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.
Filters
JUSTICE O’CONNOR, concurring in the judgment.
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.
Washington v. Texas, 388 U. S. 14, 388 U. S. 19 (1967). In short, the right to compulsory process is essential to a fair trial. Today’s decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a “plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense.” Ante at 458 U. S. 873. A preferable approach would be to accommodate both the Government’s interest in prompt deportation of illegal aliens and the defendant’s need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation.
I
One cannot discount the importance of the Federal Government’s role in the regulation of immigration. [ Footnote 2/1 ] As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, have decided that prompt deportation
JUSTICE O’CONNOR delivered the opinion of the Court.
Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent’s subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to “enter” the United States could be litigated only in a deportation hearing, and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing.
I
Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March, 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, concurring in part and dissenting in part.
I concur in the judgment that the Socialist Workers Party (SWP) has sufficiently demonstrated a reasonable probability that disclosure of contributors will subject those persons to threats, harassment, or reprisals, and thus, under Buckley v. Valeo, 424 U. S. 1 (1976), the State of Ohio cannot constitutionally compel the disclosure. Further, I agree that the broad concerns of Buckley apply to the required disclosure of recipients of campaign expenditures. But, as I view the record presented here, the SWP has failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals. Moreover, the strong public interest in fair and honest elections outweighs any damage done to the associational rights of the party and its members by application of the State’s expenditure disclosure law.
I
Buckley upheld the validity of the Federal Election Campaign Act of 1971, which requires the disclosure of names of both contributors to a campaign and recipients of expenditures from the campaign. Buckley recognized three major governmental interests in disclosure requirements: deterrence of corruption; enhancement of voters’ knowledge about a candidate’s possible allegiances and interests; and provision of the data and means necessary to detect
JUSTICE O’CONNOR, with whom JUSTICE POWELL joins, concurring in the judgment.
The doctrine of prior appropriation includes the requirement that the appropriator’s use of water be beneficial and reasonable. What is reasonable, of course, does not admit of ready definition, being dependent upon the particular facts and circumstances of each case. In this case, the Special Master has cast an accusatory finger at the Vermejo Conservancy District, concluding that “[t]he system of canals used to transport the water to the fields is inefficient.” Report of Special Master 8.
Undoubtedly, there is evidence in the record indicating that large losses of water occur through seepage and evaporation in transporting waters of the Vermejo through open ditches for irrigation and stock watering. Tr. 1315. It is a leap, however, from observing that large losses occur to concluding, as Colorado would have the Court do, that the practices of the Conservancy District are wasteful or unreasonable. As the Court observes, ante at 459 U. S. 185, the extent of the duty to conserve that may be placed upon the user is limited to measures that are “financially and physically feasible,” Wyoming v. Colorado, 259 U. S. 419, 259 U. S. 484 (1922), and “within practicable limits.” Ibid. [ Footnote 2/1 ] Nevertheless, in concluding that the Conservancy District’s distribution system is “inefficient,” the Special Master made no factual finding that improved economy in that system is within the practicable means
JUSTICE O’CONNOR delivered the opinion of the Court.
In 1972, Congress amended the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. (part 2) 1424, as amended, 33 U.S.C. § 901 et seq. (1976 ed. and Supp. V) (hereinafter LHWCA or Act). Before 1972, LHWCA coverage extended only to injuries sustained on the actual “navigable waters of the United States (including any dry dock).” 44 Stat. (part 2) 1426. As part of its 1972 Amendments of the Act, Congress expanded the “navigable waters” situs to include certain adjoining land areas, § 3(a), 86 Stat. 1251, 33 U.S.C. § 903(a). At the same time, Congress added a status requirement that employees covered by the Act must be “engaged in maritime employment” within the meaning of § 2(3) of the Act. [ Footnote 1 ] We granted certiorari in this case, 455 U.S. 937 (1982), to consider whether a marine construction worker, who was injured while performing his job upon actual navigable waters, [ Footnote 2 ] and who would have been covered by the Act before 1972, is “engaged in maritime employment,” and thus covered by the amended Act. [ Footnote 3 ] We hold that the worker is “engaged in maritime employment” for purposes of coverage under the amended LHWCA. Accordingly, we reverse the decision below.
