Swing Vote on the Constitution

THE SUPREME COURT IS ON THE BENCH, hearing argument on whether it should overturn Roe v. Wade. The chanting of the crowds outside does not penetrate here. The lawyer at the lectern is defending Roe’s recognition of an absolute right to abort fetal life before viability. Through history, he says, "this was always the line chosen, whether it was called quickening or viability, there is little difference, timewise."

Justice Sandra Day O’Connor leans forward in her chair. "Well, there is a difference, is there not, in those two?" she asks. At common law, she notes, quickening was "when the fetus was first felt by the mother."

"A kick, yes, absolutely, approximately two or three weeks before what we would consider viability today," responds the lawyer, Frank Susman of St. Louis.

And the only justice who has ever felt that kick settles back in her chair, betraying no clue how she will vote.

With the Supreme Court poised between moderate pragmatism and conservative counterrevolution, Justice O’Connor, 59, has become its ideological center of gravity. She is strategically situated to channel the course of constitutional law-not only on abortion, but also on affirmative action, sex discrimination, church-state issues, use of the death penalty for teenage killers, and more.

How long she will retain this position is uncertain. Since her mastectomy last October 21, rumors have circulated persistently that she may leave the Court this summer. The rumors have been fanned by Justice O’Connor’s refusal to provide details concerning her condition and treatment. But in response to a letter from this writer inquiring about her health and her plans, the Court’s public information office, speaking for O’Connor, said on May 8, "The prognosis for total recovery is excellent. The tests are all negative, and she has no plans to leave the Court." She has completed her postoperative chemotherapy, has rejoined the 8 A.M. exercise class that she organized for women at the Court, and has hired law clerks for each of the two next years.

For now, at least, she is the one who determines which side wins the biggest 5-to-4 decisions and how broadly they are written. She is the most moderate member of the new conservative majority, the closest thing we have, for better or for worse, to a living oracle of the evolving Constitution. To divine the direction of the law, watch what she does.

Look for a meticulous balancing act rather than philosophical conviction, for microscopically fine distinctions rather than bold, clear lines, for pursuit of fairness rather than a passion for principle or for logical consistency. Look for conservative Republican Arizona political instincts and a commitment to states’ rights, leavened by a spirit of moderation, a steady judicial temperament and a pioneer career woman’s understated, almost bland disdain for sex discrimination.

Look, also, for some paradoxes. President Ronald Reagan’s first appointee may now be liberals’ last, forlorn hope for staving off a Reaganite rout of their favorite precedents, and above all of Roe v. Wade. She owes her seat to affirmative action- Reagan kept a 1980 campaign promise to name a woman when he plucked her from relative obscurity in 1981-but she has issued a ruling that may doom many affirmative action programs. Most puzzling, she files moderate-spirited opinions against governmental endorsement of religion, then signs a cockeyed letter supporting the notion that this is "a Christian nation." And when her letter comes to light and attracts criticism, she offers only an evasive non-apology that begs the question why she signed it (see sidebar, page 70).

It is a distinctive personal mix, one that invites a range of labels. To liberals she seems a hard-edged conservative; to conservatives an unreliable ally; to professional women a superb role model; to ardent feminists a disappointment; to admirers fair-minded, balanced, and intelligent; to critics muddled, inconsistent, and wanting in real intellectual distinction.

That she is hardworking and conscientious is beyond dispute. And several former clerks, not all of them hers, say she tries harder than any-one else on the Court to approach issues with an open mind.

If O’Connor’s efforts to balance conflicting objectives sometimes seem tortured, so does the very mission of the modern Supreme Court, which we ask to solve unsolvable problems and of which we demand a godlike wisdom that mortals cannot deliver. "She gets criticized for being wishy-washy," says a leading Supreme Court litigator. "But these are hard issues. A lot of people pretend that they’re easy."

The world was watching O’Connor during the April 26 argument in Webster v. Reproductive Health Services, looking for clues as to whether the Court’s first woman would cast a fateful fifth vote to overrule Roe v. Wade. She has severely criticized Roe’s analysis but seems genuinely torn about the abortion issue and less than eager to return to the states the power to ban a practice many women consider their inalienable right. Speculating that her colleagues are evenly split and she may be undecided, abortion rights marchers aim their appeals at her, lawyers aim their briefs at her, and letters bombard her chambers, a thousand a day. Partisans prepare to brand her a traitor to her sex or an accomplice in baby-killing.

Seldom has the stage been so dramatically set for a member of the Court to fix with one act her image in the hearts and minds of her contemporaries and her place in history.

But not just yet, perhaps. Webster could prove to be the biggest legal event of the decade-or the biggest anticlimax: The Court could construe Missouri’s relatively mild restrictions on abortion narrowly and uphold them without laying a glove on Roe, or it could send the case to the lower courts for more work or order it reargued. That would defer until next year or later any broad reappraisal of abortion rights.

In the eye of the present storm O’Connor seems calm, her face a mask of composure as she poses for photographs. She politely declines to be interviewed for this article, citing the controversy now swirling around the Court. Then she hurries back to her office. She has much work to do.

Since Justice Lewis Powell, Jr.’s retirement nearly two years ago, Justice O’Connor has inherited his mantle as the pivotal vote on a wide range of ideologically charged issues. She is the one most likely to determine which benefits for religious groups will stand and which will fall, which job discrimination suits and affirmative action plans will be upheld and which will fail, and, along with Justice Byron White, which death row inmates will live and which will die.

In the closest cases, lawyers often pitch their arguments to her, as they once did to Powell. "If you try to think of the Supreme Court as some kind of collective entity with an attitude, that attitude would best be represented by Justice O’Connor," says a former Supreme Court clerk who now litigates there.

