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 JUSTICE BRENNAN and JUSTICE BLACKMUN join, concurring in the judgment.
I agree with the Court that the convictions obtained in the trial court against defendants Mechanik and Lill should not have been set aside. I write separately because I believe that the analysis adopted by the Court for determining the effect of a violation of the rules governing the conduct of grand juries effectively renders those rules a dead letter, thereby seriously undermining the grand jury’s traditional function of protecting the innocent from unwarranted public accusation.
The grand jury has two principal functions. First, it bears the weighty responsibility of investigating crime and determining whether there is probable cause to believe that a crime has been committed. United States v. Calandra, 414 U.S. 338, 414 U. S. 343 (1974). The second, and no less important, task of the grand jury is to
serv[e] the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or dictated by an intimidating power or by malice and personal ill will.
Wood v. Georgia, 370 U. S. 375, 370 U. S. 390 (1962). To further the grand jury’s investigative function, the grand jury traditionally has been given “wide latitude” in its inquiries. Calandra, supra, at 414 U. S. 343. See also United States v. Dionisio, 410 U. S. 1, 410 U. S. 17 -18 (1973).
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case, we must decide whether, in order to observe a Vehicle Identification Number (VIN) generally visible from outside an automobile, a police officer may reach into the passenger compartment of a vehicle to move papers obscuring the VIN after its driver has been stopped for a traffic violation and has exited the car. We hold that, in these circumstances, the police officer’s action does not violate the Fourth Amendment.
I
On the afternoon of May 11, 1981, New York City police officers Lawrence Meyer and William McNamee observed respondent Benigno Class driving above the speed limit in a car with a cracked windshield. Both driving with a cracked windshield and speeding are traffic violations under New York law. See N.Y.Veh. & Traf.Law §§ 375(22), 1180(d) (McKinney 1970). Respondent followed the officers’ ensuing directive to pull over. Respondent then emerged from his car and approached Officer Meyer. Officer McNamee went directly to respondent’s vehicle. Respondent provided Officer Meyer with a registration certificate and proof of insurance, but stated that he had no driver’s license.
Meanwhile, Officer McNamee opened the door of respondent’s car to look for the VIN, which is located on the left doorjamb in automobiles manufactured before 1969. When the officer did not find the VIN on the doorjamb, he reached into the interior of respondent’s car to move some papers obscuring the area of the dashboard where the
JUSTICE O’CONNOR, with whom JUSTICE POWELL joins, concurring.
Today the Court upholds the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) against a facial challenge to their validity based on the Taking Clause of the Fifth Amendment. I join the Court’s opinion and agree with its reasoning and its result, but I write separately to emphasize some of the issues the Court does not decide today. Specifically, the Court does not decide today, and has left open in previous cases, whether the imposition of withdrawal liability under the MPPAA and of plan termination liability under the Employee Retirement Income Security Act of 1974 (ERISA) may in some circumstances be so arbitrary and irrational as to violate the Due Process Clause of the Fifth Amendment. See Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 467 U. S. 728, n. 7 (1984); Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359, 446 U. S. 67 -368 (1980). The Court also has no occasion to decide whether the MPPAA may violate the Taking Clause as applied in particular cases, or whether the pension plan in this case is a defined benefit plan, rather than a defined contribution plan within the meaning of ERISA.
As the Court indicates, the mere fact that “legislation requires one person to use his or her assets for the benefit of another,” ante at 475 U. S. 223, will not establish either a violation of the Taking Clause or the Due Process
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to decide what standard governs a prison inmate’s claim that prison officials subjected him to cruel and unusual punishment by shooting him during the course of their attempt to quell a prison riot.
I
At the time he was injured, respondent Gerald Albers was confined in cellblock “A” of the Oregon State Penitentiary. Cellblock “A” consists of two tiers of barred cells housing some 200 inmates. The two tiers are connected by a stairway that offers the only practical way to move from one tier to another.
At about 8:30 on the evening of June 27, 1980, several inmates were found intoxicated at the prison annex. Prison guards attempted to move the intoxicated prisoners, some of whom resisted, to the penitentiary’s isolation and segregation facility. This incident could be seen from the cell windows in cellblock “A,” and some of the onlookers became agitated because they thought that the guards were using unnecessary force. Acting on instructions from their superiors, Officers Kemper and Fitts, who were on duty in cellblock “A,” ordered the prisoners to return to their cells. The order was not obeyed. Several inmates confronted the two officers, who were standing in the open area of the lower tier. One inmate, Richard Klenk, jumped from the second tier and assaulted Officer Kemper. Kemper escaped, but Officer Fitts was taken hostage. Klenk and other inmates then began breaking furniture and milling about.
