30 years ago last week Justice Sandra Day O’Connor was sworn in as the first female justice on the US Supreme Court. During the 1980 campaign, Ronald Reagan made a promise to nominate the first woman to high court. He got that chance shortly after taking office when Justice Potter Stewart left the bench. A review of O’Connor’s career reveals why the judicial nominee process has become so heated and why new laws had to pass what I call ‘the O’Connor test.’
Justice O’Connor was a former state legislator and judge from Arizona. During her interview with Reagan, she told him that she didn’t remember whether she had voted to repeal Arizona’s law banning abortion. In reality, O’Connor had voted twice on abortion – once for repeal of the state’s law criminalizing abortion and once against a prohibition on abortions in some Arizona hospitals. Reagan wrote in his diary on July 6, 1981, “Called Judge O’Connor and told her she was my nominee for supreme court. Already the flak is starting and from my own supporters. Right to Life people say she is pro abortion. She says abortion is personally repugnant to her. I think she’ll make a good justice.”
In the early days of her tenure, O’Connor did vote to uphold restrictions on abortion and against an expansive view of Roe v. Wade – in City of Akron v. Akron Center for Reproductive Health in 1983 and in Thornburgh v. American College of Obstetricians and Gynecologists in 1986, with impressive dissents against invalidating common sense regulations. That started to change in 1989 in Webster v. Reproductive Health Services when she sided with the majority to uphold a Missouri statute that prohibited use of public facilities or personnel to perform abortions and required ultrasound tests to determine viability after 20 weeks, but refused to overturn Roe. The following year O’Connor solidified her role as the court’s abortion swing vote in Hodgson v. Minnesota where she decided to strike down Minnesota’s law that required two parent notification before a minor could get an abortion, but upheld it when there was a judicial bypass option in place.
But the real kicker was in 1992 when she and Justice David Souter heavily lobbied Justice Anthony Kennedy who had voted in 1989 to overturn Roe to change his vote. In his book The Nine, Jeffery Toobin chronicles the highly unusual effort by these two justices to convince Kennedy that the nation simply wasn’t ready to overturn Roe. Their efforts paid off and the Supreme Court mandate that abortion cannot be outlawed remained. Over 20 million more abortions have happened in the 19 years since.
O’Connor didn’t stop there. In 2000 she sided with the majority in Stenberg v. Carhart to approve a right to partial-birth abortion. She did this despite knowing full well that this was the destruction of a perfectly normal unborn human being. It wasn’t until O’Connor was replaced by Justice Alito that we saw the tide turn and a more faithful holding of the constitution, at least as it comes to life issues, returned to the court. In 2007 in Gonzales v. Carhart, the new majority with Alito upheld the federal PBA law and virtually overturned Stenberg.
A few years ago I had the privilege of hearing Justice Scalia speak to a group of students at the Supreme Court. It was shortly after the Roberts and Alito confirmations, and he was asked why the nomination process for Supreme Court Justices had become so politicized. He replied that it was simply because over the past 50 years the court had politicized the law. He went on to say that when the court decided to make law instead of interpret it, it was inevitable that the nomination process would become political.
In many ways, Justice O’Connor’s decisions on abortion over her 24 years on the court only served to further politicize that body and result in the countless deaths of others. Those abortion laws that met her personal test, whatever that was, was allowed to stand. Cross the invisible line, and the law would get tossed on its ear.
No, Sandra Day O’Connor didn’t rule from the bench; she legislated from it. That is the one legacy of Justice O’Connor. How ironic it is that a Justice who cared so much about judicial independence contributed so much to the politicization of the Court.