Vale: Sandra Day O’Connor (1930-2023)

Justice Sandra Day O’Connor – the first woman appointed to the United States Supreme Court – died on 1 December 2023.

In 1981 President Ronald Reagan nominated her for appointment, fulfilling a campaign promise to appoint the first woman justice to the Supreme Court. Her Honour was then an Appeal Court judge in Arizona. She was 51 years of age.

Justice Day O’Connor served on the Supreme Court for 24 years, retiring in 2006.

Politically – she was a moderate – if not a conservative.

Her three days of nomination testimony before the Senate Judiciary Committee in 1991 were interesting. In an opening statement she said:

I happily share the honour [of nomination] with millions of American women of yesterday and today whose abilities and conduct have given me this opportunity for service.

In her testimony she was taxed by members about her views on various aspects of the law. She refused to answer, responding only ‘it is something in which I will not engage’.  In respect of abortion, however, she answered that, at the age of 51, she would not be faced with unintended pregnancy ‘so perhaps it is easy for me to speak’ and that she felt ‘an obligation to recognise that others have different views’.

The Senate approved her nomination by a vote of 99 to 0. She joined the Supreme Court, then headed by Chief Justice Warren Burger.

In her eulogy of Justice Day O’Connor in the New York Times, the eminent and influential Linda Greenhouse – who reported on the Supreme Court for the Times form 1978 to 2008 and is a prolific writer on legal issues – wrote:

Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.

That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003.

…

“It would be important”, she said, “to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.” Speaking at the groundbreaking for a new building at New York University School of Law in Manhattan, she added: “And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases.”

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On the bench during an argument session, she often asked the first question, and it was usually one to strike fear into the heart of even an experienced Supreme Court advocate: Is your case properly in this court? Why shouldn’t we dismiss it as moot? What gives your client standing?

“The Route to success in arguing a case before Justice Day O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshalling the facts to demonstrate a decision’s potential impact”

Carter Phillips, a lawyer who argued dozens of cases before Justice O’Connor, once said that he barely bothered to prepare openings for his arguments because he knew that from the start he would be batting back questions from Justice O’Connor. In his first argument after she retired, he recalled, he was met with silence from the justices and had to scramble to think of what to say during the opening minutes of his allotted time.

The route to success in arguing a case before Justice O’Connor lay not in invoking legal doctrine or bright-line rules, but in marshaling the facts to demonstrate a decision’s potential impact. Justice Anthony M. Kennedy described her with admiration as a pragmatist, which he defined as “paying attention to real-world consequences.” Her jurisprudence, Justice Kennedy wrote in a tribute published after her retirement, was “grounded in real experience.”

Vale Sandra Day O’Connor.

For those with a subscription to the New York Times, see link to article and 2008 interview with Justice Day O’Connor – published after her death (and the writer found it inspiring).

See also below in ‘Reviews and the Arts’ the book review – by Matthew Hickey – of ‘First – Sandra Day O’Connor’.