Media Coverage, Interviews, and Writings

FIRST IMPRESSIONS: A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

Viet D. Dinh*

Justice O’Connor cares about federalism, and here is how I know. I first met her after two nights without sleep. In typical law student fashion, I had prepared for the clerkship interview by read ing everything possible about the Justice – law review articles, ma jor opinions, transcripts of confirmation hearings, even a biography written for sixth graders. I prepared a list of questions and answers, talked to professors, and practiced with friends.

All for naught. After pleasantries about writing and the Court, my discussion with the Justice took a curious turn. Referring to my first summer in college, Justice O’Connor said, “I see you were an intern for the City of Yorba Linda.” I muttered a flustered re sponse, and we spent a good deal of time talking about my experi ence working for city governments and my college thesis on local politics.

During our conversation (and in her various public com ments), Justice O’Connor drew upon her own career in state gov ernment. Before her appointment to the Court,Justice O’Connor was a veteran of Arizona government, both in the judiciary and the legislature, where she served as majority leader. This experience gave life to her respect for the federal system, a system which Si mon Bolivar once criticized as “over perfect” and which “demands political virtues and talents far superior to our own.”1 Recent deci sions from the Court concerning feder alism2 and proposals

A Not Quite Color-Blind Constitution: Racial Discrimination and Racial Preference in Justice O’Connor’s “Newest” Equal Protection Jurisprudence

JUSTIN SCHWARTZ*

Under the leadership of Justice O’Connor, the Supreme Court has fashioned a uniform standard for examining the constitutionality of racial classifications under the Equal Protection Clause. Though her standard is appropriately labeled as strict scrutiny for both invidious and benevolent classifications, it should not be understood as “strict in theory, fatal in fact” and it is not color-blind. Instead, Justice O’Co,uwr’s newest equal protection jurisprudence is “not quite color-blind.” The standard is consistently high and it demands that for a classification to be acceptable it must nonnall;y be confined to remedial aims and that the claims to a benevolent purpose must be genuine and justified.

INTRODUCTION

In a series of recent cases concerning racial preferences, the Supreme Court, largely under the leadership of Justice O’Connor, has articulated a new doctrine concerning the constitutionality of governmental racial classifications under the Equal Protection Clause of the Fourteenth Amendment.1 The Court has determined, after twenty five years of debate, that the most stringent standard of review (“strict scrutiny”) applies to all such classifications, even those intended to benefit rather than to burden historically disadvantaged minorities.2 This standard has been applied to racial preference programs in

* J.D.

A Tribute to Justice Sandra Day O’Connor From an International Perspective

Elizabeth F. Defeis*

Today, we are witnessing momentous upheavals all over the globe. Social, political and economic structures are questioned and rejected as nations struggle to replace discredited, antidemocratic systems with sys tems predicated on the rule of law. In Latin America, Africa, and na tions of the former Soviet bloc, new constitutions are debated and adopted, human rights are capturing the imagination of people every where, free and fair elections are the norm to be attained and a culture of consitutionalism is now developing. 1 The United States Constitution, with more than 200 years of continual existence, is the oldest surviving written constitution. As a result, it is one of the leading models that other nations look to as they seek to form a democratic society consonant with their own traditions and values.

This historic moment has attracted the attention and commitment of Justice Sandra Day O’Connor. Indeed, she has championed the essential elements of a democratic society endorsed by the international community and has become an eloquent spokesperson for, and teacher of, democratic values throughout the world. Justice O’Connor serves as an executive board member of the Central and East European Law Initiative of the American Bar Association (CEE Ll).2 One of CEELI’s goals is to foster a commitment to an economic and political culture that is based on the rule of law.3 The CEELI

A TRIBUTE TO

JUSTICE SANDRA DAY O’CONNOR

I am honored to be a part of this celebration of my friend and colleague Justice Sandra Day O’Connor. It is hard to believe that almost fifteen years have gone by since she was appointed to the Supreme Court of the United States. Fifteen years on the Supreme Court is quite a milestone, even for a person who has made a career out of setting milestones.

On July 7, 1981, President Ronald Reagan announced Judge O’Connor’s appointment and stated that she “is truly a person for all seasons, possessing those unique qualities of temperament, fair ness, intellectual capacity, and devotion to the public good which have characterized the 101 brethren who have preceded her.”1 In deed she had unique qualities and a unique perspective.

Sandra Day O’Connor was raised on a rural cattle ranch in Ari zona. Several years after graduating as one of the few women in her class at Stanford University Law School, she served as an assistant attorney general of Arizona. In 1969, she began her tenure as a legislator in the Arizona State Senate. After rising to the post of majority leader in the Arizona State Senate, she became a superior court judge and then an appeals court judge.

Justice O’Connor took those experiences with her to the Supreme Court. It is interesting to note that in addition to being the first woman appointed to the Supreme Court of the United States, Justice O’Connor was the first state court jurist to join the Court since I took the oath

SANDRA DAY O’CONNOR: JUSTICE, AMBASSADOR, AND ROLE MODEL

Over the last several years, the Supreme Court’s role has subtly changed, making Justice Sandra Day O’Connor more important to the Court than ever. Whereas the Court previously had mandated jurisdiction over certain cases, it now hears only those cases which the members of the Court deem worthy of consideration. As the press has noted, the number of Supreme Court cases has declined rather dramatically. The reasons for this decline are complex and, to some degree, impenetrable or at least unprovable. Part of the decline in the caseload, though, must be attributed to the fact that some of the previously “necessary” cases did not really require Supreme Court intervention. There has also been an apparent change in the philosophy of certiorari jurisdiction. The Court seems to wait longer now than it did before. But for exceptional cases, circuit splits need to be significant before the Court will grant certiorari on a particular issue. The Court seems to have adopted the attitude of a referee who waits until the players definitely require intervention before taking action. When a court behaves in this manner, it is tempting for its members to believe that they must issue rules that will provide guidance in every potentially related case. For some, bright-line rules and predictability become of paramount importance. The Court’s mission shifts on the margins from the common law model of resolving individual disputes to the civil

JUSTICE SANDRA DAY O’CONNOR: SOME REMINISCENCES

The year was 1981. I had just graduated from law school and was clerking for Judge Albert Tate, Jr., now deceased, who then sat on the United States Court of Appeals for the Fifth Circuit. I had applied for a clerkship on the United States Supreme Court, as did virtually every other recent graduate who had done well at a good law school, and who landed a clerkship with a federal or state court. But I also knew that the odds for any applicant were extraordinarily low. The Court then took 34 law clerks annually. Each Justice had four clerks, except for then-Justice Rehnquist, who took three, Justice Stevens, who took two, and Chief Justice Burger, who had a fifth “superclerk” to help in matters of Court administration. Sometime in late summer 1981, President Reagan nominated Sandra Day O’Connor, a state court judge from Arizona, to fill the spot vacated by Justice Potter Stewart. I asked Judge Tate, who was a liberal in his judicial outlook and a populist to the very core of his soul, to write on my behalf to the nominee. He replied, “Sure. But it won’t do you any good. She’s not likely to credit the opinion of an ‘activist’ like me.” He sent off a letter, and, like all realistic applicants for the job, I left my fate to the clerkship gods and returned to work drafting opinions and doing my bench memoranda. Several weeks after Judge Tate sent his letter, Justice O’Connor, who had by then been confirmed, summoned me to Washington

AN “IMPRESSIVE SHOW’: A TRIBUTE TO JUSTICE O’CONNOR*

Some time ago, when I happened to answer the telephone in Chambers, a caller said that she was submitting a clerkship application, but had a question: “Does the Judge spell her first name S-ON-D-R-A or S-A-N-D-R-A?” I responded that there was no clerkship vacancy. While I thought in regret a moment later that the confusion was understandable-“Day” and “Kaye,” Washington and Albany (both capitals)-in the end, I’m certain it was simply a matter of gender. And in the end it’s definitely a privilege to share a gender with Justice Sandra (that’s “a” not “o”) Day (not “Kaye”) O’Connor. The confusion is enormously flattering. In fact, Justice O’Connor herself made light of the phenomenon when she and Justice Ruth Bader Ginsburg attended a 1993 function wearing T-shirts with “The Supremes” on the front and “I’m Sandra, not Ruth” (and vice versa) on the back. It’s hard to believe that Justices O’Connor and Ginsburg are ever mistaken for one another-again, the physical resemblance between the two is hardly striking.1 But there is no question about it. In a day when women are still a rarity in high office, gender remains a defining quality, even within the judicial system. In the course of her distinguished career, Justice O’Connor has encountered, and recounted, instances of gender discrimination. They began with her very entry into the legal profession when, upon graduating near the top of her class at Stanford Law School in 1952,

