Justice  /  Book Review

The First and Last of Her Kind

The legal academy has grown dismissive of Justice O’Connor, but the Supreme Court is not a law school faculty workshop. She saw herself as a problem-solver.
Evan Thomas

It’s tempting to view her as a late-twentieth-century everywoman who showed up as ideological lines were hardening and the search for absolutes, in politics and law, was fast becoming the order of the day. The rise of the Christian right had disturbed her back in Arizona politics, and she remained wary. Not for her the formulaic “originalism” of her sharp-tongued colleague Antonin Scalia, who joined the Court in 1986. The well-known charms of the Court’s leading liberal, William Brennan, eluded her from the start. “It will be years before I learn all the habits and customs of this unusual place,” she wrote in her journal in a rare display of insecurity toward the end of her first year on the Court.

O’Connor joined the Court three years after the Bakke decision had left the future of affirmative action poised on a knife’s edge, permitting consideration of race but barring the use of racial quotas. The affirmative action cases in which O’Connor played an important part could fill an entire book. Early in her time on the Court, her attitude toward affirmative action veered between skepticism and hostility. It was a “bedeviling question” for her, Thomas observes, “partly because she occupied an ever lonelier no-man’s-land between the conservatives, who wanted to end affirmative action, and the liberals, who wanted to preserve it.” His account culminates with the 2003 University of Michigan Law School case, Grutter v. Bollinger, in which O’Connor’s opinion for a 5–4 majority preserved affirmative action in higher education for what she suggested should be twenty-five years—although it would hardly be a surprise now if the expiration date were to come sooner.

O’Connor knew from the beginning that she would be in the spotlight of this high-profile case. “This is going to come down to me,” she told one of her clerks. Thomas suggests that she was looking for a compromise; in a companion case, challenging Michigan’s more rigid approach to affirmative action in its undergraduate college—“with a whopping 20 points (out of 100 needed to gain admission) assigned purely for race”—she voted to invalidate it. That the “establishment elite” had lined up in support of the law school’s more “holistic” plan, arguing that major institutions needed to “look like America,” may have turned the tide for O’Connor, “who often mixed with corporate executives,” Thomas notes. “She didn’t like affirmative action,” Thomas quotes a conservative law clerk reflecting “ruefully” years later, “though she was the one to save it.”