“Gosh, I step away for a couple of years and there’s no telling what’s going to happen,” Supreme Court Justice Sandra Day O’Connor joked recently in a speech at Georgetown University. Following Tuesday’s decision to strike down bans on corporate spending in elections, it seems that truer words have never been spoken.
Last Sunday’s Politics Daily online show, Woman UP, discussed O’Connor’s palpable absence on the Court, a feminist issue in two senses. First, without O’Connor’s the Court has made several 5-4 decisions with remarkable implications for women’s rights in America. Further, O’Connor’s early retirement to care for her ailing husband sparks a familiar dialogue on women as caretakers, often at the expense of their careers. The Woman UP panel, consisting of Jill Lawrence, Patricia Murphy, Emily Miller, and Bonnie Erbé, made evident that SCOTUS would have very different dynamic– and certainly a better one– had O’Connor not been made to retire.
The very first woman on the Supreme Court, O’Connor was a law school graduate who’d been offered secretarial jobs. But as a Reagan nominee who Grew up on a Cattle Ranch in the American Southwest, O’Connor was often criticized for never quite fitting the image of a modern feminist. Her husband was known to have spent his days in her chambers while she worked, and O’Connor herself notably delayed her career until her three sons were in school. On her clerks’ door she left a Xerox of her hand with a note that read, “For a pat on the back, lean here.”
But O’Connor was a justice who, after listening to colleague Antonin Scalia constantly rail against affirmative action, responded, “How do you think I got my job?” A pioneer and most often the swing vote, she helped to protect several key policy issues for women’s rights. Though O’Connor allowed certain limits to be placed on access to abortion, she supported the fundamental right to abortion protected by the Due Process Clause of the Fourteenth Amendment. In Planned Parenthood v. Casey, she used a test she had originally developed in City of Akron v. Akron Center for Reproductive Health to limit the holding of Roe v. Wade. Though the decision limited the scope of its protections, Casey upheld Roe; writing the plurality opinion for the Court, O’Connor famously declared, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
O’Connor’s decision to retire in 2006 inevitably disappointed some.
Some criticized her decision to step-down because of her husband’s health as anti-feminist. Others lamented the loss of the crucial, protecting fifth vote. In 2007, O’Connor told Newsweek that she had did not intend for her career on the high court to end as it did, noting that she probably would have worked until she died or became incapacitated, like most (male) justices. “Most of them get ill and are really in bad shape, which I would’ve done at the end of the day myself, I suppose, except my husband was ill and I needed to take action there,” she said.
While, I certainly wish she had stuck it out, O’Connor’s resignation and heavily weighed absence are a reminder that even for the women of country’s nine elite, life/work balance is an elusive concept. As the Woman UP panel contends (and about which they argue whenever defensive and ignorant-seeming Emily Miller speaks up), is that no male judge has ever been forced to early retirement because of his wife or family. Indeed, it seems those “family issues” that force so many male politicians into resignation are really, well, just their own stupidity in having extramarital affairs.
Though we can’t say for sure that women would have been absolutely protected if O’Connor had kept her seat, Jill Lawrence outlines four contentious 5-4 decisions from 2007 alone that likely would have changed with O’Connor’s vote. Among them are the Lily Ledbetter decision and the Gonzales partial-birth abortion ban.
O’Connor has been quite vocal about last week’s 5-4 decision on Citizens United v. Federal Election Commission, which overturns federal restrictions on corporate campaign contributions. She says the ruling essentially reverses the 2003 opinion she helped write and threatens the independence of state courts. She told CNN, “It has the effect of turning judges into these politically elected figures in arms races, if you will, by people with the means to support them.”
Even though O’Connor refused to identify herself as a feminist, her decisions and beliefs suggested a jurisprudence we certainly miss. O’Connor, who will be 80 in March, was, and is, at the top of her game- and as Jill concluded her piece, “that makes it all the more painful that she’s on the sidelines.”