O'CONNOR, SANDRA DAY (1930–) (Update 2)

Sandra Day O'Connor was appointed to the Supreme Court by President ronald reagan in 1981. The first woman appointed to the Court, O'Connor brought to the Court a background in state law and politics. She had served on the Arizona state legislature, eventually ascending to senate majority leader, and had been a member of the Arizona Court of Appeals.

When O'Connor joined the Court in 1981, she and then-Justice william h. rehnquist were its most conservative members. As the Court's composition has shifted over the intervening years and liberal Justices such as william j. brennan, jr. , and thurgood marshall have been replaced by those with other views, her jurisprudence increasingly has provided a middle ground around which other views can rally.

O'Connor is a strong and highly intelligent individual with a judicial inclination toward pragmatism. She is committed to applying the Constitution's complex requirements faithfully. She eschews the notion that there is a "Grand Unified Theory" that will cover all cases falling under a particular constitutional clause. On her reading, the Constitution is a practical weapon against tyranny, not the locus of a grand metaphysics. It is also a bulwark against the sacrifice of higher ideals to contemporary pressures. In her words, the Constitution "protects us from our own best intentions. It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."

In key constitutional areas—federalism, abortion regulation, affirmative action, and separation of church and state—the Court's doctrine has evolved toward O'Connor's views.

The Court's federalism jurisprudence has developed in fits and starts over the last twenty years. Influenced in no small part by her experiences as a state legislator and judge, O'Connor is a strong advocate of states ' rights and the Constitution's limits on federal powers. The Court's trend toward placing more meaningful limits on Congress's power to regulate the states reflects O'Connor's allegiance to state autonomy in the Constitution's scheme of dual federalism. In national league of cities v. usery (1976), the Court, per Rehnquist, struck down the 1974 law that extended the Fair Labor Standards Act to cover employees of state and local governments, on the ground that it impaired the states' sovereign integrity. That decision was overruled less than a decade later in garcÍav. san antonio metropolitan transit authority (1985), in which O'Connor joined the dissenters who predicted that such an assault on states' rights would not continue to command a majority of the Court. By 1992, O'Connor wrote the majority opinion in new york v. united states (1992), which held that Congress does not have the power to compel states to provide for the disposal of radioactive waste within their borders. Her subsequent votes in the Court's leading federalism holdings—united states v. lÓpez (1995), Printz v. United States (1997), Seminole Tribe v. Florida (1996), Florida v. College Savings Bank (1999), and College Savings Bank v. Florida (1999)—and her joinder in the reasoning of the majority in Boerne (City of) v. Flores (1997) confirm her allegiance to state autonomy.

From her earliest writings in the abortion cases, O'Connor has characterized the balancing test established in roe v. wade (1973), which weighed the states' legitimate interest in the life of a fetus against a pregnant woman's interest in autonomy, as a requirement that the state may regulate abortion but may not place "undue burdens" upon a woman's desire to obtain an abortion. Although various members of the Court have disagreed over whether Roe required strict scrutiny and whether Roe was legitimate, O'Connor has been persistent in her devotion to the undue burden standard as the proper constitutional guide for states attempting to regulate abortion. Consistent with her views on states' rights, the standard creates a great deal of latitude for states to regulate abortion, but does not give states carte blanche. She voted to invalidate a state law forcing minors to notify both parents before obtaining an abortion in hodgson v. minnesota (1990) and to invalidate a state law forcing married women to notify their husbands before obtaining an abortion in planned parenthood v. casey (1992). When the discord at the Court over the validity of Roe reached its peak, O'Connor's undue burden test garnered the support of Justices anthony m. kennedy and david h. souter. O'Connor, Kennedy, and Souter formed a plurality that voted to reaffirm the "core meaning" of Roe (along with liberal Justices Marshall, Brennan, and harry a. blackmun). The plurality adopted O'Connor's "undue burden" approach, asserting that the test adhered to Roe by retaining its "essential holding."

In an area previously fraught with discord, O'Connor has led the Court to a more consistent position on the constitutionality of race-based affirmative action programs. In richmond (city of) v. j. a. croson co. (1989), she wrote the majority opinion holding that affirmative action plans must be subjected to the strictest of scrutiny and that a city could not constitutionally create preferences for minorities in government contracting in the absence of evidence of a history of racial discrimination and proof that the plan was narrowly tailored to remedy the particular history of discrimination. The same reasoning was extended to the federal government in adarand constructors, inc. v. peÑa (1995) and now governs all affirmative action programs in government employment and in government contracting. The Court's establishment of a more certain test in this arena has prompted a serious reexamination of such programs by the federal and state governments.

Since joining the Court, O'Connor has been the crucial swing vote in the Court's cases addressing the separation of church and state. Three years after joining the Court, she began to advocate a modification of the previously applied lemon test. In lemon v. kurtzman (1971), the Court surveyed establishment clause precedent and concluded that a statute violates that clause if it has a primary purpose or effect of advancing or inhibiting religion, or if it causes excessive entanglement between church and state. O'Connor suggested reading this test with an emphasis on "whether the government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement." Endorsement is a constitutional evil, as she explained in lynch v. donnelly (1984), because it "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."

The endorsement test has led O'Connor to draw fine distinctions in the Court's establishment of religion cases. She voted to uphold a city's Christmas display that included a crèche in Lynch but to invalidate a public Christmas display of a crèche alone in county of allegheny v. american civil liberties union (1989). The Court moved toward her endorsement test in lee v. weisman (1992), which held that a public school graduation prayer was unconstitutional, and followed her reasoning on state aid to church organizations in agostini v. felton (1997), which permitted public school teachers to teach secular subjects on parochial school grounds.

O'Connor also has had considerable influence in cases involving sex discrimination, electoral redistricting, habeas corpus, and capital punishment.

O'Connor's contributions to the United States are not limited to her role as Associate Justice. She is also an ardent advocate of democratization in Eastern Europe. She has spent a great deal of time visiting and advising many of the world's emerging democracies, with special emphasis on the importance of the rule of law. O'Connor will have made her mark not simply by being the first woman Justice but rather by dint of her strength, intelligence, and contributions to jurisprudence around the world.

Marci A. Hamilton
(2000)

(see also: Constitutional History, 1980–1989; Constitutional History, 1989–1999; Rehnquist Court; Religious Liberty; Sovereign Immunity; Voting Rights.)

Bibliography

Collection 1996 Tribute to Justice Sandra Day O'Connor. Annual Survey of American Law 1996:i–1vii.

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 55:1–32.

Symposium 1991 The Jurisprudence of Justice Sandra Day O'Connor. Women's Rights Law Reporter 13:53–170.