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 delivered the opinion of the Court. The Sentencing Reform Act of 1984 (Act), as amended, 18 U. S. C. § 3551et seq., Act permits a district court to depart from the presumptive sentencing range prescribed by the Sentencing Guidelines only in certain circumstances. 18 U. S. C. § 3553(b). The Act also provides for limited appellate review of sentences in order to ensure the proper application of the Guidelines. § 3742. In this case, we consider the scope of appellate review, under the Act, of a sentence in which a district court has departed from the guideline sentencing range.28 U. S. C. §§ 991-998, created the United States Sentencing Commission and empowered it to promulgate guidelines establishing sentencing ranges for different categories of federal offenses and defendants. The
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Petitioner Joseph Williams, a previously convicted felon, was the subject of an investigation conducted by the Bureau of Alcohol, Tobacco and Firearms in 1988 and 1989. He was indicted and convicted after a jury trial in the United States District Court for the Western District of Wisconsin for possession of a firearm while a convicted felon in violation of 18 U. S. C. § 922(g)(1).
The presentence report assigned Williams a criminal history category of V. App. 48. Combined with an offense level of 9, the applicable sentencing range under the Guidelines was 18 to 24 months. Ibid. The District Court departed upward from this range pursuant to § 4A1.3 of the Guidelines Manual, which
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE BLACKMUN join, concurring in the judgment.
I agree that when Congress enacted 28 U. s. C. § 158(d) as part of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress probably did not intend to deprive the courts of appeals of their longstanding jurisdiction over interlocutory appeals in bankruptcy cases. But I think we should admit that this construction of the statutes does render § 158(d) largely superfluous, and that we do strive to interpret statutes so as to avoid redundancy. Cf. ante, at 253254. In this case, I think it far more likely that Congress inadvertently created a redundancy than that Congress intended to withdraw appellate jurisdiction over interlocutory bankruptcy appeals by the roundabout method of reconferring jurisdiction over appeals from final bankruptcy orders. I would reverse the judgment below only for this reason.
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE STEVENS join, concurring in part and concurring in the judgment.
I agree with the Court that the civil action provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968 (1988 ed. and Supp. II), have a proximate cause element, and I can even be persuaded that the proximate cause issue is “fairly included” in the question on which we granted certiorari. Ante, at 266, n. 12. In my view, however, before deciding whether the Securities Investor Protection Corporation (SIP C) was proximately injured by petitioner’s alleged activities, we should first consider the standing question that was decided below, and briefed and argued here, and which was the only clearly articulated question on which we granted certiorari. In resolving that question, I would hold that a plaintiff need not be a purchaser or a seller to assert RICO claims predicated on violations of fraud in the sale of securities.
Section 10(b) of the Securities Exchange Act of 1934 (1934 Act) makes it unlawful for any person to use, “in connection with the purchase or sale of any security,” any “manipulative or deceptive device or contrivance” in contravention of rules or regulations that the Securities and Exchange Commission (SEC) may prescribe. 15 U. S. C. § 78j(b). Pursuant to its authority under § 10(b), the SEC has adopted Rule 10b-5, which prohibits manipulative or deceptive acts “in connection
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, dissenting.
By failing to interpret 18 U. S. C. § 5037(c)(1)(B) in light of the statutory scheme of which it is a part, the Court interprets a “technical amendment” to make sweeping changes to the process and focus of juvenile sentencing. Instead, the Court should honor Congress’ clear intention to leave settled practice in juvenile sentencing undisturbed.
When Congress enacted the Sentencing Reform Act of 1984, it authorized the United States Sentencing Commission (Sentencing Commission or Commission) to overhaul the discretionary system of adult sentencing. As an important aspect of this overhaul, Guidelines sentencing formalizes sentencing procedures. The Commission explains:”In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation will no longer exist under sentencing guidelines. The court’s resolution of disputed sentencing factors will usually have a measurable effect on the applicable punishment. More formal ity is therefore unavoidable if the sentencing process is to be accurate and fair.” United States Sentencing Commission, Guidelines Manual § 6A1.3, comment (Nov. 1991) (USSG).