A TRIBUTE

In the spring of 1989, 1 turned 33 and planned to marry in late summer. That same spring, Sandra Day O’Connor turned 59. Soon to be a first-time grandmother, she was still recovering from breast cancer therapies of the previous fall and winter. At various moments during those springtime months, both of us must have had thoughts about parenting, about children, about our futures and about the fragility of our lives. I recall having had such thoughts the day the Justice took her clerks for a stroll around the Tidal Basin to admire the cherry blossoms in all their fleeting beauty. Maybe similar thoughts were on her mind. We were probably also thinking about parents, children and fragility in a more immediate way that afternoon. Webster v. Reproductive Health Services1 was set for oral argument on April 26. The Justice’s vote was almost certainly going to be the crucial fifth. On the Saturday morning before oral argument, we clerks would gather with the Justice to preview the arguments. Traditionally, these Saturday meetings took place in Chambers. That October Term we often met at the Justice’s home in deference to her health. Fragility was in the air. In fact, with respect to Webster, it pervaded the Court and especially her Chambers. Justices, clerks and Court watchers all recognized that Webster offered the Court an opportunity to revisit Roe. Continued protection of the right at the core of Roe-“the right of the woman to choose to have an abortion before viability

THREE JUSTICES IN SEARCH

OF A

CHARACTER:

THE MORAL AGENDAS OF JUSTICES O’CONNOR, SCALIA AND KENNEDY

Stephen E. Gottlieb

OBJECTS OF THE STUDY 220

CHARACTER AND CONSERVATIVISM 224

Democracy rests on character. 224

Conservative admiration for character. 225

Intent. 226

* Professor, Albany Law School; Joseph C. Hostetler-Baker and Hostetler Visiting Chair in Law, Cleveland Marshall College of Law, 1995-96. Princeton University, B.A. 1962; Yale Law School, LL.B. 1965. I would like to express my appreciation to Owen M. Fiss, Gary J. Simson, Robin L. West, and Bonnie Steinboch, to my colleagues at Albany, John

T. Baker, Martin H. Belsky, Vincent Bonventre and Patrick J. Borchers, and my colleagues during a year long visit at Cleveland-Marshall College of Law, David Forte, Greg Mark and James Wilson, for reading and

giving me the benefit of their comments and criticisms of various versions of this essay and of a draft of a larger work from which this article is drawn, to participants at faculty seminars at Albany Law School and Cleveland-Marshall College of Law, to my students in a seminar on the Supreme Court, to my research assistants, Michele Ann Baumgartner, Thomas M. Bevilacqua, Leigh Ann Singleton and Julie L. Stein at Albany, and Jennifer McKeegan at Cleveland, and to Camille Jobin-Davis, a student who wrote a paper under my supervision and whose work has been helpful. Numerous conversations with Patrick Borchers were particularly helpful in trying to analyze the work

A TRIBUTE TO

JUSTICE SANDRA DAY O’CONNOR

In July, 1981, President Reagan nominated Sandra Day O’Connor as a Justice of the United States Supreme Court. The nomination was greeted with enthusiasm by the press and the gen eral public. The applause generated was focused initially on the fact that she would be the first woman to serve on the Supreme Court. Outside of Arizona, her qualifications were not well-known and, even as a nominee, she was stereotyped as a Reagan conserva tive-whatever that might have meant. Her confirmation hearings, however, demonstrated not only that she was articulate and well prepared, but that this nominee had the intellectual strength and ability to make a substantial contribution to the Court. As Dean Alan A. Matheson of the Arizona State University School of Law stated at the time, “After the clamor concerning the first female appointee has receded, Justice Sandra [Day] O’Connor will be judged solely on the basis of her ability and her contribution to the development of the law. The judgment will be a positive one.”1

Justice O’Connor is now in her fifteenth term of service on the Court. The judgment is indeed a positive one.

I am not the appropriate person to comment on Justice O’Connor’s significant contributions to the work of the Court in the criminal justice and civil rights areas, or with respect to redis tricting, affirmative action, abortion, the federal-state relationship, the Establishment Clause, etc. And very few would be interested

A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

I am honored to deliver this tribute to Justice Sandra Day O’Connor. I have observed her judicial career with great interest and great admiration. Justice O’Connor will, of course, go down in history as the first woman on the Supreme Court. That, in itself, is a remarkable achievement. But it is one thing to be the first to get somewhere, and quite another to lead and excel when one gets there. Justice O’Connor is not one to rest on her laurels-indeed, it is reputed that resting is one of the few activities at which she does not excel. For this reason, it seems to me appropriate that I focus my remarks today on her judicial style and achievements. Cases get to the Supreme Court because they are difficult and important. Justice O’Connor’s well-known reluctance to rely on simple per se rules recognizes that reality. Justice O’Connor epitomizes the judicial virtues needed to decide these difficult, important cases: she is meticulously prepared; attentive to the subtle details, complexities, and human interests on both sides of the cases; and ready to exercise legal, not political, judgment. Justice O’Connor is first and foremost a “lawyer’s judge.” Her refusal to embrace ideological dogmas has consistently frustrated those who adhere to what we might call the “traffic direction” school of law: left or right? Real lawyers know that law is not so one dimensional, and they are reminded of that fact frequently by justice O’Connor’s nuanced and

A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

I am pleased and honored to have this opportunity to pay tribute to my friend of forty-five years, Justice Sandra Day O’Connor. I will not try to spell out the positive effect that Sandra has had on the evolution of our nation’s law in her fifteen years on the Court; suffice it to say, she has developed a brilliant and well respected body of jurisprudence. But, as I would have expected, to look only at Sandra’s jurisprudence is to seriously understate the contribution she has made as a Supreme Court Justice. Sandra has a warm, giving nature and a seemingly inexhaustible well-spring of energy that will not allow her to believe that her work consists solely of hearing oral argument and drafting opinions, although these duties in themselves amount to more than a full-time job. As long as I have known her, Sandra has always gone beyond the stated duties of whatever position she has held, and her appointment to the Supreme Court has, if anything, inspired her to go even further beyond what is required. With her years of experience in the American legal profession and her unique perspective as a Supreme Court Justice, Sandra is an ideal candidate to advise other nations about the operation of our nation’s legal system. She has embraced her candidacy with characteristic vigor. Since her appointment to the Court, Sandra has met with foreign judges and dignitaries from countries on six of the world’s seven continents. She has also participated

A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

It is a great privilege, and a personal pleasure, to introduce Justice O’Connor, who honors us with her presence. Her remarkable, almost storied background is well known. Pathbreaker, one who overcame the extraordinary, almost unthinkable disabilities as a young lawyer whose professional opportunities were arbitrarily and invidiously limited. Yet she succeeded admirably, taking on task after task and discharging her varying and growing duties in a way that won Phi Beta Kappa, Law Review type honors that characterized her distinguished academic career at Leland Stanford’s University, the N.Y.U., if you will, of the West. That she is a person of great accomplishment and ability is universally understood. What is less known here in the East about her remarkable background is that, long before the Year of the Woman, then duly elected Senator O’Connor, upon entering the Arizona State Senate, rose with meteoric speed to become Senate Majority Leader. This in a, shall we say, male-dominated institution. Notwithstanding her success in politics, she opted instead for the life of the law and the bench. Her shill and wisdom as a trial judge were renowned, and she quickly rose to the intermediate appellate bench in her native State. (Although for purposes of precision I must say, as a native Texan, that we in the Lone Star State proudly, parochially claim Justice O’Connor as our own since she had the good fortune to be born in El Paso.) When back

A TRIBUTE TO

JUSTICE SANDRA DAY O’CONNOR

Justice Sandra Day O’Connor is the quintessential American pioneer. The word pioneer has its origins in the old French word “pionier,” or soldier travelling by foot. In English it describes a per son who ventures into unknown or unclaimed territory, one who settles in a previously barren environment-a trailblazer and inno vator.1 For Americans of any political stripe, these pioneer qualities represent the greatness of our nation and the essence of our na tional identity. Much more than the particular path blazed or terri tory claimed, we value the tenacity and independence that the endeavor itself demonstrates. Justice O’Connor possesses this pio neer character in abundance, and it has led her to triumph over formidable odds, both social and personal. Perhaps more than any other person in public life today, she embodies a spirit and tradi tion that is at the heart of being American.

