The Burger Court Opinion
Writing Database
Kassel v. Consolidated Freightways Corp.
of Delaware
450 U.S. 662 (1981)
Paul J. Wahlbeck, George Washington University
James F. Spriggs, II, Washington University in St. Louis
Forrest Maltzman, George Washington University
Anprtutt (Court of tilt Pritth Abdul
Aztoirington, .
CHAMBERS Or
THE CHIEF JUSTICE
January 12, 1981
Re: No. 79-1320, Kassel v. Consolidated Freightways Corp.
MEMORANDUM TO THE CONFERENCE
In light of Lewis's memorandum circulated today, I am
asking Bill Rehnquist to take the opinion for the Court. My view
remains as it was that it is a line-drawing case and I would let
the state do the drawing -- at least up to this point.
The record shows that truck length is related to safety
and that the legislative line-drawing in this case presents no
constitutional problem. Raymond seems distinguishable to me
because in the present case, we have an undisturbed finding that
the statute does not discriminate against out-of-state interests
on its face or in enforcement. The exemptions in Iowa's statute
are qualitatively different from those Harry discussed in his
separate opinion in Raymond, and the record shows that intrastate
interests have twice successfully lobbied for longer trucks.
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CHAMBERS OF
THE CHIEF JUSTICE
1:1
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February 4, 1981
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RE: 79-1320 - Kassel v. Consolidated Freightways
Corporation of Delaware
0-3
Dear Bill:
I still think this is a "line drawing" case and that
judges should "keep out."
ro
I join.
tv
Regards,
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Justice Rehnquist Copies to the Conference
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JUSTICE W... J. BRENNAN, JR.
RE: No. 79-1320 Kassel v. Consolidated Freightways
Corporation of Delaware
Dear Harry:
You, John and I are in dissent in the above.
Would you be willing to undertake the dissent?
•
Sincerely,
Mr. Justice Blackmun
cc: Mr. Justice Stevens
lo: Tha
Chief Justine
Mr. Justice Stewart
lb. Justioe White
Mr. Justice Marshall:7T
Kassel v. Consolidated Freightways Corp. Mr. JustioeBlaolmwn1
No.
Mr. Justioa Powell
Mr. Justioe Rehnquist
Mr. 'Natio° Stevens
79 - 1320
4
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Prow Mr. justice Brennan'
JUSTICE BRENNAN:
Olraulated:
DEB 17 Igo
Reoiroulated:
Iowa's truck length regulation challenged in this case is
nearly identical to the Wisconsin regulation which a unanimous)
Court struck down in
Raymond Motor Transportation, Inc. v.
Rice, 434 U.S. 429 (1978), as in violation of the Commerce
Clause. In my view the same Commerce Clause restrictions that
dictated that holding also require invalidation of Iowa's
regulation insofar as it prohibits 65-foot doubles.
My reasoning bringing me to that conclusion does not
require, however, that I engage in the debate between my Brothers
POWELL and REHNQUIST over what the District Court record shows on
the question whether 65-foot doubles are more dangerous than
shorter trucks. With all respect, my Brothers ask and answer the
wrong question.
For me inquiry in the case of Commerce Clause challenges to
state regulations must take into account three principles: (1)
The courts are not empowered to second-guess the empirical
judgments of lawmakers concerning the utility of legislation.
(2) The burdens imposed on commerce must be balanced against the
local benefits actually sought to be achieved by the State's
1 JUSTICE STEVENS took no part in the consideration or
decision of Raymond.
O
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33
To: The Chief Justice
Mr. Justice Stewart
C
Mr. Justice 'hits
GIA-5c.)
Mr. Justice Marshall
Mr. Justice Blackmun
Mr. Justice Powell
Mr. Justice Rehnquist
Mr. Justice Stevens
00"
Prom: Mr. Justice Brennan
1st PRINTED DRAFT
Circulated:
SUPREME COURT OF iiiE UNITED STAPArculated: FEE/ 1 9 Mi
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
v.
States Court of Appeals
for the Eighth Circuit.
Consolidated Freightways Cor-
poration of Delaware.
[February —, 1981]
JUSTICE BRENNAN.
Iowa's truck length regulation challenged in this case is
nearly identical to the Wisconsin regulation struck down by
a unanimous' Court in Raymond Motor Transportation, Inc.
v. Rice, 434 U. S. 429 (1978), as in violation of the Commerce Clause. In my view the same Commerce Clause restrictions that dictated that holding also require invalidation
of Iowa's regulation insofar as it prohibits 65-foot doubles,
The reasoning bringing me to that conclusion does not require, however, that I engage in the debate between my
Brothers POWELL and REHNQUIST over what the District
Court record shows on the question whether 65-foot doubles
are more dangerous than shorter trucks. With all respect,
my Brothers ask and answer the wrong question:
For me, analysis of Commerce Clause challenges to state
regulations must take into account three principles: .(1) The
courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.
