WASHINGTON — Justice Sandra Day O’Connor’s retirement has been delayed again, putting her at the center of upcoming Supreme Court debates on several First Amendment issues and on abortion, the death penalty and gay rights.
Until yesterday, the White House had been pushing to have Harriet Miers confirmed before the Court took up some of the most contentious cases of the year. Miers’ withdrawal means O’Connor will hear those cases — and could control the outcome.
O’Connor said yesterday of her stay on the high court, “It sounds like it may go on a little longer.”
She is a moderate who has backed abortion rights and limits on capital punishment. And she has not been hesitant to oppose the Bush administration.
Nearly four months after O’Connor, 75, announced that she was stepping down to care for her ill husband, it’s unclear when she will actually retire. She has said she will stay until a successor is confirmed.
She could quit before then, but that is unlikely because it would leave the Court with just eight members and the potential for deadlocks.
O’Connor has been hearing cases and voting at closed-door meetings. But if she leaves the Court before decisions are announced, her votes will not count. Cases with a 4-4 outcome would likely require a new argument session so O’Connor’s successor could participate.
“In all likelihood, a new justice will not assume his or her seat on the Court before all four First Amendment-related cases currently set for oral argument are argued and assigned,” said Ronald K.L. Collins, First Amendment Center scholar. “O’Connor will likely participate in and vote on cases involving the Solomon Amendment, whistle-blowing, anti-abortion demonstrations and a church’s use of hallucinogenic tea. If so, those votes will count provided she does not leave the Court before any opinion is handed down. There is also the question of whether the next nominee will be confirmed in time to participate in the five campaign-finance cases the Court recently agreed to hear, which have not yet been set for oral arguments.”
David Alistair Yalof, author of a book on Supreme Court vacancies and a University of Connecticut professor, said O’Connor “remains the pivotal figure on the Court.”
Justices have already heard one major case, the administration’s challenge to Oregon’s physician-assisted suicide law, and O’Connor seemed ready to support the law.
On Nov. 30, the justices will review a state abortion law, and on Dec. 6 they will take up an appeal that involves gay rights, as part of a protest against the Pentagon’s “don’t ask, don’t tell” policy. Two death-penalty cases are scheduled for Dec. 7.
As long as O’Connor is on the Court, she should actively participate in cases, Yalof said.
“It would look bad for the institution if they were manipulating opinions to avoid one of the justice’s influence,” he said.
O’Connor, speaking yesterday to women leaders in Long Beach, Calif., declined to say when she would be leaving the Court.
“When I announced my intention to retire, I said it would become effective on the nomination and confirmation of my successor. Life took an unfortunate turn when our chief justice passed away after the nomination of John Roberts to fill my seat. ... (Now) it sounds like it may go on a little longer,” said O’Connor, who has been on the Court 24 years.
Until this year, the Supreme Court had no turnover for a record-setting 11 years. Chief Justice William H. Rehnquist died of cancer in September, and President Bush named appeals court Judge John Roberts to the job. Roberts had first been named to succeed O’Connor.
The president of the National Organization for Women said yesterday that the group was starting a petition drive to try to persuade O’Connor to reconsider her retirement plans. “At this time, with the country’s leadership in turmoil and confidence in the government steadily declining, now more than ever we need stability,” Kim Gandy said.
A Senate vote on Miers had been expected in November, so many people thought O’Connor would be on the bench just a few months longer. The Court’s term began Oct. 3 and runs through the end of June.
“I very much think Sandra Day O’Connor will indeed remain a ‘real’ justice,” said David Garrow, a legal historian at Cambridge University.
O’Connor is a fast opinion writer, and in the cases that have been argued at the high court this month she has been an energetic questioner.
Her involvement in the abortion case next month would be particularly influential. She is the architect of a 1992 compromise that barred abortion restrictions that impose an “undue burden” on women, and she was expected to be a key vote to strike down New Hampshire’s parental-notification law. The law lacks an exception allowing a minor to have an abortion to protect her health.