Justice O’Connor was born and raised on a three hundred acre Arizona cattle ranch, which was first settled by her ancestors many

years earlier. Twenty-five miles from the nearest neighbor, life on the ranch was surely isolated and lonely.2 But from those early years in the Arizona desert, a young Sandra Day must have also learned independence and self-reliance, living in one of our coun try’s great open spaces, horseback riding under the limitless sky. With only herself to consult, she learned the values of practicality and seU:possession.

She was sent

A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

Every woman lawyer then practicing in America remembers her excitement on July 7, 1981, upon hearing that a woman, Sandra Day O’Connor, unknown to most of us, had been named to the United States Supreme Court. We knew from our own experiences the great positive message the appointment sent to the world: that the height of intellect, scholarship, and wit, that Justice itself, came literally in a woman’s form. As we learned something of her life and accomplishments we each also, truth be known, heaved a secret sigh of relief. In this historic appointment were clearly the hallmarks of excellence and experience required of every appointment to the Supreme Court. This time justice came looking like us instead of the other guys. We knew that for our “team,” the first simply also had to be far better than best. Sandra Day O’Connor had been on the Law Review at Stanford, among the top in her class at that great law school. She lived the private life of a wife and mother. She knew the frustration of being unable to get a job because she was a “she.” We found that she had been a legislator and a judge. Hers were the skills needed for a meaningful presence on the Court: proven scholarship, practice at decisionmaking, and the political knack needed to succeed in the give and take world of nine strong-willed, brilliant individuals, all the while remaining resilient and persuasive. We could not know that fifteen years later she would emerge as perhaps

Retail Jurisprudence:

The Judge as Entrepreneur in the Marketplace of Ideas

Cynthia L. Catest Wayne V. Mclntoshtt

he best test of truth is the power of the thought to get itself accepted in the competition of the market….

-Abrams v. United States, 250 U.S 616, 630 (1919)

(Holmes, J., dissenting).

INTRODUCTION

Oliver Wendell Holmes’ simple metaphor of a “marketplace of ideas” created the enduring image of ideological goods vying for supremacy in a democratic marketplace. As in perfect commercial competition, the public purchases the valuable concepts, rejects the ill-conceived, and demands constant cultivation of both. In this way, the free market yields valuable ideas and, ultimately, truth. According to Holmes, this metaphorical scenario embodies “the sweeping command” of the First Amendment.1

While Holmes’ Abrams dissent arguably represents both the most eloquent of judicial statements and the most succinct assertion of grand jurisprudence, it noticeably and rather ironically neglects a key element of the economic allegory it embraces-the role of the entrepreneur. The hapless revolutionary Jacob Abrams suggests the role an “idea entrepre neur” might play, and the risks he might incur. But the doctrine which Holmes propounds in a single very “impressive” paragraph concerns the interplay of markets, goods, and consumption. 2 Holmes’ summary train of discourse addresses the movement of ideas, rather than the movers. He

t Assistant Professor of Political Science, Towson

Justice O’Connor

and the equal protection clause: a feminine voice?

An analysis of O’Connor’s votes

on equal protection issues failed to find

a unique pattern, contributing to a growing body of literature that suggests there are few

consistent differences between men and women judges.

I

by Jilda M. Aliotta

t seems intuitively obvious that gender identity influences judges’ decisions, and this com mon-sense expectation is not

without theoretical support. Scholars of judicial behavior argue that judges’ social attributes are correlated with their decisional propensities. 1 Ac cording to this theory, social attributes like religion, place of rearing, and prestige of education reflect experi ences that have long-lasting effects on attitudes, values, and world views. 2 Gender certainly appears to qualify as one such attribute.

Although differences in socializa tion between male and female judges can be expected to be less pronounced than between men and women gener

household responsibility.4 Feminist legal theorists have

also argued that women judges will speak with a “different voice.” 5 Several of these theo rists find their inspiration in the work of psychologist Carol Gilli gan, who argues that women’s styles of reasoning and ap proaches to problem solving differ from those of men. 6 Ac cording to Gilligan, while men tend to view the world atomistically and to search for abstract principles to resolve moral problems, women are more likely to see the world as

interconnected

Rethinking Feminist Judging

MICHAEL E. SOLIMINE* SUSAN E. WHEATLEY**

INTRODUCTION

For nearly two centuries no woman served on the United States Supreme Court and very few served on either the lower federal courts or state courts. Today, Sandra Day O’Connor and Ruth Bader Ginsburg are members of the

U.S. Supreme Court, and burgeoning numbers of female judges have joined them on other federal and state courts.1 Contributing to this change, the Clinton administration is appointing unprecedented numbers of women to the lower federal courts.2

The increasing number of female judges, not coincidentally, has been accompanied by questions about whether female judges and female judging are distinctive in some way, and by calls for further increasing the number of female judges. Some writers assert that female judges approach cases and make decisions in ways that their male colleagues are unable or unwilling to do. According to these writers, most if not all female judges engage in contextual analysis, consider a broad range of factors, and tie their decisions less to arbitrary rules than to flexible standards.3 Drawing on these empirical

Copyright © 1995 by Michael E. Solimine & Susan E. Wheatley. All Rights Reserved.

* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. J.D., 1981, Northwestern University; B.A., 1978, Wright State University.

** Partner, Taft, Stettinius & Hollister, Cincinnati, Ohio. J.D., 1986, Northwestern University; B.A., 1982, Yale University.

Endorsement as “Adoptive Action:”

A Suggested Definition of, and

an Argument for, Justice O’Connor’s Establishment Clause Test

By JOEL S. JACOBS*

Table of Contents

Introduction 30

Justice O’Connor’s Endorsement Test and the Coercion Test. 32

Justice O’Connor’s Endorsement Test 32

Endorsement as a Clarification of Lemon 35

The Coercion Test 37

Problems with O’Connor’s Formulation of

Endorsement 38

Problems with Focusing on Real People 38

Problems with Using the Objective Observer

Standard 40

Response to the Criticism 41

Endorsement as “Adoptive Action” 42

The Actor: Who Cannot Endorse? 43

The Subject-Matter of the Action: What Cannot Be Endorsed? 43

Relationship Between Actor and Subject-Matter:

What Is Endorsement? 48

Explicit Endorsement: Primarily Communicative

Acts 48

Acts That Are Not Primarily Communicative 51

Purpose Defined 52

Problems with the Purpose Prong 52

* Law Clerk, Honorable D. Lowell Jensen, United States District Court for the Northern District of California. J.D., Boalt Hall, 1993; B.A. Wesleyan University, 1989. Professor Jesse Choper was enormously helpful to me while I was writing this article. Rob ert Holland, Howard Shelanski, Professor Mervin Verbitt, Danny Cloherty, and the mem bers of the 1991 Boalt Hall Church and State Seminar also provided useful input.

[29]

The Relevance of the Purpose Prong 55

Determining Whether Primarily Uncommunicative Action is Adoptive 56

The Individual, Religion, and the State

COMMENT

FAILING HONORABLY: BALANCING TESTS, JUSTICE O’CONNOR AND FREE EXERCISE OF RELIGION

“Why aren’t you angry with me?”

“Because I understand you-all sides I think-Harriet, Signor Carella, even my mother.”

