Editing Sandra Day O'Connor (section)

===Supreme Court jurisprudence===

[[File:O'ConnorGonzalesCloseUp.jpg|thumb|right|upright|Justice O'Connor presents [[Alberto Gonzales]] to the audience after swearing him in as [[U.S. Attorney General]], as Becky Gonzales looks on.]]
Initially, O'Connor's voting record aligned closely with the conservative [[William Rehnquist]] (voting with him 87% of the time during her first three years at the Court).<ref>{{harvp|Greenburg|2007|p=68}}</ref> From that time until 1998, O'Connor's alignment with Rehnquist ranged from 93.4% to 63.2%, hitting above 90% in three of those years.<ref name="la times">{{cite web |last=Schwartz |first=Herman |date=April 12, 1998 |url=https://www.latimes.com/archives/la-xpm-1998-apr-12-op-38686-story.html |title=O'Connor as a 'Centrist'? Not When Minorities Are Involved |work=[[Los Angeles Times]] |access-date=February 18, 2020 |archive-date=June 8, 2016 |archive-url=https://web.archive.org/web/20160608082707/http://articles.latimes.com/1998/apr/12/opinion/op-38686 |url-status=live }}</ref> In nine of her first 16 years on the Court, O'Connor voted with Rehnquist more than with any other justice.<ref name="la times"/>

Later on, as the Court's make-up became more conservative (e.g., [[Anthony Kennedy]] replacing [[Lewis F. Powell Jr.|Lewis Powell]], and [[Clarence Thomas]] replacing [[Thurgood Marshall]]), O'Connor often became the [[swing vote]] on the Court. However, she usually disappointed the Court's more liberal bloc in contentious 5–4 decisions: from 1994 to 2004, she joined the traditional conservative bloc of Rehnquist, [[Antonin Scalia]], [[Anthony Kennedy]], and Thomas 82 times; she joined the liberal bloc of [[John Paul Stevens]], [[David Souter]], [[Ruth Bader Ginsburg]], and [[Stephen Breyer]] only 28 times.<ref>{{cite journal |url=http://www.harvardlawreview.org/issues/118/Nov04/Nine_Justices_Ten_YearsFTX.pdf |title=Nine Justices, Ten Years: A Statistical Retrospective |journal=[[Harvard Law Review]] |publisher=[[Harvard University]] |location=Cambridge, Massachusetts |volume= 118 |number=1 |page=521 |date=November 2004 |access-date=August 31, 2011 |archive-url=https://web.archive.org/web/20060327053526/http://www.harvardlawreview.org/issues/118/Nov04/Nine_Justices_Ten_YearsFTX.pdf |archive-date=March 27, 2006}}</ref>

O'Connor's relatively small<ref name="wash post">{{cite news |url=https://www.washingtonpost.com/wp-dyn/articles/A14368-2004Oct31.html |title=Justices Too Tightlipped on Their Health? |first=Charles |last=Lane |date=November 1, 2004 |page=A19 |newspaper=[[The Washington Post]] |access-date=December 19, 2010 |archive-date=May 1, 2011 |archive-url=https://web.archive.org/web/20110501115823/http://www.washingtonpost.com/wp-dyn/articles/A14368-2004Oct31.html |url-status=live }}</ref> shift away from conservatives on the Court seems to have been due at least in part to Thomas' views.<ref>{{harvp|Greenburg|2007|pp=122–123}}</ref> When Thomas and O'Connor were voting on the same side, she would typically write a separate opinion of her own, refusing to join his.<ref>{{harvp|Greenburg|2007|pp=123, 134}}</ref> In the 1992 term, O'Connor did not join a single one of Thomas's dissents.<ref>{{harvp|Greenburg|2007|p=123}}</ref>

