Opinions
Opinions
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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JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE THOMAS join, dissenting.
In my view, petitioner has not shown by “clear and cogent evidence” that its investment in ASARCO was not operationally related to the aerospace business petitioner conducted in New Jersey. Exxon Corp. v. Department of Reve nue of Wis., 447 U. S. 207, 221 (1980) (internal quotation marks omitted). Though I am largely in agreement with the Court’s analysis, I part company on the application of it here.
I agree with the Court that we cannot adopt New Jersey’s suggestion that the unitary business principle be replaced by a rule allowing a State to tax a proportionate share of all the income generated by any corporation doing business there. See ante, at 784. Were we to adopt a rule allowing taxation to depend upon corporate identity alone, as New Jersey suggests, the entire due process inquiry would become fictional, as the identities of corporations would fracture in a corporate shell game to avoid taxation. Under New Jersey’s theory, for example, petitioner could avoid having its ASARCO investment taxed in New Jersey simply by establishing a separate subsidiary to hold those earnings outside New Jersey. A constitutional principle meant to ensure that States tax only business activities they can reasonably claim to have helped support should depend on something more than manipulations of corporate structure. See Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425,
JUSTICE O’CONNOR, dissenting.
The Court reaches the remarkable conclusion that criminal defendants being prosecuted by the State act on behalf of their adversary when they exercise peremptory challenges during jury selection. The Court purports merely to follow precedents, but our cases do not compel this perverse result. To the contrary, our decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions.
I
It is well and properly settled that the Constitution’s equal protection guarantee forbids prosecutors to exercise peremptory challenges in a racially discriminatory fashion. See Batson v. Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S. 400, 409 (1991). The Constitution, however, affords no similar protection against private action. “Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendmen[t]…, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be.” National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 191 (1988) (footnote omitted). This distinction appears on the face of the Fourteenth Amendment, which provides that “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1 (emphasis added). The critical but straightforward question this case presents is whether criminal
JUSTICE O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
In 1988, the Illinois General Assembly enacted the Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act, Ill. Rev. Stat., ch. 111, “7701-7717 (1989), and the Hazardous Waste Laborers Licensing Act, Ill. Rev. Stat., ch. 111, “7801-7815 (1989) (together, licensing acts). The stated purpose of the licensing acts is both “to promote job safety” and “to protect life, limb and property.” “7702, 7802. In this case, we consider whether these “dual impact” statutes, which protect both workers and the general public, are pre-empted by the federal Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U. S. C. § 651 et seq. (OSH Act), and the standards promulgated thereunder by the Occupational Safety and Health Administration (OSHA).
*Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Jane Lauer Barker and Richard Corenthal, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan,
JUSTICE O’CONNOR delivered the opinion of the Court. These cases implicate one of our Nation’s newest problems of public policy and perhaps our oldest question of constitutionallaw. The public policy issue involves the disposal of radioactive waste: In these cases, we address the constitutionality of three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. 99-240, 99 Stat. 1842, 42 U. S. C. § 2021bet seq.The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States. We conclude that while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so. We therefore find that only two of the Act’s three provisions at issue are consistent with the Constitution’s allocation of power to the Federal Government.
I
We live in a world full of low level radioactive waste. Radioactive material is present in luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants. Low level radioactive waste is generated by the Government, by hospitals, by research institutions, and by various industries. The waste must be isolated from humans for long
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, concurring in the judgment.
I agree that the evidence sufficiently supported respondent’s conviction. I write separately only to express disagreement with certain statements in JUSTICE THOMAS’ extended discussion, ante, at 285-295, of this Court’s habeas corpus jurisprudence.
First, JUSTICE THOMAS errs in describing the pre-1953 law of habeas corpus. Ante, at 285. While it is true that a state prisoner could not obtain the writ if he had been provided a full and fair hearing in the state courts, this rule governed the merits of a claim under the Due Process Clause. It was not a threshold bar to the consideration of O’CONNOR, J., concurring in judgment
other federal claims, because, with rare exceptions, there were no other federal claims available at the time. During the period JUSTICE THOMAS discusses, the guarantees of the Bill of Rights were not yet understood to apply in state criminal prosecutions. The only protections the Constitution afforded to state prisoners were those for which the text of the Constitution explicitly limited the authority of the States, most notably the Due Process Clause of the Fourteenth Amendment. And in the area of criminal procedure, the Due Process Clause was understood to guarantee no more than a full and fair hearing in the state courts. See, e. g., Ponzi v. Fessenden, 258 U. S. 254, 260 (1922) (“One accused of crime has a right to a full and fair trial according to the
JUSTICE O’CONNOR, concurring in Parts I and II, and concurring in the judgment.