Upon
JUSTICE O’CONNOR delivered the opinion of the Court.
After being informed of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (1966), and after executing a series of written waivers, respondent confessed to the murder of a young woman. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that respondent would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The question presented is whether either the conduct of the police or respondent’s ignorance of the attorney’s efforts to reach him taints the validity of the waivers and therefore requires exclusion of the confessions.
I
On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a factory parking lot in Providence, Rhode Island. Suffering from injuries to her skull apparently inflicted by a metal pipe found at the scene, she was rushed to a nearby hospital. Three weeks later, she died from her wounds.
Several months after her death, the Cranston, Rhode Island, police arrested respondent and two others in connection with a local burglary. Shortly before the arrest, Detective Ferranti of the Cranston police force had learned from a confidential informant that the man responsible for Ms.
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
For the reasons stated by JUSTICE WHITE, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the city of Cincinnati freely conceded, forcible entry of third-party property to effect an arrest was standard operating procedure in May, 1977. Given that this procedure was consistent with federal, state, and local law at the time the case arose, it seems fair to infer that respondent county’s policy was no different. Moreover, under state law as definitively construed by the Court of Appeals, the county officials who opted for the forcible entry “had the authority to approve or disapprove such entries.” Ante at 475 U. S. 485 (WHITE J., concurring). Given this combination of circumstances, I agree with JUSTICE WHITE that the decision to break down the door “sufficiently manifested county policy to warrant reversal of the judgment below.” Ibid. Because, however, I believe that the reasoning of the majority goes beyond that necessary to decide the case, and because I fear that the standard the majority articulates may be misread to expose municipalities to liability beyond that envisioned by the Court in Monell, I join only Parts 475 U. S. S. 477|>II-A of the Court’s opinion and the judgment.
JUSTICE O’CONNOR, with whom JUSTICE MARSHALL joins, dissenting.
The issue posed in this case is whether, consistent with the Free Exercise Clause of the First Amendment, the Air Force may prohibit Captain Goldman, an Orthodox Jewish psychologist, from wearing a yarmulke while he is in uniform on duty inside a military hospital.
The Court rejects Captain Goldman’s claim without even the slightest attempt to weigh his asserted right to the free exercise of his religion against the interest of the Air Force in uniformity of dress within the military hospital. No test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity.
JUSTICE STEVENS acknowledges that
Captain Goldman’s military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force’s military mission.
Ante at 475 U. S. 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a governmental regulation based on any “neutral, completely objective standard,” ante at 475 U. S. 513, will survive a free exercise challenge.
In contrast, JUSTICE BRENNAN recognizes that the Court “overlooks the sincere and serious nature of [the] constitutional claim.” Ante at 475 U. S. 514 (dissenting). He properly notes that, even with respect to military rules and regulations, the courts have a duty to weigh sincere First
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us once more to
struggl[e]… to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.
Gertz v. Robert Welch, Inc., 418 U. S. 323, 418 U. S. 325 (1974). In Gertz, the Court held that a private figure who brings a suit for defamation cannot recover without some showing that the media defendant was at fault in publishing the statements at issue. Id. at 418 U. S. 347. Here, we hold that, at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.
I
Maurice S. Hepps is the principal stockholder of General Programming, Inc. (GPI), a corporation that franchises a chain of stores -known at the relevant time as “Thrifty” stores -selling beer, soft drinks, and snacks. Mr. Hepps, GPI, and a number of its franchisees are the appellees here. [ Footnote 1 ] Appellant Philadelphia Newspapers, Inc., owns the Philadelphia Inquirer (Inquirer). The Inquirer published a series of articles, authored by appellants William Ecenbarger and William Lambert, containing the statements at issue here. The general theme of the five articles, which appeared in the Inquirer between May, 1975, and May, 1976, was that appellees had links to organized crime and used some of those links to influence the State’s governmental processes, both legislative
JUSTICE O’CONNOR, concurring.
I concur in the Court’s opinion and judgment, but also agree with the views of THE CHIEF JUSTICE and JUSTICE WHITE that today’s decision does not apply retroactively.
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.
