Slate: Sandra Day Late
Justice Sandra Day O’Connor should never have retired from the Supreme Court. She is an 83-year-old with plenty of energy, which she expends hearing lower-court cases, giving speeches, and making me want to tear my hair out by talking like the sensible moderate-liberal she refused to be on the court. Why didn’t she voice these views when she had power?
I’m prompted to my hair tearing by O’Connor’s statement to the Chicago Tribune editorial board that, oh, maybe it wasn’t such a hot idea for the Supreme Court to have decided the 2000 presidential election by taking Bush v. Gore and issuing the ruling that ended the Florida recount. Here are her musings, as the Tribune reported:
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said last Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’ ”
The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”
“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
What is with that weird disembodied “it”? That word allows O’Connor to distance herself from a decision she was very much a part of. Replace every “it” with “we.” Or even with “I,” since O’Connor could have swung the 5-4 ruling in the opposite direction by switching sides.
I suppose, since it takes only four votes to take a case, that it’s in the realm of possibility that O’Connor voted against the decision to hear Bush v. Gore in the first place, and only came around to the conservative position once that bridge had been crossed. But who cares? What matters is that she’s right: The Supreme Court did “add to the problem at the end of the day” by imperiously swooping in to decide a matter that was properly in the hands of the Florida courts and the Florida recount procedure. To hear O’Connor recognize now that all of this was misguided is the definition of too little, too late. It’s a form of regret fit only for the Onion to parody.
If anything, O’Connor’s late expression of doubts makes her vote in Bush v. Gore seem all the more partisan. Especially since, as pointed out in The New Republic, O’Connor was on record as rooting for George W. Bush’s father, in 1988. Couple this with Newsweek’s report that at an election night party in 2000 – yes, that’s the year George W. ran against Al Gore – O’Connor’s husband, John, reportedly said his wife wanted to leave the court, but wasn’t eager to do so if a Democrat was in the White House. “This is terrible,” she reportedly exclaimed when CBS called Florida for Gore. Terrible enough to undo, apparently, even if that seems unwise with the benefit of hindsight.
In fact, what proved terrible for O’Connor’s legacy was Bush’s decision to appoint Justice Samuel Alito in her stead in 2006. The result, as Slate’s Dahlia Lithwick has argued, has been to turn O’Connor from the most powerful justice to the Incredible Shrinking Woman. After the court’s decision in Citizens United, in which it dispensed with spending limits for corporations and unions in elections, O’Connor said, “Gosh, I step away for a couple of years and there’s no telling what’s going to happen.” If O’Connor had made good on her regrets about Bush v. Gore when it counted, Citizens United could have come down differently, too.
(Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her new book is “Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character.”)