Author: Evan Thomas
Publisher: Random House
Reviewer: Matthew Hickey OAM
Judges of the United States Supreme Court are “subject to a form of celebrity that would be disquieting to an Australian judge”, said Justice Virginia Bell of the High Court of Australia, in 2017.[1] Her Honour observed that, for $24, fans of Justice Ruth Bader Ginsburg – arguably the most famous Supreme Court Justice[2] – can purchase a coffee mug featuring ‘a rather grim portrait of her Honour under the words “I dissent”’. The “Notorious RBG” (as she became known by excitable undergraduates) was the second woman appointed to the US Supreme Court. The first, for those not old enough to remember, was Sandra Day O’Connor, who died in December.
In his meticulously researched 2019 biography, the writer and journalist Evan Thomas gives an intimate[3] glimpse into the life and mind of this important American. The book is the product of some 350 interviews, and was written with the assistance of Day O’Connor, her family, 94 of her (108!) law clerks, seven sitting Supreme Court Justices, and a constellation of other friends and colleagues.
The first chapter deals with Day O’Connor’s early years. She was raised on “Lazy B”, a sprawling cattle ranch, straddling the Arizona and New Mexico border, in tough and unforgiving country. Her father, of similar constitution, was a notoriously truculent, no-nonsense sort of fellow. He taught Day O’Connor, when she was still a girl, to muster cattle on horseback with experienced cowboys, drive trucks, fix tractors, read weather, and to understand that initiative, hard work and resilience were fundamental for survival. Those qualities, learned through her early harsh experiences, became hallmarks of Day O’Connor’s life and career.
Thomas’ writing in that chapter is lyrical and poetic. In parts it reads more like a grand American saga than a biography. It evoked for me something of the Hamilton family’s Salinas Valley trials and tribulations in Steinbeck’s East of Eden . But painting a literary picture is not merely self-indulgence on the author’s part. It provides a vivid backdrop for later events and lays an effective foundation for themes to which Thomas, cleverly, returns throughout the book (echoing Day O’Connor’s own relationship with Arizona).
Later chapters explore Day O’Connor’s adolescence and early adulthood.
Having recognised Day O’Connor’s obvious intelligence, her family sent her to Texas when she turned 16, to live with her grandmother while completing High School. Stanford University law school followed. There, (after briefly dating William Rehnquist, with whom she would later serve on the Supreme Court) she met her husband John, and graduated near the top of her class.
Despite her considerable academic ability, Day O’Connor struggled to gain employment as a lawyer in the “white shoe” firms by whom her male peers (including her husband) were recruited. One, Gibson, Dunn & Crutcher in LA, offered her a role as a typist. She declined. Three decades later, when William French Smith (the Attorney-General) called to sound Day O’Connor out about the Supreme Court position, she said to him, wryly, “I assume you’re calling about secretarial work”. Smith had been a partner at Gibson, Dunn & Crutcher.
After a brief stint in Germany (having followed John, who served as a civilian attorney in the military) Day O’Connor returned to Arizona. She served in a number of public roles, gave birth to three sons, and rose to the position of assistant Attorney-General. In 1969, she was appointed to fill a casual vacancy in the State Senate. By the time she left politics (by choice, not electoral failure) in 1973, she had become the first woman to hold the position of Majority Leader in that (indeed, in any) state.
In 1974, Day O’Connor stood for election as a Superior Court judge. In 1979 she was appointed to the Arizona Court of Appeals. President Ronald Regan appointed her as a Justice of the Supreme Court in 1981. According to Thomas, Regan regarded appointing the first woman to the Supreme Court among the greatest achievements of his presidency.
Naturally, the book dedicates more than half its contents to events after Day O’Connor’s appointment to the Supreme Court. Those chapters set out a richly-described historical account of contemporaneous events, to give context to a discussion of a selection of cases which Day O’Connor decided. These include repeated attempts to overturn Roe v Wade (the book suggests the effect of that case upon American public discourse cannot be overstated), various affirmative action cases (involving women and minority groups), and the case concerning the Florida recount in the 2000 Gore / Bush Presidential election. Day O’Connor’s approach to the last of these (and her reflections on the case as revealed through interviews with family members and contemporaneous documents) is made particularly interesting because of her history as a Republican politician and close friendship with the Bush family.