Unlike Justice Powell, who joined the Court’s liberals on big issues including abortion and affirmative action, Justice O’Connor leans decidedly to the conservative side in such cases. Her pivotal new role reflects the historic shift to the right in the Court’s overall balance brought about by President Reagan’s three appointments, especially that of Justice Anthony Kennedy to replace Justice Powell.

On most of the biggest issues, Justice Kennedy is taking a place alongside Chief Justice William Rehnquist and Justice Antonin Scalia as one of the Court’s most conservative members. Justice White is closer to the center. Justice O’Connor is the center. Justices William Brennan, Jr., and Thurgood Marshall hold down the left flank, usually joined by Justice Harry Blackmun and often by Justice John Paul Stevens.

With four to her left and four to her right, Justice O’Connor sometimes sets the law of the land even when she concurs in an opinion that no one else joins.

Though former clerks say she sticks with a decision once made, she often wrestles hard with issues before deciding which way to come down. Those who have heard him say that Justice Blackmun, who does boffo impressions of his colleagues, gets her emphatic, deliberate voice just right in mimicking her comments in conference: "What I have to say is very, very tentative." Another colleague adds, however, that "her so-called tentative votes at conference don’t change any more than the rest of ours do."

Justice O’Connor holds her ground tenaciously in the Court’s internal wrangles. "She gives no quarter, she asks no quarter," Justice Blackmun said in 1982. "She’s very nice, but if you cross her she’ll kick you in the shins," another of her brethren says.

A third puts the point more delicately: "She’s no pushover, in the sense that she knows her stuff and when she wants to be very positive about it she can be. She’s quite determined about her positions. But she and I have worked out many differences of opinion and I have no problems with her."

The stubborn independence with which Justice O’Connor charts her own course is manifested by the unusual number of cases in which she takes distinctive positions between two opposing camps. (A former Brennan clerk says she seemed especially reluctant to join Brennan’s opinions, even when her own positions were similar, whether because she was "uncomfortable with the rhetoric, or uncertain what little time bombs had been planted by Brennan’s clerks and wanted to make her understanding of the Court’s holding clear.") For example:

ï In City of Richmond v. J.A. Croson Co. in January, Justice O’Connor wrote a major decision striking down the city’s program setting aside 30 percent of its contracting dollars for minority-owned contractors.

Her plurality opinion casts a long shadow over governmental preferences for racial minorities in hiring and promotions as well as in contracting, but stops short of barring such preferences altogether. The vote was 6 to 3, but if one parses the justices’ separate opinions in this and earlier cases one finds O’Connor squarely in the center of the current Court on affirmative action and less absolutist in opposing racial preferences than was the Reagan Justice Department.

ï In Bowen v. Kendrick, a 5-to-4 decision in June 1988 upholding on its face a federal statute financing religious groups to counsel adolescents against pregnancy and abortion, she joined the Rehnquist-White-O’Connor-Scalia-Kennedy majority opinion. But she parted company with the others in a lone concurrence lashing the Reagan administration for allowing grant recipients to engage in religious indoctrination, in an apparently unconstitutional application of the law.

ï In Price Waterhouse v. Hopkins, a major May 1 sex discrimination ruling, she sided grudgingly with the Brennan-Marshall-Blackmun-Stevens plurality. Their opinion shifted to the defendant the burden of proving that discrimination had not been a causal factor in the company’s denial of partnership to a woman who had shown the process was tainted by sexual stereotyping. But the cool, nuanced O’Connor concurrence in the judgment exuded more affinity for the Kennedy-Rehnquist-Scalia dissent in its overall tone, and in stressing the need to avoid "unwarranted preferential treatment" for women in applying this rule. Justice White concurred in the judgment separately.

ï In Florida v. Riley, a 5-to-4 January decision upholding the right of marijuana-hunting police in helicopters 400 feet in the air to spy, without warrants, on backyards, her concurrence in the judgment accorded more weight to privacy concerns than the White-Rehnquist-Scalia-Kennedy plurality, suggesting she might strike down aerial spying by police at lower altitudes.

ï In Thompson v. Oklahoma, a 5-to-3 decision last June barring the death penalty for 15-year-old murderers under existing state laws, her lone, labored concurrence in the judgment held that "a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist." But unlike the Stevens-Brennan-Marshall-Blackmun plurality, she said that if states passed new laws clearly intended to subject 15-year-old killers to the death penalty, she might uphold them, because that would suggest lack of consensus against executing people that young.

"Sandra’s tough, she’s conservative, she’s a states’ lighter, she wants to let the states decide things like this," Justice Blackmun said in a speech last summer, speaking of the Thompson case. "But here was a fifteen-year-old, and the soft spots in her armor…are children and are women. And one could see that she was visibly affected by a decision in this case. And she deferred and deferred and deferred and finally wrote a concurrence."

If Justice O’Connor does have a soft spot for children, it has not prevented her from joining with the Court’s conservatives in rejecting the notion that poor children have a constitutional right to equal education. She dissented in Plyler v. Doe, a 1982 decision that required Texas to admit illegal alien children to its schools. And she wrote a decision last June inKadrmas v. Dickinson Public Schools that states may charge indigent rural children a fee for transportation to school.

She clearly does identify with the aspirations of women for full equality and "nondiscriminatory access to commercial opportunities," as she put it in a 1984 concurrence rejecting the view that the First Amendment entitles business-oriented private clubs to exclude women. She votes and speaks against overt sex discrimination-as one might expect of one who found that big law firms would not hire a woman as a lawyer and who was offered instead a job as a legal secretary after graduating near the top of her Stanford Law School class. She makes herself accessible to groups of professional women and enthuses about the progress women have made in the job market.

