Sandra Day O'Connor: The First
Discover the story of the Supreme Court’s first female justice. A pioneer who both reflected and shaped an era, Sandra Day O'Connor was the deciding vote in cases on some of the 20th century’s most controversial issues—including race, gender and reproductive rights.
REPORTER: Do you have any trepidation?
No, it should be very interesting.
CHARLIE ROSE: When you arrived at the Supreme Court, how was it?
What was it like?
Well, it was a very intense experience, to say the least.
ROSE: Intense because?
SANDRA DAY O'CONNOR: Because of all of the attention that was being given
nationwide to the fact that finally, after 191 years,
a woman had been put on the Supreme Court
of the United States.
It was a very difficult job,
and it's hard enough to do
without a lot of media attention being given to it.
And, frankly, you and your colleagues
paid too much attention to it, I thought.
Why? Why shouldn't we have paid attention to it,
because it was a historic appointment?
SANDRA DAY O'CONNOR: Yes, that's fine,
but then let's move on and let's let the work be done.
And it didn't seem to work that way
because everywhere that Sandra went,
the press was sure to go. Sure.
NARRATOR: The first woman ever to sit on the highest court in the land,
Sandra Day O'Connor was meant to be a symbol--
a gesture to women proffered by a political party
that had turned its back on their quest for equality.
RONALD REAGAN: I'm announcing today
that one of the first Supreme Court vacancies
in my administration
will be filled by the most qualified woman
I can possibly find.
NARRATOR: In her quarter of a century on the bench, however,
she proved far more.
Send Judge O'Connor back to Arizona!
She's got too bad a record in killing babies!
NARRATOR: Confirmed amid the first salvos of the culture wars,
O'Connor would find herself
holding the Court's center of gravity,
striving to keep the law from radically changing direction
and the country from going to extremes.
You want to kill women. (man speaking indistinctly)
NARRATOR: Whether she actually bridged differences
or merely papered over them would remain a matter of debate.
But with consensus and civility her defining creed,
she nevertheless became
the most influential Supreme Court justice of her time.
LINDA HIRSHMAN: She was smart,
and she was staggeringly energetic,
and she could carry both roles--
the conventional female role that made her not scary...
Oh, come on.
HIRSHMAN: And the tough-minded judicial role
that made her powerful.
She was the perfect first.
REPORTER: Good evening--
the constitutional procedure that could lead
to the first woman on the Supreme Court
formally began today.
The Senate Judiciary Committee opened confirmation hearings
on the nomination of Judge Sandra Day O'Connor.
NARRATOR: When she arrived on Capitol Hill
on the morning of September 9, 1981,
Sandra Day O'Connor already was the most talked-about
judicial nominee in American history.
REPORTER: Judge O'Connor is known as a forceful,
determined, no-nonsense woman
who's not afraid to speak her mind.
The brethren will no longer be the same assuming
she takes her place among them.
NARRATOR: For the next three days, she would also be the most watched.
REPORTER: Are you ready?
Well, I hope so.
REPORTER: Are you nervous?
No, I don't think so.
REPORTER: Only 51 years old, she could be a power on the Supreme Court
well into the 21st century.
THOMAS: There are more requests for press passes
to her confirmation hearing
than there were to the Watergate hearings.
It's the first time
judicial confirmation hearings have been run on TV
gavel to gavel, and there are tens of millions
of people watching.
GREENHOUSE: Everybody that had a television
was tuned in, because she was a figure
The notion of a woman on the court was so unusual.
She was going to be different.
NARRATOR: A lifelong Republican,
O'Connor had been nominated to the Court
by President Ronald Reagan,
and now strode into the hearing room
on the arms of party stalwarts Senators Goldwater and Thurmond.
Judge O'Connor, the time has now come for you to testify.
Will you stand and be sworn?
NARRATOR: Her conservative bona fides seemed assured.
SANDRA DAY O'CONNOR: As the first woman to be nominated
as a Supreme Court justice,
I'm particularly honored
and I happily share the honor with millions of American women
of yesterday and of today...
NARRATOR: Outside the Senate chamber, however,
fellow Republicans denounced her.
We don't want her on the Supreme Court.
MAN (chanting): Life, yes! O'Connor, no!
NARRATOR: They were Christian conservatives--
the vanguard of a mounting counter-revolution
forged by opposition to the Equal Rights Amendment
and fueled by a generation's worth
of liberal Supreme Court decisions,
especially Roe v. Wade, the controversial 1973 decision
that established a right to abortion.
WOMAN: Looking at the Democratic platform,
I know that Christ would not support that platform.
NARRATOR: Their votes had helped catapult
Reagan into the presidency.
MAN: The Supreme Court declared war on the unborn in America.
The one thing he could do for us as president, the big thing,
was to appoint new justices to the Supreme Court
to turn this carnage around, to stop this slaughter.
(cheers and applause)
REPORTER: There was controversy following the president's announcement
concerning O'Connor's positions on the issues of abortion
and the Equal Rights Amendment.
REPORTER: Is the first woman nominated
for the Supreme Court too much of a feminist?
Some right-wing groups think so.
Sandra O'Connor is trying to keep their opinion
from endangering her confirmation.
MAN: One might inquire as to your
general feelings on the rights of women
and how that might be reflected
in the public policy arena?
On the subject of abortion,
would you discuss your philosophy on abortion,
both personal and judicial?
SANDRA DAY O'CONNOR: The personal views of a
Supreme Court justice, and indeed any judge,
should be set aside.
REPORTER: Judge O'Connor spent most of the day
dodging specific answers.
MAN: Turning to the subject that I'm sure probably will never end
and that's the question of abortion.
SANDRA DAY O'CONNOR: Okay, Senator, my personal views and beliefs
have no place in the resolution of any legal issues.
I do not believe that as a nominee
I can tell you how I might vote
on a particular issue.
It's just that I feel that it's improper for me
to endorse or criticize that decision.
SENATOR JOSEPH BIDEN: Judge, I'm going to vote for you.
I think you'll make a heck of a good judge;
but I'm a little disturbed
about the reluctance to answer any questions.
NARRATOR: Within the Senate chamber,
O'Connor's assertion of judicial independence was a virtue,
and by the hearing's third day,
she was widely thought to have a lock on the confirmation.
But when it came to the demonstration in the street--
and the growing ideological divide over American values--
no one could say for certain
which side she was on.
NARRATOR: Independence perhaps came naturally to a person
raised as Sandra Day had been...
Miles from nowhere in the southeastern corner of Arizona,
on a 160,000-acre cattle ranch called the Lazy Bee.
EVAN THOMAS: It took a man on horseback
a whole day just to ride across it.
The Day family called it
their own country, and it was.
There was nobody else there.
HIRSHMAN: Arizona was really a frontier place in the '30s
when she was growing up, so everybody had to pitch in.
It was just a tiny little society
in which she was an equal.
She learned to fire a rifle
when she was old enough to hold one,
to drive a truck when she was about ten.
SCOTT O'CONNOR: You can't overstate the self-reliance you get
growing up in a place like that.
You solve your own problems
and the job isn't finished until it's finished.
NARRATOR: Years later, O'Connor often would recall
the day she was charged with delivering lunch
to the ranch hands out working the roundup.
SCOTT O'CONNOR: She loaded up the old Willie's Jeep with lunch
and started out for the rendezvous point
where the cowboys were going to be branding the calves.
And she got a flat.
Here she is, all of, you know, 14 or 15 years old
and had to change a flat tire on a four-wheel-drive Jeep
in the middle of nowhere, and be able to do that without any help
and get onto lunch.
OSCIE THOMAS: She was very proud of herself when she achieved this.
She gets out to the roundup.
She says, "Dad, I had a flat tire, and I fixed it."
Her father says, "You're late.
Next time leave earlier."
HIRSHMAN: She always said she learned a lesson from that,
which is there were no excuses.
You either did what you had to do,
or you didn't do what you had to do.
NARRATOR: They were reluctant ranchers, Sandra's parents:
Ada Mae, a college graduate from El Paso who greeted each morning
on the Lazy Bee wearing stockings and perfume,
and Harry, a champion high school athlete,
bound for Stanford when he was drafted
to rescue the family ranch.
SCOTT O'CONNOR: He missed out on the education he dreamed of.
And instead he had to go back to this miserable ranch
that wasn't his choice.
Mom was born right into that picture.
All of his dreams I think had to be delivered through her.
She was the vehicle.
(train whistle blares)
NARRATOR: Shipped off to her grandmother in El Paso
for the school term from the age of six,
Sandra made it her business to excel, skipping two grades
and enrolling at Stanford when she was just 16.
EVAN THOMAS: She went to Stanford in the fall of 1946
and it was, as she wrote home, utopia.
It was this land of learning,
it was beautiful, it was fresh and green.
It was everything the ranch was not
in the sense of being full of life.
She just loved it.
OSCIE THOMAS: Like campuses across the country,
Stanford has welcomed G.I.s,
and one of her friends says
that it's full of smiling men in bomber jackets.
HIRSHMAN: Sandra Day was confident in the way that a very smart,
very treated-like-an-equal-since she-was-able-to-talk
young woman would be.
So, when she went to Stanford from this remote ranch,
and all of these more sophisticated young women
from, like, San Francisco and stuff were thinking, you know,
who's this nobody?
And the next thing they knew,
she had captured the most desirable guy at the dance
and was riding around in his convertible with him.
NARRATOR: Curious, self-motivated, always prepared,
Sandra sailed through her undergraduate courses,
and inspired by a charismatic lecturer named Harry Rathbun,
continued on to study law.
OSCIE THOMAS: He taught her that you can make a difference in the world,
that a single person
can have an impact,
and that women can take their place alongside men
and men need to let them.
His encouragement helped her decide
that she could go to law school.
EVAN THOMAS: Sandra Day was near the top of her class
at Stanford Law School, top ten percent, law review.
And any student with a B-average could apply
to any one of about 40 law firms
in San Francisco and Los Angeles,
and she applied to all of them.
She was given one job interview
and the lawyer there asked her, "How well do you type?"
MELISSA MURRAY: Her experience was very much like many of the women
who graduated from those elite law schools--
just plenty of promise,
certainly incredible credentials,
but a legal market that was absolutely inhospitable to them.
HIRSHMAN: She was told repeatedly that the firm didn't hire women.
And I think it came as a shock to her.
