By Barbara Smythe
Sandra Day O'Connor poses with
OSB member Katherine O'Neil
during an ABA event.
During her 1981 confirmation hearings, Supreme Court Justice Sandra Day O’Connor was asked how she would like her epitaph to read. "Ah," she said. "The tombstone question. I hope it says, ‘Here lies a good judge.’"
That epitaph is probably still a while off, but following the announcement last summer of her impending retirement, Justice O’Connor’s friends, colleagues and sometime supplicants within the Oregon legal community reflected on her historic career, offering their own summations of the life and career of the Court’s first female justice.
Neither Doris Carlson nor her late husband, Portland attorney Clifford Carlson, ever appeared before Justice O’Connor when she sat on the bench at the Supreme Court. They knew another side of O’Connor. Mrs. Carlson met O’Connor when both were "brand new freshmen" at Stanford University.
"She was very cute," says Carlson. "She had this brown, curly hair. She was popular with both girls and boys. She was young — only 16 — and kind of naïve. You sort of felt like maybe she needed help finding her way around. Of course, that lasted only until first quarter grades came out and we realized she was brilliant."
Over a half-century later, Carlson and O’Connor are fast friends. Carlson, who describes herself as "just awed by her capability," describes a trip some of O’Connor’s college friends took to visit the justice a couple of years ago. "She invited a group of five of us from college back to Washington, D.C., for a visit. She worked at the Court all day while the rest of us were out sightseeing and doing other things. Then she cooked dinner for all of us by herself!"
According to Carlson, O’Connor is very athletic, even leading exercise classes at the Court. "She loves fly-fishing, golfing, whitewater rafting," says Carlson, who has accompanied O’Connor on several rafting trips on Oregon rivers. "One day on the McKenzie, it was absolutely pouring and freezing cold," Carlson recalls. "She was the one saying that, oh, well, at least we’d always remember that day."
When it comes to her role as a judge and history-making figure, says Carlson, O’Connor carries a sense of responsibility to the public. "She’s very warm and really cares about the public. She feels a responsibility to give speeches and appear in public," says Carlson. Like other judges, O’Connor refuses honoraria; she has also donated the royalties from the sale of her books to charity. Carlson emphasizes that O’Connor treats everyone – from dignitaries to elevator operators — with courtesy and respect.
In her memoir, The Majesty of the Law, O’Connor jokes that some people, when informed that Justice O’Connor is present, rush over to shake her husband’s hand and tell him how proud they are to meet a Supreme Court justice. Until recently, says Carlson, O’Connor was able to travel unrecognized in most parts of the country. That changed when she announced her retirement, and the nation became intensely interested in her and her prospective replacement on the Court. "A couple of months ago, we were down at the Oregon coast," says Carlson, "and a woman recognized her. The woman told us she was from Kansas and was on vacation with her daughter." Sportingly, O’Connor posed for a snapshot with the tourists.
As has been reported widely, O’Connor has stepped down from the Court to spend more time with her husband, attorney John J. O’Connor, who suffers from Alzheimer’s disease. "She says this is what she has to do now," says Carlson. O’Connor’s mother also became "forgetful" in her later years.
O’Connor has other plans for her retirement as well, according to Carlson. "She said last month that she wants to try to do something about the prestige of the judiciary. She dislikes the way some members of Congress talk about judges. Of the three parts of government, she feels judges are criticized most unfairly."
What will she miss most about being a Supreme Court Justice?
"Her clerks," Carlson says without hesitation. "She feels very close to her clerks. They’re almost a family. I think one of the hardest things for her about announcing her retirement was telling her clerks."
Unlike Carlson, Ninth Circuit Court of Appeals Judge Diarmiud O’Scannlain has many years’ experience with the strictly-business side of O’Connor’s character.
