Concurrence, David Souter, First Amendment, Stephen Breyer, William Rehnquist

44 Liquormart Inc. v. Rhode Island

Concurrence, David Souter, First Amendment, Stephen Breyer, William Rehnquist / By

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

Rhode Island prohibits advertisement of the retail price of alcoholic beverages, except at the place of sale. The State’s only asserted justification for this ban is that it promotes temperance by increasing the cost of alcoholic beverages. Brief for Respondent State of Rhode Island 22. I agree with the Court that Rhode Island’s price-advertising ban is invalid. I would resolve this case more narrowly, however, by applying our established Central Hudson test to determine whether this commercial speech regulation survives First Amendment scrutiny.

Under that test, we first determine whether the speech at issue concerns lawful activity and is not misleading, and whether the asserted governmental interest is substantial. If both these conditions are met, we must decide whether the regulation “directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Central Hudson Gas & Elec. Corp. v. Public Servo Comm’n of N. Y., 447 U. S. 557, 566 (1980).

Given the means by which this regulation purportedly serves the State’s interest, our conclusion is plain: Rhode Island’s regulation fails First Amendment scrutiny.

Both parties agree that the first two prongs of the Central Hudson test are met. Even if we assume, arguendo, that Rhode Island’s regulation also satisfies the requirement that it directly

Dissent, Economic Activity, William Rehnquist

324 Liquor Corp. v. Duffy

Dissent, Economic Activity, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

Immediately after the ratification of the Twenty-first Amendment, this Court recognized that the broad language of § 2 of the Amendment conferred plenary power on the States to regulate the liquor trade within their boundaries. Ziffrin, Inc. v. Reeves, 308 U. S. 132 (1939); Finch & Co. v. McKittrick, 305 U. S. 395 (1939); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U. S. 391 (1939); State Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). As JUSTICE STEVENS recently observed, however, the Court has, over the years, so “completely distorted the Twenty-first Amendment” that “[i]t now has a barely discernible effect in Commerce Clause cases.” Newport v. Iacobucci, ante, at 479 U. S. 98 (dissenting). Because I believe that the Twenty-first Amendment clearly authorized the State of New York to regulate the liquor trade within its borders free of federal interference, I dissent from Part III of the Court’s opinion, and would affirm the judgment of the New York Court of Appeals.

I

In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324 (1964), this Court took a first step toward eviscerating the authority of States to regulate the commerce of liquor. The Court held that the State of New York could not regulate the importation of liquor into that State when the liquor was sold in duty-free shops at the Kennedy Airport. The basis for this decision was the fact that the United States Customs Service

Antonin Scalia, Dissent, Due Process, William Rehnquist

Board of Pardons v. Allen

Antonin Scalia, Dissent, Due Process, William Rehnquist / By

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

Relying on semantics and ignoring altogether the sweeping discretion granted to the Board of Pardons by Montana law, the Court today concludes that respondents had a legitimate expectation of parole sufficient to give rise to an interest protected by procedural due process. Because I conclude that the discretion accorded the Board of Pardons belies any reasonable claim of entitlement to parole, I respectfully dissent.

In Board of Regents v. Roth, 408 U. S. 564 (1972), this Court observed that, to have a protected interest, one

clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Id. at 408 U. S. 577. Applying these principles, the Roth Court found that a teacher had no property interest in a renewal of his 1-year contract despite the fact that most teachers hired on a year-to-year basis by the university were rehired. Id. at 408 U. S. 578, n. 16. The Court concluded that the teacher had no legitimate entitlement to continued employment because the discretion of the university officials to renew or not renew such a contract was subject to no “cause” limitations.

The Roth decision teaches that a mere expectation of a benefit -even if that expectation is supported by consistent government practice -is not sufficient to create an interest protected by procedural due

David Souter, Dissent, Privacy

Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls

David Souter, Dissent, Privacy / By

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

I dissented in Vernonia School Dist. J,7J v. Acton, 515 U. S. 646 (1995), and continue to believe that case was wrongly decided. Because Vernonia is now this Court’s precedent, and because I agree that petitioners’ program fails even under the balancing approach adopted in that case, I join JUSTICE GINSBURG’S dissent.

