The president of the United States was adamant about how he was conducting his so-called “War on Terror.”
     He believed he could classify anyone, even American citizens, as “enemy combatants,” hold them indefinitely in secret without charges ever being filed, deny protections of the Geneva Conventions, refuse the right to legal representation, and when it was in the administration’s best interest to bring to trial prisoners outside the established court system. Under a “gag order” governing those held prisoner at the U.S. Naval base at Guantánamo Bay, anyone who revealed information about anyone’s detention could be charged under the USA PATRIOT Act . T he Bush administration further claimed the prisoners at Guantá namo Bay were on “foreign” soil and, thus, not subject to American jurisprudence.
     Several times in our nation’s history, the Supreme Court of the United States had ruled that fear and even terrorism might be a dominating concern, but that under the Constitution observation of rights and of law are the best ways to preserve the democracy. A President’s power, even in times of war, is not absolute, the Court several times determined.
     In June 2004, that Court dealt the Bush administration a major defeat in how it treated American citizens and, by implication, others as well. In a stinging 33-page page opinion, Justice Sandra Day O’Connor firmly stated:

          “It is during our most challenging and uncertain moments that our
     Nation’s commitment to due process is most severely tested; and it is in those
     times that we must preserve our commitment at home to the principles for
     which we fight abroad. . . . The imperative necessity for safeguarding these
     rights to procedural due process under the gravest of emergencies has existed
     throughout our constitutional history, for it is then, under the pressing
     exigencies of crisis, that there is the greatest temptation to dispense with
     guarantees which, it is feared, will inhibit government action. . . . It would
     indeed be ironic if, in the name of national defense, we would sanction the
     subversion of one of those liberties, which makes the defense of the Nation
     worthwhile.). . .
        “[T]hreats to military operations posed by a basic system of independent
     review are not so weighty as to trump a citizen’s core rights to challenge
     meaningfully the Government’s case and to be heard by an impartial
     adjudicator. . . . .We have long since made clear that a state of war is not a
     blank check for the president when it comes to the rights of the Nation’s
     citizens. [E]ven the war power does not remove constitutional limitations
     safeguarding essential liberties. [T]he Great Writ of habeas corpus [is] an
     important judicial check on the Executive’s discretion in the realm of
     detentions. . .[I]t would turn our system of checks and balances on its head to
     suggest that a citizen could not make his way to court with a challenge to the
     factual basis for his detention by his government, simply because the
     Executive opposes making available such a challenge.
          “Any process in which the Executive’s factual assertions go wholly
     unchallenged or are simply presumed correct without any opportunity for the
     alleged combatant to demonstrate otherwise falls constitutionally short . . .
     [T]he constitutional limitations safeguarding essential liberties . . . remain
     vibrant even in times of security concerns.”

