Sandra Day O'Connor and the Supreme Court

Mar 15, 2004

By Peter Bean

The Supreme Court has changed dramatically over the past three decades, moving away from the liberalism associated with Chief Justice Earl Warren to the "states' rights" and pragmatic conservatism exemplified by Justice Sandra Day O'Connor. Joan Biskupic, a public policy scholar at the Woodrow Wilson Center, is tracing the evolution of the Supreme Court, focusing on Justice O'Connor, who she believes is the most influential justice on the current Court.

When President Ronald Reagan appointed O'Connor in 1981, the media described this first woman justice as someone who had been plucked from obscurity. Biskupic notes that a closer examination of O'Connor's background tells a slightly different story. "Sandra Day O'Connor had begun a path to national prominence long before Reagan chose her. She was a natural politician who was always looking to the future. It also is remarkable that a woman whose sheer presence seemed so foreign to the male bastion of the law would eventually dominate it."

Biskupic chronicles O'Connor's rise through Arizona politics and notes that her ideology was shaped by her experiences in the West. "Her western roots contributed to her favoring states against the dominant power of the federal government. Also, as a former state legislator, then judge, in Arizona, O'Connor resented federal judges second-guessing the decisions of state courts. She became a strong voice for deference to state judges." For example, O'Connor has been a leader on the current court to restrict the appeals of death row prisoners to federal judges, providing more protection for state judges' decisions.

According to Biskupic, Sandra Day O'Connor, in contrast to more "rigid" justices like Antonin Scalia, takes a pragmatic approach to cases. She has a tendency to resolve disputes on a case-by-case basis, rather than to engage in sweeping pronouncements of law. O'Connor is often praised for keeping the Court "centered," but Biskupic points out that her pragmatism sometimes invites criticism. "Because she doesn't believe the Supreme Court should be too far ahead or behind public consensus, she's open to the criticism that she blows with the political winds. Some analysts also have pointed out that her opinions lack clear guidance for lower courts."

In 1992's Planned Parenthood of Southeastern Pennsylvania v. Casey, O'Connor joined with four other justices to uphold the controversial 1973 Roe v. Wade decision that made abortion legal nationwide. Her pragmatism, as well as her eye for the institutional stability of the Court, was evident in her vote. "If Justice O'Connor had been on the Court in 1973, she might not have voted for Roe," Biskupic said. "But in the 1992 case she said that since Roe had been the law for so long and many women had come to depend on it, there was no going back."

Whether one is approving or critical of O'Connor's pragmatic approach, Biskupic argues, one cannot deny that O'Connor has "forced justices on the left and on the right to take a more calibrated view of the law."

O'Connor has been in the majority, and often as the decisive fifth vote, in many of the most significant disputes in recent terms. Lawyers who appear before the Court often tailor their arguments to try to win her vote. In last year's University of Michigan affirmative-action dispute, O'Connor was the fifth vote in the two companion cases: upholding the university's right to use diversity as a factor in its law school admissions, and striking down the university's mechanical point system in the undergraduate program. In lawyers' briefs prepared for the Court in these cases, O'Connor's prior writings were widely quoted.

Biskupic argues that O'Connor's rise in power over the last 25 years can only be understood against a backdrop of national politics. "As we've seen a shift to the right in national politics and the appointment of more conservative justices such as Scalia, Justice O'Connor has moved more to the center of the Court."

For Biskupic, the Wilson Center is an ideal place to conduct her research and writing. "The resources at the Center are tremendous," Biskupic says. "I'm not simply exploring where O'Connor fits in with the law, but also in a social, political and cultural context. There's no better place to get that context than the Wilson Center."

To research for her forthcoming book on the Court and O'Connor, Biskupic also has traveled to Arizona and California to speak with relatives, former colleagues and friends of O'Connor. She has also spent significant time in the Reagan archives and once-private papers of other justices. On Thursday, March 18, Biskupic will join five other writers associated with the Wilson Center for a roundtable discussion: "Writing Judicial Biography: Current and Former Wilson Center Scholars Discuss the Hows and Whys." The event will take place from 2:30 to 5:00 p.m. at the Wilson Center and is open to the public.

Joan Biskupic has covered the Supreme Court since 1989, for Congressional Quarterly (1989-92), The Washington Post (1992-2000), and USA Today (2000-present). A graduate of Georgetown University Law Center, she is the author of several legal reference books, including Congressional Quarterly's two-volume encyclopedia on the Supreme Court (with co-author Elder Witt). Her coverage of the Clarence Thomas nomination hearings won the Everett McKinley Dirksen award for distinguished reporting on Congress. Her forthcoming book on Justice O'Connor is to be published in 2005 by HarperCollins/Ecco Press.

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