A moderate Republican appointed to the U.S. Supreme Court by President Ronald Reagan, Justice Sandra Day O’Connor is often left off the list of major feminist icons, eclipsed in the media by her “notorious” younger colleague. But O’Connor, the first female justice on the Supreme Court, fought hard for women’s rights throughout her career, protecting abortion rights for years after Roe v. Wade. She just did it a little more discreetly, without the T-shirts and the memes.
“She did as much for women’s rights as anybody alive,” says Evan Thomas, author of “First,” a new biography of Justice O’Connor. “And that’s including Justice Ginsburg.”
I spoke with Thomas, my former college journalism professor, along with his wife, Oscie Thomas, who joined Evan on most of the 350 interviews they conducted for the book and edited the final manuscript. “In our house,” she told me, “It was all Sandra, all the time.”
This interview has been edited for length and clarity.
Caroline Kitchener: Was Justice O’Connor a feminist?
Evan Thomas: One of her closest friends said she was an “unfeminist feminist.” She understood that it was perilous for her time to be too far out there. So when she was a state politician, serving in the Arizona state legislature, she was careful. Addressing the Rotary Club in Arizona, she said something that sounds so off-putting to us now: “I come to you with my bra and my wedding ring on.” It was the late ’60s, and the feminists were being mocked as bra burners. So she is responding to that. She is saying, “Hey, look, I’m a traditional woman. I’m not a crazy feminist."
CK: How do we see her advocating for women’s rights?
ET: It’s very significant that she introduced the Equal Rights Amendment in the Arizona legislature. But then she lets it die in committee when she is majority leader. And the feminists are mad at her. They feel betrayed. But O’Connor knew it didn’t have the votes, that it was going to die on the floor. So why get into a stupid, self-righteous fight about this, to achieve nothing? Instead, she starts to go around and amend every single law in the state of Arizona that discriminates against women. So, in the end, she gets much more done.
CK: Is she pro-choice?
ET: Yes. But she was crafty — crafty and also sometimes ambivalent.
Oscie Thomas: Evan, what does crafty mean?
ET: She did not want to take a clear-cut position on abortion at the very outset, and especially during her confirmation hearings, because she knew she had to get along with the Reagan administration, which is on the record for being antiabortion. She’s lucky, because she gets into her [Supreme Court] interview with Reagan, and he starts to talk about abortion, saying that he believes life begins at conception. But he never asks her how she feels.
OT: He says, “If there is any doubt, then why not err on the side of life?” But that’s all.
ET: In her diary, she writes something along the lines of, “Phew.” Well, she doesn’t say that exactly. But it’s obvious she is relieved.
CK: You said O’Connor has done as much for women’s rights as anyone else alive. What makes you say that?
ET: For starters, she was the one who saved abortion rights for 25 years. Because she was the swing vote: If she had gone the other way, if she had done what was expected of her, that would have been the end of a constitutional right to an abortion. There were multiple cases where Roe came back up, most notably Planned Parenthood v. Casey in 1992.
She also did as much as anybody to preserve affirmative action. On the court, when [Justice Antonin] Scalia was railing against it, she said, “Oh, Nino, how do you think I got my job?”
OT: Any time she saw an opportunity to help women, she took it. She was single-minded in the state legislature, very deliberate and very successful. And then on the Supreme Court, she would take civil rights cases specifically that she knew would make a big difference for women.
CK: Justice O’Connor was one of very few female lawyers when she graduated from Stanford in the early 1950s. How did she get her start in law?
OT: Well, first, she applies to the law firm Gibson Dunn, and they say, “Our clients won’t stand for being represented by a woman.” And someone there suggests she apply for a secretary job.
ET: Then about a year later, she goes looking for a job in the public sector. The district attorney says he can’t pay her. She says, “That’s fine. I’ll work for free.” The DA says there’s no place for her to work in the office. She says, “I’ll work at the secretary’s desk.” And she’s so good, of course, that before too long he is paying her something.
