Who's Sorry Now - NYTimes.com Back when Sandra Day O'Connor was still on the Supreme Court, busy saving affirmative action and the right to abortion, liberals who wanted a reason to forgive her vote in Bush v. Gore often asked me - begged me - to assure them that Justice O'Connor was sorry. No, she's not, I would reply, anticipating the heartbroken expressions my words always evoked. It seemed to me that this was a woman who looked forward, not back, and who never wasted energy on regret. So now it turns out that the retired justice, just past her 83rd birthday, does have second thoughts about Bush v. Gore and, more to the point, is willing to express them. She told the editorial board of The Chicago Tribune last week that she thinks the court made a mistake by intervening in the disputed Florida election in the first place. "Maybe the court should have said, "We're not going to take it, goodbye," " she said, as quoted by The Tribune. While Florida's election officials had "kind of messed it up," she said, "probably the Supreme Court added to the problem at the end of the day." It's so unusual for a Supreme Court justice to express after-the-fact doubts - let alone Sandra Day O'Connor, let alone one of the highest-profile decisions of recent years - that it's worth thinking about what she said and putting her words in context. People who obviously know Sandra O'Connor better than I do say that her comments reflect a view she came to some time ago. "This is more of a piece than not," was the reaction of Joan Biskupic, whose insightful book, "Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice," appeared shortly after the justice's retirement in 2005. Justice O'Connor "has long been subtly distancing herself from Bush v. Gore," her biographer told me, adding: "She plainly does not want Bush v. Gore to define her legacy." Certainly it's her legacy that Justice O'Connor cares about and that she sees imperiled by a Supreme Court that the Bush administration pushed rightward by naming Samuel A. Alito Jr. to succeed her. Justice Alito has given Chief Justice John G. Roberts Jr. the reliable fifth vote that Justice O'Connor would have withheld on some of the Roberts court's most notable early rulings. When she observed in 2009 that she felt "a little bit disappointed" to see some of her rulings "being dismantled," she declined to be more specific. There were not, in fact, very many actual dismantlings by that point, but the writing on the wall was plain to see. To offer the most obvious example: the court now stands on the brink of overruling Justice O'Connor's majority opinion in the 2003 Michigan affirmative action case, with the majority's explicit expectation that race-conscious admission policies in higher-education admissions would, out of necessity, endure as law and policy for another 25 years. Her comments last week on Bush v. Gore stopped short of actually repudiating the vote she cast once the court had agreed to hear the case. She seemed most sorry that she had to choose sides at all. In that respect, she was not Justice Lewis F. Powell Jr., who three years after his retirement flatly disavowed his decisive vote in Bowers v. Hardwick, the 1986 decision that dismissed as "at best, facetious" a claim to constitutional protection for gay sex between consenting adults. Justice Powell, who during his struggle with that case had told a startled (and closeted) law clerk that "I don't believe I have ever met a homosexual," told an audience of New York University law students in 1990 that he had concluded that "the dissent had the better of the arguments" in the 5-to-4 decision - a decision that endured for 17 years until the court overruled it in Lawrence v. Texas. Supreme Court justices hate to contradict themselves. Of the five who voted to overturn Bowers v. Hardwick, four had not been on the court in 1986 and the fifth, Justice John Paul Stevens, was a dissenter in Bowers. Justice O'Connor, by contrast, had voted with the Bowers majority. She joined the judgment in Lawrence that the Texas sodomy law was unconstitutional, but declined to join Justice Anthony M. Kennedy's broad due-process ruling or to agree that Bowers should be overruled. She offered instead a narrower, and strained, rationale for striking down the Texas law based on the Equal Protection Clause; unlike the Georgia law at issue in Bowers, which made sodomy a crime for everyone, the Texas law made sodomy a crime only for people of the same sex. The law thus had the effect of "branding one class of persons as criminal solely based on the state's moral disapproval of that class," Justice O'Connor explained in her separate opinion. I don't mean to be unfair to Justice O'Connor. It mattered that she provided a sixth vote to overturn the Texas statute in Lawrence, and her regrets about Bush v. Gore, however nuanced, matter too. It's possible to see her as a kind of Everywoman, whose fitful ideological journey during more than three decades in the national spotlight mirrors the country's journey during that period as well - at least the journey of those once-comfortably centrist Republicans who have watched with dismay as their party abandoned them (Justice David H. Souter was another one), or those personally sheltered from having to give much thought to sexual identity, or crisis pregnancy, or race, but who after grappling with those issues have found themselves arriving at unexpected destinations. Justice O'Connor once actually did declare that she had voted the wrong way. The case was Republican Party of Minnesota v. White, a 2002 decision granting to candidates in judicial elections a First Amendment right to take positions on questions of public policy. Many state codes of judicial ethics barred such behavior under what were known as "announce" clauses. Justice O'Connor provided a fifth vote to strike down Minnesota's announce clause. Shortly after her retirement, she said she had been wrong and that the decision had contributed to the politicization of judicial elections. Similarly, Justice John Paul Stevens has expressed regret since his retirement about his vote with the majority in a 5-to-4 reapportionment decision in 1989. That case, Karcher v. Daggett, interpreted the one-person, one-vote rule as requiring districts to be drawn with precise numerical equality, a requirement Justice Stevens now regards as having opened the door to political mischief in redistricting. In both the judicial speech case and the redistricting case, the justices based their second thoughts on their perception of adverse developments that the decisions had enabled. Those are the kind of second thoughts that many people hope to hear from any of the five incumbent justices who made up the majority three years ago in the Citizens United case. In my opinion, those hopes will remain unfulfilled. Perhaps the most famous instance of incumbent justices changing their mind on a high-profile issue occurred in the 1940s. The question was whether school children with religious objections to pledging allegiance to the flag could be required to do so, on pain of expulsion from school. Jehovah's Witnesses, for whom saluting the flag is unacceptable, challenged the requirement as a violation of the First Amendment right to free exercise of religion. In 1940, the court ruled in Minersville School District v. Gobitis that the First Amendment did not prevent public school districts from expelling the Jehovah's Witness children. The vote was 8 to 1, with only Chief Justice Harlan F. Stone dissenting. The reaction by a country caught up in wartime patriotic fervor appalled the justices. Taking the Supreme Court's decision as proof that Jehovah's Witnesses were not good citizens, mobs attacked and burned the Witnesses" places of worship. Members of the faith were fired from their jobs and some 2,000 Jehovah's Witness children were expelled from school. When another case reached the court after only three years, three justices who had been in the earlier majority changed their votes. With the addition of two new justices to the court, the vote to affirm the religious rights of the Jehovah's Witnesses was 6 to 3. The decision, West Virginia State Board of Education v. Barnette, with a majority opinion by the recently appointed Robert H. Jackson, remains a star in the First Amendment firmament. Two of the three justices who changed their minds, Hugo L. Black and William O. Douglas, explained themselves in a concurring opinion. "Neither our domestic tranquility in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation," the two wrote. The third justice to change his mind was Frank Murphy. It was in "freedom and the example of persuasion," Justice Murphy wrote, "not in force and compulsion, that the real unity of America lies." This episode, 70 years ago next month, provided a dramatic denouement to an unfortunate chapter in the court's history. But the parallel between that long-ago change of heart and the more recent ones is hardly exact. The justices who changed their minds on the flag salute actually did so in time to make a difference.