The First and Last of Her Kind

It was reassuring to find Evan Thomas’s biography of Supreme Court Justice Sandra Day O’Connor on the New York Times best-seller list this spring, however briefly. It was evidence that the country has not forgotten Justice O’Connor, now thirteen years into retirement and living with dementia—the same disease that took her husband, whose illness prompted her premature departure from the Court, and from her position as the most powerful woman in America.

Her name isn’t heard often these days—certainly not at the Court, which she dominated for years from her seat at its ideological center, but where her distinctive brand of center-right pragmatism quickly lost its purchase after her retirement. Her replacement in January 2006 by the hard-right Justice Samuel Alito, nominated by President George W. Bush, has proved to be one of the most consequential seat swaps in modern Supreme Court history. During a panel discussion a decade ago, O’Connor observed with characteristic bluntness that her legacy at the Court was being “dismantled.” How did she feel about that, her interviewer asked. “What would you feel?” O’Connor countered. “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.”

Three women sit on the Supreme Court today, a fact that appears completely ordinary to a generation without any memory of the thunderclap that was President Ronald Reagan’s nomination of O’Connor in July 1981. But those of a certain age, particularly women, know where they were when they heard that the president was naming a woman to the Supreme Court. I well remember the breath-snatching—if journalistically unprofessional—thrill I felt on the first Monday of that October when, from my place in the press row as a reporter for The New York Times, I watched the first female justice assume her seat. Hers was the first Supreme Court confirmation hearing to be televised. According to Thomas, nine out of ten television sets in America were tuned to it, amounting to more than 100 million viewers.

Decades before Internet memes turned Ruth Bader Ginsburg into the Notorious RBG, O’Connor was the first Supreme Court justice as rock star. From the moment she took the bench she was a figure of history—well captured first on the eve of her retirement by Joan Biskupic in her biography Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (2005) and now, with historical perspective and access to an illuminating trove of private papers, by Evan Thomas, the author of several biographies who occasionally wrote about the Court during his years at Time.

Naming a woman to the Supreme Court had been one of Reagan’s campaign promises. When the opportunity arose unexpectedly with the retirement of the centrist justice Potter Stewart in the opening months of his presidency, Reagan kept his word, despite lobbying by young conservatives inside the administration for the appointment of Robert Bork. (Six years later, when he nominated Bork to succeed the retiring Lewis Powell, the Democrats had retaken the Senate and the administration’s power was waning; the nomination failed.) At that time there were so few women on the bench, in government, or in senior positions in law practice that finding any woman for the Supreme Court seat figured to be a challenge, let alone one who would permit Reagan to fulfill the Republican platform’s pledge in 1980 to fill the federal courts with judges who would “respect traditional family values and the sanctity of human life.”

O’Connor’s commitment to family values was beyond question: married to a successful Phoenix lawyer, she was the mother of three sons. Her 2002 childhood memoir, Lazy B: Growing Up on a Cattle Ranch in the American Southwest, would be worth reading even if she had not grown up to be a Supreme Court justice. Thomas draws on it to describe how formative were the values of self-reliance and attention to duty that her stern father, Harry Day, imparted to his oldest child as he initiated her into the rigors of life on a sprawling, isolated, and nearly barren ranch near Arizona’s border with Mexico.

A former president of the Junior League, she played golf and tennis at the Paradise Valley Country Club. There was not a whiff of the counterculture, or even of explicit feminism, about her. Her Republican credentials were unimpeachable. She was personally close to Arizona’s senior statesman, Barry Goldwater. A youthful fifty-one, she was serving as a judge on Arizona’s intermediate appeals court. Before that, she had been majority leader of the state Senate, the first woman in the country to hold such a position, and had been mentioned in Arizona Republican circles as a possible future governor.

