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

Byron White, David Souter, Dissent, Economic Activity

TXO Production Corp. v. Alliance Resources Corp

Byron White, David Souter, Dissent, Economic Activity / By

JUSTICE O’CONNOR, with whom JUSTICE WHITE joins, and with whom JUSTICE SOUTER joins as to Parts II-B-2, II-C, III, and IV, dissenting.

In Pacific Mut. Life Ins. Co. v. Has lip, 499 U. S. 1 (1991), this Court held out the promise that punitive damages awards would receive sufficient constitutional scrutiny to restore fairness in what is rapidly becoming an arbitrary and oppressive system. Today the Court’s judgment renders Haslip’s promise a false one. The procedures that converted this commercial dispute into a $10 million punitive verdict were wholly inadequate. Rather than producing a judgment founded on verifiable criteria, they produced a monstrous award-526 times actual damages and over 20 times greater than any punitive award in West Virginia history. Worse, the State Supreme Court of Appeals rejected petitioner’s challenge with only cursory analysis, observing that petitioner, rather than being “really stupid,” had been “really mean.” 187 W. Va. 457, 474-475, 419 S. E. 2d 870, 887-889 (1992). The court similarly refused to consider the possibility of remittitur because petitioner “and its agents and servants failed to conduct themselves as gentlemen.” Id., at 462, 419 S. E. 2d, at 875. In my view, due process does not tolerate such cavalier standards when so much is at stake. Because I believe that neither this award’s size nor the procedures that produced it are consistent with the principles this Court articulated in Haslip, I respectfully dissent.

I

Our system of

Antonin Scalia, Civil Rights, Clarence Thomas, Concurrence

Demore v. Kim

Antonin Scalia, Civil Rights, Clarence Thomas, Concurrence / By

JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JusTICE THOMAS join, concurring in part and concurring in the judgment.

I join all but Part I of the Court’s opinion because, a majority having determined there is jurisdiction, I agree with the Court’s resolution of respondent’s challenge on the merits. I cannot join Part I because I believe that 8 U. S. C. § 1226(e) unequivocally deprives federal courts of jurisdiction to set aside “any action or decision” by the Attorney General in detaining criminal aliens under § 1226(c) while removal proceedings are ongoing. That is precisely the nature of the action before us.

I

I begin with the text of the statute:”The Attorney General’s discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” § 1226(e) (emphasis added).

There is no dispute that after respondent’s release from prison in 1999, the Attorney General detained him “under this section,” i. e., under § 1226. And, the action of which respondent complains is one “regarding the detention or release of a[n] alien or the grant, revocation, or denial of bond or parole.” § 1226(e). In my view, the only plausible reading of § 1226(e) is that Congress intended to prohibit federal courts from “set[ting] aside” the Attorney General’s decision to deem a criminal

Civil Rights, Partial concurrence, partial dissent

Utah v. Evans

Civil Rights, Partial concurrence, partial dissent / By

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

In the year 2000 census, the Census Bureau used the statistical technique known as “hot-deck imputation” to calculate the state population totals that were used to apportion congressional Representatives. While I agree with the Court’s general description of the imputation process, its conclusion that the appellants have standing to challenge its use, and its conclusion that we otherwise have jurisdiction to consider that challenge, I would find that the Bureau’s use of imputation constituted a form of sampling and thus was prohibited by § 195 of the Census Act, 13 U. S. C. § 1 et seq. Therefore, while I concur in Parts I and II of the majority’s opinion, I respectfully dissent from Part III and have no occasion to decide whether the Constitution prohibits imputation, which the majority addresses in Part 11.

I

To conduct the year 2000 census, the Census Bureau (Bureau) first created a master address file that attempted to list every residential housing unit in the United States. See U. S. Dept. of Commerce, Economics and Statistics Admin., Census 2000 Operational Plan VI (Dec. 2000) (hereinafter Census 2000 Operational Plan). The Bureau then conducted a survey of every address on that list, primarily through the use of mail-back questionnaires. See id., at IX.A to IX.E; ante, at 457. As relevant here, these questionnaires requested the name of each person living at a given address. See Census 2000 Operational Plan

Anthony Kennedy, Antonin Scalia, Civil Rights, Partial concurrence, partial dissent, Stephen Breyer, William Rehnquist

National Railroad Passenger Corporation v. Morgan

Anthony Kennedy, Antonin Scalia, Civil Rights, Partial concurrence, partial dissent, Stephen Breyer, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, with whom JUSTICE SCALIA and JUSTICE KENNEDY join as to all but Part I, and with whom JUSTICE BREYER joins as to Part I, concurring in part and dissenting in part.

