Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93
During a crucial period in American law — when abortion, affirmative action, sex discrimination and voting rights were on the docket — she was the most powerful woman in the country.
Sandra Day O’Connor, the first woman on the United States Supreme Court, a rancher’s daughter who wielded great power over American law from her seat at the center of the court’s ideological spectrum, died on Friday in Phoenix. She was 93.
The Supreme Court announced her death in a statement, saying the cause was complications of dementia. She grew up in Arizona and lived there most of her life.
In a public letter she released in October 2018, when she was 88, the former justice, who had not been seen in public for some time, announced that she had been diagnosed with the beginning stages of dementia, “probably Alzheimer’s disease,” and consequently was withdrawing from public life.
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Although William H. Rehnquist, her Stanford Law School classmate, served as chief justice during much of her tenure, the Supreme Court during that crucial period was often called the O’Connor court, and Justice O’Connor was referred to, accurately, as the most powerful woman in America.
Sandra Day O’Connor’s Last Times Interview
The New York Times sat down with Sandra Day O’Connor in 2008 to discuss her groundbreaking life and work as the first woman on the Supreme Court. She spoke with us with the understanding the interview would be published only after her death.
“I didn’t know lawyers and judges. We were cattle ranchers. That wasn’t — we didn’t know people like that. So I didn’t know what I was getting into, and it never entered my mind that there wouldn’t be opportunities for women lawyers. It just never occurred to me. Should have.” Sandra Day O’Connor was the first woman justice on the Supreme Court. During her tenure on the high bench, she was the crucial swing vote, the decisive force in cases that shaped history — from states’ rights to sex discrimination, voting rights to religion, affirmative action to abortion. For nearly a quarter-century, the law was basically what Justice O’Connor thought it ought to be. The onetime housewife from suburban Phoenix came to be known as the most powerful woman in America. It all began one day in July 1981. O’Connor, who was just a mid-level state judge in Arizona at the time, was working in her chambers when she got a bolt from the blue, a telephone call from the White House. President Ronald Reagan wanted to appoint her to the Supreme Court. “Why do you think you were chosen?” “Well, when Ronald Reagan was running for president, he was eager to have some support from women and it was a little dicey for him. There was an abortion issue out there, so women were somewhat skeptical. And he said during the course of his campaign, if I get a chance to put a qualified woman on the Supreme Court, I would like to do that.” For nearly 200 years, the high court was a domain reserved for men. Even the mere suggestion from Reagan made front-page news. “My name surfaced on that list. I’m not sure how or why, except that there were not many Republican women judges. There weren’t many women judges anyway — federal or state. But I was a Republican, I had served in all three branches of Arizona’s government. And unbeknownst to me, they sent a couple of people to Arizona to make inquiry about me. They had a big paper trail to review and see if they thought they approved.” “Perhaps it didn’t hurt that Ronald Reagan was a cowboy at heart.” “I think that was what he most liked, was the fact that I’d grown up on the back of a horse.” Sandra Day was a trailblazer from the beginning. Born in 1930, she was raised on the Lazy B Ranch in a remote corner of Arizona. “We were 35 miles from the nearest town. An adobe house that was plastered and it had a big screen porch around it, where the cowboys slept. No indoor plumbing, no running water, no electricity. It was rather primitive.” “When you were a child, what did you want to be when you grew up?” “A cattle rancher. I liked it. It was wonderful. That was the only thing I knew anything about. I think I was the only student in my graduating class who went away out of state to college.” At Stanford University, the cowgirl met the person who would inspire her life’s ambition, a professor named Harry Rathbun. “He had a spiritual quality almost. He was the first person to really tell the students this is a huge, complicated world we’re living in.” TV Announcer: “Let us face without panic the reality of our times. The fact that atom bombs —” “It’s a dangerous world. We have to learn how to live together in peace in this world. And a single individual, even in this complex world of ours, can make a difference. Because of Prof. Harry Rathbun, I decided to apply to law school.” “Weren’t you told that there was no way for a woman to be a lawyer back then?” “I was not told that. In fact, it was true. And if I had known that, I perhaps wouldn’t have applied.” At Stanford Law School, O’Connor met two men who’d play a big role in the rest of her life: William Rehnquist, her future colleague on the Supreme Court — “I knew him well. He loved to play a card game, or charades or go to the movies. He was really so much fun.” — and John O’Connor, her future husband. “John was a year behind me. I was graduating that year and he had another year to go. One of us had to work and that was going to be me. And I placed calls to many of the firms, and they wouldn’t talk to me. I was female. They didn’t want to talk to me. I didn’t realize that I was going to have trouble even getting an interview. I had an undergraduate friend at Stanford whose father was a partner in a big California law firm. And he said, ‘Oh, Miss Day, you have a fine resume here.’ He said, ‘The problem is this firm has never hired a woman as a lawyer and I don’t see the time when we will. Our clients wouldn’t stand for it.’ And then he said, ‘Well, how well do you type?’ I heard that the district attorney in San Mateo County, Calif., had once had a woman lawyer on his staff, so I made an appointment to go see him. He was in the old San Mateo County Courthouse, which now is an historic building. It had a big, stained glass dome. It was fabulous. But he said, ‘The fact of the matter is, I don’t have any money to hire anybody right now.’ I said, ‘I can work for nothing until you get funding.’ And I said, ‘I know you don’t have an empty space, but I met your secretary and she’s very nice. And there’s enough room in her office to put another desk, if she’s willing to have me.’ That was the deal we struck. So it all turned out for the best, but it was sure hard to get that first job as a lawyer.” “You once wrote, ‘If society does not recognize the fact that only women can bear children, then ‘equal treatment’ ends up being unequal.’ After you moved back to Arizona, how did you manage to both practice law and raise three sons?” “It’s not easy. It was 1957. I was pregnant with my first child at the time I took the Arizona bar exam, and we had a little boy. None of the law firms in Phoenix had yet decided to hire women lawyers, so we opened our own little law office out in a suburb. And it wasn’t the kind of work usually handled at the U.S. Supreme Court. But I couldn’t go to work every day if I didn’t have adequate and reliable help at home, and I didn’t. So I had to give up my little neighborhood law firm and I stayed home for close to five years.” O’Connor’s law career stalled, but she became a rising star in local Republican politics. “The Republicans managed to elect the attorney general of Arizona and he hired me as an assistant attorney general. Well, the problem was I was the only woman and he didn’t know what to do with me. So he sent me out to the Arizona State Hospital for the mentally ill, and said you can have space out there for your office. I said, ‘What am I supposed to do?’ ‘Well, whatever they need.’ Maybe the most important thing I did there was to start legal aid clinic for the patients. They were losing their homes, their children, everything. They were locked up. The attorney general decided, gee, maybe we could use this woman back down at the headquarters. So, he brought me back. And then I had some very good clients, like the governor and the Legislature. I really enjoyed that work and I certainly got to know state government from the ground up.” When a state senator got elected to Congress in 1969, O’Connor was tapped to fill his seat. “It was great. You could decide what problems you wanted to work on and develop legislation to do something. I had enough of a voice that I could normally get those things enacted. My colleagues, to my shock, elected me as majority leader of the Arizona State Senate. That was the first time in the United States that a woman had ever held a legislative leadership post of any kind. Isn’t that amazing? It had never happened before.” State Senator O’Connor was a loyal Republican, except when it came to issues involving women, whether it was backing the Equal Rights Amendment or avoiding the anti-abortion battles taking hold across the country. After two years at the helm of the Legislature, O’Connor returned to the law, this time as a judge — first on a county court and later, a state Court of Appeals. She’d served on the bench only seven years when that fateful phone call arrived in 1981. “So today I’m pleased to announce the nomination of Judge Sandra Day O’Connor of Arizona Court of Appeals for confirmation as an associate justice of the United States Supreme Court.” The press and the public were quite taken by Reagan’s revolutionary nominee, but there was opposition from right-to-life conservatives. “Some 200 of them picketed the Senate building.” “We see it as a total repudiation of the views made public by President Reagan.” “They’re already pressuring U.S. senators to vote no on Judge O’Connor to try and block her nomination to the Supreme Court.” “Judge O’Connor, there has been much discussion about your views on the subject of abortion.” “My own view in the area of abortion is that I am opposed to it as a matter of birth control or otherwise. The subject of abortion —” Despite the opposition, the Senate voted 99 to 0 to confirm the nomination. “Do you have any trepidation?” “No, it should be very interesting.” When O’Connor arrived for her first day on the bench, the world was watching to see how a female would fare. “There was neither comment nor ceremony as Mrs. O’Connor took her seat for the opening argument.” “We’ll hear arguments first this morning in No. 1464, James G. Watt, Secretary of the Interior, against the Energy Action Education —” It took almost 40 minutes before she gathered the nerve to pose a question in oral arguments. “If the government complies with what Congress intended — in other words —” “Mr. Silard, may I —” “May I just finish your thought? The congressional —” But just when it seemed the first lady on the high court might wilt under the pressure, the cowgirl found her voice. “It isn’t clear, is it, whether even if California were to win here, that the secretary would be likely to use the bidding systems that California —” With her bold stature and piercing gaze, Justice O’Connor proved herself a force to be reckoned with — not only in oral arguments, but also in chambers. “The most electrifying moment of my first week on the court was that first time I sat in our conference room at the table to actually discuss and resolve cases that had been heard and argued. That was the moment of truth, the rest was grandstanding. That was the real thing.” Right away, the divide on the court endowed O’Connor with the power that defied her position. “We were seated, nine of us, around that table discussing the merits of the cases argued that week. And the discussion starts with the chief justice. And the chief explains how he thinks the case should be resolved and why, and then the next most senior, and on around the table, ending with the junior justice. That was me. The very first case that we discussed came to me 4 to 4. It wasn’t that I was seeking that role, but very often the court was divided in that fashion.” That made the first woman justice the key pivot point, the swing vote who single-handedly decided if the four conservative justices or the four liberals prevailed in a case. In time, it became clear Justice O’Connor valued balance and pragmatism over purity. From her experience in life and local government, she believed impacts mattered. And in case after case, she was willing to reconsider preconceptions and to ally with opposing factions on the court — even on abortion. Initially, she took the side of conservatives, backing laws limiting abortions and attacking Roe v. Wade. “Whether the state may reasonably regulate in the area of abortion in a manner designed to ensure an informed decision by a pregnant woman —” “Counsel, is the city relying on all four of the alleged state interests that you described in this instance?” “That’s correct, your honor.” “OK.” But O’Connor refused to join conservatives when they tried to overturn Roe v. Wade. Twice, she single-handedly had the chance to outlaw abortions and she refused. First, in 1989 — “— require women to have abortions after so many —” “I surely do not.” And again in 1992, with Planned Parenthood v. Casey, a landmark 5 to 4 decision that Justice O’Connor delivered for the court. “We conclude that the central holding of Roe should be reaffirmed. Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.” “Do you think the issues decided in Roe v. Wade are now settled a matter for the court?” “It’s always possible that the Supreme Court of the United States can conclude that in some earlier decision it made it’s — it ought to be reversed, that it’s no longer valid. The court certainly did that in a very dramatic way in the 1950s in Brown v. Board of Education, but it is not easily done or lightly done.” When it came to affirmative action, O’Connor began as a skeptic, but became a defender in 2003, with the polarizing case of Grutter v. Bollinger. “Petitioner Barbara Grutter is a white Michigan resident who was denied admission to the law school.” Justice O’Connor cast the decisive vote in the 5 to 4 decision that upheld affirmative action in university admissions. “Showing that such diversity promotes learning and better prepares students for an increasingly heterogeneous workforce, for responsible citizenship, and —” “You wrote, ‘Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.’ Do you think this principle is in danger?” “I think it’s a very important principle. I hope it isn’t in danger. It shouldn’t be. We’re a nation comprised of people from many different countries, backgrounds, religions. When I went to law school, 1 percent of the law students were female — today it’s 50. We’ve had what amounts to a revolution in this country, and it’s been all to the good.” “Over the years, is it fair to say your opinions became more moderate? Did the court become more conservative? Are both things true?” “I don’t think either of them are true. The fact of the matter is the Supreme Court considers an amazing array of issues. Amazing. I just don’t think it’s accurate to say somebody has this great unified theory and that’s how everything has to be decided. It’s not that way.” When she retired from the court in 2006 to care for her husband, who had been diagnosed with Alzheimer’s disease, Justice O’Connor seemed to have no regrets, even about what was probably her most controversial decision: Bush v. Gore. “An election in turmoil, a presidency in the balance.” “A recount in the Sunshine State is now underway.” “Per the Secretary of State’s request to stop the recount on her term.” In December 2000, Justice O’Connor was part of the 5 to 4 majority that gave George Bush a victory in the disputed presidential election when the Supreme Court ordered four Florida counties to stop recounting votes. “Some of the ballots came out with one hanging chad, and some with two hanging chads, and some with three hanging chads. The counties didn’t have a uniform rule. They just let the vote counters do whatever they thought right. Well, that’s not equal protection. I mean voting matters, doesn’t it? It was a close election. And so we like to think that the ballots are going to be counted, according to some set rules so that it isn’t just the whim of whoever’s counting the ballot. The popular vote count went for Mr. Gore, the Electoral College went the other way. And I think that’s what really bothers people. The Supreme Court didn’t change that.” But O’Connor always remained willing to rethink her preconceptions. In 2013, she told the Chicago Tribune editorial board she had misgivings about the Bush v. Gore decision. She said it ‘stirred up the public’ and ‘gave the court a less than perfect reputation.’ “We were hearing more unfortunate remarks about judges than I remembered in my very long lifetime. Activist judges — godless, secular humanists trying to impose their will on the rest of us. It’s shocking to me because when the framers created our form of government, they created three branches of government. And the framers thought it was terribly important to have a judicial branch that had the capacity, ability and independence to enable them to impartially decide issues of law, even if it meant holding a law unconstitutional or an act of Congress unconstitutional. That was their vision.” “I’m going to ask you a question you were asked at your Senate confirmation, which is: How you would like to be remembered?” “Oh, I said the tombstone question. And I said I would like it to say, ‘Here lies a good judge,’ and I haven’t changed my mind.”
Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.
That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003.
When President Ronald Reagan named her to the Supreme Court in 1981 to fulfill a campaign promise to appoint the first female justice, she was a judge on a midlevel appeals court in Arizona, where she had long been active in Republican politics, though she had friends in both parties. Fifty-one years old at the time of her nomination, she served for 24 years, retiring in January 2006 to care for her ailing husband. As the court moved to the right during that period, her moderate conservatism made her look in the end like a relative liberal.
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“Liberal” was undoubtedly not her self-image, but as the court’s rightward shift accelerated after her retirement — her successor, Samuel A. Alito Jr., was notably more conservative — she lamented publicly that some of her majority opinions were being “dismantled.”
“What would you feel?” she responded to a questioner in 2009, who asked her reaction to decisions that had undermined some of her rulings.
Justice O’Connor spent an active retirement, sitting as a visiting judge on federal appeals courts around the country and speaking and writing widely in support of two causes, judicial independence and civics education. She also catered to her six grandchildren, taking them on trips and writing two children’s books based on her own colorful childhood on a remote Arizona ranch.
Her husband, John Jay O’Connor III, whom she met when they were both students at Stanford Law School and married shortly after her graduation in 1952, died of Alzheimer’s disease in 2009.
