. 522–529.
(2) Title II is an appropriate response to this history and pattern
of unequal treatment. Unquestionably, it is valid § 5 legislation as it
applies to the class of cases implicating the accessibility of judicial serv-
ices. Congress’ chosen remedy for the pattern of exclusion and discrim-
ination at issue, Title II’s requirement of program accessibility, is con-
gruent and proportional to its object of enforcing the right of access to
the courts. The long history of unequal treatment of disabled persons
in the administration of judicial services has persisted despite several
state and federal legislative efforts to remedy the problem. Faced with
considerable evidence of the shortcomings of these previous efforts,
Congress was justified in concluding that the difficult and intractable
problem of disability discrimination warranted added prophylactic meas-
ures. Hibbs, 538 U. S., at 737. The remedy Congress chose is never-
theless a limited one. Recognizing that failure to accommodate persons
with disabilities will often have the same practical effect as outright
exclusion, Congress required the States to take reasonable measures to
remove architectural and other barriers to accessibility. § 12132. But
Title II does not require States to employ any and all means to make
judicial services accessible or to compromise essential eligibility criteria
for public programs. It requires only “reasonable modifications” that
would not fundamentally alter the nature of the service provided, and
only when the individual seeking modification is otherwise eligible for
the service. Ibid. Title II’s implementing regulations make clear that
the reasonable modification requirement can be satisfied in various
ways, including less costly measures than structural changes. This
duty to accommodate is perfectly consistent with the well-established
due process principle that, within the limits of practicability, a State

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512 TENNESSEE v. LANE
Syllabus
must afford to all individuals a meaningful opportunity to be heard in
its courts. Boddie v. Connecticut, 401 U. S. 371, 379. A number of
affirmative obligations flow from this principle. Cases such as Boddie,
Griffin v. Illinois, 351 U. S. 12, and Gideon v. Wainwright, 372 U. S. 335,
make clear that ordinary considerations of cost and convenience alone
cannot justify a State’s failure to provide individuals with a meaningful
right of access to the courts. Judged against this backdrop, Title II’s
affirmative obligation to accommodate is a reasonable prophylactic
measure, reasonably targeted to a legitimate end. Pp. 530–534.
315 F. 3d 680, affirmed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concur-
ring opinion, in which Ginsburg, J., joined, post, p. 534. Ginsburg, J.,
filed a concurring opinion, in which Souter and Breyer, JJ., joined, post,
p. 535. Rehnquist, C. J., filed a dissenting opinion, in which Kennedy
and Thomas, JJ., joined, post, p. 538. Scalia, J., post, p. 554, and Thomas,
J., post, p. 565, filed dissenting opinions.
Michael E. Moore, Solicitor General of Tennessee, argued
the cause for petitioner. With him on the briefs were Paul
G. Summers, Attorney General, S. Elizabeth Martin, and
Mary Martelle Collier.
William J. Brown argued the cause for the private re-
spondents. With him on the brief were Samuel R. Bagen-
stos and Thomas C. Goldstein.
Deputy Solicitor General Clement argued the cause for
the United States urging affirmance. With him on the brief
were Solicitor General Olson, Assistant Attorney General
Acosta, Patricia A. Millett, Jessica Dunsay Silver, Sarah
E. Harrington, and Kevin Russell.*
*A brief of amici curiae urging reversal was filed for the State of Ala-
bama et al. by William H. Pryor, Jr., Attorney General of Alabama, Na-
than A. Forrester, Solicitor General, Gene C. Schaerr, and Richard H.
Sinkfield III, and by the Attorneys General for their respective States as
follows: Jon Bruning of Nebraska, Brian Sandoval of Nevada, Wayne
Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, Pat-
rick J. Crank of Wyoming, and Mark L. Shurtleff of Utah.
Briefs of amici curiae urging affirmance were filed for the State of
Kansas et al. by Phill Kline, Attorney General of Kansas, David W. Da-
vies, Deputy Attorney General, and Ralph James DeZago and Harry Ken-
nedy, Assistant Attorneys General, and by M. Jane Brady, Attorney Gen-

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513 Cite as: 541 U. S. 509 (2004)
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
Title II of the Americans with Disabilities Act of 1990
(ADA or Act), 104 Stat. 337, 42 U. S. C. §§ 12131–12165, pro-
vides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs or activi-
ties of a public entity, or be subjected to discrimination by
any such entity.” § 12132. The question presented in this
case is whether Title II exceeds Congress’ power under § 5
of the Fourteenth Amendment.
I
In August 1998, respondents George Lane and Beverly
Jones filed this action against the State of Tennessee and
a number of Tennessee counties, alleging past and ongoing
violations of Title II. Respondents, both of whom are para-
plegics who use wheelchairs for mobility, claimed that they
were denied access to, and the services of, the state court
system by reason of their disabilities. Lane alleged that he
was compelled to appear to answer a set of criminal charges
on the second floor of a county courthouse that had no eleva-
eral of Delaware; for the State of Minnesota et al. by Mike Hatch, Attor-
ney General of Minnesota, and Gary R. Cunningham and Kristyn Ander-
son, Assistant Attorneys General, and by the Attorneys General for their
respective States as follows: Richard Blumenthal of Connecticut, Lisa
Madigan of Illinois, Thomas F. Reilly of Massachusetts, Jeremiah W.
(Jay) Nixon of Missouri, Patricia A. Madrid of New Mexico, Eliot Spitzer
of New York, William H. Sorrell of Vermont, Christine O. Gregoire of
Washington, and Peggy A. Lautenschlager of Wisconsin; for the American
Bar Association by Dennis W. Archer and Paul R. Q. Wolfson; for the
Blanche Fischer Foundation by Sherril Nell Babcock; for the Lawyers’
Committee for Civil Rights Under Law et al. by Charles Lester, Jr., Debo-
rah M. Danzig, Barbara R. Arnwine, Thomas J. Henderson, Michael L.
Foreman, Kristin M. Dadey, Vincent A. Eng, Dennis C. Hayes, Elliot
Mincberg, and Michael Lieberman; for Paralyzed Veterans of America
et al. by Timothy K. Armstrong, Elizabeth B. McCallum, Ira A. Burnim,
and Jennifer Mathis; and for the Honorable Dick Thornburgh et al. by
Arlene B. Mayerson, Claudia Center, and Elizabeth Kristen.

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514 TENNESSEE v. LANE
Opinion of the Court
tor. At his first appearance, Lane crawled up two flights of
stairs to get to the courtroom. When Lane returned to the
courthouse for a hearing, he refused to crawl again or to be
carried by officers to the courtroom; he consequently was
arrested and jailed for failure to appear. Jones, a certified
court reporter, alleged that she has not been able to gain
access to a number of county courthouses, and, as a result,
has lost both work and an opportunity to participate in the
judicial process. Respondents sought damages and equita-
ble relief.
The State moved to dismiss the suit on the ground that it
was barred by the Eleventh Amendment. The District
Court denied the motion without opinion, and the State ap-
pealed.1 The United States intervened to defend Title II’s
abrogation of the States’ Eleventh Amendment immunity.
On April 28, 2000, after the appeal had been briefed and ar-
gued, the Court of Appeals for the Sixth Circuit entered an
order holding the case in abeyance pending our decision in
Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356
(2001).
In Garrett, we concluded that the Eleventh Amendment
bars private suits seeking money damages for state viola-
tions of Title I of the ADA. We left open, however, the
question whether the Eleventh Amendment permits suits for
money damages under Title II. Id., at 360, n. 1. Following
the Garrett decision, the Court of Appeals, sitting en banc,
heard argument in a Title II suit brought by a hearing-
impaired litigant who sought money damages for the State’s
failure to accommodate his disability in a child custody pro-
ceeding. Popovich v. Cuyahoga County Court, 276 F. 3d 808
(CA6 2002). A divided court permitted the suit to proceed
1 In Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy,
Inc., 506 U. S. 139 (1993), we held that “States and state entities that claim
to be ‘arms of the State’ may take advantage of the collateral order doc-
trine to appeal a district court order denying a claim of Eleventh Amend-
ment immunity.” Id., at 147.

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515 Cite as: 541 U. S. 509 (2004)
Opinion of the Court
despite the State’s assertion of Eleventh Amendment immu-
nity. The majority interpreted Garrett to bar private ADA
suits against States based on equal protection principles, but
not those that rely on due process principles. 276 F. 3d, at
811–816. The minority concluded that Congress had not
validly abrogated the States’ Eleventh Amendment immu-
nity for any Title II claims, id., at 821, while the concurring
opinion concluded that Title II validly abrogated state sover-
eign immunity with respect to both equal protection and due
process claims, id., at 818.
Following the en banc decision in Popovich, a panel of the
Court of Appeals entered an order affirming the District
Court’s denial of the State’s motion to dismiss in this case.
Judgt. order reported at 40 Fed. Appx. 911 (CA6 2002). The
order explained that respondents’ claims were not barred be-
cause they were based on due process principles. In re-
sponse to a petition for rehearing arguing that Popovich was
not controlling because the complaint did not allege due proc-
ess violations, the panel filed an amended opinion. It ex-
plained that the Due Process Clause protects the right of
access to the courts, and that the evidence before Congress
when it enacted Title II “established that physical barriers
in government buildings, including courthouses and in the
courtrooms themselves, have had the effect of denying dis-
abled people the opportunity to access vital services and to
exercise fundamental rights guaranteed by the Due Process
Clause.” 315 F. 3d 680, 682 (2003). Moreover, that “record
demonstrated that public entities’ failure to accommodate
the needs of qualified persons with disabilities may result
directly from unconstitutional animus and impermissible
stereotypes.” Id., at 683. The panel did not, however,
categorically reject the State’s submission. It instead noted
that the case presented difficult questions that “cannot be
clarified absent a factual record,” and remanded for further
proceedings. Ibid. We granted certiorari, 539 U. S. 941
(2003), and now affirm.

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516 TENNESSEE v. LANE
Opinion of the Court
II
The ADA was passed by large majorities in both Houses
of Congress after decades of deliberation and investigation
into the need for comprehensive legislation to address dis-
crimination against persons with disabilities. In the years
immediately preceding the ADA’s enactment, Congress held
13 hearings and created a special task force that gathered
evidence from every State in the Union. The conclusions
Congress drew from this evidence are set forth in the task
force and Committee Reports, described in lengthy legisla-
tive hearings, and summarized in the preamble to the stat-
ute.2 Central among these conclusions was Congress’ find-
ing that
“individuals with disabilities are a discrete and insular
minority who have been faced with restrictions and limi-
tations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political power-
lessness in our society, based on characteristics that are
beyond the control of such individuals and resulting
from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in,
and contribute to, society.” 42 U. S. C. § 12101(a)(7).
Invoking “the sweep of congressional authority, includ-
ing the power to enforce the fourteenth amendment and to
regulate commerce,” the ADA is designed “to provide a
clear and comprehensive national mandate for the elimina-
tion of discrimination against individuals with disabilities.”
§§ 12101(b)(1), (b)(4). It forbids discrimination against per-
sons with disabilities in three major areas of public life: em-
ployment, which is covered by Title I of the statute; public
2 See 42 U. S. C. § 12101; Task Force on the Rights and Empowerment
of Americans with Disabilities, From ADA to Empowerment 16 (Oct. 12,
1990); S. Rep. No. 101–116 (1989); H. R. Rep. No. 101–485 (1990); H. R.
Conf. Rep. No. 101–558 (1990); H. R. Conf. Rep. No. 101–596 (1990);
cf. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 389–390
(2001) (App. A to opinion of Breyer, J., dissenting) (listing congressional
hearings).

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517 Cite as: 541 U. S. 509 (2004)
Opinion of the Court
services, programs, and activities, which are the subject of
Title II; and public accommodations, which are covered by
Title III.
Title II, §§ 12131–12134, prohibits any public entity from
discriminating against “qualified” persons with disabilities in
the provision or operation of public services, programs, or
activities. The Act defines the term “public entity” to in-
clude state and local governments, as well as their agencies
and instrumentalities. § 12131(1). Persons with disabili-
ties are “qualified” if they, “with or without reasonable modi-
fications to rules, policies, or practices, the removal of archi-
tectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, mee[t] the essential
eligibility requirements for the receipt of services or the par-
ticipation in programs or activities provided by a public en-
tity.” § 12131(2). Title II’s enforcement provision incorpo-
rates by reference § 505 of the Rehabilitation Act of 1973, 92
Stat. 2982, as added, 29 U. S. C. § 794a, which authorizes pri-
vate citizens to bring suits for money damages. 42 U. S. C.
§ 12133.
III
The Eleventh Amendment renders the States immune
from “any suit in law or equity, commenced or prosecuted . . .
by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” Even though the Amendment “by its
terms . . . applies only to suits against a State by citizens
of another State,” our cases have repeatedly held that this
immunity also applies to unconsented suits brought by a
State’s own citizens. Garrett, 531 U. S., at 363; Kimel v.
Florida Bd. of Regents, 528 U. S. 62, 72–73 (2000). Our
cases have also held that Congress may abrogate the State’s
Eleventh Amendment immunity. To determine whether it
has done so in any given case, we “must resolve two predi-
cate questions: first, whether Congress unequivocally ex-
pressed its intent to abrogate that immunity; and second, if
it did, whether Congress acted pursuant to a valid grant of
constitutional authority.” Id., at 73.

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518 TENNESSEE v. LANE
Opinion of the Court
The first question is easily answered in this case. The Act
specifically provides: “A State shall not be immune under the
eleventh amendment to the Constitution of the United States
from an action in Federal or State court of competent juris-
diction for a violation of this chapter.” 42 U. S. C. § 12202.
As in Garrett, see 531 U. S., at 363–364, no party disputes
the adequacy of that expression of Congress’ intent to abro-
gate the States’ Eleventh Amendment immunity. The ques-
tion, then, is whether Congress had the power to give effect
to its intent.
In Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we held that
Congress can abrogate a State’s sovereign immunity when it
does so pursuant to a valid exercise of its power under § 5 of
the Fourteenth Amendment to enforce the substantive guar-
antees of that Amendment. Id., at 456. This enforcement
power, as we have often acknowledged, is a “broad power
indeed.” Mississippi Univ. for Women v. Hogan, 458 U. S.
718, 732 (1982), citing Ex parte Virginia, 100 U. S. 339, 346
(1880). 3 It includes “the authority both to remedy and to
deter violation of rights guaranteed [by the Fourteenth
Amendment] by prohibiting a somewhat broader swath of
conduct, including that which is not itself forbidden by the
Amendment’s text.” Kimel, 528 U. S., at 81. We have thus
repeatedly affirmed that “Congress may enact so-called pro-
phylactic legislation that proscribes facially constitutional
conduct, in order to prevent and deter unconstitutional con-
duct.” Nevada Dept. of Human Resources v. Hibbs, 538
U. S. 721, 727–728 (2003). See also City of Boerne v. Flores,
3 In Ex parte Virginia, we described the breadth of Congress’ § 5 power
as follows:
“Whatever legislation is appropriate, that is, adapted to carry out the
objects the amendments have in view, whatever tends to enforce submis-
sion to the prohibitions they contain, and to secure to all persons the en-
joyment of perfect equality of civil rights and the equal protection of the
laws against State denial or invasion, if not prohibited, is brought within
the domain of congressional power.” 100 U. S., at 345–346. See also City
of Boerne v. Flores, 521 U. S. 507, 517–518 (1997).

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Opinion of the Court
521 U. S. 507, 518 (1997).4 The most recent affirmation of
the breadth of Congress’ § 5 power came in Hibbs, in which
we considered whether a male state employee could recover
money damages against the State for its failure to comply
with the family-care leave provision of the Family and Medi-
cal Leave Act of 1993 (FMLA), 107 Stat. 6, 29 U. S. C. § 2601
et seq. We upheld the FMLA as a valid exercise of Con-
gress’ § 5 power to combat unconstitutional sex discrimina-
tion, even though there was no suggestion that the State’s
leave policy was adopted or applied with a discriminatory
purpose that would render it unconstitutional under the rule
of Personnel Administrator of Mass. v. Feeney, 442 U. S. 256
4 In Boerne, we observed:
“Legislation which deters or remedies constitutional violations can fall
within the sweep of Congress’ enforcement power even if in the process
it prohibits conduct which is not itself unconstitutional and intrudes into
‘legislative spheres of autonomy previously reserved to the States.’ Fitz-
patrick v. Bitzer, 427 U. S. 445, 455 (1976). For example, the Court upheld
a suspension of literacy tests and similar voting requirements under Con-
gress’ parallel power to enforce the provisions of the Fifteenth Amend-
ment, see U. S. Const., Amdt. 15, § 2, as a measure to combat racial dis-
crimination in voting, South Carolina v. Katzenbach, 383 U. S. 301, 308
(1966), despite the facial constitutionality of the tests under Lassiter v.
Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also
concluded that other measures protecting voting rights are within Con-
gress’ power to enforce the Fourteenth and Fifteenth Amendments, de-
spite the burdens those measures placed on the States. South Carolina
v. Katzenbach, supra (upholding several provisions of the Voting Rights
Act of 1965); Katzenbach v. Morgan, [384 U. S. 641 (1966)] (upholding ban
on literacy tests that prohibited certain people schooled in Puerto Rico
from voting); Oregon v. Mitchell, 400 U. S. 112 (1970) (upholding 5-year
nationwide ban on literacy tests and similar voting requirements for regis-
tering to vote); City of Rome v. United States, 446 U. S. 156, 161 (1980)
(upholding 7-year extension of the Voting Rights Act’s requirement that
certain jurisdictions preclear any change to a ‘ “standard, practice, or pro-
cedure with respect to voting” ’); see also James Everard’s Breweries v.
Day, 265 U. S. 545 (1924) (upholding ban on medical prescription of intox-
icating malt liquors as appropriate to enforce Eighteenth Amendment ban
on manufacture, sale, or transportation of intoxicating liquors for beverage
purposes).” Id., at 518.

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520 TENNESSEE v. LANE
Opinion of the Court
(1979). When Congress seeks to remedy or prevent uncon-
stitutional discrimination, § 5 authorizes it to enact pro-
phylactic legislation proscribing practices that are discrim-
inatory in effect, if not in intent, to carry out the basic
objectives of the Equal Protection Clause.
Congress’ § 5 power is not, however, unlimited. While
Congress must have a wide berth in devising appropriate
remedial and preventative measures for unconstitutional ac-
tions, those measures may not work a “substantive change
in the governing law.” Boerne, 521 U. S., at 519. In
Boerne, we recognized that the line between remedial legis-
lation and substantive redefinition is “not easy to discern,”
and that “Congress must have wide latitude in determining
where it lies.” Id., at 519–520. But we also confirmed that
“the distinction exists and must be observed,” and set forth
a test for so observing it: Section 5 legislation is valid if it
exhibits “a congruence and proportionality between the in-
jury to be prevented or remedied and the means adopted to
that end.” Id., at 520.
In Boerne, we held that Congress had exceeded its § 5 au-
thority when it enacted the Religious Freedom Restoration
Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. § 2000bb et
seq. We began by noting that Congress enacted RFRA “in
direct response” to our decision in Employment Div., Dept.
of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990),
for the stated purpose of “restor[ing]” a constitutional rule
that Smith had rejected. 521 U. S., at 512, 515 (internal
quotation marks omitted). Though the respondent at-
tempted to defend the statute as a reasonable means of en-
forcing the Free Exercise Clause as interpreted in Smith,
we concluded that RFRA was “so out of proportion” to that
objective that it could be understood only as an attempt to
work a “substantive change in constitutional protections.”
521 U. S., at 529, 532. Indeed, that was the very purpose
of the law.
This Court further defined the contours of Boerne’s “con-
gruence and proportionality” test in Florida Prepaid Post-

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Opinion of the Court
secondary Ed. Expense Bd. v. College Savings Bank, 527
U. S. 627 (1999). At issue in that case was the validity of
the Patent and Plant Variety Protection Remedy Clarifi-
cation Act (hereinafter Patent Remedy Act), a statutory
amendment Congress enacted in the wake of our decision in
Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985),
to clarify its intent to abrogate state sovereign immunity
from patent infringement suits. Florida Prepaid, 527 U. S.,
at 631–632. Noting the virtually complete absence of a his-
tory of unconstitutional patent infringement on the part of
the States, as well as the Act’s expansive coverage, the Court
concluded that the Patent Remedy Act’s apparent aim was
to serve the Article I concerns of “provid[ing] a uniform rem-
edy for patent infringement and . . . plac[ing] States on the
same footing as private parties under that regime,” and not
to enforce the guarantees of the Fourteenth Amendment.
Id., at 647–648. See also Kimel, 528 U. S. 62 (finding that
the Age Discrimination in Employment Act exceeded Con-
gress’ § 5 powers under Boerne); United States v. Morrison,
529 U. S. 598 (2000) (Violence Against Women Act).
Applying the Boerne test in Garrett, we concluded that
Title I of the ADA was not a valid exercise of Congress’ § 5
power to enforce the Fourteenth Amendment’s prohibition
on unconstitutional disability discrimination in public em-
ployment. As in Florida Prepaid, we concluded Congress’
exercise of its prophylactic § 5 power was unsupported by
a relevant history and pattern of constitutional violations.
531 U. S., at 368, 374. Although the dissent pointed out that
Congress had before it a great deal of evidence of discrimina-
tion by the States against persons with disabilities, id., at
379 (opinion of Breyer, J.), the Court’s opinion noted that
the “overwhelming majority” of that evidence related to “the
provision of public services and public accommodations,
which areas are addressed in Titles II and III,” rather than
Title I, id., at 371, n. 7. We also noted that neither the
ADA’s legislative findings nor its legislative history reflected
a concern that the States had been engaging in a pattern of

