Editor's Note :

Editor's Note :

On Wednesday we expect one or more decisions in argued cases; we will be live blogging beginning at 9:45 a.m.

Tejinder Singh Contributor

Posted Tue, January 17th, 2012 7:30 am

Justice Sandra Day O’Connor’s Legacy

This week in the Community we discuss the legacy of Justice Sandra Day O’Connor. During her tenure, she played a crucial role in many key decisions, but the Court’s more recent precedents have called a number of those holdings into question. This week, we ask your thoughts on what Justice O’Connor’s legacy is and will be.


  • Kali Borkoski – 0 Promoted Comments

    Day 1:
    In this thread, please identify and discuss Justice O’Connor’s most significant contributions to the Court’s practice and jurisprudence.

    • Rick Hasen – 4 Promoted Comments

      I cannot comment on Justice O’Connor’s most significant contributions to jurisprudence overall, but within the realm of election law, her positions often turned out to be decisive and consequential. This was true whether one considers her opinions on the scope of the Voting Rights Act, the standards for judging unconstitutional racial gerrymanders, or the Court’s campaign finance jurisprudence.

      Justice O’Connor’s position on campaign finance jurisprudence shifted over the years. In fact, she changed her position twice on the constitutionality of laws barring corporations from spending their funds in candidate elections. But at the end of the day, it was Justice O’Connor’s vote which saved the constitutionality of the McCain-Feingold campaign finance law in McConnell v. FEC. (This was a position the Court later reversed when Justice Alito replaced Justice O’Connor on the Court.) Chief Justice Rehnquist and Justice O’Connor each changed their votes on whether Austin v. Michigan Chamber of Commerce should be expanded to cover labor unions and “electioneering communications” or be overruled. Because the two Justices changed their positions in opposite directions, a majority supporting the constitutionality of corporate spending limits in candidate elections remained in place.

    • Kent Scheidegger – 6 Promoted Comments

      Justice O’Connor will surely have a lasting legacy in the area of federal habeas review of state convictions. [Disclosure: I wrote briefs in several of these cases.]

      The availability of federal habeas for state prisoners has ebbed and flowed multiple times in American history, depending largely on the relative degree of confidence in state and federal courts. The Supreme Court boosted federal habeas in the 1950s and 1960s because of concerns about state courts in cases with racial overtones and later to implement the Warren Court’s reworking of criminal procedure. The Supreme Court couldn’t review all the cases itself and “had to summon the inferior federal judges to its aid,” as Judge Friendly put it.

      By the mid-1970s, though, many federal courts were overturning state decisions simply because they disagreed with the conclusions of equally competent and conscientious state judges on close questions. It was time to pull back. Two of the major pull-back decisions, Stone v. Powell and Wainwright v. Sykes, were issued before Justice O’Connor joined the Court, but she took a leading role after her appointment.

      In cases such as Engle v. Isaac and Coleman v. Thompson, Justice O’Connor wrote the opinions of the Court in cutting back on the ability of prisoners to attack their convictions in federal court on grounds they had never raised or not properly raised to the state courts.

      Most importantly, in Teague v. Lane, she took up the unfinished work of Justice Harlan and limited the use of habeas corpus to overturn convictions based on rules invented after the state trial and appeal. I did a study of pre-Teague cases and found that 40% of the grants of relief in Eleventh Circuit capital cases had been the result of such changes in the rules.

      In 1996, as part of a major reform, Congress enacted the most important change in the habeas statute since Reconstruction, 28 U.S.C. §2254(d). Instead of relitigating issues de novo, the federal court was to be limited to overturning decisions where the state court was clearly wrong. As the bill was going through Congress, it was fiercely contested, but one thing nobody on either side doubted was that it was a major change in habeas law. In the federal district and circuit courts soon after its enactment, there was debate over its precise meaning and even its constitutionality, but no doubt it made a profound change.

      Yet incredibly, a theory was later floated that the statute made no real change in the law and just codified Teague. Even more astonishing was that this contradiction of all that was said on both sides of the debate in Congress got four votes in the Supreme Court. Justice Stevens’ opinion in Williams v. Taylor is a majority opinion for the other parts of the case, but not this main point. On this point, Justice O’Connor’s opinion is the opinion of the Court, and it saved this landmark reform from an audacious and illegitimate judicial repeal.

