In 1991, at a time when violent crime was ravaging cities, Sandra Day O’Connor was writing an opinion that would put more money into the pockets of serial killers.
It’s not her most famous opinion. The Supreme Court’s first female justice—who died of complications related to advanced dementia and a respiratory illness on Dec. 1 at the age of 93—tends to be associated with her rulings on Bush v. Gore and a pivotal abortion rights case. But in her majority opinion on the so-called Son of Sam law, O’Connor displayed the kind of politics-be-damned approach to jurisprudence that would come to define her as the court’s consummate swing vote.
Passed by New York state in the wake of David Berkowitz’s mid-’70s murder spree, the Son of Sam law stipulated that criminals must forfeit money they earned from books or movies about their crimes. The earnings would instead be given to the victims’ families—a heartfelt, charitable legislative gesture, and exactly the kind that rubbed O’Connor the wrong way.
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In her opinion striking down the statute, she wrote that the Son of Sam law violated the First Amendment. You can’t, she said, take earnings from a speaker just because you don’t like their message. She cited Malcolm X, Henry David Thoreau, and St. Augustine as examples of authors whose royalties might have been confiscated by the state under the well-meaning legislation. “We conclude simply that in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income,” she wrote.
O’Connor’s opinion in the case was celebrated by many in the news media, who naturally stood to gain from homicidal maniacs feeling encouraged to go public with their stories. But others—particularly terrorized city dwellers—were less than thrilled. “Justice Sandra Day O'Connor's opinion overlooks the obvious,” one Brooklyn resident wrote to The New York Times, “that criminals are punished by depriving them of those fundamental liberties that are enjoyed by noncriminals… Restricting a criminal’s ability to exploit his criminal experience seems modest.”
Raised on an Arizona cattle ranch where she learned to shoot at rattlesnakes with .22s, O’Connor was no bleeding heart. Yet her ruling on the Son of Sam law was classic O'Connor. It was liberal in its empathy for the convicted, yet its broad conflation of free market values and individual liberties was straight from the playbook forged in Reagan-Thatcher years. It also reflected her innate skepticism of laws founded on hysteria or emotionality. “Judge O'Connor's judicial philosophy is one of restraint,” said President Ronald Reagan after the Senate confirmed her 99 to zero.
On Friday, Chief Justice John G. Roberts, Jr. ,remembered Roberts—who died in Phoenix, Arizona—for blazing “an historic trail as our Nation’s first female Justice.”
“She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education,” he said. “And we celebrate her enduring legacy as a true public servant and patriot.”
O’Connor’s upbringing was central to her belief that life should be fair, not infantilizing. She was a Republican’s feminist, strong-willed but steeped in traditional values. When the White House sent over its good ol’ boys to interview her for the job of Supreme Court justice, she wowed them with her dynamic understanding of constitutional law, then served them a lunch of salmon mousse salad.
On the bench, this duality could be confounding. Though she was personally anti-abortion, for instance, O’Connor became a critical swing vote in protecting reproductive rights. Her ruling on Planned Parenthood v. Casey stipulated that abortion laws must not place an “undue burden” on women, even as it opened the door to pro-life interpretations of what “undue burden” means. Likewise, for women seeking equality on campus, O’Connor voted with the court’s liberals in ruling that the Virginia Military Institute must admit women in 1996. Two years later, the same justice stood with the court’s conservative majority in limiting students' use of Title IX to seek recourse for sexual harassment.
These contradictions kept O’Connor from achieving the iconic status of Ruth Bader Ginsburg, whose “Notorious R.B.G.” persona became a staple of Brooklyn boutiques. Ginsburg was a godsend for liberals in search of a feisty new Bern to feel. O’Connor’s style of jurisprudence, on the other hand, was never the kind that moves merch. Her rugged individualism didn’t lend itself to tribalism or branding—it would have been difficult to figure out exactly which group should screen-print her face on a t-shirt. Had anyone tried, she probably would have responded with her signature, pursed-lip frown. Where Ginsburg carried a torch for progressives, O’Connor frustrated any group that hoped she would carry theirs.
In this sense, she was like her fellow Arizonan John McCain, whose political convictions made him less traditionally partisan than many of his colleagues. But while the affable McCain was often described as a happy warrior, O’Connor was a self-serious jurist. Maybe she had to be. As the first woman to sit on the Supreme Court, the pressure was immense. “The power I exert on the court depends on the power of my arguments, not on my gender,” she once said. The fact that she even had to make that proclamation in 1991 is incredible. It’s possible that she realized that being strident wasn’t an option for her. Or perhaps, as a taciturn rancher from a quiet desert town, grandstanding just wasn’t her style.
The caution she exhibited, however, made some of her rulings particularly malleable, and allowed other judges and legislators to futz with the intentions of her rulings over time. Planned Parenthood v. Casey is the most dramatic example. Many states have even found ways to bring back Son of Sam laws, enacting creative new legislation to keep criminals from profiting from their stories. Who knows how today’s court would view such laws, without a swing voter in sight.
