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Part One: Justice O'Connor As A Jurist

Thursday, Jun. 07, 2001

In Part One of this two-part series on Supreme Court Justice Sandra Day O'Connor, Cardozo law professor and former O'Connor Supreme Court clerk Marci Hamilton discusses the Justice's career as a jurist. In Part Two, to appear on June 21, Professor Hamilton will discuss the larger role that Justice O'Connor has played as the first female Justice and as an ambassador for the rule of law. -- Ed.

For twenty years, Justice Sandra Day O'Connor has served the United States with distinction on the Supreme Court. In her time on the Court, she has established herself as one of the most able and interesting jurists in living memory.

As a jurist, Justice O'Connor has refused to impose a "grand Unified Theory," her own phrase, on each area of the law. Rather, in each case, she has sought to apply the law carefully to the particular facts before the Court.

In contrast to Justice Scalia, who is more inclined to look for a "bright line rule" to decide categories of cases, Justice O'Connor is completely wedded to the Constitution's "case and controversy" requirement. That requirement forbids "advisory opinions" on the constitutionality of possible future government acts, and limits federal judges to deciding only the cases in front of them.

Although Justice O'Connor is a lifelong Republican, her jurisprudence does not simply mirror the new litmus tests for Republican loyalty. Rather, Justice O'Connor is an independent thinker.

Justice O'Connor has been a leader on the Court in endorsing legal rules that respect states' rights — unsurprisingly, since the Justice, as a former Arizona state legislator, knows firsthand the states' needs and capabilities. But she has also been a moderate on other issues — such as the right to abortion, church-state separation, and gender discrimination — on which a contemporary "litmus test" Republican would be likely to take a much harder line.

Justice O'Connor's Firm Views on States' Rights

Justice O'Connor clearly believes in states' rights — that is, the notion that state and local representatives can do more and better for their constituents on many issues than distant representatives in Washington. Her leadership on this issue is perhaps most evident in her memorable 1992 opinion in New York v. United States — which held that the federal government exceeded its powers in attempting to compel states to take title to radioactive waste if they had not disposed of it in a stipulated amount of time.

In this and other opinions, Justice O'Connor has charted the way for the Court to rediscover the Constitution's basic structure of federalism, including its inherent limits on the power of the federal government, particularly vis-à-vis the states. For sixty years, the Court had failed to enforce these constitutional limits on the federal government.

Justice O'Connor will go down in history as one of the most important contributors to the project of decentralizing congressional power, and reviving the constitutionally-mandated role of the states in our constitutional scheme.

Justice O'Connor's Reasoned Moderation on Choice and Church/State Issues

At the same time that Justice O'Connor has led the way for the renewal of the states' role in the constitutional design, she also has refused to permit her more conservative brethren to eviscerate a woman's right to choose an abortion.

This position has won Justice O'Connor stinging rebukes from her brethren. Nevertheless, she has never backed down from what has been her principled position from the very beginning: There is a right to abortion, and the states may not place an undue burden on it. Much to her credit, no amount of upbraiding or name-calling has moved her an iota.

Justice O'Connor's church-state opinions are a similar testament to her reasoned, principled moderation. They show she is a jurist who takes the Constitution's language very seriously, and who can transform the Framers' intent into a workable modern-day test.

Many leading academics and lobbyists have attempted in recent years virtually to write the Establishment Clause out of the Constitution, robbing it of all content. Justice O'Connor, however, has refused to acquiesce and is the crucial vote on this Court keeping the spirit of the Establishment Clause alive, as her concurrence in Mitchell v. Helms made absolutely clear. In that case, a four-member plurality took the view that it would permit the government to give money to religious organizations, so long as it went to other, non-religious organizations as well — even if it was later learned that the money was being used for religious purposes. Ever a pragmatist, Justice O'Connor was not persuaded to join the formalism of such reasoning, but rather insisted that if government support is transformed into support for religious missions and proselytization, that is contrary to the intent of the Framers.

To keep the Establishment Clause alive, she has proposed the "endorsement test," which examines a number of factors to see whether the government is improperly endorsing religion. That test — which she introduced in a concurrence in Lynch v. Donnelly — captures the Framers' core concern that having a government-established church or theology would effectively disenfranchise those citizens who did not choose to become members. Her Establishment Clause jurisprudence is a testimony to pluralism, equality, and liberty.

An Independent, Individual Mind

Justice O'Connor also has a libertarian streak, evidenced especially by her recent dissent in the Atwater case, where the Court upheld an arrest and jailhouse detention of a mother of two young children for failure to wear a seatbelt. For those who believe in liberty from an overly aggressive government, this was one of the modern-day Court's most embarrassing decisions. Justice O'Connor's dissent should have been the majority's view, as well.

Many who do not know Justice O'Connor, or who do not fully understand the dynamics of the Court, have accused her of waiting to make up her mind until she sees on what side other Justices are voting and then situating herself in the center, as the "swing vote" that will decide the case. But this is a ridiculous — and in my view, a sexist — reading of her jurisprudence.

Justice O'Connor's principles, like her character, are strong and were well-formed long before she joined the Supreme Court. It is true that she refuses to conclude that justice is served simply because the test applied is clear. But her intense focus on justice, rather than abstract principles, makes her a true Justice, not an academic advisor. She has no time for ideologues, and that is all to the good for the country and the litigants who appear before her.

A Moderate, or Simply a Model Justice?

The Court also has benefited from having Justice O'Connor on the bench during oral arguments, where she is a model for all judges. No Justice is better on the bench than Justice O'Connor. Her questions are incisive and deep, and she does not waste anyone's time with irrelevant or personal concerns about a case. She focuses the parties and the Court on the case, not on any particular hobby horses.

Justice O'Connor defies easy labels. If "moderate" means that a Justice votes in the middle in every case, Justice O'Connor is no moderate. She has never chosen the middle for the middle's sake, but rather started from her own position, which at times has happened to fall in the middle of the Court's spectrum.

But if "moderate" means that a Justice applies deeply held principles and then tempers them with incisive judgment, justice and mercy, she is the best that there is.

Read Part II of Prof. Hamilton's article which addresses Justice O'Connor as a role model

Marci Hamilton, a former Supreme Court clerk for Justice O'Connor, is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is

Professor Hamilton clerked for Justice Sandra Day O'Connor at the Supreme Court during the 1989 October Term.

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