But she is no crusader, she evinces no sympathy for the current push by many feminists for legal preferences for women to offset a legacy of sexism, and she avoids any appearance of seeking to represent her sex in the Court’s deliberations.

Justice Powell, stressing his admiration for Justice O’Connor, says, "She brought to the Court experience no other justice on the present Court has had." Does he mean that she brought a special perspective to the Court’s deliberations by virtue of being a woman? Not at all, he explains. He is referring to her experience as "an active political leader as majority leader of the Arizona State Senate"-O’Connor is the only member of the current Court ever elected to legislative office-and as an Arizona assistant attorney general and a trial and appellate judge.

From that experience, Justice O’Connor has said, she derived a conviction that the best government is that closest to the people. In her eight years on the Court she has been the most consistent advocate, with the possible exception of Justice Powell, of the prerogatives of state legislatures and courts against encroachments by the federal government and federal courts. This is the one area in which she has often abandoned her usual spot in the center of the Court and staked out firm dissenting views.

O’Connor’s federalist bent often aligns her with conservatives, for example, in seeking to cut back federal habeas corpus review of state criminal convictions, in upholding most state death penalty laws, in supporting the discretion of school boards to remove controversial books from school libraries, and in opposing as a violation of the Tenth Amendment the application of federal wage and hour laws to state government employees. But she also cites federalist principles as a basis for upholding some state initiatives that are opposed by most conservatives, such as California’s liberal pregnancy leave law.

Two conspicuous exceptions to her pattern of deference to state and local government decisions are her votes for property owners fighting local government actions such as rent control and zoning laws and her "strict scrutiny" of local government affirmative action programs, like the Richmond set-aside plan. She said the racial quota at the heart of that plan, enacted by a city council with a black majority, was not anchored to sufficiently specific evidence of past discrimination against blacks to show that it did not reflect "simple racial politics."

To passionate believers in affirmative action, Justice O’Connor’s opinion in the Richmond case is unforgivable. She also attracts harsh criticisms from adherents of other causes against which she has voted.

But however one assesses her stands on such fundamentally political issues, she strives con…

"A kick, yes, absolutely, approximately two or three weeks before what we would consider viability today," responds the lawyer, Frank Susman of St. Louis.

And the only justice who has ever felt that kick settles back in her chair, betraying no clue how she will vote.

Look, also, for some paradoxes. President Ronald Reagan’s first appointee may now be liberals’ last, forlorn hope for staving off a Reaganite rout of their favorite precedents, and above all of Roe v. Wade. She owes her seat to affirmative action- Reagan kept a 1980 campaign promise to name a woman when he plucked her from relative obscurity in 1981-but she has issued a ruling that may doom many affirmative action programs. Most puzzling, she files moderate-spirited opinions against governmental endorsement of religion, then signs a cockeyed letter supporting the notion that this is "a Christian nation." And when her letter comes to light and attracts criticism, she offers only an evasive non-apology that begs the question why she signed it (see sidebar, page 70).

That she is hardworking and conscientious is beyond dispute. And several former clerks, not all of them hers, say she tries harder than any-one else on the Court to approach issues with an open mind.

The world was watching O’Connor during the April 26 argument in Webster v. Reproductive Health Services, looking for clues as to whether the Court’s first woman would cast a fateful fifth vote to overrule Roe v. Wade. She has severely criticized Roe’s analysis but seems genuinely torn about the abortion issue and less than eager to return to the states the power to ban a practice many women consider their inalienable right. Speculating that her colleagues are evenly split and she may be undecided, abortion rights marchers aim their appeals at her, lawyers aim their briefs at her, and letters bombard her chambers, a thousand a day. Partisans prepare to brand her a traitor to her sex or an accomplice in baby-killing.

Seldom has the stage been so dramatically set for a member of the Court to fix with one act her image in the hearts and minds of her contemporaries and her place in history.

With four to her left and four to her right, Justice O’Connor sometimes sets the law of the land even when she concurs in an opinion that no one else joins.

ï In City of Richmond v. J.A. Croson Co. in January, Justice O’Connor wrote a major decision striking down the city’s program setting aside 30 percent of its contracting dollars for minority-owned contractors.

ï In Bowen v. Kendrick, a 5-to-4 decision in June 1988 upholding on its face a federal statute financing religious groups to counsel adolescents against pregnancy and abortion, she joined the Rehnquist-White-O’Connor-Scalia-Kennedy majority opinion. But she parted company with the others in a lone concurrence lashing the Reagan administration for allowing grant recipients to engage in religious indoctrination, in an apparently unconstitutional application of the law.

ï In Price Waterhouse v. Hopkins, a major May 1 sex discrimination ruling, she sided grudgingly with the Brennan-Marshall-Blackmun-Stevens plurality. Their opinion shifted to the defendant the burden of proving that discrimination had not been a causal factor in the company’s denial of partnership to a woman who had shown the process was tainted by sexual stereotyping. But the cool, nuanced O’Connor concurrence in the judgment exuded more affinity for the Kennedy-Rehnquist-Scalia dissent in its overall tone, and in stressing the need to avoid "unwarranted preferential treatment" for women in applying this rule. Justice White concurred in the judgment separately.

ï In Florida v. Riley, a 5-to-4 January decision upholding the right of marijuana-hunting police in helicopters 400 feet in the air to spy, without warrants, on backyards, her concurrence in the judgment accorded more weight to privacy concerns than the White-Rehnquist-Scalia-Kennedy plurality, suggesting she might strike down aerial spying by police at lower altitudes.