      Justice O’Connor did not always vote for the prosecution in habeas matters. The ink was barely dry on Teague before she cast the deciding vote and wrote the opinion that appeared to eviscerate it – Penry v. Lynaugh. Yet later she joined and wrote opinions that undid most of Penry’s damage, never explaining the inconsistency. She also cast the deciding vote in the case that kept Miranda issues subject to habeas review – Withrow v. Williams. She declined to go along in a case that might have extended Teague from questions of pure law to mixed questions of law and fact – Wright v. West – forcing Congress to take charge and enact §2254(d). After saving §2254(d) in Williams v. Taylor, she weakened it practice by casting the deciding vote in cases such as Rompilla v. Beard.

      The law of habeas corpus today is far from perfect. It is the complex product of too many compromises, producing too many rules with too many exceptions. We have not yet found the optimum way to preserve a remedy for those who have been truly wronged by the system while still preventing the use of habeas as a “heads I win – tails we take it over” form of judge-shopping review, employed by clearly guilty criminals with nothing more than debatable claims on close procedural questions. Still, a great deal of progress has been made in that direction, and Justice O’Connor had a large role in making it.

      • Kent Scheidegger – 6 Promoted Comments

        Correction to prior post: the statement about Withrow v. Williams was incorrect. Justice O’Connor dissented in that case.

        For what it’s worth, the Supreme Court reaffirmed the “general rule” of Coleman v. Thompson this morning in Maples v. Thomas.

        • Michael Meehan – 0 Promoted Comments

          It is true that the Court cited Coleman in Maples. However, Maples was decided on “cause and prejudice” grounds other than Coleman. Meanwhile, the Court still has pending Martinez v. Ryan, argued the same day as Maples, which more directly implicates Coleman. And it has scheduled for its January 20th conference Cook v. Arizona, No. 10-9742, in which an execution was stayed in April of 2011, presenting the same Coleman issue, in a case arising directly from the state proceeding,as does Martinez in a federal habeas case. [Disclosure; I am counsel for Cook.]

          • Kent Scheidegger – 6 Promoted Comments

            I don’t quite follow the statement that “Maples was decided on ’cause and prejudice’ grounds other than Coleman.” Maples and Coleman are both “cause and prejudice” cases. The question in both was whether a failure of counsel was “cause” under the Wainwright v. Sykes rule. Coleman held that a negligent default by habeas counsel was not. Maples reaffirmed that general rule while distinguishing abandonment from negligence. So the Coleman portion of Justice O’Connor’s legacy continues as of today.

            Martinez is indeed still pending, but the reaffirmation of Coleman in Maples makes it unlikely that any sweeping change is coming in that case.

  • Rory Little – 2 Promoted Comments

    No doubt in my mind that her opinion for the Court in Strickland v. Washington (1984), which for better or worse sets the standard for ineffective assistance of counsel, and has gone on the set the analytical standard in other vital crim pro areas (Brady “materiality, for example), is her most influential decision (abortion opinions included).

  • RonNell Andersen Jones – 1 Promoted Comment

    For all the many ways that Justice O’Connor impacted the Court’s substantive jurisprudence — and it sounds like we’ll get the chance to think about a number of them in this discussion this week — I think it is worth mentioning that she also had a deep impact on some of the Court’s practices. One that seems particularly worthy of note is the impact she had on the tone, content, and approach of oral argument at the Court.

    Always pragmatic, and deeply interested in the real-world consequences of the Court’s decisions in every case, Justice O’Connor developed a habit of asking questions at oral argument that were carefully designed to flesh out these consequences. From her very early days on the bench, she could be heard (often in the very first question asked at argument) asking how a decision from the Court in one direction or the other would impact actual people, actual businesses, and actual governmental institutions in the country: How would real police officers’ decisions be affected? How would states and municipalities have to reorder their behaviors? What changes would actual small businesses feel?