Another significant change permits an appeal when the Guidelines are incorrectly applied or departed from,
JUSTICE O’CONNOR delivered the opinion of the Court. The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Most of our cases interpreting the Clause fall within two distinct classes. Where the government authorizes a physical occupation of property (or actually takes title), the Takings Clause generally requires compensation. See,e. g., Lorettov.Teleprompter Manhattan CATV Corp.,458 U. S. 419, 426 (1982). But where the government merely regulates the use of property, compensation
J. Popeo, Paul D. Kamenar, and Jonathan K. Van Patten; and for the Western Mobilehome Association by Michael A. Willemsen and David Spangenberg.
Briefs of amici curiae urging affirmance were filed for the city of San Jose et al. by Joan R. Gallo, George Rios, Manuela Albuquerque, Stanley C. Hatch, Glenn R. Watson, William Camil, Lynn R. McDougal, Scott H. Howard, David J. Erwin, Robert L. Kress, Charles J. Williams, David H. Hirsch, Steven F. Nord, Marc G. Hynes, John L. Cook, Daniel S. Hentschke, Gary L. Gillig, Jean Leonard Harris, David E. Schricker, Michael F. Dean, James Penman, Peter D. Bulens, John W Witt, Louise H. Renne, James P. Botz, Mark G. Sellers, Robert B. Ewing, Angil P. Morris, James G. Rourke, and Thomas Haas; for the American Association of Retired Persons by Steven S. Zalesnick and Joan Wise; for the city of Santa Monica et al. by Robert M. Myers, Joseph Lawrence, Martin Tachiki, Barry Rosenbaum, David
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, and with whom JUSTICE SCALIA joins except as to Part II, dissenting.
Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree. Cf. United States v. Hunt, 749 F.2d 1078, 1085 (CA4 1984) (ready response to solicitation shows predisposition), cert. denied, 472 U. S. 1018 (1985); United States v. Kaminski, 703 F.2d 1004, 1008 (CA7 1983) (” ‘the most important factor… is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement”’) (quoting United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (CA9 1977), cert. denied, 436 U. S. 926 (1978)); United States v. Sherman, 200 F.2d 880, 882 (CA2 1952) (indication of pre disposition is a defendant’s willingness to commit the offense “‘as evinced by ready complaisance'” (citation omitted)).
The first time the Government
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN, JUSTICE STEVENS, and JUSTICE KENNEDY join, dissenting.
Under the guise of overruling “a remnant of a decision,” ante, at 8, and achieving “uniformity in the law,” ante, at 10, the Court has changed the law of habeas corpus in a fundamental way by effectively overruling cases decided long before Townsend v. Sain, 372 U. S. 293 (1963). I do not think this change is supported by the line of our recent procedural default cases upon which the Court relies: In my view, the balance of state and federal interests regarding whether a federal court will consider a claim raised on habeas cannot be simply lifted and transposed to the different question whether, once the court will consider the claim, it should hold an evidentiary hearing. Moreover, I do not think the Court’s decision can be reconciled with 28 U. S. C. § 2254(d), a statute Congress enacted three years after Townsend.
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Jose Tamayo-Reyes’ habeas petition stated that because he does not speak English he pleaded nolo contendere to manslaughter without any understanding of what “manslaughter” means. App. 58. If this assertion is true, his conviction was unconstitutionally obtained, see Henderson v. Morgan, 426 U. S. 637, 644-647 (1976), and Tamayo-Reyes would be entitled to a writ of habeas corpus. Despite the Court’s attempt to characterize his allegation as a technical quibble-“his translator had not translated accurately and completely for him the mens rea element of manslaughter,”
JUSTICE O’CONNOR delivered the opinion of the Court. The federalin forma pauperisstatute, codified at 28 U. S. C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” § 1915(d). InNeitzkev.Williams,490 U. S. 319(1989), we considered the standard to be applied when determining whether the legal basis of anin forma pauperiscomplaint is frivolous under § 1915(d). The issues in this case are the appropriate inquiry for determining when anin forma pauperislitigant’s factual allegations justify a § 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.
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Petitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison
*Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.
Elizabeth
JUSTICE O’CONNOR delivered the opinion of the Court.
In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), we left open the question whether private defendants charged with 42 U. S. C. § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional are entitled to qualified immunity from suit. 457 U. S., at 942, n. 23. We now hold that they are not.
