APRIL 1, 2019
ONCE UPON A TIME, mythic figures roamed the halls of power. They supported reasonable government regulation, respected the separation of powers, and endorsed incremental reforms to make society more just.
Now extinct, they were called “moderate Republicans.”
Sandra Day O’Connor was their patron saint.
First, Evan Thomas’s biography of O’Connor, reminds us how little time has passed — and how much the nation lost — since O’Connor retired in 2006.
President Ronald Reagan’s first appointment to the Court, and its first woman, O’Connor achieved unprecedented status, influence, and popularity. Beginning her tenure as a moderate centrist, she became an unreliable member of the conservative majority, voting to protect free speech, the right to abortion, civil liberties in time of war, and to maintain the separation between the branches of government and between church and state.
“O’Connor did not regard herself as a revolutionary,” Thomas writes. “Her success was owed in no small part to her ability to marry ambition with restraint. […] She saw herself as a bridge between an era where women were protected and submissive to an era of true equality between the sexes.”
Perennially voted the United States’s most respected women in public opinion polls, she remains a hero to men and women, most of whom probably can’t name one of her opinions. They loved her candor and bravery, one of the first public figures to discuss battling breast cancer, the first to speak in-depth about her experiences providing care for her husband when he was stricken with Alzheimer’s, and most recently, one of the first to announce her own early on-set dementia. What made O’Connor a great justice was what would ordinarily make for a great political or military leader: charisma and character rather than an all-embracing judicial philosophy.
“There was,” Thomas writes, “an O’Connor code of conduct, a right way of carrying yourself and dealing with others […] Thank-you notes were to written on time. Civility, not snark, was the currency of discourse. Extremism of any kind was to be avoided. Absolutism was for demagogues.”
Thomas argues that she was a product of place as much as time. Growing up on the Lazy B ranch, a self-reliant Westerner, she believed that anything a man could do, she could do better. Part Annie Oakley, part Puccini’s Girl of the Golden West, Thomas’s O’Connor is a romantic hero of the past and an encouraging example for the future.
She wasn’t so much a conservative as she was a Westerner. Here in the West, where the individual’s destiny remains manifest, reinvention is not just possible but necessary. In this climate of extremes in climate, vastness, and inequality, to survive, one must adapt.
No one adapted better than O’Connor. When no law firm would hire her after law school, she started her own firm. When her babysitter quit, she chose to give up her job in order to stay home and take care of her family. She also managed to become the head of the Junior League of Phoenix, then a State Senator, then the first woman ever elected Majority Leader of a state legislative body’s upper house. Switching to the bench, she again remade herself, this time into a stellar judge and later Justice.
Critics on the left dismissed her as a country club Republican; Barry Goldwater in a dress, Arizona co-chair of the Richard Nixon Re-Election Campaign.
Critics on the right derided her as a politician rather than a judge. Rather than rigorous legal thinking, they accused her of feeling “her way to crowd-pleasing outcomes.” Sensitive to such criticism, she never let it alter her course.
Like other Western heroes, O’Connor always seemed a bit too good to be true. Her childhood sounds like the plot of a Louis L’Amour novel or Walt Disney live-action film. A bookish cowgirl, she could rope, ride, and castrate bulls with the best of them. A star student, she went through Stanford in six years, getting her undergraduate and law degrees, and four formal marriage proposals. One of these proposals came from William Rehnquist, her future colleague on the Supreme Court; indeed, of all of O’Connor’s erstwhile suitors, the Chief Justice appears to have carried a torch for her the longest.
That Thomas seems to have fallen a bit in love with his subject is not surprising. In 2013, O’Connor and I made a film together about the importance of an independent judiciary (it won an Emmy Award). My admiration for her led me to write a play, Sisters in Law, based on the nonfiction book of the same name, about her and Ruth Bader Ginsburg (it premieres in Phoenix in April, then plays in Los Angeles in September). Like Thomas, I would never be so presumptuous to say I knew O’Connor well. Despite her openness and warmth, a large part of O’Connor remained elusive, unknowable, perhaps even to herself.
To his credit, Thomas does not shy away from the messier parts of O’Connor’s character. A kind, supportive boss, she could be abrupt, critical, and even unintentionally make her clerks cry. A victim of gender discrimination who wanted to give women equality of opportunity, she “did not want to be seen as either a ‘new feminist’ or the Supreme Court’s mother.” An avowed purist who worked hard to keep politics out of the selection of judges, she rooted for George W. Bush to beat Al Gore, and then voted in Bush v. Gore to make sure Bush won.
