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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 Souter, concurring in the judgment in part and
dissenting in part.
                            I
  This case turns on the meaning of two clauses of 42
U. S. C. 1985(3) which render certain conspiracies civilly
actionable.  The first clause (the deprivation clause) covers
conspiracies
-for the purpose of depriving, either directly or indi-
rectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and
immunities under the laws-;
the second (the prevention clause), conspiracies
-for the purpose of preventing or hindering the consti-
tuted authorities of any State or Territory from giving
or securing to all persons within such State or Terri-
tory the equal protection of the laws . . . .-
For liability in either instance the statute requires an -act
in furtherance of the . . . conspiracy, whereby [a person]
is injured in his person or property, or deprived of . . .
any right or privilege of a citizen of the United States
. . . .-
  Prior cases giving the words -equal protection of the
laws- in the deprivation clause an authoritative construc-
tion have limited liability under that clause by imposing
two conditions not found in the terms of the text.  An
actionable conspiracy must have some racial or perhaps
other class-based motivation,  Griffin v. Breckenridge, 403
U. S. 88, 102 (1971), and, if it is -aimed at- the depriva-
tion of a constitutional right, the right must be one
secured not only against official infringement, but against
private action as well.  Carpenters v. Scott, 463 U. S. 825,
833 (1983).  The Court follows these cases in applying the
deprivation clause today, and to this extent I take no
exception to its conclusion.  I know of no reason that
would exempt us from the counsel of stare decisis in
adhering to this settled statutory construction, see Hilton
v. South Carolina Public Railways Comm'n, 502 U. S. --
(1991), which Congress is free to change if it should think
our prior reading unsound.
                           II
  The meaning of the prevention clause is not thus
settled, however, and starting in Part IV I will give my
reasons for reading it without any importation of these
extratextual conditions from the deprivation clause.  First,
however, a word is in order to show that the prevention
clause's construction is properly before us, and to explain
why the Court is not in a position to cast doubt on that
clause's arguable applicability to the facts indicated by the
record, in light of the Court's refusal to allow respondents
to address this very issue in the supplemental briefing
that was otherwise permitted prior to the reargument of
this case.
                            A
  Respondents' complaint does not limit their theory of
liability to the deprivation clause alone, for it alleges
simply that petitioners -have conspired with each other
and other parties presently unknown for the purpose of
denying women seeking abortions at targeted facilities
their right to privacy, in violation of 42 U. S. C. 1985(3).-
App. 16.  Evidence presented at a hearing before the
District Court addressed the issue of prevention or hin-
drance, leading that court to note that the demonstrators
so far outnumbered local police that -[e]ven though 240
rescuers were arrested, police were unable to prevent the
closing of the clinic for more than six (6) hours.-  National
Organization for Women v. Operation Rescue, 726 F. Supp.
1483, 1489, n. 4 (ED Va. 1989).  The applicability of the
prevention clause is fairly included within the questions
presented, especially as restated by respondents, see Brief
for Respondents i (first question presented); Brief in
Opposition i; Holmes v. Securities Investor Protection
Corp., 503 U. S. -- 1317, n. 12 (1992) (respondent has
the right under this Court's Rule 24.2 to restate the
questions presented); see also Pet. for Cert. i (petitioners'
fourth question presented).  The issue was briefed, albeit
sparingly, by the parties prior to the first oral argument
in this case, see Brief for Respondents 43-44; Reply Brief
for Petitioners 14-15, and during that argument was the
subject of a question from the bench.  See Tr. of Oral Arg.
27-29.

                            B
  Just as it is therefore proper for me to address the
interpretation of the prevention clause and the merits of
respondents' position under its terms, it was reasonable
for respondents themselves to seek leave to file a supple-
mental brief addressing that interpretation and those
merits prior to the reargument.  Their request was
nonetheless denied, see 505 U. S. ____ (1992), though I
voted to grant it, and three other Members of the Court
dissented on the record from the Court's action to the
contrary.  Nonetheless, whatever may have been the
better decision, denying respondents' request was at least
consistent with leaving the consideration of the prevention
clause for another day, and in no way barred respondents
from pressing a claim under the clause at a later stage
of this litigation.  A vote to deny the request could, for
example, simply have reflected a view that in the absence
of more extensive trial court findings than those quoted
above it was better to leave the prevention clause for
further consideration on the remand that I agree is
appropriate.  Now, however, in expressing skepticism that
the prevention clause could be a basis for relief, the Court
begins to close the door that the earlier order left open,
a move that is unfair to respondents after their request
was denied.  While the Court's opinion concentrates on the
errors of my ways, it would be difficult not to read it as
rejecting a construction of the prevention clause under
which petitioners might succeed, and to that extent as
barring their claim under a statutory provision on which
they were not allowed to comment in the supplemental
briefing that was otherwise permitted before reargument.

