JUDGES STRUCK BY LIGHTNING: Some

Observations on the Politics of Recent Supreme Court Appointments

L.A. Powe, Jr.

Justice Sandra Day O’Connor observed that President Ronald Reagan’s nomination of her to the Supreme Court “was a great surprise to the nation but an even greater surprise to me.”1 Quite. She was not even a member of the Supreme Court Bar, had never seen a Supreme Court argument, and, although a judge (and previously a state legislator), was not even on her state’s supreme court.2 Obscure might be an understatement. Quoting her colleague Lewis Powell, a quintessential centrist on the Court, she agreed that “being appointed to the Court was a little like being struck by lightning in both the suddenness and the improbability of the event.”3

I.

We can guess what being struck by lightning means to the judge who has been hit. The more relevant inquiry is what, if any, meaning it has for the nation. To explore this inquiry, a very brief detour is necessary to discuss a political phenomenon that emerged around O’Connor’s nomination. Ever since Barry Goldwater’s attack on the Court during his 1964 presidential campaign as the branch “least faithful to the constitutional tradition of limited government, and to the principle of legitimacy in the exercise of power,” Republicans and Democrats have split on the Court.4 But throughout the 1970s, the parties also split on the meaning of the Constitution, a split very much apparent in 1980 and cemented four years later.5

A WISE JUSTICE, AND A GREAT Boss

Michelle T. Friedland*

“Thank you very much for coming,” Justice O’Connor said as I entered her chambers to interview for a clerkship. “I’m so sorry to have asked you to make the trip all the way out here from Stanford.”

Apparently Justice O’Connor didn’t realize that this was the most exciting moment of my life, one for which I would have gladly traveled anywhere. “But it is very important that I meet potential clerks in person, because each of my clerks becomes part ofmy family.” She then asked me as many questions about my family and hobbies as she did about my legal views.

I served as one of four clerks to Justice O’Connor during October Term, 2001, following my graduation from Stanford Law School and a year-long clerkship on the D.C. Circuit. I quickly learned that Justice O’Connor was serious about treating her clerks like family. She integrated us not only into the work of the Supreme Court but also into many other aspects of her rich life.

My days typically began at 7:40 A.M., when I met Justice O’Connor and her other female clerk in her chambers. Together we walked upstairs to the women’s locker room and changed into gym clothes for the exercise class the Justice hosted on the fourth-floor basketball court, often referred to as “the highest court in the land.” There, we joined about fifteen of her female friends for an hour of Pilates or aerobics. Many of Justice O’Connor’s friends wore T shirts with such slogans as “Exercise Defends

TRIBUTES

WILLIAM REHNQUIST AND SANDRA DAY O’CONNOR: AN EXPRESSION OF APPRECIATION

Anthony M. Kennedy*

Thank you for the invitation to be here to honor Sandra O’Connor and the memory of the late William Rehnquist. We meet at Stanford, the place that did so much to shape their lives and careers. The years at Stanford gave them their skills as scholars and professionals. Those years, too, helped them find their self-definition, their sense of identity. At Stanford, they continued to shape their ethical frameworks and their beliefs that the individual can, and must, contribute to the progress of a free society. It is a privilege to discuss not just one but two great Justices, here at the University that means so much to Justice O’Connor and that Chief Justice Rehnquist ever admired.

The legal academy, the Bar, historians, and the American people will study their decisions and, in good time, assess their place in the history of the Court and the history of the law. It will be for later generations to find insights more penetrating, judgments more balanced than are possible for us; but it is appropriate for you to begin the dialogue.

My remarks are a brief introduction to your discussions and an expression of appreciation for your undertaking to study the work of my late former colleague and true friend, Chief Justice Rehnquist, and my dear friend, and still esteemed senior colleague, Justice O’Connor.

