One fact sums up Justice Sandra Day O'Connor's pivotal role on the Supreme Court and the enormity of her resignation -- she alone was in the majority of every one of the court's 13 5-4 decisions this last term.
The Democrats' genuine sorrow in seeing O'Connor leave 24 years after being picked by President Reagan is a tribute to her moderating influence. Sen. Harry Reid of Nevada, the minority leader, urged President Bush on Friday to appoint someone else "like O'Connor" to the court.
For The Record
Los Angeles Times Thursday July 07, 2005 Home Edition California Part B Page 12 Editorial Pages Desk 3 inches; 100 words Type of Material: Correction
Retiring justice -- An editorial Saturday on Justice Sandra Day O'Connor said the Supreme Court in its last session had 13 5-4 decisions and that O'Connor had been in the majority on all of them. The number of 5-4 decisions during the court's 2004-2005 session exceeded 13 (the number is up to 24, counting 5-3 decisions with Chief Justice William H. Rehnquist not voting, and other vagaries). O'Connor sided with the minority in a number of these 5-4 splits. To read her dissenting opinions in two such cases, involving eminent domain and the constitutionality of executing minors, go to www.latimes.com/oconnor.
O'Connor, the first woman to serve on the nation's highest court, is an inspiration not only to female lawyers but to pioneers in other fields. She is in other ways a throwback -- a former politician on a court that is no longer that welcoming to politicians. Among current justices, O'Connor is the only one who served in a legislature, back in Arizona.
That political experience helped shape O'Connor's jurisprudence, and the fact that she rarely seemed intent on building something as haughty-sounding as a "jurisprudence." O'Connor is less interested in all-encompassing principles than in the case before her, and its practical, nitty-gritty facts.
The result could be maddening to lower courts and scholars looking for clear guidance. Some areas of the law, especially church-state relations and voting rights, remain muddled because O'Connor's answer to every constitutional question seemed to be a cautious "depends." In another area of the law, O'Connor upheld the University of Michigan Law School's affirmative action program but voted to strike down the same university's undergraduate affirmative action plan because they differed in their details.
The positive side of O'Connor's pragmatic approach to judging is that it applied a brake to the ideologically driven conservative counterrevolution. No one engaged with real-world facts, for instance, could allow Roe vs. Wade to be overturned.
In affirming the Michigan law school's program, O'Connor did indulge in soaring rhetoric: "Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized."
O'Connor's own biography no doubt contributed to her tolerance. She graduated third in her Stanford Law School class but could not get hired by a major law firm. Gibson, Dunn & Crutcher, the Los Angeles blue-chip firm, insultingly offered her a secretarial job.
Born in West Texas and raised on an Arizona ranch, she espoused a Western version of conservatism tinged with libertarianism. She voted to strike down state sodomy laws and wrote the opinion chastising President Bush for thinking he could indefinitely detain people without judicial oversight in the war on terrorism. Her levelheaded common sense on the bench will be missed.