The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Reagan was elected with a 49-state mandate to — amongst other things — appoint a conservative court. And he gave us O’Connor & Kennedy…
No one is right all the time.
My bad — I did not intend to flag.
Also Scalia and Reinquist as chief justice,
He was landslided into office because he got inflation under control, something neither Nixon nor Ford nor Carter could do. And when tight money policy to combat it got rough in a recession, he said “Stay the course.” showing something rarely heard of: real leadership.
Only part of the people were clamoring to overturn Roe, their effect can be seen in normal elections.
O’Connor was appointed before the landslide.
Getting inflation under control before you are elected is a pretty good trick.
[Getting it under control after is is a pretty good trick]
Oh yes, I remember the Summer of 1982 quite well:
https://www.youtube.com/watch?v=aKxfxixwdXE
1) Reagan appointed a conservative court.
2) Reagan had won 44 states, not 49, when he nominated O’Connor.
OK, 44 in 1980, 49 in 1984, I stand corrected. But both weren’t landslides?
The Federalist Society was founded at Yale Law seven months after O’Connor was appointed. It was an entirely different world back then: Stevens, Powell, Brennan, Blackmun, and Burger were all GOP appointees.
All things considered, Reagan could have done a lot worse than O’Connor. Also permit me to point out that there aren’t a whole lot of conservative women attorneys out there.
I’m sorry to hear about Justice O’Connor’s passing. She seemed like an impressive person in many respects.
That said, I’m afraid she was wrong about the policy merits of the anti-commandeering doctrine. It gives you more centralisation, not less.
How does prohibiting turning the States into puppets of the federal government lead to more centralization?
Maybe Martinned figures it’s certain that the feds are going to get their way regardless, so the choices are either (1) get some tiny, token amount of local discretion in how the details the feds don’t care about are implemented, or (2) have the feds do it directly and have no role at all.
The idea that they would stay within their enumerated powers is apparently unthinkable.
That’s not quite how I was going to put it, but yes. If you want to promote federalism, make sure the Federal government stays within its enumerated powers. If you’re not going to do that, the anti-commandeering doctrine simply means you’re going to end up with more federal civil servants crawling over every area of the law, from FBI agents to banking regulators to the EPA.
I wouldn’t disagree with that. You need to have both strict enumerated powers doctrine AND anti-commandeering to keep the federal government in check.
Realistically, though, what you really need to keep the federal government in check is a judiciary that’s not chosen by the people being kept in check; They say that no man should be the judge in his own case, but it’s not that much better that a man get to appoint the judge in his own case.
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.
How awkward was their meeting when she became a Justice?
“Youth is wasted on the young?”
“Agreed.”
Apparently not awkward. It was several decades later.
She missed her chance; she could have been the wife of a Chief Justice.
It would have been funny if the breakup had been acrimonious, and they spent their time at SCOTUS sneaking nasty barbs at each other into the footnotes of opinions.
I like multi-pronged tests, and I liked Justice O’Conner.
Twice she wanted to replace a multi-pronged test with a test lacking prongs: replacing Roe‘s trimester framework with Casey‘s undue burden standard; advocating replacing the three-pronged Lemon Test with the unpronged Endorsement Test.
WTF now I hate her.
I notice some people seem to think RGB was the first female SC justice not helped that pop culture documentaries and dramatizations make out like RGB was the one who broke the glass ceiling and try to minimized or pretend that SDO never existed.
I’ve definitely noticed that as well. RBG seemed to revel in her pop culture status, but I appreciated O’Connor’s low-key style much more.
Former Justice O’Connor deserves credit for her solid career, but she was a workmanlike, go-along-get-along type. Former Justice Ginsburg will and should be better regarded for leadership, inspiration, and achievement. Part of that derives from Ginsburg being on the right side of history and winning side of the culture war (and O’Connor being a loser in that context), but not all of it.
Kirkland knows so little about law that he doesn’t know what O’Connor’s positions were on the court.
Kirkland is a Low IQ / Low EQ Troll.
I recall her as an associate justice and a reasonable, nondescript conservative.
What did I miss, clinger? Did Rehnquist, the Federalist Society, or the Heritage Foundation secretly confer some other position(s) or honor(s) in secret?
