O’Connor & The Court: Breaking The Supreme Court’s Glass Ceiling

// The Supreme Court stood as a monolithic institution for almost its first two centuries with its all male (predominately white male) composition. Confirmed in 1981 as the nation’s 104th Supreme Court justice and its first woman, Sandra Day O’Connor truly broke through the glass ceiling. From her many years at the helm as the Court’s swing justice to her votes and opinions in major cases, O’Connor was notable for much more than her gender — she was quite unique in nuanced ways, some of which went well under the radar.

A Trailblazer

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Justice O’Connor cut a new path for Supreme Court Justices in a plethora of ways. Here are just a few (several of these tidbits come from the Supreme Court Justices Database):

• One of the most interesting aspects of Justice O’Connor’s resume was her work in state government. She was a state trial judge and along with Justice Souter was the only justice with this type of background experience since Justice Brennan was confirmed in 1957.
• She, along with Justice Brennan, were the only Justices to previously sit on state intermediate appeals courts since Justice Bradford in the mid-19th Century.
• O’Connor was also one of only a few justices in the 20th and 21st Centuries who sat on state courts immediately preceding their nominations to the Supreme Court. The others include Justices Brennan, Cardozo, Pitney, and Holmes.
• O’Connor, Souter, and Thomas were the only justices to have previously served as assistant state attorneys general since Justice Harlan II, who was confirmed in 1955.
• O’Connor was the only to previously serve as a state senator since Justice Sutherland, who was confirmed in 1922.
• O’Connor was unanimously confirmed to the Supreme Court and since 1980 was one of only three justices to do so along with Justices Scalia and Kennedy.
• O’Connor was the only justice born in Texas since the 1950s. The last being Justice Tom Clark, who was confirmed in 1949.
• O’Connor is one of only two justices to have attended both Stanford University and Stanford Law School — the other being Chief Justice Rehnquist. She and Rehnquist are also the only two justices who called Arizona their home state for Supreme Court nominations purposes.
• Aside from Justice Souter (who retired at 65), O’Connor was the youngest justice to leave the Court through death or voluntary retirement at 75 since Justice Goldberg retired at 56 to serve as the U.S. Ambassador to the United Nations (in 1965).
• O’Connor, who was 93 when she passed on December 1st, was the third-longest surviving justice — the others being Justices Reed (95) and Stevens (99).
• In 1981, O’Connor’s confirmation hearing was the first to be televised for a Supreme Court nominee. Needless to say, the enormity of her appointment was built for primetime.

Decisions and Data

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Of course, along with her unique pedigree, O’Connor was known to be one of the most influential justices of the late=20th and early-21st centuries. She was often considered the most powerful justice on the Court for her sometimes-unpredictable votes and her moderate conservative positions, which thrust her into the role of swing justice in some of the Court’s most well-known decisions.

O’Connor, for instance, was one of the authors for the Court’s decision in Planned Parenthood v. Casey. Her undue burden standard stood as the foundation for constitutional questions concerning  abortion from 1994 until 2022.  Prior to Casey’s upholding the constitutional right to an abortion though, O’Connor dissented in the Court’s 1983 decision in Akron v. Akron Center for Reproductive Health, which struck down several provisions of an Ohio law that would have put potential impediments in the way of women seeking abortions.

Before these abortion decisions, however, O’Connor was remembered for her majority opinion in Mississippi University for Women v. Hogan, which she authored at the end of her first term on the Court. In this 5-4 decision, O’Connor wrote that an all-female public institution must open its doors to men under the 14th Amendment’s Equal Protection Clause.  O’Connor also authored the 5-4 decision in Maryland v. Craig, allowing one-way closed-circuit television to present testimony by an alleged child sex abuse victim under the 6th Amendment’s Confrontation Clause.  One of O’Connor’s last 5-4 decisions was in Grutter v. Bollinger which set the standard for affirmative action from 2003 until it was overturned at the end of the last term.  Perhaps most consequentially, along with Justice Kennedy, O’Connor played a pivotal role in shaping the presidency at the turn of the 21st Century by siding with George W. Bush in the case of Bush v. Gore.

O’Connor voted in 471 signed and argued (5-4) decisions between 1981 and 2006 (as shown below). She was in the majority in 311 of those instances or nearly 66% of the time. Of those 311 majority votes she authored the second most majority opinions at 54 (11% of the total 471) and was just over ten shy of Chief Justice Rehnquist’s 66.

