Supreme Court Opinions

Dissent, Economic Activity, William Rehnquist

324 Liquor Corp. v. Duffy

Dissent, Economic Activity, William Rehnquist / By

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

Immediately after the ratification of the Twenty-first Amendment, this Court recognized that the broad language of § 2 of the Amendment conferred plenary power on the States to regulate the liquor trade within their boundaries. Ziffrin, Inc. v. Reeves, 308 U. S. 132 (1939); Finch & Co. v. McKittrick, 305 U. S. 395 (1939); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U. S. 391 (1939); State Board of Equalization v. Young’s Market Co., 299 U. S. 59 (1936). As JUSTICE STEVENS recently observed, however, the Court has, over the years, so “completely distorted the Twenty-first Amendment” that “[i]t now has a barely discernible effect in Commerce Clause cases.” Newport v. Iacobucci, ante, at 479 U. S. 98 (dissenting). Because I believe that the Twenty-first Amendment clearly authorized the State of New York to regulate the liquor trade within its borders free of federal interference, I dissent from Part III of the Court’s opinion, and would affirm the judgment of the New York Court of Appeals.

I

In Hostetter v. Idlewild Liquor Corp., 377 U. S. 324 (1964), this Court took a first step toward eviscerating the authority of States to regulate the commerce of liquor. The Court held that the State of New York could not regulate the importation of liquor into that State when the liquor was sold in duty-free shops at the Kennedy Airport. The basis for this decision was the fact that the United States Customs Service

Byron White, Civil Rights, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger

Affiliated Tribes v. Wold Engineering

Byron White, Civil Rights, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger / By

JUSTICE O’CONNOR delivered the opinion of the Court.

Petitioner, Three Affiliated Tribes of the Fort Berthold Reservation, sought to sue respondent, Wold Engineering, P.C. (hereafter respondent), in state court for negligence and breach of contract. The North Dakota Supreme Court held that Chapter 27-19 of the North Dakota Century Code (1974) disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court. It ruled that, under Chapter 27-19, petitioner could not avail itself of state court jurisdiction unless it consented to waive its sovereign immunity and to have any civil disputes in state court to which it is a party adjudicated under state law. 364 N.W.2d 98 (1985). The question presented is whether Chapter 27-19, as construed by the North Dakota Supreme Court, is repugnant to the Federal Constitution or is preempted by federal Indian law.

I

This is the second time this Court has been called upon to address this jurisdictional controversy. See Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 (1984) ( Three Tribes I ). Because the facts and procedural history of the litigation were set forth in some detail in Three Tribes I, our present recitation will be brief.

Historically, Indian territories were generally deemed beyond the legislative and judicial jurisdiction of the state governments. See id. at 467 U. S. 142. This restriction was reflected in the federal statute which admitted

Anthony Kennedy, Byron White, Economic Activity, Majority, William Rehnquist

American Trucking Ass’ns v. Smith

Anthony Kennedy, Byron White, Economic Activity, Majority, William Rehnquist / By

Justice O’CONNOR announced the judgment of the Court, and delivered an opinion in which THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY join.

In this case, we decide whether our decision in American Trucking Assns, Inc. v. Scheiner, 483 U. S. 266 (1987), applies retroactively to taxation of highway use prior to the date of that decision.

I

In 1983, petitioners brought suit in the Chancery Court of Pulaski County, Arkansas, challenging the constitutionality of the newly enacted Arkansas Highway Use Equalization Tax Act (HUE), 1983 Ark.Gen. Acts, No. 685, Ark.Code Ann. §§ 27-35204, 27-35-205 (1987) (formerly codified as Ark.Stat.Ann. §§ 75-817.2, 75-817.3 (Supp. 1985)), under the Commerce Clause of the Federal Constitution. Art. I, § 8, cl. 3. The HUE tax required trucks operating on Arkansas highways with a gross weight between 73,281 and 80,000 pounds to pay either an annual flat tax of $175 or a tax of 5c per mile traveled in Arkansas or a trip permit fee of $8 per 100 miles. Effectively, HUE taxed only the first 3,500 miles of annual highway use by heavy trucks, that being the point at which it became advantageous to pay the flat tax of $175. Because trucks based in Arkansas were likely to travel many more miles on the State’s highways than heavy trucks based out of the State, petitioners argued that HUE impermissibly discriminated against interstate commerce by imposing on out-of-state truckers greater per-mile costs than those imposed on in-state truckers. To remedy