I join the Court’s judgment and Part I of its opinion, and I agree with much of the Court’s discussion of.why Dr. Diamond’s asserted interests in defending the Illinois Abortion Law do not satisfy the Art. III standing requirement. I write separately, however, because I do not agree with the Court’s reasons for rejecting Dr. Diamond’s contention that Illinois’ presence as an appellee ensures that a justiciable controversy is before us. In my view, Dr. Diamond was not a proper intervenor in the Court of Appeals, and therefore Illinois is not before this Court in any capacity, because Diamond was not authorized to bring this appeal under 28 U.S.C. § 1254(2).
The Court assumes that Diamond could properly bring an appeal under § 1254(2), and therefore that Illinois is present in this Court as an appellee under this Court’s Rule 10.4. The Court then asserts that Illinois is not “the functional equivalent of an appellant” by virtue of its status as a party under Rule 10.4. Ante at 476 U. S. 62 -63. On this basis, the Court concludes that Illinois’ “failure to invoke our jurisdiction leaves the Court without a case’ or `controversy’ between appellees and the State of Illinois,” ante at 476 U. S. 63 -64, even if Illinois’ interests are actually adverse to appellees’ interests. I believe this analysis is needlessly inconsistent with this Court’s opinion in Director,
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
This case requires us to define and apply the standard required by the Equal Protection Clause when a governmental agency agrees to give preferences on the basis of race or national origin in making layoffs of employees. The specific question posed is, as JUSTICE MARSHALL puts it,
whether the Constitution prohibits a union and a local school board from developing a collective bargaining agreement that apportions layoffs between two racially determined groups as a means of preserving the effects of an affirmative hiring policy.
Post at 476 U. S. 300 (dissenting). There is no issue here of the interpretation and application of Title VII of the Civil Rights Act of 1964; accordingly, we have only the constitutional issue to resolve.
The Equal Protection Clause standard applicable to racial classifications that work to the disadvantage of “nonminorities” has been articulated in various ways. See, e.g., post at 476 U. S. 301 -302 (MARSHALL, J., dissenting). JUSTICE POWELL now would require that: (1) the racial classification be justified by a ” compelling governmental interest,'” and (2) the means chosen by the State to effectuate its purpose be “narrowly tailored.” Ante at 476 U. S. 274. This standard reflects the belief, apparently held by all Members of this Court, that racial classifications of any sort must be subjected to “strict scrutiny,” however defined. See, e.g., Fullilove v. Klutznick, 448 U. S.
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to consider whether a standby letter of credit backed by a contingent promissory note is insured as a “deposit” under the federal deposit insurance program. We hold that, in light of the longstanding interpretation of petitioner Federal Deposit Insurance Corporation (FDIC) that such a letter does not create a deposit and, in light of the fact that such a letter does not entrust any noncontingent assets to the bank, a standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit.
I
Orion Manufacturing Corporation (Orion) was, at the time of the relevant transactions, a customer of respondent Philadelphia Gear Corporation (Philadelphia Gear). On Orion’s application, the Penn Square Bank, N.A. (Penn Square) issued a letter of credit for the benefit of Philadelphia Gear in the amount of $145,200. The letter of credit provided that a draft drawn upon the letter of credit would be honored by Penn Square only if accompanied by Philadelphia Gear’s “signed statement that [it had] invoiced Orion Manufacturing Corporation and that said invoices have remained unpaid for at least fifteen (15) days.” App. 25. Because the letter of credit was intended to provide payment to the seller only if the buyer of the invoiced goods failed to make payment, the letter of credit was what is commonly referred to as a “standby” or “guaranty” letter of credit. See, e.g., 12 CFR § 337.2(a),
JUSTICE O’CONNOR delivered the opinion of the Court.
Prior to his trial for murder, petitioner moved to suppress his confession. The trial judge conducted a hearing, determined that the confession was voluntary, and denied the motion. At trial, petitioner sought to introduce testimony about the physical and psychological environment in which the confession was obtained. His objective in so doing was to suggest that the statement was unworthy of belief. The trial court ruled that the testimony pertained solely to the issue of voluntariness, and was therefore inadmissible. The question presented is whether this ruling deprived petitioner of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution.