     Nevertheless, even after the ruling, the “law-and-order” Bush administration continued to delay, trivialize, and attempt to subvert the Court’s decisions.
     Justice O’Connor, who last week announced her resignation, was probably the one justice whose stinging rebuke of Presidential excess represented not just her own opinion, but those of both the liberal and conservative wings, and why she had to be the one to write the Court’s decision.
     Justice O’Connor was Ronald Reagan’s first Supreme Court nomination, and after unanimous confirmation by the Democrat-controlled Senate became the Court’s first female justice. She had grown up on a 250 square mile isolated Arizona cattle ranch, entered Stanford University at the age of 16, graduated with a B.A. in economics, and then in two years instead of the usual three years graduated from Stanford Law School, third in her class. (William Rehnquist, whom she occasionally dated, was first in the class). But, she was denied employment innumerous times because she was female, and had to listen to law firms explain that she could be hired as a secretary. Eventually, she became a prosecuting attorney and civilian lawyer for the Army. First appointed to a vacancy in the Arizona senate, she later was elected to two terms, becoming the Senate’s majority leader, the first female to hold that position in the nation. Known for her bipartisan collegiality and attempts to broker compromise, her working pragmatism changed little after she was appointed to both state trial and appellate courts.
     At the time she was appointed to the Supreme Court, she was a political conservative, recommended to President Reagan by Sen. Barry Goldwater, one of the nation’s most respected conservative politicians. During her 24-year court career, the independent Justice O’Connor usually thought through cases not on basis of political expediency or entrenched judicial philosophy, but on a case-by-case basis, often looking at the practical effects of a decision, thus becoming the Court’s swing vote on innumerable issues. Because of her stand, it was difficult for even the most astute legal analyst to determine how she might vote on any issue.
     Her centrist views in a divided court—she believed she hadn’t changed her conservative political philosophy, only that conservatives had moved further to the right and left her appearing to be more moderate—often forced other justices to modify their own views in order to gain her vote. On 5-4 decisions, of which there were usually more than a dozen in each term, she was in the majority more than 90 percent of the time. On dozens of critical social issues, “she held the balance on whether the country would tilt all the way to the right or try to find a compromise between ideological poles,” said Kathleen Sullivan, professor of Constitutional Law at Stanford. For more than two decades, said Justice Antonin Scalia, perhaps the most conservative justice on the Supreme Court, “she shaped the jurisprudence of this court more than any other associate justice.” But, that reputation for independence and being the swing vote also brought her scorn. O’Connor’s role on the Court left the perception among many legal scholars that she was opportunistic and lacked an intellectual honesty, Dr. Charles Kessler, professor of government at Claremont-McKenna College, told the Arizona Republic. “Her dilemma is that she’s made a principle of not having a principle,” he said. A decorative pillow in her chambers, however, may have been the best way to determine her votes, which came after extensive analysis of the issue by the justice and her law clerks. In cross-stitch, she silently told her visitors “maybe in error but never in doubt.”
     Representing conservative issues, she was firmly a states’ rights advocate who had a healthy distrust of Congress to solve the nation’s social problems, and was the swing vote to uphold both the “three strikes and you’re out law” and to approve the use of public funding for tuition vouchers to children to attend private schools. In December 2000, she cast what was the deciding vote that in a controversial decision ended the recount in Florida and essentially elected George W. Bush to his first term.
     Citing the First Amendment freedom of association clause, she was the swing vote that the Boy Scouts could exclude gays. But she also was the swing vote that not only struck down a Texas law banning homosexual activity, but also forcefully stated that gays have a constitutional right of privacy.
     On liberal issues, she consistently voted in the majority in several major 5-4 decisions. Early in her Supreme Court tenure, she was the deciding vote that a female-only nursing school could not exclude a male applicant. She would later be the deciding vote that determined affirmative action in university admissions criteria was constitutional, that school athletes retained all of their civil rights, and to expand the scope of Title IX, giving women equal treatment in public school athletics programs. She was the “deciding vote” to uphold abortion-rights cases, to allow a second physician's opinion when an HMO tried to deny a client treatment, to declare public schools violated the Constitution by allowing school-sponsored prayers at graduation and other public meetings, and religious displays on public lands unconstitutional, to allow the federal courts to review discriminatory and unconstitutional state tax laws, and upheld the rights of the disabled to sue states for failure to meet requirements of the Americans With Disabilities Act. In one of her strongest dissents from a majority, she joined with three liberal justices to oppose public schools from requiring student athletes to undergo drug testing, arguing that the government’s interest was not sufficient to violate the rights of privacy guaranteed under the Fourth Amendment.
     Justice O’Connor—an excellent golfer, who also enjoys tennis, hiking, skiing, whitewater rafting, fly fishing, and led daily exercise and yoga classes at the Supreme Court—did not retire because of her age, physical or medical condition, or because she was mentally tired, but because of a long-standing commitment to her family. Known for treating her staff and co-workers as beloved members of an extended family, she retired to care for her husband, also a Stanford Law graduate, who has Alzheimer’s Disease.
     Part of President Bush’s legacy will be what he does with the nomination for Justice O’Connor’s replacement. If he continues to disregard the advice of those who aren’t his closest political advisors and sticks to his promise to nominate someone acceptable to the evangelical right-wing of his party, his legacy may be further tarnished. Not only would he show disrespect of the legacy of Justice O’Connor, but will have set into motion a political battle that may eventually lead not only to a greater division in the country, but of a Supreme Court that may be responsible for a further reduction of Constitutional freedoms.

JULY 2005