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, dissenting.
If the school board can set the curriculum, select teachers, and determine initially what books to purchase for the school library, it surely can decide which books to discontinue or remove from the school library, so long as it does not also interfere with the right of students to read the material and to discuss it. As JUSTICE REHNQUIST persuasively argues, the plurality’s analysis overlooks the fact that, in this case, the government is acting in its special role as educator.
I do not personally agree with the Board’s action with respect to some of the books in question here, but it is not the function of the courts to make the decisions that have been properly relegated to the elected members of school boards. It is the school board that must determine educational suitability, and it has done so in this case. I therefore join THE CHIEF JUSTICE’s dissent.
JUSTICE O’CONNOR, concurring.
I join in the Court’s opinion, but write separately to emphasize that the authority of the Federal Home Loan Bank Board to preempt state laws is not limitless. * Although Congress delegated broad power to the Board to ensure that federally chartered savings and loan institutions “would remain financially sound,” ante at 458 U. S. 168, it is clear that HOLA does not permit the Board to preempt the application of all state and local laws to such institutions. Nothing in the language of § 5(a) of HOLA, which empowers the Board to “provide for the organization, incorporation, examination, operation, and regulation” of federally chartered savings and loans, remotely suggests that Congress intended to permit the Board to displace local laws, such as tax statutes and zoning ordinances, not directly related to savings and loan practices. Accordingly, in my view, nothing in the Court’s opinion should be read to the contrary.
Notes
* At one point in today’s opinion, the Court states that “we need not decide whether the HOLA or the Board’s regulations occupy… the entire field of federal savings and loan regulation.” Ante at 458 U. S. 159, n. 14.
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the question whether an employer charged with discrimination in hiring can toll the continuing accrual of backpay liability under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), simply by unconditionally offering the claimant the job previously denied, or whether the employer also must offer seniority retroactive to the date of the alleged discrimination. [ Footnote 1 ]
The question has considerable practical significance because of the lengthy delays that too often attend Title VII litigation. [ Footnote 2 ] The extended time it frequently takes to obtain satisfaction in the courts may force a discrimination claimant to suffer through years of underemployment or unemployment before being awarded the job the claimant deserves. Court delays, of course, affect all litigants. But for the victim of job discrimination, delay is especially unfortunate. The claimant cannot afford to stand aside while the wheels of justice grind slowly toward the ultimate resolution of the lawsuit. The claimant needs work that will feed a family and restore self-respect. A job is needed -now. In this case, therefore, we must determine how best to fashion the remedies available under Title VII to fulfill this basic need.
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A
In June and July, 1971, Judy Gaddis, Rebecca Starr, and Zettie Smith applied at a Ford Motor Co. (Ford) parts warehouse located in Charlotte, N.C., for jobs as “picker-packers,” “picking” ordered parts from
JUSTICE O’CONNOR, concurring in part and dissenting in part.
I concur in the Court’s opinion insofar as it holds that the State may not charge out-of-state tuition to nonimmigrant aliens who, under federal law, are exempt from both state and federal taxes, and who are domiciled in the State. Imposition of out-of-state tuition on such aliens conflicts with federal law exempting them from state taxes, since, after all, the University admits that it seeks to charge the higher tuition in order to recover costs that state income taxes normally would cover.
I cannot join the remainder of the Court’s opinion, however, for it wholly fails to address the criticisms leveled in JUSTICE REHNQUIST’s dissenting opinion. As JUSTICE REHNQUIST makes clear, the class of G-4 aliens is not homogenous: some G-4 aliens are exempt under federal law from state taxes, while other G-4 aliens are not. Moreover, the legislative history of § 4(b) of the International Organizations Immunities Act, later reenacted as § 893 of the Internal Revenue Code of 1954, 26 U.S.C. § 893, from which many G-4 aliens derive their federal tax immunity, demonstrates that Congress did not intend to exempt such aliens from state taxes, choosing instead to leave the matter to the state and local authorities. Thus, I disagree with the Court when it states that the “State may not recoup indirectly from respondents’ parents the taxes that the Federal Government has expressly barred the State from collecting,” ante at 458 U. S.
