with whom Justice Marshall joins, dissenting.
The Court today concludes that it has mandatory jurisdiction pursuant to 28 U. S. C. § 1252 directly to review the District Court’s entry of a preliminary injunction restraining the Government from enforcing the provisions of 38 U. S. C. §§3404 and 3405 pending a full trial on the merits of appel-lees’ contention that those statutes violate the First and *339Fifth Amendments. Ante, at 316-319.1 The Court then proceeds to sustain the constitutionality of those statutes on the ground that “the process allows a claimant to make a meaningful presentation” on behalf of his claim for service-connected death and disability benefits even without the assistance of his attorney. Ante, at 335. The Court having reached this issue, I feel constrained to note my strong disagreement on the merits for the reasons eloquently set forth in Justice Stevens’ dissent, which I join.
I write separately, however, because I believe the Court’s exercise of appellate jurisdiction in this case is not authorized by § 1252. Because the District Court’s interlocutory order granting a preliminary injunction did not constitute a decision striking down the challenged statutes on constitutional grounds, appellate review of the propriety and scope of the preliminary injunction instead rests initially in the Court of Appeals for the Ninth Circuit pursuant to 28 U. S. C. § 1292(a)(1), from which review in this Court could then be sought through a petition for a writ of certiorari. The Court’s decision to the contrary is wholly inconsistent with the purpose and history of § 1252, well-established principles respecting interlocutory review of preliminary injunctions, and common sense.
I
The District Court did not hold that §§3404 and 3405 are unconstitutional either on their face or as applied. Instead, for purposes of considering the appellees’ motion for a pretrial preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure, it found that appellees had *340“demonstrated a high likelihood of prevailing” on the merits of their due process and First Amendment challenges. 589 F. Supp. 1302, 1323 (ND Cal. 1984); see also id., at 1307, 1327, 1329. The court then weighed the potential for irreparable injury and the balance of hardships in light of this likelihood of success. It found that the appellees had “shown the irreparable injury necessary to obtain injunctive relief” and concluded that “the balance of hardship also weighs heavily in [their] favor.” Id., at 1329.2 Accordingly, the court entered a broad preliminary injunction restraining enforcement of the challenged statutes “pending a trial on the merits of the above-entitled action.” Ibid. As this Court was advised at oral argument, the appellees contemplate further extensive *341discovery and a full trial on the underlying First and Fifth Amendment issues. Tr. of Oral Arg. 31-32.3
Contrary to the Court’s assertion, there is much more than a “semantic difference” between a finding of likelihood of success sufficient to support preliminary relief and a final holding on the merits. Ante, at 317. Until today, the Court always has recognized that district court findings on “likelihood of success on the merits” are not “tantamount to decisions on the underlying merits”; the two are “significantly different.” University of Texas v. Camenisch, 451 U. S. 390, 393-394 (1981). Preliminary injunctions are granted on the basis of a broad “balance of factors” determined through “procedures that are less formal and evidence that is less complete than in a trial on the merits,” and the parties are accorded neither “a full opportunity to present their cases nor ... a final judicial decision based on the actual merits of a controversy.” Id., at 395-396 (emphasis added). District court orders granting preliminary injunctions may therefore be reviewed only on an abuse-of-discretion standard: an appellate court may conclude that the district court’s preliminary relief sweeps too broadly, or is based on an improper balancing of hardships, or even that the likelihood of success has been overdrawn. See generally Doran v. Salem Inn, Inc., 422 U. S. 922, 931-932 (1975); Brown v. Chote, 411 U. S. 452, 457 (1973). But under the abuse-of-discretion standard, appellate courts obviously may “intimate no view as to the ultimate merits” of the underlying controversy. Doran v. Salem Inn, Inc., supra, at 934; Brown v. Chote, supra, at 457.4 For several reasons, this is particularly true *342where “grave, far-reaching constitutional questions” are presented: the records developed in preliminary-injunction cases are “simply insufficient” to allow a final decision on the merits; as a matter of fairness the litigants are entitled to a full evidentiary presentation before a final decision is reached; and where questions of constitutional law turn on disputed fact,5 such decisions must initially be rendered by a district court factfinder. Brown v. Chote, supra, at 457.