Some notable cases in which O'Connor joined the majority in a 5–4 decision were:
* ''[[McConnell v. FEC]]'', {{ussc|540|93|2003}}, upholding the constitutionality of most of the [[Bipartisan Campaign Reform Act|McCain-Feingold campaign-finance bill]] regulating "[[Campaign finance in the United States#Terminology, definitions|soft money]]" contributions.<ref>{{Cite web|url=https://www.aclu.org/other/cases-which-sandra-day-oconnor-cast-decisive-vote|title=Cases in Which Sandra Day O'Connor Cast the Decisive Vote|website=[[American Civil Liberties]] Union|language=en|access-date=April 21, 2019|archive-date=April 21, 2019|archive-url=https://web.archive.org/web/20190421035447/https://www.aclu.org/other/cases-which-sandra-day-oconnor-cast-decisive-vote|url-status=live}}</ref>
* ''[[Grutter v. Bollinger]]'', {{ussc|539|306|2003}} and ''[[Gratz v. Bollinger]]'', {{ussc|539|244|2003}}, O'Connor wrote the opinion of the Court in ''Grutter'' and joined the majority in ''Gratz''. In this pair of cases, the [[University of Michigan]]'s undergraduate admissions program was held to have engaged in unconstitutional [[reverse discrimination]], but the more limited type of [[affirmative action]] in the [[University of Michigan Law School]]'s admissions program was held to have been constitutional.
* ''[[Lockyer v. Andrade]]'', {{ussc|538|63|2003}}: O'Connor wrote the majority opinion, with the four conservative justices concurring, that a 50-year to life sentence without parole for petty shoplifting a few children's videotapes under California's three strikes law was not [[cruel and unusual punishment]] under the [[Eighth Amendment to the United States Constitution|Eighth Amendment]] because there was no "clearly established" law to that effect. Leandro Andrade, a Latino nine-year Army veteran and father of three, will be eligible for parole in 2046 at age 87.
* ''[[Zelman v. Simmons-Harris]]'', {{ussc|536|639|2002}}, O'Connor joined the majority holding that the use of [[school voucher]]s for religious schools did not violate the [[First Amendment]]'s [[Establishment Clause]].
* ''[[United States v. Lopez]]'', {{ussc|514|549|1995}}: O'Connor joined a majority holding unconstitutional the [[Gun-Free School Zones Act]] as beyond Congress' [[Commerce Clause]] power.
* ''[[Bush v. Gore]]'', {{ussc|531|98|2000}}, O'Connor joined with four other justices on December 12, 2000, to rule on the ''Bush v. Gore'' case that ceased challenges to the results of the [[2000 United States presidential election|2000 presidential election]] (ruling to stop the ongoing [[Florida election recount]] and to allow no further recounts). This case effectively ended [[Al Gore]]'s hopes to become president. Some legal scholars have argued that she should have recused herself from this case, citing several reports that she became upset when the media initially announced that Gore had won Florida, with her husband explaining that they would have to wait another four years before retiring to Arizona.<ref name="Neumann">{{Cite journal | first=Richard K. Jr. |last=Neumann |title=Conflicts of interest in Bush v. Gore: Did some justices vote illegally? |url=http://findarticles.com/p/articles/mi_qa3975/is_200304/ai_n9221306 |archive-url=https://web.archive.org/web/20060615061559/http://www.findarticles.com/p/articles/mi_qa3975/is_200304/ai_n9221306 |url-status=dead |archive-date=June 15, 2006 |journal=[[Georgetown Journal of Legal Ethics]] |publisher=[[Georgetown University]]|location=Washington D.C.|date=Spring 2003 |page=34}}</ref> O'Connor expressed surprise that the decision became controversial.<ref name="vanityfair.com">{{Cite magazine|url=https://www.vanityfair.com/news/2004/10/florida-election-2000|title=Behind the aftermath of the 2000 U.S. election|first=David|last=Margolick|magazine=[[Vanity Fair (magazine)|Vanity Fair]]|date=March 19, 2014|access-date=July 3, 2019|archive-date=January 26, 2021|archive-url=https://web.archive.org/web/20210126114100/http://www.vanityfair.com/news/2004/10/florida-election-2000|url-status=live}}</ref> Some people in Washington stopped shaking her hand after the decision, and [[Arthur Miller]] confronted her about it at the [[Kennedy Center]].<ref name="vanityfair.com"/>

