I was saddened to hear of the loss of retired Justice Sandra Day O’Connor.
I was a first year Afro-Filipino law student when she was appointed to the U.S. Supreme Court. It’s quite a vivid memory, because so many people were talking about how the appointment of the first woman would change the Supreme Court — and change it, she did. It might seem startling now, but at that time, there were still people around who thought women should not even enter the legal profession, let alone sit on the highest court in the land.
Another reason her appointment is etched in my memory is that the same day it was announced, I overheard a conversation between two people hidden behind the stacks of law books in the law library: “If all these women were not trying to be lawyers, you would be able to find a good legal secretary.”
That shocking statement brought to mind the cynical backlash that often accompanies many such historic firsts. There was Maryland-born Thurgood Marshall’s 1967 Supreme Court appointment by President Lyndon Johnson, making him the first African American justice. Many, without justification, questioned his fitness for the position despite being one of the most accomplished lawyers of the 20th century.
Let’s not forget that, while the late Chief Justice William Rehnquist was working as a law clerk on the Supreme Court, his classmate, Justice O’Connor, who also graduated in the top 10% of the class at Stanford University’s law school, would not be considered by any top law firm because of her gender.
My recollections of Justice O’Connor are quite vivid. I participated as counsel in five Supreme Court cases before her as an appellate public defender. Although she voted for my side on only two of those occasions, she was always a courteous and thoughtful jurist. When she sat on the court, she would ask the most probing and meaningful questions of any justice in my memory. Her questions indicated that she had a deep understanding of the importance of the cases before her. Rarely did her questions indicate any leanings for the ultimate opinion she would author or join.
I once had occasion to meet her at a Maryland State Bar Association event where she was the featured speaker. She was gracious and cordial. She took time to speak with all who wanted to meet her.
Her legacy on the court during her long career would serve to highlight the role of the swing vote. That phrase has come to be associated with a court drifting to the right or the left and then being defined by a more moderate voice deciding key cases. Famously, she became part of a three-justice plurality opinion in Planned Parenthood v. Casey, an abortion rights case that extended the now-overruled decision in Roe v. Wade well into the 21st century.
Her opinion in an affirmative action case called for patience, suggesting that perhaps in the future we would no longer need the corrective measure for those who had been denied access to the basic tools of success. She optimistically suggested, in Grutter v. Bollinger in 2003, that perhaps in another quarter century we would no longer need such tools. The 25 years didn’t get a chance to run its course before the Supreme Court reversed prior affirmative-action precedent earlier this year in Students for Fair Admissions v. Harvard. Whether one agrees with her substantive views on such matters, it is certain that she played an important stabilizing role on a court that desperately needed it for the years that she served.
You could not necessarily predict her position in the most controversial matters. The content of her judicial character emphasized civility. She did not engage in partisan rancor in writing or from the bench. Although her traditional leanings were generally conservative, her rulings indicated an understanding that when the court rules on controversial constitutional matters, it mortgages a part of its credibility. When disagreeing with her jurisprudence, I can still admire her manner of executing the office of associate justice. Her legal activities outside the court were spent working with the national Inns of Court program that promotes better conduct among members of the legal profession.
I recall asking her, somewhat in jest, during our brief conversation at the Bar Association event, how she could ask such focused questions yet rule against my position in a case I had lost before the court. I certainly did not expect she would answer me on that matter. She simply autographed the copy of her biography and remarked, “Counselor, it is nice to see you again.”
If I had another moment, I would have told her that her breaking the glass ceiling at the Supreme Court remained an important moment for me. It is important that equal justice under law means that the law and its representatives upholding it should look like the people whose cases they decide. I did not think in 1981 that the Supreme Court of the United States would have four female justices in 2023.
Today, most of the students in the law school where I teach are women. I am certain that the profession is better because of it. The changes over my four decades in the law establishes for me that having more women in the law has made our society more thoughtful and humane on many matters. This is an enduring part of the O’Connor legacy.
José Felipé Anderson is the Dean Joseph Curtis Professor of Law at the University of Baltimore School of Law.