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The Pivotal Vote

THE BALTIMORE SUN

The woman who breached the male bastion of the Supreme Court 14 years ago is not ready, at age 65, to retreat to the place history has reserved for her. Justice Sandra Day O'Connor is at the peak of her power on the court and over the lives of Americans.

She has converted her one vote on the court into a formidable authority - and has done so almost by accident. Achieving the pinnacle of influence without obviously seeking it, Justice O'Connor has outlasted the rapid changes at the court to emerge as first among equals.

Fervently independent, the product of a hardy and isolated upbringing in Arizona amid Old West traditions, she attracts allies with great regularity. With her at the pivot, compromise on a frequently divided court can come more easily - often on her terms.

Her style of crafting open-ended, broadly phrased doctrine, unsettling to those legal experts who prefer a court that speaks with precision, helps her draw a struggling court toward common ground.

In short, the tribunal that starts a new term tomorrow most reflects Justice O'Connor's personality, her philosophy, her dominance. The court has shifted more to the right, and her basic conservative instincts put her nearer the center among the nine on the bench.

Tulane University political science professor Nancy Maveety, who is now finishing a book on Justice O'Connor, says that the justice has become ""very influential in a way that has not been noteworthy to court observers; she is sort of a neglected figure."

The fact that Justice O'Connor was the first woman on the court, Professor Maveety suggests, ""has overshadowed a lot of what she has done" in moving to the forefront. The judicial strategy that has worked best for Justice O'Connor, the professor says, is working from the outside of coalitions" rather than lobbying from within to collect majorities around her positions.

University of Minnesota law professor Suzanna Sherry, who has closely followed Justice O'Connor's rise to eminence, sums her up this way: ""She is less likely to adopt bright-line rules, she works to create balancing tests, and she tends to be a compromiser - and that is what is making her the pivotal vote."

The professor adds: ""Am I impressed? Yes, I'm not only impressed: I admire her. She is judging, not just applying principles."

Georgetown law professor L. Michael Seidman, who does not share others' admiration of Justice O'Connor and who sharply criticizes much of her work, nonetheless concludes that ""she is perhaps the most influential justice, she has the most power."

O'Connor's doctrines

The O'Connor moment in the court's history, however, may not last. It might be at risk if, after next year's presidential election, new appointees to the court tug it sharply to the extremes -- beyond the range of the subtle, quiet power she now wields.

At stake when new justices arrive over the next five years will be some of the philosophical positions that Justice O'Connor has held and championed for years, and now sees enshrined in the law of the land.

Some of the most significant of those doctrines:

* Women have a limited right to abortion, subject to close restrictions by the state legislatures or Congress.

* "Affirmative action" programs that allot public benefits on the basis of race must remain an exception, enacted only for the strongest public policy reasons.

* Racial gerrymandering of election districts, to make them safe for black candidates, promotes racial discord and should seldom be used.

* Single-sex education at public colleges or universities cannot be justified by biased assumptions about what men or women are capable of doing.

* Religious devotion, including prayers, rituals and displays, must be allowed in the nation's public life unless the government is the visible sponsor or endorses it.

* Death row inmates convicted in imperfect trials are to be spared only if they can prove they actually were innocent.

* Prison inmates must not get multiple chances to raise legal or constitutional challenges to their state convictions in federal court -- unless they can show they were innocent, after all.

* State governments have the right to expect full respect for their powers and their options from the federal government, and federal intrusions are to be allowed only to serve the most demanding national needs.

* Lawyers have a right to free speech, but not when they use it for blatant self-promotion or outright huckstering.

The decisive fifth vote

On those issues, and many hard questions on which the court is likely to split, lawyers tend to pin their hopes -- and sometimes their strategies -- on their chances of winning Justice O'Connor's vote.

"Over the last six or seven terms, she probably has been the key person," according to James F. Simon, a New York Law School professor and author of "The Center Holds," a new book about how the middle bloc on the court -- including Justice O'Connor -- has consolidated its control.

Some analysts of the court's work tend to pair Justices O'Connor and Anthony M. Kennedy in discussing the power of "the center," especially because those two agree on legal outcomes so often. But Justice Kennedy does not match her in flexibility, and he has not compiled an array of personal monuments to his views equal to hers.

Georgetown law professor David D. Cole is among the experts who maintain that it is often crucial for lawyers to try to persuade Justice O'Connor. The professor, who as an attorney argues before the court, says "she is more flexible, more pragmatic than Kennedy" -- and thus, apparently, a more available vote.

