Today in Supreme Court History: September 21, 1981

9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Justice Sandra Day O'Connor

Comments

[Dan Schiavetta]

McLeod v. General Electric Co., 87 S.Ct. 5 (decided September 21, 1966): Harlan reinstates NLRB decision forcing General Electric to negotiate with electrical workers’ union even though some negotiators also were members of other unions GE was bargaining with on other trades (a business cannot be forced to bargain with more than one union at a time for the same trade)

[JoeFromtheBronx]

Justice O'Connor's last opinion was Ayotte v. Planned Parenthood of Northern New England (January 2006).

In a rare unanimous decision regarding abortion (not even a concurrence), the Supreme Court determined a parental notification statute would be unconstitutional when applied to the very small percentage of minors for whom an emergency abortion would be necessary to avert serious damage to their health.

The limited pragmatic result was a suitable final swan song for Justice O'Connor.

She did go on to write more opinions. She later served on the court of appeals.

Kelly Ayotte, who argued the case at SCOTUS, later became a senator.

[Brett Bellmore]

These days Democratic and Republican ideas of what constitutes a good (or even tolerable!) Justice are so disjoint that the sort of near unanimous confirmation she received is basically impossible. We could argue about where "impartially upholding the law" sits on the Venn diagram, but it's trivially not in BOTH circles, since they don't overlap.

[Sarcastr0]

The idea that the parties are farther apart on Constitutional issues than ever before or even the 1980s is ahistorical.

The means considered legitimate have changed, and the parties’ central control has increased. That’s all.

You are sounding apocalyptic these days. Even as you claim Trump is normal you claim nothing else is.

[Frank Drackman]

Vot a Vorld! The candidate who puts Tampons in boys restrooms and lied about his military service is “Normal” and the one who actually served in Combat is “weird” even Senator Fetterman sees the writing on the wall (notice I don’t call him “Stuttering John” anymore? He’ll be a welcome addition to the Repubiclown Senate majority)

Frank

[JoeFromtheBronx]

The Federalists and Democratic-Republicans were strongly split on constitutional issues. So, were Whigs and Democrats. As were Republicans and Democrats in the 1860s and beyond.

[Sarcastr0]

Yep. Listening to a podcast on seminal American elections. There’s like half a dozen times we were more politically riven than we are now.

Not that now is peaches and cream, but we are less special than we think.

[Dan Schiavetta]

Aside from the Civil War, I don’t think we’ve seen anything worse than 1/6/21, and in important ways, what happened then is still with us today.

[Sarcastr0]

1930s were real bad. Just wasn’t as easy to get to the Capitol.

Nullification Crisis too.

Heck MacArthur fucking around could have been terrible - the politics were there, just not the logistics.

We muddle through a lot.

[Frank Drackman]

The stolen erection was pretty bad, but c’mon (man!) 12-7-1941? 11-22-1963?, 9-11?, Super Bowl LI?

Frank

[ducksalad]

Let’s see.

1. 1876. Tilden vs Hayes, deadlocked presidential election, Republicans had to end Reconstruction in return for presidency.
2. 1918. Woodrow Wilson actually does put a political opponent in jail for sedition.
3. 1932. Bonus Army of 40,000+ occupies parts of Washington, DC. At least two of them killed and several dozen injured, eventually cleared out using military, including tanks.
3. 1948. Democrats in four southern states refuse to put Truman on ballot, in seven other southern states Democrat factions put a competing ticket on the ballot.
4. 1957. Federal troops needed to enforce a court order in Arkansas.

[Alpheus W Drinkwater]

As far as violence associated with voting goes, I think the worst period was probably the 1850's and the breakup of the Whig party. The age of the Know Nothing party. Serious violence and intimidation at polling places.

[Sarcastr0]

I might say 1930s, with the strikes and strike breakers.

Lots of deaths; it would have gotten worse but FDR managed to get the trust of both sides and used it well.

[Stupid Government Tricks]

What's changed is how much government intrudes into everyday lives. Washing machines, eviction moratoriums, federal food price controls being promised.

