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Last Day Reflected O'Connor's Legacy

URL: http://www.mapinc.org/drugnews/v05/n1062/a07.html
Newshawk: Richard Lake
Pubdate: Sat, 02 Jul 2005
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2005 PG Publishing
Contact: letters@post-gazette.com
Website: http://www.post-gazette.com/
Details: http://www.mapinc.org/media/341
Author: Michael McGough, Post-Gazette National Bureau
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

           

                                                                                                                                                                       

ANALYSIS: LAST DAY REFLECTED O'CONNOR'S LEGACY

WASHINGTON -- On 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 in their courthouses.

But in addition to signing the majority opinion of Justice David H.  Souter, one of the court's staunchest advocates of a strict separation of church and state, 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.  ...

"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."

O'Connor's role in the Ten Commandments case -- providing that 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 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, 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 to be an endorsement of religion.

"O'Connor has been remarkably consistent and consistently influential," said Nancy Maveety, a Tulane University associate professor political science and author of "Sandra Day O'Connor: Strategist on the Court."

Maveety, who has analyzed O'Connor's voting patterns over many years, described the justice as "contextually conservative," which means she 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."

Maveety described O'Connor's approach to judging as "judicial accommodationism," and said 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 O'Connor's "accommodationism," 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, O'Connor's critics have charged.  They accuse her of being unprincipled and acting like the legislator she once was.

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

"She was stubbornly resistant to any sort of categorization." 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 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, an Ohio State University law professor and former state solicitor of Ohio.  "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 Duquesne University law professor who is close to O'Connor, offered a similar description: "I think she really made her name in recent years as a pragmatist; she found practical solutions to impossible problems."

Upon O'Connor's departure, the court's position on several issues could be up for grabs now, depending on the philosophy of the women or man who President Bush chooses to succeed her.  This would not have been so true had it been Chief Justice William H.  Rehnquist who announced his retirement, a prospect that was widely expected because of his poor health.

"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 author of "Seeking Justices: The Judging of Supreme Court Nominees."

"If [Bush] 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," Comiskey said, referring to former President Ronald Reagan's controversial and eventually unsuccessful nominee for justice 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 O'Connor's announcement yesterday, e-mails were flying in Washington filled with interest groups' litanies of the decisions in which she had cast the crucial vote favoring a liberal position -- holdings that might be undone by a more ideologically conservative successor.

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

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

* Affirmative action.  O'Connor wrote the majority opinion in the 2003 case of Grutter v.  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 minorities' voting power, O'Connor was part of a 5-4 majority in the 2001 case of Hunt v.  Cromartie allowing legislators to take race into account in redistricting.  Last year, in Tennessee v.  Lane, 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 O'Connor supported a liberal result, she often swung in the conservative direction.

Along with Rehnquist, Scalia, Thomas and Anthony Kennedy, 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.

University of Pittsburgh law professor Arthur Hellman noted yesterday that 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 v.  Raich upholding the right of the federal government to prosecute users of medical marijuana in California, despite the fact that the state allows use of the drug by cancer patients.

Hellman cited that dissent and O'Connor's equally astringent dissent in last week's 5-4 Kelo v.  City of New London decision upholding use of eminent domain as evidence that this term she has been "going back to her roots," voting conservatively.