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, except as to Part III.
As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants’ allocation of 922,819 overseas military personnel to the State
* Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Sanford M. Cohen, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Thomas D. Barr, and Robert S. Rifkind filed a brief for the State of New York et al. as amici curiae urging affirmance.
Kenneth O. Eikenberry, Attorney General of Washington, James M.
Johnson, Senior Assistant Attorney General, and J. Lawrence Conifffiled a brief for the State of Washington as amicus curiae. designated in their personnel files as their “home of record” altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A threejudge panel of the United States District Court for the District of Massachusetts held that the decision to allocate
JUSTICE O’CONNOR, concurring.
I join the opinion of the Court, which requires public universities, like public elementary and secondary schools, to affirmatively dismantle their prior de jure segregation in order to create an environment free of racial discrimination and to make aggrieved individuals whole. See Brown v. Board of Education, 349 U. S. 294, 299 (1955); Milliken v. Bradley, 418 U. S. 717, 746 (1974). I write separately to emphasize that it is Mississippi’s burden to prove that it has undone its prior segregation, and that the circumstances in which a State may maintain a policy or practice traceable to de jure segregation that has segregative effects are narrow. In light of the State’s long history of discrimination, and the lost educational and career opportunities and stigmatic harms caused by discriminatory educational systems, see Brown v. Board of Education, 347 U. S. 483, 494 (1954); Sweatt v. Painter, 339 U. S. 629, 634-635 (1950); McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-641 (1950), the courts below must carefully examine Mississippi’s proffered justifications for maintaining a remnant of de jure segregation to ensure that such rationales do not merely mask the perpetuation of discriminatory practices. Where the State can accomplish legitimate educational objectives through less segregative means, the courts may infer lack of good faith; “at the least it places a heavy burden upon the [State] to explain its preference for an
For the reasons expressed in the Opinions of JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, see ante,p. 685 (O’CONNOR, J., concurring in No. 91-155 and concurring in judgment in No. 91-339),ante,p. 693 (KENNEDY, J., concurring in judgments), and ante,p. 709 (SOUTER, J., concurring in judgment in No. 91-339 and dissenting in No. 91-155), the judgment of the Court of Appeals holding that the ban on distribution of literature in the Port Authority airport terminals is invalid under the First Amendment is
Affirmed.
JUSTICE O’CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV; V-B, and V-D.
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Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade , 410 U. S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae , the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.
At issue in these cases are five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons. Stat. §§ 3203-3220 (1990). Relevant portions of the Act are set forth in the Appendix. Infra , at 902. The Act requires that a woman seeking an abortion give her informed consent prior to the abortion procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed. § 3205. For a minor to obtain an abortion, the Act requires the informed consent of one of her parents, but provides for a judicial bypass option if the minor does not wish to or cannot obtain a parent’s consent. § 3206. Another provision of
JUSTICE O’CONNOR delivered the opinion of the Court. Kentucky’s “Persistent felony offender sentencing” statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid underBoykinv.Alabama,395 U. S. 238(1969). The trial court, after a hearing, rejected this claim, and respondent was convicted and sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky’s procedure for determining a prior conviction’s validity underBoykinviolates the Due Process Clause of the Fourteenth
* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal. Amendment because it does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding
JUSTICE O’CONNOR delivered the opinion of the Court. The question in this case is whether the Supreme Court of Arizona has cured petitioner’s death sentence of vagueness error.
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On August 25, 1973, Bernard Crummett had the misfortune to meet Rebecca Corella in a Tucson, Arizona, bar. Crummett left the bar with Corella and, in the parking lot, met petitioner, who had been waiting for Corella with his girlfriend, Faith Erwin. Corella agreed to perform an act of prostitution with Crummett, and petitioner drove the group to Corella’s hotel. There, Corella communicated to petitioner that Crummett was “loaded,” and petitioner in turn whispered to Erwin that he intended to rob Crummett.
After Corella and Crummett concluded their encounter at the hotel, the group again went for a drive, this time to a deserted area outside Tucson, where, Crummett believed, Corella would perform another act of prostitution. Petitioner stopped the car and got out. He first struck Crummett to the ground and next threw several large rocks at Crummett’s head. Crummett’s watch and wallet were OCTOBER TERM, 1992 Syllabus RICHMOND v. LEWIS, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 91-7094. Argued October 13, 1992-Decided December 1,1992 Following a sentencing hearing on petitioner Richmond’s first degree murder conviction, the Arizona trial judge found three statutory aggravating factors, including, under Ariz. Rev. Stat.