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
The $39.9 million in dividend income at issue in this case was earned by four foreign subsidiaries of F. W. Woolworth Co.: F. W. Woolworth GmbH (Germany), F. W. Woolworth, Ltd. (Canada), F. W. Woolworth, S. A. de C. V. Mexico (Mexico), and F. W. Woolworth Co., Ltd. (England). F. W. Woolworth Co. wholly owned its German, Canadian, and Mexican subsidiaries, and had a 52.7% interest in its English subsidiary. During the tax year in question, the subsidiaries apparently operated somewhat autonomously in their respective markets, but “mail, telephone, and teletype communication between the upper echelons of management of the parent and the subsidiaries” was ” frequent.'” Ante at 458 U. S. 368 (footnote omitted) (quoting App. to Juris.Statement 34a). Moreover,
[d]ecisions about major financial decisions, such as the amount of dividends to be paid by the subsidiaries and the creation of substantial debt, had to be approved by the parent,
and “Woolworth’s published financial statements, such as its annual reports, were prepared on a consolidated basis.” Ante at 458 U. S. 368 -39 (citations and footnotes omitted).
These controlled subsidiaries, operating in geographically diverse markets in the same line of business as F. W. Woolworth itself, were simply not “unrelated,” [ Footnote 2/1 ] “discrete business enterprise[s],” [ Footnote 2/2 ] “hav[ing] nothing to do with the activities” [ Footnote 2/3
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
The Court today declares that the Due Process Clause of the Constitution forbids a State to tax a proportionate share of the investment income of a nondomiciliary corporation doing business within its borders. In so doing, the Court groundlessly strikes down the eminently reasonable assertion of Idaho’s taxing power at issue in this case. Far more dismaying, however, is that the Court’s reliance on the Due Process Clause may deprive Congress of the authority necessary to rationalize the joint taxation of interstate commerce by the 50 States.
Today, the taxpayer wins. Yet in the end, today’s decision may prove to be a loss for all concerned -interstate businesses themselves, which the Commerce Clause guarantees the opportunity to serve the country’s needs unimpeded by a parochial hodgepodge of overlapping and conflicting tax levies; the Nation, which demands a prosperous interstate market; and the States, which deserve fair return for the advantages they afford interstate enterprise. For while this Court has the authority to invalidate a specific state tax, only Congress has both the ability to canvass the myriad facts and factors relevant to interstate taxation and the power to shape a nationwide system that would guarantee the States fair revenues and offer interstate businesses freedom from strangulation by multiple paperwork and tax burdens. Unfortunately, by apparently stripping Congress
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, concurring.
I concur in the Court’s opinion today holding that a cause of action based on 42 U.S.C. § 1981 requires proof of intent to discriminate, that the employers cannot be held vicariously liable for the discrimination practiced by Local 542, and that § 1981 does not impose a “nondelegable duty” on the employers to insure that there is no discrimination in the Union’s selection of the workforce. I write separately, however, in order to state expressly one of the options open to the District Court on remand, and to elaborate on the Court’s comments regarding the scope of the federal courts’ equitable power to afford full relief.
I
In determining that the petitioners cannot be held vicariously liable for the discriminatory conduct of the JATC, the Court is careful to note that its holding is based on the failure of the trial court to make “findings regarding the relationship between the JATC and petitioners… that might support application of respondeat superior. ” Ante at 458 U. S. 394. [ Footnote 2/1 ] In particular, because the record contains no findings regarding whether the employers maintain some control over the activities of the JATC, either through the employer-appointed trustees or through other means, the doctrine of respondeat superior is simply inapplicable.
I would briefly note the limits of the Court’s holding. Once this case has been remanded to the District Court, nothing in the Court’s opinion prevents
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the narrow issue of whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment.