“You understand wonderfully. You are the only one of us who has a general view of the muddle So what are you going to do?” said Miss

Abbott.

Philip started, not so much at the words, but at the sudden change in her voice. “Do?” he echoed, rather dismayed…. “I dare say we may fail altogether, but we shall fail honourably ”

”That’s not doing anything!… To fail honourably! To come out of the thing as well as you can! Is that all you are after?”

“Why yes,” he stammered…. “What else is there?”…

“I do expect you to settle what is right and to follow that. Do you want the child to stop with his father, who loves him and will bring him up badly, or do you want him to come to Sawston, where no one loves him, but where he will be brought up well? There is the question put dispassionately….

Settle it. Settle which side you’ll fight on.” 1

INTRODUCTION

THE Supreme Court crafted a broad rule in Employment Division v. Smith2 that the Free Exercise Clause3 of the First Amendment does not

1. E. M. FORSTER, WHERE ANGELS FEAR TO TREAD 146-47 (First Vintage lnt’I Ed. 1992). 2. 494 U.S. 872 (1990).

Together with the Establishment Clause, the Free Exercise Clause states: “Congress shall make no law respecting an establishment of religion or prohibiting the free

Communications and the Law

ROBYN S. GOODMAN*

Supreme Court Justice Sandra Day O’Connor’s First Amendment Approach to Free Expression: A Decade in Review

Robyn S. Goodman (M.A., University of Missouri, Columbia, 1985) is a graduate student in Michigan State University’s Mass Media Ph.D. Program and a graduate teaching assistant in the School of Journalism.

Justice Sandra Day O’Connor is celebrating her 12th anniversary on the Supreme Court. Just over a decade ago, September 21, 1981, O’Connor became the first female Supreme Court Justice in American history. The media fanfare following her nomination and appointment often focused on her gender. Journalists pointed out that former President Ronald Reagan himself admitted that his Justice O’Connor appointment was gender based in order to improve his party’s record with feminists. 1

The author would like to thank Dr. Todd Simon for his legal expertise and guidance and fellow doctoral student Larry Burkum for his comments.

Ed Magnuson, The Brethren’s First Sister, TIME, July 20, 1981, at 8; Ted Gest, First Woman Justice-Impact on Supreme Court, U.S. NEWS & WORLD REP., July 20, 1981, at 20; Jerrold Footlick, A Woman for the Court, NEWSWEEK, July 20, 1981, at 16.

In addition, journalistic coverage often focused on how a female perspective might influence a predominantly white, male Court.2

Two authors, Heck and Arledge, have studied Justice O’Connor’s opinions during her first few terms as a Supreme Court Justice and claim that

INTRODUCTION

Running on a platform that faulted the federal judiciary for favoring the rights of criminal defendants and for tolerating affirmative action, Ronald Reagan became President of the United States in 1981.1 In the election of Reagan, the right wing message of 1964 Presidential candidate Barry Goldwater, endorsing a far-right judicial agenda including positions against civil rights legislation and for greater law enforcement discre tion, enjoyed a new level of social and political acceptability with President Reagan as its vanguard.2

Reagan promised to appoint individuals to the federal judiciary who would “let Congress, the president, and the state legislators do what they want unless it clearly contravenes the precise words of the Constitution – for example, regulate or forbid abortions, adopt prayers in public schools, impose capital punishment, [and] authorize police to engage in [warrantless] wire tapping….”3 In its appointment of federal judges and administrative officials, “[t]he Reagan Administration pursued

1 JAMESM. BURNS ET AL., GoVERNMENTBYTHEPEOPLE 174-75 (1987). Of
course, other components of his campaign, such as economic recovery and military strength (emphasizing President Carter’s weakness as illustrated by the Iranian hostage situation), played a major role in his election. Id. at 504, 445.

2 Id. at 173-75. But cf. Walter F. Murphy & Joseph Tanenhaus, Publicity, Public Opinion, and the Court, 84 NW. U. L. REV. 985, 995-96 (1990) (charting public opinion on court decisions and commenting as a subsidiary matter that “[i]n 1964, Barry Goldwater tried to make the Court’s decisions on criminal justice a critical issue in his Presidential campaign…. In later years, criminal justice became more salient, but the lag was too long to credit or blame Goldwater’s campaign”).

3 BURNS, supra note 1, at 374 (discussing Attorney General Edwin Meese Ill’s remarks entitled “On the Theory of a Jurisprudence of Original Inten tion,” in which he suggested that Reagan wanted only interpretivists in the judiciary. In that speech, he also argued “that the accepted view that the Fourteenth Amendment incorporates most provisions of the Bill of Rights is ‘constitutionally suspect.”‘) (citing Edwin Meese III, Address to the American Bar Association (July 9, 1985), in TODAY JOURNAL, November 15, 1985, at 6, and a contemporaneous criticism of interpretivism by Justice William Brennan, Excerpts of Brennan’s Speech on Constitution, N.Y. TIMES, October 13, 1985, at A36 (Address of Justice William Brennan at Georgetown University (Oct. 12, 1985) (on file at the Supreme Court) [hereinafter Brennan’s Speech]). See generally HERMAN SCHWARTZ, PACKING THE COURTS: THE CONSERVATIVE CAMPAIGN TO REWRITE THE CONSTITUTION (1988) (detailing the Reagan Administration’s efforts to appoint ideologically conservative individuals to the federal judiciary).

The voice of Sandra Day O’Connor

In sekcted areas, the voting and opinion-writing behavior of the Supreme Court’s first woman justice provides scant evidence of a distinctly feminine perspective.

by Sue Davis

Justice Sandra Day O’Connor and colleagues Anthony Kennedy and Clarence Thomas

Justice Sandra Day O’Connor, the first woman to serve on the U.S. Supreme Court, has neither cham pioned women’s rights nor has she engaged in constructing feminist legal theory. From her appointment in 1981 through the 1988 Court term, her voting record closely resembled that of her conservative colleague Wil liam H. Rehnquist. 1 Recently, however, she has become more independent, expressing her differences with Rehn quist in her votes and opinions. Her disagreement with the chief justice was most apparent in the opinions she wrote in two recent decisions involving reproductive rights.2

Bloc analyses using all cases decided by a non-unanimous vote for terms 1981 through 1988 show O’Connor to be more closely allied with Rehnquist than she was with any of the other jus tices, with the exception of the 1986 term during which her voting alliance with Powell and Scalia were stronger. In the more recent terms (1989 through 1991), O’Connor began to ally herself more closely with Kennedy and Souter than with Rehnquist.

134 Judicature Volume 77, Number 3 November-December 1993

Her growing independence, plus the growing body of scholarship known as “different voice” feminism,

JUSTICES HARLAN AND BLACK REVISITED: THE EMERGING DISPUTE BETWEEN JUSTICE O’CONNOR AND JUSTICE SCALIA OVER UNENUMERATED

FUNDAMENTAL RIGHTS

DAVID B. ANDERS*

INTRODUCTION

“Justice O’Connor’s assertion… cannot be taken seriously.”1 Justice Scalia made this statement four years ago, criticizing Justice O’Connor’s refusal to reconsider the Court’s recognition of a fundamental right to abortion. Justice Scalia may equally apply this critique to Justice O’Connor’s most recent theoretical statements on that fundamental rights issue. In Planned Parenthood v. Casey,2 O’Connor surprised many observers3 by joining an opinion upholding the fundamental right to abortion4 that the Court first recognized in Roe v. Wade.5 Five Justices wrote opinions in Casey.6 The joint opinion of Justices O’Connor, Ken nedy, and Souter and the opinion of Justice Scalia consider the theory behind the derivation of unenumerated fundamental rights.7 These opin ions enable analysis of the constitutional theories of Justices Scalia and O’Connor regarding unenumerated fundamental rights derived from the

,i, I would like to thank Professor James E. Fleming for his insights and comments on earlier drafts of this Note, which was originally written for his seminar on constitu tional theory.

1. Webster v. Reproductive Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring).

2. 112 s. Ct. 2791 (1992).

