Justice Sandra Day O’Connor’s new book, The Majesty of the Law, appears at a particularly auspicious moment. As the swing vote on and author of Grutter v. Bollinger, the Supreme Court’s 5-to-4 decision in June upholding the University of Michigan Law School’s affirmative action program, she has shaped the future of minority education in America’s universities for years to come. Also, she is the first female Justice. The book is thus a timely statement by a powerful judge at a time when the judiciary has more power than ever. The situation is also rife with irony. Ever since Ronald Reagan, Republicans have fiercely opposed affirmative action programs for racial minorities and women. They have shed tears over the harm to self-esteem that the beneficiaries of these programs have supposedly suffered, expressed grave concerns over the tensions that affirmative action has fomented between blacks and whites, and denigrated diversity and all the other justifications put forth for these programs.
All that is conveniently forgotten, however, when a little affirmative action will bring a lot of political profit. The most prominent uses of affirmative action in the past twenty-five years were actually by Republicans: the nominations of O’Connor by Reagan and of Clarence Thomas by George H.W. Bush. On any gender- or color-blind list, neither would have appeared. Thomas was an undistinguished federal appellate judge in Washington, and an unimpressive chairman of the Equal Employment Opportunity Commission; O’Connor was an obscure midlevel Arizona state judge and former state legislator with no outstanding reputation among Arizona lawyers. She herself has acknowledged to NPR reporter Nina Totenberg that she was the beneficiary of affirmative action.
Like so many other affirmative-action candidates given an opportunity to show what they can do, Justice O’Connor has proved her merit, becoming an able and important jurist. Now, two decades after her appointment, she has written a book that, she says, is “the result of more than twenty years of thinking about and speaking about some of the major themes in our national history and the principal challenges facing our world today.”
A book by a Supreme Court Justice with so grand a title and that claims to be the product of so much experience and thought should be an important event. One expects insights, reflections, insider discussions of problems and anecdotes about this powerful institution, especially about what it has been like for the first woman to enter the previously all-male sanctum sanctorum of American law.
O’Connor’s book will, alas, be a disappointment to anyone looking to learn something about the Supreme Court that is not already common knowledge. The chapters are short and barely skim the surface. Part 1, on “Life on the Court,” contains little that is new or interesting, except for a chapter on an early fight among those who collected and published the Court’s decisions. The second and third parts consist of some historical vignettes and of profiles of six earlier Justices, including praise for Chief Justices William Howard Taft and Warren Burger for improving the efficiency of the federal court system. Subsequent chapters deal with women and the law, lawyers and courts, and the rule of law in the twenty-first century. There are a few interesting historical vignettes, tributes to some of her predecessors and some sensible ideas about juries and the need for judges to consider what is happening elsewhere in the world. Perhaps not surprisingly, there is nothing about Bush v. Gore (2000), the harsh reaction to which by many lawyers is said to have shocked her. The book catches fire only once, and that is when she discusses women’s issues. Her inability to find a job other than as a legal secretary when she graduated near the top of her Stanford Law School class in 1952 still rankles; she has often talked about it elsewhere, and she mentions it at least twice in the book.
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What is startling about The Majesty of the Law is that readers unacquainted with her record on the Court would conclude that she is one of its liberals, rather than a very conservative judge who, from time to time, drifts away from her colleagues on the right. Over and over again, she praises advances in individual rights that from her first days on the Court, she and her allies–William Rehnquist and, later, Antonin Scalia, Anthony Kennedy and Clarence Thomas–have worked to undermine. It’s true that O’Connor sometimes appears to the casual observer of the Rehnquist Court to be something of a moderate, and her vote in the Michigan Law School case and in a few other cases will certainly reinforce that impression. However, except in a few notable instances, her differences with her fellow conservatives have been over nuance and reasoning.
