On the road to becoming the first female U.S. Supreme Court justice, one senator at a 1981 confirmation hearing asked Sandra Day O’Connor how she wanted to be remembered. O’Connor responded, “Ah, the tombstone question. I hope it says, ‘Here lies a good judge.'”
Twenty-two years later, O’Connor’s reputation as a justice is one that does not have a set position on every issue. This is why many observers of the University’s two upcoming lawsuits regarding its race-conscious admissions policies view O’Connor’s vote as a critical one, in what is most likely to be a 5-4 vote.
University of Chicago law Prof. Matthew Berman said O’Connor represents the minimalist judge theory by which judges prefer to narrowly tailor their decisions to specific cases and not apply them to broad principles.
“She likes to go more step-by-step, case-by-case,” Berman said. “She likes to write separate opinions that say, in effect, this opinion isn’t as extreme or its consequences might not be far-reaching as it might appear.”
O’Connor’s methodology sharply contrasts with that of Chief Justice William Rhenquist and Justice Clarence Thomas, who tend to be very consistent in their opposition to race-conscious policies in all facets of life.
“The essential point is that there are four justices who would essentially vote for the principle of a colorblind constitution,” University of Virginia law Prof. A.E. Howard said. “O’Connor has not aligned herself with that strict position. … She’s very skeptical of government use of race, but she’s willing to be persuaded.”
O’Connor’s style reflects her decisions in various affirmative action cases during her career. In the 1986 case Wygant v. Jackson Board of Education, O’Connor voted with four other justices against a school board firing white teachers in order to keep the jobs of black teachers. But, O’Connor wrote in a separate opinion that her vote might have been different if the board presented evidence that it was trying to make up for past discrimination.
“Petitioners have met their burden of establishing that this layoff provision is not narrowly tailored to achieve its asserted remedial purpose by demonstrating that the provision is keyed to a hiring goal that itself has no relation to the remedying of employment discrimination,” O’Connor wrote.
But a year later, in Johnson v. Transportation Agency, O’Connor ruled with the majority to permit a county transportation department policy that allowed a woman to be promoted over a man with higher scores on qualification tests due to a large gender gap in higher departmental posts. Once again in a separate opinion, O’Connor said the decision was narrowly tailored.
“The underrepresentation of women in skilled craft positions was only one element of a number of considerations that led to the promotion,” O’Connor wrote.
O’Connor’s background might also play a factor in the decision. In spite of graduating third in her Stanford University Law School class in 1952, the only job she could find was a secretarial position at first.
“She knows about discrimination firsthand,” Howard said. “She’s more understanding of the realities of life.”
Coincidentally, Berman compared O’Connor’s methodology to that used by Justice Lewis Powell in some instances, including in the 1978 Bakke v. University of California Regents, where he wrote that while quotas were unconstitutional in college admissions, race could be used as one of many factors.