OT: What’s so funny is that many, many years later, when she is on the Supreme Court, she gets a call from Ted Olson, who had been a partner at Gibson Dunn. He wants her to come speak at the firm’s 90th anniversary celebration. But before she’ll accept, she asks him how many female lawyers they had at the firm.
CK: How many were there?
OT: There were enough that she was happy to come speak.
ET: And you can be damn sure they started hiring more women after that.
CK: Justice O’Connor and her husband, John, had a marriage that was pretty far ahead of its time. He put his career on hold for her, leaving his firm in Phoenix to come to Washington. How did John feel about taking a back seat, professionally?
OT: John knew how smart she was. They’d been in school together; he’d worked shoulder-to-shoulder with her. He knew what a raw deal she’d gotten for the first many years of their professional lives. He not only encouraged her to join the Supreme Court but also did everything he could, with his own contacts, to help her nomination along.
ET: He was ambitious for her.
CK: How did Justice O’Connor feel about their relationship dynamic?
ET: When she left the court to take care of him — John was suffering from severe Alzheimer’s — she said, “He sacrificed for me, now I’m going to sacrifice for him.” I do think she felt some sense of obligation. I remember sitting with her in her nursing home, and she said: “It was not easy, being the husband of me.”
OT: When his practice in D.C. wasn’t successful, after she started on the Supreme Court, I think they were both disappointed.
ET: But Sandra was good at making him feel good. She made sure they went out a lot. That’s partly because she liked going out, she liked going dancing, but she told me it was also for him. At a dinner party, she would be quiet and consciously let him be the “social lion.” She would say, “Oh John, tell us that joke.” She was very old-fashioned in that way: The woman enabling the man to be a social lion. But it worked for their marriage.
CK: One of the most poignant moments in your book, for me, came at the tail-end of their relationship, when Sandra is visiting John in a nursing home, and he can’t remember who she is. What was that like for her?
ET: One day she comes into the nursing home and finds him holding hands with this other woman from the home, Kaye. And so she sits down and holds his other hand. Publicly she said (and it was true), “John had been depressed, and now he is happy.” But privately of course her heart was broken.
OT: He didn’t recognize her. ... He didn’t know she was his wife. She is looking at the man that she adores and loves, who has been with her and beside her for decades, and he is looking back at her, not knowing who she is. How heartbreaking is that?
But she didn’t go into a shell. She just kept asking: “What can I do with the rest of my life? How can I be helpful for others?”
CK: In 2000, Justice O’Connor famously ruled for President George W. Bush in Bush v. Gore, ultimately giving Bush the election. Why did she make that decision?
ET: She’s a Republican, but I don’t think she was partisan here. I think she hates messes. And she could see that, if the recount went on, it was likely to wind back up in Congress. Bush was going to win anyway. But it was going to take weeks. So she decided that the court should grab the bull by the horns, and decide.
CK: She took a lot of flak for that decision — more than any of her colleagues on the court. Why?
ET: First, she was the swing vote. You kind of knew what Scalia and [Chief Justice William] Rehnquist and all those guys were going to do. But she had been on the liberal side on abortion and affirmative action. So she was a disappointment to liberals.
There was also the issue that, on election night, her husband was quoted saying he was disappointed when it started to look like [Al] Gore was going to win. Because they wanted to retire, and they couldn’t retire if Gore won, only if Bush won. The irony is that it had the exact opposite effect: Having voted with the majority to, in effect, elect Bush, O’Connor told her family, “We can’t retire now."
CK: Justice Ginsburg has this famous nickname: “Notorious R.B.G.” If you could give Justice O’Connor a nickname, what would it be?
OT: We call her SOC around here.
ET: That’s because she signed her internal memos, “SOC.”
CK: It kind of sounds like the nickname for Congresswoman Alexandria Ocasio-Cortez, “AOC.”
ET: That’s right. Long before AOC, there was SOC.