She was a path-breaker, a lawyer with a history of firsts, but one of Sandra Day O’Connor’s greatest achievements, as one federal judge put it, was to make the momentous seem commonplace. It seemed that just by living her life she accomplished great things.
O’Connor graduated from Stanford Law School near the top of her class in 1952, when women law students were rare. She didn’t get a single job offer as a lawyer, so she moved to Arizona and hung out a shingle. Balancing work and family, she eventually ran for state Senate and became the first female majority leader anywhere in the United States.
But when President Ronald Reagan called in 1981 to nominate her as the first female to serve on the Supreme Court, O’Connor was hesitant: She worried about the possibility that she would fail and considered what that might mean for other women.
“I was acutely aware of the negative consequences if I arrived here and did a poor job,” she told the Tribune in a 2003 interview.
But in her 24 years on the court, few would say O’Connor did a poor job. She shaped the law in critical areas of race, religion, abortion and states’ rights. She came to define the court’s center, and her views often determined the direction the court would take.
A person of influence
Justice Antonin Scalia’s opinions might be more quotable, and Chief Justice William Rehnquist might be the court’s titular head. But it was O’Connor to whom lawyers most often tailored their arguments, because, quite simply, the way she voted often made the difference.
In the end, her departure is momentous not because of her sex but because of her influence.
“It’s important to remember how historic she is, being the first woman on the court, but I don’t think that’s the major focus,” said Deborah Jones Merritt, a law professor at Ohio State University who clerked for O’Connor during her first year on the court.
“People are talking about her position as a centrist on the court, and in many ways, that is one of the greatest tributes to her,” Merritt said.
In her typical, no-nonsense Arizona cowgirl style, O’Connor announced her retirement by releasing the simple three-sentence letter to President Bush she had sent early Friday.
Even high-ranking officials in the White House had assumed any retirement announcement would come not from her, but from Rehnquist.
Still, there had been some signs. Her husband, John O’Connor, is in deteriorating health, and the couple had recently sold their Chevy Chase, Md., home for a smaller apartment in Washington. She had hired three law clerks for the upcoming year, instead of the typical four.
But in every other way, O’Connor appeared very much a justice who would return to her black leather seat in October. The three clerks? It was assumed she would take one from the supposedly retiring Rehnquist, her former Stanford Law School classmate.
But Friday morning, she told her fellow justices by letter that she would be stepping down.
Justice Ruth Bader Ginsburg, who joined the court in 1993 as the second female justice, said in a statement that women across the world “have been inspired by her example, encouraged by her words and deeds to be brave, to appreciate their own worth, to aspire, and to achieve.”
When O’Connor was offered only a job as a legal secretary after graduating third in her law school class, she and her attorney husband, John, moved to Arizona and eventually formed a small law firm. Then, with three small sons, she quit when her baby-sitter moved to California. That decision was difficult, she said in 2003, because she was “fearful I’d never get another job in the legal profession.”
Unpredictable opinions
O’Connor typically sided with more conservative justices. But her opinions were sometimes difficult to predict.
Her decisions in the area of abortion best prove that point. She was nominated by an administration that had hoped the court would overturn the landmark Roe vs. Wade decision, which said a woman had a constitutional right to an abortion. But in 1992, O’Connor voted instead to reaffirm Roe.
In that case, O’Connor joined with Justices Anthony Kennedy and David Souter to articulate a new legal standard that said states could impose restrictions on abortion. But those restrictions, the justices said, could not amount to an “undue burden” on a woman’s right to choose.
O’Connor also provided a key vote in high-profile 5-4 cases in the areas of affirmative action, government aid to religious institutions and states’ rights–as well Bush vs. Gore, the controversial 2000 decision that stopped vote recounts in Florida and handed the presidency to Bush.
Her decision in the landmark case involving the University of Michigan was the court’s most significant and wide-ranging affirmative action ruling in a generation. O’Connor said universities can consider an applicant’s race as a factor in attracting a diverse student body, but her opinion reiterated that strict quotas would violate the Constitution.
“Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized,” she wrote.
O’Connor said in the 2003 interview that the justices, in cases like the affirmative action dispute, realize that how they resolve abstract legal issues can significantly affect individuals.
“We often recognize that issues, the abstract issues with which we deal, do have real-life consequences and may matter deeply to people,” she said. “That’s why you try to do the best you can. But you can’t decide it on the basis of, `Oh, gosh, a lot of people are going to be affected.'”
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jgreenburg@tribune.com
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O’Connor’s writings
From her 1992 plurality opinion Planned Parenthood vs. Casey, which upheld a woman’s constitutional right to an abortion, but gave states more flexibility to impose limited restrictions:
“If indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in Roe, the state might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.”
From her 2003 majority opinion in Grutter vs. Bollinger, which ruled the nation’s public universities can take race partly into account in their admissions policies:
“This court has long recognized that `education is the very foundation of good citizenship.’ For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity.
“We take the law school at its word that it would `like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice [Lewis] Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
From her 2004 majority opinion in Hamdi vs. Rumsfeld, ruling a U.S. citizen seized on the Afghanistan battlefield can challenge his detention in U.S. courts:
“We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens. … [It] would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the executive opposes making available such a challenge.”
From her 2005 dissent in Kelo vs. New London, a ruling that gives local governments authority to seize people’s homes and businesses for private development:
“The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. … Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