See Ronald Dworkin, The Center Holds!, N.Y. Rev. of Books, Aug. 13, 1992, at 29 [hereinafter Dworkin,

Holding the Center

Sandra O’Connor evolves into major force on Supreme Court

BY DAVID 0. STEWART

Amid the ”Year of the Woman” clamor in 1992, most commentators and pundits ignored Supreme Court Justice Sandra Day O’Connor, argu ably the most influential woman official in the United States.

In 12 years on the Court, O’Connor has gradually emerged as a strong and distinct voice among “the brethren” in a variety of controver sial areas, including abortion rights, affirmative action, freedom of reli gion and federalism.

O’Connor’s prose is not usually flashy or cutting or stirring. Pithy epigrams do not flow regularly from her pen.

Her questioning from the bench tends to be straightforward, without the subtlety or flair of some other justices. In her early years on the Court, some observers thought O’Connor read some of her questions to counsel from a prepared list.

But by wrestling steadily with some of the Court’s most difficult issues, O’Connor has developed care fully thought-out positions that com mand the attention, and often the support, of her fellow justices.

Indeed, many observers have proclaimed O’Connor as a leader of the supposed “new center” (or at least a not-entirely-conservative wing) of the Court.

Her gradual development as a significant force on the Court mirrors O’Connor’s preference for careful and thorough judicial review that does not take significant leaps from case to case. In those respects, her habits of mind and jurisprudence are some times

Society in Transition III: Justice O’Connor and the- Destabilization of the Griggs Principle of Employment Discrimination*

ALFRED W. BLUMROSEN**

Preface

I thank the Women’s Rights Law Reporter for this honor and write this preface to make three points:

1. The Past-The depth and strength of the Women’s Movement was just emerging when this publica tion began. The Reporter reflected the perceptive and persistent interests, personified at Rutgers Law School by Ruth Ginsburg, Annamay Sheppard, Nadine Taub, and the ”second career” women who came to the law school at that time. It has served well as a catalyst and forum for the testing of women’s concerns for the past twenty years. The passage this year of the federal family leave statute is but the most recent manifestation of the resolution and energy generated by the Women’s Movement.

2. The Present-,.Justice O’Connor’s work will now be evaluated in the context of a change in presi dential and possibly legislative policies. Her centerist tendencies will have helped to preserve the elements of affirmative action programs in employment against more conservative justices. Her acceptance of the dis tinction between goals and quotas, her application of the problems of stereotyping, will remain the hallmark o/ h_er work. The Civil Rights Act of 1991 has corrected some of the narrower decisions in which she participated. 1

3. The Future-The male dorr,inated political system has failed families living in the central cities: mainly

A FRESHMAN JUSTICE CONFRONTS

THE CONSTITUTION: JUSTICE O’CONNOR AND THE FIRST AMENDMENT

PAULA C. ARLEDGE, Northeast Louisiana University

and

EDWARD V. HECK, San Diego State University

The question of how a new judge learns to function in the judi­ cial role is one that has long intrigued observers of the courts.

Many studies have explored this question of “freshman socialization,” either focusing in detail on the role learning of a single judge (Howard 1965, 1985; Heck 1979) or seeking general patterns in the experience of groups of new judges (Alpert, Atkins, and Ziller 1979; Wasby 1989). In a study of the socialization of federal district judges, Carp and Vheeler (1965: 390) concluded that the process is “a highly unstructured ad hoc phenomenon” that emphasizes self-learning through informal conversations with colleagues and gradual immer­ sion in the decision-making process.

The role of Supreme Court justice, in particular, seems to be one that must be learned gradually through interaction with experienced colleagues. Even justices with many years of prior judicial experience have testified to the difficulty of learning the role (Frankfurter 1957: 786). Looking back on his own freshman years, Justice Brennan (1973:

484) declared, “I expect that only a Justice of the Court can know . . . how arduous and long is the process of developing the sensitivity to constitutional adjudication that marks the role.”

Studies of the socialization of Supreme Court justices have

Sandra Day O’Connor and Women’s Rights

NADINE TAUB*

The contribution of Sandra Day O’Connor’s jurisprudence to women’s rights is plainly mixed. She has been an important figure in this area even apart from her role in redefining the reach of civil rights legislation and in the abortion controversy. Given the Court’s increasingly conservative bent, she is likely to stand out more and more.

A forward and back “two-step” seems to characterize Justice O’Connor’s efforts in matters touching on gender equality. The steps forward appear in her clear pronouncements that reject, in various contexts, blatant sexual inequalities that typify our past. However, Justice O’Connor’s all too-frequent failure to recognize inequality in more subtle forms – with its roots in old gender roles and stereotypes – leads to a back-step that often seems to cancel out the forward movement. A look at three areas – the legitimacy of stereo types, the burden necessary to justify sex-based classifications, and the ways to interpret the Due Process Clause – will illustrate this duality.

Perhaps the clearest and best known of Jus tice O’Connor’s stances in support of gender equality came out of her strong stand against the single-sex admissions policy adopted by Missis sippi University for Women, which, as of 1982, was the oldest state-supported all female college in the United States.1 The case, Mississippi Uni versity for Women v. Hogan,2 arose in 1979 when Joe Hogan, an otherwise qualified male nurse,

sou

Justice O’Connor and Children and the Law

by

TWILA L. PERRY*

Legal disputes involving children often center around the issues of rights, protection and supervision. Most people probably agree that chil dren do and should have some rights; we all know that children need both protection and supervi sion. The difficulty arises in defining what these terms should mean in particular contexts. There is no consensus as to what rights children should have, or what rights should be accorded to them at particular ages.1 Nor is there consensus as to how we should balance children’s rights with the rights of others, or how we should balance chil dren’s need for supervision with their need to gradually experience the independence they will have as adults. Finally, we do not agree on how much protection children need, who they need to be protected from, or how we should deal with children who have committed serious crimes.

During Justice O’Connor’s tenure, the Supreme Court has decided a number of cases that bear on these issues. Decisions have been ren dered in cases involving students’ rights, juvenile justice, child abuse, children as witnesses in sex ual abuse cases, abortion, education and child support. Professors Sheppard and Roberts have already touched on a few of these areas in their presentations on family law and reproductive rights.2 My discussion, which focuses more specif ically on children’s rights, will address the contri butions of Justice O’Connor in four areas:

AFFIRMATIVE ACTION: WILL JUSTICE O’CONNOR AUTHOR ITS END?

INTRODUCTION

WHEN faced with the issue of whether a governmentally employed race based affirmative action program violates the equal protection clause of the Constitution, the Supreme Court has been sharply divided. This sharp division was illustrated by the fact that the Court did not reach its first majority decision until May 1989, nearly eleven years after the first major decision dealing with a racial affirmative action program.1 Prior to 1989, the Court addressed three major cases dealing with the constitutionality of governmentally imposed affirmative action programs. In two cases, the Court invalidated the programs, and in the other the Court upheld the program.2 Failing to reach a majority, the Court delivered plurality opinions in each case.3 The failure to reach a majority opinion in those cases resulted from the justices’ disagreement on the appropriate judicial standard of review to be applied. 4

The Court reached a majority opinion in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the first majority on the issue since first addressing it in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (invalidating the provision); Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding the provision); Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (invalidating the special admissions program). See also United States v. Par

Sandra Day O’Connor, Conservative Discourse, and Reproductive Freedom

by

DOROTHY E. ROBERTS*

INTRODUCTION

Discussion of Justice O’Connor’s role on the Supreme Court has focused primarily on her opinions concerning the right to abortion. Justice O’Connor has consistently voted with other con servative members of the Court to uphold state restrictions on abortion. She parted company with Justices Rehnquist, White, Kennedy, and Scalia, however, in the critical 1989 decision, Webster v. Reproductive Health Services.1 While her conservative brethren stated that they would vote to overturn Roe or severely modify it, O’Connor wrote a separate opinion to say it was unnecessary to reconsider the constitutional va lidity of Roe and suggested that any future reex amination be done “carefully.”2 Thus, O’Connor’s vote was seen as crucial to retaining women’s constitutional right to choose abortion. That pivotal role may have vanished with Justice Souter’s replacement of Justice Brennan. The Court’s most recent abortion decision, Rust

