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Woman of the Hour: Sandra Day O’Connor — as the swing vote on a divided Supreme Court — is now the most influential woman in America. But don’t try telling her that.
By Al Kamen and Marjorie Williams
Washington Post Staff writers
June 11, 1989
It is fitting, for the first woman to crack the innermost sanctum of the male power culture, that the best stories about Sandra Day O’Connor center on golf.
The most emblematic, volunteered by four of her nearest relatives, concerns the way she took up the game, in her early forties. First she signed up for lessons at the Paradise Valley Country Club, to which she and her husband belonged. There, a 10-minute drive from her house, she worked with the club pro, and there, every Saturday, she hit bucket after bucket of balls on the driving range.
She did this week in and week out for two years, the story goes, before she actually played a game of golf. “She wasn’t going to do it until she was ready,” says O’Connor’s brother, Alan Day. “And when she was ready, she did a doggone good job of it.” Specifically, her family says, she shot under 90 her first time out. Justice O’Connor disclaims this score as apocryphal — but adds, in the interest of accuracy, “It was more like four years.”
This is the signature tale about the most influential woman in America, containing as it does intimations of both excellence and obsession. When others are out making divots in the fairway and fools of themselves, Sandra Day O’Connor has more self-control. Enough self-control to defer gratification for as long as necessary. Enough self-consciousness not to want to be seen until she can be seen at peak form. Enough self-discipline to practice until she achieves that peak.
These are the qualities she has brought to all her undertakings, from law school to the Arizona Senate, from running the Phoenix Junior League to presiding over trials as a lower-court judge; the same qualities she has applied, in the personal realm, to friendship, to motherhood, to her battle with breast cancer.
They are also the qualities that brought her to the Supreme Court, where they have made her arguably the perfect “first woman” — fulfillment of that old feminist prophecy that for some time to come, women must work harder, be stronger, offer fewer signs of a vulnerable authenticity than men to make it in a man’s world.
Friends describe her as a warm, down-to-earth woman who bakes birthday cakes for her law clerks and went to a retirement home Christmas party last December to cheer a friend’s dying father. But even those closest to O’Connor describe her as private, reserved and self-contained. Says her good friend Jean Douglas, “She’s very self-sufficient and very in control.”
“I’ve never seen her lose control,” concurs her sister, Ann Fernandez. “I’ve just never seen it, and I doubt anybody else has.”
“All her life,” says her brother, “whatever she did, whether it was important, or unimportant, or semi-important, or very important, she just would do it to perfection . . . If you said, ‘The job is to wash dishes well,’ she would do it better than anyone else.”
Now, after almost eight years in Washington, she finds herself under intensified scrutiny as the decisive vote on a divided court. Until the retirement of one of the court’s aging liberals, O’Connor stands for a brief moment as the woman who will determine the direction of the court — and therefore the country — through such minefields as religious freedom, affirmative action, the death penalty and, especially, abortion.
The woman whose nomination to the court in 1981 was attacked by anti-abortion activists is today nervously watched by abortion-rights supporters. As both sides tensely await the court’s decision this month in a Missouri case challenging the 1973 ruling that established the right to abortion, their mutual uncertainty over O’Connor’s course is the perfect illustration of how opaque a figure she remains.
Her writings to date document a conservative but independent justice with no overarching ideology. Open-minded, yet cautious and detail-oriented, O’Connor has shown a tendency to approach each case as a problem to be solved — and to narrow the problem as much as possible.
Where once her mail was full of warmly appreciative letters from women inspired by her success, she is now deluged with mail urging her to dramatic measures — measures that would lift her from the symbolic role she earned on the day of her appointment and place her among those who have forever changed the substance of American life.
It is not at all clear that Sandra Day O’Connor, who asks so much of herself, welcomes the invitation.
At the start of an oral argument, as the nine Supreme Court justices materialize like so many dark ghosts from behind the crimson curtains that stretch along the east end of the courtroom, Sandra Day O’Connor is a most reassuring apparition of change. Her femininity remains, to be sure, a startling contrast — made more dramatic by the fact that she is the only justice who does not wear glasses on the bench. But with her mild, flat voice and buttoned-down manner, with her gap-toothed smile and modest PTA hairdo, she could be Donna Reed at a gathering of kindly country doctors.
Her hands, though, are surprisingly square, almost bony — a reminder of her rural, western roots and of her sheer physical fortitude: Here, they remind us, is a woman who learned to brand cattle at the age of 8 and who each year takes her clerks on an “adventure” — something along the lines of a whitewater raft trip down the Youghiogheny River.
