The World and Everything in It: December 4, 2023

PREROLL: The World and Everything in It is made possible by listeners like us. My name is Scott Roberts and I'm listening from Tamil Nadu, India where I have the privilege of investing in pastors’ marriages and helping them learn how to raise disciple makers in their church. I love the fact that I can listen to The World and Everything in It, no matter where in the world I am in it. I hope you enjoyed today's program.

MARY REICHARD, HOST: Good morning! Today a Fifth Amendment question.

A jury finds a man both guilty and not guilty, but a retrial is ordered. Is that double jeopardy if the jury’s finding was no actual verdict.

PETRANY: These incoherent, contradictory statements do not constitute a verdict in the first place.

NICK EICHER, HOST: That’s ahead today on Legal Docket.

Also today the Monday Moneybeat: despite everything, we’re breaking records on domestic oil production.

And the WORLD History Book. Today, the life and legacy of retired Supreme Court Justice Sandra O’Connor.

REAGAN: She is truly a person for all seasons

REICHARD: It’s Monday, December 4th. This is The World and Everything in It from listener-supported WORLD Radio. I’m Mary Reichard.

EICHER: And I’m Nick Eicher. Good morning!

REICHARD: Up next, Kent Covington with today’s news.

SOUND: [Air raid sirens]

KENT COVINGTON, NEWS ANCHOR: Gaza fighting » Air raid sirens blare in Tel Aviv as Israel and Hamas trade rocket fire.

But Gaza is once again at the center of the firestorm,

SOUND: [Airstrike]

after a weeklong cease-fire between Israel and the terror group Hamas collapsed over the weekend.

SOUND: [Missile strike]

Airstrikes shaking the ground in southern Gaza as the Israeli Defense Forces — or IDF — penetrate deeper into the territory, targeting Hamas strongholds.

The IDF says recent strikes have hit weapons manufacturing sites and tunnel entrances … and have also killed another prominent Hamas commander.

NETANYAHU: [Speaking Hebrew]

Israeli Prime Minister Benjamin Netanyahu says, “We will continue the war until we achieve all its aims,” and that means the total annihilation of the terrorist group.

Gaza hostages » But as the IDF shifts focus to the more densely populated southern region. The U.S. government continues to pressure Israel to do all it can to minimize the civilian toll of the war.

National Security Council spokesman John Kirby says Israeli forces are taking steps to do that.

KIRBY: They have actually given civilians in Gaza, a list, a map that's online, where a list of areas where they can go to be more safe. There's not too many modern militaries in advance of conducting operations that would actually do that. So they are making an effort.

Still, U.N. officials say Gaza residents are running out of refuge.

Kirby says the U.S. government and others are working hard to try and revive the cease-fire to secure the release of more hostages.

But Hamas has reportedly declared that it will not free any more captives until the war is over.

Ships attacked » Meantime, on Capitol Hill Republican lawmakers are demanding stronger action against other Iran-backed militants in the Middle East.

A U.S. warship in the Red Sea opened fire in self-defense Sunday after Houthi rebels in Yemen attacked commercial vessels with drones and missile strikes.

Republican Sen. Pete Ricketts:

RICKETTS: What you have to have is a strong strategy. I think that since October 17, there have been 75 attacks by Iranian-based proxies on our soldiers, not just these Houthi attacks these add to them, and we've had very little response back and that's what we have to change.

The Houthi attacks damaged two commercial ships.

Border » Lawmakers in the Senate are trying to pass a bill to address the crisis on the U.S. southern border. But Republicans and Democrats are nowhere close to a deal.

GOP Congressman Mike Turner says the House is also trying to tackle the crisis.

TURNER: Americans overwhelmingly want the southern border addressed. It represents a national security threat, as his own security advisers are telling him. We can’t have millions of people continue to cross our border.

In a remote part of Arizona, so many migrants are crossing the border illegally that officials are shutting down a nearby border crossing. That’s so that the agents who staff the checkpoint can help patrol open areas.

Cartels and smugglers, exploiting gaps in the border wall, have turned the desert crossing around Lukeville into a major migration route.

DeSantis / debate » Ron DeSantis has made good on his campaign promise to visit each of Iowa’s 99 counties completing the whirlwind over the weekend.

DESANTIS: I’m asking for your support in the Iowa caucuses. We are going to win, and when we do, that is going to change this country for many, many years to come.

