< Sandra Day O'Connor, first woman on the Supreme Court, dies

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Retired Supreme Court Justice Sandra Day O'Connor died today at the age of 93. She was the first woman to serve as a justice on the Supreme Court, and her tenure lasted a quarter of a century on the nation's highest court. After her retirement, she became an outspoken critic of what she viewed as modern threats to judicial independence. NPR legal affairs correspondent Nina Totenberg has this remembrance.

NINA TOTENBERG, BYLINE: During her tenure on the Supreme Court, Sandra Day O'Connor was called the most powerful woman in America. Because of her position at the center of a court that was so closely divided on so many major questions, she often cast the deciding vote in cases involving abortion, affirmative action, national security, campaign finance reform, separation of church and state, states' rights and, of course, in the case that decided the 2000 election, Bush versus Gore. Her retirement allowed President Bush to appoint a far more conservative justice in her place, and that appointment tilted the court in a decidedly more conservative direction.

O'Connor's retirement was the last step in a career that often had to balance family and career. In 2005, O'Connor's husband was suffering from Alzheimer's disease. And when the ailing Chief Justice William Rehnquist told her that he was putting off his retirement, O'Connor decided that with her husband's health declining, she could not wait and risked the possibility that the court would have two vacancies at once. As it turned out, that's what happened anyway. O'Connor announced her retirement, and the chief justice died weeks later. She stayed on for another six months while the confirmation hearings proceeded. And in a cruel twist of fate, her husband's health took such a precipitous downward turn that he had to be placed in a home. O'Connor wept on her last day on the bench, but she went on to lead a multifaceted life, most notably crisscrossing the United States, crusading against threats to judicial independence.

Sandra Day O'Connor spent her early life riding horses and roping steers on the Lazy B, a 250-square-mile cattle ranch owned by her parents on the Arizona-New Mexico border. At age 10, she was sent away to school. And at age 16, she enrolled at Stanford, eventually graduating from law school third in her class. On the job market, she soon learned nobody seemed to want to hire a woman lawyer. After every job door was closed in her face, a desperate O'Connor finally made an offer to the San Mateo County attorney, an offer she hoped he would not be able to refuse.

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SANDRA DAY O'CONNOR: I wrote him a very long letter explaining all the reasons why I thought that I would be helpful to him in the office and offering to work for nothing if that was necessary.

TOTENBERG: In the beginning, it was. But she soon was put on salary, and when she and her husband John moved to Arizona, she continued practicing law, stopping only when a dearth of babysitters forced a five-year hiatus to raise her three sons. Soon, she was a figure to be reckoned with in Arizona's political life. Elected to the state Senate, she quickly rose in Republican ranks to become the majority leader, then was appointed a state trial judge and a state appellate court judge.

By then it was 1981, and with the retirement of Justice Potter Stewart, President Reagan had a Supreme Court vacancy to fill. Stewart's imminent retirement was known to only a few inside the administration, and there was initially something of a battle over whether the president should fulfill his campaign promise to appoint a woman. Ken Starr, then an assistant to Attorney General William French Smith, recalls that staff aides examined Mr. Reagan's campaign words carefully, concluding he had not made an ironclad pledge. And some administration insiders urged the president to use this first appointment to name Robert Bork or some other conservative luminary to the high court. But that was not to be, says Starr.

KEN STARR: President Reagan was not a word parser, and he felt that he had made a moral commitment to appoint a qualified woman to the Supreme Court, that it was long overdue, etc. And that's what our marching orders were.

TOTENBERG: But back then, the list of qualified women with any conservative credentials at all was a short one. Starr believes that O'Connor's name was first suggested by then-Justice William Rehnquist, a fellow Arizonan and a classmate of O'Connor's at Stanford. She soon won the nod from President Reagan.

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RONALD REAGAN: So today I'm pleased to announce that upon completion of all the necessary checks by the Federal Bureau of Investigation, I will send to the Senate the nomination of Judge Sandra Day O'Connor of Arizona Court of Appeals for confirmation as an Associate Justice of the United States Supreme Court. She is truly a person for all seasons.

TOTENBERG: In Arizona, Judge O'Connor met the press.

