For an old ranching girl, you turned out pretty good," President George W. Bush told Sandra Day O'Connor when she spoke to the White House last week to say that she was retiring from the Supreme Court. The image of O'Connor as cowgirl is a powerful one, and she has done as much as anyone to foster it. In her chambers, decorated with Western rugs and paintings and artifacts, she served her clerks homemade Tex-Mex lunches on Saturdays. With her fixed and level gaze, her dry, flat voice cutting like the prairie wind, she came across to nervous Supreme Court petitioners like an Annie Oakley of the Bench, a fast draw with sharp questions and a don't-mess-with-me manner. Her most memorable writing was not the language of her judicial opinions but her memoir of growing up on a ranch, the Lazy B. In her retirement, she will work on a children's book about her childhood horse, Chico.
But the image can be misleading. Her real legacy on the Supreme Court is not as a self-reliant throwback to the Old West. Rather, as a justice, she embodied an equally endangered species: the moderate establishment progressive, a centrist in an age of ever-edgier extremes. She has become more High Society than High Noon, more country club than cowgirl. She was profoundly out of place in the modern Washington of "Crossfire," of ideological posturing and filibusters, of the war between the Red States and Blue States. She was a deep believer in the sensible center, in humane compromise, in finding ways to defuse quarrels and sand down bitter edges. It is typical of O'Connor that when conservative ideologues began ranting on the floor of the House of Representatives about "mass impeachments" for liberal judges, she quietly invited them to her chambers for lunch--as a lesson in civility.
This is not to say that she minimized the importance of winning. A former state-legislature majority leader, she wanted to carry the day, and usually did. She was the classic swing vote in countless 5-4 decisions. One year, 2000, she dissented only once, coming close to the record of no dissents set in 1967 by Justice William Brennan, the leading politician of the Warren Court in the late '60s. She could generally be found in the center--not of public opinion generally, but of so-called elite opinion, the consensus of the chattering classes that is often to the left of the rest of the country. On abortion, affirmative action, the separation of church and state, and women's and gay rights, she slowly steered onto the moderate-left side of the cultural divide.
As a justice she showed little deference to popularly elected government, routinely striking down government rules and regulations that offended her sense of right and wrong. She was a modern-day version of Plato's Guardian, doing the right thing to protect the less enlightened from their own faults and shortcomings.
This "judicial independence" sometimes won her the praise of The New York Times's editorial page, but it earned the undying enmity of conservative groups, which felt betrayed by her--and which have vowed never to allow her kind of "mistake" to be made again. President Bush is under pressure to find a more reliable conservative to replace her, and it is a sure bet that liberal and conservative lobbies will spew all the venom that millions of dollars can buy to fight about it. The coming nomination battle promises to be just the sort of take-no-prisoners ideological slugfest that O'Connor disdains.
O'Connor exudes self-confidence. She got it learning to deal with adversity as a little girl on a cattle ranch along the Arizona-New Mexico border, and her odyssey from the dusty West to the highest levels in Washington is a uniquely American tale. On the Lazy B, when she was a child, there were no neighbors for miles, no doctors, no running water, no electricity and--for agonizingly long stretches--no rain. "What it taught us was accountability and responsibility," says her brother Alan Day. "If something breaks, you fix it." The ranch was a man's world, and O'Connor rode her horse, Chico, around with crude cowhands who gave their horses names like "Hemorrhoid."
O'Connor's father was no fan of FDR and the New Deal. Like many ranchers whose cattle graze on federal lands, he had a strong aversion to the Feds, whose rules and regulations seemed intrusive or unreasonable. O'Connor's judicial views were shaped in part by her father's strong opinions. She often took an antifederal government, pro-states' rights position in her decisions. Harry Day was no hick; he had worldly interests. He took his family on trips to Alaska and Cuba, and subscribed to The New Yorker magazine. Disappointed that he had been unable to attend Stanford University, he sent his daughter there, after she had been schooled for a time at a private girls' school in El Paso, Texas. At Stanford and Stanford Law, the establishment schools of the West, O'Connor was a social as well as an academic success.
Much has been made of the discrimination she faced out of law school, when the big West Coast law firms turned her down or offered her secretarial work. But she and her husband, John, were welcomed into the upper crust of Phoenix, Ariz., where she did charity work and swam and played tennis at the Paradise Valley Country Club. He was a successful lawyer; she took some time off to raise three kids. A Goldwater conservative, she went into politics and quickly became president of the state Senate. O'Connor served for less than six years as a state trial and appellate court judge before Ronald Reagan elevated her to the Supreme Court in 1981.