In the past 16 months that fortitude has been tested, by appendicitis and breast cancer. Late last fall, after O’Connor had a mastectomy, there were rumors that she might retire from the court. In addition to the surgery and subsequent chemotherapy, there was the fact that her husband, John, after seven years at the Washington firm of Miller & Chevalier, had moved to a firm that required his presence in the O’Connors‘ home town of Phoenix for about half of each month.
Close friends dismissed the speculation, noting that O’Connor, 59, received a clean bill of health after her chemotherapy and that the couple had just bought a new house in Chevy Chase. The real reason for their certainty, though, was this: Sandra Day O’Connor loves being an associate justice of the Supreme Court.
“I think she thinks she’s good at it,” says O’Connor’s good friend Nancy Ignatius. “I think she thinks she’s important to the country, and as a role model to women.”
She manages a staggering schedule. On top of the court workload, with the voluminous reading it requires, she takes seriously her role as a public figure, answering mail, delivering speeches and receiving visitors to the court, whether from abroad or from a local high school. She can get by, when she has to, on four hours of sleep. On the bench, her head sometimes bobs slightly in a noticeable tremor until she leans forward and rests her chin in her hand. But a query from an Associated Press reporter three years ago drew the response that she was “unaware of such a tendency,” and she seems as vigorous as ever.
She cuts no corners. To choose the four law clerks she hires each year, for example, she personally reviews the 100 or more resume’s sent to her chambers — a task most justices relegate to a screening committee — and then interviews a dozen or so finalists. And in reviewing her clerks’ draft opinions, she has them wheel into her office a library cart piled high with every case or law review article used in the drafting; she then personally checks every citation in each opinion.
O’Connor once told an interviewer, “A friend of mine was asked to describe me and said that with Sandra O’Connor there ain’t no Miller time. I think maybe that’s true.”
“I am overwhelmed,” says son Brian, 29, “at how much she gets accomplished.”
The O’Connors manage, too, a frenetic social life. A Supreme Court justice is, by definition, one of the handful of Washingtonians who have permanent claim to a place on the social “A” list; O’Connor’s added novelty value as “first woman” has made her one of the most clamored-after guests in town.
When they first came to Washington, with all three of their sons in or finished with college, the O’Connors sold their house in Phoenix and bought a condominium in the Kalorama area. They joined the F Street Club, the Waltz Club and the Chevy Chase Club, where O’Connor plays tennis and golf at least once a week, on top of an almost-daily exercise class. Together, the couple quickly set something like a local record for social ubiquity. They appear never to have developed the jaded selectivity that usually overtakes even the most enthusiastic newcomers, and to this day they go to so many parties that even some of their best friends are puzzled by it.
John O’Connor, a San Francisco native who belongs to California’s exclusive all-male Bohemian Club, has joined the Metropolitan Club here. Friends and family members say that while he is particularly enamored of Washington social life, it was professionally difficult for him to pull up stakes and move to Washington eight years ago, leaving a successful corporate practice in Phoenix. “The whole nature of the legal profession in Washington was very different for him,” says son Scott, 31. Until his father’s recent job change, Scott adds, “it was driving him nuts.” But on the whole, friends say, he has carried off the role of “Mr. Sandra Day O’Connor” with little discomfort — or at least with “less than you would expect,” in the words of a close friend.
He sometimes assumes an Irish brogue to regale dinner partners with jokes, which he collects. Says Scott, “He’ll jot down . . . the essence of the joke, and then expand on it a little bit, and have it typed up, and he’ll put it in his notebook. I don’t know how many feet of shelf space he’s got now, but he’s got reams and reams of jokes.”
John O’Connor is the entertainer of the family, but Sandra O’Connor too works hard — in a quieter way — at cultivating friendships here. She always remembers, friends say, to ask by name about a son or daughter; after a party, she invariably sends a handwritten note of thanks. “I think she must go straight home and write the note,” says her friend Nina Selin. “It always comes right away.”
Even when the court is not in session, the O’Connors maintain their headlong pace. Brian O’Connor tells of sometimes asking idly, come the spring, what his parents have planned for the summer. “And I will get in the mail a few weeks later, before the summer starts, an itinerary — June through August, to the hour, what she will be doing and my dad will be doing.”
Friends, family and professional associates all offer similar explanations for her enormous energy: “She has an ability to compartmentalize,” says Nancy Ignatius. “When she’s working, she’s working. When she’s playing tennis, she’s playing tennis. When she’s at a party, she’s at a party.”
