For me, and for generations of female lawyers like me, Sandra Day O’Connor inspired our entrance into the legal field. The service of O’Connor, the first female justice ever to sit on the U.S. Supreme Court, made possible the subsequent appointment of the five female Supreme Court justices to serve after her.
I mourn her passing not because of her jurisprudence. Rather, I mourn who she was as a trailblazer and what her service at the Court did for women in a field to which I had long aspired.
O’Connor called herself an “Arizona cowgirl,” growing up in the hardscrabble southwest on a cattle ranch in a markedly inhospitable climate that averaged only 10 inches of rain per year. The house lacked both indoor plumbing and electricity until she was seven. In her memoir, “Lazy B: Growing up on a Cattle Ranch in the American Southwest,” O’Connor wrote that by the age of eight, she could ride with the cowboys, mend fences, drive a truck, and fire her own .22 rifle. She wrote that prior to her riding with the cattle drives, “it had been an all-male domain. Changing it to accommodate a female was probably my first initiation into joining an all-men’s club, something I did more than once in my life.”
O’Connor was appointed by President Ronald Reagan in 1981 and served until 2006, when she retired to care full-time for her husband who was suffering from Alzheimer’s. Her presence on the Court was so powerful that in 2001, now-Dean of University of California Berkley Law School Erwin Chemerinsky wrote that while Chief Justice William Rehnquist occupied the bench’s center seat, “Lawyers who argue and write briefs to the court know that often they are, for all practical purposes, arguing to an audience of one.” Forbes ranked her in 2004 as among the most powerful women in the world.
But despite the acclaim, O’Connor was possessed of her characteristic “Arizona cowgirl” humility and discipline throughout her career on the bench. She was known to be prodigiously energetic, her close friend Nancy Ignatius once saying of O’Connor that her ability to accomplish such a great deal was owing to her ability to compartmentalize her many responsibilities. As the daughter of a rancher, O’Connor understood too, that work was a seven-days-a-week proposition.
Few could outwork her—a trait she carried with her throughout her professional career. O’Connor’s brother once noted that “All her life, whatever she did, whether it was important, or unimportant, or semi-important, or very important, she just would do it to perfection . . . If you said, ‘The job is to wash dishes well,’ she would do it better than anyone else.”
Even O’Connor’s breast cancer diagnosis she took on as a personal challenge, with her sister saying once that the justice was “learning everything she could about it, reading every book, talking with people and making the necessary decisions about her treatment and options.”
O’Connor was known for her precisely researched opinions and attempts at both practicality and limiting the reach of the majority opinions.” In a 2001 article, law professor Jeffrey Rosen criticized these tendencies, writing that by her “refusal to commit herself to consistent principles, O’Connor forces the court and those who follow it to engage in a guessing game about her wishes in case after case. Each of her decisions is a ticket for one train only.”
While she was appointed by a Republican president with the understanding that she would be a conservative justice, O’Connor proved soon after her confirmation to be a swing vote on the William Rehnquist Court (and first few months of the John Roberts Court). She surprised many who had backed her confirmation by often voting with the liberal justices.
I vehemently disagreed with much of what she wrote. Her opinions addressing controversial social issues such as Grutter v. Bollinger and her co-authorship of the lead opinion in Planned Parenthood v. Casey rankled a good many conservatives.
In her 2003 majority decision in Grutter v. Bollinger, for example, the Court held that state colleges and universities could use race-based admissions policies to promote the educational benefit of a racially diverse student body without violating the Equal Protection Clause of the Constitution so long as they employed a “holistic approach” for each applicant. That opinion was abrogated by the Supreme Court’s recent opinion in the Students for Fair Admission v. Harvard College and a companion case involving the discriminatory admissions practices at the University of North Carolina in which the Court ruled the use of racial preferences in college admissions was unconstitutional.
Of particular heartbreak to me was her joint opinion with fellow Republican appointees Justices Anthony Kennedy and David Souter in Planned Parenthood v. Casey, an opinion that affirmed Roe v. Wade’s central holding—that the Constitution conferred a right to abortion. In Casey, the Court clarified that a state could not impose an “undue burden” on a woman’s right to abortion, while dispatching with Roe’s trimester framework in favor of the “viability” demarcation line in determining when a state could constitutionally regulate abortion.
But in a poetic turn, O’Connor’s retirement opened the door to Samuel Alito’s confirmation in 2006. Alito went on to author the majority opinion in the watershed Dobbs v. Jackson Women’s Health Organization, overturning both Roe v. Wade and O’Connor’s joint opinion in Casey. Those cases, Alito wrote, “represent an error that cannot be allowed to stand.”
In the 17 years following O’Connor’s retirement, the Court has overturned some of her best-known decisions, owing in large part to the appointment of Alito, and more recently, the appointment of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett under former President Donald Trump.
But while the effects of her judicial legacy have been significantly blunted over time, her presence on the Court has left an imprint that won’t soon fade.
In the Supreme Court’s press release Friday, Chief Justice Roberts said of O’Connor: “Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor.”
For herself, though, O’Connor never saw her gender as either an impediment to her service, or of any particular relevance, once saying, “The power I exert on the court depends on the power of my arguments, not on my gender.” Yet before the gains of the feminist movement the rest of the male-dominated legal profession was largely closed off to women—and especially so for married women who were encouraged to stay home.
Though she had graduated from Stanford Law School at the top of her class, O’Connor could not find work as lawyer in any of the law firms to which she applied. The California-based firm of Gibson Dunn did offer O’Connor a job—but as a legal secretary.
O’Connor was so eager to work as a lawyer that she instead applied for a job with the San Mateo County government as deputy county attorney and agreed to work for free until the office could find funding to support her position. Then, when her first son Brian was born, O’Connor made the decidedly un-feminist decision to leave her legal practice and stay home for five years to focus on raising her children.
O’Connor recognized the significance of her appointment as the first female Supreme Court Justice and its impact on future women lawyers. In a 2003 interview, O’Connor said, “Let me tell you one reason why I think it’s important, and that is for the public generally to see and respect the fact that in positions of power and authority, that women are well-represented. That it is not an all-male governance, as it once was.”
As a lawyer, mother, jurist, and wife, she was, as Reagan said when first introducing her to the American people, a woman for all seasons.
For me, she was that, and more.
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