Thursday, December 7, 2023

Why I Loved Sandra Day O'Connor

Source: Annenberg Public Policy Center
We learned last week that she had passed away. We knew it was coming. We knew she was quite ill and that the Justice O'Connor we knew had already left us. But we are, nevertheless, newly aggrieved that she is gone.

I didn't know Justice O'Connor well on a personal or social level. But I did have the opportunity to meet her and to spend some time chatting informally several times. The first time was in February 1986 when she was escorting the Supreme Court Fellowship finalists, then a few times during my fellowship year, and once or twice again at some event at the Court or elsewhere.

Credit: Alan Day/Western Horseman
We usually just engaged in small talk. Nothing jurisprudential or otherwise profound, except for our shared, profound love of the Arizona desert. She would speak of her home in the Southwest and growing up on a cattle ranch--a real "cowgirl of the Arizona desert." I would talk of my two Army tours at Fort Huachuca, Arizona, and riding on post for hours every weekend--a wannabe cowboy. I confess feeling a bit special that she would remember me and our Arizona chats each time we met.

So yes, for that reason alone she has had a special place in my heart.
(A dear friend of mine who taught at the University of Arizona became close to her in her latter years on the bench and thereafter, and everything he told me about Justice O'Connor confirmed that my heart was in the right place.)

But let me speak as one who follows the Supreme Court, and who believes that the Court is at its best when it protects civil rights and liberties--limited only by legitimately overriding interests. I have certainly not always agreed with Justice O'Connor. Though she might well have had the better position on many issues.
[Yes, there's Bush v. Gore (2000), perhaps the most dishonest, unprincipled Court decision of the modern era--regardless of how one feels about the ultimate outcome. Her vote in the bare majority was inexcusable. Later in life, she seemed to recognize that.
N.B., many of the great Justices in Supreme Court history have likewise cast a deplorable vote or authored some dreadful majority opinion.]

Nevertheless, without surveying her entire body of judicial work, it would be accurate, albeit barely relevant, to say that I did agree with her on many of the most important issues of the day. Much much more important than that, however, I admired how she typically strove to strike a wise balance between the competing needs of liberty and order, as opposed to elevating some rigid ideologically-driven methodology for decision-making.

Here are just a few of Justice O'Connor's opinions that, in my view, show what a fine Justice she was:

Credit: Kevin Wolf/Invision/AP
Mississippi University for Women v. Hogan, 1982: O'Connor wrote the opinion for the 5-4 majority that the state nursing school's restriction to women was invalid sex discrimination. Rejecting the dissenters' insistence that the women-only institution was "discriminat[ing] invidiously against no one," she explained that the state was actually perpetuating "archaic and stereotypic notions" about the proper roles for men and women.

Planned Parenthood v. Casey, 1992: O'Connor co-authored a three-Justice plurality opinion to sustain a woman's right to choose. Articulating an "undue burden" standard to balance the "personal liberty" of deciding whether to carry a pregnancy to term against "the demands of organized society," she rejected the four dissenters' absurd argument that there could be no such constitutionally protected right to choose an abortion because, among other things, "the Constitution says absolutely nothing about it."
[For more on that preposterous argument, see The Leaked [Dobbs] Opinion--Constitutional Nonsense Revisited* (Part 1), May 7, 2022. Of course, Dobbs overruled O'Connor's balanced approach.]

Lawrence v. Texas, 2003: O'Connor joined the Court's 6-3 decision to invalidate Texas's law criminalizing "sodomy" engaged in by members of the same sex. She did so, in a separate concurring opinion, based on constitutional equal protection, arguing that mere "moral disapproval" does not "justify a law that discriminates among groups of persons"--notwithstanding the dissenters' reliance on "the moral opprobrium that has traditionally attached to homosexual conduct."

Grutter v. Bollinger, 2003: O'Connor authored the Court's 5-4 decision upholding the limited consideration of race to ensure the "compelling" benefits of diversity in education. But, while rejecting the dissenters' argument that racial preferences were necessarily prohibited by equal protection, she did insist that educational institutions must ensure "narrow tailoring," such that any "race-conscious admissions program [does] not unduly harm members of any racial group."
[Of course, as with her balanced approach on the right to choose in Casey, the Court recently overruled her approach to affirmative action, invalidating any consideration of race in education admissions, in Students for Fair Admissions v. Harvard (2023).]

