Supports Local Units : Legislative Past Guides O’Connor

WASHINGTON —  Sandra Day O’Connor, as almost everyone knows, is the only woman on the Supreme Court. What is not as well known, but perhaps more significant, is that she is also the only current justice who ever had been elected to a public post or served in state government.

And that may go a long way toward explaining much of what the court does in the new term that begins Monday. For O’Connor is likely to cast the decisive fifth vote in many of the court’s most controversial cases, and her allegiance to state and local government may determine her position on controversial issues from affirmative action and abortion to the role of religion and the death penalty for juveniles.

Among the justices, O’Connor has four liberals on her left on some key issues and, if new Justice Anthony M. Kennedy lives up to the Reagan Administration’s expectations, four conservatives on her right.

Given Various Labels

The 58-year-old O’Connor, by contrast, has not followed a strong ideological line in her seven years on the court. She has been variously labeled a conservative, a budding liberal, an uncertain moderate or perhaps someone who simply cannot arrive at consistent views.

But what is clear, according to those who have analyzed her record, is that more than any of her colleagues, she upholds the decisions of elected state and local governments.

“She is a democrat with a small ‘d,’ ” said University of Arizona law professor Robert J. Glennon. “She seems to really believe in a decentralized government system, whether or not she agrees with the results in each and every case.”

If she votes true to form in the coming court term, liberals will find themselves breathing a sigh of relief when the court again upholds limited forms of affirmative action plans adopted by state and local governments. But these same liberals will be appalled when the court indicates a willingness to uphold some state restrictions on abortions.

Votes Set Pattern

That has been O’Connor’s pattern. Two years ago, she cast key votes to uphold a California law giving pregnant employees the right to unpaid disability leave, to permit the state to set environmental controls on federal forest lands and to allow California’s Santa Clara County to promote a woman over a somewhat more qualified man as part of its affirmative-action plan.

These votes, and others like them, dismayed Reagan Administration lawyers and prompted stories of how O’Connor was moving to the ideological left.

But soon after, she also cast the deciding fifth vote to uphold Georgia’s death penalty system against charges of racial bias and to affirm state laws making sodomy a crime. Those decisions outraged liberals.

To be sure, not every issue involves state and local governmental prerogatives. On those that do not, O’Connor typically but not uniformly sides with the conservatives. On criminal cases, for example, she generally takes a hard line.

And O’Connor sometimes deviates from her allegiance to state and local governments. Last year, taking the side of free-speech advocates, she rejected an ordinance enacted by the Los Angeles International Airport board to ban solicitors from the terminal.

Approach Wins Applause

But for the most part, O’Connor’s approach to the law wins applause from state and local officials. “Year after year she is right at the top of our list” as the justice most supportive of state and local governments, said Benna Ruth Solomon, chief counsel of the State and Local Legal Center.

On the other hand, her voting pattern has won her few admirers among legal activists and academics.

Hard-line conservatives say she is “unreliable on the big issues,” said Gary McDowell, an adviser to former Atty. Gen. Edwin Meese III. He cites O’Connor’s votes in favor of limited affirmative action for women and blacks.

‘Not Up to . . . Bob Bork’

“She is simply not up to the level of a Bob Bork,” said McDowell. Like many conservatives, McDowell believes Bork, a former federal appeals court judge who was nominated to the Supreme Court last year by President Reagan but who was rejected by the Senate, would have been confirmed if Reagan had chosen him instead of O’Connor in 1981.

“She reminds me of Potter Stewart, a person of moderately conservative instincts but someone without a well-worked-out theory of the law,” said McDowell, now vice president of the conservative National Legal Center for the Public Interest in Washington. The late Justice Stewart had been a city councilman and vice mayor of Cincinnati before becoming a voice of the moderate center on the high court in the 1960s and 1970s.

Liberals and civil rights activists give a similar appraisal.

“I’m not a fan of O’Connor’s,” said Marsha Levick, executive director of the NOW Legal Defense Fund. Her court opinion last June in a major employment discrimination case is “potential poison” for minorities and women, Levick said, because it makes it much harder for them to prove they suffer discrimination in the workplace.

“Her opinions also have an ‘on-the-one-hand, on-the-other-hand’ quality that never seems to decide the issue,” she added.

Shares Criticisms of Powell

Many of the same criticisms had been hurled at Justice Lewis F. Powell Jr., who until his retirement in 1986 had been considered the court’s swing vote.

Lawyers appearing before the court appreciated Powell because they knew that they had a chance to win his vote. But his tendency to see both sides of a case also sent the high court on a wavering path on issues such as affirmative action and religion.

As with Powell, O’Connor’s written opinions often turn on narrow distinctions that virtually invite more litigation.

In 1985, for example, O’Connor voted to strike down an Alabama law requiring that each school day begin with a “moment of silence” because a careful reading of the legislative history of the law showed that the Legislature obviously wanted to use it to bring back school prayer. But the state could enact an identical law, she said, if it did so without appearing to endorse prayer.

Similarly, the justices were faced last term with the question of whether a death sentence for a juvenile was unconstitutional as “cruel and unusual punishment.” The four liberals said yes. The three conservatives--Kennedy had yet to join the court--said no.

