Civil Rights, Concurrence

Arizona Governing Comm. v. Norris

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring.

This case requires us to determine whether Title VII prohibits an employer from offering an annuity plan in which the participating insurance company uses sex-based tables for calculating monthly benefit payments. It is important to stress that our judicial role is simply to discern the intent of the 88th Congress in enacting Title VII of the Civil Rights Act of 1964, [ Footnote 3/1 ] a statute covering only discrimination in employment. What we, if sitting as legislators, might consider wise legislative policy is irrelevant to our task. Nor, as JUSTICE MARSHALL notes, ante at 463 U. S. 1078 -1079, n. 4, do we have before us any constitutional challenge. Finally, our decision must ignore (and our holding has no necessary effect on) the larger issue of whether considerations of sex should be barred from all insurance plans, including individual purchases of insurance, an issue that Congress is currently debating. See S. 372, 98th Cong., 1st Sess. (1983); H.R. 100, 98th Cong., 1st Sess. (1983).

Although the issue presented for our decision is a narrow one, the answer is far from self-evident. As with many other narrow issues of statutory construction, the general language chosen by Congress does not clearly resolve the precise question. Our polestar, however, must be the intent of Congress, and the guiding lights are the language, structure, and legislative history of Title VII. Our inquiry is made somewhat easier by the fact that this Court, in

Concurrence, First Amendment, John Paul Stevens

Arcara v. Cloud Books Inc

Concurrence, First Amendment, John Paul Stevens / By

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

I agree that the Court of Appeals erred in applying a First Amendment standard of review where, as here, the government is regulating neither speech nor an incidental, nonexpressive effect of speech. Any other conclusion would lead to the absurd result that any government action that had some conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment. If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review. Because there is no suggestion in the record or opinion below of such pretextual use of the New York nuisance provision in this case, I concur in the Court’s opinion and judgment.

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Criminal Procedure, David Souter, Majority, William Rehnquist

Arave v. Creech

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Criminal Procedure, David Souter, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” Idaho Code § 19-2515(g)(6) (1987). The sole question we must decide is whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.

I

The facts underlying this case could not be more chilling.

Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims-who were shot, stabbed, beaten, or strangled to death-have been recovered in seven States. Creech has said repeatedly that, unless he is completely isolated from humanity, he likely will continue killing. And he has identified by name three people outside prison walls he intends to kill if given the opportunity.

Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech’s junior, was a nonviolent car thief. He was also physically

Dissent, Economic Activity, Lewis Powell, William Rehnquist

Amer. Trucking Assns. v. Scheiner

Dissent, Economic Activity, Lewis Powell, William Rehnquist / By

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

In finding Pennsylvania’s “flat” highway use taxes unconstitutional under the Commerce Clause, the Court today directly overrules the holdings of at least three cases: Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950); Aero Mayflower Transit Corp. v. Board of Railroad Comm’rs, 332 U. S. 495 (1947); and Aero Mayflower Transit Co. v. Georgia Public Service Comm’n, 295 U. S. 285 (1935). These cases were apparently cited with approval as recently as Massachusetts v. United States, 435 U. S. 444, 435 U. S. 463 -464 (1978), and Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U. S. 707, 405 U. S. 715 -717 (1972). In Massachusetts, the opinion states:

[W]e turn to consider the Commonwealth’s argument that § 4491 should not be treated as a user fee, because the amount of the tax is a flat annual fee, and hence is not directly related to the degree of use of the airways. This argument has been confronted and rejected in analogous contexts. Capitol Greyhound Lines v. Brice, 339 U. S. 542 (1950) is illustrative…. Noting that the tax ‘should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted,’ id. at 339 U. S. 545, the Court rejected the carrier’s argument: Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensationfor road use. These factors,

Anthony Kennedy, Byron White, Economic Activity, Majority, William Rehnquist

American Trucking Ass’ns v. Smith

Anthony Kennedy, Byron White, Economic Activity, Majority, William Rehnquist / By

Justice O’CONNOR announced the judgment of the Court, and delivered an opinion in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.

