O’Connor had immense power as swing vote

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Justice Sandra Day O'Connor, who announced her retirement Friday, was guaranteed a place in the history books when she became the first woman to serve on the Supreme Court.

But in her 24 years on the court she became far more significant than simply the first female justice. She was often the swing vote that decided high-profile cases.

Never as consistently conservative as those on the right would have liked, but sometimes providing the decisive fifth vote in cases dear to the hearts of conservatives, such as her vote in 2002 to approve Ohio's school voucher plan, O'Connor, 75, has wielded immense power in her years on the court.

Far from doctrinaire, in many cases O'Connor felt her way toward a compromise position on an ideologically fractured court.

She seemed to approach judging as she once approached her job as an Arizona legislator, sensitive to shifts in public opinion. She was the only member of the current court who had ever been elected to public office.

In a 1989 case called Penry v. Lynaugh, she wrote the majority opinion ruling that a mentally retarded murderer with the reasoning capacity of a 7-year-old could be executed.

This was not a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishments” because, she said, “there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses.”

But by 2002 she had reversed her view, joining five other justices in Atkins v. Virginia in ruling that “death is not a suitable punishment for a mentally retarded criminal.”

The majority said it reached that conclusion because several states had banned execution of the mentally retarded since the 1980s and because public opinion had turned against the practice.

In one of the last dissenting opinions she wrote, O'Connor last week showed her sympathy for the property owner when faced with the power of government.

In a case testing whether the city of New London, Conn., could condemn and acquire private homes for an urban redevelopment project, O'Connor dissented when the majority of the justices backed the city. The property acquired would be turned over to a real estate developer.

As a result of the court's ruling, she said, "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. ... The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

The landmark case for which O’Connor may be especially remembered is her majority opinion in 2003 approving the admissions program at the University of Michigan law school, which used a race-conscious policy to aim for a “critical mass” of minorities.

After O’Connor sided with the court’s more liberal justices in the 5-4 vote to allow the use of race in the admissions policy, conservatives heaped scorn on her.

Scorn from Scalia
Justice Antonin Scalia, often an O'Connor adversary, said the "critical mass" justification "challenges even the most gullible mind" and was "a sham" to provide cover for racial discrimination.

At the conservative think tank the American Enterprise Institute, legal scholar Michael Greve predicted that the Michigan law school decision, Grutter v. Bollinger, "will join Roe v. Wade (the 1973 abortion decision) as a judicial litmus test. And Sandra Day O'Connor — unrivaled in her heartfelt desire for social consensus — will join Harry Blackmun (the author of Roe v. Wade) in the pantheon of deeply divisive justices. The decent, honorable Justice O'Connor does not deserve the vicious attacks coming her way. The fact that she has brought them on herself makes her laughable Grutter opinion only more perplexing."

"She clearly emerged as a swing vote, something that hasn't necessarily endeared her to conservatives. For example, she cast the deciding vote in the case striking down Nebraska's partial-birth abortion statute in 2000," noted Brannon Denning, professor at Cumberland School of Law at Samford University in Birmingham, Ala. "O'Connor's tendency to find a middle ground and eschew foundationalist decisions may be a function of her political experience."

She was appointed to the Arizona Senate in 1969 and was then elected to two two-year terms. In 1975, she was elected to serve as a judge on the Maricopa County Superior Court.

O'Connor's stint there led Arizona's Democratic governor, Bruce Babbitt, to select her as his first appointee to the Arizona Court of Appeals in 1980.

Less than two years later, on July 7, 1981, President Reagan fulfilled a campaign pledge by announcing that he was nominating the first woman to the Supreme Court.

Starr's key role
Columnists Rowland Evans and Robert Novak wrote a few days later that anti-abortion activists were "stunned" by O’Connor’s votes as a legislator in favor of abortion rights.

Evans and Novak reported that "a hurriedly prepared, error-filled memo by a young Justice Department lawyer convinced President Reagan to go through with nominating Judge Sandra O’Connor, even at grave political risk."

The young lawyer’s name: Kenneth Starr, the man who would 18 years later serve as independent counsel in the investigation of President Clinton.

During her confirmation hearings, O’Connor said her vote as a legislator to decriminalize abortion had been a mistake. But she refused to tell the Judiciary Committee how she would vote on abortion cases if any came before the court.

In a 1983 case, O'Connor dissented when the majority of justices voted to strike down an Akron, Ohio, ordinance that prohibited a doctor from performing an abortion on a minor under the age of 15 without a court order or the consent of one of her parents.

O'Connor criticized the Roe v. Wade decision that had legalized abortion nationwide, calling Roe's trimester approach "completely unworkable" and adding that "the state's interest in protecting potential human life exists throughout the pregnancy," not only after the fetus becomes able to survive outside the mother's womb, as the Roe decision had ruled.

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