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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

O, O’Connor, Sandra Day

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 23 May 2019

O’Connor, Sandra Day

(b. El Paso, Tex., 26 Mar. 1930), associate justice, 1981–. Nominated by President Ronald Reagan and unanimously approved by the Senate, Sandra Day O’Connor joined the Court on 25 September 1981 as its 102nd justice and first female appointee.

Sandra Day O’Connor

The oldest of three children, O’Connor grew up on the Lazy B, the family’s 160,000 acre ranch in southern Arizona and New Mexico. Her father, Harry A. Day, was an excellent student and California high school swimming champion whose plan to attend college yielded (p. 702) first to military service in World War I and then to management of the Lazy B ranch when his father became ill. Her mother, Ada Mae Wilkey Day, attended the University of Arizona and was an intelligent, caring woman devoted to the family’s well-being. The challenge of ranch life against the stark beauty of the southwestern desert instilled in the future justice her lifelong values of determination, honesty, hard work, and service to others.

After attending boarding school in El Paso, O’Connor entered Stanford at the age of sixteen. At the end of her junior year, she was accepted for early admission to Stanford Law School, where she graduated in 1952, third in her class behind the valedictorian, William H. *Rehnquist. She met her husband, John O’Connor, while they were both law students at Stanford. They have three sons.

Like many other justices, O’Connor’s path to the Court encompassed both the practice of law and politics. While her husband served in West Germany in the Judge Advocate General’s Corps, she worked as a civilian quartermaster corps staff attorney. Returning to Arizona, O’Connor was an assistant attorney general from 1965 to 1969, when the governor appointed her to fill a vacancy in the Arizona Senate. Within three years she was the first woman in the United States to be a state senate majority leader. In 1974 she moved from state politics to the bench with her election to the Maricopa County Superior Court, where she was seen as a “rising star.” Her judicial demeanor, legal knowledge, and popularity led to an appointment to the Arizona Court of Appeals in 1979.

Active in Republican Party politics, O’Connor supported Ronald Reagan in his 1976 attempt to gain the presidential nomination over Gerald Ford. In 1981, at a time when the role of women in American society was growing, President Reagan‘s appointment of O’Connor fulfilled a campaign promise to appoint a woman to the Court. That opportunity came with the resignation of Potter *Stewart.

From the outset, O’Connor was committed to conservative values: adherence to the “rule of law” to ensure that social change is deliberate and incremental; the exercise of judicial restraint to give proper heed to the legislative process; a theory of federalism that recognizes the primacy of states’ rights; and the safeguarding of certain personal freedoms that must remain beyond the reach of government. In general, her votes on cases have been closely aligned with Chief Justice Rehnquist. In the 2003 term, they agreed over 80 percent of the time. Nevertheless, O’Connor’s commitment to the constitutional mandate of “case and controversy” has been such that she is not identified with a particular ideology as much as she appears committed to a careful analysis of the facts and issues presented. Perhaps her view of the law is summarized in her comment in *Rosenberger v. Rector and Visitors of the University of Virginia (1995): “When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified.” With this reputation for case-by-case decision making, she is perceived as a possible “swing vote” in high profile cases. In *McConnell v. Federal Election Commission (2003), for example, O’Connor parted ways with Rehnquist and Scalia and their free speech arguments, agreeing instead with a five-justice majority that regulation of campaign activity, not speech, was the core issue and that Congress’s political expertise in the federal election process was entitled to deference by the Court.

O’Connor has shaped constitutional law in several areas including *affirmative action, voting rights, *church-and-state issues, takings under the *Fifth Amendment, states’ rights, and *abortion. In one sense, her tenure on the bench and the sheer volume of her published opinions might suggest an “evolving” or “dynamic” jurisprudence on her part. On the other hand, there is much to support the notion that O’Connor has not changed her thinking as much as she has employed collegiality and the use of concurring opinions to bring the other justices over to her point of view.

In affirmative action cases, O’Connor’s judicial philosophy has accommodated both text and social context. In Wygant v. Jackson Board of Education (1986), nonminority teachers challenged a policy that used race as a basis in determining layoffs. Because the statute overlooked the more limited use of hiring controls to address discrimination, a plurality of the Court held the policy violated the *Equal Protection Clause. In her concurring opinion, O’Connor highlighted the majority’s apparent consensus that race-based classifications were constitutionally suspect regardless of their objective and reiterated that the proper inquiry was whether the challenged statute was narrowly drawn and survived strict scrutiny. This concurrence in Wygant was the basis of her majority opinions in subsequent cases that have substantially rewritten the law of affirmative action. In *Richmond v. J. A. Croson Co. (1989), she applied Wygant to strike down an ordinance that required 30 percent of city contracting work go to minority-owned businesses where there was no factual basis to connect the ordinance’s remedial goals to local discrimination. In *Adarand Constructors, Inc. v. Peña (1995), an O’Connor opinion placed Fifth Amendment and Fourteenth Amendment claims on the same footing and required both federal and state contract set-aside (p. 703) programs to undergo “strict scrutiny” analysis for equal protection purposes.

Two higher education cases, both 5-to-4 decisions, reconfirmed the role played by cultural diversity with regard to remedial affirmative action programs. In *Grutter v. Bollinger (2003), O’Connor authored the majority opinion that found a compelling state interest in promoting diversity and upheld the University of Michigan Law School’s “narrowly tailored” admission policy that allowed race-based consideration of an applicant’s credentials. In *Gratz v. Bollinger (2003), decided the same day, she joined a different majority to hold that, in the context of undergraduate admissions, an automatic award of admission points to minority applicants did not pass muster under the Equal Protection Clause.