Criminal Procedure, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan

Arizona v. Rumsey

Criminal Procedure, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The question presented is whether the Double Jeopardy Clause prohibits the State of Arizona from sentencing respondent to death after the life sentence he had initially received was set aside on appeal. We agree with the Supreme Court of Arizona that Bullington v. Missouri, 451 U. S. 430 (1981), squarely controls the disposition of this case. Under the interpretation of the Double Jeopardy Clause adopted in that decision, imposition of the death penalty on respondent would be unconstitutional.

I

An Arizona jury convicted respondent of armed robbery and first degree murder. The trial judge, with no jury, then conducted a separate sentencing hearing to determine, according to the statutory scheme for considering aggravating and mitigating circumstances, Ariz.Rev.Stat.Ann. § 13-703 (Supp.1983-1984), whether death was the appropriate sentence for the murder conviction. Petitioner, relying entirely on the evidence presented at trial, argued that three statutory aggravating circumstances were present. Respondent, presenting only one witness, countered that no aggravating circumstances were present, but that several mitigating circumstances were. One of the principal points of contention concerned the scope of Ariz.Rev.Stat.Ann. § 13-703(F)(5) (Supp.1983-1984), which defines as an aggravating circumstance the murder’s commission “as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.”

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Criminal Procedure, David Souter, Majority, William Rehnquist

Arave v. Creech

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, Criminal Procedure, David Souter, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1981 Thomas Eugene Creech beat and kicked to death a fellow inmate at the Idaho State Penitentiary. He pleaded guilty to first-degree murder and was sentenced to death. The sentence was based in part on the statutory aggravating circumstance that “[b]y the murder, or circumstances surrounding its commission, the defendant exhibited utter disregard for human life.” Idaho Code § 19-2515(g)(6) (1987). The sole question we must decide is whether the “utter disregard” circumstance, as interpreted by the Idaho Supreme Court, adequately channels sentencing discretion as required by the Eighth and Fourteenth Amendments.

I

The facts underlying this case could not be more chilling.

Thomas Creech has admitted to killing or participating in the killing of at least 26 people. The bodies of 11 of his victims-who were shot, stabbed, beaten, or strangled to death-have been recovered in seven States. Creech has said repeatedly that, unless he is completely isolated from humanity, he likely will continue killing. And he has identified by name three people outside prison walls he intends to kill if given the opportunity.

Creech’s most recent victim was David Dale Jensen, a fellow inmate in the maximum security unit of the Idaho State Penitentiary. When he killed Jensen, Creech was already serving life sentences for other first-degree murders. Jensen, about seven years Creech’s junior, was a nonviolent car thief. He was also physically

Concurrence, David Souter, First Amendment, Stephen Breyer, William Rehnquist

44 Liquormart Inc. v. Rhode Island

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

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

Rhode Island prohibits advertisement of the retail price of alcoholic beverages, except at the place of sale. The State’s only asserted justification for this ban is that it promotes temperance by increasing the cost of alcoholic beverages. Brief for Respondent State of Rhode Island 22. I agree with the Court that Rhode Island’s price-advertising ban is invalid. I would resolve this case more narrowly, however, by applying our established Central Hudson test to determine whether this commercial speech regulation survives First Amendment scrutiny.

