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,

Concurrence, Criminal Procedure

Schlup v. Delo

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring.

I write to explain, in light of the dissenting opinions, what I understand the Court to decide and what it does not.

The Court holds that, in order to have an abusive or successive habeas claim heard on the merits, a petitioner who cannot demonstrate cause and prejudice “must show that it is more likely than not that no reasonable juror would have convicted him” in light of newly discovered evidence of innocence. Ante, at 327. This standard is higher than that required for prejudice, which requires only “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt,” Strickland v. Washington, 466 U. S. 668, 695 (1984). Instead, a petitioner does not pass through the gateway erected by Murray v. Carrier, 477 U. S. 478 (1986), if the district court believes it more likely than not that there is any juror who, acting reasonably, would have found the petitioner guilty beyond a reasonable doubt. And the Court’s standard, which focuses the inquiry on the likely behavior of jurors, is substantively different from the rationality standard of Jackson v. Virginia, 443 U. S. 307 (1979). Jackson, which emphasizes the authority of the factfinder to make conclusions from the evidence, establishes a standard of review for the sufficiency of record evidence-a standard that would be ill suited as a burden of proof, see Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern