O’Connor honorable, frustrating on bench

CNJ staff

She made history as the first woman appointed to the U.S. Supreme Court — by Ronald Reagan in 1981 — and then proceeded to flummox conservatives and liberals alike as she became what the pundits called the “swing vote” on issues with ideological ramifications.

It might be more accurate to say that Sandra Day O’Connor was modest in reaching for universal principles and especially attentive to the facts of the case before her. She had great — sometimes too great — respect for the court’s precedents.

As Erwin Chemerinsky, who teaches law at Duke, said, “she was the center of the court, in several senses, during a time of great polarization.”

Although she was the key vote in a number of significant cases, she tended to write narrow opinions tailored to the facts before the court and with only limited application as a precedent for future decisions.

There’s a certain becoming judicial temperament there.

Although people involved in cases that get to the Supreme Court tend to become names in musty law books to those who study such matters, they are flesh-and-blood people.

Justice O’Connor treated the facts and circumstances of cases as particular rather than as platforms for broad ideological statements.

That said, it is not hard to understand the frustration Justice O’Connor sometimes evoked. In the 1995 Adarand case, for example, she voted with the majority to overturn a state contracting rule that included racial preferences, but declined to say racial preferences were always impermissible, which preserved an unsettling uncertainty as to how people should act to get the court’s approval.

Justice O’Connor brought the court around to the position that state restrictions on abortion were permissible if they did not impose an “undue burden” on women seeking one, but “undue burden” can be a subjective standard. She promoted the concept of the “reasonable observer” in Establishment Clause cases to determine whether a given display amounted to government promotion of religion, but the “reasonable observer” is in some ways an abstract, even mythical figure about whose observations reasonable people can easily disagree.

Her reputation as a shifting swing vote was somewhat belied in two of the last cases handed down this term. In the Raich medical marijuana case and the Kelo eminent domain case, she wrote eloquent, even stinging dissents to decisions that took an unreasonably expansive view of government powers.

Whatever her legacy turns out to be as a jurist — scholars will no doubt argue for years and may never come to a consensus — as a person, Sandra Day O’Connor was a near-perfect choice to break the gender barrier. She conducted herself with unfailing dignity, even when she was grilling an attorney mercilessly during oral arguments.

Eugene Volokh, who teaches law at UCLA and presides over a widely read legal blog (http://volokh.com), clerked with Justice O’Connor in 1993 and 1994. He said she was “a fantastic boss — very demanding but very warm to her clerks. Her public persona could be somewhat distant and formal, but she wasn’t that way in private.” She was also known to work long hours, expecting as much of herself as she did her clerks.

Whether Justice O’Connor’s retirement makes it easier or harder for Chief Justice William Rehnquist to decide about retirement only he knows. President Bush is expected to announce a replacement shortly after returning from his trip to Europe.