Back in 2005 when Sandra Day O’Connor stepped down from her seat at the Supreme Court, Georgetown University professor Martin Lederman composed a now famous list of 31 cases that might have been decided differently had Samuel Alito been on the court rather than Sandra Day O’Connor; precedents that might be ripe for overruling or cutting back if and when the issue again came before the court after George W. Bush replaced her. In updating that list over the years, Lederman refined his argument and expanded it. In at least five critically important areas of constitutional law, in particular, O’Connor’s almost quarter-century legacy of middle-of-the-road pragmatism could be dismantled, Lederman predicted.
The five main constitutional areas Lederman identified were abortion, affirmative action, campaign finance reform, church/state entanglement, and congressional power to remedy discrimination. By June 2008, Lederman noticed that in three of the five—abortion, affirmative action and campaign finance reform—O’Connor’s legal architecture had already been largely eroded. In a piece published that same year in USA Today, Joan Biskupic made the same point, noting that in just three years the Roberts Court had already shifted course on abortion by upholding a ban on so-called partial birth abortion that sidestepped a 2000 O'Connor opinion requiring exceptions to protect the health of the mother. The court had retreated on integration by making it difficult for public school districts to reassign students to different schools to achieve racial diversity, chipping away at a 2003 affirmative action compromise reached by O’Connor. Finally, Biskupic noted that the Roberts Court had already fundamentally “altered its approach to campaign finance law,” and was now protecting election donations as a form of free speech.
As the October 2013 term opens at the court, all of these five areas of O’Connor‘s legal worldview are represented on the docket, which is still not yet complete. The justices will hear a crucial campaign finance case, a case involving state-sanctioned prayer, and an affirmative action case from Michigan. There will also be a Fair Housing Act case looking at disparate impact in housing, in which some justices might call into question the scope of Congress’ power to prohibit private discrimination. The court might also hear a case challenging an abortion restriction, depending on how the Supreme Court of Oklahoma construes the law. This term may not hold out the promise of blockbusters like last year’s same-sex marriage cases or the Voting Rights Act challenge (or the still-traumatizing Obamacare challenge from the year before). But it may nevertheless end up standing for the final demise of the O’Connor legacy.
O’Connor was the court’s great compromiser, the justice who worried perhaps too obsessively about how, as professor RonNell Andersen Jones once put it, “a decision from the Court in one direction or the other would impact actual people, actual businesses, and actual governmental institutions in the country.” She needed government to work, and her constitutional world was often peopled by the ghosts of the sensible, reasonable outsiders and outliers; those she mysteriously channeled as she worked out practical solutions to theoretical problems on a case-by-case basis. That sort of reasonable ghost has all but disappeared this fall, at the court and in Congress as well. It’s probably an apt moment, then, to mourn the demise of O’Connor’s sometimes crazy-making pragmatic centrism, mirrored by the collapse—courtesy of the debt ceiling crisis and a government shutdown—of the very same quality in Congress and the rest of government.
Here’s a rundown of these big cases, and the implications for the legal universe as O’Connor created it:
CAMPAIGN FINANCE REFORM:
McCutcheon v. Federal Election Commission is a potential follow-on to the infamous 2009Citizens United decision, which gutted certain provisions of the McCain–Feingold campaign finance reform law. The new iteration challenges the provision limiting the “aggregate” amount any person can directly contribute directly to candidates for federal office, political parties and political committees. The amount is capped at $123,000 in any two-year election cycle. As Richard Hasen explains here, McCutcheon could well be “the beginning of the end of any limits on campaign contributions given directly to candidates in federal, state, and local elections.” If the court’s five conservatives choose, the case may signal the end of the constitutional distinction between how the court views contribution limits (which are easier to uphold) and spending limits (they’ve been treated as a clearer First Amendment violation).
In 2003, it was O’Connor who saved the constitutionality of the McCain–Feingold campaign finance law. And when O’Connor was replaced by Samuel Alito, the court began to chisel away at campaign finance reform, first in 2007, and then again in Citizens United in 2010. The replacement of O’Connor with Alito meant that the court has simply shifted to a 5–4 majority that is generally hostile to the notion of regulating money in politics.
The court will hear one, and possibly two, abortion-related cases this term. The first, McCullen v. Coakley, is really a free speech case that implicates abortion. The second—which isn’t squarely on the docket yet—involves medical abortions, as opposed to surgical ones. In McCullen, abortion protesters challenged a Massachusetts law that makes it a crime to “enter or remain on a public way or sidewalk” within 35 feet of the entrance, exit, or driveway of a “reproductive health care facility.” Because the law does not apply to all health-care facilities, and because it exempts employees or agents of these clinics so long as they are acting within the “scope of their employment,” the protesters contend that it restricts only the free speech rights of abortion opponents, while privileging supporters (a classic viewpoint-based speech ban, if they’re right). An appeals court upheld the ban. This will be an opportunity for the court to revisit Hill v. Colorado, a 2000 case creating “bubbles” around abortion clinics. O’Connor voted with the majority to uphold such zones in that case.
The second case, Cline v. Oklahoma Coalition for Reproductive Justice, is a challenge to an Oklahoma law that prohibits the off-label use of abortion drugs, limiting abortion protocols to those the FDA approved for manufacturer promotion in 2000. As Emily Bazelon has explained here, by constraining physicians’ ability to prescribe anything that deviates from the old FDA protocol, it puts the state in the position of “ordering doctors to provide what they believe, based on the best medical evidence, is substandard care.” The Oklahoma Supreme Court opinion striking down the ban practically invited the U.S. Supreme Court to revisit Planned Parenthood v. Casey, the landmark (O’Connor-sanctioned) 1992 case reaffirming Roe v. Wade. O’Connor’s compromise test (crafted with Justices Anthony Kennedy and David Souter) bars states from imposing an “undue burden” on a woman seeking an abortion. It’s impossible to overstate the extent to which the erosion of the undue burden test would impact women seeking an abortion in this country. As Linda Greenhouse points out, we have already seen a remarkable decline in access to abortion, linked to Justice Kennedy’s decision for the court in Gonzales v. Carhart, the partial-birth abortion case. Whether there is anything meaningful remaining of that old O’Connor-endorsed test remains to be seen at the court. First, though, the Oklahoma Supreme Court has to weigh in again, to clarify what the state law actually prohibits.
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