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Supreme Court

Sandra Day O'Connor served as a justice on the U.S. Supreme Court from 1981 to 2006. This page lists the opinions she wrote during her time on the court.

Post Retirement Opinions

After her retirement from the Supreme Court, Sandra Day O'Connor continued to hear cases in the U.S. Court of Appeals for the Ninth Circuit as a designated judge.

Arizona Appellate Court Opinions

Sandra Day O'Connor served as a judge on the Arizona Court of Appeals from 1980 to 1981. This page lists the opinions she wrote during her time on the state bench.

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Watt v. Energy Action Educ. Foundation

JUSTICE O’CONNOR delivered the opinion of the Court.

We are asked to review a decision of the United States Court of Appeals for the District of Columbia Circuit compelling the Secretary of the Interior to experiment with the use of certain statutorily defined bidding systems in awarding leases for oil and gas exploration and development on the Outer Continental Shelf. Because the decision below incorrectly construes the Outer Continental Shelf Lands Act Amendments of 1978, 92 Stat. 629, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp. III), we reverse.

I

The Outer Continental Shelf Lands Act of 1953 (OCS Lands Act), 67 Stat. 462, as amended, 92 Stat. 629, 43 U.S.C. § 1331 et seq. (1976 ed. and Supp. III), authorizes the Secretary of the Interior to lease tracts of the Outer Continental Shelf (OCS) [ Footnote 1 ] for the exploration and development of mineral resources, including oil and gas. As originally passed, the OCS Lands Act authorized the Secretary to solicit sealed bids either by fixing a royalty rate of not less than 12 1/2%, and requiring bids on the amount of an initial “cash bonus” to be paid at the time the lease was awarded, or by fixing the amount of the cash bonus, and requiring bids on the royalty rate. 43 U.S.C. § 1337(a). The OCS Lands Act vested complete discretion in the Secretary to choose between these two bidding systems. In practice, prior to 1978, virtually all tracts were leased on the basis of a fixed royalty of 16 2/3% of the gross value of production,

Boag v. MacDougall

JUSTICE O’CONNOR, concurring.

I join in the per curiam, but write separately to emphasize two points. First, nothing in the Court’s opinion prevents the District Court on remand from dismissing this suit under 28 U.S.C. § 1915(d) if it finds grounds to believe that the complaint is “malicious or frivolous.” This Court only requires the District Court to articulate briefly its reasons for dismissal in order to facilitate appellate review. Second, I find merit in JUSTICE REHNQUIST’s comments that this Court is not equipped to correct every perceived error coming from the lower federal courts. The effectiveness of this Court rests in part on its practice of deciding cases of broad significance and of declining to expend limited judicial resources on cases, such as the present one, whose significance is limited to the parties. In exercising our discretionary certiorari jurisdiction, we should not be influenced solely by the merits of the petitioner’s case.

United States v. Clark

JUSTICE O’CONNOR delivered the opinion of the Court.

The issue in this case is whether 5 U.S.C. § 5334(b), which requires a two-step pay increase for federal employees “promoted… to a position in a higher grade,” applies to prevailing wage rate employees promoted to General Schedule positions. We hold that it does not apply, and reverse the judgment of the Court of Claims.

I

This case involves the relationship between the two principal pay systems for federal employees and the pay treatment to which an employee moving from one system to another is entitled. Both systems are governed by Title 5, United States Code.

One of the pay systems, the General Schedule (GS), 5 U.S.C. § 5331 et seq. (1976 ed. and Supp. V), applies to federal “white-collar” employees. See R. Vaughn, Principles of Civil Service Law § 6.2(a), p. 6-4 (1976) (hereinafter Vaughn). The GS is divided into 18 numbered grades; as the number of the grade increases, so do pay and responsibilities. §§ 5104 and 5332 (1976 ed. and Supp. V). The grades are subdivided into rates of pay or “steps.” § 5332. The salary for each step of each grade in the GS is uniform nationwide. [ Footnote 1 ]

The second principal pay system is the prevailing rate wage system (WS), 5 U.S.C. § 5341 et seq. (1976 ed. and Supp. V), which primarily applies to those federal “blue collar” employees specifically excluded from the GS. See §§ 5102(b), (c)(7), 5331, and 5342(a)(2)(A); Vaughn § 6.2(b), p. 17. The WS also is divided into grades and subdivided into “steps.” The rate of pay for each step within each grade is based upon wage surveys of prevailing rates for comparable work in local wage areas. § 5343 (1976 ed. and Supp. V); Office of Personnel Management, Federal Personnel Manual, Supp. 531, 56 (Apr. 14, 1980) (hereinafter FPM). Pay rates for positions within the WS thus vary from one locale to another.

Salary treatment for GS employees who change their employment status and employees shifted or hired into the GS system is governed by 5 U.S.C. § 5334 (1976 ed. and Supp. V) and regulations promulgated pursuant thereto. Under the statute, an employee’s salary after promotion is determined by reference either to the “highest previous rate” rule [ Footnote 2 ] or to the “two-step increase” rule. [ Footnote 3 ]

Prior to July, 1973, all six respondents worked as federal civilian employees for the Supervisor of Shipbuilding, Department of the Navy. In those positions, they were paid pursuant to the WS. Between July, 1973, and October, 1974, all were promoted to positions covered by the GS. [ Footnote 4 ] After his promotion, Libretto learned that the other respondents received a salary increase equivalent to a two-step pay increase on their appointment to the GS positions. [ Footnote 5 ] Since Libretto’s increase was based upon the “highest previous rate” rule, and was much smaller, he filed a claim with the Department of the Navy. As a result, the Navy reexamined the salary treatment afforded respondents. Concluding the salaries of all should have been determined by applying the “highest previous rate” rule, the Navy denied Libretto’s claim and notified the other respondents their salaries would be reduced accordingly.