I
The facts are not in dispute. In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi, now the oldest state-supported all-female college in the United States. 1884 Miss.Gen.Laws, Ch. 30, § 6. The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women. [ Footnote 1 ]
In 1971, MUW established a School of Nursing, initially offering a 2-year associate degree. Three years later, the school instituted a 4-year baccalaureate program in nursing, and today also offers a graduate program. The School of Nursing has its own faculty and administrative officers, and establishes its own criteria for admission. [ Footnote 2 ]
Respondent, Joe Hogan, is a registered nurse but does not hold a baccalaureate degree in nursing. Since 1974, he has worked as a nursing supervisor in a medical center in Columbus, the city in which MUW is located. In 1979, Hogan applied for admission to the MUW School of Nursing’s baccalaureate program. [ Footnote 3 ] Although he was otherwise qualified, he was denied admission to the School of Nursing solely because of his sex. School officials
JUSTICE O’CONNOR, concurring.
Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except “material with serious literary, scientific, or educational value,” ante at 458 U. S. 766, from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s facial attack. The compelling interests identified in today’s opinion, see ante at 458 U. S. 756 -764, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while masturbating surely suffers the same psychological harm whether the community labels the photograph “edifying” or “tasteless.” The audience’s appreciation of the depiction is simply irrelevant to New York’s asserted interest in protecting children from psychological, emotional, and mental harm.
An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York’s statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the “portrayal[s] somewhat more realistic’ by utilizing or photographing
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.
Today the Court holds that the Eighth Amendment prohibits a State from executing a convicted felony murderer. I dissent from this holding not only because I believe that it is not supported by the analysis in our previous cases, but also because today’s holding interferes with state criteria for assessing legal guilt by recasting intent as a matter of federal constitutional law.
I
The evidence at trial showed that, at approximately 7:30 a.m. on April 1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas and Eunice Kersey’s farmhouse on the pretext of obtaining water for their overheated car. [ Footnote 2/1 ] When Thomas Kersey retrieved a water jug to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him, and told Jeanette Armstrong to take his wallet. Hearing her husband’s cries for help, Eunice Kersey came around the side of the house with a gun and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette Armstrong, returned the fire, killing both of the Kerseys. [ Footnote 2/2 ] The Armstrongs dragged the bodies into the kitchen, took Thomas Kersey’s money, and fled to a nearby car, where the petitioner, Earl Enmund, was waiting to help the Armstrongs escape. Record 1348-1351. [ Footnote 2/3 ]
Ida Jean Shaw [ Footnote 2/4 ] testified that, on March 31, the petitioner and the two Armstrongs were staying at her house. When she
JUSTICE O’CONNOR, concurring in the judgment.
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.
Washington v. Texas, 388 U. S. 14, 388 U. S. 19 (1967). In short, the right to compulsory process is essential to a fair trial. Today’s decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a “plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense.” Ante at 458 U. S. 873. A preferable approach would be to accommodate both the Government’s interest in prompt deportation of illegal aliens and the defendant’s need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation.
I
One cannot discount the importance of the Federal Government’s role in the regulation of immigration. [ Footnote 2/1 ] As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, have decided that prompt deportation
JUSTICE O’CONNOR delivered the opinion of the Court.
Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent’s subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to “enter” the United States could be litigated only in a deportation hearing, and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing.
I
Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March, 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, concurring in part and dissenting in part.
I concur in the judgment that the Socialist Workers Party (SWP) has sufficiently demonstrated a reasonable probability that disclosure of contributors will subject those persons to threats, harassment, or reprisals, and thus, under Buckley v. Valeo, 424 U. S. 1 (1976), the State of Ohio cannot constitutionally compel the disclosure. Further, I agree that the broad concerns of Buckley apply to the required disclosure of recipients of campaign expenditures. But, as I view the record presented here, the SWP has failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals. Moreover, the strong public interest in fair and honest elections outweighs any damage done to the associational rights of the party and its members by application of the State’s expenditure disclosure law.
I
Buckley upheld the validity of the Federal Election Campaign Act of 1971, which requires the disclosure of names of both contributors to a campaign and recipients of expenditures from the campaign. Buckley recognized three major governmental interests in disclosure requirements: deterrence of corruption; enhancement of voters’ knowledge about a candidate’s possible allegiances and interests; and provision of the data and means necessary to detect
JUSTICE O’CONNOR, with whom JUSTICE POWELL joins, concurring in the judgment.
