Supreme Court Opinions

Concurrence, Judicial Power, Warren Burger, William Rehnquist

Diamond v. Charles

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment.

I join the Court’s judgment and Part I of its opinion, and I agree with much of the Court’s discussion of.why Dr. Diamond’s asserted interests in defending the Illinois Abortion Law do not satisfy the Art. III standing requirement. I write separately, however, because I do not agree with the Court’s reasons for rejecting Dr. Diamond’s contention that Illinois’ presence as an appellee ensures that a justiciable controversy is before us. In my view, Dr. Diamond was not a proper intervenor in the Court of Appeals, and therefore Illinois is not before this Court in any capacity, because Diamond was not authorized to bring this appeal under 28 U.S.C. § 1254(2).

The Court assumes that Diamond could properly bring an appeal under § 1254(2), and therefore that Illinois is present in this Court as an appellee under this Court’s Rule 10.4. The Court then asserts that Illinois is not “the functional equivalent of an appellant” by virtue of its status as a party under Rule 10.4. Ante at 476 U. S. 62 -63. On this basis, the Court concludes that Illinois’ “failure to invoke our jurisdiction leaves the Court without a case’ or `controversy’ between appellees and the State of Illinois,” ante at 476 U. S. 63 -64, even if Illinois’ interests are actually adverse to appellees’ interests. I believe this analysis is needlessly inconsistent with this Court’s opinion in Director,

Antonin Scalia, Clarence Thomas, Criminal Procedure, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Dretke v. Haley

