Sandra Day O’Connor: A Voice for Nonpartisanship on the Supreme Court

Journalists and historians frequently misidentify Justice Sandra Day O’Connor as a justice whose political ideology transformed throughout her legal career. Justice O’Connor, a strong advocate for apolitical jurisprudence, repeatedly fought to dismantle policies that discriminated on the basis of sex, shattering the glass ceiling in every position she occupied and paving the way for future female politicians and lawyers to pursue careers in a male-dominated field. Many argue that, when she was appointed to the Supreme Court in 1981 as the first female justice, she shifted from being a conservative to a moderate or even a liberal influence on the court. Particularly in the areas of women’s rights and reproductive rights, she more often sided with the liberals on the court than with her conservative colleagues. However, 1981 also signaled the beginning of a rampant increase in ideological polarization on the Court. O’Connor joined the Burger Court and found herself in the midst of a partisan revolution. While the increasing ideological polarization in the Supreme Court created the appearance of a shift in O’Connor’s political ideology from conservative to more moderate, O’Connor’s legal decisions remained consistently apolitical. Her commitment to nonpartisanship contributed to the preservation of reproductive rights in the United States.

Despite pervasive gender discrimination posing numerous obstacles throughout O’Connor’s legal career, the justice demolished every discriminatory hurdle in her way. After graduating Stanford Law School, O’Connor struggled to find a job, as few firms were willing to hire female attorneys. O’Connor eventually negotiated an unsalaried job, and soon worked as a deputy county attorney despite not being compensated for her work.¹ During the first few years of her legal career, O’Connor worked as an attorney for a number of organizations and municipalities. In 1969, she was elected to the Arizona Senate, where she later served as the first female state senate Majority Leader in the United States.² After a historic five years in the Arizona State Senate, O’Connor moved on to work as a Superior Court judge and later on the Arizona Court of Appeals in Phoenix.³ Her perseverance and remarkable legal record captured the attention of Republican President Ronald Reagan. President Reagan nominated O’Connor to the Supreme Court of the United States in 1981 to replace centrist Potter Stewart. In September of that year, the Senate confirmed O’Connor on a unanimous 99-0 vote.⁴ When the Court came into session that fall, all eyes were on the first female justice.

Reagan’s nomination stemmed from two fundamental factors: a promise to the American people to nominate a female justice to the Supreme Court and a desire for an objective and ideologically flexible justice.⁵ O’Connor fulfilled both requirements; Reagan, however, faced backlash from the public. Conservatives resented O’Connor’s support of legal abortion, as well as her support of the Equal Rights Amendment, and liberals felt that her social advocacy did not go far enough. Despite their concerns, O’Connor’s moderate conservatism was a strategically safe choice designed to appeal to most Americans.

Historians and journalists’ who characterized O’Connor as shifting away from traditional conservatism and towards centrism neglected to acknowledge the increasing partisan polarization on the Supreme Court. During the beginning of her time on the Court, O’Connor’s decisions often aligned with those of the other conservative justices, earning her the descriptor of “a ‘classic conservative’” by journalists.⁶ However, as the years went by, and as the political makeup and ideologies of the Court shifted, journalists began to call O’Connor “a moderate… a centrist, a moderate centrist.”⁷ Journalist Lyle Denniston, for example, described O’Connor as a “moderate establishment progressive” in a 1999 Baltimore Sun article.⁸ In the eyes of the journalists, O’Connor’s political ideologies had shifted. However, legal analysis indicates that rather than the Justice’s political ideology shifting, the political ideologies of the court around her shifted instead.

Rather than O’Connor’s political ideology shifting left, the drastic increase in ideological polarization on the Supreme Court created the impression that O’Connor became more liberal. When O’Connor first stepped onto the Court in 1981, liberal justices comprised the majority of the bench.⁹ By the time she left the court in 2006, however, the makeup of the court had shifted right, and conservative voices dominated the court’s decisions.¹⁰ In addition to the change in political makeup, the Court also experienced ideological polarization. The spike in polarization stemmed from the increase in consistent justices. Many of the justices were predictable in their voting; they reliably voted along party lines and with the justices that shared their liberal or conservative ideology. The justices that acted as swing votes, however, were rapidly disappearing. These justices formed the political center, and their decisions did not resonate with any overarching ideology. Following in O’Connor’s footsteps after her retirement, Justice Anthony Kennedy acted as the Court’s swing vote. Appointed as a conservative justice by President Reagan, Kennedy voted with liberals and conservatives alike. Unlike many of his colleagues, and similar to O’Connor, his ideology was difficult to pinpoint.¹¹ The political center that O’Connor and Kennedy engaged with “slowly disappeared, especially since the 1980s” because of the increase in partisan sorting and ideological separation.¹² Partisan sorting meant that “conservatives increasingly [migrated] to the Republican Party and liberals to the Democratic Party,” and this happened because the values and priorities of the two parties increasingly became more disparate.¹³ The two groups had trouble finding common ground, and this difficulty translated into an increasingly divided Supreme Court. Presidents would nominate judicial candidates who they felt were sensitive to their party’s agenda and view of the Constitution, consequently contributing to the lack of apolitical justices.