                            C
  Because in my judgment the applicability of the preven-
tion clause was raised, and because there is neither
unfairness to respondents in putting forward a statutory
interpretation that does not bar their claim, nor unfair-
ness to petitioners who sought no leave to address the
issue further, I turn to my own views on the meaning of
the prevention clause's terms.

                           III
  Because this Court has not previously faced a preven-
tion clause claim, the difficult question that arises on this
first occasion is whether to import the two conditions
imposed on the deprivation clause as limitations on the
scope of the prevention clause as well.  If we do not, we
will be construing the phrase -equal protection of the
laws- differently in neighboring provisions of the same
statute, and our interpretation will seemingly be at odds
with the -natural presumption that identical words used
in different parts of the same act were intended to have
the same meaning.-  Atlantic Cleaners & Dyers, Inc. v.
United States, 286 U. S. 427, 433 (1932).  But the pre-
sumption is defeasible, and in this instance giving the
common phrase an independent reading is exactly what
ought to be done.
  This is so because the two conditions at issue almost
certainly run counter to the intention of Congress, and
whatever may have been the strength of this Court's
reasons for construing the deprivation clause to include
them, those reasons have no application to the prevention
clause now before us.  To extend the conditions to shorten
the prevention clause's reach would, moreover, render that
clause inoperative against a conspiracy to which its terms
in their plain meaning clearly should apply, a conspiracy
whose perpetrators plan to overwhelm available law
enforcement officers, to the point of preventing them from
providing a class of victims attempting to exercise a
liberty guaranteed them by the Constitution with the
police protection otherwise extended to all persons going
about their lawful business on streets and private pre-
mises.  Lest we embrace such an unintended and unto-
ward result, we are obliged to reject any limiting construc-
tions that stare decisis does not require.
                            A
  The amalgam of concepts reflected in 42 U. S. C.
1985(3) witness the statute's evolution, as 2 of the
Civil Rights Act of 1871, from a bill that would have
criminalized conspiracies -to do any act in violation of the
rights, privileges, or immunities of any person . . .,- Cong.
Globe, 42d Cong., 1st Sess., App. 206 (Apr. 1, 1871)
(statement of Rep. Blair), quoting H. R. 320, 2, 42d
Cong., 1st Sess. (1871), to a statute including a civil cause
of action against conspirators and those who -go in
disguise- to violate certain constitutional guarantees.  See
17 Stat. 13.  The amendment of the original bill that
concerns us occurred in the House, to calm fears that the
statute's breadth would extend it to cover a vast field of
traditional state jurisdiction, exceeding what some Mem-
bers of Congress took to be the scope of congressional
power under the Fourteenth Amendment.  See Comment,
A Construction of Section 1985(c) in Light of Its Original
Purpose, 46 U. Chi. L. Rev. 402, 417 (1979).  The princi-
pal curb placed on the statute's scope was the requirement
that actionable conspiracies (not otherwise proscribed on
the strength of their threats to voting rights, see 1985(3))
be motivated by a purpose to deny equal protection of the
laws.  The sponsor of the amendment, Representative
Shellabarger, put it this way: -The object of the amend-
ment is . . . to confine the authority of this law to the
prevention of deprivations which shall attack the equality
of rights of American citizens . . . .-  Cong. Globe, 42d
Cong., 1st Sess., 478 (Apr. 5, 1871).
  The effect of the equal protection requirement in thus
limiting the deprivation clause has received the Court's
careful attention, first in Collins v. Hardyman, 341 U. S.
651 (1951), then in a series of more recent cases, Griffin
v. Breckenridge, 403 U. S. 88 (1971), Great American
Federal Savings & Loan Assn. v. Novotny, 442 U. S. 366
(1979), and Carpenters v. Scott, 463 U. S. 825 (1983).  For
present purposes, Griffin and Carpenters stand out.

