Justice O’Connor Withdraws From Public Life, and the Reagan Court is Finally Born

Justia Verdict Podcast | Legal Analysis and Commentary from Justia

Last week, retired Supreme Court Justice Sandra Day O’Connor announced that, facing the prospect of advancing dementia, she was withdrawing from public life. Justice O’Connor will rightly be remembered as a pioneer. As the first—and for well over a decade, the only—woman on the Supreme Court, she transformed the institution. For most of her nearly quarter century on the Court, she was, on many important issues, the most powerful person in the country, as she defined the Court’s center, while the Court defined the bounds of law.

Unsurprisingly, the exercise of so much power did not please everyone. Indeed, it sometimes seemed as though Justice O’Connor did not please anyone. Her vote with the majority in Bush v. Gore and her conservatism on such issues as states’ rights and habeas corpus meant that she was no liberal hero. Meanwhile, she disappointed many conservatives by moderating on abortion, affirmative action, church-state separation, and other subjects. And Justice O’Connor’s tendency to split the difference rather than stake out bold positions meant that she did not have a distinctive perspective to which scholars can point as her legacy.

Nonetheless, no one doubts Justice O’Connor’s love of country, work ethic, integrity, or personal decency. Her announcement has understandably and quite appropriately brought forth a wealth of tributes, many of them lamenting how, as a centrist Republican with a penchant for compromise, she seems a symbol of a bygone time.

She may well be. In the last two years, the three justices named to the Court by Ronald Reagan have left the arena: Justice Scalia died suddenly in early 2016; Justice Kennedy retired this past summer; and now Justice O’Connor has withdrawn from public life. Ironically, however, the exit of Reagan’s nominees has birthed what might best be called the Reagan Court.

Becoming Justice O’Connor

As a presidential candidate, Ronald Reagan promised to name a woman to a Supreme Court vacancy, should one open. Why did he choose O’Connor, who, when tapped, was a not-very-well-known intermediate appellate court judge in Arizona, having previously served as a state legislator? Part of the answer is that O’Connor had the support of conservative hero Barry Goldwater.

Another (rather large) part of the answer is that in 1981, very few women—and even fewer Republican women—had had the opportunities needed to rise to the level of professional accomplishment that we have come to associate with Supreme Court nominees. O’Connor initially had a difficult time finding work as a lawyer, despite graduating near the very top of her Stanford Law School class. A man with the same credentials might well have been a US Senator or Arizona Supreme Court justice. How do we know? Because her law school classmate William Rehnquist was waiting for her at the US Supreme Court when she got to Washington. Thus, O’Connor was eminently qualified for the position to which Reagan named her.

Yet in 1981, as today, professional qualifications were usually thought a necessary but not sufficient condition for a Supreme Court nomination. Many of Reagan’s pro-life supporters were worried that O’Connor would prove wobbly on abortion, given her record as a state legislator. Reagan looked past that concern, however, perhaps because of the dearth at the time of female, strongly anti-abortion potential nominees with anything like O’Connor’s credentials. Indeed, some historians have even suggested that Reagan privately viewed O’Connor’s moderate stance on social issues as a political plus.

The Reagan Revolution

Justice O’Connor undoubtedly counts as part of President Reagan’s legacy, but seen in broader perspective, her centrism made her an exception to the larger movement that the Reagan administration catalyzed. Justice Anthony Kennedy was another exception. Reagan’s first choice to fill the seat vacated when Justice Lewis Powell retired was Judge Robert Bork, a highly ideological conservative. The nomination only went to Kennedy, a moderate conservative, after the Senate rejected Bork, and Judge Douglas Ginsburg, Reagan’s second choice, withdrew.

Overall, Reagan’s judicial nominees reflected the fact that his administration was a hotbed of activity for ambitious conservative lawyers. In addition to placing Bork on the court of appeals and then attempting to elevate him, Reagan successfully placed Antonin Scalia first on the court of appeals and then the Supreme Court. He also named other conservative intellectuals, like Richard Posner and a then-very-young Alex Kozinski, to the federal appeals courts.

The Reagan administration was also a training ground for a later generation of conservative jurists. Both Chief Justice John Roberts and Associate Justice Samuel Alito worked in the Reagan Justice Department as young lawyers. Meanwhile, Reagan’s Attorney General Edwin Meese delivered important speeches and commissioned studies that would pave the way for later conservative Supreme Court decisions on a wide range of issues. During this same period, the Federalist Society was formed to train (or, depending on one’s view, indoctrinate) aspiring conservatives in the ways of originalism and networking.

Reaganism’s Successes and Failures

From the appointment of Justice O’Connor in 1981 through the retirement of Justice Kennedy earlier this year, the Reagan agenda achieved some important legal successes. The Supreme Court, abetted by Congress and President Clinton, cut back on the right of state prisoners to file habeas corpus petitions. Arbitration clauses limiting court access were deemed enforceable across a wide range of cases. Corporate money was treated as free speech. States were given immunity against civil lawsuits. The Second Amendment was invoked to undercut federal and state gun control. And much more.

Still, the Reagan agenda did not triumph completely. Although the rights of criminal defendants were curtailed, they were not eliminated. For example, Rehnquist, whom Reagan elevated to chief justice, had been a critic of the Warren Court’s Miranda rule, but he wrote the Court’s opinion reaffirming that ruling in the 2000 case of Dickerson v. United States. Some rulings of Reagan’s appointees—like Kennedy’s majority opinions invalidating the juvenile death penalty, curtailing prison overcrowding, and finding a limited right to effective assistance of counsel in habeas cases—actually expanded the rights of defendants and prisoners. To similar effect, Justices O’Connor and Kennedy authored important decisions rejecting broad claims of presidential wartime power, another key tenet of the Reagan agenda. In what is probably the most-quoted statement in this line of cases, O’Connor wrote in 2004 that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”

Perhaps most fundamentally and most irksome to movement conservatives, Justices O’Connor and Kennedy joined with their more liberal colleagues to retain (albeit in somewhat more limited form) the constitutional right to abortion and greatly expand the rights of gays and lesbians.

Reaganism Without Reagan’s Justices

With the ascent to the Court of Justice Brett Kavanaugh earlier this month, it now appears that the right will finally be able to achieve what it never quite managed while Reagan’s appointees sat on the Court—the full Reagan agenda.

That does not mean that there will be no victories for liberals. For his part, Justice Gorsuch appears to be quirky in some of the ways that Justice Scalia was; he will vote for criminal defendants when his brand of originalism clearly leads him to do so. Meanwhile, Chief Justice Roberts has long espoused a kind of stylistic restraint that may lead him to delay dramatic decisions that completely overrule the abortion right or completely ban all use of race-based affirmative action. Death by a thousand cuts, rather than in one fell swoop, could be the fate of those liberal precedents that survived for the nearly four decades that Reagan’s appointees sat on the Court.

Earlier this year, I observed that “to a remarkable degree, almost five decades after Earl Warren retired from his seat as chief justice, Warren Court precedents define basic constitutional doctrines, even as the Burger, Rehnquist, and Roberts Courts have chiseled away at their effectiveness in achieving the substantive aims of those doctrines.” That was before Kennedy retired and Kavanaugh was confirmed, however. At some point, repeated chiseling destroys the statue or edifice. It appears that, even without a further change in personnel, we have reached that point.

Whether slowly or quickly, stealthily or openly, the Trump-reinforced conservative majority will change the law in kind, not just degree. When it does, the Reagan revolution on the courts will finally be complete—just in time for liberals and progressives to convert our numerical majority into a governing majority, and thus to begin our own revolution.

Follow @dorfonlaw

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.