By Patricia Zapor
Catholic News Service
(From the issue of 7/7/05)

WASHINGTON (CNS) -- The pending retirement of Justice Sandra Day O'Connor from the Supreme Court has set in motion a battle over her replacement that will run through the summer, but it also highlights a remarkable judicial career.

O'Connor's July 1 announcement that she would retire as soon as her replacement can be confirmed ends an era for not only the first woman on the Supreme Court but of someone who for years was "the most powerful person in America," as she was described by Mark Chopko, general counsel for the U.S. Conference of Catholic Bishops.

"She sits smack in the middle" of many crucial decisions made by the court since she was named to it in 1981, Chopko explained.

Chopko said that O'Connor always took great pains to decide a case based on the facts of the individual case. That made it difficult to predict which side she would take, he said.

"For her the issues were always fact-intensive," said Chopko. "You had to persuade her your side was correct. You couldn't say going in 'this is where she'll be.'"

When O'Connor, then an Arizona Appeals Court judge, was nominated, much of the attention focused on her status as the first woman named to the high court. But her record as a former state legislator made the president of the U.S. bishops' conference wary.

Archbishop John R. Roach of St. Paul-Minneapolis wrote in a column in his archdiocesan newspaper that "her record in Arizona on the pro-life issue was questionable." The general secretary of the bishops' conference at the time, then-Bishop Thomas C. Kelly, said he found O'Connor's views on tuition tax credits, the death penalty and abortion to be disturbing.

In her confirmation hearings, O'Connor said she found abortion repugnant and offensive, but said judges' personal views should be ignored when such issues came before the court. Pro-life organizations bitterly attacked her legislative record and contacted the White House to complain about President Ronald Reagan's first selection for the court.

After 24 terms on the court, O'Connor's record on those issues both validated and contradicted that early wariness about her role.

She has upheld restrictions on abortion, but stopped short of reversing Roe vs. Wade. She has upheld death sentences and capital punishment laws, but recently voted to overturn the death penalty for people who are mentally retarded. O'Connor has supported tax-funded programs in religious schools but said states do not have to include religious ministry students in scholarship programs.

Chopko said a measure of the power he attributes to O'Connor is the frequency with which she has been on the majority side in key 5-4 decisions. In many of those cases, she wrote the decisive opinion.

In Planned Parenthood vs. Casey in 1992, O'Connor wrote for a 5-4 majority that upheld the central principles of Roe vs. Wade, the 1973 decision that legalized abortion. In the same case, she was part of a 7-3 majority of justices who upheld provisions of the Pennsylvania law requiring informed consent, a waiting period and parental notification before abortions may be obtained.

Other close cases where O'Connor was in the majority included:

-- The 1989 5-4 ruling that upheld the right of Missouri to impose restrictions on access to abortion but refused to reverse Roe.

-- A 1989 5-4 decision that said government-sponsored religious displays are permissible if they do not have the effect of promoting or endorsing religious beliefs. Using that standard, the court said a Nativity scene inside the Allegheny County Courthouse in Pittsburgh was not allowed.

-- The 1990 5-4 decision that upheld the state of Missouri's interests in preserving life over the family's wishes to withdraw nutrition and hydration from Nancy Cruzan, who was in a persistent vegetative state.

-- The 1992 5-4 ruling in Lee vs. Weisman that said even nonsectarian prayers are inappropriate at public school graduation ceremonies.

-- A 1995 ruling of 5-4 that said the University of Virginia was wrong to deny funding to a student newspaper because of its religious content.

-- A 1997 5-4 decision that reversed the court's own 1985 ruling on tax-funded remedial education programs held in religious schools. O'Connor wrote that "our Establishment Clause law has significantly changed" and that a New York program permitting state-funded remedial programs did not run afoul of criteria to evaluate whether government aid has the effect of advancing religion.

-- A 5-4 decision in 2000 that rejected Nebraska's law prohibiting partial-birth abortions. In a concurring opinion, O'Connor said the question before the court would have been quite different if the statute included an exception for when the pregnant woman's life and health were in danger.

-- The 2002 5-4 ruling upholding Cleveland's school voucher program, which includes religious schools. In a separate concurrence, O'Connor noted that the funding involved is not substantial and is not unlike government funding that goes to religious institutions through tax credits and exemptions, public health programs and grants for college education, housing and community development.

O'Connor joined the 6-3 majority in 2002 in overturning the death penalty for people who are mentally retarded. But in another 5-4 ruling in March that overturned the death penalty for juveniles, she was in the minority.