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, Majority, William Rehnquist

Board of Comm’rs of Bryan Cty. v. Brown

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. Respondent Jill Brown brought a claim for damages against petitioner Bryan County under Rev. Stat. § 1979, 42 U. S. C. § 1983. She alleged that a county police officer used

*Briefs of amici curiae urging reversal were filed for the City of New York by Paul A. Crotty, Leonard J. Koerner, and John Hogrogian; for the National Association of Counties et al. by Richard Ruda, James I. Crowley, and Donald B. Ayer; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.

Ogden N. Lewis, James D. Liss, Vincent T. Chang, Michele S. Warman, and Martha Davis filed a brief for the NOW Legal Defense and Education Fund et al. as amici curiae urging affirmance. excessive force in arresting her, and that the county itself was liable for her injuries based on its sheriff’s hiring and training decisions. She prevailed on her claims against the county following a jury trial, and the Court of Appeals for the Fifth Circuit affirmed the judgment against the county on the basis of the hiring claim alone. 67 F.3d 1174 (1995). We granted certiorari. We conclude that the Court of Appeals’ decision cannot be squared with our recognition that, in enacting § 1983, Congress did not intend to impose liability on a municipality unless deliberate action attributable to the municipality itself is the “moving force” behind the plaintiff’s deprivation of federal rights. Monell v. New York City Dept. of Social Servs., 436 U. S. 658,

Byron White, Harry Blackmun, Judicial Power, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Block v. Commun. Nutrition Inst

Byron White, Harry Blackmun, Judicial Power, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the question whether ultimate consumers of dairy products may obtain judicial review of milk market orders issued by the Secretary of Agriculture (Secretary) under the authority of the Agricultural Marketing Agreement Act of 1937 (Act), ch. 296, 50 Stat. 246, as amended, 7 U.S.C. § 601 et seq. We conclude that consumers may not obtain judicial review of such orders.

I

A

In the early 1900’s, dairy farmers engaged in intense competition in the production of fluid milk products. See Zuber v. Allen, 396 U. S. 168, 396 U. S. 172 -176 (1969). To bring this destabilizing competition under control, the 1937 Act authorizes the Secretary to issue milk market orders setting the minimum prices that handlers (those who process dairy products) must pay to producers (dairy farmers) for their milk products. 7 U.S.C. § 608c. The “essential purpose [of this milk market order scheme is] to raise producer prices,” S.Rep. No. 1011, 74th Cong., 1st Sess., 3 (1935), and thereby to ensure that the benefits and burdens of the milk market are fairly and proportionately shared by all dairy farmers. See Nebba v. New York, 291 U. S. 502, 291 U. S. 517 -518 (1934).

Under the scheme established by Congress, the Secretary must conduct an appropriate rulemaking proceeding before issuing a milk market order. The public must be notified of these proceedings and provided an opportunity for public hearing and comment. See 7 U.S.C. § 608c(3).

Dissent, Federalism

Block v. Board of School Lands

Dissent, Federalism / By

JUSTICE O’CONNOR, dissenting.

I agree with the Court that the sole remedy available to North Dakota is an action under the Quiet Title Act. Having concluded that Congress has permitted such suits, though, I would not reject the usual rule that statutes of limitation do not bar a sovereign, a rule that is especially appropriate in the context of these cases. Consequently, I dissent.

Since the Quiet Title Act is the sole relief available to North Dakota, we confront the question whether Congress intended the statute of limitations to bar actions by States. The Court resolves the question by invocation of the principle that waivers of sovereign immunity are to be strictly construed. See ante at 461 U. S. 287. [ Footnote 2/1 ] The question is not that simple.

Although it is indeed true that the Court construes waivers of sovereign immunity strictly, that principle of statutory construction is no more than an aid in the task of determining congressional intent. In a close case, it may help the Court choose between two equally plausible constructions. It cannot, however, grant the Court authority to narrow judicially the waiver that Congress intended. United States v. Kubrick, 444 U. S. 111, 444 U. S. 118 (1979); Indian Towing Co. v. United States, 350 U. S. 61, 350 U. S. 69 (1955). The mere observation that a statute waives sovereign immunity, then, cannot resolve questions of construction. The Court still must consider all indicia of congressional intent. Considering all the evidence,

Economic Activity, John Paul Stevens, Partial concurrence, partial dissent

BFI Inc. v. Kelco Disposal Inc

Economic Activity, John Paul Stevens, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part.

