With Powell gone, O’Connor was ready to move into a position of serious influence. Life was good. Energetic and robust as always, she arranged athletic outings for her clerks, where she was often the toughest competitor among a crowd half her age.
A term after Powell retired, Guy Braibant, head of the highest administrative court in France, hosted a visit from American jurists in July. Justice O’Connor led the delegation, which included the appeals court judges Ginsburg, whom she had already met, and Stephen Breyer, from the First Circuit in Boston. It was clear who was top dog. During the trip, Justice O’Connor would describe the “general structure of [the American] court system,” and Judge Ginsburg would comment on her remarks. True to form, on their first day in Paris, the energetic Justice O’Connor arranged a morning walk to the Picasso Museum for the group. In her travel diary, an adorable little volume with a picture of a hot air balloon on the cover, Ginsburg reports, “O’Connor read map, none too well, so it was an hour+, but very pleasant stroll as beautiful day.” It must have been a merry trip; Ginsburg’s diary records flower-filled hotel rooms, gifts of Hermès scarves and medals, champagne and meals (“mussels especially excellent”), including an “elegant lunch” at the Constitutional Court and a duck dinner at Versailles. After dinner at the legendary Paris restaurant Lapérouse, Ginsburg notes, “just say OUI!!”
UNTIL IT’S NOT
But sober news lay in store for O’Connor when she got back. In October 1988, the robust and energetic fifty-eight-year-old justice got the report so many women dread: breast cancer. When she first heard the news in a routine medical exam, she could not believe it. She was in the middle of a very busy term and told her doctors cancer would have to wait while she heard several more rounds of oral argument. The doctors dissented. So her first lesson was “everything had to stop.” Worse, she had “so many decisions to make.” She had always thought the doctors would just tell you what to do. And she did have on her team probably the premier cancer doctor in Washington, Mark Lippman, then the chairman of the department at Georgetown and an internationally renowned breast cancer researcher. Her disease had progressed too far to avoid mastectomy. Indeed, after the surgery, she had to undergo radiation and chemotherapy, the most aggressive treatments. The doctors did not agree on everything, which made it all the more difficult.
In 1994, six years after her diagnosis, she told her story to a breast cancer survivors’ gathering, a speech sent out to the world on TV. Perhaps for the first time, this most decisive of women recalled, she had had trouble making decisions. She remembers even having trouble digesting the information. It was so emotional a time. So she did what she did at the Court. She did as much research as it was possible to do and then she made her decisions. “I don’t look back and I don’t say, ‘Oh, what if I had done another thing?’” And she tried something new, too—relying on other people. “It helped me,” she recalled, “to have a close friend who had been through it,” not once but twice. Indeed, the justice found it “amazing how many people wrote letters” or came up to her to reassure her that they had had it too and that her life would go on. One day, after the surgery, it got so bad that she called her friend at home and asked her to come to the hospital, and “she dropped everything and came down and we shed a tear or two together and we talked about everything and somehow that helped.”
“Depressing” and “traumatic,” as she described it in a letter to Powell, even cancer did not turn the decisive no-nonsense O’Connor into a sensitive New Ager. When the support people at the hospital advised her to “visualize” her recovery, she recalled later, she balked. “I’m not a visual person. I’m a practical person.” So she made a chart on her calendar with all the chemotherapy appointments, and checked them off: “first one, got through it. When does the hair start to fall,” she asked herself. “Second one, check.” She was surprised by how distressing her physical losses were. Again surprised by the kindness of relative strangers, her hairdresser “turned out” to be “one of the kindest most marvelous men” she ever met. And she just sucked it up. When she saw how her condition was distressing her family, she told herself she’d better shape up. “Put a better face on things,” she resolved. “Don’t distress other people.” It’s only cancer.
As she retold it later, the “best thing was” that she “had a job to go to.” Tired and stressed out as she was, “I had a job that was important and was always there for me to do so I just went down to my office and kept working, I never missed a day at the court, I never missed a conference, and I wonder how people who don’t have a job do.”
In 2013, when Justice Ginsburg was asked to speak about her colleague, then long retired from the bench, she singled out O’Connor’s 1994 cancer survivor speech as one of the most important legacies of her tenure. “Her account,” Ginsburg noted, “gave women afflicted with that trying disease hope, the courage to continue, to do as she did.” It is indeed impressive to see the video of Supreme Court justice O’Connor, this most dignified and self-sufficient woman, with a somber mien, her voice perceptibly shaking and eyes occasionally tearing up, telling her story to the survivors. When Marty had cancer all those years ago, legal work had given Justice Ginsburg some security, knowing she could support herself and her baby daughter. When Justice O’Connor was stricken herself, meaningful work gave her purpose, focus, and distraction.
A JOB TO DO
And so she continued to help women have access to that lifeline. On October 31, 1988, five days after she left the hospital, and despite press speculation to the contrary, she sat down to a full day of oral argument.
