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.
Rule 52(b) of the Federal Rules of Criminal Procedure permits a criminal conviction to be overturned on direct appeal for “plain error” in the jury instructions, even if the defendant failed to object to the erroneous instructions before the jury retired, as required by Rule 30. In this case, we are asked to decide whether the same standard of review applies on a collateral challenge to a criminal conviction brought under 28 U.S.C. § 2255.
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Joseph Frady, the respondent, does not dispute that, 19 years ago, he and Richard Gordon killed Thomas Bennett in the front room of the victim’s house in Washington, D.C. Nonetheless, because the resolution of this case depends on what the jury learned about Frady’s crime, we must briefly recount what happened, as told by the witnesses at Frady’s trial and summarized by the Court of Appeals. See Frady v. United States, 121 U.S.App.D.C. 78, 348 F.2d 84 (en banc) ( Frady I ), cert. denied, 382 U.S. 909 (1965).
The events leading up to the killing began at about 4:30 p.m. on March 13, 1963, when two women saw Frady drive slowly by Bennett’s house in an old car. Later, at about 7:00 p.m., Frady, accompanied by Richard Gordon and Gordon’s friend, Elizabeth Ryder, returned to the same block. On this second trip, Ryder overheard Frady say “something about that is the house over there,” at which point Frady and Gordon looked in the direction of the victim’s house.
After reconnoitering Bennett’s
JUSTICE O’CONNOR delivered the opinion of the Court.
In Wainwright v. Sykes, 433 U. S. 72 (1977), we held that a state prisoner, barred by procedural default from raising a constitutional claim on direct appeal, could not litigate that claim in a § 2254 habeas corpus [ Footnote 1 ] proceeding without showing cause for, and actual prejudice from, the default. Applying the principle of Sykes to these cases, we conclude that respondents, who failed to comply with an Ohio rule mandating contemporaneous objections to jury instructions, may not challenge the constitutionality of those instructions in a federal habeas proceeding.
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Respondents’ claims rest in part on recent changes in Ohio criminal law. For over a century, the Ohio courts required criminal defendants to carry the burden of proving self-defense by a preponderance of the evidence. See State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973); Szalkai v. State, 96 Ohio St. 36, 117 N.E. 12 (1917); Silvus v. State, 22 Ohio St. 90 (1872). A new criminal code, effective January 1, 1974, subjected all affirmative defenses to the following rule:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.
Ohio Rev.Code Ann. § 2901.05(A) (1975). For more than two years after its enactment, most Ohio courts assumed that this section worked
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.
Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court’s result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.
At a minimum, the Fourteenth Amendment requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 314 (1950). The question before the Court is whether the notice provided by Kentucky’s statute meets this standard. In answering that question, the first “circumstances” to be considered are the nature and purpose of the action for which notice is required.
Kentucky’s forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky.Rev.Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances
JUSTICE O’CONNOR, with whom JUSTICE MARSHALL joins, dissenting.
Justice Frankfurter once explained the limits of statutory construction as follows:
[T]he courts are not at large…. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition, certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature…. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction…. * * * *” [T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 533, 535 (1947).
The Court does not approach this case in that spirit. Instead, it redrafts the statutory phrase “investigatory records compiled for law enforcement purposes” to exempt investigatory records that “were not compiled for law enforcement purposes,” ante at 456 U. S. 623 (emphasis added). [ Footnote 2/1 ] Unfortunately,
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.
I agree with the Court that the Commerce Clause supported Congress’ enactment of the Public Utility Regulatory Policies Act of 1978, Pub.L. 95-617, 92 Stat. 3117 (PURPA). I disagree, however, with much of the Court’s Tenth Amendment analysis. Titles I and III of PURPA conscript state utility commissions into the national bureaucratic army. This result is contrary to the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), antithetical to the values of federalism, and inconsistent with our constitutional history. Accordingly, I dissent from Parts 456 U. S. S. 770|>IV-C of the Court’s opinion. [ Footnote 3/1 ]
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Titles I and III of PURPA require state regulatory agencies to decide whether to adopt a dozen federal standards governing gas and electric utilities. [ Footnote 3/2 ] The statute describes, in some detail, the procedures state authorities must follow when evaluating these standards, [ Footnote 3/3 ] but does not compel the States to adopt the suggested federal standards. 15 U.S.C. § 3203(a) (1976 ed., Supp. IV); 16 U.S.C. §§ 2621 (a), 2623(a), 2627(b) (1976 ed., Supp. IV). The latter, deceptively generous feature of PURPA persuades the Court that the statute does not intrude impermissibly into state sovereign functions. The Court’s conclusion, however, rests upon a fundamental misunderstanding of the role that state
JUSTICE O’CONNOR delivered the opinion of the Court.
