Copyright 2000 / Los Angeles Times
Los Angeles
Times
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July 9, 2000, Sunday, Home Edition
SECTION: Opinion; Part M; Page 2; Opinion Desk
LENGTH: 1150 words
HEADLINE:
THE NATION / THE SUPREME COURT;
IT'S ALL ABOUT O'CONNOR
BYLINE: Edward P. Lazarus, Edward P. Lazarus is the
legal correspondent for Talk magazine and, the author of "Closed Chambers: The
Rise, Fall, and Future of the Modern, Supreme Court."
BODY:
According to conventional wisdom, the
current U.S. Supreme Court is highly unpredictable. It lurches without
consistency from politically liberal decisions, like the ruling that Nebraska's
ban on partial-birth abortions violated a woman's right to
choose, to politically conservative ones, like the ruling striking down the
Violence Against Women Act as an intrusion on state's rights.
This is
half-right. The court does lurch across the political spectrum. But in at least
one important sense, the court is predictable: As Justice Sandra Day O'Connor
votes, so goes the court. During the just-completed term, the court issued
full-blown opinions in 74 cases. O'Connor voted in dissent only four times,
tying the modern record for fewest votes in the minority. (By contrast, Justice
John Paul Stevens dissented in 27.) O'Connor's feat is all the more remarkable
when one considers the justices split 5-4 in 21 of the 74 decided cases, the
highest percentage of 5-4 splits in a decade. Simply put, though the justices
are closely divided on many issues, O'Connor holds the balance of power and
wields it to uncommon effect.
Yet, these impressive statistics do not
fully capture the enormity of O'Connor's swing-voting influence. In many of the
most fiercely contested and vital areas of law, she is not merely one
undifferentiated member of a narrow five-justice majority. Instead, O'Connor
seems to purposefully write separately from the majority, knowing that, because
her vote is essential to that side, she can bend the court--and the law--to her
will.
Take the issue of abortion. Through separate writings in 5-4
cases, O'Connor has forced on the court her test for determining the legality of
restrictions: They are legal unless a restriction imposes an "undue burden" on a
woman's right to choose. O'Connor, moreover, is adamant about having her
personal view of what constitutes an "undue burden" prevail at the court. In the
recent partial-birth abortion case, for example, she wrote separately from the
other four members of the majority to signal that in her almost surely
controlling view that a more carefully crafted ban would be constitutional.
O'Connor is similarly in charge in the many cases defining the
constitutionally mandated separation of church and state. Through separate
concurrences, O'Connor created her own idiosyncratic test for deciding whether a
challenged state action constitutes an impermissible establishment of religion.
In her view, the Constitution precludes government-sponsored activity that
appears to "endorse" religion.
Because of the deep split at the court in
cases involving religion--whether the issue is school prayer, a holiday display
or government subsidies for sectarian schools--O'Connor's test holds sway.
Indeed, O'Connor worked hard this term to preserve her pivotal role in the
religion case and already seems to have positioned herself between the court's
rival factions on the issue of school vouchers, the next likely landmark
challenge in this field.
Ditto in the area of affirmative action. The
court is split 4-4 between those justices (William H. Rehnquist, Antonin Scalia,
Anthony M. Kennedy and Clarence Thomas) who would end affirmative action
entirely and those (Stevens, David A. Souter, Ruth Bader Ginsburg, and Stephen
Breyer) who would permit it fairly liberally. At the center again, O'Connor
dominated every affirmation-action case in the last decade with her
not-never-but-almost-never approach. That influence shows no signs of waning.
All told, it does not seem too much to say that O'Connor is probably the
most powerful woman in the world. The Supreme Court is unsurpassed among Western
judicial institutions in the reach of its authority. On the current court, which
shows an eagerness to flex its muscles, O'Connor not only dictates on matters of
race, religion and the right to privacy, she is the leading force behind the
court's dramatic revival of the doctrine of state's rights as a curb on the
federal government.
This concentration of authority is regrettable. Part
of the problem is institutional. When a court consistently decides its most
important cases by a 5-4 division, it is deeply unsettling, especially when, as
with this Supreme Court, its rulings frequently strike down major legislation or
overturn long-standing precedents. So much the worse when the huge legal issues
of the day are controlled not by five justices, but one.
Of course, this
predicament is not entirely O'Connor's fault. Her position as the swing vote is
dictated significantly by the court's deep and unbridgeable division and
O'Connor's efforts to moderate the persistent radicalism of her supposedly more
"conservative" brethren.
But identifying the reasons for O'Connor's
influence does not change the damage done when the Supreme Court is effectively
reduced from a body of nine to a body of one. That damage is heightened by the
highly personalized nature of O'Connor's jurisprudence.
What is an
"undue burden" on the right to abortion except what O'Connor says it is? What is
an "endorsement" of religion? Such standards are either inherently circular or
of a purely I-know-it-when-I-see-it variety. Personalized judgment has a place
in the law and may, at times, be inescapable, as with such matters as
pornography, which many view as being in the eye of the beholder. But O'Connor's
constant resort to self-referential formulas when deciding fundamental issues of
civil liberty fuels the idea corrosive to the rule of law that our rights are
creatures of an individual justice's personal preferences.
Certainly,
the way O'Connor applies her own standards encourages this view. In her 20 years
on the court, O'Connor has consistently struck down race-based
affirmative-action plans. Yet, in a landmark case, she cast the decisive vote
approving such a plan for women. Similarly, this term, O'Connor provided the
crucial fifth vote for permitting the Boy Scouts of America to exclude gays. In
the majority view that O'Connor joined, the Boy Scouts' right to freedom of
association trumped the right of gays not to be discriminated against. How is
it, then, that a few years before, in a case raising a nearly identical clash of
rights, O'Connor wrote the majority opinion forcing the Jaycees to admit women.
Liberals have come to celebrate the role O'Connor plays, despite her
basic conservatism. As they see it, O'Connor saved Roe vs. Wade (sort of) and,
as far as the left is concerned, is all that stands between this court and a
legal abyss of Rehnquist's and Scalia's design.
But the cost to the law
is great. For lower-court judges, prospective litigants and the lay public as a
whole, O'Connor's wholesale dominance of the law is a formula for uncertainty,
confusion and a sickly dependence. Unfortunately, that is the real legacy of the
court's recently completed term. *
GRAPHIC:
GRAPHIC-DRAWING: (no caption), HENRIK DRESCHER / For The Times
LOAD-DATE: July 9, 2000 
