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 , Staff writer of 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.

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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. 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.

Influence on affirmative action

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."

Tempering the majority

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."

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