JUSTICE SANDRA DAY O'CONNOR: STRATEGIST ON THE SUPREME COURT
Nancy Maveety. Lanham, Md.: Rowman & Littlefield Publishers 1996. 152 pp. Paper $21.95.
Reviewed by Beverly B. Cook, Professor Emeritus, University of Wisconsin-Milwaukee.
In her preface Nancy Maveety states her purposes: to offer a valid explanation for the voting and writing choices made by Justice Sandra Day O'Connor and to reveal her strategic role in forming coalitions and shaping Court doctrine. O'Connor now sits one chair away from the senior justice position. A few other scholars have taken the risk of analyzing the jurisprudence of sitting justices, notably Sue Davis with JUSTICE REHNQUIST AND THE CONSTITUTION (1989) and Robert Sickels with JOHN PAUL STEVENS AND THE CONSTITUTION (1988). Maveety's project is very different from Davis', whose subject revealed a rigid and formal jurisprudence and a consistent pattern of ideological dispositions. Sickels, however, faced the same research problem as Maveety in dealing with his subject -- to explain the votes of a pragmatist requires a close examination of the justice's response to the varying law and fact claims in each individual case. Steven's idiosyncratic pragmatism required of Sickels the same attention to context and close reading of opinions as O'Connor's cooperative pragmatism demanded of Maveety. The similarities of the two justices -- their flexibility, practicality, skepticism of bright-line rules, concern over consequences, and deference to other decision makers -- are as striking as their differences. It is surprising, then, that Maveety neglects both Stevens and Sickels in her effort to interpret O'Connor.
Maveety begins with a brief biography, looking for experiential ties to O'Connor's later Court behavior. The most obvious difference between O'Connor and the brothers she joined in 1981 is her gender. The author agrees with other O'Connor scholars that her gender identity is not pertinent to her development of doctrine and points to her firm rejection of feminist psychologists' and jurisprudents' notion of a "different voice". Maveety concludes that her gender and her state level political experience provided no foundation for O'Connor's jurisprudential theory. On the other hand a good argument could be developed that her fractured career set the stage for her untheoretical and pragmatic approach. Unlike her brethren who followed the prescribed route to the highest bench, O'Connor moved along a zigzag course taking full advantage of varied and limited opportunities available to a married woman with children. Her life experiences required adaptation to new situations, learning new roles, working out compromises to fit the demands on her time and competencies. A recent and extremely insightful biographical piece on O'Connor not cited by Maveety emphasizes her marital situation (Andrea Gabor, EINSTEIN'S WIFE, 1995). In the O'Connor marriage the future justice played out a unique combination of conventional and liberated female roles. At the hearings she emphasized (with great sincerity, I am convinced, despite its partisan timeliness) the high value she placed on marriage and family. Her personal life and her professional life were riddled with adjustments, with the continuous changing of the rules at the margins that epitomizes her "jurisprudence."
The author's method, like her subject's, is pragmatic, first proceeding inductively to discover O'Connor's decisional principles by close reading of selected opinions and of internal memos over a broad range of issues and then operating deductively to fit those principles to all her opinions in three specific issue areas. The data for her study go beyond reporters to the papers of Thurgood Marshall, where she finds raw material to develop her concepts of accommodation in O'Connor's opinion drafts and in conference memos exchanged among the justices. The memos show that often O'Connor's effort to promote her own theory of a case was seriously considered but ultimately rejected by other justices. The papers indicate that when O'Connor has developed an innovative test she does not desist in presenting its virtues to her colleagues; she remains determined and obstinate in the face of their rejection. Maveety also finds that she protects her own positions vigorously, rewriting her opinions to answer maledictions prepared for publication by other justices. On the other hand she can be flexible in issue areas where she has not yet found her own answers, changing her own vote after conference and consideration of others' writings. The author's use of the private papers in the Library of Congress enrich her work and provide strong support for her scholarly claims.
