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Sandra Day O’Connor, pathbreaking woman on Supreme Court, dies at 93

By Fred Barbash Washington Post

Sandra Day O’Connor, the first female U.S. Supreme Court justice, whose independence on a court that was often ideologically divided made her the pivotal vote in numerous closely contested cases and one of the most powerful women of her era, died Dec. 1 in Phoenix. She was 93.

The cause was complications from advanced dementia, probably Alzheimer’s disease, and a respiratory illness, according to an announcement by the court. Justice O’Connor had said in October 2018 that she had dementia and was exiting public life.

In her nearly quarter-century as a justice, sworn in on Sept. 25, 1981, after being appointed by then-President Ronald Reagan, to her retirement on Jan. 31, 2006, to care for her husband, who had Alzheimer’s, she tried to avoid what she called “giant steps you’ll live to regret.”

She rejected the idea of eliminating the right to abortion, for example, in part because “an entire generation has come of age” relying on it, she wrote. Instead, she co-wrote the principal opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), setting a new standard for judging abortion cases but reaffirming the core holding of Roe v. Wade, which legalized abortion in 1973.

The justice appointed to replace O’Connor, Samuel A. Alito Jr., would in 2022 excoriate her decision for having “enflamed debate and deepened division,” in his majority opinion wiping out abortion rights.

Reagan appointed O’Connor as a conservative. But she would not qualify for the right flank on today’s court. She wrote an opinion justifying race-conscious admissions in law schools. She supported, for the most part, traditional boundaries between church and state. And while usually deferential to the prerogatives of the states, O’Connor had little tolerance for state laws that trampled on equality.

A Texas law banning sodomy, she wrote as she concurred in a 2003 ruling overturning it, was “directed toward gay persons as a class.” A law based on “moral disapproval of that class … runs contrary to the values” of the Constitution, she wrote in Lawrence v. Texas.

She never went far enough in any area of the law to fully satisfy either conservatives or liberals of the day, Republicans or Democrats. And many Democrats never forgave her for siding with George W. Bush in Bush v. Gore, which settled the outcome of the 2000 presidential election. After her retirement, she voiced misgivings that the court had gotten involved in the case.

Her 2002 memoir, “Lazy B: Growing Up on a Cattle Ranch in the American Southwest,” was a bestseller. In it, she described a youth unlike that of any of her contemporary Supreme Court justices, roping calves and fixing trucks along with doing homework on a vast southwestern ranch. She recalled awakening one morning to see “an enormous ball of fire in the distance” and a “dark cloud” forming and rising in the sky. Only later did she learn she had witnessed the dawn of a new age: the first atomic bomb test in Alamogordo, New Mexico, on July 16, 1945.

O’Connor arrived at the court from Arizona with no overarching philosophy or agenda, no affiliation with a movement or cause and no previous position in anyone’s administration in Washington. She had served as a state legislator in Arizona and as a judge. Her name had appeared on few lists of potential nominees put forth in the media or by advocacy groups.

She was not well-known nationally, except eventually as the first female appointee, a break from two centuries of nothing but men, a distinction that made her instantly a historic figure, her face recognized across the country, her personal story symbolic of the experiences of professional women.

Despite a stellar law school record, she described being offered only secretarial jobs at law firms. When Chief Justice Warren E. Burger escorted O’Connor down the steps of the court after her investiture, he said to the reporters assembled below: “You’ve never seen me with a better-looking justice.”

If there were only one person who made all the decisions on the most important issues at the Supreme Court, Justice Elena Kagan said of her in a 2017 tribute, you would want it to be Justice O’Connor. “If it were Justice O’Connor, it would all turn out all right.”

She cast her often-decisive vote “in a way that demonstrated extraordinary wisdom,” Kagan said, “that understood something about this nation, about the people who inhabit it, what they would and would not stand for, about what their best values were, and she did this over and over again. And really we are such a better nation because of that.”

She worked to bring clarity to years of confusing church-state law on such volatile issues as state-supported school prayer and religious displays on state property. But she did so unpredictably, providing the fifth vote to permit a town-sponsored Nativity scene in Lynch v. Donnelly in 1984 but finding government displays of the Ten Commandments to be unconstitutional in McCreary County v. ACLU in 2005.

While known as a centrist on the court then, her positions and approach would probably place her on the liberal wing of today’s conservative-dominated court. Indeed, many of the decisions she supported became prime targets of the right and the court’s current majority, including affirmative action in college admissions.

And after her retirement, she spoke critically of the court’s direction publicly and privately. “Everything I stood for is being undone,” she told a friend, according to O’Connor biographer Evan Thomas.

Hers was a vote that litigants had to have, but could never take for granted. “O’Connor is in control,” constitutional law professor Erwin Chemerinsky, now dean of Berkeley Law, wrote of her in 2001. “In virtually every area of constitutional law, her key fifth vote determines what will be the majority’s position and what will be the dissent. Lawyers who argue and write briefs to the Court know they are, for all practical purposes, arguing to an audience of one.”

