...And Sandra Day O’Connor Is No Damn Good Either!


Revolution #009, July 24, 2005, posted at revcom.us

On July 1, Sandra Day O’Connor announced her resignation from the Supreme Court. And since then, she has been portrayed (in outrageous ways) as a great “moderate” protector of the people’s rights. Harry Reid, leader of the Senate Democrats, said, “It is vital that she be replaced by someone like her, someone who embodies the fundamental American values of freedom, equality and fairness.”

As hype showers down over Sandra Day O’Connor—everyone is being told to hope for (and support!) new appointments to the Supreme Court that would follow her “model.”

Let’s take a closer look at O’Connor’s ugly life’s work—so we get a sense of just what oppressive madness people are being told to accept and even demand.

Defending and Fine-Tuning This System

Twenty-four years ago, in 1981, O’Connor was nominated for the Supreme Court by Ronald Reagan with the backing of her Arizona Republican allies, then-Associate Justice William Rehnquist and rightwing Senator Barry Goldwater.

A close look at her work shows what a judge like her really does. She did not somehow “hand out justice to the people”—but worked as a high-level legal decision-maker, resolving sweeping disputes between different parts of the ruling class, trying to safeguard the legitimacy of the government, and doggedly upholding the basic framework of this capitalist system.

In specific decisions, her approach was repeatedly to weaken the separation of church and state and the legal right to abortion. She helped beat back demands for the abolition of the death penalty and supported the vicious trends toward increased punishment and prison time.

She justified many of these stands by using the legal banner of “federalism”—where states are allowed to work out their own ways of punishing and restricting the people. This term “federalism” is really a misleading and polite way of referring to the old, ugly cause of “states’ rights,” which has protected and unleashed all kinds of oppression and repression throughout U.S. history.

State Executions

Sandra Day O’Connor has repeatedly upheld the government’s power to execute prisoners—even while she acknowledged in speeches that prisoners are often sent to death row in glaringly unjust ways.

In 1984 (Strickland v. Washington), O’Connor wrote the majority decision, making it harder for death row inmates to use their attorney’s mistakes to overturn convictions.

In 1987 (McCleskey v. Kemp), O’Connor was part of the court majority that upheld the death penalty. They specifically rejected the argument that the unequal patterns of execution show a profound injustice toward Black people.

In 2005 (Roper v. Simmons), the Supreme Court voted to forbid the execution of prisoners for crimes committed when they were juveniles (under 18). O’Connor opposed this decision, saying that forbidding such executions would violate a legitimate right of states to decide who to kill.

Upholding “Three Strikes You’re Out”

O’Connor wrote the main 2003 decision (Ewing v. California) that upheld California’s outrageous “three strikes and you’re out” law.

Under such laws, people have gotten an automatic life sentence after being convicted for a third offense. Gary Ewing had received 25-years-to-life for stealing three golf clubs. At the time over 300 other people had also been sentenced to 25-to-life for similar petty theft, like shoplifting.

“To be sure, Ewing’s sentence is a long one,” O’Connor wrote. “But it reflects a rational legislative judgment, entitled to deference.”

In other words: If California’s government approved these incredible injustices, then it’s OK with her!

Eager to Ban Flag-Burning

In 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), the Supreme Court ruled that flag-burning was a “protected form of political speech.”

O’Connor opposed both decisions, arguing each time that states should have the power to punish people who burn the U.S. flag.

She specifically argued the U.S. flag needed special protections because “In times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance.” In other words, she thought the system needed to suppress unpatriotic acts so that people would be more willing to die in the government’s wars.

Undermining Women’s Right to Choose Abortion

When she entered the Supreme Court, O’Connor described herself as an opponent of abortion. And on the bench, O’Connor repeatedly supported almost every abortion restriction that came before the Supreme Court—while also declining to grant states the power to completely ban abortions (by overthrowing Roe v. Wade).

In the 1989 Webster decision, she supported a Missouri law forbidding the use of public facilities to perform abortions, unless the mother’s life was in danger. In the 1992 Casey decision, O’Connor helped uphold more major restrictions—including so-called “informed consent” requirements, parental notification rules for teenagers, 24-hour waiting periods, and abortion reporting rules. The only restriction that O’Connor did not support was spousal notification. Later (in Stenberg vs. Carhart, 2000) O’Connor was part of a decision that knocked down state laws that banned late term abortions.

