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 part and concurring in the judgment.
This case requires us to define and apply the standard required by the Equal Protection Clause when a governmental agency agrees to give preferences on the basis of race or national origin in making layoffs of employees. The specific question posed is, as JUSTICE MARSHALL puts it,
whether the Constitution prohibits a union and a local school board from developing a collective bargaining agreement that apportions layoffs between two racially determined groups as a means of preserving the effects of an affirmative hiring policy.
Post at 476 U. S. 300 (dissenting). There is no issue here of the interpretation and application of Title VII of the Civil Rights Act of 1964; accordingly, we have only the constitutional issue to resolve.
The Equal Protection Clause standard applicable to racial classifications that work to the disadvantage of “nonminorities” has been articulated in various ways. See, e.g., post at 476 U. S. 301 -302 (MARSHALL, J., dissenting). JUSTICE POWELL now would require that: (1) the racial classification be justified by a ” compelling governmental interest,'” and (2) the means chosen by the State to effectuate its purpose be “narrowly tailored.” Ante at 476 U. S. 274. This standard reflects the belief, apparently held by all Members of this Court, that racial classifications of any sort must be subjected to “strict scrutiny,” however defined. See, e.g., Fullilove v. Klutznick, 448 U. S.
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to consider whether a standby letter of credit backed by a contingent promissory note is insured as a “deposit” under the federal deposit insurance program. We hold that, in light of the longstanding interpretation of petitioner Federal Deposit Insurance Corporation (FDIC) that such a letter does not create a deposit and, in light of the fact that such a letter does not entrust any noncontingent assets to the bank, a standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit.
I
Orion Manufacturing Corporation (Orion) was, at the time of the relevant transactions, a customer of respondent Philadelphia Gear Corporation (Philadelphia Gear). On Orion’s application, the Penn Square Bank, N.A. (Penn Square) issued a letter of credit for the benefit of Philadelphia Gear in the amount of $145,200. The letter of credit provided that a draft drawn upon the letter of credit would be honored by Penn Square only if accompanied by Philadelphia Gear’s “signed statement that [it had] invoiced Orion Manufacturing Corporation and that said invoices have remained unpaid for at least fifteen (15) days.” App. 25. Because the letter of credit was intended to provide payment to the seller only if the buyer of the invoiced goods failed to make payment, the letter of credit was what is commonly referred to as a “standby” or “guaranty” letter of credit. See, e.g., 12 CFR § 337.2(a),
JUSTICE O’CONNOR delivered the opinion of the Court.
Prior to his trial for murder, petitioner moved to suppress his confession. The trial judge conducted a hearing, determined that the confession was voluntary, and denied the motion. At trial, petitioner sought to introduce testimony about the physical and psychological environment in which the confession was obtained. His objective in so doing was to suggest that the statement was unworthy of belief. The trial court ruled that the testimony pertained solely to the issue of voluntariness, and was therefore inadmissible. The question presented is whether this ruling deprived petitioner of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution.
I
On August 7, 1981, a clerk at the Keg Liquor Store in Louisville, Kentucky, was shot to death, apparently during the course of a robbery. A complete absence of identifying physical evidence hampered the initial investigation of the crime. A week later, however, the police arrested petitioner, then 16 years old, for his suspected participation in an unrelated service station holdup. According to police testimony at the suppression hearing, “just out of the clear blue sky,” petitioner began to confess to a host of local crimes, including shooting a police officer, robbing a hardware store, and robbing several individuals at a bowling alley. App. 4. Their curiosity understandably aroused, the police transferred petitioner to a juvenile detention center to continue
JUSTICE O’CONNOR, dissenting.
I fully agree with JUSTICE WHITE’s conclusion that the only question properly before us is whether the Court of Appeals correctly concluded that the Secretary has no power under 29 U.S.C. § 794 to regulate medical treatment decisions concerning handicapped newborn infants. I also agree that application of established principles of statutory construction and of the appropriate standard for judicial review of agency action leads inescapably to the conclusion that the Secretary has the authority to regulate in this area. Because, however, I see no need at this juncture to address the details of the regulations or to assess whether they are sufficiently rational to survive review under 5 U.S.C. § 706 (2)(A), I join only parts 476 U. S. 476 U. S. 476 U. S. and 476 U. S.
