O'Connor to Retire From Supreme Court

Practical Voice for Partisan Times

By E. J. Dionne Jr.

Saturday, July 2, 2005; Page A29

Barely an hour after Justice Sandra Day O'Connor had announced her resignation from the Supreme Court yesterday, the goal of all liberals and moderates was clear: To replace the retiring justice, President Bush should name someone just like her. From Democratic quarters, you could almost hear the orchestrated shouts of "We love Sandra."

It's odd that O'Connor, in an instant, became a liberal hero. In many ways, she is the most profoundly conservative justice on the court. Cass Sunstein, a law professor at the University of Chicago, noted that she is a particular kind of conservative, an implicit follower of the philosopher Edmund Burke, "someone who likes tradition, respects incremental change, doesn't like revolution."


But the Burkean disposition is not what animates the political movement that now flies under the colors of conservatism. The judicial right is seeking anything but continuity. It wants a revolution of its own -- or perhaps a counterrevolution. And unlike O'Connor, who liked her decisions very particular, the new conservatives love sweeping abstractions. To them, a case-by-case approach is as unprincipled as it is unexciting...

In the days of far-reaching decisions by the liberal Warren court, this measured approach might have identified O'Connor as the conservative she actually is. But all the sweep now is on the right. There is not simply an eagerness to strike down precedent, notably Roe v. Wade . There is also -- in what has come to be known as the movement for "the Constitution in Exile" -- a desire to roll back most of the developments in jurisprudence since the early 1930s. This movement would strike down the regulatory state created during and since the New Deal.

The danger for moderates and liberals is not the end of liberal judicial activism -- those days are over -- but the onset of a new era of conservative judicial activism. You'll never know it in the commotion of the coming months, but the O'Connor succession fight is not primarily over Roe . The real battle is over whether new conservative judges will roll back the ability of elected officials to legislate in areas such as affirmative action, environmental regulation, campaign finance, and disability and labor rights.

And your source KW?

Cases in Which Sandra Day O'Connor Cast the Decisive Vote

July 1, 2005
KEY RULINGS
Sandra Day O'Connor

O'Connor Replacement Could Roll Back Vital Civil Liberties Protections

Sandra Day O'Connor has been the deciding vote in many important Supreme Court decisions affecting civil rights, environmental protection, personal privacy, voting rights, protection against discrimination and more. If she is replaced by someone who doesn't share her fair and impartial perspective, these are among the key 5-4 decisions in danger of being overturned:

Grutter v. Bollinger (2003) affirmed the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and promote racial diversity on campus.

Alaska Department of Environmental Conservation v. EPA (2004) said the Environmental Protection Agency could step in and take action to reduce air pollution under the Clean Air Act when a state conservation agency fails to act.

Rush Prudential HMO, Inc. v. Moran (2002) upheld state laws giving people the right to a second doctor's opinion if their HMOs tried to deny them treatment.

Hunt v. Cromartie (2001) affirmed the right of state legislators to take race into account to secure minority voting rights in redistricting.

Tennessee v. Lane (2004) upheld the constitutionality of Title II of the Americans with Disabilities Act and required that courtrooms be physically accessible to the disabled.

Hibbs v. Winn (2004) subjected discriminatory and unconstitutional state tax laws to review by the federal judiciary.

Zadvydas v. Davis (2001) told the government it could not indefinitely detain an immigrant who was under final order of removal even if no other country would accept that person.

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) affirmed that civil rights laws apply to associations regulating interscholastic sports.

Lee v. Weisman (1992) continued the tradition of government neutrality toward religion, finding that government-sponsored prayer is unacceptable at graduations and other public school events.

Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.

Morse v. Republican Party of Virginia PDF (1996) said key anti-discrimination provisions of the Voting Rights Act apply to political conventions that choose party candidates.

Federal Election Commission v. Colorado Republican Federal Campaign Committee PDF (2001) upheld laws that limit political party expenditures that are coordinated with a candidate and seek to evade campaign contribution limits.

McConnell v. Federal Election Commission PDF (2003) upheld most of the landmark McCain-Feingold campaign finance law, including its ban on political parties' use of unlimited soft money contributions.

Stenberg v. Carhart (2000) overturned a state ban on so-called partial birth abortion, legal analysis

McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses. Some of the strongest language came from Justice Sandra Day O'Connor's concurrence with the 5-4 majority, in which she said: "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

"When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders," Justice O'Connor wrote, "it encroaches upon the individual's decision about whether and how to worship…Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs."