I
On August 7, 1981, a clerk at the Keg Liquor Store in Louisville, Kentucky, was shot to death, apparently during the course of a robbery. A complete absence of identifying physical evidence hampered the initial investigation of the crime. A week later, however, the police arrested petitioner, then 16 years old, for his suspected participation in an unrelated service station holdup. According to police testimony at the suppression hearing, “just out of the clear blue sky,” petitioner began to confess to a host of local crimes, including shooting a police officer, robbing a hardware store, and robbing several individuals at a bowling alley. App. 4. Their curiosity understandably aroused, the police transferred petitioner to a juvenile detention center to continue
JUSTICE O’CONNOR, dissenting.
I fully agree with JUSTICE WHITE’s conclusion that the only question properly before us is whether the Court of Appeals correctly concluded that the Secretary has no power under 29 U.S.C. § 794 to regulate medical treatment decisions concerning handicapped newborn infants. I also agree that application of established principles of statutory construction and of the appropriate standard for judicial review of agency action leads inescapably to the conclusion that the Secretary has the authority to regulate in this area. Because, however, I see no need at this juncture to address the details of the regulations or to assess whether they are sufficiently rational to survive review under 5 U.S.C. § 706 (2)(A), I join only parts 476 U. S. 476 U. S. 476 U. S. and 476 U. S.
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part.
I join Parts I and II of THE CHIEF JUSTICE’s opinion, and I would vacate only a portion of the injunction issued by the District Court.
I
I believe that appellees cannot pursue their free exercise claim based solely on the actions of the Government with respect to the use of a Social Security number already in its possession, or with respect to any other identification number the Government may wish to assign and use in connection with its administration of its welfare assistance program. Accordingly, I join Parts 476 U. S. S. 699|>II of THE CHIEF JUSTICE’s opinion, and I would vacate that portion of the District Court’s judgment that enjoins the Government from using or disseminating the Social Security number already assigned to Little Bird of the Snow.
In all, eight Members of the Court believe that the District Court’s injunction was overbroad in preventing the Government from using information already in its possession. See ante at 476 U. S. 699 -701 (opinion of BURGER, C.J., joined by POWELL and REHNQUIST, JJ.); ante at 476 U. S. 716 -717 (STEVENS, J., concurring in part and concurring in the result); ante at 476 U. S. 713 (BLACKMUN, J., concurring in part); supra, this page.
A logical next step on the facts of this case is to consider whether the case is moot. Only two Members of the Court believe that the case is, or may be, moot. See ante at 476 U. S.
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, dissenting.
This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 452 (1983) (O’CONNOR, J., dissenting). Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but -except when it comes to abortion -the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. See Heckler v. Chaney, 470 U. S. 821, 470 U. S. 838 (1985); id. at 470 U. S. 839 -840, n. 2 (BRENNAN, J., concurring) (differences over the validity of the death penalty under the Eighth Amendment should not influence the Court’s consideration of a question of statutory administrative law). That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade, 410 U. S. 113 (1973).
The
JUSTICE O’CONNOR delivered the opinion of the Court.
Petitioner, Three Affiliated Tribes of the Fort Berthold Reservation, sought to sue respondent, Wold Engineering, P.C. (hereafter respondent), in state court for negligence and breach of contract. The North Dakota Supreme Court held that Chapter 27-19 of the North Dakota Century Code (1974) disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court. It ruled that, under Chapter 27-19, petitioner could not avail itself of state court jurisdiction unless it consented to waive its sovereign immunity and to have any civil disputes in state court to which it is a party adjudicated under state law. 364 N.W.2d 98 (1985). The question presented is whether Chapter 27-19, as construed by the North Dakota Supreme Court, is repugnant to the Federal Constitution or is preempted by federal Indian law.
I
This is the second time this Court has been called upon to address this jurisdictional controversy. See Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 (1984) ( Three Tribes I ). Because the facts and procedural history of the litigation were set forth in some detail in Three Tribes I, our present recitation will be brief.
Historically, Indian territories were generally deemed beyond the legislative and judicial jurisdiction of the state governments. See id. at 467 U. S. 142. This restriction was reflected in the federal statute which admitted
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari in this case to determine whether the Court of Appeals for the District of Columbia Circuit correctly concluded that the Food and Drug Administration’s longstanding interpretation of 21 U.S.C. § 346 was in conflict with the plain language of that provision. 474 U.S. 1018 (1985). We hold that, in light of the inherent ambiguity of the statutory provision and the reasonableness of the Food and Drug Administration’s interpretation thereof, the Court of Appeals erred. We therefore reverse.
