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Honoring a trailblazer

Sandra Day O’Connor had a career of remarkable firsts, but her Casey ruling sold women (and unborn lives) short

Sandra Day O'Connor walks with senators after her confirmation to the Supreme Court on Sept. 10, 1981. Associated Press/Photo by Scott Applewhite

Honoring a trailblazer
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Justice Sandra Day O’Connor—the first female justice on the United States Supreme Court—died last week at the age of 93. Justice O’Connor’s life is undoubtedly inspiring. As a young law student and the sixth generation to live and work on my family’s New Mexico ranch, I was enthralled to learn that she, too, had grown up riding ponies and punching cows. A signed copy of her book, Lazy B, is on my bookshelf, and I will always remember the day I had the chance to meet the gracious justice.

Yet the legacy left by Justice O’Connor is a complicated one. The justice had a career of remarkable firsts, facing adversity and setbacks with cowgirl grit, and inspiring generations of young women to become lawyers, including Justice Amy Coney Barrett. Her jurisprudential legacy, on the other hand, is a checkered one. Some suggest that at times her opinions looked more like the legislation she had once passed in the Arizona Senate than constitutional analysis. Most troubling, Justice O’Connor had the opportunity to overturn Roe v. Wade and yet voted to uphold that deadly decision despite her personal opposition to abortion.

It’s hard to be unimpressed by Justice O’Connor’s achievements. After growing up on the Lazy B, Justice O’Connor was admitted to Stanford University at the age of 16. In 1950, she began law school there, one of only five women in her class. The justice graduated third in her class. One of the two students ahead of her was William Rehnquist, with whom she later served on the United States Supreme Court. (The two also dated briefly during law school and Justice Rehnquist proposed to Justice O’Connor in 1951).

Despite her law school success, Justice O’Connor was unable to find work as an attorney. The only paid position she was offered was as a legal secretary. So she began working for the San Mateo County Attorney—for free—until she was offered a position as a deputy county attorney. When she and her husband John moved to Arizona, Justice O’Connor entered politics, becoming the first woman majority leader in any state in 1972. She was appointed to the Arizona Supreme Court and two short years later nominated to serve as the first female justice on the United States Supreme Court by President Ronald Reagan.

Justice O’Connor was the swing vote in the court’s most difficult cases.

Justice O’Connor served for 27 years. For much of that time, she was considered the most powerful member of the court. That’s not an easy job. Justice O’Connor was the swing vote in the court’s most difficult cases, meaning that her vote often decided which way those cases would go. The justice was a staunch defender of federalism—the idea that states have an important role to play in the governance of our nation. Yet she had a mixed legacy with respect to religious liberty.

And then there’s the elephant in the room: abortion. When President Reagan’s team interviewed the then-Arizona Supreme Court Justice, she reportedly told them she was personally opposed to abortion. And the justice had long prioritized her family. She took five years off from the practice of law to be at home with her young children. In an interview, her three grown sons said they had come first. They explained how, once they started school, she brokered a deal to work two-thirds time for half pay. And they told of a time when one of them had dropped the cookies he was assigned for school. Then-Majority Leader O’Connor adjourned the Arizona Senate, went home, and remade the snacks, before returning to the Capitol to finish the session. Similarly, when her husband’s Alzheimer’s worsened, she stepped down from her position as associate justice.

Yet despite her personal opposition to abortion, Justice O’Connor provided the crucial vote to uphold Roe v. Wade in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey. The case was a bitter defeat for pro-life advocates. Justice O’Connor authored—along with Justices Kennedy and Souter—a plurality opinion that upheld what they saw as the “essential holding” of Roe—that women have the right to an abortion before viability. Women, the plurality insisted, needed abortion to obtain their place in society. In so doing, the Supreme Court sold women short. There is more than a little contradiction at the heart of Justice O’Connor’s worldview—a worldview that championed the family in her personal life even as her abortion jurisprudence would undermine the family in public life.

As Justice O’Connor demonstrated so well, it is possible to both be a mother and to have a fulfilling life. In this vein, the justice broke glass ceiling after glass ceiling and did so as a wife and mother. This trailblazing daughter of the Southwest inspired so many young lawyers, me among them.

Erin Hawley

Erin Hawley is a wife, mom of three, senior counsel at Alliance Defending Freedom, and a law professor at Regent University School of Law.

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