Media Coverage, Interviews, and Writings

SPEEDING UP TO SMELL THE ROSES

Stuart Banner•

They say SO’C is retiring. I don’t believe a word of it. Not deciding cases any more-I’ll accept that. But not retiring.

This is a woman who packs more activity into her life than anyone I have ever known. My strongest memories from clerking all involve trying to keep up with her. I think it was my second day on the job when she took us whitewater rafting. Then it was the National Gallery, Harpers Ferry, the National Arboretum, a picnic by the cherry blossoms, sailing on the Eastern Shore somewhere else every few weeks. My favorite was a behind-the-scenes tour of a U.S. Postal Service building where they were testing what were then futuristic mail-sorting machines. If you could get there from the Court within a couple of hours, SO’C got there, and she brought us along.

This wasn’t quite stopping to smell the roses. It was more like speeding up to smell the roses. And learning why they smelled the way they did. And how one could become a better rose-smeller. And what steps one should take to improve the quality of roses and the breadth of their distribution. And then moving on to the next set of flowers down the road. SO’C was interested in learning about everything and everyone.

Then there were all the people who came through the office. It seemed like every day there were visiting judges from some place or another, or one of my relatives who just happened to be popping in. (It’s funny how they never came to see me at any of

Linda Hirshman, Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World (New York: Harper Collins, 2015).

Mary Jane Mossman

Gender and Judging: Reflections on “Sisters in Law”

We want to explore what it might be possible to achieve within the law and whether the barrier to substantive equality is the law itself or the lack of equality vision in those who are charged with interpreting and applying the law.1

This comment about a project of “rewriting” decisions of the Supreme Court of Canada, a project undertaken by a group of Canadian feminist law academics a few years ago, reveals the issue that is at the heart of Linda Hirshman’s book about the first two women appointed to the United States Supreme Court: What is the relationship between gender and judging, especially with respect to goals of substantive gender equality?2 Certainly, as women have increasingly entered the legal professions in many jurisdictions in the twentieth century, there have been high expectations that the appointment of women to the judiciary would signifi cantly advance gender equality goals. Yet, as the feminist academics who tried to rewrite the decisions about equality cases in the Supreme Court of Canada discovered, it was a difficult challenge of “pushing the law and, at the same time, staying within the limits of the law.” 3 In such a context, fundamental principles about judicial decision making may sometimes prove resistant to aspirations of gender equality in law.4

THE INTERSECTION OF THE TAKINGS CLAUSE AND RISING SEA LEVELS: JUSTICE O’CONNOR’S CONCURRENCE IN PALAZZOLO COULD PREVENT CLIMATE CHANGE CHAOS

DEVON APPLEGATE*

Abstract: Takings Clause jurisprudence is in a state of disarray. The Supreme Court of the United States has not eased the difficult task of determining what constitutes an unconstitutional regulatory taking. Although the Supreme Court provided some guidance by articulating a three-prong test for determining what constitutes such a taking, it failed to define each prong. In a concurring opinion in Palazzolo v. Rhode Island, Justice Sandra Day O’Connor defined the character of the governmental act prong by emphasizing the importance of the purposes served by a governmental act. Justice O’Connor’s approach is well suited to handle future environmental regulations aimed at protecting coastal regions from rising sea levels. By embracing this approach, the Court can reduce the confusion surrounding takings jurisprudence, provide uni formity at a critical time, swiftly handle the excess of takings claims that will inevitably materialize, and give deferential treatment to important regulations that possess strong public purposes.

INTRODUCTION

Over the next decade and beyond, global warming and climate change will undoubtedly bring important environmental issues before local, state, federal, and foreign governments. 1 Sea level rise, a well-known effect of global warming, has been described as one of the greatest challenges

O’CONNOR’S CANONS: THE PROFESSIONAL RESPONSIBILITY JURISPRUDENCE OF JUSTICE SANDRA DAY O’CONNOR

STEVEN H. HOBBSt

Justice Sandra Day O’Connor came to the Supreme Court at a tJ’me of tremendous change in the legal profession. With the development of commercial free-speech doctrine lawyers were pennitted to advertise their services. Justice O’Connor vigorously opposed this development because of the potential legal advertising had for damaging the ethical standards of the profession. She believed that lawyers, because of their privileged position in society, had a higher moral duty to society as officers of the court. Moreover, she asserted that ethical standards should be established at the state level and the Court should defer to the states in this regard Justice

0 ‘Connor wrapped her professional ideals around the belief that our majestic law, steeped in traditions of freedom, democracy, and liberty, was to be maintained by lawyers with the highest commitment to professional duty and a willingness to subserve their own financial and personal interests to the needs of the clients. This article will consider the constitutional jurisprudence of Justice Sandra Day O’Connor in the arena of professional responsibility with a focus on how she expressed her ethical canons in light of First Amendment doctrine as applied to commercial free speech. Her views are immensely relevant to cUJTent discourse on professionalism.

TABLE OF CONTENTS

INTRODUCTION 100

JUSTICE O’CONNOR’S CANONS

“It’s nice to be first, but don’t be the last,” said Sandra Day O’Connor, the first woman justice on the U.S. Supreme Court (1981-2006), during a conversation she recently had with her friend, Madeleine Albright, the first woman U.S. secretary of state (1997-2001). “You actually want to do it better than anybody else,” responded Secretary Albright. “I think that’s a really important point. You don’t want to screw it up for everybody else.”

Both of these women made history when they toppled the gender barrier in their respective professions-something neither could have predicted. O’Connor grew up on the Lazy B, a remote cattle ranch near Duncan, Arizona, and initially struggled to land lawyer job interviews because she was a woman. Albright survived an unsettling childhood as a Czech refugee-first fleeing the Nazis, then communism. She was teaching at Georgetown University in Washington, D.C., and 55 years old before she received her first diplomatic post as ambassador to the United Nations in 1993.

Both have written memoirs about their lives’ unexpected twists and turns. It was the recent debuts of O’Connor’s latest book, Out of Order, and Albright’s memoir, Prague Winter, that spurred their dual appearance on March 28 at the New York Public Library for a discussion moderated by Anne-Marie Slaughter, international lawyer and president of the New America Foundation in Washington, D.C. Slaughter also happens to be the first woman who served as director of policy planning for the

INTRODUCTION: THE WOMEN AT THE UNITED STATES SUPREME COURT

I am Bryant Garth, the Dean of Southwestern Law School during the Women at the United States Supreme Court program hosted at the school on February 24, 2012. One of the privileges of being Dean is that I was able to welcome our community to this splendid event, which kicked off a remarkable day at this law school. We were celebrating our centennial, and we have come a very long way from the period when Southwestern was established. But this school has also stayed true to its roots. It is now my privilege to introduce the published version of this event.

The first classes at Southwestern contained disadvantaged minorities, immigrants, and others who would not have had the possibility of getting a legal education if Southwestern had not been established. And in particular, we celebrate the fact that our very first graduate was a woman. And not only was she a woman, but she made waves in the legal profession. Betty Trier Berry, the first graduate in 1915, went on to be the first woman to serve as a public defender in the United States.1

This centennial occasion reminded us of our early mission and our continuing commitment to challenge discrimination and unequal access to the legal profession. We began the day with this extraordinary panel moderated by Mary Alice Williams2 on Women at the United States Supreme Court. The panel, organized by Southwestern’s wonderful Professor Judy Sloan, comprised Sandra Day O’Connor,

CLOSING REMARKS: THE WOMEN AT THE UNITED STATES SUPREME COURT

Thank you, thank you, Chief Justice Cantil-Sakauye for your inspiring, incredible words. Thank you to every person of my dream panel, and I have been dreaming about this panel for about eighteen months. I just can’t believe everyone made it and spoke so beautifully. Mary Alice, thank you for such a wonderful moderation, because we aren’t very moderate, but that was good. Thank you to the Supreme Court Fellows, Alumni Association, The Women Lawyers of Los Angeles and the National Association of Women’s Lawyers for your help sponsoring this event. Thank you to all the wonderful women of Southwestern; they are all congregated over there, for all your help. Thank you to Southwestern, to Dean Garth, thank you for that. And a very special thank you to all the people behind the scenes: to Deb Leathers, Joan Bautista, who has to be exhausted, Leslie Steinberg and see that cute guy by the camera, that’s Doug Snyder, he has really, really come through. I also want to thank that wonderful string quartet that was playing as we came off the elevator. I had them play because I know how much Justice O’Connor loves music. And first thing she did when she came up was to walk over to them. Now I know some of them pretty well; that second violinist, that little cute one, that’s my husband, Bill. And the first violinist, who is so spectacular, is Sonia Luna, and we have the best violist in the entire, entire city, Carol Summers, and

A WOMAN OF THE WEST, BUT NOT THE TRIBES: JUSTICE SANDRA DAY O’CONNOR AND THE STATE-TRIBE RELATIONSHIP

Richard L. Barnes*

INTRODUCTION

Sandra Day O’Connor was the first woman appointed to the United States Supreme Court. As a first-in-category appointee to the Court, her historical role is assured. This Article examines one piece of that legacy: Is it plausible to find some of her character as a “first” in her opinions for the Court in Indian cases? Specifically, does a legacy of categorical pioneering exist in the Justice’s treatment of American Indians in her Supreme Court opinions?

