USA: The O'Connor Factor - Justice Plays Pivotal Role on High Court

When word got out that Supreme Court Justice Sandra Day O'Connor would be giving a public lecture last fall in Lincoln, Neb., 500 people snapped up every available seat, leaving 100 others to be turned away. The University of Nebraska gave her a medal. Female law students presented a corsage.

 "If it hadn't been for you paving the road, we wouldn't be here today," Lisa Rasmussen told O'Connor, according to the Daily Nebraskan.

 More than two decades after President Ronald Reagan made her the 1st woman on the Supreme Court, O'Connor, 71, may be a bigger celebrity -- and a more powerful influence on American law and society -- than ever before.

 She has weathered what she has called the "difficult" 2000 election case in which she was one of five Republican-appointed justices to join a much-criticized ruling that sealed President Bush's victory. She has added her voice to those expressing concern that innocent people may be sentenced to death. Favorable reviews are coming in for her much- publicized new memoir, co-written with her brother, H. Alan Day, about growing up on a remote desert ranch during the 1930s and '40s.

 And on the most contentious social issues facing American society, she continues to cast what is frequently the deciding vote on a 9-member court often split between liberals and conservatives.

 On Wednesday, the court hears oral arguments on 2 such issues -- state-funded vouchers for private and parochial school tuition, and a possible ban on the death penalty for mentally retarded capital offenders. And once again, attorneys for both sides will be pitching much of their argument to the tall, silver-haired woman sitting just to Chief Justice William H. Rehnquist's left.

 So pivotal -- and familiar -- is O'Connor's role that it has become difficult to imagine the court without her, despite rumors, denied by the justice, that she may retire soon. Lately speculation has run in the opposite direction -- that O'Connor could ascend to chief justice if Rehnquist, 77, steps down -- a scenario she also dismisses.

 O'Connor's power has been accumulated not by asserting an ironclad doctrine for others to follow, but by remaining as noncommittal as possible: Time and again, she has signed on to narrow rulings crafted according to the facts of a particular case, leaving open the option of another incremental holding later on.

 "The rule of law must also be flexible enough to adapt to different circumstances," she told her Nebraska audience, expressing a precept she had articulated many times in her opinions.

 "Hers is the power of the median voter," said University of California at Los Angeles law professor Eugene Volokh, a former O'Connor law clerk. "Lawyers target her for the same reason both sides in a political campaign target the center."

 The question hovering over O'Connor's 21-year career on the court, though, is whether her approach is too much like the political art of compromise she once practiced as majority leader of the Arizona state Senate.

 By providing only sketchy constitutional guidance to legislatures and lower courts, some lawyers, legal academics and judges say, her restrained jurisprudence lays the basis for legal instability that ultimately must be sorted out by the Supreme Court -- and, in many cases, by O'Connor herself.

 O'Connor's fellow justice, Antonin Scalia, has published opinions blasting her mode of reasoning, including a 1988 gibe at her "Solomonic" answer to a death penalty case: "Solomon," Scalia wrote, "was not subject to the constitutional constraints of the judicial department of a national government in a federal, democratic system."

 O'Connor's admirers describe her method as "judicial minimalism."

 "Clear rules are better; they make the court's own judgments more transparent," Volokh said. "But if a justice is not persuaded the Constitution demands a clear rule, it's her duty to vote for a more fact-sensitive one."

 O'Connor, a lifelong Republican, votes more than 80 percent of the time with Rehnquist, a Nixon appointee. She has joined him, Scalia and other conservatives in the court's recent effort to bolster states' rights.

 But on social issues, she has muted the court's rightward tendencies. Most famously, she voted to uphold the right to abortion enshrined in Roe v. Wade, co-writing the 1992 opinion that barred state laws that impose an "undue burden" on the right to choose. In 2000, she provided the 5th vote for a ruling that struck down Nebraska's ban on what opponents call "partial birth" abortions.

 Abortion, she recently told NBC's Katie Couric, "is an issue about which people feel passionately, and I'm very much aware of that when we have a case in that area."

 Certainly, there is little evidence of ideological fervor in O'Connor's personal story. Her childhood was spent among some of the last real cowboys in the West, on the 300-square-mile Lazy B Ranch. Straddling Arizona and New Mexico, the Lazy B had no electricity or running water; as depicted in her memoir, it was a place where individual adaptability and common sense were at a premium, and the social changes linked to the New Deal and World War II made little direct impact.

 Graduating 3rd in her class (Rehnquist was 1st) from Stanford Law School in 1952, O'Connor was stunned by law firms' refusal to hire her, but made a career in local government and the Arizona Republican Party. She was appointed to the state Senate in 1969, became majority leader in 1972 and later ran successfully for state trial judge before being elevated to the state appeals court by a Democrat, then-Gov. Bruce Babbitt in 1979.