ï In Thompson v. Oklahoma, a 5-to-3 decision last June barring the death penalty for 15-year-old murderers under existing state laws, her lone, labored concurrence in the judgment held that "a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist." But unlike the Stevens-Brennan-Marshall-Blackmun plurality, she said that if states passed new laws clearly intended to subject 15-year-old killers to the death penalty, she might uphold them, because that would suggest lack of consensus against executing people that young.

"Sandra’s tough, she’s conservative, she’s a states’ lighter, she wants to let the states decide things like this," Justice Blackmun said in a speech last summer, speaking of the Thompson case. "But here was a fifteen-year-old, and the soft spots in her armor…are children and are women. And one could see that she was visibly affected by a decision in this case. And she deferred and deferred and deferred and finally wrote a concurrence."

If Justice O’Connor does have a soft spot for children, it has not prevented her from joining with the Court’s conservatives in rejecting the notion that poor children have a constitutional right to equal education. She dissented in Plyler v. Doe, a 1982 decision that required Texas to admit illegal alien children to its schools. And she wrote a decision last June inKadrmas v. Dickinson Public Schools that states may charge indigent rural children a fee for transportation to school.

But however one assesses her stands on such fundamentally political issues, she strives conscientiously to do justice to both sides in the many hard cases she must confront. And while her flirtation with "Christian nation" causists may suggest something of a blind spot to ethical pitfalls and minority sensitivities, she is an admirable public servant.

This characterization necessarily rests as much upon interviews with former law clerks and others who know Justice O’Connor as it does upon her published work and her public appearances. We see Supreme Court justices through a clouded glass, because their opinions are drafted largely by law clerks. Good clerks can make a justice seem a lot more intelligent or eloquent or crafts-manlike than he or she really is. And when assessing any of the justices one must stop to wonder who really wrote the best lines published under their names.

Like most of her colleagues, Justice O’Connor does little original drafting of opinions and confines herself to relatively light editing when she is satisfied with the substance, according to a majority of the five of her former clerks who were interviewed in detail for this article, all of whom praise her highly. She decides how to vote, tells her clerks in more or less detail what kind of opinion she wants, supervises and edits them, and sometimes writes key sections. But the caseload is simply too heavy for the justices to write many of their opinions personally.

Some Court-watchers and former clerks for other justices, deprecating Justice O’Connor’s abilities and command of her agenda, suggest that she is inordinately "scripted" at oral arguments and "clerk-influenced" in her opinions. They cite the sometimes pronounced variations from year to year in the style and occasionally in the substance of her opinions.

But the five former O’Connor law clerks interviewed (three of whom insisted on anonymity) and others including Justice Powell depict her as a first-rate legal mind who is open to persuasion but very much in charge of her agenda.

One must view testimonials from former clerks with a measure of skepticism: As a species they tend to gush praise for their judges, whether out of genuine conviction or loyalty or expedience. And two former O’Connor clerks who were said to have had less favorable views of her could not be reached or did not return phone calls. Still, the portrait of the behind-the-scenes Sandra Day O’Connor painted by those who were interviewed is convincingly impressive.

Several former clerks for other justices say they came to have particular respect for Justice O’Connor. Michael Rips, who clerked for Justice Brennan in the 1984-85 term and is now an associate at Grand & Ostrow in Manhattan, declined the opportunity to speak anonymously about Justice O’Connor, saying, "I have nothing but good things to say about her. She attacked each issue with an intellectual neutrality that was very unusual on that Court." He adds, "She stands out for that. Obviously she has her biases, but they all do."

The 1984-85 term was a big year for religion cases, and Rips recalls going to the Supreme Court library- where justices rarely stray-in search of more than a dozen books about those issues. He found that Justice O’Connor had gotten there first and checked them all out. "It’s impressive to see a justice go back to first principles rather than unthinkingly parrot precedent," Rips says.

Another former clerk for another justice says, "By the time I left, she was the only one of the nine I really respected, because she was the only one of the nine who really tried to be what I had always been taught and still believe a judge should be. By that I mean she was the only one who made a serious effort to understand what the law was and to see whether it actually controlled the case…rather than to say, ‘How much do I have to bend and twist and cheat and lie to get the results I really want in this case."

This former clerk says he became disillusioned with the Court, viewing it as pervaded by cynical and intellectually dishonest manipulation of legal doctrine to achieve desired ends. "At times she gives in to the games the other justices are playing," he says of O’Connor, "but I respect her because she does it less and tries harder not to do it. She reads things. She tries to see both sides."

She is clearly one of the Court’s hardest workers. While keeping a social schedule that would tax the energies of most people half her age, she puts in ten-hour workdays, driving a Cadillac from her home in fashionable Chevy Chase, Maryland, to the Court by 8 A.M., when her four-day-a-week exercise class starts, working until about 7 P.M., and often coming in on Saturdays. She usually eats lunch alone in her office to save time and takes piles of work home. She spends most of her time reading reams of petitions, briefs, bench memos her clerks have prepared about cases awaiting argument, and opinion drafts. She wades through stacks of letters.

"I’ve never met anybody who could concentrate the way she could," recalls Gary Francione, who clerked for O’Connor during the 1982-83 term and is now an associate professor at the University of Pennsylvania Law School, visiting this spring term at Rutgers University School of Law. "She’d be in that office all day long sitting there reading, all day long without moving from her chair….Her lunch would be brought in, and she wouldn’t move, and if she went out to a social thing it would be about 7 [P.M.] or something like that."

