For several years, the Supreme Court was effectively the O'Connor Court. As has been widely noted, Sandra Day O'Connor's willingness to side sometimes with the conservatives and sometimes with the liberals, and her tendency to write concurrences that narrowed the opinions of her more ambitious colleagues, made her the most powerful member of the Court and arguably the most powerful person in the country. Lawyers tailored their arguments to win her sympathy; court-watchers struggled to predict her votes.
It may be surprising, then, that her legacy as a justice will likely be limited and ephemeral. But the qualities that made her powerful while on the Court will diminish her influence once she is gone. In part, that is the fate of any centrist, who will inevitably see some of her positions repudiated by a more ideologically consistent successor. But in Justice O'Connor's case, the effect is magnified by her tendency to write narrowly enough to leave significant issues undecided.
O'Connor's idiosyncratic centrism is legendary. After years of expressing skepticism about the right to abortion recognized in Roe v. Wade, she joined with two other Republican appointees, Anthony Kennedy and David Souter, to write an opinion preserving Roe's central holding. Yet she also joined the more conservative justices to strike down the Gun-Free School Zones Act as exceeding Congress's power under the Commerce Clause -- a decision that signaled the Court's increasing concern for federalism. In some cases, her ability to find a middle ground seemed almost supernatural. Her decisive votes in the 2003 affirmative action cases struck down the University of Michigan's affirmative action program for undergraduate admissions and upheld the law school program by relying on a distinction that no other justice could see.
This is not necessarily a criticism. On a narrowly divided Court, in a narrowly divided country, splitting the difference has much to recommend it. O'Connor's unwillingness to endorse broad principles did not stem, as some charged, from any uncertainty or inability to make up her mind. She was a swing justice but not a vacillating one; a cushion in her chambers bears the embroidered motto “Maybe in error, but never in doubt.” Nor was it an attempt to maintain her own influence by preserving her freedom to vote either way in the future. Instead, her desire to rule no more broadly than necessary was intended to leave room for further workings of the democratic political process.
Other justices will leave behind them identifiable bodies of law, doctrines that they have created. After Antonin Scalia's opinion in Employment Division v. Smith, for example, the crucial question with respect to religious freedom claims is no longer whether a governmental regulation significantly burdens the free exercise of religion; now, it is whether the regulation singles out religious activity. Likewise, William Rehnquist's opinions in United States v. Lopez and United States v. Morrison changed the terms of the analysis of congressional power under the Commerce Clause. After those decisions, courts no longer ask whether the activity Congress seeks to regulate substantially affects interstate commerce; instead, first they ask whether the activity is commercial or noncommercial in nature. Barring a surprising reversal, courts will be asking those same questions decades after Rehnquist and Scalia retire.
In the areas of law where O'Connor's influence was greatest -- abortion rights, the Establishment Clause of the First Amendment, and legislative redistricting -- the key question was the same both before and after her opinions: What will Justice O'Connor think? That is not a legal doctrine that can bind future courts, and it is a question no one will be asking once her replacement is on the bench.
That is a pity. Following the announcement of her retirement, commentators busied themselves constructing lists of decisions in which she had provided the crucial vote. (A good example, assembled by Marty Lederman, can be found here.) The roster is impressive. From affirmative action to government funding of religion, from campaign finance reform to legislative redistricting, a great many significant legal issues are now up for grabs. The answers the Court gives in the future may well be clearer than those it arrived at during O'Connor's tenure. But they will also be more likely to frustrate the attempts of the American people to work out disagreements amongst themselves. And they will quite likely be imposed in the name of an approach to constitutional interpretation that most Americans, and most lawyers, do not share.
O'Connor's characteristic contribution on the Court -- and perhaps her greatest -- was a moderating influence, restraining the ability of other justices to write their convictions into law. With her departure, the Court has lost its anchor and may soon proceed on the very courses she once denied it.
Kermit Roosevelt is an assistant professor of constitutional law at the University of Pennsylvania Law School. He clerked for Justice David Souter in the 1999-2000 term and is the author, most recently, of the novel In the Shadow of the Law.
