WASHINGTON -- Following are excerpts from the Supreme Court's decision Thursday overturning a Chicago ordinance on loitering. The vote in Chicago v. Morales was 6 to 3. Justice John Paul Stevens wrote the majority opinion, which was signed by Justices David H. Souter and Ruth Bader Ginsburg.

Justice Sandra Day O'Connor wrote a concurring opinion, which was also signed by Justice Stephen G. Breyer. Justice Anthony M. Kennedy wrote a concurring opinion.

Justice Antonin Scalia wrote a dissent, as did Justice Clarence Thomas. Chief Justice William H. Rehnquist and Justice Scalia both signed Justice Thomas's dissent. Where italics are used, they follow the emphasis of the original.

FROM THE DECISION
By Justice Stevens

The basic factual predicate for the city's ordinance is not in dispute.

As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business.

That, in turn, imperils community residents' sense of safety and security, detracts from property values and can ultimately destabilize entire neighborhoods." The findings in the ordinance explain that it was motivated by these concerns.

We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional, but this ordinance broadly covers a significant amount of additional activity.

Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague. . . .

While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. . . .

On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the due process clause of the 14th Amendment.

We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. . . .

Vagueness may invalidate a criminal law for either of two independent reasons.

First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.

Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.

"It is established that a law fails to meet the requirements of the due process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits." The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, but the definition of that term in this ordinance "to remain in any one place with no apparent purpose" does not.

It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." . . .

Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. . . .

The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do." We find this response unpersuasive for at least two reasons.

First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law.

"No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.

If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty.

If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham. Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse.

Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.

Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." This vague phrasing raises a host of questions.

After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." We remarked in Connally that "both terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles."

Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted.

The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." . . .

The broad sweep of the ordinance also violates "the requirement that a legislature establish minimal guidelines to govern law enforcement."

There are no such guidelines in the ordinance.

In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent.

The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes.

It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may indeed, she "shall" order them to disperse.

FROM THE DISSENT
By Justice Scalia

The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.

The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right and by discerning vagueness where, according to our usual standards, none exists. . . .

Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from the petitioner, who can defeat the respondents' facial challenge by conjuring up a single valid application of the law.

My contribution would go something like this: Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby.

Officer Krupke, applying the Ordinance at issue here, orders the group to disperse.

After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement not entirely coherent, but evidently intended to be rude "Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order.

Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming.

That should settle the matter of respondents' facial challenge to the Ordinance's vagueness.

None of the three factors that the plurality relies upon exists anyway.

I turn first to the support for the proposition that there is a constitutionally protected right to loiter. . . .

Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." But using the term in that sense utterly impoverishes our constitutional discourse.

We would then need a new term for those activities such as political speech or religious worship that cannot be forbidden even with rational basis.

The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter.

Justice Thomas recounts the vast historical tradition of criminalizing the activity.

It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the 14th Amendment.

For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result.

Its opinion blithely proclaims: "Neither this history nor the scholarly compendia in Justice Thomas's dissent, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the due process clause." The entire practice of using the due process clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called "substantive due process") is in my view judicial usurpation.

But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion.

In Washington v. Glucksberg, we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "our nation's history, legal traditions, and practices." The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive due process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition, and the (transparently erroneous) assertion that the City of Chicago appears to have conceded the point.

It is enough for the members of the plurality that "history [fails to] persuade us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the due process clause," (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.