Sandra Day O'Connor

It's been a long day of perfunctory paeans to Sandra Day O'Connor's many virtues.  Some corners named her prudence and moderation, smarter corners lauded her "mainstream conservatism", but few said much about her.  So before we all move to the looming battle for her seat, it's probably worth listening to Ogged and talking a bit who she is and what made her important (full disclosure: the biography aspects are taken from wikipedia and much of the judicial analysis comes from Rehnquist Justice):

O'Connor's a Texan, but she spent her childhood on a cattle ranch in Arizona.  From there, she nabbed a B.A in economics from Stanford, and continued on in their law school.  She graduated in two years, rather than the three favored by most mortals.  Third in her class, she came in only two spots behind the valedictorian, one William Rehnquist.  Not a bad record (and one beautifully retold in Dahlia Lithwick's article on O'Connor's many firsts).

Bad time, however, to be a female lawyer in America.  Despite her killer academic performance, no firm in California would hire her on as a lawyer (though one enthusiastically offered her the position of secretary).  Instead, she went into public service, becoming  Deputy County Attorney for San Mateo, CA and Assistant Attorney General of Arizona.  From there, she was appointed to the Arizona state senate, won reelection twice, and became the first woman to serve as senate majority leader in any state.  In 1975 she was elected judge of Maricopa County, then appointed to the Arizona Court of Appeals, and finally to the Supreme Court, fulfilling Ronald Reagan's campaign pledge to nominate the first woman to the body.

O'Connor wasn't seen as particularly ideological until late-2000, when her behavior on election night was leaked and her crucial ruling in Bush v. Gore confirmed suspicions.  None of this, however, should have been particularly unexpected.  Momentarily ignoring the long history of Republican activism that brought her first to Barry Goldwater's attention and then to Ronald Reagan's, O'Connor's role on the court has been that of conservative accomodationist; she's helped move the court to the right, but simultaneously moderated the lurch.

O'Connor's instincts as a compromiser were, at first, chalked up to her gender.  This was supposed to be feminine jurisprudence.  That's probably not the best lens.  O'Connor was a political animal.  She was heavily active in Arizona's Republican party, and a much celebrated legislator in the State's Senate.  Her approach to the law exults in those elements; her swing vote is necessary (save when Kennedy pivots, or the rare occasion when another Justice breaks character) to pass majority rulings, and thus she uses it to force compromise ruling that veer towards her liking (indeed, she's second only to Rehnquist in the number of opinions she;s authored). In this way, she's as much strategist as jurist. 

Why, though, would she need to compromise at all?  Holding the crucial vote, she could've forced the Court far to the right.  Here too her time as legislator proves helpful.  As Senate leader, she had a centrist streak, supporting the removal of gender discrimination from state laws, liberalization of welfare programs, bilingual education, and ratification of the Equal Rights Amendment.  Looking back, the peculiar brand of conservative moderation she practiced on the court was predictable.

Moreover, she publicly eschewed a strong conservative judicial philosophy.  During her confirmation hearings, O'Connor said her approach would be more legislative than legal, her decisions practical, atheoretical, fact-based and context-sensitive.  She's not much for hard rules, famously saying that "the impulse may be for bright line rules, but such rules may sacrifice one legitimate claim for entitlement for another in the name of simplicity."  Instead, she likes balancing tests, which are more malleable, less determinative.

Nevertheless, it's fallacy to classify her as nonideological.  In tie-breaking votes (5-4 or 4-3 majorities), she went with the conservative majority (Rehnquist, Scalia, Thomas, and Kennedy) 187 times, dissenting on only 29 occasions.  Liberal majorities, however, only got the pleasure of her cooperative company 40 times.  She dissented from them 78 times (to get an idea of the general tilt of the court, of the 334 cases decided by one-vote majorities during the Rehnquist Court, 216 of them went to the conservatives).  So while not a hardline conservative, she certainly stays in the fold.

