Authors: Linda Hirshman
“She only ruled about the nursing school!” Wilbur Colom snorted. Within days of the opinion, Colom recalls, “men flooded the other departments at the W with applications. And the administrators decided they had spent enough money defending a lost cause. The MUW was integrated in every department within a year.” It was the first of many O'Connor opinions that made major social change and then limited the decision to the particulars of the case at hand, leaving everyone who had to make decisions afterward somewhat in the dark. In this case college administrators decided on their own what they should do. In later cases, plaintive requests for guidance reverberated up the food chain in the federal courts: “Justice O'Connor, now what do we do?”
The women of the “W” were horrible to Joe Hogan. He did not even last long enough to get his degree. As boys began to flood into the Mississippi University for Women, however, stereotypes fell like levees. The girls, who had been “living like nuns, shut up in dormitories with mandatory hours,” Colom observed, moved out! “They joined the guys living in apartments in town,” like most college kids in the 1980s. “And then,” Colom reports gleefully, “the college became sort of a center for lesbians. It's widely thought,” he says, “that a lot of the girls aren't distracted by the guys at all, as the state said they would be if the college were coed.”
ROLE MODEL
O'Connor's role in the
Hogan
decision turned out to be a harbinger. She would be a force for progress and a force of caution and compromise. However conservative her self-image, she had no choice. From the day she was sworn in, she was a light and a lightning rod. On the day of her ceremony, she borrowed a robe that was too short, so her dress peeked out from underneath it in photos shot on
the Supreme Court steps. In a preview of the decades to come in treatment of women in politics, the inch of pink cloth elicited yards of criticism and comment.
But she was determined not to fail. Proud and competitiveâher ferocity on the tennis court was legendaryâshe was strengthened by an unlimited capacity for work and, as the long-ago incident with the flat tire on the ranch reveals, an intense determination to finish whatever she started. Politician as she had been for so long, she knew that part of her success had nothing to do with making good decisions about cases before the Court. She was a role model.
She started an all-female aerobics class at the Court, innocently saying she had always stopped for aerobics on her way in to work in Phoenix. The command performance early in the morning was a mixed blessing for her female clerks (“while we were up there dancing around, the guys were already working,” one complained). But aerobics gave the girls a real chance to bond with their justice and were a vivid contrast to the all-male basketball games in the “highest court in the land.” Nor was the lesson lost on the politically savvy young law clerks. Once O'Connor started the aerobics, “Justice White didn't own the athletic franchise anymore,” as Justice Souter's clerk David Goldberg observed when he came to the Court a decade later.
After she got her sea legs in the first term, the legendarily energetic jurist began to intersperse her opinion-writing duties with a staggering schedule of speech making and symbolic ribbon-cutting. Expectations in the gorgeous glassed-in auditorium at the Wingspread Center in Racine, Wisconsin, could not have been higher when she rose one April day in 1982 to address a meeting of women judges, organized by two prominent feminist academics and two prominent judges' associations. Deploying her usual combination of optimism about women's prospects and the bra and wedding ring routine that had served her well in years of Arizona politics, O'Connor was not a hit. During the Q and A someone asked her about work/family balance, a question far newer then than it is today. “Women should always put their families first,” O'Connor answered. Barbara Babcock, the
first female professor at O'Connor's alma mater, Stanford Law School, was not pleased to hear this. O'Connor's reflexive family-first answer was insulting to a room full of women, many of whom had sacrificed family in whole or in part to be where they were. O'Connor hadn't yet learned, Babcock remembers, how to do the woman thing.
But she was always a fast learner. She was also possessed of an almost perfect photographic memory, hugely useful for both her role model duties and for the mountains of paperwork in her job. One day, she got on an elevator with the Arizona lawyer Mary Schroeder, the power went out, and all the buttons went dark. When it came back on, Justice O'Connor remembered perfectly which floor everyone in the crowded elevator had chosen.
