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.
We granted certiorari in this case, 467 U.S. 1203 (1984), to determine whether police officers may stop and briefly detain a person who is the subject of a “wanted flyer” while they attempt to find out whether an arrest warrant has been issued. We conclude that such stops are consistent with the Fourth Amendment under appropriate circumstances.
I
On December 4, 1981, two armed men robbed a tavern in the Cincinnati suburb of St. Bernard, Ohio. Six days later, a St. Bernard police officer, Kenneth Davis, interviewed an informant who passed along information that respondent Thomas Hensley had driven the getaway car during the armed robbery. Officer Davis obtained a written statement from the informant and immediately issued a “wanted flyer” to other police departments in the Cincinnati metropolitan area.
The flyer twice stated that Hensley was wanted for investigation of an aggravated robbery. It described both Hensley and the date and location of the alleged robbery, and asked other departments to pick up and hold Hensley for the St. Bernard police in the event he were located. The flyer also warned other departments to use caution and to consider Hensley armed and dangerous.
The St. Bernard Police Department’s “wanted flyer” was received by teletype in the headquarters of the Covington Police Department on December 10, 1981. Covington is a Kentucky suburb of Cincinnati that is approximately five miles from St. Bernard.
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.
Today the Court holds that the merger of a stock savings and loan association into a mutual savings and loan association does not qualify as a tax-deferred reorganization under § 368(a)(1)(A) of the Internal Revenue Code. Although the merger meets all the statutory requirements, and although all courts that considered similar transactions before this case found they qualified as tax-deferred reorganizations, see ante at 469 U. S. 132 -133, and n., the Court nevertheless concludes that such a merger fails to qualify under a refined interpretation of the judicially imposed “continuity-of-interest” doctrine. This holding introduces an unfortunate and unnecessary element of uncertainty into an area of our income tax laws where clear and consistent precedent is particularly helpful to both taxpayers and tax collectors. Because I find the Court’s holding unwise as a matter of policy and unwarranted as a matter of law, I respectfully dissent.
The Court concedes that the merger of Commerce Savings and Loan Association of Tacoma, Wash. (Commerce), into Citizens Federal Savings and Loan Association of Seattle (Citizens) met the literal terms of the Internal Revenue Code to qualify the merger for treatment as a tax-deferred reorganization. Ante at 469 U. S. 135. Indeed, the merger between Commerce and Citizens satisfies the statutory definition of a reorganization in § 368(a)(1)(A), and the Citizens mutual share accounts
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case we consider whether an action to enjoin the infringement of an incontestable trade or service mark may be defended on the grounds that the mark is merely descriptive. We conclude that neither the language of the relevant statutes nor the legislative history supports such a defense.
I
Petitioner operates long-term parking lots near airports. After starting business in St. Louis in 1967, petitioner subsequently opened facilities in Cleveland, Houston, Boston, Memphis, and San Francisco. Petitioner applied in 1969 to the United States Patent and Trademark Office (Patent Office) to register a service mark consisting of the logo of an airplane and the words “Park ‘N Fly.” [ Footnote 1 ] The registration issued in August 1971. Nearly six years later, petitioner filed an affidavit with the Patent Office to establish the incontestable status of the mark. [ Footnote 2 ] As required by § 15 of the Trademark Act of 1946 (Lanham Act), 60 Stat. 433, as amended, 15 U.S.C. § 1065, the affidavit stated that the mark had been registered and in continuous use for five consecutive years, that there had been no final adverse decision to petitioner’s claim of ownership or right to registration, and that no proceedings involving such rights were pending. Incontestable status provides, subject to the provisions of § 15 and § 33(b) of the Lanham Act, “conclusive evidence of the registrant’s exclusive right to use the registered mark….”
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion and agree with its holding that the cleanup order has been reduced to a monetary obligation dischargeable as a “claim” under § 727 of the Bankruptcy Code. I write separately to address the petitioner’s concern that the Court’s action will impede States in enforcing their environmental laws.
To say that Kovacs’ obligation in these circumstances is a claim dischargeable in bankruptcy does not wholly excuse the obligation or leave the State without any recourse against Kovacs’ assets to enforce the order. Because “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” Butner v. United States, 440 U. S. 48, 440 U. S. 54 (1979), the classification of Ohio’s interest as either a lien on the property itself, a perfected security interest, or merely an unsecured claim depends on Ohio law. That classification -a question not before us -generally determines the priority of the State’s claim to the assets of the estate relative to other creditors. Cf. 11 U.S.C. § 545 (trustee may avoid statutory liens only in specified circumstances). Thus, a State may protect its interest in the enforcement of its environmental laws by giving cleanup judgments the status of statutory liens or secured claims.
