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.
I understand that I am going to catch hell for this piece. I am a privileged, middle-aged white guy conducting a post-mortem critique of the first woman justice to serve on the Supreme Court, a jurist and scholar who was a damn sight smarter and more successful than I'll ever be. But before roasting me on your e-spits, I'll ask you to keep two things in mind: 1) my evidence consists of her own opinions, quoted below, so you don't have to take my word for it, and 2) I have spent my career representing people who are decidedly underprivileged; the ones who have to live with the consequences of opinions rendered by people who wear robes. So maybe the reader will grant me a little credibility here (and if not, see #1).
Four years after her 1981 appointment, O'Connor issued a ten-page dissent in Tennessee v. Garner. This case is not particularly well known, but I'd argue that it's one of the most important Fourth Amendment decisions in the nation's history. Edward Garner was a 15-year-old Black kid in Memphis who panicked and ran from officer Elton Hymon. The officer later testified that he thought Garner was "17 or 18." Since Garner didn't stop running when Hymon told him to, Hymon shot Garner in the back of the head. "Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse . . . were found on his body."
In one of the few correctly decided cops-and-robbers decisions of that era, the Supreme Court held that Hymon violated Garner's Fourth Amendment rights. O'Connor vigorously disagreed. She wrote:
By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.
Translated from the legalese, this means that cops should be able to execute fleeing children because, gosh, how else are they supposed to stop them? Had O'Connor's view been the majority, the police state we live in today would be even more perversely violent - difficult to imagine, but undeniably true.
Later in her tenure, she penned the opinion in Asahi Metal Industry Co. v. Superior Court. In that case, a man was badly injured in a motorcycle crash that killed his wife. The crash was allegedly caused by a foreign-made faulty tire valve. O'Connor held that the tire-valve manufacturer could not be sued, however, because "respondents have not demonstrated any action by Asahi to purposefully avail itself of the California market. " All it did was, you know, profit from the sale of products to California customers. For the Supreme Court, that wasn't enough. The effect of this opinion has been, and will continue to be, that foreign corporations can sell products that kill people in the United States and face no consequences, because it would be too burdensome.
Finally, in the 2005 case of Roper v. Simmons, the Court did away with the death penalty for offenders who were children at the time of their crimes. Again, O'Connor dissented. Just one year before her retirement, she wrote:
The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court’s moral proportionality analysis, nor the two in tandem suffice to justify this ruling.
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.
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Left-leaning pundits celebrate her for the same reason we celebrate most aspects of our legal system: She gave the appearance of positive change, just as, say, a lawsuit provides the appearance of the opportunity to be heard, even if the courts are, as a practical matter, closed to the vast majority of people. Lawyers appointed to indigent clients give the appearance of fairness, even if only 2% of all lawyers in the country devote themselves to legal problems of the poor (and those 2% are overworked in the extreme). Plea bargaining gives the appearance that a defendant voluntarily accepts responsibility for a crime, even if no crime was ever committed. You get the idea. This is how our legal system operates. Nice robes. Eloquent speech. Regal courtrooms with lots of marble and gold. Processes to excuse the most inhumane, cruel state action.
O'Connor made it look good. But to say she "modeled what it means to be a good person?" I dissent. She was the first woman on the Supreme Court, but the Supreme Court is still the Supreme Court: a fundamentally regressive institution built to protect capital, white supremacy, and the status quo. She was a tool of that institution. If she wasn't already that when a reactionary neocon president appointed her, she certainly was when she retired more than 20 years later in 2006, leaving her seat to be filled by the warmongering neocon she selected to be president. In my view, the above opinions alone demonstrate that whatever “warmth” or “common sense” O'Connor had was wholly eclipsed by a machine that rationalizes, sanitizes, and normalizes disregard for human rights, infinite deference to corporations, the state-sanctioned murder of children, and more. To be fair, just about everyone in her position has ended up the same way. But let's not pretend she was a meaningfully transformative figure, at least not in the way mainstream media would now have us remember.