Court in Transition

Balancing Act

When she looks back on it, Tulane University professor Nancy Maveety senses a wistful quality to Justice Sandra Day O’Connor’s opinion in one of the two Ten Commandments cases decided this June.

“It reads like a parting shot,” says Maveety, who chronicled O’Connor’s career in a 1996 biography, Justice Sandra Day O’Connor: Strategist on the Supreme Court. “It was philosophical and reflective. It hit on the large themes of religion in American life.” O’Connor’s opinion in McCreary County v. American Civil Liberties Union of Kentucky, 125 S. Ct. 2722, was among the 75-year-old justice’s last, issued just four days before the announcement that she would retire from the court. As befits a valedictory, the writing sounded pensive, Maveety says, different from the justice’s usual straightforward style. An example:

“At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. … Given the history of this particular display of the Ten Commandments, the court correctly finds an establishment clause violation. … The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer.”

In a large sense, though, it was typical O’Connor. She used a favored test to weigh constitutionality—here, the notion that the state may not appear to endorse religion—with a nod to the reasonable observer. She wrapped her judicial philosophy in no nonsense writing and, as so often in the justice’s career, served it in a concurrence.

It is a style and a strategy that O’Connor has employed to advantage over her 24-year tenure on the high court, experts say. Long recognized as occupying the court’s ideological fulcrum, O’Connor has accomplished the feat of subtly, yet unmistakably, letting litigators know that the outcome of a case goes through her.

“Her role on the Supreme Court is like that of a one justice conference committee,” says law professor Thomas E. Baker of Florida International University. “In closely contested cases, she has been the balancing point.”

Fact-Based Tests

Balance has characterized O’Connor. Through her collection of balancing tests, she has urged the court to weigh competing rights or interests to arrive at whether the result tilts toward constitutionality.

O’Connor’s tests are flexible, and they depend on the facts for the outcome. Some she devised; others were plucked from previous cases or from sources such as amicus briefs, experts say. Some have succeeded in becoming law. Others keep popping up in dissents or concurrences, knocking at the door but never quite achieving the status of a holding. Nevertheless, O’Connor has wielded them to place her at the forefront of the bench. “The theory of the Rehnquist court is really ‘O’Connorism,’ ” says Stanford University law professor Kathleen M. Sullivan. “Her approach has dominated because she sets forth tests that govern future cases.”

And since O’Connor’s balancing tests are so fact-driven, they require all the more that lawyers “direct their arguments at her,” Baker says. “They see that she is going to take this case and decide on these facts.”

O’Connor’s experience with legislative give-and-take likely influences her fact-based approach. It also makes her skeptical of government power grabs. In federalism cases, for example, O’Connor discourages commandeering. Congress may offer incentives for states to abide by federal regulations, but it can’t grab the controls from the hands of state legislators. New York v. United States, 505 U.S. 144 (1992). Says Sullivan: “The sheriff shouldn’t have to take the rap for the federal government and say, ‘Congress made me do it.’ ”

Who but a former state legislator—O’Connor served in the Arizona state Senate—would be so sensitive to the idea? “She was the only person [on the Rehnquist court] who was involved in the smoke-filled back rooms,” Sullivan says.

That history also may underlie O’Connor’s method of signaling racially based gerrymandering: Oddly shaped congressional districts—those that look like a Rorschach test—should sound the alarm that those who drew the boundaries may have unconstitutionally discriminated. Shaw v. Reno, 509 U.S. 630 (1993). Like the Rorschach test itself, Baker says, “it says something about the person, not the picture.”

She also proposed a test for analyzing set asides in affirmative action cases: The purpose of strictly scrutinizing such programs is to “smoke out” racial preferences, O’Connor wrote in the watershed case, Richmond v. J.A. Croson Co., 488 U.S. 469 (1989). However, she said, “some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion.”

That nod to a potential shift in outcomes helps to explain the beauty of the balancing test, Baker says. “Strict scrutiny used to mean the government was going to lose,” he says. “Now it may be strict in theory but not in fact, so the government can prevail.”

Indeed, O’Connor wrote in the majority opinion in Grutter v. Bollinger, 539 U.S. 306 (2003), “context matters when reviewing race based governmental action under the equal protection clause.” The result: a green light for the University of Michigan law school’s admissions program.

Creation of a Standard

Perhaps the most famous some would say infamous of O’Connor’s tests is the undue-burden standard for abortion cases. In classic balancing language, the test weighs whether a regulation poses a substantial obstacle to abortion.

Undue burden made its appearance in O’Connor’s dissent in 1983’s Akron v. Akron Center for Reproductive Health, 462 U.S. 416, taken from a Reagan administration amicus, Maveety says. O’Connor nudged the test through abortion cases over the years until it became the central standard in the plurality opinion she co authored with Justices David H. Souter and Anthony M. Kennedy in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

In addition to O’Connor’s background as a state legislator, her career as a state common-law judge helped determine her style, scholars say.

“She is behaving like a good common law judge—a crafter of opinions,” Baker says. “Lawyers direct their arguments at her because they see that she is going to take the case and decide on the facts in a way that a more theorized justice won’t.”

