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The O'Connor legacy.

Article Excerpt
For years, commentators have talked about the "O'Connor Court." Since 1987, when Justice Lewis Powell retired, Sandra Day O'Connor has been considered the decisive vote in countless areas of constitutional law. Most years, she was in the majority in 54 decisions more often than any other justice.

But calling her the "swing vote" does not adequately capture her influence in a quarter of a century on the Supreme Court. In many of the most controversial areas of constitutional law, O'Connor has moved the Court in a more conservative direction, though never as far as the most conservative justices, Antonin Scalia and Clarence Thomas, would have done. Many of the tests O'Connor proposed have become the majority's approach.

Establishment Clause

Early in her Court tenure, O'Connor said the central principle for the First Amendment Establishment Clause should be that the government cannot symbolically endorse religion, either in general or a particular religion. In a concurring opinion in 1984's Lynch v. Donnelly, she found that a nativity scene on government property was permissible because it was not a symbolic endorsement of religion. (1) This was a significant departure from almost 40 years of Supreme Court decisions, which had emphasized the strict separation of church and state. (2)

Over time, the majority adopted O'Connor's view, making it the controlling test for the Establishment Clause. (3) Using this test, the Court overruled...

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