Supreme Court’s 1st woman built centrist consensus
Retired Supreme Court Justice Sandra Day O’Connor, the first woman to ascend to the high court and its most influential jurist for much of her 24-year career, has died.
O’Connor announced in 2018 that she had been diagnosed with the early stages of dementia. She died Friday morning in Phoenix, the court announced. She was 93.
Until her retirement in 2006, O’Connor was often described as the most powerful woman in America as well as one of its most admired public officials.
She was a centrist on an ideologically divided court, and she used her position to steer a middle course on the controversial issues of her time, including affirmative action, abortion, religion and the death penalty.
The daughter of an Arizona cattle rancher, she made history the day she arrived at the Supreme Court in 1981.
Until then, the justices had been known as “the brethren,” the nine men who had the final word on the meaning of the U.S. Constitution.
President Ronald Reagan had made a campaign promise in 1980 to appoint a woman to the Supreme Court when the first vacancy arose. And the opportunity came sooner than Reagan might have guessed. Just four months after Reagan took office, Justice Potter Stewart passed on the word he planned to retire at the end of June.
In his place, Reagan chose a little-known Arizona state judge who had been championed by Sen. Barry Goldwater, the conservative stalwart whose 1964 campaign for president had brought Reagan into national politics.
O’Connor was then a 51-year-old mother of three who had graduated near the top of her Stanford Law School class.
Her instincts were those of a legislator, a job she held before becoming a judge. She was appointed to the Arizona state Senate in 1969 and won reelection twice as a Republican. In 1973, she was elected as the majority leader, the first woman to head a state legislative body.
Her views on the great legal issues of the day were unknown, although she assured Reagan she found abortion personally “abhorrent.” She won a
quick confirmation from the Senate.
But within a few years of her arrival, O’Connor moved into position as the most decisive justice. She was frequently described as the “swing vote,” the justice who could tip the outcome in favor of either the conservative or the liberal faction. Her role went well beyond that, however.
After joining the high court in 1981, O’Connor used her skills honed as a legislator to focus on the narrow points that divided the two sides and seek a middle position. On the most divisive issues, O’Connor usually found a way to set out a ruling – sometimes by deciding only a narrow issue – that would win the support of a five-member majority.
A classic example came in 2003 when college affirmative action plans were under attack in the court. Over the previous
20 years, O’Connor had joined her more conservative colleagues in criticizing government policies that gave benefits or contracts to people based on their race.
Affirmative-action policies in higher education looked to be doomed when the court took up a conservative group’s challenge to the admission policies at the University of Michigan and its law school. However, O’Connor was not ready to outlaw such policies entirely.
She partly agreed with both sides. On the one hand, she joined the conservative bloc to strike down Michigan’s undergraduate admissions policy because it awarded 20 extra points to all minority applicants. That was too rigid and too extreme, she said.
But she also spoke for a 5-4 majority that upheld Michigan’s law school policy because it avoided rigid formulas while giving an edge to promising minority students. “In a society like our own … race unfortunately still matters,” O’Connor said. For support, she cited the views of military leaders who said it was crucial to permit affirmative action at the nation’s military academies, including West Point and Annapolis.
O’Connor came to a similar decision on abortion. She criticized the Roe vs. Wade ruling as rigid and extreme, and she voted to uphold a series of state restrictions in her first decade on the court. But when given a chance to overturn Roe vs. Wade entirely, O’Connor refused. In 1992, she played a key role in a 5-4 ruling that upheld the core right of adult women to choose abortion until the final three months of a pregnancy.
On religion, O’Connor supported church groups that were seeking greater access to schools and public funding, but she also said the government itself may not “endorse” a religion. Her opinions drew a fine line between what school officials could and could not do. In 1990, she spoke for the court in upholding the rights of high school students to meet for Bible study or prayer on campus.
However, she also joined a majority rule that barred school principals from inviting clerics or student leaders to deliver prayers at school events. “There is a crucial difference between government speech endorsing religion, which the Establishment Clause (of the 1st Amendment) forbids, and private speech endorsing religion, which the Free Speech and Free Exercises Clauses protect,” O’Connor wrote.
However, when the presidential election race appeared deadlocked in 2000, O’Connor did not seek a way to bridge the gap. Instead, she joined a five-member conservative majority to halt Florida’s statewide recount of the untabulated paper ballots. The ruling, on Dec. 12, 2000, cleared the way for Texas Gov. George W. Bush, a Republican, to claim the presidency over Democratic Vice President Al Gore.
But O’Connor was no ally of the Bush White House. In 2004, she wrote an opinion that gave prisoners in the war on terror a right to challenge their detention. “A state of war is not a blank check for the president,” she declared.
As a justice, she was less interested in legal theories than in the practical consequences of a ruling. She sometimes derided “academics” who insisted the court’s rulings should follow predictable patterns. O’Connor focused on the impact of each decision, and she attributed her pragmatism to her childhood on the ranch.
“I treasure my link with the arid Southwest,” O’Connor said in Lubbock, Texas, not long after her retirement. “The solutions we reached on the ranch had to be practical. They didn’t have to be beautiful. They had to work. Maybe, just maybe, that’s a little bit of what I brought to the court.”