I
The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 136th and 145th Streets
JUSTICE O’CONNOR, dissenting.
I agree with the Court that the National Labor Relations Board (NLRB) could reasonably determine in this case that reimbursing the petitioner is not necessary to effectuate the objectives of the National Labor Relations Act (Act). My disagreement is with the Court’s conclusion that the Board provided an adequate explanation for its decision. The Board offered three reasons for its conclusion that reimbursing the petitioner would not effectuate the purposes of the Act. Each of its stated reasons was in error or inadequate to justify its conclusion. I would therefore remand the case to the Board in order to give it an opportunity to determine the appropriateness of reimbursement in light of the Court’s Opinion.
I
A brief review of the facts is useful in understanding the inadequacy of the Board’s explanation for its decision.
For over a decade, there has been a dispute between respondent Building Material and Dump Truck Drivers, Teamsters Local 36 (Union), and respondent California Dump Truck Owners Association (Association) over the availability of hauling jobs for nonunion truck operators. In June, 1977, three contractors’ associations, which are respondents in this case (Contractors), entered into a new master labor agreement (Agreement) with the Union which required signatory contractors to transport “all materials… to or from or on the site of the work by workmen furnished by the appropriate craft [union]….” App. 10. The Agreement also
JUSTICE O’CONNOR delivered the opinion of the Court.
Schmerber v. California, 384 U. S. 757 (1966), held that a State could force a defendant to submit to a blood alcohol test without violating the defendant’s Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, supra, at 384 U. S. 765, n. 9, and hold that the admission into evidence of a defendant’s refusal to submit to such a test likewise does not offend the right against self-incrimination.
I
Two Madison, South Dakota, police officers stopped respondent’s car after they saw him fail to stop at a stop sign. The officers asked respondent for his driver’s license and asked him to get out of the car. As he left the car, respondent staggered and fell against the car to support himself. The officers smelled alcohol on his breath. Respondent did not have a driver’s license, and informed the officers that it was revoked after a previous driving-while-intoxicated conviction. The officers asked respondent to touch his finger to his nose and to walk a straight line. When respondent failed these field sobriety tests, he was placed under arrest and read his Miranda rights. [ Footnote 1 ] Respondent acknowledged that he understood his rights and agreed to talk without a lawyer present. App. 11. Reading from a printed card, the officers then asked respondent to submit to a blood alcohol test and warned him that he could lose his license if he refused. [ Footnote 2 ] Respondent refused to
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN, JUSTICE REHNQUIST, and JUSTICE STEVENS join, dissenting.
The issue that confronts the Court is one of statutory construction: whether the Robinson-Patman Act covers purchases of commodities by state and local governments for resale in competition with private retailers. [ Footnote 2/1 ] The Court’s task, therefore, is to discern the intent of the 1936 Congress which enacted the Robinson-Patman Act. I do not agree with the majority that this issue can be resolved by reference to cases under the Sherman Act or other statutes, or by reliance on the broad remedial purposes of the antitrust laws generally. The 1936 Congress simply did not focus on this issue. The business and legal communities have assumed for the past four decades that such purchases are not covered. For these reasons, as explained more fully below, I respectfully dissent.
I
A
The majority relies extensively on the interpretation this Court has given to the term “person” under the Sherman Act and other statutes as a guide to whether the terms “person” and “purchasers,” as used in § 2 of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act (Act), 49 Stat. 1526, 15 U.S.C. § 13, include state and local governmental entities. See ante at 460 U. S. 155 -156. In my view, such reliance is misplaced. The question of the Robinson-Patman Act’s treatment of governmental purchases requires an independent examination of the legislative history of that Act to ascertain
JUSTICE O’CONNOR delivered the opinion of the Court.
These consolidated cases present the question of the applicability of the tax benefit rule to two corporate tax situations: the repayment to the shareholders of taxes for which they were liable, but that were originally paid by the corporation, and the distribution of expensed assets in a corporate liquidation. We conclude that, unless a nonrecognition provision of the Internal Revenue Code prevents it, the tax benefit rule ordinarily applies to require the inclusion of income when events occur that are fundamentally inconsistent with an earlier deduction. Our examination of the provisions granting the deductions and governing the liquidation in these cases leads us to hold that the rule requires the recognition of income in the case of the liquidation, but not in the case of the tax refund.