This action requires us to consider the circumstances under which a manufacturer of a generic drug, designed to duplicate the appearance of a similar drug marketed by a competitor under a registered trademark, can be held vicariously liable for infringement of that trademark by pharmacists who dispense the generic drug.
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In 1955, respondent Ives Laboratories, Inc. (Ives), received a patent on the drug cyclandelate, a vasodilator used in long-term therapy for peripheral and cerebral vascular diseases. Until its patent expired in 1972, Ives retained the exclusive right to make and sell the drug, which it did under the registered trademark CYCLOSPASMOL. [ Footnote 1 ] Ives marketed the drug, a white powder, to wholesalers, retail pharmacists, and hospitals in colored gelatin capsules. Ives arbitrarily selected a blue capsule, imprinted with “Ives 4124,” for its 200 mg dosage and a combination blue-red capsule, imprinted with “Ives 4148,” for its 400 mg dosage.
After Ives’ patent expired, several generic drug manufacturers, including petitioners Premo Pharmaceutical Laboratories, Inc., Inwood Laboratories, Inc., and MD Pharmaceutical Co., Inc. (collectively the generic manufacturers), began marketing cyclandelate. [ Footnote 2 ] They intentionally copied the appearance of the CYCLOSPASMOL capsules, selling cyclandelate in 200 mg and 400 mg capsules in colors identical to those selected by Ives. [ Footnote 3 ]
The marketing
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to decide whether the Double Jeopardy Clause [ Footnote 1 ] bars retrial after a state appellate court sets aside a conviction on the ground that the verdict was against “the weight of the evidence.” After examining the policies supporting the Double Jeopardy Clause, we hold that a reversal based on the weight, rather than the sufficiency, of the evidence permits the State to initiate a new prosecution.
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In 1974, Florida indicted petitioner Delbert Tibbs for the first-degree murder of Terry Milroy, the felony murder of Milroy, and the rape of Cynthia Nadeau. Nadeau, the State’s chief trial witness, testified that she and Milroy were hitchhiking from St. Petersburg to Marathon, Fla., on February 3, 1974. A man in a green truck picked them up near Fort Myers and, after driving a short way, turned off the highway into a field. He asked Milroy to help him siphon gas from some farm machinery, and Milroy agreed. W hen Nadeau stepped out of the truck a few minutes later, she discovered the driver holding a gun on Milroy. The driver told Milroy that he wished to have sex with Nadeau, and ordered her to strip. After forcing Nadeau to engage in sodomy, the driver agreed that Milroy could leave. As Milroy started to walk away, however, the assailant shot him in the shoulder. When Milroy fell to the ground, pleading for his life, the gunman walked over and taunted, “Does it hurt, boy? You in pain? Does it hurt,
JUSTICE O’CONNOR, concurring in the judgment.
The Court strikes Alaska’s distribution scheme, purporting to rely solely upon the Equal Protection Clause of the Fourteenth Amendment. The phrase “right to travel” appears only fleetingly in the Court’s analysis, dismissed with an observation that “right to travel analysis refers to little more than a particular application of equal protection analysis.” Ante at 457 U. S. 60, n. 6. The Court’s reluctance to rely explicitly on a right to travel is odd, because its holding depends on the assumption that Alaska’s desire “to reward citizens for past contributions… is not a legitimate state purpose.” Ante at 457 U. S. 63. Nothing in the Equal Protection Clause itself, however, declares this objective illegitimate. Instead, as a full reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals, the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.
I respectfully suggest, therefore, that the Court misdirects its criticism when it labels Alaska’s objective illegitimate. A desire to compensate citizens for their prior contributions is neither inherently invidious nor irrational. Under some circumstances, the objective may be wholly reasonable. [ Footnote 3/1 ] Even a generalized desire to reward citizens for past endurance, particularly in a State where years of hardship only recently have produced prosperity, is not
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to decide whether a state court may order implementation of a change in election procedure over objections that the change is subject to preclearance under § 5 of the Voting Rights Act of 1965. [ Footnote 1 ]
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Since 1960, the Louisville School District has been coextensive with Winston County, Miss. Until last December, the Louisville mayor and city aldermen appointed three of the five members of the District’s Board of Trustees, and Winston County voters residing outside Louisville elected the other two members.
