Justice O'Connor's legacy
JUSTICE SANDRA Day O'Connor's announcement yesterday that she is stepping down from the Supreme Court is perhaps the most significant decision involving the judiciary of the last quarter-century. Appointed by President Ronald Reagan in 1981, O'Connor was the first woman on the court.
She came to the court with great expectations as a conservative and a pragmatist. Unlike prior justices, she had spent time in politics as a legislator, and in the judicial arena in Arizona as a judge on the state courts. Accordingly, her pragmatic approach to legal issues confounded her critics, who frequently accused her of veering from the actual words of the Constitution to reach results in certain cases; yet, she was praised by others who welcomed her moderating influence on the Supreme Court.
While it is impossible here to catalog the significant judicial opinions by O'Connor over the past 24 years, it is worth noting that she has been the swing vote on many significant and controversial issues including gender and race. She has affectionately and disparagingly been referred to as a ''majority of one", in not allowing others to place her in a liberal or conservative box.
Her life experiences have certainly influenced her judicial philosophy, and pragmatism. Considering herself to be a ''cow girl" from Arizona, she has consistently stood up to challenges of all sorts. This is hardly surprising, given her own experiences and background. Although O'Connor was one of the top graduates of Stanford Law School (in the same class as Chief Justice William Rehnquist), she was not offered a position at a major law firm in California because of her gender. Ironically, she was finally hired, not as a lawyer, but as a legal secretary, before finally, as a result of the consistently high quality of her work, being promoted to a position as a lawyer. That influenced her thinking about issues of gender equality, and her significance on the Court as a woman who understood these issues helped to advance the rights of women in significant ways.
One of the pivotal ways in which O'Connor protected women's rights was in the surprising 1992 decision of Casey v. Planned Parenthood. O'Connor was part of a coalition, with Justices Anthony Kennedy and David Souter -- three conservative jurists, appointed by a Republican president, who chose not to overrule Roe v. Wade, but to recognize its continuing value, even though it had been consistently and sharply criticized by legal scholars, public officials, religious groups, and members of the public for two decades.
Another area in which O'Connor had profound influence, and where her views have actually evolved, is in the area of race. From the moment she joined the court, she consistently expressed skepticism of any racial classification, and has been a reliable vote for those who opposed minority set-asides, majority and minority redistricting plans, or even affirmative action goals. In the noteworthy opinions of Adarand v. Pena, Croson v. City of Richmond, and Johnson v. Transportation Agency, her voice was one of skepticism regarding how race could and should be properly used as a vehicle to promote equality without discriminating against non-minorities.
Perhaps the most significant opinion issued by O'Connor was the majority opinion in Grutter v. Bollinger. In a hotly contested 5-4 decision, she O'Connor upheld Michigan Law School's affirmative action program, including that the arguments made by the university, as well as the positive experiences of corporations and the military, suggested that diversity was an acceptable principle to justify consideration of race as one among many factors.
She observed, ''Justice Powell emphasized that nothing less than the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples," and went on to rule, ''We have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. . . today we hold that the Law School has a compelling interest in attaining a diverse student body."
At the same time, O'Connor went further, expressing her reservations about whether, and to what extent, affirmative action should continue, noting that, ''We expect that 25 years from now, the use of racial preferences will no longer be necessary." Thus, not only did we have a clear sense of what she would uphold, but also her sense about limitations of such doctrines.
In describing her judicial philosophy in her book, ''The Majesty of the Law," O'Connor observed, ''It is an essential safeguard of the liberties and rights of the people. It allows for the defense of human rights and the protection of innocence. It embodies the hope that impartial judges will impart wisdom and fairness when they decide the cases that come before them."
In the final analysis, O'Connor will be remembered as someone who took her job seriously, weighing the interests of each litigant carefully, and trying to reach outcomes that were consistent with the Court's responsibility to promote the rule of law.
As the battle begins for her replacement, it is clear that her successor is unlikely to be a consensus-builder, but someone that will probably create even more fracture, and even less cohesiveness, among the remaining justices. Only time will tell how important her legacy will be in the way we think about the role of the Supreme Court in ensuring equal justice for all.
Charles J. Ogletree, Jr. is Jesse Climenko Professor of Law and founding and executive director of the Charles Hamilton Houston Institute of Race & Justice at Harvard Law School. 
