Cases often hinged on O’Connor’s vote
Justice moved to the middle as Supreme Court shifted farther right
When Sandra Day O’Connor came to the U.S. Supreme Court in 1981, she was a solid conservative, which is why President Ronald Reagan nominated her.
But back then, being conservative was not a political stance; it wasn’t a synonym for Republican. For most of her time there, the Supreme Court was made up almost entirely of Republican appointments.
Then, over the years, as the court shifted farther to the right with subsequent appointments, O’Connor ended up in the middle philosophically. And because she approached each case separately according to its unique facts, she was not predictable as a vote.
However, she did not like the term “swing vote.” “It suggests something that’s not thoughtful,” said Ruth McGregor, a former Arizona Supreme Court justice and a longtime friend to O’Connor. “I don’t think she minded being the deciding vote, but she didn’t like the frivolous sound of (swing vote).”
Charles Blanchard, a former Arizona legislator who is now an attorney based in Washington, D.C., said, “She wasn’t a blank check.”
Equality under the law, not advocacy
When O’Connor turned a majority vote, even on controversial subjects like abortion and affirmative action and gay rights, she likely based her decision on equality under the law, states’ rights and individual rights to privacy, rather than on advocacy and idealism.
“What really impressed me was that she seemed very committed to try to think through every case,” said Scott Bales, the chief justice of the Arizona Su
BIOGRAPHY OF AN AMERICAN LEGEND
“I don’t think she minded being the deciding vote, but she didn’t like the frivolous sound of (swing vote).” Ruth McGregor Former Arizona Supreme Court justice and a longtime friend to Sandra Day O’Connor
preme Court, who served as one of O’Connor’s law clerks in the 1980s.
“She was a trial court judge and a state legislator,” Blanchard said, and that shaped her decisions.
For example, an opinion she authored early into her tenure on the Supreme Court in 1982 dealt with a man who had been denied admission to an all-women’s nursing school in Mississippi. Not only was that unequal treatment under the law for the man, she wrote, but also “excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively women’s job.”
She had rejected the argument that the women-only policy fostered affirmative action, noting that there was no shortage of nursing school admissions for women.
“Her leanings at that time were largely that she was skeptical of affirmative action that gave preference to one race or another,” Blanchard said.
But on the other hand, “she had a deep belief in equality,” McGregor said.
Former Arizona state Sen. Alfredo Gutierrez recalled a time when she lobbied for a Navajo legislator who the state Senate tried to exclude from its body. And she was close friends with black justices on the court, including Thurgood Marshall and Clarence Thomas.
Still, she disliked tilting the advantage in either direction based on race.
“She was consistently seeking for the reason for the difference,” McGregor said. “She just didn’t have any time for such nonsense.”
The facts of the case guided her decisions, not a political stance, and she could not be expected to consistently vote with one bloc or another. In 2003, she was the deciding vote in a case upholding affirmative action at the University of Michigan Law School, writing, “It is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
Similarly, she carefully weighed questions under “the establishment clause” of the Constitution — the separation of church and state in battles over religious symbols in public places.
She also believed the court should not overturn long-standing precedents because it undermined the integrity of the court.
And so, while certain justices, like Antonin Scalia, frequently lobbied to overturn Roe v. Wade, the 1973 decision that decriminalized abortion, O’Connor consistently voted to let the central concept of the ruling stand. But she also upheld the various states’ rights to impose reasonable restrictions on access to abortion.
O’Connor had expressed her personal abhorrence of abortion, but she stood for a person’s right to make privacy decisions about his or her own body and didn’t feel the government should be dictating on those matters.
Similarly, O’Connor voted with the majority to strike down as unconstitutional the “Texas Sodomy Law,” which essentially criminalized same-sex sexual activity. Although she wrote in her concurring opinion that marriage should be limited to heterosexual couples “to preserve the traditional institution of marriage,” she did not feel law enforcement had the unrestricted right to enter someone’s home and walk down the hall to a bedroom to see what consenting adults were doing there, as happened in that case.
She was the deciding vote in Bush v. Gore in 2000, the case that gave the presidential election to George W. Bush. She voted with the majority in a 2004 case of a U.S. citizen arrested as a Taliban combatant in Afghanistan, ruling that Americans were entitled to due process even when they were detained overseas in wartime.
“We reaffirm today the fundamental nature of a citizen’s right to be free from involuntary confinement by his own government without due process of law, and we weigh the opposing governmental interests against the curtailment of liberty that such confinement entails,” she wrote.
That was her essence. Alfredo Gutierrez summed it up: “Her attitude, both in the Legislature and in person (and by extension, on the bench) was that what mattered in life and in our democracy was respecting peoples’ rights.”
A busy social schedule
As she was in Arizona, O’Connor was at the center of the Washington, D.C., social scene.
She and husband, John O’Connor, were “A-list” party guests and she frequently played tennis and golf.
She remained a public curiosity throughout her tenure in Washington.
At a black-tie gala in January 1985, drunken Washington Redskins running back John Riggins memorably told her, “Come on Sandy, baby, loosen up. You’re too tight.”
O’Connor and her husband left the dinner early. But she reportedly joked about the matter. She later attended Riggins’ theatrical debut years and sent him flowers.
John O’Connor frequently accompanied her to events. But he often was on the road with his law practice, spending about a third of every month away from Washington. Youngest son Jay O’Connor served as his mother’s date to many of the swanky social events she was invited to as the highest-ranking woman in Washington.
“I mean, I’m telling you, I only went to a fraction of things that she did and I was exhausted. My parents were very popular in Washington, both just very fun social people, and they got invited to absolutely everything,” Jay O’Connor said.
‘I’m a survivor’
Some floated her name for the vice presidential nomination in 1988 and 1996. For much of her time on the court, she was its wealthiest member.
She also had health issues that raised the specter of her departure from the bench. In 1988, she had an appendectomy. Later that year she was treated for breast cancer. In 1996, she also suffered a broken shoulder in a skiing accident.
“I’m a survivor,” O’Connor said when she discussed her bout with cancer publicly for the first time in a 1994 speech. Cancer initially left her weak and emotional, she said, but it also “fostered a desire in me to make each and every day a good day.”