Historic justice - Rebecca Lowe

After graduating in 1952, Sandra Day O’Connor couldn’t find a law firm willing to give her a job. Nearly 30 years later, she became the first woman appointed to the US Supreme Court - a historic milestone for women’s rights. IBA Global Insight speaks to the former Supreme Court Justice who was at the centre of the controversial election of George W. Bush.

Sandra Day O’Connor, sitting serenely on a pristine cream sofa in her Savoy suite overlooking London’s River Thames, 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.’

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 justice appointed to the US Supreme Court.

O’Connor’s ascention to the top tier of the US judiciary came almost exactly 30 years ago, on 7 July 1981, by which time O’Connor had already served as an assistant attorney general, a state senator and an appeals judge for Arizona. Not a bad résumé, considering the only job she was offered following graduation from Stanford Law School was as a legal secretary. At the time, Tupperware parties and I Love Lucy – a sitcom featuring a stereotypically feeble woman, reliant on her husband – were the epitome of female entertainment.

Back at the ranch

 

O’Connor’s unusual upbringing on an isolated ranch on the border of Arizona and New Mexico clearly played a key role in her later life and career. Here she learnt how to ‘get on and work hard’, adopting those invaluable all-American traits of mettle, drive and self-sufficiency. ‘You never knew from day to day what you’d have to do. In a place like that you have to fix everything to make it work. If we had to build a fence, we built it. If you had to repair your car, you repaired it. There was no one to call.’

The oldest child of three, O’Connor took on much of the responsibility for running the ranch, planning one day to take it over from her parents, just as her father had taken it over from his. Yet unlike her father, whose aspirations to study at Stanford University fell by the wayside, O’Connor left home to live with her grandmother and attend school in El Paso – and, eventually, earned the Stanford place her father had coveted.

 


You’re not going to decide some case based on your own fundamental values, which are different from everyone else’s. That’s not going to happen
Justice Sandra Day O’Connor


 

It was here, during her undergraduate studies, that O’Connor met the ‘inspirational’ professor Harry Rathbun, who convinced her to stay on and take a graduate law degree. It is also here that she first encountered William Rehnquist, who went on to become Supreme Court chief justice in 1986. She and ‘Bill’ quickly became friends, then more than friends, as they bonded over regular games of bridge and charades at O’Connor’s house: a co-op established by the widow of the former head of the education department for the small handful of graduate women who had nowhere else to live.

In 1952, O’Connor graduated near the top of her class, got married – not to Bill, but John Jay, a colleague on the Stanford Law Review – and excitedly entered the outside world. But the world wasn’t ready for an ambitious, intelligent woman who could hold her own in conversation and shoot a jackrabbit at 50 yards. ‘No one gave me a job,’ she says. ‘It was very frustrating because I had done very well in both undergraduate and law school and my male classmates weren’t having any problems. No one would even speak to me.’

Exhibiting the persistence and initiative for which she would later become renowned, O’Connor sought out a county attorney in San Mateo, California, who she heard had once had a woman on his staff, and agreed to work for nothing until he could pay her a salary. Four months later she was made a full employee, only leaving, reluctantly, after her husband was drafted to the Judge Advocate General’s Corps in Frankfurt, Germany, during the Korean War.

 

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From law to legislature

 

When the couple returned home to Arizona in 1957, O’Connor again struggled to find work, and again used her tenacity to get herself out of trouble by convincing another man to open a law office with her. The two primarily took on cases for people with limited funds and evidently earned a good reputation doing so, as O’Connor was soon elected a precinct committeeman by the Republican Party, and subsequently appointed to a vacancy in the Arizona State Senate. Here she was re-elected twice, and in 1973, to her ‘great shock’, she was made majority leader. Her surprise was perhaps understandable: it was the first time a woman in the US had ever held a legislative leadership position.

For 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), this tenure in the US legislature provided the justice with invaluable training for her elevation to the Supreme Court. ‘She had a great ability to make people feel comfortable around her, to relate to people, and she always showed great hospitality for the people who came from other countries to visit the US,’ he says. ‘I think a lot of this came from her political senses.’

Mark Ellis, executive director of the IBA, who also worked with O’Connor at CEELI, has similar sentiments. ‘She had an incredible ability to connect with people, which she used throughout her political and judicial career. You could tell people had this tremendous admiration and respect for her.’

 


It was one of the worst judgments the Court has ever made. The Court itself announced that it cannot be used as precedent in other cases, which is almost a concession they jumped off the rails.