Respondents unsuccessfully pursued their administrative remedies, and then filed this action in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491, and the Back Pay Act of 1966, 5 U.S.C. § 5596. Respondents contended they were entitled to a two-step increase in pay pursuant to 5 U.S.C. § 5334(b) (1976 ed., Supp. V). The Government opposed the claims on the ground that § 5334(b) applies only to promotions within the GS, and not to shifts or promotions between the WS and the GS, which are governed by § 5334(a).

The Court of Claims, reasoning that respondents had been “promoted” within the meaning of 5 CFR § 531.202(h)(2) (1969), [ Footnote 6 ] determined they were entitled to a two-step increase under § 5334(b). Accordingly, the court invalidated, as inconsistent with the statute, 5 CFR § 531.204(a) (1969), which construed § 5334(b) as limited to transfers or promotions within the GS. 220 Ct.Cl. 278, 599 F.2d 411 (1979).

After remand, the parties stipulated to the amount of respondents’ recovery, and the court entered final judgment on August 8, 1980. We granted the Government’s petition for writ of certiorari to the United States Court of Claims. 450 U.S. 993 (1981). We have jurisdiction based upon 28 U.S.C. § 1255.

II

We look first to the language and organization of the statutes governing General Schedule pay rates and the prevailing rate wage system. If the statutory language is clear, it is ordinarily conclusive. See Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102 (1980).

Section 5334 is part of subchapter III, chapter 53 of Title 5, entitled “General Schedule Pay Rates.” Subsection 5334(a) describes the general conditions, including promotions, under which a GS employee is entitled to a change in basic pay. It directs simply that the rate is “governed by regulations prescribed by the [Civil Service Commission]….” Following that direction, the Civil Service Commission promulgated the “highest previous rate” rule. [ Footnote 7 ]

In subsection 5334(b), on the other hand, Congress restricted the Commission’s discretion in one limited situation:

An employee who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred.

For purposes of subchapter III, 5 U.S.C. § 5331 assigns the word “grade” the meaning given the term by 5 U.S.C. § 5102(a)(5). That section, in turn, defines a grade as those positions sufficiently similar to warrant their inclusion within one range of rates of basic pay “in the General Schedule.” Giving § 5334(b) its plain meaning, then, when an employee is promoted to a position in a higher grade “in the General Schedule,” he is entitled to pay which exceeds by two step increases his pay in the grade “in the General Schedule” from which he was promoted.

The Wage System, on the other hand, is governed by subchapter IV of chapter 53, Title 5. No express statutory provision in subchapter IV defines how an employee’s salary should be set when a WS employee is promoted to a GS position. Thus, the only applicable statutory provisions are those found in subchapter III and its accompanying regulations, which specifically limit the two-step increase to promotions within the GS. Nothing in the statutory language indicates Congress intended to include employees promoted from WS to GS within the two-step requirement of § 5334(b). Absent such language, the statute and the accompanying regulations reveal a congressional intent to apply the two-step increase provision of § 5334(b) only to promotions or transfers of employees already within the GS system.

III

Although the language of the statute is clear, any lingering doubt as to its proper construction may be resolved by examining the legislative history of the statute and by according due deference to the longstanding interpretation given the statute by the agencies charged with its interpretation. See NLRB v. Bell Aerospace Co., 416 U. S. 267 (1974). The legislative history of § 5334(b) reinforces the apparent intent of the statutory language. The predecessor to § 5334(b) was § 802(b) of the Classification Act of 1949, 63 Stat. 954, 5 U.S.C. § 1071 et seq. (1946 ed. and Supp. IV) (1949 Act). [ Footnote 8 ] Through the 1949 Act, Congress completely revised the Classification Act of 1923, Pub.L. 516, 42 Stat. 1488, 5 U.S.C. § 661 et seq. (1921926 ed.). Under the latter statute, an employee who was at the top step of his grade could receive little or no salary increase upon promotion to a higher grade. That inequity resulted because the salary for the higher steps in one grade could equal or exceed the salary for the lower steps in the next higher grade. Congress’ 1949 revision plainly undertook to correct this problem: the 1949 Act numbered among its stated purposes the need

to permit the solution of certain troublesome problems or to avoid unintentional pay inequities in the conduct of various personnel transactions.

S.Rep. No. 847, 81st Cong., 1st Sess., 4 (1949). Congress, moreover, understood the precise nature of the salary overlap problem. The Committee Reports which accompanied the proposed revisions explained:

At present, a promoted employee receives no immediate increase if he is already receiving a rate in the lower grade that also occurs in the higher grade. If he is receiving a rate in the lower grade that falls between two rates of the higher grade, he is promoted at the higher of these two rates.

“In too many cases, accordingly, an employee who is promoted to greater responsibilities or more difficult duties receives no immediate increase in pay. This is not in accord with the commonly accepted principle that a promotion in pay should [concurrently] accompany a promotion in duties and responsibilities. ” “Subsection (b) of section 802 corrects this situation.”

Id. at 38; H.R.Rep. No. 1264, 81st Cong., 1st Sess., 12-13 (1949).

Examination of the history of the prevailing wage system dispels any notion that Congress intended the corrective measure of § 802(b) to apply to movement between the prevailing wage and Classification Act systems. In 1949, each federal agency had its own pay system for blue-collar workers. As a result, employees holding the same federal position in the same locale often received different wages if they worked for different agencies. In addition, each agency had its own job grading system for prevailing wage employees, which resulted in widely varying numbers of grades and wage steps. [ Footnote 9 ] Nothing in the legislative history suggests that Congress was even aware of -much less was attempting to adjust -the varied results that might occur if a prevailing wage worker moved into a Classification Act position. The 1949 legislative history suggests only that Congress was concerned with inequities that might occur through application of the Classification Act system to movement within that system.