She will be little remembered beyond the “first woman” point while Ginsburg will be heralded to far greater degree and for ample reason. Part of that is because she was on the wrong side of history and the losing end of the culture war, and part of it is because Ginsburg was a far more important, interesting, and admirable figure.
LOL, Meat.
Remember, your Betters are impatiently watching and taking notes.
.
O’Connor’s actual positions.
How the eff was Kelo not unanimous? (for the “Right” decision, you guess which way I supported)
The most consequential action that Justice O’Connor took during her SCOTUS tenure was to join four other black robed ward heelers to install George W. Doofus as President. As Justice Thurgood Marshall said in another context, “Power, not reason, is the new currency of this Court’s decisionmaking.” Payne v. Tennessee, 501 U.S. 808, 844 (1991). Justice O’Connor learned that lesson well.
The Payne case was where the Court said the jury can hear testimony about the impact of a murder on the surviving victims in deciding whether to impose the death penalty. Or as Justice O’Connor put it in her concurring opinion, “A State may decide that the jury, before determining whether a convicted murderer should receive the death penalty, should know the full extent of the harm caused by the crime, including its impact on the victim’s family and community.” It’s not as if the alternative was deciding the sentence based solely on the circumstances of the murder itself; the defendant gets to provide “mitigating” evidence of how his daddy used to beat him, etc. Why shouldn’t the victim have a say in this context?
Justice Marshall was angry that the Court was overruling some death penalty precedents, which Marshall himself, of course, would never vote to do (/sarc).
How many decisions did he vote to overrule during his time on the Warren Court? I agree with most, if not all, of those overrulings. It’s just that Marshall comes off a bit hypocritical in his dissent in Payne.
In Payne, Marshall was angry because Rehnquist ordered a briefing on a case neither party had brought up, on the basis that it had been a 5-4 decision and with his new conservative majority it would now be decided differently.
Power, not reason.
I suppose the stars would fall from the sky, and the sea would turn to blood, if the Supreme Court were to allow surviving victims of a murder to tell a jury how the murder impacted them.
And won’t someone think of stare decisis! Marshall didn’t, of course, since he consistently ruled that capital punishment was per se unconstitutional, and of course he defied the precedents in doing so.
The Court can overrule. But it’s not supposed to rule on arguments that are not being presented to it.
For the record, that’s not at all obvious. The Court decides cases, not arguments or academic disputes.
For the record, that’s not right. Courts decide the questions presented to them by the parties. See, e.g., United States v. Sineneng-Smith.
So in your world they should have “installed” Gore?
Always amusing to watch the Leftist “REEEEE!!!!” about Bush v Gore when the vote was 7 – 2 that the FL recount was not constitutional.
As was Dred Scott v Sandford.
SCOTUS should have let the recount in Florida proceed. Bush would in all likelihood won that recount, so that would not have been installing Gore.
The Florida Supreme Court kept changing the rules and the Florida Legislature was threatening to void the popular vote in Florida and pick the electors itself. So there’s no way to know who would have won if SCOTUS didn’t get involved. It might have had to get involved later anyway.
You’re right. There’s no way to know. That’s the tragedy. “Thanks to this Court’s decision, we may never know who won. But the loser is very clear: this Court.”
That’s total bullshit. We know with absolute certainty who won in Florida: Bush.
He won on election night, he won the only recount that was actually legal under Florida law, and he was winning that illegal mess the Florida supreme court was presiding over until the Court shut them down.
Sure, it’s possible that, if the Florida supreme court had been permitted to keep holding one illegal recount after another, varying procedures each time, eventually Gore would have come up the ‘winner’, and then they’d have stopped.
But that’s a piss poor basis for claiming the election outcome was actually in doubt.
We know with absolute certainty
In marked contrast to Obama’s birthplace.
Observing Birther Brett’s evidentiary standards flutter predictably with the partisan breezes (and the requirements of whichever conspiracy theory or paranoid delusion is currently attracting his attention) is amusing.
The Florida legislature was threatening to pick the electors itself.
Yet it’s illegal to suggest other states do that 20 years later.
“Bush would in all likelihood won that recount,”
At which point the Florida supreme court would have scheduled yet another recount, and back to the Court.
