The Power of One
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JIM LEHRER: Some perspective on Justice O’Connor’s role on the Supreme Court from Douglas Kmiec of Pepperdine University Law School; Nancy Maveety, professor of political science at Tulane University, author of “Sandra Day O’Connor: Strategist on the Supreme Court”; Kathleen Sullivan, dean of Stanford Law School; and John Yoo of Boalt Hall School of Law at the University of California at Berkeley. Doug Kmiec, so is it correct to label this current court the O’Connor court?
DOUG KMIEC: I think it is fair to do so. I mean, she — in the last term there were 13 five-four decisions, and she figured in the majority of each of them. Justice O’Connor has a very deliberate judicial method. She takes each case on its own facts; she prides herself on her legal reasoning. And unlike perhaps other members of the court who are more likely to search for broad stroked theory or to see the law as an instrument of social policy, Justice O’Connor’s vote is always up for grabs because she takes each case on its own bottom, and that makes her opinions always interesting and frequently decisive.
JIM LEHRER: Do you agree, Kathleen Sullivan that essentially she’s calling the shots right now?
KATHLEEN SULLIVAN: Yes. She is the most powerful person on the court in some respects, and that’s what makes the description of her as a judicial conservative somewhat misleading. If you think about her contribution to the history of the court, Jim, it’s striking to realize that since President Reagan appointed her to the court, she has served to moderate what might have otherwise been a very sharp turn to the right. After all, President Reagan and the first President Bush had five appointments to the court, that’s a majority of the nine.
But on areas like affirmative action, she has ensured that race may be taken into account at the University of Michigan Law School and admissions or in the way that electoral districts are drawn as long as it’s not taken into account too mechanically.
She’s also been a moderate on personal liberties, voting with the majority to uphold women’s right to choose in the area of abortion and also more recently the right to sex between two men who are consenting adults in the privacy of their home last term. She’s not adverse to fashioning personal liberties out of the constitution. Finally on church state, anyone might have thought that President Reagan’s appointee to the court would strike down school prayer — I’m sorry would uphold school prayer, but in fact she’s voted with the court to say that the establishment clause bars such endorsement of religion in the public schools.
So she’s played, as Doug Kmiec says, often a decisive role, but often a decisive role for the more moderate result.
JIM LEHRER: John Yoo, you’re a conservative, do you see it the same way?
JOHN YOO: I see the facts the same way. I probably would not interpret them the same way. I think Justice O’Connor is the most powerful woman probably in American history.
JIM LEHRER: Excuse me. The most powerful woman in American history?
JOHN YOO: I think so, if you think about she decides what is our country can do on affirmative action, abortion, campaign financing, you run down the list of issues, she’s the one who decides what Americans can do on all these issues. I think that makes her the most powerful woman in American history.
The question to ask is should she be the most powerful woman in American history? Should we have an unelected person making these final decisions for American society on a lot of these different questions? And it’s true she is a moderate in the sense that she likes to be in the middle. But the problem with that is that makes her very politically powerful. The problem is that she doesn’t have any real judicial ideology. She doesn’t really have a consistent theory that she brings to the law, she just likes to, I think, be in the middle, to be in the center of a court that’s fairly polarized, that makes her the center of attention, people craft arguments at the Supreme Court to appeal just to her. But that isn’t really law, is it, that’s more politics. It deprives the court of speaking with a consistent, coherent judicial ideology.
JIM LEHRER: Nancy Maveety, do you see it the same way, that she’s more of a political person than she is a legal person in what she’s doing?
NANCY MAVEETY: Well, I think as a political scientist I probably represent the view that the justices are political actors and all this has been. I wouldn’t disagree with anything that has been said by the previous commentators about Justice O’Connor. I think she is all as what has been described. I suppose I would add a couple of comments as to whether she is the most powerful woman of all time in American history, am I rephrasing that properly?
JIM LEHRER: You’re fine.
