There was good reason to believe, as the U.S. Supreme Court's term drew to a close last week, that President Bush would busy himself this summer choosing a replacement for William Rehnquist, the court's aging and ailing chief justice.
It would have been the president's first opportunity to make his mark on the nation's highest court, even though replacing the conservative chief justice with a conservative nominee would not have significantly shifted the balance of the sharply divided nine-member body.
Instead, Bush will spend at least part of his summer battling his political opponents as he tries to replace not Rehnquist but Justice Sandra Day O'Connor, whose surprise retirement announcement Friday gives the president his best chance of completely reshaping the court.
"She occupies the center of the court, or she did for at least the last five terms, so replacing her, assuming Bush gets to appoint someone he wants, what you are going to get is the most conservative court, at least since we have data going back all the way to 1937," said Lee Epstein, a law and political science professor at Washington University in St. Louis and co-author of a far-reaching study on the voting habits of Supreme Court justices.
'O'Connor Court'
It might rightly be known as the "Rehnquist Court," but in her 24 years on the bench, O'Connor has gradually assumed a more influential and powerful position, to the point that many legal scholars and court observers choose to refer to it as the "O'Connor Court."
O'Connor, the first woman appointed to the Supreme Court, methodically staked out the middle ground in key decisions.
More often than not, she sided with the four solidly conservative members but sometimes sided with her four more liberal colleagues.
In doing so, she has confounded the proponents of a more conservative court by voting against them on issues such as abortion rights, affirmative action and church/state separation.
'Momentous' retirement
As such, legal academics said last week, O'Connor's retirement, far more than Rehnquist's, will have a profound effect on what the Supreme Court looks like when it reconvenes for its next term in October.
"The O'Connor retirement is far more momentous than a Rehnquist retirement would have been because Justice O'Connor is undeniably the decisive fifth vote on hot-button issues such as partial-birth abortion and affirmative action," said David Garrow, a Pulitzer Prize-winning author and a Supreme Court historian at Emory Law School.
Garrow said the fact that Rehnquist, who is 80 and suffering from thyroid cancer, did not retire at the end of the court's term, as was widely speculated he would do, means that he probably expects to return in October and see the next term through if he is able.
Republican opportunities
Garrow said O'Connor's retirement is the first, and best, of at least two opportunities the Bush administration will have to reshape the court.
An analysis of the court's decisions in its last full term by Legal Times showed that 17 of its argued cases were decided on 5-4 votes, with the "liberals" on one side and the "conservatives" on the other.
The liberals -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- won eight of those decisions.
The conservatives -- Rehnquist, O'Connor, William Kennedy, Antonin Scalia and Clarence Thomas -- won eight. (In one case, said Legal Times, the ideological underpinnings were unclear).
Of the 17 decisions, O'Connor was in the majority in 13 and dissented only in five, Legal Times said.
Leading the court
Epstein took the analysis further, using complicated models and an exhaustive examination of voting records to firmly establish O'Connor as the court's "median judge" -- a powerful position in any voting bloc where the median voter is needed for a majority.
"Where she goes, the court goes," Epstein said.
Many of O'Connor's decisions were not based on any broad ideology but on precise interpretation of the particular facts of the case and narrow legal issues, Epstein and others said.
In the end, the fact that she was the first woman on the Supreme Court, and that her retirement leads to a reshaping of that court, will be O'Connor's legacy.
SANDRA DAY O'CONNOR
AGE-BIRTH DATE -- 75; March 26, 1930, in El Paso, Texas.
EDUCATION -- BA, Stanford University, 1950; LLB, Stanford University, 1952.
EXPERIENCE -- Appointed by President Ronald Reagan to the Supreme Court in 1981, confirmed by the Senate 99-0; judge, Arizona Court of Appeals, 1979-81; judge, Maricopa County Superior Court, 1975-79; majority leader, Arizona Senate, 1973-74; Arizona state senator, 1969-75; assistant attorney general, Arizona, 1965-69; practiced law in Maryvale, Arizona, 1958-60; civilian attorney for Quartermaster Market Center, Frankfurt, Germany, 1954-57; deputy county attorney, San Mateo County, Calif., 1952-53.
FAMILY -- Husband, John Jay O'Connor III; three sons, Scott, Brian and Jay.
| • | O'Connor's departure may swing court
Experts expect Bush to shift the balance with a more conservative replacement Houston Chronicle, Saturday, July 2, 2005 Byline: Tony Freemantle |
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