Sandra Day O'Connor Archives - Columbia Law Review

Introduction Once upon a time in American public life, there were figures who achieved universal admiration. It was even possible to earn the trust of those with whom one disagreed. Justice Sandra Day O’Connor, who joined the Supreme Court as the first woman Justice in 1981 and retired in 2006,[footnote]Justices 1789 to Present, Sup. Ct. of the U.S., https://www.supremecourt.gov/about/members_text.aspx [https://perma.cc/U9UY-SFHC] (last visited Aug. 25, 2020).[/footnote] may be the last such public person—an icon able to transcend partisan polarization. Look around and try to spot another one. This problem extends beyond the familiar, rancorous spaces occupied by the branches of government. Journalists and nightly news anchors no longer serve as shared sources of information.[footnote]See, e.g., Knight Found. & Gallup, Inc., American Views 2020: Trust, Media and Democracy—A Deepening Divide 5, 9, 30–31 (2020), https://knightfoundation.org/wp-content/uploads/2020/08/American-Views-2020-Trust-Media-and-Democracy.pdf [https://perma.cc/CEQ8-VWB2]; Matthew Ingram, Most Americans Say They Have Lost Trust in the Media, Colum. Journalism Rev.: The Media Today (Sept. 12, 2018), https://www.cjr.org/the_media_today/trust-in-media-down.php [https://perma.cc/5GQE-QZC9].[/footnote] Entertainers and professional athletes often feel compelled to “choose sides.”[footnote]See, e.g., Christopher Clarey, In 2017, Many Athletes Found Their Voices, N.Y. Times (Dec. 20, 2017), https://www.nytimes.com/2017/12/20/sports/year-sports-protests.html (on file with the Columbia Law Review ); Karen Given, Athletes Take a Leading Role in Black Lives Matter Protests, WBUR: Only a Game (June 5, 2020), https://www.wbur.org/onlyagame/2020/06/05/black-lives-matter-protests-ken-shropshire [https://perma.cc/B2PL-FBBU]; Deena Zaru, Why Athletes Are Getting More Political in the Age of Trump, CNN (Aug. 14, 2017), https://www.cnn.com/2017/02/10/politics/donald-trump-colin-kaepernick-athletes-activism-sports/index.html [https://perma.cc/BEF2-FD5U].[/footnote] Even the U.S. women’s national soccer team angered some vocal groups in the United States last year while they triumphed in the World Cup competition.[footnote]Will Leitch, A National Team for the Trump Era, N.Y. Mag.: Intelligencer (July 8, 2019), https://nymag.com/intelligencer/2019/07/u-s-womens-soccer-a-national-team-for-the-trump-era.html [https://perma.cc/K2BN-78DH] (“[C]elebration of their victory felt like . . . a rebuke to Trumpism and the America we currently inhabit . . . .”).[/footnote] Everyone always seems mad at someone. In her day, however, O’Connor touched a chord that resonated with a wide and varied audience. When she appeared before the Senate Judiciary Committee in 1981, 100 million Americans watched on television,[footnote]Evan Thomas, First: Sandra Day O’Connor 141 (2019) [hereinafter Thomas, First].[/footnote] about the same number of people that tuned in for Super Bowl LIV on February 2, 2020.[footnote]Helen Coster, Super Bowl TV Audience Rises Slightly to 99.9 Million Viewers, Reuters (Feb. 3, 2020), https://www.reuters.com/article/us-football-nfl-superbowl-ratings/super-bowl-tv-audience-rises-slightly-to-99-9-million-viewers-idUSKBN1ZX2LI (on file with the Columbia Law Review ).[/footnote] She was confirmed by the full Senate 99-0 and emerged from the proceedings as the first celebrity Supreme Court Justice.[footnote]See Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice 82–83, 98 (2005) (noting O’Connor’s description of the intense environment around her after her nomination and her observation that she “couldn’t move without a battery of television cameras following [her] every step” (internal quotation marks omitted) (quoting Interview by KAET Horizon with Sandra Day O’Connor, Assoc. J., Sup. Ct., U.S. (Nov. 27, 2002))). Twelve years later, Justice Ruth Bader Ginsburg joined the Court and later became the “Notorious RBG”—a tiny figure in gloves and lace who was an intergenerational popular culture icon of intellect and strength. See Irin Carmon & Shana Knizhnik, Notorious RBG: The Life and Times of Ruth Bader Ginsburg 7 (2015); Justices 1789 to Present, supra note 1.