Pubdate: Sat, 02 Jul 2005
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2005 PG Publishing
Contact:  http://www.post-gazette.com/
Details: http://www.mapinc.org/media/341
Author: Michael McGough, Post-Gazette National Bureau
Cited: Gonzales v. Raich http://www.angeljustice.org
Bookmark: http://www.mapinc.org/topics/Raich (Gonzales v. Raich)

ANALYSIS: LAST DAY REFLECTED O'CONNOR'S LEGACY

WASHINGTON -- On Monday, likely her last day on the Supreme Court
bench, Justice Sandra Day O'Connor served as the fifth vote for the
court's holding that two counties in Kentucky violated the First
Amendment by posting the Ten Commandments in their
courthouses.

But in addition to signing the majority opinion of Justice David H.
Souter, one of the court's staunchest advocates of a strict separation
of church and state, O'Connor wrote a separate concurring opinion, in
which she emphasized that the court was ruling as it did "for the same
reason that guided the Framers -- respect for religion's special role
in society. ...

"Voluntary religious belief and expression may be as threatened when
government takes the mantle of religion upon itself as when government
directly interferes with private religious practices."

O'Connor's role in the Ten Commandments case -- providing that fifth
vote for the majority while writing separately in softer tones --
exemplified the influential role she has played in her 24 years on the
court.

It is a cliche that O'Connor is a swing vote -- sometimes voting with
liberals, sometimes with conservatives -- but she has been more than a
whimsical wild card. Her case-by-case approach and penchant for
separate concurrences have prevented the court from embracing extreme
positions.

To the consternation of more ideological colleagues, especially
Justice Antonin Scalia, O'Connor has become the arbiter of entire
areas of constitutional law, including the role of religion in public
life.

She is the author of what is called the "endorsement test" for
determining whether government involvement with religion violates the
First Amendment. Under that test, the court asks whether a "reasonable
observer" would consider, say, a Nativity scene in a courthouse to be
an endorsement of religion.

"O'Connor has been remarkably consistent and consistently
influential," said Nancy Maveety, a Tulane University associate
professor political science and author of "Sandra Day O'Connor:
Strategist on the Court."

Maveety, who has analyzed O'Connor's voting patterns over many years,
described the justice as "contextually conservative," which means she
is "comparatively restrained when it comes to revising or overturning
precedent and is likely to reason by exception when faced with a case
not adequately covered by an existing rule."

Maveety described O'Connor's approach to judging as "judicial
accommodationism," and said O'Connor had made it a practice to join
"minimum-winning collations" on the court, enhancing her influence
further by writing either "regular" concurring opinions (in cases in
which she also signed the majority opinion) or "special" concurrences,
in which she concurred only in the result.

The result of O'Connor's "accommodationism," Maveety said, is that the
court as a whole often will embrace a "common-sense" position in tune
with public opinion.

That's the problem, O'Connor's critics have charged. They accuse her
of being unprincipled and acting like the legislator she once was.

In reacting yesterday to O'Connor's retirement, Derek Gaubatz,
director of litigation of the Becket Fund for Religious Liberty,
praised the justice for her generous view of the First Amendment's
Free Exercise Clause but complained about her approach to another part
of the First Amendment, which bars the "establishment" of religion by
government.

"She was stubbornly resistant to any sort of categorization." Gaubatz
said.

"Her 'reasonable observer' test for government display of religious
symbols led the court away from any principled interpretation of what
counts as an 'establishment of religion' to a subjective test that
varied with the whims (including frequently O'Connor herself) of the
individual justices."

But the case-by-case approach that O'Connor's critics see as a vice is
regarded as a virtue by some legal observers.

"In any given era, you're likely to find someone occupying that middle
position on the court," said Edward B. Foley, an Ohio State University
law professor and former state solicitor of Ohio. "Like Justice Lewis
Powell [in the 1970s and '80s], Justice O'Connor was a balancer, and
it's not surprising that a balancer ends up as a swing vote."

Ken Gormley, a Duquesne University law professor who is close to
O'Connor, offered a similar description: "I think she really made her
name in recent years as a pragmatist; she found practical solutions to
impossible problems."

Upon O'Connor's departure, the court's position on several issues
could be up for grabs now, depending on the philosophy of the women or
man who President Bush chooses to succeed her. This would not have
been so true had it been Chief Justice William H. Rehnquist who
announced his retirement, a prospect that was widely expected because
of his poor health.

"The stakes are much higher after an O'Connor retirement than after a
Rehnquist retirement," said Michael Comiskey, associate professor of
political science at Penn State's Fayette campus and author of
"Seeking Justices: The Judging of Supreme Court Nominees."

"If [Bush] chooses someone in the mold of Justice [Antonin] Scalia or
[Clarence] Thomas, I think we would have another situation like the
one involving Robert Bork," Comiskey said, referring to former
President Ronald Reagan's controversial and eventually unsuccessful
nominee for justice in 1987. "On the other hand, if he chose someone
who was perceived as only a moderate conservative, confirmation would
be easier."

Within hours of O'Connor's announcement yesterday, e-mails were flying
in Washington filled with interest groups' litanies of the decisions
in which she had cast the crucial vote favoring a liberal position --
holdings that might be undone by a more ideologically conservative
successor.

* Religion. In addition to her votes this week to strike down Ten
Commandments monuments on public property in Kentucky and in Texas
(she was in the minority on the latter case), O'Connor was part of a
5-4 majority that ruled in the 1992 case of Lee v. Weisman that a
prayer at a public-school graduation was unconstitutional.

* Abortion. O'Connor joined the majority in the 1992 Planned
Parenthood of Southeast Pennsylvania v. Casey decision that reaffirmed
the essential holding of Roe v. Wade by a 5-4 vote. In 2000, she was
part of a 5-4 majority in Stenberg v. Carhart striking down a Nebraska
law banning so-called "partial-birth" abortions. A similar federal law
is moving up the appeals process.

* Affirmative action. O'Connor wrote the majority opinion in the 2003
case of Grutter v. Bollinger upholding an affirmative-action program
at the University of Michigan Law School and reaffirming a principle
first enunciated in the 1978 Bakke case that state universities may
consider race as one factor in admissions.

* Civil rights. Although critical in earlier cases of "racial
gerrymandering" designed to maximize minorities' voting power,
O'Connor was part of a 5-4 majority in the 2001 case of Hunt v.
Cromartie allowing legislators to take race into account in
redistricting. Last year, in Tennessee v. Lane, O'Connor joined with
four liberal justices to uphold the right of disabled people to sue
state governments under the Americans with Disabilities Act.

Although much attention yesterday was focused on swing votes in which
O'Connor supported a liberal result, she often swung in the
conservative direction.

Along with Rehnquist, Scalia, Thomas and Anthony Kennedy, O'Connor was
a member of the "Federalism Five," a bare majority that struck down
part or all of two federal laws -- the Gun-Free School Zones Act and
the Violence Against Women Act -- on the grounds that they infringed
on states' rights.

University of Pittsburgh law professor Arthur Hellman noted yesterday
that O'Connor remained an ardent supporter of states' rights through
her final term. For example, she vigorously dissented from last
month's 6-3 decision in Gonzales v. Raich upholding the right of the
federal government to prosecute users of medical marijuana in
California, despite the fact that the state allows use of the drug by
cancer patients.

Hellman cited that dissent and O'Connor's equally astringent dissent
in last week's 5-4 Kelo v. City of New London decision upholding use
of eminent domain as evidence that this term she has been "going back
to her roots," voting conservatively. 
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