Sandra Day O’Connor’s career, distinguished as it was, marks the last stop on a road no longer taken.
Sandra Day O’Connor, who has died at 93, will be best remembered as the first woman on the U.S. Supreme Court. That is enough by itself to secure her place in history. Her impressive and inspiring life story shows how far she came, from growing up on a cattle ranch without running water or electricity to entering Stanford at age 16 to rising in the ranks of a legal profession that was mostly closed to women in her formative years. Upon graduating law school, she couldn’t get a legal job, but she did get four marriage proposals during law school — one of them from William Rehnquist, with whom she would ultimately serve on the Court for 24 years. In the end, it was devotion to her own marriage that led to her retirement from the Court to care for her husband, who was suffering from Alzheimer’s. Even O’Connor’s fiercest critics as a judge scarcely had a bad word to say about her personally.
On the other hand, retrospectives on O’Connor’s career will doubtless focus on how she disappointed conservatives (especially in Planned Parenthood v. Casey, which gave Roe v. Wade three decades of life it didn’t deserve) and infuriated liberals (especially in Bush v. Gore). But understanding her jurisprudence requires understanding something else about O’Connor: She was the last politician confirmed to the Court, and the last to serve on its bench. O’Connor was an elected member of the Arizona Senate from 1969 through 1975.
From the Court’s founding in 1789 until O’Connor’s retirement in 2005, there was always at least one justice who had been an elected official, especially in the chief justiceship. William Howard Taft had been the president, John Jay had served as president of the Continental Congress, and Charles Evans Hughes had narrowly lost a presidential election. Salmon P. Chase and Earl Warren were serious presidential candidates and major national party figures — Chase, as much as anyone, could claim to have been the founder of the Republican Party. Hugo Black was one of several justices who had been a senator. O’Connor was the last. There are those (such as Benjamin Barton) who argue that the Court lost something valuable when we started treating it more narrowly as a secular priesthood of appellate lawyers and professors rather than political figures, although there is no denying that the move away from politicians in robes has contributed to the increased intellectual rigor of the Court’s work.
Understanding that O’Connor was a politician as much as a judge makes her decisions easier to understand: She fundamentally saw her role more in terms of moderation, justice, fairness, and consensus rather than the crisp clarity of textual fidelity. That is not to denigrate her abilities as a lawyer: O’Connor was a fine legal writer who could lay down clear rules and justify them. She wasn’t dumb like Harry Blackmun, sloppy like William O. Douglas, or overly self-impressed and pompous like Anthony Kennedy. But her tendency to bring the habits of a politician into her legal decisionmaking is why her approach to judging has gone out of fashion, and rightly so. In that sense, her career, distinguished as it was, marks the last stop on a road no longer taken. R.I.P.