Sullivan 3, which upheld federal regulations

banning abortion counseling and referral in pub-

licly-funded family planning clinics, reflects the new balance on the Court. O’Connor’s vote in Rust to strike down the regulations, on the statu tory ground that they were not a reasonable inter pretation of Title X,4 was ineffectual in the face of the conservative majority that now included Jus tice Souter. The impotence of her vote in retain ing abortion

Feminist or Foe? Justice Sandra Day O’Connor, Title VII

Sex-Discrimination, and Support for Women’s Rights

BARBARA PALMER*

ABSTRACT: At the tenth anniversary of her ap pointment, it seems fitting to analyze what the first woman to sit on the Supreme Court has done in the area of sex discrimination. As a preliminary exploration of Justice Sandra Day O’Connor’s jurisprudence in this area of consti tutional law, this paper will focus on eight cases brought under Title VII of the 1964 Civil Rights Act as amended by th.e 1978 Pregnancy Dis crimination Amendment. Research on women judges, their attitudes about sex-discrimination and their votes suggests that Justice O’Connor would be more sympathetic to the promotion of women’s rights in sex-discrimination claims. A simple bloc analysis of these eight cases seems to confirm this proposition. A substantive analysis of these cases, however, reveals that Justice O’Connor’s support for women’s rights and feminism is, at best, mixed.

Happily, the last half of this century has witnessed a revolution in women’s legal and political status. My chambers window in Washington, D.C. commands a view of a small brick house, the head quarters of the National Women’s Party and the home of suffragist Alice Paul. It serves as a daily reminder to me that less than seventy years ago women had yet to obtain that most basic civil right, the right to vote.

At the tenth anniversary of her appointment, it

At the Crossroads of Civil Rights: Tension Between the Wartime Amendments in the Jurisprudence of Justice O’Connor

ALFRED SLOCUM*

Justice Sandra Day O’Connor was assured a place in history on the day she was appointed to the United States Supreme Court. She took a seat that no wqman in the history of that august bench had ever been allowed to occupy. However, although she flies on the wings of destiny as the first woman to enjoy such an honor, destiny’s path and destination are now hers to choose. Cer tainly in the area of civil rights much of that path will be determined by how she ultimately inter prets the Equal Protection Clause of the Four teenth Amendment, and how she ultimately rec onciles its language of evenhandedness with the Thirteenth Amendment’s mandate to eliminate the badges and indicia of slavery.

The whole concept of the badges and indicia of slavery requires a close look at the Thirteenth Amendment’s historical antecedents, while the plain language of the Fourteenth Amendment

-does not. It is impossible to eradicate the badges and indicia ofslavery without knowing what they are, and without understanding that the institu tion of slavery was founded on the notion of black inferiority-without, in short, an understanding that slavery was race-based. The claim of black inferiority is at the very heart of racial discrimina tion against blacks. So-called societal discrimina-

tion, manifested by varying degrees of black ex clusion from a host of activities,

O’Connor: A Dual Role – An Introduction

STEPHEN J. WERMIEL *

On September 21, 1981, as the U.S. Senate voted to approve her nomination to the United States Supreme Court, Sandra Day O’Connor lis tened in the Capitol hideaway office of Senator Strom Thurmond, the South Carolina Republican and then chairman of the Senate Judiciary Com mittee. When the vote was over and the tally of 99-0 was announced, she walked the short dis tance to the marble steps outside the Senate wing of the Capitol, looked across the vast plaza and beyond the fiery fall foliage to the Supreme Court, and declared, “I am absolutely overjoyed at the expression of support from the Senate. My hope is that ten years from now, after I’ve been across the street at work for a while they will all be glad that they gave me that wonderful vote.”1

When Justice O’Connor was nominated by President Ronald Reagan, two factors dominated both initial public reaction and subsequent state ments at her confirmation hearings: her historic role as the first woman to serve on the Court, and her views on abortion. Now that ten years have elapsed, these factors still top the list in most eval uations of her. However, this emphasis often ob scures a second distinctive role she has established: that of an independent conservative who influences the Court’s decisions by virtue of her position in the middle of the Court.

This Article examines these dual roles and concludes that they present sharply contrasting images of Justice

Justice O’Connor’s Intellectual Property Opinions: Currents and Crosscurrents*

by

MARCI A. HAMILTON**

On this tenth anniversary of Justice Sandra Day O’Connor’s tenure on the United States Supreme Court, it is fitting, though arguably pre mature, for us to ask the question: how will we remember Justice O’Connor’s contribution to the Court years from now? Justice O’Connor undeni ably has made important and interesting contri butions to the Court’s ongoing debate over issues involving the First Amendment, abortion, and federalism. She has developed a distinctive juris prudence in her Establishment Clause opinions and a striking voice in her affirmative action opinions.1 Probably few realize, however, that in the last several years she also has become a force in the intellectual property area, especially the copy right arena. Justice O’Connor has authored the Court’s major intellectual property opinion for each of the last three terms. Since 1985, she has authored four of the Court’s intellectual property opinions. Given that the Court only grants certi orari for one to two such cases each year, her con tribution accounts for a substantial percentage of the Court’s recent intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers, Inc. v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend4, and

FEDERALISM AND SEPARATION OF POWERS ON A “CONSERVATIVE” COURT: CURRENTS AND CROSS-CURRENTS FROM JUSTICES O’CONNOR AND SCALIA

M. DAVID GELFAND* KEITH WERHAN**

This Essay analyzes the approaches taken during recent Supreme Court Terms by Justices Sandra Day O’Connor and Antonin Scalia to cases involving federalism and separation-of powers issues. These two Justices, who are key actors within the so-called “conservative bloc” on the Court, have been chosen because of their subtle, yet significant, differences respecting these two areas of constitutional law.

After brief biographical sketches of the two Justices, this Essay analyzes recent Supreme Court decisions. In this setting, Justices O’Connor and Scalia are, to some extent, mirror images of each other. Justice Scalia has been especially vocal and aggressive in advocating a formalist approach to separation of powers, while showing much less concern for the protection of federalism values. Justice O’Connor, on the other hand, has championed judicial protection of state and local governments against federal interference, while taking a measured approach to separation issues.

The Essay argues that these differences in the approaches to federalism and separation taken by Justices O’Connor and Scalia are explained, in part, by differences in their backgrounds and methods of constitutional interpretation. In particular, Justice O’Connor seems most comfortable with a contextual approach to these constitutional protections, while

JUSTICE O’CONNOR’S OPINION IN FEIST PUBLICATIONS, INC. v.

RURAL TELEPHONE SERVICE CO.: An Uncommon Though Characteristic Approach*

By MARCI A. HAMILTON**

Justice O’Connor’s developed jurisprudence is most forcefully stated in her Establishment Clause and affirmative action cases.1 Probably few realize that in the last several years she also has become a force in the intellectual property area, especially the copyright arena. In the last three Terms, she has authored the Court’s major intellectual property opinion for that Term. Since 1985, she has authored four of the Court’s intellectual property opin ions. Given that the Court only grants one to two such cases each year, her contribution accounts for a substantial percentage of the Court’s intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend,4 and this year’s Feist Publications, Inc. v. Rural Telephone Service Co.5 cover a wide range of subjects: fair use of unpublished works, preemption of state law affecting pat ents, rights of derivative work assignees following the death of the author before the commencement of the renewal term, and the copyrightability of telephone book white pages. Of course, the full range of this rich assortment of topics cannot fairly be addressed in a 15-minute talk.

MUGWUMP, MEDIATOR, MACHIAVELLIAN, OR MAJORITY?
THE ROLE OF JUSTICE O’CONNOR IN THE
AFFIRMATIVE ACTION CASES
by
THOMAS R. HAGGARD

I am sure that these questions [involving affirmative action]… are going to come back before the Court in a variety of forms. I do believe that litigation in the area of affirmative action is far from resolved, as I see it, and that we will continue to have cases in this area.

