Book Review - "First: Sandra Day O'Connor"

by Mary Welek Atwell, Professor Emeritus of Criminal Justice, Radford University

FIRST:  SANDRA DAY O’CONNOR.  By Evan Thomas.  New York:  Random House, 2019.

            Evan Thomas, longtime editor at Time and Newsweek, has written a hybrid work that combines judicial biography with a more general character analysis of the first woman to sit on the United States Supreme Court.  Sandra Day O’Connor (SOC), appointed by President Ronald Reagan in 1981, remained on the Court until her retirement in 2006.  Whether during those years she was, as Thomas claims, “the most powerful Supreme Court justice of her time,” is arguable.  Even less certain is the extent of her lasting impact on the high court’s jurisprudence.  But regardless of whether O’Connor’s opinions stand the test of time, her position as the path-breaking first female justice deserves the thorough examination it is receiving.   

            Thomas divides the book’s focus between O’Connor’s private and public life.  He interprets the early life on her family’s Lazy B ranch where the young Sandra learned the values of self-sufficiency and hard work as a major influence on her character.  Although the Arizona landscape seemed to linger as a source of nostalgia, O’Connor left her parents, siblings, and rural life behind when she enrolled in Stanford University where she earned both her undergraduate and law degrees.  The stories of her friendship with William Rehnquist at Stanford and her early unsuccessful search for a job with a law firm are well known.  Thomas does provide a few new details about Rehnquist’s romantic pursuit of Sandra Day based on letters in her private papers.  The future Chief Justice was apparently quite enamored with her and gave up his courtship only when she became involved with John O’Connor. 

The O’Connor marriage is an interesting one, in part because it reveals the balancing act required of an ambitious and successful woman in late twentieth century America.  The relationship seems loving and happy, although it is possible to infer that as the demands of her career became more pressing, SOC lived with almost impossible expectations.  Her husband had a successful corporate law practice in Arizona and earned quite a comfortable living for the couple and their three sons.  Through the early years of their marriage before she really developed a political and judicial life, SOC was the ultimate model wife.  She was John’s companion on the dance floor, the super-hostess who cooked everything herself, the community volunteer.  That she managed to maintain most of those activities as her professional life flourished into service in the Arizona State Senate and as a state appeals court judge is an extraordinary accomplishment.  Thomas reports O’Connor’s domestic activities as an interesting sidelight (for example when Reagan’s team came to Arizona to interview her as a Supreme Court nominee, they all raved about her salmon mousse!).  Unfortunately, the author never analyzes why the culinary skills of a person about to become a justice would even be a subject of discussion.  Did observers expect Antonin Scalia to give them a meal he prepared himself?  Was it important to reassure the public and the politicians that even though O’Connor was qualified to sit on the Court, she could still prepare a lovely luncheon?   I found the attention to O’Connor’s domestic talents somewhat demeaning, as if the author found it necessary to repeat often that she was both a first class jurist and a first class woman.

Most observers agree that as a member of the Court O’Connor was generally more pragmatic than ideological.  She was, as some of her clerks commented, impatient with abstractions and philosophical debate and more concerned with the real world consequences of her opinions.  It was such practicality that often allowed her to find middle ground and to serve as the “swing vote” that made a five-justice majority.  Her respect for precedent and her nuts and bolts approach to the law meant that she was able to help forge a majority in several significant abortion rights cases such Webster v. Reproductive Health Services (1989), Planned Parenthood of Southwestern Pennsylvania v. Casey (1989), and Stenberg v. Carhart (2000).  It was O’Connor who developed the test used in those decisions—a law regulating abortion was unconstitutional if it imposed an “undue burden” on a woman.  After O’Connor left the Court and was replaced by the more conservative and more ideological Samuel Alito, this test was less likely to be applied.

Another area where O’Connor sought middle ground was affirmative action.  (The author shows his own disapproval of such policies by repeatedly referring to “racial preferences” rather than affirmative action.)  In two cases from the University of Michigan in 2002, she split the difference, voting with the conservatives to eliminate the numerically-based admissions policy in the undergraduate colleges but writing the decision upholding some consideration of race in law school admissions.  She based that holding on the need for diversity in the legal profession, while noting that such policies should outlive their usefulness in the next generation. 

Given O’Connor’s careful attention to the specific facts of each case and her general respect for precedent, her vote with the conservative majority in the 5-4 decision, Bush v. Gore (2000) that effectively gave the presidency to George W. Bush, cannot be readily explained by anything other than partisanship.  Like her fellow justices, she disliked talking about that case and never actually explained her vote.

Thomas offers descriptions of O’Connor’s relationships with her fellow justices.  She was, of course, a long-time friend of Chief Justice Rehnquist, although they did not always agree on how cases should be decided.  Justice Lewis Powell who preceded her on the Court by a decade was a congenial colleague and something of a mentor.  They seemed to share a tendency for moderation and compromise.  On the other hand, Thomas portrays Harry Blackmun as O’Connor’s cantankerous adversary and Antonin Scalia as her rather mean-spirited critic.  Especially interesting is the author’s handling of the relationship between the first two women to serve on the Court, O’Connor and Ruth Bader Ginsburg.  He mentions that they were “not friends” more times than seems absolutely necessary.  SOC did not admire her successor Alito, fearing that he would reverse all her accomplishments.  She thought that the last thing the Court needed was “another Catholic man.”

            Sandra Day O’Connor resigned from the Court in 2006.  Undoubtedly, she could have served for several more years, but her husband’s Alzheimer’s disease was becoming more severe and she felt that her duty was to devote herself to his care.  He died in 2009 but both before and after his death, SOC maintained a full and active life for herself until her own Alzheimer’s diagnosis eight years later.  At that point she retired from public life.

            O’Connor left a legacy, not only in the decisions she wrote.  In fact, many of those dealing with reproductive rights and affirmative action are not likely to last.  But she forged a path for women in the legal profession as part of the larger women’s movement that would cement the presence of female attorneys at every level of the law, from local prosecutors and public defenders to the highest court.  As Thomas argues, she was the right woman to be that pathbreaker, at least in part because despite her formidable intellect and her powerful ambition, she embodied the reassuring characteristics of the devoted wife, loving mother, and domestic virtuoso.  Women who follow in her footsteps are allowed to be less perfect.