Your Thoughts on Sandra Day O’Connor
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Despite graduating near the top of her law school class, she was offered only a secretarial position when she applied for a job at a major law firm. The notion that a woman might sit on the Supreme Court seemed distant indeed, not only then but even on the brink of her own appointment.
The idea seemed so novel that Ronald Reagan’s promise during his 1980 presidential campaign made front-page news. Only two years before that, a Broadway comedy, “First Monday in October,” featured a conservative female Supreme Court justice, and the very idea was played for laughs. When life imitated art on July 7, 1981, Paramount moved up the release date of the movie version of the play by five months, releasing it in August. Ultimately, of course, it was Sandra O’Connor who had the last laugh.
At a Supreme Court Historical Society event marking the 30th anniversary of her appointment, the retired justice recounted her reaction upon learning that she was the president’s choice to succeed Justice Potter Stewart, an Eisenhower appointee who had retired after 23 years. “It made me very nervous,” she said. “It’s all right to be the first to do something, but I didn’t want to be the last woman on the Supreme Court. If I took the job and did a lousy job, it would take a long time to get another one.”
Formidable Presence
Justice O’Connor’s recollection of an attack of nerves may have been charming to her audience of Supreme Court bar members and Washington insiders but scarcely plausible to them: It was simply hard to imagine a nervous Sandra Day O’Connor. Athletic (she enjoyed golf, tennis, skiing and riding), with a strong grip and a piercing gaze that could turn into an intimidating stare, the public Justice O’Connor was the picture of self-confidence.
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On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme Court advocate: Is your case properly in this court? Why shouldn’t we dismiss it as moot? What gives your client standing?
Carter Phillips, a lawyer who argued dozens of cases before Justice O’Connor, once said that he barely bothered to prepare openings for his arguments because he knew that from the start he would be batting back questions from Justice O’Connor. In his first argument after she retired, he recalled, he was met with silence from the justices and had to scramble to think of what to say during the opening minutes of his allotted time.
The route to success in arguing a case before Justice O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshaling the facts to demonstrate a decision’s potential impact. Justice Anthony M. Kennedy described her with admiration as a pragmatist, which he defined as “paying attention to real-world consequences.” Her jurisprudence, Justice Kennedy wrote in a tribute published after her retirement, was “grounded in real experience.”
Indeed, she had experience that none of her fellow justices shared: running for election and serving in the legislative branch of state government. Before successfully seeking an Arizona state court judgeship in 1974, she spent five years in the Arizona Senate, winning two re-election campaigns and becoming majority leader in 1972. No woman in the country had held such a high office in a state legislature.
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In case after case, Justice O’Connor searched for practical significance and was willing to rethink her preconceptions. For example, although she was intensely skeptical of government programs that allocated benefits on the basis of race, and led the court in rejecting special provisions for racial minorities in government contracting and electoral redistricting, she modified her position when it came to affirmative action in higher education admissions.
Her opinion in Grutter v. Bollinger, a 2003 decision that upheld an affirmative-action admissions program at the University of Michigan Law School, acknowledged arguments made by corporate executives and retired military officers, who filed briefs in support of the program. “Affirmative action’s benefits are not theoretical, but real,” she wrote for the 5-to-4 majority, adding: “Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.”
Years earlier, in a tribute to Justice Thurgood Marshall following his retirement in 1991, she had offered a hint that her views on racial justice were evolving.
In her essay, published in the Stanford Law Review, Justice O’Connor described the impact of serving with that civil rights giant for 10 years, sitting with him at the justices’ conference table and listening to him describe the experiences of his life. His stories always had a point, she wrote, “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
She added that she found herself still listening for Justice Marshall’s voice, “hoping to hear, just once more, another story that would, by and by, perhaps change the way I see the world.”
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Although Justice O’Connor often joined the court’s conservative majority in deciding religious cases in a way that lowered the wall of separation between church and state, she grew increasingly concerned about the polarizing nature of the debate over the role of religion in public life.
In a 2005 case, McCreary County v. American Civil Liberties Union, she joined a 5-to-4 majority in invalidating the display of framed copies of the Ten Commandments on the walls of courthouses in Kentucky. Respect for religious pluralism had served the country well in contrast to other societies, she wrote in a concurring opinion, adding, “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
Preserving Roe v. Wade
In Sandra Day O’Connor, in other words, the country got a judge who valued balance over purity and who watched with growing unease efforts to enlist the judiciary in the cause of conservative social movements. The court’s struggle over abortion provided a prime example.
Arriving just eight years after the court had declared a constitutional right to abortion in Roe v. Wade, Justice O’Connor was at first highly critical of that decision. Her first vote on abortion came in a 1983 case, Akron v. Akron Center for Reproductive Health, in which the majority struck down a municipal ordinance that restricted women’s access to abortion by imposing waiting periods and counseling requirements. Justice O’Connor’s dissenting opinion not only considered the restrictions to be valid, but contained a broadside attack on Roe v. Wade itself.
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She took particular issue with the court’s conclusion in Roe that the government’s ability to regulate the circumstances under which a woman could terminate a pregnancy depended on the stage of the pregnancy: No interference with a woman’s decision was permissible during the first trimester, but by the third trimester the government could limit abortions to those necessary to preserve a woman’s life and health. That framework, Justice O’Connor wrote in dissent in the 1983 case, “is clearly on a collision course with itself” as medical science advanced and “the point of viability is moved further back toward conception.”