She never got the message
that there were limits on what she could accomplish.
She was as confident that the world would reward her
and offer her a good life as any man would be.
OSCIE THOMAS: She knew she was as smart as almost any of the people
who were getting multiple job offers.
Her friend Bill Rehnquist
was on his way to Washington to clerk on the Supreme Court.
And she did not think that she would be left in an empty room
when everybody else had gotten their jobs.
NARRATOR: Sandra and Bill Rehnquist had been something of an item
their first year at Stanford Law,
and writing to her from D.C. that summer after graduation,
he took it into his head to propose.
By then, however, the popular Miss Day's affections
already had been pledged--
to a charming, urbane classmate named John O'Connor,
who'd been paired with Sandra
for a law review proofreading assignment
and had taken her out for the next 41 nights in a row.
The two were married just before Christmas 1952;
but the new Mrs. O'Connor hadn't gone to law school
to become a wife.
HIRSHMAN: She had heard that a local assistant district attorney
had once hired a woman in his office,
so she went to him and applied for a job.
And he said, "Well, first of all, I don't have an opening.
"Second of all, I don't--
I don't even have a place to put you.
I don't have an empty office."
I was dying to practice law.
So I said, "Well, you know, if need be,
"I'll work for you for nothing.
"And, if you don't have a place for me to sit,
I'll sit with your secretary, if she'll have me."
RUTH MCGREGOR: She liked to say that she didn't feel
she had been discriminated against.
And yet, it's obvious that she was.
I think she didn't want to feel
as if she was in a weaker position than the men,
and she didn't want to complain about it
for fear that they would take it as a sign of weakness.
SANDRA DAY O'CONNOR: I mean, it seemed to me they should be hiring women,
but I went where people were hiring women
and got on with the rest of my life.
NARRATOR: Phoenix was a boomtown
when the O'Connors settled down there in 1957;
but as Sandra recalled it,
"You could fit all the women lawyers in town around a table."
While John easily found a position with a private firm,
she, as a woman and pregnant at that, had no such luck.
So she opened a storefront law practice
and took whatever cases came through the door.
When that proved too much
after a second and then a third son came along, she volunteered
to write state bar exam questions,
handled bankruptcy cases,
joined the Junior League and became president,
all while mincing and sautéing her way through every recipe
in "Mastering the Art of French Cooking."
She was very competitive, let's put it that way.
She always had to be doing something.
And, you know, you had to do well.
NARRATOR: John, meanwhile, was making a name for himself
as a commercial litigator,
and forging connections with the Phoenix elite.
OSCIE THOMAS: John was civic-minded.
He was head of a hospital board, he was on the Rotary.
He had a path that some people would have said
would lead him right into politics.
But he knew that his wife
was every bit as accomplished as he was.
SCOTT O'CONNOR: Dad loved helping her open doors, meet people.
He helped set a scene or an opportunity,
and all she had to do was show up and be herself
and she'd win them over.
NARRATOR: When John became active in Arizona's Republican Party,
Sandra did too--
at first stuffing envelopes
for U.S. Senator Barry Goldwater,
their neighbor in the affluent Phoenix suburb
of Paradise Valley.
MAN (in archival footage): ♪ Young, courageous, dedicated... ♪
RICK PERLSTEIN: Barry Goldwater was promoting the Republican Party
as kind of this new redemptive force.
MAN (in archival footage): ♪ A great champion from the West ♪
♪ Barry Goldwater, Arizona's best! ♪
PERLSTEIN: The Barry Goldwater faction
of the Republican Party who ran Phoenix
were quite explicitly kind of "good government" conservatives.
And one of the ideas of "good government"
was that using the free marketplace--
in the absence of bureaucracy--
this clean-cut, elite generation
of entrepreneurs were going
to build this sort of businessmen's republic.
When it operates with as much absence
of government interference as possible,
the economy operates the best.
NARRATOR: In Goldwater, Sandra heard echoes of her father,
whose tirades against the intrusions
of the federal government had been a dinnertime staple
back on the ranch.
In politics, she found an outlet for her ambition.
We are conservatives...
PERLSTEIN: Political volunteers who were women
were the lifeblood of parties, right?
They had all this time on their hands,
they had resources.
So if you were an ambitious woman,
you would find welcoming arms in,
in, you know, a kind of a party precinct office.
And if it's a party like the Republican Party in Arizona
that has this young, dynamic senator at its head,
attaching yourself to him
is like attaching yourself to a rocket ship.
HIRSHMAN: So she got involved
in this up-and-coming Republican Party,
which was a very smart move,
because when she decided to go back to work,
she could rattle her political network
and get what she wanted, which was a paying job.
NARRATOR: After five years as a nominal homemaker--
and with her children all now in school--
Sandra returned to the law in 1965,
as Arizona's assistant attorney general,
a low-paid position with a vague job description
that served as a primer in the workings of state government.
Four years after that,
a Republican seat in the Arizona Senate was vacated mid-term,
and she appealed to her party connections
to get herself appointed.
She would hold the position through the next two elections,
just as the women's movement began to stir.
CROWD (chanting): What about the women?
What about the women? What about the women?
WOMAN: What do we want? WOMEN: Equal rights!
WOMAN: When do we want it? WOMEN: Now!
HIRSHMAN: She got to the Arizona state senate
when the feminist movement was taking off,
and she admits that she was put on great committees
that a freshman senator would never have been put on
if she hadn't been a woman, they were showing her off.
NARRATOR: Senator O'Connor did not identify as a feminist.
As she once put it to members of the Rotary and Kiwanis clubs:
"I come to you with my bra and my wedding ring on."
But she'd nevertheless arrived at the Arizona statehouse
with an equal opportunity agenda of her own.
MCGREGOR: Her view of a feminist who was somebody
who was demonstrating in the streets,
and that's not who she was.
But nothing would frustrate her more
than to suggest a woman wasn't able to do a job.
OSCIE THOMAS: One of the important things to her was the art of the possible.
She said, "You get your foot in the door,
"and you put on a good show.
"You show people that women can do a good job,
and they'll give you more jobs."
HIRSHMAN: Which is her way of saying, "I'm not a feminist, but..."
That did not actually help the movement,
but it did help her make her way into a hostile environment,
which helped the movement.
NARRATOR: O'Connor read the legislation that no else did
and worked across the aisle when it served the interests
of the state, which, given the Republicans' slender majority,
was nearly always.
LINDA GREENHOUSE: What she learned was the virtue,
the necessity of negotiation, of compromise,
of bringing people together
to reach a result that everybody could live with.
EVAN THOMAS: Her colleagues called her a know-it-all,
that know-it-all from Stanford.
She once amended a bill to remove a comma.
But they respected her.
She was somebody who got it done, but didn't make you feel
that she had gotten it done.
She could play you without you feeling played.
NARRATOR: On the heels of her re-election in 1972,
O'Connor's Senate colleagues made her Majority Leader,
the first woman in any state in the country
to ascend to that post.
With it came a responsibility to push through her party's agenda,
whatever the obstacle.
EVAN THOMAS: She had one particular antagonist,
the chairman of the House Appropriations Committee,
a fellow named Tom Goodwin.
Tom Goodwin was a drunk-by- 10:00-a.m. drunk, a real drunk,
and he would just disappear with the budget.
So finally she called him on this and said, you know,
"You're drinking too much."
And he said to her, "If you were a man, I'd punch you."
And she looked at him and said, "If you were a man, you could."
So there was a toughness,
there was a mental toughness there that was extraordinary.
NARRATOR: Arizona feminists expected the new Majority Leader
would use her clout on behalf of the E.R.A.,
which had passed Congress
with overwhelming bipartisan support in March 1972.
REPORTER: The Equal Rights Amendment would strike down all state laws
that discriminate against women
in the home, at school, and on the job.
NARRATOR: O'Connor had championed the amendment then--
taking to the floor of the Senate
to urge her colleagues to ratify.
But the measure had been idling ever since,
and she now sensed a shift in the political winds,
driven by a right-wing Republican activist
named Phyllis Schlafly.
If the Equal Rights Amendment is ratified,
people will then realize it's quite a fraud.
It won't do anything at all for women,
but it will take away rights that women now have.
PERLSTEIN: Phyllis Schlafly came out foursquare
against the Equal Right Amendment as
basically a elite conspiracy
to rob women of the privileges they derived
from traditional gender arrangements.
This would remove and wipe out the laws of the 50 states
which make the husband primarily responsible
for the financial support of his wife and children.
PERLSTEIN: And it was a very powerful argument for people
who held these traditional values.
REPORTER: Opposing the federal amendment
are women like these, members of STOP E.R.A.
According to them, the E.R.A. is anti-family, anti-God,
a government intrusion that will remove
the legal protections
that have shaped women's lives for centuries,
a government intrusion that will destroy the American family.
NARRATOR: It was troubling to O'Connor,
the right-wing fervor rising in the G.O.P. ranks.
Like many moderate Republicans,
she cared more about good government
than controversial social issues,
and didn't care much for religion when worn on sleeves.
But Schlafly's campaign already had mobilized
religious conservatives across the country--
among them, as O'Connor well knew,
numerous members of her own Republican caucus.
With feminists clamoring for an up-or-down vote
on the floor of the Arizona senate,
Majority Leader O'Connor took stock of the E.R.A.'s chances
and quietly let the measure die in committee.
SCOTT O'CONNOR: The feminists were disappointed in her--
you know, "You didn't try hard enough,
"you're a powerful figure, you're Majority Leader,
why couldn't you force it out of committee?"
But she didn't have the votes to get it out of committee.
EVAN THOMAS: Instead, she made a list of every law
in the state of Arizona that discriminated against women.
She made it her business to change
every single one of those laws,
and she did-- without getting into a fight
that would have been great for virtue signaling
but wouldn't have gotten anywhere.
HIRSHMAN: Men have power in America, so it's absolutely central
that she figured out a way to work with them.
She was able to rise
without triggering that angry resentment
that women are almost always greeted with
when they are the first great something.
NARRATOR: By the early 1970s, the O'Connor home on Denton Lane
had become a hub-- and Sandra and John,
Paradise Valley's golden couple.
EVAN THOMAS: They were sporty, they were good looking.
They gave good cocktail parties.
But there was something else going on there.
They were equal, and that was pretty unusual.
People could see
their mutual regard, and they were kind of fascinated by it.
