Supreme Court Opinions

Attorneys, Partial concurrence, partial dissent, Warren Burger, William Rehnquist

Zauderer v. Office of Disc. Counsel

Attorneys, Partial concurrence, partial dissent, Warren Burger, William Rehnquist / By

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

I join Parts I, II, V, and VI of the Court’s opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer’s use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court’s judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio’s blanket ban. [ Footnote 3/1 ] I dissent from Part III of the Court’s opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio’s rule.

Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed is professional advice. Almost every State restricts an attorney’s ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced

Concurrence, First Amendment, Timeline

Zelman v. Simmons-Harris

Concurrence, First Amendment, Timeline / By

JUSTICE O’CONNOR, concurring.

The Court holds that Ohio’s Pilot Project Scholarship Program, Ohio Rev. Code Ann. §§ 3313.974-3313.979 (Anderson 1999 and Supp. 2000) (voucher program), survives respondents’ Establishment Clause challenge. While I join the Court’s opinion, I write separately for two reasons. First, although the Court takes an important step, I do not believe that today’s decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, marks a dramatic break from the past. Second, given the emphasis the Court places on verifying that parents of voucher students in religious schools have exercised “true private choice,” I think it is worth elaborating on the Court’s conclusion that this inquiry should consider all reasonable educational alternatives to religious schools that are available to parents. To do otherwise is to ignore how the educational system in Cleveland actually functions.

I

These cases are different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restrictions on the use of these funds. The share of public resources that reach religious schools is not, however, as significant as respondents suggest. See, e. g., Brief for Respondents Simmons-Harris et al. 1-2. Data from the 1999-2000 school year indicate that 82 percent of schools participating in the

Civil Rights, Concurrence

Wygant v. Jackson Bd. of Educ

Civil Rights, Concurrence / By

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

This case requires us to define and apply the standard required by the Equal Protection Clause when a governmental agency agrees to give preferences on the basis of race or national origin in making layoffs of employees. The specific question posed is, as JUSTICE MARSHALL puts it,

whether the Constitution prohibits a union and a local school board from developing a collective bargaining agreement that apportions layoffs between two racially determined groups as a means of preserving the effects of an affirmative hiring policy.

Post at 476 U. S. 300 (dissenting). There is no issue here of the interpretation and application of Title VII of the Civil Rights Act of 1964; accordingly, we have only the constitutional issue to resolve.

The Equal Protection Clause standard applicable to racial classifications that work to the disadvantage of “nonminorities” has been articulated in various ways. See, e.g., post at 476 U. S. 301 -302 (MARSHALL, J., dissenting). JUSTICE POWELL now would require that: (1) the racial classification be justified by a ” compelling governmental interest,'” and (2) the means chosen by the State to effectuate its purpose be “narrowly tailored.” Ante at 476 U. S. 274. This standard reflects the belief, apparently held by all Members of this Court, that racial classifications of any sort must be subjected to “strict scrutiny,” however defined. See, e.g., Fullilove v. Klutznick, 448 U. S.

Concurrence, Criminal Procedure, Harry Blackmun, John Paul Stevens

Wright v. West

Concurrence, Criminal Procedure, Harry Blackmun, John Paul Stevens / By

JUSTICE O’CONNOR, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, concurring in the judgment.

I agree that the evidence sufficiently supported respondent’s conviction. I write separately only to express disagreement with certain statements in JUSTICE THOMAS’ extended discussion, ante, at 285-295, of this Court’s habeas corpus jurisprudence.