Any prediction as to outcome would be shaky if based on tribal interests alone, but the examination below shows something at least as valuable.1 Her overall approach to the federal-state power balance deeply affected her opinions in the area of federal Indian law.

It appears that her overt concern was about the federal state balance, a federalism concern, and one that deeply affected her view of the tribal-state balance. Many of the opinions examined below are foreshadowed by the structure of the Justice’s opinions. Those that rested on doctrines of federal-state power allocation, such as preemption, were likely to be a loss for the tribe in its role as surrogate for federal power. This tribe-as-

* The Leonard B. Melvin, Jr., Distinguished Lecturer in Law and Professor of Law at the University of Mississippi School of Law. My thanks to Dean Richard Gershon and the Lamar Order for continuing

INTRODUCTION: Justice Sandra Day O’Connor (Ret.) Symposium

Scott Bales*

This symposium edition of the Arizona State Law Journal reflects that February 2010 was the occasion for an Arizona reunion of the nearly one hundred former law clerks of U.S. Supreme Court Justice Sandra Day O’Connor (Ret.). The reunion allowed the former clerks to hold an early birthday celebration for the Justice, who turned 80 in March 2010, and who herself had been an enthusiastic organizer of in-chambers birthday celebrations for her law clerks and staff.

In planning the reunion, the former clerks quickly concluded that it would be desirable to involve the Sandra Day O’Connor College of Law at Arizona State University. The law school had been named after Justice O’Connor in 2006 in honor of her lifelong dedication to public service, her intellectual vigor, and her fair-mindedness. A law clerk reunion offered an ideal opportunity for former clerks to visit the law school bearing her name. Dean Paul Berman promptly embraced this idea, suggesting that the law school could help host a symposium and related events. When this idea was raised with Justice O’Connor, she responded that a symposium would be just fine, but it would be much better if instead of looking back at her work on the Court, it highlighted the on-going scholarship of some of her former law clerks who are now law professors. The symposium also provided an opportunity to discuss the Justice’s efforts to promote civic education, a project

JUSTICE SANDRA DAY O’CONNOR: A SELECTED ANNOTATED BIBLIOGRAPHY

Julie Graves Krishnaswam/

WORKS AUTHORED BY JUSTICE O’CONNOR 1102

The Judiciary, Judicial Philosophy, Federalism and

International Law 1102

Equality and Feminism 1112

The Legal Profession and Professionalism 11 l 5

Tributes 1118

Autobiographical Works 1121

WORKS ABOUT JUSTICE O’CONNOR 112 l

Substantive Law Review Articles Written About

Justice O’Connor 112 l

Scholarly Monographs and Book Chapters About

Justice O’Connor 1143

Biographical Works 1146

Tributes to Justice O ‘Connor 1147

By Supreme Court Justices 1147

By Members of the Legal Profession 1149

As the first woman appointed to the Supreme Court, Justice Sandra Day O’Connor is a profound and fascinating figure in American jurisprudence. During Ronald Reagan’s presidential campaign, he promised to appoint a woman to the Supreme Court, and he appointed Sandra Day O’ Connor. 1 She was confirmed in 1981 and spent the next twenty-four years on the Supreme Court bench, retiring in 2005. Before her time on the Court, Justice O’Connor

+ Reference/Faculty Research Librarian and Associate Law Library Professor, City University of New York (CUNY) School of Law. B.A., 1999 Reed College, J.D., 2004, CUNY School ofLaw, M.L.I.S., 2008, Pratt Institute. The author wishes to thank Julie Lim, Director, CUNY School of Law Library, and colleagues Raquel Gabriel and Sarah Valentine for encouragement and assistance. The author also acknowledges the support of a research

INTRODUCTION
In a case far removed from the intellectual property area, Justice Sandra Day O’Connor once wrote that “[c]ontext matters.”1 Over the course of her twenty-four years on the Court, many commentators have written paeans to Justice O’Connor’s “give-it-to-me-straight, cowgirl” approach to judging.2 O’Connor is known and lauded for her preference for broad standards and balancing tests as opposed to bright line rules,3 her penchant for pragmatic approaches,4 and her contributions to the areas of

1. Grutter v. Bollinger, 539 U.S. 306, 327 (2003).

Craig Joyce, Lazy Band the Nation’s Court: Pragmatism in Service of Principle, 119 HARV. L. REV. 1257, 1272 (2006); see also Scott Bales, Justice Sandra Day O’Connor: No Insurmountable Hurdles, 58 STAN. L. REV. 1705, 1705 (2006) (describing her manner as “unassuming” and “down-to-earth”); Ruth Bader Ginsburg et al., A Tribute to Justice Sandra Day O’Connor, 119 HARV. L. REV. 1239 (2006) (noting O’Connor’s straightforward, no-nonsense attitude); Anthony M. Kennedy, William Rehnquist and Sandra Day O’Connor: An Expression of Appreciation, 58 STAN. L. REV. 1663, 1667 (2006) (discussing the dominant influence of O’Connor’s western roots).

See Joyce, supra note 2, at 1266 (noting that, in the landmark decision of Roe v. Wade, Justice O’Connor did not like the trimester framework, but rather preferred the undue burden balancing test). For an excellent discussion of the debate over the use of standards versus rules within the Supreme

SUPREME COURT REPORT

Death for Rape, an Echo of the Past

In a busy month for criminal cases, SCOTUS looks once more at capital punishment

I

BY DAVID G. SAVAGE

TWAS 44 YEARS AGO THIS SPRING THAT THE STATE

of Missouri put to death Ronald Wolfe for the crime of rape. Though no one could know it then, his execution would prove to be the end of an era. Rape had been a capital crime for

much of American history, and it remained so through the middle decades of the 20th century, almost exclu sively in the South. About nine of 10 of those sen tenced to death for rape during those years were black.

In 1977, a year after having restored the death penal ty as a constitutional punishment for murder, the U.S. Supreme Court branded death a cruel and unusual pun ishment for rape. The justices overturned a death sen tence for three-time rapist Ehrlich Coker and strongly suggested that only homicide qualifies as a capital crime. Coker’s victim was just 16 years old, but she was referred to as an “adult woman” in Cokerv. Georgia, 433

U.S. 584.

“We have the abiding conviction that the death pen alty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life,” wrote Justice Byron \lhite.

On April 16, the court will reconsider that “abiding conviction” in the case of a convicted child rapist from Louisiana. Kennedy v. Louisiana, No. 07-343.

When Patrick Kennedy, a black man, was sentenced to die for the rape of his

The Alito/O’Connor Switch

Joan Biskupic*

There are many factors that define the current Roberts Court, not the least of which is the dominant personality and determined approach of the Chief Justice himself. But a close second, or even arguably the leading determinant of the Court’s current direction, is the replacement of Sandra Day O’Connor with Samuel Alita in January 2006.1 And my task today is to look at some of the cases that are freshest from the recent Term that show the consequences of this succession.

The Justice O’Connor who I will be using for a point of comparison with Justice Alita is not the freshman jurist who was appointed in 198 l by Ronald Reagan2 and who, in her early years, was more aligned with Chief Justice Warren Burger and William Rehnquis t.3 Rather, I will be focusing, for purposes of these key recent cases; on the Justice O’Connor who moved to the left over time and who, in the end, controlled the Court.4

That distinction may not be so important in some areas of the law, but it is definitely crucial in the statutory and constitutional issues that were so important in the recently completed Term. It is also a reminder that Justice

Author and Supreme Court reporter for the USA Today.