“I am not a person who carries a lot of tension around,” O’Connor told an interviewer soon after she came to the Supreme Court. “I try to do the best job I can and then never look back.”
“She is not really introspective,” adds her sister, Ann. “I think life has been good to her. She has never had any problems. If you have these little problems, the things that happen to most of us, you spend some of your energy dealing with those things. She doesn’t spend time thinking about herself.”
Beyond confirming the statuses of her gold apprenticeship, O’Connor declined to be interviewed for this article. But friends who are asked about the source of her energy — and her reserve — send you to the Lazy B Ranch, a place almost unimaginably isolated by the standards of jet-age America. The Lazy B, like the famous woman who was formed there, is at once wide-open, unassuming and inaccessible.
The Days run more than 2,000 head of cattle on 198,000 acres in southeastern Arizona and southwestern New Mexico — parched, rocky land where little more than a hundred years ago the Fourth Cavalry fought the Chiricahua Apaches. Until Sandra was 7 years old, there was neither running water nor electricity in the ranch house, which was then a simple, four-room adobe structure. It is 25 miles from the nearest significant town, Duncan, Ariz. — the last eight of them covered by a small road off the main highway, a long, dusty trip through hillocks and fields of creosote bushes, yucca and broomweed.
Sandra, born in 1930, was raised virtually as the only child of Harry A. and Ada Mae Day: Ann and Alan wouldn’t come along until eight and 10 years after her. Harry was the son of a Vermont Yankee who had come west 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. While Ada Mae was one of the rare women college graduates of her day, Harry — who had planned to go to Stanford — was called back to the ranch in the late 1920s to untangle its mismanagement by a partner.
Sandra O’Connor’s earliest experiences, then, were of a rugged life made more austere by the family’s shaky finances. The Lazy B eventually prospered, but depression and drought contributed to a deep, deep financial conservatism that Harry passed on to his daughter. Says Alan Day’s wife, Sue, of the family, “They were raised to believe that if you had money, you traveled extensively, got a good education and lived frugally.” Although the ranch house has been extensively renovated and built onto, Harry Day’s old bedroom still contains the light he read by until his death in 1984 — a bedside lamp sporting a bare bulb.
Ada Mae, on the other hand, loved finery. “You never saw her in pants,” says Ann Fernandez of her mother. “She always wore hose and high heels,” even when she was fetching water from the well. She ordered her clothes from Neiman-Marcus and Saks Fifth Avenue, and each day, when she took Sandra the 25 miles to Duncan to pick up the mail, local women would gather at a corner just to see what she was wearing.
O’Connor’s parents subscribed to the Wall Street Journal, the Los Angeles Times, the New Yorker, Vogue, Time magazine, the Saturday Evening Post and more. Out of such adult fare, Ada Mae would read to her daughter for hour after hour. With no local children to play with, Sandra learned early to seek solace in books, and to make do with her own company.
It is not quite true that, as Ann Fernandez says, O’Connor’s life has been without significant pain. At age 6, having learned to love the grudging Eden of the Lazy B, she was expelled from it: Because there was no decent school within a reasonable distance of the ranch, she was sent to El Paso to live with her maternal grandmother.
Brian O’Connor describes this as “initially devastating” to his mother. Scott says, “My mom would just cry and cry and pine away for being at home.”
O’Connor eventually learned to like El Paso, by most reports, and did so well in the local schools that she skipped two grades. She found a second mother in her strong-minded grandmother, Mamie Wilkey, and was at least able to spend holidays and summers at the ranch. But leaving her parents at such a young age accounts in part, family members say, for her precocity and cemented her tendency to rely only on herself.
She returned to the Lazy B for just one year, in eighth grade; her father told an interviewer that after the births of her brother and sister, she begged to go back to the ranch, distressed at not being “part of the family.” Each day she had to take a school bus most of the 32 miles to Lordsburg, N.M. — an experience she has cited to explain her loathing for busing as a social remedy.
Even in her years away, “she was always very much my dad’s favorite,” says Alan. “Sandra was just the apple of his eye.” Harry Day had taught her, by the time she was 8, to ride with the cowboys, mend fences, drive a truck and fire her own .22 rifle. From him she learned too that work was a seven-days-a-week, dawn-to-dusk proposition.
Day’s politics were decidedly conservative: He couldn’t abide Franklin D. Roosevelt, his children say, and he was one of the few Republicans in all of Greenlee County. Harry Day also preached a distrust of lawyers: The family had gotten embroiled in a lawsuit when Harry took over management of the ranch, and it dragged on for a decade, consuming some half a million dollars before he was able to settle it. “Those lawyers were not going to let that money get away from them,” Harry Day wrote in some brief notes summarizing the ranch’s history.
