Henry Mark Holzer: Justice O'Connor Was No Conservative on the Bench

[Henry Mark Holzer is a Professor Emeritus at Brooklyn Law School, specializing in constitutional and appellate law. Author of five books and co-author of two, including Aid and Comfort: Jane Fonda in North Vietnam, he regularly contributes to Frontpagemag.com.]

Faced with a Supreme Court vacancy, a President whose paradigm for justices is Scalia and Thomas, a Republican majority in the Senate, the “exceptional circumstances” limitation on filibusters, and, in the wings, the “nuclear option,” the Left is loudly singing the praises of retiring Justice Sandra Day O’Connor. Harry Reid: “Justice O’Connor has been a voice of reason and moderation on the court. It is vital that she be replaced by someone like her . . . .” Ted Kennedy: “Justice O’Connor was a mainstream conservative. I hope the president will select someone [like her] . . . .” Nancy Pelosi: “As the president nominates a successor, he has an opportunity to . . . [choose] a respected nominee in the manner of Sandra Day O’Connor.”

O’Connor was no “mainstream conservative.”

The Cato Supreme Court Review has accurately noted that “While Justice Sandra Day O’Connor has been a key vote in reinvigorating constitutional limits on federal power, her unpredictable style of judging—favoring narrow, vague decisions over broad, clear ones—has short-changed the Rehnquist Court’s promise, ensuring that on many key fronts the Constitution’s most important guarantees remain under-enforced.”

That’s the least of Sandra Day O’Connor’s dereliction of duty.

O’Connor sat on the Supreme Court of the United States for twenty-four years. During her tenure she participated in thousands of cases and wrote hundreds of opinions—majority, concurring, and dissenting. The cases covered a broad spectrum: federalism, separation of powers, judicial review, federal statutory interpretation, First Amendment, criminal justice, civil rights, race relations—and much more.

Space does not allow a comprehensive review or critical analysis of O’Connor’s near quarter-century work on the Court—especially those cases of a highly technical legal/constitutional nature. Accordingly, I have selected four paradigmatic cases—cases in which O’Connor was the swing vote that made a majority of five. These cases prove that conservative values have paid a steep price for President Reagan’s affirmative action appointment of Sandra Day O’Connor.

Affirmative Action

In its admission policies, the University of Michigan Law School, a public institution, considers a host of criteria, but expresses its “diversity commitment” by giving special consideration to applicants who are African-American, Hispanic, and Native-American.

A white Michigan resident with a near-perfect GPA and a high LSAT score was denied admission, while members of the three minorities with considerably lower grades and scores were admitted.

The Supreme Court majority in Grutter v. Bollinger—in an opinion written by Justice O’Connor, and joined by the liberal quartet of Stevens, Souter, Ginsburg and Breyer—held that the school’s affirmative action admissions program constitutionally furthered a “compelling state interest”; to wit, obtaining “educational benefits” (whatever that means) that might flow from a “diverse” student body.

The Reporter of Decisions of the Court summarized what the four liberal justices, and their swing vote colleague, Sandra Day O’Connor, found appealing about “diversity”:

Enrolling a "critical mass" of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional. * * * But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. . . . [S]uch diversity promotes learning outcomes and better prepares students for an increasingly diverse workforce, for society, and for the legal profession. Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security.

The Court is satisfied that the Law School adequately considered the available alternatives. The Court is also satisfied that, in the context of individualized consideration of the possible diversity contributions of each applicant, the Law School's race-conscious admissions program does not unduly harm non-minority applicants. Finally, race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. [Emphasis added]

In assessing the Left’s anointing of Justice O’Connor as a “mainstream conservative,” it is worth underscoring some of the considerations that animated this opinion, which held to be constitutional a public law school’s rejection of a better qualified applicant in favor of a lesser qualified one: cross-racial understanding, breaking down of racial stereotypes, promoting learning outcomes—and, the icing on the affirmative action cake, national security. As to the rejected white applicant, O’Connor told her that she had not been “unduly” harmed. After all, perhaps one day she would get what she was entitled to—though it could take 25 years.

Abortion

In 1988 and 1989, Pennsylvania amended its abortion statute. In a case entitled Planned Parenthood v. Casey, the abortion-on-demand organizations and others challenged the amendments’ constitutionality, presenting the Supreme Court with an opportunity to revisit and overrule its constitutionally indefensible 1973 so-called “right to privacy” decision in Roe v. Wade.

In 1992, thirteen years and countless abortions ago, Chief Justice Rehnquist and Associate Justices White, Scalia and Thomas were ready to do just that: “We believe that Roe was wrongly decided,” Rehnquist wrote for himself and his three colleagues, “and that it can and should be overruled . . . .” Rehnquist had four votes to overrule Roe. But only four.

Not surprisingly, the chameleon Kennedy joined the three liberals: Blackmun (Roe’s author), Stevens, and Souter. Four against four. The “mainstream conservative” justice, Harry Reid’s “voice of reason,” Sandra Day O’Connor, gave her vote to the abortionists.

Co-authoring the opinion with Souter and Kennedy, O’Connor wrote:“[A]fter considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis [precedent], we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed.”

Several years later, in Stenberg v. Carhart—a 5-4 opinion written by liberal Justice Breyer, joined by liberal Justices Stevens, Souter and Ginsburg, and understandably characterized by Ann Coulter as “the most monstrous opinion in the history of the [C]ourt”— O’Connor provided the swing vote to hold unconstitutional a Nebraska statute (and thus similar statutes in other states) criminalizing “partial birth” abortions.

Thus, not only did O’Connor allow the abomination of Roe to survive, but she was responsible for its progeny: the barbaric practice of “partial birth” abortion.