There has been a great deal said about the fact that O’Connor did not support completely overturning Roe v. Wade —but far less is mentioned about how, over her career, O’Connor helped restrict abortion in many ways and help make it much more difficult, even impossible, for millions of women to end unwanted pregnancies—especially poor, young and rural women.

Promoting God Mythology in Public Life

O’Connor supported the promotion of religiosity in public life.

In 1983 (Lynch v. Donnelly) O’Connor upheld local governments promoting public Christian observances—like nativity scenes honoring the birth of Jesus—on public property with government funds. This decision favorably cited as an argument that “[w]e are a religious people whose institutions presuppose a Supreme Being.”

In 1985 (Wallace v. Jaffree) O’Connor was part of Supreme Court majority that upheld “moments of silence” in public schools—giving school authorities a way to officially promote prayer.

In 1997 (Agostini v. Felton) O’Connor wrote the decision allowing local school authorities to assign public school teachers to enter parochial schools to provide “remedial education”—which is a way of using public funds to support church indoctrination.

In these ways, O’Connor helped undermine the separation of church and state and actively promoted religion in public life.

And it is a sign of these times that she is now criticized by powerful forces within her own party for not going far enough in supporting the open government endorsement of a specific religion: fundamentalist Christianity.

Affirmative Action

In 2003, O’Connor wrote the Court opinion (Grutter v. Bollinger) which argued that public universities should be allowed (in some “narrowly tailored” ways) to “take race into account” during admissions. This was one of the cases where she voted against the most right-wing of Supreme Court justices, and is put forward as a sign of her supposed “moderation.”

But it is important to note that her argument in this case reveals how her decisions were rooted in a specific class outlook—that approaches such issues from the perspective of the rulers of this society, not from the oppressed.

O’Connor wrote: “[U]niversities, and, in particular, law schools, represent the training ground for a large number of our Nation’s leaders. In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

She believes a limited degree of “affirmative action” should be allowed (especially in elite institutions) because the stability and legitimacy of this system required that individuals be trained from among all nationalities to serve in high places.

At the same time, O’Connor was part of the majority that struck down the affirmative action program of the University of Michigan undergraduate program (in Gratz v. Bollinger)—because its promotion of African American, Latino and Native American recruitment was more robust and not as “narrowly tailored.”

Stealing the White House

O’Connor was an active player in the Supreme Court’s intervention in the 2000 election—helping stop the Florida vote recount and handing the presidency to George W. Bush.

This coup-by-court was part of an ominous sea change in the direction of the U.S. government at the highest levels. In this decision, the Supreme Court majority disregarded all the signs of widespread voting irregularity— including major efforts to disenfranchise Black voters in the state.

And note well: O’Connor revealed herself suddenly indifferent to “states rights” in this case—since it got in the way of larger issues of power!

On Fascist Moves During “War on Terror”

For years, the U.S. government has run wild throughout the world—seizing and kidnapping people for imprisonment and torture, invading countries based on lies, plus crudely violating international treaties it had signed regarding the treatment of prisoners and more. Virtually all of this has gone down with the complete silence or approval of the Supreme Court, including Sandra Day O’Connor.

The same day in June 2004, the Court announced three decisions related to this “war on terrorism.”

O’Connor wrote the decision (Hamdi v. Rumsfeld) that upheld the power of the U.S. president, in wartime, to declare anyone an “enemy combatant.”

At the same time, two of these decisions (Hamdi v. Rumsfeld and Rasul v. Bush) held that the U.S. captives (even at Guantánamo) should be given some access to hearings to challenge their continuing imprisonment.

In the third decision, the Supreme Court used the most petty technicality as an excuse to avoid ruling on Rumsfeld v. Padilla. Jose Padilla had been arrested in Chicago, labeled an “enemy combatant,” and has now been held in prison for three years without charges. By refusing to hear this case, the Court (including O’Connor) turned away—leaving Padilla in solitary confinement, and leaving the White House free to seize people all over the world (including U.S. citizens on U.S. soil) and lock them away without trial as “enemy combatants.”

At a very basic level, these decisions have rubberstamped the imperialist outrages the U.S. government is carrying out around the world, while calling for fine-tuning the legal procedures and frameworks for carrying it out.


The Short Version: Sandra Day O’Connor has been a lifelong enforcer of a criminal system, a defender of great injustices, and an activist in the whole rightward shift of official U.S. politics and law.

She is no “model of what we want”—but a leading representative of everything we need to end.

Sandra Day O’Connor is no damn good—and people need to know it.