In 1983, the court considered an Akron, Ohio, ordinance that limited abortion, including a required 24-hour waiting period. The court struck it down, but O'Connor dissented. "The Roe framework," she warned, "is clearly on a collision course with itself," because technology was hastening the day when a fetus could survive outside the uterus in the first trimester of pregnancy. She heartened conservatives again in 1986 and 1989, when she also voted to uphold abortion regulations in Pennsylvania and Missouri. By 1992, with Souter and Thomas on the court, it seemed that there might be five votes to overturn Roe as the justices considered a challenge to a new Pennsylvania antiabortion law.
But O'Connor refused to overturn Roe. Yes, her past opinions had spoken disparagingly of Roe, but she had never actually advocated overturning it. Rather, she had proposed what she regarded as the proper constitutional balancing test: The right to abortion could be limited only as long as the state did not impose an "undue burden" on the right to choose. She hadn't defined what an "undue burden" might be. She invoked that language in the '92 Pennsylvania case, joining Souter and Kennedy in a jointly written opinion that reaffirmed Roe and struck down the law's requirement that wives notify their husbands before having an abortion.
The Sandra Day O'Connor who built a moderate record on abortion in Arizona had prevailed. It could not be an accident, Justice Harry A. Blackmun later remarked in an oral history contained in his papers, that the Supreme Court's first woman had voted the way she had. "She is a believer in states' rights in the sense that she feels an issue of this general nature should be left to the state legislatures and not be federally constitutionalized," said Blackmun, who also noted that "she is a woman and may fear somewhat any accusation of being a traitor to her sex. Some women's organizations would so conclude."
On race, O'Connor also offered affirmative action foes reason to believe that she would eventually vote to abolish all programs that gave minorities preference in hiring, contracts or school admissions. During the 1980s and 1990s, she helped establish the rule that affirmative action should be subjected to the same "strict scrutiny" as discrimination against minorities. As she saw it, only "compelling" governmental goals could justify affirmative action, and, even then, programs would have to be "narrowly tailored." In cases during this period, she said that neither a school district's desire to provide minority teachers as role models nor the Federal Communications Commission's desire to distribute broadcast licenses to minorities met that standard.
Encouraged by O'Connor's opinions and votes, conservative legal activists launched lawsuits on behalf of white students who claimed that they had been denied places in universities or professional schools because of racial preferences for minorities. The goal was to generate a Supreme Court case that would reverse the shaky compromise Powell had crafted in Bakke, eliminating "diversity" as a rationale for racial preferences. By last year, the court was ready to hear challenges to affirmative action at the University of Michigan's undergraduate campus and law school.
Yet for all her past reservations about affirmative action, O'Connor never slammed the door on it. "The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it," she wrote in her 1995 opinion enshrining "strict scrutiny" of affirmative action. In the Michigan cases, O'Connor darted through this loophole, joining with the four liberals to uphold the Michigan law school's race-conscious admissions policy. Diversity in higher education could, indeed, qualify as a compelling state interest, she wrote for the majority. Unlike Michigan's undergraduate college, the law school did not assign bonus points to racial minorities, but gave all would-be students individualized consideration, and that, O'Connor wrote, made its approach constitutional under Powell's opinion in Bakke.
The Michigan cases erased much of the animosity liberals harbored against O'Connor for Bush v. Gore -- and enraged the right. Critics said that it was impossible to square her embrace of the diversity rationale with her past opinions. Long years in Washington, rubbing elbows with the Georgetown establishment, had swayed O'Connor, many conservatives grumbled. And her opinion did show great deference to the views of large corporations, university deans and retired military officers, whose friend-of-the-court briefs called affirmative action necessary to educate a racially integrated elite. "Sandra Day O'Connor was sold a bill of goods," Jennifer C. Braceras, a conservative member of the U.S. Commission on Civil Rights, wrote in Legal Times.
Yet O'Connor has been a racial moderate since her Arizona days. George Benjamin Brooks Sr., president of the Phoenix area chapter of the NAACP from 1963 to 1972, remembers demanding an administrative hearing on behalf of a group of black women who had passed a state civil service test but had nevertheless been denied jobs back in the 1960s. O'Connor, then an assistant state attorney general, drew the assignment of representing the state agency in the case. But, according to Brooks, she worked out a compromise rather than litigate her client's questionable behavior. "She soon concluded very readily that [her side's] case had no merit and that the commissioner was abitrary and capricious" toward the women, Brooks says.
