on Dec 1, 2023
at 10:23 am
President Ronald Reagan with his Supreme Court nominee Sandra Day O’Connor at the White House in 1981. (White House Photographic Collection via Wikimedia Commons)
Sandra Day O’Connor, a self-described “Arizona cowgirl” who made history as the first woman to serve as a Supreme Court justice, died on Friday in Phoenix, Arizona. She was 93.
The cause was complications related to advanced dementia, probably Alzheimer’s disease, and a respiratory illness, the Supreme Court announced.
Chief Justice John Roberts said in a press release announcing O’Connor’s death that O’Connor “blazed a historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education.”
Nominated by President Ronald Reagan in 1981, O’Connor served 24 years on the court before stepping down to take care of her husband, who also battled Alzheimer’s. During that time, she was the court’s key vote on a wide range of issues, including abortion, affirmative action, and religion. She was known less for an overarching judicial philosophy than for crafting opinions that were often narrow and practical – sometimes to the disappointment of conservatives.
But if O’Connor proved disappointing to conservatives, they were delighted with her successor, Justice Samuel Alito. Alito’s confirmation in 2006 kicked off a shift to the right that accelerated with the arrival of three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – nominated by former President Donald Trump. During the 17 years that followed O’Connor’s retirement, the court overturned some of her best-known decisions, chipping away at her judicial legacy.
A formative childhood on the Lazy B
O’Connor was the oldest of three children born to Harry and Ada Mae Day. She grew up on the family’s Lazy B Ranch, which sat astride the border between Arizona and New Mexico and occupied about 250 square miles – almost four times the size of Washington, D.C. The area was an unforgiving environment, receiving 10 inches or less of rain each year. The land was rocky, and the wildlife included coyotes, bobcats, and rattlesnakes. “It was no country for sissies, then or now,” O’Connor wrote in Lazy B, the 2002 memoir about life on the ranch that she co-authored with her brother, Alan Day.
The Lazy B, O’Connor explained proudly, was the “largest and most successful ranch in the region,” thanks to Harry Day, whom his children described as “exceedingly kind to everyone” but also a perfectionist who could be critical. “His children,” O’Connor acknowledged, “never heard him admit he was wrong about anything.”
Once, in the summer before her senior year in high school, Sandra got a flat tire while driving the ranch’s pick-up truck to bring lunch to a round-up crew working two and a half hours away. It took her over an hour, working alone in the hot sun, to change the tire, making her late to meet the crew. When Sandra explained to her father what had happened, his response was that she “should have started earlier.” Sandra countered that she “didn’t expect a flat,” but he retorted that she should “expect anything out here.” She wrote in Lazy B that although she “had expected a word of praise for changing the tire,” she instead “realized that only one thing was expected: an on-time lunch. No excuses accepted.”
Sandra’s mother, Ada Mae, was the college-educated daughter of a prosperous Texas merchant and rancher. Ada Mae Day worked just as hard as her husband, in a household that lacked running water and electricity until Sandra was 7, but according to Lazy B she “never stopped trying to dress well and take care of herself.”
Sandra’s first babysitters were cowboys, she wrote, including one who “took me up on his saddle and rode around the yard with me on horseback” as soon as she was able to sit up. She explained that during her years on the Lazy B she “developed a love for the land and for the way of life on the ranch that has stayed with me.” More broadly, life on the ranch prepared her for other experiences in later years, as she noted that until she began to ride with the cattle drives, “it had been an all-male domain. Changing it to accommodate a female was probably my first initiation into joining an all-men’s club, something I did more than once in my life.”
The Lazy B was so remote that Sandra’s parents sent her to live with her grandparents in El Paso, Texas, a four-hour train ride away, to attend school, beginning in first grade and continuing (except for one year) through high school. “I was always homesick when away from the ranch,” O’Connor wrote.