I join Part II-A of the Court’s opinion because I agree that Title VII suits based on discrete discriminatory acts are time barred when the plaintiff fails to file a charge with the Equal Employment Opportunity Commission (EEOC) within the 180or 300-day time period designated in the statute. 42 U. S. C. § 2000e-5(e)(1). I dissent from the remainder of the Court’s opinion, however, because I believe a similar restriction applies to all types of Title VII suits, including those based on a claim that a plaintiff has been subjected to a hostile work environment.

I

The Court today holds that, for discrete discriminatory acts, § 2000e-5(e)(1) serves as a form of statute oflimitations, barring recovery for actions that take place outside the charge-filing period. The Court acknowledges, however, that this limitations period may be adjusted by equitable doctrines. See ante, at 114, n. 7; see also Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982) (“We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”). Like the Court, I see no need to resolve fully the application of the

Antonin Scalia, First Amendment, Partial concurrence, partial dissent, William Rehnquist

Ashcroft v. Free Speech Coalition

Antonin Scalia, First Amendment, Partial concurrence, partial dissent, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join as to Part II, concurring in the judgment in part and dissenting in part.

The Child Pornography Prevention Act of 1996 (CPPA), 18 U. S. C. § 2251 et seq., proscribes the “knowin[gJ” reproduction, distribution, sale, reception, or possession of images that fall under the statute’s definition of child pornography, § 2252A(a). Possession is punishable by up to 5 years in prison for a first offense, § 2252A(b), and all other transgressions are punishable by up to 15 years in prison for a first offense, § 2252A(a). The CPP A defines child pornography to include “any visual depiction… of sexually explicit conduct” where “such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct,” § 2256(8)(B) (emphasis added), or “such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct,” § 2256(8)(D) (emphasis added). The statute defines “sexually explicit conduct” as “actual or simulated… sexual intercourse… ;… bestiality;… masturbation;… sadistic or masochistic abuse; or… lascivious exhibition of the genitals or pubic area of any person.” § 2256(2).

The CPPA provides for two affirmative defenses. First, a defendant is not liable for possession if the defendant possesses less than three proscribed images and

Civil Rights, Concurrence, John Paul Stevens, Stephen Breyer

Nevada v. Hicks

Civil Rights, Concurrence, John Paul Stevens, Stephen Breyer / By

JUSTICE O’CONNOR, with whom JUSTICE STEVENS and JUSTICE BREYER join, concurring in part and concurring in the judgment.

The Court holds that a tribe has no power to regulate the activities of state officials enforcing state law on land owned and controlled by the tribe. The majority’s sweeping opinion, without cause, undermines the authority of tribes to “‘make their own laws and be ruled by them.'” Strate v. A-l Contractors, 520 U. S. 438, 459 (1997) (quoting Williams v. Lee, 358 U. S. 217, 220 (1959)). I write separately because Part II of the Court’s decision is unmoored from our precedents.

I A

Today, the Court finally resolves that Montana v. United States, 450 U. S. 544 (1981), governs a tribe’s civil jurisdiction over nonmembers regardless of land ownership. Ante, at 358-360. This is done with little fanfare, but the holding is significant because we have equivocated on this question in the past.

In Montana, we held that the Tribe in that case could not regulate the hunting and fishing activities of nonmembers on nontriballand located within the geographical boundaries of the reservation. 450 U. S., at 557. We explained that the Tribe’s jurisdiction was limited to two instances-where a consensual relationship exists between the Tribe and nonmembers, or where jurisdiction was necessary to preserve tribal sovereignty-and we concluded that neither instance applied. Id., at 565-567; ante, at 358-360.

Given the facts of Montana, it was not clear whether the status of the

Civil Rights, Dissent

INS v. St. Cyr

Civil Rights, Dissent / By

JUSTICE O’CONNOR, dissenting.

I join Parts I and III of JUSTICE SCALIA’S dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this case falls outside the scope of that review for the reasons explained by JUSTICE SCALIA in Part II-B of his dissenting opinion. The question whether the Suspension Clause assures habeas jurisdiction in this particular case properly is resolved on this ground alone, and there is no need to say more.