MCGREGOR: Two lawyers can sometimes be competitive,
one with another, but they really never were.
They both wanted to be participants
in their professions and in the community,
so they supported one another in what they wanted to do.
SCOTT O'CONNOR: On any given weekend
during the legislative session,
Mom would be in the office in the great room in our house
and Dad would be at the little roll-top desk
in the master bedroom, and they'd each be drafting away
with pencils on yellow legal pads.
And they'd write and write and write,
and then they would trade pads and edit each other's work,
and it would turn into a bill at the legislature the next...
you know, on Monday.
We had no idea that this wasn't normal.
We just thought that's what parents did.
NARRATOR: Sandra, though, was restless.
Even before the Senate's session drew to a close in 1974,
she was contemplating her next career move.
"I was never one of the boys," she later said.
HIRSHMAN: She did not suffer fools gladly,
even though she was too smart to show it.
But she was tired of having to play politics
and beg and wheedle and manipulate with people
who were clearly not as smart as she was.
SCOTT O'CONNOR: She thought, "You know, if I went back into the law
and not this politicking, I'd be working with people
that are playing by the rules.
They don't interrupt.
Everybody gets their turn to speak.
There's a system, a process.
Supposedly we get a just result.
I think I'd like that a lot more than this
gladiator-style thing that I'm doing here now."
NARRATOR: O'Connor had decided to become a judge--
an ambition that had been gathering force
since at least 1971, when President Richard Nixon,
for whom she'd campaigned, put her one-time suitor
Bill Rehnquist on the U.S. Supreme Court.
SCOTT O'CONNOR: Mom and Dad were very dear friends with Bill Rehnquist,
who started practicing law in Phoenix.
They played bridge together a couple times a week.
So, for Mom to have somebody that she's gone through
the same career with, the same law school, the same courses,
the same exams with, get to that position,
how could you not believe that it wasn't possible for you?
Because you've been all the same places
and done all the same things-- why not you?
NARRATOR: Of the nearly 9,000 judges in the United States at the time,
only 300 were women; but O'Connor was undeterred.
Declaring now for an elected seat
on the Maricopa County Superior Court, she spent $13,000
on a mass mailing to Republican households,
and beat out her experienced, male opponent
with 70 percent of the vote.
The career pivot would prove consequential.
Confronted over the next five years with a daily onslaught
of human dramas--
burglaries, kidnappings, murders, divorces--
an experience she later described as
"sitting all day in a soap opera,"
O'Connor earned a reputation for being well-prepared,
By 1979, she'd been elevated to the Arizona Court of Appeals.
(camera flashes loudly)
And there she sat a year later, when Ronald Reagan,
then the Republican nominee for president, staked out a position
that was likely to cost him with women voters.
HIRSHMAN: The gender gap,
which we hear so much about now,
it made its first appearance in the election of 1980.
CARTER: The Equal Rights Amendment only says
that equality of rights shall not be abridged for women.
Yes, Mr. President, once again,
I happen to be against the amendment.
NARRATOR: It was an abrupt about-face:
the Republican Party had endorsed the E.R.A.
for four decades.
(crowd singing "Amazing Grace" indistinctly)
But the rise of the Christian right had changed the calculus.
(crowd singing "Amazing Grace")
Looking to capture the votes of religious conservatives,
the G.O.P. now had made common cause
with Reverend Jerry Falwell's Moral Majority--
an activist, evangelical political organization
anxious to restore to America
what they called "family values."
We've got to raise up an army of men and women in America
who call this nation back to moral sanity and sensibility.
PERLSTEIN: The Moral Majority becomes
the center of Ronald Reagan's grassroots political appeal.
And one of the reasons they were so powerful is much like
labor unions, churches could form the organizational backbone
of a political campaign.
They're already organized
into an infrastructure, all we need to do
is kind of flick on the switch.
FALWELL: During the 1980s, we have a three-fold
Number one, get people save;, number two, get them baptized;
number three, get them registered to vote.
PERLSTEIN: So you had this very powerful constituency
within the Republican Party,
who are quite explicitly opposed,
to things like the Equal Rights Amendment,
abortion, so the party had to make a choice.
HIRSHMAN: In 1980, the Republican Party
affirmatively removed support for the Equal Rights Amendment
from its platform and took their first anti-abortion stance.
After 40 years of the G.O.P. leading on this issue,
Ronald Reagan is now going to be perceived, rightly or wrongly,
as against women's rights.
HIRSHMAN: So the Republicans were moving against
the feminist agenda, and women voters
responded by not wanting to vote for their candidates.
EVAN THOMAS: Ronald Reagan in the swing state of Illinois
was 11 points ahead with men
but nine points behind with women.
So his political advisor said,
"We've got to do something about this."
You can't have a political movement that's just men.
They had to find a way to attract
college-educated white women.
I'm announcing today
that one of the first Supreme Court vacancies
in my administration will be filled
by the most qualified woman I can possibly find.
JOHNSON: It was a cynical move by Reagan.
EVAN THOMAS: However, once he became president,
he got serious about it.
REPORTER: President Reagan will have the rare chance
to appoint someone to the Supreme Court.
Justice Stewart announced his resignation today,
saying, "It's time to go."
SCOTT O'CONNOR: All of a sudden Mom and Dad were kind of looking at each other,
going, "Could it happen?"
But they didn't want to jinx it by talking about it,
but I'm sure they were talking with each other
that it was possible.
And Dad mobilized every contact he knew
to make sure Mom's name got in the hopper.
NARRATOR: As a judge, O'Connor had never heard a federal case.
Nevertheless, her name already was at the top
of the Reagan Justice Department's shortlist.
In fact, Sandra had been recommended repeatedly--
by both Arizona senators, Goldwater and DeConcini;
by Bill Rehnquist;
and by Warren Burger, the Chief Justice of the Supreme Court,
who'd met Sandra through mutual friends
on an excursion to Lake Powell the previous summer
and had been thoroughly charmed by her.
EVAN THOMAS: The Reagan team came down to see her--
Ken Starr and John Rose from the Department of Justice.
And it was 100 degrees, and she gave them
salmon mousse-- I remember John Rose said,
"A hundred degrees and salmon mousse-- how does she do it?"
All while answering their questions about legal issues
with great confidence,
kind of a humble confidence, but confidence.
And she absolutely wowed them.
REAGAN: Ladies and gentleman...
I have a statement to make.
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.
She is truly a person for all seasons.
NARRATOR: O'Connor's nomination led every news broadcast in the country.
REPORTER: Reagan will nominate the first woman
to sit on the United States Supreme Court.
President Reagan made the historic announcement...
NARRATOR: And women everywhere thrilled to a sense
of new possibilities.
REPORTER: ...that he has chosen a woman.
MCGREGOR: I was actually driving to work, and on my car radio
I heard who it was that he had nominated.
And another barrier fell.
And I just burst into tears.
I pulled my car off to a side street
and just sat there and cried for a while
until I could get back under control and drive to work.
MURRAY: I remember my mother said, "Girls can be judges now.
"When I was a girl,
"I was told I could only be a teacher or a nurse.
This means you can do things that I never dreamt of doing."
This is a momentous day in my life and the life of my family.
And I'm extremely happy and honored
to have been nominated by President Reagan.
If I am confirmed in the United States Senate,
I will do my best to serve the Court and this nation
in a manner that will bring credit to the president,
to my family, and to all the people of this great nation.
NARRATOR: O'Connor later would insist that when Reagan called
to say the nomination was hers, her heart sank.
She doubted her ability to do the work, she told her husband,
and dreaded so changing their lives.
John, faced with the prospect of leaving
a well-established practice and a city that he loved,
had no such qualms.
MCGREGOR: What would have been very difficult
for most men in 1981
did not seem to be that difficult for John.
He saw it, I always thought, as a challenge,
not as a problem.
I don't think John ever had any doubt
that she could do anything that she wanted to do.
She's always been very competent and articulate.
Earlier in our marriage, fewer people knew that.
Now more know it.
REPORTER: Scott O'Connor, the oldest of her three sons,
says he's proud his mother received the nomination.
I think we've all talked about it
or been told about the possibility over the years
but never thought of it very seriously until just the last,
you know, few short days.
SCOTT O'CONNOR (interview): Lines of news vehicles up and down our street.
Everybody waiting outside with cameras
ready to flash if anybody made an appearance.
Every magazine cover had her on the front.
Every newspaper had her on the front.
The congratulatory calls, you know, were coming in like crazy.
And nobody's prepared for that.
EVAN THOMAS: She knew almost nothing about constitutional law.
She was a state lawyer.
As a state Court of Appeals judge,
she dealt with state issues.
And her least favorite course at Stanford Law School back in 1952
had been constitutional law.
She had to jump in absolutely cold.
NARRATOR: O'Connor's nomination had sparked immediate controversy.
At issue: her support for the E.R.A. and, more ominously,
positions taken in the Arizona Senate
that suggested she was in favor of abortion.
MURRAY: She had voted
in 1970 for a bill that was intended
to decriminalize abortion in the state.
It was never passed; but it came up,
and it became something of an issue.
REPORTER: The self-described Moral Majority
opposed President Reagan's choice, calling it a mistake
and saying that church people would desert him in droves.
GREENHOUSE: There was a big right-to-life movement in Arizona
and she had not played with them.
And so, the right-to-life crowd didn't trust her.
The pro-choice crowd didn't necessarily trust her, either.
Nobody knew what her views were,
but all the right-to-life crowd knew
was she wasn't marching along with them.
MAN: The whole reason the right-to-life movement exists
is because abortion was legalized
by the U.S. Supreme Court.
This is an appointee to that very court.
This is the most important appointment
that President Reagan could make.
We feel that it is one that we simply cannot tolerate.
NARRATOR: The objection to O'Connor came from one faction
of the Republican Party; but it signaled a dramatic shift.
The last nominee to the Court-- in 1975,
two years after Roe v. Wade-- had been confirmed
without being asked a single question about abortion.
GREENHOUSE: The 1976 Republican Party platform said, basically,
we're a party with many views on abortion.
It wasn't until 1980, the platform that Reagan ran on,
seven years after Roe, that the party said,
"We are committed to the right to life,
and we're committed to finding judges
who will fully respect the right to life,
which, of course, was code language
for who would overturn Roe against Wade.
