"outsiders, not full members of the political community"

New York Times Editorial
July 2, 2005
O'Connor Held Balance of Power
By LINDA GREENHOUSE
WASHINGTON, July 1 - The O'Connor Court.

The phrase has been used so many times over so many years to describe the Supreme Court that it is nearly a cliché. Yet the simple words capture an equally simple truth: to find out where the court is on almost any given issue, look for Justice Sandra Day O'Connor.

If you are a lawyer with a case at the court, pitch your arguments to her. If your issue is affirmative action, or religion, or federalism, or redistricting, or abortion, or constitutional due process in any of its many manifestations, you can assume that the fate of that issue is in her hands. Don't bother with doctrinaire assertions and bright-line rules. Be meticulously prepared on the facts, and be ready to show how the law relates to those facts and how, together, they make sense.
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Until the pair of Ten Commandments decisions this week, which found her in dissent from the ruling that upheld a Ten Commandments monument on the grounds of the Texas Capitol, she had occupied a central position on the role of religion in public life.

Beginning with her earliest years on the court, Justice O'Connor adopted her own test for evaluating whether government policy amounted to an unconstitutional establishment of religion. Instead of a three-part test that the court used, she asked whether the government policy under review conveyed to nonadherents the message that they were "outsiders, not full members of the political community."

This led her to vote to prohibit public prayer at high school graduations and football games, but to insist on equal access for student religious publications and clubs. In 2002, she voted with the 5-to-4 majority that upheld the use of publicly financed tuition vouchers at religious schools. In her opinion this week concurring with the 5-to-4 majority that declared framed copies of the Ten Commandments hanging in Kentucky courthouses to be unconstitutional, she said the Constitution's religion clauses "protect adherents of all religions, as well as those who believe in no religion at all."
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http://www.nytimes.com/2005/07/02/politics/
politicsspecial1/02oconnor.html?th&emc=th