O’Connor, J., Concurring

January 1989

O’Connor, J., Concurring
ITEM DETAILS
Type: Law review article
Author: Alexander Wohl
Source: A.B.A. J.
Citation: 75 A.B.A. J. 42 (1989)

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Supreme Court Report

O'Connor, J., Concurring

BY ALEXANDER WOHL
Alexander Wohl is a freelance writer in Washington, D.C.

If Justice Oliver Wendell Holmes Jr. was "the great dissenter," does that make Justice Sandra Day O'Connor "the great concurrer"?

In delicate areas of the law it has become almost commonplace for 5-4 rulings by the Court's conservative bloc to be embroidered-and often limited-by an O'Connor concurrence. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court's ideological spectrum. In this sense she has assumed or at least draped over one shoulder the moderate mantle of retired Justice Lewis F. Powell Jr.

Steven Katlett, who clerked for O'Connor two years ago and is now an associate with Jones, Day, Reavis & Pogue in Columbus, Ohio, thinks that "she appreciates [Powell's] views and for this reason, as well as her general philosophy, she won't sign on to wholesale revamping of Warren and Burger Court decisions."

Another former O'Connor clerk states that O'Connor "is concerned about judicial activism, not in a political sense, but in the real sense that the Court should not jump into an issue just because it is controversial, but should try to be somewhat stable and consistent until it is really confronted with a situation where it has to make a change."

In Pembauer v. City of Cincinnati (475 U.S. 469 [1986]), for

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