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Former Supreme Court Justice Sandra Day O'Connor Has Died; Appeals Court Rules Trump Doesn't Have Presidential Immunity from Civil Lawsuits Over January 6 Riots. Aired 10-10:30a ET

Aired December 01, 2023 - 10:00   ET



JOAN BISKUPIC, CNN SENIOR SUPREME COURT ANALYST: So, from her state experience, she really favored state authority in the face of what was seen in the 1990s as a federal government encroachment.

So, you know, quite a deep legacy, and quite the important figure, off of the bench, too, not just in terms of the inspiring men and women across the country, but she was very active after she stepped down. I should say, interestingly enough, and she stepped down because her husband at the time had Alzheimer's, and that is what she, herself, was suffering from in the last decade, give or take. And today, when the Supreme Court announced her death, it noted she died from complications at age 93 died, lived such a long, important life, at age 93, died from complications from Alzheimer's. Kate?

SARA SIDNER, CNN ANCHOR: Joan, she was put in by Ronald Reagan, nominated by Ronald Reagan, but she was considered a swing vote, and she sided most often with the conservatives, but she was such a powerful presence on that court and to the American public.

And when you are looking at the court today, she seems to be from that era of a higher respect for the Supreme Court. Would you agree?

BISKUPIC: Oh, definitely. First of all, she could garner respect inside of the room, conference room, and outside. As I said, you know, she was a politician. She was a politician. She came to Washington knowing how to count votes, and she had real authority within the court's conference room.

She was also like the social glue. She was always trying to get her colleagues to do things after hours together, because she knew that that built relationships.

And then for her image outside those marble walls, she did a lot of public speaking. She was involved very much in the educational effort for civics education. She worked a lot with Eastern European countries when they were developing their Constitutions in the '90s and into the 2000s.

She really saw her role as one inside of the court and beyond and she believed in the institution of the court and felt a real sense of integrity. She wanted the court to be held in high stature, and it would bother her when -- you know, frankly, we've had a lot of ethics controversy recently. Never forget, she got caught cross-wised with Justice Scalia over an ethics deal having to do with his hunting trip with Dick Cheney way back when, which I won't get into.

But I'm just saying that she -- to answer your question here, she just had an authority with her colleagues and a stature that I think the American public responded to. She was someone who -- whenever I followed her around her speeches, her speeches would draw lots and lots of folks.

Again, it was not just women. It was men and women who felt that what she stood for in terms of her regard for the separation of power, it's the role of the states relative to the role of the federal government, was very, very important.

JOHN BERMAN, CNN ANCHOR: Joan, standby, if you will. Ariane de Vogue, our Supreme Court reporter, is on the phone with us right now.

Sandra Day O'Connor was a trailblazer. I mean, it's almost beyond imagination to think that it wasn't until 1981 that a woman was on the Supreme Court. Give us your reaction and what you've learned about her passing.

ARIANE DE VOGUE, CNN SUPREME COURT REPORTER (voice over): Well, it is absolutely right, because Sandra Day O'Connor was alone on the court. And what strikes me the most is, in recent years, the other female justices, the late Justice Ruth Bader Ginsburg, Elena Kagan, Sotomayor, Barrett, they all considered Sandra Day O'Connor the person who cleared way for them to be on the bench. She was such an inspiration to so many of them. I think that Ruth Bader Ginsburg used to call her, my bigger sister.

Now, they didn't agree, right, on all the issues, but that was the role that Sandra Day O'Connor played. This announcement came this morning, relatively early here at the court. The justices aren't in the building, but they are going to sit again for arguments next week.

And Sandra Day O'Connor had been ill with Alzheimer's. And as statement says that she died from complications related to advanced dementia, probably Alzheimer's, and a respiratory illness. She was 93 years old. She hasn't been here for a while. But Joan talked about, she played such a role on the court for pragmatism. That is what she believed from her background. She thought that that's what she could deliver.

The court when these deaths occurred, even though she was retired, it's like a small family up here. They have not announced funeral plans, but expect that to come probably later on today.

