- The Washington Times - Monday, May 12, 2003

THE MAJESTY OF THE LAW: REFLECTIONS OF A SUPREME COURT JUSTICE

By Sandra Day O’Connor

Edited by Craig Joyce

Random House, $25.95, 330 pages, illus.

REVIEWED BY BRUCE FEIN

To mimic Malvolio’s reading in “Twelfth Night,” some women are born great, some achieve greatness, and some have greatness thrust upon ‘em. Associate Justice Sandra Day O’Connor, the Supreme Court’s maiden female appointee in 1981, fits the third obelisk of luster, as do the overwhelming majority of males who have vaulted to the High Court. Her reflections on the law and women in society are corroborative. No pithy or penetrating wisdom of an Oliver Wendell Holmes, Louis Brandeis, or Benjamin Cardozo leap forth that will guide constitutional thinking for the ages.

The author’s pedestrian chronicling of her appointment and service, our constitutional history and landmarks, women and the law, the legal profession and the courts, and the rule of law is unrewarding. Emblematic is the following: “Today American women are confronted by ‘the juggle.’ While many women are able to balance a profession and home admirably, it is nonetheless true that time spent at home is time that cannot be billed to clients or spent making contacts at social or professional organizations.”

Justice O’Connor sermonizes that an unelected judiciary enjoying life tenure with the power to thwart overreaching by the legislature or executive is indispensable to freedom. Yet more than a score of States of the United States elect judges or expose incumbents to retention and still sport free societies. In Great Britain, parliamentary supremacy is celebrated over judicial supremacy without shipwrecking freedom and the rule of law. The DNA of freedom is more complex and elusive than Justice O’Connor insinuates.

On the other hand, she performs yeoman’s service discrediting the feminist gospel that gender affects judicial reasoning or decisions. She places a dunce cap on sociological-psychological blather about gender-biased justice: “As we judges put our hands upon the clay, some say that differences emerge in the ways in which women and men resolve some issues. Scholars have undertaken studies of the methods and decision making of women judges in comparison with their male counterparts.

“To my surprise, one author has surmised that my opinions differ in a peculiarly feminine way from those of my colleagues. She concluded that my opinions reveal that I have been less willing to permit violations of the right to full membership in the community, that I view the shaping of values of the community through governmental processes as an important function of the community, and that I employ a contextual approach and tend to reject so-called bright-line rules. I would guess that my colleagues on the Court would be as surprised as I am by these conclusions.

” …There simply is no empirical evidence that gender differences lead to discernable differences in rendering judgments.

” … I would echo the answer of another woman judge, Justice Jeanne Coyne, formerly of the Minnesota Supreme Court, who says that ‘a wise old man and a wise old woman reach the same conclusion.’”

Justice O’Connor is substantiated in her gender-neutral judging experience and perceptions by Associate Justice Ruth Bader Ginsburg, her more liberal colleague appointed by President William Jefferson Clinton. The second female Justice recounts: “[I]n the law, I have found no natural superiority or deficiency in either sex. I was a law teacher until I became a judge. In class or in grading papers over seventeen years, and now in reading briefs and listening to arguments in court for fourteen years, I have detected no reliable indicator of distinctly male or surely female thinking — or even penmanship.”

Both justices encountered demeaning gender discrimination in the salad days of their professional careers before climbing to the apex of the law. Justice O’Connor recalls: “I graduated near the top of my class from one of the better law schools [Stanford] in the country. My male classmates had no trouble finding jobs. I interviewed with several law firms in California but received no job offers — other than the previously mentioned job as a legal secretary.”

The reinforcing gender-neutral evaluations of law by the two justices on the nation’s most venerated court are especially persuasive because the personal sting of gender discrimination would incline them to think otherwise. Justice O’Connor’s voting record itself proves her point. For instance, she held the exclusion of males from state nursing schools unconstitutional in Mississippi v. Hogan (1982), but modestly clipped the breadth of the landmark Roe v. Wade (1973) abortion decree in Planned Parenthood v. Casey (1992) by fashioning an “undue burden” test for abortion restrictions.

In sum, women, like men, deserve appointment or election to judgeships based on legal talent, simpliciter. Gender-based insights into constitutional interpretation are fictitious. Since gender diversity on the bench is irrelevant to the excellence of judicial decisions, it seems probable that gender diversity in classrooms is irrelevant to the educational richness of the experience. That truth shipwrecks the common justification of gender-based affirmative action programs in college admissions.

Justice O’Connor inflates the decisiveness of the Bill of Rights, a written Constitution, the power of judicial review, and an independent federal judiciary with life tenure to the order and liberties we enjoy. What characteristically dominates in the interpretation and application of the Constitution in all three branches of government are the moral and intellectual orthodoxies of the day. Few officials possess the mental fortitude and cerebral strength necessary to overcome the heavy weight of what thinking prevails among peers, whether in dress or in ideas.

For example, the Supreme Court held by a resounding 8-1 majority in Plessy v. Ferguson (1896) that invidious racial segregation mandated by the State was constitutionally irreproachable under the equal protection clause of the Fourteenth Amendment. The ruling came when white supremacy commanded 21-gun salutes both in the United States and in Rudyard Kipling’s British Empire.

During the ensuing half-century, blacks fought in two world wars and in Korea, courageously protested lynchings, disenfranchisement, and economic and social degradation. They collaborated with whites to establish the National Assocation for the Advancement of Colored People. The writings of W.E.B. DuBois and Gunnar Myrdal’s “An American Dilemma” stung the conscience of white America. President Harry Truman ordered the desegregation of the armed forces in 1948.

By 1954, a decisive majority of Americans outside the South had come to believe that racial discrimination was morally repugnant. The United States Supreme Court echoed that mainstream in Brown v. Board of Education (1954) holding public school segregation unconstitutional. The equal protection text of the Fourteenth Amendment since Plessy had not changed, but racial attitudes had. And contemporary attitudes of right and wrong will trump constitutional text in the Supreme Court 99 times out of 100.

Justice O’Connor should be especially attuned to that axiom because it explains the constitutional revolution in women’s rights from Bradwell v. Illinois (1873) to Reed v. Reed (1971) achieved by pouring new meaning into the same words.

“The Majesty of the Law” is neither majestic in prose nor dotted with wisdom. It is a modest look at women and the legal landscape with much to be modest about.

Bruce Fein is a founding partner of Fein & Fein (www.feinandfein.com).

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