Public lore casts Sandra Day O’Connor as the Supreme Court’s controlling force. Even with her delayed retirement looming, references to the “O’Connor Court” are common. But despite our surface familiarity with her life (ranch girl, Stanford Law School graduate, victim of discrimination upon graduation, majority leader in the Arizona Senate, first woman on the Supreme Court), O’Connor remains enigmatic—often misunderstood and mischaracterized. Although she unquestionably has had a significant impact on the court, it frequently has been different from the bumper-sticker description of her role.
In Sandra Day O’Connor, a new biography, Joan Biskupic, USA Today’s Supreme Court reporter, explores the varied strands of O’Connor’s life and tenure. Although Biskupic avoids broad conclusions, her careful reportage provides abundant tools for a fresh appraisal.
The most common overstatement about O’Connor is that she invariably is the court’s deciding vote. In fact, she has often been on the losing side in marquee cases. Just look at last term. The government’s authority to take private property for economic development, the invalidation of California’s medical marijuana law, the permissibility of Texas’ Ten Commandments display, the unconstitutionality of the federal sentencing guidelines—in all of these high-profile cases, O’Connor dissented. In cases in which O’Connor has been in the majority, moreover, she frequently has been one of more than five justices, which makes the cliché about her role as the “deciding vote” suspect. To take two conspicuous examples, O’Connor was one of six justices to invalidate Texas’ criminal sodomy law, and she was one of eight votes to reject the Bush administration’s position on the treatment of American citizens deemed to be “enemy combatants.”
Still, the cliché about O’Connor is not entirely divorced from reality. She has been one of five votes in several key cases, among them affirmative action, partial-birth abortion, and campaign finance regulation. And of course the real character of O’Connor’s distinctive role is that she generally is a “gettable” vote for either side, often swayed by the particularities of an individual case.
This attention to the shadings of each case has generated criticism of O’Connor’s jurisprudence: Some suggest it provides insufficient guidance for litigants and judges. But this condemnation of O’Connor, which has become fashionable in the academy and among Supreme Court commentators across the spectrum, is doubly flawed. It ignores the fact that O’Connor’s nuanced jurisprudence is squarely rooted in the Anglo-American common-law tradition, in which the particularities of each case shape the movement and direction of the law. In contrast, the promulgation of sweeping rules and an effort to force each case into an unyielding rule—an approach O’Connor rejects—is far more characteristic of the legal systems in “code” nations, as in Europe.
This criticism also overlooks O’Connor’s significant contributions to court doctrine. Although her case-by-case approach is sometimes caricatured by critics who make it seem that her rulings depend on what she had for breakfast, she has repeatedly fashioned standards that have proved influential. On abortion, for example, she is not only responsible for providing a key vote to uphold Roe v. Wade but also for the current standard of asking whether a restriction places an “undue burden” on the woman seeking an abortion. Similarly, on government support for religion, O’Connor has developed the governing framework—whether a reasonable observer would view an activity as a government “endorsement” of religion. And while it is easy sport to mock the results (a public crèche is OK if accompanied by three reindeer or Frosty the Snowman), it is far more difficult to craft a more satisfying standard than most of her critics acknowledge.
Perhaps the most striking aspect of O’Connor’s record is her effort to steer between what she sees as the extremes of either side. She permits affirmative action, but with limits. Abortion, but with restrictions. She led majorities barring federal litigation against states and rejecting oddly shaped voting districts crafted to ensure minority representation—and then voted in individual cases to permit both. She is an incrementalist, suspicious of the law moving too violently in any direction.
This approach frustrates those who want the law to stand for glittering absolutes. But as the great constitutional scholar Paul Freund loved to say, “in law, as in art, the real action is in the shadows.” Much to the fury of her critics, O’Connor is comfortable respecting the shadows.
Biskupic resists the impulse to parcel O’Connor’s record into predictable packages. She is a disciplined reporter, and, like her subject, the biography emerges as an incrementalist work, avoiding the glib generalities that have emerged in works on the court from both left and right. She leavens her account with material from interviews about O’Connor from seven of her eight colleagues, a remarkable achievement, since the justices are notoriously reticent.
Biskupic is particularly compelling on the dynamic between O’Connor and the other justices, and on how the dynamic among them may have affected O’Connor’s approach. Some of it has been well-chronicled—Justice Antonin Scalia’s remarkably intemperate attacks on O’Connor and O’Connor’s subsequent alienation from him; the profound influence of Justice Lewis Powell in pulling O’Connor toward the center.
But some of it is new—an apparent rivalry between liberal lion William Brennan and O’Connor for influence on the court, and Brennan’s clumsiness in his maneuvers; the effectiveness of Justice Stephen Breyer in reaching out to her. With Potter Stewart’s departure in 1981 and O’Connor’s replacement of him, Brennan seemed to have lost an important occasional ally. He viewed his new colleague with suspicion, and—though he is often thought of as the consummate court politician—he made the same mistake that Scalia would make several years later: He caustically attacked her, and if anything seems to have driven her away. Brennan’s approach to cases became particularly arch and unyielding in his later years, and even when he had O’Connor’s vote he could not get her to join his opinions. Breyer’s style would prove far more hospitable to O’Connor than Brennan’s broadsides; like her, he was attuned to the particularities of each case and searched for common ground.
Biskupic persuasively suggests that O’Connor’s brush with breast cancer in 1988, and the accompanying confrontation with her own mortality, was a transforming event that further crystallized her fierce independence. “As the ordeal gave her new strength and personal spirit,” writes Biskupic, “it may have awakened her to the greater possibilities of her place on the Court.” The very term that O’Connor grappled with cancer, her positions on several important cases, from gender discrimination to habeas corpus, seemed to have “a new clarity” and forcefulness.
Biskupic further notes the intriguing possibility of an O. Henry-like twist to the fallout from the Bush v. Gore debacle: It may have left O’Connor particularly determined to show that she was not part of a predictable voting bloc.
Knowing that her tag line inevitably will be that she broke the gender barrier, O’Connor has called herself FWOTSC (“First Woman On The Supreme Court”). But, as Biskupic’s book elucidates, O’Connor should be known not only for being the Jackie Robinson for women on the Supreme Court, and the “deciding vote” of current public repute, but rather a careful common-law judge whose attention to nuance has been principled and consistent. The disdain for O’Connor’s concern with fine distinctions from across the spectrum of commentators may now be tested by a court displaying precisely the predictability and certainty that they found lacking in O’Connor’s intensive case-by-case evaluations. And we may see a sudden rediscovery of the genius of the common law.