Everything she did made history: Sandra Day O鈥機onnor鈥檚 legacy
| Austin, Texas
Although the United States was founded, as John Adams once said, to be 鈥渁 government of laws and not of men,鈥� for more than two centuries it was almost exclusively men who wrote and interpreted those laws.
That was until Sandra Day O鈥機onnor, raised on a remote cattle ranch in the rural Southwest, joined the United States Supreme Court.
Beyond shattering that glass ceiling, Justice O鈥機onnor 鈥� who died Friday 鈥� left an indelible mark on American law and American society. For a time considered the most powerful woman in the country, she used her cautious and pragmatic approach to cases to shape the law on major issues ranging from abortion and affirmative action to executive branch war powers and the 2000 presidential election.
Why We Wrote This
Sandra Day O鈥機onnor鈥檚 historic appointment as the first female justice of the U.S. Supreme Court opened doors to women. She brought compassion and pragmatism to a trailblazing career.
She was a trailblazer in more ways than one. Before she became a justice, she was the first woman to hold a leadership position in a state legislature, as the majority leader in the Arizona Senate. And after she retired from the high court she served as a leading advocate for civics education and judicial independence around the world. Tactfully 鈥� and sometimes bluntly 鈥� she asserted herself in the male-dominated realms of law and politics, paving the way for generations of women after her.
There have been five women justices on the Supreme Court since Justice O鈥機onnor鈥檚 confirmation in 1981, but she can also be viewed as the end of an era 鈥� the last generation before the high court became dominated by Ivy League and federal appeals court graduates, a conservative but unpredictable jurist who thought always about the practical effects of the law.
鈥淛ustice O鈥機onnor has a strong claim to be among the small handful of the most pivotal justices in the modern Supreme Court鈥檚 history,鈥� says Justin Driver, a former clerk.
Aerobics and 鈥渃onsequentialism鈥�
鈥淛ustice 鈥� At Last,鈥� read the cover of Time magazine after her nomination to the Supreme Court. The U.S. Senate issued more press credentials for her confirmation hearing than for the Watergate hearings 鈥� and confirmed her with a 99-0 vote. Everything that followed that term was 鈥渁stounding,鈥� says Ruth McGregor, who clerked for Justice O鈥機onnor that year.
鈥淭here were tears in the eyes of a lot of law clerks, including me, when she walked out from the curtain and took her place at the bench,鈥� she adds. 鈥淭hat was such an important time for women in the law.鈥�
Everything she did made history. The first woman ever to ask a question at oral argument. (The attorney talked over her.) The first woman ever to write an opinion. The first woman ever to write a dissent. Reporters noted every word and action, watched her drive to the court, watched her go out to dinner with her husband, John. Amid it all, she had to prove herself to her high court colleagues.
鈥淪he handled this all with a great deal of grace and with a great deal of calmness,鈥� says Ms. McGregor. 鈥淚t didn鈥檛 seem that she was under stress, but I think she must have been.鈥�
One of her earliest impacts at the high court was to organize a morning aerobics class. The 8 a.m. sessions 鈥� for women only 鈥� quickly attracted members and custom T-shirts. (鈥淓xercise Your Constitution, Motion Sustained鈥�; 鈥淟oosen Up With The Supremes.鈥�)
Justice O鈥機onnor had little experience in constitutional law, having worked as a county court and state appeals court judge. But that experience in the lower reaches of the American judiciary gave her a keen interest in the practical effects the law had on ordinary people.
She disapproved of grand unifying theories of legal interpretation 鈥� such as originalism, a now prominent philosophy that the Constitution should be interpreted as its 18th century authors would have intended. They gave too little weight to the specific facts and context of cases. In 鈥淔irst,鈥� a biography of Justice O鈥機onnor, author Evan Thomas describes her judicial philosophy as 鈥渃onsequentialism.鈥�
鈥淪he was very fact-based, she cared about the record, about the practical consequences鈥� of a decision, says Mr. Thomas. 鈥淪he was sympathetic to cases involving women and children.鈥�
鈥淓specially on the tough social issues like affirmative action and abortion,鈥� he adds, she favored 鈥渋nching the law forward, trying not to get too far ahead or behind of public opinion.鈥�
鈥淭he O鈥機onnor Court鈥� rises
She had been nominated as part of a long-term response to what conservatives viewed as the liberal excesses of the Warren Court. Justice Harry Blackmun, in particular, feared that she would be the fifth vote to overturn his opinion in Roe v. Wade, the 1973 decision legalizing abortion.
