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Pivotal Justice

July 1, 2005 at 12:00 AM EST
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KWAME HOLMAN: The first woman on the Supreme Court was appointed by President Ronald Reagan, a conservative.

And at her confirmation hearings in 1981, Sandra Day O’Connor told the Senate Judiciary Committee she was a judicial conservative. But over the course of her 24-year tenure, O’Connor often was at the center, and frequently provided the swing vote, on 5-4 decisions.

A fourth-generation Arizonan, she had practiced law in both government positions and at her own private law firm, served in the state Senate, and was a judge in both a county and a state appellate court before being named to the Supreme Court. She and Chief Justice William Rehnquist already knew each other. They’d been law school classmates at Stanford, both graduating in 1952. About halfway through her tenure, O’Connor was joined on the bench by another woman. Ruth Bader Ginsburg was named to the Court by President Bill Clinton in 1993.

Two years ago, when O’Connor’s book “The Majesty of the Law” was published, she sat down with NewsHour regular Jan Crawford Greenburg. They talked about her historic appointment to the High Court.

SANDRA DAY O’CONNOR: I think it was well-received by the country. It had been 191 years since we first had a Supreme Court, and maybe it was time that one of its members was of the female sex, because we have more and more lawyers in the country today who are women. When I went to law school, about 1 percent of all law students were women, and last year, over 50 percent were. And that’s just been a…just an incredible change. And I think that people in the country were probably overall very pleased to a see a woman put on the Court.

JAN CRAWFORD GREENBURG: Would you like to see a woman take your place, or do you think it will be nice to see another woman?

SANDRA DAY O’CONNOR: I hope there will always be women, plural, on this Court.

JAN CRAWFORD GREENBURG: Well, in the book, you talk about several justices that you appreciate or admire. What do you think people will write about you? What will those chapters look like? What will your legacy be?

SANDRA DAY O’CONNOR: I don’t know. I’ll leave that to the future. I was asked in my Senate confirmation hearing about how I’d like to be remembered. I called it the tombstone question. And I said, “I hope the tombstone might read “Here lies a good judge.”

JIM LEHRER: And to Margaret Warner.

MARGARET WARNER: And with me is Jan Crawford Greenburg of the Chicago Tribune. Jan’s been reporting on the Supreme Court for more than a decade, as Justice O’Connor cast, some would say, more than her fair share of deciding votes.

Welcome back, Jan. We’ve already described Justice O’Connor in the program tonight as a frequent swing vote. Is that — you watched it up close. Is that a fair characterization of her impact on this Court?

JAN CRAWFORD GREENBURG: Well, she frequently cast certainly the deciding vote in any number of cases that are critical to American life, whether it was race or religion or abortion.

But in the conversations that I’ve had with Justice O’Connor over the years, she always intensely disliked that term. She never liked to be called a swing vote or a swing justice. She saw herself as one of nine. And her vote was no more important than any of the other Justices on the Court.

But I think where that term comes from and why we still call her a swing vote, even though she may not like the term, is that she took each case on its own. She would analyze each case and look at it somewhat narrowly. So she didn’t always have kind of the sweeping view, as say Justice Scalia or Justice — on the other side, a Justice Stevens. So often the lawyers in the cases would look to her and I think if they could get her vote and convince her they were right they could win the case.

MARGARET WARNER: So if lawyers came in and wanted to appeal to Justice O’Connor, what would be their guide post, because ideology wasn’t really it for her, was it?

JAN CRAWFORD GREENBURG: Well, certainly she’s been conservative over her career in many of these critical areas. But as I said, she would decide each case very narrowly. They would have to look to previous decisions and see if they could divine where her views might take her on the next case. People describe her as a very thoughtful, a very conscientious judge, that she liked to take the cases as they came.

MARGARET WARNER: Well, let’s take some of the areas you said: Race. Let’s look at the decisions, especially where she cast the decisive vote in a 5-4.

JAN CRAWFORD GREENBURG: I think certainly the case that we have to look at was back in 2003, which she wrote the opinion — a landmark opinion — that allowed colleges and universities to consider using race as a factor in their admissions process. That was a very narrowly divided court, 5-4. Her vote was critical –

MARGARET WARNER: This was the Michigan affirmative action case?

JAN CRAWFORD GREENBURG: That’s exactly right. And the lawyers in that case that I spoke with, of course everyone in that case said they were looking to Justice O’Connor, they were hoping to persuade Justice O’Connor because some of the other justices had tipped their hand and made their views known on where they might be on that. And in that case, she came down that it was so important to have a diverse society that colleges and universities should be able to consider race as one of many factors — not the only factor and not a quota, but one of many factors.

MARGARET WARNER: How about in the area of religion, where was she decisive there?

JAN CRAWFORD GREENBURG: One of the things I think that we have to think about when we’re looking at Justice O’Connor’s jurisprudence is that she often would side with the four more conservative Justices to provide a critical key vote, but she wouldn’t go along with the reasoning necessarily. So sometimes she would restrain the more conservative Justices from going along with a much more sweeping viewpoint.

And one case that illustrates that very vividly was several years ago, when she gave the majority a key vote in upholding aid to private schools, computer equipment to religious schools, but she refused to go along where the sweeping reasoning of Justice Thomas.

