For years, newspapers and specialized magazines have been full of sad considerations about the conflictual nature of American politics, the discredit and paralysis of its institutions, and about the deep divisions in its society itself. The basic consensus that for decades had made it possible to reach compromises on social issues, on the economy and also on foreign policy, allowing the United States to consolidate the world primacy it had conquered militarily in the Second World War, economically with the great expansion of productive forces, and culturally with the prestige of academic culture and above all of popular culture (cinema, music, art), had ended.
It is a matter of debate whether this phase change began with the reaction to the cultural upheavals and reforms of the previous decade in the Seventies (Nixon), with the neo-liberal revolution of the Eighties (Reagan), with the violent political conflicts of the nineties (Clinton’s impeachment) or as a backlash to the election of the first black president in American history (Obama). What is certain is that today, after the Trump years (which still continue despite the end of his presidency), the conflict – political and social, values and institutional – has reached levels whose only precedent can be found in the years preceding the American Civil War (1861-1865).
It hasn’t always been this way. The situation today is much worse than it was in the past, even during the years of Reaganism which saw the drastic reduction of social protections, the increase in inequalities, the strengthening of endemic racism and the birth of religious extremism around “values” issues, first and foremost abortion. And yet in those years, unlike today, one could be a Republican but a moderate, bitterly polemical but respectful of institutional rules, socially conservative without demonizing one’s political opponent or neighbor. Above all, there was less verbal violence in politics and fewer people ready to use physical violence.
If there is an emblematic figure of this different – and better – period of American political and social life it is Supreme Court justice Sandra Day O’Connor, who died in early December at the age of 93. O’Connor had been appointed to the country’s highest judiciary by Ronald Reagan in 1981, the first woman to hold the position. She was born in Texas to a family of wealthy cattle ranchers. She graduated from law school at Stanford University, but in those years (the 1950s) it was difficult for a woman to find employment in the legal profession. She then moved to Arizona with her husband where she held various positions in the Republican-led state legislature, becoming the first woman to lead the majority in the Senate; she was subsequently elected a judge and after several years appointed as a judge in the Arizona Court of Appeals.
When Reagan chose her for the federal Supreme Court at the beginning of the 1980s, she had a long and solid political and judicial career behind her as a conservative Republican on the hottest issues of the time (which still are today): social rights, racial discrimination, reproductive rights, gun licensing, political financing, immigration. Specifically regarding abortion, after the 1973 Roe ruling recognized a constitutionally protected right to have an abortion (albeit with certain limits), O’Connor had voted and caused the Arizona Senate to vote against the repeal of its prohibitionist laws.
However, having arrived at the Supreme Court presided over by the conservative William Rehnquist, with whom she had collaborated since her university days, she often found herself in a pivotal position between the four conservative justices and the four progressive ones. For a long time, she voted with the former group, but with opinions that distanced themselves from the more ideologically right-wing positions. On abortion, she rejected the appeals against some state laws that intended to further limit it, but she refused to overturn the 1973 ruling, maintaining that it was now a set decision. The same was true for so-called “affirmative action”, the rules aimed at combating discrimination against black people in the workforce and university admissions. O’Connor welcomed appeals against affirmative action in some specific cases, but refused to cancel the principle as her more reactionary colleagues would have liked.
A woman of firm Republican beliefs (as well as culturally conservative), in 2000 she voted with the majority of the court which delivered the electoral victory to George W. Bush by rejecting Al Gore’s appeal in Florida for the assignment of that state’s electoral college votes. Many had asked at the time that she recuse herself because she had publicly expressed her “dismay” at a possible victory for Al Gore. She did not do so, but years later when she returned to private life, she said that it had been a biased decision that had contributed to giving the court a “bad reputation”.
However, in another famous case Sandra O’Connor showed her independence and attachment to constitutional values. In 2004, at the height of the war on terrorism launched by Bush after the attack on the World Trade Center, she sided with the guarantor judges against the opinion of her more conservative colleagues (Thomas Scalia, Clarence Thomas) in the Hamdi case against Rumsfeld. Yaser Esam Hamdi was a detainee who had been captured in Afghanistan and locked up for years in Guantanamo, and deprived of the rights of both a prisoner of war and a normal defendant because he was accused of terrorism. Furthermore, he was prevented from seeing the evidence against him because the prosecution considered it a military secret. His lawyer appealed and the case went to the supreme court.
In the report on behalf of the majority, O’Connor dismantled the government’s thesis (Donald Rumsfeld was the Secretary of Defense) according to which Hamdi could be detained indefinitely as an unlawful combatant, with these memorable words which earned her applause of human rights organizations:
In difficult times we must maintain our commitment to defend at home the principles for which we fight abroad… [adding:] Despite the war on terrorism, the state of war is not a blank check to the president when the rights of the nation’s citizens are at stake… History and common sense teach us that an uncontrolled detention system can become an instrument of oppression and abuse.
Two years after this sentence, in 2006, Sandra O’Connor decided to leave the court (the appointment was for life, but she had turned 76 and said she was tired after twenty-five years on the court). At the same time, she announced that her resignation would be effective from the appointment of her successor. She could have waited another two years but, as a good Republican, she did not want the new judge to be appointed by a Democratic president should one win the elections, as in fact would happen in 2008 with the election of Obama. Thus George W. Bush, after a first failed attempt, was able to nominate Samuel Alito, an ideological conservative who moved the court’s majority decisively to the right.
In the following years, despite Obama’s appointment of two progressive female judges (Sonia Sotomayor and Elena Kagan), the court would become solidly conservative thanks to the three judges (two men and one woman) appointed by Trump. Figures of mediation like Sandra O’Connor will no longer be needed to reach a consensus of half the court. Thus, in 2022 the court was – finally! – able to overturn the Roe ruling and shortly thereafter also state affirmative action laws. The court struck down many laws that limit the possession of firearms, eliminated limits on the private financing of electoral campaigns, and has generally intervened coherently and radically in favor of positions of the more ideological Republican (and Trumpian) right.
Sandra O’Connor belonged to another time, a time when it was possible to be conservative but not far-right; to be a reactionary but respect the law and the rights of those who don’t think like you. Today this is no longer the case.
Translation by Paul Rosenberg
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