Because of her Reagan-Goldwater patronage, the press expected her to be a conservative justice and expressed surprise when she was not. But ideology had little or nothing to do with her appointment. Worried about a "gender gap" that was hurting the Republican Party, Reagan demanded a shortlist of potential justices who were all female. In 1981, there were very few women judges, and almost no Republican ones. In fact, as some conservatives pointed out at the time, O'Connor as a state senator had supported legislation to decriminalize abortion and sparred with the far-right John Birch Society. (O'Connor charmed Reagan in her interview, talking about horseback riding and mending fences at the Lazy B. The president never bothered to interview anyone else.)
During her time on the court, O'Connor was the only justice who had been elected to public office. She approached her job like a politician, looking for majorities. She was able to disarm the then all-male court (Justice Ruth Bader Ginsburg was appointed in 1993). O'Connor recently described her formula in a speech to Barnard College: "Women who have been particularly successful tend to be intelligent and open-minded and I would say friendly." O'Connor was in fact seen by her colleagues as friendly, but also steely. Before he died, Justice Thurgood Marshall told a reporter, "She's very nice, but if you cross her, she'll kick you in the [deleted] as hard as anybody."
O'Connor's model justice was Lewis Powell, a courtly Virginian who always looked for consensus and prized moderation and reason. Powell was the author of the split-the-difference Bakke decision in 1978, which struck down explicit quotas in university admissions but upheld some use of racial preferences. "She is a gifted person," Powell said of O'Connor. "I hear she's an excellent horsewoman, a good shot, a good golfer... She is an excellent ball-room dancer... I thought women were too sweet and gentle to be good lawyers. Now I know better."
From Powell, O'Connor learned to write carefully calibrated opinions based on the facts, rather than sweeping legal doctrine. Her flexibility helped keep her in the majority, but it also provoked criticism. "O'Connor's narrow opinions have the effect of preserving her ability to change her mind in future cases," wrote Jeffrey Rosen, a George Washington Law School professor, in a New York Times Sunday Magazine profile four years ago. Other justices, by contrast, are boxed in--or held accountable--by their adherence to fixed legal doctrines. "By her refusal to commit herself to consistent principles," wrote Rosen, "O'Connor forces the court and those who follow it to engage in guessing games about her wishes in case after case."
Over time, O'Connor gradually inched to the left on the great, and divisive, social issues, taking the court with her--but increasingly alienating conservatives. At first, pro-lifers hoped they had an ally in O'Connor. In a 1983 dissent, she wrote that the court's decision in Roe v. Wade granting women a right to abortion was "on a collision course with itself" (as technology increased the "viability" of the human fetus). But in 1992 she was the fifth vote to affirm what she called Roe's "essential holding" that abortion is a constitutional right. And in 2000, she again cast the decisive fifth vote to knock down state laws that banned a grisly procedure known as partial-birth abortion.
On gay rights, she voted in 1986 to uphold a Georgia law making sodomy a crime. But in 2003, she joined a 6-3 decision to strike down a Texas law making homosexual sodomy a crime. On affirmative action, she sided with conservatives for many years, striking down quotas and "set-asides." But in 2003, she changed course by upholding affirmative action in university admissions.
Her opinion in that case was very much along the lines of her mentor Lewis Powell's in Bakke. She seemed to be rejecting quotas, but permitted clear racial preferences in the name of diversity and predicted they would no longer be necessary in 25 years. Her decision was warmly received by the mainstream media and large business and educational institutions that have used affirmative action for years. But it was roundly denounced by conservatives, who accused her of overlooking evidence that the test-score gap between blacks and whites is widening despite decades of affirmative action.
In freedom-of-religion cases, she initially sided with conservatives, ruling in 1984 that a city may include a Nativity scene in a Christmas display. But since 1985, she has joined the liberals to ban prayer at public-school graduation ceremonies (in 1992) and football games (in 2000). Last week she voted with the majority to order the removal of copies of the Ten Commandments from the walls of two Kentucky courthouses. She also dissent-ed from the court's 5-4 decision to allow a six-foot-high Ten Commandments monument to stand on the grounds of the Texas capitol. In her common-sense way, she made an elegant point: "Those who would renegotiate the boundaries of church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served others so poorly?"