JUSTICE O’CONNOR, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and dissenting in part.
I join Parts I and II of THE CHIEF JUSTICE’s opinion, and I would vacate only a portion of the injunction issued by the District Court.
I
I believe that appellees cannot pursue their free exercise claim based solely on the actions of the Government with respect to the use of a Social Security number already in its possession, or with respect to any other identification number the Government may wish to assign and use in connection with its administration of its welfare assistance program. Accordingly, I join Parts 476 U. S. S. 699|>II of THE CHIEF JUSTICE’s opinion, and I would vacate that portion of the District Court’s judgment that enjoins the Government from using or disseminating the Social Security number already assigned to Little Bird of the Snow.
In all, eight Members of the Court believe that the District Court’s injunction was overbroad in preventing the Government from using information already in its possession. See ante at 476 U. S. 699 -701 (opinion of BURGER, C.J., joined by POWELL and REHNQUIST, JJ.); ante at 476 U. S. 716 -717 (STEVENS, J., concurring in part and concurring in the result); ante at 476 U. S. 713 (BLACKMUN, J., concurring in part); supra, this page.
A logical next step on the facts of this case is to consider whether the case is moot. Only two Members of the Court believe that the case is, or may be, moot. See ante at 476 U. S.
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins, dissenting.
This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 452 (1983) (O’CONNOR, J., dissenting). Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but -except when it comes to abortion -the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. See Heckler v. Chaney, 470 U. S. 821, 470 U. S. 838 (1985); id. at 470 U. S. 839 -840, n. 2 (BRENNAN, J., concurring) (differences over the validity of the death penalty under the Eighth Amendment should not influence the Court’s consideration of a question of statutory administrative law). That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade, 410 U. S. 113 (1973).
The
JUSTICE O’CONNOR delivered the opinion of the Court.
Petitioner, Three Affiliated Tribes of the Fort Berthold Reservation, sought to sue respondent, Wold Engineering, P.C. (hereafter respondent), in state court for negligence and breach of contract. The North Dakota Supreme Court held that Chapter 27-19 of the North Dakota Century Code (1974) disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court. It ruled that, under Chapter 27-19, petitioner could not avail itself of state court jurisdiction unless it consented to waive its sovereign immunity and to have any civil disputes in state court to which it is a party adjudicated under state law. 364 N.W.2d 98 (1985). The question presented is whether Chapter 27-19, as construed by the North Dakota Supreme Court, is repugnant to the Federal Constitution or is preempted by federal Indian law.
I
This is the second time this Court has been called upon to address this jurisdictional controversy. See Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 (1984) ( Three Tribes I ). Because the facts and procedural history of the litigation were set forth in some detail in Three Tribes I, our present recitation will be brief.
Historically, Indian territories were generally deemed beyond the legislative and judicial jurisdiction of the state governments. See id. at 467 U. S. 142. This restriction was reflected in the federal statute which admitted
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari in this case to determine whether the Court of Appeals for the District of Columbia Circuit correctly concluded that the Food and Drug Administration’s longstanding interpretation of 21 U.S.C. § 346 was in conflict with the plain language of that provision. 474 U.S. 1018 (1985). We hold that, in light of the inherent ambiguity of the statutory provision and the reasonableness of the Food and Drug Administration’s interpretation thereof, the Court of Appeals erred. We therefore reverse.
I
A
The Food and Drug Administration (FDA) enforces the Federal Food, Drug, and Cosmetic Act (Act) as the designee of the Secretary of Health and Human Services. 21 U.S.C. § 371(a). See also 21 CFR § 5.10 (1986). The Act seeks to ensure the purity of the Nation’s food supply, and accordingly bans “adulterated” food from interstate commerce. 21 U.S.C. § 331(a). Title 21 U.S.C. § 342(a) deems food to be “adulterated”
(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health; or (2)(A) if it bears or contains any added poisonous or added deleterious substance (other than [exceptions not relevant here]) which is unsafe within the meaning of section 346a(a) of this
JUSTICE O’CONNOR delivered the opinion of the Court.
