What Sandra Day O’Connor Did as the Swing Vote on the High Court

Justice Sandra Day O’Connor died last Friday at the age of 93. She was a famously complicated icon and, of course, the first woman justice of the Supreme Court. Self-confident and often brusque, she instituted an aerobics class for female SCOTUS clerks and brought justices and their spouses together over food. She was criticized for proposing small-bore, pragmatic solutions to sweeping problems, but her decisive fifth vote ensured that her view of the law was dominant for well over a decade.

To remember the justice, I spoke with RonNell Andersen Jones, a former O’Connor clerk who is now the university distinguished professor and the Lee E. Teitelbaum chair in law at the University of Utah. She is a nationally recognized expert on the intersection of First Amendment law and the courts, and for the 2023–24 academic year, she is a senior visiting research fellow at the Knight First Amendment Institute at Columbia University. Our conversation has been lightly edited for clarity.

Dahlia Lithwick: You clerked for Justice O’Connor in 2003, a term that was just about the time that she was being feted in the press as the single most powerful person in the country. I’m thinking of Jeffrey Rosen writing in the New York Times in 2001 a piece called “A Majority of One.” You were clerking for her at a moment where, literally, she was the decider, the boss. And I wonder if you could just sketch out for people who are probably hearing a lot about how she was an affirmative action pick in 1981—and she came from an inferior court and nobody knew who she was and she wasn’t even very well rated—how she became, in the span of two decades, the most influential person at the U.S. Supreme Court at the beginning of the new millennium.

RonNell Anderson Jones: I really do think that it’s a remarkable arc. And it’s because of her and who she was as a person and the kind of thinker she was—a pragmatist very much focused on the court as an institution. And I think that drew her to try to be something of a mediator and a pragmatist. But also, she stood still in her ideology and the court itself shifted around her. I don’t think that she expected to take on that role. I know from having been in the building and in the chambers that she didn’t particularly relish it. I guess a lot of lawyers and judges and justices would think it was fantastic to have headlines like the sort that you described—to be declared the most powerful person in the world, and to have it be known that it was your court. But she did not feel like that. I think that she wished it weren’t so, and wanted very much for there to be consensus and for the court itself to be respected as an institution. But I think the burden of being the swing was heavy on her.

O’Connor was seen as this trailblazing feminist icon, but in a lot of ways she was the antithesis of that. The juxtaposition of Ruth Bader Ginsburg was entirely another generation of feminist. O’Connor was famously the cowgirl. She is forever pegged as the country-club Republican in the fastidious little suits. She certainly was, at least initially, very much on board with the Reagan administration, who thought she was going to be great on reversing abortion rights. In the end, O’Connor betrayed the conservative legal movement on abortion in Casey in 1992. Help us parse how, for Sandra Day O’Connor, gender mattered both a lot and not at all.

Justice O’Connor once told me that being a woman was both her most important trait as a lawyer and her least important, and that always really sat with me. And she said, “You know, the same is true of you.” I was a first grader when she joined the court. So I never really knew a world in which it was impossible for women to achieve the highest rank of the legal profession, at least. And then I would hear her tell, firsthand, to audiences the experiences that she had had coming straight out of law school and being asked about her typing skills, despite being at the top of the class, and being offered only secretarial positions. She was a product of her time in a lot of ways.

And because she was such a pragmatist, she thought about the law through that lens. She thought about the law by way of its impact on people in the real world. The gender issue for sure shaped her jurisprudence in that space. But I think her role as a Westerner shaped her states’ rights views, and her role as a person who had been elected to public office shaped her view on a lot of issues that were related to elected officials. It was all of-a-piece for her. She said lots of times that she would like her tombstone to read, “Here lies a good judge.”

I think she did feel the weight of the historical burden on her shoulders. She wanted to make sure that while the spotlight was shining on her, she was doing right by the country and doing right by the women of the country. But it’s also the case that she did have a lot of humility to that task.

Those of us who clerked for her often like to talk about this phrase that she would use when she was making decisions, when we would be having a heated discussion about the points being made by competing sides in the briefs. She would sometimes throw up her hands and she would say, “Oh, help.” None of us were really sure who she was asking for; whether it was that she wanted the clerks to help or if she wanted heaven to bestow some help upon us. It was mostly just a sort of exasperated cry of modesty that she recognized that the task was really big.

I think that everybody who’s taking seriously the job of being a justice of the United States Supreme Court feels that way. But I think she particularly felt it because of this extra spotlight that was on her from the historical role.

I was just yesterday taking a walk with my dad, who’s not much younger than Justice O’Connor, and I quoted to him that line that I have heard was actually on a throw pillow in her chambers: “Maybe in error but never in doubt.” Is that really a thing that she had embroidered on a cushion?

That’s true. It was there.

I love it because it goes to this exact question, which is the sense of her performing certainty, even in the uncertainty. I’m thinking of how she always asked the first question at oral argument. She was very, very clear that she knew the way, and yet, as you say, she was really changing and thinking and listening to the country.

Justice O’Connor was, above all else, maybe, an institutionalist. She thought a lot about the court as an institution. She thought about the integrity of the court, and she thought about its legitimacy in the eyes of the people. It was behind a lot of the pragmatism that she showed she was thinking about the rule of law and the doctrinal outcome. But she was also thinking about real police officers on the street in Fourth Amendment cases and real speakers in First Amendment cases and real women in affirmative action cases. Consequences for the people were always in her mind, as well as consequences for the court. I think that’s absolutely the explanation for what we saw in Casey, where she cared enough about the court’s role and the legitimacy and integrity of the court that she elevated that as a primary ideal. And I think the finality also ties into that: Once we have decided something, we need to own that, lean into the message of the pillow and just have it be the case that maybe we were in error, but part of our obligation to the public is to provide some finality.

What is the enduring thing that we don’t understand about Sandra Day O’Connor, the legend, the icon, the rock star, that you think about, that you tell your kids about, that might surprise us a little bit in just mulling over her legacy today?

She definitely modeled for me, and for all of us, what it means to be a good lawyer, but also what it means to be a good person. She believed to her core in hard work and in bridging divides, and in the power of ordinary people to make a difference. We talked at the beginning about the headlines that were declaring her the most powerful, most important person in the world. And she was, in a lot of ways, at that very time period, modeling to other people that they were the most important people in the world.

My all-time favorite story about my time with Justice O’Connor was when, in the years after I clerked for her, I worked at the University of Arizona and she came to do a short course. We team-taught a course about the U.S. Supreme Court. And in the days leading up to it, I was taking my little boy to his soccer practice and I just offhandedly said to him and to his little friend who was in the back seat, “I just need you to remind the coach that we won’t be at practice later this week, uh, because the justice is coming into town.” And the little friend who was in the back seat said to my son, “What is a justice?” And my son instantly said, “Oh, that’s a sort of a fancy word for grandma.” And I was of course mortified that I had not somehow communicated to my kid what it meant to be a justice of the United States Supreme Court. But I was also just incredibly touched, because it absolutely captured that sentiment, right?

That was how she presented herself to my kids. The New York Times was calling her the most important person in the world, and she was conveying to them that they were the most important people in the world. And I think that she was modeling humility in strength. I think that is really remarkable. She modeled courage and competence and self-confidence, but also incredible kindness, and that’s what I hope people can know and remember about her.