Dissent, Economic Activity

Chem. Mfrs. Ass’n v. NRDC

Dissent, Economic Activity / By

JUSTICE O’CONNOR, dissenting.

I join Parts I, II, and III of JUSTICE MARSHALL’s dissent. They accurately demonstrate that the Court’s interpretation of § 301(1) of the Clean Water Act, 33 U.S.C. § 1311(1), is inconsistent with the language of the statute and its legislative history. In my opinion, this alone is sufficient grounds for affirming the judgment of the Court of Appeals. I express no view as to Part IV of the dissent, because I think it is not necessary to the disposition of these cases.

Dissent, Lewis Powell, Unions

Charles D. Bonanno Linen Serv. Inc. v. NLRB

Dissent, Lewis Powell, Unions / By

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

I join THE CHIEF JUSTICE in the introductory comments and Part I of his dissent. However, I write separately because I believe labor peace would be advanced by avoiding the absolute positions adopted both by the majority and by the dissent of THE CHIEF JUSTICE. Because I am convinced that the Board should examine the circumstances surrounding and following an impasse to determine whether an unusual circumstance sufficient to justify withdrawal has occurred, and because I cannot accept the Court’s conclusory statements concerning the effects of all interim agreements, I respectfully dissent.

I

The Court agrees with the Board that an impasse is not an unusual circumstance “sufficiently destructive of group bargaining to justify unilateral withdrawal.” The Board adopted that position after identifying an impasse as (1) simply a “temporary deadlock or hiatus in negotiations” (2) which may be brought about intentionally by one of the parties and (3) which in almost all cases is “eventually broken, either through a change of mind or the application of economic force.” Charles D. Bonanno Linen Service, Inc., 243 N.L.R.B. 1093, 1093-1094 (1979). There are, of course, impasses that fit this description. Others do not. Unfortunately, having developed its premise, the Board has chosen to ignore the reasons which justified it, and now “reasons” that an impasse, regardless of duration, does not justify employer withdrawal. The

Anthony Kennedy, Antonin Scalia, David Souter, Economic Activity, Majority, Ruth Bader Ginsburg, William Rehnquist

Chandris Inc. v. Latsis

Anthony Kennedy, Antonin Scalia, David Souter, Economic Activity, Majority, Ruth Bader Ginsburg, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court. This case asks us to clarify what “employment-related connection to a vessel in navigation,”McDermott Int’Z, Inc.v.

*Briefs of amici curiae urging reversal were filed for the City of New York by Paul A. Crotty and Leonard J. Koerner; and for TECO Transport & Trade Corp. et al. by Robert B. Acomb, Jr., and Robert T. Lemon II.

Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Stevan C. Dittman and Larry S. Stewart; and for the United Brotherhood of Carpenters and Joiners of America by John R. Hillsman. Wilander, 498 U. S. 337, 355 (1991), is necessary for a maritime worker to qualify as a seaman under the Jones Act, 46 U. S. C. App. § 688(a). In Wi lander, we addressed the type of activities that a seaman must perform and held that, under the Jones Act, a seaman’s job need not be limited to transportation-related functions that directly aid in the vessel’s navigation. We now determine what relationship a worker must have to the vessel, regardless of the specific tasks the worker undertakes, in order to obtain seaman status.

I

In May 1989, respondent Antonios Latsis was employed by petitioner Chandris, Inc., as a salaried superintendent engineer. Latsis was responsible for maintaining and updating the electronic and communications equipment on Chandris’ fleet of vessels, which consisted of six passenger cruise ships. Each ship in the Chandris fleet carried between 12 and

Byron White, Harry Blackmun, John Paul Stevens, Judicial Power, Lewis Powell, Majority, Warren Burger, William Rehnquist

CFTC v. Schor

Byron White, Harry Blackmun, John Paul Stevens, Judicial Power, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The question presented is whether the Commodity Exchange Act (CEA or Act), 7 U.S.C. § 1 et seq., empowers the Commodity Futures Trading Commission (CFTC or Commission) to entertain state law counterclaims in reparation proceedings and, if so, whether that grant of authority violates Article III of the Constitution.

I

The CEA broadly prohibits fraudulent and manipulative conduct in connection with commodity futures transactions. In 1974, Congress “overhaul[ed]” the Act in order to institute a more “comprehensive regulatory structure to oversee the volatile and esoteric futures trading complex.” H.R.Rep. No. 93-975, p. 1 (1974). See Pub.L. 93-463, 88 Stat. 1389. Congress also determined that the broad regulatory powers of the CEA were most appropriately vested in an agency which would be relatively immune from the “political winds that sweep Washington.” H.R.Rep. No. 93-975, at 44, 70. It therefore created an independent agency, the CFTC, and entrusted to it sweeping authority to implement the CEA.

Among the duties assigned to the CFTC was the administration of a reparations procedure through which disgruntled customers of professional commodity brokers could seek redress for the brokers’ violations of the Act or CFTC regulations. Thus, § 14 of the CEA, 7 U.S.C. § 18 (1976 ed.), [ Footnote 1 ] provides that any person injured by such violations may apply to the Commission for an order directing the offender to pay reparations

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, Harry Blackmun, Majority, Ruth Bader Ginsburg, William Rehnquist

Caspari v. Bohlen

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, Harry Blackmun, Majority, Ruth Bader Ginsburg, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In Bullington v. Missouri, 451 U. S. 430 (1981), we held that a defendant sentenced to life imprisonment following a trial-like capital sentencing proceeding is protected by the Double Jeopardy Clause against imposition of the death penalty if he obtains reversal of his conviction and is retried and reconvicted. In this case we are asked to decide whether the Double Jeopardy Clause prohibits a State from twice subjecting a defendant to a noncapital sentence enhancement proceeding.

