Law review article

Supreme Court “Majoritizing”: What Justice O’Connor and Justice Kennedy Can Tell Us About the Near Future

Law review article / By

EXCERPT:

I. INTRODUCTION

The number five is one of the most important numbers in the United States: the number of votes needed for a majority on the United States Supreme Court. Few justices in recent history have more frequently been, or are more adept at becoming the fifth vote than Justice O’Connor. Even fewer justices have found their vote to be as impactful on American life and law as Justice O’Connor. This paper will examine her legacy in that role by comparing her to another “frequent fifth,” Justice Kennedy, and in so doing, attempt to reveal some insight, however small, as to how a justice becomes “the fifth vote.”

II. Biographical Background

The back-story of a justice can yield insights into the possible origins of their jurisprudential inclinations, such as Justice Scalia’s father’s academic career as translator and linguist1 being a source of his originalist and textcentric approach to constitutional interpretation. Though such biographical explorations risk caricaturizing a justice’s jurisprudence as primarily the product of circumstance, and belittles the slow formation of complex legal theories. Examining a justice’s biographical background can give valuable insight into how he or she maneuvers the interpersonal landscape of the Court in order to further their substantive jurisprudence. The pursuit of a majority is more the product of one’s upbringing, experience, and worldview than the substantive jurisprudence end a particular justice is working toward.

A.

Law review article

Influences and Influence: Justice Sandra Day O’Connor and Constitutional Doctrine

Law review article / By

Articles

INFLUENCES AND INFLUENCE: JUSTICE SANDRA DAY O’CONNOR AND CONSTITUTIONAL DOCTRINE

Kenneth M Murchison

INFLUENCES 392

Gender: The First Female Justice 394

Politics: A Reagan Republican from the West 398

Legislative Experience: A Practical Politician 400

Religion: An Episcopalian 403

Judicial Experience: A State Court Judge 405

INFLUENCE AS A MEMBER OF THE COURT 410

Federalism 410

Separation of Powers 414

Individual Rights 417

Substantive Due Process 418

Equal Protection 421

Freedom of Religion 428

Freedom of Speech 434

Takings 444

Dissents: Failed Attempts to Influence 447

INFLUENCE ON THE FUTURE 452

CONCLUSION 460

Sandra Day O’Connor was both the first woman appointed to the United States Supreme Court and the first justice that President Ronald Regan appointed. She served for nearly a quarter century and earned a reputation as a centrist on a Court that was often closely divided. As a result, she was frequently a member of the Court’s majority in cases with narrow majorities, and her views often defined the reach and limits of the Court’s rulings.

391

This article offers an assessment of Justice O’Connor’s impact on constitutional doctrine from the perspective of a decade after her retirement. After a brief biographical summary, it describes how five factors-gender, legislative experience, religion, and judicial experience-influenced her judicial decisions. It then surveys her impact on constitutional doctrine while she was a member of the Court

Law review article

Sandra Day O’Connor, Abortion, and Compromise for the Court

Law review article / By

SANDRA DAY O’CONNOR, ABORTION, AND COMP’ROMISE FOR THE COURT

INTRODUCTION

The abortion controversy is the product of many issues. Legally, is there a fundamental right to privacy for a woman; is the fetus a person within the meaning of the fourteenth amendment due process clause; legally and morally, is abortion murder; socio-economically, should federal funds be used for abortions; if the abortion right is overturned, is it unjust that the rich will be able to secure safe, ille gal abortions, while the poor will again be forced into back-alley abortions?

These are all important questions; however, the most controversial aspects of the abortion right may be the medically based criteria set down in Roe v. Wade,1 establishing the right and standards for abortion.

Justice Sandra Day O’Connor, in a scathing dissent to Akron v. Akron Center for Reproductive Health, Inc.,2 said, “The Roe frame work… is clearly on a collision course with itself.”3 It is her opin ion that the guidelines for regulation of abortions and the parame ters of the right were illogically and improperly decided. Because of her views, she has become the hope of the factions that vow to over turn Roe v. Wade and the right to choose abortion.”