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522 TENNESSEE v. LANE
Opinion of the Court
unconstitutional employment discrimination. We empha-
sized that the House and Senate Committee Reports on the
ADA focused on “ ‘[d]iscrimination [in] . . . employment in
the private sector,’ ” and made no mention of discrimination
in public employment. Id., at 371–372 (quoting S. Rep.
No. 101–116, p. 6 (1989), and H. R. Rep. No. 101–485, pt. 2,
p. 28 (1990)) (emphasis in Garrett). Finally, we concluded
that Title I’s broad remedial scheme was insufficiently tar-
geted to remedy or prevent unconstitutional discrimination
in public employment. Taken together, the historical record
and the broad sweep of the statute suggested that Title I’s
true aim was not so much to enforce the Fourteenth Amend-
ment’s prohibitions against disability discrimination in public
employment as it was to “rewrite” this Court’s Fourteenth
Amendment jurisprudence. 531 U. S., at 372–374.
In view of the significant differences between Titles I and
II, however, Garrett left open the question whether Title II
is a valid exercise of Congress’ § 5 enforcement power. It is
to that question that we now turn.
IV
The first step of the Boerne inquiry requires us to identify
the constitutional right or rights that Congress sought to
enforce when it enacted Title II. Garrett, 531 U. S., at 365.
In Garrett we identified Title I’s purpose as enforcement of
the Fourteenth Amendment’s command that “all persons
similarly situated should be treated alike.” Cleburne v. Cle-
burne Living Center, Inc., 473 U. S. 432, 439 (1985). As we
observed, classifications based on disability violate that con-
stitutional command if they lack a rational relationship to a
legitimate governmental purpose. Garrett, 531 U. S., at 366
(citing Cleburne, 473 U. S., at 446).
Title II, like Title I, seeks to enforce this prohibition on
irrational disability discrimination. But it also seeks to en-
force a variety of other basic constitutional guarantees, in-
fringements of which are subject to more searching judicial

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Opinion of the Court
review. See, e. g., Dunn v. Blumstein, 405 U. S. 330, 336–
337 (1972); Shapiro v. Thompson, 394 U. S. 618, 634 (1969);
Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541
(1942). These rights include some, like the right of access
to the courts at issue in this case, that are protected by the
Due Process Clause of the Fourteenth Amendment. The
Due Process Clause and the Confrontation Clause of the
Sixth Amendment, as applied to the States via the Four-
teenth Amendment, both guarantee to a criminal defendant
such as respondent Lane the “right to be present at all
stages of the trial where his absence might frustrate the fair-
ness of the proceedings.” Faretta v. California, 422 U. S.
806, 819, n. 15 (1975). The Due Process Clause also requires
the States to afford certain civil litigants a “meaningful op-
portunity to be heard” by removing obstacles to their full
participation in judicial proceedings. Boddie v. Connecti-
cut, 401 U. S. 371, 379 (1971); M. L. B. v. S. L. J., 519 U. S.
102 (1996). We have held that the Sixth Amendment guar-
antees to criminal defendants the right to trial by a jury
composed of a fair cross section of the community, noting
that the exclusion of “identifiable segments playing major
roles in the community cannot be squared with the constitu-
tional concept of jury trial.” Taylor v. Louisiana, 419 U. S.
522, 530 (1975). And, finally, we have recognized that mem-
bers of the public have a right of access to criminal proceed-
ings secured by the First Amendment. Press-Enterprise
Co. v. Superior Court of Cal., County of Riverside, 478 U. S.
1, 8–15 (1986).
Whether Title II validly enforces these constitutional
rights is a question that “must be judged with reference to
the historical experience which it reflects.” South Carolina
v. Katzenbach, 383 U. S. 301, 308 (1966). See also Florida
Prepaid, 527 U. S., at 639–640; Boerne, 521 U. S., at 530.
While § 5 authorizes Congress to enact reasonably prophy-
lactic remedial legislation, the appropriateness of the remedy
depends on the gravity of the harm it seeks to prevent.

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524 TENNESSEE v. LANE
Opinion of the Court
“Difficult and intractable problems often require powerful
remedies,” Kimel, 528 U. S., at 88, but it is also true that
“[s]trong measures appropriate to address one harm may be
an unwarranted response to another, lesser one,” Boerne, 521
U. S., at 530.
It is not difficult to perceive the harm that Title II is de-
signed to address. Congress enacted Title II against a
backdrop of pervasive unequal treatment in the administra-
tion of state services and programs, including systematic
deprivations of fundamental rights. For example, “[a]s of
1979, most States . . . categorically disqualified ‘idiots’ from
voting, without regard to individual capacity.” 5 The major-
ity of these laws remain on the books,6 and have been the
subject of legal challenge as recently as 2001.7 Similarly, a
number of States have prohibited and continue to prohibit
persons with disabilities from engaging in activities such as
marrying 8 and serving as jurors.9 The historical experience
that Title II reflects is also documented in this Court’s cases,
which have identified unconstitutional treatment of disabled
5 Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 464, and n. 14
(1985) (Marshall, J., concurring in judgment in part and dissenting in part)
(citing Note, Mental Disability and the Right to Vote, 88 Yale L. J. 1644
(1979)).
6 See Schriner, Ochs, & Shields, Democratic Dilemmas: Notes on the
ADA and Voting Rights of People with Cognitive and Emotional Impair-
ments, 21 Berkeley J. Emp. & Lab. L. 437, 456–472, tbl. II (2000) (list-
ing state laws concerning the voting rights of persons with mental
disabilities).
7 See Doe v. Rowe, 156 F. Supp. 2d 35 (Me. 2001).
8 E. g., D. C. Code § 46–403 (West 2001) (declaring illegal and void the
marriage of “an idiot or of a person adjudged to be a lunatic”); Ky. Rev.
Stat. Ann. § 402.990(2) (West 1992 Cumulative Service) (criminalizing the
marriage of persons with mental disabilities); Tenn. Code Ann. § 36–3–109
(1996) (forbidding the issuance of a marriage license to “imbecile[s]”).
9 E. g., Mich. Comp. Laws Ann. § 729.204 (West 2002) (persons selected
for inclusion on jury list may not be “infirm or decrepit”); Tenn. Code Ann.
§ 22–2–304(c) (1994) (authorizing judges to excuse “mentally and physically
disabled” persons from jury service).

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Opinion of the Court
persons by state agencies in a variety of settings, including
unjustified commitment, e. g., Jackson v. Indiana, 406 U. S.
715 (1972); the abuse and neglect of persons committed to
state mental health hospitals, Youngberg v. Romeo, 457 U. S.
307 (1982); 10 and irrational discrimination in zoning deci-
sions, Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432 (1985). The decisions of other courts, too, document a
pattern of unequal treatment in the administration of a wide
range of public services, programs, and activities, including
the penal system,11 public education,12 and voting.13 Nota-
bly, these decisions also demonstrate a pattern of unconstitu-
tional treatment in the administration of justice.14
10 The undisputed findings of fact in Pennhurst State School and Hospi-
tal v. Halderman, 451 U. S. 1 (1981), provide another example of such
mistreatment. See id., at 7 (“Conditions at Pennhurst are not only dan-
gerous, with the residents often physically abused or drugged by staff
members, but also inadequate for the ‘habilitation’ of the retarded”).
11 E. g., LaFaut v. Smith, 834 F. 2d 389, 394 (CA4 1987) (paraplegic in-
mate unable to access toilet facilities); Schmidt v. Odell, 64 F. Supp. 2d
1014 (Kan. 1999) (double amputee forced to crawl around the floor of jail).
See also, e. g., Key v. Grayson, 179 F. 3d 996 (CA6 1999) (deaf inmate
denied access to sex offender therapy program allegedly required as pre-
condition for parole).
12 E. g., New York State Assn. for Retarded Children, Inc. v. Carey, 466
F. Supp. 487, 504 (EDNY 1979) (segregation of mentally retarded students
with hepatitis B); Mills v. Board of Ed. of District of Columbia, 348
F. Supp. 866 (DC 1972) (exclusion of mentally retarded students from pub-
lic school system). See also, e. g., Robertson v. Granite City Community
Unit School Dist. No. 9, 684 F. Supp. 1002 (SD Ill. 1988) (elementary-school
student with AIDS excluded from attending regular education classes or
participating in extracurricular activities); Thomas v. Atascadero Unified
School Dist., 662 F. Supp. 376 (CD Cal. 1986) (kindergarten student with
AIDS excluded from class).
13 E. g., Doe v. Rowe, 156 F. Supp. 2d 35 (Me. 2001) (disenfranchisement
of persons under guardianship by reason of mental illness). See also, e. g.,
New York ex rel. Spitzer v. County of Delaware, 82 F. Supp. 2d 12 (NDNY
2000) (mobility-impaired voters unable to access county polling places).
14 E. g., Ferrell v. Estelle, 568 F. 2d 1128, 1132–1133 (CA5) (deaf criminal
defendant denied interpretive services), opinion withdrawn as moot, 573
F. 2d 867 (1978); State v. Schaim, 65 Ohio St. 3d 51, 64, 600 N. E. 2d 661,

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526 TENNESSEE v. LANE
Opinion of the Court
This pattern of disability discrimination persisted despite
several federal and state legislative efforts to address it. In
the deliberations that led up to the enactment of the ADA,
Congress identified important shortcomings in existing laws
that rendered them “inadequate to address the pervasive
problems of discrimination that people with disabilities are
facing.” S. Rep. No. 101–116, at 18. See also H. R. Rep.
No. 101–485, pt. 2, at 47.15 It also uncovered further evi-
dence of those shortcomings, in the form of hundreds of ex-
amples of unequal treatment of persons with disabilities by
States and their political subdivisions. See Garrett, 531
U. S., at 379 (Breyer, J., dissenting). See also id., at 391
(App. C to opinion of Breyer, J., dissenting). As the
Court’s opinion in Garrett observed, the “overwhelming ma-
jority” of these examples concerned discrimination in the
administration of public programs and services. Id., at
371, n. 7; Government’s Lodging in Garrett, O. T. 2000,
No. 99–1240 (available in Clerk of Court’s case file).
672 (1992) (same); People v. Rivera, 125 Misc. 2d 516, 528, 480 N. Y. S. 2d
426, 434 (Sup. Ct. 1984) (same). See also, e. g., Layton v. Elder, 143 F. 3d
469, 470–472 (CA8 1998) (mobility-impaired litigant excluded from a
county quorum court session held on the second floor of an inaccessible
courthouse); Matthews v. Jefferson, 29 F. Supp. 2d 525, 533–534 (WD Ark.
1998) (wheelchair-bound litigant had to be carried to the second floor of an
inaccessible courthouse, from which he was unable to leave to use restroom
facilities or obtain a meal, and no arrangements were made to carry him
downstairs at the end of the day); Pomerantz v. County of Los Angeles,
674 F. 2d 1288, 1289 (CA9 1982) (blind persons categorically excluded from
jury service); Galloway v. Superior Court of District of Columbia, 816
F. Supp. 12 (DC 1993) (same); DeLong v. Brumbaugh, 703 F. Supp. 399,
405 (WD Pa. 1989) (deaf individual excluded from jury service); People v.
Green, 148 Misc. 2d 666, 669, 561 N. Y. S. 2d 130, 133 (Cty. Ct. 1990) (prose-
cutor exercised peremptory strike against prospective juror solely because
she was hearing impaired).
15 For a comprehensive discussion of the shortcomings of state disability
discrimination statutes, see Colker & Milani, The Post-Garrett World:
Insufficient State Protection against Disability Discrimination, 53 Ala.
L. Rev. 1075 (2002).

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Opinion of the Court
With respect to the particular services at issue in this case,
Congress learned that many individuals, in many States
across the country, were being excluded from courthouses
and court proceedings by reason of their disabilities. A re-
port before Congress showed that some 76% of public serv-
ices and programs housed in state-owned buildings were in-
accessible to and unusable by persons with disabilities, even
taking into account the possibility that the services and pro-
grams might be restructured or relocated to other parts of
the buildings. U. S. Commission on Civil Rights, Accommo-
dating the Spectrum of Individual Abilities 39 (1983). Con-
gress itself heard testimony from persons with disabilities
who described the physical inaccessibility of local court-
houses. Oversight Hearing on H. R. 4498 before the House
Subcommittee on Select Education of the Committee on Edu-
cation and Labor, 100th Cong., 2d Sess., 40–41, 48 (1988).
And its appointed task force heard numerous examples of
the exclusion of persons with disabilities from state judicial
services and programs, including exclusion of persons with
visual impairments and hearing impairments from jury serv-
ice, failure of state and local governments to provide inter-
pretive services for the hearing impaired, failure to permit
the testimony of adults with developmental disabilities in
abuse cases, and failure to make courtrooms accessible to
witnesses with physical disabilities. Government’s Lodging
in Garrett, O. T. 2000, No. 99–1240. See also Task Force on
the Rights and Empowerment of Americans with Disabili-
ties, From ADA to Empowerment (Oct. 12, 1990).16
16 The Chief Justice dismisses as “irrelevant” the portions of this evi-
dence that concern the conduct of nonstate governments. Post, at 542–
543 (dissenting opinion). This argument rests on the mistaken premise
that a valid exercise of Congress’ § 5 power must always be predicated
solely on evidence of constitutional violations by the States themselves.
To operate on that premise in this case would be particularly inappropriate
because this case concerns the provision of judicial services, an area in
which local governments are typically treated as “arm[s] of the State” for
Eleventh Amendment purposes, Mt. Healthy City Bd. of Ed. v. Doyle, 429

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528 TENNESSEE v. LANE
Opinion of the Court
Given the sheer volume of evidence demonstrating the na-
ture and extent of unconstitutional discrimination against
persons with disabilities in the provision of public services,
the dissent’s contention that the record is insufficient to jus-
tify Congress’ exercise of its prophylactic power is puzzling,
to say the least. Just last Term in Hibbs, we approved the
family-care leave provision of the FMLA as valid § 5 legisla-
tion based primarily on evidence of disparate provision of
parenting leave, little of which concerned unconstitutional
state conduct. 538 U. S., at 728–733.17 We explained that
U. S. 274, 280 (1977), and thus enjoy precisely the same immunity from
unconsented suit as the States. See, e. g., Callahan v. Philadelphia, 207
F. 3d 668, 670–674 (CA3 2000) (municipal court is an “arm of the State”
entitled to Eleventh Amendment immunity); Kelly v. Municipal Courts,
97 F. 3d 902, 907–908 (CA7 1996) (same); Franceschi v. Schwartz, 57 F. 3d
828, 831 (CA9 1995) (same). Cf. Garrett, 531 U. S., at 368–369.
In any event, our cases have recognized that evidence of constitutional
violations on the part of nonstate governmental actors is relevant to the
§ 5 inquiry. To be sure, evidence of constitutional violations by the States
themselves is particularly important when, as in Florida Prepaid Postsec-
ondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999),
Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), and Garrett, the sole
purpose of reliance on § 5 is to place the States on equal footing with
private actors with respect to their amenability to suit. But much of the
evidence in South Carolina v. Katzenbach, 383 U. S. 301, 312–315 (1966),
to which The Chief Justice favorably refers, post, at 548, involved the
conduct of county and city officials, rather than the States. Moreover,
what The Chief Justice calls an “extensive legislative record document-
ing States’ gender discrimination in employment leave policies” in Nevada
Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), post, at 548,
in fact contained little specific evidence of a pattern of unconstitutional
discrimination on the part of the States. Indeed, the evidence before the
Congress that enacted the FMLA related primarily to the practices of
private-sector employers and the Federal Government. See Hibbs, 538
U. S., at 730–735. See also id., at 745–750 (Kennedy, J., dissenting).
17 Specifically, we relied on (1) a Senate Report citation to a Bureau of
Labor Statistics survey revealing disparities in private-sector provision of
parenting leave to men and women; (2) submissions from two sources at a
hearing on the Parental and Medical Leave Act of 1986, a predecessor bill

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Opinion of the Court
because the FMLA was targeted at sex-based classifications,
which are subject to a heightened standard of judicial scru-
tiny, “it was easier for Congress to show a pattern of state
constitutional violations” than in Garrett or Kimel, both of
which concerned legislation that targeted classifications sub-
ject to rational-basis review. 538 U. S., at 735–737. Title
II is aimed at the enforcement of a variety of basic rights,
including the right of access to the courts at issue in this
case, that call for a standard of judicial review at least as
searching, and in some cases more searching, than the stand-
ard that applies to sex-based classifications. And in any
event, the record of constitutional violations in this case—
including judicial findings of unconstitutional state action,
and statistical, legislative, and anecdotal evidence of the
widespread exclusion of persons with disabilities from the
enjoyment of public services—far exceeds the record in
Hibbs.
The conclusion that Congress drew from this body of evi-
dence is set forth in the text of the ADA itself: “[D]iscrimina-
tion against individuals with disabilities persists in such crit-
ical areas as . . . education, transportation, communication,
recreation, institutionalization, health services, voting, and
access to public services.” 42 U. S. C. § 12101(a)(3) (empha-
sis added). This finding, together with the extensive record
of disability discrimination that underlies it, makes clear be-
yond peradventure that inadequate provision of public serv-
ices and access to public facilities was an appropriate subject
for prophylactic legislation.
to the FMLA, that public-sector parental leave polices “ ‘diffe[r] little’ ”
from private-sector policies; (3) evidence that 15 States provided women
up to one year of extended maternity leave, while only 4 States provided
for similarly extended paternity leave; and (4) a House Report’s quotation
of a study that found that failure to implement uniform standards for par-
enting leave would “ ‘leav[e] Federal employees open to discretionary and
possibly unequal treatment,’ ” H. R. Rep. No. 103–8, pt. 2, p. 11 (1993).
Hibbs, 538 U. S., at 728–733.

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530 TENNESSEE v. LANE
Opinion of the Court
V
The only question that remains is whether Title II is an
appropriate response to this history and pattern of unequal
treatment. At the outset, we must determine the scope of
that inquiry. Title II—unlike RFRA, the Patent Remedy
Act, and the other statutes we have reviewed for validity
under § 5—reaches a wide array of official conduct in an
effort to enforce an equally wide array of constitutional
guarantees. Petitioner urges us both to examine the broad
range of Title II’s applications all at once, and to treat
that breadth as a mark of the law’s invalidity. According to
petitioner, the fact that Title II applies not only to public
education and voting-booth access but also to seating at
state-owned hockey rinks indicates that Title II is not appro-
priately tailored to serve its objectives. But nothing in our
case law requires us to consider Title II, with its wide vari-
ety of applications, as an undifferentiated whole.18 What-
ever might be said about Title II’s other applications, the
question presented in this case is not whether Congress can
18 Contrary to The Chief Justice, post, at 551–552, neither Garrett nor
Florida Prepaid lends support to the proposition that the Boerne test
requires courts in all cases to “measur[e] the full breadth of the statute or
relevant provision that Congress enacted against the scope of the constitu-
tional right it purported to enforce.” In fact, the decision in Garrett,
which severed Title I of the ADA from Title II for purposes of the § 5
inquiry, demonstrates that courts need not examine “the full breadth of
the statute” all at once. Moreover, Garrett and Florida Prepaid, like all
of our other recent § 5 cases, concerned legislation that narrowly targeted
the enforcement of a single constitutional right; for that reason, neither
speaks to the issue presented in this case.
Nor is The Chief Justice’s approach compelled by the nature of the
Boerne inquiry. The answer to the question Boerne asks—whether a
piece of legislation attempts substantively to redefine a constitutional
guarantee—logically focuses on the manner in which the legislation oper-
ates to enforce that particular guarantee. It is unclear what, if anything,
examining Title II’s application to hockey rinks or voting booths can tell
us about whether Title II substantively redefines the right of access to
the courts.

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531 Cite as: 541 U. S. 509 (2004)
Opinion of the Court
validly subject the States to private suits for money damages
for failing to provide reasonable access to hockey rinks,
or even to voting booths, but whether Congress had the
power under § 5 to enforce the constitutional right of access
to the courts. Because we find that Title II unquestion-
ably is valid § 5 legislation as it applies to the class of cases
implicating the accessibility of judicial services, we need go
no further. See United States v. Raines, 362 U. S. 17, 26
(1960).19
Congress’ chosen remedy for the pattern of exclusion and
discrimination described above, Title II’s requirement of pro-
gram accessibility, is congruent and proportional to its object
of enforcing the right of access to the courts. The unequal
treatment of disabled persons in the administration of judi-
cial services has a long history, and has persisted despite
several legislative efforts to remedy the problem of disability
discrimination. Faced with considerable evidence of the
shortcomings of previous legislative responses, Congress
was justified in concluding that this “difficult and intractable
proble[m]” warranted “added prophylactic measures in re-
sponse.” Hibbs, 538 U. S., at 737 (internal quotation marks
omitted).
The remedy Congress chose is nevertheless a limited one.
Recognizing that failure to accommodate persons with disa-
bilities will often have the same practical effect as outright
exclusion, Congress required the States to take reasonable
measures to remove architectural and other barriers to ac-
cessibility. 42 U. S. C. § 12131(2). But Title II does not re-
quire States to employ any and all means to make judicial
19 In Raines, a State subject to suit under the Civil Rights Act of 1957
contended that the law exceeded Congress’ power to enforce the Fifteenth
Amendment because it prohibited “any person,” and not just state actors,
from interfering with voting rights. We rejected that argument, conclud-
ing that “if the complaint here called for an application of the statute
clearly constitutional under the Fifteenth Amendment, that should have
been an end to the question of constitutionality.” 362 U. S., at 24–25.

