The Difference That Sandra Day O’Connor Made

By admin Dec4,2023

Sandra Day O’Connor, the Supreme Court Justice who over and over again provided the deciding vote on divisive constitutional matters, did not like the term often applied to her: “swing voter.” It sounded irresolute, and O’Connor, who grew up on a vast cattle ranch in Arizona and pushed past enough routine sexism in her career to choke a horse (in the early nineteen-fifties, one top firm explained that it couldn’t possibly hire her as a lawyer, but maybe as a legal secretary), was nothing if not resolute. In a 2013 NPR interview, O’Connor, who died on Friday at the age of ninety-three, told Terry Gross, “I don’t think any Justice—and I hope I was not one—would swing back and forth and just try to make decisions not based on legal principles but on where you thought the direction should go, and so I never liked that term.”

Still, unlike the Republican appointees on the Court today, O’Connor never marched under the originalist banner, nor that of any other legal or political philosophy. She was a compromiser—resolutely so. She was the last Justice to have held elected political office before joining the Court, and that experience showed. Before Ronald Reagan appointed O’Connor to the Court, in 1981, she had been active in Republican politics and served in the Arizona State Senate, where she quickly rose to majority leader. She had a keen feeling for the real-world impact of the Court’s decisions, and a natural politician’s sociability and savvy. James Todd, a former political-science professor at the University of Arizona and a good friend of O’Connor’s (they first bonded over a shared love of bird-watching), told me, “She knew how to deal with people and how to compromise and get things done. As majority leader, she’d have senators over to her house, and she’d cook for them—and they’d have to talk to each other.” On the Court, she prodded the other Justices to sit down to lunch together during oral-argument days.

In a dual biography of O’Connor and Ruth Bader Ginsburg, “Sisters in Law,” the late legal historian Linda Hirshman explained O’Connor’s M.O. this way: “The clear center of the more conservative Court, she wielded her position like a seasoned politician. She cast ambiguous votes at conference or professed herself undecided until she saw the draft of the assigned author and then she dragged her feet about signing on to drafts that were circulating, all techniques designed to draw the authors of assigned opinions to her in order to ensure her support.” In her concurrences, Hirshman wrote, O’Connor often made “conservative rulings more liberal and liberal opinions more conservative, usually by tying the outcome to the particular facts in the case.”

If O’Connor was any kind of “-ist,” it was a “consequentialist,” Todd told me. Her pragmatic approach reminded him of a quote from the Supreme Court Justice Benjamin Cardozo: “There can be no wisdom in the choice of a path unless we know where it will lead.” She cared about how decisions would play out in the world, and how they would affect public perceptions of the Court and its legitimacy. Precedent mattered to her, as did the expectations that accreted around Court rulings. For those reasons, she did not set about to dismantle rights that she might not have established in the first place.

Nowhere was this approach clearer than in her abortion jurisprudence. Abortion, she told Reagan when she met with him, was “abhorrent” to her. But she co-authored (with Anthony Kennedy and David Souter) the important 5–4 opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, from 1992, reaffirming the constitutional right to an abortion that had been established by Roe v. Wade nearly twenty years earlier. “Liberty finds no refuge in a jurisprudence of doubt,” the opening line of the Casey opinion read. The Justices wrote that “it is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood . . . as well as bodily integrity.”

Casey also set out a new balancing test, often credited to O’Connor. States were free to impose limitations on abortion as long as they did not amount to an “undue burden” on a woman seeking to terminate her pregnancy. The undue-burden test has been criticized for its vagueness and for allowing states to steadily chip away at abortion access in the decades between Casey and the 2022 Dobbs opinion, which eliminated the constitutional right to abortion. Of the specific Pennsylvania regulations that the Court was considering in Casey—including mandated waiting periods and counselling, parental permission for minors in most cases, and a requirement that a woman inform her husband of her planned abortion—the majority opinion held that all but one, spousal notification, would pass muster under the undue-burden test. In retrospect, this was a pinched view of things—waiting periods, for example, constitute very real obstacles for people who must take time off from work, find child care, or travel to other states to obtain abortions. Some critics of the opinion argued that the rejection of the spousal-notification provision, but not the others, reflected O’Connor’s experience as a married career woman; she got why asking your husband’s permission might be an oppressive burden but not why the logistical challenges faced by many poor women might be.

It’s true that, under the undue-burden standard, many states set real, and often shame-inducing, obstacles in the path of people needing abortions. It’s also true that, because of Casey, the United States retained a constitutional right to abortion for another thirty years, allowing many, many people with unwanted pregnancies to exercise free will over their futures. And, as Mary Ziegler, a law professor at U.C. Davis and an expert on abortion law, told me, Casey “was a decision that tried to cool down the temperature of the abortion debate and to take the pulse of regular people.” It may have left both sides unhappy, with its dual assertions that abortion, at least before fetal viability, was a fundamental right but also a morally fraught decision, in which a state could assert an interest later in pregnancy. But it “was a compromise, a workable compromise,” Ziegler said, that captured where many Americans were at the time.

Moreover, the opinion’s evocation of the circumstances in which a woman might not want to tell her husband extended beyond O’Connor’s own story of a long and happy marriage into an honest discussion of domestic violence. “In well-functioning marriages,” the Justices wrote, “spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion.” A feminist critique of Roe, one that Ginsburg shared, was that it had eschewed arguments based on women’s equality, grounding a right to abortion in privacy claims instead. But the Casey opinion, Ziegler said, came very close to that sex-equality argument—“and this was before Ginsburg was on the Court.” According to Ziegler, Casey channelled “that kind of logic—that, for example, we don’t live in a world where husbands speak for wives anymore.”

By admin

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