Samuel A. Alito Jr. replaced Sandra Day O’Connor on the Supreme Court, taking his seat on January 31, 2006, after the Senate confirmed him 58–42.1Justia. Samuel A. Alito, Jr. The swap mattered far beyond the usual arrival of a new justice: O’Connor had spent years as the Court’s decisive swing vote, and Alito’s more consistently conservative record ultimately contributed to the reversal of major precedents she had helped build.
Why O’Connor’s Seat Opened
On July 1, 2005, O’Connor announced she would retire once a successor was confirmed.2SCOTUSblog. O’Connor Retires She had served 24 terms after her unanimous 99–0 confirmation in 1981 as the first woman on the Court.3National Archives. Sandra Day O’Connor Her reason for stepping down was personal: her husband, John O’Connor III, was living with Alzheimer’s disease, and she wanted to care for him.4New York Times. Sandra Day O’Connor’s Dementia
How the Seat Finally Went to Alito
The path to filling O’Connor’s seat was unusually tangled, moving through three nominees in four months.
President George W. Bush first nominated federal appeals judge John G. Roberts Jr. on July 29, 2005.5U.S. Senate. Supreme Court Nominations, 1789–Present Then Chief Justice William Rehnquist died on September 3, 2005.6NPR. Bush Shifts Strategy on Roberts High Court Bid Bush withdrew Roberts from the O’Connor nomination three days later and sent him up for chief justice instead; Roberts was confirmed in that role on September 29, 2005, leaving O’Connor’s seat still vacant.7Justia. Roberts Court
On October 3, 2005, Bush nominated White House Counsel Harriet Miers. The nomination collapsed under opposition from the president’s own base, which cited her lack of judicial experience and limited constitutional record, alongside bipartisan Senate demands for her internal legal advice that the White House said conflicted with executive privilege.8Washington Post. Miers, Under Fire From Right, Withdrawn as Court Nominee Miers withdrew on October 27, 2005, 24 days after being named.9The American Presidency Project. Statement Announcing the Withdrawal of the Nomination of Harriet E. Miers
Four days later, on October 31, 2005, Bush nominated Judge Samuel A. Alito Jr. of the U.S. Court of Appeals for the Third Circuit. In his announcement, Bush said Alito had “more prior judicial experience than any Supreme Court nominee in more than 70 years.”10George W. Bush White House Archives. Remarks on the Nomination of Samuel A. Alito, Jr. Before the bench, Alito had been a federal prosecutor, Assistant to the Solicitor General (where he argued 12 cases before the Supreme Court), and U.S. Attorney for the District of New Jersey.11The American Presidency Project. Remarks Announcing the Nomination of Samuel Alito, Jr.
The Confirmation Fight
Alito had picked up the nickname “Scalito” on the Third Circuit for a judicial philosophy seen as aligned with Justice Antonin Scalia’s.12NPR. Bush Tries Again With ‘Scalito’ In roughly 15 years as an appellate judge, he had written about 361 opinions and voted in more than 4,800 cases.13GovInfo. Confirmation Hearings for Samuel A. Alito, Jr. Senators focused on his lone dissent in the Third Circuit’s Planned Parenthood v. Casey in 1991, where he favored upholding a spousal-notification requirement for abortion,14Philadelphia Inquirer. Alito, Abortion Rights, and Dobbs and a 1985 statement in which he had written that the Constitution does not provide for a right to an abortion.15GovInfo. Confirmation Hearings, S. Hrg. 109-277 Hearings before the Senate Judiciary Committee, chaired by Senator Arlen Specter, ran January 9–13, 2006.
Senators John Kerry and Ted Kennedy led a Democratic effort to filibuster, arguing that replacing a swing vote like O’Connor with Alito amounted to an “extraordinary circumstance.”16CNN. Senate Ends Alito Filibuster Several Republicans in the bipartisan “Gang of 14,” including Susan Collins, Lindsey Graham, and Mike DeWine, said they saw no basis for a filibuster.17NPR. Judging Alito: The Gang of 14 Factor On January 30, 2006, the Senate voted 72–25 to end debate, well past the 60-vote threshold, with 19 Democrats joining all 53 Republicans.