The Court’s holding that the cleanup order was a “claim” within the meaning of § 101(4) also avoids potentially adverse consequences for a State’s enforcement of its order when
JUSTICE O’CONNOR delivered the opinion of the Court.
In United States v. Ross, 456 U. S. 798 (1982), the Court held that, if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any containers found inside that may conceal the object of the search. The issue in the present case is whether Ross authorizes a warrantless search of packages several days after they were removed from vehicles that police officers had probable cause to believe contained contraband. Although the Court of Appeals for the Ninth Circuit acknowledged that under Ross the police officers could have searched the packages when they were first discovered in the vehicles, the court concluded that the delay after the initial seizure made the subsequent warrantless search unreasonable within the meaning of the Fourth Amendment. 707 F.2d 1093 (1983). We granted certiorari, 467 U.S. 1250 (1984), and we now reverse.
I
Pursuant to an investigation of a suspected drug smuggling operation, a United States Customs officer went to respondent Duarte’s residence in Tucson, Ariz., where he saw two pickup trucks. The Customs officer observed the trucks drive away, and he contacted other officers who conducted ground and air surveillance of the trucks as they traveled 100 miles to a remote private airstrip near Bowie, Ariz., approximately 50 miles from the Mexican border. Soon after the trucks arrived, a small aircraft landed. Although the Customs officers on the
JUSTICE O’CONNOR, with whom JUSTICE POWELL and JUSTICE REHNQUIST join, dissenting.
The Court today surveys the battle scene of federalism and sounds a retreat. Like JUSTICE POWELL, I would prefer to hold the field and, at the very least, render a little aid to the wounded. I join JUSTICE POWELL’s opinion. I also write separately to note my fundamental disagreement with the majority’s views of federalism and the duty of this Court.
The Court overrules National League of Cities v. Usery, 426 U. S. 833 (1976), on the grounds that it is not “faithful to the role of federalism in a democratic society.” Ante at 469 U. S. 546. “The essence of our federal system,” the Court concludes,
is that, within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal….
Ibid. National League of Cities is held to be inconsistent with this narrow view of federalism because it attempts to protect only those fundamental aspects of state sovereignty that are essential to the States’ separate and independent existence, rather than protecting all state activities “equally.”
In my view, federalism cannot be reduced to the weak “essence” distilled by the majority today. There is more to federalism than the nature of the constraints that can be imposed on the States in “the realm of authority left open to them by the Constitution.” The central issue of federalism, of course, is whether
JUSTICE O’CONNOR, dissenting.
I join Parts I, II, and III of JUSTICE MARSHALL’s dissent. They accurately demonstrate that the Court’s interpretation of § 301(1) of the Clean Water Act, 33 U.S.C. § 1311(1), is inconsistent with the language of the statute and its legislative history. In my opinion, this alone is sufficient grounds for affirming the judgment of the Court of Appeals. I express no view as to Part IV of the dissent, because I think it is not necessary to the disposition of these cases.
JUSTICE O’CONNOR delivered the opinion of the Court.
This case concerns the preclusive effect of a state court judgment in a subsequent lawsuit involving federal antitrust claims within the exclusive jurisdiction of the federal courts. The Court of Appeals for the Seventh Circuit, sitting en banc, held as a matter of federal law that the earlier state court judgments barred the federal antitrust suit. 726 F.2d 1150 (1984). Under 28 U.S.C. § 1738, a federal court generally is required to consider first the law of the State in which the judgment was rendered to determine its preclusive effect. Because the lower courts did not consider state preclusion law in this case, we reverse and remand.
I
Petitioners are board-certified orthopaedic surgeons who applied for membership in respondent American Academy of Orthopaedic Surgeons (Academy). Respondent denied the membership applications without providing a hearing or a statement of reasons. In November, 1976, petitioner Dr. Treister filed suit in the Circuit Court of Cook County, State of Illinois, alleging that the denial of membership in the Academy violated associational rights protected by Illinois common law. Petitioner Dr. Marrese separately filed a similar action in state court. Neither petitioner alleged a violation of state antitrust law in his state court action; nor did either petitioner contemporaneously file a federal antitrust suit. The Illinois Appellate Court ultimately held that Dr. Treister’s complaint failed to
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari, 465 U.S. 1078 (1984), and we now reverse.