    As a law clerk, I came to see that many of these questions were reflective of Justice O’Connor’s unique personality and upbringing. Eternally a ranch girl, she wanted solutions that really worked and had little patience for esoteric theory that had no grounding in reality. But beyond this, her approach was a nuanced, thoughtful recognition that the law’s purpose—and the task of Justices at the Court—is complex, and that a fuller, richer inquiry into the lives of the real people affected by the law almost always enhances doctrinal conversations and leads to more carefully tailored judicial opinions. Although these oral argument questions were asked by her, they benefited all of her colleagues. In time, I think, they had what may prove to be a lasting impact on the character of oral argument at the Court. Today, litigants anticipatorily prepare for this kind of questioning, and other Justices more regularly inquire about “where the rubber hits the road,” in Justice O’Connor’s style. I see the Court’s decisionmaking as all the better for it, and think we have Justice O’Connor to thank for the development.

  • Kali Borkoski – 0 Promoted Comments

    Day 2:
    In this thread, please discuss the continued vitality of Grutter v. Bolinger in light of the Court’s subsequent decision in Parents Involved, as well as the implications for the affirmative action debate more broadly.

    • Roger Clegg – 1 Promoted Comment

      With the exception of Planned Parenthood v. Casey and its progeny, I suspect that the O’Connor decision least popular with conservatives is Grutter v. Bollinger, in which she upheld the use of racial and ethnic preferences in law-school admissions. But O’Connor’s legacy here is tenuous, in several ways. First, there is the fact that it was a 5-4 decision, it has no progeny, and she has been replaced by the more conservative Justice Alito. Second, the Court’s subsequent opinion in Parents Involved in Community Schools v. Seattle School District No. 1 declined to extend the decision outside of the context of higher education. And then there is what is perhaps the most notorious passage in that notorious decision – the final sentence in the body of her opinion, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” So, by its own terms, its legacy is one-third of the way toward extinction.

      Indeed, factual developments since 2003 may cause the Court to move up that 25-year expiration date. The Court may be unsettled by the fact that the victims of racial preferences are increasingly not only white but Asian, and the beneficiaries not only black but Latino – that is, the nation’s two fastest growing ethnic groups are increasingly implicated, and neither had much to do with slavery or Jim Crow. As for the “educational benefits” of diversity, Chief Justice Roberts warned in PICS that in the K-12 context they were “dispute[d]” and “intangible” while “the costs are undeniable” – well, the evidence that there are compelling benefits is increasingly disputed in the higher-education context, too. And even if there are benefits, they are at best marginal — that is, it is obvious that the benefits are not essential for education – and the record now is that there are many selective schools (let alone all nonselective schools) that either don’t use, or for some period of time in recent years have not used, racial admission preferences without the sky falling. There are the Texas and other Fifth Circuit universities and the University of Georgia, which had to eschew preferences because of lower court decisions; preferences have now been ended in Arizona, California, Michigan, Nebraska, and Washington by ballot initiatives; and Florida, Iowa, and — as of Jan. 1, 2012 — New Hampshire also do not use them. Add them all up, and now around 40 percent of the population lives in states where public universities either are not using preferences, or recently have not used them. Finally, the empirical evidence is mounting that the costs of preferences are, indeed, “undeniable.” In particular, new data showing the “mismatching” of individuals and schools — i.e., demonstrating that students are being set up to fail by being accepted to schools that are too demanding for them — make clear that African American and Latino students are themselves among the casualties.

      On the other hand, Grutter’s life may be extended by the fact that, although discrimination by universities is not being phased out – to the contrary, our studies show that where it is still allowed it is as virulent or worse than ever – it is for obvious reasons hard to find students willing to be plaintiffs and lawyers willing to bring the inevitably long, complicated, and unremunerative actions on their behalf. Indeed, with one exception, I’m not aware of any cases that are out there, nor any that have been brought since Grutter. But in that one case, Fisher v. University of Texas, there is a petition pending before the Court now that would allow the Court to revisit this area. Here’s hoping it’s granted, and Justice O’Connor’s legacy in Grutter is mitigated or ended.

      Roger Clegg is president and general counsel of the Center for Equal Opportunity.