See Joan Biskupic, Contrast Obvious Between O’Connor, Would-Be Successor, USA TODAY, Nov. I, 2005, available at http://www.usatoday.com/news/washington/2005-11-0l-alito oconnor_x.htm (highlighting the differences between Justices Alito and O’Connor on issues such as

JUSTICE O’CONNOR’S RACE AND GENDER JURISPRUDENCE *

Paul Bender** and Chelsea Sage Durkin***

This topic wasn’t assigned to me; I was allowed to pick anything I wanted. I could have picked bankruptcy cases-that would have been a lot easier. There are a few reasons why I chose to look at Justice O’Connor’s race and gender jurisprudence. First, it’s really true that in her twenty-five years on the court, Justice O’Connor had an enormous influence on the way those cases came out-cases involving gender discrimination and race discrimination. There is a whole string of 5-4 cases, important 5-4 cases that she either wrote-most of them she did-or was in the majority. And her views ended up being the views of the Court, and are still the views of the Court. How long they’ll remain the views of the Court, of course, remains to be seen. So right now she is the leading figure in the development of jurisprudence in those two areas. That’s one reason.

Another reason is personal, and is really the main reason. I was in the Justice Department, in the Solicitor General’s Office, right at the middle of Justice O’Connor’s years on the Court-from 1993 to 1996. I was a deputy solicitor general, and I was in charge of civil rights cases, cases coming through the Civil Rights Division, and other constitutional cases coming from other divisions. And all of the race and gender discrimination cases during that time, and there were a lot of them-some of them very important-were cases that I would be involved

JUDGES STRUCK BY LIGHTNING: Some

Observations on the Politics of Recent Supreme Court Appointments

L.A. Powe, Jr.

Justice Sandra Day O’Connor observed that President Ronald Reagan’s nomination of her to the Supreme Court “was a great surprise to the nation but an even greater surprise to me.”1 Quite. She was not even a member of the Supreme Court Bar, had never seen a Supreme Court argument, and, although a judge (and previously a state legislator), was not even on her state’s supreme court.2 Obscure might be an understatement. Quoting her colleague Lewis Powell, a quintessential centrist on the Court, she agreed that “being appointed to the Court was a little like being struck by lightning in both the suddenness and the improbability of the event.”3

I.

We can guess what being struck by lightning means to the judge who has been hit. The more relevant inquiry is what, if any, meaning it has for the nation. To explore this inquiry, a very brief detour is necessary to discuss a political phenomenon that emerged around O’Connor’s nomination. Ever since Barry Goldwater’s attack on the Court during his 1964 presidential campaign as the branch “least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power,” Republicans and Democrats have split on the Court.4 But throughout the 1970s, the parties also split on the meaning of the Constitution, a split very much apparent in 1980 and cemented four years later.5

IDEOLOGUE TO PRAGMATIST?: Sandra Day

O’Connor’s Views on Abortion Rights

Stewart Jay

Justice Sandra Day O’Connor’s retirement from the Supreme Court was lamented by most every supporter of abortion rights. And the lament grew to an outcry as the Court upheld the Federal Partial-Birth Abortion Ban Act earlier this year by a 5-4 vote.1 The legislation was essentially indistinguishable from a Nebraska statute the Court invalidated in 2000 by the same margin. 2 The difference was that in the 2000 case Justice O’Connor ruled with the more liberal Justices in striking the law as a violation of the principles of Roe v. Wade.3 Justice Anthony M. Kennedy wrote a bitter dissent in that case,4 whereas this year-with O’Connor replaced by Justice Samuel A. Alito, Jr.-he turned that dissent into an equally vigorous majority opinion.5

Whether Justice O’Connor’s continued presence on the Court would actually have made a difference to the outcome of the case is open to debate. There is good reason to believe her vote would have changed the result in Gonzales v. Carhart as the rationale of Kennedy’s opinion had been rejected by O’Connor in the earlier partial-birth abortion case.6 Putting that aside for the moment, the question addressed in this essay is how O’Connor’s views on abortion changed from the time she was a state legislator to her last decision on the subject as a Justice.

Certainly by the end of her judicial career Justice O’Connor was perceived by most every observer of the

SOME REFLECTIONS ON IMPERFECTION

Martin D. Ginsburgt

On a few occasions I have been privileged to introduce a United States Supreme Court Justice-always the same one-but never until today has any Justice been willing to introduce me. It is a great honor, richly undeserved.

It was never my good fortune to meet Willard Pedrick in person, but because I am a tax type and he was a many-things-including-tax person, I did meet Dean Pedrick in thoughtful, extremely readable law review articles, in particular articles that addressed transfer tax issues.1 But I read him first when, in pre-dean, professorial days, he wrote from the perspective of tort law an early and persuasive criticism of Senator Joseph McCarthy.2 It is a special honor to present the Willard Pedrick Lecture.

I fear my wife’s demonstrated unwillingness to speak publicly in my behalf is my own fault. Back in 1980, shortly after Ruth was appointed to her first judicial office as a judge of the United States Court of Appeals for the D.C. Circuit, we attended a large social function. An important looking fellow we did not know came up and, encouraged to “say hello to Judge Ginsburg,” stuck out a manicured hand, turned to me, and said with much enthusiasm, “Oh, Judge Ginsburg, I’ve heard so much about you!”

I grasped his hand with the greatest warmth and responded, “Actually, she’s Judge Ginsburg, but I remain hopeful.” Ruth has refused to introduce me to strangers ever since.

Lest you think this 1980 experience too

THE FUTURE OF RELIGIOUS PLURALISM:

Justice O’Connor and the Establishment Clause

Deborah Jones Merritt* and Daniel C. Merritt**

In the last opinion she authored before announcing her retirement from the Supreme Court, Justice Sandra Day O’Connor eloquently summarized the importance of our Constitution’s Establishment Clause: “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.” 1

The First Amendment, O’Connor observed, shields both religious freedom and our religiously “pluralistic society.” 2 Given the apparent success of that approach, she concluded: “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”3

* John Deaver Drinko-Baker & Hostetler Chair in Law, Moritz College of Law, The Ohio State University. Professor Merritt clerked for Justice O’Connor during her first Term on the Supreme Court.

** Kragmyth Academy, Diploma 2006. We thank Kristin Harlow for her research assistance and Andrew Merritt for his many insights, thoughtful comments, and research contributions.

McCreary County v. ACLU of Ky., 545 U.S. 844, 882 (2005) (O’Connor, J., concurring).

Id. Justice O’Connor

JUSTICE O’CONNOR’S APPROACH TO TAX

CASES: Could She Have Led the Court Toward a More Collaborative Role for the Judiciary in the Development of Tax Law?

Myron C. Grauer

INTRODUCTION

As the Internal Revenue Code (“the Code” or “I.RC.”) becomes increasingly more complex with subsection upon subsection cross referencing other sections and subsections of the Code in an effort by the drafters to close loopholes in the Code, those who toil in the tax thicket must ask themselves, “Isn’t there a better way?” In an earlier article,1 I argued for a more collaborative role for the courts in the development of our tax laws, stating, “[I]f Congress were to recognize the value of granting courts a collaborative role in the implementation of tax policy, tax statutes could be drafted in a somewhat less detailed and thus less complex manner and court opinions interpreting them could be far more principled.”2 Such a statement, however, presupposes a competent judiciary whose members are both willing and able to analyze tax cases by considering the issues before them in the context of the overarching purposes and structures of the entire Code and not simply as issues to be determined by parsing the language of an applicable Code section in a vacuum.

