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.
In Aguilar v. Felton, 473 U. S. 402 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitionersthe parties bound by that injunction-seek relief from its operation. Petitioners maintain that Aguilar cannot be
tBriefs of amici curiae urging reversal were filed for the Becket Fund for Religious Liberty by Kevin J. Hasson; for the Christian Legal Society et al. by Michael W McConnell, Thomas C. Berg, Steven T. McFarland, Kimberlee Wood Colby, and Samuel B. Casey; for the Knights of Columbus by James W Shannon, Jr.; for the National Jewish Commission on Law and Public Mfairs by Nathan Lewin and Dennis Rapps; for Senator Robert F. Bennett by Ronald D. Maines; and for Sarah Peter et al. by Michael Joseph Woodruff and Scott J. Ward.
Briefs of amici curiae urging affirmance were filed for the American Jewish Congress et al. by Norman Redlich, Marc D. Stern, Marvin E. Frankel, David J. Strom, Richard T. Foltin, J. Brent Walker, Melissa Rogers, Robert Chanin, John West, Elliot M. Mincberg, and Judith E. Schaeffer; and for Americans United for Separation of Church and State et al.
JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring in part and concurring in the judgment.
The Coeur d’Alene Tribe of Idaho seeks declaratory and injunctive relief precluding Idaho officials from regulating or interfering with its possession of submerged lands beneath Lake Coeur d’Alene. Invoking the doctrine of Ex parte Young, 209 U. S. 123 (1908), the Tribe argues that the Eleventh Amendment does not bar it from pursuing its claims against state officials in federal court. I agree with the Court that the Tribe’s claim cannot go forward in federal court.
In Young, the Court held that a federal court has jurisdiction over a suit against a state officer to enjoin official actions that violate federal law, even if the State itself is immune from suit under the Eleventh Amendment. The Young doctrine recognizes that if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity. Id., at 159-160. Where a plaintiff seeks prospective relief to end a state officer’s ongoing violation of federal law, such a claim can ordinarily proceed in federal court. Milliken v. Bradley, 433 U. S. 267, 289-290 (1977). The doctrine is not, however, without limitations. A federal court cannot award retrospective relief, designed to remedy past violations of federallaw. See Edelman v. Jordan, 415 U. S. 651, 668 (1974); Green v. Mansour,
JUSTICE O’CONNOR, with whom JUSTICE BREYER joins except as to the first paragraph of Part I, dissenting.
I dissent from the Court’s disposition of this case. I agree with the Court that the issue before us is whether the Religious Freedom Restoration Act of 1993 (RFRA) is a proper exercise of Congress’ power to enforce § 5 of the Fourteenth Amendment. But as a yardstick for measuring the constitutionality of RFRA, the Court uses its holding in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court’s holding there. Therefore, I would direct the parties to brief the question whether Smith represents the correct understanding of the Free Exercise Clause and set the case for reargument. If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, it would simultaneously put our First Amendment jurisprudence back on course and allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty. We would then be in a position to review RFRA in light of a proper interpretation of the Free Exercise Clause.
I
I agree with much of the reasoning set forth in Part II I-A of the Court’s opinion. Indeed, if I agreed with the Court’s standard in Smith, I would
JUSTICE O’CONNOR, concurring.* t
Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms.
The Court frames the issue in Washington v. Glucksberg as whether the Due Process Clause of the Constitution protects a “right to commit suicide which itself includes a right to assistance in doing so,” ante, at 723, and concludes that our Nation’s history, legal traditions, and practices do not support the existence of such a right. I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ibid. (“The Washington statute at issue in this case prohibits ‘aid[ing] another person to attempt suicide,’… and, thus, the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so”). The parties and amici agree that in these States a patient who
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part.
I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster.
Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the “indecency transmission” provision, makes it a crime to knowingly transmit an obscene or indecent message or image to a person the sender knows is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). What the Court classifies as a single” ‘patently offensive display'” provision, see ante, at 859, is in reality two separate provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of 18 (“specific person” provision). § 223(d)(1)(A). The second criminalizes the display of patently offensive messages or images “in a[ny] manner available” to minors (“display” provision). § 223(d)(1)(B). None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have
JUSTICE O’CONNOR, concurring.* t
Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms.
