SOT: [Reporter] Do you have any trepidation? [O'Connor] No, it should be very interesting.
SOT: [Rose] When you arrived at the Supreme Court, how was it? What was it like?
[O'Connor] Well, it was a very intense experience, to say the least.
[Rose] Intense because?
[O'Connor] Because of all of the attention that was being given nationwide to the fact that finally, after 191 years, a woman had been put on the Supreme Court of the United States. It was a very difficult job and it's hard enough to do without a lot of media attention being given to it. And frankly, you and your colleagues paid too much attention to it, I thought.
[Rose] Why? Why shouldn't we have paid attention to it, because it was a historic appointment?
[O'Connor] Yes, that's fine, but then let's move on and let's let the work be done. And it didn't seem to work that way because everywhere that Sandra went, the press was sure to go.
[Rose] Sure.
Narrator: The first woman ever to sit on the highest court in the land, Sandra Day O'Connor was meant to be a symbol––a gesture to women, proferred by a political party that had turned its back on their quest for equality.
SOT: [Reagan] I'm announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find.
Narrator: In her quarter of a century on the bench, however, she proved far more.
SOT: Send Judge O'Connor back to Arizona! She's got too bad a record in killing babies!
Narrator: Confirmed amid the first salvos of the culture wars, O'Connor would find herself holding the Court's center of gravity: striving to keep the law from radically changing direction and the country from going to extremes. Whether she actually bridged differences or merely papered over them would remain a matter of debate. But with consensus and civility her defining creed, she nevertheless became the most influential Supreme Court Justice of her time.
Linda Hirshman, Writer: She was smart, and she was staggeringly energetic, and she could carry both roles, the conventional female role that made her not scary, and the tough-minded judicial role that made her powerful. She was the perfect first.
Act One
An Open Mind
SOT: Good Evening. The constitutional procedure that could lead to the first woman on the Supreme Court formally began today. The Senate Judiciary Committee opened confirmation hearings on the nomination of Judge Sandra Day O'Connor.
Narrator: When she arrived on Capitol Hill on the morning of September 9th, 1981, Sandra Day O'Connor already was the most talked-about judicial nominee in American history.
SOT: Judge O’Connor is known as a forceful, determined, no nonsense woman not afraid to speak her mind. The brethren will no longer be the same assuming she takes her place among them.
Narrator: For the next three days, she would also be the most-watched.
SOT: [Reporter] Judge O'Connor, are you ready? [O'Connor] Well, I hope so. {Reporter] Are you nervous? [O'Connor] No, I don't think so.
SOT: Only 51 years old, she could be a power on the Supreme Court well into the 21st century.
Oscie Thomas, Collaborator, First: Sandra Day O’Connor: There are more requests for press passes to her confirmation hearing than there were to the Watergate hearings. It’s the first time judicial confirmation hearings have been run on TV gavel to gavel. And there are tens of millions of people watching.
Linda Greenhouse, Legal Journalist: Everybody that had a television was tuned in, because she was a figure of fascination. The notion of a woman on the court was so unusual. She was going to be different.
Narrator: A lifelong Republican, O'Connor had been nominated to the Court by President Ronald Reagan, and now strode into the hearing room on the arms of party stalwarts Senators Goldwater and Thurmond.
SOT: Judge O'Connor, the time has now come for you to testify. Will you stand and be sworn?
Narrator: Her conservative bonafides seemed assured.
SOT: [O'Connor] As the first woman to be nominated as a Supreme Court justice, I'm particularly honored and I happily share the honor with millions of American women of yesterday and of today...
Narrator: Outside the Senate chamber, however, fellow Republicans denounced her.
SOT: We don't want her on the Supreme Court.
SOT: Life, yes! O'Connor, no! Life, yes! O'Connor, no!
Narrator: They were Christian conservatives––the vanguard of a mounting counter-revolution forged by opposition to the Equal Rights Amendment and fueled by a generation's worth of liberal Supreme Court decisions, especially Roe v. Wade, the controversial 1973 decision that established a right to abortion.
SOT: Looking at the Democratic platform, I know that Christ would not support that platform.
Narrator: Their votes had helped catapult Reagan into the presidency.
SOT: The Supreme Court declared war on the unborn in America. The one thing he could do for us as President, the big thing, was to appoint new justices to the Supreme Court. To turn this carnage around, to stop this slaughter.
SOT: There was controversy following the president’s announcement concerning O’Connor’s positions on the issues of abortion and the Equal Rights Amendment.
SOT: Is the first woman nominated for the Supreme Court too much of a feminist? Some right-wing groups think so. Sandra O'Connor is trying to keep their opinion from endangering her confirmation.
SOT: One might inquire as to your general feelings on the rights of women and how that might be reflected in the public policy arena?
SOT: On the subject of abortion, would you discuss your philosophy on abortion, both personal and judicial?
SOT: [O'Connor] The personal views of a Supreme Court Justice, indeed any judge, should be set aside.
SOT: Judge O’Connor spent most of the day dodging specific answers.
SOT: [Senator] Turning to the subject that I'm sure probably will never end and that’s the question of abortion.
[O’Connor] Ok Senator, my personal views and beliefs have no place in the resolution of any legal issues.
SOT: [O'Connor] I do not believe that as a nominee I can tell you how I might vote on a particular issue.
SOT: [O'Connor] It's just I feel it's improper for me to endorse or criticize that decision.
SOT: [Biden] Judge, I'm going to vote for you. I think you'll make a heck of a good judge; but I'm a little disturbed about the reluctance to answer any questions. Um...
Narrator: Within the Senate chamber, O'Connor's assertion of judicial independence was a virtue––and by the hearings' third day, she was widely thought to have a lock on the confirmation.
But when it came to the demonstration in the street––and the growing ideological divide over American values––no one could say for certain which side she was on.
Equal/Not Equal
Narrator: Independence perhaps came naturally to a person raised as Sandra Day had been, miles from nowhere in the southeastern corner of Arizona, on a 160,000-acre cattle ranch called the Lazy B.
Evan Thomas, Author, First: Sandra Day O’Connor: It took a man on horseback a whole day just to ride across it. The Day family called it their own country, and it was. There was nobody else there.
Linda Hirshman, Writer: Arizona was really a frontier place in the 30’s when she was growing up, so everybody had to pitch in. It was just a tiny little society in which she was an equal.
Oscie Thomas, Collaborator, First: She learned to fire a rifle when she was old enough to hold one, to drive a truck when she was about 10.
Scott O'Connor, Eldest Son: You can’t overstate the self-reliance you get growing up in a place like that. You solve your own problems and the job isn't finished until it's finished.
Narrator: Years later, O'Connor often would recall the day she was charged with delivering lunch to the ranch hands out working the roundup.
Scott O'Connor, Eldest Son: She loaded up the old Willie’s Jeep with lunch and started out for the rendezvous point where the cowboys were going to be branding the calves… and she got a flat. Here she is, all of, you know, 14 or 15 years old and had to change a flat tire on a four-wheel-drive Jeep in the middle of nowhere, without any help and get onto lunch.
Oscie Thomas, Collaborator, First: She was very proud of herself when she achieved this. She gets out to the roundup. She says, Dad, I had a flat tire, and I fixed it. Her father says you’re late. Next time leave earlier.
Linda Hirshman, Writer: She always said she learned a lesson from that, which is there were no excuses. You either did what you had to do, or you didn’t do what you had to do.
Narrator: They were reluctant ranchers, Sandra's parents: Ada Mae, a college graduate from El Paso who greeted each morning on the Lazy B wearing stockings and perfume, and Harry, a champion high-school athlete, bound for Stanford when he was drafted to rescue the family ranch.
Scott O'Connor, Eldest Son: He missed out on the education he dreamed of. And instead he had to go back to this miserable ranch that wasn't his choice. Mom was born right into that picture. All of his dreams I think had to be delivered through her. She was the vehicle.
Narrator: Shipped off to her grandmother in El Paso for the school term from the age of six, Sandra made it her business to excel––skipping two grades and enrolling at Stanford when she was just 16.
Evan Thomas, Author, First: She went to Stanford in the fall of 1946 and it was as she wrote home, utopia. It was this land of learning, it was beautiful. It was fresh, green. It was everything the ranch was not in the sense of being full of life. She just loved it.
Oscie Thomas, Collaborator, First: Like campuses across the country, Stanford has welcomed G.I.s, and one of her friends says that it’s full of smiling men in bomber jackets.
Linda Hirshman, Writer: Sandra Day was confident in the way that a very smart, very treated-like-an-equal-since she-was-able-to-talk young woman would be. So, when she went to Stanford from this remote ranch, and all of these more sophisticated young women, from like, San Francisco and stuff were thinking, you know, who’s this nobody? And the next thing they knew, she had captured the most desirable guy at the dance and was riding around in his convertible with him.
Narrator: Curious, self-motivated, always prepared, Sandra sailed through her undergraduate courses––and inspired by a charismatic lecturer named Harry Rathbun, continued on to study law.
Oscie Thomas, Collaborator, First: He taught her that you can make a difference in the world, that a single person can have an impact, and that women can take their place alongside men and men need to let them. His encouragement helped her decide that she could go to law school.
Evan Thomas, Author, First: Sandra Day was near the top of her class at Stanford Law School, top 10%, law review. And any student with a B average could apply to any one of about 40 law firms in San Francisco and Los Angeles, and she applied to all of them. She was given one job interview and the lawyer there asked her, "How well do you type?"
Melissa Murray, Legal Scholar: Her experience was very much like many of the women who graduated from those elite law schools––just plenty of promise, certainly incredible credentials, but a legal market that was absolutely inhospitable to them.
Linda Hirshman, Writer: She was told repeatedly that the firm didn’t hire women. And I think it came as a shock to her. She never got the message that there were limits on what she could accomplish. She was as confident that the world would reward her and offer her a good life as any man would be.
Oscie Thomas, Collaborator, First: She knew she was as smart as almost any of the people who were getting multiple job offers. Her friend Bill Rehnquist was on his way to Washington to clerk on the Supreme Court. And she did not think that she would be left in an empty room when everybody else had gotten their jobs.
Narrator: Sandra and Bill Rehnquist had been something of an item their first year at Stanford Law, and writing to her from D.C. that summer after graduation, he took it into his head to propose.
