Open Threads

… O’Connor was accustomed to being severely underestimated, and she continues to be, judging by the sparse line of people who paid respects Monday morning. It’s said her legacy — written in opinions on reproductive freedom and affirmative action — has been undone by the court’s more recent decisions. This couldn’t be more wrong, and it misapprehends her real importance, which was to totally rewrite what was publicly achievable as a woman in a man’s profession. She believed in the power of the “qualitative individual” even in the face of enormous institutions, and from her appointment in 1981 until her retirement in 2006, whether on the high court or the tennis court, where she had a slugging forehand, she demonstrated that accomplishment could trump sexism. As she once told a doubles partner: “If you don’t keep score, someone else will. I learned that on the Court.”

Across 160,000 acres of stony canyons on the Arizona-New Mexico border, O’Connor learned something else, a softness of movement in unforgiving environments, how to listen closely to the winds and rustles in the grasses and distinguish “whatever it is can scratch you, bite you or puncture you,” as she wrote in a memoir she co-wrote with her brother, Alan Day, “Lazy B: Growing Up on a Cattle Ranch in the American Southwest.”

This deference to her surroundings and attunement of eye and ear would serve her well on the court, the alpha-manliness of which was illustrated by Byron “Whizzer” White’s crushing handshake. Deference, of course, does not mean weakness. It merely means respect, and in her it cloaked a deeply embedded strength, as one of her colleagues in the Arizona state legislature learned to his embarrassment. The story is in the excellent biography of O’Connor, “First,” by Evan Thomas. A legislator who chaired appropriations was such a notorious drunk that O’Connor confronted him. He railed at her, “If you were a man, I’d punch you in the nose.” She shot back, “If you were a man, you could.”…

The only thing she liked better than cowgirling was reading, and with a capaciousness for learning she skipped two grades in high school and galloped through Stanford’s undergraduate program and law school in just six years. At the time, only 2 percent of all law students were women, and no one would hire her. She worked for no pay at the San Mateo County district attorney’s office. And slowly, there emerged into the legal world this woman so perfectly suited to perform under the great pressure of being the first on that bench full of black robes…

Time after time what came through in O’Connor’s legal opinions, almost like secret-ink handwriting, was that hardy yet empathetic intelligence of the outdoorswoman who could do the work of a man yet hear the wing of a spar hawk. Strength dueled with delicacy in her most controversial case, Planned Parenthood v. Casey (1992), in which she upheld reproductive rights without “undue burden” of state interference. Conservatives hated the decision for its careful movement through the intellectual thicket — Justice Antonin Scalia called it “a jurisprudence of confusion.” But complexity did not mean confusion, any more than deference did weakness. “The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society,” the opinion stated. Nothing could have been clearer…

Sandra Day O’Connor was an unhinged partisan Republican with significant responsibility for the second Bush presidency and all the problems that flowed from it, from the second Iraq war to Sam Alito & John Roberts. People who obscure that are bullshitting you. https://t.co/gOYss9Mve6

— Jamison Foser (@jamisonfoser) December 1, 2023

RIP to beloved Arizonan Sandra Day O'Connor, the first woman to serve on the U.S. Supreme Court, who often does not get her due but blazed a trail for many women. https://t.co/4W0t3nzizZ

— Lucy Caldwell (@lucymcaldwell) December 1, 2023

Perspicacious legal journalist Linda Greenhouse, for the NYTimes [unpaywalled gift link]:

… Although William H. Rehnquist, her Stanford Law School classmate, served as chief justice during much of her tenure, the Supreme Court during that crucial period was often called the O’Connor court, and Justice O’Connor was referred to, accurately, as the most powerful woman in America.

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…

“Liberal” was undoubtedly not her self-image, but as the court’s rightward shift accelerated after her retirement — her successor, Samuel A. Alito Jr., was notably more conservative — she lamented publicly that some of her majority opinions were being “dismantled.”

“What would you feel?” she responded to a questioner in 2009, who asked her reaction to decisions that had undermined some of her rulings…

Despite graduating near the top of her law school class, she was offered only a secretarial position when she applied for a job at a major law firm. The notion that a woman might sit on the Supreme Court seemed distant indeed, not only then but even on the brink of her own appointment…

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?

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.”

I mean, she joined a five-vote majority that handed W the presidency while specifically saying the decision had no precedential value, which looked awfully political to me, but I guess we're all supposed to genefluct b/c she helped uphold a (narrower) version of Roe. pic.twitter.com/jnTn5bN37m

— scary lawyerguy (@scarylawyerguy) December 1, 2023

In her defense, she wanted to retire because her beloved husband had just been diagnosed with dementia, for whatever good that will do when her soul is weighed in the balance…

Ah yes, good old Justice O'Connor whining about having to keep her lifetime appointment on Election Day 2000 when it looked like Gore had won and she would of course not retire while he was President. ?? https://t.co/3rfygo6x2q pic.twitter.com/TDi3iaTo9U

— scary lawyerguy (@scarylawyerguy) December 2, 2023

Never forget:

Everyone understands that if Trump wins next year there is a 100 percent chance both Alito and Thomas peace out and retire so he can appoint two younger (45-50 year old) Federalist Society kooks to extend the majority for another 20-25 years, right?

— scary lawyerguy (@scarylawyerguy) December 19, 2023