The Court frames the issue in Washington v. Glucksberg as whether the Due Process Clause of the Constitution protects a “right to commit suicide which itself includes a right to assistance in doing so,” ante, at 723, and concludes that our Nation’s history, legal traditions, and practices do not support the existence of such a right. I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ibid. (“The Washington statute at issue in this case prohibits ‘aid[ing] another person to attempt suicide,’… and, thus, the question before us is whether the ‘liberty’ specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so”). The parties and amici agree that in these States a patient who
JUSTICE O’CONNOR, concurring.
Our precedent and our Nation’s historical practices support the Court’s holding today. The Brady Act violates the Tenth Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers. See ante, at 922. Our holding, of course, does not spell the end of the objectives of the Brady Act. States and chief law enforcement officers may voluntarily continue to participate in the federal program. Moreover, the directives to the States are merely interim provisions scheduled to terminate November 30, 1998. Note following 18 U. S. C. § 922. Congress is also free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs. See, e. g., 23 U. S. C. § 402 (conditioning States’ receipt of federal funds for highway safety program on compliance with federal requirements).
In addition, the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e. g., 42 U. S. C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice). The provisions invalidated here, however, which directly compel state officials to administer a federal
JUSTICE O’CONNOR delivered the opinion of the Court. Under § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, “[e]very contract, combination…, or conspiracy, in restraint of trade” is illegal. InAlbrechtv.HeraldCo.,390 U. S. 145(1968), this Court held that vertical maximum price fixing is aper seviolation of that statute. In this case, we are asked to reconsider that decision in light of subsequent decisions of this Court. We conclude thatAlbrechtshould be overruled.
I
Respondents, Barkat U. Khan and his corporation, entered into an agreement with petitioner, State Oil Company, to lease and operate a gas station and convenience store owned
*Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Stephen M. Shapiro, Roy T. Englert, Jr., Donald M. Falk, Phillip D. Brady, and Charles H. Lockwood II; for the American Petroleum Institute by Edwin M. Zimmerman, Robert A. Long, Jr., G. William Frick, Harry M. Ng, and Douglas W Morris; for the Business Roundtable by Thomas B. Leary and Robert C. Weinbaum; and for the Newspaper Association of America et al. by William T. Lifiand, Patricia Farren, David S. J. Brown, Rene P. Milam, Peter C. Gould, Andrew Merdek, William T. Garcia, Cristina L. Mendoza, and George Freeman.
Briefs of amici curiae were filed for the Association of the Bar of the City of New York by Richard M. Steuer; for the Coalition for Fair Consumer Pricing by Steven B. Feirman, Barry M. Heller,
JUSTICE O’CONNOR delivered the opinion of the Court. The city of Chicago, like municipalities throughout the country, has an ordinance that provides for the designation and protection of historical landmarks. Chicago Municipal Code, Art. XVII, §§2-120-580 through 2-120-920 (1990). The city’s Landmarks Ordinance is administered by the Commission on Chicago Historical and Architectural Landmarks (Chicago Landmarks Commission or Commission). Pursuant to the Illinois Administrative Review Law, Ill. Compo Stat., ch. 735, §§ 5/3-103,5/3-104 (Supp. 1997), judicial review of final decisions of a municipal landmarks commission lies in state circuit court. In this case, we are asked to consider whether a lawsuit filed in the Circuit Court of Cook County seeking judicial review of decisions of the Chicago Landmarks Commission may be removed to federal district court, where the case contains both federal constitutional and state administrative challenges to the Commission’s decisions.
I
Respondents International College of Surgeons and the United States Section of the International College of Surgeons (jointly ICS) own two properties on North Lake Shore Drive in the city of Chicago. In July 1988, the Chicago Landmarks Commission made a preliminary determination that seven buildings on Lake Shore Drive, including two
*Briefs of amici curiae urging reversal were filed for the State of Indiana by Jeffrey A. Modisett, Attorney General, and Geoffrey Slaughter and Anthony Scott Chinn, Deputy
JUSTICE O’CONNOR, with whom JUSTICE SCALIA joins, concurring in the result.
