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 WHITE joins, concurring.
I agree with the Court that appellant’s rights under the Confrontation Clause were violated in this case. I write separately only to note my view that those rights are not absolute, but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.
Child abuse is a problem of disturbing proportions in today’s society. Just last Term, we recognized that
[c]hild abuse is one of the most difficult problems to detect and prosecute, in large part because there often are no witnesses except the victim.
Pennsylvania v. Ritchie, 480 U. S. 39, 480 U. S. 60 (1987). Once an instance of abuse is identified and prosecution undertaken, new difficulties arise. Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom, and have undertaken to shield the child through a variety of ameliorative measures. We deal today with the constitutional ramifications of only one such measure, but we do so against a broader backdrop. Iowa appears to be the only State authorizing the type of screen used in this case. See generally App. to Brief for American Bar Association as Amicus Curiae 1a-9a (collecting statutes). A full half of the States, however, have authorized the use of oneor twoway closed-circuit television. Statutes sanctioning
Justice O’CONNOR, delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, concluding that disparate impact analysis may be applied to a subjective or discretionary promotion system. Pp.487 U. S. 985-991,487 U. S. 999-1000.
(a) Each of this Court’s decisions applying disparate impact analysis -under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination -involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U. S. 424, and the Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria, see, e.g., McDonnell Douglas Corp. v. Green, 411 U. S. 792. Until today, the Court has never addressed the question whether disparate impact analysis may be applied to subjective employment criteria. Pp. 487 U. S. 985 -989.
(b) The reasons supporting the use of disparate impact analysis apply to subjective employment practices. That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective
JUSTICE O’CONNOR, concurring in the judgment.
The plurality and dissent agree on two fundamental propositions: that there is some age below which a juvenile’s crimes can never be constitutionally punished by death, and that our precedents require us to locate this age in light of the ” evolving standards of decency that mark the progress of a maturing society.'” See ante at 487 U. S. 821 (quoting Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958) (opinion of Warren, C.J.)); ante at 487 U. S. 827 -829; post at 487 U. S. 864 -865, 487 U. S. 872. See also e.g., McCleskey v. Kemp, 481 U. S. 279, 481 U. S. 300 (1987). I accept both principles. The disagreements between the plurality and the dissent rest on their different evaluations of the evidence available to us about the relevant social consensus. Although I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence than we now possess. Because I conclude that the sentence in this case can and should be set aside on narrower grounds than those adopted by the plurality, and because the grounds on which I rest should allow us to face the more general question when better evidence is available, I concur only in the judgment of the Court.
I
Both the plurality and the dissent look initially to the decisions of American legislatures for signs of a national
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion. I write separately to emphasize that nothing in the Court’s opinion forecloses the possibility that a mere technical violation of Anders v. California, 386 U. S. 738 (1967), might be excusable. The violation in this case was not a mere technical violation, however, and, on that understanding, I concur.
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
I agree that the Illinois Telecommunications Excise Tax Act does not violate the Commerce Clause, and join Parts I, II-A, II-D, and III of the Court’s opinion. I write separately to explain why I do not join Parts II-B and II-C. First, I am still unsure of the need and authority for applying the internal consistency test to state taxes challenged under the Commerce Clause. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 483 U. S. 303 (1987) (O’CONNOR, J., dissenting). I therefore do not join in the Court’s application of that test to the Tax Act. Ante at 488 U. S. 261. Second, I agree with JUSTICE STEVENS that a State may not discriminate among its own residents by placing a heavier tax on those who engage in interstate commerce than those who merely engage in local commerce. Ante at 488 U. S. 268 (STEVENS, J., concurring in part and concurring in judgment). Accordingly, I cannot join the Court’s statement that “[i]t is not a purpose of the Commerce Clause to protect state residents from their own state taxes.” Ante at 488 U. S. 266.
JUSTICE O’CONNOR, concurring in the judgment.
I concur in the judgment reversing the Supreme Court of Florida because I agree that police observation of the greenhouse in Riley’s curtilage from a helicopter passing at an altitude of 400 feet did not violate an expectation of privacy “that society is prepared to recognize as reasonable.'” Katz v. United States, 389 U. S. 347, 389 U. S. 361 (1967) (Harlan, J., concurring). I write separately, however, to clarify the standard I believe follows from California v. Ciraolo, 476 U. S. 207 (1986). In my view, the plurality’s approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.Const., Amdt. 4.
