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O'Connor's vote was pivotal in Supreme Court's just-ended term

Erwin Chemerinsky



The October 2002 Supreme Court term ended dramatically. In the last week of June, the Supreme Court upheld affirmative action programs by colleges and universities; invalidated a state law prohibiting private consensual homosexual activity; overturned a death sentence because of ineffective assistance of counsel; upheld a federal law requiring libraries receiving federal funds to install internet filters; and declared unconstitutional a California law that retroactively extended the statute of limitations for sex offenders.

These, of course, were not the only blockbuster rulings of the term. Earlier, the Court had upheld Interest on Lawyer Trust Account programs that provide almost $200 million a year for legal services; allowed state governments to be sued for violating the Family and Medical Leave Act; rejected a constitutional challenge to life sentences imposed on shoplifters under California's three strikes law; and ruled that non-citizens facing deportation for illegal activity could be held without due process.

Justice Sandra Day O'Connor

Some of these rulings were applauded by liberals, others by conservatives. But they all had one common characteristic: Justice Sandra Day O'Connor was in the majority. Indeed, she was the only justice in the majority in every one of these decisions.

Affirmative action

In Grutter v. Bollinger, in a 5-4 decision with Justice O'Connor writing for the majority, the Court upheld the University of Michigan Law School's affirmative action program. The Court ruled that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity.

In a companion case, Gratz v. Bollinger, the Court, 6-3, invalidated an affirmative action program for undergraduate admissions which added 20 points to the applications for minority students. In an opinion by Chief Justice William Rehnquist, the Court ruled that the undergraduate program was not sufficiently "narrowly tailored" to meet the strict scrutiny used for government racial classifications.

The bottom line is that the Court adhered to the position articulated by Justice Lewis Powell in Regents of the University of California v. Bakke a quarter century ago: Diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible.

However, the Court's ruling in the Michigan affirmative action cases will have no effect on public schools in California. Because of Proposition 209, passed by California voters in 1996, state schools in California are prohibited from engaging in affirmative action or giving any preference based on race.

Sexual privacy

In Lawrence v. Texas, the Court held that states may not prohibit private consensual sexual activity between consenting adults of the same sex. Police in Texas received an anonymous tip of a disturbance in an apartment. They went to investigate and entered the apartment; they found two men engaged in sexual activity. The men were convicted and fined $200 under a Texas law prohibiting "deviate sexual intercourse," defined as sexual activity between same sex couples.

Seventeen years ago, in Bowers v. Hardwick, the Court ruled that the right to privacy does not protect a right to engage in private consensual homosexual activity. In a forceful opinion in Lawrence, Justice Anthony Kennedy, writing for the Court, expressly overruled Bowers and spoke of constitutional protection for all individuals in the most intimate and private aspects of their lives.

Lawrence means that laws in 13 states prohibiting private consensual homosexual activity are unconstitutional. But even more, Lawrence is a powerful affirmation of a right to privacy and especially of the rights of gays and lesbians to equal dignity and equal treatment under the Constitution.

Criminal cases

California laws were at the issue in some of the most important criminal cases of the term. In Lockyer v. Andrade and Ewing v. California, the Court upheld life sentences imposed on shoplifters pursuant to California's Three Strikes law. Leandro Andrade was sentenced to life in prison, with no possibility of parole for 50 years, for stealing $153 worth of videotapes from K-Mart stores. Gary Ewing was sentenced to life in prison, with no possibility of parole for 25 years for stealing three golf clubs worth $1,200.

In two 5-4 decisions, with Justice O'Connor writing for the Court in each, these sentences were upheld. The Court rejected the argument that the sentences were grossly disproportionate and thus cruel and unusual punishment in violation of the Eighth Amendment. The Court stressed the need for deference to state governments in deciding appropriate punishments for recidivists and that states may impose life sentences on repeat offenders.

Justice Stephen Breyer, in a dissenting opinion, noted that prior to California's Three Strikes law, no one in the history of the United States had received a life sentence for shoplifting.

In Stogner v. California, the Court declared unconstitutional a California law that retroactively extended the statute of limitations for criminal prosecutions of sex offenders.

A law enacted in 1994 allowed criminal prosecutions for sexual molestation, even when the statute of limitations had expired, so long as a prosecution was initiated within one year after the victim of alleged childhood abuse reported the matter to police.

Justice Breyer, in an opinion joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and O'Connor, found that this was an impermissible ex post facto law. It should be emphasized, though, that this case concerned only retroactive criminal liability and cannot be used to challenge a California law enacted last year that creates retroactive civil liability for sexual molestation. Since early in American history, the Supreme Court has ruled that the ex post facto clause applies only in criminal cases; retroactive civil liability only has to meet a rational basis test.

Another important criminal case was Wiggins v. Smith, where the Court overturned a death sentence because of ineffective assistance of counsel. In a 7-2 ruling, with Justice O'Connor writing for the majority, the Court found that the failure of the defense attorney to investigate or present evidence of the defendant's mistreatment as a child constituted ineffective assistance of counsel. 

