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The legacy of Justice O’Connor … and a justice for all

By Walt Brasch - posted Friday, 8 July 2005

The President of the United States was adamant about how he was conducting his so-called “war on terror”.

He believed he could classify anyone, even American citizens, as “enemy combatants”: hold them indefinitely in secret without charges ever being filed; deny protections of the Geneva Conventions; refuse the right to legal representation; and when it was in the administration’s best interest, try prisoners outside the established court system.

Under a “gag order” governing those held prisoner at the US Naval base at Guantánamo Bay, anyone who revealed information about anyone’s detention could be charged under the USA PATRIOT Act. The Bush administration further claimed the prisoners at Guantánamo Bay were on “foreign” soil and so not subject to American jurisprudence.


Several times in our nation’s history, the Supreme Court of the United States had ruled that fear and even terrorism might be a dominating concern, but that under the constitution observation of rights and of law are the best ways to preserve the democracy. Several times the court determined a president’s power, even in times of war, is not absolute.

In June 2004, that court dealt the Bush administration a major defeat in how it treated American citizens and by implication, others as well. In a stinging 33-page opinion, Justice Sandra Day O’Connor firmly stated:

It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad … The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action … It would indeed be ironic if, in the name of national defence, we would sanction the subversion of one of those liberties, which makes the defence of the Nation worthwhile.

[T]hreats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator … We have long since made clear that a state of war is not a blank cheque for the president when it comes to the rights of the Nation’s citizens. [E]ven the war power does not remove constitutional limitations safeguarding essential liberties. [T]he Great Writ of habeas corpus [is] an important judicial check on the Executive’s discretion in the realm of detentions ... [I]t would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.

Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short . . . [T]he constitutional limitations safeguarding essential liberties ... remain vibrant even in times of security concerns.

Nevertheless, even after the ruling, the “law-and-order” Bush administration continued to delay, trivialise and attempt to subvert the court’s decisions.


Justice O’Connor, who last week announced her resignation, was probably the one justice whose stinging rebuke of presidential excess represented not just her own opinion, but those of both the liberal and conservative wings, and why she had to be the one to write the court’s decision.

Justice O’Connor was Ronald Reagan’s first Supreme Court nomination, and after unanimous confirmation by the Democrat-controlled Senate she became the court’s first female justice. She had grown up on an isolated Arizona cattle ranch, entered Stanford University at the age of 16, graduated with a BA in economics, and then in two years, instead of the usual three, graduated from Stanford Law School, third in her class. (William Rehnquist was first.) But, she was denied employment innumerous times because she was female. Eventually, she became a prosecuting attorney, civilian lawyer for the army, Senate majority leader in Arizona (the first female to hold that position in the nation), and an Arizona appellate court judge.

At the time she was appointed to the Supreme Court, she was a political conservative, recommended to President Reagan by Senator Barry Goldwater, one of the nation’s most respected conservative politicians. During her 24-year court career, the independent Justice O’Connor usually thought through cases not on basis of political expediency or entrenched judicial philosophy, but on a case-by-case basis, therefore becoming the court’s swinging vote on innumerable issues. On 5-4 decisions, she was in the majority more than 90 per cent of the time.

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About the Author

Walter Brasch is professor of journalism at Bloomsburg University. He is an award-winning syndicated columnist, and author of 16 books. Dr. Brasch's current books are Unacceptable: The Federal Government’s Response to Hurricane Katrina; Sex and the Single Beer Can: Probing the Media and American Culture; and Sinking the Ship of State: The Presidency of George W. Bush (Nov. 2007) You may contact him at

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