It doesn’t take long in the age of mass media to divide a country.
Within hours of Supreme Court Justice Sandra Day O’Connor’s announcement that she would retire, the nation began to choose up sides. Some, mostly Democrats, said picking her replacement will be a chance to “unite” the nation. Others, mostly Republicans, grumbled that O’Connor had been a disappointment and that her replacement should be a more principled conservative.
Those who have not closely followed the activities of the Supreme Court may understandably be mystified at why conservatives would object to O’Connor, an appointee of Ronald Reagan.
The short answer to that question is that O’Connor often exhibited the mind of a legislator (which she once was), and on a number of key occasions articulated views that were either confusing or contradictory.
In 1989, she authored a decision striking down a minority contracting ordinance in Richmond, Va., that gave 30 percent of the contracts to minority firms, which made up about 1 percent of the corporations available to do the work. But that decision contained mushy language that was later used to circumvent the central holding in the case. Years later, when a Denver case gave the court a chance to re-establish the original principle, O’Connor voted not to take the case. The three most conservative justices on the court, Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas, filed an opinion saying they wanted to review the lower-court decisions.
O’Connor’s opinions in abortion cases show a similar kind of unpredictably and inconsistency. She helped write the decision in an important 1992 case from Pennsylvania that fashioned the so-called “undue burden” standard for evaluating restrictions on abortion. The court said that restrictions that don’t impose an “undue burden” on a woman’s right to an abortion may be upheld. However, the court, using that standard, struck down a number of provisions of the Pennsylvania law. Since then, the “undue burden” standard has been used to invalidate a partial-birth abortion measure in Nebraska. It may again come into play when the court next year considers a parental notification measure from New Hampshire.
The point is that the court’s prior decisions on abortion, greatly aided by O’Connor, suggest that abortion may be regulated, but don’t clearly say how. The result is that cases are now pending on partial-birth abortion and parental notification in which pro-abortion groups plainly hope to establish the principle that the “health” of the mother (broadly defined) should trump all other considerations.
This prospect exists despite the fact that Congress and many state legislatures have passed laws relating to partial-birth abortion and parental notification. And it exists despite the fact that public opinion polls have repeatedly shown strong public support for such legislation.
Just last week, in a couple of cases involving displays of the Ten Commandments in Texas and Kentucky, O’Connor sided with the court’s liberals in opposing both displays. What particularly offended conservatives this time was the way she did it. In a concurring opinion in the Kentucky case, she said the framers of the Constitution “lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country.”
These comments are sociology, not jurisprudence. Compare them to those of Clarence Thomas, who in the same cases speaks directly to the central issue of what does and what does not constitute the “establishment of a religion.”
Next term, the Supreme Court will deal with issues involving abortion and homosexuality, among other contentious matters. These are fights worth having. And so is the fight over who should replace O’Connor. Those who think the upcoming appointment is an occasion for “uniting the country” are either deluded or intent on ignoring recent history.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His columns appear on Wednesday.