PERLSTEIN: The idea that judges
should be chosen for their views on "human life,"
this broke a norm-- when did it become that the litmus test
was abortion instead of fidelity to the Constitution?
But things were very much in flux in 1981.
There's a real kind of civil war within the party
over whether this is direction they should go.
If it's going to take a fight, they're going to find old Goldy
fighting like hell.
I'm probably the most conservative member of Congress,
but I don't like to get kicked around
by people who call themselves conservatives
on a non-conservative matter.
NARRATOR: President Reagan casually dismissed
those opposed to his nominee as fanatics,
but he fretted about them nonetheless.
The Republicans' one-vote majority in the Senate
included at least a dozen far-right conservatives.
SENATOR CHARLES GRASSLEY: We have been
having a Supreme Court that has been very activist,
usurping authority basically left to the Congress
of the United States, so I'm concerned whether or not
this nominee is a person who's going to be an interpreter
of the law or whether it's going to be a person
who wants to make the law.
REPORTER: Judge O'Connor arrived in Washington late yesterday
for a round of informal meetings with senators
who will be voting on her confirmation.
NARRATOR: What the president hadn't fully grasped, however,
was the force of O'Connor's personality,
which, over the course of five days in July,
she unleashed upon no fewer than 39 senators.
She dazzled them all.
REPORTER: Senator, now that you've finally met the lady...
Well, I'm terribly impressed.
I've known her for ten seconds now.
HIRSHMAN: She was a Republican nominee
from a very conservative president.
She went to call on Ted Kennedy, the liberal lion of the Senate.
And she walked into his office and reached out her hand
and looked at him and said,
"Senator Kennedy, how's your mother doing?
He never forgot it.
She was fantastic with powerful men.
She made powerful men feel like
they were the only person in the room,
and they just flipped.
GRASSLEY: So I think what I saw in this lady,
besides being a very down-home-type person
that I appreciate very much, a very personable person,
I see a person who is going to exercise judicial restraint.
HIRSHMAN: She did what she always does.
She figured out where the lines of power lay.
She educated herself brilliantly
about the questions that she would be asked.
She was perfectly well prepared,
and utterly attuned to each individual's emotional needs.
Judge, (indistinct). Congratulations.
Well, thank you.
NARRATOR: In the end, O'Connor's hearings in September
were more spectacle than substance,
the outcome all but predetermined,
if not preordained.
The final vote to confirm was 99 to zero.
THURMOND: I now declare that she has been approved
by this committee overwhelmingly.
We now stand adjourned. (bangs gavel)
REPORTER: Democrat joining Republican,
conservative joining liberal,
and unanimously approved Arizona Judge Sandra Day O'Connor
as the first woman to sit on the Supreme Court.
NARRATOR: The confirmation of a woman
had put every politician in the room
on the right side of history
and exactly the right sort of woman on the bench.
As one female columnist noted:
"O'Connor is good looking
"without being alienatingly beautiful
"and bright without being alarmingly intellectual.
She is an achieving woman without an edge."
JOHNSON: Sandra Day O'Connor was a savvy political pick.
Here's this woman who looks like she could be on the P.T.A.
She was not someone who was about to overturn the apple cart
and allow men to be in a position
where they would have to defend themselves.
REPORTER: How do you feel today going to work?
Oh, I feel fine; but I'd like to see the oncoming traffic.
REPORTER: Justice Sandra Day O'Connor took her seat
on the Supreme Court today,
the first woman justice in the 191 years of the Court.
NARRATOR: Justice O'Connor was sworn in on September 25, 1981--
one week before the first Monday in October,
when, by tradition, the High Court's session begins.
REPORTER: As spectators applauded, Mrs. O'Connor emerged
with Chief Justice Burger to pose for photographers.
She said her robe, which is shorter than those usually worn
in federal courts, was the one she used in Arizona
and she had no intention
of replacing it until it wore out.
I'll buy a new one eventually if this one gets frayed.
NARRATOR: She was the lone woman among eight men--
and the two previously known to her
offered not a word of welcome or wisdom once she arrived.
REPORTER: Looks good, beautiful.
REPORTER: Mrs. O'Connor... Yes?
MAN: Justice O'Connor.
REPORTER: Justice O'Connor, sorry.
NARRATOR: "The Court is large, solemn.
I get lost at first," O'Connor confided to her journal.
"It is hard to get used to the title of 'Justice.'"
EVAN THOMAS: Nobody's expectations
were greater than her own.
One of her favorite expressions was, "It's good to be first,
but you don't want to be the last."
She knew that if she blew it,
there weren't going to be any more female appointments
for a long time.
SCOTT O'CONNOR: She had enough self-confidence that she was willing to take it,
but that didn't mean she wasn't scared of the first term,
the first few cases, the first few weeks.
OSCIE THOMAS: Initially, it's rocky.
She is there at her first oral argument.
She knows that people are watching her.
REPORTER: Mrs. O'Connor took her seat for the opening argument,
a case about oil leases.
Thirty minutes later, she asked her first question,
though the lawyer seemed not to hear
her efforts to interrupt.
OSCIE THOMAS: She starts to ask a question,
and the lawyer at the podium says, "Let me finish."
That is not the way Supreme Court practice works.
That evening in her journal, she wrote, "I felt put down."
EVAN THOMAS: There was the expectation
that as a woman,
she would keep a low profile.
This was the expectation on the Court itself.
When she got there,
the Chief Justice of the United States gave her a memo,
a psychological study, about what happens
when a woman enters a group of male leaders.
The report found that it was unsettling,
off-putting, to the male leaders, and therefore,
the woman should be passive.
Justice O'Connor couldn't believe it.
But she just rolled with it and she set about proving herself.
NARRATOR: With the Court slated to hear 167 cases that first term,
the work of a justice would've been challenge enough;
but as the first woman on the Supreme Court,
O'Connor was also a symbol.
I used to kiss you on the cheek,
but I'm afraid to now that you're a Supreme Court justice.
Oh, come on. (chuckles)
NARRATOR: Continuously trotted out for White House photo-ops
and swearing-in ceremonies...
Raise your right hand...
and repeat the oath after me.
NARRATOR: Asked to give speeches all over the country
and invited to every party in town,
she found herself plunged
into a curious sort of celebrity.
During her first term alone, she received some 60,000 letters
more than any other justice in history.
SANDRA DAY O'CONNOR: "Dear Justice O'Connor,
"don't be intimidated by all those men
"and especially the Chief Justice.
You all put on your robes the same way."
OSCIE THOMAS: She is inspiring women
around the world,
and warming to this role, not of being a celebrity--
she actually didn't like that--
but of being a role model.
You gonna be a lady lawyer, Beth? Make her mommy rich.
They don't make much money, but they have a lot of fun.
HIRSHMAN: No matter how much
was piled on her plate,
she always managed to do it, work all day at the court
and then go to dinners
and then go and give speeches
and then go to ribbon cuttings.
And people actually thought she had a twin.
My colleagues all greeted me very warmly,
and I think they've...
they've adjusted very well to my presence.
SCOTT O'CONNOR: She was thrilled
that she represented opportunities
that she didn't have earlier in her career, as the one
that broke the glass ceiling onto the Supreme Court.
Boom, overnight, that changed everything.
NARRATOR: Meanwhile, as O'Connor settled into the actual work
of the Court, partisans on both sides of the aisle
scrutinized her every move.
GREENHOUSE: She thought of herself as a cowgirl.
And she comes to Washington in mid-life,
in a bright spotlight,
a figure of history the minute she took that oath,
exposed to controversies, doctrines,
ideas that she had never had occasion to enmesh herself in.
NARRATOR: The docket in those days was littered
with the judicial fallout of Supreme Court decisions
handed down in the 1950s and '60s,
by a liberal majority under Chief Justice Earl Warren--
rulings that had revolutionized
constitutional law and drawn the lasting ire of conservatives.
GREENHOUSE: The Warren Court pushed a number of hot buttons
on the American landscape.
One was race.
They were the court that ruled
that racial segregation was unconstitutional.
Another was religion.
It was the Warren Court that said
you cannot have organized, official prayer
in the public schools.
And then the one was crime.
MURRAY: You saw incredible movement on criminal procedure,
the rights of criminal defendants, Miranda v. Arizona,
"You have the right to remain silent."
We'd never seen anything like this.
SCOTT THOMAS: A whole series of liberal decisions that expanded
federal power into the states
and upheld individual rights and group rights.
REPORTER: Good evening-- in a landmark ruling,
the Supreme Court today legalized abortions.
The abortion decision in 1973-- that was after Warren left,
but it was part of the same progression.
All of this was considered to be too much change
too fast to a large section of the population
that wanted to make the Court more conservative.
NARRATOR: At first,
O'Connor seemed in step with the cause.
Forging an alliance with Justices Burger and Rehnquist,
the Court's leading conservatives,
she quickly emerged as an advocate for
the "new federalism"-- a phrase coined by Ronald Reagan
to describe the effort to return power to the states.
She seemed generally in favor of the death penalty, pro-business,
and against public policies based solely on race.
GREENHOUSE: From her first several years on the Court,
one would have thought,
here's somebody that's going to be
a rock-rib Republican conservative judge.
Whenever some affirmative action is taken to help Employee A,
you may hurt at the same time Employee B.
And the employer could be liable to the minorities
for apparent discrimination on the one hand.
And on the other hand,
the employer may be liable
to non-minorities if affirmative action is taken.
So that's kind of a tough road to walk, isn't it?
GREENHOUSE: She was very, very skeptical of affirmative action.
She was way over on crime.
She was skeptical of Roe against Wade.
NARRATOR: What was also clear, however, was that O'Connor was cautious--
and that she did not, as one journalist noted,
"Fit neatly into the conservative box."
REPORTER: She seems to have all the makings
of a law-and-order justice.
But there are also indications
that she can be receptive to new judicial ideas
and sympathetic to society's underdogs.
EVAN THOMAS: Early in Justice O'Connor's time, her second year,
a case comes before the Supreme Court,
a very important case in gender discrimination.
COURT OFFICIAL: We will hear arguments next
in Mississippi University for Women against Hogan.
MCGREGOR: A man wanted to attend
the Mississippi University of Women Nursing School.
It was close to where he lived.
It was a public university, but it was only for women.
NARRATOR: One of a series of cases strategically brought
to challenge gender discrimination--
and thereby expand women's rights--
the Hogan case struck a particular chord for O'Connor.