DeSantis recently won the endorsement of Iowa Gov. Kim Reynolds, and he’s counting on a big showing in the Hawkeye State.

He’s running a distant second in GOP polls, trailing Donald Trump by 30 points in Iowa and by nearly 50 points nationally.

Trump’s Republican rivals for the presidency will debate for a fourth time this coming Wednesday in Alabama.

Church attack » At least four people are dead after a bomb detonated during a church service in the Philippines. WORLD’s Josh Schumacher has more.

JOSH SCHUMACHER: The Philippines’ president initially said foreign terrorists were behind the bombing which struck a Catholic mass in a university gymnasium in the city of Marawi.

ISIS later claimed responsibility for the attack which also wounded dozens of people.

The terror group has been active in the region for years.

For WORLD, I’m Josh Schumacher.

I'm Kent Covington.

Straight ahead: double jeopardy and immigration law on Legal Docket. Plus, the Monday Moneybeat.

This is The World and Everything in It.

NICK EICHER, HOST: It’s The World and Everything in It for this 4th day of December, 2023. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

On Friday, retired Supreme Court Justice Sandra Day O’Connor died. We have a feature focus on Justice O’Connor in just a few minutes and I’ll share a quick personal reflection, but first it’s time for Legal Docket.

For now, two oral arguments the U.S. Supreme Court heard late last month.

EICHER: First, McElrath v Georgia, a case about double jeopardy. That’s in the Fifth Amendment to the US Constitution. It prohibits anyone from being prosecuted twice for the same crime. There’s a caveat; That protection attaches only for prosecutions by the same sovereign. So that means federal and state governments can prosecute a defendant separately for the same conduct without violating the double jeopardy rule.

REICHARD: In this case, the legal proceedings are all in Georgia, the same sovereign. The legal question? What is a final verdict for purposes of double jeopardy?

Here are the facts. Eleven years ago, 18-year-old Damian McElrath stabbed to death his adoptive mother. A jury found him not guilty by reason of insanity on the most serious murder charge, called malice murder in Georgia.

The jury also found him guilty but mentally ill on a lesser-level murder charge called felony murder.

The difference between the two has to do with the mental state of the accused. Insane on one count, mentally ill on the other. For the same crime.

EICHER: The state courts saw this as incoherent. How can a person be both guilty and not guilty of the same alleged murder? One or the other, yes. But not both.

It may be the jury wanted to convict on the lesser offense. Regardless, the lower courts called the inconsistent verdicts “repugnant” and vacated both, authorizing a retrial.

McElrath’s lawyer Richard Simpson argued this is plain old double jeopardy:

SIMPSON: The most fundamental principle of double jeopardy law, going back hundreds of years before even the adoption of the Constitution, is that if a jury in a court with jurisdiction returns a verdict of acquittal, that verdict is final. The defendant may not be subject to a second prosecution ever. No questions. End of discussion.

A long line of Supreme Court precedent upholds that idea, too. Therefore, he argued, Georgia can’t come after McElrath again for this crime.

REICHARD: On the other side arguing a retrial is proper, Georgia’s Solicitor General, Stephen Petrany.

He argued that states have the right to determine their own criminal procedures. Inconsistent verdicts aren’t really verdicts anyway. They’re just midway steps in the long trial process.

PETRANY: Petitioner Damian McElrath assumes again and again that there was a verdict in this case, but that's simply not true according to state law as determined by Georgia's highest court. Under Georgia's narrow, sensible repugnancy rule, a jury cannot issue special affirmative findings that facially contradict each other. These incoherent, contradictory statements do not constitute a verdict in the first place. They don't resolve the factual inquiry.

Going on to say it’s true other states have different rules. But Georgia’s repugnancy rule is a reasonable way to respond to a rare circumstance and make sure the fact of McElrath’s sanity or insanity is determined at trial.

That didn’t seem to carry the day, though.

Here’s Justice Elena Kagan addressing Petrany for Georgia:

JUSTICE KAGAN: I mean, when a jury comes back with inconsistent verdicts, we don’t really know what happened. I mean, one possibility of what happened is the jury made a humdinger of a mistake. Another possibility of what happened is that the jury made no mistake at all, but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show.

EICHER: Petrany pushed back. Just because you don’t know what a jury might be trying to do doesn’t mean we just assume it’s a good thing.