On Saturdays when the Court is in session, Justice O’Connor spends several hours with all four clerks discussing the 12 cases to be heard the following week, probing them for their views and solidifying or reassessing her own.

Justice Powell remembers dropping off a stack of legal briefs with Justice O’Connor in Utah, where she had been skiing during the Court’s February recess and where he was going to make a speech. "When I delivered the briefs I asked Sandra when she would read them all," he recalls, "and she said, well, she would get up at 5:30 in the morning and read them before skiing all day long."

"She does her homework," says a current member of the Court.

On the eve of her mastectomy last October 21, she kept an appointment to make two speeches at Washington and Lee University, more than three hours’ drive from Washington. She was back on the bench ten days after the surgery. She did not miss a single argument and has not broken stride since, despite postoperative chemotherapy that has sometimes left her looking drawn and drained.

O’Connor’s clerks work even longer hours than most others at the Court-maybe 80 hours a week instead of only 70-mainly because she has them prepare detailed bench memos analyzing and summarizing cases before oral arguments.

"It’s hard to say the clerkship was a lot of fun, because it was a terrible year. When I finished my clerkship I looked like the walking dead. It was a terribly hard job," Francione says. "But it was educationally wonderful, professionally fantastic, and I look back on that year with a great deal of fondness."

How smart is she? Most former clerks and others close to the Court agree that, while not one of the Court’s quickest or most creative intellects or better prose stylists, she is highly capable, remarkably efficient in using her time, and able "to summon up the most arcane argument that had been made in one of the twenty-seven amicus briefs that had been filed in a case," as one former clerk put it.

Some former clerks also say she has a sense of fairness and perspective as valuable in its way as the ideologically powered, theoretical laser beam mind of an Antonin Scalia or the quirky cleverness of a John Paul Stevens.

This is not a universal view. "I think she’s trying to be like Justice Powell, who had this acute sense of fairness and broad vision," says one federal judge whose views are more liberal than O’Connor’s, "but because she doesn’t have his viscera she often ends up splitting the baby."

Francione, however, who notes that he often disagreed with Justice O’Connor, says, "I think she came very close to fulfilling the idealistic conception of what a justice is supposed to be, someone who really mulls over these cases…trying very hard to call the shots fairly after exhaustive research and a lot of thought and discussion. I never thought that her door was closed or her mind was closed on an issue."

Adds Stephen Gilles, who clerked for Justice O’Connor during the 1985-86 term and is now an associate at Mayer, Brown & Platt in Chicago: "The law is full of cleverly unintelligent people….If what we’re measuring is sheer quickness and nimble-ness, that kind of thing, she does quite well but is not a superstar. But if what we’re measuring is judgment and discernment and the ability to separate the chaff from the wheat, then I think she’s really impressive. … If she were debating Justice Scalia she might get outpointed, but there’s a tendency in legal circles to overvalue that debating stuff."

Is she inordinately influenced by her clerks? One former clerk, while acknowledging that "her opinions often read like they were written by clerks and there are noticeable differences in style," says he learned that "in supervising and editing the clerks she is much more interested in ensuring that the final product substantively reflects her thinking than she is in imposing her personal style on the prose."

The five former clerks generally say they were free to argue with her initial views on cases and often did, occasionally persuading her to reconsider. "She wanted to make an informed decision and relied on us to inform her, but there was never a doubt who the justice was," says Francione. Two former clerks for other justices say Justice O’Connor has had clerks who were far more liberal than she politically, and who were frustrated by their inability to win her over more often to their point of view.

On a personal level, most of O’Connor’s former clerks describe her as businesslike but friendly and not without humor. They say she took a personal interest in them and their families and would sometimes have them to her home and cook for them. She can be warm, giving, and motherly; she can also be quite sharp when she thinks a clerk has let her down.

"There were times when one of us would just rub her the wrong way by being pushy at the wrong time or being unreliable," Gilles explains. "The justice needed to be a hard taskmaster at times…. But she has a real capacity for friendship that crosses the obvious impediments of high office."

Oral arguments provide some opportunity for the public to see the justices’ minds at work. Justice O’Connor is among the best prepared, often reading aloud questions she or her clerks have written out in advance. As much as anyone else on the bench, she tends to frame questions that cut through the side issues and go straight to the heart of a case.

In the April 26 argument in Webster, for example, when former solicitor general Charles Fried was delivering the Bush administration’s attack on Roe v. Wade, it was she who probed most sharply his distinction between contraception (which Fried said was constitutionally protected) and abortion.

"Do you say there is no fundamental right to decide whether to have a child or not?" she asked. Fried said he would "hesitate to formulate the right in such abstract terms." The future of abortion rights could well turn on how Justice O’Connor answers her own question.

She is tenacious in pursuing lawyers who don’t give her straight answers, if less deft in follow-up questioning than the quick-witted Stevens, Scalia, and White. The tone of her questions is often quite testy. This provokes a range of speculation: One woman who has argued before her says she seems "especially testy with woman attorneys." Another woman who has watched her says she may feel provoked by male attorneys who seem disrespectful. And a woman who has encountered her in formal settings says that’s just the way she talks.

Off the bench, Justice O’Connor’s public persona is unpretentious-she once asked a starstruck grocery clerk what identification she would need to show to open an account-but dignified, reserved, and sometimes quite stiff. Especially when journalists and others who inspire circumspection are about, hers is the no-nonsense demeanor of a woman who-as one woman lawyer observes-succeeded in a man’s world in an era when friendliness or levity could be mistaken for flirtatiousness or frivolity. A former Supreme Court law clerk recalls a conversation in which Justice O’Connor walked up to her, fixed her with a hard gaze, began talking in what seemed a stern, accusing tone-as though to say, "You have brought disrepute on this institution"-and then paid her a very nice compliment.