I
In No. 81-485, Hillsboro National Bank v. Commissioner, the petitioner, Hillsboro National Bank, is an incorporated bank doing business in Illinois. Until 1970, Illinois imposed a property tax on shares held in incorporated banks. Ill.Rev.Stat., ch. 120, § 557 (1971). Banks, required to retain earnings sufficient to cover the taxes, § 558, customarily paid the taxes for the shareholders. Under § 164(e) of the Internal Revenue Code of 1954, 26 U.S.C. § 164(e), [ Footnote 1 ] the bank was allowed a deduction for the amount of the tax, but the shareholders were not. In 1970, Illinois amended its Constitution to prohibit ad valorem taxation
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, concurring in part and dissenting in part.
I agree with the Court that gubernatorial consent is required for the acquisition of wetlands easements, that the required consent was given in this case, and that North Dakota may not simply revoke its consent at will. I disagree with the Court, however, in its holding that the United States acquired its easements pursuant to the consents within a reasonable time as a matter of law. I would remand this case in order to allow the lower courts an opportunity to determine whether the Federal Government delayed unreasonably in making its acquisitions. Because I would remand, and because I believe that the Court decides another issue that is not properly before the Court, I dissent in part.
First, in its brief, the Government concedes that
Congress must have assumed that the Secretary would be able to rely on the continued effectiveness – at least for a reasonable period of time -of gubernatorial consents.
Brief for United States 26 (emphasis added). [ Footnote 2/1 ] The Government’s concession on this point reflects the position, correct in my view, that Congress did not intend that gubernatorial consents, once given, could never be withdrawn even if the United States failed to acquire its easements within a reasonable time. Although there is virtually no legislative history concerning the consent provision in 16 U.S.C. 715k-5, the provision represents an attempt to give to the
JUSTICE O’CONNOR delivered the opinion of the Court.*
This case presents the question of a State’s power to impose a special tax on the press and, by enacting exemptions, to limit its effect to only a few newspapers.
I
Since 1967, Minnesota has imposed a sales tax on most sales of goods for a price in excess of a nominal sum. [ Footnote 1 ] Act of June 1, 1967, ch. 32, Art. XIII, § 2, 1967 Minn. Laws 2143, 2179, codified at Minn.Stat. § 297A.02 (1982). In general, the tax applies only to retail sales. Ibid. An exemption for industrial and agricultural users shields from the tax sales of components to be used in the production of goods that will themselves be sold at retail. § 297A.25(1)(h). As part of this general system of taxation and in support of the sales tax, see Minn.Code of Agency Rules, Tax S & U 300 (1979), Minnesota also enacted a tax on the “privilege of using, storing or consuming in Minnesota tangible personal property.” This use tax applies to any nonexempt tangible personal property unless the sales tax was paid on the sales price. Minn.Stat. § 297A.14 (1982). Like the classic use tax, this use tax protects the State’s sales tax by eliminating the residents’ incentive to travel to States with lower sales taxes to buy goods, rather than buying them in Minnesota. §§ 297A.14, 297A.24.
The appellant, Minneapolis Star & Tribune Co., “Star Tribune,” is the publisher of a morning newspaper and an evening newspaper (until 1982) in Minneapolis. From 1967 until 1971,
JUSTICE O’CONNOR delivered the opinion of the Court.
The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price [ Footnote 1 ] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor’s records of direct costs, but not records of indirect costs.
I
In 1973, Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans’ Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising. [ Footnote 2 ] The pharmaceutical products supplied under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts.
As required by 10 U.S.C. § 2313(b) and 65 Stat. 700, 41 U.S.C. § 254(c), [ Footnote 3
JUSTICE O’CONNOR, dissenting.