Six years later, when the court’s continued adherence to Roe v. Wade appeared to be directly at issue in the 1989 case of Webster v. Reproductive Health Services, medical organizations made it a point to file briefs, plainly seeking Justice O’Connor’s attention, to explain that for the foreseeable future, an “anatomic threshold” of fetal lung development would prevent the survival of babies born before the beginning of the third trimester. Justice O’Connor never responded directly, nor did she ever again mention the “collision course.”
Pressed in the Webster case by Chief Justice Rehnquist to provide a fifth vote that would effectively overturn Roe v. Wade, Justice O’Connor held back. This case did not call for overturning Roe, she wrote in her separate opinion. If such a case did arrive, “there will be time enough to re-examine Roe,” she said, adding: “And to do so carefully.”
Three years later, Planned Parenthood v. Casey appeared to be such a case. But Justice O’Connor and two other Republican-appointed justices, Justices Kennedy and David H. Souter, defied expectations by issuing an unusual jointly written opinion that reaffirmed the “core” of the 1973 precedent.
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The three said that while they might not have joined the original Roe majority had they been on the court in 1973, to overturn the precedent in the face of current political pressure would cause “both profound and unnecessary damage to the court’s legitimacy, and to the nation’s commitment to the rule of law.” With Justices John Paul Stevens and Harry A. Blackmun providing the fourth and fifth votes, the constitutional right to abortion was preserved for another generation, until June 2022, when a court reshaped by the arrival of three justices appointed by President Donald J. Trump overturned both Roe and Casey and left states free to ban abortion once again.
Justice O’Connor may have best summed up her judicial philosophy in a dissenting opinion in a 1995 decision, Vernonia School District v. Acton.
The majority upheld a school district’s policy of subjecting student athletes to drug testing, even in the absence of any suspicion of wrongdoing. Dissenting, Justice O’Connor warned that judges should be wary of overreacting to generalizations; in her view, the majority had overreacted to the school district’s vivid description of the dangers that would follow if student athletes became drug-using role models.
“Some crises are quite real,” she wrote, but some are not. She added, “The only way for judges to mediate these conflicting impulses is to do what they should do anyway: stay close to the record in each case that appears before them, and make their judgments based on that alone.”
This case-by-case, fact-bound approach was not universally admired. “Justice O’Connor’s constitutional law decisions, taken as a whole, threatened rule-of-law values,” one law professor, Eric J. Segall of Georgia State University, wrote several months after her retirement.
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His point was not that the decisions were incorrect, but that “her reluctance to articulate principles governing cases, as well as her inconsistent treatment of legal doctrine, failed to provide enough stability, predictability, or transparency to differentiate legal rules from personal preferences.”
Justice O’Connor’s aversion to doctrinal rigidities and instinct for the middle ground had roots in her experience in elective office. During her political career, she had often invited Republican and Democratic leaders to her house for a home-cooked meal together, as a way of breaking down partisan barriers and encouraging compromise.
After her retirement, when the three-bedroom adobe brick ranch house in Paradise Valley, Ariz., in which she and her husband had raised their family, was slated for demolition by the new owners, civic leaders in the Phoenix area raised money to acquire it and move it to a park in nearby Tempe for use as a nonprofit dispute-resolution center. In 2019, the house was added to the National Register of Historic Places.
‘Cowgirl’ on the Court
Despite her decades as a member of the Washington elite, Justice O’Connor continued to think of herself as a person of the West. She called herself a cowgirl, a not inaccurate reference to her childhood on the Lazy B, the Day family’s huge cattle ranch in the high desert on the Arizona-New Mexico border. In 2002, she was inducted into the National Cowgirl Museum and Hall of Fame, in Fort Worth, Texas. At the ceremony, she referred to herself as “the first cowgirl to serve on the U.S. Supreme Court.”
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“How many of you have ever milked a cow?” Justice O’Connor asked a surprised audience at a judicial conference in Colorado Springs in 2006, at which she was being interviewed about her life and career. She looked pleased when perhaps one-third of the hundreds of judges and lawyers, most of them Westerners, raised their hands.
Her Western origins undoubtedly influenced her commitment to reclaiming a vital role for the states within the federal system. She was an indispensable partner in the federalism revival led by her fellow Arizonan, Chief Justice Rehnquist.
In a series of 5-to-4 rulings from the mid-1990s until the early 2000s, the court held that Congress had exceeded its authority in seeking to impose various obligations on state governments. In 1995, Justice O’Connor gave the chief justice her vote in the first decision in 60 years to invalidate a federal law on the grounds that it exceeded the power of Congress to regulate interstate commerce.
The decision, United States v. Lopez, struck down a federal law that made it a crime to carry a gun near a school. The regulated activity was not commerce, the chief justice wrote for the 5-to-4 majority, adding that it was up to the court to maintain the “distinction between what is truly national and what is truly local.”
Earlier, Justice O’Connor had written the majority opinion in New York v. United States, a 1992 decision overturning a federal law aimed at forcing states to take responsibility for disposing of their radioactive waste. The federal government could not “commandeer” the states to do its bidding, she wrote.
