16 minute read
Justice Sandra Day O’Connor
Justice Sandra Day O’Connor
Famous American Justices
By Harry Munsinger
Sandra Day O’Connor was born Sandra Day on March 26, 1930, in El Paso, Texas.1 Sandra spent her early childhood on her parents’ Arizona ranch, where she loved to ride horses. The ranch, however, was far away from formal schools, so her parents sent Sandra to El Paso to live with her grandmother so that she could attend school.2 At the time, no one would have guessed that she would become the first woman to serve on the Supreme Court of the United States. Sandra’s grandmother taught her that it was important to work hard and strive for success, and that she could succeed regardless of gender. Sandra enrolled in the Radford School for Girls, skipped two grades, graduated from high school at age 15, and enrolled at Stanford University at age 16.3 After graduating with a degree in economics, she applied to Stanford Law School; she was accepted as one of four women in a class of 150 students.
During law school, she met her future husband, John O’Connor, when the two were paired to cite check a law review article. After law school, Sandra married John and applied to law firms in Los Angeles and San Francisco but received no response. A partner at Gibson, Dunn, and Crutcher—a top Los Angeles law firm—told her that even though she had a good resume, the firm would never hire a woman because clients would not stand for it. The partner offered Sandra a job as a legal secretary, but Sandra declined. Instead, she took an unpaid position with the San Mateo County District Attorney’s office to obtain experience.4
She left her position when John was drafted into the Army, and the couple moved to Frankfurt, Germany. There, she worked for the Army as a civilian attorney.5 Three years later, the couple returned to the United States. John joined a law firm in Phoenix, and the couple began a family. Sandra did not work when her children were young but volunteered for various political organizations. She returned to work in 1965 as an assistant attorney general for Arizona.6 In 1969, she was appointed to the Arizona Senate.7 Three years later, she became the first female leader of a state Senate in the United States.
Judge O’Connor
In 1974, Sandra became an elected judge in Phoenix, and in 1979, Arizona Governor Babbitt appointed her to the Arizona Court of Appeals, to keep her from running against him. That summer, she met Chief Justice Warren Burger, and they discussed law and politics late into the evening. Burger decided Judge O’Connor was a good choice to serve as the first woman justice for the Supreme Court of the United States. To further that effort, Burger appointed O’Connor to important judicial committees so that she could become better known within the legal community. In 1981, President Reagan nominated her to the Supreme Court8 to replace retiring Justice Potter Stewart. Senators Barry Goldwater and Strom Thurmond escorted O’Connor through the hearings. The Senate confirmed her nomination to the Supreme Court unanimously.
Justice O’Connor
On September 25, 1981, Chief Justice Burger walked Justice O’Connor down the Supreme Court steps as photographers snapped pictures of the historic event. Accompanied by President Reagan, Justice O’Connor met the other Justices in their private chambers. When she was escorted to the Court’s grand chamber, Justice O’Connor sat in the chair originally used by Chief Justice John Marshall. She took the oath of office, donned her black robe, and took her seat on the far right of the other eight Justices.
In her first meeting with other Justices to review cases, she took notes about the cases selected for review. Shortly after she joined the Court, Chief Justice Burger sent her a memo about the dynamics of a lone female among a group of males in a work environment. The memo recommended a passive role to accommodate the male Justices and make the group more productive. She ignored the recommendation and became an active member of the Court.
Justice Lewis Powell helped O’Connor organize her office by assigning her one of his best legal secretaries. She was grateful for his help, and they became good friends. Powell, a Virginia gentleman who appreciated good breeding, was impressed by O’Connor’s intellect and upper-class manners. Justice O’Connor retained Justice Stewart’s law clerks because it was too late in the term to select her own. She listened to her law clerks’ advice because they were fresh from top-tier law schools and had learned from the country’s brightest constitutional law professors. She quickly learned the latest thinking about the United States Constitution.
Justice O’Connor’s law clerks were concerned about how she would perform during questioning of attorneys in oral argument, because East Coast lawyers and Ivy League graduates looked down on her as having an inferior legal education. As the junior Justice, O’Connor voted last during the Court’s weekly conferences. On the first case before the Justices with O’Connor on the Court, she cast the deciding vote and felt a keen sense of power. Justice O’Connor was often the swing vote at judicial conferences because she was a moderate, which gave her significant power on the Court. For example, she cast the deciding vote in Plyler v. Doe, which held that undocumented aliens have a right to free public education in America.9 The pressure on O’Connor was enormous because she was the first woman on the Supreme Court. To avoid errors, she personally checked every citation her clerks proposed before accepting an authority as support for an opinion she authored.
Engle v. Isaac
Shortly after joining the Court, Justice O’Connor authored an opinion limiting the right of criminal defendants to file habeas corpus petitions in federal court. Prisoners file writs of habeas corpus to force the government to show why the prisoners are incarcerated.10 The writ had become a favorite tactic of prisoners on Death Row to have their cases moved from state to federal court, where they believed their civil rights would more likely be protected. Writing for a five-to-four majority, O’Connor limited the right of a prisoner to use a writ of habeas corpus to move a case to federal court without exhausting state remedies.
