Concurrence, Economic Activity

Vimar Seguros y Reaseguros S. A. v. M/V Sky Reefer

Concurrence, Economic Activity / By

JUSTICE O’CONNOR, concurring in the judgment.

I agree with what I understand to be the two basic points made in the Court’s opinion. First, I agree that the language of the Carriage of Goods by Sea Act (COGSA), 46 U. S. C. App. § 1300 et seq., and our decision in Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585 (1991), preclude a holding that the increased cost of litigating in a distant forum, without more, can lessen liability within the meaning of COGSA § 3(8). Ante, at 534-536. Second, I agree that, because the District Court has retained jurisdiction over this case while the arbitration proceeds, any claim of lessening of liability that might arise out of the arbitrators’ interpretation of the bill of lading’s choice-of-Iaw clause, or out of their application of COGSA, is premature. Ante, at 539-541. Those two points suffice to affirm the decision below.

Because the Court’s opinion appears to do more, however, I concur only in the judgment. Foreign arbitration clauses of the kind presented here do not divest domestic courts of jurisdiction, unlike true foreign forum selection clauses such as that considered in lndussa Corp. v. S. S. Ranborg, 377 F. 2d 200 (CA2 1967) (en banc). That difference is an important one-it is, after all, what leads the Court to dismiss much of petitioner’s argument as premature-and we need not decide today whether lndussa, insofar as it relied on considerations other than the increased cost of litigating in a distant forum, retains any vitality

David Souter, Dissent, John Paul Stevens, Privacy

Vernonia School Dist. 47J v. Acton

David Souter, Dissent, John Paul Stevens, Privacy / By

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

The population of our Nation’s public schools, grades 7 through 12, numbers around 18 million. See U. S. Dept. of Education, National Center for Education Statistics, Digest of Education Statistics 58 (1994) (Table 43). By the reasoning of today’s decision, the millions of these students who participate in interscholastic sports, an overwhelming majority of whom have given school officials no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.

In justifying this result, the Court dispenses with a requirement of individualized suspicion on considered policy grounds. First, it explains that precisely because every student athlete is being tested, there is no concern that school officials might act arbitrarily in choosing whom to test. Second, a broad-based search regime, the Court reasons, dilutes the accusatory nature of the search. In making these policy arguments, of course, the Court sidesteps powerful, countervailing privacy concerns. Blanket searches, because they can involve “thousands or millions” of searches, “pos[e] a greater threat to liberty” than do suspicion-based ones, which “affec[t] one person at a time,” Illinois v. Krull, 480 U. S. 340, 365 (1987) (O’CONNOR, J., dissenting). Searches based on individualized suspicion also afford potential targets considerable control over whether they will, in fact, be searched because a person can avoid

Civil Rights, Concurrence

Vasquez v. Hillery

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring in the judgment.

This Court has long held that upon proof of systematic exclusion of blacks from a grand jury issuing an indictment, the admittedly costly remedy of reversal of a conviction thereafter obtained through a fair trial is necessary in order to eradicate and deter such discrimination. Not until Rose v. Mitchell, 443 U. S. 545 (1979), however, did the Court squarely address the question whether, given the availability of this remedy on direct review, it is also necessary to make the same remedy available when the petitioner seeks to renew his claim of discriminatory exclusion on federal habeas corpus review. See id. at 443 U. S. 582 (POWELL, J., concurring in judgment).

I share the view expressed by JUSTICE POWELL in Rose: a petitioner who has been afforded by the state courts a full and fair opportunity to litigate the claim that blacks were discriminatorily excluded from the grand jury which issued the indictment should be foreclosed from relitigating that claim on federal habeas. The incremental value that continued challenges may have in rooting out and deterring such discrimination is outweighed by the unique considerations that apply when the habeas writ is invoked. The history and purposes of the writ, as well as weighty finality interests and considerations of federalism, counsel against permitting a petitioner to renew on habeas a challenge which does not undermine the justness of his trial, conviction, or incarceration. See id.

Antonin Scalia, Federalism, Harry Blackmun, Lewis Powell, Majority, William Rehnquist

Utah Div. of State Lands v. United States

Antonin Scalia, Federalism, Harry Blackmun, Lewis Powell, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The issue in this case is whether title to the bed of Utah Lake passed to the State of Utah under the equal footing doctrine upon Utah’s admission to the Union in 1896.