I

Respondent and others entered a jewelry store in St.

Louis County, Missouri, on April 17, 1981. Holding store employees and customers at gunpoint, they stole money and jewelry. After a jury trial, respondent was convicted on three counts of first-degree robbery. See Mo. Rev. Stat. § 569.020 (1978). The authorized punishment for that offense, a class A felony, is “a term of years not less than ten years and not to exceed thirty years, or life imprisonment.” Mo. Rev. Stat. § 558.011.1(1) (Supp. 1982).

Under Missouri law, the jury is to “assess and declare the punishment as a part of [the] verdict.” § 557.036.2. The judge is then to determine the punishment “having regard to the nature and circumstances of the offense and the history and character of the defendant,” § 557.036.1, although the sentence imposed by the judge generally cannot be more severe than the advisory sentence recommended by the jury. § 557.036.3. If the trial judge finds the

Dissent, Harry Blackmun, Judicial Power, Thurgood Marshall, William Brennan

Carden v. Arkoma Assocs

Dissent, Harry Blackmun, Judicial Power, Thurgood Marshall, William Brennan / By

Justice O’CONNOR, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting.

The only potentially nondiverse party in this case is a limited partner. All other parties, including the general partners and the limited partnership itself, assuming it is a citizen, are diverse. Thus, the Court has before it a single question -whether the citizenship of a limited partner must be counted for purposes of diversity jurisdiction. The Court first addresses whether the limited partnership is a “citizen.” I do not consider that issue, because even if we were to hold that a limited partnership is a citizen, we are still required to consider which, if any, of the other citizens before the Court as members of Arkoma Associates are real parties to the controversy, i.e., which parties have control over the subject of and litigation over the controversy. See Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 57 U. S. 328, (1854). Application of that test leads me to conclude that limited partners are not real parties to the controversy and, therefore, should not be counted for purposes of diversity jurisdiction.

I

The Court asserts that “[w]e have long since decided” to leave to Congress the issue of the proper treatment of unincorporated associations for diversity purposes, because the issue of which business association

is entitled to be considered a citizen’ for diversity purposes, and which of their members’ citizenship is to be consulted, are questions more readily

Concurrence, David Souter, First Amendment, Stephen Breyer

Capitol Square Review and Advisory Bd. v. Pinette

Concurrence, David Souter, First Amendment, Stephen Breyer / By

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

I join Parts I, II, and III of the Court’s opinion and concur in the judgment. Despite the messages of bigotry and racism that may be conveyed along with religious connotations by the display of a Ku Klux Klan cross, see ante, at 771 (THOMAS, J., concurring), at bottom this case must be understood as it has been presented to us-as a case about private religious expression and whether the State’s relationship to it violates the Establishment Clause. In my view, “the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols,” County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 628 (1989) (O’CONNOR, J., concurring in part and concurring in judgment), even where a neutral state policy toward private religious speech in a public forum is at issue. Accordingly, I see no necessity to carve out, as the plurality opinion would today, an exception to the endorsement test for the public forum context.

For the reasons given by JUSTICE SOUTER, whose opinion I also join, I conclude on the facts of this case that there is “no realistic danger that the community would think that the [State] was endorsing religion or any particular creed,” Lamb’s Chapel v. Center Moriches Union Free School Dist., 508

Concurrence, Due Process

California v. Trombetta

Concurrence, Due Process / By

JUSTICE O’CONNOR, concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional, law. See United States v. Augenblick, 393 U. S. 348, 393 U. S. 352 -353 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath analysis tests inadmissible as evidence against the accused. Id. at 393 U. S. 356. Similarly, the failure to employ alternative methods of testing blood alcohol concentrations is of no due process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.

Antonin Scalia, Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, William Rehnquist

California v. Superior Court

Antonin Scalia, Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant.

I

Richard and Judith Smolin were divorced in California in 1978. Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard. Until November, 1979, all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident. In August, 1979, however, Judith married James Pope, and in November, Mr. Pope’s work required that the family relocate to Oregon. When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest.

It is unnecessary to recite in detail all that ensued. Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard’s visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana. On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith. Richard was served, but did not appear in the Texas proceeding. Before the Texas decree was issued, however, Richard sought and obtained in California

Byron White, Criminal Procedure, Lewis Powell, Majority, Warren Burger, William Rehnquist

California v. Ramos

Byron White, Criminal Procedure, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to consider the constitutionality under the Eighth and Fourteenth Amendments of instructing a capital sentencing jury regarding the Governor’s power to commute a sentence of life without possibility of parole. Finding no constitutional defect in the instruction, we reverse the decision of the Supreme Court of California and remand for further proceedings.

I

On the night of June 2, 1979, respondent Marcelino Ramos participated in the robbery of a fast-food restaurant where he was employed as a janitor. As respondent’s codefendant placed a food order, respondent entered the restaurant, went behind the front counter into the work area, ostensibly for the purpose of checking his work schedule, and emerged with a gun. Respondent directed the two employees working that night into the restaurant’s walk-in refrigerator and ordered them to face the back wall. Respondent entered and emerged from the refrigerator several times, inquiring at one point about the keys to the restaurant safe. When he entered for the last time, he instructed the two employees to kneel on the floor of the refrigerator, to remove their hats, and to pray. Respondent struck both on the head and then shot them, wounding one and killing the other.

Respondent was charged with robbery, attempted murder, and first-degree murder. Defense counsel presented no evidence at the guilt phase of respondent’s trial, and the jury returned a verdict