The Sad Ending of Sandra Day O’Connor’s Judicial Legacy

Dahlia Lithwick and Mark Joseph Stern / Slate
The Sad Ending of Sandra Day O’Connor’s Judicial Legacy Former Justice Sandra Day O'Connor. (photo: T.J. Kirkpatrick/Getty Images)

Justice Sandra Day O’Connor died on Friday at the age of 93 due to complications from dementia and a respiratory illness. The first woman appointed to the Supreme Court, O’Connor had an immense impact on the law over her 24 years on the nation’s highest bench. Her pragmatic jurisprudence often kept the court aligned with public opinion, especially on controversial issues like abortion, affirmative action, and the line separating church and state. Today, her legacy is in shambles. She watched as her replacement, Justice Samuel Alito, methodically dismantled her imprint on one area of the law after another. And the conservative justices who succeeded O’Connor have flatly rejected her practical, compromise-oriented approach, almost always replacing it with rigid doctrines of dogmatic formalism that consistently lead to far-right extremes and unworkable ideas.

O’Connor grew up on a cattle ranch in Arizona, a far cry from the ultraprivileged upbringing of more recent Republican-appointed justices. She attended Stanford University at age 16, then went on to Stanford Law School, where she excelled despite widespread sexism. When she couldn’t land a legal job despite graduating near the top of her law school class, she hung out a shingle and worked on small cases. O’Connor took time off to care for her sons while always keeping a foot in local law and politics. Her rise to power began in 1969 when Arizona Gov. Jack Williams appointed her to a Senate vacancy. A Republican, O’Connor established herself as a moderate deal-maker and rose through the ranks to Senate majority leader, becoming the first woman to hold that position in any state. She was appointed to a superior court in 1974 and elevated to the state court of appeals in 1979. Although this was an intermediate court and she was a middle-of-the-road jurist, this promotion made her a top candidate for the Supreme Court after Ronald Reagan pledged to appoint the first woman to the bench during his 1980 campaign. Sure enough, in 1981, Reagan elevated O’Connor to the Supreme Court. Her confirmation hearings suggested she was a centrist conservative; her installation at the court established her as a rock star.

O’Connor began her service as the kind of conservative Reagan had expected, with some exceptions: An early opinion, for instance, vehemently reaffirmed the Constitution’s bar on gender discrimination, in language that suggested a keen awareness of ongoing sexism in America. At the same time, she indicated an early willingness to reexamine and perhaps overturn Roe v. Wade, and she cast the decisive vote in a notorious decision that upheld “sodomy” bans. Her views on states’ rights, capital punishment, campaign finance laws, and other hot-button issues also adhered to the usual right-wing viewpoint. Yet by the late 1980s, O’Connor had begun to break away from the conservative flank of the court—in part because the hardline, pugnacious style of Justice Antonin Scalia, appointed in 1986, alienated and repelled her, especially when he insulted her in private memos and printed opinions.

In the 1990s, O’Connor drifted even further away from Scalia and his allies, often to their vocal disapproval and contempt, eventually becoming the court’s swing vote, securing for herself the role, for a time, as the most powerful jurist in America. O’Connor authored or joined a series of opinions that preserved the separation of church and state, safeguarded Fourth Amendment rights against unreasonable searches, and enforced due process guarantees for criminal defendants. Most notably, O’Connor helped craft the court’s famed compromise in Planned Parenthood v. Casey, a 1992 case that at first seemed destined to overrule Roe v. Wade. O’Connor used Casey to establish the “undue burden” test, which gave states the leeway to restrict abortion without allowing them to ban it outright. The Republican Party viewed Casey as the ultimate betrayal and recommitted itself to overturning the constitutional right to abortion, a crusade that would pay off 30 years later after President Donald Trump moved the court even further to the right with three appointments.

By the 2000s, O’Connor had grown into a truly independent jurist—with one glaring, tragic exception that would fatally undermine her impact on the law: After the contested 2000 election, she voted with her fellow conservatives to halt the Florida recount and award the election to George W. Bush. Ironically, in the years after Bush v. Gore, O’Connor pushed the court in an increasingly liberal direction: She wrote the landmark opinion approving affirmative action in higher education, co-authored the opinion upholding the McCain-Feingold campaign finance law, and shifted her position on LGBTQ equality, voting to strike down anti-gay sodomy bans while affirming equal protection rights for same-sex couples.

Critics often derided O’Connor for what seemed to be a small-bore, mincing, and case-by-case approach to constitutional doctrine. She didn’t much care. Because what O’Connor managed to reflect, over her quarter century on the court, was a keen eye for what the moderate center of the country believed. Perhaps because she was the last sitting justice who had ever run for elected office, O’Connor cared what the public wanted and hated and she almost unfailingly represented that view in her decisions.

In 2005, O’Connor chose to step down so she could care for her husband, who had Alzheimer’s disease. She did so at the peak of her power and influence, in part because the chief justice, William Rehnquist, insisted that she retire so that he could stay on the court another year. He died shortly thereafter. Her premature retirement allowed Bush—the president she installed in 2000—to replace her with Samuel Alito, a substitution that registered as a rebuke to everything O’Connor stood for. As a lower court judge, Alito had insisted that Pennsylvania’s law requiring women to notify their spouses before terminating a pregnancy complied with the Constitution. It was this provision that O’Connor struck down in Casey, explaining that it would render women vulnerable to physical and psychological abuse at the hands of their husbands. Alito finally overturned Casey, along with Roe, in 2022’s Dobbs decision, and cast key votes overruling other landmark decisions by O’Connor. After Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined the court, no aspect of O’Connor’s jurisprudence was safe. In decision after decision, the court has pared back or overruled her opinions on affirmative action, campaign finance reform, separation of church and state, and other topics where she deviated from the conservative orthodoxy.

O’Connor famously had a cushion in her chambers that featured the saying “Maybe in error but never in doubt.” As the first woman to sit on the high court after nearly 200 years of male domination, she was forced to project certainty even as she suffered the indignity of being called a token and a campaign promise. She navigated that by being an extraordinary “first.” And her jurisprudence reflected a lifelong solicitude for the outsiders and the underrepresented because she knew what it was like to be invisible. O’Connor often said that a wise old man and a wise old woman would come to the same result; she loathed the idea that her gender shaped her jurisprudence. But she was a wise old woman, even when she was very young; in no small part because she understood that she didn’t know everything, had to pretend that she did, and yet was eternally open to learning and adapting and changing her mind. The court would be far better off today if her successors exercised even a fraction of the modesty, restraint, and capacity for course-correction that defined her service to the country.

EXPLORE THE DISQUS SETTINGS: Up at the top right of the comments section your name appears in red with a black down arrow that opens to a menu. Explore the options especially under Your Profile and Edit Settings. On the Edit Settings page note the selections on the left side that allow you to control email and other notifications. Under Profile you can select a picture or other graphic for your account, whatever you like. COMMENT MODERATION: RSN is not blocking your comments, but Disqus might be. If you have problems use our CONTACT PAGE and let us know. You can also Flag comments that are seriously problematic.

rsn / send to friend

form code