As the political center vanished, the conservative justices moved further right and the liberal justices moved further left, leaving those who did not conform to partisan jurisprudence as swing votes. O’Connor, however, did not shift right with the rest of the conservative justices. Prior to the extreme increase in polarization, O’Connor voted mostly with the conservative justices; however, when the conservatives shifted right, O’Connor began to identify less with their beliefs, and she voted with liberal and centrist justices in addition to the conservative justices.¹⁴ Because of her previous voting record, she stood out as an enigma when compared to her colleagues during the second half of her time on the court. The media identified this apparent “shift” as a change in O’Connor’s ideology, when in actuality, the reason she began voting with centrists and liberals was because the court had shifted around her. The makeup of the court became more right leaning and the conservative justices became more vehemently conservative, ultimately contributing to the appearance of a “shift” in O’Connor’s political ideology.

O’Connor’s jurisprudence centered around the idea that “[her] obligation [was] to define the liberty of all, not to mandate [her] own moral code.”¹⁵ O’Connor stood fiercely against the politicalization of the Court, and she firmly believed that individual morals and ethics had no place in the courtroom. Considering herself to be an apolitical justice, O’Connor allowed the law to be the only contributing factor in her decisions. She believed that “the law [provided] necessary continuity amidst [a] constantly shifting political landscape. It is an assurance that the rules of the game [applied] equally to everybody, whether they [were] in today’s or yesterday’s majority.”¹⁶ O’Connor’s philosophy boiled down to one notion: political ideology should not impact a justice’s interpretation of the law. Believing that politics and jurisprudence were two separate spheres, O’Connor followed a strict, apolitical understanding of American law. She explained in a New York Times interview that she “tried to decide each case based on the law and the Constitution,” instead of personal morals and political beliefs.¹⁷

Because of her refusal to be influenced by partisan polarization and politics, O’Connor frequently cast the swing vote on divided cases. Most of the justices were predictable and voted based on party lines, meaning that all eyes were on O’Connor to see how she would vote. Her beliefs did not resonate with either polarized side of the aisle, making her voting unpredictable. The Bush v. Gore case, for example, concerned the constitutionality of the Florida ballot recounts during the 2000 presidential election.¹⁸ The decision fell to the conservative wing of the Court, and O’Connor voted alongside the majority. In the McConnell v. Federal Election Commission case, however, O’Connor voted with the liberal wing. The case centered around the Bipartisan Reform Act of 2002, and it questioned not only the relationship between regulations on political advertising and the First Amendment, but also the extent of Congress’ power in regulating elections.¹⁹ The Washington Post put it best when they described O’Connor as “a conservative but independent justice with no overarching ideology.”²⁰ O’Connor firmly and bravely stuck to her own philosophy, and she did not allow herself to be swayed by the partisan division that pervaded U.S. politics. Reflecting on her nonconformity, O’Connor explained that “unpopular judicial decisions [were] especially important because the rule of law [was] worthless if it [was] only followed when it [was] popular. [The judiciary was] most [needed] to uphold the law during times when it [was] least popular to do so.”²¹ This belief may explain why even when faced with public backlash and pressure, O’Connor consistently upheld her judicial integrity.

An examination of a few key cases illustrated that O’Connor’s view of the Constitution did not change as radically as journalists hypothesized. Both the public and the media expected O’Connor to vote with the conservative justices; however, O’Connor quickly defied this expectation in the 1982 case Mississippi University for Women v. Hogan, which considered the constitutionality of the University’s women only admissions policy.