By then, however, the popular Miss Day's affections already had been pledged––to a charming, urbane classmate named John O'Connor, who'd been paired with Sandra for a law review proofreading assignment and had taken her out for the next 41 nights in a row.
The two were married just before Christmas 1952; but the new Mrs. O'Connor hadn't gone to law school to become a wife.
Linda Hirshman, Writer: She had heard that a local assistant district attorney had once hired a woman in his office, so she went to him and applied for a job.
SOT: [O'Connor] And he said, "Well, first of all, I don't have an opening. "Second of all, I don't-- I don't even have a place to put you. I don't have an empty office." I was dying to practice law. So I said, "Well, you know, if need be, I'll work for you for nothing. And, if you don't have a place for me to sit, I'll sit with your secretary, if she'll have me."
Ruth Mcgregor, Former Law Clerk: She liked to say that she didn’t feel she had been discriminated against. And yet, it’s obvious that she was. I think she didn’t want to feel as if she was in a weaker position than the men, and she didn’t want to complain about it for fear that they would take it as a sign of weakness.
SOT: [O'Connor] I mean, it seemed to me they should be hiring women, but I went where people were hiring women and got on with the rest of my life.
Not a Feminist, but––or, SOC's Wily Rise
Narrator: Phoenix was a boomtown when the O'Connors settled down there in 1957; but as Sandra recalled it, "you could fit all the women lawyers in [town] around a table."
While John easily found a position with a private firm, she, as a woman and pregnant at that, had no such luck. So she opened a storefront law practice and took whatever cases came through the door.
When that proved too much after a second and then a third son came along, she volunteered to write state bar exam questions, handled bankruptcy cases, joined the Junior League and became president, all while mincing and sautéeing her way through every recipe in Mastering the Art of French Cooking.
Scott O'Connor, Eldest Son: She was very competitive, let's put it that way. She always had to be doing something. And you know, you had to do well.
Narrator: John, meanwhile, was making a name for himself as a commercial litigator, and forging connections with the Phoenix elite.
Oscie Thomas, Collaborator, First: John was civic-minded. He was head of a hospital board. He was on the Rotary. He had a path that some people would have said would lead him right into politics. But he knew that his wife was every bit as accomplished as he was.
Scott O'Connor, Eldest Son: Dad loved helping her open doors, meet people. He helped set a scene or an opportunity, and all she had to do was show up and be herself and she'd win them over.
Narrator: When John became active in Arizona's Republican Party, Sandra did too––at first, stuffing envelopes for U.S. Senator Barry Goldwater, their neighbor in the affluent Phoenix suburb of Paradise Valley.
SOT: [singing] Young, courageous, dedicated, on every issue...
Rick Perlstein, Writer: Barry Goldwater was promoting the Republican Party as kind of this new redemptive force.
SOT: ...a great champion from the West: Barry Goldwater, Arizona's best!
Rick Perlstein, Writer: The Barry Goldwater faction of the Republican Party who ran Phoenix were quite explicitly kind of "good government" conservatives. And one of the ideas of "good government" was that using the free marketplace––in the absence of bureaucracy––this clean-cut, elite generation of entrepreneurs were going to build this sort of businessman’s republic.
SOT: [Goldwater] When it operates with as much absence of government interference as possible, the economy operates the best.
Narrator: In Goldwater, Sandra heard echoes of her father, whose tirades against the intrusions of the federal government had been a dinnertime staple back on the ranch. In politics, she found an outlet for her ambition.
SOT: [Goldwater] We are conservatives...
Rick Perlstein, Writer: Political volunteers who were women were the lifeblood of parties, right? They had all this time on their hands, they had resources. So if you were an ambitious woman, you would find, uh, welcoming arms in, in you know a kind of a party precinct office, and if it’s a party like the Republican party in Arizona that has this young, dynamic senator at its head, attaching yourself to him is like attaching yourself to a rocket ship.
Linda Hirshman, Writer: So she got involved in this up-and-coming Republican party, which was a very smart move, because when she decided to go back to work, she could rattle her political network and get what she wanted, which was a paying job.
Narrator: After five years as a nominal homemaker––and with her children all now in school––Sandra returned to the law in 1965, as Arizona's Assistant Attorney General, a low-paid position with a vague job description that served as a primer in the workings of state government.
Four years after that, a Republican seat in the Arizona Senate was vacated mid-term, and she appealed to her Party connections to get herself appointed. She would hold the position through the next two elections, just as the women's movement began to stir.
SOT: What do we want? Equal rights! When do we want it? Now!
Linda Hirshman, Writer: She got to the Arizona state senate when the feminist movement was taking off. And she admits that she was put on great committees that a freshman senator would never have been put on if she hadn’t been a woman. They were showing her off.
Narrator: Senator O'Connor did not identify as a feminist. As she once put it to members of the Rotary and Kiwanis clubs: "I come to you with my bra and my wedding ring on." But she'd nevertheless arrived at the Arizona statehouse with an equal opportunity agenda of her own.
Ruth Mcgregor, Former Law Clerk: Her view of a feminist who was somebody who was demonstrating in the streets and that’s not who she was. But nothing would frustrate her more than to suggest a woman wasn’t able to do a job.
Oscie Thomas, Collaborator, First: One of the important things to her was the art of the possible. She said, you get your foot in the door, and you put on a good show. You show people that women can do a good job, and they’ll give you more jobs.
Linda Hirshman, Writer: Which is her way of saying, I’m not a feminist, but...That did not actually help the movement, but it did help her make her way into a hostile environment which helped the movement.
Narrator: O'Connor read the legislation that no else did and worked across the aisle when it served the interests of the state––which, given the Republicans' slender majority, was nearly always.
Linda Greenhouse, Legal Journalist: What she learned was the virtue, the necessity of negotiation, of compromise, of bringing people together to reach a result that everybody could live with.
Evan Thomas, Author, First: Her colleagues called her a know-it-all, that know-it-all from Stanford. She once amended a bill to remove a comma. But they respected her. She was somebody who got it done, but didn’t make you feel that she had gotten it done. She could play you without you feeling played.
Narrator: On the heels of her re-election in 1972, O'Connor's Senate colleagues made her Majority Leader, the first woman in any state in the country to ascend to that post. With it came a responsibility to push through her party's agenda, whatever the obstacle.
Evan Thomas, Author, First: She had one particular antagonist, the chairman of the House Appropriations Committee, a fellow named Tom Goodwin. Tom Goodwin was a drunk-by-10-AM drunk, a real drunk, and he would just disappear with the budget. So finally she called him on this and said, you know, "You're drinking too much."
Linda Hirshman, Writer: And he said to her, if you were a man, I’d punch you. And she looked at him and said, if you were a man, you could. So there was a toughness, a mental toughness there that was extraordinary.
Narrator: Arizona feminists expected the new Majority Leader would use her clout on behalf of the ERA, which had passed Congress with overwhelming bi-partisan support in March 1972.
SOT: The Equal Rights Amendment would strike down all state laws that discriminate against women, in the home, at school and on the job.
Narrator: O'Connor had championed the amendment then––taking to the floor of the Senate to urge her colleagues to ratify. But the measure had been idling ever since, and she now sensed a shift in the political winds, driven by a right-wing Republican activist named Phyllis Schlafly.
SOT: [Schlafly] If the Equal Rights Amendment is ratified people will then realize it’s quite a fraud. It won't do anything for women, but it will take away rights that women now have.
Rick Perlstein, Writer: Phyllis Schlafly came out foursquare against the Equal Right Amendment as, um, basically a... elite conspiracy to rob women of the privileges they derived from traditional gender arrangements.
SOT: [Schlafly] This would remove and wipe out the laws of fifty states which make the husband primarily responsible for the financial support of his wife and children.
Rick Perlstein, Writer: And it was a very powerful argument for people who held these traditional values.
SOT: Opposing the federal amendment are women like these, members of STOP . ERA. According to them, the ERA is anti-family, anti-God, a government intrusion that will remove the legal protections that have shaped women's lives for centuries, a government intrusion that will destroy the American family.
Narrator: It was troubling to O'Connor, the right-wing fervor rising in the GOP ranks. Like many moderate Republicans, she cared more about good government than controversial social issues––and didn't care much for religion when worn on sleeves.
But Schlafly's campaign already had mobilized religious conservatives across the country––among them, as O'Connor well knew, numerous members of her own Republican caucus.
With feminists clamoring for an up-or-down vote on the floor of the Arizona senate, Majority Leader O'Connor took stock of the ERA's chances––and quietly let the measure die in committee.
Scott O'Connor, Eldest Son: The feminists were disappointed in her, you know, "You didn't try hard enough. You're a powerful figure. You're Majority leader. Why couldn't you force it out of committee?" But she didn't have the votes to get it out of committee.
Evan Thomas, Author, First: Instead, she made a list of every law in the state of Arizona that discriminated against women.
Evan Thomas, Author, First: She made it her business to change every single one of those laws, and she did––without getting into a fight that would have been great for virtue signaling but wouldn't have gotten anywhere.
Linda Hirshman, Writer: Men have power in America, so it's absolutely central that she figured out a way to work with them. She was able to rise without triggering that angry resentment that women are almost always greeted with when they are the first great something.
Act Two
A Person for All Seasons
Narrator: By the early 1970s, the O'Connor home on Denton Lane had become a hub––and Sandra and John, Paradise Valley's golden couple.
Evan Thomas, Author, First: They were sporty. They were good looking. They gave good cocktail parties. But there was something else going on there. They were equal, and that was pretty unusual. People could see their mutual regard, and they were kind of fascinated by it.
Ruth Mcgregor, Former Law Clerk: Two lawyers can sometimes be competitive one with another, but they really never were. They both wanted to be participants in their professions and in the community, so they supported one another in what they wanted to do.
Scott O'Connor, Eldest Son: On any given weekend during the legislative session, Mom would be in the office in the great room in our house and Dad would be at the little roll-top desk in the master bedroom, and they'd each be drafting away with pencils on yellow legal pads. And they'd write and write and write, and then they would trade pads and edit each other's work, and it would turn into a bill at the legislature the next—you know, on Monday. We had no idea that this wasn't normal. We just thought that's what parents did.
Narrator: Sandra, though, was restless. Even before the Senate's session drew to a close in 1974, she was contemplating her next career move. "I was never one of the boys," she later said.
Linda Hirshman, Writer: She did not suffer fools gladly, even though you didn’t see it. She was too smart to show it. But she was tired of having to play politics and beg and wheedle and manipulate with people who were clearly not as smart as she was.
Scott O'Connor, Eldest Son: She thought, "You know, if I went back into the law and not this politicking, I'd be working with people that are playing by the rules. They don't interrupt. Everybody gets their turn to speak. There's a system, a process. Supposedly we get a just result. I think I'd like that a lot more than this gladiator-style thing that I'm doing here now."
Narrator: O'Connor had decided to become a judge–-an ambition that had been gathering force since at least 1971, when President Richard Nixon, for whom she'd campaigned, put her one-time suitor Bill Rehnquist on the U.S. Supreme Court.
Scott O'Connor, Eldest Son: Mom and Dad were very dear friends with Bill Rehnquist, who started practicing law in Phoenix. You know, they played bridge together a couple times a week. And so, for Mom to have somebody that she's gone through the same career with, the same law school, the same courses, the same exams with, get to that position, how could you not believe that it wasn't possible for you? Because you've been all the same places and done all the same things. Why not you?
Narrator: Of the nearly 9,000 judges in the United States at the time, only 300 were women; but O'Connor was undeterred.
Declaring now for an elected seat on the Maricopa County Superior Court, she spent 13,000 dollars on a mass mailing to Republican households, and beat out her experienced, male opponent with 70 percent of the vote.
The career pivot would prove consequential. Confronted over the next five years with a daily onslaught of human dramas––burglaries, kidnappings, murders, divorces––an experience she later described as "sitting all day in a soap opera," O'Connor earned a reputation for being well-prepared, tough, fair.
By 1979, she'd been elevated to the Arizona Court of Appeals. And there she sat a year later, when Ronald Reagan, then the Republican nominee for president, staked out a position that was likely to cost him with women voters.
Linda Hirshman, Writer: The gender gap, which we hear so much about now, it made its first appearance in the election of 1980.
SOT: [Carter] The Equal Rights Amendment only says that equality of rights shall not be abridged for women. [Reagan] Yes, Mr. President, once again, I happen to be against the amendment.
Narrator: It was an abrupt about-face: the Republican Party had endorsed the ERA for four decades. But the rise of the Christian right had changed the calculus.
Looking to capture the votes of religious conservatives, the GOP now had made common cause with Reverend Jerry Falwell's Moral Majority––an activist, evangelical political organization anxious to restore to America what they called "family values."
SOT: [Falwell] We've got to raise up an army of men and women in America who call this nation back to moral sanity and sensibility.
Rick Perlstein, Writer: The Moral Majority becomes the center of Ronald Reagan's grassroots political appeal. And one of the reasons they were so powerful is much like labor unions, churches, could form the organizational backbone of a political campaign. They're already organized into an infrastructure; you know, all we need to do is kind of flick on the switch.
SOT: [Fallwell] During the 1980s, we have a three-fold primary responsibility. Number one, get people saved. Number two, get them baptized. Number three, get them registered to vote.
Rick Perlstein, Writer: So you had this very powerful constituency within the Republican Party, the kind of people who are quite explicitly opposed, to things like the Equal Rights Amendment, abortion. So the Party had to make a choice.
Linda Hirshman, Writer: In 1980, the Republican Party affirmatively removed support for the Equal Rights Amendment from its platform and took their first anti-abortion stance.
SOT: Reporter: After forty years of the GOP leading on this issue, Ronald Reagan is now going to be perceived, rightly or wrongly as against women’s rights.
Linda Hirshman, Writer: So the Republicans were moving against the feminist agenda. And women voters responded by not wanting to vote for their candidates.
Evan Thomas, Author, First: Ronald Reagan in the swing state of Illinois was 11 points ahead with men but nine points behind with women. So his political advisor said, "We've got to do something about this."
Jason Johnson, Political Scientist: You can’t have a political movement that’s just men. They had to find a way to attract college-educated white women.
SOT: [Reagan] I'm announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find.
Jason Johnson, Political Scientist: It was a cynical move by Reagan.
Evan Thomas, Author, First: However, once he became president, he got serious about it.
SOT: President Reagan will have the rare chance to appoint someone to the Supreme Court. Justice Stewart announced his resignation today saying,"it's time to go."
Scott O'Connor, Eldest Son: All of a sudden Mom and Dad were kind of looking at each other, going, "Could it happen?" They didn't want to jinx it by talking about it, but I'm sure they were talking with each other that it was possible. And Dad mobilized every contact he knew to make sure Mom's name got in the hopper.
Narrator: As a judge, O'Connor had never heard a federal case. Nevertheless, her name already was at the top of the Reagan Justice Department's shortlist.
In fact, Sandra been recommended repeatedly––by both Arizona Senators, Goldwater and DeConcini; by Bill Rehnquist; and by Warren Burger, the Chief Justice of the Supreme Court, who'd met Sandra through mutual friends on an excursion to Lake Powell the previous summer and had been thoroughly charmed by her.
Evan Thomas, Author, First: The Reagan team came down to see her—Ken Starr and John Rose from the Department of Justice. And it was 100 degrees, and she gave them salmon mousse. I remember John Rose said, "A hundred degrees and salmon mousse. How does she do it?" All while answering their questions about legal issues with great confidence, kind of a humble confidence but confidence. And she absolutely wowed them.
SOT: [Reagan] Ladies and Gentleman, I have a statement to make. I will send to the Senate the nomination of Judge Sandra Day O’Connor of Arizona Court of Appeals for confirmation as an Associate Justice of the United States Supreme Court. She is truly a person for all seasons.
Narrator: O'Connor's nomination led every news broadcast in the country––
SOT: Reagan will nominate the first woman to sit on the United States Supreme Court.
SOT: Reagan made the historic announcement...
Narrator: ... and women everywhere thrilled to a sense of new possibilities.
SOT: ...announced that he has chosen a woman...
Ruth Mcgregor, Former Law Clerk: I was actually driving to work. And on my car radio I heard who it was that he had nominated.
SOT: … and another barrier fell.
Ruth Mcgregor, Former Law Clerk: And I just burst into tears. I pulled my car off to a side street and just sat there and cried for a while until I could get back under control and drive to work.
Melissa Murray, Legal Scholar : I remember my mother said, "Girls can be judges now. When I was a girl, I was told I could only be a teacher or a nurse. This means you can do things that I never dreamt of doing."
SOT: [O’Connor] Good morning. This is a momentous day in my life and the life of my family. And I'm extremely happy and honored to have been nominated by President Reagan. If I am confirmed by the United States Senate, I will do my best to serve the Court and this nation in a manner that will bring credit to the president, to my family, and to all the people of this great nation.
An Achieving Woman Without an Edge
Narrator: O'Connor later would insist that when Reagan called to say the nomination was hers, her "heart sank." She doubted her ability to do the work, she told her husband, and dreaded so changing their lives.
John, faced with the prospect of leaving a well-established practice and a city that he loved, had no such qualms.
Ruth Mcgregor, Former Law Clerk: What would have been very difficult for most men in 1981, did not seem to be that difficult for John. He saw it, I always thought, as a challenge. Not as a problem. I don’t think John ever had any doubt that she could do anything that she wanted to do.
SOT: [John O'Connor] She's always been very competent and articulate. Earlier in our marriage, fewer people knew that. Now more know it. [Reporter] Scott O'Connor, the oldest of her three sons, says he's proud his mother received the nomination.
[Scott] I think we've all talked about it or been told about the possibility over the years but never thought of it very seriously until, you know, just the last few short days.
Scott O'Connor, Eldest Son: Lines of news vehicles up and down our street. Everybody waiting outside with cameras ready to flash if anybody made an appearance. And then, you know, every magazine cover had her on the front. Every newspaper had her on the front. The congratulatory calls, you know, were coming in like crazy. And nobody's prepared for that.
Evan Thomas, Author, First: She knew almost nothing about constitutional law. She was a state lawyer. As a state Court of Appeals judge, she dealt with state issues. And her least favorite course at Stanford Law School back in 1952 had been constitutional law. She had to jump in absolutely cold.
Narrator: O'Connor's nomination had sparked immediate controversy. At issue: her support for the ERA and, more ominously, positions taken in the Arizona Senate that suggested she was in favor of abortion.
Melissa Murray, Legal Scholar : She had voted in 1970 for a bill that was intended to decriminalize abortion in the state. It was never passed; but it came up, and it became something of an issue.
SOT: The self-described Moral Majority opposed President Reagan's choice, calling it a mistake and saying the church people would desert him in droves.
Linda Greenhouse, Legal Journalist: There was a big right to life movement in Arizona and she had not played with them. And so, the right-to-life crowd didn’t trust her. The pro-choice crowd didn’t necessarily trust her, either. Nobody knew what her views were, but all the right-to-life crowd knew was she wasn’t marching along with them.
SOT: The whole reason the Right to Life movement exists is because abortion was legalized by the U.S. Supreme Court. This is an appointee to that very court. This is the most important appointment that President Reagan could make. We feel that it is one that we simply cannot tolerate.
Narrator: The objection to O'Connor came from one faction of the Republican Party; but it signaled a dramatic shift. The last nominee to the Court––in 1975, two years after Roe v. Wade––had been confirmed without being asked a single question about abortion.
Linda Greenhouse, Legal Journalist: The 1976 Republican party platform said, basically, we’re a party with many views on abortion. It wasn’t until 1980, the platform that Reagan ran on, seven years after Roe, that the party said we are committed to the right to life, and we’re committed to finding judges who will fully respect the right to life, which of course, was code language for who would overturn Roe against Wade.
Rick Perlstein, Writer: The idea that judges should be chosen for their views on, quote-unquote, human life. This broke a norm. When did it become that the litmus test was abortion instead of fidelity to the Constitution?
Rick Perlstein, Writer: But things were very much in flux in 1981. There's a real kind of civil war within the party over whether this is direction they should go.