(2) The burdens imposed on commerce must be balanced
against the local benefits actually sought to be achieved by
the State's lawmakers, and not against those suggested after
1 JUSTICE STEVENS took no part in the consideration or decision of
Raymond.
11 3
j LI J
The Chief Justice
Mr. Justice Stewart
Mr. Justice White
Mr. Justice MarshalT
kr. Justice Blackman
Mr. Justioe Powell
Mr. Justice Rehnqui4
Mr. Justice Stevens
S
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re nJr-Atte
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-,./k-e...s
nrom: Mr. Justice Brennan
1
2nd DRAFT
Olroulated: n
FEB. z 0 WI C`'
COURT OF THE UNITED STA*Sirculated:
n
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for
the Eighth Circuit.
Consolidated Freightways Cor-
poration of Delaware.
[February —, 19811
I
JUSTICE BRENNAN, with whom JUSTICE MARSHALL jOiI1S,
concurring in the judgment.
Iowa's truck length regulation challenged in this case is
nearly identical to the Wisconsin regulation struck down in
Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429
(1978), as in violation of the Commerce Clause. In my view
the same Commerce Clause restrictions that dictated that
holding also require invalidation of Iowa's regulation insofar
as it prohibits 65-foot doubles.
The reasoning bringing me to that conclusion does not require, however, that I engage in the debate between my
Brothers POWELL and REHNQUIST over what the District
Court record shows on the question whether 65-foot doubles
are more dangerous than shorter trucks. With all respect,
my Brothers ask and answer the wrong question.
For me, analysis of Commerce Clause challenges to state
regulations must take into account three principles: (1) The
courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.
(2) The burdens imposed on commerce must be balanced
against the local benefits actually sought to ')e achieved by
the State's lawmakers, and not against those suggested after
the fact by counsel. (3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens
and benefip are reigeci to safety rather than economics.
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CHAMBERS OF
JUSTICE W.. J. BRENNAN, JR.
March 5, 1981
MEMORANDUM TO THE CONFERENCE
Re: No. 79-1320, Kassel v. Consolidated Freightways Corp.
Attached is a footnote to my concurring opinion in the above
case. It will appear at the end of the first, uncompleted
paragraph on page 4.
Sincerely,
/Z
V
3
To: The Chief J'
Mr. Justice Stewart
Mr. Justice White
Mr. Justice Marshall
Mr. Justice Blackmun
Mr. Justice Powell
Mr< Justice R7hnquist
Mr. Justice Stevens
Ce (-1
3rd DRAFT
BIIMIDS
From: Mr. Justice Brennan
COURT OF THE UNITED STAMulated:
Recirculated: No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for
the Eighth Circuit.
Consolidated Freightways Cor-
poration of Delaware.
[February —, 1981]
JUSTICE BRENNAN, with Whom JUSTICE MARSHALL jOiRS,
concurring in the judgment.
Iowa's truck length regulation challenged in this case is
nearly identical to the Wisconsin regulation struck down in
Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429
(1978), as in violation of the Commerce Clause. In my view
the same Commerce Clause restrictions that dictated that
holding also require invalidation of Iowa's regulation insofar
as it prohibits 65-foot doubles.
The reasoning bringing me to that conclusion does not require, however, that I engage in the debate between my
Brothers POWELL and REHNQITIST over what the District
Court record shows on the question whether 65-foot doubles
are more dangerous than shorter trucks. With all respect,
my Brothers ask and answer the wrong question.
For me, analysis of Commerce Clause challenges to state
regulations must take into account three principles: (1) The
courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.
(2) The burdens imposed on commerce must be balanced
against the local benefits actually' sought to be achieved by
the State's lawmakers, and not against those suggested after
the fact by counsel. .(3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens
and benefits are related to safety rather than economics.
dicq
Ce e f
4
The Chief Just:: c
Wr, Justice Stewart.
lir, Justice White
Justice kars
Mr. Justicc
Mr, J,:i:ittre
Mr, Jus,
Mr,
4th DRAFT
,J
SUPREME COURT OF THE UNITED 'STATES
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for the Eighth Circuit,
Consolidated Freightways Corporation Qf Delaware.
[February —, 1981]
with whom JUSTICE MARSHALL joins,
concurring in the judgment.
Iowa's truck length regulation challenged in this case is
nearly identical to the Wisconsin regulation struck down in
Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429
(1978), as in violation of the Commerce Clause. In my view
the same Commerce Clause restrictions that dictated that
holding also require invalidation of Iowa's regulation insofar
as it prohibits 65-foot doubles.