Justice O’Connor delivered the opinion of the Court.
Out of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default. We have recognized a narrow exception to the general rule when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty. Murray v. Carrier, 477 U. S. 478 (1986); Sawyer v. Whitley, 505 U. S. 333 (1992). The question before us is whether this exception applies where an applicant asserts “actual innocence” of a noncapital sentence. Because the District Court failed first to consider alternative grounds for relief urged by respondent, grounds that might obviate any need to reach the actual innocence question, we vacate the judgment and remand.
I
In 1997, respondent Michael Wayne Haley was arrested after stealing a calculator from a local Wal-Mart and attempting to exchange it for other merchandise. Respondent was charged with, and found guilty at trial of, theft of property valued at less than $1,500, which, because respondent already had two prior theft convictions, was a “state jail felony” punishable by a maximum of two years in prison. App. 8; Tex. Penal Code Ann. §31.03(e)(4)(D) (Supp. 2004). The State also charged respondent as a habitual felony offender. The indictment alleged that respondent had two prior felony convictions and that the first—a 1991 conviction for delivery of amphetamine— “became final prior to the commission” of the second—a 1992 robbery. App. 9. The timing of the first conviction and the second offense is significant: Under Texas’ habitual offender statute, only a defendant convicted of a felony who “has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, … shall be punished for a second-degree felony.” §12.42(a)(2) (emphasis added). A second degree felony carries a minimum sentence of 2 and a maximum sentence of 20 years in prison. §12.33(a).
Texas provides for bifurcated trials in habitual offender cases. Tex. Code Crim. Proc. Ann., Art. 37.07, §3 (Vernon Supp. 2004). If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent’s trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18, 1991, and attempted robbery on September 9, 1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991—three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State’s witness or to put on any evidence.
The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of 16½ years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent’s conviction and sentence; the Texas Court of Criminal Appeals refused respondent’s petition for discretionary review.
Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87–88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent’s related ineffective assistance of counsel claim, saying only that “counsel was not ineffective” for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent’s state habeas application. Id., at 109.
In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118–119; id., at 122, 124, 126–127. The State conceded that respondent was “correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140. Rather than agree to resentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal. Id., at 142–144. The Magistrate Judge, to whom the habeas application had been referred, recommended excusing the procedural default and granting the sufficiency of the evidence claim because respondent was “ ‘actually innocent’ of a sentence for a second-degree felony.” Haley v. Director, Texas Dept. of Criminal Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept. 13, 2001) p. 10, App. to Pet. for Cert. 49a (quoting Sones v. Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recommended relief on the erroneous enhancement claim, the Magistrate Judge did not address respondent’s related ineffective assistance of counsel challenges. App. to Pet. for Cert. 50a–52a. The District Court adopted the Magistrate Judge’s report, granted the application, and ordered the State to resentence respondent “without the improper enhancement.” Id., at 36a–37a (Oct. 27, 2001).
The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that the actual innocence exception “applies to noncapital sentencing procedures involving a career offender or habitual felony offender.” Haley v. Cockrell, 306 F. 3d 257, 264 (2002). The Fifth Circuit thus joined the Fourth Circuit in holding that the exception should not extend beyond allegedly erroneous recidivist enhancements to other claims of noncapital factual sentencing error: “[T]o broaden the exception further would ‘swallow’ the ‘cause portion of the cause and prejudice requirement’ and it ‘would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse procedural default.’ ” Id., at 266 (quoting United States v. Mikalajunas, 186 F. 3d 490, 494–495 (CA4 1999)). Finding the exception satisfied, the panel then granted relief on the merits of respondent’s otherwise defaulted sufficiency of the evidence claim. In so doing, the panel assumed that challenges to the sufficiency of noncapital sentencing evidence are cognizable on federal habeas under Jackson v. Virginia, 443 U. S. 307 (1979). 306 F. 3d, at 266–267 (citing French v. Estelle, 692 F. 2d 1021, 1024–1025 (CA5 1982)).
The Fifth Circuit’s decision exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context. Compare Embrey v. Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual innocence exception for noncapital sentencing error); Reid v. Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v. Superintendent, Great Meadow Correctional Facility, 219 F. 3d 162 (CA2 2000) (actual innocence exception applies in noncapital sentencing context when error is related to finding of predicate act forming the basis for enhancement), and Mikalajunas, supra (actual innocence exception applies in noncapital sentencing context where error relates to a recidivist enhancement). We granted the State’s request for a writ of certiorari, 540 U. S. ___ (2003), and now vacate and remand.