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532 TENNESSEE v. LANE
Opinion of the Court
services accessible to persons with disabilities, and it does
not require States to compromise their essential eligibility
criteria for public programs. It requires only “reasonable
modifications” that would not fundamentally alter the nature
of the service provided, and only when the individual seeking
modification is otherwise eligible for the service. Ibid. As
Title II’s implementing regulations make clear, the reason-
able modification requirement can be satisfied in a number
of ways. In the case of facilities built or altered after 1992,
the regulations require compliance with specific architec-
tural accessibility standards. 28 CFR § 35.151 (2003). But
in the case of older facilities, for which structural change is
likely to be more difficult, a public entity may comply with
Title II by adopting a variety of less costly measures, includ-
ing relocating services to alternative, accessible sites and
assigning aides to assist persons with disabilities in access-
ing services. § 35.150(b)(1). Only if these measures are
ineffective in achieving accessibility is the public entity
required to make reasonable structural changes. Ibid.
And in no event is the entity required to undertake meas-
ures that would impose an undue financial or administra-
tive burden, threaten historic preservation interests, or ef-
fect a fundamental alteration in the nature of the service.
§§ 35.150(a)(2), (a)(3).
This duty to accommodate is perfectly consistent with the
well-established due process principle that, “within the lim-
its of practicability, a State must afford to all individuals a
meaningful opportunity to be heard” in its courts. Boddie,
401 U. S., at 379 (internal quotation marks and citation omit-
ted).20 Our cases have recognized a number of affirmative
obligations that flow from this principle: the duty to waive
20 Because this case implicates the right of access to the courts, we need
not consider whether Title II’s duty to accommodate exceeds what the
Constitution requires in the class of cases that implicate only Cleburne’s
prohibition on irrational discrimination. See Garrett, 531 U. S., at 372.

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533 Cite as: 541 U. S. 509 (2004)
Opinion of the Court
filing fees in certain family-law and criminal cases,21 the duty
to provide transcripts to criminal defendants seeking review
of their convictions,22 and the duty to provide counsel to cer-
tain criminal defendants.23 Each of these cases makes clear
that ordinary considerations of cost and convenience alone
cannot justify a State’s failure to provide individuals with a
meaningful right of access to the courts. Judged against
this backdrop, Title II’s affirmative obligation to accommo-
date persons with disabilities in the administration of justice
cannot be said to be “so out of proportion to a supposed re-
medial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional be-
havior.” Boerne, 521 U. S., at 532; Kimel, 528 U. S., at 86.24
It is, rather, a reasonable prophylactic measure, reasonably
targeted to a legitimate end.
For these reasons, we conclude that Title II, as it applies
to the class of cases implicating the fundamental right of ac-
21 Boddie v. Connecticut, 401 U. S. 371 (1971) (divorce filing fee);
M. L. B. v. S. L. J., 519 U. S. 102 (1996) (record fee in parental rights
termination action); Smith v. Bennett, 365 U. S. 708 (1961) (filing fee for
habeas petitions); Burns v. Ohio, 360 U. S. 252 (1959) (filing fee for direct
appeal in criminal case).
22 Griffin v. Illinois, 351 U. S. 12 (1956).
23 Gideon v. Wainwright, 372 U. S. 335 (1963) (trial counsel for persons
charged with felony offenses); Douglas v. California, 372 U. S. 353 (1963)
(counsel for direct appeals as of right).
24 The Chief Justice contends that Title II cannot be understood as
remedial legislation because it “subjects a State to liability for failing to
make a vast array of special accommodations, without regard for whether
the failure to accommodate results in a constitutional wrong.” Post, at
553 (emphasis in original). But as we have often acknowledged, Congress
“is not confined to the enactment of legislation that merely parrots the
precise wording of the Fourteenth Amendment,” and may prohibit
“a somewhat broader swath of conduct, including that which is not itself
forbidden by the Amendment’s text.” Kimel, 528 U. S., at 81. Cf. Hibbs,
538 U. S. 721 (upholding the FMLA as valid remedial legislation without
regard to whether failure to provide the statutorily mandated 12 weeks’
leave results in a violation of the Fourteenth Amendment).

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534 TENNESSEE v. LANE
Souter, J., concurring
cess to the courts, constitutes a valid exercise of Congress’
§ 5 authority to enforce the guarantees of the Fourteenth
Amendment. The judgment of the Court of Appeals is
therefore affirmed.
It is so ordered.
Justice Souter, with whom Justice Ginsburg joins,
concurring.
I join the Court’s opinion subject to the same caveats
about the Court’s recent cases on the Eleventh Amendment
and § 5 of the Fourteenth that I noted in Nevada Dept. of
Human Resources v. Hibbs, 538 U. S. 721, 740 (2003) (Sou-
ter, J., concurring).
Although I concur in the Court’s approach applying the
congruence-and-proportionality criteria to Title II of the
Americans with Disabilities Act of 1990 as a guarantee of
access to courts and related rights, I note that if the Court
engaged in a more expansive enquiry as The Chief Justice
suggests, post, at 551 (dissenting opinion), the evidence to be
considered would underscore the appropriateness of action
under § 5 to address the situation of disabled individuals be-
fore the courts, for that evidence would show that the ju-
diciary itself has endorsed the basis for some of the very
discrimination subject to congressional remedy under § 5.
Buck v. Bell, 274 U. S. 200 (1927), was not grudging in sus-
taining the constitutionality of the once-pervasive practice of
involuntarily sterilizing those with mental disabilities. See
id., at 207 (“It is better for all the world, if instead of waiting
to execute degenerate offspring for crime, or to let them
starve for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. . . . Three gen-
erations of imbeciles are enough”). Laws compelling steril-
ization were often accompanied by others indiscriminately
requiring institutionalization, and prohibiting certain indi-
viduals with disabilities from marrying, from voting, from
attending public schools, and even from appearing in public.

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535 Cite as: 541 U. S. 509 (2004)
Ginsburg, J., concurring
One administrative action along these lines was judicially
sustained in part as a justified precaution against the very
sight of a child with cerebral palsy, lest he “produc[e] a
depressing and nauseating effect” upon others. State ex
rel. Beattie v. Board of Ed. of Antigo, 169 Wis. 231, 232,
172 N. W. 153 (1919) (approving his exclusion from public
school).1
Many of these laws were enacted to implement the quon-
dam science of eugenics, which peaked in the 1920’s, yet the
statutes and their judicial vindications sat on the books long
after eugenics lapsed into discredit.2 See U. S. Commission
on Civil Rights, Accommodating the Spectrum of Individual
Abilities 19–20 (1983). Quite apart from the fateful inspira-
tion behind them, one pervasive fault of these provisions was
their failure to reflect the “amount of flexibility and freedom”
required to deal with “the wide variation in the abilities and
needs” of people with disabilities. Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 445 (1985). Instead, like
other invidious discrimination, they classified people without
regard to individual capacities, and by that lack of regard did
great harm. In sustaining the application of Title II today,
the Court takes a welcome step away from the judiciary’s
prior endorsement of blunt instruments imposing legal
handicaps.
Justice Ginsburg, with whom Justice Souter and
Justice Breyer join, concurring.
For the reasons stated by the Court, and mindful of Con-
gress’ objective in enacting the Americans with Disabilities
1 See generally Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432,
463–464 (1985) (Marshall, J., concurring in judgment in part and dissenting
in part); Burgdorf & Burgdorf, A History of Unequal Treatment: The
Qualifications of Handicapped Persons As A “Suspect Class” Under the
Equal Protection Clause, 15 Santa Clara Law. 855 (1975); Brief for United
States 17–19.
2 As the majority opinion shows, some of them persist to this day, ante,
at 524–525, to say nothing of their lingering effects on society.

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536 TENNESSEE v. LANE
Ginsburg, J., concurring
Act—the elimination or reduction of physical and social
structures that impede people with some present, past, or
perceived impairments from contributing, according to their
talents, to our Nation’s social, economic, and civic life—I join
the Court’s opinion.
The Americans with Disabilities Act of 1990 (ADA or Act),
42 U. S. C. §§ 12101–12213, is a measure expected to advance
equal-citizenship stature for persons with disabilities. See
Bagenstos, Subordination, Stigma, and “Disability,” 86 Va.
L. Rev. 397, 471 (2000) (ADA aims both to “guarante[e] a
baseline of equal citizenship by protecting against stigma
and systematic exclusion from public and private opportuni-
ties, and [to] protec[t] society against the loss of valuable tal-
ents”). As the Court’s opinion relates, see ante, at 516–517,
the Act comprises three parts, prohibiting discrimination in
employment (Title I), public services, programs, and activi-
ties (Title II), and public accommodations (Title III). This
case concerns Title II, which controls the conduct of admin-
istrators of public undertakings.
Including individuals with disabilities among people who
count in composing “We the People,” Congress understood in
shaping the ADA, would sometimes require not blindfolded
equality, but responsiveness to difference; not indifference,
but accommodation. Central to the Act’s primary objective,
Congress extended the statute’s range to reach all govern-
ment activities, § 12132 (Title II), and required “reasonable
modifications to [public actors’] rules, policies, or practices,”
§§ 12131(2)–12132 (Title II). See also § 12112(b)(5) (defining
discrimination to include the failure to provide “reasonable
accommodations”) (Title I); § 12182(b)(2)(A)(ii) (requiring
“reasonable modifications in [public accommodations’] poli-
cies, practices, or procedures”) (Title III); Bagenstos, supra,
at 435 (ADA supporters sought “to eliminate the practices
that combine with physical and mental conditions to create
what we call ‘disability.’ The society-wide universal access
rules serve this function on the macro level, and the require-

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537 Cite as: 541 U. S. 509 (2004)
Ginsburg, J., concurring
ments of individualized accommodation and modification fill
in the gaps on the micro level.” (footnote omitted)).
In Olmstead v. L. C., 527 U. S. 581 (1999), this Court re-
sponded with fidelity to the ADA’s accommodation theme
when it held a State accountable for failing to provide com-
munity residential placements for people with disabilities.
The State argued in Olmstead that it had acted impartially,
for it provided no community placements for individuals
without disabilities. Id., at 598. Congress, the Court ob-
served, advanced in the ADA “a more comprehensive view
of the concept of discrimination,” ibid., one that embraced
failures to provide “reasonable accommodations,” id., at 601.
The Court today is similarly faithful to the Act’s demand
for reasonable accommodation to secure access and avoid
exclusion.
Legislation calling upon all government actors to respect
the dignity of individuals with disabilities is entirely compat-
ible with our Constitution’s commitment to federalism, prop-
erly conceived. It seems to me not conducive to a harmoni-
ous federal system to require Congress, before it exercises
authority under § 5 of the Fourteenth Amendment, essen-
tially to indict each State for disregarding the equal-
citizenship stature of persons with disabilities. But see
post, at 564 (Scalia, J., dissenting) (“Congress may impose
prophylactic § 5 legislation only upon those particular States
in which there has been an identified history of relevant con-
stitutional violations.”); Nevada Dept. of Human Resources
v. Hibbs, 538 U. S. 721, 743 (2003) (Scalia, J., dissenting) (to
be controlled by § 5 legislation, State “can demand that it be
shown to have been acting in violation of the Fourteenth
Amendment” (emphasis in original)). Members of Congress
are understandably reluctant to condemn their own States
as constitutional violators, complicit in maintaining the
isolated and unequal status of persons with disabilities.
I would not disarm a National Legislature for resisting an

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538 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
adversarial approach to lawmaking better suited to the
courtroom.
As the Court’s opinion documents, see ante, at 524–529, Con-
gress considered a body of evidence showing that in diverse
parts of our Nation, and at various levels of government,
persons with disabilities encounter access barriers to public
facilities and services. That record, the Court rightly holds,
at least as it bears on access to courts, sufficed to warrant
the barrier-lowering, dignity-respecting national solution the
People’s representatives in Congress elected to order.
Chief Justice Rehnquist, with whom Justice Ken-
nedy and Justice Thomas join, dissenting.
In Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S.
356 (2001), we held that Congress did not validly abrogate
States’ Eleventh Amendment immunity when it enacted
Title I of the Americans with Disabilities Act of 1990 (ADA
or Act), 42 U. S. C. §§ 12111–12117. Today, the Court con-
cludes that Title II of that Act, §§ 12131–12165, does validly
abrogate that immunity, at least insofar “as it applies to the
class of cases implicating the fundamental right of access to
the courts.” Ante, at 533–534. Because today’s decision is
irreconcilable with Garrett and the well-established princi-
ples it embodies, I dissent.
The Eleventh Amendment bars private lawsuits in federal
court against an unconsenting State. E. g., Nevada Dept. of
Human Resources v. Hibbs, 538 U. S. 721, 726 (2003); Gar-
rett, supra, at 363; Kimel v. Florida Bd. of Regents, 528 U. S.
62, 73 (2000). Congress may overcome States’ sovereign im-
munity and authorize such suits only if it unmistakably ex-
presses its intent to do so, and only if it “acts pursuant to a
valid exercise of its power under § 5 of the Fourteenth
Amendment.” Hibbs, supra, at 726. While the Court cor-
rectly holds that Congress satisfied the first prerequisite,
ante, at 518, I disagree with its conclusion that Title II is
valid § 5 enforcement legislation.

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539 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
Section 5 of the Fourteenth Amendment grants Congress
the authority “to enforce, by appropriate legislation,” the
familiar substantive guarantees contained in § 1 of that
Amendment. U. S. Const., Amdt. 14, § 1 (“No State shall . . .
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction
the equal protection of the laws”). Congress’ power to enact
“ ‘appropriate’ ” enforcement legislation is not limited to
“mere legislative repetition” of this Court’s Fourteenth
Amendment jurisprudence. Garrett, supra, at 365. Con-
gress may “remedy” and “deter” state violations of consti-
tutional rights by “prohibiting a somewhat broader swath
of conduct, including that which is not itself forbidden by
the Amendment’s text.” Hibbs, 538 U. S., at 727 (internal
quotation marks omitted). Such “prophylactic” legislation,
however, “must be an appropriate remedy for identified con-
stitutional violations, not ‘an attempt to substantively rede-
fine the States’ legal obligations.’ ” Id., at 727–728 (quoting
Kimel, supra, at 88); City of Boerne v. Flores, 521 U. S. 507,
525 (1997) (enforcement power is “corrective or preventive,
not definitional”). To ensure that Congress does not usurp
this Court’s responsibility to define the meaning of the Four-
teenth Amendment, valid § 5 legislation must exhibit “ ‘con-
gruence and proportionality between the injury to be pre-
vented or remedied and the means adopted to that end.’ ”
Hibbs, supra, at 728 (quoting City of Boerne, supra, at 520).
While the Court today pays lipservice to the “ ‘congruence
and proportionality’ ” test, see ante, at 520, it applies it in a
manner inconsistent with our recent precedents.
In Garrett, we conducted the three-step inquiry first enun-
ciated in City of Boerne to determine whether Title I of the
ADA satisfied the congruence-and-proportionality test. A
faithful application of that test to Title II reveals that it too
“ ‘substantively redefine[s],’ ” rather than permissibly en-
forces, the rights protected by the Fourteenth Amendment.
Hibbs, supra, at 728.

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540 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
The first step is to “identify with some precision the scope
of the constitutional right at issue.” Garrett, supra, at 365.
This task was easy in Garrett, Hibbs, Kimel, and City of
Boerne because the statutes in those cases sought to enforce
only one constitutional right. In Garrett, for example, the
statute addressed the equal protection right of disabled per-
sons to be free from unconstitutional employment discrimi-
nation. 531 U. S., at 365. See also Hibbs, supra, at 728
(“The [Family and Medical Leave Act of 1993 (FMLA)] aims
to protect the right to be free from gender-based discrimina-
tion in the workplace”); Kimel, supra, at 83 (right to be free
from unconstitutional age discrimination in employment);
City of Boerne, supra, at 529 (right of free exercise of reli-
gion). The scope of that right, we explained, is quite lim-
ited; indeed, the Equal Protection Clause permits a State to
classify on the basis of disability so long as it has a rational
basis for doing so. Garrett, supra, at 366–368 (discussing
Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432
(1985)); see also ante, at 522.
In this case, the task of identifying the scope of the rele-
vant constitutional protection is more difficult because Title
II purports to enforce a panoply of constitutional rights of
disabled persons: not only the equal protection right against
irrational discrimination, but also certain rights protected
by the Due Process Clause. Ante, at 522–523. However,
because the Court ultimately upholds Title II “as it applies
to the class of cases implicating the fundamental right of ac-
cess to the courts,” ante, at 533–534, the proper inquiry fo-
cuses on the scope of those due process rights. The Court
cites four access-to-the-courts rights that Title II purport-
edly enforces: (1) the right of the criminal defendant to be
present at all critical stages of the trial, Faretta v. Califor-
nia, 422 U. S. 806, 819 (1975); (2) the right of litigants to have
a “meaningful opportunity to be heard” in judicial proceed-
ings, Boddie v. Connecticut, 401 U. S. 371, 379 (1971); (3) the
right of the criminal defendant to trial by a jury composed

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541 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
of a fair cross section of the community, Taylor v. Louisiana,
419 U. S. 522, 530 (1975); and (4) the public right of access
to criminal proceedings, Press-Enterprise Co. v. Superior
Court of Cal., County of Riverside, 478 U. S. 1, 8–15 (1986).
Ante, at 522–523.
Having traced the “metes and bounds” of the constitu-
tional rights at issue, the next step in the congruence-and-
proportionality inquiry requires us to examine whether Con-
gress “identified a history and pattern” of violations of these
constitutional rights by the States with respect to the dis-
abled. Garrett, 531 U. S., at 368. This step is crucial to de-
termining whether Title II is a legitimate attempt to remedy
or prevent actual constitutional violations by the States or
an illegitimate attempt to rewrite the constitutional provi-
sions it purports to enforce. Indeed, “Congress’ § 5 author-
ity is appropriately exercised only in response to state trans-
gressions. ” Ibid. (emphasis added). But the majority
identifies nothing in the legislative record that shows Con-
gress was responding to widespread violations of the due
process rights of disabled persons.
Rather than limiting its discussion of constitutional viola-
tions to the due process rights on which it ultimately relies,
the majority sets out on a wide-ranging account of societal
discrimination against the disabled. Ante, at 524– 526.
This digression recounts historical discrimination against the
disabled through institutionalization laws, restrictions on
marriage, voting, and public education, conditions in mental
hospitals, and various other forms of unequal treatment in
the administration of public programs and services. Some
of this evidence would be relevant if the Court were consid-
ering the constitutionality of the statute as a whole; but the
Court rejects that approach in favor of a narrower “as-
applied” inquiry.1 We discounted much the same type of
outdated, generalized evidence in Garrett as unsupportive of
1 For further discussion of the propriety of this approach, see infra, at
551–552.

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542 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
Title I’s ban on employment discrimination. 531 U. S., at
368–372; see also City of Boerne, 521 U. S., at 530 (noting
that the “legislative record lacks . . . modern instances of . . .
religious bigotry”). The evidence here is likewise irrelevant
to Title II’s purported enforcement of due process access-to-
the-courts rights.
Even if it were proper to consider this broader category
of evidence, much of it does not concern unconstitutional
action by the States. The bulk of the Court’s evidence con-
cerns discrimination by nonstate governments, rather than
the States themselves.2 We have repeatedly held that such
evidence is irrelevant to the inquiry whether Congress has
validly abrogated Eleventh Amendment immunity, a privi-
lege enjoyed only by the sovereign States. Garrett, supra,
at 368–369; Florida Prepaid Postsecondary Ed. Expense
Bd. v. College Savings Bank, 527 U. S. 627, 640 (1999); Kimel,
528 U. S., at 89. Moreover, the majority today cites the
same congressional task force evidence we rejected in Gar-
rett. Ante, at 526 (citing Garrett, supra, at 379 (Breyer, J.,
dissenting), and 531 U. S., at 391–424 (App. C to opinion of
Breyer, J., dissenting) (chronicling instances of “unequal
treatment” in the “administration of public programs”)). As
in Garrett, this “unexamined, anecdotal” evidence does not
suffice. 531 U. S., at 370. Most of the brief anecdotes do
not involve States at all, and those that do are not sufficiently
detailed to determine whether the instances of “unequal
treatment” were irrational, and thus unconstitutional under
our decision in Cleburne. Gar rett, supra, at 370– 371.
2 E. g., ante, at 525 (citing Cleburne v. Cleburne Living Center, Inc., 473
U. S. 432 (1985) (irrational discrimination by city zoning board)); ante, at
525, n. 13 (citing New York ex rel. Spitzer v. County of Delaware, 82
F. Supp. 2d 12 (NDNY 2000) (ADA lawsuit brought by State against a
county)); ante, at 525, n. 12 (citing four cases concerning local school
boards’ unconstitutional actions); ante, at 525, n. 11 (citing one case involv-
ing conditions in federal prison and another involving a county jail inmate);
ante, at 526 (referring to “hundreds of examples of unequal treatment . . .
by States and their political subdivisions” (emphasis added)).

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543 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
Therefore, even outside the “access to the courts” context,
the Court identifies few, if any, constitutional violations per-
petrated by the States against disabled persons.3
With respect to the due process “access to the courts”
rights on which the Court ultimately relies, Congress’ failure
to identify a pattern of actual constitutional violations by the
States is even more striking. Indeed, there is nothing in
the legislative record or statutory findings to indicate that
disabled persons were systematically denied the right to be
present at criminal trials, denied the meaningful opportunity
to be heard in civil cases, unconstitutionally excluded from
jury service, or denied the right to attend criminal trials.4
The Court’s attempt to disguise the lack of congressional
documentation with a few citations to judicial decisions can-
not retroactively provide support for Title II, and in any
event, fails on its own terms. See, e. g., Garrett, 531 U. S.,
at 368 (“[W]e examine whether Congress identified a history
and pattern” of constitutional violations); ibid. (“The legisla-
tive record . . . fails to show that Congress did in fact identify
3 The majority obscures this fact by repeatedly referring to congres-
sional findings of “discrimination” and “unequal treatment.” Of course,
generic findings of discrimination and unequal treatment vel non are insuf-
ficient to show a pattern of constitutional violations where rational-basis
scrutiny applies. Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S.
356, 370 (2001).
4 Certainly, respondents Lane and Jones were not denied these constitu-
tional rights. The majority admits that Lane was able to attend the ini-
tial hearing of his criminal trial. Ante, at 514. Lane was arrested for
failing to appear at his second hearing only after he refused assistance
from officers dispatched by the court to help him to the courtroom. Ibid.
The court conducted a preliminary hearing in the first-floor library to ac-
commodate Lane’s disability, App. to Pet. for Cert. 16, and later offered
to move all further proceedings in the case to a handicapped-accessible
courthouse in a nearby town. In light of these facts, it can hardly be said
that the State violated Lane’s right to be present at his trial; indeed, it
made affirmative attempts to secure that right. Respondent Jones, a dis-
abled court reporter, does not seriously contend that she suffered a consti-
tutional injury.

