Sandra Day O’Connor is dead. One of the most overrated political/legal figures of the late twentieth century, O’Connor leaves a legacy just as bad as any other awful Republican of the time. Ignore her moderation on some issues. Remember her vote in Bush v. Gore and what that did to destroy our democracy.
Born in El Paso, Texas in 1930, Sandra Day grew up in rural Arizona. Her parents owned a large ranch way out by the New Mexico border. It was so rural that she went back to El Paso for schooling because there weren’t any schools near the ranch. This was some Old West living. Her remarkable intelligence got recognized from an early age. She graduated from high school at the age of 16 and went to Stanford University. She majored in economics, graduated with top honors, and then went to law school there. She started dating the editor of the Stanford Law Review, William Rehnquist. In fact, the future Chief Justice asked her to marry him, but she demurred. I am going to try to drive the thought of her and Rehnquist getting nasty behind the robes out of my mind, but mostly am failing to do so. Anyway, she married another law student named John Jay O’Connor, in 1952.
Now Sandra Day O’Connor, she was a highly skilled lawyer but faced the sexism of the day at law firms. She had no intention of giving up her career and raising kids, though she did have three of them. She finally got a job with San Mateo County in California and the family moved there. They moved to Germany for awhile after her husband got drafted and she got legal work with the government. Then they moved to Arizona.
It didn’t take O’Connor long back home to get to know Barry Goldwater and she liked him a lot. His far-right extremism appealed to her own far-right extremism. He became a political hero to her and she was a worker on his presidential campaign in 1964. It is worth remembering this when everyone calls her a moderate on the Court now that she has died. This was a very, very conservative woman. That the far right moved ever farther right over the years does not make O’Connor someone who was not far right for her time. She definitely was that.
As a close ally of Goldwater, who remained in the Senate, O’Connor was now a leading player in the Arizona Republican machine. She was a tough smart lawyer and, yes, a pioneering one as well. If we think it is great that the first person of a certain gender or race reaches that position because their politics are horrible, well, then I guess we can look at O’Connor as some kind of laudable figure. If we think that the politics of the person matter more, maybe not. But in any case, she was the first in a lot of things. She became Arizona’s assistant attorney general in 1965 and held that position for four years. Then, in 1969, she was appointed to fill a vacancy in the state Senate. She rose fast. She won election for a full term to the seat in 1970. In 1973, she became Senate Majority Leader. But she only stuck with that for one more term, realizing that she preferred the law. She decided not to run for reelection in 1974. Instead, she got onto the Maricopa County Superior Court in 1975. In 1979, she was appointed to the Arizona State Court of Appeals
In the modern context, being a state level judge would never get you on the Supreme Court. We’ve developed a political culture, and this goes for both Democrats and Republicans, that the only proper Supreme Court justices go to the most elite schools, probably clerk for other justices, and then rise through the appeals courts. I think this is tremendously damaging to our legal system and we’ve seen this as the current far-right court seems themselves as above any sort of democratic accountability, attempting to rule the nation back to its idealized version of 1950 (or maybe 1890 even) by itself. But Reagan had pledged to name the first woman to the Supreme Court in 1980 (good job in completely dropping the ball on this Carter) and the choices weren’t that deep in the traditional circles given the rampant misogyny at the heart of American life and the many opportunities denied women. So when Potter Stewart resigned after 24 years on the Court, O’Connor was the nominee.
So yes, O’Connor is the first woman to serve on the Supreme Court. That’s important as far as it goes, but far more important is how she ruled on the issues of the day. And she was pretty bad. She gets a lot of cover for another reason—the right to life people were furious with Reagan for nominating someone not overtly anti-abortion. This was a moment where the most right-wing Republican senators like Jesse Helms (R-Gollum’s Cave) and Steve Symms (R-ID) would complain about someone but would fall in line. And in fact, they did complain and then O’Connor was confirmed unanimously.
O’Connor’s positive reputation with liberals today rests primarily on the abortion cases. She deserves her share of credit here. Planned Parenthood v. Casey was a critical case that kept abortion legal for another three plus decades. This is fine—she ruled the right way. It was the same with Webster v. Reproductive Health Services, where in 1989, she did join with conservatives in saying is not necessary to protect the health of mothers, but issued a key clause that did not overturn Roe entirely, which the rest of the conservatives wanted. She absolutely deserves credit for this, however limited the decision actually was.
On a few others issues, yes, she was relatively moderate. She was the swing vote in McConnell (LOL) v. FEC that upheld the McCain-Feingold campaign finance bill. She also wrote the limited opinion in Hamdi v. Rumsfeld, the 2004 case that limited the government’s ability to detain U.S. citizens it considered to be terrorists, reinforcing the principle of due process. She could be good on school prayer and other enforced religious acts, such as in Santa Fe Independent School District v. Doe, the 2000 case that ruled against student-led prayer in high school football games.
