
The above picture, of Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg waiting to address a group of congressional women in 2001, heads Linda Greenhouse's review, in NYRB, of a new biography of O'Connor by Evan Thomas. It's a poignant photo, I think, since, in the intervening 18 years, one of the two has sunk into dementia and the other, beset by geriatric health complaints, is trying to hang on till there is a Democratic president to fill her position. They were looking hale and alert in 2001, dressed similarly, despite their frequently opposing views, in business attire and sensible shoes. I like how O'Connor was caught with her heel out, airing her foot. Of course she's the one with dementia. One of the details in Greenhouse's review concerns how Thomas, interviewing O'Connor at the start of his project, immediately realized that she would not—could not—be a significant source for his book: too far gone in the disease, which also marred the last 20 years of her husband's life, a grim circumstance that caused her to retire from the Court before she otherwise might have.
I had not known that O'Connor was the author of a memoir about her youth, Lazy B: Growing Up on a Cattle Ranch in the American Southwest, which did provide Thomas with a source for information about her early life, summed up by Greenhouse:
Thomas draws on [Lazy B] to describe how formative were the values of self-reliance and attention to duty that her stern father, Harry Day, imparted to his oldest child as he initiated her into the rigors of life on a sprawling, isolated, and nearly barren ranch near Arizona's border with Mexico.
A former president of the Junior League, she played golf and tennis at the Paradise Valley Country Club. There was not a whiff of the counterculture, or even of explicit feminism, about her.
I am not sure that there isn't in the spaces of the transition between paragraphs the whiff of a contradiction, inasmuch as O'Connor was apparently initiated into the rigors of life on the forbidding ranch, perhaps in the forenoon, before showing up for her evening lessons in golf and tennis at the Paradise Valley Country Club. Well, she was a Republican, privileged but flinty. Barry Goldwater was a family friend. She could make high scores on standardized tests and landed at Stanford Law School, where she was, improbably, the love interest of classmate William Rehnquist. Greenhouse reports that Thomas had access to letters Rehnquist wrote Sandy Day, including one that included a proposal of marriage and the sentence, "I know I can never be happy without you." Sandy turned him down. Years later, when President Reagan appointed her to the Supreme Court, in 1981, Rehnquist was already serving as an associate justice, and the rookie O'Connor, probably hoping for a mentor, was put off by her old boyfriend's "aloofness." Despite similar voting records, their interpersonal relations were ever cool. No one knows where love goes but when it goes it's gone, gone, gone. I'm not sure whether it's sad or reassuring to reflect that even the lives of the high and mighty are evidently blighted by the kinds of disappointments and resentments that, viewed from a disinterested perch, seem trivial and petty.
Greenhouse mentions that O'Connor's appointment came early in Reagan's first term, after he had promised during the campaign to put a woman on the high court. It seems like an odd promise for Reagan to have made, too much like affirmative action. It's a court-watcher's parlor game to speculate on the possible connections between the circumstances of O'Connor's appointment and her centrist jurisprudence on affirmative action, which came to the Supreme Court after it had become somewhat more conservative with the retirements of Thurgood Marshall and William Brennan. By 2003, hers was the swing vote, and, to the bitter disappointment of conservatives in a case involving the University of Michigan's law school, she ruled that in admissions policy race could be considered as one factor among others for a period, she suggested, of roughly 25 more years. I don't credit the suspicion that her appointment as the first female justice had anything to do with her decision. Rather, as Greenhouse suggests, she was simultaneously suspicious of and sympathetic to the view that, if schools and businesses thought there was value in having their student body and work force "look like America," the law should cut them some slack, but not too much, or forever.
O'Connor is probably most famous, or infamous, for the Court's decision in the Planned Parenthood v Casey case, where she once again had the swing vote and could have taken a long stride toward overturning Roe v Wade. Instead, she wrote, with Justices Anthony Kennedy and David Souter, the majority opinion—it was 5-4—upholding the right to an abortion established in Roe while allowing states to impose restrictions that did not create "an undue burden" to exercising that right. It's probably fair to say that pro-choice activists were unhappy but relieved with the decision and that the other side was unhappy, surprised, and infuriated. Actually, O'Connor's position here might have been predicted by those who had followed her career in the Arizona state legislature, where she was not a reliable vote for either side on policy relating to abortion.