Justice O鈥機onnor instead advocated for preserving Roe while allowing states to restrict abortion access unless it placed an 鈥渦ndue burden鈥� on the mother.聽
In 1992, the high court heard a challenge to a Pennsylvania law requiring a woman seeking an abortion to first get consent from her parents and inform her husband, among other requirements.
Justice O鈥機onnor met secretly with moderate Justices David Souter and Anthony Kennedy to craft an opinion preserving most of Roe. Planned Parenthood v. Casey became one of the major precedents upholding abortion rights in America.
鈥淚 think Justice Kennedy trusted both her instinct on what would happen to the integrity of the court if they had gone so far as to overrule Roe completely, and also her notion about what would happen to women,鈥� says Kathryn Kolbert, who argued against the Pennsylvania law before the Supreme Court. The spousal notice requirement, in particular, troubled the former state court judge.
鈥淪he had a really firm understanding of what women in abusive relationships go through,鈥� adds Ms. Kolbert. 鈥淚 didn鈥檛 always agree with every opinion she wrote, but I thought she was an incredibly conscientious justice, she was incredibly empathetic, she understood and looked to how laws affected real people.鈥�
The Casey decision was part of a period where Justice O鈥機onnor鈥檚 vote was so decisive the high court became known as 鈥渢he O鈥機onnor Court.鈥� The moniker was 鈥渁n exaggeration,鈥� the justice said in 2011, though in 24 years on the bench, she was in the majority in 330 5-4 cases.
鈥淪he had a keen instinct about where the middle was, and what the country could stand,鈥� said Mr. Thomas in a 2018 .
Above all, Justice O鈥機onnor appreciated the need for the Supreme Court to be pragmatic and fix problems that were affecting the country.
That approach didn鈥檛 always pay off. When a recount in Florida held up the 2000 presidential election between George W. Bush and Al Gore, she was one of five justices 鈥� all nominated by Republican presidents 鈥� who voted to hear the case and, ultimately, stop a recount and hand the White House to President Bush. It was one of her few regrets in her career.
Instead of fixing a problem, 鈥減robably the Supreme Court added to the problem at the end of the day,鈥� she said in a 2013 interview with .
A whip-smart cowgirl
Growing up on the Lazy B Ranch, Sandra Day started to read at age 4 and learned to brand a calf and fire a rifle before her 10th birthday. Her childhood friends were the adult cowboys she would join on roundups.
Most importantly, the harsh realities of Depression-era ranch life taught her the values of selflessness and self-reliance, and forged a relentless work ethic she carried her entire life.
Tasked one blazing hot morning with bringing lunch to her father and the cowboys on a roundup, she blew a tire on the drive out and spent over an hour changing it. When she finally reached them, her father didn鈥檛 sympathize. 鈥淵ou should have started earlier,鈥� he told her. 鈥淵ou need to expect anything out here.鈥�
That became the message to generations of O鈥機onnor law clerks: no excuses, the work has to get done no matter what.
鈥淚 assume you鈥檙e calling about secretarial work?鈥�
In the spring of 1952, two promising young students graduated from Stanford University Law School. William Rehnquist and Sandra Day knew each other well 鈥� they had dated for a while, and he had even proposed to her.
She said no, but her former beau landed on his feet. Graduating first in his class, he left for Washington, D.C. to clerk for Justice Robert Jackson and would go on to serve as an associate justice and chief justice of the Supreme Court for 36 years.
Sandra Day graduated third in her class. The first woman to edit the Stanford Law Review, she called 40 law firms looking for a job. Only one gave her an interview: the Los Angeles firm Gibson, Dunn & Crutcher. 鈥淲ell Miss Day,鈥� she recalled the firm鈥檚 interviewer asking, 鈥渉ow well can you type?鈥�
A few years later, her husband took a job at a law firm in Phoenix, Arizona. Again, no law firms were interested in hiring a woman. She opened a small law office in a suburban shopping center with another lawyer from Massachusetts.
Did it ever make her 鈥� third in her class at Stanford, first woman on law review 鈥� angry?
鈥淣ever anger, but, 鈥楾hings will change,鈥� she said. 鈥楾hings will change,鈥欌�� recalls Gay Wray, a friend of the justice since her law practice days. 鈥淭hat sort of thing was never going to keep her down.鈥�
It was in those years that she became a mother, giving birth to three sons, and became involved in state politics. She soon took a leading role in advancing womens鈥� rights 鈥� albeit incrementally 鈥� as a state lawmaker in Arizona.