It has long since reached the point where people are better off siccing government on each other than minding their own business.

I can't think of any better way to get people at each other's throats. Imagine if there were only one company running all stores, and your choices were one candidate who wanted to sell only blue jeans, no other pants, and crunch almond butter, no peanut butter and none of that yucky creamy variety; the other candidate wanted to sell only four door sedans, no pickups or SUVs, and only flip flops, no other kinds of shows.

That's only an exaggeration. It's what we have today in politics, all because government simply does way too much to way too many people.

[Sarcastr0]

This message could have been from the antebellum South. Or the 1890s. Or the 1920s. Or the 1930s. Or the 1950s. Etc. etc.

It is a bog standard populist antimodernist strain. It’s always intolerable until it isn’t. It’s always the cause of all our problems until a new generation with new problems sets a new line of intolerable government intrusion and has a new set of complaints.

And after sufficient time, historians point to the actual underlying issue and it’s never anything as inchoate as government too intrusive.

[Stupid Government Tricks]

In other words, you can' actually rebut it, let alone refute it, so you smear it by association.

Please try responding to the actual content.

[Krychek_2]

I disagree with your premise that it’s a bad thing for government to try to better people’s lives. We can disagree on what bettering people’s lives looks like in specific cases, but you seem opposed to the idea on principle.

[Stupid Government Tricks]

Damn straight! What betters peoples lives is an individual choice. You don't know what betters my life, I don't know what betters your life, and neither of us knows the slightest bit about bettering anybody else.

Government "solutions" are one size fits nobody solutions. The only thing government can do to better people's lives is stop trying to better their lives. Keep them from hurting each other and and taking each other's stuff, and otherwise just get the fuck out of the way.

[Jason Cavanaugh]

Clean air and water doesn't improve your life?

Your extremism is easily refuted.

[David Nieporent]

Clean air and water doesn’t improve your life?

All else being equal, of course they do. But all else is rarely equal. What if one's employer shuts down because of environmental regulations? Would one be better off with slightly dirtier air/water, and a job?

[Stella Link the dog]

[Jason Cavanaugh]

In your hypothetical, how many other families benefit from the lack of pollution? How many cancer cases won't materialize? Will more children grow up without asthma? If the business resulted in only 'slightly dirtier' air and water, why could they not just meet the regulations? Why can't someone just get a different job?

We can play hypotheticals all day long, but the government does not exist, and regulations aren't passed for the sole benefit of a single person. Parsing the entire argument down to "this specific thing the government did was bad for me in this manner" while ignoring the benefits (even to oneself) it brings about to everyone else just demonstrates that the person in question is pretty damn selfish.

To suggest that nobody knows anything about what betters anyone else's life anywhere is absurd on its face. We all have the same basic needs.

[Sarcastr0]

Whinging about government size is largely axiomatic; there is nothing to rebut.

Except that these times are not special or intolerable any more than usual.

[Stupid Government Tricks]

Your second paragraph is an assertion contrary to my assertion, but I provided reasons and examples; you provide none.

"Nuh-uh" is not a rebuttal.

[Sarcastr0]

I gave a ton of historical examples that the arbitrary lines you drew are arbitrary.

[Krychek_2]

I think Trump is a unique event in American history. If, God forbid, he is re-elected, we will muddle through.

Though as I’ve said before, I have this nagging feeling that we’re in a transitional period and the whole world will look radically different in the not too distant future. We’ve got mass migration of people trying to escape war, drought and famine. We’ve got a world wide rise in strongmen and an increase in religious violence. We’ve got militia movements. It really would not take that much for the whole thing to blow up. A rapid acceleration in climate change, for example, would probably do it.

[Stella Link the dog]

Stupid says: "but I provided reasons and examples."
No, you didn't.

