Justice Sandra Day O'Connor

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July 1 2005 5:42 PM

Justice Sandra Day O'Connor

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Dear Dahlia and Emily,

I'll tell you what I'll miss most. There are two aspects of Justice O'Connor's service on the court that I especially admire. For one, Justice O'Connor really struggled with the cases. You're right, Emily, that her undogmatic, decide one-case-at-a-time approach has been a source of frustration for some court-watchers and, at times, for her colleagues and lower-court judges as well. But it is more often than not a great strength—one her replacement likely will not have. Let me explain what I mean.

As you know, most of the cases that arrive at the court are there not because some terrible injustice was done by a lower court (although sometimes it was). The justices usually select cases because there is some form of uncertainty or disagreement about the proper interpretation of the law that should be applied. Indeed, almost every case that the court hears is one on which the federal appeals courts disagree about the proper interpretation of the law. Today a "circuit split" is virtually a prerequisite to getting an issue to be heard by the court. Why does this matter? It matters because there are no easy cases at the Supreme Court—there are almost always good arguments on both sides.

So what is a justice to do when confronted with cases for which both sides have good arguments? For some, a predefined judicial philosophy leads them to the answers. Justice O'Connor, though, doesn't tend to approach cases this way. Instead, she takes them on their own, confronting each case on its own terms and going where her fine-honed jurisprudential skills combined with uncommon good sense leads her. Yes, this can make her unpredictable at times. And I'm the first to admit that I don't always agree with her decisions. But I have always felt that both sides got a fair hearing—and that matters a great deal.

On a more personal level, I will miss Justice O'Connor's presence on the court because of who she is. She is, of course, the first woman justice—a fact so often repeated that it has almost become synonymous with her name. It is easy to forget, perhaps, that when Justice O'Connor graduated from law school, a woman Supreme Court justice was almost unthinkable. Third in her class at Stanford Law School, she was unable for many years even to find a job as a lawyer. Those of us who have entered a legal profession changed through her and her contemporaries' tireless efforts owe an unpayable debt. As important as this is, I will miss her presence on the court even more because of her genuine humanity. Justice O'Connor is a kind, warm, gracious, witty, and very human presence on the court, though that is far from apparent when she sits in her black robes wearing a serious expression in the court's grand hall. She is a wife, a mother, a grandmother; she has struggled with illness—both her own and that of those nearest to her. And she has a wicked sense of humor. Not known for lavishing praise (or, really, giving much praise at all) on her clerks, she posted a sign on the door to the clerks' office. Below a photocopy of her hand it reads: "For a pat on the back, lean here." Today, of course, she herself deserves much more than the proverbial pat on the back. Today is an occasion to celebrate and be grateful for Justice O'Connor's service and devotion to the court and to the nation.

Oona

Oona Hathaway is a law professor at the University of California-Berkeley.

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