Mississippi University for Women v. Hogan 11
In March 1982, O’Connor heard her first sex discrimination case. Joe Hogan—a 26-year-old male—wanted to become a nurse. He applied to Mississippi University for Women and was rejected because he was a male. He won admission to the university in state court, but the women’s college appealed to the United States Supreme Court. When Mississippi University for Women v. Hogan was considered in chambers, Chief Justice Burger, and Justices Rehnquist, Powell, and Blackmun voted to allow the university to remain all female. Justices Brennan, White, Marshall, and Stevens voted to allow men to attend the all-female school—a four-to-four tie. O’Connor held the deciding vote. She followed Justice Brennan’s advice by ruling it was not necessary to decide the issue for all single-sex schools in America, considering the Mississippi University for Women was the only single-sex college in that state. By narrowing the grounds for the decision, she was able to get five Justices to allow men to enter the university without upsetting singlesex education in the entire country.
City of Akron v. Akron Center for Reproductive Health, Inc. 12
Her next important case involved state imposed limits on abortion. The issue involved the City of Akron’s restrictions discouraging women from having abortions. The City required women to sign a consent form, listen to a lecture that a fetus is “human life from the moment of conception,” and wait twenty-four hours before receiving an abortion. O’Connor was willing to allow states to pass restrictions on abortion, so long as the restrictions did not place an “undue burden” on a woman’s access to an abortion. Six justices voted to strike down Akron’s restrictions on abortion, while O’Connor, White, and Rehnquist voted to sustain the restrictions.
Although she failed to convince a majority to support her position, Justice O’Connor and Justice Brennan usually succeeded in obtaining a majority. O’Connor was direct, and Brennan was subtle, but both were adept at convincing other Justices to support their views and maintain a majority once it formed. Justice O’Connor worked hard to remain friends with Brennan, asking her husband John to send him Irish jokes, and she gave a party in her chambers to celebrate Brennan’s thirty years on the Court. Although friendly, they did not trust each other when it came to writing opinions because both Brennan and O’Connor tried to write constitutional law into footnotes, hoping the other Justices would not object.
Wallace v. Jaffree 13
The decision prohibiting prayer in school, Engel v. Vitale, was one of the Warren Court’s more unpopular decisions. To get around Engel’s prohibition, the Alabama legislature introduced a “moment of silence” at the beginning of class. Justice O’Connor joined the majority in declaring that a moment of silence in public schools violates the Establishment Clause of the United States Constitution, reasoning that the true purpose of the moment of silence was to reintroduce prayer in schools in contravention of the Engel decision.
Planned Parenthood of Southeastern Pennsylvania v. Casey
O’Connor had another opportunity to consider the issue of abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. For the first time, a case raised the issue of abortion before a Supreme Court with a conservative majority. At that point (1992), many legal scholars believed the Court might overturn Roe v. Wade. 14 The underlying state law required a woman who wanted an abortion to wait twenty-four hours after receiving a lecture on the development of the fetus, and to notify her husband, if she was married, before having an abortion. At the first conference after oral argument, five Justices wanted to overturn Roe v. Wade. However, Justices Kennedy, Souter, and O’Connor secretly drafted a narrow opinion that preserved the right to an abortion with restrictions, and it attracted five votes at the next conference. The following year, another female Justice joined Justice O’Connor on the Supreme Court, after the Senate confirmed the nomination of Ruth Bader Ginsburg.
In 1996, Justice O’Connor began thinking about retiring because she would soon turn sixty-six years old and felt she had been on the Court long enough. However, Bill Clinton was President, and she did not want him to appoint a liberal Justice to replace her. Moreover, legal scholars referred to the Supreme Court as the O’Connor Court because she was often the swing vote in a five-to-four majority. Justice Kennedy was the other potential swing vote, but he was more reluctant to cast the deciding vote. In contrast, Justice O’Connor was a moderate Justice and joined neither camp consistently. She tried to follow the facts and the law and believed the Court ought not to make law but follow precedent. She was careful to protect the rights of women and children before the Court. A good example was Davis v. Monroe County Board of Education, 15 where the Court determined a school could be liable for student-on-student sexual harassment under Title IX of the Civil Rights Act.
Bush v. Gore 16
Perhaps the most important case to come before the Supreme Court during Justice O’Connor’s tenure was Bush v. Gore, a decision that would decide who would become President of the United States. The presidential election of 2000 between Al Gore and George Bush was essentially a tie because neither candidate won a clear majority in the electoral college. The issue arose when Florida voted for Bush by so few votes as to trigger an automatic recount under state law. The problems in Florida flowed from old voting machines, older voters, and confusing ballots, all producing chaos during the counting process. The voting machines could not count paper ballots with hanging or dimpled chads, requiring hand-counting of those ballots. The Republican secretary of state was prepared to certify that Bush had won the election, but the Florida Supreme Court, dominated by Democratic judges, ruled that the state authorities had to hold a recount over the entire state, which would favor Gore. The Bush legal team appealed the state decision to the United States Supreme Court and asked for an injunction to stop the state-wide recount.