As the plurality points out, we granted certiorari to address an important issue of constitutional law, and we ought not to decide the question if it has not been cleanly presented. In my view, it is sufficient to dismiss the writ that the instructions tendered by the District Court were ambiguous on whether the jury was asked to find, as is required by Staples v. United States, 511 U. S. 600 (1994), that petitioner “knew that the item he possessed was a silencer,” ante, at 257. As a result, it is at least unclear whether the question we intended to address in this case-whether a district court’s failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element-is squarely presented. For that reason, I concur in the dismissal of the writ as improvidently granted. I share the plurality’s concern, ante this page, n. 7, that trial courts should structure their instructions in cases implicating Staples in a way that prevents the possible interpretation identified by JUSTICE KENNEDY in his dissent.
Notes
7 Of course, if the instruction merely required the jury to find that the defendant knowingly possessed a canvas bag, or knowingly possessed a dangerous item that might not have had the characteristics of a silencer, it would not have complied with Staples. Our disposition is based on our view that the instruction required the jury to find that
JUSTICE O’CONNOR delivered the opinion of the Court. The Privileges and Immunities Clause, U. S. Const., Art.
IV; § 2, provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” In this case, we consider whether a provision of New York law that effectively denies only nonresident taxpayers an income tax deduction for alimony paid is consistent with that constitutional command. We conclude that because New York has not adequately justified the discrimi natory treatment of nonresidents effected by N. Y. Tax Law § 631(b)(6), the challenged provision violates the Privileges and Immunities Clause.
I A
New York law requires nonresident individuals to pay tax on net income from New York real property or tangible personalty and net income from employment or business, trade, or professional operations in New York. See N. Y. Tax Law §§ 631(a), (b) (McKinney 1987). Under provisions enacted by the New York Legislature in 1987, the tax on such income is determined according to a method that takes into consideration the relationship between a nonresident taxpayer’s New York source income and the taxpayer’s total income, as reported to the Federal Government. § 601(e)(1).
Computation of the income tax nonresidents owe New York involves several steps. First, nonresidents must compute their tax liability “as if” they resided in New York. Ibid. The starting point for this computation is federal adjusted gross income, which,
JUSTICE O’CONNOR delivered the opinion of the Court. This case presents the question whether, in an 1894 statute that ratified an agreement for the sale of surplus tribal lands, Congress diminished the boundaries of the Yankton Sioux Reservation in South Dakota. The reservation was established pursuant to an 1858 Treaty between the United States and the Yankton Sioux Tribe. Subsequently, under the Indian General Allotment Act, Act of Feb. 8, 1887, 24 Stat. 388, 25 U. S. C. § 331 (Dawes Act), individual members of the Tribe received allotments of reservation land, and the Government then negotiated with the Tribe for the cession of the remaining, unallotted lands. The issue we confront illustrates the jurisdictional quandaries wrought by the allotment policy: We must decide whether a landfill constructed on non-Indian fee land that falls within the boundaries of the original Yankton Reservation remains subject to federal environmental regulations. If the divestiture of Indian property in 1894 effected a diminishment of Indian territory, then the ceded lands no longer constitute “Indian country” as defined by 18 U. S. C. § 1151(a), and the State now has primary jurisdiction over them. In light of the operative language of the 1894 Act, and the circumstances surrounding its passage, we hold that Congress intended to diminish the Yankton Reservation and consequently that the waste site is not in Indian country.
I A
At the outset of the 19th century, the Yankton Sioux Tribe held
JUSTICE O’CONNOR, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.
In determining that respondents have standing under the zone-of-interests test to challenge the National Credit Union Administration’s (NCUA’s) interpretation of the “common bond” provision of the Federal Credit Union Act (FCUA), 12 U. S. C. § 1759, the Court applies the test in a manner that is contrary to our decisions and, more importantly, that all but eviscerates the zone-of-interests requirement. In my view, under a proper conception of the inquiry, “the interest sought to be protected by” respondents in this action is not “arguably within the zone of interests to be protected” by the common bond provision. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 153 (1970). Accordingly, I respectfully dissent.
I
Respondents brought this suit under § 10(a) of the Administrative Procedure Act (APA), 5 U. S. C. § 702. To establish their standing to sue here, respondents must demonstrate
lOWe have no need to consider § 109’s legislative history, which, as both courts below found, is extremely “murky” and a “slender reed on which to place reliance.” 90 F. 3d, at 530 (internal quotation marks and citation omitted). O’CONNOR, J., dissenting
that they are “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” Ibid.; see Air Courier Conference v. Postal Workers, 498 U. S. 517, 523 (1991); Lujan v. National Wildlife
JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring.
