U.S. Supreme Court
Sandra Day O’Connor dies at 93
Retired U.S. Supreme Court justice passed away in Phoenix
Retired Associate U.S. Supreme Court Justice Sandra Day O’Connor died on Friday in Phoenix of complications related to advanced dementia, probably Alzheimer’s, and a respiratory illness. She was 93 years old.
O’Connor was appointed to the court by President Ronald Reagan during his first term in office in 1981 and retired in 2006, after serving more than 24 years on the nation’s highest court.
A widely respected jurist, O’Connor was also a trailblazer as the first woman nominated and then confirmed by the U.S. Senate to have a seat on the court. Her judicial record showed progressive support on issues ranging from LGBTQ rights, abortion, affirmative action and campaign finance.
In a statement released by the court Friday morning, Chief Justice John Roberts said: “A daughter of the American Southwest, Sandra Day O’Connor blazed 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. And we celebrate her enduring legacy as a true public servant and patriot.”
A lifelong Republican, O’Connor’s early judicial record mirrored conservative values on most cultural legal issues. In 1986, O’Connor joined with Justice Byron White’s 5-member majority in Bowers v. Hardwick, a case out of Georgia regarding the state’s statute that criminalized sodomy.
According to court documents, Michael Hardwick was observed by a Georgia police officer engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized sodomy, Hardwick challenged the statute’s constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia’s statute was unconstitutional. Georgia’s Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.
The majority, including Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist, O’Connor with White writing the opinion, ruled that there was no particular constitutional protection against states prohibiting specific sex acts between consenting adults.
White argued that the court has acted to protect rights not easily identifiable in the constitution only when those rights are “implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937) or when they are “deeply rooted in the nation’s history and tradition” (Griswold v. Connecticut, 1965). The court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and send the court down the road of illegitimacy.
Seventeen years later however, in O’Connor reversed her position in a later case, in Lawrence v. Texas, 539 U.S. 558 (2003), voting with Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy who wrote for the majority overturning a Texas “Homosexual Conduct” law, which criminalized sexual intimacy by same-sex couples, reversing the Court’s ruling in Bowers v. Hardwick.
According to court documents, responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence’s apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the 14th Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.
Kennedy wrote in the 6-3 opinion, after explaining what the court deemed the doubtful and overstated premises of Bowers, the court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause.
“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government,” wrote Kennedy. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” continued Kennedy. Accordingly, the court overruled Bowers.
Antonin Scalia, with whom Rehnquist and Justice Clarence Thomas joined, filed dissents.
Interestingly enough though, O’Connor weighed in on LGBTQ rights in a case prior to Lawrence v. Texas, seven years earlier when she joined with Stevens, Souter, Ginsburg, Breyer and Kennedy, again writing for the majority, in Romer v. Evans.
Colorado voters had adopted Amendment 2 to their state constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”
Following a legal challenge by members of the state’s LGBTQ community and other aggrieved parties, the state trial court entered a permanent injunction enjoining Amendment 2’s enforcement. The Colorado Supreme Court affirmed on appeal.
The high court was weighing in on the question of did Amendment 2 of Colorado’s State Constitution, forbidding the extension of official protections to those who suffer discrimination due to their sexual orientation, violate the 14th Amendment’s Equal Protection Clause?
In the ruling, the court said Yes. In a 6-3 decision, the court held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out homosexual and bisexual persons, imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination.
In his opinion for the court, Kennedy noted that oftentimes a law will be sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long as it can be shown to “advance a legitimate government interest.” Amendment 2, by depriving persons of equal protection under the law due to their sexual orientation failed to advance such a legitimate interest.
He concluded: “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
In 2006, she retired from the bench. In its 2019 eleven part profile of O’Connor, the Arizona Republic highlighted her record writing:
O’Connor disliked the term “swing vote” because “it suggests something that’s not thoughtful,” according to Ruth McGregor, a former Arizona Supreme Court chief justice and a longtime friend to O’Connor.
And because O’Connor saw herself as an old-school conservative, the opinions she wrote on controversial matters — such as abortion and gay rights — didn’t come out of liberal leanings, but rather out of a firm belief in the rights of individuals to decide crucial issues in their own lives, free of government interference,” the Republic noted.
On other issues such as women’s reproductive rights, in the landmark ruling Roe v. Wade, which arose during her confirmation hearings before the Senate Judiciary Committee in 1981, because as the Republic noted, O’Connor was a woman who had presided over the Arizona Senate when it decriminalized abortion in that state, she was suspect, even though she declared her personal abhorrence for abortion.