Moreover, in 1972, approximately one year before respondents’ promotions, Congress undertook a comprehensive examination of the prevailing wage statutes and amended existing laws to declare congressional policy for the payment of prevailing wage employees. See S.Rep. No. 92-791, p. 1 (1972). Congress’ stated purpose was to codify existing law. Ibid. As part of the 1972 amendments, Congress for the first time directed that a grading system be established and maintained for prevailing wage employees. [ Footnote 10 ] 5 U.S.C. § 5346 (1976 ed. and Supp. V). Even then, Congress made no effort to correlate the WS grades with those used in the GS. By that time, the agency practice of specifically limiting § 5334(b) and its predecessor to transfers between Classification Act, or GS, positions had been followed for nearly 25 years. [ Footnote 11 ] Congress’ failure to correct that practice, if it did not correspond with congressional intent, at the very time Congress was revamping the laws applicable to pay for prevailing wage positions provides further evidence of its intent that § 802(b) and, later, § 5334(b) apply only to GS employees. See United States v. Bergh, 352 U. S. 40 (1956).

The absence of any indication that Congress intended § 5334(b) to apply to promotions into the GS from the WS is hardly surprising, since the two systems have no necessary or obvious relationship. First, because the WS involves an entirely separate pay structure based on prevailing rates in local wage areas, no necessary overlap occurs between WS and GS salaries. In fact, since WS rates vary by locale, an employee changing from a WS position to a GS position could receive a greater salary, a lesser salary, or the same salary as another employee making the identical change in another part of the country. Moreover, although by definition a change to a higher grade within the GS system involves a change to a position with greater responsibility ( see 5 U.S.C. § 5102(a)(5) (1976 ed., Supp. V)), no similar relationship necessarily exists between a WS grade and a GS grade. [ Footnote 12 ]

Although the legislative history does not expressly indicate that Congress intended to limit § 5334(b) and its predecessor to GS employees, the history provides ample indication that such was Congress’ intent. Moreover, the reasons for enactment of the provision are consistent with such a limitation.

IV

Although not determinative, the construction of a statute by those charged with its administration is entitled to great deference, particularly when that interpretation has been followed consistently over a long period of time. See Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 (1977). In this instance, the agency responsible for proposing and administering § 5334(b) has consistently construed it to apply only to promotions within the GS.

Section 802(b) of the 1949 Act was drafted and submitted to the Congress by the Civil Service Commission. [ Footnote 13 ] Soon after its enactment, the Civil Service Commission promulgated regulations interpreting the section. The first regulations guaranteed a pay increase to one promoted “to a higher grade between Classification Act [GS] positions….” 15 Fed.Reg. 7868 (1950), 5 CFR § 25.104(a) (Supp.1951). [ Footnote 14 ] In contrast, an employee promoted or transferred from another pay system into the Classification Act system was subject to the “highest previous rate” rule. 15 Fed Reg. 1235 (1950), 5 CFR § 25.103(b) (Supp.1951). Subsequent versions of the regulations continued to apply the automatic salary increase of § 802(b) and, later, of § 5334(b), only to promotions or transfers within the Classification Act, or GS, system. [ Footnote 15 ] In fact, the regulation in effect when respondents were promoted expressly provided that the two-step pay increase provision of § 5334(b) applied

only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade.

33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a)(1) (1969). [ Footnote 16 ]

V

The language of the statute, the entire statutory scheme, the legislative history, and consistent administrative interpretation all demonstrate the soundness of the Government’s position that § 5334(b) is inapplicable to promotions from the Wage System to the General Schedule.

The judgment of the Court of Claims is reversed.

It is so ordered.

Notes

[ Footnote 1 ]

The Federal Pay Comparability Act of 1970, 5 U.S.C. § 5301 et seq. (1976 ed. and Supp. V), defines the principles applied to determine GS salaries.

[ Footnote 2 ]

The “highest previous rate” rule derives from 6 U.S.C. § 5334(a) (1976 ed., Supp. V), which provides in part:

The rate of basic pay to which an employee is entitled is governed by regulations prescribed by the Office of Personnel Management [formerly the Civil Service Commission] in conformity with this subchapter and chapter 51 of this title when –

(1) he is transferred from a position in the legislative, judicial, or executive branch to which this subchapter does not apply; * * * *

(6) his employment status is otherwise changed; or

(7) his position is changed from one grade to another grade.

At the time of respondents’ promotions, 33 Fed.Reg. 12450 (1968), 5 CFR § 531.203(c) (1969), one of the regulations prescribed by authority of § 5334(a), provided in part:

Subject to § 531.204…, when an employee is reemployed, transferred, reassigned, promoted, or demoted, the agency may pay him at any rate of his grade which does not exceed his highest previous rate; however, if his highest previous rate falls between two rates of his grade, the agency may pay him at the higher rate.

[ Footnote 3 ]

The “two-step increase” rule is codified in 5 U.S.C. § 5334(b) (1976 ed., Supp. V), which provides in pertinent part:

An employee who is promoted or transferred to a position in a higher grade is entitled to basic pay at the lowest rate of the higher grade which exceeds his existing rate of basic pay by not less than two step-increases of the grade from which he is promoted or transferred.

At the time of respondents’ promotions, 33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a)(1) (1969), the regulation interpreting § 5334(b), provided:

The requirements of section 5334(b) of title 5, United States Code, apply only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade.

[ Footnote 4 ]

Respondents’ changes of position were as follows: Clark, from WS ship surveyor (shipfitter) to GS quality assurance specialist; D’Aversa, from WS ship surveyor (pipefitter) to GS production controller; Libretto, from WS ship surveyor (machinist) to GS engineering technician; Proto, from WS ship surveyor (electrician) to GS production controller, and later to GS contract negotiator; Scialpi, from WS ship surveyor (shipfitter) to GS contract negotiator; and Wolfus, from WS ship surveyor (machinist) to GS contract negotiator.

