Concurrence, Judicial Power

Sims v. Apfel

Concurrence, Judicial Power / By

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

In most cases, an issue not presented to an administrative decisionmaker cannot be argued for the first time in federal court. On this underlying principle of administrative law, the Court is unanimous. See ante, at 108; post, at 114-115 (BREYER, J., dissenting). In the absence of a specific statute or regulation requiring issue exhaustion, however, such a rule is not always appropriate. The inquiry requires careful examination of “the characteristics of the particular administrative procedure provided.” McCarthy v. Madigan, 503 U. S. 140, 146 (1992). The Court’s opinion provides such an examination, and reaches the correct result. Accordingly, I join Parts I and II -A of the Court’s opinion, as well as its judgment. I write separately because, in my view, the agency’s failure to notify claimants of an issue exhaustion requirement in this context is a sufficient basis for our decision. Requiring issue exhaustion is particularly inappropriate here, where the regulations and procedures of the Social Security Administration (SSA) affirmatively suggest that specific issues need not be raised before the Appeals Council.

Although the SSA’s regulations warn claimants that completely failing to request Appeals Council review will forfeit the right to seek judicial review, see 20 CFR § 404.900(b) (1999), the regulations provide no notice that claimants must also raise specific issues before the Appeals Council to preserve

Byron White, Concurrence, Privacy, William Rehnquist

Simopoulos v. Virginia

Byron White, Concurrence, Privacy, William Rehnquist / By

JUSTICE O’CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

I agree with the Court’s treatment of the appellant’s arguments based on United States v. Vuitch, 402 U. S. 62 (1971), and Patterson v. New York, 432 U. S. 197 (1977). Accordingly, I Join Parts I and II of the Court’s opinion.

I concur in the judgment of the Court insofar as it affirms the conviction. For reasons stated in my dissent in Akron v Akron Center for Reproductive Health, ante p. 462 U. S. 416, I do not agree that the constitutional validity of the Virginia mandatory hospitalization requirement is contingent in any way on the trimester in which it is imposed. Rather, I believe that the requirement in this case is not an undue burden on the decision to undergo an abortion.

Anthony Kennedy, Concurrence, Criminal Procedure, William Rehnquist

Simmons v. South Carolina

Anthony Kennedy, Concurrence, Criminal Procedure, William Rehnquist / By

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

“Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,” Clemons v. Mississippi, 494 U. S. 738, 746 (1990), and one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him. Cf. Crane v. Kentucky, 476 U. S. 683, 690 (1986). In capital cases, we have held that the defendant’s future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U. S. 992, 1002-1003 (1983). But “[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty,… the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain’ [requires that the defendant be afforded an opportunity to introduce evidence on this point].” Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977) (plurality opinion); see also 476 U. S., at 9-10 (Powell, J., concurring in judgment).

In this case, petitioner physically and sexually assaulted three elderly women-one of them his own grandmotherbefore killing a fourth. At the capital sentencing proceed

*Compare ante, at 162, n. 4 (refraining from addressing Simmons’ Eighth Amendment claim), with ante, at 173-174 (SOUTER,

Antonin Scalia, Dissent, Economic Activity, William Rehnquist

Sheridan v. United States

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

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

Petitioners seek to recover money damages under a section of the Federal Tort Claims Act (FTCA) that authorizes claims against the Government for personal injuries

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.

28 U.S.C. § 1346(b). That section is subject to an exception for any claim “arising out of” an assault or battery. 28 U.S.C. § 2680(h). Despite the unqualified language of this exception, the Court today holds that it does not protect the Government from liability for a battery committed by a Government employee who acted outside the scope of his employment if other Government employees had a duty to prevent the battery.

If we were to construe the words according to their ordinary meaning, we would say that a claim “arises out of” a battery in any case in which the battery is essential to the claim. Thus when the Court construed another exception to the FTCA for claims “arising in respect of… the detention of any goods” by customs or law enforcement officials, 28 U.S.C. § 2680(c), we equated “arising in respect of” with “arising out of,” and decided that the phrase includes “all injuries associated in any way with the detention’ of goods.” See Kosak v. United States, 465 U. S. 848, 465 U. S. 854 (1984). A parallel construction of the exception at issue here leads to the conclusion that

Concurrence, Criminal Procedure

Thompson v. Oklahoma

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring in the judgment.

