These voting blocs -- and the power that O'Connor wields by straddling them -- emerged more by accident than by design. She joined the court in 1981, as an appointee of President Ronald Reagan. The court's liberal-conservative split is largely the consequence of events that happened after that, including the unforeseen but steady leftward movement of two other Republican appointees, Stevens and Souter.
Both O'Connor and the other justice sometimes described as a swing voter, Anthony M. Kennedy, are generally conservative. He, too, was appointed by Reagan, joining the court in 1988. Yet of the two, O'Connor is the more pivotal. She provides a fifth vote to make a liberal majority more often than Kennedy does. During the court's 2002-2003 term, she sided with the liberal bloc in four of the 15 cases that resulted in a 5 to 4 vote; Kennedy did not do so once.
Those who argue cases before the Supreme Court ignore these statistics at their peril. Many concede privately that they write their court briefs with O'Connor in mind and pitch their oral arguments to her as well. Richard Lazarus, a professor of law at Georgetown University who organizes moot courts for lawyers preparing to argue before the court, says that the advocates often ask him to use O'Connor's former law clerks as practice "justices" -- on the theory that this is the next best thing to facing her.
"What I do, and what I advise people arguing cases, is to treat all the justices with great respect," says Lazarus, who also practices before the court. "But . . . when Justice O'Connor asks a question at oral argument, every advocate would be well advised to answer in full, and pause and look at her, because nothing is more important to you than making sure you've addressed her concerns. With the others, it may not make a difference."
Second, there is a crucial difference in the way O'Connor and Kennedy make decisions. To oversimply a bit: When Kennedy switches sides, he really switches sides. Take his historic opinion striking down Texas's sodomy law last year. One possible resolution to the case was to rule it a violation of the constitutional guarantee of equal treatment under state law because it criminalized sodomy between gays but not between straights. Instead, Kennedy wrote a ringing denunciation of prejudice against homosexuals, striking down the law as a violation of sexual privacy rights -- an approach that not only overruled a 17-year-old precedent but also invalidated all remaining sodomy laws and gave a huge symbolic boost to the gay marriage movement.
O'Connor voted with Kennedy but drafted a separate concurring opinion that relied on the more limited equal-treatment argument. This is characteristic of her approach to constitutional issues -- particularly contentious social questions such as abortion, religion and affirmative action. Cass Sunstein, a professor of law at the University of Chicago, calls O'Connor's method "judicial minimalism." It amounts to a reluctance to make any more law than absolutely necessary to decide the case in front of her. She decides big cases without necessarily settling big issues.
The result: It matters not only how O'Connor votes but also what she writes. Even her opinion in the pledge case refined her theory of government "endorsement" of religion in ways that could help decide future church-state cases.
Her opinions on abortion have proved crucial over the years. In 2000, for example, the court ruled 5 to 4 that a Nebraska law banning late-term abortions violated the constitutional right of a woman to terminate her pregnancy established in Roe v. Wade. Writing for the majority, Breyer struck down the Nebraska statute, which was similar to laws in 30 other states, because it could be read to ban some second-trimester abortions and because it lacked a sufficient exception to protect the health of a woman. Thus, Breyer concluded, it imposed an "undue burden" on the right to choose -- violating a standard that O'Connor had set forth in a 1992 case affirming Roe.
O'Connor joined Breyer but, crucially, added a separate concurring opinion. While disapproving of Nebraska's particular law for the same reasons Breyer did, she would not forbid all efforts to legislate against so-called partial-birth abortion; rather, she suggested criteria that would make such laws constitutional. Because O'Connor's was the fifth vote against the Nebraska statute, her opinion represented, de facto, the controlling rule of law. And it contained, at least in theory, some wiggle room for legislators. That has profound implications for the future of the federal law banning the procedure, which was signed into law by President Bush last year and which is being challenged in lawsuits that will inevitably reach the Supreme Court. "We were certainly cognizant of Justice O'Connor's opinions," particularly in the Nebraska case, says Rep. Steve Chabot (R-Ohio), the law's chief sponsor in the House. "We really carefully crafted the bill, trying to do all we could to withstand a constitutional challenge."