                            B
  The Griffin Court sought to honor the restrictive intent
of the 42d Congress by reading the -language requiring
intent to deprive of equal protection, or equal privileges
and immunities,- Griffin, supra, at 102 (emphasis omit-
ted), as demanding proof of -some racial, or perhaps
otherwise class-based, invidiously discriminatory animus
behind the conspirators' action.-  Ibid.  And while this
treatment did, of course, effectively narrow the scope of
the clause, it did so probably to the point of overkill,
unsupported by any indication of an understanding on the
part of Congress that the animus to deny equality of
rights lying at the heart of an equal protection violation
as the legislation's sponsors understood it would necessar-
ily be an animus based on race or some like character.
See id., at 100; Cong. Globe, 42d Cong., 1st Sess., at App.
188 (remarks of Rep. Willard); Cong. Globe, 42d Cong., 1st
Sess., at 478 (remarks of Rep. Shellabarger).
  While the Congress did not explain its understanding
of statutory equal protection to any fine degree, I am not
aware of (and the Griffin Court did not address) any evi-
dence that in using the phrase -equal protection- in a
statute passed only three years after the ratification of the
Fourteenth Amendment Congress intended that phrase to
mean anything different from what the identical language
meant in the Amendment itself.  That is not to say, of
course, that all Members of Congress in 1871, or all
jurists, would have agreed on exactly what the phrase did
mean, and certainly it is true that the conceptual develop-
ment of equal protection could hardly have been outlined
in advance by the Members of the 42d Congress.  But
equally is it true that we have no reason to suppose
that they meant their statutory equal protection provision
to be read any more narrowly than its obvious cognate in
the Amendment.  Griffin, however, gave it just such a
reading.
  To be sure, there is some resonance between Griffin's
animus requirement and those constitutional equal protec-
tion cases that deal with classifications calling for strict
or heightened scrutiny, as when official discriminations
employ such characteristics as race, national origin, alien-
age, gender, or illegitimacy.  See Cleburne v. Cleburne
Living Center, Inc., 473 U. S. 432, 440-441 (1985) (de-
scribing the jurisprudence).  But these categories of
distinctions based on race or on qualities bearing a more
or less close analogy to race do not by any means exhaust
the scope of constitutional equal protection.  All legislative
classifications, whether or not they can be described as
having -some racial or perhaps otherwise class-based
invidiously discriminatory animus,- are subject to review
under the Equal Protection Clause, which contains no
reference to race, and which has been understood to have
this comprehensive scope since at least the late 19th
century.  See, e.g., Magoun v. Illinois Trust & Savings
Bank, 170 U. S. 283, 293-294 (1898) (citing cases).  A
routine legislative classification is, of course, subject only
to deferential scrutiny, passing constitutional muster if it
bears a rational relationship to some legitimate govern-
mental purpose.  E.g., Cleburne v. Cleburne Living Center,
Inc., supra, (describing the test); Schweiker v. Wilson, 450
U. S. 221, 230 (1981).  But the point is that Fourteenth
Amendment equal protection scrutiny is applied to such
classifications, and if the scope of -equal protection- in the
statute is to balance its constitutional counterpart, the
statute ought to cover discriminations that would be
impermissible under rational basis scrutiny.
  There is, indeed, even some extratextual evidence of a
positive congressional intent to provide just such a statu-
tory reach beyond what Griffin would allow.  Some of the
legislative history of 2 of the 1871 Act suggests that the
omission of any reference to race from the statutory text
of equal protection was not the result of inadvertence, and
that Congress understood that classifications infringing the
statutory notion of equal protection were not to be limited
to those based on race or some closely comparable per-
sonal quality.  The most significant, and often quoted, evi-
dence came from Senator Edmunds, who managed the bill
on the Senate floor and remarked that if there were a
conspiracy against a person -because he was a Democrat,
if you please, or because he was a Catholic, or because he
was a Methodist, or because he was a Vermonter . . .
then this section could reach it.-  Cong. Globe, 42d Cong.,
1st Sess., at 567.  These are not, of course, all examples
of discrimination based on any class comparable to race,
and the Senator's list counters any suggestion that the
subject matter of statutory equal protection was meant to
be so confined.