In this case, we decide whether our decision in American Trucking Assns, Inc. v. Scheiner, 483 U. S. 266 (1987), applies retroactively to taxation of highway use prior to the date of that decision.

I

In 1983, petitioners brought suit in the Chancery Court of Pulaski County, Arkansas, challenging the constitutionality of the newly enacted Arkansas Highway Use Equalization Tax Act (HUE), 1983 Ark.Gen. Acts, No. 685, Ark.Code Ann. §§ 27-35204, 27-35-205 (1987) (formerly codified as Ark.Stat.Ann. §§ 75-817.2, 75-817.3 (Supp. 1985)), under the Commerce Clause of the Federal Constitution. Art. I, § 8, cl. 3. The HUE tax required trucks operating on Arkansas highways with a gross weight between 73,281 and 80,000 pounds to pay either an annual flat tax of $175 or a tax of 5c per mile traveled in Arkansas or a trip permit fee of $8 per 100 miles. Effectively, HUE taxed only the first 3,500 miles of annual highway use by heavy trucks, that being the point at which it became advantageous to pay the flat tax of $175. Because trucks based in Arkansas were likely to travel many more miles on the State’s highways than heavy trucks based out of the State, petitioners argued that HUE impermissibly discriminated against interstate commerce by imposing on out-of-state truckers greater per-mile costs than those imposed on in-state truckers. To remedy

Clarence Thomas, Dissent, Economic Activity, Harry Blackmun, William Rehnquist

Allied-Signal Inc. v. Director Div. of Taxation

Clarence Thomas, Dissent, Economic Activity, Harry Blackmun, William Rehnquist / By

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

In my view, petitioner has not shown by “clear and cogent evidence” that its investment in ASARCO was not operationally related to the aerospace business petitioner conducted in New Jersey. Exxon Corp. v. Department of Reve nue of Wis., 447 U. S. 207, 221 (1980) (internal quotation marks omitted). Though I am largely in agreement with the Court’s analysis, I part company on the application of it here.

I agree with the Court that we cannot adopt New Jersey’s suggestion that the unitary business principle be replaced by a rule allowing a State to tax a proportionate share of all the income generated by any corporation doing business there. See ante, at 784. Were we to adopt a rule allowing taxation to depend upon corporate identity alone, as New Jersey suggests, the entire due process inquiry would become fictional, as the identities of corporations would fracture in a corporate shell game to avoid taxation. Under New Jersey’s theory, for example, petitioner could avoid having its ASARCO investment taxed in New Jersey simply by establishing a separate subsidiary to hold those earnings outside New Jersey. A constitutional principle meant to ensure that States tax only business activities they can reasonably claim to have helped support should depend on something more than manipulations of corporate structure. See Mobil Oil Corp. v. Commissioner of Taxes of Vt., 445 U. S. 425,

Concurrence, Federalism

Allied-Bruce Terminix Cos. v. Dobson

Concurrence, Federalism / By

JUSTICE O’CONNOR, concurring.

I agree with the Court’s construction of § 2 of the Federal Arbitration Act. As applied in federal courts, the Court’s interpretation comports fully with my understanding of congressional intent. A more restrictive definition of “evidencing” and “involving” would doubtless foster pre arbitration litigation that would frustrate the very purpose of the statute. As applied in state courts, however, the effect of a broad formulation of § 2 is more troublesome. The reading of § 2 adopted today will displace many state statutes carefully calibrated to protect consumers, see, e. g., Mont. Code Ann. § 27-5-114(2)(b) (1993) (refusing to enforce arbitration clauses in consumer contracts where the consideration is $5,000 or less), and state procedural requirements aimed at ensuring knowing and voluntary consent, see, e. g., S. C. Code Ann. § 15-48-10(a) (Supp. 1993) (requiring that notice of arbitration provision be prominently placed on first page of contract). I have long adhered to the view, discussed below, that Congress designed the Federal Arbitration Act to apply only in federal courts. But if we are to apply the Act in state courts, it makes little sense to read § 2 differently in that context. In the end, my agreement with the Court’s construction of § 2 rests largely on the wisdom of maintaining a uniform standard. I continue to believe that Congress never intended the Federal Arbitration Act to apply in state courts, and that this Court has strayed

