No, Sandra Day O'Connor wasn't that great [View all]

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No, Sandra Day O'Connor wasn't that great
The first woman on the Supreme Court gave the appearance of positive change — but she was a tool of the instutition

By DAN CANON
PUBLISHED DECEMBER 6, 2023 5:31AM (EST)


(Salon) Since her death was announced last Friday, your favorite legal commentators have been gushing about the legacy of Sandra Day O'Connor. Dahlia Lithwick opened the most recent episode of her excellent podcast Amicus by claiming "had there never been an O'Connor, there would never have been a [Ruth Bader] Ginsburg." Lithwick's guest, a former O'Connor clerk, said she "modeled what it means to be a good person." NPR featured another former clerk who talked about how "warm and engaging" O’Connor was. The Washington Post praised her for an approach to the law that was “more infused with common sense than driven by ideology.”

But I am not among your favorite legal commentators, and, as you've probably guessed from the title, I am not here to lionize Justice O'Connor. Instead I'll argue that O'Connor represents everything wrong with America's legal institutions. This is so even if we give her the benefit of every doubt; e.g., that her appointment wasn't a cynical ploy by Reagan's GOP, and that she was a trailblazer for women lawyers everywhere, and that she saved Roe v. Wade (for a while), and that her opinion in Bush v. Gore was the result of careful deliberation rather than a naked abuse of power.

....(snip)....

O'Connor knew that we were decades behind the rest of the world in retaining the death penalty at all, let alone using it on juvenile offenders. She didn't care. It was more important - again - for the state to have the power to kill. And lest we fall prey to the whole “judges evolve” ruse, this opinion was written after more than two decades on the high court.

O'Connor was, of course, not uniformly terrible. If there is a circle of Hell reserved for the worst Supreme Court justices, she's not likely to end up there with the likes of Roger Taney and Sam Alito. She was consistently good on gender issues, and sometimes more-or-less okay on criminal justice matters (the above quotes notwithstanding). And she's certainly not half as bad as the scores of Trump loyalists with lifetime lower court appointments who are eagerly working to return America to the eighteenth century. But "not uniformly terrible" should not be our measure of greatness. ..............(more)

https://www.salon.com/2023/12/06/no-sandra-day-oconnor-wasnt-that-great/