O’Connor, Ginsburg: A brief absence and a farewell show how far we’ve come

On Sunday evening in Washington, the honoree was absent from an awards ceremony. Justice Ruth Bader Ginsburg was healing from fractured ribs from a fall in her Supreme Court office. The 85-year-old, two-time cancer survivor and cultural icon is tough, and will return to her office soon. But her absence, and the recent announcement by retired Justice Sandra Day O’Connor that she is suffering from early-stage dementia, prompts a consideration of what both justices have meant to the court and to women in the U.S. legal and wider community.

O’Connor was first — indeed, her biography due for release in spring 2019, is titled “First” and portrays the “cowgirl from Arizona” as a self-reliant, resilient woman of the West. She grew up on Lazy B Ranch, was educated at Stanford, and famously excluded from the legal plum jobs open to her classmates — including William Rehnquist, her fellow Arizonan, one-time suitor and later Supreme Court colleague.

{mosads}O’Connor refused to give in. She practiced law at a strip-mall storefront, and later was elected to the Arizona legislature. Gov. Bruce Babbitt named her to the Arizona Court of  Appeals in 1979, and it was rumored that Babbitt may have feared a challenge for his office from the popular and feisty O’Connor. This was the woman who came to the attention of President Reagan in 1981. That O’Connor was an avid golfer, angler, party-giver with husband John, and mother of three sons certainly completed the picture for Reagan and his advisers on the Supreme Court nomination, allowing him to fulfill a campaign promise to nominate its first woman member.  

On the court, O’Connor was not so different than she was before it. The last state legislator to serve on the court, she was a believer in the power and promise of the states, protective of their prerogatives in tussles between the federal government and state power. On reproductive freedom issues, she walked a narrow path in the 1992 Planned Parenthood v. Casey case, cobbling together a majority for an opinion saving Roe v. Wade, but at the cost of increased restrictions on access to abortion — holding the line at a provision that would have allowed a husband to veto his wife’s exercise of the right. That, to the independence-minded O’Connor was a red line.

And her pragmatism meant that her jurisprudence was not always predictable: in the Guantanamo cases she famously restricted the federal government’s hand, saying that “a state of war is not a blank check” for curtailing due process even during a war on terror. Affirmative action, in her view, was the work of a single generation — an interim solution to a nagging problem that she thought would be fixed in 20 years by leveling the playing field to remedy past discrimination. The opinion she most regretted joining was not the majority in Bush v. Gore, but Republican Party of Minnesota v. White, widely regarded as a key factor that opened the floodgates of money in state court judicial elections, which O’Connor sees as damaging the prestige of the judiciary she cherishes.

Did she see herself as a feminist? Yes and no: she said that a wise female judge and wise male one would reach the same conclusion. But her lived experience peeks out from the corners of her opinions, particularly on cases affecting women and children.

For Justice Ginsburg, the answer to the question never was equivocal. She recently called herself a “flaming feminist.” Ginsburg’s early career also was marked by employment discrimination, including pregnancy discrimination. Her biographer reports that as a 21-year-old Army wife, Ginsburg was told that her job as a claims examiner would be downgraded to a clerk typist because of her first pregnancy and she would be required to quit when her child was born. And like O’Connor, she had trouble finding a first job after graduating from Columbia Law School.

{mossecondads}Feminism was Ginsburg’s brand — as the co-founder in 1972 of the American Civil Liberties Union (ACLU) Women’s Rights Project, she argued a series of landmark cases on sex discrimination, over 300 in all, sometimes selecting men as lead plaintiffs to make the point that gender discrimination hurts both sexes. While access to health services sometimes was at stake, more often the cases were about access to economic benefits and job opportunities. She was renowned for this work even before President Clinton nominated her to the Supreme Court — and was outspoken both in majority and in dissent on the court.

In recent years, she has begun reading those dissents from the bench — as she did in the landmark Ledbetter case, an Equal Employment Opportunity Commission (EEOC) case on pay discrimination. Ginsburg’s dissent was one factor that led to congressional action making it easier to sue an employer for past pay discrimination.

Ginsburg’s jurisprudence is more impassioned and more predictable than O’Connor’s. Though O’Connor hated to be called the court’s swing vote, she often was. Ginsburg has grown in the role of dissenter, and had her first chance to assign an opinion as senior justice in the majority only just in the 2018 term, in an immigration case.

The two justices admired each other, but their gravitational pull was not to each other but to other like-minded justices. Ginsburg’s much-noted friendship with Antonin Scalia, bridging an ideological chasm, was founded not on shared ideology but a love of opera and good food. O’Connor, meanwhile, had a great friendship with Justice Stephen Breyer, based on mutual concern about civic education and the role of the judiciary in a democracy.

Each of the two “firsts” has left an important legacy to the women who followed them: Justice Elena Kagan noted with pleasure how unremarkable it was during her confirmation hearings that she is female. And women watching since O’Connor’s 1981 appointment have themselves become judges and lawyers, some at the top of the profession.

O’Connor and Ginsburg made the presence of a woman on the nation’s highest court a norm. For those lawyers and legal scholars whose memories predate 1981, we hope that young women and young men, as they grow to lead, remember that what seems unremarkable today is actually a testament to two women of indomitable will, whose achievement was only as durable as our will to sustain it.   

Meryl Justin Chertoff is executive director of the Aspen Institute Justice and Society Program and an adjunct professor of law at Georgetown University Law Center.