I
In December, 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff’s Office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room, where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that
JUSTICE O’CONNOR delivered the opinion of the Court.
Article 17 of the Warsaw Convention [ Footnote 1 ] makes air carriers liable for injuries sustained by a passenger
if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
We granted certiorari, 469 U.S. 815 (1984), to resolve a conflict among the Courts of Appeals as to the proper definition of the word “accident” as used in this international air carriage treaty.
I
On November 16, 1980, respondent Valerie Saks boarded an Air France jetliner in Paris for a 12-hour flight to Los Angeles. The flight went smoothly in all respects until, as the aircraft descended to Los Angeles, Saks felt severe pressure and pain in her left ear. The pain continued after the plane landed, but Saks disembarked without informing any Air France crew member or employee of her ailment. Five days later, Saks consulted a doctor, who concluded that she had become permanently deaf in her left ear.
Saks filed suit against Air France in California state court, alleging that her hearing loss was caused by negligent maintenance and operation of the jetliner’s pressurization system. App. 2. The case was removed to the United States District Court for the Central District of California. After extensive discovery, Air France moved for summary judgment on the ground that respondent could not prove that her injury was caused by an “accident” within the meaning
JUSTICE O’CONNOR delivered the opinion of the Court.
The issue presented is whether substantive provisions of the 1978 Amendments to Title I of the Elementary and Secondary Education Act apply retroactively for determining if Title I funds were misused during the years 1970-1972. This case was previously before the Court, and we then held that the Federal Government may recover misused funds from States that provided assurances that federal grants would be spent only on eligible programs. Bell v. New Jersey, 461 U. S. 773 (1983). We expressly declined, however, to address the retroactive effect of substantive provisions of the 1978 Amendments. Id. at 461 U. S. 781, n. 6, 461 U. S. 782, and n. 7. On remand from our decision, the Court of Appeals for the Third Circuit held that the standards of the 1978 Amendments should apply to determine if funds were improperly expended in previous years. State of New Jersey, Dept. of Ed. v. Hufstedler, 724 F.2d 34 (1983). We granted certiorari, 469 U.S. 815 (1984), and we now reverse.
I
Title I of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 241a et seq. (1976 ed.), provided federal grants-in-aid to support compensatory education for disadvantaged children in low-income areas. [ Footnote 1 ] Based on the theory that poverty and low scholastic achievement are closely related, Title I allocated funds to local school districts based on their numbers of impoverished children and the State’s
JUSTICE O’CONNOR delivered the opinion of the Court.*
This case, like Bennett v. New Jersey, ante p. 470 U. S. 632, concerns an effort by the Federal Government to recover Title I funds that were allegedly misused by a State. There is no contention here that changes in statutory provisions should apply to previous grants. Instead, the dispute is whether the Secretary correctly demanded repayment based on a determination that Kentucky violated requirements that Title I funds be used to supplement, and not to supplant, state and local expenditures for education. Although the Court of Appeals for the Sixth Circuit found that the Secretary’s determination was based on a reasonable interpretation of Title I and its implementing regulations, the court nonetheless excused the State from repayment on the grounds that there was no evidence of bad faith and the State’s programs complied with a reasonable interpretation of the law. Kentucky v. Secretary of Education, 717 F.2d 943, 948 (1983). We granted certiorari, 469 U.S. 814 (1984), and because we disagree with the standard adopted by the Court of Appeals, we reverse.
I
As explained more fully in Bennett v. New Jersey, ante at 470 U. S. 634 -636, Title I of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 2701 et seq., provided federal grants to support compensatory education programs for disadvantaged children. In order to assure that federal funds would be used to support additional
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE REHNQUIST join, dissenting.
This case presents a simple question: is it legitimate for a State to use its taxing power to promote a domestic insurance industry and to encourage capital investment within its borders? In a holding that can only be characterized as astonishing, the Court determines that these purposes are illegitimate. This holding is unsupported by precedent and subtly distorts the constitutional balance, threatening the freedom of both state and federal legislative bodies to fashion appropriate classifications in economic legislation. Because I disagree with both the Court’s method of analysis and its conclusion, I respectfully dissent.