Maveety's framework includes two forms of accommodation: jurisprudential and behavioral. In the jurisprudential sector are O'Connor's balancing arguments, her preference to retain but refashion precedent, her use of case facts to produce narrow rulings, and her aversion to bright-line rules. In the behavioral sector are her separate opinion writing, her limited agreement with right and left bloc positions, and her preference to work her influence from within the majority side. I agree with Maveety that O'Connor's "accommodationism constitutes a jurisprudence". It is a jurisprudence that invites Maveety's traditional (or post-modern?) method of analysis; O'Connor's flexible use of precedent and balancing resist translation into the variables needed for statistical models. What seems to be missing from O'Connor's jurisprudence, not noted by Maveety, is any attention to the tools of finding law, e.g. intent or plain meaning. The flexibility of her decision making tools and her disinterest in legal foundations allow her to concentrate on the law's application to specific case facts and its consequences for specific actors but arouse the antagonism of colleagues for whom the identification of legal foundations are the overriding consideration.
Maveety finds no specific values or hierarchy of values in O'Connor's life history but concludes from her partisan activities that O'Connor is "sympathetic with conservative policy outcomes." She uncovers no attitude or policy preference that could provide the basis for decision in the conventional behavioral model. Granted that the case issues that Maveety examines all involve a conflict of values of reasonably equal importance, a justice must make a (fairly) dichotomous dispositional choice, no matter how pliable the legal test. Having applied her flexible rules, which party and which value do O'Connor's dispositional votes support? This is the political question that behavioralists answer with their aggregated data. It would be illuminating if Maveety would show the relationship between O'Connor's accommodationist jurisprudence and the practical outcome for parties and values using her own method of individual case analysis.
Maveety's conceptualization of behavioral accommodation is somewhat less persuasive than that of jurisprudential accommodation. She elaborates on two strategies: voting with the majority's disposition and writing a concurring (regular or result) opinion. These two behaviors often have purposes and consequences other than accommodation. It is difficult to distinguish sincere from strategic majority votes. O'Connor's occasional tentative or changed vote before she joins the majority may give her options and, regardless of her intent (possibly to satisfy herself intellectually), may induce another justice to revise a draft. In any event memos that delay joining a Court opinion or that threaten a dissent are not unique to O'Connor but are routine tactics of influence. Some statistics are needed here to show how O'Connor compares with other justices in "strategic fluidity". Maveety's examination of concurring behavior is insightful and useful; she sees concurrence as "a rational strategy for judicial actors seeking to influence the future formation and composition of winning opinion coalitions" (p.55). However, O'Connor is not the sole active concurrer. Figure 1 (p.57) shows that Brennan, White, Powell, Kennedy, Scalia and Stevens, who do not follow her jurisprudential lead, wrote a larger percentage of concurring opinions. Does she differ in any of her strategic behaviors from conservative colleagues who also want to impress their doctrines upon a Court majority? As Maveety herself suggests, the writing of separate opinions might be considered a leadership rather than an accommodationist strategy.
What is the relationship between collegiality and accommodationism? O'Connor shows no inclination to accommodate herself to the rigid doctrines of brethren to the right and left. Her insistence on her own standards for decision, particularly when the consequence is a plurality decision in an important case, does not suggest accommodation. Her doctrines are accommodating but she is as unwilling to accept bright-line rules as her colleagues are to adopt her flexible standards. I find some confusion between the application of the term accommodation to the flexibility of the doctrine and to the flexibility of the justice. I would rewrite her sentence (p.66) that she "lobbied Brennan to accommodate her doctrinal views" to she "lobbied Brennan to adopt a more flexible doctrine."
Besides persuading the reader of O'Connor's accommodationist stance toward case problems, Maveety intends to reveal her important contribution to the collective output (precedential decisions) of the Court. The Washington community and especially her fellow justices were slow to recognize her ability and her ambition. O'Connor's life history indicates rather clearly that her work ethic, organizational and analytical skills, efficiency, concentration and persistence honed in community service and in state government were available to serve her program to assert leadership on the Court. Maveety shows how O'Connor proposed doctrinal language to fit abortion, religion, and race cases, repeated her formulations in successive special opinions, and finally succeeded in gaining a majority or plurality to incorporate them, openly or covertly, into case law. Her successes may well be due to the minority status of ideological extremists. Whether her style of forming collective judgments will constitute a new Court norm, as Maveety suggests, depends upon factors outside as well as inside the institution.