The gap between what she writes in this book and how she votes can be seen in such matters as access to the courts, civil rights and criminal justice. For example, in a chapter on how the law has evolved, O’Connor writes:
In our system–and our experience has proved its efficacy–it is the citizens themselves, through the courts, who enforce their rights. Enforcement is entrusted not to other government branches, agencies, or commissions that lack a personal stake in the aggrieved party’s freedom but to the people.
Yet, since joining the Court in 1981, she has been a leader in shutting the courthouse door to civil rights litigants and others. One technique is to create restrictive “standing” rules that determine who will be allowed to go to federal court to challenge a violation of the law. One of the leading cases is the decision she wrote in Allen v. Wright (1984), refusing to allow black parents to challenge the IRS’s grant of tax-exempt status to racially discriminatory private schools. Ignoring detailed evidence that the exemption enabled whites to avoid going to school with black students in Memphis and elsewhere, she ruled that the black parents had not shown what she considered constitutional “injury.” But when some white voters challenged majority-black election districts in North Carolina in Shaw v. Reno (1993), Justice O’Connor–again writing for a five-member majority–allowed the suit to go forward even though the plaintiffs did not even claim to have been injured. She has also been a solidly reliable member of the 5-to-4 bloc, led by Rehnquist, that has elevated the long-discredited “king can do no wrong” doctrine of sovereign immunity, which bars suits against government except with its consent. Using this doctrine, they have blocked suits by disabled, elderly and other people whose rights have been violated by state governments.
Equally suspect is O’Connor’s lament about the continuing “great and crying need for legal services for the poor,” and concern about the widespread perception “that justice is reserved for the powerful, the educated, the elite.” In Legal Services Corp. v. Velasquez (2001), perhaps the most important legal services case in years, she dissented from a 5-to-4 ruling striking down a Legal Services Corporation regulation that forbade legal services lawyers to challenge welfare laws as unconstitutional or illegal. In another case that year, she joined a 5-to-4 majority that refused to allow attorneys’ fees, the lifeblood of civil rights laws, to a lawyer who forced West Virginia to repeal a law that violated the federal Americans with Disabilities Act, rather than defend it in court; the repeal gave the clients all they wanted. Ignoring the clear purpose of the law and the plain meaning of the words “prevailing party,” the Supreme Court ruled that unless the lawyer obtained some kind of court judgment, he was not entitled to attorneys’ fees from the state. As Justice Ruth Bader Ginsburg said in her dissent, the decision will “impede access to the court for the less well-heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general.”
Even when poor people do have a lawyer, the level of representation is often miserable. One-third of the people sentenced to death in Illinois, Kentucky and Texas were represented at their capital trials by lawyers who were later disbarred, suspended or convicted of crimes. Courts have even upheld convictions and death sentences in which court-appointed lawyers were drunk or asleep during the trial. In The Majesty of the Law, O’Connor bemoans the decline in lawyer professionalism, but in Strickland v. Washington (1984), she wrote the opinion setting a very lax standard for the competence of counsel, even in death-penalty cases. In only two of the many cases challenging the competence of counsel in capital cases that have come before her since then has she found that the lawyer fell below the Strickland standard.
Death-penalty cases represent merely one aspect of her overall criminal justice record. Here too, despite approving the Warren Court decisions granting rights to the criminally accused, she has consistently undermined these decisions by crafting exceptions to the Miranda rule and voting for other ways for the police to evade these rulings. In Whren v. United States (1996) and Illinois v. Wardlow (2000), for example, she joined two decisions that will make racial profiling by the police easier than ever.
In The Majesty of the Law, O’Connor praises Justice Oliver Wendell Holmes for his efforts to open the federal courts for habeas corpus petitions by state prisoners whose constitutional rights were violated. Yet it is she who has written the most important decisions shutting the federal courts to state prisoners, often for the most minor procedural slips by their lawyers. Filing deadlines missed by a few days, omitted claims, a lawyer’s failure to raise objections or present mitigating circumstances, even prosecution misconduct or plausible claims of innocence–almost nothing will allow a prison inmate to get into federal court unless he can re-create the past and “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” She casually notes that the Court “has tinkered continuously with the finer points of the scope of habeas corpus,” but this “tinkering” has sent many people to their death, some of whom may well have been innocent or at least did not deserve the ultimate penalty. Thanks to DNA, over a hundred death-row inmates have been exonerated so far–from among those still living.
