The Power Broker

By MICHAEL D. LEMONICK, Viveca Novak

She will be remembered as perhaps the most powerful Supreme Court Justice in recent history. But to her clerks, Sandra Day O'Connor was most memorable for her thoughtfulness and utter lack of pretension. She wore a T shirt, for example, that proclaimed I'M SANDRA, NOT RUTH, to poke fun at advocates who would confuse the court's two female Justices. She attended her clerks' birthdays and weddings whenever she could; at one, she asked the groom's father for a ride. The car was packed, but when he tried to make her take the front seat, she insisted it go to his wife and happily squeezed into the middle in back. Each spring, she took the clerks to see Washington's celebrated cherry blossoms, and when it was cold and rainy one year, she took them anyway. "We had a picnic out in the rain," says former clerk Anup Malani. She's like a cowgirl ... just doesn't care about things like weather."

In a town that worships political power and protocol--especially at the high levels at which O'Connor has been operating for the past 24 years--the Arizona ranch girl, who grew up dreaming not of being the first woman to serve on the U.S. Supreme Court but of running cattle as her father and grandfather had before her, has refused to be indulged. She is unassuming, doesn't take herself too seriously (in 2002 O'Connor was inducted into the National Cowgirl Hall of Fame) and never lost the sensibility she nurtured under those limitless Arizona skies. She often drew from author Wallace Stegner to describe her feelings for the West: "There is something about exposure to that big country that not only tells an individual how small he is, but steadily tells him who he is," he wrote.

That down-to-earth quality meant that O'Connor's opinions tended to be narrower and more case specific than those of her fellow Justices, her reasoning less sweeping and ideological. "She was the court's leading minimalist," says Cass Sunstein, a professor of constitutional law at the University of Chicago Law School, "taking one case at a time, distrusting broad rules and abstract theories."

But while a minimalist might be expected to leave a legacy that would rank with those of the lesser lights in the court's history, O'Connor's impact was far greater in part because she could join either the more liberal or the more conservative side of a divided court, depending on the case. Her caution and sense of specificity made her the deciding voter on the nation's most highly charged social issues, such as abortion and affirmative action. Over the past decade, according to Goldstein & Howe, a Washington law firm, she voted with the majority in more than three-fourths of court rulings that were decided 5-4. Her vote has tipped the scales so often, wrote Jeffrey Rosen in a 2001 New York Times Magazine article, that "we are all living now in Sandra Day O'Connor's America."

O'Connor's independent and pragmatic idea of what America should be was forged in stages. The first took place on the Lazy B, a nearly 200,000-acre cattle ranch in the high desert on the Arizona--New Mexico border. The nearest town was 35 miles away, and the three Day children--Sandra, Ann and Alan--learned early that self-reliance was a necessary survival skill. When rain occasionally wet the arid land, she wrote in Lazy B, a 2002 memoir that she co-authored with Alan, "We were saved again--saved from the ever present threat of drought, of starving cattle, of anxious creditors. We would survive a while longer." Self-reliance was also a political value: her father Harry was a staunch opponent of Franklin Roosevelt and the New Deal. And it was a reason to respect knowledge: O'Connor's mother Ada Mae, a college graduate, would read to her from the New Yorker and the Wall Street Journal, and when Sandra was 5 years old she went to El Paso, Texas, where she lived with her grandmother and went to Radford, a private girls' school.

O'Connor graduated from high school at 16 and went off to Stanford University, where she fell in love with the law--and then, at Stanford Law School, with John O'Connor, a fellow law-review editor a year behind her. They married while he was still in school, but when she tried to get a job, no law firm would hire her, except as a secretary, although she had finished third in her class--two spots below classmate William Rehnquist. She eventually got a job in the San Mateo, Calif., county attorney's office by offering to start out working for free. Years later, she expressed the view that being the court's first woman didn't make much difference on its rulings. "A wise old woman and a wise old man are going to reach the same decision," she was fond of repeating.

O'Connor worked for the Army after John was drafted and posted to Germany, and when the couple returned to Arizona, set up a private practice. She took five years off to have her three sons, then went back to work as an assistant state attorney general. At the same time, she became active in Republican Party politics, in time becoming the first woman in U.S. history to be elected majority leader of the state senate. When President Ronald Reagan was looking for a woman to name to the Supreme Court, O'Connor was one of the few with judicial and conservative Republican credentials. So despite vocal opposition during her confirmation hearings from abortion foes, who protested her opposition to Arizona laws that would have banned state funding of the procedure for poor women and that would have prohibited it at the University of Arizona hospital, she was confirmed unanimously.

It didn't take long before O'Connor began confounding ideologues on the left and the right and bringing her considerable intellect to bear on the questions before her. She didn't just cast the final verdict--she helped shape important new law. For instance, it was O'Connor as much as Rehnquist, says University of Virginia law professor A.E. Dick Howard, who revived the doctrine of states' rights. The current court has knocked down more federal laws and upheld state sovereignty more often than any other in history, invalidating among other statutes a law that banned guns in school zones, part of the Violence Against Women Act and part of the Brady gun-control law. Conservatives have cheered this as a virtual revolution--although O'Connor, in keeping with her trademark case-by-case approach, has departed from an absolutist position at times. She was on the side of the plaintiff in Tennessee v. Lane, a 2004 decision upholding part of the Americans with Disabilities Act and requiring courtrooms to be accessible to those with physical disabilities. And most famously, she voted in 2000 to step into Florida's disputed presidential balloting and stop the recount, giving the election to George W. Bush. But she also wrote a scathing dissent in this term's medical-marijuana case, in which a majority of the Justices said that federal antidrug laws trump state efforts to let doctors prescribe marijuana.

