Supreme Court Opinions

Concurrence, Criminal Procedure

Stanford v. Kentucky

Concurrence, Criminal Procedure / By

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

Last Term, in Thompson v. Oklahoma, 487 U. S. 815, 487 U. S. 857 -858 (1988) (opinion concurring in judgment), I expressed the view that a criminal defendant who would have been tried as a juvenile under state law, but for the granting of a petition waiving juvenile court jurisdiction, may only be executed for a capital offense if the State’s capital punishment statute specifies a minimum age at which the commission of a capital crime can lead to an offender’s execution and the defendant had reached that minimum age at the time the crime was committed. As a threshold matter, I indicated that such specificity is not necessary to avoid constitutional problems if it is clear that no national consensus forbids the imposition of capital punishment for crimes committed at such an age. Id. at 487 U. S. 857. Applying this two-part standard in Thompson, I concluded that Oklahoma’s imposition of a death sentence on an individual who was 15 years old at the time he committed a capital offense should be set aside. Applying the same standard today, I conclude that the death sentences for capital murder imposed by Missouri and Kentucky on petitioners Wilkins and Stanford respectively should not be set aside, because it is sufficiently clear that no national consensus forbids the imposition of capital punishment on 16or 17-year-old capital murderers.

In Thompson, I noted that

[t]he most salient statistic that bears on this

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

State Oil Co. v. Khan

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

JUSTICE O’CONNOR delivered the opinion of the Court. Under § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, “[e]very contract, combination…, or conspiracy, in restraint of trade” is illegal. InAlbrechtv.HeraldCo.,390 U. S. 145(1968), this Court held that vertical maximum price fixing is aper seviolation of that statute. In this case, we are asked to reconsider that decision in light of subsequent decisions of this Court. We conclude thatAlbrechtshould be overruled.

I

Respondents, Barkat U. Khan and his corporation, entered into an agreement with petitioner, State Oil Company, to lease and operate a gas station and convenience store owned

*Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Stephen M. Shapiro, Roy T. Englert, Jr., Donald M. Falk, Phillip D. Brady, and Charles H. Lockwood II; for the American Petroleum Institute by Edwin M. Zimmerman, Robert A. Long, Jr., G. William Frick, Harry M. Ng, and Douglas W Morris; for the Business Roundtable by Thomas B. Leary and Robert C. Weinbaum; and for the Newspaper Association of America et al. by William T. Lifiand, Patricia Farren, David S. J. Brown, Rene P. Milam, Peter C. Gould, Andrew Merdek, William T. Garcia, Cristina L. Mendoza, and George Freeman.

Briefs of amici curiae were filed for the Association of the Bar of the City of New York by Richard M. Steuer; for the Coalition for Fair Consumer Pricing by Steven B. Feirman, Barry M. Heller,

Anthony Kennedy, Concurrence, Judicial Power

Steel Co. v. Citizens for Better Environment

Anthony Kennedy, Concurrence, Judicial Power / By

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

I join the Court’s opinion. I agree that our precedent supports the Court’s holding that respondent lacks Article III standing because its injuries cannot be redressed by a judgment that would, in effect, require only the payment of penalties to the United States Treasury. As the Court notes, ante, at 108, had respondent alleged a continuing or imminent violation of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), 42 U. S. C. § 11046, the requested injunctive relief may well have redressed the asserted injury.

I also agree with the Court’s statement that federal courts should be certain of their jurisdiction before reaching the merits of a case. As the Court acknowledges, however, several of our decisions “have diluted the absolute purity of the rule that Article III jurisdiction is always an antecedent question.” Ante, at 101. The opinion of the Court adequately describes why the assumption of jurisdiction was defensible in those cases, see ante, at 98-100, and why it is not in this case, see ante, at 92-93. I write separately to note that, in my view, the Court’s opinion should not be read as cataloging an exhaustive list of circumstances under which federal courts may exercise judgment in “reserv[ing] difficult questions of… jurisdiction when the case alternatively could be resolved on the merits in favor of the same party,” Norton v. Mathews, 427 U. S. 524, 532 (1976).

Concurrence, Privacy

Stenberg v. Carhart

Concurrence, Privacy / By

JUSTICE O’CONNOR, concurring.