The ultimate arbiter of any tax issue that comes before the federal judiciary is, of course, the United States Supreme Court. The decisions of the Court are important not only for their ultimate holdings but also for the

* Professor of Law, Capital

IMPEACHMENT CALLS AND DEAIB THREATS: ASSESSING CRITICISMS OF THE DEAm PENALTY JURISPRUDENCE OF JUSTICES KENNEDY AND O’CONNOR

SUSAN RAEKER-JORDANt

Table of Contents

INTRODUCTION 1128

THE SUPREME COURT’S EIGHTH AMENDMENT CRUEL AND

UNUSUAL PUNISHMENTS CONSTRUCT 1132

Ill. THE SWING OPINIONS OF JUSTICE O’CONNOR 1134

N. JUSTICE KENNEDY AND THE EIGHTH AMENDMENT 1147

JUSTICE O’CONNOR AND JUSTICE KENNEDY MEET IN THE

MAJORITY IN ATKINS V. VIRGINIA 1156

The Evolving Standards of Decency 1157

The Legislative Evidence and Evidence of Sentencing

and Execution Frequency 1157

Evidence of International Opinion and Practices 1160

The Court’s “Own Judgment” on Proportionality 1163

JUSTICE O’CONNOR AND JUSTICE KENNEDY PART WAYS IN

ROPER V. SIMMONS 1167

The Evolving Standards of Decency 1169

The Legislative Evidence and Evidence of Sentencing

and Execution Frequency 1169

Justice Kennedy 1169

Justice O’Connor 1172

Evidence of International Opinion and Practices 1174

Justice Kennedy 1174

Justice O’Connor 1177

The Court’s “Own Judgment” on Proportionality 1179

Justice Kennedy 1179

Justice O’Connor 1180

CONCLUSION 1183

1 Professor of Law, Widener University School of Law. B.A., 1984, University of Maine at Orono, High Distinction; J.D., 1988, University of South Carolina School of Law, Order of the Coif.J.D. The author would like to thank Evan Gumz for his competent and thorough research assistance, Paula Heider for her patient and perfect clerical assistance, and Widener

A WISE JUSTICE, AND A GREAT Boss

Michelle T. Friedland*

“Thank you very much for coming,” Justice O’Connor said as I entered her chambers to interview for a clerkship. “I’m so sorry to have asked you to make the trip all the way out here from Stanford.”

Apparently Justice O’Connor didn’t realize that this was the most exciting moment of my life, one for which I would have gladly traveled anywhere. “But it is very important that I meet potential clerks in person, because each of my clerks becomes part ofmy family.” She then asked me as many questions about my family and hobbies as she did about my legal views.

I served as one of four clerks to Justice O’Connor during October Term, 2001, following my graduation from Stanford Law School and a year-long clerkship on the D.C. Circuit. I quickly learned that Justice O’Connor was serious about treating her clerks like family. She integrated us not only into the work of the Supreme Court but also into many other aspects of her rich life.

My days typically began at 7:40 A.M., when I met Justice O’Connor and her other female clerk in her chambers. Together we walked upstairs to the women’s locker room and changed into gym clothes for the exercise class the Justice hosted on the fourth-floor basketball court, often referred to as “the highest court in the land.” There, we joined about fifteen of her female friends for an hour of Pilates or aerobics. Many of Justice O’Connor’s friends wore T shirts with such slogans as “Exercise Defends

TRIBUTES

WILLIAM REHNQUIST AND SANDRA DAY O’CONNOR: AN EXPRESSION OF APPRECIATION

Anthony M. Kennedy*

Thank you for the invitation to be here to honor Sandra O’Connor and the memory of the late William Rehnquist. We meet at Stanford, the place that did so much to shape their lives and careers. The years at Stanford gave them their skills as scholars and professionals. Those years, too, helped them find their self-definition, their sense of identity. At Stanford, they continued to shape their ethical frameworks and their beliefs that the individual can, and must, contribute to the progress of a free society. It is a privilege to discuss not just one but two great Justices, here at the University that means so much to Justice O’Connor and that Chief Justice Rehnquist ever admired.

The legal academy, the Bar, historians, and the American people will study their decisions and, in good time, assess their place in the history of the Court and the history of the law. It will be for later generations to find insights more penetrating, judgments more balanced than are possible for us; but it is appropriate for you to begin the dialogue.

My remarks are a brief introduction to your discussions and an expression of appreciation for your undertaking to study the work of my late former colleague and true friend, Chief Justice Rehnquist, and my dear friend, and still esteemed senior colleague, Justice O’Connor.

To begin, let me ask you to match this description to a famous Justice: On

PROBLEMS WITH MINIMALISM

Cass R. Sunstein*

Much of Justice Sandra Day O’Connor’s work on the Supreme Court embodies a commitment to judicial minimalism, understood as a preference for narrow rulings, closely attuned to particular facts. In many contexts, however, that commitment is hard to justify, simply because it imposes severe decisionmaking burdens on others and may well create more, rather than fewer, errors. For this reason, a general preference for minimalism is no more defensible than a general preference for rules. The choice between narrow and wide rulings cannot itself be made by rules or even presumptions; it requires a case-by-case inquiry. The argument is illustrated throughout this Article with reference to the problem of affirmative action, where Justice O’Connor’s preference for particularity resulted in the imposition of a constitutional mandate on admissions offices that is not simple to defend in principle. In some contexts, however, narrow rulings are indeed preferable, in large part because they give flexibility to politically accountable officials. Justice O’Connor’s minimalism is best understood as reflecting a belief that in difficult cases at the frontiers of constitutional law.judges would do best to avoid firm rules that they might come to regret.

INTRODUCTION 1900

AFFIRMATIVE ACTION, RULES, AND TRANSPARENCY 1903

RULES, STANDARDS, AND MINIMALISM 1907

Minimalism and Its Discontents 1908

The Case for Rules? 1910

In defense of rules 1910

Meta-questio

JUSTICE O’CONNOR AND THE RULE OF LAW

Eric J. Segall*

INTRODUCTION 107

‘ THE RULE OF LAW 109

JUSTICE O’CONNOR’S DECISIONS AND THE RULE OF LAW 112

Allen v. Wright 112

New York v. United States & Printz v. United States 115

Abortion, Affirmative Action, and Establishment 118

Abortion 118

Affirmative Action 120

Establishment of Religion 122

A Few Other Examples 129

N. CONSTITUTIONAL DECISIONMAKING AND THE

RULE OF LAW 134

CONCLUSION 137

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. This is what prevents judges from ruling now this way, now that – thumbs up or thumbs down – as their personal preferences dictate.1

INTRODUCTION

In the wake of Justice O’Connor’s retirement from the Court, there will undoubtedly be a flurry of books and articles devoted to the first female

* Professor of Law, Georgia State College of the Law. Versions of this Essay have been presented at a faculty workshop at American University, and at the 2004 Conference of the Southeastern Association of American Law Schools. I would also like to thank Sandy Levinson, Steve Kaminshine, Tom McCoy, Neil Kinkopf and Mark Tushnet for helpful comments on a previous draft.

McCreary County v. ACLU, 125 S. Ct. 2722, 275 l (2005) (Scalia, J., dissenting).

107

108 UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY [Vol. 17

Justice and her many

Glen D. Nager*

I had the honor of serving as a judicial law clerk to Sandra Day O’Connor during the October 1983 Term. She was then and is now a Justice who revered the Supreme Court and who took her responsibil ity to interpret the law impartially with the utmost seriousness. Given that I am a former law clerk owing the Justice and the Court the con tinuing obligations of confidentiality and discretion, I feel obliged to eschew further comment on her jurisprudence, judicial craftsmanship, and impact on the law and the Court. However, no tribute to Sandra Day O’Connor, or “SOC” as her law clerks affectionately call her, would be complete without a recognition of her admirable nonjudicial personae. So I am pleased to accept the Review’s invitation to provide firsthand reflections about a Justice who remains a personal and treas ured friend to so many.

One of SOC ‘s nonjudicial personae is revealed in her love of mar riage and devotion to it. Her half-century romance with John J. O’Connor, or “JOC” as we call him, is enhanced by a mutual love af firmed daily, and by a lifelong commitment that clearly influences all of SOC’s priority decisions. But also prominent on SOC’s romantic record are her tireless efforts to play matchmaker for others – and particularly for her own law clerks. For some, she actively seeks ideal partners. For others, she just tries to seal the deal. In my case, I had already found the “perfect woman”; but, to SOC ‘s dismay,

Justice Stephen G. Breyer*

Sandra Day O’Connor was born in El Paso, Texas and raised in rural Arizona on a cattle ranch that her grandfather founded. She loved life on the “Lazy B,” where she learned to mend fences, ride horses, fire a rifle, and drive a truck – all by the age of eight. Her fa vorite pets included a bobcat named Bob, a horse named Chico, and a sparrow hawk named Sylvester. She left the ranch to enter Stanford University, where she attended both college and law school. Despite graduating third in her law school class, she had to deal with consider able gender-based discrimination on her way to becoming a lawyer, a legislator, and a judge. Given Sandra’s love of riding, fishing, and the outdoors, I have no doubt she would have made a great rancher. But luckily for all of us, she chose law and became a great Supreme Court Justice instead.