KATE BOLDUAN, CNN ANCHOR: Ariane, talk more though about -- she -- trailblazer, yes, her attributes is also kind of somewhat of a politician and knowing how to work a room, if you will. But she has had such a strong hand as a justice on so many aspects of American life. Talk about her legal legacy, if you will.

DE VOGUE (voice over): And she did. And in her legal legacy, although she was definitely faltering in later years, she did see that being chipped away by this new conservative court in the area, obviously, of abortion and affirmative action.

Chief Justice John Roberts has released a statement I wanted to read for you. He called her a daughter of the American Southwest, Sandra Day O'Connor, a blaze of historic trail as our nation's first female justice. She met that challenge with undaunted determination, indisputable ability and engaging candor.

And I think that's what's so interesting, the fact that when she was in conference, that's what she was looking at. She was trying to get to the nub of the cases so that the court could rely on something that was common sense.

He said, we, as 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.

Remember, she left the bench only because her husband was ill with Alzheimer's. That's why she decided to step down. And so then how poignant that she too ended up suffering from the same disease.

BERMAN: And you mentioned, Ariane, she was on the bench as the only woman for a long, long time.

DE VOGUE (voice over): Yes. And I remember covering an event a few years ago. And she had just retired, but she was on the stage with Justice Ruth Bader Ginsburg at this speaking event. And later, Kagan would talk about her.

And Justice Sotomayor, these women who feel like that they made the bench, they got on the bench because Sandra Day O'Connor opened the door to that.

And, of course, she was so attractive to President Reagan because of her background. She had such an unusual background. Growing up on a range, she considered herself from the west. She was a Westerner on this bench. And she had come from her local politics to reach the highest court in the land.

It's very poignant, her effect on women across the country. And you are going to hear about that today and in the days to come, her impact on other young lawyers who really tried to follow in her footsteps.

SIDNER: Ariane de Vogue, thank you for going through that with us.

I'm just going to remind people what the breaking news is at this hour because there has been quite a lot. This time, it is Justice Sandra Day O'Connor, the very first woman to be appointed to the Supreme Court. She has died from complications from Alzheimer's.

We do now have Steve Vladeck, who is a CNN legal analyst for us, with us.

Can you just give us a sense, just your sense of Sandra Day O'Connor, your sense of the importance of this person who was truly a trailblazer? I remember studying her when she went into the court in the 1980s. It is remarkable what her life means to a lot of women, especially, but also to the country because some of the decisions she made were huge for this country.

STEVE VLADECK, CNN LEGAL ANALYST: There's no question. I mean, just one really, really small example, before Justice O'Connor joined the court in 1981, the justices referred to each other as brothers, as brethren, you would refer to a justice as Mr. Justice Brennan. That stops when she joins the court. I mean, she really opens the door you know, breaks down the glass ceiling and create so many just changes in the court's behavior on and off the bench. We see changes in the opinion writing. We see more accounting for you know the role of women in every facet of society in the court's jurisprudence.

But I think the other point that we shouldn't lose sight of in talking about and in eulogizing Justice O'Connor is that even if her time on the bench started as this remarkable moment for gender equality, she also becomes the critical middle of the court during her, you know, 25 years on the bench. I mean, by, you know, the mid-1990s, the court basically moves as she wants it to move. She's the most important vote in all of those ideologically-charged cases.

And I think one of the things about O'Connor is she actually helped to bring the two sides of the court together, so much so that when she retired in 2006, Justice Scalia wrote to her asking, who is going to forge those bonds ?


Who is going to keep us together now that you've left? You know, guys, 17 years later, I think we still haven't answered that question.

BOLDUAN: I'm saying, just thinking back on kind of what some of the female justices have said about Sandra Day O'Connor and what it's meant, and Ruth Bader Ginsburg at one point saying that Justice O'Connor was like a big sister. I mean, think about those two women justices like the sisterhood of the Supreme Court, what was necessary and needed. It's pretty amazing to think of those two women now kicking it up and having it together, I got to say.

