The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_985/90_985.zc

Text File | 1993-01-13 | 3.5 KB | 73 lines

SUPREME COURT OF THE UNITED STATES
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No. 90-985
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JAYNE BRAY, et al., PETITIONERS v. ALEXANDRIA
WOMEN'S HEALTH CLINIC et al.
on writ of certiorari to the united states court
of appeals for the fourth circuit
[January 13, 1993]

  Justice Kennedy, concurring.
  In joining the opinion of the Court, I make these added
observations.
  The three separate dissenting opinions in this case offer
differing interpretations of the statute in question, 42
U. S. C. 1985(3).  Given the difficulty of the question,
this is understandable, but the dissenters' inability to
agree on a single rationale confirms, in my view, the
correctness of the Court's opinion.  As all recognize,
essential considerations of federalism are at stake here.
The federal balance is a fragile one, and a false step in
interpreting 1985(3) risks making a whole catalog of
ordinary state crimes a concurrent violation of a single
congressional statute passed more than a century ago.
  Of course, the wholesale commission of common state-
law crimes creates dangers that are far from ordinary.
Even in the context of political protest, persistent, orga-
nized, premeditated lawlessness menaces in a unique way
the capacity of a State to maintain order and preserve the
rights of its citizens.  Such actions are designed to in-
flame, not inform.  They subvert the civility and mutual
respect that are the essential preconditions for the orderly
resolution of social conflict in a free society.  For this
reason, it is important to note that another federal statute
offers the possibility of powerful federal assistance for
persons who are injured or threatened by organized
lawless conduct that falls within the primary jurisdiction
of the States and their local governments.
  Should state officials deem it necessary, law enforcement
assistance is authorized upon request by the State to the
Attorney General of the United States, pursuant to 42
U. S. C. 10501.  In the event of a law enforcement
emergency as to which -State and local resources are
inadequate to protect the lives and property of citizens or
to enforce the criminal law,- 10502(3), the Attorney
General is empowered to put the full range of federal law
enforcement resources at the disposal of the State, includ-
ing the resources of the United States Marshals Service,
which was presumably the principal practical advantage
to respondents of seeking a federal injunction under
1985(3).  See 10502(2).
  If this scheme were to be invoked, the nature and
extent of a federal response would be a determination for
the Executive.  Its authority to act is less circumscribed
than our own, but I have little doubt that such extraordi-
nary intervention into local controversies would be ordered
only after a careful assessment of the circumstances,
including the need to preserve our essential liberties and
traditions.  Indeed, the statute itself explicitly directs the
Attorney General to consider -the need to avoid unneces-
sary Federal involvement and intervention in matters
primarily of State and local concern.-  10501(c)(5).
  I do not suggest that this statute is the only remedy
available.  It does illustrate, however, that Congress has
provided a federal mechanism for ensuring that adequate
law enforcement resources are available to protect federal-
ly guaranteed rights and that Congress, too, attaches great
significance to the federal decision to intervene.  Thus,
even if, after proceedings on remand, the ultimate result
is dismissal of the action, local authorities retain the right
and the ability to request federal assistance, should they
deem it warranted.