Encountering barriers as a young female lawyer
In September 1946, then 16-year-old Sandra Day enrolled at Stanford. She wrote in Lazy B that she “felt poorly prepared compared to the other freshmen,” but she was admitted to a program that allowed her to start law school at Stanford in her senior year, as one of only four women in her class.
While at Stanford, Sandra was a top student who earned a place on the law review and finished as the runner-up in the school’s moot court competition with her partner, William Rehnquist, who would become a justice and then the chief justice of the United States. She and Rehnquist dated for a while, and she even brought him home to the Lazy B before breaking up with him in December 1950. But author Evan Thomas, in his 2019 biography of O’Connor, reported that in March 1952, after Rehnquist had left Stanford for a clerkship at the Supreme Court with Justice Robert Jackson, Rehnquist proposed to Sandra in a letter from Washington.
Sandra, Thomas noted, “temporized. She did not say no” to Rehnquist, “and she did not tell her old beau that she was now seeing someone else”: John O’Connor, another fellow law student, whom she met when they were both assigned to work on the same article for the law review. Sandra married John in a ceremony at the Lazy B in December 1952.
John O’Connor proved to be an extraordinarily supportive spouse in an era in which women – especially married women with children – were generally not expected to have career ambitions, much less wind up on the nation’s highest court. In that way, he bore a strong resemblance to Marty Ginsburg, the husband of Ruth Bader Ginsburg, who in 1993 joined O’Connor on the court as the second female justice.
Also like Ginsburg, O’Connor was unable to find work at a law firm even though she was at the top of her class and an editor of the law review. One California-based firm, Gibson Dunn, did offer O’Connor a job – as a legal secretary.
Instead, O’Connor applied for a job with the San Mateo County government, where she agreed to work for free until the office could find funding for her. She stayed there until 1954, when she moved to Germany with her husband, who served as an Army lawyer. In Germany, O’Connor worked as a civilian lawyer for the Army Quartermaster Corps.
The couple returned to the United States in 1957. While John took a job with a law firm in Phoenix, Sandra was once again unable to find a job at a firm. Instead, she hung a shingle at a shopping center with another young lawyer, taking on all kinds of cases.
The O’Connors had three sons. Although Sandra often made life as a working mother look effortless, she later told an oral history project that maintaining a balance between her work and her family was “desperately hard.” After her second child was born, she temporarily stepped away from the full-time workforce because of a common problem: lack of childcare. “I had a wonderful babysitter,” O’Connor told the co-authors of a book on career re-entry for women. “But she left after my second child was born. It was a disaster for me because there were no daycare centers in those days and I tried, but I could not find another competent sitter.” For the next five years, O’Connor juggled caring for her children with a hodgepodge of legal jobs, ranging from grading bar exams to bankruptcy appointments. She also did volunteer work, becoming president of the local Junior League and, with her husband, got involved in Arizona Republican Party politics.
A varied career path to the country’s highest court
The time that O’Connor had invested in local politics paid off when she decided to return to full-time work in 1965. She spent four years as an assistant state attorney general until she was appointed to the Arizona State Senate after the incumbent stepped down. O’Connor ran for the seat in her own right in 1970; she won and was re-elected again in 1972. That same year, she became the Republican majority leader – the first woman in the country to hold that job. In 2013, O’Connor told the Harvard Business Review that her experience as a legislator taught her to “work with people because you want to have as many on board for your position as you can.”
O’Connor opted not to seek reelection in 1974. Instead, she ran for – and won – a trial-court judgeship in Maricopa County, the state’s largest jurisdiction. In 1979, she was appointed to the Arizona Court of Appeals by Gov. Bruce Babbitt, a Democrat.
