Concurrence, First Amendment

Ashcroft v. American Civil Liberties Union

Concurrence, First Amendment / By

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

I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 577579. Like JUSTICE BREYER, however, see post, at 589 (opinion concurring in part and concurring in judgment), I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.

The plurality’s opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. See ante, at 577-579. I agree, given respondents’ failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents’ examples of material for which com munity standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Brief for Respondents 43. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient

Dissent, Economic Activity, Harry Blackmun, William Rehnquist

Asarco Inc. v. Idaho State Tax Comm’n

Dissent, Economic Activity, Harry Blackmun, William Rehnquist / By

JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.

The Court today declares that the Due Process Clause of the Constitution forbids a State to tax a proportionate share of the investment income of a nondomiciliary corporation doing business within its borders. In so doing, the Court groundlessly strikes down the eminently reasonable assertion of Idaho’s taxing power at issue in this case. Far more dismaying, however, is that the Court’s reliance on the Due Process Clause may deprive Congress of the authority necessary to rationalize the joint taxation of interstate commerce by the 50 States.

Today, the taxpayer wins. Yet in the end, today’s decision may prove to be a loss for all concerned -interstate businesses themselves, which the Commerce Clause guarantees the opportunity to serve the country’s needs unimpeded by a parochial hodgepodge of overlapping and conflicting tax levies; the Nation, which demands a prosperous interstate market; and the States, which deserve fair return for the advantages they afford interstate enterprise. For while this Court has the authority to invalidate a specific state tax, only Congress has both the ability to canvass the myriad facts and factors relevant to interstate taxation and the power to shape a nationwide system that would guarantee the States fair revenues and offer interstate businesses freedom from strangulation by multiple paperwork and tax burdens. Unfortunately, by apparently stripping Congress

Concurrence, Criminal Procedure

California v. Brown

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring.

This case squarely presents the tension that has long existed between the two central principles of our Eighth Amendment jurisprudence. In Gregg v. Georgia, 428 U. S. 153, 428 U. S. 189 (1976), JUSTICES Stewart, POWELL, and STEVENS concluded that,

where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.

In capital sentencing, therefore, discretion must be ” controlled by clear and objective standards so as to produce nondiscriminatory application.'” Id. at 428 U. S. 198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S.E.2d 612, 615 (1974)). See also Proffitt v. Florida, 428 U. S. 242, 428 U. S. 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (State must provide “specific and detailed guidance” to the sentencing body). On the other hand, this Court has also held that a sentencing body must be able to consider any relevant mitigating evidence regarding the defendant’s character or background, and the circumstances of the particular offense. Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion).

The issue in this case is whether an instruction designed to satisfy the principle that capital sentencing decisions must not be made on mere whim, but instead on clear and objective standards,

Concurrence, Criminal Procedure

Caldwell v. Mississippi

Concurrence, Criminal Procedure / By

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

I join the judgment and the opinion of the Court, with the exception of Part IV-A. I write separately to express my views about the Court’s discussion of California v. Ramos, 463 U. S. 992 (1983), in Part 472 U. S. I do not read Ramos to imply that the giving of nonmisleading and accurate information regarding the jury’s role in the sentencing scheme is irrelevant to the sentencing decision.

The Court distinguishes the prosecutor’s remarks regarding appellate review in this case from the Briggs instruction in Ramos, which informed the jury that the Governor could commute a life sentence without parole. The Court observes that the Briggs instruction in Ramos was

both accurate and relevant to a legitimate state penological interest -that interest being a concern for the future dangerousness of the defendant should he ever return to society.

Ante at 472 U. S. 335. The statement here, the Court concludes, was neither accurate nor relevant. In my view, the prosecutor’s remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury’s sense of responsibility. I agree there can be no “valid state penological interest” in imparting inaccurate or misleading information that minimizes the importance of the jury’s deliberations in a capital sentencing case. Ante at 472 U. S. 336.

