Supreme Court Opinions

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

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Economic Activity, Majority, William Rehnquist

FDA v. Brown & Williamson Tobacco Corp

JUSTICE O’CONNOR delivered the opinion of the Court. This case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use. In 1996, the Food and Drug Administration (FDA), after having expressly disavowed any such authority since its inception, asserted jurisdiction to regulate tobacco products. See 61 Fed. Reg. 44619-45318. The FDA concluded that nicotine is a “drug” within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), 52 Stat. 1040, as amended, 21 U. S. C. § 301et seq.,and that cigarettes and smokeless tobacco are “combination products” that deliver nicotine to the body. 61 Fed. Reg. 44397 (1996). Pursuant to this authority, it promulgated regulations intended to reduce tobacco consumption among children and adolescents.Id.,at 4461544618. The agency believed that, because most tobacco consumers begin their use before reaching the age of 18, curbing tobacco use by minors could substantially reduce the prevalence of addiction in future generations and thus the incidence of tobacco-related death and disease.Id.,at 44398-44399.

Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority “in a manner that is inconsistent with the administrative structure that Congress enacted into law.” ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988). And although agencies are generally entitled to deference

Byron White, Economic Activity, John Paul Stevens, Lewis Powell, Majority, Warren Burger, William Brennan

FDIC v. Philadelphia Gear Corp

JUSTICE O’CONNOR delivered the opinion of the Court.

We granted certiorari to consider whether a standby letter of credit backed by a contingent promissory note is insured as a “deposit” under the federal deposit insurance program. We hold that, in light of the longstanding interpretation of petitioner Federal Deposit Insurance Corporation (FDIC) that such a letter does not create a deposit and, in light of the fact that such a letter does not entrust any noncontingent assets to the bank, a standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit.

I

Orion Manufacturing Corporation (Orion) was, at the time of the relevant transactions, a customer of respondent Philadelphia Gear Corporation (Philadelphia Gear). On Orion’s application, the Penn Square Bank, N.A. (Penn Square) issued a letter of credit for the benefit of Philadelphia Gear in the amount of $145,200. The letter of credit provided that a draft drawn upon the letter of credit would be honored by Penn Square only if accompanied by Philadelphia Gear’s “signed statement that [it had] invoiced Orion Manufacturing Corporation and that said invoices have remained unpaid for at least fifteen (15) days.” App. 25. Because the letter of credit was intended to provide payment to the seller only if the buyer of the invoiced goods failed to make payment, the letter of credit was what is commonly referred to as a “standby” or “guaranty” letter of credit. See, e.g., 12 CFR § 337.2(a),

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

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

Anthony Kennedy, Antonin Scalia, Clarence Thomas, Criminal Procedure, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Fellers v. United States