Sandra Day O’Connor Nomination Hearings September 9, 1981

It was a prophetic statement from the nominee. Since Justice O’Connor’s appointment in 1981, affirmative action has been back before the Court on ten occasions.2 The cases have generated forty separate opinions and fill over 450 pages of the reporters. Yet, the matter is far from resolved, from either a statutory or a

David W. Robinson, Chair, Professor of Law, University of South Carolina School of Law. B.A., University of Texas, 1964; LLB., University of Texas School of Law, 1967.

1 Nomination of Sandra Day O’Connor: Hearings Before the Committee on the Judiciary, United States

Senate, 97th Congress, 1st Sess. 84 (1981), reprinted in THE SUPREME COURT OF THE UNITED STATES: HEARINGS AND REPORTS ON SUCCESSFUL AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT JUSTICES BY THE SENATE Judiciary Committee, 1916-1981: 1983 Supplement 196 (compiled by R. Mersky & J. Jacobstein 1983) [hereinafter Hearings].

The prior affirmative action cases that she had reference to were: DeFunis v. Odegaard, 416 U.S. 312 (1974); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1977); United Steelworkers v. Weber, 443 U.S. 193 (1979); and Fullilove v. Klutznick, 448 U.S. 448 (1980). In addition, the philosophical and constitutional progenitors of affirmative action had been established in the school desegregation cases, Green v. County School Bd., 391 U.S. 430 (1968), and Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). See generally, L. GRAGLIA, DISASTER BY DECREE: THE SUPREME COURT DECISIONS ON RAcE AND THE SCHOOLS (1976).

2 Metro Broadcasting, Inc. v. FCC, 110 S.Ct. 2997 (1990); Martin v. Wilks, 109 S. Ct. 2180 (1989); City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989); Johnson v. Transp. Agency, Santa Clara County, Cal., 480 U.S. 616 (1987); United States v. Paradise, 480 U.S. 149 (1987); Local 93, Int’! Ass’n of Firefighters v. Cleveland, 478 U.S. 501 (1986); Local 28, Sheet Metal Workers’ Int’! Ass’n v. EEOC, 478 U.S. 421 (1986); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Firefighters Local 1784 v. Stotts, 467 U.S. 56i (i984); Mississippi Univ. for Women v. Hogan, 458 U.S. 7i8 (i982) (not generaiiy regarded as an “affirmative action” case).

Supreme Court Report

O’Connor, J., Concurring

BY ALEXANDER WOHL
Alexander Wohl is a freelance writer in Washington, D.C.

If Justice Oliver Wendell Holmes Jr. was “the great dissenter,” does that make Justice Sandra Day O’Connor “the great concurrer”?

In delicate areas of the law it has become almost commonplace for 5-4 rulings by the Court’s conservative bloc to be embroidered-and often limited-by an O’Connor concurrence. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court’s ideological spectrum. In this sense she has assumed or at least draped over one shoulder the moderate mantle of retired Justice Lewis F. Powell Jr.

Steven Katlett, who clerked for O’Connor two years ago and is now an associate with Jones, Day, Reavis & Pogue in Columbus, Ohio, thinks that “she appreciates [Powell’s] views and for this reason, as well as her general philosophy, she won’t sign on to wholesale revamping of Warren and Burger Court decisions.”

Another former O’Connor clerk states that O’Connor “is concerned about judicial activism, not in a political sense, but in the real sense that the Court should not jump into an issue just because it is controversial, but should try to be somewhat stable and consistent until it is really confronted with a situation where it has to make a change.”

In Pembauer v. City of Cincinnati (475 U.S. 469 [1986]), for

ABORTION POLITICS: WRITING FOR AN AUDIENCE OF ONE

SUSAN R. ESTRICHt AND KATHLEEN M. SULLIVANtt

INTRODUCTION: WEBSTER AND THE ART OF SPIN CONTROL “Spin doctors,” as they came to be known in the last presidential

campaign, practice a not-so-fine art of press manipulation. The goal is generally to make bad news hurt less (e.g., “third in Iowa, my God, we’re delighted; it’s a springboard for New Hampshire!”) and good news help more (e.g., “the real test will be in… [pick state where you’ve already spent twice as much as the opposition]”). The press generally knows the doctors are working (“what’s your spin?” or “spin me” the reporters say), but the process works anyway, particu larly if the spinners can look appropriate in the end (e.g., “aides were plainly pleased with their candidates third place finish “).

Lawyers, of course, have been “spinning” judicial decisions for years. In court, it’s called advocacy. Rarely, though, has a court decision been “spun” as forcefully and effectively as the United States Supreme Court’s decision last Term in Webster v. Reproductive Health Services. 1 The spin was, surprisingly, the same on both sides. The right-to-lifers said victory was at hand. The pro-choicers said the sky was falling.

What was most surprising about this, at least at first glance, was that it bore almost no relation to what had actually been decided in Webster. Which was, according to all sides of the Court, at least, not much. As Justice Blackmun put it, “[£]or today,

Articles

And a Child Shall Lead Them:* Justice O’Connor, The Principle of Religious Liberty and Its Practical Application

Benjamin D. Federt

Introduction

In the more than forty years since the U.S. Supreme Court decided Everson v. Board of Education,1 lawyers, scholars, lay men, and judges have struggled to find a consistent, logical method for interpreting and applying the terse language of the religion clauses of the first amendment.2 Most of the attention (and controversy) has focused on the first of these, known as the establishment clause. After closely examining the cases, opin ions, and articles in this area, only one proposition may be confi-

This title stems from a comment made by Justice Sandra Day O’Connor in her concurring opinion in Wallace v. Jaffree, 105 S. Ct. 2479, 2496 (1985), in reference to her status then as the Court’s junior member.

t Associated with the firm of Shearman & Sterling in New York. B.A., 1981, Boston

University; J.D., 1985, Boston University. The views contained herein, for better and worse, are solely those of the author. I wish to thank Lawrence Sager, Neil Devins, and Robert Feder for their helpful suggestions and comments along the way. Josephine Fra gale provided all secretarial assistance. I wish to express special thanks to Archibald Cox, for his time and invaluable comments on an earlier version of this article. Finally, I must note my deep gratitude to Ira C. Lupu for both his strong support and his insightful critical analyses.

Cop

The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O’Connor

Donald L. Beschle *

The past few years have seen a flurry of litigation involving the reli gion clauses of the first amendment. The Supreme Court has spoken on the subject as frequently as it did during the 1960s, when it created the current legal framework for dealing with claims under the establishment and free exercise clauses. But the recent cases, while numerous, have contributed little to the development of first amendment thought. Although individualjustices have suggested new approaches, the Court has generally confined itself to measuring the facts before it against ex isting analytical yardsticks.

The continued use of a particular framework for analysis may be

taken as evidence of its essential soundness. However, there is reason to believe that in the case of the religion clauses it more clearly reflects the Court’s failure to create satisfactory alternatives, despite the need for such alternatives. The dominant religion clause tests, particularly for the establishment clause, have been easy targets for academic critics and judges alike.

The principal fl.aw in establishment clause thought is the acceptance of “separation” of church and state as the clause’s ultimate goal. Given the ways in which both institutions have evolved in the two centuries since Jefferson’s use of the term, separation of church and state is.simply impossible. An unrealistic goal is

CIVIC VIRTUE AND THE FEMININE VOICE IN CONSTITUTIONAL ADJUDICATION

Suzanna Sherry*

A woman’s writing is always feminine; it cannot help being femi nine; at its best it is most feminine; the only difficulty lies in defm ing what we mean by feminine. 1

W

HAT is true of women’s writing is also true of women’s juris prudence. This article contends that modern men and women, in general, have distinctly different perspectives on the world and that, while the masculine vision parallels pluralist lib eral theory, the feminine vision is more closely aligned with classi cal republican theory, represented in its various forms by Aristotle, Machiavelli, and Jefferson. A feminine jurisprudence, evident, for example, in the decisions of Justice O’Connor, might thus be quite unlike any other contemporary jurisprudence. Emergence of a fem inine jurisprudence might therefore influence whether academic calls for new (or rather recycled) jurisprudential theories based upon our classical republican tradition will ultimately have little impact or will usher in a paradigm shift in moral, political, and

constitutional theory.

