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O'Connor Court?

In a symposium in Commentary (October 2003) entitled "Has the Supreme Court Gone Too Far?" George Weigel, a senior fellow at the Ethics and Public Policy Center attacked several of the Court's recent decisions, including the two affirmative action cases from the University of Michigan. "These decisions make little constitutional or political-philosophical sense," he charged. "In fact, they are unhappy reminders that, on these questions, the Constitution now means whatever Justice O'Connor decides it means at any given moment in her perusal of the signs of the times."

On the Supreme Court the chief justice is not, merely by his position, the dominant figure, although in the past some chiefs have in fact dominated the Court both politically and intellectually.  The chief's power is primarily administrative, and his is the responsibility for making sure that the Court's machinery for deciding cases runs smoothly.  He has one vote, the same as the associate justices, and William Rehnquist, while often in the majority, can also be found on the losing side of many cases.  The dominance of an associate justice is not a new phenomenon.  Stephen Field's ideas dominated the Court for the latter part of the nineteenth century. Louis D. Brandeis easily had the greatest jurisprudential effect of any member of the Taft Court, while William Brennan, Jr., guided and shaped the major decisions of the Warren era.

After the fiasco of Warren Burger's tenure, when the Court was plagued with internal dissension, administrative indecision, and lack of leadership, Rehnquist's first few years as chief justice were welcomed by his colleagues.  He had a sure hand for the administrative work, and got on well even with those justices whose opinions differed considerably from his own, such as Thurgood Marshall; the two of them would play practical jokes on incoming law clerks.  Moreover, he won praise from the other justices for keeping the calendar up to date, reducing the number of full cases heard each year, and for fairly distributing assignments.  Although he could never command more than four or five votes for some of his ideas, he did manage to move the Court to a fairly consistent stance in favor of states' rights and federalism as opposed to the relatively unchecked federal power that prior courts had routinely approved of under the Commerce Clause.

Moreover, he has been a strong protector of the Court's independence and institutional prerogatives. Four years ago, in a case reviewing a law in which Congress had attempted to overturn Miranda v. Arizona, Rehnquist, who had criticized that opinion for years, wrote that Miranda was constitutional law, and the Court -- not the Congress -- would determine what the Constitution meant. Earlier he had helped engineer the opinion in City of Boerne v. Flores, in which the Court, speaking through Justice Kennedy, had invalidated the Religious Freedom Restoration Act, in which Congress had also tried to overturn a Court decision.  Once again the Court declared that it, and not the legislative branch, would interpret the Constitution.

This last Term, however, found the chief justice strangely silent, especially in the Court's opinions on the war against terrorism.  In 1998 Rehnquist had published All the Laws but One, a history of civil liberties in wartime, and whatever the Court's response to the Bush administration's policies, the chief justice logically would be the one to deliver it. But the Guantánamo case (see below) found him joining Justice Scalia's dissent, while Justice Stevens spoke for the 6-3 majority.  In the Hamdi case, Rehnquist was among the eight justices who found the detention improper, but again his was a silent voice, while Justice O'Connor spoke for the Court.

Rehnquist will turn 80 in October, and while suffering from some physical impediments is as sharp as ever intellectually.  He recently announced that he was hiring law clerks for the October 2005 Term, and seems bent on equaling the record of Chief Justice John Marshall (34 years) if not that of William O. Douglas (36 years).  But as Linda Greenhouse of the New York Times suggests, "it appears that while he has stood still, the Court's center of gravity has moved away from him." This past Term saw the justices decide eighteen cases by 5-4 majorities, and of these Rehnquist was in the majority only eight times.  Two years ago he stood with the majority in fifteen of the 21 cases decided 5-4, and last year he was on the winning side half the time, in seven of fourteen cases.  Moreover, he was on the losing side in some of the Court's biggest decisions, such as those upholding affirmative action and gay rights.

This year Rehnquist also found himself on the losing side in most major cases including campaign finance, the Blakely decision, and the Court's major federalism case, Tennessee v. Lane (all discussed below).  Of the 73 cases with full opinions decided this Term, Chief Justice Rehnquist wrote the majority opinion in only two of the major cases, one the Padilla decision (one of the trio of terrorism cases, which the Court dismissed on a technicality) and the other an important church-state case, Locke v. Davey.

The great issue in the Court these days may no longer be that of first principles, which Rehnquist strove so mightily to achieve in the 1980s and 1990s.  The conservative majority on the Court is in basic agreement on many of these issues, but in complete disarray over how far to push them.  Thus, it becomes a matter of prudence in considering the consequences of carrying any one decision to its next logical conclusion.

For example, in Locke v. Davey, the Court pondered whether a state that underwrites scholarships for secular studies must also give grants to students who plan to study for the ministry. Lawyers for the divinity student built their argument on Rehnquist's opinion two years ago in the school voucher case from Ohio. The Court now had to decide whether if vouchers were permissible, they were also constitutionally required to go to religious programs on an equal basis when the state made them available. The future of the school choice movement rested on this decision, but the Court, speaking through Rehnquist, backed off from the logic of its earlier case. States had a choice to make, and they were free to make it as they wished.  Justices Scalia and Thomas, the two most doctrinaire members of the Court, issued stinging dissents, but pragmatism ruled.

