40 years ago, before there was #MeToo or You Tube, and before the time RBG became Notorious, an unknown state appellate court judge in Arizona was nominated by President Ronald Wilson Reagan to become the first woman associate justice on the United States Supreme Court. Reagan was fulfilling a campaign promise, and he got it right (pun intended) when he tapped Judge Sandra Day O'Connor. 40 years ago in 1981 Sandra Day O'Connor was sworn in, forever changing the makeup of the Court.
The Supreme Court in 1981 included the aging white men nominated by Presidents Kennedy, Johnson and Nixon, along with one African American man- Thurgood Marshall.
It took time, as it does for all new justices, for O'Connor to find her sea legs. She routinely followed fellow Stanford Law graduate Justice Rehnquist (who was also an early paramour) and voted against affirmative action. O'Connor was also a well know critic of the Roe v. Wade decision. In her dissent in the 1983 Akron v. Akron decision, she attacked Roe because the science of the viability of the fetus had exceeded the boundaries set by Roe.
While time and tide wait for no one, not even a Supreme Court justice, time has a way of tempering, moderating, and bringing wisdom to those who serve on the highest court. Four years after her first dissent against Roe, in Webster v. Reproductive Health Services, O'Connor declined to join four justices and form a majority that would have effectively overruled Roe: "There will be time enough to reexamine Roe, and to do so carefully..." And yet four years after that concurrence, in Planned Parenthood v Casey, O'Connor joined the majority in firmly upholding Roe and planting what was thought to be the final brick in the foundation of Roe- until now (more on that in future posts).
In 2003 in Lawrence v. Texas, O'Connor joined the majority in striking down a Texas anti-sodomy law, changing her mind from her vote 17 years before in Bowers v. Hardwick in which the court, 5-4, found that the Constitution does not confer a right on homosexuals to engage in sodomy. Justice O'Connor grew; she reexamined old beliefs, some of which she moderated, and some of which she outright changed, She became a member of the moderate wing of the court, loved by neither extreme, but courted for her much needed vote.
When Justice Marshall retired in 1991, O'Connor wrote a law review article for the Stanford Law review in which she recognized that Marshall moved the Court with his "power of moral truth" as well as his legal analysis, and that she "hoped to hear just once more another story ...that would perhaps change the way I see the world." Moderate indeed. O'Connor was a Justice constantly challenging her own view of the law and the world. She was not wedded to consistency so much as the desire to get it right.
In 2005 O'Connor provided the fifth vote in striking down the constitutionality of the display of the Ten Commandments in a Kentucky Courthouse: "Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: why would we trade a system that has served us so well for one that has served other [nations] so poorly?"
The Supreme Court has three relatively new Justices. We can only hope they will be as introspective, intelligent, and willing to learn from other colleagues who have different views. 40 years ago President Reagan was fulfilling a campaign promise and striking down a barrier for women, along the way he picked as good a Judge as there was in the land- ready to become a great Justice.