However during the course of that confirmation hearing, she maintained that she had respect for opinions handed down by the Supreme Court, and she believed there needed to be good reason to overturn them.
In the 1992 case of Planned Parenthood v. Casey, then Justice O’Connor joined with fellow Justices Harry Blackmun, Stevens, Kennedy and Souter, in upholding Roe v. Wade.
In a bitter 5-to-4 decision, the court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement.
In a rare step, the opinion for the court was crafted and authored by three justices: O’Connor, Kennedy and Souter.
D.C.-based lawyer, journalist and LGBTQ rights activist Mark Joseph Stern writing in a Slate magazine article dated Oct. 30, 2013, about O’Connor’s stance on same-sex marriages noted:
“On Tuesday, retired Supreme Court Justice Sandra Day O’Connor officiated a same-sex marriage at the Supreme Court, the first gay wedding to take place in the court’s halls. (It wasn’t the first officiated by a justice, though; Ruth Bader Ginsburg beat O’Connor to that honor.) The event serves as a heartwarming confirmation that O’Connor’s shift to the left has continued through retirement — but it’s also a poignant reminder that the justice’s early retirement cut short what might have been an evolution from Reagan conservative to gay-rights luminary.”
California Gov. Gavin Newsom issued a statement on the passing of O’Connor Friday:
“Jennifer and I are saddened by the passing of Justice O’Connor, an American icon who left a profound mark on history as the first woman to serve on our nation’s highest court.
Surmounting countless barriers, Justice O’Connor graduated from Stanford Law School near the top of her class, rose to prominence in the Arizona statehouse as the first woman in the nation to serve as a majority leader, and served on the bench in Arizona before being nominated to the Supreme Court by President (Reagan) — with widespread support on both sides of the aisle.
A strong voice for judicial independence and the rule of law, Justice O’Connor was known for her discerning and fair-minded approach and served a pivotal role at the center of the court, including key votes reaffirming the right to abortion and upholding affirmative action in higher education.
With deep Arizona roots, Justice O’Connor was also an important voice on the court for the entire American West, championing states’ freedom to craft solutions that meet local needs across our diverse country.
Justice O’Connor opened doors for generations of women in politics and public service, and her enduring legacy is an inspiration to all of us. Our thoughts are with her family, colleagues and friends during this time of loss.”
O’Connor was born in El Paso, Texas, on March 26, 1930. She married John Jay O’Connor III in 1952. She received her B.A. and LL.B. from Stanford University. She served as Deputy County Attorney of San Mateo County, Calif., from 1952 to 1953 and as a civilian attorney for Quartermaster Market Center, Frankfurt, Germany, from 1954 to 1957.
From 1958 to 1960, she practiced law in Maryvale, Ariz., before serving as Assistant Attorney General of Arizona from 1965 to 1969. She was appointed to the Arizona State Senate in 1969 and was subsequently reelected to two two-year terms, during which she was selected as Majority Leader. In 1975 she was elected Judge of the Maricopa County Superior Court and served until 1979, when she was appointed to the Arizona Court of Appeals.
O’Connor authored five books: “Lazy B: Growing Up on a Cattle Ranch in the American Southwest” (2002); “The Majesty of the Law: Reflections of a Supreme Court Justice” (2002); “Chico” (2005); “Finding Susie” (2009) and “Out of Order: Stories from the History of the Supreme Court” (2013).
Following her tenure on the Supreme Court, she founded and led iCivics, the nation’s leading civics education platform.
She is survived by her three sons, Scott (Joanie) O’Connor, Brian (Shawn) O’Connor, and Jay (Heather) O’Connor, six grandchildren: Courtney, Adam, Keely, Weston, Dylan and Luke, and her beloved brother and co-author, Alan Day, Sr. Her husband, John O’Connor, preceded her in death in 2009.
Additional research and legal records material provided by Oyez, the free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law.
U.S. Supreme Court
Supreme Court allows Trump admin to enforce trans military ban
Litigation challenging the policy continues in the 9th Circuit
The U.S. Supreme Court on Tuesday allowed the Trump-Vance administration to enforce a ban on transgender personnel serving in the U.S. Armed Forces pending the outcome of litigation challenging the policy.
The brief order staying a March 27 preliminary injunction issued by the U.S. District Court for the Western District of Washington notes the dissents from liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
On the first day of his second term, President Donald Trump issued an executive order requiring Secretary of Defense Pete Hegseth to effectuate a ban against transgender individuals, going further than efforts under his first administration — which did not target those currently serving.