II
The procedural default doctrine, like the abuse of writ doctrine, “refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” McCleskey v. Zant, 499 U. S. 467, 489 (1991). A corollary to the habeas statute’s exhaustion requirement, the doctrine has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds. Wainwright v. Sykes, 433 U. S. 72, 81 (1977); Brown v. Allen, 344 U. S. 443, 486–487 (1953). But, while an adequate and independent state procedural disposition strips this Court of certiorari jurisdiction to review a state court’s judgment, it provides only a strong prudential reason, grounded in “considerations of comity and concerns for the orderly administration of justice,” not to pass upon a defaulted constitutional claim presented for federal habeas review. Francis v. Henderson, 425 U. S. 536, 538– 539 (1976); see also Fay v. Noia, 372 U. S. 391, 399 (1963) (“[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute”). That being the case, we have recognized an equitable exception to the bar when a habeas applicant can demonstrate cause and prejudice for the procedural default. Wainwright, supra, at 87. The cause and prejudice requirement shows due regard for States’ finality and comity interests while ensuring that “fundamental fairness [remains] the central concern of the writ of habeas corpus.” Strickland v. Washington, 466 U. S. 668, 697 (1984).
The cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice. Murray v. Carrier, 477 U. S. 478 (1986), thus recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Id., at 496; accord, Schlup v. Delo, 513 U. S. 298 (1995). We subsequently extended this exception to claims of capital sentencing error in Sawyer v. Whitley, 505 U. S. 333 (1992). Acknowledging that the concept of “actual innocence” did not translate neatly into the capital sentencing context, we limited the exception to cases in which the applicant could show “by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Id., at 336.
We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default.
This avoidance principle was implicit in Carrier itself, where we expressed confidence that, “for the most part, ‘victims of fundamental miscarriage of justice will meet the cause-and-prejudice standard.’ ” 477 U. S. , at 495–496 (quoting Engle v. Isaac, 456 U. S. 107, 135 (1982)). Our confidence was bolstered by the availability of ineffective assistance of counsel claims—either as a ground for cause or as a free-standing claim for relief—to safeguard against miscarriages of justice. The existence of such safeguards, we observed, “may properly inform this Court’s judgment in determining ‘[w]hat standards should govern the exercise of the habeas court’s equitable discretion’ with respect to procedurally defaulted claims.” Carrier, supra, at 496 (quoting Reed v. Ross, 468 U. S. 1, 9 (1984)).
Petitioner here conceded at oral argument that respondent has a viable and “significant” ineffective assistance of counsel claim. Tr. of Oral Arg. 18 (“[W]e agree at this point there is a very significant argument of ineffective assistance of counsel”); see also id., at 7 (agreeing “not [to] raise any procedural impediment” to consideration of the merits of respondent’s ineffective assistance claim on remand). Success on the merits would give respondent all of the relief that he seeks— i.e., resentencing. It would also provide cause to excuse the procedural default of his sufficiency of the evidence claim. Carrier, supra, at 488.
Contrary to the dissent’s view, see post, at 2 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be “clear” or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals. And because petitioner has assured us that it will not seek to reincarcerate respondent during the pendency of his ineffective assistance claim, Tr. of Oral Arg., at 52 (“[T]he state is willing to allow the ineffective assistance claim to be litigated before proceeding to reincarcerate [respondent]”), the negative consequences for respondent of our judgment to vacate and remand in this case are minimal.
While availability of other remedies alone would be sufficient justification for a general rule of avoidance, the many threshold legal questions often accompanying claims of actual innocence provide additional reason for restraint. For instance, citing Jackson v. Virginia, 443 U. S. 307 (1979), respondent here seeks to bring through the actual innocence gateway his constitutional claim that the State’s penalty-phase evidence was insufficient to support the recidivist enhancement. But the constitutional hook in Jackson was In re Winship, 397 U. S. 358 (1970), in which we held that due process requires proof of each element of a criminal offense beyond a reasonable doubt. We have not extended Winship ’s protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U. S. 224 (1998); see also Apprendi v. New Jersey, 530 U. S. 466, 488–490 (2000) (reserving judgment as to the validity of Almendarez-Torres ); Monge v. California, 524 U. S. 721, 734 (1998) (Double Jeopardy Clause does not preclude retrial on a prior conviction used to support recidivist enhancement). Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. Brief for Respondent 30–31. These difficult constitutional questions, simply assumed away by the dissent, see post, at 2 (citing Jackson, supra, and Thompson v. Louisville, 362 U. S. 199 (1960)), are to be avoided if possible.
To be sure, not all claims of actual innocence will involve threshold constitutional issues. Even so, as this case and the briefing illustrate, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Whether and to what extent the exception extends to noncapital sentencing error is just one example. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Antonin Scalia, Civil Rights, Concurrence

