The equivocal legacy of Justice O'Connor

Justice O'Connor has passed away. May she rest in peace.

My first thought upon hearing of this sad event was about the CASEY decision in 1992, and about how this looks in retrospect.

Casey came just as a twelve-year period of continuous Republican occupation of the White House was ending. Clinton won the election that year -- before then, Reagan and the elder Bush had been President, and it was widely believed that they had put enough Federalist Society types on the High Court to ensure that ROE v. WADE was going to be overturned.

Yet Casey surprised people. Not only was ROE not overturned, what the court called its "essential holding" was specifically retained. This was due to the emergence of a "centrist bloc" consisting of Antony Kennedy, David Souter, and ... Sandra Day O'Connor. Although their decisive opinion in CASEY was put out as a joint opinion -- no one author among the three -- O'Connor was the one of the three with the greatest seniority. The first of those put on the court during that long 12-year period. She was also of course the one member of this group, and at the time the only member of the court, with a uterus. For some combination of these reasons O'Connor was widely seen as the guiding spirit of Casey.

The reason their decision was a "centrist" decision, though, was that Casey made an important concession to anti-Roe arguments. It overturned the rickety trimester framework of the 1973 decision and instituted a rather amorphous "undue burden" test instead.

This set up a dynamic that proved disastrous for Roe. Each new challenged regulation was defended on grounds that it constituted only a slight burden, not an "undue" burden, on the right to reproductive choice. It is the old paradox about how "just one hair on my chin" doesn't give me a beard. Ho many hairs does, though? There must be some number, the highest possible number of hairs that is short of a beard. Beyond that number, there is a beard on my chin. And the last hair to put me at that number? At that point "just one hair" does do the job. Over the following three decades it became progressively easier for states to burden the right to choose an abortion SHORT of prohibition. Until we get to Dobbs when Roe, as well as Casey, ceased to be the law at all.

So, did O'Connor save Roe or doom it? Perhaps it was in a Big Picture sense doomed and she simply bought it some extra time, allowing that time for a consensus to develop that would, in OUR time, eventuate in sufficient political support for reproductive freedom. This is why we have successful votes to put explicit protections in state constitutions: that consensus did develop.

Check in with me after another 50 years have passed and we'll have some perspective.

A Story About Coleridge

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Jamesian Philosophy Refreshed

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