I join Parts I and II of the Court’s opinion. I do not agree, however, that the replacement of stale gum served an independent business function. The replacement of stale gum by the sales representatives was part of ensuring the product was available to the public in a form that may be purchased. Making sure that one’s product is available and properly displayed serves no independent business function apart from requesting purchases; one cannot offer a product for sale if it is not available. I agree, however, that the storage of gum in the State and the use of agency stock checks were not ancillary to solicitation and were not de minimis. On that basis, I would hold that Wrigley’s income is subject to taxation by Wisconsin.
JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring in the judgment.
I concur in the judgment of the Court, but I reject its intimation that the balancing of equities is inappropriate in evaluating whether state criminal procedures amount to due process. Ante, at 443-446. We obviously applied the balancing test of Mathews v. Eldridge, 424 U. S. 319 (1976), in Ake v. Oklahoma, 470 U. S. 68 (1985), a case concerning criminal procedure, and I do not see that Ake can be distinguished here without disavowing the analysis on which it rests. The balancing of equities that Mathews v. Eldridge outlines remains a useful guide in due process cases.
In Mathews, however, we did not have to address the question of how much weight to give historical practice; in the context of modern administrative procedures, there was no O’CONNOR, J., concurring in judgment
historical practice to consider. The same is true of the new administrative regime established by the federal criminal sentencing guidelines, and I have agreed that Mathews may be helpful in determining what process is due in that context. See Burns v. United States, 501 U. S. 129, 147-148 (1991) (SOUTER, J., dissenting). While I agree with the Court that historical pedigree can give a procedural practice a presumption of constitutionality, see Patterson v. New York, 432 U. S. 197, 211 (1977), the presumption must surely be rebuttable.
The concept of due process is, “perhaps, the least frozen concept of our law-the least confined
JUSTICE O’CONNOR, dissenting.
I believe the Court of Appeals properly balanced the considerations set forth in Barker v. Wingo, 407 U. S. 514 (1972). Although the delay between indictment and trial was lengthy, petitioner did not suffer any anxiety or restriction on his liberty. The only harm to petitioner from the lapse of time was potential prejudice to his ability to defend his case. We have not allowed such speculative harm to tip the scales. Instead, we have required a showing of actual prejudice to the defense before weighing it in the balance. As we stated in United States v. Loud Hawk, 474 U. S. 302, 315 (1986), the “possibility of prejudice is not sufficient to support respondents’ position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.” The Court of Appeals followed this holding, and I believe we should as well. For this reason, I respectfully dissent.
Notes
3 Citing United States v. Broce, 488 U. S. 563, 569 (1989), the Government argues that, by pleading guilty, Doggett waived any right to claim that the delay would have prejudiced him had he gone to trial. Brief for United States 30. Yet Doggett did not sign a guilty plea simpliciter, but a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), thereby securing
JUSTICE O’CONNOR, dissenting.
I continue to be of the view that in certain circumstances a “reasonable” attorney’s fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take a case in the first place. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 731-734 (1987) (Delaware Valley II) (O’CONNOR, J., concurring in part and concurring in judgment). As JUSTICE BLACKMUN cogently explains, when an attorney must choose between two cases-one with a client who will pay the attorney’s fees win or lose and the other who can only promise the statutory compensation if the case is successful-the attorney will choose the fee-paying client, unless the contingency client can promise an enhancement of sufficient magnitude to justify the extra risk of nonpayment. Ante, at 568-569. Thus, a reasonable fee should be one that would “attract competent counsel,” Delaware Valley II, supra, at 733 (O’CONNOR, J., concurring in part and concurring in judgment), and in some markets this must include the assurance of a contingency enhancement if the plaintiff should prevail. I therefore dissent from the Court’s holding that a “reasonable” attorney’s fee can never include an enhancement for cases taken on contingency. In my view the promised enhancement should be “based on the difference in market treatment of contingent fee cases as a class, rather than on an
JUSTICE O’CONNOR, concurring in No. 91-155 and concurring in the judgment in No. 91-339, post, p. 830.
