Sandra Day O’Connor, US Supreme Court justice, 1930-2023

Sandra Day O’Connor, the US Supreme Court Justice who died on Friday aged 93, was once arguably the most powerful woman in America.

As the first woman appointed to the US Supreme Court, O’Connor’s place in history was assured the day in July 1981 that President Ronald Reagan plucked her from Arizona’s court of appeals for the highest bench in the land.

But she will also be remembered for the political coincidence of her position at the centre of an evenly divided court, making her the swing vote on some of the most consequential legal decisions for more than two decades — including one that preserved the right to an abortion for another 30 years, before it was struck down in 2022.

O’Connor’s great influence came from the simple fact that the Supreme Court was ideologically split for much of her 24 years of service, and she often provided the final vote needed to form a 5-4 majority

The court led by William Rehnquist, a close friend of O’Connor at Stanford Law School who was chief justice for most of her tenure, had three committed conservatives on one side, and four liberal justices on the other. Victory would go to the side that could win over the moderate “swing” voters in the middle — the most important of whom was O’Connor.

“Her vote was likely to provide the crucial fifth vote,” said John Jeffries, professor of law at the University of Virginia and a longtime court-watcher. “She was exceptionally powerful in the sense of being very often decisive.”

That swing vote meant she was frequently the ultimate decision maker on some of the most important social and legal issues of her day: sex discrimination, abortion, the separation of church and state, and the balance of power between federal and state governments (she was a strong advocate of states’ rights).

O’Connor, inevitably, also played a crucial role in the most notorious of the court’s decisions during her tenure: the opinion that in effect granted the 2000 presidential election to president George W Bush over vice-president Al Gore. She helped form the 5-4 majority that stopped a Florida recount, attracting charges that, as a life-long Republican and former member of the Arizona state legislature, she acted out of partisan interests.

Supporters of O’Connor and her fellow conservatives on the court disputed those accusations, arguing that the highest court had to step in to restrain the Florida Supreme Court, which was intervening in an even more partisan fashion on behalf of Gore.

Persuasive arguments can be made both ways. But whatever prompted the decision, Jeffrey Rosen of George Washington University Law School pointed out that Bush vs Gore was an example typical of much of O’Connor’s jurisprudence.

The reasoning in the case, as in the vast majority of her decisions, was designed for one case only. Largely at her insistence, Rosen argued, the opinion included an odd disclaimer that made it inapplicable to any other election case: “Our consideration is limited to the present circumstances.” Much the same could be said of most opinions O’Connor wrote or influenced.

O’Connor was, above all else, a one-case-at-a-time judge. Despite being picked by a conservative ideologue like Reagan, she was a pragmatist who followed no ideology, political or judicial. Jeffries called her a “bottom-up” judge, who started with the facts and looked for an answer, rather than trying to trim the case to fit an ideology.

Her common sense approach reflected her frontier upbringing. Born in 1930, to Harry and Ada Mae Wilkey Day, she spent her early years on the family ranch in south-eastern Arizona. Her first home had no electricity or running water. She grew up branding cattle, riding horses and learning to fix whatever was broken, breeding in her a spirit of independence and pragmatism that marked her approach to life.

In 1952, she graduated third in her class at Stanford Law School, two places behind Rehnquist. That same year, she married fellow law student John Jay O’Connor, and went on to raise three sons before becoming an assistant attorney-general in Arizona in 1965. She was appointed to a vacant state senate seat and eventually became a state appeals court judge.

In 1981, when Reagan sought to fill a vacancy on the US Supreme Court, he turned to O’Connor even though her judicial career was neither extensive nor outstanding. But Reagan sought to make a mark in appointing the court’s first woman, and in a telling sign of a faded political era, the White House saw her as moderate enough to guarantee broad support in the Senate while still promising a conservative voice. She was confirmed by a vote of 99-0.

In the event, O’Connor’s vote was far from predictably conservative and that sometimes made her seem inconsistent. Conservative on some questions — she was at the vanguard of the right-leaning court’s revolution in shifting powers away from Washington and back to the states — she was a moderate on social issues. She had great sympathy with those excluded by gender; despite her gold-plated law degree, she found it hard at first to land a job apart from legal secretary.

In a 1992 challenge to abortion rights, Planned Parenthood vs Casey, O’Connor was one of the majority who voted to uphold the provisions of the previous Supreme Court decision, Roe vs Wade, that protected abortion rights nationwide for women.

“Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision,” declared a section of the opinion attributed to her. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Roe was ultimately overturned last year by a court where swing votes no longer held such sway.

By the time she left the Supreme Court in 2006, she had been joined on the bench by Ruth Bader Ginsburg. Ginsburg, who came to the high court after a career as a crusading legal activist for women’s rights, hailed from a far more liberal background. O’Connor embraced her nevertheless.

“I can say that it matters a great deal to me to have a second woman on the Supreme Court,” O’Connor said while the two were on the bench together. “And it is especially fitting that she should be Justice Ginsburg, a woman who has advanced directly in so many ways the progress of women.”

O’Connor announced her intention to step down in 2005, at the age of 75, even though she was still in good health. Although her brief letter to Bush did not mention a reason for her retirement, the court said she was leaving to spend more time with her ailing husband. Her departure was delayed into 2006 after Rehnquist passed away just two months after her letter was sent to the White House. She was ultimately replaced by Samuel Alito, an arch-conservative who authored last year’s opinion overturning Roe.

Later in life, she remained active in legal debates and her leading biographer wrote that she expressed some regret at having stepped down while her mind was still active. She was still lecturing on legal issues when her husband passed away in 2009.

In an age when the court is often at the centre of a politically polarised America, O’Connor’s career remains the embodiment of an era that has barely faded from Washington’s memory but may never return. When lawyers came to defend their cases before the court in oral argument, hers were always the most down-to-earth questions and often the hardest to answer. In many ways, she spoke for the American centre and, at a time when most of America was still settled firmly in the political centre, that meant she spoke for most Americans.