I
Alabama’s legislature has chosen to impose a higher tax on out-of-state insurance companies and insurance companies incorporated in Alabama that do not maintain their principal place of business or invest assets within the State. Ala.Code § 27-4-4 et seq. (1975). This tax seeks to promote both a domestic insurance industry and capital investment in Alabama. App. to Juris. Statement 20a-21a. Metropolitan Life Insurance Company, joined by many other out-of-state insurers, alleges that this discrimination violates its rights under the Equal Protection Clause of the Fourteenth Amendment, which provides that a State shall not “deny to any person within its jurisdiction the equal protection of the laws.” Appellants rely on the Equal Protection Clause because,
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.
The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to
[23]
apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority’s balancing of the interests of the suspect and the public interest in effective law enforcement. Ante at 8. Notwithstanding the venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante at 14, 16-17, the majority concludes that Tennessee’s statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the
JUSTICE O’CONNOR, concurring.
I agree that the District Court erred in holding that § 314(c) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744(c), violates due process by creating an “irrebuttable presumption” of abandonment. Whatever the force of Vlandis v. Kline, 412 U. S. 441 (1973), beyond the facts underlying that case, I believe that § 314(c) comports with due process under the analysis of our later decision in Weinberger v. Salfi, 422 U. S. 749 (1975). Because I also believe that the statute does not otherwise violate the Fifth Amendment, and that the District Court erred in its alternative holding that substantial compliance satisfies the filing requirements of § 314 and corresponding regulations, I agree that the judgment below must be reversed. Nonetheless, I share many of the concerns expressed in the dissenting opinions of JUSTICE POWELL and JUSTICE STEVENS. If the facts are as alleged by appellees, allowing the Bureau of Land Management (BLM) to extinguish active mining claims that appellees have owned and worked for more than 20 years would seem both unfair and inconsistent with the purposes underlying FLPMA.
The Government has not disputed that appellees sought in good faith to comply with the statutory deadline. Appellees contend that, in order to meet the requirements of § 314, they contacted the BLM and were informed by agency personnel that they could file the required materials on December 31, 1980. Appellees apparently relied
JUSTICE O’CONNOR, dissenting.
Citing “practical considerations,” the Court today decides to jettison a rule of venerable application and adopt instead one “simple, broad characterization of all § 1983 claims.” Ante at 471 U. S. 272. Characterization of § 1983 claims is, I agree, a matter of federal law. But I see no justification, given our longstanding interpretation of 42 U.S.C. § 1988 and Congress’ awareness of it, for abandoning the rule that courts must identify and apply the statute of limitations of the state claim most closely analogous to the particular § 1983 claim. In declaring that all § 1983 claims, regardless of differences in their essential characteristics, shall be considered most closely analogous to one narrow class of tort, the Court, though purporting to conform to the letter of § 1988, abandons the policies § 1988 embodies. I respectfully dissent.
I
The rule that a federal court adjudicating rights under § 1983 will adopt the state statute of limitations of the most closely analogous state law claim traces its lineage to M’Cluny v. Silliman, 3 Pet. 270 (1830), Campbell v. Haverhill, 155 U. S. 610 (1895), and O’Sullivan v. Felix, 233 U. S. 318 (1914). These opinions held that, where “Congress… could have, by specific provision, prescribed a limitation, but no specific provision [was] adduced,” O’Sullivan v. Felix, supra,at233 U. S. 322, “Congress… intended to subject such action to the general laws of the State applicable to actions of a similar nature”
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to consider to what extent the “fair use” provision of the Copyright Revision Act of 1976 (hereinafter the Copyright Act), 17 U.S.C. § 107, sanctions the unauthorized use of quotations from a public figure’s unpublished manuscript. In March, 1979, an undisclosed source provided The Nation Magazine with the unpublished manuscript of “A Time to Heal: The Autobiography of Gerald R. Ford.” Working directly from the purloined manuscript, an editor of The Nation produced a short piece entitled “The Ford Memoirs -Behind the Nixon Pardon.” The piece was timed to “scoop” an article scheduled shortly to appear in Time Magazine. Time had agreed to purchase the exclusive right to print prepublication excerpts from the copyright holders, Harper & Row Publishers, Inc. (hereinafter Harper & Row), and Reader’s Digest Association, Inc. (hereinafter Reader’s Digest). As a result of The Nation article, Time canceled its agreement. Petitioners brought a successful copyright action against The Nation. On appeal, the Second Circuit reversed the lower court’s finding of infringement, holding that The Nation’s act was sanctioned as a “fair use” of the copyrighted material. We granted certiorari, 467 U.S. 1214 (1984), and we now reverse.
