Sandra Day O'Connor dies at 93; the Republican Party she leaves behind is a disaster
Donald Trump lost a key presidential immunity argument at the DC Circuit, and George Santos is no longer a member of the House.
Sandra Day O’Connor, the first woman to serve on the U.S. Supreme Court, died Friday morning at 93 years old, the court announced in a statement.
“She is truly a person for all seasons,” then-president Ronald Reagan said of the former Arizona lawmaker and state court judge in announcing on July 7, 1981, that she was his nominee to replace Potter Stewart on the high court.
The focus from the press that day was on abortion, from the first question to Reagan as he completed his statement.
“Do you agree with her position on abortion, Mr. President?“ he was asked.
After initially trying to beg off the question, Reagan responded, “I am completely satisfied.”
“On her right-to-life position?” a reporter specified.
“Yes,” he replied.
Reagan’s election had come less than eight years after the Supreme Court had decided Roe v. Wade, and his candidacy was strongly backed by anti-abortion activists.
Less than six months after taking office, Reagan named O’Connor as his high court pick joined by then-attorney general William French Smith, who told the press that she had emerged as the president’s nominee from “20 or 25 names” on the original list of potential nominees.
Abortion and politics were the big issues that day, but sexism was in the room as well.
“Was she the best qualified woman candidate or the best qualified candidate?“ a male reporter asked the attorney general.
A slightly miffed Smith responded that there were “a large number of very qualified people” considered — “and she was one of those.”
O’Connor was confirmed in a 99-0 vote 10 weeks later and took her seat as an associate justice of the Supreme Court on Sept. 25, 1981.
Regardless of what Reagan thought he was doing that year, her votes and a key 1993 decision would help to keep Roe on the books — and the right to an abortion constitutionally protected — for more than another 40 years.
After her 1981 confirmation, O’Connor went on to serve on the high court for nearly 25 years, ultimately retiring during the presidency of George W. Bush, who she helped usher into office with her pivotal vote in Bush v. Gore.
O’Connor was reportedly upset early on Election Night 2000, when it appeared that Al Gore had won, because her hope was to retire if George W. Bush won. But, then Florida happened and litigation ensued. Newly revealed documents from one of O’Connor’s colleagues at the time, John Paul Stevens, revealed her key role in crafting the decision the court released on Dec. 12, 2000, essentially ending Gore’s hopes for changing the outcome in Florida and, with it, the outcome of the presidential race.
O’Connor told Bush of her intention to retire only after his 2004 re-election, in a July 2005 letter stating her plan to do so once her successor was confirmed. Getting there, however, took some time. Bush initially nominated John Roberts to replace her. When William Rehnquist, then the chief justice, died later that summer, Bush instead nominated Roberts to be chief justice. Bush’s eventually withdrawn nomination of his White House counsel, Harriet Miers, to take O’Connor’s seat followed. Finally, Bush nominated Sam Alito, who was confirmed and sworn in on Jan. 31, 2006, ending O’Connor’s tenure on the high court.
It was, however, her opinions reaffirming Roe v. Wade, alongside Justices Anthony Kennedy and David Souter, in 1993’s Planned Parenthood of Southeastern Pennsylvania v. Casey and upholding the constitutionality of some affirmative action programs in 2003’s Grutter v. Bollinger that perhaps most clearly marked her ideological and legal position on the court.
Casey’s “undue burden” standard for considering abortion restrictions certainly led to new opportunities for state lawmakers seeking to restrict abortion to try and do so, but the joint opinion’s statement that “the essential holding of Roe v. Wade should be retained and once again reaffirmed” was a pivotal moment, pulling Roe forward in spite of the opposition of the party whose presidents had appointed her, Kennedy, and Souter.
Casey remained the law of the land throughout the remainder of O’Connor’s time on the court and for more than a decade after her 2006 retirement.
Conservatives, however, took the lesson of O’Connor, Kennedy, and especially Souter to be that they must be more careful about who is getting on the Supreme Court. Particularly as to Roe.
Enter Donald Trump’s presidential election a decade after O’Connor’s retirement and his three eventual Supreme Court nominees: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
With their votes and that of Justice Clarence Thomas, Alito — O’Connor’s successor — authored the 2022 opinion overturning Roe.
Then this year, it was Roberts — O’Connor’s almost-successor — who eviscerated her Grutter decision, ending race conscious admissions policies in higher education in a 6-3 vote.
The institute O’Connor founded and leaves behind focuses on advancing civics education and has a stated vision of creating “a nation where important policy decisions affecting our future are made through a process of critical analysis of facts and informed participation of all citizens.”
The court she leaves behind faces challenges, resulting from the extremism the majority has exhibited in the above decisions and other rulings in recent years but also resulting from ethical questions and the justices’ intransigence in addressing those questions forthrightly.
In Roberts’s statement on Friday, he said, in part, “We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education. And we celebrate her enduring legacy as a true public servant and patriot.”
The Republican Party O’Connor leaves behind and helped usher into presidential power at the start of the new millennium is now led by Trump — a man who is running for president again after trying to overturn the 2020 election and who is doing so while fighting two federal criminal cases, and two state criminal cases, a state civil fraud case, and private litigation.
In other Republican Party news
In one of those cases Donald Trump is fighting, he lost an effort at the U.S. Court of Appeals for the D.C. Circuit on Friday to have private lawsuits against him based on his actions surrounding Jan. 6, 2021, dismissed under a presidential immunity claim.
The appeals court, in an opinion by Judge Sri Srinivasan (Obama appointee) making clear the limited and preliminary nature of the ruling, unanimously rejected Trump’s claim that his presidential immunity claim required the lawsuits’ dismissal:
[W]e hold only that, taking the allegations in the plaintiffs’ complaints as true as we must at this point in the proceedings, President Trump has not demonstrated an entitlement to dismissal of the claims against him based on a President’s official-act immunity. In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.
Among the three judges on the panel was Judge Gregory Katsas, a Trump appointee who worked in the White House Counsel’s Office in the Trump administration before his appeals court appointment. He joined Srinivasan’s opinion in full but wrote a concurring opinion to “offer a few thoughts elaborating on the Court’s” framework for considering presidential immunity claims.
The third judge, Judge Judith Rogers, a Clinton appointee, only joined the main ruling — on the motion to dismiss — and not the other parts of the court’s ruling discussing that framework.
And, in the other big news of the day, George Santos — the gay Republican elected to Congress just a little more than a year ago — was expelled from the U.S. House of Representatives.
The vote was 311-114, easily surpassing the two-thirds threshold for expulsion. It should be noted, however, that the Republican leadership still opposed Santos’s expulsion — and that a majority of House Republicans voted against expulsion.
As Michael Gold and Grace Ashford, whose New York Times reporting over the past year brought many of Santos’s lies to the public’s attention, wrote on Friday:
The move consigned Mr. Santos, who over the course of his short political career invented ties to the Holocaust, Sept. 11 and the Pulse nightclub shooting in Orlando, to a genuine place in history: He is the first person to be expelled from the House without first being convicted of a federal crime or supporting the Confederacy.
In departure, the now-former New York lawmaker — who, like Trump, also faces federal criminal charges — remained defiant.
“Why would I want to stay here? To hell with this place.”
A civic education, indeed.
O'Connor also voted with the majority 5-4 in Bowers v. Hardwick.
"ending Gore’s hopes for changing the outcome in Florida" is a funny way to spell "allowing partisan thuggery preventing votes from being counted in Florida to stand", but other than that, this is a remarkably fair obit for a person who played a complex role in the 20th century's politics.