Woman in the Middle

1.

“Never in its entire history can the Supreme Court be said to have for a single hour been representative of anything except the relatively conservative forces of its day.”

So wrote Robert H. Jackson in The Struggle for Judicial Supremacy, a book written, as he put it, “in odd intervals between arguments in Court as Solicitor General” between 1938 and 1940. Those years followed the great fight over President Franklin Roosevelt’s plan to break a conservative judicial stranglehold on the New Deal by packing the Supreme Court with up to six new members.

How strange Jackson’s words must seem to most Americans today. By the end of 1941, the year his book was published, Roosevelt had made seven appointments to the Supreme Court, including finally Jackson himself—and the Court was utterly transformed. Over the sixty-five years since then it has largely been a liberating force in American life, on such matters as race, freedom of speech and the press, privacy, political districting, and the criminal justice system.

Few Americans know now what the Supreme Court was like before 1937. It held in 1905 that a New York law limiting the work of bakers to ten hours a day deprived them of liberty without due process of law. (Justice Holmes, dissenting: “A constitution is not intended to embody a particular economic theory….”) It held in 1918 that Congress went beyond its power over interstate commerce when it forbade the introduction in commerce of the products of child labor. (Justice Holmes, dissenting: “It is not for this court to pronounce when prohibition is necessary to regulation—if it ever may be necessary—to say that it is permissible as against strong drink, but not as against the product of ruined lives.”) From 1935 until the spring of 1937 the Court tried to disable the federal government’s efforts to deal with the worst economic disaster the country had known.

The question at hand—the profound question—is whether the Court is about to turn back toward something more like the conservative voice that Robert Jackson described: not all the way back to the extremity of, say, the child labor case but significantly retreating from its modern role as the guardian of individual liberty. Will it, for example, abandon or drastically reduce its protection of women’s right to have an abortion? Will it yield to the Bush administration’s unrelenting pressure for unconstrained executive power?

The question arises, of course, because of Justice Sandra Day O’Connor’s retirement and her replacement by Justice Samuel Alito. The conservative movement in the country has been pressing for years to undo or roll back the liberal legacy of Chief Justice Earl Warren’s Supreme Court. That passionate wish has been frustrated as justices appointed by three Republican presidents—Nixon, Reagan, and Bush I—turned out to be on the whole more moderate than desired and, in particular, preserved the constitutional protection given to abortion by the decision in Roe v. Wade. Now, many conservatives believe, their moment has finally come with the second Bush’s appointment of John G. Roberts as Chief Justice and of Justice Alito.

In these past years of right-wing frustration, Sandra Day O’Connor played a crucial part. On abortion, affirmative action, and some other issues, she cast the deciding vote that preserved the status quo. Depending on one’s point of view, she was a brave defender of the Constitution or a traitor to the president who put her on the Court, Reagan, and his supporters. All of which makes Joan Biskupic’s study of Justice O’Connor a timely and important book.

Biskupic says O’Connor became the Court’s “most influential justice.” That is true in a nose-counting sense. In notable 5–4 decisions she was on the majority side, the decisive vote. But it is not true in the sense of propounding a doctrine, an approach to interpreting the Constitution, that influenced her colleagues and remains a beacon for future justices. By contrast, think of Justice Hugo L. Black, who single-mindedly argued for an absolute view of free speech. He was often in dissent, on that and other matters, but over the years many of his dissenting opinions became the law—strikingly so when the Court in 1962 overruled its earlier view and held that the fairness of legislative districting was subject to judicial scrutiny.

In deciding cases in which fundamental judicial beliefs clashed, like affirmative action and abortion, O’Connor frequently avoided taking either side in the philosophical debate. Instead she looked for factual points and nice legal distinctions that enabled her to come out somewhere near the middle. Under the impact of the Voting Rights Act of 1965, for example, some Southern states that had long had all-white delegations in the House of Representatives made changes to assure that there would be black-majority populations in some districts. White voters challenged the process, saying it denied them equal protection of the laws. Justice O’Connor, skeptical of the process, at first held the black-majority districts unconstitutional; but she later approved such redistricting, drawing fine distinctions that others could not see.