American political and jurisprudential theory has long repudi ated its classical republican origins in favor of a highly pluralist liberal vision. Contemporary constitutional interpretation is thus grounded on a thoroughly individualist liberal philosophy. Modern historians, however, have recently refocused attention on the less individualist republican spirit animating

Justice O’Connor and the

First Amendment

1981-84

EDWARD V. HECK*

and PAULA C. ARLEDGE**

With the exception of a presidential election few events can rival the significance for the American legal and political system of the ap pointment of a new Justice to the United States Supreme Court. For the President, a Supreme Court appointment offers an opportunity to reshape the Court “in his own image”1 and perhaps to extend his in fluence far beyond the end of his own tenure in office. 2 For the Court, each change in membership reconstitutes the mix of experi ence, legal :philosophy, and personality that shapes the Court’s colle gial interactions. Moreover, at least on those issues marked by close divisions within the Court, a new appointment enhances the possibil ity that the Court will reverse its prior decisions and set out in new directions.3 Thus, it is to be expected that any appointment to the Supreme Court (or even the prospect of such an appointment) will generate intense public interest. Such interest – and the importance of the appointment – is inevitably heightened when the incumbent President was elected on a platform pledging the use of the appoint-

Associate Professor of Political Science, San Diego State University. B.A., 1968 University of the South; M.A., 1971 University of Virginia; Ph.D., 1978 Johns Hopkins University.

•• Assistant Professor of Government, Nicholls State University. B.A., 1973 Lou isiana Tech University; M.A., 1980; Ph.D., 1983 University

Sandra Day O’Connor – Woman, Lawyer, Justice: Her First Four Terms on the Supreme Court

Barbara C.S. Shea•

INTRODUCTION

Nomination

Four short years ago, few people outside of Arizona had ever heard of San dra Day O’Connor. When President Ronald Reagan nominated her to be the first woman Justice on the Supreme Court in July of 1981, she was catapulted from the relative obscurity of an Arizona Appellate Court judgeship into na tional prominence.1 Almost overnight, her name became a household word.

In offering her nomination to replace retiring Supreme Court Justice Pot ter Stewart,2 Reagan accomplished several political objectives in one swift move. He appeased women’s rights groups who were unhappy with his failure to appoint more women to high-level government positions.8 He disavowed in deed, if not in word, the plank of the Republican National Party in the previ-

*Associated with White & Case, New York City; B.A., 1961, Trinity College; M.A., 1980, Fair field University; J.D., 1985, University of Bridgeport School of Law. The author gratefully ac knowledges the contribution of the UMKC Law Review staff.

Editor’s Note: This Article was written before the recent change in composition on the Su preme Court. On September 19, 1986, the Senate approved the appointment of William Rehnquist as Chief Justice, and of Antonin Scalia as Associate Justice of the United States Supreme Court. THE WEEK IN CoNGREss-CoNGRESSIONAL INDEX, at 1 (CCH Sept. 19, 1986). There has been much

NOTES

JUSTICE SANDRA DAY O’CONNOR: TRENDS TOWARD JUDICIAL RESTRAINT

Sandra Day O’Connor began her tenure on the United States Supreme Court without an extensive record as a jurist.1 The substantive impact O’Connor would make on Supreme Court decisions was uncertain when she took the bench. Prior to her nomination in 1981 to serve as an Associate Justice of the Supreme Court, however, O’Connor favored limiting the jurisdiction of federal courts and enhancing the states’ role in the federal system2. During her confirmation hearings before the United States Senate Committee on the Judiciary, O’Connor testified without reservation con cerning her judicial philosophy.3 In the confirmation hearings, O’Connor confirmed her support of federal judicial restraint.4 According to O’Connor, the Court should not function as a policy making body, but rather should interpret and apply the law.5 In O’Connor’s view, the Court should decide cases on narrow grounds6 and avoid unnecessarily deciding questions of constitutional law.7 O’Connor’s testimony on the proper role of the federal judiciary, however, was not limited to the role of the Court as a branch of the federal government, but extended to the relationship of the federal court system to state courts. In response to questions regarding an article8 written by O’Connor in which she explored the relationship between the state and federal courts, O’Connor clarified her belief in the capacity of state courts

l. See Nomination of Sandra Day

Wide IM>rld

Justice Sandra Day O’Connor and the ”Freshtnan Effect”

Contrary to expectations, the newest justice quickly adapted to her environment and almost immediately began participating fully in the work of the Court.

by John M. Scheb, II and Lee W. Ailshie

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tudents of the judiciary have long been interested in the process by which new appointees are assim

. ilated into the United States Su preme Court.1 Some of the behavioral and biographical literature suggests the existence of a “freshman effect,” that is, a distinct pattern of behavior manifested by neophyte justices. The so-called fresh-

man effect entails behaviors one might expect from a newcomer to any group where the norms of the group are pecul iar to it and, at least initially, unknown to the newcomer. Such behaviors would be characterized by uncertainty, disorien tation and vacillation. J. Woodford How ard has suggested that it took Justice Frank Murphy three terms to overcome

just this kind of problem in adapting to the norms and business of the Supreme Court.2 On the other hand, Heck argues that Justice Brennan quickly overcame the freshman syndr ome. 3

The literature focuses on three aspects of the freshman effect: a subjective aspect manifested in the “feelings of the new justice himself about his new role,” 4 an

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“effect manifested in the behavior of the chief justice and other senior justice with opinion assignment responsibili ties;”5 and, finally, an effect “manifested in the voting behavior

JUSTICE O’CONNOR, THE CONSTITUTION, AND THE TRIMESTER APPROACH TO ‘ABORTION: A LIBERTY ON A COLLISION COURSE WITH ITSELF

RICHARD F. DUNCAN*

When the United States Supreme Court handed down its most re cent ukase on the abortion liberty in Akron v. Akron Center for Repro ductive Health, Inc.,1 I, like so many people concerned with the protec tion of the unborn, initially reacted with despair. The total victory of the abortion ideology over biological reality and human compassion appeared to be reflected in the Court’s intolerance for even the most insignificant restrictions on abortion passed by democratically elected state and local legislat ures.1 Indeed, the Akron case, which struck down a number of pro visions of a local ordinance regulating the performance of abortions in Akron, Ohio, seemed to declare the nearly absolute nature of the abortion liberty (and perhaps the ultimate extension of the culture of the “me gen eration”) when it invalidated, as impermissibly vague under the due pro cess clause of the fourteenth amendment, a provision of the ordinance requiring abortionists to “insure that the remains of the unborn child are disposed of in a humane and sanitary manner.”3 Astonishingly, not only

Associate Professor of Law, University of Nebraska College of Law.

1 462 U.S. 416 (1983). As Professor John T. Noonan, Jr. recently observed, the abortion clinic referred to in the title of the Akron case was “named with Orwellian aptness.” Noo nan, The Root and Branch of

Justice O’Connor: A First Term Appraisal

Robert E. Riggs*

INTRODUCTION

The appointment of Judge Sandra Day O’Connor to the United States Supreme Court was one of the most widely-ac claimed acts of the new Reagan administration. Not yet six months into his term of office, the President fulfilled a campaign promise to nominate a woman to fill one of the first Supreme Court vacancies in his administration.1 The nomination was praised by women’s groups because she was a woman,2 by Republicans because of her sterling political credentials,3 by law yers because of her solid legal background,• by Senators because of her alert, self-possessed responses at the nomination hear ings,11 and even by Democrats because, “If you have to have a Republican on the court… she’s about the best we could hope for.”6 The only discordant notes came from the far right, where

Professor of Law, Brigham Young University. B.A., 1952, M.A., 1953, University of Arizona; Ph.D., 1955, University of Illinois; LL.B., 1963, University of Arizona. The author wishes to acknowledge the research assistance of Garry B. Wilmore.

N.Y. Times, July 8, 1981, at Al, col. 4; N.Y. Times, Oct. 15, 1980, at Al, coL 1.

N.Y. Times, July 8, 1981, at Al, col. 4; The Nomination of Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 278-80 (1981) (statement of Kathy Wilson, National Women’s Political