Judge O’Connor’s judicial legacy was undermined by the Court’s rightward shift

WASHINGTON — Judge Sandra Day O’Connor, who died Friday at the age of 93, was the kind of figure once known in American political and judicial life: a moderate Republican willing to seek compromise and common ground.

That led her to vote to uphold abortion rights, affirmative action and campaign finance rules. Since she retired in 2006 and was replaced by the much more conservative Justice Samuel A. Alito Jr., the Supreme Court has dismantled large parts of her legacy.

Nowhere is this clearer than with the right to abortion.

Judge O’Connor joined in the reviewing opinion Planned Parenthood v. Casey, the 1992 decision that, to the surprise of many, reaffirmed the core constitutional right to abortion established in 1973 in Roe v. Wade.

Roe “under fire for lack of the most compelling reason to reexamine a watershed decision,” she wrote in a joint opinion with Justices Anthony M. Kennedy and David H. Souter, “would undermine the court’s legitimacy above undermine all serious circumstances. ask.”

Last year, the court overruled Roe, overruling Judge O’Connor’s concerns about precedent and the court’s public standing. According to his majority opinion in Dobbs v. Jackson Women’s Health OrganizationJustice Alito wrote that Roe and Casey had “sparked debate and deepened division.”

Judge O’Connor also wrote the majority opinion Grutter vs. Bollinger, a 2003 decision supporting race-conscious admissions decisions at public universities, suggesting that they would no longer be necessary in a quarter century. In the elimination of positive action programs in higher education, the Supreme Court missed its deadline by five years in June.

Chief Justice John G. Roberts Jr., writing for the majority, said the timeline was unrealistic and unprincipled.

“However, the 25th anniversary expressed in Grutter only reflected the court’s view that race-based preferences would not be necessary to ensure the required level of racial diversity on college campuses by 2028,” he wrote. “That expectation was overestimated.”

Judge O’Connor also authored an important opinion on campaign finance, McConnell v. Federal Election Commission in 2003. A few years after Justice Alito replaced her, the Supreme Court in 2010 rejected a central part of that decision by a 5-4 vote. the Citizens United case.

A few days later, at a law school conference, Judge O’Connor reflected on the development.

“Gosh,” she said, “I’m stepping away for a few years and I don’t know what’s going to happen.”

President Ronald Reagan nominated Judge O’Connor in 1981, fulfilling his campaign promise to appoint the first female Supreme Court justice. At the time, she was a judge on a state appeals court, not the typical launching pad for the Supreme Court in the modern era, while it was dominated by former federal appeals court judges.

But her origin story was a reflection of her strengths and drew on a range of experiences largely missing among current judges. Raised and educated in the West, she served in all three branches of Arizona government, including as government attorney, Senate majority leader and as a judge.

Her background informed her decisions, which were sensitive to states’ rights and often depended on the judgments of the other branches of the federal government. Her statements could be pragmatic and narrow-minded, and her critics said she was engaging in split-the-difference jurisprudence.

But some of her commitments were unyielding, said Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court. “As many times as Justice O’Connor and I have disagreed, because she is really an Arizona Republican, we have been together on all cases of gender discrimination,” Justice Ginsburg, who died in 2020, told USA Today in 2009.

What is indisputable is that she was exceptionally powerful. She held the crucial voice in many of the court’s most polarizing cases, and her vision shaped American life during her quarter century at court. Political scientists were in awe of the power she wielded.

“By virtually all conceptual and empirical definitions, O’Connor is the center of the court—the median, the key, the critical, and the swing Justice,” wrote Andrew D. Martin, Kevin M. Quinn, and Lee Epstein and two colleagues in A study published in 2005 in The North Carolina Law Review, shortly before Judge O’Connor’s retirement.

In 2018, in a letter announcing her retirement from public life as she battled dementia, Judge O’Connor called for a renewed commitment to nonpartisan values, one that would require “putting country and the public good above party and self-interest are made, and our key government institutions are responsible.”

At the time, Chief Justice Roberts, who had joined the court just months before Justice O’Connor left it, described its place in history.

“She has broken down barriers for women in the legal profession for the betterment of that profession and the country as a whole,” he wrote. “She serves as a role model not only for girls and women, but for everyone committed to equal justice under the law.”

On Monday, the chief justice added: “We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law and an eloquent advocate for citizenship education. And we celebrate her lasting legacy as a true public servant and patriot.”

That legacy is striking and real. But in the less than two decades since Judge O’Connor’s retirement, a central aspect of that legacy – its jurisprudence – has proven fragile.