Although I agree with the result reached in JUSTICE REHNQUIST’s dissent, I write separately because I cannot agree with the approach taken by either the Court or JUSTICE REHNQUIST. Both opinions engage in exhaustive, but ultimately unilluminating, exegesis of the common law of the availability of punitive damages in 1871. Although both the Court and JUSTICE REHNQUIST display admirable skills in legal research and analysis of great numbers of musty cases, the results do not significantly further the goal of the inquiry: to establish the intent of the 42d Congress. In interpreting § 1983, we have often looked to the common law as it existed in 1871, in the belief that, when Congress was silent on a point, it intended to adopt the principles of the common law with which it was familiar. See, e.g., 453 U. S. Fact Concerts, Inc., 453 U. S. 247, 453 U. S. 258 (1981); Carey v. Piphus, 435 U. S. 247, 435 U. S. 255 (1978). This approach makes sense when there was a generally prevailing rule of common law, for then it is reasonable to assume that Congressmen were familiar with that rule and imagined that it would cover the cause of action that they were creating. But when a significant split in authority existed, it strains credulity to argue that Congress simply assumed that one view, rather than the other, would govern. Particularly in a case like this one, in which those interpreting the common law of 1871 must resort to dictionaries in an attempt to translate
JUSTICE O’CONNOR, Circuit Justice.
Under Rule 44.4, the Justices of this Court will not entertain an application for a stay unless the applicant has first sought relief from the appropriate lower court or courts, except “in the most extraordinary circumstances.” I conclude that this case presents most extraordinary circumstances and will therefore entertain the application and grant a stay.
The applicant is a German corporation that is defending an action in the Michigan state courts. The plaintiffs in that action seek to depose a number of employees of the applicant, all of whom reside in the Federal Republic of Germany. Attempting to prevent the depositions in the trial court, the applicant argued that the method the plaintiffs sought to employ violated the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, [1972] 23 U. S. T. 2555, T. I. A. S. 7444, a treaty to which the United States and the Federal Republic of Germany are parties. See Department of State, Treaties in Force 249 (1983). The trial court denied the motion, and the Michigan Court of Appeals denied leave to appeal. The applicant then sought review in the Michigan Supreme Court. Meanwhile, the trial court ordered that the depositions take place on or before August 30, 1982, and the plaintiffs filed notice to take the depositions on August 24, 1982. The applicant then applied to the Michigan Supreme Court for an emergency stay of the order and for immediate consideration of the order.
JUSTICE O’CONNOR delivered the opinion of the Court.
This appeal presents a facial challenge to a criminal statute that requires persons who loiter or wander on the streets to provide a “credible and reliable” identification and to account for their presence when requested by a peace officer under circumstances that would justify a stop under the standards of Terry v. Ohio, 392 U. S. 1 (1968). [ Footnote 1 ] We conclude that the statute as it has been construed is unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a “credible and reliable” identification. Accordingly, we affirm the judgment of the court below.
I
Appellee Edward Lawson was detained or arrested on approximately 15 occasions between March, 1975, and January, 1977, pursuant to Cal.Penal Code Ann. § 647(e) (West 1970). [ Footnote 2 ] Lawson was prosecuted only twice, and was convicted once. The second charge was dismissed.
Lawson then brought a civil action in the District Court for the Southern District of California seeking a declaratory judgment that § 647(e) is unconstitutional, a mandatory injunction to restrain enforcement of the statute, and compensatory and punitive damages against the various officers who detained him. The District Court found that § 647(e) was overbroad because “a person who is stopped on less than probable cause cannot be punished for failing to identify
JUSTICE O’CONNOR, dissenting.
I agree with the Court that the sole remedy available to North Dakota is an action under the Quiet Title Act. Having concluded that Congress has permitted such suits, though, I would not reject the usual rule that statutes of limitation do not bar a sovereign, a rule that is especially appropriate in the context of these cases. Consequently, I dissent.
Since the Quiet Title Act is the sole relief available to North Dakota, we confront the question whether Congress intended the statute of limitations to bar actions by States. The Court resolves the question by invocation of the principle that waivers of sovereign immunity are to be strictly construed. See ante at 461 U. S. 287. [ Footnote 2/1 ] The question is not that simple.
Although it is indeed true that the Court construes waivers of sovereign immunity strictly, that principle of statutory construction is no more than an aid in the task of determining congressional intent. In a close case, it may help the Court choose between two equally plausible constructions. It cannot, however, grant the Court authority to narrow judicially the waiver that Congress intended. United States v. Kubrick, 444 U. S. 111, 444 U. S. 118 (1979); Indian Towing Co. v. United States, 350 U. S. 61, 350 U. S. 69 (1955). The mere observation that a statute waives sovereign immunity, then, cannot resolve questions of construction. The Court still must consider all indicia of congressional intent. Considering all the evidence,
JUSTICE O’CONNOR, concurring.