The DoD’s Feb. 26 ban argued that “the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.”
The case challenging the Pentagon’s policy is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit. The lead plaintiff is U.S. Navy Commander Emily Shilling, who is joined in the litigation by other current transgender members of the armed forces, one transgender person who would like to join, and a nonprofit whose members either are transgender troops or would like to be.
Lambda Legal and the Human Rights Campaign Foundation, both representing the plaintiffs, issued a statement Tuesday in response to the Supreme Court’s decision:
“Today’s Supreme Court ruling is a devastating blow to transgender servicemembers who have demonstrated their capabilities and commitment to our nation’s defense.
“By allowing this discriminatory ban to take effect while our challenge continues, the Court has temporarily sanctioned a policy that has nothing to do with military readiness and everything to do with prejudice.
“Transgender individuals meet the same standards and demonstrate the same values as all who serve. We remain steadfast in our belief that this ban violates constitutional guarantees of equal protection and will ultimately be struck down.”
U.S. Solicitor General D. John Sauer noted that courts must show “substantial deference” to DoD decision making on military issues.
“The Supreme Court’s decision to allow the military ban to go into effect is devastating for the thousands of qualified transgender servicemembers who have met the standards and are serving honorably, putting their lives on the line for their country every single day,” said GLAD Law Senior Director of Transgender and Queer Rights Jennifer Levi. “Today’s decision only adds to the chaos and destruction caused by this administration. It’s not the end of the case, but the havoc it will wreak is devastating and irreparable. History will confirm the weight of the injustice done today.”
“The Court has upended the lives of thousands of servicemembers without even the decency of explaining why,” said NCLR Legal Director Shannon Minter. “As a result of this decision, reached without benefit of full briefing or argument, brave troops who have dedicated their lives to the service of our country will be targeted and forced into harsh administrative separation process usually reserved for misconduct. They have proven themselves time and time again and met the same standards as every other soldier, deploying in critical positions around the globe. This is a deeply sad day for our country.”
Levi and Minter are the lead attorneys in the first two transgender military ban cases to be heard in federal court, Talbott v. Trump and Ireland v. Hegseth.
U.S. Rep. Mark Takano (D-Calif.) issued a statement on behalf of the Congressional Equality Caucus, where he serves as chair.
“By lifting the lower court’s preliminary injunction and allowing Trump to enforce his trans troop ban as litigation continues, the Supreme Court is causing real harm to brave Americans who simply want to serve their nation in uniform.
“The difference between Donald Trump, a draft dodger, and the countless brave Americans serving their country who just happen to be trans couldn’t be starker. Let me be clear: Trump’s ban isn’t going to make our country safer—it will needlessly create gaps in critical chains of military command and actively undermine our national security.
“The Supreme Court was absolutely wrong to allow this ban to take effect. I hope that lower courts move swiftly so this ban can ultimately be struck down.”
SPARTA Pride also issued a statement:
“The Roberts Court’s decision staying the preliminary injunction will allow the Trump purge of transgender service members from the military to proceed.
“Transgender Americans have served openly, honorably, and effectively in the U.S. Armed Forces for nearly a decade. Thousands of transgender troops are currently serving, and are fully qualified for the positions in which they serve.
“Every court up to now has found that this order is unconstitutional. Nevertheless, the Roberts Court – without hearing any evidence or argument – decided to allow it to go forward. So while the case continues to be argued, thousands of trans troops will be purged from the Armed Forces.
“They will lose their jobs. They will lose their commands, their promotions, their training, pay and benefits, and time. Their units will lose key players; the mission will be disrupted. This is the very definition of irreparable harm.”
Imara Jones, CEO of TransLash Media, issued the following statement:
“The Supreme Court’s decision to uphold Trump’s ban on transgender soldiers in the military, even as the judicial process works its way through the overall question of service, signals that open discrimination against trans people is fair game across American society.
“It will allow the Trump Administration to further advance its larger goal of pushing trans people from mainstream society by discharging transgender military members who are currently serving their country, even at a time when the military has struggled recently to meet its recruiting goals.
“But even more than this, all of my reporting tells me that this is a further slide down the mountain towards authoritarianism. The hard truth is that governments with authoritarian ambitions have to separate citizens between who is worthy of protection and who’s not. Trans people are clearly in the later category. And this separation justifies the authoritarian quest for more and more power. This appears to be what we are witnessing here and targeting trans people in the military is just a means to an end.”