                            C
  Notwithstanding the Griffin Court's decision to read the
deprivation clause's equal protection element as more
restrictive than Fourteenth Amendment equal protection,
the Court recognized that in a different respect the statute
remained more expansive than its constitutional counter-
part, in being aimed at deprivations of equal protection
by purely private conspirators, 403 U. S., at 96-97.  This
very conclusion, in fact, prompted the further concern that
the deprivation clause might by its terms apply to facts
beyond Congress' constitutional reach.  The Court none-
theless obviated the need to address the scope of congres-
sional power at that time by confining itself to a holding
that the statute was constitutional at least insofar as it
implemented congressional power to enforce the Thirteenth
Amendment and the right to travel freely, each of which
was -assertable against private as well as governmental
interference.-  Id., at 105.
  The Court was then only one step away from putting
the deprivation clause in its present shape, a step it took
in Carpenters.  Whereas Griffin had held that requiring
a purpose to infringe a federal constitutional right guaran-
teed against private action was sufficient to allay any fear
that the deprivation clause was being applied with uncon-
stitutional breadth, Carpenters turned this sufficient
condition into a necessity insofar as conspiracies to deprive
any person or class of persons of federal constitutional
rights were concerned, by holding that in the case of such
a conspiracy no cause of action could be stated without
alleging such an ultimate object of depriving the plaintiff
of a right protected against private action by the Federal
Constitution.  463 U. S., at 833.
  It was a most significant step.  In going no further than
to affirm the deprivation clause's constitutionality insofar
as it applied to conspiracies to infringe federal constitu-
tional rights guaranteed against private action, the Griffin
Court had arguably acted with prudent reticence in
avoiding a needless ruling on Congress' power to outlaw
conspiracies aimed at other rights.  But in converting
this indisputably constitutional object, of giving relief
against private conspiracies to violate federal constitution-
al rights guaranteed against private action, into the
exclusive subject matter of the clause with respect to
conspiracies to deprive people of federal constitutional
rights, the Carpenters Court almost certainly narrowed
that clause from the scope Congress had intended.  If
indeed Congress had meant to confine the statute that
narrowly, its application to federal constitutional depriva-
tions in 1871 would not have gone beyond violations of
the Thirteenth Amendment, adopted in 1865.  (The next
clear example of a constitutional guarantee against
individual action would not emerge until United States v.
Guest, 383 U. S. 745, 759-760, n. 17 (1966), recognizing
a right of interstate travel good against individuals as
well as governments.)  But if Congress had meant to
protect no federal constitutional rights outside those
protected by the Thirteenth Amendment, it is hard to see
why the drafters would not simply have said so, just as
in the third and fourth clauses of 1985(3) they dealt
expressly with infringements of voting rights, already
guaranteed against abridgement by the Fifteenth Amend-
ment adopted in 1870.
  The Carpenters Court might have responded to this
objection by suggesting that the textual breadth of the
deprivation clause reflects its applicability to conspiracies
aimed at violating rights guaranteed under state law or
rights guaranteed against individual infringement by
federal statutory law, since such possible applications were
left open by the Court's opinion.  See Carpenters, supra,
at 833-834.  But this answer would prompt the even more
fundamental objection that there is no textual basis in the
deprivation clause (or in the portions of subsection (3)
common to all clauses) suggesting that any such individu-
al-infringement limitation was intended at all.
  Whether or not the concerns with constitutionality that
prompted both the Griffin and Carpenters holdings were
well raised or wisely allayed by those decisions, the
solution reached most probably left a lesser deprivation
clause than Congress intended.  Just as probably, if that
solution were imported into the prevention clause, it would
work an equally unintended contraction.

                           IV
  The conclusion that the conditions placed on the depri-
vation clause narrow its intended scope prompts the
question whether the reasons thought to argue in favor
of placing such conditions on the deprivation clause apply
to the prevention clause.  They do not.

                            A
  We may recall that in holding racial or other class-based
animus a necessary element of the requisite purpose to
deprive of equal protection, the Griffin Court was mindful
of the congressional apprehension that the statute might
otherwise turn out to be -a general federal tort law.-
Griffin, 403 U. S., at 102.  While the Court did not dwell
on why it chose a requirement of racial or comparable
class-based animus to restrict statutory equal protection,
its readiness to read the statutory category more narrowly
than its Fourteenth Amendment counterpart is at least
understandable when one sees that the scope of conspira-
cies actionable under the deprivation clause has virtually
no textual limit beyond the need to prove the equal
protection element.  Without the Griffin Court's self-
imposed class-based animus requirement, any private
conspiracy to deprive of equal protection would be action-
able under 1985(3) so long as the conspirators took some
action that produced some harm.
