She wrote the three-justice lead opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992). That opinion is noteworthy not for what it did, but for what it did not do. Although the question presented in Casey teed up the constitutional validity of five different provisions of the Pennsylvania Abortion Control Act of 1982, the main issue in Casey was whether Roe v. Wade, 410 U.S. 113 (1973), should remain good law. Despite the ripe opportunity Casey presented to overturn Roe, Justice O’Connor’s opinion in Casey upheld Roe’s basic premise (though not its trimester scheme). Her reason for leaving Roe intact was simple: The Supreme Court’s “legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation”; that legitimacy “must be earned over time” and “fade[s] with the frequency of [the Court’s] vacillation” away from prior precedent, such that the Court needs a “most compelling reason to reexamine a watershed decision” like Roe, which purported to resolve a “national controversy” and whose overruling could be perceived as “a surrender to political pressure”; and no such compelling reason had been offered. Casey, 505 U.S. at 866–68.
Justice O’Connor also wrote the majority opinion in Grutter v. Bollinger, 539 U.S. 306 (2003). The issue in Grutter was whether the University of Michigan Law School’s admissions policy violated equal protection because the policy permitted the school to continue diversity—including “‘racial and ethnic diversity’”—as one of many factors relevant to admission. Justice O’Connor wrote that “‘the attainment of a diverse student body’” was a compelling government interest and that the law school’s admissions policy was narrowly tailored to achieve that interest because it treated race and ethnicity as “a ‘plus’” in a “highly individualized, holistic review of each applicant’s file” rather than as a “quota.” Id. at 316, 324, 334, 337. But Justice O’Connor noted that Grutter’s holding had an expiry date, observing that the Court “expect[ed] that 25 years from now” (that is, by 2028), “the use of racial preferences will no longer be necessary.” Id. at 343.
And she wrote the decisions in New York v. United States, 505 U.S. 144 (1992), and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), which respectively addressed the allocation of power between the states and the federal government, and between the branches of federal government. In New York, Justice O’Connor struck down the portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985 in which Congress effectively issued the following mandate to the states: Participate in the Act’s scheme for disposing of low-level radioactive waste, or we will transfer title of that waste to you and hold you liable for any damages that flow therefrom. Id. at 152–54. That mandate, New York held, was an unconstitutional intrusion into the sovereignty of the states because it left a “state government no option other than that of implementing” the federally legislated disposal scheme, thereby “‘commandeer[ing] the legislative processes of the States.’” Id. at 161–62, 166, 177. In Hamdi, Justice O’Connor rejected the argument that the president’s grant of authority to “‘use all necessary and appropriate force’” against “‘enemy combatant[s]’” responsible for the September 11, 2001, attacks precluded any judicial challenge to a “citizen-detainee[’s] . . . classification as an enemy combatant”; she explained that “a state of war is not a blank check for the president” because “it would turn our system of checks and balances on its head.” Hamdi, 542 U.S. at 510, 533, 536. Justice O’Connor summed up the principles underlying both of these cases when she wrote in New York that “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.” New York, 505 U.S. at 187.
Justice O’Connor’s jurisprudential legacy, while substantial, may not be an enduring one. That is because precedent can—and sometimes is—overruled. Several aspects of Justice O’Connor’s jurisprudential legacy have already been dismantled since she stepped down from the Court in January 2006. In 2022, the Supreme Court issued Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), which overruled Roe and, in so doing, overruled Casey. And in 2023, the Court issued Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 143 S. Ct. 2141 (2023), which effectively overruled Grutter when it held the admissions policies at Harvard College and the University of North Carolina that considered race as one of many considerations relevant to admissions decisions no longer satisfied strict scrutiny under the Equal Protection Clause.
Justice O’Connor’s second legacy is her jurisprudential approach—that is, how she approached deciding cases (as opposed to the outcome of those cases as reflected in the opinions she wrote).
Justice O’Connor was both an incrementalist and a pragmatist. Far from an idealogue dogmatically adhering to a specific legal philosophy, Justice O’Connor often looked at how the legal rule to be announced in each case before her would affect the litigants in that case as well as the everyday lives of other Americans who would be forced to alter their behavior to conform to that legal rule. This approach resulted in her tending to prefer legal rules that called upon judges to balance several competing factors. Such rules—in contrast to so-called bright-line rules—were, by their very nature, more flexible and more cognizable of context. This characterization of Justice O’Connor’s jurisprudential approach is hardly insightful or novel; legal scholars have noticed the same for decades. See, e.g., Richard A. Epstein, The Property Rights Decisions of Justice Sandra Day O’Connor: When Pragmatic Balancing Is Not Enough, 1 Brigham-Kanner Prop. Rts. Conf. J. 177 (2012).
