Concurrence, Privacy, Timeline

Webster v. Reproductive Health Svcs

Concurrence, Privacy, Timeline / By

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

I concur in Parts I, II-A, II-B, and II-C of the Court’s opinion.

I

Nothing in the record before us or the opinions below indicates that subsections 1(1) and 1(2) of the preamble to Missouri’s abortion regulation statute will affect a woman’s decision to have an abortion. JUSTICE STEVENS, following appellees, see Brief for Appellees 22, suggests that the preamble may also “interfer[e] with contraceptive choices,” post at 492 U. S. 564, because certain contraceptive devices act on a female ovum after it has been fertilized by a male sperm. The Missouri Act defines “conception” as “the fertilization of the ovum of a female by a sperm of a male,” Mo.Rev.Stat. § 188.015(3) (1986), and invests “unborn children” with “protectable interests in life, health, and wellbeing,” § 1.205.1(2), from “the moment of conception…. ” § 1.205.3. JUSTICE STEVENS asserts that any possible interference with a woman’s right to use such postfertilization contraceptive devices would be unconstitutional under Griswold v. Connecticut, 381 U. S. 479 (1965), and our subsequent contraception cases. Post at 492 U. S. 564 -566. Similarly, certain amici suggest that the Missouri Act’s preamble may prohibit the developing technology of in vitro fertilization, a technique used to aid couples otherwise unable to bear children in which a number of ova are removed from the woman and fertilized by male sperm. This process often produces excess

Concurrence, First Amendment, John Paul Stevens, William Brennan

County of Allegheny v. ACLU

Concurrence, First Amendment, John Paul Stevens, William Brennan / By

JUSTICE O’CONNOR, with whom JUSTICE BRENNAN and JUSTICE STEVENS join as to Part II, concurring in part and concurring in the judgment.

I

Judicial review of government action under the Establishment Clause is a delicate task. The Court has avoided drawing lines which entirely sweep away all government recognition and acknowledgment of the role of religion in the lives of our citizens, for to do so would exhibit not neutrality, but hostility, to religion. Instead, the courts have made case-specific examinations of the challenged government action and have attempted to do so with the aid of the standards described by JUSTICE BLACKMUN in Part III-A of the Court’s opinion. Ante at 492 U. S. 590 -594. Unfortunately, even the development of articulable standards and guidelines has not always resulted in agreement among the Members of this Court on the results in individual cases. And so it is again today.

The constitutionality of the two displays at issue in these cases turns on how we interpret and apply the holding in Lynch v. Donnelly, 465 U. S. 668 (1984), in which we rejected an Establishment Clause challenge to the city of Pawtucket’s inclusion of a creche in its annual Christmas holiday display. The seasonal display reviewed in Lynch was located in a privately owned park in the heart of the shopping district. Id. at 465 U. S. 671. In addition to the creche, the display included

a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers,

Dissent, Federalism

South Carolina v. Baker

Dissent, Federalism / By

JUSTICE O’CONNOR, dissenting.

The Court today overrules a precedent that it has honored for nearly 100 years and expresses a willingness to cancel the constitutional immunity that traditionally has shielded the interest paid on state and local bonds from federal taxation. Henceforth the ability of state and local governments to finance their activities will depend in part on whether Congress voluntarily abstains from tapping this permissible source of additional income tax revenue. I believe that state autonomy is an important factor to be considered in reviewing the National Government’s exercise of its enumerated powers. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 581 (1985) (O’CONNOR, J., joined by Powell and REHNQUIST, JJ., dissenting). I dissent from the decision to overrule Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429 (1895), and I would invalidate Congress’ attempt to regulate the sovereign States by threatening to deprive them of this tax immunity, which would increase their dependence on the National Government.

Section 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), 26 U.S.C. § 103(j)(1), provides that the interest paid on state and local bonds will be subject to federal income tax unless the bonds are issued in registered form. The Court readily concludes that Congress could have prohibited outright the issuance of bearer bonds without violating the Tenth Amendment. Ante at 485 U. S. 511 -513. But

Antonin Scalia, Criminal Procedure, Dissent, William Rehnquist

Hicks v. Feiock

Antonin Scalia, Criminal Procedure, Dissent, William Rehnquist / By

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

This case concerns a contempt proceeding against a parent who repeatedly failed to comply with a valid court order to make child support payments. In my view, the proceeding is civil as a matter of federal law. Therefore, the Due Process Clause of the Fourteenth Amendment does not prevent the trial court from applying a legislative presumption that the parent remained capable of complying with the order until the time of the contempt proceeding.