      • roxanne friedman – 4 Promoted Comments

        Roger Clegg is wrong about Jim Crow not applying to Latinos. There was de jure segregation in California public schools against Hispanics (personal visit to museum in Carpenteria). I’m pretty sure the school segregation against Latinos in Texas was de jure (Lyndon Johnson biography). Not to mention the failure to provide school buses and to enforce mandatory school attendance and minimum working age laws on behalf of the children of migratory workers. Then there is the body of 5th and 11th Circuit case law under Title VII permitting employers to enforce English-only requirements. Then there is voting rights discrimination, e.g. LULAC v. Texas or the Los Angeles City Council. There is also the cultural discrimination that can be seen in the post-Spanish-American War era, including treatment of the Filipinos and various interventions in Latin America, where the locals were invariably portrayed as black-skinned. Not to see this is historical revisionism and willful blindness.

        • Roger Clegg – 1 Promoted Comment

          In writing that neither Asians nor Latinos “had much to do with slavery or Jim Crow,” I was not of course suggesting that neither had been discriminated against; both have. But neither has the history that African Americans do and, more to the point, neither has the history of subjecting another group to discrimination while in the U.S. Thus, the visceral appeal (to some) of whites suffering some period of payback discrimination favoring blacks is (or ought to be) absent when it is Asians being discriminated against in favor of Latinos — especially when both groups are heavily made up of relatively recent arrivals.

          • roxanne friedman – 4 Promoted Comments

            Roger Clegg’s response is even more bone-chilling than his original post. By “neither has the history of subjecting another group to discrimination while in the U.S.” could he seriously be contending that blacks have systematically discriminated against whites, latinos or asians? In what state have blacks had the power to create de jure discrimination against whites? What historically black institutions, from state colleges to barbershops, are allowed to discriminate against whites? Where there have been parallel black and white institutions, from high schools to hospitals, for the most part desegregation has meant closing of the black institution. Not to mention the sale of formerly segregated public facilities such as municipal pools or golf links or schools at fire sale prices to private white organizations with the right to discriminate. Who has been protecting the rights of black freedmen and their offspring to property in coastal Georgia? Why is it that powers and territory of the City of Atlanta and surrounding Fulton County have been continually stripped by the white-dominated Georgia Legislature ever since the majority black population achieved political control of local government?

            Clegg’s position that Latinos were not subject to slavery is like saying that czarist Russia was not a slave society, it was a feudal society with serfs. Just because latino farm labor was generally managed on contractual basis, it does not mean that the laws did not show unchallengable favortism toward the contractor, that laborers were permitted to live permanently where they worked, that contractors or farmers were required to provide basic shelter or sanitation or health care, or that laborers were worked any easier than slaves. They just weren’t chattel, which meant that the farmer had no responsibility for them in their old age.

          • Roger Clegg – 1 Promoted Comment

            (This is actually a reply to Roxanne Friedman’s second post; I’m putting it here because, for some reason, there is no “Reply” word to click onto at the end of that post.) Anyway, just briefly: Ms. Friedman misreads my reply to her. I am not contending that blacks have a history of discriminating against whites, Latinos, and Asians; I’m saying that Latinos and Asians don’t have a history of being racial oppressors in the U.S.

          • roxanne friedman – 4 Promoted Comments

            I thank the staff at Scotusblog for permitting this exchange to continue and moving Roger Clegg’s surrebuttal to the right spot.

            What I now understand him to be saying is that somehow advocates of remedial action to mitigate the damages caused by illegal discrimination are urging a “turnabout is fair play” approach in which blacks would have an opportunity to discriminate, which would be unfair to latinos and asians who did not discriminate against them. But this is a straw man, nobody has suggested this except Ionesco.

      • Rick Nagel – 1 Promoted Comment

        Mr. Clegg says that “it is for obvious reasons hard to find students willing to be plaintiffs and lawyers willing to bring the inevitably long, complicated, and unremunerative actions [challenging racial preferences in college admissions]on their behalf.”

        It was not easy in 1950, either – for even more obvious reasons: Thurgood Marshall and his NAACP colleagues knew that the plaintiffs they sought to challenge school segregation in places like Clarendon County, South Carolina would be risking both their livelihoods and their lives by becoming plaintiffs in Briggs v Elliott. Indeed, both Harry Briggs and his wife Liza lost their jobs, and Levi Pearson, another plaintiff, was unable to sell timber from his land or get credit.

