Concurrence, Judicial Power, Warren Burger, William Rehnquist

Diamond v. Charles

Concurrence, Judicial Power, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

I join the Court’s judgment and Part I of its opinion, and I agree with much of the Court’s discussion of.why Dr. Diamond’s asserted interests in defending the Illinois Abortion Law do not satisfy the Art. III standing requirement. I write separately, however, because I do not agree with the Court’s reasons for rejecting Dr. Diamond’s contention that Illinois’ presence as an appellee ensures that a justiciable controversy is before us. In my view, Dr. Diamond was not a proper intervenor in the Court of Appeals, and therefore Illinois is not before this Court in any capacity, because Diamond was not authorized to bring this appeal under 28 U.S.C. § 1254(2).

The Court assumes that Diamond could properly bring an appeal under § 1254(2), and therefore that Illinois is present in this Court as an appellee under this Court’s Rule 10.4. The Court then asserts that Illinois is not “the functional equivalent of an appellant” by virtue of its status as a party under Rule 10.4. Ante at 476 U. S. 62 -63. On this basis, the Court concludes that Illinois’ “failure to invoke our jurisdiction leaves the Court without a case’ or `controversy’ between appellees and the State of Illinois,” ante at 476 U. S. 63 -64, even if Illinois’ interests are actually adverse to appellees’ interests. I believe this analysis is needlessly inconsistent with this Court’s opinion in Director,

David Souter, John Paul Stevens, Judicial Power, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Devlin v. Scardelletti

David Souter, John Paul Stevens, Judicial Power, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. Petitioner, a nonnamed member of a class certified under Federal Rule of Civil Procedure 23(b)(1), sought to appeal the approval of a settlement over objections he stated at the fairness hearing. The Court of Appeals for the Fourth Circuit held that he lacked the power to bring such an appeal because he was not a named class representative and because he had not successfully moved to intervene in the litigation. We now reverse.

I

Petitioner Robert Devlin, a retired worker represented by the Transportation Communications International Union (Union), participates in a defined benefits pension plan (Plan) administered by the Union. In 1991, on the recommendation of the Plan’s trustees, the Plan was amended to add a cost of living adjustment (COLA) for retired and active employees. As it turned out, however, the Plan was not able to support such a large benefits increase. To address this problem, the Plan’s new trustees sought to freeze the COLA. Because they were concerned about incurring Employee Retirement Income Security Act of 1974 (ERISA) liability by eliminating the COLA for retired workers, see 29 U. S. C. § 1054(g)(1) (1994 ed.) (providing that accrued benefits “may not be decreased by an amendment of the plan”), the trustees froze the COLA only as to active employees. Because the Plan still lacked sufficient funds, the new trustees obtained an equitable decree from the United States District Court for the District of

First Amendment, Partial concurrence, partial dissent

Fort Wayne Books Inc. v. Indiana

First Amendment, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, concurring in part and dissenting in part.

Because I believe that this Court does not have jurisdiction to hear the petition in Sappenfield v. Indiana, No. 87-614, I dissent from the Court’s disposition of that case. I concur in the Court’s disposition of Fort Wayne Books, Inc. v. Indiana, No. 87-470, which presents, among others, the same question as presented in Sappenfield.

Petitioners Sappenfield and his bookstore corporations, Fantasy One, Inc., and Fantasy Two, Inc., have yet to be tried or convicted on the Racketeer Influenced and Corrupt Organizations (RICO) counts brought against them by the State of Indiana. Petitioners’ motion to dismiss the RICO counts and the State’s subsequent appeal were, therefore, interlocutory. Except in limited circumstances, this Court has jurisdiction only to review final judgments rendered by the highest court of the State in which decision may be had. 28 U.S.C. § 1257. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975). As we observed in Flynt v. Ohio, 451 U. S. 619, 451 U. S. 620 (1981) (per curiam), a case involving violations of Ohio’s obscenity statute, “[a]pplied in the context of a criminal prosecution, finality is normally defined by the imposition of the sentence.” Neither a finding of guilt nor imposition of sentence has yet occurred in Sappenfield. As in Flynt, were we to assume jurisdiction over Sappenfield, there would be some

probability of piecemeal review with respect to federal issues [because]

Antonin Scalia, Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Forrester v. White

Antonin Scalia, Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.*

This case requires us to decide whether a state court judge has absolute immunity from a suit for damages under 42 U.S.C. § 1983 for his decision to dismiss a subordinate court employee. The employee, who had been a probation officer, alleged that she was demoted and discharged on account of her sex, in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the judge’s decisions were not judicial acts for which he should be held absolutely immune.

I

Respondent Howard Lee White served as Circuit Judge of the Seventh Judicial Circuit of the State of Illinois and Presiding Judge of the Circuit Court in Jersey County. Under Illinois law, Judge White had the authority to hire adult probation officers, who were removable in his discretion. Ill.Rev.Stat., ch. 38, 204-1 (1979). In addition, as designee of the Chief Judge of the Seventh Judicial Circuit, Judge White had the authority to appoint juvenile probation officers to serve at his pleasure. Ill.Rev.Stat., ch. 37, 706-5 (1979).