The Nantahala Power & Light Company (Nantahala) and Tapoco, Inc. (Tapoco), are both wholly owned subsidiaries of the Aluminum Company of America (Alcoa). Tapoco and Nantahala each own hydroelectric powerplants on the Little Tennessee River. Almost all of the power that they produce goes to the Tennessee Valley Authority (TVA). In exchange for allowing TVA to pour into its grid the variable quantity of power produced by Tapoco’s and Nantahala’s facilities, Tapoco and Nantahala jointly receive a fixed supply of low-cost “entitlement power” from TVA. In addition, Nantahala buys a variable amount of high-cost “purchased power” from the TVA grid. Tapoco sells all its power to Alcoa; Nantahala serves public customers.
For the purposes of calculating the rate to be charged Nantahala’s retail customers, all of whom are in North Carolina, the Utilities Commission of North Carolina (NCUC) chose an allocation of entitlement and purchased power between Tapoco and Nantahala that differs from the allocation of entitlement power between Tapoco and Nantahala adopted by the Federal Energy Regulatory Commission (FERC) in a wholesale ratemaking proceeding. The North Carolina Supreme Court upheld NCUC’s allocation. We noted probable jurisdiction to decide whether NCUC’s allocation may stand in light of FERC’s ruling. 474 U.S. 1018 (1985). We hold that NCUC’s allocation of entitlement and purchased power is preempted by federal law.
I
A
This
JUSTICE O’CONNOR delivered the opinion of the Court.
Federal law vests in the Secretary of Agriculture the authority to make emergency loans to farmers who suffer economic losses as a result of a natural disaster. See Consolidated Farm and Rural Development Act (Act), §§ 321-330, 75 Stat. 311, as amended, 7 U.S.C. §§ 1961-1971. Pursuant to an agency rule, the Secretary required loan applicants suffering from disasters occurring between December 26, 1972, and April 20, 1973, to file their applications by April 2, 1974. 39 Fed.Reg. 7569 (1974) (later codified at 7 CFR § 1832.82(a) (1975)). That rule embodied a statutory command to keep the loan program open at least until that date. Pub.L. 93-237, 87 Stat. 1025. The question presented is whether a federal court has the remedial authority to reopen this long-terminated loan program on the basis of its finding that the Secretary, in alleged violation of another rule, failed adequately to notify affected farmers of the program’s availability and terms.
I
In early April, 1973, torrential rains struck 13 counties in the northern part of Florida. Initial estimates, which were later sharply reduced, projected that resulting crop and property losses would be in excess of $3 million. In light of the scope of these anticipated losses, on May 26, 1973, President Nixon declared the region a major disaster area. 38 Fed.Reg. 14800 (1973). See Disaster Relief Act of 1970, Pub.L. 91-606, 84 Stat. 1744 (repealed or transferred 1974). As a result
JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, dissenting.
The Court today holds unconstitutional the preference in public employment opportunities New York offers to resident wartime veterans who resided in New York when they entered military service. Because I believe that New York’s veterans’ preference scheme is not constitutionally offensive under the Equal Protection Clause, does not penalize some free-floating “right to migrate,” and does not violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, I dissent.
I
The plurality’s constitutional analysis runs generally as follows: because the classification imposed by New York’s limited, one-time veterans’ civil service preference “penalizes” appellees’ constitutional “right to migrate,” the preference program must be subjected to heightened scrutiny, which it does not survive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength of this reasoning, the plurality concludes that the preference program violates both appellees’ constitutional “right to migrate” and their right to equal protection of the law, see ante at 476 U. S. 911, although it does not make clear how much of its analysis is necessary or sufficient to find a violation of the “right to migrate” independently of an Equal Protection Clause violation.
In pursuing this new dual analysis, the plurality simply rejects the equal protection approach the Court has previously
JUSTICE O’CONNOR delivered the opinion of the Court.