In 1964, the Mississippi Legislature enacted a statute providing in part:
The boards of trustees of all municipal separate school districts, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five (5) years, but so chosen that the term of office of one (1) member shall expire each year…. [I]n any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one (1) trustee shall be elected from each supervisors district.
1964 Miss. Gen. Laws, ch. 391, p. 563, codified, as amended, in Miss.Code Ann. § 37-7-203(1)(Supp.1981). Winston County is the only Mississippi county in which Highways 14 and 15 intersect. Officials in that county never implemented § 37-7-203(1), because they believed the statute’s reference to Highways 14 and 15 violated a state constitutional prohibition
JUSTICE O’CONNOR delivered the opinion of the Court.
The principal question presented by the parties to these appeals is whether certain state and federal statutes violate the Establishment and Free Exercise Clauses of the First Amendment [ Footnote 1 ] by requiring religious schools unaffiliated with any church to pay unemployment insurance taxes. We do not reach this substantive question, however, holding instead that the Tax Injunction Act, 28 U.S.C. § 1341, [ Footnote 2 ] deprived the District Court of jurisdiction to hear these challenges. Accordingly, we vacate the judgment below.
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Last Term, in St. Martin Evangelical Lutheran Church v. South Dakota, 451 U. S. 772 (1981), this Court considered statutory and constitutional challenges to provisions of the Federal Unemployment Tax Act (FUTA), 26 U.S.C. §§ 3301-3311 (1976 ed. and Supp. IV). Because the present claims involve the same provisions that we interpreted in St. Martin, we recount only briefly the substance and legislative history of the relevant statutes before turning to the facts in the present cases.
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In FUTA, [ Footnote 3 ] Congress has authorized a cooperative federal-state scheme to provide benefits to unemployed workers. The Act requires employers to pay an excise tax on wages paid to employees in “covered” employment, [ Footnote 4 ] but entitles them to a credit of up to 90% of the federal tax for contributions they have paid into federally approved state unemployment compensation programs. [ Footnote
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, concurring.
As discussed in JUSTICE POWELL’s dissenting opinion, as well as in the opinion of the court below, considerations of sound policy suggest that a § 1983 plaintiff should be required to exhaust adequate state administrative remedies before filing his complaint. At the very least, prior state administrative proceedings would resolve many claims, thereby decreasing the number of § 1983 actions filed in the federal courts, which are now straining under excessive caseloads. However, for the reasons set forth in the Court’s opinion, this Court already has ruled that, in the absence of additional congressional legislation, exhaustion of administrative remedies is not required in § 1983 actions. Perhaps Congress’ enactment of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1976 ed., Supp. IV), which creates a limited exhaustion requirement for prisoners bringing § 1983 suits, will prompt it to reconsider the possibility of requiring exhaustion in the remainder of § 1983 cases. Reluctantly, I concur.
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.
The Court holds today that Omar Taylor’s detailed confession was the fruit of an illegal arrest, and consequently, should be suppressed. Because I conclude that neither the facts nor the law supports the Court’s analysis, I respectfully dissent.
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In the course of their investigation of the Moseley robbery, Montgomery police questioned Charles Martin, who was being held on unrelated rape and robbery charges. Martin stated that “he had heard that Omar Taylor was involved in the robbery of Moseley’s Grocery,” Tr. 6, but the police made no attempt to establish either Martin’s credibility as an informant or the reliability of the information he provided. [ Footnote 2/1 ]
Based only on this tip, which did not provide probable cause, Sergeants Alford and Rutland arrested Taylor a little before 3 p.m. on January 4, 1979. At that time, they told him why he was being arrested and advised him of his Miranda rights, but asked him no questions regarding the robbery. Tr. 20, 24. When they arrived at the police station, the officers turned Taylor over to detectives.
After Taylor had been fingerprinted and signed a form acknowledging his Miranda rights, Detective Wilson questioned him for about 15 minutes, Tr. 48, and placed him in a lineup before one of the victims, Mrs. Moseley. Id. at 37-38. At the lineup, which lasted about an hour, id. at 48, Mrs. Moseley was unable to identify the
JUSTICE O’CONNOR, concurring in the judgment.