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544 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
a pattern” of constitutional violations (emphases added)).
Indeed, because this type of constitutional violation occurs
in connection with litigation, it is particularly telling that the
majority is able to identify only two reported cases finding
that a disabled person’s federal constitutional rights were
violated.5 See ante, at 525–526, n. 14 (citing Ferrell v. Es-
telle, 568 F. 2d 1128, 1132–1133 (CA5), opinion withdrawn as
moot, 573 F. 2d 867 (1978); People v. Rivera, 125 Misc. 2d
516, 528, 480 N. Y. S. 2d 426, 434 (Sup. Ct. 1984)).6
Lacking any real evidence that Congress was responding
to actual due process violations, the majority relies primarily
on three items to justify its decision: (1) a 1983 U. S. Civil
Rights Commission Report showing that 76% of “public serv-
ices and programs housed in state-owned buildings were
inaccessible” to persons with disabilities, ante, at 527;
(2) testimony before a House subcommittee regarding the
“physical inaccessibility” of local courthouses, ibid.; and
(3) evidence submitted to Congress’ designated ADA task
5 As two Justices noted in Garrett, if the States were violating the due
process rights of disabled persons, “one would have expected to find in
decisions of the courts . . . extensive litigation and discussion of the consti-
tutional violations.” 531 U. S., at 376 (Kennedy, J., joined by O’Connor,
J., concurring).
6 The balance of the Court’s citations refer to cases arising after enact-
ment of the ADA or do not contain findings of federal constitutional viola-
tions. Ante, at 525–526, n. 14 (citing Layton v. Elder, 143 F. 3d 469 (CA8
1998) (post-ADA case finding ADA violations only); Matthews v. Jefferson,
29 F. Supp. 2d 525 (WD Ark. 1998) (same); Galloway v. Superior Court,
816 F. Supp. 12 (DC 1993) (same); State v. Schaim, 65 Ohio St. 3d 51, 600
N. E. 2d 661 (1992) (remanded for hearing on constitutional issue); People
v. Green, 148 Misc. 2d 666, 561 N. Y. S. 2d 130 (Cty. Ct. 1990) (finding
violation of state constitution only); DeLong v. Brumbaugh, 703 F. Supp.
399 (WD Pa. 1989) (statute upheld against facial constitutional challenge;
Rehabilitation Act of 1973 violations only); Pomerantz v. Los Angeles
County, 674 F. 2d 1288 (CA9 1982) (Rehabilitation Act of 1973 claim; chal-
lenged jury-service statute later amended)). Accordingly, they offer no
support whatsoever for the notion that Title II is a valid response to docu-
mented constitutional violations.

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545 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
force that purportedly contains “numerous examples of the
exclusion of persons with disabilities from state judicial serv-
ices and programs.” Ibid.
On closer examination, however, the Civil Rights Commis-
sion’s finding consists of a single conclusory sentence in its
report, and it is far from clear that its finding even includes
courthouses. The House subcommittee report, for its part,
contains the testimony of two witnesses, neither of whom
reported being denied the right to be present at constitution-
ally protected court proceedings.7 Indeed, the witnesses’
testimony, like the U. S. Commission on Civil Rights Report,
concerns only physical barriers to access, and does not ad-
dress whether States either provided means to overcome
those barriers or alternative locations for proceedings
involving disabled persons. Cf. n. 4, supra (describing alter-
native means of access offered to respondent Lane).
Based on the majority’s description, ante, at 527, the re-
port of the ADA Task Force on the Rights and Empower-
ment of Americans with Disabilities sounds promising. But
the report itself says nothing about any disabled person
being denied access to court. The Court thus apparently
relies solely on a general citation to the Government’s Lodg-
ing in Garrett, O. T. 2000, No. 99–1240, which, amidst thou-
sands of pages, contains only a few anecdotal handwritten
reports of physically inaccessible courthouses, again with
no mention of whether States provided alternative means
of access. This evidence, moreover, was submitted not to
Congress, but only to the task force, which itself made no
7 Oversight Hearing on H. R. 4498 before the House Subcommittee on
Select Education of the Committee on Education and Labor, 100th Cong.,
2d Sess., 40–41 (1988) (statement of Emeka Nwojke) (explaining that he
encountered difficulties appearing in court due to physical characteristics
of the courthouse and courtroom and the rudeness of court employees);
id., at 48 (statement of Ellen Telker) (blind attorney “know[s] of at least
one courthouse in New Haven where the elevators do not have tactile
markings”).

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546 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
findings regarding disabled persons’ access to judicial pro-
ceedings. Cf. Garrett, 531 U. S., at 370–371 (rejecting anec-
dotal task force evidence for similar reasons). As we noted
in Garrett, “had Congress truly understood this [task force]
information as reflecting a pattern of unconstitutional behav-
ior by the States, one would expect some mention of that
conclusion in the Act’s legislative findings.” Id., at 371.
Yet neither the legislative findings, nor even the Committee
Reports, contain a single mention of the seemingly vital
topic of access to the courts.8 Cf. ibid.; Florida Prepaid,
527 U. S., at 641 (observing that Senate Report on Patent and
Plant Variety Protection Remedy Clarification Act (Patent
Remedy Act) “contains no evidence that unremedied patent
infringement by States had become a problem of national
import”). To the contrary, the Senate Report on the ADA
observed that “[a]ll states currently mandate accessibility in
newly constructed state-owned public buildings.” S. Rep.
No. 101–116, p. 92 (1989).
Even if the anecdotal evidence and conclusory statements
relied on by the majority could be properly considered, the
mere existence of an architecturally “inaccessible” court-
house—i. e., one a disabled person cannot utilize without as-
sistance—does not state a constitutional violation. A viola-
tion of due process occurs only when a person is actually
denied the constitutional right to access a given judicial pro-
ceeding. We have never held that a person has a constitu-
tional right to make his way into a courtroom without any
8 The majority rather peculiarly points to Congress’ finding that “ ‘dis-
crimination against individuals with disabilities persists in such critical
areas as . . . access to public services’ ” as evidence that Congress sought
to vindicate the due process rights of disabled persons. Ante, at 529
(quoting 42 U. S. C. § 12101(a)(3) (emphasis added by the Court)). How-
ever, one does not usually refer to the right to attend a judicial proceeding
as “access to [a] public servic[e].” Given the lack of any concern over
courthouse accessibility issues in the legislative history, it is highly un-
likely that this legislative finding obliquely refers to state violations of the
due process rights of disabled persons to attend judicial proceedings.

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547 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
external assistance. Indeed, the fact that the State may
need to assist an individual to attend a hearing has no bear-
ing on whether the individual successfully exercises his due
process right to be present at the proceeding. Nor does
an “inaccessible” courthouse violate the Equal Protection
Clause, unless it is irrational for the State not to alter the
courthouse to make it “accessible.” But financial considera-
tions almost always furnish a rational basis for a State to
decline to make those alterations. See Garrett, 531 U. S., at
372 (noting that it would be constitutional for an employer
to “conserve scarce financial resources” by hiring employees
who can use existing facilities rather than making the facili-
ties accessible to disabled employees). Thus, evidence re-
garding inaccessible courthouses, because it is not evidence
of constitutional violations, provides no basis to abrogate
States’ sovereign immunity.
The near-total lack of actual constitutional violations in
the congressional record is reminiscent of Garrett, wherein
we found that the same type of minimal anecdotal evidence
“f[e]ll far short of even suggesting the pattern of unconstitu-
tional [state action] on which § 5 legislation must be based.”
Id., at 370. See also Kimel, 528 U. S., at 91 (“Congress’ fail-
ure to uncover any significant pattern of unconstitutional dis-
crimination here confirms that Congress had no reason to
believe that broad prophylactic legislation was necessary”);
Florida Prepaid, supra, at 645 (“The legislative record thus
suggests that the Patent Remedy Act did not respond to a
history of ‘widespread and persisting deprivation of constitu-
tional rights’ of the sort Congress has faced in enacting
proper prophylactic § 5 legislation” (quoting City of Boerne,
521 U. S., at 526)).
The barren record here should likewise be fatal to the ma-
jority’s holding that Title II is valid legislation enforcing due
process rights that involve access to the courts. This con-
clusion gains even more support when Title II’s nonexistent
record of constitutional violations is compared with legisla-

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548 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
tion that we have sustained as valid § 5 enforcement leg-
islation. See, e. g., Hibbs, 538 U. S., at 729–732 (tracing the
extensive legislative record documenting States’ gender dis-
crimination in employment leave policies); South Carolina v.
Katzenbach, 383 U. S. 301, 312–313 (1966) (same with respect
to racial discrimination in voting rights). Accordingly, Title
II can only be understood as a congressional attempt to “re-
write the Fourteenth Amendment law laid down by this
Court,” rather than a legitimate effort to remedy or prevent
state violations of that Amendment. Garrett, supra, at 374.9
The third step of our congruence-and-proportionality in-
quiry removes any doubt as to whether Title II is valid § 5
legislation. At this stage, we ask whether the rights and
remedies created by Title II are congruent and proportional
to the constitutional rights it purports to enforce and the
record of constitutional violations adduced by Congress.
Hibbs, supra, at 737–739; Garrett, supra, at 372–373.
Title II provides that “no qualified individual with a dis-
ability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, pro-
grams, or activities of a public entity, or be subjected to dis-
9 The Court correctly explains that “ ‘it [i]s easier for Congress to show
a pattern of state constitutional violations’ ” when it targets state action
that triggers a higher level of constitutional scrutiny. Ante, at 529 (quot-
ing Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736 (2003)).
However, this Court’s precedents attest that Congress may not dispense
with the required showing altogether simply because it purports to en-
force due process rights. See Florida Prepaid Postsecondary Ed. Ex-
pense Bd. v. College Savings Bank, 527 U. S. 627, 645–646 (1999) (invali-
dating Patent Remedy Act, which purported to enforce the Due Process
Clause, because Congress failed to identify a record of constitutional viola-
tions); City of Boerne v. Flores, 521 U. S. 507, 530–531 (1997) (same with
respect to Religious Freedom Restoration Act of 1993 (RFRA)). As the
foregoing discussion demonstrates, that is precisely what the Court has
sanctioned here. Because the record is utterly devoid of proof that Con-
gress was responding to state violations of due process access-to-the-
courts rights, this case is controlled by Florida Prepaid and City of
Boerne, rather than Hibbs.

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549 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
crimination by any such entity.” 42 U. S. C. § 12132. A dis-
abled person is considered “qualified” if he “meets the
essential eligibility requirements” for the receipt of the enti-
ty’s services or participation in the entity’s programs, “with
or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision of auxiliary aids
and services.” § 12131(2) (emphasis added). The ADA’s
findings make clear that Congress believed it was attacking
“discrimination” in all areas of public services, as well as
the “discriminatory effects” of “architectural, transportation,
and communication barriers.” §§ 12101(a)(3), (a)(5). In
sum, Title II requires, on pain of money damages, special
accommodations for disabled persons in virtually every in-
teraction they have with the State.
“Despite subjecting States to this expansive liability,” the
broad terms of Title II “d[o] nothing to limit the coverage of
the Act to cases involving arguable constitutional viola-
tions.” Florida Prepaid, 527 U. S., at 646. By requiring
special accommodation and the elimination of programs that
have a disparate impact on the disabled, Title II prohibits
far more state conduct than does the equal protection ban
on irrational discrimination. We invalidated Title I’s similar
requirements in Garrett, observing that “[i]f special accom-
modations for the disabled are to be required, they have to
come from positive law and not through the Equal Protec-
tion Clause.” 531 U. S., at 368; id., at 372–373 (contrast-
ing Title I’s reasonable accommodation and disparate-impact
provisions with the Fourteenth Amendment’s require-
ments). Title II fails for the same reason. Like Title I,
Title II may be laudable public policy, but it cannot be seri-
ously disputed that it is also an attempt to legislatively “re-
define the States’ legal obligations” under the Fourteenth
Amendment. Kimel, supra, at 88.
The majority, however, claims that Title II also vindicates
fundamental rights protected by the Due Process Clause—

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550 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
in addition to access to the courts—that are subject to
heightened Fourteenth Amendment scrutiny. Ante, at 522–
523 (citing Dunn v. Blumstein, 405 U. S. 330, 336–337 (1972)
(voting); Shapiro v. Thompson, 394 U. S. 618, 634 (1969)
(right to move to a new jurisdiction); Skinner v. Oklahoma
ex rel. Williamson, 316 U. S. 535, 541 (1942) (marriage and
procreation)). But Title II is not tailored to provide prophy-
lactic protection of these rights; instead, it applies to any
service, program, or activity provided by any entity. Its
provisions affect transportation, health, education, and rec-
reation programs, among many others, all of which are
accorded only rational-basis scrutiny under the Equal Pro-
tection Clause. A requirement of accommodation for the
disabled at a state-owned amusement park or sports
stadium, for example, bears no permissible prophylactic re-
lationship to enabling disabled persons to exercise their fun-
damental constitutional rights. Thus, as with Title I in
Garrett, the Patent Remedy Act in Florida Prepaid, the
Age Discrimination in Employment Act of 1967 in Kimel,
and the RFRA in City of Boerne, all of which we invalidated
as attempts to substantively redefine the Fourteenth
Amendment, it is unlikely “that many of the [state actions]
affected by [Title II] have [any] likelihood of being unconsti-
tutional.” City of Boerne, supra, at 532. Viewed as a
whole, then, there is little doubt that Title II of the ADA
does not validly abrogate state sovereign immunity.10
10 Title II’s all-encompassing approach to regulating public services con-
trasts starkly with the more closely tailored laws we have upheld as legiti-
mate prophylactic § 5 legislation. In Hibbs, for example, the FMLA was
“narrowly targeted” to remedy widespread gender discrimination in the
availability of family leave. 538 U. S., at 738–739 (distinguishing City of
Boerne, Kimel v. Florida Bd. of Regents, 528 U. S. 62 (2000), and Garrett
on this ground). Similarly, in cases involving enforcement of the Fif-
teenth Amendment, we upheld “limited remedial scheme[s]” that were
narrowly tailored to address massive evidence of discrimination in voting.
Garrett, 531 U. S., at 373 (discussing South Carolina v. Katzenbach, 383
U. S. 301 (1966)). Unlike these statutes, Title II’s “indiscriminate scope

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551 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
The majority concludes that Title II’s massive overbreadth
can be cured by considering the statute only “as it applies
to the class of cases implicating the accessibility of judicial
services.” Ante, at 531 (citing United States v. Raines, 362
U. S. 17, 26 (1960)). I have grave doubts about importing an
“as applied” approach into the § 5 context. While the ma-
jority is of course correct that this Court normally only
considers the application of a statute to a particular case,
the proper inquiry under City of Boerne and its progeny
is somewhat different. In applying the congruence-and-
proportionality test, we ask whether Congress has at-
tempted to statutorily redefine the constitutional rights pro-
tected by the Fourteenth Amendment. This question can
only be answered by measuring the breadth of a statute’s
coverage against the scope of the constitutional rights it pur-
ports to enforce and the record of violations it purports to
remedy.
In conducting its as-applied analysis, however, the major-
ity posits a hypothetical statute, never enacted by Congress,
that applies only to courthouses. The effect is to rig the
congruence-and-proportionality test by artificially constrict-
ing the scope of the statute to closely mirror a recognized
constitutional right. But Title II is not susceptible of being
carved up in this manner; it applies indiscriminately to all
“services,” “programs,” or “activities” of any “public entity.”
Thus, the majority’s approach is not really an assessment of
whether Title II is “appropriate legislation” at all, U. S.
Const., Amdt. 14, § 5 (emphasis added), but a test of whether
the Court can conceive of a hypothetical statute narrowly
tailored enough to constitute valid prophylactic legislation.
Our § 5 precedents do not support this as-applied ap-
proach. In each case, we measured the full breadth of the
statute or relevant provision that Congress enacted against
. . . is particularly incongruous in light of the scant support for the predi-
cate unconstitutional conduct that Congress intended to remedy.” Flor-
ida Prepaid, 527 U. S., at 647.

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552 TENNESSEE v. LANE
Rehnquist, C. J., dissenting
the scope of the constitutional right it purported to enforce.
If we had arbitrarily constricted the scope of the statutes to
match the scope of a core constitutional right, those cases
might have come out differently. In Garrett, for example,
Title I might have been upheld “as applied” to irrational em-
ployment discrimination; or in Florida Prepaid, the Patent
Remedy Act might have been upheld “as applied” to inten-
tional, uncompensated patent infringements. It is thus not
surprising that the only authority cited by the majority is
Raines, supra, a case decided long before we enunciated the
congruence-and-proportionality test.11
I fear that the Court’s adoption of an as-applied approach
eliminates any incentive for Congress to craft § 5 legislation
for the purpose of remedying or deterring actual constitu-
tional violations. Congress can now simply rely on the
courts to sort out which hypothetical applications of an undif-
ferentiated statute, such as Title II, may be enforced against
the States. All the while, States will be subjected to sub-
stantial litigation in a piecemeal attempt to vindicate their
Eleventh Amendment rights. The majority’s as-applied ap-
proach simply cannot be squared with either our recent prec-
edent or the proper role of the Judiciary.
11 Raines is inapposite in any event. The Court there considered the
constitutionality of the Civil Rights Act of 1957—a statute designed to
enforce the Fifteenth Amendment—whose narrowly tailored substantive
provisions could “unquestionably” be applied to state actors (like the re-
spondents therein). 362 U. S., at 25, 26. The only question presented
was whether the statute was facially invalid because it might be read to
constrain nonstate actors as well. Id., at 20. The Court upheld the stat-
ute as applied to respondents and declined to entertain the facial chal-
lenge. Id., at 24–26. The situation in this case is much different: The
very question presented is whether Title II’s indiscriminate substantive
provisions can constitutionally be applied to the petitioner State. Raines
thus provides no support for avoiding this question by conjuring up an
imaginary statute with substantive provisions that might pass the
congruence-and-proportionality test.

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553 Cite as: 541 U. S. 509 (2004)
Rehnquist, C. J., dissenting
Even in the limited courthouse-access context, Title II
does not properly abrogate state sovereign immunity. As
demonstrated in depth above, Congress utterly failed to
identify any evidence that disabled persons were denied con-
stitutionally protected access to judicial proceedings. With-
out this predicate showing, Title II, even if we were to
hypothesize that it applies only to courthouses, cannot be
viewed as a congruent and proportional response to state
constitutional violations. Garrett, 531 U. S., at 368 (“Con-
gress’ § 5 authority is appropriately exercised only in re-
sponse to state transgressions”).
Moreover, even in the courthouse-access context, Title II
requires substantially more than the Due Process Clause.
Title II subjects States to private lawsuits if, inter alia,
they fail to make “reasonable modifications” to facili-
ties, such as removing “architectural . . . barriers.” 42
U. S. C. §§ 12131(2), 12132. Yet the statute is not limited to
occasions when the failure to modify results, or will likely
result, in an actual due process violation—i. e., the inability
of a disabled person to participate in a judicial proceeding.
Indeed, liability is triggered if an inaccessible building re-
sults in a disabled person being “subjected to discrimina-
tion”—a term that presumably encompasses any sort of in-
convenience in accessing the facility, for whatever purpose.
§ 12132.
The majority’s reliance on Boddie v. Connecticut, 401 U. S.
371 (1971), and other cases in which we held that due process
requires the State to waive filing fees for indigent litigants,
is unavailing. While these cases support the principle that
the State must remove financial requirements that in fact
prevent an individual from exercising his constitutional
rights, they certainly do not support a statute that subjects
a State to liability for failing to make a vast array of special
accommodations, without regard for whether the failure to
accommodate results in a constitutional wrong.

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554 TENNESSEE v. LANE
Scalia, J., dissenting
In this respect, Title II is analogous to the Patent Remedy
Act at issue in Florida Prepaid. That statute subjected
States to monetary liability for any act of patent infringe-
ment. 527 U. S., at 646–647. Thus, “Congress did nothing
to limit” the Patent Remedy Act’s coverage “to cases involv-
ing arguable [due process] violations,” such as when the
infringement was nonnegligent or uncompensated. Ibid.
Similarly here, Congress has authorized private damages
suits against a State for merely maintaining a courthouse
that is not readily accessible to the disabled, without regard
to whether a disabled person’s due process rights are ever
violated. Accordingly, even as applied to the “access to the
courts” context, Title II’s “indiscriminate scope offends [the
congruence-and-proportionality] principle,” particularly in
light of the lack of record evidence showing that inaccessible
courthouses cause actual due process violations. Id., at
647.12
For the foregoing reasons, I respectfully dissent.
Justice Scalia, dissenting.
Section 5 of the Fourteenth Amendment provides that
Congress “shall have power to enforce, by appropriate legis-
lation, the provisions” of that Amendment—including, of
course, the Amendment’s Equal Protection and Due Process
Clauses. In Katzenbach v. Morgan, 384 U. S. 641 (1966), we
12 The majority’s invocation of Hibbs to justify Title II’s overbreadth is
unpersuasive. See ante, at 533, n. 24. The Hibbs Court concluded that
“in light of the evidence before Congress” the FMLA’s 12-week family-
leave provision was necessary to “achiev[e] Congress’ remedial object.”
538 U. S., at 748. The Court found that the legislative record included
not only evidence of state constitutional violations, but evidence that a
provision merely enforcing the Equal Protection Clause would actually
perpetuate the gender stereotypes Congress sought to eradicate because
employers could simply eliminate family leave entirely. Ibid. Without
comparable evidence of constitutional violations and the necessity of pro-
phylactic measures, the Court has no basis on which to uphold Title II’s
special-accommodation requirements.

