Sandra Day O'Connor's Legacy

"In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities."

—Justice Sandra Day O'Connor, concurring in Arizona v. Evans, 514 U.S. 17-18 (1995)

In a recent interview with CNN, Justice Sandra Day O'Connor dismissed the swing vote label by saying, "That's something the media has devised as a means of writing about the court, and I don't think that has a lot of validity." Regardless of her comments, the first female justice to the US Supreme Court has been pivotal in deciding many of the most important cases before the court since her appointment in 1981. Among the various issues before the court, several have been central to EPIC's mission of protecting privacy, constitutional values, and promoting open government. In many of her opinions, O'Connor was at the forefront in protecting these values, and during oral arguments, she was never one to back away from the difficult questions.

As a former Arizona Senate majority leader, O'Connor was a proponent of the idea that states should serve as laboratories for new social and economic experiments. This idea, first contemplated by the Framers, was re-iterated by Justice Brandeis in the post-Lochner court of 1932 and served as an influence for many of O'Connor's decisions throughout the years. Consistent with these ideals, O'Connor delivered several unexpected opinions including the recent dissent in Gonzales v. Raich concerning the use of medical marijuana in California. She also worked to help uphold the principles of the Constitution and Bill of Rights. In Watchtower Bible she voted to uphold the First Amendment's right to anonymous speech, and in various student drug testing cases, O'Connor wrote that suspicionless searches violated the students' Fourth Amendment rights.

A proponent of an individual's right to privacy, O'Connor also recognized the importance of open and transparent government. In Landano, she helped to strengthen the principles behind an open system of government by rejecting the FBI's inappropriate use of a FOIA exemption. Additionally, she worked to protect the individual's right to privacy by supporting an individual's reasonable expectation of privacy in the workplace.

O'Connor will no doubt be a difficult Justice to replace on the court. For over twenty years, she was a distinguished member of the court with great respect for our judicial system. Never one to be easily persuaded, Justice O'Connor will always be remembered as an independent thinker and a definite leader on the court.

Notable cases:

• Search and Seizure-- United States v. Place, 462 U.S. 696 (1983).

  Justice O'Connor, writing for the majority, expressed concern that the defendant's detention was too long to constitute a mere Terry stop. She stated that the defendant's Fourth Amendment rights had been violated when Police stopped the defendant at an airport for an hour and a half and detained his luggage while waiting for a drug-sniffing dog. O'Connor did, however, uphold the canine sniff as sui generis. Severely criticizing the officers at the airport, O'Connor wrote:

  In this case, the Government asks us to recognize the reasonableness under the Fourth Amendment of warrantless seizures of personal luggage from the custody of the owner on the basis of less than probable cause, for the purpose of pursuing a limited course of investigation, short of opening the luggage, that would quickly confirm or dispel the authorities' suspicion. Specifically, we are asked to apply the principles of Terry v. Ohio, supra, to permit such seizures on the basis of reasonable, articulable suspicion, premised on objective facts, that the luggage contains contraband or evidence of a crime. In our view, such application is appropriate. ...

  At the outset, we must reject the Government's suggestion that the point at which probable cause for seizure of luggage from the person's presence becomes necessary is more distant than in the case of a Terry stop of the person himself. The premise of the Government's argument is that seizures of property are generally less intrusive than seizures of the person. While true in some circumstances, that premise is faulty on the facts we address in this case. The precise type of detention we confront here is seizure of personal luggage from the immediate possession of the suspect for the purpose of arranging exposure to a narcotics detection dog. Particularly in the case of detention of luggage within the traveler's immediate possession, the police conduct intrudes on both the suspect's possessory interest in his luggage as well as his liberty interest in proceeding with his itinerary. The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or to arrange for its return. Therefore, when the police seize luggage from the suspect's custody, we think the limitations applicable to investigative detentions of the person should define the permissible scope of an investigative detention of the person's luggage on less than probable cause. Under this standard, it is clear that the police conduct here exceeded the permissible limits of a Terry-type investigative stop.

  462 U.S. at 702, 708

• Privacy -- O'Connor v. Ortega, 480 U.S. 709 (1987).

  Writing for a plurality of the Court, Justice O'Connor significantly expanded the Constitutional right to privacy when she wrote that there is a reasonable expectation of privacy in the workplace. Dr. Ortega of the Napa State Hospital was accused of work-related misconduct, and Hospital officials searched his office when they sent him on administrative leave. While the opinion was narrow, noting that customs in the office influence the degree of privacy available, it was nonetheless an important step, in line with changing cultures and business practices. O'Connor wrote:

  Doctor Ortega of the Napa State Hospital was accused of work-related misconduct. Hospital officials sent him on administrative leave and then searched his office. ...

  Given the societal expectations of privacy in one's place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.

  480 U.S. at 717

• Search and Seizure -- Florida v. Riley, 488 U.S. 445 (1989).

  Justice O'Connor wrote a separate concurrence in which she noted that it was strange for the Court to justify its holding based on FAA regulations. A Florida police officer, who suspected that Riley was growing marijuana in his fenced-off backyard, flew a helicopter 400 feet off the ground to observe the area from above. A four-justice plurality held that, because FAA regulations allowed helicopters to fly at an altitude of 400 feet, Riley had no reasonable expectation of privacy in his backyard.

  I write separately, however, to clarify the standard I believe follows from California v. Ciraolo, 476 U.S. 207 (1986). In my view, the plurality's approach rests the scope of Fourth Amendment protection too heavily on compliance with FAA regulations whose purpose is to promote air safety, not to protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., Amdt. 4.

  488 U.S. at 452

• Open Government -- Department of Justice v Landano, 508 U.S. 165 (1993).