I concur in the opinion of the Court, accepting the view of the Commissioner. I do not, however, endorse the Commissioner’s view. Indeed, were we writing on a slate clean except for the decision in Crane v. Commissioner, 331 U. S. 1 (1947), I would take quite a different approach -that urged upon us by Professor Barnett as amicus.
Crane established that a taxpayer could treat property as entirely his own, in spite of the “coinvestment” provided by his mortgagee in the form of a nonrecourse loan. That is, the full basis of the property, with all its tax consequences, belongs to the mortgagor. That rule alone, though, does not in any way tie nonrecourse debt to the cost of property or to the proceeds upon disposition. I see no reason to treat the purchase, ownership, and eventual disposition of property differently because the taxpayer also takes out a mortgage, an independent transaction. In this case, the taxpayer purchased property, using nonrecourse financing, and sold it after it declined in value to a buyer who assumed the mortgage. There is no economic difference between the events in this case and a case in which the taxpayer buys property with cash; later obtains a nonrecourse loan by pledging the property as security; still later, using cash on hand, buys off the mortgage for the market value of the devalued property; and finally sells the property to a third party for its market value.
The logical way to treat both this case and the hypothesiz
JUSTICE O’CONNOR delivered the opinion of the Court.
United States Customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. The question in this case is whether the Government’s 18-month delay in filing a civil proceeding for forfeiture of the currency violates the claimant’s right to due process of law. We conclude that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. Applying the Barker test to the circumstances of this case, we find no unreasonable delay.
I
A
Section 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31 U.S.C. § 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount being transported. Congress has authorized the Government to seize and forfeit any monetary instruments for which a required report was not filed. 31 U.S.C. § 1102(a). Since the Bank Secrecy Act does not specify the procedures to be followed in seizing monetary instruments, the Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U.S.C. § 1602 et seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest
JUSTICE O’CONNOR delivered the opinion of the Court.
The question in this case is whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution. Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist. We therefore reverse the judgment of the Georgia Court of Appeals upholding the revocation of probation, and remand for a new sentencing determination.
I
In September, 1980, petitioner was indicted for the felonies of burglary and theft by receiving stolen property. He pleaded guilty, and was sentenced on October 8, 1980. Pursuant to the Georgia First Offender’s Act, Ga.Code Ann. § 27-2727 et seq. (current version at § 42-8-60 et seq. (Supp.1982)), the trial court did not enter a judgment of guilt, but deferred further proceedings and sentenced petitioner to three years on probation for the burglary charge and a concurrent one year on probation for the theft charge. As a condition of probation, the trial court
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case, we consider both the rights of the Federal Government when a State misuses funds advanced as part of a federal grant-in-aid program under Title I of the Elementary and Secondary Education Act and the manner in which the Government may assert those rights. We hold that the Federal Government may recover misused funds, that the Department of Education may determine administratively the amount of the debt, and that the State may seek judicial review of the agency’s determination.
I
The respondents, New Jersey and Pennsylvania, received grants from the Federal Government under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 2701 et seq. (1976 ed., Supp. V). Title I created a program designed to improve the educational opportunities available to disadvantaged children. § 102, 20 U.S.C. § 2702 (1976 ed., Supp. V). Local educational agencies obtain federal grants through state educational agencies, which in turn obtain grants from the Department of Education [ Footnote 1 ] upon providing assurances to the Secretary that the local educational agencies will spend the funds only on qualifying programs. § 182(a), 20 U.S.C. § 2832(a) (1976 ed., Supp. V). [ Footnote 2 ] In auditing New Jersey for the period September 1, 1970, through August, 1973, and Pennsylvania for the period July 1, 1967, through June 30, 1973, to ensure compliance with ESEA and
JUSTICE O’CONNOR delivered the opinion of the Court.
