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

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,

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

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

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

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

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

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.

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The Relevance of the Purpose Prong 55

Determining Whether Primarily Uncommunicative Action is Adoptive 56

The Individual, Religion, and the State