Section 1252 does not empower this Court directly to police the preliminary-injunctive process in the district courts. Instead, it was enacted to ensure the “prompt determination by the court of last resort of disputed questions of the constitutionality of acts of the Congress.”6 Whether one relies on *343the codified language — permitting a direct appeal from a lower-court decision “holding an Act of Congress unconstitutional”7 — or on the original language of the statute — permitting a direct appeal where “the decision is against the constitutionality of any Act of Congress”8 — it is obvious that *344§ 1252 contemplates a fully consummated lower-court decision of unconstitutionality so that this Court may carry out the statutory purpose of rendering a prompt and dispositive determination respecting the constitutionality of the challenged legislation. Jurisdiction pursuant to § 1252 accordingly is proper only where “the basis of the decision below in fact was that the Act of Congress was unconstitutional,” United States v. Raines, 362 U. S. 17, 20 (1960) (emphasis added)9 — and “likelihood” simply does not equate with “in fact.” Where a district court merely has concluded that there is a “likelihood” of unconstitutionality sufficient to support temporary relief, § 1252’s underlying purpose cannot be fulfilled because this Court (if faithful to precedent) cannot resolve the “ultimate merits” of the underlying constitutional issue. Doran v. Salem Inn, Inc., 422 U. S., at 934; Brown v. Chote, 411 U. S., at 457. Instead, all the Court could do would be to consider whether the nature or scope of preliminary relief constituted abuses of discretion, and perhaps to disagree with the district court respecting the “likelihood” that the appellees ultimately would prevail. In my opinion, these questions relating to the supervision of the injunctive process are not subsumed in § 1252 and properly are left in the first instance to the courts of appeals.
The Court argues, however, that because § 1252 explicitly grants jurisdiction to this Court “from an interlocutory or final judgment” of unconstitutionality, Congress surely intended to include preliminary injunctions granted on “likelihood of success” within the scope of § 1252. Ante, at 316-317, 318-319. The Court reinforces this argument by noting *345that all interlocutory decisions, even if cast in dispositive terms, “are subject to revision” before entry of final judgment. Ante, at 317. This argument is wholly unpersuasive. As demonstrated by the large body of precedent applying 28 U. S. C. §§ 1291 and 1292(a), there is a substantial difference between interlocutory decisions that are “tentative, informal or incomplete”10 and those that for all practical purposes “conclusively determine the disputed question.”11 Interlocutory decisions falling within the latter category may, in a small set of circumstances, be immediately appealed because they represent “fully consummated decisions” on the matter in question that are capable of being reviewed and disposi-tively affirmed or reversed.12 The “bare fact”13 that every order short of a final decree is theoretically “subject to reopening at the discretion of the district judge” is insufficient to preclude review in these circumstances.14 Instead, interlocutory appeals to the courts of appeals pursuant to §§ 1291 and 1292(a) are proper when no further consideration of the disputed issue is contemplated by the district court and when, as a practical matter, there is “no basis to suppose” that the resolution is anything less than definite.15
Where the disputed decision “remains open, unfinished or inconclusive,” on the other hand, it is well established that under §§1291 and 1292(a) “there may be no intrusion by appeal” of the unresolved issue.16 The reasons are manifest. If the appellate court addressed the issue in such an inconclu*346sive posture, it either would render an advisory opinion that had no binding effect or, if binding effect were intended, would usurp the authority of the district court to pass on the issue in the first instance. “Appeal gives the upper court a power of review, not one of intervention.”17
This elementary distinction applies with direct force to appeals pursuant to § 1252.18 Where a district court issues an interlocutory order based on a fully consummated determination that a federal statute is unconstitutional, an appeal is proper because the constitutional question can authoritatively be decided with dispatch. Thus in Fleming v. Rhodes, 331 U. S. 100, 102 (1947), the District Court had denied preliminary relief enjoining the eviction of tenants on the ground that the federal statute prohibiting the evictions was unconstitutional. And in McLucas v. DeChamplain, 421 U. S. 21, 26-27 (1975), the District Court for the District of Columbia had preliminarily enjoined the enforcement of a statute in reliance on a decision by the Court of Appeals for the District of Columbia Circuit that the statute was unconstitutional— “a decision,” we noted, that was “binding on the District Court,” id., at 28. In neither case was there any basis to believe that the interlocutory holding of unconstitutionality was anything but final.
On the other hand, we have never in the 48-year history of § 1252 assumed jurisdiction where the district court had done no more than simply determine that there was a “likelihood” of unconstitutionality sufficient to support temporary relief pending a final decision on the merits. Because such deter*347minations are inherently “open, unfinished [and] inconclusive,” 19 the only proper questions for immediate appellate consideration would be whether the entry and scope of preliminary relief were abuses of discretion. But such review is not the purpose of § 1252 because, as the Court today concedes, “it was the constitutional question that Congress wished this Court to decide.” Ante, at 318 (emphasis added).20 If the Court did address the constitutional issue in these circumstances, it either would be rendering an advisory opinion subject to revision once the district court reached the merits or, to the extent it purported to pass on the issue with finality, would be exercising a forbidden “power ... of intervention” rather than of review.21 We have long recognized that such intervention is barred under §§ 1291 and 1292(a), and should have so recognized here as well.22
*348The Court contends, however, that the District Court in this case enjoined the challenged statute “across the country and under all circumstances,” and that immediate mandatory appeal to this Court therefore “is in accord with the purpose of the statutory grant” — provision of “an expeditious means for ensuring certainty and uniformity in the enforcement of such an Act.” Ante, at 318-319. See also ante, at 336-337 (O’Connor, J., concurring). Congress unquestionably intended by §1252 to provide an “expeditious” means for resolving constitutional questions,23 but an appeal is proper only when it is those questions themselves that have been decided — a condition not met in preliminary-injunction cases where, as here, we may “intimate no view as to the ultimate merits” of the underlying controversy. Doran v. Salem Inn, Inc., 422 U. S., at 934.