Scott O’Connor says, “My mom going to Stanford and then on to law school was sort of the fulfillment of my grandfather’s dream. He was going to go to Stanford, so that was part one. And then part two was, she became an attorney, in part because this was never going to happen to us again.”
Her setting out, at the age of 16, was like the traditional quest of the eldest son. Her career, though, would mark her as the daughter of a new age.
“It wasn’t until the ’60s that women began to bring to the forefront the continuing concerns that they had about equal opportunity,” Sandra Day O’Connor told the Saturday Evening Post after her appointment to the Supreme Court.
“I am sure that but for that effort, I would not be serving in this job.”
It is about as close as she has come to endorsing the women’s movement — a campaign in which she has been less than a participant but far more than a bystander. She has been only intermittently a pioneer in a career that is marked, above all, by her capacity to distill the best from the two generations she spans — taking some of the old routes traditionally available to women, such as government work and community volunteerism, as well as the new ones opening all around her. The ruling principle of her career has been preparation; its major thread seems to have drawn her toward jobs that allowed ever more mastery over her surroundings.
Fresh out of law school, engaged to fellow law-review editor John Jay O’Connor III, she found that none of the large California firms would hire a woman, so she went to work as deputy county attorney for San Mateo County. After John’s mandatory military service in Germany, where Sandra worked for the Army Quartermaster Corps, the couple settled in Phoenix. He took a good job in corporate law with an eminent firm — while she opened up her own tiny practice with one other lawyer.
The O’Connors had in the meantime started a family, having their children, with characteristic efficiency, at roughly two-year intervals. After the second child, Brian, was born in 1960, Sandra O’Connor gave up her practice and for five years became — at least technically — a prosperous Paradise Valley wife, mother and homemaker. The third son, Jay, was born in 1962.
O’Connor quickly began working as much as ever — but in volunteer posts in which she could control her hours. She became president of the Phoenix Junior League, kept her hand in as an appointed trustee in the occasional bankruptcy case, a volunteer juvenile-court referee and a writer and grader of state bar exams. She also got involved in local Republican politics, serving as a precinct committeewoman in 1964, when family friend Barry Goldwater ran for president.
In 1965, she went back to work, as an assistant attorney general in Arizona. And in 1969, she was chosen to serve out the term of a state senator who had resigned to take a job in the Nixon administration. In this position — as in her later appointment to the Arizona Court of Appeals — she succeeded a woman who had done well in the job, marking it as “a woman’s seat.”
But O’Connor was truly a trailblazer when, after running for and winning the seat herself in 1970 and 1972, she was elected Senate majority leader in 1973 — the first woman majority leader in the country. She was known for “an immense negotiating skill,” says Phoenix lawyer Bud Jacobson. “She had a mind like a steel trap,” says Sen. Pete Corpstein, who was then in the House. “She drove a hard bargain, and didn’t cave in.”
Much was made, during O’Connor’s Supreme Court confirmation hearings, of her purportedly pro-abortion votes as a state senator. She managed to explain away the appearance of having supported abortion rights — she said she voted against a resolution calling for a pro-life amendment to the Constitution, for example, because it was an extraneous rider to an unrelated bill. But what was less well understood was how thoroughly her record marked her, in Arizona terms, as a mainstream Republican moderate.
Says Democratic U.S. Sen. Dennis DeConcini, then also active in state politics, “She was considered, by the Democrats, a progressive Republican . . . willing to address mental health, willing to address education issues, and not just slam the door.”
“I don’t know anybody, Republican or Democrat, who ever thought Sandra was a right-wing Republican,” says Jacobson, a Democrat.
Arizona has always had more than its share of Evan Mecham Republicans, but they would not dominate the party until the late 1970s. Earlier, the Republican establishment, in the words of former Democratic governor Bruce Babbitt, “had been economically conservative, but not out on the far right on cultural issues at all.” And Sandra O’Connor, as a pillar of her community, chaired the board of the Heard Museum and was active in support of the local public television station, a student-run effort at Arizona State University. Her husband was also involved in such establishmentarian good works as the Legal Aid Society; he was a popular man to help out with local fund-raisers and even emceed two affairs for the local Planned Parenthood chapter. Today, Sandra O’Connor’s sister is on the board of Planned Parenthood’s Tucson chapter.
O’Connor supported legislation to make family planning services universally available, to make community-property laws fairer to women, and to restrict state aid to private schools. Initially, she supported the Equal Rights Amendment.
