Law: Establishing Her Independence

During the nearly five years since she took her place on the high bench, Justice Sandra Day O'Connor has provided a reasonably dependable third vote for the U.S. Supreme Court's conservative wing. In a number of crucial cases, however, O'Connor has begun to split from her usual allies, Chief Justice Warren Burger and William Rehnquist, and has sometimes cast the decisive vote that yields a liberal result. Says Michael McDonald, general counsel of the conservative American Legal Foundation: "I wonder if she is traveling the route blazed by Justice Blackmun." Harry Blackmun, who moved from a close identification with the Chief Justice to join the court's shifting centrists, has also noted O'Connor's passage. "In certain areas," he told a meeting of federal judges last summer, "she is becoming somewhat independent and her own woman."

An intriguing example of O'Connor's independence came last week. Normally a strong supporter of police and prosecutors, she joined in a pair of significant rulings that strengthened the rights of black defendants (see box). One week earlier she astonished some court watchers by writing the majority opinion in a 5-to-4 libel decision requiring that in cases involving public concerns, private individuals must prove that damaging press assertions about them are false.

With many of the most difficult cases of this term still pending, it is too soon to measure clearly how much she is setting herself apart from the other conservatives. But in the words of former Solicitor General Rex Lee, who has known O'Connor since both practiced law in Arizona, "After four or five years, many members of the court feel a greater sense of self-confidence and assert themselves more. We're seeing evidence of that in her now."

One example: even when she agrees with the majority, she increasingly carves out her own position. She wrote eleven concurrences in the court's last term, second only to William Brennan's 14. Some of those helped establish her influence on the thinking of her fellow Justices--for example, in constitutional questions regarding religion. Thus two years ago, she joined a 5-to-4 majority upholding the constitutionality of a town-sponsored Nativity scene in Rhode Island. With reasoning that Yale Law Professor Paul Gewirtz calls "extremely elegant," she sought in a concurring opinion to draw a line between government actions that accommodate religion and those that endorse it. Her thinking was later used by Justice John Paul Stevens to help support the majority's view in another religion case.