It was the first of eight opinions she would write for the Supreme Court in its 2004 term. It will be her last term. She will retire when a successor is nominated. As the most senior member of the court's press corps, let me bid her an affectionate farewell. The lady will be greatly missed.
In reporting her decision, the papers recalled an incident when she was sitting next to football celebrity John Riggins at a formal banquet 20 years ago. Riggins was in his cups.
"Loosen up, Sandy baby," he said, "you're too tight." Then he slid under the table.
We never saw her "too tight" at the court. On the bench, she could be persistent in questioning counsel, but she never exhibited the rudeness that marked another female justice who shall be nameless. Her upbringing in Texas and Arizona, recounted in her autobiography two years ago, contributed to the warmth and grace she brought to court functions for 24 years.
O'Connor never made any pretensions toward writing the permanently quotable phrase. In her final term, in addition to those eight majority opinions, she wrote five dissenting opinions. Her prose was solid, to the point, cleanly decisive. On June 23, she spoke for the minority in the landmark case of Susette Kelo v. City of New London. This was the case in which the city invoked its power of eminent domain to condemn Kelo's private home, not for "public use," as the Constitution commands, but for private development.
Said O'Connor: "Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public." The majority's opinion, she said, washes out any distinction between private and public use of property. It "effectively deletes the words 'for public use' from the Takings Clause of the Fifth Amendment."
"Where is the line," O'Connor asked, "between 'public' and 'private' property use?" If it were left to the political branches to fix the line, the clause "would amount to little more than hortatory fluff." Courts must constrain abuse of the power of eminent domain. Her colleagues on the majority had "abdicated" their responsibility. They had made nearly all real property susceptible to condemnation for the benefit of other private parties. "The Founders cannot have intended this perverse result."
In the New London case, O'Connor sided with the court's conservatives in dissent, but she was a free spirit. In the Ten Commandments cases from Texas and Kentucky, she joined Justices Souter, Stevens and Ginsburg in opposing religious symbols on governmental sites. In the capital punishment case of young Christopher Simmons in March, she wrote as vigorously in opposition to them.
Her solo dissenting opinion in the Simmons case was vintage O'Connor. The case involved the vicious, premeditated murder of an elderly woman by a 17-year-old out for a thrill. Speaking for a soft-hearted majority, Justice Anthony Kennedy found it unconstitutional to impose a death sentence on such a wayward child.
O'Connor was made of sterner stuff. If she were back in Arizona as a legislator, she said, she too would agree to a minimum age of 18 for capital punishment. But as a judge on the Supreme Court, her vote on "cruel and unusual" punishment had to be influenced by a national consensus. She could see no persuasive evidence that the states were agreeable to Kennedy's view.
"Rather, the actions of the nation's legislatures suggest that, although a clear and durable national consensus against this practice may in time emerge, that day has yet to arrive. ... Without a clearer showing that a genuine national consensus forbids the execution of (17-year-olds), this court should not substitute its own 'inevitably subjective judgment' on how best to resolve this difficult moral question for the judgment of the nation's democratically elected legislatures."
O'Connor was there espousing what conservatives espouse as the "sound doctrine" of judicial restraint. Please, Mr. Bush, give us another Sandy baby if you can.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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