Economic liberties

In Brown v. Legal Foundation of Washington, the Court upheld Interest on Lawyer Trust Account (IOLTA) programs that provide almost $200 million for legal services for the poor. Every state has an IOLTA program which applies to client trust accounts that are too small or too temporary to generate measurable interest greater than the cost of administering the account.

The Supreme Court, in a 5-4 decision with Justice Stevens writing for the majority, joined by Justices O'Connor, Souter, Ginsburg and Breyer, affirmed the Ninth Circuit's conclusion that such programs are constitutional and not an impermissible taking of private property without just compensation.

The Court explained that under the takings clause, just compensation is measured in terms of the loss to the owner, determined by the reasonable market value of the property. IOLTA programs, by definition, apply only to client accounts that would not otherwise generate interest and thus impose no loss to the owner requiring just compensation.

In State Farm Mutual Automobile Insurance Co. v. Campbell, the Court found a large punitive damage award to be grossly excessive and a violation of due process. A jury in Utah awarded $1 million in compensatory damages and $145 million in punitive damages against an insurance company for bad faith in refusing to pay and settle a claim. The Supreme Court, in a 6-3 decision, found this award unconstitutional. Justice Kennedy, writing for the Court, applied the three-part test which the Court had announced in BMW v. Gore in 1996.

First, the Court looked to the "reprehensibility" of the defendant's conduct and noted that State Farm's fraudulent behavior did not involve death or serious bodily injury and emphasized that the jury in Utah had impermissibly considered other misconduct by State Farm occurring elsewhere in the country.

Second, the Court considered the ratio between the punitive and the compensatory damages. The Court said that any ratio greater than single digits is suspect and that the ratio of 145 to 1 was excessive.

Finally, the Court looked to other possible sanctions against State Farm in Utah for the conduct and explained that the potential criminal nature of State Farm's conduct was not enough to justify a large punitive damage award. The case did not significantly change the law regarding punitive damages, but it did make clear that a majority of the Court will use due process to limit the size of punitive damage awards.


When historians look back at the Rehnquist Court, undoubtedly they will say that its most significant changes in the law have been with regard to federalism. In the last decade, the Court has limited the scope of Congress' power under the commerce clause and section five of the Fourteenth Amendment; revived the Tenth Amendment as a constraint on federal power; and greatly expanded the scope of state sovereign immunity.

This term, however, the federalism cases rejected the "states' rights" argument and ruled in favor of federal power.

In Nevada Department of Human Resources v. Hibbs, the Court held that state governments may be sued for violating the Family and Medical Leave Act. In recent years, the Court had ruled that Congress could authorize suits against state governments only when it acts pursuant to section five of the Fourteenth Amendment. The Court thus concluded that federal laws prohibiting patent infringement, age discrimination in employment, and disability discrimination in employment could not be used to sue state governments.

But in Hibbs, the Court found that the federal law requiring employers to give employees unpaid time off work for family leave could be used to sue state governments. Chief Justice Rehnquist, writing for the Court in a 6-3 decision, said that Congress was concerned about preventing and remedying gender discrimination in employment and that Congress has more authority to act under section five of the Fourteenth Amendment when it is dealing with types of discrimination, such as based on race or gender, which receive heightened scrutiny under equal protection.

In Pierce County, Washington v. Guillen, the Court upheld the constitutionality of a federal law which prohibits local governments from disclosing information concerning traffic safety gathered as part of applying for federal funds. The Court, in an opinion by Justice Clarence Thomas, explained that Congress, under the commerce clause, was permissibly regulating the channels of interstate commerce.

First Amendment

Unlike recent years, this term the government largely prevailed in every First Amendment case. In Eldred v. Ashcroft, the Court upheld the constitutionality of a federal law that extended copyrights, which were about to expire, for 20 years. In United States v. American Library Association, the Court upheld a federal law that requires libraries receiving federal funds to install internet filters on computers available to the public to prevent access to material which would be harmful to children.

However, only a plurality voted to unequivocally uphold the statute; Justices Kennedy and Breyer concurred in the judgment and said that they would view the issue differently if it were demonstrated that librarians refused to remove the filters when requested by adults to do so.

Finally, in Virginia v. Black, the Court held that governments may prohibit cross burning done with the intent to intimidate, but that this intent must be proven in the particular case.

Justice O'Connor, writing for the Court, explained that the government cannot prohibit all cross burning, but that "true threats" are not protected by the First Amendment and that cross burning may be punished when it is done to threaten or intimidate.

October 2002 Supreme Court
(Click to Enlarge)


By any measure, October term 2002 was remarkable. Next term is likely to be just as dramatic as the Court already is scheduled to hear cases involving a challenge to the Bipartisan Campaign Finance Reform Act of 2002; a dispute over whether the government must provide aid to religious colleges when assistance is provided to private secular schools; and a challenge to partisan gerrymandering in drawing election districts.

There are several cases concerning federalism and many concerning criminal procedure issues under the Fourth and Fifth Amendments. Undoubtedly, like this year, the outcome in most, if not all of these cases, is likely to depend most on the vote of Justice Sandra Day O'Connor.

For better or worse, this really is the O'Connor Court.

• Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at the University of Southern California.

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