Concurrence, Due Process

Foucha v. Louisiana

Concurrence, Due Process / By

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

Louisiana asserts that it may indefinitely confine Terry Foucha in a mental facility because, although not mentally ill, he might be dangerous to himself or to others if released. For the reasons given in Part II of the Court’s opinion, this contention should be rejected. I write separately, however, to emphasize that the Court’s opinion addresses only the specific statutory scheme before us, which broadly permits in definite confinement of sane insanity acquittees in psychiatric facilities. This case does not require us to pass judgment on more narrowly drawn laws that provide for detention of insanity acquittees, or on statutes that provide for punishment of persons who commit crimes while mentally ill.

I do not understand the Court to hold that Louisiana may never confine dangerous insanity acquittees after they regain mental health. Under Louisiana law, defendants who carry the burden of proving insanity by a preponderance of the evidence will “escape punishment,” but this affirmative defense becomes relevant only after the prosecution establishes beyond a reasonable doubt that the defendant committed criminal acts with the required level of criminal intent. State v. Marmillion, 339 So. 2d 788, 796 (La. 1976). Although insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, see Jones v. United States, 463 U. S. 354, 368-369, and n. 18 (1983), this finding

Anthony Kennedy, Criminal Procedure, Dissent, Harry Blackmun, John Paul Stevens

Keeney v. Tamayo-Reyes

Anthony Kennedy, Criminal Procedure, Dissent, Harry Blackmun, John Paul Stevens / By

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

Under the guise of overruling “a remnant of a decision,” ante, at 8, and achieving “uniformity in the law,” ante, at 10, the Court has changed the law of habeas corpus in a fundamental way by effectively overruling cases decided long before Townsend v. Sain, 372 U. S. 293 (1963). I do not think this change is supported by the line of our recent procedural default cases upon which the Court relies: In my view, the balance of state and federal interests regarding whether a federal court will consider a claim raised on habeas cannot be simply lifted and transposed to the different question whether, once the court will consider the claim, it should hold an evidentiary hearing. Moreover, I do not think the Court’s decision can be reconciled with 28 U. S. C. § 2254(d), a statute Congress enacted three years after Townsend.

I

Jose Tamayo-Reyes’ habeas petition stated that because he does not speak English he pleaded nolo contendere to manslaughter without any understanding of what “manslaughter” means. App. 58. If this assertion is true, his conviction was unconstitutionally obtained, see Henderson v. Morgan, 426 U. S. 637, 644-647 (1976), and Tamayo-Reyes would be entitled to a writ of habeas corpus. Despite the Court’s attempt to characterize his allegation as a technical quibble-“his translator had not translated accurately and completely for him the mens rea element of manslaughter,”

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Clarence Thomas, David Souter, Majority, William Rehnquist

Denton v. Hernandez

Anthony Kennedy, Antonin Scalia, Byron White, Civil Rights, Clarence Thomas, David Souter, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. The federalin forma pauperisstatute, codified at 28 U. S. C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” § 1915(d). InNeitzkev.Williams,490 U. S. 319(1989), we considered the standard to be applied when determining whether the legal basis of anin forma pauperiscomplaint is frivolous under § 1915(d). The issues in this case are the appropriate inquiry for determining when anin forma pauperislitigant’s factual allegations justify a § 1915(d) dismissal for frivolousness, and the proper standard of appellate review of such a dismissal.

I

Petitioners are 15 officials at various institutions in the California penal system. Between 1983 and 1985, respondent Mike Hernandez, a state prisoner proceeding pro se, named petitioners as defendants in five civil rights suits filed in forma pauperis. In relevant part, the complaints in these five suits allege that Hernandez was drugged and homosexually raped a total of 28 times by inmates and prison

*Solicitor General Starr, Assistant Attorney General Mueller, and Deputy Solicitor General Roberts filed a brief for the United States as amicus curiae urging reversal.

Elizabeth

Anthony Kennedy, Antonin Scalia, Criminal Procedure, Dissent, William Rehnquist

Jacobson v. United States

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

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, and with whom JUSTICE SCALIA joins except as to Part II, dissenting.