In the decision below, the Court of Appeals upheld a ban on solicitation of funds within the airport terminals operated by the Port Authority of New York and New Jersey, but struck down a ban on the repetitive distribution of printed or written material within the terminals. 925 F.2d 576 (CA2 1991). I would affirm both parts of that judgment.
I concur in the Court’s opinion in No. 91-155 and agree that publicly owned airports are not public fora. Unlike public streets and parks, both of which our First Amendment jurisprudence has identified as “traditional public fora,” airports do not count among their purposes the “free exchange of ideas,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , 800 (1985); they have not “by long tradition or by government fiat … been devoted to assembly and debate,” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 , 45 (1983); nor have they “time out of mind, … been used for purposes of … communicating thoughts between citizens, and discussing public questions,” Hague v. Committee for Industrial Organization, 307 U. S. 496 , 515 (1939). Although most airports do not ordinarily restrict public access, “[p]ublicly owned or operated property does not become a ‘public forum’ simply because members of the public are permitted to come and go at will.” United States v. Grace, 461 U. S. 171 , 177 (1983); see also
JUSTICE O’CONNOR delivered the opinion of the Court, except as to Part III.
As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants’ allocation of 922,819 overseas military personnel to the State
* Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Sanford M. Cohen, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Thomas D. Barr, and Robert S. Rifkind filed a brief for the State of New York et al. as amici curiae urging affirmance.
Kenneth O. Eikenberry, Attorney General of Washington, James M.
Johnson, Senior Assistant Attorney General, and J. Lawrence Conifffiled a brief for the State of Washington as amicus curiae. designated in their personnel files as their “home of record” altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A threejudge panel of the United States District Court for the District of Massachusetts held that the decision to allocate
JUSTICE O’CONNOR, concurring.
I join the opinion of the Court, which requires public universities, like public elementary and secondary schools, to affirmatively dismantle their prior de jure segregation in order to create an environment free of racial discrimination and to make aggrieved individuals whole. See Brown v. Board of Education, 349 U. S. 294, 299 (1955); Milliken v. Bradley, 418 U. S. 717, 746 (1974). I write separately to emphasize that it is Mississippi’s burden to prove that it has undone its prior segregation, and that the circumstances in which a State may maintain a policy or practice traceable to de jure segregation that has segregative effects are narrow. In light of the State’s long history of discrimination, and the lost educational and career opportunities and stigmatic harms caused by discriminatory educational systems, see Brown v. Board of Education, 347 U. S. 483, 494 (1954); Sweatt v. Painter, 339 U. S. 629, 634-635 (1950); McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-641 (1950), the courts below must carefully examine Mississippi’s proffered justifications for maintaining a remnant of de jure segregation to ensure that such rationales do not merely mask the perpetuation of discriminatory practices. Where the State can accomplish legitimate educational objectives through less segregative means, the courts may infer lack of good faith; “at the least it places a heavy burden upon the [State] to explain its preference for an
For the reasons expressed in the Opinions of JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, see ante,p. 685 (O’CONNOR, J., concurring in No. 91-155 and concurring in judgment in No. 91-339),ante,p. 693 (KENNEDY, J., concurring in judgments), and ante,p. 709 (SOUTER, J., concurring in judgment in No. 91-339 and dissenting in No. 91-155), the judgment of the Court of Appeals holding that the ban on distribution of literature in the Port Authority airport terminals is invalid under the First Amendment is
Affirmed.
JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV; V-B, and V-D.
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade , 410 U. S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae , the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra , at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s consent. § 3206. Another provision of
JUSTICE O’CONNOR delivered the opinion of the Court. Kentucky’s “Persistent felony offender sentencing” statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid underBoykinv.Alabama,395 U. S. 238(1969). The trial court, after a hearing, rejected this claim, and respondent was convicted and sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky’s procedure for determining a prior conviction’s validity underBoykinviolates the Due Process Clause of the Fourteenth
* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal. Amendment because it does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding
JUSTICE O’CONNOR delivered the opinion of the Court. The question in this case is whether the Supreme Court of Arizona has cured petitioner’s death sentence of vagueness error.
I
On August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella’s hotel. There, Corella communicated to petitioner that Crummett was “loaded,” and petitioner in turn whispered to Erwin that he intended to rob Crummett.
