The Dissenter in Diguise
By Nicole PelletierNicole Pelletier, a 2011 graduate of Albany Law School, was a Senior Editor for the Center. She is currently an Associate at Athari & Associates, LLC in Utica, New York. While in law school, she interned with the Family Violence Litigation Clinic, the New York State Governor's Office of Regulatory Reform, and the New York State Division of Human Rights.
Nicole prepared this paper for Professor Bonventre's Judicial Process Seminar.
At the time of Sandra Day O'Connor's appointment to the U.S. Supreme Court, there was skepticism among Republicans as to how she would rule on issues such as abortion and the death penalty. The best classification of her views on these subjects is moderate.
Her appointment to the Court by Republican President Reagan and, three years prior, her appointment to the Arizona Court of Appeals by a Democratic Governor, only supplement this classification. What was not foreseen, and could not have been, was O'Connor's propensity to write concurring opinions that read much more like dissenting opinions.
Traditionally, when a judge or justice writes a concurring opinion, it is to state that they agree with the majority opinion but offer an alternate analysis of the case. However, Justice O'Connor's concurring opinions do more than offer a slightly different analysis or clarify her reasoning. More often than not, O'Connor's concurring opinions read like dissents.
Justice O'Connor disguised her opinions well. She would agree with the majority's decision in a case, but then dismantle their rationale for reaching such a decision--to the point that midway through the opinion, one would expect her to reach the opposite conclusion from that of the majority.
This paper analyzes Justice O'Connor's concurring opinions throughout her twenty-five years on the Supreme Court.*
_____________________________
Her appointment to the Court by Republican President Reagan and, three years prior, her appointment to the Arizona Court of Appeals by a Democratic Governor, only supplement this classification. What was not foreseen, and could not have been, was O'Connor's propensity to write concurring opinions that read much more like dissenting opinions.
Traditionally, when a judge or justice writes a concurring opinion, it is to state that they agree with the majority opinion but offer an alternate analysis of the case. However, Justice O'Connor's concurring opinions do more than offer a slightly different analysis or clarify her reasoning. More often than not, O'Connor's concurring opinions read like dissents.
Justice O'Connor disguised her opinions well. She would agree with the majority's decision in a case, but then dismantle their rationale for reaching such a decision--to the point that midway through the opinion, one would expect her to reach the opposite conclusion from that of the majority.
This paper analyzes Justice O'Connor's concurring opinions throughout her twenty-five years on the Supreme Court.*
_____________________________
* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.