In an earlier case, argued and decided soon after she had joined the Court, O'Connor had first infuriated conservatives by joining the liberals in striking down an Alabama law establishing "a moment of silence" at the start of the public school day. In a separate concurring opinion, she wrote it was impossible to avoid the conclusion that Alabama was attempting to endorse prayer in public schools. Greenhouse relates here a couple of interesting sidelights gleaned from Thomas's book. One of O'Connor's law clerks, during the period that the Court was deliberating, urged her to assume the "good faith and proper motives" of state legislators. O'Connor, who had served in Arizona's state legislature, told him that she would not, and that state legislators were among "the most venal, self-important people you can imagine." The other detail is interesting mainly on account of her calculations regarding her career. She had been mentioned as a possible candidate for Chief Justice and realized that her decision in this case burned bridges to the powers that had landed her on the high court in the first place. Sure enough, a year later Chief Justice Burger retired and Reagan had to elevate someone. He chose Sandy Day's old boyfriend, William Rehnquist.
Greenhouse, the former Supreme Court correspondent for the New York Times who now teaches at Yale Law School, is a woman not at all sympathetic toward the high court's rightward turn, and though I may be wrong I think it's possible to detect in her review a certain determination to celebrate the first female justice as the kind of old-fashioned conservative that liberals may regard these days with nostalgic fondness. Thus she lingers on the admittedly high-profile cases in which O'Connor deviated, by a foot or several yards, from conservative orthodoxy. Or possibly it just seems that O'Connor was less doctrinaire than she was, because she stayed about where she'd always been while the Court lurched to the right, placing her eventually in the middle and endowing her with an ersatz aura of reasonableness. The truth is that she voted with the bloc of conservative justices—Rehnquist, Antonin Scalia, Clarence Thomas—roughly eighty percent of the time. I don't think Greenhouse conveys this fact, but she does take up the abomination of the Court's decision in Bush v Gore, and is as engaging and informative on this topic as she is on others. I remember that whatever network I was watching on Election Night, 2000, called Florida for Gore relatively early in the evening and then of course retracted, but I guess the whole election had been called for Gore by at least one network—the one O'Connor was watching at a party that, upon Gore being named the winner, she stomped out of after announcing that this was a "terrible" result. Her husband had to explain to the other party attendees that she had been hoping to retire but did not want a Democratic president to appoint her successor. Wouldn't you know, the Florida recount on which everything depended then came to the Supreme Court, and O'Connor cast the crucial vote handing the election to Bush. She also inserted into Justice Kennedy's draft decision the weaselly phrase essentially admitting that the Court's "reasoning" was ad hoc and should not be regarded as precedent in any subsequent election dispute: the unsigned decision was, she wrote, "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
In this one case, then, O'Connor and her fellow conservatives were all in favor of the big bad federal government telling a state how to resolve its disputed election. Given that O'Connor's rooting at the election night party had been reported in the press, including the degree to which her preference was dictated by personal desires, she could not very easily retire to Arizona now that she'd gotten Bush into the presidency. So she labored on till 2006, steadfastly avoiding the president and all White House events as her husband sank deeper into dementia. He is, by the way, a somewhat pitiable and forgotten figure. He'd been a highly successful Arizona lawyer, but seems never to have adjusted to different circumstances in Washington, D.C., and then, eclipsed by his wife the Supreme Court justice, he starts noticing his own declining mental abilities, which he heartbreakingly documented in a journal that Thomas got access to for his biography. Mr O'Connor probably wasn't consoled by the consideration that he'd prevailed over a future chief justice in the wooing contest for the hand of Sandra Day, girl ranch hand, country club athlete, Episcopalian, Republican state legislator, conservative jurist, and first woman to serve as a justice on our Supreme Court.