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

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).

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,

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