Other moments of human interest in the book are provided by Day O’Connor’s (sometimes difficult) relationships with Chief Justice Warren Burger (whose friendship, established during a summer boating holiday, laid the groundwork for Day O’Connor’s ultimate elevation), her college boyfriend Chief Justice William Rehnquist, Justices William Brennan Jr, Thurgood Marshall, Anthony Kennedy, Clarence Thomas and Antonin Scalia (whose regular withering criticisms of Day O’Connor in written opinions, seem not to have damaged their friendship).
Day O’Connor’s Supreme Court appointment came shortly after the publication of “The Brethren”, an explosive behind the scenes page-turner about the Supreme Court, by Bob Woodward.[4] It was critical of a number of members of the Court, and its processes, but heaped praise on others. As a result, this biography suggests, the Court remained stung and internally divided, when Day O’Connor arrived. Against that background, she is credited with restoring harmony (or, at least, ostensible harmony) to the Court, over time, including by encouraging the justices to join each other each day for lunch – a tradition which, evidently, persists.
The apparently political nature of the US Supreme Court (including the process of appointments to it) may be contrasted with our own High Court. As Chief Justice Gleeson observed in 2003:
”Because so many of the High Court’s decisions have political consequences, and because the Justices of the Court are appointed by the government of the day, it is natural that the Court is watched for signs of political influence. Any appearance of such influence would be the subject of comment and criticism. What would surely be taken as such a sign would be a pattern of decision-making by members of the Court along the lines of the political colour of the government that appointed them. That does not happen. In my first five years on the Court, four of the Justices had been appointed by Labor governments, and three by a Coalition government. The only case that I can think of in which the Court divided along those lines was a tort case of no party political significance. It is interesting that this has gone unremarked. The fact that Australians take it for granted that the Court does not divide along such lines is, it seems to me, itself an achievement worth noting.”[5]
Another interesting point of difference is the apparent power wielded by the Justice’s clerks (associates), particularly in influencing judicial decision-making and judgement writing. Some associates’ preparedness to go on the record about things they might have been expected, in propriety, to have kept confidential – like, for instance, specific judges’ lobbying and jockeying to persuade others to join them in majority opinions – is surprising, but juicy reading.
Finally, the book turns to Day O’Connor’s life after retirement. It paints a vivid, and sometimes sad, picture of her attempt to maintain relevance and to continue to make meaningful contributions to public life, even as her own health (and that of her beloved husband, John) was in decline. That section answers the question one so often hears asked around the bar, when recent judicial retirees return to the fray as mediators or arbitrators: why won’t they just take up a hobby?
The book contains a full and florid depiction of Day O’Connor’s character and personality, as told in hundreds of anecdotes by those who knew her best. One of her clerk’s described how O’Connor modelled a balanced life, with the lesson being:
“Make time for your family. Take care of yourself. Experience the outdoors and get some exercise. Have a sense of the wider culture. Enjoy lively dinner parties and a varied circle of friends. Never be above taking care of people.”
But this book is not an exercise in hagiography. In a clever counterpoint to these personal anecdotes, Thomas deftly scatters objective facts among them, from which the reader is implicitly invited to draw their own inferences. To do so is irresistible.
Ultimately, despite her significant achievements, Thomas reveals Day O’Connor to have been fallible and sometimes flawed, a human like the rest of us. But what an extraordinary human being.
This is a brilliantly-executed biography of a female jurist who deserves greater attention from modern students of (American) legal history.
5 STARS
[1] http://www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29May2017.pdf.pdf
[2] Except, perhaps, for quite different reasons, the most recent appointee: Justice Brett Kavanaugh.
[3] The author relies extensively on diaries which John O’Connor kept meticulously and contemporaneously throughout his life, and whose insights into Day O’Connor’s private thoughts are truly fascinating.
[4] Woodward continues to cause controversy, all these years later. His most recent work was “Fear: Trump in the White House”, published last year amidst a flurry of Presidential criticism, delivered in a typical twilight Twitter tirade.
[5] http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_3oct.html
