Anthony Kennedy, Antonin Scalia, Byron White, David Souter, Economic Activity, John Paul Stevens, Majority, Thurgood Marshall, William Rehnquist

Feist Pubs. Inc. v. Rural Tel. Svc. Co. Inc

Anthony Kennedy, Antonin Scalia, Byron White, David Souter, Economic Activity, John Paul Stevens, Majority, Thurgood Marshall, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to clarify the extent of copyright protection available to telephone directory white pages.

I

Rural Telephone Service Company is a certified public utility that provides telephone service to several communities in northwest Kansas. It is subject to a state regulation that requires all telephone companies operating in Kansas to issue annually an updated telephone directory. Accordingly, as a condition of its monopoly franchise, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural’s subscribers, together with their towns and telephone numbers. The yellow pages list Rural’s business subscribers alphabetically by category, and feature classified advertisements of various sizes. Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements.

Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. Unlike a typical directory, which covers only a particular calling area, Feist’s area-wide directories cover a much larger geographical range, reducing the need to call directory assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different telephone service areas in 15 counties and contains 46,878 white pages listings -compared to Rural’s approximately

Concurrence, First Amendment

FEC v. Mass. Cit. for Life

Concurrence, First Amendment / By

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

Byron White, Economic Activity, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Brennan

FDIC v. Philadelphia Gear Corp

Byron White, Economic Activity, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Brennan / By

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),

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Economic Activity, Majority, William Rehnquist

FDA v. Brown & Williamson Tobacco Corp

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Economic Activity, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. This case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use. In 1996, the Food and Drug Administration (FDA), after having expressly disavowed any such authority since its inception, asserted jurisdiction to regulate tobacco products. See 61 Fed. Reg. 44619-45318. The FDA concluded that nicotine is a “drug” within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), 52 Stat. 1040, as amended, 21 U. S. C. § 301et seq.,and that cigarettes and smokeless tobacco are “combination products” that deliver nicotine to the body. 61 Fed. Reg. 44397 (1996). Pursuant to this authority, it promulgated regulations intended to reduce tobacco consumption among children and adolescents.Id.,at 4461544618. The agency believed that, because most tobacco consumers begin their use before reaching the age of 18, curbing tobacco use by minors could substantially reduce the prevalence of addiction in future generations and thus the incidence of tobacco-related death and disease.Id.,at 44398-44399.

Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority “in a manner that is inconsistent with the administrative structure that Congress enacted into law.” ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988). And although agencies are generally entitled to deference

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, John Paul Stevens, Majority, Ruth Bader Ginsburg, William Rehnquist

Hagen v. Utah

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, John Paul Stevens, Majority, Ruth Bader Ginsburg, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case we decide whether the Uintah Indian Reservation was diminished by Congress when it was opened to nonIndian settlers at the turn of the century. If the reservation has been diminished, then the town of Myton, Utah, which lies on opened lands within the historical boundaries of the reservation, is not in “Indian country,” see 18 U. S. C. § 1151, and the Utah state courts properly exercised criminal jurisdiction over petitioner, an Indian who committed a crime in Myton.

I

On October 3, 1861, President Lincoln reserved about 2 million acres of land in the Territory of Utah for Indian settlement. Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 900 (1904). Congress confirmed the President’s action in 1864, creating the Uintah Valley Reservation. Act of May 5, 1864, ch. 77, 13 Stat. 63. According to the 1864 Act, the lands were “set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same.” Ibid. The presentday Ute Indian Tribe includes the descendants of the Indians who settled on the Uintah Reservation.

