Comparing the Legacies of O'Connor and RBG

They Both Had Outsized Impacts on America; Just Not in the Ways You May Think

Sandra Day O’Connor was the first woman to be nominated and unanimously confirmed for a seat on the Supreme Court in 1981. Ruth Bader Ginsberg was the second nominated in 1993 and was approved by the Senate nearly unanimously (96-3). While these two remarkable women took very different paths to the country’s highest court (O’Connor as both a legislator and judge in Arizona; Ginsberg via clerkships, the ACLU and Federal Bench in New York), they both made profound impacts on American society now and for generations to come, shattering the judicial glass ceiling with jackhammer-like results.

But that’s really where the similarities tend to end. The were not the same ideologically. Their styles were completely different. Neither ended up being on the Court what anybody expected, and one’s legacy was made entirely by what she did on the Court while the other’s is on what she did to pop culture.

So with O’Connor’s passing and with RBG deceased since 2020, it seems like an apporpriate time to take a step back and look at these incredible women and the imprints they made on America.

Sandra Day O’Connor

Sandra Day O’Connor graduated third in her law school class at Stanford, and was on the Stanford Law Review.¹ Upon graduation the only job she was interviewed for in the field of law was as a secretary. The first job she actually got was as a Deputy County Attorney in San Mateo, CA, but only after she agreed to do it without pay and sharing an office with a secretary for someone else. After she got married and had several children, her and her husband settled in Maricopa County, AZ. She worked as the Assistant Attorney General, was appointed by the Governor to fill an Arizona Senate vacancy and was eventually appointed to the Arizona bench in 1973, making her someone who has served in all three branches of government. She had a reputation as a Goldwater conervative but someone who was skilled at negotiating and reaching a consensus.

In 1981, with the resignation of Supreme Court Justice Potter Stewart, Ronald Reagan had his first opportunity to nominate someone to the Court. During his campaign he had made the pledge to appoint the first woman to the Court. Leaning on conservative Associate Justice William Rehnquist’s suggestions, he nominated O’Connor.

Early in her career, Republicans were in the minority on the Court but the winds were shifting fast. She developed a persona of a Conservative, but one that could make deals to get a consensus. As Reagan’s term continued, he appointed additional Conservatives to the Court, adding Antonin Scalia and elevating Rehnquist to Chief Justice. His initial appointment of Robert Bork failed, and he had to go with the more moderate Anthony Kennedy to get his nomination through the Senate. With George H.W. Bush appointing both David Souter and Clarence Thomas to the Court, Conservatives thought they finally had the majority to reform the federal bench and undo many of the landmark cases they’d abhorred since they were first made.

Chief among those was Roe v. Wade. When the case came up in Planned Parenthood v. Casey, they originally had the votes to strike it down, but O’Connor had second thoughts.² She was apprehensive about the lengths the more Conservative members wanted to go, and she was not comfortable with striking it down. She found common cause with Kennedy and Souter and together, the three of them sided with the liberals to keep Roe in place but also change some of the framework around it, preventing states from imposing “undue burdens” to women seeking an abortion. Conservatives minds exploded. “This was not what she was put on the Court to do!” they screamed. But the fact remains, when the time came to save Roe v. Wade, Justice O’Connor was the one who saved it.

The defection of the three Republicans, along with the failure of the Bork nomination, resulted in Supreme Court nominees being much more scrutinized, and the nomination process being turned into much more partisan affairs. Leonard Leo of the Federalist Society took it upon himself to vet pretty much every judge for Republicans going forward, and anyone not in lockstep with Conservative orthodoxy would never make it to the bench.

Getting back to O’Connor though, the Casey case was emblematic of pretty much her entire career. She would often make middling decisions, or slow rolled a complete rollback of them. She was always courted by both sides, and was given the ability to write the opinions if it meant getting to a majority. Small and incremental, but progress in one way or the other would be made. She became a fixture at the center of the Court and authored 676 opinons in her career, 301 of which were the Majority Opinions of the Court. Outside of Chief Justices, that is a gobsmacking record of control on the Court.

By being the most senior member of the moderate bloc on the Court, she was seen as giving legitimacy and fairness to the process. It was clear she was not some partisan hack or patsy on the Court. Her decisions were constant and reliable reflections of where society was at the time they were made, and were often hailed as solid compromises and sound judgments. When she left the Court (and subsequently when Kennedy did), the moderate bloc was gone and it has since come to be seen as purely partisan decisionmaking. Something has been lost.

Ruth Bader Ginsburg

Ginsburg received her undergrad from Cornell, attended Harvard Law School and graduated with her law degree from Columbia Law School. She clerked for several prominent federal judges in New York and was a respected law professor at several east coast Law Schools. She was the General Counsel for the ACLU and started the Women’s Rights Project there. She was appointed to the Federal Court of Appeals for the DC Circuit in 1980, just as O’Connor was about to be nominated to the Supreme Court.

President Bill Clinton, had a rudimentary interview with her at first; his intention was to put his close friend Mario Cuomo on the Court and the interview was just a screen for due diligence. When Cuomo declined the offer, many around the White House and the Supreme Court told him to reconsider Ginsburg. Upon this second interview, her abilities and credentials came shining through and she was nominated. Her likeability and personal demeanor appealed to the Senators as well and she cruised through with nearly a unanimous approval.

