O’Connor’s Departure Could Mean Trouble

Justice Sandra Day O’Connor’s retirement deprives the Supreme Court of an influential voice and raises fresh questions about the direction the next court might take.

O’Connor is widely perceived as a swing vote on the nation’s highest court – a description she consistently sought to downplay – proving to be the fulcrum in a series of controversial 5-4 rulings.

It was O’Connor who wrote the majority opinion preserving the concept of affirmative action in a case regarding admissions standards at the University of Michigan in June 2003. She followed that up with a decision in April 2004 permitting the government to detain unlawful combatants imprisoned as a result of the war on terror but holding that detainees must have the ability to challenge their detention before an impartial judge _ a ruling that did not sit well with the Bush administration.

But perhaps most importently, in a 1992 case out of Pennsylvania, she avoided an opportunity to overturn Roe v. Wade, the 1973 case that affirmed a woman’s right to an abortion.

“Justice O’Connor fully earned her reputation as a centrist,” said Steven Shapiro, legal director for the American Civil Liberties Union. “She was a conscientious jurist and, in a number of key cases, stood up for individual rights and against a radically conservative vision of the Constitution.”

O’Connor’s successor becomes the pivot on which many decisions are determined. The next justice can determine the legal direction to be taken on the death penalty _ an issue that made O’Connor increasingly uneasy _ and certain aspects of the anti-terrorism Patriot Act. It’s also likely the court will visit, at some point, the president’s authority to detain Americans without charge in the name of national security.

Two cases scheduled for consideration in the next term already stand out.

The court has accepted a case revolving around the right to die. The Justice Department is challenging Oregon’s Death With Dignity Act, which permits doctors to prescribe lethal medications to terminally ill patients who seek to hasten their deaths. Former Attorney General John Ashcroft sought the court review, maintaining that only the federal government has the power to control dangerous substances like narcotics and can prohibit their use to cause death.

And there is a challenge to a 2003 New Hampshire law requiring abortion providers to notify the parents of a minor seeking to terminate a pregnancy about the procedure at least 48 hours before it is performed, even if a delay endangers the girl’s health. It marks the first time in five years that the court has agreed to hear an abortion case.

Both issues hold great importance to social conservatives who comprise President Bush’s political base. In both instances, it’s not a stretch to conclude that O’Connor would have served as a swing vote had she maintained her seat. Predictably, conservatives are urging Bush to nominate a replacement who will swing the court to the right. Liberals are warning against a recommendation that upsets the balance of power.

“Justice Sandra Day O’Connor’s pending retirement will create an opportunity for a return to a Supreme Court that is less activist on behalf of liberal values,” said Tom Fitton, president of Judicial Watch, a Washington-based legal watchdog group. “Whether it be in the areas of abortion, race quotas or the role of religion in our nation’s public life, Justice O’Connor’s jurisprudence has often been at odds with the plain meaning of the U.S. Constitution, morality and common sense.”

Nan Aron, president of Alliance for Justice, another Washington group that monitors the judicial appointment process, countered that Bush has the opportunity to “unite the country” by “selecting a moderate, consensus nominee.”

“Justice O’Connor’s replacement will help shape the future of our country,” Aron said. “Justice O’Connor has been a swing vote in significant cases involving voting rights, race and sex discrimination, privacy and reproductive rights, and criminal justice, and congressional authority to protect us all, to name a few. With her replacement, individual rights and freedoms hang in the balance.”

(E-mail Bill Straub at StraubB(at)shns.com.)