Academic journal article Southern Law Journal

Supreme Court "Majoritizing": What Justice O'connor and Justice Kennedy Can Tell Us about the near Future

Academic journal article Southern Law Journal

Supreme Court "Majoritizing": What Justice O'connor and Justice Kennedy Can Tell Us about the near Future

Article excerpt


The number five is one of the most important numbers in the United States: the number of votes needed for a majority on the United States Supreme Court. Few justices in recent history have more frequently been, or are more adept at becoming the fifth vote than Justice O'Connor. Even fewer justices have found their vote to be as impactful on American life and law as Justice O'Connor. This paper will examine her legacy in that role by comparing her to another "frequent fifth," Justice Kennedy, and in so doing, attempt to reveal some insight, however small, as to how a justice becomes "the fifth vote."

II. Biographical Background

The back-story of a justice can yield insights into the possible origins of their jurisprudential inclinations, such as Justice Scalia's father's academic career as translator and linguist1 being a source of his originalist and textcentric approach to constitutional interpretation. Though such biographical explorations risk caricaturizing a justice's jurisprudence as primarily the product of circumstance, and belittles the slow formation of complex legal theories. Examining a justice's biographical background can give valuable insight into how he or she maneuvers the interpersonal landscape of the Court in order to further their substantive jurisprudence. The pursuit of a majority is more the product of one's upbringing, experience, and worldview than the substantive jurisprudence end a particular justice is working toward.

A. Justice O 'Connor's Biography

Justice O'Connor never foresaw herself on the Supreme Court.2 Not only had she not been admitted to practice before the Court,3 she had not seen an argument before the Court until she was a member of it.4 Indeed, her path to the Court was hardly a traditional one and was lined with equal parts hard work, determination, and serendipity. The fact that Justice O'Connor travelled a winding path is remarkable. The fact that she did so as a trailblazer while maintaining the utmost in composure, civility, and dignity makes her journey a truly great piece of American history.

Justice O'Connor's path to the Court began in El Paso, Texas in 1930.5 Born to a ranching family based along the Arizona-New Mexico border, her early upbringing was defined by the hard work and harsh terrain of ranch life. Her father, Harry, desired to study at Stanford, but that never happened.6 Harry was sent by his father to check on the Arizona ranch, the Lazy-B, and had no interest in staying.7 But his intentions succumbed to circumstance. Ultimately, Harry would run the ranch in a patriarchal fashion, turning it into one of the largest and most successful ranches in the Southwest.8 While ranch life was difficult, Harry's management style, at times strong, enabled him to survive the Depression debt free.9

If Harry was like that frugal and rugged survivor of the desert, the cactus, then Justice O'Connor's mother, Ada Mae, was like an oasis. Like an oasis, she was a rare breed, at least among the women of her time. She was working as a school teacher in El Paso when she met Harry. Married life on the ranch was harsh and isolating. As Justice O'Connor would recount in Lazy-B, "MO [pronounce 'em-ooh'], as she was called, was the only woman among a crew of men."10 She had an incredible ability to define herself in spite of her circumstances. She maintained her appearance and style with the same zealousness of any urbane woman in a major metropolitan area.11 She was ahead of her time in many ways, including her crafting of a lifestyle not bound by her location. It was to these strong individuals that their first child, Sandra Day, was born on March 26, 1930 in El Paso, Texas.12

The lessons instilled in her by her parents made a lasting impression. From her father, Justice O'Connor learned the Stoic persistence required to "get the job done," regardless of what it was or how one felt about it. From her mother, Justice O'Connor learned the value of maintaining grace under harsh circumstances and not letting one's situation define who one is. …

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