[Noscitur a sociis]

Brett can correct me if I’m misreading him, but I don’t think this comment is particularly apocalyptic, or even critical. Nor is he saying that “ The idea that the parties are farther apart on Constitutional issues than ever before”. Rather, he’s saying that right now, the parties disagree enough about what they want in a justice that there’s no real prospect of a nominee securing this kind of bipartisan support. And that seems hard to argue with. With no need to command more than 50 senators, and no real prospect of partisan defection, there’s not even really an incentive to try if the president’s party does control the senate.

The only situation where it’s even plausible is if a vacancy arises when the senate and presidency are controlled by different parties. But I don’t expect any plausible leaders in either role any time soon to agree to find a compromise candidate versus keeping the seat open and hoping things get fixed at the next election (nor is that even an irrational decision, really). So absent a major shift in political culture, I think Brett is not only right, but kind of inarguably so.

[Sarcastr0]

The change with respect to nomination votes hasn’t been level or intensity of disagreement it’s been party control and when it’s okay to block a nominee you disagree with.

[ducksalad]

I think it’s not seriously debatable whether it’s OK to vote against a nominee you don’t want. That’s kind of the whole point of voting.

You can make a somewhat stronger case that it’s not OK to refuse to even hold the vote. But usually the candidates denied a vote would almost certainly have lost the vote anyway, so the complaint is really just about political accountability, not getting people onto the court.

[Sarcastr0]

The norm was you give great deference to the President for their choice.

I agree with you in that I think that was kind of a silly norm. Though it's breakdown has lead to some lame-ass nomination hearings.

[Brett Bellmore]

We've gone over the history of Supreme court nominations. That supposed norm is fiction.

[Sarcastr0]

What are you talking about? Ginsberg was ideologically not someone the GOP was a big fan of. 96-3. Everyone thought O'Conner would end abortion. 99-9.

Scalia. 98-0.

For a long time, these votes were demonstrably not about ideological difference.
It was here, among other places, that I was told that the change was about to what extent ideology could serve as a reason to vote against a nominee.

If you have another explanation, let me know. But you have begun just asserting stuff about history with no backup.

[Brett Bellmore]

Exactly. I don't think there's any hypothetical judge out there that both parties could agree on for the Supreme court, because the parties have become well sorted, and their conceptions of what Justices are supposed to be doing are different enough, that being acceptable for the Supreme court for one party guarantees the other party will think you disqualified.

[Alpheus W Drinkwater]

Also, Supreme Court decisions have become so much more important and influential, perhaps because of more activist judges on both sides of the spectrum. The stakes are just much higher now.

[JoeFromtheBronx]

Justices were fairly influential in the early to mid 20th Century. They were influential in some ways before then too, which factored into some confirmation conflicts.

The modern-day shift started in the 1980s. But, the judiciary was also a major concern in the Progressive Era.

The "stakes" are not the only factor. It is part of wide political developments.

[Brett Bellmore]

Sure. You needed two things, in order to make bipartisan approval of justices impossible.

1. Who they were had to become very consequential. That did happen in the early to mid 20th century, when it was first realized that by picking the 'right' justices, you could eliminate pesky limitations on federal powers, and later that the justices could be used to impose policies that were politically dangerous for elected officials to enact by pretending they were constitutionally required.

Once that became the case, they weren't being picked for judicial competence anymore, at the higher levels, but instead as ideological champions.

2. It also required the parties to become effectively sorted, so that ideological support for a particular sort of justice would be reliably found in only one of the parties, rather than spread across both.

It was the ideological sorting of the parties that ended bipartisan confirmations, but only because the justices, and to a lesser extent judges, had come to be seen as having the job of advancing particular ideologies and policies, rather than just impartially enforcing rules made by others.

[Sarcastr0]

I don’t think either of those things is new as you claim.

[Dr. Ed 2]

Ayotte candidate for Governor

[verochkax]

Terrible judge who believed that decisions should be justified by policy, not the Constitution.

[Dan Schiavetta]

We agreed at the time, "She's probably the best we can get from Reagan." Just her presence at conference probably put an end to a lot of old-frat-boy crudity.

