DCNOW mourns the passing of history-making former U.S. Supreme Court Justice Sandra Day O’Connor, the nation’s first female U.S. Supreme Court Justice. On December 1, 2023, she died at age 93 in Phoenix from complications from advanced dementia and a respiratory illness. We are grateful for O’Connor, who was once viewed as the most powerful female in the United States, being a role model for women and breaking one of the major U.S. government glass ceilings. Her career, spanning private practice and all three branches of government, was transformative.
After graduating from high school at 16 years old, O’Connor excelled in college and law school at Stanford University. She began law school at 19 years old and was one of only five females in her class. She graduated with undergraduate and law degrees in six years, not the typical seven years. In law school she served on the Stanford Law Review’s board of editors. She graduated, ranked third out of 102 students. The top student was her future U.S. Supreme Court colleague William H. Rehnquist, who proposed marriage to O’Connor (but she said no). When Rehnquist left law school early and had a U.S. Supreme Court clerkship in Washington, D.C., O’Connor wrote to her parents, “We all truly hated to see him leave, in spite of, perhaps, even because of, all the funny things he does. He certainly has a brilliant career ahead.” Rehnquist became “the 16th Chief Justice of the United States, the 89th Associate Justice of the Supreme Court of the United States, and the 100th Member of the Court” and served on the Court for more than 33 years.
Similar to the second female U.S. Supreme Court Justice Ruth Bader Ginsburg (RBG), O’Connor struggled getting a job after law school presumably due to sexism but ended up breaking major legal barriers for females. O’Connor was offered a legal secretary position, which was beneath her education and training. She began as Deputy County Attorney in San Mateo, California, starting by offering to work for free. After continuing her career in private practice elsewhere, she became Arizona’s assistant attorneys general.
O’Connor continued her career in higher Arizona state government positions. In 1970, she won election to the Arizona State Senate. In 1971, she wrote then-President Nixon asking that he appoint a female U.S. Supreme Court Justice. In October 1971, Nixon nominated two males, including Rehnquist. In 1972, she became the first female majority leader of a state legislative upper chamber when her colleagues chose her to be Arizona’s State Senate Majority Leader. In 1974, she was elected to be a Maricopa County Superior Court judge. In 1979, then-Governor Bruce Babbitt appointed her to be a judge on the Arizona Court of the Appeals. Sometime, she founded the Arizona Lawyers Association and the National Association of Women Judges.
O’Connor is most famous for her historic appointment to the U.S. Supreme Court. In 1980, then-U.S. Presidential candidate Ronald Reagan said he would name a female to the U.S. Supreme Court. Reagan, who needed more support of females, made this announcement during the last month of his presidential campaign. He stated, “I am announcing today that one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find... It is time for a woman to sit among the highest jurists.” Decades later, Joe Biden said he would appoint the first African-American female to that Court. Both future U.S. Presidents followed through on their promises.
In July 1981 months after becoming U.S. President, Reagan nominated O’Connor to the nation’s highest court to replace the retiring Justice Potter Stewart.Reportedly, Rehnquist privately recommended O’Connor to Reagan. At a Stanford commencement address in 2004, O’Connor made the following remarks about her U.S. Supreme Court appointment,
His [Reagan’s] decision was as much a surprise to me as it was to the nation as a whole. But Ronald Reagan knew that his decision wasn’t about Sandra Day O’Connor; it was about women everywhere. It was about a nation that was on its way to bridging a chasm between genders that had divided us for too long.
Under then-National Organization for Women (NOW) President Eleanor Smeal, NOW supported O’Connor’s nomination. Smeal testified for O’Connor in the U.S. Senate, referring to this nomination as “truly historic” and “a major victory for women’s rights.” Her U.S. Senate confirmation hearings were the first such hearings to be on live television. Current U.S. President Biden was Ranking Minority Member of the U.S. Senate Judiciary Committee, which held those hearings. In his opening statement, he mentioned the historic nature of her nomination, saying,
Last, I would like to say that there has been a good deal of discussion and there will be much more discussion about your being the first woman nominee to the Supreme Court. I think probably everyone in this body feels that it is high time and it is long overdue.
O’Connor’s appointment to the nation’s highest court yielded a large response. In her first year there, she received more than 60,000 letters, breaking the record of letters for any member in the court’s history. She said,
I had no idea when I was appointed how much it would mean to many people around the country. It affected them in a very personal way. People saw it as a signal that there are virtually unlimited opportunities for women. It's important to parents for their daughters, and to daughters for themselves.
