O'CONNOR, SANDRA DAY (1930–)

Sandra Day O'Connor, the first woman Justice to serve on the Supreme Court, was appointed by President ronald reagan in 1981. She had served previously as the nation's first woman senate majority leader in her home state of Arizona and as a member of the Arizona Court of Appeals. In announcing her nomination the President extolled her as someone who would be a rigid adherent of constitutional principles, taking an exacting view of the separation of powers as a limitation on judicial activism, and respecting the role of federalism in the constitutional scheme. Although there is little doubt that one motivation in appointing O'Connor was to deprive the Democrats of the opportunity of appointing the first woman Justice, the President's expectations have, by and large, not been disappointed.

For O'Connor constitutional jurisprudence means, above all, an adherence to enduring constitutional principles, recognizing that, while the application of these principles may change, the principles themselves are rooted in the constitutional text and in the precepts that animate the Constitution. In her dissent in Akron v. Akron Center for Reproductive Health (1983), O'Connor complained that the majority's decision rested "neither [on] sound constitutional theory nor [on] our need to decide cases based on the application of neutral principles." It is not entirely clear yet whether the Justice mistakenly identifies constitutional principles with "neutral principles." Her opinions generally indicate an awareness that the Constitution is not neutral with respect to its ends and purposes. She has refused to accept the prevailing view that the Constitution is merely a procedural instrument that is informed by no purposes or principles beyond the procedures themselves.

in criminal procedure cases O'Connor has adhered to the principle she enunciated in kolender v. lawson (1983): "Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty. Statutory limitations on those freedoms are examined for substantive authority and content as well as for definiteness or certainty of expression." The Justice has used this rationale to resist unwarranted attempts to expand criminal due process rights beyond those clearly prescribed or fairly implied by the Constitution. For example, in oregon v. elstad (1985) O'Connor refused to extend the fruit of the poisonous tree doctrine either to uncoerced inculpatory statements made after police violation of the miranda rules, orasin new york v. quarles (1984), to nontestimentary evidence produced as a result of a Miranda violation. In the latter case O'Connor concluded that Justice william h. rehnquist's majority opinion had created "a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our fourth amendment jurisprudence." Moreover, dissenting in Taylor v. Alabama (1982), O'Connor would not have allowed an illegal arrest to taint a confession that followed appropriate Miranda warnings; nor in South Dakota v. Neville (1983) would she allow the claim that the refusal to take a blood-alcohol test is protected by the right against self-incrimination.

O'Connor has been no less resolute in her efforts to protect the constitutional role of the states in the federal system. In her dissent in garcia v. san antonio metropolitan transit authority (1985) she remarked that the principle of "state autonomy … requires the Court to enforce affirmative limits on federal regulation of the states." The majority opinion, she continued, created the "real risk that Congress will gradually erase the diffusion of power between state and nation on which the Framers based their faith in the efficiency and vitality of our Republic." O'Connor has also staunchly supported the "exhaustion" doctrine of federal habeas corpus review as a means "to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." The rule that all federal claims must first be exhausted in state court proceedings is, as she wrote in Engle v. Isaac (1982), a recognition that "the State possesses primary authority for defining and enforcing the criminal law." She continued that "[f]ederal intrusions into State criminal trials frustrate both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." And in hawaii housing authority v. midkiff (1984) O'Connor made clear that the Court would accord the utmost deference to state legislatures in matters of "social legislation."

O'Connor was less deferential, however, in the instance where a state maintained a women-only nursing school. Writing for the majority in mississippi university for women v. hogan (1982), O'Connor stated that in "limited circumstances a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened." Here, the sex discrimination actually harmed the intended beneficiaries by perpetuating "stereotyped" and "archaic" notions about the role of women in society.

O'Connor has urged the Court to reexamine some important issues connected with the establishment of religion clause of the first amendment. Concurring in wallace v. jaffree (1985), O'Connor agreed that an Alabama law providing for a moment of silence was unconstitutional because it sought to sanction and promote prayer in public schools. She dissented, however, from the Court's decision in aguilar v. felton (1985) striking down the use of federal funds to provide remedial education by public school teachers for parochial school students. While agreeing in lynch v. donnelly (1983) that every governmental policy touching upon religion must have a secular purpose, O'Connor suggested that the entanglement test propounded in lemon v. kurtzman (1971) should be reexamined.

In the area of equal protection rights, O'Connor has taken the firm stance that rights belong to individuals. In Ford Motor Company v. Equal Employment Opportunity Commission (1982), and in her concurring opinion in fire-fighters local #1784 v. stotts (1984), O'Connor argued that remedies must be limited to those who can demonstrate actual injury and must be fashioned in a way that protects the settled expectations of innocent parties. She thus adheres to the original intention of the framers of the fourteenth amendment and of the civil rights act of 1964, reaffirming the principle that lies at the heart of constitutional jurisprudence—that rights belong to individuals and not to the racial or gender group of which they are members. Employing narrowly construed and analytical opinions, O'Connor has begun to build a solid base for the Court's return to a jurisprudence that looks to the articulation of the Constitution's enduring principles.

Edward J. Erler
(1986)

Bibliography

Cordray, Richard A. and Vradlis, James T. 1985 The Emerging Jurisprudence of Justice O'Connor. University of Chicago Law Review 52:389–459.

O'C onnor, Sandra Day 1981 Trends in the Relationships between the Federal and State Courts from the Perspective of a State Court Judge. William and Mary Law Review 22:801–815.