Former Justice Sandra Day O’Connor, who died Dec. 1 at 93, after a long battle with dementia, will lie in repose at the Supreme Court next week, a fitting tribute to the import and impact of the first woman appointed to the high court.
The Biden-Harris White House also issued “A Proclamation on the Death of Sandra Day O’Connor.”
Despite being appointed by Ronald Reagan, who assumed O’Connor would be a reliable conservative vote on the court, O’Connor shifted position on many issues. Over the years of her tenure on the SCOTUS, from 1981 to 2006, she went from a staunchly unwavering conservative to a frequent swing vote on myriad social issues, among them abortion, affirmative action, LGBTQ+ rights, voting rights and the rights of the accused.
Speaking in Philadelphia at the opening of the Constitution Center in 2003 at which she received the prestigious Liberty Medal, O’Connor said, “Knowledge about the ideas embodied in the Constitution and the ways in which it shapes our lives is not passed down from generation to generation through the gene pool — it must be learned anew by each generation.”
O’Connor said, “It’s not enough simply to read or memorize the Constitution. Rather, we should try to understand the ideas that gave it life and that give it strength still today.”
That had been the rubric under which O’Connor had operated on the SCOTUS, focusing more on the spirit of that document than the so-called “originalist” stance that some of her fellow justices held. Many view Reagan as the architect of the modern “culture wars,” yet his first female appointee was not rigid in her conservativism. And while many argue that her rulings weren’t as groundbreaking nor she as dominant a jurist as some of the justices with whom she sat on the court, notably Harry Blackmun and Anthony Kennedy, O’Connor’s decisions often made a historic difference in the outcomes of particularly dicey legal and social issues.
Dahlia Lithwick, author of “Lady Justice: Women, the Law and the Battle to Save America,” and a frequent contributor on MSNBC told PGN, “Justice O’Connor was a paradox in so many ways, not least of which was her sense that courts and judges could and should decide cases in ways that made life better, more hopeful, more humane.”
That was certainly evidenced in her rulings on abortion and LGBTQ+ issues.
Lithwick, who has been writing about the SCOTUS for years, said O’Connor “was exquisitely practical but also an optimist; believing that the arc of the moral universe could get us all to a nobler place. Yet despite that ambition for the law and the rule of law, she was always aware of the role of the court in public life and believed deeply in the stability of precedent for the country and in the humility needed to understand how much any one judge did not understand.”
Lithwick added that O’Connor, “lived in that tension her whole life, having seen herself that courts can do so much to help women and vulnerable minorities but that they can also do harm.”
O’Connor seemed to focus on avoiding harm. The 1992 ruling in Planned Parenthood v. Casey, which she co-authored, was a landmark decision in which the Court upheld the right to have an abortion as established by the “essential holding” of Roe v. Wade (1973) and issued as its “key judgment” the restoration of the undue burden standard when evaluating state-imposed restrictions on that right. (Both the essential holding of Roe and the key judgment of Casey were overturned by the Supreme Court in 2022, with its landmark decision in Dobbs v. Jackson Women’s Health Organization.)
O’Connor stated at the time and later that the court could not eliminate the right to abortion because, she said, “an entire generation has come of age” relying on it.
O’Connor’s vote won the case which expanded access to abortion by rejecting Roe’s “rigid trimester framework,” asserting that states could not impose an “undue burden” on individuals who, prior to viability of the fetus, sought to have an abortion.
In the lesser-known 2000 case of Stenberg v. Carhart, O’Connor was again the swing vote in the case vitiating a late trimester abortion law that disallowed for the life of the mother and also criminalized abortion providers. O’Connor co-authored the case, which pivoted off Casey.
O’Connor changed course during her tenure on significant issues. In 1986, she voted with the majority in the landmark sodomy case, Bowers v. Hardwick. But in another landmark case — the 2003 Lawrence v. Texas, in which Justice Kennedy argued the court had gotten Hardwick wrong — O’Connor wrote a concurrence, voting with the majority to overturn the sodomy laws that had penalized gay and lesbian Americans for generations and which had also been used repeatedly in child custody cases to deny lesbians access to their children.
In 2000, O’Connor wrote the opinion in a parental guidance case, Troxel v. Granville, that was lauded by the ACLU as a victory for “non-traditional parents,” like same-sex couples noting “lesbian and gay parents frequently face inappropriate interference by courts and third parties (such as relatives) because of anti-gay bias.”
The ACLU lists a couple dozen cases in which O’Connor’s vote was decisive and changed the law — some surprising. O’Connor wrote the dissenting opinion in Atwater v. Lago Vista, in which O’Connor said, “as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may often serve as an excuse for stopping and harassing an individual.”
O’Connor often said that the weight of being the first female justice meant that if she got it wrong, she could very well be the last. But she also said, “The power I exert on the court depends on the power of my arguments, not on my gender.”
What became clear over her decades on the court was that her gender informed her knowledge of the world and was a prism through which she viewed the law — often setting her ideological leanings aside, as she did with abortion cases, and looking at what the plurality of women needed from the law. Today there are four female justices on the court and no one born after 1981 has known an all-male SCOTUS. Justice Elena Kagan said O’Connor cast her often-decisive vote “in a way that demonstrated extraordinary wisdom that understood something about this nation, about the people who inhabit it, what they would and would not stand for, about what their best values were, and she did this over and over again. And really we are such a better nation because of that.”