[/footnote] Flashbulbs fired when she entered any event in Washington, and she received 60,000 letters in the first year after her confirmation.[footnote]Thomas, First, supra note 5, at 159.[/footnote] Over the next twenty-five years, she cast the decisive votes to resolve the most emotional debates that came before the Court, including a series of abortion and affirmative action cases.[footnote]See, e.g., Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (upholding a law school’s race-conscious admissions plan); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (joint opinion of O’Connor, Kennedy & Souter, JJ.) (establishing the undue burden standard for evaluating abortion regulation).[/footnote] And across more than 300 majority opinions,[footnote]See Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth & Thomas G. Walker, The Supreme Court Compendium: Data, Decisions, and Developments 633 (6th ed. 2015).[/footnote] O’Connor both achieved consensus among her colleagues and retained the public’s high regard.[footnote]See, e.g., Adam Cohen, Opinion, Sandra Day O’Connor’s Careful Steps Through the Judicial Landscape, N.Y. Times (Oct. 30, 2005), https://www.nytimes.com/2005/10/30/opinion/sandra-day-oconnors-careful-steps-through-the-judicial-landscape.html (on file with the Columbia Law Review ) (noting O’Connor’s ability to “pull[] the court’s two blocs inward toward consensus” and her “interest in what unites the country rather than in what can divide it”).[/footnote] Fast forward to the present Court. In the October 2019 Term, the Justices faced contentious questions about reproductive rights, discrimination, immigration, and executive power.[footnote]See, e.g., Robert Barnes, One of the Most Politically Volatile Terms in Years Tests John Roberts and the Supreme Court, Wash. Post (Oct. 6, 2019), https://www.washingtonpost.com/politics/courts_law/one-of-the-most-politically-volatile-terms-in-years-tests-john-roberts-and-the-supreme-court/2019/10/06/ffe72528-e608-11e9-a6e8-8759c5c7f608_story.html (on file with the Columbia Law Review ).[/footnote] The realignment since O’Connor’s departure has left a void in the pragmatic middle spaces on many issues,[footnote]See Jeffrey Rosen, Why I Miss Sandra Day O’Connor, New Republic (July 1, 2011), https://newrepublic.com/article/91146/sandra-day-o-connor-supreme-court-alito [https://perma.cc/2LPG-RMMC] [hereinafter Rosen, Why I Miss O’Connor] (“[T]he Court would be a far more centrist institution today if O’Connor were still on it.”); Evan Thomas, Trump Should Have Picked a True Conservative for the Supreme Court, Yahoo News (July 10, 2018), https://www.yahoo.com/news/trump-picked-true-conservative-supreme-court-015014785.html [https://perma.cc/6463-LZNF] (explaining that O’Connor “had an uncanny sense of finding the middle ground that not only produced court majorities but more or less helped keep the [C]ourt from getting too far ahead—or too far behind—the American body politic”). A particularly consequential case in which O’Connor’s presence on the Court would have produced a different outcome is the 5-4 decision in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), which permits corporations to make unrestricted independent expenditures to advance political campaigns. See Rosen, Why I Miss O’Connor, supra (“[O’Connor] was also highly critical of the Citizens United campaign finance case and said she would have voted the other way.”).[/footnote] yet the Court still maintains civil exchanges relative to the woeful state of the discourse in the political branches of the government and throughout our public life.