Respondents’ husbands were killed when petitioner Air Logistic’s helicopter, in which the decedents were traveling, crashed into the high seas. The issue presented is whether the Death on the High Seas Act (DOHSA), 41 Stat. 537, 46 U.S.C. § 761 et seq., provides the exclusive remedy by which respondents may recover against petitioner for the wrongful death of their husbands, or whether they may also recover the measure of damages provided by the Louisiana wrongful death statute, La.Civ.Code Ann., Art. 2315 (West Supp.1986), applying either of its own force or as surrogate federal law under the Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, as amended, 43 U.S.C. § 1331 et seq.
I
The husbands of respondents Corrine Taylor and Beth Tallentire worked on drilling platforms in the Gulf of Mexico, off the coast of Louisiana. On August 6, 1980, respondents’ husbands were killed while being transported in a helicopter owned and operated by petitioner Air Logistics (hereafter petitioner), a Division of Offshore Logistics, Inc., from a drilling platform to Houma, Louisiana. The crash occurred approximately 35 miles off the coast of Louisiana, well over the 3-mile limit that separates Louisiana’s territorial waters from the high seas for purposes of DOHSA.
Respondents each filed wrongful death suits in United States District Court, raising claims under DOHSA, OCSLA, and the law of Louisiana. These actions were later consolidated
JUSTICE O’CONNOR, with whom JUSTICE WHITE joins, concurring in the result in part and dissenting in part.
I am in full agreement with JUSTICE REHNQUIST’s conclusion that the Eighth Amendment does not create a substantive right not to be executed while insane. Accordingly, I do not join the Court’s reasoning or opinion. Because, however, the conclusion is for me inescapable that Florida positive law has created a protected liberty interest in avoiding execution while incompetent, and because Florida does not provide even those minimal procedural protections required by due process in this area, I would vacate the judgment and remand to the Court of Appeals with directions that the case be returned to the Florida system so that a hearing can be held in a manner consistent with the requirements of the Due Process Clause. I cannot agree, however, that the federal courts should have any role whatever in the substantive determination of a defendant’s competency to be executed.
As we explained in Hewitt v. Helms, 459 U. S. 460, 459 U. S. 466, (1983),
[l]iberty interests protected by the Fourteenth Amendment may arise from two sources -the Due Process Clause itself and the laws of the States.
See also Meachum v. Fano, 427 U. S. 215, 427 U. S. 223 -227 (1976). With JUSTICE REHNQUIST, I agree that the Due Process Clause does not independently create a protected interest in avoiding the execution of a death sentence during incompetency. See also Solesbee v. Balkcom, 339 U. S. 9 (1960).
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari to decide whether and, if so, under what circumstances, a prosecutor may elicit testimony from a mental health professional concerning the content of an interview conducted to explore the possibility of presenting psychiatric defenses at trial. We also agreed to review the Court of Appeals’ determination that any error in the admission of the psychiatrist’s evidence in this case was irrelevant under the holding of Zant v. Stephens, 462 U. S. 862 (1983). On examination, however, we conclude that petitioner defaulted his underlying constitutional claim by failing to press it before the Supreme Court of Virginia on direct appeal. Accordingly, we decline to address the merits of petitioner’s claims, and affirm the judgment dismissing the petition for a writ of habeas corpus.
I
Following a jury trial, petitioner was convicted of the May, 1977, murder of Audrey Weiler. According to his confession, petitioner encountered Ms. Weiler in a secluded area near his home and raped her at knifepoint. Fearing that her testimony could send him back to prison, he then grabbed her by the neck and choked her until she fell unconscious. When he realized that she was still alive, he dragged her into a nearby river, submerged her head, and repeatedly stabbed her with his knife. A subsequent medical examination indicated that the death was attributable to three clusters of lethal injuries: asphyxia from strangulation, drowning,
JUSTICE O’CONNOR delivered the opinion of the Court.
We granted certiorari in this case to consider whether a federal habeas petitioner can show cause for a procedural default by establishing that competent defense counsel inadvertently failed to raise the substantive claim of error, rather than deliberately withholding it for tactical reasons.
