So Long, Sandra Day O'Connor

For the past 24 years, Sandra Day O'Connor has been my favorite Supreme Court Justice.

It might seem odd to some that a liberal Democrat such as myself would hold a conservative Republican like O'Connor in such high esteem. And it's true that I haven't always agreed with her decisions.

But among the current members of the Court, no justice has more routinely surprised ideologues on both sides by adopting non-ideological, principled positions based on Constitutional history and the national interest alone. That O'Connor would be, on balance, so non-partisan and non-ideological came as a surprise to almost everyone. After all, she was the rare instance among Supreme Court judges who reached the Court not through a career on the federal bench or in academia but through local political channels--first as a State Senator (and majority leader) in Arizona, then as a state court judge.

And certainly in the most divisive and political case to confront the court since the Depression, Bush v. Gore, O'Connor sided with the majority in a Per Curium opinion, though she was the only Justice who did not join the concurring opinion advanced by the rest of the court's Republicans.

It may seem that O'Connor appeals to the liberal in me because her proudest moments on the Court came in affirming apparently liberal ideals--in an opinion she co-wrote in 1992 reaffirming the Constitutional right to abortion, in the Hamdi case where she dismissed the claim that the executive branch could hold citizens as enemy combatants without court challenge, and in the cases decided just last week when she eloquently argued for the preservation of the Constitutional wall between church and state.

But these were O'Connor's greatest moments not because they were liberal moments but because they were moments when she stood up, forthrightly, for individual liberty in the face of ideological, intrusive government power even though that power was being wielded by members of the party to which she had devoted her early career. In many ways these majority decisions that she wrote were her most conservative moments.

O'Connor wasn't given to flights of rhetorical fancy in her writing. But she was capable of a plainspoken, hardscrabble eloquence that rang with common sense, a style perhaps unsurprising considering her childhood growing up in the 1930s on an Arizona ranch without electricity or running water.

I already quoted Sandra Day O'Connor twice in the past week, from her concurring opinion to order the removal of the Ten Commandment displays from the courtroom walls in two Kentucky counties, and from her dissent in the New London eminent domain case. Let me also note something from her majority opinion in the Hamdi case:

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.

The story of Sandra Day O'Connor is a great American success story. O'Connor graduated in two years instead of three from Stanford Law, third in her class (Chief Justice Rehnquist was first), but because she was a woman the only job she could find was as a legal secretary, nevertheless today she resigns after nearly a quarter century of distinguished service as the nation's first female Supreme Court Justice.

There will be plenty of time to talk about the political ramifications of her resignation--as a centrist swing voter and court mediator O'Connor was in the middle of a lot of 5-4 decisions in her career. If she were to be replaced with an arch ideologue of the Scalia/Thomas sort the complexion of American jurisprudence would change dramatically for the worse.

But today let's not argue politics, let's celebrate this great woman's legacy.