“We All Owe a Debt of Gratitude to Justice Sandra Day O’Connor”
BU LAW dean says first female justice to serve on the Supreme Court helped break down barriers for “women in the legal profession, and critically, on the highest court in our nation”
Sandra Day O’Connor’s legacy—both as the trailblazing Arizona cattle rancher who became the first female justice on the United States Supreme Court and as a jurist who often cast the tie-breaking vote on major cases—can be seen in courtrooms and law schools across the country.
“We all owe a debt of gratitude to Justice Sandra Day O’Connor for all the barriers she helped break down for women in the legal profession, and critically, on the highest court in our nation,” says Angela Onwuachi-Willig, dean of the Boston University School of Law and Ryan Roth Gallo Professor of Law.
O’Connor, who died December 1 at age 93, was appointed to the Supreme Court by Ronald Reagan in 1981. When she took her seat on the bench that September, the Supreme Court building didn’t even have a women’s restroom. She went on to serve for nearly 25 years, weighing in on landmark cases about affirmative action, abortion, voting rights, religious liberty, gay equality, and free speech, before retiring in 2006.
O’Connor died December 1 in Phoenix, Ariz., “of complications related to advanced dementia, probably Alzheimer’s, and a respiratory illness,” according to a news release issued by the Supreme Court.
“I always feel a little stunned when I look at pictures of the Supreme Court when Justice O’Connor was the sole female justice, for two reasons,” Onwauchi-Willig says. “First, looking at those photos makes me pause and appreciate how lucky I am to have the opportunity to work in spaces with other women and women of color attorneys, and it fortifies my appreciation for Justice O’Connor, who really blazed a trail for all of us. Second, it makes me realize how accustomed we have all become to seeing many women on the Supreme Court. That progress would not have happened without Justice O’Connor.”
As a jurist, O’Connor “seemed to approach each case with not only intelligence, but also integrity, thoughtfulness, and a desire to listen and learn from her colleagues, from the attorneys arguing the cases before her, and from people as a whole,” Onwauchi-Willig says. “In a Stanford Law Review essay I have cited numerous times, she wrote beautifully about how she learned about the lived realities of others, particularly Black people and those caught up in the criminal system, from Justice Thurgood Marshall,” the first Black justice on the high court.
Indeed, O’Connor’s opinions echo throughout the court even now.
In June, when the Supreme Court rolled back the decades-long practice of considering race as one of many factors in college admissions decisions, a comment by O’Connor—one she made 20 years earlier, in a different affirmative-action case—became a central talking point.
However, O’Connor never meant for her successors to wield her words as a cudgel against race-conscious admissions practices—a stance she made clear even after her retirement from the bench.
Until June, a 2003 case, Grutter v. Bollinger, set the standard for college admissions processes by examining those at Michigan Law School. O’Connor, writing the opinion for the 5-4 majority in Grutter, credited the law school for its narrowly tailored “use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
This case came to the court 25 years after another affirmative-action case, Regents of the University of California v. Bakke, in 1978. Bakke “approved the use of race to further an interest in student body diversity in the context of public higher education,” O’Connor wrote. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Two decades later, O’Connor’s message was reported as a mandate, a “clock ticking” down to the expiration of race-conscious admissions policies, and a justification for the court’s opinion in the 2023 cases against Harvard and the University of North Carolina.
But that’s not at all what O’Connor meant, and she wrote as much in an essay for Cornell Law School. “That 25-year expectation is, of course, far from binding on any justices who may be responsible for entertaining a challenge to an affirmative-action program in 2028,” she wrote. “Those justices will be charged—as [Justice] Lewis Powell was in Bakke in 1978, and as the Court was in Grutter in 2003—with applying abstract constitutional principles to concrete educational endeavors.”
O’Connor’s opinion in Grutter, Onwuachi-Willig says, “reveals a jurist who heard and carefully took in the words from a span of voices in amicus briefs. To me, her opinion in Grutter reads like she was testifying about how she herself understood and appreciated the benefits of diversity—how she had benefited, grown, and learned as a result of diversity.”
Still, if her words were twisted after the fact, O’Connor was willing to “later share her mistakes with us,” Owauchi-Willig says, a practice she deeply admires.
“As we all grapple with the Harvard-UNC affirmative action case, which treats her expectation or hope in Grutter that affirmative action would not be needed in 25 years as mandatory, I am grateful for her willingness, post-retirement, to articulate her regrets about that line. She and the example she set for all of us will be missed.”