Justice O’Connor delivered the opinion of the Court.
After a grand jury indicted petitioner John J. Fellers, police officers arrested him at his home. During the course of the arrest, petitioner made several inculpatory statements. He argued that the officers deliberately elicited these statements from him outside the presence of counsel, and that the admission at trial of the fruits of those statements therefore violated his Sixth Amendment right to counsel. Petitioner contends that in rejecting this argument, the Court of Appeals for the Eighth Circuit improperly held that the Sixth Amendment right to counsel was “not applicable” because “the officers did not interrogate [petitioner] at his home.” 285 F. 3d 721, 724 (2002). We granted the petition for a writ of certiorari, 538 U. S. 905 (2003), and now reverse.
I
On February 24, 2000, after a grand jury indicted petitioner for conspiracy to distribute methamphetamine, Lincoln Police Sergeant Michael Garnett and Lancaster County Deputy Sheriff Jeff Bliemeister went to petitioner’s home in Lincoln, Nebraska, to arrest him. App. 111. The officers knocked on petitioner’s door and, when petitioner answered, identified themselves and asked if they could come in. Ibid. Petitioner invited the officers into his living room. Ibid.
The officers advised petitioner they had come to discuss his involvement in methamphetamine distribution. Id.,at 112. They informed petitioner that they had a federal warrant for his arrest and that a grand jury had indicted him for conspiracy to distribute methamphetamine.Ibid. The officers told petitioner that the indictment referred to his involvement with certain individuals, four of whom they named.Ibid. Petitioner then told the officers that he knew the four people and had used methamphetamine during his association with them.Ibid.
After spending about 15 minutes in petitioner’s home, the officers transported petitioner to the Lancaster County jail. Ibid. There, the officers advised petitioner for the first time of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and Patterson v. Illinois, 487 U. S. 285 (1988). App. 112 . Petitioner and the two officers signed a Miranda waiver form, and petitioner then reiterated the inculpatory statements he had made earlier, admitted to having associated with other individuals implicated in the charged conspiracy, App. 29–39, and admitted to having loaned money to one of them even though he suspected that she was involved in drug transactions, id., at 34.
Before trial, petitioner moved to suppress the inculpatory statements he made at his home and at the county jail. A Magistrate Judge conducted a hearing and recommended that the statements petitioner made at his home be suppressed because the officers had not informed petitioner of his Miranda rights. App. 110–111. The Magistrate Judge found that petitioner made the statements in response to the officers’ “implici[t] questions,” noting that the officers had told petitioner that the purpose of their visit was to discuss his use and distribution of methamphetamine. Id., at 110. The Magistrate Judge further recommended that portions of petitioner’s jailhouse statement be suppressed as fruits of the prior failure to provide Miranda warnings. App. 110–111.
The District Court suppressed the “unwarned” statements petitioner made at his house but admitted petitioner’s jailhouse statements pursuant to Oregon v. Elstad, 470 U. S. 298 (1985), concluding petitioner had knowingly and voluntarily waived his Miranda rights before making the statements. App. 112–115.
Following a jury trial at which petitioner’s jailhouse statements were admitted into evidence, petitioner was convicted of conspiring to possess with intent to distribute methamphetamine. Petitioner appealed, arguing that his jailhouse statements should have been suppressed as fruits of the statements obtained at his home in violation of the Sixth Amendment. The Court of Appeals affirmed. 285 F. 3d 721 (CA8 2002). With respect to petitioner’s argument that the officers’ failure to administer Miranda warnings at his home violated his Sixth Amendment right to counsel under Patterson, supra, the Court of Appeals stated: “ Patterson is not applicable here … for the officers did not interrogate [petitioner] at his home.” 285 F. 3d, at 724. The Court of Appeals also concluded that the statements from the jail were properly admitted under the rule of Elstad, supra. 285 F. 3d, at 724 (“ ‘Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made’ ” (quoting Elstad, supra, at 309)).
Judge Riley filed a concurring opinion. He concluded that during their conversation at petitioner’s home, officers “deliberately elicited incriminating information” from petitioner. 285 F. 3d, at 726–727. That “post-indictment conduct outside the presence of counsel,” Judge Riley reasoned, violated petitioner’s Sixth Amendment rights. Id., at 727. Judge Riley nevertheless concurred in the judgment, concluding that the jailhouse statements were admissible under the rationale of Elstad in light of petitioner’s knowing and voluntary waiver of his right to counsel. 285 F. 3d, at 727.
II
The Sixth Amendment right to counsel is triggered “at or after the time that judicial proceedings have been initiated … ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” Brewer v. Williams, 430 U. S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U. S. 682, 689 (1972)). We have held that an accused is denied “the basic protections” of the Sixth Amendment “when there [is] used against him at his trial evidence of his own incriminating words, which federal agents … deliberately elicited from him after he had been indicted and in the absence of his counsel.” Massiah v. United States, 377 U. S. 201, 206 (1964); cf. Patterson v. Illinois, supra (holding that the Sixth Amendment does not bar postindictment questioning in the absence of counsel if a defendant waives the right to counsel).
We have consistently applied the deliberate-elicitation standard in subsequent Sixth Amendment cases, see United States v. Henry, 447 U. S. 264, 270 (1980) (“The question here is whether under the facts of this case a Government agent ‘deliberately elicited’ incriminating statements … within the meaning of Massiah ”); Brewer, supra, at 399 (finding a Sixth Amendment violation where a detective “deliberately and designedly set out to elicit information from [the suspect]”), and we have expressly distinguished this standard from the Fifth Amendment custodial-interrogation standard, see Michigan v. Jackson, 475 U. S. 625, 632, n. 5 (1986) (“[T]he Sixth Amendment provides a right to counsel … even when there is no interrogation and no Fifth Amendment applicability”); Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980) (“The definitions of ‘interrogation’ under the Fifth and Sixth Amendments, if indeed the term ‘interrogation’ is even apt in the Sixth Amendment context, are not necessarily interchangeable”); cf. United States v. Wade, 388 U. S. 218 (1967) (holding that the Sixth Amendment provides the right to counsel at a postindictment lineup even though the Fifth Amendment is not implicated).
The Court of Appeals erred in holding that the absence of an “interrogation” foreclosed petitioner’s claim that the jailhouse statements should have been suppressed as fruits of the statements taken from petitioner at his home. First, there is no question that the officers in this case “deliberately elicited” information from petitioner. Indeed, the officers, upon arriving at petitioner’s house, informed him that their purpose in coming was to discuss his involvement in the distribution of methamphetamine and his association with certain charged co-conspirators. 285 F. 3d, at 723; App. 112. Because the ensuing discussion took place after petitioner had been indicted, outside the presence of counsel, and in the absence of any waiver of petitioner’s Sixth Amendment rights, the Court of Appeals erred in holding that the officers’ actions did not violate the Sixth Amendment standards established in Massiah, supra, and its progeny.
Second, because of its erroneous determination that petitioner was not questioned in violation of Sixth Amendment standards, the Court of Appeals improperly conducted its “fruits” analysis under the Fifth Amendment. Specifically, it applied Elstad, supra, to hold that the admissibility of the jailhouse statements turns solely on whether the statements were “ ‘knowingly and voluntarily made.’ ” 285 F. 3d, at 724 (quoting Elstad, supra, at 309). The Court of Appeals did not reach the question whether the Sixth Amendment requires suppression of petitioner’s jailhouse statements on the ground that they were the fruits of previous questioning conducted in violation of the Sixth Amendment deliberate-elicitation standard. We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Concurrence, Criminal Procedure

