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From Triumph To Tragedy, 'First' Tells Story Of Justice Sandra Day O'Connor

By Nina Totenberg | NPR
Friday, March 15, 2019

Late last year, retired Supreme Court Justice Sandra Day O'Connor issued a statement announcing that she had been diagnosed with Alzheimer's disease. It was a poignant moment, a reminder that for decades O'Connor was seen as the most powerful woman in America.

Now comes an important book about her — First, Sandra Day O'Connor: An Intimate Portrait of the First Woman Supreme Court Justice. It is unlike every other volume written about O'Connor — even the books the justice wrote about herself.

For those too young to remember, O'Connor was so admired on the public stage that there were even suggestions she run for president. She had no interest in that, but her vote and her approach to judging dominated the U.S Supreme Court for a quarter of a century, until her retirement in 2006.

Whether the subject was affirmative action, states' rights, national security or abortion, hers was often the voice that spoke for the court.

Author Evan Thomas breaks new ground with First. With extraordinary access to the justice, her papers, her personal journals — and even 20 years of her husband's diary — the book is, in a sense, an authorized biography. But it is considerably more.

It is an unvarnished and psychologically intuitive look at the nation's first female Supreme Court justice, and some of her contradictory characteristics. She was tough, bossy, relentless and, beneath that, she could be emotional. In private, she was not afraid to cry — and she had a soft spot for others when they needed it.

Learning Life Lessons Early

O'Connor learned to be independent and to "suck it up" early in life. Home was her parents' cattle ranch, the second largest in Arizona, 160,000 acres, one-fifth the size of Rhode Island.

It was "like our own country," she would say. But it was an unforgiving country with no heat and no running water.

She was just 6 years old when her parents sent her four hours away by train to live with her less-than-warm-and-fuzzy grandmother in El Paso, Texas, so she could go to a good private school.

She adored her father, and he gruffly loved her too. But author Thomas says it was by watching her mother that she learned an important lesson — one that would guide her through life as she dealt with men and the world they dominated: Don't take the bait.

As author Thomas put it in an interview with NPR, O'Connor's father, known as DA, "could be harsh to his own wife," especially after a few drinks in the evening, "and what Sandra observed that was so valuable to her was that her mom did not take the bait. She learned how to roll with it."

It was a lesson that served O'Connor well when she was elected to the Arizona state senate, a place that author Thomas describes as "a very male and very rough place for a woman in 1970."

Not only did the men drink a lot, "sexual harassment was the order of the day." Usually O'Connor dealt with all that by just walking away. "She was not an arch-feminist," Thomas says. And, in relatively short order, O'Connor was elected majority leader.

Still, sometimes enough was enough.

One of those times involved Tom Goodwin, the chairman of the Arizona House Appropriations Committee. Thomas describes him as "a drunk-by-10:00 A.M. drunk." And when O'Connor finally confronted Goodwin about it, he snarled at her, "If you were a man, I'd punch you in the nose," to which she replied, "If you were a man you could."

She was "smarter than the men," and more organized, Thomas says. But after five years, she walked away from the legislature to become a state trial court judge.

Lucky Timing — And A Small Field Of Contenders

O'Connor served four years on the trial court, then two on an intermediate-level appeals court.

Not exactly a springboard to the Supreme Court.

But when Ronald Reagan, carrying out his campaign promise, wanted to name a woman to the high court for the first time, there weren't many conservative female judges to pick from. And O'Connor had friends in high places, among them Justice William Rehnquist, who had gone to Stanford Law School with her, courted her, and proposed to her — a fact not known even to the O'Connor and Rehnquist children until author Thomas unearthed their early correspondence.

On July 7, 1981, President Reagan, after meeting privately with O'Connor, announced her nomination.

Prepping for her confirmation hearing was daunting. She had no experience with constitutional law, or federal court practice. And she was cramming like mad.

