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O’Connor had immense power as swing vote

Sandra Day O'Connor was guaranteed a place in history when she became the first woman to serve as a justice of the Supreme Court.  But in her years on the court she became a far more significant figure because she was so often the swing vote in high-profile cases.
Justice Sandra Day O'Connor, in a 1993 photo, was the first women to serve on the Supreme Court. Marcy Nighswander / AP file
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Justice Sandra Day O'Connor, who announced her retirement Friday, was guaranteed a place in the history books when she became the first woman to serve on the Supreme Court.

But in her 24 years on the court she became far more significant than simply the first female justice. She was often the swing vote that decided high-profile cases.

Never as consistently conservative as those on the right would have liked, but sometimes providing the decisive fifth vote in cases dear to the hearts of conservatives, such as her vote in 2002 to approve Ohio's school voucher plan, O'Connor, 75, has wielded immense power in her years on the court.

Far from doctrinaire, in many cases O'Connor felt her way toward a compromise position on an ideologically fractured court.

She seemed to approach judging as she once approached her job as an Arizona legislator, sensitive to shifts in public opinion. She was the only member of the current court who had ever been elected to public office.

In a 1989 case called Penry v. Lynaugh, she wrote the majority opinion ruling that a mentally retarded murderer with the reasoning capacity of a 7-year-old could be executed.

This was not a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishments” because, she said, “there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses.”

But by 2002 she had reversed her view, joining five other justices in Atkins v. Virginia in ruling that “death is not a suitable punishment for a mentally retarded criminal.”

The majority said it reached that conclusion because several states had banned execution of the mentally retarded since the 1980s and because public opinion had turned against the practice.

In one of the last dissenting opinions she wrote, O'Connor last week showed her sympathy for the property owner when faced with the power of government.

In a case testing whether the city of New London, Conn., could condemn and acquire private homes for an urban redevelopment project, O'Connor dissented when the majority of the justices backed the city. The property acquired would be turned over to a real estate developer.

As a result of the court's ruling, she said, "The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. ... The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more."

The landmark case for which O’Connor may be especially remembered is her majority opinion in 2003 approving the admissions program at the University of Michigan law school, which used a race-conscious policy to aim for a “critical mass” of minorities.

After O’Connor sided with the court’s more liberal justices in the 5-4 vote to allow the use of race in the admissions policy, conservatives heaped scorn on her.

Scorn from Scalia
Justice Antonin Scalia, often an O'Connor adversary, said the "critical mass" justification "challenges even the most gullible mind" and was "a sham" to provide cover for racial discrimination.

At the conservative think tank the American Enterprise Institute, legal scholar Michael Greve predicted that the Michigan law school decision, Grutter v. Bollinger, "will join Roe v. Wade (the 1973 abortion decision) as a judicial litmus test. And Sandra Day O'Connor — unrivaled in her heartfelt desire for social consensus — will join Harry Blackmun (the author of Roe v. Wade) in the pantheon of deeply divisive justices. The decent, honorable Justice O'Connor does not deserve the vicious attacks coming her way. The fact that she has brought them on herself makes her laughable Grutter opinion only more perplexing."

"She clearly emerged as a swing vote, something that hasn't necessarily endeared her to conservatives. For example, she cast the deciding vote in the case striking down Nebraska's partial-birth abortion statute in 2000," noted Brannon Denning, professor at Cumberland School of Law at Samford University in Birmingham, Ala. "O'Connor's tendency to find a middle ground and eschew foundationalist decisions may be a function of her political experience."

She was appointed to the Arizona Senate in 1969 and was then elected to two two-year terms. In 1975, she was elected to serve as a judge on the Maricopa County Superior Court.

O'Connor's stint there led Arizona's Democratic governor, Bruce Babbitt, to select her as his first appointee to the Arizona Court of Appeals in 1980.