SOT: [Goldwater] If it's going to take a fight, they're going to find old Goldy fightin' like hell. I'm probably the most conservative member of Congress, but I don't like to get kicked around by people who call themselves conservatives on a non-conservative matter.
Narrator: President Reagan casually dismissed those opposed to his nominee as fanatics; but he fretted about them nonetheless. The Republicans' one-vote majority in the Senate included at least a dozen far right conservatives.
SOT: [Grassly] We have been having a Supreme Court that is very activist, usurping authority basically left to the Congress of the United States, so I'm concerned whether or not this nominee is a person who's going to be an interpreter of the law or whether it's going to be a person who wants to make the law.
SOT: Judge O'Connor arrived in Washington late yesterday for a round of informal meetings with senators who will be voting on her confirmation.
Narrator: What the president hadn't fully grasped, however, was the force of O'Connor's personality––which, over the course of five days in July, she unleashed upon no fewer than 39 senators. She dazzled them all.
SOT: [Reporter] Senator, now that you've finally met the lady...
[Helms] Well, I'm terribly impressed. I've known her for ten seconds now.
Linda Hirshman, Writer: She was a Republican nominee from a very conservative president. She went to call on Ted Kennedy, the liberal lion of the Senate. And she walked into his office and reached out her hand and looked at him and said, Senator Kennedy, how’s your mother doing? He never forgot it.
Linda Hirshman, Writer: She was fantastic with powerful men. She made powerful men feel like they were the only person in the room and they just flipped.
SOT: [Grassley] So I think what I saw in this lady, besides being a very down home-type person that I appreciate very much, a very personable person, I see a person who is going to exercise judicial restraint.
Linda Hirshman, Writer: She did what she always does. She figured out where the lines of power lay. She educated herself brilliantly about the questions that she would be asked. She was perfectly well prepared, and utterly attuned to each individual’s emotional needs.
SOT: [Senator] Congratulations. [O'Connor] Well, thank you.
Narrator: In the end, O'Connor's hearings in September were more spectacle than substance––the outcome all but pre-determined, if not preordained. The final vote to confirm was 99 to zero.
SOT: I now declare that she has been approved by this committee overwhelmingly. We now stand adjourned.
SOT: Democrat joining Republican, conservative joining liberal, and unanimously approved Arizona Judge Sandra Day O'Connor as the first woman to sit on the Supreme Court.
Narrator: The confirmation of a woman had put every politician in the room on the right side of history––and exactly the right sort of woman on the bench.
As one female columnist noted: "[O'Connor] is good looking without being alienatingly beautiful and bright without being alarmingly intellectual...She is an achieving woman without an edge."
Jason Johnson, Political Scientist: Sandra Day O’Connor was a savvy political pick. Here’s this woman who looks like she could be on the PTA. She was not someone who was about to overturn the apple cart and allow men to be in a position where they would have to defend themselves.
Sc6: Role Model
SOT: [Reporter] How do you feel today going to work? [O'Connor] Well, I feel fine; but I'd like to see the oncoming traffic.
SOT: Justice Sandra Day O'Connor took her seat on the Supreme Court today, the first woman Justice in the 191 years of the Court.
Narrator: Justice O'Connor was sworn in on September 25th, 1981––one week before the first Monday in October, when, by tradition, the High Court's session begins.
SOT [SOC_2008]: [Reporter] As spectators applauded, Mrs. O’Connor emerged with Chief Justice Berger to pose for photographers. She said her robe which is shorter than those usually worn in federal courts was the one she used in Arizona. And she had no intention of replacing it until it wore out.
[O’Connor] I’ll buy a new one eventually if this one gets frayed.
Narrator: She was the lone woman among eight men––and the two previously known to her offered not a word of welcome or wisdom once she arrived.
SOT: Beautiful! [Reporter] Miss O'Connor?
[Burger] Justice O'Connor.
[Reporter] Justice O'Connor. Sorry.
Narrator: "The Court is large, solemn. I get lost at first," O'Connor confided to her journal. "It is hard to get used to the title of 'Justice.'"
Evan Thomas, Author, First: Nobody's expectations were greater than her own. One of her favorite expressions was, "It's good to be first, but you don't want to be the last." She knew that if she blew it, there weren't going to be any more female appointments for a long time.
Scott O'Connor, Eldest Son: She had enough self-confidence that she was willing to take it, but that didn't mean she wasn't scared of the first term, the first few cases, the first few weeks.
Oscie Thomas, Collaborator, First: Initially, it’s rocky. She is there at her first oral argument. She knows that people are watching her.
SOT: Mrs. O'Connor took her seat for the opening argument, a case about oil leases. Thirty minutes later she asked her first question, though the lawyer seemed not to hear her efforts to interrupt.
Oscie Thomas, Collaborator, First: She starts to ask a question, and the lawyer at the podium says, "Let me finish." That is not the way Supreme Court practice works. That evening in her journal, she wrote, "I felt put down."
Evan Thomas, Author, First: There was the expectation that as a woman, she would keep a low profile. This was the expectation on the Court itself. When she got there, the Chief Justice of the United States gave her a memo, a psychological study, about what happens when a woman enters a group of male leaders. The report found that it was unsettling, off-putting, to the male leaders, and therefore, the woman should be passive. Justice O'Connor couldn't believe it. But she just rolled with it and she set about proving herself.
Narrator: With the Court slated to hear 167 cases that first term, the work of a justice would've been challenge enough; but as the first woman on the Supreme Court, O'Connor was also a symbol.
SOT: [Reagan] I used to kiss you on the cheek, but I’m afraid to now that you’re a Supreme Court Justice.
[O’Connor] Oh, Come on.
Narrator: Continuously trotted out for White House photo-ops and swearing-in ceremonies...
SOT: [O'Connor] Raise your right hand...
SOT: [O'Connor] ...and repeat the oath after me.
Narrator: ...asked to give speeches all over the country and invited to every party in town, she found herself plunged into a curious sort of celebrity. During her first term alone, she received some 60,000 letters––more than any other justice in history.
SOT: [O'Connor] Dear Justice O'Connor, don't be intimidated by all those men and especially the Chief Justice. You all put on your robes the same way.
Oscie Thomas, Collaborator, First: She is inspiring women around the world, and warming to this role, not of being a celebrity—she actually didn’t like that—but of being a role model.
SOT: [O'Connor] You gonna be a lady lawyer, Beth? They don't make much money, but they have a lot of fun.
Linda Hirshman, Writer: No matter how much was piled on her plate, she always managed to do it. Work all day at the court and then go to dinners and then go and give speeches and then go to ribbon cuttings. And people actually thought she had a twin.
SOT: [O’Connor] My colleagues all greeted me very warmly, and I think they’ve adjusted very well to my presence (laughter).
Scott O'Connor, Eldest Son: She was thrilled that she represented opportunities that she didn't have earlier in her career, as the one that broke the glass ceiling onto the Supreme Court. Boom, overnight, that changed everything.
Enigma
Narrator: Meanwhile, as O'Connor settled into the actual work of the Court, partisans on both sides of the aisle scrutinized her every move.
Linda Greenhouse, Legal Journalist: She thought of herself as a cowgirl. And she comes to Washington in mid-life, in a bright spotlight, a figure of history the minute she took that oath, exposed to controversies, doctrines, ideas that she had never had occasion to enmesh herself in.
Narrator: The docket in those days was littered with the judicial fallout of Supreme Court decisions handed down in the 1950s and 60s, by a liberal majority under Chief Justice Earl Warren––rulings that had revolutionized constitutional law and drawn the lasting ire of conservatives.
Linda Greenhouse, Legal Journalist: The Warren Court pushed a number of hot buttons on the American landscape. One was race. They were the court that ruled that racial segregation was unconstitutional. Another was religion. It was the Warren court that said you cannot have organized, official prayer in the public schools. And then the one was crime.
Melissa Murray, Legal Scholar: You saw incredible movement on criminal procedure, the rights of criminal defendants, Miranda v. Arizona, you have the right to remain silent. We’d never seen anything like this.
Evan Thomas, Author, First: A whole series of liberal decisions that expanded federal power into the states and upheld individual rights and group rights.
SOT: Good evening. In a landmark ruling, the Supreme Court today legalized abortions.
Evan Thomas, Author, First: The abortion decision in 1973—that was after Warren left, but it was part of the same progression. All of this was considered to be too much change too fast to a large section of the population that wanted to make the Court more conservative.
Narrator: At first, O'Connor seemed in step with the cause. Forging an alliance with Justices Burger and Rehnquist, the Court's leading conservatives, she quickly emerged as an advocate for the "new federalism"––a phrase coined by Ronald Reagan to describe the effort to return power to the states. She seemed generally in favor of the death penalty, pro-business, and against public policies based soley on race.
Linda Greenhouse, Legal Journalist: From her first several years on the Court, one would have thought, here’s somebody that’s going to be a rock-rib Republican conservative judge.
SOT: [O'Connor] Whenever some affirmative action is taken to help Employee A, you may hurt at the same time Employee B. And the employer could be liable to the minorities for apparent discrimination on the one hand. And on the other hand, the employer may be liable to non-minorities if affirmative action is taken. So that’s kind of a tough road to walk, isn’t it?
Linda Greenhouse, Legal Journalist: She was very, very skeptical of affirmative action. She was way over on—on crime. She was skeptical of Roe against Wade.
Narrator: What was also clear, however, was that O'Connor was cautious––and that she did not, as one journalist noted, "fit neatly into the conservative box."
SOT: She seems to have all the makings of a law-and-order justice. But there are also indications that she can be receptive to new judicial ideas and sympathetic to societies’ underdogs.
Evan Thomas, Author, First: Early in Justice O'Connor's time, her second year, a case comes before the Supreme Court, a very important case in gender discrimination.
SOT [archival court audio]: We will hear arguments next in Mississippi University for Women against Hogan.
Ruth Mcgregor, Former Law Clerk: A man wanted to attend the Mississippi University of Women Nursing School. It was close to where he lived. It was a public university, but it was only for women.
Narrator: One of a series of cases strategically brought to challenge gender discrimination––and thereby expand women's rights––the Hogan case struck a particular chord for O'Connor.
SOT: [O'Connor] Mr. Gholson, you have referred to the demand for a single-sex institution as being its justification. Would you make the same argument if there were a demand for an all-white publicly funded education?