SANDRA DAY O'CONNOR: Mr. Gholson, you have referred to the demand
for a single-sex institution as being its justification.
Would you make the same argument
if there were a demand for an all-white
publicly funded education?
EVAN THOMAS: At the Supreme Court conference, the vote is tied;
four justices say yes, four justices say no.
As the junior justice, O'Connor has the last vote.
It's up to her.
She's the fifth vote to let men in.
NARRATOR: O'Connor was assigned to write the opinion
for the liberal majority.
GREENHOUSE: O'Connor ruled that the exclusion of men
from a nursing program was based on stereotype,
and it couldn't stand as a matter of equal protection
under the Constitution.
That showed the world that,
although she had never presented herself as a feminist,
that the first woman on the Supreme Court
was going to make a difference
when it came to sex discrimination.
NARRATOR: Then, in a move that would become a kind of signature,
O'Connor narrowed the ruling to the facts of the case.
HIRSHMAN: She added a footnote saying
that this decision would only apply to the nursing school,
even though all of the reasoning of the opinion on its face
applied to any university.
It was the narrowest possible holding.
MCGREGOR: She regarded that as the appropriate approach
for the Court to take.
You decide the issues that the Court accepted,
that's the way that the Court moves the law along.
VIET DINH: Justice O'Connor did not think
that it was the role of the Court,
to create revolutions, to lead reforms,
but rather to serve as a limited check
on the powers of the government.
If change is to be had,
it is to be done through the legislative process.
HIRSHMAN: So her judicial philosophy was,
you don't know if you're going to do harm or good
if you make too large of a ruling.
Make the narrowest ruling
to resolve what you have in front of you,
and stay within the sweet spot of America's belief system.
DINH: She was a very effective politician
well before she was appointed to the Supreme Court.
And she had faith in that democratic process
and the votes of the people.
BILL MOYERS: Am I wrong in thinking
that your experiences
in the politics and law of Arizona
more strongly shaped your constitutional views
than being a woman?
Oh, I don't know-- I leave that for other people to say.
I don't know.
But as I read your opinions I come, time and time again,
upon your reference to the states,
much more so than I do any, what might be called,
I'm product of state government.
And I think that it is appropriate that we try
strong and capable state governments
because I still tend to believe that the best government
is that government closest to the people.
EVAN THOMAS: On the really tough cases,
the big social issues like affirmative action
and abortion, religion,
Justice O'Connor's view was that
the Supreme Court is not the last word.
MOYERS: Nothing's ever settled on this Court
for sure, is it? No,
it's never an absolute end to any issue.
It's more a process of a continuing dialogue.
...the court and the Congress
and the nation as a whole.
REAGAN: Today, I received with regret
Chief Justice Burger's letter
formally notifying me of his retirement.
And I am pleased to announce my intention to nominate
William H. Rehnquist
as the new Chief Justice of the United States.
Upon Justice Rehnquist's confirmation,
I intend to nominate Antonin Scalia,
currently a judge of the United States Court of Appeals,
for the District of Columbia Circuit,
as Justice Rehnquist's successor.
REPORTER: Sir, what impact do you think
this will have on the abortion issue,
perhaps the most emotional issue facing the court?
It probably won't surprise you when I tell you
I'm not going to take any questions now.
Hello, Mr. President, good to see you again.
Good to see you.
NARRATOR: When Antonin Scalia first took his seat on the bench in 1986,
O'Connor found him to be a breath of fresh air.
"Nino Scalia will have a dramatic impact here,"
she wrote in her journal.
"He is brilliant, confident, skillful, and charming."
Before long, however,
she'd settled on an alternate descriptor: abrasive.
GREENHOUSE: Justice Scalia was a person who thought that
much of modern constitutional law was wrong.
He had an agenda, and it was to set things right by his view,
his view that the only legitimate method
of constitutional interpretation was to try to figure out
what the original meaning would have been
to the 18th century founding fathers.
NARRATOR: A fulfillment of the Republican Party's promise
to appoint anti-abortion judges at all levels,
Scalia saw the law in black and white.
O'Connor was inclined toward the grey.
Once, while discussing an affirmative action case
in which a woman bus driver had been promoted
over a more qualified man,
Scalia launched into a diatribe
against hiring practices based on race or sex.
O'Connor cut him off midstream:
"Why Nino," she deadpanned, "how do you think I got my job?"
GREENHOUSE: Scalia was a justice of rules and not of standards.
A rule is you're either in or you're out.
A standard is, wow, you really have to think about this--
and Sandra O'Connor was much more a justice of standards.
DINH: Justice O'Connor
is not a person who says, "I am a liberal,
therefore, I think X."
Or, "I'm a conservative, therefore, I think Y."
And so, people who expect her to hew a line
will of course be naturally disappointed,
because it's not her line.
NARRATOR: Sex discrimination was on the Court's docket
as the new term got underway in October 1988,
along with cases involving racial preferences,
the death penalty, and abortion.
O'Connor foresaw a great deal
of wrangling with Scalia ahead.
Then came the call from the doctors.
The news was not good:
a biopsy she'd had less than a week before had found cancer,
a tumor in her breast.
To her secretary, O'Connor dismissed it as "an annoyance."
But after consulting with several specialists
and weighing their contradictory advice,
a second biopsy suggested it would be far more than that.
The cancer had spread.
O'Connor was 58 years old.
"I felt weak," she recalled much later.
"I felt very emotional.
I was hearing things I didn't want to hear."
MAN: She is surely the ideal...
EVAN THOMAS: It was a horrible shock.
But I think it was even tougher for her
because she had this high level of perfection.
She felt that she couldn't do things halfway.
She had to do things all in, always the best.
She was always on.
And don't worry, this is not a speech.
It's on the program billed as "remarks" and that's all it is.
SCOTT O'CONNOR: She had never had a moment's thought
of her own mortality.
And all of a sudden, she got hit with a two-by-four
in the middle of her career peak as a Supreme Court justice.
How unfair is that? Why me?
And it wasn't so much feeling sorry for herself,
I think it was more the shock of it.
"How could this happen?
"This can't happen.
I have all these things I need to do."
It was devastating.
NARRATOR: O'Connor careened between hopelessness and terror.
"I was stunned," John wrote in his diary
after one particularly tearful episode.
"It was the first time I'd seen her lose it emotionally."
MCGREGOR: She was always in control.
And suddenly this was a situation
where she could make decisions about how to approach it,
but a lot of it was just outside of her ability to influence.
HIRSHMAN: She was frightened and depressed.
And she called one of her woman friends and confided in her.
And she was surprised at the lengths
that people went to, to comfort her.
She was emotionally very self-sufficient.
NARRATOR: On October 31, ten days after undergoing a radical mastectomy,
O'Connor returned to the bench to hear oral arguments.
Chemotherapy was scheduled for Fridays,
so the most intense bouts of nausea
would coincide with the weekend.
And on the Saturday evening after her first treatment,
she insisted on going to a dinner dance
at the Sulgrave Club.
(music playing, applause)
EVAN THOMAS: Sandra O'Connor's view towards pretty much everything was,
It was not her nature
ever to be a victim.
MCGREGOR: Once she had decided she could do her job as a justice,
she didn't want people to be
watching to see whether somehow she couldn't.
And of course, she knew they did
when she came onto the bench wearing a wig.
ANNOUNCER: ...the Honorable Sandra Day O'Connor,
who will administer the oath of office
to the vice president-elect, James Danforth Quayle.
MCGREGOR: She knew everybody was watching to see whether she was okay.
...that I will support and defend...
...that I will support and defend...
...the Constitution of the United States.
SANDRA DAY O'CONNOR: The best thing about all of this
was that I had a job to go to.
I can't tell you how much that meant to me.
NARRATOR: Years later,
speaking publicly about her cancer for the first time,
O'Connor would recall the speculation
that had swirled around her that fall as she clung to her work,
desperate for a sense of normalcy.
The worst was my public visibility, frankly.
There was constant media coverage.
"How does she look?
"When, when is she going to step down
and give the president another vacancy on the Court?"
You know, "She looks pale to me, I don't give her six months!" (laughter)
SCOTT O'CONNOR: She wanted to be defined by
the job she did on the bench,
not by something that just happened to her.
CHANT LEADERS: Pro-life!
CROWD (responding): Pro-life!
NARRATOR: They had marked the January anniversary of Roe v. Wade
with a demonstration every year since 1974,
and their numbers had grown steadily larger.
In 1989, some 60,000 turned out
for the march along the National Mall
and the rally afterward on the steps of the Supreme Court.
(chanting): Pro-life! Pro-life!
NARRATOR: Had O'Connor been in her chambers that Sunday,
she could have seen them from her window.
(cheers and applause)
MAN: I can feel it, I can hear it: victory is coming!
NARRATOR: In a nod to the rising political power of the Christian right,
the newly inaugurated president,
George H.W. Bush-- a one-time supporter
of Planned Parenthood--
conveyed his solidarity via loudspeaker.
BUSH: I think the Supreme Court's decision in Roe v. Wade
was wrong and should be overturned.
(cheers and applause)
PERLSTEIN: George H.W. Bush is a weather vane
for this complicated transformation going on
in the Republican Party.
You could see him sticking his finger in the wind,
seeing which direction the wind is blowing,
and deciding that he has to cast his lot
with the right wing of this particular question.
And a pro-lifer is born.
CROWD (chanting): Choose life! Not death!
HIRSHMAN: I always say, Sandra Day O'Connor
had reached her sell-by date
by the time she got on
the Supreme Court of the United States,
because she represented a Republican Party
of the libertarian West and of the former support
for the Equal Rights Amendment and for abortion rights
that was already out of fashion.
NARRATOR: Justice O'Connor famously avoided the subject of abortion.
If asked when life began, she tended to deflect with a joke:
"When the kids are out of college and the dog dies."
But the backlash against Roe v. Wade
lately had turned violent
and O'Connor was steeling herself for what lay ahead.
REPORTER: On April 26, the Court will consider a law
the Missouri legislature passed three years ago.
REPORTER: That law says public funds can't be used for abortions
or even to advise women about abortion.
Missouri's law also declares that life begins at conception.
REPORTER: With the support of President Bush,
Missouri is asking the justices to expressly overturn the 1973
Roe v. Wade decision
and return abortion to local control.
FRANK SUSMAN: This is clearly the most
serious threat to abortion rights since 1973.