Her approach to politics foreshadowed her approach to the Supreme Court. Says former senator Ray Rottas, now state treasurer, “She was strictly an issue-oriented person . . . If the program was good for the state, it didn’t make a whole lot of difference to her which side initiated the issue.”
The one area where O’Connor notably anticipated the conservative revolution of the 1980s was in her belief in minimal, fiscally conservative government. “She used to say the legislature should meet every five years, and that there ought to have to be a three-quarters majority to pass anything,” says Jacobson. One of her major legislative initiatives was a proposal to cap state spending as a percentage of income — an idea that came from Gov. Ronald Reagan’s efforts in California.
She was not always popular among her colleagues, whose bills she rewrote when they didn’t satisfy her exacting standards. “She had frustration in the state legislature, to some degree, at the skill some of her colleagues occasionally lacked,” says Scott O’Connor. Babbitt, who eventually appointed O’Connor to the Arizona Court of Appeals, says that as a senator she could best be termed a technocrat. “She was not a clubhouse politician,” he says. “She was a little incongruous at a political rally, standing in front of the troops — much more at home in a committee room than at a rally.”
At the end of her second full term, she resigned from the Senate for a judgeship in Maricopa County Superior Court. Many saw it as a step down for her, but it was a move toward an arena in which she could increase her control.
She earned a good reputation as a tough trial judge who ran a tight ship. “She didn’t have much use for lawyers who came and said, ‘This is the right thing to do,’ ” says Hattie Babbitt, a Phoenix lawyer who tried her first case in O’Connor’s courtroom and urged her husband to promote O’Connor. “She wanted a lawyer to say, ‘This is the right thing to do, and here are 25 pieces of precedent to support it.’ ” She gave brutally short shrift to attorneys who were unprepared, and in biennial bar evaluations earned her lowest marks in the area of “courtesy to litigants and lawyers.”
She turned down urgent pleas from the party establishment to run for governor in 1978, despite the fact that she had grown tired, in Scott’s words, of “all the shenanigans of the primary trial court level.” This appears to be the point where she turned decisively away from politics. Says Barry Goldwater, one of those who urged her on, “I was never convinced she was thinking about it seriously.”
More to her taste was the offer, a year later, of a seat on the Arizona Court of Appeals. “It was so much more cerebral” than the lower court, says Scott. “You were dealing with an intellectual exercise rather than with circumstances beyond your control.”
Interestingly, though, O’Connor never sought out the seat on the appeals court — without which she could not have been a candidate for the Supreme Court a year and a half later, when President Reagan was searching for a qualified woman. “She didn’t send out any signal of interest, much less send in an application,” former governor Babbitt says; he solicited her application. “There wasn’t any evidence of the raw fire of ambition,” Babbitt adds. “I just think that in this case, the intense part of her ambition is focused against an internal standard rather than an outside goal or standard.”
Says Hattie Babbitt, “I don’t think it would be fair to say that, for Sandra, drive was one of those things that meant she must get to a specific goal. The kind of drive she has is, she’s very smart, and very organized, and she would always want to be very good at what she does. You can do that and not be in the right place at the right time. But she did and she was.”
On July 6, 1981, at the age of 51, Sandra Day O’Connor was offered what is to most lawyers a life’s dream. Of her outward reaction, Brian O’Connor says, “She was so reserved and calm and just, ‘Well, let’s see what this is all about.’ ”
“You talk about cramming for an exam,” says Scott O’Connor. “You’ve never seen somebody cram the way she crammed” for her Senate confirmation hearings. Then — with scant background in constitutional law, and with no time to practice her strokes — O’Connor began reading briefs for her first term on the court even before the hearings ended and the Senate confirmed her, 99-0.
During that first term, court observers sensed she was uncomfortable in her new job. At oral arguments, O’Connor often read what seemed to be questions prepared in advance and appeared unwilling — or unable, some detractors said — to ask the obvious follow-ups. Scott O’Connor confirms that the early months of the job took a toll, though one that went unspoken. “At the end of the first term. . . you could just look at her and see she was tired. And that kind of shocked us, because we had never quite seen her that way. . . That might have been the only indication that, yes, it was a big burden on her. And that she was worried about pulling her weight and all of that.”
But by the 1982 term, court-watchers noticed a new confidence in her questioning. Says Scott, “By the end of the second term, she just was herself again, had figured the system out, had gotten into the routine, and realized that she was going to make it and do just fine.”
She was ready to play.
