Learning from Justice O’Connor

We all owe Justice Sandra Day O’Connor an enormous debt of gratitude for her service to our country. An extraordinary trailblazer, she devoted her intelligence and boundless energy to our nation for decades. As majority leader of the Arizona Senate, to state trial and appellate judge, to first woman on the US Supreme Court, there seemed to be nothing she couldn’t do.

I was honored to serve as one of her law clerks, and I am grateful for five insights I will always cherish from that experience.

First, Justice O’Connor genuinely welcomed a diversity of viewpoints on the many difficult legal issues facing the Court. She felt she would make better decisions if she considered opposing views thoroughly and fairly.

For nearly a quarter century, Justice O’Connor found herself at the center of a Supreme Court deeply divided on cases involving abortion, religion, affirmative action, the death penalty, and federalism. Often casting the deciding vote, the Justice did not seek out this role — indeed, she hated the expression “swing vote” with its implication that she was just swaying back and forth. Instead, she brought genuine modesty about the judicial role and authentic openness to contending arguments, preparing meticulously for each case.

To assist her in this effort, she deliberately chose law clerks of differing backgrounds and viewpoints — and she encouraged each of us to speak our minds as we gathered to discuss the cases before each week of argument. As one of her more liberal clerks, I felt that she truly listened and welcomed my analysis, and she encouraged all of us to speak up forthrightly and to disagree – strongly but respectfully.

Second, Justice O’Connor had a deep concern for the practical impact of Supreme Court decisions. She cared about “justice on the ground,” not just in the abstract.

O’Connor was generally distrustful of rigid bright-line rules that claimed to provide definitive guidance. She preferred to decide cases narrowly with careful attention to their specific facts and context. Her approach was one of “principled incrementalism.” While guided by core principles, she sought to take fair account of the countervailing values underlying hard constitutional decisions, and to be attuned to how the law works in practice.

A good example is O’Connor’s Establishment Clause jurisprudence, sensitive to the impact of government endorsement of religion or specific beliefs on our civic life: “Endorsement,” she wrote, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Justice O’Connor also worried about the enormous risks of uncontrolled money in politics. She was critical of the Court’s Citizens United decision and prescient about its implications.

Third, Justice O’Connor understood first-hand many of the barriers women face in achieving full equality and the constitutional importance of protecting women’s equality and liberty to make fundamental life decisions.

She affirmed a woman’s constitutional right to choose whether to end or continue a pregnancy, fully aware of the complex issues, strong beliefs, and countervailing arguments. She did not provide a fifth vote to overrule Roe. Instead, with Justices Kennedy and Souter, she co-authored the 1992 joint opinion in Casey affirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability” and it must include “exceptions for pregnancies which endanger the woman’s life or health” in any post-viability restrictions.

Justice O’Connor understood at her core what was at stake for women in affirming their constitutionally protected liberty to ultimately make this intimate, deeply personal decision guided by their own values, beliefs, conscience, and circumstances, not dictated by the state.

Fourth, Justice O’Connor respected and encouraged public service, which she understood broadly to include many different paths. While she especially valued government service at all levels, she also appreciated education as a vital form of service.

She developed “iCivics”, an interactive on-line education program to ensure that young people appreciate the importance of an independent judiciary in our constitutional system. She traveled widely, giving generously of her time to meet with students and civic groups and with judges around the world, to help strengthen the rule of law.

Fifth, Justice O’Connor lived a well-balanced life, and she wanted the same for her clerks and our families. Deeply supportive, she was always interested in our children – whom she fondly called her “grand clerks.”

Few of us have her unbelievable energy, but we all experienced her encouragement to exercise, enjoy the great outdoors, and nurture our families while pursuing meaningful careers that contribute to the public good. Whether beating us at “nerf pong” in her chambers — or corralling us to museums, parks, or aerobics classes when we had overwhelming amounts of work to do — she always looked for ways to help us balance work with some fun.

Justice O’Connor was not perfect, nor perfectly consistent. None of us are. But she leaves us with a lot to think about. At a time of intense differences over the Court’s role, we have much to learn from this strong woman who considered opposing points of view with civility and respect, who cared deeply about the impact of the Court’s rulings on the fabric of our common civic life, and who was generally inclined to decide cases narrowly with humility and moderation.

She blazed an amazing trail and left a remarkable legacy, both on and off the bench. The wisdom, balance, and fair-mindedness she brought to her role as Supreme Court Justice and as a civic leader – along with her zest and forthrightness — will be sorely missed.

 Jane Stromseth is Francis Cabell Brown Professor of International Law at Georgetown University and served as a law clerk to Justice O’Connor.