(10 of 11)
O'Connor shares with Rehnquist more than a Stanford background; both are Republicans from Arizona who have Barry Goldwater's favor. Nonetheless, legal scholars doubt that O'Connor will become a clone of the court's leading conservative. They do not expect a pair of "Arizona twins" to develop and to hang together any more consistently than have the now-splintered "Minnesota twins," Burger and Blackmun. Broadly speaking, the court now has two liberals, Brennan and Marshall, in a standoff facing two conservatives, Rehnquist and Burger. The decisions thus often depend on how the other so-called fluid five divide on a given case. And that rarely can be foreseen.
Blackmun, who has moved increasingly to the left, probably works harder than the other judges on his decisions, which often reflect his ad hoc, personal sense of right and wrong. The courtly Virginian, Lewis Powell, is regarded as the great balancer, in the middle on almost every case. John Paul Stevens, the most original thinker on the court, is an iconoclastic loner who likes to file separate opinions that challenge old assumptions even when his conclusions coincide with those of his brothers. Byron White, the best pure lawyer on the court, is unpredictably liberal and unpredictably conservative, but meticulously careful about facts and precedent.
O'Connor is generally expected to fit into that shifting middle, as her predecessor Stewart did; thus her appointment, at least initially, is likely to be less decisive a factor than if she had replaced one of the men on either the left or the right.
At the very least, some court observers hope that her consensus-building experience as a legislator, with its premium on dealing with personalities, as well as the fact that she is a woman, will dissolve some of the aloofness among the brethren. There is little personal rapport and togetherness on the current court —and the Justices tend to communicate with one another only in writing. The result is often a series of individual opinions based on conflicting rationales that confuse the impact of a majority decision. Powell has called the court "nine one-man law firms." A touch of warmth and sociability could improve the court's effectiveness, no matter what direction it takes.
Some experts see the current court as a transitional tribunal poised between the social activism of the distinctly liberal Warren court and whatever might lie ahead. Despite four appointments made by Richard Nixon and one by Gerald Ford, the Burger bench has retreated surprisingly little from the pioneering decisions on school integration, procedural rights for criminal defendants, and the "one man, one vote" principle of legislative apportionment. Moreover, the Burger court has broken some new ground. It was unanimous in restricting Nixon's Watergate-era claims of Executive privilege. It has upheld affirmative action to correct past racial inequities in a moderate way. It has advanced women's rights against discrimination in employment to a notable degree.
Former Deputy Solicitor General Frank Easterbrook, professor of law at the University of Chicago, cites some less familiar areas where the Justices put their stamp. "They have completely overhauled antitrust law, by unanimous votes in many cases," he says.