To begin, let me ask you to match this description to a famous Justice: On

PROBLEMS WITH MINIMALISM

Cass R. Sunstein*

Much of Justice Sandra Day O’Connor’s work on the Supreme Court embodies a commitment to judicial minimalism, understood as a preference for narrow rulings, closely attuned to particular facts. In many contexts, however, that commitment is hard to justify, simply because it imposes severe decisionmaking burdens on others and may well create more, rather than fewer, errors. For this reason, a general preference for minimalism is no more defensible than a general preference for rules. The choice between narrow and wide rulings cannot itself be made by rules or even presumptions; it requires a case-by-case inquiry. The argument is illustrated throughout this Article with reference to the problem of affirmative action, where Justice O’Connor’s preference for particularity resulted in the imposition of a constitutional mandate on admissions offices that is not simple to defend in principle. In some contexts, however, narrow rulings are indeed preferable, in large part because they give flexibility to politically accountable officials. Justice O’Connor’s minimalism is best understood as reflecting a belief that in difficult cases at the frontiers of constitutional law.judges would do best to avoid firm rules that they might come to regret.

INTRODUCTION 1900

AFFIRMATIVE ACTION, RULES, AND TRANSPARENCY 1903

RULES, STANDARDS, AND MINIMALISM 1907

Minimalism and Its Discontents 1908

The Case for Rules? 1910

In defense of rules 1910

Meta-questio

JUSTICE O’CONNOR AND THE RULE OF LAW

Eric J. Segall*

INTRODUCTION 107

‘ THE RULE OF LAW 109

JUSTICE O’CONNOR’S DECISIONS AND THE RULE OF LAW 112

Allen v. Wright 112

New York v. United States & Printz v. United States 115

Abortion, Affirmative Action, and Establishment 118

Abortion 118

Affirmative Action 120

Establishment of Religion 122

A Few Other Examples 129

N. CONSTITUTIONAL DECISIONMAKING AND THE

RULE OF LAW 134

CONCLUSION 137

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. This is what prevents judges from ruling now this way, now that – thumbs up or thumbs down – as their personal preferences dictate.1

INTRODUCTION

In the wake of Justice O’Connor’s retirement from the Court, there will undoubtedly be a flurry of books and articles devoted to the first female

* Professor of Law, Georgia State College of the Law. Versions of this Essay have been presented at a faculty workshop at American University, and at the 2004 Conference of the Southeastern Association of American Law Schools. I would also like to thank Sandy Levinson, Steve Kaminshine, Tom McCoy, Neil Kinkopf and Mark Tushnet for helpful comments on a previous draft.

McCreary County v. ACLU, 125 S. Ct. 2722, 275 l (2005) (Scalia, J., dissenting).

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108 UNIVERSITY OF FLORIDA JOURNAL OF LAW & PUBLIC POLICY [Vol. 17

Justice and her many

Glen D. Nager*

I had the honor of serving as a judicial law clerk to Sandra Day O’Connor during the October 1983 Term. She was then and is now a Justice who revered the Supreme Court and who took her responsibil ity to interpret the law impartially with the utmost seriousness. Given that I am a former law clerk owing the Justice and the Court the con tinuing obligations of confidentiality and discretion, I feel obliged to eschew further comment on her jurisprudence, judicial craftsmanship, and impact on the law and the Court. However, no tribute to Sandra Day O’Connor, or “SOC” as her law clerks affectionately call her, would be complete without a recognition of her admirable nonjudicial personae. So I am pleased to accept the Review’s invitation to provide firsthand reflections about a Justice who remains a personal and treas ured friend to so many.

One of SOC ‘s nonjudicial personae is revealed in her love of mar riage and devotion to it. Her half-century romance with John J. O’Connor, or “JOC” as we call him, is enhanced by a mutual love af firmed daily, and by a lifelong commitment that clearly influences all of SOC’s priority decisions. But also prominent on SOC’s romantic record are her tireless efforts to play matchmaker for others – and particularly for her own law clerks. For some, she actively seeks ideal partners. For others, she just tries to seal the deal. In my case, I had already found the “perfect woman”; but, to SOC ‘s dismay,