Less than two years later, on July 7, 1981, President Reagan fulfilled a campaign pledge by announcing that he was nominating the first woman to the Supreme Court.

Starr's key role
Columnists Rowland Evans and Robert Novak wrote a few days later that anti-abortion activists were "stunned" by O’Connor’s votes as a legislator in favor of abortion rights.

Evans and Novak reported that "a hurriedly prepared, error-filled memo by a young Justice Department lawyer convinced President Reagan to go through with nominating Judge Sandra O’Connor, even at grave political risk."

The young lawyer’s name: Kenneth Starr, the man who would 18 years later serve as independent counsel in the investigation of President Clinton.

During her confirmation hearings, O’Connor said her vote as a legislator to decriminalize abortion had been a mistake. But she refused to tell the Judiciary Committee how she would vote on abortion cases if any came before the court.

In a 1983 case, O'Connor dissented when the majority of justices voted to strike down an Akron, Ohio, ordinance that prohibited a doctor from performing an abortion on a minor under the age of 15 without a court order or the consent of one of her parents.

O'Connor criticized the Roe v. Wade decision that had legalized abortion nationwide, calling Roe's trimester approach "completely unworkable" and adding that "the state's interest in protecting potential human life exists throughout the pregnancy," not only after the fetus becomes able to survive outside the mother's womb, as the Roe decision had ruled.

Critical of Roe decision
The Roe decision had divided pregnancy into three trimesters, each with differing levels of permissible state regulation.

"The Roe framework," O'Connor said, "is clearly on a collision course with itself." Advances in neonatal treatment were pushing the fetus's ability to survive outside the womb "further back toward conception."

At that point in her career on the court, O'Connor was willing to permit restrictions on abortion so long as they did not impose "an undue burden" or create "absolute obstacles" to a woman's ability to get an abortion.

In a 1986 case in which a five-justice majority struck down Pennsylvania's abortion law, O'Connor complained that the court was going too far in preventing states from restricting abortion. She said it was "painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court" when it involved an attempt to regulate abortion.

But over the next six years O'Connor changed her mind.

In the 1992 case Planned Parenthood v. Casey, O'Connor joined forces with Justice Anthony Kennedy, a Reagan appointee, and Justice David Souter, who'd been appointed to the court by George Bush in 1990, to declare that "the essential holding of Roe v. Wade should be retained."

Together with pro-Roe Justices John Paul Stevens and Harry Blackmun, the O'Connor-Kennedy-Souter trio supplied the five votes to uphold Roe.

Shift on abortion
O'Connor and her allies said, "An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions."

The trio hinted that they thought Roe v. Wade might have been wrongly decided but they would stick by it: "A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision."

In the Casey decision, the court adopted O'Connor's notion of an "undue burden" test to determine whether abortion regulations would pass muster. But it left the meaning of "undue burden" vague, to be decided by judges on a case-by-case basis.

Scalia was sardonic in his attack on O'Connor's apparent change of heart, mentioning her several times by name in his dissenting opinion.

O'Connor's "undue burden" test, Scalia charged, was "unprincipled" and "will prove hopelessly unworkable in practice." He denounced O'Connor and the others in the majority for what he called their "almost czarist arrogance" in ruling that the Roe decision must not be overturned.

Childhood on a cattle ranch
O’Connor was born in El Paso, Texas, on March 26, 1930. She grew up on a cattle ranch that her grandfather had established in 1880 on the Arizona-New Mexico border.

O'Connor, her sister and her brother spent their childhood riding horses, tending livestock and keeping pets such as a bobcat.

In her memoir, "Lazy B," O'Connor said, "The value system we learned was simple and unsophisticated and the product of necessity. What counted was competence and the ability to do whatever was required to maintain the ranch operation in good working order. ... Verbal skills were less important than the ability to know and understand how things work in the physical world."

She attended Stanford University and its law school, where one of her classmates was her future colleague, William Rehnquist.

She married in 1952 and has three sons.