Sandy D’Alemberte, on the Bush v Gore decision in 2000

 

O’Connor eventually returned to the law in 1975 as an elected county judge, and in 1979 was appointed to the Arizona Court of Appeals. Then, two years later, she suffered her next ‘great shock’ – when President Ronald Reagan announced he was nominating her to the US Supreme Court, following a campaign pledge to help secure the female vote. ‘I had never worked at court, I had never been a law clerk there, I had never tried a case at court,’ says O’Connor. ‘It was far removed from our life in Arizona and I was not trying to move to Washington DC. I was not sure if I went to the Supreme Court that it would be a comfortable choice for me.’
But with support from her husband (‘come on, you’ll be fine’), O’Connor accepted the post, and consequently carved out her own unique foothold in the history of her country. Elected to the Court by a sweeping Senate majority of 99-0 (the missing senator, Max Baucus of Montana, sent her a copy of Norman Maclean’s A River Runs Through It as an apology for his absence), she was clearly a popular choice – even if it was due in large part to Reagan’s popularity at the time.
The process, however, was far from painless. ‘I was on national television every minute of every day,’ she recalls. ‘It was very stressful. I think I’d still be there except the wife of the committee chairman decided to have a big tea and invited everybody who was anybody in Washington to go.’

 

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'Open and practical'

 

Accompanying O’Connor on the Bench were Republican nominees Rehnquist, William Brennan, Warren Burger, Harry Blackmun, Lewis Powell and John Paul Stevens, and Democratic nominees Thurgood Marshall and Byron White. Powell was O’Connor’s favourite, a ‘wonderful man’ willing to do ‘anything’ she needed, whereas 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.

Brennan, Blackmun, Powell and Marshall were gone within the decade, replaced by Republican nominees Antonin Scalia, Anthony Kennedy, David Souter and Clarence Thomas, leaving White the sole ‘Democratic’ voice before President Bill Clinton’s appointments of Ruth Bader Ginsberg and Stephen Breyer in 1993 and 1994 respectively. Liberals were crying out for moderation, and in O’Connor, it seems, they got what they were asking for.

‘She didn’t seem to have an overarching ideology,’ says Joel Grossman, professor of political science at Johns Hopkins University and expert in US constitutional law. ‘She was more conservative than not, but pragmatic really describes her. She tended to look at each case as a problem to be solved.’

‘She was never doctrinaire,’ adds D’Alemberte. ‘She was the kind of conservative even we liberals could admire. She was always open and practical, and analysed things from some understanding of how things play out among people.’

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Playing politics

 

Yet O’Connor’s reputation as a moderate 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.

Indeed, perhaps the most contentious Supreme Court decision of all time was that of Bush v Gore in 2000, in which O’Connor played a seminal role. Voting with the 5-4 majority, O’Connor ruled that the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the 14th Amendment and, crucially, that no alternative method could be established within the time limits set by the state. The decision gave Bush the electoral votes he needed to win the state and, consequently, the presidency.

The decision was especially contentious for O’Connor, whose husband reportedly announced to three witnesses at an election night party that she wished to retire under a Republican president. Critics leapt on this as evidence of her political partisanship and O’Connor remains prickly about the issue now. ‘Look, you have volunteers working in the polls,’ she says, showing her first sign of restlessness since the interview began. ‘They have to count them and they get a ballot where the chad isn’t punched out. Are you going 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. You will always have ill-informed comments.’

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 D’Alemberte. ‘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. I can’t explain why she joined that decision.’

For those outside the US, the Supreme Court’s essentially partisan nature is sometimes difficult to comprehend. The idea of a committed Republican ruling on a highly politicised issue such as the election of a president seems questionable at best, unethical at worst. Yet it is a system that has endured for 222 years and looks unlikely to change in the near future. O’Connor, certainly, believes there is no need for a new one. ‘I think the system’s been remarkably effective: do you have a better one to propose?’ she asks pointedly. I confess that I don’t, but ask if she might. ‘No, I wouldn’t think you would. It’s worked pretty well.’

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Moderation in excess

 

It is perhaps testament to O’Connor’s popularity and pragmatism that the 2000 presidential 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 Grutter v Bollinger, which upheld affirmative action, and Webster v Reproductive Health Services, in which O’Connor refused, to Scalia’s rage, to overturn Roe v Wade. She was also the deciding vote in several significant gender equality cases, including Price Waterhouse v Hopkins and Jackson v Birmingham Board of Education (see box).

O’Connor’s opinion on abortion is perhaps indicative of her lack of judicial activism: she admits she finds abortion ‘repugnant’, yet has felt unable, legally, to undermine it. ‘You’re not going to decide some case based on your own fundamental values, which are different from everyone else’s,’ she says. ‘That’s not going to happen.’

