Supreme Court Opinions

Criminal Procedure, Dissent

Grady v. Corbin

Criminal Procedure, Dissent / By

Justice O’CONNOR, dissenting.

I agree with much of what Justice SCALIA says in his dissenting opinion. I write separately, however, to note that my dissent is premised primarily on my view that the inconsistency between the Court’s opinion today and Dowling v. United States, 493 U. S. 342 (1990), decided earlier this Term, indicates that the Court has strayed from a proper interpretation of the scope of the Double Jeopardy Clause.

In Dowling, we considered whether an eyewitness’ testimony regarding a robbery for which Dowling had been acquitted was admissible at a second trial of Dowling for an unrelated robbery. The eyewitness had testified at the first trial that a man had entered her house “wearing a knitted mask with cutout eyes and carrying a small handgun” and that his mask had come off during a struggle, revealing his identity. Id. at 493 U. S. 344. Based on this evidence, Dowling had been charged with burglary, attempted robbery, assault, and weapons offenses, but was acquitted of all charges. At a second trial for an unrelated bank robbery, the government attempted to use the witness’ testimony to prove Dowling’s identity as a robber. We held that the Double Jeopardy Clause did not bar the introduction of the evidence: because the prior acquittal did not necessarily represent a jury determination that Dowling was not the masked man who had entered the witness’ home, the testimony was admissible in the second trial to prove identity. Id. at 493 U. S. 348 -352.

The

Dissent, Due Process, Warren Burger, William Rehnquist

Greene v. Lindsey

Dissent, Due Process, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

Today, the Court holds that the Constitution prefers the use of the Postal Service to posted notice. The Court reaches this conclusion despite the total absence of any evidence in the record regarding the speed and reliability of the mails. The sole ground for the Court’s result is the scant and conflicting testimony of a handful of process servers in Kentucky. On this flimsy basis, the Court confidently overturns the work of the Kentucky Legislature and, by implication, that of at least 10 other States. I must respectfully dissent.

At a minimum, the Fourteenth Amendment requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 339 U. S. 314 (1950). The question before the Court is whether the notice provided by Kentucky’s statute meets this standard. In answering that question, the first “circumstances” to be considered are the nature and purpose of the action for which notice is required.

Kentucky’s forcible entry and detainer action is a summary proceeding for quickly determining whether or not a landlord has the right to immediate possession of leased premises and, if so, for enabling the landlord speedily to obtain the property from the person in wrongful possession. Ky.Rev.Stat. §§ 383.200, 383.210 (1972). As this Court has recognized, such circumstances

Concurrence, First Amendment

Globe Newspaper Co. v. Superior Ct

Concurrence, First Amendment / By

JUSTICE O’CONNOR, concurring in the judgment.

In Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555 (1980), the Court held that the First Amendment protects the right of press and public to attend criminal trials. I do not interpret that decision to shelter every right that is “necessary to the enjoyment of other First Amendment rights.” Ante at 457 U. S. 604. Instead, Richmond Newspapers rests upon our long history of open criminal trials and the special value, for both public and accused, of that openness. As the plurality opinion in Richmond Newspapers stresses,

it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.

448 U.S. at 448 U. S. 575. Thus, I interpret neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.

This case, however, does involve a criminal trial. Moreover, it involves a statute mandating automatic exclusion of the public from certain testimony. As the Court explains, Massachusetts has demonstrated no interest weighty enough to justify application of its automatic bar to all cases, even those in which the victim, defendant, and prosecutor have no objection to an open trial. Accordingly, I concur in the judgment.

Concurrence, Economic Activity

Goldberg v. Sweet

Concurrence, Economic Activity / By

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

I agree that the Illinois Telecommunications Excise Tax Act does not violate the Commerce Clause, and join Parts I, II-A, II-D, and III of the Court’s opinion. I write separately to explain why I do not join Parts II-B and II-C. First, I am still unsure of the need and authority for applying the internal consistency test to state taxes challenged under the Commerce Clause. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 483 U. S. 303 (1987) (O’CONNOR, J., dissenting). I therefore do not join in the Court’s application of that test to the Tax Act. Ante at 488 U. S. 261. Second, I agree with JUSTICE STEVENS that a State may not discriminate among its own residents by placing a heavier tax on those who engage in interstate commerce than those who merely engage in local commerce. Ante at 488 U. S. 268 (STEVENS, J., concurring in part and concurring in judgment). Accordingly, I cannot join the Court’s statement that “[i]t is not a purpose of the Commerce Clause to protect state residents from their own state taxes.” Ante at 488 U. S. 266.

Concurrence, Judicial Power

Gutierrez de Martinez v. Lamagno

Concurrence, Judicial Power / By

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

For the reasons given in Parts I-III of the Court’s opinion, which I join, I agree with the Court (and the Attorney General) that the Attorney General’s scope-of-employment certifications in Westfall Act cases should be judicially reviewable. I do not join Part IV of the opinion, however. That discussion all but conclusively resolves a difficult question of federal jurisdiction that, as JUSTICE GINSBURG notes, is not presented in this case. Ante, at 435. In my view, we should not resolve that question until it is necessary for us to do so.