Ciraolo involved observation of curtilage by officers flying in an airplane at an altitude of 1,000 feet. In evaluating whether this observation constituted a search for which a warrant was required, we acknowledged the importance of curtilage in Fourth Amendment doctrine:
The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.
476 U.S. at 476 U. S. 212 -213. Although the curtilage is an area to which the private activities of the home
Justice O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, an opinion with respect to Part II, in which THE CHIEF JUSTICE and Justice WHITE join, and an opinion with respect to Parts III-A and V, in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.
In this case, we confront once again the tension between the Fourteenth Amendment’s guarantee of equal treatment to all citizens, and the use of race-based measures to ameliorate the effects of past discrimination on the opportunities enjoyed by members of minority groups in our society. In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), we held that a congressional program requiring that 10% of certain federal construction grants be awarded to minority contractors did not violate the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. Relying largely on our decision in Fullilove, some lower federal courts have applied a similar standard of review in assessing the constitutionality of state and local minority set-aside provisions under the Equal Protection Clause of the Fourteenth Amendment. See, e.g. South Florida Chapter, Associated General Contractors of America, Inc. v. Metropolitan Dade County, 723 F.2d 846 (CA11), cert. denied, 469 U.S. 871, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984); Ohio Contractors Assn. v. Keip, 713 F.2d 167 (CA6 1983). Since our decision two Terms ago in Wygant
JUSTICE O’CONNOR, Circuit Justice.
The State of California requests that, as Circuit Justice, I stay the enforcement of the judgment of the Supreme Court of California pursuant to 28 U. S. C. § 2101(f) pending the disposition of a petition for certiorari (No. 88-1054) to review that judgment. Because I think it unlikely that four Justices would vote to grant certiorari, see Hicks v. Feiock, 479 U. S. 1305, 1306 (1986) (O’CONNOR, J., in chambers), I deny the application for issuance of a stay.
In its petition for certiorari, California seeks review of the State Supreme Court’s judgment reversing the conviction of respondent Freeman for pandering under Cal. Penal Code Ann. §266i (West 1988). 46 Cal. 3d 419, 758 P. 2d 1128 (1988). Freeman is a producer and director of pornographic films who hired and paid adults to perform sexual acts before his film cameras. In 1983, Freeman was arrested and charged with five counts of pandering based on the hiring of five such performers. He was not charged with violation of any of California’s obscenity laws. Freeman was tried before a jury and convicted on all five counts of pandering; the State Court of Appeal affirmed the judgment of conviction. 198 Cal. App. 3d 292, 233 Cal. Rptr. 510 (1987).
On discretionary review, the California Supreme Court first considered the relevant statutory language of the State Penal Code. In relevant part, § 266i of the Penal Code provides that a person is guilty of felonious pandering if that person “procure[s]
JUSTICE O’CONNOR, concurring in part and dissenting in part.
Because I believe that this Court does not have jurisdiction to hear the petition in Sappenfield v. Indiana, No. 87-614, I dissent from the Court’s disposition of that case. I concur in the Court’s disposition of Fort Wayne Books, Inc. v. Indiana, No. 87-470, which presents, among others, the same question as presented in Sappenfield.
Petitioners Sappenfield and his bookstore corporations, Fantasy One, Inc., and Fantasy Two, Inc., have yet to be tried or convicted on the Racketeer Influenced and Corrupt Organizations (RICO) counts brought against them by the State of Indiana. Petitioners’ motion to dismiss the RICO counts and the State’s subsequent appeal were, therefore, interlocutory. Except in limited circumstances, this Court has jurisdiction only to review final judgments rendered by the highest court of the State in which decision may be had. 28 U.S.C. § 1257. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). As we observed in Flynt v. Ohio, 451 U. S. 619, 451 U. S. 620 (1981) (per curiam), a case involving violations of Ohio’s obscenity statute, “[a]pplied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence.” Neither a finding of guilt nor imposition of sentence has yet occurred in Sappenfield. As in Flynt, were we to assume jurisdiction over Sappenfield, there would be some
probability of piecemeal review with respect to federal issues [because]
JUSTICE O’CONNOR delivered the opinion of the Court.