During his campaign for president in 1980, Ronald Reagan had promised to nominate a woman to the Supreme Court. Shortly after taking office, he had an opportunity to do that, with Justice Potter Stewart’s announcement in June 1981 that he would retire in early July. As a little-known judge who had served for only a short time on Arizona’s intermediate appellate court, O’Connor was not an obvious choice to succeed Stewart. But there were relatively few conservative female judges, and O’Connor had friends in high places – most notably, Chief Justice Warren Burger, whom O’Connor had met during a houseboat vacation with mutual friends a few years before. And when O’Connor met with Reagan, a fellow westerner who liked to retreat to his ranch in California’s Santa Ynez mountains as often as possible, Reagan was immediately impressed.
In his remarks announcing the nomination, Reagan described O’Connor as a “person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good which have characterized” the justices who preceded her. Reagan fielded questions from reporters about O’Connor’s views on abortion and the opposition to her nomination that had already formed among anti-abortion groups. Reagan assured reporters that he had “interviewed her personally” and was “completely satisfied” with O’Connor’s “right-to-life position.”
O’Connor’s three-day confirmation hearing began on Sept. 9, 1981. It was the first time that a Supreme Court confirmation hearing had been televised. O’Connor was confirmed by a vote of 99-0.
Pivotal role at the center of the court
During her nearly quarter-century as a justice, O’Connor wrote 645 opinions. In her interview with the Harvard Business Review after leaving the court, she said that “[i]t’s good if you can get agreement among your colleagues” when drafting opinions. But if not, she continued, “you want to write narrowly so that you don’t decide too much in that one situation.” She acknowledged that she tried to “avoid sweeping rulings that would affect things we just didn’t know about, things that hadn’t been described. Otherwise,” she said, “you might be taking giant steps you’ll live to regret.”
Others (including some of her colleagues) sometimes saw O’Connor’s jurisprudence differently. In a 2001 article, law professor Jeffrey Rosen complained that with her “refusal to commit herself to consistent principles, O’Connor forces the court and those who follow it to engage in a guessing game about her wishes in case after case. Each of her decisions is a ticket for one train only.”
Despite Reagan’s professed confidence in O’Connor’s stance on abortion in 1981, 11 years later O’Connor joined two other Republican appointees in reaffirming a constitutional right to an abortion. In Planned Parenthood v. Casey, the court considered a challenge to a Pennsylvania law that imposed a variety of restrictions on women seeking an abortion, including a requirement of “informed consent” for all women, parental consent for minors, and mandatory spousal notification for married women.
In his memoir, the late Justice John Paul Stevens reported that he believed the court would use the Pennsylvania case as an opportunity to overrule Roe v. Wade, the court’s landmark 1973 opinion establishing a fundamental right to an abortion. Indeed, Stevens noted, Rehnquist had even drafted an opinion that would do so. But O’Connor, along with Justices Anthony Kennedy and David Souter, “surprised us,” Stevens wrote, with a rare joint opinion that stressed that “the essential holding of Roe v. Wade should be retained and once again affirmed.” At the same time, their opinion made it easier for states to regulate abortions by scrapping Roe’s focus on the trimester framework, which barred the state from virtually any regulation during the first trimester of pregnancy. Stressing that “not every law which makes a right more difficult to exercise” is necessarily a violation of that right, they explained that such regulations would be unconstitutional only if they imposed an “undue burden” on a woman’s right to choose an abortion. Applying this new test, the court struck down Pennsylvania’s spousal-notification provision but upheld the other provisions of the law.
Casey stood for 30 years. But in June 2022 – in an opinion written by O’Connor’s successor, Justice Samuel Alito – the court’s reinvigorated conservative majority ruled that the Constitution does not protect a right to obtain an abortion at any stage of pregnancy. Roe and Casey, Alito wrote in Dobbs v. Jackson Women’s Health Organization, “represent an error that cannot be allowed to stand.”