Since 1981, women have made major strides in law and government. Times were very different in September 1981 than they are now for females. The percent of female law students increased greatly from 33.5 percent in 1981 to 55.75 percent (of ABA-approved law schools) in 2022. Women outnumbered men in Juris Doctorate programs for the first time in 2016, and then again in every year since then (as of 2022). In 1981, very few women became partners in law firms. However, now, females are 43.7 percent of new partners from 196 major U.S. law firms. In 1981, 48 of almost 700 active federal judges were women (an increase from fewer than ten in early 1977). When she retired in 1995, there were 201 female and 622 male active federal judges. In 2021, females composed 39.29 percent of federal judges.
Since O’Connor joined the Court, females have made immense strides in terms of top government positions. Unlike now, in 1981, there had never been a female U.S. Vice President, U.S. Speaker of the House, U.S. Secretary of State, U.S. Attorney General, U.S. Secretary of Treasury, U.S. Secretary of Transportation, U.S. Secretary of Agriculture, and certain other high government positions. Between 1981 and now, some states (including Arizona, California, Minnesota, New Hampshire, Nevada, Washington State, and Maine) have had all-female U.S. Senate delegations, and one state (New Hampshire) had an all-female Congressional delegation (and a female Governor at the same time). Now (unlike in 1981), there have been multiple women on major political party presidential tickets. When O’Connor joined the Court in 1981, there were just two sitting female U.S. Senators. Now, 25 females are U.S. Senators (representing 41.67 percent of the 60 female U.S. Senators in U.S. history). Earlier this year, due to Vermont electing and sending a female to the U.S. House of Representatives, all 50 states have had been represented by at least one female in Congress. Before O’Connor joined the court in 1981, six women had been Governors, and three of them were elected in relation to their husband either passing away or not being able to run for election. Now, 50 females have been Governors (not counting the one female Governor of Guam and the two female Governors of Puerto Rico) in U.S. history. Currently, a record 12 female are Governors at the same time.
O’Connor had an illustrious career on the U.S. Supreme Court, writing 645 opinions. U.S. Representative Eleanor Holmes Norton (D-D.C.), said the following about O’Connor, “she…made us understand why it was important to have a woman on the court.” O’Connor was also known for writing opinions that were narrow and practical.
O’Connor helped with relationships on the nation’s highest court. RBG wrote the following about O’Connor, “She has done more to promote collegiality among the Court’s members, and with our counterparts abroad, than any other Justice, past or present.” Justice Clarence Thomas said the following about her, “She was the glue. The reason this place was civil was Sandra Day O'Connor.” O’Connor also brought the other justices for lunches together during oral-argument days. Justices could not talk about their work at those lunches, but these meals could help working relationships.
O’Connor was revered as a moderate and a swing vote. Perhaps, as a sign of her importance on the Court, sometimes during O’Connor’s U.S. Supreme Court tenure, that Court was referred to as the O’Connor court although Rehnquist was Chief Justice then. During the 1990s and 2000s, O’Connor voted with the majority in closely-decided cases more than any other U.S. Supreme Court Justice. As Justice Elena Kagan recently remarked on O’Connor on O’Connor’s death, “Justice O’Connor of course became a hugely influential figure—often the single person who decided the Court’s most important cases.” According to U.S. Supreme Court scholar Linda Greenhouse,
Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.
In her 24 years on the Supreme Court, O’Connor was the decisive vote in at least 330 cases, including Grutter v. Bollinger (2003) (on affirmative action) and Planned Parenthood v. Casey (1992) (affirming Roe v. Wade/abortion). In that affirmative action case’s majority opinion, she wrote “Affirmative action’s benefits are not theoretical, but real. Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized.” In a joint opinion in the Planned Parenthood case, she wrote to reverse Roe v. Wade “under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court’s legitimacy beyond any serious question.” She did not let her opposition to abortion as a personal issue control her crucial vote on that case. She also wrote the opinion in the critical McConnell v. Federal Election Commission campaign finance case, which upheld the McCain-Feingold law, in 2003. In recent years without her on the Court, the much more conservative Court overturned abortion and then affirmative action. It also overruled a major part of her McConnell v. Federal Election Commission decision through the Citizen United Case in 2010. O’Connor responded to that news, saying, “I step away for a couple of years and there’s no telling what’s going to happen.” In public, she expressed grief about the dismantling of some of her majority opinions.
Perhaps, O’Connor’s most consequential U.S. Supreme Court vote was her pivotal vote in the Bush v. Gore case of late 2000. Newsweek reported that she wanted George W. Bush to win the U.S.’s presidential race of 2000 so she and her husband could retire in Arizona and that a Republican would nominate her replacement. O’Connor denied that account. In a decision that broke multiple judicial precedents, the U.S. Supreme Court ruled five-four in Bush v. Gore that Florida’s recount must stop, thus handing the presidency to Bush. Before oral arguments, O’Connor circulated a memorandum to her colleagues; that move might have caused her and Justice Anthony Kennedy to have the most amount of influence in the majority opinion. Some people think that O’Connor and Kennedy were the main authors of the unsigned majority opinion. Years after she retired, she had regret over that case, saying it was most likely a mistake for that court to hear that case and pick Bush. She also said that that case “gave the court a less than perfect reputation.”
