It would be difficult to overstate the importance of Sandra Day O?Connor?s tenure on the Supreme Court. Most obviously, she is the first woman ever to serve on the Court. And that, while in some sense merely symbolic, was in fact a major breakthrough into a previously all-male bastion of extraordinary secrecy and tremendous power. Her presence as one of nine Justices cannot help but have changed the internal dynamics of the Court tremendously. After all, after Justice O?Connor joined the Court, the Justices even had to change the way they referred to each other (they could no refer to another Justice as ?my Brother?) and the way they were identified in published opinions (the beginning of an opinion always used to read ?Mr. Justice X delivered the Opinion of the Court?).
More important, though, is the fact that on many issues that matter a great deal to many Americans, Justice O?Connor was at the very center of the Court for many years. That fact is why her surprise retirement announcement has knocked Washington, and the nation?s legal community, for a loop. Everyone thought that the first retirement would be the cancer-stricken Chief Justice Rehnquist, a far-right conservative whose replacement could hardly have been further to the right than he is. But with Justice O?Connor?s retirement comes an opportunity for President Bush and the Senate Republicans to change the course of American law dramatically, and quickly. Off the top of my head, here are a few important legal issues, and my take on how Justice O?Connor?s retirement might affect them. I have adopted Star Trek?s three-level alert system (not to be confused with the terror alerts).
Affirmative Action: RED ALERT. On this issue Justice O?Connor is at the exact middle of a highly polarized Court. There are four reliable votes (Rehnquist, Kennedy, Scalia, and Thomas) prepared to outlaw any form of affirmative action other than the narrowest, most remedial plans (e.g., where a fire department has a proven record of past racial discrimination). Those four will not permit any form of forward-looking affirmative action, and certainly would not tolerate an affirmative action plan based on ?diversity? such as the one Justice O?Connor upheld at the University of Michigan Law School in Grutter v. Bollinger. A replacement who saw eye to eye with the ?conservative? view on affirmative action could quickly wipe out pretty much every affirmative action program administered by a public entity anywhere in the country.
Choice/Abortion: RED ALERT. On this issue, too, Justice O?Connor occupies the Court?s center. However, the calculation is somewhat more complicated because here there are only three votes (Rehnquist, Scalia, and Thomas) prepared to drastically change the landscape by overruling Roe v. Wade. The Court?s last major statement on abortion, Planned Parenthood v. Casey in 1992, was anchored by the joint opinion of Justices Kennedy, O?Connor, and Souter which expressly declined to overrule Roe (to the great consternation of Scalia et al.). One assumes that Justice Kennedy remains unwilling to overrule Roe. However, he tends to be more willing to accept burdensome regulations on abortion than Justice O?Connor has been (the partial birth abortion case is a good example). Therefore, an O?Connor replacement willing to overrule Roe would not guarantee that decision?s immediate demise, but would certainly signal a greatly increased willingness to tolerate burdensome restrictions that previously would not have survived the Court?s scrutiny.
Religion: RED ALERT. Justice O?Connor?s somewhat surprising votes in the recent Ten Commandments cases, in which she found both the Texas and the Kentucky displays to be unconstitutional, show how critical her votes have been in this area. Although she has been instrumental in the Court?s greater willingness in the last decade or so to accept certain forms of governmental support of religious institutions (she voted to allow vouchers to be used for religious schools and to allow mandatory school fees to support religious activities), her ?endorsement? approach to Establishment Clause cases was entirely different from the Rehnquist-Scalia-Thomas approach, which based on Scalia?s Ten Commandments dissent would seem to accept almost anything short of a state?s decision to formally declare that a particular religious sect was the official state religion. Another Justice willing to join the Rehnquist-Scalia-Thomas approach to the Establishment Clause could quickly lead to far more publicly-funded and state-approved religious expression than anyone has seen in many years.