However, I was fortunate to see that approach in action. During the year I clerked, Justice O’Connor would convene informal conferences in her chambers every Saturday morning on the weeks before oral argument. At those meetings, she invited my co-clerks and I to hash out the litigants’ competing positions. During those meetings, Justice O’Connor was mindful of where the rule of law to be adopted would fit within the tapestry of the law but would inevitably call on us to discuss the real-world implications of that rule.
Justice O’Connor was also unfailingly collegial. She penned 135 dissents during her tenure on the Court. At their harshest, those dissents might be called pointed; but they were never personal, never mean, and never nasty. Early in my clerkship, I helped Justice O’Connor draft an opinion regarding the meaning of a federal rule of procedure. After she circulated the opinion, Justice Antonin Scalia circulated an acerbic dissent. I asked the justice how she wanted to respond; Justice O’Connor said, “That’s just Nino. Respond to his arguments but ignore the invective.”
Her collegiality toward the other members of the Court extended beyond her opinion writing. She instituted the tradition that the justices regularly meet for lunch. At first, the idea encountered some resistance. But she invited, she encouraged, and she cajoled. And in time, all eight of her colleagues attended, and those lunches remained a regular fixture during her tenure on the Court.
The legacy of Justice O’Connor’s jurisprudential approach persists only to the extent that other justices choose to emulate it. To the extent they do not, to the extent a judge is guided more by principle than practicality, to the extent collegiality is eclipsed by ideology or personal animosity, that legacy will also not endure.
Justice O’Connor’s third legacy—her historical legacy—is the most well known.
Born the daughter of ranchers living on the Arizona–New Mexico border, a young Sandra Day O’Connor grew up on the Lazy B Ranch until she started attending school and living with her grandmother in El Paso, Texas. She went on to graduate from Stanford University with an undergraduate degree in economics in just three years, and then graduated from Stanford’s law school. Despite graduating third in her class, Justice O’Connor could not find a paying job as a lawyer. The law firm of Gibson Dunn offered her a position as a secretary, but she declined. She ultimately started doing volunteer work for San Mateo County until they offered her a paid position. Many years later, after she and her family moved back to Arizona (following a stint in Germany), she served in the Arizona Attorney General’s office. In 1969, the governor of Arizona appointed her to an open seat in the Arizona Senate. She won reelection and, in 1973, went on to become the first female Senate Majority Leader anywhere in the nation. In 1975, she joined the Maricopa County Superior Court. In 1979, she was appointed to the Arizona Court of Appeals. She had served on that court for less than two years when President Ronald Reagan called.
Her appointment thrust her into the national limelight as the first woman appointed to the US Supreme Court. Although some criticized her nomination, see, e.g., Jerrold K. Footlick, A Woman for the Court, Newsweek, July 20, 1981, the Senate ultimately confirmed her 99-0, with nary a dissenting vote. Justice O’Connor spent the rest of her life in that limelight, and she was keenly aware of that ever-present scrutiny. More important than being the first female Supreme Court justice, she would say, was not being the last. She bore that scrutiny admirably, and unceasingly exhibited grace under what could only be called extreme pressure. In the late 1980s, she quietly battled breast cancer, never missing a day at the Court, taking the bench in the midst of treatments and wearing a wig to conceal her hair loss. And, in 2006, she retired from the Court to care for her husband John, who was suffering from Alzheimer’s disease. Less than a decade after his death in 2009, Justice O’Connor retired from public life completely, announcing that she, too, was suffering from an Alzheimer’s-like dementia. Her willingness to be candid and blunt about her condition called attention to the devastating impact of that disease.
Justice O’Connor’s deepest worry—that she not be the last woman on the Court—never came to pass. Justice O’Connor’s example paved the way for Justice Ruth Bader Ginsburg (who became a cultural icon unto herself as “The Notorious RBG”); the two served together for a dozen years. And after Justice O’Connor retired, Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson subsequently joined the Court. Almost half of the Court is currently occupied by women in part because of how Justice O’Connor acquitted herself in that position.
This legacy is hers and hers alone. And, unlike her first two legacies, it is sure to endure.
Her fourth legacy is her legacy as a person. During my clerkship and in the decades of mentorship that followed, I had the opportunity to see what type of person Justice O’Connor was. She was one of those rare people whose reputation (the shadow she cast, as President Abraham Lincoln put it) was largely a mirror image of her character (the person casting that shadow).
