The nicest thing that can be said about Sandra Day O’Connor is that she was often correct. What cannot be said is that she was consistently so.
O’Connor was correct in Kelo v. New London, which turned on whether a city could force a homeowner to sell his home for the purposes of turning the land over to a private developer. “To reason, as the Court does,” she wrote in the primary dissent, “that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings ‘for public use’ is to wash out any distinction between private and public use of property — and thereby effectively to delete the words ‘for public use’ from the Takings Clause of the Fifth Amendment.” But Kelo was not the first time the Takings Clause — “nor shall private property be taken for public use, without just compensation” — had come up, and O’Connor was not always so fastidious a defender of property rights. In Tahoe-Sierra v. Tahoe Regional Planning Agency, she joined John Paul Stevens’s majority opinion arguing that prohibiting development on private land for six years did not constitute a taking.
O’Connor was likewise correct to join the majority in Gratz v. Bollinger, which struck down the scheme of racial preferences used to select applicants to the (public) University of Michigan. But she turned around and wrote the majority opinion upholding the University of Michigan Law School’s race-based admission policy on the same day in Grutter v. Bollinger. (She argued in her Gratz concurrence that the details of the two policies were enough to make a difference.) Infamously, her opinion in Grutter said the Court “expect[s] that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” In a withering opinion, concurring in part and dissenting in part, Clarence Thomas wrote that “While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now.”
O’Connor’s best known ups and downs, of course, were in her abortion jurisprudence. She was part of the majority that has refused to strike down Roe v. Wade, but wrote for the majority in Planned Parenthood v. Casey that “[o]nly where state regulation imposes an undue burden on a woman’s ability to make this decision [to abort or not]” is the regulation unconstitutional. Thus O’Connor concurred with the majority to uphold a ban on state funding of most abortions in Webster v. Reproductive Health Services, yet also concurred with the ruling in Stenberg v. Carhart, which struck down Nebraska’s law against partial-birth abortion, on the grounds that it lacked an exception for the “health of the mother” (an exception that would knock the teeth out of the law). As Antonin Scalia wrote, in his Casey dissent, of the “undue burden” standard, “the concept has no principled or coherent legal basis.”
President Bush promised in 2000 and 2004 to nominate Justices like Thomas and Scalia. If he does so, the only cases mentioned here that will be affected are Grutter and Stenberg. (There are still five votes for Roe without O’Connor.) That the rumor mill on potential nominees has even mentioned Alberto Gonzales, who would uphold both Roe and Grutter (and probably would have parted with O’Connor on Gratz), is deeply troubling, and would reek of unprincipled cronyism. The thought should be put out of the President’s mind — and not just for this slot on the Court, but for all of them.
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