[ Footnote 5 ]

The parties agree that Libretto’s salary after promotion was determined by reference to the “highest previous rate” rule. Because his WS salary fell between two steps of his new GS grade, he was given the higher salary level of the new GS grade. The parties disagree as to the method used to determine the post-promotion salaries of the remaining respondents. Respondents allege they were simply given a two-step increase, pursuant to § 5334(b). The Government explains their GS salaries were originally determined by first applying the provision of subchapter S8-3d of the FPM, Supp. 532-1, Inst. 8 (Jan. 16, 1973), which stated that an employee promoted to a WS position is entitled to be paid at the lowest scheduled rate that exceeds his existing rate of pay by no less than a one-step increment of the category from which he was promoted. Once this adjustment had been made, the new GS salaries of these respondents were computed by applying the “highest previous rate” rule of 5 CFR § 531.203(c) (1969) to the adjusted rates of pay. Thus, each of these respondents was awarded two salary increases for a single change of position. If this method was utilized, the salary determinations were obviously erroneous, because subchapter S8-3d and the “highest previous rate” rule of 5 CFR § 531.203(c) (1969) are not applicable to the same personnel action. Regardless of the method used, the effect was to give all respondents except Libretto the equivalent of a two-step increase.

[ Footnote 6 ]

At the time of respondents’ promotions, 33 Fed.Reg. 12449 (1968), 5 CFR § 531.202(h) (1969), provided:

‘Promotion’ means a change of an employee, while continuously employed, from:

(1) One General Schedule grade to a higher General Schedule grade; or (2) A lower rate paid under authority other than subchapter III of chapter 53 of title 5, United States Code, to a higher rate within a General Schedule grade.

[ Footnote 7 ]

See 5 CFR § 531.203(c) (1969). The Civil Service Commission promulgated the initial regulation. In 1978, Congress substituted the Office of Personnel Management for the Civil Service Commission. 5 U.S.C. § 1101 et seq. (1976 ed., Supp. V). The terms of the regulation have remained consistent since 1950. See n. 15 infra.

[ Footnote 8 ]

In 1962, the Act was amended to provide a two-step rather than a one-step salary increase. 5 U.S.C. 1132(b) (1968 ed., Supp. V).

[ Footnote 9 ]

See Staff Report, President’s Panel on Federal Compensation 107 (Jan.1976).

[ Footnote 10 ]

In 1965, President Johnson directed all executive agencies to coordinate their wage policies and practices under the leadership of the Chairman of the Civil Service Commission. See FPM, Supp. 532-1, App. A-1, B-B-1 (Nov. 16, 1965). As a result, the Coordinated Federal Wage System was developed. In 1972, Congress amended the prevailing wage statutes. The purpose of the 1972 amendments was to codify existing law and enact a system for all agencies to use for determining the prevailing wage rates. S.Rep. No. 92-791, p. 1 (1972). As part of the 1972 amendments, Congress added 5 U.S.C. § 5346, which directed the Civil Service Commission to establish and maintain a job grading system for positions covered by subchapter IV. That was the first time Congress directed the maintenance of a uniform system for WS employees.

[ Footnote 11 ]

See 454 U. S. infra.

[ Footnote 12 ]

The two systems are simply independent. Unlike the 10 steps or rates of pay in most GS grades ( see 6 U.S.C. § 5332 (1976 ed. and Supp. V)), the WS currently uses only 5 rates for each position ( see 5 U.S.C. § 5343(c)(2) (1976 ed. and Supp. V)) and, before 1972, used only 3 rates. See H.R.Rep. No. 92-339, p. 6 (1971); S.Rep. No. 92-791, p. 2 (1972). In addition, the range of pay in a GS grade is approximately 30 percent of the base rate, but the range in the WS is only approximately 16 percent. See 5 U.S.C. §§ 5332 (chart), 5343(e)(1)(A)(E) (1976 ed. and Supp. V). Moreover, the periodic step increases in the WS occur considerably more quickly than in the GS. Compare 5 U.S.C. §§ 5336(a)(1)-(3) with 5 U.S.C. §§ 5343(e)(2)(A)-(C) (1976 ed. and Supp. V). As a result, the maximum rate of pay for a position is more often reached, and in a far shorter time, by a WS employee than by a GS employee.

[ Footnote 13 ]

See S.Rep. No. 847, 81st Cong., 1st Sess., 1 (1949).

[ Footnote 14 ]

Congress specifically excluded prevailing rate positions from the Classification Act of 1949. 5 U.S.C. § 1082(7) (1946 ed., Supp. IV). Those positions remain specifically excluded from the General Schedule. 5 U.S.C. §§ 5102(c)(7), 5331 (1976 ed. and Supp. V).

[ Footnote 15 ]

See, e.g., 15 Fed.Reg. 7868 (1950), 5 CFR § 25.104(a) (Supp.1951) (refers to “[a]n employee promoted, repromoted or transferred to a higher grade between Classification Act positions or grades”); 25 Fed.Reg. 7147 (1960), 5 CFR § 25.104(a) (1961) (“[t]he requirements of section 802(b) of the [Classification] Act apply in repromotion actions and in transfers involving promotions between Classification Act grades”); 28 Fed.Reg. 10948 (1963), 5 CFR § 531.204(a)(1) (1964) (“[t]he requirements of section 802(b) of the [A]ct, apply in a transfer involving a promotion between Classification Act grades”); 33 Fed.Reg. 12450 (1968), 5 CFR § 531.204(a) (1969) (“[t]he requirements of section 5334(b) of title 5, United States Code, apply only (i) to a transfer from one General Schedule position to a higher General Schedule position, and (ii) to a promotion from one General Schedule grade to a higher General Schedule grade”).

