Justice O'Connor's Complex Jurisprudence

Commentator Douglas Kmiec has the first of two perspectives on Justice Sandra Day O'Connor's retirement. Kmiec says future Supreme Court rulings will turn on whether someone more conservative than O'Connor emerges as a nominee.

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RENEE MONTAGNE, host:

President Bush says he will ask members of the Senate for advice as he considers his first Supreme Court nominee. Speculation on who will succeed Justice Sandra Day O'Connor has interest groups poised for a fierce battle. Commentator Douglas Kmiec was constitutional legal counsel to President Reagan and the first President Bush. He says that future Supreme Court rulings will turn on whether someone more conservative than Justice O'Connor emerges as a nominee.

DOUGLAS KMIEC:

When Ronald Reagan named Sandra Day O'Connor as the first woman to the Supreme Court, he knew he was making history. He just didn't know how much. As the ideological center of the bench for at least the last 10 of her 24 years' service, it has been O'Connor's view that has governed on race, gender, abortion and the separation of church and state. She assisted her conservative colleagues in attempting to keep what is local from what is national by placing limits on Congress' regulatory power and strengthening the states indirectly by making them less liable for damages from federal lawsuits. But she parted company when the damages were to rectify a gender claim or the access to court itself. O'Connor leaned toward the conservatives to permit communities to give parents school vouchers that could be used in religious schools, but she drew the line at directly funding them.

The jurisprudence of Sandra Day O'Connor is complex, and this year, with an ailing chief, it often fell to her to defend conservative principles more strongly and openly. She vigorously dissented from opinions favoring the feds over the states on clearly local matters, like the compassionate use of medical marijuana. With poignant concern for the individual lives displaced by the eminent domain bulldozer, she rose to the defense of everyone's home against an overly broad conception of taking for public use.

Many of those who initially cheered Justice O'Connor's appointment were disappointed by her unwillingness to return to the states the authority to make their own democratic way on abortion. Nevertheless, her approach invited both sides to dialogue in ways the previous Roe opinion had not.

Many of these issues will be back next year, but obviously which of the five justices on a closely divided 5-to-4 court will prevail turns on whether someone like Justice O'Connor or Justice Scalia emerges. O'Connor's vote was always open to persuasion, as she revealed again this year in balking on abolishing the death penalty for juveniles, even as she earlier excluded it for the mentally handicapped. New death-penalty cases are already on the docket. There will be free-speech challenges to the federal government's withdrawal of subsidies when schools give military recruiters a hard time about their don't-ask, don't-tell policy. And there's also a case that fits O'Connor's profile to a T--asking exactly when a law requiring parental notification of abortion becomes an undue burden. When Oregon wrestles with the feds over assisted suicide, Justice O'Connor won't be there listening with that Western ear uniquely attuned to respecting different state choices and experimentation.

Not yet on the docket is same-sex marriage, but it will come. And when it does, it will be a mega case raising many of these issues at once, including whether it's any of the court's business to fashion new rights out of silences in the constitutional text. The president's supporters hope a new justice will have the humility to consistently answer no to such invitations to judicial legislation. We'll see. Whoever gets the nod would do well to remember Judge Learned Hand's admonition that the spirt of liberty really is the spirit which is not too sure that it is right. Certainly on many occasions, Justice O'Connor knew just that.

MONTAGNE: Commentator Douglas Kmiec is chair and professor of constitutional law at Pepperdine University.

Tomorrow, another perspective on Justice O'Connor's retirement.

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