Edelman v. Lynchburg College

JUSTICE O’CONNOR, with whom JUSTICE SCALIA joins, concurring in the judgment.

The Court today holds that there is no need in this case to defer to the Equal Employment Opportunity Commission’s regulation because the agency’s position is the one it “would adopt even if there were no formal rule and [the Court] were interpreting the statute from scratch.” Ante, at 114. I do not agree that the EEOC has adopted the most natural interpretation of Title VII’s provisions regarding the filing with the EEOC of charges of discrimination. See 42 U. S. C. § 2000e-5 (1994 ed.). But, because the statute is at least somewhat ambiguous, I would defer to the agency’s interpretation. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984); EEOC v. Commercial Office Products Co., 486 U. S. 107, 125 (1988) (O’CONNOR, J., concurring in part and concurring in judgment) (“[D]eference [to the EEOC] is particularly appropriate on this type of technical issue of agency procedure”). I think the regulation, 29 CFR § 1601.12(b) (1997), should be sustained on this alternative basis.

Title VII requires “charges” of discrimination to “be in writing under oath or affirmation.” 42 U. S. C. § 2000e-5(b). It also requires “charge[s]” to “be filed within one hundred and eighty [or in some circumstances three hundred] days after the alleged unlawful employment practice occurred.” § 2000e-5(e)(1). The most natural reading of these provisions is that the first is intended

Byron White, Economic Activity, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan

Director OWCP v. Perini North River Assocs

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1972, Congress amended the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. (part 2) 1424, as amended, 33 U.S.C. § 901 et seq. (1976 ed. and Supp. V) (hereinafter LHWCA or Act). Before 1972, LHWCA coverage extended only to injuries sustained on the actual “navigable waters of the United States (including any dry dock).” 44 Stat. (part 2) 1426. As part of its 1972 Amendments of the Act, Congress expanded the “navigable waters” situs to include certain adjoining land areas, § 3(a), 86 Stat. 1251, 33 U.S.C. § 903(a). At the same time, Congress added a status requirement that employees covered by the Act must be “engaged in maritime employment” within the meaning of § 2(3) of the Act. [ Footnote 1 ] We granted certiorari in this case, 455 U.S. 937 (1982), to consider whether a marine construction worker, who was injured while performing his job upon actual navigable waters, [ Footnote 2 ] and who would have been covered by the Act before 1972, is “engaged in maritime employment,” and thus covered by the amended Act. [ Footnote 3 ] We hold that the worker is “engaged in maritime employment” for purposes of coverage under the amended LHWCA. Accordingly, we reverse the decision below.

I

The facts are not in dispute. Respondent Perini North River Associates (Perini) contracted to build the foundation of a sewage treatment plant that extends approximately 700 feet over the Hudson River between 136th and 145th Streets

Criminal Procedure, John Paul Stevens, Partial concurrence, partial dissent

Estelle v. McGuire

JUSTICE O’CONNOR, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part.

I agree with the Court that the evidence of battered child syndrome was relevant. The State had to prove that Mark McGuire intended to kill his daughter, and the evidence that Tori was a battered child was probative of causation and intent. I therefore join Part I of the Court’s opinion.

I do not join Part II of the opinion because I think there is a reasonable likelihood that the jury misapplied the prior acts instruction. The trial court instructed the jury that evidence of Tori’s prior injuries had been admitted to show that McGuire had committed offenses similar to that for which he was on trial, and that, if the jury found a “clear connection” between the prior offenses and the charged offense, “it may be logically concluded that if the Defendant committed other offenses, he also committed the crime charged in this case.” App.41. In my view, the instruction encouraged the jury to assume that McGuire had inflicted the prior injuries and then directed the jury to conclude that the prior abuser was the murderer. Because the instruction may have relieved the State of its burden of proving the identity of Tori’s murderer beyond a reasonable doubt, I would hold that the instruction was error and remand to the Court of Appeals for a determination of whether that error was harmless.

The fact that a 6-month-old child was repeatedly beaten in the course of her short life is so horrifying

Dissent, First Amendment

Edenfield v. Fane

JUSTICE O’CONNOR, dissenting.

I continue to believe that this Court took a wrong turn with Bates v. State Bar of Arizona, 433 U. S. 350 (1977), and that it has compounded this error by finding increasingly unprofessional forms of attorney advertising to be protected speech. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988); Peel v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U. S. 91 (1990) (plurality opinion). These cases consistently focus on whether the challenged advertisement directly harms the listener: whether it is false or misleading, or amounts to “overreaching, invasion of privacy, [or] the exercise of undue influence,” Shapero, supra, at 475. This focus is too narrow. In my view, the States have the broader authority to prohibit commercial speech that, albeit not directly harmful to the listener, is inconsistent with the speaker’s membership in a learned profession and therefore damaging to the profession and society at large. See Zauderer, supra, at 676-677 (O’CONNOR, J., concurring in part, concurring in judgment in part, and dissenting in part); Shapero, supra, at 488-491 (O’CONNOR, J., dissenting); Peel, supra, at 119 (O’CONNOR, J., dissenting). In particular, the States may prohibit certain “forms of competition usual in the business world,” Goldfarb v. Virginia State Bar, 421 U. S. 773, 792 (1975) (internal quotation marks omitted), on the grounds

Criminal Procedure, Dissent

Doggett v. United States

JUSTICE O’CONNOR, dissenting.

