Sandra Day O'Connor, RIP

She was the first woman Supreme Court justice, and played a key role in changing the Court's jurisprudence for the better on several issues.

Justice Sandra Day O'Connor

 

Retired Supreme Court Justice Sandra Day O'Connor passed away today at the age of 93. O'Connor is best known for being the first female Supreme Court justice and for her role as a moderate swing voter on the Court, on such issues as abortion and affirmative action. But she also played a key role in strengthening judicial protection for federalism and property rights.

O'Connor was appointed to the Court in 1981, as a result of President Ronald Reagan's 1980 campaign promise to select a female justice. Her elevation broke a centuries-old glass ceiling and was a crucial milestone for gender equality in the legal profession.

O'Connor's jurisprudence may be best known for her casting a crucial vote to preserve (in modified form) Roe v. Wade and abortion rights; the modified Roe framework lasted for thirty years until overturned by a more conservative Court majority in 2022. But she also did much to increase judicial protection for property rights and especially federalism.

In a series of rulings in the 1990s and early 2000s, O'Connor was a crucial figure in the Rehnquist Court's "federalism revolution," which did much to revive judicial enforcement of structural limits on federal government power, after a long period when judicial review in this field was extremely weak. Most notably, O'Connor wrote the Court's majority opinion in New York v. United States (1992), which established the rule that the Tenth Amendment bars federal "commandeering" of state governments.

In New York and other opinions, Justice O'Connor emphasized the important point that the purpose of federalism limits on national power is not just to protect state governments, but also to protect ordinary people against the dangers of excessive centralization of power and homogenization of policy. O'Connor's efforts in this field did much to change the Court's jurisprudence for the better, helping to bury the idea that the judiciary has little or no role to play in enforcing structural limits on federal power.

The New York decision, like most of the Rehnquist Court's other pro-federalism rulings, was initially seen as benefiting conservative causes. But in recent years, the anti-commandeering rule and other federalism precedents have been effectively used to protect liberal state and local governments, as well, most notably sanctuary cities.

Justice O'Connor also cast key votes pushing forward the Rehnquist Court's efforts to strengthen protection for property rights under the Takings Clause of the Fifth Amendment. This, too, was a useful step in the right direction, breaking with the unjustified judicial  neglect of property rights in the New Deal era.

Fittingly, in her last year on the Court—2005—O'Connor wrote forceful dissents in Gonzales v. Raich—(a terrible federalism decision holding that Congress' power to regulate interstate commerce authorizes a ban on the possession of marijuana that never crossed state lines or was sold in any commercial transaction)—and Kelo v. City of New London (a terrible property rights ruling in which a narrow 5-4 majority held that private "economic development" qualifies as a "public use" allowing the use of eminent domain). O'Connor's compelling dissent in Kelo helped break the seeming consensus in favor of a very broad definition of "public use" and played an important role in generating the powerful reaction against the Court's decision by state courts and legislatures. If, as is very possible, the Court eventually overrules or limits Kelo, O'Connor will deserve a substantial share of the credit.

In the field of affirmative action, O'Connor wrote two crucial 5-4 majority opinions restricting affirmative action in government contract (the Croson and Adarand cases), but also was the author of the 5-4 majority opinion in Grutter v. Bollinger (2003), upholding the use of racial preferences to promote "diversity" in higher education. It is not easy to reconcile her reasoning in the contracting cases with what she did in Grutter. In my view, she got it right in the former cases, but went wrong in the latter. If anything, the compensatory justice rationale for racial preferences that O'Connor rejected in the contracting cases is more compelling than the deeply problematic "diversity" theory. The Supreme Court has, of course, recently severely cut back on Grutter in SFFA v. Harvard, though the justices arguably stopped short of overruling it completely.

Justice O'Connor can be criticized for never clearly articulating an overarching judicial philosophy, such as Justice Scalia's commitment to originalism, or Stephen Breyer's to a version of living constitutionalism intended to promote democratic values. She drew on a range of different interpretive methods and rarely acknowledged potential tensions between them. On the other hand, her instincts and positions on most important issues were generally good ones. And she was an incisive and compelling writer. I hope and expect that she will be remembered not just for being the first female justice, but also for changing the Court's jurisprudence for the better in several key areas.

The above only covers a few key parts of O'Connor's legacy. There is much more that I cannot hope to do justice to in a relatively short post.

An interesting aspect of O'Connor's life is that she dated future Chief Justice William Rehnquist when the two were law students at Stanford in the 1950s, and eventually rejected his marriage proposal. By choosing John O'Connor (another fellow law student) over Rehnquist, the young Sandra Day (as she was then called) unwittingly helped ensure she could one day be appointed to the Supreme Court. When Reagan chose her in 1981, Rehnquist was already on the Court (appointed by Richard Nixon). It probably would have been politically impossible for the president to appoint the wife of a current justice, given likely charges of nepotism and favoritism. The lesson for ambitious young lawyers and law students who aspire to become Supreme Court justices, is that you should try to avoid marrying anyone likely to be appointed to the Court themselves!

I extend condolences to any of Justice O'Connor's friends, relatives, and former colleagues who may happen to see this post.

UPDATE: I have made minor additions to this post.