Sisters in Law

by Linda Hirshman

  But she was always a fast learner. She was also possessed of an almost perfect photographic memory, hugely useful for both her role model duties and for the mountains of paperwork in her job. One day, she got on an elevator with the Arizona lawyer Mary Schroeder, the power went out, and all the buttons went dark. When it came back on, Justice O’Connor remembered perfectly which floor everyone in the crowded elevator had chosen.

  For the most part, in those early days, she tried her best to sidestep the problem of women entirely. When she started giving speeches, she tried to position herself simply as an authoritative voice to speak about the administration of justice. She went to her alma mater, Stanford, and gave a talk, “What Individuals Can Do to Improve the Courts.” She opened the new Vanderbilt Law Library with the talk “Professional Competence and Social Responsibility.” These exhortations to individual virtue, like volunteering, satisfy the Rathbun-like injunction to improve the world without actually upsetting the existing social order in service of a better world. Like O’Connor’s narrow, fact-based opinions, her vision is benign, but threatens little large-scale change.

  When a person wields the critical fifth vote at the level of the Supreme Court, however, disproportionate social consequences often ensue, something that the theorists on the Court, right and left, all understood. Regardless of Justice O’Connor’s narrow, problem-solving methodology, it was not a big step from the order admitting a man to study nursing to massive partying in coed off-campus apartments at the former women’s university. Similarly, although the content was not overtly feminist, her mere presence on the powerful Court was a lesson in itself.

  She quickly developed a way of talking about social change without threatening the establishment. It was an exquisite balance. Celebrating the seventy-fifth anniversary of the New England School of Law, which started as a law school for women (Portia Law School!), she said the law school “has continued to demonstrate an admirable sensitivity to those groups underrepresented in the legal profession… . Over the next twenty-five years there is no doubt that courtroom benches, law facilities, and law firm partnerships will reflect the increased percentage of women and other minority groups who are now being admitted to practice.” All the rest of her presentation is about the gender-neutral subject of a law school’s responsibility to train its students in “ethical responsibility” and “practical competence.”

  Arriving at Fordham Law School in New York to dedicate its new building, she again opened her remarks with an homage to the role of women: “I think I should acknowledge and thank in part for my invitation Fordham’s Rector in 1918. That year the faculty faced the issue of women’s rights. The minutes of a May 1918 faculty meeting note that shortly before the close of the meeting, the Rector ‘asked for a discussion of the advisability of matriculating women in the Law School.’ After listening to the opinion of the various faculty members he announced that he would take the ‘matter under advisement’ and notify the faculty of his decision.” A postscript to the minutes adds: “In a letter from the Rev. Rector … under the date of July 6, 1918, he writes, ‘it has been decided that, owing to objections raised against it, women will not be admitted to classes of the Law School this Fall.’” The minutes, however, contain a terse unexplained amendment, O’Connor continues: “In September 1918 the Rev. Rector authorized the matriculation of women and ordered the insertion of this fact to be put in the newspapers.”

  And then she delivered the punch:

  “I like to think that your former Rector not only helped advance the cause of women in the law, but that he would have been pleased that a woman was invited to give remarks today.”

  The rest of the speech was the usual gender-neutral call to public service. That a woman was invited to give remarks was sufficient; in O’Connor’s case, the medium was the message.

  O’CONNOR’S ABORTION ANALYSIS ON A COLLISION COURSE WITH ITSELF

  O’Connor’s pleasantly symbolic feminist honeymoon cruise was about to hit the shoals of abortion, the issue that would not die. The Catholic Church had been fighting the liberalization of abortion laws since the 1960s. In 1967, the National Conference of Catholic Bishops had founded a national Right to Life Committee to resist the movement to reform, and the Church was starting to have some success when Roe came down. Bill Cox, assistant director of the Missouri Catholic Conference, knew that the Catholic Church alone could not undo what the Court had done. The Protestant clergy in Missouri had been essentially silent in the days after Roe.

  At the instance of the MCC staff the Missouri bishops approved the formation of a secular prolife group to be called Missouri Citizens for Life (MCL). Cox began crisscrossing the state, setting up MCL chapters and soliciting help from non-Catholics. MCL started at the Catholic Conference office, but, like the anti-abortion movement in general, it soon moved to an independent identity, Missouri Right to Life, which formed a political action committee and began to endorse prolife candidates for election.

  Within a year of the Roe decision, Missouri passed its first post-Roe anti-abortion law, which allowed doctors, nurses, and hospitals to refuse to perform an abortion when it violated their moral, ethical, or religious beliefs. In 1974, Missouri passed a bill requiring informed consent by the woman considering an abortion, her spouse if married, and the consent of the parents of an unmarried minor under the age of eighteen. It also banned abortions performed after twelve weeks of pregnancy that involved the injection of a saline solution into the mother’s womb.