        So, yes, there are costs to becoming a plaintiff in a racially-charged dispute. Marco DeFunis, the plaintiff in DeFunis v Odegaard (1974),the first preferential admissions case to reach the Court, was a student at the high school where I taught for 36 years. Marco was ordered admitted to the University of Washington School of Law while his case proceeded, and was about to graduate when the Court dismissed his case as moot (though Justice Douglas wrote an impassioned dissent opposing the idea of racial preferences in admissions). DeFunis paid a price: he was shunned by minority students throughout his three years at the law school. But he didn’t lose his job, or his land, or fear for his life. He went on to practice law until his untimely death in 2002.

        And the NAACP was willing to do “unremunerative” work in the cause of justice. If the dearth of plaintiffs is due to their lack of courage, and the failure of those in the legal community who see race-based preferences as an injustice contrary to our constitutional ideals to represent them pro bono, then so be it.

        Moreover, while Mr. Clegg hopes that cert will be granted in Fisher v Texas, perhaps he and his allies should have seen to it that this rare chance to re-visit Grutter wasn’t replete with “vehicle problems” similar to Mr. DeFunis’s: inter alia, Ms. Fisher will have graduated by the time the case has been decided,her co-plaintiff withdrew from the litigation, and the litigation was not framed as a class action.

        • Roger Clegg – 1 Promoted Comment

          I wish there were more of these cases, too, Mr. Nagel — but the point is that there aren’t, even though the underlying discrimination is widespread, as no one denies. As for the alleged “vehicle problems” in Fisher, I think the petitioner’s reply brief answers them dispositively.

          • Rick Nagel – 1 Promoted Comment

            There aren’t, no doubt, because those displaced by racial preferences lack either courage,conviction or,perhaps, both. In Parents Involved in Community Schools v Seattle School District, young plaintiffs such as Andy Meeks (referenced in Justice Roberts’ plurality opinion) and his family had the courage of their convictions and challenged the racial assignment policy of the Seattle School District, where I taught for 36 years. The plaintiffs in Briggs and its companion cases, of course, risked much more than Andy did (a place in Ballard High School’s Technology Academy): they risked life, limb, and livelihood. Andy, fortunately for him, was able to leave Seattle and enroll in a private school a few blocks from my home in Mercer Island, a suburb of Seattle.

            Apparently there is less resolve when it comes to those opposed to racial preferences in university and law school admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race” by stepping up to the plate and becoming plaintiffs (and staying the course). Perhaps, too, the NAACP of old was strategically more effective advocaste thasn those organizations fighting racial preferences today.

          • Rick Nagel – 1 Promoted Comment

            REVISED REPLY- I apologize for the typos in the first version.

            There aren’t plaintiffs in these cases in no small part because those displaced by racial preferences lack either the courage, the conviction or, perhaps, both. Certainly the pro bono talent and willingness is there.

            In Parents Involved in Community Schools v Seattle School District, the plaintiffs were parents of high school students such as Andy Meeks (Andy is referenced by name in Justice Roberts’ plurality opinion). They had the courage of their convictions and challenged the racial assignment policy of the Seattle School District, where I taught for 36 years. The plaintiffs in Briggs and its companion cases, of course, risked much more than Andy did ( He was denied a place in Ballard High School’s Technology Academy because he is white): they risked life, limb, and livelihood. Andy, was able to leave Seattle and enroll in a private school a few blocks from my home in Mercer Island, a suburb of Seattle.

            Today, apparently, there is less resolve when it comes to those opposed to racial preferences in university admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race. That would require “stepping up to the plate” and becoming plaintiffs. Perhaps, too, the NAACP of old was a more effective advocate and strategist than those organizations fighting racial preferences today