Under that test, we first determine whether the speech at issue concerns lawful activity and is not misleading, and whether the asserted governmental interest is substantial. If both these conditions are met, we must decide whether the regulation “directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Central Hudson Gas & Elec. Corp. v. Public Servo Comm’n of N. Y., 447 U. S. 557, 566 (1980).

Given the means by which this regulation purportedly serves the State’s interest, our conclusion is plain: Rhode Island’s regulation fails First Amendment scrutiny.

Both parties agree that the first two prongs of the Central Hudson test are met. Even if we assume, arguendo, that Rhode Island’s regulation also satisfies the requirement that it directly

Concurrence, First Amendment, John Paul Stevens

Arcara v. Cloud Books Inc

Concurrence, First Amendment, John Paul Stevens / By

JUSTICE O’CONNOR, with whom JUSTICE STEVENS joins, concurring.

I agree that the Court of Appeals erred in applying a First Amendment standard of review where, as here, the government is regulating neither speech nor an incidental, nonexpressive effect of speech. Any other conclusion would lead to the absurd result that any government action that had some conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment. If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review. Because there is no suggestion in the record or opinion below of such pretextual use of the New York nuisance provision in this case, I concur in the Court’s opinion and judgment.

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

Bailey v. United States

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

JUSTICE O’CONNOR delivered the opinion of the Court. These consolidated petitions each challenge a conviction under 18 U. S. C. § 924(c)(1). In relevant part, that section imposes a 5-year minimum term of imprisonment upon a person who “during and in relation to any crime of violence or drug trafficking crime… uses or carries a firearm.” We are asked to decide whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alone sufficient to support a conviction for “use” of a firearm during and in relation to a drug trafficking offense under 18 U. S. C. § 924(c)(1).

I

In May 1989, petitioner Roland Bailey was stopped by police officers after they noticed that his car lacked a front license plate and an inspection sticker. When Bailey failed to produce a driver’s license, the officers ordered him out of the car. As he stepped out, the officers saw Bailey push something between the seat and the front console. A search of the passenger compartment revealed one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine. After arresting Bailey, the officers searched the trunk of his car where they found, among a number of items, a large amount of cash and a bag containing a loaded 9-mm. pistol.

Bailey was charged on several counts, including using and carrying a firearm in violation of 18 U. s. C. § 924(c)(1). A prosecution expert testified at trial that drug dealers frequently carry a firearm to protect their drugs and money

Concurrence, First Amendment

Ashcroft v. American Civil Liberties Union

Concurrence, First Amendment / By

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

I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 577579. Like JUSTICE BREYER, however, see post, at 589 (opinion concurring in part and concurring in judgment), I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet.

The plurality’s opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. See ante, at 577-579. I agree, given respondents’ failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents’ examples of material for which com munity standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Brief for Respondents 43. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient

Civil Rights, Dissent, John Paul Stevens, William Rehnquist

Atty. Gen. of N.Y. v. Soto-Lopez

Civil Rights, Dissent, John Paul Stevens, William Rehnquist / By

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

The Court today holds unconstitutional the preference in public employment opportunities New York offers to resident wartime veterans who resided in New York when they entered military service. Because I believe that New York’s veterans’ preference scheme is not constitutionally offensive under the Equal Protection Clause, does not penalize some free-floating “right to migrate,” and does not violate the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution, I dissent.

I

The plurality’s constitutional analysis runs generally as follows: because the classification imposed by New York’s limited, one-time veterans’ civil service preference “penalizes” appellees’ constitutional “right to migrate,” the preference program must be subjected to heightened scrutiny, which it does not survive because it is insufficiently narrowly tailored to serve its asserted purposes. On the strength of this reasoning, the plurality concludes that the preference program violates both appellees’ constitutional “right to migrate” and their right to equal protection of the law, see ante at 476 U. S. 911, although it does not make clear how much of its analysis is necessary or sufficient to find a violation of the “right to migrate” independently of an Equal Protection Clause violation.

In pursuing this new dual analysis, the plurality simply rejects the equal protection approach the Court has previously