Paul T. Cappuccio, a Washington attorney and former court law clerk, agrees: "There's no question that she provides a decisive fifth vote in a lot of cases." Moreover, he said, she provides "a limiting vote" -- that is, one that keeps the court from shifting too sharply to left or right.

A current example shows what he means. Women's rights lawyers, preparing their plea in the effort to get women into the men-only Citadel military college, consciously tailored their appeal to fit Justice O'Connor's record on sex discrimination.

Although those lawyers definitely want the court to declare a sweeping new constitutional doctrine of equality for the sexes, and did insert a few pages along that line, they intentionally minimized that part of their appeal paper. Instead, they framed ,, the bulk of their argument to stay within the far narrower position that Justice O'Connor outlined 13 years ago, questioning but not outlawing all single-sex education.

Kinship with Powell

Being the target of such strategies goes with being the court's key justice, the one most firmly in the middle.

It is by now a familiar role for Justice O'Connor. She had been on the court less than two months when she found herself caught between liberal and conservative blocs in a closely divided case. Conservative Justice William H. Rehnquist dropped her a private note: "I am sure you realize . . . that you are 'in the middle,' where you will probably find yourself on more than one occasion."

In that position she has found and strengthened her authority, as retired Justice Lewis F. Powell Jr. -- a well-known centrist and one of her mentors -- did for years.

No other justice -- including Stanford law classmate Rehnquist, now chief justice -- seems to have had the intellectual kinship with Justice O'Connor that Justice Powell had. And in similar fashion (but on quite different courts), both gained significant authority by acting as balancers.

For example, she and Justice Powell saw a need to balance a general opposition to racial preferences in affirmative action programs with a desire to make sure that racial bias, when proven, does get remedied. The strong views Justice O'Connor ultimately put forward against preferences are adapted from ideas she picked up from a 1986 opinion by Justice Powell.

She hardened those views, illustrating that -- as a balancer -- she has leaned more than Mr. Powell did to notably conservative outcomes.

"She is still very conservative," says Georgetown professor Cole. "It is a mistake to paint her as a moderate; she looks moderate on today's court" -- made up of a solid bloc of deeply committed conservatives and "no strong liberal voices."

Court liberals gone

Some court analysts suggest it is easier for Justice O'Connor to follow her conservative leanings because she does not have to contend with strongly committed liberals like retired Justice William J. Brennan Jr. and the late Justice Thurgood Marshall.

The four justices who vote liberal much of the time -- Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens -- follow a more moderate version of liberalism than did Justices Brennan or Marshall and seem uninterested in the wheeling and dealing that enabled Mr. Brennan to pull together coalitions.

The changing court not only has allowed Justice O'Connor to follow the philosophical instincts that place her to the right of center, but also has made her position a magnet for majorities.

Perhaps the clearest example is the path of her work on the abortion issue, which has hung over much of Justice O'Connor's career, just as it did over the career of retired Justice Harry A. Blackmun.

She and Mr. Blackmun were on the court together for 13 years. Behind the scenes, they waged their own private war about abortion, in the wake of his majority opinion in the court's landmark 1973 decision in Roe vs. Wade establishing a constitutional right to abortion.

At one point, when he thought she had been recruited to complete a five-justice majority to overturn the Roe ruling, he circulated a bitter complaint to his colleagues, meant in part as a stern rebuke of the first woman justice: "I rue the violence that has been done to the liberty and equality of women. I rue the violence that has been done to our legal fabric and to the integrity of this court."

From an early point, Justice O'Connor had argued within the court that Roe -- decided eight years before she arrived -- had gone too far, but it is not clear whether she was ever strongly tempted to cast it aside totally.

Back in 1981, when she was named to the court, it had been expected that -- as a woman and as a former state legislator who had acted to protect abortion rights in Arizona -- she would vote as a justice in favor of abortion rights.

Her new colleague, Justice Blackmun, quickly developed doubts. At the end of their first term together, he told friends that she seemed to be a justice in a hurry, driven by a political agenda -- an agenda he identified as the conservative platform of the president who appointed her, Ronald Reagan. That platform included aggressive challenges to Roe vs. Wade.

Roe vs. Wade

The court, Mr. Blackmun and the nation did not have to wait long for Justice O'Connor to begin taking a public position -- and, to this day, she still holds to the core of that position.

Near the end of her first term on the court, the justices agreed to rule on a half-dozen unanswered questions about the scope of Roe vs. Wade -- posing the first test of Justice O'Connor's views.

