Justice O'Connor's Legacy 'Undercut' by Roberts Court

June 10th, 2008 11:07 PM

USA Today Supreme Court Reporter Joan Biskupic penned an article today titled "O'Connor's legacy fading on reshaped court." For this particular title, "reshaped" is code for "conservative." Biskupic's article laments several recent conservative decisions of the court, and she frames these decisions as a blow to the legacy of Justice Sandra Day O'Connor. Biskupic literally builds up O'Connor as a national hero.

When retired justice Sandra Day O'Connor visited Capitol Hill recently to speak publicly about her husband's Alzheimer's, she was greeted as a national hero. Senators lauded her historic place as the first woman on the Supreme Court and the justice whose opinions often set the nation's law.

O'Connor, who was frequently the tie-breaking vote in close cases, is further praised for her "middle-ground" practical approach in her decision making. But things have changed since O'Connor's retirement from the high court.

The court's new direction on high-profile social-policy questions — which has included enhancing the government's authority to restrict abortion — stems from its more conservative approach under Chief Justice John Roberts and O'Connor's successor, Samuel Alito, who is to the right of O'Connor.

And here is how Biskupic contrasts O'Connor with (arguably) the court's most conservative justice:

Unlike justices such as Antonin Scalia — who prefers clear-cut rules — O'Connor's jurisprudence was built on balancing tests and anchored on a pragmatic, case-by-case approach.

Isn't that an amazing statement? Justice Scalia apparently doesn't judge each case individually.

The theme of the article is that with O'Connor's departure, the "conservative majority's mode plainly conflicted with O'Connor's measured steps as it undercut precedents on a broad swath of the law."

Several examples are provided for so-called precedents being overturned, including recent decisions on partial birth abortion and public school districting.

On abortion, Biskupic writes: "Shifted course on abortion rights: The court upheld a federal ban on the abortion procedure opponents call "partial birth" and backed away from a 2000 O'Connor opinion that required an exception in such laws to protect the health of the mother."

First, take note that the author can't bring herself to use the term "partial birth" without qualifying it and sticking it inside quote marks. Secondly, the author deftly phrases that the current court "backed away" from the prior decision that addressed the health of the mother. Technically, this is true but potentially misleading. The prior case (Stenberg v. Carhart) struck down a state partial birth abortion ban on dual grounds: that it was too vague and there was no exception for the health of the mother. The new case (Gonzales v. Planned Parenthood) found that the federal statute had cured the deficiencies that were present in the state statute.

Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it.

So while the "health of the mother" was a factor in both cases, it was not the only factor, as arguably implied in the article.

On school districting, Biskupic writes: "Retreated on integration: The court made it harder for public school districts to assign students to schools outside their neighborhoods to achieve racial diversity. In 2003, O'Connor had cast the swing vote to allow affirmative action in higher education and stressed the importance of racial diversity."

Again here, Biskupic's analysis is technically correct. But the presentation is misleading, and the author's sub-heading is the re-tread of an unfair theme forwarded by the media at the time the initial decision (Parents v. Seattle School District No. 1) was made. By writing that the court "retreated on integration," the implication is that the conservative majority favors segregation. The reality could not be further from the truth as the basis for the school districting decision was summed up in the Chief Justice's now famous statement: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Overall, the focus on O'Connor's legacy is misplaced. O'Connor will always be known as the first female justice, and a justice who had an independent streak. Her legacy will not be defined by a handful of 5-4 decisions late in her career (as argued by Biskupic and a couple of her expert commentators). 

The author's idealogical point of view is pretty clear here. She is upset at a run of conservative decisions from the high court. But rather than just come out and say that, Biskupic builds up the heroism of Justice O'Connor only to tear her down at the hands of the new conservative justices. She frames these unsavory conservative decisions as the tragic destruction of the legacy of an American hero.