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Justice O'Connor and Affirmative Action

By Joan Biskupic
Washington Post Staff Writer
Sunday, October 5 1997; Page A01

The Supreme Court opens its new term Monday with a docket highlighted by one of the most divisive questions in America today: whether affirmative action has gone too far. In a case that began when a school board laid off a white teacher to save a black teacher's job, the court could set an important standard for deciding when racial preferences should play a role in the nation's workplace.

For all its potential impact, though, the dispute from Piscataway, N.J., will probably be decided by the views of just one justice, Sandra Day O'Connor.

The controversial case and many others this term – from sexual harassment to immigration and property rights – play uniquely to individual justices' interests and personal conflicts. And because of the emerging dynamic among these nine justices, how these issues are decided could depend on which of the court's factions – on the left and on the right – gets the narrow edge.

The nine justices who will ascend the bench Monday have a rare group tenure for the modern court.

In the past decade, with retirements and change, no nine justices were together for more than two terms.

Now, alliances have formed and the ideological divide between the justices has deepened.

Key justices, either because they hold the crucial fifth vote or possess the dominant voice in a particularly knotty area, could pull more weight and be especially critical in the new term.

The dispute from Piscataway presents such a scenario, legal experts say. Faced with the need to lay off staff but mindful of racial diversity, the school board there chose to keep a black teacher, Debra Williams, over an equally qualified white teacher, Sharon Taxman. Taxman sued for reverse discrimination and won in lower courts.

Now, it is O'Connor, the court's first female justice and the swing vote on race policies, who likely will decide whether the board's action was legal and if racial diversity alone is a valid reason for an employer to choose a person of one color over another.

The case comes to the court at a time when race is high on the national agenda, with efforts underway in several states to ban racial preferences. The court will soon announce whether it will hear another important affirmative action dispute this term, a constitutional challenge to California's Proposition 209 law that bans preferences based on race in government hiring, contracting and college admissions.

O'Connor is an intriguing justice to be at the center of an emotionally charged discrimination case like the one from Piscataway. Although she has a conservative approach, believing government should have a limited role in solving society's problems, O'Connor herself has felt the sting of bias. She graduated from Stanford Law School in 1952 only to be offered a position as a secretary when she applied to a prestigious firm.

"Sandra Day O'Connor is where it's at," said Harvard University law professor Christopher F. Edley Jr. "I think it's fair to say that one detects an ambivalence in how she has written about race, and the ambivalence is like that in society at-large."

In 1986, O'Connor was in the five-justice majority ruling against a school board that laid off white teachers to preserve the jobs of blacks with less seniority. The layoff decision had been made without any evidence of previous discrimination against black teachers. O'Connor wrote separately to say such affirmative action might have been permitted had the board shown it was trying to make up for past discrimination. And, indeed, the next year O'Connor voted to uphold a voluntary affirmative action plan that allowed a woman in a county transportation department to be promoted over a man who scored higher during qualifying tests because the county had wide disparity in the numbers of men and women in its top ranks.

The Piscataway case, which involves two equally credentialed teachers, will test whether a school board that has no evidence of past bias can rely on the goal of diversity in using race as the deciding factor in who gets the job.

Overall, O'Connor is part of a five-justice, conservative majority whose views have come to define this court. Led by Chief Justice William H. Rehnquist, the bloc is formed by Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Rehnquist was appointed 25 years ago by President Richard M. Nixon and elevated in 1986 by President Ronald Reagan. O'Connor, Scalia and Kennedy also are Reagan appointees. Thomas was put on the bench by President George Bush.

As a group, they favor enhanced state sovereignty, limits on congressional power, tougher standards for criminal defendants, and generally less reliance on race-based preferences. They have demonstrated new concern for property rights too that may be advanced in a case testing who has claim to the interest money earned on lawyer-client trust fund accounts, a high-stakes dispute involving money now used to pay for legal aid to the poor.

Last term, the five prevailed most often in the cases decided by 5-4 votes. And they were a tight group: Scalia and Thomas, the court's strongest bond, voted together in all but one of the 80 cases heard. Rehnquist and O'Connor voted together about 90 percent of the time, as did Rehnquist and Kennedy.