JUSTICE O’CONNOR, concurring.
If ever there was a plaintiff who deserved no attorney’s fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Appeals, he got one dollar from one defendant. As the Court holds today, that is simply not the type of victory that merits an award of attorney’s fees. Accordingly, I join the Court’s opinion and concur in its judgment. I write separately only to explain more fully why, in my view, it is appropriate to deny fees in this case.
I
Congress has authorized the federal courts to award “a reasonable attorney’s fee” in certain civil rights cases, but only to “the prevailing party.” 42 U. s. C. § 1988; Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 782, 789 (1989). To become a prevailing party, a plaintiff must obtain, at an absolute minimum, “actual relief on the merits of [the] claim,” ante, at 111, which “affects the behavior of the defendant towards the plaintiff,” Hewitt v. Helms, 482 U. S. 755, 761 (1987) (emphasis omitted); accord, ante, at 111-112 (relief obtained must “alte[r] the legal relationship between the parties” and “modif[y] the defendant’s behavior in a way that directly benefits the plaintiff”). Joseph Farrar met that minimum condition for prevailing party status. Through this lawsuit, he obtained an enforceable judgment for one dollar in nominal damages. One dollar is not exactly
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, dissenting.
Petitioners act in organized groups to overwhelm local police forces and physically blockade the entrances to respondents’ clinics with the purpose of preventing women from exercising their legal rights. Title 42 U. S. C. § 1985(3) provides a federal remedy against private conspiracies aimed at depriving any person or class of persons of the “equal protection of the laws,” or of “equal privileges and immunities under the laws.” In my view, respondents’ injuries and petitioners’ activities fall squarely within the ambit of this statute.
I
The Reconstruction Congress enacted the Civil Rights Act of 1871, also known as the Ku Klux Act (Act), 17 Stat. 13, to combat the chaos that paralyzed the post-War South. Wil son v. Garcia, 471 U. S. 261, 276-279 (1985); Briscoe v. LaHue, 460 U. S. 325, 336-339 (1983). Section 2 of the Act extended the protection of federal courts to those who effectively were prevented from exercising their civil rights by the threat of mob violence. Although the immediate purpose of § 1985(3) was to combat animosity against blacks and their supporters, Carpenters v. Scott, 463 U. S. 825, 836 (1983), the language of the Act, like that of many Reconstruction statutes, is more expansive than the historical circumstances that inspired it. The civil-remedy component of § 2, codified at 42 U. S. C. § 1985(3), speaks in general terms, and provides a federal cause of action to any person injured or
JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring.
I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed-“contrary to contemporary standards of decency,” post, at 430 (dissenting opinion) (relying on Ford v. Wainwright, 477 U. S. 399, 406 (1986)), “shocking to the conscience,” post, at 430 (relying on Rochin v. California, 342 U. S. 165, 172 (1952)), or offensive to a ‘” “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,”‘” ante, at 407-408 (opinion of the Court) (quoting Medina v. California, 505 U. S. 437, 445-446 (1992), in turn quoting Patterson v. New York, 432 U. S. 197,202 (1977))-the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word.
As the Court explains, ante, at 398-400, petitioner is not innocent in the eyes of the law because, in our system of justice, “the trial is the paramount event for determining the guilt or innocence of the defendant,” ante, at 416. Accord, post, at 441 (dissenting opinion). In petitioner’s case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion and concur in its judgment. I write separately only to point out that today’s decision will, in the vast majority of cases, have no effect on the prejudice inquiry under Strickland v. Washington, 466 U. S. 668 (1984). The determinative question-whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694-remains unchanged. This case, however, concerns the unusual circumstance where the defendant attempts to demonstrate prejudice based on considerations that, as a matter of law, ought not inform the inquiry. As we explained in Strickland, certain factors, real though they may be, simply cannot be taken into account:”An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.” Id., at 695.