Her views on abortion, however, were opaque—as they would remain throughout her career. Clearly she was no right-to-life crusader; in the state Senate, she had voted against a resolution asking Congress to support a human life amendment that would have had the effect of overturning Roe v. Wade. But she had also voted against the use of state funds to pay for abortions for poor women and in favor of permitting hospitals to refuse to provide abortions. Thomas refers to her position on abortion as a “balancing act,” a fair description of both her legislative career and her later years on the Supreme Court. In her initial encounters with abortion cases, she was a sharp critic of Roe but ultimately provided a crucial vote as part of the five-member majority that preserved the right to abortion in the 1992 decision Planned Parenthood v. Casey. The “undue burden” test that she proposed, which permits states to enact measures aimed at persuading women to carry a pregnancy to term but forbids states from obstructing the ultimate choice of an abortion, became and remains the law of the land—although how extreme a restriction has to be in order to be deemed an unconstitutional burden on women’s access to abortion remains a deeply contested question.

The endless abortion wars lay ahead, of course. Once Judge O’Connor’s name emerged on a preliminary list of acceptable women, the White House quickly satisfied itself that she was the one to choose. A young Justice Department lawyer named Kenneth Starr, sent to Phoenix to check up on the potential nominee, came back with a good report, having enjoyed a lunch of homemade salmon mousse at the O’Connor table. Although she was little known outside Arizona, O’Connor and her husband, John, were able to mobilize a network of well-placed acquaintances, including Senator Goldwater, Chief Justice Warren Burger, whom she had impressed at a recent judicial conference, and Associate Justice William Rehnquist, her former boyfriend at Stanford Law School, who became chief justice in 1986.

Among the fruits of Thomas’s research in the papers to which O’Connor gave him access are letters to “Dearest Sandy” from the future chief justice, who had left Stanford a semester early in January 1952 to begin a Supreme Court clerkship. “I know I can never be happy without you,” Rehnquist wrote that March in a letter proposing marriage. But by then she had met John O’Connor, a fellow editor of the law review (on which she was the only woman), and Sandra Day turned Rehnquist down.

The image of the lovesick young Bill Rehnquist will startle anyone who observed his subsequent career, seemingly so devoid of sentiment of any kind. Perhaps just as surprising is the fact that during the twenty-four years that Rehnquist and O’Connor served on the Court together, years during which she proved his ally in crucial votes to narrow criminal defendants’ rights and elevate the position of the states in the federal system, relations between the two were cool, nearly impersonal. When she first arrived at the Court, “O’Connor had been puzzled and a little hurt by Rehnquist’s aloofness.” She found her soul mates elsewhere in the building: first the courtly Lewis Powell, who took her under his wing during the years before his retirement in 1987, and later Stephen Breyer, with whom she worked across ideological lines within an increasingly fractious Court on such issues as protecting procedural rights for Guantánamo detainees and preserving affirmative action in higher education.

Thomas can’t explain the distance between O’Connor and Rehnquist; O’Connor herself didn’t understand it. Thomas interviewed O’Connor at the start of his project in February 2016, but by then she had already received an Alzheimer’s diagnosis (this was not publicly known until the fall of 2018), and “it was obvious that she could not be a significant source for the book.” In addition to opening her own papers to Thomas, O’Connor also gave him access to her husband’s journal. Chronicling his wife’s rise, John O’Connor clearly viewed himself as a witness to a history that became less and less his own; his legal career, so successful in Phoenix, stalled in the unfamiliar milieu of Washington, D.C. (Especially poignant are the journal entries from the early 2000s in which John observes his growing sense that his own mind and memory are not working as they should, which he tries to hide from his wife even as she hides from him her awareness of his decline—a dynamic instantly recognizable to anyone who has witnessed dementia’s toll on a family.) Sandra O’Connor authorized family members, friends, and former law clerks to talk to Thomas and his wife, Oscie, whom he credits as an “essential” partner on a “joint project.”

The result is a book about a life more than a book about a judge. Finding the right balance between the subject’s life and work is a challenge that confronts every judicial biographer; the temptation to tilt in favor of the work is strong, in part because most judges worth writing about have not led particularly interesting lives—or, if they have, once they go on the bench, the personal all but disappears from public view. Biographers deal with this problem in various ways. Byron White served on the Supreme Court for thirty-one years (1962–1993). In his biography The Man Who Once Was Whizzer White (1998), Dennis J. Hutchinson offers a rich account of White’s colorful life as a college and pro football star and civil rights enforcer in the Kennedy administration, and then selects a single Supreme Court term from each decade of White’s service for a close examination of his thoroughly monochromatic life as a justice.