The reasoning bringing me to that conclusion does not require, however, that I engage in the debate between my
Brothers PowELL and REHNQUIST over what the District
Court record shows on the question whether 65-foot doubles
are more dangerous than shorter trucks. With all respect,
my Brothers ask and answer the wrong question.
For me, analysis of Commerce Clause challenges to state
regulations must take into account three principles: (1) The
courts are not empowered to second-guess the empirical judgments of lawmakers concerning the utility of legislation.
(2) The burdens imposed on commerce must be balanced
against the local benefits actually sought to be achieved by
the State's lawmakers, and riot against those suggested after
the fact by counsel. (3) Protectionist legislation is unconstitutional under the Commerce Clause, even if the burdens
and benefits are related to safety rather than economics.
JUSTICE BRENNAN,
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CHAMBERS OF
JUSTICE POTTER STEWART
January 12, 1981
Re: No. 79-1320, Kassell v.
Consolidated Freightways Corp.
Dear Lewis,
I shall wait to see what Bill Rehnquist
writes. It seems to me that the fallacy of the
reasoning of the district court and the court of
appeals, as well as of your Memorandum, if I may
say so, lies in the assumption that what is relevant here is a comparison between the 55-foot singles
and the 65-foot doubles. I think, rather that the
relevant inquiry is whether truck length is related
to safety, and, if so, whether a 60-foot length is
a rational line for a State to draw.
Sincerely yours,
Ps,Justice Powell
Copies to the Conference
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CHAMBERS OF
JUSTICE POTTER STE WAR
February 2, 1981
Re: 79-1320 - Kassel v. Consolidated
Freightways Corp.
Dear Bill:
I am glad to join your opinion for the
Court.
Sincerely yours,
Justice Rehnquist
Copies to the Conference
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CHAMBERS OF
JUSTICE BYRON R. WHITE
January 23, 1981
Re: 79-1320: Kassell v.
Consolidated Freightways
Dear Chief,
Because this case has been reassigned, I
thought I should say that until now I had not
responded to Lewis' memorandum and that I am
impressed with what he has done. It has been a
close case for me, but my vote now is to agree
with Lewis.
Sincerely yours,
The Chief Justice
Copies to the Conference
February 2, 1981
Corp.
:a1 dispute between
I also think that
s not that which
this Court follow,
_
:ifically rejected
the "rational relation" test applied in Barnwell and also
rejected that aspect of Barnwell that "would suggest that no
showing of burden on interstate commerce is sufficient to
invalidate local safety regulations in the absence of some
element of discrimination against interstate commerce." 434 U.S.
at 443. Instead, Raymond followed Bibb in adopting a "balancing
test": "we cannot accept the State's contention that the inquiry
under the Commerce Clause is ended without a weighing of the
asserted safety purpose against the degree of interference with
interstate commerce." Id. This does not mean that a Court is to
sit as a super-legislature and reweigh costs and benefits of
safety regulations. It does mean, however, that a court must
look to more than the rationality of the regulation, as
"rationality" has been interpreted in equal protection cases.
Rather, the court must look to see if the benefits in terms of
increased saftey are more than negligible and if the effect on
interstate commerce is significant: it is a cost/benefit analysis
February 2, 1981
No. 79-1320, Kassel v. Consolidated Freightways Corp.
Mr. Justice,
I think that there is a genuine ideological dispute between
Justices Powell and Rehnquist in this case. I also think that
the approach suggested by Justice Rehnquist is not that which
this Court followed in Raymond. Raymond specifically rejected
the "rational relation" test applied in Barnwell and also
rejected that aspect of Barnwell that "would suggest that no
showing of burden on interstate commerce is sufficient to
invalidate local safety regulations in the absence of some
element of discrimination against interstate commerce." 434 U.S.
at 443. Instead, Raymond followed Bibb in adopting a "balancing
test": "we cannot accept the State's contention that the inquiry
under the Commerce Clause is ended without a weighing of the
asserted safety purpose against the degree of interference with
interstate commerce." Id. This does not mean that a Court is to
sit as a super-legislature and reweigh costs and benefits of
safety regulations. It does mean, however, that a court must
look to more than the rationality of the regulation, as
"rationality" has been interpreted in equal protection cases.
Rather, the court must look to see if the benefits in terms of
increased saftey are more than negligible and if the effect on
interstate commerce is significant: it is a cost/benefit analysis
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CHAMBERS OF
JUSTICE THURGOOD MARSHALL
February 19, 1981
Re: No. 79-1320 - Kassel v. Consolidated
Freightways Corp. of Delaware
Dear Bill:
Please join me.
Sincerely,
T .M.
Justice Brennan
cc: The Conference
November 17, 1980
Re: No. 19-1320 - Ka el v. Consolidated Freightways
Corporation of Delaware
B ill:
shall be glad to undertake the dissent in this case.
