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The stakes

Over at the Supreme Court Nomination Blog, Kevin Russell catalogs high-profile cases in which Justice O'Connor's vote has been essential to a 5-vote majority. Although the appointment of any life-tenured justice is exceptionally important, Justice O'Connor indeed represents the crucial swing vote on so many cases that the short- and medium-term implications of her retirement are enormous. O'Connor has provided the deciding vote for, inter alia, upholding affirmative action in university admissions, declaring "partial-birth" abortion bans unconstitutional, and upholding some school voucher programs. I'll chip in one more that's very important to me and with sweeping implications: O'Connor has been the deciding vote upholding "campaign finance reform" -- four other justices deem political contributions as speech afforded First Amendment protection. Little wonder that the nomination for her replacement is going to be a hot potato...

UPDATE: Russell has added to his list, which now includes as examples in which Justice O'Connor issued the deciding vote not only McConnell (campaign finance case) but also the Supreme Court's recent Booker decision, which threw into question the Federal Sentencing Guidelines -- a decision with monumental implications. Also of major significance are Justice O'Connor's federalism cases revivifying the commerce clause (Morrison and Lopez, although these cases look more like outliers in light of this year's decision in Raich) and upholding state sovereign immunity (Seminole Tribe).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.