VLADECK: Yes. And I think the other piece about this is it's not just that Justice O'Connor, you know, created this opportunity for Justice Ginsburg, for Justice Kagan, even now for Justice Sotomayor or Justice Barrett, it's also that, you know, she came from a political background. I mean, she was the last justice on the Supreme Court who had ever run for a statewide office, who had been a politician before she was a judge.

And I think that that shaped her personal experience, it shaped her professional experience. It shaped how she approached her job as a Supreme Court justice. I think it gave her a little more respect for the democratic process, deference to state governments, to, you know, elected legislatures. And ever since her departure in January 2006, when she retired and was replaced by Justice Alito, I think that voice has been missing from the court. And so I think, you know, this is what's so important about how we remember Justice O'Connor. She was a trailblazer. She was, as Evan Thomas' beautiful biography of her proclaims first, but her identity was not just about the fact that she was the first woman to serve on the Supreme Court. Her identity was also shaped by the fact that she was a politician, by the fact that she was a bridge builder, by the fact that she really thought lots of these big, legal questions actually might have small nuanced answers.

And I think that's just as much a part of her legacy and just as much a part of what's missing from the court without her in the 17 years since she retired and now that she's also passed away.

BERMAN: Two questions for you, Steve, very quickly. Number one, what opinion or what decision that she was on, will she be most remembered for? Is there one that you can point to? And, number two, who on the court now most resembles Sandra Day O'Connor?

VLADECK: I mean, I'll take the second question first, because the answer is nobody. She was unique in any number of respects. But one of the things that made her unique was she had a very pragmatic approach to judging. She really didn't think the court should be going out of its way to decide more than it had to.

This often opened her up for a lot of criticism from her colleagues, from law professors, that she was actually often deciding cases really quite small, as opposed to, say, Justice Anthony Kennedy, right, who would often reach for more grasping, soaring principles and rhetoric.

So, I actually think there really isn't a justice on the court today that resembles Justice O'Connor's judicial philosophy, her approach, guides her background or experiences. And I think that's a problem, whether you are sympathetic to Justice O'Connor's politics or not.

To the first question, man, I mean, one of the things about Justice O'Connor's judicial philosophy is that it means she didn't have a lot of massively, principle-setting, foundation-altering opinions. Just one that really comes foremost to mind, guys, is in 2004, she wrote what's a plurality opinion, so not for the full court, but for four justices, in one of the first big post-911 terrorism cases, a case called the Hamdi versus Rumsfeld, where she actually held and had two more justices from the left joining her, so this was a majority, that went with regard to a U.S. citizen who was being held by the federal government as an enemy combatant.

He actually was entitled to a really rigorous hearing to meaningful due process in order to be detained without criminal charges. That was a pretty big deal coming in that moment in 2004. I think that's one of her big opinions.

She wrote some pretty landmark opinions in the context of federal power. She was a big defender of states' rights as the Supreme Court turns toward federals and principles in the 1990s. But, again, I think what defined Justice O'Connor's tenure on the court was actually this very point that is hard to attribute to her any big, overarching, cross-cutting constitutional decisions, constitutional theories, because she really wanted to take the cases one at a time.


And I think that was a source of a lot of pushback against her during her 25 years on the court, but in the 17 years since she's retired, I think a lot of us have come to appreciate that maybe there was more value in that pragmatic, sensible approach to being a Supreme Court justice than we might have appreciated at the time.

BERMAN: All right. Steve Vladeck, standby, if you will. There was a lot of breaking news this morning. Senator Day O'Connor, the first woman to sit on the U.S. Supreme Court, has passed away.

And on Capitol Hill, huge developments, Republican House leadership, including House Speaker Mike Johnson, and now we just learned Elise Stefanik, moving to rescue George Santos from expulsion. The momentum seems to be in favor of saving George Santos. That vote happening any minute now.

So, standby, much more ahead.



BOLDUAN: And back to our breaking news. Former Supreme Court Justice Sandra Day O'Connor, the first woman to sit on the highest court in the land, she has died. Her passing announced this morning by the Supreme Court.