[ Footnote 16 ]

The General Accounting Office, authorized to settle and adjust “[a]ll claims and demands whatever… against [the Government],” 31 U.S.C. §§ 71, 72, has consistently determined that the “highest previous rate” rule, rather than the automatic step increase provision, governs transfers or promotions from a WS position to a GS position. See, e.g., In re Nail, 59 Comp.Gen. 209 (1980); Letter Decision, 52 Comp.Gen. 695 (1973); Letter Decision, 52 Comp.Gen. 671 (1973); Letter Decision, 44 Comp. Gen. 518 (1965)

Charles D. Bonanno Linen Serv. Inc. v. NLRB

JUSTICE O’CONNOR, with whom JUSTICE POWELL joins, dissenting.

I join THE CHIEF JUSTICE in the introductory comments and Part I of his dissent. However, I write separately because I believe labor peace would be advanced by avoiding the absolute positions adopted both by the majority and by the dissent of THE CHIEF JUSTICE. Because I am convinced that the Board should examine the circumstances surrounding and following an impasse to determine whether an unusual circumstance sufficient to justify withdrawal has occurred, and because I cannot accept the Court’s conclusory statements concerning the effects of all interim agreements, I respectfully dissent.

I

The Court agrees with the Board that an impasse is not an unusual circumstance “sufficiently destructive of group bargaining to justify unilateral withdrawal.” The Board adopted that position after identifying an impasse as (1) simply a “temporary deadlock or hiatus in negotiations” (2) which may be brought about intentionally by one of the parties and (3) which in almost all cases is “eventually broken, either through a change of mind or the application of economic force.” Charles D. Bonanno Linen Service, Inc., 243 N.L.R.B. 1093, 1093-1094 (1979). There are, of course, impasses that fit this description. Others do not. Unfortunately, having developed its premise, the Board has chosen to ignore the reasons which justified it, and now “reasons” that an impasse, regardless of duration, does not justify employer withdrawal. The

Eddings v. Oklahoma

JUSTICE O’CONNOR, concurring.

I write separately to address more fully the reasons why this case must be remanded in light of Lockett v. Ohio, 438 U. S. 586 (1978), which requires the trial court to consider and weigh all of the mitigating evidence concerning the petitioner’s family background and personal history. *

Because sentences of death are “qualitatively different” from prison sentences, Woodson v. North Carolina, 428 U. S. 280, 428 U. S. 305 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.), this Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake. Surely, no less can be required when the defendant is a minor. One example of the measures taken is in Lockett v. Ohio, supra, where a plurality of this Court wrote:

There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth

Smith v. Phillips

JUSTICE O’CONNOR, concurring.

I concur in the Court’s opinion, but write separately to express my view that the opinion does not foreclose the use of “implied bias” in appropriate circumstances.

I

Determining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it. The problem may be compounded when a charge of bias arises from juror misconduct, and not simply from attempts of third parties to influence a juror.

Nevertheless, I believe that, in most instances, a postconviction hearing will be adequate to determine whether a juror is biased. A hearing permits counsel to probe the juror’s memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing also permits the trial judge to observe the juror’s demeanor under cross-examination, and to evaluate his answers in light of the particular circumstances of the case.

I am concerned, however, that, in certain instances, a hearing may be inadequate for uncovering a juror’s biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that

Rose v. Lundy

JUSTICE O’CONNOR delivered the opinion of the Court, except as to Part III-C.

In this case, we consider whether the exhaustion rule in 28 U.S.C. §§ 224(b), (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts. Because a rule requiring exhaustion of all claims furthers the purposes underlying the habeas statute, we hold that a district court must dismiss such “mixed petitions,” leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.

I

Following a jury trial, respondent Noah Lundy was convicted on charges of rape and crime against nature, and sentenced to the Tennessee State Penitentiary. [ Footnote 1 ] After the Tennessee Court of Criminal Appeals affirmed the convictions and the Tennessee Supreme Court denied review, the respondent filed an unsuccessful petition for postconviction relief in the Knox County Criminal Court.

The respondent subsequently filed a petition in Federal District Court for a writ of habeas corpus under 28 U.S.C. § 2254, alleging four grounds for relief: (1) that he had been denied the right to confrontation because the trial court limited the defense counsel’s questioning of the victim; (2) that he had been denied the right to a fair trial because the prosecuting attorney stated that the respondent had a violent

Bread Political Action Comm’n v. FEC

JUSTICE O’CONNOR delivered the opinion of the Court.

Section 310(a) of the Federal Election Campaign Act of 1971 (FECA), 88 Stat. 1285, as amended, 2 U.S.C. § 437h(a) (1976 ed., Supp. IV), lists three categories of plaintiffs who may challenge the constitutional validity of FECA in specially expedited suits: (1) the Federal Election Commission (FEC), (2) “the national committee of any political party,” and (3) “any individual eligible to vote in any election for the office of President.” In this case, we address a question we expressly reserved in California Medical Assn. v. FEC, 453 U. S. 182, 453 U. S. 187, n. 6 (1981): whether a party not belonging to one of the three categories listed in § 437h(a) may nonetheless invoke its procedures.

I

The appellants are two trade associations and three political action committees (PAC’s): the National Restaurant Association and its associated PAC, the Restauranteurs Political Action Committee, the National Lumber and Building Material Dealers Association and its associated PAC, the Lumber Dealers Political Action Committee, and the Bread Political Action Committee, the PAC associated with the American Bakers Association. In order to challenge the validity of 2 U.S.C. § 441b(b)(4)(D), which has the effect of limiting the extent to which trade associations and their PAC’s may solicit funds for political purposes, [ Footnote 1 ] the appellants filed an action in the United States District Court for the Northern District of Illinois, seeking

McElroy v. United States

JUSTICE O’CONNOR delivered the opinion of the Court.

The petitioner was convicted of two counts of transporting a forged security in interstate commerce in violation of 18 U.S.C. § 2314. He challenges his conviction on the ground that the statute requires proof, concededly lacking at trial, that the securities had been forged before being taken across state lines. Because of a conflict among the Circuits on this issue of statutory construction, we granted certiorari. 454 U.S. 815 (1981). For the reasons stated below, we affirm the petitioner’s conviction.