Of course, I agree with the dissent, post, at 441, that we ordinarily should construe statutes to avoid serious constitutional questions, such as that discussed in Part IV of the Court’s opinion, when it is fairly possible to do so. See United States v. X-Citement Video, Inc., 513 U. S. 64, 78 (1994); Rust v. Sullivan, 500 U. S. 173, 223-225 (1991) (O’CONNOR, J., dissenting). And I recognize that reversing the Court of Appeals’ judgment in this case may make it impossible to avoid deciding that question in a future case. But even such an important canon of statutory construction as that favoring the avoidance of serious constitutional questions does not always carry the day. In this case, as described in detail by the Court, ante, at 423-434, several other important legal principles, including the presumption in favor of judicial review of executive action, ante, at 424,

Civil Rights, Concurrence, Stephen Breyer

Gratz v. Bollinger

Civil Rights, Concurrence, Stephen Breyer / By

JUSTICE O’CONNOR, concurring.*

I

Unlike the law school admissions policy the Court upholds today in Grutter v. Bollinger, post, p. 306, the procedures employed by the University of Michigan’s (University) Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants. Cf. Regents of Univ. of Gal. v. Bakke, 438 U.S. 265 (1978) (principal opinion of Powell, J.). The law school considers the various diversity qualifications of each applicant, including race, on a case-bycase basis. See Grutter v. Bollinger, post, at 337-339. By contrast, the Office of Undergraduate Admissions relies on the selection index to assign every underrepresented minority applicant the same, automatic 20-point bonus without consideration of the particular background, experiences, or qualities of each individual applicant. Cf. ante, at 271-272, 273. And this mechanized selection index score, by and large, automatically determines the admissions decision for each applicant. The selection index thus precludes admissions counselors from conducting the type of individualized consideration the Court’s opinion in Grutter, post, at 334, requires: consideration of each applicant’s individualized qualifications, including the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups. Cf. ante, at 272-273 (citing Bakke, supra, at 324).

On cross-motions for

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, John Paul Stevens, Majority, Ruth Bader Ginsburg, William Rehnquist

Hagen v. Utah

Anthony Kennedy, Antonin Scalia, Civil Rights, Clarence Thomas, John Paul Stevens, Majority, Ruth Bader Ginsburg, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case we decide whether the Uintah Indian Reservation was diminished by Congress when it was opened to nonIndian settlers at the turn of the century. If the reservation has been diminished, then the town of Myton, Utah, which lies on opened lands within the historical boundaries of the reservation, is not in “Indian country,” see 18 U. S. C. § 1151, and the Utah state courts properly exercised criminal jurisdiction over petitioner, an Indian who committed a crime in Myton.

I

On October 3, 1861, President Lincoln reserved about 2 million acres of land in the Territory of Utah for Indian settlement. Executive Order No. 38-1, reprinted in 1 C. Kappler, Indian Affairs: Laws and Treaties 900 (1904). Congress confirmed the President’s action in 1864, creating the Uintah Valley Reservation. Act of May 5, 1864, ch. 77, 13 Stat. 63. According to the 1864 Act, the lands were “set apart for the permanent settlement and exclusive occupation of such of the different tribes of Indians of said territory as may be induced to inhabit the same.” Ibid. The presentday Ute Indian Tribe includes the descendants of the Indians who settled on the Uintah Reservation.

In the latter part of the 19th century, federal Indian policy changed. See F. Cohen, Handbook of Federal Indian Law 127-139 (1982 ed.). Indians were no longer to inhabit communally owned reservations, but instead were to be given individual parcels of land; any remaining lands

Antonin Scalia, Concurrence, Criminal Procedure, William Rehnquist

Harris v. Reed

Antonin Scalia, Concurrence, Criminal Procedure, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, concurring.

I join the Court’s opinion, and am in general agreement with its decision to apply the “plain statement” rule of Michigan v. Long, 463 U. S. 1032 (1983), to the state courts’ invocation of state procedural default rules. I write separately to emphasize two points. First, I do not read the Court’s opinion as addressing or altering the well-settled rule that the lower federal courts, and this Court, may properly inquire into the availability of state remedies in determining whether claims presented in a petition for federal habeas corpus have been properly exhausted in the state courts. See Humphrey v. Cady, 405 U. S. 504, 405 U. S. 515 -517 (1972); Ex parte Hawk, 321 U. S. 114, 321 U. S. 118 (1944).

In 28 U.S.C. § 2254(b), Congress has provided that a writ of habeas corpus

shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

The exhaustion requirement is not satisfied if the habeas petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). Thus, in determining whether a remedy for a particular constitutional claim is “available,” the federal courts are authorized, indeed required,

Dissent, Federalism, William Rehnquist

Harper v. Virginia Dept. of Taxation

Dissent, Federalism, William Rehnquist / By

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

Today the Court applies a new rule of retroactivity to impose crushing and unnecessary liability on the States, precisely at a time when they can least afford it. Were the Court’s decision the product of statutory or constitutional command, I would have no choice but to join it. But nothing in the Constitution or statute requires us to adopt the retroactivity rule the majority now applies. In fact, longstanding precedent requires the opposite result. Because I see no reason to abandon our traditional retroactivity analysis as articulated in Chevron Oil Co. v. Huson, 404 U. S. 97, 106107 (1971), and because I believe the Supreme Court of Virginia correctly applied Chevron Oil in this case, I would affirm the judgment below.

I

This Court’s retroactivity jurisprudence has become somewhat chaotic in recent years. Three Terms ago, the case of American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990), produced three opinions, none of which garnered a majority. One Term later, James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 (1991), yielded five opinions; there, no single writing carried more than three votes. As a result, the Court today finds itself confronted with such disarray that, rather than relying on precedent, it must resort to vote counting: Examining the various opinions in Jim Beam, it discerns six votes for a single proposition that, in its view, controls this case. Ante, at 96-97.

If we had

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

Harris v. Alabama

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

JUSTICE O’CONNOR delivered the opinion of the Court. Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner’s argument that Alabama’s capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury’s recommendation and thus permits arbitrary imposition of the death penalty.