    • Stuart Taylor – 2 Promoted Comments

      In Grutter v. Bollinger, in 2003, Justice O’Connor’s generally admirable instinct for avoiding extremes led her into an internally contradictory position steeped in denial of reality. The result was to bless perpetuation of a regime of very heavy racial preferences in admissions that harms many or most of the supposed beneficiaries.
      She purported to ban “outright racial balancing” and to require that racial preferences end by 2028. But her opinion upholding the supposedly “holistic” system of affirmative action admissions at the University of Michigan Law School would in practice extend for many decades, if not centuries, racial preferences aimed at reaching a “critical mass” of each racial group that is indistinguishable in practice from racial balancing.
      At the same time, by joining the same-day decision in Gratz v. Bollinger striking down the all-too-transparent point system used by the University of Michigan’s undergraduate school, Justice O’Connor signaled that concealment of the nature and magnitude of racial preferences –long indispensable to their political sustainability — would henceforth be the way to insulate them from legal challenge as well.
      The central factual fallacy was Justice O’Connor’s suggestion that racial gaps in academic achievement were shrinking. In fact, indisputable data showed then (and now) that they have grown since 1988. Meanwhile, universities have ignored Justice O’Connor’s assertion that racial preferences should be phased out. Indeed, they became larger and more rigid even at the University of Michigan’s undergraduate school (until Michigan’s voters banned them in 2006).
      Worse, a growing body of empirical evidence shows that many and perhaps most of the supposed beneficiaries are in fact harmed by large racial preferences in admissions. This is not to say that they would be harmed by the relatively modest, balance-tipping admission preferences that many schools pretend to use. But the reality is that, for example, 60% of the blacks admitted to the University of Michigan Law School after Grutter were so far behind that they ended up with GPAs in the bottom tenth of the class.
      And around the country, minority students capable of doing very well at moderately selective schools find themselves unable to keep up with far-better-prepared classmates at the most selective schools in the country. The consequences include bad grades, avoidance of challenging courses, shocking failure rates on professional exams, shattered academic self-confidence and – some studies suggest – less promising career prospects than the same students would have at schools where they could do well.

      • Matthew Boddum – 0 Promoted Comments

        To see the use of affirmative action as a method to “remedy” prior discrimination entrenches us in interminable racial antagonism. It is a clear truism of American law and morality in general that we are each responsible for our own actions. I am responsible for what I do. I have no moral responsibility for what other people do or have done that I can’t affect. The white or Asian applicant who applies to a government-sponsored program is only seeking individual advancement. The white or Asian applicants have absolutely no responsibility for rotten actions committed against black and Hispanic people in the past. Maintaining a strong opinion about how horrible segregation and slavery have been does not entitle one to turn the weapon against innocent bystanders. If you can’t identify or find the person who committed the infraction, you can’t punish anyone. And you certainly will not reach justice by punishing someone else.

        If the problem is that students cannot compete on an equal playing field because the elite admissions policies of certain universities have a discriminatory effect against minorities in the first place, the university can simply choose students from an overall lower level of qualification.

        In addition, how do we know that the motives behind affirmative action policies are actually benign? Couldn’t they also act as fronts for racially selfish opportunists? If I had a racially selfish motive, I would love to run an affirmative action program because I could disguise my true motives under the guise of “diversity”.

  • Kali Borkoski – 0 Promoted Comments

    Day 2:
    In this thread, please discuss the continued vitality of Stenberg v. Carhart in light of Gonzales v. Carhart, as well as the implications for the abortion debate more broadly.

  • Kali Borkoski – 0 Promoted Comments

    Day 2:
    In this thread, please discuss the continued vitality of McConnell v. FEC in light of Citizens United, as well as the implications for the campaign finance debate more broadly.

    • Rick Hasen – 4 Promoted Comments

      McConnell has been left half standing, and the big question is whether the other half falls.
      In Citizens United, Justice Alito’s replacement of Justice O’Connor has meant that the limits on corporate spending in candidate elections have fallen.
      But the other half of McConnell, upholding the “soft money” limits of McCain-Feingold, remains standing, at least for now. Since Justice O’Connor left the Court has passed up two opportunities (RNC v. FEC, and Cao v. FEC) to revisit the soft money question. But both of those cases presented some technical hurdles. The parties argue against a system which allows third parties unlimited sums in elections, but which limits party fundraising and spending. In that argument, they might find a hospitable audience in the 5 Justices who voted to overturn the other part of McConnell in Citizens United.

  • Kali Borkoski – 0 Promoted Comments

    Day 2:
    In this thread, please identify any other significant O’Connor opinions that have been modified or overturned since the Justice’s retirement.

  • Kali Borkoski – 0 Promoted Comments

    Day 3:
    In this thread, please discuss the varying approaches that Justices O’Connor and Kennedy have taken to the role of “swing Justice.”

    • Dahlia Lithwick – 2 Promoted Comments

      It seems to me that the difference between Sandra Day O’Connor and Anthony Kennedy as swing voters comes down to two principal questions: how they swung; and on what issues.