Abortion has been another key part of O'Connor's legacy--and another way to understand her careful navigation as an interpreter of the Constitution. In an important 1983 test of the limits of Roe v. Wade, for example, she voted to support an Ohio law requiring a 24-hour waiting period for women who want to have abortions. In her minority opinion, she pleased conservatives by writing that Roe as written was on shaky ground. But she didn't say it should be overturned. In a 1989 case she explicitly rejected an attempt to overturn Roe, but said restrictions on abortion were fine as long as they didn't place an undue burden on the right to choice. And most important, in 1992, that "undue burden" test became the court's yardstick for measuring abortion restrictions in the majority opinion O'Connor co-authored. Though it weakened Roe's standard for analyzing limitations on first-trimester abortions, Roe still stands.

O'Connor's history on abortion is a perfect example of the minimalism to which Sunstein refers: Don't throw the precedent out entirely; don't endorse it uncritically, but define the circumstances where it applies. In finely tuned opinions for religion cases, O'Connor measured whether government support of, say, school prayer or vouchers amounted to an unconstitutional "endorsement" of religion. The Pledge of Allegiance's "under God" phrase passed her test; displaying the Ten Commandments on public property did not. That kind of approach is also evident in her handling of affirmative action. O'Connor was as allergic to quotas as any true conservative, but she found it acceptable for government to consider race as one of many factors in making decisions. In the late 1980s she wrote an opinion striking down a law in Richmond, Va., that tried to boost the minuscule percentage of city contracts going to minority-owned firms. And in the '90s, O'Connor voted against redrawing the lines of congressional districts to benefit minorities. But she was also the Justice who cast the fifth and deciding vote in a 2003 decision upholding the right of the University of Michigan's law-school-admissions policy to consider race as a factor.

Meanwhile, her awareness of real-world politics and her sense that the court shouldn't diverge too sharply from popular opinion were especially apparent in O'Connor's death-penalty votes. In 1989 she wrote the majority opinion allowing capital punishment of the mentally retarded, saying a "national consensus" that the practice was wrong had not yet formed. But by 2002 she was convinced things had changed and voted with the majority to end it. It was just the kind of switch that made the court's more doctrinaire conservatives nuts: "Seldom has an opinion of this court rested so obviously upon nothing but the personal views of its members," Associate Justice Antonin Scalia sniffed in a dissent. This year, though, O'Connor didn't join the majority of the court in putting an end to the death penalty for juveniles, again citing the national consensus rationale.

O'Connor's aversion to drawing bright lines in Supreme Court decisions made her vulnerable to the argument that she forced constant changes in the law and guaranteed that nothing would ever be settled. "You had to go back to the court every time you wanted to change public policy," says John Yoo, a former Deputy Attorney General under the current President Bush and now a law professor at the University of California, Berkeley. Instead of setting out broad principles that determined cases once and for all--and thus allowing Congress and state legislatures to move on--the incremental approach adopted by O'Connor forced litigants and legislative bodies to constantly go back to the court for their next set of orders. Yoo argues that made the high court a de facto chief administrator. "It sucked [decisions] away from the political process," he says. "And that has the effect of concentrating power in the Supreme Court."

But for all the heartbreak O'Connor caused on both sides of the ideological divide, she left court watchers impressed with her energy and self-discipline. The year George Mason University law professor Nelson Lund clerked for O'Connor, she underwent an operation for breast cancer. "The day after surgery," he recalls, "she called me from the hospital to talk about cases." She didn't miss hearing a single oral argument, although chemotherapy left her looking worn and exhausted.

O'Connor, an avid golfer and tennis player, also started an aerobics class for clerks and staff members in the Supreme Court's basketball court, which is one floor up from where the Justices hear arguments (the clerks refer to it as "the highest court in the land"). She also started an early-morning yoga class.

During especially intense periods on the court, when clerks worked all weekend, O'Connor was right there with them. She brought food she had cooked to help sustain her team as it worked round the clock. Says a former clerk: "I don't think too many of the others were doing that." O'Connor also was known for keeping everyone up to date on news of her grandchildren. "Oh, we'd hear about them all the time," a former staff member says with a laugh. "She loves those grandkids."

Now O'Connor will have much more time to spend with them, and with her ailing husband--and from her clerks' point of view, stepping down from her position of power to take care of her family won't require enormous adjustment in some ways. "She's like your best friend's grandmother," says former clerk Anup Malani, now an associate professor at the University of Virginia School of Law. "So nice, and she makes you feel comfortable." It was a generous touch in someone who had the power to change the law of the land. --With reporting by Maggie Sieger/ Chicago, Kristina Dell/New York, Douglas Waller/ Washington and David Schwartz/Phoenix

With reporting by Maggie Sieger/Chicago, Kristina Dell/New York, Douglas Waller/ Washington, David Schwartz/Phoenix