I
In February, 1977, shortly after leaving the White House, former President Gerald R. Ford contracted with petitioners Harper & Row and Reader’s Digest, to publish his as yet unwritten memoirs.
JUSTICE O’CONNOR delivered the opinion of the Court.
In this case, we consider whether the Due Process Clause of the Fourteenth Amendment generally requires a sentencing court to indicate that it has considered alternatives to incarceration before revoking probation. After a hearing, a state judge found that respondent had violated his probation conditions by committing a felony shortly after his original prison sentences were suspended. The judge revoked probation and ordered respondent to begin serving the previously imposed sentences. Nearly six years later, the District Court for the Eastern District of Missouri held that respondent had been denied due process because the record of the revocation hearing did not expressly indicate that the state judge had considered alternatives to imprisonment. The District Court granted a writ of habeas corpus and ordered respondent unconditionally released from custody. 567 F.Supp. 882 (1983). The Court of Appeals for the Eighth Circuit affirmed. 735 F.2d 319 (1984). We granted certiorari, 469 U.S. 1033 (1984), and we now reverse.
I
On November 15, 1976, respondent Nicholas Romano pleaded guilty in the Circuit Court of Laclede County, State of Missouri, to two counts of transferring and selling a controlled substance. The charges resulted from Romano’s attempt to trade 26 pounds of marihuana, which he had harvested, refined, and packaged, for what he thought was opium. App. 15, 27-28, 40. After the Missouri Department of Probation and
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part, concurring in the judgment in part, and dissenting in part.
I join Parts I, II, V, and VI of the Court’s opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer’s use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court’s judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio’s blanket ban. [ Footnote 3/1 ] I dissent from Part III of the Court’s opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio’s rule.
Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed is professional advice. Almost every State restricts an attorney’s ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced
JUSTICE O’CONNOR, concurring.
I agree that, on the facts of this case, the Double Jeopardy Clause does not bar prosecution and sentencing under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise even though Garrett pleaded guilty to one of the predicate offenses in an earlier prosecution. This conclusion is admittedly in tension with certain language in prior opinions of the Court. E.g., Brown v. Ohio, 432 U. S. 161, 432 U. S. 166 (1977). I write separately to explain why I believe that today’s holding comports with the fundamental purpose of the Double Jeopardy Clause and with the method of analysis used in our more recent decisions.
The Double Jeopardy Clause declares: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb….” U.S.Const., Amdt. 5. This constitutional proscription serves primarily to preserve the finality of judgments in criminal prosecutions and to protect the defendant from prosecutorial overreaching. See, e.g., Ohio v. Johnson, 467 U. S. 493, 467 U. S. 498 -499 (1984); United States v. DiFrancesco, 449 U. S. 117, 449 U. S. 128, 449 U. S. 136 (1980). In Green v. United States, 355 U. S. 184 (1957), the Court explained:
The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to
JUSTICE O’CONNOR, concurring in the judgment.
Nothing in the United States Constitution as interpreted by this Court or in the laws of the State of Alabama prohibits public school students from voluntarily praying at any time before, during, or after the schoolday. Alabama has facilitated voluntary silent prayers of students who are so inclined by enacting Ala.Code § 16-1-20 (Supp.1984), which provides a moment of silence in appellees’ schools each day. The parties to these proceedings concede the validity of this enactment. At issue in these appeals is the constitutional validity of an additional and subsequent Alabama statute, Ala.Code § 16-1-20.1 (Supp.1984), which both the District Court and the Court of Appeals concluded was enacted solely to officially encourage prayer during the moment of silence. I agree with the judgment of the Court that, in light of the findings of the courts below and the history of its enactment, § 16-1-20.1 of the Alabama Code violates the Establishment Clause of the First Amendment. In my view, there can be little doubt that the purpose and likely effect of this subsequent enactment is to endorse and sponsor voluntary prayer in the public schools. I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates
JUSTICE O’CONNOR, concurring.
I agree that the state banking statutes at issue here do not violate the Commerce Clause, the Compact Clause, or the Equal Protection Clause. I write separately to note that I see no meaningful distinction for Equal Protection Clause purposes between the Massachusetts and Connecticut statutes we uphold today and the Alabama statute at issue in Metropolitan Life Insurance Co. v. Ward, 470 U. S. 869 (1985).
