13/07/2011

First among equals - Sandra Day O'Connor

By Rebecca Lowe

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Sandra Day O’Connor, sitting serenely on a pristine cream sofa in her Savoy suite overlooking London’s Thames River, was just a child when she shot her first coyote. It was a tough job, she says, but somebody had to do it.

‘We kept a rifle in the truck wherever we went and if we saw a coyote, I’d shoot out of the window. You were bouncing along so it was hard to do, but we needed to kill them to stop them eating our small calves.’

Achievement

O’Connor has a steely twinkle in her eye as she speaks, and it is clear she enjoys recounting this tale of early grit and chutzpah. These qualities have, after all, defined the 81-year-old through much of her life and career, as she rose from unemployed law graduate to one of the most powerful women in American history, as the first female appointee to the US Supreme Court.

Sandra Day O'Connor

Sandra Day O'Connor

This unprecedented achievement came almost exactly 30 years ago, on 7 July 1981, by which time O’Connor had already served as assistant attorney general, an appeals judge and majority State Senate leader for Arizona.

Not a bad resumé. And all the more impressive considering the only job she was offered following graduation from Stanford Law School was as a legal secretary, at a time when Tupperware parties and ‘I Love Lucy’ – a sitcom featuring a stereotypically feeble woman, reliant on her husband – were the epitome of female entertainment.

Accompanying O’Connor on the bench were six Republican nominees, including later chief justice and former Stanford friend William Rehnquist, and two Democratic nominees. Lewis Powell was O’Connor’s favourite, a ‘wonderful man’ willing to do ‘anything’ she needed, whereas Byron White, a former football halfback, had such a powerful handshake that she was forced to grab his thumb with her fist as a pre-emptive measure to prevent serious injury.

Renowned for her even-handed approach to cases, O’Connor quickly developed a reputation as a pragmatic moderate. Yet this is not to underplay her essential conservatism. For the first few years, her voting record aligned heavily with Rehnquist, and between 1994 and 2004 she only joined the liberal wing of Stevens, Breyer, Ginsburg and Souter in just over a quarter of all controversial 5-4 decisions.

Bush v Gore

Sandra Day O'Connor interview

Sandra Day O'Connor

Indeed, perhaps the most contentious Supreme Court decision of all time was that of Bush v Gore in 2000, in which O’Connor voted with the conservative 5-4 majority to stop the Florida election recount, which it judged unconstitutional.

The decision effectively handed George W Bush the presidency, and caused an outcry among those who felt the Court had put politics before prudence. The issue was especially controversial for O’Connor, whose husband reportedly announced at an election night party that she wished to retire under a Republican president.

O’Connor remains prickly about the issue now. ‘Look, you have volunteers working in the polls. They have to count them and they get a ballot where the chad isn’t punched out. Are you doing to have the same rule or just let them do anything they want? Come on. It’s a federal election and you need a federal policy and you need to be able to inform the volunteers who are counting the ballots. And Florida didn’t do that.’

So what about the comments blaming her decision on her plans for retirement? ‘For heaven’s sake, I don’t care.’ And did the comments have any weight? ‘They were ill informed.’

 


  ‘Renowned for her even-handed approach to cases, O’Connor quickly developed a reputation as a pragmatic moderate.'
 


 

Yet despite her protestations, even O’Connor’s staunchest supporters have difficulty understanding the decision. ‘It was once of the worst judgments the Court has ever made,’ says Sandy D’Alemberte, former president of the American Bar Association, who knew O’Connor through her service as a board member of the Central European and Eurasian Law Initiative (CEELI).

‘It is extraordinary when you read that opinion. The Court itself announced that it cannot be used as precedent in other cases, which is almost a concession they have jumped off the rails.’

Pragmatism

It is perhaps testament to O’Connor’s popularity that the 2000 election has not marred her legacy among more liberal-minded folk as some at first believed it would. A number of other decisions seem to have mitigated the damage, including Price Waterhouse v Hopkins, which set precedents for sexual harassment in the workplace; Grutter v Bollinger, which upheld affirmative action; and Webster v Reproductive Services, in which O’Connor refused to overturn Roe v Wade.

So will history remember the ranch-girl-made-good for her mark on the Supreme Court or simply as a timely symbol of female emancipation? The jury is out for the time being, it seems, with some arguing that her pragmatism made her vote more valuable than most and others that it undermined her ability to set significant legal precedents.

Yet whatever history may say, O’Connor herself is clear on what she would like carved on her tombstone.

‘It was what I told Congress when they were interviewing me,’ she says. ‘"Here lies a good judge."’

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