 When Reagan offered her the Supreme Court job in 1981, antiabortion groups tried to derail her nomination, citing her opposition as a state senator to certain laws restricting abortion. O'Connor herself has admitted she felt uncertain about her own modest judicial experience.

 But she was fortified by lessons learned on the Lazy B. It gave her, she recently told C-SPAN interviewer Brain Lamb, "a certain amount of self-confidence in your ability to work things out and not be afraid to tackle something."

 Today she regularly recruits law clerks who have served both liberal and conservative lower-court judges, relying on them for detailed briefings, oral and written, on each case -- and occasionally treating them to her homemade Tex-Mex cuisine.

 Both cases before the court on Wednesday show how O'Connor's past rulings set the stage for future cases in which she again plays the potentially deciding role.

 In the school voucher case, opponents of the program will try to persuade the court that, as practiced in Cleveland, the voucher subsidy gives families no real choice but to spend government money at religious schools, an issue framed in O'Connor's past opinions on the church-state balance.

 In the death penalty case, Daryl Atkins, convicted of murder in Virginia, asserts that he has an IQ of 65, which qualifies him as moderately retarded under current psychiatric guidelines.

 His attorneys argue that a national consensus has formed against the death penalty for persons with very limited intellectual abilities, so Atkins's execution would be "cruel and unusual punishment" prohibited by the Eighth Amendment.

 In 1989, a Texas death-row inmate, Johnny Paul Penry, sought and was denied such a ruling from the Supreme Court. O'Connor's role was decisive.

 Wrestling with Penry's claim that mentally retarded persons are less able to reason and hence less culpable for their crimes than others, O'Connor wrote that states must give juries a genuine chance to consider mental retardation as a factor weighing against the death penalty. It was an argument repeated by Atkins.

 This section of O'Connor's opinion, which ordered a new trial for Penry, was joined by liberals such as the late Justices William J. Brennan Jr., Thurgood Marshall and Harry A. Blackmun and John Paul Stevens, who is still on the court.

 O'Connor, however, concluded that it was not yet clear that all mentally retarded people lacked the reasoning ability ever to warrant capital punishment. And there was insufficient evidence of a national consensus against executing them, she wrote. Only two states with the death penalty had outlawed it.

 This portion of her opinion was joined by conservatives Rehnquist, Scalia, Anthony M. Kennedy and Byron R. White, who has since retired.

 Still, O'Connor left the door open. A national consensus, she wrote, "may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely."

 "That day has arrived," Atkins's attorneys argue in their brief for the case to be argued Wednesday. They noted that 18 of the 38 states that permit capital punishment now have laws outlawing death sentences for the mentally retarded. When you add the 12 states that do not allow capital punishment at all, they argue, 30 states -- 60 % of the total -- plus the federal government, forbid the death penalty for retarded offenders.

 Is 60 % enough to make for a national consensus? O'Connor's past opinions are suggestive but, characteristically, not definitive on how she might rule.

 In 1988, when the court voted to strike down the death penalty for 15-year-old murderers, O'Connor supplied the 5th vote -- but did so for reasons that were all her own.

 In a separate opinion, she noted that 32 of 50 states -- 64 % -- either had no death penalty or had limited it to perpetrators 16 or older. This, she said, created a strong presumption that a national consensus against executing those younger than 16 existed. But more state legislation would be needed to know for sure, because a large minority of states that set no minimum age for the death penalty appeared to permit executing 15-year-olds.

 O'Connor explained her vote as limited only to situations in which states had specified no minimum age for death penalty.

 Just a year later, she joined four conservatives in holding that executions for 16- and 17-year-old perpetrators were constitutional. There, she assented to a national-consensus calculus that focused only on the rules in the 37 states that had the death penalty at the time, noting that "a majority of states authorizing capital punishment permit it for defendants 16 and above." And today, a majority of death penalty states still allow sentencing retarded offenders to death.

 5 of the death penalty states that have banned capital punishment for the retarded passed their laws in the last year, after the Supreme Court's surprising announcement in March 2001 that it would revisit the 1989 Penry ruling in the case of North Carolina death row inmate Ernest McCarver.

 Legal analysts say that the mere fact that the court agreed to reconsider the subject suggests that change is afoot at the court. O'Connor herself has made 2 public statements -- to a Minnesota women's lawyers' group in July and again on her October visit to Nebraska -- that seemed to capture national anxiety about administration of the death penalty.

 "More often than we want to recognize," she said in Nebraska, "some innocent defendants have been convicted and sentenced to death."