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O'CONNOR: This is a momentous day in my life and the life of my family, and I'm extremely happy and honored to have been nominated by President Reagan for a position on the United States Supreme Court.

TOTENBERG: O'Connor later acknowledged that her appointment was a, quote, "affirmative act," that she was not among the most qualified judges or scholars. But she won quick confirmation, her only opposition coming from right-to-life groups suspicious that she would not vote to overrule Roe v. Wade. Those fears would eventually be realized, but it would take many years. Once on the court, O'Connor's main concern, she later said, was whether she could do the job. If I stumbled badly, she said, it would make life much more difficult for women. As it turned out, of course, O'Connor's appointment gave a huge boost to women in the law.

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O'CONNOR: The minute I was confirmed and on the court, states across the country started putting more women on that had ever been the case on their supreme courts. And it made a difference in the acceptance of young women as lawyers. It opened doors for them.

TOTENBERG: In the years that followed, O'Connor's impact on the law would be enormous. On the court, she became part of a conservative state's rights majority, voting to strike down key portions of the Brady Gun Control Law and the Violence Against Women Act, and she wrote the court's opinion declaring that the federal age discrimination law was unconstitutional insofar as it applied to state employees seeking damages for discrimination.

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O'CONNOR: We conclude that, in stripping the states of their sovereign immunity, Congress exceeded its constitutional authority.

TOTENBERG: On the subject of racial discrimination and affirmative action, O'Connor was the key vote, writing many of the court's most important decisions. In the 1980s and '90s, she wrote landmark court decisions limiting the use of affirmative action for minority contractors, and she wrote the court's 1993 decision invalidating the use of race as the predominant factor in drawing majority-Black congressional districts. But in 2003, O'Connor wrote the court's opinion declaring for the first time that colleges and universities are justified in using race as a factor in college and graduate school admissions.

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O'CONNOR: Such diversity promotes learning and better prepares students for an increasingly heterogeneous workforce, for responsible citizenship and for the legal profession.

TOTENBERG: In each of the race cases, O'Connor followed a well-trodden path for her. Decide the case before you make a few broad and sweeping rules as possible, and leave the door open for future change in a different set of circumstances. In 2004, she walked a similar careful line in the court's first enemy combatant case when she wrote the key opinion declaring that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.

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O'CONNOR: Due process demands that a United States citizen held in the United States as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.

TOTENBERG: In no area, though, was O'Connor more careful and successful at carving out a middle ground than on questions involving abortion. When she joined the court, a woman's right to an abortion was spelled out in Roe v. Wade as a relatively absolute right to privacy. But less than two years after joining the court, O'Connor dissented from a major extension of Roe, saying that in her view, a state could regulate abortions unless those regulations imposed an undue burden on a woman's right to choose. Six years later, her separate concurring opinion in an abortion case allowed more state restrictions but made it clear that she had deprived the court's four conservatives of a fifth vote to overrule Roe v. Wade. In 1992, the issue was back before the court, and O'Connor, joined this time by Justices Souter and Kennedy, voted to sustain what they called the core holding of Roe - a woman's right to an abortion - but using O'Connor's undue burden test.

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O'CONNOR: Some of us as individuals find abortion offensive to our most basic principles of morality, but that can't control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. We reaffirm the constitutionally protected liberty of the woman to decide to have an abortion before the fetus attains viability and to obtain it without undue interference from the state.

TOTENBERG: Eight years later, she provided the fifth and deciding vote, this time invalidating a so-called partial birth abortion law. The statute, she said, provided no exception to preserve the health of the mother and thus imposed an undue burden. Within a year of her departure from the court, however, a new and more conservative court reached the opposite conclusion and upheld a federal ban on so-called partial birth abortions. It was a pattern that was to repeat itself in other areas of the law. When she was appointed to the Supreme Court, Sandra Day O'Connor knew she would be a role model for women. She persevered even through a bout with breast cancer. For a year, she wore a wig, looked drained and wan but never missed a court day. She presided over a period in American law when women moved from being anomalies in the courtroom to the majority of the graduates in many major American law schools, and she left a profound mark on the history of the Supreme Court and the nation. Nina Totenberg, NPR News, Washington.

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