Former Supreme Court Justice Sandra Day O’Connor, the first woman to serve on the Court, spoke with “Fresh Air’s” Terry Gross yesterday about her reputation as a swing voter (a term O’Connor detests) on the politically divided court. Among O’Connor’s swing decisions, she co-authored a decision supporting a woman’s right to choose, re-affirming Roe v. Wade, and voted to end the recount in Bush v. Gore. But O’Connor, who served for nearly 25 years on the court, didn’t elaborate on the decisions with Gross. Instead, she deflected:
GROSS: In one of the decisions that you wrote about pertaining to abortion, you explain why you would not agree to overturn Roe v. Wade. And you wrote: The mother who carries a child to full term is subject to anxieties, to physical constraints, to a point that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the state to insist she make the sacrifice. Her suffering is too intimate and personal for the state to insist upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperative and her place in society.
Did being a woman and being a mother inform how you wrote that?
O’CONNOR: Well, I’m sure it would have.
GROSS: Can you elaborate on that?
O’CONNOR: Well, no, just I’m female. I am a mother. I’ve gone through all of that. And I’m sure in something as sensitive as the issues that we were considering with abortion rulings and so forth, that my own personal background would’ve had some affect on my decisions. It couldn’t help but have.
GROSS: In Casey versus Planned Parenthood, which was a decision in Pennsylvania about a state’s right to add restrictions on access to abortion, you had harsh words for Judge Alito. This was before he was a Supreme Court justice, but he had written part of the decision in Casey. In his decision he upheld a certain restriction, which was that a woman had to seek her husband’s approval before getting an abortion. A wife had to seek her husband’s approval. And in your decision in the Supreme Court overturning that aspect of the decision you called that view repugnant to our present understanding of marriage and to the nature of the rights secured by the Constitution. Women do not lose their constitutionally-protected liberty when they marry. Can you elaborate on that at all?
O’CONNOR: No. I don’t think I’ll try.
O’CONNOR: That’s very sensitive and I did the best I could in that decision and I’ll leave it there.
On Bush v. Gore:
GROSS: My experience is that justices don’t like to talk about this decision, but can I ask you about Bush v. Gore or do you have a no discussion about it?
O’CONNOR: Well, I don’t want to discuss things that I’ve done that require me to look back and say what if.
GROSS: This isn’t a what – well, I don’t think this is a what if. Maybe I can ask the question and you can tell me if you’re comfortable answering.
O’CONNOR: Well, ask and I’ll deal with it.
GROSS: OK. OK. Good. So, you know, the decision was a five to four decision. It deeply divided the country. People who disagreed with the decision thought the Supreme Court had prevented a legitimate recount in Florida, thereby handing the presidency over to George W. Bush. You voted to end the recount. I don’t know if you’ve read Jeffrey Toobin’s on the subject, but he said on …
O’CONNOR: No. I haven’t.
GROSS: He said on our show that you later regretted the decision and you …
O’CONNOR: Well, I don’t know why he said that. I’ve not said that myself and it’s not anything I would want to weigh in on. There’s no point in my, at this point, saying I regret some decision I made. I’m not going to do that.
GROSS: OK. So you say you never really said that.
O’CONNOR: I hope I didn’t.
O’Connor has written a book on the court’s history, “Out of Order.”