Justice O'Connor's words echo her opinion in Lynch v. Donnelly , in which she observed that state endorsement of religion "sends a message to non-adherents that they are outsiders, not full members of the political community."

OTHER NOTABLE RULINGS

RELIGIOUS LIBERTY
ACLU Urges High Court to Reject Texas School's "One Vote, One Prayer" Policy at Football Games
Justice Sandra Day O'Connor, a Reagan appointee, wrote that state endorsement of religion, "sends a message to non-adherents that they are outsiders, not full members of the political community."

GAY EQUALITY
U.S. Supreme Court Limits Government Ability to Interfere with Parents' Child-Rearing Decisions
The ruling included a four-justice plurality, authored by Justice Sandra Day O'Connor, as well as two separate concurring opinions

Supreme Court Strikes Down Texas Law Against Same-Sex "Sodomy," Signaling New Era for Gay Rights was a civil rights triumph and a watershed in the history of gay rights in this country. Under the Texas sodomy statute that the Court has now declared unconstitutional, only same-sex couples faced imprisonment for private acts of sexual intimacy. In a broadly worded decision expounding on the meaning of personal liberty under the Constitution, the Court both expanded the privacy rights of all Americans and promoted the right of lesbians and gay men to equal treatment under the law.

FREE SPEECH
ACLU Claims Free Speech Victory in Texas; Displaying Political Posters is Now Legal
In 1994, the U.S. Supreme Court noted that residential signs have long been an important and distinct form of expression that enjoys the highest level of constitutional protection. At that time, Justice Sandra Day O'Connor wrote "with rare exceptions, content discrimination in regulations on the speech of private citizens on private property is presumptively impermissible."

WAR ON TERROR
Supreme Court Says Courts Can Review Bush Administration Actions in Terrorism Fight
Writing for an 8-1 majority in the case of American-born detainee Yaser Esam Hamdi, Justice Sandra Day O'Connor said the Court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Four of the Justices (Souter, Ginsburg, Scalia and Stevens) said that they would go further and order Hamdi's immediate release, and Justice Souter in particular said that holding Hamdi incommunicado is a violation of the Geneva Conventions.

RACIAL EQUALITY
Two Supreme Court Rulings Expand Police Powers and Limit Civil Rights Enforcement
In the dissenting opinion Justice Sandra Day O'Connor wrote, "as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual."

ACLU Applauds High Court Decision Permitting Race As a Factor in Drawing Congressional Districts
The key to this case was Justice Sandra Day O'Connor, who had previously ruled against the district and whose vote tipped the balance in favor of the district.

DRUG POLICY
Setting Limits on Drug War Tactics, High Court Rejects Drug Roadblocks
In an opinion written for the 6-3 majority, Justice Sandra Day O'Connor said that the reasoning behind the Indianapolis roadblocks -- chiefly that the benefit to the public outweighs the inconvenience -- cannot justify the use of unconstitutional methods by the police.

"If this case were to rest on such a high level of generality, there would be little check on the authorities' ability to construct roadblocks for almost any conceivable law enforcement purpose,'' the opinion said.

Several witnesses have stated under oath that Justice Rehnquist harassed minority voters during the early 1960's. Justice Rehnquist denies he harassed minority voters. James Brosnahan, a former assistant U.S. attorney in Phoenix from 1961 to 1963, said in a statement delivered to Congress that on election day in 1962, he and several assistant U.S. attorneys were assigned the task of receiving complaints alleging illegal interference with the voting process. The group received several complaints from precincts in South Phoenix. The precincts were predominately black and Hispanic. The complaints involved Justice Rehnquist. Broshnahan visited one of the precincts. When he arrived he saw Justice Rehnquist. There were reports that poll watchers had to physically push Rehnquist out of polling places to stop him from interfering with the voting rights of the minority citizens.

A brief thought -- I don't actually believe it, but it was cheering for the minute that I did... maybe O'Connor believes that the next president will be a Democrat/ liberal, and that with the inevitable delays in the confirmation process for her successor, now is about her last chance to have herself replaced with a conservative for the next 10 years or so. (Delays + at least two terms of the next president.) And while she seems to be a hale and hearty 75-y-o, she might not want to hang on 'til 85.

As I said, I don't really believe it.

Well the Democrat memo I cited was pretty recent and pertains to the immediate issue. And you are still ignoring it.

No question that suppressing the black vote is Republican tradition stretching back years.