It’s two hours long and contains no sensational new findings, but for a history and Constitution nerd like me, the upcoming “American Experience” documentary on the life and career of Sandra Day O’Connor was catnip.
It’s titled “The First,” obviously referring to O’Connor’s standing as the first-ever of her gender to serve as a justice on the U.S. Supreme Court, which is a big deal. But once you get past that, the film will remind you that although she was nominated by conservative hero Ronald Reagan (his first high court pick) and squired to her confirmation hearings by Barry Goldwater, a famously hard-line conservative senator, she ended up occupying for years the court’s ideological center and therefore delivering the key swing vote on a great many cases.
Her story is also a reminder of how recently it was that entrenched, jaw-dropping sexism made it that much more amazing and important that slightly more than two centuries into Supreme Court history, a woman, O’Connor, finally broke the gender line. (There have still been just five female justices, three of whom are currently on the court, which is, of course the all-time high.)
Raised in the 1930s on an Arizona cattle ranch, so smart that she skipped two grades and entered Stanford as a freshman in 1946 when she was just 16, Sandra Day was a lifelong Republican. She graduated from Stanford’s law school, where one of her classmates was her future court-mate William H. Rehnquist. (Rehnquist was attracted to her, the film tells us, but by that time she had already met the law student John Jay O’Connor, whom she would marry.)
Despite her excellent law school credentials, the only job offer she received from a law firm was for a secretarial position. Yes, you read that right.
So, after moving to Phoenix, where her husband had an offer from a law firm, he she opened her own solo office and practiced law. Then, as an active Republican, she went to work in the office of Sen. Goldwater, where she demonstrated sufficient political skill to be appointed to a vacant seat in the Arizona state Senate. She served two terms, became the Arizona Senate Republican majority leader (the first of her gender to reach that role in any state) during the years when the women’s movement was gaining steam.
She tried to get Arizona to ratify the Equal Rights Amendment, but couldn’t get it done (and, as you know, the ERA has still not been ratified by enough states to become part of the Constitution). But rather than stand down, the film tells us, she made a list of Arizona state laws that discriminated against women and worked to get them repealed, with mixed results.
But O’Connor was anxious to avoid being labeled a feminist. The film notes that, rather hilariously in retrospect, she told one group to whom she spoke: “I come to you with my bra and my wedding ring on.”
With Goldwater’s help, O’Connor was appointed to a judgeship and then elevated to a seat on the Arizona Court of Appeals in 1979.
The following year, Ronald Reagan, who opposed the Equal Rights Amendment (even though its ratification had been part of the Republican Party platform for years until Reagan came along), was elected president. (The 1980 GOP platform also added opposition to abortion to its platform for the first time ever.)
But during the 1980 campaign, perhaps hoping to offset his opposition to the ERA and abortion and perhaps appeal to women voters, Reagan pledged that, if elected, he would be the first president ever to nominate a woman to the Supreme Court and would use his first opportunity to do so.
The film labeled that a “cynical move” by Reagan. But, when Justice Potter Stewart announced his retirement, Reagan kept his word, considering only women for the opening. And, after O’Connor was promoted by Goldwater and Arizona’s other senator, Democrat Dennis DeConcini, plus her old friend Rehnquist, Reagan nominated O’Connor, calling her “a person for all seasons.”
She was 51 when she arrived for her confirmation hearings on Sept. 9, 1981. Christian conservatives opposed the nomination, but when asked about her stance on Roe v. Wade or about the ERA, she declined to answer, based on the need to preserve her judicial independence should those issues come before her on the court.
The outcome was never in doubt and she was confirmed on a 99-0 Senate vote, something that would be roughly unimaginable in today’s climate.
In her early years on the court, she voted mostly with the conservative bloc, but as the years passed, there emerged a loose three-member moderate bloc, O’Connor plus Justices David Souter and Anthony Kennedy, that developed a view, for example, on abortion, that Roe v. Wade had become “a rule of law and a component of liberty we cannot renounce.”
Over the following years, as states tried to regulate abortion out of existence without actually banning it, O’Connor and the other moderates developed the doctrine that regulations that placed an “undue burden” on woman’s right to choose violated the Constitution. That logic was enormously important in preserving the basic Roe v. Wade logic, that abortion could be regulated but not banned and that the regulations had to be reasonable and not unduly burdensome.
In contrast, the film says, O’Connor seldom broke ranks with the court’s conservatives on matters of crime and punishment and some other areas. It was at least the conventional wisdom, and with plenty of facts to back it up, that O’Connor occupied the center of the court and therefore (as noted in the headline of this 2005 analysis piece, written when O’Connor announced her retirement), held “the balance of power.” It notes that in 1999, when the court had a record number of cases decided by 5-4 rulings, O’Connor was on the majority side of almost all of them.
Not until 1993, when President Bill Clinton nominated Ruth Bader Ginsburg (12 years after O’Connor had joined the court), did O’Connor have a female colleague.
In 2000, in the disputed post-election case of Bush v. Gore, decided on a 5-4 vote, O’Connor was again on the prevailing side, although she later said she wished the court had refused to decide the election, according to the film. (I looked it up. What she actually said, after she had retired, was: “Maybe the Court should have said, ‘We’re not going to take it, goodbye.’”)
The film argues that O’Connor evolved in a liberal direction over her tenure, especially during the George W. Bush presidency, when she was offended by some of Bush’s assertions of executive power, including actions during the war on terror. She ended up casting decisive votes to save affirmative action and to establish gay rights law.
She retired in 2005, under Bush, and was replaced, after some fits and starts, by a more reliable conservative, Samuel Alito, which the film suggests tilted the court more solidly to the right, a tilt that has persisted since.
The O’Connor film, which is based on a book by Evan Thomas, is two hours long. I liked and learned from it all the way through, but I thought I’d better warn you. It airs at 8 p.m CDT, Monday, Sept. 13, on PBS stations, including TPT-2.