Justice O’Connor and the

First Amendment

1981-84

EDWARD V. HECK*

and PAULA C. ARLEDGE**

With the exception of a presidential election few events can rival the significance for the American legal and political system of the ap pointment of a new Justice to the United States Supreme Court. For the President, a Supreme Court appointment offers an opportunity to reshape the Court “in his own image”1 and perhaps to extend his in fluence far beyond the end of his own tenure in office. 2 For the Court, each change in membership reconstitutes the mix of experi ence, legal :philosophy, and personality that shapes the Court’s colle gial interactions. Moreover, at least on those issues marked by close divisions within the Court, a new appointment enhances the possibil ity that the Court will reverse its prior decisions and set out in new directions.3 Thus, it is to be expected that any appointment to the Supreme Court (or even the prospect of such an appointment) will generate intense public interest. Such interest – and the importance of the appointment – is inevitably heightened when the incumbent President was elected on a platform pledging the use of the appoint-

Associate Professor of Political Science, San Diego State University. B.A., 1968 University of the South; M.A., 1971 University of Virginia; Ph.D., 1978 Johns Hopkins University.

•• Assistant Professor of Government, Nicholls State University. B.A., 1973 Lou isiana Tech University; M.A., 1980; Ph.D., 1983 University

CIVIC VIRTUE AND THE FEMININE VOICE IN CONSTITUTIONAL ADJUDICATION

Suzanna Sherry*

A woman’s writing is always feminine; it cannot help being femi nine; at its best it is most feminine; the only difficulty lies in defm ing what we mean by feminine. 1

W

HAT is true of women’s writing is also true of women’s juris prudence. This article contends that modern men and women, in general, have distinctly different perspectives on the world and that, while the masculine vision parallels pluralist lib eral theory, the feminine vision is more closely aligned with classi cal republican theory, represented in its various forms by Aristotle, Machiavelli, and Jefferson. A feminine jurisprudence, evident, for example, in the decisions of Justice O’Connor, might thus be quite unlike any other contemporary jurisprudence. Emergence of a fem inine jurisprudence might therefore influence whether academic calls for new (or rather recycled) jurisprudential theories based upon our classical republican tradition will ultimately have little impact or will usher in a paradigm shift in moral, political, and

constitutional theory.

American political and jurisprudential theory has long repudi ated its classical republican origins in favor of a highly pluralist liberal vision. Contemporary constitutional interpretation is thus grounded on a thoroughly individualist liberal philosophy. Modern historians, however, have recently refocused attention on the less individualist republican spirit animating

Justice O’Connor: A First Term Appraisal

Robert E. Riggs*

INTRODUCTION

The appointment of Judge Sandra Day O’Connor to the United States Supreme Court was one of the most widely-ac claimed acts of the new Reagan administration. Not yet six months into his term of office, the President fulfilled a campaign promise to nominate a woman to fill one of the first Supreme Court vacancies in his administration.1 The nomination was praised by women’s groups because she was a woman,2 by Republicans because of her sterling political credentials,3 by law yers because of her solid legal background,• by Senators because of her alert, self-possessed responses at the nomination hear ings,11 and even by Democrats because, “If you have to have a Republican on the court… she’s about the best we could hope for.”6 The only discordant notes came from the far right, where

Professor of Law, Brigham Young University. B.A., 1952, M.A., 1953, University of Arizona; Ph.D., 1955, University of Illinois; LL.B., 1963, University of Arizona. The author wishes to acknowledge the research assistance of Garry B. Wilmore.

N.Y. Times, July 8, 1981, at Al, col. 4; N.Y. Times, Oct. 15, 1980, at Al, coL 1.

N.Y. Times, July 8, 1981, at Al, col. 4; The Nomination of Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 97th Cong., 1st Sess. 278-80 (1981) (statement of Kathy Wilson, National Women’s Political

Wide IM>rld

Justice Sandra Day O’Connor and the ”Freshtnan Effect”

Contrary to expectations, the newest justice quickly adapted to her environment and almost immediately began participating fully in the work of the Court.

by John M. Scheb, II and Lee W. Ailshie

S

tudents of the judiciary have long been interested in the process by which new appointees are assim

. ilated into the United States Su preme Court.1 Some of the behavioral and biographical literature suggests the existence of a “freshman effect,” that is, a distinct pattern of behavior manifested by neophyte justices. The so-called fresh-

man effect entails behaviors one might expect from a newcomer to any group where the norms of the group are pecul iar to it and, at least initially, unknown to the newcomer. Such behaviors would be characterized by uncertainty, disorien tation and vacillation. J. Woodford How ard has suggested that it took Justice Frank Murphy three terms to overcome

just this kind of problem in adapting to the norms and business of the Supreme Court.2 On the other hand, Heck argues that Justice Brennan quickly overcame the freshman syndr ome. 3

The literature focuses on three aspects of the freshman effect: a subjective aspect manifested in the “feelings of the new justice himself about his new role,” 4 an

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“effect manifested in the behavior of the chief justice and other senior justice with opinion assignment responsibili ties;”5 and, finally, an effect “manifested in the voting behavior

JUSTICE O’CONNOR, THE CONSTITUTION, AND THE TRIMESTER APPROACH TO ‘ABORTION: A LIBERTY ON A COLLISION COURSE WITH ITSELF

RICHARD F. DUNCAN*

When the United States Supreme Court handed down its most re cent ukase on the abortion liberty in Akron v. Akron Center for Repro ductive Health, Inc.,1 I, like so many people concerned with the protec tion of the unborn, initially reacted with despair. The total victory of the abortion ideology over biological reality and human compassion appeared to be reflected in the Court’s intolerance for even the most insignificant restrictions on abortion passed by democratically elected state and local legislat ures.1 Indeed, the Akron case, which struck down a number of pro visions of a local ordinance regulating the performance of abortions in Akron, Ohio, seemed to declare the nearly absolute nature of the abortion liberty (and perhaps the ultimate extension of the culture of the “me gen eration”) when it invalidated, as impermissibly vague under the due pro cess clause of the fourteenth amendment, a provision of the ordinance requiring abortionists to “insure that the remains of the unborn child are disposed of in a humane and sanitary manner.”3 Astonishingly, not only

Associate Professor of Law, University of Nebraska College of Law.

1 462 U.S. 416 (1983). As Professor John T. Noonan, Jr. recently observed, the abortion clinic referred to in the title of the Akron case was “named with Orwellian aptness.” Noo nan, The Root and Branch of