U.S. Supreme Court
Supreme Court hears oral arguments in LGBTQ education case
Mahmoud v. Taylor plaintiffs argue for right to opt-out of LGBTQ inclusive lessons
The U.S. Supreme Court on Tuesday heard oral arguments in Mahmoud v. Taylor, a case about whether Montgomery County, Md., public schools violated the First Amendment rights of parents by not providing them an opportunity to opt their children out of reading storybooks that were part of an LGBTQ-inclusive literacy curriculum.
The school district voted in early 2022 to allow books featuring LGBTQ characters in elementary school language arts classes. When the county announced that parents would not be able to excuse their kids from these lessons, they sued on the grounds that their freedom to exercise the teachings of their Muslim, Jewish, and Christian faiths had been infringed.
The lower federal courts declined to compel the district to temporarily provide advance notice and an opportunity to opt-out of the LGBTQ inclusive curricula, and the 4th U.S. Circuit Court of Appeals determined that the parents had not shown that exposure to the storybooks compelled them to violate their religion.
“LGBTQ+ stories matter,” Human Rights Campaign President Kelley Robinson said in a statement Tuesday. “They matter so students can see themselves and their families in the books they read — so they can know they’re not alone. And they matter for all students who need to learn about the world around them and understand that while we may all be different, we all deserve to be valued and loved.”
She added, “All students lose when we limit what they can learn, what they can read, and what their teachers can say. The Supreme Court should reject this attempt to silence our educators and ban our stories.”
GLAD Law, NCLR, Family Equality, and COLAGE submitted a 40-page amicus brief on April 9, which argued the storybooks “fit squarely” within the district’s language arts curriculum, the petitioners challenging the materials incorrectly characterized them as “specialized curriculum,” and that their request for a “mandated notice-and-opt-out requirement” threatens “to sweep far more broadly.”
Lambda Legal, the Leadership Conference on Civil and Human Rights, PFLAG, and the National Women’s Law Center announced their submission of a 31-page amicus brief in a press release on April 11.
“All students benefit from a school climate that promotes acceptance and respect,” said Karen Loewy, senior counsel and director of constitutional law practice at Lambda Legal. “Ensuring that students can see themselves in the curriculum and learn about students who are different is critical for creating a positive school environment. This is particularly crucial for LGBTQ+ students and students with LGBTQ+ family members who already face unique challenges.”
The organizations’ brief cited extensive social science research pointing to the benefits of LGBTQ-inclusive instruction like “age-appropriate storybooks featuring diverse families and identities” benefits all students regardless of their identities.
Also weighing in with amici briefs on behalf of Montgomery County Public Schools were the National Education Association, the ACLU, and the American Psychological Association.
Those writing in support of the parents challenging the district’s policy included the Center for American Liberty, the Manhattan Institute, Parents Defending Education, the Alliance Defending Freedom, the Trump-Vance administration’s U.S. Department of Justice, and a coalition of Republican members of Congress.
U.S. Supreme Court
LGBTQ groups: SCOTUS case threatens coverage of preventative services beyond PrEP
Kennedy v. Braidwood oral arguments heard Monday
Following Monday’s oral arguments before the U.S. Supreme Court in Kennedy v. Braidwood Management, Inc., LGBTQ groups issued statements warning the case could imperil coverage for a broad swath of preventative services and medications beyond PrEP, which is used to reduce the risk of transmitting HIV through sex.
Plaintiffs brought the case to challenge a requirement that insurers and group health plans cover the drug regimen, arguing that the mandate “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman.”
The case has been broadened, however, such that cancer screenings, heart disease medications, medications for infants, and several other preventive care services are in jeopardy, according to a press release that GLAAD, Lambda Legal, PrEP4All, Harvard Law’s Center for Health Law and Policy Innovation (CHLPI), and the Center for HIV Law and Policy (CHLP) released on Monday.
The Trump-Vance administration has argued the independent task force responsible for recommending which preventative services must be covered with no cost-sharing for patients is constitutional because the secretary of the U.S. Department of Health and Human Services can exercise veto power and fire members of the volunteer panel of national experts in disease prevention and evidence-based medicine.
While HHS secretaries have not exercised these powers since the Affordable Care Act was passed in 2010, Braidwood could mean Trump’s health secretary, Robert F. Kennedy Jr., takes a leading role in determining which services are included in the coverage mandate.