I

A

The equal footing doctrine is deeply rooted in history, and the proper application of the doctrine requires an understanding of its origins. Under English common law, the English Crown held sovereign title to all lands underlying navigable waters. Because title to such land was important to the sovereign’s ability to control navigation, fishing, and other commercial activity on rivers and lakes, ownership of this land was considered an essential attribute of sovereignty.

Title to such land was therefore vested in the sovereign for the benefit of the whole people. See Shively v. Bowlby, 152 U. S. 1, 152 U. S. 11 -14 (1894). When the 13 Colonies became independent from Great Britain, they claimed title to the lands under navigable waters within their boundaries as the sovereign successors to the English Crown. Id. at 152 U. S. 15. Because all subsequently admitted States enter the Union on an “equal footing” with the original 13 States, they too hold title to the land under navigable waters within their boundaries upon entry into the Union. Pollard’s Lessee v. Hagan, 3 How. 212 (1845).

In Pollard’s Lessee, this Court announced the principle that the United States held the lands under navigable waters in the Territories “in trust” for the future States

Dissent, Federal Taxation, John Paul Stevens, Thurgood Marshall, William Brennan

U.S. v. Ron Pair Enterprises

Dissent, Federal Taxation, John Paul Stevens, Thurgood Marshall, William Brennan / By

JUSTICE O’CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

The Court’s decision is based on two distinct lines of argument. First, the Court concludes that the language of § 506(b) of the Bankruptcy Code, 11 U.S.C. § 506(b), is clear and unambiguous. Second, the Court takes a very narrow view of Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494 (1986), and its progeny. I disagree with both aspects of the Court’s opinion, and with the conclusion to which they lead.

The relevant portion of § 506(b) provides that

there shall be allowed to the holder of [an oversecured] claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.

The Court concludes that the only natural reading of § 506(b) is that recovery of post-petition interest is “unqualified.” Ante at 241. As Justice Frankfurter remarked some time ago, however, “[t]he notion that, because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” United States v. Monia, 317 U. S. 424, 317 U. S. 431 (1943) (dissenting opinion).

Although “the use of the comma is exceedingly arbitrary and indefinite,” United States v. Palmer, 3 Wheat. 610, 16 U. S. 638 (1818) (separate opinion of Johnson, J.), the Court is able to read § 506(b) the way that it does only because of the comma following the phrase “interest on such claim.” Without

Civil Rights, Concurrence

US Airways Inc. v. Barnett

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring.

I agree with portions of the opinion of the Court, but I find problematic the Court’s test for determining whether the fact that a job reassignment violates a seniority system makes the reassignment an unreasonable accommodation under the Americans with Disabilities Act of 1990 (ADA or Act), 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. V). Although a seniority system plays an important role in the workplace, for the reasons I explain below, I would prefer to say that the effect of a seniority system on the reasonableness of a reassignment as an accommodation for purposes of the ADA depends on whether the seniority system is legally enforceable. “Were it possible for me to adhere to [this belief] in my vote, and for the Court at the same time to [adopt a majority rule],” I would do so. Screws v. United States, 325 U. S. 91, 134 (1945) (Rutledge, J., concurring in result). “The Court, however, is divided in opinion,” ibid., and if each Member voted consistently with his or her beliefs, we would not agree on a resolution of the question presented in this case. Yet “[s]talemate should not prevail,” ibid., particularly in a case in which we are merely interpreting a statute. Accordingly, in order that the Court may adopt a rule, and because I believe the Court’s rule will often lead to the same outcome as the one I would have adopted, I join the Court’s opinion despite my concerns. Cf. Bragdon v. Abbott, 524 U. S. 624, 655-656 (1998) (STEVENS, J.,

Concurrence, Criminal Procedure

United States v. Valenzuela-Bernal

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring in the judgment.

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.

