Too Short for a Blog Post, Too Long for a Tweet 219

Here are a few excerpts from a book I recently read, "First: Sandra Day O'Connor," by Evan Thomas.



But that was not her way. She would walk away from fights she deemed unnecessary, while never shying away from the important ones. She knew when to tease, when to flatter, and when to punch the bully in the nose. She wanted to set an example for her young law clerks, the twentysomethings hired from the top of their law school classes to work for a year in the justices’ chambers, about how to carry yourself and how to help others. She made sure half of her clerks were women. She wanted them to become judges, top-level lawyers, and professors, and they did.

O’CONNOR WAS THE most powerful Supreme Court justice of her time. For most of her twenty-four-plus years on the Court, from October 1981 to January 2006, she was the controlling vote on many of the great societal issues, including abortion, affirmative action, and religious freedom, so much so that the press came to call it the O’Connor Court. She was a global ambassador for the rule of law, and a role model for a generation of young women who saw her break the glass ceiling and were inspired to believe they could do the same.

An undergraduate friend had a father who was a partner at Gibson, Dunn & Crutcher, a top L.A. firm. Sandra traveled to Los Angeles to see him. “You have a fine résumé, Miss Day,” the partner explained. “Fine. But, Miss Day, this firm has never hired a woman lawyer. I don’t see that it will. Our clients won’t stand for it.” 

Then, as Sandra liked to tell the story, the Gibson Dunn partner asked, “Well, how well do you type?” She answered, “So-so.” He said, “Well, if you type well enough, we might be able to get you a job as a legal secretary.” 

Sandra responded, “That isn’t the job I want to find.”

O’Connor’s handling of the ERA reveals her approach to societal problems that are inevitably political problems. The Equal Rights Amendment was (and, decades later, arguably still is) a laudable proposal aimed at guaranteeing the rights of women. But the nation, and certainly the state of Arizona, was not ready for such sweeping change in the early 1970s. The women’s movement generated a severe backlash from both men and women who felt threatened by disruptions in traditional gender roles. O’Connor had keen political instincts, and she preferred to live in the world of the possible, to go for better if best was not immediately obtainable. She understood the importance of compromise, of taking more roundabout roads when a direct route was blocked. In the case of the ERA, women’s rights, she had believed, could be won case by case in the courts, through existing civil rights laws. On the state and local level, laws could be amended to rid gender bias. This was a task perfectly suited to a careful, patient, persistent legislator like Senator O’Connor.

EVERY OTHER YEAR, the Arizona Bar Association asked its members to rate the judges before whom they appeared. In 1978, after she had served three years as a Superior Court judge, O’Connor received the lowest score of the eight judges ranked.8 In 1981, when O’Connor was nominated to the U.S. Supreme Court, legal journalist Steven Brill decided to look more deeply into her low ratings from the Arizona bar. He was expecting, he wrote, to find “someone who did not belong on our highest court.” Instead, he discovered a profile in courage. 

O’Connor was well regarded for the quality of her written opinions and as a fair judge. But her overall grade was always pulled down by the bottom marks she received in the category of “courtesy to lawyers.”9 Recalled personal injury lawyer Bill Jones: “She ranked low. She was tough and lawyers didn’t like it. We were used to getting away with stuff.” It was common practice, for instance, for lawyers to ask for delays in the privacy of the judge’s chambers. Judge O’Connor made them do it in open court. If a lawyer arrived inexcusably unprepared, Judge O’Connor would say, “Proceed. Call your first witness.” Lawyers soon learned to come to her courtroom ready to make their cases.

In 1974, seven years before the first female justice arrived, an up-and-coming young reporter named Nina Totenberg wrote an article titled “The Last Plantation.” She noted that two decades after the Court outlawed racial segregation in public schools in 1954, black men and women still occupied only menial jobs at the Supreme Court. The great liberal Justices Earl Warren, William Brennan, and William O. Douglas used their Court messengers to cut their grass at home or serve drinks at cocktail parties (for no extra pay). When he arrived, Chief Justice Burger made sure that black employees were better paid and better treated. Even so, there was “still an uncomfortable racial cast,” recalled Deborah Merritt, one of Justice O’Connor’s law clerks. “The messengers and elevator operators tended to be black. Everyone else was white.”

On the path of women’s rights, O’Connor did not always have Ginsburg’s activist agenda, but she knew when to get out of the way. In 1996, the Court agreed to hear a sex discrimination challenge to the all-male Virginia Military Institute. At the conference, six justices voted for the admission of women. The chief justice initially voted no, leaving it to the senior justice, John Paul Stevens, to assign the majority opinion. He chose Sandra Day O’Connor. Generously, shrewdly, O’Connor demurred, saying, “This should be Ruth’s opinion.” She knew Ginsburg would be honored to cap her long career in the field of women’s rights by opening up a last male bastion while advancing the law on sex discrimination. “Of course, I loved her for that,” recalled Justice Ginsburg. When Justice Ginsburg announced the result in United States v. Virginia on June 26, 1996, ruling that government agencies must have an “exceedingly persuasive justification” for discrimination based on gender—and citing O’Connor’s precedent in Mississippi University for Women v. Hogan—the two women justices exchanged a knowing smile.