In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980), the Court held that the First Amendment protects the right of press and public to attend criminal trials. I do not interpret that decision to shelter every right that is “necessary to the enjoyment of other First Amendment rights.” Ante at 457 U. S. 604. Instead, Richmond Newspapers rests upon our long history of open criminal trials and the special value, for both public and accused, of that openness. As the plurality opinion in Richmond Newspapers stresses,
it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.
448 U.S. at 448 U. S. 575. Thus, I interpret neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.
This case, however, does involve a criminal trial. Moreover, it involves a statute mandating automatic exclusion of the public from certain testimony. As the Court explains, Massachusetts has demonstrated no interest weighty enough to justify application of its automatic bar to all cases, even those in which the victim, defendant, and prosecutor have no objection to an open trial. Accordingly, I concur in the judgment.
JUSTICE O’CONNOR, concurring in part.
I agree with the Court that the case is not moot, and that portions of the Illinois Business Take-Over Act, Ill.Rev.Stat., ch. 121 1/2, 137.51 et seq. (1979), are invalid under the Commerce Clause. Because it is not necessary to reach the preemption issue, I join only Parts I, II, and V of the Court’s opinion, and would affirm the judgment of the Court of Appeals on that basis.
JUSTICE O’CONNOR, concurring in the judgment.
Based on the legislative history of the Norris-La Guardia Act, 29 U.S.C. § 101 et seq., and our previous cases interpreting it, e.g., New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552 (1938), the Court correctly concludes that this case involves a labor dispute within the meaning of § 4 of the Act, 29 U.S.C. § 104. The Court also correctly determines that, under Buffalo Forge Co. v. Steelworkers, 428 U. S. 397 (1976), no injunction may issue pending arbitration because the underlying political dispute is not arbitrable under the collective bargaining agreement. Unless the Court is willing to overrule Buffalo Forge, the conclusion reached by the Court in this case is inescapable. Therefore, I concur in the judgment.
JUSTICE O’CONNOR, dissenting.
If the school board can set the curriculum, select teachers, and determine initially what books to purchase for the school library, it surely can decide which books to discontinue or remove from the school library, so long as it does not also interfere with the right of students to read the material and to discuss it. As JUSTICE REHNQUIST persuasively argues, the plurality’s analysis overlooks the fact that, in this case, the government is acting in its special role as educator.
I do not personally agree with the Board’s action with respect to some of the books in question here, but it is not the function of the courts to make the decisions that have been properly relegated to the elected members of school boards. It is the school board that must determine educational suitability, and it has done so in this case. I therefore join THE CHIEF JUSTICE’s dissent.
JUSTICE O’CONNOR, concurring.
I join in the Court’s opinion, but write separately to emphasize that the authority of the Federal Home Loan Bank Board to preempt state laws is not limitless. * Although Congress delegated broad power to the Board to ensure that federally chartered savings and loan institutions “would remain financially sound,” ante at 458 U. S. 168, it is clear that HOLA does not permit the Board to preempt the application of all state and local laws to such institutions. Nothing in the language of § 5(a) of HOLA, which empowers the Board to “provide for the organization, incorporation, examination, operation, and regulation” of federally chartered savings and loans, remotely suggests that Congress intended to permit the Board to displace local laws, such as tax statutes and zoning ordinances, not directly related to savings and loan practices. Accordingly, in my view, nothing in the Court’s opinion should be read to the contrary.
Notes
* At one point in today’s opinion, the Court states that “we need not decide whether the HOLA or the Board’s regulations occupy… the entire field of federal savings and loan regulation.” Ante at 458 U. S. 159, n. 14.
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the question whether an employer charged with discrimination in hiring can toll the continuing accrual of backpay liability under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), simply by unconditionally offering the claimant the job previously denied, or whether the employer also must offer seniority retroactive to the date of the alleged discrimination. [ Footnote 1 ]
The question has considerable practical significance because of the lengthy delays that too often attend Title VII litigation. [ Footnote 2 ] The extended time it frequently takes to obtain satisfaction in the courts may force a discrimination claimant to suffer through years of underemployment or unemployment before being awarded the job the claimant deserves. Court delays, of course, affect all litigants. But for the victim of job discrimination, delay is especially unfortunate. The claimant cannot afford to stand aside while the wheels of justice grind slowly toward the ultimate resolution of the lawsuit. The claimant needs work that will feed a family and restore self-respect. A job is needed -now. In this case, therefore, we must determine how best to fashion the remedies available under Title VII to fulfill this basic need.
