Constitutional Fidelity vs. Personal Conscience: Sandra Day O’Connor’s Legacy
Sandra Day O’Connor, a Reagan appointee, was the first woman to serve on the Supreme Court. She died on December 1, 2023, and multiple tributes have followed online and in print. One appearing yesterday on the SCOTUS Blog caught my attention. Entitled “Justice Sandra Day O’Connor protected us from the extremes,” Marci A. Hamilton, a professor at the University of Pennsylvania and former O’Connor clerk, argues that America needs more judges like her old boss. However, Hamilton’s praise and candor are a microcosm of what is wrong with American law.
Hamilton starts with this praise of the deceased jurist: “Justice O’Connor’s greatest virtue on the Court, in my view, lay in her steadfast allegiance to her own moral center, regardless of what the right demanded of her, and despite being appointed by President Ronald Reagan.” She was “a strong center who decided each case according to her lights.” “O’Connor wasn’t counting votes,” Hamilton writes, “but rather listening to her conscience.”
Notice none of this praise is for O’Connor’s fidelity to the written Constitution. Instead, we are to cheer her for deciding cases based on her conscience, moral principles, and lights. Such praise might be proper for a deceased member of the legislature who made public policy based on her conscience but not for the celebration of a jurist’s life. How frightening that a University of Pennsylvania professor and former Supreme Court clerk could so nonchalantly praise her mentor for infidelity to the Constitution and fidelity to her own moral compass.
Take, for example, Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), when the Court had an opportunity to overturn Roe v. Wade (1973). In Roe, Justice Harry Blackmun and six other justices struck down a Texas restriction on abortion as violative of the Due Process Clause of the Fourteenth Amendment. Blackmun then crafted a trimester system governing abortion regulations. Pure and simple, Roe was judicial legislation. (See this post that discusses Roe’s constitutional problems.)
Rather than take the initiative to overrule Roe, O’Connor joined with Justices David Souter and Anthony Kennedy to keep the Court in the abortion business. The justices created a new standard to determine the validity of laws restricting abortions. The new standard asked whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which the three amigos defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
Much like Blackmun’s trimester framework, the undue burden test was nothing but public policy disguised as legal reasoning. What Roe described as a right to privacy, Casey described as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy.” Casey elaborated: “At the heart of liberty [in conjunction with the Due Process Clause] is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” It’s great stuff for a freshman philosophy paper but inappropriate for a judicial opinion. Yet, O’Connor, guided by her “own lights,” signed onto such psychobabble.
Hamilton praises O’Connor as “a champion for women from the start,” as if she simply represented a tribe in a great council or legislature. Never does it dawn on Hamilton that a genuinely great judge would be a champion of the Constitution—so much for Lady Justice with her blindfold and scales.
Unwittingly, Hamilton’s remembrance of Justice O’Connor is Exhibit A in the case against the living Constitution and law as an offshoot of politics. Deciding cases by her own moral compass did not make O’Connor great. It compromised her integrity as a judge and subjected our system of ordered liberty to O’Connor’s “own lights” as she created law rather than declared preexisting principles as given to us by the Framers.