I

Petitioner Charles McElroy was indicted by a federal grand jury on three counts. Counts 1 and 3 charged that, on two occasions, the petitioner transported in interstate commerce falsely made and forged securities from Ohio to Pennsylvania in violation of 18 U.S.C. § 2314, the National Stolen Property Act. [ Footnote 1 ] Count 2 charged McElroy with transporting a stolen car in interstate commerce from Pennsylvania to Ohio in violation of 18 U.S.C. § 2312. [ Footnote 2 ]

According to the proof at trial, several blank checks [ Footnote 3 ] were stolen from Local 126 of the Laborers’ International Union in Youngstown, Ohio, in late March or early April, 1977. After the Union discovered the theft, it closed the account on which the checks were drawn. Seventeen months later, in October, 1978, the petitioner ordered a used Corvette from the Don Allen Chevrolet Agency in Pittsburgh, Pa., for $6,706. Using the name “William Jones,”

Mills v. Habluetzel

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE BRENNAN, and JUSTICE BLACKMUN join, and with whom JUSTICE POWELL joins as to Part I, concurring.

Today, this Court holds that a Texas statute prescribing a one-year statute of limitation for paternity suits violates the Equal Protection Clause of the Fourteenth Amendment. Although I agree with the Court’s analysis and result, I write separately because I fear that the opinion may be misinterpreted as approving the 4-year statute of limitation now used in Texas. See Tex.Fam.Code Ann. § 13.01 (Supp.1982).

I

As the Court notes, the response of the Texas Legislature to our opinion in Gomez v. Perez, 409 U. S. 535 (1973), was “less than generous.” Ante at 456 U. S. 94. The one-year statute of limitation for paternity suits, enacted following our decision in Gomez, severely restricted the opportunity for illegitimate children to obtain financial support from their natural fathers, an opportunity not denied legitimate children. Although the need for proof of paternity distinguishes legitimate from illegitimate children in their claims for child support, the State’s asserted justification is neither sufficiently weighty nor substantially related to the limitation to uphold the statute under the Fourteenth Amendment.

The appellee has set forth a number of “state interests” to justify the one-year statute of limitation, but the Court accepts only one of these as permissible -the interest in preventing the prosecution of stale or

United States v. Frady

JUSTICE O’CONNOR delivered the opinion of the Court.

Rule 52(b) of the Federal Rules of Criminal Procedure permits a criminal conviction to be overturned on direct appeal for “plain error” in the jury instructions, even if the defendant failed to object to the erroneous instructions before the jury retired, as required by Rule 30. In this case, we are asked to decide whether the same standard of review applies on a collateral challenge to a criminal conviction brought under 28 U.S.C. § 2255.

I

A

Joseph Frady, the respondent, does not dispute that, 19 years ago, he and Richard Gordon killed Thomas Bennett in the front room of the victim’s house in Washington, D.C. Nonetheless, because the resolution of this case depends on what the jury learned about Frady’s crime, we must briefly recount what happened, as told by the witnesses at Frady’s trial and summarized by the Court of Appeals. See Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (en banc) ( Frady I ), cert. denied, 382 U.S. 909 (1965).

The events leading up to the killing began at about 4:30 p.m. on March 13, 1963, when two women saw Frady drive slowly by Bennett’s house in an old car. Later, at about 7:00 p.m., Frady, accompanied by Richard Gordon and Gordon’s friend, Elizabeth Ryder, returned to the same block. On this second trip, Ryder overheard Frady say “something about that is the house over there,” at which point Frady and Gordon looked in the direction of the victim’s house.

After reconnoitering Bennett’s

Engle v. Isaac

JUSTICE O’CONNOR delivered the opinion of the Court.

In Wainwright v. Sykes, 433 U. S. 72 (1977), we held that a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a § 2254 habeas corpus [ Footnote 1 ] proceeding without showing cause for, and actual prejudice from, the default. Applying the principle of Sykes to these cases, we conclude that respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding.

I

Respondents’ claims rest in part on recent changes in Ohio criminal law. For over a century, the Ohio courts required criminal defendants to carry the burden of proving self-defense by a preponderance of the evidence. See State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973); Szalkai v. State, 96 Ohio St. 36, 117 N.E. 12 (1917); Silvus v. State, 22 Ohio St. 90 (1872). A new criminal code, effective January 1, 1974, subjected all affirmative defenses to the following rule:

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.

Ohio Rev.Code Ann. § 2901.05(A) (1975). For more than two years after its enactment, most Ohio courts assumed that this section worked

Greene v. Lindsey

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court’s result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.

At a minimum, the Fourteenth Amendment requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 314 (1950). The question before the Court is whether the notice provided by Kentucky’s statute meets this standard. In answering that question, the first “circumstances” to be considered are the nature and purpose of the action for which notice is required.

Kentucky’s forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky.Rev.Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances

FBI v. Abramson

JUSTICE O’CONNOR, with whom JUSTICE MARSHALL joins, dissenting.

Justice Frankfurter once explained the limits of statutory construction as follows:

[T]he courts are not at large…. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition, certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature…. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction…. * * * *” [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.

Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533, 535 (1947).

The Court does not approach this case in that spirit. Instead, it redrafts the statutory phrase “investigatory records compiled for law enforcement purposes” to exempt investigatory records that “were not compiled for law enforcement purposes,” ante at 456 U. S. 623 (emphasis added). [ Footnote 2/1 ] Unfortunately,

FERC v. Mississippi

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.