The frostiness disappears from Justice O’Connor’s demeanor in relaxed settings and when she is among those she knows well, according to friends, former clerks, and people who have met her at social gatherings. "She’s a terribly sweet person, not the least bit aloof with us," says a colleague, adding, "she has a marvelous sense of humor; she seems especially to like Thurgood’s stories." (Justice Marshall often tells humorous, mainly apocryphal, anecdotes at conferences.)

"She definitely has a business side to her and a personal side," says another denizen of the Court. The personal side is informal and fun-loving, whether at a dinner party, a game of bridge, or on the dance floor with her husband, John, a lawyer renowned for his wit and ability to spin funny yarns. "One of the things she cherishes about her husband is his capacity to make her laugh," says a former clerk.

"She’s very gracious, also very much a lady, a charming person in every respect, smiles easily, laughs readily, and not at all stiff," says former Republican U.S. representative and chairman of the Nixon reelection campaign Clark MacGregor, who is a social friend of the O’Connors and plays in a regular 7 A.M. tennis doubles group with her husband. (John O’Connor III left Washington, D.C.’s Miller & Chevalier last fall to join St. Louis’s Bryan, Cave, McPheeters & McRoberts; the firm announced that he would spend two weeks a month in the Phoenix office and two weeks in Washington.)

"She and her husband really cut a very nifty figure on the dance floor," says Barbara Gamarekian, who covers the Washington social scene for The New York Times. "Whirling, dipping, and that sort of thing, very tricky, very fast…. She’s very down-home, easy to talk to, very accessible. You’d never know she was a Supreme Court justice. The people at these parties call her Sandy. You’d never go up to Byron White and call him Whizzer, but they call her Sandy and she doesn’t seem to mind." She takes in a steady stream of social events populated by Cabinet secretaries, powerful Republicans, and people with money.

Justice O’Connor also plays golf and tennis well, often at the exclusive Chevy Chase Club, a stone’s throw from her home. She is an avid skier and backpacker and has traveled widely during the Court’s summer recesses, taking in a mix of international legal events and natural wonders. She is said to be an excellent horsewoman and good with a rifle, as befits a woman raised on the isolated Lazy B cattle ranch, a 260-square-mile spread straddling the Arizona-New Mexico border, which has been in her family since 1881. When she was a child the ranch house had no electricity, running water, or indoor plumbing.

"The fact that she grew up in the West on a ranch has a lot to with her whole character," one former law clerk says. "The old stock phrase ‘rugged individualism’ fits her better than anyone I can think of…. If you draw from her opinions a sense of her overall outlook on the world you would find great admiration for individual initiative and people taking personal responsibility for their actions and having a presumptively wide freedom to go out and build things and generate everything from business to ideas, a strong entrepreneurial element to her outlook on the world."

Dovetailing with the moderately conservative political outlook and commitment to state’s rights that comes naturally to a product of this culture is a jurisprudence characterized by a modest view of the power of the federal judiciary to check majority rule, to intervene in political decisions, and to engage in social engineering.

She is, for example, a reliable Reaganite ally of the Court’s most conservative members in rejecting arguments that the Constitution provides special protections for poor people, in narrowing the rights of criminal defendants, in upholding drug testing of governmental employees and otherwise devaluing Fourth Amendment protection against searches and seizures and the like.

Some former clerks for other justices and others who have worked at the Court anonymously ascribe the lack of solicitude for the poor that characterizes her jurisprudence to an affluent, country-club-Republican lack of empathy for life’s losers. "How can you understand poor people if you’ve never known them except as servants?" comments a liberal who has observed O’Connor closely and read her opinions. Former clerk Francione dismisses this view, asserting that in her basic instincts his former boss "is extremely empathetic vis-‡-vis people of different socioeconomic backgrounds."

Justice O’Connor has shown herself willing to part with her usual conservative allies in some cases involving libel, free speech, religion, and other civil liberties issues, and to bend legal doctrines to which she generally adheres in order to express disapproval of governmental policies she finds outrageous. She also evinces more reluctance than her conservative allies to topple liberal precedents. "She believes the law should move in small steps," says one former clerk.

Areas of particular interest in her jurisprudence, in addition to her federalist bent, include abortion, sex and race discrimination, affirmative action, and church-state issues.

To many partisans in the current abortion controversy, the business of the Supreme Court consists principally of deciding what to do about Roe v. Wade. Justice O’Connor is the focus of attention-and of especially direct personal appeals by pro-choice women-because of the widespread if shaky assumption that her eight colleagues are evenly split and she is still on the fence.

Chief Justice Rehnquist and Justices White and Scalia are viewed as almost certain votes to overrule Roe, though not necessarily in Webster, Justice Kennedy seems likely to do the same, though he has never publicly expressed a view on abortion rights and could surprise everyone.

That makes four. With Justices Brennan, Marshall, Blackmun, and Stevens solidly committed to Roe, the speculation goes, the law of the land will be determined by Justice O’Connor.

What will she do? A perusal of her only opinions in abortion cases, in 1983 and 1986, offers abortion rights advocates little basis for optimism but enough ambiguity to keep their hopes alive.

She has voted (in dissent) to uphold every restriction on abortion she has reviewed. But all these restrictions have been relatively mild, and she has stressed that they did not prohibit anyone from having an abortion or impose what she termed an "undue burden" on whatever right to abortion might exist.

She has condemned Roe v. Wade’s analytical framework as being "on a collision course with itself," but pointedly refused to join a 1986 White-Rehnquist dissent that called for overruling Roe altogether, on the ground that none of the parties had sought such a step.