The issue of abortion is one of the most contentious and controversial in contemporary American society. It presents extraordinarily difficult questions that, as the Court recognizes, involve “virtually irreconcilable points of view.” Ante, at 921. The specific question we face today is whether Nebraska’s attempt to proscribe a particular method of abortion, commonly known as “partial birth abortion,” is constitutional. For the reasons stated in the Court’s opinion, I agree that Nebraska’s statute cannot be reconciled with our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and is therefore unconstitutional. I write separately to emphasize the following points.

First, the Nebraska statute is inconsistent with Casey because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother. See id., at 879 (plurality opinion). Importantly, Nebraska’s own statutory scheme underscores this constitutional infirmity. As we held in Casey, prior to viability “the woman has a right to choose to terminate her pregnancy.” Id., at 870. After the fetus has become viable, States may substantially regulate and even proscribe abortion, but any such regulation or proscription must contain an exception for instances “‘where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'” Id., at 879 (quoting Roe v. Wade, 410 U. S. 113,

Anthony Kennedy, Economic Activity, Harry Blackmun, Majority, Thurgood Marshall, William Brennan

Stewart v. Abend

Anthony Kennedy, Economic Activity, Harry Blackmun, Majority, Thurgood Marshall, William Brennan / By

Justice O’CONNOR delivered the opinion of the Court.

The author of a preexisting work may assign to another the right to use it in a derivative work. In this case, the author of a preexisting work agreed to assign the rights in his renewal copyright term to the owner of a derivative work, but died before the commencement of the renewal period. The question presented is whether the owner of the derivative work infringed the rights of the successor owner of the preexisting work by continued distribution and publication of the derivative work during the renewal term of the preexisting work.

I

Cornell Woolrich authored the story “It Had to Be Murder,” which was first published in February, 1942, in Dime Detective Magazine. The magazine’s publisher, Popular Publications, Inc., obtained the rights to magazine publication of the story, and Woolrich retained all other rights. Popular Publications obtained a blanket copyright for the issue of Dime Detective Magazine in which “It Had to Be Murder” was published.

The Copyright Act of 1909, 35 Stat. 1075, 17 U.S.C. § 1 et seq. (1976 ed.) (1909 Act), provided authors a 28-year initial term of copyright protection plus a 28-year renewal term. See 17 U.S.C. § 24 (1976 ed.). In 1945, Woolrich agreed to assign the rights to make motion picture versions of six of his stories, including “It Had to Be Murder,” to B.G. De Sylva Productions for $9,250. He also agreed to renew the copyrights in the stories at the appropriate time, and to assign

Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Timeline, Warren Burger, William Rehnquist

Strickland v. Washington

Byron White, Civil Rights, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Timeline, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.

I

A

During a 10-day period in September, 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnaping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the third of the criminal episodes. The State of Florida indicted respondent for kidnaping and murder and appointed an experienced criminal lawyer to represent him.

Counsel actively pursued pretrial motions and discovery. He cut his efforts short, however, and he experienced a sense of hopelessness about the case, when he learned that, against his specific advice, respondent had also confessed to the first two murders. By the date set for trial, respondent was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnaping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges.

Attorneys, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan

Sullivan v. Hudson

Attorneys, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The issue before us in this case is whether a Social Security claimant is entitled to an award of attorney’s fees under the Equal Access to Justice Act for representation provided during administrative proceedings held pursuant to a district court order remanding the action to the Secretary of Health and Human Services.

I

Respondent Elmer Hudson filed an application for the establishment of a period of disability and for disability benefits under the Social Security Act, 49 Stat. 620, as amended, 42 U.S.C. § 401 et seq. (1982 ed. and Supp. V) on September 9, 1981. On the same day, she filed an application for supplemental security income under Title XVI of the Act. Respondent, now 50, submitted medical evidence indicating obesity, limitations in movement, and lower back pain. Her application for benefits was administratively denied, and that position was upheld on reconsideration by the Social Security Administration. Respondent requested and received a hearing before an Administrative Law Judge (ALJ), where she was represented by a Legal Services Corporation paralegal. At the hearing, respondent testified that she suffered from back pain, depression, and nervousness. Respondent was in a state of anxiety and cried throughout the hearing. The ALJ ordered a posthearing psychiatric examination by Dr. Anderson, a psychiatrist, and respondent’s representative chose to have her undergo an additional evaluation by Dr. Myers, a

Antonin Scalia, Dissent, Economic Activity, William Rehnquist

Sheridan v. United States

Antonin Scalia, Dissent, Economic Activity, William Rehnquist / By

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

Petitioners seek to recover money damages under a section of the Federal Tort Claims Act (FTCA) that authorizes claims against the Government for personal injuries

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.