The doctrine of prior appropriation includes the requirement that the appropriator’s use of water be beneficial and reasonable. What is reasonable, of course, does not admit of ready definition, being dependent upon the particular facts and circumstances of each case. In this case, the Special Master has cast an accusatory finger at the Vermejo Conservancy District, concluding that “[t]he system of canals used to transport the water to the fields is inefficient.” Report of Special Master 8.
Undoubtedly, there is evidence in the record indicating that large losses of water occur through seepage and evaporation in transporting waters of the Vermejo through open ditches for irrigation and stock watering. Tr. 1315. It is a leap, however, from observing that large losses occur to concluding, as Colorado would have the Court do, that the practices of the Conservancy District are wasteful or unreasonable. As the Court observes, ante at 459 U. S. 185, the extent of the duty to conserve that may be placed upon the user is limited to measures that are “financially and physically feasible,” Wyoming v. Colorado, 259 U. S. 419, 259 U. S. 484 (1922), and “within practicable limits.” Ibid. [ Footnote 2/1 ] Nevertheless, in concluding that the Conservancy District’s distribution system is “inefficient,” the Special Master made no factual finding that improved economy in that system is within the practicable means
JUSTICE O’CONNOR delivered the opinion of the Court.
In 1972, Congress amended the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. (part 2) 1424, as amended, 33 U.S.C. § 901 et seq. (1976 ed. and Supp. V) (hereinafter LHWCA or Act). Before 1972, LHWCA coverage extended only to injuries sustained on the actual “navigable waters of the United States (including any dry dock).” 44 Stat. (part 2) 1426. As part of its 1972 Amendments of the Act, Congress expanded the “navigable waters” situs to include certain adjoining land areas, § 3(a), 86 Stat. 1251, 33 U.S.C. § 903(a). At the same time, Congress added a status requirement that employees covered by the Act must be “engaged in maritime employment” within the meaning of § 2(3) of the Act. [ Footnote 1 ] We granted certiorari in this case, 455 U.S. 937 (1982), to consider whether a marine construction worker, who was injured while performing his job upon actual navigable waters, [ Footnote 2 ] and who would have been covered by the Act before 1972, is “engaged in maritime employment,” and thus covered by the amended Act. [ Footnote 3 ] We hold that the worker is “engaged in maritime employment” for purposes of coverage under the amended LHWCA. Accordingly, we reverse the decision below.
I
The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 136th and 145th Streets
JUSTICE O’CONNOR, dissenting.
I agree with the Court that the National Labor Relations Board (NLRB) could reasonably determine in this case that reimbursing the petitioner is not necessary to effectuate the objectives of the National Labor Relations Act (Act). My disagreement is with the Court’s conclusion that the Board provided an adequate explanation for its decision. The Board offered three reasons for its conclusion that reimbursing the petitioner would not effectuate the purposes of the Act. Each of its stated reasons was in error or inadequate to justify its conclusion. I would therefore remand the case to the Board in order to give it an opportunity to determine the appropriateness of reimbursement in light of the Court’s Opinion.
I
A brief review of the facts is useful in understanding the inadequacy of the Board’s explanation for its decision.
For over a decade, there has been a dispute between respondent Building Material and Dump Truck Drivers, Teamsters Local 36 (Union), and respondent California Dump Truck Owners Association (Association) over the availability of hauling jobs for nonunion truck operators. In June, 1977, three contractors’ associations, which are respondents in this case (Contractors), entered into a new master labor agreement (Agreement) with the Union which required signatory contractors to transport “all materials… to or from or on the site of the work by workmen furnished by the appropriate craft [union]….” App. 10. The Agreement also
JUSTICE O’CONNOR delivered the opinion of the Court.
Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 384 U. S. 765, n. 9, and hold that the admission into evidence of a defendant’s refusal to submit to such a test likewise does not offend the right against self-incrimination.
I
Two Madison, South Dakota, police officers stopped respondent’s car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver’s license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself. The officers smelled alcohol on his breath. Respondent did not have a driver’s license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked respondent to touch his finger to his nose and to walk a straight line. When respondent failed these field sobriety tests, he was placed under arrest and read his Miranda rights. [ Footnote 1 ] Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. App. 11. Reading from a printed card, the officers then asked respondent to submit to a blood alcohol test and warned him that he could lose his license if he refused. [ Footnote 2 ] Respondent refused to
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN, JUSTICE REHNQUIST, and JUSTICE STEVENS join, dissenting.
