The States' champion: Sandra Day O'Connor was an eloquent defender of the states' role in our federal system.

Sandra Day O'Connor was a pioneer for women before she was named to the Supreme Court in 1981. A decade earlier, she was the first woman to be the majority leader of the Arizona Senate. And in her long career at the U.S. Supreme Court, she brought to the bench not just a female presence, but the distinctive perspective of a state legislator.

She was interested in facts and fairness more than in following a theory as to how cases should be decided. In death penalty cases, for example, O'Connor served with liberal justices who nearly always voted to strike down death sentences as unconstitutional. She also served with conservatives who believed the Supreme Court had no business second guessing the state courts, judges and juries who had found a defendant guilty and deserving of death.

O'Connor was in neither camp. While she firmly believed the death penalty was constitutional, she also voted sometimes to reverse death sentences when there was reason to doubt the defendant's guilt. Lawyers on both sides of such a case knew she would be thoroughly prepared for the oral argument and at least open to persuasion.

Her fellow Arizona legislators remembered her as being well-prepared and a stickler for detail. "She worked interminable hours and read everything there was," Democratic Senator Alfredo Gutierrez recalled. "We'd go on the floor with a few facts and let rhetoric do the rest. Not Sandy. She would overwhelm you with her knowledge."

Except for the reference to "Sandy," veteran lawyers at the Supreme Court would recognize and repeat such a description. She was famous for asking factual questions about the early stages of a case that might have gone for years. Lawyers knew that they too had to be thoroughly prepared.

"Any lawyer who walked up to that podium had to be thinking about Justice O'Connor and how you could possibly win her vote," said Washington attorney Carter G. Phillips. Since O'Connor was so often the deciding vote in a court that was evenly divided between a conservative and liberal factions, the oral arguments often sounded as though they were steered toward her.

A VOICE FOR THE STATES

But the emphasis on O'Connor's being a "swing vote" in the Supreme Court understates her significance and her contribution to the law. She was the Court's strongest voice for states' rights, and she laid the groundwork for restoring the principle that the sovereign states have an equal role in the nation's governance.

She often spoke for the Court in cases involving the states, and she used the opportunity to set out a broad defense of the state's role. In 1991, it was a case testing whether Missouri's then-Governor John Ashcroft could enforce a state law that required judges to retire at age 70. Judge Ellis Gregory sued, contending this mandatory retirement rule violated the federal law against age discrimination.

"Our Constitution establishes a system of dual sovereignty between the states and the federal fovernment," O'Connor wrote. "This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the states in competition for a mobile citizenry ... Perhaps the principal benefit of the federalist system is a check on abuses of government power. A healthy balance of power between the states and the federal government will reduce the risk of tyranny and abuse from either front."

In Gregory v. Ashcroft, O'Connor went on to hold that the states have the power to "determine the qualifications of their most important government officials. [This] is an authority that lies at the heart of representative government. It is a power reserved to the states," she wrote.

A year later, O'Connor spoke for the Court in a case that tested whether federal regulators could force the states to locate nuclear waste facilities within their borders. She set out the broad rule that the feds may not "commandeer" the states and force them to carry out a federal regulatory scheme.

"States are not mere subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the federal government. The positions occupied by state officials appear nowhere on the federal government's most detailed organizational chart," she wrote in New York v. U.S. "Whatever the outer limits of that sovereignty may be, one thing is clear: the federal government may not compel the states to enact or administer a federal regulatory program."

SOVEREIGN IMMUNITY 

O'Connor joined with Chief Justice William H. Rehnquist in laying out the theory that the states have a "sovereign immunity" under the 11th Amendment that shields them from being sued under various federal laws. In 1996, in Seminole Tribe v. Florida, it was the Indian Gaming Regulatory Act. It was the federal Fair Labor Standards Act in Alden v. Maine in 1999. Then in 2000, it was federal anti-age discrimination act in Kimel v. Florida. And in 2001, it was the state employees and the Americans with Disabilities Act in University of Alabama v. Garrett. All of these were 5-4 decisions, with O'Connor in the majority.

In this, her last year on the Court, she found herself in dissent more often than before. But until the end, she remained a steady defender of the states. She dissented in Granholm v. Heald when a 5-4 majority ruled that the federal protection for interstate commerce overrode the state laws that prohibit direct shipments of wine to consumers.

She spoke up most strongly in defense of the principle that the states and their people have the right to make their own decisions on core matters of crime, health and family. It came in the case testing California's medical marijuana law, a measure O'Connor said she would not have supported as a citizen or a legislator.

But Californians did choose to exempt medical marijuana from their criminal law, and that choice should be honored, she said. "One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that 'a single courageous state may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country,'" she said, quoting Justice Louis Brandeis from a 1932 dissent.

She faulted her colleagues in Gonzales v. Raich for upholding the power of federal agents to arrest sick people who grow marijuana at home. "This overreaching stifles an express choice by some states, concerned for the lives and liberties of their people, to regulate marijuana differently," she wrote in a dissent joined by Rehnquist and Justice Clarence Thomas. "Whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected."

It made for a fitting final comment for a justice who began her career as a state legislator and state judge and ended it as the Supreme Court's most eloquent defender of the states' special role in the American system of government.

STATE LEGISLATORS ON THE HIGH COURT IN THE 20TH CENTURY

With the departure of Sandra Day O'Connor, the current U.S. Supreme
Court will have no members who have previously served in elected
office. There were 10 former legislators on the Court in the 20th
century.

                                          Years with
Name                  Title               the Court

Melville W. Fuller    Chief justice       1888-1910
Joseph McKenna        Associate justice   1898-1925
Edward D. White       Chief justice       1910-1921
Willis Van Devanter   Associate justice   1911-1937
Joseph R. Lamar       Associate justice   1911-1916
Mahlon Pitney         Associate justice   1912-1922
George Sutherland     Associate justice   1922-1938
Stanley F. Reed       Associate justice   1938-1957
Harold H. Burton      Associate justice   1945-1958
Sandra Day O'Connor   Associate justice   1981-

Name                  Legislature

Melville W. Fuller    Illinois House
Joseph McKenna        California House
Edward D. White       Louisiana Senate
Willis Van Devanter   Wyoming Territory Legislature
Joseph R. Lamar       Georgia Legislature
Mahlon Pitney         New Jersey Senate
George Sutherland     Utah Senate
Stanley F. Reed       Kentucky General Assembly
Harold H. Burton      Ohio House of Representatives
Sandra Day O'Connor   Arizona Senate