A Freshman Justice Confronts the Constitution: Justice O'Connor and the First Amendment

Published date01 September 1992
Date01 September 1992
DOI10.1177/106591299204500311
Subject MatterArticles
/tmp/tmp-17z6I1nNKHQHxE/input
A FRESHMAN
JUSTICE CONFRONTS
THE CONSTITUTION: JUSTICE O’CONNOR AND
THE FIRST AMENDMENT
PAULA C. ARLEDGE, Northeast Louisiana University
and
EDWARD V. HECK, San Diego State Uniaersity
he
question of how a new judge learns to function in the judi-
~ cial role is one that has long intrigued observers of the courts.
Many studies have explored this question of &dquo;freshman
socialization,&dquo; either focusing in detail on the role learning of a single
judge (Howard 1965, 1985; Heck 1979) or seeking general patterns in
the experience of groups of new judges (Alpert, Atkins, and Ziller
1979; Wasby 1989). In a study of the socialization of federal district
judges, Carp and Wheeler (1965: 390) concluded that the process is &dquo;a
highly unstructured ad hoc phenomenon&dquo; that emphasizes self-learning
through informal conversations with colleagues and gradual immer-
sion in the decision-making process.
The role of Supreme Court justice, in particular, seems to be one
that must be learned gradually through interaction with experienced
colleagues. Even justices with many years of prior judicial experience
have testified to the difficulty of learning the role (Frankfurter 1957:
786). Looking back on his own freshman years, Justice Brennan (1973:
484) declared, &dquo;I expect that only a Justice of the Court can know ...
how arduous and long is the process of developing the sensitivity to
constitutional adjudication that marks the role.&dquo;
Studies of the socialization of Supreme Court justices have often
identified three distinct types of &dquo;freshman effects&dquo; (Heck and Hall
1981: 853-55; Melone 1990: 6). First, newly appointed justices are
said to be overwhelmed - even bewildered - by the Court’s caseload
and their own responsibilities for constitutional adjudication on the
nation’s court of last resort. Second, senior justices allegedly ease the
opinion-writing burden on newly appointed justices by assigning fresh-
men fewer and less complex opinions than are assigned to veteran
members of the Court. Finally, freshman justices are believed to avoid
Received: July 16, 1990
Accepted for Publication: September 11, 1991


762
alignments with established voting blocs during their early years on
the Court, a voting pattern said to be consistent with the uncertainty
inherent in the role of freshman justice.
Recent empirical studies have established that neither the bloc vot-
ing nor opinion assignment types of freshman effects have a major
impact on the functioning of the modern Supreme Court. The early
conclusion of Snyder (1958) that freshman justices are generally assim-
ilated to the Court through membership in a pivotal clique or centrist
bloc, becoming associated with ideologically identifiable liberal or con-
servative blocs only later in their Supreme Court careers, has been
consistently rejected. Most justices appointed since 1953 - including all
three associate justices appointed by President Reagan-have not exhib-
ited voting patterns once thought to be characteristic of confused fresh-
men, but have joined with ideological allies to form voting blocs early
in their judicial careers (Heck and Hall 1981; Scheb and Ailshie 1985;
Rubin and Melone 1988; Melone 1990). Studies of opinion assign-
ment patterns indicate that freshman justices tend to carry a slightly
reduced load and to be assigned relatively routine cases for a brief
period, but to be treated much like veteran members of the Court after
one or two terms (Slotnick 1979; Melone 1990).
Still, we cannot dispense entirely with the notion of freshman
effects. Although the bewilderment hypothesis is difficult to examine
empirically, the testimony of the justices themselves suggests that there
is a breaking-in period as a justice develops the &dquo;sensitivity to consti-
tutional adjudication&dquo; expected of members of the nation’s highest
court. While like-minded senior colleagues could serve as a reference
point for a justice’s voting decisions, a new justice must learn by doing
when it comes to opinion writing.
In short, voting studies alone are not sufficient to answer basic
questions about how the Supreme Court assimilates its new members.
Case studies focusing on the opinions written by newly appointed jus-
tices are needed to round out our understanding of freshman effects.
Thus, we have undertaken a case study of the opinions of Justice
O’Connor in cases decided on First Amendment grounds during her
five years as the Court’s junior justice.
O’CONNOR AND THE FIRST AMENDMENT
O’Connor’s First Amendment opinions provide an appropriate focus
for this type of study because her previous political and judicial expe-


763
rience provided limited opportunity to deal with freedom of speech
and related questions. As a trial judge and intermediate appellate
court judge in Arizona, O’Connor heard and decided few, if any, cases
turning on First Amendment issues (Schenker 1982: 491). If O’Connor
was subject to a freshman effect in any area of the law, it seems rea-
sonable to think it would be apparent in her votes and opinions in
these First Amendment cases. In this study, then, we will examine
Justice O’Connor’s early First Amendment opinions in hopes of shed-
ding some light on the question of how a Supreme Court justice whose
prior judicial experience offered very limited exposure to constitutional
issues learned to deal with a set of important questions that occupy a
prominent position on the docket of the modern Supreme Court.’
I
If freshman justices are initially uncertain about their performances,
we would anticipate that new justices dealing with an unfamiliar area
of the law would be likely to avoid complicated issues at the beginning
and stick to widely accepted doctrines. Early opinions in a particular
area should rely on relatively simple and straightforward approaches
or perhaps on consititutional theories identified with like-minded senior
colleagues. Only as new justices gain experience and confidence would
we anticipate opinions that elaborated more complex...

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