We must decide today what limits the operation of the federal patent system places on the States’ ability to offer substantial protection to utilitarian and design ideas which the patent laws leave otherwise unprotected. In Interpart Corp. v. Italia, 777 F.2d 678 (1985), the Court of Appeals for the Federal Circuit concluded that a California law prohibiting the use of the “direct molding process” to duplicate unpatented articles posed no threat to the policies behind the federal patent laws. In this case, the Florida Supreme Court came to a contrary conclusion. It struck down a Florida statute which prohibits the use of the direct molding process to duplicate unpatented boat hulls, finding that the protection offered by the Florida law conflicted with the balance struck by Congress in the federal patent statute between the encouragement of invention and free competition in unpatented ideas. See 515 So.2d 220 (1987). We granted certiorari to resolve the conflict, 486 U.S. 1004 (1988), and we now affirm the judgment of the Florida Supreme Court.
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In September, 1976, petitioner Bonito Boats, Inc. (Bonito), a Florida corporation, developed a hull design for a fiberglass recreational boat which it marketed under the trade name Bonito Boat Model 5VBR. App. 5. Designing the boat hull required substantial effort on the part of Bonito. A set of engineering drawings was prepared, from which a hardwood model was created. The hardwood
JUSTICE O’CONNOR delivered the opinion of the Court.
We decide today whether United States Postal Service employees may, pursuant to 28 U.S.C. § 1442(a)(1), remove to Federal District Court state criminal prosecutions brought against them for traffic violations committed while on duty.
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In the summer of 1985, petitioners Kathryn Mesa and Shabbir Ebrahim were employed as mail truck drivers by the United States Postal Service in Santa Clara County, California. In unrelated incidents, the State of California issued criminal complaints against petitioners, charging Mesa with misdemeanor-manslaughter and driving outside a laned roadway after her mail truck collided with and killed a bicyclist, and charging Ebrahim with speeding and failure to yield after his mail truck collided with a police car. Mesa and Ebrahim were arraigned in the San Jose Municipal Court of Santa Clara County on September 16 and October 2, 1985, respectively. The Municipal Court set a pretrial conference in Mesa’s case for November 4, 1985, and set trial for Ebrahim on November 7, 1985.
On September 24 and October 4, 1985, the United States Attorney for the Northern District of California filed petitions in the United States District Court for the Northern District of California for removal to that court of the criminal complaints brought against Ebrahim and Mesa. The petitions alleged that the complaints should properly be removed to the Federal District Court pursuant to 28 U.S.C. § 1442(a)(1) because
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents two questions concerning the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. First, we address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA. Second, we determine which persons are “participants” entitled to obtain information about benefit plans covered by ERISA.
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Late in 1980, petitioner Firestone Tire and Rubber Company (Firestone) sold, as going concerns, the five plants composing its Plastics Division to Occidental Petroleum Company (Occidental). Most of the approximately 500 salaried employees at the five plants were rehired by Occidental and continued in their same positions without interruption and at the same rates of pay. At the time of the sale, Firestone maintained three pension and welfare benefit plans for its employees: a termination pay plan, a retirement plan, and a stock purchase plan. Firestone was the sole source of funding for the plans, and had not established separate trust funds out of which to pay the benefits from the plans. All three of the plans were either “employee welfare benefit plans” or “employee pension benefit plans” governed (albeit in different ways) by ERISA. By operation of law, Firestone itself was the administrator, 29 U.S.C. § 1002(16)(A)(ii), and fiduciary, § 1002(21)(A), of each of these “unfunded” plans. At the time of the sale
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
The Court’s decision is based on two distinct lines of argument. First, the Court concludes that the language of § 506(b) of the Bankruptcy Code, 11 U.S.C. § 506(b), is clear and unambiguous. Second, the Court takes a very narrow view of Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494 (1986), and its progeny. I disagree with both aspects of the Court’s opinion, and with the conclusion to which they lead.
The relevant portion of § 506(b) provides that
there shall be allowed to the holder of [an oversecured] claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.
The Court concludes that the only natural reading of § 506(b) is that recovery of post-petition interest is “unqualified.” Ante at 241. As Justice Frankfurter remarked some time ago, however, “[t]he notion that, because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” United States v. Monia, 317 U. S. 424, 317 U. S. 431 (1943) (dissenting opinion).
Although “the use of the comma is exceedingly arbitrary and indefinite,” United States v. Palmer, 3 Wheat. 610, 16 U. S. 638 (1818) (separate opinion of Johnson, J.), the Court is able to read § 506(b) the way that it does only because of the comma following the phrase “interest on such claim.” Without
JUSTICE O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
In Taylor v. Louisiana, 419 U. S. 522 (1975), this Court held that the Sixth Amendment required that the jury venire be drawn from a fair cross-section of the community. The Court stated, however, that,
in holding that petit juries must be drawn from a source fairly representative of the community, we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.