Less than two months in, she helped pass legislation abolishing a state law limiting women to an eight-hour work day, but her record on women鈥檚 rights remained mixed. Most notably, she let the Equal Rights Amendment 鈥� a constitutional amendment that would have guaranteed equal legal rights for all Americans regardless of sex 鈥� die in committee, worried that it didn鈥檛 have the votes to pass. Arizona was one of six states to not ratify the amendment before a congressionally imposed 1979 deadline.
鈥淲ould I call her a feminist? No,鈥� says Ms. Wray. 鈥淪he was definitely for furtherment of women鈥檚 rights, but she would not knock down a man to do that. It was the best person for the job, that was always her thought.鈥�
She later ran for, and won, a seat on the Maricopa County Superior Court 鈥� although she criticized the popular election of judges her entire career, and was one of the last popularly elected judges in the county.聽
By then, the O鈥機onnors had become one of the most influential and popular families in Arizona politics. After Bruce Babbitt, a Democrat, became governor in 1978, a movement to draft her to challenge him in 1982 started to build. In 1979, however, a vacancy appeared on the state court of appeals, and Mr. Babbitt selected Justice O鈥機onnor.聽
She didn鈥檛 serve on the Arizona Court of Appeals for long. Ronald Reagan won the presidency in 1980 having promised to nominate the first woman justice, and Justice Potter Stewart soon retired. Before long, the new Arizona appeals court judge got a call from William French Smith, President Reagan鈥檚 attorney general, about an interview for a 鈥渇ederal position.鈥� Mr. Smith had been a partner at Gibson, Dunn & Crutcher, the Los Angeles law firm that had asked her three decades earlier how well she could type.
鈥淚 assume you鈥檙e calling about secretarial work?鈥� .
鈥淎 true love story鈥�
The constant in her trailblazing path to the Supreme Court was John O鈥機onnor. Their marriage had been one of mutual, unwavering support and sacrifice. She moved to Germany, then Phoenix, for the sake of his career, and he had moved to Washington for hers. In 2000 he was diagnosed with dementia and she cared for him 鈥� on top of all her work on the court 鈥� until 2006, when his condition worsened.
She had been contemplating retirement from the high court since 1996, Mr. Thomas wrote in his biography, but didn鈥檛 want a Democrat to nominate her successor. With George W. Bush in the White House, she decided to step down in 2006. Within six months of her retirement, however, her husband could no longer recognize her.聽
鈥淗e sacrificed for her and then she sacrificed for him. It鈥檚 a great love story,鈥� says Mr. Thomas.
After he passed away in 2009 she devoted herself to traveling the U.S. and the world, advocating for judicial independence and civics education. iCivics, a nonprofit she founded in 2009 to transform and promote civics education in schools, still operates today.
She also watched with unease as her replacement, Justice Samuel Alito, helped an increasingly conservative court undo major aspects of her legacy, including upholding a ban on so-called partial-birth abortions, relaxing rules on campaign spending, and chipping away at affirmative action in schools. The court eventually overturned Roe last year, and affirmative action this past summer.
鈥淪he found it painful to watch some of her major legacies be eroded,鈥� says Professor Driver, who clerked for her that first year after her retirement.
Her steadfast belief in treating each case in isolation, focusing on its specific facts and context and eschewing a broad judicial philosophy, disenchanted her with movement conservatives who were growing in number and influence.
When Donald Trump entered the White House in 2016 having promised to nominate reliable conservatives to the federal judiciary, the Supreme Court and lower courts shifted further to the right, most notably with the confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The watchword in the Trump White House at the time 鈥� according to Ruth Marcus, author of a book on Justice Kavanaugh鈥檚 bitter confirmation fight 鈥� was 鈥渘o more O鈥機onnors.鈥�
Today, Justice O鈥機onnor鈥檚 legacy is visible across her home state. The Arizona State University law school bears her name, as does the federal courthouse in Phoenix. Sept. 25, the day she was sworn into the Supreme Court, has been celebrated as Sandra Day O鈥機onnor Day in Arizona since 2018.
She withdrew from public life that year after being diagnosed with dementia. Friends and colleagues would say there could only ever be one Sandra Day O鈥機onnor.
鈥淪he made it easier for people to imagine women as judges, or full professors, or deans of law schools,鈥� says Ms. McGregor. 鈥淥nce you have someone as a Supreme Court justice, doing the hardest job in law, you can鈥檛 really argue women can鈥檛 do something [else] in the law.鈥�
