Supreme Court Report

O’Connor, J., Concurring

BY ALEXANDER WOHL
Alexander Wohl is a freelance writer in Washington, D.C.

If Justice Oliver Wendell Holmes Jr. was “the great dissenter,” does that make Justice Sandra Day O’Connor “the great concurrer”?

In delicate areas of the law it has become almost commonplace for 5-4 rulings by the Court’s conservative bloc to be embroidered-and often limited-by an O’Connor concurrence. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court’s ideological spectrum. In this sense she has assumed or at least draped over one shoulder the moderate mantle of retired Justice Lewis F. Powell Jr.

Steven Katlett, who clerked for O’Connor two years ago and is now an associate with Jones, Day, Reavis & Pogue in Columbus, Ohio, thinks that “she appreciates [Powell’s] views and for this reason, as well as her general philosophy, she won’t sign on to wholesale revamping of Warren and Burger Court decisions.”

Another former O’Connor clerk states that O’Connor “is concerned about judicial activism, not in a political sense, but in the real sense that the Court should not jump into an issue just because it is controversial, but should try to be somewhat stable and consistent until it is really confronted with a situation where it has to make a change.”

In Pembauer v. City of Cincinnati (475 U.S. 469 [1986]), for

Rethinking Feminist Judging

MICHAEL E. SOLIMINE* SUSAN E. WHEATLEY**

INTRODUCTION

For nearly two centuries no woman served on the United States Supreme Court and very few served on either the lower federal courts or state courts. Today, Sandra Day O’Connor and Ruth Bader Ginsburg are members of the

U.S. Supreme Court, and burgeoning numbers of female judges have joined them on other federal and state courts.1 Contributing to this change, the Clinton administration is appointing unprecedented numbers of women to the lower federal courts.2

The increasing number of female judges, not coincidentally, has been accompanied by questions about whether female judges and female judging are distinctive in some way, and by calls for further increasing the number of female judges. Some writers assert that female judges approach cases and make decisions in ways that their male colleagues are unable or unwilling to do. According to these writers, most if not all female judges engage in contextual analysis, consider a broad range of factors, and tie their decisions less to arbitrary rules than to flexible standards.3 Drawing on these empirical

Copyright © 1995 by Michael E. Solimine & Susan E. Wheatley. All Rights Reserved.

* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. J.D., 1981, Northwestern University; B.A., 1978, Wright State University.

** Partner, Taft, Stettinius & Hollister, Cincinnati, Ohio. J.D., 1986, Northwestern University; B.A., 1982, Yale University.

Ruth V. McGregor*

When Justice Sandra Day O’Connor joined the Supreme Court of the United States in 1981, the Court gained much more than a Justice who, during the next quarter century, would play a major role in de termining the direction of the Court’s jurisprudence. It gained the services of a woman who would use her influence, coupled with her considerable intellect and energy, to improve justice systems here and internationally. She became personally and deeply involved in efforts to improve the status of women in the legal profession, to spread the rule of law, and to increase professionalism among lawyers. Much of her success in each area depended upon her willingness to sacrifice anonymity and to become more accessible and visible than most past Justices had been. Any analysis of the impact of Justice O’Connor’s tenure on the Court is incomplete if it does not consider her impact outside the courtroom.

The effect of Justice O’Connor’s appointment upon the status of women in the legal profession cannot be overstated. With Justice O’Connor’s confirmation, the axis of the legal world for women shifted, never to return to its old position. By 1981, women were mak ing their presence felt as law students, but had only the most precarious toehold on positions of influence within our profession. Many areas of practice were, for all practical purposes, closed to women. Few major law firms included women on their

Kathleen M. Sullivan*

For those of us who graduated from law school in 1981, the year that Sandra Day O’Connor became the first woman Justice appointed to the Supreme Court, it was difficult to imagine the legal world she had faced upon her own graduation from Stanford Law School in 1952. While her classmate William H. Rehnquist headed off to a clerkship with Justice Robert Jackson, his future colleague on the Court scrambled for legal work despite her top grades and law review membership. Law firms would consider her for positions as a secre tary but not as a lawyer; she later recalled them asking, “Ms. Day, do you type?” Nothing in her experience then could have foretold that she would ascend to the high Court at all, much less become one of the most influential Justices in its history.

In the intervening three decades, Justice O’Connor exercised excep tional strength of character, responding to the overt professional sex discrimination she encountered with remarkable resilience and re sourcefulness. She talked her way into a job in a local prosecutor’s of fice. She served as a government procurement lawyer while her hus band John O’Connor was stationed in Germany in the JAG Corps. She opened a storefront law office in a shopping center when she and her husband settled back in Phoenix. While raising three sons, she mastered the art of political networking. She wasted no energy on self-pity. As one recent biographer noted, Justice O’Connor has followed a lifelong mantra that

A TRIBUTE TO

JUSTICE SANDRA DAY O’CONNOR

I am honored to be a part of this celebration of my friend and colleague Justice Sandra Day O’Connor. It is hard to believe that almost fifteen years have gone by since she was appointed to the Supreme Court of the United States. Fifteen years on the Supreme Court is quite a milestone, even for a person who has made a career out of setting milestones.

On July 7, 1981, President Ronald Reagan announced Judge O’Connor’s appointment and stated that she “is truly a person for all seasons, possessing those unique qualities of temperament, fair ness, intellectual capacity, and devotion to the public good which have characterized the 101 brethren who have preceded her.”1 In deed she had unique qualities and a unique perspective.

Sandra Day O’Connor was raised on a rural cattle ranch in Ari zona. Several years after graduating as one of the few women in her class at Stanford University Law School, she served as an assistant attorney general of Arizona. In 1969, she began her tenure as a legislator in the Arizona State Senate. After rising to the post of majority leader in the Arizona State Senate, she became a superior court judge and then an appeals court judge.

Justice O’Connor took those experiences with her to the Supreme Court. It is interesting to note that in addition to being the first woman appointed to the Supreme Court of the United States, Justice O’Connor was the first state court jurist to join the Court since I took the oath

A TRIBUTE TO

JUSTICE SANDRA DAY O’CONNOR

Justice Sandra Day O’Connor is the quintessential American pioneer. The word pioneer has its origins in the old French word “pionier,” or soldier travelling by foot. In English it describes a per son who ventures into unknown or unclaimed territory, one who settles in a previously barren environment-a trailblazer and inno vator.1 For Americans of any political stripe, these pioneer qualities represent the greatness of our nation and the essence of our na tional identity. Much more than the particular path blazed or terri tory claimed, we value the tenacity and independence that the endeavor itself demonstrates. Justice O’Connor possesses this pio neer character in abundance, and it has led her to triumph over formidable odds, both social and personal. Perhaps more than any other person in public life today, she embodies a spirit and tradi tion that is at the heart of being American.

Justice O’Connor was born and raised on a three hundred acre Arizona cattle ranch, which was first settled by her ancestors many

years earlier. Twenty-five miles from the nearest neighbor, life on the ranch was surely isolated and lonely.2 But from those early years in the Arizona desert, a young Sandra Day must have also learned independence and self-reliance, living in one of our coun try’s great open spaces, horseback riding under the limitless sky. With only herself to consult, she learned the values of practicality and seU:possession.

She was sent