Sincerely,
Mr. Justice Brennan
cc: Mr. Justice Stevens
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CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
January 27, 1981
Re: No. 79-1320 - Kassel v. Consolidated Freightways Corp.
Dear Lewis:
Since I voted at conference to affirm in this case, I am
sympathetic to the memorandum you have prepared. I certainly
shall be with you at least in the result.
You will recall that while I joined your opinion in Raymond
Motor, I wrote separately and was joined by the Chief, Bill
Brennan, and Bill Rehnquist, 434 U.S., at 448. My primary
concern was to emphasize that "if safety justifications are not
illusory, the Court will not second-guess legislative judgment
about their importance in comparison with related burdens on
interstate commerce." Id., at 449.
I concluded that safety
interests had not been shown in Raymond Motor to exist as a
matter of law.
I think you have demonstrated in your memorandum that the
same situation prevails in the present case. If you could
emphasize sTmLILIEts2-1§111alanalng is inapRropriate in a case
in which
e evidence shows that the regulation actually promotes
safety, I might well be persuaded to join you.
I wonder, also, whether something could be done to comfort
my old colleague, J. Smith Henley, who wrote dubitante below, 612
F.2d, at 1071. Smith, as he states, id., at 1072, was "a member
of a district court twice reversed in the Brotherhood litigation"
(the Arkansas "full-crew" provision), is still sensitive, and
obviously feels that the Brotherhood rulings have been bypassed.
If they could be explained or distinguished, I suspect it would
comfort him and, in addition, be worth doing.
I am sending a copy of this to Bill Brennan who also voted
to affirm.
Sincerely,
Mr. Justice Powell
cc: Mr. Justice Brennan
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Vasitingfort,
February 3, 1981
CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
Re: No. 79-1320 - Kassel v. Consolidated Freightways
Dear Lewis:
Would you consider an additional footnote substantially
to the following effect:
"Firemen v. Chicago, R. I. & P. R. Co., 393
U.S. 129 (1968), in its result, although perhaps
not in all of its language, is not inconsistent
with the conclusion we reach today. There, the
Arkansas 'full-crew' laws were upheld against
constitutional challenge because the Court easily
perceived that they made nonillusory contributions
to safety. See id., at 136-138. In contrast, in
Raymond, there was no such evidence. See 434 U.S.,
at 444-446. Raymond signaled no retreat from the
Firemen Court's refusal to balance the benefits of
a regulation that actually promotes safety against
the burden imposed upon interstate commerce by the
regulation. If a regulation actually promotes
safety, our inquiry is at an end. That is not the
case here."
This note could be dropped either at the end of Part
IIIA on page 10, or following the citation of Raymond in the
fourth line of the present page 14.
If you can see your way clear to do this, you have my
joinder in your recirculation of January 30.
Sincerely,
Mr. Justice Powell
cc: The Conference
V
Revrence (Court of *Pita „stated
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February 5, 1981
CHAMBERS OF
JUSTICE HARRY A. BLACKMUN
Re: No. 79-1320 - Kassel v. Consolidated Freightways
Dear Lewis:
Your formulation of the proposed footnote, as set forth
in your letter of today, certainly is acceptable to me.
Sincerely,
Mr. Justice Powell
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Pasitingtort,
Q. 2.og43
CHAMBERS OF
JUSTICE LEWIS F. POWELL, JR.
December 15, 1980
79-1320 Kassel v. Condolidated Freightways Corp.
Dear Chief:
You assigned the writing of a Court opinion in
this case to me. According to my notes, the Conference vote
was 6 to 3 to reverse the Court of Appeals decision that the
Iowa statute banning "65-foot doubles" from state highways
was invalid.
I have had difficulty with the opinion. Over the
weekend, I took a closer at the record than I had
previously. You will recall that the District Court found.
"The evidence convincingly, if not overwhelmingly,
established that the 65-foot twin is as safe as,
if not safer than, the 60-foot twin and the 55foot semi. .
CA8 affirmed, bolding that the DC's findings as to the
relative safety of 65-foot doubles were clearly erroneous.
At the time of our Conference consideration, I
thought there was substantial evidence supporting the
state's view that the 65-foot trucks presented a greater
threat to a safety than the 60-foot vehicles. I am now
persuaded that apart from some general, undocumented
opinions of experts, there is virtually no evidence
supporting this view. In light of the traditional deference
accorded state legislation intended to promote safety, I
would certainly attach some weight to the judgment of the
Iowa legislature. Yet, even this is flawed by the fact that
the Iowa legislature, in 1974, adopted a bill that would
have permitted 65-foot doubles. This was vetoed, however,
by Governor Ray, one of the defendants in this case.
