July 01, 2005,
Editor's Note: This piece appeared in the June 30, 2003, issue of National Review.
Conservatives have never much cared for Justice Sandra Day O'Connor. They viewed her nomination to the Supreme Court as the result of Ronald Reagan's ill-advised, because gratuitous, 1980 campaign pledge to appoint the first female justice. During her confirmation hearings in 1981, some conservatives argued that her record as a state legislator in Arizona made it unlikely that she would vote against Roe v. Wade. Her subsequent votes confirmed that suspicion: She reaffirmed Roe in Planned Parenthood v. Casey (1992) and even divined a kind of constitutional right to partial-birth abortion in Stenberg v. Carhart (2000). Conservative activists tend to regard her as a "moderate," or even "liberal," justice, and say that President Bush should avoid appointing another justice like her.
The standard conservative picture of Justice O'Connor is, at best, an oversimplification. She is, in truth, both better and worse than they think she is. Some conservative Court-watchers fear that the Right's confusion could cost it dearly if there is a nomination fight later this year.
The conservative case for O'Connor is that she has voted reasonably well. While she has become a reliable vote for social liberalism at the Court, she has also sided with conservatives on many occasions. The conservative heroes on the Court have been Clarence Thomas, Antonin Scalia, and, to a lesser extent, the chief justice, William Rehnquist. O'Connor has generally voted with them on racial preferences, the death penalty, criminal procedure, and other issues. She also sided with them in Bush v. Gore.
The Rehnquist Court is known for two great doctrinal innovations. Instead of continuing to insist on strict secularism, the Court now merely requires governmental neutrality among religions. The Court has also embarked on a so-called "federalism revolution" that limits the power of Congress while protecting the prerogatives of the states. O'Connor has played a leading role in both areas. Eugene Volokh, a law professor at UCLA who once clerked for her, concludes, "She's a woman of the center-right on a lot of the really important issues that have come before the Supreme Court."
Have conservatives damaged their own cause by taking an excessively negative view of O'Connor? Washington is rife with speculation that Rehnquist, O'Connor, or both will retire this summer. In one scenario, Rehnquist leaves and Bush elevates O'Connor to chief justice. If O'Connor leaves, however, the conservatives may have lowered the bar for her replacement. Alberto Gonzales, the White House counsel, is often mentioned as a potential Bush nominee. He is a moderate, and possibly to the left of O'Connor on some issues, such as racial preferences. But so hostile are conservatives to O'Connor that the White House could tell them that he is an improvement. If, on the other hand, Bush nominates a true-blue (true-red?) conservative to replace O'Connor, liberals will say that he is tilting the Court far to the right and by exaggerating her liberalism, the conservatives will have lent that claim credibility.
on the o'connor court
The difficulty conservatives have in getting a fix on O'Connor is a function of the bifurcation in their view of the Supreme Court. Conservative lawyers and law professors care a lot about issues such as affirmative action and federalism, on which O'Connor often votes the way they want. But social conservatives are the only mass constituency on the right that pays attention to the Court; and while they are usually allied with the conservative legal community, their priorities are different. The activists tend to disdain O'Connor because of her votes on abortion and, to a lesser extent, gay rights. The conservative lawyers tend to disagree with her decisions on those issues, but are less hostile to her because of her other votes. Another way of saying this is that how happy a conservative is with Justice O'Connor is a reflection on how happy he is with the Rehnquist Court.
Actually, the O'Connor Court might be a better label for it. Justice O'Connor gets her way more often than the chief justice does. As the "swing vote" on the Court, O'Connor is in the majority more often than any of her colleagues. Legal briefs in important cases are written to appeal, above all, to her. As a result of her position at the center of the Court, she can be a powerful voice for conservatives when she is with them. When the Court upheld school choice last year, it was her unqualified endorsement of the decision in a concurring opinion, as much as the majority opinion itself, that conferred solidity to the ruling. But it is disturbing to reflect that, given the power the Supreme Court has assumed, O'Connor has become the most powerful woman in America. Excluding foreign policy, indeed, one could even say that she is the most powerful person in America.
O'Connor's style of judging has increased that power. The justice is famous for issuing narrow rulings that turn on the particular facts of the case rather than rulings that articulate broad principles. Applying this common-law approach to constitutional cases preserves her freedom of action in future cases. But it also, and necessarily, undermines the predictability of the law and aggrandizes the judicial role. This is the principal critique that conservative lawyers including Justice Scalia, in many opinions make of O'Connor. She may often vote with Scalia and Thomas, says a former Rehnquist clerk, but "she is not driven by . . . legal arguments in the sense that a conservative jurist should be."
In the 1995 Adarand case, for example concerning racial preferences in federal contracting O'Connor voted with the conservatives. But she refused to say that racial preferences in federal contracting were always impermissible, or to expound some other rule that made it clear which preferences were okay. Instead she said that such preferences would receive "strict scrutiny" from the Court.
