Court in Transition

Balancing Act

Her Constitutional Tests and Strategic Concurrences Helped Make Sandra Day O’Connor a Force From the Center

Posted Sep 29, 2005 2:11 AM CDT
By Richard Brust, Stephanie Francis Ward, James Podgers

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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.

Label-Conscious

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.”

Sidebar

FOLLOWING THE FIRST WOMAN

To Many, 1981 Saw One Huge Step for Sandra Day O’Connor, One Giant Leap for Women Lawyers

In 1981, Pac-Man fever was sweeping the country, the disease that would come to be known as AIDS was recognized, and people were talking about an Arizona state appel­late judge named Sandra Day O’Connor.

The woman who had been raised on an Arizona ranch before becoming a state legislator and then a judge was now the first woman ever nominated to the U.S. Supreme Court. “The media and the public wanted to know everything about her; they scrutinized everything she did,” says Ruth V. McGregor, now chief justice of the Arizona Supreme Court.

The Judiciary Committee hearings on O’Connor’s nomination were the first to be televised, and supporters were glued to their television sets. “It was so intense,” McGregor recalls. “There was just this kind of electricity in the air.”

During his 1980 presidential campaign, Ronald Reagan said that he would nominate a woman to the U.S. Supreme Court, if the opportunity arose. It did; Justice Potter Stewart retired in July 1981.

Many women’s rights organizations wanted to make sure the president kept his promise. “There was a lot of pressure” from groups like the National Association of Women Judges and the National Organization for Women, says Lynn Hecht Schafran, director of the National Judicial Education Program.

President Carter had already put some pieces in place. Appointing more women and people of color to the bench was a priority for him, Schafran says, but the lists of recommended nominees that senators sent to his administration contained few members of either group.

Women from various women’s rights organizations asked Carter’s attorney general, Griffin Bell, whether a panel of women lawyers could have the same opportunities as the ABA and the National Bar Association to vet potential judicial nominees. The administration agreed, and the women’s groups formed the Federation of Women Lawyers Judicial Screening Panel.

“The ABA always used the standard measures of ability, integrity and judicial temperament,” says Schafran, the panel’s founding director. “We said there was a missing criterion, which was a demonstrated commitment to equal justice under the law.”

Finding the Right Nominee

Reagan wanted a female Supreme Court nominee who shared his political views. The pool at that time was small, Schafran says. According to media reports, Reagan considered another female judge besides O’Connor—Mildred Lillie, a California appellate judge who had also been considered by the Nixon administration to replace John Marshall Harlan.

McGregor, who had practiced law with O’Connor’s husband, John, attended a July 4 barbecue with the couple soon after the president interviewed O’Connor. But no one—including, apparently, O’Connor—had much of an inkling that she would get the nod. “I don’t remember there being much talk about it,” says McGregor, who went on to be one of O’Connor’s first Supreme Court clerks. “Everybody kind of assumed that nothing was going to happen.”

The nomination was announced the following month. Helen Perry Grimwood, president of the State Bar of Arizona, was then a clerk on the Arizona Court of Appeals for a judge who was O’Connor’s colleague.

“I’m pretty sure I heard about her nomination at the courthouse. It was just blockbuster news,” says Grimwood, a Phoenix litigator. “By the end of the day, the press from all over the nation was all over the courthouse to find out about this Sandra Day O’Connor.” Because O’Connor was a Reagan choice, her nomination raised concerns among some feminists, says Stanford University law professor Deborah L. Rhode. But the country had little experience with female judges and to a certain extent didn’t know what to expect, Rhode says.

“I think there was an assumption that women in general would be more sympathetic on women’s issues, and in some ways that’s true, but not across the board,” recalls Rhode, who was just beginning her Stanford career when O’Connor was named. The female students, she says, were more excited about the prospect of a female justice than were their male counterparts.

Noting that O’Connor graduated from Stanford Law School in 1952, she says, “I always remind students that although she graduated at the top of her class, the only job she was offered was that of a legal stenographer.”

The confirmation hearings got under way Sept. 9, and Schafran was among the women who testified on O’Connor’s behalf. Women appointees for any position—as well as women who testified on behalf of appointees—were then treated poorly by the Senate, according to Schafran.

“There had been a whole lot of nonsense over the years, and what we had seen was that very often these hearings were very disrespectful to women,” she says. The late Strom Thurmond, then chairman of the Senate Judiciary Committee, was a particular concern. The South Carolina Republican had asked women who testified whether they were married, Schafran says, and he often commented on their appearance.

That concerned women’s rights organizations as well as members of the ABA Standing Committee on Federal Judiciary, she adds. They feared Thurmond would make a mockery out of O’Connor’s nomination.

So Schafran and other women testifying asked Thurmond’s chief of staff, Duke Short, to keep the senator in line during the hearings. Short, known as “the second senator,” whispered something in Thurmond’s ear before each woman got up to testify. After Schafran spoke, Thurmond commented that she “was the most astute lawyer in New York.” That brought some laughter. At the end of the day, Schafran learned Short was telling Thurmond nice things to say about each woman.

Watching History

Grimwood watched the hearings on television. “Our local PBS station decided to do gavel-to-gavel coverage, and when they went into that process, I stayed up every night. We were riveted,” she says. “I’m sure most of the women in my law school class were riveted—it was unbelievably exciting.”

McGregor also tuned in.