Most important, she has said that "even assuming that there is a fundamental right to terminate pregnancy in some situations, there is no justification in law or logic for the trimester framework adopted in Roe," and that states have "compelling interests in the protection of potential human life… throughout pregnancy."

Her record before joining the Court is also ambiguous. As an Arizona legislator, Justice O’Connor voted in 1970 for a bill to decriminalize abortion. But, according to news reports, at a July 1, 1981, meeting with President Reagan before her nomination, she assured him that she found abortion "personally repugnant" and "an appropriate subject of state regulation." As a nominee seeking Senate confirmation over passionate opposition from antiabortion groups who considered her suspect, she testified that her 1970 vote had been a mistake. "For myself, abortion is offensive to me, it is repugnant to me, it is something in which 1 would not engage," she said. But she refused to give her view of Roe v. Wade.

Those on the pro-choice side of the issue steadfastly hope that the woman in Sandra Day O’Connor will vanquish the doubts that the jurist in her entertains about the constitutional and moral legitimacy of abortion rights. Outside the Supreme Court after the April 26 argument in Webster, Molly Yard, president of the National Organization for Women, was asked how she felt history would remember Justice O’Connor if she should vote to overule Roe. "I’m not sure I should say," she replied. "I can’t believe a woman would do that."

Two pro-choice lawyers who heard O’Connor’s unheralded February 15 speech to a group called Executive Women in Government took some heart from her brief mention of the Webster case toward the end of a talk about the evolving protection of women’s rights by the Supreme Court. Both women say they went into the speech thinking Justice O’Connor would probably vote to overrule Roe. "She didn’t say much about the abortion case but she indicated she viewed it as a women’s issue, which already is more than I thought she should have said," says one. "When I left the meeting I was laying two-to-one odds she wouldn’t vote to overrule Roe v. Wade. I’m sure she would cut it back some, though."

The other woman concurs. She adds, "I never thought of her as a women’s rights person but I guess she had to be to have gotten where she is."

Still, Justice O’Connor is viewed with deep ambivalence by the feminist community. "As a role model she’s been an impressive example to women who want to have a career but also want to be committed parents, and from that standpoint I admire her," says Nan Aron, director of the liberal Alliance for Justice in Washington. "But she has not been a fighter for justice and she has not stood up for women and other disadvantaged minorities."

In cases involving overt sex discrimination, even the ostensibly benign variety, O’Connor has construed the equal protection clause broadly to strike at "archaic and stereotypic notions" of sex roles and "mechanical application of traditional, often inaccurate, assumptions about the proper roles of men and women." These were her words in a 5-to-4 majority opinion in Mississippi University for Women v. Hogan in 1982, holding unconstitutional a state law limiting a state-supported nursing school to women. She said the law "tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job."

Her opinions in other major sex discrimination cases, like Price Waterhouse v. Hopkins, fall into a pattern: She typically finds a way to vote for the woman, even when she has to strain her usual doctrinal approach to do so, but she often writes a separate concurrence to distance herself from the liberals and to narrow the importance of the decision as a precedent in future sex and race discrimination cases.

But aside from abortion the cutting-edge issues for women’s groups, as well as for racial minorities-and the issues that divide the Court-are affirmative action and the closely related, complex question of what kind of evidence suffices to prove job discrimination. And Justice O’Connor has been moving to cut back the scope of affirmative action and to tighten the noose around reverse discrimination.

In her opinion in the Richmond case, she said that all governmental programs favoring members of one race over another are "highly suspect" and should be struck down unless they meet a test that few racial classifications have ever been found to meet: They must be "narrowly tailored" to serve the "compelling state interest" of redressing "identified discrimination."

Justices Marshall, Brennan, and Blackmun said in dissent that the decision "sounds a full-scale retreat" from affirmative action remedies for past discrimination, and so it may. But Justice O’Connor’s opinion characteristically left open the possibility that governmental racial preferences for minorities might be justified in a few "extreme" cases "to break down patterns of deliberate exclusion," or perhaps more broadly "to ameliorate the effects of past discrimination." It also left legislators, scholars, and others guessing at where she would draw the line.

While Justice O’Connor’s opinions on affirmative action have avoided absolutist rhetoric, the bottom line is that she has voted to strike down five of the six affirmative action plans she has reviewed on the merits. The five she found illegal were designed mainly to benefit racial minorities. The one she grudgingly upheld was designed to benefit women.

A coincidence? Perhaps. In any event, in her 1987 concurrence supporting a county agency’s promotion of a woman instead of a marginally better-qualified man to a job dispatching road crews, she took pains to reject what she called the majority’s "expansive and ill-defined" endorsement of voluntary affirmative action plans by private employers.

The county’s plan was challenged only under Title VII of the 1964 Civil Rights Act, not the Constitution, and so the decision upholding it, Johnson v. Transportation Agency, is an important precedent for cases involving private employers not subject to the more stringent rules the Court has laid down in constitutional cases. Justice O’Connor said that Title VII allowed use of such racial or sexual preferences only to redress statistical imbalances so gross as to suggest past discrimination by the same employer.

Also alarming to civil rights and women’s groups was a plurality opinion Justice O’Connor issued last June that could make it harder to infer illegal job discrimination from statistical evidence showing that racial minorities are underrepresented in an employer’s workforce. Her opinion in the case, Watson v. Fort Worth Bank and Trust (a Title VII suit by a black bank teller alleging that she had been denied promotion because of her race), struck a careful balance, but one that moved the law in a direction more pleasing to the Reagan administration than to civil rights groups.