Awards of punitive damages are skyrocketing. As recently as a decade ago, the largest award of punitive damages affirmed by an appellate court in a products liability case was $250,000. See Owen, Punitive Damages in Products Liability Litigation, 74 Mich.L.Rev. 1257, 1329-1332 (1976). Since then, awards more than 30 times as high have been sustained on appeal. See Ford Motor Co. v. Durrill, 714 S. W. 2d 329 (Tex. App. 1986) ($10 million); Ford Motor Co. v. Stubblefeld, 171 Ga. App. 331, 319 S. E. 2d 470 (1984) ($8 million); Palmer v. A. H. Robins Co., 684 P. 2d 187 (Colo. 1984) ($6.2 million). The threat of such enormous awards has a detrimental effect on the research and development of new products. Some manufacturers of prescription drugs, for example, have decided that it is better to avoid uncertain liability than to introduce a new pill or vaccine into the market. See, e.g., Brief for Pharmaceutical Manufacturers Association et. al. as Amici Curiae 5-23. Similarly, designers of airplanes and motor vehicles have been forced to abandon new projects for fear of lawsuits that can often lead to awards of punitive damages. See generally P. Huber, Liability: The Legal Revolution and Its Consequences 152-171 (1988).

The trend toward multimillion dollar awards of punitive damages is exemplified by this case. A Vermont jury found that Browning-Ferris Industries, Inc. (BFI), tried to monopolize

Byron White, Federalism, Harry Blackmun, Majority, Warren Burger, William Brennan, William Rehnquist

Bennett v. New Jersey

Byron White, Federalism, Harry Blackmun, Majority, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The issue presented is whether substantive provisions of the 1978 Amendments to Title I of the Elementary and Secondary Education Act apply retroactively for determining if Title I funds were misused during the years 1970-1972. This case was previously before the Court, and we then held that the Federal Government may recover misused funds from States that provided assurances that federal grants would be spent only on eligible programs. Bell v. New Jersey, 461 U. S. 773 (1983). We expressly declined, however, to address the retroactive effect of substantive provisions of the 1978 Amendments. Id. at 461 U. S. 781, n. 6, 461 U. S. 782, and n. 7. On remand from our decision, the Court of Appeals for the Third Circuit held that the standards of the 1978 Amendments should apply to determine if funds were improperly expended in previous years. State of New Jersey, Dept. of Ed. v. Hufstedler, 724 F.2d 34 (1983). We granted certiorari, 469 U.S. 815 (1984), and we now reverse.

I

Title I of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 241a et seq. (1976 ed.), provided federal grants-in-aid to support compensatory education for disadvantaged children in low-income areas. [ Footnote 1 ] Based on the theory that poverty and low scholastic achievement are closely related, Title I allocated funds to local school districts based on their numbers of impoverished children and the State’s

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

Bennett v. Kentucky DOE

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

JUSTICE O’CONNOR delivered the opinion of the Court.*

This case, like Bennett v. New Jersey, ante p. 470 U. S. 632, concerns an effort by the Federal Government to recover Title I funds that were allegedly misused by a State. There is no contention here that changes in statutory provisions should apply to previous grants. Instead, the dispute is whether the Secretary correctly demanded repayment based on a determination that Kentucky violated requirements that Title I funds be used to supplement, and not to supplant, state and local expenditures for education. Although the Court of Appeals for the Sixth Circuit found that the Secretary’s determination was based on a reasonable interpretation of Title I and its implementing regulations, the court nonetheless excused the State from repayment on the grounds that there was no evidence of bad faith and the State’s programs complied with a reasonable interpretation of the law. Kentucky v. Secretary of Education, 717 F.2d 943, 948 (1983). We granted certiorari, 469 U.S. 814 (1984), and because we disagree with the standard adopted by the Court of Appeals, we reverse.

I

As explained more fully in Bennett v. New Jersey, ante at 470 U. S. 634 -636, Title I of the Elementary and Secondary Education Act of 1965, Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 2701 et seq., provided federal grants to support compensatory education programs for disadvantaged children. In order to assure that federal funds would be used to support additional