Sandra Day O'Conner Term Paper

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O'Connor

Conference votes are not chiseled in marble; they are subject to change after the justices read their colleagues' draft opinions. And read them they do, thoroughly and carefully. They write thoughtful (in both senses of the word) memos about these opinions. All this, of course, confirms what earlier studies have reported.

What Courts, Judges, and Politics makes clear is that changes in outcome between conference vote and final decision are far from unusual. Equally impressive are the justices' conscientious (though not always successful) efforts to reach decisions by consensus rather than simple majority.

Though they are too few to prove, in a variety of cases, some justices have more collegial impact than others; Sandra Day O'Connor and Anthony Kennedy are frequent players, for instance, while Antonin Scalia is not.

But the most striking pattern is the absence of pattern; collegial consultation does not consistently move the Court to the right, to the center, or toward either activism or restraint.

Webster v. Reproductive Health Services, decided in 1989, brought the retreat from Rehnquist's initially successful effort to get a majority to overrule Roe v. Wade, and has proved permanent.

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Hodgson v. Minnesota (1990) upheld a parental-notification-with-judicial-bypass restriction on minors' abortion rights. However, its invalidation of a two-parent notification rule, containing "O'Connor's first vote to strike down an abortion restriction, has proved the Thermidor for the would-be Rehnquist 'revolution' (to use the term in Justice Blackmun's draft Webster dissent) in abortion law."

Collegial deliberation in criminal procedure cases has also checked the reformist impulse, temporarily at least. Missouri v. Blair (1987), for example, transmogrified from an "important Fourth Amendment case" into "not even a footnote in recent Supreme Court jurisprudence." A two-step process turned a five to four conference vote to allow police to use strategic arrests for minor offenses to investigate major crimes into a "DIG" (dismissing the writ of certiorari as improvidently granted.) Lewis Powell's draft dissent convinced O'Connor to change her vote; the new….....

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