Vol. 16 No.2 (February 2006), pp.142-145


SANDRA DAY O’CONNOR: HOW THE FIRST WOMAN ON THE SUPREME COURT BECAME ITS MOST INFLUENTIAL JUSTICE, by Joan Biskupic.  New York, NY: HarperCollins Publishers, 2005.  432pp. Cloth $26.95.  ISBN: 0-06-059018-1. 


Reviewed by Craig Hemmens, Department of Criminal Justice Administration, Boise State University.  Email: chemmens [at] boisestate.edu. 


In SANDRA DAY O’CONNOR, Joan Biskupic, a veteran Supreme Court reporter for the WASHINGTON POST and USA TODAY, provides a timely, fascinating and insightful account of the life and work of the first woman on the United States Supreme Court. Justice O’Connor has been the swing vote in a number of important 5-4 decisions. While her vote is generally acknowledged as crucial in close cases, many observers have questioned Justice O’Connor’s long-term impact on constitutional law. Her approach to deciding cases has been denigrated as lacking in vision or a consistent theoretical foundation, and her repeated appearance in the majority in 5-4 cases has oft times been dismissed as due solely to her centrist viewpoint rather than a testament to her ability to build a coalition and persuade colleagues of the correctness of her point of view. As Justice Brennan, her frequent opponent on the Court in the 1980s, was wont to say, “all it takes is five [votes].” Justice Brennan was hailed as a great consensus builder, as someone whose political skills allowed him to build a majority in a number of close cases. Justice O’Connor has rarely been given the same credit. Ms. Biskupic’s portrait of Justice O’Connor should go a long way towards remedying this inaccurate depiction.


Ms. Biskupic’s biography is unauthorized. Justice O’Connor guards her privacy fiercely, and has repeatedly refused to comply with interview requests and promised not to release her papers until long after she is off the Court. Despite this lack of cooperation from her subject, Biskupic has done an admirable job of interviewing current and former justices and law clerks, and reviewing the papers of retired justices, particularly those of Justice Powell (who was a mentor of sorts to Justice O’Connor) and Justice Blackmun (who apparently kept everything he ever wrote or received from his fellow justices). Biskupic is also able to build upon her fifteen years of covering the Supreme Court. The book is extremely well-documented.


Ms. Biskupic has written a book that is both accessible to a lay audience and of value to a scholarly audience. While constitutional scholars will learn little about the written opinions that they did not already know, there is quite a bit of information on the interpersonal relations of the justices. Some would call this gossip; I prefer to think of it as useful background information. Lay audiences will appreciate the clarity of Biskupic’s writing and her ability to clearly lay out the issues in some complicated areas of the law, including affirmative action, abortion rights, and habeas corpus. Biskupic occasionally [*143] lapses into hyperbole and cliché, and has a tendency to repeat some stories, but these are minor irritants and may be blamed in part on the press’ rush to publication upon Justice O’Connor’s announcement in Summer 2005 of her intent to retire. The rush to press also likely explains the typos that occur more frequently than one might expect.


The picture of Justice O’Connor that emerges from this book is complicated. She is clearly intelligent and possesses a very strong work ethic. Indeed, she apparently is unable to sit still. She moves seamlessly from writing opinions to attending Washington social and political functions, to playing competitive golf and tennis, to traveling to international judicial conferences. Justice O’Connor also comes off as a pragmatist and politician, rather than as an ideologue. She came to the Court with strong beliefs on a variety of issues, including abortion, affirmative action, the death penalty, and states’ rights, but her position on some of these controversial issues moderated over the years.