11 Id.at 718.
l2 WILLIAM SHAKESPEARE, HENRY V act 5, SC. 2.
13 See Kimba M. Wood, A Tribute to Justice Sandra Day O’Connor, 1996 N.Y.U. ANN. SURV. AM. L. xlviii, Ii.
* Associate Justice, Supreme Court of the United States.

Justice Byron White used to say that with each new appointment the Supreme Court is a different Court. I know only the most recent Court, the Court of the past eleven years. But that is time enough for me to understand the enormous benefit – for the Court, for its members, and for the law itself – of having Sandra Day O’Connor as a judicial colleague.

Justice O’Connor has brought to the Court’s work, among other

VOLUME 119 MARCH 2006 NUMBERS

HARVARD LAW REVIEW

© 2006 by The Harvard Law Review Association

A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

On the occasion of her retirement from the Supreme Court of the United States, the editors of the Harvard Law Review respectfully dedicate this issue to Justice Sandra Day O’Connor.

Justice Ruth Bader Ginsburg*

Justice Sandra Day O’Connor’s twenty-four years on the Supreme Court’s bench are cause for celebration. She has been rightly praised for her independence, self-reliance, practicality, and self-possession. Of all the accolades, one strikes me as describing my dear colleague best. Growing up on the Lazy B Ranch in Arizona, Justice O’Connor could brand cattle, drive a tractor, and fire a rifle with accuracy well before she reached her teens. One of the hands on the Ranch recalled his clear memory of Sandra Day: “She wasn’t the rough and rugged type, but she worked well with us in the canyons – she held her own.”1

Justice O’Connor did just that at every stage of her professional and family life. The first woman to serve on the Supreme Court brought to the Conference table experience others did not possess: the experience of growing up female in the 1930s, 40s, and 50s, of raising a family, of doing all manner of legal work – government service, pri vate practice, successive successful candidacies for legislative and judi cial office, leadership of her state’s Senate, state court judicial service, first on a trial court, then on an appellate

Afterword: Lazy B and the Nation’s Court: Pragmatism in Service of Principle

Craig Joyce*

[T]here is something about living in big empty space, where people are few and distant, under a great sky that is alternately serene and furious, exposed to sun from four in the morning till nine at night, and to a wind that never seems to rest – there is something about exposure to that big country that not only tells an individual how small he is, but steadily tells him who he is.

– Wallace Stegner 1

On the morning of July 16, 1945, Sandra Day and her father, Harry (“DA”),2 stood in the kitchen of Lazy B, the Day family ranch on the Arizona-New Mexico border, rinsing off the breakfast dishes. The sink sat below a window with a view to the northeast. The morning sun had not yet risen. Suddenly, they saw what the daughter would one day recall, in Lazy B: Growing Up on a Cattle Ranch in the American Southwest, as “an enormous flash of intense light… in the distance. There was no sound. A dark cloud formed where the light had been, and then the cloud rose in the sky.”3

Weeks would pass before Sandra and her father learned that they had seen, 180 miles away, the first test of the atomic bomb.4 In many ways, that ranch window would prove to be a window to the future –

* Andrews Kurth Professor of Law, and Co-Director, Institute for Intellectual Property & In formation Law, University of Houston Law Center; Editor, SANDRA DAY O’CONNOR, THE MAJESTY OF THE LAW: REFLECTIONS OF A SUPREME

Ruth V. McGregor*

When Justice Sandra Day O’Connor joined the Supreme Court of the United States in 1981, the Court gained much more than a Justice who, during the next quarter century, would play a major role in de termining the direction of the Court’s jurisprudence. It gained the services of a woman who would use her influence, coupled with her considerable intellect and energy, to improve justice systems here and internationally. She became personally and deeply involved in efforts to improve the status of women in the legal profession, to spread the rule of law, and to increase professionalism among lawyers. Much of her success in each area depended upon her willingness to sacrifice anonymity and to become more accessible and visible than most past Justices had been. Any analysis of the impact of Justice O’Connor’s tenure on the Court is incomplete if it does not consider her impact outside the courtroom.

The effect of Justice O’Connor’s appointment upon the status of women in the legal profession cannot be overstated. With Justice O’Connor’s confirmation, the axis of the legal world for women shifted, never to return to its old position. By 1981, women were mak ing their presence felt as law students, but had only the most precarious toehold on positions of influence within our profession. Many areas of practice were, for all practical purposes, closed to women. Few major law firms included women on their

Kathleen M. Sullivan*

For those of us who graduated from law school in 1981, the year that Sandra Day O’Connor became the first woman Justice appointed to the Supreme Court, it was difficult to imagine the legal world she had faced upon her own graduation from Stanford Law School in 1952. While her classmate William H. Rehnquist headed off to a clerkship with Justice Robert Jackson, his future colleague on the Court scrambled for legal work despite her top grades and law review membership. Law firms would consider her for positions as a secre tary but not as a lawyer; she later recalled them asking, “Ms. Day, do you type?” Nothing in her experience then could have foretold that she would ascend to the high Court at all, much less become one of the most influential Justices in its history.

In the intervening three decades, Justice O’Connor exercised excep tional strength of character, responding to the overt professional sex discrimination she encountered with remarkable resilience and re sourcefulness. She talked her way into a job in a local prosecutor’s of fice. She served as a government procurement lawyer while her hus band John O’Connor was stationed in Germany in the JAG Corps. She opened a storefront law office in a shopping center when she and her husband settled back in Phoenix. While raising three sons, she mastered the art of political networking. She wasted no energy on self-pity. As one recent biographer noted, Justice O’Connor has followed a lifelong mantra that

JUSTICE O’CONNOR AND THE “RIGHT TO DIE”: CONSTITUTIONAL PROMISES UNFULFILLED

Michael P. Allen*

INTRODUCTION

There will be much written about Justice Sandra Day O’Connor and her legacy. If nothing else, after all, she was the first woman ever to serve on the United States Supreme Court. But there is far more to Justice O’Connor’s place in the American legal landscape. She was a pivotal swing vote on a highly-divided Court. As such, her views were often critical to the development of the law over the past two decades.1 And let us not forget that she was one of the five votes that effectively decided the 2000 presidential election.2 There simply is no denying that Justice O’Connor will be remembered as a major figure in American law whether one praises or despises her jurisprudence.3

The popular press has already begun to review and assess the impact Justice O’Connor made in a number of substantive areas of law. Most frequently men tioned among these areas are affirmative action, abortion, the First Amendment’s

* Associate Professor of Law, Stetson University College of Law; B.A., 1989, University of Rochester; J.D., 1992, Columbia University School of Law. I am grateful to my colleague Becky Morgan for her comments and her support. Thanks also to the staff of the Stetson Faculty Support Office for their work on this Essay. Finally, I express my gratitude to the staff of the William and Mary Bill of Rights Journal for the work done on this Essay.

1 For example, “[o]ver the

The 102d Justice to serve on the Supreme Court was also the first whose name begins with the letter “O.” Knowledgeable scholars and students of the Court’s history are not likely to attach great significance to that fact. While Byron White was undoubtedly the finest athlete ever to serve on the Court, and also was an avid golfer, I am quite sure that No. 102 broke 90 more regularly than he did. I doubt that that fact will provide No. 102 with her principal claim to fame either. While a third happenstance—that she was also the first woman to serve on the Court—will be widely noted and acclaimed, in my judgment that is merely another interesting aspect of Sandra Day O’Connor’s remarkable career and remarkable contribution to the work of the Court.

I firmly believe that it is the consistent quality of excellence in her opinions that will provide the most accurate and reliable evidence for future historians who write about her work. This quality appears not only in her opinions in cases subject to significant public attention, but also in the less heralded cases that are the grist of our docket. Consider, for example, her lucid and honest opinion in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), which, if not the very best, was surely one of the best opinions announced last Term. Or her dissent in Atwater v. Lago Vista, 532 U.S. 318 (2001), with its forceful and persuasive points made in the clearest possible prose.

Having had the privilege of working with

IN PRAISE OF CONTEXTUALITY – JUSTICE O’CONNOR AND THE ESTABLISHMENT CLAUSE

Marie A. Failinger*

Among Justice Sandra Day O’Connor’s lasting conttibutions to Supreme Court jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government action in assessing its constitutionality. Her two decades of work in Establishment Clause law, in particular, is book ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test’ and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, 2 where it was most recently employed.3

The non-endorsement test, officially adopted by the Court as a doctrine in County of Allegheny vs. American Civil Liberties Union,4 has served as one of the two commonly competing tests in Establishment Clause cases not involving financial aid5 ever since. It requires that a reviewing court examine government action to determine whether it demonstrates a purpose to endorse or disapprove of a particular religion, or to promote religion over non-religion. Next, the Court must determine whether, regardless of its intent, the effect of the government’s action endorses or approves of religion in the eyes of a “reasonable, well-informed” or

•

I

concurrin )

Professor of Law, Hamline University School of Law.

