Power of the Center

When you think about the most powerful woman in American history, who comes to mind? Eleanor Roosevelt? Hillary Rodham Clinton? Condoleezza Rice? Janet Reno? Not one of them can compete with Sandra Day O’Connor, who has had a more profound effect on society than any other American woman.

Appointed to the Supreme Court in 1981 by President Reagan, O’Connor was the first woman on the court. But that alone is not what has given her such power.

Positioned exactly in the middle of a polarized nine-member Supreme Court, O’Connor has provided the deciding fifth vote on some of the most controversial issues of our day. It was O’Connor’s vote that caused the court in December to uphold, 5 to 4, Congress’ sweeping effort to regulate campaign finance. She also provided a crucial fifth vote last year -- and wrote the opinion -- protecting race-based affirmative action programs in the nation’s colleges and universities. It was her fifth vote that confirmed a woman’s right to an abortion after almost two decades of legal attack. She delivered the crucial vote permitting educational voucher programs to include religious schools. It was her vote in Bush vs. Gore that overturned the decision of the Florida Supreme Court, ended the recount of ballots there and affirmed the election of George W. Bush as president.

If someone else had been appointed to her position on the court, our nation might now be living under different rules for abortion, affirmative action, race, religion in school and civil rights. We might well have a different president. And her power is not waning.

O’Connor probably will continue to cast pivotal votes this year, as the court considers the most significant national security cases to come before it since perhaps the Civil War. One case asks whether the Bush administration is free to hold alien Al Qaeda terrorists and enemy combatants captured in Afghanistan at the U.S. naval base at Guantanamo Bay, Cuba, without judicial review.

Another case calls on the court to determine whether the Bush administration may, without filing charges, detain U.S. citizens who have served as agents and soldiers of Al Qaeda and the Taliban regime as enemy combatants. These cases will ultimately determine whether the United States is able to fight Al Qaeda according to the rules of war, or whether it will have to fight a more restricted battle conforming to the basic rules of civilian law enforcement.

The court will also decide this year whether the Pledge of Allegiance’s reference to God violates the 1st Amendment and whether states may execute murderers who committed their crimes as juveniles. As the most centrist justice of the Rehnquist court, O’Connor’s views are almost certain to determine the outcome of all of these cases.

Most legal scholars and students of the Supreme Court -- O’Connor’s fans and detractors alike -- would agree that what distinguishes her approach to judging is her reluctance to draw bright-line rules, her effort to decide each case on its unique facts and context, her affinity for balancing the costs and benefits of a policy and her desire to leave issues open to be decided another day. This has the effect of making O’Connor the most important vote on contentious issues that are never really decided but instead are destined to reappear before the court again and again.

Take abortion, about which O’Connor created an “undue burden” test. If a government regulation imposes an undue burden on a woman’s right to an abortion, then it violates the Constitution. But what constitutes an “undue burden”? The courts will have to decide.

Now, whenever a legislature attempts to regulate abortion -- and a great majority of Americans believe that abortion should be subject to some regulations -- it is virtually certain that any law it passes will end up in the federal courts for review. Even after the 1992 Planned Parenthood vs. Casey decision, which finally ended the legal campaign to overturn Roe vs. Wade, neither the states nor Congress knew whether a ban on “partial-birth abortion” would be constitutional. Another round of litigation, in which O’Connor and Justice Anthony Kennedy (an original member of the Casey majority) disagreed over the meaning of “undue burden,” was required in which she provided the fifth vote in striking down such a law passed by Nebraska.

O’Connor’s reasoning has been no clearer on the issue of religion in public life. Again, she approached the subject by eschewing any clear rule, such as allowing, say, the states or Congress to decide how much aid to provide religion or even by prohibiting all state support or sponsorship for religion. Instead, she proposed an “endorsement” approach. If school vouchers or moments of silence or religious displays at Christmastime on government property create the appearance, to a reasonable observer, that the state is endorsing certain religious views, then it violates the 1st Amendment’s prohibition on a state-established religion.

As with abortion, no one can tell with certainty beforehand whether an action violates the law. What exactly is “an appearance of endorsement”? And who can be considered “a reasonable observer”? Again, each new case with somewhat different facts will demand review by a federal judge, and might well be appealed up to the Supreme Court.

Perhaps O’Connor’s approach sounds ideal for a judge. She is, an unschooled observer might think, someone who tries to be fair in each case, carefully balancing all of the facts. She looks for compromises that split the difference between extreme positions.

But her approach also has the effect of centralizing power in the Supreme Court, placing it at the center of politics and short-circuiting the more democratic legislative process. It is no longer possible for the political process to develop reasonable compromises on issues such as abortion, religion or affirmative action, because only the Supreme Court -- a group of mostly elderly, unelected officials who generally avoid contact with politicians, voters or other political institutions -- now can decide these questions for us.

There is a reason why abortion, affirmative action and religion, to name just a few issues, have remained at the center of controversy for decades: The court has left no way for our society to develop and reach a political compromise to solve them. And because O’Connor decides cases in an open-ended way, these issues are never finally settled, but instead invite renewed litigation every time a policy change is attempted.

O’Connor hasn’t acted in bad faith. Still, her approach to being a judge has had the consequence not only of concentrating power in the Supreme Court but also of granting particular power to judges who, like her, are in the ideological center. This results in unclear laws and introduces more instability into our politics as presidents, members of Congress, agencies, states and ordinary citizens have less and less an idea of what the Constitution means.

Perhaps most Americans are more comfortable with justices like O’Connor deciding the hard questions, making the compromises and splitting the differences over policy. But that is what our legislators and presidents are for. Judges have to make the tough calls.