Finally, upon closer examination, although the
exceptions to the ban in Iowa are not quite as extensive as
they were in the Wisconsin statute invalidated in Raymond, I
-•
2.
do not view the difference as being sufficiently significant
to distinguish Raymond on this ground.
In sum, I have concluded reluctantly that my
opinion for the Court in Raymond requires a similar result
in this case. I propose to circulate a memorandum (I hope
before Christmas) that would support an affirmance rather
than reversal of the Court of Appeals. If, however, you or other Justices with whom I voted at Conference - prefer a
reassignment of the case, I will, of course, understand.
I regret my delay in coming to my present
decision. I simply was giving priority to other work.
Sincerely,
The Chief Justice
lfp/ss
cc: The Confernce
L;1,1.: The
1-10-81
1st DRAFT
Chief Justice
Mr. Justice Breanaa
Mr. Justice Stewart
Mr. Justice Vhite
Mr. Justice Marshall
Mr. Justice Blackmun
Mr. Justice Behmuiet
Mr. Justice Stevens
Ar Justice Powell
SUPREME COURT OF THE UNITED giVES •
C irculated : _201-11-121U--No. 79-1320
Recirculated:
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
for the Eighth Circuit.
Consolidated Freightways Corporation of Delaware.
v.
[January —, 1981]
Memorandum of JUSTICE POWELL.
The question is whether an Iowa statute that prohibits
the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
Respondent Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in
the country. It offers service in 48 States under a certificate
of public convenience and necessity issued by the Interstate
Commerce Commission. Among other routes, Consolidated
carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the West
Coast, and on Interstate 35, a major north-south route.
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," is 55 feet in
length overall. Such trucks have long been used on the
Nation's highways. Consolidated also uses a two-axle tractor
pulling a single-axle trailer which, in turn, pulls a single-axle
dolly and a second single-axle trailer. This combination,
known as a double, or twin, is 65 feet long overall.' Many
1 For an illustration of the differences between singles and doubles, see
rAkoexeS -C-1,„A. noir 5
Chief Justice
Mr. Justice Brennan
ttr. Justine Stewart
Mr. Justine White
Mr. :uatioe
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Vv. Zuetioo Mambo=
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1-15-81
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2nd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for
the Eighth Circuit.
Consolidated Freightways Cor-
poration of Delaware.
[January —, 1981]
Memorandum of JUSTICE POWELL.
The question is whether an Iowa statute that prohibits
the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
I
Respondent Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in
the country. It offers service in 48 States under a certificate
of public convenience and necessity issued by the Interstate
Commerce Commission. Among other routes, Consolidated
carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the West
Coast, and on Interstate 35, a major north-south route.
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," is 55 feet in
length overall. Such trucks have long been used on the
Nation's highways. Consolidated also uses a two-axle tractor
pulling a single-axle trailer which, in turn, pulls a single-axle
dolly and a second single-axle trailer. This combination,
known as a double, or twin, is 65 feet long overall. 1 Many
1 For an illustration of the differences between singles and doubles, see
41 —7, e?, /z,/3,/
Mr. 1%5V:to* vemax
Mr. lustir's Stewurt
Mr. Justice Wats
Mr. Justice Narebellk///
Mr. Justice Bleakuun
Mr. Justice Rehequiei
MT. Justice Simms
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1-30-81
Justice Powell
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3rd DRAFT
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
On Appeal from the United
Appellants,
States Court of Appeals
v.
Consolidated Freightways Cor- for the Eighth Circuit.
poration of Delaware.
[January —, 1981]
Memorandum of JUSTICE POWELL.
The question is whether an Iowa statute that prohibits
the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
I
Respondent Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in
the country. It offers service in 48 States under a certificate
of public convenience and necessity issued by the Interstate
Commerce Commission. Among other routes, Consolidated
carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the West
Coast, and on Interstate 35, a major north-south route.
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," is 55 feet in
length overall. Such trucks have long been used on the
Nation's highways. Consolidated also uses a two-axle tractor
pulling a single-axle trailer which, in turn, pulls a single-axle
dolly and a second single-axle trailer. This combination,
known as a double, or twin, is 65 feet long overall.' Many
IL For an ilustration of the differences between singles and doubles, see'
February 5, 1981
No. 79-1320 Kassel v. Consolidated Freightways
Dear Harry:
Thank you for your letter of February 4, with the
suggestion that I consider adding a footnote substantially
along the lines of your draft. What do you think of the
following language for such a footnote?
"Firemen v. Chicago, R. I. & P. R. Co.,
393 U.S. 129 (1968), in its result, although
perhaps not in all of its language, is
consistent with the conclusion we reach
today. There, the Arkansas 'full-crew' laws
were upheld against constitutional challenge
because the Court easily perceived that they
made nonillusory contributions to safety.