For the most part, in those early days, she tried her best to sidestep the problem of women entirely. When she started giving speeches, she tried to position herself simply as an authoritative voice to speak about the administration of justice. She went to her alma mater, Stanford, and gave a talk, “What Individuals Can Do to Improve the Courts.” She opened the new Vanderbilt Law Library with the talk “Professional Competence and Social Responsibility.” These exhortations to individual virtue, like volunteering, satisfy the Rathbun-like injunction to improve the world without actually upsetting the existing social order in service of a better world. Like O'Connor's narrow, fact-based opinions
,
her vision is benign, but threatens little large-scale change.
When a person wields the critical fifth vote at the level of the Supreme Court, however, disproportionate social consequences often ensue, something that the theorists on the Court, right and left, all understood. Regardless of Justice O'Connor's narrow, problem-solving methodology, it was not a big step from the order admitting a man to study nursing to massive partying in coed off-campus apartments at the former women's university. Similarly, although the content was not overtly feminist, her mere presence on the powerful Court was a lesson in itself.
She quickly developed a way of talking about social change without threatening the establishment. It was an exquisite balance.
Celebrating the seventy-fifth anniversary of the New England School of Law, which started as a law school for
women
(Portia Law School!), she said the law school “has continued to demonstrate an admirable sensitivity to those groups underrepresented in the legal profession. . . . Over the next twenty-five years there is no doubt that courtroom benches, law facilities, and law firm partnerships will reflect the increased percentage of women and other minority groups who are now being admitted to practice.” All the rest of her presentation is about the gender-neutral subject of a law school's responsibility to train its students in “ethical responsibility” and “practical competence.”
Arriving at Fordham Law School in New York to dedicate its new building, she again opened her remarks with an homage to the role of women: “I think I should acknowledge and thank in part for my invitation Fordham's Rector in 1918. That year the faculty faced the issue of women's rights. The minutes of a May 1918 faculty meeting note that shortly before the close of the meeting, the Rector âasked for a discussion of the advisability of matriculating women in the Law School.' After listening to the opinion of the various faculty members he announced that he would take the âmatter under advisement' and notify the faculty of his decision.” A postscript to the minutes adds: “In a letter from the Rev. Rector . . . under the date of July 6, 1918, he writes, âit has been decided that, owing to objections raised against it, women will not be admitted to classes of the Law School this Fall.'” The minutes, however, contain a terse unexplained amendment, O'Connor continues: “In September 1918 the Rev. Rector authorized the matriculation of women and ordered the insertion of this fact to be put in the newspapers.”
And then she delivered the punch:
“I like to think that your former Rector not only helped advance the cause of women in the law, but that he would have been pleased that a woman was invited to give remarks today.”
The rest of the speech was the usual gender-neutral call to public service. That a woman was invited to give remarks was sufficient; in O'Connor's case, the medium was the message.
O'CONNOR'S ABORTION ANALYSIS ON A COLLISION COURSE WITH ITSELF
O'Connor's pleasantly symbolic feminist honeymoon cruise was about to hit the shoals of abortion, the issue that would not die. The Catholic Church had been fighting the liberalization of abortion laws since the 1960s. In 1967, the National Conference of Catholic Bishops had founded a national Right to Life Committee to resist the movement to reform, and the Church was starting to have some success when
Roe
came down. Bill Cox, assistant director of the Missouri Catholic Conference, knew that the Catholic Church alone could not undo what the Court had done. The Protestant clergy in Missouri had been essentially silent in the days after
Roe
.
At the instance of the MCC staff the Missouri bishops approved the formation of a secular pro-life group to be called Missouri Citizens for Life (MCL). Cox began crisscrossing the state, setting up MCL chapters and soliciting help from non-Catholics. MCL started at the Catholic Conference office, but, like the anti-abortion movement in general, it soon moved to an independent identity, Missouri Right to Life, which formed a political action committee and began to endorse pro-life candidates for election.