Deep commitment to federalism
O’Connor was a strong proponent of states’ rights and played a key role in one of the Rehnquist court’s most significant doctrinal shifts: limiting the power of the federal government. Law professor Stephen Wermiel wrote in 1991 that federalism was a “unifying theme” for O’Connor. She was, Wermiel contended, “strongly motivated by her own abiding faith in good government at the state level and her belief that the Framers of the Constitution envisioned a genuine partnership of shared powers between the federal government and the states.” O’Connor’s “experience as a state legislator and judge,” Wermiel suggested, gave “her a degree of trust in state government and state courts that goes well beyond that of her colleagues.” (O’Connor’s skepticism of the federal government may have also been colored by her time on the ranch; in Lazy B, she referred to the “paper-pushing bureaucrats” at the federal Bureau of Land Management and the agency’s focus on developing “new rules and regulations,” rather than “on-site range improvements.”)
During her tenure on the court, O’Connor was, as Linda Greenhouse observed, Rehnquist’s “loyal ally” “in the court’s continuing reappraisal of the relationship between the states and the federal government.” That “reappraisal” began in 1992, when O’Connor authored the court’s opinion in New York v. United States, a challenge to a federal law that required states to arrange for the disposal of radioactive waste generated within their borders or take responsibility for the waste. New York argued that the law violated the 10th Amendment, which reserves for the states all of the powers that the Constitution does not specifically give to the federal government.
By a vote of 6-3, the court agreed that Congress cannot require the states to take responsibility for the waste. Although “Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste within their borders,” O’Connor explained, the Constitution does not give Congress the power to “simply compel the states to do so.” Indeed, O’Connor continued, requiring the states to take action would reduce the accountability of both federal officials – who are responsible for the obligation but would not face any political fallout for doing so – and state officials, who would face political repercussions even though they had no role in creating the obligation.
O’Connor later provided the key vote in two more important federalism cases. In 1995, she joined Rehnquist’s 5-4 decision in United States v. Lopez striking down a federal law that made it a crime to have a gun within 1,000 feet of a school. The ruling was the first time in nearly six decades that the court invalidated a federal law on the ground that it exceeded Congress’ powers under the commerce clause.
And five years later, in United States v. Morrison, O’Connor joined Rehnquist’s 5-4 decision striking down the federal Violence Against Women Act, which allowed private lawsuits for gender-based violent crimes.
A “common sense” view of money in politics
O’Connor’s stint as a legislator also may have influenced her decision in the 2003 campaign-finance case McConnell v. Federal Election Commission, a challenge to the constitutionality of the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act. O’Connor co-authored an opinion with Stevens that largely upheld two titles of the act, including a provision that limited campaign spending by corporations and unions.
O’Connor and Stevens pushed back against the suggestion, made by Kennedy, that Congress should be able to regulate only the kind of quid pro quo corruption that arises from direct contributions or coordinated expenditures. Kennedy, O’Connor and Stevens stressed, would not allow Congress to regulate any other spending or contribution “regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence.” “This crabbed view of corruption,” O’Connor and Stevens concluded, “ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.”
Just seven years later, Kennedy’s view would prevail. In Citizens United v. Federal Election Commission, the court overruled McConnell (as well as a 1990 campaign-finance decision, Austin v. Michigan Chamber of Commerce) and struck down the federal ban on political spending by corporations and unions. Independent expenditures by outside groups like corporations and unions, Kennedy explained, “do not give rise to corruption or the appearance of corruption.”
Second thoughts on Bush v. Gore
The normally disciplined O’Connor had a momentary lapse during an election-night party in 2000 that led to public attention and criticism after the Supreme Court became involved in a post-election dispute. When the networks initially called Florida for Democratic presidential candidate Al Gore, O’Connor reportedly declared that “this is terrible” and walked away. Her husband told party guests that she was upset because she wanted to step down so that the couple could return to Arizona, but she wouldn’t be able to do that with a Democratic president in office.
In their unsigned opinion in Bush v. Gore, the justices stopped the manual recount of ballots in Florida, over a month after the election. The court divided along ideological lines, with five conservative justices (including O’Connor) voting to halt the recount, which settled the election in favor of George W. Bush.
