As O'Connor Votes, So Tilts the Supreme Court ; Neither Consistently Liberal nor Conservative, She Emerged This Term as Having 'The Vote That Matters.'

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, June 30, 2003 | Go to article overview

As O'Connor Votes, So Tilts the Supreme Court ; Neither Consistently Liberal nor Conservative, She Emerged This Term as Having 'The Vote That Matters.'


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


It now seems almost impossible in this city of unrestrained superlatives to overstate the influence of Sandra Day O'Connor at the US Supreme Court. In her 22 years on the nation's highest court, Justice O'Connor has firmly established herself as the single most important voice on a nine-member tribunal that decides some of America's most difficult and politically contentious issues, including abortion, religion, race, and the death penalty.

By occupying the middle ground on a polarized court, she has been able to ensure more often than not that it is her more moderate view of the law that prevails rather than those of her more liberal or conservative colleagues on the court.

This year, more than any other, her power and influence have been on full display. And it goes a long way in explaining how a moderate- to-conservative court can sometimes deliver major liberal victories.

In the term that just ended, the Supreme Court issued 13 decisions decided by a 5 to 4 vote. O'Connor voted in the majority in every one of them, including writing a landmark opinion upholding the use of race as a factor in college admissions programs.

She is neither consistently conservative nor consistently liberal. But she is consistently on the winning side. And that has legal analysts searching for the right combination of words to describe her importance.

"She is the most powerful woman in the history of the universe," quips Thomas Goldstein, a Supreme Court advocate and scholar, during a panel discussion of the court's recently concluded term.

Although the comment drew laughter from a contingent of bleary- eyed Supreme Court reporters who have spent recent days pouring over landmark opinions dealing with affirmative action and gay rights, no one challenged the underlying assertion. "If we didn't have a tradition of naming courts after the chief justice, this would be the O'Connor court," says Ronald Klain, a Washington lawyer and former counsel to Al Gore.

"She is basically in charge," adds Mr. Goldstein. "As she often points out, she has only one vote; it just happens to be the one that matters."

Casting the decisive vote

It isn't just that O'Connor often emerges as the tiebreaker in an otherwise even split between conservatives and liberals. She often uses her deciding vote to achieve what in her view is a measure of justice. To do it requires a close examination, not only of the law, but often of the particular facts of a case. This ad hoc approach, unmoored from an overriding judicial philosophy, can sometimes make hers a difficult vote to predict.

This year was no different.

On the liberal side, she concurred in a landmark gay rights decision authored by Justice Anthony Kennedy. She chose women's rights over federalism in upholding the application of the federal Family Medical Leave Act to state employers. And she sided with the court's liberal wing in upholding a challenge to the use of client escrow accounts to underwrite legal services for the poor.

On the conservative side, she wrote two majority 5-4 decisions upholding California's Three Strikes Law, authorizing potential life prison terms for repeat shoplifters. …

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