Within a year of the
Roe
decision, Missouri passed its first post-
Roe
anti-abortion law, which allowed doctors, nurses, and hospitals to refuse to perform an abortion when it violated their moral, ethical, or religious beliefs. In 1974, Missouri passed a bill requiring informed consent by the woman considering an abortion, her spouse if married, and the consent of the parents of an unmarried minor under the age of eighteen. It also banned abortions performed after twelve weeks of pregnancy that involved the injection of a saline solution into the mother's womb.
Early on, the resistance to liberalized abortion transcended the Catholic origins. The 1972 presidential campaign of the Protestant Richard Nixon embraced abortion opposition as a way to attract Catholic Democrats. Although the first Missouri law was introduced by a Catholic legislator, Missouri Right to Life proudly presented the self-identified “Episcopalian” Thomas Eagleton to the public in a massive anti-abortion rally in 1973. As the '70s passed,
the Republican Party gradually framed resistance to abortion rights as part of its resistance to cultural and sexual liberation in general. Although the Supreme Court struck down the ambitiously anti-abortion Missouri law, the movement would keep passing laws, looking for holes in the
Roe
decision and for any legal method to restrict abortion. Thanks in part to Cox and his colleagues' efforts, Missouri would be what scholars later called a “challenger” state. And sooner or later those challenges were going to come before the Supreme Court with the first women on it.
No one was more aware of the challenge than
Roe
's author, Harry Blackmun.
Blackmun really did not like his new colleague. Even before an actual female justice had emerged as a possibility in 1981, the so-called emancipator of women had pettishly argued against the Court dropping the traditional “Mr. Justice” salutation. Justice Stevens had attended a moot court session at Notre Dame alongside the well-respected appeals court judge Cornelia Kennedy. After one of the winning all-female team had addressed her as Madame Justice for the umpteenth time, Kennedy laid it out. “A simple Justice will do,” she explained. Justice is an honorable-enough title! In anticipation of a Miss or Mrs. (or Ms.) coming on board at some point, Justice Stevens brought the story to his colleague Potter Stewart, who proposed the change. The Court made it regardless of Blackmun's resistance. Once O'Conner got there the shy, perfectionist, self-deprecating Minnesotan found his outgoing, relentlessly sociable, supremely self-confident colleague altogether too much to take.
Blackmun's behavior was unattractive, but neither gender nor personality was at the heart of his problem with O'Connor. His problem was abortion. As the political pressure to roll back abortion rights rose, the dwindling majority on the Court for Blackmun's signature achievement,
Roe v. Wade
, already had him nervous. President Ronald Reagan presented him with a colleague who told the Senate she found abortion personally “repugnant.”
The pace of challenges to abortion rights guaranteed that he'd get to take her measure on his issue soon enough. Driven by people
like Missouri's Bill Cox and his organization, states and localities had produced an almost endless stream of regulations to make getting the procedure as hard as possible. In 1982, just a year after O'Connor joined the Court, the justices gathered several casesâfrom Cox's Missouri, as well as Ohio and Virginiaâto set out some standards for what restrictions, if any, they would allow. The states and cities before the Court had demanded that doctors tell women that all pregnancies are “human life” from the beginning and recite a list of dire consequences abortion might produce. They imposed a hospital requirement on abortions after three months and required minors to inform their parents of their plans. Following
Roe
, the appeals courts had duly struck the restrictions down. Justice O'Connor joined her conservative brethren on the court to take the cases for review, under the title
Akron v. Akron Center for Reproductive Health
. It was the first signal she sent out.
When the dust settled in the
Akron
case,
Roe
emerged unscathed. Justice Powell wrote a strong opinion for the majority of six, forbidding states from making abortion harder to come by simply because they didn't want women to get abortions at all. Abortion is a fundamental right, he wrote, and as such may be limited only by a compelling state interest, usually in maternal health.