Mar. Feb 27th, 2024

“I didn’t know lawyers and judges. We were cattle ranchers. That wasn’t — we didn’t know people like that. So I didn’t know what I was getting into, and it never entered my mind that there wouldn’t be opportunities for women lawyers. It just never occurred to me. Should have.” Sandra Day O’Connor was the first woman justice on the Supreme Court. During her tenure on the high bench, she was the crucial swing vote, the decisive force in cases that shaped history — from states’ rights to sex discrimination, voting rights to religion, affirmative action to abortion. For nearly a quarter-century, the law was basically what Justice O’Connor thought it ought to be. The onetime housewife from suburban Phoenix came to be known as the most powerful woman in America. It all began one day in July 1981. O’Connor, who was just a mid-level state judge in Arizona at the time, was working in her chambers when she got a bolt from the blue, a telephone call from the White House. President Ronald Reagan wanted to appoint her to the Supreme Court. “Why do you think you were chosen?” “Well, when Ronald Reagan was running for president, he was eager to have some support from women and it was a little dicey for him. There was an abortion issue out there, so women were somewhat skeptical. And he said during the course of his campaign, if I get a chance to put a qualified woman on the Supreme Court, I would like to do that.” For nearly 200 years, the high court was a domain reserved for men. Even the mere suggestion from Reagan made front-page news. “My name surfaced on that list. I’m not sure how or why, except that there were not many Republican women judges. There weren’t many women judges anyway — federal or state. But I was a Republican, I had served in all three branches of Arizona’s government. And unbeknownst to me, they sent a couple of people to Arizona to make inquiry about me. They had a big paper trail to review and see if they thought they approved.” “Perhaps it didn’t hurt that Ronald Reagan was a cowboy at heart.” “I think that was what he most liked, was the fact that I’d grown up on the back of a horse.” Sandra Day was a trailblazer from the beginning. Born in 1930, she was raised on the Lazy B Ranch in a remote corner of Arizona. “We were 35 miles from the nearest town. An adobe house that was plastered and it had a big screen porch around it, where the cowboys slept. No indoor plumbing, no running water, no electricity. It was rather primitive.” “When you were a child, what did you want to be when you grew up?” “A cattle rancher. I liked it. It was wonderful. That was the only thing I knew anything about. I think I was the only student in my graduating class who went away out of state to college.” At Stanford University, the cowgirl met the person who would inspire her life’s ambition, a professor named Harry Rathbun. “He had a spiritual quality almost. He was the first person to really tell the students this is a huge, complicated world we’re living in.” TV Announcer: “Let us face without panic the reality of our times. The fact that atom bombs —” “It’s a dangerous world. We have to learn how to live together in peace in this world. And a single individual, even in this complex world of ours, can make a difference. Because of Prof. Harry Rathbun, I decided to apply to law school.” “Weren’t you told that there was no way for a woman to be a lawyer back then?” “I was not told that. In fact, it was true. And if I had known that, I perhaps wouldn’t have applied.” At Stanford Law School, O’Connor met two men who’d play a big role in the rest of her life: William Rehnquist, her future colleague on the Supreme Court — “I knew him well. He loved to play a card game, or charades or go to the movies. He was really so much fun.” — and John O’Connor, her future husband. “John was a year behind me. I was graduating that year and he had another year to go. One of us had to work and that was going to be me. And I placed calls to many of the firms, and they wouldn’t talk to me. I was female. They didn’t want to talk to me. I didn’t realize that I was going to have trouble even getting an interview. I had an undergraduate friend at Stanford whose father was a partner in a big California law firm. And he said, ‘Oh, Miss Day, you have a fine resume here.’ He said, ‘The problem is this firm has never hired a woman as a lawyer and I don’t see the time when we will. Our clients wouldn’t stand for it.’ And then he said, ‘Well, how well do you type?’ I heard that the district attorney in San Mateo County, Calif., had once had a woman lawyer on his staff, so I made an appointment to go see him. He was in the old San Mateo County Courthouse, which now is an historic building. It had a big, stained glass dome. It was fabulous. But he said, ‘The fact of the matter is, I don’t have any money to hire anybody right now.’ I said, ‘I can work for nothing until you get funding.’ And I said, ‘I know you don’t have an empty space, but I met your secretary and she’s very nice. And there’s enough room in her office to put another desk, if she’s willing to have me.’ That was the deal we struck. So it all turned out for the best, but it was sure hard to get that first job as a lawyer.” “You once wrote, ‘If society does not recognize the fact that only women can bear children, then ‘equal treatment’ ends up being unequal.’ After you moved back to Arizona, how did you manage to both practice law and raise three sons?” “It’s not easy. It was 1957. I was pregnant with my first child at the time I took the Arizona bar exam, and we had a little boy. None of the law firms in Phoenix had yet decided to hire women lawyers, so we opened our own little law office out in a suburb. And it wasn’t the kind of work usually handled at the U.S. Supreme Court. But I couldn’t go to work every day if I didn’t have adequate and reliable help at home, and I didn’t. So I had to give up my little neighborhood law firm and I stayed home for close to five years.” O’Connor’s law career stalled, but she became a rising star in local Republican politics. “The Republicans managed to elect the attorney general of Arizona and he hired me as an assistant attorney general. Well, the problem was I was the only woman and he didn’t know what to do with me. So he sent me out to the Arizona State Hospital for the mentally ill, and said you can have space out there for your office. I said, ‘What am I supposed to do?’ ‘Well, whatever they need.’ Maybe the most important thing I did there was to start legal aid clinic for the patients. They were losing their homes, their children, everything. They were locked up. The attorney general decided, gee, maybe we could use this woman back down at the headquarters. So, he brought me back. And then I had some very good clients, like the governor and the Legislature. I really enjoyed that work and I certainly got to know state government from the ground up.” When a state senator got elected to Congress in 1969, O’Connor was tapped to fill his seat. “It was great. You could decide what problems you wanted to work on and develop legislation to do something. I had enough of a voice that I could normally get those things enacted. My colleagues, to my shock, elected me as majority leader of the Arizona State Senate. That was the first time in the United States that a woman had ever held a legislative leadership post of any kind. Isn’t that amazing? It had never happened before.” State Senator O’Connor was a loyal Republican, except when it came to issues involving women, whether it was backing the Equal Rights Amendment or avoiding the anti-abortion battles taking hold across the country. After two years at the helm of the Legislature, O’Connor returned to the law, this time as a judge — first on a county court and later, a state Court of Appeals. She’d served on the bench only seven years when that fateful phone call arrived in 1981. “So today I’m pleased to announce the nomination of Judge Sandra Day O’Connor of Arizona Court of Appeals for confirmation as an associate justice of the United States Supreme Court.” The press and the public were quite taken by Reagan’s revolutionary nominee, but there was opposition from right-to-life conservatives. “Some 200 of them picketed the Senate building.” “We see it as a total repudiation of the views made public by President Reagan.” “They’re already pressuring U.S. senators to vote no on Judge O’Connor to try and block her nomination to the Supreme Court.” “Judge O’Connor, there has been much discussion about your views on the subject of abortion.” “My own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise. The subject of abortion —” Despite the opposition, the Senate voted 99 to 0 to confirm the nomination. “Do you have any trepidation?” “No, it should be very interesting.” When O’Connor arrived for her first day on the bench, the world was watching to see how a female would fare. “There was neither comment nor ceremony as Mrs. O’Connor took her seat for the opening argument.” “We’ll hear arguments first this morning in No. 1464, James G. Watt, Secretary of the Interior, against the Energy Action Education —” It took almost 40 minutes before she gathered the nerve to pose a question in oral arguments. “If the government complies with what Congress intended — in other words —” “Mr. Silard, may I —” “May I just finish your thought? The congressional —” But just when it seemed the first lady on the high court might wilt under the pressure, the cowgirl found her voice. “It isn’t clear, is it, whether even if California were to win here, that the secretary would be likely to use the bidding systems that California —” With her bold stature and piercing gaze, Justice O’Connor proved herself a force to be reckoned with — not only in oral arguments, but also in chambers. “The most electrifying moment of my first week on the court was that first time I sat in our conference room at the table to actually discuss and resolve cases that had been heard and argued. That was the moment of truth, the rest was grandstanding. That was the real thing.” Right away, the divide on the court endowed O’Connor with the power that defied her position. “We were seated, nine of us, around that table discussing the merits of the cases argued that week. And the discussion starts with the chief justice. And the chief explains how he thinks the case should be resolved and why, and then the next most senior, and on around the table, ending with the junior justice. That was me. The very first case that we discussed came to me 4 to 4. It wasn’t that I was seeking that role, but very often the court was divided in that fashion.” That made the first woman justice the key pivot point, the swing vote who single-handedly decided if the four conservative justices or