Sandra Day O’Connor, a Constitutional ‘Cowgirl’

The clairvoyant conservative with a solicitude for the role of religion was 93.

AP Photo/Scott Applewhite, File
Sandra Day O'Connor waves as she arrives at the Capitol. September, 1981. AP Photo/Scott Applewhite, File

With the death of Justice Sandra Day O’Connor, whom we greatly admired, America loses a jurist who turned out to be  a constitutional prophet. Writing in 2003 for the majority in Grutter v. Bollinger, she upheld affirmative action. Yet the court, she said, “expects that 25 years from now, the use of racial preferences will no longer be necessary.” Twenty years later, cases against Harvard and the University of North Carolina put paid to that.

Not since Herzl, in 1897, wrote in his diary that a Jewish state would arise in 50 year’s time, has there been such clairvoyance. We only met Justice O’Connor once, and only very briefly, at a dinner in Washington. We are told she was the most social of justices, eschewing cloistered chambers for a fully engaged life. Born at El Paso, she died at Phoenix, the last justice to have sat on the Burger Court. 

O’Connor was the first woman to accede to our highest court. She was nominated by President Reagan. She served for nearly 25 years. Chief Justice Roberts called her a “daughter of the American Southwest” and she once owned a rifle and took aim at coyotes and jackrabbits. At Stanford Law School, she was in the same class as Chief Justice Rehnquist. He proposed to her, but they were fated to share a bench, not a home. 

After a brief career in Arizona as a politician — rare for a judge— O’Connor set her eyes on the judiciary. She prospered there, and was nominated to the high court in 1981. Reagan wrote in his diary that “I think she’ll make a good justice,” and she did. Her confirmation vote was 99-0. The absentee was Senator Baucus of Montana, who apologized for his truancy. On the court she was a swing vote and a conservative with a maverick sensibility. 

We’ve appreciated in these columns O’Connor’s special solicitude for religion. In Grove Unified School District v. Newdow, a case concerning the phrase “Under God” in the Pledge of Allegiance, she found America to be a nation “founded by religious refugees.” She wrote that “certain ceremonial references to God and religion in our Nation are the inevitable consequence of the religious history that gave birth to our founding principles of liberty.” 

While the current court has followed O’Connor’s light on matters of religious conscience, in other realms her careful jurisprudence — it was called “The O’Connor Court,” sometimes — has not endured.  In 1992, in Planned Parenthood v. Casey, she swung with the majority to uphold Roe v. Wade, which the court eventually concluded was in error. The self-described “first cowgirl” to serve on the Supreme Court was, though, adept at lassoing votes.   

Through it all Justice O’Connor showed a wonderful spirit. We glimpsed this when she sat for the Painting Group, an assemblage of artists who had been gathering in New York once a week to draw or paint a sitter. On the 50th anniversary of such sessions, they invited the justice, from whose sitting something like two dozen paintings emerged. The sitting was filmed for what became the documentary called “Portraits of a Lady.”

We carried half a dozen of the pictures on the front page of the print edition of the Sun. The National Portrait Gallery at Washington mounted an exhibition of the paintings, at which O’Connor spoke. She said, in a good spirited ribbing of the artists, that the experience had taught her one thing — which is that we don’t really know what our Founding Fathers looked like. Let us just say, the justice wasn’t blind.

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Correction: The Painting Group is the name of the assemblage of artists who gathered every week in New York to paint and for whom Justice O’Connor sat for the 50th anniversary of the tradition. The name of the group was given incorrectly in the bulldog.


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