Establishing Her Independence

By Richard Lacayo

During the nearly five years since she took her place on the high bench, Justice Sandra Day O'Connor has provided a reasonably dependable third vote for the U.S. Supreme Court's conservative wing. In a number of crucial cases, however, O'Connor has begun to split from her usual allies, Chief Justice Warren Burger and William Rehnquist, and has sometimes cast the decisive vote that yields a liberal result. Says Michael McDonald, general counsel of the conservative American Legal Foundation: "I wonder if she is traveling the route blazed by Justice Blackmun." Harry Blackmun, who moved from a close identification with the Chief Justice to join the court's shifting centrists, has also noted O'Connor's passage. "In certain areas," he told a meeting of federal judges last summer, "she is becoming somewhat independent and her own woman."

An intriguing example of O'Connor's independence came last week. Normally a strong supporter of police and prosecutors, she joined in a pair of significant rulings that strengthened the rights of black defendants (see box). One week earlier she astonished some court watchers by writing the majority opinion in a 5-to-4 libel decision requiring that in cases involving public concerns, private individuals must prove that damaging press assertions about them are false.

With many of the most difficult cases of this term still pending, it is too soon to measure clearly how much she is setting herself apart from the other conservatives. But in the words of former Solicitor General Rex Lee, who has known O'Connor since both practiced law in Arizona, "After four or five years, many members of the court feel a greater sense of self-confidence and assert themselves more. We're seeing evidence of that in her now."

One example: even when she agrees with the majority, she increasingly carves out her own position. She wrote eleven concurrences in the court's last term, second only to William Brennan's 14. Some of those helped establish her influence on the thinking of her fellow Justices--for example, in constitutional questions regarding religion. Thus two years ago, she joined a 5-to-4 majority upholding the constitutionality of a town-sponsored Nativity scene in Rhode Island. With reasoning that Yale Law Professor Paul Gewirtz calls "extremely elegant," she sought in a concurring opinion to draw a line between government actions that accommodate religion and those that endorse it. Her thinking was later used by Justice John Paul Stevens to help support the majority's view in another religion case.

Sometimes O'Connor has teamed with Justices to her left, apparently because a case involved two competing principles that both appealed to her as a conservative. In March, for instance, weighing the demands of military authority against the exercise of religious belief, she rejected Rehnquist's majority opinion that the Air Force could enforce a dress code prohibiting religious headgear, in this case a yarmulke. Says Bruce Fein of the American Enterprise Institute: "She just wanted a little more military justification." On the same day, her close attention to procedural correctness led to another disappointment for conservatives. In a 5-to-4 decision involving the legitimacy of a voluntary-school-prayer group in Pennsylvania, O'Connor joined with liberals to hold that the court could not examine the issues because the school-board member who appealed the case had no legal standing to do so.

Her forays into unexpected territory do not, however, represent a lunge across the political spectrum. "There is no possibility of her being anything other than a Reagan conservative," says John Frank, a Phoenix lawyer who has closely followed O'Connor's career. "The Administration knew what it wanted + and got it." But O'Connor's growing assurance as a Justice means that conservatives cannot confidently presume a three-vote base on which to start building a majority result.

With reporting by Anne Constable/Washington