      O’Connor was unpredictable, certainly, but one always had the sense that her objective was to fix a specific problem; to stake out a middle place, a central position, that would bring together the court’s more extreme visions around her own moderating solution. Even when her proposed tests in religion, affirmative action, and abortion cases felt forced and slightly random to her critics, she was groping for the workable fix. Kennedy similarly finds that middle ground, but his purpose seems to be less to fix things than to lay markers for future cases. Kennedy uses his swing vote to make fierce and high minded pronoucements on fairness and justice and freedom. O’Connor used hers to try to get the trains back on schedule.

      O’Connor was also inclined to swing left more often and on more issues, she just did it in a smaller way. She was the crucial fifth vote with the court’s liberals on campaign finance, abortion, religion, and affirmative action. In fact court watchers always marvelled at the ways in which O’Connor’s swing votes tracked public opinion. She somehow voted the polls, at least on hot-button issues. Kennedy is harder to predict and harder to track. Yet it was Kennedy who voted with the court’s liberals on a major gay-rights case and Kennedy who voted with the left to do away with the death penalty for juveniles and the mentally retarded. It’s also Kennedy that does so with an eye to foreign law and what the rest of the world is thinking. That’s why it was Kennedy who was deemed by conservatives “the most dangerous man in America” and targeted for impeachment. Studies show that O’Connor listed leftward on gender and family issues where Kennedy tilts right. Yet Kennedy will vote with the liberals on physician assisted suicide, gay rights, prison overcrowding (“dignity” issues). O’Connor just wanted things to make sense, at least for this one case. Kennedy wants things to be just, at least for the rest of human history.

  • RonNell Andersen Jones – 1 Promoted Comment

    I think Dahlia is exactly right that Justice O’Connor’s swing votes were aimed at pragmatic, workable fixes and Justice Kennedy’s are aimed at more sweeping doctrinal value statements.

    When I arrived in Justice O’Connor’s chambers as a law clerk, I remember expecting her to relish her position as “the most powerful woman in America” — thinking she might well find it exhilarating to be the final word on some of the most significant matters of our time. Quite the opposite was true. She hates, to this day, the term “swing Justice,” and genuinely despised newspaper and magazine articles that focused on her pivotal role and the power she could potentially wield with it. I do not know how Justice Kennedy feels about the position he has inherited, but I think O’Connor’s feelings about being the swing are well reflected in the approach that Dahlia describes her as having taken. Because she neither sought nor particularly enjoyed her position in the Court’s center, she tried very, very hard to make consensus and then, when it did not happen, set about with a solution-oriented approach that almost bemoaned the Court’s inability to offer a sweeping, collective pronouncement, instead of simply offering that pronouncement herself.

  • Kali Borkoski – 0 Promoted Comments

    Day 4:
    In this thread, please predict which of Justice O’Connor’s decisions will continue to guide the Court’s jurisprudence, and which ones will be modified or overruled in the future.

  • Kali Borkoski – 0 Promoted Comments

    Day 4:
    In this thread, please leave any other comments about Justice O’Connor’s legacy.

  • Rick Nagel – 1 Promoted Comment

    Rick Nagel – 1 Promoted Comment

    There aren’t, no doubt, because those displaced by racial preferences lack either the courage, the conviction or,perhaps, both.

    In Parents Involved in Community Schools v Seattle School District, the plaintiffs were parents of high school students such as Andy Meeks (Andy is referenced by name in Justice Roberts’ plurality opinion). They had the courage of their convictions and challenged the racial assignment policy of the Seattle School District, where I taught for 36 years. The plaintiffs in Briggs and its companion cases, of course, risked much more than Andy did ( He was denied a place in Ballard High School’s Technology Academy because he is white): they risked life, limb, and livelihood. Andy, was able to leave Seattle and enroll in a private school a few blocks from my home in Mercer Island, a suburb of Seattle.

    Today, apparently, there is less resolve when it comes to those opposed to racial preferences in university admissions “walking the talk” of Justice Roberts’ oft-quoted “if we want to end racial discrimination, we must stop discriminating on the basis of race. That would require “stepping up to the plate” and becoming plaintiffs. Perhaps, too, the NAACP of old was a more effective advocate and strategist than those organizations fighting racial preferences today.

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