I
A
The Food and Drug Administration (FDA) enforces the Federal Food, Drug, and Cosmetic Act (Act) as the designee of the Secretary of Health and Human Services. 21 U.S.C. § 371(a). See also 21 CFR § 5.10 (1986). The Act seeks to ensure the purity of the Nation’s food supply, and accordingly bans “adulterated” food from interstate commerce. 21 U.S.C. § 331(a). Title 21 U.S.C. § 342(a) deems food to be “adulterated”
(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2)(A) if it bears or contains any added poisonous or added deleterious substance (other than [exceptions not relevant here]) which is unsafe within the meaning of section 346a(a) of this
JUSTICE O’CONNOR delivered the opinion of the Court.
The Nantahala Power & Light Company (Nantahala) and Tapoco, Inc. (Tapoco), are both wholly owned subsidiaries of the Aluminum Company of America (Alcoa). Tapoco and Nantahala each own hydroelectric powerplants on the Little Tennessee River. Almost all of the power that they produce goes to the Tennessee Valley Authority (TVA). In exchange for allowing TVA to pour into its grid the variable quantity of power produced by Tapoco’s and Nantahala’s facilities, Tapoco and Nantahala jointly receive a fixed supply of low-cost “entitlement power” from TVA. In addition, Nantahala buys a variable amount of high-cost “purchased power” from the TVA grid. Tapoco sells all its power to Alcoa; Nantahala serves public customers.
For the purposes of calculating the rate to be charged Nantahala’s retail customers, all of whom are in North Carolina, the Utilities Commission of North Carolina (NCUC) chose an allocation of entitlement and purchased power between Tapoco and Nantahala that differs from the allocation of entitlement power between Tapoco and Nantahala adopted by the Federal Energy Regulatory Commission (FERC) in a wholesale ratemaking proceeding. The North Carolina Supreme Court upheld NCUC’s allocation. We noted probable jurisdiction to decide whether NCUC’s allocation may stand in light of FERC’s ruling. 474 U.S. 1018 (1985). We hold that NCUC’s allocation of entitlement and purchased power is preempted by federal law.
I
A
This
JUSTICE O’CONNOR delivered the opinion of the Court.
Federal law vests in the Secretary of Agriculture the authority to make emergency loans to farmers who suffer economic losses as a result of a natural disaster. See Consolidated Farm and Rural Development Act (Act), §§ 321-330, 75 Stat. 311, as amended, 7 U.S.C. §§ 1961-1971. Pursuant to an agency rule, the Secretary required loan applicants suffering from disasters occurring between December 26, 1972, and April 20, 1973, to file their applications by April 2, 1974. 39 Fed.Reg. 7569 (1974) (later codified at 7 CFR § 1832.82(a) (1975)). That rule embodied a statutory command to keep the loan program open at least until that date. Pub.L. 93-237, 87 Stat. 1025. The question presented is whether a federal court has the remedial authority to reopen this long-terminated loan program on the basis of its finding that the Secretary, in alleged violation of another rule, failed adequately to notify affected farmers of the program’s availability and terms.
I
In early April, 1973, torrential rains struck 13 counties in the northern part of Florida. Initial estimates, which were later sharply reduced, projected that resulting crop and property losses would be in excess of $3 million. In light of the scope of these anticipated losses, on May 26, 1973, President Nixon declared the region a major disaster area. 38 Fed.Reg. 14800 (1973). See Disaster Relief Act of 1970, Pub.L. 91-606, 84 Stat. 1744 (repealed or transferred 1974). As a result
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, dissenting.
The Court today holds unconstitutional the preference in public employment opportunities New York offers to resident wartime veterans who resided in New York when they entered military service. Because I believe that New York’s veterans’ preference scheme is not constitutionally offensive under the Equal Protection Clause, does not penalize some free-floating “right to migrate,” and does not violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, I dissent.
I
The plurality’s constitutional analysis runs generally as follows: because the classification imposed by New York’s limited, one-time veterans’ civil service preference “penalizes” appellees’ constitutional “right to migrate,” the preference program must be subjected to heightened scrutiny, which it does not survive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength of this reasoning, the plurality concludes that the preference program violates both appellees’ constitutional “right to migrate” and their right to equal protection of the law, see ante at 476 U. S. 911, although it does not make clear how much of its analysis is necessary or sufficient to find a violation of the “right to migrate” independently of an Equal Protection Clause violation.