  The prevention clause carries no such premonition of
liability, however.  Its most distinctive requirement, to
prove a conspiratorial purpose to -preven[t] or hinde[r] the
constituted authorities of any State or Territory from
giving or securing . . .  the equal protection of the laws,-
is both an additional element unknown to the deprivation
clause, and a significantly limiting condition.  Private
conspiracies to injure according to class or classification
are not enough here; they must be conspiracies to act with
enough force, of whatever sort, to overwhelm the capacity
of legal authority to act evenhandedly in administering the
law.
  The requirement that the very capacity of the law
enforcement authorities must be affected is supported by
a comparison of the statutory language of the prevention
clause, which touches only those conspiracies with a
purpose to -preven[t] or hinde[r] the constituted authori-
ties- of any State or territory from giving or securing
equal protection, with the text of 1985(1), which (among
other things) prohibits conspiracies to prevent -any person-
from -discharging any duties- of an office under the
United States.  The contrast makes clear that the words
of the prevention clause are not those that Congress used
when it meant to deal with every situation in which a
single government official was prevented from discharging
his duties.  To be sure, in an earlier day of scarce law
enforcement personnel, rudimentary communication and
slow transportation, in some situations it might have been
possible to overthrow the capacity of government by
overthrowing one official alone.  But a more ambitious
conspiratorial object would be required under normal
modern conditions, and in order to satisfy the requirement
of affecting the law enforcement system sufficiently, such
a conspiracy would need to envision action capable of
countering numbers of officers or injuring their responsive
capacity (as by disabling their communication system, for
example).
  The requirement of an object to thwart the capacity of
law enforcement authority to provide equal protection of
the laws thus narrows the scope of conspiracies actionable
under the prevention clause.  It does so to such a degree
that no reason appears for narrowing it even more by a
view of equal protection more restrictive than that of the
Fourteenth Amendment.

                            B
  Equally inapposite to the prevention clause is the second
Griffin-Carpenter deprivation clause limitation that where
a conspiracy to deny equal protection would interfere with
exercise of a federal constitutional right, it be a right
-protected against private, as well as official encroach-
ment,- Carpenters, 463 U. S., at 833.  The justification for
the Court's initial enquiry concerning rights protected by
the Constitution against private action lay in its stated
concern about the constitutional limits of congressional
power to regulate purely private action.  Griffin, 403
U. S., at 104.  Once again, however, the reason that there
is no arguable need to import the extratextual limitation
from the deprivation clause into the prevention clause lies
in the prevention clause's distinctive requirement that the
purpose of a conspiracy actionable under its terms must
include a purpose to accomplish its object by preventing
or hindering officials in the discharge of their constitution-
al responsibilities.  The conspirators' choice of this means
to work their will on their victims would be significant
here precisely because the act of frustrating or thwarting
state officials in their exercise of the State's police power
would amount simply to an extralegal way of determining
how that state power would be exercised.  It would, in
real terms, be the exercise of state power itself.  To the
degree that private conspirators would arrogate the State's
police power to themselves to thwart equal protection by
imposing what amounts to a policy of discrimination in
place of the Constitution's mandate, their action would be
tantamount to state action and be subject as such to
undoubted congressional authority to penalize any exercise
of state police power that would abridge the equal protec-
tion guaranteed by the Fourteenth Amendment.  That is
to say, Congress is no less able to legislate against
unconstitutional exercises of state authority by conspirato-
rial usurpation than it is to counter unconstitutional
action taken by those formally vested with state authority.
  This equation of actionable conspiracies with state action
is indeed central to the reading given to the prevention
clause by the Griffin Court.  In reasoning that the depri-
vation clause contained no state action requirement, the
Court contrasted the text of that clause with the language
of three other provisions indicating, respectively, -three
possible forms for a state action limitation on 1985(3).-
Griffin, 403 U. S., at 98.  One such limitation that might
have been read into the deprivation clause was -that there
must be interference with or influence upon state authori-
ties.-  Ibid.  The Court declined to tack that requirement
onto the deprivation clause because its inclusion in the
prevention clause indicated that Congress intended it to
apply there and nowhere else.  The relevant point here
is that the whole basis of the Griffin Court's analysis was
that -interference with or influence on state authorities-
was state action, and it follows from Griffin's own premis-
es that no guarantee-against-private-encroachment condi-
tion would have been needed even then to allay any
apprehension that in reaching the private conspiracies
described by the prevention clause, Congress might be
exceeding its authority under 5 of the Fourteenth Amend-
ment.
