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

Dissent, First Amendment, Thurgood Marshall

Goldman v. Weinberger

Dissent, First Amendment, Thurgood Marshall / By

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

The issue posed in this case is whether, consistent with the Free Exercise Clause of the First Amendment, the Air Force may prohibit Captain Goldman, an Orthodox Jewish psychologist, from wearing a yarmulke while he is in uniform on duty inside a military hospital.

The Court rejects Captain Goldman’s claim without even the slightest attempt to weigh his asserted right to the free exercise of his religion against the interest of the Air Force in uniformity of dress within the military hospital. No test for free exercise claims in the military context is even articulated, much less applied. It is entirely sufficient for the Court if the military perceives a need for uniformity.

JUSTICE STEVENS acknowledges that

Captain Goldman’s military duties are performed in a setting in which a modest departure from the uniform regulation creates almost no danger of impairment of the Air Force’s military mission.

Ante at 475 U. S. 511 (concurring). Nevertheless, JUSTICE STEVENS is persuaded that a governmental regulation based on any “neutral, completely objective standard,” ante at 475 U. S. 513, will survive a free exercise challenge.

In contrast, JUSTICE BRENNAN recognizes that the Court “overlooks the sincere and serious nature of [the] constitutional claim.” Ante at 475 U. S. 514 (dissenting). He properly notes that, even with respect to military rules and regulations, the courts have a duty to weigh sincere First

Concurrence, Economic Activity

Goldberg v. Sweet

Concurrence, Economic Activity / By

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

I agree that the Illinois Telecommunications Excise Tax Act does not violate the Commerce Clause, and join Parts I, II-A, II-D, and III of the Court’s opinion. I write separately to explain why I do not join Parts II-B and II-C. First, I am still unsure of the need and authority for applying the internal consistency test to state taxes challenged under the Commerce Clause. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 483 U. S. 303 (1987) (O’CONNOR, J., dissenting). I therefore do not join in the Court’s application of that test to the Tax Act. Ante at 488 U. S. 261. Second, I agree with JUSTICE STEVENS that a State may not discriminate among its own residents by placing a heavier tax on those who engage in interstate commerce than those who merely engage in local commerce. Ante at 488 U. S. 268 (STEVENS, J., concurring in part and concurring in judgment). Accordingly, I cannot join the Court’s statement that “[i]t is not a purpose of the Commerce Clause to protect state residents from their own state taxes.” Ante at 488 U. S. 266.

Concurrence, First Amendment

Globe Newspaper Co. v. Superior Ct

Concurrence, First Amendment / By

JUSTICE O’CONNOR, concurring in the judgment.

In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980), the Court held that the First Amendment protects the right of press and public to attend criminal trials. I do not interpret that decision to shelter every right that is “necessary to the enjoyment of other First Amendment rights.” Ante at 457 U. S. 604. Instead, Richmond Newspapers rests upon our long history of open criminal trials and the special value, for both public and accused, of that openness. As the plurality opinion in Richmond Newspapers stresses,

it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.

448 U.S. at 448 U. S. 575. Thus, I interpret neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.

This case, however, does involve a criminal trial. Moreover, it involves a statute mandating automatic exclusion of the public from certain testimony. As the Court explains, Massachusetts has demonstrated no interest weighty enough to justify application of its automatic bar to all cases, even those in which the victim, defendant, and prosecutor have no objection to an open trial. Accordingly, I concur in the judgment.

Byron White, Concurrence, Criminal Procedure

Gilmore v. Taylor

Byron White, Concurrence, Criminal Procedure / By

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

Kevin Taylor admitted that he had killed Scott Siniscalchi.

He contended, however, that he had “act[ed] under a sudden and intense passion resulting from serious provocation by [Siniscalchi].” Ill. Rev. Stat., ch. 38,, 9-2 (1985). If Taylor’s account is to be believed, then, under the law of the State of Illinois, he is not guilty of murder but rather of manslaughter. Ibid. At trial, Taylor took the stand and admitted to the two elements of murder. He asked only that the jury consider his state of mind when he acted and convict him of voluntary manslaughter, acquitting him of murder. Illinois law is clear that this put the jury to a choice: Taylor could be convicted only of manslaughter or murder-not of both. Indeed, because Taylor produced sufficient evidence to raise the defense of sudden passion, Illinois law required the State to negate Taylor’s defense beyond a reasonable doubt. People v. Reddick, 123 Ill. 2d 184, 197, 526 N. E. 2d 141, 146 (1988). As a result, the jury should not have been permitted to convict Taylor of murder if there was so much as a reasonable possibility that Taylor’s manslaughter defense had merit. Ibid.

In Falconer v. Lane, 905 F.2d 1129 (1990), the Court of Appeals for the Seventh Circuit held that instructions similar to those given at Taylor’s trial did not comport with Illinois law and were ambiguous at best. In Taylor’s case, according to the Court of Appeals, this

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, David Souter, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist

General Motors Corp. v. Romein

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, David Souter, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1987, the Michigan Legislature enacted a statute that had the effect of requiring petitioners General Motors Corporation (GM) and Ford Motor Company (Ford) to repay workers’ compensation benefits GM and Ford had withheld in reliance on a 1981 workers’ compensation statute. Petitioners challenge the provision of the statute mandating these retroactive payments on the ground that it violates the Contract Clause and the Due Process Clause of the Federal Constitution.

I

Since at least 1974, workers’ compensation law in Michigan has been the subject of legislative study and bitter debate. VanderLaan & Studley, Workers’ Compensation Reform: A Case Study of the Legislative Process in Michigan, 14 U. Mich. J. L. Ref. 451, 452-454 (1981). “Literally dozens of conflicting legislative proposals” were offered each year, and all were fought to a standstill by competing interest groups. Id., at 453. The legislative logjam was finally broken in 1980, when the Governor and four legislative leaders began a series of negotiations leading to an agreement on reforms.

*Briefs of amici curiae urging reversal were filed for Citizens Insurance Co. of America et al. by Donald S. Young and Kathleen McCree Lewis; for the Motor Vehicle Manufacturers Association of the United States, Inc., et al. by David A. Strauss, William H. Crabtree, Dwight H. Vincent, J. Walker Henry, and Rachelle G. Silberberg; and for the Washington Legal Foundation by Scott

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