The firm conclusions in this monograph about the justice's accommodationist jurisprudence rely upon the author's correct reading of O'Connor's opinions in civil rights/liberties cases. Other scholars may want to test her model by investigating O'Connor's work in economic and criminal justice cases. The volatile values and new issues found in the economic cases of O'Connor's era may offer a more severe test of her principles and strategies than the fixed values and old issues of the C-scale. A study of her economic and criminal jurisprudence might also reveal the significance of O'Connor's political experience in state administration (attorney-general's office), in the state legislature (as the first woman leader of a state senate), and in the state judiciary (trial and appellate level). Maveety finds no rigid federalism principle in O'Connor's abortion, church-state, race and death penalty writings. Her broad generalization about O'Connor's willingness to compromise on federalism may not hold for other issue areas.
Maveety suggests that O'Connor's accommodationist jurisprudence is "revolutionary" (p.127). She identifies only one justice with a similar commonsense approach - the second Harlan. Her reference to Harlan is her only indication that O'Connor serves in an historical Court. The most striking feature of this book is the contrast between its broad analytical framework and its narrow focus on one justice and her colleagues. What are the intellectual roots of this framework? Must we treat O'Connor as sui generis or have there been other justices since 1789 who fit the accommodationist category?
An appropriate theoretical grounding for Maveety's contrast between rigid and flexible jurisprudence can be found in Stephen Toulmin's reexamination of modern philosophy COSMOPOLIS: THE HIDDEN AGENDA OF MODERNITY (1990). He locates two conflicting origins of modern thought, the humanism of the sixteenth century and the rationalism of the seventeenth century. Humanist thinkers considered the nature and circumstances of particular (civil or criminal) actions; the rationalists insisted on developing rules and dealing with issues independent of context. The values of humanists and rationalists were in sharp contradiction; the local or the universal; the timely or the timeless; the concrete or the abstract; the fuzzy or the certain. O'Connor who takes account of subject matter and situation and respects contextual detail fits the humanist tradition. The historical foundation of these two moral visions removes any support for the contemporary psychological theory that associates masculinity with formal rule-bound morality and femininity with flexible context-responsive morality. Both modes of decision making were genderless four centuries ago. O'Connor's refusal to associate her decision making style with her gender has a strong historical base. It is unlikely that Maveety's accommodationist form of jurisprudence, recognized under a different label in the Renaissance and earlier by the Greeks, is unique to O'Connor. One would expect to find a number of other justices between 1790 and 1997 who adopted a similar humanist jurisprudence and whose principles and strategies could be compared to hers.
This book has theory and data valuable to scholars interested in judicial decision making at any level. Maveety provides a strong factual foundation for her understanding of O'Connor's jurisprudence and for her story of O'Connor's contribution to doctrine in three issue areas. Since the author's traditional method of analyzing documents cannot be replicated exactly, there may be alternative interpretations of the impact of her special writings and different conclusions about her influence on the brethren. Other scholars may find stronger linkages between O'Connor's background and her decisions. One test of a good monograph is the degree to which it provokes the reader to look for alternative conceptualizations and explanations. I found this an exceptionally stimulating and provocative book which suggests a number of questions: Is O'Connor faithful to her jurisprudence of accommodation regardless of the values or policies at stake? Did O'Connor ever meet a positivist (Rehnquist), an originalist (Scalia), or a natural law exponent (Thomas) on his own grounds? Even if Spaeth and Segal are correct in their claim that jurisprudential principles can never explain dispositions, can they explain the grammar of doctrinal rules? How have some justices combined rationalist and humanist principles in their jurisprudence? Why does Stevens' pragmatic jurisprudence lead to different dispositions than O'Connor's? Young scholars of the Supreme Court may find inspiration in her book for a large variety of research designs and projects.