I
Respondent Clifford Carrier was convicted of rape and abduction by a Virginia jury in 1977. Before trial, respondent’s court-appointed counsel moved for discovery of the victim’s statements to police describing “her assailants, the vehicle the assailants were driving, and the location of where the alleged rape took place.” 2 Record 11. The presiding judge denied the motion by letter to counsel after examining the statements in camera and determining that they contained no exculpatory evidence. Id. at 31. Respondent’s counsel made a second motion to discover the victim’s statements immediately prior to trial, which the trial judge denied for the same reason after conducting his own in camera examination. Tr. 151-152.
After respondent was convicted, his counsel filed a notice of appeal to the Virginia Supreme Court assigning seven errors, of which the fifth was:
Did the trial judge err by not permitting defendant’s counsel to examine the written statements of the victim prior to trial, and during the course of the trial?
2 Record 83. Without consulting respondent, counsel subsequently submitted the required petition for appeal,
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in the judgment.
In this case, we are called upon to construe § 2 of the Voting Rights Act of 1965, as amended June 29, 1982. Amended § 2 is intended to codify the “results” test employed in Whitcomb v. Chavis, 403 U. S. 124 (1971), and White v. Regester, 412 U. S. 755 (1973), and to reject the “intent” test propounded in the plurality opinion in Mobile v. Bolden, 446 U.S. 55 (1980). S.Rep. No. 97-417, pp. 27-28 (1982) (hereinafter S.Rep.). Whereas Bolden required members of a racial minority who alleged impairment of their voting strength to prove that the challenged electoral system was created or maintained with a discriminatory purpose and led to discriminatory results, under the results test, “plaintiffs may choose to establish discriminatory results without proving any kind of discriminatory purpose.” S.Rep. at 28. At the same time, however, § 2 unequivocally disclaims the creation of a right to proportional representation. This disclaimer was essential to the compromise that resulted in passage of the amendment. See id. at 193-194 (additional views of Sen. Dole).
In construing this compromise legislation, we must make every effort to be faithful to the balance Congress struck. This is not an easy task. We know that Congress intended to allow vote dilution claims to be brought under § 2, but we also know that Congress did not intend to create a right to proportional representa
JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment.
Today the Court holds that claims of political gerrymandering lodged by members of one of the political parties that make up our two-party system are justiciable under the Equal Protection Clause of the Fourteenth Amendment. Nothing in our precedents compels us to take this step, and there is every reason not to do so. I would hold that the partisan gerrymandering claims of major political parties raise a nonjusticiable political question that the judiciary should leave to the legislative branch, as the Framers of the Constitution unquestionably intended. Accordingly, I would reverse the District Court’s judgment on the grounds that appellees’ claim is nonjusticiable.
There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government. The preservation and health of our political institutions, state and federal, depends to no small extent on the continued vitality of our two-party system, which permits both stability and measured change. The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally
JUSTICE O’CONNOR, concurring.
I join the Court’s opinion. I write separately to emphasize that the Court’s holding is a narrow one. The Court holds that the relief provided in a consent decree need not conform to the limits on court-ordered relief imposed by § 706(g), whatever those limits may be. Rather, the validity of race-conscious relief provided in a consent decree is to be assessed for consistency with the provisions of § 703, such as § 703(a) and § 703(d), which were at issue in Steelworkers v. Weber, 443 U. S. 193 (1979), and, in the case of a public employer, for consistency with the Fourteenth Amendment. As the Court explains, nonminority employees therefore remain free to challenge the race-conscious measures contemplated by a proposed consent decree as violative of their rights under § 703 or the Fourteenth Amendment. Even if nonminority employees do not object to the consent decree, a court should not approve a consent decree that, on its face, provides for racially preferential treatment that would clearly violate § 703 or the Fourteenth Amendment. Finally, the Court refrains from deciding
what showing [an] employer would be required to make concerning prior discrimination on its part against minorities in order to defeat a challenge by nonminority employees based on § 703.
Ante at 478 U. S. 517, n. 8.
It is clear, then, that the Court’s opinion does not hold or otherwise suggest that there is no “necessary predicate for race-conscious practices… favoring
JUSTICE O’CONNOR, concurring in part and dissenting in part.
