Swing Voter's Lament: At Least One Case Still Bugs O'Connor

Matthew Hirsch
The Recorder
November 8, 2022

In an address on Friday at the Grand Hyatt hotel in San Francisco, O'Connor voiced regret over the fallout from the Supreme Court's ruling in Republican Party of Minnesota v. White, 536 U.S. 765, a case decided in 2002. As she often did in her last years on the bench, O'Connor cast the deciding fifth vote in the White case.

The ruling said states should not restrict judicial candidates from expressing their views on hot political topics, like abortion.

As a result, many states rolled back limits on speech for judicial candidates, which had been embedded in the codes of judicial conduct. Interest groups reacted by pushing harder to tease out judicial candidates' positions on political issues.

In a candid admission to California judges who came to hear O'Connor's speech, part of a three-day-long Summit of Judicial Leaders sponsored by the state Judicial Council, the retired justice said she doesn't second-guess many of her past decisions, "but that White case, I confess, does give me pause."

Since hanging up her robe in January, O'Connor has been hard at work trying to counteract perceived threats to judicial independence. In a Sept. 27 Wall Street Journal column, she argued against a South Dakota ballot measure that would make it easier for losing parties in court to sue the judge, and last month she went on CNN with Justice Stephen Breyer to talk about other threats to the judiciary.

She also hosted a conference in Washington, D.C., last month where California Chief Justice Ronald George talked about how the U.S. Supreme Court's ruling in White helped contribute to more politicized judicial elections. He said O'Connor was especially interested in hearing about the negative impact of the decision.

"By the end of the conference, she said -- and I'm not just talking outside the school room, she said this publicly -- she said, 'Sometimes we just don't get it right,'" George said.

It seems O'Connor has become virtually synonymous with the idea of judicial independence since her retirement. When George introduced O'Connor before her speech Friday, he said he found 99,600 references searching the Internet for the terms "Sandra Day O'Connor" and "judicial independence."