Evan Thomas, Author, First: At the Supreme Court conference, the vote is tied; four justices say yes, four justices say no. As the junior justice, O'Connor has the last vote. It's up to her. She's the fifth vote to let men in.
Narrator: O'Connor was assigned to write the opinion for the liberal majority.
Linda Greenhouse, Legal Journalist: O’Connor ruled that the exclusion of men from a nursing program was based on stereotype, and it couldn’t stand as a matter of equal protection under the Constitution. That showed the world that, although she had never presented herself as a feminist, that the first woman on the Supreme Court was going to make a difference when it came to sex discrimination.
Narrator: Then, in a move that would become a kind of signature, O'Connor narrowed the ruling to the facts of the case.
Linda Hirshman, Writer: She added a footnote saying that this decision would only apply to the nursing school, even though all of the reasoning of the opinion on its face applied to any university. It was the narrowest possible holding.
Ruth Mcgregor, Former Law Clerk: She regarded that as the appropriate approach for the Court to take. You decide the issues that the Court accepted, and that’s the way that the Court moves the law along.
Viet Dinh, Former Law Clerk: Justice O'Connor did not think that it was the role of the Court, to create revolutions, to lead reforms, but rather, to serve as a limited check on the powers of the government. If change is to be had, it is to be done through the legislative process.
Linda Hirshman, Writer: So her judicial philosophy was, you don’t know if you’re going to do harm or good if you make too large of a ruling. Make the narrowest ruling to resolve what you have in front of you, and stay within the sweet spot of America’s belief system.
Viet Dinh, Former Law Clerk: She was a very effective politician well before she was appointed to the Supreme Court. And she had faith in that democratic process and the votes of the people.
SOT: [Moyers] Am I wrong in thinking that your experiences in the politics and law of Arizona more strongly shaped your constitutional views than being a woman?
[O'Connor] Oh, I don’t know. I leave that for other people to say. I don’t know.
[Moyers] But as I read your opinions I come, time and time again, upon your reference to the states, much more so than I do any, what might be called, feminist insights.
[O'Connor] I am a product of state government. And I think that it is appropriate that we try to preserve strong and capable state governments. Because I still tend to believe that the best government is that government closest to the people.
Evan Thomas, Author, First: On the really tough cases, the big social issues like affirmative action and abortion, religion, Justice O'Connor's view was that the Supreme Court is not the last word.
SOT: [Moyers] Nothing’s ever settled on this Court for sure, is it?
[O'Connor] No, it’s never an absolute end to any issue. It’s more a process of a continuing dialogue.
[Moyers] Dialogue — between?
[O'Connor] Between the court and the Congress and the nation as a whole.
Always On
SOT: [Reagan] Today, I received with regret, Chief Justice Burger’s letter formally notifying me of his retirement. And I am pleased to announce my intention to nominate William H. Rehnquist. Upon Rehnquist’s confirmation, I intend to nominate Antonin Scalia, currently a judge of the U.S. Court of Appeals, as Justice Rehnquist’s successor.
[Reporter] What impact do you think this will have on the abortion issue? Perhaps the most emotional issue facing this court?
[Reagan] It probably won’t surprise you when I tell you I’m not going to take any questions now.
SOT: [Scalia] Mr. President, good to see you again. [Reagan] Good to see you.
Narrator: When Antonin Scalia first took his seat on the bench in 1986, O'Connor found him to be a breath of fresh air. "Nino Scalia will have a dramatic impact here," she wrote in her journal. "He is brilliant, confident, skillful and charming."
Before long, however, she'd settled on an alternate descriptor: abrasive.
Linda Greenhouse, Legal Journalist: Justice Scalia was a person who thought that much of modern constitutional law was wrong. He had an agenda, and it was to set things right by his view, his view that the only legitimate method of constitutional interpretation was to try to figure out what the original meaning would have been to the 18th century founding fathers.
Narrator: A fulfillment of the Republican party's promise to appoint anti-abortion judges at all levels, Scalia saw the law in black and white. O'Connor was inclined toward the grey.
Once, while discussing an affirmative action case in which a woman bus driver had been promoted over a more qualified man, Scalia launched into a diatribe against hiring practices based on race or sex. O'Connor cut him off midstream: "Why Nino," she deadpanned, "how do you think I got my job?"
Linda Greenhouse, Legal Journalist: Scalia was a justice of rules and not of standards. A rule is you’re either in or you’re out. A standard is, wow, you really have to think about this––and Sandra O’Connor was much more a justice of standards.
Viet Dinh, Former Law Clerk: Justice O’Connor is not a person who says I’m a liberal, therefore, I think X. Or I’m a conservative, therefore, I think Y. And so, people who expect her to hue a line will of course be naturally disappointed, because it’s not her line.
Narrator: Sex discrimination was on the Court's docket as the new term got underway in October 1988, along with cases involving racial preferences, the death penalty, and abortion. O'Connor foresaw a great deal of wrangling with Scalia ahead.
Then came the call from the doctors. The news was not good: a biopsy she'd had less than a week before had found cancer, a tumor in her breast.
To her secretary, O'Connor dismissed it as "an annoyance." But after consulting with several specialists and weighing their contradictory advice––a second biopsy suggested it would be far more than that. The cancer had spread. O'Connor was 58 years old.
"I felt weak," she recalled much later. "I felt very emotional. I was hearing things I didn't want to hear."
Evan Thomas, Author, First: It was a horrible shock. But I think it was even tougher for her because she had this high level of perfection. She felt that she couldn't do things halfway. She had to do things all in, always the best. She was always on.
SOT: [O'Connor] And don't worry, this is not a speech. It's on the program billed as "remarks" and that's all it is.
Scott O'Connor, Eldest Son: She had never had a moment's thought of her own mortality. And all of a sudden, she got hit with a two-by-four in the middle of her career peak as a Supreme Court Justice. How unfair is that? "Why me?" And it wasn't so much feeling sorry for herself, I think it was more the shock of it. "How could this happen? This can't happen. I have all these things I need to do." It was devastating.
Narrator: O'Connor careened between hopelessness and terror. "I was stunned," John wrote in his diary after one particularly tearful episode. "It was the first time I'd seen her lose it emotionally."
Ruth Mcgregor, Former Law Clerk: She was always in control. And suddenly this was a situation where she could make decisions about how to approach it, but a lot of it was just outside her ability to influence.
Linda Hirshman, Writer: She was frightened and depressed. And she called one of her woman friends and confided in her. And she was surprised at the lengths that people went to to comfort her. She was emotionally very self-sufficient.
Narrator: On October 31st, ten days after undergoing a radical mastectomy, O'Connor returned to the bench to hear oral arguments. Chemotherapy was scheduled for Fridays, so the most intense bouts of nausea would coincide with the weekend. And on the Saturday evening after her first treatment, she insisted on going to a dinner dance at the Sulgrave Club.
Evan Thomas, Author, First: Sandra O'Connor's view towards pretty much everything was, "Power through." It was not her nature ever to be a victim.
Ruth Mcgregor, Former Law Clerk: Once she had decided she could do her job as a justice, she didn’t want people to be watching to see whether somehow she couldn’t. And of course she knew they did when she came on to the bench wearing a wig.
SOT: The Honorable Sandra Day O'Connor, who will administer the oath of office to the Vice President-Elect, James Danforth Quayle.
Ruth Mcgregor, Former Law Clerk: She knew everybody was watching to see whether she was okay.
SOT: [O'Connor] that I will support and defend…the Constitution of the United States.
SOT: [O'Connor] The best thing about all of this was that I had a job to go to. I can't tell you how much that meant to me.
Narrator: Years later, speaking publicly about her cancer for the first time, O'Connor would recall the speculation that had swirled around her that fall as she clung to her work, desperate for a sense of normalcy.
SOT: [O'Connor] The worst was my public visibility, frankly. There was constant media coverage. How does she look? When, when is she going to step down and give the president another vacancy on the Court? You know, she looks pale to me. I don't give her six months.
Scott O'Connor, Eldest Son: She wanted to be defined by the job she did on the bench, not by something that just happened to her.
The Middle Way
SOT: Pro life! Pro life! Pro life!
Narrator: They had marked the January anniversary of Roe v. Wade with a demonstration every year since 1974––and their numbers had grown steadily larger.
In 1989, some 60,000 turned out for the march along the National Mall and the rally afterward on the steps of the Supreme Court. Had O'Connor been in her chambers that Sunday, she could have seen them from her window.
SOT: I can feel it. I can hear it. Victory is coming.
Narrator: In a nod to the rising political power of the Christian right, the newly-inaugurated President George H.W. Bush––a one-time supporter of Planned Parenthood––conveyed his solidarity via loudspeaker.
SOT: I think the Supreme Court's decision in Roe vs. Wade was wrong and should be overturned.
Rick Perlstein, Writer: George H.W. Bush is a weather vane for this complicated transformation going on in the Republican Party. And you could see him sticking his figure in the wind, seeing which direction the wind is blowing, and, and deciding that, you know, he has to cast his lot with the right wing of this particular question. And a pro-lifer is born.
SOT: Choose life! Not death! Choose life!
Linda Hirshman, Writer: I always say, Sandra Day O’Connor had reached her sell-by date by the time she got on the Supreme Court of the United States because she represented a Republican party of the libertarian West and of the former support for the Equal Rights Amendment and for abortion rights that was already out of fashion.
Narrator: Justice O'Connor famously avoided the subject of abortion. If asked when life began, she tended to deflect with a joke: "When the kids are out of college and the dog dies."
But the backlash against Roe v. Wade lately had turned violent and O'Connor was steeling herself for what lay ahead.
SOT: On April 26th, the Court will consider a law the Missouri legislature passed three years ago.
SOT: That law says public funds can't be used for abortions or even to advise women about abortion. Missouri's law also declares that life begins at conception.
SOT: With the support of President Bush, Missouri is asking the justices to expressly overturn the 1973 Roe vs. Wade decision and return abortion to local control.
SOT: This is clearly the most serious threat to abortion rights since 1973.
SOT: What is simply unknowable at this time is what the justices will do.