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Only four justices were on the Court who voted in more than 350 (5-4) decisions during this time. O’Connor had a significantly higher percentage of majority votes in these decisions than two of them – Stevens and Scalia – and had nearly 5% more majority votes than the fourth Justice, Justice Rehnquist. For justices with over 300 majority votes only Justice Kennedy eclipsed Justice O’Connor percentage with over 70% of his votes in the majority.

According to Martin and Quinn’s scoring of justices’ ideological leanings, O’Connor was the Court’s median justice from the mid-1980’s through her retirement during the 2005 Supreme Court Term. This also alludes to the power of her vote in shaping the Court’s majority decisions.

Building from this point, O’Connor was in the majority more than any other justice during her tenure on the Court (2,113 times).  While one might suspect that this was due to only tracking the years where O’Connor was on the Court, this does not seem to overly bias the outcome as Justices Rehnquist (2,027 majority votes) and Stevens (1,841 majority votes) were also there for the same years and had fewer majority votes than O’Connor. When we normalize the votes into frequencies in the majority, we see the following:

Similar to the (5-4) frequencies in the majority O’Connor was in all majorities more frequently than others in the same vote ballpark as her. If we remove Roberts because of significantly fewer votes, as well as the Justices only on the Court for the first part of O’Connor’s tenure on the Court (Powell and White in particular), then only Justice Kennedy has a higher frequency in the majority at over 90%.

As Justice O’Connor was frequently in the majority, she did not author an overwhelming number of dissents. The following graph tracks O’Connor’s opinion authorship over her years on the Court:

The most majority opinions O’Connor authored in a term was 17. She did this three times – in 1983, 1985, and 1986. She authored the fewest majority opinions with three in 2005 when she retired early in that term. She also was in the majority 100% of the time that term. O’Connor’s most unusual term was in 1995 where she authored eight majority opinions, two dissents, and zero regular concurrences.  The greatest number of dissents she authored in a term was 11. She did this three times.

Outside of the 1995 and 2005 terms, O’Connor had the greatest percentage majority opinions as a fraction of her total opinion output in 1990 with 69.57%. She had the greatest frequency of written concurrences in the 1994 Term with 40.74%. She authored her greatest frequency of dissents during the 2001 Term at 38.89%.

Concluding Thoughts

A story that has surfaced again recently concerns Justice O’Connor’s first job after law school when she was not offered a position in a law firm and instead took an unpaid position as a deputy county attorney in California. This was after she graduated third in her class at the prestigious Stanford Law School. From these humble beginnings in the 1950s she later revolutionized the Supreme Court as its first female justice.

In his remarks publicly announcing his intention to nominate Justice O’Connor in 1981, President Reagan stated:

“Needless to say, most of the speculation has centered on the question of whether I would consider a woman to fill this first vacancy. As the press has accurately pointed out, during my campaign for the Presidency I made a commitment that one of my first appointments to the Supreme Court vacancy would be the most qualified woman that I could possibly find.

Now, this is not to say that I would appoint a woman merely to do so. That would not be fair to women nor to future generations of all Americans whose lives are so deeply affected by decisions of the Court. Rather, I pledged to appoint a woman who meets the very high standards that I demand of all court appointees. I have identified such a person.

So today, I’m pleased to announce that upon completion of all the necessary checks by the Federal Bureau of Investigation, I will send to the Senate the nomination of Judge Sandra Day O’Connor of Arizona Court of Appeals for confirmation as an Associate Justice of the United States Supreme Court.”

Linda Greenhouse described for the New York Times in September 1981:

“…the woman who 29 years ago was refused a job at every law firm to which she applied, after graduating near the top of her law school class, took her place on the bench, the seat at the far end reserved for the most junior Justice.”

Justice O’Connor often dictated the direction of the Supreme Court across her 25+ years on the Court. During this time, she was arguably the most important justice on the Court. Although some might have been skeptical about President Reagan’s decision to nominate a woman to the Court in the first place, Justice O’Connor not only proved them wrong but changed the institution in perpetuity.

Adam Feldman runs the litigation consulting company Optimized Legal Solutions LLC. For more information write Adam at [email protected]. Find him on Twitter @AdamSFeldman and on LinkedIn here.

Jake S. Truscott is a post-doctoral researcher at the C-SPAN Center for Scholarship and Engagement (Purdue University).

Topics

Adam Feldman, Courts, Sandra Day O'Connor, Supreme Court