On the Court though, she became a stalwart on the left. Extremely articulate, very consistent and well reasoned, her decisions were often the best ones to read. There was just one problem; liberals were now in the minority on the Court and her most cited and notable decisions were more often dissents (often scathing) than they were Opinons of the Court. In her time, she wrote 217 Opinions of the Court, often on less controversial issues, and another 90 concurrences. Her dissents were often very sharp and extremely on point, of which she authored 129 dissents. She was often compared with Antonin Scalia, a vocal and aggressive Justice on the Right,³ who also often penned very acidic dissents. Her opinions were very typical, doctrinal liberal positions.

While not very effective at making Supreme Court precedent, she became a pop culture icon on the left for her persona and liberal bona fides. As a book and subsequent documentary about her labelled her, she became the “Notorious R.B.G..” The left praised her positions and put her on the pedestal as the definitive liberal orthodoxy representative.

Ginsburg had survived several bouts of cancer while sitting on the bench and maintained a lengthy tenure on the Court despite health concerns. During Obama’s second term it was suggested she step down so a Democrat could appoint her successor. Those overtures were spurned and she remained on the Court. However, a tragedy for the left occurred when she passed away in 2020, a mere 6 weeks before the Presidential election. Trump appointed Amy Coney Barrett to replace her and the process was fast tracked to get approval before the election. Not only did the Right now have the votes to undo Roe v. Wade and other liberal bulwark opinions, they had the votes to undo everything Ginsburg spent a career and lifetime advocating.

And with the Dobbs decision, the Court finally did undo Roe v. Wade in a 5-4 vote. It could be argued that Ginsburg refusing to give up her seat when she had an opportunity to be replaced by a liberal is what changed the balance.

Conclusion

Both these remarkable women left very different legacies. O’connor penned many notable, important decisions, some of which have stood the test of time and been reaffirmed. Her narrow, incremental approach was both wise and considered, and helped secure the Supreme Court’s legitimacy on often controversial topics and polarzing times. With a more radical Conservative majority on the Court now, many of those precedents will be (and in the case of Roe/Casey, have been) tested.

Ginsburg’s Judicial legacy on the Supreme Court is much thinner. As time goes, it’s likely she’ll be known more as someone who should have left the Court sooner rather than giving the Right another pick to solidify more extreme majorities. Nonetheless, her overall legacy is much more broader and profound than just her decisions, serving as an inspiration and icon for generations of women, attorneys and otherwise, to aspire to.

PurpleAmerica’s Recommended Stories

I really want to encourage all of you to read “Closed Chambers” by Edward Lazarus which came out in the early 1990s. Lazarus was a clerk for Justice Harry Blackmun and had a front row seat for some of the biggest ideological fights at the time, including Planned Parenthood v. Casey. It is a rare and candid portrait of what life is like behind the scenes at the Supreme Court and well worth your time.

PurpleAmerica’s Cultural Corner

A professor in law school once told me that you know when you’ll know there is equality on the Court between men and women? When people stop thinking of the Justices as “men” and “women” and they are only viewed as “Justices.”

I thought about that a lot while I was writing this. Regardless of how Obama’s, Trump’s, and Biden’s female nominees to the Court were marketed as “Women justices,” their decisions on the Court are seen less and less as being made by “women” and are now just seen as “decisons.” O’Connor and Ginsburg had a lot to do with that. Elana Kagan, Sonia Sotomayor, Amy Coney Barrett are all respected and their Opinions are just perceived as just another opinion. Ketanji Brown Jackson is the newest addition to the Court, and with that the least seniority to write opinions; however, when she has written a concurrence or infrequent opinion she has demonstrated the same level of jurisprudence, intellect an decisionmaking as any other Supreme Court Justice. The trail that O’Connor and Ginsburg blazed is becoming less noteworthy, and more normalized. Its a good thing.

Cycling back to what my professor said, I don’t think we’re there yet— that will only occur once nominees are no longer selected and marketed with the gender distinction attached. But we’re getting closer to it.

PurpleAmerica’s Obscure Fact of the Day

O’Connor and Ginsburg co-founded and managed a “Women’s only” exercise session in the Supreme Court gym facilities for many of the clerks and staff. They were often paired as the first two female Justices on the Supreme Court and worked together to expand opportunities for female attorneys across the country.

PurpleAmerica’s Final Word on the Subject

Today, I offer three Ginsburg quotes, because they are so on point:

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Footnotes and Fun Stuff

1. The person who graduated first in that class and was Editor of the Stanford Law Review was Chief Justice William Rehnquist. Until Amy Coney Barrett (Notre Dame) was confirmed, O’Connor was the last non-Ivy League Law School graduate on the high court.

2. For a real great inside the Court look at this, read Edward Lazarus’ “Closed Chambers.”

3. As many are often surprised to hear, Scalia and Ginsburg were in fact, great longtime friends dispite their political disagreement. Scalia and Ginsburg could often be seen at the Washington Opera together and he accompanied her on a trip to India. When a FOX reporter asked Scalia how he could be friends with Ginsburg, his response was “What’s not to like? She’s a wonderful human being.”