It isn't just that O'Connor often emerges as the tiebreaker in an otherwise even split between conservatives and liberals. She often uses her deciding vote to achieve what in her view is a measure of justice. To do it requires a close examination, not only of the law, but often of the particular facts of a case. This ad hoc approach, unmoored from an overriding judicial philosophy, can sometimes make hers a difficult vote to predict.
This year was no different.
On the liberal side, she concurred in a landmark gay rights decision authored by Justice Anthony Kennedy. She chose women's rights over federalism in upholding the application of the federal Family Medical Leave Act to state employers. And she sided with the court's liberal wing in upholding a challenge to the use of client escrow accounts to underwrite legal services for the poor.
On the conservative side, she wrote two majority 5-4 decisions upholding California's Three Strikes Law, authorizing potential life prison terms for repeat shoplifters. In a key immigration case, she joined the conservative wing in a ruling that criminal aliens detained pending their removal proceedings do not have a constitutional right to challenge their automatic detention. And she joined a four-justice plurality upholding a federal law requiring libraries to use Internet filtering software to protect children from exposure to pornography on public library computers.
Perhaps the best example of O'Connor's influence came exactly a week ago Monday when she made history by writing a majority opinion that, in effect, split the difference between liberal court members favoring affirmative action and conservatives opposed to it.
What emerged from O'Connor's pen was an endorsement of a 25-year precedent allowing the limited use of race in college admissions to help achieve a diverse student population.