The Power Broker

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Abortion has been another key part of O'Connor's legacy--and another way to understand her careful navigation as an interpreter of the Constitution. In an important 1983 test of the limits of Roe v. Wade, for example, she voted to support an Ohio law requiring a 24-hour waiting period for women who want to have abortions. In her minority opinion, she pleased conservatives by writing that Roe as written was on shaky ground. But she didn't say it should be overturned. In a 1989 case she explicitly rejected an attempt to overturn Roe, but said restrictions on abortion were fine as long as they didn't place an undue burden on the right to choice. And most important, in 1992, that "undue burden" test became the court's yardstick for measuring abortion restrictions in the majority opinion O'Connor co-authored. Though it weakened Roe's standard for analyzing limitations on first-trimester abortions, Roe still stands.

O'Connor's history on abortion is a perfect example of the minimalism to which Sunstein refers: Don't throw the precedent out entirely; don't endorse it uncritically, but define the circumstances where it applies. In finely tuned opinions for religion cases, O'Connor measured whether government support of, say, school prayer or vouchers amounted to an unconstitutional "endorsement" of religion. The Pledge of Allegiance's "under God" phrase passed her test; displaying the Ten Commandments on public property did not. That kind of approach is also evident in her handling of affirmative action. O'Connor was as allergic to quotas as any true conservative, but she found it acceptable for government to consider race as one of many factors in making decisions. In the late 1980s she wrote an opinion striking down a law in Richmond, Va., that tried to boost the minuscule percentage of city contracts going to minority-owned firms. And in the '90s, O'Connor voted against redrawing the lines of congressional districts to benefit minorities. But she was also the Justice who cast the fifth and deciding vote in a 2003 decision upholding the right of the University of Michigan's law-school-admissions policy to consider race as a factor.

Meanwhile, her awareness of real-world politics and her sense that the court shouldn't diverge too sharply from popular opinion were especially apparent in O'Connor's death-penalty votes. In 1989 she wrote the majority opinion allowing capital punishment of the mentally retarded, saying a "national consensus" that the practice was wrong had not yet formed. But by 2002 she was convinced things had changed and voted with the majority to end it. It was just the kind of switch that made the court's more doctrinaire conservatives nuts: "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," Associate Justice Antonin Scalia sniffed in a dissent. This year, though, O'Connor didn't join the majority of the court in putting an end to the death penalty for juveniles, again citing the national consensus rationale.