Sandra O'Connor's Choice: What Her Missing Supreme Court Vote Means to Women and America

"Gosh, I step away for a couple of years and there's no telling what's going to happen," former Supreme Court Justice Sandra Day O'Connor joked recently in a speech at Georgetown University.

No kidding. Just a few days earlier, the court had issued a 5-4 ruling that liberates corporations to spend as much as they want on political campaigns. It was one of those what-if moments -- as in what if O'Connor, a former state legislator and a supporter of campaign finance regulation, had not left the court in 2006 to care for her sick husband?

I'm in the deeply-respect-but-even-more-deeply-regret camp. Marcia Greenberger, co-president of the National Women's Law Center, perfectly captured this wistful ambivalence. "I wish she had made different personal decisions for the sake of the law and the country," she told me. "But I would never criticize her for making the decision that she did."

The latest reminder of O'Connor's lost vote is the Jan. 21 campaign finance ruling, so controversial that President Obama attacked it in his State of the Union address and Justice Samuel Alito mouthed "not true" as he did so. Based on Connor's opinion in a 2003 campaign finance case and her comments on the new one, it's almost certain she would have voted against giving corporations this massive new way to influence elections.

Legal scholars say O'Connor's absence has had a similar effect, or will have one, in major cases involving race, gender, religion, abortion, and the death penalty. She was the swing vote on what SCOTUSblog.com publisher Tom Goldstein calls the "highest profile, most consequential social questions" that touch every person's life. Her departure, he told me, has been "profoundly important" in its impact.

Nominated by Republican Ronald Reagan to be the first woman on the Supreme Court, O'Connor brought a unique perspective. She was a law school graduate who had been offered secretarial jobs. She was a justice who, after listening to her new colleague Antonin Scalia rail against affirmative action, responded: "How do you think I got my job?" She was a pioneer, but she was also somewhat traditional. According to Joan Biskupic's biography, O'Connor once told a conclave of women judges that women should always put family first.

That was in 1982, right after she became a justice. More than two decades later, O'Connor's decision to leave the court reflected women's continuing role as primary nurturers and caregivers. Several court watchers I contacted could not name any male justice who had stepped down for family reasons. "Let's give her credit for being a good spouse, which one hopes wouldn't be limited to women," Jeffrey Rosen of George Washington University told me. "But it's true, it's hard to think of men."

O'Connor's husband, John, a lawyer, was diagnosed with Alzheimer's disease in 1990. As he worsened, she brought him to work with her because he couldn't be left alone. In July 2005, a year earlier than she had planned, she announced she would retire as soon as a successor could be confirmed. The early announcement came because Chief Justice William Rehnquist, though very ill with thyroid cancer, told her he did not intend to step down.

As a former state legislative leader in Arizona, O'Connor understood politics and did not want President Bush or the nation to have to deal with two Senate confirmation battles at the same time. So she accelerated her departure. Her generous gesture failed, as it turned out, because Rehnquist died in September 2005. By early 2006 a new court was in place with John Roberts and Alito -- both white, male, and reliably conservative.

O'Connor, meanwhile, placed her husband in a care center in Phoenix. In November 2007, a Phoenix TV station featured the family in a report about Alzheimer patients who forget their spouses and have romances with fellow patients. Scott O'Connor, one of the couple's three sons, said his mother sometimes visited his father while he was sitting on the porch holding hands with his new girlfriend. "He was a teenager in love. He was happy," Scott O'Connor told KPNX-TV. "Mom was thrilled that Dad was relaxed and happy and comfortable living here." John O'Connor died in November 2009.

Since she left the court, O'Connor has played an active role in civic life. She started right off by criticizing Republican attacks on judges (she didn't name names, but she quoted then-Rep. Tom DeLay.) She's been on a number of commissions, including the Baker-Hamilton "Iraq Study Group." She is currently pushing for states to appoint judges, rather than elect them in political campaigns that she says are vulnerable to manipulation by those with money and interests before state courts.

Those are valuable contributions. But in the meantime, the Supreme Court has been rolling out 5-4 decisions that might have turned out differently had she been there to vote on them. They include four from 2007 alone:

-- Parents Involved in Community Schools v. Seattle School District No. 1. Parents challenged Seattle's use of race as one of the tiebreakers when too many kids chose the same schools. The court ruled 5-4 that the district did not present a "compelling" interest justifying the use of race to assign schools.

-- Gonzales v. Carhart. The court voted 5-4 to uphold a congressional ban on late-term, "partial-birth" abortions.

-- Hein v. Freedom From Religion Foundation. The court ruled 5-4 that taxpayers don't have the right to challenge whether spending by the executive branch (in this case, for the White House Office of Community and Faith-Based Initiatives) is constitutional.

-- Ledbetter v. Goodyear Tire & Rubber Co. Lilly Ledbetter learned nearly 20 years after starting work that men with her job had gotten bigger raises and were making a lot more money. The court ruled 5-4 that under federal law, people could only file claims of race or gender discrimination if they did so within 180 days of when the alleged discrimination first occurred. Congress changed the law last year.

And then there's this month's 5-4 decision in Citizens United v. Federal Election Commission, which overturns federal restrictions on corporate campaign contributions as well as two dozen state laws restricting corporate spending in local contests. O'Connor says the ruling essentially reverses the 2003 opinion she helped write and threatens the independence of state courts. "It has the effect of turning judges into these politically elected figures in arms races, if you will, by people with the means to support them," she told CNN.

O'Connor did not intend her career on the high court to end the way it did. She told Newsweek in February 2007 that she probably would have worked until she died or became incapacitated, like most justices. "Most of them get ill and are really in bad shape, which I would've done at the end of the day myself, I suppose, except my husband was ill and I needed to take action there," she said.

There have only been three women justices, two of them still on the court, so we can't know if O'Connor has set a template for handling family responsibilities. And of course, each situation is different. O'Connor's home base and family are in Phoenix, and that's where her husband needed to be. Furthermore, Biskupic writes that some saw "symmetry" in her sacrifice, because John O'Connor had traded an "impressive partnership" at a Phoenix law firm for a lesser legal career in Washington.

O'Connor will be 80 in March. "She was, and is, at the top of her game," Goldstein says. And that makes it all the more painful that she's on the sidelines.