²² O’Connor voted with the liberal justices that the women-only policy breached the Equal Protection Clause, quickly proving early on in her Supreme Court tenure that she would not sacrifice the law in favor of partisan politics. As the ideological makeup of the court shifted, so did O’Connor’s voting. Initially, O’Connor’s beliefs resonated with those of the conservative justices, but when the conservatives moved farther right, she “emerged as a justice who looked to resolve each case and no more, one with no overarching philosophy that might preordain a result.”²³ The liberal and conservative wings of the court had shifted so much that O’Connor’s voting no longer resonated with the values of one specific group. Despite the media’s interpretation of O’Connor’s political ideology, the increase in polarization indicated that rather than O’Connor’s political ideologies shifting, the ideologies of her fellow justices shifted. Justice O’Connor became a swing vote not because her own political ideologies dramatically shifted left, but because the rest of the court shifted further right. When cases became increasingly more partisan, the responsibility often fell upon Justice O’Connor to be the deciding vote on contentious topics.

O’Connor’s status as “swing vote” made her the deciding vote that preserved reproductive rights. O’Connor had always been a strong advocate for women’s rights, even before President Reagan nominated her to the Supreme Court. O’Connor explained in a New York Times interview that when she “was in the Arizona Legislature, one of the things that [she] did was to examine every single statute in the state of Arizona to pick out the ones that discriminated against women and get them changed.”²⁴ O’Connor’s experience with gender discrimination in her career motivated her to fight for equality for all women in the U.S. Later, once she began her tenure on the Supreme Court, O’Connor explained she often felt that “if [she] stumbled badly in doing the job, [she thought] it would have made life more difficult for women, and that was a great concern of [hers].”²⁵ The Justice displayed strong support for women’s rights throughout her legal history; her passion for gender equality was unwavering. What made O’Connor such an effective justice was her ability to separate personal beliefs from the law. O’Connor herself was opposed to abortions, but she refused to allow her personal beliefs to trump the Constitution and the law. After the controversial 1973 Roe v. Wade decision, which preserved the right to abortions in the U.S., O’Connor was forced to grapple with the legal boundaries of ruling over abortions.²⁶ “When the Roe decision came under fire from conservative activists and the Supreme Court’s balance shifted toward the Republican Party, her struggle became the whole country’s.”²⁷ Because of the partisan divide in the Court, all eyes were on Justice O’Connor, and O’Connor, just as she had done countless times before, diligently ensured that her personal biases did not influence her decision. During the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey case, O’Connor formed a secret alliance with Justice Kennedy and Justice Souter. The three justices held meetings to create “a joint opinion that, when added to the pro-abortion votes of Blackmun and John Stevens, would effectively negate Rehnquist’s effort to gut Roe v. Wade.”²⁸ The case was split down the middle, and O’Connor’s vote turned the case into a 5-4 decision that reaffirmed the Roe v. Wade decision almost two decades before. O’Connor’s status as swing vote allowed her to break a tie in a contentious, divided case. Her vote in the Planned Parenthood v. Casey case “secured a fragile national consensus” surrounding abortions in America, laying the foundation for future abortion cases on a state and federal level.²⁹ O’Connor’s vote in favor of reproductive rights preserved the right to safe abortions in the U.S.

Sandra Day O’Connor’s commitment to nonpartisanship allowed her to be a consistent voice for justice and equality in a volatile, polarized Supreme Court. Justice O’Connor resented the increasing role that politics played in the Court, and she tirelessly strived to preserve the purpose of the Court: nonpartisan jurisprudence with a focus on the law, not politics. She ensured that her personal biases did not influence her decisions. As the Court became more ideologically polarized, and her fellow justices began shifting further left or right, O’Connor found herself as the Court’s swing vote. In divided decisions, such as the Planned Parenthood v. Casey case, O’Connor often cast the deciding vote. Being the swing vote came with elevated power and influence, and all eyes were on O’Connor. This public scrutiny that came from being a swing vote was the reason that the journalists were so intent on labeling O’Connor as a liberal or conservative. Their hyperfocus on her ideology caused them to miss the shift of the Court because they were so fixated on O’Connor as the visible swing vote. O’Connor faced increasing outside pressures and resistance, but she responded to the pressure with calmness and confidence, never letting herself fall into the partisan trap. O’Connor’s resilience and commitment to the law rendered her an exceptional justice. Her ability to challenge the status quo and disturb the partisanship that overtook the Court contributed to her lasting, historic legacy. Justice O’Connor’s diligent, passionate work preserved reproductive rights in the United States and built the foundation for future reproductive rights policy and rulings.