CNN's Jessica Schneider has more.


JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT (voice over): Sandra Day O'Connor grew up a cowgirl from Arizona, 25 miles from the nearest town.

FORMER JUSTICE SANDRA DAY O'CONNOR, U.S. SUPREME COURT: I tend to be a bit of a pragmatist probably, because we had to solve all our own problems out on the ranch. If the truck broke down, we had to fix it. If some animal needed medical attention, we had to provide it. There wasn't much we didn't have to do.

SCHNEIDER: She had the toughness ranch life can breed.

MARCI HAMILTON, FORMER O'CONNOR LAW CLERK: She was incredibly fearless about life and part of that was because her early life was very hard. Her parents died, her grandmother died, she was shuttled back and forth between the ranch and relatives in Texas to go to school and she just became very self-sufficient.

SCHNEIDER: O'Connor went to Stanford in the same law class as future Chief Justice William Rehnquist. They dated for a time and he even proposed. She turned him down, but they stayed lifelong friends. Upon graduation, no law firm would hire O'Connor, so she eventually helped start her own, later becoming a powerful state lawmaker, then judge.

UNIDENTIFIED MALE: President Reagan today settled the question of when he would nominate a woman to the nation's highest court.

RONALD REAGAN, FMR. FORMER U.S. PRESIDENT: She is truly a person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good.

SCHNEIDER: In 1981, President Ronald Reagan nominated her to be the first woman on the Supreme Court. The Senate confirmed O'Connor unanimously, 99-0.

In 1988, the justice survived a breast cancer scare and returned to work just ten days after surgery. Her dry, western wit remained intact.

O'CONNOR: The worst was my public visibility, frankly. There was constant media coverage. How does she look? When is she going to step down and give the president another vacancy on the court?

SCHNEIDER: Over time, O'Connor became known as a moderate conservative on the court and often the swing vote on hot button social issues, a reference she didn't like.

O'CONNOR: We have an equal voice and I'm no more powerful than anyone else on this court. That's for sure.

SCHNEIDER: Some criticized her as a fence sitter, waiting to see which way the wind would blow.

HAMILTON: Those would be the people who have never met her. Anybody who's met her knows that she makes up her own mind, and she's not at all concerned about where anybody else is on the spectrum.

SCHNEIDER: Her most well-known votes, upholding abortion rights in Planned Parenthood versus Casey, supporting the University of Michigan Law School's affirmative action program, and siding with her conservative colleagues in favor of George W. Bush in Bush versus Gore.

In 2006, she stepped down from the court to care for her husband, John, who had Alzheimer's disease. She became a passionate advocate for Alzheimer's research.

O'CONNOR: It does take a staggering toll on the families and the caregivers. I can certainly attest to that.

SCHNEIDER: In 2018, O'Connor revealed she too had been diagnosed with dementia and withdrew from public life.

The retired justice was grateful, she wrote, for her countless blessings and experiences, including helping to break the glass ceiling.

O'CONNOR: It wasn't too many years before I was born that women in this country got the right to vote, for heaven's sakes. And in my lifetime, I have seen unbelievable changes in the opportunities for women. I think it's important that women are well represented, that it is not an all-male governance as it once was.


SIDNER: Sandra Day O'Connor died just today, our breaking news for you this morning.

But we have plenty of breaking news that is happening right now, especially on Capitol Hill, where we will go back to in just a bit, where a vote to expel George Santos is about to get underway.

And we have more breaking news, this time in regards to President Trump, and whether he has presidential immunity from civil lawsuits that have come in over January 6th.


An appeals court from D.C. has weighed in.

We will have all that in just a bit.


BERMAN: All right. We have more breaking news. We just got word of an appeals court decision regarding Donald Trump that has huge precedent- setting implications for both Trump and the presidency overall. The court ruled that Trump does not have presidential immunity from lawsuits concerning January 6th.


CNN Crime Justice Reporter -- Senior Crime Justice Reporter Katelyn Polantz is with us, as well as CNN Senior Legal Analyst Elie Honig.