Ann Hopkins’s challenge to her rejection for partnership at the accounting giant Price Waterhouse was the fourth and final matter of that long, hard first day back. Hopkins, a senior manager and the only female partnership candidate of the forty-plus people in line, had first been held over for a year for reconsideration and then rejected. No one disputed that she had been a very effective manager, landing a huge contract with the State Department in the run-up to her first partnership year. The crucial piece of evidence against Price Waterhouse in a warehouse full of damning admissions came from the man who bore responsibility for explaining to Hopkins the reasons for the decision. In order to improve her chances for partnership after the first delay, he advised, Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” It’s hard to blame this gentleman entirely for the hilariously sexist advice, as he was looking at reports from partners that she was “macho,” she “overcompensated for being a woman,” she should take “a course at charm school,” and she swore a lot. One of her supporters even wrote in a supposedly favorable evaluation that she “ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr [partnership] candidate.”
In previous years, other female candidates for partnership also had been evaluated in sex-based terms. As the trial record reflected, candidates at Price Waterhouse were viewed favorably if “partners believed they maintained their femin[in]ity while becoming effective professional managers.” A partner who could not consider any woman seriously as a partnership candidate even had his vote recorded in the overall summary of the evaluations.
Price Waterhouse did what it could to ameliorate the damage. It contended that Hopkins was rejected because she could not get along with her coworkers. Maybe they said things that looked bad, the firm argued, but they had a completely independent reason for rejecting her, and that should be enough. Again, the Court was confronted with a major social policy matter masquerading as a procedural problem. Firing someone for having a bad attitude does not violate the Civil Rights Act. Firing her for not being feminine enough does. Such disputes are called “mixed motive” cases.
The lower courts had found for Hopkins, ruling that once Hopkins proved the existence of discrimination, the employer had to show “clear and convincing” evidence t
hat it would have fired her anyway, a standard much higher than the normal preponderance of the evidence required for most proof. On appeal, even Hopkins’s lawyer didn’t defend his having required such a powerful showing from the employer. He was just hoping to eke out an opinion that, after the plaintiff showed the employer behaving badly, the employer had to do something to justify its conduct. Price Waterhouse, of course, was seeking a ruling that the plaintiff had to prove not just discrimination but that the decision would have been different if the employer had not discriminated. It was a very important “procedural” decision. Employers almost always present some alternative reason for firing someone. So who has the burden of proving which motive actually generated the rejection is game, set, and match in discrimination litigation.
From where Hopkins sat, “Justice O’Connor’s eyes stared through deep grey rings on a ghostly white, stoically expressionless face. In spite of a mastectomy ten days earlier, she was on the bench.” Not only on the bench, but, three minutes into the accounting firm’s argument, she was asking its lawyer, Kathryn Oberly, the crucial question. When there’s evidence for both sides, who owns the tie? The employer’s lawyer invoked a classic procedural answer: the person who brings the lawsuit always bears the burden of proving her case. At equipoise, the defendant wins. O’Connor jumped in immediately. If the rejected woman proves the employer did something bad, maybe that shifts the burden. Maybe the employer then has to prove something. No, the lawyer answers, it’s the plaintiff’s burden to “move the ball over the fifty yard line.” No, says O’Connor, there is language in other cases that “it’s enough to show that the discriminatory reason was a substantial factor.” As Oberly resists her, she persists: “Are you saying the comments are irrelevant?” O’Connor asks incredulously. “It’s discrimination in the air,” Oberly answers. “But it did not touch the plaintiff.”
The votes at conference revealed immediately that the Court recognized the pathology of airborne discrimination. Six of the justices agreed that once the employee showed some evidence of discrimination, the employer had to do something to defend itself. Although the majority decision ultimately favored Ann Hopkins, the vote in Price Waterhouse reflected the change in the Court: Kennedy now joined Rehnquist and Scalia in siding with the employer, period. Still, with both White and O’Connor voting to tag the employer with some responsibility, Brennan, senior liberal, had six votes to play with.
VITAL FOR THE COURT
If O’Connor had her way, the liberal bloc would not soon have that chance again. Brennan was manifestly ailing, and it seemed clear that the balance on the Court would turn on who won the upcoming election. The day after the argument in Price Waterhouse she wrote to her pal Barry Goldwater that after a “depressing and very traumatic three weeks” since the cancer diagnosis, “I am back at work and on the mend.” It was, she noted, November 1, “a week until election day.” In light of the possibility that people are so indifferent that “many will not vote,” Justice O’Connor said to Goldwater, she “will be thankful if George B wins. It is vital for the Court and the nation that he does.”
O’Connor’s correspondence with her political godfather Goldwater provides a rare glimpse into the legendarily discreet justice’s political life. Four years earlier, in 1984, then Congressman John McCain wrote to Senator Goldwater to solicit a federal judgeship for a black Democrat, Cecil Patterson, who had been enormously helpful to McCain in “bridg[ing] the gap that we Republicans have with the black community and … establishing an effective dialogue which transcends notions of party or race.” In response, Goldwater wrote to John O’Connor. “I have a question to ask of both you and Sandra.” What did both the O’Connors think “as to what might happen politically or legally or any other way if I appointed a black lawyer when only about three percent of our population is black?” There is no answer in the file, but the letter reveals that Goldwater felt free to introduce such a sensitive political subject to a sitting Supreme Court justice. Shortly after the senator sought their off-the-record advice, he had lunch with Justice O’Connor in Washington and presented her with a more overt political opportunity—the Arizona Young Republicans wished to have her receive their Barry Goldwater award (and, of course, speak at their event). “I could have told you,” Goldwater reported to the youthful partisans after the lunch, “that her answer would be that the Court should not do this.”