After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crummett to the ground and next threw several large rocks at Crummett’s head. Crummett’s watch and wallet were OCTOBER TERM, 1992 Syllabus RICHMOND v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-7094. Argued October 13, 1992-Decided December 1,1992 Following a sentencing hearing on petitioner Richmond’s first degree murder conviction, the Arizona trial judge found three statutory aggravating factors, including, under Ariz. Rev. Stat.
JUSTICE O’CONNOR, concurring.
If ever there was a plaintiff who deserved no attorney’s fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Appeals, he got one dollar from one defendant. As the Court holds today, that is simply not the type of victory that merits an award of attorney’s fees. Accordingly, I join the Court’s opinion and concur in its judgment. I write separately only to explain more fully why, in my view, it is appropriate to deny fees in this case.
I
Congress has authorized the federal courts to award “a reasonable attorney’s fee” in certain civil rights cases, but only to “the prevailing party.” 42 U. s. C. § 1988; Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 789 (1989). To become a prevailing party, a plaintiff must obtain, at an absolute minimum, “actual relief on the merits of [the] claim,” ante, at 111, which “affects the behavior of the defendant towards the plaintiff,” Hewitt v. Helms, 482 U. S. 755, 761 (1987) (emphasis omitted); accord, ante, at 111-112 (relief obtained must “alte[r] the legal relationship between the parties” and “modif[y] the defendant’s behavior in a way that directly benefits the plaintiff”). Joseph Farrar met that minimum condition for prevailing party status. Through this lawsuit, he obtained an enforceable judgment for one dollar in nominal damages. One dollar is not exactly
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, dissenting.
Petitioners act in organized groups to overwhelm local police forces and physically blockade the entrances to respondents’ clinics with the purpose of preventing women from exercising their legal rights. Title 42 U. S. C. § 1985(3) provides a federal remedy against private conspiracies aimed at depriving any person or class of persons of the “equal protection of the laws,” or of “equal privileges and immunities under the laws.” In my view, respondents’ injuries and petitioners’ activities fall squarely within the ambit of this statute.
I
The Reconstruction Congress enacted the Civil Rights Act of 1871, also known as the Ku Klux Act (Act), 17 Stat. 13, to combat the chaos that paralyzed the post-War South. Wil son v. Garcia, 471 U. S. 261, 276-279 (1985); Briscoe v. LaHue, 460 U. S. 325, 336-339 (1983). Section 2 of the Act extended the protection of federal courts to those who effectively were prevented from exercising their civil rights by the threat of mob violence. Although the immediate purpose of § 1985(3) was to combat animosity against blacks and their supporters, Carpenters v. Scott, 463 U. S. 825, 836 (1983), the language of the Act, like that of many Reconstruction statutes, is more expansive than the historical circumstances that inspired it. The civil-remedy component of § 2, codified at 42 U. S. C. § 1985(3), speaks in general terms, and provides a federal cause of action to any person injured or
JUSTICE O’CONNOR delivered the opinion of the Court. Rule S(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged together “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Rule 14 of the Rules, in turn, permits a district court to grant a severance of defendants if “it appears that a defendant or the government is prejudiced by a joinder.” In this case, we consider whether Rule 14 requires severance as a matter of law when codefendants present “mutually antagonistic defenses.”
I
Gloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto were accused of distributing illegal drugs in the Chicago area, operating primarily out of Soto’s bungalow in Chicago and Zaftro’s apartment in Cicero, a nearby suburb. One day, Government agents observed Garcia and Soto place a large box in Soto’s car and drive from Soto’s bungalow to Zaftro’s apartment. The agents followed the two as they carried the box up the stairs. When the agents identified themselves, Garcia and Soto dropped the box and ran into the apartment. The agents entered the apartment in pursuit and found the four petitioners in the living room. The dropped box contained 55 pounds of cocaine. After obtaining a search warrant for the apartment, agents found approximately 16 pounds of cocaine, 25 grams of heroin, and 4 pounds of marijuana inside a suitcase in a closet. Next to the suitcase
JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring.