[footnote]See, e.g., Charles Duhigg, The Real Roots of American Rage, Atlantic (Jan./Feb. 2019), https://www.theatlantic.com/magazine/archive/2019/01/charles-duhigg-american-anger/576424 (on file with the Columbia Law Review ) (“[V]isceral disdain for one’s political opponents has become common . . . .”); Robin Wright, Is America a Myth?, New Yorker (Sept. 8, 2020), https://www.newyorker.com/news/our-columnists/is-america-a-myth (on file with the Columbia Law Review ) (reporting commentary about the United States having “tribes with at least two or more sources of information, facts, narratives, and stories we live in” and becoming “a house divided about what holds the house up”).[/footnote] Even in a time of bitter political division, Chief Justice Roberts has crafted compromises and defied expectations in what seems to be an effort to demonstrate that the Court itself will not fracture hopelessly along partisan lines.[footnote]See, e.g., Harry Litman, Opinion, Chief Justice Roberts Delivers a Deft and Nearly Unanimous Rebuke to Trump’s Bid to Be Above the Law, L.A. Times (July 9, 2020), https://www.latimes.com/opinion/story/2020-07-09/supreme-court-john-roberts-donald-trump-vance-mazars [https://perma.cc/659G-PW6F].[/footnote] Among themselves, the Justices also tend to avoid personal vitriol, and they owe that norm in part to O’Connor’s collegial influence on the institution during her years on the Court.[footnote]See Thomas, First, supra note 5, at 300–02 (quoting Justice Thomas’s statement that “[t]he reason this place was civil was Sandra Day O’Connor”).[/footnote] Although she has fallen largely out of sight, O’Connor provides a reassuring reference point during a time of dispiriting public affairs. She recently circulated an open letter sharing news of her failing health and complete withdrawal from public life.[footnote]Letter from Sandra Day O’Connor, Former Assoc. J., Sup. Ct., U.S. (Oct. 23, 2018), www.supremecourt.gov/publicinfo/press/Public_Letter_from_Sandra_Day_OConnor_102318.pdf [https://perma.cc/7M3P-HQED].[/footnote] Shortly after this announcement, historian and journalist Evan Thomas published an intimate new biography of O’Connor. A bestselling author of ten nonfiction works—including biographies of Robert Kennedy, Dwight Eisenhower, and Richard Nixon—Thomas has a particular interest in American political culture, the legacies of noted and notorious figures, and the essence of leadership.[footnote]See Evan Thomas: About the Author, Penguin Random House, https://www.penguinrandomhouse.com/authors/30902/evan-thomas [https://perma.cc/8YCA-KX75] (last visited Aug. 25, 2020).[/footnote] With this project, Thomas portrays a woman leader for the first time and writes his first judicial biography. In collaboration with his spouse Oscie Thomas, he conducted more than 300 interviews of O’Connor’s family, friends, colleagues, and clerks; drew upon unprecedented access to O’Connor’s private papers (including twenty years of her husband John O’Connor’s journals); reviewed internal Supreme Court documents; and met with O’Connor and seven other Supreme Court Justices.[footnote]Thomas, First, supra note 5, at 407–09.[/footnote] While O’Connor no longer participates directly in the national conversation, First speaks for her and reintroduces her voice at a critical moment. It reveals both why O’Connor has been so admired and what she can still teach the country she loves. As this Book Review explains, First does so by chronicling a legacy in three parts: a lived example of how to thrive in the face of challenges, a lesson about the courage that lies beneath compromises, and a theory about the long game of American democracy. Part I of the Review describes O’Connor’s exceptional personal strengths and suggests that Thomas’s account of her trajectory could double as a guide to individual and professional development. Part II explores the connection between O’Connor’s character and her moderate—but also brave and consequential—jurisprudence. Part III discusses O’Connor’s dedication to civility and continuing democratic discourse. The Review concludes that First sounds wistful notes about what seems a bygone era yet contains hopeful lessons about repairing American civic life.