Two Cheers for Justice O'Connor
James W. Ely Jr.
This essay assesses the performance of Justice Sandra Day O’Connor with respect to the constitutional rights of property owners, and argues that her property jurisprudence was an assortment of different and contradictory elements. In short, the O’Connor legacy is more complex than her vigorous dissent in Kelo v. City of New London (2005) might suggest. Curiously, Justice O’Connor’s property rights decisions are a relatively underexplored dimension of her Supreme Court career. Even admiring studies of her work on the Court give scant attention to property-related issues. Certainly there is much to applaud in O’Connor’s record on this topic. She often joined with the majority of the Rehnquist Court as it cautiously sought to strengthen the rights of property owners. Although O’Connor helped property rights make a modest comeback in constitutional law, her overall voting pattern was somewhat ambivalent and left ample room for the regulatory state. Moreover, O’Connor’s interest in property seemed to wax and wane over her years on the bench.
1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 149 (2012)