In pursuing this new dual analysis, the plurality simply rejects the equal protection approach the Court has previously
JUSTICE O’CONNOR delivered the opinion of the Court.
Respondents’ husbands were killed when petitioner Air Logistic’s helicopter, in which the decedents were traveling, crashed into the high seas. The issue presented is whether the Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U.S.C. § 761 et seq., provides the exclusive remedy by which respondents may recover against petitioner for the wrongful death of their husbands, or whether they may also recover the measure of damages provided by the Louisiana wrongful death statute, La.Civ.Code Ann., Art. 2315 (West Supp.1986), applying either of its own force or as surrogate federal law under the Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, as amended, 43 U.S.C. § 1331 et seq.
I
The husbands of respondents Corrine Taylor and Beth Tallentire worked on drilling platforms in the Gulf of Mexico, off the coast of Louisiana. On August 6, 1980, respondents’ husbands were killed while being transported in a helicopter owned and operated by petitioner Air Logistics (hereafter petitioner), a Division of Offshore Logistics, Inc., from a drilling platform to Houma, Louisiana. The crash occurred approximately 35 miles off the coast of Louisiana, well over the 3-mile limit that separates Louisiana’s territorial waters from the high seas for purposes of DOHSA.
Respondents each filed wrongful death suits in United States District Court, raising claims under DOHSA, OCSLA, and the law of Louisiana. These actions were later consolidated
JUSTICE O’CONNOR, with whom JUSTICE WHITE joins, concurring in the result in part and dissenting in part.
I am in full agreement with JUSTICE REHNQUIST’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.
As we explained in Hewitt v. Helms, 459 U. S. 460, 459 U. S. 466, (1983),
[l]iberty interests protected by the Fourteenth Amendment may arise from two sources -the Due Process Clause itself and the laws of the States.
See also Meachum v. Fano, 427 U. S. 215, 427 U. S. 223 -227 (1976). With JUSTICE REHNQUIST, I agree that the Due Process Clause does not independently create a protected interest in avoiding the execution of a death sentence during incompetency. See also Solesbee v. Balkcom, 339 U. S. 9 (1960).
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to decide whether and, if so, under what circumstances, a prosecutor may elicit testimony from a mental health professional concerning the content of an interview conducted to explore the possibility of presenting psychiatric defenses at trial. We also agreed to review the Court of Appeals’ determination that any error in the admission of the psychiatrist’s evidence in this case was irrelevant under the holding of Zant v. Stephens, 462 U. S. 862 (1983). On examination, however, we conclude that petitioner defaulted his underlying constitutional claim by failing to press it before the Supreme Court of Virginia on direct appeal. Accordingly, we decline to address the merits of petitioner’s claims, and affirm the judgment dismissing the petition for a writ of habeas corpus.
I
Following a jury trial, petitioner was convicted of the May, 1977, murder of Audrey Weiler. According to his confession, petitioner encountered Ms. Weiler in a secluded area near his home and raped her at knifepoint. Fearing that her testimony could send him back to prison, he then grabbed her by the neck and choked her until she fell unconscious. When he realized that she was still alive, he dragged her into a nearby river, submerged her head, and repeatedly stabbed her with his knife. A subsequent medical examination indicated that the death was attributable to three clusters of lethal injuries: asphyxia from strangulation, drowning,
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari in this case to consider whether a federal habeas petitioner can show cause for a procedural default by establishing that competent defense counsel inadvertently failed to raise the substantive claim of error, rather than deliberately withholding it for tactical reasons.
I
Respondent Clifford Carrier was convicted of rape and abduction by a Virginia jury in 1977. Before trial, respondent’s court-appointed counsel moved for discovery of the victim’s statements to police describing “her assailants, the vehicle the assailants were driving, and the location of where the alleged rape took place.” 2 Record 11. The presiding judge denied the motion by letter to counsel after examining the statements in camera and determining that they contained no exculpatory evidence. Id. at 31. Respondent’s counsel made a second motion to discover the victim’s statements immediately prior to trial, which the trial judge denied for the same reason after conducting his own in camera examination. Tr. 151-152.
After respondent was convicted, his counsel filed a notice of appeal to the Virginia Supreme Court assigning seven errors, of which the fifth was:
Did the trial judge err by not permitting defendant’s counsel to examine the written statements of the victim prior to trial, and during the course of the trial?
2 Record 83. Without consulting respondent, counsel subsequently submitted the required petition for appeal,