Agonized Opinion

O’Connor, in an agonized, back-and-forth opinion, decided that the 15-year-old Oklahoma boy in the case at hand could not be put to death because the state Legislature had not specifically provided for capital punishment at his age. But O’Connor refused to go further because no “national consensus” existed on whether teen-agers could be executed.

She will get two more chances on that issue in the coming term. The day after deciding the Oklahoma case, the court announced that it would hear appeals this fall from a 16-year-old from Missouri and a 17-year-old from Georgia, both of whom were sentenced to death for brutal murders (Wilkins vs. Missouri, 87-6026) and (High vs. Zant, 87-5666).

O’Connor’s reluctance to overturn the judgments of state and local governments apparently stems from her background. After graduating third in the 1952 Stanford University law class--Chief Justice William H. Rehnquist finished first--O’Connor was unable to find a job in a private law firm and instead went to work as a deputy district attorney in San Mateo County.

Later, when she and her husband, John, moved to Phoenix, she became an assistant attorney general for Arizona. In 1969 she won a seat in the Arizona Senate, and three years later her colleagues elected her as the majority leader, the first woman in the nation to hold such a post.

Left Legislature in 1974

In 1974, she decided to leave the Legislature and was elected a Superior Court judge. Four years later Gov. Bruce Babbitt, a Democrat, appointed her to the state Court of Appeals.

Since Reagan put her on the U.S. Supreme Court in 1981, O’Connor has voted with Rehnquist, her former Stanford classmate, 85% to 90% of the time. When she splits with Rehnquist, it is often on a matter of state’s rights.

The chief justice voted to strike down the California pregnancy leave law as a violation of a federal law requiring equal treatment of male and female employees, and he also cast a dissenting vote against Santa Clara County’s affirmative-action plan.

In April, O’Connor cast the lone dissent when the court overruled a 100-year-old precedent and declared that Congress might, if it so decided, impose federal taxes on heretofore tax-free municipal bonds. The decision “strikes at the very heart of state and local government activities,” complained O’Connor, accusing her colleagues of ignoring “the constitutional safeguards of state autonomy and self-sufficiency.”

Last year, O’Connor dissented from a Rehnquist opinion giving Congress the power to use federal highway grants to force states to raise their minimum drinking age to 21. Congress may say how highway grants are to be spent, O’Connor said, but it may not use that money as blackmail to force states to make other changes.

“If the rule were otherwise,” she wrote, “Congress could effectively regulate almost any area of a state’s social, political or economic life on the theory that use of the interstate transportation system is somehow enhanced.”

Joined by Brennan

Justice William J. Brennan joined this O’Connor dissent, but that is a rarity. Only in 40% to 50% of court’s cases does she vote on the same side with liberals Brennan and Thurgood Marshall.

On the bench, O’Connor is a well-prepared, no-nonsense questioner. While the jovial Justice Antonin Scalia often trades analogies and philosophical insights with lawyers, O’Connor usually bores in with pointed jabs.

A year ago, for example, a California attorney urged the court to overturn a ruling that state employees have a right to keep their desks and offices private. This cannot be correct, the state attorney argued, since the desks are owned by the government, not the employees.

“What about the desk of a Supreme Court justice?” asked O’Connor, a question that sent the attorney backpedaling.

This term, the justices will consider affirmative action yet again. On Wednesday, the court will hear arguments on whether the City Council in Richmond, Va., may require that 30% of its contracts go to minority-owned businesses. Nearly half of its residents are black, but less than 1% of its contracts had gone to minority firms before the 1983 law was enacted.

Could Decide Case

A federal appeals court, backed by the Reagan Administration, struck down the Richmond law as establishing an illegal quota system, a ruling that threatens similar laws in California and 35 other states. With the court evenly split, O’Connor’s vote will probably decide the case (Richmond vs. Croson, 87-998).

The court’s only woman also probably holds the swing vote on abortion, another issue that may come before it during the coming session.

“I think she will write the opinion that becomes the law,” said Georgetown University law professor Thomas Krattenmaker. “It won’t necessarily be the one (opinion) that everyone will rally around, but it will be the one that counts.”

Cases Percolating Up

Although the justices have not yet agreed to hear an abortion case, several are percolating up from the lower courts. In August, two federal appeals courts split on whether states may require teen-age girls to get the permission of their parents or a court before having an abortion. The state courts also are considering appeals from estranged husbands who want to prevent their pregnant wives from having abortions.

O’Connor’s views on abortion suggest an unhappiness with the 1973 Roe vs. Wade decision giving women a constitutional right to abortion in the first two trimesters of pregnancy. In a 1983 abortion case from Akron, Ohio, for example, she argued that advances in medical technology had made fetuses viable at an earlier stage than a decade earlier.

In the Akron case, consistent with her tendency to support local governments, she dissented from the court’s decision to invalidate an ordinance requiring that second-trimester abortions be performed only in hospitals and obligating doctors to tell women of the risks of abortion.

Consensus Guess

To some scholars, that suggests she might support states that require parental approval of abortions for teen-agers. But among legal experts, the consensus guess is that O’Connor would not vote to flatly overturn Roe vs. Wade.

With Powell gone, many experts believe that abortion will be only one of many areas in which O’Connor’s opinions--sometimes written as separate concurrences that speak for her alone--will become the law.

“She has staked out separate, more moderate positions from Rehnquist and Scalia,” said American University law professor Herman Schwartz. “And given the dynamics of the court, her views and her analysis will be decisive.”