Id. at 419 U. S. 538. The principal question presented in this case is whether the Sixth Amendment’s fair cross-section requirement should now be extended to the petit jury. Because we adopt Justice Harlan’s approach to retroactivity for cases on collateral review, we leave the resolution of that question for another day.
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Petitioner, a black man, was convicted by an all-white Illinois jury of three counts of attempted murder, two counts of armed robbery, and one count of aggravated battery. During jury selection for petitioner’s trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner’s counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring.
I join the Court’s opinion, and am in general agreement with its decision to apply the “plain statement” rule of Michigan v. Long, 463 U. S. 1032 (1983), to the state courts’ invocation of state procedural default rules. I write separately to emphasize two points. First, I do not read the Court’s opinion as addressing or altering the well-settled rule that the lower federal courts, and this Court, may properly inquire into the availability of state remedies in determining whether claims presented in a petition for federal habeas corpus have been properly exhausted in the state courts. See Humphrey v. Cady, 405 U. S. 504, 405 U. S. 515 -517 (1972); Ex parte Hawk, 321 U. S. 114, 321 U. S. 118 (1944).
In 28 U.S.C. § 2254(b), Congress has provided that a writ of habeas corpus
shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
The exhaustion requirement is not satisfied if the habeas petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). Thus, in determining whether a remedy for a particular constitutional claim is “available,” the federal courts are authorized, indeed required,
JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE KENNEDY join, concurring in part and dissenting in part.
I join Parts I and II and all of Part III of the Court’s opinion except footnote 11, see ante at 489 U. S. 390, n. 11. I thus agree that, where municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city “policy” subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the Court observes,
[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality -a ‘policy’ as defined by our prior cases -can a city be liable for such a failure under [42 U.S.C.] § 1983.
Ante at 489 U. S. 389. I further agree that a § 1983 plaintiff pressing a “failure to train” claim must prove that the lack of training was the “cause” of the constitutional injury at issue, and that this entails more than simply showing “but for” causation. Ante at 489 U. S. 392. Lesser requirements of fault and causation in this context would “open municipalities to unprecedented liability under § 1983,” ante at 489 U. S. 391, and would pose serious federalism concerns. Ante at 489 U. S. 392.
My single point of disagreement with the majority is thus a small one. Because I believe, as the majority strongly
JUSTICE O’CONNOR delivered the opinion of the Court.
We decide today whether, at the end of a strike, an employer is required by the Railway Labor Act (RLA or Act), 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., to displace employees who worked during the strike in order to reinstate striking employees with greater seniority.
I
In March, 1984, Trans World Airlines, Inc. (TWA), and the Independent Federation of Flight Attendants (IFFA or Union) began negotiations pursuant to § 6 of the RLA, 45 U.S.C. § 156, on a new collective bargaining agreement to replace their prior agreement due to expire on July 31, 1984. The existing collective bargaining agreement created a complex system of bidding, the general effect of which was to insure that those flight attendants with the greatest seniority would have the best opportunity to obtain their preferred job assignments, flight schedules, and bases of operation as vacancies appeared, and to insure that senior flight attendants would be least affected by the periodic furloughs endemic to the airline industry. Thus, for example, should a job vacancy appear at the highly desirable Los Angeles or San Francisco bases of operation or “domiciles,” the most senior qualified flight attendant who bid on such a vacancy would be entitled to it. Conversely, should a reduction in force eliminate a position in the Los Angeles domicile, the furloughed flight attendant could opt to displace the most junior attendant of equal rank in the entire system
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the question whether Congress granted the Federal Savings and Loan Insurance Corporation (FSLIC), as receiver, the exclusive authority to adjudicate the state law claims asserted against a failed savings and loan association. We hold that Congress did not grant FSLIC such power, and that the creditors of a failed savings and loan association are entitled to de novo consideration of their claims in court. We also hold that creditors are not required to exhaust FSLIC’s current administrative claims procedure before filing suit, because the lack of a clear time limit on FSLIC’s consideration of claims renders the administrative procedure inadequate.
I
From 1983 to 1986, Coit Independence Joint Venture (Coit), a real estate concern, borrowed money from FirstSouth, F.A. a federal savings and loan association. Subsequent disagreements led Coit to file suit against FirstSouth in October, 1986, in the 95th Judicial District Court of Dallas County, Texas. In its state court complaint, Coit alleged that it had received two loans of $20 million and $30 million to purchase two parcels of undeveloped land. Coit alleged that FirstSouth had required it to pay a “profit participation” interest in any profits derived from sale of the property as a condition of receiving the loans. Coit asserted that this “profit participation” fee was interest that, when added to the regular accrued interest rate, made the loans usurious
JUSTICE O’CONNOR delivered the opinion of the Court.
