Abortion and the legacy of Justice Sandra Day O’Connor

Sandra Day O’Conner and Justice Samuel Alito

By Ronald J. Hansen |Arizona Republic

 In possibly her last day on the bench, Supreme Court Justice Sandra Day O’Connor broke a 4-4 tie Monday as she had so many times before, and left a host of hot issues for her successor.

Just beneath the surface of Friday’s Supreme Court ruling toppling federal abortion rights is a subcurrent centered on former Justice Sandra Day O’Connor.

There is the obvious: O’Connor wrote the 1992 opinion that preserved abortion rights for another 30 years, but put them on a different legal footing.

There is the ironic: That 1992 decision shredded the legal reasoning involving Justice Samuel Alito, the man who just erased hers.

And there is the ponderous: What if O’Connor had not effectively handed the presidency to Republican George W. Bush in 2000? What if she had not retired in 2005, giving Bush the chance to replace her with Alito?

Newsweek reporter Evan Thomas, who wrote “First,” O’Connor’s authorized biography, said the new ruling certainly underscores the differences between her and Alito.

“Alito has obviously got some anger in him and a chip on his shoulder, and it shows,” Thomas said. “He’s almost defiant in his opinion. And you can’t help but think of Justice O’Connor … continuing to look for a middle way to keep the right to abortion alive but allow the states to limit it.”

Friday’s ruling seems destined to ripple across generations to come. It could also be cause for a reappraisal of O’Connor, the Arizona ranch girl and former state lawmaker who in 1981 became the first woman on the Supreme Court.

At a minimum, it brings into clearer focus the legal and stylistic differences between her and Alito.

“Justice O’Connor was thrilled with the appointment of (Chief Justice John) Roberts and very disappointed with the appointment of Justice Alito,” Thomas said. “Justice O’Connor was quite careful not to be critical of people publicly, but she didn’t do a very good job of hiding her apprehensions about Justice Alito.”

She believed, Thomas said, that Alito would undo the signature pieces of her work on the Supreme Court. The biggest was on abortion rights, and the other is on affirmative action.

“She said, ‘You know, the court’s going to undo what I did,’” he said. “Sure enough, that happened. It took a while, but it happened, and it’s going to happen again next year on affirmative action.”

The latest ruling affects O’Connor’s legacy, said Linda Hirshman, author of “Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.”


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