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,

sou

O’Connor: A Dual Role – An Introduction

STEPHEN J. WERMIEL *

On September 21, 1981, as the U.S. Senate voted to approve her nomination to the United States Supreme Court, Sandra Day O’Connor lis tened in the Capitol hideaway office of Senator Strom Thurmond, the South Carolina Republican and then chairman of the Senate Judiciary Com mittee. When the vote was over and the tally of 99-0 was announced, she walked the short dis tance to the marble steps outside the Senate wing of the Capitol, looked across the vast plaza and beyond the fiery fall foliage to the Supreme Court, and declared, “I am absolutely overjoyed at the expression of support from the Senate. My hope is that ten years from now, after I’ve been across the street at work for a while they will all be glad that they gave me that wonderful vote.”1

When Justice O’Connor was nominated by President Ronald Reagan, two factors dominated both initial public reaction and subsequent state ments at her confirmation hearings: her historic role as the first woman to serve on the Court, and her views on abortion. Now that ten years have elapsed, these factors still top the list in most eval uations of her. However, this emphasis often ob scures a second distinctive role she has established: that of an independent conservative who influences the Court’s decisions by virtue of her position in the middle of the Court.

This Article examines these dual roles and concludes that they present sharply contrasting images of Justice

Justice O’Connor’s Intellectual Property Opinions: Currents and Crosscurrents*

by

MARCI A. HAMILTON**

On this tenth anniversary of Justice Sandra Day O’Connor’s tenure on the United States Supreme Court, it is fitting, though arguably pre mature, for us to ask the question: how will we remember Justice O’Connor’s contribution to the Court years from now? Justice O’Connor undeni ably has made important and interesting contri butions to the Court’s ongoing debate over issues involving the First Amendment, abortion, and federalism. She has developed a distinctive juris prudence in her Establishment Clause opinions and a striking voice in her affirmative action opinions.1 Probably few realize, however, that in the last several years she also has become a force in the intellectual property area, especially the copy right arena. Justice O’Connor has authored the Court’s major intellectual property opinion for each of the last three terms. Since 1985, she has authored four of the Court’s intellectual property opinions. Given that the Court only grants certi orari for one to two such cases each year, her con tribution accounts for a substantial percentage of the Court’s recent intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers, Inc. v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend4, and

Justice O’Connor and Children and the Law

by

TWILA L. PERRY*

Legal disputes involving children often center around the issues of rights, protection and supervision. Most people probably agree that chil dren do and should have some rights; we all know that children need both protection and supervi sion. The difficulty arises in defining what these terms should mean in particular contexts. There is no consensus as to what rights children should have, or what rights should be accorded to them at particular ages.1 Nor is there consensus as to how we should balance children’s rights with the rights of others, or how we should balance chil dren’s need for supervision with their need to gradually experience the independence they will have as adults. Finally, we do not agree on how much protection children need, who they need to be protected from, or how we should deal with children who have committed serious crimes.

During Justice O’Connor’s tenure, the Supreme Court has decided a number of cases that bear on these issues. Decisions have been ren dered in cases involving students’ rights, juvenile justice, child abuse, children as witnesses in sex ual abuse cases, abortion, education and child support. Professors Sheppard and Roberts have already touched on a few of these areas in their presentations on family law and reproductive rights.2 My discussion, which focuses more specif ically on children’s rights, will address the contri butions of Justice O’Connor in four areas:

AFFIRMATIVE ACTION: WILL JUSTICE O’CONNOR AUTHOR ITS END?

INTRODUCTION

WHEN faced with the issue of whether a governmentally employed race based affirmative action program violates the equal protection clause of the Constitution, the Supreme Court has been sharply divided. This sharp division was illustrated by the fact that the Court did not reach its first majority decision until May 1989, nearly eleven years after the first major decision dealing with a racial affirmative action program.1 Prior to 1989, the Court addressed three major cases dealing with the constitutionality of governmentally imposed affirmative action programs. In two cases, the Court invalidated the programs, and in the other the Court upheld the program.2 Failing to reach a majority, the Court delivered plurality opinions in each case.3 The failure to reach a majority opinion in those cases resulted from the justices’ disagreement on the appropriate judicial standard of review to be applied. 4

The Court reached a majority opinion in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the first majority on the issue since first addressing it in Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).

Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (invalidating the provision); Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding the provision); Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) (invalidating the special admissions program). See also United States v. Par