Keith Jacobson was offered only two opportunities to buy child pornography through the mail. Both times, he ordered. Both times, he asked for opportunities to buy more. He needed no Government agent to coax, threaten, or persuade him; no one played on his sympathies, friendship, or suggested that his committing the crime would further a greater good. In fact, no Government agent even contacted him face to face. The Government contends that from the enthusiasm with which Mr. Jacobson responded to the chance to commit a crime, a reasonable jury could permissibly infer beyond a reasonable doubt that he was predisposed to commit the crime. I agree. Cf. United States v. Hunt, 749 F.2d 1078, 1085 (CA4 1984) (ready response to solicitation shows predisposition), cert. denied, 472 U. S. 1018 (1985); United States v. Kaminski, 703 F.2d 1004, 1008 (CA7 1983) (” ‘the most important factor… is whether the defendant evidenced reluctance to engage in criminal activity which was overcome by repeated Government inducement”’) (quoting United States v. Reynoso-Ulloa, 548 F.2d 1329, 1336 (CA9 1977), cert. denied, 436 U. S. 926 (1978)); United States v. Sherman, 200 F.2d 880, 882 (CA2 1952) (indication of pre disposition is a defendant’s willingness to commit the offense “‘as evinced by ready complaisance'” (citation omitted)).

The first time the Government

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

Blessing v. Freestone

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

JUSTICE O’CONNOR delivered the opinion of the Court. This case concerns a lawsuit brought by five mothers in Arizona whose children are eligible to receive child support services from the State pursuant to Title IV -D of the Social Security Act, as added, 88 Stat. 2351, and as amended, 42 U. S. C. §§ 651-669b (1994 ed. and Supp. II). These custodial parents sued the director of Arizona’s child support agency

by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Bruce M. Botelho of Alaska, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Pamela S. Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Theodore R. Kulongoski of Oregon, Thomas W Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South

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

Lopez v. Monterey County

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

JUSTICE O’CONNOR delivered the opinion of the Court. This appeal presents a challenge to an order by a threejudge District Court for the Northern District of California that authorized Monterey County to conduct judicial elections under an election plan that has not received federal approval pursuant to § 5 of the Voting Rights Act.

I

The State of California has 58 counties, one of which is Monterey County (hereinafter County). In 1971, the Attorney General designated the County a covered jurisdiction under § 4(b) of the Voting Rights Act of 1965, 79 Stat. 438, as amended, 42 U. S. C. § 1973b(b). 36 Fed. Reg. 5809 (1971); see 28 CFR pt. 51, App. (1995). As a result, the County became subject to the federal preclearance requirements set forth in § 5 of the Voting Rights Act, 42 U. S. C. § 1973c.

*Sidney S. Rosdeitcher, Paul C. Saunders, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Brenda Wright, Samuel L. Walters, Laughlin McDonald, Neil Bradley, Steven R. Shapiro, Elaine R. Jones, Norman J. Chachkin, and Jacqueline A. Berrien filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

Sharon L. Browne and Deborah J. La Fetra filed a brief for the Pacific Legal Foundation as amicus curiae urging affirmance.

Barbara McDowell and Elwood G. Lui filed a brief for the California Judges Association as amicus curiae. Section 5 governs changes in voting procedures, with the purpose of preventing jurisdictions covered by its requirements

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, Judicial Power, Majority, Stephen Breyer, William Rehnquist

United States v. Hays

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, Judicial Power, Majority, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. We held inShawv.Reno,509 U. S. 630(1993), that a plaintiff may state a claim for relief under the Equal Protection Clause of the Fourteenth Amendment by alleging that a State “adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race,

tBriefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Laughlin McDonald, Neil Bradley, and Steven R. Shapiro; for the Congressional Black Caucus by A. Leon Higginbotham, Jr., and Pamela S. Karlan; for the National Bar Association et al. by Koteles Alexander and Brian J. Murphy; and for Bernadine St. Cyr et al. by Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Charles Stephen Ralston, Jacqueline A. Berrien, Thomas J. Henderson, Brenda Wright, J. Gerald Hebert, and Robert B. McDuff

Briefs of amici curiae urging affirmance were filed for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; for the South Carolina Senate et al. by Mark A. Packman and Benjamin E. Griffith; and for Ruth O. Shaw et al. by Robinson O. Everett and Clifford Dougherty.

