O’Connor breaks ground again, this time as a former Supreme Court justice
By Robert Barnes,
Fort Worth — Amid the feathers and leather, rhinestones and pastel boots that dominated the National Cowgirl Museum’s recent celebration of tough women, Sandra Day O’Connor searched for ways that ranch life had prepared her to become the Supreme Court’s first female justice.
She finally acknowledged the unlikeliness of her trailblazing career.
“It is odd that a cowgirl ended up on the court, isn’t it, as the first woman?” she told a small crowd as she opened the museum’s exhibit on her life.
Thirty years ago this fall, O’Connor broke the gender barrier on a Supreme Court that will never again look like the one she joined. It is “startling” now, she said recently, to visit oral arguments and see three woman on the bench. “I like it,” she added.
O’Connor went from curiosity to the most influential justice: a moderate conservative whose pragmatism put her in position to cast the deciding vote for compromise on many of the court’s most contentious issues.
Now, in the nearly six years since she retired, the 81-year-old O’Connor is breaking ground again and creating her own template for life after the court: She has served as a Republican-appointed member of the commission that studied the Iraq war; she crosses the country advocating for causes she favors; and she has made a special mission of trying to persuade states where judges are elected that they should shift to a system of appointed judges.
That she has done all of this while continuing to hear cases as a judge on the country’s appellate courts has at times made her as controversial in retirement as she was during her 24 years on the bench.
“Former U.S. Supreme Court justice and current political activist Sandra Day O’Connor” is how Carrie Severino, policy director of the Judicial Crisis Network, referred to her in a piece in the conservative National Review.
A two-pronged response
None of it was what O’Connor said she had planned in 2005 when she informed President George W. Bush that she was stepping down to care for her husband, John, who died of Alzheimer’s disease two years ago.
“It just kind of grew,” O’Connor said in a recent interview in her Supreme Court chambers, the same one she occupied when she joined the court in 1981. “I hope I’m being constructive. That’s the goal.”
What has motivated her activism, she said, is her belief that judicial independence is threatened, in part by a lack of understanding about the role of judges.
“We were getting increasing amounts of criticism as judges: activists; secular, godless humanists trying to impose our will on the rest of the nation,” O’Connor said.
She and others concluded that a lack of civic education contributed to the problem. “A majority can’t name the three branches of government,” O’Connor said.
Her response has been twofold: one, the kind of public-minded campaign that retired public servants usually advocate, and the other a more controversial, middle-of-the-political-fray that is a reminder that O’Connor for decades has been the only justice who previously faced voters as both a legislator and judge.
One was a Web-based initiative she has advocated called icivics.org, meant to supplement civics education for middle school students.
More controversial has been her vocal stand against elected judges. She has condemned the soaring campaign contributions that have marked contested, sometimes partisan races for high court seats in some states.
“When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law,” O’Connor wrote last year in a New York Times op-ed.
Her activism peaked last fall. During a campaign in Iowa to oust state Supreme Court justices who had ruled that a prohibition of same-sex mar- riages violated the state constitution, she attended a conference on judicial elections. Other federal judges had been informally told that attending the conference might violate rules against participating in political events.
She took no stance on the retention issue in her speech at the conference but said voters should not “punish” judges for unpopular decisions.
She also lent her support to an effort in Nevada to replace its system of electing judges with a merit selection plan. She was embarrassed when an advocacy group supporting the effort used her voice in robo-calls to voters — especially when a glitch launched the automated phone calls in the middle of the night.
Conservatives generally oppose merit selection, saying it puts too much power in the hands of liberal groups such as state bar associations.
The Washington Times called on O’Connor to retire completely from judging. Laurence H. Silberman, a conservative favorite and senior judge on the U.S. Court of Appeals for the D.C. Circuit, publicly criticized O’Connor in a speech to the Federalist Society.
O’Connor’s actions violated judicial canons prohibiting political activity, he said. He called her advocacy a “real ethical concern” as opposed to what he saw as “phony” complaints by liberals about the outside-the-court activities of conservative justices.
O’Connor is unmoved.
“My understanding of the canons of judicial ethics is that it’s expressly allowed for judges to take positions on things affecting the operations of the courts,” she said in the interview. “Nothing affects them more than how judges are chosen.
“So I read that as being totally allowed — totally.”
Law professors who specialize in judicial ethics have generally sided with O’Connor’s interpretation, although they say it can be a close call.
But O’Connor’s efforts have so far been in vain. Voters routinely reject efforts to junk elective systems.
“I can’t announce any progress,” O’Connor said. But she adds: “I do not intend to give up.”
Still hearing cases
Lee Epstein and Thomas G. Walker, two political scientists who are experts on the justices, said O’Connor’s retirement activism stands out among modern justices: “Advocacy work has been especially rare.”
O’Connor’s decision to continue hearing appellate cases is more common. Justices are entitled to a clerk, chambers at the court and their more than $200,000 annual salaries for life; if they want raises, they are required to hear cases.
She has sat on almost all of the circuits since her retirement, participating in more than 140 cases, ranging from the significant to the odd.
“This is a case about a wolf named Dutchess,” O’Connor wrote for a three-judge panel that decided in favor of Prince George’s County animal control officials who had picked up a couple’s exotic pet.
O’Connor has served most often on the U.S. Court of Appeals for the 9th Circuit, which covers the West. “She’s very good about taking whatever is assigned to her,” said the circuit’s chief judge, Alex Kozinski. He said her public activities have not conflicted with her service on the court.
If O’Connor’s activities are well-chronicled in the legal community, her place in the greater world remains more symbolic.
That was clear at the National Cowgirl Museum, into whose hall of fame O’Connor was inducted in 2002.
Her recent talk was a reminder of how different her life had been than those of the current justices, almost all of whom lived their lives in the East, and four of whom were raised in New York City.
O’Connor spoke of the family’s nearly 200,000-acre Lazy B Ranch that straddled Arizona and New Mexico. She reminisced about the roughneck ranch hands who slept in screened porches around the family’s “headquarters.” She recalled the predawn summer morning in 1945 when, as she finished the breakfast dishes, the whole sky turned white outside the kitchen window.
Only later did she learn it was the first test of an atomic bomb, detonated 140 miles away in the New Mexico desert.
Perhaps being a cowgirl did provide one advantage, she said. President Ronald Reagan, who had made a campaign pledge to nominate the first woman to the court, loved ranch life and all things Western.
“Probably because I’d grown up on the back of a horse, he had more interest in me than other candidates,” she said.