Did O'Connor become more liberal

Bradley Joondeph BJoondeph at scu.edu
Mon Feb 26 07:57:43 PST 2007


This move probably should not be considered "left." But related to federalism, O'Connor's voting record seemed to change a bit in her last 12 years in preemption and dormant Commerce Clause cases. Relative to the other justices, she went from being mildly protective of state policymaking autonomy (in her first 12 years) to being the justice most likely to invalidate state laws on these grounds. (During the life of the 11-term natural court of 1994 to 2005, she sided with the states in only about 25% of the Court's non-unanimous decisions on these issues.)

Brad Joondeph

Associate Professor and Associate Dean for Faculty Development
Santa Clara University
School of Law
500 El Camino Real
Santa Clara, California 95053
408.554.4726

SSRN author page: http://ssrn.com/author=352388

>>> earl maltz <emaltz at camden.rutgers.edu> 2/26/2007 7:24 AM >>>
Given her dissent in Raich,  I don't see how one can plausibly claim that 
O'Connor moved left on federalism-related issues.

As to Kennedy, I've always believed that his voting pattern reflects a 
desire to be loved by the Washington establishment.  His jurisprudence is 
basically that of the liberal wing of the Episcopal Church (even though he 
is a Catholic).

At 08:56 AM 2/26/2007 -0600, Samuel Bagenstos wrote:
>Okay, but is this a *move* to the left?  That is, did Justice Kennedy
>ever take a more conservative position on the issues in Lopez (whose
>majority opinion he, after all, joined) and Term Limits?  Justice
>Kennedy joined the majority in Printz a couple of years later, even
>though his colleague in the New York majority, Justice Souter, moved to
>the dissenting side in that case.  If anyone, it's Justice Souter who
>moved left on federalism.
>
>Samuel R. Bagenstos
>Professor of Law
>Washington University Law School
>One Brookings Drive, Box 1120
>St. Louis, MO  63130
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>Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198 
>Disability law blog:  http://disabilitylaw.blogspot.com/ 
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall
>Sent: Monday, February 26, 2007 8:37 AM
>To: earl maltz; conlawprof at lists.ucla.edu 
>Subject: Re: Did O'Connor become more liberal
>
>I always thought Kennedy also moved to the left for that reason, though
>I have no hard evidence. Kennedy's vote in Term Limits, and his separate
>concurrence (which O'Connor joined) in Lopez seem like responses to
>Thomas.
>
> >>> earl maltz <emaltz at camden.rutgers.edu> 2/26/2007 9:29 AM >>>
>I was watching an interview with Jan Greenburg about her new book on
>the
>Supreme Court, and she seemed to suggest that Sandra Day O'Connor moved
>to
>the left in response to the appointment of Clarence Thomas.  Other than
>the
>change in her position on gay right (which I think  reflects other
>forces),
>is there any evidence to support this view?
>
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