Julie Cohen is the director of the Academy Award-nominated documentary “RBG,” along with her filmmaking partner Betsy West.
Intelligent, ambitious women of O’Connor’s vintage were thwarted at every turn. A Stanford Law Review editor in the top 10 percent of her class, she couldn’t even get an interview with the big firms that recruited on campus in the 1950s. When she wangled a meeting in the Los Angeles offices of Gibson, Dunn & Crutcher, Thomas writes, a partner told her “our clients won’t stand for” being represented by a woman and suggested a secretarial job instead.
By the time of the poolside chat, O’Connor had racked up an impressive series of achievements against the odds. She’d been the majority leader of the Republican-controlled Arizona state Senate and a state judge at the trial appellate level. But the doors slammed shut earlier in her career were not easily forgotten.
Sexism stings. And it stung just as harshly for a Phoenix country club Republican like O’Connor as it did for a liberal Brooklynite like Ruth Bader Ginsburg.
Only a few weeks after that pool party, President Ronald Reagan made good on a campaign promise to appoint a woman to the Supreme Court. O’Connor got the call and breezed through her confirmation with a 99-to-0 vote.
That O’Connor found herself the highest-ranking woman ever in American government was no accident. Thomas vividly sketches the attributes she used to clear the high barriers to female ascendancy: a knack for brushing past insults, relentlessness belied by a pretty smile, an almost superhuman level of energy and, not least, a heroically supportive husband. John O’Connor was a successful lawyer in his own right but willing to take a back seat if it meant helping his wife achieve her lofty goals.
This list of assets will sound familiar to Ginsburg aficionados. (Though unlike the kitchen-averse RBG, SDO could whip up a tasty salmon mousse when the need arose.)
While Ginsburg in her pre-justice days distinguished herself by fighting to secure gender equality under the Constitution, O’Connor was no flaming feminist. If she had been, the Reaganites surely would have looked elsewhere. As a politician anxious to distance herself from women’s libbers, she addressed a Rotary Club with the evocative line: “I come to you with my bra and my wedding ring on.” In the state Senate, O’Connor played a key role in striking down hundreds of Arizona laws discriminating against women, but she didn’t put her political weight behind passage of the Equal Rights Amendment. After the Supreme Court’s 1973 Roe v. Wade opinion, she voted against a resolution calling for an antiabortion constitutional amendment but supported key measures restricting women’s access to abortions.
It was the same style of compromise — some might say fence-straddling — that O’Connor would employ as a Supreme Court justice. Some legal scholars have criticized her for seeking to decide cases on narrow grounds, leaving larger constitutional issues unresolved. In Thomas’s more generous interpretation, O’Connor’s judicial “minimalism” flowed naturally from a realpolitik she’d honed as, well, a real politician.
In Wygant v. Jackson Board of Education (1986), four justices wanted to throw out a Mississippi plan to lay off white teachers with seniority before their less-experienced black counterparts, and four favored preserving the plan, designed to redress the city’s clear history of racial discrimination. O’Connor, finding herself in the middle and undecided, initially proposed sending the case back to the lower court to be reargued. Eventually she joined most of Justice Lewis Powell’s majority opinion striking down the layoff plan, but in her concurrence she left the door open to constitutionally permissible affirmative action.
O’Connor went on to write key majority opinions on affirmative action herself. Adarand Constructors, Inc. v. Pena (1995) ruled that affirmative action plans must be subjected to the most stringent level of judicial scrutiny, though O’Connor made clear that not all affirmative action is untenable. Later in Grutter v. Bollinger (2003), she wrote for the majority to uphold an affirmative action plan at the University of Michigan Law School. Thomas emphasizes the court’s role in helping the American people, who “are divided and feeling their way,” through tough issues. “The Court is an essential part of a long process of melding attitudes and mores with the law of the land.”
O’Connor was temperate on abortion rights cases, too, resisting numerous attempts by her conservative colleagues to strike down Roe but not issuing the ringing endorsement of reproductive freedom that liberals might have favored. Her split-the-difference standard: States can regulate reproductive rights so long as their rules don’t place an “undue burden” on a woman seeking an abortion. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which she co-authored with Justices David Souter and Anthony Kennedy, O’Connor’s “undue burden” standard became the law of the land.
Interspersed with the legal analysis in “First” is lighter fare: camaraderie and sniping among the justices, even a scene where two clerks come to fisticuffs in a Supreme Court fountain — over an abortion rights case.
Some anecdotes are so juicy I found myself checking the footnotes to see where Thomas got them. Yes, as in most Supreme Court literature, there’s plenty from the clerks. But some of his best material comes from interviews with former and sitting justices. And he makes strong use of the notes scrawled by justices in conference or in the margins of draft opinions. (“Very tent[ative]!!!” an apparently irritated Justice Harry Blackmun wrote by O’Connor’s name in his Wygant conference notes.)
But with an institution as insulated as the Supreme Court and a protagonist as discreet as O’Connor, there’s a limit to how far inside one can get. As much as we’d love to hear what the first female justice was thinking as allegations of sexual harassment surfaced during Clarence Thomas’s confirmation hearings, the author can only speculate. “She was surely disheartened” by Anita Hill’s testimony, he writes. He does provide a contemporaneous snippet from John O’Connor’s diary about a political cartoon depicting Clarence Thomas in judicial robes with his hand on Justice O’Connor’s knee. “It really is a funny cartoon,” John wrote. (Actually, it wasn’t).
“First” gives us a real sense of Sandra Day O’Connor the human being. Cinematic scenes from her upbringing on the family ranch find young Sandra changing a tire all by herself as she struggles to get the chuck wagon to the cowboys before cattle-branding time. Thomas shows how well her flintiness served O’Connor in adulthood. She faces down Stage 2 cancer and a mastectomy with minimal self-pity, doing chemo on Fridays so she could be back on the bench for Monday oral arguments (a regimen passed on to the equally flinty Ginsburg when she too got cancer).
Thomas also reveals O’Connor to be likable and quirky, a woman who yells “Hot diggity dog!” when she hooks a trout and gets a charge out of Reese Witherspoon in “Legally Blonde.” The scenes of O’Connor retiring early to help care for husband as he struggles with Alzheimer’s are poignant; the news of her own diagnosis with that same brutal disease even more so.
A major biography like “First” draws its power not only from the people and events it depicts but also from the culture into which it’s launched. The white-hot polarization in the age of Trump makes O’Connor’s preference for cool civility and compromise seem especially appealing. And this era’s struggle for women’s rights, energized by the #TimesUp and #MeToo movements, makes this the right time to take stock of the country club cowgirl who managed to climb higher than any American woman had before.
Thomas gives O’Connor the credit she deserves. Even if her sometimes-pallid support for Roe v. Wade makes you uneasy and her ruling with the majority to cut off the Florida recount in the 2000 Bush v. Gore case makes you nauseous, Thomas suggests, you owe her some respect. Without O’Connor’s crucial fifth votes, both legalized abortion and affirmative action could well have lost their protection under the Constitution. And her strong work through a quarter-century on the Supreme Court paved the way for Ginsburg, Sonia Sotomayor, Elena Kagan and the others who will follow.
“The first step to getting power is to become visible to others, and then to put on an impressive show,” O’Connor said in a 1990 speech (later quoted admiringly by Ginsburg). “As women achieve power, the barriers will fall . . . And we’ll all be better off for it.” To which so many women — millennial and older, progressive and conservative — might say in unison: “Amen, sister.”
By Evan Thomas
Random House. 476 pp. $32