September 21, 2012
According to a new book by journalist and legal commentator Jeffrey Toobin, Supreme Court Justice Antonin Scalia was “enraged” when Chief Justice John Roberts changed his vote, thereby creating the five Justice majority needed to uphold President Obama’s 2010 health care reform (the ACA).
This revelation echoes reports by CBS News that the Chief Justice did indeed switch his vote halfway through deliberations, and that the four remaining conservatives on the Court spent a month trying to bring him back to his original position.
Presumably, Scalia became “enraged” not only because it led to the survival of the ACA, but because Roberts had deviated from how everyone had predicted that he would vote.
Being able to safely predict how the Justices will vote on a certain issue has become much easier as of late, with most commentators agreeing that the Court’s Justices have become markedly more polarized in recent times.
Perhaps a good example of this polarization is the fact that Justice Anthony Kennedy is regarded as the Court’s “swing vote,” despite the fact that he only deviates from the conservative bloc less than a third of the time.
The last Supreme Court Justice to reliably view issues on a case-by-case basis, as opposed to immovably staking out hard-line ideological positions, was Sandra Day O’Connor, who officially joined the Court on September 21, 1981.
O’Connor is, of course, more widely known for being the first female Justice.
However, O’Connor is perhaps more notable – at least to attorneys and legal analysts – for her looking at every case with an open mind.
This trait is uncommon not just among Supreme Court Justices, but, as any practicing trial attorney will tell you, among trial court judges as well.
Despite her open-mindedness, O’Connor was undoubtedly conservative.
For example, she was the deciding conservative vote in several landmark rulings.
These include 2000’s Boy Scouts of America v. Dale, which upheld the organization’s right to discriminate based on sexual orientation and 2002’s Zelman v. Simmons-Harris, which upheld the constitutionality of the use of school vouchers for parochial and other religious schools.
And, of course, O’Connor was part of the five Justice majority in 2000’s Bush v. Gore.
One of the more interesting of these cases is Lawrence v. Texas, which struck down as unconstitutional state anti-sodomy laws.
O’Connor concurred in the judgment, but used an equal protection analysis instead of a substantive due process one.
Why is this distinction significant?
Because it would have ruled unconstitutional any law that denied a right to homosexuals that was given to heterosexuals – and thus would have created a stronger legal basis for striking down the federal Defense of Marriage Act.
O’Connor adds to this record of being a wild card with her guiding hand in several judicial compromises that ended up preserving major legal concepts typically aligned with a left-wing ideology.
For example, O’Connor, along with Justices Kennedy and David Souter, essentially saved the constitutional right to abortion in Planned Parenthood v. Casey (you can read more about the details in this post).
Without O’Connor’s presence on the bench, the Fisher ruling will send affirmative action into the same “unconstitutional” trash bin as the aforementioned anti-sodomy laws.
Speaking of which, O’Connor’s absence resulted in another major legal upheaval: Citizens United v. FEC.
O’Connor has bluntly criticized the decision publicly, and explicitly stated that she would have sided with the dissenters (thus, the ruling would have gone the other way).
With the replacement of O’Connor with Justice Samuel Alito, a much more predictably conservative jurist, the Supreme Court polarization seems all the more solidified.
And with the current political environment even more polarized than the current Court, another “wild card” Justice like Sandra Day O’Connor seems even more unlikely.
Perhaps, though, that allows one to appreciate O’Connor’s tenure all the more.