I join Parts II-A, III, and VI of the Court’s opinion. I would reverse the judgment of the Court of Appeals on statutory grounds insofar as the membership “goal” and the Fund order are concerned, and I would not reach petitioners’ constitutional claims. I agree with JUSTICE WHITE, however, that the membership “goal” in this case operates as a rigid racial quota that cannot feasibly be met through good faith efforts by Local 28. In my view, § 703(j), 42 U.S.C. § 2000e-2(j), and § 706(g), 42 U.S.C. § 2000e-5(g), read together, preclude courts from ordering racial quotas such as this. I therefore dissent from the Court’s judgment insofar as it affirms the use of these mandatory quotas.
In Firefighters v. Stotts, 467 U. S. 561 (1984), the Court interpreted § 706(g) as embodying a policy against court-ordered remedies under Title VII that award racial preferences in employment to individuals who have not been subjected to unlawful discrimination. See id. at 467 U. S. 579 -583. The dissenting opinion in Stotts urged precisely the position advanced by JUSTICE BRENNAN’s plurality opinion today -that any such policy extends only to awarding make-whole relief to particular nonvictims of discrimination, and does not bar class-wide racial preferences in certain cases. Id. at 467 U. S. 612 -614 (BLACKMUN, J., dissenting). The Court unquestionably rejected that view in Stotts. Although technically dicta, the discussion of § 706(g)
JUSTICE O’CONNOR delivered the opinion of the Court.
The question presented is whether the recovery available to a defrauded tax shelter investor, entitled under § 12(2) of the Securities Act of 1933 or § 10(b) of the Securities Exchange Act of 1934 to rescind the fraudulent transaction or obtain rescissory damages, must be reduced by any tax benefits the investor has received from the tax shelter investment.
I
In 1973, petitioners purchased interests in Alotel Associates (Associates), a limited partnership organized by respondent B. J. Loftsgaarden to build and operate a motel in Rochester, Minnesota. Loftsgaarden was the president and sole shareholder of respondent Alotel, Inc. (Alotel), which, together with Loftsgaarden, was to be a general partner in the venture.
Loftsgaarden marketed this $3.5 million project as a “tax shelter,” which would result in ” significantly greater returns for persons in relatively high income tax brackets.'” Austin v. Loftsgaarden, 675 F.2d 168, 173 (CA8 1982) ( Austin I ). As a partnership, Associates would not be taxed as an entity. Rather, its taxable income and losses would pass through to the limited partners, who would then be entitled to claim their individual shares of the partnership’s deductible losses to the extent of their adjusted basis in their partnership interests. 26 U.S.C. § 704(d). Especially attractive from the high-income investor’s perspective was the fact that,
in a real estate investment such as the one contemplated
JUSTICE O’CONNOR, with whom JUSTICE STEVENS joins, concurring.
I agree that the Court of Appeals erred in applying a First Amendment standard of review where, as here, the government is regulating neither speech nor an incidental, nonexpressive effect of speech. Any other conclusion would lead to the absurd result that any government action that had some conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment. If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review. Because there is no suggestion in the record or opinion below of such pretextual use of the New York nuisance provision in this case, I concur in the Court’s opinion and judgment.
JUSTICE O’CONNOR delivered the opinion of the Court.
The question presented is whether the Commodity Exchange Act (CEA or Act), 7 U.S.C. § 1 et seq., empowers the Commodity Futures Trading Commission (CFTC or Commission) to entertain state law counterclaims in reparation proceedings and, if so, whether that grant of authority violates Article III of the Constitution.
I
The CEA broadly prohibits fraudulent and manipulative conduct in connection with commodity futures transactions. In 1974, Congress “overhaul[ed]” the Act in order to institute a more “comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex.” H.R.Rep. No. 93-975, p. 1 (1974). See Pub.L. 93-463, 88 Stat. 1389. Congress also determined that the broad regulatory powers of the CEA were most appropriately vested in an agency which would be relatively immune from the “political winds that sweep Washington.” H.R.Rep. No. 93-975, at 44, 70. It therefore created an independent agency, the CFTC, and entrusted to it sweeping authority to implement the CEA.