I

The facts of this case illustrate how difficult it can be to obtain even modest amounts of child support from a noncustodial parent. Alta Sue Adams married respondent Phillip William Feiock in 1968. The couple resided in California and had three children. In 1973, respondent left the family. Mrs. Feiock filed a petition in the Superior Court of California for the County of Orange seeking dissolution of her marriage, legal custody of the children, and child support. In January, 1976, the court entered an interlocutory judgment of dissolution of marriage, awarded custody of the children to Mrs. Feiock, and ordered respondent to pay child support beginning February 1, 1976. The court ordered respondent to pay $35 per child per month for the first four months, and $75 per child per month starting June 1, 1976. The order has never been modified.

After the court entered a final judgment of dissolution of marriage, Mrs. Feiock and the children moved to Ohio.

Civil Rights, Partial concurrence, partial dissent, Thurgood Marshall, William Brennan

Gardebring v. Jenkins

Civil Rights, Partial concurrence, partial dissent, Thurgood Marshall, William Brennan / By

JUSTICE O’CONNOR, with whom JUSTICE BRENNAN joins, and with whom JUSTICE MARSHALL joins as to the last paragraph, concurring in the judgment in part and dissenting in part.

The Court’s approach to this case is summarized in its statement that

when it is the Secretary’s regulation that we are construing, and when there is no claim in this Court that the regulation violates any constitutional or statutory mandate, we are properly hesitant to substitute an alternative reading for the Secretary’s unless that alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.

Ante at 485 U. S. 430. I agree with this proposition, but I disagree with the Court’s application of it here. In the course of this litigation, the Secretary took what I believe are two inconsistent positions. Because I regard the Secretary’s later position as far less reasonable than his earlier position, I would hold him to his earlier and better interpretation.

In November, 1982, respondent Kathryn Jenkins applied for AFDC benefits. Mrs. Jenkins’ husband is disabled, they have five minor children, and the family was found eligible for benefits. In October, 1983, Mr. Jenkins received a retroactive Social Security disability payment. The family immediately used the bulk of this lump-sum payment to pay their overdue bills. Under the provisions of a federal statute adopted in 1981, using the lump-sum payment in

Civil Rights, Partial concurrence, partial dissent

Goodman v. Lukens Steel Co

Civil Rights, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, concurring in the judgment in No. 85-1626 and dissenting in No. 85-2010.

In light of the Court’s decision to apply a uniform characterization for limitations purposes to actions arising under 42 U.S.C. § 1981, I agree that the most appropriate choice is each State’s limitations period for personal injury suits. But see Wilson v. Garcia, 471 U. S. 261, 471 U. S. 280 -287 (1985) (O’CONNOR, J., dissenting). Although I doubt whether the Court’s decision should be given general retroactive effect, I agree that the Court should adhere to its policy of applying the rule it announces to the parties before the Court. See Stovall v. Denno, 388 U. S. 293, 388 U. S. 301 (1967). I therefore concur in the judgment of the Court in No. 85-1626. I join Parts I through IV of JUSTICE POWELL’s opinion concurring in part and dissenting in part, as to No. 85-2010.

Antonin Scalia, Byron White, Economic Activity, Lewis Powell, Majority, William Rehnquist

Shearson/American Express v. McMahon

Antonin Scalia, Byron White, Economic Activity, Lewis Powell, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case presents two questions regarding the enforceability of predispute arbitration agreements between brokerage firms and their customers. the first is whether a claim brought under § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 891, 15 U.S.C. § 78j(b), must be sent to arbitration in accordance with the terms of an arbitration agreement. The second is whether a claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. § 1961 et seq., must be arbitrated in accordance with the terms of such an agreement.

