Sandra Day O'Connor's reflections -- the first Mrs. Chief Justice?

April 27, 2003|By Elsbeth L. Bothe | Elsbeth L. Bothe,Special to the Sun

The Majesty of the Law: Reflections of a Supreme Court Justice, by Sandra Day O'Connor. Random House. 336 pages. $25.95.

Justice Sandra Day O'Connor is an extremely powerful person. Her swing vote on the Rehnquist court pendulum -- often stuck on the right -- hit its heights when she cast a crucial vote for the man who has the power to determine her future colleagues, to say nothing of the prospects for world peace.

Without her in favor, women might not be able to get legal abortions or municipalities fund parochial education, and three-time losers might not have to serve inordinate time. Her vacillating views on capital punishment (retarded, no; juveniles, yes) spell the difference between lives and deaths. The pending fate of affirmative action likely hangs in her balance.

Thus, O'Connor's announced "reflections" upon 20 years of august supremacy suggest an exciting opportunity to get inside the head of an extraordinarily significant woman. What a disappointment! The new book is no more revealing than Lazy K, O'Connor's bucolic memoir of her childhood home on the family's 250-square-mile ranch in the American Southwest.

Skipping past her starring roles as Stanford student, lawyer, adroit Arizona legislative leader and state court jurist to her view from the irreversible heights to which President Reagan elevated her in 1981, O'Connor's thoughts about life and the law reduce to a patriotic primer of polite preachments, principally twice-told tales and warmed-over ideas.

Her demeanor is distant, O'Connor explains, because it is, "of course, off limits" for a judge to discuss "hot button issues" or gossip about the court or its members. True, a jurist should keep unpublished opinions to herself, but circumspection need not reduce the extrajudicial writings of judges to pages of platitudes.

Although there is no bar to talking about decided cases, O'Connor says virtually nothing substantive about any of her established positions on critical issues. The only mention of Bush vs. Gore, for instance, aligns it with contentious cases from the past as another example of why "It is probably not unsurprising that the court sometimes finds itself the center of public controversy."

No wonder O'Connor doesn't deign to get down to cases. The critical one that overruled the Florida Supreme Court's construction of its own election laws is impossible to reconcile with O'Connor's innate subscription to the doctrine of states' rights -- aka federalism.

On that basis, with O'Connor making possible a conservative majority, the court has decimated such remedial federal legislation as the Gun-Free School Zones Act, the Clean Water Act and the Indian Gaming Regulatory Act. Most recently, she wrote the widely criticized majority (5-4) opinion in Ewing vs. California, in which the court declined to consider whether a recidivist's sentence of 25 years to life (for stealing golf clubs) was constitutionally cruel and unusual, because "We do not sit as a 'superlegislature' to second-guess these [state] policy choices."

What about women? It goes without saying that becoming the first female Supreme Court justice renders O'Connor a role model by definition, if not by example. Her book extols women's rights, yet she made up the majority that struck down the federal Violence Against Women Act. Even the credit she claims for redecorating her colleagues' titles is contradicted by Chief Justice Rehnquist, who (in his comparatively substantial book on the Supreme Court) says the Mister prefix was dropped long before her arrival.

Of greater concern to unequal womankind, O'Connor functions as more the cheerleader than the drumbeater. Her book doesn't deal at all with the feminist flagship case of Roe vs. Wade except to say, to nobody's surprise, that "Abortion is still hotly debated." Depending on the way one looks at it, her qualified votes on the court have either blocked or beaten down the path to Roe's extinction.

Regardless of some bad bottom lines, O'Connor is perennially on good behavior. Disdaining the vituperations of her zestier colleagues, she never sees or speaks ill of any body or thing, in her books any more than in succinct opinions that give lip service to principles that commit her as narrowly as possible. This "kiss and kill" strategy is exemplified by the book's handling of civil rights luminary Thurgood Marshall, whom she honors for being one of the six 20th-century justices who "helped shape the Court."

The chapter on Marshall, titled "The Influence of a Raconteur," is illustrated with Marshall's account of a man who was convicted of double homicide by an all-white jury: "You know something is wrong with the Government's case when a Negro only gets life for murdering a white woman," Marshall quips, going on to make the point that when the defendant was advised "they could kill me the next time," he thought the better of seeking a new trial.

A poignant story, but when it mattered, O'Connor was untouched. At the very time when she must have been fondly reflecting on Marshall's influence, she endorsed the 5-4 majority in Sattazahn vs. Pennsylvania, upholding the death penalty imposed on a defendant who, at his first trial, was only sentenced to life.

All that said, and considering the competition, Sandra Day O'Connor still looks to be best bet for the next and first Mrs. Chief Justice.

Elsbeth L. Bothe retired from Baltimore Circuit Court after 18 years as a judge trying serious criminal cases, many of them murder. She became a judge in 1978 and before that, as an ACLU lawyer, successfully argued several cases before the U.S. Supreme Court.

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