Another glaring inconsistency between what she writes and how she rules is her call for “an educated citizenry,” particularly among the poor. “Although decent public education and job-creation programs strain government resources and taxpayers’ wallets,” she writes, “their absence may engender even greater burdens: crime, homelessness, drugs, violence, alienation, despair. We cannot allow our children to languish.” This kind of argument persuaded the normally conservative Lewis Powell, in Plyler v. Doe (1982), to join a 5-to-4 majority forcing Texas to provide a free public education to the children of illegal aliens. O’Connor, however, dissented. And six years later, in Kadrmas v. Dickinson (1988), she wrote for a 5-to-4 majority allowing North Dakota to deny free public transportation to indigent children whose school district had not been included in a school-district consolidation even though they had to travel sixteen miles to school. Her indifference to the plight of the poor is also reflected in Planned Parenthood v. Casey (1992), the decision that preserved a woman’s right to have an abortion. While the decision kept Roe v. Wade alive, it allowed states and localities to impose waiting periods and other obstacles that fall particularly hard on the poor.
With the exception of the Michigan Law School case, O’Connor’s record on civil rights reveals an even more striking gap between rhetoric and reality. In her chapter on Thurgood Marshall, she praises Brown v. Board of Education and the Civil Rights Act of 1964 for “finally acknowledg[ing] the need to give meaning to the Framers’ promises of equality.” But in cases affecting black people and other racial and ethnic minorities, she has consistently undermined efforts to protect them against discrimination and to remedy the results of our sorry past.
Numbers tell the story best. In her first sixteen years on the Court, O’Connor voted in some sixty-seven cases dealing directly and specifically with the rights of racial and other minorities. Of these, twenty-six cases were decided either unanimously, by 8 to 1, or by 7 to 2, with forty-one sharply split racial decisions. Putting aside for the moment the twenty-six decisions decided by unanimous, 8-to-1 or 7-to-2 votes, where she voted for minorities sixteen times, O’Connor voted against the minority litigant in thirty-nine of the forty-one close cases involving race. These cases dealt with almost every legal issue related to racial justice, including voting rights, employment, school desegregation, affirmative action, the scope of enforcement for federal civil rights statutes, jury selection and capital punishment. In the past five years the Court has taken very few race cases, but the pattern of her voting and opinions is similar.
On gay rights, O’Connor’s record is mixed at best. She helped to make the five-member majority in the infamous Bowers v. Hardwick decision in 1986, allowing gay sex to be made criminal. On the other hand, she joined in the Romer v. Evans (1996) decision striking down the Colorado initiative barring protection for gays against discrimination. But in the landmark Lawrence v. Texas decision in June overturning Bowers and striking down all sodomy laws, contrary to the general opinion, she did not join the majority. In a separate opinion, she voted to annul only the four laws singling out homosexual sex. Had her view carried the day, this would have left in place nine state laws that cover both homosexual and heterosexual sodomy.
There is another criterion for evaluating her record, covering the entire range of cases before the Court during the past twenty years: with which colleague has Justice O’Connor voted most frequently? According to the annual statistical compilation of voting alignments by the Harvard Law Review, it is Rehnquist. In thirteen of those years, Rehnquist was her number-one ally, and in six he was second. No one has ever called Rehnquist a “centrist” in racial matters or any other. O’Connor’s rhetoric and record reflect white America’s attitude toward racial problems: much talk about the need to remedy what she herself has described as “the unhappy persistence of both the practice and the lingering effects of racial discrimination,” but a consistent rejection of concrete steps toward achieving that goal.