Now O’Connor is an insistent questioner who can skewer an attorney she feels is evasive or unprepared. While she is not known for a light touch, she is capable of an occasional excursion into whimsy, as when Chief Justice William H. Rehnquist announced last June that she would render the court’s decision in a case called Volkswagenwerk Aktiengesellschaft v. Schlunk. He pronounced the case in such elaborately correct German that she responded, with a sheepish smile, “Jawohl.”
But beyond her performance in the theatrical forum of oral arguments, it is difficult, even after almost eight full terms, to generalize about O’Connor’s tenure on the court. Few have called her a brilliant theoretician on the order of Oliver Wendell Holmes or an eloquent writer, as Antonin Scalia has shown he can be. Legal scholars say she is a conservative along the lines of former justice Lewis F. Powell Jr. and the late John M. Harlan, whose careers were distinguished by a devotion to pragmatic resolution of the issues before them.
She writes 16 or 17 opinions a year, on average, along with 20 dissenting or concurring opinions — although for O’Connor, as for most justices, “writing” usually means editing a draft written by a clerk. She focuses closely on the legal analysis to make sure it satisfies her, paying less attention to stylistic detail. Critics say her opinions have no passion, display no lofty vision and lack grace or personal tone; even when she writes in dissent — a position that traditionally enables a losing justice, with no need to preserve a majority, to let loose — she rarely deviates from her characteristic restraint.
She has been as hard-line as any conservative member of the court on law-and-order issues. And, as widely predicted on the basis of her state government service, she has been a firm champion of state power against encroachment from the federal government, above all federal courts. She has been especially impatient with federal judges intervening to release state prisoners who claim their constitutional rights have been violated. For her, this is a double sin — letting guilty criminals go free and stepping on state judicial turf.
In an early sex discrimination case, however, O’Connor showed that she would be willing to break ranks with conservatives on civil rights and other social issues. That case, in which she wrote her best-known opinion of her first term, involved a state-supported university in Mississippi that barred men from its school of nursing. O’Connor, giving the liberals her key vote, wrote a 5-4 opinion saying that policy violated the constitutional guarantee of equal protection. Laws discriminating on the basis of sex, she wrote, would be allowed only if there was an “exceedingly persuasive justification” for them. Women’s groups took it as a sign that O’Connor was more ally than enemy in the area of sex discrimination — a hope that has mostly been borne out.
At the outset, O’Connor seemed a certain ally of her old Stanford Law School classmate Rehnquist and of then-Chief Justice Warren E. Burger on the conservative wing of the court, voting more often with them during her first term than with any other justices. But her alignment with them seemed to lessen each term. While continuing on balance to chart a conservative course, she emerged as a justice who looked to resolve each case and no more, one with no overarching philosophy that might preordain a result. She drifted toward alignment with the centrist Powell, voting more often with him, by the 1985 term, than with Rehnquist or Burger. While Powell remained more liberal than O’Connor, his approach coincided with her own view of what the court, and each justice, should do to decide a case.
Former clerks praise what they say is O’Connor’s genuine willingness to consider any argument her clerks bring to her. And because she does not screen her clerks for any particular ideology, one or more of her clerks each term is usually more liberal than she is. If in the end she disagrees, she will say quietly, almost apologetically, “Well, I’m sorry, but I just can’t agree with you.”
She seems suspicious of bold solutions from either the left or the right: In cases where she votes with Rehnquist or Scalia, at one end of the spectrum, or with liberal Justice William J. Brennan Jr., at the other, she often writes a concurring opinion that shows a different reasoning — trying to find a middle ground and attempting to narrow the scope of the ruling.
In a 1988 case asking whether murderers under 16 should be executed, for example, O’Connor declined to join the opinion written by Brennan, who had four votes to bar such executions. O’Connor concurred but found a way to narrow the issue so that she did not categorically rule out such executions in the future.
In cases concerning the First Amendment’s often contradictory admonitions not to “establish” religion or inhibit it, O’Connor has often sided with liberals in the face of government attempts to restrict religious expression — such as when the Air Force refused to let a psychologist wear a yarmulke. But she has stood with the conservatives to allow government funding of programs that may aid religious institutions.
O’Connor, who was baptized in the Episcopal Church and attends Sunday services at the Bethlehem Chapel in the Washington Cathedral, has characteristically searched for a middle ground in this difficult area. In a 1984 Rhode Island case involving a government-sponsored Nativity scene,O’Connor joined a 5-4 ruling by Burger allowing the display, but she developed in a separate opinion the idea, since adopted by the court, that the test of the constitutionality of government actions should be whether the government was “endorsing” a religion, not simply whether it was doing something that might aid religion in some way.