That approach was praised by advocates of what Professor Cass Sunstein of the University of Chicago calls judicial “minimalism.” Biskupic quotes Sunstein’s view that avoiding large constitutional principles as the basis for decisions is a way “to keep things open for the future…for democratic deliberation….” Another admiring quotation, from Professor John Jeffries of the University of Virginia Law School, describes Justice O’Connor’s method as “first, to do justice on the facts of a particular case,” then to link “the results in the case to general principles.” “That’s a very different approach from someone who starts off with ideological principles,” Professor Jeffries said, adding, “I think Americans generally have more confidence in judges who do not reach too broadly.”

Others were critical. Too often, they said, O’Connor’s opinions gave no meaningful guidance to lower-court judges—which is one thing Supreme Court decisions are meant to do. They were like restricted railroad tickets, as Justice Owen J. Roberts complained in a 1944 dissent, “good for this day and train only.” An example of an opinion so narrow as to leave the law in question, in my judgment, was in a 1993 decision, Shaw v. Reno, holding that a “bizarrely” shaped North Carolina congressional district had unconstitutional effects on white voters—without indicating what could be done to improve the chances that at least some black candidates could be elected from that part of North Carolina. Justice Byron White, in dissent, said that concentrating on the shape of the district rather than the impact of the districting on the real world set no usable standard. White pointed out that white voters still were a majority in ten of North Carolina’s twelve congressional districts—a bit more than their share of the state’s population.

O’Connor’s opinion in Shaw v. Reno leaves the impression that she was simply uneasy about using skin color as the basis of a governmental decision. She came close, in other words, to the position of the four justices who voted consistently against any affirmative action: Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. But she held back from adopting such a firm rule, and that was crucial to the future of the issue. It left the way open for the Court’s later decision—in an opinion by O’Connor—upholding the steps taken by the University of Michigan Law School to assure minority representation among its students.

For an assessment of Sandra Day O’Connor as a judge, then, the case of Shaw v. Reno shows the advantages and disadvantages of her incremental approach. I think it also shows the limitations of her historical understanding. Biskupic quotes what she calls a “rhetorical flourish” from the opinion: an assertion that the North Carolina districts bear “an uncomfortable resemblance to political apartheid.” It was a grotesque flourish, if flourish it was, to compare South Africa’s denial to its black majority of the right to vote at all, and virtually all other rights, with an attempt to assure blacks in the American South a chance to elect some of their own after suffering unconstitutional discrimination for a century.

Biskupic makes no comment on O’Connor’s flawed analogy to apartheid. Throughout the book she avoids critical analysis of her subject’s opinions. She gives dissenters their day, straightforwardly describing the opinions on both sides and, often, giving illuminating accounts of the struggles behind them that took place among the justices. Her reporting is fair and accurate, but I found it a bit bland and, sometimes, lacking a larger perspective. I especially missed discussion of the turbulent history behind one of the main themes of O’Connor’s years on the Court: state versus federal authority.

The child labor decision of 1918 was not an isolated example of the old Court’s narrow view of the federal government’s power under the Constitution. Again and again the Court found that federal regulations and laws went too far. In 1936, in the depths of the Depression, it struck down the Agricultural Adjustment Act of 1933, which sought to raise grimly depressed farm prices by cutting production of various crops: a model for the system that exists today without any constitutional challenge. It was decisions like that one, United States v. Butler, that led President Roosevelt to challenge the Supreme Court. His Court-packing plan—which would have allowed him to appoint a new justice if a justice refused to retire at seventy—was rejected by public opinion and by Congress. But the Court retreated, and conservative justices began to retire. Before long the Court upheld federal regulation of wages and hours, and federal limits on the wheat a farmer could grow even for his own use.

