Anyone doubting the impact of Sandra Day O'Connor's departure from the Supreme Court would do well to consider history and a little nine-justice math.
Since Ronald Reagan appointed her to the court in 1981, O'Connor has been, as the Washington Post puts it this morning, the "decisive swing vote" on "virtually all the major legal issues of our time." In one recent year, the court decided 15 cases by 5-4 decisions. O'Connor, dubbed the "Mighty Swing" by one of her home-state newspapers, was in the majority on 13 of them.
Just this week, she was one of five justices who held that the display of the Ten Commandments in Kentucky courthouses violated the Establishment Clause of the First Amendment. In prior years, she provided the fifth vote in favor of at least some forms of affirmative action and in favor of allowing Congress to regulate campaign contributions. She was also the critical swing vote on cases involving political redistricting, sexual harassment and equality for women. O'Connor wasn't always on the winning side. She was on the short end of a 5-4 vote to end the death penalty for juvenile offenders last year. Nor was she always on the side of the angels in the eyes of Democrats and other progressives. She often sided with Chief Justice William Rehnquist and other Republicans in cases involving federalism concerns, and -- or maybe but -- she was part of the 5-4 majority that put George W. Bush in the White House in 2000.
But nowhere was O'Connor's vote so visible and important than in the arena of abortion rights. O'Connor once said that Roe vs. Wade had "no justification in the law or logic." But in the landmark 1992 case Planned Parenthood of Southeastern Pennsylvania vs. Casey, O'Connor joined Anthony Kennedy and David Souter in a three-judge plurality decision that defended Roe against attack from the religious right and the more conservative justices on the court. "We are led to conclude this," O'Connor and her colleagues wrote. "The essential holding of Roe v. Wade should be retained and once again affirmed." In the 2000 case of Stenberg v. Carhart, O'Connor joined four other justices in invalidating a Nebraska law that prohibited late-term, or "partial-birth" abortions. O'Connor said the Nebraska law was unconstitutional because it did not provide an exception in cases where the health of the woman was at risk and because it placed "an undue burden on a woman's right to choose to terminate her pregnancy before viability." If O'Connor had been a more reliably conservative justice -- say, someone in the Scalia-Thomas "mold" George W. Bush has said he favors -- the Stenberg decision, and a whole lot of others, would have come out differently.
Thus, it's not surprising that, within minutes of O'Connor's retirement announcement, abortion-rights activists began issuing pronouncements about the importance of the fight over her replacement. "This will be a defining moment," Nancy Keenan, the president of NARAL Pro-Choice America said in a statement e-mailed to reporters this morning. "President Bush has to pick between what mainstream America wants and what the radical right demands." Marcia Greenberger, co-president of the National Women's Law Center, said: "A woman's right to choose is at stake, and so are a whole range of laws that protect women's constitutional rights to equal protection, as well as their rights in employment, education, and health, safety and welfare."
The anti-abortion Family Research Council has scheduled a press conference for this afternoon.
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