Another challenge is that judicial opinions often don’t mean much out of context. “The competent, even brilliant, analysis of yesterday’s legal problems has little current interest, in part because a major task of reconstruction may be necessary to determine that it was brilliant,” the now retired federal appeals court judge Richard A. Posner wrote in his book on Justice Benjamin N. Cardozo, Cardozo: A Study in Reputation (1990). What endures, Posner observed, are the “sparkling, vivid, memorable” opinions that survive outside the setting in which they were written and come down to us essentially as literature.

I can’t think of a sparkling or vivid O’Connor opinion. In fact, the only O’Connor line I could quote off the top of my head is the one that Thomas labels accurately as “unusually memorable”: “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens,” from the post–September 11 decision Hamdi v. Rumsfeld (2004). Yaser Esam Hamdi, from a Saudi family but an American citizen by birth, had been captured on the battlefield in Afghanistan. He was being held indefinitely without charges in a Navy brig in Charleston, South Carolina. O’Connor’s controlling opinion for the Court rejected the Bush administration’s view that the judiciary owed total deference to whatever the executive branch decided to do with enemy combatants. That decision, along with another that O’Connor joined, spelled the end of the Bush administration’s strategy of sequestering enemy combatants in a figurative black hole, immune from scrutiny by the federal courts.

From the many cases in which O’Connor participated, Thomas wisely emphasizes those that illustrate either her influence on the Court or an important turning point in her tenure. In 1985, for example, she voted with the Court’s liberals in declaring unconstitutional an Alabama “moment of silence” law for the state’s public schools, a law that was an obvious effort by the state to blunt the force of the Supreme Court decisions of two decades earlier that barred organized prayer in public schools and that still infuriated conservative Christians. While a moment of silence was not necessarily a religious exercise or automatically unconstitutional, she wrote in her separate concurring opinion in Wallace v. Jaffree, the “conclusion is unavoidable” that Alabama’s purpose “is to endorse prayer in public schools” in violation of the Constitution’s Establishment Clause. Her opinion prompted a surprised and pleased Justice John Paul Stevens, the majority opinion’s author, to visit her in her chambers for the first time since she had joined the Court, to offer his compliments.

As she was working on the case, one of her law clerks, Kent Syverud, urged her to “assume good faith and proper motives of the legislature.” Syverud, who would go on to become a law school dean and university president, told Thomas: “She set me straight. ‘You may want to presume that,’ she said. ‘But some state legislators can be the most venal, self-important people you can imagine.’”

As Thomas points out, this was an example of how O’Connor’s real-world experience—throughout her tenure on the Court, she was the only member to have held elected office—informed her decision-making. And there was another lesson to draw from her vote in the moment-of-silence case. Her awareness that she was burning bridges did not deter her. When Chief Justice Burger announced his retirement a year later, O’Connor was prominently mentioned as a possible successor, but neither O’Connor nor her husband expected it to happen, and it didn’t (Reagan appointed Rehnquist instead). Her “goose was cooked” with her vote in the Alabama case, she told John, who recorded the remark in his journal.

The legal academy has tended to be dismissive of O’Connor, arguing that she had no overarching theory of constitutional interpretation, and that her instinct for compromise led her to write opinions that were too closely tied to the facts of the specific case under review, leaving unclear the doctrinal implications for the inevitable next case. For example, Eric J. Segall of Georgia State University College of Law wrote shortly after her retirement that O’Connor’s approach “failed to provide enough stability, predictability or transparency to differentiate legal rules from personal preferences.” But the Supreme Court is not, after all, a law school faculty workshop. O’Connor saw herself as a problem-solver. She “had no agenda per se,” Thomas observes. She was not drawn to movements of the right or left.

It’s tempting to view her as a late-twentieth-century everywoman who showed up as ideological lines were hardening and the search for absolutes, in politics and law, was fast becoming the order of the day. The rise of the Christian right had disturbed her back in Arizona politics, and she remained wary. Not for her the formulaic “originalism” of her sharp-tongued colleague Antonin Scalia, who joined the Court in 1986. The well-known charms of the Court’s leading liberal, William Brennan, eluded her from the start. “It will be years before I learn all the habits and customs of this unusual place,” she wrote in her journal in a rare display of insecurity toward the end of her first year on the Court.