In her first year on the court, after a heated debate in the justice’s private conference, her old friend and law school classmate Justice William H. Rehnquist sent her a prescient note, according to O’Connor biographer Joan Biskupic: “I am sure you realize,” it said, “that you are ‘in the middle’ where you will probably find yourself on more than one occasion.” (Rehnquist had proposed marriage to her after law school, according to biographer Thomas.)

The greatest difference between Justice O’Connor and all the justices before her was the obvious one: She was a she, not a he. The traditional prefix “Mr. Justice” was consigned to the scrapheap of court history.

She grew up in a man’s world, a woman on her father’s ranch full of men. She attended law school in a man’s world at Stanford University, finishing near the top of her class but unable to get a job in a top law firm. She had felt the sting of frustrated ambition, gender discrimination and, late in her tenure, in 1988, the pain of breast cancer.

She had been “treated as an ‘other,’ ” the late Walter Dellinger, a former acting U.S. solicitor general, said in a 2005 Duke University law school panel discussion on Justice O’Connor’s legacy. “And that gave her a sensitivity and understanding about the role of outsiders,” he said, that he and many others saw in much of her work on the nation’s highest court.

She understood, as she wrote later, that her appointment “opened many doors to young women all across the country,” and proudly recounted a letter she received from a young woman who wrote that because of Justice O’Connor’s elevation, “people will find it increasingly difficult to deny” that women possess the same “determination, judiciousness, skill and professionalism” as men.

She came to identify with another “first” on the court with whom her tenure overlapped, Justice Thurgood Marshall. She readily acknowledged that her experiences with prejudice as a professional woman paled by comparison with the life-threatening challenges Marshall faced as a civil rights lawyer during the Jim Crow era.

Still, she wrote in her 2002 book “The Majesty of the Law: Reflections of a Supreme Court Justice”: “I have experienced gender discrimination enough – such as when law firms would hire me, a ‘lady lawyer,’ only as a legal secretary – to understand how one could seek to minimize interaction with those who are intolerant of difference. That Justice Marshall never hid from prejudice but thrust himself instead into its midst has been both an encouragement and a challenge to me.”

Although she had not been an activist for women’s rights, like the late Justice Ruth Bader Ginsburg, who in 1993 would become the second woman on the court, once Justice O’Connor assumed the mantle of “the first woman,” she wore it with pride, accepting the outsize attention the distinction brought her.

She became a popular public figure in constant demand as a speaker. While other justices, whose work is never televised, remained largely faceless figures to the public, O’Connor was recognized on the streets and in airports as a true celebrity.

Life lessons on a ranch

Sandra Day was born in El Paso, Texas, on March 26, 1930, and she was the first child of Harry Day and the former Ada Mae Wilkey. Her father had come west from Vermont in search of adventure and the money to be had in cattle ranching. Ada Mae was the cultured daughter of an El Paso merchant and banker.

The Days ran more than 2,000 head of cattle on 198,000 acres in southeastern Arizona and southwestern New Mexico where, until Sandra was 7, she lived in a four-bedroom adobe house without running water or electricity. Later she would write with pride of the self-sufficiency her life bred and how it strengthened her bond with her father.

Her father instilled in her a work ethic and a meticulousness that also characterized her work habits at the court.

“Growing up on a ranch, you’re assigned certain tasks,” she said in a 2013 interview with the Harvard Business Review, “and you’d darned well better do them and do them right. Everyone was expected to help and to do their best.

“I’ll tell you a little story. Once, when I was a teenager, the workers were rounding up the cattle in an area very far from the ranch headquarters. We had to get lunch to them, and the roundup cook for some reason wasn’t going to be there. So I got up extremely early, my mother and I fixed the lunch, and I got in a pickup truck alone to drive to the place where they were. I was going along, when all of a sudden I got a flat tire.

“So I stopped the truck and got out,” she said. “I knew how to jack a car up – I’d seen it done – so I found the jack and did that. I worked so hard. Then I got the flat tire off and the spare tire on, put the lug bolts in tight, and got everything working again. But it took me a long time.

“By the time I got to the men, it was several hours past lunch. I could see my father in the distance – I recognized him by his hat – and I was sure he was mad at me because I wasn’t on time. When I finally got to him, he said, ‘You’re late.’ I said, ‘Yes, I’m really sorry, but I had a flat tire, and I had to change it. I’m lucky to be here at all.’ And he said, ‘Well, you should have started a lot earlier.’ That was the attitude on the ranch. You had to anticipate difficulties, and when you ran into them, you had to overcome them and do your job. And I had failed. It’s not a bad lesson.”