Ewing v. California, 2003: O'Connor wrote a plurality opinion which, however, secured a majority of her colleagues for the proposition that the "cruel and unusual" prohibition of the 8th Amendment did forbid punishments that were grossly disproportionate. She rejected the view, repeated by a couple of Justices in several cases, that the Constitution prohibited only "horrid modes of punishment" such as "flaying alive, rending assunder with horses...maiming, mutilating and scourging to death." [Justice Scalia's reference to his opinion in Harmelin v. Michigan, (1991).] To O'Connor, the mere fact that the term "excessive" was not used to modify "punishments" in the 8th Amendment did not exclude the possibility that such a punishment could be "cruel and unusual."

Hamdi v. Rumsfeld, 2004: O'Connor authored the Court's opinion, holding that an American citizen imprisoned in this country as an "enemy combatant"--without charges or a hearing--does have a due process right to receive notice of the Government’s factual assertions and an opportunity to rebut them in a judicial proceeding. The dissenters argued that she was "transmogrifying the Great Writ." But she explained that, in the absence of a valid suspension of habeas corpus by Congress, "it would turn our system of checks and balances on its head" to deny a citizen the right to judicially challenge the basis for his detention government, "simply because the Executive opposes making available such a challenge."

To be sure, Justice O'Connor was not always in the majority. At least two of her dissenting opinions deserve mention as underscoring her wise sense of balance and care about preserving fundamental principles despite competing interests.

Atwater v. Lago Vista, 2001: In a case involving a seat belt violation, the majority held that the 4th Amendment permitted a warrantless arrest for any criminal offense, regardless of how minor, as well as a full custodial search and detention in a jail cell at the police precinct during "processing"--all incident to that arrest. O'Connor was appalled. Noting that the majority itself recognized that the arrest and detention of the driver--a mother with children in the back seat--was a "pointless indignity" serving no legitimate law enforcement interest, she found it incongruous that the majority could nevertheless adopt an unqualified bright line that rendered the "extraordinary intrusion" on a mere seat-belt violator to be constitutionally permissible. As she put it, "the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment" that prohibits searches and seizures that are unreasonable.

Employment Division of Oregon v. Smith, 1990: In a case involving the application of a criminal drug law against the use of peyote by members of a Native American church in an ancient religious ritual, the majority reversed the decision of Oregon's high court which had ruled that a religious exemption was constitutionally required. Writing for the majority to reject any such exemption, Justice Scalia declared that the Supreme Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law." In her separate concurring opinion--joined in most part by the dissenting Justices--O'Connor comprehensively detailed how Scalia's assertion was simply dishonest and "dramatically departs from well settled First Amendment jurisprudence."
As O'Connor showed, the Court had frequently repeated that only those laws that are "essential to accomplish an overriding governmental interest" could constitutionally burden religious free exercise. Indeed, despite the majority's mischaracterization of such a test as a "constitutional anomaly," she noted that it was actually the "constitutional norm" to protect fundamental rights and prohibit racial discrimination.
Source: Sandra Day O'Connor Institute
Beyond that, she took the majority to task for insisting that an unavoidable and acceptable consequence of democratic government was to "place at a relative disadvantage those religious practices that are not widely engaged in." Citing, among other decisions, Chief Justice Warren Burger's opinion for the Court in Wisconsin v. Yoder (1972), she felt compelled to remind the majority that, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups."
[I know I have spent more time on this case than others. But I find Scalia's majority opinion particularly galling in its dishonesty and callous disregard of a minority religion. For like reason, I find Justice O'Connor's separate opinion so imperative. Those who follow the Court's religious liberty jurisprudence know that the Court has done whatever it can to bypass the Smith decision. Several Justices have already made clear that the decision should be "reconsidered." It is almost certain that O'Connor's opinion will eventually be expressly vindicated by the Court.]

This has been a brief survey of some of the most significant and representative opinions of Justice Sandra Day O'Connor. Perhaps more than any other member of the Court over the last few generations, she has been a wise and candid balancer of the strong competing interests at issue in virtually all the cases that reach the Court. And unlike some of her colleagues who have seemed ideologically blind or otherwise uncompromising to disfavored or less-favored interests, or who avow fidelity to some politically induced and supposedly neutral interpretive methodology, she has been motivated by the practical realities and the real-world ramifications of her decisions. That is anathema to some Justices.

"Just apply the law" is a mantra that fails to recognize that there is almost always strong legal support for both sides in appeals at the Court. For Justice O'Connor, the actual consequences from embracing one legally supported position or the other was necessarily a foremost consideration. For that reason, her opinions made sense. Like the very best Justices in the Court's history, wisdom and decency and reality, as opposed to some cramped formalistic legalism, were the hallmarks of O'Connor's jurisprudence.