REPORTER: So it is simply unknowable at this time
what the justices will do.
NARRATOR: The Court had considered abortion several times already
during O'Connor's tenure, and had struck down
similarly restrictive state laws on two occasions,
rulings with which the then-junior justice
Arguing in a 1983 dissent
that the state had an interest in the fetus
O'Connor had signaled her willingness
to allow restrictions, so long as they
did not impose an "undue burden" on a woman's right to choose.
HIRSHMAN: The standard of "undue burden" was cooked up
by the Reagan Justice Department in an attack on abortion rights.
O'Connor adopts it for her own,
and then she just keeps applying it.
She would ask in each case, "Do these restrictions
put an undue burden on a woman seeking an abortion?"
And in the first many cases that she voted on,
she approved of every restriction.
She kept finding them not too bad.
GREENHOUSE: People on the right were cheering for her.
We're hopeful and confident.
GREENHOUSE: Until 1989, the next big abortion case.
MAN: Every one of us should accept the Court's willingness
to reexamine that flawed Roe v. Wade decision.
Everybody assumed that O'Connor
was going to be also fully for undercutting Roe
because of her earlier dissent.
NARRATOR: The Missouri case, Webster v. Reproductive Health Services,
would be heard by a changed Court--
with Reagan appointees in seats
once occupied by supporters of Roe.
REPORTER: The newest justices, Scalia and Kennedy,
have never voted in an abortion case,
but are thought to oppose Roe.
That leaves Sandra Day O'Connor
with the pivotal vote.
She's known to favor more state authority to regulate abortions,
but she's never said that women
don't have a constitutional right to abortion.
EVAN THOMAS: She hated being in the middle of the abortion storm.
She knew how loaded it was.
And, importantly, she wasn't 100% sure
of where she stood on all this.
My body's not a slave...
You have blood on your hands from killing babies-- I don't!
SCOTT O'CONNOR: She got a lot of angry mail on that subject.
WOMAN: You want to kill women, that's what you want to do.
You want to kill women!
SCOTT O'CONNOR: And she got more than anyone, by far.
Ton of pressure.
NARRATOR: O'Connor was wary of wading into a debate so polarized,
and troubled by the unsubtle directive
the Bush White House had issued to the Court.
For once, the opinion from her chambers was slow to come.
Ladies and gentlemen, Webster!
NARRATOR: And when finally it did, she had refused to take a side.
She upheld many of the restrictions
in the Missouri law,
but she would not go all the way to overturn Roe.
MURRAY: She may have personally been skeptical of abortion,
but she recognized that people
had come to rely on these rights.
And she wasn't willing to sweep them away.
JOHNSON: When you say, "Yes, of course I support abortion,
"but I will allow Virginia and Alabama and Texas
"and North Carolina and all these different states
constrain access to abortion,"
then you get to have it both ways.
She basically opens the door
for people to go back to the drawing board
and bring this case back in two or three years
with what they think might be stronger evidence.
NARRATOR: To Scalia, it amounted to an abrogation of the Court's duty,
and he excoriated the majority for what he called its
O'Connor's opinion, he fumed in his own,
"cannot be taken seriously."
GREENHOUSE: For one justice to write an opinion
saying something like that about another justice--
some people have said that
Scalia's public treatment of her was so aggravating to her
that it helped push her away
from the conservative side, and notably more toward
the middle of the Court.
It certainly became visible to the public
in that very high-profile case.
NARRATOR: Inevitably, the issue returned to the Court in 1992,
with a challenge to a law out of Pennsylvania,
the most restrictive yet.
REPORTER: The Pennsylvania law the Court will consider
requires women wanting an abortion to wait 24 hours,
REPORTER: Requiring parental consent for minors,
and, most controversial,
requiring that the husband be notified
before his wife receives an abortion.
HIRSHMAN: Their intent was to make it impossible
for women to get abortions.
And the way to do that
was to just keep adding restrictions,
and seeing whether the old white men
and Sandra Day O'Connor on the Supreme Court
would think that it was not too bad
to make a woman go over that gauntlet or the next gauntlet.
SANDRA DAY O'CONNOR: Now, the provision does not require notification
to a father who is not the husband, I take it.
ATTORNEY: That's correct...
SANDRA DAY O'CONNOR: Or notice if the woman is unmarried.
ATTORNEY: It only applies to married women.
SANDRA DAY O'CONNOR: So what's the interest?
To try to preserve the marriage?
ATTORNEY: There are several interests.
The interest, of course,
in protecting the life of the unborn child.
SANDRA DAY O'CONNOR: Well, then, why not require notice to all fathers?
NARRATOR: Despite O'Connor's obvious reservations at oral argument,
Planned Parenthood v. Casey
was widely expected to end the federal right to abortion.
Two Bush appointees had joined the Court
since the Webster case,
Justices Souter and Thomas,
and with or without O'Connor,
the majority now seemed likely to skew right.
EVAN THOMAS: In conference, in the Court's secret, private conference,
there are five votes to undo Roe v. Wade.
It looks like abortion is finished.
But it isn't.
HIRSHMAN: Nobody knows where it came from.
People are thinking it was maybe Souter
who went to his friend Kennedy and said,
"We don't want to do this."
And they knew that O'Connor would be a third vote
for not taking the-- again, for not taking the extreme,
NARRATOR: The joint opinion the three cobbled together
reversed the expected outcome of the case,
shifting the majority to the left.
O'Connor wrote the nuts and bolts,
which reaffirmed the right to abortion
and simultaneously established "undue burden"
as the new standard by which restrictions would be judged.
The only Pennsylvania restriction to be struck down
under that standard was the requirement
that married women notify their husbands.
HIRSHMAN: Whatever O'Connor didn't like was undue.
She knew what it was like to be a woman,
a particular kind of woman.
She could envision traveling, waiting overnight,
costing more and more-- run that gauntlet--
because she was a rich white woman
who had a will of iron and could do anything.
three Reagan-Bush appointees stabbed
the pro-life movement in the back.
Roe v. Wade is dead despite the flimsy stay of execution
that the Court issued today,
and women will not tolerate the loss of those rights.
REPORTER: What both sides want in this fight over abortion rights
is an absolute victory,
one that will not come for the anti-abortion movement
unless Roe vs. Wade is struck down
and abortion is outlawed.
HIRSHMAN: When push came to shove in 1992, Sandra Day O'Connor voted
to preserve Roe v. Wade.
Was it glue that held the fractious society together?
Or was it a Band-Aid on cancer?
The question of what was "undue" was gonna be used as a hammer
against abortion rights as soon as possible.
On the other hand,
women have had some remote right to abortion
since the decision in Casey, and that's not nothing.
(cheers and applause)
BUSH: Thank you very, very much.
NARRATOR: It was a blow to O'Connor when Bush lost the presidency.
The people have spoken...
NARRATOR: And not simply because
she thought Republicans were better at governing.
I just called Governor Clinton over in Little Rock
and offered my congratulations...
NARRATOR: The Bushes were friends--
she and Barbara played tennis regularly-- and she was sorry
to see them leave Washington.
Their absence was still palpable two months later,
when it became clear that Bill Clinton,
the first Democrat to occupy the White House
in more than a decade,
was to have the privilege
of filling a vacancy on the Supreme Court.
CLINTON: As all of you know, I received a letter
from Justice White,
expressing his intention to resign from the Court
at the end of this term.
SANDRA DAY O'CONNOR: When there is a change in the Court,
we all feel it very deeply.
I remember Justice White
telling me that it isn't just a change of a justice,
the Court itself changes.
I, Antonin Scalia...
NARRATOR: O'Connor had welcomed four new colleagues
during her dozen years on the bench.
NARRATOR: But unlike the previous arrivals, this one was a woman.
...do solemnly swear...
I, Ruth Bader Ginsburg, do solemnly swear...
HIRSHMAN: O'Connor was delighted,
even though Ginsburg was a Democrat.
DINH: Justice O'Connor was very, very open
and sometimes emotional about the fact
that it had been very lonely for 12 years.
And she welcomed very much
Justice Ginsburg joining the court.
EVAN THOMAS: For one thing, the Court
had not put in a ladies' room near the Court conference room.
GINSBURG: Has the place turned around now that two women are there?
Our robing room since the 1993 term
has a women's bathroom equal in size to the men's.
EVAN THOMAS: Finally, after 12 years, they built a ladies' room.
But more important, it gave her an ally.
GINSBURG: Sandra knew what it was like
to learn the ropes on one's own.
So she told me what I needed to know when I came on board,
not in an intimidating dose,
but just enough to enable me to navigate safely
my first days and weeks.
(cheers and applause)
EVAN THOMAS: Incredibly, Supreme Court advocates
would get confused between them.
So they had these T-shirts made: "I'm Ruth, not Sandra"
and "I'm Sandra, not Ruth."
But it normalized having women on the Supreme Court.
MCGREGOR: She said once that,
"Now instead of being one woman on the Supreme Court,
we were just a court of nine justices."
It makes all the difference to have the extra woman added.
And I think she was just so relieved
that a little of that pressure
of being the only woman went away.
NARRATOR: There would be no more comments in the papers
about what O'Connor wore out at night;
no more columnists calling her the "Supreme Court's Mom";
no more searching essays on her uniquely "feminine" judgment.
Now there was only the work of the Court--
the legal and constitutional questions that,
term after term, shaped the national reality.
it was O'Connor who wielded the pivotal vote.
REPORTER: Sandra Day O'Connor cast
the fifth and deciding vote...
GREENHOUSE: In a lot of issues that people cared about,
there were pretty reliably four on one side,
four on the other side,
and the decision was going to come down
to what Justice O'Connor, um, was going to do.
REPORTER: And Justice O'Connor may cast the deciding vote...
HIRSHMAN: If you could win O'Connor,
then you could win five to four.
EVAN THOMAS: This gave her immense power.
REPORTER: In some of the most contentious cases,
Sandra Day O'Connor often provided
the critical fifth vote.
HIRSHMAN: She hated being called the swing justice.
But that's exactly what she was.
Antonin Scalia had a coherent conservative theory.
Ruth Bader Ginsburg had a coherent liberal theory.
Since she didn't have a coherent legal theory,
and did this case-by-case thing,
trying to be no broader than the facts in front of her,
it was irresistible to try to pull her to your side.
JOHNSON: She wanted to make sure that she was a part of the conversation.