Years later, in her autobiography, she talked about riding horses on her family's 250-sq-mile ranch. I had to blink. But it was true. Not 250 acres. 250 square miles.

[Mr. Bumble]

You need to get out more.
It's a big country.

[Frank Drackman]

You get 50 miles west of Manhattan it’s mostly trees

[John F. Carr]

In Internet units, that's 1/6 Rhode Island.

[Dan Schiavetta]

Closer to 1/4. Or in my local terms, about the size of Queens County.

[Mr. Bumble]

Not quite.
178 square miles of which 70 square miles is water.

[Michael Resanovic]

Where is Rhode Island?

They say it's a state, but I've never spotted it on a map. I'm beginning to think it doesn't exist.

[Dan Schiavetta]

You must be from Texas.

[Syd Henderson]

Rehnquist was pleased to have his old classmate on the Court with him.

[Frank Drackman]

Was that before or after he got Sober?

[Sarcastr0]

I know multi pronged tests are out of favor, and I get why. But her style did comport with my aesthetic biases, even if as implemented it was not the best.

[Mr. Bumble]

Who fucking cares? Douche!

[David Nieporent]

Hey, Mr. Bumble: you accidentally left your laptop unattended and some asshole started posting comments here under your account.

[Mr. Bumble]

Is that what happened to you, or are you the asshole posting under your account.
Asking for a friend.

[Stella Link the dog]

Congratulations on a typically witty and erudite retort.

[Mr. Bumble]

I'm sure David and I appreciate the compliment.

[Dan Schiavetta]

That’s why I muted him

[Mr. Bumble]

You sir are a hypocritical snowflake feigning offense at some occasional vulgarity while formerly regaling the conspiracy with tales of your adventures with Go-Go dancers and porn movie reviews.
So, fuck you very much!

[verochkax]

Immigration restrictionists have been sounding this alarm since the early 80s, that maybe filling up America with illiterate third world peasants for cheap labor wasn't such a good idea.

Republicans were too busy trying to get cheap labor.

[JoeFromtheBronx]

At times, people pine for the past when unanimous or near-unanimous votes are possible.

In recent years, political divisions have led to closer votes. Roberts was confirmed 78-22. That is not historically that notable, factoring everything in. Alito was confirmed 58-42. Swing vote, a shift of the Court’s ideological balance. Again, not too surprising.

The current partisan divide started with the Obama nominations, including with people like Kagan, who on balance should have been fairly uncontroversial. No shift. She went out of her way to appeal to conservatives. But, such was the nature of current political divisions, she only received a few Republican votes.

The Trump nominations each have a big asterisk on them. But, the close partisan divide continues. Jackson received three Republican votes. On a neutral level, that was asinine.

As former Judge Luttig noted, she was qualified & replaced Breyer. It would also have been in Republicans’ interest to rest on their laurels (6-3) and vote for the first black woman justice. Instead, a person like Senator Graham was petty and voted against her in part because he wanted another person on the shortlist & ranted about how Trump nominees were treated badly.

It wasn’t just because they were against her ideologically. It was a partisan division thing.

Historically, at multiple times, including in the antebellum era, confirmation votes were close, with multiple rejections. Andrew Johnson was denied any nominations. Once he was gone, Congress went back to normal order, which in part led to a major constitutional case to flip (Legal Tender Cases).

[ducksalad]

At times, people pine for the past when unanimous or near-unanimous votes are possible.

I don't think the senators themselves have changed, a few were around in your good old days. It's the base voters of the two parties who are no longer willing to forgive even harmless gestures of bipartisanship. (Harmless as in wouldn't change the result.) A Republican who voted for Kagan, or a Democrat who voted for Kavanaugh, risks being primaried by an "ultra" on their own side.

[Dr. Ed 2]

Jackson is not qualified

[not guilty]

I think Justice O'Connor was the last member of SCOTUS with previous experience in elective office. It used to be fairly common for presidents to nominate former office holders.

[Commenter_XY]

I remember when she was nominated by Pres Reagan, it broke new ground. She was the first woman.

