Legal News

?A Case About a Wolf Named Dutchess?: On Justice O?Connor?s New Gig

By Ashby Jones

We’re of two minds (as we so often are on things) on the current sojourns of Sandra Day O’Connor, which include stints as a guest judge on various federal courts of appeal.

On the one hand, we get it: After 24 years as a justice on the Supreme Court, it probably felt like high time to try something new (part of her motivation for retiring was also to take care of her ailing husband). At the same time, it must be a bit deflating. Writes the WSJ’s Supreme Court reporter Jess Bravin in an article out on Tuesday, “nowadays, she decides such matters as whether a drug dealer could escape punishment because a search warrant listed one household trash can instead of two.” Not exactly the stuff to rile up a nation.

Partly for this reason — understanding how to reconcile her new life with what she used to do — Bravin’s story is an enlightening read.

As a substitute judge, O’Connor has heard nearly 80 cases and written more than a dozen opinions. Cases, writes Bravin, almost never plumb heady legal issues, but instead revolve around some quotidian facts. “Some fact-bound criminal case is not of special interest to me, I have to confess,” says O’Connor. Most of her caseload is “not particularly demanding, intellectually.”

Justice O’Connor’s latest opinion, a Fourth Circuit ruling decided July 30, begins this way: “This is a case about a wolf named Dutchess.”

The facts of the case are these: Although state law prohibits possession of wolves, a couple in Upper Marlboro, Md., had obtained a dog license under the inaccurate assertion that Dutchess was an Alaskan Malamute.

Months later, after an animal-control officer saw Dutchess and entered their property to impound her, the couple sued for trespass. Justice O’Connor rejected the couple’s claim. The officer had no duty to check if the wolf was lawfully owned before seizing it “to protect the public safety,” she wrote.

Few scholars think Justice O’Connor’s appellate opinions will make her greatest-hits list. “If you did a blind test, I doubt anyone could recognize these as opinions by Justice O’Connor,” says former O’Connor clerk Stuart Banner, a law professor at the University of California, Los Angeles.

But Justice O’Connor “likes to make decisions,” says former Arizona Chief Justice Ruth McGregor, another former O’Connor clerk. “Maybe she was born to do it.”

Perhaps, but she still says the circuit judging is hard: “They don’t waste any time,” she says, sometimes deciding questions immediately after the arguments. “I liked, here at the [Supreme] Court, to take time to reflect on what I heard and check my notes and put together thoughts,” she says.

Full post as published by Law Blog - WSJ.com on August 11, 2009 (boomark / email).