Concurrence, Economic Activity

Ohio v. Kovacs

Concurrence, Economic Activity / By

JUSTICE O’CONNOR, concurring.

I join the Court’s opinion and agree with its holding that the cleanup order has been reduced to a monetary obligation dischargeable as a “claim” under § 727 of the Bankruptcy Code. I write separately to address the petitioner’s concern that the Court’s action will impede States in enforcing their environmental laws.

To say that Kovacs’ obligation in these circumstances is a claim dischargeable in bankruptcy does not wholly excuse the obligation or leave the State without any recourse against Kovacs’ assets to enforce the order. Because “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” Butner v. United States, 440 U. S. 48, 440 U. S. 54 (1979), the classification of Ohio’s interest as either a lien on the property itself, a perfected security interest, or merely an unsecured claim depends on Ohio law. That classification -a question not before us -generally determines the priority of the State’s claim to the assets of the estate relative to other creditors. Cf. 11 U.S.C. § 545 (trustee may avoid statutory liens only in specified circumstances). Thus, a State may protect its interest in the enforcement of its environmental laws by giving cleanup judgments the status of statutory liens or secured claims.

The Court’s holding that the cleanup order was a “claim” within the meaning of § 101(4) also avoids potentially adverse consequences for a State’s enforcement of its order when

Concurrence, David Souter, Due Process, Ruth Bader Ginsburg, Stephen Breyer

Ohio Adult Parole Authority v. Woodard

Concurrence, David Souter, Due Process, Ruth Bader Ginsburg, Stephen Breyer / By

JUSTICE O’CONNOR, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, concurring in part and concurring in the judgment.

A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright, 477 U. S. 399, 429 (1986) (O’CONNOR, J., concurring in result in part and dissenting in part). I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. THE CHIEF JUSTICE’S reasoning rests on our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), and Greenholtz v. Inmates of Neb. Penal and Correctional Com plex, 442 U. S. 1 (1979). In those cases, the Court found that an inmate seeking commutation of a life sentence or discre tionary parole had no protected liberty interest in release from lawful confinement. When a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished. But it is incorrect, as JUSTICE STEVENS’ dissent notes, to say that a prisoner

Antonin Scalia, Concurrence, Judicial Power

Rogers v. United States

Antonin Scalia, Concurrence, Judicial Power / By

JUSTICE O’CONNOR, with whom JUSTICE SCALIA joins, concurring in the result.

As the plurality points out, we granted certiorari to address an important issue of constitutional law, and we ought not to decide the question if it has not been cleanly presented. In my view, it is sufficient to dismiss the writ that the instructions tendered by the District Court were ambiguous on whether the jury was asked to find, as is required by Staples v. United States, 511 U. S. 600 (1994), that petitioner “knew that the item he possessed was a silencer,” ante, at 257. As a result, it is at least unclear whether the question we intended to address in this case-whether a district court’s failure to instruct the jury on an element of an offense is harmless error where, at trial, the defendant admitted that element-is squarely presented. For that reason, I concur in the dismissal of the writ as improvidently granted. I share the plurality’s concern, ante this page, n. 7, that trial courts should structure their instructions in cases implicating Staples in a way that prevents the possible interpretation identified by JUSTICE KENNEDY in his dissent.

Notes

7 Of course, if the instruction merely required the jury to find that the defendant knowingly possessed a canvas bag, or knowingly possessed a dangerous item that might not have had the characteristics of a silencer, it would not have complied with Staples. Our disposition is based on our view that the instruction required the jury to find that

Concurrence, First Amendment

Roberts v. United States Jaycees

Concurrence, First Amendment / By

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

I join Parts I and III of the Court’s opinion, which set out the facts and reject the vagueness and overbreadth challenges to the Minnesota statute. With respect to Part II-A of the Court’s opinion, I agree with the Court that the Jaycees cannot claim a right of association deriving from this Court’s cases concerning “marriage, procreation, contraception, family relationships, and child rearing and education.” Paul v. Davis, 424 U. S. 693, 424 U. S. 713 (1976). Those cases, “while defying categorical description,” ibid., identify certain zones of privacy in which certain personal relationships or decisions are protected from government interference. Whatever the precise scope of the rights recognized in such cases, they do not encompass associational rights of a 295,000-member organization whose activities are not “private” in any meaningful sense of that term.

I part company with the Court over its First Amendment analysis in Part II-B of its opinion. I agree with the Court that application of the Minnesota law to the Jaycees does not contravene the First Amendment, but I reach that conclusion for reasons distinct from those offered by the Court. I believe the Court has adopted a test that unadvisedly casts doubt on the power of States to pursue the profoundly important goal of ensuring nondiscriminatory access to commercial opportunities in our society. At the same time, the Court has adopted an approach

Concurrence, Due Process

Rivera v. Minnich

Concurrence, Due Process / By

JUSTICE O’CONNOR, concurring in the judgment.

I believe that the judgment of the Pennsylvania Supreme Court should be affirmed for the reasons set forth by JUSTICE REHNQUIST in dissent in Santosky v. Kramer, 455 U. S. 745, 455 U. S. 770 -791 (1982).

Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements.