 


She didn’t seem to have an overarching ideology... She was more conservative than not, but pragmatic really describes her. She tended to look at each case as a problem to be solved.
Joel Grossman
Johns Hopkins University

 

Interestingly, considering her legacy as a champion of women’s rights, O’Connor’s dismissal of value-judgments extends to her view of gender roles. Her appointment, she feels, was positive in the inspiration it provided for other women to escape a world of pinafores and petticoats; yet she does not feel that she, as a woman, brought anything fundamentally different to the Court and even resents the label ‘feminist’. ‘At the end of the day, you have to resolve something on legal principles and you’re not going to do something different just because you’re a man or a woman.’

Since stepping down in 2006, O’Connor’s absence on the Court has been mourned by many, who are discomforted by its ideological shift to the right. The retired justice herself at first refused to be drawn on the subject, but has since become more outspoken. ‘What would you feel?’ she said at a May 2009 panel discussion at the College of William and Mary, Virginia, where she is Chancellor, when asked how she felt about the Court’s retreat on some of her judgments on abortion rights and campaign finance. ‘I’d be a little bit disappointed. If you think you’ve been helpful and then it’s dismantled, you think: “Oh dear.” But life goes on. It’s not always positive.’

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Enduring legacy

 

Life does, indeed, go on. Since leaving the Court in 2006 to care for her husband, who suffered from Alzheimer’s for many years and died in 2009, O’Connor has hardly been your conventional octogenarian grandmother. Alongside raising awareness for Alzheimer’s research, she has led a campaign against the election of judges (‘I can’t imagine why we do it’) and denounced Republican attacks on judicial independence after a series of public criticisms of court decisions (‘It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings’).

After despairing that only a third of young people could name the three branches of government, O’Connor also set up an interactive website, www.ourcourts.org to be used in schools as a civic educational tool, which has since proved a great success.

But despite all these achievements, will history remember the ranch-girl-made-good as anything other than a timely symbol of female emancipation? For many, the answer is yes; her flexible approach, they say, had greater impact on legal precedent than that of the more intransigent ideologues on the Supreme Court. Others, however, question whether she has quite made the cut. ‘The great justices are the ones who write the opinions that we teach in constitutional law, and, other than a few cases, hers were not quite at that level,’ says Grossman. ‘She left her mark, but it’s not a mark that will be remembered in 200 years.’

History, it is true, often has trouble remembering moderation, subtlety and restraint when faced with the more virile alternatives of passion, ambition and energetic zeal. Yet it is clear that O’Connor had all these things, lacking ideological ardour, but zealous in her pursuit of social justice and equality. Whether she herself wishes, or expects, to be remembered by posterity for her good works, she, with characteristic modesty, declines to say. But, she is clear on what she would like on her tombstone. ‘It was what I told Congress when they were interviewing me,’ she says. ‘“Here lies a good judge.”’

 

Significant Supreme Court decisions

Mississippi University for Women v Hogan (1982): O’Connor rules in favour of a male applicant seeking admission to the Mississippi University for Women nursing school.  

Webster v Reproductive Health Services (1989): O’Connor votes with the majority to uphold a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing abortions, but refuses to overturn Roe v Wade.

Price Waterhouse v Hopkins (1989): O’Connor holds with the majority that Price Waterhouse failed to prove by a preponderance of the evidence that its decision not to promote a female employee would have been the same if sex discrimination had not occurred.

Missouri v Jenkins (1995): O’Connor votes with the majority in a 5-4 ruling to overturn a district court ruling that required the state of Missouri to correct racial inequality in schools by funding salary increases and remedial education programmes.

Davis v Monroe County Board of Education (1999): O’Connor writes for the 5-4 majority that a school can be held responsible under Title IX of the Education Amendments of 1972 for ‘student-on-student’ sexual harassment.

Boy Scouts of America v Dale (2000): O’Connor joins the majority in a 5-4 decision holding that New Jersey violated the Boy Scouts’ freedom of association by prohibiting it from discriminating against its troop leaders on the basis of sexual orientation.

Bush v Gore (2000): O’Connor provides the deciding vote in a ruling that stops the Florida election re-count and effectively gives the presidency to George W Bush.

McConnell v FEC (2003): O’Connell provides the deciding vote in a judgment that upholds the constitutionality of most of the McCain-Feingold campaign financing bill regulating ‘soft money’ contributions.

Grutter v Bollinger (2003): O’Connor authors the 5-4 majority ruling, which upholds the affirmative action admissions policy of the University of Michigan Law School.

Lawrence v Texas (2003): O’Connor writes a concurring opinion stating that state laws prohibiting homosexual but not heterosexual sodomy violate the Equal Protection Clause of the 14th Amendment.

Jackson v Board of Education (2005): O’Connor writes for the 5-4 majority that retaliation against individuals because they complain of sex discrimination is intentional conduct that violates the terms of Title IX of the Education Amendments of 1972.

 

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Rebecca Lowe is Senior Reporter at the IBA and can be contacted at rebecca.lowe@int-bar.org.

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