Narrator: The Court had considered abortion several times already during O'Connor's tenure––and had struck down similarly restrictive state laws on two occasions, rulings with which the then-Junior Justice had disagreed.
Arguing in a 1983 dissent that the state had an interest in the fetus throughout pregnancy, O'Connor had signalled her willingness to allow restrictions––so long as they did not impose an "undue burden" on a woman's right to choose.
Linda Hirshman, Writer: The standard of undue burden was cooked up by the Reagan Justice Department in an attack on abortion rights. O’Connor adopts it for her own, and then she just keeps applying it. She would ask in each case, do these restrictions put an undue burden on a woman seeking an abortion?
Linda Hirshman, Writer: And in the first many cases that she voted on she approved of every restriction. She kept finding them not too bad.
Linda Greenhouse, Legal Journalist: People on the right were cheering for her.
SOT: [Willke] We're hopeful and confident.
Linda Greenhouse, Legal Journalist: Until 1989, the next big abortion case.
SOT: [Willke] Everyone one of us should accept the Court's willingness to reexamine that flawed Roe v. Wade decision.
Linda Greenhouse, Legal Journalist: Everybody assumed that O’Connor was also going to be fully for undercutting Roe because of her earlier dissent.
Narrator: The Missouri case, Webster v. Reproductive Health Services, would be heard by a changed Court––with Reagan appointees in seats once occupied by supporters of Roe.
SOT: The newest justices, Scalia and Kennedy, have never voted in an abortion case but are thought to oppose Roe. That leaves Sandra Day O'Connor with the pivotal vote. She's known to favor more state authority to regulate abortions, but she's never said that women don't have a constitutional right to abortion.
Evan Thomas, Author, First: She hated being in the middle of the abortion storm. She knew how loaded it was. And, importantly, she wasn't 100 percent sure of where she stood on all this.
SOT: [chanting] [Man] You have blood on your hands from killing babies. I don't.
Scott O'Connor, Eldest Son: She got a lot of angry mail on that subject.
SOT: [Woman] You want to kill women, that's what you want to do. You want to kill women.
Scott O'Connor, Eldest Son: And she got more than anyone, by far. Ton of pressure.
Narrator: O'Connor was wary of wading into a debate so polarized, and troubled by the unsubtle directive the Bush White House had issued to the Court. For once, the opinion from her chambers was slow to come.
SOT: Ladies and gentlemen, Webster!
Narrator: And when finally it did, she had refused to take a side.
Evan Thomas, Author, First: She upheld many of the restrictions in the Missouri law, but she would not go all the way to overturn Roe.
Melissa Murray, Legal Scholar: She may have personally been skeptical of abortion, but she recognized that people had come to rely on these rights. And she wasn’t willing to sweep them away.
Jason Johnson, Political Scientist: When you say, yes, of course I support abortion. But I will allow Virginia and Alabama and Texas and North Carolina and all these different states constrain access to abortion, then you get to have it both ways. She basically opens the door for people to go back to the drawing board and bring this case back in two or three years with what they think might be stronger evidence.
Narrator: To Scalia, it amounted to an abrogation of the Court's duty––and he excoriated the majority for what he called its "indecisive decision." O'Connor's opinion, he fumed in his own, "cannot be taken seriously."
Linda Greenhouse, Legal Journalist: For one Justice to write an opinion saying something like that about another Justice––some people have said that Scalia’s public treatment of her was so aggravating to her that it helped push her away from the conservative side and notably more toward the middle of the Court. It certainly became visible to the public in that very high profile case.
Narrator: Inevitably, the issue returned to the Court in 1992, with a challenge to a law out of Pennsylvania, the most restrictive yet.
SOT: The Pennsylvania law the Court will consider requires women wanting an abortion to wait 24 hours, undergo counseling...
SOT: ...requiring parental consent for minors, and––most controversial––requiring that the husband be notified before his wife receives an abortion.
Linda Hirshman, Writer: Their intent was to make it impossible for women to get abortions. And the way to do that was to just keep adding restrictions, and seeing whether the old white men and Sandra Day O’Connor on the Supreme Court, would think that it was not too bad to make a woman go over that gauntlet or the next gauntlet.
SOT: [O'Connor] Now, the provision does not require notification to a father who is not the husband, I take it--
[Attorney] That's correct Justice O'Connor.
[O'Connor]--or notice if the woman is unmarried.
[Attorney] It only applies to married women.
[O'Connor]So what's the interest, to try to preserve the marriage?
[Attorney] There are several interests. The interest, of course, in protecting the life of the unborn child.
[O'Connor] Well then, why not require notice to all fathers?
Narrator: Despite O'Connor's obvious reservations at oral argument, Planned Parenthood v. Casey was widely expected to end the federal right to abortion.
Two Bush appointees had joined the Court since the Webster case––Justices Souter and Thomas––and with or without O'Connor, the majority now seemed likely to skew right.
Evan Thomas, Author, First: In conference, in the Court’s secret, private conference, there are five votes to undo Roe v. Wade. It looks like abortion is finished. But it isn't.
Linda Hirshman, Writer: Nobody knows where it came from. People are thinking it was maybe Souter, who went to his friend, Kennedy and said, we don’t want to do this. And they knew that O’Connor would be a third vote for not taking—again, for not taking the extreme, world-altering position.
Narrator: The joint opinion the three cobbled together reversed the expected outcome of the case, shifting the majority to the left.
O'Connor wrote the nuts and bolts––which reaffirmed the right to abortion and simultaneously established "undue burden" as the new standard by which restrictions would be judged.
The only Pennsylvania restriction to be struck down under that standard was the requirement that married women notify their husbands.
Linda Hirshman, Writer: Whatever O’Connor didn’t like was undue. She knew what it was like to be a woman, a particular kind of woman. She could envision traveling, waiting overnight, costing more and more––run that gauntlet––because she was a rich white woman who had a will of iron and could do anything.
SOT: Today, three Reagan-Bush appointees stabbed the pro-life movement in the back.
SOT: Roe v. Wade is dead despite the flimsy stay of execution that the Court issued today and women will not tolerate the loss of those rights.
SOT: What both sides want in this fight over abortion rights is an absolute victory, one that will not come for the anti-abortion movement unless Roe v. Wade is struck down and abortion is outlawed.
Linda Hirshman, Writer: When push came to shove in 1992, Sandra Day O’Connor voted to preserve Roe v. Wade. Was it glue that held the fractious society together? Or was it a Band-Aid on cancer? The question of what was undue was gonna be used as a hammer against abortion rights as soon as possible. On the other hand, women have had some remote right to abortion since the decision in Casey, and that’s not nothing.
Swing Vote
SOT: [Bush] Thank you very much.
Narrator: It was a blow to O'Connor when Bush lost the presidency...
SOT: [Bush] The people have spoken...
Narrator: ... and not simply because she thought Republicans were better at governing.
SOT: [Bush] I just called Governor Clinton over in Little Rock and offered my congratulations...
Narrator: The Bushes were friends––she and Barbara played tennis regularly––and she was sorry to see them leave Washington.
Their absence was still palpable two months later, when it became clear that Bill Clinton, the first Democrat to occupy the White House in more than a decade, was to have the privilege of filling a vacancy on the Supreme Court.
SOT: [Clinton] As all of you know, I received a letter from Justice White, expressing his intention to resign from the Court at the end of this term.
SOT: [O'Connor] When there is a change in the Court, we all feel it very deeply. I remember Justice White telling me that it isn't just a change of a justice, the Court itself changes.
SOT: [Burger] I, Antonin Scalia...
Narrator: O'Connor had welcomed four new colleagues during her dozen years on the bench.
SOT: [Thomas] I, Clarence Thomas...
Narrator: But unlike the previous arrivals, this one was a woman.
SOT: I, Ruth Bader Ginsburg, do solemnly swear...
Linda Hirshman, Writer: O’Connor was delighted, even though Ginsburg was a Democrat.
Viet Dinh, Former Law Clerk: Justice O’Connor was very, very open and sometimes emotional about the fact that it had been very lonely for 12 years. And she welcomed very much Justice Ginsburg joining the court.
Evan Thomas, Author, First: For one thing, the Court had not put in a lady’s room near the Court conference room.
SOT: [Ginsburg] Has the place turned around now that two women are there? Our robing room since the 1993 term has a women's bathroom equal in size to the men's.
Evan Thomas, Author, First: Finally, after 12 years, they built a lady’s room. But more important, it gave her an ally.
SOT: [Ginsburg] Sandra knew what it was like to learn the ropes on one's own. So she told me what I needed to know when I came on board, not in an intimidating dose, but just enough to enable me to navigate safely my first days and weeks.
Evan Thomas, Author, First: Incredibly, Supreme Court advocates would get confused between them. So they had these t-shirts made, "I’m Ruth, not Sandra," and, "I’m Sandra, not Ruth." But it normalized having women on the Supreme Court.
Ruth Mcgregor, Former Law Clerk: She said once that, now instead of being one woman on the Supreme Court, we were just a court of nine justices. It makes all the difference to have the extra woman added. And I think she was just so relieved that a little of that pressure of being the only woman went away.
Narrator: There would be no more comments in the papers about what O'Connor wore out at night; no more columnists calling her the "Supreme Court's Mom;" no more searching essays on her uniquely "feminine" judgment.
Now, there was only the work of the Court––the legal and constitutional questions that term after term shaped the national reality. And increasingly, it was O'Connor who wielded the pivotal vote.
SOT: Sandra Day O'Connor cast the fifth and deciding vote.
Linda Greenhouse, Legal Journalist: There were pretty reliably, in a lot of issues that people cared about, four on one side, four on the other side, and the decision was going to come down to what Justice O’Connor, um, was going to do.
SOT: And Justice O'Connor may cast the deciding vote...
Linda Hirshman, Writer: If you could win O’Connor, then you could win 5-4.
Evan Thomas, Author, First: This gave her immense power.
SOT: In some of the most contentious cases, Sandra Day O'Connor often provided the critical fifth vote.
Linda Hirshman, Writer: She hated being called the swing justice. But that’s exactly what she was. Antonin Scalia had a coherent conservative theory. Ruth Bader Ginsburg had a coherent liberal theory. Since she didn’t have a coherent legal theory, and did this case by case thing, trying to be no broader than the facts in front of her, it was irresistible to try to pull her to your side.
