A Pragmatist of One

Ronald Reagan, after his election in 1980, found that he quickly needed to make peace with us liberal feminists. A ‘newly discovered’ gender gap in elections was demonstrating that women voters had preferred the Democratic incumbent, Jimmy Carter, by an 8% margin.

Nodding both to this fact and to his conservative activist base, Reagan nominated Arizona Court of Appeals Justice Sandra Day O’Connor to the Supreme Court. O’Connor was the first woman to become a Supreme Court Justice.

Feminist groups who wanted to — and continue to — despise Reagan on any number of issue positions ultimately found a secret friend on the court bench. O’Connor provided the essential swing vote when it counted on several social issues cases.

In Mississippi University for Women v. Hogan (1982), she voted that an otherwise qualified male applicant must be admitted to a state school’s nursing program. Her first opinion on the Court was undoubtedly influenced by the prior sex discrimination which she had personally experienced. Regardless of whom it is leveled against, sex discrimination was wrong.

Consequently, she was not as ‘conservative’ as several of those feminist groups had initially feared — and likewise, she was not as loyal as some of Reagan’s ‘new right’ supporters were hoping. O’Connor was, as most are, unable to please everybody.

Because Supreme Court appointments have power to uphold — or overturn — access to reproductive self-determination, O’Connor’s Court tenure was a mixed blessing for all sides.

Disregarding the conventional notion that justices share the abortion politics of their appointing president, O’Connor was the critical vote in 1992’s Planned Parenthood v. Casey.

Upholding some state-imposed restrictions on abortion access, her vote ultimately maintained that “the right of the woman to choose to have an abortion before viability” should be upheld. Casey overturned portions of Pennsylvania’s Abortion Control Act attacking Roe.

Twenty-seven years later, George W. Bush is attempting to bank on Reagan’s legacy — and appropriate it for his own means. This is despite the Cold War’s end, and also despite his lacking even half of the charismatic ‘Hollywood’ TV-friendly persona Reagan had. O’Connor herself also faces some challenges, after having long hung up her judicial robes.

The same independent streak which I and many other people praised in select contexts has actually created problems today.

You see, a Supreme Court Justice must have a discernible and consistent legal theory. It allows them to effectively make a distinctive legal mark in the world. Appointment to an office is not enough; it is how the appointment gets consistently utilized that is the real measure of effectiveness. Somebody who is very flexible in writing their case opinions certainly might also be a nice person. But they will not leave behind that critical judicial legacy to distinguish their tenure.

Elected officials can ‘flip-flop,’ because they are just one among many others. Plus, their delivered solutions to problems may merely be quick fixes in anticipation of the next election. However, Supreme Court life appointments necessitate providing substantive contributions. All of the justices’ duties include making very serious interpretations of the Constitution.

A judicial legacy strengthens the likelihood of a specific case’s continuing to be upheld in subsequent years. It also ensures the historical clout of the authoring judge.

Unlike an Earl Warren, whose legal philosophies were consistent (even if not visibly understood by Eisenhower), or a Thurgood Marshall, who was readily and easily recognized as a liberal at the time of his own Supreme Court appointment, O’Connor’s decisions have not left behind a distinctive judicial legacy. Such is the catch-22 of her being both a ‘swing vote’ and an appointment pioneer.

Being the first woman appointed by a conservative Republican president who was otherwise opposed to equity definitely provides cocktail trivia. But judicial opinions which shift in the wind cannot reveal much about O’Connor’s judicial character.