Among the duties assigned to the CFTC was the administration of a reparations procedure through which disgruntled customers of professional commodity brokers could seek redress for the brokers’ violations of the Act or CFTC regulations. Thus, § 14 of the CEA, 7 U.S.C. § 18 (1976 ed.), [ Footnote 1 ] provides that any person injured by such violations may apply to the Commission for an order directing the offender to pay reparations
JUSTICE O’CONNOR, Circuit Justice.
Applicant requests that I issue a stay pending the filing and disposition of a petition for certiorari to review the judgment of the California Court of Appeal, Fourth Appellate District, Division Three. The California Court of Appeal judgment granted Phillip William Feiock’s petition for habeas corpus, holding that the United States Constitution requires that the government prove beyond a reasonable doubt in a civil contempt proceeding that Mr. Feiock was able to comply with a previous court order. The Orange County Superior Court had ordered Mr. Feiock to make child support payments, and after Mr. Feiock failed to comply with this court order, he was held in civil contempt. He was sentenced to a 25-day suspended sentence, placed on probation, and ordered to begin making his child support payments or prepare himself for incarceration. At the civil contempt hearing, the trial court applied Cal. Civ. Proc. Code Ann. § 1209.5 (West 1982), which provides that proof that a court of competent jurisdiction had issued a child support order which was filed and served on a parent, together with proof of noncompliance, constitutes prima facie evidence of a contempt of court.
On petition of Mr. Feiock, the California Court of Appeal granted a writ of habeas corpus and annulled the judgment of contempt. In re Feiock, 180 Cal. App. 3d 649, 225 Cal. Rptr. 748 (1986). The court held that § 1209.5 was unconstitutional under the Due Process Clause of the
JUSTICE O’CONNOR delivered the opinion of the Court.
This case presents the question whether a court may award attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. §1988, in a separate federal action not to enforce any of the civil rights laws listed in §1988, but solely to recover attorney’s fees.
I
In 1957, the Durham City Council advised the North Carolina State Highway Commission of the need for a major east-west expressway in the city. North Carolina Department of Transportation and Federal Highway Administration, Final Environmental Impact Statement No. FHWA-NC-EIS-72 13-F, Historical Resume 15 (1982). Over the years, parts of this highway were completed. In 1976, petitioner North Carolina Department of Transportation (NCDOT) resumed planning an extension of the east-west highway. The proposed extension was to run through the Crest Street community, an established, predominantly black neighborhood in Durham. The extension would have displaced the community park and church and many of the residents of the neighborhood. Respondents, Residents of Crest Street Community and the Save Our Church and Community Committee, two unincorporated associations, retained the North Central Legal Assistance Program to represent them in regard to the proposed highway extension. Despite respondents’ opposition to the extension plans, petitioners issued a revised draft Environmental Impact Statement that continued to propose that the extension run through
JUSTICE O’CONNOR, concurring in part and concurring in the judgment.
I join Parts I, II, III-B, and III-C, and I concur in the Court’s judgment that § 316 of the Federal Election Campaign Act (Act), 2 U.S.C. § 441b, is unconstitutional as applied to the conduct of appellee Massachusetts Citizens for Life, Inc. (MCFL), at issue in this case. I write separately, however, because I am concerned that the Court’s discussion of the Act’s disclosure requirements may be read as moving away from the teaching of Buckley v. Valeo, 424 U. S. 1 (1976); see ante at 479 U. S. 254 -255. In Buckley, the Court was concerned not only with the chilling effect of reporting and disclosure requirements on an organization’s contributors, 424 U.S. at 424 U. S. 66 -68, but also with the potential burden of disclosure requirements on a group’s own speech. Id. at 424 U. S. 74 -82. The Buckley Court concluded that disclosure of a group’s independent campaign expenditures serves the important governmental interest of “shed[ding] the light of publicity” on campaign financing, thereby helping voters to evaluate the constituencies of those who seek federal office. Id. at 424 U. S. 81. As a result, the burden of disclosing independent expenditures generally is “a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.” Id. at 424 U. S. 82.
In my view, the significant burden on MCFL in this case comes not from