In a 2013 interview with the editorial board of the Chicago Tribune (seven years after she left the court), O’Connor suggested that the justices should have declined to intervene. Observing that the dispute “stirred up the public” and “gave the court a less-than-perfect reputation,” she said that “[m]aybe the court should have said, ‘We’re not going to take it, goodbye.’”
A landmark ruling on affirmative action
With the possible exception of the joint opinion in Casey, O’Connor’s signature achievement as a justice was probably her landmark opinion that retained affirmative action in higher education – if only temporarily and in a limited form. In 2003, she wrote for a divided court in Grutter v. Bollinger, upholding the University of Michigan Law School’s consideration of race in its admissions process. In an opinion that was joined by Stevens, Souter, Ginsburg and Justice Stephen Breyer, O’Connor explained that having a diverse student body creates educational benefits and is the kind of essential interest that can justify a university’s consideration of race. The law school’s admissions process, O’Connor added, merely “considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”
O’Connor, however, reached a different result in a case – decided on the same day – involving the University of Michigan’s undergraduate admissions policy. In that case, Gratz v. Bollinger, O’Connor joined Rehnquist’s majority opinion striking down the policy, and in a concurring opinion, she explained how it differed from Grutter. The undergraduate policy, unlike the law school’s, did “not provide for a meaningful individualized review” of each applicant but instead gave each minority applicant “the same, automatic 20-point bonus, without consideration of the particular background, experiences, or qualities of each individual applicant,” O’Connor wrote.
Even Grutter itself was not an unmitigated endorsement of individualized and “holistic” race-conscious admissions. Rather, O’Connor emphasized that the use of race in higher education should not continue indefinitely. Because the 14th Amendment to the Constitution, which prohibits states from denying “equal protection of the laws,” was intended to “do away with all governmentally imposed discrimination based on race,” she reasoned, race-conscious policies like the law school’s “must be limited in time.” O’Connor observed that it had been 25 years since the court first upheld a race-based admissions policy in University of California Board of Regents v. Bakke. During that time, she noted, “the number of minimum applicants with high grades and test scores has indeed increased.” Therefore, O’Connor made clear, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Less than 25 years later, the court effectively ended the use of race in college admissions. In a decision by Chief Justice John Roberts, the court ruled that the race-conscious admissions programs used by the University of North Carolina and Harvard College violate the 14th Amendment.
Although the court did not explicitly overrule O’Connor’s decision in Grutter, it made clear that programs similar to North Carolina and Harvard’s also would not survive. The “core purpose” of the 14th Amendment’s equal protection clause, Roberts explained, is to abolish “all governmentally imposed discrimination based on race.” So although the court’s ruling did not prohibit universities from ever considering the role that race has played in a particular applicant’s life or the effect that it will have on that specific applicant’s contribution to the university, the admissions policies used by UNC and Harvard did not pass muster. Those programs, Roberts stressed, have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”
A valued colleague at the court
In a 2018 response to O’Connor’s announcement that she had been diagnosed with dementia, Ginsburg emphasized that O’Connor had “done more to promote collegiality among the Court’s members … than any other Justice, past or present.”
In an interview with Joan Biskupic, the author of an O’Connor biography, Justice Clarence Thomas elaborated on Ginsburg’s point, telling Biskupic that (among other things) O’Connor was responsible for the justices’ practice of having lunch together after oral arguments. Thomas tried to decline the invitations from O’Connor. “I was not inclined to do so. I was really tired. I wanted to get my work done. We had mail piled up. I wanted to spend time with my law clerks. But she kept insisting.” As a result, Thomas explained, he joined the group, as did Ginsburg and Breyer after him. “Now you have a group of people who really enjoy each other’s company. And I think it’s because of Justice O’Connor’s insistence.”