She also was with the Court in approving the use of school vouchers at religious schools, but again not the sweeping reasoning that some of the Justices would have employed that would have even further lowered the wall between church and state.

MARGARET WARNER: And then on the other hand she was against the posting of these Ten Commandment monuments, in the cases –

JAN CRAWFORD GREENBURG: Sure. Again, on Monday we saw the Court, the only majority decision that came out of the Court on that very controversial issue. She joined to provide a one of the five votes in ruling that a display in Kentucky should be unconstitutional because it was an endorsement of religion and that violates the First Amendment.

MARGARET WARNER: Then another topic — I was reading a profile of her when she was appointed and the big question about her was abortion, abortion, where would she be on abortion. Where did she turn out to be abortion?

JAN CRAWFORD GREENBURG: That’s always the big question, and of course she was appointed by an administration that had hoped that the Supreme Court would overturn Roe v. Wade, the landmark decision in 1993 that said a woman had a constitutional right to abortion.

But Justice O’Connor, in a case in 1992 joined with two other Republican appointees and refused to overturn Roe w. Wade. Those three Justices said that states could impose some regulation on abortion but that it couldn’t constitute an undue burden on a woman’s right to choose. So she refused to overturn Roe v. Wade. Now, of course, states have passed many laws imposing regulation on abortion, and many states tried to ban a certain type of abortion several years ago, it’s called partial birth abortion. Justice O’Connor in that case provided a key fifth vote and said that states could not impose those kind of restrictions on abortion. That case was 5-4 and she said those procedures could be important if a woman’s health were on the line and that states must not ban those kind of procedures without allowing an exception for the woman’s health.

MARGARET WARNER: Where was she on the topic that so occupied this Rehnquist court, federalism?

JAN CRAWFORD GREENBURG: Well, the states’ rights, the former state legislator, the former state majority leader in Arizona — states’ rights were a very important issue to Justice O’Connor. She greatly respected the states and local governments; she has written very persuasively and passionately about the role that states play in our process; an important case in 1992, she emphasized that the federal government couldn’t just order the states around.

Our constitutional structure doesn’t envision that the federal government can just tell the states what to do. So she — states’ rights has been an issue that she has again provided the fifth vote. These cases are often decided 5-4. And this is an issue that has of course been very close to her heart.

MARGARET WARNER: So for instance on the guns around the public schools.

JAN CRAWFORD GREENBURG: Sure, the Lopez case that the Court decided ten years ago now, 5-4 case, again Justice O’Connor there saying that states have a very important role to play and that the federal government just can’t come in, horn in on state law enforcement efforts.

MARGARET WARNER: And then weren’t women disappointed that she had a similar ruling when the federal government, when the Congress passed this Violence Against Women Act?

JAN CRAWFORD GREENBURG: That’s right. The Court took up a very controversial case involving a provision of the federal Violence Against Women Act that allowed people to sue for domestic violence in federal court. The lawyers in that case, as we have been discussing, were looking to Justice O’Connor. They knew that she had been a proponent of states rights in some of these 5-4 cases in the past, they had hoped that they could persuade her because of the women and the gender issues at stake, that they could persuade her to change sides in this case.

And I remember an argument, this is something we often saw with Justice O’Connor, she would want to know if there were other remedies, you know, if women had other remedies, and in this case at argument she asked: what would the women do if this federal cause of action were not there? Well, they could go to the state court. There were state laws in place to protect the women.

So at the end of the day, Justice O’Connor was 5-4 with the conservatives again, protecting the states’ rights.

MARGARET WARNER: And then finally, Jan, you’ve sat in on so many of these arguments. What was her style or demeanor like in the courtroom?

JAN CRAWFORD GREENBURG: Justice O’Connor, you know, she’s very much the “no nonsense,” Arizona, you know, cowgirl and she was the first out of the box, in almost every argument to ask the first question. A lawyer would stand up there, you know, ready to make his presentation –

MARGARET WARNER: With prepared remarks –

JAN CRAWFORD GREENBURG: All of his notes, and she would jump right in and say, you say in your briefs, what is this all about. And just right away he’d get three words out; and very active in argument, very active on the bench; always trying to get to the bottom of what the lawyer –

MARGARET WARNER: And was she always looking for what would be, not always, but what would be the practical effect, Mr. Jones, if I were — if we were to rule in your favor?

JAN CRAWFORD GREENBURG: Always. I remember a case, this was not even, this case probably was on Page 14 of the newspaper, several years ago; it involved whether or not police could order passengers out a car when they pulled it over to search. And the lawyer during the case, it was a Maryland attorney general, argued that sure police should be able to do that, and they should be able to detain the passengers as well.

And again Justice O’Connor, in her trademark style, sat straight up on the bench and interrupted him right away and said do you mean detain a pregnant woman with a baby in the rain. You know, so, again, getting to the point of how would the law be applied, how would it affect people, how would it affect women, how would it affect children, obviously things that she was very sensitive to.

MARGARET WARNER: Jan, that’s great. Thank you so much.

JAN CRAWFORD GREENBURG: You’re welcome.