The issue that confronts the Court is one of statutory construction: whether the Robinson-Patman Act covers purchases of commodities by state and local governments for resale in competition with private retailers. [ Footnote 2/1 ] The Court’s task, therefore, is to discern the intent of the 1936 Congress which enacted the Robinson-Patman Act. I do not agree with the majority that this issue can be resolved by reference to cases under the Sherman Act or other statutes, or by reliance on the broad remedial purposes of the antitrust laws generally. The 1936 Congress simply did not focus on this issue. The business and legal communities have assumed for the past four decades that such purchases are not covered. For these reasons, as explained more fully below, I respectfully dissent.
I
A
The majority relies extensively on the interpretation this Court has given to the term “person” under the Sherman Act and other statutes as a guide to whether the terms “person” and “purchasers,” as used in § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act (Act), 49 Stat. 1526, 15 U.S.C. § 13, include state and local governmental entities. See ante at 460 U. S. 155 -156. In my view, such reliance is misplaced. The question of the Robinson-Patman Act’s treatment of governmental purchases requires an independent examination of the legislative history of that Act to ascertain
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, concurring in part and dissenting in part.
I agree with the Court that gubernatorial consent is required for the acquisition of wetlands easements, that the required consent was given in this case, and that North Dakota may not simply revoke its consent at will. I disagree with the Court, however, in its holding that the United States acquired its easements pursuant to the consents within a reasonable time as a matter of law. I would remand this case in order to allow the lower courts an opportunity to determine whether the Federal Government delayed unreasonably in making its acquisitions. Because I would remand, and because I believe that the Court decides another issue that is not properly before the Court, I dissent in part.
First, in its brief, the Government concedes that
Congress must have assumed that the Secretary would be able to rely on the continued effectiveness – at least for a reasonable period of time -of gubernatorial consents.
Brief for United States 26 (emphasis added). [ Footnote 2/1 ] The Government’s concession on this point reflects the position, correct in my view, that Congress did not intend that gubernatorial consents, once given, could never be withdrawn even if the United States failed to acquire its easements within a reasonable time. Although there is virtually no legislative history concerning the consent provision in 16 U.S.C. 715k-5, the provision represents an attempt to give to the
JUSTICE O’CONNOR delivered the opinion of the Court.
These consolidated cases present the question of the applicability of the tax benefit rule to two corporate tax situations: the repayment to the shareholders of taxes for which they were liable, but that were originally paid by the corporation, and the distribution of expensed assets in a corporate liquidation. We conclude that, unless a nonrecognition provision of the Internal Revenue Code prevents it, the tax benefit rule ordinarily applies to require the inclusion of income when events occur that are fundamentally inconsistent with an earlier deduction. Our examination of the provisions granting the deductions and governing the liquidation in these cases leads us to hold that the rule requires the recognition of income in the case of the liquidation, but not in the case of the tax refund.
I
In No. 81-485, Hillsboro National Bank v. Commissioner, the petitioner, Hillsboro National Bank, is an incorporated bank doing business in Illinois. Until 1970, Illinois imposed a property tax on shares held in incorporated banks. Ill.Rev.Stat., ch. 120, § 557 (1971). Banks, required to retain earnings sufficient to cover the taxes, § 558, customarily paid the taxes for the shareholders. Under § 164(e) of the Internal Revenue Code of 1954, 26 U.S.C. § 164(e), [ Footnote 1 ] the bank was allowed a deduction for the amount of the tax, but the shareholders were not. In 1970, Illinois amended its Constitution to prohibit ad valorem taxation
JUSTICE O’CONNOR delivered the opinion of the Court.*
This case presents the question of a State’s power to impose a special tax on the press and, by enacting exemptions, to limit its effect to only a few newspapers.