Moreover, the Court’s reasoning sweeps both too narrowly and too broadly. It sweeps too narrowly because mandatory jurisdiction pursuant to § 1252 is not confined to district court decisions striking down statutes “across the country and under all circumstances.” Ante, at 319. See also ante, at 336 (O’Connor, J., concurring). We have instead long recognized that § 1252 requires that we review decisions that simply invalidate challenged statutes even as applied only to particular individuals in particular circumstances.24 Allow*349ing an immediate appeal in these circumstances is thought to further the “great public interest” in securing “prompt determinations” of the validity of lower court precedent that might have binding effect in cases beyond the one at hand.25 Where a district court simply has granted a preliminary injunction — or for that matter a temporary restraining order26 — barring enforcement of a statute as applied to certain individuals, the precedential effect is far more obscure. Such orders are based on a case-specific balancing of the equities that may well not carry over into other situations. It is simply too burdensome for this Court to bear mandatory direct jurisdiction over every preliminary injunction, temporary restraining order, and other pretrial order in cases potentially implicating the constitutionality of federal statutes. The Court might respond that § 1252 appeals in this context can be limited to preliminary relief having nationwide impact, but this would be bootstrap reasoning without support in our precedents: the propriety of an appeal under § 1252 turns not on the scope of the potential impact, but on the underlying nature of the district court’s determination.27
*350The Court’s reasoning sweeps too broadly because there are means other than an expansive reading of §1252 to ensure that improvident district court injunctions based on “likelihood of success” do not impede the effective functioning of the Federal Government. As Congress has emphasized, “[s]wift judicial review can be had in cases where the public interest requires it” through means short of mandatory appeals jurisdiction.28 Pursuant to 28 U. S. C. § 1292(a), for example, the courts of appeals may promptly review district court orders granting or denying preliminary injunctions. Courts of appeals routinely supervise the trial-court injunc-tive process and are therefore in a far superior position to pass initially on questions of irreparable injury, balance of hardships, and abuse of discretion.29 Moreover, if the question whether a district court abused its discretion in issuing preliminary relief “is of such imperative public importance as to justify the deviation from normal appellate practice and to require immediate settlement in this Court,” this Court’s Rule 18, certiorari review can be obtained before the court of appeals renders judgment. See 28 U. S. C. § 2101(e). This Court has not hesitated to exercise this power of swift intervention in cases of extraordinary constitutional moment and *351in cases demanding prompt resolution for other reasons.30 Under this procedure, the Court has discretion to limit immediate review to exceptional cases and to leave initial review of most matters in the courts of appeals — which of course “recognize the vital importance of the time element” in constitutional challenges involving the granting or denial of interlocutory relief.31 Under today’s construction of § 1252, however, the Court has no such discretion and accordingly has, I respectfully submit, expanded its mandatory docket to matters that we have no business resolving in the first instance.
One final consideration, based on the history of §1252 and related provisions, sheds further light on the fallacy of the Court’s jurisdictional reasoning. Section 1252 originally was enacted as § 2 of the Judiciary Act of 1937, 50 Stat. 752. Section 3 of that Act created the since-repealed three-judge district court provisions of 28 U. S. C. §2282 (1970 ed.). Section 3 provided that “[n]o interlocutory or permanent injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any Act of Congress” in cases challenging the constitutionality of the Act could be granted unless presented to and resolved by a three-judge district court. That section also contained its own built-in jurisdictional authorization for direct Supreme Court review of any “order, decree, or judgment” issued by *352such a court granting or denying “an interlocutory or permanent injunction in such case.” Moreover, § 3 provided that a single district judge could enter a “temporary stay or suspension, in whole or in part,” of the enforcement of the challenged statute “until decision upon the application,” provided that the applicant made a sufficient showing of, inter alia, “irreparable loss or damage.”32
*353The history of § 3 is relevant to the instant question in two respects. First, this Court has held flatly that temporary relief granted by a single district judge pending the convening of a three-judge court is reviewable in the first instance by the courts of appeals and not on direct appeal to this Court. See, e. g., Hicks v. Pleasure House, Inc., 404 U. S. 1, 3 (1971) (per curiam) (preliminary relief “issued pursuant to [28 U. S. C.] §2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U. S. C. §§1291 and 1292(a)”).33 It would have made no sense to channel appeals of such orders under §3 to the courts of appeals while channeling appeals of identical preliminary orders in cases that might ultimately fall within § 2 to this Court in the first instance.