But mostly she was a bad justice who voted for bad decisions. In Lockyer v. Andrade, she provided the key swing vote that upheld the awful California three strikes law in a case where a person shoplifted a few kids’ videotapes and received a 50-year sentence in state prison! Her position was that this was not cruel and unusual punishment. Did she need the person to be hanged from their wrists for five decades to get there or would that not do it either? In Zelman v. Simmons-Harris, she ruled that school vouchers for religious schools didn’t violate the First Amendment, a completely absurd decision. She would talk about the need for diversity but rule against affirmative action almost all the time. In U.S. v. Lopez in 1995, she ruled that the Gun-Free School Zones Act was unconstitutional and how many children have died in school shootings since? This was a huge blow to gun control at a moment when stronger gun control might have saved a lot of lives.
She also was just wildly inconsistent. This was not a justice who thought through a lot of cases very hard. On the other hand, it’s not unreasonable to argue that not every decision has to follow an iron ideological position and that context mattered. However, it’s also hard to get around the key point that while her ideological shiftiness could bring us to believe that she was moderate, she really was not. This was a white woman of the Arizona desert, a follower of Barry Goldwater and lover of William Rehnquist. She was of their world and she ruled as they believed.
One thing that saved her to a small extent by the early 90s—she despised Clarence Thomas. She thought he was basically a fascist and refused to join anything he was a part of, to the point of issuing different opinions when they did agree. In 1992, she refused to join a single one of Thomas’ dissents. We can look at this today and say that we wish she was still on the Court, but it’s important not to fail to the evils of nostalgia and instead evaluate her for how she was. Also, she still voted the same way on most cases. So who really cares if she wouldn’t join his dissents.
O’Connor’s reputation as a moderate, as we are seeing with the wave of nostalgia for the Reasonable Republican, completely falls apart over two issues. The first is Bush v. Gore. This opinion is an absolute travesty, perhaps the worst in the entire history of the Supreme Court. This was pure partisan hackery, demonstrating there was no difference between O’Connor and Scalia or Thomas. O’Connor—who was absolutely the swing vote in 2000 on an issue such as this—preferred the Republican candidate, she accepted the dubious Republican arguments to stop the recount of Florida’s votes.
In doing so, she signaled to the Republicans that so long as they controlled the Court, they could do whatever they wanted to fix elections. Nothing in the over two decades since has demonstrated to Republicans that they are wrong about this. Had O’Connor ruled in favor of Gore in 2000, she might be considered a traitor by Republicans, but she would be an absolute hero—not just to Democrats, but to those who believe in a stable democracy with lawful elections and a fair adjudication when they are disputed. Alas, she did not make this choice. And thus, the present instability of the United States is central to her legacy.
O’Connor made a choice to undermine democracy and she did so with her eyes open. Bush v. Gore is the real beginning of the decline of American democracy. Sure, the signs were already there, but it was that case when the conservative institutions of the nation decided to act in order to protect themselves no matter the cost. For her vote in Bush v. Gore alone, O’Connor should be remembered as leaving a terrible legacy to the United States.
The second terrible choice O’Connor made was in the timing of her retirement. It’s not as if there was some secret that George W. Bush was going to replace with someone significantly to her right. That Bush eventually chose Samuel Alito, arguably one of the worst Supreme Court justices in American history and unquestionably one of the most fascist, really does partly fall upon her. It is also worth noting here that O’Connor got a lot of positive publicity for stepping down to take care of her again husband, struggling with Alzheimer’s. But this is a bit of a feint.
First, O’Connor did not actually retire. She became Chancellor at the College of William and Mary, replacing Henry Kissinger of all damn people. Second, it’s entirely possible she worked harder at William and Mary than she did on the Court. Being on the Supreme Court is not actually all that hard of a job. You have an enormous support network doing the real work. You show up, ask a few questions, vote on the case, maybe you write an opinion but a lot of that is done by said support network. Now, I am not going to really blame someone for retiring. That’s her right. But she retired knowing that Bush would probably go far right with her replacement. She was fine with that because she was always pretty far right herself, at least in the context of the time.
In the aftermath of her retirement from the Court and then William and Mary, O’Connor mostly stayed out of the spotlight. The last years of her life saw her health decline as it does for so many of us.
In the end, O’Connor is not a monster. She’s not Sam Alito or Clarence Thomas or Antonin Scalia. But she is just as responsible as they are for the decline of American democracy. Bush v. Gore is unforgivable. Absolutely unforgivable. She allowed her preference for George W. Bush as president to get in the way with the functioning of American democracy. For that alone, she must be remembered as one of the people who brought the United States to its current state of democratic decline and political violence.