Last Friday, retired Justice Sandra Day O’Connor died at the age of 93. Justice O’Connor was the first woman to sit on the nation’s highest court, nominated and appointed in 1981 by President Ronald Reagan . She served on the court until January 2006, when she was replaced by Justice Samuel Alito .
O’Connor will always have an elevated reputation through her breaking the gender barrier to the Supreme Court . All subsequent women on that court — Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson — stand on her shoulders.
KEVIN MCCARTHY LEAVING CONGRESS AT END OF YEAR: 'LEAVING THE HOUSE BUT NOT THE FIGHT'
We also must judge her based on her judicial career. Did she commend herself to history in the votes she cast and the opinions she composed? Justice O’Connor’s judicial tenure presented at best a mixed bag on this front, especially for political conservatives and judicial adherents to originalism or textualism.
First, let us commend the good. She provided key votes to restore some judicial protection for state power. These votes included upholding state sovereign immunity against prosecution, for example.
During her tenure, the court also began to enforce limits on the portion of the Commerce Clause allowing Congress to regulate interstate economic activities. The Supreme Court had permitted Congress to stretch this clause to the point that no limit seemed to remain. In cases such as United States v. Lopez (1995) and United States v. Morrison (2000), O’Connor helped to reestablish some judicial lines.
Nowhere did O’Connor shine brighter, though, than her dissent in Kelo v. City of New London (2005). It also was the last opinion she gave before announcing her retirement in June 2005. There, she stood up for property rights of homeowners who had the power of private corporations and governmental entities arrayed against them. She did so by railing against a reading of the Fifth Amendment’s takings clause that risked eliminating any useful limits on the government’s power to take away private property through eminent domain.
Second, we must not ignore where Justice O’Connor got things wrong. Though showing early positive signs in her tenure, she ended up casting a deciding vote to uphold Roe v. Wade, co-authoring the opinion in Planned Parenthood v. Casey (1992). Along similar lines, she rejected efforts at the beginning of this century to limit even the most brutal forms of abortion in striking down Nebraska’s “partial-birth abortion” ban in a 2000 case.
Rather than adhere to the intentions behind the 14th Amendment, O’Connor indulged in a reading of the Constitution that gave the court too much power and left the most defenseless in our society without proper legal protections. Her articulation of the “undue burden” standard for limiting abortion regulation proved as unworkable in practice as it was ungrounded in the Constitution.
In addition to abortion, her early hopeful votes on affirmative action eventually gave way to her authoring an opinion saving such programs in Grutter v. Bollinger (2003). In that opinion, she focused too much on social statistics and too little on the text and history of the equal protection clause. Rather than uphold the colorblind Constitution cemented by the 13th, 14th, and 15th amendments, she voted according to a judicial philosophy more aligned with contemporary views of social justice.
Interestingly, she lived to see both of these flawed judicial positions get overturned. Just last year, the Supreme Court emphatically rejected her abortion jurisprudence in scuttling both Roe v. Wade and Planned Parenthood v. Casey. States now can regulate to protect the unborn to the degree they think is right. And just this past summer, a clear majority of the current justices essentially overruled Grutter. They turned to enforcing the colorblind Constitution O’Connor had refused to endorse.
Thus, we should celebrate Justice O’Connor for her position as the first female justice. We should praise her for the good opinions she wrote and the votes she cast on matters of federalism (among others). But we also must show her the respect of critique. She was flawed in a number of crucial cases during her long tenure, which the court today has finally taken real steps to remedy. It is a legacy from which all should learn, both in its wrongs and in its rights.
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Adam Carrington is an associate professor of politics at Hillsdale College.
Justice O’Connor’s conflicted judicial legacy
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07.12.2023
Last Friday, retired Justice Sandra Day O’Connor died at the age of 93. Justice O’Connor was the first woman to sit on the nation’s highest court, nominated and appointed in 1981 by President Ronald Reagan . She served on the court until January 2006, when she was replaced by Justice Samuel Alito .
O’Connor will always have an elevated reputation through her breaking the gender barrier to the Supreme Court . All subsequent women on that court — Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson — stand on her shoulders.
KEVIN MCCARTHY LEAVING CONGRESS AT END OF YEAR: 'LEAVING THE HOUSE BUT NOT THE FIGHT'
We also must judge her based on her judicial career. Did she commend herself to history in the votes she cast and the opinions she composed? Justice O’Connor’s judicial tenure presented at best a mixed bag on this front, especially for political conservatives and judicial adherents to originalism or textualism.
First, let us commend the good. She provided key votes to restore some judicial protection for state power. These votes........
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