Second, when Congress repealed §2282 in 197634 it specifically considered the question of the best means for policing the injunctive process in constitutional challenges pending decision on the underlying merits. Whereas review of three-judge interlocutory orders in such cases formerly had been routed directly to this Court, see §§2282, 2283 (1970 ed.), Congress believed that interlocutory review in the courts of *354appeals pursuant to §§ 1291 and 1292(a) would be most consistent with sound judicial administration.
“One other concern of the committee was the review of the granting, or the denial, of a stay of an injunction by a district court. The committee believes that with appeals of these cases clearly vested in the 11 Circuit Courts of Appeal, they will be more able than the Supreme Court to carefully consider and evaluate requests for a stay in these cases and that ample procedures exist to act effectively in these cases. See, 3 Barron and Holtzoff {Wright ed.) §§ 1371-78.” S. Rep. No. 94-204, p. 11 (1975).35
Congress thereby indicated its firm intention to leave monitoring of the equitable injunctive process to the courts of appeals in the first instance, and to reserve mandatory direct Supreme Court review for those cases in which this Court properly could resolve the underlying merits of the constitutional challenges themselves.36
I — < hH
Although deciding that a direct appeal of this preliminary injunction is proper, the six Members of today’s majority appear to be sharply divided over the nature of the issues before us and the proper scope of our authority on review. Justice O’Connor, joined by Justice Blackmun, eschews any attempt to resolve the underlying merits of the constitutional challenge. She properly recognizes that, because *355“[t]he merits of these claims are difficult to evaluate on the record of affidavits and depositions developed at the preliminary injunction stage,” it would be improper to express any views on the merits of the appellees’ as-applied challenges. Ante, at 338 (concurring opinion). Nor, properly, does Justice O’Connor purport to determine the facial validity of the challenged statutes, given that the District Court has never reached a fully consummated determination on that question. Instead, she simply observes that “the record falls short of establishing any likelihood of such sweeping facial invalidity.” Ante, at 337 (emphasis added). Justice O’Connor accordingly limits her analysis to application of the abuse-of-discretion standard that governs review of preliminary-injunction orders, concluding that “the District Court abused its discretion in issuing a nationwide preliminary injunction.” Ante, at 336. Although I find this approach far preferable to that taken by the opinion for the Court, I respectfully submit that it is inconsistent with § 1252 for two reasons: First, as set forth above, application of the abuse-of-discretion standard to the equitable process of granting preliminary relief is not subsumed in § 1252 and properly is left to the courts of appeals in the first instance. Second, this approach, by properly avoiding the ultimate resolution of the facial and as-applied constitutional challenges, has not in the slightest way furthered the underlying purpose of § 1252 — ensuring the prompt and dispositive resolution of the merits of facial and as-applied constitutional challenges to federal statutes.37
The opinion for the Court appears to take a very different tack. To be sure, the Court notes two or three times that the District Court simply found a “likelihood” that the appel-*356lees after a full trial would be able to demonstrate the unconstitutionality of the challenged statutes, and it states once in passing that the District Court “abused its discretion” in so finding. Ante, at 312-313, 315, 334. But that is not the essence of the Court’s approach. The Court repeatedly seeks to cast doubt on the bona fides of the District Court’s entry of preliminary relief pursuant to Rule 65 by describing that relief in quotation marks: the District Court did not really grant a preliminary injunction, but a “preliminary injunction.” Ante, at 308, 312, 316. Having thus suggested that the matter is one of “semantic[s]” making “little difference,” ante, at 317, the Court proceeds to assert, repeatedly, that the District Court actually “held that [the $10] limit violates the Due Process Clause of the Fifth Amendment, and the First Amendment,” ante, at 307 (emphasis added).38 Having thus mischaracterized the District Court’s decision, the Court then purports “to decide this case on the merits,” ante, at 312, n. 5 — bootstrapping its way past the rule that we may “intimate no view as to the ultimate merits” in preliminary-injunction cases39 by observing that, under § 1252, “it was the constitutional question that Congress wished this Court to decide,” ante, at 318 (emphasis added).