I believe the Court of Appeals properly balanced the considerations set forth in Barker v. Wingo, 407 U. S. 514 (1972). Although the delay between indictment and trial was lengthy, petitioner did not suffer any anxiety or restriction on his liberty. The only harm to petitioner from the lapse of time was potential prejudice to his ability to defend his case. We have not allowed such speculative harm to tip the scales. Instead, we have required a showing of actual prejudice to the defense before weighing it in the balance. As we stated in United States v. Loud Hawk, 474 U. S. 302, 315 (1986), the “possibility of prejudice is not sufficient to support respondents’ position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.” The Court of Appeals followed this holding, and I believe we should as well. For this reason, I respectfully dissent.

Notes

3 Citing United States v. Broce, 488 U. S. 563, 569 (1989), the Government argues that, by pleading guilty, Doggett waived any right to claim that the delay would have prejudiced him had he gone to trial. Brief for United States 30. Yet Doggett did not sign a guilty plea simpliciter, but a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), thereby securing

Anthony Kennedy, Antonin Scalia, Byron White, David Souter, Economic Activity, John Paul Stevens, Majority, Thurgood Marshall, William Rehnquist

Feist Pubs. Inc. v. Rural Tel. Svc. Co. Inc

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to clarify the extent of copyright protection available to telephone directory white pages.

I

Rural Telephone Service Company is a certified public utility that provides telephone service to several communities in northwest Kansas. It is subject to a state regulation that requires all telephone companies operating in Kansas to issue annually an updated telephone directory. Accordingly, as a condition of its monopoly franchise, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural’s subscribers, together with their towns and telephone numbers. The yellow pages list Rural’s business subscribers alphabetically by category, and feature classified advertisements of various sizes. Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements.

Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. Unlike a typical directory, which covers only a particular calling area, Feist’s area-wide directories cover a much larger geographical range, reducing the need to call directory assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different telephone service areas in 15 counties and contains 46,878 white pages listings -compared to Rural’s approximately

Dissent, Federalism, William Rehnquist

Felder v. Casey

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE joins, dissenting.

A state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation.

Robertson v. Wegmann, 436 U. S. 584, 436 U. S. 593 (1978). Disregarding this self-evident principle, the Court today holds that Wisconsin’s notice of claim statute is preempted by federal law as to actions under 42 U.S.C. § 1983 filed in state court. This holding is not supported by the statute whose preemptive force it purports to invoke, or by our precedents. Relying only on its own intuitions about “the goals of the federal civil rights laws,” ante at 487 U. S. 138, the Court fashions a new theory of preemption that unnecessarily and improperly suspends a perfectly valid state statute. This Court has said that “unenacted approvals, beliefs, and desires are not laws.” Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 U. S. 495, 485 U. S. 501 (1988). Today’s exercise departs not only from that unquestionable proposition, but even from the much more obvious principle that unexpressed approvals, beliefs, and desires are not laws.

Wisconsin’s notice of claim statute, which imposes a limited exhaustion of remedies requirement on those with claims against municipal governments and their officials, serves at least two important purposes apart from providing municipal defendants with a special affirmative defense in litigation. First, the statute helps ensure

Concurrence, First Amendment

FEC v. Mass. Cit. for Life

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

I join Parts I, II, III-B, and III-C, and I concur in the Court’s judgment that § 316 of the Federal Election Campaign Act (Act), 2 U.S.C. § 441b, is unconstitutional as applied to the conduct of appellee Massachusetts Citizens for Life, Inc. (MCFL), at issue in this case. I write separately, however, because I am concerned that the Court’s discussion of the Act’s disclosure requirements may be read as moving away from the teaching of Buckley v. Valeo, 424 U. S. 1 (1976); see ante at 479 U. S. 254 -255. In Buckley, the Court was concerned not only with the chilling effect of reporting and disclosure requirements on an organization’s contributors, 424 U.S. at 424 U. S. 66 -68, but also with the potential burden of disclosure requirements on a group’s own speech. Id. at 424 U. S. 74 -82. The Buckley Court concluded that disclosure of a group’s independent campaign expenditures serves the important governmental interest of “shed[ding] the light of publicity” on campaign financing, thereby helping voters to evaluate the constituencies of those who seek federal office. Id. at 424 U. S. 81. As a result, the burden of disclosing independent expenditures generally is “a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.” Id. at 424 U. S. 82.

In my view, the significant burden on MCFL in this case comes not from