Since Strickland, we have recognized that neither the likely effect of perjured testimony nor the impact
JUSTICE O’CONNOR delivered the opinion of the Court. Rule S(b) of the Federal Rules of Criminal Procedure provides that defendants may be charged together “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Rule 14 of the Rules, in turn, permits a district court to grant a severance of defendants if “it appears that a defendant or the government is prejudiced by a joinder.” In this case, we consider whether Rule 14 requires severance as a matter of law when codefendants present “mutually antagonistic defenses.”
I
Gloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto were accused of distributing illegal drugs in the Chicago area, operating primarily out of Soto’s bungalow in Chicago and Zaftro’s apartment in Cicero, a nearby suburb. One day, Government agents observed Garcia and Soto place a large box in Soto’s car and drive from Soto’s bungalow to Zaftro’s apartment. The agents followed the two as they carried the box up the stairs. When the agents identified themselves, Garcia and Soto dropped the box and ran into the apartment. The agents entered the apartment in pursuit and found the four petitioners in the living room. The dropped box contained 55 pounds of cocaine. After obtaining a search warrant for the apartment, agents found approximately 16 pounds of cocaine, 25 grams of heroin, and 4 pounds of marijuana inside a suitcase in a closet. Next to the suitcase
JUSTICE O’CONNOR delivered the opinion of the Court. This is yet another dispute arising out of legislative redistricting and reapportionment. See,e.g.,Growev.Emison,ante, p. 25. Today we consider whether Ohio’s creation of several legislative districts dominated by minority voters violated § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973.
I
Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years. Ohio Const., Art. XI, § 1. In 1991, the board selected James Tilling to draft a proposed apportionment plan. After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majorityminority districts-districts in which a majority of the population is a member of a specific minority group. The board adopted the plan with minor amendments by a 3-to-2 vote along party lines. The board’s three Republican members voted for the plan; the two Democrats voted against it. 794 F. Supp. 695, 698, 716-717 (ND Ohio 1992); App. to Juris. Statement 160a-167a, 183a.
Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan’s invalidation. They alleged that the plan violated § 2 of the Voting
JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring.
I join the Court’s opinion and write separately simply to clarify that in my view these children have a constitutionally protected interest in freedom from institutional confinement. That interest lies within the core of the Due Process Clause, and the Court today does not hold otherwise. Rather, we reverse the decision of the Court of Appeals because the INS program challenged here, on its face, complies with the requirements of due process.
“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992). “Freedom from bodily restraint” means more than freedom from handcuffs, straitjackets, or detention cells. A person’s core liberty interest is also implicated when she is confined in a prison, a mental hospital, or some other form of custodial institution, even if the conditions of confinement are liberal. This is clear beyond cavil, at least where adults are concerned. “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause…. ” De Shaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 200 (1989). The institutionaliz
JUSTICE O’CONNOR, with whom JUSTICE SCALIA, JUSTICE SOUTER, and JUSTICE THOMAS join, dissenting.
Today the Court replaces the straightforward analysis commended by the language of Bankruptcy Rule 9006(b)(1) with a balancing test. Because the Court’s approach is inconsistent with the Rule’s plain language and unduly complicates the task of courts called upon to apply it, I respectfully dissent.
I
Bankruptcy Rule 9006(b)(1) provides that, if a party moves for permission to act after having missed a deadline, the court “may at any time in its discretion… permit the act to be done where the failure to act was the result of excusable neglect.” This language establishes two requirements that must be met before untimely action will be permitted. First, no relief is available unless the failure to comply with the deadline “was the result of excusable neglect.” Bkrtcy. Rule 9006(b)(1). Second, the court may withhold relief if it believes forbearance inappropriate; the statute does not re quire the court to forgive every omission caused by excusable neglect, but states that the court “may” grant relief “in its discretion.” Ibid. (emphasis added). Thus, the court must at the threshold determine its authority to allow untimely action by asking whether the failure to meet the deadline resulted from excusable neglect; if the answer is yes, then the court should consider the equities and decide whether to excuse the error.
Instead of following the plain meaning of the Rule and examining
JUSTICE O’CONNOR delivered the opinion of the Court.
In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” Idaho Code § 19-2515(g)(6) (1987). The sole question we must decide is whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.
I
The facts underlying this case could not be more chilling.
Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims-who were shot, stabbed, beaten, or strangled to death-have been recovered in seven States. Creech has said repeatedly that, unless he is completely isolated from humanity, he likely will continue killing. And he has identified by name three people outside prison walls he intends to kill if given the opportunity.
Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech’s junior, was a nonviolent car thief. He was also physically
JUSTICE O’CONNOR, with whom JUSTICE SOUTER joins, concurring.
Applicants challenged certain provisions of the North Dakota Abortion Control Act, N. D. Cent. Code §§ 14-02.1-01 to 14-Â02.1-12 (1991), in the United States District Court for the District of North Dakota. Relying on our decision in United States v. Salerno, 481 U. S. 739 (1987), the District Court granted summary judgment against applicants. The court reasoned that applicants could not mount a successful facial challenge because they were unable to show that â âno set of circumstances exists under which the [challenged provisions] would be valid.ââ Fargo Women’s Health Organization v. Skinner, No. A3-91-95 (Feb. 19, 1993) (quoting Salerno, supra, at 745). The court denied applicantsâ motion for a stay and injunction pending appeal. See Fargo Womenâs Health Organization v. Schafer, No. A3-91-95 (Mar. 9, 1993). The Court of’Appeals for the Eighth Circuit also denied a motion for stay and injunction pending appeal. It agreed with the District Court that the Salerno standard applied and concluded that this Courtâs decision last Term in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not counsel a different approach.. See Fargo Womenâs Health Organization v. Schafer, No. 93-1579 (Mar. 30, 1993). The appeal was expedited, and argument is scheduled for April 14, 1993.
Applicants now ask us for a stay of the District Courtâs judgment and for injunction relief. When a matter is pending before a
JUSTICE O’CONNOR delivered the opinion of the Court.
In this original action we revisit the dispute among Nebraska, Wyoming, Colorado, and the United States over water rights to the North Platte River. In 1945, this Court entered a decree establishing interstate priorities on the North Platte and apportioning the natural flow of one critical portion of the river during the irrigation season. Nebraska returned to the Court in 1986 seeking an order for enforcement of the decree and injunctive relief. A Special Master, appointed by the Court, has supervised pretrial proceedings and discovery since 1987. Before us now are the Special Master’s recommended dispositions of several summary judgment motions, together with exceptions filed to the Special Master’s reports.
I
The North Platte River rises in northern Colorado and flows through Wyoming into Nebraska, where it joins the South Platte River. The topology of the river and the history of its early development are described at length in the Court’s 1945 opinion. See Nebraska v. Wyoming, 325 U. S.
*Briefs of amici curiae were filed for the Basin Electric Power Cooperative by Edward Weinberg, Richmond F. Allan, Michael J. Hinman, and Claire Olson; and for the National Audubon Society et al. by Peter A. A. Berle and Abbe David Lowell. 589, 592-599. In 1934, Nebraska, invoking this Court’s original jurisdiction under Article III, § 2, of the Constitution, brought an action against Wyoming seeking an equitable apportionment of the
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case we clarify the standards for liability and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq.
I
Petitioner Hazen Paper Company manufactures coated, laminated, and printed paper and paperboard. The company is owned and operated by two cousins, petitioners Robert Hazen and Thomas N. Hazen. The Hazens hired respondent Walter F. Biggins as their technical director in 1977. They fired him in 1986, when he was 62 years old.
Respondent brought suit against petitioners in the United States District Court for the District of Massachusetts, alleging a violation of the ADEA. He claimed that age had been a determinative factor in petitioners’ decision to fire him. Petitioners contested this claim, asserting instead that respondent had been fired for doing business with competitors of Hazen Paper. The case was tried before a jury, which rendered a verdict for respondent on his ADEA claim and also found violations of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, § 510, 29 U. S. C. § 1140, and state law. On the ADEA count, the jury specifically found that petitioners “willfully” violated the statute. Under § 7(b) of the ADEA, 29 U. S. C. § 626(b), a “willful” violation gives rise to liquidated damages.
*Robert E. Williams, Douglas S. McDowell, and Mona C. Zeiberg filed a brief for the Equal Employment Advisory
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.
Today the Court permits the federal courts to overturn on habeas the conviction of a double murderer, not on the basis of an inexorable constitutional or statutory command, but because it believes the result desirable from the standpoint of equity and judicial administration. Because the principles that inform our habeas jurisprudence-finality, federalism, and fairness-counsel decisively against the result the Court reaches, I respectfully dissent from this holding.