Lynch v. Donnelly, 465 U.S. 668, 687-88, 690-91 (1984) (O’Connor, J.,

McCreary County, Kentucky v.

IN HONOR OF SANDRA DAY O’CONNOR

JUSTICE SANDRA DAY O’CONNOR: NO INSURMOUNTABLE HURDLES

Scott Bales*

Sandra Day O’Connor has often said that, as “a cowgirl from Eastern Arizona,” she was as surprised as anyone when President Ronald Reagan nominated her in 1981 as the first woman to serve on the Supreme Court of the United States.1 Her surprise reflects her unassuming, down-to-earth manner.

But O’Connor’s experiences as a cowgirl from Arizona and from serving in each branch of its state government-along with her ties to Stanford-were critical factors in her appointment. This same background, I believe, goes far to explain why, by the time of her 2006 retirement, she is regarded as the world’s most influential woman lawyer, both for her role on the Court and as a global spokesperson for judicial independence and the rule of law.

O’Connor spent her childhood on her family’s Lazy B Ranch, which straddled the border of New Mexico and Arizona. The remote ranch-more than 200 miles southeast of Phoenix and about 200 miles northwest of El Paso–occupied almost 200,000 acres of sparse, arid land in the high Sonoran desert. “It was no country for sissies, then or now. Making a living there takes a great deal of hard work and considerable luck.”2 Much turned on the vagaries of weather and the livestock markets. Life on the cattle ranch was not easy, and when O’Connor was born the ranch house lacked indoor plumbing, electricity, and running water. By the age of eight, O’Connor had learned

IN-VERSION

John K. Setear*

It is 1985. Ronald Reagan is battling the Evil Empire. Joe Gibbs has just taken the Washington Redskins to two Super Bowls. Michael Jackson, resculpted but not yet freakish, leads a huge chorus in “We Are the World.” Sandra Day O’Connor has been the First Woman on the U.S. Supreme Court for four years and, in the Washington social milieu of the time, still probably resides on the A-list ahead of any of the aforementioned men.

So, if you clerked for Justice O’Connor in 1985, everyone you met anywhere knew who your employer was once they knew who your employer was. Everyone anywhere would then tend, incomprehensibly, to skip over such important questions as how you got such a great job, or whether you were worried that you might persuade her to adopt a position that law professors would then gleefully tear to pieces for generations to come. Instead, they would invariably ask, “What’s she like?”

“Really smart,” would be an excellent and accurate answer-but, sadly, one that was often dismissed. Inquisitors tended already to believe either that all Justices were smart (if the inquisitor was a normal person) or that all Justices must be dumb (if the inquisitor worked for a member of Congress). Additionally, the occasional wiseacre would ask, “Well, then, how come William H. Rehnquist graduated first in that Stanford Law School class and Sandra Day only graduated third?” (I have always wondered who graduated second: Wally Pipp, Jr.?)

“Okay,” your inquisitor

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 pres sure” 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

COMMENT

WOMEN OF THE HIGHEST COURT: DOES GENDER BIAS OR PERSONAL LIFE EXPERIENCES INFLUENCE THEIR OPINIONS?

Brenda Kruse

I. INTRODUCTION

MANY feminist commentators have theorized that judges’ gender and life experiences influence their decisions.1 This comment hypothesizes that this phenomenon is particularly apparent in Justice Sandra Day O’Connor’s and Justice Ruth Bader Ginsburg’s decisions pertaining to employment discrimination. Before becoming Supreme Court Justices, both faced many obstacles in their professional and personal lives. In order to understand the effects of the Justices’ gender and personal experiences on their decisions, the analysis focuses on the Title VII of the Civil Rights Act of 1964 (Title VII), Americans with Disabilities Act (ADA), and Age Discrimination in Employment Act(ADEA) opinions where both Justices were members of the Supreme Court. Because the specific factors of gender and life experiences influence Justice O’Connor’s and Justice Ginsburg’s decisions, they are useful indicators to predict the Justices’ opinions in future Title VII cases.

Part II of this comment consists of two sections that discuss the gender and life experiences of the Justices in detail. Part III examines how the factors involved in these experiences influence the Justices’ employment discrimination opinions. Specifically, section A addresses Title VII cases, section B addresses ADA and ADEA cases, and section C discusses how the Justices’ Title VII opinions

Federalism on the High Seas: The Admiralty Jurisprudence of Justice Sandra Day O’Connor

BYMATTHEW J. KITA*

INTRODUCTION 132

THE PERFECT STORM: MARITIME LAW, THE CONSTITUTION, CONGRESS, ANDTHECOURTS 133

Maritime Law’s Federalism Paradox 133

Sandra Day O’Connor’s Views on Federalism 135

The Traditional Role of the Admiralty Judge 138

ROUGH SEAS: THE COURT AND MARITIME FEDERALISM BEFORE 1981 143

Moragne v. States Marine Lines, Inc 43

Sea-Land Services, Inc. v. Gaudet 145

Mobil Oil Co. v. Higginbotham 146

THE TIDE SHIFTS: MARITIME FEDERALISM IN THE O’CONNOR ERA 148

Foremost Insurance Co. v. Richardson 148

Offshore Logistics, Inc. v. Tallentire 150

Miles v. Apex Marine Corp 153

American Dredging Corp. v. Miller 155

Yamaha Motor Corp. U.S.A. v. Calhoun 156

Lewis v. Lewis & Clark Marine 158

Norfolk Shipbuilding & Drydock Co. v. Garris 161

STORM FRONT: CRITICISM OF JUSTICE O’CONNOR’S COURSE 163

A DIFFERENT TACK?: WHERE SHOULD WE Go FROM HERE? 168

Boston College (A.B. Political Science 1998); University of Maryland (Higher Education Policy 2000); University of Houston Law Center (J.D. 2005). The author would like to thank two distinguished members of the University of Houston Law Center faculty: Professor Craig Joyce for his guidance in the composition of this article, and Professor Gus A. Schill, Jr. for his instruction in admiralty and maritime jurisprudence, his dedication to teaching his students the importance of ethics and civility in the practice of law, and

Note

A CURIOUS CHOICE: Hibbs v. Winn as a Case Study of Justice Sandra Day O’Connor’s Balancing Jurisprudence

C. Lincoln Combst

INTRODUCTION

At first glance, the United States Supreme Court opinion in Hibbs v. Winn1 is a seemingly innocuous discussion of a highly technical issue: the statutory interpretation and legislative history of the Tax Injunction Act.2 A closer look, however, reveals that the case subtly demonstrates the deep ideological divisions of the Rehnquist Court, and gives some insight into arguably the Court’s most crucial decisionmaker. As is typical of many controversial decisions of the current Court, the Court split 5-4 along familiar lines with the liberal justices on one side and the conservative wing of the Court on the other.3 And, as is not unusual during her time on the Court,4 Justice Sandra Day O’Connor is in the five-Justice majority.5 What

t J.D. Candidate, May 2006, Arizona State University College of Law; B.A., University of California at San Diego, 1994; Master of Sports Administration. Ohio University, 1997. The author would like to thank Arizona Supreme Court Justice and The College of Law at Arizona State University Adjunct Professor of Law Andrew Hurwitz for his guidance and insight in selecting this topic and writing this article.

I. 124 S. Ct. 2276 (2004).

2. 28 u.s.c. § 1341 (2004).

See, e.g., Bush v. Gore, 531 U.S. 98 (2000); United States v. Lopez, 514 U.S. 549 (1995); Planned Parenthood ofS.E. Pa. v. Casey, 505 U.S. 833 (1992).