The plurality and dissent agree on two fundamental propositions: that there is some age below which a juvenile’s crimes can never be constitutionally punished by death, and that our precedents require us to locate this age in light of the ” evolving standards of decency that mark the progress of a maturing society.'” See ante at 487 U. S. 821 (quoting Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958) (opinion of Warren, C.J.)); ante at 487 U. S. 827 -829; post at 487 U. S. 864 -865, 487 U. S. 872. See also e.g., McCleskey v. Kemp, 481 U. S. 279, 481 U. S. 300 (1987). I accept both principles. The disagreements between the plurality and the dissent rest on their different evaluations of the evidence available to us about the relevant social consensus. Although I believe that a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, I am reluctant to adopt this conclusion as a matter of constitutional law without better evidence than we now possess. Because I conclude that the sentence in this case can and should be set aside on narrower grounds than those adopted by the plurality, and because the grounds on which I rest should allow us to face the more general question when better evidence is available, I concur only in the judgment of the Court.

I

Both the plurality and the dissent look initially to the decisions of American legislatures for signs of a national

Anthony Kennedy, Antonin Scalia, Attorneys, Byron White, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Texas St. Teach. Ass’n v. Garland ISD

Anthony Kennedy, Antonin Scalia, Attorneys, Byron White, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

We must decide today the proper standard for determining whether a party has “prevailed” in an action brought under certain civil rights statutes such that the party is eligible for an award of attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988. This is an issue which has divided the Courts of Appeals both before and after our decision in Hensley v. Eckerhart, 461 U. S. 424 (1983). The Courts of Appeals for the Fifth and Eleventh Circuits require that a party succeed on the “central issue” in the litigation and achieve the “primary relief sought” to be eligible for an award of attorney’s fees under § 1988. See, e.g., Simien v. San Antonio, 809 F.2d 255, 258 (CA5 1987); Martin v. Heckler, 773 F.2d 1145, 1149 (CA11 1985) (en banc). Most of the other Federal Courts of Appeals have applied a less demanding standard, requiring only that a party succeed on a significant issue and receive some of the relief sought in the lawsuit to qualify for a fee award. See, e.g., Gingras v. Lloyd, 740 F.2d 210, 212 (CA2 1984); Lampher v. Zagel, 755 F.2d 99, 102 (CA7 1985); Fast v. School Dist. of Ladue, 728 F.2d 1030, 1032-1033 (CA8 1984) (en banc); Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (CA9 1983); Nephew v. Aurora, 766 F.2d 1464, 1466 (CA10 1985). In this case, the Court of Appeals for the Fifth Circuit applied the “central issue” test, and concluded that petitioners here were

Antonin Scalia, Byron White, Criminal Procedure, Lewis Powell, Majority, William Rehnquist

Tanner v. United States

Antonin Scalia, Byron White, Criminal Procedure, Lewis Powell, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Petitioners William Conover and Anthony Tanner were convicted of conspiring to defraud the United States in violation of 18 U.S.C. § 371, and of committing mail fraud in violation of 18 U.S.C. § 1341. The United States Court of Appeals for the Eleventh Circuit affirmed the convictions. 772 F.2d 765 (1985). Petitioners argue that the District Court erred in refusing to admit juror testimony at a postverdict hearing on juror intoxication during the trial; and that the conspiracy count of the indictment failed to charge a crime against the United States. We affirm in part and remand.

I

Conover was the procurement manager at Seminole Electric Cooperative, Inc. (Seminole), a Florida corporation owned and operated by 11 rural electric distribution cooperatives. Seminole generates and transmits electrical energy to the cooperatives.