The law defined the banned procedure in line with O'Connor's opinion, so that it would not include second-trimester procedures. Its drafters brought in specialists to testify that a very late-term abortion could never be necessary to protect a woman's health -- then endorsed this testimony as legislative "findings" that the courts must heed. But the law, for all its popular support -- the blessing of large majorities in both the House and Senate and the president's signature -- still depends on the approval of a 74-year-old grandmother from Arizona.
O'CONNOR'S PERFORMANCE ON THE COURT REFLECTS NOT ONLY A CONSCIOUS APPROACH TO LAW but also a long-established approach to life. "She is who she is, and that is the way she acts," says Michael Deaver, the former Reagan White House adviser who helped O'Connor through the confirmation process when she arrived in Washington and has remained a friend ever since. "She doesn't think of it as being powerful. Just being Sandra is how she's gotten power."
Any discussion of what it means "to be Sandra" must start with her childhood on the Lazy B Ranch, a 250-square-mile expanse of desert cattle range on the Arizona-New Mexico border. The Lazy B, O'Connor told me in a May 2003 interview, was so huge and so isolated that growing up there "was like living in your own country almost." As O'Connor recalled it in her 2002 book, Lazy B, a memoir co-written with her brother, businessman Alan Day, the ranch was hot, quiet and, above all, dry. "We would watch the skies constantly, hoping for rain," she wrote.
The property, most of it leased from the U.S. government, was on high, sloping terrain that ran from 6,200 feet above sea level in the Peloncillo Mountains to 3,400 feet at the banks of the Gila River. For playmates, O'Connor had lizards, a bobcat, horses with names such as Chico and Hemorrhoid, and a handful of leathery cowboys, who taught her how to ride and cope with cactus thorns.
The Lazy B started off without electricity and running water, but Sandra, Alan and sister Ann, who, like Sandra, later became a politician in Arizona, did not grow up poor. By the time Sandra turned 7 in 1937, the family was able to expand its modest ranch house to include two new bedrooms, a bathroom, running water, a gas stove and electricity. By 1950, the place appeared in photographs as a trim, modern adobe structure that would not have looked out of place in a Phoenix suburb.
In that isolated domain, everyone had to conform to the benevolent dictates of Harry Day, Sandra's father -- an opinionated rancher who was grudging with compliments and expected his workers and his children to do things his way. Whether competing with him at pinochle or painting a screen door to his specifications, young Sandra was expected to obey the rules and do her best.
In dinner table conversations with her father, affectionately known by the initials "D.A.," and her mother, Ada Mae, or "M.O.," O'Connor heard about the excesses of the New Deal and absorbed her lifelong allegiance to the Republican Party. The arid, self-sufficient ranch was probably the crucible in which O'Connor's later support of decentralized government and states' rights was formed. And in long days accompanying her father and his cowboys on their arduous jobs, she became comfortable working and even competing with men, to a degree that was highly unusual in her generation.
"She spent a whole childhood learning to operate in a man's world. Women who don't have to learn those skills later on," says Hattie Babbitt, a former Clinton administration official who met O'Connor in the 1970s, when O'Connor was the only female judge in Phoenix's trial court and Babbitt was one of the few women arguing cases.
At the same time, the Lazy B was not the sort of place where it necessarily paid to dig in your heels over points of pride or principle. Life was a series of exercises in problem-solving: how to cure a sick animal without a veterinarian or use the sun's rays to heat water in the days before electricity. "The value system we learned was simple and unsophisticated and the product of necessity," O'Connor wrote. "What counted was competence and the ability to do whatever was required to maintain the ranch operation in good working order . . . Personal qualities of honesty, dependability, competence and good humor were valued most."
© 2004 The Washington Post Company
Supreme Court Justice Sandra Day O'Connor, in 2001 addressing a meeting of Minnesota Women Lawyers, is the justice most in demand as a public speaker.
(David Brewster - Minneapolis Star Tribune via AP)