“The first morning, it seemed to me that she was a little bit nervous. My prediction was that by the time the afternoon was over, she would be educating and lecturing the committee,” McGregor says. “And she did. She always was able to take charge of situations.”

On Sept. 21, the Senate confirmed O’Connor’s appointment. The woman who became a role model for female lawyers then emulated another justice who had broken barriers. Rhode, who was a 1978 clerk for Justice Thurgood Marshall, says O’Connor looked to him for guidance on how justices should conduct themselves off the bench. “Marshall talked to the people who waited on you in the cafeteria and knew the names of the people who worked the elevator,” Rhode says. “So did she. She brought a tone of civility and decorum to the court that was extremely valuable.”

Grimwood mentions a letter O’Connor received shortly after she was appointed to the court. The justice shared it with her in the 1990s, when the Arizona Women Lawyers Association was trying to get a woman appointed to the state supreme court. “It was written by a young woman in the Midwest who wrote how exhilarating it was just to know that a woman who is talented, works hard and applies herself can actually aspire to being on the highest court in the U.S.,” Grimwood says.

A woman had not been nominated to the Arizona Supreme Court since 1974, and the bar association used the letter when speaking with the press. Eventually, McGregor got the appointment.

“We now know it can happen, and it makes a big difference to all of us,” Grimwood says. “It’s really tremendously important to have women in these positions, and it matters in ways that people can’t even envision.”

WHAT RETIREMENT?

Sandra Day O’Connor Will Continue Playing a Role in Key ABA Initiatives

Even amid the luster of the ABA’s leadership directory, the name still jumps out.

It’s there on page 3 of the 2004-2005 edition of the directory known as the Redbook: Sandra Day O’Connor, honorary chair of the ABA Commission on the American Jury. O’Connor also is on page 44: advisory committee member for the Standing Committee on the Law Library of Congress. Again on page 53: executive board member for the Central European and Eurasian Law Initiative. And on page 249: board member for the ABA Museum of Law.

O’Connor also is listed in ABA annals as a recipient of two of the association’s highest awards: the ABA Medal (1997) and the Margaret Brent Award from the Commission on Women in the Profession (2000).

While it may be that a U.S. Supreme Court justice bestows instant credibility on a project simply by lending his or her name to it, ABA leaders who have worked with O’Connor say her contributions to ABA endeavors go far beyond the ceremonial.

“Everything we asked her to do, she did,” says Robert J. Grey Jr. of Richmond, Va., who invited O’Connor to serve as honorary chair of the Commission on the American Jury that he created upon becoming ABA president in August 2004. “Her efforts, her work, her commitment inspire everybody else,” he says. “She’s a spiritual leader of the jury initiative.”

The same goes for CEELI’s efforts to support legal systems in emerging democracies across central Europe and into parts of Asia, says R. William Ide III of Atlanta, who chairs the initiative’s executive board. “Justice O’Connor has been an incredible force” in building the rule of law abroad, says Ide, a past ABA president.

As a board member for the ABA Museum of Law, O’Connor actively participated in discussions about the museum’s role in publishing America’s Lawyer-Presidents in 2004 and wrote the book’s foreword, says board president Darrell E. Jordan of Dallas.

As far as the ABA is concerned, O’Connor’s retirement from the Supreme Court, which she announced July 1, will not be a quiet one. She is expected to re-up as a member of the CEELI board and add a couple of new projects to her ABA resumé.

In August, incoming ABA President Michael S. Greco of Boston announced that O’Connor will serve as honorary co-chair of the Commission on Civic Education and the Separation of Powers. (Former U.S. Sen. Bill Bradley of New Jersey will be the other honorary co-chair.)

O’Connor also will give the keynote address at the International Rule of Law Symposium being convened by the ABA on Nov. 9 and 10 in Washington, D.C., Ide says.

Road Trips

Addressing the symposium is a logical adjunct to O’Connor’s work with CEELI, Ide says. Primarily through the efforts of volunteer lawyers, CEELI has contributed significantly to efforts to support the growth of legal structures in nations once dominated by the Soviet Union.

Homer E. Moyer Jr., a D.C. lawyer who founded CEELI in 1990 with Talbot “Sandy” D’Alemberte of Miami (who later served as ABA president), says “it obviously struck a nerve” when he asked her to be a charter member of the CEELI board. In the immediate aftermath of the fall of the Berlin Wall, “she recognized this was a critical time and a unique window of time” for American lawyers to assist democratic governments emerging from the debris of fallen communist regimes.

O’Connor has traveled extensively to CEELI meetings overseas. “She knew people’s names in advance, she knew the substance of their work and she knew their human sides, too,” D’Alemberte says. CEELI volunteers’ morale has always been high, he says, “partly because someone like her took an interest in what they were doing.”

In 2000, O’Connor gave the keynote address at ceremonies honoring CEELI during the London sessions of the ABA Annual Meeting. The justice also did a considerable amount of work in the field for the jury commission, says Judith S. Kaye, the chief judge of the New York Court of Appeals, who served as one of the co-chairs of the commission. At one event, for instance, O’Connor met with prospective jurors at the District of Columbia Superior Court. “She was so great, in terms of enthusiasm and knowledge,” Kaye says. “The jurors were starry eyed.”

That reaction is easy to understand, Grey says. Recalling his own meeting with O’Connor about the jury initiative, Grey says, “It’s awe-inspiring to sit there with a Supreme Court justice and talk to her about a meaningful issue, and to leave knowing that she will help your efforts.”

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