Rehnquist was only going to be on one part of the conversation.
She wanted to be a part of everybody's conversation,
because that's really where you can make the most difference.
As long as I am somebody that everybody feels
that they can make an argument towards,
I can make sure that these issues are brought forth.
NARRATOR: O'Connor voted with the conservatives
to rein in racial preferences in federal contracting,
but stopped short of declaring them unconstitutional.
She voted with the liberals to hold public schools liable
for student-on-student sexual harassment,
then narrowed the decision to cases
where the harassment was severe
and the school clearly negligent.
HIRSHMAN: So she would withhold her vote,
and then she would negotiate with whoever it was
that had been assigned the opinion.
If they were writing an opinion that was too conservative,
she would say, "I'm going to concur
and deprive you of your majority."
Or worse, "I'm going to go with the liberal dissenters."
REPORTER: This was to have been the Rehnquist Court.
Or perhaps the Clarence Thomas Court.
Instead, the shots are being called by Sandra Day O'Connor.
HIRSHMAN: It's a little weird
for a nation of several hundred million people
to be governed by one swing vote.
But that's the power of the modern Supreme Court.
NARRATOR: Term after term,
the Court handed down rulings with O'Connor's stamp--
rulings that nudged the nation one way or another,
but left plenty of room
for the roiling social debates to play out on the ground.
GREENHOUSE: It was a transitional period of a lot of changes in society,
and the Court managed to kind of skate on top of them--
in an O'Connor-ist way, kind of bridging differences
and settling issues through minimalist decisions,
instead of going all the way.
EVAN THOMAS: One of the symbols of the Supreme Court is a turtle,
because that's the law: it moves incrementally.
That was Sandra O'Connor's law.
SCOTT O'CONNOR: This business of moderation she felt
was ultimately a better service to the nation
and the role of the Supreme Court
than trying to come in and swing for the fences
every time you're at the plate.
She was worried that if the Court made a mistake,
how would that reflect on the Court in the future
and the nation's confidence in its judiciary?
NARRATOR: By the 1999 2000 term,
which saw the highest percentage of 5-to-4 decisions in a decade,
and O'Connor in dissent only four times,
the press had taken to calling it "The O'Connor Court."
As one journalist observed,
"19 years after her appointment
"as the High Court's first female justice,
"O'Connor has become,
in today's vernacular, 'The Man.'"
TOM BROKAW: Good evening.
Once again, the long, drawn-out contest
for the presidency is on hold tonight,
awaiting the judgment of the U.S. Supreme Court,
which today had a spirited exchange
with lawyers representing Vice President Gore
and Texas Governor Bush.
NARRATOR: Eventually, O'Connor would come to regret the decision.
As she put it to a reporter more than a decade after the fact,
"Maybe the Court should have said,
'We're not going to take it-- goodbye.'"
REPORTER: An election night without end.
NARRATOR: Instead, in the fall of 2000,
after nearly two decades on the bench,
she found herself confronting a problem
for which there was no nuanced solution.
The presidential election had been inconclusive.
REPORTER: The media called it for Gore,
then for Bush, then for neither.
REPORTER: Gore is leading the popular vote,
but neither candidate has secured
the magic number of 270 electoral votes.
NARRATOR: And for nearly a month,
the nation had been waiting for Florida to break the tie.
REPORTER: The Sunshine State holds the key
to the presidency today for Al Gore.
Election workers there are recounting
nearly six million votes.
That's because only a few hundred votes
separate the candidates in Florida.
EVAN THOMAS: Every voting district had a different standard,
there were the famous hanging chads,
the votes hadn't been counted properly-- it was a mess.
And the Gore forces wanted to have a recount,
and the Bush forces wanted to stop the recount.
So there was a legal challenge.
MAN: Hear ye, hear ye, hear ye!
BROKAW: Did the Florida State Supreme Court
go beyond its authority
when it ordered a statewide recount
of the so-called "under-votes,"
ballots on which no choice for president was detected?
That's the legal issue.
The political consequence, of course,
is what has all of us in suspense tonight.
Will the Court's ruling
send Governor George W. Bush to the White House,
or Vice President Al Gore?
REPORTER: Outside the Court,
Bush and Gore demonstrators duel,
trying to out-yell each other.
But inside the courtroom,
none of that noise could be heard--
just the voices of the intense 90-minute oral argument.
SANDRA DAY O'CONNOR: Would the starting point be
what the secretary of state decreed for uniformity?
Is that the starting point?
ATTORNEY That is correct...
NARRATOR: As the justices probed
the practicalities of the recount
and struggled to grasp the standard
for counting the disputed ballots,
O'Connor's impatience was plain.
SANDRA DAY O'CONNOR: Well, why isn't the standard the one
that voters are instructed to follow, for goodness' sakes?
I mean, it couldn't be clearer.
I mean, why don't we go to that standard?
OSCIE THOMAS: She did not like mess.
And there is a clock ticking, a December 12 safe harbor date,
which is coming up now
and the country was getting increasingly anxious.
NARRATOR: "We've made our decision,"
O'Connor told her son the next morning.
"And half the country's going to hate me."
NEWS ANCHOR: The U.S. Supreme Court effectively
handed George W. Bush the presidency last night.
In a 5-to-4 ruling,
the Court decided not to allow any further counting
of disputed votes in Florida.
The majority said there was no constitutionally acceptable way
to continue the recount because of electoral deadlines.
EVAN THOMAS: All five conservatives voted
to stop the recount and in effect elect George Bush,
and the four liberals wanted to keep the recount going,
which might have had the chance of electing Al Gore.
It looked like a raw, political power play.
However, the story is more complicated than that.
Justice O'Connor was looking down the road here.
The Republican secretary of state
had already certified a slate of electors.
What happened if Al Gore won a recount?
There would be a second slate of electors.
If a state has two sets of electors, it goes to Congress.
The Senate has one vote and the House has one vote.
The House was going to be Republican,
the Senate was going to be Democratic-- a tie.
Under the law, the tie is broken by the governor of the state.
His name was Jeb Bush.
REPORTER: Florida Governor Jeb Bush now says
he would sign legislation
awarding the state's presidential electors
to his brother.
EVAN THOMAS: O'Connor could see it was going to look like a banana republic,
that the guy's brother was going to elect him.
OSCIE THOMAS: She could tell that George Bush
was going to be president in the end
because of the way the process worked.
And she felt that it was better for the country to end it now
and not let it drag on into January.
JOHNSON: What is so problematic is that
years later, Sandra Day O'Connor basically admits, "Yeah,
we probably shouldn't have gotten involved."
Why did you get involved?
The fact that you have these kinds of doubts
a decade or so later
is not comforting to the majority of Americans
that didn't want George Bush as president.
NARRATOR: The press was merciless.
Friends were worse.
As one wrote O'Connor,
"I was shocked, along with millions of others,
"by the naked partisan power play executed
"by a narrow majority of the Court.
"And I was profoundly disappointed that you chose
to be a part of this."
REPORTER: And the Court's own four dissenters
were especially stinging in their criticism,
Justice Breyer saying
it could undermine public confidence in the Court.
NARRATOR: O'Connor did her best to move on.
The family holiday card that season led with a wish:
"May your New Year be free of hanging chads."
But Bush v. Gore would not be so easily shrugged off.
ROSE: Did the Court serve itself
well in that decision?
I'm not the one to ask that.
I'm only smiling because
I know you don't like to talk about it.
I don't like to talk about cases generally.
I'm not... Yeah, but that one was so controversial
and so-- got so much attention. Yes, yes, it did.
And some say it is the Court determined the election.
They do say that.
Yes, some say that, right. (audience laughter)
NARRATOR: O'Connor had planned to retire in 2000
to spend time with John,
her partner on the dance floor, on the tennis court,
John, who had put her career ahead of his own.
He'd begun to forget things sometime in 1996:
he lost the thread in the middle of the funny yarns
he once so famously spun at parties,
lost his wallet, lost his way.
The Alzheimer's diagnosis had come
just months before the election,
and the clock was ticking now on the time they had left.
But having just voted to install a Republican in the White House,
O'Connor thought it unseemly to follow through.
There would be no more talk of retirement.
HIRSHMAN: She was, at the end of the day, a Republican.
She came from the Republican political establishment.
So I think that
her every instinct was to hope for the Republican Party
to win the elections,
and to pick the judges, and to govern.
And I think she did not realize
how much the party had changed.
NARRATOR: Five months after Bush took office,
the "New York Times Magazine" published a profile
of Justice O'Connor--
perhaps the least flattering that had ever appeared in print.
Accusing her of "judicial imperiousness,"
the piece railed against the justice's
famously narrow opinions, which, it noted,
"have the effect of preserving her ability
to change her mind in future cases."
O'Connor was displeased,
in part because she thought the cover image
made her look like George Washington.
Mainly, though, it was that she disagreed:
where her critic had perceived a flaw,
the justice, ever confident of the democratic process,
instead saw virtue.
SANDRA DAY O' CONNOR: We have a provision for,
in the Eighth Amendment,
dealing with cruel and unusual punishment
and saying that's unconstitutional.
Now, our ideas of cruel and unusual punishment
when the Constitution was written
may have been included people, putting people in the stocks
so their necks and their hands were bound,
and you leave them out there in the hot sun
for God knows how long, or burning them at the stake.
NARRATOR: Over the previous decade,
as new appointments had moved the Court to the right,
O'Connor had drifted incrementally to the left.
But in the wake of Bush v. Gore
and the terrorist attacks of 9/11,
the shift would accelerate.
GEORGE W. BUSH: Either you're with us
or you're with the terrorists.
REPORTER: This is a major new policy the president announced last night,
a significant expansion in the scope of the war on terrorism.
GEORGE W. BUSH: Detainees will not be treated as prisoners of war.
They're illegal combatants.
REPORTER: President Bush said the Geneva Conventions
on prisoners of war would not apply.
Al-Qaeda is not a known military.
JOHNSON: George Bush ran as this guy
who was going to be a compassionate conservative.
But he got in the office
and he legislated like a far-right president.
And that's the kind of thing
that Sandra Day O'Connor didn't like.
GREENHOUSE: She didn't like the rhetoric
that was coming out of the Republican Party.
It was really counter to her way of being in the world.
MCGREGOR: She didn't like when she saw things veering away
from the ideal of democracy and the way the country should run.
