Justice O’Connor’s Pragmatic Jurisprudence
Appointed to the bench by President Ronald Reagan over four decades ago last month, the late Justice Sandra Day O’Connor belongs to a bygone conservative mindset. In announcing her appointment, Reagan noted that she would be the first female justice to join the Supreme Court.
We might recall that in the late nineteenth century when Myra Bradwell sought admission to the Illinois bar, she was denied admissions on the simple grounds that she was a woman. Pondering whether this violated her rights as a citizen, the Supreme Court dismissed her claim in a few brief paragraphs.
A century later these attitudes endured as social norms if not as legal rules. When O’Connor graduated from Stanford Law third in her class, she was offered a position as a legal secretary – but not as an attorney. Undeterred, O’Connor opted for a career in public service, which would lead to serving two full terms in the Arizona state legislature, where she became the state’s first female majority leader.
Justice O’Connor is the last justice to serve as a legislator. Her real-world experience shaped her approach to deciding constitutional questions.
In contrast with originalists like Justice Antonin Scalia, O’Connor never offered a theory to guide her approach to constitutional interpretation. Instead, she tended to decide cases in a case-by-case approach. This was not uncommon among small “c” conservative justices prior to the advent of modern originalism on the Court.
O’Connor’s approach to constitutional interpretation has been characterized as a kind of judicial minimalism. In this view, the Court should not go beyond settling the specific constitutional question before it.
O’Connor’s admirers saw an appreciation for precedent, an acknowledgment of changing circumstances, and a respect for legislative judgments – even if she did not always defer to them – that enabled an ongoing conversation regarding constitutional standards. Critics argued that such an approach offered a false judicial modesty that placed more power in the hands of the Court – and particularly in O’Connor’s hands as the swing justice.
There is truth to each of these understandings. Yet in the shadow of the current Court, O’Connor’s approach has virtues worth considering.
In the 1992 case that upheld Roe v. Wade, O’Connor joined a plurality opinion that evaluated the place of women in society in 1992 compared to earlier eras, including how women had come to rely on the constitutional right to terminate a pregnancy. Weighing these altered circumstances, attempting to apply principles of liberty in light of significant social changes, the Court insisted that Roe should be upheld even if it had not been correctly decided the day it was handed down.
Critics like Justice Samuel Alito, who replaced O’Connor on the Court, argue that such considerations have no place in constitutional interpretation. Overturning Roe in the Dobbs decision, Alito argued that precedent did not matter, nor did the altered place of women in society. Only rights that had been historically protected when the Fourteenth Amendment was ratified in 1868 were entitled to judicial protection.
But recall the Court’s decision a few years after the Fourteenth Amendment’s ratification that held that women could be prohibited from legal careers simply because they were women. Would that be good law today? Alito’s opinion neglects such questions.
While there are problems in O’Connor’s reasoning, her insistence on real-world considerations is hard to discount. Does the fact that social attitudes toward women were profoundly different in 2022 than in 1868 matter? Does the fact that women had come to rely on a constitutional right to make decisions about their bodies for 50 plus years matter?
Consider these points in regard to the Court’s opinion in Trump v. United States. Confronted with former President Trump’s role on January 6th and the prosecution against him, the Court was largely uninterested in the specific facts before it.
Instead, the Court sought to craft a “rule for the ages,” granting the president sweeping immunity because it was worried, as an abstract matter, that presidents might be hesitant to carry out their constitutional duties if subject to criminal prosecution once they left office. The Court was oblivious to the fact that presidents have claimed ever more constitutional authority over the last century.
Trump v. United States would have benefited from a dose of O’Connor’s focus on the actual facts of the case before it.
Worse, while critics of O’Connor argue that originalism constrains the Court, unlike O’Connor’s more practical approach, the current Court has shown that this is demonstrably false. In its most important opinions from last term – Trump v. Anderson and Trump v. United States – it showed no interest in original meaning, and was certainly not limited by it.
O’Connor’s approach to constitutional interpretation is hardly without its flaws. But she was right on one crucial question. In retirement she turned her efforts to civics education. She thought that if constitutional democracy was going to endure in America, it was going to be carried forward by citizens and representatives, not by the Supreme Court – whether it theorizes deeply or narrowly.
George Thomas is the Burnet C. Wohlford Professor of American Political Institutions at Claremont McKenna College and a fellow with the Jack Miller Center.