NANCY

JUDICIAL DEFERENCE TO EDUCATIONAL JUDGMENT:

JUSTICE O’CONNOR’S OPINION IN GRUTTER

REAPPLIES LONGSTANDING PRINCIPLES, As SHOWN BY RULINGS lNVOLYING COLLEGE STUDENTS IN THE

EIGHTEEN MONTHS BEFORE GRUTTER

EDWARD N. STONER II*

J. MICHAEL SHOWALTER**

It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.1

The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici…. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a

* B.A., DePauw University, 1969; J.D., University of Virginia, 1972. Mr. Stoner, a lawyer in the Pittsburgh office of Reed Smith LLP, is a member of the Pennsylvania and Florida Bars. He is a past President and Chair of the Board of Directors of the National Association of

TYSON R. SMITH*

Shades of Green: Justice O’Connor and the Environment

While generally labeled as a conservative, Justice Sandra Day O’Connor has shown a willingness to recognize and support envi ronmental issues on certain occasions. This Article will address the dynamics where Justice O’Connor seems the most willing to side with the environment and how to use this information to promote environmental protection. This Article seeks to define how her predominant jurisprudential philosophies tend toward the environmental middle ground and identifies potential oppor tunities to frame cases and issues that encourage better environ mental outcomes in future decisions.

INTRODUCTION

According to some commentators, Justice O’Connor is the Jus tice “least inclined to rule in favor of environmental interests,” but she is also “the Justice most prone to finding middle ground in environmental cases by issuing opinions that grant partial re lief to environmental concerns.”1 However, contrary to the for mer over-generalized conclusion, Justice O’Connor does allow environmental concerns and ecological principles to animate her judicial opinions and, as suggested by the latter conclusion, her philosophy towards judging in environmental cases often trumps her natural conservatism. The current Court has even been re ferred to as the “O’Connor Court” because her vote is the key

* J.D. 2003, Lewis and Clark Law School, Certificate in Environmental and Natu ral Resource Law; M.S. 1999, Stanford

Throughout her twenty-two Terms of service on the Supreme Court, Justice Sandra Day O’Connor has been subjected to labeling, and the labels form a pattern. She has been called a pragmatist;1 a centrist;’ a positivist3 who tends to defend the established legal order;4 a moderate conservative who typically favors a modest judicial role in lawmaking;5 a judge whose view of the structure of government emphasizes the defense of state sovereignty against undue intrusions of federal (judicial or legislative) power;6 a one-case-at-atime “minimalist” who seeks middle paths to decision and to doctrinal statement, and who prefers incremental movement to sweeping Kenneth L. Karst is David G. Price and Dallas P. Price Professor of Law Emeritus, University of California, Los Angeles. AUTHOR’S N -E: My thanks to Alison Anderson, Devon Carbado, William Rubenstein, David Sklansky, Jonathan Varat, and Adam Winkler for their careful and sympathetic readings of a draft of this article. Four other UCLA colleagues would have been excellent sources, for they served as clerks for Justice O’Connor. I have deliberately steered clear of consulting them, or even showing them a draft of this article. At several points in the article I indulge in unbridled speculation, and I want to avoid any possible inference that a clerk has told tales out of school. I am grateful for the assistance of our law school’s splendid research librarians, especially Jennifer Lentz and Kevin Gerson. ‘ Robert W. Van Sickel, Not

THE MICHIGAN AFFIRMATIVE ACTION CASES: JUSTICE O’CONNOR, BAKKE REDUX, AND THE MICE THAT ROARED BUT DID NOT PREVAIL

Joel L. Selig*

On June 23, 2003, the United States Supreme Court issued its decisions upholding, against Equal Protection Clause challenge, the affirmative action plan for admissions to the University of Michigan Law School (the “Law School”), Grutter v. Bollinger,1 but holding unconstitutional the affirmative action plan for undergraduate admissions to the University of Michigan College of Literature, Science, and the Arts (“LSA”), Gratz v. Bollinger.2 In Grutter, the Court upheld the Law School program because student body diversity is a compelling state interest that can justify taking race into account in admissions decisions, if the use of race is narrowly tailored to serve that interest.3 The Law School satisfied the latter condition because it eschewed quotas and provided for a holistic, individualized consideration of each applicant, even though it had a goal of attaining a critical mass of underrepresented minority students, and even though it considered race a plus factor that might be decisive in the case of any particular minority applican t.4 In Gratz, the Court struck down the LSA program because, although Grutter had held student body diversity to be a compelling state interest, the LSA program was not narrowly tailored to achieve diversity through individualized consideration of each applicant.5 Rather, the LSA program used a scoring system that

ESSAY

REPLY TO PROFESSOR TARPLEY’ SCOMMENT REGARDING JUSTICE SANDRA DAY O’CONNOR

JEAN HOEFER TOAL•

INTRODUCTION 267

BACKGROUND 268

PROFESSOR TARPLEY’S ATTACK ON JUSTICE O’CONNOR 270

THE EVOLUTION OF THE STRICT SCRUTINY STANDARD FOR EQUAL PROTECTION CHALLENGES TO RACE-BASED

CLASSIFICATIONS 271

POST-CROSON: METROBROADCASTINGANDADARAND 275

THE IMPACT OF PERSONAL ATTACKS ON JUDICIAL INDEPENDENCE. 279

CONCLUSION 282

INTRODUCTION

The Fall 2001 book of the South Carolina Law Review contains an essay by Joan Tarpley, J.D., Professor of Law at the Walter F. George School of Law, Mercer University entitled,A Comment on Justice O’Connor’s Quest for Power and Its Impact on African American Wealth.1 The essay is an overheated, sensational personal attack masquerading under the guise oflegal scholarship. Its thesis is that Justice O’Connor is a white supremacist who, through her opinion in City of Richmond v. J.A. Croson Co.,2 seeks to dismantle affirmative action jurisprudence and strengthen her position as the swing vote on the United States Supreme Court in order to exercise the power of Chief Justice, in fact, if not in name.

Selection to the editorial staff of the South Carolina Law Review in the spring ofmy first year oflaw school remains one of the proudest events ofmy

•Chief Justice, Supreme Court of South Carolina.

Joan Tarpley, A Comment on Justice O’Connor’s Quest/or Power and Its Impact on African American Wealth, 53 S.C. L. REv. 117 (2001).

2. 488 U.S. 469 (1989).

267

A COMMENT ON JUSTICE O’CONNOR’S QUEST FOR POWER AND ITS IMPACT ON AFRICAN AMERICAN WEALTH

JOAN TARPLEY*

INTRODUCTION 117

THEAFFIRMATIVEACTIONDECISIONS 120

Cases 122

Causes 127

African American Wealth 131

m. THEPoLmCIANATWORK 136

The Battles 136

Power Politics at Grass Roots Extremity 139

A Theoretical Analysis of O’Connor’s Quest/or Power 144

IV. CONCLUSION 147

INTRODUCTION

The distribution of wealth depends, not wholly, indeed, but largely, on a [society’s] institutions; and the character of [a society’s] institutions is detennined, not by immutable economic laws, but by the values, preferences, interests and ideals which rule at any moment in a given society.1

In general, African Americans didnot experience the “wealth effect” connected with the booming American economy of the 1990s.2 This Essay addresses the asset poverty of blacks in America and how the Supreme Court’s affirmative action decisions play a role in continuing that poverty. In particular, this Essay addresses how Justice Sandra Day O’Connor’s affirmative action opinions further institutionalize the “whiteness as property”3 character of America’s institutions. 0 ‘Connor is the subject of this Essay rather than one of the other conservatives on the Court because, as this Essay will demonstrate, she writes as a moderate voice so that she can be the Court’s point person on some of the “hot button” issues.

* Professor of Law, Mercer University, Walter F. George School of Law. B.A.,

Of Hobgoblins and Justice O’Connor’s Jurisprudence of Equalityt

Vikram David Amar•

INTRODUCTION

Justice Sandra Day O’Connor is, I’m sure, tired of being identified as the jurist who holds the fate of constitutional law in her hands. At a recent judicial conference, she responded to a seemingly innocuous observation by United States District Court Judge Terry Hatter that she is the pivotal high court vote in so many disputed areas by chiding him with the line: “You’ve been reading too many newspapers. I get a little impatient with that description.”‘

But the newspapers and Judge Hatter are right: Justice O’Connor’s vote and voice are, at this point in time, constitutionally crucial. And I’m not sure that recognition of this reality is really what bothers her. Instead, I think what must get tiresome for her is not the observation that her stance determines outcomes, but the separate (though often accompanying) comment that her voice is idiosyncratic, ad hoc and not terribly consiste nt.2 Being reminded you have the power is one thing; being accused of exercising the power in an erratic and unprincipled way is quite another.

