A Woman Sitting on the Supreme Court: History’s Place for Sandra Day O’Connor

Judging from the record so far, President Reagan got what he wanted in appointing the first woman to the U.S. Supreme Court: credit for making history without the risk that his choice might effect change by writing new law.

Reagan wanted a conservative justice, and in Sandra Day O’Connor he got one. But since she has been on the court, feminists have had more to applaud than they might have anticipated--and surely more than they have had with any of the men Reagan has selected.

No other Supreme Court justice, for example, had ever given a major speech reviewing attempts by American women “to make real the promise of equal justice under law,” as O’Connor put it to a conference convened recently in Atlanta by the Carter Center of Emory University.

That speech and that conference--on women and the Constitution--offered the chance for scholars, judges, lawyers and politicians to assess, among other things, what impact O’Connor has had on the Supreme Court since taking her seat on Sept. 25, 1981.

In her speech, O’Connor gave abortion only a sidelong glance--unfortunate, but not surprising. Her prior dissent, to a decision striking down a restrictive Akron, Ohio, ordinance, has proved the most convincing challenge yet by a Supreme Court justice to the logic of Roe vs. Wade, the landmark case legalizing abortion.

O’Connor concentrated instead on why the court took so long to approach questions of sex discrimination--and why it is still doing so. “The court is a uniquely reactive institution,” she said. “Our agenda is shaped by the issues and concerns of the nation as a whole . . . . We cannot just pluck interesting issues out of the air and decide them for the benefit of future generations.”

Not all the sex-discrimination cases brought to the court have been successful, O’Connor noted. “But there is no question that the court has now made clear that it will no longer view as benign archaic and stereotypic notions concerning the roles and abilities of males and females.”

She concluded that “in the broad area of women and the Constitution, I would say we will linger for a good many more years. Despite the relative gains women have made over the last 30 years, in absolute terms there are still significant gaps . . . . Some of these disparities must be attributed to women’s late start in these areas (law and politics). Yet some also must be attributed to tenacious cultural and social barriers.”

Her speech gave little clue as to how O’Connor voted in the cases she reviewed--or how she would vote in the future. But many people in the Atlanta audience, including former vice presidential candidate Geraldine A. Ferraro, had positive impressions.

“Would I have preferred to see an Eleanor Holmes Norton on the court? Yes,” said Ferraro, herself an attorney, referring to the prominent Georgetown University law professor. “But I’m very confident with Sandra Day O’Connor there--she’s thoughtful, she’s done what others have promised to do, to put their own views aside and interpret the Constitution.”

Norton herself said of O’Connor, “She’s too predictable for my money.” But, said the former head of the Equal Employment Opportunities Commission, “she’s not absolutely predictable . . . She means to be a distinctive judge.

“Sandra Day O’Connor knows what Thurgood Marshall knew, that it was impossible not to feel the burden of history. Both of them have risen to the occasion. It’s more true for him so far, perhaps because his were more searing experiences” as a black American, said Norton, who is black herself.

Analyzing O’Connor’s background, Orma Linford of Kansas State University reminded her audience at one conference session that O’Connor had faced little discrimination growing up on a ranch in the Southwest, but did have a setback after graduating third in her class from Stanford Law School. Gibson, Dunn & Crutcher of Los Angeles offered her a job--as a legal secretary. She turned instead to the public sector, serving in Arizona as a state assistant attorney general, state senator, county Superior Court judge and member of the Arizona Court of Appeals.

Those experiences gave rise to two guiding principles, Linford concluded: “respect for the products of the legislative process” and rejection “of the notion that federal judges are somehow better than state judges.”

Linford found that O’Connor voted with former Chief Justice Warren E. Burger and the current chief justice, William H. Rehnquist, on 53 of 69 “polarized” cases in which they differed with the more liberal wing of the court. O’Connor votes more often than not to uphold criminal convictions and to sustain government action involving civil liberties--although she has contributed to significant First Amendment victories.

She also votes in favor of the person charging sex discrimination more often than not. But the record is uneven. In Grove City vs. Bell, a major case, O’Connor voted with the majority in saying the federal government could penalize colleges that discriminated by cutting off aid only for the specific program in which bias was found.

Yet in writing for the majority in Mississippi University for Women vs. Hogan, she argued strongly against sex stereotyping. The court ruled for a man rejected by the nursing school. O’Connor said that instead of protecting women, the school’s rule “lends credibility to the old view that women, not men, should become nurses.”

Jeffrey A. Segal of the State University of New York at Stony Brook and Karen O’Connor (no relation to the justice) of Emory University studied all 55 sex-discrimination cases decided by the Burger court, both before and after O’Connor’s appointment. They found that the court had voted with the person charging discrimination about 63% of the time before a woman joined them as a justice, 75% of the time afterward.

How much that reflected O’Connor and how much it reflected the times, they could not say. But with O’Connor on the court, Burger’s support for those claiming discrimination rose from 32.1% to 50% and Rehnquist’s support doubled, from 25% to 50%. Before O’Connor’s tenure “unanimous decisions concerning sex discrimination were rare,” the researchers found, but since her appointment many discriminatory charges have been unanimously upheld.

“A notable change occurred on the court toward sex-discrimination complaints when she took her place,” they concluded.

Lawyer after lawyer interviewed at the Atlanta meetings said that O’Connor’s presence could not help but influence her male Supreme Court colleagues. “O’Connor is a daily reminder that women are people who can think--that paternalistic care for one’s wife or daughter is no longer the only way women want to be treated,” said Ruth Bader Ginsburg, a federal Court of Appeals judge in Washington. “She also has an effect on people who come into the court--the lawyers, the spectators. She’s well-prepared, one of the more active questioners. She gets at the heart of the case and asks the difficult questions.”

Said Shirley Hufstedler, the Los Angeles attorney who might well have been the first female justice if President Jimmy Carter had made a Supreme Court appointment: “One must never say that there is no value in appointing people not expected to do a job to that job. Long before the term role model was invented, it was needed.”

But Hufstedler was quick to add that there “wasn’t significant follow-through” by the Reagan Administration to name more women as federal judges.

Norton sees women as much better off because Reagan posted one of them to the high court. O’Connor simply has a better chance to penetrate the ideological concerns of the men on the court, Norton said, than one could ever expect from an Antonin Scalia.

O’Connor’s Atlanta speech contained only one personal reference. In Washington, she said, the window of her court chambers “commands a view of a small brick house, the headquarters of the National Women’s Party and the home of suffragist Alice Paul. It serves as a daily reminder to me that less than 70 years ago women had yet to obtain that most basic civil right, the right to vote.”

That, for the U.S. Supreme Court, is a room with a different view.