Conversations with Outstanding Americans: Sandra Day O'Connor
Elected in 1981 as the first woman to sit on the Supreme Court, Justice O'Connor has proved to be both a pragmatic, conservative voice and a coalition-builder. Her "swing vote" has often tilted major rulings.
WASHINGTON — By
Sandra Day O'Conner inhabits one of the loftiest spots in American law. As the third-senior member of the Supreme Court, the former ranch girl from Arizona who used to "get up at 3 a.m. and be in the saddle by sunup," as she puts it, has more than come a long way. But what Justice O'Connor wants today is more common sense in the interaction between law and ordinary people.
In a wide-ranging conversation with the Monitor, the practical minded O'Connor backs a number of reform ideas. She wants courts to not only seem more accessible, but to actually be so. She would be willing, for example, to allow people to serve on juries who have seen or heard news reports of a crime. (See comments at right.) Otherwise, "you get hear-nothing, see nothing people. Is that really a jury of your peers?" as she says one afternoon recently in her comfortable chambers. Likewise, she's investing hope in new methods of conflict resolution that give people the feeling "they've been heard" by the justice system.
O'Connor, arguably the most influential woman in US government until last week, when Madeleine Albright became secretary of state, is one of the high court's most influential members. Insiders say that if GOP candidate Bob Dole had been elected last fall, and Chief Justice William Rehnquist retired, as he used to hint - O'Connor would be a likely replacement for the top job.
Yet it is clear these days that O'Connor is not just thinking nationally, but internationally as well. Since the fall of the Berlin Wall, she has been volunteering to help new democracies draft constitutions and write legal codes. "It was a moment in history that wouldn't be repeated in my lifetime," she says.
She received a group of Bosnian judges this month, for example, despite a heavy term and her own rigorous schedule. After an hour pep talk, she whisked them into the magnificent courtroom, telling the slightly awestruck group, "I think it is important that judges from around the world get to know each other. I know you have suffered, but I hope it is over. No work will make more of a difference now than building an independent judiciary."
She's helped mobilize US lawyers both to defend and prosecute at the International War Crimes Tribunal at The Hague. She finds it "just dreadful" that the international community would indict "those leaders" in Bosnia and then "let them roam the countryside freely."
Through the American Bar Association, O'Connor backs judges' associations in Latvia, Poland, Macedonia, and Bulgaria that are striving to be independent. She's followed the case of one Zef Brozi - the former chief judge in Albania who last year fled arrest and is now a refugee in America - and hands away fat Helsinki Watch reports on him.
Of course, O'Connor's main focus is the US Constitution. On the court, she has increasingly emerged as a legal force in her own right. Her skills at coalition-building and her pragmatic brand of conservatism make her one of two "swing votes" necessary for a majority opinion. Attorneys arguing before the court, and the scholars who coach them, often shape their arguments for O'Connor's ears.
Yet in her chambers, decorated with Southwestern patterns, Indian sand paintings, and a large oil of the Grand Canyon, O'Connor wears her judicial solemnity lightly. She leans forward intently, in a posture akin to Rodin's "The Thinker." She is alert and probing, as many lawyers before the court can ruefully admit. Yet there is also something almost, well, grandmotherly about her. She likes aphorisms, "A good judge has a cool head and a warm heart." Her speech is deliberate; she rarely commits to a position. Instead, she'll say, "I'm interested" in that. Or, something has "a good start." Yet she is passionate about making the law relevant.
One area O'Connor is more than just "interested" in is conflict resolution and mediation. Cases decided by mediation are usually conducted without a jury and without strict procedures that require lawyerly devices, and can silence both parties. By allowing ordinary people to tell their story to a judge in an informal setting, people, "feel they have been heard' says O'Connor. That airing of grievances is often the most important outcome of a legal action. The Indian tribal council is a model of mediation for O'Connor. The council considers that tribal members "go on living with each other" after a decision is made, she says.