But where does Sandra Day O’Connor really stand on this point? As the most articulate dissenter on abortion and the only woman on the Court, her position is unique. By reason of these distinctions, as the abortion right struggles to remain alive, she will become the

Op ed, Phoenix Gazette, The Kauffman-Henry Collection

O’Connor Slows Pace in Capital

Op ed, Phoenix Gazette, The Kauffman-Henry Collection / By

WASHINGTON – Supreme Court nominee Sandra D. O’Connor of Phoenix slowed her round of courtesy visits with members of Congress to a walk today. On her schedule were only seven calls, two of which were with fellow Arizonans. The first stop on Capitol Hill was a meeting with Sen. John C. Stennis, D-Miss. Visits with Sen. James A. McClure, R-Wyo., and Sen. Howard Metzenbaum, D-Ohio, followed. THE THREE men expressed their appreciation for her visits, and each posed for pictures with her outside his office. “She’ll be a welcome addition to the Supreme Court,” Metzenbaum said after meeting Judge O’Connor. He said they did not discuss abortion but did discuss areas of civil rights, civil liberties and antitrust. He said he was impressed, “particularly by her independence of spirit and her feistiness.” FOR LUNCH, Mrs. Dennis DeConcini, wife of the Tucson Democratic senator, was hostess in a private Capitol dining room, where wives of other Senate Judiciary Committee members met the justicedesignate. Judge O’Connor has been accompanied on her three-day tour of congressional offices by White House aides and Assistant Attorney General Robert McConnell, who formerly practiced law in Phoenix. This afternoon Judge O’ Connor was to visit Sen. Arlen Specter, R-Pa., and Arizona Democratic Reps. , Bob Stump and Morris K. Udall. BOTH ARIZONANS have offered strong endorsements of Judge O’Connor’s nomination as the first woman to serve on the Supreme Court. Her last call of the day could prove to

Law review article

Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge

Law review article / By

TRENDS IN THE RELATIONSHIP BETWEEN THE FEDERAL AND STATE COURTS FROM THE PERSPECTIVE OF A STATE COURT JUDGE

SANDRA D. O’CONNOR*

We live in an imperfect world. Most people would agree our court system suffers from some of that imperfection. We appear to be the only major country with two parallel court systems. Among other things, such an arrangement affords most convicted criminal defendants opportunities for multiple post-conviction appellate court reviews. The labyrinth of judicial reviews of the various stages of a state criminal felony case would appear strange, indeed, to a rational person charged with devising an ideal criminal justice system. Changes and improvements come very slowly, if at all, and, more often than not, incrementally, in small case by case adjustments.

State courts, which annually process the great majority of all civil and criminal cases filed in this country, handle their workload for the most part without a great deal of concern about the federal court system which exists alongside them. Trial Judges in both systems are busy hearing cases. Most state court trial judges do not have time to think about what jurisdiction the federal courts should have; they simply take each case assigned and do the best they can with it, whether or not it involves a federal legal question. On the other hand, state appellate court Judges occasionally be come so frustrated with the extent of federal court intervention that they simply abdicate in favor of the federal

Law review article

Thurgood Marshall: The Influence of a Raconteur

Law review article / By

Thurgood Marshall:

The Influence of a Raconteur

Sandra Day O’Connor*

I was fresh out of Stanford Law School, working as a civilian attorney in the Quartermaster Market Center, the day Thurgood Marshall changed the nation. He had been chipping away at the building blocks of a separatist society long before 1954, of course, but it was through Brown v. Board of Education1 that he compelled us, as a nation, to come to grips with some of the contradictions within ourselves.

Like most of my counterparts who grew up in the Southwest in the 1930s and 1940s, I had not been personally exposed to racial tensions before Brown; Arizona did not have a large African American population then, and unlike southern States, it never adopted a de jure system of segregation. Although I had spent a year as an eighth grader in a predominately Latino public school in New Mexico, I had no personal sense, as the plaintiff chil dren of Topeka School District did, of being a minority in a society that cared primarily for the majority.

