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