Having thus paved the way for its consideration of the constitutional merits, the Court then proceeds to “review” the District Court’s “holding” in light of the record evidence and the three-part Mathews v. Eldridge, 424 U. S. 319 (1976), balancing test. The Court focuses on the Mathews factors of the risk of an erroneous decision through the current procedures and the probable value of additional safeguards. The Court rummages through the partially developed record and seizes upon scattered evidence introduced by the Government on the eve of the preliminary-injunction hearing — evidence that neyer has been tested in a trial on the merits — and pronounces that evidence “reliable” and compelling. See, *357e. g., ante, at 331.40 Moreover, the Court excoriates the ap-pellees and the District Court repeatedly for failing to muster sufficient evidence to support the “holding” of unconstitutionality: the appellees made “no such” sufficient presentation of evidence, introduced “nothing” to support the “holding,” and “failed to make the very difficult factual showing” necessary to support the “holding” of unconstitutionality. Ante, at 326, 329, 330.41 The conclusion is preordained: the statutes give the appellees “an opportunity under the present claims process” to “make a meaningful presentation” without an attorney’s assistance, and the District Court’s “holding” of unconstitutionality must therefore be reversed. Ante, at 335.
This brand of constitutional adjudication is extraordinary. Whereas Justice O’Connor faithfully adheres to the limited role of appellate judges in reviewing preliminary injunctions and thereby departs from the purposes of § 1252, the opinion for the Court seizes upon the underlying purposes of § 1252 in .order to evade the well-established rule prohibiting appellate courts from even purporting to “intimate . . . view[s]” on the ultimate merits when reviewing preliminary injunctions granted on likelihood of success. Doran v. Salem Inn, Inc., 422 U. S., at 934. If the opinion for the Court turns out to be more than an unfortunate aberration, it will threaten a fundamental transformation of the equitable process of granting preliminary relief in cases challenging the constitutionality of Government action.42 Individual litigants seeking such *358relief on grounds of irreparable injury and a balancing of hardships will essentially be required to confront the Government with both hands tied behind their backs: if they successfully obtain such relief, this Court will immediately intervene pursuant to §1252 to review the “holding” of unconstitutionality, will make de novo findings that selected evidence is “reliable,” will castigate the individuals for failing to adduce sufficient evidence to support the “merits” of the “holding,” and will issue a ringing proclamation that the challenged statute is constitutional.
I — I l-H HH
I believe that § 1252 should have been construed to permit a direct appeal to this Court only from a lower court decision that represents a fully consummated determination that an Act of Congress is unconstitutional so as to permit this Court properly to resolve the constitutional question on the merits. Unlike Justice O’Connor, I do not believe that § 1252 requires this Court directly to police the injunctive process in constitutional challenges in the first instance. Unlike the opinion for the Court, I do not believe that § 1252 may be invoked in such cases to short-circuit the process of orderly and principled constitutional adjudication. Accordingly, I believe the Court should have vacated the judgment and remanded to the District Court for the entry of a fresh decree, so that the Government could take a proper appeal of the preliminary-injunction order to the Court of Appeals for the Ninth Circuit. See, e. g., United States v. Christian Echoes National Ministry, 404 U. S. 561, 566 (1972) (per curiam). The Court having decided to the contrary and having reached the merits, I join Justice Stevens’ dissent.
Title 38 U. S. C. § 3404 prohibits a veteran or his survivors from paying more than $10 to an attorney for assistance in attempting to obtain service-connected death and disability benefits, and § 3405 provides that any attorney who receives more than $10 in these circumstances “shall be fined not more than $500 or imprisoned at hard labor for not more than two years, or both.”
The court noted that “the government has submitted absolutely no evidentiary support” for its claim of potential hardship from the entry of preliminary relief. 589 F. Supp., at 1328, n. 23. Appellees, on the other hand, had pointed to a number of alleged hardships in support of their motion: (1) “a substantial number of SCDDC Claimants who would be forced to proceed without a lawyer during the pendency of this litigation would go on to lose or abandon their claims”; (2) “the fee limitation exacts a heavy toll in terms of Claimants’ ability to petition the V. A. for a redress of grievances, access to the V. A., and fundamental rights of free speech and association,” it being well established that the “loss of First Amendment freedoms, even temporarily, constitutes irreparable injury”; and (3) “many veterans, and particularly those whose cancer claims arise out of radiation or Agent Orange exposure such as Maxwell, Cordray and Ware-hime, may die prior to trial on the merits. For these veterans, the instant motion is their only opportunity for redress. Indeed, one of the intended plaintiffs herein, Charles Targett, died of brain cancer before this action could even be filed.” Plaintiffs’ Memorandum of Points and Authorities in Support of Application for a Preliminary Injunction, No. C-83-1861MHP, pp. 17-19 (ND Cal. Nov. 14, 1983) (emphasis added) (Preliminary Injunction Memorandum). See also Exhibit E, Declaration of Gordon P. Erspamer ¶ 3, attached to Preliminary Injunction Memorandum (“Based upon my knowledge of the medical conditions of Messrs. Maxwell, Cordray and Warehime, and my acquaintance with their medical records, I believe, regrettably, there is a substantial possibility that one or more of them will not survive through trial”).