Florida v. Riley

JUSTICE O’CONNOR, concurring in the judgment.

I concur in the judgment reversing the Supreme Court of Florida because I agree that police observation of the greenhouse in Riley’s curtilage from a helicopter passing at an altitude of 400 feet did not violate an expectation of privacy “that society is prepared to recognize as reasonable.'” Katz v. United States, 389 U. S. 347, 389 U. S. 361 (1967) (Harlan, J., concurring). I write separately, however, to clarify the standard I believe follows from California v. Ciraolo, 476 U. S. 207 (1986). In my view, the plurality’s approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.Const., Amdt. 4.

Ciraolo involved observation of curtilage by officers flying in an airplane at an altitude of 1,000 feet. In evaluating whether this observation constituted a search for which a warrant was required, we acknowledged the importance of curtilage in Fourth Amendment doctrine:

The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.

476 U.S. at 476 U. S. 212 -213. Although the curtilage is an area to which the private activities of the home

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, Interstate Relations, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer, William Rehnquist

Franchise Tax Bd. of Cal. v. Hyatt

JUSTICE O’CONNOR delivered the opinion of the Court. We granted certiorari to resolve whether the Nevada Supreme Court’s refusal to extend full faith and credit to California’s statute immunizing its tax collection agency from suit violates Article IV; § 1, of the Constitution. We conclude it does not, and we therefore affirm the judgment of the Nevada Supreme Court.

I

Respondent Gilbert P. Hyatt (hereinafter respondent) filed a “part-year” resident income tax return in California for 1991. App. to Pet. for Cert. 54. In the return, respondent represented that as of October 1, 1991, he had ceased to be a California resident and had become a resident of Nevada. In 1993, petitioner California Franchise Tax Board (CFTB) commenced an audit to determine whether respondent had underpaid state income taxes. Ibid. The audit focused on

*Eriefs of amici curiae urging reversal were filed for the State of Florida et al. by Richard E. Dornan, Attorney General of Florida, Jonathan A. Glogau, Barbara J. Ritchie, Acting Attorney General of Alaska, and Thomas R. Keller, Acting Attorney General of Hawaii, and by the Attorneys General for their respective jurisdictions as follows: Ken Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, James E. Ryan of Illinois, Steve Carter of Indiana, G. Steven Rowe of Maine, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Mike McGrath of Montana, Wayne Stenehjem of North Dakota,

Clarence Thomas, Dissent, Economic Activity

FTC v. Ticor Title Ins. Co

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

Notwithstanding its assertions to the contrary, the Court has diminished the States’ regulatory flexibility by creating an impossible situation for those subject to state regulation. Even when a State has a “clearly articulated policy” authorizing anticompetitive behavior-which the Federal Trade Commission concedes was the case here-and even when the State establishes a system to supervise the implementation of that policy, the majority holds that a federal court may later find that the State’s supervision was not sufficiently “substantial” in its “specifics” to insulate the anticompetitive behavior from antitrust liability. Ante, at 635. Given the threat of treble damages, regulated entities that have the option of heeding the State’s anticompetitive policy would be foolhardy to do so; those that are compelled to comply are less fortunate. The practical effect of today’s decision will likely be to eliminate so-called “negative option” regulation from the universe of schemes available to a State that seeks to regulate without exposing certain conduct to federal antitrust liability.

The Court does not dispute that each of the States at issue in this case could have supervised respondents’ joint ratemaking; rather, it argues that “the potential for state super VISIOn was not realized in fact.” Ante, at 638. Such an after-the-fact evaluation of a State’s exercise of its supervisory powers is extremely unfair to regulated

Anthony Kennedy, Antonin Scalia, First Amendment, Harry Blackmun, Majority, William Rehnquist

Frisby v. Schultz

JUSTICE O’CONNOR delivered the opinion of the Court.

Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing “before or about” any residence. This case presents a facial First Amendment challenge to that ordinance.

I

Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion, and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring towns. Appellees and others engaged in precisely that activity, assembling outside the doctor’s home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints.

The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court’s decision in Carey v. Brown, 447 U. S. 455 (1980),