The Court, however, seems generally to characterize information regarding appellate review

Economic Activity, Harry Blackmun, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Cal. Coastal Comm’n v. Granite Rock Co

Economic Activity, Harry Blackmun, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents the question whether Forest Service regulations, federal land use statutes and regulations, or the Coastal Zone Management Act of 1972 (CZMA), 16 U.S.C. §1451 et seq. (1982 ed. and Supp. III), preempt the California Coastal Commission’s imposition of a permit requirement on operation of an unpatented mining claim in a national forest.

I

Granite Rock Company is a privately owned firm that mines chemical and pharmaceutical grade white limestone. Under the Mining Act of 1872, 17 Stat. 91, as amended, 30 U.S.C. § 22 et seq., a private citizen may enter federal lands to explore for mineral deposits. If a person locates a valuable mineral deposit on federal land, and perfects the claim by properly staking it and complying with other statutory requirements, the claimant “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations,” 30 U.S.C. § 26, although the United States retains title to the land. The holder of a perfected mining claim may secure a patent to the land by complying with the requirements of the Mining Act and regulations promulgated thereunder, see 43 CFR § 3861.1 et seq. (1986), and, upon issuance of the patent, legal title to the land passes to the patent holder. Granite Rock holds unpatented mining claims on federally owned lands on and around Mount Pico Blanco in the Big Sur region of Los Padres National Forest.

From 1959 to

Concurrence, Economic Activity

C & A Carbone Inc. v. Clarkstown

Concurrence, Economic Activity / By

JUSTICE O’CONNOR, concurring in the judgment.

The town of Clarkstown’s flow control ordinance requires all “acceptable waste” generated or collected in the town to be disposed of only at the town’s solid waste facility. Town of Clarkstown, Local Law 9, §§ 3.C-D (1990) (Local Law 9). The Court holds today that this ordinance violates the Commerce Clause because it discriminates against interstate commerce. Ante, at 390. I agree with the majority’s ultimate conclusion that the ordinance violates the dormant Commerce Clause. In my view, however, the town’s ordinance is unconstitutional not because of facial or effective discrimination against interstate commerce, but rather because it imposes an excessive burden on interstate commerce. I also write separately to address the contention that flow control ordinances of this sort have been expressly authorized by Congress, and are thus outside the purview of the dormant Commerce Clause.

I

The scope of the dormant Commerce Clause is a judicial creation. On its face, the Clause provides only that “[t]he Congress shall have Power… To regulate Commerce… among the several States… ” u. S. Const., Art. I, § 8, cl. 3. This Court long ago concluded, however, that the Clause not only empowers Congress to regulate interstate commerce, but also imposes limitations on the States in the absence of congressional action:”This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy,

Byron White, David Souter, Harry Blackmun, Judicial Power, Majority, William Rehnquist

Business Guides v. Chromatic Commun

Byron White, David Souter, Harry Blackmun, Judicial Power, Majority, William Rehnquist / By

Justice O’CONNOR delivered the opinion of the Court.

In this case, we decide whether Rule 11 of the Federal Rules of Civil Procedure imposes an objective standard of reasonable inquiry on represented parties who sign pleadings, motions, or other papers.

I

Business Guides, Inc., a subsidiary of a leading publisher of trade magazines and journals, publishes directories for 18 specialized areas of retail trade. In an effort to protect its directories against copying, Business Guides deliberately plants in them bits of false information, known as “seeds.” Some seeds consist of minor alterations in otherwise accurate listings -transposed numbers in an address or zip code, or a misspelled name -while others take the form of wholly fictitious listings describing nonexistent businesses. Business Guides considers the presence of seeds in a competitor’s directory to be evidence of copyright infringement. *

On October 31, 1986, Business Guides, through its counsel Finley, Kumble, Wagner, Heine, Unterberg, Manley, Myerson, and Casey (Finley, Kumble), filed an action in the United States District Court for the Northern District of California against Chromatic Communications Enterprises, Inc., claiming copyright infringement, conversion, and unfair competition, and seeking a temporary restraining order (TRO). The TRO application was signed by a Finley, Kumble attorney and by Business Guides’ president on behalf of the corporation. Business Guides submitted under seal affidavits in support

Attorneys, Dissent

Burlington v. Dague

Attorneys, Dissent / By

JUSTICE O’CONNOR, dissenting.