NARRATOR: Dismayed by what she saw
as executive overreach,
alarmed by the threat to civil liberties
and the erosion of basic civility,
O'Connor demonstrated her growing distance from
the Republican agenda by casting her crucial vote against it.
(cameras shutters clicking)
At times, she even reversed long-held positions,
joining with the liberals to strike down a death penalty law
that allowed the execution of the mentally disabled,
and to declare criminal sodomy laws unconstitutional.
REPORTER: The law of the land
will never be the same.
Homosexual conduct is no longer a crime.
NARRATOR: And in 2003,
after decades of mostly voting against policies based on race,
she made the majority
that saved affirmative action in higher education.
GREENHOUSE: It was a case being pushed on the Court
by the Bush administration
about admissions to the University of Michigan
GEORGE W. BUSH: The Michigan policies
amount to a quota system
that unfairly rewards or penalizes prospective students
based solely on their race.
Please continue to support equality
and integration on America's campuses.
GREENHOUSE: Certainly, the O'Connor who first came on the Court
would never have been expected to write that opinion.
REPORTER: A divided Supreme Court handed down
its long-awaited rulings on affirmative action.
In essence, the justices gave the nation's colleges
and universities the right to select students
based at least in part on race.
NARRATOR: "Effective participation by members of all racial
and ethnic groups in the civil life of our nation,"
O'Connor had written, "is essential if the dream
of one nation, indivisible, is to be realized."
To this, as so often with controversial cases,
the justice had added a limiting caveat.
SANDRA DAY O'CONNOR: We expect that 25 years from now,
the use of racial preferences will no longer be necessary.
GREENHOUSE: Arbitrary? Of course.
But it was a way of sending a message, saying, you know,
"We're doing something we're not
"totally comfortable with, but we think we're doing it
"for the right reason-- we expect the right result.
"It's not going to be overnight,
but we don't want it to be forever-- 25 years."
DINH: She recognizes the incredible racial injustice
that defines our country's history.
But she rejects the idea
that we are a society permanently divided by race.
She could have picked 50 years.
She could have picked five years.
That's her sense of optimism in the continuing,
gradual social progress that our society makes,
that she believes in.
NARRATOR: If O'Connor's open-mindedness read to some as inconsistency,
it did nothing to diminish speculation
that she might soon sit at the Court's helm.
Now, think about this for me for a second.
All right. I want you to just think about this.
Mm-hmm. (audience laughter)
50 years ago,
you, you can't get them to interview you.
Right. And now you would be,
if the president decided...
If Rehnquist decided to retire first,
wouldn't it be great,
this sort of continuum from this brilliant graduate
of Stanford Law School who couldn't... No.
...get a job in a law firm... No, look...
Who all of a sudden... (audience laughter)
No, no, no. (laughing): All of a sudden
is the first woman Chief Justice? No.
No, see, that's something... Having been
the first woman justice, the first woman
Chief Justice? No, that's something
the media would think was a neat arrangement,
but in fact is not very sensible.
I am old.
NARRATOR: From early 2003 on,
while O'Connor was poring over briefs and writing memos,
John was there in her chambers, his Alzheimer's so advanced
that he was no longer able to look after himself.
Stoic as ever, Sandra had taken charge of his care.
SCOTT O'CONNOR: Mom wanted to do it all herself.
You know, didn't want the help
because she felt it was her duty, you know.
Dad had been so supportive of her all those years,
it was her duty to love him
and take care of him no matter what.
MCGREGOR: She tried to find ways to deal with it.
You know, taking him to the office with her,
finding people to sort of watch over him
when they were at political events or public events
where she needed to be doing something.
And eventually, that just became impossible.
NARRATOR: In 2005,
as President Bush settled in to his second term,
O'Connor seized the moment.
A short time ago,
I had a warm conversation with Justice Sandra Day O'Connor,
who has decided to retire
from the Supreme Court of the United States.
And she and John and their family
have our respect and good wishes.
GREENHOUSE: People were shocked.
The one that everybody expected
was going to retire was Chief Justice Rehnquist,
who was desperately sick with a type of thyroid cancer.
So the country was really in a state of shock.
And also, of course, the reason she gave
was that her husband needed her care.
Now, male justices have been known to have wives
who get very sick,
but they don't-- they don't leave
to take care of their wives, right?
This was something new.
REPORTER: Now the president must choose someone
to succeed the moderate Sandra Day O'Connor,
often the deciding swing vote, as the Court prepares to tackle
such divisive issues as access to abortion
and physician-assisted suicide.
REPORTER: Viewing the president's victory
as an endorsement of their social agenda,
conservative religious leaders say
they're putting a list of demands
on the table, and they expect this White House to respond.
GREENHOUSE: It did seem that the opportunity
for shifting the Court to the right
had unexpectedly presented itself.
I mean, had the person who had announced the retirement first
been Chief Justice Rehnquist, it was going to be hard
to run to the right of William Rehnquist.
But it was going to be easy
to run to the right of Sandra O'Connor.
And today, final tributes to the late William Rehnquist
at the Supreme Court, where he served...
GREENHOUSE: What happened was,
Chief Justice Rehnquist then died less than two months later.
So the Court was faced with two vacancies.
But it was hers that was really the more significant vacancy.
NARRATOR: O'Connor was meant to have been replaced by John Roberts,
a conservative in the mode of Justices Thomas and Scalia
who satisfied Bush's base
without completely antagonizing Senate Democrats.
Instead, Roberts was given Rehnquist's seat,
and O'Connor obligingly agreed to stay on-- delaying her plans
an additional four months
until an acceptable nominee could be found.
REPORTER: New Supreme Court Justice Samuel Alito.
The New Jersey native was sworn in
by Chief Justice John Roberts.
REPORTER: He comes to the Supreme Court with the lowest number of votes
in the Senate since Justice Clarence Thomas.
DICK DURBIN: A chill wind blows,
a chill wind which will snuff out the dying light
of Sandra Day O'Connor's Supreme Court legacy.
GREENHOUSE: Justice O'Connor, in her role on the Court,
stood astride a widening gulf that was polarizing America
and threatening to polarize the Court.
JOHN KERRY: What could possibly be
more important than an entire shift
in the direction of the Supreme Court of the United States?
GREENHOUSE: And indeed, when she left and was replaced by Samuel Alito,
who's a conservative gut fighter, the Court did change.
NARRATOR: With O'Connor gone, the Court's new conservative majority
swiftly rewrote the rules of American life--
sidestepping precedent as they relaxed restrictions
on campaign finance,
upheld a ban on certain late-term abortions,
and further curtailed the use of racial preferences
to promote diversity in education.
GREENHOUSE: Justice O'Connor exercised her power
inside the Court pretty wisely.
But she wasn't in a position
to build structures that would protect the kind of
centrist and minimalist approach that she took to so many cases.
She noted this quite ruefully herself
within a few years after she left the Court,
that things were being, as she put it, dismantled.
The way that you solve that is by making sure that your,
your rulings and your writings are airtight.
You don't leave ambiguity.
And a lot of her rulings were open to somebody else
having a brand-new idea
and twisting them one way or another.
MURRAY: If you're making these sort of incremental, piecemeal moves,
all you need is someone who's willing to take a big leap
to just sweep you off the board.
And that's what happens.
NARRATOR: A mere five years after O'Connor's departure,
her critics already were mourning the centrist court
she had defined and what one called her
"knack for expressing the views of the moderate majority."
"America would be a different place today
if Justice O'Connor were still on the Court," the elegy ran.
"For her impressive but now embattled legacy, I miss her."
HIRSHMAN: It's a little easier to see the value in incremental change
when you think the arc of history
is bending toward justice.
Sandra Day O'Connor thought the arc of history
was bending toward justice.
It had in her own lifetime.
If you look at her life,
going from being unable to get a job as a lawyer
to being on the Supreme Court of the United States,
that's a pretty great arc!
She did not see that the arc
had taken a detour.
NARRATOR: O'Connor often said that once she made a decision,
she did not look back.
But stepping down from the Court haunted her.
It didn't help that she'd done so to care for John,
who by 2007 no longer even recognized her.
Effectively alone after more than
a half-century of partnership,
O'Connor was left to contemplate her future.
"I've got five years where I'll still be relevant,"
she told friends.
With the fractious politics of the recent past
uppermost in her mind, she decided to spend those years
promoting civics education.
JON STEWART: Justice Sandra Day O'Connor.
NARRATOR: A subject that by 2009 had ceased to be
a requirement in more than half of the states.
Only a third of Americans
can even name the three branches of government,
much less say what they do.
How do you like that? That's not good.
No-- that's what I thought. (audience laughing)
Only a third can name the three branches?
I thought you were going to say
only a third could name the Supreme Court justices,
but literally can't name the three branches of government? Oh, no-- right.
Right. Can they name, let's say, an "American Idol" judge?
Yes, 75 percent of them can name
at least one "American Idol" judge.
(laughing): Is that true? Yeah, that's true.
Help us understand how you might have
changed while you've been sitting on the Court.
Well, I hope I've learned a few things.
NARRATOR: For years, O'Connor had carried around
a copy of the Constitution.
She pulled it out during interviews so often,
it began to seem like a prop.
Here it is, um...
NARRATOR: But she had genuine faith in those pages
and the government that rose from them,
and its ability to withstand the challenges that would come,
inevitably, with the passage of time.
The key was to keep the conversation going,
and, as she liked to say,
to learn "to disagree agreeably."
EVAN THOMAS: Justice O'Connor believed all those good things
about the balance of power and the Bill of Rights
and the separation of powers.
The Constitution was a living document to her.
But on a much more profound level,
she believed in the unwritten laws of democracy,
that you have to be respectful of the other side
and you have to work out problems with people
you don't necessarily agree with.
She lived that, she preached it, she embodied it.
REPORTER: How do you want to be remembered in history?
SANDRA DAY O'CONNOR: The tombstone question.
What do I want on the tombstone? (laughter)
I hope it might say, "Here lies a good judge,"
that I would be remembered for having given fair
and full consideration to the issues that were raised
and to resolving things on an even-handed basis,
and with due respect and regard
for the Constitution of this country.
HIRSHMAN: She knew she could do it,
and that it was unjust for her not to get a chance
to use her capacities, and that it wasn't just about her.
She was faithful to that, and it made a big difference.
As she said, she was the first, but she was not the last.