As the District Court observed, “[a]t oral argument [before that court] attorneys for both plaintiffs and defendants agreed that this was a motion solely for preliminary injunctive relief and not for permanent injunctive relief.” 589 F. Supp., at 1307, n. 5.
See generally United States v. Corrick, 298 U. S. 435 (1936); Alabama v. United States, 279 U. S. 229 (1929); United Fuel Gas Co. v. Public Serv*342ice Comm’n of West Virginia, 278 U. S. 322 (1929); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States §§ 196, 208, 217 (1951).
As in the due process balancing inquiry conducted by the District Court in this case pursuant to Mathews v. Eldridge, 424 U. S. 319 (1976).
H. R. Rep. No. 212, 75th Cong., 1st Sess., 2 (1937) (emphasis added). See also H. R. Conf. Rep. No. 1490, 75th Cong., 1st Sess. (1937); S. Rep. No. 963, 75th Cong., 1st Sess. (1937). Remarks during floor debate reinforce the conclusion that § 1252 was intended to provide mandatory Supreme Court review only where the underlying constitutional issue was properly presented for dispositive resolution. See, e. g., 81 Cong. Rec. 3254 (1937) (remarks of Rep. Sumners) (provision would enable an appeal “directly to the Supreme Court from an adverse decision on the question of constitutionality”); id., at 3256 (remarks of Rep. Brewster) (provision designed to “obviate delays in our courts so far as determination of constitutional questions is concerned”); id., at 3260-3261 (remarks of Rep. Sumners) (case “would come up on the question of constitutionality”; “[w]hen the question of the constitutionality of an act of Congress is raised, and it is a serious question, it is the judgment of the members of the committee that that question ought to be presented to the Supreme Court just as quickly as it can be carried there properly”); id., at 3267 (remarks of Rep. McFarlane) (provision would “expedite the testing of the constitutionality of acts of Congress”); id., at 3272 (remarks of Rep. Sumners) (“where . . . the decision is adverse to the constitutionality of the act in question, the Government, in such event, may appeal directly to the Supreme Court in order to expedite the determination of the constitutional question”). See also Frankfurter & Fisher, The Business of the Supreme Court at the *343October Terms, 1935 and 1936, 51 Harv. L. Rev. 577, 614, 616-617 (1938) (the “essence” of the legislation now codified as § 1252 was to ensure “a speedy test” of the constitutionality of a federal statute by promptly “securing the final word from the Supreme Court”).
Title 28 U. S. C. § 1252 provides in full:
“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party.
“A party who has received notice of appeal under this section shall take any subsequent appeal or cross appeal to the Supreme Court. All appeals or cross appeals taken to other courts prior to such notice shall be treated as taken directly to the Supreme Court.”
The Judiciary Act of 1937, § 2, 50 Stat. 752, provided in full:
“In any suit or proceeding in any court of the United States to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is a party, or in which the United States has intervened and become a party, and in which the decision is against the constitutionality of any Act of Congress, an appeal may be taken directly to the Supreme Court of the United States by the United States or any other party to such suit or proceeding upon application therefor or notice thereof within thirty days after the entry of a final or interlocutory judgment, decree, or order; and in the event that any such appeal is taken, any appeal or cross-appeal by any party to the suit or proceeding taken previously, or taken within sixty days after notice of an appeal under this section, shall also be or be treated as taken directly to the Supreme Court of the United States. In the event that an appeal is taken under this section, the record shall be made up and the case docketed in the Supreme Court of the United States within sixty days from the time such appeal is allowed, under such rules as may be prescribed by the proper courts. Appeals under this section shall be heard by the Supreme Court of the United States at the earliest possible time and shall take precedence over all other matters not of a *344like character. This section shall not be construed to be in derogation of any right of direct appeal to the Supreme Court of the United States under existing provisions of law.”
See also Heckler v. Edwards, 465 U. S. 870, 877 (1984); McLucas v. DeChamplain, 421 U. S. 21, 30-31 (1975); United States v. Christian Echoes National Ministry, Inc., 404 U. S. 561, 563-566 (1972) (per curiam); Fleming v. Rhodes, 331 U. S. 100, 103-104 (1947); Garment Workers v. Donnelly Garment Co., 304 U. S. 243, 249 (1938).
Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541, 546 (1949).
Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978).
Abney v. United States, 431 U. S. 651, 659 (1977).
15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3911, p. 470 (1976) (Wright, Miller, & Cooper).
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1, 12 (1983).
Id., at 13. See generally Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368, 375 (1981); United States v. MacDonald, 435 U. S. 850, 854-855 (1978); Bisen v. Carlisle & Jacquelin, 417 U. S. 156, 172 (1974).
Cohen v. Beneficial Industrial Loan Corp., 337 U. S., at 546.
Ibid. See also Stack v. Boyle, 342 U. S. 1, 12 (1961) (opinion of Jackson, J.) (“[I]t is a final decision that Congress has made reviewable. . . . While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment”) (emphasis in original).