"She’s a judge first," says O’Scannlain. O’Connor was circuit justice for the Ninth Circuit and has developed close working relationships with many Ninth Circuit judges. O’Scannlain, whose name has appeared on sundry speculative "short lists" over the years, and O’Connor have cooperated on a number of issues, including the potential realignment of the Ninth Circuit. O’Connor’s appointment was, of course, particularly news-making because she was the first woman on the High Court. However, says O’Scannlain, O’Connor’s primary interest has always been in applying the law correctly and evaluating cases fairly. "She was delighted to be able to be the first woman on the Court, but I’ve never really felt it really made much difference," says O’Scannlain.
O’Connor, says O’Scannlain, loves the West and has visited Oregon many times, speaking at the Oregon State Bar convention and the dedications of new buildings at the University of Oregon and Willamette University law schools, as well as visiting the Pioneer Courthouse in Portland.
Cory Streisinger, director of the Department of Consumer and Business Services for the state of Oregon, interviewed with O’Connor before accepting a position as a law clerk to Justice Harry Blackmun for the October 1982 Supreme Court term. "At the Court, it did make a difference," says Streisinger, that O’Connor had broken the gender barrier to become the first female justice. "For example, there was a long tradition of justices and their clerks playing pick-up basketball games in the gym on the top floor of the Supreme Court building. They call it the highest ‘court’ in the land." Unsurprisingly, says Streisinger, few of the female law clerks at the Court participated in these games, which she says were primarily "a guy thing." When O’Connor joined the Court, Streisinger says she found another use for the facility: "She started a morning exercise class for women. Unfortunately, I wasn’t able to participate, because Justice Blackmun always had an early breakfast with his clerks." The justice’s morning exercise class continued for the entire length of her tenure. O’Connor also brought about the end of the Court’s tradition of addressing female lawyers as "Mrs." or "Miss," replacing it with the more professional "Ms.," and, of course, justices are no longer addressed as "Mr. Justice," but simply as "Justice."
Beyond her job interview and later involvement in a round-robin program where participating justices’ clerks take other (participating) justices out to lunch, Streisinger didn’t have a lot of contact with O’Connor. However, several years later, when O’Connor addressed the Oregon State Bar convention, Streisinger was surprised when the justice recognized her. "It was one of those situations where someone was coming up to her every five seconds to shake her hand, and I didn’t think she’d remember me. But when she saw me, she immediately said, ‘Cory, how nice to see you,’ and asked me whether I had kept in touch with Justice Blackmun."
Like Streisinger, Oregon Supreme Court Justice Rives Kistler met O’Connor when he clerked at Supreme Court. While at the Court, he clerked for Lewis Powell, viewed by some as O’Connor’s mentor on the Court. "My impression was that she and Justice Powell thought a great deal of Justice John Marshall Harlan," says Kistler. Harlan was a conservative federalist who was known for his ability to maintain close friendships with his philosophical opponents on the Warren Court. "She saw Justice Harlan as a person who did a case-by-case analysis and balanced competing interests," says Kistler. "O’Connor continued that tradition. I thought of her as a very fair, down-to-earth person."
While Kistler clerked at the Court, he also participated in the "take-a-justice-to-lunch" program. "I remember we went to a restaurant where the waiters were all wearing shorts, and we were embarrassed that we had chosen such an undignified place to take Justice O’Connor," said Kistler. The lunch was long enough ago that he doesn’t remember much of the conversation, except that she talked about how "she missed Arizona, with its fresh clean air."
When Ninth Circuit Court of Appeals Judge Susan Graber visited Washington, D.C., O’Connor gave her a personal tour of the Supreme Court, including, Graber said, the justices’ dining room, where portraits of William Marbury and James Madison square off on opposing walls. "She’s a person of humor and candor," says Graber. "She’s a very congenial, normal kind of person."
Portland attorney Katherine O’Neil, Oregon’s delegate to the American Bar Association, met O’Connor through her work as chair of the Lawyers Representatives to the Ninth Circuit Judicial Conference.
"In her speeches to the Ninth Circuit Judicial Conferences, she was very open-minded and obviously very intelligent," recalls O’Neil. She always looked for a constructive solution to an issue. She’s a very pragmatic person, which you’d expect from someone who grew up on a working ranch. She’s very approachable and will talk very respectfully to any attorney who approaches her."
