The Remarkable Legacy of Justice Sandra Day O'Connor

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Jul. 14, 2005

The First Female Justice, But Also So Much More Than That

Every woman in the country owes a debt of gratitude to Justice O'Connor for the way she has carried the mantle of being the first female United States Supreme Court Justice. This was the highest position a woman had yet achieved in American government, and, as the Justice herself is fond of saying, she was honored to be the first, but she sure did not want to be the last female Justice. She does not need to worry.

Justice O'Connor's appointment in 1981 by President Ronald Reagan led some to claim that she would be the "women's" Justice. Her gender was her early defining characteristic - but she made sure it would not be her primary defining characteristic on the Court.

Indeed, I do not think it ever occurred to her to be a Justice for only one-half of the population. Rather, she was at the Court to render her absolutely best judgment case-by-case on the hard issues facing the Court. And that is what she has done.

Never a knee-jerk vote for women litigants, she has doubtless been influenced by her own experiences, including the experience of being a woman in what was, at least when she graduated from law school, a man's world. Famously, stellar grades at Stanford Law School did not save the future Justice from being offered not legal, but legal secretary positions - the ones deemed "fit" for a woman.

Thanks to Justice O'Connor, American women know that there is no one mold that the successful female must fit; there is no one set of positions she must take. O'Connor was about as far from this position of enforced orthodoxy as a woman could be.

An Unusually Powerful Justice: O'Connor Was Frequently the Swing Vote

On the Court, as a practical matter, Justice O'Connor had exceptional power, for she was often the "swing vote" -- meaning that her vote decided many cases when the Court was closely divided. She wore this power well, and modestly, and exercised it prudently.

Those who do not know her well have accused her of intentionally choosing the middle ground, as though she did not make up her mind until after she saw how everyone else was going to vote. Hardly.

Justice O'Connor came onto the Court as a true-blue Goldwater/Reagan Republican - and that was what she remained. The politics of the Republican Party changed around her, but she remained committed to the principles she held when she was nominated - states' rights, separation of church and state, and the rule of law.

As the politics of the new Republican appointees moved rightward, Justice O'Connor held steadfast. No wonder, then, that she ended up in the middle. It was not that she placed herself there - it was that on some issues, the conservatives on the Court separated from her. She - consistent, wise, and prudent - has remained in the reasonable, moderate position she had staked out, even as others have tried to polarize the Court. That has been good for the country, as the dangers of extremism have been avoided.

Justice O'Connor's legacy will be felt deeply in many areas of law, but two are most notable: She contributed very significantly to the Court's renewed interest in federalism, or states' rights, and she helped shape the Court's interpretation of the Establishment Clause.

These arenas show her true colors - she was a Washington outsider, who brought to the Court a sorely needed outsider's perspective.

Federalism: How the Justice's Arizona Experiences Helped Shape Her Views

Justice O'Connor was raised on an Arizona ranch, as she recounts in her memoir, Lazy B: Growing Up on a Cattle Ranch in the American Southwest. Her experiences on the ranch shaped her view of federal/state relations early on.

Water is a precious commodity in the West. In her memoir, O'Connor (with her co-author and brother, H. Alan Day) tells the story of how the ranchers in their area worked out a system to distribute what water they had, so that everyone could be served.

This example of self-organization and autonomy struck O'Connor as all the more significant because after the ranchers had already solved their own problem, bureaucrats from Washington, DC appeared and insisted on a plan of water distribution mandated by federal law -- a plan that was less efficacious and efficient.

No wonder, then, that Justice O'Connor has never lost her rightful disdain for the federal inclination to solve every problem with a cookie-cutter approach that is insensitive to local needs -- or even, at times, plain common sense.

O'Connor's natural Western independence and distrust of the federal government were in synch with President Reagan's small government mandate; he chose to nominate her, seeing that they were like-minded, and on the Court, she did not disappoint his expectations.

When O'Connor was appointed in 1981, the Court had long abandoned any respect for the state-federal distinction that is part of the backbone of the American system. For decades, the Court had treated Congress as a body with plenary power, even though the Constitution clearly enumerates - and thus cabins - Congressional powers.

With a broad mandate - one far beyond what the Constitution should have been interpreted to grant -- Congress did not shrink from usurping the right to legislate on state law issues. Just as the Framers would have predicted, an unchecked branch of the federal government took what power it could.

Until the early 1990s, Justice O'Connor was left to dissent on federalism issues. But then a sea-change occurred, and a majority of the Supreme Court finally re-acknowledged the powerful importance of state governments in checking federal overreaching and unaccountability.

Justice O'Connor's opinion in New York v. United States, for example, is a classic statement of the structural values of federalism: which is worth a substantial quote:

States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government's most detailed organizational chart. The Constitution instead "leaves to the several States a residuary and inviolable sovereignty," The Federalist No. 39, reserved explicitly to the States by the Tenth Amendment.

Liberals (largely law professors) cried out in pain when the first federalism decisions were reached. In no uncertain terms, one after the other accused the conservative Justices voting in favor of states' rights of backing an anti-civil rights agenda, and of using federalism solely as a tool to oppress others. "Strident" cannot begin to describe their tone.

To see the real reason for Justice O'Connor's support for federalism, these professors should simply have re-read the Constitution. As her passionate dissent in Gonzales v. Raich (which I discuss in a previous column), makes clear, Justice O'Connor is - and always has been -- a principled believer in the structural architecture of the Constitution. The position is not political; it's foundational.

In recent years, when the Republicans gained both the Presidency and control of the Congress, liberals learned that federalism is a politically neutral, structural principle - one just as apt to help liberal, as conservative goals.

States' rights gives the minority party - whichever party that may be -- the power to make its case in each of the state legislatures, and thereby provides a vital outlet for their policy preferences.

Lately, liberals have turned to various states to lobby, for instance, for the use of marijuana for medical purposes and assisted suicide. That has led to cases like

Raich - which asked whether a state medical marijuana law could be trumped by the federal drug laws.

Raich was crucial, for it was the case that would test whether this Court had adopted federalism as a cover for serving conservative policy goals, or on a principled basis. Justice O'Connor's principles were not in doubt. But what about the other, supposedly-pro-federalism Justices? Two were a disappointment: Justice Scalia voted with the federal government, as did Justice Kennedy.

But Justice O'Connor held firm. She authored a dissent, joined by Chief Justice Rehnquist and Justice Thomas, stating, "This exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens."

Had it been a matter of policy, Justice O'Connor would have voted otherwise. But since this was a matter of constitutional principle, she voted to leave to each state the power to address the intrastate cultivation and use of marijuana for medical purposes. No other Justice in recent memory has brought so much credit to the Court, by so clearly and consistently separating personal policy preferences, from matters of constitutional principle.

This is federalism at its best, and it should have commanded a majority of the Court in Raich. Sadly, this Administration has shown very little interest in federalism, opting instead to exercise its prosecutorial discretion to attack the states' medical marijuana and assisted suicide laws.

Were the Court to have decided Raich correctly, the 50 states could have experimented simultaneously. Sooner rather than later, we would have learned which regimes worked and which did not. But, alas, the federal government has shut down these experiments on the thin reed that somehow this use hampers its ability to prosecute illegal dealers.

All these considerations show why Justice O'Connor is wise to adhere to the Constitution faithfully, even when it leads to answers she does not like as a matter of policy. Unfortunately, however, it is not at all certain that a conservative chosen by President Bush will share Justice O'Connor's belief in the decentralization of power in the constitutional scheme, or in the importance of preserving a sphere of regulation for the states that may well differ from, and even pose a challenge to, the federal government's larger public policy.

Ironically, this President -- who originally rode into Washington as a former Texas Governor and an outsider -- appears to have lost sight of the federalism values the Constitution holds so dear, as the Republican Party has gained greater control.

The loss of Justice O'Connor's voice, then, is not a loss for policy moderates; that is too simple a view. It is a loss for the Constitution. And it is a loss for whichever party cannot get Congress to hear its policy ideas.