"Strict scrutiny" is the highest degree of scrutiny in the Court's equal-protection jurisprudence; traditionally, a legislative or bureaucratic classification is subjected to strict scrutiny as a prelude to being found impermissible. Justice O'Connor, however, went out of her way to explain that while the program at issue in the case had to go, in future cases strict scrutiny would not necessarily be "fatal in fact." So which preferences should stay and which go? The Clinton administration's response to this uncertain guidance was to preserve all existing federal preference programs except the one at issue and another that fell in court. To this day the Court's position with regard to other contracting preferences remains unclear.
O'Connor has ruled (or rather not ruled) similarly in racial-gerrymandering cases. Jeffrey Rosen, an influential legal commentator, has said that the upshot of those cases is that congressional district lines cannot be drawn with regard to race if the results offend Justice O'Connor's aesthetic sensibilities. Or take abortion. From her earliest days on the Court, O'Connor has argued that restrictions should be upheld so long as they do not impose an "undue burden" on the right to procure abortions. In Casey, Justices O'Connor, Anthony Kennedy, and David Souter adopted this standard for the Court. It is a standard, not a rule in the parlance of the law profs because its application depends on subjective judgments. In Stenberg, Justice O'Connor and four of her colleagues decided that a ban on partial-birth abortion imposed an "undue burden" on the abortion right; Justice Kennedy apparently felt that it was a "due burden," since he dissented from the judgment. Justice Scalia, also in dissent, noted that the only effect of the standard was to turn the Supreme Court into a veto board for abortion regulations.
In Bush v. Gore, the Court said that the doctrine underlying its decision was "limited to the present circumstances" and would not govern future cases. Critics have seized on the line as the epitome of the decision's lawlessness. But the Court has been making good-for-one-ticket-only decisions for some time, thanks in large part to O'Connor. Volokh, the former clerk for O'Connor, notes that in some areas of the law she has been willing to defend "bright-line rules" and that other justices also adopt vague, subjective standards on some occasions. This observation should be taken as a qualification, rather than a refutation, of a valid generalization: Justice O'Connor practices "one case at a time" judging more often, and with greater consequence, than her colleagues.
Conservative lawyers consider the federalism revolution the most valuable part of the Rehnquist Court's legacy. O'Connor's record on federalism is not without the ambiguities one would expect from the rest of her jurisprudence. She has sometimes held the revolution back as in U.S. v. Lopez, a 1995 case that is something of a landmark. The Constitution gives Congress the power to regulate commerce among the states. In Lopez, the Court ruled that the Gun-Free School Zones Act was not a legitimate exercise of this authority. The Court had not imposed a limit on congressional power under the commerce clause in six decades. O'Connor, the swing vote, joined a concurring opinion that appeared to weaken the Court's conclusion and left the law unsettled.
Notwithstanding such episodes, O'Connor can fairly be said to have not only participated in but even led the revolution. Her strong dissent from the federal drinking-age case in 1987 was a harbinger of it. And one of its signal accomplishments was the doctrine, announced by Justice O'Connor in Gregory v. Ashcroft (1991), that federal law will not be read to compromise the sovereignty of state governments unless the law includes a clear statement to that effect.
Unfortunately, the Court's federalism revolution isn't all it's cracked up to be by legal conservatives. Michael Greve of the American Enterprise Institute has noted that the Court's federalist decisions partake of romanticism about "states' rights." These decisions contain many references to the "dignity" of states. The Court's assumption is that it can protect federalism by protecting state governments. As a consequence, the Court has been inattentive to the "horizontal" dimension of federalism: to the constitutional provisions that promote competition and accountability among state governments by constraining their power. If Eliot Spitzer wants to nationalize American industries from the New York attorney general's office, the Supreme Court is not going to stop him. The O'Connor Court's federalism is not that of the Founders.
How legal conservatives convinced themselves that federalism could be restored by the federal judiciary is one of the minor mysteries of the age. The O'Connor Court is itself a significant offender against federalism, just as its predecessors, the Warren and Burger courts, were. When the voters of Colorado passed an amendment to the state constitution opposing certain gay-rights laws, the Court's response was to slap them down. On abortion, the Court O'Connor very much included is "hysterically nationalist," as Robert Nagel argues in The Implosion of American Federalism. When seen against this backdrop, the "federalism revolution" starts to look less like a readjustment of state-federal relations and more like a transfer of power from Congress to the Court.
A highly developed institutional amour propre may be the most striking feature of the O'Connor Court. It is present in the plurality opinion in Casey, which O'Connor joined. The Casey Court reaffirmed Roe in large part out of a reluctance to give in to the Court's critics. Appearing to capitulate would compromise the Court's ability to "speak before all others" for the nation's constitutional ideals. It is this self-regard that brings together O'Connor's penchant for finicky edicts, the O'Connor Court's marked reluctance to overturn the activist precedents of the Warren and Burger courts, the Court's racial cases, and its intervention in the 2000 election. There is an authoritarian streak in this jurisprudence that Justice O'Connor does not, in all likelihood, perceive.
Should O'Connor either retire or be nominated to chief justice, fixing her position in the conservative-liberal spectrum more precisely may be important in the political battles that follow. But her most important legacy is not as a liberal, moderate, or conservative justice. It might be best expressed in the title of Kenneth Starr's book on the O'Connor Court First Among Equals except that the title is two words too long. There is little evidence that O'Connor or her Court regards other governmental authorities as equals.