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This dispute arises out of a soured cattle partnership. In July 1986, respondent Bill Cole sought to dissolve his partnership with petitioner Howard Wyatt. When no agreement could be reached, Cole, with the assistance of an OCTOBER TERM, 1991 Syllabus WYATT v. COLE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 91-126. Argued January 14, 1992-Decided May 18, 1992 With the assistance of respondent Robbins, an attorney, respondent Cole filed a complaint under the Mississippi replevin statute against his partner, petitioner Wyatt. Mter Cole refused to comply with a state court order to return to Wyatt property seized under the statute, Wyatt brought suit in the Federal District Court under 42 U. S. C. § 1983, challenging the state statute’s constitutionality and seeking injunctive relief and damages. Among other things, the court held the statute unconstitutional and assumed that Cole was subject to liability under Lugar v. Edmondson Oil Co., 457 U. S. 922, in which this Court ruled that private defendants invoking state replevin, garnishment, and
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
Louisiana asserts that it may indefinitely confine Terry Foucha in a mental facility because, although not mentally ill, he might be dangerous to himself or to others if released. For the reasons given in Part II of the Court’s opinion, this contention should be rejected. I write separately, however, to emphasize that the Court’s opinion addresses only the specific statutory scheme before us, which broadly permits in definite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws that provide for detention of insanity acquittees, or on statutes that provide for punishment of persons who commit crimes while mentally ill.
I do not understand the Court to hold that Louisiana may never confine dangerous insanity acquittees after they regain mental health. Under Louisiana law, defendants who carry the burden of proving insanity by a preponderance of the evidence will “escape punishment,” but this affirmative defense becomes relevant only after the prosecution establishes beyond a reasonable doubt that the defendant committed criminal acts with the required level of criminal intent. State v. Marmillion, 339 So. 2d 788, 796 (La. 1976). Although insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, see Jones v. United States, 463 U. S. 354, 368-369, and n. 18 (1983), this finding
JUSTICE O’CONNOR delivered the opinion of the Court. Petitioner David Riggins challenges his murder and robbery convictions on the ground that the State of Nevada unconstitutionally forced an antipsychotic drug upon him during trial. Because the Nevada courts failed to make findings sufficient to support forced administration of the drug, we reverse.
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During the early hours of November 20, 1987, Paul Wade was found dead in his Las Vegas apartment. An autopsy revealed that Wade died from multiple stab wounds, including wounds to the head, chest, and back. David Riggins was arrested for the killing 45 hours later.
A few days after being taken into custody, Riggins told Dr. R. Edward Quass, a private psychiatrist who treated patients at the Clark County Jail, about hearing voices in his head and having trouble sleeping. Riggins informed Dr. Quass that he had been successfully treated with Mellaril in the past. Mellaril is the trade name for thioridazine, an antipsychotic drug. After this consultation, Dr. Quass prescribed Mellaril at a level of 100 milligrams per day. Because Riggins continued to complain of voices and sleep problems in the following months, Dr. Quass gradually increased the Mellaril prescription to 800 milligrams per day. Riggins also received a prescription for Dilantin, an antiepileptic drug.
In January 1988, Riggins successfully moved for a determination of his competence to stand trial. App. 6. Three
Defense Lawyers by David M. Eldridge; and for Nevada
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
I join Parts I and II of the Court’s opinion, because in my view they correctly answer the question on which the Court granted certiorari-whether or not an act of inducement is an element of the offense of extortion under color of official right. See Pet. for Cert. i. The issue raised by the dissent and discussed in Part III of the Court’s opinion is not fairly included in this question, see this Court’s Rule 14.1(a), and sound prudential reasons suggest that the Court should not address it. Cf. Yee v. Escondido, 503 U. S. 519, 535-538 (1992). Neither party in this case has briefed or argued the question. A proper resolution of the issue requires a detailed examination of common law extortion cases, which in turn requires intensive historical research. As there appear to be substantial arguments on either side, we would be far more assured of arriving at the correct result were we to await a case in which the issue had been addressed by the parties. It is unfair to the United States to decide a case on a ground not raised by the petitioner and which the United States has had no opportunity to address. For these reasons, I join neither the dissent nor Part III of the Court’s opinion, and I express no view as to which is correct.
JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins, dissenting.
The Court holds that respondents, unlike most plaintiffs who secure compensation after suffering personal injury, must pay tax on their recoveries for alleged discrimination because suits under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 Stat. § 2000e et seq., do not involve “tort type rights.” This is so, the Court says, because “Congress declined to recompense Title VII plaintiffs for anything beyond the wages properly due them.” Ante, at 241. I cannot agree. In my view, the remedies available to Title VII plaintiffs do not fix the character of the right they seek to enforce. The purposes and operation of Title VII are closely analogous to those of tort law, and that similarity should determine excludability of recoveries for personal injury under 26 U. S. C. § 104(a)(2).