See id., at 136-138. In contrast, here as in
Raymond, there was no such evidence. This
case and Raymond recognize, as the Court did
in Fireman, that States constitutionally may
enact laws that demonstrably promote safety,
even when those laws also burden the flow of
commerce.
My problem is that I do not think it appropriate to
depart from what I wrote, and the Court adopted, in Raymond.
We did recognize - both in the Court opinion and your
concurring opinion - that a weighing or balancing may be
necessary in cases of this kind, but emphasized the strong
presumption in favor of validity of safety regulations
unless - as my draft opinion states - they are illusory. My
revision is somewhat more general than your suggestion, and
therefore may be less likely to be viewed as stating a
standard different from that of Raymond. Yet, I do not
think your suggestion is different in substance. Indeed,
these cases often end up being "judgment" calls, however we
phrase our opinions. Raymond and this case (despite WHR's
2.
reading of the record) are relatively easy because of the
absence of any significant safety showing.
Byron and John have joined me. As Byron voted
tentatively the other way at Conference, I would hesitate to
make a change without his consent that might cause him to
defect. I do not believe the above addition would trouble
them. I have not heard from WJB who voted to affirm at
Conference. But if you can accept the above language, I'll
circulate it and see how it "sells".
Sincerely,
Mr. Justice Blackmun
LFP/lab
Copies to the Conference
t 10
Ki2A4.44•0•4)*--o-e.c34_
Tor The Chief Justiu,
W. Justice Brennan
Mr. Justice Stewart
1b. justice White
ar. Justice Marshall
Mr. Justice Blaohlun
NT. Justice Rehnquist
Mr. Justice Stevens
Prow Mr. Justice Powell
2-6-81
cirataated!
ikoireraiated :
4th DRAFT
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
On Appeal from the United
Appellants,
States Court of Appeals
v,
for the Eighth Circuit.
Consolidated Freightways Con. poration of Delaware.
[February —, 19811
JUSTICE POWELL, With whom JUSTICE WHITE, JUSTICE
BLACKMUN, and JUSTICE STEVENS join,
dissenting.
The question is whether an Iowa statute that prohibits
the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
Respondent Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in
the country. It offers service in 48 States under a certificate
of public convehience and necessity issued by the Interstate
Commerce Commission. Among other routes, Consolidated
carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the West
Coast, and on Interstate 85, a major north-south route.
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," i8 55 feet in
length overall. Such trucks have long been used on the
Nation's highways. Consolidated also uses a two-axle tractor
pulling a single-axle trailer which, in turn, pulls a single-axle
dolly and a second single-axle trailer. This combination,
known as a double, or twin, is 65 feet long overa11. 1 Many
I RA. an illustration of the differences between singles and doubles, see
198f
1191/ O)/ qd
Xo:
The Chief Justice
Mr. Justice Breath
Mr. Justice Stewart
Mr. Justice White
Mr. Justice
Mareha21 4/
kr. Justice
Bl
aokmux
Mtr•
Justice Rahng
uiet
ftr. Justice
Stevens
&CVO nr. J
ustice Powell
3-2-81
waited:
5th DRAFT
flootroulated MAR
:
2
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
v.
States Court of Appeals
for the Eighth Circuit.
Consolidated Freightways Cor- poration of Delaware.
[March —, 1981]
announced the judgment of the Court and
delivered an opinion in which JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS joined.
JUSTICE POWELL
The question is whether an Iowa statute that prohibits
the use of certain large trucks within the State unconstitutionally burdens interstate commerce.
Respondent Consolidated Freightways Corporation of Delaware (Consolidated) is one of the largest common carriers in
the country. It offers service in 48 States under a certificate
of public convenience and necessity issued by the Interstate
Commerce Commission. Among other routes, Consolidated
carries commodities through Iowa on Interstate 80, the principal east-west route linking New York, Chicago, and the West
Coast, and on Interstate 35, a major north-south route.
Consolidated mainly uses two kinds of trucks. One consists of a three-axle tractor pulling a 40-foot two-axle trailer.
This unit, commonly called a single, or "semi," is 55 feet in
length overall. Such trucks have long been used on the
Nation's highways. Consolidated also uses a two-axle tractor
pulling a single-axle trailer which, in turn, pulls a single-axle
dolly and a second single-axle trailer. This combination,
1991
a
ajourt tilt Anittit ,gtertf
*toltington,
2rfptg
CHAMBERS OF
JUSTICE WILLIAM H. REHNQUIST
January 12, 1981
Re: No. 79-1320 Kassel v. Consolidated Freightways
Corporation of Delaware
Dear Lewis,
If none of my seniors who favored upholding the Iowa
statute in this case do so I shall in due time circulate
a dissent.