Do you know what impressed me, NG? Not her opinions. She left SCOTUS (2006) to take care of her husband, who had ill health. I don't think that became clear to the public until much later, after her husband died (2009). Wow. What a selfless act.

[The Margrave of Azilia]

A handmaid of the patriarchy, suffering from false consciousness.

But seriously, that reflects quite well on her.

[theobromophile]

It's also a very sane act, and one with a fair amount of perspective.

She had been on the Court for a quarter century at that point. It's good to see people voluntarily relinquishing power, rather than doing the Grassley/Feinstein/RBG/McConnell routine of clinging to their seats until they shuffle off their mortal coils. There are over 300 million people in America - we can find adequate replacements for anyone. I appreciate people who understand that.

It's also good to see someone basically say - intentionally or not - that a quarter century is a good run. Was she going to do much in the next ten years that she hadn't already done?

She also ensured that her seat was filled by a conservative Justice. Kennedy did the same thing for us: retired when a Republican was in the White House.

[Commenter_XY]

All very good points.

[Jmaie]

"Was she going to do much in the next ten years that she hadn’t already done?"

I don't disagree with anything you've said, but - do judges have ambitions to accomplish things? Certainly many on the pro-choice side think the current majority were all along hoping/planning to overturn Roe, but in general do justices really think that way?

[Alpheus W Drinkwater]

The last President who really seemed to favor that was Truman. Justices Minton and Burton had both been US Senators, and Chief Justice Vinson had been a US Rep.

[JoeFromtheBronx]

I think for Truman it was as much that he knew the people.

[Mr. Bumble]

Vinson had a pretty full career having served in the U.S. Army in WWI, a Commonwealth attorney in Kentucky, a U.S Representative from Kentucky, an appellate judge on the U.S Court of Appeals for the District of Columbia Circuit and as Secretary of the Treasury.

[not guilty]

Eisenhower nominated then-Governor Earl Warren. Franklin Roosevelt nominated then-Senator Hugo Black, former Governor Frank Murphy, then-Senator (and former House member) James Byrnes. Hoover nominated former Governor Charles Evans Hughes (Republican nominee for President in 1916) as chief justice. Harding nominated former President William Howard Taft and former Senator and House member George Sutherland. Taft nominated former House member Mahlon Pitney and then-Governor Charles Evans Hughes as associate justice. Theodore Roosevelt nominated former House member William Henry Moody.

[JoeFromtheBronx]

Warren was a political calculation. Ike wouldn’t have chosen him given his druthers. The others were judges, including Brennan, who was also at least partially a political calculation.

[Dr. Ed 2]

Eisenhower later said that Earl Warren was the biggest mistake he made as President.

[ducksalad]

Don’t see how that’s feasible given that Recusal Fu has become a common fighting tactic. Elective officials have thousands of donors, and millions of others tied to a donor under the six levels of Kevin Bacon theory. Elected officials have taken positions on issues that will come before the court. Elected officials have (mostly) given fiery but not very accurate speeches denouncing SC opinions they don't like.

[grb]

(My Kevin Bacon score is 3. Can anyone here beat that?)

[Mr. Bumble]

Now only if officeholders had real world experience in something beside government we'd be getting somewhere.

[The Margrave of Azilia]

At least the most recent Justice Jackson had experience defending poor people in criminal cases - one part of our system which needs improvement.

Alas, she was so busy getting real-world experience that she didn't have time to master the technical details of biology.

[not guilty]

Prior to the current Justice Jackson, the last member of the Court with significant criminal defense experience was Thurgood Marshall.

[verochkax]

To her credit, she voted with the majority in Bowers v. Hardwick. She recognized that the Constitution does not guarantee a right of a gay man to insert his erect member into another man's anus.

[verochkax]

Why are Jews so adamantly pro-abortion?

[Dr. Ed 2]

Why are Jews so left wing? (Although that may be changing.

[Jason Cavanaugh]

You're a pretty good argument for anyone to support abortion.

[JoeFromtheBronx]

[deleted]