Justice O’Connor had pivotal role in big rulings

Justice Sandra Day O’Connor provided the critical swing vote on a series of important 5-4 decisions during her tenure, essentially setting the current legal standard on issues from abortion to religion to affirmative action.

“Justice O’Connor has been the pivot on most of the major decisions that were decided 5-4,” said Sen. John Cornyn, Texas Republican. “I argued two cases to the United States Supreme Court when I was [Texas] attorney general and, as every lawyer will tell you who argues to the United States Supreme Court, you argue to get Justice O’Connor, and Justice [Anthony M.] Kennedy, in close decisions. You virtually ignore the rest of the justices in terms of your strategy, because if you can get a Kennedy and an O’Connor, you win.”

With four solidly liberal justices, three solidly conservative justices and one conservative leaner in Justice Kennedy, Justice O’Connor’s vote was usually the tie-breaker between the two positions.

She wrote the majority opinion in a 5-4 case upholding the University of Michigan law school’s affirmative action policy in 2003. Earlier this week, she sided with the liberal justices in a 5-4 case prohibiting a display of the Ten Commandments in a Kentucky courtroom.

Kevin J. Hasson, founder of the Becket Fund for Religious Liberty, a conservative group that defends free expression of religion, said he is happy to see Justice O’Connor go.

“We have a living Constitution, her name is Sandra Day O’Connor and thank God she’s retiring,” Mr. Hasson said, adding that whoever replaces her will bring “clarity” to constitutional law on religion. “Right, left or center, the law will be clearer, and that in itself is a good thing.”

Justice O’Connor was also part of the 5-4 majority that upheld the severe restrictions on donations to federal political campaigns that were part of the McCain-Feingold Bipartisan Campaign Reform Act of 2002. And she was part of the 5-4 majority that overturned a ban on a late-term abortion procedure commonly called partial-birth abortion.

But she sided with the court’s conservatives in limiting federal power on cases such as overturning the 1994 Violence Against Women Act. That ruling prevents rape victims from suing their attackers in federal court.

And on the death penalty, she usually sided with the conservatives in upholding it, though she acknowledged in a 2001 speech that “serious questions are being raised” about its implementation.

With Republicans in control of the confirmation process, her retirement provides them with a chance to solidify the rulings in which she sided with the other conservatives on the court. Democrats find themselves playing defense in trying to preserve the balance when she sided with the court’s liberals.

Nelson Lund, a former clerk to Justice O’Connor and now a law professor at George Mason University, said she didn’t set out to be the key vote.

“She has been a pragmatic judge, and also a cautious judge, disinclined to make sweeping theoretical pronouncements,” he said. “I think just by chance it’s turned out there were enough people on either end of the ideological spectrum of the court that are willing, that that makes her the swing vote.”

Justice O’Connor was a leader on the court on the issue of federalism, siding with the conservatives on the court in limiting the extent of federal power. Still, true to form, Mr. Lund said, she often wrote concurring opinions that “could be read as suggesting a little more caution” than the rest of the majority.