Oct. 9 (Bloomberg) -- On first read, remarks from Sandra Day O’Connor last week look like gross understatement.

Asked whether it concerns her when the U.S. Supreme Court rules differently than she would have, the retired justice said this:

“What would you feel? I’d be a little bit disappointed.”

Personally, I’m a lot more than a little disappointed at what has happened to the court since she left. And, unlike her, I have seen none of my life’s work destroyed.

“If you think you’ve been helpful, and then it’s dismantled, you think, ‘Oh, dear,’” O’Connor said.

Oh, dear?

Since she retired, the court abandoned her bedrock principle that to be constitutional, abortion restrictions must contain exceptions to protect the woman’s health.

To say it would be a “little bit disappointing” to a woman whose health depended on ending her pregnancy surely gives scant expression to the patient’s predicament.

Likewise, the current court rips apart precedent she helped create on race and campaign finance. “Oh, dear” is the best she can do?

I doubt that is what black firefighters said when the court in June trashed precedent and blessed a promotion test with racially skewed results.

Justice Stephen Breyer used stronger language when in 2007 the post-O’Connor court gave up her principle that schools should strive for a racial mix.

“It’s not often in law that so few have undone so much so quickly,” Breyer said as he read his dissent aloud in an obvious reference to his two newest colleagues, Chief Justice John Roberts and O’Connor’s successor, Samuel Alito.

‘Not Always Positive’

Oh, well.

“Life goes on,” O’Connor told her audience. “It’s not always positive.”

However puny O’Connor’s criticism sounds, by the standards of high court etiquette it astonishes.

Justices rarely, if ever, publicly comment on the substance of the court’s work after they leave. And to say the new guys are dismantling her work is a powerful condemnation, even if she rounded off the edges.

No replacement since ultra-conservative Clarence Thomas succeeded ultra-liberal Thurgood Marshall in 1991 has brought as seismic a shift in the court’s decisions, says Walter Dellinger. He frequently argues before the high court and did so regularly when he worked in the Clinton Justice Department.

Growing Bolder

It’s only going to get worse as Roberts and Alito grow bolder. Look for O’Connor’s church-state separation viewpoints to go next.

In a pair of cases in 2005, she voted that it was unconstitutional for local governments to put Ten Commandments displays on public property. Both cases were decided 5-4. Her viewpoint prevailed in one but not the other.

This week her replacement signaled a quite different view during arguments over a man-size cross on federal land commemorating the war dead.

Congress tried to get around a court order to remove the Christian symbol by offering the land to the Veterans of Foreign Wars, which would, no doubt, keep the cross.

Alito called that sleight of hand a “sensible” approach.

O’Connor seemed to predict a thinning of the church-state wall last weekend when she stressed the importance of appointing justices with diverse backgrounds.

One Faith

“I don’t think they should all be of one faith, and I don’t think they should all be from one state,” she said. Of the nine current justices, six are Catholic.

The comment looks prescient in light of Justice Antonin Scalia’s remarks during the argument on the memorial cross. He asserted a cross is fine on government land because it is the “most common” way to honor the dead. He seemed unaware that memorializing Jewish and other non-Christian soldiers with the essential Christian religious symbol would offend.

Frankly, even as I agreed with her, I found myself ticked off at O’Connor’s remarks, delivered at a College of William and Mary gathering last weekend in Williamsburg, Virginia.

In 2000 she was heard at a cocktail party saying she wanted to retire but not if a Democrat were elected president, the Wall Street Journal reported.

Choosing a President

Then she ensured the presidency would go to George W. Bush as the high court voted 5-4 to cut off ballot counting in Florida. She later became deeply disappointed with his administration, according to Jeffrey Toobin, author of the excellent book about the Supreme Court, “The Nine: Inside the Secret World of the Supreme Court.”

The extremism of Bush’s first attorney general, John Ashcroft, the conduct of the war on terror and Bush’s efforts to expand presidential power turned the Republican justice into one of the court’s more reliable votes against administration policies, says Toobin, a writer for the New Yorker magazine and a CNN legal analyst.

Nonetheless, when O’Connor announced her retirement in 2005, Bush was still in the White House. What did she think would happen given that Bush had declared his admiration for the court’s far right wing?

But her husband’s Alzheimer’s disease was worsening and she wanted to leave the bench to care for him, according to multiple reports.

The tragic personal irony is that between her retirement announcement in July 2005 and the seating of Alito in January 2006, her husband’s condition deteriorated so much that she couldn’t take care of him, anyway. He moved into an Alzheimer’s ward in Arizona.

Caring for Husband

No, she couldn’t have fully foreseen the course of her husband’s disease. It would be heartless to criticize her for abandoning public service to tend to her husband of more than half a century.

Still, from what she already knew of the Bush administration, she could have foreseen the chopping back of the centrist positions her replacement would bring and Bush’s other appointee, Roberts, would lead.

She’s in no position to now complain.

But I am.

(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

Last Updated: October 8, 2009 21:00 EDT