'She would not have tolerated that': Sandra Day O'Connor wouldn't approve of today's court

When Arizona’s longtime Sen. John McCain died in 2018, it may have seemed to some as though the Reagan-era Republican Party departed with him.

The death of retired Supreme Court Justice Sandra Day O’Connor on Friday also comes at a pivotal moment for the institution the former Arizona legislator and jurist revered.

Buffeted by reports of ethically questionable conduct, principally by O’Connor’s friend and colleague, Justice Clarence Thomas, the court recently put forth its first ethics policy. It was widely decried as toothless, and public opinion has not bounced back since last year’s ruling that wiped away federal abortion rights.

That is not the way O’Connor would want the court to be seen, say at least some of those who knew her, worked with her, and followed her career.

“However naïve you may think this is, she believed in the concept of a judge calling balls and strikes and nothing else,” said Gary Francione, a Rutgers University law professor who clerked for O’Connor in the 1982-83 term.

“She believed that to her toes, believe me. She really did. … I think she would be really disappointed with what’s going on in the court as it is now.”

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Carl Tobias, a law professor at the University of Richmond, agrees.

“I don’t want to put words in her mouth because that would be presumptuous,” Tobias said. “But I’m sure she would be distressed by all these issues, the questions of ethics. I think she always had the highest of standards and was exemplary in that way. I’m virtually positive she would have been distressed by that.”

A series of reports by ProPublica revealed that for years Thomas traveled across the country and abroad in trips paid for by Harlan Crow, a Republican megadonor. Thomas didn’t disclose the trips, which involved Crow’s yacht and private jet.

Crow also bought Thomas’ childhood home, allows Thomas’ mother to live there and paid for two years of school tuition for a grandnephew raised by Thomas.

The New York Times reported that Thomas received a previously undisclosed 1999 loan for $267,000 he used to buy a used luxury RV. The loan came from Anthony Welters, a friend and health care executive, and was discharged without clear evidence of how much, if anything, Thomas paid, the Times reported.

Thomas also remained involved in cases dealing with the disputed 2020 presidential election and the Jan. 6, 2021, riot at the U.S. Capitol even though his wife worked to overturn the results of the election.

While Thomas has been the most glaring source of ethical concern, he is not the only justice facing such scrutiny.

Justice Samuel Alito didn’t disclose a 2008 private jet flight to Alaska for a hedge fund billionaire who later had cases before the court, ProPublica reported. Justice Sonia Sotomayor’s staff urged colleges where she spoke to purchase hundreds of books that helped boost her royalty payments, the Associated Press reported.

The court announced last month it had adopted an ethics code, in a move it said was to counter “the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

But the Times noted that the code doesn’t place specific restrictions on gifts and travel. Crucially, it also was vague about how any of the code’s provisions would be enforced.

The code arrived as the court’s public approval was at a low ebb.

The polling firm Gallup has tracked American approval ratings for the Supreme Court since 2000 and trust in the judicial branch since 1972.

By both measures, the court seems at a low ebb.

In September 2000, 62% of respondents approved of the job performance of the Supreme Court. It remains the highest approval rating the public has registered in that poll’s history.

The court’s ratings have moved up and down in the years since but have mostly stayed near 40% for the past two years.

Public trust in the courts only dipped below 60% once between 1972 and 2020. In the past two years, public trust fell below 50%.

Pew Research has done its polling on the Supreme Court since 1987. It found that 80% of respondents had a positive view of the court in the mid-1990s. As of this summer, it sat at 44%. For the first time in the poll’s history, the public has a net negative view of the court, Pew found.

Perhaps more worrisome is the partisan split Pew’s polling detected. The gap between those who lean Republican and those who lean Democratic had widened to 44 percentage points, a record disparity.

ABC News found a similar trend in recent polling on the subject.

In April, polling for PBS and NPR found that 62% of the public had either not very much confidence in the court or less. It was a record low in the five years of such polling.

Evan Thomas, author of “First,” O’Connor’s authorized biography, said O’Connor likely would be displeased to see Thomas at the center of so many controversies affecting the court’s image. She took a special interest in him following the spectacle of his 1991 confirmation hearings that included allegations of sexual harassment from Anita Hill, a former colleague.

“Justice Thomas is significant because they were very close buddies,” Thomas said.

“He told me that when he was confirmed, he didn’t want to go to those court lunches they have every week. He was feeling battered, 'hammered,' he put it. And she made him go to lunch.

“He has told me she was the glue. The reason this place was civil was Sandra Day O’Connor. And he has subsequently said that the court is a family. It may be a dysfunctional family sometimes, but it’s a family. And not so much these days.”

Thomas said that when O’Connor was first named to the Supreme Court, she asked her husband, John, to review the docket with an eye toward whether there were any potential conflicts of interest.

“John gave it a quick look at the cases and said, ‘No problem here.’ She said, ‘No, wait a second,’ and she made them go back and look more closely. She did weed out a couple of cases as I recall. She was scrupulous about that.”

Francione acknowledged disagreeing with O’Connor on many occasions as a law clerk and as a lawyer.

Among them was Bush v. Gore, the 2000 case in which O’Connor joined the 5-4 majority that effectively handed George W. Bush the presidency by halting the recounting of ballots in Florida. The ruling notably rejected a states’ rights argument, an area typically appealing to conservatives, for a claim on equal protection, something usually more in line with liberals’ judicial outlook.

The Wall Street Journal reported at the time that John O’Connor had told people his wife would be “reluctant” to retire in an Al Gore presidency.

“Do I think she should have decided that way given her fidelity to states’ rights? The answer is no. I don’t think what she did was unethical,” Francione said. He acknowledged he was troubled by reports that she may have wanted a Bush presidency for personal reasons.

“I’m not going to lie, there are things that one could say about that that are not great,” he said. “But was it dishonest? No.”

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Thomas said O’Connor worried about the court’s image after the divisive decision in Bush v. Gore.

Tobias recalled that O’Connor twice visited his students when he taught in Montana as part of the accessibility and transparency she viewed as a key part of her job.

“What we’ve seen in the period of time since she left the court it seems the justices have not always lived up to her standards,” he said. “We don’t have all the details, and probably never will. But there’s been enough to be concerned. … She would not have tolerated that.

“If you look at her public service, it was always about doing the people’s work in the most transparent, comprehensive, careful way. Those were her hallmarks."

This article originally appeared on Arizona Republic: Sandra Day O'Connor: People who knew late justice discuss her ethics