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O'Connor's independent voice made her a pivotal figure

WASHINGTON—In her best-selling memoir about growing up on a dusty cattle ranch in Arizona, Sandra Day O'Connor said that her childhood had endowed her with three pivotal values: openness, independence and generosity.

If you had to sum up O'Connor's 24-year tenure on the Supreme Court—first woman justice, key decider of every major social controversy for a quarter century, confounder of both the far right wing and the nation's most liberal elements, the public face of the high court to millions at home and abroad—you wouldn't need to look further than those three words.

O'Connor's hard-scrabble upbringing on the Lazy B ranch is the perfect prism through which to view her work as one of the nation's most influential jurists. Practical and deliberative. Tough but moderate—and willing to change her mind. Hard working and independent, but mindful of the barriers that hinder some Americans' progress.

O'Connor embodies the kind of conservatism championed by Ronald Reagan, the president who nominated her to the court, and Barry Goldwater, the senator from her native Arizona who pioneered a revolution in libertarian thought. But she has shied from the more shrill conservatism of the modern Republican Party, alienating her from some of its current leaders.

"We're very fortunate that she was the first woman to serve on the court because she has been an absolutely independent voice, strong minded and strong willed," said Marci Hamilton, a professor at the Benjamin Cardozo School of Law at Yeshiva University and a clerk for O'Connor during the 1989-90 term. "She has her own internal moral compass, and she's not sitting around waiting to see what everyone else thinks before she makes up her mind. That's how she wound up in the center of the court. We laugh about it because she is now called liberal. But that's not who she is."

Nor was that what Reagan intended O'Connor to be when he nominated her in 1981.

Then, the court was dominated by Democratic appointees, and it tilted toward the expansive federal power and progressive legislation that had flowered in the past three decades.

O'Connor was Reagan's first appointment, fulfilling a promise he'd made during his campaign to put the first woman on the court, and she was expected to provide an important conservative counterbalance.

She did that most notably by joining William Rehnquist and other conservatives in championing a more delicate balance between the reach of the federal government and the rights of the states.

By the early 1990s, with a Republican majority on the court, O'Connor became a crucial voice in landmark decisions that formed the contours of the Rehnquist court's legacy. Federalism, or the idea that many questions should be left to states, is now a fundamental part of the court's legacy. In a 1992 opinion, in a case about Congress requiring states to provide for disposal of radioactive waste, O'Connor made the issue clear.

"The constitutional question is as old as the Constitution: It consists of discerning the proper division of authority between the Federal Government and the States," O'Connor wrote for the majority in New York v. United States.

In another case about whether a Virginia death-row inmate could raise claims—including one of innocence—in federal court after having them dismissed in state court, O'Connor was just as blunt.

"This case is about federalism," she wrote in the opening line of her opinion. "This Court will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."

O'Connor also helped the court pare back the reach of some federal gun laws and congressional legislation aimed at helping battered women. She has been instrumental in Rehnquist-led efforts to limit federal review of search-and-seizure requirements during traffic stops and the ways in which death-row defendants can challenge their sentences.

But as tough as O'Connor can be on federalism questions, she also has shown a penchant for compassion and sympathy on many social issues—and a tendency to soften some positions over time. Her social pragmatism has put her at odds with other justices and conservative politicians who favor a more ideological approach.

Initially a critic of the landmark abortion case Roe v. Wade, for example, O'Connor eventually turned away attempts to overturn it. Instead, she has pushed for—and won—court rulings that call for permissible restrictions that are judged by whether they impose "undue burdens" on women seeking abortions.

In the 1989 case, Webster v. Reproductive Health Systems, O'Connor voted to uphold a Missouri provision that prevented public employees from performing abortions, but she insisted that Roe was law and shouldn't be revisited.

By 1992, her view was carrying the day, in Planned Parenthood v. Casey. The majority opinion in that case made it clear that the right to abortion wouldn't be threatened soon by the court.

"Liberty finds no refuge in a jurisprudence of doubt," O'Connor wrote. "Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, that definition of liberty is still questioned. ... The essential holding of Roe v. Wade should be retained and once again reaffirmed."

Similarly, O'Connor has refined her position on affirmative action.

In a 1989 case, she called a Richmond, Va., effort to boost minority contractors unconstitutional because it didn't meticulously document the past discrimination it was trying to remedy. O'Connor was central in developing the court practice of closely scrutinizing any race preferences, and she has tended to frown on them.

But in the key 2003 case challenging the constitutionality of race preferences in admissions at the University of Michigan Law School, O'Connor cast the deciding vote to retain the practice.

"Attaining a diverse student body is at the heart of the Law School's proper institutional mission, and its `good faith' is `presumed' absent a showing to the contrary," O'Connor wrote in Grutter v. Bollinger.

O'Connor has also confounded conservatives with thoughts about separation of church and state.

In a 1997 case about public schools providing services to poor children in sectarian schools, O'Connor led the charge in overturning a hard separation of church and state, saying an earlier ruling was too strict.

She also voted with the court majority to approve public vouchers for Cleveland students to attend religious schools.

But just last week, O'Connor voted to have two Ten Commandments monuments removed from courthouses in Kentucky and the state capitol grounds in Texas, arguing that both were improper entanglements of government and religion. Though most of the court's conservatives voted to uphold the more benign Texas monument, O'Connor balked, saying such symbolism was more divisive than helpful.

The separation of church and state has "kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat," O'Connor said. "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish."

That kind of opinion inspired this quote about O'Connor, from Kevin J. "Seamus" Hasson, who founded the Becket Fund for Religious Liberty, a Washington-based interest group.

"Her approach to religion law questions made everything a matter of what an imaginary, objective observer would think. But there was no way to know what this imaginary person would think, until Justice O'Connor imagined it," Hasson said. "She was well-intentioned, but she was slowly but surely reinventing monarchy."

Nathaniel Persily, a constitutional expert and professor at the University of Pennsylvania's law school, said O'Connor is an easy target for those who support strict interpretations of the Constitution, but it's her ability to compromise that also gave rise to her prominence.

"Books will be written on her influence on the court and her approach as a justice," he said. "She not only became the decisive voice, but the lighthouse that lawyers look at to see where the court is going."


(c) 2005, Knight Ridder/Tribune Information Services.

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