While O'Connor's not associated with a particular judicial framework, she is linked to a variety of issues and cases where her innovations were codified into court policy.  Foremost among these was, of course, abortion.  Contrary to popular belief, O'Connor wasn't, and isn't, a full-throated defender of choice.  Indeed, her position has at once encroached on the right while simultaneously protecting it from full negation.  In her dissent on Akron, O'Connor blasted both the trimester framework, which held that the state had no compelling interest before the end of the first time (meaning they couldn't touch a woman's right to choose) and the reigning interpretation of Roe, which she argued was being seen as an absolute right to an abortion when the real point was the right's limited nature.

In Webster, O'Connor agreed with the conservative bloc that the state's demand for viability testing was constitutional, but denied that they were inconsistent with Roe.  Instead, she argued that Roe should really be seen to warn against placing an "undue burden" on the right to have an abortion.  Had she decided the rule was constitutional and in conflict with Roe, the case, which was decided 5-4, would've overturned the earlier decision, and with it the right to an abortion. 

When the Court took on Casey, most saw it as a signal that Roe had little time left.  They were going to overturn it.  But O'Connor, in a markedly impressive bit of coalition building, convinced Kennedy and Souter to join with her and the "undue burden" interpretation she favored, even persuading them to sign onto an unusual, jointly-written opinion.  Thus, while Roe was weakened a bit, O'Connor created a centrist proposal that gave Roe a clear, 6-3 majority in the Court.  However, her test, that an abortion regulation constituted an undue burden only if it "has the purpose or effect of placing a substantial obstacle in the path of a women seeking an abortion of a nonviable fetus", opened the door to all manner of regulating laws -- substantial obstacle isn't the most well-defined term in the history of jurisprudence.  It was simultaneously a win and setback for both sides of the debate.  Conservatives could do more to limit the right, but they could not do away with it.

Abortion is probably the best fitting nutshell you'll find for O'Connor.  She preserved the right while offering partial concessions to conservatives.  She ended a bright line rule and replaced it with a vague and problematic test.  in short, she let the Court swerve right while moderating how sharply it turned, and did so by reformulating the the answer so as to attract centrist support.  In short, she legislated the issue out, giving everyone something but nobody much, and standing against radical change. 

The one issue on which O'Connor seems unwilling to compromise is federalism.  Whether it's driven by base conservative philosophy or the natural conclusions of an oft-rolled over state legislator, on this issue, she's an activist.  In Garrett, she held that the states have Eleventh Amendment immunity from lawsuits for damages under the Americans With Disabilities Act.  She made the same decision in Kimel, arguing that the Eleventh Amendment provides the state with immunity from suits filed under the Age Discrimination in Employment Act, even when operating under the section 5 enforcement power of the Fourteenth Amendment.  No tests here, only bright lines. 

What we lose with O'Connor's retirement isn't a force for liberalism, but a check on conservatism.  O'Connor is part of the dominant court majority, and from there she can write the opinions that can attract the support to soften her fellow Republicans' judicial preferences.  Save on federalism, she's served as a valuable buffer between Scalia's imagination and our reality, though nowhere so much as in her reformulation of Roe.  More than that, though, we lose an instinctual politician on a court that has too few of them. 

When Clinton was looking to appoint, his preferences veered towards those who'd held office, candidates who's understand compromise and moderation.  But Bruce Babbit proved radioactive and Mario Cuomo affirmed his reputation for soaring indecision, so Clinton never got to appoint his preferred nominees.  O'Connor is a conservative version of what Clinton wanted, an ideologue, to be sure, but one able to step outside her philosophy and get on with the messy business of consensus-building and interest-balancing.  But now she's leaving.  And whatever the level of conservatism in Bush's nominee, it's a safe bet they won't possess the same skills O'Connor had.  And that's a shame.  The Court has enough cocksure theorists, a few more cautious compromisers would be a nice addition.