People outside the court constantly speculate on when Rehnquist, 73, might retire and whether President Clinton will have a chance to name the new chief justice. Yet while Rehnquist is consistent in his legal opinions, he is otherwise an unpredictable, self-determining soul. He is partisan to the core and may be reluctant to retire while there is a Democratic president. His health appears good, recent back surgery was successful and, his former law clerks say, if he can hold out until Clinton leaves office in 2001, he will.

On the other side of the ideological divide, making up what is loosely considered the liberal bloc, are John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Yet their usually cautious, pragmatic approach leaves them positioned distinctly to the right of the the groundbreaking liberalism of the late Justices William J. Brennan Jr. and Thurgood Marshall that led courts to stretch the written law in an attempt to cure society's problems.

Stevens, at 77, the eldest justice and also the subject of retirement speculation, was appointed by Republican President Gerald R. Ford. Souter was named by Bush. Ginsburg and Breyer were appointed by Clinton. There is more shifting and jockeying for leadership among this group on the left, although in both groups, individual members break ranks – Kennedy and O'Connor are most often key swing voters – or have become individually identified with particular issues.

One question this term is whether Ginsburg, a devoted feminist who penned the current standard for judging sex discrimination in a 1996 case involving the Virginia Military Institute, will try to use an immigration dispute that treats mothers and fathers differently to advance equality between the sexes.

Under federal immigration law, a child born overseas to an unmarried mother who is a U.S. citizen and to a foreign father automatically is granted American citizenship. But hurdles to citizenship arise for the illegitimate child whose father is a U.S. citizen but whose mother is not.

A lower court found it reasonable for Congress to require certain evidence of ties between an illegitimate child and her father, for citizenship, because "a mother is far less likely to ignore the child she has carried in her womb than the natural father, who may not even be aware of its existence." The case involves a woman born to a Filipino mother and American father who argues that the policy relies on outdated stereotypes that mothers are closer to their children.

Another case in which the focus will be on key justices involves a sexual harassment dispute in which both the harassers and their victim were men. Eleven years ago, Rehnquist wrote the court's opinion finding for the first time that sexual harassment on the job is a form of sex discrimination covered by a 1964 civil rights law protecting workers from bias. The Rehnquist opinion – a surprise to some at the time because he usually reads rights laws narrowly – said harassment is illegal when it creates an offensive or hostile working environment.

In the new case, a Louisiana man working as a roustabout on an offshore oil rig endured ridicule, touching and threats of rape by a supervisor and two co-workers. But when Joseph Oncale sued under antibias law, an appeals court said same-sex harassment claims are not covered by federal discrimination law. Other lower courts have ruled the opposite, and the high court's decision in this area will clarify the rules.

The heightened public awareness of sexual harassment traces to the 1991 confirmation hearings for Clarence Thomas, when Anita Hill claimed he harassed her when she worked for him at the Department of Education and then at the Equal Employment Opportunity Commission. Those hearings are widely credited with making the issue Topic A and sparking a rapid increase in the number of such lawsuits nationwide.

Hill has repeated her charges in a new book, and the Oncale case could recast attention on Justice Thomas.

Much has changed on the high court since that episode. When the court was beginning its 1992-93 term, three justices had staked out the center – O'Connor, Kennedy and Souter – and the question was whether they would form a power bloc for the decade. Together they made all the difference a few months earlier in a decision reaffirming abortion rights (jointly writing the opinion preserving Roe v. Wade), and they stunted efforts by their brethren to break to the far right or left.

As it turned out, their union was short-lived. As two more liberal jurists came on the bench, (Ginsburg in 1993, Breyer in 1994), Souter moved to the left. O'Connor and Kennedy have gone more solidly conservative in recent years, most notably on the cause of limiting congressional power and enhancing that of the states.

Much depends on the substance of cases each year. But it is also true that, as the public watches for any retirements, just one new justice alters the alliances on the whole court. And Barbara Perry, a Sweet Briar College political science professor, says the outcomes in the most controversial, closely watched cases rest largely on the force of those blocs.

Said Perry, "There's a suspense that the coalitions on the court hang in the balance."

© Copyright 1997 The Washington Post Company

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