NANCY MAVEETY: I suppose what I would add there is that though her decisions are fundamental importance in setting public policy, we have to remember that the kind of approach she uses, the kind of fact based balancing she uses in much of her decision making allows lower court judges a lot of room for interpretation, and of course that’s the criticism that she doesn’t provide crystal clear guidance or theoretically well grounded or ideological identifiable ways to proceed. But it does permit lower court judges to interpret facts as they see them.
JIM LEHRER: Doug Kmiec, where do you come down on particularly John Yoo’s point and also what Nanny Maveety just picked up on – John, you said this is the project way to function, whatever you think about the end result, the Justices of the Supreme Court should not go about her business the way Justice O’Connor does?
DOUG KMIEC: Well, I think many people would disagree.
JIM LEHRER: Do you, do you disagree?
DOUG KMIEC: I disagree in part. I’m going to be, file a partial dissent because I think Justice O’Connor for many of us in the legal academy represents the ideal of a judge — somebody who doesn’t have a predetermined outcome but who in fact does strive to craft a result that is just in the particular case, and is understandable both in terms of legal thought as well as understandable to the larger polity.
Let me give a few examples which I think also separate me from, a little bit from the way Dean Sullivan characterized things. She has advanced a very strong appreciation for what I would call constitutional architecture, she’s very much supported the Chief Justice on matters of federalism and on states’ rights. She’s also, I think, been more accommodating of religious belief in the sense that she has fashioned a jurisprudence around the idea of whether or not government in a particular case is endorsing or not endorsing religious belief. So it’s not a question of whether she’s an improper decisionmaker, it’s a question of her judicial methodology. And I think her methodology is largely to defer to the states, to observe the separation of powers, and insofar as observing those two precepts, she promotes democratic choice.
JIM LEHRER: Kathleen Sullivan, you’re a big fan of Justice O’Connor. How do you support to John Yoo’s point that she enjoys being in the middle judicially but she also enjoys being there because it draws attention and also that’s where the power lies?
KATHLEEN SULLIVAN: Well, I couldn’t disagree more with John that that makes her a political animal. Let’s remember she is the only person on the Supreme Court who was elected to and served in legislative office, rising to the Senate majority leader in Arizona before she went on the bench. So she is the one person on that court who really does know politics. But I think her method, which I think Doug Kmiec has correctly described as taking the cases case by case on their fact basis, one case at a time, splitting the difference, I think that that approach is designed not to do politics, but rather to save the legitimacy of the court, to make sure that it isn’t captured by one or the other judicial ideology.
Of all the justices, she travels around the world a great deal and she sees how the U.S. Supreme Court is regarded by judges in other nations, and I think one of the things she’s proudest of is that she sits on a court which matters in American society, in which the court’s decrees are obeyed, unlike in a lot of other societies around the world and where the court just to march in lockstep with one ideological poll or the other, it couldn’t serve that function in American society on issues in which American society is deeply divided.
Also I think she’s influenced by many factors in her past, she’s one of the only three westerners on the court, and having grown up in the West she often sees states’ rights issues quite differently from the Justices who grew up in the East or the Midwest. To people in the East often the states were tyrants and the federal government was a savior from the racist forces of Jim Crow or other violations of personal liberty. To people who grew up in the West, the states were often the governments that enfranchised women first, that did progressive things earlier on for the environment, and sometimes it was the federal government that was seen as the monopolist who kept individuals from razing or mining their land.
So she sees things in a way that are not political as John Yoo suggests or in any way selfish. I think she has gone about her job with great intelligence, extreme savvy and canniness, and in a way her contribution is through her moderation and her case by case approach is to preserve the legitimacy and therefore the power of the court in America.
JIM LEHRER: John Yoo, you’re on.
JOHN YOO: I’m not saying she’s acting out of selfish motives, but I think the way she decides cases is to place herself in the middle, does not attach any ideology but it has the function of making the court extremely powerful. The reason why abortion was not a settled issue for many years that you have to keep going back to the court over and over again, because of the way she decides cases. It keeps the court at a political center.
