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A sensible justice

O'Connor brought a pragmatic approach to the Supreme Court

By Bill Mears
CNN Washington Bureau

Supreme Court Justice Sandra Day O'Connor



Supreme Court
Sandra Day O'Connor
Justice and Rights

WASHINGTON (CNN) -- Retiring Supreme Court Justice Sandra Day O'Connor is a Westerner, a conservative and a grandmother. Each of those qualities have informed her unique and undoubtedly powerful presence in U.S. law and society.

"We all bring with us to the court or to any task we undertake, our own lifetime of experiences and background," she told CNN in a May 2003 interview. "My perceptions might be different than some of my colleagues, but at the end of the day, we ought to all be able to agree on some sensible solution to the problem."

"Sensible solutions" may best describe how O'Connor approaches thorny legal questions, and how she has carved out her important role as the pragmatic "swing vote" on the Supreme Court. A pioneer of sorts in both her upbringing and her professional career, O'Connor stood out from the moment she arrived as the first woman on the nation's highest court.

"She is arguably the most influential woman in the United States," said Edward Lazarus, author of "Closed Chamber: An Inside Account of the Supreme Court."

Third in seniority, O'Connor has, deliberately or not, become the "swing" justice, with her moderately conservative views often the deciding factor in close 5-4 votes.

She dismisses the label. "That's something the media has devised as a means of writing about the court, and I don't think that has a lot of validity," she said in a recent CNN interview.

She has been the key vote in a number of notable cases, including a 1995 case limiting affirmative action, a 2002 decision permitting public aid and vouchers to religious and parochial schools, and in several abortion-related cases, where a woman's reproductive rights were narrowly reaffirmed.

Despite criticism from conservatives, O'Connor has not backed down from her opinion that states place "no undue burden" on what she says is a fundamental right to abortion.

Her concurring opinions have established legal boundaries on several major issues, such as striking down a state-mandated "moment of silence" in schools and reducing obstacles to capital punishment.

She authored the 1989 opinion restricting minority set-asides for government contracts. But her nuanced ruling offered significant legal wiggle room, allowing some race-based preferences to correct past discrimination.

O'Connor agreed with the majority in a 1984 case that a city-sponsored nativity scene did not violate the constitutional ban on government endorsement of religion. In doing so, she proposed the "endorsement" test, which established a judicial standard to measure the limits of church-state interaction.

"What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of religion," she wrote. "It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community."

She sided with her conservative colleagues in the Bush v. Gore dispute of 2000. While some legal experts and politicians believe the ruling did not decide the election, O'Connor bluntly thought otherwise. The decision "held unconstitutional Florida's presidential election recount procedures, and thereby determined the outcome of the election," O'Connor wrote in her 2003 book, "Majesty of the Law."

O'Connor's independence was evident on several key issues, many involving limits on government power. She broke from her conservative colleagues, dissenting on a 2001 decision allowing the arrest and brief incarceration of a mother who failed to put seatbelts on her two young children, considered a misdemeanor usually punishable by a fine.

"As the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual," O'Connor wrote. "After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest. An officer's subjective motivations for making a traffic stop are not relevant considerations in determining the reasonableness of the stop."

Power of judicial philosophy

Her ability to help tip the balance on important rulings is subtly evident, but not lost on her colleagues. She is often the first justice to pose a question in court arguments, thereby quickly setting the tone for the back-and-forth debate to follow.

"Often you'll see in oral argument that Justice Kennedy and Justice O'Connor are actually being courted by the other justices," said Andrew McBride, a former O'Connor clerk.

Her power lies in her judicial philosophy. While O'Connor agrees with the conservative majority most of the time, she frequently writes her own, more narrow concurrences. By moderating the Rehnquist Court's impact on issues like abortion and affirmative action, O'Connor has been a source of frustration to Republicans.

Her reputation as an independent-thinking moderate has drawn criticism from both the right and the left. She has been accused of watching how other justices vote in closed-door conference before placing herself in the "swing-vote" center, tipping the balance to her judicial philosophy. Former clerks and other colleagues reject that assertion.

"Her view of judicial restraint leads her to produce more moderate, limited and fact-bound, detailed opinions," said Carolyn Frantz, a former O'Connor clerk and a University of Chicago law professor.

Some legal scholars have noted her rulings lack any overarching ideology -- what she refers to as a "Grand Unified Theory" -- that would provide a judicial road map on future laws and cases.

Colleagues contend O'Connor takes a cautious, limited approach to constitutional precedent.

"She looks simply at the law, doing as little as she can to satisfy the law, trying to get that right," Frantz said.

That judicial minimalism has its critics.

"She doesn't give much guidance to other courts in her rulings, there's a lack of consistency, distinctiveness," said Lazarus, who also clerked at the Supreme Court. "Often it seems her opinions are too narrow, reflecting only how it strikes just Justice O'Connor, what she personally thinks."

Despite that reputation, O'Connor has publicly asked tough questions about the broader impact laws have on society, involving cases past and future, including the government's response to the war on terror.

Shortly after the September 11, 2001, attacks, she spoke about how the country would have to balance national security with long-established individual rights and protections.

"Can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals?" O'Connor asked. "And where do we draw the line between them?"

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