O'Connor played an important role in other notable cases, such as:
* ''[[Webster v. Reproductive Health Services]]'', {{ussc|492|490|1989}}: This decision upheld as constitutional state restrictions on second trimester abortions that are not necessary to protect maternal health, contrary to the original trimester requirements in ''[[Roe v. Wade]]''. Although O'Connor joined the majority, which also included Rehnquist, Scalia, Kennedy, and [[Byron White]], in a concurring opinion she refused to explicitly overturn ''Roe''.

On February 22, 2005, with Rehnquist and Stevens (who were senior to her) absent, she became the senior justice presiding over oral arguments in the case of ''[[Kelo v. City of New London]]'' and becoming the first woman to do so before the Court.<ref>{{cite web |last1=Glass |first1=Andrew |title=Senate confirms first female Supreme Court justice, Sept. 21, 1981 |url=https://www.politico.com/story/2016/09/senate-confirms-first-female-supreme-court-justice-sept-21-1981-228285 |date=September 21, 2016 |website=[[Politico]] |access-date=March 15, 2020 |archive-date=August 6, 2020 |archive-url=https://web.archive.org/web/20200806233501/https://www.politico.com/story/2016/09/senate-confirms-first-female-supreme-court-justice-sept-21-1981-228285 |url-status=live }}</ref>

====First Amendment====
O'Connor was unpredictable in many of her court decisions, especially those regarding First Amendment [[Establishment Clause]] issues. Barry Lynn, executive director of [[Americans United for Separation of Church and State]], said, "O'Connor was a conservative, but she saw the complexity of church-state issues and tried to choose a course that respected the country's religious diversity" (Hudson 2005). O'Connor voted in favor of religious institutions, such as in ''[[Rosenberger v. University of Virginia]]'' (1995), ''[[Mitchell v. Helms]]'' (2000), and ''[[Zelman v. Simmons-Harris]]'' (2002). Conversely, in ''[[Lee v. Weisman]]'' she was part of the majority in the case that saw religious prayer and pressure to stand in silence at a graduation ceremony as part of a religious act that coerced people to support or participate in religion, which the Establishment Clause strictly prohibits. This is consistent with a similar case, ''[[Santa Fe Independent School District v. Doe]]'', involving prayer at a school football game. In this case, O'Connor joined the majority opinion that stated prayer at school football games violates the Establishment Clause. O'Connor was the first justice to articulate the "no endorsement" standard for the Establishment Clause.<ref name="S.M.-2013">{{Cite news|url=https://www.economist.com/blogs/democracyinamerica/2013/10/religious-liberty-and-supreme-court|title=Endorsing the endorsement test|last=S.M.|date=October 8, 2013|newspaper=[[The Economist]]|access-date=June 21, 2017|archive-date=December 20, 2016|archive-url=https://web.archive.org/web/20161220144859/http://www.economist.com/blogs/democracyinamerica/2013/10/religious-liberty-and-supreme-court|url-status=live}}</ref> In ''[[Lynch v. Donnelly]]'', O'Connor signed onto a five-justice majority opinion holding that a nativity scene in a public Christmas display did not violate the First Amendment. She penned a concurrence in that case, opining that the crèche did not violate the Establishment Clause because it did not express an endorsement or disapproval of any religion.<ref name="S.M.-2013" /> In ''Board of County Commissioners, Wabaunsee County, Kansas v Umbehr'' (1996) she upheld the application of first amendment free speech rights to independent contractors working for public bodies, being unpersuaded "that there is a 'difference of constitutional magnitude' ... between independent contractors and employees" in circumstances where a contractor has been critical of a governing body.<ref>[https://www.law.cornell.edu/supct/html/94-1654.ZO.html Board of County Commissioners, Wabaun See County, Kansas, Petitioner v Keen A. Umbehr], 28 June 1996, accessed 18 February 2024</ref>