The Court distinguishes this case from Metropolitan Life on the ground that Massachusetts and Connecticut favor neighboring out-of-state banks over all other out-of-state banks. It is not clear to me why completely barring the banks of 44 States from doing business is less discriminatory than Alabama’s scheme of taxing the insurance companies from 49 States at a slightly higher rate. Nor is it clear why the Equal Protection Clause should tolerate a regional “home team” when it condemns a state “home team.” See id. at 878.
The Court emphasizes that here we do not write on a clean slate, as the business of banking is “of profound local concern.” Ante at 472 U. S. 177. The business of insurance is also of uniquely local concern. Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 328 U. S. 415 -417 (146). Both industries historically have been regulated by the States in recognition of the critical part they play in securing the financial wellbeing of local citizens and businesses. Metropolitan Life Insurance Co. v. Ward, supra, at 470 U. S. 888
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
I join the judgment and the opinion of the Court, with the exception of Part IV-A. I write separately to express my views about the Court’s discussion of California v. Ramos, 463 U. S. 992 (1983), in Part 472 U. S. I do not read Ramos to imply that the giving of nonmisleading and accurate information regarding the jury’s role in the sentencing scheme is irrelevant to the sentencing decision.
The Court distinguishes the prosecutor’s remarks regarding appellate review in this case from the Briggs instruction in Ramos, which informed the jury that the Governor could commute a life sentence without parole. The Court observes that the Briggs instruction in Ramos was
both accurate and relevant to a legitimate state penological interest -that interest being a concern for the future dangerousness of the defendant should he ever return to society.
Ante at 472 U. S. 335. The statement here, the Court concludes, was neither accurate nor relevant. In my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility. I agree there can be no “valid state penological interest” in imparting inaccurate or misleading information that minimizes the importance of the jury’s deliberations in a capital sentencing case. Ante at 472 U. S. 336.
The Court, however, seems generally to characterize information regarding appellate review
JUSTICE O’CONNOR delivered the opinion of the Court.
Last Term, in Flanagan v. United States, 465 U. S. 259 (1984), the Court unanimously held that pretrial orders disqualifying counsel in criminal cases are not subject to immediate appeal under 28 U.S.C. § 1291. In this case, the Court of Appeals for the District of Columbia Circuit held that § 1291 confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. 237 U.S.App.D.C. 333, 737 F.2d 1038 (1984). Because we conclude that orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal, we reverse.
I
Respondent Anne Koller (hereafter respondent) was born without normal arms or legs in a District of Columbia hospital in 1979. She filed suit in the United States District Court for the District of Columbia, alleging that petitioner Richardson-Merrell, Inc., is liable for her birth defects. The complaint alleged that respondent’s mother, Cynthia Koller, had taken the antinausea drug Bendectin during the early stages of her pregnancy, and that the drug had caused Anne Koller’s injuries. Petitioner is the manufacturer of Bendectin.
Respondent was initially represented by Cohen & Kokus, a Miami law firm, and by local counsel in Washington. As discovery progressed into 1981, however, a Los Angeles law firm, Butler, Jefferson, Dan & Allis, took the lead in trial preparation. James G. Butler entered an appearance pro hac vice for respondent on January 26, 1981;
JUSTICE O’CONNOR delivered the opinion of the Court.
This case requires us to decide whether allegedly obscene magazines purchased by undercover officers shortly before the warrantless arrest of a salesclerk must be excluded from evidence at the clerk’s subsequent trial for distribution of obscene materials. Following a jury trial in the Circuit Court of Prince George’s County, Maryland, respondent was convicted of distribution of obscene materials in violation of Md.Ann.Code, Art. 27, § 418 (1982). The Maryland Court of Special Appeals reversed the conviction and ordered the charges dismissed on the ground that the magazines were improperly admitted in evidence. 57 Md.App. 705, 471 A.2d 1090 (1984). The Maryland Court of Appeals denied certiorari. 300 Md. 795, 481 A.2d 240 (1984). We granted certiorari, 469 U.S. 1156 (1985), to resolve a conflict among the state courts on the question whether a purchase of allegedly obscene matter by an undercover police officer constitutes a seizure under the Fourth Amendment. Finding that it does not, we reverse.
I
On May 6, 1981, three Prince George’s County police detectives went to the Silver News, Inc., an adult bookstore in Hyattsville, Maryland, as part of a police investigation of adult bookstores in the area. One of the detectives, who was not in uniform, entered the store, browsed for several minutes, and purchased two magazines from a clerk, Baxter Macon, with a marked $50 bill. The detective left the store and showed the two