Washington v. Texas, 388 U. S. 14, 388 U. S. 19 (1967). In short, the right to compulsory process is essential to a fair trial. Today’s decision, I fear, may not protect adequately the interests of the prosecution and the defense in a fair trial, and may encourage litigation over whether the defendant has made a “plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense.” Ante at 458 U. S. 873. A preferable approach would be to accommodate both the Government’s interest in prompt deportation of illegal aliens and the defendant’s need to interview alien witnesses in order to decide which of them can provide material evidence for the defense. Through a suitable standard, imposed on the federal courts under our supervisory powers, a practical accommodation can be reached without any increase in litigation.

I

One cannot discount the importance of the Federal Government’s role in the regulation of immigration. [ Footnote 2/1 ] As the Court points out, Congress and the Immigration and Naturalization Service, the agency authorized to make such policy decisions, have decided that prompt deportation

Economic Activity, Partial concurrence, partial dissent

United States v. Stanley

Economic Activity, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, concurring in part and dissenting in part.

I agree with both the Court and JUSTICE BRENNAN that James Stanley’s cause of action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., should not have been reinstated by the Court of Appeals. I therefore join Part I of the Court’s opinion. I further agree with the Court that, under Chappell v. Wallace, 462 U. S. 296 (1983), there is generally no remedy available under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), for injuries that arise out of the course of activity incident to military service. Ante at 483 U. S. 683 -684. In Chappell v. Wallace, supra, this Court unanimously held that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations. The “special factors” that we found relevant to the propriety of a Bivens action by enlisted personnel against their military superiors “also formed the basis” of this Court’s decision in Feres v. United States, 340 U. S. 135 (1950), that the FTCA does not extend to injuries arising out of military service. Chappell, supra, at 462 U. S. 298. In my view, therefore, Chappell and Feres must be read together; both cases unmistakably stand for the proposition that the special circumstances of the military mandate that civilian courts avoid entertaining a suit involving harm caused as a result of military service. Thus, no amount of negligence, recklessness, or perhaps

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

United States v. Shabani

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

JUSTICE O’CONNOR delivered the opinion of the Court. This case asks us to consider whether 21 U. S. C. § 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.

I

According to the grand jury indictment, Reshat Shabani participated in a narcotics distribution scheme in Anchorage, Alaska, with his girlfriend, her family, and other associates. Shabani was allegedly the supplier of drugs, which he arranged to be smuggled from California. In an undercover operation, federal agents purchased cocaine from distributors involved in the conspiracy.

Shabani was charged with conspiracy to distribute cocaine in violation of 21 U. S. C. § 846. He moved to dismiss the indictment because it did not allege the commission of an overt act in furtherance of the conspiracy, which act, he argued, was an essential element of the offense. The United States District Court for the District of Alaska, Hon. H. Russel Holland, denied the motion, and the case proceeded to trial. At the close of evidence, Shabani again raised the issue and asked the court to instruct the jury that proof of an overt act was required for conviction. The District Court noted that Circuit precedent did not require the allegation of an overt act in the indictment but did require proof of such an act at trial in order to state a violation of § 846. Recognizing that such a result was “totally illogical,” App. 29,

Antonin Scalia, Civil Rights, Dissent, William Rehnquist

United States v. Paradise

Antonin Scalia, Civil Rights, Dissent, William Rehnquist / By

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

In Wygant v. Jackson Board of Education, 476 U. S. 267, 476 U. S. 273 (1986), we concluded that the level of Fourteenth Amendment

scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.

Thus, in evaluating the constitutionality of the District Court order in this case under the Fourteenth Amendment, we must undertake a two-part inquiry. First, we must decide whether the order is “supported by a compelling [governmental] purpose.” Ibid. Second, we must scrutinize the order to ensure that “the means chosen to accomplish that purpose are narrowly tailored.” Ibid.

One cannot read the record in this case without concluding that the Alabama Department of Public Safety had undertaken a course of action that amounted to “pervasive, systematic, and obstinate discriminatory conduct.” Ante at 480 U. S. 167. Because the Federal Government has a compelling interest in remedying past and present discrimination by the Department, the District Court unquestionably had the authority to fashion a remedy designed to end the Department’s egregious history of discrimination. In doing so, however, the District Court was obligated to fashion a remedy that was narrowly tailored to accomplish this purpose. The plurality today purports to apply strict scrutiny, and concludes that the order in this case was