In voting-rights cases, viewpoints from her early years on the bench have ostensibly resurfaced and taken hold. In *Davis v. Bandemer (1986), O’Connor dissented from the majority’s holding that political gerrymandering claims were justiciable under the Equal Protection Clause. For her, the judiciary, as a coequal branch of government, was neither constitutionally authorized nor practically equipped to oversee an inherently political and policy-laden process. In Vieth v. Jubelirer (2004), the Court again journeyed into the political thicket of legislative apportionment, but this time declined to find that partisan gerrymandering claims presented justiciable equal protection violations. O’Connor’s abstentionist approach in Bandemer garnered three additional votes and set the framework for Anthony Kennedy’s due process–based concurrence. In contrast, in *Shaw v. Reno (1993), O’Connor still recognized a distinction in voting-rights cases where the claim involved racial gerrymandering. Writing for a five-justice majority, she opined that legislative-apportionment schemes designed to protect voting rights against race-based abuse might be valid if they satisfied strict scrutiny and narrowly drawn standards, but still cautioned against oddly shaped districts and the greater social harm that might arise from the very process of racial classifications.

In an *Establishment Clause case, *Lynch v. Donnelly (1984), decided during her third year on the Court, she offered “endorsement” analysis as a reformulation of the three-prong test in *Lemon v. Kurtzman (1971). This endorsement analysis was used in County of *Allegheny v. ACLU (1989) and it informed the Court’s later approval of elementary school student voucher programs in *Zelman v. Simmons-Harris (2002).

The *Takings Clause received fact-intensive and insightful analysis by O’Connor in *Eastern Enterprises v. Apfel (1998). Writing for the majority, she accepted the argument that an improper taking arose from Congress’s attempt to fund lifetime health benefits under the Coal Industry Retiree Health Benefit Act of 1992 because Eastern had left the coal industry in 1965 and could not have foreseen future liability by subsequently enacted legislation. In reaching this conclusion, her examination of the Takings Clause correlated the issues of retroactivity, investment-return expectations, disproportionate impact, and the notion of economic fairness set forth in Armstrong v. United States (1960). In contrast to Eastern, she ruled in favor of the legislature’s eminent domain authority in *Hawaii Housing Authority v. Midkiff (1984), where the issue was the meaning of the Fifth Amendment’s “public use” requirement. In the mid-1960s, the Hawaii Legislature discovered that almost 50 percent of its island real estate was in the hands of seventy-two private landowners. To remedy the stifling economic effects of this land oligarchy, the state devised a plan by which residential tracts were condemned and then resold to tenant-homeowners. For O’Connor, the legislature, not the judiciary, was best equipped to determine land-use policy and its determinations were entitled to validation. The “public-use” requirement could be satisfied even though private ownership would result since the overall purpose of the taking was to promote the general welfare.

In a states’ rights case, New York v. United States (1992), her methodical analysis of the *Tenth Amendment invalidated federal legislation that would have compelled New York to take possession of low-level radioactive wastes. In *Seminole Tribe of Florida v. Florida (1996), she sided with a five-justice majority in sustaining Florida’s *Eleventh Amendment claim that Congress could not use the Indian Commerce Clause to abrogate state immunity from suit.

In the area of abortion rights, she was the focal point of much public debate when the basic holding of *Roe v. Wade (1973) was tested in *Planned Parenthood v. Casey (1992). Again in a 5-to-4 decision, O’Connor departed from her conservative stripes and applied the “undue burden” standard she first offered in her dissent in *Akron v. Akron Center for Reproductive Health, Inc. (1983). Conceding the government some regulatory control over the abortion decision with regard to informed consent and parental approval provisions, her opinion for a splintered majority in Casey nevertheless upheld Roe’s recognition of a “liberty” interest in a woman’s right to choose.

In terms of percentages, O’Connor files the fewest dissents compared to the other justices. That she endeavors to work to consensus perhaps underscores the significance of her disagreements with the majority. In *Blakely v. Washington (2004), the Court struck down a (p. 704) state sentence enhancement scheme that allowed the judge, not the jury, to determine facts that increased the penalty above the statutory limit. Consistent with her dissent in Apprendi v. New Jersey (2000), O’Connor decried the majority’s misunderstanding of the proper role of the judge and jury and chided its subversion of much-needed sentencing guidelines that mediate an overloaded criminal justice system.

As American society continues to change and pose even more difficult legal questions with regard to the role of government and the rights of the individual, O’Connor’s contribution to the Court will no doubt receive considerable attention and reexamination. Legal scholars may well debate whether she is unique in how she unpredictably combines both centrist and independent viewpoints in her opinions. Her views on law and society will set the contours of future pronouncements of the Court and she will continue to gain in stature as a great jurist.

Henry J. Abraham, Justices, Presidents, and Senators (1999). Nancy Maveety, Justice Sandra Day O’Connor: Strategist on the Supreme Court (1996). Sandra Day O’Connor and H. Alan Day, Lazy B (2002). Sandra Day O’Connor, The Majesty of the Law (2003). “Symposium: Justice O’Connor: Twenty Years of Shaping Constitutional Law,” McGeorge Law Review 32 (2001): 821–956.

George T. Anagnost