Although the two had relatively little in common beyond their gender, O’Connor welcomed the arrival of Ginsburg, the second woman on the court, when she was confirmed in 1993. Ginsburg told Biskupic that she went to O’Connor when Rehnquist gave her a tough first assignment – writing the opinion for a complex pension case – rather than the straightforward unanimous opinion that new justices traditionally receive as their first task. O’Connor’s response, Ginsburg said, was no-nonsense: “Ruth, you just do it, and” send your draft out to the rest of the court “before he makes the next set of assignments.” When Ginsburg later announced the opinion from the bench, she told an audience in 2015, O’Connor sent her a note praising the opinion.
Family responsibilities lead to retirement announcement
In the spring of 2005, O’Connor authored yet another 5-4 ruling, in a case brought by an Alabama physical education teacher and basketball coach who alleged that the school system had retaliated against him when he complained about unequal treatment of the girls’ basketball team. The lower courts dismissed the lawsuit, holding that the right to sue created by federal laws prohibiting gender discrimination in schools that receive federal funding does not allow private lawsuits complaining about retaliation. The Supreme Court reinstated the teacher’s case, explaining that retaliating against someone who has complained about gender discrimination is “another form of intentional sex discrimination encompassed by” the law’s private cause of action.
O’Connor’s opinion in Jackson v. Birmingham Board of Education would be one of her final 5-4 decisions. In a letter to President George W. Bush on July 1, 2005, O’Connor announced her decision to retire “effective upon the nomination and confirmation of my successor.” Describing it as “a great privilege” to have served as a justice, O’Connor wrote that she would leave “with enormous respect for the integrity of the Court and its role under our Constitutional structure.”
O’Connor’s announcement came, Biskupic reported in her biography of O’Connor, as a surprise to at least some of the justice’s colleagues. O’Connor was then just 75 years old – practically middle-aged by Supreme Court standards. But John O’Connor had been diagnosed with Alzheimer’s disease years before. When John’s condition worsened, Sandra said later, she “often took him to the court with me because he could not be left alone.” And after John’s condition further deteriorated, Evan Thomas reported, Sandra told a friend that “John gave up his position in Phoenix to come with me, so now I am giving up my job to take care of him.”
In June 2005, Jan Crawford reported for ABC News, Sandra Day O’Connor had met with Rehnquist, then 80, who had missed four months of oral arguments while being treated for thyroid cancer. O’Connor knew that Rehnquist did not want the court to have two vacancies, so she expected that he would retire soon, and she planned to serve for one more term before announcing her retirement. Rehnquist instead told O’Connor that he planned to stay for one more year, Crawford related, prompting her to submit her own retirement letter.
Bush quickly nominated John Roberts, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed O’Connor. But when Rehnquist died on Sept. 3, 2005, Bush opted to nominate Roberts to replace Rehnquist instead.
On Oct. 3, Bush nominated his White House counsel, Harriet Miers, to replace O’Connor. Miers withdrew her nomination less than a month later, leading Bush to nominate Samuel Alito, a judge on the U.S. Court of Appeals for the 3rd Circuit. O’Connor remained on the court until Alito was confirmed at the end of January 2006.
Although O’Connor had stepped down from the court to take care of her husband, it was, as Evan Thomas observed, “already too late.” By July 2006, John moved into a care facility for Alzheimer’s patients in Arizona. In 2007, an Arizona TV station reported that John had formed a romantic relationship with another patient at the facility where he lived. The O’Connors’ son Scott told reporters that Sandra was “thrilled that Dad was relaxed and happy and comfortable living here and wasn’t complaining.” John O’Connor died in November 2009.
That same year, O’Connor lent her voice and star power to efforts to combat Alzheimer’s disease more broadly. She served as an honorary chair of a nonpartisan panel that created a plan to fight Alzheimer’s, which the report described as a “grave and growing challenge to our nation.” O’Connor also testified before Congress, warning that “in the next 20 years, the numbers of people with Alzheimer’s will increase more than 50%. And without some basic action in this country, ultimately one in two people over 80 are going to have this disease. That’s too many.” She was diagnosed with dementia just a few years later.