United States v. Yazell, 382 U. S. 341, 382 U. S. 352 (1966). Particularly in light of that special solicitude, I cannot find that the flexible concept of due process, Santosky v. Kramer, supra, at 455 U. S. 774 -776 (REHNQUIST, J., dissenting), bars Pennsylvania from providing that the litigants to a civil paternity suit are to bear the risk of factual error in roughly equal fashion. I do not find it necessary to this conclusion to rely upon the fact that the majority of American jurisdictions apply the same rule as Pennsylvania does. Cf. ante at 483 U. S. 577 -578. Nor do I agree that the differences between termination and paternity proceedings are substantial enough to justify the different conclusion reached in Santosky. Accordingly, I concur in the Court’s judgment, but not its opinion.

Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist

Rice v. Rehner

Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The question presented by this case is whether the State of California may require a federally licensed Indian trader, who operates a general store on an Indian reservation, to obtain a state liquor license in order to sell liquor for off-premises consumption. Because we find that Congress has delegated authority to the States as well as to the Indian tribes to regulate the use and distribution of alcoholic beverages in Indian country, [ Footnote 1 ] we reverse the judgment of the Court of Appeals for the Ninth Circuit.

I

The respondent Rehner is a federally licensed Indian trader [ Footnote 2 ] who operates a general store on the Pala Reservation in San Diego, Cal. The Pala Tribe had adopted a tribal ordinance permitting the sale of liquor on the reservation providing that the sales conformed to state law, and this ordinance was approved by the Secretary of the Interior. See 25 Fed.Reg. 3343 (1960). Rehner then sought from the State an exemption from its law requiring a state license for retail sale of distilled spirits for off-premises consumption. [ Footnote 3 ] When she was refused an exemption, Rehner filed suit seeking a declaratory judgment that she did not need a license from the State, and an order directing that liquor wholesalers could sell to her. The District Court granted the State’s motion to dismiss, ruling that Rehner was required to have a state license under 18 U.S.C. § 1161, which provides that liquor

Concurrence, First Amendment

Republican Party of Minn. v. White

Concurrence, First Amendment / By

JUSTICE O’CONNOR, concurring.

I join the opinion of the Court but write separately to express my concerns about judicial elections generally. Respondents claim that “[t]he Announce Clause is necessary… to protect the State’s compelling governmental interes[t] in an actual and perceived… impartial judiciary.” Brief for Respondents 8. I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest.

We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994) (quoting former California Supreme Court Justice Otto Kaus’ statement that ignoring the political consequences of visible decisions is “‘like ignoring a crocodile in your bathtub’ “); Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B. U. L. Rev. 759, 793-794 (1995) (citing statistics indicating that judges who face elections

Civil Rights, Concurrence, David Souter

Reno v. Flores

Civil Rights, Concurrence, David Souter / By

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

I join the Court’s opinion and write separately simply to clarify that in my view these children have a constitutionally protected interest in freedom from institutional confinement. That interest lies within the core of the Due Process Clause, and the Court today does not hold otherwise. Rather, we reverse the decision of the Court of Appeals because the INS program challenged here, on its face, complies with the requirements of due process.

“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha v. Louisiana, 504 U. S. 71, 80 (1992). “Freedom from bodily restraint” means more than freedom from handcuffs, straitjackets, or detention cells. A person’s core liberty interest is also implicated when she is confined in a prison, a mental hospital, or some other form of custodial institution, even if the conditions of confinement are liberal. This is clear beyond cavil, at least where adults are concerned. “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf-through incarceration, institutionalization, or other similar restraint of personal liberty-which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause…. ” De Shaney v. Winnebago County Dept. of Social Services, 489 U. S. 189, 200 (1989). The institutionaliz

Concurrence, Judicial Power

Reno v. Catholic Social Services Inc

Concurrence, Judicial Power / By

JUSTICE O’CONNOR, concurring in the judgment.

I agree that the District Courts in these two cases, Reno v. Catholic Social Services, Inc. (CSS), and INS v. League of United Latin American Citizens (LULAC), erred in extending the application period for legalization beyond May 4, 1988, the end of the 12-month interval specified by the Immigration Reform and Control Act of 1986. I would not, however, reach this result on ripeness grounds. The Court holds that a member of the plaintiff class in CSS or LULAC who failed to apply to the INS during the 12-month period does not now have a ripe claim to extend the application deadline. In my view, that claim became ripe after May 4, 1988, even if it was not ripe before. The claim may well lack merit, but it is no longer premature.

The Court of Appeals did not consider the problem of ripeness, and the submissions to this Court have not discussed that problem except in passing. See Pet. for Cert. 11, n. 13; Brief for Petitioners 20; Brief for Respondents 17, n. 23. Rather, certiorari was granted on two questions, to which the parties rightly have adhered: first, whether the District Courts had jurisdiction under 8 U. S. C. § 1255a(f), the judicial-review provision of Title II of the Reform Act; and second, whether the courts properly extended the application period. See Pet. for Cert. 1. The Court finds the jurisdictional challenge meritless under McNary v. Haitian Refugee Center, Inc., 498 U. S. 479 (1991), see ante, at 53-56, as do 1.

First Amendment, Partial concurrence, partial dissent, William Rehnquist

Reno v. American Civil Liberties Union

First Amendment, Partial concurrence, partial dissent, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part.

I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster.

Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the “indecency transmission” provision, makes it a crime to knowingly transmit an obscene or indecent message or image to a person the sender knows is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). What the Court classifies as a single” ‘patently offensive display'” provision, see ante, at 859, is in reality two separate provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of 18 (“specific person” provision). § 223(d)(1)(A). The second criminalizes the display of patently offensive messages or images “in a[ny] manner available” to minors (“display” provision). § 223(d)(1)(B). None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have