In this short essay, I’d like to unpack a few of the supposed idiosyncracies and inconsistencies in Justice O’Connor’s jurisprudence of equality. Equal protection law is, of course, a huge topic, so I am going to narrow my focus to the most contentious area of equal protection, and the one where Justice O’Connor has made her most visible mark on legal doctrine-t

Justice O’Connor and Federalism

Erwin Chemerinsky•

I. INTRODUCTION

This is now, without question, the Sandra Day O’Connor Court. Out of tradition and deference to the Chief, it is commonly referred to as the Rehnquist Court. But let there be no mistake: for now, a single Justice, O’Connor, is in control. In virtually every area of constitutional law, her key fifth vote determines what will be the majority’s position and what will be the dissent. Lawyers who argue and write briefs to the Court know that often they are, for all practical purposes, arguing to an audience of one.

Statistics confirm this. Last October Term 1999, the Supreme Court decided 73 cases. Justice O’Connor was in dissent only four times. In contrast, Justice John Paul Stevens dissented twenty-eight times, while Justice Ruth Bader Ginsburg was in the minority twenty-three times. Among conservatives, Justice Scalia dissented fifteen times and Justice Thomas twelve times. Nor is this a one-Term phenomenon. The year before, Justice O’Connor was in the majority in sixty-seven to seventy-five cases decided.

Perhaps even more significantly, Justice O’Connor was in the majority in virtually all of the 5-4 decisions. Last October Term 1999, twenty-one of the seventy-three cases were resolved by 5-4 margins. Justice O’Connor was in the majority in nineteen of those decisions, the most of any Justice on the Court.

Perhaps most notably, Justice O’Connor is the crucial fifth vote in cases concerning federalism. As

A Woman Decides: Justice O’Connor and Due Process Rights of Choice*

Peggy Cooper Davis•• and Carol Gilligan•••

We have been asked to address Justice O’Connor’s reproductive rights jurisprudence. Of course, the mention of Justice O’Connor in a sentence with reproductive rights calls to mind a familiar narrative: a story of opposition to-and vindication of-Roe v. Wade’s I central holding. Its subject is the constitutional principle that state regulation of a woman’s decision whether to continue or abort a pregnancy must be measured in ways that reflect the fundamental importance, in our constitutional scheme, of uncoerced decision making about such life-defining matters as marriage, procreation, parenting, and the manner of one’s death.2 Its hero is Justice O’Connor. The story’s basic plot is as follows: a president opposed in principle to the termination of pregnancies by abortion appointed Justice O’Connor to the Supreme Court bench in the hope that she would supply a vote crucial to overturning Roe and returning to states the authority to prohibit and criminalize abortion. In decisions spanning her first ten years on the Supreme Court bench, the Justice developed an influential critique of the reasoning of Roe. In 1992, however, she joined fellow centrists on the Court to reaffirm Roe’s central holding and to reaffirm as well the broader constitutional right to a significant measure of freedom from state coercion in making basic and intensely personal life choices. As the

A Decent Respect for Religious Liberty and Religious Equality: Justice O’Connor’s Interpretation of the Religion Clauses of the First Amendment

Alan Brownstein•

TABLE OF CONTENTS

I. INTRODUCTION 838

I THSUBSTANCE OF JUSTICE O’CONNOR’S INTERPRETATION OF THE

RELIGION CLAUSES 838

Free Exercise Doctrine 838

A Commitment to Religious Liberty 838

2. Balancing Religious Liberty Against State interests 840

Establishment Clause Doctrine 843

Endorsement and Religious Equality 843

The Meaning of Endorsement 845

The Scope of the Endorsement Standard 845

Neutral Observers and Social Constructs 847

Endorsements and the State Display of Religious

Symbols 851

Endorsements and Legislative Accommodations of

Religion 859

Endorsements and State Funding of Religious

Organizations 862

Beyond Endorsement-Using Free Speech and Equality Principles to inform the Meaning of the Establishment

Clause 865

THE FORM OF JUSTICE O’CONNOR’S INTERPRETATION OF THE RELIGION CLAUSES 868

Correlating Terms and Meanings 868

Standards and Balancing Tests 869

IVP.LACING JUSTICE 0′ CONNOR’S RELIGION CLAUSE JURISPRUDENCE IN

PERSPECTIVE 871

* Professor of Law, University of California, Davis; B.A., 1969, Antioch College; J.D. 1977, Harvard University. I would like to thank Vikram Amar and Fred Gedicks for reading drafts of this article and providing helpful criticism. I also wish to acknowledge the help I received from my research assistant, Benjamin Fite.

837

INTRODUCTION

Justice O’Connor’s

THE RUGGED FEMINISM OF SANDRA DAY O’CONNOR

JUDITH OLANS BROWN° WENDYE. PARMET0 MARYE. O’ CONNELL0 0

“Is she or isn’t she?” Since Sandra Day O’Connor’s nomination to the Supreme Court in 1981, scholars have been unable to resist debating the existence and/or extent of her feminist credentials.• Although lively at times, ultimately this discussion is sterile. Focusing on whether Justice O’Connor is a “true” feminist inevitably overemphasizes a particular delineation of feminist orthodoxy2 and neglects the nature of her contributions to issues that matter to women.3 In our view the more significant question is the one less often asked: What does Sandra Day O’Connor do when issues that affect the lives of women come before her? Does her gender inform her approach to what Professor

Professor Emerita, Northeastern University School of Law. A.B., 1962, Mt. Holyoke College; LL.B., 1965, Boston College Law School. We thank our colleagues, Jane Scarborough • and Jonathan Lipson, for thoughtful comments on an earlier draft of this Article. We are also grateful for the efficient and effective help of librarian Kim Dulin and the excellent research assistance of students Brigitte Amiri, Aliza Kaplan, and Stephanie Wingfield of Northeastern University School of Law.

•• Professor of Law, Northeastern University School of Law. A.B., 1979, Cornell University; J.D., 1982, Harvard Law School.

••• Professor of Law, Northeastern University School of Law. B.A., 1970, Brandeis University; J.D.,

JUSTICE O’CONNOR’S DILEMMA: THE BASELINE QUESTION

SUZANNA SHERRY•

Many commentators view City of Boerne v. Flores,1 in which a divided Supreme Court struck down the Religious Freedom Res toration Act of 1993 (RFRA),2 as a major defeat in the battle for religious freedom in the United St ates.3 Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justic es and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority’s holding as defining the law for purposes of establishing a baseline for subsequent questions?

THE BASELINE DILEMMA

In order to understand the question I will address, some brief background on Flores is necessary. Prior to 1990, the Supreme Court interpreted the Free Exercise Clause of the Constitu tion-applicable to the states through the Fourteenth Amend ment-to require the government to accommodate religious beliefs by granting exemptions to those with religious objections to generally applicable laws, unless the government could show

Earl R. Larson Professor of Civil Rights and Civil Liberties Law, University of Minnesota. I would like to thank Jim Chen, Jack Cound, Paul Edelman, Dan Farber, Phil Frickey, and Barry Friedman for helpful comments on earlier drafts, and Betsey Buckheit, Minnesota J.D., 1999, for research assistance.

1. 117 S. Ct. 2157 (1997).

2. 42 U.S.C. §§ 2000bb to 2000bb-4 (1994).

3. A few,

TOWARD A COLORBLIND CONSTITUTION:

JUSTICE O’CONNOR’S NARROWING OF AFFIRMATIVE ACTION

INTRODUCTION

We are a Nation not of black and white alone, but one teeming with divergent communities knitted together by various traditions and carried forth, above all, by individuals. Upon that basis, we are governed by one Constitution, pro viding a single guarantee of equal protection, one that extends equally to all citizens.1

With this statement, Justice O’Connor firmly established her adherence to the concept of a colorblind Constitution. Under this interpretation, the Consti tution attaches to individuals and not to groups, thus preserving “the equal worth, dignity, and respect of every individual regardless of race.” 2 This reading of the Constitution plays a prominent role in Justice O’Connor’s af firmative action jurisprudence.

Consistent with this interpretation of the Constitution, Justice O’Connor reviews constitutional challenges to affirmative action plans with strict scru tiny. Employing this standard of review, she has narrowed the permissible uses of affirmative action, thus reducing the instances of racial discrimination that unduly burden nonminorities and exacerbate racial hostilities. Her fair and open-minded approach has allowed employers, schools, and other entities to implement affirmative action plans to correct past discrimination while it has eliminated improper racial balancing not seeking to amend past injustices. Throughout her tenure, Justice O’Connor has