William H. Mellor III filed a brief for the Institute for Justice as amicus curiae. and that the separation lacks sufficient justification.” Id., at 658. Appellees Ray Hays, Edward Adams, Susan Shaw Singleton, and Gary Stokley claim that the State of Louisiana’s congressiona

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

Witte v. United States

Anthony Kennedy, 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.t The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits successive prosecution or multiple punishment for “the same offence.” This case, which involves application of the United States Sentencing Guidelines, asks us to consider whether a court violates that proscription by convicting and sentencing a defendant for a crime when the conduct underlying that offense has been considered in determining the defendant’s sentence for a previous conviction.

I

In June 1990, petitioner Steven Kurt Witte and several co-conspirators, including Dennis Mason and Tom Pokorny, arranged with Roger Norman, an undercover agent of the Drug Enforcement Administration, to import large amounts of marijuana from Mexico and cocaine from Guatemala. Norman had the task offiying the contraband into the United States, with Witte providing the ground transportation for the drugs once they had been brought into the country. The following month, the Mexican marijuana source advised the conspiracy participants that cocaine might be added to the

*Peter Goldberger and Scott A. Srebnick filed a brief for the National Association of Legal Defense Lawyers as amicus curiae urging reversal. tTHE CHIEF JUSTICE and JUSTICE KENNEDY join all but Part III of this opinion, and JUSTICE STEVENS joins only Part III. first shipment if there was room on the plane or if an insufficient quantity of marijuana was available. Norman was informed

Clarence Thomas, David Souter, Dissent, Federal Taxation

Commissioner v. Schleier

Clarence Thomas, David Souter, Dissent, Federal Taxation / By

JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins, and with whom JUSTICE SOUTER joins with respect to Part II, dissenting.

Age discrimination inflicts a personal injury. Even under the principles set forth in United States v. Burke, 504 U. S. 229 (1992), the damages received from a claim of such discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) are received “on account of” that personal injury and therefore excludable from taxable income under 26 U. S. C. § 104(a)(2). Unless the Court reads § 104(a)(2) to permit exclusion only of damages received for tangible injuries (i. e., physical and mental injuries)-a reading rejected by eight Members of the Court in Burke and contradicted by an agency’s reasonable interpretation of the statute it administers-the inescapable conclusion is that ADEA damages awards, are excludable.

I

It is not disputed that the damages received by respondents constitute gross income under 26 U. S. C. § 61(a) unless excluded elsewhere; the question is whether such damages fall within § 104(a)(2), which excludes from taxable income “the amount of any damages received (whether by suit or agreement and whether as lump sums or periodic payments) on account of personal injuries or sickness…. ” What constitutes “damages received on account of personal injuries” is not obvious from the text or history of the statute, and since 1960 Internal Revenue Service (IRS) regulations have defined the phrase with reference to traditional tort

Antonin Scalia, Clarence Thomas, First Amendment, Partial concurrence, partial dissent, Ruth Bader Ginsburg

Turner Broadcasting System Inc. v. FCC

Antonin Scalia, Clarence Thomas, First Amendment, Partial concurrence, partial dissent, Ruth Bader Ginsburg / By

JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE GINSBURG join, and with whom JUSTICE THOMAS joins as to Parts I and III, concurring in part and dissenting in part.

There are only so many channels that any cable system can carry. If there are fewer channels than programmers who want to use the system, some programmers will have to be dropped. In the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102-385, 106 Stat. 1460, Congress made a choice: By reserving a little over one-third of the channels on a cable system for broadcasters, it ensured that in most cases it will be a cable programmer who is dropped and a broadcaster who is retained. The question presented in this case is whether this choice comports with the commands of the First Amendment.

I A

The 1992 Cable Act implicates the First Amendment rights of two classes of speakers. First, it tells cable operators which programmers they must carry, and keeps cable operators from carrying others that they might prefer. Though cable operators do not actually originate most of the programming they show, the Court correctly holds that they are, for First Amendment purposes, speakers. Ante, at 636. Selecting which speech to retransmit is, as we know from the example of publishing houses, movie theaters, bookstores, and Reader’s Digest, no less communication than is creating the speech in the first place.

Second, the Act deprives a certain class of video programmers-those