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Sandra Day O’Connor: the linchpin of the 2002-2003 term. In the annals of the Rehnquist Supreme Court, June 26 will stand apart from any other day — as counterintuitive, almost otherworldly. In rapid-fire announcements from the bench, the justices seemed to travel back in time to the days of the Warren Court. The Court handed down decisions that supported the interests of sex offenders, homosexuals, Democrats, death row inmates, and consumer advocates — none of them the typical beneficiaries of the Rehnquist Court. When looking back at the decision making for the 2002 — 2003 term, it is hard to decide what mode the Court was in — except to say that it seemed bent on upending the expectations of those who watch and analyze it. After nine years of togetherness, it was as if the justices became restless and decided to rearrange the furniture, at least temporarily. As recently as last year, most observers thought that the key legacies of the Rehnquist Court were its support of states in the federalism divide, its reining in of Congress, its support of the First Amendment, and, whenever possible, its avoidance of deciding hot-button social issues. None of those Rehnquist pillars toppled this term — but they also did not grow. Many analysts attributed the term’s idiosyncratic trends to the dominance of Justice Sandra Day O’Connor and her brand of pragmatic, almost legislative, problem solving. O’Connor was in the majority of all 13 of the term’s clear-cut 5-to-4 decisions. Florida International University law professor Thomas Baker sees O’Connor as a legal realist. She uses her vote to express her “attitudinal preferences in close cases to seek compromise,” he says. Assessing O’Connor’s crucial influence on the current Court, Thomas Goldstein of Washington, D.C.’s Goldstein & Howe says that her retirement would mean “thermonuclear war.” O’Connor’s centrist approach, as much as any other factor, may explain why many of the Court’s trends seemed to stall this term. “Outside of the criminal law area, we don’t have a particularly conservative Court,” says Northwestern University School of Law professor John McGinnis. “They stand by their precedents.” Except, as it turned out, on June 26, when it came to gay rights. Unflinchingly, and with disdain for its 1986 precedent Bowers v. Hardwick, the Court responded to — some critics say overestimated — society’s growing acceptance of homosexuality. In Lawrence and in Grutter v. Bollinger, which upheld affirmative action, the Court showed no reluctance to plant itself in the middle of what Justice Antonin Scalia derisively called America’s “culture wars.” This social boldness contrasts sharply with the Rehnquist Court’s usual deference to the elected branches in resolving knotty policy problems. Indeed, to some, O’Connor’s majority opinion in Grutter has the tone of a legislative enactment, adopting the University of Michigan Law School’s affirmative action program with what amounts to a sunset provision. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote. “There is a focus group, finger-to-the-wind quality to it,” says Emory University School of Law professor David Garrow. “It’s a good public policy solution, but, I think, not very good judicially.” On federalism, this was a term in which the Rehnquist Court’s revolution stood still. In a recent speech Justice Ruth Bader Ginsburg said, “Federalism was the dog that did not bark.” Congress fared relatively well this term, finding fewer of its enactments tossed out by the Court. According to O’Melveny’s Klain, the headline is O’Connor’s role. Noting that O’Connor did not author a single dissent all term, Klain says, “It really was O’Connor’s term. If we didn’t have the tradition of naming courts after the chief justice, this would be the O’Connor Court.” A version of this story originally appeared in Legal Times, a sibling publication of Corporate Counsel and part of American Lawyer Media.

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