When I was a student, the legacy of Justice O’Connor had a strong impact on students who were involved in the Stanford Law Review. Her time as editor of the Stanford Law Review was a source of much legend, ranging from her close association with Justice Rehnquist and how she met her future husband. I also thought it was no coincidence that the first woman to be appointed as an Associate Justice of the U.S. Supreme Court attended Stanford. Stanford is one of only a few universities which has been open to men and women since its founding. It was only once that I had the opportunity to spend time with Justice O’Connor, during her visit in 2007 as Cornell Law School’s Distinguished Jurist-in-Residence. Justice O’Connor was retired when she visited Cornell Law School in 2007. She participated in an impressive lineup of events including a warm, enlightening “fireside talk” and other public discussions.
Justice O’Connor’s jurisprudence was moderate at a time the Supreme Court had already become divided. She is best known for two cases in which she played a key role and wrote the majority opinions. Grutter V. Bollinger (2003) arose from the affirmative action policy of the University of Michigan Law School and Planning Parenthood v. Casey (1992) affirming the constitutional right to an abortion. In the last two years the Supreme Court has broken with these precedents, declaring affirmative action to be unconstitutional (Students for Fair Admissions Cases (2023)) and ruling that abortion was not constitutionally grounded in Dobbs V. Jackson Women’s Health Organization 2022. Although abandoning these precedents may suggest that Justice O’Connor’s impact has diminished, her defenses for both affirmative actions and abortions were at least partially responsible for their constitutional foundation for several more years.
In teaching constitutional and other cases where Justice O’Connor was a key player, I’ve appreciated her tendency for legal decisions to be based on the impact they have in the real world. This approach has sometimes led to standards or balancing tests that are criticized for being too vague. It may be that it’s difficult to assess the full impact of legal doctrines on the ground. However, I think O’Connor’s effort was a step in right direction. In examining the First Amendment’s prohibition on the establishment of religion, O’Connor considered whether a religious display might suggest that the government endorses religion in the minds of a reasonable person ( Lynch v. Donnelly, 1984). O’Connor’s co-authored majority in the Casey case invalidated the requirement that a spouse be notified of an abortion decision. They did so based on social science evidence and other information about the seriousness of the domestic violence threat that could result. This recognition of the link between abortion and domestic abuse has opened the door for more scholarly research and advocacy.
Justice O’Connor’s voice has been missing on the Supreme Court since she retired, but her legacy lives on through scholarship, advocacy and judging.