When a Supreme Court justice, sitting or retired, dies, those who remain have a tradition of offering high praise and warm recollections about their departed colleague and friend. With Sandra Day O’Connor, who died at 93 on Friday, the tradition was on full display — with all nine current justices, plus three retired ones, writing statements about the towering figure who ended nearly 200 years of male supremacy on the nation’s highest court.
“Both because of her unique role and her many significant opinions, she will always be remembered as one of the most important justices in the history of our institution,” wrote Justice Samuel Alito, who replaced her in 2006. Neil Gorsuch noted how O’Connor “blazed a remarkable trail of firsts.” Brett Kavanaugh added that O’Connor “made equal justice under law a reality … for the millions of American women and girls who have followed her lead.” Amy Coney Barrett, meanwhile, hailed her as “a pivotal justice who has left her mark on American constitutional law.”
Their words ring hollow. All these justices, save Chief Justice John Roberts, jointly erased what for three decades was arguably O’Connor’s central contribution to American law: preserving the central holding of Roe v. Wade, that linchpin of women’s equality that stood for half a century — and which O’Connor, together with fellow Republican appointees Anthony Kennedy and David Souter, worked hard to salvage for future generations in the 1992 Planned Parenthood v. Casey decision. In more ways than one, Alito had made it his personal project to ensure O’Connor’s work in this realm would one day be overruled.
O’Connor, the Supreme Court’s last true politician, saw things differently. As the late cultural historian Linda Hirshman wrote in Sisters in Law, her account of the first and second woman to ever sit on the Supreme Court, O’Connor, who as an Arizona state legislator championed the Equal Rights Amendment and learned the ropes of compromise, was not about to set women back — or else let them move too fast. “She would never provide the crucial fifth vote to send women back to 1972,” Hirshman wrote. “But she would not let them move beyond the backlash that erupted after 1973 either.”
Lamenting the erasure of O’Connor’s legacy in the Dobbs ruling last year, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would go on to write in dissent that the trio O’Connor led “would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver.” That purity, which Donald Trump etched in stone with a helping hand from the Federalist Society, now rules the day.
Indeed, if there’s a present-day lesson from looking back at Sandra Day O’Connor’s life in the law, it is that they — by which I mean Republican presidents and politicians — don’t make Supreme Court justices like her anymore. Alito’s very ascension to her seat in 2006 came in a sort of twist of fate — if not a switch in time that all but doomed whatever the Supreme Court then stood for. There’s simply no telling what the nation would look like today had George W. Bush not withdrawn the nomination of O’Connor’s original replacement, Harriet Miers — whom anti-abortion advocates and many in Bush’s own orbit opposed with all their might. The Federalist Society’s Leonard Leo was ascendant at the time, and before long he’d shape the Supreme Court to his liking.
Of course, O’Connor herself helped set in motion this turn of events, including the Supreme Court’s own rightward lurch. In 2000, she was part of the five-justice bloc who ended the Florida recount that effectively handed the presidency to Bush. Yet even in that widely reviled decision she aimed for some kind of compromise — a limiting principle to keep the Supreme Court from veering off a cliff. In First, his intimate biography of O’Connor, journalist Evan Thomas uncovered that it was O’Connor who pushed for a semblance of middle ground. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the decision read.
That may have been O’Connor’s way of imploring: Let’s not do this ever again. But it could absolutely happen again. Thanks to the release of the late Justice John Paul Stevens’s private papers earlier this year, we now know that O’Connor’s influence in Bush v. Gore ran even deeper. She was an early believer in what years later morphed into the so-called “independent state legislature” theory. Her thinking behind this theory never made it into a published opinion, but Chief Justice William Rehnquist adopted much of what she wrote in private and put it in a concurring opinion, and his opinion would later take on a life of its own in the wake of the 2020 election. Thanks to these twists and turns, there’s nothing stopping the Supreme Court from refereeing yet another too-close-to-call presidential contest.
O’Connor was nothing if not practical, and that practicality often meant actual power. By one count, her vote was pivotal in 115 decisions where the justices were split 5-to-4. That meant that the law was “basically what Sandra Day O’Connor thought it should be,” as Linda Greenhouse summed up in her New York Times obituary for the justice.
But unlike Kennedy, the other perennial center of gravity after O’Connor left the bench, she was not someone to hem and haw in her rulings. “Sandra was more comfortable being the one who had to cast the deciding vote,” Ruth Bader Ginsburg once said. “Maybe she had more confidence in her judgment. Sandra could accept the role of being in the middle without excessive worrying.”
Along these lines, Heidi Bond, a former O’Connor clerk, recalled in an interview that the justice kept an embroidered cushion in her judicial chambers that reflected her decisiveness. “Maybe in error, but never in doubt,” the cushion read.
On a more personal level, there was a warm, caring dimension to TFWOTSC — The First Woman on the Supreme Court, as O’Connor reportedly referred to herself — that meant the world to Bond as she rebounded from an abusive clerkship with then–U.S. Circuit Judge Alex Kozinski (whom she accused of sexually harassing her at the height of the Me Too era). Bond told me she almost didn’t want to go to work at the Supreme Court “because I was so afraid of putting my life in the hands of another powerful person for another year.” Shortly after her arrival in 2007, she received a call from O’Connor that put her at ease: The justice wanted to know if Bond had someone to spend Thanksgiving with. “That level of care was not something I was used to at that point, and I so desperately needed it,” Bond said.
As the Supreme Court grapples with a self-inflicted crisis of confidence, numerous ethics scandals, and yet another term where the pragmatism O’Connor was known for is nowhere in sight, simply caring about its impact on others could be its saving grace. Yet that Supreme Court is long gone — and if the term now unfolding is any indication, the justices could well destabilize American law, society, and our institutions yet again.
In her own requiem for O’Connor, Elena Kagan alluded to that Supreme Court of yore — and how the first woman to wield actual power on it may well be the last. “What is striking to me now is how she used her influence — with extraordinary understanding of this Nation and its people; with appreciation of this Court’s necessary role, but also of its necessary limits; and with a will to promote balance and mutual respect in this too-often divided country,” Kagan wrote. “Justice O’Connor never stopped thinking and listening, learning and growing. She judged with wisdom. And her service left both this Court and this Nation better.”
That was then. If “no more Souters” was for a time a rallying cry for those who wished to see Roe dead and gone, it’s “no more O’Connors” for those who want to preserve the kind of Court that killed it.