Whereas Rehnquist remains deeply unpopular among Arizona's African Americans, blacks of O'Connor's generation in Phoenix hold her in high esteem. "My first trial was before her as a public defender. It was a very demanding experience, but a very fair experience," says Cecil B. Patterson Jr., who went on to serve with O'Connor on the Arizona Court of Appeals. When Justice Thurgood Marshall died in 1992, it was O'Connor whom the leaders of Phoenix's black community invited to speak at a memorial service at First Institutional Baptist Church.
THIS IS THE CONSTITUTION THE O'CONNOR COURT HAS GIVEN AMERICA: It protects the states against overweening federal power, except when Congress is acting in defense of gender equality. It guarantees the right to choose an abortion, but perhaps not whenever you feel like it. It bans discrimination against whites as strictly as it bans discrimination against blacks, except when university administrators say racial preference will foster the success of a diverse society. It is, in short, a document interpreted for that well-intentioned mass of contradictions known as 21st-century suburban America.
To O'Connor's critics, "judicial minimalism" is anything but an exercise in restraint. Instead, they say, by so often leaving key questions to be litigated another day, O'Connor has channeled more and more of society's important decisions into the federal courts, where they must await the ruling of nine unelected justices -- of whom the pivotal one is O'Connor herself. This not only aggrandizes the Supreme Court, it aggrandizes her.
"There is no predictability, no certainty in the law," says John C. Yoo, a professor of law at the University of California at Berkeley who served as a Justice Department constitutional law specialist in the George W. Bush administration. "Every time there is some small change in the law, you have to go back to the Supreme Court. That increases the power of the court, and it increases the power of people who are in the middle of the court -- and who don't like clear rules."
To O'Connor's admirers, "judicial minimalism" is common-sense jurisprudence. In this view, O'Connor has played a crucial role in dampening any extreme tendencies of the court's liberal and conservative wings, preventing either from imposing its worldview much beyond the particular facts of a particular lawsuit. Legal tests such as "undue burden" may create more work for the lower courts, and for legislators, but in an America split between Red and Blue, her approach beats letting ideologues make or break fundamental individual rights. Says Sunstein, "I think it's good as a presumption, especially in the controversial areas where the country is divided."
O'Connor enjoys the advantage of operating in a culture that has come to assume the Supreme Court will handle difficult national issues that, in another era, might have been hashed out in the legislative and executive branches. Thus, when the court takes tough issues -- abortion, race, hanging chads -- out of the political sphere, much of the public seems grateful. Bush v. Gore may have been reviled by the legal commentariat as an overtly political exercise, but public opinion data collected by the Pew Research Center for the People and the Press shows that it barely dented the court's reputation.
Though O'Connor is now 74, all previous rumors that she might step down from the court have proved false, and friends see no indication that she is preparing to do so soon. "This is very heady, very exciting," says Mary Beth Growdon. "If she were to retire, then what would she do?"
EVERY JUSTICE IS IN DEMAND AS A PUBLIC SPEAKER, but none more than O'Connor. In December, O'Connor was the honoree of a group called Jobs for America's Graduates, a national nonprofit organization established by corporate donors in 1980 to help at- risk youth finish high school and find jobs. It is the sort of benign, nonpartisan charity O'Connor herself had devoted time to back in her Phoenix days, and she seemed very much in her element as she nibbled lunch at a Washington hotel, besieged by a steady stream of well-wishers. There were about 200 JAG kids in the room, but most of the people hovering around her table were men. They were corporate types and politicos, yet as they approached the elderly lady in magenta couture, their body language was all about deference.
Finally, it was her turn to accept an engraved plaque -- JAG's first Role Model of the Year award. O'Connor told the audience about growing up on the Lazy B. She talked about her early frustrations in the job market, and working for free at the San Mateo County attorney's office. She'd never heard of a role model until she got on the Supreme Court. And it wasn't until she was an undergraduate that anyone ever told her "the individual can make a difference in this world."
"You can start at the bottom and make something of it," she concluded. And then, hoisting the immense plaque, she exclaimed, "Look at this marvelous thing!"
Charles Lane has been covering the U.S. Supreme Court for The Post for four years.
© 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)