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555 Cite as: 541 U. S. 509 (2004)
Scalia, J., dissenting
decided that Congress could, under this provision, forbid
English literacy tests for Puerto Rican voters in New York
State who met certain educational criteria. Though those
tests were not themselves in violation of the Fourteenth
Amendment, we held that § 5 authorizes prophylactic legisla-
tion—that is, “legislation that proscribes facially constitu-
tional conduct,” Nevada Dept. of Human Resources v. Hibbs,
538 U. S. 721, 728 (2003), when Congress determines such
proscription is desirable “ ‘to make the amendments fully ef-
fective,’ ” Morgan, supra, at 648 (quoting Ex parte Virginia,
100 U. S. 339, 345 (1880)). We said that “the measure of
what constitutes ‘appropriate legislation’ under § 5 of the
Fourteenth Amendment” is the flexible “necessary and
proper” standard of McCulloch v. Maryland, 4 Wheat. 316,
342, 421 (1819). Morgan, 384 U. S., at 651. We described
§ 5 as “a positive grant of legislative power authorizing Con-
gress to exercise its discretion in determining whether and
what legislation is needed to secure the guarantees of the
Fourteenth Amendment.” Ibid.
The Morgan opinion followed close upon our decision in
South Carolina v. Katzenbach, 383 U. S. 301 (1966), which
had upheld prophylactic application of the similarly worded
“enforce” provision of the Fifteenth Amendment (§ 2) to chal-
lenged provisions of the Voting Rights Act of 1965. But the
Fourteenth Amendment, unlike the Fifteenth, is not limited
to denial of the franchise and not limited to the denial of
other rights on the basis of race. In City of Boerne v. Flo-
res, 521 U. S. 507 (1997), we confronted Congress’s inevitable
expansion of the Fourteenth Amendment, as interpreted in
Morgan, beyond the field of racial discrimination.1 There
Congress had sought, in the Religious Freedom Restoration
1 Congress had previously attempted such an extension in the Voting
Rights Act Amendments of 1970, 84 Stat. 318, which sought to lower the
voting age in state elections from 21 to 18. This extension was rejected,
but in three separate opinions, none of which commanded a majority of
the Court. See infra, at 563.

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556 TENNESSEE v. LANE
Scalia, J., dissenting
Act of 1993, 107 Stat. 1488, 42 U. S. C. § 2000bb et seq., to
impose upon the States an interpretation of the First
Amendment’s Free Exercise Clause that this Court had ex-
plicitly rejected. To avoid placing in congressional hands
effective power to rewrite the Bill of Rights through the me-
dium of § 5, we formulated the “congruence and proportional-
ity” test for determining what legislation is “appropriate.”
When Congress enacts prophylactic legislation, we said,
there must be “proportionality or congruence between the
means adopted and the legitimate end to be achieved.” 521
U. S., at 533.
I joined the Court’s opinion in Boerne with some misgiv-
ing. I have generally rejected tests based on such malleable
standards as “proportionality,” because they have a way of
turning into vehicles for the implementation of individual
judges’ policy preferences. See, e. g., Ewing v. California,
538 U. S. 11, 31–32 (2003) (Scalia, J., concurring in judg-
ment) (declining to apply a “proportionality” test to the
Eighth Amendment’s ban on cruel and unusual punishment);
Stenberg v. Carhart, 530 U. S. 914, 954–956 (2000) (Scalia,
J., dissenting) (declining to apply the “undue burden” stand-
ard of Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833 (1992)); BMW of North America, Inc. v. Gore,
517 U. S. 559, 599 (1996) (Scalia, J., dissenting) (declining to
apply a “reasonableness” test to punitive damages under the
Due Process Clause). Even so, I signed on to the “congru-
ence and proportionality” test in Boerne, and adhered to it
in later cases: Florida Prepaid Postsecondary Ed. Expense
Bd. v. College Savings Bank, 527 U. S. 627 (1999), where we
held that the provisions of the Patent and Plant Variety Pro-
tection Remedy Clarification Act, 35 U. S. C. §§ 271(h), 296(a),
were “ ‘so out of proportion to a supposed remedial or pre-
ventive object that [they] cannot be understood as responsive
to, or designed to prevent, unconstitutional behavior,’ ” 527
U. S., at 646 (quoting Boerne, supra, at 532); Kimel v. Flor-
ida Bd. of Regents, 528 U. S. 62 (2000), where we held that

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557 Cite as: 541 U. S. 509 (2004)
Scalia, J., dissenting
the Age Discrimination in Employment Act of 1967, 81 Stat.
602, as amended, 29 U. S. C. § 621 et seq. (1994 ed. and Supp.
III), imposed on state and local governments requirements
“disproportionate to any unconstitutional conduct that con-
ceivably could be targeted by the Act,” 528 U. S., at 83;
United States v. Morrison, 529 U. S. 598 (2000), where we
held that a provision of the Violence Against Women Act of
1994, 42 U. S. C. § 13981, lacked congruence and proportional-
ity because it was “not aimed at proscribing discrimination
by officials which the Fourteenth Amendment might not it-
self proscribe,” 529 U. S., at 626; and Board of Trustees of
Univ. of Ala. v. Garrett, 531 U. S. 356 (2001), where we said
that Title I of the Americans with Disabilities Act of 1990
(ADA), 104 Stat. 330, 42 U. S. C. §§ 12111–12117, raised “the
same sort of concerns as to congruence and proportionality
as were found in City of Boerne,” 531 U. S., at 372.
But these cases were soon followed by Nevada Dept. of
Human Resources v. Hibbs, in which the Court held that the
Family and Medical Leave Act of 1993, 107 Stat. 9, 29 U. S. C.
§ 2612 et seq., which required States to provide their employ-
ees up to 12 work weeks of unpaid leave (for various pur-
poses) annually, was “congruent and proportional to its re-
medial object [of preventing sex discrimination], and can be
understood as responsive to, or designed to prevent, uncon-
stitutional behavior.” 538 U. S., at 740 (internal quotation
marks omitted). I joined Justice Kennedy’s dissent,
which established (conclusively, I thought) that Congress had
identified no unconstitutional state action to which the stat-
ute could conceivably be a proportional response. And now
we have today’s decision, holding that Title II of the ADA is
congruent and proportional to the remediation of constitu-
tional violations, in the face of what seems to me a compel-
ling demonstration of the opposite by The Chief Justice’s
dissent.
I yield to the lessons of experience. The “congruence and
proportionality” standard, like all such flabby tests, is a

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558 TENNESSEE v. LANE
Scalia, J., dissenting
standing invitation to judicial arbitrariness and policy-driven
decisionmaking. Worse still, it casts this Court in the role
of Congress’s taskmaster. Under it, the courts (and ulti-
mately this Court) must regularly check Congress’s home-
work to make sure that it has identified sufficient consti-
tutional violations to make its remedy congruent and
proportional. As a general matter, we are ill advised to
adopt or adhere to constitutional rules that bring us into
constant conflict with a coequal branch of Government.
And when conflict is unavoidable, we should not come to do
battle with the United States Congress armed only with a
test (“congruence and proportionality”) that has no demon-
strable basis in the text of the Constitution and cannot objec-
tively be shown to have been met or failed. As I wrote for
the Court in an earlier case, “low walls and vague distinc-
tions will not be judicially defensible in the heat of inter-
branch conflict.” Plaut v. Spendthrift Farm, Inc., 514 U. S.
211, 239 (1995).
I would replace “congruence and proportionality” with an-
other test—one that provides a clear, enforceable limitation
supported by the text of § 5. Section 5 grants Congress the
power “to enforce, by appropriate legislation,” the other pro-
visions of the Fourteenth Amendment. U. S. Const., Amdt.
14 (emphasis added). Morgan notwithstanding, one does
not, within any normal meaning of the term, “enforce” a pro-
hibition by issuing a still broader prohibition directed to the
same end. One does not, for example, “enforce” a 55-mile-
per-hour speed limit by imposing a 45-mile-per-hour speed
limit—even though that is indeed directed to the same end
of automotive safety and will undoubtedly result in many
fewer violations of the 55-mile-per-hour limit. And one does
not “enforce” the right of access to the courts at issue in this
case, see ante, at 531, by requiring that disabled persons be
provided access to all of the “services, programs, or activi-
ties” furnished or conducted by the State, 42 U. S. C. § 12132.
That is simply not what the power to enforce means—or ever

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559 Cite as: 541 U. S. 509 (2004)
Scalia, J., dissenting
meant. The 1860 edition of Noah Webster’s American Dic-
tionary of the English Language, current when the Four-
teenth Amendment was adopted, defined “enforce” as: “To
put in execution; to cause to take effect; as, to enforce the
laws.” Id., at 396. See also J. Worcester, Dictionary of the
English Language 484 (1860) (“To put in force; to cause to
be applied or executed; as, ‘To enforce a law’ ”). Nothing
in § 5 allows Congress to go beyond the provisions of the
Fourteenth Amendment to proscribe, prevent, or “remedy”
conduct that does not itself violate any provision of the Four-
teenth Amendment. So-called “prophylactic legislation” is
reinforcement rather than enforcement.
Morgan asserted that this commonsense interpretation
“would confine the legislative power . . . to the insignificant
role of abrogating only those state laws that the judicial
branch was prepared to adjudge unconstitutional, or of
merely informing the judgment of the judiciary by particu-
larizing the ‘majestic generalities’ of § 1 of the Amendment.”
384 U. S., at 648–649. That is not so. One must remember
“that in 1866 the lower federal courts had no general juris-
diction of cases alleging a deprivation of rights secured by
the Constitution.” R. Berger, Government By Judiciary 247
(2d ed. 1997). If, just after the Fourteenth Amendment was
ratified, a State had enacted a law imposing racially discrimi-
natory literacy tests (different questions for different races)
a citizen prejudiced by such a test would have had no means
of asserting his constitutional right to be free of it. Section
5 authorizes Congress to create a cause of action through
which the citizen may vindicate his Fourteenth Amendment
rights. One of the first pieces of legislation passed under
Congress’s § 5 power was the Ku Klux Klan Act of April 20,
1871, 17 Stat. 13, entitled “An Act to enforce the Provisions
of the Fourteenth Amendment to the Constitution of the
United States, and for other Purposes.” Section 1 of that
Act, later codified as Rev. Stat. § 1979, 42 U. S. C. § 1983, au-
thorized a cause of action against “any person who, under

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560 TENNESSEE v. LANE
Scalia, J., dissenting
color of any law, statute, ordinance, regulation, custom, or
usage of any State, shall subject, or cause to be subjected,
any person within the jurisdiction of the United States to
the deprivation of any rights, privileges, or immunities se-
cured by the Constitution of the United States.” 17 Stat.
13. Section 5 would also authorize measures that do not
restrict the States’ substantive scope of action but impose
requirements directly related to the facilitation of “enforce-
ment”—for example, reporting requirements that would
enable violations of the Fourteenth Amendment to be identi-
fied.2 But what § 5 does not authorize is so-called “prophy-
lactic” measures, prohibiting primary conduct that is itself
not forbidden by the Fourteenth Amendment.
The major impediment to the approach I have suggested
is stare decisis. A lot of water has gone under the bridge
since Morgan, and many important and well-accepted meas-
ures, such as the Voting Rights Act, assume the validity of
Morgan and South Carolina. As Prof. Archibald Cox put
it in his Supreme Court Foreword: “The etymological mean-
ing of section 5 may favor the narrower reading. Literally,
‘to enforce’ means to compel performance of the obligations
imposed; but the linguistic argument lost much of its force
once the South Carolina and Morgan cases decided that
the power to enforce embraces any measure appropriate to
effectuating the performance of the state’s constitutional
duty.” Foreword: Constitutional Adjudication and the Pro-
motion of Human Rights, 80 Harv. L. Rev. 91, 110–111 (1966).
2 Professor Tribe’s treatise gives some examples of such measures that
facilitate enforcement in the context of the Fifteenth Amendment:
“The Civil Rights Act of 1957, 71 Stat. 634, authorized the Attorney
General to seek injunctions against interference with the right to vote on
racial grounds. The Civil Rights Act of 1960, 74 Stat. 86, permitted join-
der of states as parties defendant, gave the Attorney General access to
local voting records, and authorized courts to register voters in areas
of systemic discrimination. The Civil Rights Act of 1964, 78 Stat. 241,
expedited the hearing of voting cases before three-judge courts . . . .”
L. Tribe, American Constitutional Law 931, n. 5 (3d ed. 2000).

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561 Cite as: 541 U. S. 509 (2004)
Scalia, J., dissenting
However, South Carolina and Morgan, all of our later
cases except Hibbs that give an expansive meaning to “en-
force” in § 5 of the Fourteenth Amendment, and all of our
earlier cases that even suggest such an expansive meaning
in dicta, involved congressional measures that were directed
exclusively against, or were used in the particular case to
remedy, racial discrimination. See Oregon v. Mitchell, 400
U. S. 112 (1970) (see discussion infra); Ex parte Virginia, 100
U. S. 339 (1880) (dictum in a case involving a statute that
imposed criminal penalties for officials’ racial discrimination
in jury selection); Strauder v. West Virginia, 100 U. S. 303,
311–312 (1880) (dictum in a case involving a statute that per-
mitted removal to federal court of a black man’s claim that
his jury had been selected in a racially discriminatory man-
ner); Virginia v. Rives, 100 U. S. 313, 318 (1880) (dictum in a
racial discrimination case involving the same statute). See
also City of Rome v. United States, 446 U. S. 156, 173–178
(1980) (upholding as valid legislation under § 2 of the Fif-
teenth Amendment the most sweeping provisions of the Vot-
ing Rights Act of 1965); Jones v. Alfred H. Mayer Co., 392
U. S. 409, 439–441 (1968) (upholding a law, 42 U. S. C. § 1982,
banning public or private racial discrimination in the sale
and rental of property as appropriate legislation under § 2 of
the Thirteenth Amendment).
Giving § 5 more expansive scope with regard to measures
directed against racial discrimination by the States accords
to practices that are distinctively violative of the principal
purpose of the Fourteenth Amendment a priority of at-
tention that this Court envisioned from the beginning, and
that has repeatedly been reflected in our opinions. In the
Slaughter-House Cases, 16 Wall. 36, 81 (1873), the Court’s
first confrontation with the Fourteenth Amendment, we said
the following with respect to the Equal Protection Clause:
“We doubt very much whether any action of a State not
directed by way of discrimination against the negroes as
a class, or on account of their race, will ever be held to

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562 TENNESSEE v. LANE
Scalia, J., dissenting
come within the purview of this provision. It is so
clearly a provision for that race and that emergency,
that a strong case would be necessary for its application
to any other.”
Racial discrimination was the practice at issue in the early
cases (cited in Morgan) that gave such an expansive descrip-
tion of the effects of § 5. See 384 U. S., at 648 (citing
Ex parte Virginia); 384 U. S., at 651 (citing Strauder v. West
Virginia and Virginia v. Rives). 3 In those early days, bear
in mind, the guarantee of equal protection had not been ex-
tended beyond race to sex, age, and the many other cat-
egories it now covers. Also still to be developed were the
incorporation doctrine (which holds that the Fourteenth
Amendment incorporates and applies against the States the
Bill of Rights, see Duncan v. Louisiana, 391 U. S. 145, 147–
148 (1968)) and the doctrine of so-called “substantive due
process” (which holds that the Fourteenth Amendment’s Due
Process Clause protects unenumerated liberties, see gener-
3 A later case cited in Morgan, James Everard’s Breweries v. Day, 265
U. S. 545, 558–563 (1924), applied the more flexible standard of McCulloch
v. Maryland, 4 Wheat. 316 (1819), to the Eighteenth Amendment, which,
in § 1, forbade “the manufacture, sale, or transportation of intoxicating
liquors within, the importation thereof into, or the exportation thereof
from the United States . . . for beverage purposes” and provided, in § 2,
that “Congress and the several States shall have concurrent power to en-
force this article by appropriate legislation.” Congress had provided, in
the Supplemental Prohibition Act of 1921, § 2, 42 Stat. 222, that “only spiri-
tuous and vinous liquor may be prescribed for medicinal purposes.” That
was challenged as unconstitutional because it went beyond the regulation
of intoxicating liquors for beverage purposes, and hence beyond “enforce-
ment.” In an opinion citing none of the Thirteenth, Fourteenth, and Fif-
teenth Amendment cases discussed in text, the Court held that the Mc-
Culloch v. Maryland test applied. Unlike what is at issue here, that case
did not involve a power to control the States in respects not otherwise
permitted by the Constitution. The only consequence of the Federal Gov-
ernment’s going beyond “enforcement” narrowly defined was its arguable
incursion upon powers left to the States—which is essentially the same
issue that McCulloch addressed.

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563 Cite as: 541 U. S. 509 (2004)
Scalia, J., dissenting
ally Lawrence v. Texas, 539 U. S. 558 (2003); Planned Parent-
hood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)).
Thus, the Fourteenth Amendment did not include the many
guarantees that it now provides. In such a seemingly lim-
ited context, it did not appear to be a massive expansion of
congressional power to interpret § 5 broadly. Broad inter-
pretation was particularly appropriate with regard to racial
discrimination, since that was the principal evil against
which the Equal Protection Clause was directed, and the
principal constitutional prohibition that some of the States
stubbornly ignored. The former is still true, and the latter
remained true at least as late as Morgan.
When congressional regulation has not been targeted at
racial discrimination, we have given narrower scope to § 5.
In Oregon v. Mitchell, 400 U. S. 112 (1970), the Court upheld,
under § 2 of the Fifteenth Amendment, that provision of the
Voting Rights Act Amendments of 1970, 84 Stat. 314, which
barred literacy tests and similar voter-eligibility require-
ments—classic tools of the racial discrimination in voting
that the Fifteenth Amendment forbids; but found to be be-
yond the § 5 power of the Fourteenth Amendment the provi-
sion that lowered the voting age from 21 to 18 in state elec-
tions. See 400 U. S., at 124–130 (opinion of Black, J.); id., at
153–154 (Harlan, J., concurring in part and dissenting in
part); id., at 293–296 (Stewart, J., joined by Burger, C. J., and
Blackmun, J., concurring in part and dissenting in part). A
third provision, which forbade States from disqualifying vot-
ers by reason of residency requirements, was also upheld—
but only a minority of the Justices believed that § 5 was
adequate authority. Justice Black’s opinion in that case
described exactly the line I am drawing here, suggesting
that Congress’s enforcement power is broadest when di-
rected “to the goal of eliminating discrimination on account
of race.” Id., at 130. And of course the results reached in
Boerne, Florida Prepaid, Kimel, Morrison, and Garrett are
consistent with the narrower compass afforded congressional

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564 TENNESSEE v. LANE
Scalia, J., dissenting
regulation that does not protect against or prevent racial
discrimination.
Thus, principally for reasons of stare decisis, I shall hence-
forth apply the permissive McCulloch standard to congres-
sional measures designed to remedy racial discrimination by
the States. I would not, however, abandon the requirement
that Congress may impose prophylactic § 5 legislation only
upon those particular States in which there has been an
identified history of relevant constitutional violations. See
Hibbs, 538 U. S., at 741–743 (Scalia, J., dissenting); Mor-
rison, 529 U. S., at 626–627; Morgan, 384 U. S., at 666–667,
669, 670–671 (Harlan, J., dissenting).4 I would also adhere
to the requirement that the prophylactic remedy predicated
upon such state violations must be directed against the
States or state actors rather than the public at large. See
Morrison, supra, at 625–626. And I would not, of course,
permit any congressional measures that violate other provi-
sions of the Constitution. When those requirements have
been met, however, I shall leave it to Congress, under con-
straints no tighter than those of the Necessary and Proper
Clause, to decide what measures are appropriate under § 5
to prevent or remedy racial discrimination by the States.
4 Dicta in one of our earlier cases seemed to suggest that even nonpro-
phylactic provisions could not be adopted under § 5 except in response to
a State’s constitutional violations:
“When the State has been guilty of no violation of [the Fourteenth Amend-
ment’s] provisions; when it has not made or enforced any law abridging
the privileges or immunities of citizens of the United States; when no one
of its departments has deprived any person of life, liberty, or property
without due process of law, or denied to any person within its jurisdiction
the equal protection of the laws; when, on the contrary, the laws of the
State, as enacted by its legislative, and construed by its judicial, and ad-
ministered by its executive departments, recognize and protect the rights
of all persons, the amendment imposes no duty and confers no power upon
Congress.” United States v. Harris, 106 U. S. 629, 639 (1883).
I do not see the textual basis for this interpretation.

