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, Judicial Power

Gutierrez de Martinez v. Lamagno

Concurrence, Judicial Power / By

JUSTICE O’CONNOR, concurring in part and concurring in the judgment.

For the reasons given in Parts I-III of the Court’s opinion, which I join, I agree with the Court (and the Attorney General) that the Attorney General’s scope-of-employment certifications in Westfall Act cases should be judicially reviewable. I do not join Part IV of the opinion, however. That discussion all but conclusively resolves a difficult question of federal jurisdiction that, as JUSTICE GINSBURG notes, is not presented in this case. Ante, at 435. In my view, we should not resolve that question until it is necessary for us to do so.

Of course, I agree with the dissent, post, at 441, that we ordinarily should construe statutes to avoid serious constitutional questions, such as that discussed in Part IV of the Court’s opinion, when it is fairly possible to do so. See United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); Rust v. Sullivan, 500 U. S. 173, 223-225 (1991) (O’CONNOR, J., dissenting). And I recognize that reversing the Court of Appeals’ judgment in this case may make it impossible to avoid deciding that question in a future case. But even such an important canon of statutory construction as that favoring the avoidance of serious constitutional questions does not always carry the day. In this case, as described in detail by the Court, ante, at 423-434, several other important legal principles, including the presumption in favor of judicial review of executive action, ante, at 424,

Civil Rights, Concurrence

Guardians Assn. v. Civil Svc. Comm’n

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring in the judgment.

For reasons given in Part I of the dissent by JUSTICE STEVENS, post at 463 U. S. 636 -639, I cannot agree with the limitations that JUSTICE WHITE’s opinion would place on the scope of equitable relief available to private litigants suing under Title VI. [ Footnote 3/1 ] Therefore, like the dissent, I would address two further questions: (1) whether proof of purposeful discrimination is a necessary element of a valid Title VI claim, and (2) if so, whether administrative regulations incorporating an impact standard may be upheld as within the agency’s statutory authority. My affirmative answer to the first question leads me to conclude that regulations imposing an impact standard are not valid. On that basis, I would affirm the judgment below.

Were we construing Title VI without the benefit of any prior interpretation from this Court, one might well conclude that the statute was designed to redress more than purposeful discrimination. Cf. University of California Regents v. Bakke, 438 U. S. 265, 438 U. S. 412 -418 (1978) (opinion of STEVENS, J.). In Bakke, however, a majority of the Court concluded otherwise. Id. at 438 U. S. 287 (opinion of POWELL, J.); id. at 438 U. S. 328 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). Like JUSTICE STEVENS, post at 463 U. S. 641 -642, I feel constrained by stare decisis to follow that interpretation of the statute. I part company with JUSTICE STEVENS’ dissent, however, when it concludes

Dissent, Due Process, Warren Burger, William Rehnquist

Greene v. Lindsey

Dissent, Due Process, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court’s result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.

At a minimum, the Fourteenth Amendment requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 314 (1950). The question before the Court is whether the notice provided by Kentucky’s statute meets this standard. In answering that question, the first “circumstances” to be considered are the nature and purpose of the action for which notice is required.

Kentucky’s forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky.Rev.Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances

Civil Rights, Concurrence, Stephen Breyer

Gratz v. Bollinger

Civil Rights, Concurrence, Stephen Breyer / By

JUSTICE O’CONNOR, concurring.*

I

Unlike the law school admissions policy the Court upholds today in Grutter v. Bollinger, post, p. 306, the procedures employed by the University of Michigan’s (University) Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. Cf. Regents of Univ. of Gal. v. Bakke, 438 U.S. 265 (1978) (principal opinion of Powell, J.). The law school considers the various diversity qualifications of each applicant, including race, on a case-bycase basis. See Grutter v. Bollinger, post, at 337-339. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. Cf. ante, at 271-272, 273. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court’s opinion in Grutter, post, at 334, requires: consideration of each applicant’s individualized qualifications, including the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups. Cf. ante, at 272-273 (citing Bakke, supra, at 324).

On cross-motions for

First Amendment, Partial concurrence, partial dissent

Grand Rapids Sch. Dist. v. Ball

First Amendment, Partial concurrence, partial dissent / By

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

For the reasons stated in my dissenting opinion in Aguilar v. Felton, post, p. 473 U. S. 402, I dissent from the Court’s holding that the Grand Rapids Shared Time program impermissibly advances religion. Like the New York Title I program, the Grand Rapids Shared Time program employs full-time public school teachers who offer supplemental instruction to parochial school children on the premises of religious schools. Nothing in the record indicates that Shared Time instructors have attempted to proselytize their students. I see no reason why public school teachers in Grand Rapids are any more likely than their counterparts in New York to disobey their instructions.

The Court relies on the District Court’s finding that a

significant portion of the Shared Time instructors previously taught in nonpublic schools, and many of those had been assigned to the same nonpublic school where they were previously employed.

Americans United for Separation of Church and State v. School Dist. of Grand Rapids, 546 F.Supp. 1071, 1078 (WD Mich.1982). See ante at 473 U. S. 376, 473 U. S. 387, and n. 7. In fact, only 13 Shared Time instructors have ever been employed by any parochial school, and only a fraction of those 13 now work in a parochial school where they were previously employed. App.193. The experience of these few teachers does not significantly increase the risk that the perceived or actual effect of the

Criminal Procedure, Dissent

Grady v. Corbin

Criminal Procedure, Dissent / By

Justice O’CONNOR, dissenting.

I agree with much of what Justice SCALIA says in his dissenting opinion. I write separately, however, to note that my dissent is premised primarily on my view that the inconsistency between the Court’s opinion today and Dowling v. United States, 493 U. S. 342 (1990), decided earlier this Term, indicates that the Court has strayed from a proper interpretation of the scope of the Double Jeopardy Clause.

In Dowling, we considered whether an eyewitness’ testimony regarding a robbery for which Dowling had been acquitted was admissible at a second trial of Dowling for an unrelated robbery. The eyewitness had testified at the first trial that a man had entered her house “wearing a knitted mask with cutout eyes and carrying a small handgun” and that his mask had come off during a struggle, revealing his identity. Id. at 493 U. S. 344. Based on this evidence, Dowling had been charged with burglary, attempted robbery, assault, and weapons offenses, but was acquitted of all charges. At a second trial for an unrelated bank robbery, the government attempted to use the witness’ testimony to prove Dowling’s identity as a robber. We held that the Double Jeopardy Clause did not bar the introduction of the evidence: because the prior acquittal did not necessarily represent a jury determination that Dowling was not the masked man who had entered the witness’ home, the testimony was admissible in the second trial to prove identity. Id. at 493 U. S. 348 -352.

The