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Justice O'Connor, a 'sensible' jurist

High court's first woman brought independent voice to the bench

From Bill Mears
CNN Washington Bureau

Justice Sandra Day O'Connor was viewed as the "swing justice" of the court, a characterization she rejects.

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WASHINGTON (CNN) -- Sandra Day O'Connor is a woman, a Westerner, a conservative, a grandmother, and a retiring Supreme Court justice. They all inform her unique and undoubtedly powerful presence in American law and society.

The 75-year-old jurist likely participated in her final oral argument Wednesday and after nearly a quarter-century of high-profile service, her time on the bench is drawing to a close. Her life will soon be spent largely taking care of her husband, who suffers from Alzheimer's disease. She'll also continue to write, give speeches, teach, and participate in legal seminars.

"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 recent 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 the jurist approached thorny legal questions, and how she carved out her important role as the Supreme Court's pragmatic "swing vote" (a phrase she rejects). A pioneer of sorts in both her upbringing in the high desert of the Southwest and throughout her professional career, O'Connor has 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," says Edward Lazarus, author of "Closed Chamber: An Inside Account of the Supreme Court." "Her power was hard-earned and completely of her her own making."

A subtle power

O'Connor's power to help tip the balance on important rulings and thereby shape the law and larger society is subtly evident, but not lost on her colleagues. "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, an O'Connor clerk in 1988. She was often the first justice to pose a question in important court arguments, thereby quickly setting the tone for the back-and-forth debate to follow.

By moderating the Rehnquist court's impact on issues like abortion and affirmative action, O'Connor was long a source of frustration to some Republicans. Her power lay in her judicial philosophy: while O'Connor agreed with the conservative majority most of the time, she frequently wrote her own, more narrow concurrences. That often had the effect of blunting a ruling's impact. "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.

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

Some legal scholars also say her rulings lack any over-arching ideology, or a "Grand Unified Theory" to use her phrase, that would provide a judicial roadmap on future laws and cases.

Colleagues contend O'Connor was guided more often than not by 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," said Frantz.

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 legal analyst Lazarus, himself a former Supreme Court clerk. "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 in public remarks 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?"

A Woman of the West

As lovingly recalled in her recent memoir, "The Lazy B," O'Connor grew up on nearly 200,000 acres of rural Arizona ranchland, 25 miles from the nearest town, living without running water or electricity until she was seven. By then she was roping, riding, and repairing fences with the cowboys, and she knew how to shoot a gun and steer a pickup. She grew up possessed of a strong will, self-reliance, and ambition.

Law school found her in the same 1952 Stanford Law School class as fellow justice William Rehnquist. He finished first in their class of 102, she third.

But then, the reality of being a woman in the world of law set in. Only one firm would hire her, and it wanted O'Connor as a legal secretary. She eventually found her way, and her calling, by becoming a deputy county attorney in California. The job "influenced the balance of my life," she recalled, "because it demonstrated how much I did enjoy public service."

Her career has been varied: a civilian lawyer for the U.S. Army in Germany; founder with her husband of their own law firm; assistant state attorney general in Arizona; state senator, eventually becoming the body's majority leader; and eventually election to a state judgeship and later Arizona's Court of Appeals. She also passed up a chance to run for governor in 1978.

Despite her successes, she had very little national profile. O'Connor and the nation were shocked when President Reagan chose her in July 1981 to fill a high court vacancy, fulfilling a campaign pledge to nominate a woman. Mr. Reagan described her at the time as "truly a person for all seasons, possessing qualities of temperament, fairness, intellectual capacity and devotion to public good."

The 'swing' justice

O'Connor has, deliberately or not, become the well-known "swing" justice, her moderately conservative views often the deciding factor in close 5-4 votes. She dismissed the label, telling CNN, "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."

The list of cases where her vote made the difference is long and notable: limiting affirmative action, permitting public aid and vouchers to religious and parochial schools, and several abortion-related cases, where a woman's reproductive rights were narrowly re-affirmed. Despite criticism from conservatives, O'Connor has not backed down from her insistence that states place "no undue burden" on the fundamental right to abortion.

Her concurrences established legal boundaries on several major issues, such as a ruling that struck down a state-mandated "moment of silence" in schools, and others that reduced obstacles to capital punishment. She also wrote the 1989 opinion restricting minority set-asides for government contracts. But her nuanced ruling in that case offered significant legal wiggle room, allowing such race-based preferences to correct past discrimination.

In Lynch v. Donnelly (1984), O'Connor agreed with the majority that a city-sponsored nativity scene did not violate the constitutional ban on government support 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 more conservative colleagues in the Bush v. Gore dispute of 2000. While some legal experts and politicians believe that ruling did not actually decide the election, O'Connor bluntly states otherwise. In her new book, "Majesty of the Law," she wrote that the decision "held unconstitutional Florida's presidential election recount procedures, and thereby determined the outcome of the election."

O'Connor's independence was evident on several key issues, many involving limits on government power. In Atwater v. City of Lago Vista (2001), she broke from her conservative colleagues, dissenting on a ruling 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," wrote O'Connor. "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."

'A great role model'

In court, O'Connor's demeanor is serious, studied, her questions spare and pointed on the practical effect of laws. This exchange from the 2000 Bush v. Gore Florida ballot recount is typical: "Isn't there a big red flag out there [saying] 'watch out'?" she asked Gore's lawyer about whether the Florida Supreme Court usurped the role of the state Legislature when it ordered a new recount.

Privately, friends and colleagues all say O'Connor was fun to be around. "She was a great role model both personally and professionally," said Carolyn Frantz. "She showed me the importance on how to balance all aspects of life. She expected us to work hard, but also cared about us. When I would be there late at night, she might come in and say, 'What are you doing here? You really ought to go home.' "

O'Connor was known for her intensity, her desire to be in control, and as a stickler for detail.

Colleagues fondly recall a reunion two years ago in Arizona of her former clerks, where O'Connor's people skills shined: She remembered all the names of spouses and children of clerks from years past. For them, she has organized potluck suppers, ski outings, mandatory trips to museums, and musical jam sessions in her chambers with friends and court employees.

Her toughness and her dry, Western wit were on display when O'Connor was diagnosed in 1988 with breast cancer. She was back on the bench within weeks after treatment, and recalled years later, "The worst was my public visibility, frankly. There was constant media converge: 'How does she look?' 'When is she gonna step down and give the president another vacancy on the court?' 'You know, she looks pale to me, I don't give her six months....' "

O'Connor has not only survived, but also thrived in life and the law. In a recent book, O'Connor writes an open letter to her granddaughter, Courtney, telling her, "A nation's success or failure in achieving democracy is judged in part by how well it responds to those at the bottom and the margins of the social order... The very problems that democratic change brings -- social tension, heightened expectations, political unrest -- are also strengths. Discord is a sign of progress afoot; unease is an indication that a society has let go of what it knows and is working out something better and new."

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