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

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

Reich v. Collins

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

JUSTICE O’CONNOR delivered the opinion of the Court.

In a long line of cases, this Court has established that due process requires a “clear and certain” remedy for taxes collected in violation of federal law. Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 285 (1912) (Holmes, J.). A State has the flexibility to provide that remedy before the disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both. But what it may not do, and what Georgia did here, is hold out what plainly appears to be a “clear and certain” postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedyexists.

I

For many years, numerous States, including Georgia, exempted from state personal income tax retirement benefits paid by the State, but not retirement benefits paid by the Federal Government (or any other employer). In March 1989, this Court held that such a tax scheme violates the constitutional intergovernmental tax immunity doctrine, which dates back to McCulloch v. Maryland, 4 Wheat. 316 (1819), and has been generally codified at 4 U. S. C. § 111. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989).

In the aftermath of Davis, most of these States, Georgia included, repealed their special tax exemptions for state retirees, but few offered federal retirees any refunds for the unconstitutional taxes they had paid in the years before Davis was decided. Not surprisingly, a great deal of litigation ensued in

Antonin Scalia, Harry Blackmun, Majority, Unions, William Brennan, William Rehnquist

Regents of Univ. of Cal. v. PERB

Antonin Scalia, Harry Blackmun, Majority, Unions, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the question whether a state university’s delivery of unstamped letters from a labor union to university employees violates the Private Express Statutes, 18 U.S.C. §§ 1693-1699, 39 U.S.C. §§ 601-606. These statutes establish the postal monopoly, and generally prohibit the private carriage of letters over postal routes without the payment of postage to the United States Postal Service.

I

Appellant Regents govern a large state-owned university with over 100,000 employees. The university (hereafter referred to as appellant) operates an internal mail system to facilitate the delivery of mail to the various sites on its campuses. Appellant’s employees collect mail originating on the campuses from many mail depositories and take it to a central location for sorting. The mail is separated into three groups: (1) mail already bearing United States postage; (2) unstamped internal university mail; and (3) other unstamped mail. Group (1) is delivered to the Postal Service without further handling by appellant. Group (2) is monitored to ensure that it includes only official university mail. Group (3) is examined for any letters addressed to university destinations that come within an exception to the Private Express Statutes and can therefore be delivered by the appellant without postage. Appellant affixes United States postage to the remainder of mail in group (3) and delivers it to the Postal Service, then charges

Concurrence, Criminal Procedure

Ramdass v. Angelone

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring in the judgment.

In Simmons v. South Carolina, 512 U. S. 154 (1994), a majority of the Court held that “[w]here the State puts the defendant’s future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury… that he is parole ineligible.” Id., at 178 (O’CONNOR, J., concurring in judgment); see also id., at 163-164 (plurality opinion). Due process requires that “a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.”’ Id., at 175 (O’CONNOR, J., concurring in judgment) (quoting Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986)). Accordingly, where the State seeks to demonstrate that the defendant poses a future danger to society, he “should be allowed to bring his parole ineligibility to the jury’s attention” as a means of rebutting the State’s case. 512 U. S., at 177. I have no doubt that Simmons was rightly decided.

In this case, because petitioner seeks a writ of habeas corpus rather than the vacatur of his sentence on direct appeal, the scope of our review is governed by 28 U. S. C. § 2254(d)(1) (1994 ed., Supp. III). Accordingly, we may grant relief only if the Virginia Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United

David Souter, Dissent, Judicial Power, Ruth Bader Ginsburg, Stephen Breyer

Ragsdale v. Wolverine World Wide Inc

David Souter, Dissent, Judicial Power, Ruth Bader Ginsburg, Stephen Breyer / By

JUSTICE O’CONNOR, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.

The Court today holds that the Family and Medical Leave Act of 1993 (FMLA or Act), 29 U. S. C. § 2601 et seq. (1994 ed. and Supp. V), clearly precludes the Secretary of Labor from adopting a rule requiring an employer to give an em ployee notice that leave is FMLA qualifying before the leave may be counted against the employer’s 12-week obligation. Because I believe the Secretary is justified in requiring such individualized notice and because I think that nothing in the Act constrains the Secretary’s ability to secure compliance with that requirement by refusing to count the leave against the employer’s statutory obligation, I respectfully dissent.

