O'CONNOR, SANDRA DAY (1930–) (Update 1)

Sandra Day O'Connor was born in Arizona in 1930. After leaving high school at the age of sixteen, she completed both her undergraduate and law degrees at Stanford University in five years. She spent the next decade as a county attorney and in private practice in Arizona and elsewhere, and she became an Arizona assistant attorney general in 1965. She served in the Arizona state senate from 1969 until 1974, when she moved into the state judiciary—first as a trial judge and later on the state's intermediate court of appeals. President ronald reagan nominated her as the first female Justice of the Supreme Court of the United States in 1981.

O'Connor took the oath of office on September 25, 1981, as the first Supreme Court appointee of the most conservative President since calvin coolidge. Not surprisingly, she immediately became part of the conservative wing of the Court, voting with Justice william h. rehn-quist more than ninety percent of the time by 1984. She has continued to be a reliable conservative vote in criminal procedure and federalism cases. After 1984, however, she began striking out on her own in several areas. She became considerably less predictable in cases involving substantive due process, discrimination, and complex jurisdictional or procedural questions.

By 1989 O'Connor had become a pivotal center vote on the Court. Although this change resulted in part from the appointment of two more conservative Justices, it was also the result of the changes in O'Connor's own views: by 1987 she was voting with Rehnquist only seventy-eight percent of the time. Moreover, during this period O'Connor often wrote separate concurrences and dissents, approaching cases from independent points of view; and by the end of the 1988 term, her originally solo viewpoints commanded majorities in several doctrinal areas. Three topics illustrate both her influence and her central position on the Court: the establishment clause of the first amendment, affirmative action, and capital punishment.

At the time O'Connor joined the Court, establishment clause challenges were virtually always governed by the test of lemon v. kurtzman (1971): a statute violates the establishment clause if it has a primary purpose or a primary effect of advancing or inhibiting religion, or if it causes excessive government entanglement with religion. Beginning with lynch v. donnelly (1984), O'Connor proposed a "refinement" of the lemon test emphasizing the questions "whether the government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement." Unlike the standard view of the Lemon test, which centers on the practical effect of governmental action, O'Connor's test focuses on the communicative or symbolic aspects of that action. Thus, O'Connor would find a constitutional violation when "[e]ndorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

Between 1984 and 1989, O'Connor's application of this principle made her the swing vote in many establishment-clause cases. She provided the fifth vote to uphold a public Christmas display including a crèche in Lynch v. Donnelly and to uphold federal funding of religious family-planning organizations in bowen v. kendrick (1988). She also provided the fifth vote to invalidate a state-mandated moment of silence for meditation or prayer at the beginning of the public school day in wallace v. jaffree (1985) and to invalidate a public Christmas display of a crèche alone in county of allegheny v. aclu (1989). In County of Allegheny, moreover, she appeared to have converted a majority of the Court to her test, at least where the display of religious symbols is at issue.

O'Connor also fashioned what has become the majority test for constitutional challenges to affirmative action programs. For over a decade, the Court was unable to produce a majority opinion in any constitutional case involving affirmative action. Badly fragmented, the Court could not agree on either the level of scrutiny to be applied to such challenges or the factual prerequisites that might make an affirmative action program valid. Beginning with wygant v. jackson board of education (1986), O'Connor wrote several separate opinions answering both questions with great specificity: affirmative action programs should be tested by strict scrutiny, and such scrutiny typically requires that there be a remedial need for the program, shown by some evidence—not necessarily contemporaneous—of prior government discrimination (remedying past societal discrimination is an insufficient governmental interest). In 1989, in richmond (city of) v. j. a. croson co. (1989), O'Connor obtained majority support for her position.

O'Connor has also had a significant influence in cases dealing with the death penalty for juveniles. Although she has not generally been the swing vote in ordinary capital cases, her vote has been crucial in deciding whether the state may execute persons who committed crimes when they were under the age of majority. In thompson v. oklahoma (1988), she voted with the four liberal Justices to overturn a death sentence imposed on a girl who had committed murder at the age of fifteen. O'Connor did not join Justice john paul stevens's plurality opinion, however, because it categorically denied the constitutionality of executing anyone who was under sixteen when the crime was committed. Instead, O'Connor concluded that the legislature, in failing to set any minimum age limit, did not give proper consideration to a question on which no national consensus existed and, thus, that the penalty was cruel and unusual punishment.

This distinctive approach allowed her to vote the very next year in stanford v. kentucky (1989) to uphold death sentences imposed on two juveniles who had committed crimes at the ages of sixteen and seventeen. Again she was the fifth vote, this time combining with the conservative wing of the Court, and again she wrote a separate concurrence basing her decision on a "sufficiently clear … national consensus." In a case decided the same day as Stanford,penry v. lynaugh (1989), O'Connor provided the pivotal vote (and wrote the majority opinion) for two separate majorities: one concluding that the Eighth Amendment generally permits the execution of mentally retarded adults and the other reversing the death sentence of the particularly mentally retarded defendant on the ground that the jury instructions deprived the jury of any meaningful opportunity to take the defendant's handicap into account as a mitigating factor.

