Today’s embattled Justices of the Supreme Court have much to learn from Sandra Day O’Connor’s legacy, assuming they are interested in salvaging their own places in history. Her decisions on cases addressing reproductive rights demonstrate a respect for judicial restraint and precedent for which she will long be remembered. They also demonstrate a steely resolve to stand up to the pressures of the Federalist Society.
Justice O’Connor served in elective office as an Arizona Republican and had campaigned for Barry Goldwater when he ran for president. When Ronald Reagan kept his commitment to nominate the first woman to the Supreme Court, her political background and skills complemented her résumé of achievement. Her unanimous confirmation by the Senate is a glimpse into a long-past time when qualifications could overcome politics in the SCOTUS nomination process.
Justice O’Connor’s ascension also coincided with the emerging power of the Federalist Society, an organization that has been largely responsible for the appointment of judges committed to an ideology that ignores judicial precedent to overturn individual liberties and the government’s regulatory authority. Its benefactor and mastermind, Leonard Leo, has been in the cultivation business for decades, seeding the judiciary with appointees and law clerks who have remade jurisprudence in many areas of the law.
With the appointment of Republican activist Sandra Day O’Connor by a Republican President, the Federalist Society likely believed that their dream of overturning Roe v. Wade and its progeny was at hand. Some of the Court’s powerful law clerks owed their prestigious roles to the Federalist Society’s focus on identifying and developing the careers of law students who could be counted upon to serve as judicial activists hiding behind the language of Constitutional originalism.
University of Pennsylvania professor and constitutional law scholar Marci Hamilton served as a law clerk to Justice O’Connor in 1989. As she wrote in Her Honor – Stories of Challenge and Triumph from Women Judges, Federalist Society law clerks formed a “secret ‘cabal’” to advance the Federalist Society’s agenda. In describing their focused dedication to “set the Court’s agenda behind the scenes,” Hamilton noted: “They would meet in private to coordinate their strategy for both the shadow docket and the merits cases. Of course, their highest priority was to overrule Roe.”
But they turned out to be no match for a Justice with a belief in the power of precedent and a strong spine. Hamilton tells how she was “approached by many a cabal member” seeking to influence the Justice’s vote in the cases before the Court that sought to overturn Roe. In each instance, however, Justice O’Connor never surrendered to the pressures to overturn that legal precedent.
The lessons were well-learned by the Federalist Society, however. A Supreme Court nominee that would be wholly independent in thought and action was anathema to an organization devoted to remaking decades of jurisprudence. Instead, a potential nominee should demonstrate a history of philosophical purity dedicated to interpreting the Constitution in accordance with how a small group of men from the 1700s might have decided the matter.
Six of the nine Justices now sitting on the Supreme Court are or were Federalist Society members. Clarence Thomas, perhaps demonstrating his own loyalty to the organization – if not gratitude for the largess of benefactors – suggested in his concurring decision overturning Roe that the Court reconsider a variety of due process precedents, including cases involving access to contraception and the right for same-sex couples to marry.
Justice O’Connor’s retirement from the Supreme Court to care for her ailing husband marked a turning point for the Court. Her replacement, Samuel Alito, wrote the Dobbs decision that overturned Roe.
Justice O’Connor has secured her legacy as an independent Justice who respected precedent and had an instinctive understanding of where the Court should seek common ground. As public trust and confidence in the Supreme Court diminish with each radical decision, one can only hope it is not too late for the lessons of her legacy to be learned and adopted.