We must decide today the proper standard for determining whether a party has “prevailed” in an action brought under certain civil rights statutes such that the party is eligible for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988. This is an issue which has divided the Courts of Appeals both before and after our decision in Hensley v. Eckerhart, 461 U. S. 424 (1983). The Courts of Appeals for the Fifth and Eleventh Circuits require that a party succeed on the “central issue” in the litigation and achieve the “primary relief sought” to be eligible for an award of attorney’s fees under § 1988. See, e.g., Simien v. San Antonio, 809 F.2d 255, 258 (CA5 1987); Martin v. Heckler, 773 F.2d 1145, 1149 (CA11 1985) (en banc). Most of the other Federal Courts of Appeals have applied a less demanding standard, requiring only that a party succeed on a significant issue and receive some of the relief sought in the lawsuit to qualify for a fee award. See, e.g., Gingras v. Lloyd, 740 F.2d 210, 212 (CA2 1984); Lampher v. Zagel, 755 F.2d 99, 102 (CA7 1985); Fast v. School Dist. of Ladue, 728 F.2d 1030, 1032-1033 (CA8 1984) (en banc); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (CA9 1983); Nephew v. Aurora, 766 F.2d 1464, 1466 (CA10 1985). In this case, the Court of Appeals for the Fifth Circuit applied the “central issue” test, and concluded that petitioners here were
JUSTICE O’CONNOR delivered the opinion of the Court.
We decide today whether § 7005 of the Consolidated Onmibus Budget Reconciliation Act of 1985, which directs the Secretary of Transportation to establish a system of user fees to cover the costs of administering certain federal pipeline safety programs, is an unconstitutional delegation of the taxing power by Congress to the Executive Branch. We hold that it is not.
I
In 1986, Congress enacted the Consolidated Onmibus Budget Reconciliation Act of 1985 (COBRA), Pub.L. 99-272, 100 Stat. 82. Section 7005 of COBRA, codified at 49 U.S.C. App. § 1682a (1982 ed., Supp. IV), and entitled “Pipeline safety user fees,” directs the Secretary of Transportation (Secretary) to
establish a schedule of fees based on the usage, in reasonable relationship to volume-miles, miles, revenues, or an appropriate combination thereof, of natural gas and hazardous liquid pipelines.
§ 7005(a)(1). These fees are to be collected annually, § 7005(b), from
persons operating -(A) all pipeline facilities subject to the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.App. 2001 et seq. ); and (B) all pipeline transmission facilities and all liquified natural gas facilities subject to the jurisdiction of the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C.App. 1671 et seq. ).
§ 7005(a)(3). The Hazardous Liquid Pipeline Safety Act (HLPSA) regulates interstate and intrastate pipelines carrying petroleum, petroleum products, or anhydrous ammonia.
JUSTICE O’CONNOR, concurring in the judgment.
I agree with the plurality that, on the facts presented in this case, the burden of persuasion should shift to the employer to demonstrate by a preponderance of the evidence that it would have reached the same decision concerning Ann Hopkins’ candidacy absent consideration of her gender. I further agree that this burden shift is properly part of the liability phase of the litigation. I thus concur in the judgment of the Court. My disagreement stems from the plurality’s conclusions concerning the substantive requirement of causation under the statute and its broad statements regarding the applicability of the allocation of the burden of proof applied in this case. The evidentiary rule the Court adopts today should be viewed as a supplement to the careful framework established by our unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), for use in cases such as this one where the employer has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion. I write separately to explain why I believe such a departure from the McDonnell Douglas standard is justified in the circumstances presented by this and like cases, and to express my views as to when and how the strong medicine of requiring the employer to bear the burden of persuasion on the issue of causation should be administered.
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JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, dissenting.
Today the Court holds that the federal Uniformed Services Former Spouses’ Protection Act (Former Spouses’ Protection Act or Act) denies state courts the power to order in a divorce decree the division of military retirement pay unilaterally waived by a retiree in order to receive veterans’ disability benefits. The harsh reality of this holding is that former spouses like Gaye Mansell can, without their consent, be denied a fair share of their ex-spouse’s military retirement pay simply because he elects to increase his after-tax income by converting a portion of that pay into disability benefits. On the Court’s reading of the Former Spouses’ Protection Act, Gaye Mansell will lose nearly 30 percent of the monthly retirement income she would otherwise have received as community property. I view the Court’s holding as inconsistent with both the language and the purposes of the Act, and I respectfully dissent.