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In June and July, 1971, Judy Gaddis, Rebecca Starr, and Zettie Smith applied at a Ford Motor Co. (Ford) parts warehouse located in Charlotte, N.C., for jobs as “picker-packers,” “picking” ordered parts from
JUSTICE O’CONNOR, concurring in part and dissenting in part.
I concur in the Court’s opinion insofar as it holds that the State may not charge out-of-state tuition to nonimmigrant aliens who, under federal law, are exempt from both state and federal taxes, and who are domiciled in the State. Imposition of out-of-state tuition on such aliens conflicts with federal law exempting them from state taxes, since, after all, the University admits that it seeks to charge the higher tuition in order to recover costs that state income taxes normally would cover.
I cannot join the remainder of the Court’s opinion, however, for it wholly fails to address the criticisms leveled in JUSTICE REHNQUIST’s dissenting opinion. As JUSTICE REHNQUIST makes clear, the class of G-4 aliens is not homogenous: some G-4 aliens are exempt under federal law from state taxes, while other G-4 aliens are not. Moreover, the legislative history of § 4(b) of the International Organizations Immunities Act, later reenacted as § 893 of the Internal Revenue Code of 1954, 26 U.S.C. § 893, from which many G-4 aliens derive their federal tax immunity, demonstrates that Congress did not intend to exempt such aliens from state taxes, choosing instead to leave the matter to the state and local authorities. Thus, I disagree with the Court when it states that the “State may not recoup indirectly from respondents’ parents the taxes that the Federal Government has expressly barred the State from collecting,” ante at 458 U. S.
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
The $39.9 million in dividend income at issue in this case was earned by four foreign subsidiaries of F. W. Woolworth Co.: F. W. Woolworth GmbH (Germany), F. W. Woolworth, Ltd. (Canada), F. W. Woolworth, S. A. de C. V. Mexico (Mexico), and F. W. Woolworth Co., Ltd. (England). F. W. Woolworth Co. wholly owned its German, Canadian, and Mexican subsidiaries, and had a 52.7% interest in its English subsidiary. During the tax year in question, the subsidiaries apparently operated somewhat autonomously in their respective markets, but “mail, telephone, and teletype communication between the upper echelons of management of the parent and the subsidiaries” was ” frequent.'” Ante at 458 U. S. 368 (footnote omitted) (quoting App. to Juris.Statement 34a). Moreover,
[d]ecisions about major financial decisions, such as the amount of dividends to be paid by the subsidiaries and the creation of substantial debt, had to be approved by the parent,
and “Woolworth’s published financial statements, such as its annual reports, were prepared on a consolidated basis.” Ante at 458 U. S. 368 -39 (citations and footnotes omitted).
These controlled subsidiaries, operating in geographically diverse markets in the same line of business as F. W. Woolworth itself, were simply not “unrelated,” [ Footnote 2/1 ] “discrete business enterprise[s],” [ Footnote 2/2 ] “hav[ing] nothing to do with the activities” [ Footnote 2/3
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.
The Court today declares that the Due Process Clause of the Constitution forbids a State to tax a proportionate share of the investment income of a nondomiciliary corporation doing business within its borders. In so doing, the Court groundlessly strikes down the eminently reasonable assertion of Idaho’s taxing power at issue in this case. Far more dismaying, however, is that the Court’s reliance on the Due Process Clause may deprive Congress of the authority necessary to rationalize the joint taxation of interstate commerce by the 50 States.
Today, the taxpayer wins. Yet in the end, today’s decision may prove to be a loss for all concerned -interstate businesses themselves, which the Commerce Clause guarantees the opportunity to serve the country’s needs unimpeded by a parochial hodgepodge of overlapping and conflicting tax levies; the Nation, which demands a prosperous interstate market; and the States, which deserve fair return for the advantages they afford interstate enterprise. For while this Court has the authority to invalidate a specific state tax, only Congress has both the ability to canvass the myriad facts and factors relevant to interstate taxation and the power to shape a nationwide system that would guarantee the States fair revenues and offer interstate businesses freedom from strangulation by multiple paperwork and tax burdens. Unfortunately, by apparently stripping Congress
JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, concurring.
