IN MEMORIAM
on Dec 11, 2023
at 3:38 pm
This tribute is a part of a collection on the life and work of the late Justice Sandra Day O’Connor. Marci A. Hamilton is Professor of Follow in Political Science and Fox Pavilion Management Senior Non-Resident Fellow within the Program for Analysis on Faith, College of Pennsylvania.
We may use a Justice Sandra Day O’Connor on the USA Supreme Courtroom proper now. Her judgment and customary sense protected the nation from the extremes which have polarized this striving democracy. That polarization isn’t any extra obvious than on the Supreme Courtroom proper now.
Justice O’Connor’s best advantage on the Courtroom, for my part, lay in her steadfast allegiance to her personal ethical middle, no matter what the precise demanded of her, and regardless of being appointed by President Ronald Reagan. On abortion, kids’s rights, and girls’s rights, she was a bulwark in opposition to the acute proper and the left, a robust middle who determined every case in response to her personal lights. O’Connor wasn’t counting votes however somewhat listening to her conscience.
She was a champion for girls from the beginning. Firstly of her time on the Courtroom, in 1982, she wrote the bulk opinion in Mississippi College for Ladies v. Hogan, which held {that a} state nursing college that barred males violated the equal safety clause. She reasoned that banning males from a state nursing college was primarily based on drained stereotypes, which set the stage for the later determination in United States v. Virginia, which held that girls couldn’t be denied admission to the Virginia Navy Institute.
Simply earlier than I began clerking within the 1989 Time period, the Courtroom had issued the Webster v. Reproductive Well being Providers determination through which Justice O’Connor rejected the left’s arguments in opposition to most abortion laws whereas on the identical time refusing to overrule Roe v. Wade. O’Connor was prepared to comply with the abortion restrictions within the regulation, annoying the left, however drew the road at interring Roe, which infuriated Justice Antonin Scalia, who denigrated her in his Webster concurrence, through which he tried to bully her into making that fateful transfer. She was unfazed, neither bowing to him nor selecting up verbal arms in opposition to him then or later (I attempted!). A number of instances had been teed up throughout our Time period to overrule Roe, as the precise apparently anticipated that she would bend, however she didn’t. When that grew to become clear throughout the court docket’s partitions, the challenges magically melted away earlier than the Courtroom may totally contemplate them—which, as a aspect be aware, exhibits the Federalist Society’s machinations on the Courtroom as early as 1989 and her independence from it.
Justice O’Connor was additionally a frontrunner for baby safety and rights, as she refused to be cowed by the left and proper’s devaluation of kids’s well-being for the sake of grownup rights and pursuits. In Maryland v. Craig, her majority opinion held {that a} baby sufferer may testify by way of closed-circuit tv somewhat than should face the individual accused of sexually abusing them in court docket. She held that the confrontation clause was not absolute, which left room to guard the kid.
Equally, within the abortion context, in Hodgson v. Minnesota, the Courtroom thought of a regulation that required a pregnant baby to inform each mother and father to acquire an abortion. There was an exception if the kid was abused or uncared for, however the baby was required to report the abuse to the authorities to have the ability to receive the abortion, which meant each mother and father had been notified—together with the alleged abuser. In different phrases, a toddler in an abusive dwelling needed to put herself at risk to train her proper to an abortion. Justice O’Connor wrote a separate opinion that offered the fifth vote to carry the two-parent notification unconstitutional. Ever the pragmatist, she defined her vote by pointing to the information: solely half of Michigan’s kids lived with each organic mother and father and one-third lived with just one dad or mum. The 2-parent hurdle was merely unreasonable and the potential hurt to the kid too nice.
O’Connor’s resistance to the “Christian nation” motion from the precise was heroic. Earlier than the modern Courtroom swept away the first buildings of the separation of church and state and fell for the ahistorical idea that the institution clause exists solely to guard faith from authorities (not authorities from faith), Justice O’Connor saved the theocrats from breaching the wall. She launched the “endorsement take a look at,” which bolstered the institution clause precept that the federal government could not help a specific non secular viewpoint and, as a substitute, should endeavor to be impartial towards faith. She rightly voted in opposition to a Christian creche scene (Mary, Joseph, and Jesus in a manger) in a courthouse and a school-backed prayer at a public college commencement ceremony, as a result of, as she stated in Lynch v. Donnelly, they “ship[] a message to non-adherents that they’re outsiders, not full members of the political group.” Twenty-two years later, she elaborated: “Permitting authorities to be a possible mouthpiece for competing non secular concepts dangers the type of division which may simply spill into suppression of rival beliefs.”
The Christian proper positively and viscerally hated the “endorsement take a look at,” for apparent causes. In case your mission is to show the nation again to a legendary time when it was unified by singular, fundamentalist Christian beliefs and/or to unite the facility of a Christian minority with the federal government, the endorsement take a look at is an insuperable barrier. The criticism really felt private, as a result of their frustration appeared to return from some entitlement to regulate her, as a result of she was a girl and/or a conservative. Sadly, as quickly as a majority of justices had been appointed who shared the identical Christian religio-political perspective, they dispatched with the take a look at. Her memorable query in 2005 in McCreary County v. ACLU, the place she tendered the decisive vote to carry unconstitutional a Kentucky courthouse’s Ten Commandments show, stays related: “Those that would renegotiate the boundaries between church and state should due to this fact reply a tough query: Why would we commerce a system that has served us so properly for one which has served others so poorly?”
Historical past will file that Justice O’Connor’s ethical middle was unyielding to the conservatives’ rightward lunge throughout her tenure on the Courtroom. She was bemused and even amused by her new label as a “liberal,” however she defied simple classes. She was Justice Sandra Day O’Connor, interval, and we’re all higher for her instance and repair.