Byron White, Judicial Power, Lewis Powell, Majority, Warren Burger, William Rehnquist

Allen v. Wright

Byron White, Judicial Power, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Parents of black public school children allege in this nationwide class action that the Internal Revenue Service (IRS) has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. They assert that the IRS thereby harms them directly and interferes with the ability of their children to receive an education in desegregated public schools. The issue before us is whether plaintiffs have standing to bring this suit. We hold that they do not.

I

The IRS denies tax-exempt status under §§ 501(a) and (c)(3) of the Internal Revenue Code, 26 U.S.C. §§ 501(a) and (c)(3) -and hence eligibility to receive charitable contributions deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Code, 26 U.S.C. §§ 170(a)(1) and (c)(2) -to racially discriminatory private schools. Rev.Rul. 71-447, 1971-2 Cum.Bull. 230. [ Footnote 1 ] The IRS policy requires that a school applying for tax-exempt status show that it

admits the students of any race to all the rights, privileges, programs, and activities generally accorded or made available to students at that school and that the school does not discriminate on the basis of race in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs.

Ibid. To carry out this policy, the IRS has established guidelines and procedures

Byron White, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Air France v. Saks

Byron White, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Article 17 of the Warsaw Convention [ Footnote 1 ] makes air carriers liable for injuries sustained by a passenger

if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

We granted certiorari, 469 U.S. 815 (1984), to resolve a conflict among the Courts of Appeals as to the proper definition of the word “accident” as used in this international air carriage treaty.

I

On November 16, 1980, respondent Valerie Saks boarded an Air France jetliner in Paris for a 12-hour flight to Los Angeles. The flight went smoothly in all respects until, as the aircraft descended to Los Angeles, Saks felt severe pressure and pain in her left ear. The pain continued after the plane landed, but Saks disembarked without informing any Air France crew member or employee of her ailment. Five days later, Saks consulted a doctor, who concluded that she had become permanently deaf in her left ear.

Saks filed suit against Air France in California state court, alleging that her hearing loss was caused by negligent maintenance and operation of the jetliner’s pressurization system. App. 2. The case was removed to the United States District Court for the Central District of California. After extensive discovery, Air France moved for summary judgment on the ground that respondent could not prove that her injury was caused by an “accident” within the meaning

Anthony Kennedy, Antonin Scalia, Clarence Thomas, First Amendment, Majority, William Rehnquist

Agostini v. Felton

Anthony Kennedy, Antonin Scalia, Clarence Thomas, First Amendment, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In Aguilar v. Felton, 473 U. S. 402 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitionersthe parties bound by that injunction-seek relief from its operation. Petitioners maintain that Aguilar cannot be

tBriefs of amici curiae urging reversal were filed for the Becket Fund for Religious Liberty by Kevin J. Hasson; for the Christian Legal Society et al. by Michael W McConnell, Thomas C. Berg, Steven T. McFarland, Kimberlee Wood Colby, and Samuel B. Casey; for the Knights of Columbus by James W Shannon, Jr.; for the National Jewish Commission on Law and Public Mfairs by Nathan Lewin and Dennis Rapps; for Senator Robert F. Bennett by Ronald D. Maines; and for Sarah Peter et al. by Michael Joseph Woodruff and Scott J. Ward.

Briefs of amici curiae urging affirmance were filed for the American Jewish Congress et al. by Norman Redlich, Marc D. Stern, Marvin E. Frankel, David J. Strom, Richard T. Foltin, J. Brent Walker, Melissa Rogers, Robert Chanin, John West, Elliot M. Mincberg, and Judith E. Schaeffer; and for Americans United for Separation of Church and State et al.