As O'Connor votes, so tilts the Supreme Court
Neither consistently liberal nor conservative, she emerged this term as having 'the vote that matters.'
(Page 2 of 2)
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. In a key immigration case, she joined the conservative wing in a ruling that criminal aliens detained pending their removal proceedings do not have a constitutional right to challenge their automatic detention. And she joined a four-justice plurality upholding a federal law requiring libraries to use Internet filtering software to protect children from exposure to pornography on public library computers.Skip to next paragraph
Subscribe Today to the Monitor
Perhaps the best example of O'Connor's influence came exactly a week ago Monday when she made history by writing a majority opinion that, in effect, split the difference between liberal court members favoring affirmative action and conservatives opposed to it.
What emerged from O'Connor's pen was an endorsement of a 25-year precedent allowing the limited use of race in college admissions to help achieve a diverse student population.
Only moments after her decision was released, the court delivered a second opinion striking down a second affirmative action program. Again, O'Connor was in the majority. In that case, the use of race in undergraduate admissions to the University of Michigan went too far, she said in a concurring opinion, because it did not provide an individualized assessment of each candidate.
Classic O'Connor, legal analysts say.
"She has an intermediate view on race preferences, not as open to them as some and not as opposed to them as others," says Eugene Volokh, a constitutional law professor at UCLA law school and a former O'Connor clerk.
It is never a yes or no proposition with O'Connor. "The test that she gives for when race preferences are allowed has a considerable gray area."
Three days after the affirmative-action decision, the court handed down another landmark. It struck down Texas' Homosexual Conduct Law, which criminalized certain intimate sexual conduct between same-sex couples but not heterosexual couples.
Justice Kennedy wrote the majority opinion. In an important expansion of privacy rights, he and the court's four liberal justices invalidated the Texas law because they said it violated a fundamental right to be free from government interference in sexual matters between consenting adults.
O'Connor concurred in striking down the law, providing an important sixth vote in support of the judgment. But she wrote in a separate opinion that the law should be struck down on equal protection grounds, rather than through a sweeping and much more controversial privacy ruling."This is the quintessential example of her jurisprudence and her approach to the judicial role," says Nancy Maveety, a political science professor at Tulane University and author of the book, "Sandra Day O'Connor, Strategist on the Supreme Court."
"For her in this case, the decision of the majority was going farther than it needed to go to invalidate the problematic law," Ms. Maveety says. "She is not a judge who makes broad, sweeping pronouncements or goes along with them when the court announces them. She is much more an incrementalist."