It’s a style that has been called “judicial minimalism,” characterized by narrow holdings that limit the reach of each case, says University of Chicago law professor Cass Sunstein. The title of his 1999 book, One Case at a Time, summarizes the idea.

The effect, Sunstein has said, is that judges assert themselves by offering little justification in the opinion.

Baker puts it this way: “O’Connor has positioned herself to be influential. When you look at her balancing tests, like undue burden, there is always a quantitative aspect to it as a reasonable test that keeps the outcome in future cases in her hands. She is the ultimate balancer.”

But don’t dismiss O’Connor’s approach to deciding cases as ad hoc, Sullivan says, disagreeing with those who have criticized the justice for being too case specific. Far from it, Sullivan says, the O’Connor test is “characteristic of a broad common-law approach. It’s a clear concept.”

No Bright Lines

O’Connor’s philosophy earned her praise from lawyers and judges who appreciated fitting the facts of their cases into her balancing scheme. Yet it also has caused consternation—and outright condemnation—from judges frustrated at the lack of bright-line rules. Among those consistently exasperated by O’Connor’s style has been Justice Antonin Scalia.

Indeed, the O’Connor-Scalia dialogue has been one of the Rehnquist court’s liveliest subplots. Their disagreements go to the core philosophy of the two justices. Where O’Connor prefers the balancing test, Scalia scorns it in favor of the hard-line rule. “It goes right down to their judicial philosophy,” says professor Marci Hamilton, a former O’Connor clerk who teaches at Benjamin N. Cardozo School of Law at Yeshiva University. “O’Connor believes it is inappropriate to predecide every case, whereas Scalia views it as an obligation to try to resolve a national conflict.”

In a well-regarded 1992 article for the Harvard Law Review, Sullivan laid out the distinction between what she terms the standard—the O’Connor test comprises one—and the rule. “Ideological poles tend to attract rules,” Sullivan wrote. “Standards tend to dive for the middle and split the difference.” Baker sums it this way: a standard—“Drive at a safe speed”; a rule—“Do not exceed 55 mph.”

To Scalia, author of a 1989 law review article, “The Rule of Law as a Law of Rules,” the “scale analogy” makes no sense at all. It “is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enterprises, 486 U.S. 888 (1988).

O’Connor, on the other hand, has viewed her mission as engaging in “the hard task of judging sifting through the details.” Rosenberger v. Rector of the University of Virginia, 515 U.S. 819 (1995). She went on to explain that “when bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a grand unified theory that may turn out to be neither grand nor unified.”

That O’Connor explained that philosophy in a concurrence is little surprise to many court observers. Indeed, she has mastered the tactic “as a method of shaping the development of legal doctrine,” Maveety says.

When used to effect, a concurrence allows a justice to join the majority while proposing an alternative analysis, inching it forward over time toward a hoped-for culmination as a majority holding. “It’s the difference between merely concurring and putting yourself in a position where your watershed views become accepted,” Maveety adds.

“She used concurrences to articulate her approach in a way that influenced the law, perhaps as much as any justice in our history,” Sunstein says.

O’Connor’s concurrence in McCreary illustrates the point. Although her endorsement test never became a majority holding, she has steadfastly offered it as a way to measure constitutionality.

O’Connor so consistently proffered the endorsement idea, Maveety points out, that her concurrence in County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989), a case about Christmas and Hanukkah symbols on government property, prompted a flustered Justice Kennedy to lament that “it has never been my understanding that a concurring opinion … could take precedence over an opinion” joined by a court majority.


O’Connor’s strategy has led many to call her the classic swing justice, a term she reportedly reviles. Court scholars dislike the term almost as much.

“One implication of the swing voter is that you swing back and forth,” Maveety says. “It implies wishy-washiness.” The more applicable notion, she says, “is that yours is the mind that needs to be convinced. You have a fact based standard that is the magic formula that makes you pivotal.”

O’Connor’s method showed that she learned well from her judicial mentor, Justice Lewis F. Powell Jr. His pragmatic, fact-based opinions—such as University of California v. Bakke, 438 U.S. 265 (1978), involving affirmative action in medical school admissions—became the touchstone for lower courts.

And, as with O’Connor, Powell was noted for out-front concurrences featuring balancing tests. Powell’s concurrence in Branzburg v. Hayes, 408 U.S. 665 (1972), for example, became the guiding opinion on news reporters’ privilege:

“The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

“Powell is the contemporary master,” says Baker, who adds that it’s little surprise O’Connor emulated him. Both came to the court as practitioners, with similarly pragmatic views of the law.

So what becomes of the tradition now that O’Connor is leaving the court?

One clue may come from the companion Ten Commandments case, Van Orden v. Perry, 125 S. Ct. 2854, delivered with McCreary on the term’s last day. There, the court tipped the other way, allowing the tablets on the grounds of the Texas Capitol. It was decided 5-4, with a determining concurrence by the justice whose votes influenced the outcomes of the cases: Justice Stephen G. Breyer.

“I would say that Breyer has Powell syndrome,” Baker says. “Or he’s getting it.” Sunstein and others suggest Kennedy will pick up the ball. After all, he has long been teamed with O’Connor at the court’s center square.

But, Sunstein adds, “No one will be quite like O’Connor.”

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