I continue to be of the view that in certain circumstances a “reasonable” attorney’s fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take a case in the first place. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U. S. 711, 731-734 (1987) (Delaware Valley II) (O’CONNOR, J., concurring in part and concurring in judgment). As JUSTICE BLACKMUN cogently explains, when an attorney must choose between two cases-one with a client who will pay the attorney’s fees win or lose and the other who can only promise the statutory compensation if the case is successful-the attorney will choose the fee-paying client, unless the contingency client can promise an enhancement of sufficient magnitude to justify the extra risk of nonpayment. Ante, at 568-569. Thus, a reasonable fee should be one that would “attract competent counsel,” Delaware Valley II, supra, at 733 (O’CONNOR, J., concurring in part and concurring in judgment), and in some markets this must include the assurance of a contingency enhancement if the plaintiff should prevail. I therefore dissent from the Court’s holding that a “reasonable” attorney’s fee can never include an enhancement for cases taken on contingency. In my view the promised enhancement should be “based on the difference in market treatment of contingent fee cases as a class, rather than on an

First Amendment, Partial concurrence, partial dissent, Stephen Breyer

Buckley v. American Constitutional Law Foundation Inc

First Amendment, Partial concurrence, partial dissent, Stephen Breyer / By

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

Petition circulation undoubtedly has a significant political speech component. When an initiative petition circulator approaches a person and asks that person to sign the petition, the circulator is engaging in “interactive communication concerning political change.” Meyer v. Grant, 486 U. S. 414, 422 (1988). It was the imposition of a direct and substantial burden on this one-on-one communication that concerned us in Meyer v. Grant. To address this concern, we held in that case that regulations directly burdening the one-on-one, communicative aspect of petition circulation are subject to strict scrutiny. Id., at 420.

Not all circulation-related regulations target this aspect of petition circulation, however. Some regulations govern the electoral process by directing the manner in which an initiative proposal qualifies for placement on the ballot. These latter regulations may indirectly burden speech but are a step removed from the communicative aspect of petitioning and are necessary to maintain an orderly electoral process. Accordingly, these regulations should be subject to a less exacting standard of review.

In this respect, regulating petition circulation is similar to regulating candidate elections. Regulations that govern a candidate election invariably burden to some degree one’s right to vote and one’s right to associate for political purposes. Such restrictions

Civil Rights, Concurrence, John Paul Stevens

Brown v. Thomson

Civil Rights, Concurrence, John Paul Stevens / By

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

By its decisions today in this case and in Karcher v. Daggett, ante p. 462 U. S. 725, the Court upholds, in the former, the allocation of one representative to a county in a state legislative plan with an 89% maximum deviation from population equality and strikes down, in the latter, a congressional reapportionment plan for the State of New Jersey where the maximum deviation is 0.6984%. As a Member of the majority in both cases, I feel compelled to explain the reasons for my joinder in these apparently divergent decisions.

In my view, the “one-person, one-vote” principle is the guiding ideal in evaluating both congressional and legislative redistricting schemes. In both situations, however, ensuring equal representation is not simply a matter of numbers. There must be flexibility in assessing the size of the deviation against the importance, consistency, and neutrality of the state policies alleged to require the population disparities.

Both opinions recognize this need for flexibility in examining the asserted state policies. [ Footnote 2/1 ] In Karcher, New Jersey has not demonstrated that the population variances in congressional districts were necessary to preserve minority voting strength -the only justification offered by the State. Ante at 462 U. S. 742 -744. Here, by contrast, there can be no doubt that the population deviation resulting from the provision of one representative to Niobrara County is the