Thursday, November 16, 2006

Justice O'Connor and the Roberts Court

Last week's oral argument in Gonzales v. Carhart reignited speculation about the effect Justice Sandra Day O'Connor's departure will have on the Supreme Court. In an effort to quantify that effect, I've examined all cases decided since 1994 (when the Rehnquist Court assumed its final composition) that generated a liberal outcome and were decided by a 5 to 4 margin in which Justice O’Connor voted with the majority. These cases presumably represent the issue areas in which Justice O’Connor’s retirement is likely to have the most impact.

Between 1994 and 2005, the Rehnquist Court issued 184 5 to 4 decisions. Of these, 79 generated liberal outcomes. Justice O'Connor voted with the majority in 44 of these cases. However, twelve were cases in which Justice Scalia, Thomas, Rehnquist or Kennedy also voted with the majority. It is the remaining thirty-two cases – the 5 to 4 cases in which Justice O’Connor was the sole member of the Rehnquist Court’s "conservative bloc" to vote with that Court’s more liberal justices - that I examined here.

These cases cluster in two issue areas: civil rights (11 cases) and criminal procedure (10 cases). An additional 3 cases involved the First Amendment. The remainder were divided almost evenly between economic activity, federalism, due process, privacy, attorneys, and judicial power cases. Cleary then, it is the Court’s criminal procedure and civil rights precedents that are most vulnerable to revision following Justice O’Connor’s retirement.

The criminal procedure cases in which Justice O’Connor cast the key fifth vote consisted primarily of death penalty cases in which Justice O’Connor voted with the Rehnquist Court’s more liberal justices to permit a prisoner to bring a habeas petition. Other cases in this area include decisions upholding the rights of prisoners, immigrants or criminal suspects in regard to the use of confessions (Gray v. Maryland); detention (Zadvydas v. Davis); parole (Kelly v. South Carolina); and probation (Alabama v. Shelton).

The civil rights cases in which Justice O’Connor cast the key fifth vote to reach a liberal outcome also are interesting, albeit a bit more varied. Many of these cases involve the ability of plaintiffs to sue under various federal civil rights statutes. For example, Justice O’Connor cast the deciding vote upholding a plaintiff’s right to sue in Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ. (upholding a plaintiff’s right to sue under Title XI); West v.Gibson (upholding a plaintiff’s right to sue under Title VII) and Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (upholding a plaintiff’s right to sue under Section 1983). An additional three of these civil rights cases involved the ability of Native American plaintiffs to sue under federal treaties.

An additional issue area likely to be influenced by Justice O’Connor’s retirement is the regulation of elections. Two of the civil rights cases listed above involved election law issues, as did two of the First Amendment cases. In Morse v. Republican Party of Virginia , Justice O’Connor voted with the Rehnquist Court’s more liberal justices to subject a newly imposed filing fee requirement to scrutiny under Section 5 of the Voting Rights Act. In Easley v. Cromartie, she voted with the more liberal justices to sustain the creation of a majority-minority legislative district against a claim that the district constituted an unconstitutional racial gerrymander. In the two First Amendment cases, Federal Election Com'n v. Colorado Republican Federal Campaign and McConnell v. Federal Election Com’n, Justice O’Connor again voted with the Rehnquist Court’s more liberal justices to uphold certain campaign finance regulations against First Amendment claims.

Justice O’Connor’s role in the 5 to 4, liberal-leaning federalism cases also is interesting. The two federalism cases in which Justice O’Connor voted with the Rehnquist Court’s more liberal justices were Tennessee v. Lane (allowing Congress to authorize suites against states in federal court for certain violations of the Americans with Disabilities Act) and Hibbs v. Winn (allowing federal court resolution of certain state tax contests). Each of these cases involve issues at the edge of the Rehnquist Court’s so-called “federalist revolution”. Because Justice O’Connor was frequently a reliable vote for the conservative side in federalism cases, her defection in these cases indicates that she was responsible for limiting the reach of the Rehnquist Court’s federalism jurisprudence.

Finally – and perhaps most interestingly - Justice O’Connor provided the decisive fifth vote in only three of the liberal cases decided by the Rehnquist Court involving sharply contested social issues. In Stenberg v. Carhart , she voted with the majority to strike down Nebraska’s late term abortion ban; in Grutter v. Bollinger she voted with the majority to uphold the University of Michigan Law School’s affirmative action program; and in McCreary County, Ky v. American Civil Liberties Union of Ky. she voted to strike down as a violation of the Establishment Clause a display of the Ten Commandments in a Kentucky courthouse. While these cases are certainly among those responsible for Justice O’Connor’s reputation as the Rehnquist Court’s quintessential moderate, it is truly notable that they are so few in number.

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