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Section 104(a)(2) allows taxpayers to exclude from gross income “damages received… on account of personal injuries or sickness.” The Court properly defers to an Internal Revenue Service (IRS) regulation that reasonably interprets the words “damages received” to mean “an amount received… through prosecution of a legal suit or action based upon tort or tort type rights, or through a settlement agreement entered into in lieu of such prosecution.” 26 CFR § 1.104-1(c) (1991). See ante, at 234; United States v. Correll, 389 U. S. 299 (1967). Therefore, respondents may exclude from gross income any amount they received
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion but write separately to set forth my understanding that the Court does not hold that an appellate court can fulfill its obligations of meaningful review by simply reciting the formula for harmless error. In Chapman v. California, 386 U. S. 18 (1967), we held that before a federal constitutional error can be held harmless, the reviewing court must find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., at 24. This is a justifiably high standard, and while it can be met without uttering the magic words “harmless error,” see ante, at 540, the reverse is not true. An appellate court’s bald assertion that an error of constitutional dimensions was “harmless” cannot substitute for a principled explanation of how the court reached that conclusion. In Clemons v. Mississippi, 494 U. S. 738 (1990), for example, we did not hesitate to remand a case for “a detailed explanation based on the record” when the lower court failed to undertake an explicit analysis supporting its “cryptic,” onesentence conclusion of harmless error. Id., at 753. I agree with the Court that the Florida Supreme Court’s discussion of the proportionality of petitioner’s sentence is not an acceptable substitute for harmless error analysis, see ante, at 539-540, and I do not understand the Court to say that the mere addition of the words “harmless error” would have sufficed to satisfy the dictates of Clemons.
JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins, dissenting.
Notwithstanding its assertions to the contrary, the Court has diminished the States’ regulatory flexibility by creating an impossible situation for those subject to state regulation. Even when a State has a “clearly articulated policy” authorizing anticompetitive behavior-which the Federal Trade Commission concedes was the case here-and even when the State establishes a system to supervise the implementation of that policy, the majority holds that a federal court may later find that the State’s supervision was not sufficiently “substantial” in its “specifics” to insulate the anticompetitive behavior from antitrust liability. Ante, at 635. Given the threat of treble damages, regulated entities that have the option of heeding the State’s anticompetitive policy would be foolhardy to do so; those that are compelled to comply are less fortunate. The practical effect of today’s decision will likely be to eliminate so-called “negative option” regulation from the universe of schemes available to a State that seeks to regulate without exposing certain conduct to federal antitrust liability.
The Court does not dispute that each of the States at issue in this case could have supervised respondents’ joint ratemaking; rather, it argues that “the potential for state super VISIOn was not realized in fact.” Ante, at 638. Such an after-the-fact evaluation of a State’s exercise of its supervisory powers is extremely unfair to regulated
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE THOMAS join, dissenting.
In my view, petitioner has not shown by “clear and cogent evidence” that its investment in ASARCO was not operationally related to the aerospace business petitioner conducted in New Jersey. Exxon Corp. v. Department of Reve nue of Wis., 447 U. S. 207, 221 (1980) (internal quotation marks omitted). Though I am largely in agreement with the Court’s analysis, I part company on the application of it here.
I agree with the Court that we cannot adopt New Jersey’s suggestion that the unitary business principle be replaced by a rule allowing a State to tax a proportionate share of all the income generated by any corporation doing business there. See ante, at 784. Were we to adopt a rule allowing taxation to depend upon corporate identity alone, as New Jersey suggests, the entire due process inquiry would become fictional, as the identities of corporations would fracture in a corporate shell game to avoid taxation. Under New Jersey’s theory, for example, petitioner could avoid having its ASARCO investment taxed in New Jersey simply by establishing a separate subsidiary to hold those earnings outside New Jersey. A constitutional principle meant to ensure that States tax only business activities they can reasonably claim to have helped support should depend on something more than manipulations of corporate structure. See Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425,
JUSTICE O’CONNOR, dissenting.
