The Pivotal Vote

October 01, 1995|By LYLE DENNISTON | LYLE DENNISTON,SUN NATIONAL STAFF

The woman who breached the male bastion of the Supreme Court 14 years ago is not ready, at age 65, to retreat to the place history has reserved for her. Justice Sandra Day O'Connor is at the peak of her power on the court and over the lives of Americans.

She has converted her one vote on the court into a formidable authority - and has done so almost by accident. Achieving the pinnacle of influence without obviously seeking it, Justice O'Connor has outlasted the rapid changes at the court to emerge as first among equals.

Fervently independent, the product of a hardy and isolated upbringing in Arizona amid Old West traditions, she attracts allies with great regularity. With her at the pivot, compromise on a frequently divided court can come more easily - often on her terms.

Her style of crafting open-ended, broadly phrased doctrine, unsettling to those legal experts who prefer a court that speaks with precision, helps her draw a struggling court toward common ground.

In short, the tribunal that starts a new term tomorrow most reflects Justice O'Connor's personality, her philosophy, her dominance. The court has shifted more to the right, and her basic conservative instincts put her nearer the center among the nine on the bench.

Tulane University political science professor Nancy Maveety, who is now finishing a book on Justice O'Connor, says that the justice has become ""very influential in a way that has not been noteworthy to court observers; she is sort of a neglected figure."

The fact that Justice O'Connor was the first woman on the court, Professor Maveety suggests, ""has overshadowed a lot of what she has done" in moving to the forefront. The judicial strategy that has worked best for Justice O'Connor, the professor says, is working from the outside of coalitions" rather than lobbying from within to collect majorities around her positions.

University of Minnesota law professor Suzanna Sherry, who has closely followed Justice O'Connor's rise to eminence, sums her up this way: ""She is less likely to adopt bright-line rules, she works to create balancing tests, and she tends to be a compromiser - and that is what is making her the pivotal vote."

The professor adds: ""Am I impressed? Yes, I'm not only impressed: I admire her. She is judging, not just applying principles."

Georgetown law professor L. Michael Seidman, who does not share others' admiration of Justice O'Connor and who sharply criticizes much of her work, nonetheless concludes that ""she is perhaps the most influential justice, she has the most power."

O'Connor's doctrines

The O'Connor moment in the court's history, however, may not last. It might be at risk if, after next year's presidential election, new appointees to the court tug it sharply to the extremes -- beyond the range of the subtle, quiet power she now wields.

At stake when new justices arrive over the next five years will be some of the philosophical positions that Justice O'Connor has held and championed for years, and now sees enshrined in the law of the land.

Some of the most significant of those doctrines:

* Women have a limited right to abortion, subject to close restrictions by the state legislatures or Congress.

* "Affirmative action" programs that allot public benefits on the basis of race must remain an exception, enacted only for the strongest public policy reasons.

* Racial gerrymandering of election districts, to make them safe for black candidates, promotes racial discord and should seldom be used.

* Single-sex education at public colleges or universities cannot be justified by biased assumptions about what men or women are capable of doing.

* Religious devotion, including prayers, rituals and displays, must be allowed in the nation's public life unless the government is the visible sponsor or endorses it.

* Death row inmates convicted in imperfect trials are to be spared only if they can prove they actually were innocent.

* Prison inmates must not get multiple chances to raise legal or constitutional challenges to their state convictions in federal court -- unless they can show they were innocent, after all.

* State governments have the right to expect full respect for their powers and their options from the federal government, and federal intrusions are to be allowed only to serve the most demanding national needs.

* Lawyers have a right to free speech, but not when they use it for blatant self-promotion or outright huckstering.

The decisive fifth vote

On those issues, and many hard questions on which the court is likely to split, lawyers tend to pin their hopes -- and sometimes their strategies -- on their chances of winning Justice O'Connor's vote.

"Over the last six or seven terms, she probably has been the key person," according to James F. Simon, a New York Law School professor and author of "The Center Holds," a new book about how the middle bloc on the court -- including Justice O'Connor -- has consolidated its control.

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