In April, 1977, Judge White hired petitioner Cynthia A. Forrester as an adult and juvenile probation officer. Forrester prepared presentence reports for Judge White in adult offender cases, and recommendations for disposition and placement in juvenile cases. She also supervised persons on probation and recommended revocation when necessary. In July, 1979, Judge White appointed Forrester as Project Supervisor of the Jersey

Byron White, Criminal Procedure, Partial concurrence, partial dissent

Ford v. Wainwright

Byron White, Criminal Procedure, Partial concurrence, partial dissent / By

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).

Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist

Ford Motor Co. v. EEOC

Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the question whether an employer charged with discrimination in hiring can toll the continuing accrual of backpay liability under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), simply by unconditionally offering the claimant the job previously denied, or whether the employer also must offer seniority retroactive to the date of the alleged discrimination. [ Footnote 1 ]

The question has considerable practical significance because of the lengthy delays that too often attend Title VII litigation. [ Footnote 2 ] The extended time it frequently takes to obtain satisfaction in the courts may force a discrimination claimant to suffer through years of underemployment or unemployment before being awarded the job the claimant deserves. Court delays, of course, affect all litigants. But for the victim of job discrimination, delay is especially unfortunate. The claimant cannot afford to stand aside while the wheels of justice grind slowly toward the ultimate resolution of the lawsuit. The claimant needs work that will feed a family and restore self-respect. A job is needed -now. In this case, therefore, we must determine how best to fashion the remedies available under Title VII to fulfill this basic need.

I

A

In June and July, 1971, Judy Gaddis, Rebecca Starr, and Zettie Smith applied at a Ford Motor Co. (Ford) parts warehouse located in Charlotte, N.C., for jobs as “picker-packers,” “picking” ordered parts from

Byron White, Lewis Powell, Majority, Miscellaneous, Thurgood Marshall, Warren Burger, William Rehnquist

FNC Bank v. Banco Para el Comercio

Byron White, Lewis Powell, Majority, Miscellaneous, Thurgood Marshall, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1960, the Government of the Republic of Cuba established respondent Banco Para el Comercio Exterior de Cuba (Bancec) to serve as “[a]n official autonomous credit institution for foreign trade… with full juridical capacity… of its own….” Law No. 793, Art. 1 (1960), App. to Pet. for Cert.2d. In September, 1960, Bancec sought to collect on a letter of credit issued by petitioner First National City Bank (now Citibank) in its favor in support of a contract for delivery of Cuban sugar to a buyer in the United States. Within days after Citibank received the request for collection, all of its assets in Cuba were seized and nationalized by the Cuban Government. When Bancec brought suit on the letter of credit in United States District Court, Citibank counterclaimed, asserting a right to set off the value of its seized Cuban assets. The question before us is whether Citibank may obtain such a setoff, notwithstanding the fact that Bancec was established as a separate juridical entity. Applying principles of equity common to international law and federal common law, we conclude that Citibank may apply a setoff.

I

Resolution of the question presented by this case requires us to describe in some detail the events giving rise to the current controversy.

Bancec was established by Law No. 793, of April 25, 1960, as the legal successor to the Banco Cubano del Comercio Exterior (Cuban Foreign Trade Bank), a trading bank established

Concurrence, Criminal Procedure

Florida v. Riley

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring in the judgment.

I concur in the judgment reversing the Supreme Court of Florida because I agree that police observation of the greenhouse in Riley’s curtilage from a helicopter passing at an altitude of 400 feet did not violate an expectation of privacy “that society is prepared to recognize as reasonable.'” Katz v. United States, 389 U. S. 347, 389 U. S. 361 (1967) (Harlan, J., concurring). I write separately, however, to clarify the standard I believe follows from California v. Ciraolo, 476 U. S. 207 (1986). In my view, the plurality’s approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.Const., Amdt. 4.

Ciraolo involved observation of curtilage by officers flying in an airplane at an altitude of 1,000 feet. In evaluating whether this observation constituted a search for which a warrant was required, we acknowledged the importance of curtilage in Fourth Amendment doctrine:

The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.

476 U.S. at 476 U. S. 212 -213. Although the curtilage is an area to which the private activities of the home

Anthony Kennedy, Antonin Scalia, Byron White, Criminal Procedure, David Souter, Majority, William Rehnquist

Florida v. Bostick

Anthony Kennedy, Antonin Scalia, Byron White, Criminal Procedure, David Souter, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.

I

Drug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff’s Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage.

In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision:

‘Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing

Antonin Scalia, Attorneys, Clarence Thomas, Majority, Stephen Breyer, William Rehnquist

Florida Bar v. Went For It Inc

Antonin Scalia, Attorneys, Clarence Thomas, Majority, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not.

I

In 1989, the Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising on public opinion. After conducting hearings, commissioning surveys, and reviewing extensive public commentary, the Bar determined that several changes to its advertising rules were in order. In late 1990, the Florida Supreme Court adopted the Bar’s proposed amendments with some modifications. The Florida Bar:

Petition to Amend the Rules Regulating the Florida BarAdvertising Issues, 571 So. 2d 451 (Fla. 1990). Two of these amendments are at issue in this case. Rule 4-7.4(b)(1) provides that “[a] lawyer shall not send, or knowingly permit to be sent,… a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication.”