December 5, 2023

Sandra Day O’Connor

“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…

“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.” SCOTUSblog

Both sides applaud O’Connor’s trailblazing career:

“Her approach was simple: Consider the question presented, assess the facts, apply the law and make a decision. She didn’t play philosopher-king but decided the cases before her… The use of traditional tools to reach the right legal conclusion was hardly revolutionary. And that was the point. She rejected the notion of a grand unified theory of constitutional law and instead practiced a kind of judicial humility that respected the institutions of government…

“That is why she became a video-game mogul after retiring from the court. Sensing a decline in civic literacy as school curriculums abandoned the topic, she dedicated herself to reinvigorating knowledge of constitutional structure and to sharing her love of American government with students. The result was iCivics, a digital platform providing interactive games and lesson plans designed to promote civic education and active citizenship… Sandra Day O’Connor wasn’t a crusader or a philosopher. She aspired to be a good judge and a loyal citizen. In succeeding, she has become a pioneer and a national treasure.”
Viet D. Dinh, Wall Street Journal

“Considered a minimalist, she worked to devise opinions that decided the case and usually little more. She was sometimes criticized for that approach. Justice Antonin Scalia made no secret of his frustration. When she refused to overturn Roe v. Wade, in the 1992 case Planned Parenthood v. Casey, he snarlingly referred to the opinion as a ‘jurisprudence of confusion.’ She was criticized by many academics for failing to articulate a grand vision of the law. What they missed was that this was her grand vision of the law — or at least of the Supreme Court…

“She believed that the most important decisions about how to govern the country belonged to the political branches and to state legislatures, not to a court sitting in Washington. Seeing the law through her eyes during the year I worked for her, I realized that she was not looking for a sweeping theory that would change the face of the law. She wanted to decide the case before her and provide a bit of guidance to the lower courts as necessary but leave the rest to the democratic process.”
Oona A. Hathaway, New York Times

Other opinions below.

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From the Right

From the Left

A libertarian's take

“In a series of rulings in the 1990s and early 2000s, O'Connor was a crucial figure in the Rehnquist Court's ‘federalism revolution,’ which did much to revive judicial enforcement of structural limits on federal government power, after a long period when judicial review in this field was extremely weak…

“Fittingly, in her last year on the Court—2005—O'Connor wrote forceful dissents in Gonzales v. Raich—(a terrible federalism decision holding that Congress' power to regulate interstate commerce authorizes a ban on the possession of marijuana that never crossed state lines or was sold in any commercial transaction)—and Kelo v. City of New London (a terrible property rights ruling in which a narrow 5-4 majority held that private ‘economic development’ qualifies as a ‘public use’ allowing the use of eminent domain)…  

“O'Connor's compelling dissent in Kelo helped break the seeming consensus in favor of a very broad definition of ‘public use’ and played an important role in generating the powerful reaction against the Court's decision by state courts and legislatures.”
Ilya Somin, Volokh Conspiracy

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