She is portrayed as invariably upbeat and kind to her colleagues, even in the face of mistreatment by Chief Justice Burger (who refused to give her any meaningful opinions), Justice Blackmun (who was rude and condescending) and Justice Scalia (who repeatedly attacked her reasoning in his opinions). Her opinions indicate a lack of understanding or similar compassion for those not similarly situated, however. She repeatedly ruled against the poor and the powerless. In upholding Roger Coleman’s death sentence, in the face of his appeal that contained strong evidence that he did not get a fair trial and might in fact be innocent, she stated “this case is about federalism.” Not to Roger Coleman! She also was reluctant to acknowledge the moral necessity and legal validity of affirmative action.


While Biskupic’s portrait is largely quite sympathetic, it is not laudatory. Justice O’Connor is depicted as someone who got to the Supreme Court through a fortunate combination of hard work, the right connections, and timing. This is not much different from most appointees, however. What is clear is that Justice O’Connor was a masterful politician who was apparently willing to compromise (some would say reevaluate) her beliefs as times changed and the political winds shifted. She was originally an outspoken supporter of the Equal Rights Amendment and supported the decriminalization of abortion as an Arizona legislator, but downplayed and obfuscated her position on these issues when it became clear President Reagan was considering her for a position on the Supreme Court. She initially opposed racial gerrymandering designed to promote minority political candidates, but she later endorsed it in limited form. She staunchly opposed most affirmative action polices early in her tenure, but came to support them in later years.


Ms. Biskupic argues that O’Connor did not so much move to the left as the Court moved to the right. There is certainly some truth in this, but it also appears that she epitomizes Tom Dooley’s aphorism that “the Supreme Court follows the election returns.” As the political winds shifted, she shifted [*144] with them. Some would condemn this as a sign that she lacked a consistent philosophy of judging. Others would say this was a plus, that Justice O’Connor’s lack of a rigid ideological stance allowed her to take each case on its own merits.


Ms. Biskupic suggests Justice O’Connor’s move to the center may have been caused, in part, by her reaction to her battle with breast cancer in 1988, a health scare that understandably had a major impact on her. Another possible explanation is that she recognized she was situated between two fairly solid groups of justices, and that she therefore could often control the outcome in close cases. Other commentators have suggested O’Connor gained power by default, in that she just happened to be in the middle of two warring camps on the Court. Biskupic suggests O’Connor’s gain in influence was more complicated, that she changed her opinion on several controversial issues, and on others (such as abortion) may have decided to go with precedent over ideology. This would explain her part in creating the “undue burden” test and leading the “troika” that saved ROE. Biskupic makes a strong case that Justice O’Connor was a crucial swing vote not because she was indecisive but rather because she was truly a centrist in her approach. More a politician than a legal theorist, she followed the election returns, and her views, Biskupic argues, most closely matched those of the great middle of the American electorate—from abortion, to affirmative action, to religion.


One shortcoming of the book is the relative paucity of material dealing with the late 1990s and beyond, except for a discussion of BUSH v. GORE. The obvious explanation for this is that the book is based in large part on justices’ papers of the justices, especially Justices Blackmun and Marshall, who left the Court in the early 1990s. Readers interested in an extensive discussion of the role played by Justice O’Connor in APPRENDI v. NEW JERSEY and the subsequent sentencing cases will have to wait for another biographer to fill the void.


Cass Sunstein (2005) cites Justice O’Connor as an example of a “judicial minimalist,” a justice who does not focus on rules but on standards, and who makes a conscious choice not to move the law too far in any direction too quickly. Such a justice does not have an overarching view of the law, but seeks to take each case on its own merits. Many on the left (Justice Brennan) and right (Justice Scalia) find such an approach difficult to comprehend, but it is an approach that may closely reflect the values of the majority of Americans. It is hard to find strong supporters of Justice O’Connor on either the far left or the far right of the political spectrum, as in the end she was of neither. In a court marked by strong views, this may have been the best thing for America.






APPRENDI v. NEW JERSEY, 530 US 466 (2000).


BUSH v. GORE, 531 US 98 (2000).


ROE v. WADE, 410 US 113 (1973).


© Copyright 2006 by the author, Craig Hemmens.