I concur in the Court’s opinion today holding that a cause of action based on 42 U.S.C. § 1981 requires proof of intent to discriminate, that the employers cannot be held vicariously liable for the discrimination practiced by Local 542, and that § 1981 does not impose a “nondelegable duty” on the employers to insure that there is no discrimination in the Union’s selection of the workforce. I write separately, however, in order to state expressly one of the options open to the District Court on remand, and to elaborate on the Court’s comments regarding the scope of the federal courts’ equitable power to afford full relief.
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In determining that the petitioners cannot be held vicariously liable for the discriminatory conduct of the JATC, the Court is careful to note that its holding is based on the failure of the trial court to make “findings regarding the relationship between the JATC and petitioners… that might support application of respondeat superior. ” Ante at 458 U. S. 394. [ Footnote 2/1 ] In particular, because the record contains no findings regarding whether the employers maintain some control over the activities of the JATC, either through the employer-appointed trustees or through other means, the doctrine of respondeat superior is simply inapplicable.
I would briefly note the limits of the Court’s holding. Once this case has been remanded to the District Court, nothing in the Court’s opinion prevents
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the narrow issue of whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment.
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The facts are not in dispute. In 1884, the Mississippi Legislature created the Mississippi Industrial Institute and College for the Education of White Girls of the State of Mississippi, now the oldest state-supported all-female college in the United States. 1884 Miss.Gen.Laws, Ch. 30, § 6. The school, known today as Mississippi University for Women (MUW), has from its inception limited its enrollment to women. [ Footnote 1 ]
In 1971, MUW established a School of Nursing, initially offering a 2-year associate degree. Three years later, the school instituted a 4-year baccalaureate program in nursing, and today also offers a graduate program. The School of Nursing has its own faculty and administrative officers, and establishes its own criteria for admission. [ Footnote 2 ]
Respondent, Joe Hogan, is a registered nurse but does not hold a baccalaureate degree in nursing. Since 1974, he has worked as a nursing supervisor in a medical center in Columbus, the city in which MUW is located. In 1979, Hogan applied for admission to the MUW School of Nursing’s baccalaureate program. [ Footnote 3 ] Although he was otherwise qualified, he was denied admission to the School of Nursing solely because of his sex. School officials
JUSTICE O’CONNOR, concurring.
Although I join the Court’s opinion, I write separately to stress that the Court does not hold that New York must except “material with serious literary, scientific, or educational value,” ante at 458 U. S. 766, from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York’s current statute is not sufficiently overbroad to support respondent’s facial attack. The compelling interests identified in today’s opinion, see ante at 458 U. S. 756 -764, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while masturbating surely suffers the same psychological harm whether the community labels the photograph “edifying” or “tasteless.” The audience’s appreciation of the depiction is simply irrelevant to New York’s asserted interest in protecting children from psychological, emotional, and mental harm.
An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York’s statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the “portrayal[s] somewhat more realistic’ by utilizing or photographing
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, dissenting.
Today the Court holds that the Eighth Amendment prohibits a State from executing a convicted felony murderer. I dissent from this holding not only because I believe that it is not supported by the analysis in our previous cases, but also because today’s holding interferes with state criteria for assessing legal guilt by recasting intent as a matter of federal constitutional law.
I
The evidence at trial showed that, at approximately 7:30 a.m. on April 1, 1975, Sampson and Jeanette Armstrong approached the back door of Thomas and Eunice Kersey’s farmhouse on the pretext of obtaining water for their overheated car. [ Footnote 2/1 ] When Thomas Kersey retrieved a water jug to help the Armstrongs, Sampson Armstrong grabbed him, held a gun to him, and told Jeanette Armstrong to take his wallet. Hearing her husband’s cries for help, Eunice Kersey came around the side of the house with a gun and shot Jeanette Armstrong. Sampson Armstrong, and perhaps Jeanette Armstrong, returned the fire, killing both of the Kerseys. [ Footnote 2/2 ] The Armstrongs dragged the bodies into the kitchen, took Thomas Kersey’s money, and fled to a nearby car, where the petitioner, Earl Enmund, was waiting to help the Armstrongs escape. Record 1348-1351. [ Footnote 2/3 ]
Ida Jean Shaw [ Footnote 2/4 ] testified that, on March 31, the petitioner and the two Armstrongs were staying at her house. When she