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Her concern for states’ rights also led her to take a relatively narrow view of the appropriate role for federal courts in reviewing state criminal convictions through prisoners’ petitions for writs of habeas corpus. And while she expressed concern about the fairness of capital punishment — telling a women’s law group in Minneapolis in 2001 that “if statistics are any indication, the system may well be allowing some innocent defendants to be executed” — she never adopted a position of categorical opposition to the death penalty.
The Rehnquist court’s federalism revolution was in full swing as one of the most disputed chapters in Justice O’Connor’s career unfolded: the Supreme Court’s resolution of the 2000 presidential election in Bush v. Gore.
At an election night party, Justice O’Connor was reported by Newsweek to have expressed dismay at the news that Vice President Al Gore seemed to be narrowly winning the race; her husband reportedly explained that the couple wanted Gov. George W. Bush to win the election so that they could retire to Arizona and a Republican president could fill her seat. Justice O’Connor later denied the account and had shown no evidence at the time of any interest in retiring.
In any event, given the favor with which the Supreme Court majority had usually viewed states’ rights, many were surprised when the court agreed to hear Mr. Bush’s challenge to the way Florida election officials and judges were untangling a statistical tie for the state’s 25 crucial electoral votes.
After the Florida Supreme Court ordered a statewide recount, and with the Republican candidate a hairbreadth ahead, Justice O’Connor and the four most conservative justices granted the Bush team’s request for a temporary stay. Three days later, late on the night of Dec. 12, the court issued its 5-to-4 opinion declaring that the recount, lacking a uniform standard for evaluating the contested ballots, violated the constitutional command of equal protection and could not proceed.
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The majority opinion was unsigned, although Justices O’Connor and Kennedy were said to be its principal authors. The others who joined it were Chief Justice Rehnquist and Justices Antonin Scalia and Clarence Thomas.
In 2013, seven years after she left the court, Justice O’Connor for the first time, at least in public, expressed doubt about the wisdom of the decision. “Maybe the court should have said, ‘We’re not going to take it, goodbye,’” she told The Chicago Tribune’s editorial board.
Her comment stopped short of a full-fledged repudiation of her own vote. But it certainly reflected a lingering regret about the legacy of the ruling, which, she said, “gave the court a less than perfect reputation.”
Evolving Views
Justice O’Connor publicly regretted only one vote in her career: The case of Republican Party of Minnesota v. White, in 2002. At the time, many states with elected judiciaries enforced an ethics rule that prohibited judicial candidates from taking public positions on political or legal issues. The purpose was to maintain impartiality. The case challenged the restriction as a violation of a candidate’s First Amendment right to free speech.
By a vote of 5 to 4, the court agreed. Justice Scalia’s majority opinion, which Justice O’Connor joined, said that “the First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what elections are about.”
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Justice O’Connor strongly opposed elections for judges, and she used a concurring opinion in this case to emphasize her position. In maintaining a system of judicial elections, she said, “the state has voluntarily taken on the risks to judicial bias” that the speech restriction was meant to prevent.
“If the state has a problem with judicial impartiality,” she continued, “it is largely one the state brought upon itself by continuing the practice of popularly electing judges.”
The decision set off a torrent of partisan advertising and other activity in judicial elections around the country. In 2006, in retirement, Justice O’Connor told a conference of state judges that she was afraid that she had made a mistake. Saying she was “increasingly concerned about the current climate of challenge to judicial independence,” she told the judges: “That case, I confess, does give me pause.”
She also revised her position on gay rights, but the change did not involve a direct repudiation of a prior position.
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In 1986, Justice O’Connor voted with the 5-to-4 majority in Bowers v. Hardwick, which rejected a challenge, under the Constitution’s due process clause, to a Georgia law that criminalized same-sex sodomy. The court overruled the Bowers decision in 2003, in Lawrence v. Texas, when a majority opinion by Justice Kennedy, based on a new analysis of the due process rights of gay men and lesbians, was joined by Justices Stevens, Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Of the five, only Justice Stevens had been on the court in 1986, and he had dissented in Bowers.
In a separate concurring opinion, Justice O’Connor said that rather than voting directly to overrule Bowers v. Hardwick, she was voting to strike down the Texas sodomy law on the alternative ground of equal protection. By making sodomy a crime for same-sex but not opposite-sex couples, she said, Texas “makes homosexuals unequal in the eyes of the law” and “brands all homosexuals as criminals.”
In the contexts of race and gender, Justice O’Connor’s impact on the court’s equal protection jurisprudence was deep. She wrote the majority opinion in a 1995 case, Adarand Constructors v. Pena, declaring unconstitutional a federal highway program that gave a preference to minority-owned contracting firms. The vote was 5 to 4.
It was the first case to hold that federal policies that favored members of minority groups over white people — even those adopted for the benign purpose of increasing minority opportunity — should be scrutinized as strictly as policies that favored white people. The “basic principle” of the Constitution’s guarantee of equal protection, Justice O’Connor wrote, was to “protect persons, not groups.”
In 1993, she wrote for the majority in another 5-to-4 opinion, Shaw v. Reno, which opened the door to constitutional challenges to election districts drawn for the overt purpose of facilitating the election of Black or Hispanic candidates. The North Carolina congressional district at issue was tortuously shaped in order to connect sufficient numbers of geographically scattered Black voters.