But as I listened that day to Justice Marshall talk eloquently to the me dia about the social stigmas and lost opportunities suffered by African American children in state-imposed segregated school, my awareness of race-based disparities deepened. I did not, could not, know it then, but the man who would, as a lawyer and jurist, captivate the nation would also, as colleague and friend, profoundly influence me.

Although all of us come to the Court with our own personal

Law review article

Habeas Corpus and Judicial Federalism: Some Thoughts on Finality, Comity, and Error Correction

Law review article / By

SANDRA DAY O’CONNOR

Habeas Corpus and Judicial Federalism: Some Thoughts on Finality, Comity, and Error Correction

Unlike most other nations of the world, the United States has chosen to administer justice through a dual system of state and federal courts. There is an inevitable tension inherent in our ”indestructible union of indestructible states.” 1 The balancing of state and federal interests within the federal system is never static but requires constant and flexible accommodation of the often conflicting interests. In Younger v. Harris (1971), Justice Hugo Black described the essence of what he called ”Our Federalism”:

The concept does not mean blind deference to ”States’ Rights ‘ any more than it means centralization of control over every important issue in our national government and its courts. The framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both state and national Governments, and in which the national government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.

Any realistic picture of judicial federalism must acknowledge the primary role of the states in our federal system of government. The federal government is one of specified, enumerated powers; all powers not given to the federal government in the Constitution are given to the states and to the people. The generalized police power, that critical governmental authority

Law review article

Foreword: First Women: The Contribution of American Women to the Law

Law review article / By

FOREWORD

FIRST WOMEN: THE CONTRIBUTION OF AMERICAN WOMEN TO THE LAW

SANDRA DAY O’CONNOR*

This issue of the Valparaiso University Law Review is devoted to the contributions of some “firsts” among women in the law. Each of these women was the first to engage in a wide variety of activities previously thought to be impossible or improper for women to do. All of us owe a great debt of gratitude to our determined predecessors who, despite daunting obstacles, made possible the professional and other opportunities women lawyers enjoy today. As another woman who was the first to serve in a position formerly held only by men, I can appreciate with particular sensitivity the strength of character and the determination these adventurous women demonstrated in pursuing their career goals against far more formidable barriers.

These earlier legal pioneers faced a profession and a society that espoused what has been called “the cult of domesticity,” a view that women were by nature different from men, suited only for motherhood and homelife- compassionate, selfless, gentle, moral, and pure. Their minds were attuned to art and religion, not logic. Men, on the other hand, were thought to be fitted by nature for competition and intellectual discovery in the world-battle hardened, shrewd, authoritative, and tough-minded. A male attorney of the period commented, “[A] woman can’t keep a secret, and for that reason if no other, I doubt if anybody will ever consult a woman lawyer.”1

The four women

Interview, TV appearance

Interview with Bill Moyers – “In Search of the Constitution”

Interview, TV appearance / By

Bill Moyers
Justice O’Connor will not discuss the controversial issues that keep coming to the court. abortion. Above all, she says as do other justices, that it would be improper for her to do so. But one of her major opinions on the court has caused alarm amongst supporters of abortion, about how she might rule on future cases. During her confirmation hearings in 1981, she had this to say,

Sandra Day O’Connor
I do not believe that as a nominee, I can tell you how I might vote on a particular issue, which may come before the court or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the court again,

Bill Moyers
triggered a stormy controversy with the decision on Roe vs wade in 1973. ruling that a woman has the fundamental right to an abortion during the first three months of pregnancy, the first trimester, the state could only outlaw abortion altogether in the third trimester when the fetus is considered viable when it can live outside the womb. In 1983, in a case from Akron, Ohio, the court reaffirmed Roe versus Wade, it struck down regulations passed by the City Council that would make abortions more difficult to obtain. The court has never said that you may not regulate abortion in the interest of the life or the health of the unborn child has just never faced that question. Feminists leaders claimed another victory for women.

Sandra Day O’Connor
And I think what they were hoping to that as a precedent for