Justice O'Connor deserves little honor

Posted: June 05, 2013

SANDRA Day O'Connor, the first woman appointed to the U.S. Supreme Court, is now retired and on a lecture tour of the country. She is scheduled to speak at the Philadelphia Bar Association meeting on June 12.

Does Justice O'Connor's Supreme Court career merit all the honors now bestowed upon her?

Justice O'Connor recently authored a book on Supreme Court stories that has been panned on literary grounds but which should not obscure the more profound truth that the first female justice was no friend of women or minorities.

Pennsylvania should be especially sensitive to her work on the court. As a lead author of the 1992 opinion in Planned Parenthood v. Casey, she upheld all restrictions but one imposed by the Pennsylvania Legislature on a woman's right to abortion on the ground that they did not amount to an "undue burden" on that fundamental constitutional right guaranteed in the landmark case of Roe v. Wade. Justice Harry Blackmun, the author of Roe, disagreed and found the restrictions so harsh as to make it practically impossible for many women to get an abortion in Pennsylvania. In effect it overrules that fundamental right.

The current campaign throughout the nation to restrict abortion - really, to abolish it - proves Blackmun right. It stems from the Casey decision.

The only Pennsylvania restriction not accepted by Justice O'Connor was that the woman must notify her spouse, because that may subject her to violence.

Justice Samuel Alito, then on the U.S. Court of Appeals in Philadelphia, said that that restriction also was acceptable. That apparently qualified him for appointment by President George W. Bush to the Supreme Court to replace Justice O'Connor when she retired in 2006.

In 1986 in Bowers v. Hardwick, Justice O'Connor voted against gay rights. Seventeen years later in Lawrence v. Texas, the court overruled Bowers as wrong when decided, but O'Connor reiterated her view and has never recanted.

As to affirmative action, she agreed that the University of Michigan Law School could take race into account to advance diversity in education, but rejected the undergraduate provision to award points in admission for the same purpose. In 1986, Justice O'Connor rejected minority preferences in layoffs of public-school teachers to ease the hardship on minorities who were the last hired and first fired.

In 1989, Justice O'Connor struck down the plan of the city of Richmond, Va. - which was 50 percent black - to increase the number of contracts awarded to blacks from 0.67 percent to a goal of 30 percent. In 1995, she struck down a federal law giving a benefit to contractors using minority subcontractors. In 1990, she dissented from Justice William Brennan's opinion for the court approving the FCC's granting of radio-station licenses to guarantee minority participation, and she saw to it that, when Brennan retired from the court, that the decision was reversed.

In First Amendment cases, in 1989 and again in 1990, Justice O'Connor dissented from the majority's holding that flag burning to express disapproval of American involvement in the war in Vietnam was constitutionally protected. Twice she voted that recipients of government aid, no matter how minuscule, may be required to give up rights of free speech under the First Amendment. The first was the 1998 decision involving the National Endowment for the Arts, and in 2003 the American Library Association.

Regarding the First Amendment separation of church and state, in 1997, at the behest of New York City, O'Connor voted to reverse the ban issued by the court 12 years before prohibiting public-school teachers from teaching in Catholic schools. Justice Ruth Ginsburg said that that was shocking and without precedent in the annals of Supreme Court jurisprudence. In 2002, Justice O'Connor voted to permit tuition vouchers despite constitutional decisions holding government aid to religion a violation of the separation of church and state.

And who can forget that in Bush v. Gore, Justice O'Connor cast the deciding vote joining four others appointed by Republican presidents to make George W. Bush president of the United States? The decision has come up again recently because Justice O'Connor, now retired, publicly voiced doubt as to whether the court even should have accepted the case for review. She may have reacted to respected scholarly opinion that that was the worst decision ever made by the Supreme Court in modern times.

With a record like this, who cares that she was the first woman justice on the Supreme Court?


Burton Caine is a professor of law at Temple Law School.

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