Commentary

Two Cheers for Sandra Day O’Connor

This article appeared in the Orange County Register on July 3, 2005.
Like the laws of motion, the response in Washington, D.C. to Sandra Day O’Connor’s retirement was utterly predictable: Conservatives lambasted her as a weak link in the Court’s conservative chain. Liberals on the other hand augured the coming fall of constitutional moderation. Within minutes of the retirement, former President Clinton’s acting-Solicitor General Walter Dellinger had taken to the air warning, ominously, that O’Connor, a “swing vote,” had been the last best hope for affirmative action, abortion, the environment, worker protection, you name it. After Sandra, the deluge.

Really? While it may be too early in the news cycle for some perspective, let’s all take a deep, cleansing breath. Conservatives most of all. It’s strange to see so much animosity on the right against the westerner that Ronald Reagan hand-picked to read John Winthrop’s “City on a Hill” oration at his state funeral. Yes, she was a “swing vote”; yes, she voted with the Court’s liberals some of the time. But that’s not the whole story: she was far more conservative, far more of a Reaganite, than received wisdom credits.

Consider this last term, her swan song. The Court had an opportunity to push beyond faltering precedents that impose modest limits on the federal government’s power. The case was Gonzales v. Raich, which challenged federal power to disrupt California law protecting sick, marijuana-using patients. The majority voted for the status quo — a win for big government. Where was O’Connor? In a lucid dissent, she stood up for aggressive constitutional checks on federal power — far more aggressive than any majority on the Court has been willing to accept for at least a century.

Or, let’s talk about private property. In Kelo v. City of New London, a majority of the Court voted for yet another expansion of the government’s power to confiscate the property of ordinary citizens — this time, holding local governments can grab private homes if they turn them over to rich developers who will make “better” use of the land (read generate more taxes). It’s a decision that not only strikes at the heart of property rights but falls most heavily on small and middle income homeowners. Where was O’Connor? Writing an eloquent dissent that argued for far more aggressive constitutional property protections than the Court has considered for decades.

And let’s not forget that O’Connor, while certainly more willing to uphold racial classifications than her fellow conservatives, has generally been suspicious of government efforts to peg individuals as part of a group. It is a legacy of her childhood, which she recounted in her autobiography, Lazy B: Growing up on a Cattle Ranch in the American Southwest. There, she writes, a John Ford childhood in the high desert along the New Mexico-Arizona border taught her the ultimate frontier value: the dignity of the individual.

O’Connor had a weak side, yes. She believes in what law professor Cass Sunstein calls “judicial minimalism” — voting narrowly and too cautiously on some controversial hot button questions, principally about the legitimacy of educational affirmative action and Roe v. Wade, despite strong constitutional arguments against both. That pragmatism watered down her effectiveness — clouding the clarity of the principles she generally defended. But she was a marked improvement over the Warren and Brennan-era justices — an independent judge with the right instincts if not always the best method. She voted in favor of localism, in favor of private property, in favor (mostly) of individual autonomy.

As the storm clouds gather, it is important to put Sandra Day O’Connor in perspective: We are on the verge of a battle for a Supreme Court nomination the likes of which the country hasn’t seen in decades. Liberals will be rushing to frame the debate as an epochal watershed moment, raising the temperature in Washington to ever more stratospheric heights. Her departure, they will say, opens the door for constitutional ruin — ignoring that a solid five votes (Stevens, Ginsburg, Breyer, Souter, and Kennedy) remain to support the shag carpet-era affirmative action precedents and invented abortion rights that liberals hold dear. Only another “moderate” like O’Connor, they say, will be acceptable.

In the fight for the next court seat, conservatives would do well to emphasize O’Connor’s strengths and her fundamentally conservative orientation, not harp on her weaknesses. If liberals demand another O’Connor, conservatives should insist they characterize her correctly: by ensuring her replacement puts at least as much value on limiting government, securing property rights, protecting individual liberty and promoting self-reliance as the cowgirl from the Gila River.

Mark Moller is a senior fellow in Constitutional Studies at the Cato Institute and the editor-in-chief of the Cato Supreme Court Review.