Finally, O'Connor may prove to be the crucial vote on abortion. From 1981 to 1989, O'Connor consistently voted to uphold all antiabortion laws; and in Akron v. Akron Center for Reproductive Health (1983), she even wrote that roe v. wade (1973) was "on a collision course with itself." In webster v. reproductive health services (1989), however, O'Connor declined to join with the four other Justices wishing to modify Roe. Instead, she wrote a separate concurrence upholding the challenged statute under Roe itself and explicitly refusing to reach the question of Roe's continued validity. Indeed, her earlier opinions had suggested that the Court abandon the trimester approach to abortion and instead ask whether a challenged statute "unduly burdens" a woman's right to an abortion. In Webster, Rehnquist's plurality opinion adopted this approach almost verbatim, but O'Connor nevertheless declined to join his opinion.

Two additional trends are evident in O'Connor's opinions. First, she frequently writes separately in order to "clarify" the majority's opinion. Her clarifying concurrences are often attempts to point out the limits of the Court's decision or to minimize the distance between the majority and dissent. In Wygant, for example, her concurrence stressed that there was little difference in application between a "compelling" governmental interest and an "important" one and that both majority and dissenting opinions agreed that remedying past discrimination constitutes such an interest. In other cases she has made a great effort to specify what issues the Court has not decided.

The second common thread during O'Connor's tenure on the Court to date is her tendency to demand fact-specific decision making in a wide variety of contexts. For example, in Lanier v. South Carolina (1985), she wrote a separate concurrence to a per curiam opinion on the voluntariness of a confession, stressing that on remand the Court should look at the particular circumstances of the confession. In two cases involving the appropriate state statute of limitations to be borrowed in section 1983 actions, she dissented from nearly unanimous Court decisions imposing a single standard, preferring instead to examine the circumstances of each section 1983 suit (Wilson v. Garcia and Goodman v. Lukens Steel Co.). In a series of habeas corpus cases, she wrote majority opinions fashioning a test whereby defendants who could produce evidence of "actual innocence" might avoid the newly strengthened strictures of the "cause and prejudice" test (Smith v. Murray and Murray v. Carrier). In coy v. iowa (1988), she concurred in a decision invalidating on confrontation clause grounds a state statute permitting courts to place a screen between the accused and the accuser in child sexual abuse cases, but refused to join the majortity's conclusion that such screens always violate the right to confrontation. In allen v. wright (1984), she demanded greater specificity by parents seeking standing to challenge Internal Revenue Service regulations that they alleged were inadequate to prevent discriminatory private schools from obtaining and keeping charitable exemption status. Finally, her position on affirmative action, noted above, makes clear the need for some factual predicate for the adoption of any affirmative-action plan.

When O'Connor joined the Court in 1981, it was expected that her votes would reflect three influences: her conservatism would align her with the right wing of the Court, her state legislative background would give her a strong states ' rights tilt, and her gender would make her more receptive to claims of sex discrimination. Only the last of these expectations has proved both accurate and significant. Although as already indicated, she has voted conservatively on some issues, in other cases she has followed an independent path. Her deference to state legislatures is reasonably consistent, but she has virtually always been outvoted, as in garcia v. san antonio metropolitan transit authorithy (1985) and South Dakota v. Dole (1987).

O'Connor has, however, been a consistent supporter of gender equality. During her tenure on the Court, she has joined the majority—and sometimes provided a crucial vote—in making partnership decisions subject to Title VII (Hishon v. King Spalding), declaring sexual harassment as actionable under the same statute (meritor savings bank v. vinson), rejecting a preemption challenge to a state law requiring employers to give pregnancy leave to employees who want one (California Federal Savings Loan v. Guerra), upholding discrimination claims based on sexual stereotyping (Price Waterhouse v. Hopkins), invalidating an all-female state nursing school (mississippi university for women v. hogan), and upholding an affirmative action program for women (johnson v. transportation agency). Only in the area of abortion has her support of women's rights been less consistent.

Thus, after eight years on the Court, O'Connor has proved herself an independent and sometimes unpredictable thinker. It is clear, however, that the first female Supreme Court Justice has already left her mark on the Court and will continue to do so.

Suzanne Sherry
(1992)

Bibliography

Cordray, Richard M. and Vradelis, James I. 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 Relationship Between the Federal and State Courts from the Perspective of a State Court Judge. William and Mary Law Review 22:801–815.

Shea, Barbara C. S. 1986 Sandra Day O'Connor—Woman, Lawyer, Justice: Her First Four Terms on the Supreme Court. University of Missouri, Kansas City Law Review 55:1–32.

Sherry, Suzanna 1986 Civic Virtue and the Feminine Voice in Constitutional Adjudication. Virginia Law Review 72:543–616.