Arizona Republic, Op ed, The Kauffman-Henry Collection

Sandra O’Connor: Pulling a Competent Oar in A Storm-Tossed Boat

Arizona Republic, Op ed, The Kauffman-Henry Collection / By

Nineteen opinions do not a full term make, but so far it looks as if Justice Sandra Day O’Connor will be joining the conservative bloc on the U.S. Supreme Court. The court’s first woman justice has sided with the liberals on only one of the 5-4 divisions to date. A paragraph probably should be inserted to acknowledge the irritation felt by the justices whenever they are thus labeled by the press. The high court is not a kind of judicial bench show, the collies here and the poodles there. Nevertheless, when the court divides narrowly, we generally find the “liberal” Justices Brennan and Marshall on one side and the “conservative” Chief Justice Burger and Justice Rehnquist on the other. Justice O’Connor seems to have suited up with the Burger-Rehnquist team. Through Jan. 21, the court had acted on 21 cases. Justice O’Connor had participated in 19 of these. Of the 19, only two were unanimous decisions, and in these two Justice O’Connor herself spoke for the court. In the other 17, the court fell apart like the one-hoss shay. I haven’t checked the statistics, but I suspect that some sort of record was set at this point in a term of court, when four of five decisions on Jan. 12 were reached by 5-4 divisions. This is not the most congenial court that ever came along. Justice Brennan has succeeded the late Justice Douglas as the most acerbic dissenter on the court. In one of the 5-4 decisions of Jan. 12, this one involving the gift of federal property to the Valley Forge Christian College

Arizona Business Gazette, Newspaper article, The Kauffman-Henry Collection

Civil rights violations restricted to intentional bias, court rules

Arizona Business Gazette, Newspaper article, The Kauffman-Henry Collection / By

WASHINGTON – The Supreme Court has ruled that an 1866 law that protects the rights of blacks is violated only by racial bias that is intentional. The 7-2 decision June 29 strictly limits the scope of a law – now applying to jobs, housing and private schools – that had become a favorite of civil rights lawyers. As a result, the law, which had been viewed as an easier alternative than other forms of federal protection for blacks’ rights, loses some of its potential impact. The court said evidence a policy of a state or local government agency or a private institution had a heavier impact on blacks than on whites is not enough to prove a violation of the law. There must be proof that blacks were treated less well on purpose, the court added. The court also ruled that an organization or institution that does not discriminate intentionally on the basis of race has no legal duty under the law to assure that other groups with which it deals do not discriminate against blacks either. “The immediate evils with which Congress was concerned (after the Civil War) simply did not include practices that were neutral on their face, and even neutral in terms of intent,” Justice William H. Rehnquist said for the majority. The justices had been searching for a test case on the issue for several years, but the earlier cases they had chosen for review ended without a decisive ruling on the law’s reach. The two dissenting justices argued that the 116-yearold law had been adopted by Congress to “blot

Arizona Republic, Op ed, The Kauffman-Henry Collection

Drifting: Unlike the Warren court, the U.S. Supreme Court shows no tilt one way or the other

Arizona Republic, Op ed, The Kauffman-Henry Collection / By

A year ago, at the end of the 1980 term, a consensus developed among observers of the U.S. Supreme Court: The court was drifting. With the end of the 1981 term, that view remains unchanged: The court is still drifting. This past term saw no new landmarks, no great beacons of the law. We had nothing to rank with the Brown case on school segregation, or the Miranda case on the rights of an accused, or the Miller case on pornog-‘ raphy. The court never painted with a broad brush on a big canvas. We wound up with small etchings, tightly framed. A simple explanation – it is not intended to be cynical – accounts for the situation. We pride ourselves on saying that

It is a myth, a shibboleth, a sham. , At the level of the Supreme Court, ours is emphatically not a government 1 of abstract law, but a government of eight very mortal men and one woman. As always, these nine human beings brought to their opinions the accumulated convictions, prejudices and attitudes of their lifetimes. Members of the court detest the journalist’s practice of putting them in ideological pigeonholes, but the custom gains in understanding more than it loses in precision. With few exceptions, the three conservatives (Burger, Rehnquist and O’Connor) came down on the side of judicial restraint and narrow construction. The three liberals (Brennan, Marshall and Blackmun) tended toward activism and expansion. The three centrists (White, Powell and Stevens) tilted the teeter-totter first here, then there. In a recent

Arizona Republic, Editorial, The Kauffman-Henry Collection

O’Connor: The Individual often does make a difference in society

Arizona Republic, Editorial, The Kauffman-Henry Collection / By

“In every age, there comes a time when leadership suddenly comes forth to meet the needs of the hour. And so there is no man who does not find his time, and there is no hour that does not have its leader.” At first blush, this ancient saying suggests merely that there will always be a Moses when a Moses is needed. Yet, on further examination of the words, “there is no man who does not find his time,” we realiw that the message conveyed is that each of us, in our own individual lives and the crises we face, will have a time to lead. Whether we will lead only a family, or a handful of friends, and where and how we will lead, is up to us, our views and our talents. But the hour Vlill come for each of us, and, became we know this, we surely must also know that the very nature of humanity and society, regard~ss of its size or complexity, will alvays turn on the act of the individ1al and, therefore on the qualityof that individual. My ecperience in the executive, legislati,e, and judicial branches of governnent and my position on the Suprem, Court all point to this conclusim: an informed, reasoned effort ly one citizen can have dramatc impact on how someone, like a ~gislator, will vote and act. When ‘ was in the legislature, one person, sometimes with a direct interes in the matter, sometimes withou one, would on occasion persuale me by the facts, by the clarityof the explanation and by the rasoning, to do something which never would otherwise have done. have been at caucuses when

Arizona Business Gazette, Newspaper article, The Kauffman-Henry Collection

O’Connor: After a year, showing a very conservative bent

Arizona Business Gazette, Newspaper article, The Kauffman-Henry Collection / By

Sandra Day O’Connor, after her first term as a Supreme Court justice, is a solid member of the court’s conservative wing. In the session that ended July 2, Mrs. O’Connor voted to: v Give local school boards unlimit.ed power to remove books they find offensive from high school and junior high libraries. Her side lost. v Let Washington state voters bat a school busing plan voluntarily adopted by the city of Seattle to achieve racial balance. Again, she was on the losing end. v Allow states to execute “non-triggerman” ‘ criminals whose crimes resulted in a death even though they did not intend to take part in a killing. Another minority view. Mrs. O’Connor’s overall voting record indicates just how much she has joined the court’s conservative side since she was awom in last September. In the 31 cases decided by 6-4 votes – rulings that generally indicate the thorniest disputes between liberals and conservatives – Mrs. O’Connor sided with ultra-conservative justice William H. Rehnquist 27 times. She sided only four times in 5-4 decisions with Justice William J. Brennan, leader of the court’s liberals. Only once were the three justices on the same side in a 6-4 ruling, a relatively minor case. In other key cases during the just-complet.ed term, the 52-year-old Mrs. O’Connor voted to: .,,,, Bar all lawsuits seeking monetary damages from U.S. presidents for misconduct in office. Her side prevailed. .,,,, Deny illegal alien children a free public school education. A; minority view. v

Law review article

Impeachment Calls and Death Threats: Assessing Criticisms of the Death Penalty Jurisprudence of Justices Kennedy and O’Connor

Law review article / By

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

Law review article

The Future of Religious Pluralism: Justice O’Connor and the Establishment Clause

Law review article / By

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

Law review article

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?

Law review article / By

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