Evaluating O'Connor's Two Decades on the Court

U.S. Supreme Court Justice Sandra Day O'Connor has resigned after more than two decades on the nine-member high court. Madeleine Brand speaks with Slate legal analyst Emily Bazelon and with Jeffrey Rosen, legal affairs editor at the New Republic magazine, about O'Connor's career and legacy.

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MADELEINE BRAND, host:

And for analysis of O'Connor's legacy and the future of the court, we turn now to Jeffrey Rosen, legal affairs editor at The New Republic magazine. He also teaches at George Washington University Law School. We're also joined by Emily Bazelon. She's the legal analyst for our partners at the online magazine slate.com.

And welcome to both of you.

Mr. JEFFREY ROSEN (The New Republic): Thank you.

EMILY BAZELON (Legal Analyst, Slate): Thanks very much.

BRAND: Jeffrey, O'Connor has been called a judicial minimalist. What does that mean?

Mr. ROSEN: Judicial minimalism means only deciding one case at a time, not having broad theories that might apply to all circumstances, but really going no further than the particular facts demand. Now some question the claim that she's a judicial minimalist and say instead she was really a quintessential legislator. She was, after all, a former Arizona state legislator, and there are so many issues in American life from affirmative action to prayer that really relied on her vote to be decided that some people accused her of acting as much like a politician as a justice.

BRAND: Well, let's look at a few of those rulings--take abortion, for example, and affirmative action. Emily, how has she ruled on those issues?

BAZELON: Well, on abortion she cast a key vote several years ago to uphold Roe vs. Wade, and she was really holding down the center of the court with Justice Kennedy and Justice Souter, and this is a case in which she really expressed concern about women in terms of having to inform their husbands. It was a case about whether a state could have a law saying that women have to notify their husbands before getting an abortion. And the opinion really bears Justice O'Connor's imprint in the sense that she was worried about women who might have reason to fear talking to their husbands about an abortion. And you can sort of feel her concern for them come through in the opinion. So though Jeffrey's certainly right that she has this reputation for deciding cases in ways that can seem sort of personal, you can feel her humanity coming through the decisions at certain points as well.

BRAND: And how was she on recent affirmative action and gay rights issues?

BAZELON: On recent affirmative action and gay--well, on gay rights issues she actually voted with the conservative block of the court in Lawrence vs. Texas against a ruling that ended Texas' anti-sodomy statute. So it was a ruling sort of holding with the more conservative position. And on affirmative action, she helped bring about the sort of split last year in two cases involving the University of Michigan. The law school's affirmative action program, she said, could stay because it was very much about looking at individual students, but the universitywide college program that was based on a more sort of numbers-based quota system she said had to go.

BRAND: And I understand, Jeffrey, that that frustrated many conservatives.

Mr. ROSEN: It did. If their most virulent cry was `No more Souters,' they certainly also were inclined to say `No more O'Connors.' And they felt very frustrated indeed that the first justice who was appointed for the specific purpose of overturning Roe v. Wade disappointed them on so many areas. But of course, she wasn't a predictable liberal or conservative. She had certain consistent principles--allegiance to states' rights being the most prominent of them. Although she was sometimes criticized for changing her mind, she was quite decisive. She had a pillow in her chambers which said, `Maybe in error but never undecided,' or something along those lines, that basically, once she made up her mind, she stuck to it and the fact that some of her decisions favored liberals and some favored conservatives, her supporters said, is a sign of her open-mindedness.

BRAND: And then there was the crucial swing vote that she gave in Bush v. Gore.

Mr. ROSEN: There was, and that was certainly a very important moment in her legacy. She was said--none of these rumors are entirely reliable--but she was said to worry about the effect that Bush v. Gore would have on her legacy because some in the wake of the decision questioned her moderation and attacked her as a partisan. But interestingly, that was one case where she was--the slogan, which I'd forgotten, was `Maybe in error but never in doubt,' and that was a case where she was never in doubt. Accounts of the decision suggest that Justice Kennedy was much more of an agonizer, was trying to decide until the last minute whether or not to stop the manual recount, but O'Connor just thought that it was outrageous that lower courts were disobeying the Supreme Court and had no compunction about stopping the vote.

BRAND: Well, many of her critics have said that, yes, she was a minimalist but only when it suited her conservative interests.

Mr. ROSEN: That's true. I think maybe that's not the most persuasive way of putting the criticism. Better--'cause she wasn't a consistent conservative. As Emily suggested, there are so many cases where she cast the crucial liberal vote from campaign finance, affirmative action, some gay rights cases and abortion--it would be wrong to say that she was purely following her political preferences. But I think the critics--the strongest case against Justice O'Connor is she wasn't really a minimalist. What she was interested in was preserving discretion for judges in general and herself in particular to decide all the most contested questions in American life. It was impossible for years for people to draw voting districts until they went to O'Connor, presented the maps to her and asked for her approval. And some compared her, perhaps unkindly, to the oracle at Delphi, you know, the great oracle who would sit on a tripod and put up puffs of smoke to allow her wishes to be known. Until Justice O'Connor had passed on the great questions of American life, often it was impossible for politicians to operate, and critics say that that's an example not of minimalism but of a kind of judicial self-aggrandizement.

BRAND: All right. Let's run through a list of possible replacements. Emily?

BAZELON: Well, first on a lot of people's lists, including mine, has been Michael Luttig. He is on the 4th Circuit federal Court of Appeals. He's been a reliable conservative. For example, he stayed a district court judgment a few years ago that was going to invalidate Virginia's ban of so-called partial birth abortion. And so the idea was--Luttig's idea in order to grant this stay was that there was a good chance that a partial birth abortion ban would be found constitutional. The Supreme Court later disagreed by a vote of 5-to-4 in a case in 2000.

BRAND: And any chance that President Bush might pick another woman?

BAZELON: Well, that's possible. There have been two Texas judges who've been talked about a little bit. One of them is a woman named Edith Jones, who is quite a caustic conservative. She's written some stinging dissents in the 5th Circuit. And then there is another person, a colleague of hers. Her name is Edith Brown Clement, and she is more of an unknown. She hasn't really written about very much that's controversial, and so the thing that she's best known for is actually joining a dissent of Edith Jones' in an environmental protection and property rights case where Jones was objecting to the idea that Congress has the power to protect a small group of insects under its power to regulate interstate commerce.

BRAND: And, Jeffrey, do you think it's likely that he will--Bush will pick another moderate, or will he go for a hard-liner, someone like Scalia?

Mr. ROSEN: Well, the politics are so interesting, especially if we imagine that Chief Justice Rehnquist may indeed resign in the next couple of months because of his health. If Bush has two slots, he might choose to replace O'Connor with a moderate like Gonzales, who the conservative base would be furious as a replacement for Rehnquist, and appoint a more conservative person to replace Rehnquist, or as Don Gonyea was suggesting, he could choose a hard-liner to replace O'Connor, delight the base and then free himself up to appoint Gonzales later on. But there are many moving parts of the puzzle, and of course, it's the most exquisite political game in town to predict exactly where it'll all end up.

BRAND: Jeffrey Rosen is legal editor for The New Republic magazine. He's on the faculty of George Washington University Law School. Emily Bazelon is legal analyst for our partners at the online magazine Slate and for DAY TO DAY.

Thank you, both of you.

Mr. ROSEN: Thank you.

BAZELON: Thanks very much.

BRAND: Stay with us on DAY TO DAY from NPR News.

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