Sex Offenders

A California law authorized prosecution for sexual abuse of children even after the previous statute of limitations had expired. Under the law, a criminal complaint was timely if filed within one year of the victim’s report to a California law enforcement agency, the crime involved “substantial sexual conduct,” and there was “independent evidence that clearly and convincingly corroborated the victim’s allegation.”

The question for the Supreme Court in Stogner v. California was whether the California statute violated the Ex Post Facto Clause of the federal Constitution. Breyer wrote the majority opinion for himself and his liberal colleagues (Stevens, Souter, Ginsburg)—and the fifth, swing vote, O’Connor. They held the law unconstitutional even though the four dissenters pointed out that in other situations involving minors, states often suspend statutes of limitation, that “stale evidence” problems can be handled by the trial judge and jury, that the traditional requirement of proof beyond a reasonable doubt remained, and that the statute required corroboration by independent evidence.

Thus, despite a notoriously common problem—that sexual abuse is often not reported soon after the episode(s) occurs, but often later when the victim is able to face what happened—and despite the California law’s built-in protections for an accused, the four Court liberals plus O’Connor made it possible for potential child abusers to escape even being charged.

Police Officers

An unintentionally defective search warrant issued by a federal judge, which turned up no evidence of wrongdoing, resulted in special agents of the Alcohol, Tobacco and Firearms bureau being sued by the targets of the search for violation of their civil rights.

The question for the Supreme Court in Groh v. Ramirez was not merely whether the search was unconstitutional—every appellate judge and justice agreed that it was—but rather whether the ATF agents were entitled to qualified immunity from money damages because of their good-faith belief in the warrant’s validity.

Stevens wrote for the majority, comprised of himself, Souter, Ginsburg, and Breyer. The fifth, swing vote was O’Connor’s. As a result, police officers throughout the country are now potentially liable for large damage awards even when they have done nothing wrong.

Terrorists

Shafik Rasul was captured outside our borders, and was incarcerated at the United States’ Guantanamo naval base. Eventually, he sought habeas corpus relief to challenge his detention. Once again, the liberals (Stevens, Souter, Ginsburg, Breyer) prevailed, with O’Connor providing her invaluable swing vote.

Writing for the five-justice majority in Rasul v. Bush, Stevens noted that: “The [trial] court held, in reliance on our opinion in Johnson v. Eisentrager . . . that ‘aliens detained outside the sovereign territory of the United States [may not] invoke a petition for a writ of habeas corpus’.”

In other words, the federal district court from which enemy combatant Shafik Rasul sought habeas corpus followed Supreme Court precedent, as it was bound to do.

Rasul appealed to the United States Court of Appeals for the District of Columbia Circuit. According to Stevens, “The Court of Appeals affirmed. Reading Eisentrager to hold that ‘the privilege of litigation’ does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign’ . . . it held that the District Court lacked jurisdiction over petitioners’ habeas actions . . . .”

In other words, the Court of Appeals was also bound by the Supreme Court’s Eisentrager precedent.

However, Stevens’ ruling for the Court’s majority—a ruling made possible by O’Connor’s swing vote—was that: “The Court today holds that the habeas corpus statute, 28 U.S.C. Section 2241, extends to aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts.”

Thus did the Supreme Court liberals, aided and abetted by the now-lionized, alleged “mainstream conservative,” O’Connor, open the doors of every federal district court in the United States to the Guantanamo detainees, many of them killers captured on the battlefield and elsewhere around the world, their murderous hands at least figuratively, and sometimes literally, soaked with the blood of Americans, our allies, and innocent civilians.

As Justice Scalia said in dissent, “For this Court to create such a monstrous scheme in time of war, and in frustration of our military commanders’ reliance upon clearly stated prior law, is judicial adventurism of the worst sort.”

O’Connor’s Lost Promise

Kelo v. City of New London, decided at the very end of the Court’s last (2004-2005) Term was based on these facts: “In 2000, the city of New London approved a development plan that . . . was ‘projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.’ * * * In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remained of the property from unwilling owners for just compensation. One beneficiary of the development plan is to be the non-governmental pharmaceutical company, Pfizer, Inc.”

Thus, according to the Court, the question was “whether the City’s development plan serves a ‘public purpose’” [the Constitution’s Eminent Domain Clause says “public use”] sufficient to justify condemnation and necessitate the payment of just compensation.

The majority’s answer was to rule that states and their political subdivisions could take private property from its owners and give it to non-governmental persons and entities if a “public purpose” (like increasing the tax base) was served.

Justice O’Connor, in a snapshot of the kind of justice she could have been for twenty-four years but was not, wrote a rousing dissent:

Today the Court abandons [a] long-held basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded—i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the [majority] does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings for “public use” is to wash out the words “for public use” from the Takings Clause of the Fifth Amendment.

It is O’Connor’s Kelo dissent that proves the case against her—because it, as did some other cases during her tenure on the Court, shows what she was capable of: interpreting the Constitution consistent with its original intent, instead of drifting off on some ill-defined judicial odyssey of her own making.

No matter what the Left’s spin doctors claim, O’Connor was inconsistent in the extreme when it came to her alleged conservative judicial philosophy. A true conservative jurist would not uphold racist affirmative action schemes. A true conservative jurist would not legitimize abortion or immunize sex offenders. A true conservative jurist would never handcuff and victimize the police or treat terrorists like mere criminals, thereby giving them the benefit of due process.

If President Bush intends to keep the promise he made to the people who elected him twice, he must live up to what he told them in his 2000 debate with Al Gore: that he would appoint judges “who will strictly interpret the Constitution and will not use the bench to write social policy.”

If he remains faithful to that promise, he will not replace Sandra Day O’Connor with a Sandra Day O’Connor II.