As a jurist, O'Connor has not written a Himalayan range of opinions. Yet her use of the concurrence and her "contextual" approach to the law are earning scholarly attention. O'Connor is a conservative "pragmatist" whose views often differ with the ideological conservatism of justices like Clarence Thomas and Antonin Scalia. Rather than strive for the "bright line" (clear, strong black-and-white law) rulings that Justice Scalia, for one, favors, O'Connor steers an opposite course toward a "balancing of many factors," says Tulane law professor Nancy Maveety, author of a new book on O'Connor.
Take capital punishment for juveniles. Liberals have opposed it unilaterally. Ideological conservatives support a "bright line" ruling to eliminate age as an issue. O'Connor held out for allowing judges to weigh factors such as upbringing and the youth's history before any capital sentence.
In ground-breaking areas she wants to inch along, not offering sweeping rules. Joining an opinion is "a little like walking through a patch of recently poured concrete," she says. "You look back and see those steps forever. You see them! They aren't easily covered up or removed. It makes me want to tread softly."
Her main impact is in the area of reproductive rights, church and state (where she has slightly lowered the wall between church and state), and race (where she has advocated "color blind" solutions to voting rights and affirmative action). Along with Rehnquist, she is also a leading proponent of states rights.
In one of the most important decisions of recent history, upholding abortion rights in 1992, O'Connor rejected the "bright line" overturning of Roe v. Wade. With Justices Anthony Kennedy and David Souter, she essentially affirmed her own original 1983 opinion on abortion - not allowing a state to forbid abortion in a way that would create an "undue burden" on a woman.
O'Connor uses the concurrence - a vote for the majority but for independent reasons - as a form of art. Often, and in O'Connor's case quite often, a concurrence can later have more influence than the opinion itself. It can also force concessions. For example, in a 1989 memo to then Justice William Brennan in a gender discrimination case, O'Connor wrote: "If you are able to incorporate these suggestions, I will be pleased to join your opinion. If not, I will consider writing separately ...." (Many such memos surfaced in the papers of the late Justice Thurgood Marshall, something O'Connor is reportedly "furious" about.)
Critics say O'Connor is too elastic. They say she can't make up her mind, one putting it: "I know she knows what she thinks she thinks, but does she know what she thinks?"
Jeffrey Rosen of The New Republic has been especially tough, arguing that O'Connor doesn't have an argument for the end of racial classification but "an impulse... she is unable to articulate," saying that in voting rights cases her bottom line is that "government can be race conscious, as long as it's not too obvious about it."
Dr. Maveety argues that critics fail to note that O'Connor's views have become settled opinion, with the criticism of her mainly over details. Others note that her decisions have not pleased either strong liberals or conservatives. "She's not lost, like some people say," notes one former colleague.
While unwilling to discuss legal views, O'Connor does give hints. She has always been able to orient herself in unfamiliar terrain, she says. She never got lost on the Arizona range, and, even in cities, "I always have an instinct for where I am."
Her Arizona upbringing has been much mentioned - even apotheosized into a "Little House on the Prairie" stereotype. Still, growing up as a virtual only child 35 miles from the nearest town had an enormous influence. Her work ethic was shaped by her father's example. Her ideas on conflict resolution are grounded in a knowledge of Indian tribal councils. Even efforts to help Eastern Europe come from her Arizona days: "Where I grew up, neighbors helped neighbors.... that's our tradition."
She is uncomfortable mixing talk of work and gender, and suspicious of feminist ideas about her career and jurisprudence. "Wise old men and wise old women usually decide cases the same way," she likes to say.
Still, as a working mother (her description), her path was shaped by gender. Her rural upbringing isolated her from limiting peer group patterns, some friends think. It "simply wasn't in my mind that I couldn't make it into law school," she says about being the first female at Stanford law. So, when she graduated, "I couldn't imagine not getting work in what I trained for."
She was in for a surprise. No San Francisco law firm would interview her. Through a friend, she got an interview at Gibson-Dunn; a partner, William French Smith, later US attorney general, offered her a secretarial job. Decades later, it was Mr. Smith who called on behalf of Ronald Reagan - at which point, as she put it, the only question was whether she would be secretary of labor or of commerce.