When the Justices met on December 9, 2000, all five Republican Justices voted to issue a stay and stop the statewide Florida recount without debate. Based on that vote, Bush won the presidency. However, the five Republican Justices needed a legal reason to justify their decision. They scheduled oral argument for two days later. The Court’s conference following oral argument was heated. Justice O’Connor finally suggested that the Court use the Equal Protection Clause of the Fourteenth Amendment to reason that the State of Florida, by using different standards in the various voting districts of the state, had violated Bush’s right to equal treatment under the law, and that the violation justified stopping the statewide recount. O’Connor wrote the Court’s five-to-four majority opinion, holding that the ruling was “limited to the present circumstances” and was a onetime solution to a difficult political problem.
Gratz v. Bollinger 17
The next important case involved affirmative action in school admissions. Under the doctrine of affirmative action, universities, businesses, and law schools could consider race as a factor to increase the admission of African American students. The doctrine triggered resentment among white and Asian students denied admission in favor of lowerscoring African American students. The University of Michigan used a 150-point scale to rank students and gave extra points to African American, Native American, and Hispanic students based on their race or ethnicity. In Gratz v. Bollinger, two white Michigan residents sued the University of Michigan and alleged that the university’s admission policy was racially discriminatory and violated their equal protection rights. The Court, in a six-to-three decision, ruled that the university’s admission system violated the Equal Protection Clause of the United States Constitution and Title VI of the Civil Rights Act of 1964. Chief Justice Rehnquist authored the opinion, reasoning that giving extra points to minority students had the effect of making race the main factor in the decision to admit a student and was, therefore, unconstitutional.
Justice O’Connor voted with the conservative majority in rejecting the university’s undergraduate admission policy, but as for the university’s law school admission policy, she voted with the liberal wing of the Court to uphold a flexible affirmative action plan in which the school could consider race in admissions, as long as race was not the deciding factor. Her reasoning was that law schools provided national leaders, and national leaders should reflect the country as a whole. She believed that a “critical mass” of minority law or business students was necessary for the welfare of all students on campus. Justice O’Connor also suggested a twenty-five-year limit on law school affirmative action plans, although businesses and law schools largely ignored the suggested time limit.
Eyeing Retirement
In August 2004, O’Connor decided she needed to leave the Court to take care of her husband John who had Alzheimer’s Disease. When the new Supreme Court term began in October 2004, Chief Justice Rehnquist was not feeling well and announced he was going to the hospital for thyroid surgery. During the operation, his surgeons discovered Rehnquist had developed thyroid cancer, and his future on the Court was questionable. After the second inauguration of George W. Bush in January 2005, O’Connor and Rehnquist discussed who should resign first, because they did not want two vacancies on the court in the same year. When Rehnquist returned to the Court, he announced that he intended to stay for another year, so O’Connor decided to retire immediately. President Bush nominated John Roberts to replace O’Connor, and she planned to resign once Roberts was confirmed. However, at the end of August, Chief Justice Rehnquist was rushed to the hospital suffering from a recurrence of aggressive thyroid cancer that proved terminal. Before Rehnquist died, he suggested President Bush nominate John Roberts as the new Chief Justice, and Bush agreed. O’Connor told President Bush she would continue to serve on the Court until the Senate confirmed her replacement.
Ayotte v. Planned Parenthood of Northern New England 18
Before Justice O’Connor left the Court, another abortion case appeared on the docket. In Ayotte v. Planned Parenthood of Northern New England, the issue was whether minors must notify their parents before getting an abortion. Justice O’Connor wrote an opinion for a unanimous Court, sending the decision back to the lower court for a narrowly tailored remedy that required parental notification while meeting the needs of the state, minors, and parents.
The first four women Supreme Court Justices: Sandra Day O’Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan, October 1, 2010. O’Connor was retired when the photograph was taken.
Retirement
On January 31, 2006, Sandra Day O’Connor retired from the Supreme Court after decades of service. She and John took a boat trip off the coast of Turkey, but it was a disaster because John was developing latestage Alzheimer’s Disease, and O’Connor was concerned he might jump overboard and drown. She realized she could no longer take care of John and asked her children to find John a suitable assisted-living facility. Because John hated to fish, the family persuaded him to enter the Huger Mercy Living Center in Phoenix by telling him they were taking him to a hotel while Sandra went fishing. John passed away in 2009.
By March 2013, Sandra began to show signs of failing health and became forgetful and irritable. By late Spring 2013, she was diagnosed with dementia and fell into denial for a while before acknowledging she remembered less. In 2017, she moved to an assisted living facility in Phoenix, Arizona.
ENDNOTES
See article in print.