In 1995, in United States v. Lopez, the Supreme Court held unconstitutional—as beyond Congress’s power over interstate commerce—a federal statute barring guns in zones around schools. It was a startling reversal of the assumption, almost universally held after the wheat-grower’s case and other landmarks of the post-1937 judicial revolution, that Congress could regulate just about any activity as an aspect of interstate commerce.¹ The opinion for a 5–4 majority was by Chief Justice Rehnquist, joined by Justice O’Connor. Biskupic describes it in a few sentences, with no reference to the history behind it,

The federalism revolution, as commentators called it, was marked by a series of cases deciding that Congress could not authorize civil suits against state agencies that violated federal laws. Among the statutes thus restricted were ones that authorized patent and trademark suits against states, one that directed states to negotiate with Indian tribes about gambling activities and allowed tribes to sue states that refused to do so, and one requiring states as well as private employers to give premium pay for overtime.

The basis of all those decisions was the Eleventh Amendment to the Constitution, which forbade suits by a citizen of one state against another state. It was intended to deal with suits on issues of state law, such as contract disputes. These decisions applied the amendment to suits on federal issues, including cases brought by individuals against their own states. The text of the Eleventh Amendment did not literally cover the situation. But the Court’s majority said the amendment implied a larger principle: the sovereign immunity of states, which was essential to the states’ “dignity.” They were breathtaking decisions, breaking sharply with precedents. They have been neglected in public discussion, and Biskupic does not convey how astonishing they were, or remark on the irony that conservative judges who often complain about judges “legislating from the bench,” and departing from constitutional texts, were engaging wholesale in those practices.

In 2000, Justice O’Connor added a bold opinion of her own to the federalism revolution. It held unconstitutional a congressional statute allowing employees of state agencies to sue them for violation of the Age Discrimination Act. O’Connor’s opinion read in places like a parody of judicial legislation. “Our examination of the legislative record,” she wrote, “confirms that Congress’s 1974 extension of the Age Discrimination Act to the states was an unwarranted response to a perhaps inconsequential problem.” It is not, however, the business of courts to say whether Congress’s action on a perceived problem was “warranted,” as conservatives would usually be the first to say. The judicial role is only to decide whether the action violated some provision of the Constitution.

As Biskupic brings out very well, O’Connor identified strongly with state governments. She had been an Arizona official, legislator, and judge, and she believed in federalism. Indeed, so strongly did she favor giving states ample room to exercise power free of federal direction that her work in this field of the law was almost an exception to her usual search for the middle ground. She wrote for the Court when it held that a death row prisoner in Virginia who claimed he was innocent could not be heard in federal courts because his lawyer had previously been three days late filing a petition for habeas corpus in the Virginia courts. “This is a case about federalism,” Justice O’Connor wrote.

Death penalty cases put an enormous burden on the justices: not just on their time but on their sense of moral responsibility. It is a weight that I would find hard to bear. It would be unfair to Justice O’Connor to leave the impression, based on her seemingly coldhearted statement that federalism rather than justice was the issue in the Virginia case, that she shrugged off that burden in the name of federalism. In 2003, notwithstanding her concern for state authority, she wrote an opinion for the Court finding that a state prisoner facing execution for murder had not had a fair trial because his lawyer had failed to produce available evidence that he had been abused as a child—evidence that might have persuaded the jury to withhold the death penalty. It was a pathbreaking decision that warned state courts to do something about the often inadequate counsel in capital cases.

The case in which O’Connor broke most sharply from her usual respect for state authority was Bush v. Gore. Biskupic provides an interesting quotation from her, based on an interview with her brother Alan. Immediately after the election of November 7, 2000, Alan predicted that the gathering turmoil over vote-counting in Florida would end up in her court. “Oh no,” she replied, “it could never go to the Supreme Court. That’s a state matter.” Many legal scholars thought exactly that, believing there was no question of federal law. But in the end a 5–4 majority, including O’Connor, took jurisdiction of the case brought by George W. Bush, ordered the vote-counting in Florida to stop, and made Bush president. Why? The murky, unpersuasive opinions of the justices gave no clear explanation. From her questions at oral argument of the case one might conclude that O’Connor was simply critical of the performance of the Florida Supreme Court. The US Supreme Court has no power to second-guess the decisions of a state court on issues of state law. So we are told. But in this case that is essentially what it did.