Nor is gender excluded from the bench. Early this term the court took the case of a Mississippi mother whose daughter was adopted by the husband's new wife. The mother could not legally visit the child. When the state required $2,352 in fees to hear her case, mom appealed directly to the Supreme Court.
During argument, the Mississippi lawyer grandly said the case had nothing to do with motherhood - but filing fees. O'Connor asked incredulously if there wasn't a "fundamental right" a mother had toward her child. The lawyer blithely answered, no. That set off both O'Connor and Justice Ruth Bader Ginsburg, and led to a decisive defeat of Mississippi last month.
Nor is O'Connor all law and business. She tells of two huge Zuni drums that sit in her office: As a historical society member, she supported restoring a colonial-era New Mexico church painted inside with bird-like Zuni tribal gods. The O'Connors visited the site as it was closing one night and, unidentified, talked their way in for a few dazzling minutes. As they left, dozens of Zuni elders streamed out of their lodges to do the sacred dance. The scene, with the drums, the sun setting, and the elders doing the ancient dance on the burnt orange desert was "profoundly moving," she says with a smile. The next day she ordered the drums. She can still hear them.
On health of society ...
I'm very concerned. Most people have a sense that our standards of behavior have worsened. That our standards are looser and easier, and this is not always to good effect ....I question whether our country is doing all it can to avoid any further deterioration in values or deepening cynicism ....I think children do need to be taught that there are some basic values. They need to be habituated to citizen participation and be taught there are values and rules that help us to live in harmony with our fellow citizens. And also I think we should be critical of just talking about values without living them.
On new members joining the Supreme Court ...
We are a small institution. We are nine people who work very closely together. We see each other often, we talk a lot. If you change one member of the nine, there is an enormous effect on the group dynamics. Replace one justice and we really have a different court. This isn't something technical; it isn't just mechanically replacing a justice. Each member of the court is able to offer their own approach .... [Justice emeritus] Byron White used to say, 'It is not just a new justice, it is a new court!'
On talking about values without living them ...
We are a nation of talkers. We are exposed day and night to media speech, whether it is written or on TV. We are surrounded by new publications. But maybe what makes the strongest impression on a child is observing others, and observing the behavior of those they see often, whether it is parents and family members or teachers in schools.
On whether the Constitution is too dry and difficult to understand...
The concepts are not difficult once you understand that the great innovation was to create a federal system leaving sovereign states to function as sovereign entities within the broader federal system; that the framers developed three overall branches of government each with certain checks on the other branch - a system that makes it difficult for one branch to take over the functions of another branch.
On being a states' rights advocate...
I do have faith in government closer to the people; not that they don't make mistakes. Indeed, the post-Civil War amendments are the most striking reminders of a need for constitutional requirements for state and local government.
Justice O'Connor Speaks Out On ...
A jury of peers:
These days we tend to think any prospective juror who has seen a TV report or read a newspaper discussing a particular event should be disqualified. What you end up with sometimes is a jury of see-nothing, hear-nothing people. I'm not sure if that really is a jury of our peers.
I tend to think that even if someone has heard something about a case, we should consider letting them serve on the jury, provided they convince the judge they can be fair and decide the case on the basis of the evidence at trial and the judge's instructions. Otherwise, as I say, we get unrepresentative juries.
Also, in my view, jurors should be allowed to take notes. In many places, they are not. Some judges may say you can hear the testimony, but that's all. I have long thought it's not realistic. Some people understand better by reading than by hearing, some understand better by hearing alone. By not allowing them to both hear and read the judge's instructions, we deprive some juries of a means of understanding.
Judges should simplify many instructions so the average person can understand them. We should also consider giving instructions at the beginning of a trial as well as at the end.
Otherwise, a juror can listen to hours and hours of testimony and not know what the issues in the case are until the very end. In many jurisdictions, they can take no notes and get no instructions until the end of the case. That's not good enough if we want the system to work as well as possible.
Jurors should be allowed to pass questions to the judge ...to let the judge know that there are areas they don't understand.
