Panel Considers Legacy of Justice Sandra Day O'Connor

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The Program in Public Law hosted a panel discussion on Justice O’Connor’s legacy on the Supreme Court on August 29th as its inaugural event of the academic year. Moderated by Professor Neil Siegel, panelists examined Justice O’Connor’s record in such areas as abortion, affirmative action, federalism, gender, religion, and how international law is used by the Court.

There was general agreement that the first woman appointed to the Supreme Court would be remembered for the pragmatism and civil tone of her jurisprudence, as well as for her remarkable personal story. The latter informed Justice O’Connor’s career on the Court, noted Douglas B. Maggs Professor of Law Walter Dellinger.

“She had a different set of experiences. She grew up on a ranch, where she was one of the only women. She didn’t get socialized the way women were supposed to be socialized. When she went off to college, she was treated as an ‘other,’ and that gave her a sensitivity and understanding about the role of outsiders. She inherited from her father the deep, western, frontier hostility to the overweaning national government.”

This was evident in her approach to cases involving religion, Dellinger went on, an area which he said Justice O’Connor got “exactly right.”

“She believed in the very central role of the private, individual conscience and choice about religion. To the extent that the government supplies resources to individuals, she believed that individuals could make their own choices to use those resources in a religious way. She also believed in ‘robust private choice’ in the sense that government had no business making its own religious decisions and thereby influencing individuals.”

Dellinger quoted Justice O’Connor’s dissent in Van Orden v. Perry, a recent challenge to a Ten Commandments display on the grounds of the Texas legislature: “ ‘When one associates one set of religious beliefs with the state and identifies non-adherents as outsiders, it encroaches upon the individual decision about whether and how to worship. It makes, in a sense, religious strangers out of some persons.’”

Alston & Bird Professor of Law Erwin Chemerinsky took issue with what he called the conventional wisdom that Justice O’Connor decided cases very narrowly, based on their individual facts and context, lacking any overarching principle.

“In all the controversial areas of constitutional law, she came on to the court with a principle that she believed in,” he said. “It was a principle more conservative than the Court was then following, and slowly over the time that she was on the Court, the Court moved in her direction, so that her principle then became the test applied by the Court.”

Reviewing Justice O’Connor’s abortion decisions, he observed that she rejected the prevailing “strict scrutiny” test used to assess the constitutionality of abortion restrictions in her dissent in Akron Reproductive Health Center v. City of Akron in 1983, arguing that the government should be allowed to regulate abortion “unless the government places an undue burden on abortion rights.” She gained support from Justices Kennedy and Souter for her undue burden test in Planned Parenthood v. Casey in 1992, and in Stenberg v. Carhart in 2000, from a majority who ruled 5-4 that Nebraska’s law restricting so-called partial birth abortions were unconstitutional because it was an impermissible, undue burden on the right. Over time, she prevailed in a similar manner with her approach to affirmative action, Chemerinsky pointed out.

Addressing Justice O’Connor’s jurisprudence in the area of federalism, UNC Law Professor Michael Gerhardt said the hallmarks of her tenure were “a preference for balancing and incrementalism and a respect for precedent,” as well as a streak of libertarianism.

“Her decisions reflect her background in state government, her pragmatism as a state official and as a judge. She has a great respect for protecting state sovereignty at the expense of an overreaching federal government,” said Gerhardt.

Justice O’Connor did not take her seat with a well-formed jurisprudence in the area of sex-discrimination, noted Dean and A. Kenneth Pye Professor of Law Katharine Bartlett, noting that many of her early decisions followed the “tracks” of her future colleague, Ruth Bader Ginsburg, who was a pioneering litigator in the area. On occasion Justice O’Connor departed from the conventional jurisprudence, however, as she did in 1994’s J.E.B. v. Alabama, said Bartlett. While concurring with the majority opinion that the state’s use of peremptory challenges to exclude jurors in a child support case solely on the basis of gender was a violation of the equal protection clause of the 14 th Amendment, she expressly recognized that sex does make a difference in the sorts of things that come before juries: Studies show that women are more likely than men to be tough on child support defendants, for example.

“She votes with the majority, but it is with some considerable hesitation, and a recognition–not seen by the other justices–that there are actual differences that might matter for the question at issue.”

Richard and Marcy Horvitz Professor of Law Curtis Bradley cited Justice O’Connor’s speeches as well as her judgments in calling her “an internationalist” in her approach to the use of foreign and international materials in U.S. courts.

“She was quite respectful and interested in international and foreign materials and receptive to judicial use of these materials, including in the constitutional law area. At the same time … it would be fair to describe her as moderate and pragmatic in the way these materials would get used.” She emphasized in her speeches that “in most instances would not be binding and would ultimately be filtered through American judicial discretion.”

Last term’s juvenile death penalty decision of Roper v. Simmons was a good indication of this “moderate internationalism,” Bradley continued. Joining Justice Scalia in dissent, she specifically stated that she disagreed with his opinion that foreign judgments and opinions should never be used. “She said we should look abroad–we must find a national consensus, but use foreign judgments as supplements.”

Sam Sankar, a former clerk to Justice O’Connor, spoke of her “human” approach to cases.

“She made her decisions in a lot of ways the way regular people make their decisions–different problems call for different approaches.” And although she was a crucial swing vote in many cases, Sankar noted that she did not relish that role. “Justice O’Connor’s favorite outcome was a 9-0 decision. Five votes was not a victory for her, it was a cause for sadness.”

Sankar closed by noting, as did Dellinger, the power of Justice O’Connor’s personal story–from her ranch upbringing, to the hardships she faced as a woman lawyer of her generation, to elected official, to the first woman on the Supreme Court.

“One of the most lasting contributions of her career on the bench is this life story that embodies the American dream of self discovery and self transformation–as somebody who has served the public without having really sought out the power to do so. In a lot of ways, she is the right sort of person to give this sort of power to; she’s somebody who didn’t seek it–didn’t want it–but was ready to use it when her country called.”

View the webcast of the panel discussion.