Sandra's Day: Why the Rehnquist Court has been the O'Connor Court, and how to replace her

National Review, June 30, 2003 by Ramesh Ponnuru

Conservatives have never much cared for Justice Sandra Day O'Connor. They viewed her nomination to the Supreme Court as the result of Ronald Reagan's ill-advised, because gratuitous, 1980 campaign pledge to appoint the first female justice. During her confirmation hearings in 1981, some conservatives argued that her record as a state legislator in Arizona made it unlikely that she would vote against Roe v. Wade. Her subsequent votes confirmed that suspicion: She reaffirmed Roe in Planned Parenthood v. Casey (1992) and even divined a kind of constitutional right to partial-birth abortion in Stenberg v. Carhart (2000). Conservative activists tend to regard her as a "moderate," or even "liberal," justice, and say that President Bush should avoid appointing another justice like her.

The standard conservative picture of Justice O'Connor is, at best, an oversimplification. She is, in truth, both better and worse than they think she is. Some conservative Court-watchers fear that the Right's confusion could cost it dearly if there is a nomination fight later this year.

The conservative case for O'Connor is that she has voted reasonably well. While she has become a reliable vote for social liberalism at the Court, she has also sided with conservatives on many occasions. The conservative heroes on the Court have been Clarence Thomas, Antonin Scalia, and, to a lesser extent, the chief justice, William Rehnquist. O'Connor has generally voted with them on racial preferences, the death penalty, criminal procedure, and other issues. She also sided with them in Bush v. Gore.

The Rehnquist Court is known for two great doctrinal innovations. Instead of continuing to insist on strict secularism, the Court now merely requires governmental neutrality among religions. The Court has also embarked on a so-called "federalism revolution" that limits the power of Congress while protecting the prerogatives of the states. O'Connor has played a leading role in both areas. Eugene Volokh, a law professor at UCLA who once clerked for her, concludes, "She's a woman of the center-right on a lot of the really important issues that have come before the Supreme Court."

Have conservatives damaged their own cause by taking an excessively negative view of O'Connor? Washington is rife with speculation that Rehnquist, O'Connor, or both will retire this summer. In one scenario, Rehnquist leaves and Bush elevates O'Connor to chief justice. If O'Connor leaves, however, the conservatives may have lowered the bar for her replacement. Alberto Gonzales, the White House counsel, is often mentioned as a potential Bush nominee. He is a moderate, and possibly to the left of O'Connor on some issues, such as racial preferences. But so hostile are conservatives to O'Connor that the White House could tell them that he is an improvement. If, on the other hand, Bush nominates a true-blue (true-red?) conservative to replace O'Connor, liberals will say that he is tilting the Court far to the right -- and by exaggerating her liberalism, the conservatives will have lent that claim credibility.

on the o'connor court

The difficulty conservatives have in getting a fix on O'Connor is a function of the bifurcation in their view of the Supreme Court. Conservative lawyers and law professors care a lot about issues such as affirmative action and federalism, on which O'Connor often votes the way they want. But social conservatives are the only mass constituency on the right that pays attention to the Court; and while they are usually allied with the conservative legal community, their priorities are different. The activists tend to disdain O'Connor because of her votes on abortion and, to a lesser extent, gay rights. The conservative lawyers tend to disagree with her decisions on those issues, but are less hostile to her because of her other votes. Another way of saying this is that how happy a conservative is with Justice O'Connor is a reflection on how happy he is with the Rehnquist Court.

Actually, the O'Connor Court might be a better label for it. Justice O'Connor gets her way more often than the chief justice does. As the "swing vote" on the Court, O'Connor is in the majority more often than any of her colleagues. Legal briefs in important cases are written to appeal, above all, to her. As a result of her position at the center of the Court, she can be a powerful voice for conservatives when she is with them. When the Court upheld school choice last year, it was her unqualified endorsement of the decision in a concurring opinion, as much as the majority opinion itself, that conferred solidity to the ruling. But it is disturbing to reflect that, given the power the Supreme Court has assumed, O'Connor has become the most powerful woman in America. Excluding foreign policy, indeed, one could even say that she is the most powerful person in America.

O'Connor's style of judging has increased that power. The justice is famous for issuing narrow rulings that turn on the particular facts of the case rather than rulings that articulate broad principles. Applying this common-law approach to constitutional cases preserves her freedom of action in future cases. But it also, and necessarily, undermines the predictability of the law and aggrandizes the judicial role. This is the principal critique that conservative lawyers -- including Justice Scalia, in many opinions -- make of O'Connor. She may often vote with Scalia and Thomas, says a former Rehnquist clerk, but "she is not driven by . . . legal arguments in the sense that a conservative jurist should be."