Isolated and with the nearest school 25 miles away, she was sent to the Radford School for girls in El Paso, and she lived near the school with her grandmother. In her memoir, she especially recalled her dramatic arts teacher, who drilled her pupils in the art of public speaking and the proper and clear enunciation of words.

She worked hard, got excellent grades and enrolled at Stanford, where she studied economics and graduated magna cum laude in 1950. Two years later, she graduated from Stanford Law School, having been inspired by an undergraduate professor with a legal background.

A member of the board of editors of the Stanford Law Review, Sandra Day graduated third in a class of 102, two places behind her future Supreme Court colleague Rehnquist. At law school, she met John J. O’Connor III, in the class behind her. They worked on the law review together.

“Beware of proofreading over a glass of beer,” John O’Connor was later quoted as saying. “It can result in unexpected alliances.”

They married in 1952 and, by all accounts, had a close and loving relationship, raising three sons, Scott, Brian and Jay.

John O’Connor, who became an Arizona lawyer and civic leader, followed her to Washington, where the couple enjoyed a busy social life. They were inseparable at parties and loved to dance. After decades of marriage, they looked to many like a couple still dating and very much in love.

That brought a special poignancy to an extraordinary chapter toward the end of his life, when his Alzheimer’s worsened considerably by the early 2000s.

While in an Arizona assisted-living center, John O’Connor was increasingly unable to recognize his family, and he struck up romances with other Alzheimer’s patients. The justice said the change in her husband was bittersweet, because it transformed him into a far happier person after years of depression from living with the disease.

She told the New York Times: “He was in a cottage, and there was a woman who kind of attached herself to him. It was nice for him to have someone there who was sometimes holding his hand and to keep him company. And then he was moved to a different cottage, because his condition deteriorated. And in the new cottage, there’s another woman who has been very sweet to him. And I’m totally glad.”

He died in 2009. A complete list of survivors was not immediately available.

Landmark opinions

Justice O’Connor’s political career, which led her to the court, began almost by chance in 1969 when state Sen. Isabel A. Burgess left Phoenix for Washington and an appointment to the National Transportation Safety Board. Arizona Gov. Jack Williams, a Republican, plucked Justice O’Connor from the attorney general’s office, where she was a legislative lobbyist.

Appointed and later elected to succeed Burgess, Justice O’Connor spent five years at the state house, where she became the first female Senate majority leader. In 1979, Gov. Bruce Babbitt, a Democrat, nominated her to the Arizona Court of Appeals.

Reagan had spoken of wanting to appoint the first woman to the U.S. Supreme Court. But when Justice Potter Stewart announced his retirement, there were precious few Republican women serving on appellate courts, state or federal.

As luck and opportunity would have it, Justice O’Connor had met then-Chief Justice Warren E. Burger at a conference in England in 1979 and made a favorable impression. He promoted her name to the White House. About that time, she participated in a symposium on federalism, arguing for greater deference by federal judges to state courts. Her views meshed nicely with the Reagan Justice Department’s philosophy. All this elevated her name to the top of a very short list.

On July 1, 1981, she met with Reagan for 45 minutes in the Oval Office, where the two talked “about horses and ranch life,” as Biskupic recounts in her O’Connor biography, as well as the substantive issue of abortion, which she told him she opposed as “abhorrent.” Reagan interviewed no one else for the job, and on July 7, announced that the little-known appeals court judge from Arizona, Sandra Day O’Connor, was his choice.

After a largely uneventful confirmation, she joined a court that consisted of Chief Justice Burger and Justices Rehnquist, Byron R. White, Lewis F. Powell Jr., John Paul Stevens, Harry A. Blackmun, William J. Brennan Jr. and Marshall. Later, she would serve with Ginsburg, Antonin Scalia, Stephen G. Breyer, Anthony M. Kennedy, Clarence Thomas and David Souter. They were the appointees of six presidents: Dwight D. Eisenhower, John F. Kennedy, Richard M. Nixon, Reagan, George H.W. Bush and Bill Clinton.

From her first year until her last, she would defy neat categorization.

Justice O’Connor effectively, albeit just for a time, saved the constitutional right to abortion, co-authoring the majority ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), reaffirming the central holding of the Supreme Court’s 1973 decision in Roe v. Wade. “The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society,” the majority opinion said.

But in the same case, which upheld a 24-hour waiting period for abortions, she helped carve out a new test for the constitutionality of abortion restrictions – the so-called “undue burden” standard – that made it easier for states to place obstacles in the way of women seeking to terminate their pregnancies.

In City of Richmond v. J.A. Croson Co., a 1989 case, she wrote a crucial opinion striking down a minority set-aside quota system designed to assist minority city contractors.

