The Woman in Black

O'Connor's true feminism

Justice Sandra Day O'Connor's announcement that she will retire from the Supreme Court has been followed by the inevitable political games. Democrats are urging President Bush to demonstrate his maturity by replacing O'Connor with the kind of candidate a Democrat would nominate, and Republicans are pretending that they have never opposed Democratic judicial nominees on ideological grounds.

In today's polarized atmosphere, any Supreme Court resignation or retirement would have prompted this kind of squabbling. But O'Connor's retirement has a unique gender angle: She is not only a woman, but the first woman to serve on the Supreme Court. By shattering a barrier to women's advancement, O'Connor surely earned her place in the history books. But is her gender otherwise relevant to judging her legacy?

One remarkable gender-centric assessment of O'Connor appeared on the op-ed page of The New York Times, penned by Slate editor and Supreme Court correspondent Dahlia Lithwick. A graduate of Stanford Law School, O'Connor's own alma mater, Lithwick finds O'Connor downright baffling because—well, she's just not woman enough. She recalls an O'Connor speech at Stanford in which, horror of horrors, the justice was "curt and unsentimental" and spoke rather coldly of death penalty cases. "I left the hall furious, wondering how a woman could be so heartless," writes Lithwick.

Lithwick is also aghast that O'Connor failed to find within herself the "feminine compassion" to decide the 2000 election in favor of Al Gore. (This is not a joke.) And she can't understand how someone who was a trailblazer for women could "show so little empathy to female victims of violence" when, also in 2000, she voted in United States v. Morrison to strike down a portion of the Violence Against Women Act allowing victims of "gender-motivated" crimes such as rape to sue their attackers in federal court.

Apparently, female jurists are not supposed to be concerned with things like law or facts (Lithwick derides O'Connor's jurisprudence as "narrow and fact-centered") but with "empathy," at least toward women and Democrats. The Victorians' ideal woman was "the angel of the house"; Lithwick's ideal woman is the angel of the court.

In a 1982 majority opinion that declared the exclusion of males from a state-supported nursing school to be unconstitutional, O'Connor cautioned against relying on "archaic and stereotypic notions" of men's and women's roles. That was classical feminism; the modern-day variety, alas, all too often embraces archaic stereotypes when they supposedly serve women's interests. (Feminist legal theory which holds that a "female" jurisprudence should be based on "caring" rather than such "male" abstractions as individual rights is fashionable in law schools.)

From a classical feminist point of view, O'Connor's vote against the Violence Against Women Act can be seen as striking a blow for true gender equity. This law, which would have benefited few actual victims, represented not only flagrant federal intrusion into criminal matters always handled by state courts, but a paternalistic mentality that singled out crimes against women for special protection.

Overall, O'Connor's jurisprudence was a mixed bag. Her famed flexibility and pragmatism could sometimes lead to arbitrary and inconsistent rulings: In a 1999 case that was in many ways similar to US v. Morrison, she voted to uphold federal lawsuits over sexual harassment in public schools.

Particularly unsatisfying was O'Connor's attempt to find a compromise on the issue of affirmative action: She voted to strike down a University of Michigan policy that awarded extra points to minority applicants, but to uphold a law school admissions policy in which the use of race as a factor was less explicit. The result was to preserve a system that discriminates with good intentions and may well harm its intended beneficiaries. O'Connor's prediction that such policies would no longer be needed in 25 years also demonstrates a rather poor understanding of the self-perpetuating nature of bureaucracies.

Lithwick, rather insultingly, sees O'Connor's compromises as manifestations of her "inner softie" (a woman after all!). It's more likely that her pragmatism had a lot to do with a reluctance to interfere with established practices that she believed served society well: Her decision to uphold race-based affirmative action was influenced, in large part, by briefs from corporate and military leaders.

One of O'Connor's favorite sayings reportedly is "A wise old woman and a wise old man reach the same conclusion." Agree or disagree with O'Connor in specific cases, she is a wise old woman and a worthy feminist pioneer—not least because she has always refused to be defined by her gender and to be boxed in by either feminine or feminist stereotypes.