The States' Champion: Sandra Day O'Connor Was an Eloquent Defender of the States' Role in Our Federal System

Article excerpt

Sandra Day O'Connor was a pioneer for women before she was named to the Supreme Court in 1981. A decade earlier, she was the first woman to be the majority leader of the Arizona Senate. And in her long career at the U.S. Supreme Court, she brought to the bench not just a female presence, but the distinctive perspective of a state legislator.

She was interested in facts and fairness more than in following a theory as to how cases should be decided. In death penalty cases, for example, O'Connor served with liberal justices who nearly always voted to strike down death sentences as unconstitutional. She also served with conservatives who believed the Supreme Court had no business second guessing the state courts, judges and juries who had found a defendant guilty and deserving of death.

O'Connor was in neither camp. While she firmly believed the death penalty was constitutional, she also voted sometimes to reverse death sentences when there was reason to doubt the defendant's guilt. Lawyers on both sides of such a case knew she would be thoroughly prepared for the oral argument and at least open to persuasion.

Her fellow Arizona legislators remembered her as being well-prepared and a stickler for detail. "She worked interminable hours and read everything there was," Democratic Senator Alfredo Gutierrez recalled. "We'd go on the floor with a few facts and let rhetoric do the rest. Not Sandy. She would overwhelm you with her knowledge."

Except for the reference to "Sandy," veteran lawyers at the Supreme Court would recognize and repeat such a description. She was famous for asking factual questions about the early stages of a case that might have gone for years. Lawyers knew that they too had to be thoroughly prepared.

"Any lawyer who walked up to that podium had to be thinking about Justice O'Connor and how you could possibly win her vote," said Washington attorney Carter G. Phillips. Since O'Connor was so often the deciding vote in a court that was evenly divided between a conservative and liberal factions, the oral arguments often sounded as though they were steered toward her.


But the emphasis on O'Connor's being a "swing vote" in the Supreme Court understates her significance and her contribution to the law. She was the Court's strongest voice for states' rights, and she laid the groundwork for restoring the principle that the sovereign states have an equal role in the nation's governance.

She often spoke for the Court in cases involving the states, and she used the opportunity to set out a broad defense of the state's role. In 1991, it was a case testing whether Missouri's then-Governor John Ashcroft could enforce a state law that required judges to retire at age 70. Judge Ellis Gregory sued, contending this mandatory retirement rule violated the federal law against age discrimination.

"Our Constitution establishes a system of dual sovereignty between the states and the federal fovernment," O'Connor wrote. "This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the states in competition for a mobile citizenry ... Perhaps the principal benefit of the federalist system is a check on abuses of government power. A healthy balance of power between the states and the federal government will reduce the risk of tyranny and abuse from either front."

In Gregory v. Ashcroft, O'Connor went on to hold that the states have the power to "determine the qualifications of their most important government officials. [This] is an authority that lies at the heart of representative government. …