In 1979, Seminole borrowed over $1.1 billion from the Federal Financing Bank in order to construct a coal-fired power plant near Palatka, Florida. The loan was guaranteed by the Rural Electrification Administration (REA), a credit agency of the United States Department of Agriculture that assists rural electric organizations by providing loans, guaranteeing loans from other sources, and approving other security arrangements that allow the borrower to obtain financing. REA, A Brief History of the Rural Electrification and Telephone Programs (1985). The loan agreement between Seminole and the REA provided

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent

Swidler & Berlin v. United States

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent / By

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

Although the attorney-client privilege ordinarily will survive the death of the client, I do not agree with the Court that it inevitably precludes disclosure of a deceased client’s communications in criminal proceedings. In my view, a criminal defendant’s right to exculpatory evidence or a compelling law enforcement need for information may, where the testimony is not available from other sources, override a client’s posthumous interest in confidentiality.

We have long recognized that “[t]he fundamental basis upon which all rules of evidence must rest-if they are to rest upon reason-is their adaptation to the successful development of the truth.” Funk v. United States, 290 U. S. 371, 381 (1933). In light of the heavy burden that they place on the search for truth, see United States v. Nixon, 418 U. S. 683, 708-710 (1974), “[e]videntiary privileges in litigation are not favored, and even those rooted in the Constitution must give way in proper circumstances,” Herbert v. Lando, 441 U. S. 153, 175 (1979). Consequently, we construe the scope of privileges narrowly. See Jaffee v. Redmond, 518 U. S. 1, 19 (1996) (SCALIA, J., dissenting); see also University of Pennsylvania v. EEOC, 493 U. S. 182, 189 (1990). We are reluctant to recognize a privilege or read an existing one expansively unless to do so will serve a “public good transcending the normally predominant principle of utilizing all rational means

Anthony Kennedy, Antonin Scalia, Byron White, First Amendment, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Swaggart Ministries v. Board of Equalization

Anthony Kennedy, Antonin Scalia, Byron White, First Amendment, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

Justice O’CONNOR delivered the opinion of the Court.

This case presents the question whether the Religion Clauses of the First Amendment prohibit a State from imposing a generally applicable sales and use tax on the distribution of religious materials by a religious organization.

I

California’s Sales and Use Tax Law requires retailers to pay a sales tax “[f]or the privilege of selling tangible personal property at retail.” Cal.Rev. & Tax.Code Ann. § 6051 (West 1987). A “sale” includes any transfer of title or possession of tangible personal property for consideration. Cal.Rev. & Tax.Code Ann. § 6006(a) (West Supp.1989).

The use tax, as a complement to the sales tax, reaches out-of-state purchases by residents of the State. It is “imposed on the storage, use, or other consumption in this state of tangible personal property purchased from any retailer,” § 6201, at the same rate as the sales tax (6 percent). Although the use tax is imposed on the purchaser, § 6202, it is generally collected by the retailer at the time the sale is made. §§ 6202-6206. Neither the State Constitution nor the State Sales and Use Tax Law exempts religious organizations from the sales and use tax, apart from a limited exemption for the serving of meals by religious organizations, § 6363.5.

During the tax period in question (1974 to 1981), appellant Jimmy Swaggart Ministries was a religious organization incorporated as a Louisiana nonprofit corporation and recognized as such by the Internal Revenue

Byron White, Due Process, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist

Superintendent v. Hill

Byron White, Due Process, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Massachusetts inmates who comply with prison rules can accumulate good time credits that reduce the term of imprisonment. Mass.Gen.Laws Ann., ch. 127, § 129 (West 1974). Such credits may be lost “if a prisoner violates any rule of his place of confinement.” Ibid. The question presented is whether revocation of an inmate’s good time credits violates the Due Process Clause of the Fourteenth Amendment if the decision of the prison disciplinary board is not supported by evidence in the record. We conclude that where good time credits constitute a protected liberty interest, a decision to revoke such credits must be supported by some evidence. Because the record in this case contains sufficient evidence to support the decision of the disciplinary board, we reverse.

I

Respondents Gerald Hill and Joseph Crawford are inmates at a state prison in Walpole, Mass. In May, 1982, they each received prison disciplinary reports charging them with assaulting another inmate. At separate hearings for each inmate, a prison disciplinary board heard testimony from a prison guard, Sergeant Maguire, and received his written disciplinary report. According to the testimony and report, Maguire heard an inmate twice say loudly, “What’s going on?” The voice came from a walkway that Maguire could partially observe through a window. Maguire immediately opened the door to the walkway and found an inmate named Stephens bleeding from the mouth and suffering