Justice Neil Gorsuch had a rejoinder to that:

JUSTICE GORSUCH: Well, the founders certainly thought it was important. And, you know, go back to the trial of John Zenger, he was guilty as heck and yet the jury acquitted him and that was considered one of the great moments in American history leading up to the adoption of -- of the Seventh Amendment. And so I guess Justice Kavanaugh and I think Justice Kagan have put their finger on it. The minute you admit that it could be a product of leniency or compromise, we're done, aren't we?

PETRANY: Well, Your Honor–

GORSUCH: Because then -- then we have to respect that verdict regardless of whether we think it's rational or what we would do. It's supposed to be a check on -- on us judges and you prosecutors.

John Peter Zenger was a German printer and journalist in New York City in the 18th century. The royal governor of New York accused him of libel. At that time, English common law did not allow truth as a defense for libel. In that sense, Zenger was guilty. But a jury acquitted Zenger and established the principle that truthful information cannot be libelous.

Try as he might, Petrany’s attempt to distinguish the verdicts so that a retrial could be had, didn’t seem to be working.

For now, McElrath remains in Cobb County Jail. His lawyers say what he needs is mental health treatment, not punishment.

REICHARD: Alright, on to the second and final argument today, in a case called Wilkinson versus Garland.

Situ Wilkinson came to the U.S. from Trinidad on a tourist visa. He stayed longer than permitted, and was eventually arrested for dealing in crack cocaine. That arrest triggered deportation proceedings.

Wilkinson sought to stop that, citing hardship on his U-S born son and the threat to his own life if he returned to Trinidad.

EICHER: The immigration judge and appeals board rejected those claims. So did the US Court of Appeals for the Third Circuit, reasoning it had no authority to address a discretionary decision of the courts below.

This, even as Wilkinson met the criteria for a hardship waiver.

REICHARD: So now the U.S. Supreme Court must decide: can federal courts review an immigration judge’s decision that a noncitizen isn’t eligible for a “hardship exception?”

Typically, courts are limited in reviewing agency decisions.

But Wilkinson’s lawyer says not in his client’s situation. Here’s lawyer Jaime Santos mentioning the INA, the Immigration and Nationality Act.

SANTOS: The INA limits review of denials of discretionary relief, but it permits review of questions of law. And as this Court held in Guerrero-Lasprilla, the statutory term “questions of law" includes the application of legal standards to settled facts. Even the Board agrees that exceptional and extremely unusual hardship is a legal standard.

Justice Brett Kavanaugh pointed to court precedent:

JUSTICE KAVANAUGH: Well, this is now Groundhog Day from Guerrero because we talked about the history of St. Cyr and how the decision there recognized and the subsequent congressional history recognized that applications of law to fact would be considered questions of law.

EICHER: Justice Samuel Alito seemed more convinced by the government’s argument, as any judgment involves putting law to facts. As such, every agency decision is reviewable by a court.

JUSTICE ALITO: It swallows up the exception completely.

Justice Sonia Sotomayor took exception to that.

JUTICE SOTOMAYOR: We permit review not for the majority of cases. We permit review for the exceptions.

Justice Alito wasn’t letting it go. Suppose you asked someone who’s not a lawyer whether an alien did something within a certain period of time. Did that alien exercise due diligence?

ALITO: I mean, the ordinary person who's not a lawyer would say, I can't answer that question because it's a legal question. It has to do with legal procedures. But, if you ask an ordinary person, you set out a certain set of facts. So let's say I'm complaining about my workplace, it's cold, it's set at 63 degrees, there isn't any coffee machine, the boss is unfriendly, all my coworkers are obnoxious, and you say am I experiencing (Laughter.) No, I'm not – (Laughter.)

SANTOS: Okay. (Laughter.)

ALITO: Any resemblance to any living character is purely -- purely accidental. (Laughter.) Is that unusual or except -- am I suffering unusual and exceptional hardship? An ordinary person could answer that question and they could say, oh, come on, you know, that's work, suck it up, right? So is that a -- is -- is that a difference between these two situations?

SANTOS: Well, first, that this is still a statutory term that Congress chose, right? So this is the standard that Congress set. So I think you'd still have to determine what Congress meant when it -- when it used these specific terms. So that's still --

ALITO: It meant what the terms mean. These are ordinary terms. You can look them up in the dictionary.