Jason Johnson, Political Scientist: She wanted to make sure that she was a part of the conversation. Rehnquist was only going to be on one part of the conversation. She wanted to be a part of everybody’s conversation because that’s really where you can make the most difference. As long as I am somebody that everybody feels that they can make an argument towards, I can make sure that these issues are brought forth.
Narrator: O'Connor voted with the conservatives to reign in racial preferences in federal contracting, but stopped short of declaring them unconstitutional.
She voted with the liberals to hold public schools liable for student-on-student sexual harassment––then narrowed the decision to cases where the harassment was severe and the school, clearly negligent.
Linda Hirshman, Writer: So she would withhold her vote. And then she would negotiate with whoever it was that had been assigned the opinion. If they were writing an opinion that was too conservative she would say, I’m going to concur and deprive you of your majority. Or worse, I’m going to go with the liberal dissenters.
SOT: This was to have been the Rehnquist Court. Or perhaps the Clarence Thomas Court. Instead, the shots are being called by Sandra Day O'Connor.
Linda Hirshman, Writer: It’s a little weird for a nation of several hundred million people to be governed by one swing vote. But that’s the power of the modern Supreme Court.
Narrator: Term after term, the Court handed down rulings with O'Connor's stamp––rulings that nudged the nation one way or another, but left plenty of room for the roiling social debates to play out on the ground.
Linda Greenhouse, Legal Journalist: It was a transitional period of a lot of changes in society, and the Court managed to kind of skate on top of them in an O’Connor-ist way, kind of bridging differences and settling issues through minimalist decisions, instead of going all the way.
Evan Thomas, Author, First: One of the symbols of the Supreme Court is a turtle because that's the law: It moves incrementally. That was Sandra O'Connor's law.
Scott O'Connor, Eldest Son: This business of moderation she felt was ultimately a better service to the nation in the role of the Supreme Court than trying to come in and swing for the fences every time you're at the plate. She was worried, you know, if the Court made a mistake, how would that reflect on the Court in the future and the nation's confidence in its judiciary?
Narrator: By the 1999–2000 term, which saw the highest percentage of 5-to-4 decisons in a decade and O’Connor in dissent only four times, the press had taken to calling it "The O'Connor Court."
As one journalist observed: "Nineteen years after her appointment as the High Court’s first female Justice, O’Connor has become, in today’s vernacular, 'The Man.'"
Partisan?
SOT: [Brokaw] Good evening, once again the long, drawn out contest for the presidency is on hold tonight, awaiting the judgement of the US Supreme Court, which today had a spirited exchange with lawyers representing Vice President Gore and Texas Governor Bush.
Narrator: Eventually, O'Connor would come to regret the decision. As she put it to a reporter more than a decade after the fact: "Maybe the Court should have said, 'We're not going to take it. Goodbye.'"
SOT: An election night without end.
Narrator: Instead, in the fall of 2000, after nearly two decades on the bench, she found herself confronting a problem for which there was no nuanced solution.
The presidential election had been inconclusive...
SOT: The media called it for Gore, then for Bush, then for neither.
SOT: Gore is leading the popular vote, but neither candidate has secured the magic number of 270 electoral votes.
Narrator: ...and for nearly a month, the nation had been waiting for Florida to break the tie.
SOT: The Sunshine State holds the key to the presidency today for Al Gore. Election workers there are recounting nearly six million votes, and that's because only a few hundred votes separate the candidates in Florida.
Evan Thomas, Author, First: Every voting district had a different standard, there were the famous hanging chads, the votes hadn’t been counted properly. It was a mess. And the Gore forces wanted to have a recount, and the Bush forces wanted to wanted to stop the recount. So there was a legal challenge.
SOT: Hear ye! Hear ye! Hear ye!
SOT: Did the Florida state supreme court go beyond its authority when it ordered a statewide recount of the so-called “under-votes,” ballots at which no choice for president was detected. That’s the legal issue. The political consequence, of course, is what has all of us in suspense tonight. Will the Courts send Bush to the White House or Al Gore?
SOT: Outside the Court, Bush and Gore demonstrators duel, trying to out-yell each other. But inside the court room none of that noise could be heard––just the voices of the intense 90-minute oral argument.
SOT: [O'Connor] Would the starting point be what the Secretary of State decreed for uniformity? Is that the starting point?
Narrator: As the justices probed the practicalities of the recount––and struggled to grasp the standard for counting the disputed ballots––O'Connor's impatience was plain.
SOT: [O'Connor] Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes? I mean, it couldn't be clearer. I mean, why don't we go to that standard?
Oscie Thomas, Collaborator, First: She did not like mess. And there is a clock ticking, a December 12th safe harbor date, which is coming up now pretty fast, and the country was getting increasingly anxious.
Narrator: "We've made our decision," O'Connor told her son the next morning. "And half the country's going to hate me."
SOT: The U.S. Supreme Court effectively handed George W. Bush the presidency last night. In a 5-to-4 ruling, the Court decided not allow any further counting of the disputed votes in Florida. The majority said there was no constitutionally acceptable way to continue the recount because of electoral deadlines.
Evan Thomas, Author, First: All five conservatives voted to stop the recount and in effect elect George Bush, and the four liberals wanted to keep the recount going, which might’ve had the chance of electing Al Gore. It looked like a raw, political power play. However the story is more complicated than that.
Evan Thomas, Author, First: Justice O’Connor was looking down the road here. The Republican Secretary of State had already certified a slate of electors. What happened if Al Gore won a recount? There would be a second slate of electors. If a state has two sets of electors, it goes to Congress. The Senate has one vote and the House has one vote. The House was going to be Republican, the Senate was going to be Democratic—a tie. Under the law, the tie is broken by the governor of the state. His name was Jeb Bush.
SOT: Florida Governor Jeb Bush now says he would sign legislation awarding the state's presidential electors to his brother.
Evan Thomas, Author, First: O’Connor could see it was going to look like a banana republic, that the guy’s brother was going to elect him.
Oscie Thomas, Collaborator, First: She could tell that George Bush was going to be president in the end because of the way the process worked. And that it was better for the country to end it now and not let it drag on into January.
Jason Johnson, Political Scientist: What is so problematic is that the court shouldn’t have been involved. And the fact that years later, Sandra Day O'Connor basically admits, yeah, we probably shouldn’t have gotten involved in that. Why did you get involved? The fact that you have these kinds of doubts, a decade or so later, is not comforting to the majority of Americans that didn’t want George Bush as president.
Narrator: The press was merciless. Friends were worse. As one wrote O'Connor: "I was shocked along with millions of others, by the naked partisan power play executed by a narrow majority of the court…And I was profoundly disappointed that you chose to be a part of this."
SOT: The Court's own four dissenters were especially stinging in their criticism, Justice Breyer saying it could undermine public confidence in the Court.
Narrator: O'Connor did her best to move on. The family holiday card that season led with a wish: "May your New Year be free of hanging chads."
But Bush v. Gore would not be so easily shrugged off.
SOT: [ROSE] This would be Bush v. Gore. Did the Court serve itself well in that decision?
[O'Connor] I'm not the one to ask that.
[ROSE] I'm smiling because I know you don't like to talk about it.
[O'Connor] I don't like to talk about cases generally.
[ROSE] Yeah, but that one was so controversial and so-- got so much attention and some say that the court determined the election. They do say that.
[O'Connor] Yes, some say that. Right.
Narrator: O'Connor had planned to retire in 2000, to spend time with John, her partner on the dance floor, on the tennis court, in life––John, who had put her career ahead of his own.
He'd begun to forget things sometime in 1996: he lost the thread in the middle of the funny yarns he once so famously spun at parties, lost his wallet, lost his way. The Alzheimer's diagnosis had come just months before the election––and the clock was ticking now on the time they had left.
But having just voted to install a Republican in the White House, O'Connor thought it unseemly to follow through. There would be no more talk of retirement.
Linda Hirshman, Writer: She was, at the end of the day, a Republican. She came from the Republican political establishment. So I think that her every instinct was to hope for the Republican party to win the elections and to pick the judges and to govern. And I think she did not realize how much the Party had changed.
Act Three
Defender of the Faith
Narrator: Five months after Bush took office, the New York Times magazine published a profile of Justice O'Connor––perhaps the least flattering that had ever appeared in print.
Accusing her of "judicial imperiousness," the piece railed against the justice's famously narrow opinions––which, it was noted, "have the effect of preserving her ability to change her mind in future cases."
O'Connor was displeased––in part, because she thought the cover image made her look like George Washington. Mainly, though, it was that she disagreed: where her critic had perceived a flaw, the justice, ever confident of the democratic process, instead saw virtue.
SOT: We have a provision in the Eighth Amendment dealing with cruel and unusual punishment and saying that's unconstitutional. Now our ideas of cruel and unusual punishment when the Constitution was written may have been included people––putting people in the stocks so their necks and their hands were bound and you leave them out there in the hot sun for God knows how long, or burning them at the stake. We've evolved.
Narrator: Over the previous decade, as new appointments had moved the Court to the right, O'Connor had drifted incrementally to the left. But in the wake of Bush v. Gore––and the terrorist attacks of 9/11––the shift would accelerate.
SOT: [Bush] Either you're with us or you're with the terrorists.
SOT: This is a major new policy the president announced last night, a significant expansion in the scope of the war on terrorism.
SOT: Detainees will not be treated as prisoners of war. They're illegal combatants.
SOT: President Bush said the Geneva Conventions on prisoners of war would not apply.
SOT: [Bush} Al Quaeda is not a known military.
Jason Johnson, Political Scientist: George Bush ran as this guy who was going to be a compassionate conservative. But he got in the office and he legislated like a far right president. And that’s the kind of thing that Sandra Day O'Connor didn’t like.
Linda Greenhouse, Legal Journalist: She didn’t like the rhetoric that was coming out of the Republican party. It was really counter to her way of being in the world.
Ruth Mcgregor, Former Law Clerk: She didn’t like when she saw things veering away from the ideal of democracy and the way the country should run.
Narrator: Dismayed by what she saw as executive overreach, alarmed by the threat to civil liberties and the erosion of basic civility, O'Connor demonstrated her growing distance from the Republican agenda by casting her crucial vote against it.
