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.

Civil Rights, Per curiam, Timeline

Bush v. Gore

Civil Rights, Per curiam, Timeline / By

PER CURIAM.
I
On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic candidates for President and Vice President. The State Supreme Court noted that petitioner George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. Gore v. Harris, 772 So. 2d 1243, 1248, n. 6. The court further held that relief would require manual recounts in all Florida counties where so-called “undervotes” had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican candidates for President and Vice President, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. 1046.

Dissent, Stephen Breyer

O’Connell v. Kirchner

Dissent, Stephen Breyer / By

ON APPLICATIONS FOR STAY
The applications for stay addressed to JUSTICE O’CONNOR and referred to the Court are denied.
JUSTICE O’CONNOR, with whom JUSTICE BREYER joins, dissenting.
Wrenching factual circumstances such as these have arrived on our doorstep twice in as many years. See DeBoer by Darrow v. DeBoer, 509 U.S. (1993). Baby Richard is nearly four years old. He has lived his entire life in the care of the Does, a couple who believed, at least initially, that he was legally their child. Otakar Kirchner, the boy’s biological father, was told for the first 57 days of the boy’s life that his son was dead. When Kirchner learned that Baby Richard had instead been put up for adoption by his biological mother, Kirchner immediately asserted his rights and sought the boy’s return. Last year, after finding Kirchner a fit parent and determining that he had adequately pursued his interest in the child, the Illinois Supreme Court invalidated the adoption, see In re Petition of Doe, 159 Ill. 2d 347, 638 N. E. 2d 181 (1994). We denied the petition for certiorari seeking review of that judgment, see 513 U.S. (1994). To date, Otakar Kirchner has never met his son.
One week ago, four hours after concluding oral argument on Kirchner’s habeas petition, the Illinois Supreme Court issued a one-line order directing the Does “to surrender forthwith custody of the child known as Baby Boy Richard” to Otakar Kirchner. In so doing, the court evidently did not apply a recent amendment to the state adoption

Concurrence, David Souter

Fargo Women’s Health Org. v. Schafer

Concurrence, David Souter / By

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

Applicants challenged certain provisions of the North Dakota Abortion Control Act, N. D. Cent. Code §§ 14-02.1-01 to 14-­02.1-12 (1991), in the United States District Court for the District of North Dakota. Relying on our decision in United States v. Salerno, 481 U. S. 739 (1987), the District Court granted summary judgment against applicants. The court reasoned that applicants could not mount a successful facial challenge because they were unable to show that “ ‘no set of circumstances exists under which the [challenged provisions] would be valid.’” Fargo Women’s Health Organization v. Skinner, No. A3-91-95 (Feb. 19, 1993) (quoting Salerno, supra, at 745). The court denied applicants’ motion for a stay and injunction pending appeal. See Fargo Women’s Health Organization v. Schafer, No. A3-91-95 (Mar. 9, 1993). The Court of’Appeals for the Eighth Circuit also denied a motion for stay and injunction pending appeal. It agreed with the District Court that the Salerno standard applied and concluded that this Court’s decision last Term in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not counsel a different approach.. See Fargo Women’s Health Organization v. Schafer, No. 93-1579 (Mar. 30, 1993). The appeal was expedited, and argument is scheduled for April 14, 1993.

Applicants now ask us for a stay of the District Court’s judgment and for injunction relief. When a matter is pending before a

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, Majority, Timeline, William Rehnquist

Shaw v. Reno

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, Majority, Timeline, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional “right” to vote, and the propriety of racebased state legislation designed to benefit members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a 12th seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, the General Assembly passed new legislation creating a second majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim.

*Briefs of amici curiae urging reversal were filed for the American Jewish Congress by Marc D. Stern and Lois C. Waldman; for the Republican National Committee by Benjamin L. Ginsberg and Michael A. Hess; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.

Briefs of amici curiae urging affirmance were filed for the Democratic National Committee et al. by Wayne R. Arden and Jeffrey M. Wice; for

Concurrence, First Amendment

Board of Ed. of Kiryas Joel Village School Dist. v. Grumet

Concurrence, First Amendment / By

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

I

The question at the heart of these cases is: What may the government do, consistently with the Establishment Clause, to accommodate people’s religious beliefs? The history of the Satmars in Orange County is especially instructive on this, because they have been involved in at least three accommodation problems, of which these cases are only the most recent.

The first problem related to zoning law, and arose shortly after the Satmars moved to the town of Monroe in the early 1970’s. Though the area in which they lived was zoned for single-family homes, the Satmars subdivided their houses into several apartments, apparently in part because of their traditionally close-knit extended family groups. The Satmars also used basements of some of their buildings as schools and synagogues, which according to the town was also a zoning violation. See N. Y. Times, Oct. 17, 1976, section 1, p. 53, col. 1; App. 10-14.

Fortunately for the Satmars, New York state law had a way of accommodating their concerns. New York allows virtually any group of residents to incorporate their own village, with broad powers of self-government. The Satmars followed this course, incorporating their community as the village of Kiryas Joel, and their zoning problems, at least, were solved. Ante, at 691.

The Satmars’ next need for accommodation arose in the mid-1980’s. Satmar education is pervasively religious, and is provided through entirely

Clarence Thomas, Federalism, Partial concurrence, partial dissent

American Airlines Inc. v. Wolens

Clarence Thomas, Federalism, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, with whom JUSTICE THOMAS joins as to all but Part I-B, concurring in the judgment in part and dissenting in part.

In permitting respondents’ contract action to go forward, the Court arrives at what might be a reasonable policy judgment as to when state law actions against airlines should be pre-empted if we were free to legislate it. It is not, however, consistent with our controlling precedents, and it requires some questionable assumptions about the nature of contract law. I would hold that none of respondents’ actions may proceed.

I A

The Airline Deregulation Act of 1978 (ADA) says that “no State… shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.” 49 U. S. C. App. § 1305(a)(1).1 We considered the scope of that provision in Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992). We noted the similarity of § 1305’s language to the pre-emption provision in ERISA, 29 U. S. C. § 1144(a), and said that, like ERISA’s § 1144, § 1305’s words “express a broad pre-emptive purpose.” 504 U. S., at 383. We concluded that “State enforcement actions having a connection with, or reference to, airline ‘rates, routes, or services’ are pre-empted.” Id., at 384.

Applying Morales to this case, I agree with the Court that respondents’ consumer fraud and contract claims are “related to” airline “rates” and “services.” See ante, at 226. The Court says,