First, JUSTICE THOMAS errs in describing the pre-1953 law of habeas corpus. Ante, at 285. While it is true that a state prisoner could not obtain the writ if he had been provided a full and fair hearing in the state courts, this rule governed the merits of a claim under the Due Process Clause. It was not a threshold bar to the consideration of O’CONNOR, J., concurring in judgment

other federal claims, because, with rare exceptions, there were no other federal claims available at the time. During the period JUSTICE THOMAS discusses, the guarantees of the Bill of Rights were not yet understood to apply in state criminal prosecutions. The only protections the Constitution afforded to state prisoners were those for which the text of the Constitution explicitly limited the authority of the States, most notably the Due Process Clause of the Fourteenth Amendment. And in the area of criminal procedure, the Due Process Clause was understood to guarantee no more than a full and fair hearing in the state courts. See, e. g., Ponzi v. Fessenden, 258 U. S. 254, 260 (1922) (“One accused of crime has a right to a full and fair trial according to the

Antonin Scalia, Dissent, Judicial Power, Lewis Powell, William Rehnquist

Wright v. Roanoke Redevelopment Auth

Antonin Scalia, Dissent, Judicial Power, Lewis Powell, William Rehnquist / By

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

As the Court’s opinion acknowledges, there must be a deprivation “of a right’ secured by a federal statute” before 42 U.S.C. § 1983 provides a remedial cause of action. Ante at 479 U. S. 423. Petitioners’ claim of a federally enforceable “right” raises three distinct questions. The first question is whether the Brooke Amendment to the Public Housing Act of 1937, Pub.L. 91-152, § 213, 83 Stat. 389 (1969), itself has created an enforceable right to utilities. The second is whether, in the absence of any indication of congressional intent to create a right to utilities, administrative regulations can create such a right. The third is whether, assuming administrative regulations alone could create a right enforceable in a § 1983 action, the regulations at issue in this case have established standards capable of judicial interpretation and application.

Whether a federal statute confers substantive rights is not an issue unique to § 1983 actions. In implied right of action cases, the Court also has asked, since Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975), whether “the statute create[s] a federal right in favor of the plaintiff.” In determining whether a statute creates enforceable rights, the “key to the inquiry is the intent of the Legislature.” Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 453 U. S. 13 (1981). We have looked first to the statutory

Dissent, Economic Activity, Harry Blackmun, William Rehnquist

Woolworth Co. v. Taxation Dept

Dissent, Economic Activity, Harry Blackmun, William Rehnquist / By

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

The $39.9 million in dividend income at issue in this case was earned by four foreign subsidiaries of F. W. Woolworth Co.: F. W. Woolworth GmbH (Germany), F. W. Woolworth, Ltd. (Canada), F. W. Woolworth, S. A. de C. V. Mexico (Mexico), and F. W. Woolworth Co., Ltd. (England). F. W. Woolworth Co. wholly owned its German, Canadian, and Mexican subsidiaries, and had a 52.7% interest in its English subsidiary. During the tax year in question, the subsidiaries apparently operated somewhat autonomously in their respective markets, but “mail, telephone, and teletype communication between the upper echelons of management of the parent and the subsidiaries” was ” frequent.'” Ante at 458 U. S. 368 (footnote omitted) (quoting App. to Juris.Statement 34a). Moreover,

[d]ecisions about major financial decisions, such as the amount of dividends to be paid by the subsidiaries and the creation of substantial debt, had to be approved by the parent,

and “Woolworth’s published financial statements, such as its annual reports, were prepared on a consolidated basis.” Ante at 458 U. S. 368 -39 (citations and footnotes omitted).

These controlled subsidiaries, operating in geographically diverse markets in the same line of business as F. W. Woolworth itself, were simply not “unrelated,” [ Footnote 2/1 ] “discrete business enterprise[s],” [ Footnote 2/2 ] “hav[ing] nothing to do with the activities” [ Footnote 2/3

Concurrence, Criminal Procedure

Woodford v. Garceau

Concurrence, Criminal Procedure / By

JUSTICE O’CONNOR, concurring in the judgment.