O’Connor’s centrist approach is perhaps best demonstrated in the area of affirmative action for women and minorities, in which she has formed a majority endorsing the use of affirmative action but only where there is clear evidence of past discrimination and where the program is “narrowly tailored” to remedy the wrong.
In the most sensitive area of all, abortion, O’Connor seems to have been searching for middle ground in an area where few believe it exists. She has criticized the legal analysis underlying the 1973 Roe v. Wade ruling establishing a constitutional right to abortion. But, despite ample opportunity, she has never joined dissenting opinions calling for the states to be given the power once again to ban abortion.
With the moderate Powell’s retirement two years ago, and his replacement by the staunchly conservative Anthony M. Kennedy, O’Connor became the pivotal vote on abortion and several other emotionally volatile issues on which the rest of the court is divided 4-4. In the present term alone, she may cast the deciding vote in closely watched cases concerning the execution of killers who are mentally retarded or under 18; in a new case involving public displays of a Nativity scene and a menorah; and, of course, in the abortion case from Missouri.
And the division of the court gives not just her vote but her reasoning a controlling importance in any 5-4 case where she writes her own concurring opinion instead of joining the plurality opinion. In the affirmative-action area, for example, Brennan might have O’Connor’s vote as his fifth. But if she does not agree with his reasoning and writes a separate concurrence, lower courts will look to her opinion rather than Brennan’s for guidance, knowing that as long as they follow her views, their decisions will be upheld by the court.
The law, in such a situation, will be whatever Sandra Day O’Connor says it is.
“Whether we will lead only a family, or a handful of friends, and where and how we will lead is up to us, our views and our talents,” O’Connor told a graduating class at her alma mater in 1982. “But the hour will come for each of us, and because of this, we surely must also know that the very nature of humanity and society, regardless of its size or complexity, will always turn on the act of the individual and, therefore, on the quality of that individual.”
With Sandra Day O’Connor’s hour at hand, American society will, in a very real sense, find itself turning on the quality of her judgment. It is ironic that the hour should have come at a time when her legendary control has been, if not threatened, at the very least challenged.
In the past few months, O’Connor has seen the deaths of her mother and a beloved uncle. O’Connor presided over a family service, in April, to scatter her mother’s ashes at the top of Round Mountain, which overlooks all of the Lazy B. “That’s the only time I’ve ever seen her shed a tear,” says her sister-in-law, Sue Day.
And since October she has confronted the shock of breast cancer — and with it the loss of a breast, the miseries of chemotherapy and the suddenly uncertain future that faces anyone who has had cancer. It has been, her sister says, “the first major crisis of her life.” The justice has told friends that the two weeks between the time she learned she had cancer and the time she decided on her treatment were the worst of her life: The language of doctors, with all those possible outcomes and vague prognoses and admissions that they have no answers, only odds, is so different from the language of lawyers.
She dealt with it, though, as she has dealt with other hurdles: “She took her cancer as a challenge,” her sister continues, “learning everything she could about it, reading every book, talking with people and making the necessary decisions about her treatment and options.”
The night before her scheduled mastectomy last October, O’Connor kept a long-standing commitment to deliver a lecture at Washington & Lee University, making the seven-hour round trip to Lexington, Va., by car.
Two weeks after the surgery, she was out on the golf course, angry at herself when her drives lacked their usual power. Three weeks after it, she was playing tennis, grimacing a little when she had to hit an overhead. One morning last December, in the course of her chemotherapy treatment, she was heard to mention that she felt a little tired. “Welcome to the human race,” her husband replied.
Says her friend Jean Douglas, “You want to help her so much, and she says, ‘Oh, no, I’m fine, there’s nothing wrong’ . . . She keeps everything quiet. She wants to keep everything to herself. It gives you quite a stoic person.”
Nancy Ignatius, who has herself struggled with breast cancer, agrees. “I think Sandra would rather not be seen to need help . . . There’s not a lot that one can do for Sandra.”
But at least once, she asked. The day after her surgery, O’Connor’s doctors told her there was a small spread of cancer to her lymph nodes, requiring chemotherapy. Ignatius returned home from an engagement to find a message on her answering machine saying, simply, “Come. I need you.”
After her chemotherapy, O’Connor got a clean bill of health. “All the tests have been negative and the prognosis for total recovery is excellent,” she said in a recent statement through a court press officer. “I do not plan to leave the court.”
Says her sister, “She feels her health is good now, and she doesn’t spend time worrying about it but instead has gone on with her life as if it never happened.” Her attitude, says Ignatius, is, “It was a thing that started and ended and now one goes on to something else.”