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565 Cite as: 541 U. S. 509 (2004)
Thomas, J., dissenting
I shall also not subject to “congruence and proportional-
ity” analysis congressional action under § 5 that is not di-
rected to racial discrimination. Rather, I shall give full ef-
fect to that action when it consists of “enforcement” of the
provisions of the Fourteenth Amendment, within the broad
but not unlimited meaning of that term I have described
above. When it goes beyond enforcement to prophylaxis,
however, I shall consider it ultra vires. The present legisla-
tion is plainly of the latter sort.
* * *
Requiring access for disabled persons to all public build-
ings cannot remotely be considered a means of “enforcing”
the Fourteenth Amendment. The considerations of long ac-
cepted practice and of policy that sanctioned such distortion
of language where state racial discrimination is at issue do
not apply in this field of social policy far removed from the
principal object of the Civil War Amendments. “The seduc-
tive plausibility of single steps in a chain of evolutionary de-
velopment of a legal rule is often not perceived until a third,
fourth, or fifth ‘logical’ extension occurs. Each step, when
taken, appeared a reasonable step in relation to that which
preceded it, although the aggregate or end result is one that
would never have been seriously considered in the first in-
stance. This kind of gestative propensity calls for the ‘line
drawing’ familiar in the judicial, as in the legislative process:
‘thus far but not beyond.’ ” United States v. 12 200-ft. Reels
of Super 8MM. Film, 413 U. S. 123, 127 (1973) (Burger, C. J.,
for the Court) (footnote omitted). It is past time to draw a
line limiting the uncontrolled spread of a well-intentioned
textual distortion. For these reasons, I respectfully dissent
from the judgment of the Court.
Justice Thomas, dissenting.
I join The Chief Justice’s dissent. I agree that Title II
of the Americans with Disabilities Act of 1990 cannot be a

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566 TENNESSEE v. LANE
Thomas, J., dissenting
congruent and proportional remedy to the States’ alleged
practice of denying disabled persons access to the courts.
Not only did Congress fail to identify any evidence of such a
practice when it enacted the ADA, ante, at 541–548, Title II
regulates far more than the provision of access to the courts,
ante, at 548–554. Because I joined the dissent in Nevada
Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), and
continue to believe that Hibbs was wrongly decided, I write
separately only to disavow any reliance on Hibbs in reaching
this conclusion.

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567 OCTOBER TERM, 2003
Syllabus
GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.,
et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 02–1689. Argued March 3, 2004—Decided May 17, 2004
Respondent Atlas Global Group, L. P., a limited partnership created under
Texas law, filed a state-law suit against petitioner, a Mexican corpora-
tion, in federal court, alleging diversity jurisdiction. After the jury
returned a verdict for Atlas, but before entry of judgment, petitioner
moved to dismiss for lack of subject-matter jurisdiction because the par-
ties were not diverse at the time the complaint was filed. In granting
the motion, the Magistrate Judge found that, as a partnership, Atlas
was a Mexican citizen because two of its partners, also respondents,
were Mexican citizens at the time of filing; and that the requisite diver-
sity was absent because petitioner was also a Mexican citizen. On ap-
peal, Atlas urged the Fifth Circuit to disregard the diversity failure at
the time of filing because the Mexican partners had left Atlas before the
trial began and, thus, diversity existed thereafter. Relying on Cater-
pillar Inc. v. Lewis, 519 U. S. 61, the Fifth Circuit held that the conclu-
siveness of citizenship at the time of filing is subject to an exception
where, as here, the jurisdictional error was not identified until after the
jury’s verdict and the postfiling change in the partnership cured the
jurisdictional defect before it was identified.
Held: A party’s postfiling change in citizenship cannot cure a lack of
subject-matter jurisdiction that existed at the time of filing in a diver-
sity action. This Court has long adhered to the rule that subject-
matter jurisdiction in diversity cases depends on the state of facts that
existed at the time of filing. Caterpillar’s statement that “[o]nce a di-
versity case has been tried in federal court . . . considerations of finality,
efficiency, and economy become overwhelming,” 519 U. S., at 75, did not
augur a new approach to deciding whether a jurisdictional defect has
been cured. The jurisdictional defect Caterpillar addressed had been
cured by the dismissal of the party that had destroyed diversity, a cur-
ing method that had long been an exception to the time-of-filing rule.
This Court has never approved a deviation from the longstanding rule
that “[w]here there is no change of party, a jurisdiction depending on
the condition of the party is governed by that condition, as it was at the
commencement of the suit.” Conolly v. Taylor, 2 Pet. 556, 565 (empha-
sis added). Dismissal for lack of subject-matter jurisdiction is the only

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568 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Opinion of the Court
option available here. Allowing a citizenship change in the partnership
to cure the jurisdictional defect existing at the time of filing would con-
travene the Conolly principle. Apart from breaking with this Court’s
longstanding precedent, holding that “finality, efficiency, and judicial
economy” can justify suspension of the time-of-filing rule would create
an exception of indeterminate scope that is bound to produce costly col-
lateral litigation. Pp. 570–582.
312 F. 3d 168, reversed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Ginsburg, J.,
filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ.,
joined, post, p. 582.
William J. Boyce argued the cause for petitioner. With
him on the briefs were Warren S. Huang and Mark A.
Robertson.
Roger B. Greenberg argued the cause for respondents.
With him on the brief was Gerardo Garcia.
Justice Scalia delivered the opinion of the Court.
This case presents the question whether a party’s post-
filing change in citizenship can cure a lack of subject-matter
jurisdiction that existed at the time of filing in an action
premised upon diversity of citizenship. See 28 U. S. C.
§ 1332.
I
Respondent Atlas Global Group, L. P., is a limited partner-
ship created under Texas law. In November 1997, Atlas
filed a state-law suit against petitioner Grupo Dataflux, a
Mexican corporation, in the United States District Court for
the Southern District of Texas. The complaint contained
claims for breach of contract and in quantum meruit, seek-
ing over $1.3 million in damages. It alleged that “[f]ederal
jurisdiction is proper based upon diversity jurisdiction pur-
suant to 28 U. S. C. § 1332(a), as this suit is between a Texas
citizen [Atlas] and a citizen or subject of Mexico [Grupo Da-

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569 Cite as: 541 U. S. 567 (2004)
Opinion of the Court
taflux].” 1 App. 19a (Complaint ¶ 3). Pretrial motions and
discovery consumed almost three years. In October 2000,
the parties consented to a jury trial presided over by a Mag-
istrate Judge. On October 27, after a 6-day trial, the jury
returned a verdict in favor of Atlas awarding $750,000 in
damages.
On November 18, before entry of the judgment, Dataflux
filed a motion to dismiss for lack of subject-matter jurisdic-
tion because the parties were not diverse at the time the
complaint was filed. See Fed. Rules Civ. Proc. 12(b)(1),
(h)(3). The Magistrate Judge granted the motion. The dis-
missal was based upon the accepted rule that, as a partner-
ship, Atlas is a citizen of each State or foreign country of
which any of its partners is a citizen. See Carden v. Ark-
oma Associates, 494 U. S. 185, 192–195 (1990). Because
Atlas had two partners who were Mexican citizens at the
time of filing, the partnership was a Mexican citizen. (It
was also a citizen of Delaware and Texas based on the citi-
zenship of its other partners.) And because the defendant,
Dataflux, was a Mexican corporation, aliens were on both
sides of the case, and the requisite diversity was therefore
absent. See Mossman v. Higginson, 4 Dall. 12, 14 (1800).
On appeal, Atlas did not dispute the finding of no diversity
at the time of filing. It urged the Court of Appeals to disre-
gard this failure and reverse dismissal because the Mexican
partners had left the partnership in a transaction consum-
mated the month before trial began. Atlas argued that,
since diversity existed when the jury rendered its verdict,
dismissal was inappropriate. The Fifth Circuit agreed.
312 F. 3d 168, 174 (2002). It acknowledged the general rule
that, for purposes of determining the existence of diversity
1 Title 28 U. S. C. § 1332(a)(2) provides:
“The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum of $75,000, exclusive of
interest and costs, and is between . . .
“citizens of a State and citizens or subjects of a foreign state.”

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jurisdiction, the citizenship of the parties is to be determined
with reference to the facts as they existed at the time of
filing. Id., at 170. However, relying on our decision in Cat-
erpillar Inc. v. Lewis, 519 U. S. 61 (1996), it held that the
conclusiveness of citizenship at the time of filing was subject
to exception when the following conditions are satisfied:
“(1) [A]n action is filed or removed when constitutional
and/or statutory jurisdictional requirements are not
met, (2) neither the parties nor the judge raise the error
until after a jury verdict has been rendered, or a disposi-
tive ruling has been made by the court, and (3) before
the verdict is rendered, or ruling is issued, the jurisdic-
tional defect is cured.” 312 F. 3d, at 174.
The opinion strictly limited the exception as follows: “If at
any point prior to the verdict or ruling, the issue is raised,
the court must apply the general rule and dismiss regardless
of subsequent changes in citizenship.” Ibid.
The jurisdictional error in the present case not having
been identified until after the jury returned its verdict; and
the postfiling change in the composition of the partnership
having (in the Court’s view) cured the jurisdictional defect;
the Court reversed and remanded with instructions to the
District Court to enter judgment in favor of Atlas. Ibid.
We granted certiorari. 540 U. S. 944 (2003).
II
It has long been the case that “the jurisdiction of the court
depends upon the state of things at the time of the action
brought.” Mollan v. Torrance, 9 Wheat. 537, 539 (1824).
This time-of-filing rule is hornbook law (quite literally 2 )
2 See, e. g., J. Friedenthal, M. Kane, & A. Miller, Civil Procedure 27 (3d
ed. 1999); C. Wright & M. Kane, Law of Federal Courts 173 (6th ed. 2002).
See also 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure § 3608, p. 452 (1984).

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taught to first-year law students in any basic course
on federal civil procedure. It measures all challenges to
subject-matter jurisdiction premised upon diversity of citi-
zenship against the state of facts that existed at the time of
filing—whether the challenge be brought shortly after filing,
after the trial, or even for the first time on appeal. (Chal-
lenges to subject-matter jurisdiction can of course be raised
at any time prior to final judgment. See Capron v. Van
Noorden, 2 Cranch 126 (1804).)
We have adhered to the time-of-filing rule regardless of
the costs it imposes. For example, in Anderson v. Watt, 138
U. S. 694 (1891), two executors of an estate, claiming to be
New York citizens, had brought a diversity-based suit in fed-
eral court against defendants alleged to be Florida citizens.
When it later developed that two of the defendants were
New York citizens, the plaintiffs sought to save jurisdiction
by revoking the letters testamentary for one executor and
alleging that the remaining executor was in fact a British
citizen. The Court rejected this attempted postfiling sal-
vage operation, because at the time of filing the executors
included a New Yorker. Id., at 708. It dismissed the case
for want of jurisdiction, even though the case had been filed
about 51 ⁄ 2 years earlier, the trial court had entered a decree
ordering land to be sold 4 years earlier, the sale had been
made, exceptions had been filed and overruled, and the case
had come to the Court on appeal from the order confirming
the land sale. Id., at 698. Writing for the Court, Chief Jus-
tice Fuller adhered to the principle set forth in Conolly v.
Taylor, 2 Pet. 556, 565 (1829), that “jurisdiction depending
on the condition of the party is governed by that condition,
as it was at the commencement of the suit.” “[J]urisdic-
tion,” he reasoned, “could no more be given . . . by the
amendment than if a citizen of Florida had sued another in

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that court and subsequently sought to give it jurisdiction by
removing from the State.” 138 U. S., at 708.3
It is uncontested that application of the time-of-filing rule
to this case would require dismissal, but Atlas contends that
this Court “should accept the very limited exception created
by the Fifth Circuit to the time-of-filing principle.” Brief
for Respondents 2. The Fifth Circuit and Atlas rely on our
statement in Caterpillar, supra, at 75, that “[o]nce a diver-
sity case has been tried in federal court . . . considerations
of finality, efficiency, and economy become overwhelming.”
This statement unquestionably provided the ratio decidendi
in Caterpillar, but it did not augur a new approach to decid-
ing whether a jurisdictional defect has been cured.
Caterpillar broke no new ground, because the jurisdic-
tional defect it addressed had been cured by the dismissal of
the party that had destroyed diversity. That method of cur-
ing a jurisdictional defect had long been an exception to the
time-of-filing rule. “[T]he question always is, or should be,
when objection is taken to the jurisdiction of the court by
reason of the citizenship of some of the parties, whether . . .
they are indispensable parties, for if their interests are sev-
erable and a decree without prejudice to their rights may be
made, the jurisdiction of the court should be retained and
the suit dismissed as to them.” Horn v. Lockhart, 17 Wall.
570, 579 (1873). Federal Rule of Civil Procedure 21 provides
that “[p]arties may be dropped or added by order of the court
on motion of any party or of its own initiative at any stage
of the action and on such terms as are just.” By now, “it is
3 The dissent asserts that Anderson is “not altogether in tune with Cat-
erpillar and Newman-Green,” post, at 591, n. 7 (opinion of Ginsburg, J.),
but the cases can easily be harmonized. Anderson did not, as the dissent
suggests, refuse to give diversity-perfecting effect to the dismissal of an
independent severable party; it refused to give that effect to the alter-
ation of a coexecutorship into a lone executorship—much as we decline
to give diversity-perfecting effect to the alteration of a partnership
with diversity-destroying partners into a partnership without diversity-
destroying partners.

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well settled that Rule 21 invests district courts with author-
ity to allow a dispensable nondiverse party to be dropped
at any time, even after judgment has been rendered.”
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 832
(1989). Indeed, the Court held in Newman-Green that
courts of appeals also have the authority to cure a jurisdic-
tional defect by dismissing a dispensable nondiverse party.
Id., at 837.
Caterpillar involved an unremarkable application of this
established exception. Complete diversity had been lacking
at the time of removal to federal court, because one of the
plaintiffs shared Kentucky citizenship with one of the de-
fendants. Almost three years after the District Court de-
nied a motion to remand, but before trial, the diversity-
destroying defendant settled out of the case and was
dismissed. The case proceeded to a 6-day jury trial, result-
ing in judgment for the defendant, Caterpillar, against
Lewis. This Court unanimously held that the lack of com-
plete diversity at the time of removal did not require dis-
missal of the case.
The sum of Caterpillar’s jurisdictional analysis was an ap-
proving acknowledgment of Lewis’s admission that there
was “complete diversity, and therefore federal subject-
matter jurisdiction, at the time of trial and judgment.” 519
U. S., at 73. The failure to explain why this solved the prob-
lem was not an oversight, because there was nothing novel
to explain. The postsettlement dismissal of the diversity-
destroying defendant cured the jurisdictional defect just as
the dismissal of the diversity-destroying party had done in
Newman-Green. In both cases, the less-than-complete di-
versity which had subsisted throughout the action had been
converted to complete diversity between the remaining par-
ties to the final judgment. See also Horn, supra, at 579.
While recognizing that Caterpillar is “technically” distin-
guishable because the defect was cured by the dismissal of a
diversity-destroying party, the Fifth Circuit reasoned that

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“this factor was not at the heart of the Supreme Court’s
analysis . . . .” 312 F. 3d, at 172–173. The crux of the analy-
sis, according to the Fifth Circuit, was Caterpillar’s state-
ment that “[o]nce a diversity case has been tried in federal
court . . . considerations of finality, efficiency, and economy
become overwhelming.” 519 U. S., at 75. This was indeed
the crux of analysis in Caterpillar, but analysis of a different
issue. It related not to cure of the jurisdictional defect, but
to cure of a statutory defect, namely, failure to comply with
the requirement of the removal statute, 28 U. S. C. § 1441(a),
that there be complete diversity at the time of removal.4
The argument to which the statement was directed took as
its starting point that subject-matter jurisdiction had been
satisfied: “ultimate satisfaction of the subject-matter juris-
diction requirement ought not swallow up antecedent statu-
tory violations.” 519 U. S., at 74 (emphasis added). The re-
sulting holding of Caterpillar, therefore, is only that a
statutory defect—“Caterpillar’s failure to meet the § 1441(a)
requirement that the case be fit for federal adjudication at
the time the removal petition is filed,” id., at 73—did not
require dismissal once there was no longer any jurisdic-
tional defect.
III
To our knowledge, the Court has never approved a devia-
tion from the rule articulated by Chief Justice Marshall in
1829 that “[w]here there is no change of party, a jurisdiction
depending on the condition of the party is governed by that
condition, as it was at the commencement of the suit.” Con-
olly, 2 Pet., at 565 (emphasis added). Unless the Court is to
manufacture a brand-new exception to the time-of-filing rule,
4 Title 28 U. S. C. § 1441(a) provides, in relevant part:
“Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.”

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dismissal for lack of subject-matter jurisdiction is the only
option available in this case. The purported cure arose not
from a change in the parties to the action, but from a change
in the citizenship of a continuing party. Withdrawal of the
Mexican partners from Atlas did not change the fact that
Atlas, the single artificial entity created under Texas law,
remained a party to the action. True, the composition of
the partnership, and consequently its citizenship, changed.
But allowing a citizenship change to cure the jurisdictional
defect that existed at the time of filing would contravene the
principle articulated by Chief Justice Marshall in Conolly.5
We decline to do today what the Court has refused to do for
the past 175 years.
Apart from breaking with our longstanding precedent,
holding that “finality, efficiency, and judicial economy” can
justify suspension of the time-of-filing rule would create an
exception of indeterminate scope. The Court of Appeals
sought to cabin the exception with the statement that “[i]f
at any point prior to the verdict or ruling, the [absence of
diversity at the time of filing] is raised, the court must apply
the general rule and dismiss regardless of subsequent
5 The dissent acknowledges that “[t]he Court has long applied [Chief
Justice] Marshall’s time-of-filing rule categorically to postfiling changes
that otherwise would destroy diversity jurisdiction,” post, at 583–584, but
asserts that “[i]n contrast, the Court has not adhered to a similarly steady
rule for postfiling changes in the party lineup, alterations that perfect
previously defective statutory subject-matter jurisdiction,” post, at 584.
The authorities relied upon by the dissent do not call into question the
particular aspect of the time-of-filing rule that is at issue in this case—
the principle (quoted in text) that “[w]here there is no change of party, a
jurisdiction depending on the condition of the party is governed by that
condition, as it was at the commencement of the suit.” Conolly, 2 Pet.,
at 565 (emphasis added). The dissent identifies five cases in which the
Court permitted a postfiling change to cure a jurisdictional defect. Post,
at 584. Every one of them involved a change of party. The dissent does
not identify a single case in which the Court held that a single party’s
postfiling change of citizenship cured a previously existing jurisdictional
defect.

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Opinion of the Court
changes in citizenship.” 312 F. 3d, at 174. This limitation
is unsound in principle and certain to be ignored in practice.
It is unsound in principle because there is no basis in rea-
son or logic to dismiss preverdict if in fact the change in
citizenship has eliminated the jurisdictional defect. Either
the court has jurisdiction at the time the defect is identified
(because the parties are diverse at that time) or it does not
(because the postfiling citizenship change is irrelevant). If
the former, then dismissal is inappropriate; if the latter, then
retention of jurisdiction postverdict is inappropriate.
Only two escapes from this dilemma come to mind, neither
of which is satisfactory. First, one might say that it is not
any change in party citizenship that cures the jurisdictional
defect, but only a change that remains unnoticed until the
end of trial. That is not so much a logical explanation as a
restatement of the illogic that produces the dilemma. There
is no conceivable reason why the jurisdictional deficiency
which continues despite the citizenship change should sud-
denly disappear upon the rendering of a verdict. Second,
one might say that there never was a cure, but that the party
who failed to object before the end of trial forfeited his objec-
tion. This is logical enough, but comes up against the estab-
lished principle, reaffirmed earlier this Term, that “a court’s
subject-matter jurisdiction cannot be expanded to account
for the parties’ litigation conduct.” Kontrick v. Ryan, 540
U. S. 443, 456 (2004). “A litigant generally may raise a
court’s lack of subject-matter jurisdiction at any time in the
same civil action, even initially at the highest appellate in-
stance.” Id., at 455. Because the Fifth Circuit’s attempted
limitation upon its new exception makes a casualty either of
logic or of this Court’s jurisprudence, there is no principled
way to defend it.
And principled or not, the Fifth Circuit’s artificial limita-
tion is sure to be discarded in practice. Only 8% of diversity
cases concluded in 2003 actually went to trial, and the median
time from filing to trial disposition was nearly two years.

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See Administrative Office of the United States Courts, Sta-
tistics on Diversity Filings and Terminations in District
Courts for Calendar Year 2003 (on file with the Clerk of
Court). In such a litigation environment, an approach to ju-
risdiction that focuses on efficiency and judicial economy can-
not possibly be held to the line drawn by the Court of Ap-
peals. As Judge Garza observed in his dissent:
“[T]here is no difference in efficiency terms between the
jury verdict and, for example, the moment at which the
jury retires. Nor, for that matter, is there a large dif-
ference between the verdict and mid-way through the
trial. . . . Indeed, in complicated cases requiring a great
deal of discovery, the parties and the court often expend
tremendous resources long before the case goes to trial.”
312 F. 3d, at 177.
IV
The dissenting opinion rests on two principal propositions:
(1) the jurisdictional defect in this case was cured by a
change in the composition of the partnership; and (2) refusing
to recognize an exception to the time-of-filing rule in this
case wastes judicial resources, while creating an exception
does not. We discuss each in turn.
A
Unlike the dissent, our opinion does not turn on whether
the jurisdictional defect here contained at least “minimal
diversity.” 6 Regardless of how one characterizes the ac-
6 The answer to the “minimal diversity” question is not as straight-
forward as the dissent’s analysis suggests. We understand “minimal di-
versity” to mean the existence of at least one party who is diverse in
citizenship from one party on the other side of the case, even though the
extraconstitutional “complete diversity” required by our cases is lacking.
It is possible, though far from clear, that one can have opposing parties in
a two-party case who are cocitizens, and yet have minimal Article III
jurisdiction because of the multiple citizenship of one of the parties. Al-
though the Court has previously said that minimal diversity requires “two

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knowledged jurisdictional defect, it was never cured. The
only two ways in which one could conclude that it had been
cured would be either (1) to acknowledge that a party’s post-
filing change of citizenship can cure a time-of-filing jurisdic-
tional defect, or (2) to treat a change in the composition of a
partnership like a change in the parties to the action. The
Court has never, to our knowledge, done the former; and not
even the dissent suggests that it ought to do so in this case.7
The dissent diverges from our analysis by adopting the latter
approach, stating that “this case seems . . . indistinguishable
from one in which there is a change in the parties to the
action.” Post, at 591 (internal quotation marks omitted).
This equation of a dropped partner with a dropped party
is flatly inconsistent with Carden. The dissent in Carden
sought to apply a “real party to the controversy” approach
to determine which partners counted for purposes of juris-
dictional analysis. The Carden majority rejected that ap-
adverse parties [who] are not co-citizens,” State Farm Fire & Casualty
Co. v. Tashire, 386 U. S. 523, 531 (1967), the Court did not have before it a
multiple-citizenship situation.
The dissent contends that the existence of minimal diversity was clear
because the rule of Carden v. Arkoma Associates, 494 U. S. 185 (1990), is
not required by the Constitution. Post, at 588–590. But neither is the
rule that a corporation is “a citizen of any State by which it has been
incorporated and of the State where it has its principal place of business.”
28 U. S. C. § 1332(c)(1). We do not understand the inquiry into minimal
diversity to proceed by hypothetically rewriting, to whatever the Consti-
tution might allow that would support Article III jurisdiction in the partic-
ular case, all laws bearing upon the diversity question. Whether the
Constitution requires it or not, Carden is the subconstitutional rule by
which we determine the citizenship of a partnership—and in this case it
leads to the conclusion that there were no opposing parties who were
not cocitizens.
7 The dissent appears to leave open the possibility that this line could
be crossed in a future case, contrasting Caterpillar Inc. v. Lewis, 519 U. S.
61 (1996), not with all cases involving a party’s change of citizenship, but
with the polar extreme of “a plaintiff who moves to another State to create
diversity not even minimally present when the complaint was filed,”
post, at 590.