Similar distinctions have evolved concerning the scope of our jurisdiction over “final” state-court judgments or decrees pursuant to 28 U. S. C. § 1267. See, e. g., Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 476-487 (1976); Construction Laborers v. Curry, 371 U. S. 542, 648-551 (1963).
Cohen v. Beneficial Industrial Loan Corp., supra, at 546.
“When Congress created the exceptional right to bypass the court of appeals, it directly linked that right to a lower court’s invalidation of an Act of Congress. Although it is in the nature of cases and controversies that the court’s judgment may address not only the issue of statutory constitutionality, but other issues as well, such as attorney’s fees, remedy, or related state-law claims, the natural sense of the jurisdictional provision is that the holding of statutory unconstitutionality, not these other issues, is what Congress unshed this Court to review in the first instance.
“Because direct review is linked to a court’s holding a federal statute unconstitutional, the logical test of which appeals from a judgment must be brought directly to this Court and which, standing alone, must follow the normal route of appellate review, is whether the issue on appeal is the holding of statutory unconstitutionality.” Heckler v. Edwards, 465 U. S., at 880 (emphasis added).
Cohen v. Beneficial Industrial Loan Corp., supra, at 546.
The Court argues that the finality issue is a “bit of a red herring” given that the original version of § 1252, see n. 8, supra, provided jurisdiction over decisions “against the constitutionality of any Act of Congress,” and that “[a]ny fair reading of the decision at issue would conclude that it is ‘against the constitutionality’ ” of the challenged statutes. Ante, at 318. I disagree. Every district court order in litigation such as this that denies a motion to dismiss or for summary judgment, grants a temporary restraining order, see n. 26, infra, or even allows discovery to proceed based on the substantiality of the plaintiff’s claim could be characterized as being *348“against” the validity of a statute in the sense that it is not squarely “for” the statute, else the litigation would be terminated. Preliminary injunctions based on “likelihood” of success do, to be sure, represent a more definite degree of doubt respecting the statute than, say, an order denying summary judgment based on “genuine issues” remaining. Cf. Fed. Rule Civ. Proc. 56(e). But these are differences of degree and not of kind. A decision cannot squarely be “against” the constitutionality of a statute if the constitutional question is still “open, unfinished [and] inconclusive.” Cohen v. Beneficial Industrial Loan Corp., 337 U. S., at 546.
See legislative history discussed in n. 6, supra.
See, e. g., EEOC v. Wyoming, 460 U. S. 226, 229 (1983); California v. Grace Brethren Church, 457 U. S. 393, 404-407 (1982); United States v. Lee, 455 U. S. 252, 256 (1982); United States v. Darusmont, 449 U. S. 292, 293 (1981) (per curiam).
Fleming v. Rhodes, 331 U. S., at 104.
Temporary restraining orders generally cannot be granted absent a showing of reasonable probability of eventual success on the merits although, as in preliminary-injunction cases, the degree of required probability may vary depending on the extent of irreparable injury and the balance of. hardships. See 11 Wright, Miller, & Cooper § 2951, at 507-510. The Court’s reasoning therefore extends without apparent limitation to all temporary restraining orders issued in litigation challenging the constitutionality of federal statutes.
“Congress did not enact an open-ended ‘impact’ test for determining which cases should come to this Court for direct review. Although remedial aspects of a case are important, the touchstone of direct appeal under § 1252 is not a party’s or our own judgment of the significance of a decision. We exercise that judgment under our discretion to grant certiorari in any civil or criminal case before, as well as after, rendition of judgment. 28 U. S. C. § 1254(1); this Court’s Rule 18. In § 1252, Congress mandated direct review not simply for decisions with impact, but rather for decisions *350whose impact was predicated upon” a lower-court holding that an Act of Congress is unconstitutional. Heckler v. Edwards, 465 U. S., at 884.
There is an additional reason why today’s jurisdictional decision will bring every order granting preliminary relief in single as-applied cases directly before the Court: jurisdictional rules must be clear cut and cannot turn on indefinite notions of “importance” or “wide-ranging impact.” “[Ljitigants ought to be able to apply a clear test to determine whether, as an exception to the general rule of appellate review, they must perfect an appeal directly to the Supreme Court.” Id., at 877.
S. Rep. No. 94-204, p. 11 (1975). This Report pertained to Congress’ repeal of the three-judge district court provisions of 28 U. S. C. § 2282 (1970 ed.), discussed infra, at 351-354, and nn. 32-35.
See generally 7 J. Moore, J. Lucas, & K. Sinclair, Moore’s Federal Practice, ch. 65 (1985); 11 Wright, Miller, & Cooper §§2947-2950.
