The Supreme Court After O'Connor Liane Hansen speaks with legal adviser Mimi Wesson about the retirement of Supreme Court Justice Sandra Day O'Connor. The court may change quite a bit without O'Connor's frequent swing vote.

The Supreme Court After O'Connor

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Supreme Court Justice Sandra Day O'Connor's announcement Friday of her retirement sets the stage for a potentially epic political battle for the future of the court. President Bush says he wants a new justice confirmed by the Senate in time for the start of the court's next session, which begins three months from now. In the past, the president has also said he would like to appoint someone in the image of conservative Justices Antonin Scalia or Clarence Thomas. Such an appointment would almost certainly prompt a protracted debate in the Senate and possibly a filibuster that would make a speedy confirmation unlikely. Coming up, a report on how special interest groups are preparing for the confirmation process, but first, we're joined by WEEKEND EDITION legal adviser and University of Colorado law Professor Mimi Wesson.

Mimi, welcome back to the program.

Professor MIMI WESSON (University of Colorado): Thanks, Liane.

HANSEN: First, give us a brief perspective on Sandra Day O'Connor's 24 years as a Supreme Court justice.

WESSON: Well, first, Liane, this battle over the future of the court comes at a time when its prestige is pretty low among the American people. In a recent Gallup poll, only 41 percent of the respondents said they had a great deal of confidence or a lot of confidence in the court. So that's a real low point for the court's public image. So in this context looking back over Justice O'Connor's career, one of the questions that many are asking is: Was she inconsistent or was she just nuanced? Public perceptions about the court often seem to think that the justices are dictators. They just decide cases the way they strike them at the moment. They're not applying any overarching timeless principle. So that's a damaging perception. And some would say that Justice O'Connor's reputation as a swing voter contributed to that reputation. Her mantra as a justice was always, `Stay close to the record,' meaning look closely at the precise facts of the case before you. And so she often saw and acted on distinctions that others saw as small ones.

Looking back over her career, I think the question by which she'll be judged is then: Was she really seeing important differences in a way that judges and lawyers are trained to do, or was she just deciding cases the way she wanted to in a somewhat capricious and inconsistent way? I do think, however, that being a swing voter gave her a great deal of influence in the court, including influence over the other justices and influence over the way opinions were written even when she didn't write them.

HANSEN: The president has said he would like to appoint a Supreme Court justice like Scalia or Thomas. If he's successful in getting a person in that mold confirmed by the Senate, Mimi, how do you think it's going to influence things on the court?

WESSON: Well, if one thinks of particular cases, the impact might be dramatic. For example, in this term's cases about public displays of the Ten Commandments, there were two of these cases and they actually came out differently. One of them had to do with framed documents in Kentucky courthouses and the second stone tablets that had been outside the Texas Capitol for 40 years. So the court divided by a narrow majority and thought the Texas display was constitutional but that the Kentucky one was unconstitutional.

Now Justice O'Connor would have voted to hold them unconstitutional in both settings. Justices Scalia and Thomas voted to uphold them in both cases. Since each case was decided 5-to-4, had the ninth justice been not O'Connor but some justice who saw these issues like Scalia and Thomas, then both displays would have been permitted.

HANSEN: Talk a little bit more about the past court term. Of course, you mentioned the Ten Commandments case which got a lot of attention, but there was also a case in which the court struck down federal sentencing guidelines, and there was a medical marijuana case in California. Do you sense a theme in any of these cases?

WESSON: This last term was so rich in material and many sort of interwoven themes that could be pursued, but I myself was struck by how other justices, not just Justice O'Connor, are often wrestling with this question about how particular to be when you're deciding whether two cases that are similar ought to be decided the same or whether there's some important difference between the two of them.

In the medical marijuana case, which had to do with an important project of the court's conservative wing which is called federalism, the court was trying to decide whether Congress had the power to regulate a very small localized activity, the cultivation and consumption of marijuana by patients who had medical prescriptions that were actually recognized in the state of California. The federalist view would have been that--or the sort of pure federalist view would have been that the Congress doesn't have any power here, but Justice Scalia voted with the court's usual liberal wing to uphold the California law because he thought the cases were different. He said that there was a nuanced difference between the two.

HANSEN: There's a term that we've been hearing a lot. It's called judicial activism and it's a term we're probably going to hear a lot in the coming months. What does it mean to you when that term is used?

WESSON: Well, it used to mean willingness to strike down state or federal government acts on the grounds that the Constitution forbad them, but the president has both criticized judicial activism and said that he wants more justices like Scalia and Thomas which leads me to wonder, like: Wouldn't it have been activist to strike down a federal statute regulating the use of marijuana, as Thomas would have done in the medical marijuana case? Wasn't it activist to interpret the Constitution to strike down federal sentencing guidelines and throw the federal criminal courts into disarray as both Scalia and Thomas voted to do? I'm not criticizing any of these votes, but just trying to make the point that judicial activist doesn't seem to mean what it used to.

HANSEN: WEEKEND EDITION legal adviser Mimi Wesson teaches at the University of Colorado School of Law. She's also a mystery writer. Her most recent novel is "Chilling Effect."

Mimi, thanks very much.

WESSON: Thank you, Liane.

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