O'Connor's leftward drift helps account for the supposedly conservative Rehnquist Court's surprisingly liberal trend in recent years. So do the similar evolutions of Anthony Kennedy, another Reagan appointee, and John Paul Stevens, a once-moderate Ford appointee who is now the leader of the Court's liberal bloc. Not to mention the emergence of David Souter as a liberal soon after his appointment by the first President Bush. Kennedy or O'Connor (or both) often leave conservatives gnashing their teeth, by allying with Stevens, Souter, Breyer, and Ruth Bader Ginsburg, the only other Democratic (Clinton) appointee, against Rehnquist, Antonin Scalia, and Clarence Thomas.
This pattern explains the near-desperation with which conservative groups are urging the current President Bush to fill any vacancies with proven, principled, passionate conservatives. For better or worse (or some of each, as I see it), for complex reasons (explored in my July 7, 2003, column), Republican-appointed justices without ideological anchors tend to become more liberal over time.
Justice O'Connor is still conservative on some issues, as recently demonstrated by her passionate dissents in two cases: the 5-4 decision allowing use of eminent domain to take a person's property and give it to a private company, and the 6-3 decision narrowing states' rights. (Kennedy joined the liberals in both cases.) O'Connor also takes pains to avoid flat contradiction of her prior opinions. But her current views do contrast with positions that she once took on all four of the biggest culture-war issues: religion, abortion, racial preferences, and gay rights. Religion. O'Connor joined conservatives early on in some church-state decisions that seem hard to reconcile with her more recent opinions and votes. In 1983, she joined a 6-3 ruling that the Constitution permits a state legislature to pay a chaplain to open each day's session with a prayer; in 1984, she joined a 5-4 ruling that a city may include a Nativity scene as part of an official Christmas display. And she has consistently supported some government aid programs that benefit religious schools.
By 1985, however, O'Connor had begun to side with liberals in attacking governmental actions that appear to endorse religion. She joined in a 6-3 decision that year striking down an Alabama law that allowed a daily minute of silent meditation or prayer in the public schools. Her concurrence condemned any governmental "message that religion or a particular religious belief is favored or preferred." Since then, that view has led her to join decisions banning state-sponsored nondenominational prayers at public school graduation ceremonies (in 1992) and football games (in 2000).
So it was no great surprise on June 27 to see O'Connor joining liberals (including Breyer) in a 5-4 decision ordering removal of framed copies of the Ten Commandments that officials had recently, with a clear religious purpose, put on the walls of two Kentucky courthouses. It was a bit more surprising to see her part with Breyer by voting to order removal of a six-foot-high monument containing the Decalogue from the grounds of the Texas Capitol. That would have doomed dozens of similar monuments around the country. But in the Texas case she was in dissent, with Breyer (and Kennedy) joining the three conservatives. Breyer's concurrence said the Texas case was different because the monument had stood for 40 years with few objections and conveyed a mainly "moral and historical" message. Abortion. In her first two abortion cases, in 1983 and 1986, O'Connor voted (in dissent) to uphold some relatively mild restrictions. More important, she also asserted in her 1983 dissent that states have "compelling interests in the protection of potential human life ... throughout pregnancy," and that Roe v. Wade's three-trimester framework for regulating abortion was "on a collision course with itself." Such statements fostered speculation that she would eventually vote to overrule Roe.
But later in the 1980s, O'Connor began siding with the liberals on some issues. And in 1992, she joined a 5-4 decision reaffirming what the pivotal opinion—co-authored by O'Connor, Kennedy, and Souter—called "the essential holding of Roe v. Wade." While they upheld a 24-hour waiting period and some other previously forbidden restrictions, this was a seismic defeat for the right-to-life movement.