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proach, reasoning that “[t]he question presented today is not
which of various parties before the Court should be consid-
ered for purposes of determining whether there is complete
diversity of citizenship . . . . There are not . . . multiple
respondents before the Court, but only one: the artificial en-
tity called Arkoma Associates, a limited partnership.” 494
U. S., at 188, n. 1. Today’s dissent counters that “[w]hile a
partnership may be characterized as a single artificial entity,
a district court determining whether diversity jurisdiction
exists looks to the citizenship of the several persons compos-
ing [the entity].” Post, at 591, n. 8 (internal quotation marks
and citations omitted). It is true that the court “looks to”
the citizenship of the several persons composing the entity,
but it does so for the purpose of determining the citizenship
of the entity that is a party, not to determine which citizens
who compose the entity are to be treated as parties. See
Carden, 494 U. S., at 188, n. 1 (“[W]hat we must decide is the
. . . question of how the citizenship of that single artificial
entity is to be determined”); id., at 195 (“[W]e reject the
contention that to determine, for diversity purposes, the citi-
zenship of an artificial entity, the court may consult the citi-
zenship of less than all of the entity’s members”).8
There was from the beginning of this action a single plain-
tiff (Atlas), which, under Carden, was not diverse from the
sole defendant (Dataflux). Thus, this case fails to present
“two adverse parties [who] are not co-citizens.” State Farm
Fire & Casualty Co. v. Tashire, 386 U. S. 523, 531 (1967).
Contrary to the dissent’s characterization, then, this is not a
8 These statements from Carden rebut the dissent’s assertion that “an
association whose citizenship, for diversity purposes, is determined by ag-
gregating the citizenships of each of its members” could “[w]ith equal plau-
sibility . . . be characterized as an ‘aggregation’ composed of its members,
or an ‘entity’ comprising its members.” Post, at 590, n. 6. We think it
evident that Carden decisively adopted an understanding of the limited
partnership as an “entity,” rather than an “aggregation,” for purposes of
diversity jurisdiction. See 494 U. S., at 188, n. 1.

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case like Caterpillar or Newman-Green in which “party
lineup changes . . . simply trimmed the litigation down to
an ever-present core that met the statutory requirement.”
Post, at 591. Rather, this is a case in which a single party
changed its citizenship by changing its internal composition.
The incompatibility with prior law of the dissent’s attempt
to treat a change in partners like a change in parties is re-
vealed by a curious anomaly: It would produce a case unlike
every other case in which dropping a party has cured a ju-
risdictional defect, in that no judicial action (such as grant-
ing a motion to dismiss) was necessary to get the jurisdic-
tional spoilers out of the case. Indeed, judicial action to
that end was not even possible: The court could hardly
have “dismissed” the partners from the partnership to save
jurisdiction.9
B
We now turn from consideration of the conceptual diffi-
culties with the dissent’s disposition to consideration of its
practical consequences. The time-of-filing rule is what it is
precisely because the facts determining jurisdiction are sub-
ject to change, and because constant litigation in response to
that change would be wasteful. The dissent would have it
that the time-of-filing rule applies to establish that a court
has jurisdiction (and to protect that jurisdiction from later
destruction), but does not apply to establish that a court
lacks jurisdiction (and to prevent postfiling changes that per-
fect jurisdiction). Post, at 583–584. But whether destruc-
tion or perfection of jurisdiction is at issue, the policy goal
9 An additional anomaly, under the particular facts of the present case,
is that the two individual Mexican partners, whom the dissent treats like
parties for purposes of enabling their withdrawal to perfect jurisdiction,
were brought into the litigation personally by the court’s granting of Da-
taflux’s motion to add them as parties for purposes of Dataflux’s counter-
claim. The motion was made and granted under Federal Rule of Civil
Procedure 13(h), which applies only to “[p]ersons other than those made
parties to the original action.” (Emphasis added.)

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of minimizing litigation over jurisdiction is thwarted when-
ever a new exception to the time-of-filing rule is announced,
arousing hopes of further new exceptions in the future.
Cf. Dretke v. Haley, ante, at 394–395 (recognizing that the
creation of exceptions to judge-made procedural rules will
enmesh the federal courts in litigation testing the boundaries
of each new exception). That litigation-fostering effect
would be particularly strong for a new exception derived
from such an expandable concept as the “efficiency” rationale
relied upon by the dissent.
The dissent argues that it is essential to uphold jurisdic-
tion in this and similar cases because dismissal followed by
refiling condemns the parties to “an almost certain replay of
the case, with, in all likelihood, the same ultimate outcome.”
Post, at 595. But if the parties expect “the same ultimate
outcome,” they will not waste time and resources slogging
through a new trial. They will settle, with the jury’s prior
verdict supplying a range for the award. Indeed, settle-
ment instead of retrial will probably occur even if the parties
do not expect the same ultimate outcome. When the stakes
remain the same and the players have been shown each oth-
er’s cards, they will not likely play the hand all the way
through just for the sake of the game. And finally, even if
the parties run the case through complete “relitigation in the
very same District Court in which it was first filed in 1997,”
post, at 598, the “waste” will not be great. Having been
through three years of discovery and pretrial motions in the
current case, the parties would most likely proceed promptly
to trial.
Looked at in its overall effect, and not merely in its appli-
cation to the sunk costs of the present case, it is the dissent’s
proposed rule that is wasteful. Absent uncertainty about
jurisdiction (which the dissent’s readiness to change settled
law would preserve for the future), the obvious course, for a
litigant whose suit was dismissed as Atlas’s was, would have
been immediately to file a new action. That is in fact what

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Ginsburg, J., dissenting
Atlas did, though it later dismissed the new case without
prejudice. Had that second suit been pursued instead of
this one, there is little doubt that the dispute would have
been resolved on the merits by now. Putting aside the time
that has passed between the Fifth Circuit’s decision and
today, there were two years of wasted time between dis-
missal of the action and the Fifth Circuit’s reversal of that
dismissal—time that the parties could have spent litigating
the merits (or engaging in serious settlement talks) instead
of litigating jurisdiction.
Atlas and Dataflux have thus far litigated this case for
more than 61 ⁄ 2 years, including 31 ⁄ 2 years over a conceded ju-
risdictional defect. Compared with the one month it took
the Magistrate Judge to apply the time-of-filing rule and
Carden when the jurisdictional problem was brought to her
attention, this waste counsels strongly against any course
that would impair the certainty of our jurisdictional rules
and thereby encourage similar jurisdictional litigation.
* * *
We decline to endorse a new exception to a time-of-filing
rule that has a pedigree of almost two centuries. Uncer-
tainty regarding the question of jurisdiction is particularly
undesirable, and collateral litigation on the point particularly
wasteful. The stability provided by our time-tested rule
weighs heavily against the approval of any new deviation.
The judgment of the Fifth Circuit is reversed.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens, Jus-
tice Souter, and Justice Breyer join, dissenting.
When this lawsuit was filed in the United States District
Court for the Southern District of Texas in 1997, diversity
of citizenship was incomplete among the adverse parties: The
plaintiff partnership, Atlas Global Group (Atlas), had five
members, including a general partner of Delaware citizen-
ship and two limited partners of Mexican citizenship, App.

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Ginsburg, J., dissenting
98a; the defendant, Grupo Dataflux (Dataflux), was a Mexi-
can corporation with its principal place of business in Mexico,
id., at 18a. In a transaction completed in September 2000
unrelated to this lawsuit, all Mexican-citizen partners with-
drew from Atlas. Id., at 98a, 122a–123a. Thus, before trial
commenced in October 2000, complete diversity existed.
Only after the jury returned a verdict favorable to Atlas did
Dataflux, by moving to dismiss the case, draw the initial ju-
risdictional flaw to the District Court’s attention. The
Court today holds that the initial flaw “still burden[s] and
run[s] with the case,” Caterpillar Inc. v. Lewis, 519 U. S. 61,
70 (1996); see ante, at 572–576; consequently, the entire trial
and jury verdict must be nullified. In my view, the initial
defect here—the original absence of complete diversity—“is
not fatal to the ensuing adjudication.” Caterpillar, 519
U. S., at 64. In accord with the Court of Appeals for the
Fifth Circuit, I would leave intact the results of the six-day
trial between completely diverse citizens, and would not ex-
pose Atlas and the courts to the “exorbitant cost” of relitiga-
tion, id., at 77.
I
Chief Justice Marshall, in a pathmarking 1824 opinion,
Mollan v. Torrance, 9 Wheat. 537, 539, instructed “that the
jurisdiction of the court depends upon the state of things at
the time of the action brought, and that, after vesting, it
cannot be ousted by subsequent events.” He did not extract
this practical time-of-filing rule from any constitutional or
statutory text. In contrast, 18 years earlier, Marshall had
derived the complete-diversity rule from the text of the 1789
Judiciary Act, and so stated in Strawbridge v. Curtiss, 3
Cranch 267 (1806). Compare State Farm Fire & Casualty
Co. v. Tashire, 386 U. S. 523, 530–531 (1967) (complete-
diversity rule is statutory), with 13B C. Wright, A. Miller, &
E. Cooper, Federal Practice and Procedure § 3608, p. 452 (2d
ed. 1984) (time-of-filing rule “represents a policy decision”).
The Court has long applied Marshall’s time-of-filing rule
categorically to postfiling changes that otherwise would de-

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584 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
stroy diversity jurisdiction. See, e. g., Gwaltney of Smith-
field, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U. S. 49,
69 (1987) (Scalia, J., concurring in part and concurring in
judgment); St. Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U. S. 283, 289–290 (1938); Mollan, 9 Wheat., at 539–540.
I do not question this consistently applied, altogether sensi-
ble refusal to allow a losing party, after summary judgment
or an adverse verdict, to assert that all bets are off on the
ground that jurisdiction, originally present, was thereafter
divested.
In contrast, the Court has not adhered to a similarly
steady rule for postfiling party lineup alterations that per-
fect previously defective statutory subject-matter jurisdic-
tion. Compare Keene Corp. v. United States, 508 U. S. 200,
207–208 (1993) (dismissing suit); Minneapolis & St. Louis R.
Co. v. Peoria & Pekin Union R. Co., 270 U. S. 580, 586 (1926)
(same); Anderson v. Watt, 138 U. S. 694, 707–708 (1891)
(same), with Caterpillar, 519 U. S., at 64 (not dismissing
suit); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826,
837–838 (1989) (same); Mullaney v. Anderson, 342 U. S.
415, 416–417 (1952) (same); Horn v. Lockhart, 17 Wall.
570, 579 (1873) (same); Conolly v. Taylor, 2 Pet. 556, 565
(1829) (same). Instead, the Court has recognized that “un-
timely compliance,” Lexecon Inc. v. Milberg Weiss Bershad
Hynes & Lerach, 523 U. S. 26, 43 (1998), with the complete-
diversity rule announced in Strawbridge can operate to pre-
serve an adjudication where (1) neither the parties nor the
court raised the time-of-filing flaw until after resolution of
the case by jury verdict or dispositive court ruling, and
(2) prior to that resolution, the jurisdictional defect was
cured. See Caterpillar, 519 U. S., at 64.
II
A
To state the background of this case in fuller detail, in
November 1997, respondent Atlas, a limited partnership,

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585 Cite as: 541 U. S. 567 (2004)
Ginsburg, J., dissenting
which then included two Mexican-citizen limited partners
and a Delaware-citizen general partner, 1 commenced a
federal-court action against Dataflux, a Mexican corporation
with its principal place of business in Mexico. 312 F. 3d 168,
169–170 (CA5 2002); App. 18a–19a, 98a; Brief for Petitioner
3. Seeking recovery on contract and quantum meruit
claims, Atlas erroneously asserted diversity jurisdiction
under 28 U. S. C. § 1332(a). 312 F. 3d, at 169–170; App. 18a–
19a.2 Dataflux’s answer admitted diversity jurisdiction even
though, in fact, complete diversity did not exist given the
altogether evident Mexican citizenship of both Dataflux and
1 At the time of filing, Atlas comprised (1) general partner Bahia Man-
agement, L. L. C., a Texas limited liability company (LLC), which included
Mexican-citizen members; (2) general partner Capital Financial Partner,
Inc., a Delaware corporation; (3) limited partner HIL Financial Holdings,
L. P., a limited partnership with Texas and Delaware citizenship;
(4) limited partner Francisco Llamosa, a Mexican citizen; and (5) limited
partner Oscar Robles, another Mexican citizen. Brief for Petitioner 3;
App. 98a. At least arguably, the general partner Bahia Management, like
the two limited partners of Mexican citizenship, initially spoiled diversity.
Although the Court has never ruled on the issue, Courts of Appeals have
held the citizenship of each member of an LLC counts for diversity pur-
poses. See, e. g., GMAC Commercial Credit LLC v. Dillard Dept. Stores,
357 F. 3d 827, 829 (CA8 2004); Cosgrove v. Bartolotta, 150 F. 3d 729, 731
(CA7 1998). Bahia withdrew from Atlas at the same time as the two
Mexican-citizen limited partners withdrew. App. 98a.
2 Section 1332(a) provides:
“(a) The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between—
“(1) citizens of different States;
“(2) citizens of a State and citizens or subjects of a foreign state;
“(3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties; and
“(4) a foreign state, defined in section 1603(a) of this title, as plaintiff
and citizens of a State or of different States.
“For the purposes of this section, section 1335, and section 1441, an alien
admitted to the United States for permanent residence shall be deemed a
citizen of the State in which such alien is domiciled.”

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586 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
two of Atlas’ limited partners. 312 F. 3d, at 170; App. 35a;
see Carden v. Arkoma Associates, 494 U. S. 185, 195–196
(1990) (federal court must look to citizenship of partnership’s
limited, as well as its general, partners to determine whether
there is complete diversity). In addition, one of Atlas’ gen-
eral partners at least arguably ranked as a Mexican citizen.
See supra, at 585, n. 1.
In September 2000, several weeks before trial, and unre-
lated to the claims in suit, Atlas completed a transaction in
which all Mexican-citizen partners withdrew from the part-
nership. App. 14a, 122a–123a, 126a–128a; Brief for Appel-
lants in No. 01–20245 (CA5), p. 7. After that reorganiza-
tion, it is not disputed, complete diversity existed between
the adverse parties. Brief for Petitioner 2; Brief for Re-
spondents 2.
Prevailing at a six-day trial, Atlas gained a jury verdict of
$750,000. 312 F. 3d, at 170. Dataflux then promptly moved
to dismiss the action for lack of subject-matter jurisdiction,
raising, for the first time, the original, but pretrial-cured,
absence of complete diversity. App. 42a–49a. The District
Court, which had not yet entered judgment on the jury’s
verdict, granted Dataflux’s motion; simultaneously, the court
“ordered that the statute of limitations for the claims alleged
in this case [be] stayed from November 18, 1997, the date
this case was filed, until ten days after the entry of this order
[December 6, 2000], to allow plaintiff to refile this case in the
appropriate forum.” App. to Pet. for Cert. 20a–22a (capital-
ization in original omitted). The Court of Appeals for the
Fifth Circuit reversed the District Court’s judgment and
remanded the case to that court. 312 F. 3d, at 173–174.
Viewing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S.
826 (1989), as “instructive,” and Caterpillar Inc. v. Lewis,
519 U. S. 61 (1996), as “compel[ling],” the Court of Appeals
found it unnecessary and inappropriate to “erase the result
of [the trial and verdict] by requiring [the parties] to reliti-
gate their claims.” 312 F. 3d, at 171–174.

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Ginsburg, J., dissenting
Caterpillar and Newman-Green are indeed the decisions
most closely on point. In Caterpillar, plaintiff Lewis, a
Kentucky citizen, filed a civil action in state court against
two corporate defendants—Caterpillar Inc., a citizen of both
Delaware and Illinois, and Whayne Supply Company, a Ken-
tucky citizen. 519 U. S., at 64–65. Several months later,
Liberty Mutual, a Massachusetts corporation, intervened as
a plaintiff, asserting claims against both defendants. Id.,
at 65. After Lewis settled with Whayne Supply, Caterpillar
filed a notice of removal. Ibid. Lewis moved to remand
the case to the state court on the ground that Liberty Mutual
had not settled its claim against Whayne Supply, and that
Whayne Supply’s continuing presence as a defendant in the
lawsuit defeated complete diversity. Id., at 65–66. The
District Court denied Lewis’ motion to remand. Id., at 66.
Liberty Mutual and Whayne Supply subsequently settled,
and the District Court dismissed Whayne Supply from the
suit. Ibid.
The case proceeded to a jury trial, which yielded a verdict
and corresponding judgment for Caterpillar. Id., at 66–67.
On appeal to the Court of Appeals for the Sixth Circuit,
Lewis prevailed. Id., at 67. Observing that, at the time of
removal, diversity was incomplete, the appellate court ac-
cepted Lewis’ argument that dismissal of the case for want
of subject-matter jurisdiction was obligatory. Ibid. In
turn, this Court reversed the Court of Appeals’ judgment:
“[A] district court’s error in failing to remand a case improp-
erly removed,” this Court held unanimously, “is not fatal to
the ensuing adjudication if federal jurisdictional require-
ments are met at the time judgment is entered.” Id., at 64.
Newman-Green concerned a state-law action filed in Fed-
eral District Court by an Illinois corporation against a Vene-
zuelan corporation, four Venezuelan citizens, and a United
States citizen domiciled in Venezuela. 490 U. S., at 828.
After the District Court granted partial summary judg-
ment for the defendants, the plaintiff appealed. Ibid. Sua

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588 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
sponte, the Court of Appeals for the Seventh Circuit inquired
into the basis for federal jurisdiction over the case, and con-
cluded that the presence of the Venezuela-domiciled United
States citizen spoiled complete diversity. Id., at 828–829.3
To cure the defect, the three-judge panel granted the plain-
tiff ’s motion to drop the nondiverse party, citing Federal
Rule of Civil Procedure 21. Newman-Green, 490 U. S., at
829.4 But the full Seventh Circuit, empaneled en banc, con-
cluded that an appellate court lacks such authority. Id., at
830–831. This Court reversed that determination. Fed-
eral appellate courts, the Court held, “posses[s] the authority
to grant motions to dismiss dispensable nondiverse parties.”
Id., at 836.5
As in Caterpillar and Newman-Green, minimal diversity
within Article III’s compass existed in this case from the
start. See U. S. Const., Art. III, § 2, cl. 1 (“The judicial
Power shall extend to all Cases . . . between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.”);
State Farm Fire & Casualty Co., 386 U. S., at 531 (“Article
III poses no obstacle to the legislative extension of federal
jurisdiction, founded on diversity, so long as any two adverse
parties are not co-citizens.”). The jurisdictional flaw—in
Caterpillar, Newman-Green, and this case—was the absence
of complete diversity, required by the governing statute,
3 A United States citizen with no domicil in any State ranks as a state-
less person for purposes of 28 U. S. C. § 1332(a)(3), providing for suits be-
tween “citizens of different States and in which citizens or subjects of a
foreign state are additional parties,” and § 1332(a)(2), authorizing federal
suit when “citizens of a State” sue “citizens or subjects of a foreign state.”
See Newman-Green, 490 U. S., at 828.
4 Rule 21, governing proceedings in district courts, provides in relevant
part: “Parties may be dropped or added by order of the court on motion
of any party or of its own initiative at any stage of the action and on such
terms as are just.”
5 After our decision, the Seventh Circuit dismissed the nondiverse de-
fendant and remanded the case to the District Court. Newman-Green,
Inc. v. Alfonzo-Larrain, 734 F. Supp. 1470, 1472 (ND Ill. 1990).