Roll Call notes the Supreme Court case comes as the administration has suspended grants to organizations that provide care for and research HIV while the ongoing restructuring of HHS has raised questions about whether the “Ending the HIV Epidemic” begun under Trump’s first term will be continued.
“Today’s Supreme Court hearing in the Braidwood case is a pivotal moment for the health and rights of all Americans,” said GLAAD President Sarah Kate Ellis. “This case, rooted in discriminatory objections to medical necessities like PrEP, can undermine efforts to end the HIV epidemic and also jeopardize access to essential services like cancer screenings and heart disease medications, disproportionately affecting LGBTQ people and communities of color.”
She added, “Religious exemptions should not be weaponized to erode healthcare protections and restrict medically necessary, life-saving preventative healthcare for every American.”
Lambda Legal HIV Project Director Jose Abrigo said, “The Braidwood case is about whether science or politics will guide our nation’s public health policy. Allowing ideological or religious objections to override scientific consensus would set a dangerous precedent. Although this case began with an attack on PrEP coverage, a critical HIV prevention tool, it would be a serious mistake to think this only affects LGBTQ people.”
“The real target is one of the pillars of the Affordable Care Act: The preventive services protections,” Abrigo said. “That includes cancer screenings, heart disease prevention, diabetes testing, and more. If the plaintiffs succeed, the consequences will be felt across every community in this country, by anyone who relies on preventive care to stay healthy.”
He continued, “What’s at stake is whether we will uphold the promise of affordable and accessible health care for all or allow a small group of ideologues to dismantle it for everyone. We as a country are only as healthy as our neighbors and an attack on one group’s rights is an attack on all.”
PrEP4All Executive Director Jeremiah Johnson said, “We are hopeful that the justices will maintain ACA protections for PrEP and other preventive services, however, advocates are poised to fight for access no matter the outcome.”
He continued, “Implementing cost-sharing would have an enormous impact on all Americans, including LGBTQ+ individuals. Over 150 million people could suddenly find themselves having to dig deep into already strained household budgets to pay for care that they had previously received for free. Even small amounts of cost sharing lead to drops in access to preventive services.”
“For PrEP, just a $10 increase in the cost of medication doubled PrEP abandonment rates in a 2024 modeling study,” Johnson said. “Loss of PrEP access would be devastating with so much recent progress in reining in new HIV infections in the U.S. This would also be a particularly disappointing time to lose comprehensive coverage for PrEP with a once every six month injectable version set to be approved this summer.”
“Today’s oral arguments in the Braidwood case underscore what is at stake for the health and well-being of millions of Americans,” said CHLPI Clinical Fellow Anu Dairkee. “This case is not just about legal technicalities — it is about whether people across the country will continue to have access to the preventive health services they need, without cost sharing, regardless of who they are or where they come from.”
She continued, “Since the Affordable Care Act’s preventive services provision took effect in 2010, Americans have benefited from a dramatic increase in the use of services that detect disease early, promote healthy living, and reduce long-term health costs. These benefits are rooted in the work of leading scientists and public health experts, including the U.S. Preventive Services Task Force, whose recommendations are based on rigorous, peer-reviewed evidence.”
“Any shift away from cost-free access to preventive care could have wide-ranging implications, potentially limiting access for those who are already navigating economic hardship and health disparities,” Dairkee said. “If Braidwood prevails, the consequences will be felt nationwide. We risk losing access to lifesaving screenings and preventive treatments that have become standard care over the past decade.”
“This case should serve as a wake-up call: Science, not politics, must guide our health care system,” she said. “The health of our nation depends on it.”
“We are grateful for the Justices who steadfastly centered constitutionality and didn’t allow a deadly political agenda to deter them from their job at hand,” said CHLP Staff Attorney Kae Greenberg. “While we won’t know the final decision until June, what we do know now is not having access to a full range of preventative healthcare is deadly for all of us, especially those who live at the intersections of racial, gender and economic injustice.”
“We are crystal clear how the efforts to undermine the ACA, of which this is a very clear attempt, fit part and parcel into an overall agenda to rollback so much of the ways our communities access dignity and justice,” he said. “Although the plaintiffs’ arguments today were cloaked in esoteric legal language, at it’s heart, this case revolves around the Christian Right’s objection to ‘supporting’ those who they do not agree with, and is simply going to result in people dying who would otherwise have lived long lives.”
“This is why CHLP is invested and continues in advocacy with our partners, many of whom are included here,” Greenberg said.
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