Tuesday’s news that retired U.S. Supreme Court Justice Sandra Day O’Connor was retreating from public life after being diagnosed with early-stage dementia prompted many to consider her legacy on the high court.
Sasha Volokh, who teaches constitutional law at Emory University, clerked for O’Connor during her last six months on the court, ending in early 2006 when Justice Samuel Alito was confirmed as her replacement.
Twelve years later, he said, “Many of the important opinions I teach are O’Connor opinions.”
He said she will be remembered for “her ability to steer a middle course” between liberal and conservative factions.
She voted reliably with conservatives espousing “New Federalism,” which limited the power of the federal government. But she tended to side with the liberal wing of the court on due process matters, most notably forming a plurality opinion in 1992 upholding the right to abortion.
Her tests for deciding constitutional violations on affirmative action and the establishment clause made her vote unpredictable.
“Some people found it maddening,” Volokh said of O’Connor’s middle road, which he suggested could have been informed by her background as a state legislator and judge in Arizona.
O’Connor didn’t appear to set out to be a swing vote, but Volokh said, “Somebody’s going to be the median” among nine jurists.
Appointed in 1981 by President Ronald Reagan, O’Connor was by definition a groundbreaker as the first woman on the high court.
Along with providing a key vote to preserve abortion rights, O’Connor wrote for the majority in a 5-4 decision holding that a Georgia girl could bring a Title IX lawsuit against her school district for not doing enough to stop a classmate who was sexually harassing her. Volokh cautioned against assuming O’Connor’s gender played a significant role in her vote, noting the case was “about private rights of action.”
Asked about O’Connor’s role on the court, Volokh said, “Occasionally, she did go out of her way to find compromise solutions.”
That tactic, he said, contrasted with that of the late Justice Antonin Scalia, who said what he thought, often bluntly in an off-putting manner.
Volokh said where Scalia may have been writing for law students and future scholars to adopt his philosophy of the law, O’Connor was asking, “What will make the law work today?”
A quirk in history meant that Volokh almost missed his chance to work for O’Connor, then regained it. Volokh was on a cross-country drive in summer 2005 to start his clerkship with her when he learned she had announced her retirement.
President George W. Bush tapped appellate lawyer John Roberts to replace O’Connor, but Chief Justice William Rehnquist died before Roberts could be confirmed. Bush then shifted Roberts to the chief’s seat and asked O’Connor to stay on the court until her replacement could be confirmed.
That didn’t occur until January 2006, when Alito joined the court. Volokh finished the term clerking for Alito.