Sandra Day O’Connor, appointed by President Ronald Reagan in September 1981, kept the court in balance with her sense of fairness and justice for nearly 25 years. Currently, the court has no one in the center to balance the right and left wings of the court.
Justice O’Connor helped Roe v. Wade remain the law of the land for nearly 50 years. She dissented against abuses on the left and the right. She dissented in favor of veterans’ rights and the rights of property owners.
Justice Sandra Day O’Connor, the first woman on the court, wrote the decision in Planned Parenthood v. Casey upholding Roe: “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that definition of liberty is still questioned.” O’Connor wrote: “Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in the case before us is ‘liberty.’”
She continued, “Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”
After retiring from the Court in January 2006, she told the New York Times, “I step away for a couple of years and there’s no telling what’s going to happen.” Justice O’Connor continued, “Citizens United was an increasing problem for maintaining an independent judiciary.” New York Times, Jan. 26, 2010.
Justice O’Connor continued, “in invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.” And she was right to predict that campaign spending would blossom into billionaires filling the airwaves with an onslaught to commercials with no limit in sight.
In Kelo v. City of New London, Connnecticut, the city took Mrs. Kelo’s property for the private use by the Pfizer drug company. The Fifth Amendment allows the taking of private property for a public purpose. The Supreme Court allowed the taking of Mrs. Kelo’s longtime home for a private purpose. Justice O’Connor in a strongly-worded dissent argued: “Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded – i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public–in the process.”
She continued, “New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.”
Justice O’Connor warned America: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz- Carlton. …”
Justice O’Connor wrote a bitter dissent in the LSD case, United States v. Stanley 483 US 669 (June 5, 1987). In 1975, James Stanley received a letter from the Walter Reed Army Medical Center asking if Mr. Stanley would participate in a follow-up study concerning the LSD testing that took place in 1958. Stanley was, understandably, extremely upset. He finally understood what had happened to him, his family and his mind. Because he was angry at what his government had done to him, he sought justice in the courts.
By the slimmest of majorities, the court ruled that the government was immune from suit by those who were in the military. According to the court, lawsuits of this type would interfere with military discipline. They ruled that it would be “inappropriate for soldiers to be allowed to sue their superior officers.” The court did not say what the effects of the suit would be on Army morale: our soldiers are being treated like second-class citizens and are being forced to give up their constitutional rights.”
Justice O’Connor dissented, “In my view, conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission … [and we] cannot insulate defendants from liability for deliberate and calculated exposure of otherwise healthy military personnel to medical experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of lysergic acid diethylamide on human beings. No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case.”
Without a sensible middle justice on the court, there is no one to replace Sandra Day O’Connor. We have lost a Republican with a strong sense of fairness and justice who balanced the court and kept the court focused on right and wrong, not right and left.
Joel D. Joseph is a lawyer and author of 15 books, including “Black Mondays: Worst Decisions of the Supreme Court” and “Inequality in America: 10 Causes and 10 Cures.” He is founder and chairman of the Made in the USA Foundation, a non-profit organization dedicated to promoting American-made products. He testified and lobbied successfully for the American Automobile Labeling Act and the Country of Origin Labeling Act. These federal laws provide consumers with information about where products are made.
From The Progressive Populist, February 1, 2024
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