With her retirement, Sandra Day O'Connor did to many American feminists what she's done during her tenure as a Supreme Court justice: Eluded them. She left, in part, to spend more time with her husband, John O'Connor, who suffers from Alzheimer's disease and who has been known to spend his days in her chambers while she works.
Surely your average successful lawyer has faced this dilemma: give up a career or take care of the family. But not the Chief Woman Lawyer of America -- she shouldn't quit to take care of her family, should she? What kind of message does that send?
"I was on a radio show and someone called in to say, 'Would we ever see a man retire to take care of his spouse?' " says Suzanna Sherry, a law professor at Vanderbilt University who has written about O'Connor. "This is why she's never been considered a feminist's feminist. A feminist would say: 'Well, why would she do that?' " O'Connor was the first woman appointed to the Supreme Court, and that alone seals her place in American feminist history. It makes her arguably the most powerful American woman, one rung short of the first female American president. She was third in her Stanford law school class at a time when a woman was lucky to get a job as a secretary at a law firm. That's the job she was offered upon graduation, so she invented her own career path.
Still, she never quite fit the image of a modern feminist. She was appointed by Ronald Reagan. Although she ended up in a critical tie-breaking role on the court, it seemed as if by accident; legal analysts often criticized her for lacking a coherent judicial philosophy, an aggressive Grand Unified Theory that characterizes, say, Antonin Scalia.
In her autobiography, "Lazy B," she wrote about growing up on a remote cattle ranch in Arizona, rounding up wild colts and witnessing drunken bar fights. But the Annie Oakley image never stuck. She is better known for delaying her career until her three sons were in school. Her public persona in Washington was maternal, nurturing, genteel, soft. She let her granddaughter write a book about her featuring a picture on the cover of the two of them holding a teddy bear. On her clerks' door she left a Xerox of her hand with a note that read "For a pat on the back, lean here."
Yesterday, during its convention, the National Organization for Women planned an impromptu march on the Tennessee state capitol in response to news of her retirement. "We are determined not to have an extremist who will roll back women's rights," Eleanor Smeal, president of the Feminist Majority, said in an interview from the rally, with the crowd in the background shouting, "Hell no, we won't go." The feminist movement kicked into action immediately when it lost O'Connor. She may not have been a reliable ally on their pet causes (she voted to invalidate the Violence Against Women Act, for example), but she came through as the critical vote on cases involving abortion and affirmative action. But there were no heartfelt personal reminiscences. No honoring of a fellow suffragette's guts and glory. Just the legal issues and the facts, with all the emotional warmth of a legal brief. It was understood that O'Connor herself wouldn't be caught dead at such a rally.
Smeal testified for O'Connor when she was first nominated and, Smeal says, "I never regretted my testimony." Smeal's highest compliment: "She's obviously a conservative woman, but she did not turn her back on women's rights. It was the best we could do under the circumstances."
In the mid-'80s, feminist legal theorists made an attempt at embracing O'Connor. Sherry wrote an article describing the jurist as the archetype of "difference feminism," a theory popularized by feminist Carol Gilligan and which holds that men and women reason differently and write in different styles.
O'Connor, she wrote, had a uniquely "feminine perspective"; she consistently valued communities over individuals, moderation over confrontation, wrote in a way that's more contextual, less "abstract" and more "caring."
But many feminists "balked at the idea that difference feminism could explain a conservative woman," says Sherry.
O'Connor herself rejected the thesis as well.
"This 'new feminism' is interesting but troubling, precisely because it so nearly echoes the Victorian myth of the 'True Woman' that kept women out of law for so long," O'Connor said at a speech at New York University in 1991. "Asking whether women attorneys speak with 'a different voice' than men do is a question that is both dangerous and unanswerable."
In her generation, women competed on equal terms with men, and the updated feminism must have struck her as a cop-out of a kind.
Once Ruth Bader Ginsburg came on the court in 1993, feminists had an ally they could truly rely on. Ginsburg had dedicated her career to fighting for feminist causes; she had founded the American Civil Liberties Union Women's Rights Project to argue that the law discriminated between men and women; she sees the world through that lens. Now she is the one who wins honors with such names as the Athena Award. NOW named its annual lecture after her.
O'Connor then settled into a place with the feminist establishment that suited both sides better: as the spotty understudy. O'Connor became a favorite speaker at commencement events. She was invited to the types of places that give out crystal figurines, as Margaret Talbot pointed out recently in the New Yorker. (Last year she accepted $5,825 worth of gifts, the second highest amount after Clarence Thomas, "mostly in small crystal figurines," O'Connor said.)
These days O'Connor has a new status in women's circles. She is now the mother of "Sequencing," a new fancy word that means delaying your career until your children are in school. "Juggling Career and Home: Albright, O'Connor, and You," reads a recent article in Mothering magazine, explaining how you can take care of your family and have a stellar career. So maybe feminism has caught up with the Supreme Court justice after all.