==== Fourth Amendment ====
According to law professor [[Jeffrey Rosen (legal academic)|Jeffrey Rosen]], "O'Connor was an eloquent opponent of intrusive group searches that threatened privacy without increasing security. In a [[United States v. Place|1983 opinion]] upholding searches by drug-sniffing dogs, she recognized that a search is most likely to be considered [[Fourth Amendment to the United States Constitution|constitutionally reasonable]] if it is very effective at discovering [[contraband]] without revealing ''innocent but embarrassing'' information."<ref>{{cite news |author-link=Jeffrey Rosen (legal academic) |last=Rosen |first=Jeffrey |date=November 28, 2010 |url=https://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.html |title=The TSA is invasive, annoying&nbsp;– and unconstitutional |newspaper=[[The Washington Post]] |access-date=August 22, 2017 |archive-date=December 5, 2010 |archive-url=https://web.archive.org/web/20101205063930/https://www.washingtonpost.com/wp-dyn/content/article/2010/11/26/AR2010112604290.html |url-status=live }}</ref> [[Washington College of Law]] professor Andrew Taslitz, referencing O'Connor's [[Atwater v. City of Lago Vista#Dissenting opinion|dissent]] in a [[Atwater v. City of Lago Vista|2001 case]], said of her [[Fourth Amendment to the United States Constitution|Fourth Amendment]] jurisprudence: "O'Connor recognizes that needless humiliation of an individual is an important factor in determining Fourth Amendment reasonableness."<ref>{{cite book |url=https://books.google.com/books?id=GOpW_DdlMSIC&q=o%27connor+%22fourth+amendment%22&pg=PA83 |page=83 |title=Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789–1868 |isbn=978-0814783153 |last1=Taslitz |first1=Andrew E. |date=October 1, 2006 |publisher=[[NYU Press]] |location=New York City |access-date=November 20, 2020 |archive-date=November 8, 2021 |archive-url=https://web.archive.org/web/20211108151021/https://books.google.com/books?id=GOpW_DdlMSIC&q=o%27connor+%22fourth+amendment%22&pg=PA83 |url-status=live }}</ref> O'Connor once quoted the [[social contract theory]] of [[John Locke]] as influencing her views on the reasonableness and constitutionality of government action.<ref>{{cite web |url=http://www.utahpatentattorneys.com/File/c2c851b5-8b2b-4dfb-b1b7-ff7ba1ead084 |title=Regula Pro Lege, Si Deficit Lex: The Latin Sapience of High Judges |access-date=November 17, 2016 |work=[[The Federal Bar Association]] |archive-date=November 19, 2016 |archive-url=https://web.archive.org/web/20161119120343/http://www.utahpatentattorneys.com/File/c2c851b5-8b2b-4dfb-b1b7-ff7ba1ead084 |url-status=live }}</ref>

====Cases involving race====
In ''[[McCleskey v. Kemp]]'' (1987), O'Connor joined a 5–4 majority that voted to uphold the death penalty for an African American man, Warren McCleskey, convicted of killing a white police officer, despite statistical evidence that Black defendants were more likely to receive the death penalty than others both in Georgia and in the U.S. as a whole.<ref name="la times" /><ref>{{cite encyclopedia |url=http://www.georgiaencyclopedia.org/nge/Article.jsp?path=/GovernmentPolitics/Government/LegalCases&id=h-2933 |title=McCleskey v. Kemp |encyclopedia=[[New Georgia Encyclopedia]] |access-date=November 8, 2021 |archive-date=May 14, 2013 |archive-url=https://web.archive.org/web/20130514024725/http://www.georgiaencyclopedia.org/nge/Article.jsp?path=%2FGovernmentPolitics%2FGovernment%2FLegalCases&id=h-2933 |url-status=live }}</ref><ref>David Baldus, et al., "In The Post-Furman Era: An Empirical And Legal Overview, With Recent Findings From Philadelphia", 83 ''Cornell Law Rev.'' 1638 (1998)</ref>

