WASHINGTON – Her legacy not yet sealed, Justice Sandra Day O'Connor (search) is getting an unexpected final chance to select fights for the Supreme Court to take on and to influence colleagues in abortion, capital punishment and assisted suicide cases.
O'Connor's delayed retirement leaves in place — at least for a couple of months — a power broker, popular and respected among the other justices.
Her trademark pragmatic questions will shape court argument sessions that begin in two weeks. Behind-the-scenes, she will help put together the court's 2006 agenda which could include a challenge to the Bush administration's planned military tribunals for terror suspects.
"I don't believe she's a lame duck," said Artemus Ward, a political science professor at Northern Illinois University. "She'll exercise her authority and be counted."
O'Connor and her colleagues had thought the term would begin Oct. 3 without her.
At President Bush's request, she postponed her departure following the death this month of her longtime friend and former law school classmate, Chief Justice William H. Rehnquist (search).
Her temporary status still may lead to some 4-4 votes, delaying decisions in those cases.
"It will be a little weird for the other justices," said Geoffrey Stone, a law professor at the University of Chicago. "They've psychologically put her off the court."
The 75-year-old is expected to sit on the bench for the opening week, which includes arguments on assisted suicide and the rights of disabled school children. She appears prepared to stay awhile, rehiring a previous law clerk so she will have four young attorneys to help with the load.
"I think she'll feel like this is a bonus. She's always loved the job," said Marci Hamilton, a former O'Connor clerk who teaches at Yeshiva University's Cardozo School of Law. "The saddest thing for her was going to be not being at opening day."
She's still leaving, but it is not known when Bush will reveal his choice of a successor, or how long the confirmation will take. The president plans to meet Wednesday with Senate leaders to discuss the seat.
Appeals court Judge John Roberts (search), Bush's nominee for chief justice, is expected to be voted on Thursday in the Senate Judiciary Committee, and the full Senate should take up the nomination next week.
Roberts will not be confirmed in time, however, to take part in a private meeting next Monday, when nearly 2,000 appeals are to be discussed. As the court member second in seniority, O'Connor will speak second as justices decide which of those cases to review. Action on contested cases may be delayed until the court has its full complement of nine members.
After oral arguments in individual cases, O'Connor still will get to present her side and vote during conferences, private meetings open only to the justices.
Cases in which O'Connor would be the tie-breaking vote could be held up by opposing justices. Or, to avoid that situation, O'Connor might decline to break deadlocks. Cases with a 4-4 outcome would require a new argument session so the new justice could participate.
Because O'Connor, a moderate, is often a deciding vote on issues including abortion and capital punishment (search), deadlocks are likely. One example is an abortion (search) case set for argument Nov. 30. With O'Connor, the New Hampshire abortion law under review would probably be overturned. Without her, that is an open question. Several death penalty appeals are also being argued.
"The people who are burdened are the lawyers," said Hamilton. "Who are you talking to? Normally you would pitch your whole argument to her. You know the court is going to change."
O'Connor is not the first justice to announce a retirement, then delay it
Justice Thurgood Marshall served longer than he intended because of the lengthy Senate hearings for Clarence Thomas. Marshall announced in June 1991 that he would step down "when my successor is qualified."
After Thomas' confirmation hearings dragged on, the 83-year-old Marshall sent the White House a new letter on Oct. 1, advising the president that he was retiring immediately. That left the court with just eight members for the start of the term.
Decades earlier, Chief Justice Earl Warren announced his retirement, only to have a Senate filibuster and then a presidential election throw things off. Warren served a year longer.