The Court today holds that the post-Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) version of 28

IJU8TICE O’CONNOR contends that we may have misapplied our test because a filing labeled “Specification of Non-Frivolous Issues” placed the merits of respondent’s claims before the District Court before AEDPA’s effective date. Post, at 211 (opinion concurring in judgment). That is simply not so. Respondent’s “Specification of Non-Frivolous Issues” plainly stated that “[b]ased on a preliminary review of case materials, counsel believes the following federal constitutional issues exist in this case and are among the issues that may be raised on [Garceau’s] behalf in a petition for habeas corpus.” App. to Brief in Opposition 227 (emphasis added). The clear import of this language is that the filing itself did not seek any relief on the merits or place the merits of respondent’s claims before the District Court for decision. Rather, the document simply alerted the District Court as to some of the possible claims that might be raised by respondent in the future. Indeed, the habeas corpus application respondent eventually filed contained numerous issues that were not mentioned in the “Specification of Non-Frivolous Issues.” U. S. C. § 2254 applies to respondent Robert Garceau’s habeas corpus application because Garceau did not file his application until after AEDPA’s effective date. I agree with that holding. I concur only in

Criminal Procedure, Partial concurrence, partial dissent, William Rehnquist

Withrow v. Williams

Criminal Procedure, Partial concurrence, partial dissent, William Rehnquist / By

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

Today the Court permits the federal courts to overturn on habeas the conviction of a double murderer, not on the basis of an inexorable constitutional or statutory command, but because it believes the result desirable from the standpoint of equity and judicial administration. Because the principles that inform our habeas jurisprudence-finality, federalism, and fairness-counsel decisively against the result the Court reaches, I respectfully dissent from this holding.

I

The Court does not sit today in direct review of a statecourt judgment of conviction. Rather, respondent seeks relief by collaterally attacking his conviction through the writ of habeas corpus. While petitions for the writ of habeas corpus are now commonplace-over 12,000 were filed in 1990, compared to 127 in 1941-their current ubiquity ought not detract from the writ’s historic importance. See L. Mecham, Annual Report of the Director of the Administrative Office of the United States Courts 191 (1991) (1990 figures); Fay v. Noia, 372 U. S. 391, 446, n. 2 (1963) (Clark, J., dissenting) (1941 figures). “The Great Writ” can be traced through the common law to well before the founding of this Nation; its role as a “prompt and efficacious remedy for whatever society deems to be intolerable restraints” is beyond question. Fay, 372 U. S., at 401-402. As Justice Harlan explained:”Habeas corpus ad subjiciendum is today, as

Concurrence, Economic Activity

Wisconsin Dept. of Revenue v. William Wrigley Jr. Co

Concurrence, Economic Activity / By

JUSTICE O’CONNOR, concurring in Parts I and II, and concurring in the judgment.

I join Parts I and II of the Court’s opinion. I do not agree, however, that the replacement of stale gum served an independent business function. The replacement of stale gum by the sales representatives was part of ensuring the product was available to the public in a form that may be purchased. Making sure that one’s product is available and properly displayed serves no independent business function apart from requesting purchases; one cannot offer a product for sale if it is not available. I agree, however, that the storage of gum in the State and the use of agency stock checks were not ancillary to solicitation and were not de minimis. On that basis, I would hold that Wrigley’s income is subject to taxation by Wisconsin.

Antonin Scalia, Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, William Brennan, William Rehnquist

Wimberly v. Labor & Indus. Rel. Comm’n

Antonin Scalia, Byron White, Civil Rights, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

The Missouri Supreme Court concluded that the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(12), does not prohibit a State from disqualifying unemployment compensation claimants who leave their jobs because of pregnancy, when the State imposes the same disqualification on all claimants who leave their jobs for a reason not causally connected to their work or their employer. 688 S.W.2d 344 (1985). We granted certiorari, 475 U. S. 1118 (1986), because the court’s decision conflicts with that of the Court of Appeals for the Fourth Circuit in Brown v. Porcher, 660 F.2d 1001 (1981), cert. denied, 459 U. S. 1150 (1983), on a question of practical significance in the administration of state unemployment compensation laws.

I

In August, 1980, after having been employed by the J. C. Penney Company for approximately three years, petitioner requested a leave of absence on account of her pregnancy. Pursuant to its established policy, the J. C. Penney Company granted petitioner a “leave without guarantee of reinstatement,” meaning that petitioner would be rehired only if a position was available when petitioner was ready to return to work. Petitioner’s child was born on November 5, 1980. On December 1, 1980, when petitioner notified J. C. Penney that she wished to return to work, she was told that there were no positions open.

Petitioner then filed a claim for unemployment benefits. The claim was denied by the Division of Employment