"She had an amazing ability to absorb information quickly and retain it and go for what mattered," observes Thomas. "She could go through thousands of pages of dense, turgid legal stuff" and get to the point "in a hurry."

The young Justice Department staffer assigned to help O'Connor was one John G. Roberts Jr., who would decades later become chief justice of the United States. But back then, he simply couldn't keep up with O'Connor; he was not able to get her the information she wanted fast enough.

So she formed her own team in Arizona to supplement what she was receiving in Washington. She was, as author Thomas puts it, "a relentless grind." But at the confirmation hearings, the first ever to be broadcast, she was a sensation, answering questions deftly, knowledgeably and skillfully avoiding political potholes and trip wires on abortion and other controversial subjects.

The public loved her, and she was confirmed 99 to 0.

'The Glue' Of The Court

Much has been written about how terrified O'Connor was when she joined the Supreme Court. As she put it in an NPR interview, "Everyone said, 'Oh, we're so glad you're here now, just let me know if I can help.' I didn't even know the questions to ask to get the help I needed. ... We had more mail than we could even open." She knew that any misstep could be fatal for women's prospects all over the country. As she often put it, "It's good to be first, but you don't want to be last."

Less well known is how exhilarated she was to be playing in the biggest and most exclusive legal league in the country, a place where she could make a difference.

Also less known is the role she played in getting the court together. When she arrived, only four of the nine justices would show up for the justices' weekly lunches. And O'Connor set about to change that.

"She knew from her own experience that breaking bread together really is a way to get people to know each other, and she made it her business to make sure that the justices showed up for lunch," says author Thomas. "She would appear in their chambers and just sit there until they came with her."

Perhaps her most difficult luncheon recruit was Clarence Thomas, who arrived in the fall of 1991 after a bruising confirmation hearing involving charges of sexual harassment.

"On his very first day, Thomas, feeling glum and alone, is walking down the hall when O'Connor comes up to him and tells him, 'those hearings were very harmful.' The next day she shows up again, and she says, 'You've got to come to lunch.' But he doesn't want to. He wants to be alone. The next day, she's back," reports author Thomas, and she says, " 'Clarence, you've got to come to lunch.' And finally he does. And he said, 'You know it made all the difference for me. I went from being lonely and alone to coming to lunch.' A little simple thing, but he joined the group because he realized that life has got to go on, this group has got to get along. She made him realize that."

Indeed, the author quotes Thomas as telling him that O'Connor "was the glue ... that made this place civil."

She stayed committed to this role throughout her entire career as an associate justice. She held her head high and would not let slights get to her. When Justice Antonin Scalia would write a dissenting opinion belittling her work, she refused to reply in kind, deleting the zingers that her clerks added to draft opinions in reply.

Her bout with breast cancer was the one time she almost buckled. "It terrified her and, briefly, she gave up. She did not want treatment, she did not want to try to beat it, she just accepted that she was going to die," Thomas says.

This uncharacteristic bout of self-doubt lasted one day and then, as she always had, she sucked it up. She started going to exercise class; she never missed a day in Court; she was out dancing within 10 days of surgery.

Once again, she became "that formidable Sandra Day O'Connor," Thomas notes.

O'Connor would be the lone woman on the court for 12 years. In 1993, Justice Ruth Bader Ginsburg was appointed by President Clinton.

"The minute Justice Ginsburg arrived the media pressure was off, I think for both of us," O'Connor said in an NPR interview. "We just became two of the nine justices and it was just such a welcomed change, it was great."

A Realist, Not A Grand Theorist

Though O'Connor was a pretty conservative justice, she was not doctrinaire. As author Thomas and countless others have observed, she was "a realist." On abortion, for example, she ultimately prevailed, cutting back on Roe v. Wade so that states could enact significant regulations.

But far from all regulations. When, for example, it came to a Pennsylvania law that required women to notify their husbands before getting an abortion, she said that was going too far. It is an "undue burden" on a woman's right to end a pregnancy.