She was discreet. But she was not indifferent. In ’86, Sandra joined the Court betting pool, Rehnquist, Stevens, and Powell, on the midterm elections. Paying up her losses afterward, she noted ruefully that her “optimism” cost her. She was too hopeful, it turned out, that the Republicans would win their races. Nonetheless, two years later, she told Goldwater that she remained hopeful for the Republican George H. W. Bush.
THE O’CONNOR COURT
Before the triumphant George H. W. Bush had a chance to prove his vitality to the Court, however, Brennan, frail but still sitting, wrote an ambitious draft in the Price Waterhouse case. The negotiation over the opinion in Price Waterhouse reveals graphically what a Court centered on Sandra Day O’Connor would do for women. O’Connor responded with a five-page single-spaced letter, suggesting he revise the opinion, making it easier on the employer in several ways. O’Connor’s resistance always carried the threat that she would attract the lukewarm liberal White, leaving Brennan with only four votes. In the six exchanges that followed, the difference between the old liberal and her potentially crucial vote came down to whether the employee had to prove that the bad motive played a “substantial” role in the company’s decision, as O’Connor insisted, or whether some lesser showing, per Brennan, would do. He resisted; she insisted, using the threat of a concurring opinion to press him into changing his language. Typically recognizing that “five is better than four,” Brennan finally agreed to raise the employee’s burden to showing the sexist beliefs “motivated” the adverse decision, not just played a part in it. She responded by saying she was going to write separately anyway.
And so she did, attracting the support of Justice White for her requirement that the plaintiff prove, by “direct evidence,” that sexism was a “substantial” motive for the woman’s bad treatment. Depriving Brennan of his majority, his opinion would speak for the four liberals only. Women, so often the victims of unconscious or covert sexism, had a terrible time proving that the sexism substantially motivated their lesser treatment. For women, as the later sexual harassment cases were to demonstrate, stray remarks around the watercooler were exactly what was keeping them down. Lower courts were left to struggle, with voluble displeasure, with what constituted “direct” evidence of a “substantial” role, often simply repeating what O’Connor said it was not—stray remarks around the watercooler. (In 1991, Congress amended the Civil Rights Act to incorporate Justice Brennan’s standard and discard O’Connor’s.)
O’Connor’s importance soared. The clear center of the more conservative Court, she wielded her position like a seasoned politician. She cast ambiguous votes at conference or professed herself undecided until she saw the draft of the assigned author and then she dragged her feet about signing on to drafts that were circulating, all techniques designed to draw the authors of assigned opinions to her in order to ensure her support. Her most visible strategic tactic was the concurring opinion, agreeing with the outcome of her chosen majority but differing with the opinion of whoever was writing. Although she was not nearly the most prolific source of concurrences on the Court, her efforts were by far the most consequential, because she didn’t just write to highlight a collateral issue or reveal a disagreement about doctrine.
When she was, as she often was, the critical fifth vote, O’Connor used the concurrence power to strip the majority opinion of its majority, setting out a different explanation for the outcome. Since she was the fifth vote in these cases, litigants and lower courts recognized that her position was the only one sure to attract the essential five supporters. Almost without exception she used the v
ehicle of the concurrence to make the conservative rulings more liberal and liberal opinions more conservative, usually by tying the outcome to the particular facts in the case. This pattern drove the lower courts to distraction from the lack of guidance on how to apply the decision in cases with similar issues but different facts.
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No Queen’s Peace in the Abortion Wars
Although her strategic behavior during the two decades from Powell’s retirement in 1987 to her own leave-taking eighteen years later affected many areas of the law, O’Connor’s new power had the biggest impact on women’s equality in the hallmark women’s issue: abortion. In 1992, two decades after the 7–2 decision in Roe v. Wade, she rewrote the rules on abortion. Her assault on the embattled 1973 consensus around Roe was eminently foreseeable. In Akron v. Akron Center for Reproductive Health in 1983, almost immediately after her appointment, she had registered her dissent from the six-man majority that reaffirmed Roe. She would have upheld a raft of local regulations discouraging abortions as not “unduly burdening” the right.
She was not alone in criticizing Roe. Ginsburg, now many years removed from advocacy by her appointment to the court of appeals, had been following O’Connor’s pronouncements on women’s issues closely from below. She used O’Connor’s story about being offered a secretarial position in a speech right after O’Connor surfaced in public view and spoke admiringly about O’Connor’s first discrimination opinion in the Mississippi women’s college case in another speech in 1984.
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