408
O'Connor, J., dissenting
seldom answered, and then only for limited purposes. See Cherry Cotton Mills, Inc. v. United States, 327 U. S. 536, 539 (1946); National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S., at 471. Answering this question today merely opens the back door to premature adjudication of similarly broad and novel theories in the future.
Weeding out such endeavors, Rule 14.1(a), like other waiver rules, rests firmly upon a limited view of our judicial power. See, e. g., Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (Scalia, J.) ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them"). "The doctrine of judicial restraint teaches us that patience in the judicial resolution of conflicts may sometimes produce the most desirable result." Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 183 (1982). Whether the result of today's decision is desirable I do not decide. But I think it clear that the Court has exhibited little patience in reaching that result.
II
Accepting Lebron's concession that Amtrak is a private entity, I must "traverse th[e] difficult terrain," ante, at 378, that the Court sees fit to avoid, and answer the question that is properly presented to us: whether Amtrak's decision to ban Lebron's speech, although made by a concededly private entity, is nevertheless attributable to the Government and therefore considered state action for constitutional purposes. Reflecting the discontinuity that marks the law in this area, we have variously characterized the inquiry as whether "there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974); whether the State, by encouraging the challenged conduct, could be thought "responsible for those
Page: Index Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 NextLast modified: October 4, 2007