I
Since 1967, Minnesota has imposed a sales tax on most sales of goods for a price in excess of a nominal sum. [ Footnote 1 ] Act of June 1, 1967, ch. 32, Art. XIII, § 2, 1967 Minn. Laws 2143, 2179, codified at Minn.Stat. § 297A.02 (1982). In general, the tax applies only to retail sales. Ibid. An exemption for industrial and agricultural users shields from the tax sales of components to be used in the production of goods that will themselves be sold at retail. § 297A.25(1)(h). As part of this general system of taxation and in support of the sales tax, see Minn.Code of Agency Rules, Tax S & U 300 (1979), Minnesota also enacted a tax on the “privilege of using, storing or consuming in Minnesota tangible personal property.” This use tax applies to any nonexempt tangible personal property unless the sales tax was paid on the sales price. Minn.Stat. § 297A.14 (1982). Like the classic use tax, this use tax protects the State’s sales tax by eliminating the residents’ incentive to travel to States with lower sales taxes to buy goods, rather than buying them in Minnesota. §§ 297A.14, 297A.24.
The appellant, Minneapolis Star & Tribune Co., “Star Tribune,” is the publisher of a morning newspaper and an evening newspaper (until 1982) in Minneapolis. From 1967 until 1971,
JUSTICE O’CONNOR delivered the opinion of the Court.
The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price [ Footnote 1 ] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor’s records of direct costs, but not records of indirect costs.
I
In 1973, Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans’ Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising. [ Footnote 2 ] The pharmaceutical products supplied under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts.
As required by 10 U.S.C. § 2313(b) and 65 Stat. 700, 41 U.S.C. § 254(c), [ Footnote 3
JUSTICE O’CONNOR, dissenting.
Although I agree with the result reached in JUSTICE REHNQUIST’s dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e.g., 453 U. S. Fact Concerts, Inc., 453 U. S. 247, 453 U. S. 258 (1981); Carey v. Piphus, 435 U. S. 247, 435 U. S. 255 (1978). This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view, rather than the other, would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate
JUSTICE O’CONNOR, Circuit Justice.
Under Rule 44.4, the Justices of this Court will not entertain an application for a stay unless the applicant has first sought relief from the appropriate lower court or courts, except “in the most extraordinary circumstances.” I conclude that this case presents most extraordinary circumstances and will therefore entertain the application and grant a stay.
The applicant is a German corporation that is defending an action in the Michigan state courts. The plaintiffs in that action seek to depose a number of employees of the applicant, all of whom reside in the Federal Republic of Germany. Attempting to prevent the depositions in the trial court, the applicant argued that the method the plaintiffs sought to employ violated the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, [1972] 23 U. S. T. 2555, T. I. A. S. 7444, a treaty to which the United States and the Federal Republic of Germany are parties. See Department of State, Treaties in Force 249 (1983). The trial court denied the motion, and the Michigan Court of Appeals denied leave to appeal. The applicant then sought review in the Michigan Supreme Court. Meanwhile, the trial court ordered that the depositions take place on or before August 30, 1982, and the plaintiffs filed notice to take the depositions on August 24, 1982. The applicant then applied to the Michigan Supreme Court for an emergency stay of the order and for immediate consideration of the order.
JUSTICE O’CONNOR, concurring.
I concur in the opinion of the Court, accepting the view of the Commissioner. I do not, however, endorse the Commissioner’s view. Indeed, were we writing on a slate clean except for the decision in Crane v. Commissioner, 331 U. S. 1 (1947), I would take quite a different approach -that urged upon us by Professor Barnett as amicus.
Crane established that a taxpayer could treat property as entirely his own, in spite of the “coinvestment” provided by his mortgagee in the form of a nonrecourse loan. That is, the full basis of the property, with all its tax consequences, belongs to the mortgagor. That rule alone, though, does not in any way tie nonrecourse debt to the cost of property or to the proceeds upon disposition. I see no reason to treat the purchase, ownership, and eventual disposition of property differently because the taxpayer also takes out a mortgage, an independent transaction. In this case, the taxpayer purchased property, using nonrecourse financing, and sold it after it declined in value to a buyer who assumed the mortgage. There is no economic difference between the events in this case and a case in which the taxpayer buys property with cash; later obtains a nonrecourse loan by pledging the property as security; still later, using cash on hand, buys off the mortgage for the market value of the devalued property; and finally sells the property to a third party for its market value.
The logical way to treat both this case and the hypothesiz