Supreme Court Opinions

Anthony Kennedy, Economic Activity, Partial concurrence, partial dissent, William Rehnquist

Pharmaceutical Research and Mfrs. of America v. Walsh

Anthony Kennedy, Economic Activity, Partial concurrence, partial dissent, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, concurring in part and dissenting in part.

I join Parts I-III and VI of the Court’s opinion, and I agree with the plurality’s conclusion that States may not impose on Medicaid beneficiaries the burdens of prior authorization in the absence of a countervailing Medicaid purpose, ante, at 662. I part with the plurality because I do not agree that the District Court abused its discretion in enjoining respondents from imposing prior authorization under the Maine Rx Program. Before the District Court, respondents “point[ed] to no Medicaid purpose” served by Maine Rx’s prior-authorization requirement. App. to Pet. for Cert. 68 (emphasis in original). This is not surprising. The program is open to all Maine residents, rich and poor. It does not purport to further a Medicaid-related purpose, and it is not tailored to have such an effect. By imposing prior authorization on Maine’s Medicaid population to achieve wholly non-Medicaid related goals, Maine Rx “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of the federal Medicaid Act. Hines v. Davido witz, 312 U. S. 52, 67 (1941). I would uphold the District Court’s injunction on this basis, and I therefore respectfully dissent from Parts IV, V, and VII of the plurality’s opinion.

I

Our ultimate task in analyzing a pre-emption claim is “to determine whether state regulation is consistent with the structure and purpose”

Dissent, Federalism

Perry v. Thomas

Dissent, Federalism / By

JUSTICE O’CONNOR, dissenting.

The Court today holds that § 2 of the Federal Arbitration Act (Act), 9 U.S.C. § 1 et seq., requires the arbitration of appellee’s claim for wages despite clear state policy to the contrary. This Court held in Southland Corp. v. Keating, 465 U. S. 1 (1984), that the Act applies to state court as well as federal court proceedings. Because I continue to believe that this holding was

unfaithful to congressional intent, unnecessary, and, in light of the [Act’s] antecedents and the intervening contraction of federal power, inexplicable,

id. at 465 U. S. 36 (O’CONNOR, J., dissenting), I respectfully dissent.

Even if I were not to adhere to my position that the Act is inapplicable to state court proceedings, however, I would still dissent. We have held that Congress can limit or preclude a waiver of a judicial forum, and that Congress’ intent to do so will be deduced from a statute’s text or legislative history, or “from an inherent conflict between arbitration and the statute’s underlying purposes.” Shearson/American Express Inc. v. McMahon, ante at 482 U. S. 227. As JUSTICE STEVENS has observed, the Court has not explained why state legislatures should not also be able to limit or preclude waiver of a judicial forum:

We should not refuse to exercise independent judgment concerning the conditions under which an arbitration agreement, generally enforceable under the Act, can be held invalid as contrary to public policy simply because the source of

Civil Rights, Concurrence

Penson v. Ohio

Civil Rights, Concurrence / By

JUSTICE O’CONNOR, concurring.

I join the Court’s opinion. I write separately to emphasize that nothing in the Court’s opinion forecloses the possibility that a mere technical violation of Anders v. California, 386 U. S. 738 (1967), might be excusable. The violation in this case was not a mere technical violation, however, and, on that understanding, I concur.

Anthony Kennedy, Criminal Procedure, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer

Penry v. Johnson

Anthony Kennedy, Criminal Procedure, David Souter, John Paul Stevens, Majority, Ruth Bader Ginsburg, Stephen Breyer / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In 1989, we held that Johnny Paul Penry had been sentenced to death in violation of the Eighth Amendment because his jury had not been adequately instructed with respect to mitigating evidence. See Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I). The State of Texas retried Penry in 1990, and that jury also found him guilty of capital murder and sentenced him to death. We now consider whether the jury instructions at Penry’s resentencing complied with our mandate in Penry 1. We also consider whether the admission into evidence of statements from a psychiatric report based on an uncounseled interview with Penry ran afoul of the Fifth Amendment.

I

Johnny Paul Penry brutally raped and murdered Pamela Carpenter on October 25, 1979. In 1980, a Texas jury found him guilty of capital murder. At the close of the penalty hearing, the jury was instructed to answer three statutorily mandated “special issues”:”‘(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;”‘(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and”‘(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.'” Id., at 310

Attorneys, Concurrence

Pennsylvania v. Valley Citizens’ Council

Attorneys, Concurrence / By

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

For the reasons explained by the dissent I conclude that Congress did not intend to foreclose consideration of contingency in setting a reasonable fee under fee-shifting provisions such as that of the Clean Air Act, 42 U.S.C. § 7604(d), and the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. I also agree that compensation for contingency must be based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the “riskiness” of any particular case. But, in my view, the plurality is also correct in holding that the “novelty and difficulty of the issues presented, and… the potential for protracted litigation,” ante at 483 U. S. 726, are factors adequately reflected in the lodestar, and that the District Court erred in employing a risk multiplier in the circumstances of this case.

The private market commonly compensates for contingency through arrangements in which the attorney receives a percentage of the damages awarded to the plaintiff. In most fee-shifting cases, however, the private market model of contingency compensation will provide very little guidance. See Riverside v. Rivera, 477 U. S. 561, 477 U. S. 573 -576 (1986). Thus, it is unsurprising that, when courts have enhanced fee awards to compensate for risk,

[p]inpointing the degree of risk [has been] one of the most subjective and difficult components of the fee computation process, and one

Dissent, Federalism

Pennsylvania v. Union Gas Co

Dissent, Federalism / By

JUSTICE O’CONNOR, dissenting.

