Sandra Day O’Connor – Practicality First

As part of Women’s History Month, I would like to revisit the Supreme Court’s first woman Justice: Sandra Day O’Connor. She is so much more than the historical trivia note to which she is often reduced. Educated at Stanford and appointed to the Court by then President Reagan, she served from 1981 to her retirement in 2006. She was as much an active voice behind the scenes as she was on the bench; apparently, she insisted that the Justices all eat lunch together, and would not take no for an answer.

Perhaps she is most often associated with her stance on abortion rights. She ultimately wrote the plurality opinion in Planned Parenthood v. Casey. Her opinion is carefully sought out and explained. It begins by defining the liberty at stake in these abortion cases, the right to be free from state compulsion on the ability to choose. Famously, she wrote “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Her writing is practical. Despite the elegant prose, her reasoning was grounded on stare decisis and the real-world impracticality of the three-trimester framework in Roe v. Wade.

Her views on practicality extended beyond abortion cases. Justice O’Connor also wrote a concurrence in McCreary County v. ACLU of Ky in which she stressed the practical implications of allowing the Ten Commandments to be displayed in a courtroom: “[w]hen the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders . . . .” In Grutter v. Bollinger, an affirmative action case in Univ. of Michigan School of Law, she found persuasive a multitude of studies produced by the University that showed benefits to education when the student body was diverse. She identified that these benefits were “not theoretical but real.” Her 25-year timeline to revisit the issue may have been overly optimistic, but that also underpins her faith in practicality—she may have hoped to see the effect of her decision, to see what her work had done, and whether more work was needed.

Justice O’Connor was certainly a first on the bench. She took into consideration the intimate effect of the Court’s decisions on the individual and what her decisions meant for the regular person. Perhaps no other Justice who has ever sat on our nation’s highest court has given as much thought to practical considerations.