Bush v Gore? The one where the liberal justices intent on installing Gore suddenly became passionate advocates for state’s rights, particularly the right of Southern states to be free from federal judicial interference when it comes to elections? And the conservative justices intent on installing Bush suddenly became the opposite, insisting that federal judges were the best interpreters of state law?
All nine justices voted their party line. Don’t pretend otherwise.
Reminder: It was actually 7-2 on finding the constitutional violation, the 5-4 decision was on the appropriate remedy. Two of the liberal justices thought it was possible to promulgate fixed standards for counting the ballots, and complete the recount. The majority thought that there wasn’t time to do it in a constitutional manner.
Yep.
One can argue that the FL Supreme Court played a part in Gore’s eventual defeat. By illegally extending the deadline for certifying the FL vote total they wound up truncating Gore’s post-certification timeline.
I believe Florida had the right to try, although they wouldn’t have succeeded.
Another important O’Connor-written opinion, from early in her tenure:
https://oconnorlibrary.org/supreme-court/mississippi-univ-for-women-v-hogan-1981
Single-sex university admissions violated the 14th amendment.
O’Connor was a pragmatic conservative. That drives some ideologues crazy, but we need more of it, not less, in our judiciary and among our elected officials.
This case wasn’t about who wins a conservative pissing match, it was about whether the 14th Amendment required men to be admitted to a state-supported nursing school. O’Connor said the 14th Amendment did in fact impose such a requirement.
In contrast, I seem to recall the ERA was defeated, leaving “sexism” up to the elected branches of government (elected by both men and women, thanks to the 19th Amendment).
Letting a state have a woman’s nursing school *if it wants* is hardly my idea of rigid right wing oppressive meanie-pants ideology.
the ERA was defeated, leaving “sexism” up to the elected branches of government
Well, leaving it up to the elected branches just as much as before. I.e. within the limits of the 14th amendment and the rest of the constitution.
It’s hard to read a ban on sexism into an amendment which for the first time put “male” into the Constitution (as part of the recommended standard for voting rights).
And yet it’s quite easy to read it into the equal protection clause.
It was not debatable, until in 1980 when the Republican Party reversed 40 years of approval into an implacable, ill-informed and prejudiced, opposition.
That’s… kind of ambiguous.
I take it you mean that 1980 was when the GOP soured on the ERA.
But proposing the ERA isn’t evidence that you thought the EPC already mandated equality of the sexes. If you thought THAT, it was redundant!
As for why they soured on it, they were successfully persuaded that passage of the ERA would result in a long list of evils. The very evils that reading it into the EPC has resulted in, so I’d say they were right about the ERA.
The sad thing is, those evils weren’t actually a result of equal rights for women. Instead they’re a result of the pathological turn civil rights law took after the 60’s. Which is why we got them despite the ERA being defeated.
Still, if they managed by hook or by crook to foist the ERA on us, I’m sure it would be used as a pretext to double down on those evils.
The Republicans used to be all for it, but many Democrats were against it because they wanted to preserve what we would today call “paternalistic” laws regarding women’s working conditions, hours, etc.
Under JFK (bet you didn’t know he was a feminist!), they decided not to endorse an ERA but to encourage suits under the EPC instead. This was taken up by RBG. Meanwhile the EPC hadn’t changed, just the political and judicial climate.
By 1980, a populist upsurge got the GOP to decide they were no longer in favor of federally-imposed geometrical equality between the sexes, but it was too late, we’re getting it anyway, and getting it hard.
“Letting a state have a woman’s nursing school *if it wants* is hardly my idea of rigid right wing oppressive meanie-pants ideology.”
Ever hear of Title IX????
The real case was VMI because Virginia had set up what actually was a better program at Mary Baldwin College for female cadets. Mississippi hadn’t, and this was just when nurses pay started getting *way* better than most hardhat jobs.
.
Yes. You have, too. Unfortunately, you substitute things you’ve “heard of” for things you’ve read, so you don’t know what Title IX says.
I admired Justice O’Connor immensely. She’s part of the reason I became a lawyer. This was a very sad loss.
O’Conner made a very important point about Wickard in her Raich dissent:
“. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress’ reach.”
Namely that while wickard was correctly decided, the problem is the courts have misinterpreted the holding in Wickard in a manner that greatly expanded the reach of the commerce clause well past the limits intended in the constitution.
