Supreme Court Opinions

Concurrence, First Amendment

McCreary County v. American Civil Liberties Union of Ky

Concurrence, First Amendment / By

Justice O’Connor, concurring.

I join in the Court’s opinion. The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions—one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees—of free speech, a free press, and the rights to assemble and petition—the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that “[w]e are a religious people,” Zorach v. Clauson, 343 U. S. 306, 313 (1952), has proved true. Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and Politics in America 28–29 (2d ed. 1999), and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations U. S. Stands Alone in its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Our guiding principle has been James Madison’s—that “[t]he Religion … of every man must be left to the conviction and conscience of every man.” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To that end, we have held that the guarantees of religious freedom protect citizens from religious incursions by the States as well as by the Federal Government. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947); Cantwell v. Connecticut, 310 U. S. 296 (1940). Government may not coerce a person into worshiping against her will, nor prohibit her from worshiping according to it. It may not prefer one religion over another or promote religion over nonbelief. Everson, supra, at 15–16. It may not entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 674 (1970). And government may not, by “endorsing religion or a religious practice,” “mak[e] adherence to religion relevant to a person’s standing in the political community.” Wallace v. Jaffree, 472 U. S. 38, 69 (1985) (O’Connor, J., concurring in judgment).

When we enforce these restrictions, we do so for the same reason that guided the Framers—respect for religion’s special role in society. Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. See ante, at 19–25. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. See Lynch v. Donnelly, 465 U. S. 668, 690 (1984) (O’Connor, J., concurring).

It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”). Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside the First Amendment’s protections. There is no list of approved and disapproved beliefs appended to the First Amendment—and the Amendment’s broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.

***

We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty—visionaries who held their faith “with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.” Zorach, supra, at 324–325 (Jackson, J., dissenting). In my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons given above, I join in the Court’s opinion.

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

United States v. $8,850 in Currency

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

United States Customs officials seized $8,850 in currency from the claimant as she passed through customs at Los Angeles International Airport. The question in this case is whether the Government’s 18-month delay in filing a civil proceeding for forfeiture of the currency violates the claimant’s right to due process of law. We conclude that the four-factor balancing test of Barker v. Wingo, 407 U. S. 514 (1972), provides the relevant framework for determining whether the delay in filing a forfeiture action was reasonable. Applying the Barker test to the circumstances of this case, we find no unreasonable delay.

I

A

Section 231 of the Bank Secrecy Act of 1970, 84 Stat. 1122, 31 U.S.C. § 1101, requires persons knowingly transporting monetary instruments exceeding $5,000 into the United States to file a report with the Customs Service declaring the amount being transported. Congress has authorized the Government to seize and forfeit any monetary instruments for which a required report was not filed. 31 U.S.C. § 1102(a). Since the Bank Secrecy Act does not specify the procedures to be followed in seizing monetary instruments, the Customs Service generally follows the procedures governing forfeitures for violations of the customs laws, as set forth in 19 U.S.C. § 1602 et seq. (1976 ed. and Supp. V), and the implementing regulations. Under these procedures, the Customs Service notifies any person who appears to have an interest

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

United States v. Alaska

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

JUSTICE O’CONNOR delivered the opinion of the Court. This original action presents a dispute between the United States and the State of Alaska over the ownership of submerged lands along Alaska’s Arctic Coast. In 1979, with leave of the Court, 442 U. S. 937, the United States filed a bill of complaint setting out a dispute over the right to offer lands in the Beaufort Sea for mineral leasing. Alaska counterclaimed, seeking a decree quieting its title to coastal submerged lands within two federal reservations, the N ational Petroleum Reserve-Alaska and the Arctic National Wildlife Range (now the Arctic National Wildlife Refuge). The Court appointed a Special Master. 444 U. S. 1065 (1980). Between 1980 and 1986, the Special Master oversaw extensive hearings and briefing. Before us now are the report of the Special Master and the exceptions of the parties. We overrule Alaska’s exceptions and sustain that of the United States.

I

Alaska and the United States dispute ownership of lands underlying tidal waters off Alaska’s North Slope. The region is rich in oil, and each sovereign seeks the right to grant

*Briefs of amici curiae were filed for the State of Alabama et al. by Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, and Jan S. Stevens, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Jane Brady of Delaware, Margery

Concurrence, Judicial Power, Lewis Powell, William Rehnquist

South Carolina v. Regan

Concurrence, Judicial Power, Lewis Powell, William Rehnquist / By

JUSTICE O’CONNOR, with whom JUSTICE POWELL, and JUSTICE REHNQUIST join, concurring in the judgment.