But in 2003, she wrote the landmark opinion in Grutter v. Bollinger upholding the ability of state colleges and universities, in this case the University of Michigan Law School, to use “race-conscious admissions policies” in the interest of diversity. That ruling, perhaps more than any other, underscored the “real world” inquiry she conducted as she labored over cases. But it was dismantled by the conservative majority in the 2023 case Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

“Context matters,” she wrote. “Numerous studies show that student body diversity promotes learning outcomes. … These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”

“From her very early days on the bench,” Brigham Young University law professor and former O’Connor clerk RonNell Andersen Jones wrote in 2012 on the website SCOTUSblog, “she could be heard (often in the very first question asked at argument) asking how a decision from the Court in one direction or the other would impact actual people, actual businesses, and actual governmental institutions in the country: How would real police officers’ decisions be affected? How would states and municipalities have to reorder their behaviors? What changes would actual small businesses feel? … Eternally a ranch girl, she wanted solutions that really worked and had little patience for esoteric theory that had no grounding in reality.”

Yet, perhaps the most memorable, most ringing single sentence of her years on the court came in Hamdi v. Rumsfeld, a 2004 case rejecting Bush’s claim that the government could hold detainees without due process in Guantánamo Bay, Cuba. “A state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” Justice O’Connor wrote.

But her first reference in the history books will always be as the first woman on the court, and the first mother. And the inevitable question will be whether, beyond the symbolism and the equity of her appointment, her status in life, so different from her colleagues then, actually mattered to the law. The answer, in the view of many scholars, is that it did, up to a point.

“The context she invariably and almost unwittingly relies upon bears a striking resemblance to the experiences and circumstances of an upper middle class, married, white woman who has managed to combine family with a brilliantly successful career,” law professors Judith Olans Brown, Wendy E. Parmet and Mary E. O’Connell wrote in the Indiana Law Review in 1999. “The experiences of poor women, those who cannot bear children, or those who cannot manage ‘to have it all,’ seem distant and largely irrelevant to her decision-making process.”

In other words, they suggested, her sympathies lay with women who, like herself, worked hard to rise in the world as white-collar professionals, only to have their ambitions thwarted.

For example, in Price Waterhouse v. Hopkins, a 1989 job discrimination case brought by a woman denied partnership in a large company, she sided with the plaintiff striving to get ahead professionally, Ann Hopkins. But in a 1982 discrimination suit brought by blue-collar women against Ford Motor Co., she ruled for the company.

In Croson, in which a set-aside for minority contractors was challenged as discriminating against white contractors, she led a majority that ruled against the minority contractors. But in the 2003 Grutter case, involving affirmative action for minority college students, she sided with the striving minorities.

She was, however, deeply unsympathetic to laws that stigmatized gays and lesbians. In her concurring opinion in Lawrence v. Texas, which in 2003 struck down a sodomy law that applied to homosexuals but not heterosexuals, she wrote that a “law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause.”

The Lawrence case helped pave the way for one of the most important landmarks in the nation’s history, the 2015 decision legalizing same-sex marriage, which came not quite 10 years after Justice O’Connor’s retirement.

The first African American on the court, Thurgood Marshall, brought a lifetime of advocacy for poor people and Black people that continued once he joined the high court. The second woman appointed to the court, Ginsburg, followed a similar pattern.

Unlike Marshall and Ginsburg, Justice O’Connor was not an “activist” or an advocate before her elevation. Like them, however, she chose a future consistent with her past.

Bush appointed federal appellate court judge John G. Roberts Jr. to succeed her, but when Chief Justice Rehnquist died in September 2005, he nominated Roberts as chief justice and Alito as associate justice to fill Justice O’Connor’s seat.

Civic engagement efforts

She spent her post-retirement years giving speeches and interviews, writing books and encouraging civic engagement through the Arizona-based Sandra Day O’Connor Institute, with stated core values that reflected the quintessence of her professed judicial outlook: “Nonpartisan, objective, fact based, centrist, inclusive, collaborative, civil.”

The decline of those values in recent years deeply troubled her. Her final, poignant statement announcing her departure from public life pleaded for Americans to work “collaboratively” with a “shared understanding of who we are.”

While still able to be active in retirement, she remained a popular public speaker overflowing with invitations.

She would remind audiences that the only job she was offered after graduating near the top of her class at Stanford Law School was as a legal secretary.

“They were not hiring women,” she recalled in a television interview. “Although there were lots of notices placed on the bulletin boards at Stanford Law School, I contacted them and never got an interview. … It hadn’t dawned on me. And finally I asked a woman friend of mine if she would ask her father, who was a major partner in a law firm, if he could arrange an interview for me.”

That got her through the door. But once inside, she remembered, the interviewer said, “Miss Day, how do you type? … If you can type, we can get you a job as a legal secretary.”

The firm in question was Gibson, Dunn & Crutcher. Years later, then-Justice O’Connor delivered a speech at a gathering of the same firm, reminding them that “because you rejected me I had to settle for just a small firm – of nine.”