The Court recognized in McCarty v. McCarty, 453 U. S. 210, 453 U. S. 235 (1981), that “the plight of an ex-spouse of a retired service member is often a serious one.” In holding that federal law precluded state courts from dividing nondisability military retired pay pursuant to state community property laws, McCarty concluded with an invitation to Congress to reexamine the issue. Congress promptly did so, and enacted the Former Spouses’ Protection Act. Today, despite overwhelming evidence that Congress intended
JUSTICE O’CONNOR, with whom JUSTICE SCALIA joins, dissenting.
The Court today acquiesces in the decision of the Internal Revenue Service (IRS) to manufacture a singular exception to its 70-year practice of allowing fixed payments indistinguishable from those made by petitioners to be deducted as charitable contributions. Because the IRS cannot constitutionally be allowed to select which religions will receive the benefit of its past rulings, I respectfully dissent.
The cases before the Court have an air of artificiality about them that is due to the IRS’ dual litigation strategy against the Church of Scientology (Church). As the Court notes, ante at 490 U. S. 686 -687, n. 4, the IRS has successfully argued that the mother Church of Scientology was not a tax-exempt organization from 1970 to 1972 because it had diverted profits to the founder of Scientology and others, conspired to impede collection of its taxes, and conducted almost all of its activities for a commercial purpose. See Church of Scientology of California v. Commissioner, 83 T.C. 381 (1984), aff’d, 823 F.2d 1310 (CA9 1987), cert. denied, 486 U. S. 1015 (1988). In the cases before the Court today, however, the IRS decided to contest the payments made to Scientology under 26 U.S.C. § 170 rather than challenge the tax-exempt status of the various branches of the Church to which the payments were made. According to the Deputy Solicitor General, the IRS challenged the payments themselves in order to expedite matters.
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, dissenting.
In Booth v. Maryland, 482 U. S. 496 (1987), this Court held that the Eighth Amendment prohibited a jury from considering a victim impact statement during the sentencing phase of a capital trial. The document at issue in Booth was compiled by the Maryland Division of Parole and Probation on the basis of extensive interviews with the two murder victims’ son, daughter, son-in-law, and granddaughter. In addition to evidence relating to the personal qualities of the victims themselves, the statement in Booth described the emotional impact of the crime on the victims’ family members, including their resulting sleeplessness, fear, depression, and constant painful memories. The statement also described the family members’ opinions about the crime, the defendant, and the proper penalty to be imposed. Id. at 482 U. S. 509 -515. The majority in Booth took the view that such information “may be wholly unrelated to the blameworthiness of a particular defendant,” id. at 482 U. S. 504, and could divert the capital sentencer’s attention from the circumstances of the crime and the defendant’s background and record, id. at 482 U. S. 505. The majority noted that introduction of evidence of a victim’s good character would entitle the defendant to rebut this evidence, resulting in “a mini-trial’ on the victim’s character.” Id. at 482 U. S. 507. The Court also expressed concern that the opinions of family members
JUSTICE O’CONNOR delivered the opinion of the Court.
The issue before us in this case is whether a Social Security claimant is entitled to an award of attorney’s fees under the Equal Access to Justice Act for representation provided during administrative proceedings held pursuant to a district court order remanding the action to the Secretary of Health and Human Services.
I
Respondent Elmer Hudson filed an application for the establishment of a period of disability and for disability benefits under the Social Security Act, 49 Stat. 620, as amended, 42 U.S.C. § 401 et seq. (1982 ed. and Supp. V) on September 9, 1981. On the same day, she filed an application for supplemental security income under Title XVI of the Act. Respondent, now 50, submitted medical evidence indicating obesity, limitations in movement, and lower back pain. Her application for benefits was administratively denied, and that position was upheld on reconsideration by the Social Security Administration. Respondent requested and received a hearing before an Administrative Law Judge (ALJ), where she was represented by a Legal Services Corporation paralegal. At the hearing, respondent testified that she suffered from back pain, depression, and nervousness. Respondent was in a state of anxiety and cried throughout the hearing. The ALJ ordered a posthearing psychiatric examination by Dr. Anderson, a psychiatrist, and respondent’s representative chose to have her undergo an additional evaluation by Dr. Myers, a