So let me ask this, I think, okay, so maybe Justice O’Connor is the most powerful person; maybe she plays this political role of being in the middle of the court, but do you think twenty or thirty years from now people will be studying her opinions the way we study opinions of a Justice Black or a Justice Story or even Justice Brennan — you know, associate justices who were great justices because they had a defined vision of what the law was, and the role of the Supreme Court. And we’re not so conscious of just trying to be in the middle all the time.
JIM LEHRER: So that’s what you think Justice O’Connor should be doing more of, in other words follow an ideology or follow a philosophy and be consistent with that and not switch back and forth, one time be with the conservatives and one time be with the liberals, is that what you’re saying, John Yoo?
JOHN YOO: Yes, because if you’re just switching back and forth all the time, if you’re in the middle all the time, are you really being a judge – I mean, isn’t that what we elect people to be legislators, is to cut compromises and to split the differences, not judges?
JIM LEHRER: You were up there at the court, John, as, John Yoo, as a clerk for Justice Thomas. How did you — what did you observe in the way she went about her business that confirms your observation?
JOHN YOO: Oh, you are trying to get me in a lot of trouble, because we’re not allowed to talk about those things. But I think it’s fair to say that she is, as people have described her, I think she’s a very moderate, she takes the cases on their own facts; she’s not really committed to any ideology. I think it’s obvious to everyone that she is the fifth vote and her vote matters, and her vote is in play, and you can see other justices, just like other counsels appeal to her, craft arguments to win her vote and they’re really based on sort of common sense reasonable kind of arguments, not arguments based on any kind of certain principles, which they suspect she has been on and agree with for many years.
JIM LEHRER: Nancy Maveety, in your research, did you confirm what John Yoo is saying, that lawyers appearing before the Supreme Court or people writing briefs or people having any business before the Supreme Court really try to appeal to her knowing that she is not guided by a philosophy, she sits down with a so-called empty plate each time and is willing to take the facts in, is that something that you can confirm as well?
NANCY MAVEETY: It’s certainly fair to say that litigants and their attorneys craft arguments for Justice O’Connor, but I don’t know if I would phrase it as she starts afresh with every case, and looks at the facts anew. Rather, I think what those litigants and attorneys are doing is presenting their case in such a way that it is framed according to the balancing test that Justice O’Connor has crafted that is dominating the legal area that they are involved in — for example, crafting the facts of a situation to allow those facts to be framed by her unduly burdensome approach to judging abortion rights versus state prerogatives.
So I would differ somewhat with the characterization of her as simply blowing in the wind and simply desiring to be on the winning side for no other reason than being on the winning side. I think I would also add that, you know, it’s hard to know who will be reading in 20 years what Justices will matter. But one could argue that O’Connor is presenting an approach that is not unlike that of John Marshall II. And it’s not the most sound bite-oriented jurisprudence, but that’s not to say it won’t be influential and might have an effect on the law in 20 years.
JIM LEHRER: Doug Kmiec, how do you read the precedent for the power of Sandra Day O’Connor?
DOUG KMIEC: Well, there’s no question but that she’s changed the court and she’s been largely responsible for many changes, and that’s why I too would qualify your statement, Jim, about starting with an empty plate.
JIM LEHRER: That’s my thought…I miss, I was trying to speak in shorthand and I misspoke. Go ahead.
DOUG KMIEC: No, but it brings out something important about her jurisprudence and that is that she frequently does signal in earlier concurring opinions, sometimes in dissenting opinions, although given her power, she rarely dissents, how she’s thinking. And so she lays out, even though she’s not looking for a one size fits all philosophy, she does lay out her thinking, and this does allow litigants to structure their arguments and it does, I think, allow for reasonable jurisprudence.
We shouldn’t also overlook the fact that her appointment was an historic appointment in the sense she was the first woman on the Court, and in that sense also told us something very important: that women are entirely capable of serving in these roles and that they don’t need to be discriminated against, nor discriminated in favor. She has a wonderful expression that says a wise old man and a wise old woman decide pretty much the same way, they just both need wisdom. And I think the word “wisdom” is associated with Justice O’Connor.
JIM LEHRER: And the words I have to say now are thank you all four very much.