For much of her tenure, Justice Sandra Day O’Connor was so central to Supreme Court decisions that a book about her is called Queen’s Court. Not infrequently, especially after Justice Lewis Powell retired in 1987 and she became the swing vote, the Queen wielded her scepter on behalf of women. In 1992, she was one of the three “centrist” justices who held the dike against the ever more vociferous campaign to reverse Roe v. Wade and leave women’s reproductive fates to the tender mercies of the 50 states. When her sister in law, Ruth Bader Ginsburg, joined her in 1993, they formed a tag team on cases involving women: Ginsburg moved the equality ball forward while O’Connor played defense against an assault on women’s rights that had started long before.
After 2000, O’Connor stepped up her game on behalf of minorities more broadly. In addition to striking down the Nebraska “partial birth” abortion law, O’Connor was the architect of the opinion that brilliantly (if somewhat incoherently) saved affirmative action in public colleges from conservative assault in 2003. Against all her prior decisions, she even voted in favor of race-conscious redistricting.
Since Justice O’Connor left the Supreme Court, however, the conservative majority, including her successor, Justice Samuel Alito, has been gutting or outright reversing the body of law she produced. An abortion law just like the Nebraska one she struck down was affirmed. Proving sex discrimination got harder. Justice Ginsburg, left behind, is being called the Great Dissenter.
The process of undoing O’Connor’s legacy slowed last term when the Supreme Court lurched a little liberal. But starting Monday, the court looks poised to erase much of what remains of O’Connor’s life work. The court has agreed to review, for the second time, the University of Texas’ affirmative action program. Abortion providers in Texas have just joined Mississippi in asking the Supreme Court to decide whether states can essentially close down their abortion clinics by requiring them to affiliate with unwilling general hospitals. The current swing vote, Justice Anthony Kennedy, has not struck down a restriction on abortion since 1992. Supreme Court commentators are telling liberals to buckle their seat belts.
Liberal commentators—in sorrow and in anger—note that O’Connor had a big hand in having her decisions overturned when she voted in Bush v. Gore to stop the recount, effectively putting George W. Bush in the White House in 2000. When she retired five years later, he chose a conservative to replace her on the court. As the New York Law Journal put it recently, “Sandra Day O'Connor is no Ruth Bader Ginsburg. Ginsburg gave us the legal architecture of women’s place in America. O'Connor, the first woman on the U.S. Supreme Court, gave us George W. Bush.” However powerful Supreme Court justices are, when they are shaping the future of the nation, they are, at the end, equally powerfully at the mercy of history.
And yet, is it necessarily true that a legacy matters only if it lasts forever? Thanks in part to Justice O’Connor’s votes on the Supreme Court, women enjoyed three decades in which they did not risk death or jail in order to obtain abortions, even in the late term. Hundreds or thousands of women and racial minorities went to college and got jobs through affirmative action. Women don’t have to go down to the motel to negotiate their raise, as happened in one of the cases she decided, and they can go to any public university they choose, including Virginia Military Institute. Schoolgirls are protected from sexual harassment, and law firm partnerships are not allowed to tell eager law students, as Gibson Dunn told O’Connor in 1952, that they are fit only to be legal secretaries.
The Supreme Court still has not threatened to undo Ginsburg’s great cases establishing that the 14th Amendment applies to women. When she dissents and speaks to the future, as great dissents do, she can still charge the conservative majority with being unfaithful to established precedent, indeed, precedent she herself established. Even the ultra-conservative Justice Antonin Scalia felt compelled to deny that he would set women outside the protections of the Constitution.
Maybe we should appreciate O’Connor’s legacy for lasting as long as it did. And maybe we should cut her some slack for her vote in Bush v. Gore and recognize Ginsburg as something more than an author of fiery dissents. Even though their decisions may not last forever or even much longer, for three decades, largely because of their work, women had better lives and, more importantly, a foundation was laid for them to have better lives in the future.