Conservatives often express frustration that justices appointed by Republicans veer to the left once they get on the High Bench. They point not only to O'Connor but to Justices David Souter (appointed by George H.W. Bush) and Anthony Kennedy (appointed by Reagan). What happens when justices disappear into their marble temple? Some conservative justices, like Antonin Scalia and Clarence Thomas, argue that their colleagues have become the prisoners of "elite opinion." Justices do not mix much with each other. They spend most of their time with law clerks who are recent products of elite law schools where liberalism tends to reign supreme. Legal scholars write approvingly of justices who "evolve" on the court. As generally understood in the legal commu--nity, "evolving" means taking positions more agreeable to political liberals. (The defiantly conservative Justice Thomas has been quoted as telling his clerks: "I ain't evolving.")
O'Connor's leftward tilts are not in any way extreme. Had she been on the court in the '60s, it's doubtful that she would have been on the cutting edge of expanding rights with liberals like Brennan, Marshall and Chief Justice Earl Warren. O'Connor is essentially a centrist. She is hardly insensitive to public opinion, and usually looks for a way to make her decisions palatable to the public at large.
O'Connor has never been cloistered as a justice. She has been a regular on the Washington social circuit, dancing at charity balls with her husband, John, playing bridge at the Chevy Chase Club, an exclusive club next door to the house she owned for many years (and just sold last week, to move into an apartment). She likes to be in the know. She once described herself as an early riser, standing outside her house in the morning, waiting for the newspapers to be delivered. She has almost certainly appeared more in The Washington Post Style section--at openings, parties, receptions--than any other justice. (Scalia is probably the second most-sociable justice; some others, like Souter, are almost invisible.) She appeared as Isabel, Queen of France, in an amateur production of Shakespeare's "Henry V," delivering Isabel's line "Haply a woman's voice may do some good."
Her social life did not mean that she worked any less hard. Nor did she let up as she became more experienced. In later years her nickname was "Night and Day O'Connor." She could go out to a party and be up in the court's basketball court--the "Highest Court in the Land"--for her 7:15 aerobics class. (She instituted stretching and aerobics for the clerks, who before her arrival had to be content to play vicious games of basketball with former NFL star Justice Byron [Whizzer] White.) In 1985, Washington Redskins running back John Riggins, in his cups, caused a scene by crawling under her table at a congressional dinner and exclaiming, "Come on, Sandy baby, loosen up." O'Connor's clerks began wearing T shirts to aerobics class emblazoned with LOOSEN UP AT THE SUPREME COURT.
O'Connor's stamina is legendary. Diagnosed with breast cancer in 1988, she took treatments on the weekend, was violently sick--and never missed a day in court. Asked what troubled her about her ultimately successful treatment, she replied, "I'm not used to being tired. I'm a person that didn't sleep much. Well, I could hardly get up, and in the afternoon I felt like I needed a nap. And this was frightening."
With her clerks, she was demanding, sometimes stiff, but very considerate, especially if they were women with children. Barbara Woodhouse, who clerked in 1984-85, had a 14-year-old daughter at boarding school in Connecticut. O'Connor heard that her daughter was performing in a Gilbert and Sullivan production. "You're going, aren't you?" she asked. Woodhouse mumbled that she had a lot of work to do. "You must go," said O'Connor, who picked up the phone and called her travel agent and booked her a ticket. "She worried about us clerks," said Woodhouse. "She wanted to make sure we ate well, so she used to cook something and bring lunch to the chambers." She also took clerks to look at the cherry blossoms, to the National Gallery and on white-water kayaking expeditions. She said she had learned to be a better judge by being a better mother. When she had to divide up one pizza for her sons, she let one boy cut it and another decide which piece to take first. As a trial judge, she said, she used similar strategies to resolve haggles between lawyers.
At 75, O'Connor still thinks nothing of playing tennis for two hours and then going out for a round of golf. But her friends have noticed that she has a slight palsy that medication does not seem to control, and she has been talking of retiring for some time. She could teach anywhere and write, and she is in constant demand as a lecturer. Her former clerks and several of her friends say that she has been increasingly worried about the health of her husband. Once a garrulous storyteller, John O'Connor has been suffering from a form of adult dementia for several years. Husband and wife are extremely close. Visitors to her chambers sometimes find John sitting quietly in her office. Lately, says a friend who asked not to be identified because of the sensitivity of the subject, "John has been increasingly upset when she leaves the house in the morning and calm when she returns." Her decision to retire is at least partly to spend more time with him.
One day last fall, her brother Alan Day asked her what her life would be like when she retired. "When you retire from the court, you become a nobody," she replied. Giving up the Supreme Court is very difficult for anyone, especially for someone so engaged and active--so much at the center of things. When he heard the news last Friday, Day called his sister. "I'm sure you agonized over this decision," Alan said. "Yes, I did," she replied. But she seemed comfortable and confident. She had decided on the facts, and from the ranch to the bench, her common sense hasn't let her down yet.