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“We believe that reapportionment is one area in which appearances do matter,” Justice O’Connor said, adding that the district in question “bears an uncomfortable resemblance to political apartheid.” Such districts send the “pernicious” message to elected officials that they are to represent only members of their own racial group, she said.
Shaw v. Reno was a bombshell that disrupted redistricting practices widely thought to be immune to judicial challenge. It led to a series of decisions in which the court eventually settled on a less categorical approach, recognizing that oddly shaped districts could also serve such neutral goals as protecting incumbents; race consciousness as a factor would not by itself invalidate a district.
Sandra and Ruth
Although Justice O’Connor was an ally of her more conservative colleagues on questions of racial discrimination, especially in her early years on the court, she left the conservatives behind in cases concerning discrimination on the basis of sex.
The question in a 1982 case, Mississippi University for Women v. Hogan, was whether a state nursing school could constitutionally exclude male students. It could not, Justice O’Connor wrote in a 5-to-4 majority opinion; the government could not make policy, she said, on the basis of “archaic and stereotypic notions” of the abilities and proper roles for men and women.
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It would be 11 years after that decision before Justice Ginsburg became the second woman to join the Supreme Court. A leading feminist theorist and advocate nominated by President Bill Clinton in 1993, Justice Ginsburg drew heavily on Justice O’Connor’s opinion in the Mississippi case for one of her own most important opinions: The 1996 decision in United States v. Virginia declaring unconstitutional the all-male admissions policy of a state-supported military college, Virginia Military Institute.
Justice O’Connor was visibly misty-eyed during the ceremony at which Justice Ginsburg took the judicial oath. “I can’t tell you how happy I was when she got to the court,” Justice O’Connor later told a group of female college basketball players. “It makes a night and day difference to have women on the bench.”
Although the two women neither looked nor sounded anything alike, male lawyers arguing before the court had surprising difficulty telling them apart. The frequent mix-ups, even by highly experienced members of the Supreme Court bar, inspired the two justices to appear at a reception for female judges sporting complementary T-shirts. “I’m Ruth, not Sandra,” read one shirt. “I’m Sandra, not Ruth,” read the other.
In her final years on the court, Justice O’Connor was actively engaged in its effort to define the rights of citizens and noncitizens caught up in the Bush administration’s “war on terror” after the attacks of Sept. 11, 2001. It was a role she had almost forecast for herself when, on Sept. 28, 2001, she visited New York City and became the first member of the court to speak publicly about what might lie ahead.
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It would be important, she said, “to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.” Speaking at the groundbreaking for a new building at New York University School of Law in Manhattan, she added: “And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases.”
Three years later, Justice O’Connor wrote for the court in Hamdi v. Rumsfeld, one of the first post-9/11 decisions, that “a state of war is not a blank check for the president,” and that “history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others.”
Horses and Chores
Sandra Day was born in El Paso on March 26, 1930, the eldest of three children of Harry and Ada Mae (Wilkey) Day. Her parents had eloped because Ada Mae’s urbane parents disapproved of the prospect of ranch life for their daughter.
The Lazy B, the cattle ranch where the Day family lived and worked, was huge (200,000 acres), isolated (the nearest real town was 35 miles away on bad roads) and not particularly prosperous. The adobe ranch house had neither running water nor electricity until Sandra was 7.
Her paternal grandfather, Henry Clay Day, established the ranch in 1880 after leaving Vermont in search of adventure. His early death deprived Sandra’s father of the chance to accept admission to Stanford University, an ambition that Harry Day transferred to his daughter.
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From an early age, Sandra rode horses and helped the ranch hands with the chores involved in tending 2,000 head of cattle.
In “Lazy B: Growing Up on a Cattle Ranch in the American Southwest” (2002), a memoir she wrote with her brother, Alan Day, Justice O’Connor recounted an experience she had as a young teenager. Her father and a crew were working in a remote corner of the ranch branding cattle. Her job was to bring the men their lunch. When the pickup she was driving got a flat tire, she struggled for an hour in the summer heat to loosen the rusty lug nuts and change the tire. “You’re late,” her father said when she showed up well past lunchtime. When she explained, he said: “You should have started earlier. You need to expect anything out here.”
She wrote: “I had expected a word of praise for changing the tire. But, to the contrary, I realized that only one thing was expected: an on-time lunch. No excuses accepted.”
It was a lesson she internalized to a striking degree.
When doctors told her she had breast cancer in 1988, Justice O’Connor underwent a mastectomy. She lost her hair to chemotherapy and wore a wig. She often looked exhausted, and rumors swirled that she would soon leave the court. But she never missed a day on the bench, and regained her hair and her health. Only six years later, speaking to a group of cancer survivors, did she acknowledge how hard it had been.
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Sandra’s parents sent her from the age of 6 to live with her maternal grandmother in El Paso during the school year, so she could get an education. There were lonely times, but she did well, skipped two grades and entered Stanford at 16. She graduated in 1950 and earned her law degree two years later.
