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Friday, December 01, 2023

Sandra Day O'Connor (1930-2023)

Here are some excerpts from my 2019 review of Evan Thomas's First: Sandra Day O'Connor and Joan Biskupic's The Chief: The Life and Turbulent Times of Chief Justice John Roberts in The New Rambler Review:

If John Roberts’s “fast track” to “the best job” took him almost ineluctably to the U.S. Supreme Court, while maintaining a cool demeanor that can blunt even the best attempt at biography, Sandra Day O’Connor followed a far more winding road, even an adventurous one, as detailed in Evan Thomas’s absorbing First: Sandra Day O’Connor. She did not go from law school to prestigious clerkships, and then to an insider’s position in the White House. In fact, she was unable even to get interviews with top California law firms, although she had graduated at the top of her class at Stanford. One Los Angeles firm did let her in the door, but only to offer her a secretarial position, explaining that “our clients won’t stand [for] being represented by a woman” (43).  

Before she was nominated by President Ronald Reagan in 1981, O’Connor had been an unsalaried assistant district attorney in California, a civilian lawyer in the U.S. Army’s Quartermaster Corps in Germany, and then a stay-at-home mom and a storefront lawyer in Phoenix. Her true professional ascent only began when, at age 39, she was appointed to a vacancy in the Arizona state senate. Within a few terms, she became the first woman majority leader in any U.S. legislature, followed by stints as a state trial court judge and appellate court justice. 

O’Connor’s childhood and youth demanded independence and resourcefulness, preparing her well for later detours and disappointments. She was born on her parents’ cattle ranch—the 160,000 acre Lazy B, in an arid corner of southeast Arizona—in a house that had neither electricity nor indoor plumbing. Because there were no schools within reasonable distance of the Lazy B, six-year old Sandra Day was sent to El Paso, where she lived with her maternal grandmother while attending a private elementary school. She returned to the ranch for summers, and then as an adolescent, where she rode horses and joined in calf branding (and castrating) under the stern, and sometimes unforgiving, supervision of her father. 

Always a precocious student, Sandra Day entered Stanford in 1946, at age 16, having skipped two grades. She was one of only a few women in her class. Graduating in only three years, she entered Stanford law school when she was 19 years old. 

In law school, Sandra Day was surrounded by WWII veterans, one of whom was William Rehnquist. For many years it was reported that the two law students had casually dated, and Rehnquist told his clerks only that they had “gone to the movies” once or twice (219). Thomas reveals that there was more to it. Their dating had been serious, with Rehnquist proclaiming his love during their third year at Stanford. “I know I can never be happy without you,” he told her. “To be specific, Sandy, will you marry me this summer” (42). 

Rehnquist’s was the third marriage proposal Sandra Day received while at Stanford. She accepted the fourth one, from John O’Conner, a fellow law review editor in the class behind her. They would be married for 57 years. 

Thomas is able to include such intimate details because Justice Connor and her family gave him unprecedented access to her personal and professional papers. In addition to her official papers, archived at the Library of Congress but closed to the public, Thomas also obtained a trove of letters and notes dating back to O’Connor’s college years. Both Sandra and John O’Connor kept diaries of her years on the court, and John also wrote an unpublished and never previously seen memoir. With encouragement from the family, Thomas was able to conduct on-the-record interviews with seven SCOTUS justices, 94 former clerks (of 108), and scores of O’Connor’s friends and relatives, including college and law school classmates, Arizona neighbors, and many participants in the O’Connors’ active social life. Even treating physicians—for Sandra’s breast cancer and John’s Alzheimer’s disease—sat for interviews. 

Unlike Roberts, O’Connor’s life story provides meaningful insights into the origins of her judicial views. Having experienced gender discrimination first-hand, and having learned how to function and succeed in a previously all-male world—cattle ranch, legislature, and bench—she was well situated to mediate conflicting views on the most troublesome issues before the Supreme Court. 

In 1992, after Clarence Thomas had replaced Thurgood Marshall on the Court, abortion rights seemed to be hanging by a thread. And when the Court heard argument in Planned Parenthood of Southeastern Pennsylvania v. Casey, a challenge to Pennsylvania’s restrictive abortion law, the writing seemed to be on the wall. As explained in First, Chief Justice Rehnquist initially “counted five votes to reverse Roe and assigned himself the Court’s opinion” (279). Before Rehnquist’s draft could circulate, however, Justices Kennedy, Souter, and O’Connor coalesced around a compromise. The result was a joint opinion upholding many of the statute’s restrictions while reaffirming “the essential holding” of Roe v. Wade. According to Evan Thomas, it was O’Connor who persuaded Kennedy to sign on by “appealing to his basic sense of decency and fairness.” It was also O’Connor who contributed the crucial “nuts-and-bolts” in the joint opinion, establishing the “undue burden” test that has survived, if barely, to this day (280). 

If Joan Biskupic is politely (and appropriately) skeptical of Roberts’s labored insistence that his background does not influence his judgments, Evan Thomas is quite certain that O’Connor’s life experience—as a woman and a mother—informed her decision to salvage Roe from outright reversal. In an interview, one of her former clerks observed that “the justice understood what was at stake for women...She had experienced childbirth. She understood the challenge of carrying a child to term [and] fully appreciated what women can face in these deeply personal decisions” (263). 

So it was in the affirmative action cases. O’Connor disliked “victimhood and identity politics,” but, as another former clerk explained, “she had a lot of experience of her own to know that the playing field was not always level” (347). Thus, in Grutter v. Bollinger she cast the deciding vote to uphold the affirmative action plan at the University of Michigan Law School, noting that its “holistic” approach to racial preference served to admit a “critical mass of underrepresented minority students” whose very presence would undermine “racial stereotypes” (350).  

Not every O’Connor compromise was liberal. In Bush v. Gore, she voted with the conservative majority to install George W. Bush in the White House, on the questionable rationale that continuing the Florida recount would violate the Equal Protection Clause. Thomas reveals that O’Connor persuaded Scalia to accept her theory, even though he privately ridiculed it as “a piece of shit” (332). O’Connor also contributed perhaps the most notorious passage in the unsigned opinion, making Bush the only beneficiary of its reasoning. The holding of the case, she wrote, was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities” (332). 

It is impossible to say whether Roberts or O’Connor will be remembered as the better or more influential justice, and not only because Roberts, after 14 years, is still in mid-career.


Posted by Steve Lubet on December 1, 2023 at 12:21 PM | Permalink


I'm sure all those people who suffered through the next eight years will be consoled by her belated regret and glad to hear she kept her chin up about it.


Posted by: kotodama | Dec 1, 2023 8:27:14 PM

She came within a few years to regret her vote in Bush v. Gore, and the Court having decided it at all. But she was the antithesis of self-flagellating -- she kept her chin up and her public remarks terse and responsible to the Court's reputation, and she moved forward with public service, so admirably.

Posted by: John Q. Barrett | Dec 1, 2023 6:06:52 PM

Looking back, O'Connor said, she isn't sure the high court should have taken the case.

"It took the case and decided it at a time when it was still a big election issue," O'Connor said during a talk Friday with the Tribune editorial board. "Maybe the court should have said, 'We're not going to take it, goodbye.'"


Big FWIW but anyway. Her support of iCivics also warrants a nod.

Posted by: Joe | Dec 1, 2023 12:31:43 PM

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