The Court reaches the remarkable conclusion that criminal defendants being prosecuted by the State act on behalf of their adversary when they exercise peremptory challenges during jury selection. The Court purports merely to follow precedents, but our cases do not compel this perverse result. To the contrary, our decisions specifically establish that criminal defendants and their lawyers are not government actors when they perform traditional trial functions.
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It is well and properly settled that the Constitution’s equal protection guarantee forbids prosecutors to exercise peremptory challenges in a racially discriminatory fashion. See Batson v. Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S. 400, 409 (1991). The Constitution, however, affords no similar protection against private action. “Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendmen[t]…, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be.” National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179, 191 (1988) (footnote omitted). This distinction appears on the face of the Fourteenth Amendment, which provides that “No State shall… deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Arndt. 14, § 1 (emphasis added). The critical but straightforward question this case presents is whether criminal
JUSTICE O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.
In 1988, the Illinois General Assembly enacted the Hazardous Waste Crane and Hoisting Equipment Operators Licensing Act, Ill. Rev. Stat., ch. 111, “7701-7717 (1989), and the Hazardous Waste Laborers Licensing Act, Ill. Rev. Stat., ch. 111, “7801-7815 (1989) (together, licensing acts). The stated purpose of the licensing acts is both “to promote job safety” and “to protect life, limb and property.” “7702, 7802. In this case, we consider whether these “dual impact” statutes, which protect both workers and the general public, are pre-empted by the federal Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U. S. C. § 651 et seq. (OSH Act), and the standards promulgated thereunder by the Occupational Safety and Health Administration (OSHA).
*Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Jane Lauer Barker and Richard Corenthal, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Charles M. Oberly III of Delaware, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan,
JUSTICE O’CONNOR, concurring in Parts I and II, and concurring in the judgment.
I join Parts I and II of the Court’s opinion. I do not agree, however, that the replacement of stale gum served an independent business function. The replacement of stale gum by the sales representatives was part of ensuring the product was available to the public in a form that may be purchased. Making sure that one’s product is available and properly displayed serves no independent business function apart from requesting purchases; one cannot offer a product for sale if it is not available. I agree, however, that the storage of gum in the State and the use of agency stock checks were not ancillary to solicitation and were not de minimis. On that basis, I would hold that Wrigley’s income is subject to taxation by Wisconsin.
JUSTICE O’CONNOR delivered the opinion of the Court. These cases implicate one of our Nation’s newest problems of public policy and perhaps our oldest question of constitutionallaw. The public policy issue involves the disposal of radioactive waste: In these cases, we address the constitutionality of three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. 99-240, 99 Stat. 1842, 42 U. S. C. § 2021bet seq.The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States. We conclude that while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so. We therefore find that only two of the Act’s three provisions at issue are consistent with the Constitution’s allocation of power to the Federal Government.
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We live in a world full of low level radioactive waste. Radioactive material is present in luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants. Low level radioactive waste is generated by the Government, by hospitals, by research institutions, and by various industries. The waste must be isolated from humans for long
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, concurring in the judgment.
I agree that the evidence sufficiently supported respondent’s conviction. I write separately only to express disagreement with certain statements in JUSTICE THOMAS’ extended discussion, ante, at 285-295, of this Court’s habeas corpus jurisprudence.
First, JUSTICE THOMAS errs in describing the pre-1953 law of habeas corpus. Ante, at 285. While it is true that a state prisoner could not obtain the writ if he had been provided a full and fair hearing in the state courts, this rule governed the merits of a claim under the Due Process Clause. It was not a threshold bar to the consideration of O’CONNOR, J., concurring in judgment
other federal claims, because, with rare exceptions, there were no other federal claims available at the time. During the period JUSTICE THOMAS discusses, the guarantees of the Bill of Rights were not yet understood to apply in state criminal prosecutions. The only protections the Constitution afforded to state prisoners were those for which the text of the Constitution explicitly limited the authority of the States, most notably the Due Process Clause of the Fourteenth Amendment. And in the area of criminal procedure, the Due Process Clause was understood to guarantee no more than a full and fair hearing in the state courts. See, e. g., Ponzi v. Fessenden, 258 U. S. 254, 260 (1922) (“One accused of crime has a right to a full and fair trial according to the
JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring in the judgment.
