KENNEDY, J., concurring

The judgment of the Court of Appeals is reversed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.

JUSTICE KENNEDY, concurring.

It is so ordered.

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, organized, 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 inflame, 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

Opinion of SOUTER, J.

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, including 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 extraordinary 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 unnecessary 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 federally 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.

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

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"for the purpose of depriving, either directly or indirectly, 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 constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory 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 construction 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 deprivation 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. 197 (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

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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. 16.1 Evidence presented at a hearing before the District Court addressed the issue of prevention or hindrance, leading that court to note that the demonstrators so far outnumbered local police that "[e]ven though 240 rescuers were arrested, the 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); 2 Brief in Opposition i; Holmes v. Securities Investor Protection Corp., 503 U. S. 258, 267, n. 12 (1992) (respondent has the right under this Court's Rule 24.2 to

1Contrary to the Court's interpretation, see ante, at 279, and n. 8, respondents made this very point at reargument:

"Q: And it wasn't-and it wasn't in the complaint, was it?

"Ms. Ellis: No, Your Honor. The complaint is [sic] alleged, though, a violation of section 1985(3) generally." Tr. of Reargument 33-34.

2 "Whether a conspiracy to blockade medical clinics providing abortions and related services to women, substantial numbers of whom travel from other states, is a basis for a cause of action under 42 U. S. C. § 1985(3)."

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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 supplemental brief addressing that interpretation and those merits prior to the reargument. Their request was nonetheless denied, see 505 U. S. 1240 (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 respondents might suc

3 "Are respondents' claims under 42 U. S. C. § 1985(3) so insubstantial as to deprive the federal courts of subject matter jurisdiction?"