I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed-“contrary to contemporary standards of decency,” post, at 430 (dissenting opinion) (relying on Ford v. Wainwright, 477 U. S. 399, 406 (1986)), “shocking to the conscience,” post, at 430 (relying on Rochin v. California, 342 U. S. 165, 172 (1952)), or offensive to a ‘” “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,”‘” ante, at 407-408 (opinion of the Court) (quoting Medina v. California, 505 U. S. 437, 445-446 (1992), in turn quoting Patterson v. New York, 432 U. S. 197,202 (1977))-the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word.
As the Court explains, ante, at 398-400, petitioner is not innocent in the eyes of the law because, in our system of justice, “the trial is the paramount event for determining the guilt or innocence of the defendant,” ante, at 416. Accord, post, at 441 (dissenting opinion). In petitioner’s case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion and concur in its judgment. I write separately only to point out that today’s decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington, 466 U. S. 668 (1984). The determinative question-whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694-remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry. As we explained in Strickland, certain factors, real though they may be, simply cannot be taken into account:”An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.” Id., at 695.
Since Strickland, we have recognized that neither the likely effect of perjured testimony nor the impact
JUSTICE O’CONNOR delivered the opinion of the Court. This is yet another dispute arising out of legislative redistricting and reapportionment. See,e.g.,Growev.Emison,ante, p. 25. Today we consider whether Ohio’s creation of several legislative districts dominated by minority voters violated § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973.
I
Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years. Ohio Const., Art. XI, § 1. In 1991, the board selected James Tilling to draft a proposed apportionment plan. After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majorityminority districts-districts in which a majority of the population is a member of a specific minority group. The board adopted the plan with minor amendments by a 3-to-2 vote along party lines. The board’s three Republican members voted for the plan; the two Democrats voted against it. 794 F. Supp. 695, 698, 716-717 (ND Ohio 1992); App. to Juris. Statement 160a-167a, 183a.
Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan’s invalidation. They alleged that the plan violated § 2 of the Voting
JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring.
I join the Court’s opinion and write separately simply to clarify that in my view these children have a constitutionally protected interest in freedom from institutional confinement. That interest lies within the core of the Due Process Clause, and the Court today does not hold otherwise. Rather, we reverse the decision of the Court of Appeals because the INS program challenged here, on its face, complies with the requirements of due process.
“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992). “Freedom from bodily restraint” means more than freedom from handcuffs, straitjackets, or detention cells. A person’s core liberty interest is also implicated when she is confined in a prison, a mental hospital, or some other form of custodial institution, even if the conditions of confinement are liberal. This is clear beyond cavil, at least where adults are concerned. “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause…. ” De Shaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 200 (1989). The institutionaliz
JUSTICE O’CONNOR, with whom JUSTICE SCALIA, JUSTICE SOUTER, and JUSTICE THOMAS join, dissenting.
Today the Court replaces the straightforward analysis commended by the language of Bankruptcy Rule 9006(b)(1) with a balancing test. Because the Court’s approach is inconsistent with the Rule’s plain language and unduly complicates the task of courts called upon to apply it, I respectfully dissent.
I
Bankruptcy Rule 9006(b)(1) provides that, if a party moves for permission to act after having missed a deadline, the court “may at any time in its discretion… permit the act to be done where the failure to act was the result of excusable neglect.” This language establishes two requirements that must be met before untimely action will be permitted. First, no relief is available unless the failure to comply with the deadline “was the result of excusable neglect.” Bkrtcy. Rule 9006(b)(1). Second, the court may withhold relief if it believes forbearance inappropriate; the statute does not re quire the court to forgive every omission caused by excusable neglect, but states that the court “may” grant relief “in its discretion.” Ibid. (emphasis added). Thus, the court must at the threshold determine its authority to allow untimely action by asking whether the failure to meet the deadline resulted from excusable neglect; if the answer is yes, then the court should consider the equities and decide whether to excuse the error.
Instead of following the plain meaning of the Rule and examining
JUSTICE O’CONNOR delivered the opinion of the Court.
In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” Idaho Code § 19-2515(g)(6) (1987). The sole question we must decide is whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.
I
The facts underlying this case could not be more chilling.
Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims-who were shot, stabbed, beaten, or strangled to death-have been recovered in seven States. Creech has said repeatedly that, unless he is completely isolated from humanity, he likely will continue killing. And he has identified by name three people outside prison walls he intends to kill if given the opportunity.
Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech’s junior, was a nonviolent car thief. He was also physically