In the 1990 and 1995 ''[[Missouri v. Jenkins]]'' rulings, O'Connor voted with the majority that Federal district courts had no authority to require the state of Missouri to increase school funding to counteract racial inequality. In the 1991 case ''Freeman v. Pitts'', O'Connor joined a concurring opinion in a plurality, agreeing that a school district that had formerly been under judicial review for [[racial segregation]] could be freed of this review, even though not all [[desegregation]] targets had been met. Law professor Herman Schwartz criticized these rulings, writing that in both cases "both the fact and effects of segregation were still present".<ref name="la times" />

In 1996's ''[[Shaw v. Hunt]]'' and ''[[Shaw v. Reno]]'', O'Connor joined a Rehnquist opinion, following an earlier precedent from an opinion she authored in 1993, in which the Court struck down an electoral districting plan designed to facilitate the election of two Black representatives out of 12 from North Carolina, a state that had not had any Black representative since [[Reconstruction era|Reconstruction]], despite being approximately 20% Black<ref name="la times" />{{snd}}the Court held that the districts were unacceptably [[gerrymander]]ed and O'Connor called the odd shape of the district in question, [[North Carolina's 12th congressional district|North Carolina's 12th]], "bizarre".<ref>{{Cite web |title=Shaw v. Reno, 509 U.S. 630 (1993) |url=https://supreme.justia.com/cases/federal/us/509/630/ |access-date=December 1, 2023 |website=Justia Law |language=en |archive-date=December 1, 2023 |archive-url=https://web.archive.org/web/20231201040827/https://supreme.justia.com/cases/federal/us/509/630/ |url-status=live }}</ref>

Law professor Herman Schwartz called O'Connor "the Court's leader in its assault on racially oriented [[affirmative action]]",<ref name="la times"/> although she joined with the Court in upholding the constitutionality of limited race-based admissions to universities.<ref name="presidential leadership"/>

In 2003, O'Connor authored a majority Supreme Court opinion (''[[Grutter v. Bollinger]]'') saying racial affirmative action should not be constitutional permanently, but long enough to correct past discrimination{{snd}}with an approximate limit of around 25 years.<ref>{{citation |url=http://www.hlrecord.org/2.4463/justice-o-connor-affirmative-action-should-continue-1.577502 |archive-url=https://archive.today/20120118081933/http://www.hlrecord.org/2.4463/justice-o-connor-affirmative-action-should-continue-1.577502 |archive-date=January 18, 2012 |title=Justice O'Connor: affirmative action should continue |access-date=March 9, 2012 }}</ref>

====Abortion====
The [[Christian right]] element in the Reagan coalition strongly supported him in 1980, in the belief that he would appoint Supreme Court justices to overturn ''[[Roe v. Wade]]''. They were astonished and dismayed when his first appointment was O'Connor, who they feared would tolerate abortion. They worked hard to defeat her confirmation but failed.<ref>{{cite journal|first=Prudence|last=Flowers|title='A Prolife Disaster': The Reagan Administration and the Nomination of Sandra Day O'Connor|journal=[[Journal of Contemporary History]]|publisher=[[SAGE Journals]]|location=Thousand Oaks, California|volume=53|issue=2|date=January 2019|pages=391–414|doi=10.1177/0022009417699865 |s2cid=159917418 }}</ref> In her confirmation hearings and early days on the Court, O'Connor was carefully ambiguous on the issue of abortion, as some conservatives questioned her [[anti-abortion]] credentials based on some of her votes in the Arizona legislature.<ref name="greenburg 222"/> O'Connor generally dissented from 1980s opinions which took an expansive view of ''Roe v. Wade''; she criticized that decision's "trimester approach" sharply in her dissent in ''[[City of Akron v. Akron Center for Reproductive Health]]'' (1983). She criticized ''Roe'' in ''[[Thornburgh v. American College of Obstetricians and Gynecologists]]'' (1986): "I dispute not only the wisdom but also the legitimacy of the Court's attempt to discredit and pre-empt state abortion regulation regardless of the interests it serves and the impact it has."<ref name="Greenhouse, Becoming Justice Blackmun"/> In 1989, O'Connor stated during the deliberations over the ''Webster'' case that she would not overrule ''Roe''.<ref>{{harvp|Greenburg|2007|p=80}}</ref> While on the Court, O'Connor did not vote to strike down any restrictions on abortion until ''[[Hodgson v. Minnesota]]'' in 1990.<ref name="Greenhouse, Becoming Justice Blackmun">{{cite book | first = Linda | last = Greenhouse | author-link = Linda Greenhouse | title = Becoming Justice Blackmun | publisher = [[Times Books]] | location=New York City |year = 2006 | isbn = 0805080570 | pages = 196–197}}</ref>