And when it comes to pragmatism, the undoubted leader of the Court is Sandra Day O'Connor, who cast a dissenting vote in only five cases all year, far fewer than any other justice. Of the eighteen 5-4 decisions, she was in the majority in 13 of those cases, again more than any other member of the Court. She showed that she is a master in forming strategic alliances, probably the most skilled justice in this area since William Brennan.  She wrote an unusual joint opinion with Justice John Paul Stevens in upholding the key parts of the campaign finance law, and in the federalism case, Stevens tailored his majority opinion to meet Justice O'Connor's views. As Charles Lane of the Washington Post notes, O'Connor is considered the most powerful woman in America.  Hers is "the power of the persuadable mind -- of a pragmatic sensibility in possession of a strategic asset: her vote." She is the key centrist on a polarized bench, and she votes -- and thus moves the Court -- by a credo she voiced three years ago in a speech to the Nebraska Bar Association: "The rule of law must . . . be flexible enough to adapt to different circumstances." For critics, however, this means what George Weigel charged, that the rule of law as practice by this nation's highest court is so flexible that it does not mean much more than the rule of Sandra Day O'Connor.

O'Connor, while clearly a conservative, is also the bane of the right wing of the Republican Party, who believes that she betrayed the ideals of the man who placed her on the Court, Ronald Reagan. They do not want pragmatism but ideological purity, and their heroes are Scalia, Thomas, and often Rehnquist.  If O'Connor only voted with them, then the Court would not be off making bad decisions.  But the Court, like the nation, is highly polarized over a number of issues, including abortion, the death penalty, gay rights, and affirmative action, to name just a few.  Moreover there is a division in judicial philosophy, with the moderate-to-liberal bloc of Stevens, Souter, Ginsburg and Breyer favoring a larger role for the judiciary in defining and defending constitutional rights, while Rehnquist, Scalia and Thomas espouse judicial restraint, meaning that they would often leave such issues, especially when policy is concerned, to the elected branches of the state and national governments.

O'Connor is the swing vote, along with Anthony Kennedy, but O'Connor is more likely than Kennedy to join the moderate/liberal groups. There is also a big difference in how the two make their decisions. When Kennedy switches sides, he does so in a grand manner, such as in the gay rights case, where he wrote a strong denunciation of prejudice against homosexuals, an approach that invalidated sodomy laws across the country. O'Connor joined in the result, but wrote a separate opinion relying on a more limited equal-treatment argument.  As Professor Cass Sunstein notes, this minimalist position is characteristic of her approach to constitutional issues.  It amounts to a reluctance to make any more law than absolutely necessary to decide the case at the bar.  Thus her vote may decide big cases without necessarily settling the big issues behind those cases

This while others may be willing to make broad statements, she is not.  Perhaps more than any other person on the Court she understands that when the Court enunciates a principle, it is not the end of the Court's work but just the beginning. Brown v. Board was the great statement that declared Jim Crow laws unconstitutional; but it took dozens of additional cases to dismantle the regime of state-sponsored discrimination. She believes law ought to develop incrementally, and the Court needs to guard against big steps that, once the implications are known, it may have to retrace.  Better to anticipate what consequences will be, and when necessary, hedge the great principle enough so that the law and the country can accommodate the results.

Richard Lazarus, a professor at Georgetown University Law School who organizes moot courts for lawyers preparing to argue before the high court, and who also appears there himself, tells participants in his seminar that they ignore O'Connor's pivotal role at their peril. Many lawyers concede that they frame their oral arguments and briefs with her in mind. Lazarus says that an advocate must treat all justices with respect, but "when Justice O'Connor asks a question at oral argument, every advocate would be well advised to answer in full, and pause and look at her, because nothing is more important to you than making sure you've addressed her concerns. With the others, it may not make a difference."

But despite the power that her pragmatism exercises, there are some who wish that she -- and the Court -- would reach finality in some areas. Justice John Paul Stevens charged the Court with failing to do its duty when it invoked procedural reasons to dismiss the case of a U.S. citizen, Jose Padilla, who had challenged his indefinite military detention by the Bush administration. The same majority that had stepped in to decide the 2000 election now seemed incapable of reaching a decision in major areas.

It sent some of the security cases back to lower courts for a rehearing, providing only a modicum of guidance. It permitted the phrase "under God" to remain in the Pledge of Allegiance, without deciding the basic issue of whether it violated the Establishment Clause. It held that an effort by Congress to protect children from on-line pornography violated the First Amendment, but instead of striking it down outright sent it back to the lower courts for a new trial on the factual issues.

Even when the Court seemingly settled a matter, it left doors open. Police may not deliberately question suspects without telling them their rights, and then using that coerced confession to set up a second, and Mirandized, interrogation.  But Justice Kennedy said that while he agreed with the opinion in this case, he would not make it a rule in all future cases.

While the Court upheld the right of aliens to sue against human rights abusers in U.S. courts, Justice Souter nonetheless warned lower court judges not to get in the way of the executive branch's foreign policy prerogatives.

Even the seemingly decisive opinion in the campaign finance case is less than it appears. Decided by a 5-4 vote, the case dealt with a facial challenge to the law, that is, a challenge to what the plaintiffs believe will be violations of their rights if the law is put into effect.  None of the plaintiffs could make out a good case that they themselves would be harmed, but the Court will no doubt face a far more compelling First Amendment argument when it has to hear an "as applied" challenge where the First Amendment has clearly been violated.

This group of justices is now going into tenth year together, the longest "natural court" since the 1820s.  It is clear to all that the dynamics on the Court have changed. Polarized it remains, with the steering mechanism more often than not in the hands of Sandra Day O'Connor. In many of the cases on next Term's docket, it is more than likely that the results will reflect her minimalism and jurisprudence



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