Sandra Day Late

Retired Justice O’Connor regrets the Supreme Court’s lurch to the right. So why didn’t she stay and prevent it?

Retired U.S. Supreme Court justice Sandra Day O'Connor delivers the keynote speech during a conference at the Georgetown University Law Center in Washington January 26, 2010.

Retired Supreme Court Justice Sandra Day O’Connor is acting as though she wasn’t on the court when it decided Bush v. Gore.

Photo by Kevin Lamarque/Reuters

Justice Sandra Day O’Connor should never have retired from the Supreme Court. She is an 83-year-old with plenty of energy, which she expends hearing lower-court cases, giving speeches, and making me want to tear my hair out by talking like the sensible moderate-liberal she refused to be consistently on the court. Why didn’t O’Connor voice these views when she had power?

I’m prompted to my hair tearing by O’Connor’s statement to the Chicago Tribune Editorial Board that, oh, maybe it wasn’t such a hot idea for the Supreme Court to have decided the 2000 presidential election by taking Bush v. Gore and issuing the ruling that ended the Florida recount. Here are her musings, as the Tribune reported:

“ ‘It took the case and decided it at a time when it was still a big election issue,’ O’Connor said last Friday. ‘Maybe the court should have said, “We’re not going to take it, goodbye.” ’
The case, she said, ‘stirred up the public’ and ‘gave the court a less-than-perfect reputation.’
‘Obviously the court did reach a decision and thought it had to reach a decision,’ she said. ‘It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.’ ”

What is with that weird disembodied “it”? That word allows O’Connor to distance herself from a decision she was very much a part of. Replace every “it” with “we.” Or even with “I,” since O’Connor could have swung the 5-4 ruling in the opposite direction by switching sides.

I suppose, since it takes only four votes to take a case (as opposed to decide it), that it’s in the realm of possibility that O’Connor voted against the decision to hear Bush v. Gore in the first place, and only came around to the conservative position once that bridge had been crossed. But who cares? What matters is that she’s right: The Supreme Court did “add to the problem at the end of the day” by imperiously swooping in to decide a matter that was properly in the hands of the Florida courts and the Florida recount procedure. Bush v. Gore made observers across the political spectrum fear that the court had turned itself into a political tool. To hear O’Connor recognize now that all of this was misguided is the definition of too little, too late. It’s a form of regret fit only for the Onion to parody.

If anything, O’Connor’s late expression of doubts makes her vote in Bush v. Gore seem all the more partisan. Especially since, as Linda Hirshman points out, O’Connor was on record as rooting for another Republican presidential candidate, George W. Bush’s father, in 1988. “I will be thankful if George B. wins,” she wrote to Barry Goldwater in 1988. “It is vital for the Court and the nation that he does.” Couple this with Newsweek’s report that at an election night party in 2000—yes, that’s the year George W. ran against Al Gore—O’Connor’s husband, John, reportedly said that his wife wanted to leave the court, but wasn’t eager to do so if a Democrat was in the White House. “This is terrible,” she reportedly exclaimed when CBS called Florida for Gore. Terrible enough to undo, apparently, even if that seems unwise with the benefit of hindsight.

In fact, what proved terrible for O’Connor’s legacy was Bush’s decision to appoint Justice Samuel Alito in her stead in 2006. The result, as Dahlia Lithwick has argued, has been to turn O’Connor from the most powerful justice to the Incredible Shrinking Woman. The conservative five-justice majority has backed away from her approach to abortion, voting rights, affirmative action, and campaign finance. After the court’s decision in Citizens United, in which it dispensed with spending limits for corporations and unions in elections (and granted corporations personhood), O’Connor said, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.” In all fairness, O’Connor isn’t turning coat on this one. She’d voted to uphold spending limits when she was on the bench. But if she’d made good on her regrets about Bush v. Gore when it counted, Citizens United could have come down differently, too.

O’Connor has taken on some worthy endeavors in retirement. She has spoken out repeatedly for judicial independence, including in support of Chief Justice John Roberts, when he was called a traitor after his vote to uphold Obamacare (it takes one to defend one?) and also when congressional Republicans railed over a court’s order to remove the feeding tube of brain-damaged Terri Schiavo in 2006. O’Connor has come out against judicial elections; her voice was even used for a robo-call to Nevada voters urging them to support a 2010 ballot initiative to replace the election of judges with merit selection (appointment by the governor, advised by a commission). She earned the wrath of a Wall Street Journal op-ed and afterward said she hadn’t authorized the use of her voice but defended her participation in the campaign. Hearing a case as a visiting appellate judge in 2010, she even cast the deciding vote in a 2-1 decision to strike down an Arizona law that required aspiring voters to show proof of citizenship when they register. Her former Supreme Court colleagues are reviewing that case this term.

Much of this makes me wish that the Sandra Day O’Connor who often held the fate of crucial questions in her hands during her 25 years on the high court were the same O’Connor who makes headlines in retirement. Imagine this: If O’Connor had kept the court out of Bush v. Gore, and Gore had won (not a foregone conclusion, but bear with me for a moment), maybe she wouldn’t have to go around ruing the day she stepped down. A Democratic president might have chosen a replacement closer to the middle-of-the-road Republican O’Connor was than the hard-core conservative Alito. Oh well. O’Connor can’t make law anymore. All she can give us now is tantalizing what-ifs.