"She has a very nice smile and a measured way of speaking. She also likes to dance. I remember that she and her husband did a very lively swing number out at Judge Leavy’s hops farm one summer during a Ninth Circuit picnic. He’d brought a live band out for the gathering. The O’Connors were one of the few couples who took advantage of the fine music."
O’Neil also discovered that she and O’Connor share a common interest in supporting women in the bar and on the bench. O’Connor, who founded the National Association of Women Judges, and who devoted several chapters of her autobiography, The Majesty of the Law, to the history of women’s rights, "…always has time to help another woman lawyer or judge," says O’Neil.
While O’Connor has earned a reputation as a moderate who writes narrow, fact-specific opinions, she has emerged as an influential voice in some areas of jurisprudence. Possibly chief among these is the church-state field, where she has helped to carve a narrow and winding, yet relatively well-marked road between the Free Exercise Cause and the Establishment Clause.
Willamette College of Law Professor Steve Green, who served for nine years as general counsel for Americans United for Separation of Church and State, has argued before the Court numerous times. "When it came to establishment, it was more or less the O’Connor/Kennedy Court," says Green. "She was crucial in the Ten Commandments Cases. In Zelman v. Harris-Simmons (which challenged the constitutionality of public school vouchers being used to fund attendance at parochial schools), we knew that she was the one we had to win. At times, we focused our arguments almost solely on her."
"She was a moderating voice on the court and was very hesitant to expand the law in either direction," says Green. "She’s been a swing vote on vouchers, on school prayer, on free exercise. Her being gone will have an effect on church-state and on First Amendment law generally."
Arguing before O’Connor, says Green, is an experience marked by an exceptional degree of civility. "She’s such a pleasant person, and a kind, generous person. Even from the bench, she would say ‘Excuse me, Counsel’ before interrupting to ask a question."
Further, says Green, O’Connor takes pains to avoid prejudging cases. "She always had this look on her face like she was taking each case individually. More than any other justice I ever saw, she seemed to look at each case with an open mind. You did not feel you had to dissuade her (from a position taken prior to oral argument based on pleadings)."
As the intense interest in divining who would replace her on the Court her attested, O’Connor is widely viewed as the author of a pragmatic middle way in the field of reproductive rights law as well. She has rarely been silent in cases testing the limits of Roe v. Wade, writing majority opinions as well as dissents and concurrences, advocating for her "undue burden" test, which the Supreme Court adopted in Planned Parenthood v. Casey, narrowing the "strict scrutiny" standard applied in Roe.
Portland appellate specialist Frank Hunsaker has had the opportunity to observe O’Connor from what is arguably the most relevant vantage point for viewing a Supreme Court justice: the counsel table. "In the Supreme Court, the counsel table is very close to the justices," Hunsaker recalls his experience arguing a case involving a federal environmental statute before the Court. "Justice O’Connor asked a lot of questions. It was a great experience." O’Connor eventually wrote the opinion for the majority, deciding the case in favor of Hunsaker’s client.
Portland attorney Vivian Solomon met O’Connor during a national conference of the Latvian Bar Association of North America, of which Solomon was president. "We were meeting in Washington, D.C., and one of our members was clerking for Justice O’Connor," says Solomon. The clerk arranged a tour of the Supreme Court, and O’Connor met briefly with the group. "I was sort of in awe of being in the presence of a Supreme Court justice," remembers Solomon, "but she was very gracious. I was impressed that she took the time to meet with every day lawyers. She struck me as very human."
Like so many other good things, a "good judge" is largely in the eye of the beholder. And, of course, it’s far too early to be writing Justice O’Connor’s epitaph. However, based on the viewpoints of so many very different judges, lawyers and others in the Oregon legal community, our first female justice might very well one day get her wish.
ABOUT THE AUTHOR
Barbara Smythe is contract attorney in Portland.
© 2006 Barbara Smythe