What Makes Her Tick

Walter Dellinger and Dahlia Lithwick

What Makes Her Tick

Walter Dellinger and Dahlia Lithwick

What Makes Her Tick
An email conversation about the news of the day.
June 27 2003 8:50 AM

Walter Dellinger and Dahlia Lithwick


Dear Dahlia,


You are right that the most remarkable aspect of this past Supreme Court term was the role played by Justice O'Connor. It is extremely rare for any justice to go an entire term without writing a single dissenting opinion, and to be outvoted only half a dozen times. Most extraordinary is the fact I mentioned yesterday—she alone was in the majority of every single one of the court's 13 5-4 decisions.

I believe I admire her legal pragmatism more than you do. But that's not the point here. I want to explain how she came to play such a critical role in American life, and why she now wields power with such confidence.

About two months ago, I interviewed her in public before several hundred people at Duke Law School. No members of the press were invited and no transcript is being released. But I do want to convey the sense of her that came through this intensive interview devoted to her life.

The biggest mistake people make about Sandra O'Connor is to assume that she is an accident of history. I understand why one might think that. She was plucked from the obscurity of an intermediate state court judgeship (not a place from which Supreme Court justices are drawn) by President Reagan, who had determined he would appoint a woman and did so at a time when the number of Republican women attorneys of note and in their late 40s or early 50s was exceedingly small.


Yet a closer look suggests not a person who was passively plucked, but rather a woman who reached out and grabbed history for herself. From the time she left her rough pioneer ranch, she learned from every setback and turned every obstacle into an opportunity.

When she graduated third in her class at Stanford Law School and could not get a single job offer from a law firm (except as a secretary), she went to work for a town attorney, where she encountered all the issues that affect a small town and its inhabitants. When her husband went to Europe in the service, she pulled up stakes and did some work with refugees. When he went back to Phoenix, and she once again couldn't get a law firm to offer her a job, she opened a law office with one other lawyer (located between a dry cleaner and a TV repair shop) and took whatever came in the door; that turned out to be a variety of criminal and civil matters.

At this point in the interview, I stopped to note that if she had not encountered discrimination that prevented her from settling into a big California law firm, she would not have learned all she had absorbed from these varied jobs she was forced to take. She had consistently turned lemons into lemonade and was—consciously or not—preparing herself by learning so much from such an array of pickup jobs.

Then, with three children, she interrupted her practice. What does she do then? She puts the three kids in strollers and takes them with her as she goes door to door in her precinct for her political party. She becomes precinct chair, then ward chair, then district chair. When the senator from her district becomes a judge, she is appointed to fill out the rest of his term in the state Senate.


But she doesn't step aside when that term ends. She runs and wins a term for herself. One term later, she is elected majority leader of the state Senate. How in the world did that happen so quickly? I believe that at that time she was the only woman in America to be the leader of a state legislative body.

I asked her if it was true that at that time she was considering running for governor of Arizona. Well, she said, she thought she could have had the Republican nomination. Bruce Babbitt was a good governor, she said, but then she added quietly but firmly that she believes she could have beaten him. Babbitt, however, appointed her to the state court of appeals.

Had she run and won, she would have been one of the first women ever to be elected governor of an American state in her own right. * All of a sudden, I imagined that she might have wound up as Ronald Reagan's running mate in 1980 or 1984.

This is not a person who was an "accident of history" but a person who made history. The seeds of her jurisprudence can be found in her life. Raised as the eldest child on a very rough ranch where she was often up at 4 a.m. to head out with her father and the ranch hands, she was tough from the beginning.


Her pragmatism may come from two sources. First, her father had to do everything from repairing machinery to operating on farm animals himself. He needed solutions that worked. Then, she is the only current justice who has ever run for and held elective office.

From her stern father, she has a certain tough streak. It is not surprising, when you review her record, that she is often the deciding vote in favor of capital punishment or in decisions rejecting prisoners' claims for better treatment. From her experience as a state legislator and state court judge comes her healthy respect for the role of the states. From her life in the pioneer West she also seems a bit infected with some of that anti-federal-government sentiment that seems to thrive out there.

Western conservatism often comes with a dose of libertarianism. You see it in the later years of Barry Goldwater's life, when he was outspoken for gay rights. Barry would have been proud of her vote to strike down the Texas sodomy law.

She also has a sense of tolerance that is sometimes lacking in political conservatives. No doubt that is partly due to her experience of "otherness" as the rare woman in law school in the '50s, and the ensuing discrimination she faced. But that's not all of it. One fact that is buried on her long résumé is that as a busy young mother and lawyer in Arizona, she found the time to take a leadership role in the local Fellowship of Christians and Jews. This is not unrelated to one of her most important contributions to the Supreme Court—her critically influential role in rejecting government actions that so "endorse" one religion, or religion in general, that they make religious minorities feel like strangers in their own schools and towns.


Her current influence is not just a matter of being positioned in the middle of an evenly divided court. She has an ability to look people in the eye, to listen to and understand their concerns, and to be plain and direct in telling them what she thinks the right answer is.

In response to a question I asked her about whether there were special pressures that came with being the first woman, she said there certainly were. It's nice to be the first at something, she said, but you don't want to mess up and be the last. Because of her success in the role, more opportunities opened up for women everywhere.

What is most striking is the assurance with which this formerly obscure state court judge effectively decides many hugely important questions for a country of 275 million people. I asked her if she regretted any votes she had cast in the past. Well, no, she said, because she never looked back. There are always more cases to decide, she said, so you just have to move on to the next one.

Well, this is my last posting. Your devastating wit often made me feel that my role here was essentially that of the old Washington Generals, the team whose job it was to lose night after night to the Harlem Globetrotters. But this was enjoyable nonetheless. Write me again next year when we may or may not have a different set of justices to discuss.

[ Correction, June 27, 2003: Nellie Taylor Ross was elected governor of Wyoming in 1924, Miriam "Ma" Ferguson was elected governor of Texas in 1925, and Lurleen Wallace was elected governor of Alabama in 1966. These women were understood to be political extensions of their husbands, but Ella Grasso was elected governor of Connecticut in her own right in 1974.]

Walter Dellinger is a Duke University law professor and a Washington attorney.