IDEOLOGUE TO PRAGMATIST?: Sandra Day

O’Connor’s Views on Abortion Rights

Stewart Jay

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

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

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

JUSTICE O’CONNOR’S RACE AND GENDER JURISPRUDENCE *

Paul Bender** and Chelsea Sage Durkin***

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

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

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

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

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

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

SUPREME COURT REPORT

Death for Rape, an Echo of the Past

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

I

BY DAVID G. SAVAGE

TWAS 44 YEARS AGO THIS SPRING THAT THE STATE

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

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

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

U.S. 584.

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

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

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

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

Richard L. Barnes*

INTRODUCTION

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

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

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

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

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

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

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

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

STEVEN H. HOBBSt

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

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

TABLE OF CONTENTS

INTRODUCTION 100

JUSTICE O’CONNOR’S CANONS