I agree with JUSTICE SCALIA that a faithful interpretation of the Eleventh Amendment embodies a concept of state sovereignty which limits the power of Congress to abrogate States’ immunity when acting pursuant to the Commerce Clause. But that view does not command a majority of the Court, thus necessitating an inquiry as to whether Congress intended in CERCLA, 42 U.S.C. § 9601 et seq., and SARA, Pub.L. 99-499, 100 Stat. 1613, to abrogate the States’ Eleventh Amendment immunity. On that question, I join Part I of JUSTICE WHITE’s opinion. I also join Parts II, III, and IV of JUSTICE SCALIA’s opinion concurring in part and dissenting in part.

Civil Rights, Concurrence

Pembaur v. City of Cincinnati

Civil Rights, Concurrence / By

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

For the reasons stated by JUSTICE WHITE, I agree that the municipal officers here were acting as policymakers within the meaning of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the city of Cincinnati freely conceded, forcible entry of third-party property to effect an arrest was standard operating procedure in May, 1977. Given that this procedure was consistent with federal, state, and local law at the time the case arose, it seems fair to infer that respondent county’s policy was no different. Moreover, under state law as definitively construed by the Court of Appeals, the county officials who opted for the forcible entry “had the authority to approve or disapprove such entries.” Ante at 475 U. S. 485 (WHITE J., concurring). Given this combination of circumstances, I agree with JUSTICE WHITE that the decision to break down the door “sufficiently manifested county policy to warrant reversal of the judgment below.” Ibid. Because, however, I believe that the reasoning of the majority goes beyond that necessary to decide the case, and because I fear that the standard the majority articulates may be misread to expose municipalities to liability beyond that envisioned by the Court in Monell, I join only Parts 475 U. S. S. 477|>II-A of the Court’s opinion and the judgment.

Concurrence, Economic Activity

Ohio v. Kovacs

Concurrence, Economic Activity / By

JUSTICE O’CONNOR, concurring.

I join the Court’s opinion and agree with its holding that the cleanup order has been reduced to a monetary obligation dischargeable as a “claim” under § 727 of the Bankruptcy Code. I write separately to address the petitioner’s concern that the Court’s action will impede States in enforcing their environmental laws.

To say that Kovacs’ obligation in these circumstances is a claim dischargeable in bankruptcy does not wholly excuse the obligation or leave the State without any recourse against Kovacs’ assets to enforce the order. Because “Congress has generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” Butner v. United States, 440 U. S. 48, 440 U. S. 54 (1979), the classification of Ohio’s interest as either a lien on the property itself, a perfected security interest, or merely an unsecured claim depends on Ohio law. That classification -a question not before us -generally determines the priority of the State’s claim to the assets of the estate relative to other creditors. Cf. 11 U.S.C. § 545 (trustee may avoid statutory liens only in specified circumstances). Thus, a State may protect its interest in the enforcement of its environmental laws by giving cleanup judgments the status of statutory liens or secured claims.

The Court’s holding that the cleanup order was a “claim” within the meaning of § 101(4) also avoids potentially adverse consequences for a State’s enforcement of its order when

Concurrence, David Souter, Due Process, Ruth Bader Ginsburg, Stephen Breyer

Ohio Adult Parole Authority v. Woodard

Concurrence, David Souter, Due Process, Ruth Bader Ginsburg, Stephen Breyer / By

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

A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures. It is clear that “once society has validly convicted an individual of a crime and therefore established its right to punish, the demands of due process are reduced accordingly.” Ford v. Wainwright, 477 U. S. 399, 429 (1986) (O’CONNOR, J., concurring in result in part and dissenting in part). I do not, however, agree with the suggestion in the principal opinion that, because clemency is committed to the discretion of the executive, the Due Process Clause provides no constitutional safeguards. THE CHIEF JUSTICE’S reasoning rests on our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U. S. 458 (1981), and Greenholtz v. Inmates of Neb. Penal and Correctional Com plex, 442 U. S. 1 (1979). In those cases, the Court found that an inmate seeking commutation of a life sentence or discre tionary parole had no protected liberty interest in release from lawful confinement. When a person has been fairly convicted and sentenced, his liberty interest, in being free from such confinement, has been extinguished. But it is incorrect, as JUSTICE STEVENS’ dissent notes, to say that a prisoner

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent, William Rehnquist

Old Chief v. United States

Antonin Scalia, Clarence Thomas, Criminal Procedure, Dissent, William Rehnquist / By

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

The Court today announces a rule that misapplies Federal Rule of Evidence 403 and upsets, without explanation, longstanding precedent regarding criminal prosecutions. I do not agree that the Government’s introduction of evidence that reveals the name and basic nature of a defendant’s prior felony conviction in a prosecution brought under 18 U. S. C. § 922(g)(1) “unfairly” prejudices the defendant within the meaning of Rule 403. Nor do I agree with the Court’s newly minted rule that a defendant charged with violating

course, require some jury instruction to explain it (just as it will require some discretion when the indictment is read). A redacted judgment in this case, for example, would presumably have revealed to the jury that Old Chief was previously convicted in federal court and sentenced to more than a year’s imprisonment, but it would not have shown whether his previous conviction was for one of the business offenses that do not count, under § 921(a)(20). Hence, an instruction, with the defendant’s consent, would be necessary to make clear that the redacted judgment was enough to satisfy the status element remaining in the case. The Government might, indeed, propose such a redacted judgment for the trial court to weigh against a defendant’s offer to admit, as indeed the Government might do even if the defendant’s admission had been received into evidence. § 922(g)(1)