She was endlessly energetic. She started nearly every day at the Court with an exercise class—although it was strictly a “women only” class, which my female co-clerks were expected to attend and from which my male co-clerk and I were barred. She assiduously tended to her duties as a justice, but also regularly gave speeches and wrote articles. She maintained a very active social life during her entire tenure on the Court.
She was decisive but humble. One of the throw pillows on the sofa in her chambers was embroidered with the saying “Maybe in error but never in doubt.” In deciding cases, I saw firsthand how Justice O’Connor would turn cases over in her mind, looking at them from all sides. But once she came to a decision, that decision was made and she did not expend energy hemming and hawing about it afterwards. She rarely dwelled on regret but had the humility to be introspective. In 2017, Justice O’Connor was interviewed regarding her vote in Bush v. Gore, 531 U.S. 98 (2000), the decision that halted the recounting of ballots in Florida and, in so doing, declared George W. Bush the victor of the 2000 presidential election. The Bush majority she joined went out of its way to explain how it was “limited to the present circumstances” and hence should have no precedential effect, id. at 109, a result seemingly at odds with Justice O’Connor’s emphasis in Casey on the importance of precedent to the Court’s legitimacy. During that interview, Justice O’Connor said that she “sure” had regrets about her vote in that case, but she went on to add, in characteristic fashion, that “second thoughts don’t do you a lot of good.” Evan Thomas, First 339 (2019).
She was gracious. Every year, she planned a full day’s “clerks’ trip” that varied from fishing on the Chesapeake Bay to white-water rafting; she arranged for almost monthly sojourns to various locations around Washington, DC, from the cherry blossoms in bloom to the National Arboretum to special exhibits at many of the museums in town; and she opened her home to her clerks for Thanksgiving if they did not go home for the holiday. And after her clerks left her chambers to start their legal careers, she was ever ready and willing to provide career advice or life advice. When I finally told her that I had met the woman I planned to marry (when I was 36), her immediate reaction was to tell me it was “about time”; and when I took my soon-to-be-fiancée back to Washington, DC, to meet the justice for coffee, upon leaving, Justice O’Connor told me—and my fiancée—that she “approved.” To me, and to many of her former clerks, she was a lifelong mentor and surrogate mother.
That legacy made an indelible mark on everyone who came to know her.
Justice O’Connor’s final legacy is her legacy as a citizen.
Much like the Founding Fathers, Justice O’Connor understood that our Constitution will not protect itself and that the boundaries staked out by the structure of our Constitution require vigilance; they are meaningless if the voting public is unaware of them or unwilling to stand up when their elected officials transgress them. This is why Thomas Jefferson wrote that a “well informed” “people” are critical to representative government and why “education” is “the true corrective of abuses of constitutional power.” Justice O’Connor has long agreed with our Founding Fathers on this point: “[I]n the early days of the country,” she has remarked, “our leaders thought we had to teach our young generation about citizenship.” In her view, “that obligation never ends. If we don’t take every generation of young people and make sure they understand that they are an essential part of government, we won’t survive.” Alexander Heffner, Former Supreme Court Justice Sandra Day O’Connor on the Importance of Civics Education, Wash. Post, Apr. 12, 2012.
After her retirement, Justice O’Connor translated this concern into action. In 2009, she founded iCivics. iCivics is a nonprofit organization that has developed a series of educational games directed at middle school–aged students; these games, and accompanying support materials for teachers, are free and available online to be used as a teaching resource across the country. As the justice once wrote in a 2016 article:
There shouldn’t be anything that we care more about than educating our nation’s young people about our government. Good civic education will help them exercise their vote, and participate in our democracy, in an informed manner. It is our job to find better, more innovative ways to reach them. The future of our republic depends on it.
In a letter announcing her retirement from public life, Justice O’Connor reiterated her call to action: “It is my great hope that our nation will commit to educating our youth about civics, and to helping young people understand their crucial role as informed, active citizens in our nation.”
Justice O’Connor’s last two legacies will not endure on their own.
It is up to us to mentor the next generation of lawyers—to teach them how to be ambitious, decisive, humble, and gracious; to impress upon them that they are a part of a noble profession with a storied history; and to encourage them to take on the mantle of mentorship when their time comes. And it is up to us to teach the next generation of citizens how our democracy works, to impress upon them how fragile it is, and to inspire them to do what they can to protect it from the forces—without and within—that threaten to break it.
Consistent with her character as a person always striving to improve the world around her, it is no surprise that Justice O’Connor’s most important and most enduring legacies—as a person and as a citizen—are not something she left us.
Rather, they are something she left us to do.