I concur in the judgment of the Court, but I reject its intimation that the balancing of equities is inappropriate in evaluating whether state criminal procedures amount to due process. Ante, at 443-446. We obviously applied the balancing test of Mathews v. Eldridge, 424 U. S. 319 (1976), in Ake v. Oklahoma, 470 U. S. 68 (1985), a case concerning criminal procedure, and I do not see that Ake can be distinguished here without disavowing the analysis on which it rests. The balancing of equities that Mathews v. Eldridge outlines remains a useful guide in due process cases.
In Mathews, however, we did not have to address the question of how much weight to give historical practice; in the context of modern administrative procedures, there was no O’CONNOR, J., concurring in judgment
historical practice to consider. The same is true of the new administrative regime established by the federal criminal sentencing guidelines, and I have agreed that Mathews may be helpful in determining what process is due in that context. See Burns v. United States, 501 U. S. 129, 147-148 (1991) (SOUTER, J., dissenting). While I agree with the Court that historical pedigree can give a procedural practice a presumption of constitutionality, see Patterson v. New York, 432 U. S. 197, 211 (1977), the presumption must surely be rebuttable.
The concept of due process is, “perhaps, the least frozen concept of our law-the least confined
JUSTICE O’CONNOR, dissenting.
I believe the Court of Appeals properly balanced the considerations set forth in Barker v. Wingo, 407 U. S. 514 (1972). Although the delay between indictment and trial was lengthy, petitioner did not suffer any anxiety or restriction on his liberty. The only harm to petitioner from the lapse of time was potential prejudice to his ability to defend his case. We have not allowed such speculative harm to tip the scales. Instead, we have required a showing of actual prejudice to the defense before weighing it in the balance. As we stated in United States v. Loud Hawk, 474 U. S. 302, 315 (1986), the “possibility of prejudice is not sufficient to support respondents’ position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.” The Court of Appeals followed this holding, and I believe we should as well. For this reason, I respectfully dissent.
Notes
3 Citing United States v. Broce, 488 U. S. 563, 569 (1989), the Government argues that, by pleading guilty, Doggett waived any right to claim that the delay would have prejudiced him had he gone to trial. Brief for United States 30. Yet Doggett did not sign a guilty plea simpliciter, but a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), thereby securing
JUSTICE O’CONNOR, dissenting.
I continue to be of the view that in certain circumstances a “reasonable” attorney’s fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take a case in the first place. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 731-734 (1987) (Delaware Valley II) (O’CONNOR, J., concurring in part and concurring in judgment). As JUSTICE BLACKMUN cogently explains, when an attorney must choose between two cases-one with a client who will pay the attorney’s fees win or lose and the other who can only promise the statutory compensation if the case is successful-the attorney will choose the fee-paying client, unless the contingency client can promise an enhancement of sufficient magnitude to justify the extra risk of nonpayment. Ante, at 568-569. Thus, a reasonable fee should be one that would “attract competent counsel,” Delaware Valley II, supra, at 733 (O’CONNOR, J., concurring in part and concurring in judgment), and in some markets this must include the assurance of a contingency enhancement if the plaintiff should prevail. I therefore dissent from the Court’s holding that a “reasonable” attorney’s fee can never include an enhancement for cases taken on contingency. In my view the promised enhancement should be “based on the difference in market treatment of contingent fee cases as a class, rather than on an
JUSTICE O’CONNOR, concurring in No. 91-155 and concurring in the judgment in No. 91-339, post, p. 830.
In the decision below, the Court of Appeals upheld a ban on solicitation of funds within the airport terminals operated by the Port Authority of New York and New Jersey, but struck down a ban on the repetitive distribution of printed or written material within the terminals. 925 F.2d 576 (CA2 1991). I would affirm both parts of that judgment.
I concur in the Court’s opinion in No. 91-155 and agree that publicly owned airports are not public fora. Unlike public streets and parks, both of which our First Amendment jurisprudence has identified as “traditional public fora,” airports do not count among their purposes the “free exchange of ideas,” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 , 800 (1985); they have not “by long tradition or by government fiat … been devoted to assembly and debate,” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 , 45 (1983); nor have they “time out of mind, … been used for purposes of … communicating thoughts between citizens, and discussing public questions,” Hague v. Committee for Industrial Organization, 307 U. S. 496 , 515 (1939). Although most airports do not ordinarily restrict public access, “[p]ublicly owned or operated property does not become a ‘public forum’ simply because members of the public are permitted to come and go at will.” United States v. Grace, 461 U. S. 171 , 177 (1983); see also