O'Connor allowed certain limits to be placed on access to abortion, but supported the right to abortion established by ''Roe''. In the landmark ruling ''[[Planned Parenthood v. Casey]]'' (1992), O'Connor used a test she had originally developed in ''City of Akron v. Akron Center for Reproductive Health'' to limit the holding of ''Roe v. Wade'', opening up a legislative portal where a State could enact measures so long as they did not place an "[[undue burden]]" on a woman's right to an abortion. ''Casey'' revised downward the standard of scrutiny federal courts would apply to state abortion restrictions, a major departure from ''Roe''. However, it preserved ''Roe''<nowiki/>'s core constitutional precept: that the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]] implies and protects a woman's fundamental right to control the outcomes of her reproductive actions. Writing the plurality opinion for the Court, O'Connor, along with Kennedy and Souter, famously declared: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State."<ref>''Planned Parenthood of Southeastern Pennsylvania v. Casey,'' 505 U.S. 833, 851 (1992).</ref>

====Commentary and analysis====
O'Connor's case-by-case approach routinely placed her in the center of the Court and drew both criticism and praise. ''[[Washington Post]]'' columnist [[Charles Krauthammer]], for example, described her as lacking a judicial philosophy and instead displaying "political positioning embedded in a social agenda."<ref>{{Cite news |title=Philosophy for a Judge |url=https://www.washingtonpost.com/wp-dyn/content/article/2005/07/07/AR2005070701898.html |newspaper=[[The Washington Post]] |first=Charles |last=Krauthammer |authorlink=Charles Krauthammer |access-date=November 18, 2005 |date=July 8, 2005 |archive-date=October 26, 2005 |archive-url=https://web.archive.org/web/20051026043126/http://www.washingtonpost.com/wp-dyn/content/article/2005/07/07/AR2005070701898.html |url-status=live }}</ref> Conservative commentator [[Ramesh Ponnuru]] wrote that, even though O'Connor "has voted reasonably well", her tendency to issue very case-specific rulings "undermines the predictability of the law and aggrandizes the judicial role."<ref>{{Cite news|title=Sandra's Day|url=http://www.nationalreview.com/flashback/ponnuru200507011211.asp|archive-url=https://web.archive.org/web/20050911141328/http://www.nationalreview.com/flashback/ponnuru200507011211.asp|url-status=dead|archive-date=September 11, 2005|access-date=March 18, 2007|first=Ramesh|last=Ponnuru|authorlink=Ramesh Ponnuru|work=[[National Review]]|date=June 30, 2003}}</ref>

Law clerks serving the Court in 2000 speculated that the decision she reached in ''Bush v. Gore'' was based on a desire to appear fair, rather than on any legal rationale, pointing to a memo she sent out the night before the decision was issued that used entirely different logic to reach the same result. They also characterized her approach to cases as deciding on "gut feelings".<ref name="vanityfair.com"/>