I
The Court does not sit today in direct review of a statecourt judgment of conviction. Rather, respondent seeks relief by collaterally attacking his conviction through the writ of habeas corpus. While petitions for the writ of habeas corpus are now commonplace-over 12,000 were filed in 1990, compared to 127 in 1941-their current ubiquity ought not detract from the writ’s historic importance. See L. Mecham, Annual Report of the Director of the Administrative Office of the United States Courts 191 (1991) (1990 figures); Fay v. Noia, 372 U. S. 391, 446, n. 2 (1963) (Clark, J., dissenting) (1941 figures). “The Great Writ” can be traced through the common law to well before the founding of this Nation; its role as a “prompt and efficacious remedy for whatever society deems to be intolerable restraints” is beyond question. Fay, 372 U. S., at 401-402. As Justice Harlan explained:”Habeas corpus ad subjiciendum is today, as
JUSTICE O’CONNOR, dissenting.
I have no dispute with the Court’s observation that “collateral review is different from direct review.” Ante, at 633. Just as the federal courts may decline to adjudicate certain issues of federal law on habeas because of prudential concerns, see Withrow v. Williams, post, at 686; post, at 699-700 (O’CONNOR, J., concurring in part and dissenting in part), so too may they resolve specific claims on habeas using different and more lenient standards than those applicable on direct review, see, e. g., Teague v. Lane, 489 U. S. 288, 299-310 (1989) (habeas claims adjudicated under the law prevailing at time conviction became final and not on the basis of intervening changes of law). But decisions concerning the Great Writ “warrant restraint,” Withrow, post, at 700 (O’CONNOR, J., concurring in part and dissenting in part), for we ought not take lightly alteration of that “‘fundamental safeguard against unlawful custody,'” post, at 697-698 (quoting Fay v. Noia, 372 U. S. 391, 449 (1963) (Harlan, J., dissenting)).
In my view, restraint should control our decision today.
The issue before us is not whether we should remove from the cognizance of the federal courts on habeas a discrete prophylactic rule unrelated to the truthfinding function of trial, as was the case in Stone v. Powell, 428 U. S. 465 (1976), and more recently in Withrow v. Williams, post, p. 680. Rather, we are asked to alter a standard that not only finds application in virtually every
JUSTICE O’CONNOR delivered the opinion of the Court. The question in this case is whether the presence of alternate jurors during jury deliberations was a “plain error” that the Court of Appeals was authorized to correct under Federal Rule of Criminal Procedure 52(b).
I
Each of the respondents, Guy W. Olano, Jr., and Raymond M. Gray, served on the board of directors of a savings and loan association. In 1986, the two were indicted in the Western District of Washington on multiple federal charges for their participation in an elaborate loan “kickback” scheme. Their joint jury trial with five other codefendants commenced in March 1987. All of the parties agreed that 14 jurors would be selected to hear the case, and that the 2 alternates would be identified before deliberations began.
On May 26, shortly before the end of the 3-month trial, the District Court suggested to the defendants that the two alternate jurors, soon to be identified, might be allowed to attend deliberations along with the regular jurors:”… I’d just like you to think about it, you have a day, let me know, it’s just a suggestion and you can-if there is even one person who doesn’t like it we won’t do it, but it is a suggestion that other courts have followed in long cases where jurors have sat through a lot of testimony, and that is to let the alternates go in but not participate, but just to sit in on deliberations.”I t’s strictly a matter of courtesy and I know many judges have done it with no objections
JUSTICE O’CONNOR, dissenting.
