Former Supreme Court Justice Sandra Day O'Connor passed away on Dec. 1 at the age of 93, and her death has produced the predictable retrospectives following the death of a once-high official. O'Connor was, of course, the first woman appointed to the Supreme Court, by President Ronald Reagan, over the objections of those on both the right and the left. (Many conservatives were unhappy that she was not, for example, a doctrinaire anti-abortion activist, while Democrats saw her appointment as the fulfillment of a cynical campaign pledge by then-candidate Reagan to strengthen his support among women.)
Reagan himself lauded O'Connor, a lifelong Republican, as "truly a woman for all seasons." Some commentators have noted that she was the last Court appointee with political experience (during her six years in the Arizona State Legislature, she rose to the role of Majority Leader of the State Senate – another "first" for a woman). Later, she served as both a state trial judge and, for four years, on Arizona's intermediate appeals court. It was a testimony to her bridge-building and willingness to work across-the-aisle that she was appointed to the appellate court by Gov. Bruce Babbitt, a Democrat.
Like O'Connor, Supreme Court justices once came frequently out of both the state courts and the world of politics. Both Justices Oliver Wendell Holmes and William Brennan, two of the most respected justices during the twentieth century, had served only on their own states' courts before their respective Supreme Court appointments. President Franklin Roosevelt's first appointment to the Court was former Sen. Hugo Black, and he later appointed his Attorney General, Robert Jackson. Likewise, Harry Truman appointed his Secretary of the Treasury, Fred Vinson (one of Truman's favorite poker-playing cronies) to be Chief Justice.
But no candidate with experience in elective political office has been appointed since O'Connor in 1981. For the most part, she steered a middle course as a Supreme Court justice, voting to continue (although narrowing) the right to an abortion; to find that affirmative action in college admissions was constitutional; and to uphold limits on campaign finance contributions.
But her political instincts remained part of who she was, and she followed them in making what was arguably the most consequential decision of her Supreme Court tenure: the 5-4 ruling in Bush v. Gore which, by stopping the vote count in Florida, effectively awarded George W. Bush the presidency in 2000. It took a while longer, but eventually her vote in that one case unwrapped much of O'Connor's work as a justice.
In 2005, O'Connor had expected that Chief Justice William Rehnquist, who had been suffering with thyroid cancer, would retire at the end of the court's 2004-05 term. But Rehnquist knew that she also wanted to retire to care for her husband, who suffered from dementia. He told her that he wanted to stay on for one more year, and suggested that both of them should not retire at the same time.
So, in deference to Rehnquist, O'Connor announced her retirement in July, 2005, effective upon the confirmation of her successor. But then Rehnquist died suddenly just two months later. O'Connor waited while Rehnquist's successor, John Roberts, was vetted by Congress first. Eventually, Roberts was confirmed and then Pres. Bush – whom she had helped put in office – appointed her own successor, Samuel Alito.
And unlike O'Connor's cautious, case-by-case jurisprudence (which made her the most unpredictable vote on the court), Alito proved to be a doctrinaire, knee-jerk conservative. He would ultimately write the 2022 decision in Dobbs v. Jackson Women's Health putting an end to a federal right to an abortion, overturning O'Connor's careful balancing act on the subject during her years on the Court. Alito likewise voted to open the floodgates to campaign contributions in Citizen's United v. FEC – indeed, when Pres. Obama criticized the decision at the 2010 State of the Union speech, it was Alito who was caught mouthing, "Not true" on the floor of the House chamber. And he and Roberts were part of the six-vote majority that just this year abolished affirmative action in college admissions – something that O'Connor had helped to preserve in 2003 during her last years on the court.
O'Connor herself would have denied that she was bothered by the Court's sharp rightward turn despite having provided the decisive vote to install the president whose appointments began the undoing of most of her work as a justice. But it's just as likely that, in quiet moments while alone with her conscience, she regretted planting the seeds that led to the destruction of her own legacy on the Court.
Frank Zotter, Jr. is a Ukiah attorney.
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