Of course Somin would admire her! [BARF]
Outside of the original constitutional provision that importation of slaves would end on a certain date, there are no (invisible!!) countdown clocks in the document.
Identity politics leads to mediocrity.
Your definition of mediocre is highly suspect. Sounds a lot like ‘disagrees with DWB.
Also, is you hate hidden clocks, check out Shelby County…Countdown clocks hide in statutes when it comes to voting rights apparently.
Having to prove that something is being done illegally before the feds step in and take over?
So inconvenient!
I don’t even know what you’re talking about.
But it’s a small mind that can’t understand that someone they think is wrong could still be smart.
Shelby v Holder and pre-clearance dumbass — you LITERALLY brought it up.
The 1960 are over and racist Democrats lost — do try to keep up!
The racists lost . . . and reacted by becoming disaffected, deplorable Republicans, but that hasn’t changed the fact that better Americans still kick the bigoted shit out of our vestigial, doomed clingers in the culture war.
Ah yes, all those Republicans rioting and chasing Jews — oh, wait…
2020 and 2023 have been VERY revealing — STFU turd.
Half-educated right-wingers — especially those either disingenuous or stupid enough to claim that antisemitism (or racism, or misogyny, or gay-bashing, or transphobia, or Islamophobia, or immigrant-hating) is mostly the work of liberals — are among my favorite culture war casualties.
Carry on, clinger . . . but only so far as your betters permit.
And try to be nicer, lest better Americans decide to stop being so magnanimous toward the culture war’s roadkill, such as you.
Turd clinger denies what we all see … all over the world.
????????????????????????????
BWA HA HA HA HA!!!
Sigh. Yet another worthless, raving troll to mute.
the original constitutional provision that importation of slaves would end on a certain date
Where does it say that in the constitution?
It doesn’t. It says that Congress couldn’t ban the importation of slaves prior to Jan. 1, 1808.
And yet:
https://www.encyclopedia.com/humanities/applied-and-social-sciences-magazines/1808-congressional-ban-importing-slaves
Sure, they banned that importation on the earliest date when doing so would be constitutional. But it’s still true that the Constitution merely prohibited doing it earlier, it didn’t mandate that it be done.
Importation would have been banned at the founding, but southern states would not have voted for passage, so it was yet another compromise.
While yes, it was not a mandate, the language was added and understood that a later congress would in fact ban it — which they did.
A leftist POS. Good riddance.
“Bob from Ohio 4 months ago
Flag Comment Mute User
Decent people can elect not to make negative comments on an obit post.”
https://reason.com/volokh/2023/08/18/james-l-buckley-1923-2023/?comments=true#comments
Wait, Reagan made a campaign promise to nominate a woman? Wow, when Biden made a similar promise and followed through, conservatives were foaming at the mouth. I seem to remember the other Ilya waxing wroth about Justice Jackson’s nomination.
“Waxing Wroth” would be a good name for this comment section.
When Ronald Reagan and Joe Biden made their promises to nominate a woman and a black woman, respectively, affirmative action was baked into the electoral cake. When Thurgood Marshall retired, George H.W. Bush nominated a toady who was unfit to carry Marshall’s briefcase.
As an advocate, Thurgood Marshall altered American history in a more significant way than any other twentieth century figure during peacetime. He also served as a U. S. Court of Appeals judge and as Solicitor General. His successor was an unhinged buffoon.
You put conservatives here in a tough spot. Should they rise to the defense of Justice Thomas, or accept your characterization of him and hold it up as an example of how race-based selection and affirmative action is bad.
When I see people with mistaken constitutional ideas relentlessly attack Justice Thomas, even in an obit thread about another Justice, my inclination is to think Justice Thomas must be doing something right in order to attract such attacks.
Certainly he was appointed on racial grounds – policymaking positions will realistically be filled based at least in part based on political considerations, and political considerations include racial. I’m permitted to oppose racial discrimination in, say, college admissions and regular-people jobs, while at the same time refusing to batter my head against the brick wall of high-level political patronage.
I think we know the score here. If Justice Thomas had become a Souter and declared a right to gay-married abortions, then he would be a judicial statesman, sans peur et sans reproche. The people who today single him out for attack would be praising him to the skies and denouncing the racist haters who questioned his wisdom.