In the latter part of the 19th century, federal Indian policy changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982 ed.). Indians were no longer to inhabit communally owned reservations, but instead were to be given individual parcels of land; any remaining lands

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, David Souter, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist

Hafer v. Melo

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, David Souter, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), we held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability

* Richard Ruda filed a brief for the National Association of Counties et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Andrew J. Pincus, John A. Powell, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for Kenneth W. Fultz by Cletus P. Lyman; and for Nancy Haberstroh by Stephen R. Kaplan. OCTOBER TERM, 1991 Syllabus HAFER v. MELO ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No.90-681. Argued October 15, 1991-Decided November 5,1991 Mter petitioner Hafer, the newly elected auditor general of Pennsylvania, discharged respondents from their jobs in her office, they sued her for, inter alia, monetary damages under 42 U. S. C. § 1983. The District Court dismissed the latter claims under Will v. Michigan Dept. of State Police, 491 U. S. 58, 71, in which the Court held that state officials “acting in their official capacities” are outside the class of “persons” subject to liability under § 1983. In reversing this ruling, the Court of Appeals found that respondents sought damages from Hafer in her personal capacity

Concurrence, Criminal Procedure

Garrett v. United States

Concurrence, Criminal Procedure / By

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

Clarence Thomas, Dissent, Economic Activity

FTC v. Ticor Title Ins. Co

Clarence Thomas, Dissent, Economic Activity / By

JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins, dissenting.

Notwithstanding its assertions to the contrary, the Court has diminished the States’ regulatory flexibility by creating an impossible situation for those subject to state regulation. Even when a State has a “clearly articulated policy” authorizing anticompetitive behavior-which the Federal Trade Commission concedes was the case here-and even when the State establishes a system to supervise the implementation of that policy, the majority holds that a federal court may later find that the State’s supervision was not sufficiently “substantial” in its “specifics” to insulate the anticompetitive behavior from antitrust liability. Ante, at 635. Given the threat of treble damages, regulated entities that have the option of heeding the State’s anticompetitive policy would be foolhardy to do so; those that are compelled to comply are less fortunate. The practical effect of today’s decision will likely be to eliminate so-called “negative option” regulation from the universe of schemes available to a State that seeks to regulate without exposing certain conduct to federal antitrust liability.

The Court does not dispute that each of the States at issue in this case could have supervised respondents’ joint ratemaking; rather, it argues that “the potential for state super VISIOn was not realized in fact.” Ante, at 638. Such an after-the-fact evaluation of a State’s exercise of its supervisory powers is extremely unfair to regulated

Anthony Kennedy, Antonin Scalia, First Amendment, Harry Blackmun, Majority, William Rehnquist

Frisby v. Schultz

Anthony Kennedy, Antonin Scalia, First Amendment, Harry Blackmun, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing “before or about” any residence. This case presents a facial First Amendment challenge to that ordinance.

I

Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion, and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor’s home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints.

The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court’s decision in Carey v. Brown, 447 U. S. 455 (1980),

Concurrence, Criminal Procedure, Harry Blackmun

Franklin v. Lynaugh

Concurrence, Criminal Procedure, Harry Blackmun / By

JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN joins, concurring in the judgment.

Petitioner was sentenced to death by a jury that was permitted to express its views on punishment only by answering two questions: (1) Did petitioner murder the victim deliberately? and (2) Is there a probability that he will pose a continuing threat to society? We must decide whether this capital sentencing scheme unconstitutionally limited the jury’s ability to give mitigating effect to evidence of petitioner’s prison record or to “residual doubts” about his guilt.

The plurality concludes that the jury’s consideration of petitioner’s prison record and of its “residual doubts” about his guilt was not limited in this case, but nevertheless goes on to suggest that a State may constitutionally limit the ability of the sentencing authority to give effect to mitigating evidence relevant to a defendant’s character or background or to the circumstances of the offense that mitigates against the death penalty. Ante at 487 U. S. 179, 487 U. S. 180, n. 10. Unlike the plurality, I have doubts about a scheme that is limited in such a fashion. I write separately to express those doubts, and to explain my reasons for concurring in the judgment.

In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas capital sentencing procedures satisfied the Eighth Amendment requirement that the sentencer be allowed to consider circumstances mitigating against capital punishment. The Court observed that, even