O'Connor's Departure Will Move Court to Right

In the second of two different perspectives, commentator Mark Tushnet offers his thoughts on the tenure of Justice Sandra Day O'Connor. Tushnet argues that O'Connor was the centrist on this Court, and now the center will shift to the right.

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RENEE MONTAGNE, host:

Commentator Mark Tushnet is the author of "A Court Divided: The Rehnquist Court and the Future of Consitutional Law." He has the second of two perspectives on Justice O'Connor's retirement.

MARK TUSHNET:

Justice Sandra Day O'Connor has been what some scholars have called the most important justice for more than a decade because she, more than anyone else, cast the deciding vote in close cases. She voted to uphold affirmative action, to reaffirm the core holding that states can't make abortion illegal, to enforce restrictions on the government's power to take private property for public use, and to limit the national government's power to regulate the economy. Some of these votes are usually called liberal; others conservative.

President Ronald Reagan fulfilled a campaign promise to name a woman to the Supreme Court by nominating Justice O'Connor in 1981. Overall, he would have been satisfied with the decisions she made. Basically, Justice O'Connor has been a moderately conservative judge, not far out of line with where the Republican Party was in 1981.

Times change, though, and so does the Supreme Court. As new justices, like Antonin Scalia and Clarence Thomas, joined the court, Justice O'Connor became a moderate. Not because she had changed, but because now a moderate conservative was nearer the court's center than its right.

Justice O'Connor's constitutional jurisprudence had its strengths and weaknesses. Often her decisions would focus intently on the precise facts of the case before the court. That's a good way of achieving justice in individual cases, but it's not a terrific way of generating rules that will help other judges and ordinary citizens understand what the Constitution requires in other cases.

Whoever replaces Justice O'Connor will certainly be more conservative than she is on the issues the court deals with these days. And because she was the centrist on this court, the center will shift to the right again.

The Supreme Court has been moving in a conservative direction for several decades. Justice O'Connor's moderate conservatism had moderated the pace of change. Her replacement may accelerate the transformation of constitutional law, or so President Bush will hope and the Senate's Democrats fear.

Before we're overtaken by the inevitable controversy over who will take Justice O'Connor's seat, we should remember that she was the first woman appointed to the Supreme Court. Justice O'Connor often tried to downplay the significance of that fact. She was fond of quoting Justice Jeanne Coyne, a woman justice on the Minnesota Supreme Court who said, `A wise old man and a wise old woman reach the same conclusion.' To many women who saw Justice O'Connor on the Supreme Court, that was precisely the point.

MONTAGNE: Commentator Mark Tushnet is professor of constitutional law at Georgetown University Law Center.

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