Sincerely,
rr-
Mr. Justice Powell
cc: The Conference
a
7
C
c.
To: The Chief Justice
Mr. Justice Brennan
Mr. Justice Stewart
Mr. Justice White
Mr. Justice Marshall
Mr. Justice Blackmun
Mr. Justice Powell
Mr. Justice Stevens
From: Mr. Justice
1st DRAFT
Circulated
Recirculated:
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for the Eighth Circuit.
Consolidated Freightways Cor-
poration of Delaware.
[February —, 1981]
delivered the opinion of the Court.
The question presented by this appeal is whether an Iowa
statute limiting the length of trucks which may travel on
public highways in Iowa is unconstitutional under the Commerce Clause.
JUSTICE REHNQUIST
Iowa, like every other State in the Union, regulates the
length of vehicles permitted to operatecin its highways. The
Iowa Legislature first enacted a law restricting vehicle lengths
half a century ago, and has increased the permitted length of
various classes of vehicles several times, most recently last
year. See 15A Iowa Code Ann. 249 (West 1966); 1980 Iowa
Legis. Serv. 80-87 (West). When this litigation began the
maximum permitted length for a combination truck-tractor
and single trailer, the familiar "semi" or "single," was 55 feet.
Mobile homes, trucks carrying farm equipment and those
hauling livestock were permitted up to 60 feet, as were the
subjects of this case, "doubles" or "twins" consisting of a
truck-tractor hauling two single-axle trailers connected by a
single-axle dolly. Iowa Code § 321.457 (1979). After trial
and decision by the Court of Appeals, the Iowa Legislature
molded its statute to permit all semis up to 60 feet. 1980
lt;iLk
Rehm
=.1-1
To: The
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Chief Justice
Justice Brennan
Justice Stewart
Justice White
Justice Marshall
Justice Blackmun
Justice Powell
Mr. Justice Stevens
From: Mr. Justice Rehnquist
Circulated:
2nd DRAFT
Recirculated:
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
On Appeal from the Uaite4
Appellants,
States Coprt of Appeals
v.
ponsolidated Freightways Corr for the Eighth Qiicuit.
portion of Delaware.
[February —, 1981]
JUSTICE REHNQUIST delivered
the opinion of the Court.
The question presented by this appeal is whether an Iowa
statute limiting the length of trucks which may travel on
public highways in Iowa is unconstitutional under the Commerce Clause.
Iowa, like every other State in the Union, regulates the
length of vehicles permitted to operate on its highways. The
Iowa Legislature first enacted a law restricting vehicle lengths
half a century ago, and has increased the permitted length of
various classes of vehicles several times, most recently last
year. See 15A Iowa Code Ann. 249 (West 1966); 1980 Iowa
Legis. Serv. 80-87 (West). When this litigation began the
maximum permitted length for a combination truck-tractor
and single trailer, the familiar "semi" or "single," was 55 feet.
Mobile homes, trucks carrying farm equipment and those
hauling livestock were permitted up to 60 feet, as were the
subjects of this case, "doubles" or "twins" consisting of a
truck-tractor hauling two single-axle trailers connected by a
single-axle dolly. Iowa Code § 321.457 (1979). After trial
and decision by the Court of Appeals, the Iowa Legislature
amended its statute to permit all semis up to 60 feet. 1980
Gr p
ifl
1RP9
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
Mr.
1-5 lo
1a04 ‘
14,-13
Justice
Justice
Justice
Justice
Justice
Justice
Justice
Brennan
Stewart
White
Marshall
Blackmun
Powell
Stevens
From: Mr. Justice Rehnquist
Circulated
3rd DRAFT
Rcirculated:
SUPREME COURT OF THE UNITED STATES
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for the Eighth Circuit .
Consolidated Freightways Corporation of Delaware.
[February —, 1981]
with whom THE CHIEF JUSTICE and
join, dissenting.
The result in this case suggests, to paraphrase Justice Jackson, that the only state truck length limit "that is valid is one
which this court has not been able to get its hands on."
Jungersen v. Ostby & Barton Co., 335 U. S. 560, 572 (1949)
(dissenting opinion). Although the plurality and concurring
opinions strike down Iowa's law by different routes, I believe
the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause,"
Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129, 136 (1968), and seriously intrudes upon the fundamental right of the States to
pass laws to secure the safety of their citizens. Accordingly,
I dissent.
I
It is necessary to elaborate somewhat on the facts as presented in the plurality opinion to appreciate fully what the
Court does today. Iowa's action in limiting the length of
trucks which may travel on its highways is in no sense unusual. Every State in the Union regulates the length of
vehicles permitted to use the public roads. Nor is Iowa a
renegade in having length limits which operate to exclude
the 65-foot doubles favored by Consolidated. These trucks
JUSTICE REHNQUIST,
JUSTICE STEWART
FEB 26 19E0
2:J
0
The Chief Justice
vir Just 1 cc: Breanap
Justi ce Stewart
Justici, Wblte
Just ice ';arrhal
r. Just
J.st
4th DRAFT
ter.