  Accordingly, I conclude that the prevention clause may
be applied to a conspiracy intended to hobble or over-
whelm the capacity of duly constituted state police author-
ities to secure equal protection of the laws, even when the
conspirators' animus is not based on race or a like class
characteristic, and even when the ultimate object of the
conspiracy is to violate a constitutional guarantee that
applies solely against state action.

                            V
  Turning now to the application of the prevention clause
as I thus read it, I conclude that a conspiracy falls within
the terms of the prevention clause when its purpose is to
hinder or prevent law enforcement authorities from giving
normal police protection to women attempting to exercise
the right to abortion recognized in Casey v. Planned
Parenthood of Southeastern Pennsylvania, 505 U. S. ____
(1992), and Roe v. Wade, 410 U. S. 113 (1973).  My
reason for this is not a view that a State's frustration of
an individual's choice to obtain an abortion would, without
more, violate equal protection, but that a classification
necessarily lacks any positive relationship to a legitimate
state purpose, and consequently fails rational basis
scrutiny, when it withdraws a general public benefit on
account of the exercise of a right otherwise guaranteed by
the Constitution.  See Police Dept. of Chicago v. Mosley,
408 U. S. 92, 95 (1972) (applying the Equal Protection
Clause and finding no -appropriate governmental interest
suitably furthered- by a discrimination that would inde-
pendently violate the First Amendment).  While such a
discrimination, were it wrought by the State, could be
treated as a burden on the exercise of a right protected
by a substantive due process guarantee, see Casey, supra,
and forbidden as such, the denial of generally available
civic benefits to one group solely because its members seek
what the Constitution guarantees would just as clearly be
a classification for a forbidden purpose, which is to say,
independently a violation of equal protection.  See Mosley,
supra; Carey v. Brown, 447 U. S. 455 (1980).  When
private individuals conspire for the purpose of arrogating
and, in effect, exercising the State's power in a way that
would thus violate equal protection if so exercised by state
officials, the conspiracy becomes actionable when imple-
mented by an act ``whereby [a person] is injured in his
person or property, or deprived of . . . any right or
privilege of a citizen of the United States.''  1985(3).
                           VI
  The only remaining question is whether respondents
have demonstrated, and the District Court has found, a
conspiracy thus actionable under the prevention clause.
While I think that all of the requisite findings would be
supportable on this record, one such finding has not been
expressly made.
  The District Court found that petitioners conspired to
cause respondent clinics to cease operations by trespassing
on their property and physically blocking entry into and
exit from the clinics, see 726 F. Supp., at 1489, rendering
existing and prospective patients, as well as physicians
and medical staff, unable to enter the clinic to render or
receive medical counseling or advice.  Ibid.  The District
Court found that petitioners' actions were characteristically
undertaken without notice and typically overwhelmed local
police officials invested with the law enforcement compo-
nent of the State's police power, rendering them unable
for a substantial period to give or secure the police
protection otherwise extended to all persons going about
their lawful business on the streets and on private pre-
mises.  Id., at 1489, 1490, and n. 4.  The victims were
chosen because they would be making choices falling
within the scope of recognized substantive due process
protection, id., at 1489, choices that may not be made the
basis for discriminatory state classifications applied to
deny state services routinely made available to all persons.
The District Court found that the effects of thus replacing
constituted authority with a lawless regime would create
a substantial risk of physical harm, ibid., and of damage
to respondents' property, id., at 1489-1490, a conclusion
amply supported by the record evidence of personal
assaults and tortious restrictions on lawful movement, as
well as damage to property, at petitioners' previous
demonstrations.  See, e.g., Tr. A-25 (Nov. 20, 1989).
  These facts would support a conclusion that petitioners'
conspiracy had a -purpose of preventing or hindering the
constituted authorities of [Virginia] from giving or securing
to all persons within [Virginia] the equal protection of the
laws,- and it might be fair to read such a finding between
the lines of the District Court's express conclusions.  But
the finding was not express, and the better course is to
err on the side of seeking express clarification.  Certainly
that is true here, when other Members of the Court think
it appropriate to remand for further proceedings.  I
conclude therefore that the decision of the Court of
Appeals should be vacated and the case be remanded for
consideration of purpose, and for a final determination
whether implementation of this conspiracy was actionable
under the prevention clause of 42 U. S. C. 1985(3).