"She came from the real world, and she knew that husbands could be abusive to their wives," author Thomas explains. Requiring a woman to tell a drunk or abusive husband that she was planning to have an abortion could end up with the woman badly beaten or worse. As Thomas says, "This wasn't a theoretical thing."

She tried to weave a similarly realistic legal path on the subject of race and affirmative action. As author Thomas notes, O'Connor didn't like racial preferences or identity politics. She wrote important opinions striking down racial apportionment in government contracting and in drawing legislative districts.

But she "understood" that if the country was going to produce diverse leaders in the law, in politics and in the military, colleges and universities had to be able to fashion admissions systems to bring in racial minorities in large enough numbers to reflect society at large. And so she ultimately upheld affirmative action programs in higher education, but not quotas.

These kinds of balancing tests are not embraced by today's brand of hard-line conservative judges and legal theorists. They dismiss such decisions as unfaithful to the intentions of the founding fathers, and the proper role of the courts.

O'Connor disagreed.

"She looked at the impact of the court on life, and that's what mattered to her more than some abstract judicial theory," Thomas says.

The Perfect "First"

Observers — conservative, moderate and liberal — agree on one aspect of Sandra Day O'Connor's service: She was the perfect first. Author Thomas quotes a law clerk who calls O'Connor "the un-feminist feminist."

"Several people said to me that the irony here is that this somewhat traditional woman was more effective in the cause of women's rights precisely because she was not threatening and because she was practical and she knew when to step back. But she also knew when to step forward," Thomas says.

If she was triumphant in her Supreme Court career, however, she came to regret the end of that career on the court. The story of her decision to leave at the peak of her influence and ability is, by all accounts, tragic.

Author Thomas sets the stage for what is to come, noting that O'Connor for years kept up a relentless social schedule, partly for her husband John, who had been "a big time lawyer" in Phoenix but was a professional second banana to his wife in Washington.

She was able to switch roles, however, to be a more traditional wife at parties, where John O'Connor was often the star, as she sat back. He was famously entertaining, funny and charming, "a social lion" who could "show off" on the dance floor too. So his wife kept up a sometimes frenetic social schedule for him, even though it meant she would return home late at night, to hours of work to complete.

By the 2000s, though, John had begun to have memory problems. Early Alzheimer's turned into "raging" Alzheimer's, says Thomas. Soon the justice began bringing John with her to chambers every day, trying to personally care for him. But it got to the point where she realized she just couldn't do that. As Thomas puts it, "She said 'he sacrificed for me when we came here, now it's my turn.' "

"So she resigned from the court before she was ready," Thomas says. "It was tragic because within six months of her leaving the court, he could barely recognize her." And he ended up in an assisted living facility where he formed an attachment to another woman.

The newly retired Justice O'Connor "would come in and find her husband holding hands with this other woman, and with her characteristic strength she would sit down and take her husband's other hand."

With the knowledge of hindsight, O'Connor regretted her decision to leave the court, telling author Thomas it was "the biggest mistake, the dumbest thing I ever did."

In the immediate aftermath of her retirement, she watched in dismay when President George W. Bush elevated Samuel Alito to replace her. Alito, when on a lower court, had specifically voted to uphold a Pennsylvania anti-abortion provision that required women to notify their husbands if they planned to get an abortion. Alito said that expert witness testimony failed to show how many women faced a real threat of battering if their abusive husbands learned of an abortion. But to O'Connor, Alito's view was not only dangerous to the safety of women living with an abusive spouse, and their children, it twisted her words to make the point he wanted.

Once on the court Alito would, in fact, be a reliable conservative vote against abortion rights, and he would provide a fifth vote for a new and much more conservative court majority that would overturn or undermine other decisions O'Connor was proud of — including on campaign finance reform. Watching this prompted O'Connor to lament privately, Thomas says, that the new court was "systematically dismantling my legacy."

Copyright 2019 NPR. To see more, visit https://www.npr.org.

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