During her second year of law school, her steady date was a fellow student named William Rehnquist. They had drifted apart by the time he graduated and moved to Washington, to begin a clerkship at the Supreme Court. In researching his 2019 biography of Justice O’Connor, “First,” the author Evan Thomas found letters that she had saved from her old beau, inviting her to visit him in Washington and finally proposing marriage. “I know I can never be happy without you,” he wrote. But by then she was dating another fellow student, Mr. O’Connor; they married in 1952.
Rebuffed by private law firms after graduation, she turned to the public sector and worked briefly as a deputy county attorney in San Mateo, Calif. She then followed her husband to Germany, where he was stationed with the Army’s Judge Advocate General’s Corps; she worked as a civilian lawyer for the Quartermaster Corps.
After three years, with Mr. O’Connor’s Army service concluded, the young couple settled in Phoenix to start a family and begin a career; she made it clear that she intended to combine both. Their three sons, Scott, Brian and Jay, were born between 1957 and 1962.
She is survived by her sons, six grandchildren and her brother, Alan.
Republican Politics
While her husband entered a big-firm law practice in fast-growing Phoenix, Ms. O’Connor opened a suburban law office of her own, working part time while beginning a busy extracurricular career of civil and political engagement. She served on many volunteer boards and commissions and became involved in Republican politics at the precinct level.
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In 1965, she returned to full-time work as an assistant state attorney general. Gov. Jack Williams, a Republican, appointed her to an interim vacancy in the State Senate in 1969. She won two subsequent elections, becoming majority leader in 1972. In 1974, she ran successfully for a seat on the Maricopa County Superior Court, the local trial court.
In 1978, Republican leaders urged Ms. O’Connor to run for governor against the Democratic incumbent, Bruce Babbitt. She declined, and the next year, Governor Babbitt named her to the state’s intermediate appeals court.
On the spectrum of Arizona Republican politics, Sandra O’Connor was a moderate. She supported the proposed Equal Rights Amendment to the Constitution and did not take part in the anti-abortion activism that was becoming visible in the state. The only vocal opposition to her Supreme Court nomination, in fact, came from anti-abortion organizations, including the National Right to Life Committee.
But the promised opposition never coalesced, and her three days of testimony before the Senate Judiciary Committee in September 1981 were more coronation than confrontation.
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In her opening statement, the nominee said that while she was honored to be the first woman named to the court, “I happily share the honor with millions of American women of yesterday and today whose abilities and conduct have given me this opportunity for service.”
Her endorsement by the American Bar Association was a tepid “qualified,” with a report noting that her experience as a practicing lawyer and judge “has not been as extensive or challenging as that of some other persons who might be available for appointment.”
During the hearing, she declined to offer legal opinions. Asked her views on abortion, she called the procedure “offensive” and “repugnant,” and said that “it is something in which I would not engage.” However, she added that at the age of 51, she would not be faced with an unintended pregnancy, “so perhaps it is easy for me to speak.” She said she felt “an obligation to recognize that others have different views.”
The Senate approved her nomination on Sept. 21, 1981, by a vote of 99 to 0. Four days later, with President Reagan and the first lady, Nancy Reagan, in attendance in the crowded courtroom, Justice O’Connor took the oath of office as the nation’s 102nd Supreme Court justice.
Her announcement nearly 24 years later, on July 1, 2005, that she would retire “upon the nomination and confirmation of my successor,” shattered the quiet of a July 4 weekend. The country had been anticipating a retirement announcement from Chief Justice Rehnquist, who nine months earlier had been found to have a fatal form of thyroid cancer and who had missed much of the term that had just concluded.
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In Justice O’Connor’s case, the reason for leaving the court was not her own health — she was a vigorous 75 — but her husband’s. Few people knew that Mr. O’Connor had been diagnosed with Alzheimer’s disease 15 years earlier. For years after that, the couple carried on a seemingly normal life. But by the early 2000s, Mr. O’Connor could not be left alone in their apartment. Justice O’Connor began bringing him to her chambers, where he would spend the day sitting quietly in her inner office.
Worried about creating two simultaneous vacancies on the court, Justice O’Connor in late June asked her old friend the chief justice, who had not confided his plans to his colleagues, whether he was going to resign. If his answer was yes, she would stay another year. But he told her that he was responding well to treatment and that his doctors anticipated that he could serve another term. Justice O’Connor then announced her own retirement plan. Chief Justice Rehnquist’s condition declined precipitously shortly after that, and he died over the Labor Day weekend at the age of 80.
Justice O’Connor’s successor, Justice Alito, was not confirmed until Jan. 31, 2006, so she remained on the court another half year. Her plan to care for her husband at home quickly proved unworkable, and later that year he entered a nursing home in Phoenix, near two of their sons.
The circumstances of Justice O’Connor’s departure were both poignant and singular. Numerous Supreme Court justices have confronted a spouse’s serious illness — Chief Justice Rehnquist’s wife, Nan, died of cancer in 1991 after a long struggle — but none of the men ever left the court for that reason. If Justice O’Connor, famous for not looking back, ever regretted her decision, she never said so publicly.
Her announcement of her dementia diagnosis in 2018 was, characteristically, unvarnished and to the point. She reiterated her support for a renewal of civics education. While “I can no longer help lead this cause,” she said, she expressed hope that new leaders would “make civics learning and civic engagement a reality for all.”
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