the four liberals prevailed in a case. In time, it became clear Justice O’Connor valued balance and pragmatism over purity. From her experience in life and local government, she believed impacts mattered. And in case after case, she was willing to reconsider preconceptions and to ally with opposing factions on the court — even on abortion. Initially, she took the side of conservatives, backing laws limiting abortions and attacking Roe v. Wade. “Whether the state may reasonably regulate in the area of abortion in a manner designed to ensure an informed decision by a pregnant woman —” “Counsel, is the city relying on all four of the alleged state interests that you described in this instance?” “That’s correct, your honor.” “OK.” But O’Connor refused to join conservatives when they tried to overturn Roe v. Wade. Twice, she single-handedly had the chance to outlaw abortions and she refused. First, in 1989 — “— require women to have abortions after so many —” “I surely do not.” And again in 1992, with Planned Parenthood v. Casey, a landmark 5 to 4 decision that Justice O’Connor delivered for the court. “We conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” “Do you think the issues decided in Roe v. Wade are now settled a matter for the court?” “It’s always possible that the Supreme Court of the United States can conclude that in some earlier decision it made it’s — it ought to be reversed, that it’s no longer valid. The court certainly did that in a very dramatic way in the 1950s in Brown v. Board of Education, but it is not easily done or lightly done.” When it came to affirmative action, O’Connor began as a skeptic, but became a defender in 2003, with the polarizing case of Grutter v. Bollinger. “Petitioner Barbara Grutter is a white Michigan resident who was denied admission to the law school.” Justice O’Connor cast the decisive vote in the 5 to 4 decision that upheld affirmative action in university admissions. “Showing that such diversity promotes learning and better prepares students for an increasingly heterogeneous workforce, for responsible citizenship, and —” “You wrote, ‘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.’ Do you think this principle is in danger?” “I think it’s a very important principle. I hope it isn’t in danger. It shouldn’t be. We’re a nation comprised of people from many different countries, backgrounds, religions. When I went to law school, 1 percent of the law students were female — today it’s 50. We’ve had what amounts to a revolution in this country, and it’s been all to the good.” “Over the years, is it fair to say your opinions became more moderate? Did the court become more conservative? Are both things true?” “I don’t think either of them are true. The fact of the matter is the Supreme Court considers an amazing array of issues. Amazing. I just don’t think it’s accurate to say somebody has this great unified theory and that’s how everything has to be decided. It’s not that way.” When she retired from the court in 2006 to care for her husband, who had been diagnosed with Alzheimer’s disease, Justice O’Connor seemed to have no regrets, even about what was probably her most controversial decision: Bush v. Gore. “An election in turmoil, a presidency in the balance.” “A recount in the Sunshine State is now underway.” “Per the Secretary of State’s request to stop the recount on her term.” In December 2000, Justice O’Connor was part of the 5 to 4 majority that gave George Bush a victory in the disputed presidential election when the Supreme Court ordered four Florida counties to stop recounting votes. “Some of the ballots came out with one hanging chad, and some with two hanging chads, and some with three hanging chads. The counties didn’t have a uniform rule. They just let the vote counters do whatever they thought right. Well, that’s not equal protection. I mean voting matters, doesn’t it? It was a close election. And so we like to think that the ballots are going to be counted, according to some set rules so that it isn’t just the whim of whoever’s counting the ballot. The popular vote count went for Mr. Gore, the Electoral College went the other way. And I think that’s what really bothers people. The Supreme Court didn’t change that.” But O’Connor always remained willing to rethink her preconceptions. In 2013, she told the Chicago Tribune editorial board she had misgivings about the Bush v. Gore decision. She said it ‘stirred up the public’ and ‘gave the court a less than perfect reputation.’ “We were hearing more unfortunate remarks about judges than I remembered in my very long lifetime. Activist judges — godless, secular humanists trying to impose their will on the rest of us. It’s shocking to me because when the framers created our form of government, they created three branches of government. And the framers thought it was terribly important to have a judicial branch that had the capacity, ability and independence to enable them to impartially decide issues of law, even if it meant holding a law unconstitutional or an act of Congress unconstitutional. That was their vision.” “I’m going to ask you a question you were asked at your Senate confirmation, which is: How you would like to be remembered?” “Oh, I said the tombstone question. And I said I would like it to say, ‘Here lies a good judge,’ and I haven’t changed my mind.”

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