2.

Justice O’Connor has told the story of her early years, at the Lazy B ranch in Arizona, in her memoir, Lazy B. But Biskupic finds a good deal new to say about her rise from those ranch beginnings, and she says it well. What strikes the reader is how ambitious O’Connor was: not in the suspect Shakespearean sense of the term (“Yet Brutus says he was ambitious…”) but in her straightforward determination to use her talents and rise. It is good to be reminded, now, how hard it was for a woman to fulfill her ability then. When O’Connor graduated from Stanford Law School in 1952, near the top of her class, she was unable to get a job in leading California law firms.

In Phoenix, in the mid-1950s, she went into private practice, then in 1965 became an assistant state attorney general. Four years later she was appointed to a vacant seat in the state senate. In a few more years she was the senate majority leader. She was intensely active in Republican politics, a friend of Barry Goldwater, co-chairman of the Nixon reelection campaign in Arizona in 1972, and an organizer of support for Nixon’s nomination of her Stanford classmate William Rehnquist to the Supreme Court. She was elected a state trial judge and then appointed to the Arizona Court of Appeals, by a Democratic governor, Bruce Babbitt.

A judge on an intermediate state appellate court is not usually a plausible candidate for the Supreme Court of the United States. But when Justice Potter Stewart retired in 1981, O’Connor had connections in high Republican circles, and President Reagan had the vacancy to fill. Chief Justice Warren B. Burger was a friend—they had met years before, and in 1971 Burger invited her to an Anglo-American legal conference in London. Burger, Biskupic says, brought O’Connor’s name to Reagan’s attention when he learned of Justice Stewart’s intention to retire. (Burger as chief justice never assigned a significant opinion to Justice O’Connor to write for the Court in the five years before he retired in 1986: an outrage that Biskupic does not attempt to explain. Other members spoke bitterly, in private, about Burger’s arbitrary practices as chief justice.)

When Reagan nominated O’Connor, The Nation magazine said:

In the general satisfaction—which we share—over the selection of a woman, no one seems to have noticed that in choosing Judge O’Connor, President Reagan has overridden some fundamental conservative principles…. For the highest Court in the land he has picked a person barely qualified for the post, almost entirely because of her sex and not on the basis of individual merit. Despite the many kind words of her friends, Judge O’Connor’s record is not even close to Supreme Court quality. She was not an exceptional lawyer or legal scholar, nor is she an outstanding judge.

It is certainly true that O’Connor was picked because she was a woman. When Justice Antonin Scalia was railing against affirmative action in one of the justices’ private conferences, O’Connor said, “Why Nino, how do you think I got my job?” But looking back at her record now, no sensible person can doubt that she was qualified. She has more than held her own with her colleagues in the quantity and quality of her opinions, however much one may disagree with this one or that. She has forever destroyed the myth of male supremacy for Supreme Court judges. For President Reagan to pick a woman was in fact one of the most important things he could have done, for the Court and the country.

In a discussion of O’Connor’s record one subject needs particular attention. That is abortion. As Biskupic turns to it here and there in the book, there are curious twists in her account. As a state senator in 1970, before the Supreme Court decided Roe v. Wade, O’Connor voted in committee to repeal an Arizona law that made abortion a crime except when necessary to save a woman’s life. After Roe, she voted against anti-abortion proposals in the legislature. A leader of the right-to-life movement in Arizona, Dr. Carolyn Gerster, opposed O’Connor’s nomination to the Court and tried to bring that early record to the attention of the White House before the nomination was made.

The then attorney general, William French Smith, asked a young assistant of his, Kenneth Starr, to check O’Connor’s record on abortion. Starr’s resulting memorandum to Smith, which Biskupic quotes, said he had talked twice to O’Connor on the telephone and “she has no recollection of how she voted” on the 1970 abortion reform bill in the Arizona senate. Starr did not ask Dr. Gerster about O’Connor or look up the local newspapers, which published prominent reports on the bill to repeal the law against abortion and said that O’Connor had voted for it.