That Bush v. Gore case forever changed U.S. history. If the U.S. Supreme Court had ruled differently, the Florida revote could have continued, and then-Vice President Al Gore could have become the U.S.’s 44th President. In 2004, Gore most likely would have been the Democratic Presidential nominee. Thus, U.S. Senator John Kerry would not have jumpstarted the political career of Barack Obama by having Obama be the keynote speaker of the 2004 Democratic National Convention. There would probably not be Presidents Trump and Biden (who was Obama’s Vice President) without a President Obama. The world could be very different if Gore had become President.
In 2005, O’Connor announced her retirement to take care of her husband John, who had Alzheimer’s disease. Around the time of her retirement, she said, “He sacrificed for me. Now I want to sacrifice for him.” She would have wanted to stay for several years more until she was really sick. O’Connor retired at least a year early because Rehnquist said he was not prepared to step down. O’Connor thought that it would be difficult for the United States to handle two retirements at the same time. By the time O’Connor’s successor was confirmed, there was not much she could do for her husband. Her husband ended up moving to an Alzheimer’s facility, where he became romantically involved with a female resident. According to the oldest son of O’Connor and her husband, “Mom was thrilled that Dad was relaxed and happy and comfortable living here and wasn't complaining.”
O’Connor’s retirement sparked reactions. NOW, which had named its annual speech after her, planned a march on Tennessee’s capitol in reaction to her retirement. Women were split on whether a female should replace O’Connor. At a news conference, then-Feminist Majority President Smeal demanded that a woman replace O’Connor, saying “We can't go back to the time of tokenism, one woman out of nine. Symbolism is very important. We're telling the world we have to eliminate the bias against women. There's no better way to do that than to practice what you preach.” Others disagreed. For example, Susan Ford Bales (whose father was U.S. President Gerald Ford) said, “If you can find a man who thinks like a woman and cares about women as much as women do, then fine, appoint a man.” However, she also said, “I just don't think a man can adequately represent women's fundamental right to equality in areas such as equal pay and health."
Ultimately, a male replaced O’Connor. O’Connor regretted that a female did not replace her on the Court. In 2005, George W. Bush nominated John Roberts to replace O’Connor. As an assistant to the U.S. Attorney General, Roberts had assisted in preparing O’Connor for her U.S. Senate confirmation hearings. He recommended that she did not say to Congress how she could vote in likely U.S. Supreme Court cases. He was concerned that her answers could change the outcome of some court cases. After O’Connor announced her retirement, Rehnquist died. However, later in 2005, Bush nominated Roberts to replace Rehnquist, who had died. In October 2005, Bush nominated conservative Samuel Alito to replace O’Connor, tilting the Supreme Court right-ward. On the Supreme Court, Alito wrote the majority opinion of the Dobbs vs. Jackson Women’s Health Organization case that reversed Roe v. Wade in 2022. On January 31, 2006, O’Connor retired from the U.S. Supreme Court.
O’Connor wanted more female U.S. Supreme Court Justices, but she opposed the idea that her gender affected her views. She also had said the following to the Ladies’ Home Journal after her confirmation, “I think the important fact about my appointment is not that I will decide cases as a woman but that I am a woman who will get to decide cases.” When she found out that she was being nominated to that court, she had the following reaction,
It made me very nervous. It’s all right to be the first to do something, but I didn’t want to be the last woman on the Supreme Court. If I took the job and did a lousy job, it would take a long time to get another one.
O’Connor lived to see the U.S. Supreme Court become substantially more-female. In 1993, President Bill Clinton nominated RBG, who was confirmed and served on the Court until she died in 2020. O’Connor was very happy when RBG became a U.S. Supreme Court Justice. Male lawyers arguing before the U.S. Supreme Court had a hard time telling them apart although O’Connor and RBG did not look or sound similar to each other. That common occurrence caused O’Connor to wear a “I’m Sandra, not Ruth,” t-shirt and RBG to wear “I’m Ruth, not Sandra” t-shirt at a reception for female judges.
The other four female U.S. Supreme Court Justices are all serving and are Sonia Sotomayor (who U.S. President Barack Obama appointed in 2009), Kagan (who Obama appointed in 2010), Amy Coney Barrett (who U.S. President Donald Trump appointed in 2020 to replace RBG), and Ketanji Brown Jackson (who Biden appointed in 2022). Now, there are the highest number of females on the Court in U.S. history, and for the first time, all the members of one ideological part are all females. The three are the three liberals (one African-American – Jackson, one Hispanic – Sotomayor, and one Jewish – Kagan). Only slightly more than 40 years after the U.S. Supreme gained its first female Justice is it conceivable that the U.S. Supreme Court could become majority female relatively soon.