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Ginsburg, J., dissenting
§ 1332(a), when the action commenced, a flaw eliminated at a
later stage of the proceedings. Cf. ante, at 573 (describing
Caterpillar and Newman-Green as cases in which “the less-
than-complete diversity which had subsisted throughout the
action had been converted to complete diversity between the
remaining parties to the final judgment”).
It bears clarification why this case, in common with Cater-
pillar and Newman-Green, met the constitutional require-
ment of minimal diversity at the onset of the litigation.
True, Atlas’ case involves a partnership, while the diversity
spoiler in Caterpillar was a corporation and in Newman-
Green, an individual. See supra, at 587–588 and this page.
In Carden v. Arkoma Associates, this Court held that, in
determining a partnership’s qualification to sue or be sued
under § 1332, the citizenship of each partner, whether gen-
eral or limited, must be attributed to the partnership. See
494 U. S., at 195–196.
Notably, however, the Court did not suggest in Carden
that minimal diversity, which is adequate for Article III pur-
poses, would be absent when some, but not all, partners com-
posing the “single artificial entity,” id., at 188, n. 1, share
the opposing party’s citizenship. To the contrary, the Court
emphasized in Carden that Congress could, “by legislation,”
determine which of the “wide assortment of artificial entities
possessing different powers and characteristics . . . is entitled
to be considered a ‘citizen’ for diversity purposes, and which
of their members’ citizenship is to be consulted.” Id., at 197.
Congress would be disarmed from making such determina-
tions—for example, from legislating that only the citizenship
of general partners counts for § 1332 purposes—if Article III
itself commanded that each partner’s citizenship, limited and
general partner’s alike, inescapably adheres to the partner-
ship entity. See ibid.; cf. Steelworkers v. R. H. Bouligny,
Inc., 382 U. S. 145, 153 (1965) (assimilating unincorporated
labor unions to the status of corporations for diversity
purposes, instead of counting each member’s citizenship,

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590 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
is a matter “suited to the legislative and not the judicial
branch”). Just as Article III did not dictate the Carden de-
cision, so the question here is plainly subconstitutional in
character.
B
Petitioner Dataflux maintains, and the Court agrees, see
ante, at 573–574, that this case is not properly bracketed
with Caterpillar, where the subtraction of a party yielded
complete diversity; instead, according to Dataflux, this case
should be aligned with those in which an individual plaintiff
initially shared citizenship with a defendant, and then, post-
commencement of the litigation, moved to another State.
See Brief for Petitioner 12–14, and n. 9, 23–24; Tr. of Oral
Arg. 8–11. In my view, this case ranks with Caterpillar and
is not equivalent to the case of a plaintiff who moves to an-
other State to create diversity not even minimally present
when the complaint was filed.
It has long been clear that “if a citizen sue[d] a citizen of
the same state, he [could not] give jurisdiction by removing
himself, and becoming a citizen of a different state.” Con-
olly, 2 Pet., at 565.6 When that sole plaintiff files suit in
federal court, there is no semblance of Article III diversity;
his move to another State manufactures diversity of citizen-
ship that did not exist even minimally at the outset. Cater-
pillar and Newman-Green, by contrast, involved parties who
were minimally, but not completely, diverse at the time
federal-court proceedings began. Caterpillar, 519 U. S., at
6 In Conolly, a party “was struck out of the bill before the cause was
brought before the court.” 2 Pet., at 564. Since Conolly, the Court has
addressed the time-of-filing rule in a variety of cases in which the party
lineup changed during the pendency of the litigation. See supra, at 584;
ante, at 575, n. 5. The Court, however, has not previously ruled on a case
resembling the controversy at hand, i. e., one involving an association
whose citizenship, for diversity purposes, is determined by aggregating
the citizenships of each of its members. With equal plausibility, such an
association could be characterized as an “aggregation” composed of its
members, or an “entity” comprising its members.

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Ginsburg, J., dissenting
64–65; Newman-Green, 490 U. S., at 828; supra, at 587–589.
The postcommencement party lineup changes in Caterpillar
and Newman-Green simply trimmed the litigation down to
an ever-present core that met the statutory requirement.7
The same holds true for Atlas. No partner moved. In-
stead, those that spoiled statutory diversity dropped out of
the case as did the nondiverse parties in Caterpillar and
Newman-Green. See supra, at 587–589. In essence, then,
this case seems to me indistinguishable from one in which
there is “a change in the parties to the action.” Ante, at
575.8 As the Court correctly states, the crux of our dis-
agreement lies in whether to “treat a change in the composi-
tion of a partnership like a change in the parties to the ac-
tion.” Ante, at 578. In common with Dataflux, the Court
draws no distinction between an individual plaintiff who
changes her citizenship and an enterprise composed of di-
verse persons, like Atlas, from which one or more original
7 Anderson v. Watt, 138 U. S. 694 (1891), see ante, at 571–572, is not
altogether in tune with Caterpillar and Newman-Green. In Anderson,
coexecutors sued for the benefit of an estate. 138 U. S., at 703. One
of the coexecutors, it turned out, shared common citizenship with two of
the defendants. To salvage the adjudication, the nondiverse coexecutor
sought to withdraw both as executor and as plaintiff, but the Court de-
clined to give effect to the postfiling change in the party lineup. Id.,
at 708. The Court would harmonize Anderson with Caterpillar and
Newman-Green by attributing entity, rather than aggregate, status to the
Anderson coexecutors. Ante, at 572, n. 3. But that characterization is
hardly preordained. If, as it seems to me, either characterization would
be plausible, Caterpillar and Newman-Green suggest that the one pre-
serving the adjudication ought to hold sway.
8 While a partnership may be characterized as a “single artificial entity,”
Carden v. Arkoma Associates, 494 U. S. 185, 188, n. 1 (1990), a district
court determining whether diversity jurisdiction exists looks “to the citi-
zenship of the several persons composing [the entity],” Great Southern
Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 456 (1900). I. e., the district
court looks to the citizenship of each general and limited partner, just as
in multiparty litigation the court looks to the citizenship of each litigant
joined on the same side. See supra, at 585–586.

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Ginsburg, J., dissenting
members exit. See ante, at 575 (“The purported cure [in
this case] arose not from a change in the parties to the action,
but from a change in the citizenship of a continuing party.”).
Resisting that far-from-inevitable alig nment, I would
bracket the multimember enterprise with partially changed
membership together with multiparty litigation from which
some of the originally joined parties drop. I would do so
on the ground that in procedural rulings generally, even on
questions of a court’s adjudicatory authority in particular,
salvage operations are ordinarily preferable to the wreck-
ing ball.
C
Petitioner Dataflux sees Caterpillar as a ruling limited to
removal cases, and Newman-Green as limited to court-
ordered dismissals of nondiverse parties. See 312 F. 3d, at
173–174; Brief for Petitioner 23, 26–27; Reply Brief for Peti-
tioner 11; Tr. of Oral Arg. 15–16. True, the court’s attention
may be attracted to the jurisdictional question by a motion
to remand a removed case or a motion to drop a party. But,
as the Fifth Circuit observed, “the principle of these cases
is [not] limited to only the exact same procedural scenarios.”
312 F. 3d, at 173. It would be odd, indeed, to hold, as Da-
taflux’s argument suggests, that jurisdictional flaws fatal to
original jurisdiction are nonetheless tolerable when removal
jurisdiction is exercised. Removal jurisdiction, after all, is
totally dependent on satisfaction of the requirements for
original jurisdiction. See 28 U. S. C. § 1441(a) (“any civil ac-
tion brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed
by the defendant or the defendants, to [a] district court of
the United States”). The “considerations of finality, effi-
ciency, and economy” central to the Caterpillar Court’s
treatment of a failure to satisfy “the [complete-diversity] re-
quirement of the removal statute, 28 U. S. C. § 1441(a),” ante,
at 574 (internal quotation marks omitted), have equal force
in appraising the “statutory defect” here, ibid. (emphasis in

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593 Cite as: 541 U. S. 567 (2004)
Ginsburg, J., dissenting
original), i. e., Atlas’ failure initially to satisfy the complete-
diversity requirement of § 1332(a).
Moreover, by whatever route a case arrives in federal
court, it is the obligation of both district court and counsel
to be alert to jurisdictional requirements. See, e. g., Bender
v. Williamsport Area School Dist., 475 U. S. 534, 541 (1986)
(“every federal appellate court has a special obligation to sat-
isfy itself not only of its own jurisdiction, but also that of the
lower courts in a cause under review, even though the parties
are prepared to concede it” (quoting Mitchell v. Maurer, 293
U. S. 237, 244 (1934))); United Republic Ins. Co., in Receiver-
ship v. Chase Manhattan Bank, 315 F. 3d 168, 170–171 (CA2
2003) (“We have . . . urged counsel and district courts to treat
subject matter jurisdiction as a threshold issue for resolu-
tion . . . .”); United States v. Southern California Edison
Co., 300 F. Supp. 2d 964, 972 (ED Cal. 2004) (district courts
have an “independent obligation to address [subject-matter
jurisdiction] sua sponte” (internal quotation marks omit-
ted)); Trawick v. Asbury MS Gray-Daniels, LLC, 244
F. Supp. 2d 697, 699 (SD Miss. 2003) (criticizing counsel for
failing to do the “minimal amount of research” that would
have revealed the absence of subject-matter jurisdiction).
But cf. ante, at 580 (time-of-filing rule should be rigidly ap-
plied when “no judicial action . . . was necessary to get the
jurisdictional spoilers out of the case”). That obligation is
equally applicable to cases initially filed in federal court and
cases removed from state court to federal court.
In short, the Fifth Circuit correctly comprehended the es-
sential teaching of Caterpillar and Newman-Green: The gen-
erally applicable time-of-filing rule is displaced when (1) a
“jurisdictional requiremen[t] [is] not met, (2) neither the par-
ties nor the judge raise the error until after a jury verdict
has been rendered, or a dispositive ruling [typically, a grant
of summary judgment] has been made by the court, and
(3) before the verdict is rendered, or [the dispositive] ruling

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Ginsburg, J., dissenting
is issued, the jurisdictional defect is cured.” 312 F. 3d, at
174.9
D
The “considerations of finality, efficiency, and economy” the
Court found “overwhelming” in Caterpillar and Newman-
Green have undiluted application here. Caterpillar, 519
U. S., at 75; see Newman-Green, 490 U. S., at 836–837. See
also Friends of Earth, Inc. v. Laidlaw Environmental Serv-
ices (TOC), Inc., 528 U. S. 167, 191–192, and n. 5 (2000) (not-
ing stricter approach to standing than to mootness in view
of “sunk costs” once a “case has been brought and litigated”).
In Newman-Green, this Court observed that rigid insistence
on the time-of-filing rule, rather than allowing elimination of
9 According to the majority, it would be “unsound in principle and certain
to be ignored in practice” to decline to apply the time-of-filing rule only
in those cases where the flaw is drawn to a court’s attention after a full
adjudication of the case, whether through trial or by a dispositive court
ruling. Ante, at 575–576. Declining to apply the time-of-filing rule only
in those cases, the Court suggests, can be justified only on the theory that
“the party who failed to object before the end of trial [or dispositive court
ruling] forfeited his objection.” Ante, at 576 (citing Kontrick v. Ryan,
540 U. S. 443, 456 (2004)). The time-of-filing rule, however, is a court-
created rule, see supra, at 583; it is therefore incumbent on the Court to
define the contours of that rule’s application. The Fifth Circuit’s decision
rested not on a forfeiture theory; rather, the decision accurately reflected
the judicial economy underpinnings of the time-of-filing rule. True, as
the Court observes, judicial economy concerns might be pressing even
when a case is not fully adjudicated through trial or summary pretrial
disposition. See ante, at 576–577. When a district court has so fully
adjudicated the case, however, there can be no doubt that the “sunk costs
to the judicial system,” Friends of Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 528 U. S. 167, 192, n. 5 (2000), have become “over-
whelming,” Caterpillar Inc. v. Lewis, 519 U. S. 61, 75 (1996). That the
rule advanced by the Court of Appeals is underinclusive does not make it
“illogic[al],” ante, at 576; instead, the limitation makes the rule readily
manageable. To hold the time-of-filing rule developed by this Court inap-
plicable here merely abjures mechanical extension of the rule in favor
of responding sensibly to the rule’s underlying justifications when those
justifications are indisputably present.

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Ginsburg, J., dissenting
the jurisdictional defect by dropping a dispensable party,
would mean an almost certain replay of the case, with, in all
likelihood, the same ultimate outcome. 490 U. S., at 837.10
Similarly here, given the October 2000 jury verdict of
$750,000 and the unquestioned current existence of complete
diversity, Atlas can be expected “simply [to] refile in the Dis-
trict Court” and rerun the proceedings. See ibid.11 No
legislative prescription, nothing other than this Court’s
readiness to cut loose a court-made rule from common sense,
accounts for waste of this large order.
The Court hypothesizes that Atlas and Dataflux will now
settle to avoid fresh litigation costs. Ante, at 581. The ma-
jority’s forecast, however, ignores the procedural history of
10 In stark contrast to today’s decision, see ante, at 580–582, the
Newman-Green Court said: “If the entire suit were dismissed, Newman-
Green would simply refile in the District Court . . . and submit the discov-
ery materials already in hand. . . . Newman-Green should not be compelled
to jump through [such] judicial hoops merely for the sake of hypertechnical
jurisdictional purity.” 490 U. S., at 837.
11 The statute of limitations is unlikely to bar the repeat performance
given the representation of counsel for both Atlas and Dataflux that
“a [Texas] savings statute, assuming Texas law applies, . . . would allow
Atlas to refile suit.” Tr. of Oral Arg. 22; see id., at 31. See also App. to
Pet. for Cert. 22a (District Court order staying “the statute of limitations
for the claims alleged in this case”); supra, at 586. Although counsel did
not provide a citation to the Texas saving statute, I note a provision of
that State’s law, Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (1997), cover-
ing cases originally filed in the wrong forum: “The period between the
date of filing an action in a trial court and the date of a second filing of
the same action in a different court suspends the running of the applicable
statute of limitations for the period if ” the first action is dismissed for
“lack of jurisdiction.” This prescription, described as “remedial in na-
ture,” has been “liberally construed.” Vale v. Ryan, 809 S. W. 2d 324, 326
(Tex. App. 1991). Counsel for both Atlas and Dataflux also suggested
New York law may apply. See Tr. of Oral Arg. 22, 31. New York has a
saving provision that appears to allow refiling just as Texas law would.
See N. Y. Civ. Prac. Law § 205(a) (West 2003) (“If an action is timely com-
menced and is terminated,” e. g., for lack of jurisdiction, “the plaintiff . . .
may commence a new action . . . within six months . . . .”).

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596 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
this case. Knowing full well the first jury verdict, the par-
ties on two occasions missed clear opportunities to settle:
after the District Court’s dismissal and after the Court of
Appeals’ reversal. Instead, the parties “waste[d] time and
resources,” including 31 ⁄ 2 years on a jurisdictional question.
Ibid. Even with the jurisdictional question resolved in its
favor, Dataflux would now weigh against settlement the pos-
sibility that a new panel of jurors, and tactical knowledge
gleaned from the first trial, could yield a different outcome
the second time around. Atlas, too, might decline to settle:
It prevailed once in a jury trial, and committed 61 ⁄ 2 years to
litigation, see ante, at 582, a cost that is rational to ignore,
but, in practice, hard to sideline. In short, settlement,
which depends on the parties’ shared estimate of likely litiga-
tion outcomes, is hardly guaranteed.
In two respects, there is stronger cause for departure from
the time-of-filing rule in Atlas’ case than there was in Cater-
pillar. See supra, at 587 (discussing Caterpillar). First,
the Caterpillar plaintiff, judgment loser in the federal trial
court, had timely but fruitlessly objected to the defend-
ant’s improper removal. 519 U. S., at 74. The plaintiff in
Caterpillar, this Court acknowledged, had done “all that
was required to preserve his objection to removal.” Ibid.
Though mindful of the “antecedent statutory violatio[n],” the
Court declined to disturb the District Court’s final judgment
on the merits. Id., at 74–75. The defendant in this case,
Dataflux, in seeking to erase the trial and verdict here, re-
sembles the plaintiff in Caterpillar, except that Dataflux
raised its subject-matter jurisdiction objection only after the
parties had become completely diverse. Cf. 312 F. 3d, at
170. It is one thing to preserve jurisdictional objections so
long as the jurisdictional flaw persists, see Kontrick v. Ryan,
540 U. S. 443, 455 (2004); Capron v. Van Noorden, 2 Cranch
126 (1804), quite another to tolerate such an objection after
the initial flaw has disappeared from the case.

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597 Cite as: 541 U. S. 567 (2004)
Ginsburg, J., dissenting
The Court sustains these outcomes: The Caterpillar plain-
tiff, whose prompt resistance to removal would generally
have garnered a remand to the state forum plaintiff had orig-
inally selected, is nevertheless bound to an adverse federal-
court judgment; the defendant, Dataflux here, after incor-
rectly conceding federal subject-matter jurisdiction in its
answer, see App. 35a, and leaving the record uncorrected
until the jury favored the plaintiff, is allowed to return to
square one, unburdened by the adverse judgment. There is
no little irony in that juxtaposition, all the more so given the
absence of any charge of manipulation in this case.
Nor would affirmance of the Fifth Circuit judgment entail
a significant risk of manipulation in other cases. Rarely, if
ever, will a plaintiff bring suit in federal district court, invok-
ing diversity jurisdiction under § 1332(a), with the knowledge
that complete diversity does not exist, but in the hope of
a postfiling jurisdiction-perfecting event. Such a plaintiff ’s
anticipation is likely to be thwarted by the court’s or the
defendant’s swift detection of the jurisdictional impediment.
Furthermore, a plaintiff who ignores threshold jurisdictional
requirements risks sanctions and “the displeasure of a dis-
trict court whose authority has been improperly invoked.”
Caterpillar, 519 U. S., at 77–78. The Court’s fears about the
“litigation-fostering effect” of exceptions to the time-of-filing
rule, ante, at 581, thus appear more imaginary than real.
No wave of new jurisdictional litigation is likely, as the
federal courts’ experience after Caterpillar and Newman-
Green shows.
Also distinguishing the two cases, in Caterpillar, the re-
moving defendant “satisfied with only a day to spare the
statutory requirement that a diversity-based removal take
place within one year of a lawsuit’s commencement.” 519
U. S., at 65 (citing 28 U. S. C. § 1446(b)). Had that defendant
remained in state court pending the settlement that left only
completely diverse parties in the litigation, the one-year limi-
tation on removal would have barred the way to federal

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598 GRUPO DATAFLUX v. ATLAS GLOBAL GROUP, L. P.
Ginsburg, J., dissenting
court. Nothing in the record or briefing here, however, sug-
gests that Atlas filed precipitously in federal court in the
hope of outpacing a fast-running limitations period; on the
contrary, Atlas’ complaint rested on events that occurred
only ten months prior to the commencement of the action,
see App. 18a, 22a–23a, and therefore fell comfortably within
any applicable time bar.12 This case thus presents no risk
that refusal to treat an initial jurisdictional flaw as determi-
native will de facto extend a limitations period. Cf. 13B
Wright, Miller, & Cooper, Federal Practice and Procedure
§ 3608, p. 459.
In sum, the Court’s judgment effectively returns this case
for relitigation in the very same District Court in which it
was first filed in 1997. Having lost once, Dataflux now gets
an unmerited second chance, never mind “just how much
time will be lost along the way.” Newman-Green, 490 U. S.,
at 837, n. 12 (internal quotation marks omitted). Nothing
is gained by burdening our district courts with the task of
replaying diversity actions of this kind once they have been
fully and fairly tried. Neither the Constitution nor federal
12 At oral argument, counsel for Atlas and Dataflux indicated that either
New York or Texas law would supply the governing limitations period.
See Tr. of Oral Arg. 22, 31. The Texas limitations period for contract and
quantum meruit actions is four years. See W. W. Laubach Trust/The
Georgetown Corp. v. The Georgetown Corp. /W. W. Laubach Trust, 80 S. W.
3d 149, 160 (Tex. App. 2002) (“Breach of contract claims are generally
governed by a four year statute of limitations.” (citing Tex. Civ. Prac. &
Rem. Code Ann. § 16.004 (1986))); Mann v. Jack Roach Bissonnet, Inc.,
623 S. W. 2d 716, 718 (Tex. Civ. App. 1981) (“[The] suit to recover on
quantum meruit . . . is a species of a suit for debt,” subject to the limi-
tations period for debt actions contained in § 16.004.). New York allows
six years for contract and quantum meruit actions. See In re R. M.
Kliment & Frances Halsband, Architects, 3 App. Div. 3d 143, 147, 770
N. Y. S. 2d 329, 332 (1st Dept., 2004) (“Breach of contract actions are sub-
ject generally to a six-year statute of limitations.” (internal quotation
marks omitted)); Eisen v. Feder, 307 App. Div. 2d 817, 818, 763 N. Y. S. 2d
279, 280 (1st Dept., 2003) (a six-year statute of limitations applies to quan-
tum meruit actions, citing N. Y. Civ. Prac. Law § 213.2 (West 2003)).

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599 Cite as: 541 U. S. 567 (2004)
Ginsburg, J., dissenting
statute demands a time-of-filing rule as rigid as the one the
Court today installs.
The Court invokes “175 years” of precedent, ante, at 575,
endorsing a time-of-filing rule that, generally, is altogether
sound. On that point, the Court is united. See supra, at
583–584. For the class of cases over which we divide—cases
involving a postfiling change in the composition of a multi-
member association such as a partnership—the Court pre-
sents no authority impelling the waste today’s judgment ap-
proves. Even if precedent could provide a basis for the
Court’s disposition, rules fashioned by this Court for “the
just, speedy, and inexpensive determination [of cases],” Fed.
Rule Civ. Proc. 1, should not become immutable at the in-
stant of their initial articulation. Rather, they should re-
main adjustable in light of experience courts constantly gain
in handling the cases that troop before them. See Great-
West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204,
233 (2002) (Ginsburg, J., dissenting); Grupo Mexicano de
Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308,
336–337, and n. 4 (1999) (Ginsburg, J., concurring in part
and dissenting in part) (recognizing, in line with contempo-
rary English decisions, dynamic quality of equity jurispru-
dence in response to evolving social and commercial needs).
I would affirm the judgment of the Fifth Circuit, which faith-
fully and sensibly followed the path the Court marked in
Newman-Green and Caterpillar.