O'Connor's moderate legacy had died some while ago

Opinion editor's note: Star Tribune Opinion publishes a mix of national and local commentaries online and in print each day. To contribute, click here.

•••

Justice Sandra Day O'Connor, who died Friday at 93, was the sort of figure once familiar in American political and judicial life: a moderate Republican ready to look for compromise and common ground.

That led her to vote to uphold abortion rights, affirmative action and campaign finance regulations. Since she retired in 2006, replaced by the far more conservative Justice Samuel Alito, the Supreme Court has dismantled large parts of her legacy.

That is nowhere more apparent than in abortion rights.

O'Connor joined the controlling opinion in Planned Parenthood v. Casey, the 1992 decision that, to the surprise of many, reaffirmed the core of the constitutional right to abortion established in 1973 in Roe v. Wade.

To overrule Roe "under fire in the absence of the most compelling reason to re-examine a watershed decision," she wrote in a joint opinion with Justices Anthony Kennedy and David Souter, "would subvert the court's legitimacy beyond any serious question."

O'Connor also wrote the majority opinion in Grutter v. Bollinger, a 2003 decision upholding race-conscious admissions decisions at public universities, suggesting that they would no longer be needed in a quarter-century. In striking down affirmative action programs in higher education in June, the Supreme Court beat her deadline by five years.

Chief Justice John Roberts, writing for the majority, said the timetable was unrealistic and unprincipled.

"The 25-year mark articulated in Grutter, however, reflected only that court's view that race-based preferences would, by 2028, be unnecessary to ensure a requisite level of racial diversity on college campuses," he wrote. "That expectation was oversold."

O'Connor was also an author of a key campaign finance opinion, McConnell v. Federal Election Commission in 2003. A few years after Alito replaced her, the Supreme Court, by a 5-4 vote in 2010, overruled a central portion of that decision in the Citizens United case.

A few days later, at a law school conference, O'Connor reflected on the development.

President Ronald Reagan nominated O'Connor in 1981, making good on his campaign trail promise to name the first female Supreme Court justice. At the time, she was a judge on a state appeals court, not a typical launchpad to the Supreme Court in the modern era, when it has been dominated by former federal appeals court judges.

But her origin story was a reflection of her strengths, drawing on a range of experience largely missing among the current justices. Raised and educated in the West, she served in all three branches of Arizona's government, including as a government lawyer, majority leader of the state Senate and a trial judge.

Her background informed her decisions, which were sensitive to states' rights and often deferred to the judgments of the other branches of the federal government. Her rulings could be pragmatic and narrow, and her critics said she engaged in split-the-difference jurisprudence.

But some of her commitments were unyielding, said Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court. "As often as Justice O'Connor and I have disagreed, because she is truly a Republican from Arizona, we were together in all the gender discrimination cases," Ginsburg, who died in 2020, told USA Today in 2009.

What is beyond question is that she was exceptionally powerful. She held the crucial vote in many of the court's most polarizing cases, and her vision shaped American life for her quarter-century on the court. Political scientists stood in awe at the power she wielded.

In 2018, in a letter announcing her retreat from public life as she battled dementia, O'Connor called for a renewed commitment to nonpartisan values, one that would require "putting country and the common good above party and self-interest, and holding our key governmental institutions accountable."

At the time, Roberts, who had joined the court just months before O'Connor left it, described her place in history.

"She broke down barriers for women in the legal profession to the betterment of that profession and the country as a whole," he wrote. "She serves as a role model not only for girls and women, but for all those committed to equal justice under law."

On Friday, the chief justice added, "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."