by Mitch Margo
Special to the Daily Record
It’s fun when things don’t go as planned, especially when it’s someone else’s plan. After the two recent publicized decisions of the Supreme Court — one upholding affirmative action and the other upholding gay rights — President Bush’s Republican administration has to be wonder what has gone wrong.
After all, Republican presidents have nominated seven of the nine justices, but the two blockbuster cases fell squarely left of center. Attorney General John Ashcroft supported the loser in both. In the middle of these two centrist decisions favoring typically liberal issues is Justice Sandra Day O’Connor, age 73, and a Reagan appointee. She has become the voice of reason on this Supreme Court, who cannot be characterized as either liberal or conservative.
Looking at this term, however, she can be characterized as correct. In the term, the Supreme Court handed down 13 decisions that were decided by a 5-4 vote, and only Justice O’Connor voted in the majority on every one of them.
“She is the most powerful woman in the history of the universe,” joked Thomas Goldstein, a Supreme Court advocate and scholar. He was speaking at a recent panel discussion in Washington.
The comment reportedly drew laughter from reporters, who have spent their last few days sorting through the Court’s landmark opinions dealing with affirmative action and gay rights, but no one challenged the underlying assertion.
O’Connor has shown that she is neither consistently conservative nor consistently liberal. But she is consistently on the winning side.
Warren Richey of The Christian Science Monitor, who regularly covers the Suprem Court, writes, “It isn’t just that O’Connor often emerges as the tiebreaker in an otherwise even split between conservatives and liberals. She often uses her deciding vote to achieve what in her view is a measure of justice. To do it requires a close examination, not only of the law, but often of the particular facts of a case. This ad hoc approach, unmoored from an overriding judicial philosophy, can sometimes make hers a difficult vote to predict.”
Richey reports that on the liberal side, Justice O’Connor concurred in the landmark gay rights decision authored by Justice Anthony Kennedy. She chose women’s rights over federalism in upholding the application of the federal Family Medical Leave Act to state employers. And she sided with the court’s liberal wing in upholding a challenge to the use of client escrow accounts to underwrite legal services for the poor.
On the conservative side, says Richey, she wrote two majority 5-4 decisions upholding California’s Three Strikes Law, authorizing potential life prison terms for repeat shoplifters. In a key immigration case, she joined the conservative wing in a ruling that criminal aliens detained pending their removal proceedings do not have a constitutional right to challenge their automatic detention. And she joined a four-justice plurality upholding a federal law requiring libraries to use Internet filtering software to protect children from exposure to pornography on public library computers.
This term Justice O’Connor is being lauded by the left, but, next term who knows? But what can be gleaned from following Justice O’Connor is that she has nobody’s agenda but her own, and she is applying her agenda in what she believes is the best interest of these United States under the law. Perhaps the other Justices, both right and left, should take notice.
— Syndicated columnist Mitch Margo
is a St. Louis attorney.