Criminal Law: Yellow Alert. Justice O?Connor has generally been fairly conservative in this area, and she has written some important opinions (Teague v. Lane, for example) that have significantly limited prisoners? ability to raise new constitutional claims when seeking habeas corpus relief. However, as in most other areas of law, Justice O?Connor takes each criminal case on its own facts ? and in criminal cases the facts matter a great deal ? so her votes have not been easily predictable in the criminal area. Whether the issue is the death penalty (see also here), actual innocence, or anything else that arises in criminal cases, Justice O?Connor approached these cases from an intensely pragmatic perspective, and it was her review of the facts, not some overarching theory regarding criminal law, that would determine her vote, which sometimes went with the "liberals" and sometimes not. A replacement with a more dogmatic approach to these issues could easily lead to a substantial scaling-back of the rights of criminal defendants.
Voting Rights: Yellow Alert. Justice O?Connor authored Shaw v. Reno, the 1993 opinion that gave rise to a rash of litigation raising constitutional challenges to the shape of districts that had been drawn to favor minority voters. And she has been quite willing to find that such districts ?go too far? (and therefore are unconstitutional) in drawing funny-looking boundaries designed to capture the maximum number of minority voters. Yet here, too, she has been sensitive to context and has allowed redistricting to consider race at least up to a point.
Free Speech: Yellow Alert. Justice O?Connor is actually one of the less speech-protective Justices on the current Court ? Justice Kennedy is probably the closest thing the Court has to a free speech absolutist, and even Justice Scalia concluded that flag burning was constitutionally protected expression (Justice O?Connor dissented in that case). O?Connor has shown a willingness to defer to a legislature?s judgment that a particular social problem demands, as part of its solution, a restriction on speech. For example, she upheld the McCain-Feingold campaign finance law against free speech challenges; she has voted to allow cities to ban nude dancing as part of an effort to clean up red light districts; and she wrote an opinion upholding Florida?s restrictive lawyer-advertising regulations as a way of protecting the public from sleazy lawyers. Her replacement will probably change the calculus on speech, but not in an easily predictable way.
Gay Rights: Yellow Alert. In 1986 Justice O?Connor joined the infamous Bowers v. Hardwick majority opinion upholding Georgia?s sodomy law, and she did not join Justice Kennedy?s 2003 opinion in Lawrence v. Texas. However, she was willing to find the Texas sodomy statute unconstitutional on a different theory (the statute barred sodomy for gay people but not for straight people, which she thought violated equal protection), and she joined Justice Kennedy and the four ?liberals? in striking down Colorado?s state constitutional amendment barring local governments from adopting any gay-friendly ordinances (such as employment discrimination). Because Justice Kennedy has generally been surprisingly gay-friendly, Justice O?Connor?s replacement may not be able to dramatically shift the Court?s balance on this question, but a real ?cultural conservative? would mean that there are four votes to reject almost any gay rights-related claim ? an uncomfortably thin margin.
Civil Rights Laws: Yellow Alert. Here, as with many other issues, Justice O?Connor sits at the center of the Court. An excellent illustration is the Court?s recent struggled with the question whether the Americans with Disabilities Act may be applied against the states (the states, armed with recent federalism cases, argued that the Eleventh Amendment prevents them from being sued). Justice O?Connor concluded that Congress has the authority under the Fourteenth Amendment to override states? Eleventh Amendment immunity and require states to comply with the Act with respect to access to courthouses. Yet she also concluded that the Eleventh Amendment did prevent disability-based employment discrimination lawsuits against states. She was the only Justice in the majority in both cases. And her lengthy concurring opinion in Price Waterhouse v. Hopkins revealed a great deal of sensitivity to the realities of workplace discrimination as well as the difficulty of proving such discrimination under the then-existing legal framework. It may well be that her own experience with discrimination (as is well known, she was unable to find a non-secretarial job with a law firm after graduating third in her class from Stanford Law School) has guided and informed her approach to these cases. If her replacement lacks that same sensitivity, we might see substantially different results in these kinds of cases.
Federalism: Condition Green. Justice O?Connor has been a reliable ally of Chief Justice Rehnquist in the so-called ?federalism revolution.? She has supported the extension of the Eleventh Amendment into a powerful form of sovereign immunity for the states, and she wrote the stinging dissent from the Court?s recent willingness to allow Congress to reach medical marijuana via the interstate commerce clause. In this area, her replacement is unlikely to shift the balance on the Court.
Oh, one more thing. Her replacement. My guess: Michael Luttig of the Fourth Circuit – a very reliable conservative on most of these issues. Stay tuned.