History Book: Sandra Day O’Conner’s definition of liberty

NICK EICHER, HOST: Today is Monday, December 4th. Good morning! This is The World and Everything in It from listener-supported WORLD Radio. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Up next, the WORLD History Book.

As I mentioned a few minutes ago … retired Supreme Court Justice Sandra Day O’Connor died at age 93 on Friday. Justice O’Connor was the first woman to serve on America’s highest court, and at the time of her appointment that made an impression on teenage me.

As I read up on her at that time, I learned she’d put first things first … she stayed home with her kids for several years … and then would go on to a professional career! That helped me to prioritize competing interests when I had kids of my own. I’m grateful for her example.

She retired in 2005 after more than 24 years on the bench. WORLD’s executive producer Paul Butler now has more about her remarkable life.

PAUL BUTLER: Sandra Day was born on March 26th, 1930, in El Paso, Texas. She grew up on a 300 square mile ranch without a telephone or electricity. She loved horses and any other animal she could befriend. Audio here from a 2009 appearance on CBS’s David Letterman Show:

O’CONNOR: And I had different wild animal pets, like a little cottontail rabbit. And I, I tried to make a pet of a coyote and you just can't do it. And maybe the most successful wild animal pet was the bobcat and it was a good pet. It worked fine for years.

The down to earth rancher’s daughter attended Stanford Law School and graduated third out of 102 students—right behind classmate, one time boyfriend, and eventual Supreme Court colleague Chief Justice William Rehnquist.

In 1952 Sandra Day married fellow Stanford law student John Jay O'Connor III and had three sons.

Her legal career began as a Deputy County Attorney in San Mateo County, California…where she worked for a short time without pay and shared an office with the secretary.

She eventually became the Assistant Attorney General of Arizona in 1965 but left that job four years later to fill a vacant Arizona Senate seat, later becoming the first woman in the country to serve as a state Senate Majority Leader.

She left the Arizona legislature in 1975 to become judge of the Maricopa County Superior Court in Arizona—where she caught the attention of the Regan administration. During Regan’s campaign he promised to nominate the most qualified woman candidate he could find for the Supreme Court, and in 1981 he settled on Sandra Day O’Connor:

REGAN: She is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity and devotion to the public good.

But her appointment was roundly criticized by the young Moral Majority, and the growing pro-life movement, like National Right to Life president Jack Wilke. Audio here from CBS News:

WILKE: This is the most important appointment that President Reagan could make. We feel that it is one that we simply cannot tolerate.

One of the causes for concern was her support of an Arizona measure in 1970 that would have ended criminal prohibitions on abortions. Regan’s vetting team either missed it, or overlooked it, but it was brought up during her confirmation hearings before the U.S. Senate.

OCONNOR: My own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise. The subject of abortion is a valid one, in my view for legislative action, subject to any constitutional restraints or limitations.

Less than two weeks later, the Senate unanimously confirmed Sandra Day O’Conor as the 102nd Supreme Court justice.

The first case to test her judicial philosophy regarding abortion came two years later. Akron v. Akron Center for Reproductive Health

ALAN G. SEGEDY: There must be a determination whether or not there is a substantial burden on the woman’s right to choose.

It challenged Roe by limiting access to abortion.

SANDRA DAY O'CONNOR: Counsel, is the city relying on all four of the alleged state interests that you described in this instance?

In the end, the court reaffirmed Roe but O’Connor didn’t join with the majority. In her dissent she argued against Roe’s viability framework. She also thought a waiting period was appropriate—writing that the state's interest in protecting potential human life exists throughout the pregnancy regardless of when viability occurs.

By 1992 the makeup of the court had changed, and it looked as if it was poised to overturn Roe. Another abortion restrictions case was brought before the court: Planned Parenthood v. Casey. It asked if a state could require women to obtain informed consent, wait at least 24 hours before the procedure, and notify partners or parents without violating their rights.

In a surprising 5-to-4 decision, the Court reaffirmed Roe once again, and this time O’Connor joined with the majority imposing a new standard known as "undue burden"—or anything that proves a "substantial obstacle in the path of a woman seeking an abortion before viability." The opinion was authored by three justices: Kennedy, Souter, and O'Connor.

OCONNOR: Some of us as individuals find abortion offensive to our most basic principles of morality but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

O’Connor attempted to take the middle ground. Her decision ended up extending Roe for another 30 years.

FARRIS: I wouldn't call her a pro-abortion radical, but she was certainly not not pro-life.

Michael Farris is the former President & CEO of Alliance Defending Freedom and current legal counsel for National Religious Broadcasters.

FARRIS: And so she, you know, kind of tried to moderate the position from time to time and that's just simply not what was needed and not constitutionally correct.

According to Farris, O’Connor’s legacy is much broader than her conflicted stance on abortion. Over her 24 year career she authored more than 600 decisions and dissents. In his legal work with Alliance Defending Freedom—and as the founder of the Home School Legal Defense Association—Farris has frequently relied on two of her opinions.

The first comes from the 1990 case: Employment Division v. Smith, where Justice Scalia’s majority opinion greatly limited religious freedom, but O’Connor’s concurring opinion softened the blow:

FARRIS: She used the traditional standard of religious freedom as a high protected right where the state must have strong evidence to overcome the presumptions of religious freedom.

The second crucial decision Farris points to is her 2000 opinion in Troxel v. Granville—a parental rights case.

FARRIS: Justice O'Connor wrote the lead opinion, the plurality opinion in that case, say, parents rights are fundamental.

Many religious freedom and parental rights cases have been strengthened, appealing to O’Connor’s opinions.

In 2009 she reflected on her career in an interview with C-SPAN:

OCONNOR: I have been very privileged to be here and it was a great privilege and it enabled me to see from inside just what a wonderful institution the Supreme Court of the United States really is.

Sandra Day O’Connor died on December 1st of advanced dementia and a respiratory illness. She was 93. That’s this week’s WORLD History Book. I’m Paul Butler.

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