I agree with the Court that the Commerce Clause supported Congress’ enactment of the Public Utility Regulatory Policies Act of 1978, Pub.L. 95-617, 92 Stat. 3117 (PURPA). I disagree, however, with much of the Court’s Tenth Amendment analysis. Titles I and III of PURPA conscript state utility commissions into the national bureaucratic army. This result is contrary to the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), antithetical to the values of federalism, and inconsistent with our constitutional history. Accordingly, I dissent from Parts 456 U. S. S. 770|>IV-C of the Court’s opinion. [ Footnote 3/1 ]

I

Titles I and III of PURPA require state regulatory agencies to decide whether to adopt a dozen federal standards governing gas and electric utilities. [ Footnote 3/2 ] The statute describes, in some detail, the procedures state authorities must follow when evaluating these standards, [ Footnote 3/3 ] but does not compel the States to adopt the suggested federal standards. 15 U.S.C. § 3203(a) (1976 ed., Supp. IV); 16 U.S.C. §§ 2621 (a), 2623(a), 2627(b) (1976 ed., Supp. IV). The latter, deceptively generous feature of PURPA persuades the Court that the statute does not intrude impermissibly into state sovereign functions. The Court’s conclusion, however, rests upon a fundamental misunderstanding of the role that state

Inwood Laboratories v. Ives Laboratories

JUSTICE O’CONNOR delivered the opinion of the Court.

This action requires us to consider the circumstances under which a manufacturer of a generic drug, designed to duplicate the appearance of a similar drug marketed by a competitor under a registered trademark, can be held vicariously liable for infringement of that trademark by pharmacists who dispense the generic drug.

I

In 1955, respondent Ives Laboratories, Inc. (Ives), received a patent on the drug cyclandelate, a vasodilator used in long-term therapy for peripheral and cerebral vascular diseases. Until its patent expired in 1972, Ives retained the exclusive right to make and sell the drug, which it did under the registered trademark CYCLOSPASMOL. [ Footnote 1 ] Ives marketed the drug, a white powder, to wholesalers, retail pharmacists, and hospitals in colored gelatin capsules. Ives arbitrarily selected a blue capsule, imprinted with “Ives 4124,” for its 200 mg dosage and a combination blue-red capsule, imprinted with “Ives 4148,” for its 400 mg dosage.

After Ives’ patent expired, several generic drug manufacturers, including petitioners Premo Pharmaceutical Laboratories, Inc., Inwood Laboratories, Inc., and MD Pharmaceutical Co., Inc. (collectively the generic manufacturers), began marketing cyclandelate. [ Footnote 2 ] They intentionally copied the appearance of the CYCLOSPASMOL capsules, selling cyclandelate in 200 mg and 400 mg capsules in colors identical to those selected by Ives. [ Footnote 3 ]

The marketing

Tibbs v. Florida

JUSTICE O’CONNOR delivered the opinion of the Court.

We granted certiorari to decide whether the Double Jeopardy Clause [ Footnote 1 ] bars retrial after a state appellate court sets aside a conviction on the ground that the verdict was against “the weight of the evidence.” After examining the policies supporting the Double Jeopardy Clause, we hold that a reversal based on the weight, rather than the sufficiency, of the evidence permits the State to initiate a new prosecution.

I

In 1974, Florida indicted petitioner Delbert Tibbs for the first-degree murder of Terry Milroy, the felony murder of Milroy, and the rape of Cynthia Nadeau. Nadeau, the State’s chief trial witness, testified that she and Milroy were hitchhiking from St. Petersburg to Marathon, Fla., on February 3, 1974. A man in a green truck picked them up near Fort Myers and, after driving a short way, turned off the highway into a field. He asked Milroy to help him siphon gas from some farm machinery, and Milroy agreed. W hen Nadeau stepped out of the truck a few minutes later, she discovered the driver holding a gun on Milroy. The driver told Milroy that he wished to have sex with Nadeau, and ordered her to strip. After forcing Nadeau to engage in sodomy, the driver agreed that Milroy could leave. As Milroy started to walk away, however, the assailant shot him in the shoulder. When Milroy fell to the ground, pleading for his life, the gunman walked over and taunted, “Does it hurt, boy? You in pain? Does it hurt,

Zobel v. Williams

JUSTICE O’CONNOR, concurring in the judgment.

The Court strikes Alaska’s distribution scheme, purporting to rely solely upon the Equal Protection Clause of the Fourteenth Amendment. The phrase “right to travel” appears only fleetingly in the Court’s analysis, dismissed with an observation that “right to travel analysis refers to little more than a particular application of equal protection analysis.” Ante at 457 U. S. 60, n. 6. The Court’s reluctance to rely explicitly on a right to travel is odd, because its holding depends on the assumption that Alaska’s desire “to reward citizens for past contributions… is not a legitimate state purpose.” Ante at 457 U. S. 63. Nothing in the Equal Protection Clause itself, however, declares this objective illegitimate. Instead, as a full reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals, the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.

I respectfully suggest, therefore, that the Court misdirects its criticism when it labels Alaska’s objective illegitimate. A desire to compensate citizens for their prior contributions is neither inherently invidious nor irrational. Under some circumstances, the objective may be wholly reasonable. [ Footnote 3/1 ] Even a generalized desire to reward citizens for past endurance, particularly in a State where years of hardship only recently have produced prosperity, is not

Hathorn v. Lovorn

JUSTICE O’CONNOR delivered the opinion of the Court.

We granted certiorari to decide whether a state court may order implementation of a change in election procedure over objections that the change is subject to preclearance under § 5 of the Voting Rights Act of 1965. [ Footnote 1 ]

I

Since 1960, the Louisville School District has been coextensive with Winston County, Miss. Until last December, the Louisville mayor and city aldermen appointed three of the five members of the District’s Board of Trustees, and Winston County voters residing outside Louisville elected the other two members.

In 1964, the Mississippi Legislature enacted a statute providing in part:

The boards of trustees of all municipal separate school districts, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five (5) years, but so chosen that the term of office of one (1) member shall expire each year…. [I]n any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one (1) trustee shall be elected from each supervisors district.

