Books · Politics

Sandra Day O’Connor—First Woman
on the Supreme Court

For the first two decades of her tenure on the Supreme Court, O’Connor was a staunch ally of her friend and advocate Justice Rehnquist, and was eager to push back against the federal government’s interference in local matters as he was. In time, however, she often acted as the buffer between conservatives and liberals, occasionally leaning left of center. In her twenty-four years on the SCOTUS bench, O’Connor cast the decisive swing vote 330 times.

In her first month on the Court, O’Connor broke a tie by voting with the liberals in Hogan v. Mississippi. They upheld a lower-court decision allowing men to attend the women’s nursing school at the University of Mississippi. The decision was significant because it blocked the southern states from countering racial desegregation by establishing sex-segregated schools to keep African-American men away from white women.

Five years later, she voted in Bowers v. Hardwick to retain a law that criminalized homosexuality. Seven years after Bowers, her thinking had evolved., She voted to strike down an anti-sodomy law in Lawrence v. Texas. Perhaps having a gay clerk in 2001 taught her that treating gays and straights differently was unjust. Consequently, as O’Connor’s tenure on SCOTUS lengthened, the Justice became ever more sensitive to the needs of women, children, people of color and marginalized groups.

In 2001, Gail Atwater was pulled over, handcuffed, jailed (briefly) and fined for driving her two kids without seatbelts. Her three-year-old was traumatized seeing his mother in handcuffs, and Atwater sued the police for violating her constitutional rights. The Supreme Court struck down her case, Atwater v. Lago Vista. O’Connor dissented and liberals applauded. She warned that the conservative majority was effectively encouraging racial profiling, holding that Atwater’s treatment was no different from the harassment of young black men for petty traffic violations.

She personally did not believe in abortion, but she never allowed Justices Scalia and Rehnquist to overturn Roe v. Wade, as they and President Reagan were determined to do. Never an avowed feminist, O’Connor nonetheless worked to improve the lot of women. In a 1990 speech, O’Connor said, “For both men and women the first step to getting power is to become visible to others, and then to put on an impressive show. As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.” (Thomas, pg. 269)

In the 1980s, states persuaded by the religious right were passing legislation limiting access to abortion. O’Connor usually voted with the conservatives to approve new restrictions, with the caveat that they not place undue burden on the mother. She didn’t specify what “undue burden” would mean in practice, but in 1989 she voted for the first time against the conservatives in Hodgson v. Minnesota. The statute required teenage girls to obtain both parents’ permission to abort, which, O’Connor argued, placed an undue burden on the woman’s right to decide to terminate a pregnancy. She also voted against anti-abortion laws that made no exception for the mother’s health.

Was O’Connor a master of compromise, adept at orchestrating 5-4 decisions? Or was she a “nitpicker,” as Justice Kennedy once called her, because she found ways to narrow decisions without resolving the main issue at hand? Both conservatives and liberals have found fault in decisions that liberal Linda Hirshman called “mostly patchwork compromises that almost never set down any principles to guide future decision making.” (Linda Hirshman, Sisters in Law, Harper Collins, Kindle Edition, loc. 539) O’Connor’s nemesis, arch conservative Justice Antonin Scalia, said O’Connor was a “politician not a judge” because she “felt her way to crowd-pleasing outcomes.” (Thomas, pg. 237)

Thomas records these critics, but his admiration for O’Connor borders on hagiography. He recounts revealing anecdotes that demonstrate her charm, wit and generosity. For example, every Saturday she cooked Tex-Mex at her house for her clerks. She loved to cook and did it very well. In one year she cooked her way through every recipe in Julia Child’s cookbook. (“Oh for God’s sake, Sandra,” said a friend, “do you always have to overachieve?” — Thomas, pg. 62) She was also bossy, impatient with indecision and needed to be in control. We learn that O’Connor’s father gave her a car in her last year at Stanford. Taking a bucket of paint, she reserved herself a parking space in a campus lot by painting one in. (Thomas, pg. 62) She loved to entertain, to dance, to party and to travel with her husband. She loved the outdoors, fishing and spelunking, and excelled at skiing, tennis, and golf. She tended to be parsimonious and had no interest in designer labels, yet cared enough for her appearance that she had her eyes lifted, used Botox, dyed her hair and still used eyeliner at 85.

She had a sense of humor— when an attorney addressed the Court, saying, “I’d like to remind you gentlemen. . . ” O’Connor leaned over and asked him, “Would you like to remind me too?” (Thomas, pg. 268) She enjoyed raunchy jokes. (Thomas, pg. 305) She had indefatigable energy, a powerhouse who worked all day and into the night while taking care of her family. Thomas describes her long, difficult and loving journey with her husband as his Alzheimer’s progressed. Family comes first, she would tell her clerks.

First: Sandra Day O’Connor is extensively researched and documented. Copious notes, bibliography and an index are immensely helpful. Evan Thomas chooses representative cases and clearly explains the issues at stake. First is a delightful and entertaining read.

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