I

I begin with the question the Court set aside, see ante, at 88, whether the Secretary was justified in requiring individualized notice at all. The FMLA gives the Secretary the notice and comment rulemaking authority to “prescribe such regulations as are necessary to carry out” the Act. 29 U. S. C. § 2654 (1994 ed.). In light of this explicit congressional delegation of rulemaking authority, we must uphold the Secretary’s regulations unless they are “arbitrary, capricious, or manifestly contrary to the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984).

The Secretary has reasonably determined that individualized notice is necessary to implement the FMLA’s provisions. According to

Concurrence, Criminal Procedure, Lewis Powell

Puerto Rico v. Branstad

Concurrence, Criminal Procedure, Lewis Powell / By

JUSTICE O’CONNOR, with whom JUSTICE POWELL joins, concurring in part and concurring in the judgment.

I join Parts I, II-A, II-C, and III of the Court’s opinion. Because the Court ultimately resolves this case under the Extradition Act, 18 U.S.C. § 3182, I do not find Part II-B, and its statements concerning the Extradition Clause of the Constitution, necessary to the decision of this case. Accordingly, I do not subscribe to that part of the Court’s opinion. See, e.g., Jean v. Nelson, 472 U. S. 846, 472 U. S. 854 (1985); Kolender v. Lawson, 461 U. S. 352, 461 U. S. 361, n. 10 (1983); Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring).

Clarence Thomas, Concurrence, Economic Activity

Public Lands Council v. Babbitt

Clarence Thomas, Concurrence, Economic Activity / By

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

I join the Court’s opinion. I write separately to make the following observations concerning the Court’s decision. First, in Part II-A, the Court holds that the Secretary did not exceed his authority under the Taylor Grazing Act by promulgating the new “grazing preference” and “permitted use” rules. I agree with that holding but would place special emphasis on the Court’s third reason for rejecting petitioners’ facial challenge to the regulations. Petitioners have not shown how the new regulations themselves-rather than specific actions the Secretary might take pursuant to those regulations-violate the Taylor Grazing Act’s requirement that “grazing privileges recognized and acknowledged… be adequately safeguarded.” 43 U. S. C. § 315b. It is of particular importance, as the Court notes, ante, at 743, that the Secretary has assured us that the new regulations do not in actual practice “alter the active use/suspended use formula in grazing permits” and that” ‘present suspended use would continue to be recognized and have a priority for additional grazing use within the allotment.'” Brief for Respondents 22 (quoting Bureau of Land Management, Rangeland Reform ’94: Final Environmental Impact Statement 144 (1994)). For these reasons, petitioners’ facial challenge to the regulations must fail. Should a permit holder find, however, that the Secretary’s specific application of the new regulations deviates from the above

Concurrence, Federalism

Printz v. United States

Concurrence, Federalism / By

JUSTICE O’CONNOR, concurring.

Our precedent and our Nation’s historical practices support the Court’s holding today. The Brady Act violates the Tenth Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers. See ante, at 922. Our holding, of course, does not spell the end of the objectives of the Brady Act. States and chief law enforcement officers may voluntarily continue to participate in the federal program. Moreover, the directives to the States are merely interim provisions scheduled to terminate November 30, 1998. Note following 18 U. S. C. § 922. Congress is also free to amend the interim program to provide for its continuance on a contractual basis with the States if it wishes, as it does with a number of other federal programs. See, e. g., 23 U. S. C. § 402 (conditioning States’ receipt of federal funds for highway safety program on compliance with federal requirements).

In addition, the Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e. g., 42 U. S. C. § 5779(a) (requiring state and local law enforcement agencies to report cases of missing children to the Department of Justice). The provisions invalidated here, however, which directly compel state officials to administer a federal

Civil Rights, Concurrence

Price Waterhouse v. Hopkins

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring in the judgment.

I agree with the plurality that, on the facts presented in this case, the burden of persuasion should shift to the employer to demonstrate by a preponderance of the evidence that it would have reached the same decision concerning Ann Hopkins’ candidacy absent consideration of her gender. I further agree that this burden shift is properly part of the liability phase of the litigation. I thus concur in the judgment of the Court. My disagreement stems from the plurality’s conclusions concerning the substantive requirement of causation under the statute and its broad statements regarding the applicability of the allocation of the burden of proof applied in this case. The evidentiary rule the Court adopts today should be viewed as a supplement to the careful framework established by our unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), for use in cases such as this one where the employer has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion. I write separately to explain why I believe such a departure from the McDonnell Douglas standard is justified in the circumstances presented by this and like cases, and to express my views as to when and how the strong medicine of requiring the employer to bear the burden of persuasion on the issue of causation should be administered.

I

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