1964 Miss. Gen. Laws, ch. 391, p. 563, codified, as amended, in Miss.Code Ann. § 37-7-203(1)(Supp.1981). Winston County is the only Mississippi county in which Highways 14 and 15 intersect. Officials in that county never implemented § 37-7-203(1), because they believed the statute’s reference to Highways 14 and 15 violated a state constitutional prohibition

California v. Grace Brethren Church

JUSTICE O’CONNOR delivered the opinion of the Court.

The principal question presented by the parties to these appeals is whether certain state and federal statutes violate the Establishment and Free Exercise Clauses of the First Amendment [ Footnote 1 ] by requiring religious schools unaffiliated with any church to pay unemployment insurance taxes. We do not reach this substantive question, however, holding instead that the Tax Injunction Act, 28 U.S.C. § 1341, [ Footnote 2 ] deprived the District Court of jurisdiction to hear these challenges. Accordingly, we vacate the judgment below.

I

Last Term, in St. Martin Evangelical Lutheran Church v. South Dakota, 451 U. S. 772 (1981), this Court considered statutory and constitutional challenges to provisions of the Federal Unemployment Tax Act (FUTA), 26 U.S.C. §§ 3301-3311 (1976 ed. and Supp. IV). Because the present claims involve the same provisions that we interpreted in St. Martin, we recount only briefly the substance and legislative history of the relevant statutes before turning to the facts in the present cases.

A

In FUTA, [ Footnote 3 ] Congress has authorized a cooperative federal-state scheme to provide benefits to unemployed workers. The Act requires employers to pay an excise tax on wages paid to employees in “covered” employment, [ Footnote 4 ] but entitles them to a credit of up to 90% of the federal tax for contributions they have paid into federally approved state unemployment compensation programs. [ Footnote

Patsy v. Board of Regents of State of Florida

JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, concurring.

As discussed in JUSTICE POWELL’s dissenting opinion, as well as in the opinion of the court below, considerations of sound policy suggest that a § 1983 plaintiff should be required to exhaust adequate state administrative remedies before filing his complaint. At the very least, prior state administrative proceedings would resolve many claims, thereby decreasing the number of § 1983 actions filed in the federal courts, which are now straining under excessive caseloads. However, for the reasons set forth in the Court’s opinion, this Court already has ruled that, in the absence of additional congressional legislation, exhaustion of administrative remedies is not required in § 1983 actions. Perhaps Congress’ enactment of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1976 ed., Supp. IV), which creates a limited exhaustion requirement for prisoners bringing § 1983 suits, will prompt it to reconsider the possibility of requiring exhaustion in the remainder of § 1983 cases. Reluctantly, I concur.

Edgar v. MITE Corp

JUSTICE O’CONNOR, concurring in part.

I agree with the Court that the case is not moot, and that portions of the Illinois Business Take-Over Act, Ill.Rev.Stat., ch. 121 1/2, 137.51 et seq. (1979), are invalid under the Commerce Clause. Because it is not necessary to reach the preemption issue, I join only Parts I, II, and V of the Court’s opinion, and would affirm the judgment of the Court of Appeals on that basis.

Taylor v. Alabama

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.

The Court holds today that Omar Taylor’s detailed confession was the fruit of an illegal arrest, and consequently, should be suppressed. Because I conclude that neither the facts nor the law supports the Court’s analysis, I respectfully dissent.

I

In the course of their investigation of the Moseley robbery, Montgomery police questioned Charles Martin, who was being held on unrelated rape and robbery charges. Martin stated that “he had heard that Omar Taylor was involved in the robbery of Moseley’s Grocery,” Tr. 6, but the police made no attempt to establish either Martin’s credibility as an informant or the reliability of the information he provided. [ Footnote 2/1 ]

Based only on this tip, which did not provide probable cause, Sergeants Alford and Rutland arrested Taylor a little before 3 p.m. on January 4, 1979. At that time, they told him why he was being arrested and advised him of his Miranda rights, but asked him no questions regarding the robbery. Tr. 20, 24. When they arrived at the police station, the officers turned Taylor over to detectives.

After Taylor had been fingerprinted and signed a form acknowledging his Miranda rights, Detective Wilson questioned him for about 15 minutes, Tr. 48, and placed him in a lineup before one of the victims, Mrs. Moseley. Id. at 37-38. At the lineup, which lasted about an hour, id. at 48, Mrs. Moseley was unable to identify the

Globe Newspaper Co. v. Superior Ct

JUSTICE O’CONNOR, concurring in the judgment.

In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980), the Court held that the First Amendment protects the right of press and public to attend criminal trials. I do not interpret that decision to shelter every right that is “necessary to the enjoyment of other First Amendment rights.” Ante at 457 U. S. 604. Instead, Richmond Newspapers rests upon our long history of open criminal trials and the special value, for both public and accused, of that openness. As the plurality opinion in Richmond Newspapers stresses,

it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.

448 U.S. at 448 U. S. 575. Thus, I interpret neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.

This case, however, does involve a criminal trial. Moreover, it involves a statute mandating automatic exclusion of the public from certain testimony. As the Court explains, Massachusetts has demonstrated no interest weighty enough to justify application of its automatic bar to all cases, even those in which the victim, defendant, and prosecutor have no objection to an open trial. Accordingly, I concur in the judgment.

Jacksonville Bulk Terminals v. Longshoremen

JUSTICE O’CONNOR, concurring in the judgment.

Based on the legislative history of the Norris-La Guardia Act, 29 U.S.C. § 101 et seq., and our previous cases interpreting it, e.g., New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552 (1938), the Court correctly concludes that this case involves a labor dispute within the meaning of § 4 of the Act, 29 U.S.C. § 104. The Court also correctly determines that, under Buffalo Forge Co. v. Steelworkers, 428 U. S. 397 (1976), no injunction may issue pending arbitration because the underlying political dispute is not arbitrable under the collective bargaining agreement. Unless the Court is willing to overrule Buffalo Forge, the conclusion reached by the Court in this case is inescapable. Therefore, I concur in the judgment.