As for the selection process: No common-law country makes as great a use of the jury as ours. We are the only country that allows a certain number of juror strikes without cause by each side in selecting juries. I have thought a somewhat more restrictive system should be considered.
We need some improvements in the jury process; every state should take a look at the needs in their state. My home state of Arizona has been innovative in this area.
Sandra Day O'Connor Chronology
* Born Sandra Day in El Paso, Texas., on March 26, 1930, and spends first eight years at Lazy B Ranch on the Arizona-New Mexico border.
* Attends Radford School for Girls in El Paso beginning at age 8 and lives with maternal grandmother, Mamie Scott Wilkey, while helping at Lazy B during the summers.
* Graduates early from Austin High School in El Paso at age 16, and enters Stanford University that same year, majoring in economics. Graduates magna cum laude in 1950, and finishes third at Stanford Law in 1952, making the Law Review.
* Unable to find work in private Bay Area law firms, but lands a public-sector job as a law clerk for the San Mateo district attorney in 1953.
* Goes to Europe when husband, John O'Connor, a fellow Stanford law student, is drafted into the Army, and the couple returns to Phoenix, Ariz., where their first child, Scott, is born in 1957. Opens small law office in Phoenix suburb in 1958 as court-appointed attorney for indigent clients.
* Leaves law to raise family, but also begins work for Arizona Republican Party. In 1965, lands job as assistant attorney general of Arizona. Appointed to a vacated State Senate seat in 1969, and is elected to the position the next year. In 1972, serves as co-chair of the state Committee to Reelect the President, Richard Nixon.
* Runs for trial judge of Maricopa County Superior Court in 1974. Asked by the Republican Party in 1978 to run against Bruce Babbitt (D) for governor, but declines. Appointed in 1979 by Governor Babbitt to Arizona Court of Appeals, writing 29 opinions in 18-month tenure.
* Nominated for US Supreme Court judge on July 7, 1981, by President Ronald Reagan; confirmed by the US Senate in September by a 99-0 vote.
Ten Influential Supreme Court Opinions by Justice O'Connor
* Mississippi v. Hogan, 1982
Oft cited majority opinion in which O'Connor ruled that a male applicant could not be denied a place at all-women's Mississippi nursing school.
* Akron v. Akron, 1983
Dissent on ruling revisiting Roe v. Wade. O'Connor offers alternative between pro- and anti-abortionists on court; says state may not "unduly burden" a woman's right to choose.
* Lynch v. Donnelly, 1984
Concurring opinion allowing accommodation of Christmas nativity scene in public. Sets out "endorsement" principle seeking alternative to high wall vs. low wall between church and state. Says context of religious symbols placement determines if state is violating "establishment" clause of First Amendment by "endorsing" religion.
* Strickland v. Washington, 1984
Establishes standards for evaluating lawyers for criminal defendants.
* Wallace v. Jaffree, 1985
Concurrence overturns Alabama law requiring a moment of silence for prayer in public schools. Expands O'Connor's standard of "endorsement" in church-state case - arguing that state action on behalf of religion must not harm an individual's status in the community.
* Richmond v. Croson, 1989
Majority opinion that begins to end minority "set asides" (30 percent quota of construction in city of Richmond for minority contractors), and begins to articulate "color blind" standards for city contracts.
* Metro Broadcasting v. FCC, 1990
Dissent opposes federal policy for racial preferences in new radio station licenses. Citizens must be considered individuals, not "simply components of racial, religious, sexual or national class."
* New York v. US, 1992
Key states' rights decision forbidding federal government to "commandeer" New York State in disposal of low-level nuclear waste only within borders. Set stage for later 10th Amendment state sovereignty cases.
* Planned Parenthood v. Casey, 1992
Co-authors landmark abortion opinion with Justices David Souter and Anthony Kennedy. Reaffirms Roe v. Wades's right of a woman to choose.
* Shaw v. Reno, 1993
Majority opinion in a North Carolina case that sides with white citizens saying their strangely shaped voting district abridges their rights. O'Connor writes that a community must have territorial and political integrity; case has spawned three others setting out "color blind" reasoning.