  Justice O'Connor, writing for the majority, rejected the FBI's claim and limited its use of FOIA Exemption 7(D), which exempts agency records compiled for law enforcement purposes during the course of a criminal investigation.

  Although the Government sometimes describes its approach as "categorical," the proposed rule is not so much categorical as universal, at least with respect to FBI sources. The Government would have us presume that virtually every source is confidential: the paid informant who infiltrates an underworld organization; the eyewitness to a violent crime; the telephone company that releases phone records; the state agency that furnishes an address. ... Although we recognize that confidentiality often will be important to the FBI's investigative efforts, we cannot say that the Government's sweeping presumption comports with "common sense and probability."

  508 U.S. at 175

• Recordkeeping Systems -- Arizona v. Evans, 514 U.S. 1 (1995).

  Justice O'Connor wrote a separate concurrence to express concern about the reliance on error-prone recordkeeping systems.

  While the police were innocent of the court employee's mistake, they may or may not have acted reasonably in their reliance on the recordkeeping system itself. Surely it would not be reasonable for the police to rely, say, on a recordkeeping system, their own or some other agency's, that has no mechanism to ensure its accuracy over time and that routinely leads to false arrests, even years after the probable cause for any such arrest has ceased to exist (if it ever existed). ...

  In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.

  514 U.S. at 17-18.

• Student Drug Testing -- Vernonia School District v. Acton, 515 U.S. 646 (1995).

  Justice O'Connor's dissent on the drug testing of high school athletes was based on the belief that these “suspicionless” searches were unreasonable within the meaning of the Fourth Amendment.

  But whether a blanket search is "better" than a regime based on individualized suspicion is not a debate in which we should engage. In my view, it is not open to judges or government officials to decide on policy grounds which is better and which is worse. For most of our constitutional history, mass, suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment.

  515 U.S. at 667-668.

• Search and Seizure -- City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

  Justice O'Connor, writing for the majority, stated that drug checkpoints are in violation of the Fourth Amendment protection against unreasonable searches and seizure.

  We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. 440 U.S. at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.

  531 U.S. at 41.

• Search and Seizure -- Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

  Justice O'Connor, writing for the dissent, stated that the police officer's arrest of Atwater for a seat belt violation was unreasonable.

  The Fourth Amendment guarantees the right to be free from ‘unreasonable searches and seizures.' The Court recognizes that the arrest of Gail Atwater was a ‘pointless indignity' that served no discernible state interest and yet holds that her arrest was constitutionally permissible. Because the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment, I dissent. ...

  The majority gives a brief nod to this bedrock principle of our Fourth Amendment jurisprudence, and even acknowledges that 'Atwater's claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.' But instead of remedying this imbalance, the majority allows itself to be swayed by the worry that 'every discretionary judgment in the field [will] be converted into an occasion for constitutional review.' It therefore mints a new rule that 'if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.' This rule is not only unsupported by our precedent, but runs contrary to the principles that lie at the core of the Fourth Amendment.

  532 U.S. at 360-362

• First Amendment -- Watchtower Bible & Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002).

  An ordinance of the Village of Stratton required certain door-to-door solicitors to register with the city. The Supreme Court rejected this ordinance as an unconstitutional restriction on free speech and anonymity. During oral argument, Justice O'Connor wittily denounced the ordinance as overbroad and asked if it applied to trick-or-treaters as well. Listen to the argument.
  
  Justice O'Connor joined the opinion for the Court which said:

  To the contrary, the Village's administration of its ordinance unquestionably demonstrates that the provisions apply to a significant number of noncommercial "canvassers" promoting a wide variety of "causes." Indeed, on the "No Solicitation Forms" provided to the residents, the canvassers include "Camp Fire Girls," "Jehovah's Witnesses," "Political Candidates," "Trick or Treaters during Halloween Season," and "Persons Affiliated with Stratton Church." The ordinance unquestionably applies, not only to religious causes, but to political activity as well. It would seem to extend to "residents casually soliciting the votes of neighbors," or ringing doorbells to enlist support for employing a more efficient garbage collector.

  The mere fact that the ordinance covers so much speech raises constitutional concerns. It is offensive -- not only to the values protected by the First Amendment, but to the very notion of a free society -- that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

  536 U.S. at 165.

• Student Drug Testing -- Board of Education v. Earls, 536 U.S. 822 (2002).

  Justice O'Connor dissented from the court's opinion which allowed drug testing for high school students who participated in any extracurricular activity.

  I dissented in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995), and continue to believe that case was wrongly decided. Because Vernonia is now this Court's precedent, and because I agree that petitioners' program fails even under the balancing approach adopted in that case, I join JUSTICE GINSBURG's dissent. ...

  It is a sad irony that the petitioning School District seeks to justify its edict here by trumpeting "the schools' custodial and tutelary responsibility for children." Vernonia, 515 U.S. at 656. In regulating an athletic program or endeavoring to combat an exploding drug epidemic, a school's custodial obligations may permit searches that would otherwise unacceptably abridge students' rights. When custodial duties are not ascendant, however, schools' tutelary obligations to their students require them to "teach by example" by avoiding symbolic measures that diminish constitutional protections. "That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 637, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943).

  536 U.S. at 842, 855.

• States' Rights -- Gonzales v. Raich, 125 S. Ct. 2195 (2005).

  Justice O'Connor, writing for the dissent in the medical marijuana case, defended the basic principles of federalism and state's rights.

  We enforce the ‘outer limits' of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. ...

  This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); Whalen v. Roe, 429 U.S. 589, 603, n. 30, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause -- nestling questionable assertions of its authority into comprehensive regulatory schemes -- rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U.S. 598, 146 L. Ed. 2d 658, 120 S. Ct. 1740 (2000). Accordingly I dissent.

  125 S. Ct. at 2220-2221.

Last modified: July 14, 2005
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