28 U.S.C. § 1346(b). That section is subject to an exception for any claim “arising out of” an assault or battery. 28 U.S.C. § 2680(h). Despite the unqualified language of this exception, the Court today holds that it does not protect the Government from liability for a battery committed by a Government employee who acted outside the scope of his employment if other Government employees had a duty to prevent the battery.

If we were to construe the words according to their ordinary meaning, we would say that a claim “arises out of” a battery in any case in which the battery is essential to the claim. Thus when the Court construed another exception to the FTCA for claims “arising in respect of… the detention of any goods” by customs or law enforcement officials, 28 U.S.C. § 2680(c), we equated “arising in respect of” with “arising out of,” and decided that the phrase includes “all injuries associated in any way with the detention’ of goods.” See Kosak v. United States, 465 U. S. 848, 465 U. S. 854 (1984). A parallel construction of the exception at issue here leads to the conclusion that

Anthony Kennedy, Antonin Scalia, Byron White, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Skinner v. Mid-America Pipeline Co

Anthony Kennedy, Antonin Scalia, Byron White, Economic Activity, Harry Blackmun, John Paul Stevens, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

We decide today whether § 7005 of the Consolidated Onmibus Budget Reconciliation Act of 1985, which directs the Secretary of Transportation to establish a system of user fees to cover the costs of administering certain federal pipeline safety programs, is an unconstitutional delegation of the taxing power by Congress to the Executive Branch. We hold that it is not.

I

In 1986, Congress enacted the Consolidated Onmibus Budget Reconciliation Act of 1985 (COBRA), Pub.L. 99-272, 100 Stat. 82. Section 7005 of COBRA, codified at 49 U.S.C. App. § 1682a (1982 ed., Supp. IV), and entitled “Pipeline safety user fees,” directs the Secretary of Transportation (Secretary) to

establish a schedule of fees based on the usage, in reasonable relationship to volume-miles, miles, revenues, or an appropriate combination thereof, of natural gas and hazardous liquid pipelines.

§ 7005(a)(1). These fees are to be collected annually, § 7005(b), from

persons operating -(A) all pipeline facilities subject to the Hazardous Liquid Pipeline Safety Act of 1979 (49 U.S.C.App. 2001 et seq. ); and (B) all pipeline transmission facilities and all liquified natural gas facilities subject to the jurisdiction of the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C.App. 1671 et seq. ).

§ 7005(a)(3). The Hazardous Liquid Pipeline Safety Act (HLPSA) regulates interstate and intrastate pipelines carrying petroleum, petroleum products, or anhydrous ammonia.

Anthony Kennedy, Concurrence, Criminal Procedure, William Rehnquist

Simmons v. South Carolina

Anthony Kennedy, Concurrence, Criminal Procedure, William Rehnquist / By

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

“Capital sentencing proceedings must of course satisfy the dictates of the Due Process Clause,” Clemons v. Mississippi, 494 U. S. 738, 746 (1990), and one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him. Cf. Crane v. Kentucky, 476 U. S. 683, 690 (1986). In capital cases, we have held that the defendant’s future dangerousness is a consideration on which the State may rely in seeking the death penalty. See California v. Ramos, 463 U. S. 992, 1002-1003 (1983). But “[w]here the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty,… the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain’ [requires that the defendant be afforded an opportunity to introduce evidence on this point].” Skipper v. South Carolina, 476 U. S. 1, 5, n. 1 (1986), quoting Gardner v. Florida, 430 U. S. 349, 362 (1977) (plurality opinion); see also 476 U. S., at 9-10 (Powell, J., concurring in judgment).

In this case, petitioner physically and sexually assaulted three elderly women-one of them his own grandmotherbefore killing a fourth. At the capital sentencing proceed

*Compare ante, at 162, n. 4 (refraining from addressing Simmons’ Eighth Amendment claim), with ante, at 173-174 (SOUTER,