Sandra Day O'Connor Book Review
Title: Sandra Day O’Connor: How the First Woman on the Supreme Court
Became Its Most Influential Justice.
Author: Joan Biskupic
Publisher: Ecco, HarperCollins Publishers, 2005
Pages: 419
Cost: $26.95 (Hardcover)
Sandra Day O’Connor will soon step down from 24 years as Justice of the United States Supreme Court. Her status as the first female Justice in the history of the court is enough to guarantee her place in history, but that fact alone is an insufficient understanding of her significance. For many years Justice O’Connor has been the critical “swing vote,” the justice who occupied the powerful middle ground between conservative and liberal colleagues on a host of controversial national issues.
Potentially losing Justice O’Connor’s “moderate” political philosophy on the Roberts Court is causing concern for seemingly everyone but conservatives. Supreme Court nominee Samuel Alito, whose Senate confirmation hearings are scheduled in January, is considered a conservative. Pro-choice activists want to know if Alito will affirm a constitutional “right to privacy” and “respect legal precedent” (read, not overturn abortion case Roe v. Wade). Pro-life advocates want a justice willing to help a conservative majority to at last jettison Roe v. Wade.
Abortion policy may be the highest profile stakes involved in the O’Connor transition, but there are more. O’Connor’s retirement from the high court is not the passing of a great ideologue like that occasioned by the recent death of the conservative Chief Justice William Rehnquist. O’Connor’s departure is important precisely because she is not the author of a grand over-arching view of the law.
Neither conservatives nor liberals really got what they wanted in O’Connor. She surprised them all with a competitive, civil, consensus-building approach that, if incremental, was ultimately very influential. She is not her former colleague, the late Justice William Brennan, a quintessential liberal whose opinions were always passionate and at times eloquent. She is not her current colleague, Justice Antonin Scalia, a conservative whose acerbic wit, linguistic gymnastics, and aggressive presence led one observer to call him the “Arnold Schwarzenegger of American jurisprudence.” O’Connor is the woman in the middle.
A 1981 Reagan appointee, O’Connor’s evolution from conservative to moderate to one of the most influential women in America is the central theme of this book. O’Connor is the mother of three boys, was a leading Republican political figure in Arizona—a friend of Barry Goldwater—in the 1960s and 1970s, is a late 1980s breast cancer survivor, is a former elected state office holder, and is an Episcopalian with a heavy dose of Western pragmatism.
Sandra Day grew to maturity on an isolated ranch yet was blessed with both a prep school and a Stanford University education. At 19, she enrolled at Stanford University Law School, met her lifelong partner, John O’Connor III, made a lifelong friend in fellow student William Rehnquist, and made law review. Having graduated in the top 10% of her law-school class in 1952 she still received no offers from California law firms, save one for legal secretary. In those days the glass ceiling was very low. O’Connor never forgot this lesson, nor did she ever allow it to hold her back.
Throughout her career she seemed comfortable with what some consider a more traditional role of both wife/mother and successful working professional. As author Biskupic put it, “She favored more opportunities for women without being on the cutting edge of the feminist movement.” Her “traditionally feminine” dress and style allowed her to move rather aggressively in what was a “man’s world” without making “the boys” overly nervous. Sitting on the leading edge of the center became an O’Connor trademark.
As the most moderate member of the conservative court majority in recent years, O’Connor gave great deference to states—her signature on federalism—was tough on criminal defendants, defended capital punishment but in later years sent states a message saying either fix what’s wrong with the system or face the high court’s intervention, and helped form a new test on religious establishment. On the latter she asked whether a reasonable observer would think a municipality was endorsing Christianity by erecting a crèche along with other religious or secular symbols of Christmas. O’Connor rejected exclusive presentations but was never bothered by the presence of religious symbolism in the public square.
While O’Connor “abhors” abortion, and at times voted to restrict its operation, she never voted to overturn it. This is probably the biggest surprise for liberals and biggest disappointment for conservatives of her career. She said the Roe v. Wade trimester formula is unworkable—on a collision course with itself due to advancing technology, and she generally argued state legislatures, not courts, should decide the “if” or “when” of abortion. Conservatives considered her position a betrayal, while liberals accepted it as the logical position for a working female professional.
As always, O’Connor looked to a democratic populace, to state legislatures and national consensus, for her clues about how the high court should rule. This attitude is on display in her gradually changing view of state regulation of consensual adult sexual relations and of affirmative action. In 2003, O’Connor changed her earlier opinion allowing states to outlaw consensual sexual relations between gay people. She did not adopt the liberal view of absolute privacy in the bedroom, but she still kept states from passing laws based on moral disapproval of the group.
Also in 2003, O’Connor wrote the Supreme Court’s majority opinion upholding the University of Michigan Law School’s program considering race in the admissions process. At the same time, she indicated that affirmative action may not be needed in twenty-five years, and she spoke for the court in not allowing undergraduate admissions processes to blindly give minority students additional points guaranteeing their acceptance. Given her perception of the nation’s interest in a diverse leadership, she believed the high court should insert itself in the Michigan cases as an actor not an arbiter, just as she did in voting with the majority in the still controversial ruling in Bush v. Gore, which many people bitterly believe gave Bush the presidency.
Justice O’Connor learned from Justice Brennan how to work the back room of court politics through persistent persuasion. She adopted his technique but not his liberal views. She employed judicial restraint and judicial activism when it suited her. She became a moderate whose in-the-trenches style as an operator allowed her to consistently secure five votes and thus control the outcome of issues and cases important to her. She beat the boys at their own game. She is a politico who in her view never allowed the Supreme Court to stray too far from the mainstream of American culture.
Western Michigan’s United States District Court Judge Robert Holmes Bell, in a recent interview, evaluated Justice O’Connor’s judicial influence in this way: “As she continued on the court she became more Centrist and seemed to relish her pragmatic approach to legal solutions…The difficulty with existential pragmatism on the Court is primarily with consistency (The Rule of Law), which I believe essential for that Court. People want to know what the law is and should be able to predict what the Court would rule, and thereby govern themselves accordingly. But if the Court is pragmatic then every day is a new day with new facts and changed circumstances. Thus, the law is less predictable. While I credit Justice O’Connor for her brilliant intellect I wonder if her contribution to the fabric of the law is what it could have been had she not been more philosophically consistent with her earlier conservative roots and less pragmatic in her approach to the daunting social issues the Court has chosen to face during her tenure.”
So if Justice O’Connor’s successor is either a conservative or a liberal the high court will change, which makes her departure of great political significance. She will not likely be remembered as a great justice, but she will be remembered as a politically astute justice who reflected more than directed her times. She is evidence once again that protestors can sing and chant, but in the end, what matters is what’s in the heart of the next justice.
A shorter version of this book review was published as "A Woman of Influence: How Sandra Day O'Connor Kept Court in Mainstream" The Grand Rapids Press, (January 22, 2006) , p. J5.
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