  Early on, the resistance to liberalized abortion transcended the Catholic origins. The 1972 presidential campaign of the Protestant Richard Nixon embraced abortion opposition as a way to attract Catholic Democrats. Although the first Missouri law was introduced by a Catholic legislator, Missouri Right to Life proudly presented the self-identified “Episcopalian” Thomas Eagleton to the public in a massive anti-abortion rally in 1973. As the ’70s passed, the Republican Party gradually framed resistance to abortion rights as part of its resistance to cultural and sexual liberation in general. Although the Supreme Court struck down the ambitiously anti-abortion Missouri law, the movement would keep passing laws, looking for holes in the Roe decision and for any legal method to restrict abortion. Thanks in part to Cox and his colleagues’ efforts, Missouri would be what scholars later called a “challenger” state. And sooner or later those challenges were going to come before the Supreme Court with the first women on it.

  No one was more aware of the challenge than Roe’s author, Harry Blackmun.

  Blackmun really did not like his new colleague. Even before an actual female justice had emerged as a possibility in 1981, the so-called emancipator of women had pettishly argued against the Court dropping the traditional “Mr. Justice” salutation. Justice Stevens had attended a moot court session at Notre Dame alongside the well-respected appeals court judge Cornelia Kennedy. After one of the winning all-female team had addressed her as Madame Justice for the umpteenth time, Kennedy laid it out. “A simple Justice will do,” she explained. Justice is an honorable-enough title! In anticipation of a Miss or Mrs. (or Ms.) coming on board at some point, Justice Stevens brought the story to his colleague Potter Stewart, who proposed the change. The Court made it regardless of Blackmun’s resistance. Once O’Conner got there the shy, perfectionist, self-deprecating Minnesotan found his outgoing, relentlessly sociable, supremely self-confident colleague altogether too much to take.

  Blackmun’s behavior was unattractive, but neither gender nor personality was at the heart of his problem with O’Connor. His problem was abortion. As the political pressure to roll back abortion rights rose, the dwindling majority on the Court for Blackmun’s signature achievement, Roe v. Wade, already had him nervous. President Ronald Reagan presented him with a colleague who told the Senate she found abortion personally “repugnant.”

  The pace of challenges to abortion rights guaranteed that he’d get to take her measure on his issue soon enough. Driven by people like Missouri’s Bill Co
x and his organization, states and localities had produced an almost endless stream of regulations to make getting the procedure as hard as possible. In 1982, just a year after O’Connor joined the Court, the justices gathered several cases—from Cox’s Missouri, as well as Ohio and Virginia—to set out some standards for what restrictions, if any, they would allow. The states and cities before the Court had demanded that doctors tell women that all pregnancies are “human life” from the beginning and recite a list of dire consequences abortion might produce. They imposed a hospital requirement on abortions after three months and required minors to inform their parents of their plans. Following Roe, the appeals courts had duly struck the restrictions down. Justice O’Connor joined her conservative brethren on the court to take the cases for review, under the title Akron v. Akron Center for Reproductive Health. It was the first signal she sent out.

  When the dust settled in the Akron case, Roe emerged unscathed. Justice Powell wrote a strong opinion for the majority of six, forbidding states from making abortion harder to come by simply because they didn’t want women to get abortions at all. Abortion is a fundamental right, he wrote, and as such may be limited only by a compelling state interest, usually in maternal health.

  O’Connor disagreed and wrote a dissent. She admitted that the Court had said the Constitution applies to this so-called right:

  “In Roe v. Wade … the Court held that the right of privacy … founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

  As in her confirmation proceedings, she refused to say what she would have done if she’d been sitting on the Court in 1973. The parties did not ask for the nuclear option, overruling Roe, she notes, and so the Court would not reexamine the decision. But for the new justice even to recognize that possibility a mere decade after the decision was chilling to Blackmun and the pro-abortion forces.

  However, she continued, had she been there, she sure would have done a better job than Harry Blackmun. Blackmun’s opinion in Roe had extended constitutional protection to choosing abortion according to how far along the pregnancy was. In the first trimester, when abortion is safer than pregnancy, the right to abortion was absolute. Then, up to the point where the fetus can live outside the womb (viability), the state may only impose limitations designed to serve the mother’s health. Thereafter the state may still prohibit abortions, unless the prohibition endangers the mother’s health. The woman’s health is primary throughout and is the exclusive interest until the fetus can live outside the womb.

  “[I]t is apparent from the Court’s opinion,” O’Connor believed, “that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the “stages” of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs.” The standard, O’Connor speculated, was on a collision course with itself. In her scientific understanding, doctors would get better and better at preserving the fetus outside the womb, rolling back the cutoff for viability. Abortion would get safer and safer, pushing the untouchable first trimester further and further forward. “Unworkable,” “illegitimate,” “unjustifiable in law or logic”—only the timely intervention from one of Blackmun’s clerks to his counterpart with O’Connor prevented her from calling Blackmun’s framework “unprincipled” in her dissenting opinion.

