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Friday, July 1, 2005
A Busy Day at the Blog, Part II: Justice O'Connor's Resignation

US Supreme Court Justice Sandra Day O'Connor has announced her retirement after about two decades on the Court. There will be plenty of opportunities to discuss the political bloodbath that will ensue over the President's future nominee to replace a centrist, swing vote. For now, here are just three recent 5-4 decisions in which Justice O'Connor conceivably cast the deciding vote - preceded by two even more recent ones in which she didn't.

June 2005: Justice O'Connor dissented from the Court's 5-4 opinion in Kelo v. New London. The Court found the Fourteenth Amendment to the United States Constitution powerless to defend private property against a municipality which, under state law in Connecticut, wanted to take it by eminent domain - not for its own purposes, but for the benefit of a private party, a developer, for economic development the municipality thought would be for the public good. This is not actually the abolition of private property in the United States, but it is enough of a nod in that direction to make one nervous.

June 2005: Justice O'Connor dissented from the Court's 5-4 opinion in Gonzales v. Raich, in which the Court held that the US government could ban the medical use of marijuana in California, even though California law allowed it. Apparently, the majority believes that the Constitution's grant of power to Congress to regulate interstate commerce applies to something that is neither interstate nor commerce. The majority's reasoning is not without merit, and Justice Scalia's concurring opinion does give one pause, but one wonders (with Justice Thomas) if there is anything the Feds can't regulate under the Commerce Clause. This ruling is not quite the abolition of the states, either, but it moves in that general direction.

June 2003: Justice O'Connor voted with a 5-4 majority in Grutter v. Bollinger to uphold the University of Michigan Law School's admissions policy, in which race is a consideration. Conservatives had hoped this case might help unravel affirmative action, but instead it mostly just reaffirmed a 1978 decision which forms much of the basis for affirmative action, Regents of the University of California v. Bakke.

June 2002: Justice O'Connor was likely the swing vote in a 5-4 decision in Zelman v. Simmons-Harris, which upheld the constitutionality of a Cleveland pilot program allowing the use of tuition vouchers financed from public funds to pay for private, including religious, schools.

December 2000: Justice O'Connor voted with the majority in Bush v. Gore, blocking the Florida Supreme Court's effort to let the historic masters of the creative recount steal the 2000 election. A major portion of the decision was 7-2, and another part 6-3; it was not just 5-4, as commonly reported by the Big Media Acronyms, who either didn't read the opinion or didn't think 7-2 sounded partisan enough. A portion of it was 5-4, however, with Justice O'Connor voting with that majority, as well.

Here's a pretty good encyclopedia article on Justice O'Connor.

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