U.S. Supreme Court Justice Sandra Day O’Connor, a swing vote on abortion, dies
President Ronald Reagan and his Supreme Court justice nominee Sandra Day O’Connor on July 15, 1981. / Public Domain
CNA Newsroom, Dec 1, 2023 / 17:40 pm (CNA).
Former U.S. Supreme Court justice Sandra Day O’Connor, a swing vote who became a key part of the court’s longtime abortion-supporting majority, died Friday. She was 93 and had been suffering from dementia for several years.
Born Sandra Day in El Paso, Texas, in 1930, she grew up on a ranch in eastern Arizona. She was baptized an Episcopalian and later attended Episcopal churches as an adult.
She went to Stanford and Stanford Law School at a time when few women did either. As an undergraduate, she dated future Supreme Court colleague William Rehnquist and turned down an offer of marriage from him. Instead, she married another fellow law school student, John O’Connor.
As a female lawyer during the 1950s, she initially had trouble getting work but eventually joined a prosecutor’s office. She took five years off from practicing law after the birth of the second of her three children to tend to them.
In 1965 she joined the office of the Arizona attorney general, a Republican, after campaigning the year before for the Republican nominee for president, Barry Goldwater, a fellow Arizonan. In 1969 the governor appointed her to fill a vacancy in the Arizona Senate, where she rose to become majority leader. She left in 1974 for a state judgeship, eventually rising to the Arizona Court of Appeals, which is the second-highest court in the state.
O’Connor and abortion
President Ronald Reagan nominated O’Connor to the U.S. Supreme Court in July 1981, fulfilling a campaign promise to name the first woman to the nation’s highest court.
Reagan was unaware at the time of her selection that O’Connor as a Republican state senator in the 1970s supported abortion, according to conservative columnist Robert Novak’s 2007 autobiography “The Prince of Darkness.” When social conservatives erupted over the announcement, Reagan asked his attorney general to check on complaints about her.
The task went to a young aide, who called O’Connor and reported in a memo that she said she could not recall how she had voted on a 1970 bill seeking to legalize abortion in the state — even though she was a co-sponsor of it. (Before the Internet, it wasn’t easy to check such information.)
She also told the aide — Kenneth Starr, who later served as independent counsel investigating President Bill Clinton during the 1990s — that she “had never had any disputes or controversies” with the leader of the pro-life movement in Arizona, according to a memo Starr wrote. But the pro-life leader told Novak a couple of days later that she had frequently clashed with O’Connor, calling her “one of the most powerful pro-abortionists in the Senate.”
Even so, O’Connor’s nomination went forward and sailed through the U.S. Senate.
Once she joined the court, O’Connor’s position on abortion wasn’t immediately clear. In 1986, she voted with the minority in a 5-4 ruling that struck down a Pennsylvania law that required abortion providers to inform a woman seeking an abortion about fetal development and about “detrimental physical and psychological effects” and “particular medical risks” of an abortion.
O’Connor in her dissent called the court’s abortion decisions to that time “a major distortion in the Court’s constitutional jurisprudence” and said the majority’s decision in the case before it, Thornburgh v. American College of Obstetricians and Gynecologists, “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”
But her most memorable abortion vote came in the 1992 case Planned Parenthood v. Casey, in which she joined the 5-4 majority in upholding what the court called the “essential holding” of Roe v. Wade that abortion is a “fundamental right” before a fetus is capable of living outside the womb.
In Casey, O’Connor co-wrote the plurality opinion that continued a federal right to abortion for another 30 years.
‘Loosen up, Sandy’
O’Connor was a key player in other landmark decisions as well.
In 1986, she joined the majority in the 5-4 decision Bowers v. Hardwick, which upheld as constitutional a state statute in Georgia that criminalized sodomy. (The court overturned that ruling in 2003 in Lawrence v. Texas; O’Connor joined the 6-3 majority, though she made a distinction between the two cases because Texas’ law banned sodomy only between two members of the same sex, while Georgia’s statute banned sodomy generally.)
In 2003, O’Connor wrote the majority opinion in the 5-4 decision Grutter v. Bollinger, which upheld affirmative action based on race in public university admissions. (The U.S. Supreme Court overturned the Grutter decision in June 2023 in Students for Fair Admissions v. Harvard.)
In 2005, she sided with the 5-4 majority in McCreary County v. American Civil Liberties Union that found that displays of the Ten Commandments at two state courthouses in Kentucky violated the Constitution.
She is perhaps better remembered, though, for what happened during a social occasion several years after she joined the court.
In 1985, O’Connor went to a black-tie event in Washington where she was seated near John Riggins, a Washington Redskins star running back, who had drunk “a few beers” and two double scotches before knocking over and spilling four bottles of wine on the table.
O’Connor had previously said she had to leave early and was in the process of doing so when Riggins, trying to get her to stay, piped up: “Loosen up, Sandy baby.”
He then passed out.
O’Connor got a kick out of it and got big laughs when she made a reference to it at the beginning of a speech a few days later.
Retirement
O’Connor retired from the court in January 2006 at age 75 to spend time with her husband, who had been diagnosed with Alzheimer’s disease around the early 1990s. (He died in 2009.)
O’Connor was replaced by Samuel Alito, who has since become one of the most conservative justices and who wrote the majority decision in Jackson Women’s Health Center v. Dobbs, which last year overturned Roe v. Wade and Planned Parenthood v. Casey.