See, e. g., United States v. Nixon, 418 U. S. 683, 686-687 (1974) (cer-tiorari granted before judgment by the Court of Appeals “because of the public importance of the issues presented and the need for their prompt resolution”); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); United States v. Mine Workers, 330 U. S. 258 (1947); Ex parte Quirin, 317 U. S. 1 (1942); Carter v. Carter Coal Co., 298 U. S. 238 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); United States v. Bankers Trust Co., decided together with Norman v. Baltimore & Ohio R. Co., 294 U. S. 240 (1935).
Aaron v. Cooper, 357 U. S. 566, 567 (1958); see also Cooper v. Aaron, 358 U. S. 1, 13 (1958).
Section 3 provided in full:
“No interlocutory or permanent injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any Act of Congress upon the ground that such or any part thereof is repugnant to the Constitution of the United States shall be issued or granted by any district court of the United States, or by any judge thereof, or by any circuit judge acting as a district judge, unless the application for the same shall be presented to a circuit or district judge, and shall be heard and determined by three judges, of whom at least one shall be a circuit judge. When any such application is presented to a judge, he shall immediately request the senior circuit judge (or in his absence, the presiding circuit judge) of the circuit in which such district court is located to designate two other judges to participate in hearing and determining such application. It shall be the duty of the senior circuit judge or the presiding circuit judge, as the case may be, to designate immediately two other judges from such circuit for such purpose, and it shall be the duty of the judges so designated to participate in such hearing and determination. Such application shall not be heard or determined before at least five days’ notice of the hearing has been given to the Attorney General and to such other persons as may be defendants in the suit: Provided, That if of opinion that irreparable loss or damage would result to the petitioner unless a temporary restraining order is granted, the judge to whom the application is made may grant such temporary restraining order at any time before the hearing and determination of the application, but such temporary restraining order shall remain in force only until such hearing and determination upon notice as aforesaid, and such temporary restraining order shall contain a specific finding, based upon evidence submitted to the court making the order and identified by reference thereto, that such irreparable loss or damage would result to the petitioner and specifying the nature of the loss or damage. The said court may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension, in whole or in part, until decision upon the application. The hearing upon any such application for an interlocutory or permanent injunction shall be given precedence and shall be in every way expedited and be assigned for a hearing at the earli*353est practicable day. An appeal may be taken directly to the Supreme Court of the United States upon application therefor or notice thereof within thirty days after the entry of the order, decree, or judgment granting or denying, after notice and hearing, an interlocutory or permanent injunction in such case. In the event that an appeal is taken under this section, the record shall be made up and the case docketed in the Supreme Court of the United States within sixty days from the time such appeal is allowed, under such rules as may be prescribed by the proper courts. Appeals under this section shall be heard by the Supreme Court of the United States at the earliest possible time and shall take precedence over all other matters not of a like character. This section shall not be construed to be in derogation of any right of direct appeal to the Supreme Court of the United States under existing provisions of law.”
Title 28 U. S. C. §2284(3) derives in part from the portions of § 3 discussed above in text, and provides that a district judge may grant a temporary restraining order pending hearing and disposition of the underlying merits by a three-judge district court.
See Pub. L. 94-381, §2, 90 Stat. 1119.
The reference is to 3 W. Barron & A. Holtzoff, Federal Practice and Procedure §§ 1371-1378 (1958), which discusses, inter alia, the standards for staying district court orders pending appeals.
Because Congress repealed the three-judge district court requirement for cases such as this and “clearly vested” review of interlocutory matters in such eases in the courts of appeals, S. Rep. No. 94-204, p. 11 (1975), the Court’s reliance on precedent respecting appeals of three-judge interlocutory orders obviously is misplaced. See ante, at 319, citing Goldstein v. Cox, 396 U. S. 471, 476 (1970).
If I read the various opinions in this ease correctly, it appears that a majority of the Court — Justices O’Connor and Blackmun in their concurring opinion, and the three Justices in dissent — has not determined that 38 U. S. C. §§ 3404 and 3405 are constitutional either facially or as applied to particular categories of claims.
See also ante, at 312-313, 326, 334.
Doran v. Salem Inn, Inc., 422 U. S. 922, 934 (1975).
See also ante, at 327-330, 330-331, n. 12.
See also ante, at 314, and n. 6, 324, n. 11, 327-334.
The Court’s jurisdictional reasoning would also appear to implicate the process of reviewing federal-court preliminary relief in eases challenging the constitutionality of state statutes and state-court preliminary relief in cases challenging the constitutionality of federal statutes. See 28 U. S. C. §1254(2) (granting mandatory appeals jurisdiction to this Court where “a State statute [is] held by a court of appeals to be invalid as repugnant to the Constitution, treaties, or laws of the United States”); § 1257(1) (granting mandatory appeals jurisdiction over final state-court judgments and decrees where “the decision is against [the] validity” of a federal treaty or statute).