In The

Supreme Court of the United States



dba Schwitzer Turbochargers

Decided March 20, 1990

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 9–0
Click any Justice for detail
Joining O'Connor opinion: Justice SCALIA Justice SCALIA
Citation: 494 U.S. 545 Docket: 88–334Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

Next opinion >< Previous opinion

DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."


JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring.

I join the Court's opinion, but write separately to note what the Court acknowledges in the last sentence of a footnote, see ante at 494 U. S. 551 -552, n 3: that the question whether petitioner has stated a valid claim under § 1981 remains open. In the District Court, petitioner claimed that respondent had fired him because of his race and retaliated against him for filing a charge of discrimination with the Equal Employment Opportunity Commission. Ante at 494 U. S. 548. As Patterson v. McLean Credit Union, 491 U. S. 164 (1989), was decided after the Court of Appeals issued its decision, the applicability of § 1981 to these claims was not specifically addressed. This Court's usual practice is to decline to address questions raised for the first time here. See United States v. Mendenhall, 446 U. S. 544, 446 U. S. 551 -552, n. 5 (1980); Youakim v. Miller, 425 U. S. 231, 425 U. S. 234 (1976). The Court adheres to this practice, noting that arguments based on Patterson neither were "presented to either court below" nor are to be found "in the record." Ante at 494 U. S. 552, n. 3. The Court correctly concludes that there is "therefore... nothing in the record to justify affirming the Fourth Circuit's judgment" at this juncture. Ibid. On remand, therefore, the parties will have ample opportunity to present arguments, and the lower courts will have the first opportunity to consider whether either of petitioner's charges relates to the formation or enforcement of a contract, the two types of claims actionable under § 1981, Patterson, supra, at 491 U. S. 176 -178, or relates only to "post-formation conduct unrelated to an employee's right to enforce [his] contract." Id. at 491 U. S. 180.

Supreme Court icon marking end of opinion

Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.