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

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, Interstate Relations, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Franchise Tax Bd. of Cal. v. Hyatt

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, Interstate Relations, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. We granted certiorari to resolve whether the Nevada Supreme Court’s refusal to extend full faith and credit to California’s statute immunizing its tax collection agency from suit violates Article IV; § 1, of the Constitution. We conclude it does not, and we therefore affirm the judgment of the Nevada Supreme Court.

I

Respondent Gilbert P. Hyatt (hereinafter respondent) filed a “part-year” resident income tax return in California for 1991. App. to Pet. for Cert. 54. In the return, respondent represented that as of October 1, 1991, he had ceased to be a California resident and had become a resident of Nevada. In 1993, petitioner California Franchise Tax Board (CFTB) commenced an audit to determine whether respondent had underpaid state income taxes. Ibid. The audit focused on

*Eriefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Dornan, Attorney General of Florida, Jonathan A. Glogau, Barbara J. Ritchie, Acting Attorney General of Alaska, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Steve Carter of Indiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota,

Antonin Scalia, Criminal Procedure, John Paul Stevens, Majority, Thurgood Marshall, William Brennan

Idaho v. Wright

Antonin Scalia, Criminal Procedure, John Paul Stevens, Majority, Thurgood Marshall, William Brennan / By

Justice O’CONNOR delivered the opinion of the Court.

This case requires us to decide whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant’s rights under the Confrontation Clause of the Sixth Amendment.

I

Respondent Laura Lee Wright was jointly charged with Robert L. Giles of two counts of lewd conduct with a minor under 16, in violation of Idaho Code § 18-1508 (1987). The alleged victims were respondent’s two daughters, one of whom was 5 1/2 and the other 2 1/2 years old at the time the crimes were charged.

Respondent and her ex-husband, Louis Wright, the father of the older daughter, had reached an informal agreement whereby each parent would have custody of the older daughter for six consecutive months. The allegations surfaced in November, 1986, when the older daughter told Cynthia Goodman, Louis Wright’s female companion, that Giles had had sexual intercourse with her while respondent held her down and covered her mouth, App. 47-55; 3 Tr. 456-460, and that she had seen respondent and Giles do the same thing to respondent’s younger daughter, App. 48-49, 61; 3 Tr. 460. The younger daughter was living with her parents -respondent and Giles -at the time of the alleged offenses.

Goodman reported the older daughter’s disclosures to the police the next day, and took the older daughter to the hospital. A medical examination of the older daughter revealed evidence of sexual abuse. One of the examining

Antonin Scalia, Clarence Thomas, Concurrence, Federalism

Idaho v. Coeur d’Alene Tribe of Idaho

Antonin Scalia, Clarence Thomas, Concurrence, Federalism / By

JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring in part and concurring in the judgment.

The Coeur d’Alene Tribe of Idaho seeks declaratory and injunctive relief precluding Idaho officials from regulating or interfering with its possession of submerged lands beneath Lake Coeur d’Alene. Invoking the doctrine of Ex parte Young, 209 U. S. 123 (1908), the Tribe argues that the Eleventh Amendment does not bar it from pursuing its claims against state officials in federal court. I agree with the Court that the Tribe’s claim cannot go forward in federal court.

In Young, the Court held that a federal court has jurisdiction over a suit against a state officer to enjoin official actions that violate federal law, even if the State itself is immune from suit under the Eleventh Amendment. The Young doctrine recognizes that if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity. Id., at 159-160. Where a plaintiff seeks prospective relief to end a state officer’s ongoing violation of federal law, such a claim can ordinarily proceed in federal court. Milliken v. Bradley, 433 U. S. 267, 289-290 (1977). The doctrine is not, however, without limitations. A federal court cannot award retrospective relief, designed to remedy past violations of federallaw. See Edelman v. Jordan, 415 U. S. 651, 668 (1974); Green v. Mansour,

Dissent, Economic Activity, Harry Blackmun, John Paul Stevens, Lewis Powell

ICC v. American Trucking Assns. Inc

Dissent, Economic Activity, Harry Blackmun, John Paul Stevens, Lewis Powell / By

JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE STEVENS join, dissenting.

This case presents the question whether the Interstate Commerce Commission (Commission) may nullify a motor carrier tariff at any time after it has become effective. Such nullification renders the carrier liable to shippers for the amount by which the rejected rate exceeds the last rate the carrier has lawfully filed. The Court quite correctly reasons that 49 U.S.C. § 10762(e) does not authorize the Commission to reject effective tariffs. See ante at 467 U. S. 361 -364. Reading § 10762(e) to authorize such action would indeed give the Commission an “unbridled discretion” that Congress did not intend it to have. See ante at 467 U. S. 363. However, after having correctly rejected § 10762(e) as a basis for the proposed rejection power, the Court then mysteriously concludes that the power is within the Commission’s “discretionary power” to ensure that shippers adhere strictly to their approved rate bureau agreements. Ante at 467 U. S. 367. I frankly do not understand how this alternative “discretionary power” rationale better reins in the Commission’s discretion. Accordingly, I dissent.

I

The Court starts with the proposition that the enumeration of certain Commission powers in the Interstate Commerce Act, as amended, 49 U.S.C. § 10101 et seq., does not necessarily exclude others not expressly listed. See ante at 467 U. S. 364 -365. I have no quarrel with that proposition. Like

Byron White, Due Process, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Brennan, William Rehnquist

Hawaii Housing Auth. v. Midkiff

Byron White, Due Process, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The Fifth Amendment of the United States Constitution provides, in pertinent part, that “private property [shall not] be taken for public use, without just compensation.” These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not.

I

A

The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali’i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali’i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5.

Beginning in the early 1800’s, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however,

Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, Warren Burger, William Brennan

Hathorn v. Lovorn

Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, Warren Burger, William Brennan / By

JUSTICE O’CONNOR delivered the opinion of the Court.

We granted certiorari to decide whether a state court may order implementation of a change in election procedure over objections that the change is subject to preclearance under § 5 of the Voting Rights Act of 1965. [ Footnote 1 ]

I

Since 1960, the Louisville School District has been coextensive with Winston County, Miss. Until last December, the Louisville mayor and city aldermen appointed three of the five members of the District’s Board of Trustees, and Winston County voters residing outside Louisville elected the other two members.

In 1964, the Mississippi Legislature enacted a statute providing in part:

The boards of trustees of all municipal separate school districts, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five (5) years, but so chosen that the term of office of one (1) member shall expire each year…. [I]n any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one (1) trustee shall be elected from each supervisors district.

1964 Miss. Gen. Laws, ch. 391, p. 563, codified, as amended, in Miss.Code Ann. § 37-7-203(1)(Supp.1981). Winston County is the only Mississippi county in which Highways 14 and 15 intersect. Officials in that county never implemented § 37-7-203(1), because they believed the statute’s reference to Highways 14 and 15 violated a state constitutional prohibition

Concurrence, Criminal Procedure

Harris v. United States

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring.

Petitioner bases his statutory argument that brandishing must be interpreted as an offense element on Jones v. United States, 526 U. S. 227 (1999). He bases his constitutional argument that regardless of how the statute is interpreted, brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt on Apprendi v. New Jersey, 530 U. S. 466 (2000). As I dissented in Jones and Apprendi and still believe both were wrongly decided, I find it easy to reject petitioner’s arguments. Even assuming the validity of Jones and Apprendi, however, I agree that petitioner’s arguments that brandishing must be charged in the indictment and found by the jury beyond a reasonable doubt are unavailing. I therefore join JUSTICE KENNEDY’S opinion in its entirety.