Ronald Reagan was a staunch conservative. When he had the opportunity to name the next Chief Justice, he chose an equally staunch conservative, William Renquist. While he made history by nominating Sandra Day O'Connor to be the first woman on the Supreme Court, he believed he was moving the court in a more conservative direction. "When O'Connor was selected in 1981 . . . virtually no one doubted that her judicial views would be consistent with President Ronald Reagan's political agenda."1 Justice O'Connor, however, gradually moved from the "far right" to a position closer to the "middle", becoming less conservative and more moderate. She "urged a more restrained role for the court,"2 and did not take an "absolutist" view when interpreting law.
For purposes of clarity, I am defining "conservative activism" as overturning previous rulings made by previous courts; "judicial restraint" as adhering more to the idea of stare decisis; "absolutist/absolutism" as a rigid interpretation of law. I also chose specific cases that dealt, in some manner, with either placing restraints on abortion or overturning Roe. Since part of President Reagan's "political agenda" was to do everything possible to end abortion. Justice O'Connor certainly would have been expected to vote in such a manner as to accomplish that objective.
For the first seven years, Sandra Day O'Connor was the dutiful conservative, voting consistently with William Rehnquist until Webster v. Reproductive Health Service as had been expected. In Webster, Chief Justice Rehnquist stated that "Stare decisis is a cornerstone of our legal system, but it has less power in constitutional cases"3 when the only avenue for change is a constitutional amendment or decision of the Supreme Court.
Although Justice O'Connor did concur with with judgment, she stated that the Court had, in fact, "upheld, under our existing precedents,"4 the statute. She also added that the Webster case did not provide sufficient grounds for a reconsidering Roe v. Wade because it did not meet the requirement necessary to exempt it from the "fundamental rule of judicial restraint . . . ."5 Justice Scalia, undeniably the most conservative member of the Court, in concurring with majority opinion also stated that Justice O'Connor's application of judicial restraint to Roe "cannot be taken seriously."6 Justice O'Connor had, in her concurrence, signaled her willingness to disagree with both Rehnquist and Scalia, and the beginning of her move from "Conservative activism" toward "Judicial restraint".
Justice O'Connor's separate dissent against the Rehnquist authored five to four majority opinion in Rust v. Sullivan not only illustrated her continued journey away from the conservative wing, but provided a clear indication of her refusal to apply "absolutist" views to legal interpretations. She stated that Court "must act with 'great gravity and delicacy' when telling another branch that its actions are absolutely prohibited absent constitutional amendment,"7 and that "we should not tell Congress what it cannot do before it has chosen to do it."8
In Planned Parenthood of Southeastern Pennsylvania v. Casey, which would have overturned Roe, Justice O'Connor, along with Justices Kennedy and Souter, stated that "Liberty finds no refuge
in a jurisprudence of doubt."9 The implications being that laws should not be overturned without serious consideration and only for compelling reasons. The justices ruled that Roe v. Wade should be "retained and once again reaffirmed"10 based on their consideration of "the fundamental constitutional questions resolved by Roe, principles of institutional integrity and the rule of stare decisis."11
The Justices also wrote that even though arguments for overturning Roe were compelling, and the justices themselves might have "reservations . . . in affirming the central holding of Roe"12 those were "outweighed by the explication of individual liberty we have given combined with the force of stare decisis."13 The Justices did acknowledge that stare decisis certainly does not applicable in every situation; however, "a series of prudential and pragmatic considerations"14 must be applied. In their opinion, Roe did not fall into that category.
Chief Justice Rehnquist responded, in a dissent joined by Justices White, Scalia, and Thomas, commented that Justices O'Connor, Kennedy and Souter were using a "newly-minted variation on stare decisis,"15 not the traditional approach which clearly provided the means necessary to overturn Roe.
With regard to applying an "absolutist" view to interpreting the law, the Justices wrote that "Liberty must not be extinguished for want of a line that is clear."16 Their refusal to "draw a clear line" made it impossible for them to uphold a state law which did, in fact, draw that line. Justice Scalia, in his dissent, stated that he did not believe the right to an abortion was "a liberty protected by the Constitution of the United States"17 because "the Constitution say absolutely nothing about it."18
Sandra Day O'Connor's political ideology was and still conservative. Her move away from the Rehnquist/Scalia right wing of the Court reflected not so much a change in her political point of view but in her judicial approach, and her attempt to keep her personal political opinions from influencing her decisions.
She had been expected to aid the conservative quest to overturn Roe v. Wade. That she did not demonstrates her ability to separate the personal from the professional. While she personally opposes abortion, she steadfastly refused to support legislation which draws lines so rigidly that there is no leeway for "extraordinary circumstances".
Justice O'Connor also was expected to help the Rehnquist Court overturn the liberal rulings of previous Courts. However, her respect for stare decisis and her concern with overturning previous courts' decisions simply because they reflect a different outlook led her to embrace the more "liberal" notion of "judicial restraint" as opposed to "conservative activism".
She can be described as having been a "moderate conservative" because she searched for the common ground between the "right" and "left" extremes. She, as do the other "moderates" on the Court, reflect those ideals expressed by the Constitution's creators: that people would have to find common ground to accomplish their goals, making it impossible for any one group to gain control and impose its will.
Endnotes
- Sue Davis, "The voice of Sandra Day O'Connor". Judicature. Vol. 77, No. 3. (November-December 1993). 134.
- Richard A. Codray and James T. Vradelis. "The Emerging Jurisprudence of Sandra Day O'Connor." The university of Chicago Law Review. Vol. 52 (1985). 392.
- James C. Foster and Susan M. Leeson, eds. Constitutional Law Cases in Context (New Jersey: Prentice Hall, 1998) 852.
- Ibid., 853.
- Ibid.
- Ibid., 854.
- Ibid., 865.
- Ibid.
- Ibid., 871
- Ibid.
- Ibid.
- Ibid., 872
- Ibid.
- Ibid., 873.
- Ibid., 876.
- Ibid., 873
- Ibid., 878
- Ibid.