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Washington Post Book World
Friday, January 6th, 2006


 

Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice

by Joan Biskupic

Justice in the Balance

A review by Kathleen M. Sullivan

Justice Sandra Day O'Connor was supposed to be enjoying this Christmas as her first in retirement after an illustrious quarter-century of service on the nation's highest court. But with John G. Roberts Jr. now chief justice, Harriet Miers still White House counsel and Samuel A. Alito Jr. awaiting Senate hearings in January, O'Connor continues to sit on the court, asking her usual precise and well-prepared questions of advocates, writing her usual clear and straightforward opinions and, in short, performing one last coda to one of the most remarkable judicial performances in the history of the Supreme Court.

With celebrations, tributes and toasts to O'Connor on indefinite hold, Joan Biskupic's biography is a most welcome prelude. This highly readable and engaging work is not an authorized biography; O'Connor is among the justices most committed to keeping the court's inner deliberations secret and has opposed the early release of justices' papers to the public. Unable to rely on interviews with the justice herself, Biskupic, a lawyer who covers the Supreme Court for USA Today (and used to do so for this newspaper), has painstakingly researched her subject by interviewing family members and former clerks and mining the personal papers of other justices, notably those of Thurgood Marshall and Harry A. Blackmun.

What emerges is a powerful and persuasive account of O'Connor as the most astute political leader on the court since Justice William J. Brennan, the elfin Irishman from New Jersey who was the intellectual fulcrum of the Warren Court in the 1960s. Brennan famously quipped that the most important skill for any justice on the nine-member court was "counting to five." O'Connor, Biskupic tells us, has been a genius at this kind of math for more than two decades.

The origins of O'Connor's extraordinary tenure are told briskly. The childhood of the only Supreme Court justice ever inducted into the Cowgirl Hall of Fame was spent largely on the Lazy B Ranch in Arizona, a place where women had presumptive equality because there was so much work to do. Her father was taciturn and demanding; when a teenage Sandra Day had a flat tire while driving lunch to the ranch hands, she fixed it herself and got there anyway -- only to be reprimanded by him for being late. Years later, when reporters sought comment on his daughter's ascension to the court, he continued to pore over his ranch ledgers and told them, "I'm Harry Day, and I'm busy."

O'Connor's big academic break was attending Stanford University, as her father had wished to do. She was a superb student, entering at age 16, finishing a bachelor's degree and a law degree in a mere six years and graduating near the top of the same Stanford Law School class of 1952 as the future Chief Justice Rehnquist. She was one of only a handful of women but a robust and fearless participant in class discussions. Over cite-checking for the Stanford Law Review, she met and fell in love with her fellow law student John O'Connor, whom she soon married.

While Rehnquist rocketed to a Supreme Court clerkship after Stanford, his future colleague on the court faced blunt sex discrimination at the bar; law firms, O'Connor later recounted, would consider her as a secretary but not a lawyer, with one even asking her if she typed. O'Connor's response was resourcefulness and resilience. She talked her way into a job in a local prosecutor's office. She worked as a government lawyer when her husband was stationed in Germany serving in the Judge Advocate General Corps. She opened a storefront law office in a shopping center when she and her husband settled back in Phoenix. Biskupic repeatedly cites her "no-nonsense, no-pity" mantra: "That's the way it is. ... Deal with it."

Biskupic gives a fascinating account of O'Connor's political astuteness; she was appointed and re-elected as an Arizona state senator, then rose to become majority leader of that body. Later, she became a judge on an Arizona trial court and an intermediate appeals court. Diligent, alert, energetic and adept at politicking, she was a master of the telephone call and the handwritten note, and she helped organize everything from Republican presidential campaigns in Arizona to her classmate Rehnquist's confirmation to the Supreme Court.

But O'Connor was also traditionalist enough -- she took five years off to raise her three sons -- to impress Republican Party strategists as their kind of "sharp gal." Crucially, she backed off from stances that might have been too overtly feminist; Biskupic shows how, as a senator, she initially supported the Equal Rights Amendment but did not press the issue. She similarly retreated from an early vote for a 1970 bill to decriminalize abortion, mentioning her personal abhorrence for the procedure in her brief job interview with President Reagan.

In short, she threaded the needle, outshining male counterparts while remaining within conventional gender expectations. Friends invited her, with unwitting prescience, to a fishing expedition with Chief Justice Warren E. Burger (who would later famously escort her down the Supreme Court steps as his colleague) because "Sandra can discuss anything: from changing diapers to world events."

The same stealth brilliance characterized O'Connor's rise to leadership on the court, as Biskupic tells it. In her early years, Chief Justice Burger and the then-regnant liberal justices assigned her few major opinions, except one finding sex discrimination in a male student's exclusion from an all-female nursing school. Biskupic reveals Justice Brennan's surprising snippiness toward his new colleague, who he feared would become a reliable vote for law-and-order positions that would undo the Warren Court's rights revolution. And indeed, O'Connor, together with her close colleague Rehnquist, did favor states' rights positions -- which reflected their experience of the importance of state government in the West but clashed with the Warren Court's view of the federal government as the chief fountainhead of social and economic policy and the chief guardian of constitutional rights. But O'Connor's instincts on the court, as in the legislature, were centrist, and her chief mentor and friend in the early years was Justice Lewis F. Powell Jr., the moderate Virginian who had long provided a crucial swing vote.

Biskupic identifies O'Connor's successful battle with breast cancer in 1988 as a turning point. She endured surgery and chemotherapy without missing a single court sitting. She fended off reporters' prying prurience with an exasperated statement: "I am not sick. I am not bored. I am not resigning." And she started crafting 5-to-4 majorities on issues from abortion to affirmative action to corporate liability to the separation of church and state. "Now she was exercising more than the swing vote," Biskupic writes. "Nearly twenty-five years younger than Brennan and an emboldened survivor of breast cancer, O'Connor had figured out how to line up votes as effectively as Brennan could. ... She had bested the men at their own game."

Biskupic thus convincingly counters accounts describing O'Connor's use of the swing vote on the court as somehow capricious or indecisive -- accounts that sometimes smack of sexual stereotyping. Rather, Biskupic portrays O'Connor as socially astute, intellectually muscular and entirely deliberate in leading the court toward centrist positions: on abortion, permit but discourage; on church and state, acknowledge but do not endorse religion; on affirmative action, use race as a factor in admissions but not racial quotas. Such centrist positions overwhelmingly track public opinion while infuriating the far-right factions who have thought the Supreme Court should be their prize since Reagan won in 1980. Biskupic shows, however, that such positions were not just political compromises but expressions of a kind of constitutional common law. Other conservative justices before O'Connor had also adapted the Constitution's original principles to new circumstances by articulating similar tests. O'Connor, as Biskupic portrays her, was not just a swing vote operating case by case but the author of constitutional standards that would govern future cases: Abortion regulations may not impose an "undue burden" on women seeking the procedure, religious symbols may not appear to the "reasonable observer" to endorse a faith, the federal government may not "commandeer" state officials and so on.

At the book's close, Biskupic quotes the justice's own characteristically matter-of-fact words: "There's only nine of us, so everyone has a very key vote. It's not a question about gaining power or influence. We try to persuade by the strength of the argument in a particular case." Yet O'Connor's own persuasive power has made her the most influential woman in American history.

Kathleen M. Sullivan is Stanley Morrison Professor of Law at Stanford University and a former dean of its law school.
(c) 2005, Washington Post Book World Service/Washington Post Writers Group


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