Justice O'Connor Replaces Justice Stewart: What Effect on Constitutional Cases?
January 1, 1982
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Justice O'Connor Replaces Justice Stewart: What Effect On Constitutional Cases?
CHARLES D. KELSO*
Potter Stewart, a Republican from Ohio, was appointed to the Supreme Court of the United States in 1958 by President Eisenhower. By the time of his retirement in 1981, Justice Stewart had served through the Warren years and the first decade of the Burger era.1 Pres ident Reagan appointed Sandra Day O'Connor to fill the vacancy. A Republican from Arizona, she served in its legislature and on its Court of Appeals. Lawyers who follow decisions of the Court are asking what difference her appointment will make in constitutional cases.
The question can be approached by studying the most recent term of the Court. From the pattern of votes, particularly how Justice Stewart stood in the 5-4 decisions, some inferences can be drawn. Another ap proach is to look back at 5-4 decisions in previous years where Justice Stewart's vote with the majority was crucial to the outcome. Both ap proaches will be explored in this article.
During its 1980-81 term, the Supreme Court decided and wrote opin ions in 70 cases where constitutional issues were presented. The pat tern of votes was as follows:
J.D., 1950 University of Chicago; LL.M. 1962 Columbia University; LL.D., 1966 John Marshall Law School: J.S.D., 1968 Columbia University. Law Clerk to Mr. Justice Minton, 1950- 51; Former Associate Dean and Professor of Law, University of Miami, 1966-68; Professor of Law Indiana University; Professor of