First by Evan Thomas (Review)
This book had been on my reading list for quite some time as a possible book to share with my daughters. Evan Thomas is a journalist and an attorney, which was a vantage I appreciated as he set out to tell the story of Sandra Day O’Connor and the Supreme Court. Thomas is an excellent storyteller, and his approach is accessible and evenly paced, while also offering interesting insight into her judicial philosophy and the process of the court. I find the Supreme Court and its inner workings fascinating, and Sandra Day O’Connor is a compelling subject. I think First is a book that even non-lawyers will appreciate the material, and I recommend Thomas’s book for anyone with an interest in understanding the highest court in the land.
Here are some interesting points I gleaned from First:
The stories of Sandra Day O'Connor during her youthful days on the Lazy B Ranch in Arizona were enjoyable and offered helpful context for O'Connor’s background. Her Stanford days were similarly interesting, particularly how it set the stage for principles of classical liberalism with a bedrock of conservatism. Reconciling those principles is the lost trait of the modern GOP.
The stories of O'Connor and “Bill” Rehnquist dating before evolving to dear friendship was really quite remarkable. Rehnquist’s confirmation shows how tiny the circles were back then, which makes it a touch less surprising that the two friends would both ascend to the Supreme Court.
It was when O'Connor joined the Arizona Senate when I thought the story grew most engaging. I appreciated learning how in-the-trenches politics shaped her relationship-building on the Supreme Court. During that time in office, Representative Art Hamilton, the first African American in the Arizona House, fitted O'Connor with a description I would love to see more often in our elected officials: “By her nature a fair person; she had a basic sense of fairness as the core of her being.”
I laughed aloud at this story about O’Connor’s interaction with Arizona’s House Appropriations Chair, Tom Goodwin. Goodwin marched up to O’Connor during a budgeting disagreement.
Goodwin: “I heard you called me a drunk.” O’Connor: “I did.”
Goodwin: “If you were a man, I'd punch you in the nose.”
O’Connor: If you were a man, you could."
The story of O’Connor’s ascension to the Arizona Court of Appeals shows the critical role of connections. Hattie Babbitt, First Lady of Arizona and wife of Governor Bruce Babbitt, was a practicing attorney before Judge O’Connor. At that time, there were few female, practicing attorneys in Arizona, and Hattie influenced her husband to include O’Connor on his shortlist of potential appointees. The Babbitts were a well-connected Arizona family, as were the O’Connors. That the appointment may have eliminated O’Connor as a gubernatorial opponent may have also been a factor. As always, connections matter (see O’Connor’s social evening with Justice Burger leading O’Connor to the Judicial Fellows Committee to boost her standing as a potential nominee).
The backstory on Mississippi University for Women v. Hogan—the opinion O’Connor wrote on the Equal Protection Clause—was quite insightful. There the Court held that the female-only admissions policy of the Mississippi University for Women violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. A male sued for admissions and won, but the question from the case was whether strict scrutiny review would apply. O’Connor helped develop intermediate scrutiny, which served as a foundation for future gender cases.
First was helpful in adding flesh to my understanding of pragmatism as a legal theory. The approach is a bit too amorphous for me and frustrated me in law school. But Evan Thomas does an excellent job of fleshing out the complexity of jurisprudence and judicial theory. The insight from O’Connor’s clerks added clarity to how she sought to work narrowly with incremental opinions and deference to the states—a minimalist approach. The approach may not be the course I would take, but it is interesting learning about the different approaches to jurisprudence.
John O’Connor (Sandra Day’s husband) dubbed himself the “Honorary Chairman of the Association of Male Auxiliaries of the United States.” He also named Dennis Thatcher (Margaret Thatcher’s husband) as chair of the international branch. There motto was, “To the stars by virtue of our wives.”
In the 90s, O’Connor gained a reputation as a new feminist. Court observers saw a particular care in how O’Connor treated cases involving women and children. This element did not change her minimalist and incremental approach to jurisprudence, but it is an interesting element to her approach.
O’Connor also became a spokesperson for the rule of law. She was a jetsetter around the world. One lawyer from Kansas, Mary Noel Pepys, joined Justice O’Connor in Bulgaria and commented that no one said, “no” to O’Connor. She leaned on lawyers like Pepys to join her for global travels to promote justice and independent courts.
Evan Thomas’s insight from O’Connor’s clerks proved most interesting to me. One highlight from her clerks included participating in group hikes and morning aerobics, which culminated into a theme: O’Connor both preached and modeled a balanced lifestyle. She was a tirelessly hard worker, but she insisted on time for family, time for exercise, and time for leisure. It is an example to follow.
The relationship and contrast between O’Connor and Scalia was insightful. Their relationship was cool yet civil. They once played doubles against each other. Sandra and John played against Scalia and a mutual friend. The O’Connors won and Scalia said, “we are not playing again.” Scalia wanted bright-line rules with his jurisprudence; O’Connor was more situational, conditional, and incremental. O’Connor’s civility contrasted with Scalia bite. It reached a point that Scalia’s friend, Justice Ginsburg, told Scalia he needed to change his approach because he was harming relationships and the Court.
Justice Sonia Sotomayor offered this analysis of Sandra Day O’Connor: “She had an unerring instinct for what the citizenry could accept—an instinct for the middle as a centrist with respect to every issue. She would find the sweet spot where the settlement of incredibly difficult issues could be accepted. That was her brilliance…No one could have done it better. The country is stronger as a result.”
Sotomayor’s assessment seems like a sound summary of O’Connor and a tribute to her time on the court. There are certainly risks to having former politicians on the Supreme Court, but O’Connor demonstrated the virtue of knowing how to build coalitions in a conciliatory manner. It’s hard to find examples of O’Connor’s brand of civility in today’s political arena, but it is an example worth remembering and emulating. First presents this theme in O’Connor’s life from start to finish and simultaneously tells the story of a most impressive individual.