I continue to believe that this Court took a wrong turn with Bates v. State Bar of Arizona, 433 U. S. 350 (1977), and that it has compounded this error by finding increasingly unprofessional forms of attorney advertising to be protected speech. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988); Peel v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U. S. 91 (1990) (plurality opinion). These cases consistently focus on whether the challenged advertisement directly harms the listener: whether it is false or misleading, or amounts to “overreaching, invasion of privacy, [or] the exercise of undue influence,” Shapero, supra, at 475. This focus is too narrow. In my view, the States have the broader authority to prohibit commercial speech that, albeit not directly harmful to the listener, is inconsistent with the speaker’s membership in a learned profession and therefore damaging to the profession and society at large. See Zauderer, supra, at 676-677 (O’CONNOR, J., concurring in part, concurring in judgment in part, and dissenting in part); Shapero, supra, at 488-491 (O’CONNOR, J., dissenting); Peel, supra, at 119 (O’CONNOR, J., dissenting). In particular, the States may prohibit certain “forms of competition usual in the business world,” Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975) (internal quotation marks omitted), on the grounds
JUSTICE O’CONNOR delivered the opinion of the Court. This is another in the long line of cases, beginning withMcCullochv.Maryland,4 Wheat. 316 (1819), in which the Federal Government asks this Court for relief from what it considers illegal state taxes. Unlike the typical tax immunity case, however, we are not presented with a claim that the state tax is unconstitutional; instead, the question is whether the Federal Government may recover taxes it claims were wrongfully assessed under California law against one of the Government’s private contractors.
I
The United States has established three Naval Petroleum Reserves in California and Wyoming, one of which is Naval Petroleum Reserve No.1, located in Kern County, California. 10 U. S. C. § 7420. First through the Department of the Navy and later through the Department of Energy, the United States contracted with Williams Brothers Engineering Company (WBEC) to manage oil drilling operations at Reserve No. 1 from 1975 to 1985. Under the contract, WBEC received an annual fixed fee plus reimbursement for costs, which the contract defined to include state sales and use taxes.
California assessed approximately $14 million in sales and use taxes, pursuant to Cal. Rev. & Tax. Code Ann. § 6384 (West 1987), against WBEC for the years 1975 through 1981.
Illinois, Bonnie J. Campbell of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Hubert H. Humphrey III
JUSTICE O’CONNOR, Circuit Justice.
I have before me an application requesting that I vacate a remand order issued by an en banc panel of the United States Court of Appeals for the Ninth Circuit. This is not the first time that applicant James Blodgett, who is Superintendent of the Washington State Penitentiary, has sought relief here with respect to Charles Campbell’s second petition for a writ of habeas corpus. Last Term applicant sought a writ of mandamus to compel the United States Court of Appeals for the Ninth Circuit to issue a decision in Campbell’s appeal from a District Court decision denying the petition. In re Blodgett, 502 U. S. 236 (1992). Campbell’s appeal, which had been argued and submitted on June 27, 1989, still had not been resolved in January 1992, a delay of well over two years. Id., at 237. Although we declined to issue a writ of mandamus-applicant had failed to seek appropriate relief from the Court of Appeals before seeking extraordinary relief here, id., at 240-we expressed concern about the delay and noted that applicant was free to seek mandamus relief again if the panel did not handle the case expeditiously. Id., at 240-241. In fact, we cautioned that “[i]n view of the delay that has already occurred any further postponements or extensions of time will be subject to a most rigorous scrutiny in this Court if [applicant] files a further and meritorious petition for relief.” Ibid. Approximately three months later, the Ninth Circuit panel issued an opi
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case, we consider whether the State of Oklahoma may impose income taxes or motor vehicle taxes on the members of the Sac and Fox Nation.
I
The Sac and Fox Nation (Tribe) is a federally recognized Indian tribe located in the State of Oklahoma. Until the mid-18th century, the Tribe lived in the Great Lakes region of the United States. M. Wright, A Guide to the Indian Tribes of Oklahoma 225 (1951). In 1789, it entered into its first treaty with the United States and ceded much of its land. See Treaty at Fort Harmar, 7 Stat. 28. That was only the first of many agreements between the Government and the Tribe in which the Tribe surrendered its land and moved elsewhere. As part of its gradual, treaty-imposed migration, the Tribe stopped briefly along the Mississippi and Missouri Rivers in what are now the States of Illinois, Missouri, Iowa, and Nebraska. Wright, Guide to Indian
Briefs of amici curiae urging affirmance were filed for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation et al. by Reid Peyton Chambers and Jeannette Wolfley; for the Cheyenne-Arapaho Tribes of Oklahoma et al. by Melody L. McCoy, Bertram E. Hirsch, and Thomas W Fredericks; for the Choctaw Nation of Oklahoma by Bob Rabon; and for the Navajo Nation et al. by Paul E. Frye, Wayne H. Bladh, and Stanley M. Pollack. Tribes of Oklahoma, at 225-226. In the mid-19th century, the Sac and Fox Nation ceded land in several States for two reservatio