At times, she even reversed long-held positions––joining with the liberals to strike down a death penalty law that allowed the execution of the mentally disabled, and to declare criminal sodomy laws unconstitutional.
SOT: The law of the land will never be the same. Homosexual conduct is no longer a crime.
Narrator: And in 2003, after decades of mostly voting against policies based on race, she made the majority that saved affirmative action in higher education.
Linda Greenhouse, Legal Journalist: It was a case being pushed on the Court by the Bush administration, about admissions to the University of Michigan law school.
SOT: [Bush] The Michigan policies amount to a quota system that unfairly rewards or penalizes perspective students based solely on their race.
Linda Greenhouse, Legal Journalist: Certainly, the O’Connor who first came on to the court would never have been expected to write that opinion.
SOT [SOC_2440]: A divided Supreme Court handed down its long-awaited rulings on affirmative action. In essence, the justices gave the nation's colleges and universities the right to select students at least in part on race.
Narrator: "Effective participation by members of all racial and ethnic groups in the civil life of our nation," O'Connor had written, "is essential if the dream of one nation, indivisible, is to be realized."
To this, as so often with controversial cases, the Justice had added a limiting caveat:
SOT: [O'Connor] We expect that 25 years from now, the use of racial preferences will no longer be necessary[.]
Linda Greenhouse, Legal Journalist: Arbitrary? Of course. But it was a way of sending a message, saying, you know, we’re doing something we’re not totally comfortable with, but we think we’re doing it for the right reason. We expect the right result. It’s not going to be overnight, but we don’t want it to be forever, 25 years.
Viet Dinh, Former Law Clerk: She recognizes the incredible racial injustice that defines our country’s history. But she rejects the idea that we are a society permanently divided by race.
Viet Dinh, Former Law Clerk: She could have picked fifty years. She could have picked five years. That’s her sense of optimism in the continuing, gradual social progress that our society makes, that she believes in.
Narrator: If O'Connor's open-mindedness read to some as inconsistency, it did nothing to diminish speculation that she might soon sit at the Court's helm.
SOT: [Rose]: Now think about this for me for a second.
[O'Connor] Alright.
[Rose] I want you to just think about this. Fifty years ago, you can't get them to interview you. And now you would be, if the president decided--if Rehnquist decides to retire first...Wouldn't it be great, this sort of continuum from this brilliant graduate of Stanford Law School who couldn't get a job in a law firm, who all of a sudden--
[O'Connor] No, look-- no.
[Rose] All of a sudden--
[O'Connor] No. No.
[Rose] --is the first woman Chief Justice?
[O'Connor] No, see, there's something--
[Rose] Having been the first woman justice and the first woman chief justice?
[O'Connor] No, there's something the media would think was a neat arrangement, but in fact is not very sensible. I am old.
Bellweather
Narrator: From early 2003 on, while O'Connor was poring over briefs and writing memos, John was there in her chambers, his Alzheimer's so advanced that he was no longer able to look after himself. Stoic as ever, Sandra had taken charge of his care.
Scott O'Connor, Eldest Son: Mom wanted to do it all herself. You know, didn't want the help because she felt it was her duty. You know, Dad had been so supportive of her all those years, it was her duty to love him and take care of him no matter what.
Ruth Mcgregor, Former Law Clerk: She tried to find ways to deal with it. You know, taking him to the office with her, finding people to sort of watch over him when they were at political events or public events where she needed to be doing something. And eventually, that just became impossible.
Narrator: In 2005, as President Bush settled in to his second term, O'Connor seized the moment.
SOT: [Bush] A short time ago, I had a warm conversation with Justice Sandra Day O'Connor who has decided to retire from the Supreme Court of the United States. And she and John and their family have our respect and good wishes.
Linda Greenhouse, Legal Journalist: People were shocked. The one that everybody expected was going to retire was Chief Justice Rehnquist, who was desperately sick with a type of thyroid cancer. So the country was really in a state of shock. And also, the reason she gave was that her husband needed her care. Now, male justices have been known to have wives who get very sick, but they don’t leave to take care of their wives. This was something new.
SOT: Now the president must choose someone to succeed the moderate Sandra Day O'Connor, often the deciding swing vote, as the Court prepares to tackle such divisive issues as access to abortion and physician-assisted suicide.
SOT: Viewing the president's victory as an endorsement of their social agenda, conservative religious leader say they're putting a list of demands on the table and they expect this White House to respond.
Linda Greenhouse, Legal Journalist: It did seem that the opportunity for shifting the Court to the right had unexpectedly presented itself. I mean, had the person who had announced the retirement first been Chief Justice Rehnquist, it was going to be hard to run to the right of William Rehnquist. But it was going to be easy to run to the right of Sandra O’Connor.
SOT: And today, final tributes to the late William Rehnquist at the Supreme Court where he served...
Linda Greenhouse, Legal Journalist: What happened was Chief Justice Rehnquist then died less than two months later. So the Court was faced with two vacancies, but it was hers that was really the more significant vacancy.
Narrator: O'Connor was meant to have been replaced by John Roberts, a conservative in the mode of Justices Thomas and Scalia who satisfied Bush's base without completely antagonizing Senate Democrats.
Instead, Roberts was given Rehnquist's seat, and O'Connor obligingly agreed to stay on–-delaying her plans an additional four months, until an acceptable nominee could be found.
SOT: The new Supreme Court Justice Samuel Alito. The new Jersey native was sworn in by Chief Justice John Roberts.
SOT: He comes to the Supreme Court with the lowest number of votes in the Senate since Justice Clarence Thomas.
SOT: [Durbin] A chill wind blows, a chill wind which will snuff out the dying light of Sandra Day O'Connor's Supreme Court legacy.
Linda Greenhouse, Legal Journalist: Justice O'Connor, in her role on the Court, stood astride a widening gulf that was polarizing America and threatening to polarize the Court.
SOT: [Kerry] What could possibly be more important than an entire shift in the direction of the Supreme Court of the United States?
Linda Greenhouse, Legal Journalist: And indeed, when she left and was replaced by Samuel Alito, who’s a conservative gut fighter, the Court did change.
Narrator: With O'Connor gone, the Court's new conservative majority swiftly rewrote the rules of American life––sidestepping precedent as they relaxed restrictions on campaign finance, upheld a ban on certain late-term abortions, and further curtailed the use of racial preferences to promote diversity in education.
Linda Greenhouse, Legal Journalist: Justice O'Connor exercised her power inside the Court pretty wisely. But she wasn’t in a position to build structures that would protect the kind of centrist and minimalist approach that she took to so many cases. She noted this quite ruefully herself within a few years after she left the Court, that things were being, as she put it, dismantled.
Jason Johnson, Political Scientist: The way that you solve that is by making sure that your, your rulings and your writings are air tight. You don’t leave ambiguity. And a lot of her rulings were open to somebody else having a brand new idea and twisting them one way or another.
Melissa Murray, Legal Scholar: If you’re making these sort of incremental, piecemeal moves, all you need is someone who’s willing to take a big leap to just sweep you off the board. And that’s what happens.
Narrator: A mere five years after O'Connor's departure, her critics already were mourning the centrist court she had defined––and what one called her "knack for expressing the views of the moderate majority[.]"
"...America would be a different place today if [Justice O'Connor] were still on the...Court," the elegy ran. "For her impressive but now embattled legacy, I miss her."
Linda Hirshman, Writer: It’s a little easier to see the value in incremental change when you think the arc of history is bending toward justice. Sandra Day O’Connor thought the arc of history was bending toward justice. It had in her own lifetime. If you look at her life, going from being unable to get a job as a lawyer to being on the Supreme Court of the United States, that’s a pretty great arc. She did not see that the arc had taken a detour.
Epilogue
Narrator: O'Connor often said that once she made a decision, she did not look back; but stepping down from the Court haunted her. It didn't help that she'd done so to care for John, who by 2007 no longer even recognized her.
Effectively alone after more than a half-century of partnership, O'Connor was left to contemplate her future. "I've got five years where I'll still be relevant," she told friends.
With the fractious politics of the recent past uppermost in her mind, she decided to spend those years promoting civics education––
SOT: [Stewart]: Justice Sandra Day O'Connor
Narrator: ––a subject that by 2009 had ceased to be a requirement in more than half of the states.
SOT: [O'Connor] Only a third of Americans can even name the three branches of government, much less say what they do. How do you like that?
[Stewart] That's not good.
[O'Connor] No. That's what I thought.
[Stewart] Only a third can name the three branches? I thought you were going to say only a third could name the Supreme Court Justices, but literally can't name the three branches of government? Can they name, let's say, an American Idol judge?
[O'Connor] Yes, 75 percent of them can name at least one American Idol judge.
[Stewart] Is that true?
[O'Connor]: Yeah, that's true.
SOT: [Rose] Help us understand how you might have changed while you've been sitting on the Court?
[O'Connor] Well, I hope I've learned a few things.
Narrator: For years, O'Connor had carried around a copy of the Constitution. She pulled it out during interviews so often, it began to seem like a prop.
SOT: [O'Connor] Well, here it is.
Narrator: But she had genuine faith in those thirty-two pages––in the government that rose from them and its ability to withstand the challenges that would come, inevitably, with the passage of time.
The key was to keep the conversation going––and as she liked to say, to learn "to disagree agreeably."
Evan Thomas, Author, First: Justice O'Connor believed all those good things about the balance of power and the Bill of Rights and the separation of powers. The Constitution was a living document to her. But on a much more profound level, she believed in the unwritten laws of democracy, that you have to be respectful of the other side and you have to work out problems with people you don’t necessarily agree with. She lived that, she preached it, she embodied it.
SOT: [Senator] How do you want to be remembered in history?
[O'Connor] The tombstone question. What do I want on the tombstone? I hope it might say here lies a good judge, that I would be remembered for having given fair and full consideration to the issues that were raised and to resolving things on an even-handed basis and with due respect and regard for the Constitution of this country.
Linda Hirshman, Writer: She knew she could do it, and that it was unjust for her not to get a chance to use her capacities, and that it wasn’t just about her. She was faithful to that, and it made a big difference. As she said, she was the first, but she was not the last.