I join the Court’s opinion. I agree that our precedent supports the Court’s holding that respondent lacks Article III standing because its injuries cannot be redressed by a judgment that would, in effect, require only the payment of penalties to the United States Treasury. As the Court notes, ante, at 108, had respondent alleged a continuing or imminent violation of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U. S. C. § 11046, the requested injunctive relief may well have redressed the asserted injury.
I also agree with the Court’s statement that federal courts should be certain of their jurisdiction before reaching the merits of a case. As the Court acknowledges, however, several of our decisions “have diluted the absolute purity of the rule that Article III jurisdiction is always an antecedent question.” Ante, at 101. The opinion of the Court adequately describes why the assumption of jurisdiction was defensible in those cases, see ante, at 98-100, and why it is not in this case, see ante, at 92-93. I write separately to note that, in my view, the Court’s opinion should not be read as cataloging an exhaustive list of circumstances under which federal courts may exercise judgment in “reserv[ing] difficult questions of… jurisdiction when the case alternatively could be resolved on the merits in favor of the same party,” Norton v. Mathews, 427 U. S. 524, 532 (1976).
JUSTICE O’CONNOR delivered the opinion of the Court. Section 523(a)(2)(A) of the Bankruptcy Code (Code) excepts from discharge in bankruptcy “any debt… for money,
property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by… false pretenses, a false representation, or actual fraud.” 11 U. S. C. § 523(a)(2)(A). The issue in this case is whether § 523(a)(2)(A) bars the discharge of treble damages awarded on account of the debtor’s fraudulent acquisition of “money, property, services, or… credit,” or whether the exception only encompasses the value of the “money, property, services, or… credit” the debtor obtains through fraud. We hold that § 523(a)(2)(A) prevents the discharge of all liability arising from fraud, and that an award of treble damages therefore falls within the scope of the exception.
I
Petitioner owned several residential properties in and around Hoboken, New Jersey, one of which was subject to a local rent control ordinance. In 1989, the Hoboken Rent Control Administrator determined that petitioner had been charging rents above the levels permitted by the ordinance, and ordered him to refund to the affected tenants, who are respondents in this Court, $31,382.50 in excess rents charged. Petitioner did not comply with the order.
Petitioner subsequently filed for relief under Chapter 7 of the Bankruptcy Code, seeking to discharge his debts. The tenants filed an adversary proceeding against petitioner in the Bankruptcy
JUSTICE O’CONNOR, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, concurring in part and concurring in the judgment.
A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright, 477 U. S. 399, 429 (1986) (O’CONNOR, J., concurring in result in part and dissenting in part). I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. THE CHIEF JUSTICE’S reasoning rests on our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), and Greenholtz v. Inmates of Neb. Penal and Correctional Com plex, 442 U. S. 1 (1979). In those cases, the Court found that an inmate seeking commutation of a life sentence or discre tionary parole had no protected liberty interest in release from lawful confinement. When a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished. But it is incorrect, as JUSTICE STEVENS’ dissent notes, to say that a prisoner
JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring in the judgment.
This Court has long applied a presumption against thirdparty standing as a prudential limitation on the exercise of federal jurisdiction. Federal courts, we have held, “must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation.” Singleton v. Wulff, 428 U. S. 106, 113 (1976); see also Warth v. Seldin, 422 U. S. 490, 499 (1975). Contrary to this prudential rule, the principal opinion recognizes that petitioner has standing to raise an equal protection challenge to 8 U. S. C. § 1409. The statute, however, accords differential treatment to fathers and mothers, not to sons and daughters. Thus, O’CONNOR, J., concurring in judgment
although petitioner is clearly injured by the fact that she has been denied citizenship, the discriminatory impact of the provision falls on petitioner’s father, Charlie Miller, who is no longer a party to this suit. Consequently, I do not believe that we should consider petitioner’s gender discrimination claim.