In the Senate hearings on her nomination, O’Connor fenced with Senator Jeremiah Denton, a deeply conservative Alabama Republican, about abortion. She said it was “repugnant to me and something in which I would not engage.” Then, most interestingly, she said, “Where you draw the line as a matter of public policy is really the task of the legislator to determine.” That sounded as though she thought the Supreme Court should leave the issue to legislatures, and it satisfied most of the anti-abortionists in the Senate, which confirmed O’Connor unanimously.

In the Supreme Court, abortion provided the perfect example of Justice O’Connor’s wish to steer toward the center—if possible to play a mediating role. In 1983 she voted in dissent to uphold restrictions on abortion imposed by an Akron, Ohio, law. She said that “legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts.” The statement echoed what she had said in her confirmation hearing. But she did not call for overruling Roe v. Wade. She introduced, instead, a new formula: that the courts should subject abortion regulations to strict scrutiny only if they imposed an “undue burden” on women seeking an abortion. In 1989, in the important case of Webster v. Reproductive Health Services, membership on the Court had changed; there was now a five-judge majority to uphold restrictive regulations. But she would not join Chief Justice Rehnquist and the others in overruling Roe. She said that only when the constitutionality of an abortion law actually turned on Roe’s validity would it be time to reexamine Roe. “And to do so carefully.”

Finally, in 1992, there came the decisive test: Planned Parenthood v. Casey, in which restrictions on abortion were at issue. It looked as though Roe was doomed. But in an extraordinary turn of events, O’Connor joined with Justices Anthony Kennedy and David Souter in a joint opinion that upheld two of the Pennsylvania abortion restrictions under challenge but rejected the third, requiring that a woman notify her husband. Crucially, the three said that Roe v. Wade, for so long a part of constitutional law, should stand. Stare decisis required as much. Some justices find abortion morally offensive, the three justices wrote, but: “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Joan Biskupic has covered the Supreme Court as a reporter since 1989 for The Washington Post and since 2000 for USA Today. She knows the subject and she has found new material, in good part by using the files of such past justices as Lewis F. Powell Jr. Justice O’Connor would not cooperate; she refused to be interviewed for the book. Biskupic was not daunted by that, and I do not think the lack of access had much impact on the picture she is able to give of Sandra Day O’Connor.

The picture is of a focused person, on and off the Court. When in her forties O’Connor decided to take up golf, she first hit balls on a driving range for two years. On the Court, after some years of finding her way, she used her position at the center to try to form majorities. Justice Brennan used to say that the crucial skill needed by a Supreme Court justice was the ability to count to five, and he was a master at it. So was O’Connor, beating Brennan at his own game as the Court became more conservative.

O’Connor was the only member of the recent Supreme Court who came there from a state court. (That used to be a more frequent source of justices, including Holmes, who served for twenty years on the Massachusetts Supreme Judicial Court.) Her experience helped to produce her strong interest in state law: a good thing, if you believe as I do that law schools concentrate far too much on federal courts. Her background in a state court showed up in a case that Biskupic does not mention: Republican Party of Minnesota v. White, decided in 2002. Like most states, Minnesota elects its judges. Again like most, it had a rule of judicial conduct forbidding candidates for judgeships to announce in advance their views on disputed legal or political issues. The Republican Party of Minnesota challenged the rule, arguing that it violated the right of judicial candidates to free speech under the First Amendment. A 5–4 majority held for the party, over the dissenting protest of the liberal four that the result would politicize the courts. O’Connor, in a concurring opinion, said “the very practice of electing judges undermines” the interest in a judiciary that is, and is perceived to be, impartial. But so long as judges were elected, she said, they must be free to say what they want in campaigning. Her suggestion was that states should move to an appointive system—which she surely knew had almost no chance of happening.