As the court moved slowly during her second term toward a decision, Justice O'Connor circulated privately a first draft of a dissenting opinion. Her May 5, 1983, draft was a response to the votes of a majority of six to strike down most of the limits on abortion at issue at that time.

She lashed out at Roe as originally written, calling its three-stage definition of abortion rights "completely unprincipled and unworkable." Limits on abortions, she argued, should be judged by a legal formula that should apply "throughout the entire pregnancy." That formula: an abortion restriction would be unconstitutional only if it imposed an "undue burden" on a woman's right to abortion.

That would mean a considerable weakening of Roe, which Justice Blackmun and a court majority had believed made unconstitutional any burden put on abortion rights in the early stages of pregnancy.

In a clever piece of judicial word-juggling, Justice O'Connor and her staff in 1983 had traced the "undue burden" phrase back through prior court opinions, and located its origin: an opinion Justice Blackmun himself had written in 1976. He had not used it there as she was using it in her 1983 opinion, to narrow the right that had been declared under Roe. But for her, it had a legitimate pedigree.

For Justice O'Connor, then and later, it was a phrase with no fixed definition. Its primary significance, however, was that it definitely would allow more legislative limits on abortion than the Roe standard would -- such as waiting periods for abortion, and mandatory anti-abortion advice before the procedure could occur. Only twice, in fact, have abortion restrictions been nullified by the use of her standard.

The court changes

Her challenge to the Roe formula had further significance: It demonstrated that Roe had become something of a shaky precedent, vulnerable if the court membership changed.

And the court did change. One of the new arrivals, conservative Justice Antonin Scalia, began working behind the scenes to get Roe overruled, lobbying later appointees on the subject.

No colleague has ever criticized Justice O'Connor as severely as Justice Scalia did in 1989, when he thought her vote finally would be available to overturn Roe, but it turned out not to be. Justice O'Connor's view that Roe should not be reconsidered at that point, Justice Scalia wrote, "cannot be taken seriously." Her view on how to limit abortions, he said, was "irrational."

Beginning in 1983, Justice O'Connor's handling of the abortion issue has provided one of the best continuing examples of her particular style of judging in major constitutional cases. The first step is to define a "workable" standard, or a rule, or a "test" -- one that leaves a considerable amount of flexibility so it can be applied readily as new cases come up -- then stick with it until there are enough votes to make it the law.

In 1992, that finally happened with the "undue burden" test Justice O'Connor had been promoting for nine years to measure the constitutionality of abortion restrictions.

Picking up the votes of Justices Kennedy and Souter for that approach in a Pennsylvania abortion case, Justice O'Connor was able to get it written into law. (Although their three-way opinion actually had only their three votes formally behind it, it provided the controlling doctrine: it did not go as far to protect abortion rights as two other justices -- Mr. Blackmun and Mr. Stevens -- wanted, but it was what they had to settle for, and thus it was decisive.)

Her abiding commitment to one of her formulas, or "tests," parallels what she once described in a speech as her technique: "When I'm at the court faced with a case, I try to find everything out about that case that I can. I do as much research as I possibly can do and then I make my decision and I don't look back."

Don't look back

In one area after another of the court's toughest decision-making tasks, Justice O'Connor has taken a position, defined a standard, and not looked back.

Another example is her handling of the relationship between government and religion -- an area in which she began developing her views as early as her second term.

Government aid to religion should be struck down, she said in 1983, only when it conveys "a message of [government] endorsement or disapproval of religion." That is a more lenient standard than the sweeping ban the court began using in 1971, 10 years before she became a justice. That ban had swept away many significant links between government and religion, such as most forms of public subsidy for parochial schools.

If the government did not seem to be endorsing religion, according to Justice O'Connor's view, it could provide aid for religion, or allow religious use of public property. She gathered a majority of five in 1989, and, today, it is the controlling doctrine.

She applied the doctrine again this past June, in two major

cases: one that for the first time allowed some government financial aid to a Christian religious organization, another permitting a Christian cross to be placed on the lawn of a government building.

Leaving options open

But, as the phrases "undue burden" and "government endorsement" themselves indicate, they are flexible, even imprecise legal standards. Some lawyers and scholars suggest that may be the real key to her emergence as the leader she now is even though it is an approach other legal professionals find unsatisfactory.