Just like former U.S. President James Earl Carter who has made immense contributions in his post-presidential life, O’Connor was an active former U.S. Supreme Court Justice. She served as a judge on federal appeals courts, was on the Iraq Study Group, has an honorary role of the College of William and Mary’s chancellor, supported judicial independence, and advocated for Alzheimer’s research and civics education.
O’Connor wanted to end partisan elections for judges. The Brennan Center for Justice at NYU’s law school said that 39 use judicial elections. According to that center’s study, the candidates raised the most money won in 90 percent of the elections. The Court Statistics Project says that 95 percent of cases are decided by state court judges and that in 2002, around 49 million cases were filed in courts of states. Candidates for judge positions frequently receive money from people who could very well appear before them. Elections can cause turmoil in courts. In Wisconsin recently, some Republicans threatened to impeach Democratic state Supreme Court Justice Janet Protasiewicz. Her election made that court more left-leaning. In 2014, O’Connor and the Advancement of the Legal System at the University of Denver created a 20-page long the O’Connor Judicial Selection Plan blueprint on changing state court judges elections.
O’Connor became especially active with civics education, which she viewed as her “true legacy.” In 2008, O’Connor said the following to the National School Boards Association in 2008, “I will make it my primary focus now to work on civics education in America. We have some work to do.”
While serving on the U.S. Supreme Court, O’Connor became interested in civics education. O’Connor’s civics education work began after the Terri Schiavo case occurred in Florida. In 1990, Schiavo went into full cardiac arrest and was in a vegetative state. While her parents wanted her to be kept alive, her husband wanted her feeding tube removed. After a court decided that her rube could be removed, then-Governor Jeb Bush signed Terri’s Law, which permitted the tube to be reinserted. After a court ruled to remove the tube, Schiavo died in 2005. O’Connor was afraid that such cases would cause politicians to remove judging from judges. O’Connor created a website that would inform young individuals about courts. However, soon, she understood that they had to know more about the U.S.’s democracy.
In 2009, O’Connor founded the Sandra Day O’Connor Institute for American Democracy, whose mission is “To continue the distinguished legacy and lifetime work of Justice Sandra Day O'Connor to advance American democracy through multigenerational civics education, civil discourse and civic engagement.”
In 2009, O’Connor also founded iCivics to transform civics education in the United States. This organization provides civics education resources, including online games. Up to nine million students and 145,000 teachers use this organization’s free and nonpartisan content each year in every state and the nation’s capital. The games are fun and informative, allowing players to be the President responding to international events in the Situation Room, to manage a state, argue court cases, and do other actions. When O’Connor was leaving from public life, Sotomayor joined iCivic’s board and is active. Sotomayor’s statement on O’Connor’s death noted that O’Connor “promoted civic education in a way that transformed how children learn about our shared responsibility as citizens.”
O’Connor’s work on democracy is especially important now when the nation’s democracy is still in danger. As the U.S. government is based on elections, it is imperative that the U.S. electorate is politically informed. However, all too often, people do not learn much about civics in school, and many Americans have limited knowledge of the U.S.’s government and political system. For example, in 2022, fewer than half of Americans can name the three branches of government. In 2023, the percent of Americans who can name those branches increased substantially to 66 percent, which is still low. If Americans cannot name those branches, then they would have trouble understanding separations of powers and checks and balances.
DCNOW member Miriam Edelman reflects on O’Connor’s civic education work, saying
I deeply appreciate O’Connor’s important civic education work. I have been concerned for decades by so many Americans’ lack of basic civic knowledge. I recall interning/working for the U.S. Congress and seeing people confused between the U.S. House of Representatives and the U.S. Senate. In graduate school, I wrote papers about civics education and civics camp. Although I knew that a lot of Americans do not know much about government and political system, I never imagined anything like the insurrection of January 6, 2021 (J6). My time as a juror on a J6-related trial earlier this year made me place even greater importance on the need of improved civics education. If people were better informed and media literate, so many would not have fallen for Trump's lies and would not have taken up his “it will be wild” invitation to come to D.C. on J6. Police would not have been outnumbered, and, the U.S. Capitol would not have been breached. So much harm could have been avoided. Learning from history is vital for history not to repeat itself.
Let’s honor Justice O’Connor’s legacy by really improving civics education. It would be very important to her. As she wrote near the end of her public letter in 2018 announcing the end of her participation in public life due to dementia, “I hope that I have inspired young people about civic engagement and helped pave the pathway for women who may have faced obstacles pursuing their careers.” The nation needs an informed electorate to function.