SANTOS: And that is --

ALITO: People don't even need to look them up in the dictionary.

REICHARD: Still, I think Justice Elena Kagan expressed what the majority of justices were thinking. Listen to her references to precedent in these comments to Colleen Sinzdak, Assistant to the Solicitor General, for the United States.

KAGAN: We said, you know what, we don't really care if it's primarily factual. We don’t really care if it involves a lot of judgment calls. We don't really care if you have to really kind of search for the legal standard in the inquiry. As long as there is that legal standard, and as long as all the fact finding that you do and all the fact weighing that you do eventually has to satisfy that legal standard, and the question is whether it does, it's a mixed question and it's reviewable. That's how I read that decision. You're just, you know, basically saying you don't like it.

Yikes! No lawyer wants to hear that. I think a majority of justices will expand the scope of judicial review in deportation cases.

And that’s this week’s Legal Docket.

MARY REICHARD, HOST: Coming up next on The World and Everything in It:The Monday Moneybeat.

NICK EICHER, HOST: Alright time now to talk business markets and the economy. Financial Analyst and advisor David Bahnsen joins us. He's head of the wealth management firm, the Bahnsen Group, and he joins us now. David, good morning.

DAVID BAHNSEN: Well, good morning, Nick, good to be with you.

EICHER: Well, David, I'd like to begin today talking about energy production in the U.S. Big story just a few days ago in The New York Times, and I will quote: "Only three years after U.S. oil production collapsed during the pandemic, energy companies are cranking out a record 13.2 million barrels a day. That is more than Russia or Saudi Arabia. The flow of oil has grown by roughly 800,000 barrels a day since early 2022. Analysts expect the industry to add another 500,000 barrels a day next year. Now this is a Republican talking point that we in the GOP are going to bring energy independence. The Democrats all they talk about are energy sources decades into the future, if ever. But in reality, it appears the Biden administration is out-drilling the Republicans. How can that possibly be?

BAHNSEN: A lot of it is in the setup of things. The Biden administration doesn’t drill oil, the companies drill oil, and the decision to increase or decrease production is made at the corporate level. But then there is a governmental influence on it.

Right now you’re getting over 13 million barrels a day despite the various impediments to production, not because of them. The government can’t stop a certain degree of extraction from already permitted land where there’s already rigs, but they can discourage the ongoing growth of oil production by not allowing drilling on federal land and by refusing to give new permits for new wells or new rigs.

Ultimately, the reason domestic production is outdoing Saudi production is because we had been underproducing in terms of demand to the degree that OPEC+ just said, “we’re not going to stand for it.” Domestic producers backed off of their production to see prices go higher. And their argument was that if the federal government of the United States was not going to refill the strategic petroleum reserves that they flooded the market with last year to keep prices down, we’re not going to do our part to keep prices down. So there is a lot of blame to go around, and the Biden administration has been very discouraging of new ongoing investment in infrastructure for oil and gas.

But it is true that the Republican talking point lacks the nuance I wish it would’ve had, but nuance doesn’t do really well with regard to political talking points. And it doesn’t do really well in media headlines sometimes either. Ultimately, the issue is not the absolute number of barrels being produced. It’s the number of barrels being produced relative to demand. You can be producing 12 million barrels and be over producing, and you can be producing 13 or 14 million and be under producing. And that’s the issue: We have to produce to the level necessary to clear demand. And our oil and gas producers firstly want to avoid over producing because they’ve been burned twice in the last decade by over investing in production then having the market go south and it becoming a really horrid situation for their financial structure. But secondly you have the ESG movement, the political and cultural incentives and influences. They’re all anti-fossil. There’s a lot of factors at play. But the basic talking point that we’re now producing high levels oil, that’s true, we are now producing more, but we’re producing more despite these things, not because of them.

EICHER: Well, you mentioned the Strategic Petroleum Reserve, David, and you've been critical of drawing it down as has been done. Do you think that now is the time to start refilling it?

BAHNSEN: Well, you can’t refill 300 million barrels at once in this case. They’re only going to be able to do a few million at a time without moving the price. And I think that if the price were anywhere in the 70s—and earlier in the year it was in the high 60s—I’d be taking nibbles at trying to refill. And I don’t want to overly complicate this (and I don’t say anything to defend this administration on energy policy, I think they’ve been abysmal,) but it is also true that in addition to the fact that they haven’t done it or had the will to refill it, there’s a difference between the price in the 70s, where it may be and then the refiner spreads. And that’s part of the issue: The oil that has to go back to the strategic petroleum reserves is of a different grade. So that pricing differential matters, too, and that gets a little more confusing.