An attorney who appears before the court and is a close student of its work, and who asked not to be identified, said that attorneys face a dilemma when they try to shape their pleas to attract Justice O'Connor's support. "How do you pitch cases to her? . . . How far she is prepared to go is in doubt -- always."

A problem for lawyers and lower court judges, the attorney said, is that Justice O'Connor states legal principles and then "tries to temper the principles to such an extent" when she applies them that more cases have to be brought in the future to find out what they mean.

For example, Justice O'Connor first spelled out her strong opposition to racial gerrymandering in election districting in 1993. Since then the court has ruled on two new cases on the same question, from Louisiana and Georgia, and next term will face two more, from North Carolina and Texas -- all seeking to get her views clarified.

Georgetown professor Seidman, although conceding Justice O'Connor's current power, argued that "one way of getting power is to take a position that doesn't bind her for the future." Some of her formulas, he argued, only look like legal standards or tests, but actually serve to leave her options open for another day.

He suggests that the "undue burden" standard for judging abortion restrictions is an example. That, the professor argues, is so imprecise it "is not a test at all."

Other court observers give differing reasons why Justice O'Connor's style contributes to her strong influence. University of Minnesota professor Sherry commented: "If a case has gotten all the way to the Supreme Court, there probably are competing [legal] principles [at stake]. Some justices will pick one or the other; O'Connor is more likely to find some middle ground."

By avoiding the declaration of "bright-line rules," Justice O'Connor is able to attempt compromises by "splitting the difference" between two positions on critical legal questions, professor Sherry added. "She is able to stick to flexible principles because they are flexible."

Tulane professor Maveety argues that it is a key part of Justice O'Connor's judicial strategy, "her method of influencing her colleagues," to avoid hard-and-fast legal declarations and to stay away from continuing allegiance to ideological coalitions, preserving her chance to be a "non-threatening" influence from the outside.

An attorney who is a frequent advocate before the court, who asked for anonymity, said that Justice O'Connor's consistent devotion to the legal formulas she devises has a significant impact on other justices, tending to draw them toward her.

When a given case comes up, involving one of her chosen formulas, "there's not much negotiating or compromise" with her, that lawyer said. Other justices "have got to come up with something that takes hers into account."

Tough on clerks

However imprecise some of the measuring sticks that Justice O'Connor has fashioned during 14 years may be, in other areas of her work she is said to be addicted to precision.

That shows publicly when she is on the bench for hearings. She comes armed with precise questions -- and demands precise answers. A lawyer who tries to be evasive is likely to get a prompt, sharp reprimand from her.

Justice O'Connor, court insiders say, is as demanding of her staff as she is of lawyers standing in front of her. It is part of the lore of the courthouse, in fact, that she pushes her law clerks more than perhaps any other justice.

While she is very cordial with her clerks -- will bake a cake for them, help them celebrate a major event (or perform a wedding), or cook lunch for them on a Saturday -- she also can and frequently does give grueling assignments, according to former clerks.

She tends to know, early in the process of deciding a case on which she is writing an opinion, where she wants to come out in the end. After that, there is something of a free-for-all in the actual opinion-drafting process, with clerks doing the bulk of the writing, followed by her editing.

Sometimes, a sweeping opinion will emerge from her chambers -- and be issued publicly -- without the qualifying phrases she normally prefers. One notable example, insiders say, was her 1993 ruling denouncing the creation of black-controlled congressional election districts to assure that black candidates get elected.

Some lower courts interpreted that ruling as broadly as it was written. This year, when the issue came back to the court, Justice Kennedy wrote a decision building directly upon the forceful phrases of the O'Connor opinion.

That prompted Justice O'Connor to write a short separate opinion of her own -- a frequent occurrence on major decisions where she is not writing the main court opinion. Soothing those who might worry about the scope of the decision, she wrote that the court was not trying to "throw into doubt the vast majority of the nation's 435 congressional districts."

In the most important decision she wrote last term, laying down a tough new constitutional standard that threatens most race-based "affirmative action" programs of the federal government, she put the usual limiting qualification right into the opinion, in a single, telling sentence:

"The unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it."

That statement has allowed President Clinton, and many others who support affirmative action, to argue that the court did not mean to scuttle most such programs.

Both instances, Georgetown professor Seidman suggested, show Justice O'Connor "looking for a middle position. She was not comfortable with saying race can never be used [in Congressional redistricting or in affirmative action], but she also was not comfortable with using it."

Some of this in her work, the professor adds, "has the mark of a politician."

Others say it simply has the mark of Justice Sandra Day O'Connor.

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