Citing the need to flush out "subconscious stereotypes and prejudices," she first rejected the administration’s argument that plaintiffs should be required to prove intentional discrimination, rather than just "disparate impact," in suits challenging promotion decisions that are based on subjective evaluations by supervisors. But she also suggested that courts had been too ready to equate statistical under representation of minority groups with discrimination. She stressed the risk that employers driven by fear of statistically based liability "will be given incentives to adopt quotas or to engage in preferential treatment" of minorities. And to spur lower courts to avoid such "perverse results," she specified standards of proof that, while somewhat ambiguous, appear to be harder for minority plaintiffs to satisfy than those suggested by previous decisions.

"It is completely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance," Justice O’Connor said in her Watson opinion.

(This logic would apparently apply to discrimination cases based on sex as well as on race. It contrasts, however, with Justice O’Connor’s statement in a 1985 interview with The Saturday Evening Post: "I fully expect to see the percentage of women in the practice [of law] reflected in the roughly similar percentages on the bench and in other activities in which lawyers are generally engaged.")

The O’Connor plurality opinion in Watson was joined by Chief Justice Rehnquist and Justices White and Scalia; Justices Blackmun, Brennan, and Marshall said her discussion of the burden of proof "is completely contradicted by our cases." Justice Stevens also declined to join in it.

The O’Connor view will become law if Justice Kennedy, who did not participate in Watson, supports it in Wards Cove Packing Co. v. Atonio, a similar case that is pending as this goes to press. The result would likely be to make it easier for employers to defend against statistically based discrimination suits by minorities and women, and to reduce employers’ incentives to adopt affirmative action preferences.

Justice O’Connor’s opinions for the employer-defendant in Watson and for the plaintiff-employee in Price Waterhouse v. Hopkins evince a common theme: She wants to fine-tune the evidentiary standards under Title VII to strike at genuine discrimination against women and minorities but at the same time to avoid spurring discrimination in their favor.

O’Connor’s efforts to devise an alternative to the Court’s much-criticized three-pronged test for determining what is an unconstitutional establishment of religion have attracted particular attention, and mixed reviews, from academic commentators.

She first proposed her test in Lynch v. Donnelly in 1984. The issue was whether it was unconstitutional for a municipality to include a Nativity scene in its annual Christmas display. She reasoned in a concurrence that governmental action benefiting religion should be upheld unless it "sends a message to nonadherents that they are outsiders, not full members of the political community," by conveying what "objective" observers would view as "a message of endorsement or disapproval of religion." So far, so good. But then O’Connor joined the 5-to-4 majority in upholding the city-sponsored crËche, on the ground that the "overall holiday setting," complete with secular symbols like reindeer pulling Santa’s sleigh, made it clear that "celebration of the public holiday," not of Christianity, was the purpose of the crËche.

Nonsense. Most academic commentators, even those who like the outcome of the case, find her vote grossly inconsistent with her own establishment clause analysis. It is simply hard to see a government-sponsored Nativity scene as anything but an endorsement of Christianity, not just of the Christmas holiday, even if a batch of reindeer and a Christmas tree are thrown in, too. Professor Laurence Tribe of Harvard Law School and others have suggested that the perspective from which Justice O’Connor seemed to assess the issue was that of the "reasonable Christian."

But after this inauspicious vote, Justice O’Connor has walked a commonsensical line in establishment clause cases, taking centrist positions in approving limited state aid to parochial schools, in striking down a Louisiana law requiring public schools teaching evolution to teach a pseudoscience called "creation science" as well, and other cases.

Her best and most important establishment clause opinion, again a lone concurrence, came in 1985 in Wallace v. Jaffree, in which the Court struck down an Alabama law providing a moment of silence in schools for private contemplation or prayer. She staked out a principled, nuanced position, more receptive to state accommodations of religious liberty and practice than the liberals but far more committed to separation of church and state than the Reagan administration and Justice Rehnquist.

Rejecting President Reagan’s attack on the Court’s precedents banning state-sponsored school prayer, Justice O’Connor held such prayer was inherently coercive. She voted to strike down the Alabama moment-of-silence statute because it was clearly designed to promote organized prayer. But she said she would uphold moment-of-silence laws that did not single out prayer as the preferred activity.

Justice O’Connor’s greatest weakness as a jurist may be that she seems to have so much trouble coming down hard on either side of some issues that her opinions become studies in ambiguity and complexity, with something for everyone.

She often leaves lower court judges guessing at how the next case should be resolved. In one recent case, for example, two Reagan-appointed judges and a Carter-appointed judge needed to decide a dispute over attorneys’ fees based on a precedent in which O’Connor’s lone concurrence had tipped the balance. "Her word is the law of the land, but we just didn’t know what to make of it," one of the judges recalls. "She left the issues very, very unsettled."

If this trait is a flaw, it is also the byproduct of a virtue: Justice O’Connor puts fairness above ideology and balance above clarity. Boldness and intellectual coherence come more easily to ideologues who ride their pet principles to the limits of their logic, without worrying about the confusion of competing values.

"There is an element to her that bridles at the notion that difficult problems have easy answers, that you really need to choose one side or the other," says one former clerk. In this sense, he adds, "there is an analogy to Powell who almost was committed as a matter of principle to … muddling through difficult problems."

"A wise man," Learned Hand said in a tribute to Benjamin Cardozo 50 years ago, "can weigh the conflicting factors of his problem without always finding himself in one scale or the other." Sandra Day O’Connor seems to be striving for such wisdom, if not always to have attained it.

Stuart Taylor, Jr.

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by Stuart Taylor, Jr