She did not lie. But she wasn’t above telling sanitized versions of the truth; pretending she never had a chance to be nominated to the Court, forgetting uncomfortable votes on abortion and labor issues as Arizona State Majority Leader. “O’Connor did not like show-offs, but she did want to be a role model, which required — as she forthrightly acknowledged — a certain amount of showing off.” “The trick,” Thomas writes, “was to do so modestly and humbly. O’Connor wanted to tell her story, but on her own, carefully modulated terms.”
Her contradictions only made her more human. Confident as she appeared, she was sometimes fraught with self-doubt. In a letter from Palo Alto to her parents after a bad romantic breakup, O’Connor describes herself as “nothing but a girl law student — and believe me, it is my greatest liability, and I do wish I had never begun it.” Or in this entry in her personal journal describing her first oral argument on the high court. “Shall I ask my first question? I know the press is waiting — All are poised to hear me.” When she tried, the lawyer arguing his case talked over her. “He is loud and harsh and says he wants to finish what he is saying. I feel ‘put down.’”
O’Connor’s complexities are on vivid display in her polite but hardly warm relationship with Ginsburg. They were not close and did not socialize. As O’Connor told a clerk, “she was glad to have another woman because then the press could stop commenting on her clothes when she went out at night.”
Perhaps it was inevitable. There were never two women on the Court, never two more powerful woman, and possibly never two greater opposites: the sunny Westerner versus the intellectual Easterner, the extrovert politician versus the academic introvert, conservative versus liberal, Christian versus Jew, the blonde versus the brunette. The trouble with clichés is that they often contain so much truth. Not for nothing was Ginsburg known as the “Mother of the Feminist Movement,” architect of the ACLU’s legal strategy that established the concept of gender discrimination itself. O’Connor was never a purist on any issue, preferring instead to find compromise where she could, slowly but surely seeding the ground for those to come. Though they shared a faith in the rule of law, the deeper one looks at what bound them together, the more fundamental the differences appear.
By the end of Thomas’s book, one cannot but feel grateful to O’Connor. Superb as other women might have been as the First, none possessed her essential political ability, moderate tendencies, or unshakable belief in incremental changes to the law. It is hard to imagine that any other woman could have captured the same amount of public affection or respect.
If O’Connor had not existed, no modern fiction writer would have the temerity to create her. It would take a writer expert in foundational narrative, universal antecedents; Edith Hamilton, perhaps, chronicler of Greek and Roman mythology, or Joseph Campbell, comparative historiographer of the hero as the central narrative figure.
Fittingly, law itself probably offers the best description of O’Connor: sui genesis, meaning something without precedent unique to itself. Like Jackie Robinson, her guts, restraint, smarts, and ability to play the game made her the best person for the job.
At a moment when nothing seems deader than our recent past, Thomas does a service by introducing O’Connor to a new generation. She is Exhibit Number One in support of the Great Woman theory of history; the Chosen One, seemingly destined to blaze a trail through the male-dominated badlands of 20th-century politics and law.
First delivers the timely message that what the world needs now isn’t love, necessarily. It’s O’Connor’s gift for consensus building, her faith in the power of civil discourse, and her trust in Americans’ ability to get along. That she now seems such a distant figure — a Founding Mother representing 18th-century Enlightenment ideas — only emphasizes how far our nation’s leaders have fallen away from fundamental norms and national principles.
Deeply researched, benefiting from unprecedented cooperation from the O’Connor family, and richly entertaining, First is the happy product of that rare publishing phenomenon: the marriage of a historically significant subject with a mature, gifted, and empathetic writer. If the result is not the definitive work on the subject, it is as intimate a look into O’Connor as we may ever get. Like many of O’Connor’s closest friends and confidants, Thomas concedes he was not fully able to pierce the hard shell of his subject’s reserve. Perhaps like the West itself, O’Connor is simply too big to for anyone to capture in one book.
Former federal prosecutor Jonathan Shapiro teaches at UCLA Law School. Co-creator with David E. Kelley of the Amazon Prime show Goliath, he is a writer on NBC’s The Blacklist, Direct TV’s Mr. Mercedes, and the upcoming HBO series The Undoing. His first play, Sisters in Law, about the relationship between Sandra Day O’Connor and Ruth Bader Ginsburg, premieres in Phoenix, Arizona, in April, 2019 and will be produced in Los Angeles, in September.