The next day, the Senate confirmed Alito 58–42. Four Democrats voted yes: Robert Byrd, Kent Conrad, Tim Johnson, and Ben Nelson. One Republican, Lincoln Chafee of Rhode Island, voted no.18U.S. Senate. Roll Call Vote, 109th Congress, 2nd Session Alito was sworn in the same day.19Oyez. Samuel A. Alito, Jr.
Why This Particular Replacement Mattered
O’Connor’s seat was not an ordinary vote. Between the 1994–1995 and 2003–2004 terms, she cast a majority vote in 135 of the 175 cases decided 5–4, more than any other justice over that stretch.20Justia. Sandra Day O’Connor She sat ideologically between the Court’s conservative and liberal blocs, and her vote frequently decided the outcome.
Her decisive votes shaped the law on several fronts:
- In Planned Parenthood v. Casey (1992), she co-authored the joint opinion reaffirming Roe v. Wade and setting the “undue burden” standard for abortion restrictions.20Justia. Sandra Day O’Connor
- In Grutter v. Bollinger (2003), she wrote the 5–4 majority upholding race as one factor in university admissions.21ACLU. Cases in Which Sandra Day O’Connor Cast the Decisive Vote
- In Hamdi v. Rumsfeld (2004), she wrote that a “state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”21ACLU. Cases in Which Sandra Day O’Connor Cast the Decisive Vote
- In McCreary County v. ACLU (2005), she concurred in a 5–4 ruling that Ten Commandments displays in two Kentucky courthouses were unconstitutional.
- In McConnell v. FEC (2003), she voted to uphold the McCain-Feingold campaign finance law.
Replacing her with a reliably conservative justice therefore had the potential to flip the outcome of an entire category of close cases.
What Changed After Alito Joined
With O’Connor gone, Justice Anthony Kennedy became the Court’s median vote, and Kennedy sat to O’Connor’s right on most issues. Professor Lee Epstein observed that “O’Connor at the end was quite a bit more liberal than Kennedy is now.” One analysis ranked Alito as the third-most conservative justice to serve on the Court since 1937, behind only Clarence Thomas and Chief Justice Rehnquist.22Martin-Quinn Scores / New York Times. The Polarized Court
The effects showed up early. In Hudson v. Michigan (2006), the Court held 5–4 that police did not have to suppress evidence obtained in violation of the “knock-and-announce” rule; O’Connor had signaled during oral argument that she would have gone the other way. In 2007, the Court upheld the federal Partial-Birth Abortion Ban Act 5–4, reversing a 2000 ruling that had struck down a nearly identical state law when O’Connor was in the majority. Legal scholar Erwin Chemerinsky tied the reversal directly to “Justice Alito having replaced Justice O’Connor.”22Martin-Quinn Scores / New York Times. The Polarized Court
Dobbs and the End of Casey
The sharpest reversal came in 2022. In Dobbs v. Jackson Women’s Health Organization, Alito wrote the majority opinion overturning both Roe v. Wade and Planned Parenthood v. Casey, the decision O’Connor had co-authored three decades earlier.23Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 Alito called Roe “egregiously wrong and deeply damaging” and said Casey‘s undue-burden test was “unworkable.” The 5–4 ruling returned authority to regulate abortion to state legislatures. The dissenters invoked O’Connor’s legacy, quoting the Casey plurality’s warning that the public “should never conclude that its constitutional protections hung by a thread” dependent on the arrival of new justices.24SCOTUSblog. Supreme Court Overturns Constitutional Right to Abortion
The End of Grutter
A year later, the Court dismantled another O’Connor cornerstone. In Students for Fair Admissions v. Harvard (2023), a 6–3 majority held that race-conscious admissions at Harvard and the University of North Carolina violated the Equal Protection Clause, overturning the framework O’Connor had set in Grutter v. Bollinger.25SCOTUSblog. Supreme Court Strikes Down Affirmative Action Programs in College Admissions Alito joined Chief Justice Roberts’s majority opinion, which found the programs lacked a “logical end point” and that their diversity goals were too vague for meaningful judicial review.26Supreme Court of the United States. Students for Fair Admissions v. President and Fellows of Harvard College Justice Sotomayor wrote in dissent that the majority had “rolled back decades of precedent and momentous progress.”
Between the two rulings, the outcome of O’Connor’s replacement is clearest in the pattern: on the issues where her vote had been decisive, the Court she left behind has moved in the other direction.