The most prominent example is affirmative action. Until the Grutter case she had not approved a single affirmative-action plan designed to help racial minorities, whether in employment, government contracts, education or electoral districting. In 1988, when Anthony Kennedy took his seat and the conservatives finally had a solid majority against racial preferences, she wrote the leading decision overturning the many Burger Court rulings upholding such preferences. In her opinion in City of Richmond v. J.A. Croson Co. (1989), she nailed into the Constitution the principle that an action taken in order to help blacks and other racial minorities is to be viewed with the same skepticism as actions that hurt them: It will be found unconstitutional unless it meets a compelling public need and is narrowly tailored to meet that need. The result was to make it very difficult to grant such preferences in any context. Her future ally in these matters, Justice Thomas, put the underlying principle quite bluntly: “There is a moral [and] constitutional equivalence…between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notions of equality.” In other words, race-conscious measures intended to help minorities beaten down for centuries are as wrong as the racist measures that beat them down.
The Michigan Law School case is the sole racial affirmative-action case to break this pattern. In essence, she adopted the approach taken by Justice Lewis Powell in Regents of University of California v. Bakke (1978), where he laid out a road map for universities to follow in which race could be considered a plus factor so long as other factors like background, personal history and other achievements were also considered in a system that analyzed each application individually. O’Connor’s opinion sets out in detail the major reasons for treating the Michigan Law School case differently from her prior rulings. She noted the enormous support for affirmative action in business, and among colleges and universities, most notably the military service academies. She also stressed the importance of a law degree in obtaining access to positions of leadership in our society.
In the other Michigan case, involving a point system in which minority status was given twenty points out of 150, she reverted to form and voted against the program. It was not individualized enough for her, even though the university claimed that in many cases, the point system served as a screen for further consideration by a faculty committee. Of course, since the college could not know in advance the number of students who would benefit from the extra twenty points, the system could not readily produce the fixed number associated with a quota.
Still, one cannot overstate the importance of her vote and opinion in the law school case. The decision has preserved the opportunity for racial and ethnic minorities to obtain a graduate education and will probably not be too hard to follow. Its impact in other contexts, as in government contracts and employment, is quite uncertain, however, since the case for diversity in both Bakke and Grutter was linked to the academic setting. A court sympathetic to racial minorities would find Grutter useful for these other settings, but neither this Court nor Justice O’Connor has shown such sympathy.
In only one case other than the Michigan Law School case has she voted to uphold a preference–a decision by the Santa Clara, California, Transportation Authority that chose a woman over a man for a road dispatcher’s job. This is not surprising. O’Connor is a very strong advocate for women’s rights, and this is the one area where her book reveals a passion for social justice. The discussion is thoughtful, informed and vigorously argued. Her treatment of the suffrage movement contains vivid, detailed descriptions of the struggles for the right to vote, and of heroines like Elizabeth Cady Stanton, Susan B. Anthony and some less well-known women (at least to this male) like Lorna Lockwood, who became Chief Justice in Arizona in 1965.
O’Connor’s rulings reflect this feminism. Since coming to the Court, she has consistently voted for women’s rights in numerous cases and has expressed considerable judicial skepticism toward laws that disadvantage women. She has persuaded the Court to insist that such laws be struck down unless they are supported by an “exceedingly persuasive justification”; the only abortion regulation that she voted to nullify in the Casey abortion decision was a requirement that a woman notify her husband before getting the abortion. And one of her very rare votes to allow someone to sue a state under a federal law, this term’s decision upholding the Family and Medical Leave Act, came in a decision intended to eliminate employment discrimination against women by requiring paternity as well as maternity leave.
Justice O’Connor has won plaudits for her opinion in the Michigan Law School case, and deservedly so. But that’s hardly enough to sustain the liberal self-image she projects in her memoir. By and large, Ronald Reagan got what he wanted when he nominated O’Connor to the Supreme Court–a judge who is both a woman and a conservative.