O’Connor joined the Court three years after the Bakke decision had left the future of affirmative action poised on a knife’s edge, permitting consideration of race but barring the use of racial quotas. The affirmative action cases in which O’Connor played an important part could fill an entire book. Early in her time on the Court, her attitude toward affirmative action veered between skepticism and hostility. It was a “bedeviling question” for her, Thomas observes, “partly because she occupied an ever lonelier no-man’s-land between the conservatives, who wanted to end affirmative action, and the liberals, who wanted to preserve it.” His account culminates with the 2003 University of Michigan Law School case, Grutter v. Bollinger, in which O’Connor’s opinion for a 5–4 majority preserved affirmative action in higher education for what she suggested should be twenty-five years—although it would hardly be a surprise now if the expiration date were to come sooner.

O’Connor knew from the beginning that she would be in the spotlight of this high-profile case. “This is going to come down to me,” she told one of her clerks. Thomas suggests that she was looking for a compromise; in a companion case, challenging Michigan’s more rigid approach to affirmative action in its undergraduate college—“with a whopping 20 points (out of 100 needed to gain admission) assigned purely for race”—she voted to invalidate it. That the “establishment elite” had lined up in support of the law school’s more “holistic” plan, arguing that major institutions needed to “look like America,” may have turned the tide for O’Connor, “who often mixed with corporate executives,” Thomas notes. “She didn’t like affirmative action,” Thomas quotes a conservative law clerk reflecting “ruefully” years later, “though she was the one to save it.”

No account of Sandra Day O’Connor’s life can fail to grapple with Bush v. Gore, the case that decided the 2000 presidential election with an unsigned 5–4 opinion of which O’Connor was a coauthor. It’s been widely reported that when the television networks called the election for Al Gore, O’Connor declared “This is terrible,” and walked out of an election night party, leaving her husband to explain to the other guests that the couple wanted to move back to Arizona but that his wife didn’t want a Democratic president to pick her successor. That account, published contemporaneously in Newsweek and verified by Thomas, suggests that O’Connor cast her crucial vote for the worst possible reason. Did she? “What motivated Justice O’Connor during the days and nights she decided the most difficult and momentous case of her life?” Thomas asks. His answer is that while “she knew she would be splattered with mud,” she thought the Court was obliged to save the country from what she saw as looming chaos.

That rationale won’t satisfy those who have never forgiven O’Connor for her vote, especially given Thomas’s revelation that it was O’Connor who inserted “the most banal—and telling—phrase” into Justice Anthony Kennedy’s opinion draft, limiting the Court’s surprising invocation of the Equal Protection Clause to this one case, not to be relied on in any future election dispute: in O’Connor’s words, it would be “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” For a judicial system that lives by precedent, this was a bizarre restriction, turning the decision, as Thomas puts it, into “a one-time ticket to get out of a jam.”

Thomas’s description of O’Connor’s motivation is plausible; as he points out, “in fact, by voting for an outcome that secured Bush’s election, she was, she knew, robbing herself of the chance to retire, at least right away,” given how unseemly that would have looked. Public criticism of her vote stung anyway. “Everybody hates me,” she told a friend at a party that New Year’s Eve. In the succeeding years, she avoided events at the Bush White House. “She never wanted people to feel there was a tit-for-tat,” her son Brian told Thomas. In 2013, she told the Chicago Tribune that the decision might have been a mistake, musing that “maybe the Court should have said, ‘We’re not going to take it, goodbye.’”

I teach first-year law students, young women and men who have no memory of Sandra Day O’Connor as a justice or, indeed, of a Supreme Court on which polarization along political lines was not so painfully apparent. In the pages of this fine biography, we see O’Connor emerge as exceptional not only for being the first female Supreme Court justice, but for standing astride an ever-widening ideological gulf. She was attentive to facts rather than theories. She saw the Court not as apart from the project of democratic governance but as a partner in it. That the fruits of her effort haven’t outlasted her only goes to prove how necessary she was for the two decades the country was lucky enough to have her. When pressed to reflect on being the first woman on the Supreme Court, O’Connor often replied that “it’s good to be first, but you don’t want to be the last.” She wasn’t the last woman, of course. But she may have been, sadly, the last Supreme Court justice of her kind.