Section 102(2)(C) of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U.S.C. § 4332(2)(C) (NEPA), requires federal agencies to consider the environmental impact of any major federal action. [ Footnote 1 ] As part of its generic rulemaking proceedings to evaluate the environmental effects of the nuclear fuel cycle for nuclear powerplants, the Nuclear Regulatory Commission (Commission) [ Footnote 2 ] decided that licensing boards should assume, for purposes of NEPA, that the permanent storage of certain nuclear wastes would have no significant environmental impact, and thus should not affect the decision whether to license a particular nuclear powerplant. We conclude that the Commission complied with NEPA, and that its decision is not arbitrary or capricious within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. [ Footnote 3 ]
I
The environmental impact of operating a light-water nuclear powerplant [ Footnote 4 ]includes the effects of off-site activities necessary to provide fuel for the plant (“front end” activities), and of off-site activities necessary to dispose of the highly toxic and long-lived nuclear wastes generated by the plant (“back end” activities). The dispute in these cases concerns the Commission’s adoption of a series of generic rules to evaluate the environmental effects of a nuclear powerplant’s fuel cycle. At the heart of each rule is Table S-3, a numerical
JUSTICE O’CONNOR, dissenting.
As the Court recognizes, “resort to state law [is] the norm for borrowing of limitations periods.” Ante at 462 U. S. 171. When federal law is silent on the question of limitations, we borrow state law in the belief that, given our longstanding practice and congressional awareness of it, we can safely assume, in the absence of strong indications to the contrary, that Congress intends by its silence that we follow the usual rule. [ Footnote 3/1 ] In Auto Workers v. Hoosier Cardinal Corp., 383 U. S. 696 (1966), we applied the “norm” to a suit under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. I see no reason in these cases to depart from our usual practice of borrowing state law, for we have no contrary indications strong enough to outweigh our ordinary presumption that Congress’ silence indicates a desire that we follow the ordinary rule. As a result, I would look to state law for a limitations period. For the reasons given by JUSTICE STEVENS in his separate opinion in United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 451 U. S. 72 -74 (1981), I think that a malpractice action against an attorney provides the closest analogy to an employee’s suit against his union for breach of the duty of fair representation, and I would apply the State’s statute of limitations for such an action here. In DelCostello’s action against his employer, I, like JUSTICE STEVENS, would follow Mitchell. [ Footnote 3/2 ]
Notes
[ Footnote 3/1 ]
I believe,
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.
For reasons stated in my dissent in Akron v. Akron Center for Reproductive Health, ante p. 462 U. S. 416, I believe that the second trimester hospitalization requirement imposed by § 188.025 does not impose an undue burden on the limited right to undergo an abortion. Assuming, arguendo, that the requirement was an undue burden, it would nevertheless “reasonably relat[e] to the preservation and protection of maternal health.” Roe v. Wade, 410 U. S. 113, 410 U. S. 163 (1973). I therefore dissent from the Court’s judgment that the requirement is unconstitutional.
I agree that the second physician requirement contained in § 188.030.3 is constitutional because the State possesses a compelling interest in protecting and preserving fetal life, but I believe that this state interest is extant throughout pregnancy. I therefore concur in the judgment of the Court.
I agree that the pathology report requirement imposed by § 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion. Because I do not believe that the validity of this requirement is contingent in any way on the trimester of pregnancy in which it is imposed, I concur in the judgment of the Court.
Assuming, arguendo, that the State cannot impose a parental veto on the decision of a minor to undergo an abortion, I agree that the parental consent provision
JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, dissenting.
In Roe v. Wade, 410 U. S. 113 (1973), the Court held that the
right of privacy… founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action… is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.
Id. at 410 U. S. 153. The parties in these cases have not asked the Court to reexamine the validity of that holding, and the court below did not address it. Accordingly, the Court does not reexamine its previous holding. Nonetheless, it is apparent from the Court’s opinion that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the “stages” of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs. The Court’s analysis of the Akron regulations is inconsistent both with the methods of analysis employed in previous cases dealing with abortion, and with the Court’s approach to fundamental rights in other areas.
Our recent cases indicate that a regulation imposed on “a lawful abortion is not unconstitutional unless it unduly burdens the right to seek an abortion.'” Maher v. Roe, 432 U. S. 464, 432 U. S. 473 (1977) (quoting Bellotti v. Baird, 428 U. S. 132, 428 U. S.
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
I join the opinion of the Court except to the extent that it might be read to suggest this Court’s endorsement of the view that one who makes a reasonably diligent effort to record will obtain the protections ordinarily reserved for recorded interests. I would express no opinion on that question, for it is not before us, and has not been addressed in brief or in argument or, indeed, in the statute.