O'Connor's legacy more than a mere swing vote

7/3/2005

WASHINGTON - Last Monday, likely her last day on the Supreme Court bench, Justice Sandra Day O'Connor served as the fifth vote for the court's holding that two counties in Kentucky violated the First Amendment by posting the Ten Commandments, later augmented with secular documents, in their courthouses.

But in addition to signing the majority opinion of Justice David Souter, one of the court's staunchest advocates of a strict separation of church and state, Justice O'Connor wrote a separate concurring opinion in which she emphasized that the court was ruling as it did "for the same reason that guided the Framers - respect for religion's special role in society.

Justice O'Connor's role in the Ten Commandments case - providing the fifth vote for the majority while writing separately in softer tones - exemplified the influential role she has played in her 24 years on the court.

It is a cliche that Justice O'Connor is a swing vote, sometimes voting with liberals, sometimes with conservatives, but she has been more than a whimsical wild card. Her case-by-case approach and penchant for separate concurrences have prevented the court from embracing extreme positions, to the consternation of more ideological colleagues, especially Justice Antonin Scalia.

Justice O'Connor has become the arbiter of entire areas of constitutional law, including the role of religion in public life. She is the author of what is called the "endorsement test" for determining whether government involvement with religion violates the First Amendment. Under that test, the court asks whether a "reasonable observer" would consider, say, a Nativity scene in a courthouse an endorsement of religion.

"O'Connor has been remarkably consistent and consistently influential," said Nancy Maveety, an associate professor political science at Tulane University and the author of Sandra Day O'Connor: Strategist on the Court. Justice Maveety, who has analyzed Justice O'Connor's voting patterns over many years, described Justice O'Connor as "contextually conservative" which means that the justice is "comparatively restrained when it comes to revising or overturning precedent and is likely to reason by exception when faced with a case not adequately covered by an existing rule."

Ms. Maveety described Justice O'Connor's approach to judging as "judicial accommodationism," and said that Justice O'Connor had made it a practice to join "minimum-winning collations" on the court, enhancing her influence further by writing either "regular" concurring opinions (in cases in which she also signed the majority opinion) or "special" concurrences, in which she concurred only in the result.

The result of Justice O'Connor's "accommodationism," Ms. Maveety said, is that the court as a whole often will embrace a "common-sense" position in tune with public opinion.

That's the problem, Justice O'Connor's critics have charged, accusing her of being unprincipled and of acting like the legislator she once was.

In reacting yesterday to her retirement, Derek Gaubatz, director of litigation of the Becket Fund for Religious Liberty, praised Justice O'Connor for her generous view of the First Amendment's Free Exercise Clause, but complained about Justice O'Connor's approach to another part of the First Amendment prohibiting the "establishment" of religion by government.

"She was stubbornly resistant to any sort of categorization." Mr. Gaubatz said. "Her 'reasonable observer' test for government display of religious symbols led the court away from any principled interpretation of what counts as an 'establishment of religion' to a subjective test that varied with the whims (including frequently Justice O'Connor herself) of the individual justices."

But the case-by-case approach that O'Connor's critics see as a vice is regarded as a virtue by some legal observers.

"In any given era you're likely to find someone occupying that middle position on the court," said Edward B. Foley, a law professor at Ohio State University and a former Ohio state solicitor. "Like Justice Lewis Powell [in the 1970s and '80s], Justice O'Connor was a balancer, and it's not surprising that a balancer ends up as a swing vote."

Ken Gormley, a professor law at Duquesne University who is close to Justice O'Connor, offered a similar description. "I think she really made her name in recent years as a pragmatist," Mr. Gormley said. "She found practical solutions to impossible problems."

As would not be the case if it were Chief Justice William Rehnquist who had stepped down yesterday, a retirement that was widely expected because of Chief Justice Rehnquist's poor health, the court's position on several issues could be up for grabs depending on the philosophy of the women or man who succeeds Justice O'Connor.

"The stakes are much higher after an O'Connor retirement than after a Rehnquist retirement," said Michael Comiskey, associate professor of political science at Penn State's Fayette campus and the author of Seeking Justices: The Judging of Supreme Court Nominees. "If he chooses someone in the mold of Justice [Antonin] Scalia or [Clarence] Thomas, I think we would have another situation like the one involving Robert Bork," Mr. Comiskey added, referring to President Ronald Reagan's unsuccessful nominee for the court in 1987. "On the other hand, if he chose someone who was perceived as only a moderate conservative confirmation would be easier."

Within hours of Justice O'Connor's announcement yesterday, e-mail Inboxes in

Washington were filled with litanies of the decisions in which Justice O'Connor cast the crucial vote for a liberal position - holdings that might be undone by a more ideological successor.

Religion. In addition to her votes this week to strike down Ten Commandments monuments on public property in Kentucky and in Texas (where she was in the minority), Justice O'Connor was part of a 5-4 majority that ruled in the 1992 case of Lee vs. Weisman that a prayer at a public school graduation was unconstitutional.

Abortion. Justice O'Connor joined the majority in the 1992 Planned Parenthood of Southeast Pennsylvania in Casey vs. Planned Parenthood decision that reaffirmed the essential holding of Roe vs. Wade by a 5-4 vote. In 2000 she was part of a 5-4 majority in Stenberg vs. Carhart striking down a Nebraska law banning so-called "partial-birth" abortions. A similar federal law is moving up the appeals process.

Affirmative action. Justice O'Connor wrote the majority opinion in the 2003 case of Grutter vs. Bollinger upholding an affirmative action program at the University of Michigan Law School and reaffirming a principle first enunciated in the 1978 Bakke case that state universities may consider race as one factor in admissions.

Civil rights. Although critical in earlier cases of "racial gerrymandering" designed to maximize minority voting power, Justice O'Connor was part of a 5-4 majority in the 2001 case of Hunt vs. Cromartie allowing legislators to take race into account in redistricting. Last year, in Tennessee vs. Lane, Justice O'Connor joined with four liberal justices to uphold the right of disabled people to sue state governments under the Americans With Disabilities Act.

Although much attention yesterday was focused on swing votes in which Justice O'Connor supported a liberal result, she often swung in the conservative

direction. Along with Justices Rehnquist, Scalia, Thomas, and Anthony Kennedy, Justice O'Connor was a member of the "Federalism Five," a bare majority that struck down part or all of two federal laws - the Gun-Free School Zones Act and the Violence Against Women Act - on the grounds that they infringed on states' rights.

Arthur Hellman, a law professor at the University of Pittsburgh, noted that Justice O'Connor remained an ardent supporter of states' rights through her final term. For example, she vigorously dissented from last month's 6-3 decision in Gonzales vs. Raich upholding the right of the federal government to prosecute users of medical marijuana in California, despite the fact that the state allows the use of the drug by cancer patients. Mr. Hellman cited that dissent and Justice O'Connor's equally astringent dissent in last week's 5-4 Kelo vs. City of New London decision upholding the use of eminent domain as evidence that she was "going back to her roots" this term and voting conservatively. In the marijuana and eminent domain cases, Mr. Hellman noted, Justice Kennedy, not Justice O'Connor, voted with liberals - as he did this term in a 5-4 vote striking down the death penalty for murderers under the age of 18.

Mr. Hellman added that the fact that Justice Kennedy also has been a swing vote might complicate any plans President Bush has to replace move the court rightward.

"If Bush appoints someone quite conservative, I can see Kennedy moving

more to the liberal camp," Mr. Hellman said.

Contact Michael McGough at: mmcgough@nationalpress.com or 202-662-7575.