The Establishment Clause: How Justice O'Connor Shaped Doctrine

Another major contribution from Justice O'Connor is her wise molding of Establishment Clause doctrine. She has always kept in mind - as did the Framers - that this is no theocracy, and thus, there is pressing need to accommodate this country's longstanding - and in recent times, mind-bending -- pluralism and diversity.

Once again, as in her early federalism decisions, Justice O'Connor has taken the side of the underdogs, and seen her approach prevail.

Ten years before O'Connor joined the Court, the maligned but recently reaffirmed Lemon v. Kurtzman was decided. Lemon established three factors to examine in cases involving the separation of church and state: First, the government must have a secular purpose. Second, the law may not impermissibly benefit religion. Third, there may be no excessive entanglement between church and state.

Until the recent, twin Ten Commandments cases, which I discussed in a recent column, the first factor -- the purpose -- test lay in disuse. Most of the action involved the second factor - the benefit question.

The second Lemon factor was envisioned in Court precedents as a test of the relationship between the government and the particular religious entity affected. The scope of the inquiry was quite narrow, and it did not take into account how believers beyond that directly addressed by the law would be affected by the government action. Indeed, Establishment Clause doctrine in general did not sufficiently take into account how other believers - or nonbelievers - would be affected, until Justice O'Connor made clear that it ought to.

Justice O'Connor introduced those other believers into the equation with her "endorsement test." She asked this novel - indeed, in light of this country's present diversity, brilliant -- question: How would a reasonable nonadherent feel in the face of the government's challenged action?

For example, suppose the government has chosen to place a crèche, all by itself, in a county courthouse. How, she wondered, would this affect how non-Christians viewed their government?

In her concurrence to County of Allegheny v. ACLU, she offered a persuasive answer: The crèche placed in the halls of justice, in effect, told nonbelievers they were not full citizens. It established a hierarchy of believers, with Christians at the top and others below them - a hierarchy utterly at odds with the First Amendment's commitment to religious diversity and government neutrality.

In another crèche case, however, Justice O'Connor did not see the same harm - for, she reasoned, viewed in context the crèche did not deliver the same message. In Lynch v. Donnelly, when the nativity scene was surrounded by more secular symbols, she found the display permissible. It recognized Christians, but did not elevate them above others, and thus did not send the same message to nonbelievers that a lone crèche would have sent.

As her votes in the recent Ten Commandments cases make clear, Justice O'Connor never wavered from her insistence that the Establishment Clause speaks to the imperative that the government not subjugate religious dissenters, every bit as much as it speaks to the imperative that the government not establish a single state church.

Upon O'Connor's retirement, both nonbelievers and non-mainstream believers have lost a potent advocate for their role in the constitutional polity. Her larger vision embraces them. In contrast, some currently on the Court - most prominently, Justice Scalia -- would give the Court's imprimatur to frankly pro-Christian statements by government that shut nonbelievers and non-mainstream believers out.

An Ambassador for the Rule of Law: Justice O'Connor's Work Abroad

Finally, though many may not be aware of this, Justice O'Connor has been an untiring advocate of the rule of law in countries around the world. She passionately believes in the principle of the rule of law, and has been our most articulate ambassador to those countries who seek to institute representative democracies. She rarely receives credit for this service to our country, but she deserves our deep gratitude for it. Despite her demanding work on the Court, and her devotion to family, she has traveled far and wide to help other countries learn from the success of the American experiment.

There is talk now of "replacing" Justice O'Connor. But in reality, she will be impossible to replace. Choosing a nominee who shares her virtues would be a fitting tribute to her, and a service to the country. Choosing a nominee who would truly be her equal, is an impossible task.

She has been the voice of reason and of independence. She has been the voice of professionalism and courtesy, as well. Despite being battered by both ends of the spectrum, depending on the case, her opinions have been models of restraint and dogged attention to the case at hand.

We were lucky to have her as our first female Supreme Court Justice. But we were even luckier simply to have had her as a Justice at all.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on First Amendment and other constitutional issues can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), has just been published.

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