Sandra Day O\u2019Connor, who retired from the Supreme Court seven years ago, made some news the other day. In an interview with the editorial board of the Chicago Tribune, she expressed misgivings about one of the signature decisions of her judicial career: Bush v. Gore. \u201cMaybe the Court should have said, \u2018We\u2019re not going to take it, goodbye.\u2019 \u201d The case, she said, which effectively awarded the 2000 Presidential election to George W. Bush, \u201cstirred up the public\u201d and \u201cgave the Court a less than perfect reputation.\u201d<\/p>\n
It was not a full-fledged denunciation of the Court\u2019s opinion, but it was a decided shift in O\u2019Connor\u2019s views. Ever since the decision in 2000, in which a five-Justice majority ended a recount of votes that had been ordered by the Florida Supreme Court, O\u2019Connor has defended the result publicly. (She did so on \u201cThe Daily Show.\u201d) I have heard O\u2019Connor defend Bush v. Gore any number of times, at events ranging from law-school convocations to small dinner parties.<\/p>\n
So what changed? The Republican Party\u2014O\u2019Connor\u2019s Republican Party.<\/p>\n
The Court, in its history, has had many Justices who formerly held elective office\u2014Earl Warren, a former Governor of California; William Howard Taft, who\u2019d been President; Hugo Black, a onetime Senator\u2014but O\u2019Connor was last to have done so. (She was a state senator in Arizona.) That experience has always been crucial to understanding her judicial philosophy. Temperamentally as well as politically, she was a Republican, to be sure, but she was a moderate conservative; even more than Ronald Reagan, the President who appointed her, George H. W. Bush was O\u2019Connor\u2019s ideal President. In the ballot box as well as on the Supreme Court, O\u2019Connor voted for George W. Bush thinking that he would be a President much like his father. (The story of O\u2019Connor\u2019s election-night rooting for Bush in 2000 is well-known; I\u2019ve told it in two books.)<\/p>\n
As for the Presidency of the younger Bush, O\u2019Connor was disappointed, to put it mildly. The story of the last decade or so of her life is the story of her increasing alienation from the modern Republican Party. The key moment for her was the Terri Schiavo case, in 2005, when the President and congressional Republicans mobilized overnight to intervene in the case of a Florida woman who was in a persistent vegetative state, and attempted to overrule her husband\u2019s request to remove her feeding tubes. O\u2019Connor, who was at that moment dealing with the descent of her own husband into Alzheimer\u2019s disease, was appalled at the fanaticism on display. But largely because of her husband\u2019s condition, O\u2019Connor nevertheless announced her departure from the Court later that year\u2014and gave George W. Bush the chance to put his stamp, and that of the modern Republican Party, on her beloved Court.<\/p>\n
In the past seven years, O\u2019Connor has been increasingly clear about her disenchantment with the work of her successors, especially Chief Justice John G. Roberts and Samuel A. Alito, Jr., (who took her seat). She has been harshly critical of the Court\u2019s decision in Citizens United, which revolutionized the law of campaign finance. Indeed, her major outside activity since retiring has been to try to persuade states to have a system of appointed, as opposed to elected, judges. A primary reason why O\u2019Connor opposes judicial election is because of the influence of campaign contributions\u2014which is, of course, precisely the kind of spending allowed by Citizens United.<\/p>\n