The motion of South Carolina for leave to file a complaint in our original jurisdiction raises three questions. First, the Court must decide whether Congress intended, by the Tax Anti-Injunction Act, 26 U.S.C. § 7421(a), to bar nontaxpayers like the State of South Carolina from challenging the validity of federal tax statutes in the courts. Second, if the Act generally does bar such nontaxpayer suits, the Court must decide whether Congress intended, and if so whether the Constitution permits it, to bar us from considering South Carolina’s complaint in our original jurisdiction. Third, if Congress either did not intend, or constitutionally is not permitted, to withdraw this case from our original jurisdiction, the Court must decide whether South Carolina’s challenge to the constitutionality of § 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S.C. § 103(j)(1) (1982 ed.), as added by § 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. 97-248, 96 Stat. 596, raises issues appropriate for original adjudication.

In answering the first question, the Court reaches the unwarranted conclusion that the Tax Anti-Injunction Act proscribes only those suits in which the complaining party, usually a taxpayer, can challenge the validity of a taxing measure in an alternative forum. The Court holds that suits by nontaxpayers generally are not barred. In my opinion,

Antonin Scalia, Clarence Thomas, Interstate Relations, Partial concurrence, partial dissent

Kansas v. Colorado

Antonin Scalia, Clarence Thomas, Interstate Relations, Partial concurrence, partial dissent / By

JUSTICE O’CONNOR, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring in part and dissenting in part.

I agree with the Court’s disposition of this case as to Colorado’s first and fourth exceptions to the Special Master’s Third Report, concerning the award and determination of damages. I therefore join Parts I, IV, and V of the Court’s opinion. I do not concur in Parts II and III of the Court’s opinion because I believe that the award of prejudgment interest to Kansas, coming over half a century after the Arkansas River Compact’s (hereinafter Compact) negotiation and approval, is clearly improper under our precedents.

We are dealing with an interstate compact apportioning the flow of a river between two States. A compact is a contract. It represents a bargained-for exchange between its signatories and “remains a legal document that must be construed and applied in accordance with its terms.” Texas v. New Mexico, 482 U. S. 124, 128 (1987); see also Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 285 (1959) (Frankfurter, J., dissenting) (“A Compact is, after all, a contract”). It is a fundamental tenet of contract law that parties to a contract are deemed to have contracted with reference to principles of law existing at the time the contract was made. See, e. g., Norfolk & Western R. Co. v.

be required.” Third Report 63. Because the circumstances in Kansas involved short-short run situations, and because such short-short run situations generally involve higher

Dissent, Interstate Relations, John Paul Stevens, William Brennan

Idaho v. Evans

Dissent, Interstate Relations, John Paul Stevens, William Brennan / By

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

The Special Master reasoned that Idaho was entitled to a “fair share” of the anadromous fish that are the subject of this dispute. Without quantifying that share, however, he rejected the claim that Washington and Oregon had mismanaged the fishery, Report of Special Master 30-34, concluding instead that they had acted in good faith, id. at 35, and that the relief requested by Idaho was unworkable, ibid. In reaching that conclusion, he refused to consider any evidence pertaining to years earlier than 1975 or to future developments. Id. at 25-26, 27.

The Court today overrules the exceptions to the report of the Special Master. I see substantial merit to several of the points raised by Idaho, and am persuaded that they require a remand to the Special Master for further proceedings. Accordingly, I dissent.

I

The Master properly concluded that “Idaho is entitled to its fair share of the fish.” Id. at 25. No one owns an individual fish until he reduces that fish to possession, Pierson v. Post 2 Am.Dec. 264 (N.Y. 1805), and, indeed, even the States do not have full-fledged “property” interests in the wildlife within their boundaries, see, e.g., Douglas v. Seacoast Products, Inc., 431 U. S. 265, 431 U. S. 284 (1977); Missouri v. Holland, 252 U. S. 416, 252 U. S. 434 (1920). Nonetheless, courts have long recognized the opportunity to fish as an interest of sufficient dignity and importance to warrant

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, David Souter, Harry Blackmun, Interstate Relations, John Paul Stevens, Majority, William Rehnquist

Nebraska v. Wyoming

Anthony Kennedy, Antonin Scalia, Byron White, Clarence Thomas, David Souter, Harry Blackmun, Interstate Relations, John Paul Stevens, Majority, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this original action we revisit the dispute among Nebraska, Wyoming, Colorado, and the United States over water rights to the North Platte River. In 1945, this Court entered a decree establishing interstate priorities on the North Platte and apportioning the natural flow of one critical portion of the river during the irrigation season. Nebraska returned to the Court in 1986 seeking an order for enforcement of the decree and injunctive relief. A Special Master, appointed by the Court, has supervised pretrial proceedings and discovery since 1987. Before us now are the Special Master’s recommended dispositions of several summary judgment motions, together with exceptions filed to the Special Master’s reports.

