The Court's First Woman

In the Center, Hers Was the Vote That Counted

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By Charles Lane
Washington Post Staff Writer
Saturday, July 2, 2005

Justice Sandra Day O'Connor's retirement leaves a hole at the center of the Supreme Court and, in a sense, at the center of the country.

During her 24-year tenure, the Republican and Democratic parties came increasingly under the influence of their ideological cores, and Washington grew deeply polarized between left and right.

But O'Connor remained something of a throwback: a moderate Republican, known as a broker of compromises during her long-ago tenure as Arizona's Senate majority leader, who used her pivotal position on the court to keep the law under which all Americans must live from veering toward any extreme.

On a nine-member court that often mirrored the liberal-conservative split of the larger society, O'Connor repeatedly cast the fifth and deciding vote, not to establish sweeping new constitutional principles but to make law that she thought would make sense to the American people.

The first woman on the court thus became the most powerful woman in the United States -- a fact that was acknowledged even by her conservative rival on the court, Antonin Scalia, who said in a statement yesterday that "she has become a star. The statistics show that during her tenure she shaped the jurisprudence of this Court more than any other Associate Justice."

O'Connor was guided not only by her political fingertips. She had a deep-rooted pragmatic sensibility that owed much to her upbringing on a desolate western cattle ranch -- and rather less to the fixed doctrinal principles contained in law books.

"Justice Scalia said the rule of law is the law of rules," said Eugene Volokh, a former law clerk to O'Connor who teaches constitutional law at UCLA. "Justice O'Connor's view was that the work of the law is making the law work."

Or, as O'Connor put it in dissenting from a ruling by liberal and conservative colleagues who teamed up to strike down state sentencing guidelines in a 2004 decision, "If indeed the choice is between adopting a balanced case-by-case approach . . . and adopting a rigid rule that destroys everything in its path, I will choose the former."

But when they were not angling for her vote, lawyers of both the left and the right would sometimes complain that her approach introduced too much instability into the law and made too many important issues into guessing games about her intentions.

"We have a living Constitution. Her name is Sandra Day O'Connor, and thank God she's retiring," Kevin J. "Seamus" Hasson, founder and president of the conservative Becket Fund for Religious Liberty, said yesterday.

"Her support for separation of church and state was not consistent," said Barry W. Lynn, executive director of the liberal Americans United for Separation of Church and State.

In his 1980 GOP presidential campaign, Ronald Reagan, concerned about the pro-Democrat "gender gap" that had opened up among voters, promised that he would name a woman "to one of the first Supreme Court vacancies in my administration."


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