  Justice O’Connor then set out her version of an abortion decision. Contrary to Blackmun’s opinion in Roe, O’Connor believed that the state had an interest not just in the mother’s health, but in the fetus from conception. So the government can do anything it wants at any time as long as it does not place an “undue burden” on the woman’s decision to terminate. No connection to women’s health is required. In this first effort since her appointment, O’Connor served notice that, as an example of the proposed standard, she would uphold every one of the city of Akron’s restrictions on women’s choice.

  Although she is later credited for devising the undue-burden standard for abortion rights, it was not her idea. During the twelve years of Republican administrations after the 1980 election, the Justice Department had played the lead role in rolling back abortion rights. O’Connor’s standard comes directly from the Reagan Justice Department’s friend of the court brief in the Akron case. The brief, which stopped just short of telling the Court to overrule Roe v. Wade altogether, was highly controversial. Nine years later, President George H. W. Bush’s administration, in a similar role as friend of the Court, would go all the way and request that Roe be overturned. The confrontation was inevitable: once the Court conceded the state’s nine-month-long interest in the fetus, that interest was on a collision course with women’s interest in obtaining abortions. There was no principled stopping place. There was only the establishment distaste for stories of thalidomide babies and coat hangers: abortion couldn’t be made criminal enough to go back to those bad old days. Just as difficult as possible short of that.

  O’Connor’s proposed revision of Roe was just a dissent in 1983, and she lost the rematch of the same fight in her second abortion case in 1986. The women’s groups, which had been cautiously optimistic, veered sharply away from their first female champion. Unlike Blackmun’s clean, time-related test with restrictions grounded in women’s health, the squishy language of “undue burden” promised—and later delivered—a mare’s nest of increasingly ambitious efforts to cut back on abortion rights.

  A DISH BETTER TAKEN COLD

  But the First Woman was a better friend than women realized, in the angry aftermath of the Akron dissent. In 1983, as she was preparing to embrace the Reagan administration’s very hostile position on abortion, she cheerfully went across town to her first National Conference on Women and the Law at George Washington Law School.

  The conferences had come a long way since their origins as a scruffy gathering of feminist activists in the 1960s. The 1983 conference involved a thousand lawyers, law professors, and students and merited the appearance of a Supreme Court justice. And who should be at the conference but the famed women’s advocate and court of appeals judge, Ruth Bader Ginsburg. Ginsburg, of course, had been going to the conferences since the earliest days, when she toted around her photocopied materials for the Woman and the Law course and exchanged syllabi, all of which she eventually turned into one of the very first casebooks on the subject. Although Ginsburg had never heard of O’Connor when the FWOTSC surfaced as a Supreme Court nominee in 1981, one of Ginsburg’s former clerks, Deborah Merritt, was working as a clerk to Justice Potter Stewart, whom O’Connor would replace. When Stewart retired in the middle of Merritt’s term as clerk, his replacement took Merritt on. So, in O’Connor’s first term, she had a clerk from Ginsburg’s chambers. And, of course, when Sandra’s opinion in the Mississippi University for Women case came out, Marty Ginsburg asked his wife if she had been O’Connor’s ghostwriter. Ginsburg had reason to look forward to making her acquaintance. And there was the new justice, at the fourteenth annual Conference on Women and the Law.

  Unknown to Ginsburg, when she ran into O’Connor at the conference, the Court was about to deliver a sweet victory on the subject of Women and the Law (Firm).

  11

  Women Work for Justice O’Connor

  The Court’s helping hand to women lawyers was sweet, but late. Gibson, Dunn had told Sandra Day O’Connor she could be a secretary in 1952. When Diane Blank and Mary Kelly went to law school in 1968, they surely were not thinking it would take until Justice O’Connor’s third term, sixteen years after they were 1Ls, for the Court to tell firms they could not direct female law students to the steno pool. The young law students had a play-by-the-rules mentality. If they worked hard and did well, the status-conscious and highly bureaucratized proce
ss of law-firm hiring should waft them up to the Nirvana of big-firm life. They would get hired as summer interns after their first year in law school and then as entry-level associates after graduation. The process turned largely on the grades they received and on their performance on the prestigious and select law reviews at their schools. There seemed little room for the kind of covert distaste for women workers that allowed so much discrimination in less structured environments. They did not think that cosmopolitan New York law firms in 1968 would still act a lot like Gibson, Dunn circa 1952.

  FEMALE LAW GRADS SUE PEOPLE

  But at the end of the day, they and a handful of other classmates had to sue the biggest firms in New York to get a chance at the brass ring. In 1971, Blank sued Sullivan and Cromwell, and a woman named Margaret Kohn sued Royall, Koegel and Wells. In 1977, Sullivan and Cromwell settled with Diane Blank, rather than let her look at their statistics on hiring women. It should have been a lesson to the firm. But when Justice O’Connor considered the case of law-firm hiring seven years after Sullivan and Cromwell settled, the number of women partners at Sullivan and Cromwell could still be counted on one … finger. One. Out of seventy-five partners. Women had been pouring out of the law schools since 1970, but somehow they almost never made it across the magic line to partner.