Antonin Scalia, Clarence Thomas, Dissent, Economic Activity, William Rehnquist

Hess v. Port Authority Trans-Hudson Corporation

Antonin Scalia, Clarence Thomas, Dissent, Economic Activity, William Rehnquist / By

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

The Court’s opinion, as I read it, makes two different points. First, an interstate compact entity is presumptively not entitled to immunity under the Eleventh Amendment, because the States surrendered any such entitlement “[a]s part of the federal plan prescribed by the Constitution.” Ante, at 41. When States act in concert under the Interstate Compact Clause, they cede power to each other and to the Federal Government, which, by consenting to the state compact, becomes one of the compact entity’s creators. As such, each individual State lacks meaningful control over the entity, and suits against the entity in federal court pose no affront to a State’s “dignity.” Ibid. Second, in place of the various factors recognized in Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 (1979), for determining arm-of-the-state status, we may now substitute a single overriding criterion, vulnerability of the state treasury. If a State does not fund judgments against an entity, that entity is not within the ambit of the Eleventh Amendment, and suits in federal court may proceed unimpeded. By the Court’s reckoning, the state treasury is not implicated on these facts. Neither, it follows, is the Eleventh Amendment.

I disagree with both of these propositions and with the ultimate conclusion the Court draws from them. The Eleventh Amendment, in my view, clothes this interstate

Anthony Kennedy, Concurrence, Criminal Procedure

Herrera v. Collins

Anthony Kennedy, Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, with whom JUSTICE KENNEDY joins, concurring.

I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed-“contrary to contemporary standards of decency,” post, at 430 (dissenting opinion) (relying on Ford v. Wainwright, 477 U. S. 399, 406 (1986)), “shocking to the conscience,” post, at 430 (relying on Rochin v. California, 342 U. S. 165, 172 (1952)), or offensive to a ‘” “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,”‘” ante, at 407-408 (opinion of the Court) (quoting Medina v. California, 505 U. S. 437, 445-446 (1992), in turn quoting Patterson v. New York, 432 U. S. 197,202 (1977))-the execution of a legally and factually innocent person would be a constitutionally intolerable event. Dispositive to this case, however, is an equally fundamental fact: Petitioner is not innocent, in any sense of the word.

As the Court explains, ante, at 398-400, petitioner is not innocent in the eyes of the law because, in our system of justice, “the trial is the paramount event for determining the guilt or innocence of the defendant,” ante, at 416. Accord, post, at 441 (dissenting opinion). In petitioner’s case, that paramount event occurred 10 years ago. He was tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants. At the conclusion of that

Antonin Scalia, Dissent, Federal Taxation

Hernandez v. Commissioner

Antonin Scalia, Dissent, Federal Taxation / By

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

The Court today acquiesces in the decision of the Internal Revenue Service (IRS) to manufacture a singular exception to its 70-year practice of allowing fixed payments indistinguishable from those made by petitioners to be deducted as charitable contributions. Because the IRS cannot constitutionally be allowed to select which religions will receive the benefit of its past rulings, I respectfully dissent.

The cases before the Court have an air of artificiality about them that is due to the IRS’ dual litigation strategy against the Church of Scientology (Church). As the Court notes, ante at 490 U. S. 686 -687, n. 4, the IRS has successfully argued that the mother Church of Scientology was not a tax-exempt organization from 1970 to 1972 because it had diverted profits to the founder of Scientology and others, conspired to impede collection of its taxes, and conducted almost all of its activities for a commercial purpose. See Church of Scientology of California v. Commissioner, 83 T.C. 381 (1984), aff’d, 823 F.2d 1310 (CA9 1987), cert. denied, 486 U. S. 1015 (1988). In the cases before the Court today, however, the IRS decided to contest the payments made to Scientology under 26 U.S.C. § 170 rather than challenge the tax-exempt status of the various branches of the Church to which the payments were made. According to the Deputy Solicitor General, the IRS challenged the payments themselves in order to expedite matters.

Due Process, Partial concurrence, partial dissent

Heller v. Doe

Due Process, Partial concurrence, partial dissent / By

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

I agree with JUSTICE SOUTER that Kentucky’s differential standard of proof for committing the mentally ill and the mentally retarded is irrational and therefore join Part II of his opinion. I conclude, however, that there is a rational basis for permitting close relatives and guardians to participate as parties in proceedings to commit the mentally retarded but not the mentally ill. As the Court points out, there are sufficiently plausible and legitimate reasons for the legislative determination in this area. I also agree with the Court that allowing guardians and immediate family members to participate as parties in commitment proceedings does not violate procedural due process. Like my colleagues, I would not reach the question whether heightened equal protection scrutiny should be applied to the Kentucky scheme.

Byron White, Criminal Procedure, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist

Heath v. Alabama

Byron White, Criminal Procedure, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The question before the Court is whether the Double Jeopardy Clause of the Fifth Amendment bars Alabama from trying petitioner for the capital offense of murder during a kidnaping after Georgia has convicted him of murder based on the same homicide. In particular, this case presents the issue of the applicability of the dual sovereignty doctrine to successive prosecutions by two States.

I

In August, 1981, petitioner, Larry Gene Heath, hired Charles Owens and Gregory Lumpkin to kill his wife, Rebecca Heath, who was then nine months pregnant, for a sum of $2,000. On the morning of August 31, 1981, petitioner left the Heath residence in Russell County, Alabama, to meet with Owens and Lumpkin in Georgia, just over the Alabama border from the Heath home. Petitioner led them back to the Heath residence, gave them the keys to the Heaths’ car and house, and left the premises in his girlfriend’s truck. Owens and Lumpkin then kidnaped Rebecca Heath from her home. The Heath car, with Rebecca Heath’s body inside, was later found on the side of a road in Troup County, Georgia. The cause of death was a gunshot wound in the head. The estimated time of death and the distance from the Heath residence to the spot where Rebecca Heath’s body was found are consistent with the theory that the murder took place in Georgia, and respondent does not contend otherwise.

Georgia and Alabama authorities pursued dual investigations in which they cooperated

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.

Antonin Scalia, Concurrence, Criminal Procedure, William Rehnquist

Harris v. Reed

Antonin Scalia, Concurrence, Criminal Procedure, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring.

I join the Court’s opinion, and am in general agreement with its decision to apply the “plain statement” rule of Michigan v. Long, 463 U. S. 1032 (1983), to the state courts’ invocation of state procedural default rules. I write separately to emphasize two points. First, I do not read the Court’s opinion as addressing or altering the well-settled rule that the lower federal courts, and this Court, may properly inquire into the availability of state remedies in determining whether claims presented in a petition for federal habeas corpus have been properly exhausted in the state courts. See Humphrey v. Cady, 405 U. S. 504, 405 U. S. 515 -517 (1972); Ex parte Hawk, 321 U. S. 114, 321 U. S. 118 (1944).

In 28 U.S.C. § 2254(b), Congress has provided that a writ of habeas corpus

shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

The exhaustion requirement is not satisfied if the habeas petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). Thus, in determining whether a remedy for a particular constitutional claim is “available,” the federal courts are authorized, indeed required,

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Harris v. Alabama

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner’s argument that Alabama’s capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury’s recommendation and thus permits arbitrary imposition of the death penalty.