SUPREME COURT OF THE UNITED STrAtt§'''
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
States Court of Appeals
v.
for the Eighth Circuit,
Consolidated Freightways Corporation of Delaware.
[February —, 1981]
JUSTICE REH/sTQUIST, with Whom THE CHIEF JUSTICE and
JUSTICE STEWART join, dissenting.
The result in this case suggests, to paraphrase Justice Jackson, that the only state truck length limit "that is valid is one
which this court has not been able to get its hands on."
Jungersen v. Ostby & Barton. Co., 335 U. S. 560, 572 (1949)
(dissenting opinion). Although the plurality and concurring
opinions strike down Iowa's law by different routes, I believe
the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause;"
Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 303 U. S. 129, 136 (1968), and seriously intrudes upon the fundamental right of the States to
pass laws to secure the safety of their citizens. Accordingly,
I dissent.
I
It is necessary to elaborate somewhat on the facts as presented in the plurality opinion to appreciate fully what the
Court does today. Iowa's action in limiting the length of
trucks which may travel on its highways is in no sense unusual. Every State in the Union regulates the length of
vehicles permitted to use the public roads. Nor is Iowa a
renegade in having length limits which operate to exclude
the 65-foot doubles favored by Consolidated. These trucks
T
7 rkmui.
10.
11.b
t
t •
Mr. Justice
Mr. Justice
Mr Justice
r. Justice
Mr. Justice
Mr. Justice
Mr. Justice
."
Breci .n
Stewart
White
Marshall
Blackmun
Powell
Stevens
1
P *q
From: Mr. Justioe Rehnquist
Circulated:
5th DRAFT
Peci rculated •
SUPREME COURT OF THE UNITED STATE
No. 79-1320
Raymond Kassel et al.,
Appellants,
On Appeal from the United
v.
States Court of Appeals
Consolidated Freightways Cor- for the Eighth Circuit.
poration of Delaware.
[February —, 1981]
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and
JUSTICE STEWART join, dissenting.
The result in this case suggests, to paraphrase Justice Jackson, that the only state truck length limit "that is valid is one
which this court has not been able to get its hands on."
Jungersen v. Ostby & Barton Co., 335 U. S. 560, 572 (1949)
(dissenting opinion). Although the plurality and concurring
opinions strike down Iowa's law by different routes, I believe
the analysis in both opinions oversteps our "limited authority to review state legislation under the commerce clause,"
Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129, 136 (1968), and seriously intrudes upon the fundamental right of the States to
pass laws to secure the safety of their citizens. Accordingly,
I dissent.
I
It is necessary to elaborate somewhat on the facts as presented in the plurality opinion to appreciate fully what the'
Court does today. Iowa's action in limiting the length of
trucks which may travel on its highways is in no sense unusual. Every State in the Union regulates the length of
vehicles permitted to use the public roads. Nor is Iowa a
renegade in having length limits which operate to exclude
the 05-foot doubles favored by Consolidated. These trucks
'
4
,Onpreutt (Court of
ittevuiter 2.tutto
gragfitinont, Q. zog4g
CHAMBERS OF
JU STICE JOHN PAUL S EVENS
January 13, 1981
Re: 79-1320 - Kassel v. Consolidated
Freightways
Dear Lewis:
Potter's letter prompts me to write to say that
prior to the Court's decision in Raymond Motor I
thought--as he still does--that "the relevant inquiry
is whether truck length is related to safety, and, if
so, whether a 60-foot length is a rational line for a
State to draw." Since the Court rejected that approach
in Raymond (without any help from me), I think your
memorandum applies the only analysis that remains open
to us.
I
Accordingly, with two minor requests, I am
prepared to join you. Both of my problems are on page
8.
First, because I have always been uncertain how
would have voted in Raymond, would you insert a
footnote in your reference to the "unanimous Court"
indicating that I did not participate.
Second, in the third line from the bottom of the
first full paragraph on page 8, instead of referring to
a safety interest that "appears illusory," I would be
happier if you could strenghten it by saying something
like an interest that "has been found to be illusory"
or something similar.
Respectfully,
Justice Powell
.:§ivrttitt (Conti o f tivrnitrZt ,tatris
Pnoltitt4AtInt,
cc.
2eg4g
CHAMBERS OF
JUSTICE JOHN PAUL STEVENS
January 13, 1980
Re: 79-1320 - Kassel v. Consolidated
Freightways
Dear Lewis:
Please join me.
Respectfully,
Justice Powell
Copies to the Conference