Remembering Sandra Day O'Connor

A partisan Republican directly responsible for some of modern America's greatest injustices, universally portrayed as a politically independent moderate by media elites who aren't

Sandra Day O’Connor was the first woman to serve on the United States Supreme Court, where she used her position as one of the most powerful people in the world to rule against racial minorities at nearly every opportunity, then timed her retirement so that her successor would be chosen by a Republican president — a president, George W. Bush, who she put in office via Bush v. Gore after she spouted unhinged conspiracy theories about nonexistent voter fraud in the 2000 election — thus paving the way for the Iraq war and the ascension of Samual Alito to the Supreme Court, where he would go on to write the decision overturning Roe v. Wade.

You won’t read much about that Sandra Day O’Connor in the obituaries and remembrances that will be published over the next several days. You’ll mostly read about Sandra Day O’Connor’s “independence” and that she was a “moderate” who “looked for middle ground” and was thoroughly unbiased and apolitical. As the Washington Post put it today: “O’Connor arrived at the court from Arizona with no overarching philosophy or agenda, no affiliation with a movement or cause … Unlike [Justice Thurgood] Marshall and [Justice Ruth Bader] Ginsburg, Justice O’Connor was not an ‘activist’ or an advocate before her elevation.”

No affiliation? Not an activist or advocate? In fact, O’Connor had worked on Barry Goldwater’s hard-right presidential campaign and served in the Arizona state Senate, where her fellow Republicans chose her to lead them.

In a 1998 analysis published in the Los Angeles Times, constitutional law professor Herman Schwartz wrote:

To many academics and journalists, O’Connor is a moderate conservative, a “centrist.” […]

That may be true on some issues, but not when the civil rights of racial minorities are at issue. […]

She has, in fact, been the court’s leader in its assault on racially oriented affirmative action. Her underlying premise in these cases seems to be that a temporary preference designed to help a relative handful of racial minorities overcome the damage inflicted by centuries of brutal subjugation and discrimination is to be treated as if it were just as immoral as the laws that perpetrated that brutalization, a position openly espoused by Justice Clarence Thomas.

[…]

O’Connor has voted against the minority litigant in all but two of the 41 close cases involving race.

These cases have dealt with almost every legal issue related to racial justice, including voting rights, employment, school desegregation, affirmative action, the scope of enforcement for federal civil rights statutes, jury selection and capital punishment. In these cases, she often has ignored or repudiated her own prior rulings against civil rights claimants, racial and otherwise, on access to the courts and on federal power.

And then there’s the 2000 election, which Sandra Day O’Connor handed to George W. Bush via her vote in Bush v. Gore.

From Jeffrey Toobin’s¹ book Too Close to Call: The Thirty-Six-Day Battle to Decide the 2000 Election:

On the previous Monday, December 4, the day of the Supreme Court’s first opinion on the election, O'Connor and her husband had attended a party for about thirty people at the home of a wealthy couple named Lee and Julie Folger. When the subject of the election controversy came up, Justice O’Connor was livid. “You just don’t know what those Gore people have been doing,” she said. “They went into a nursing home and registered people that they shouldn’t have. It was outrageous.” It was unclear where the justice had picked up this unproved accusation, which had circulated only in the more eccentric right-wing outlets, but O’Connor recounted the story with fervor.

If that sounds like the kind of bias that should have led O’Connor to recuse, here’s where I will remind you that the Supreme Court does not have binding and enforceable recusal rules, or really ethics rules of any kind.

More from Too Close to Call:

Similarly, on election night Justice O’Connor and her husband had attended a party at the home of Mary Ann Stoessel, the widow of a prominent diplomat. When the states looked like they were falling into place for Gore, Justice O’Connor said, “This is terrible,” and she hastened away from the television, which was located in a basement den. Her husband, John, explained her reaction to the partygoers, saying, “She’s very disappointed because she was hoping to retire”-that is, with a Republican president to appoint her successor.

So O’Connor was running around making unhinged partisan accusations about Gore, while her husband was fretting that a Gore win would delay O’Connor’s planned retirement, all while the Supreme Court on which she sat was about to decide a case that would determine the outcome of the election. Sure sounds like a judge with a direct personal interest in the outcome of the Bush v. Gore case! It’s probably a coincidence, though, that O’Connor just happened to cast the deciding vote to hand Bush the White House — after she wrote a memo to her colleagues arguing for the outcome before oral arguments even took place:

Justice Sandra Day O’Connor provided the early framework that steered the outcome in the dispute over the 2000 presidential election and ensured George W. Bush would win the White House over Al Gore, Supreme Court documents released on Tuesday show.

The strong hand of O’Connor, who was at the ideological center of the court in this era, is not wholly surprising. O’Connor was also known for trying to get out ahead of deliberations, and her four-page memo was circulated to colleagues even before oral arguments. Her move may have guaranteed that she and Kennedy had the greatest influence on the final “per curiam” opinion that spoke for a five-justice majority.

That final 5-4 Bush v. Gore decision stopped county recounts for Florida’s decisive presidential electors and gave then-Texas Gov. Bush the victory over then-Vice President Gore.

Years later, comfortably retired with her successor chosen by her preferred political party, O’Connor acknowledged that in Bush v Gore, “probably the Supreme Court added to the problem at the end of the day.” Yeah, probably!

So how does Sandra Day O’Connor end up universally portrayed by the elite media as a politically independent moderate? Well, for one thing, there’s very little a Republican can do substantively to disqualify themselves from the moderate label. As long as they don’t use racial slurs in public, they can work tirelessly to limit the voting rights of Black people. As long as they don’t give rabid speeches threatening to jail Democrats for the crime of simply being Democrats, they can act in ruthlessly partisan ways, undermining democracy for the sake of advancing their own preferred political outcomes. They can do all this and more, while enjoying a media-bestowed reputation for moderate centrism — in large part because pretending that hard-right Republicans are actually moderate centrists is how media elites who identify with them justify their own self-conception as politically neutral moderates.

Anyway, condolences to her family.

1. I know, I know. Don’t buy the book! Here’s a screenshot of these passages, from Jay Willis.