During the early years of her retirement, O’Connor was characteristically active. Describing herself as “distressed” by “persistent efforts in some states to politicize the bench and the role of our judges,” O’Connor spearheaded a plan, released in 2014, for the selection and retention of state judges. The plan sought to replace partisan judicial elections with a four-step process that, O’Connor wrote, “we believe best balances the dual goals of impartiality and accountability.”
O’Connor’s other major retirement project was iCivics, a program to support civics education by providing free interactive lesson plans and video games. In a 2012 interview with The Washington Post, O’Connor explained that “[i]f we don’t take every generation of young people and make sure they understand that they are an essential part of government, we won’t survive. We don’t teach our own kids. It’s insane.” According to the iCivics website, O’Connor considered the program – which reaches over 5 million students in all 50 states – “to be her most important work and greatest legacy.”
As a retired justice, O’Connor also sat as a judge on federal courts of appeals all over the country approximately 180 times, writing 33 decisions. As Stephen Wermiel noted on SCOTUSblog, six of those decisions were appealed to the Supreme Court, which declined to review them. O’Connor, Wermiel observed, appeared to have stopped sitting on appellate panels after June 2014.
The court shifts to the right
With O’Connor’s retirement and the confirmation of the more conservative Alito, the court quickly shifted to the right. In 2000, in Stenberg v. Carhart, O’Connor had provided the key vote to reaffirm Casey and strike down Nebraska’s ban on so-called “partial-birth” abortions, a procedure commonly used in the second trimester of pregnancy. But in 2007, only a year after Alito took the bench, he joined the court’s four other conservatives to uphold a federal ban on partial-birth abortions in Gonzalez v. Carhart. In her dissent in Gonzales, Ginsburg – joined by the remaining members of the Stenberg majority – argued that the court’s ruling “refuses to take Casey and Stenberg seriously.”
Two months later, the court began carving a new path on the issue of racial diversity in education. In Parents Involved in Community Schools v. Seattle School District No. 1, the court held that public school systems could not use race as a factor to assign students to a school as part of their efforts to promote integration. In his opinion for the court, Chief Justice John Roberts famously concluded that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In a part of his dissent from the bench that did not appear in his written opinion, Breyer alluded to the impact of Alito and Roberts. “It is not often in the law that so few have so quickly changed so much,” he said.
At a 2009 event, O’Connor faced questions about the court’s rightward shift, away from decisions in which she had played a pivotal role. Her response was pragmatic – but, for O’Connor, also telling. She answered, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think ‘Oh, dear.’ But life goes on. It’s not always positive.”
Thirteen years later, the sea change on the court that Reagan and his supporters had envisioned finally came to fruition. Reagan appointees O’Connor and Kennedy, along with George H.W. Bush appointee Souter, had voted to reaffirm Roe. But in Dobbs, three justices appointed by President Donald Trump – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – joined Thomas and Alito in voting to overrule Roe and Casey. One year later, those same justices, along with Roberts, would effectively overturn Grutter.
With her own diagnosis, O’Connor exits public life
O’Connor had no public response to the Dobbs decision in June 2022. Four years earlier, O’Connor had announced that she had been diagnosed with dementia, “probably Alzheimer’s disease.” Therefore, the then-88-year-old O’Connor explained, she would no longer “participate in public life.”
O’Connor used her final communication with the public to promote iCivics, writing that it was “time for nationwide civics education initiative.”
O’Connor explained that she would “continue living in Phoenix, Arizona, surrounded by dear friends and family.” She acknowledged that “the final chapter of my life with dementia may be trying,” but she emphasized that “nothing has diminished my gratitude and deep appreciation for the countless blessings in my life.” “As a young cowgirl from the Arizona desert, I never could have imagined that one day I would become the first woman justice on the U.S. Supreme Court.”
O’Connor is survived by her three sons – Scott, Brian, and Jay – and six grandchildren, as well as her brother, Alan Day.