The outcome of the case seems to me an egregious misapplication of the First Amendment. The test of judicial decisions is not, as Holmes said of political speech, “the power of the thought to get itself accepted in the competition of the market.” Great judges must sometimes run against the grain of popular opinion. Holmes is remembered, and revered, for urging the protection of radical speech at a time—World War I—when antagonism to antiwar radicals was running high. To allow those campaigning for judicial office to promise a particular result tends to politicize the courts—to make judges seem just another species of politician. The Minnesota case has led to the end of similar rules in other states against candidates taking political stands in judicial elections. That exacerbates a growing trend toward big spending in judicial races. Candidates for judgeships in Ohio and Illinois have spent over $1 million on campaigns. And powerful interests increasingly throw their support to one candidate or another in the expectation that he or she will vote the right way on such issues as punitive damages.

Justice O’Connor was not a philosopher on the bench, and she did not think of herself as one. She decided legal problems in ways that she thought produced just results—or perhaps results near the center of American views. The membership of the Court, unchanged for ten years, gave her an unpredicted, and unpredictable, role as the judge whose vote would form a majority. Whether her work in that role, work that in some cases was concerned to avoid disagreement on issues of principle, will have lasting influence remains unclear.

Her replacement by Justice Alito may well either overthrow Roe v. Wade or so hem it about with regulations that women who are poor or live in remote places will have no real chance for a legal and safe abortion.² The harder question, and I think the more important one, is what the Supreme Court will do about the Bush administration’s claim that President Bush has “inherent power” to do whatever he deems useful in the “war on terror”: order the torture of prisoners, wiretap Americans without warrants, detain American citizens forever without trial on suspicion of terrorist connections. Soon after joining the Court, Alito hired as a law clerk Adam Ciongoli, a thirty-seven-year-old lawyer who had clerked for him a decade ago on the Court of Appeals. Ciongoli was a counselor to Attorney General John Ashcroft when the Bush administration adopted its legal responses to terrorism after September 11, 2001.

Justice O’Connor wrote a notable opinion on the question of presidential war power, in Hamdi v. Rumsfeld in 2004. Yaser Hamdi, an American citizen, had been captured on the battlefield in Afghanistan, and detained indefinitely in a Navy brig in South Carolina, in solitary confinement, without trial and without access to counsel. In the prevailing opinion, O’Connor wrote for herself, Rehnquist, Kennedy, and Breyer that detention was lawful under the Authorization for Use of Military Force passed by Congress after the terrorist attacks of September 11, 2001, but that Hamdi was entitled to a meaningful hearing and access to a lawyer. “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” she wrote. The government since then has nevertheless seized on the opinion’s allowance of detention to claim broad powers under the post-9/11 statute. In doing so it ignores the narrow circumstances in the Hamdi case, which involved the capture of someone on a foreign battlefield. I think there can be no doubt that Justice O’Connor would have been skeptical of talk about the “inherent power” of war presidents in future cases had she still been on the Court.

Justice Jackson’s thesis that the Supreme Court is the voice of conservatism is plainly no longer true. The Court often speaks, rather, for immanent American beliefs on issues of conscience. So it did on race in 1954. Most Americans had not faced the issue of segregation then; but when Martin Luther King Jr. brought its reality home, Americans on the whole rejected it. Similarly, a majority did not want to put women and doctors in prison for abortion, and still does not despite the political gains of the right to life movement.

In a closely divided society, Sandra Day O’Connor embodied both tensions over passionately felt issues and the desire of many Americans to find some centrist way to resolve them. The appointive power of the President and the accidents of political history may now give more weight to the conservative side of the conflicts she tried to resolve. Is there some mysterious force within the Supreme Court that will move Justices Roberts and Alito toward the center? I doubt it. But I tend to be romantic about the Court, and I believe that the responsibility of sharing in its judgments may lift the vision of its members.

When Justice Black took his seat on the Court in 1937, it had just been disclosed that in winning his campaign for the Senate years before in Alabama he had joined the Ku Klux Klan. He was bitterly criticized as a racist. In truth he was not. A little more than two years later Chief Justice Charles Evans Hughes assigned to him the Court’s opinion in Chambers v. Florida, a case about the railroading of four black men to death sentences on the basis of forced confessions. The convictions were reversed, and Justice Black wrote:

Under our constitutional system, courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.