The principal opinion recognizes that petitioner’s claim turns on “the proposition that her citizen father should have the same right to transmit citizenship as would a citizen mother” and resolves to “evaluate the alleged discrimination against [petitioner’s father] as well as its impact on [petitioner].” Ante, at 433. But even when “the very same allegedly
JUSTICE O’CONNOR delivered the opinion of the Court. This action, involving the adjudication of various claims to a historic shipwreck, requires us to address the interaction between the Eleventh Amendment and thein remadmiralty jurisdiction of the federal courts. Respondent Deep Sea Research, Inc. (DSR), located the ship, known as the S. S.Brother Jonathan,in California’s territorial waters. When DSR turned to the federal courts for resolution of its claims to the vessel, California contended that the Eleventh Amendment precluded a federal court from considering DSR’s claims in light of the State’s asserted rights to theBrother Jonathanunder federal and state law. We conclude that the Eleventh Amendment does not bar the jurisdiction
*Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Eric J. Taylor, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Michael J. Bowers of Georgia, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Charles Molony Condon of South Carolina, William H. Sorrell of Vermont,
JUSTICE O’CONNOR delivered the opinion of the Court. The question in this case is when a school district may be held liable in damages in an implied right of action under Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C. § 1681et seq.(Title IX), for the sexual harassment of a student by one of the district’s teachers. We conclude that damages may not be recovered in those circumstances unless an official of the school district who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.
I
In the spring of 1991, when petitioner Alida Star Gebser was an eighth-grade student at a middle school in respondent Lago Vista Independent School District (Lago Vista), she joined a high school book discussion group led by Frank Waldrop, a teacher at Lago Vista’s high school. Lago Vista received federal funds at all pertinent times. During the book discussion sessions, Waldrop often made sexually suggestive comments to the students. Gebser entered high school in the fall and was assigned to classes taught by Waldrop in both semesters. Waldrop continued to make inappropriate
*Briefs of amici curiae urging reversal were filed for the National Education Association by Michael D. Simpson and Laurence Gold; and for the National Women’s Law Center et al. by Jacqueline R. Denning, Nancy L. Perkins, and Marcia D. Greenberger.
Briefs of amici curiae urging
JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.
We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933). In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708-710 (1974), “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979). Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) (SCALIA, J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990). We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means
JUSTICE O’CONNOR delivered the opinion of the Court.t The National Foundation on the Arts and the Humanities Act of 1965, as amended in 1990, 104 Stat. 1963, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that “artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” 20 U. S. C. § 954(d)(1). In this case, we review the Court of Ap
*Briefs of amici curiae urging reversal were filed for the American Center for Law and Justice by Jay A. Sekulow, Colby M. May, James M. Henderson, Sr., and John P. Tuskey; for Liberty Counsel by Mathew D. Staver and Frederick H. Nelson; and for the National Family Legal Foundation by Len L. Munsil.
Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by John Joshua Wheeler, Jonathan R. Alger, and Jeffrey P. Cunard; for Americans United for Separation of Church and State by Steven K. Green, Julie A. Segal, and Edward Tabash; for the Family Research Institute of Wisconsin by Daniel Kelly; for the New School for Social Research et al. by Floyd Abrams, Burt Neuborne, Kathleen M. Sullivan, Jonathan Sherman, Elai Katz, and Deborah Goldberg; for the Rockefeller Foundation by Donald B. Verrilli, Jr.; for Twenty-Six Arts, Broadcast, Library, Museum and Publishing Amici Curiae by James F. Fitzpatrick,
JUSTICE O’CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JusTICE SCALIA, and JUSTICE THOMAS join.
In this case, the Court considers a challenge under the Due Process and Takings Clauses of the Constitution to the Coal
*Briefs of amici curiae urging reversal were filed for AlliedSignal Inc. et al. by Donald B. Ayer, Jonathan C. Rose, James E. Gauch, and Gregory G. Katsas; for Davon, Inc., by John W Fischer II; for Pardee & Curtin Lumber Co. et al. by Arthur Newbold, Ethan D. Fogel, and Andrew S. Miller; for Unity Real Estate Co. et al. by Robert H. Bork, David J. Laurent, Patrick M. McSweeney, William B. Ellis, and John L. Marshall; and for the Washington Legal Foundation by Timothy S. Bishop, Daniel
Briefs of amici curiae urging affirmance were filed for the Bituminous Coal Operators’ Association, Inc., by Clifford M. Sloan and Paul L. Joffe; for California Cities and Counties et al. by John R. Calhoun, John D. Echeverria, James K. Hahn, Anthony Saul Alperin, Samuel L. Jackson, Joan R. Gallo, George Rios, Louise H. Renne, Gary T. Ragghianti, and S. Shane Stark; for Cedar Coal Co. et al. by David M. Cohen; for Freeman United Coal Mining Co. by Kathryn S. Matkov; for Ohio Valley Coal Co. et al. by John G. Roberts, Jr.; and for the United Mine Workers of America by Grant Crandall.