EICHER: Alright, David. We're into the first full week of December, so you've had a little bit of a chance to review the month of November for the stock market. Looks like stocks have erased the summer swoon and had their best month of the year, then followed up Friday, December 1 by setting another new high. It's going pretty well in the stock market, isn't it?

BAHNSEN: Yeah, it was an unbelievable month of November. And then as we go into the month of December here, there is still heavy dependency on just a very small number of companies that are quite expensive. I wrote a whole piece at Dividend Cafe that was published over the weekend that deals with the valuations of artificial intelligence and the challenges for investors trying to go into that space. But the overall market had a heck of a month in November and looks like it’s going to finish the year in pretty good territory.

EICHER: Okay, so before we go, David, another story moved last week, a revision to Q3 Gross Domestic Product. And normally, I wouldn't bother you with the GDP revision, but this one kind of caught my attention. And it did dominate the wires because of the figure, a revision upward to 5% annual economic growth in the July, August, and September quarter. That's quite a number. And it's really what you want to see. And again, I hesitate to bring it up, because it's basically a mathematical adjustment of a thing we've already talked about. But as I say, 5 caught my eye. Does it have any significance to you?

BAHNSEN: Well, the story doesn’t have significance to me simply in the revision. It was a significant story just in what it was originally, which was that the GDP number was much higher than expected. It’s important for people to realize that these quarterly numbers are being annualized. It isn’t like they’re saying, “Wow, we were up 5% in the quarter so that means 20%, annualized.” They’re taking the quarterly number and analyzing it. And yet, it’s a big deal relative to the predictions of those who thought we were going to be in a recession at this time, whereas now you’re getting some of that highest growth in the GDP number that we have seen in a long time.

However, as we talked about when the original number came out—more important than the revision itself—the importance is in the source of that growth. Basically, the consumer part is always pretty strong, and it was strong. And you know my bias around the fact that I don’t believe the consumer weakens very often in America. It takes really a removal of credit, or a big decline of income for our consumers in this country to show as a slow down in spending. So then you have to look to the business investment, government spending, and then inventories. And the inventory issue was really where a lot of this came from. And that is highly transitory, in that you can have an inventory build up that adds to GDP one quarter and then removal or reversal that takes away the next quarter. So I don’t generally get real excited about it, and when that’s the source of GDP growth, and ultimately, when I don’t see a big move up in non-residential fixed investment (which is business CapEx investment) then I don’t view a lot of it as being likely sustainable.

But out of the CHIPS Act, and the infrastructure bill—some of these government spending programs—there is a certain amount of money that has come into the economy that has that investment that will help to bring those numbers higher. So it shouldn’t be a surprise that that is useful to GDP in the short term.

But of course, in the long term, the question is, “What was the cost?” You can’t pull money from one source of the economy to move it into another source and think you got a free lunch. This is economics 101. But I don’t think that there is a surprise that in the short term, some of those governmental spending programs are adding to GDP right now, but they will take away from GDP in the future.

EICHER: Okay, David Bahnsen is founder, managing partner, and chief investment officer of the Bahnsen Group. You can keep up with David and his personal website, that is bahnsen.com. His Weekly Dividend Cafe you can find at dividendcafe.com. David, thank you so much. We'll see you next time.

BAHNSEN: Thanks so much, Nick.

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.

NICK EICHER, HOST: Tomorrow: A setback for religious liberty in Washington State … we’ll talk about a case involving Christian aid group World Vision and sex discrimination in hiring. And, the Classic Book of the month, a series of animal adventure stories for children.

That and more tomorrow. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

The World and Everything in It comes to you from WORLD Radio. WORLD’s mission is biblically objective journalism that informs, educates, and inspires.

The Apostle Paul wrote to fellow Missonary Timothy: For the time is coming when people will not endure sound teaching, but having itching ears they will accumulate for themselves teachers to suit their own passions, and will turn away from listening to the truth and wander off into myths. As for you, always be sober-minded, endure suffering, do the work of an evangelist, fulfill your ministry. II Timothy 4: 3-5

Go now in grace and peace.

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