I personally enjoyed Jeff Goldstein’s post on Sandra Day O’Connor prompted by Cathy Young’s commentary on the following bit of foolishness from the pen of Dahlia Lithwick. Yes, that’s quite a route. UPDATE: Here’s Ms. Heather’s opinion.
July 2, 2005
Robed in Mystery
By DAHLIA LITHWICK
Charlottesville, Va.
IN the fall of 1992, Justice Sandra Day O’Connor spoke to my first-year law school class at Stanford University, her alma mater. My class, which was almost 50 percent women – black, Hispanic, gay and disabled women among them – received her warmly. She is, after all, a feminist pioneer. The first woman on the United States Supreme Court, Justice O’Connor broke through glass ceilings the way women of my generation broke nails. She, more than any other woman in the legal profession, proved that we could be whatever we wanted.
Which is why her speech was so stunning: it was curt and unsentimental and – if recollection serves – it concluded with a lament about how annoying it is to receive late-night telephone calls from death row petitioners with only moments left before their executions. I left the hall furious, wondering how a woman could be so heartless.
She shocked me again in the fall of 2000, when I was covering oral arguments at the Supreme Court in Bush v. Gore. Justice O’Connor, 70 years old at the time, was listening to an argument about how to count the notorious “butterfly ballots” that had confused Florida voters, especially the elderly. Her characteristically tart reaction to the voters’ difficulties- “For goodness’ sakes, I mean it couldn’t be easier” – crushed any liberal dreams that some heightened feminine compassion would decide this case for Al Gore.
Suffice it to say, Justice O’Connor is a huge mystery to most women of my generation. How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence in the 2000 case of United States v. Morrison, for instance, where she joined with the court’s conservatives to invalidate the Violence Against Women Act, or to teenagers facing the death penalty in Roper v. Simmons last fall? How could someone who so embodies minority advancement not use her new power to pull everyone else up with her?
Ruth Bader Ginsburg made more sense to my female colleagues. She used her law degree to advance women’s rights before she came to the court and continues to do so today. Justice O’Connor always seemed like a fullback in a lacy jabot – testy and aggressive and with the expectation that feminism means stop whining and do for yourself.
Justice O’Connor’s life story goes a long way toward explaining that philosophy: In the 2002 account of her childhood that she wrote with her brother, she paints herself as a tough old Arizona cowgirl who made her own luck through grit and self-reliance at a time when women considered just finding someone to marry the fulfillment of every fantasy.
As a small child she mended fences, shot rifles, partied with a bobcat and lived without indoor plumbing or electricity. I suspect she thinks the rest of us are spoiled rotten. Throughout her career, whenever doors were shut on her, she just painted herself a new one and walked through. When she was offered nothing better than a legal secretary’s job upon graduating law school, she found work as a civilian lawyer in the Army, then opened her own law firm in a shopping mall. When she stopped working to raise her three sons, she filled her free time writing questions for the Arizona bar exam, advising the Salvation Army, volunteering with minority schoolchildren and becoming involved in state Republican Party politics.
True, her conservative roots run deep, as she has proved innumerable times. But it’s somehow impossible for me, both as a woman and as a lawyer, to stay mad at her. Because try as she may, she can’t suppress an inner softie, and it has come to animate so much of her jurisprudence. Justice O’Connor’s swing votes in so many of the most contentious areas of the law – religion, abortion, affirmative action, for example – show a sneaking strain of empathy for the outsiders, the disadvantaged, for those who feel coerced or shamed.
Justice O’Connor’s jurisprudence is narrow and fact-centered. Sometimes the lines she draws are visible only to her – something that has driven her colleague Antonin Scalia to near apoplexy on more than one occasion. But her position as one of the last real open-minded moderates – the tiebreaker in a generally polarized court – reveals how powerfully those skills in diplomacy, compromise and pragmatism that she developed as an early feminist can bear fruit.
Ultimately, the women I know have come to love Justice O’Connor not just for what she is, but also, perhaps grudgingly, for what she has done as well. She has showed us that she could be more than just another justice on the court. She modeled fearlessness for those of us who still feel law is a man’s game. And she showed us that greatness can be achieved by rolling up the sleeves of your black robe, and doing justice, one small case at a time.
Dahlia Lithwick is a senior editor at Slate.