I

The North Platte River rises in northern Colorado and flows through Wyoming into Nebraska, where it joins the South Platte River. The topology of the river and the history of its early development are described at length in the Court’s 1945 opinion. See Nebraska v. Wyoming, 325 U. S.

*Briefs of amici curiae were filed for the Basin Electric Power Cooperative by Edward Weinberg, Richmond F. Allan, Michael J. Hinman, and Claire Olson; and for the National Audubon Society et al. by Peter A. A. Berle and Abbe David Lowell. 589, 592-599. In 1934, Nebraska, invoking this Court’s original jurisdiction under Article III, § 2, of the Constitution, brought an action against Wyoming seeking an equitable apportionment of the

Due Process, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan

Kolender v. Lawson

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

JUSTICE O’CONNOR delivered the opinion of the Court.

This appeal presents a facial challenge to a criminal statute that requires persons who loiter or wander on the streets to provide a “credible and reliable” identification and to account for their presence when requested by a peace officer under circumstances that would justify a stop under the standards of Terry v. Ohio, 392 U. S. 1 (1968). [ Footnote 1 ] We conclude that the statute as it has been construed is unconstitutionally vague within the meaning of the Due Process Clause of the Fourteenth Amendment by failing to clarify what is contemplated by the requirement that a suspect provide a “credible and reliable” identification. Accordingly, we affirm the judgment of the court below.

I

Appellee Edward Lawson was detained or arrested on approximately 15 occasions between March, 1975, and January, 1977, pursuant to Cal.Penal Code Ann. § 647(e) (West 1970). [ Footnote 2 ] Lawson was prosecuted only twice, and was convicted once. The second charge was dismissed.

Lawson then brought a civil action in the District Court for the Southern District of California seeking a declaratory judgment that § 647(e) is unconstitutional, a mandatory injunction to restrain enforcement of the statute, and compensatory and punitive damages against the various officers who detained him. The District Court found that § 647(e) was overbroad because “a person who is stopped on less than probable cause cannot be punished for failing to identify

Byron White, Federalism, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist

Bell v. New Jersey

Byron White, Federalism, Harry Blackmun, John Paul Stevens, Lewis Powell, Majority, Thurgood Marshall, Warren Burger, William Brennan, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In this case, we consider both the rights of the Federal Government when a State misuses funds advanced as part of a federal grant-in-aid program under Title I of the Elementary and Secondary Education Act and the manner in which the Government may assert those rights. We hold that the Federal Government may recover misused funds, that the Department of Education may determine administratively the amount of the debt, and that the State may seek judicial review of the agency’s determination.

I

The respondents, New Jersey and Pennsylvania, received grants from the Federal Government under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), Pub.L. 89-10, 79 Stat. 27, as amended, 20 U.S.C. § 2701 et seq. (1976 ed., Supp. V). Title I created a program designed to improve the educational opportunities available to disadvantaged children. § 102, 20 U.S.C. § 2702 (1976 ed., Supp. V). Local educational agencies obtain federal grants through state educational agencies, which in turn obtain grants from the Department of Education [ Footnote 1 ] upon providing assurances to the Secretary that the local educational agencies will spend the funds only on qualifying programs. § 182(a), 20 U.S.C. § 2832(a) (1976 ed., Supp. V). [ Footnote 2 ] In auditing New Jersey for the period September 1, 1970, through August, 1973, and Pennsylvania for the period July 1, 1967, through June 30, 1973, to ensure compliance with ESEA and

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist

Michigan v. Long

Byron White, Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR delivered the opinion of the Court.

In Terry v. Ohio, 392 U. S. 1 (1968), we upheld the validity of a protective search for weapons in the absence of probable cause to arrest because it is unreasonable to deny a police officer the right “to neutralize the threat of physical harm,” id. at 392 U. S. 24, when he possesses an articulable suspicion that an individual is armed and dangerous. We did not, however, expressly address whether such a protective search for weapons could extend to an area beyond the person in the absence of probable cause to arrest. In the present case, respondent David Long was convicted for possession of marihuana found by police in the passenger compartment and trunk of the automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court. We also examine Long’s argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction.

I

Deputies Howell and Lewis were on patrol in a rural area one evening when, shortly after midnight, they observed a car traveling erratically and at excessive speed. [ Footnote 1 ] The officers observed the car turning down a side road, where it swerved off into a shallow ditch.