Briefs of amici curiae were filed for Midwest Motor Express, Inc., by Hervey H. Aitken, Jr., and Roy A. Sheetz; and for Pittston Co. by A. E. Dick
JUSTICE O’CONNOR, concurring in the judgment in part and dissenting in part.
I agree with THE CHIEF JUSTICE that respondent’s claim of disability should be evaluated on an individualized basis and that she has not proved that her asymptomatic HIV status substantially limited one or more of her major life activities. In my view, the act of giving birth to a child, while a very important part of the lives of many women, is not generally the same as the representative major life activities of all persons-“caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working”-listed in regulations relevant to the Americans with Disabilities Act of 1990. See 45 CFR § 84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997). Based on that conclusion, there is no need to address whether other aspects of intimate or family relationships not raised in this case could constitute major life activities; nor is there reason to consider whether HIV status would impose a substantiallimitation on one’s ability to reproduce if reproduction were a major life activity.
I join in Part II of THE CHIEF JUSTICE’S opinion concurring in the judgment in part and dissenting in part, which concludes that the Court of Appeals failed to properly determine whether respondent’s condition posed a direct threat. Accordingly, I agree that a remand is necessary on that issue.
JUSTICE O’CONNOR delivered the opinion of the Court. This case presents the question whether the Double Jeopardy Clause, which we have found applicable in the capital sentencing context, seeBullingtonv.Missouri,451 U. S. 430(1981), extends to noncapital sentencing proceedings. We hold that it does not, and accordingly affirm the judgment of the California Supreme Court.
I
Petitioner was charged under California law with one count of using a minor to sell marijuana, Cal. Health & Safety Code Ann. § 11361(a) (West 1991), one count of sale or transportation of marijuana, § 11360(a), and one count of possession of marijuana for sale, § 11359. In the information, the State also notified petitioner that it would seek to prove two sentence enhancement allegations: that petitioner had previously been convicted of assault and that he had served a prison term for that offense, see Cal. Penal Code Ann. §§ 245(a)(1), 667(e)(1), and 667.5 (West Supp. 1998).
Under California’s “three-strikes” law, a defendant convicted of a felony who has two qualifying prior convictions for “serious felonies” receives a minimum sentence of 25 years to life; when the instant conviction was preceded by one serious felony offense, the court doubles a defendant’s term of imprisonment. §§ 667(d)(1) and (e)(1)-(2). An assault conviction qualifies as a serious felony if the defendant either inflicted great bodily injury on another person or per
W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mike Fisher
JUSTICE O’CONNOR delivered the opinion of the Court. Section 8(a)(3) of the National Labor Relations Act (NLRA), 49 Stat. 452, as added, 61 Stat. 140, 29 U. S. C. § 158(a)(3), permits unions and employers to negotiate an agreement that requires union “membership” as a condition of employment for all employees. We have interpreted a proviso to this language to mean that the only “membership” that a union can require is the payment of fees and dues,NLRBv.General Motors Corp.,373 U. S. 734, 742 (1963), and we have held that § 8(a)(3) allows unions to collect and expend funds over the objection of nonmembers only to the extent they are used for collective bargaining, contract administration, and grievance adjustment activities,Communications Workersv.Beck,487 U. S. 735, 745, 762-763 (1988). In this case, we must determine whether a union breaches its duty of fair representation when it negotiates a union security clause that tracks the language of § 8(a)(3) without explaining, in the agreement, this Court’s interpretation of that language. We conclude that it does not.
We are also asked to review the Court of Appeals’ decision that the District Court did not have jurisdiction to decide a claim that a union breached the duty of fair representation by negotiating a clause that was inconsistent with the statute. We conclude that because this challenge to the union security clause was based purely on an alleged inconsistency with the statute, the Court of Appeals correctly held that