For Sandra Day O’Connor, “something else,” in the late spring of 1989, is the great opportunity, or burden, of being the most powerful woman in the country. Her decisive position in the center of the court will last only as long as the court’s composition remains the same: It seems almost certain that President Bush will have the chance to replace one of the court’s elderly liberals, and when he does, O’Connor will become overnight just another member of a conservative majority — one whose narrowly focused concurrences will mean nothing in a 6-3 vote.
In O’Connor’s shoes, a different man or woman might be tempted to seize the moment: History abounds with Supreme Court justices, from James C. McReynolds to Hugo L. Black, who have hankered visibly to leave their mark on the law of the land. But now that her own time has come, Sandra Day O’Connor seems inclined to deny it — and possibly to resent it.
Friends and acquaintances say she is angered by the blizzard of mail she has received on abortion. Attempts to influence a justice’s vote, she believes, show a profound misunderstanding of how the court works and of what its role is.
“I don’t think it affects her,” says her son Brian of the pressures bearing in on her now. “I don’t think it has any effect one way or the other.” But friends say she bridles at being called the swing vote — and especially at any suggestion that, however temporarily, her word carries more weight than another justice’s. And it is entirely typical of her to be unswayed by the passions around her, to quarrel, instead, with the premise of those passions.
She seems likely to meet this latest, largest challenge, then, as she has met all the others: industriously, equably and without letting anything break her stride.
Last Christmas, according to Scott O’Connor, the justice’s favorite gift, from her husband, was a set of full-body Gore-Tex rain gear. She wanted it to wear on the golf course, so that even the elements couldn’t stop her.
“Her time is so precious,” says Scott, “that she’s not going to let a little thing like rain get in the way of her exercise.”
During oral argument April 26 in Webster v. Reproductive Health Services, the Missouri case challenging the court’s landmark 1973 abortion ruling, one lawyer was instructing the Supreme Court on the history of abortion bans. Historically, he said, the line was drawn at “quickening or viability.”
“Well, there is a difference, is there not, between those two?” asked Sandra Day O’Connor, the only justice for whom “quickening,” when fetal movement is first felt, is more than an abstraction.
In a confluence of history, politics and serendipity, the court’s only female member will likely cast the deciding vote this term on whether the right to abortion should be severely restricted or overturned.
O’Connor, who spoke in her 1981 Senate confirmation hearings of her “abhorrence” of abortion, has indicated that she would allow states to substantially restrict access to abortion. Despite extensive writing on the subject, however, she has left unclear just how far she thinks such restrictions may go — and whether she believes there is any fundamental right to abortion. At times she has called such a right a “limited” one. At other times she has carefully prefaced her discussions by saying that she was assuming for the sake of argument that such a fundamental right exists — and even then said substantial restrictions were permissible. But while she has written a blistering attack on the analytical framework of Roe v. Wade, the 1973 ruling that established a woman’s right to abortion, she has not joined dissenting opinions by the other conservative justices calling to allow states to ban abortion.
In a 1983 dissent, she wrote that the state “has compelling interests in . . . protecting potential human life” from the moment of conception — not simply from the time of viability, as set forth in Roe. State regulations, she said, need only be “rational” and should be upheld unless they impose “an undue burden on the abortion decision.” She defined “undue burden” as an “absolute obstacle” or “severe limitation” on abortion, not something that “may inhibit abortions to some degree.” O’Connor further argued, in considering a regulation that imposed a 24-hour waiting period before an abortion, that even if the regulation was assumed to be unduly burdensome, the state’s “compelling interests” justified it.
Under these standards, O’Connor presumably would uphold at least some of the restrictions at issue in the Missouri case before the court, such as a ban on abortions in public facilities. Her options in the case range from an affirmation of a fundamental right to abortion (unlikely, in the view of most court observers) to a partial upholding of Missouri’s restrictions, all the way through to a complete reversal of Roe v. Wade. O’Connor’s generally cautious approach to decision-making, and her questions at the oral argument in April, indicate she might prefer to resolve the Missouri case without confronting Roe, waiting for another case, and perhaps a sixth vote, to overturn or dramatically undercut the 1973 ruling.
As O’Connor has pondered her position in Webster, she has been looking forward to the birth of her first grandchild in October. In pointing out the coincidence, the father-to-be, Scott O’Connor, says that he and his wife “struggled for three years to get pregnant,” a struggle his mother followed closely. “It’s ironic that the issue is all the people wanting to terminate pregnancy, and we couldn’t do it without trying for three years and lots of medical help,” he says. “We spent three years trying to do something that half of America is trying to prevent.”