I

Between 1980 and 1982, respondents Eugene and Julia McMahon, individually and as trustees for various pension and profit-sharing plans, were customers of petitioner Shearson/American Express Inc. (Shearson), a brokerage firm registered with the Securities and Exchange Commission (SEC or Commission). Two customer agreements signed by Julia McMahon provided for arbitration of any controversy relating to the accounts the McMahons maintained with Shearson. The arbitration provision provided in relevant part as follows:

Unless unenforceable due to federal or state law, any controversy arising out of or relating to my accounts, to transactions with you for me or to this agreement or the breach thereof, shall be settled by arbitration in accordance with the rules, then in effect, of the National Association of Securities Dealers, Inc. or the Boards of Directors

Dissent, Privacy, Timeline, William Rehnquist

Thornburgh v. Amer. Coll. of Obstetricians

Dissent, Privacy, Timeline, William Rehnquist / By

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

This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. See Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 462 U. S. 452 (1983) (O’CONNOR, J., dissenting). Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but -except when it comes to abortion -the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. See Heckler v. Chaney, 470 U. S. 821, 470 U. S. 838 (1985); id. at 470 U. S. 839 -840, n. 2 (BRENNAN, J., concurring) (differences over the validity of the death penalty under the Eighth Amendment should not influence the Court’s consideration of a question of statutory administrative law). That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade, 410 U. S. 113 (1973).

The

Dissent, First Amendment, William Rehnquist

Aguilar v. Felton

Dissent, First Amendment, William Rehnquist / By

JUSTICE O’CONNOR, with whom JUSTICE REHNQUIST joins as to Parts II and III, dissenting.

Today the Court affirms the holding of the Court of Appeals that public school teachers can offer remedial instruction to disadvantaged students who attend religious schools “only if such instruction… [is] afforded at a neutral site off the premises of the religious school.” 739 F.2d 48, 64 (CA2 1984). This holding rests on the theory, enunciated in Part V of the Court’s opinion in Meek v. Pittenger, 421 U. S. 349, 421 U. S. 367 -373 (1975), that public school teachers who set foot on parochial school premises are likely to bring religion into their classes, and that the supervision necessary to prevent religious teaching would unduly entangle church and state. Even if this theory were valid in the abstract, it cannot validly be applied to New York City’s 19-year-old Title I program. The Court greatly exaggerates the degree of supervision necessary to prevent public school teachers from inculcating religion, and thereby demonstrates the flaws of a test that condemns benign cooperation between church and state. I would uphold Congress’ efforts to afford remedial instruction to disadvantaged schoolchildren in both public and parochial schools.

I

As in Wallace v. Jaffree, 472 U. S. 38 (1985), and Thornton v. Caldor, Inc., 472 U. S. 703 (1985), the Court in this litigation adheres to the three-part Establishment Clause test enunciated in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612 -613

Concurrence, Economic Activity, Warren Burger

Mitchell v. Forsyth

Concurrence, Economic Activity, Warren Burger / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part.

I join Parts I, III, and IV of the majority opinion and the judgment of the Court. Our previous cases concerning the qualified immunity doctrine indicate that a defendant official whose conduct did not violate clearly established legal norms is entitled to avoid trial. Davis v. Scherer, 468 U. S. 183 (1984); Harlow v. Fitzgerald, 457 U. S. 800, 457 U. S. 815 -819 (1982). This entitlement is analogous to the right to avoid trial protected by absolute immunity or by the Double Jeopardy Clause. Where the district court rejects claims that official immunity or double jeopardy preclude trial, the special nature of the asserted right justifies immediate review. The very purpose of such immunities is to protect the defendant from the burdens of trial, and the right will be irretrievably lost if its denial is not immediately appealable. See Helstoski v. Meanor, 442 U. S. 500, 442 U. S. 506 -508 (1979); Abney v. United States, 431 U. S. 651, 431 U. S. 660 -662 (1977). I agree that the District Court’s denial of qualified immunity comes within the small class of interlocutory orders appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949).

Because I also agree that the District Court erred in holding that petitioner’s authorization of the wiretaps in 1970 violated legal rights that were clearly established at the time, I concur in the judgment of the Court. The conclusion that petitioner